Blacks-Law-Dictionary-6th-edition

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PREFACE 
This new Sixth Edition starts a second century for Black's Law 
Dictionary-the standard authority for legal definitions since 1891. 
Nearly every area of the law has undergone change and develop
ment since publication of the Fifth· Edition in 1979. This period has 
seen particular change and expansion in such areas as tax, finance, 
commercial transactions, debtor-creditor relations, tort liability, em
ployment, health care, environment, and criminal law. Congress and 
the states continue to legislate new rights and remedies; the courts 
continue to define and redefine legal terms; the states are increasingly 
adopting uniform or model laws and rules; and new causes of action 
and legal concepts continue unabated. 
The vocabulary of the law has likewise continued to change and 
expand to keep pace. This has necessitated not only a significant 
expansion of new words and terms for inclusion in this Sixth Edition, 
but also a reexamination of all existing entries for currentness of legal 
usage. Indicative of this growth is that this new edition required the 
addition or revision of over 5,000 legal words and terms. Thousands of 
other changes were required to update or supplement supporting cita
tions. 
As with prior editions, considerable effort has been made in this 
Sixth Edition to provide more than basic definitions of legal words and 
terms. In those instances where traditional legal concepts and doc
trines have over the years been either superseded, modified or supple
mented by court decisions or legislation, such developments and 
changes are fully reflected. Additionally, because so many areas of law 
and practice are now governed by uniform or model acts and rules, such 
major sources of law as the Uniform Commercial Code, Restatements of 
the Law, Model Penal Code, and Federal Rules are fully reflected. 
Similarly, the growth and importance of federal laws, with their impact 
on matters that were traditionally state or local in nature, is evidenced 
with a considerable number of new entries and citations covering 
federal acts, agencies, departments and courts. Likewise, the ever 
expanding importance of financial terminology has necessitated the 
inclusion of numerous new tax, finance, and accounting terms. 
Examples of word usages, with citations, have been added through
out to illustrate how specific terms are used or applied in various legal 
contexts. 
iii

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PREFACE 
Because of the inter-relationship of so many legal words and terms, 
the number of internal cross-references has been greatly increased. 
The number of abbreviation entries has also been substantially expand
ed, as has the Table of Abbreviations. 
A number of changes have been made to the pronunciation guides 
to make this feature even more helpful. A comprehensive explanation 
of these guides is set forth on pages vii-xiv with a shorter pronuncia
tion Key appearing on the inside front cover. 
New and revised words and terms for this Sixth Edition were 
prepared by Joseph R. Nolan, Associate Justice, Massachusetts Su
preme Judicial Court, and Jacqueline M. Nolan-Haley of Fordham 
University School of Law. The pronunciation transcription system and 
guides were prepared by M.J. Connolly, Associate Professor of Linguis
tics, Boston College. Words and terms of the United Kingdom were 
revised and updated by Professor Stephen C. Hicks, Suffolk University 
Law School. Tax and accounting terms were updated and expanded by 
Martina N. Alibrandi, Certified Public Accountant, Bolton, Massachu
setts. 
A Final Word of Caution 
The language of the law is ever-changing as the courts, Congress, 
state legislatures, and administrative agencies continue to define, rede
fine and expand legal words and terms. Furthermore, many legal 
terms are subject to variations from state to state and again can differ 
under federal laws. Also, the type of legal issue, dispute, or transaction 
involved can affect a given definition usage. Accordingly, a legal 
dictionary should only be used as a CCstarting point" for definitions. 
Additional research should follow for state or federal variations, for 
further or later court interpretations, and for specific applications. 
Helpful sources for supplemental research are CCWords and Phrases" 
and WESTLAW. 
St. Paul, Minn. 
July, 1990 
iv 
THE PUBLISHER

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THE PRONUNCIATION OF LATIN 
A majority of the Latin terms in this revised edition of Black's Law 
Dictionary, and also occasional English and foreign terms, have been provid
ed with pronunciation entries. The pronunciations follow a descriptive 
scheme and are based on actual usage rather than on any attempt to 
prescribe a uniform pronunciation. Where alternate pronunciations exist 
and philologically more cappropriate' pronunciation generally receives first 
listing, however. The entries provide an acceptable pronunciation in a 
transcription system compatible with the major varieties of North American 
English and extendable to other pronunciations. 
Despite its continuing decline as a working language of scholarship and 
jurisprudence, Latin still supplies a formidable stock of legal terms and 
phrases. The ability to use a Latin phrase correctly and pronounce it with 
authority and consistency belongs to the equipment of a well-rounded jurist. 
Those who actually study Latin today, however, will in all probability learn 
a pronunciation (either the reformed philological or the Italianate) at vari
ance with the Anglo-Latin system which prevails in legal and medical 
spheres. Injection of the cnewer' school pronunciations actually serves to 
increase confusion and uncertainty: Where masculine plural alumni and 
feminine plural alumnae were once differentiated in speech as / �lamnay / 
and /�lamniy/ respectively, one widespread variant of the philological pro
nunciation actually reverses the opposition with masculine / �lamniy / and 
feminine / �lamnay /. The status of amicus curiae, traditionally pronounced 
/ �mayk�s kyuriyiy /, now has variants I �miyk�s kuriyay I (adapted philologi
cal), lamiykus kuriyeyl (Italianate), and numerous hybrids. A parliamenta
rian of the old school, perhaps even well versed in Latin, adjourns a meeting 
sine die / sayniy dayiy I only to have a junior colleague suggest that the 
ccorrect' pronunciation is / siyney diyey I. 
Strictly speaking, of course, any attempt at ccorrect' pronunciations of 
foreign terms can at best be only weak approximations. The linguistic 
contortions of a purist attempting to weave foreign sounds and intonations 
into the texture of an English sentence usually strike us as pedantic or 
affected. Although Julius Caesar may have pronounced his name something 
like Iyuwliyus kaysar/ and later Romans may have called him Icheyzar/, 
few speakers of English have place for anything other than the Anglo-Latin 
I juwl(i)y�s siyz�r / . 
Three major systems of Latin pronunciation, outlined below, coexist in 
the English-speaking world. Each has its proper cultural and scholarly 
context. The reformed (or new, or philological, or Roman) pronunciation 
represents a modification to English speech habits of the reconstructed 
sounds of Latin as it must have been in the classical period. Philologists, 
vii

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PRONUNCIATION OF LATIN 
classical historians, and most teachers of Latin employ this pronunciation in 
their professional activity. Anglo-Latin (or English) pronunciation, the form 
most commonly encountered in law, medicine, the natural sciences, and in 
general usage, reflects the centuries of sound change that English has 
undergone. * Although it may not possess the authenticity of linguistic 
reconstruction, the Anglo-Latin system enjoys the authority of a persevering 
and distinct cultural tradition. The Italianate pronunciation derives from 
the pronunciation of Later Latin and is viewed as the standard in Roman 
Catholicism (including canon law), in music, in art history, and in medieval 
studies. Thus, a school master may leave the classroom, where he has just 
taught his pupils Latin imperatives including wenite tcome' /weniyte/ (re
formed philological), go to chapel to rehearse with the choir Psalm 95 in 
Anglican morning prayer, the Venite /vanaytiy/ (Anglo-Latin), and then 
actually sing the text in a Latin setting as /veyniytey eksulteymus .. .1 
(Italianate). Each pronunciation is correct in its own context. 
• There exist, in addition, various secondary pronunciations, 
such as the continental one often used by scholars of Middle 
English literature and history. 
viii

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TRANSCRIPTION SYSTEM 
The transcription system employed for these listings is derived from one 
of the traditional phonemic analyses of American English (Trager-Smith). 
The values of the symbols vary with context, i.e., their specific pronuncia
tions depend on the nature of the surrounding sounds. The pronunciation 
habits of a normal speaker of English will, however, in practically all cases 
supply the accustomed variants for that speaker's usage if the elements 
presented in the key are substituted in accordance with the sample indica
tions. This system enables the speakers of a range of dialects to use one and 
the same transcription and yet produce a pronunciation natural to their 
speech. For this reason, in addition to the considerations given above 
concerning the treatment of foreign terms in English, sounds foreign to 
English have been represented by the customary English substitutes. Thus, 
for example, the voiceless velar fricative of German Bach would be rendered 
with a simple stop Ikl and French front rounded eu with Iyuw/. Readers 
who wish to affect the foreign sounds will find guidance in their own 
linguistic experience or in the appropirate grammars and dictionaries. 
Similarly, readers who prefer pronunciations closer to the spelling than 
those presented here should feel free to substitute their preferences, e.g., 
restoration of ufull" vowels for unaccented I �I or evert to pronouncing the t 
in often. Finally, readers who already feel secure (or even superior) in their 
own renderings of words and phrases should retain these. The editors will 
always appreciate information on local variants and will welcome sugges
tions for improving the transcriptions. 
The rubrics (sets of examples) under any given major symbol should 
always be applied in order. The earlier, more specific contexts take prefer
ence over the later, telsewhere' variant. 
The special symbols 
1001 (ash) IC51 (edh) I�I (schwa) IIJI (angma) (81 (theta) 
appear respectively after 
lal Idl lei Inl It I 
The reader will, of course, be aware that the transcription symbols do 
not necessarily have the same alphabetic values as in English. Rather, the 
symbols must be viewed as arbitrary signs, although in many cases their 
forms will aid the user in remembering and associating the key sounds and 
symbols. 
xi

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� 
[!] 
GUIDE TO PRONUNCIATION SYMBOLS 
layl as in the bold portions of aye, eye, I layl lie Ilayl 
buy, by, bye /bay I high Ihayl aisle, isle, I'll layll 
idea I aydiYell 
lawl as in out lawtl how Ihawl 
I ar I as in bark Ibarkl car Ikar I 
lal elsewhere as in father Ifa�elr/. In many dialects identical with 101. 
18!1 as in cat Ikztl 
Ibl as in bill IbOI 
Ichl as in chill IchOI church Ich�rchl nature Ineychelrl 
question Ikwes(h)chelnl 
Idl as in dill IdOl odor lowdelr/. 
In many dialects better, bedder may both appear as /bedelr I. 
I�I as in this I�isl smooth Ismuw�1 thou I�awl 
not to be confused with 181 
leyl as in they I�eyl make Imeykl sail, sale Iseyll neigh, nay Ineyl 
lehrl as in error lehrelrl merry Imehriy/. In dialects where lehrl 
is not distinct from lerl the diacritic Ihl may be ignored. 
lerl as in there, their l{jerl air, e'er lerl 
lei elsewhere as in dell Idell bet /betl 
lelhrl as in current Ik�hrantl. In dialects where lelhrl is not distinct 
from lelr I the diacritic Ihl may be ignored. 
lelrl as in murder Im�rdelrl were Iw�rl mother Ima&rl 
world Iw�rldl whirr I(h)w�rl 
I�I 1-;1 (with either primary or secondary stress) as in but, butt Ib�tl 
blood /bladl above I elb�v I 
lell elsewhere (unstressed) as in sofa Isowfell another leln;&rl 
If I as in fill, Phil If 01 rough ltifl 
xii

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[!] 
� 
OJ 
[] 
[0 
� 
� 
GUIDE TO PRONUNCIATION SYMBOLS 
Igl always 'hard' as in gall Igoll Gaul /gol lag II�gl 
Ihl as silent diacritic in combinations lehr, �hr, ihr, ohrl and Ich, sh, zhl 
otherwise as in hill Ihnl mousehole Imaws-howll 
liy I as in machine Im�shiynl be, bee, Bea Ibiy I each liychl 
lihrl as in irrigate lihr�geytl spirit Ispihr�t/. In dialects where 
lihr I is not distinct from lir I the diacritic Ihl may be ignored. 
lirl as in pier, peer Ipirl hear, here Ihirl 
Iii elsewhere as in sit Isitl pretty Ipri tiy I 
Ijl as in Jill Ijill general Ijen(�)r�ll edge lejl soldier Isowlj�rl 
carriage Ik�r�j I 
Ikl as in kill Ikill cool Ikuwll 
III as in Lill Ilill 
Iml as in mill Imill 
Inl as in nil Inill 
II)I as in thing 1811)1 singer Isi�rl finger Ifil)g�rl 
loyl as in boy Iboyl noise Inoyzl 
lowl as in know Inowl sew, so, sow (seed) Isowl 
I ohr I as in foreign Ifohr�nl borrow Ibohrow I. In dialects where 
I ohr I is not distinct from lor I the diacritic Ihl may be ignored. 
lor I as in bore, boar Ibor I course, coarse Ikorsl 
101 elsewhere as in rot, wrought Irotl wall Iwoll ought, aught loti 
law 1 101. Some dialects merge 101 and lal while others treat diph
thongal spellings as 101 but others as la/. 
� Ipl as in pill Ipnl lip llipl 
o 
Ir I as in rill Irn/. See also the coloring function of Ir I in diphthongs 
lar, e(h)r, �(h)r, i(h)r, o(h)r, uri. 
xiii

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o 
[!] 
[[) 
[!J 
GUIDE TO PRONUNCIATION SYMBOLS 
Ishl as in shill IshOI sugar Ishug;rl issue lishyuwl 
lsI as in sill IsO I city Isidiyl 
It I as in till ItOI hit Ihitl 
181 as in thin 18inl thought 186tl not to be confused with / d/: 
ether liy8;r / 
either /iy&rl 
luw I as in too, two Itiiw / through, threw /8riiw / crude Ikriiwdl 
lurl as in jury /jiiriyl poor /piirl 
luI elsewhere as in put Iputl good Igudl could Ikudl 
Iw I as in will Iwfll weather /we&r /. See also the function of Iw / 
in diphthongs law, ow, uw/. 
Iy I as in yes Iyesl union lyiiwny;n/. See also the function of Iy I 
in diphthongs lay, ey, iy, oy/. 
Izhl as in Doctor Zhivago /dakt�r zh;vagowl pleasure Iplezh;rl 
garage Ig;razhl (in some dialects IOaj /) 
Izl as in zoo Iziiwl rose, rows (lines) Irawz/ Xenophon Izen�fonl 
� primary (strong) stress [] secondary (weaker) stress 
telegraphic Itel;gr�f;kl 
telegram Itel;gr�ml 
( ) 'may include or exclude'; optional elements 
e.g. new In(y)uw I pronounced either Inyiiw I or Iniiw I 
ratio Ireysh(iy)ow / pronounced Ireyshiyow / or Ireyshow / 
c::J 'and the rest that precedes/follows'; replaces identical parts of variant 
pronunciations 
e.g. alumni 1;);mnay/Oniyl = I;);mnayl or I�l;mniyl 
inter alios lint�r eyl(i)yows/O�)O I 
= linbr eyl(i)yowsl or lint;r �l(i)yowsl 
habeas corpus Iheybiy;s ka�s/heybiyz ° I 
= Iheybiy;s karp;sl or Iheybiyz karp;s/. 
xiv

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A 
A. The first letter in the English and most other alpha
bets derived from the Roman or Latin alphabet, which 
was one of several ancient Italian alphabets derived 
from the Greek, which was an adaptation of the Phoeni
cian. The first letter in the Phoenician alphabet was 
called aleph, meaning "ox", which is also the meaning of 
the first letter in the Greek alphabet, alpha. Alpha and 
the second letter of the Greek alphabet, beta, were 
combined to form "alphabet," which is largely the same 
in different languages. 
A in Latin and law Latin. Anglo-American law 
abounds in Latin and French words and phrases, and 
the use of A in these languages is important to the 
English-speaking lawyer. In Latin "A" was used both 
as an abbreviation and as a symboL For example "A" 
was an abbreviation for "Aulus," a praenomen, or the 
first of the usual three names of a person by which he 
was distinguished from others of the same family; also 
for "ante" in "a.d., " ante diem (before the day), and for 
"anno" (year) in a.u.c., an no urbis conditae (the year of 
the building of the city) and in an no ab urbe condita 
(from the year of the building of the city). As a preposi
tion, the form was either A, AB or ABS. A was used 
before consonants; ab was usually used before vowels, 
but sometimes before consonants, whereas abs was used 
before "c" or "t." The meaning was "from," "away 
from," "on the side of," "at," "after," "since," "by," "by 
means of," "out of," "with reference to," "in regard of," 
"near by," and "along." For example, A fronte in front; 
ab tergo, from behind; a puertitia, from youth; ab sole 
orbe, from or at sunrise; ab intestato, without a will, 
intestate. In law Latin, "a" means "by," "with," 
"from," "in," "of," and "on," and AB means "by," 
"from," and "in". 
A in French and law French. In French A is a preposi
tion, the meaning of which largely depends on context. 
It is usually translated as "into," "at," "to," "in," "by," 
"of," "with," "on," "from," "for," "under," "till," "with
in," "between," etc. It also changes into au and aux 
when combined with "the." A is also the third person, 
singular number, present tense, indicative mood of the 
verb avoir, (to have): II a (he has). In law French "a" is 
used as a preposition meaning "at," "for," "in," "of," 
"on," "to," and "with." 
The word "a" has varying meanings and uses. "A" 
means "one" or "any," but less emphatically than ei
ther. It may mean one where only one is intended, or it 
may mean any one of a great number. It is placed 
before nouns of the singular number, denoting an indi
vidual object or quality individualized. 
1 
The article "a" is not necessarily a singular term; it is 
often used in the sense of "any" and is then applied to 
more than one individual object. Lewis v. Spies, 43 
A.D.2d 714, 350 N.Y.S.2d 14, 17. So under a statute 
providing that the issuance of "a" certificate to one 
carrier should not bar a certificate to another over the 
same route, a certificate could be granted to more than 
two carriers over the same route. State ex reL Crown 
Coach Co. v. Public Service Commission, 238 Mo.App. 
287, 179 S.W.2d 123, 127. Also, article "a" in statute 
making it a crime for a person to have in his possession 
a completed check with intent to defraud includes the 
plural. People v. Carter, 75 C.A.3d 865, 142 CaLRptr. 
517, 520. But the meaning depends on context. For 
example, in Workers' Compensation Act, on, or in or 
about "a" railway, factory, etc., was held not to mean 
any railway, factory, etc., but the railway, factory, etc., 
of the employer. Where the law required the delivery of 
a copy of a notice to husband and a copy to wife, the 
sheriffs return. that he had delivered "a copy" to hus
band and wife was insufficient. State v. Davis, Tex.Civ. 
App., 139 S.W.2d 638, 640. 
AAA. Agricultural Adjustment Act; American Account
ing Association; American Arbitration Association. 
A.A.C. Anno ante Chris tum, the year before Christ. 
A.A.C.N. Anno ante Chris tum natum, the year before 
the birth of Christ. 
AALS. Association of American Law Schools. 
A aver et tener ley eyv�r et ten�r/. L. Fr. (L. Lat. 
habendum et tenendum.) To have and to hold. A aver 
et tener a luy et a ses heires, a touts jours,-to have and 
to hold to him and his heirs forever. 
Ab. The eleventh month of the Jewish civil year, and 
the fifth of the sacred year. It answers to the moon that 
begins in July, and consists of thirty days. On the 24th 
is observed a feast in memory of the abolishment of the 
Sadducean law, which required sons and daughters to be 
equal heirs and heiresses of their parents' estates. 
Ab, at the beginning of English-Saxon names of 
places, is generally a contraction of abbot or abbey; 
whence it is inferred that those places once had an 
abbey there, or belonged to one elsewhere, as Abingdon 
in Berkshire. 
A.B. Able-bodied seaman. For the requirements of able 
seaman, see 46 U .S.C.A. § 7306 et seq. Also artium 
baccalaureus, bachelor of arts. In England and U.S., 
generally written B. A. See Able-bodied.

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A.B.A. 
A.B.A. American Bar Association. 
Ab; Abr. Abridgment. 
Ab abusu ad usum non valet consequentia / reb 
�byuwz(y)uw red yUwz�m non vrebt kon
s�kwensh(iy)�/ . A conclusion as to the use of a thing 
from its abuse is invalid. 
Abacist or abacista / reb�sist�/ . A caster of accounts, an 
arithmetician. 
Abaction / �breksh�n/. A carrying away by violence. 
Ab actis / reb rekt�s/. Lat. An officer having charge of 
acta, public records, registers, journals, or minutes. An 
officer who entered on record the acta or proceedings of 
a court; a clerk of court; a notary or actuary. See 
"Acta diurna': This, and the similarly formed epithets 
a cancellis, a secretis, a libellis, were also anciently the 
titles of a chancellor (cancellarius) in the early history of 
that office. 
Abactor / rebrekt�r / . A stealer and driver away of cattle 
or beasts by herds or in great numbers at once, as 
distinguished from a person who steals a single animal 
or beast. Also called abigeus, q. v. 
Ab agendo / reb eyjendow /. Disabled from acting; un
able to act; incapacitated for business or transactions of 
any kind. 
A.B.A.J. American Bar Association Journal. 
Abalienate / �beyliy�neyt/. To transfer interest or title. 
Abalienatio /�beyliy�neysh(iy)ow/. In Roman law, the 
perfect conveyance or transfer of property from one 
Roman citizen to another. This term gave place to the 
simple alienatio, which is used in the Digest and Insti
tutes, as well as in the feudal law, and from which the 
English "alienation" has been formed. 
Abalienation /rebeyliy�neysh�n/. In the civil law, a 
making over of realty, or chattels to another by due 
course of law. 
Abamita /�brem�t�/. In the civil law, a great-great
grandfather's sister (abavi soror). Called amita maxi
ma. 
Abandon. To desert, surrender, forsake, or cede. To 
relinquish or give up with intent of never again resum
ing one's right or interest. To give up or to cease to use. 
To give up absolutely; to forsake entirely; to renounce 
utterly; to relinquish all connection with or concern in; 
to desert. It includes the intention, and also the exter
nal act by which it is carried into effect. 
Abandoned property. Property over which the owner 
has given up dominion and control with no intention of 
recovering it. See also Abandonment. 
Abandonee. A party to whom a right or property is 
abandoned or relinquished by another. Term is applied 
to the insurers of vessels and cargoes. 
Abandonment. The surrender, relinquishment, dis
claimer, or cession of property or of rights. Voluntary 
relinquishment of all right, title, claim and possession, 
with the intention of not reclaiming it. State v. Bailey, 
2 
97 N.J.Super. 396, 235 A.2d 214, 216. The giving up of a 
thing absolutely, without reference to any particular 
person or purpose, as vacating property with the inten
tion of not returning, so that it may be appropriated by 
the next comer or finder. The voluntary relinquish
ment of possession of thing by owner with intention of 
terminating his ownership, but without vesting it in any 
other person. Dober v. Ukase Inv. Co., 139 Or. 626, 10 
P.2d 356, 357. The relinquishing of all title, possession, 
or claim, or a virtual, intentional throwing away of 
property. 
Term includes both the intention to abandon and the 
external act by which the intention is carried into effect. 
In determining whether one has abandoned his property 
or rights, the intention is the first and paramount object 
of inquiry, for there can be no abandonment without the 
intention to abandon. Roebuck v. Mecosta County Road 
Commission, 59 Mich.App. 128, 229 N.W.2d 343, 345. 
Generally, "abandonment" can arise from a single act or 
from a series of acts. Holly Hill Lumber Co. v. Grooms, 
198 S.C. 118, 16 S.E.2d 816, 821. 
Time is not an essential element of act, although the 
lapse of time may be evidence of an intention to aban
don, and where it is accompanied by acts manifesting 
such an intention, it may be considered in determining 
whether there has been an abandonment. Ullman ex 
reI. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287. 
"Abandonment" differs from surrender in that surren
der requires an agreement, and also from forfeiture, 
in that forfeiture may be against the intention of the 
party alleged to have forfeited. 
See also Desertion; Discharge; Release; Waiver. 
Actions, in general. Failure to prosecute or bring action 
within statutorily prescribed period (see Limitations (Stat
ute of limitations); failure to object to or submit jury 
instructions (Fed.R. Civil P. 51); failure to demand jury 
trial (Fed.R. Civil P. 38). 
Adverse possession. To destroy continuity of adverse 
claimant's possession, there must be an intent to relin
quish claim of ownership as well as an act of relinquish
ment of possession and mere temporary absence is not 
sufficient. Bruch v. Benedict, 62 Wyo. 213, 165 P.2d 
561. 
Assignment of error. Failure to object at trial. Meyer 
v. Hendrix, 311 Ill.App. 605, 37 N.E.2d 445, 446. Error 
not presented in brief. Roubay v. United States, C.C.A. 
Cal., 115 F.2d 49, 50. Error not supported by point, 
argument or authority. Cone v. Ariss, 13 Wash.2d 650, 
126 P.2d 591, 593. See Fed.R.Civil Proc. 46 (Exceptions 
unnecessary). 
Children. Desertion or willful forsaking. Foregoing 
parental duties. Wright v. Fitzgibbons, 198 Miss. 471, 
21 So.2d 709, 710. See also Desertion. 
Contracts. To constitute "abandonment" by conduct, 
action relied on must be positive, decisive, unequivocal, 
and inconsistent with the existence of the contract. 
Abandonment is a matter of intent, Lohn v. Fletcher Oil 
Co., 38 Cal.App.2d 26, 100 P.2d 505, 507, and implies not

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3
only nonperformance, but an intent not to perform
which may be inferred from acts which necessarily point
to actual abandonment.
Copyright. "Abandonment" of a copyright turns on
state of mind of copyright proprietor and occurs whenev
er he engages in some overt action which manifests his
purpose to surrender his rights in the work and to allow
the public to enjoy it. Rexnord, Inc. v. Modern Han
dling Systems, Inc., D.C.Del., 379 F.Supp. 1190, 1199.
Criminal acts. "Abandonment" can relieve one of crim
inal responsibility where criminal enterprise is cut short
by change of heart, desertion of criminal purpose,
change of behavior, and rising revulsion for harm in
tended, and must occur before criminal act charged is in
the process of consummation or has become so inevitable
that it cannot reasonably be delayed. Pyle v. State,
Ind., 476 N.E.2d 124, 126. See Model Penal Code
§ 5.01(4) (renunciation of criminal purpose).
Easements. To establish "abandonment" of an ease
ment created by deed, there must be some conduct on
part of owner of servient estate adverse to and inconsist
ent with existence of easement and continuing for statu
tory period, or nonuser must be accompanied by un
equivocal and decisive acts clearly indicating an intent
on part of owner of easement to abandon use of it.
Permanent cessation of use or enjoyment with no inten
tion to resume or reclaim. Intention and completed act
are both essential. A mere temporary or occasional
obstruction or use of an easement by the servient owner
is not an "abandonment". Gerber v. Appel, Mo.App.,
164 S.W�d 225, 228.
_ Ground for divorce. "Abandonment" as cause for di-. vorce must be willful and intentional without intention
of returning, and without consent of spouse abandoned.
This ground is commonly termed "desertion" in state
divorce statutes. See also Qesertion.
Inventions. The giving up of rights by inventor, as
where he surrenders his idea or discovery or relinquish
es the intention of perfecting his invention, and so
throws it open to the public, or where he negligently
postpones the assertion of his claims or fails to apply for
a patent, and allows the public to use his invention.
Electric Storage Battery Co. v. Shimacizu, Pa., 307 U.S.
5, 613, 616, 59 S.Ct. 675, 681, 83 L.Ed. 1071.
Leases in general. To constitute an "abandonment" of
leased premises, there must be an absolute relinquish
ment of premises by tenant consisting of act and inten
tion.
Mineral leases. "Abandonment" consists of an actual
act of relinquishment, accompanied with the intent and
purpose permanently to give up a claim and right of
property. A distinction exists between "abandonment"
and "surrender" which is the relinquishment of a thing
or a property right thereto to another, which is not an
essential element of abandonment. Distinction also ex
ists between elements of "abandonment" and those of
estoppel. Neither formal surrender of oil and gas lease
nor release is necessary to effectuate "abandonment; for
ABANDONMENT
example, failing to start work under the lease for more
than 40 years, Chapman v. Continental Oil Co., 149 Kan.
822, 89 P.2d 833, 834; breach of implied obligation to
proceed with search and development of land with rea
sonable diligence, Wood v. Arkansas Fuel Oil Co., D.C.
Ark., 40 F.Supp. 42, 45; no drilling on leased land for
more than two years, and failure to pay rentals, Rehart
v. Klossner, 48 Cal.App.2d 40, 119 P.2d 145, 147; draw
ing of casing from well with no intention of replacing it,
have all been held to constitute "abandonment". But
there must be an intention by lessee to relinquish leased
premises, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d
945, 950, 951; or an intention not to drill, Carter Oil Co.
v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And
ceasing of operations is not alone sufficient. Fisher v.
Dixon, 188 Oklo 7, 105 P.2d 776, 777.
Office. Abandonment of a public office is a species of
resignation, but differs from resignation in that resigna
tion is a formal relinquishment, while abandonment is a
voluntary relinquishment through nonuser. It is not
wholly a matter of intention, but may result from the
complete abandonment of duties of such a continuance
that the law will infer a relinquishment. It must be
total, and under such circumstances as clearly to indi
cate an absolute relinquishment; and whether an officer
has abandoned an office depends on his overt acts rather
than his declared intention. It implies nonuser, but
nonuser does not, of itself constitute abandonment. The
failure to perform the duties pertaining to the office
must be with actual or imputed intention on the part of
the officer to abandon and relinquish the office. The
intention may be inferred from the acts and conduct of
the party, and is a question of fact. Abandonment may
result from an acquiescence by the officer in his wrong
ful removal or discharge, but, as in other cases of aban
donment, the question of intention is involved. McCall
v. Cull, 51 Ariz. 237, 75 P.2d 696, 698.
Patents. There may be an abandonment of a patent,
where the inventor dedicates it to the public use; and
this may be shown by his failure to sue infringers, sell
licenses, or otherwise make efforts to realize a personal
advantage from his patent. Sandlin v. Johnson, C.C.A.
Mo., 141 F.2d 660. A person may not be deprived of a
patent as a result of the earlier work of another if that
work has been abandoned, supplemented, or concealed.
35 U.S.C.A. § 102(g).
Property. "Abandoned property" in a legal sense is that
to which owner has relinquished all right, title, claim,
and possession, but without vesting it in any other
person, and with no intention of not reclaiming it or
resuming its ownership, possession or enjoyment in the
future. Com. v. Carter, 236 Pa.Super. 376, 344 A.2d 899,
901. There must be concurrence of act and intent, that
is, the act of leaving the premises or property vacant, so
that it may be appropriated by the next comer, and the
intention of not returning. Relinquishment of all title,
possession, or claim; a virtual intentional throwing
away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d
699, 702.

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ABANDONMENT 
Rights in general. The relinquishment of a right. It 
implies some act of relinquishment done by the owner 
without regard to any future possession by himself, or 
by any other person, but with an intention to abandon. 
See Waiver. 
Trademarks and trade names. There must be not only 
nonuser, but also an intent to abandon and to give up 
use of trademarks permanently. Neva-Wet Corporation 
of America v. Never Wet Processing Corporation, 277 
N.Y. 163, 13 N.E.2d 755, 761. 
Water rights. As applied to water rights may be defined 
to be an intentional relinquishment of a known right. 
It is not based on a time element, and mere nonuser will 
not establish "abandonment" for any less time, at least, 
than statutory period, controlling element in "abandon
ment" being matter of intent. Hammond v. Johnson, 94 
Utah 20, 66 P.2d 894, 899. To desert or forsake right. 
The intent and an actual relinquishment must concur. 
Concurrence of relinquishment of possession, and intent 
not to resume it for beneficial use. Neither alone is 
sufficient. Osnes Livestock Co. v. Warren, 103 Mont. 
284, 62 P.2d 206, 211. 
Abandun, abandum, or abandonum / :lbrend�m(:lm)/. 
Anything sequestered, proscribed, or abandoned. Aban
don, i. e., in bannum res missa, a thing banned or 
denounced as forfeited or lo�t, whence to abandon, 
desert, or forsake, as lost and gone. 
Ab ante / reb rentiy /. Lat. Before; in advance. Thus, a 
legislature cannot agree ab ante to any modification or 
amendment to a law which a third person may make. 
Ab antecedente / reb renbsiydentiy /. Lat. Beforehand; 
in advance. 
Ab antiquo / reb renbiykwow /. From old times; from 
ancient time; of old; of an ancient date. 3 Bl.Comm. 
95. 
Abarnare / rebarneriy / . Lat. To discover and disclose to 
a magistrate any secret crime. 
Ab assuetis non fit injuria / reb :lswiyt:ls non fit 
injuriY:l/. From things to which one is accustomed (or 
in which there has been long acquiescence) no legal 
injury or wrong arises. If a person neglects to insist on 
his right, he is deemed to have abandoned it. 
Abatable nuisance. A nuisance which is practically 
susceptible of being suppressed, or extinguished, or ren
dered harmless, and whose continued existence is not 
authorized under the law. Fort Worth & Denver City 
Ry. Co. v. Muncy, Tex.Civ.App., 31 S.W.2d 491, 494. 
Abatamentum / :lbeyt:lment:lm/. L. Lat. In old English 
law, an abatement of freehold; an entry upon lands by 
way of interposition between the death of the ancestor 
and the entry of the heir. 
Abatare / reb:lteriy / . To abate. 
Abate. To throw down, to beat down, destroy, quash. 
To do away with or nullify or lessen or diminish. In re 
Stevens' Estate, Cal.App., 150 P.2d 530, 534. To bring 
entirely down or demolish, to put an end to, to do away 
4 
with, to nullify, to make void, Sparks Milling Co. v. 
Powell, 283 Ky. 669, 143 S.W.2d 75, 77. See also Abate
ment; Abatement of action. 
Abatement. A reduction, a decrease, or a diminution. 
The suspension or cessation, in whole or in part, of a 
continuing charge, such as rent. 
Legacies. A proportional diminution or reduction of the 
pecuniary legacies, when the funds or assets out of 
which such legacies are payable are not sufficient to pay 
them in full. Uniform Probate Code, § 3-902. See 
Ademption, infra, as to specific legacies and devises. 
Nuisance. See Nuisance. 
Plea in abatement. See Plea. 
Taxes. Diminution or decrease in the amount of tax 
imposed. Abatement of taxes relieves property of its 
share of the burdens of taxation after the assessment 
has been made and the tax levied. Sheppard v. Hidalgo 
County, 126 Tex. 550, 83 S.W.2d 649, 657. 
Abatement of action. Abatement is an entire over
throw or destruction of the suit so that it is quashed and 
ended. Carver v. State, 217 Tenn. 482, 398 S.W.2d 719. 
See Dismissal; Vacate. 
Pleas in abatement have been abolished by Fed.R. 
Civil P. 7(c); such being replaced by a motion to dismiss 
under Rule 41. In certain states however this plea still 
exists to attack jurisdiction, or service of process, or to 
allege that a prior action between the same parties 
concerning the same subject matter is pending. 
Abator /:lbeyt:lr/. In real property law, a stranger who, 
having no right of entry, contrives to get possession of 
an estate of freehold, to the prejudice of the heir or 
devisee, before the latter can enter, after the ancestor's 
death. In the law of torts, one who abates, prostrates, 
or destroys a nuisance. 
Abatuda / reb:ltyuwd:l/. Anything diminished. Moneta 
abatuda is money clipped or diminished in value. 
Abavia /:lbreviY:l/. Lat. In the civil law, a great-great
grandmother. 
Abavita /:lbrem:lt:l/. A great-great-grandfather's sister. 
This is a misspelling for abamita (q.v.). 
Abavunculus /reb:lv:lIjkY:lI:ls/. Lat. In the civil law, a 
great-great-grandmother's brother (avavioe frater). 
Called avunculus maximus. 
Abavus /reb:lv:ls/. Lat. In the civil law, a great-great
grandfather. 
Abbacinare / reb:ls:lneriy /. To blind by placing a burn
ing basin or red-hot irons before the eyes. A form of 
punishment in the Middle Ages. Also spelled "abaci
nare." The modern Italian is spelled with two b's, and 
means to blind. Abbacination. Blinding by placing 
burning basin or red-hot irons before the eyes. 
Abbacy / reb:lsiy /. The government of a religious house, 
and the revenues thereof, subject to an abbot, as a 
bishopric is to a bishop. The rights and privileges of an 
abbot.

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5 
Abbey. A monastery or nunnery for the use of an 
association of religious persons, having an abbot or 
abbess to preside over them. 
Abbot. A prelate in the 13th century who had had an 
immemorial right to sit in the national assembly. 
Abbot, abbat. The spiritual superior or governor of an 
abbey. Feminine, Abbess. 
Abbreviatio placitorum I abriyviyeysh(iy)ow p1ci�
satoram/. An abstract of ancient judicial records, prior 
to the Year Books. 
Abbreviators labriyviyeytarz/. In ecclesiastical law, of
ficers whose duty it is to assist in drawing up the Pope's 
briefs, and reducing petitions into proper form to be 
converted into papal bulls. 
Abbrochment, or abbroachment labrowchmant/. The 
act of forestalling a market, by buying up at wholesale 
the merchandise intended to be sold there, for the pur
pose of selling it at retail. See Forestalling the market. 
Abbuttais. See Abuttals. 
ABC test. Unemployment compensation law exclusion 
tests providing that employer is not covered if individu
als he employs are free from his control, the services are 
performed outside employer's places of business, and 
employees are customarily engaged in independently 
established trades or professions are known as the "ABC 
tests". Employment Sec. Commission v. Wilson, Alaska, 
461 P.2d 425, 427. See Independent contractor. 
ABC transaction. In mining and oil drilling operations, 
a transfer by which A, the owner, conveys the working 
interest to B, the operator and developer for cash consid
eration, reserving a production payment usually larger 
than the cash consideration paid by B. Later, A sells 
the reserved production payment to C for cash. The tax 
advantages of this type of transaction were eliminated 
by the Tax Reform Act of 1969. 
Abdication lrebdakeyshan/. Renunciation of the privi
leges and prerogatives of an office. The act of a sover
eign in renouncing and relinquishing his government or 
throne, so that either the throne is left entirely vacant, 
or is filled by a successor appointed or elected before
hand. Also, where a magistrate or person in office 
voluntarily renounces or gives it up before the time of 
service has expired. It differs from resignation, in that 
resignation is made by one who has received his office 
from another and restores it into his hands, as an 
inferior into the hands of a superior; abdication is the 
relinquishment of an office which has devolved by act of 
law. It is said to be a renunciation, quitting, and 
relinquishing, so as to have nothing further to do with a 
thing, or the doing of such actions as are inconsistent 
with the holding of it. 
Abditorium I rebdatoriyam/. An abditory or hiding 
place, to hide and preserve goods, plate or money. 
Abduction. The offense of taking away a wife, child, or 
ward, by fraud and persuasion, or open violence. Model 
Penal Code, § 212.4. 
ABETTOR 
To take away surreptitiously by force in kidnapping. 
The unlawful taking or detention of any female for 
purposes of marriage, concubinage, or prostitution. In 
many states this offense is created by statute and in 
most cases applies to females under a given age. By 
statute in some states, abduction includes the withdraw
al of a husband from his wife, as where another woman 
alienates his affection and entices him away and causes 
him to abandon his wife. 
Restraint of victim becomes "abduction" when it is 
done with intent to prevent liberation of victim. Pad
gett v. State, Tex.App. 4 Dist., 683 S.W.2d 453, 457. 
See also Alienation of affections; Kidnapping. 
Abearance laberans/. Behavior; as a recognizance to be 
of good abearance signifies to be of good behavior. 
Ab epistolis I reb iypistalas/. Lat. An officer having 
charge of the correspondence (epistolce) of his superior or 
sovereign; a secretary. 
Aberemurder I rebarm;kdar I. (From Sax. abere, appar
ent, notorious; and mord, murder.) Plain or downright 
murder, as distinguished from the less heinous crime of 
manslaughter, or chance medley. 
Abesse lrebesiy/. Lat. In the civil law, to be absent; to 
be away from a place. Said of a person who was extra 
continentia urbis, (beyond the suburbs of the city.) 
Abet. To encourage, incite, or set another on to commit 
a crime. This word is usually applied to aiding in the 
commission of a crime. To abet another to commit a 
murder is to command, procure, counsel, encourage, 
induce, or assist. Wyatt v. U. S., 388 F.2d 395, 400 (10 
Cir.). To facilitate the commission of a crime, promote 
its accomplishment, or help in advancing or bringing it 
about. State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. 
In relation to charge of aiding and abetting, term 
includes knowledge of the perpetrator's wrongful pur
pose, and encouragement, promotion or counsel of an
other in the commission of the criminal offense. State 
v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049, 
1055. 
A French word combined of two words "a" and "bet
er"-to bait or excite an animal. 
See also Abettor; Accomplice; Aid and abet. 
Abetment. Act of encouraging, inciting or aiding anoth
er. 
Abettator lrebateytar/. L. Lat. In old English law, an 
abettor. See Abettor. 
Abettor labetar/. An instigator, or setter on; one who 
promotes or procures a crime to be committed. Handy 
v. State, 326 A.2d 189. One who commands, advises, 
instigates, or encourages another to commit a crime. A 
person who, being present, incites another to commit a 
crime, and thus becomes a principal. To be an "abet
tor" accused must have instigated or advised commis
sion of crime or been present for purpose of assisting in 
its commission; he must share criminal intent with 
which crime was committed. People v. Francis, 71 C.2d

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ABETTOR 
66, 75 Cal.Rptr. 199, 203, 450 P.2d 591. See also Acces
sory; Accomplice; Aider and abettor. 
Ab extra /reb ekstr;;)/. Lat. Extra, beyond, without. 
From without. 
Abeyance / ;;)bey;;)ns/. Lapse in succession during which 
there is no person in whom title is vested. In the law of 
estates, the condition of a freehold when there is no 
person in being in whom it is vested. In such cases the 
freehold has been said to be in nubibus (in the clouds), in 
pendenti (in suspension); and in gremio legis (in the 
bosom of the law). Where there is a tenant of the 
freehold, the remainder or reversion in fee may exist for 
a time without any particular owner, in which case it is 
said to be in abeyance. A condition of being unde
termined or in state of suspension or inactivity. Sales 
to third parties, of property acquired by county at tax 
sale, being held in "abeyance", means that certain 
rights or conditions are in expectancy. Willard v. Ward 
County, 72 N.D. 291, 6 N.W.2d 566, 56B. 
Abiaticus, or aviaticus / reviyeyt;;)k;;)s/ . L. Lat. In feu
dal law, a son's son; a grandson in the male line. 
Abide. To accept the consequences of; to rest satisfied 
with; to wait for. With reference to an order, judgment, 
or decree of a court, to perform, to execute. 
Abide by. To adhere to, to obey, to accept the conse
quences of. Detroit Fidelity & Surety Co. v. U. S., 
C.C.A.Ohio, 36 F.2d 682, 683. 
To stand to, acquiesce in, conform to. To accept as 
valid, and to take consequences of; as to abide by a 
decision. Kovach v. Maddux, D.C.Tenn., 238 F.Supp. 
835, 842. 
Abiding conviction. A definite conviction of guilt de
rived from a thorough examination of the whole case. 
Used commonly to instruct juries on the frame of mind 
required for guilt proved beyond a reasonable doubt. 
Hopt v. Utah, 120 U.S. 439, 7 S.Ct. 614, 30 L.Ed. 708. A 
settled or fixed conviction. People v. Castro, 68 Cal. 
App.2d 491, 157 P.2d 25, 30. 
Abigeatores /;;)bij(iy);;)toriyz/. See Abigeus. 
Abigeatus /;;)bijiyeyt;;)s/. Lat. In the civil law, the of
fense of stealing or driving away cattle. See Abigeus. 
Abigei / ;;)bijiyay /. See Abigeus. 
Abigere /;;)bij;;)riy/. Lat. In the civil law, to drive away. 
Applied to those who drove away animals with the 
intention of stealing them. Applied, also, formerly to 
the similar offense of cattle stealing on the borders 
between England and Scotland. See Abigeus. 
To drive out; to expel by force; to produce abortion. 
Abigeus / ;;)bijiy;;)s/. Lat. (PI., abigei, or more rarely 
abigeatores.) In the civil law, a stealer of cattle; one 
who drove or drew away (subtraxit) cattle from their 
pastures, as horses or oxen from the herds, and made 
booty of them, and who followed this as a business or 
trade. The term was applied also to those who drove 
away the smaller animals, as swine, sheep, and goats. 
In the latter case, it depended on the number taken, 
6 
whether the offender was fur (a common thief) or abi
geus. But the taking of a single horse or ox seems to 
have constituted the crime of abigeatus. And those who 
frequently did this were clearly abigei, though they took 
but an animal or two at a time. 4 Bl.Comm. 239. 
Ability. Capacity to perform an act or service; e. g. to 
support spouse and family. Financial ability is usually 
construed as referring to pecuniary ability. See also 
Able to earn; Capacity; Incapacity. 
Ab inconvenienti /reb ink;;)nviyniyentay/. From hard
ship, or inconvenience. An argument founded upon the 
hardship of the case, and the inconvenience or disas
trous consequences to which a different course of reason
ing would lead. 
Ab initio lreb inish(iy)ow/. Lat. From the beginning; 
from the first act; from the inception. An agreement is 
said to be "void ab initio" if it has at no time had any 
legal validity. A party may be said to be a trespasser, 
an estate said to be good, an agreement or deed said to 
be void, or a marriage or act said to be unlawful, ab 
initio. Contrasted in this sense with ex post facto, or 
with postea. 
Ab initio mundi lreb inish(iy)ow m�nday/. Lat. From 
the beginning of the world. Ab initio mundi usque ad 
hodiernum diem, from the beginning of the world to this 
day. 
Ab intestato Intestate. 
Ab intestato lreb intesteytow/. Lat. In the civil law, 
from an intestate; from the intestate; in case of intesta
cy. Hrereditas ab intestato, an inheritance derived from 
an intestate. Successio ab intestato, succession to an 
intestate, or in case of intestacy. This answers to the 
descent or inheritance of real estate at common law. 2 
Bl.Comm. 490, 516. "Heir ab intestato." The phrase 
"ab intestato" is generally used as the opposite or alter
native of ex testamento, (from, by, or under a will.) Vel 
ex testamento, vel ab intestato [hrereditatesl pertinent,
inheritances are derived either from a will or from an 
intestate (one who dies without a will). 
Ab invito lreb invaytow/. Unwillingly. Against one's 
will. By or from an unwilling party. A transfer ab 
invito is a compulsory transfer. See In invitum; Invito. 
Ab irato lreb ayreytow/. Lat. By one who is angry. A 
devise or gift made by a man adversely to the interest of 
his heirs, on account of anger or hatred against them, is 
said to be made ab irato. A suit to set aside such a will 
is called an action ab irato. 
Abishering, or abishersing l;;)bish;;)r(s)ilJ/. Quit of 
amercements. It originally signified a forfeiture or 
amercement, and is more properly called mishering, 
mishersing, or miskering, according to certain writers. 
It has since been termed a liberty of freedom, because, 
wherever this word is used in a grant, the persons to 
whom the grant is made have the forfeitures and 
amercements of all others, and are themselves free from 
the control of any within their fee.

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7 
Abjudicatio lcebjuwd�keysh(iy)ow/. In old English law, 
the depriving of a thing by the judgment of a court; a 
putting out of court; the same as forisjudicatio, forjudg
ment, forjudger. A removal from court. 
Used to indicate an adverse decision in a writ of right: 
Thus, the land is said to be abjudged from one of the 
parties and his heirs. 
Abjuration lrebj�reysh�n/. A renunciation or abandon
ment by or upon oath. The renunciation under oath of 
one's citizenship or some other right or privilege. See 
also Abjure. 
Abjuration of the realm I rebj�reysh�n �v i5� relm/. In 
ancient English law, a renunciation of one's country, a 
species of self-imposed banishment, under an oath never 
to return to the kingdom unless by permission. 
Abjure. To renounce, or abandon, by or upon oath. See 
Abjuration. 
Able. See Ability. 
Able-bodied. As used in a statute relating to service in 
the militia, this term does not imply an absolute free
dom from all physical ailment. It imports an absence of 
those palpable and visible defects which evidently inca
pacitate the person from performing the ordinary duties 
of a soldier. See also Able seaman. 
Ablegati I rebl�geytay I. Papal ambassadors of the sec
ond rank, who are sent to a country where there is not a 
nuncio, with a less extensive commission than that of a 
nuncio. This title is equivalent to envoy. 
Able seaman. A grade of merchant seamen. See 46 
U.S.C.A. § 7306 et seq. 
Able to earn. Ability to obtain and hold employment 
means that the person referred to is either able or 
unable to perform the usual duties of whatever employ
ment may be under consideration, in the manner that 
such duties are customarily performed by the average 
person engaged in such employment. Kinyon v. Ki
nyon, 230 Mo.App. 623, 71 S.W.2d 78, 82. See also 
Disabil ity; Gainful employment or occupation. 
Able to purchase. "Ability" in sales contracts, depend
ent on ability to purchase, usually means financial abili
ty. Anderson v. Craig, 111 Mont. 182, 108 P.2d 205, 206. 
Purchaser must have financial ability and legal capacity 
to acquire land. Campbell v. Hood, Tex.Com.App., 35 
S.W.2d 93, 95. Purchaser is able to purchase, as re
spects broker's right to commission, if he is financially 
able to command the necessary funds to close the deal 
within the time required. Hersh v. Garau, 218 Cal. 460, 
23 P.2d 1022. See Financially able. 
Ablocatio lreblowkeysh(iy)ow/. A letting out to hire, or 
leasing for money. Sometimes used in the English form 
"ablocation. " 
Abmatertera lrebm�t;)rt�r�/. Lat. In the civil law, a 
great-great-grandmother's sister (abavire soror). Called 
matertera maxima. 
Abnepos lrebnepo(w)sl. Lat. A great-great-grandson. 
The grandson of a grandson or granddaughter. 
ABOUT 
Abneptis I rebnept�sl . Lat. A great-great-granddaugh
ter. The granddaughter of a grandson or granddaugh
ter. 
Abode. One's home; habitation; place of dwelling; or 
residence. Ordinarily means "domicile." Living place 
impermanent in character. Fowler v. Fowler, 156 Fla. 
316, 22 So.2d 817, 8i.8. The place where a person 
dwells. In re Erickson, 18 N.J.Misc. 5, 10 A.2d 142, 146. 
Residence of a legal voter. Pope v. Board of Election 
Com'rs, 370 Ill. 196, 18 N.E.2d 214, 216. Fixed place of 
residence for the time being. Augustus Co., for Use of 
Bourgeois v. Manzella, 19 N.J.Misc. 29, 17 A.2d 68, 70. 
For service of process, one's fixed place of residence for 
the time being; his "usual place of abode." Fed.R. Civil 
P. 4. Kurilla v. Roth, 132 N.J.L. 213, 38 A.2d 862, 864. 
See Domicile; Residence. 
General abode. See Residence. 
Abogado lavowgMow/. Sp. An advocate. See Bozero. 
Ab oUm lreb owbm/. Of old. 
Abolish. To do away with wholly; to annul; to repeal; 
to rescind; to abrogate; to dispense with. Put an end 
to. Stretch v. Murphy, 166 Or. 439, 112 P.2d 1018, 1021. 
Imports absolute destruction having its root in the Latin 
word "abolere," meaning to destroy utterly. Applies 
particularly to things of a permanent nature, such as 
institutions, usages, customs, as the abolition of slavery. 
Abolishment. See Abolish. 
Abolition. The destruction, annihilation, abrogation, or 
extinguishment of anything. See Abolish. 
In the Civil, French and German law, abolition is used 
nearly synonymously with pardon, remission, grace. 
A bon droit ley bon droyt/. With good reason; justly; 
rightfully. 
Aboriginal title lreb�rij�n�l tayt�l/. Such title provides 
original natives of United States exclusive right to occu
py lands and waters used by them and their ancestors 
before United States asserted sovereignty over such ar
eas. Yankton Sioux Tribe of Indians v. State of S.D., 
C.A.S.D., 796 F.2d 241, 243. 
Abortee I �bortiy I. The woman upon whom an abortion 
is performed. 
Abortifacient I �bort�feysh(iy)�nt/. Drug or medicine 
capable of, or used for, producing abortion. 
Abortion. The spontaneous or artificially induced ex
pulsion of an embryo or fetus. As used in legal context, 
usually refers to induced abortion. For the law relating 
to abortion see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 
35 L.Ed.2d 147; Webster v. Reproductive Health Servic
es, 109 S.Ct. 3040, 106 L.Ed.2d 410. See also Viability; 
Viable child. 
Abortionist. One who performs abortions. 
Abortus I �bort�sl . Lat. An aborted fetus. 
About. Near in time, quantity, number, quality, or 
degree. Substantially, approximately, almost, or nearly. 
Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826, 829.

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ABOUT 
When used with reference to time, the term is of 
flexible significance, varying with the circumstances and 
the connection in which it is employed. But its use does 
not necessarily render time immaterial, nor make a 
contract one terminable at will. In a charter party, 
"about to sail" means just ready to sail. With relation 
to quantity, the term suggests only an estimate of proba
ble amount. Its import is that the actual quantity is a 
near approximation to that mentioned, and it has the 
effect of providing against accidental variations. Nor
rington v. Wright, 115 U.S. 188, 6 S.Ct. 12, 29 L.Ed. 366. 
It may be given practically the same effect as the phrase 
more or less. Synonymous with "on" or "upon," as in 
offense of carrying concealed weapons. Near by, close 
at hand, convenient of access. Brown v. U. S., 30 F.2d 
474, 475, 58 App.D.C. 311. As to number, it merely 
implies an estimate of a particular lot or class and not a 
warranty. In connection with distance or locality, the 
term is of relative significance, varying with the circum
stances. 
Aboutissement labuwtismon/. Fr. An abuttal or abut
ment. 
Above. Higher; superior. As, court above; plaintiff or 
defendant above. Above all incumbrances means in 
excess thereof. Principal, as distinguished from what is 
auxiliary or instrumental. 
Abpatruus I rebpcHruw�sl . Lat. A great-great-uncle; 
or, a great-great-grandfather's brother (abavi {rater}. It 
sometimes means uncle, and sometimes great-uncle. 
Abridge. To reduce or contract; to diminish or curtail. 
Usually spoken of written language. See Abridgment. 
Copyright law. To epitomize; to reduce; to contract. It 
implies preserving the substance, the essence, of a work, 
in language suited to such a purpose. In making ex
tracts there is no condensation of the author's language, 
and hence no abridgment. To abridge requires the 
exercise of the mind; it is not copying. Between a 
compilation and an abridgment there is a clear distinc
tion. A compilation consists of selected extracts from 
different authors; an abridgment is a condensation of 
the views of one author. 
Abridgment. Condensation; contraction. An epitome 
or compendium of another and larger work, wherein the 
principal ideas of the larger work are summarily con
tained. Abridgments of the law are brief digests of the 
law, arranged alphabetically. In this context, the term 
"digest" (q.v.) has generally supplanted that of "abridg
ment." See also Abstract; Headnote; Syllabus. 
As used in First Amendment (U .S.Const.) means nei
ther more nor less than what it ordinarily means; 
abridgement occurs when legislative act either suppress
es or substantially interferes with free speech. Keene v. 
Meese, D.C.Cal., 619 F.Supp. 1111, 1123. 
Abridgment of damages. The right of the court to 
reduce the damages in certain cases. See Remittitur. 
Abroad. In English chancery law, beyond the seas. 
8 
Abrogate lrebr�geyt/. To annul, cancel, revoke, repeal, 
or destroy. To annul or repeal an order or rule issued 
by a subordinate authority; to repeal a former law by 
legislative act, or by usage. 
Abrogation lrebr�geysh�n/. The destruction or annul
ling of a former law, by an act of the legislative power, 
by constitutional authority, or by usage. It stands op
posed to rogation ; and is distinguished from derogation, 
which implies the taking away only some part of a law; 
from subrogation, which denotes the substitution of a 
clause; from dispensation, which only sets it aside in a 
particular instance; and from antiquation, which is the 
refusing to pass a law. Implied abrogation takes place 
when the new law contains provisions which are posi
tively contrary to former laws, without expressly abro
gating such laws; and also when the order of things for 
which the law has been made no longer exists. Ex parte 
Lum Poy, D.C.Wash., 23 F.2d 690. 
For "Express abrogation," see that title. See also 
Annul; Repeal. 
Abscond I�bskond/. To go in a clandestine manner out 
of the jurisdiction of the courts, or to lie concealed, in 
order to avoid their process. To hide, conceal, or absent 
oneself clandestinely, with the intent to avoid legal 
process. Postponing limitations. Keck v. Pickens, 207 
Ark. 757, 182 S.W.2d 873, 875. Fleeing from arresting 
or prosecuting officers of the state. See Fugitive. 
Absconding debtor. One who absconds from his credi
tors to avoid payment of debts. A debtor who has 
intentionally concealed himself from his creditors, or 
withdrawn himself from the reach of their suits, with 
intent to frustrate their just demands. Such act was 
formerly an "Act of bankruptcy" (q.v.). 
Absence. The state of being absent, removed, or away 
from one's domicile, or usual place of residence. Not 
present at particular time; opposite of appearance at a 
specified time. See also Seven years' absence. 
Absent. Being away from; at a distance from; not in 
company with. 
Absente I rebsentiy I. Lat. Being absent; often used in 
the old reports of one of the judges not present at the 
hearing of a cause. 
Absente reo lrebsentiy riyow/. The defendant being 
absent. 
Absentee. One who is absent from his usual place of 
residence or domicile. 
Absentee landlord. Lessor of real property (normally 
the owner) who does not live on the premises. 
Absentee voting. Participation (usually by mail) in 
elections by qualified voters who, because of serious 
illness, military service, or absence because of travel or 
other reasons, are unable to appear at the polls in 
person on election day. See also Proxy with respect to 
absent voting by stockholder. 
Absentem accipere debemus eum qui non est eo loci 
in quo petitur I rebsent�m �ksip�riy d�biym�s iy�m 
kway non est iyow lowsay in kwow pet�t�r I. We ought

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9 
to consider him absent who is not in the place where he 
is demanded (or sought). 
Absentia ejus qui reipublicre causa abest, neque ei 
neque alii damnosa esse debet /rebsensh(iy)� iyj�s 
kwliy riyayp�bl�siy k6z� reoost, neykwiy iyay neykwiy 
reliyay dremn6ws� esiy diyb�t/. The absence of him who 
is away in behalf of the republic (on business of the 
state) ought not to be prejudicial either to him or to 
another. 
Absoile, assoil, assoile / �s6yl/ . To pardon; to deliver 
from excommunication. 
Absoluta sententia expositore non indiget 
Ici:bs�l(y)u� s�ntensh(iy)� ekspoz�t6riy non ind�jet/. 
An absolute sentence or proposition (one that is plain 
without any scruple, or absolute without any saving) 
needs not an expositor. 
Absolute. Complete; perfect; final; without any condi
tion or incumbrance; as an absolute bond (simplex obli
gatio) in distinction from a conditional bond. Uncondi
tional; complete and perfect in itself; without relation 
to or dependence on other things or persons. 
Free from conditions, limitations or qualifications, not 
dependent, or modified or affected by circumstances; 
that is, without any condition or restrictive provisions. 
Button v. Day, 205 Va. 629, 139 S.E.2d 91, 100. 
As to absolute Conveyance; Covenant; Delivery; Di
vorce; Estate; Gift; Guaranty; Interest; Legacy; Nui
sance; Nulli ty; Obligation; Property; Right; Rule; Sale; 
Title, see those titles. 
Absolute deed. A document of conveyance without re
striction or defeasance; generally used in contradistinc
tion to mortgage deed. See Deed. 
Absolute law., The true and proper law of nature, 
immutable in the abstract or in principle, in theory, but 
not in application; for very often the object, the reason, 
situation, and other circumstances, may vary its exer
cise and obligation. See also Natural law. 
Absolute liability. Responsibility without fault or neg
ligence. Rylands v. Fletcher, 3 H.L. 330; Clark-Aiken 
Co. v. Cromwell-Wright Co., Inc. (Mass.), 323 N.E.2d 876. 
See Strict liability. 
Absolutely. Completely; wholly; without qualification; 
without reference or relation to, or dependence upon, 
any other person, thing, or event. Thus, absolutely void 
means utterly void; that which the law or nature of 
things forbids to be enforced at all. Absolutely necessary 
may be used to make the idea of necessity more emphat
ic. Independently or unconditionally, wholly or posi
tively. Collins v. Hartford Accident & Indemnity Co., 
178 Va. 501, 17 S.E.2d 413, 418. 
Absolution. In Canon Law, a juridical act whereby the 
clergy declare that the sins of such as are penitent are 
remitted. Among Protestants it is chiefly used for a 
sentence by which a person who stands excommunicated 
is released or freed from that punishment. 
ABSTENTION DOCTRINE 
In the Civil Law, a sentence whereby a party accused 
is declared innocent of the crime laid to his charge. 
In French Law, the dismissal of an accusation. 
Absolutism /rebs�l(y)uwtiz�m/. In politics, a system of 
government in which public power is vested in some 
person or persons, unchecked and uncontrolled by any 
law, institution, constitutional device, or coordinate 
body. A government which is run by a dictator whose 
power is without restriction and without any checks or 
balances. 
Absolve. To set free, or release, as from obligation, debt, 
or responsibility. State ex reI. St. Louis Car Co. v. 
Hughes, 348 Mo. 125, 152 S.W.2d 193, 194. See also 
Amnesty; Pardon; Release. 
Absorption / �bz6rpsh�n/. Act or process of absorbing. 
Term used in collective bargaining agreements to pro
vide seniority for union members if employer's business 
is merged with another. Humphrey v. Moore, Ky., 375 
U.S. 335, 84 S.Ct. 363, 369. Partial or complete pay
ment of freight charges by seller or freight carrier. 
Costs not passed on to customer. 
Absque /rebskwiy/. Without. Occurs in phrases taken 
from the Latin; . such as those immediately following. 
Absque aliquo inde redendo / rebskwiy rebkwow indiy 
r�dendow /. Lat. Without reserving any rent there
from; without rendering anything therefrom. A term 
used of a free grant by the crown. 
Absque consideratione curire / rebskwiy k�n
sid�reyshiy6wniy kyuriyiy / . In old practice, without the 
consideration of the court; without judgment. 
Absque dubio /rebskwiy d(y)uwbiyow/. Lat. Without 
doubt. 
Absque hoc / rebskwiy h6k/. Without this. These are 
technical words of denial, used in pleading at common 
law by way of special traverse, to introduce the negative 
part of the plea, following the affirmative part or in
ducement. See also Traverse. 
Absque impetitione vasti /rebskwiy imp�tishiy6wniy 
veystay/. Without impeachment of waste; without ac
countability for waste; without liability to suit for 
waste. A clause anciently often inserted in leases (as 
the equivalent English phrase sometimes is) signifying 
that the tenant or lessee shall not be liable to suit 
(impetitio) or challenged, or called to account, for com
mitting waste. See Waste. 
Absque tali causa / rebskwiy teylay k6z�/. Lat. With
out such cause. A form of replication, now obsolete, in 
an action ex delicto which works a general denial of the 
whole matter of the defendant's plea of de injuria. 
Abstention doctrine. Doctrine of "abstention" permits 
a federal court, in the exercise of its discretion, to 
relinquish jurisdiction where necessary to avoid needless 
conflict with the administration by a state of its own 
affairs. Surowitz v. New York City Emp. Retirement 
System, D.C.N.Y., 376 F.Supp. 369, 376; Railroad Com
mission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct.

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ABSTENTION DOCTRINE 
643, 85 L.Ed. 971. See also Equitable abstention doctrine; 
Pullman abstention. 
Abstinence. Refraining completely from indulgence in 
some act such as eating or drinking, unlike temperance 
which presupposes moderate indulgence. Mayfield v. 
Fidelity & Casualty Co. of N. Y., 16 C.A.2d 611, 61 P.2d 
83. 
Abstract hebstrrekt/, n. A lesser quantity containing 
the virtue and force of a greater quantity; an abridg
ment. A transcript is generally defined as a copy, and is 
more comprehensive than an abstract. Summary or 
epitome, or that which comprises or concentrates in 
itself the essential qualities of a larger thing or of 
several things. Robbins Inv. Co. v. Robbins, 49 Cal. 
App.2d 446, 122 P.2d 91, 92. See Abridge; Abridgment; 
Digest; Headnote; Syllabus. 
Abstract I ;)bstrrektl, v. To take or withdraw from; as, 
to abstract the funds of a bank. To remove or separate. 
To summarize or abridge. 
Abstraction. Taking from with intent to injure or de
fraud. "Wrongful abstraction" is unauthorized and il
legal taking or withdrawing of funds, etc., and appropri
ation thereof to taker's benefit. Pacific Coast Adjust
ment Bureau v. Indemnity Ins. Co. of North America, 
115 CaI.App. 583, 2 P.2d 218, 219. 
Abstract of a fine. In old English conveyancing, one of 
the parts of a fine, being an abstract of the writ of 
covenant, and the concord, naming the parties, the par
cels of land, and the agreement. 2 BI.Comm. 351. More 
commonly called the "note" of the fine. See Fine; Con
cord. 
Abstract of record. A complete history in short, abbre
viated form of the case as found in the record, complete 
enough to show the appellate court that the questions 
presented for review have been properly reserved. Syn
opsis or summary of facts, rather than table of contents 
of transcript. Abbreviated accurate and authentic histo
ry of (e.g. trial court) proceedings. Brown v. Reichmann, 
237 Mo.App. 136, 164 S.W.2d 201, 207. 
Abstract of title. A condensed history of the title to 
land, consisting of a synopsis or summary of the materi
al or operative portion of all the conveyances, of whatev
er kind or nature, which in any manner affect said land, 
or any estate or interest therein, together with a state
ment of all liens, charges, or liabilities to which the 
same may be subject, and of which it is in any way 
material for purchasers to be apprised. An epitome of 
the record evidence of title, including maps, plats, and 
other aids. Commissioners' Court of Madison County v. 
Wallace, 118 Tex. 279, 15 S.W.2d 535, 536. An epitome 
of the conveyances, transfers, and other facts relied on 
as evidence of title, together with all such facts appear
ing of record as may impair the title. State ex reI. 
Freeman v. Abstracters Board of Examiners, 99 Mont. 
564, 45 P.2d 668, 670. Memorandum or concise state
ment in orderly form of the substance of documents or 
facts appearing on public records which affect title to 
10 
real property. State ex reI. Doria v. Ferguson, 145 Ohio 
St. 12, 60 N.E.2d 476, 478. See also Torrens title system. 
Abstract question. One which does not rest upon exist
ing facts or rights. Morris Plan Bank of Fort Worth v. 
Ogden, Tex.Civ.App., 144 S.W.2d 998, 1004. Hypotheti
cal question. See also Hypothetical question; Moot. 
Absurdity. Anything which is so irrational, unnatural, 
or inconvenient that it cannot be supposed to have been 
within the intention of men of ordinary intelligence and 
discretion. Obviously and flatly opposed to the manifest 
truth; inconsistent with the plain dictates of common 
sense; logically contradictory; nonsensical; ridiculous. 
Abundans cautela non nocet I ;)b;}nd:mz kotiyl;) non 
nos;)t/. Abundant or extreme caution does no harm. 
This principle is generally applied to the construction of 
instruments in which superfluous words have been in
serted more clearly to express the intention. 
Ab urbe condita lreb ;}rbiy kondit;)/. From the founding 
of the city. See A.U .C. 
Abus de confiance I ;)byuw d;) konfiyons ;)byuws d;) 
k;)nfay;)ns/. Fraudulently misusing or spending to any
body's prejudice goods, cash, bills, documents, or con
tracts handed over for a special object. 
Abuse I ;)byuws/, n. Everything which is contrary to 
good order established by usage. Departure from rea
sonable use; immoderate or improper use. Physical or 
mental maltreatment. Misuse. Deception. 
To wrong in speech, reproach coarsely, disparage, re
vile, and malign. State v. Neubauer, 2 Conn.Cir. 169, 
197 A.2d 93, 96. See Defamation. 
Child abuse. See Child abuse. 
Civil law. The destruction of the substance of a thing in 
using it. See Abuse, v. 
Corporate franchise or entity. The abuse or misuse of its 
franchises by a corporation signifies any positive act in 
violation of the charter and in derogation of public right, 
willfully done or caused to be done. The use of rights or 
franchises as a pretext for wrongs and injuries to the 
public. 
Discretion. "Abuse of discretion" is synonymous with a 
failure to exercise a sound, reasonable, and legal discre
tion. It is a strict legal term indicating that appellate 
court is of opinion that there was commission of an error 
of law by the trial court. It does not imply intentional 
wrong or bad faith, or misconduct, nor any reflection on 
the judge but means the clearly erroneous conclusion 
and judgment-one is that clearly against logic and 
effect of such facts as are presented in support of the 
application or against the reasonable and probable de
ductions to be drawn from the facts disclosed upon the 
hearing; an improvident exercise of discretion; an error 
of law. State v. Draper, 83 Utah 115, 27 P.2d 39; Ex 
parte Jones, 246 Ala. 433, 20 So.2d 859, 862. A discre
tion exercised to an end or purpose not justified by and 
clearly against reasor! and evidence. Unreasonable de
parture from considered precedents and settled judicial 
custom, constituting error of law. Beck v. Wings Field,

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11 
Inc., C.C.A.Pa., 122 F.2d 114, 116, 117. A judgment or 
decision by an administrative agency or judge which has 
no foundation in fact or in law. "Abuse of discretion" 
by trial court is any unreasonable, unconscionable and 
arbitrary action taken without proper consideration of 
facts and law pertaining to matter submitted. Harvey 
v. State, Okl.Cr., 458 P.2d 336, 338. 
Drug abuse. See that title. 
Female child. An injury to the genital organs in an 
attempt at carnal knowledge, falling short of actual 
penetration. Lee v. State, 246 Ala. 69, 18 So.2d 706, 
707. But, according to other authorities, "abuse" is here 
equivalent to ravishment or rape. Any injury to private 
parts of girl constitutes "abuse" within meaning of crim
inal statute proscribing abuse of girl under age of 12 
years in attempt to have carnal knowledge of her; mere 
hurting of private parts of girl, even though they are not 
bruised, cut, lacerated or torn, is sufficient. Ard v. 
State, 57 Ala.App. 250, 327 So.2d 745, 747. See also 
Carnal abuse; Child abuse. 
Police officer. As used in statute prohibiting one from 
obstructing, resisting, or abusing an officer, word "abus
es" means to wrong in speech, reproach coarsely, dispar
age, revile, or malign an officer who is performing his 
duty. State v. Neubauer, 2 Conn.Cir. 169, 197 A.2d 93. 
Power. Use of one who possesses it in a manner con
trary to law. Improper use of power, distinguished from 
usurpation of power which presupposes exercise of pow
er not vested in the offender. Swenson v. Cahoon, 111 
Fla. 788, 152 So. 203, 204. 
Rrocess. The gist of an action for "abuse of process" is 
improper use or perversion of process after it has been 
issued. Publix Drug Co. v. Breyer Ice Cream Co., 347 
Pa. 346, 32 A.2d 413, 415. A malicious abuse of legal 
process occurs where the party employs it for some 
unlawful object, not the purpose which it is intended by 
the law to effect; in other words, a perversion of it. 500 
West 174 St. v. Vasquez, 67 Misc.2d 993, 325 N.Y.S.2d 
256, 258. Thus, where the pm'pose of a prosecution for 
issuance of a check without funds was to collect a debt, 
the prosecution is an abuse of criminal process. Regular 
and legitimate use of process, although with a bad 
intention, is not a malicious "abuse of process." Priest 
v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 143. 
Action for "abuse of process" is distinguished from ac
tion for "malicious prosecution," in that action for abuse 
of process rests upon improper use of regularly issued 
process, while "malicious prosecution" has reference to 
wrong in issuance of process. Lobel v. Trade Bank of 
New York, 132 Misc. 643, 229 N.Y.S. 778, 781. 
Fundamental elements of this tort are an ulterior 
purpose, and a willful act in the use of process not 
proper in the regular conduct of the proceeding. Bar
quis v. Merchants Collection Ass'n of Oakland, Inc., Cal., 
7 C.3d 94, 101 Cal.Rptr. 745, 752, 496 P.2d 817. 
See also Malicious abuse of legal process; Malicious use 
of process. 
ACADEMIC QUESTION 
Abuse /;byUwz/, v. To make excessive or improper use 
of a thing, or to employ it in a manner contrary to the 
natural or legal rules for its use. To make an extrava
gant or excessive use, as to abuse one's authority. 
Abused and neglected chlldren. Those who are suffer
ing serious physical or emotional injury inflicted on 
them, including malnutrition. See Abuse (Female 
child); Child abuse. 
Abusive. Tending to deceive; practicing abuse; prone to 
ill-treat by coarse, insulting words or harmful acts. 
Using ill treatment; injurious, improper, hurtful, offen
sive, reproachful. 
Abut. To reach; to touch. To touch at the end; be 
contiguous; join at a border or boundary; terminate on; 
end at; border on; reach or touch with an end. The 
term "abutting" implies a closer proximity than the 
term "adjacent." No intervening land. 
Abuttals / ;b:}t�lz/ . The buttings or boundings of lands, 
showing to what other lands, highways, or places they 
belong or are abutting. It has been used to express the 
end boundary lines as distinguished from those on the 
sides, as "buttals and sidings". 
Abutter. One whose property abuts, is contiguous, or 
joins at a border or boundary, as where no other land, 
road, or street intervenes. 
Abutting owner. An owner of land which abuts or 
adjoins. The term usually implies that the relative 
parts actually adjoin, but is sometimes loosely used 
without implying more than close proximity. See Abut; 
Adjoining owners. 
A.C. Anno Christi, the year of Christ. 
Ale Abbreviation used by accountants and bookkeepers 
meaning "account." As used in a check, it has been 
held not a direction to the bank to credit the amount of 
the check to the person named, but rather a memoran
dum to identify the transaction in which the check was 
issued. 
Academic. Pertaining to college, university, or prepara
tory school. Sisters of Mercy v. Town of Hooksett, 93 
N.H. 301, 42 A.2d 222, 225. A question or issue which is 
not relevant to case or is premature or hypothetical. In 
re Battell's Will, 286 N.Y. 97, 35 N.E.2d 913. See 
Academic question. 
Academic freedom. Right to teach as one sees fit, but 
not necessarily the right to teach evil. Kay v. Bd. of 
Higher Education of City of N. Y., 173 Misc. 943, 18 
N.Y.S.2d 821, 829. The term encompasses much more 
than teaching-related speech rights of teachers. Cary v. 
Board of Ed. of Adams-Arapahoe School Dist. 28-.1, 
Aurora, Colo., C.A.Colo., 598 F.2d 535. 
Academic question. An issue which does not require 
answer or adjUdication by court because it is not neces
sary to case. A hypothetical or moot question. In re 
Electrolux Corp., 288 N.Y. 440, 43 N.E.2d 480. See 
Hypothetical question.

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ACADEMY 
Academy. An institution of higher learning. An associ
ation of experts in some particular branch of art, litera
ture, law, or science (e.g. American Academy of Matri
monial Lawyers). In its original meaning, an associa
tion formed for mutual improvement, or for the ad
vancement of science or art; in later use, a species of 
educational institution, of a level between the elementa
ry school and the college. V. S. ex reI. Jacovides v. Day, 
C.C.A.N.Y., 32 F.2d 542, 544; Sisters of Mercy v. Town 
of Hooksett, 93 N.H. 301, 42 A.2d 222, 225. In current 
usage, term commonly refers to private high school or 
one of the service academies (e. g. Air Force Academy). 
See School. 
A crelo usque ad centrum ley siylow �skwiy red 
sentr::lm/. From the heavens to the center of the earth. 
Or more fully, Cujus est solum ejus est usque ad crelum 
et ad inferos. The owner of the soil owns to the heavens 
and also to the lowest depths. Or, Cujus est solum est 
usque ad crelum,-the owner of the soil owns to the 
heavens. This doctrine has, however, been abrogated; 
the flight of airplanes and oil and gas regulations have 
qualified the owner's dominion not only in the heavens 
but in the lowest depths. See Air rights. 
A cancellando ley krens::llci!ndow/. From cancelling. 3 
BI.Comm. 46. 
A cancellis ley krensel::ls/. The Chancellor. 
A cancellis curire explodi ley krensel::ls kyuriyiy 
ekspl6wday I. To be expelled from the bar of the court. 
Acapte /::lkrept/. In French feudal law, a species of 
relief; a seignorial right due on every change of a 
tenant. A feudal right which formerly prevailed in 
Languedoc and Guyenne, being attached to that species 
of heritable estates which were granted on the contract 
of emphyteusis. 
A causa de cy ley k6z::l d::l siy I. For this reason. 
Accedas ad curiam I reksiyd::ls red kyuriY::lm/. (Lat. 
That you go to court.) An original writ out of chancery 
directed to the sheriff, for the purpose of removing a 
replevin suit from a Court Baron or a hundred court to 
one of the superior courts of law. It directs the sheriff 
to go to the lower court, and enroll the proceedings and 
send up the record. 3 BI.Comm. 34. 
Accede. To consent; agree. 
Accelerated Cost Recovery System. (ACRS). An ac
counting method whereby the cost of a fixed asset is 
written off for tax purposes over a prescribed period of 
time. Instituted by the Economic Recovery Tax Act of 
1981, and modified by Tax Reform Act of 1986, the 
system places assets into one of various recovery periods 
and prescribes the applicable percentage of cost that can 
be deducted each year. I.R.C. § 168. See also Asset 
Depreciation Range. 
Accelerated depreciation. Various methods of depreci
ation that yield larger deductions in the earlier years of 
the life of an asset than the straight-line method. Ex
amples include the double declining-balance and the 
12 
sum of the years' digits methods of depreciation. See 
Accelerated Cost Recovery System; Depreciation. 
Acceleration. The shortening of the time for the vest
ing in possession of an expectant interest. Hastening of 
the enjoyment of an estate which was otherwise post
poned to a later period. Blackwell v. Virginia Trust Co., 
177 Va. 299, 14 S.E.2d 301, 304. If the life estate fails 
for any reason the remainder is "accelerated". Elliott v. 
Brintlinger, 376 Ill. 147, 33 N.E.2d 199, 201. 
Doctrine of "acceleration", as applied to law of proper
ty, refers to hastening of owner of future interests 
toward status of present possession or enjoyment by 
reason of failure of preceding estate. Aberg v. First 
Nat. Bank in Dallas, Tex.Civ.App., 450 S.W.2d 403, 408. 
A remedy used where there has been an anticipatory 
repudiation or a possibility of a future breach. Rose 
City Transit Co. v. City of Portland, 18 Or.App. 369, 525 
P.2d 1325, 1353. 
Acceleration clause. A provision or clause in a mort
gage, note, bond, deed of trust, or other credit agree
ment, that requires the maker, drawer or other obligor 
. to pay part or all of the balance sooner than the date or 
dates specified for payment upon the occurrence of some 
event or circumstance described in the contract. Such 
clause operates when there has been a default such as 
nonpayment of principal, interest, or failure to pay 
insurance premiums. General Motors Acceptance Corp. 
v. Shuey, 243 Ky. 74, 47 S.W.2d 968. V.C.C. § 1-208 
provides that if the provision for acceleration is "at will" 
such demand must be made only under a "good faith" 
belief that the prospect of payment is impaired. 
Acceleration of remainders. Hastening of owner of 
remainder interest in property toward status of present 
possession or enjoyment by reason of failure preceding 
estate. Aberg v. First Nat'l Bank in Dallas, Tex.Civ. 
App., 450 S.W.2d 403, 408. 
Acceleration premium. Increased rate of pay for in
creased production. 
Accept. To receive with approval or satisfaction; to 
receive with intent to retain. Morris v. State, 102 Ark. 
513, 145 S.W. 213, 214. Admit and agree to; accede to 
or consent to; receive with approval; adopt; agree to. 
Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 482, 483. 
Means something more than to receive, meaning to 
adopt, to agree to carry out provisions, to keep and 
retain. 
In the capacity of drawee of a bill, means to recognize 
the draft, and engage to pay it when due. See Accept
ance. 
Acceptance. The taking and receiving of enything in 
good part, and as it were a tacit agreement to a preced
ing act, which might have been defeated or avoided if 
such acceptance had not been made. The act of a 
person to whom a thing is offered or tendered by anoth
er, whereby he receives the thing with the intention of 
retaining it, such intention being evidenced by a suffi
cient act. Aetna Inv. Corporation v. Chandler Land
scape & Floral Co., 227 Mo.App. 17, 50 S.W.2d 195, 197.

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13 
The exercise of power conferred by an offer by perform
ance of some act. In re Larney's Estate, 148 Misc. 871, 
266 N.Y.S. 564. 
Commercial paper. Acceptance is the drawee's signed 
engagement to honor the draft as presented. It must be 
written on the draft, and may consist of his signature 
alone. It becomes operative when completed by delivery 
or notification. U.C.C. § 3-410. Certification of a check 
is acceptance. U.C.C. § 3-411. A draft may be accepted 
although it has not been signed by the drawer or is 
otherwise incomplete or is overdue or has been dishon
ored. U.C.C. § 3-410(2). See also Acceptor; Banker's 
acceptance; Honor. 
Contracts. Compliance by offeree with terms and condi
tions of offer constitute an "acceptance". Davis & Clan
ton v. C. I. T. Corporation, 190 S.C. 151, 2 S.E.2d 382, 
383. A manifestation of assent to terms thereof made 
by offeree in a manner-invited or required by offer. 
K-Line Builders, Inc. v. First Federal Sa. & Loan Ass'n, 
App., 139 Ariz. 209, 677 P.2d 1317, 1320. The offeree's 
notification or expression to the offeror that he or she 
agrees to be bound by the terms of the offeror's proposal. 
A contract is thereby created. The trend is to allow 
acceptance by any means that will reasonably notify the 
offeror of the acceptance. See also Confirmation; Offer 
and acceptance. 
Insurance. In a contract of insurance, the "acceptance" 
occurs when insurer agrees to accept application and to 
issue policy. Acacia Mut. Life Ass'n v. Berry, 54 Ariz. 
208, 94 P.2d 770, 772. Delay or inaction on the part of 
an insurer cannot constitute an "acceptance". French 
American Banking Corporation v. Fireman's Fund Ins. 
Co., D.C.N.Y., 43 F.Supp. 494, 498. More than mere 
mental resolution or determination on part of insurer to 
accept application is required; such must be communi
cated to applicant. Limbaugh v. Monarch Life Ins. Co., 
Springfield, Mass., Mo.App., 84 S.W.2d 208, 212. Term 
as applied to policy means assent, acquiescence or agree
ment to terms and conditions of policy. Baker v. St. 
Paul Fire & Marine Ins. Co., Mo.App., 427 S.W.2d 281, 
291. 
Sale of goods. U.C.C. § 2-606 provides three ways a 
buyer can accept goods: (1) by signifying to the seller 
that the goods are conforming or that he will accept 
them in spite of their nonconformity, (2) by failing to 
make an effective rejection, and (3) by doing an act 
inconsistent with the seller's ownership. Acceptance of 
a part of any commercial unit is acceptance of that 
entire unit. 
Types of acceptance. 
Conditional. An engagement to pay the draft or accept 
the offer on the happening of a condition. A "condi
tional acceptance" is in effect a statement that the 
offeree is willing to enter into a bargain differing in 
some respects from that proposed in the original offer. 
The conditional acceptance is, therefore, itself a coun
ter offer. 
ACCESS 
Express. An undertaking in direct and express terms 
to perform the terms of the contract, pay the bill, draft, 
etc.; an absolute acceptance. 
Implied. An undertaking to pay the draft inferred 
from acts of the drawee of a character which fairly 
warrant such an inference. In case of a bilateral 
contract, "acceptance" of an offer need not be ex
pressed, but may be shown by any words or acts indi
cating the offeree's assent to the proposed bargain. 
Qualified. One either conditional or partial, and 
which introduces a variation in the sum, mode, or place 
of payment. In contract law, an acceptance based on a 
variation of the terms of the offer and hence a counter
offer. In negotiable instruments, a variation in the 
terms of the instrument by the acceptor. 
Acceptance au besoin hikseptons ow b�zwren/. Fr. 
Acceptance in case of need. An acceptance by one 
whom a bill is drawn au besoin, that is, in case of refusal 
or failure of the drawee to accept. 
Acceptare I reksepteriy I. Lat. To accept; to assent; to 
assent to a promise made by another. 
Accepteur par intervention I rekseptylir par 
rent�rvonsyown/. In French law, acceptor of a bill of 
honor. 
Acceptilation I reksept�leysh�nl . In the civil and Scotch 
law, release made by a creditor to his debtor of his debt, 
without receiving any consideration. It is a species of 
donation, but not subject to the forms of the latter, and 
is valid unless in fraud of creditors. The verbal extinc
tion of a verbal contract, with a declaration that the 
debt has been paid when it has not; or the acceptance of 
something merely imaginary in satisfaction of a verbal 
contract. 
Acceptor. The person (the drawee) who accepts a draft 
and who engages to be primarily responsible for its 
payment. One who engages that he will pay the draft 
according to its tenor at the time of his engagement or 
as completed pursuant to authority on incomplete in
struments. U.C.C. § 3-413. 
Acceptor supra protest I �ksepter s(y)uwpr� prowtest/. 
One who accepts a bill which has been protested, for the 
honor of the drawer or any one of the indorsers. 
Access. Freedom of approach or communication; or the 
means, power, or opportunity of approaching, communi
cating, or passing to and from. Sometimes importing 
the occurrence of sexual intercourse, Jackson v. Jack
son, 182 Okl. 74, 76 P.2d 1062, 1066; otherwise as 
importing opportunity of communication for that pur
pose as between husband and wife. 
In real property law, the term "access" denotes the 
right vested in the owner of land which adjoins a road or 
other highway to go and return from his own land to the 
highway without obstruction. "Access" to property does 
not necessarily carry with it possession. People v. Bren
neauer, 101 Misc. 156, 166 N.Y.S. 801, 806. See Access, 
easement of. 
For purposes of establishing element of access by 
defendant in copyright infringement action, "access" is

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ACCESS 
ordinarily defined as opportunity to copy. Musto v. 
Meyer, D.C.N.Y., 434 F.Supp. 32, 34. 
Multiple access. The defense of several lovers in pater
nity actions. Yarmark v. Strickland, 193 So.2d 212. 
Public records. The right of access to public records 
includes not only a legal right of access but a reasonable 
opportunity to avail oneself of the same. See Freedom 
of Information Act. 
Accessary. See Accessory. 
Access, easement of liyzm:mt :;)v rekses/. An easement 
of access is the right which an abutting owner has of 
ingress to and egress from his premises, in addition to 
the public easement in the street. 
Accessio lreksesh(iy)ow/. In Roman law, an increase or 
addition; that which lies next to a thing, and is supple
mentary and necessary to the principal thing; that 
which arises or is produced from the principal thing; an 
"accessory obligation" (q.v.). One of the modes of ac
quiring property, being the extension of ownership over 
that which grows from, or is united to, an article which 
one already possesses. 
Accessio includes both accession and accretion as used in 
the common law. See Adjunction. 
Accession. Coming into possession of a right or office; 
increase; augmentation; addition. 
The right to all which one's own property produces, 
whether that property be movable or immovable; and 
the right to that which is united to it by accession, 
either naturally or artificially. The right to own things 
that become a part of something already ' owned; e.g. 
riparian owners' right to abandoned river beds and 
rights of alluvion by accretion and reliction. Manry v. 
Robison, 122 Tex. 213, 56 S.W.2d 438, 443, 444. See 
Accretion. 
A principle derived from the civil law, by which the 
owner of property becomes entitled to all which it pro
duces, and to all that is added or united to it, either 
naturally or artificially, (that is, by the labor or skill of 
another) even where such addition extends to a change 
of form or materials; and by which, on the other hand, 
the possessor of property becomes entitled to it, as 
against the original owner, where the addition made to 
it by his skill and labor is of greater value than the 
property itself, or where the change effected in its form 
is so great as to render it impossible to restore it to its 
original shape. 
Generally, "accession" signifies acquisition of title to 
personal property by bestowing labor on it which con
verts it into an entirely different thing or by incorpo
ration of property into a union with other property. 
IDS Leasing Corp. v. Leasing Associates, Inc., Tex.Civ. 
App., 590 S.W.2d 607, 609. 
The commencement or inauguration of a sovereign's 
reign. 
International law. The absolute or conditional accept
ance by one or several nations of a treaty already 
concluded between other sovereignties. It may be of two 
14 
kinds: First, the formal entrance of a third nation into a 
treaty so that such nation becomes a party to it; and 
this can only be with the consent of the original parties. 
Second, a nation may accede to a treaty between other 
nations solely for the purpose of guarantee, in which 
case, though a party, it is affected by the treaty only as 
a guarantor. See Adhesion. 
Accessions. Goods which are installed in or affixed to 
other goods. V.C.C. § 9-314(1). See also Fixture. 
Accessorium non ducit, sed sequitur suum principale 
I reksesoriy:;)m non dyuws:;)t sed sekw:;)t:;)r syuw:;)m 
prins:;)peyliy/. That which is the accessory or incident 
does not lead, but follows, its principal. 
Accessorius sequitur naturam sui principalis 
I reksesoriy:;)s sekw:;)d:;)r neytyur:;)m syuway prins:;)peyl:;)s/. 
An accessory follows the nature of his principal. One 
who is accessory to a crime cannot be guilty of a higher 
degree of crime than his principal. 
Accessory. Anything which is joined to another thing 
as an ornament, or to render it more perfect, or which 
accompanies it, or is connected with it as an incident, or 
as subordinate to it, or which belongs to or with it. 
Adjunct or accompaniment. Louis Werner Saw Mill Co. 
v. White, 205 La. 242, 17 So.2d 264, 270. A thing of 
subordinate importance. Aiding or contributing in sec
ondary way or assisting in or contributing to as a 
subordinate. Gilfoil v. Greenspon, La.App., 216 So.2d 
829, 831. 
Criminal law. Contributing to or aiding in the commis
sion of a crime. One who, without being present at the 
commission of a felonious offense, becomes guilty of such 
offense, not as a chief actor, but as a participator, as by 
command, advice, instigation, or concealment; either 
before or after the fact or commission; a particeps 
criminis. Model Penal Code, § 2.06. 
One who is not the chief actor in the offense, nor 
present at its performance, but in some way concerned 
therein, either before or after the act committed. One 
who aids, abets, commands, or counsels another in the 
commission of a crime. See also Abettor; Aid and abet; 
Accomplice. 
Accessory after the fact. A person who, knowing a 
felony to have been committed by another, receives, 
relieves, comforts or assists the felon, in order to enable 
him to escape from punishment, or the like. Robinson 
v. State, 5 Md.App. 723, 249 A.2d 504, 507; 18 V.S.C.A. 
§ 3. See also Harbor; Obstructi ng justice. 
Accessory before the fact. One who orders, counsels, 
encourages, or otherwise aids and abets another to 
commit a felony and who is not present at the commis
sion of the offense. Com. v. Leach, 455 Pa. 448, 317 
A.2d 293, 294. The primary distinction between the 
accessory before the fact and the principal in the sec
ond degree is presence. Virtually all states have now 
expressly abrogated' the distinction between principals 
and accessories before the fact; the latter now being 
classified as principals.

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15 
Accessory during the fact. One who stands by without 
interfering or giving such help as may be in his power 
to prevent the commission of a criminal offense. 
Accessory building. Structures used for benefit of 
main building; e.g. tool shed. Out-buildings. 
Accessory contract. An accessory contract is made for 
assuring the performance of a prior contract, either by 
the same parties or by others; such as suretyship, mort
gage, and pledge. 
Accessory obligation. An obligation which is inciden
tal to another or principal obligation; e.g. the obligation 
of a surety. 
Accessory use. With reference to zoning law, an "acces
sory use" in its ordinary signification is a use which is 
dependent on or pertains to principal or main use. 
Town of Foxborough v. Bay State Harness Horse Racing 
& Breeding Ass'n, Inc., Mass.App., 366 N.E.2d 773, 777. 
A use which is subordinate to, clearly incidental to, 
customary in connection with, and ordinarily located on 
same lot with, principal use. Board of County Com'rs of 
Boulder County v. Thompson, 177 Colo. 277, 493 P.2d 
1358, 1360. 
Access to counsel. Right of one to consult with his 
attorney as guaranteed by the 6th Amendment, U.S. 
Const. Geders v. U. S., 425 U.S. 80, 96 S.Ct. 1330, 47 
L.Ed.2d 592. See also Counsel, right to. 
Access to courts. Right of person to require fair hear
ing from judiciary. Gilmore v. Lynch, D.C.Cal., 319 
F.Supp. 105, 110. 
Accident. The word "accident" is derived from the 
Latin verb "accidere" signifying "fall upon, befall, hap
pen, chance." In an etymological sense anything that 
happens may be said to be an accident and in this sense, 
the word has been defined as befalling a change; a 
happening; an incident; an occurrence or event. In its 
most commonly accepted meaning, or in its ordinary or 
popular sense, the word may be defined as meaning: a 
fortuitous circumstance, event, or happening; an event 
happening without any human agency, or if happening 
wholly or partly through human agency, an event which 
under the circumstances is unusual and unexpected by 
the person to whom it happens; an unusual, fortuitous, 
unexpected, unforeseen or unlooked for event, happen
ing or occurrence; an unusual or unexpected result 
attending the operation or performance of a usual or 
necessary act or event; chance or contingency; fortune; 
mishap; some sudden and unexpected event taking 
place without expectation, upon the instant, rather than 
something which continues, progresses or develops; 
something happening by chance; something unforeseen, 
unexpected, unusual, extraordinary or phenomenal, tak
ing place not according to the usual course of things or 
events, out of the range of ordinary calculations; that 
which exists or occurs abnormally, or an uncommon 
occurrence. The word may be employed as denoting a 
calamity, casualty, catastrophe, disaster, an undesirable 
or unfortunate happening; any unexpected personal in
jury resulting from any unlooked for mishap or occur-
ACCIDENT 
rence; any unpleasant or unfortunate occurrence, that 
causes injury, loss, suffering or death; some untoward 
occurrence aside from the usual course of events. An 
event that takes place without one's foresight or expec
tation; an undesigned, sudden, and unexpected event. 
Kochring Co. v. American Auto. Ins. Co., C.A.Wis., 353 
F.2d 993, 996. See also Act of God; Casualty; Inevitable 
accident; Unavoidable accident. 
Its synonyms are chance, contingency, mishap, mis
chance, misfortune, disaster, calamity, catastrophe. 
Automobiles. The word as used in automobile liability 
policy requiring notice of any "accident" to be given to 
the insurer as a condition precedent to liability means 
an untoward and unforeseen occurrence in the operation 
of the automobile which results in injury to the person 
or property of another. Ohio Casualty Ins. Co. v. Marr, 
C.C.A.Okl., 98 F.2d 973, 975. The word "accident", 
requiring operator of vehicle to stop immediately in case 
of accident, contemplates any situation occurring on the 
highway wherein driver so operates his automobile as to 
cause injury to the property or person of another using 
the same highway. See also Hit and run accident. 
Insurance contract. An accident within accident insur
ance policies is an event happening without any human 
agency, or, if happening through such agency, an event 
which, under circumstances, is unusual and not expect
ed by the person to whom it happens. A more compre
hensive term than "negligence," and in its common 
signification the word means an unexpected happening 
without intention or design. 
Maritime law. "Accidents of navigation" or "accidents 
of the sea" are such as are peculiar to the sea or to usual 
navigation or the action of the elements, which do not 
happen by the intervention of man, and are not to be 
avoided by the exercise of proper prudence, foresight, 
and skill. The G. R. Booth, 171 U.S. 450, 19 S.Ct. 9, 43 
L.Ed. 234. See also Perils of the sea. 
Unavoidable accident. One which is not occasioned in 
any degree, either directly or remotely, by the want of 
such care and prudence as the law holds every man 
bound to exercise. Vincent v. Johnson, Tex.Civ.App., 
117 S.W.2d 135. One which could not have been pre
vented by exercise of due care by both parties under 
circumstances prevailing. Woodiwiss v. Rise, 3 Wash. 
App. 5, 471 P.2d 124, 126. One which occurs while all 
persons concerned are exercising ordinary care, which is 
not caused by fault of any of persons and which could 
not have been prevented by any means suggested by 
common prudence. Cavanaugh v. Jepson, Iowa, 167 
N.W.2d 616, 623. See Restatement, Second, Torts § 8. 
See also Unavoidable accident. 
Workers' compensation acts. Within meaning of Work
er's Compensation Act is any unforeseen, untoward hap
pening which was not to be reasonably anticipated. 
A.P. Green Refractories Co. v. Workmen's Compensation 
Appeal Bd., 8 Pa.Cmwlth. 172, 301 A.2d 914, 917. As 
referred to in Act is an unlooked for and untoward event 
which is not expected or designed by injured employee; 
a result produced by a fortuitous cause. Reams v.

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ACCIDENT 
Burlington Industries, 42 N.C.App. 54, 255 S.E.2d 586, 
587. 
Accident policy. Type of business and personal insur
ance coverage that insures against loss resulting directly 
from bodily injuries effected during the term of the 
policy solely through accidental means. 
Accidental. Happening by chance, or unexpectedly; 
taking place not according to usual course of things; 
casual; fortuitous. Norris v. New York Life Ins. Co., 
C.C.A.Md., 49 F.2d 62, 63; Murphy v. Travelers Ins. Co., 
141 Neb. 41, 2 N.W.2d 576, 578, 579. See also Accident. 
Accidental cause. That which produces result which is 
not foreseen; producing an unexpected effect. Fernan
dez v. Flint Bd. of Ed., C.A.Mich., 283 F.2d 906, 908. See 
also Accidental. 
Accidental death. One caused by unexpected or unin
tended means. Sanders v. Metropolitan Life Ins. Co., 
104 Utah 75, 138 P.2d 239. 
Accidental death benefit. Provision in insurance poli
cy encompassing death caused by sudden, unexpected, 
external force. Maneval v. Lutheran Bros., Del.Super., 
281 A.2d 502, 506. 
Accidental killing. One resulting from an act which is 
lawful and lawfully done under a reasonable belief that 
no harm is possible; distinguished from "involuntary 
manslaughter," which is the result of an unlawful act, 
or of a lawful act done in an unlawful way. 
Accidental means. Injury resulting from unintended, 
unforseeable, and unexpected cause. 
Accidental vein. See Vein. 
Accident proneness. Tendency towards being involved 
in or contributing to accidents. 
Accidere I reksidariy I. Lat. To fall; fall in; come to 
hand; happen. Judgment is sometimes given against 
an executor or administrator to be satisfied out of assets 
quando acciderint; i.e., when they shall come to hand. 
Accion hiksiyown/. In Spanish law, a right of action; 
also the method of judicial procedure for the recovery of 
property or a debt. 
Accipere quid ut justitiam facias, non est tam acci
pere quam extorquere lreksipariy kwid ;}t j;}stishiyam 
feyshiyas, non est teem reksipariy kwrem ekstorkwariy I. 
To accept anything as a reward for doing justice is 
rather extorting than accepting. 
Accipitare I reksipateriy I. To pay relief to lords of man
ors. Capitali domino accipitare, i.e., to pay a relief, 
homage, or obedience to the chief lord on becoming his 
vassal. 
Accola leekala/. Civil law. One who inhabits or occu
pies land near a place, as one who dwells by a river, or 
on the bank of a river. 
Feudal law. A husbandman; an agricultural tenant; a 
tenant of a manor. A name given to a class of villeins 
in Italy. 
16 
Accomenda lrekamenda/. In maritime law, a contract 
between the owner of goods and the master of a ship, by 
which the former intrusts the property to the latter to 
be sold by him on their joint account. In such case, two 
contracts take place: First, the contract called manda
tum, by which the owner of the property gives the 
master power to dispose of it; and the contract of 
partnership, in virtue of which the profits are to be 
divided between them. One party runs the risk of losing 
his capital; the other, his labor. If the sale produces no 
more than first cost, the owner takes all the proceeds. 
It is only the profits which are to be divided. 
Accommodated party. One to whom the credit of the 
accommodation party is loaned, and is not necessarily 
the payee, since the inquiry always is as to whom did 
the maker of the paper loan his credit as a matter of 
fact; not third person who may receive advantage. See 
also Accommodation party. 
Accommodation I akomadeyshan/. An arrangement or 
engagement made as a favor to another, not upon a 
consideration received. Something done to oblige, 
usually spoken of a loan of money or commercial paper; 
also a friendly agreement or composition of differences. 
The word implies no consideration. While a party's 
intent may be to aid a maker of note by lending his 
credit, if he seeks to accomplish thereby legitimate ob
jects of his own, and not simply to aid maker, the act is 
not for accommodation. See Accommodation maker. 
Accommodation bill or note. See Accommodation pa
per. 
Accommodation indorsement. See Indorsement. 
Accommodation indorser. A party who places his 
name to a note without consideration for purpose of 
benefiting or accommodating some other party. U.C.C. 
§ 3-415. See also Indorsement. 
Accommodation lands. Land bought by a builder or 
speculator, who erects houses thereon, and then leases 
portions thereof upon an improved ground-rent. 
Accommodation line. Insurance policies accepted by 
insurer because agent or brokers account in general is 
satisfactory, even though specific policy would otherwise 
likely not be acceptable. 
Accommodation loan. Loan furnished as an act of 
friendship or assistance without tangible or full consid
eration; money or credit extended for such reasons. 
Accommodation maker. One who puts his name to a 
note without any consideration with the intention of 
lending his credit to the accommodated party. In re 
Chamberlain's Estate, Cal.App., 109 P.2d 449, 454. 
U.C.C. § 3-415. See also Accommodation party. 
Accommodation note. One to which accommodating 
party has put his name, without consideration, to accom
modate some other party, who is to issue it and is 
expected to pay it. U.C.C. § 3-415. 
Accommodation paper. An accommodation bill or note 
is one to which the accommodating party, be he accep
tor, drawer, or indorser, has put his name, without

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17 
consideration, for the purpose of benefiting or accommo
dating some other party who desires to raise money on 
it, and is to provide for the bill when due. Hickox v. 
Hickox, Tex.Civ.App., 151 S.W.2d 913, 917. Such must 
be executed for the purpose of loaning credit, and inci
dental benefit to party is insufficient. Morrison v. 
Painter, Mo.App., 170 S.W.2d 965, 970. 
Accommodation party. One who signs commercial pa
per in any capacity for purpose of lending his name (i.e. 
credit) to another party to instrument. U.C.C. § 3-415. 
Such party is a surety. 
Accommodation road. A road opened for benefit of 
certain individuals to go from and to their homes, for 
service of their lands, and for use of some estates exclu
sively. See also Easement. 
Accommodatum / ;}kom;}deyt;}m/. The same as Com
modatum (q.v.). 
Accompany. To go along with. To go with or attend as 
a companion or associate. To occur in association with. 
United States v. Lee, C.C.A.Wis., 131 F.2d 464, 466. The 
word has been defined judicially in cases involving var
ied facts; thus; an automobile driver under sixteen is 
not accompanied by an adult person unless the latter 
exercises supervision over the driver; an unlicensed 
driver is not accompanied by a licensed driver unless th� 
latter is near enough to render advice and assistance. 
Accomplice /;}k6mpl;}s/. One who knowingly, voluntar
ily and with common intent unites with the principal 
offender in the commission of a crime. Smith v. State, 
Tenn.Cr.App., 525 S.W.2d 674, 676; Model Penal Code, 
§ 2.06(3). One who is in some way concerned or associ
ated in commission of crime; partaker of guilt; one who 
aids or assists, or is an accessory. McLendon v. U. S., 
C.C.A.Mo., 19 F.2d 465, 466. Equally concerned in the 
commission of crime. Fryman v. Commonwealth, 289 
Ky. 540, 159 S.W.2d 426, 429. One who is guilty of 
complicity in crime charged, either by being present and 
aiding or abetting in it, or having advised and encour
aged it, though absent from place when it was commit
ted, though mere presence, acquiescence, or silence, in 
the absence of a duty to act, is not enough, no matter 
how reprehensible it may be, to constitute one an accom
plice. One is liable as an accomplice to the crime of 
another if he gave assistance or encouragement or failed 
to perform a legal duty to prevent it with the intent 
thereby to promote or facilitate commission of the 
crime. See also Abet; Aid and abet; Accessory. 
Accomplice liability. Criminal responsibility of one 
who acts with another before, during or after the perpe
tration of a crime. Model Penal Code, § 2.06. 
Accomplice witness. A person who either as principal, 
accomplice, or accessory, was connected with crime by 
unlawful act or omission on his part, transpiring either 
before, at time of, or after commission of offense, and 
whether or not he was present and participated in 
crime. Johnson v. State, Tex.Cr.App., 502 S.W.2d 761, 
763. 
ACCORD AND SATISFACTION 
Accord, n. An agreement between two persons, one of 
whom has a right of action against the other, to settle 
the dispute. In a debtor/creditor relationship, an agree
ment between the parties to settle a dispute for some 
partial payment. It is called an accord because the 
creditor has a right of action against the debtor. 
A satisfaction agreed upon between the party injuring 
and the party injured which, when performed, is a bar 
to all actions upon this account. An accord being a 
contract, the requirements of mutual assent and consid
eration must be met. Buob v. Feenaughty Machinery 
Co., 191 Wash. 477, 71 P.2d 559, 564. An agreement 
whereby one of parties undertakes to give or perform, 
and other to accept, in satisfaction of liquidated or 
disputed claim arising i��ither contract or tort some
thing different or less ,rry:m what he is or considers 
himself entitled to; and • satisfaction" is execution or 
performance of agreement. Harris, Upham & Co., Inc. 
v. Ballantyne, Tex.Civ.App., 538 S.W.2d 153, 158. It 
may arise both where the demand itself is unliquidated 
or in dispute, and where the amount and nature of the 
demand is undisputed, and it is agreed to give and take 
less than the demand. See Accord and satisfaction; 
Compromise and settlement; Executory accord; Satisfac
tion. 
Accord, v. In practice, to agree or concur, as one judge 
with another. In agreement with. See Concur; Concur
ring opinion. 
Accordance. Agreement; harmony; concord; conformi
ty. City and County of San Francisco v. Boyd, 22 Ca1.2d 
685, 140 P.2d 666, 668. 
Accord and satisfaction. A method of discharging a 
claim whereby the parties agree to give and accept 
something in settlement of the claim and perform the 
agreement, the "accord" being the agreement and the 
"satisfaction" its execution or performance, and it is a 
new contract substituted for an old contract which is 
thereby discharged, or for an obligation or cause of 
action which is settled, and must have all of the ele
ments of a valid contract. Holm v. Hansen, Iowa, 248 
N.W.2d 503, 506. An executory bilateral contract of 
"accord" is an agreement embodying a promise, express 
or implied, to accept at some future time a stipulated 
performance in satisfaction or discharge in whole or in 
part of any present claim, cause of action or obligation, 
and a promise express or implied to render such per
formance. Such arises where parties, by a subsequent 
agreement, have satisfied the former one, and the latter 
agreement has been executed. The execution of a new 
agreement may itself amount to a satisfaction, where it 
is so expressly agreed by the parties; and without such 
agreement, if the new promise is founded on a new 
consideration, in which case the taking of the new 
consideration amounts to the satisfaction of the former 
contract. 
Accord and satisfaction may also arise in a criminal 
case. See e.g. Mass.Gen.L. c. 276, § 55. 
In some jurisdictions, novation is a species of accord 
and satisfaction.

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ACCORD AND SATISFACTION 
See Compromise and settlement; Novation; Satisfac
tion; Settlement. 
Affirmative defense. A defense which must be pleaded 
affirmatively in the def endant's answer. Fed.R.Civ.P. 
8(c). 
Accordant I�kord�nt/. Fr. and Eng. Agreeing; concur
ring. 
Accord executory. A bilateral agreement of settlement 
which has not yet been performed (satisfied). Restate
ment, Second, Contracts, § 281. 
Accouchement I rekuwshmon/. The act of a woman in 
giving birth to a child. The fact of the accouchement, 
which may be proved by the direct testimony of one who 
was present, as a physician or midwife, is often impor
tant evidence in proving parentage. 
Account. A detailed statement of the mutual demands 
in the nature of debit and credit between parties, arising 
out of contracts or some fiduciary relation. A statement 
in writing, of debits and credits, or of receipts and 
payments; a list of items of debits and credits, with 
their respective dates. A statement of pecuniary trans
actions; a record or course of business dealings between 
parties; a list or statement of monetary transactions, 
such as payments, losses, sales, debits, credits, accounts 
payable, accounts receivable, etc., in most cases showing 
a balance or result of comparison between items of an 
opposite nature. 
See also Aging of accounts; Blocked account; Charge 
account; Community account; Custody account; Contra 
account; Escrow account; Impound account; Intermediate 
account; Liquidated account; Leger; Lang account; Mar
gin account; Nominal account; Stated account; State
ment of account. For Open account, see Open. 
Account annexed. Form of simplified statement used in 
pleading a common count (e.g. money had and received) 
impliedly authorized for use under Fed.R.Civil P. 8(a)(2). 
Account balance. Difference between debit and credit 
sides of an account. 
Account debtor. Person who is obligated on an account, 
chattel paper or general intangible. U.C.C. 
§ 9-105(1)(a). 
Account payable. A debt, owed by an enterprise, that 
arises in the normal course of business dealings and has 
not been replaced by a note payable of a debtor. For 
example, bills for materials received but not yet paid. 
Contract obligations owing by a person on open account. 
State Tax Commission v. Shattuck, 44 Ariz. 379, 38 P.2d 
631, 639. A liability representing an amount owed to a 
creditor, usually arising from purchase of merchandise 
or materials and supplies; not necessarily due or past 
due. 
Account receivable. A debt, owed to an enterprise, that 
arises in the normal course of business dealings and is 
not supported by negotiable paper. For example, the 
charge accounts of a department store. But income due 
from investments (unless investments are the business 
18 
itself) is not usually shown in accounts receivable. A 
claim against a debtor usually arising from sales or 
services rendered; not necessarily due or past due. For 
accounts receivable insurance, see Insurance. 
Account rendered. An account made out by the creditor, 
and presented to the debtor for his examination and 
acceptance. When accepted, it becomes an account stat
ed. 
Account settled. One in which the balance has been in 
fact paid, thereby differing from an account stated. 
Account stated. An agreed balance between parties to a 
settlement. Eng v. Stein, 123 Ariz. 343, 599 P.2d 796, 
800. 
Adjunct account. An account that accumulates addi
tions to another account. 
Bank account. See Bank. 
Book account. See Book. 
Closed account. An account to which no further addi
tions can be made on either side, but which remains still 
open for adjustment and set-off, which distinguishes it 
from an account stated. 
Commercial transactions. In the check collection pro
cess, "any account with a bank and includes a checking, 
time, interest or savings account." U.C.C. § 4-104(1)(a). 
In secured transactions law, "any right to payment for 
goods sold or leased or for services rendered which is not 
evidenced by an instrument or chattel paper, whether or 
not it has been earned by performance," including ordi
nary accounts receivable and rights under a ship char
ter, U.C.C. § 9-106, and also the right to proceeds of a 
letter of credit. U.C.C. § 5-116(2). 
Contra account. An account which serves to reduce the 
gross valuation of an asset, also known as a valuation 
allowance. For example, accumulated depreciation 
serves as a valuation allowance for machinery and 
equipment. Contrast with adjunct account, above. 
Current account. An open or running or unsettled ac
count between two parties; the antithesis of an account 
stated. 
Mutual accounts. Accounts comprising mutual credits 
between the parties; or an existing credit on one side 
which constitutes a ground for credit on the other, or 
where there is an understanding that mutual debts shall 
be a satisfaction or set-off pro tanto between the parties. 
A "mutual account" arises when there are items debited 
and credited on both sides of the account which indicate 
mutual transactions between the parties. State for Use 
and Benefit of State Hospital v. Hintz, N.D., 281 N.W.2d 
564, 567. 
Open account. An account which has not been finally 
settled or closed, but is still running or open to future 
adjustment or liquidation. Open account, in legal as 
well as in ordinary language, means an indebtedness 
subject to future adjustment, and which may be reduced 
or modified by proof.

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19 
Account, or account render. "Account," sometimes 
called "account render," was a form of action at common 
law against a person who by reason of some . fiduciary 
relation (as guardian, bailiff, receiver, etc.) was bound to 
render an account to another, but refused to do so. 
Peoples Finance & Thrift Co. of Visalia v. Bowman, 58 
CaI.App.2d 729, 137 P.2d 729, 731. 
Accountability. State of being responsible or answera
ble. See also Liability. 
Accountable. Subject to pay; responsible; liable. 
Accountable receipt. An instrument acknowledging 
the receipt of money or personal property, coupled with 
an obligation. 
Accountant. Person who works in field of accounting 
and is skilled in keeping books or accounts; in designing 
and controlling systems of account; in giving tax advice 
and preparing tax returns. 
An accountant authorized under applicable law to 
practice public accounting, and includes professional 
accounting association, corporation, or partnership, if so 
authorized. Bankruptcy Code, § 101. 
Certified Public Accountant (CPA). An accountant who 
has satisfied the statutory and administrative require
ments of his or her jurisdiction to be registered or 
licensed as a public accountant. In addition to passing 
the Uniform CPA Examination administered by the 
AICPA, the CPA must meet certain business experience, 
educational and moral requirements that differ from 
jurisdiction to jurisdiction. See also Auditor. 
Cost accountant. See Cost. 
Accountant privilege. Protection afforded to client 
from disclosure by accountant of materials submitted to 
or prepared by accountant. 
Accountants, chartered. Persons skilled in the keeping 
and examination of accounts, who are employed for the 
purpose of examining and certifying to the correctness 
of accounts of corporations and others. British Com
monwealth equivalent of Certified Public Accountant. 
Accountant's lien. Possessory right of accountant to 
papers prepared by him and held until payment is made 
for his services. 
Account book. A book kept by a merchant, trader, 
professional, or other person, in which are entered from 
time to time the transactions of his trade, business, or 
profession. Entries made therein are admissible in evi
dence as exception to hearsay rule under certain condi
tions. Fed.Evid.R. 803. 
Account computatio. As term is used in proceedings of 
courts of law or equity, is some matter of debt and 
credit, or demand in nature thereof. Coleman v. Kansas 
City, 351 Mo. 254, 173 S.W.2d 572, 576. 
Account for. To pay over to the person entitled thereto. 
U. S. v. Rehwald, D.C.Cal., 44 F.2d 663. To furnish 
substantial reasons or convincing explanation, make 
clear or reveal basic causes. People v. Weger, 251 
C.A.2d 584, 59 CaI.Rptr. 661, 668. 
ACCOUNTING 
Accounting. An act or a system of making up or set
tling accounts, consisting of a statement of account with 
debits and credits arising from relationship of parties. 
State ex reI. King v. Harvey, Miss., 214 So.2d 817, 819. 
Rendition of an account, either voluntarily or by order 
of a court. In the latter case, it imports a rendition of a 
judgment for the balance ascertained to be due. The 
term may include payment of the amount due. 
In partnership law, is equitable proceeding for a com
plete settlement of all partnership affairs. 
The methods under which income and expenses are 
determined for tax purposes. Major accounting meth
ods are the cash basis and the accrual basis. Special 
methods are available for the reporting of gain on in
stallment sales, recognition of income on construction 
projects (i.e., the completed-contract and percentage-of
completion methods), and the valuation of inventories 
(i.e. last-in first-out and first-in first-out). The various 
types of accounting methods appear below: 
Accrual method. A method of keeping accounts which 
shows expenses incurred and income earned for a given 
period, although such expenses and income may not 
have been actually paid or received. Right to receive 
and not the actual receipt determines inclusion of 
amount in gross income. When right to receive an 
amount becomes fixed, right accrues. Obligations pay
able to or by taxpayer are treated as if discharged when 
incurred. H. Liebes & Co. v. Commissioner of Internal 
Revenue, C.C.A.9, 90 F.2d 932, 936. Entries are made of 
credits and debits when liability arises, whether re
ceived or disbursed. Insurance Finance Corporation v. 
Commissioner of Internal Revenue, C.C.A.3, 84 F.2d 382. 
See also Accrual basis; Accrue (Taxation). 
Cash method. The practice of recording income and 
expense only when cash is received or paid out; used in 
contradistinction to accrual method. See Cash basis 
accounting. 
Completed contract method. A method of reporting prof
it or loss on certain long-term contracts. Under this 
method of accounting, gross income and expenses are 
recognized in the tax year in which the contract is 
completed. This method should be used only when the 
conditions or terms of the contract do not permit use of 
the percent of completion method. 
Cost method. The practice of recording the value of 
assets in terms of their cost. See also Cost (Cost ac
counting). 
Fair value method. Valuation of assets at present val
ue, meaning same as actual value or market value. 
Kerr v. Klinchfield Coal Corp., 169 Va. 149, 192 S.E. 741, 
744. 
Flow through method. Type of calculation of deprecia
tion used by regulated utilities for income tax purposes. 
Federal Power Commission v. Memphis Light, Gas, & 
Water Division, 411 U.S. 458, 93 S.Ct. 1723, 36 L.Ed.2d 
426. 
Installment method. Procedure applied in reflecting 
collection of sales price in installments.

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ACCOUNTING 
Price level accounting. Modern method of valuing assets 
in a financial statement which requires use of gross 
national product to reflect current values. See also 
Change in accounting method. 
See also Generally Accepted Accounting Principles; 
Generally Accepted Auditing Standards; Installment meth
od; Interim statements; Percentage of completion meth
od; Purchase method of accounting; T-Account; Tri
al (Trial balance). 
Accounting for profits. Action for equitable relief 
against one in a fiduciary relation to recover profits 
taken in breach of relation. 
Accounting period. The period of time, usually a year, 
used by a taxpayer in the determination of income and 
related tax liability. Unless a fiscal year is chosen, 
taxpayers must determine and pay their income tax 
liability by using the calendar year (i.e., January 1 
through December 31) as the period of measurement. 
An example of a fiscal year is July 1 through June 30. 
A change in accounting periods (e.g., from a calendar 
year to a fiscal year) generally requires the consent of 
the Internal Revenue Service. Some new taxpayers, 
such as a newly formed corporation, are free to select 
either an initial calendar or a fiscal year without the 
consent of the Internal Revenue Service. See Annual 
accounting period; Fiscal year. 
Accounting Research Bulletin (ARB). Statement on 
recommended accounting procedures issued by the 
American Institute of Certified Public Accountants' 
Committee on Accounting Procedure. 
Accounting Series Release (ASR). The official pro
nouncements issued by the Securities and Exchange 
Commission to clarify accounting and auditing proce
dures to be followed in reports filed with the SEC. 
Account in trust. Account established by an individual 
to be held in trust for the benefit of another. 
Account party. The customer in a letter of credit 
transaction. Synonymous also with "applicant." 
Account payable. See Account. 
Account receivable. See Account. 
Accounts receivable insurance. Insurance against loss 
due to inability to collect outstanding accounts receiva
ble because of damage to or destruction of records. 
Account stated. An agreed balance between parties to 
a settlement. Eng v. Stein, 123 Ariz. 343, 599 P.2d 796, 
800. See also Account. 
Accouple. I�k;)p�l/. To unite; to marry. Ne unques 
accouple Iniy ;)IJkwiyz �k;)p�l/ never married. 
Accredit I �kred�t/. To give official authorization or 
status. To recognize as having sufficient academic stan
dards to qualify graduates for higher education or for 
professional practice. In international law: (1) To ac
knowledge; to receive as an envoy in his public charac
ter, and give him credit and rank accordingly. (2) To 
send with credentials as an envoy. This latter use is 
now the accepted one. 
20 
Accredited law school. Law school which has been 
approved by the state and the Association of American 
Law Schools and/or the American Bar Association. In 
certain states (e.g. Calif.) a law school might be accredit
ed by the state, but not by either the AALS or ABA. In 
most states only graduates of AALS or ABA accredited 
law schools are permitted to take the state bar exam. 
Accredited representative. As respects service of pro
cess, representative having general authority to act. 
Accredulitare I �kredy�l�teriy I. Lat. To purge an of
fense by oath .. 
Accretion I �kriysh�nl . The act of growing to a thing; 
usually applied to the gradual and imperceptible accu
mulation of land by natural causes, as out of the sea or a 
river. 
Civil law. The right of heirs or legatees to unite or 
aggregate with their shares or portions of the estate the 
portion of any co-heir or legatee who refuses to accept it, 
fails to comply with a condition, becomes incapacitated 
to inherit, or dies before, the testator. 
Land. Addition of portions of soil, by gradual deposition 
through the operation of natural causes, to that already 
in possession of owner. Willett v. Miller, 176 Okl. 278, 
55 P.2d 90, 92. Accretion of land is of two kinds: By 
alluvion, i.e., by the washing up of sand or soil, so as to 
form firm ground; or by dereliction, as when the sea 
shrinks below the usual water-mark. The term "allu
vion" is applied to deposit itself, while "accretion" de
notes the act. However, the terms are frequently used 
synonymously. Land uncovered by gradual subsidence 
of water is not an "accretion" but a "reliction ". 
Trust property. Receipts other than those ordinarily 
considered as income. 
See Accrue; Alluvion; Avulsion; Reliction. 
Accroach. To encroach; to exercise power without au
thority. 
Accrocher lrekrowshey/. Fr. To delay; retard; put off. 
Accrocher un proces, to stay the proceedings in a suit. 
Accrual accounting. See Accounting. 
Accrual basis. A method of accounting that reflects 
expenses incurred and income earned for any one tax 
year. In contrast to the cash basis of accounting, ex
penses do not have to be paid to be deductible nor does 
income have to be received to be taxable. Unearned 
income (e. g., prepaid interest and rent) generally is 
taxed in the year of receipt regardless of the method of 
accounting used by the taxpayer. See Accounting. 
Accrual, clause of. See Accruer, clause of. 
Accrual method of accounting. See Accounting. 
Accrue I �kruw I. Derived from the Latin, "ad" and 
"creso," to grow to. In past tense, in sense of due and 
payable; vested. It means to increase; to augment; to 
come to by way of increase; to be added as an increase, 
profit, or damage. Acquired; falling due; made or 
executed; matured; occurred; received; vested; was 
created; was incurred. H. Liebes & Co. v. Commissioner

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21 
of Internal Revenue, C.C.A.9, 90 F.2d 932, 936. To 
attach itself to, as a subordinate or accessory claim or 
demand arises out of, and is joined to, its principal. 
Lifson v. Commissioner of Internal Revenue, C.C.A.8, 98 
F.2d 508. 
The term is also used of independent or original 
demands, meaning to arise, to happen, to come into 
force or existence; to vest, as in the phrase, "The right 
of action did not accrue within six years." Amy v. 
Dubuque, 98 U.S. 470, 476, 25 L.Ed. 228. To become a 
present right or demand; to come to pass. See also 
Vested. 
Cause of action. A cause of action "accrues" when a 
suit may be maintained thereon, and the law in this 
regard differs from state-to-state and by nature of action 
(e.g. type of breach of contract, tort, etc.). Dillon v. 
Board of Pension Com'rs of City of Los Angeles, 18 
Cal.2d 427, 11 6 P.2d 37, 39. For example, cause of 
action might "accrue" on date that damage is sustained 
and not date when causes are set in motion which 
ultimately produce injury, City of Philadelphia v. Lie
berman, C.C.A.Pa., 112 F.2d 424, 428; on date of injury, 
Fredericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 
784, 787; when actual damage has resulted, National 
Lead Co. v. City of New York, C.C.A.N.Y., 43 F.2d 914, 
916; as soon as contract is breached, Wichita Nat. Bank 
v. United States Fidelity & Guaranty Co., Tex.Civ.App., 
147 S.W.2d 295, 297; in legal malpractice action, when 
the client knows or should know of attorneys error, 
Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131. 
The point in time at which a cause of action "accrues" is 
important for purposes of running of statute of limita
tions. 
Taxation. Income "accrues" to taxpayer when there 
arises to him a fixed or unconditional right to receive it. 
Franklin County Distilling Co. v. Commissioner of Inter
nal Revenue, C.C.A.6, 125 F.2d 800, 804, 805. But not 
unless there is a reasonable expectancy that the right 
will be converted into money or its equivalent. Swasti
ka Oil & Gas Co. v. Commissioner of Internal Revenue, 
C.C.A.6, 123 F.2d 382, 384. Where taxpayer makes 
returns on accrual basis, item "accrues" when all events 
occur which fix amount payable and determine liability 
of taxpayer. Hudson Motor Car Co. v. U. S., Ct.Cl., 3 
F.Supp. 834, 847. Tax "accrues" for deduction when all 
events have occurred which fix amount of tax and 
determine liability of taxpayer for it, although there has 
not yet been assessment or maturity. Elmhirst v. Dug
gan, D.C.N.Y., 14 F.Supp. 782, 784. 
Accrued alimony. Alimony which is due but not yet 
paid. 
Accrued compensation. Compensation earned but not 
yet paid. 
Accrued depreciation. Formerly called accumulated 
depreciation. An accumulation of charges made over a 
period of time for the replacement of a fixed asset. The 
portion of the useful service life which for tax and 
financial statement purposes has expired. State ex reI. 
City of St. Louis v. Public Service Commission, 341 Mo. 
920, 11 0 S.W.2d 749, 768. A loss which is not restored 
ACCUMULATED DEPRECIATION 
by current maintenance, and which is due to all factors 
involved causing ultimate retirement of the property, 
including wear, tear, decay, and inadequacy. Iowa-Illi
nois Gas & Electric Co. v. Iowa City, 255 Iowa 1341, 124 
N.W.2d 840, 845. See also Depreciation (Accumulated 
depreciation). 
Accrued dividend. A share of net earnings declared 
but not yet paid as a dividend. 
Accrued expense. Expense incurred but not yet billed 
for nor paid. 
Accrued income. Income which is earned but not yet 
billed and receivable. In re Schlinger's Will, 48 Misc.2d 
345, 438, 265 N.Y.S.2d 32, 35. 
Accrued interest. Interest that has been earned but is 
not yet received nor receivable. 
Accrued liability. An obligation or debt which is prop
erly chargeable in a given accounting period but which 
is not yet paid or payable. 
Accrued right. A matured cause of action, as legal 
authority to demand redress. See Accrue (Cause of 
action). 
Accrued salary. Compensation to employee which is 
incurred by an employer but not yet payable. 
Accrued taxes. Taxes which are properly incurred in a 
given accounting period but not yet paid or payable. 
Accruer (or accrual), clause of. An express clause, 
frequently occurring in the case of gifts by deed or will 
to persons as tenants in common, providing that upon 
the death of one or more of the beneficiaries his or their 
shares shail go to the survivor or survivors. The share 
of the decedent is then said to accrue to the others. 
Accruing /�kruwiIJ/. Inchoate; in process of maturing. 
That which will or may, at a future time, ripen into a 
vested right, an available demand, or an existing cause 
of action. Arising by way of increase or augmentation. 
Globe Indemnity Co. v. Bruce, C.C.A.Okl., 81 F.2d 143, 
153. 
Accounting. Allocation of income and expense, which 
has been earned or incurred but not yet collected or paid 
out, to the accounting period in which the income is 
earned or expense incurred. 
Accruing costs. Costs and expenses incurred after judg
ment. 
Accruing interest. Running or accumulating interest, 
as distinguished from accrued or matured interest. In
terest accumulating daily on the principal debt but not 
yet paid and payable. 
Accruing right. One that is increasing, enlarging, or 
augmenting. 
Acct. Abbreviation for "account", of such universal and 
immemorial use that the courts will take judicial notice 
of its meaning. 
Accumulated depreciation. See Accrued depreciation.

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ACCUMULATED DIVIDEND 
Accumulated dividend. Dividend due shareholder 
which has not been paid. See Accumulative dividends; 
Dividend (Cumulative). 
Accumulated earnings credit. A deduction allowed in 
arriving at accumulated taxable income for purposes of 
determining the accumulated earnings tax. See Accu
mulated earnings tax; Accumulated taxable income. 
Accumulated earnings tax. A special tax imposed on 
corporations that accumulate (rather than distribute via 
dividends) their earnings beyond the reasonable needs of 
the business. The accumulated earnings tax is imposed 
on accumulated taxable income in addition to the corpo
rate income tax. I.R.C. § 531 et seq. See also Accumu
lated taxable income; Excess profits tax. 
Accumulated legacy. Portion of distributable estate 
not yet paid to legatees or donees. 
Accumulated profits. Earned surplus or undivided 
profits. Flint v. Commissioner of Corporations and Tax
ation, 312 Mass. 204, 43 N.E.2d 789, 791, 792. Such 
include profits earned and invested. Commissioner of 
Corporations and Taxation v. Filoon, 310 Mass. 374, 38 
N.E.2d 693, 698, 700. 
Accumulated surplus. In statutes relative to the taxa
tion of corporations, this term refers to the fund which 
the company has in excess of its capital and liabilities. 
See Retained earnings. 
Accumulated taxable income. The base upon which 
the accumulated earnings tax is imposed. Basically, it 
is the taxable income of the corporation as adjusted for 
certain items (e.g., the Federal income tax, excess chari
table contributions, the dividends received deduction) 
less the dividends paid deduction and the accumulated 
earnings credit. I.R.C. § 535. See Accumulated earnings 
tax. 
Accumulations / �kyUmy�leysh�mz/. Increase by contin
uous or repeated additions, or, if taken literally, means 
either profit accruing on sale of principal assets, or 
increase derived from their investment, or both. Add
ing of interest or income of a fund to principal pursuant 
to provisions of a will or deed, preventing its being 
expended. When an executor or other trustee masses 
the rents, dividends, and other income which he re
ceives, treats it as a capital, invests it, makes a new 
capital of the income derived therefrom, invests that, 
and so on, he is said to accumulate the fund, and the 
capital and accrued income thus procured constitute 
accumulations. 
Accumulations, rule against. A rule rendering an 
accumulation of income beyond the period of perpetui
ties void. 
Accumulation trust. A trust in which the trustee is 
directed to accumulate income for a period of time 
before distribution. 
Accumulative. That which accumulates, or is heaped 
up; additional. Said of several things joined together, 
or of one thing added to another. 
22 
Accumulative dividends. Same as cumulative divi
dends; characteristic of preferred stockholders' agree
ment by which they receive their agreed dividends be
fore common stockholders. Dividends which accumu
late from year to year when not paid. See Dividend 
(Cumulative). 
Accumulative judgment. Where a person has already 
been convicted and sentenced, and a second or addition
al judgment is passed against him, the execution of 
which is postponed until the completion of the first 
sentence, such second judgment is said to be accumula
tive. See also Accumulative sentence. 
Accumulative legacy. A second, double or additional 
legacy; a legacy given in addition to another given by 
the same instrument, or by another instrument. See 
also Legacy. 
Accumulative sentence. A sentence, additional to oth
ers, imposed on a defendant who has been convicted 
upon an indictment containing several counts, each of 
such counts charging a distinct offense, or who is under 
conviction at the same time for several distinct offenses; 
one of such sentences to begin at the expiration of 
another. Consecutive sentences. See Sentence. 
Accusation / reky�zeysh�n/. A formal charge against a 
person, to the effect that he is guilty of a punishable 
offense, laid before a court or magistrate having jurisdic
tion to inquire into the alleged crime. See Accuse; 
Indictment; Information. 
Accusatory body. Body such as grand jury whose duty 
is to hear evidence to determine whether a person 
should be accused (charged) of a crime; to be distin
guished from a traverse or petit jury which is charged 
with duty of determining guilt or innocence. 
Accusatory instrument. A document in which an accu
sation of crime is set forth like an indictment, informa
tion or complaint. 
Accusatory part. The "accusatory part" of an indict
ment is that part where the offense is named. 
Accusatory pleading. An indictment or complaint in 
which a person is accused of crime and on which the 
government tries such person. Fed.R.Crim.P. 3. 
Accusatory procedure. System of American jurispru
dence in which the government accuses and bears the 
burden of proving the guilt of a person for a crime; to be 
distinguished from inquisitorial system. Rogers v. Rich
mond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. 
Accusatory stage. That stage of criminal proceedings 
at which right to counsel accrues to accused; such 
matures when officers have arrested accused, and offi
cers have undertaken process of interrogations that 
lends itself to eliciting incriminating statements. Peo
ple v. Bilderbach, 62 C.2d 757, 44 Cal.Rptr. 313, 315, 401 
P.2d 921. 
Accuse. To bring a formal charge against a person, to 
the effect that he is guilty of a crime or punishable 
offense, before a court or magistrate having jurisdiction

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23 
to inquire into the alleged crime. See also Indictment; 
Information. 
Accused. The generic name for the defendant in a 
criminal case. Person becomes "accused" within mean::
ing of guarantee of speedy trial only at point at which 
either formal indictment or information has been re
turned against him, or when he becomes subject to 
actual restraints on his liberty imposed by arrest, which
ever first occurs. State v. Almeida, 54 Haw. 443, 509 
P.2d 549, 55l. 
Accuser. The person by whom an accusation is made 
(e.g. State or United States in criminal proceedings). A 
person who signs and swears to charges, directs charges 
be brought, or has interest other than official in prosecu
tion of accused. U.S. v. Orsic, AFCMR, 8 M.J. 657, 658. 
Accustomed. Habitual; often used; synonymous with 
usual or customary. 
A ce 1 a sM. For this purpose. 
A cel jour I� sel zhur/. At this day. 
Acequia 1 �siykwiy�/. A ditch, channel, or canal, 
through which water, diverted from its natural course, 
is conducted, for use in irrigation or other purposes; 
public ditches. 
Ac etiam lrek eshiy�m/. (Lat. And also.) The introduc
tion of the statement of the real cause of action, used 
formerly in those cases where it was necessary to allege 
a fictitious cause of action to give the court jurisdiction, 
and also the real cause in compliance with the statutes. 
It is sometimes written acetiam. See Bill of Middlesex 
under Bill, definition 2. 
Achieve subject matter. The English equivalent for 
patentability. Mesta Mach. Co. v. Federal Machine & 
Welder Co., C.C.A.Pa., 110 F.2d 479, 480. 
Acid ratio test. Method of financial analysis involving 
ratio of cash and receivables to current liabilities. Sum 
of cash, marketable securities, and receivables divided 
by current liabilities. Also called the "quick ratio." 
Acknowledge. To own, avow, or admit; to confess; to 
recognize one's acts, and assume the responsibility 
therefor. 
Acknowledgment. To "acknowledge" is to admit, af
firm, declare, testify, avow, confess, or own as genuine. 
Favello v. Bank of America Nat. Trust & Savings Ass'n, 
24 Cal.App.2d 342, 74 P.2d 1057, 1058. Admission or 
affirmation of obligation or responsibility. Weyerhaeu
ser Timber Co. v. Marshall, C.C.A.Wash., 102 F.2d 78, 
8l. Most states have adopted the Uniform Acknowledg
ment Act. See also Receipt. 
Debt. The debtor's acknowledgment of the creditor's 
demand or right of action that will revive the enforce
ability of a debt barred by the statute of limitations. 
Part payment of obligation which tolls statute of limita
tions is a form of "acknowledgment of debt". In re 
Badger's Estate, 156 Kan. 734, 137 P.2d 198, 205. 
Instruments. Formal declaration before authorized offi
cial, by person who executed instrument, that it is his 
ACQUETS 
free act and deed. The certificate of the officer on such 
instrument that it has been so acknowledged. See also 
Attestation clause; Certificate of acknowledgment; Jurat; 
Notary public; Verification. 
Paternity. An avowal or admission that the child is 
one's own. Recognition of a parental relation, either by 
a written agreement, verbal declarations or statements, 
by the life, acts, and conduct of the parties, or any other 
satisfactory evidence that the relation was recognized 
and admitted. 
A.C.L.V. American Civil Liberties Union. 
A communi observantia non est recedendum ley 
k�myuwnay obz�rvrensh(iy)� non est riys�dend�m/. 
From common observance there should be no departure; 
there must be no departure from common usage. A 
maxim formerly applied to the practice of the courts, to 
the ancient and established forms of pleading and con
veyancing, and to professional usage generally. Lord 
Coke applies it to common professional opinion. 
A confectione 1 ey k�nfekshiyowniy I. From the making. 
A confectione prresentium 1 ey k�nfekshiyowniy 
pr�zensh(iy)�m/. From the making of the indentures. 
A consiliis 1 ey k�nsiliy�s/. (Lat. consilium, advice.) Of 
counsel; a counsellor. The term is used in the civil law 
by some writers instead of a res pons is. 
A contrario sensu 1 ey k�ntreriyow sensyuw I. On the 
other hand; in the opposite sense. 
Acquainted. Having personal, familiar, knowledge of a 
person, event, or thing. "Acquaintance" expresses less 
than familiarity; familiarity less than intimacy. Ac
quaintance springs from occasional intercourse, famil
iarity from daily intercourse, intimacy from unreserved 
intercourse. Atkins Corporation v. Tourny, 6 Cal.2d 
206, 57 P.2d 480, 483. To be "personally acquainted 
with," and to "know personally," are equivalent terms, 
Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. When used 
with reference to a paper to which a certificate or 
affidavit is attached, it indicates a substantial knowl
edge of the subject-matter thereof. 
Acquereur lrek�r�r/. In French and Canadian law, one 
who acquires title, particularly to immovable property, 
by purchase. 
Acquest I�kwest/. An estate acquired newly, or by 
purchase. 
Acquets lakey/. In the civil law, property which has 
been acquired by purchase, gift, or otherwise than by 
succession. Immovable property which has been ac
quired otherwise than by succession. Profits or gains of 
property, as between husband and wife. Civil Code La. 
art. 2338. The profits of all the effects of which the 
husband has the administration and enjoyment, either 
of right or in fact, of the produce of the joint industry of 
both husband and wife, and of the estates which they 
may acquire during the marriage, either by donations 
made jointly to them both, or by purchase, or in any 
other similar way, even though the purchase be only in

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ACQUETS 
the name of one of the two, and not of both. See 
Communi ty property; Conquets. 
Acquiesce h:ekwiyes/. To give an implied consent to a 
transaction, to the accrual of a right, or to any act, by 
one's mere silence, or without express assent or ac
knowledgment. 
Acquiescence / rekwiyes�ns/. Conduct recognizing the 
existence of a transaction, and intended, in some extent 
at least, to carry the transaction, or permit it to be 
carried, into effect. It is some act, not deliberately 
intended to ratify a former transaction known to be 
voidable, but recognizing the transaction as existing, 
and intended, in some extent at least, to carry it into 
effect, and to obtain or claim the benefits resulting from 
it, and thus differs from "confirmation," which implies a 
deliberate act, intended to renew and ratify a transac
tion known to be voidable. De Boe v. Prentice Packing 
& Storage Co., 172 Wash. 514, 20 P.2d 1107, 111 0. 
Passive compliance or satisfaction; distinguished from 
avowed consent on the one hand, and, on the other, from 
opposition or open discontent. Paul v. Western Distrib
uting Co., 142 Kan. 816, 52 P.2d 379, 387. Conduct from 
which assent may be reasonably inferred. Frank v. 
Wilson & Co., 24 Del.Ch. 237, 9 A.2d 82, 86. Equivalent 
to assent inferred from silence with knowledge or from 
encouragement and presupposes knowledge and assent. 
Imports tacit consent, concurrence, acceptance or assent. 
Natural Soda Products Co. v. City of Los Angeles, Cal. 
App., 132 P.2d 553, 563. A silent appearance of consent. 
Failure to make any objections. Submission to an act of 
which one had knowledge. Exists where a person knows 
or ought to know that he is entitled to enforce his right 
or to impeach a transaction, and neglects to do so for 
such a length of time as would imply that he intended to 
waive or abandon his right. Yench v. Stockmar, C.A. 
Colo., 483 F.2d 820, 834. 
It is to be distinguished from avowed consent, on the 
one hand, and from open discontent or opposition, on 
the other. 
Acquiescence and laches are cognate but not equivalent 
terms. The former is a submission to, or resting satis
fied with, an existing state of things, while laches im
plies a neglect to do that which the party ought to do for 
his own benefit or protection. Hence laches may be 
evidence of acquiescence. Laches imports a merely pas
sive assent, while acquiescence implies active assent. In 
re Wilbur's Estate, 334 Pa. 45, 5 A.2d 325, 331. "Acqui
escence" relates to inaction during performance of an 
act while "laches" relates to delay after act is done. 
See also Admission; Confession; Estoppel; Nonac
quiescence; Ratification. 
Administrative agencies. An administrative agency's 
policy of agreeing to be bound by judicial precedent 
which is contrary to the agency's interpretation of its 
organic statute. Compare Nonacquiescence. 
Acquiescence, estoppel by. Acquiescence is a species 
of estoppel. An estoppel arises where party aware of his 
rights sees other party acting upon mistaken notion of 
his rights. Injury accruing from one's acquiescence in 
24 
another's action to his prejudice creates "estoppel". Le
bold v. Inland Steel Co., C.C.A.Ill., 125 F.2d 369, 375. 
Passive conduct on the part of one who has knowledge of 
the facts may be basis of estoppel. Winslow v. Burns, 47 
N.M. 29, 132 P.2d 1048, 1050. It must appear that party 
to be estopped was bound in equity and good conscience 
to speak and that party claiming estoppel relied upon 
acquiescence and was misled thereby to change his posi
tion to his prejudice. Sherlock v. Greaves, 106 Mont. 
206, 76 P.2d 87, 91. See also Estoppel. 
Acquietandis plegiis / �kway�trend�s pliyjiy�s/. A writ 
of justices, formerly lying for the surety against a credi
tor who refuses to acquit him after the debt has been 
satisfied. 
Acquire. To gain by any means, usually by one's own 
exertions; to get as one's own; to obtain by search, 
endeavor, investment, practice, or purchase; receive or 
gain in whatever manner; come to have. In law of 
contracts and of descents, to become owner of property; 
to make property one's own. To gain ownership of. 
Commissioner of Insurance v. Broad Street Mut. Casual
ty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 684. The act 
of getting or obtaining something which may be already 
in existence, or may be brought into existence through 
means employed to acquire it. Ronnow v. City of Las 
Vegas, 57 Nev. 332, 65 P.2d 133, 140. Sometimes used 
in the sens� of "procure." It does not necessarily mean 
that title has passed. Includes taking by devise. U. S. 
v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 70, 68 L.Ed. 240. 
See also Accession; Acquisition; Purchase. 
Acquired rights. Those which one does not naturally 
enjoy, but which are owing to his or her own procure
ment, as sovereignty, or the right of commanding, or the 
right of property. 
Acquired surplus. Surplus arising from changes of the 
capital structure of one or more businesses; e.g. from 
the purchase of one business by another business. 
Acquisition / rekw�zish�n/ . The act of becoming the 
owner of certain property; the act by which one ac
quires or procures the property in anything. State ex 
reI. Fisher v. Sherman, 135 Ohio St. 458, 21 N.E.2d 467, 
470. Used also of the thing acquired. Taking with, or 
against, consent. Scribner v. Wikstrom, 93 N.H. 17, 34 
A.2d 658, 660. Term refers especially to a material 
possession obtained by any means. Jones v. State, 126 
Tex.Cr.R. 469, 72 S.W.2d 260, 263. 
See Accession; Acquire; Purchase; Tender offer. 
Derivative acquisitions are those which are procured 
from others. Goods and chattels may change owners by 
act of law in the cases of forfeiture, succession, mar
riage, judgment, insolvency, and intestacy; or by act of 
the parties, as by gift or sale. 
Original acquisition is that by which a man secures a 
property in a thing which is not at the time he acquires 
it, and in its then existing condition, the property of any 
other individual. It may result from occupancy; acces
sion; intellectual labor-namely, for inventions, which 
are secured by patent rights; and for the authorship of

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25 
books, maps, and charts, which is protected by copy
rights. 
An acquisition may result from the act of the party 
himself, or those who are in his power acting for him, as 
his children while minors. 
Acquisitive offenses. A generic term to describe all 
forms of larceny and offenses against the title or posses
sion of property. 
Acquit / �kwit/. To set free, release or discharge as from 
an obligation, burden or accusation. To absolve one 
from an obligation or a liability; or to legally certify the 
innocence of one charged with crime. See also Acquittal. 
Acquitment. See Absolution. 
Acquittal / �kwit�l/. Contracts. A release, absolution, 
or discharge from an obligation, liability, or engage
ment. 
Criminal law. The legal and formal certification of the 
innocence of a person who has been charged with crime; 
a deliverance or setting free a person from a charge of 
guilt; finding of not guilty. Also, one legally acquitted 
by a judgment rendered otherwise than in pursuance of 
a verdict, as where he is discharged by a magistrate 
because of the insufficiency of the evidence, or the 
indictment is dismissed by the court or a nol. pros. 
entered. Or, it may occur even though the question of 
guilt or innocence has never been submitted to a jury, as 
where a defendant, having been held under an indict
ment or information, is discharged because not brought 
to trial within the time provided by statute. 
Acquittals in fact are those which take place when the 
jury, upon trial, finds a verdict of not guilty. 
Acquittals in law are those which take place by mere 
operation of law; as where a man has been charged 
merely as an accessory, and the principal has been 
acquitted. 
See Autrefois acquit; Jeopardy; Nolle prosequi; Verdict. 
Feudal law. The obligation on the part of a mesne lord 
to protect his tenant from any claims, entries or moles
tations by lords paramount arising out of the services 
due to them by the mesne lord. 
Acquittance / �kwit�ns/. A written discharge, whereby 
one is freed from an obligation to pay money or perform 
a duty. This word, though perhaps not strictly speaking 
synonymous with "receipt," includes it. A receipt is one 
form of an acquittance; a discharge is another. A 
receipt in full is an acquittance, and a receipt for a part 
of a demand or obligation is an acquittance pro tanto. 
Acquitted / �kwit�d/ . Released; absolved; purged of an 
accusation. Judicially discharged from accusation; re
leased from debt, etc. Includes both civil and criminal 
prosecutions. See Acquittal. 
Acre. A quantity of land containing 160 square rods, 
4,840 square yards, or 43,560 square feet of land, in 
whatever shape. See Land measure. 
ACT 
Net acre. The amount of actual acreage that may be 
used for building lots after installation of streets, side
walks, etc. 
Acre foot. 325,850 gallons, or the amount of water 
which will cover one acre one foot in depth. 
Acre right. Formerly the share of a citizen of a New 
England town in the common lands. The value of the 
acre right was a fixed quantity in each town, but varied 
in different towns. A 10-acre lot or right in a certain 
town was equivalent to 113 acres of upland and 12 acres 
of meadow, and a certain exact proportion was main
tained between the acre right and salable lands. 
Across. From side to side. Transverse to the length of. 
It may mean "over," or "upon and along," or "upon," or 
"within". 
ACRS. See Accelerated Cost Recovery System. 
Act, n. Denotes external manifestation of actor's wilL 
Restatement, Second, Torts § 2. Expression of will or 
purpose, carrying idea of performance; primarily that 
which is done or doing; exercise of power, or effect of 
which power exerted is cause; a performance; a deed. 
In its most general sense, this noun signifies something 
done voluntarily by a person; the exercise of an individ
ual's power; an effect produced in the external world by 
an exercise of the power of a person objectively, prompt
ed by intention, and proximately caused by a motion of 
the will. In a more technical sense, it means something 
done voluntarily by a person, and of such a nature that 
certain legal consequences attach to it. Thus a grantor 
acknowledges the conveyance to be his "act and deed," 
the terms being synonymous. It may denote something 
done by an individual, as a private citizen, or as an 
officer; or by a body of men, as a legislature, a council, 
or a court of justice; including not merely physical acts, 
but also decrees, edicts, laws, judgments, resolves, 
awards, and determinations. Some general laws made 
by the Congress of the United States are styled joint 
resolutions, and these have the same force and effect as 
those styled acts. 
Acts under private signature are those which have been 
made by private individuals under their hands. 
Criminal act. External manifestation of one's will 
which is prerequisite to criminal responsibility. There 
can be no crime without some act, affirmative or nega
tive. An omission or failure to act may constitute an 
act for purpose of criminal law. 
Legislative act. An alternative name for statutory law. 
A bill which has been enacted by legislature into law. 
When introduced into the first house of the legislature, 
a piece of proposed legislation is known as a bill. When 
passed to the next house, it may then be referred to as 
an act. After enactment the terms "law" and "act" may 
be used interchangeably. An act has the same legisla
tive force as a joint resolution but is technically distin
guishable, being of a different form and introduced with 
the words "Be it enacted" instead of "Be it resolved." 
Acts are either public or private. Public acts (also 
called general acts, or general statutes, or statutes at

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ACT 
large) are those which relate to the community general
ly, or establish a universal rule for the governance of 
the whole body politic. Private acts (formerly called 
special), are those which relate either to particular per
sons (personal acts) or to particular places (local acts), or 
which operate only upon specified individuals or their 
private concerns. Unity v. Burrage, 103 U.S. 447, 454, 
26 L.Ed. 465. Public acts are those which concern the 
whole community and of which courts of law are bound 
to take judicial notice. 
A "special" or "private" act is one operating only on 
particular persons and private concerns. A "local act" 
is one applicable oniy to a particular part of the legisla
tive jurisdiction. 
See also Governmental act; Legislation; Legislative act; 
Statute. 
Private acts are those made by private persons as reg
isters in relation to their receipts and expenditures, 
schedules, acquittances, and the like. 
Public acts are those which have a public authority, and 
which have been made before public officers, are autho
rized by a public seal, have been made public by the 
authority of a magistrate, or which have been extracted 
and been properly authenticated from public records. 
Acta diurna lrekt;} day;}rn;}/. Lat. In the Roman law, 
daily acts or chronicles; the public registers or journals 
of the daily proceedings of the senate, assemblies of the 
people, courts of justice, etc. Supposed to have resem
bled a modern newspaper. 
Acta exteriora indicant interiora secreta I rekt;} 
ekstiriyor;} ind;}krent intiriyor;} s;}kriyt;}I . External acts 
indicate undisclosed thoughts. 
Acta in uno judicio non probant in alio nisi inter 
easdem personas lrekt;} in yuwnow juwdishiyow non 
prowbrent in eyliyow naysay int;}r iyeysd;}m p;}rsown;}sl. 
Things done in one action cannot be taken as evidence 
in another, unless it be between the same parties. 
Acta publica lrekt;} p;}wbbk;}/. Lat. Things of general 
knowledge and concern; matters transacted before cer
tain public officers. 
Acte lrekt/aktl. In French law, denotes a document, or 
formal, solemn writing, embodying a legal attestation 
that something has been done, corresponding to one 
sense or use of the English word "act." 
Actes de naissance are the certificates of birth, and must 
contain the day, hour, and place of birth, together with 
the sex and intended christian name of the child, and 
the names of the parents and of the witnesses. Actes de 
manage are the marriage certificates, and contain 
names, professions, ages, and places of birth and domi
cile of the two persons marrying, and of their parents; 
also the consent of these latter, and the mutual agree
ments of the intended husband and wife to take each 
other for better and worse, together with the usual 
attestations. Actes de deces are the certificates of death, 
which are required to be drawn up before any one may 
be buried. Les actes de I 'etat civil are public documents. 
26 
Acte authentique I akt otontiyk/. A deed executed with 
certain prescribed formalities, in the presence of a nota
ry, mayor, greffier, huissier, or other functionary quali
fied to act in the place in which it is drawn up. 
Acte de francisation I akt d;} frank;}zasyown/. The cer
tificate of registration of a ship, by virtue of which its 
French nationality is established. 
Acte d'heritier I akt deyr;}tyey I. Act of inheritance. 
Any action or fact on the part of an heir which mani
fests his intention to accept the succession; the accept
ance may be express or tacit. 
Acte extrajudiciaire I rekt etr;}juwdisksiyer I. A doc
ument served by a huiss ier, at the demand of one party 
upon another party, without legal proceedings. 
Acting. Doing duty for another. Officiating or holding 
a temporary rank or position or performing services 
temporarily; as, an acting captain, manager, president. 
Pellecchia v. Mattia, 121 N.J.L. 21, 1 A.2d 28. Perform
ing; operating. 
Acting executor. One who assumes to act as executor for 
a decedent, not being the executor legally appointed or 
the executor in fact. 
Acting officer. Term is used to designate, not an ap
pointed incumbent, but merely a locum tenens, who is 
performing the duties of an office to which he himself 
does not claim title. 
Acting within scope of employment. See Scope of 
employment. 
Act in pais lrekt in pey(s)/. An act done out of court, 
and not a matter of record. A deed or an assurance 
transacted between two or more private persons in the 
country, that is, according to the old common law, upon 
the very spot to be transferred, is matter in pais. 
Actio lrekshiyow/. Lat. In the civil law, an action or 
suit; a right or cause of action. Term means both the 
proceeding to enforce a right in a court and the right 
itself which is sought to be enforced. 
Actio ad exhibendum I rekshiyow red egzibend;}m/. An 
action for the purpose of compelling a defendant to 
exhibit a thing or title in his power. It was preparatory 
to another action, which was always a real action in the 
sense of the Roman law; that is, for the recovery of a 
thing, whether it was movable or immovable. 
Actio restimatoria; actio quanti minoris I rekshiyow 
iyst;}m;}toriy;} rekshiyow kwontay m;}nor;}s/. In the 
criminal law, two names of an action which lay in behalf 
of a buyer to reduce the contract price proportionately 
to the defects of the object, not to cancel the sale; the 
judex had power, however, to cancel the sale. 
Actio arbitraria lrekshiyow arb;}treriy;}/. Action de
pending on the discretion of the judge. In this, unless 
defendant would make amends to plaintiff as dictated by 
the judge in his discretion, he was liable to be con
demned. 
Actio bonre fidei I rekshiyow bowniy faydiyay I. An ac
tion of good faith. A class of actions in which the judge

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27 
might at the trial ex officio take into account any 
equitable circumstances that were presented to him 
affecting either of the parties to the action. 
Actio calumnire I rekshiyow k�l�mniyiy I. An action to 
restrain defendant from prosecuting a groundless pro
ceeding or trumped-up charge against plaintiff. An 
action for malicious prosecution. 
Actio civilis lrekshiyow siv�l�s/. In the common law, a 
civil action, as distinguished from a criminal action. 
Actio commodati lrekshiyow kom�deytay/. Inclusion of 
several actions appropriate to enforce the obligations of 
a borrower or a lender. 
Actio commodati contraria I rekshiyow kom�deytay 
k�ntreriy�/. An action by the borrower against the 
lender, to compel the execution of the contract. 
Actio commodati directa I rekshiyow kom�deytay 
d�rekt�/. An action by a lender against a borrower, the 
principal object of which is to obtain a restitution of the 
thing lent. 
Actio communi dividundo I rekshiyow k�myuwnay 
div�d�ndow I. An action to procure a judicial division of 
joint property. It was analogous in its object to proceed
ings for partition in modern law. 
Actio condictio indebitati I rekshiyow k�ndishiyow 
indeb�teytay/. An action by which the plaintiff recov
ers the amount of a sum of money or other thing he paid 
by mistake. 
Actio confessoria lrekshiyow konf�s6riy�/. An affirma
tive petitory action for the recognition and enforcement 
of a servitude. So called because based on plaintiffs 
affirmative allegation of a right in defendant's land. 
Distinguished from an actio negatoria, which was 
brought to repel a claim of defendant to a servitude in 
plaintiffs land. 
Actio contrario lrekshiyow k�ntreriyow/. Counter ac
tion or cross action. 
Actio criminalis lrekshiyow krim�neyl�s/. Criminal ac
tion. 
Actio damni injuria lrekshiyow dremnay injuriy�/. The 
name of a general class of actions for damages, including 
many species of suits for losses caused by wrongful or 
negligent acts. The term is about equivalent to our 
"action for damag es." 
Actio de dolo malo lrekshiyow diy d6wlow mrelow/. An 
action of fraud; an action which lay for a defrauded 
person against the defrauder and his heirs, who had 
been enriched by the fraud, to obtain the restitution of 
the thing of which he had been fraudulently deprived, 
with all its accessions (cum omni causa;) or, where this 
was not practicable, for compensation in damages. 
Actio de peculio lrekshiyow diy p�kyUwliyow/. An ac
tion concerning or against the peculium, or separate 
property of a party. 
Actio de pecunia constituta I rekshiyow diy p�kyuwniy� 
konst�tyUwd�/. An action for money engaged to be 
paid; an action which lay against any person who had 
ACTIO HONORARIA 
engaged to pay money for himself, or for another with
out any formal stipulation. 
Actio depositi contraria I rekshiyow d�p6z�tay 
k�ntreriy�/. An action which the depositary has 
against the depositor, to compel him to fulfil his engage
ment towards him. 
Actio depositi directa lrekshiyow d�p6z�tay d�rekt�/. 
An action which is brought by the depositor against the 
depositary, in order to get back the thing deposited. 
Actio de tigno juncto I rekshiyow diy tignow j�1Jktow I. 
An action by the owner of material built by another into 
his building. 
Actio directa I rekshiyow d�rekt�/. A direct action; an 
action founded on strict law, and conducted according to 
fixed forms; an action founded on certain legal obli
gations which from their origin were accurately defined 
and recognized as actionable. See Actio utilis. 
Actio empti lrekshiyow em(p)tay/. An action employed 
in behalf of a buyer to compel a seller to perform his 
obligations or pay compensation; also to enforce any 
special agreements by him, embodied in a contract of 
sale. See Specific performance. 
Actio ex conducto I rekshiyow eks k�nd�ktow I. An ac
tion which the bailor of a thing for hire may bring 
against the bailee, in order to compel him to redeliver 
the thing hired. 
Actio ex contractu lrekshiyow eks k�ntrrektyuw/. In 
the civil and common law, an action of contract; an 
action arising out of, or founded on, contract. 3 Bl. 
Comm. 11 7. 
Actio ex delicto I rekshiyow eks d�liktow I. In the civil 
and common law, an action of tort; an action arising out 
of fault, misconduct, or malf easance. 3 Bl.Comm. 11 7. 
Ex maleficio is the more common expression of the civil 
law; which is adopted by Bracton. 
Actio exercitoria lrekshiyow egz;}rs�t6riy�/. An action 
against the exercitor or employer of a vessel. 
Actio ex locato lrekshiyow eks lowketow/. An action 
upon letting; an action which the person who let a thing 
for hire to another might have against the hirer. 
Actio ex stipulatu I rekshiyow eks stipy�leytyuw I. An 
action brought to enforce a stipulation. 
Actio familire erciscundre lrekshiyow f�miliyiy ;}rsi
sk�ndiy I. An action for the partition of an inheritance. 
Actio furti I rekshiyow f�rtay I. An action of theft; an 
action founded upon theft. This could be brought only 
for the penalty attached to the offense, and not to 
recover the thing stolen, for which other actions were 
provided. An appeal of larceny. The old process by 
which a thief can be pursued and the goods vindicated. 
Actio honoraria I rekshiyow (h)on�reriy�/. An honor
ary, or prretorian action. Actiones honorarire are those 
forms of remedies which were gradually introduced by 
the prretors and rediles, by virtue of their equitable 
powers, in order to prevent the failure of justice which 
too often resulted from the employment of the actiones

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ACTIO HONORARIA 
civiles. These were found so beneficial in practice that 
they eventually supplanted the old remedies, of which in 
the time of Justinian hardly a trace remained. 
Actio in factum I rekshiyow in frekt::lm/. An action 
adapted to the particular case, having an analogy to 
some actio in jus, the latter being founded on some 
subsisting acknowledged law. The origin of these ac
tions is similar to that of actions on the case at common 
law. 
Actio in personam I rekshiyow in p::lrsown::lm/. In the 
civil law, an action against the person, founded on a 
personal liability; an action seeking redress for the 
violation of a jus in personam or right available against 
a particular individual. See In personam. 
Actio in rem I rekshiyow in rem /. In the civil and 
common law, an action for a thing; an action for the 
recovery of a thing possessed by another. An action for 
the enforcement of a right (or for redress for its inva
sion) which was originally available against all the 
world, and not in any special sense against the individu
al sued, until he violated it. See In rem. 
Actio judicati I rekshiyow juwd::lkeytay I. In the civil 
law, an action instituted after four months had elapsed 
after the rendition of judgment, in which the judge 
issued his warrant to seize, first, the movables, which 
were sold within eight days afterwards; and then the 
immovables, which were delivered in pledge to the credi
tors, or put under the care of a curator, and if, at the 
end of two months, the debt was not paid, the land was 
sold. 
Actio legis aquillre I rekshiyow liyj::ls ::Ikwiliyiy I. An 
action under the Aquilian law; an action to recover 
damages for maliciously or injuriously killing or wound
ing the slave or beast of another, or injuring in any way 
a thing belonging to another. Otherwise called damni 
injurire actio. 
Actio mandati lrekshiyow mrendeytay/. In the civil law, 
term included actions to enforce contracts of mandate or 
obligations arising out of them. 
Actio mixta I rekshiyow mikst::l/. A mixed action, an 
action brought for the recovery of a thing, or compensa
tion for damages, and also for the payment of a penalty; 
partaking of the nature both of an actio in rem and in 
personam. 
Action. Conduct; behavior; something done; the condi
tion of acting; an act or series of acts. 
Term in its usual legal sense means a lawsuit brought 
in a court; a formal complaint within the jurisdiction of 
a court of law. Pathman Const. Co. v. Knox County 
Hospital Ass'n, Ind.App., 326 N.E.2d 844, 853. The legal 
and formal demand of one's right from another person 
or party made and insisted on in a court of justice. An 
ordinary proceeding in a court of justice by which one 
party prosecutes another for the enforcement or protec
tion of a right, the redress or prevention of a wrong, or 
the punishment of a public offense. It includes all the 
formal proceedings in a court of justice attendant upon 
the demand of a right made by one person of another in 
28 
such court, including an adjudication upon the right and 
its enforcement or denial by the court. 
See also Case (Cases and Controversies); Cause of 
action; Civil action; Collusive action; Counterclaim; Con
troversy; Cross-claim; Direct action; Forms of action; 
Penal action; Petitory action; Plenary action; Proceeding; 
Suit; Transitory action. 
Merger of law and equity. In the federal courts, and 
most state courts, there is only one form of action-civil 
action-which embraces all actions formerly denom
inated suits in equity and actions at law. While there 
has been a merger of law and equity for procedural 
purposes, substantive principles of equity still govern. 
Fed.R.Civ.P. 2. 
Types of action. Such term was formerly used to de
scribe action for damages as distinguished from suit in 
equity for equitable relief. This distinction however has 
been abolished under Fed. Rules of Civil Procedure and 
in those states which have adopted court rules tracking 
the Federal Rules. Fed.R.Civ.P. 2. 
Action for death. See Wrongful death action. 
Action in equity. Action in which person seeks eq
uitable relief as distinguished from damages; e.g. in
junction or specific performance of real estate agree
ment. Term has been abolished by Fed. Rules of Civil 
Procedure (Rule 2) in favor of single form of action
civil action-which embraces both law and equity ac
tions. 
Action in personam. See In personam. 
Action in rem. See In rem. 
Action on account. An action of assumpsit or debt for 
recovery of money only for services performed, proper
ty sold and delivered, money loaned, or damages for the 
non-performance of simple contracts, express or im
plied, when the rights of the parties will be adequately 
conserved by the payment and receipt of money. 
Northwest Foundry & Furnace Co. v. Willamette Mfg. 
& Supply Co., Inc., 268 Or. 343, 521 P.2d 545, 549. 
Action quasi in rem. See In rem. 
Civil actions are such as lie in behalf of persons to 
enforce their rights or obtain redress of wrongs in their 
relation to individuals. Fed.R.Civ.P. 2. 
Class actions. See Class or representative action; Deriv
ative action. 
Common law actions are such as will lie, on the partic
ular facts, at common law, without the aid of a statute. 
Actions are called, in common-law practice, ex contrac
tu when they arise out of a contract, and ex delicto 
when they arise out of a tort. If a cause of action 
arises from a breach of promise, the action is "ex 
contractu", and, if it arises from breach of duty grow
ing out of contract, it is "ex delicto". 
Criminal actions are such as are instituted by the 
sovereign power (i.e. government), for the purpose of 
punishing or preventing offenses against the public. 
Local action. See Local actions. 
Mixed actions partake of twofold nature of real and 
personal actions, having for their object the demand

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29 
and restitution of real property and also personal dam
ages for a wrong sustained. In the civil law, an action 
in which some specific thing was demanded, and also 
some personal obligation claimed to be performed; or, 
in other words, an action which proceeded both in rem 
and in personam. 
Penal actions are such as are brought, either by feder
al, state, or local authorities or by an individual under 
permission of a statute, to enforce a penalty imposed by 
law for the commission of a prohibited act. See Crimi
nal. 
Personal action. In civil law, an action in personam 
seeks to enforce an obligation imposed on the defen
dant by his contract or delict; that is, it is the conten
tion that he is bound to transfer some dominion or to 
perform some service or to repair some loss. In com
mon law, an action brought for the recovery of some 
debt or for damages for some personal injury, in contra
distinction to the old real actions, which related to real 
property only. An action which can be brought only by 
the person himself who is injured, and not by his 
representatives. See In personam. 
Popular actions, in English usage, were those actions 
which were given upon the breach of a penal statute, 
and which any man that will may sue on account of the 
king and himself, as the statute allowed and the case 
required. Because the action was not given to one 
especially, but generally to any that would prosecute, it 
was called "action popular;" and, from the words used 
in the process (qui tam pro domino rege sequitur quam 
pro se ipso, who sues as well for the king as for himself) 
it was called a qui tam action. 
Real actions. At common law, one brought for the 
specific recovery of lands, tenements, or hereditaments. 
They are droitural when they are based upon the right 
of property, and possessory when based upon the right 
of possession. They are either writs of right; writs of 
entry upon disseisin (which lie in the per, the per et 
cui, or the post), intrusion, or alienation; writs ances
tral possessory, as mort d'ancestor, aiel, besaiel, cossi
nage, or nuper obiit. The former class was divided into 
droitural, founded upon demandant's own seisin, and 
ancestral droitural upon the demandant's claim in re
spect of a mere right descended to him from an ances
tor. Possessory actions were divided in the same 
way-as to the demandant's own seisin and as to that 
of his ancestor. Among the civilians, real actions, 
otherwise called "vindications," were those in which a 
man demanded something that was his own. They 
were founded on dominion, or jus in reo The real 
actions of the Roman law were not, like the real actions 
of the common law, confined to real estate, but they 
included personal, as well as real, property. See In rem. 
Statutory actions are such as can only be based upon 
the particular statutes creating them. Contrast Com
mon law actions, above. 
Transitory actions are those founded upon a cause of 
action not necessarily referring to or arising in any 
particular locality. Their characteristic feature is that 
the right of action follows the person of the defendant. 
ACTIONABLE PER QUOD 
Actions are "transitory" when the transactions relied 
on might have taken place anywhere, and are "local" 
when they could not occur except in some particular 
place; the distinction being in the nature of the subject 
of the injury, and not in the means used or the place at 
which the cause of action arises. The test of whether 
an action is local or transitory is whether the injury is 
done to a subject-matter which, in its nature, could not 
arise beyond the locality of its situation, in contradis
tinction to the subject causing the injury. Actions 
triable where defendant resides are termed "trans
itory" and those triable where the subject-matter is 
situated are termed "local." 
Actionable. That for which an action will lie, furnish
ing legal ground for an action. See Cause of action; 
Justiciable controversy. 
Actionable fraud. Deception practiced in order to in
duce another to part with property or surrender some 
legal right. A false representation made with an inten
tion to deceive; such may be committed by stating what 
is known to be false or by professing knowledge of the 
truth of a statement which is false, but in either case, 
the essential ingredient is a falsehood uttered with in
tent to deceive. To constitute "actionable fraud," it 
must appear that defendant made a material represen
tation; that it was false; that when he made it he knew 
it was false, or made it recklessly without any knowl
edge of its truth and as a positive assertion; that he 
made it with intention that it should be acted on by 
plaintiff; that plaintiff acted in reliance on it; and that 
plaintiff thereby suffered injury. Vertes V. GAC Proper
ties, Inc., D.C.Fla., 337 F.Supp. 256, 266. Essential ele
ments are representation, falsity, scienter, deception, 
reliance and injury. See Fraud. 
Actionable misrepresentation. A false statement re
specting a fact material to the contract and which is 
influential in procuring it. See Fraud; Misrepresenta
tion. 
Actionable negligence. The breach or nonperformance 
of a legal duty, through neglect or carelessness, result
ing in damage or injury to another. It is failure of duty, 
omission of something which ought to have been done, 
or doing of something which ought not to have been 
done, or which reasonable man, guided by considerations 
which ordinarily regulate conduct of human affairs, 
would or would not do. Essential elements are failure 
to exercise due care, injury, or damage, and proximate 
cause. See Negligence. 
Actionable nuisance. Anything wrongfully done or 
permitted which injures or annoys another in the enjoy
ment of his legal rights. Miller V. City of Dayton, 70 
Ohio App. 173, 41 N.E.2d 728, 730. Anything injurious 
to health, or indecent, or offensive to the senses, or an 
obstruction to the free use of property so as to interfere 
with the comfortable enjoyment of life or property. See 
Nuisance. 
Actionable per quod. Words actionable only on allega
tion and proof of special damage. Knapp V. Post Print
ing & Publishing Co., 111 Colo. 492, 144 P.2d 981, 984.

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ACTIONABLE PER QUOD 
Words not actionable per se upon their face, but only in 
consequence of extrinsic facts showing circumstances 
under which they were said or the damages resulting to 
slandered party therefrom. Not injurious on their face 
in their usual and natural signification, but only so in 
consequence of extrinsic facts and requiring innuendo. 
See Libelous per quod. 
Actionable per see Words in themselves libelous or 
slanderous. Knapp v. Post Printing & Publishing Co., 
111 Colo. 492, 144 P.2d 981, 984. Words which law 
presumes must actually, proximately and necessarily 
damage defendant for which general damages are recov
erable and whose injurious character is a fact of com
mon notoriety, established by the general consent of 
men, necessarily importing damage. Actions based on 
such words require no proof of damages. Words action
able per se include imputation of crime, a loathsome 
disease, unchastity, or words affecting plaintiffs busi
ness, trade, profession, office or calling. See Libelous per 
se. 
Actionable tort. A tort for which a cause of action 
exists. To constitute an "actionable tort," there must be 
a legal duty, imposed by statute or otherwise, owing by 
defendant to the one injured, and in the absence of such 
duty damage caused is "injury without wrong" or "dam
num absque injuria." Coleman v. California Yearly 
Meeting of Friends Church, 27 Cal.App.2d 579, 81 P.2d 
469, 470. See Tort. 
Actionable words. In law of libel and slander, such 
words as naturally imply damage. See Libel; Slander. 
Actionable wrong. A tort committed when a respon
sible person has neglected to use a reasonable degree of 
care for protection of another person from such injury as 
under existing circumstances should reasonably have 
been foreseen as a proximate consequence of that negli
gence. 
Actionare lreksh(iy):meriy/. L. Lat. (From actio, an 
action.) To bring an action; to prosecute; or sue. 
Actionary lreksh:m(a)riy/. A foreign commercial term 
for the proprietor of an action or share of a public 
company's stock; a stockholder. 
Actio negatoria (or negativa) I rekshiyow negatoriya 
I" negatl:lyva I . An action brought to repel a claim of the 
defendant to a servitude in the plaintiffs land. See 
Actio confessoria. 
Actio negotiorum gestorum I rekshiyow nagowshiyoram 
jestoram/. Included actions between principal and 
agent and other parties to an engagement, whereby one 
person undertook the transaction of business for anoth
er. 
Actiones legis I rekshiyowniyz liyjas/. In the Roman 
law, legal or lawful action; actions of or at law (legitmre 
actiones). 
Actiones nominatae I rekshiyowniyz nomaneytiy I. (Lat. 
named actions). In the Ellglish chancery, writs for 
which there were precedents. The statute of Westmin-
30 
ster, 2, c. 24, gave chancery authority to form new writs 
in consimili casu; hence the action on the case. 
Action ex contractu I rekshan eks kantrrektyuw I. An 
action for breach of promise set forth in a contract, 
express or implied. McCullough v. The American Work
men, 200 S.C. 84, 20 S.E.2d 640. 
Action ex delicto I rekshan eks daliktow I. An action 
arising from a breach of duty growing out of contract. 
Action for accounting. Action in equity based on inad
equacy of legal remedy and particularly applicable to 
mutual and complicated accounts and where confiden
tial or fiduciary relationship exists. Action to adjust 
mutual accounts and to strike a balance. 
Action for money had and received. Action in as
sumpsit based upon promise to repay implied by law, 
and in respect of limitation is a stated or liquidated 
account. Action brought where one person has received 
money or its equivalent under such circumstances that 
in equity and good conscience he ought not to retain it 
and in justice it belongs to another. Interstate Life & 
Accident Co. v. Cook, 19 Tenn.App. 290, 86 S.W.2d 887, 
891. 
Action for poinding I rekshan for pindilJ I . An action by 
a creditor to obtain a sequestration of the rents of land 
and the goods of his debtor for the satisfaction of his 
debt, or to enforce a distress. 
Action in personam lrekshan in parsownam/. See In 
personam. 
Action in rem lrekshan in rem/. See In rem. 
Action of assize I rekshan av asayz/. A real action at 
common law which proved the title of the demandant, 
merely by showing his ancestor's possession. 
Action of assumpsit lrekshan av as;)mpsat/. See As
sumpsit. 
Action of book debt. A form of common law action for 
the recovery of claims, such as are usually evidenced by 
a book-account. 
Action of contract. An action brought to enforce rights 
whereof the contract is the evidence, and usually the 
sufficient evidence. 
Action of writ. A (now obsolete) phrase in common law 
pleading used when a defendant plead some matter by 
which he showed that the plaintiff had no cause to have 
the writ sued upon, although it may be that he was 
entitled to another writ or action for the same matter. 
Actio non I rekshiyow non/. In the common law plead
ing, the Latin name of that part of a special plea which 
follows next after the statement of appearance and 
defense, and declares that the plaintiff "ought not to 
have or maintain his aforesaid action thereof against" 
the defendant (in Latin, actionem non habere debet). 
Actio non accrevit infra sex annos I rekshiyow non 
akriyvat infra seks renows/. The name of the plea of the 
statute of limitations, when the defendant alleges that 
the plaintiffs action has not accrued within six years.

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31 
Actio non datur non damnificato / rekshiyow non 
deyt;r non dremn;f;keytow I. An action is not given to 
one who is not injured. 
Actio non facit reum, nisi mens sit rea I rekshiyow non 
feys;t riy;m, naysay menz sit riy;l. An act does not 
make one guilty, unless the intention be bad. 
Action on the case. A common law species of personal 
action of formerly extensive application, otherwise 
called "trespass on the case," or simply "case," from the 
circumstance of the plaintiffs whole case or cause of 
complaint being set forth at length in the original writ 
by which formerly it was always commenced. In its 
most comprehensive signification it includes assumpsit 
as well as an action in form ex delicto ; though when it 
is mentioned it is usually understood to mean an action 
in form ex delicto. It is founded on the common law or 
upon acts of Parliament, and lies generally to recover 
damages for torts not committed with force, actual or 
implied; or having been occasioned by force where the 
matter affected was not tangible, or the injury was not 
immediate but consequential; or where the interest in 
the property was only in reversion, in all of which cases 
trespass is not sustainable. In the progress of judicial 
contestation it was discovered that there was a mass of 
tortious wrongs unattended by direct and immediate 
force, or where the force, though direct, was not expend
ed on an existing right of present enjoyment, for which 
the then known forms of action furnished no redress. 
The action on the case was instituted to meet this want. 
And wrongs which will maintain an action on the case 
are frequently committed in the nonobservance of 
duties, which are but the implication of contract obli
gation, duties of requisite skill, fidelity, diligence, and a 
proper regard for the rights of others, implied in every 
obligation to serve another. If the cause of action arises 
from a breach of promise, the action is "ex contractu"; 
but if the cause of action arises from a breach of duty 
growing out of the contract, it is in form ex delicto and 
case. When there is a contract, either express or im
plied, from which a common-law duty results, an action 
on the case lies for the breach of that duty. Such form 
of action no longer exists under Code and Rule pleading. 
See Assumpsit. 
Actio non ulterius lrekshiyow non ;}ltiriy;s/. In English 
pleading, a name given to the distinctive clause in the 
plea to the further maintenance of the action, introduced 
in place of the plea puis darrein continuance; the aver
ment being that the plaintiff ought not further (ulterius) 
to have or maintain his action. 
Actio noxalis lrekshiyow nokseyl;s/. In civil law, a 
noxal action; an action which lay against a master for a 
crime committed or injury done by his slave; and in 
which the master had the alternative either to pay for 
the damage done or to deliver up the slave to the 
complaining party. So called from noxa, the offense or 
injury committed. 
Action quasi in rem I reksh;n kweysay in rem/. An 
action brought against persons which only seeks to sub
ject the interest in certain property of those persons to 
ACTIO P<ENALIS 
discharge of claims asserted and judgment therein is 
only conclusive between parties and their privies. To
bin v. McClellan, 225 Ind. 335, 75 N.E.2d 149, 151. See 
In rem; Quasi in rem jurisdiction. 
Action redhibitory lreksh;n r;d(h)ibit(;)riy/. See Red
hibitory action. 
Action to quiet title. One in which plaintiff asserts his 
own estate and declares generally that defendant claims 
some estate in the land, without defining it, and avers 
that the claim is without foundation, and calls on defen
dant to set forth the nature of his claim, so that it may 
be determined by decree. It differs from a "suit to 
remove a cloud," in that plaintiff therein declares on his 
own title, and also avers the source and nature of 
defendant's claim, points out its defect, and prays that it 
may be declared void as a cloud on plaintiffs estate. It 
embraces every sort of a claim whereby the plaintiff 
might be deprived of his property or his title clouded or 
its value depreciated, or whereby the plaintiff might be 
incommoded or damnified by assertion of an outstanding 
title already held or to grow out of the adverse preten
sion. Bank of American Nat. Trust & Savings Ass'n v. 
Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678, 680. 
See Cloud on title. 
Actionum genera maxime sunt servanda 
hEkshiyown;}m jen;}r;} mreks;}miy s;}nt s;}rvrend;}I . The 
kinds of actions are especially to be preserved. 
Actio perpetua lrekshiyow p;}rpechuw;}/. An action 
without limitation period. 
Actio personalis I rekshiyow p;}rs;neyl;}s/. In the civil 
and common law, a personal action. See In personam. 
Actio personalis moritur cum persona I rekshiyow 
p;}rs;}neyl;}s mor;}t;}r k;}m p;}rsowney I. A personal right 
of action dies with the person. The maxim was original
ly applied to almost every form of action, whether aris
ing out of contract or tort, but the common law was 
modified by the Statute of 4 Edward the III. Momand v. 
Twentieth-Century Fox Film Corporation, D.C.Okl., 37 
F.Supp. 649, 652. 
Actio pignoratitia lrekshiyow pign;}reytishiy;}/. An ac
tion of pledge; an action founded on the contract of 
pledge (pignus). 
Actio prenalis I rekshiyow piyneyl;}s/. Called also actio 
ex delicto. An action in which a penalty was recovered 
of the delinquent. 
Actiones prenales and actiones mixtre comprehended 
cases of injuries, for which the civil law permitted re
dress by private action, but which modern civilization 
universally regards as crimes; that is, offenses against 
society at large, and punished by proceedings in the 
name of the state alone. Thus, theft, receiving stolen 
goods, robbery, malicious mischief, and the murder or 
negligent homicide of a slave (in which case an injury to 
property was involved), gave rise to private actions for 
damages against the delinquent. 
Actio prenalis in hreredem non datur, nisi forte ex 
damno locupletior hreres factus sit I rekshiyow

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ACTIO P<ENALIS 
piyneyl�s in h�riyd�m non deyt�r miysay fortiy eks 
dremnow lowk�pliysh�r hiriyz frekt�s sit/. A penal ac
tion is not given against an heir, unless, indeed, such 
heir is benefited by the wrong. 
Actio prrejudicialis lrekshiyow priyjuwdishiyeybs/. A 
preliminary or preparatory action. An action instituted 
for the determination of some preliminary matter on 
which other litigated matters depend, or for the determi
nation of some point or question arising in another or 
principal action; and so called from its being determined 
before (prius, or prre judicari). 
Actio prrescriptis verbis lrekshiyow pr�skript�s v�rb�s/. 
A form of action which derived its force from continued 
usage or the responsa prudentium, and was founded on 
the unwritten law. The distinction between this action 
and an actio in factum is said to be, that the latter was 
founded not on usage or the unwritten law, but by 
analogy to or on the equity of some subsisting law. 
Actio prretoria lrekshiyow pr�toriy;}/. A prretorian ac
tion; one introduced by the prretor, as distinguished 
from the more ancient actio civilis (q.v.). 
Actio pro socio I rekshiyow prow sowshiyow I. An action 
of partnership. An action brought by one partner 
against his associates to compel them to carry out the 
terms of the partnership agreement. 
Actio publiciana lrekshiyow p;}blishiyeyn;}/. An action 
which lay for one who had lost a thing of which he had 
bona fide obtained possession, before he had gained a 
property in it, in order to have it restored, under color 
that he had obtained a property in it by prescription. It 
was an honorary action, and derived its name from the 
prretor Publici us, by whose edict it was first given. 
Actio qurelibet in sua via lrekshiyow kwiyl;}bet in 
s(y)UW;} vay;}/. Every action proceeds in its own way. 
Actio quod jussu I rekshiyow kwod j�syuw I. An action 
given against a master, founded on some business done 
by his slave, acting under his order (jussu). 
Actio quod metus causa lrekshiyow kwod met;}s koz;}/. 
An action granted to one who had been compelled by 
unlawful force, or fear (metus causa) . that was not 
groundless (metus probabilis or justus) to deliver, sell, or 
promise a thing to another. 
Actio realis 1 rekshiyow riyeyl;}s/. A real action. The 
proper term in the civil law was rei vindicatio. 
Actio redhibitoria lrekshiyow r;}d(h)ib;}toriy;}/. An ac
tion to cancel a sale in consequence of defects in the 
thing sold. It was prosecuted to compel complete resti
tution to the seller of the thing sold, with its produce 
and accessories, and to give the buyer back the price, 
with interest, as an equivalent for the restitution of the 
produce. See Redhibit ory action. 
Actio rerum amotarum 1 rekshiyow rir;}m eymow
ter�m /. An action for things removed; an action which, 
in cases of divorce, lay for a husband against a wife, to 
recover things carried away by the latter, in contempla
tion of such divorce. It also lay for the wife against the 
husband in such cases. 
32 
Actio rescissoria lrekshiyow res;}soriy;}/. An action for 
restoring plaintiff to a right or title which he has lost by 
prescription, in a case where the equities are such that 
he should be relieved from the operation of the prescrip
tion. An action to rescind a prescriptive title by one 
who was entitled to exemption from the prescription 
law, as a minor, etc. 
Actio serviana lrekshiyow s;)rviyeyn�/. An action 
which lay for the lessor of a farm, or rural estate, to 
recover the goods of the lessee or farmer, which were 
pledged or bound for the rent. 
Actio stricti juris I rekshiyow striktay jur;}s/. An action 
of strict right. The class of civil law personal actions, 
which were adjudged only by the strict law, and in 
which the judge was limited to the precise language of 
the formula, and had no discretionary power to regard 
the bona fides of the transaction. 
Actio temporalis lrekshiyow temp;}reybs/. An action 
which must be brought within a limited time. See 
Limitation. 
Actio tutelre lrekshiyow t(y)uwtiyliy/. Action founded 
on the duties or obligations arising on the relation 
analogous to that of guardian and ward. 
Actio utilis lrekshiyow yUwt;}l;}s/. In the civil law, a 
beneficial action or equitable action. An action founded 
on equity instead of strict law, and available for those 
who had equitable rights or the beneficial ownership of 
property. Actions are divided into actiones directre or 
utiles. The former are founded on certain legal obli
gations which from their origin were accurately defined 
and recognized as actionable. The latter were formed 
analogically in imitation of the former. They were 
permitted in legal obligations for which the actiones 
directre were not originally intended, but which resem
bled the legal obligations which formed the basis of the 
direct action. 
Actio venditi 1 rekshiyow vend;}tay I. An action em
ployed in behalf of a seller, to compel a buyer to pay the 
price, or perform any special obligations embodied in a 
contract of sale. See Specific performance. 
Actio vi bonorum raptorum 1 rekshiyow vay bownor�m 
rreptor;}m/. An action for goods taken by force; a 
species of mixed action, which lay for a party whose 
goods or movables (bona) had been taken from him by 
force (vi), to recover the things so taken, together with a 
penalty of triple the value. Bracton describes it as lying 
de rebus mobilibus vi ablatis sive robbatis (for movable 
things taken away by force, or robbed). 
Actio vulgaris 1 rekshiyow v;}lger;}s/. A legal action; a 
common action. Sometimes used for actio directa. 
Active. That is in action; that demands action; actually 
subsisting; the opposite of passive. An active debt is 
one which draws interest. An active trust is a confi
dence connected with a duty. An active use is a present 
legal estate. 
Active concealment. Term implies a purpose or design 
to conceal accomplished by words or acts, while passive

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33 
concealment consists in mere silence where there is a 
duty to speak. Vendt v. Duenke, Mo.App., 210 S.W.2d 
692, 699. Concealment becomes a fraud where it is 
effected by misleading and deceptive talk, acts, or con
duct, where it is accompanied by misrepresentations, or 
where, in addition to a party's silence, there is any 
statement, word, or act on his part which tends affirma
tively to a suppression of the truth. Such conduct is 
designated active concealment. Equitable Life Ins. Co. 
of Iowa v. Halsey, Stuart & Co., C.C.A.Ill., 11 2 F.2d 302, 
309. 
Active negligence. A term of extensive meaning em
bracing many occurrences that would fall short of will
ful wrongdoing, or of crass negligence, for example, all 
inadvertent acts causing injury to others, resulting from 
failure to exercise ordinary care; likewise, all acts the 
effects of which are misjudged or unforeseen, through 
want of proper attention, or reflection, and hence the 
term covers the acts of willful wrongdoing and also 
those which are not of that character. Cohen v. Noel, 
Tenn.App., 104 S.W.2d 1001, 1005. 
Active negligence denotes some positive act or some 
failure in duty of operation which is equivalent of a 
positive act and is omission of due care and affirmative 
action by person in control, or negligence occurring in 
connection with activities conducted on the premises. 
Pachowitz v. Milwaukee & Suburban Transport Corp., 
56 Wis.2d 383, 202 N.W.2d 268, 275. Difference between 
"active" and "passive" negligence is that one is only 
passively negligent if he merely fails to act in fulfill
ment of duty of care which law imposes upon him, while 
one is actively negligent if he participates in some 
manner in conduct or omission which caused injury. 
King v. Timber Structures, Inc. of CaL, 240 C.A.2d 178, 
49 Cal.Rptr. 414, 417. 
See also Negligence. 
Active participant. Any person who engages in con
duct, either by act or omission, which is an essential 
element of the crime. State v. Greene, Mo.App., 655 
S.W.2d 714, 717. 
Active trust. See Trust. 
Activity. An occupation or pursuit in which person is 
active. State ex reI. Agard v. Riederer, Mo., 448 S.W.2d 
577, 582. 
Act malum in se / rekt mrel::lm in siy /. See Malum in se. 
Act malum prohibitum / rekt mrebm pr::lhib::lt::lm/. See 
Malum prohibitum. 
Act of attainder. A legislative act, attainting a person. 
See Attainder. 
Act of bankruptcy. Term used under former federal 
Bankruptcy Act (§ 3), to refer to any act which rendered 
a person liable to be proceeded against involuntarily as 
a bankrupt, or for which he could be adjudged bankrupt. 
The new Bankruptcy Code (1979) no longer provides for 
specific acts of bankruptcy, but rather provides for invol
untary bankruptcy when the debtor, in general, is not 
paying his debts as they become due. Bankruptcy Code, 
§ 303. See Bankruptcy Code; Bankruptcy proceedings. 
Black's Law Dictionary 6th Ed.-2 
ACT OF STATE 
Act of Elizabeth. See Act of supremacy. 
Act of God. An act occasioned exclusively by forces of 
nature without the interference of any human agency. 
A misadventure or casualty is said to be caused by the 
"act of God," when it happens by the direct, immediate, 
and exclusive operation of the forces of nature, uncon
trolled and uninfluenced by the power of man, and 
without human intervention, and is of such a character 
that it could not have been prevented or escaped from 
by any amount of foresight or prudence, or by any 
reasonable degree of care or diligence, or by the aid of 
any appliances which the situation of the party might 
reasonably require him to use. Any accident produced 
by any physical cause which is irresistible, such as 
lightning, tempests, perils of the seas, tornados, earth
quakes. Middaugh v. U.S., D.C.Wyo., 293 F.Supp. 977, 
980. See Inevitable accident; Perils of the sea; Vis major. 
Act of grace. The term is often used to designate a 
general act of parliament, originating with the crown, 
such as has often been passed at the commencement of a 
new reign, or the coming of age or marriage of a sover
eign, or at the close of a period of civil troubles, declar
ing pardon or amnesty to numerous offenders. See also 
Days of grace; Grace period. 
Act of insolvency. See Act of bankruptcy. 
Act of law. The operation of fixed legal rules upon 
given facts or occurrences, producing consequences inde
pendent of the design or will of the parties concerned; 
as distinguished from "act of parties." Also an act 
performed by judicial authority which prevents or pre
cludes a party from fulfilling a contract or other engage
ment. See Act in pais. 
Act of nature. See Act of God. 
Act of parliament. A statute; a law made by the 
British sovereign, with the advice and consent of the 
lords and the commons, in parliament assembled. Acts 
of parliament form the leges scriptre, i.e., the written 
laws of the kingdom. Such acts are of three kinds: 
public, local or special, private or personal. The validity 
of a statute cannot be questioned in court. 
Act of providence. An accident against which ordinary 
skill and foresight could not guard. Equivalent to "act 
of God" (q.v.). 
Act of sale. An official record of a sale of property, 
made by a notary who writes down the agreement of the 
parties as stated by them, and which is then signed by 
the parties and attested by witnesses. 
Act of settlement. The English statute (12 & 13 Wm. 
III, c. 2) limiting the crown to the Frincess Sophia of 
Hanover, and to the heirs of her body being Protestants. 
1 BI.Comm. 128. One clause of it made the tenure of 
judges' office for life or good behavior independent of the 
crown. 
Act of state. An act done by the sovereign power of a 
country, or by its delegate, within the limits of the 
power vested in him. An act of state cannot be ques-

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ACT OF STATE 
tioned or made the subject of legal proceedings in a 
court of law. See Act of state doctrine. 
Act of state doctrine. The judicially created act of state 
doctrine precludes the courts of this country from in
quiring into the validity of governmental acts of a recog
nized foreign sovereign committed within its own terri
tory. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 
398, 84 S.Ct. 923, 11 L.Ed.2d 804; Ricaud v. American 
Metal Co., 246 U.S. 304, 38 S.Ct. 312, 62 L.Ed. 733; 
Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 
62 L.Ed. 726; F. Palicio y Compania, S. A. v. Brush, 256 
F.Supp. 481 affd, 375 F.2d 1011 (2d Cir.), cert. denied, 
389 U.S. 830, 88 S.Ct. 95, 19 L.Ed.2d 88. 
Act of supremacy. An act of 26 Hen. VIII, c. 1, and also 
1 Eliz., c. 1, which recognized the king as the only 
supreme head on earth of the Church of England having 
full power to correct all errors, heresies, abuses, of
fenses, contempts and enormities. The oath, taken un
der the act, denies to the Pope any other authority than 
that of the Bishop of Rome. 
Act of uniformity. The English statute of 13 & 14 Car. 
II, c. 4, enacting that the book of common prayer, as 
then recently revised, should be used in every parish 
church and other place of public worship, and otherwise 
ordaining a uniformity in religious services, etc. 
Acton Burnel, statute of. In English law, a statute, 
otherwise called Statu tum Mercatorum or de Mercatori
bus, the statute of the merchants, made at a parliament 
held at the castle or village of Acton Burnel in Shrop
shire, in the 11th year of the reign of Edward I. It was 
a statute for the collection of debts, the earliest of its 
class, being enacted in 1283. A further statute for the 
same object, and known as De Mercatoribus, was enact
ed 13 Edw. I, (c. 3). See Statute (Statute merchant). 
Act on petition. A form of summary proceeding former
ly in use in the high court of admiralty, in England, in 
which the parties stated their respective cases briefly, 
and supported their statements by affidavit. 
Actor. One who acts. The term is used in the Restate
ment of Torts, Second, to designate either the person 
whose conduct is in question as subjecting him to liabili
ty toward another, or as precluding him from recovering 
against another whose tortious conduct is a legal cause 
of the actor's injury. Sec. 2. 
Old European law. A patron, proctor, advocate, or 
pleader; one who acted for another in legal matters; 
one who represented a party and managed his cause. 
An attorney, bailiff, or steward; one who managed or 
acted for another. The Scotch "doer" is the literal 
translation. 
Roman law. One who acted for another; one who 
attended to another's business; a manager or agent. A 
slave who attended to, transacted, or superintended his 
master's business or affairs, received and paid out mon
eys, and kept accounts. The word has a variety of 
closely-related meanings, very nearly corresponding 
with manager. Thus, actor dominre, manager of his 
master's farm; actor ecclesile, manager of church proper-
34 
ty; actores provinciarum, tax-gatherers, treasurers, and 
managers of the public debt. 
Actor ecclesile.-An advocate for a church; one who 
protects the temporal interests of a church. Actor 
villre was the steward or head-bailiff of a town or 
village. 
Plaintiff or complainant. In a civil or private action 
the plaintiff was often called by the Romans "petitor;" 
in a public action (causa publica) he was called "accusa
tor." The defendant was called "reus, " both in private 
and public causes. This term, however, might signify 
either party, as might be concluded from the word 
itself. In a private action, the defendant was often 
called "adversarius," but either party might be called 
so. 
Also, the term is used of a party who, for the time 
being, sustains the burden of proof, or has the initiative 
in the suit. 
Actore non probante reus absolvitur I rektoriy non 
prowbrentiy riy;)s rebzolv;)t;)r/. When the plaintiff does 
not prove his case the defendant is acquitted (or ab
solved). 
Actori incumbit onus probandi I rektoray il)k;}mb;)t 
own;)s pr;)brenday I. The burden of proof rests on the 
plaintiff (or on the party who advances a proposition 
affirmatively.) 
Actor qui contra regulam quid adduxit, non est au
diendus lrektor kwity kontr;) regy;)l;)m kwid ;)d;}ks;)t, 
non est odiyend;)s/. A plaintiff (or pleader) is not to be 
heard who has advanced anything against authority (or 
against the rule). 
Actor sequitur forum rei I rektor sekw;)t;)r for;)m riyay I. 
According as rei is intended as the genitive of res, a 
thing, or reus, a defendant, this phrase means: The 
plaintiff follows the forum of the property in suit, or the 
forum of the defendant's residence. 
Actrix I rektriksl . Lat. A female actor; a female plain
tiff. 
Acts of court. Legal memoranda made in the admiralty 
courts in England, in the nature of pleas. 
Acts of possession. To constitute adverse possession, 
acts of possession must be: (1) hostile or adverse, (2) 
actual, (3) visible, notorious, and exclusive, (4) continu
ous, and (5) under claim of ownership. Bilyeu v. Plant, 
75 IlLApp.2d 109, 220 N.E.2d 513. See Adverse posses
sion. 
Actual. Real; substantial; existing presently in fact; 
having a valid objective existence as opposed to that 
which is merely theoretical or possible. Opposed to 
potential, possible, virtual, theoretical, hypothetical, or 
nominal. Something real, in opposition to constructive 
or speCUlative; something existing in act. It is used as a 
legal term in contradistinction to virtual or constructive 
as of possession or occupation. Actually is opposed to 
seemingly, pretendedly, or feignedly, as actually engaged 
in farming means really, truly in fact. As to actual 
Bias; Damages; Delivery; Fraud; Malice; Notice; Occu-

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35 
pation; Ouster; Possession; Residence; Seisin; Total 
loss, see those titles. 
Actual authority. The power of an agent to bind its 
principal where such power derives either from express 
or implied agreement between the principal and the 
agent. HyKen v. Travelers Ins. Co., Mo.App., 678 
S.W.2d 454, 457. In the law of agency, such authority as 
a principal intentionally confers on the agent, or inten
tionally or by want of ordinary care allows the agent to 
believe himself to possess. National Cash Register Co. 
v. Wichita Frozen Food Lockers, Tex.Civ.App., 172 
S.W.2d 781, 787. Includes both express and implied 
authority. 
Actual bias. See Bias. 
Actual cash value. The fair or reasonable cash price 
for which the property could be sold in the market in 
the ordinary course of business, and not at forced sale. 
The price it will bring in a fair market after reasonable 
efforts to find a purchaser who will give the highest 
price. What property is worth in money, allowing for 
depreciation. Ordinarily, "actual cash value", "fair 
market value", and "market value" are synonymous 
terms. See Actual value; Cash value; Fair market value; 
Fair value. 
Actual change of possession. In statutes of frauds, an 
open, visible and unequivocal change of possession, man
ifested by the usual outward signs, as distinguished from 
a merely formal or constructive change. 
Actual controversy. Declaratory judgment may be ren
dered only in cases of "actual controversy" defined as 
concrete cases touching legal relations of parties having 
adverse legal interests and susceptible of an immediate 
and definitive determination of the legal rights of the 
parties in an adversary proceeding upon the alleged 
facts. Dr. Beck & Co. G.M.B.H. v. General Elec. Co., 
D.C.N.Y., 210 F.Supp. 86, 89. See also Case (Cases and 
controversies); Declaratory Judgment Act.. 
Actual cost. The actual price paid for goods by a party, 
in the case of a real bona fide purchase, which may not 
necessarily be the market value of the goods. It is a 
general or descriptive term which may have varying 
meanings according to the circumstances in which it is 
used. It imports the exact sum expended or loss sus
tained rather than the average or proportional part of 
the cost. Its meaning may be restricted to materials, 
labor, and overhead or extended to other items. 
Actual damages. Compensation for actual injuries or 
loss. Chappell v. City of Springfield, Mo., 423 S.W.2d 
810, 814. Term used to denote the type of damage 
award as well as the nature of injury for which recovery 
is allowed; thus, actual damages flowing from injury in 
fact are to be distinguished from damages which are 
nominal, exemplary or punitive. Rasor v. Retail Credit 
Co., 87 Wash.2d 516, 554 P.2d 1041, 1049. "Actual 
damages" are synonymous with compensatory damages. 
Weider v. Hoffman, D.C.Pa., 238 F.Supp. 437, 445. See 
also Damages. 
Actual delivery. See Delivery. 
ACTUAL VIOLENCE 
Actual eviction. An actual expulsion of the tenant out 
of all or some part of the demised premises. A physical 
ouster or dispossession from the very thing granted or 
some substantial part thereof. Cauley v. Northern 
Trust Co., 315 IlLApp. 307, 43 N.E.2d 147, 155, 315. See 
Constructive eviction; Eviction; Forcible entry and detain
er; Sum mary (Summary process). 
Actual fraud See Fraud. 
Actual loss. One resulting from the real and substantial 
destruction of the property insured. 
Actual malice. See Malice. 
Actual market value. In custom laws, the price at 
which merchandise is freely offered for sale to all pur
chasers; the price which the manufacturer or owner 
would have received for merchandise, sold in the ordi
nary course of trade in the usual wholesale quantities. 
See also, Market volume. 
Actual notice. See Notice. 
Actual possession. See Possession. 
Actual practice. Active, open and notorious engage
ment in business, vocation or profession as opposed to 
casual or clandestine practice. State ex reL Laughlin v. 
Washington State Bar Ass'n, 26 Wash.2d 914, 176 P.2d 
301, 309. 
Actual physical control. Such control within statute 
providing that it is unlawful and punishable by law for 
any person under influence of intoxicating liquor to be 
in actual physical control of any motor vehicle within 
state means existing or present bodily restraint, direct
ing influence, domination, or regulation of any automo
bile while under the influence of intoxicating liquor. 
Bearden v. State, OkLCr., 430 P.2d 844, 847. 
Actual residence. The abode, where one actually lives, 
not mere naked legal residence. In re McGrath, 243 
App.Div. 803, 278 N.Y.S. 135. See Domicile; Residence. 
Actual trust. See Trust. 
Actual use. Term "actual use" in automobile liability 
policy providing coverage for nonowned automobile if 
the actual operation or actual use of automobile by 
relative of insured is with permission of owner means 
present or active use or a use existing in fact or reality 
as distinguished from an imputed or constructive use. 
United Services Auto. Ass'n v. United States Fire Ins. 
Co., 36 C.A.3d 765, 111 CaLRptr. 595, 598. 
Actual value. Actual value to be awarded in condemna
tion proceeding is price that would probably result from 
negotiations between willing seller and willing buyer. 
"Actual value," "market value," "fair market value," 
"just compensation" and the like may be used as con
vertible terms. "Saleable value," "actual value," "cash 
value," and other like terms used in directions to tax 
assessing officers, all mean generally the same thing. 
In re Lang Body Co., C.C.A.O hio, 92 F.2d 338, 340. See 
also Market value. 
Actual violence. An assault with actual violence is an 
assault with physical force put in action, exerted upon

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ACTUAL VIOLENCE 
the person assailed. The term violence is synonymous 
with physical force, and the two are used interchange
ably in relation to assaults. 
Actuarial table I rekchuweriY::lI. teyb::ll/ . A form of orga
nized statistical data which indicates the life expectancy 
of a person and which is admissible in evidence through 
an expert witness. Leave v. Boston Elevated Railway, 
306 Mass. 391, 397, 28 N.E.2d 483. Such tables are used 
by insurance companies in determining premiums. See 
also American experience table of mortality; Life tables; 
Mortality tables. 
Actuarius lrekchuweriY::ls/. In Roman law, a notary or 
clerk. One who drew the acts or statutes, or who wrote 
in brief the public acts. An officer who had charge of 
the public baths; an officer who received the money for 
the soldiers, and distributed it among them; a notary. 
See also Actor. 
Actuary hi!kchuweriy I. A statistician who computes 
insurance and pension rates and premiums on the basis 
of experience tables (e.g. life expectancy and mortality 
tables). 
Actum I rekt::lm/. Lat. A deed; something done. 
Actus lrekt::lsl. In the civil law, an act or action. Non 
tan tum verbis, sed etiam actu; not only by words, but 
also by act. 
A species of right of way, consisting in the right of 
driving cattle, or a carriage, over the land subject to the 
servitude. It is sometimes translated a "road," and 
included the kind of way termed "iter, " or path. 
In old English law, an act of parliament; a statute. A 
distinction, however, was sometimes made between ac
tus and statutum. Actus parliamenti was an act made 
by the lords and commons; and it became statutum, 
when it received the king's consent. 
Actus curire neminem gravabit I rekt::ls kyuriyiy 
nem::ln::lm gr::lveyb::ltl. An act of the court shall preju
dice no man. Where a delay in an action is the act of 
the court, neither party shall suffer for it. 
Actus Dei nemini est damnosus I rekt::ls diyay nem::lnay 
est dremnows::ls/. The act of God is hurtful to no one. 
That is, a person cannot be pre judiced or held respon
sible for an accident occurring without his fault and 
attributable to the "act of God." See Act of God. 
Actus Dei nernini facit injuriam I rekt::ls diyay nem::lnay 
feys::lt ::lnjuriY::lm/. The act of God does injury to no one. 
2 BLComm. 122. A thing which is inevitable by the act 
of God, which no industry can avoid, nor policy prevent, 
will not be construed to the prejudice of any person in 
whom there was no laches. 
Actus inceptus, cujus perfectio pendet ex voluntate 
partium, revocari potest; si autem pendet ex volun
tate tertire personre, vel ex contingenti, revocari non 
potest lrekt::ls insept::ls, kyuwj::ls p::lrfeksh(iy)ow pend::lt 
eks voi::lnteytiy t;}rshiyiy p::lrsowniy, vel eks kontinjen
tay, rev::lkeray non powt::lstl. An act already begun, the 
completion of which depends on the will of the parties, 
36 
may be revoked; but if it depend on the will of a third 
person, or on a contingency, it cannot be revoked. 
Actus judiciarius coram non judice irritus habetur, 
de ministeriali autem a quocunque provenit ratum 
esto I rekt::ls j::ldishiyeriY::ls kor::lm non juwd::lsiy ihr::lt::ls 
h::lbiyt::lr, diy min::lstiriyeylay ot::lm ey kwowk;}lJkwiy 
pr::lviyn::lt reyd::lm estow I. A judicial act by a judge 
without jurisdiction is void; but a ministerial act, from 
whomsoever proceeding, may be ratified. 
Actus legis nemini est damnosus I rekt::ls liyj::ls 
nem::lnay est dremnows::lsi. The act of the law is hurtful 
to no one. An act in law shall prejudice no man. 
Actus legis nemini facit injuriam I rekt::ls liyj::ls 
nem::lnay feys::lt ::lnjuriY::lm/. The act of the law does 
injury to no one. 
Actus legitimi non recipiunt modum I rekt::ls l::ljit::lmay 
non r::lsipiY::lnt mowd::lm/. Acts required to be done by 
law do not admit of qualification. 
Actus me invito factus non est meus actus I rekt::ls miy 
::lnvaytow frekt::ls non est miY::ls rekt::lsl. An act done by 
me, against my will, is not my act. 
Actus non facit reum, nisi mens sit rea I rekt::ls non 
feys::lt riY::lm, naysay menz sit riY::l/. An act does not 
make [the doer of it] guilty, unless the mind be guilty; 
that is, unless the intention be criminal. The intent 
and the act must both concur to constitute the crime. 
Actus repugnus non potest in esse produci I rekt::ls 
r::lp;}gn::ls non powtest in esiy pr::ld(y)uwsay/. A repug
nant act cannot be brought into being, i.e., cannot be 
made effectuaL 
Actus reus lrekt::ls riY::lsl. The "guilty act." A wrongful 
deed which renders the actor criminally liable if com
bined with mens rea. The actus reus is the physical 
aspect of a crime, whereas the mens rea (guilty mind) 
involves the intent factor. 
Actus servi in iis quibus opera ejus communiter 
adhibita est, actus domini habetur I rekt::ls s;}rvay in 
aY::ls kwib::ls owp::lr::l iyj::ls k::lmyuwn::lt::lr ::ldhib::lt::l est rekt::ls 
dom::lnay h::lbiyt::lr/. The act of a servant in those things 
in which he is usually employed, is considered the act of 
his master. 
A cueillette la k::lyet/. In French law, in relation to the 
contract of affreightment, signifies when the cargo is 
taken on condition that the master succeeds in complet
ing his cargo from other sources. 
Ad lred/. Lat. At; by; for; near; on account of; to; 
until; upon; with relation to or concerning. 
A.D. An abbreviation of Anno Domini meaning in the 
year of our Lord. 
Ad abundantiorem cautelam I red ::lb::lndrenshiyor::lm 
kotiyl::lm/. Lat. For more abundant caution. Other
wise expressed, ad cautelam ex superabundanti. 
Ad admittendum clericum Ired redmitend::lm kler::lk::lm/. 
For the admitting of the clerk. A writ in the nature of 
an execution, commanding the bishop to admit his clerk, 
upon the success of the latter in a quare impedit.

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37 
Ad aliud examen /eM eyliy�d �gzeym�n/. To another 
tribunal; belonging to another court, cognizance, or 
jurisdiction. 
Ad alium diem /ei!d eyliy�m day�m/. At another day. 
A common phrase in the old reports. 
Adamson Act. Act of Congress (1916) establishing the 8 
hour workday. 45 U.S.C.A. § 45. 
Adapted. Capable of use. Indicates that the object 
referred to has been made suitable; has been made to 
conform to; has been made fit by alteration. Raynor v. 
United States, C.C.A.lnd., 89 F.2d 469, 47 1. 
Adaptation right. In copyright law, the exclusive right 
of the holder of a copyright to prepare "derivative 
works" based on the copyrighted item. 
Ad assisas capiendas I red �sayz�s krepiyendesl. To take 
assises; to take or hold the assises. 3 Bl.Comm. 185, 
352. Ad assisam capiendam; to take an assise. 
A dato ley deydow I. From the date. See A datu. 
A datu ley deyduw/. Law Latin. From the date. See A 
dato. 
Ad audiendam considerationem curire I red odiyend�m 
k�nsid�reyshiy6wn�m kyuriyiy I. To hear the judgment 
of the court. 
Ad audiendum et determinandum I red odiyend�m et 
d�t;)rm�nrend�m/. To hear and determine. 4 Bl.Comm. 
278. 
Ad barram Ired bar�m/. To the bar; at the bar. 
Ad barram evocatus I red bar�m iyvowkeyt�sl. Called 
to the bar. 
Ad campi partem Ired krempay part�m/. For a share of 
the field or land, for champert. 
Ad captum vulgi I red kreptem v;}ljay I. Adapted to the 
common understanding. 
Ad coelum doctrine I red siyl�m d6ktr�n/. A person 
owns the space above his real estate to the extent that 
no one may acquire a right to such air space that will 
limit the owner's enjoyment of it. This doctrine has 
been rejected by most courts. U. S. v. Causby, 328 U.S. 
256, 66 S.Ct. 1062, 90 L.Ed. 1206. Literally, to heaven. 
See Air rights. 
Ad colligendum I red kol�jend�m/. For collecting; as an 
administrator or trustee ad colligendum. 
Ad colligendum bona defuncti I red kol�jend�m b6wn� 
d�f;}IJktay I. For collecting the goods of the deceased. 
See Administration of estates. 
Ad communem legem Ired k�myUwn�m liyj�m/. At 
common law, the name of a writ of entry (now obsolete) 
brought by the reversioners after the death of the life 
tenant, for the recovery of lands wrongfully alienated by 
him. 
Ad commune nocumentum Ired k�myuwniy nok
y�ment�m/. To the common nuisance. 
ADDICTIVE DRUGS 
Ad comparendum Ired komp�rend�m/. To appear. Ad 
comparendum, et ad standum juri, to appear and to 
stand to the law, or abide the judgment of the court. 
Ad computum reddendum Ired k�mpyuwt�m r�den
d�m/. To render an account. 
Adcordabilis denarii I re(d)kordeyb�l�s d�nreriyay I. 
Money paid by a vassal to his lord upon the selling or 
exchanging of a feud. 
Ad culpam Ired k;}lp�m/. Until misbehavior. 
Ad curiam Ired kyuriy�m/. At a court. To court. 
Ad curiam vocare I red kyuriy�m vowkeriy I. To sum
mon to court. 
Ad custagia Ired k�steyj(iy)�/. At the costs. 
Ad custum Ired k;}st�m/. At the cost. 1 Bl.Comm. 314. 
Add. To unite; attach; annex; join. See also Addition; 
Additional. 
Ad damnum lre(d) dremn�m/. In pleading, "To the dam
age." The technical name of that clause of the writ, 
declaration, or, more commonly, the complaint, which 
contains a statement of the plaintiffs money loss, or the 
damages which he claims. Fed.R.Civil P. ·8 (a). 
Such clause informs an adversary of the maximum 
amount of the claim asserted without being proof of 
actual injury or of liability. Natale v. Great Atlantic & 
Pacific Tea Co., 8 App.Div. 781, 186 N.Y.S.2d 795, 796. 
Added substance. Test for determining whether sub
stance is an "added substance" within meaning of Feder
al Food, Drug, and Cosmetic Act is whether it occurs 
naturally in the food. Millet, Pit & Seed Co., Inc. v. 
U.S., D.C.Tenn., 436 F.Supp. 84, 87. See also Foreign 
substance. 
Ad defendendum lre(d) d�fendend�m/. To def end. 1 
Bl.Comm. 227. 
Addendum I redend�m/. A thing that is added or to be 
added; a list or section consisting of added material. 
Addicere lredis�riy/. Lat. In the civil law, to adjudge 
or condemn; to assign, allot, or deliver; to sell. In the 
Roman law, addico was one of the three words used to 
express the extent of the civil jurisdiction of the prretors. 
Addict. Any individual who habitually uses any narcot
ic drug so as to endanger the public morals, health, 
safety, or welfare, or who is or has been so far addicted 
to the use of such narcotic drugs as to have lost the 
power of self-control with reference to his addiction. 21 
U.S.C.A. § 802. People v. McKibben, 24 Ill.App.3d 692, 
321 N.E.2d 362, 364. 
Addictio lredikshiyow/. In the Roman law, the giving 
up to a creditor of his debtor's person by a magistrate; 
also the transfer of the (deceased) debtor's goods to one 
who assumes his liabilities. 
Addictive drugs. Any drug, natural or synthetic, which 
causes periodic or chronic intoxication by its repeated 
consumption.

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AD DIEM 
Ad diem /re(d) day;;)m/. At a day; at the day. Ad alium 
diem, at another day. Ad certum diem, at a certain day. 
Solvit ad diem, he paid at or on the day. 
Addition. Implies physical contact, something added to 
another. Structure physically attached to or connected 
with building itself. Mack v. Eyssell, 332 Mo. 671, 59 
S.W.2d 1049. Extension; increase; augmentation. 
Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65, 66. That 
which has become united with or a part of. See Appurte
nance; Fixture. 
In insurance law, the word "additi on", as applied to 
buildings usually means a part added or joined to a 
main building; though the term has also been held to 
apply to buildings appurtenant to some other building 
though not actually in physical contact therewith. 
At common law, whatever was added to a man's name 
by way of title or description. In English law, there 
were four kinds of additions,- additions of estate, such 
as yeoman, gentleman, esquire; additions of degree, or 
names of dignity, as knight, earl, marquis, duke; addi
tions of trade, mystery, or occupation, as scrivener, 
painter, mason, carpenter; and additions of place of 
residence as London, Chester, etc. 
Additional. This term embraces the idea of joining or 
uniting one thing to another, so as thereby to form one 
aggregate. Ex parte Boddie, 200 S.C. 379, 21 S.E.2d 4, 8. 
Additional burden. See Eminent domain. 
Additionales /redish(iy);;)neyliyz/. In the law of con
tracts, additional terms or propositions to be added to a 
former agreement. 
Additional extended coverage. Insurance policy in
dorsement covering dwellings; covering water damage 
from plumbing and heating systems, vandalism and 
malicious mischief, glass breakage, falling trees, ice, 
snow, etc. 
Additional instructions. Charge by judge to jury be
yond the original instructions. Frequently required 
when the jury returns from deliberations with a ques
tion concerning the evidence, point of law, or some 
portion of the original charge. 
Additional insurance. Insurance which is added to an 
existing policy. 
Additional insured. Person(s) covered by policy in addi
tion to the named insured; e.g. in an automobile liability 
policy, the "named insured" is usually the purchaser or 
the owner of the insurance policy, while an "additional 
insured" or an "insured" is one who is not specifically 
identified by name in the policy, but enjoys status of an 
insured under the named insured's policy, for example, 
as result of being the operator of the named insured's 
automobile. De Simone v. Nationwide Mut. Ins. Co., 149 
N.J.S uper. 376, 373 A.2d 1025, 1027. 
Additional legacy. See Legacy. 
Additional servitude. The imposition of a new and 
additional easement or servitude on land originally tak
en by eminent domain proceedings. A use of a different 
38 
character, for which owner of property is entitled to 
compensation. 
Additional work. Of nature involved in modifications 
and changes, not independent project. Maryland Casu
alty Co. v. City of South Norfolk, C.C.A.Va., 54 F.2d 
1032, 1037. Work which results from a change or alter
ation in plans concerning work which has to be done 
under a contract, while "extra work" relates to work 
which is not included within the contract itself. De 
Martini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487, 
489. 
Additio probat minoritatem /;;)dish(iy)ow prowb;;)t 
m;;)nor;;)teyt;;)m/. An addition [to a name] proves or 
shows minority or inf eriority. That is, if it be said that 
a man has a fee tail, it is less than if he has the fee. 
Additur hi:d;;)t;;)r/. The power of trial court to assess 
damages or increase amount of an inadequate award 
made by jury verdict, as condition of denial of motion for 
new trial, with consent of defendant whether or not 
plaintiff consents to such action. Dorsey et al. v. Barba 
et aI., Cal.App., 226 P.2d 677. This is not allowed in the 
Federal system. Dimick v. Schiedt, 293 U.S. 474, 55 
S.Ct. 296, 79 L.Ed. 603. Compare Remittitur. 
Add on clause. A clause in an installment sales con
tract that makes earlier purchases with that firm securi
ty for new purchases. 
Add on interest. Method of charging interest usually in 
the financing of certain major types of consumer goods 
and generally not in real estate financing. Interest is 
computed on the total amount borrowed and added to 
the principal. Each payment is then deducted from this 
total amount. 
Addone, addonne /redowniy/. L. Fr. Given to. 
Address. Place where mail or other communications 
will reach person. Munson v. Bay State Dredging & 
Contracting Co., 314 Mass. 485, 50 N.E.2d 633, 636. 
Generally a place of business or residence; though it 
need not be. 
Bill of address. Provision in Massachusetts Constitu
tion which provides that judges are subject to removal 
upon the address of a majority of both houses of the 
legislature with approval of the Governor and the Exec
utive Council. 
Equity pleading. Part of a bill wherein is given the 
appropriate and technical description of the court in 
which the bill is filed. See Caption. 
Address to the crown. In England when the royal 
speech has been read in Parliament, an address in 
answer thereto is moved in both houses. Two members 
are selected in each house by the administration for 
moving and seconding the address. Since the com
mencement of the session 1890-1891, it has been a 
single resolution expressing their thanks to the sover
eign for his gracious speech. 
Adduce. To present, bring forward, offer, introduce. 
Used particularly with reference to evidence.

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39 
Ad ea qure frequentius accidunt jura adaptantur I red 
iy;) kwiy fr;)kwensh(iy);)s reks;)d;)nt jur;) redreptrent;)r I. 
Laws are adapted to those cases which most frequently 
occur. 
Adeem I�diym/. To take away, recall, or revoke. To 
satisfy a legacy by some gift or substituted disposition, 
made by the testator, in advance. Woodburn Lodge No. 
102, I. O. O. F. v. Wilson, 148 Or. 150, 34 P.2d 611, 614. 
See Ademption. 
Ad effectum I red �fekt�m/. To the effect, or end. Ad 
effectum sequentem, to the effect following. 
Adeling, or atheling lred(�)li1J/. Noble; excellent. A 
title of honor among the Anglo-Saxons, properly belong
ing to the king's children. 
Ademptio lredem(p)sh(iy)ow/. Lat. In the civil law, a 
revocation of a legacy; an ademption. Where it was 
expressly transferred from one person to another, it was 
called translatio. 
Ademption I�dem(p)sh�n/. Extinction or withdrawal of 
legacy by testator's act equivalent to revocation or indi
cating intention to revoke. Tagnon's Adm'x v. Tagnon, 
253 Ky. 374, 69 S.W.2d 714. 
Testator's giving to a legatee that which he has pro
vided in his will, or his disposing of that part of his 
estate so bequeathed in such manner as to make it 
impossible to carry out the will. Hurley v. Schuler, 296 
Ky. 11 8, 176 S.W.2d 275, 276. Revocation, recalling, or 
cancellation of a legacy, according to the apparent inten
tion of the testator, implied by the law from acts done by 
him in his life, though such acts do not amount to an 
express revocation of it. 
To take away, recall, revoke, or to satisfy legacy by 
some gift or substituted disposition, made by testator, in 
advance. In re Burnett's Estate, 49 N.J.S uper. 439, 140 
A.2d 242, 244. 
The act by which the testator pays to his legatee, in 
his life-time, a general legacy which by his will he had 
proposed to give him at his death; and the act by which 
a specific legacy has become inoperative on account of 
the testator having parted with the subject. Dillender 
v. Wilson, 228 Ky. 758, 16 S.W.2d 173, 174. 
See Advancement. 
Adeo I rediyow I. Lat. So, as. Adeo plene et integre, as 
fully and entirely. 
Adequate. Sufficient; commensurate; equally efficient; 
equal to what is required; suitable to the case or occa
sion; satisfactory. Equal to some given occasion or 
work. Nissen v. Miller, 44 N.M. 487, 105 P.2d 324, 326. 
Adequate care. Such care as a man of ordinary pru
dence would himself take under similar circumstances 
to avoid accident; care proportionate to the risk to be 
incurred. See also Care. 
Adequate cause. Sufficient cause for a particular pur
pose. 
In criminal law, adequate cause for the passion which 
reduces a homicide committed under its influence from 
the grade of murder to manslaughter, means such cause 
ADEQUATE PROVOCATION 
as would commonly produce a degree of anger, rage, 
resentment, or terror, in a person of ordinary temper, 
sufficient to render the mind incapable of cool reflection. 
Insulting words or gestures, or an assault and battery so 
slight as to show no intention to inflict pain or in jury, or 
an injury to property unaccompanied by violence are not 
adequate causes. Berry v. State, 143 Tex.Cr.R. 67, 157 
S.W.2d 650, 652. See Adequate provocation; Cause; 
Probable cause. 
Adequate compensation. Just value of property taken 
under power of eminent domain, payable in money, as 
guaranteed by 5th Amendment. Market value of prop
erty when taken. It may include interest and may 
include the cost or value of the property to the owner for 
the purposes for which he designed it. Such only as 
puts injured party in as good a condition as he would 
have been in if injury had not been inflicted. Town of 
Winchester v. Cox, 129 Conn. 106, 26 A.2d 592, 597. See 
also Fair market value; Just compensation. 
Adequate consideration. Such as is equal, or reason
ably proportioned, to the value of that for which it is 
given. That which is not so disproportionate as to shock 
our sense of that morality and fair dealing which should 
always characterize transactions between man and man. 
Fair and reasonable under circumstances. Reasonably 
just and equitable. See Consideration; Fair consideration; 
Fair market value; Fair value; Just compensation. 
Adequate notice. Notice reasonably calculated to ap
prise a person of an action, proceeding, or motion. N 0-
tice sufficient to permit an objection or defense. U. S. v. 
San Juan Lumber Co., D.C.Colo., 313 F.Supp. 703, 709. 
Notice reasonably calculated, in all circumstances of 
given proceeding, to apprise all interested parties of 
action and opportunity to present their objections. U.S. 
v. San Juan Lumber Co., D.C.Colo., 313 F.Supp. 703, 709. 
See Notice. 
Adequate preparation. Embraces full consultation 
with accused, interviews with witnesses, study of facts 
and law, and determination of character of defense to be 
made and policy to be followed during trial. Nelson v. 
Commonwealth, 295 Ky. 641, 175 S.W.2d 132, 133. 
Adequate protection. Phrase used in several sections 
of the Bankruptcy Code to describe protection afforded 
to holders of secured claims. It is meant to preserve 
secured creditor's position at the time of bankruptcy. In 
re Jamaica House, Inc., Bkrtcy.Vt., 31 B.R. 192, 195. 
More specifically, the lack of adequate protection of the 
creditor's interest in its collateral is a basis for relief 
from stay under Code § 362(d)(1); adequate protection is 
also the standard for creditor protection from sale or use 
or encumbrance of the collateral under Code sections 
363 and 364. While adequate protection is not statutori
ly defined, section 361 sets out examples of adequate 
protection. See In re Cooley, Bkrtcy.Pa., 37 B.R. 590, 
592. 
Adequate provocation. An adequate provocation to 
cause a sudden transport of passion that may suspend 
the exercise of judgment and exclude premeditation and 
a previously formed design is one that is calculated to

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ADEQUATE PROVOCATION 
excite such anger as might obscure the reason or domi
nate the volition of an ordinary reasonable man. See 
Adequate cause. 
Adequate remedy at law. For purposes of rule that a 
litigant who fails to avail himself of a remedy provided 
by law and who is subsequently barred from pursuing 
that remedy because of his own lack of diligence cannot 
rely on the absence of a remedy at law as a basis for 
equitable jurisdiction, is one which is as complete, prac
tical and as efficient to the ends of justice and its 
prompt administration as a remedy in equity, and which 
is obtainable as of right. In re Wife, K., Del.Ch., 297 
A.2d 424, 426. 
As preventing relief by in junction, means a remedy 
which is plain and complete and as practical and effi
cient to ends of justice and its prompt administration as 
a remedy in equity, and although an injunction will 
issue when legal remedy is inadequate, injunction 
should not be granted where complainant has an ade
quate remedy at law. Hancock v. Bradshaw, Tex.Civ. 
App., 350 S.W.2d 955, 957. 
A remedy that affords complete relief with reference 
to the particular matter in controversy, and is appropri
ate to the circumstances of the case. Such must reach 
end intended, and actually compel performance of duty 
in question. Simpson v. Williams Rural High School 
Dist., Tex.Civ.App., 153 S.W.2d 852, 856. 
Adessee lredesiy/. In the civil law, to be present; the 
opposite of abesse. 
Adeu l�dyUw/. Without day, as when a matter is finally 
dismissed by the court. Alez adeu, go without day. See 
Adieu. 
Ad eversionem juris nostri I red �v;)rz(h)iy6wn�m jur�s 
n6stray I. To the overthrow of our right. 
Ad excambium I red ekskrembiy�m/. For exchange; for 
compensation. 
Ad exhreredationem Ired eks-hir�deyshiy6wn�m/. To 
the disherison, or disinheriting; to the injury of the 
inheritance. 3 Bl.Comm. 288. Formal words in the old 
writ of waste, which calls upon the tenant to appear and 
show cause why he hath committed waste and destruc
tion in the place named, ad exhreredationem, etc. 
Ad exitum Ired egz�d�m/. At issue; at the end (of the 
pleadings). 
Ad faciendum I red feyshiyend�m/. To do. Ad facien
dum, subjiciendum et recipiendum; to do, submit to, and 
receive. Ad faciendam juratam illam; to make up that 
jury. 
Ad feodi firmam I red fyuwday f�rm�m/. To fee farm. 
Ad fidem I red fayd�m/. In allegiance. Subjects born ad 
fidem are those born· in allegiance. 
Ad filum aqure Ired fayl�m rekwiy/. To the thread of the 
water; to the central line, or middle of the stream. 
Usque ad filum aqUEe, as far as the thread of the stream. 
A phrase of which ad medium filum· aqure (q. v.) is 
another form, and etymologically more exact. 
40 
Ad filum vire Ired fayl�m vayiy/. To the middle of the 
way; to the central line of the road. 
Ad finem I red fayn�m/. Abbreviated ad fin. To the 
end. It is used in citations to books, as a direction to 
read from the place designated to the end of the chapter, 
section, etc. Ad finem litis, at the end of the suit. 
Ad firmam I red f�rm�m/. To farm. Derived from an 
old Saxon word denoting rent. Ad firmam noctis was a 
fine or penalty equal in amount to the estimated cost of 
entertaining the king for one night. Ad feodi firmam, 
to fee farm. 
Ad fundandam jurisdictionem I red f;)ndrend�m 
jur�sdikshiy6wn�m/. To make the basis of jurisdiction. 
Ad gaolas deliberandas Ired jeyl�s d�lib�rrend�sl. To 
deliver the gaols; to empty the gaols. Ad gaolam deli
berandam; to deliver the gaol; to make gaol delivery. 
Ad gravamen Ired grreveym�n/. To the grievance, inju
ry, or oppression. 
Adhering. Joining, leagued with, cleaving to; as, 
"adhering to the enemies of the United States." 
"Adhering" consists in giving to the United States the 
loyalty due from a citizen. United States v. Stephan, 
D.C.Mich., 50 F.Supp. 738, 741. Any intentional act 
furthering hostile designs of enemies of the United 
States, or an act which intentionally strengthens or 
tends to strengthen enemies of the United States, or 
which weakens or tends to weaken power of the United 
States to resist and attack such enemies, constitutes 
"adhering" to such enemies. United States v. Haupt, 
D.C.Ill., 47 F.Supp. 836, 839. 
Adhesion. Agreement to join; adherence. The en
trance of another nation into an existing treaty with 
respect only to a part of the principles laid down or the 
stipUlations agreed to. Properly speaking, by adhesion 
the third nation becomes a party only to such parts as 
are specifically agreed to, and by accession it accepts 
and is bound by the whole treaty. See Accession. 
Adhesion contract. Standardized contract form offered 
to consumers of goods and services on essentially "take 
it or leave it" basis without affording consumer realistic 
opportunity to bargain and under such conditions that 
consumer cannot obtain desired product or services ex
cept by acquiescing in form contract. Distinctive fea
ture of adhesion contract is that weaker party has no 
realistic choice as to its terms. Cubic Corp. v. Marty, 4 
Dist., 185 C.A.3d 438, 229 Cal.Rptr. 828, 833; Standard 
Oil Co. of Calif. v. Perkins, C.A.Or., 347 F.2d 379, 383. 
Recognizing that these contracts are not the result of 
traditionally "bargained" contracts, the trend is to re
lieve parties from onerous conditions imposed by such 
contracts. However, not every such contract is uncon
scionable. Lechmere Tire and Sales Co. v. Burwick, 360 
Mass. 713, 720, 721, 277 N.E.2d 503. 
Adhibere lredh�beriy/. In the civil law, to apply; to 
employ; to exercise; to use. Adhibere diligentiam, to 
use care. Adhibere vim, to employ force.

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41 
Ad hoc /c�d h6(w)k/. For this; for this special purpose. 
An attorney ad hoc, or a guardian or curator ad hoc, is 
one appointed for a special purpose, generally to repre
sent the client or infant in the particular action in 
which the appointment is made. 
Ad hoc arbitration. Submission of a particUlar issue to 
arbitration. 
Ad hominem I red h6m:m�m/. To the person. A term 
used in logic with reference to a personal argument. 
Ad hunc diem Ired (h)�l)k day�m/. At this day. 
ADI. That amount of a particular chemical which Envi
ronmental Protection Agency considers safe for human 
ingestion every day for seventy years with no ill effects. 
Oregon Environmental Council v. Kunzman, D.Or., 636 
F.Supp. 632, 637. 
Ad idem Ired ayd�m/. To the same point, or effect. Ad 
idem tacit, it makes to or goes to establish the same 
point. 
A die confectionis ley dayiy k�nfekshiy6wn�s/. From 
the day of the making. 
A die datus ley dayiy deyt�s/. From the day of the 
date. Used in leases to determine the time or running 
of the estate, and when so used includes the day of the 
date. 
Adieu l�dyUw/. L. Fr. Without day. A common term 
in the Year Books, implying final dismissal from court. 
A digniori fieri debet denominatio ley digniy6ray 
fay�ray deb�t d�nom�neysh(iy)ow/. Denomination 
ought to be from the more worthy. The description (of a 
place) should be taken from the more worthy subject (as 
from a will). 
A digniori fieri debet denominatio et resolutio ley 
digniy6ray fay�ray deb�t d�nom�neysh(iy)ow et rez�l(y)� 
uwsh(iy)ow I. The title and exposition of a thing ought 
to be derived from, or given, or made with reference to, 
the more worthy degree, quality, or species of it. 
Ad inde Ired indiy/. Thereunto. Ad inde requisitus, 
thereunto required. 
Ad infinitum Ired infinayt�m/. Without limit; to an 
infinite extent; indefinitely. 
Ad inquirendum I red il)kw�rend�m/. To inquire; a writ 
of inquiry; a judicial writ, commanding inquiry to be 
made of anything relating to a cause pending in court. 
Ad instantiam Ired instrensh(iy)�m/. At the instance. 
Ad instantiam partis, at the instance of a party. 
Ad interim Ired int�r�m/. In the meantime. An officer 
ad interim is one appointed to fill a temporary vacancy, 
or to discharge the duties of the office during the ab
sence or temporary incapacity of its regular incumbent. 
Adiratus I red�reyt�s/. Lost; strayed; a price or value 
set upon things stolen or lost, as a recompense to the 
owner. 
Adjacent. Lying near or close to; sometimes, contig
uous; neighboring. Adjacent implies that the two ob-
ADJOURNED SUMMONS 
jects are not widely separated, though they may not 
actually touch, Harrison v. Guilford County, 218 N.C. 
718, 12 S.E.2d 269, while adjoining imports that they 
are so joined or united to each other that no third object 
intervenes. Wolfe v. Hurley, D.C.La., 46 F.2d 515, 521. 
See Adjoining. 
Adjective law. The aggregate of rules of procedure or 
practice. Also called adjectival law, as opposed to that 
body of law which the courts are established to adminis
ter (called "substantive law"), it means the rules accord
ing to which the substantive law is administered; e.g. 
Rules of Civil Procedure. That part of the law which 
provides a method for enforcing or maintaining rights, 
or obtaining redress for their invasion. Maurizi v. West
ern Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272. 
Pertains to and prescribes practice, method, procedure 
or legal machinery by which substantive law is enforced 
or made effective. Ambrose v. State Dept. of Public 
Health and Welfare, Mo.App., 319 S.W.2d 271, 274. See 
also Procedural law, Compare Substantive law. 
Adjoining. The word in its etymological sense means 
touching or contiguous, as distinguished from lying near 
to or adjacent. To be in contact with; to abut upon. 
State ex reI. Boynton v. Bunton, 141 Kan. 103, 40 P.2d 
326, 328. And the same meaning has been given to it 
when used in statutes. See Adjacent. 
Adjoining owners. Those persons who own land touch
ing the subject land and who, as a result, have right to 
notice of proceedings concerning the subject real estate 
as, for example, in zoning and licensing matters. Bay
port Civic Ass'n v. Koehler, Sup., 138 N.Y.S.2d 524, 530. 
See Abutting owner. 
Adjourn I �j�rn/. To put off; defer; recess; postpone. 
To postpone action of a convened court or legislative 
body until another time specified, or indefinitely; the 
latter being usually called to adjourn sine die. To 
suspend or recess during a meeting, legislature or as
sembly, which continues in session. Suspending busi
ness for a time, delaying. See Adjournment. 
Adjournamentum est ad diem dicere seu diem dare 
I �j:}rn�ment�m est re(d) day�m dis�rey syuw day�m 
derey I. An adjournment is to appoint a day or give a 
day. Hence the formula "eat sine die." 
Adjournatur I rej�rneyd�r I. L. Lat. It is adjourned. A 
word with which the old reports very frequently con
cluded a case. 
A continuation of the same meeting, and at such 
adjourned meeting the governing body can do any act 
which might have been done if no adjournment had 
taken place, and limitations imposed on governing body 
as regards action at original meeting obtain at ad
journed meeting. One ordered by board at regular 
meeting, and which is to convene after termination of 
such regular meeting and prior to next regular meeting. 
Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510, 513. 
Adjourned summons. A summons taken but in the 
chambers of a judge, and afterwards taken into court to 
be argued by counsel.

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ADJOURNED TERM 
Adjourned term. In practice, a continuance, by ad
journment, of a regular term. Distinguished from an 
"additional term," which is a distinct term. A continua
tion of a previous or regular term. The same term 
prolonged, wherein power of court over business which 
has been done, and the entries made at the regular 
term, continues. 
Adjournment. A putting off or postponing of business 
or of a session until another time or place. The act of a 
court, legislative body, public meeting, or officer, by 
which the session or assembly is dissolved, either tempo
rarily or finally, and the business in hand dismissed 
from consideration, either definitely or for an interval. 
If the adjournment is final, it is said to be sine die. See 
also Recess. 
Adjournment day. A further day appointed by the 
judges at the regular sittings at nisi prius to try issue of 
fact not then ready for trial. 
Adjournment day in error. In old English practice, a 
day appointed some days before the end of the term at 
which matters left undone on the af firmance day are 
finished. 
Adjournment in eyre / ;:)j�rnm;:)nt in er /. In English 
law, the appointment of a day when the justices in eyre 
mean to sit again. 
Adjournment sine die /;:)j�rnm;mt sayniy day(iy)l"s iy
ney diyey /. An adjournment without setting a time for 
another meeting or session. See Sine die. 
Adjudge /;:)j�j/. To pass on judicially, to decide, settle, or 
decree, or to sentence or condemn. People v. Rave, 364 
Ill. 72, 3 N.E.2d 972, 975. Judgment of a court of 
competent jurisdiction; equivalent of convicted and sen
tenced. Implies a judicial determination of a fact, and 
the entry of a judgment. See also Adjudication; Judg
ment. 
Adjudicate / ;:)juwd;:)keyt/ . To settle in the exercise of 
judicial authority. To determine finally. Synonymous 
with adjudge in its strictest sense. United States v. 
Irwin, 127 U.S. 125, 8 S.Ct. 1033, 32 L.Ed. 99. 
Adjudicated rights. Rights which have been recognized 
in a judicial or administrative proceeding. 
Adjudicatee / ;:)juwd;:)keytiy / . In French and civil law, 
the purchaser at a judicial sale. 
Adjudicatio /;:)juwd;:)keysh(iy)ow/. In the civil law, an 
adjudication. The judgment of the court that the sub
ject matter is the property of one of the litigants; confir
mation of title by judgment. 
Adjudication / ;:)juwd;:)keysh;:)n/ . The legal process of 
resolving a dispute. The formal giving or pronouncing a 
judgment or decree in a court proceeding; also the 
judgment or decision given. The entry of a decree by a 
court in respect to the parties in a case. Samuel 
Goldwyn, Inc. v. United Artists Corporation, C.C.A.Del., 
113 F.2d 703, 706. It implies a hearing by a court, after 
notice, of legal evidence on the factual issue(s) involved. 
Genzer v. Fillip, Tex.Civ.App., 134 S.W.2d 730, 732. The 
equivalent of a "determination ." Campbell v. Wyoming 
42 
Development Co., 55 Wyo. 347, 100 P.2d 124, 132. It 
contemplates that the claims of all the parties thereto 
have been considered and set at rest. Miller v. Scobie, 
152 Fla. 328, 11 So.2d 892, 894. See Administrative 
adjudication; Judgment. 
Adjudicative claims arbitration. This form of dispute 
resolution is concerned primarily with tort and other 
claims involving small amounts as distinguished from 
the traditional categories of arbitration in the fields of 
labor, commerce and international trade. Designed to 
relieve courts of burden of handling such cases. 
Adjudicative facts. Factual matters concerning the 
parties to an administrative proceeding as contrasted 
with legislative facts which are general and usually do 
not touch individual questions of particular parties to a 
proceeding. Facts which concern a person's motives and 
intent, as contrasted with general policy issues. U. S. v. 
Bishop Processing Co., D.C.Md., 287 F.Supp. 624, 633. 
Those facts that must be found beyond a reasonable 
doubt by trier of fact before there can be a conviction. 
Sundberg v. State, Alaska App., 667 P.2d 1268, 127 1. 
"Adjudicative facts," of which trial court may take 
notice if fact is not subject to reasonable dispute, are 
those to which law is applied in process of adjudication; 
they are facts that, in jury case, normally go to jury. 
Grason Elec. Co. v. Sacramento Mun. Utility Dist., D.C. 
Cal., 571 F.Supp. 1504, 1521. 
Adjudicatory action. Administrative actions are "adju
dicatory" in character when they culminate in final 
determination affecting personal or property rights. Al
legheny Ludlum Steel Corp. v. Pennsylvania Public Util
ity Com'n, 501 Pa. 71, 459 A.2d 1218, 1221. See also 
Adjudicatory hearing; Adjudicatory process. 
Adjudicatory hearing. A proceeding before an admin
istrative agency in which the rights and duties of partic
ular persons are adjudicated after notice and opportuni
ty to be heard. 
Adjudicatory proceeding. See Adjudicatory action; Ad
judicatory hearing; Adjudicatory process. 
Adjudicatory process. Method of adjudicating factual 
disputes; used generally in reference to administrative 
proceedings in contrast to judicial proceedings. 
Adjudicataire /;:)juwd;:)k;:)ch;:)r/. In Canadian law, a pur
chaser at a sheriffs sale. 
Ad judicium hM juwdish(iy);:)m/. To judgment; to 
court. Ad judicium provocare; to summon to court; to 
commence an action; a term of the Roman law. 
Adjunct /rej�lJktl. Something added to another, but in a 
subordinate, auxiliary, or dependent position. See also 
Appurtenance. 
One associated with another in a subordinate or an 
auxiliary manner; an associate. 
Adjunction / ;:)j�lJ(k)sh;:)n/ . Adding, affixing or attaching 
to another. Act of adjoining. In civil law, the attach
ment or union permanently of a thing belonging to one 
person to that belonging to another. The common law 
implicitly adopts the civil law doctrines. See Accession.

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43 
Adjunctum accessorium I ;}j:}IJkt;}m reks;}soriy;}m/. An 
accessory or appurtenance. 
Ad jungendum auxilium lre(d) j�njend;}m ogzil(i)y;}m/. 
To join in aid. See Aid prayer. 
Ad jura regis lre(d) jura riyj;}s/. To the rights of the 
king; a writ which was brought by the king's clerk, 
presented to a living against those who endeavored to 
eject him, to the prejudice of the king's title. 
Adjuration lrej;}reysh;}n/. A swearing or binding upon 
oath. 
Adjust. To settle or arrange; to free from differences or 
discrepancies. To bring to satisfactory state so that 
parties are agreed, as to adjust amount of loss by fire or 
controversy regarding property or estate. To bring to 
proper relations; to settle. To determine and apportion 
an amount due. Accounts are adjusted when they are 
settled and a balance is struck. Term is sometimes used 
in the sense of pay, when used in reference to a liqui
dated claim. Combination Oil & Gas Co. v. Brady, 
Tex.Civ.App ., 96 S.W.2d 415, 416. Determination of 
amount to be paid to insured by insurer to cover loss or 
damage sustained. See Adjuster; Adjustment; Settle
ment. 
Adjustable-rate mortgage (ARM). See Mortgage. 
Adjusted basis. The cost or other basis of property 
reduced by depreciation allowed or allowable and in
creased by capital improvements. See Basis. 
Adjusted cost basis. For income tax purposes, original 
cost plus additions to capital less depreciation results in 
the "adjusted cost basis." Herder v. Helvering, 70 U.S. 
App.D.C. 287, 106 F.2d 153, 162. 
Adjusted gross estate. The gross estate less I.R.C. 
§§ 2053 and 2054 expenses equals the adjusted gross 
estate. Generally, I.R.C. §§ 2053 and 2054 expenses 
include administration expenses, debts of the decedent, 
and losses incurred during the settlement of the estate. 
Fifty percent of the adjusted gross estate measures the 
maximum amount of the marital deduction allowed for 
death tax purposes. See Administration expense; Gross 
estate; Marital deduction. 
Adjusted gross income. A tax determination peculiar 
to individual taxpayers. Generally, it represents gross 
income less business expenses, expenses attributable to 
the production of rent or royalty income, the allowed 
capital loss deduction, and certain personal expenses. 
See also Gross income. 
Adjusted ordinary gross income. A determination pe
culiar to the personal holding company tax imposed by 
I.R.C. § 54 1. Adjusted ordinary gross income is the 
corporation's gross income less capital gains, § 1231 
gains, and certain expenses. 1.R.c. § 543(b)(2). See also 
Personal holding company income. 
Adjuster. One appointed to ad just a matter; to ascer
tain or arrange or settle. One who makes any adjust
ment or settlement, or who determines the amount of a 
claim, as a claim against an insurance company. A 
representative of the insurer who seeks to determine the 
AD MAJOREM CAUTELAM 
extent of the firm's liability for loss when a claim is 
submitted. A person who acts for the insurance compa
ny or the insured in the determination and settlement of 
claims. "P ublic" adjusters represent claimants only in 
presenting their claims to insurer. "Average" adjusters 
sp�cialize in adjusting marine losses. See Claim adjuster; 
Claimant adjuster; Independent adjuster. 
Adjusting entry. An accounting entry made at the end 
of an accounting period to record previously unrecogniz
ed revenue and expenses and changes in assets and 
liabilities. An adjusting entry can also occur as a result 
of an error made in a prior period, requiring an adjust
ing or correcting entry in the current period. 
Adjustment. An arrangement; a settlement. In the 
law of insurance, the adjustment of a loss is the ascer
tainment of its amount and the ratable distribution of it 
among those liable to pay it. The settling and ascertain
ing the amount of the indemnity which the assured, 
after all allowances and deductions made, is entitled to 
receive under the policy, and fixing the proportion 
which each underwriter is liable to pay. 
In tax practice, the correction of erroneous determina
tion of deficiency. Hopper v. Government of Virgin 
Islands, C.A. Virgin Islands, 550 F.2d 844, 847. 
Adjustment board. See Board of adjustment. 
Adjustment bond. See Bond. 
Adjustment securities. Stocks and bonds which are 
issued during a corporate reorganization. 
Adjutant general lrej;}d;}n(t) jen(;})r;}l/. An officer in 
charge of the National Guard of one of the States. The 
administrative head of a military unit having a general 
staff. 
Adjuvari quippe nos, non decipi, beneficio oportet 
lrejuwveray kwipiy nows, non des;}pay, ben;}
fish(iy)ow;}port;}t/. We ought to be favored, not injured 
by that which is intended for our benefit. (The species 
of bailment called "loan" must be to the advantage of 
the borrower, not to his detriment.) 
Ad largum Ired larg;}m/. At large; as, title at large; 
assize at large. Also at liberty; free, or unconfined. Ire 
ad largum, to go at large. A special verdict was former
ly called a verdict at large. 
Adlegiare lredliyjiyeriy/. To purge one's self of a crime 
by oath. 
Ad libitum I red libit;}m/. At pleasure. 3 Bl.Comm. 292. 
Ad litem I red layt;}m/. For the suit; for the purposes of 
the suit; pending the suit. A guardian ad litem is a 
guardian appointed to prosecute or defend a suit on 
behalf of a party incapacitated by infancy or otherwise. 
Ad lucrandum vel perdendum Ired l(y)uwkrrend;}m vel 
p;}rdend;}m/. For gain or loss. Emphatic words in the 
old warrants of attorney. Sometimes expressed in Eng
lish, "to lose and gain." 
Ad majorem cautelam Ired m;}jor;}m kotiyl;}m/. For 
greater security.

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ADMANUENSIS 
Admanuensis I redmrenyuwEms;)s/. A person who swore 
by laying his hands on the book. 
Ad manum I red meyn;)m/. At hand; ready for use. Et 
querens sectam habeat ad manum; and the plaintiff 
immediately have his suit ready. 
Admeasurement lredmezh;)rm;)nt/. Ascertainment by 
measure; measuring out; assignment or apportionment 
by measure, that is, by fixed quantity or value, by 
certain limits, or in definite and fixed proportions. 
Admeasurement of dower. A common law remedy 
which lay for the heir on reaching his majority to rectify 
an assignment of dower made during his minority, by 
which the doweress had received more than she was 
legally entitled to. 
Admeasurement of pasture. In English law, a writ 
which lay between those that had common of pasture 
appendant, or by vicinage, in cases where any one or 
more of them surcharged the common with more cattle 
than they ought. This remedy has long been abolished 
in England and in the United States. 
Admeasurement, writ of. A common law remedy 
which lay against persons who usurped more than their 
share, in the two following cases: Admeasurement of 
dower, and admeasurement of pasture. 
Ad medium filum aqure Ired miydiy;)m fayl;)m rekwiy/. 
To the middle thread of the stream. See Ad filum aqure. 
Ad medium filum vire I red miydiy;)m fayl;)m vayiy I. To 
the middle thread of the way. 
Ad melius inquirendum I red miyliy;)s inkw;)rend;)m/. 
A writ directed to a coroner commanding him to hold a 
second inquest. 
Admensuratio lredmensy;)reysh(iy)ow/. In old English 
law, admeasurement. 
Adminicle I redmin;)k;)l/. Used as an English word in 
the statute of 1 Edw. IV, c. 1, in the sense of aid, or 
support. In civil law, imperfect proof. See Adminiculum. 
Adminicular I redm;)niky;)l;)r I. Auxiliary or subordinate 
to. "The murder would be adminicular to the robbery" 
(i. e., committed to accomplish it). 
Adminicular evidence lredm;)niky;)br evid;)ns/. Auxil
iary or supplementary evidence; such as is presented for 
the purpose of explaining and completing other evi
dence. (Chiefly used in ecclesiastical law.) 
Adminiculate I redm;)niky;)leytl . To give adminicular 
evidence. 
Adminiculator I redm;)niky;)leyt;)r I. An officer in the 
Roman Catholic Church who administered to the wants 
of widows, orphans, and afflicted persons. 
Adminiculum I redm;)niky;)l;)m/. Lat. An adminicle; a 
prop or support; an accessory thing. An aid or support 
to something else, whether a right or the evidence of 
one. It is principally used to designate evidence ad
duced in aid or support of other evidence, which without 
it is imperfect. 
44 
Administer. To manage or conduct. Glocksen v. 
Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To discharge 
the duties of an office; to take charge of business; to 
manage affairs; to serve in the conduct of affairs, in the 
application of things to their uses; to settle and distrib
ute the estate of a decedent. Also, to give, as an oath; 
to direct or cause to be taken. 
To "administer" a decree is to execute it, to enforce its 
provisions, to resolve conflicts as to its meaning, to 
construe and to interpret its language. U. S. v. Hennen, 
D.C.Nev., 300 F.Supp. 256, 263. 
To "administer" trusts is to manage, direct or superin
tend affairs of such trusts. Wisconsin Dept. of Taxation 
v. Pabst, 15 Wis.2d 195, 11 2 N.W.2d 161, 164, 165. 
To apply, as medicine or a remedy; to give, as a dose 
of something beneficial or suitable. Barfield v. State, 71 
Okl.Cr. 195, 11 0 P.2d 316, 317. To cause or procure a 
person to take some drug or other substance into his or 
her system; to direct and cause a medicine, poison, or 
drug to be taken into the system. 
Administration. Management or conduct of an office or 
employment; the performance of the executive duties of 
an institution, business, or the like. In public law, the 
administration of government means the practical 
management and direction of the executive department, 
or of the public machinery or functions, or of the opera
tions of the various organs or agencies. Direction or 
oversight of any office, service, or employment. Greene 
v. Wheeler, C.C.A.Wis., 29 F.2d 468, 469. The term 
"administration" is also conventionally applied to the 
whole class of public functionaries, or those in charge of 
the management of the executive department. 
Administration expense. Administrative expenses im
ply disbursements incidental to the management of the 
estate which are deductible in computing estate taxes. 
Deductions are allowed for such expenses or claims only 
to the extent that they "are allowable by the laws of the 
jurisdiction" under which the estate is being adminis
tered. I.R.C. § 2053. 
Administration letters. The instrument by which an 
administrator or administratrix is authorized by the 
probate court, surrogate, or other proper officer, to have 
the charge and administration of the goods and property 
of an intestate. See Administrator. 
Administration of estates. The management and set
tlement of the estate of an intestate decedent, or of a 
testator who has no executor, performed under the su
pervision of a court, by a person duly qualified and 
legally appointed, and usually involving: (1) the collec
tion of the decedent's assets; (2) payment of debts and 
claims against the estate; (3) payment of estate taxes; 
(4) distribution of the remainder of the estate among 
those entitled thereto. The administration of an estate 
runs from the date of an individual's death until all 
assets have been distributed and liabilities paid. Such 
administration is conducted by an administrator or an 
executor. See Admin istrator; Letters of adminis tration. 
Administration of estates is principally of the follow
ing kinds:

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45 
Ad colligendum bona defuneti. To collect the goods of 
the deceased. Special letters of administration granted 
to one or more persons, authorizing them to collect and 
preserve the goods of the deceased. 
Ad prosequendum. An administrator appointed to pros
ecute or defend a certain action (e.g. wrongful death) or 
actions in which the estate is concerned. 
Ancillary administration is auxiliary and subordinate to 
the administration at the place of the decedent's domi
cile; it may be taken out in any foreign state or country 
where assets are locally situated, and is merely for the 
purpose of collecting such assets and paying debts there. 
Cum testamento annexo (CT A). Administration with the 
will annexed. Administration granted in cases where a 
testator makes a will without naming any executors; or 
where the executors who are named in the will are 
incompetent to act, are deceased, or refuse to act. 
De bonis non (DBN). Administration granted for the 
purpose of administering such of the goods of a deceased 
person as were not administered by the former executor 
or administrator. 
De bonis non cum testamento annexo (DBNCTA). That 
which is granted when an executor dies leaving a part of 
the estate unadministered. 
Durante absentia. That which is granted during the 
absence of the executor and until he has proved the wilL 
Durante minori retate. Exists where an infant is made 
executor, in which case administration with will an
nexed is granted to another during the minority of such 
executor, and until he shall attain his lawful age to act. 
Foreign administration. That which is exercised by 
virtue of authority properly conferred by a foreign pow
er. 
General administration. The grant of authority to ad
minister upon the entire estate of a decedent, without 
restriction or limitation, whether under the intestate 
laws or with the will annexed. 
Pendente lite. Administration granted during the pend
ency of a suit touching the validity of a will. 
Public administration is such as is conducted (in some 
jurisdictions) by an officer called the public administra
tor, who is appointed to administer in cases where the 
intestate has left no person entitled to apply for letters. 
Special administration. Authority to administer upon 
some few particular effects of a decedent, as opposed to 
authority to administer his whole estate. 
Administrative. Connotes of or pertains to administra
tion, especially management, as by managing or con
ducting, directing, or superintending, the execution, ap
plication or conduct of persons or things. Fluet v. 
McCabe, 299 Mass. 173, 12 N.E.2d 89, 93. Particularly, 
having the character of executive or ministerial action. 
Mauritz v. Schwind, Tex.Civ.App., 101 S.W.2d 1085, 
1090. In this sense, administrative functions or acts are 
distinguished from such as are judiciaL People ex reL 
Van Sickle v. Austin, 20 App.Div. 1, 46 N.Y.S. 526. 
ADMINISTRATIVE CRIME 
Administrative acts. Those acts which are necessary to 
be done to carry out legislative policies and purposes 
already declared by the legislative body or such as are 
devolved upon it by the organic law of its existence. Ex 
parte McDonough, 27 CaLApp.2d 155, 80 P.2d 485, 487. 
Administrative adjudication. The process by which an 
administrative agency issues an order, such order being 
affirmative, negative, injunctive or declaratory in form. 
Adm. Procedure Act, 5 U.S.C.A. § 55 1. 
Administrative agency. A governmental body charged 
with administering and implementing particular legisla
tion. Examples are worker's compensation commis
sions, Federal Trade Commission, Hastings Mfg. Co. v. 
Federal Trade Commission, C.C.A.6 th, 153 F.2d 253, 
certiorari denied 328 U.S. 853, 66 S.Ct. 1344, 90 L.Ed. 
1626; tax commissions, First State Bank of Mountainair 
v. State Tax Commission, 40 N.M. 319, 59 P.2d 667; 
public service commissions, New York Cent. R. Co. v. 
Public Service Commission, 212 Ind. 329, 7 N.E.2d 957; 
and the like. In addition to "agency", such governmen
tal bodies may be called commissions, corporations (e.g. 
F.D.I.C.), boards, departments, or divisions. 
The term "agency" includes any department, indepen
dent establishment, commission, administration, author
ity, board or bureau of the United States or any corpora
tion in which the United States has a proprietary inter
est, unless the context shows that such term was intend
ed to be used in a more limited sense. 18 U.S.C.A. § 1. 
Administrative authority. The power of an agency or 
its head to carry out the terms of the law creating the 
agency as well as to make regulations for the conduct of 
business before the agency; distinguishable from legisla
tive authority to make laws. 
Administrative board. This term is very broad and 
includes bodies exercising varied functions, some of 
which involve orders made or other acts done ex parte 
or without full hearing as to the operative facts, while 
others are done only after such a notice and hearing, 
and the functions of the former kind are plainly "admin
istrative" and those of the latter are "quasi judiciaL" 
Beaverdale Memorial Park v. Danaher, 127 Conn. 175, 
15 A.2d 17, 21. Administrative boards differ from 
"courts" in that boards frequently represent public in
terests entrusted to boards, whereas courts are con
cerned with litigating rights of parties with adverse 
interests. Rommell v. Walsh, 127 Conn. 16, 15 A.2d 6, 9. 
Administrative collateral estoppel. Principles of this 
estoppel doctrine apply when agency is acting in a 
judicial capacity and resolves disputed issues of fact 
properly before it which parties have had adequate 
opportunity to litigate; threshold inquiry is whether 
earlier proceeding is essential equivalent of judicial pro
ceeding. City Wide Learning Center, Inc. v. William C. 
Smith & Co., Inc., D.C.App., 488 A.2d 1310, 1313. 
Administrative crime. An offense consisting of a viola
tion of an administrative rule or regulation and carrying 
with it a criminal sanction.

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ADMINISTRATIVE DETERMINATION 
Administrative determination. See Administrative adju-
dication. . 
Administrative deviation. Departure from the admin
istrative provisions of a trust by the trustee acting alone 
or with prior approval of the court. Anderson v. Ry
land, 232 Ark. 335, 336 S.W.2d 52. 
Administrative discretion. Term means that the doing 
of acts or things required to be done may rest, in part at 
least, upon considerations not entirely susceptible of 
proof or disproof and at times which considering the 
circumstances and subject-matter cannot be supplied by 
the Legislature, and a statute confers such discretion 
when it refers a commission or office to beliefs, expecta
tions, or tendencies instead of facts for the exercise of 
the powers conferred. Culver v. Smith, Tex.Civ.App., 74 
S.W.2d 754, 757. 
Administrative exhaustion. See Exhaustion of adminis
trative remedies. 
Administrative hearing. An oral proceeding before an 
administrative agency consisting of argument or trial or 
both. Procedural rules are more relaxed at such hear
ings as contrasted with civil or criminal trials; e.g. rules 
governing admissibility of evidence are usually quite 
liberal. See also Hearing. 
Administrative interpretation. Meaning given to a 
law or regulation by an administrative agency. 
Administrative law. Body of law created by adminis
trative agencies in the form of rules, regulations, orders, 
and decisions to carry out regulatory powers and duties 
of such agencies. 
Administrative law judge. One who presides at an 
administrative hearing, with power to administer oaths, 
take testimony, rule on questions of evidence, regulate 
course of proceedings, and make agency determinations 
of fact. Formerly called "hearing officer" or "hearing 
examiner". Adm. Procedure Act, 5 U.S.C.A. § 556. 
Administrative office of United States courts. Cre
ated by the Administrative Office Act of 1939, it is 
responsible for administration of the Federal court sys
tem, as a whole, including the collection of statistics on 
court business, supervision of administrative personnel 
in the courts and conducting of financial and manage
ment audits of courts. 
Administrative officer. Politically, and as used in con
stitutional law, an officer of the executive department of 
government, and generally one of inferior rank; legally, 
a ministerial or executive officer, as distinguished from 
a judicial officer. 
Administrative order. The final disposition of a matter 
before an administrative agency; product of an adminis
trative adjudication. Such order may be declaratory or 
it may contain an affirmative or negative command. 
Adm. Procedure Act, 5 U.S.C.A. § 554. 
A regulation issued by an administrative agency inter
preting or applying the provisions of a statute. Admin
istrative acts having force of law, designed to clarify or 
implement a law or policy. 
46 
Administrative procedure. Methods and processes be
fore administrative agencies as distinguished from judi
cial procedure which applies to courts. Procedural rules 
and regulations of most federal agencies are set forth in 
the Code of Federal Regulations. See also Administrative 
Procedure Act. 
Administrative Procedure Act. Federal. Law enacted 
in 1946 (60 Stat. 237, 5 U.S.C.A.) governing practice and 
proceedings before federal administrative agencies. 
State. Individual states have enacted variations of the 
federal Act, e.g. M.G.L.A. (Mass.) c. 30A. Such acts 
govern proceedings before state administrative agencies. 
Administrative process. In general, the procedure 
used before administrative agencies; in particular, the 
means of summoning witnesses before such agencies, e.g. 
subpoena. 
Administrative remedy. Procedure for allowing person 
to assert a right to some kind of relief before an admin
istrative agency. Daniels v. U.S., C.A.Cal., 372 F.2d 407, 
414. Non-judicial remedy provided by agency, board, 
commission, or the like. In most instances, all adminis
trative remedies must have been exhausted before a 
court will take jurisdiction of a case; e.g. U.S. District 
Courts will not consider a social security case unless all 
hearing, appeal, etc. remedies before the Social Security 
Administration have been exhausted. 
Administrative review. Generally refers to judicial 
review of administrative proceedings; may also embrace 
appellate review within the administrative agency itself. 
Adm. Procedure Act, 5 U.S.C.A. § 557. 
Administrative rule. Agency statement of general ap
plicability and continuing effect that interprets law or 
policy or describes agency's requirements. Matter of 
1982 Final Reconciliation Adjustment for Jersey Shore 
Medical Center, 209 N.J.S uper. 79, 506 A.2d 1269, 1272. 
Administrative rule-making. Power of an administra
tive agency to make rules and regulations for proceed
ings before it. Adm. Procedure Act, 5 U.S.C.A. § 553. 
Administrative tribunal. A particular administrative 
agency before which a matter may be heard or tried as 
distinguished from a judicial forum. 
Administrator(-trix). A person appointed by the court 
to administer (i.e., manage or take charge of) the assets 
and liabilities of a decedent (i.e., the deceased). Such 
person may be a male (i.e., administrator) or a female 
(i.e., administratrix). If the person performing these 
probate services is named by the decedent's will, he is 
designated as the executor, or she the executrix, of the 
estate. See also Executor. 
An instrumentality established by law for performing 
the acts necessary for transfer of effects left by deceased 
to those who succeed to their ownership. Behnke v. 
Geib, D.C.Md., 169 F.Supp. 647, 650. 
Domestic. One appointed at the place of the domicile of 
the decedent; distinguished from a foreign or an ancil
lary administrator.

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47 
Foreign. One appointed or qualified under the laws of a 
foreign state or country, where the decedent was domi
ciled. 
Public. An official provided for by statute in some 
states to administer upon the property of intestates in 
certain cases. 
Administrator ad litem / redminastreytar red laytam/. 
A special administrator appointed by court to supply a 
necessary party to an action in which deceased or his 
estate is interested. 
Administrator cum testamento annexo (C.T.A.) 
/redminastreytar kam testamentow aneksow/. See Cum 
testamento annexo. 
Administrator de bonis non (D.B.N.) /redminastreytar 
diy b6wnas non/. "Administrators de bonis non admin
istratis" are, as the term signifies, persons appointed by 
the court of probate to administer on the effects of a 
decedent which have not been included in a former 
administration. 
Administrator pendente lite lredminastreytar penden
tey laytiy /. A temporary administrator appointed be
fore an adjudication of intestacy has been made for 
purpose of preserving assets of the estate. 
Administrator with will annexed. One appointed ad
ministrator of deceased's estate after executors named 
in will have refused or are unable to act. 
Administratrix / adminastreytraks/. A female who ad
ministers, or to whom letters of administration have 
been granted. 
Admiralitas / redmarreiatres/. L. Lat. Admiralty; the 
admiralty, or court of admiralty. In European law, an 
association of private armed vessels for mutual protec
tion and defense against pirates and enemies. 
Admiralty. See Maritime. 
Admiralty court. A court exercising jurisdiction over 
all maritime contracts, torts, injuries, or offenses. Fed
eral district courts have jurisdiction over admiralty and 
maritime actions. 28 U.S.C.A. § 1333. Procedure in 
such actions is governed by the Fed.R. Civil P. and Supp. 
Admiralty Rules. See also Saving to suitors clause with 
respect to admiralty actions in state courts. 
Admiralty, First Lord of the. In England, formerly the 
normal head of the executive department of state which 
presided over the naval forces of the kingdom was the 
lord high admiral, but in practice the functions of the 
great office were discharged by several Lords Commis
sioners, of ' whom one, being the chief, was called the 
"First Lord," and was a member of the Cabinet. He was 
assisted by other lords, called Sea Lords, and by various 
secretaries. 
Admiralty law. The terms "admiralty" and "maritime" 
law are virtually synonymous. See Maritime law. 
Admissible. Pertinent and proper to be considered in 
reaching a decision. Used with reference to the issues 
to be decided in any judicial proceeding. 
ADMISSIONS 
Admissible evidence. As applied to evidence, the term 
means that the evidence introduced is of such a charac
ter that the court or judge is bound to receive it; that is, 
allow it to be introduced at triaL To be "admissible" 
evidence must be relevant, and, inter alia, to be "rele
vant" it must tend to establish material proposition. 
Smith v. State, Alaska, 431 P.2d 507, 509. Admissibility 
of evidence in federal courts is governed by Federal 
Rules of Evidence. Many states have similar evidence 
rules for their trial counts. See Evidence; Limited admis
sibil ity; Relevant evidence. 
Admission. Admission temporaire. Admission of goods 
into country duty-free for processing and eventual ex
port. 
Bail. The order of a competent court or magistrate that 
a person accused of crime be discharged from actual 
custody upon the taking of baiL 
Evidence. Ruling by trial judge that trier of fact, judge 
or jury, may consider testimony or document or other 
thing (real evidence) in determining ultimate question. 
See Evidence. 
Admissions. Confessions, concessions or voluntary ac
knowledgments made by a party of the existence of 
certain facts. More accurately regarded, they are state
ments by a party, or some one identified with him in 
legal interest, of the existence of a fact which is relevant 
to the cause of his adversary. 
A voluntary acknowledgement made by a party of the 
existence of the truth of certain facts which are incon
sistent with his claims in an action. Vockie v. General 
Motors Corp., Chevrolet Division, D.C.Pa., 66 F.R.D. 57, 
60. An admission is not limited to words, but may also 
include the demeanor, conduct and acts of the person 
charged with a crime. People v. Baldi, 80 Misc.2d 11 8, 
362 N.Y.S.2d 927, 933. 
Admissions against interest. A statement made by one 
of the parties to an action which amounts to a prior 
acknowledgment by him that one of the material facts 
relevant to the issues is not as he now claims. Nagel v. 
Hopingardner, Tex.Ci v.App., 464 S.W.2d 472, 476. Any 
statements made by or attributable to a party to an 
action, which constitute admissions against his interest 
and tend to establish or disprove any material fact in 
the case. Kellner v. Whaley, 148 Neb. 259, 27 N.W.2d 
183, 189. 
Admissions by party-opponent. A statement is not hear
say if the statement is offered against a party and is (A) 
his own statement, in either his individual or a repre
sentative capacity, or (B) a statement of which he has 
manifested his adoption or belief in its truth, or (C) a 
statement by a person authorized by him to make a 
statement concerning the subject, or (D) a statement by 
his agent or servant concerning a matter within the 
scope of his agency or employment, made during the 
existence of the relationship, or (E) a statement by a 
coconspirator of a party during the course and in fur
therance of the conspiracy. Fed.Evid.R. 801(d)(2).

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ADMISSIONS 
Admissions by silence. If a statement is made by anoth
er person in the presence of a party to the action, 
containing assertions of facts which, if untrue, the party 
would under all the circumstances naturally be expected 
to deny, his failure to speak has traditionally been 
receivable against him as an admission. Failure of one 
not under arrest to respond by denial to accusation of 
crime, or element of crime, may be construed as admis
sion of guilt if such person understood accusation and 
could have responded. See also Estoppel; Silence. 
Adoptive admission. Action by a party in which he 
approves statement of one for whom he is responsible 
thereby accepting truth of statement. Silence, actions, 
or statements which manifest assent to the statements 
of another person. Such may be received into evidence 
as admissions of the defendant if it can be shown that 
the defendant adopted the statements as his own. See 
Fed.Evid.R. 801(d)(2)(B). 
Criminal admissions. A statement by accused, direct or 
implied, of facts pertinent to issue, and tending, in 
connection with proof of other facts, to prove his guilt. 
State v. Johnson, 277 Minn. 368, 152 N.W.2d 768, 773. 
The avowal of a fact or of circumstances from which 
guilt may be inferred, but only tending to prove the 
offense charged, and not amounting to a confession of 
guilt. A statement by defendant of fact or facts perti
nent to issues tending, in connection with proof of other 
facts or circumstances, to prove guilt, but which is, of 
itself, insufficient to authorize conviction. Does not 
include statements which are part of the res gestae. 
State v. Clark, 102 Mont. 432, 58 P.2d 276, 278. 
Discovery practice. Requests for admissions in civil ac
tions are governed by Fed.R. Civil P. 36. Any matter 
admitted under Rule 36 is conclusively established un
less the court on motion permits withdrawal or amend
ment of the admission. See Request (Request for admis
sion); Stipulation. 
Distinguished from confession. A confession is a state
ment admitting or acknowledging all facts necessary for 
conviction of the crime. An admission, on the other 
hand, is an acknowledgment of a fact or facts tending to 
prove guilt which falls short of an acknowledgment of 
all essential elements of the crime. Gladden v. Uns
worth, 9th Cir., 396 F.2d 373, 375 n. 2; People v. Fitzger
ald, 56 Cal.2d 855, 861, 17 Cal.Rptr. 129, 132, 366 P.2d 
481, 484. The term "admission" is usually applied to 
civil transactions and to those matters of fact in crimi
nal cases which do not involve criminal intent, while the 
term "confession" is generally restricted to acknowledg
ments of guilt. People v. Sourisseau, 62 Cal.App.2d 917, 
145 P.2d 916, 923. 
Extrajudicial admissions. Those made outside of count. 
Implied admissions are those which result from some 
act or failure to act of the party; e.g. part payment of a 
debt is an admission of liability to pay debt. 
Incidental admissions are those made in some other 
connection, or involved in the admission of some other 
fact. 
48 
Judicial admissions are those made in court by a per
son's attorney for the purpose of being used as a substi
tute for the regular legal evidence of the facts at the 
trial. A formal waiver of proof that relieves opposing 
party from making proof of admitted fact and bars party 
who made admission from disputing it. E- Tex Dairy 
Queen, Inc. v. Adair, Tex.Civ.App., 566 S.W.2d 37, 39. 
Such as are made voluntarily by a party, which appear 
of record in the proceedings of the court. Formal acts 
done by a party or his attorney in court on the trial of a 
cause for the purpose of dispensing with proof by the 
opposing party of some fact claimed by the latter to be 
true. Hofer v. Bituminous Gas. Corp., 260 Iowa 81, 148 
N.W.2d 485, 486. 
Pleading. The acknowledgment or recognition by one 
party of the truth of some matter alleged by the opposite 
party, made in a pleading, the effect of which is to 
narrow the area of facts or allegations required to be 
proved by evidence. Averments in a pleading to which 
a responsive pleading is required are admitted when not 
denied in the responsive pleading. Fed.R. Civil P. 8(d). 
Quasi admission. See that title. 
Request for admission. See Request. 
Tacit admissions. See Tacit admissions. 
Admissions tax. Form of tax imposed as part of price of 
being admitted to a particular function or event. 
Admission to sufficient facts. Also called "submission 
to a finding", means an admission to facts sufficient to 
warrant a finding of guilty. Com. v. Duquette, 386 
Mass. 834, 438 N .E.2d 334, 338. 
Admit. See Admission; Admissions. 
Admittance. In English law, the act of giving possession 
of a copyhold estate. It is of three kinds: (1) Upon a 
voluntary grant by the lord, where the land has escheat
ed or reverted to him. (2) Upon surrender by the former 
tenant. (3) Upon descent, where the heir is tenant on 
his ancestor's death. Copyholds were abolished by Part 
V of Law of Property Act 1922. Abolition took effect 
Jan. 1, 1926. See also, Copyhold; Surrender. 
Admittendo clerico / redm�tEmdow kler�kow /. An old 
English writ issuing to the bishop to establish the right 
of the Crown to make a presentation to a benefice. A 
writ of execution upon a right of presentation to a 
benefice being recovered in quare impedit, addressed to 
the bishop or his metropolitan, requiring him to admit 
and institute the clerk or presentee of the plaintiff. 
Admittendo in socium / redm�tendow in s6wshiy�m/. 
An old English writ for associating certain persons, as 
knights and other gentlemen of the county, to justices of 
assize on the circuit. 
Admixture / redmiks(h)ch�r /. A substance formed by 
mixing; state of being mixed; act of mixing. 
Admonish /redm6n�sh/. To caution or advise. To coun
sel against wrong practices, or to warn against danger of 
an offense. See Admonition.

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49 
Admonition I redm:mish�n/. Any authoritative oral 
communication or statement by way of advice or caution 
by the court to the jury respecting their duty or conduct 
as jurors, the admissibility or nonadmissibility of evi
dence, or the purpose for which any evidence admitted 
may be considered by them. Reprimand or cautionary 
statement addressed to counsel by judge. 
In English law, a reprimand from a judge to a person 
accused, on being discharged, warning him of the conse
quences of his conduct, and intimating to him that, 
should he be guilty of the same fault for which he has 
been admonished, he will be punished with greater 
severity. The admonition was authorized as a species of 
punishment for slight misdemeanors. In ecclesiastical 
law, this is the lightest form of punishment. 
Admonitio trina lredm�nishiyow trayn�/. The threefold 
warning given to a prisoner who stood mute, before he 
was subjected to peine forte et dure (q.v.). 4 Bl.Comm. 
325. 
Ad mordendum assuetus I red mord{md�m �swiyt�sl. 
Accustomed to bite. A material averment in declara
tions for damage done by a dog to persons or animals. 
Admortization I redmort�zeysh�n/. In feudal customs, 
the reduction of property of lands or tenements to mort
main. 
Adnepos I redn�powsl . The son of a great-great-grand
son. 
Adneptis I rednept�sl . The daughter of a great-great
granddaughter. 
Adnichiled lrednik�ld/. Annulled, canceled, made void. 
Adnihilare lrednay(h)�leriy/. In old English law, to 
annul; to make void; to reduce to nothing; to treat as 
nothing; to hold as or for nought. 
Ad nocumentum Ired noky�ment�m/. To the nuisance, 
or annoyance; to the hurt or injury. Ad nocumentum 
liberi tenementi sui, to the nuisance of his freehold. 
Formal words in the old assise of nuisance. 3 Bl.Comm. 
221. 
Adnotatio lrednowteysh(iy)ow/. In the civil law, the 
subscription of a name or signature to an instrument. 
A rescript (q.v.) of the prince or emperor, signed with his 
own hand, or sign-manual. In the imperial law, casual 
homicide was excused by the indulgence of the emperor, 
signed with his own sign-manual, annotatione principis. 
4 Bl.Comm. 187. 
Ad officium justiciariorum spectat, unicuique coram 
eis placitanti justitiam exhibere Ired �fish(iy)�m j�sti
shiyeriy6r�m spekt�t yuwn�k(yuw)aykwiy k6r�m iy�s 
plres�trentay j:)stish(iy )�m eks�biriy I. It is the duty of 
justices to administer justice to every one pleading be
fore them. 
Adolescence. That age which follows puberty and pre
cedes the age of majority. 
Ad omissa vel male appretiata I red �mis� vel mreliy 
�priysh(iy)eyt�/. With relation to omissions or wrong 
interpretations. 
AD PUNCTUM TEMPORIS 
Adopt. To accept, appropriate, choose, or select. To 
make that one's own (property or act) which was not so 
originally. To accept, consent to, and put into effective 
operation; as in the case of a constitution, constitutional 
amendment, ordinance, court rule, or by-law. 
Adoption. Legal process pursuant to state statute in 
which a child's legal rights and duties toward his natu
ral parents are terminated and similar rights and duties 
toward his adoptive parents are substituted. To take 
into one's family the child of another and give him or 
her the rights, privileges, and duties of a child and heir. 
The procedure is entirely statutory and has no historical 
basis in common law. Most adoptions are through agen
cy placements. See Adoption by estoppel; De facto adop
tion; Equitable adoption; Placement; Private placement 
(Adoption). 
A contract principle by which a person agrees to 
assume a contract previously made for his or her bene
fit. An adoption speaks only from the time such person 
agrees, in contrast to a "ratification" which relates back 
to the time the original contract was made. In corpora
tion law, the concept is applied when a newly formed 
corporation accepts a preincorporation contract made 
for its benefit by a promoter. 
Adoption by estoppel. Equitable adoption of a child by 
promises and acts which preclude such person and his 
estate from denying adopted status to child. Heien v. 
Crabtree, Tex., 369 S.W.2d 28, 30. See also Equitable 
adoption. 
Adoption by reference. Statement in writing by which 
another statement in a separate writing is incorporated 
by reference. Statement in pleading may be adopted by 
reference in a different part of same pleading or in 
another pleading or motion. Fed.R. Civil P. 10(c). 
Adoptive act. An act of legislation which comes into 
operation within a limited area upon being adopted, in 
manner prescribed therein, by the inhabitants of that 
area. 
Ad opus I red 6wp�sl. To the work. 
Ad ostendendum I red ost�ndend�m/. To show. Formal 
words in old writs. 
Ad ostium ecclesire I red 6stiy�m �kliyziyiy I. At the 
door of the church. One of the five species of dower 
formerly recognized by the English law. 2 Bl.Comm. 
132. 
Ad pios usus I red payows yuwz�sl. Lat. 
(religious or charitable) uses or purposes. 
reference to gifts and bequests. 
For pious 
Used with 
Ad prosequendam I red pros�kwend�m/. To prosecute. 
Ad proximum antecedens fiat relatio nisi impediatur 
sententia I red pr6ks�m�m rent�siydenz fayret 
r�leysh(iy)ow naysay impiydiyeyt�r sentensh(iy)�/. Rel
ative words refer to the nearest antecedent, unless it be 
prevented by the context. Brown v. Brown, Del., 3 
Terry 157, 29 A.2d 149, 153. 
Ad punctum temporis Ired p�IJkt�m temp�r�sl. At the 
point of time.

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AD QUJERIMONIAM 
Ad qurerimoniam Ired kwir:;tmowniy:;tm/. On complaint 
of. 
Ad qurestionem facti non respondent judices; ad 
qurestionem juris non respondent juratores I red 
kwes(h)chiyown:;tm frektay non r:;tspond:;tnt juwd:;tsiyz; red 
kwes(h)chiyown:;tm jur:;ts non r:;tspond:;tnt jur:;ttoriyz/. 
Means that juries must answer to questions of fact and 
judges to questions of law. Ex parte United States, 
C.C.A.Wis., 101 F.2d 870, 874. 
Ad qurestiones legis judices, et non juratores, respon
dent I red kwes(h)chiyowniyz liyj:;ts juwd:;tsiyz, et non 
jur:;ttoriyz, r:;tspond:;tntl. Judges, and not jurors, decide 
questions of law. 
Ad quem Ired kwem/. To which. A term used in the 
computation of time or distance, as correlative to a quo; 
denotes the end or terminal point. See A quo. 
The terminus a quo is the point of beginning or 
departure; the terminus ad quem, the end of the period 
or point of arrival. 
Ad questiones facti non respondent judices; ad ques
tiones legis non respondent juratores I red 
kwes(h)chiyowniyz frektay non r:;tspond:;tnt juwd:;tsiyz; red 
kwes(h)chiyowniyz liyj:;ts non r:;tspond:;tnt jur:;ttoriyz/. 
Judges do not answer questions of fact; juries do not 
answer questions of law. 
Adquieto I redkwayiytow I. Payment. 
Ad quod curia concordavit Ired kwod kyuriy:;t 
kOI]k:;trdeyv:;tt/. To which the court agreed. 
Ad quod damnum Ired kwo(d) damn:;tm/. The name of a 
writ formerly issuing from the English chancery, com
manding the sheriff to make inquiry "to what damage" 
a specified act, if done, will tend. 
It is a writ which ought to be sued before the king 
grants certain liberties, as a fair, market or such like, 
which may be pre judicial to others, and thereby it 
should be inquired whether it will be a prejudice to 
grant them, and to whom it will be prejudicial, and what 
prejudice will come thereby. 
There is also another writ of ad quod damnum, if any 
one will turn a common highway and lay out another 
way as beneficial. 
A "writ of ad quod damnum" is of ancient origin, and 
could be issued as a writ of right when landowner was 
dissatisfied with assessment of damages by condemna
tion commission. Lewis v. Du Pont, Del.Super., 2 Terry 
347, 22 A.2d 832, 834. 
Ad quod non fuit responsum I red kwod non fyuw:;tt 
r:;tspons:;tm/. To which there was no answer. A phrase 
used in old reports, where a point advanced in argument 
by one party was not denied by the other; or where a 
point or argument of counsel was not met or noticed by 
the court; or where an objection was met by the court, 
and not replied to by the counsel who raised it. 
A.D.R. See Alternative dispute resolution; Asset Deprecia
tion Range. 
50 
Ad rationem ponere I red reyshiyown:;tm pown:;triy I. To 
cite a person to appear. A technical expression in the 
old records of the Exchequer, signifying, to put to the 
bar and interrogate as to a charge made; to arraign on a 
trial. 
Ad recognoscendum Ired riykogn:;tsend:;tm/. To recog
nize. Formal words in old writs. 
Adrectare lredrekteriy/. To set right, satisfy, or make 
amends. 
Ad recte docendum oportet, primum inquirere nomi
na, quia rerum cognitio a nominibus rerum depen
det I red rektey dowsend:;tm owport:;tt, praym:;tm 
inkwayr:;triy nom:;tn:;t, kway:;t rir:;tm kognishiyow ey 
n:;tmin:;tb:;ts rir:;tm d:;tpEmd:;tt/. In order rightly to compre
hend a thing, inquire first into the names, for a right 
knowledge of things depends upon their names. 
Ad rectum I red rekt:;tm/. To right. To do right. To 
meet an accusation. To answer the demands of the law. 
Habeant eos ad rectum. They shall render themselves 
to answer the law, or to make satisfaction. 
Ad reparationem et sustentationem I red rep:;trey
shiyown:;tm et s�stenteyshiyown:;tm/. For repairing and 
keeping in suitable condition. 
Ad respondendum I red r:;tspondend:;tm/. For answering; 
to make answer. Words used in certain writs employed 
for bringing a person before the court to make answer in 
defense in a proceeding, as in habeas corpus ad respon
dendum and capias ad respondendum, q. v. 
Adrhamire lredr:;tmayriy/. In old European law, to un
dertake, declare, or promise solemnly; to pledge; to 
pledge one's self to make oath. 
Adrogation lredrowgeysh:;tn/. In the civil law, the adop
tion of one who was im pubes; that is, if a male, under 
fourteen years of age; if a female, under twelve. 
Ads. An abbreviation for ad sectam (q.v.), meaning "at 
the suit of." 
Ad satisfaciendum Ired sret:;tsfeyshiyend:;tm/. To satisfy. 
The emphatic words of the writ of capias ad satisfacien
dum, which requires the sheriff to take the person of the 
defendant to satisfy the plaintiffs claim. 
Adscendentes lredsendentiyz/. Lat. In the civil law, 
ascendants. 
Adscripti lredskriptay/. See Adscriptus. 
Adscripti glebre I redskriptay gliybiy I. Slaves who 
served the master of the soil, who were annexed to the 
land, and passed with it when it was conveyed. 
Adscriptitii I redskriptishiyay I. Lat. A species of serfs 
or slaves. Those persons who were enrolled and liable 
to be drafted as legionary soldiers. 
Adscriptus lredskript:;ts/. In the civil law, added, an
nexed, or bound by or in writing; enrolled, registered; 
united, joined, annexed, bound to, generally. Servus 
colonre adscriptus, a slave annexed to an estate as a 
cultivator. Fundus adscriptus, an estate bound to, or 
burdened with a duty.

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51 
Ad sectam I red sekt;)m/. At the suit of. Commonly 
abbreviated to ads. Used in entering and indexing the 
names of cases, where it is desired that the name of the 
defendant should come first. Thus, "B. ads. A" indi
cates that B. is defendant in an action brought by A, 
and the title so written would be an inversion of the 
more usual form "A. v. B." 
Adsessores I reds;)soriyzl . Side judges. Assistants or 
advisers of the regular magistrates, or appointed as 
their substitutes in certain cases. See Assessor. 
Adstipulator lredstipy;)leyt;)r/. In Roman law, an acces
sory party to a promise, who received the same promise 
as his principal did, and could equally receive and exact 
payment; or he only stipulated for a part of that for 
which the principal stipulated, and then his rights were 
coextensive with the amount of his own stipulation. 
One who supplied the place of a procurator at a time 
when the law refused to allow stipulations to be made by 
procuration. 
Ad terminum annorum Ired t�rm;)n;)m �nor;)m/. For a 
term of years. 
Ad terminum qui prreterit I red t�rm;)n;)m kway 
pred;)r;)t/. For a term which has passed. Words in the 
Latin form of the writ of entry employed at common law 
to recover, on behalf of a landlord, possession of premis
es from a tenant holding over after the expiration of the 
term for which they were demised. 
Ad testificandum Ired test;)f;)krend;)m/. To testify. 
Type of writ of habeas corpus used to bring prisoner to 
court to testify. See Habeas corpus. 
Ad tristem partem strenua est suspicio I red trist:lm 
part;)m strenyuw;) est s;)spish(iy)ow/. Suspicion lies 
heavy on the unfortunate side. 
Ad tunc et ibidem Ired t�nk ;)t ;)bayd;)m/"i b;)d;)m/. In 
pleading, the Latin name of that clause of an indictment 
containing the statement of the sUbject-matter "then 
and there being found." 
Adult. One who has attained the legal age of majority; 
generally 18 years. At civil law, a male who had 
attained the age of 14; a female who had attained the 
age of 12. See Legal age; Majority. 
Adulter /;)d�lt:lr I. One who corrupts; one who seduces 
another man's wife. Adulter solidorum. A corruptor of 
metals; a counterfeiter. 
Adultera l;)d�lt;)r;)/. In the civil law, an adulteress; a 
woman guilty of adultery. 
Adulteration. The act of corrupting or debasing. The 
act of mixing something impure or spurious with some
thing pure or genuine, or an inferior article with a 
superior one of the same kind. The term is generally 
applied to the act of mixing up with food or drink 
intended to be sold other matters of an inferior quality, 
and usually of a more or less deleterious quality. The 
act, process or omission to act by which food becomes 
impure and unfit for consumption. Such is prohibited 
and regulated by federal and state statutes and agencies. 
AD VALOREM TAX 
See Food and Drug Administration; Food, Drug and Cos
metic Act; Foreign substance. 
Adulterator I;)d�lt;)reyd;)r/. A corrupter. In the civil 
law, a forger; a counterfeiter. 
Adulteratores monetce I ;)d�ltar;)toriyz m;)niytiy I. Coun
terfeiters of money. 
Adulterine I ;)d�lt;)r;)n/. Begotten in an adulterous in
tercourse. Those are not deemed adulterine who are 
begotten of a woman openly married through ignorance 
of a former wife being alive. In the Roman and canon 
law, adulterine bastards were distinguished from such 
as were the issue of two unmarried persons, and the 
former were treated with more severity, not being al
lowed the status of natural children, and being ineligible 
to holy orders. 
Adulterine guilds. Traders acting as a corporation 
without a charter, and paying a fine annually for per
mission to exercise their usurped privileges. 
Adulterium lred�ltiriy;)m/. A fine anciently imposed for 
the commission of adultery. 
Adultery I ;)d�lt;)riy I. Voluntary sexual intercourse of a 
married person with a person other than the offender's . 
husband or wife, or by a person with a person who is 
married to another. See e.g. Wisc.St. 944.16. This 
crime, which is variously defined and punished by state 
statutes, is seldom prosecuted. See also Illi cit cohab
itation. 
Open and notorious adultery. To constitute living in 
open and notorious adultery, the parties must reside 
together publicly in the face of society, as if conjugal 
relations existed between them, and their so living and 
the fact that they are not husband and wife must be 
known in the community. 
Ad ultimam vim terminorum Ired �lt;)m;)m vim 
t;)rm;)nor;)m/. To the most extended import of the 
terms; in a sense as universal as the terms will reach. 
Ad usum et commodum I red yus;)m et kom;)d;)m/. To 
the use and benefit. 
Ad valentiam Ired v;)lensh(iy);)m/. To the value. See Ad 
valorem tax. 
Ad valorem tax I red v;)lor;)m/. According to value. A 
tax imposed on the value of property. The more com
mon ad valorem tax is that imposed by states, counties, 
and cities on real estate. Ad valorem taxes, can, how
ever, be imposed upon personal property; e.g., a motor 
vehicle tax may be imposed upon the value of an auto
mobile and is therefore deductible as a tax. A tax levied 
on property or an article of commerce in proportion to 
its value, as determined by assessment or appraisal. 
Callaway v. City of Overland Park, 211 Kan. 646, 508 
P .2d 902, 907. 
Duties are either ad valorem or specific; the former 
when the duty is laid in the form of a percentage on the 
value of the property; the latter where it is imposed as a 
fixed sum on each article of a class without regard to its 
value.

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ADVANCE 
Advance. To move something forward in position, time 
or place. To pay money or render other value before it 
is due; to furnish something before an equivalent is 
received; to loan; to furnish capital in aid of a projected 
enterprise, in expectation of return from it. To supply 
beforehand; to furnish on credit or before goods are 
delivered or work done; to furnish as a part of a stock or 
fund; to pay money before it is due; to furnish money 
for a specific purpose understood between the parties, 
the money or sum equivalent to be returned; to furnish 
money or goods for others in expectation of reimburse
ment. 
Money or commodities furnished on credit. A loan, or 
gift or money advanced to be repaid conditionally; may 
be equivalent to "pay." See also Advances. 
Advance bill. Bill of exchange drawn before shipment 
of goods. 
Advancement. Money or property given by a parent to 
his child or, sometimes, presumptive heir, or expended 
by the former for the latter's benefit, by way of anticipa
tion of the share which the child will inherit in the 
parent's estate and intended to be deducted therefrom. 
It is the latter circumstance which differentiates an 
advancement from a gift or a loan. 
Advance payment. Payments made in anticipation of a 
contingent or fixed future liability or obligation. 
Advances. Moneys paid before or in advance of the 
proper time of payment; money or commodities fur
nished on credit; a loan or gift, or money advanced to be 
repaid conditionally. Payments advanced to the owner 
of property by a factor or broker on the price of goods 
which the latter has in his hands, or is to receive, for 
sale. See also Advance. 
Advance sheets. Pamphlets (published weekly for Na
tional Reporter System) containing the most recently 
reported opinions of specific courts (e.g. Federal Report
er) or the courts of several jurisdictions (e.g. Pacific 
Reporter). The volume and page numbers usually are 
the same as in the subsequently bound volumes of the 
respective reporter series, which cover several numbered 
issues of the advance sheets. 
Advantagium. In old pleading, an advantage. 
Advena hedv:m::l/. In Roman law, one of foreign birth, 
who has left his own country and settled elsewhere, and 
who has not acquired citizenship in his new locality; 
often called albanus. 
Advent. A period of time recognized by the English 
common and ecclesiastical law, beginning on the Sunday 
that falls either upon St. Andrew's day, being the 30th 
of November, or the next to it, and continuing to Christ
mas day. 
Adventitious hi:dv::lntish::ls/. That which comes inciden
tally, fortuitously, or out of the regular course. 
Adventitius hedv::lntish(iY)::ls/. Lat. Fortuitous; inci
dental; coming from an unusual source. Adventitia 
bona are goods which fall to a man otherwise than by 
52 
inheritance. Adventitia dos is a dowry or portion given 
by some friend other than the parent. 
Ad ventrem inspiciendum / red vEmtr::lm inspish
iyimd::lm/. To inspect the womb. A writ for the sum
moning of a jury of matrons (q.v.) to determine the 
question of pregnancy. 
Adventura /redv::lntyur::l/. An adventure. Flotsam, jet
sam, and lagon are styled adventurce maris (adventures 
of the sea). 
Adventure. A hazardous and striking enterprise. A 
bold undertaking accompanied by possible hazards, risks 
and unforeseen events. 
A common word in marine insurance policies, used as 
synonymous, or nearly so, with "perils ." A shipment of 
goods in charge of an agent to be disposed of for the best 
price obtainable. 
Adventure, bill of In commercial law, a writing signed 
by a merchant, stating that the property in goods 
shipped in his name belongs to another, to the adven
ture or chance of which the person so named is to stand, 
with a covenant from the merchant to account to him 
for the produce. 
Gross adventure. In maritime law, a loan on bottomry. 
So named because the lender, in case of a loss, or 
expense incurred for the common safety, must contrib
ute to the gross or general average. 
Joint adventure. A commercial or maritime enterprise 
undertaken by several persons jointly; a limited part
nership,-not limited in the statutory sense as to the 
liability of the partners, but as to its scope and duration. 
An association of two or more persons to carry out a 
single business enterprise for profit, for which purpose 
they combine their property, money, effects, skill, and 
knowledge. A special combination of two or more per
sons, where, in some specific adventure, a profit is 
jointly sought, without any actual partnership or corpo
rate designation. See also Joint venture. 
Adventurer. One who undertakes uncertain or hazard
ous actions or enterprises. It is also used to denote one 
who seeks to advance his own interests by unscrupulous 
designs on the credulity of others. 
Adversary counsel. Such counsel, as required to be 
appointed in commitment proceedings has the same 
functions, duties and responsibilities as one would have 
if one retained by the person involved as his or her own 
attorney, and such duties include preserving the confi
dences and secrets of the client, exercising independent 
professional judgment on behalf of the client, represent
ing the client competently, and representing client zeal
ously within the bounds of the law. State ex reI. Mem
mel v. Mundy, 75 Wis.2d 276, 249 N.W.2d 573, 577. 
Adversary proceeding. One having opposing parties; 
contested, as distinguished from an ex parte hearing or 
proceeding. One of which the party seeking relief has 
given legal notice to the other party, and afforded the 
latter an opportunity to contest it. See also Case. Com
pare Ex parte.

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53 
Adversary system. The jurisprudential network of 
laws, rules and procedures characterized by opposing 
parties who contend against each other for a result 
favorable to themselves. In such system, the judge acts 
as an independent magistrate rather than prosecutor; 
distinguished from inquisitorial system. 
Adverse. Opposed; contrary; in resistance or opposition 
to a claim, application, or proceeding. Having opposing 
interests; having interests for the preservation of which 
opposition is essential. 
Use of land is "adver se", as against owner, if it is not 
made in subordination to him, is open and notorious and 
is not wrongful as to him; "adverse" means that one 
making use shall not recognize in those as against whom 
it is claimed to be adverse an authority either to prevent 
or to permit its continuance, and refers to nonrecogni
tion of such authority at time use is made. Benson v. 
Fekete, Mo., 424 S.W.2d 729, 738. 
As to adverse Enjoyment; User; Verdict; Witness, see 
those titles. 
Adverse claim. An alleged right of one person asserted 
against the interest of another person. 
Adverse enjoyment. See Adverse possession. 
Adverse interest. The "adverse interest" of a witness, 
so as to permit cross-examination by the party calling 
him, must be so involved in the event of the suit that a 
legal right or liability will be acquired, lost, or material
ly affected by the judgment, and must be such as would 
be promoted by the success of the adversary of the party 
calling him. See also Adverse witness. 
Adverse interest rule. Failure of a party to produce a 
witness who is within his power to produce and who 
would naturally have been produced by him, which 
failure permits inference that evidence of witness would 
be unfavorable to party's cause. New England Whalers 
Hockey Club v. Nair, 1 Conn.App. 680, 474 A.2d 810, 
814. 
Adverse opinion. An accounting term used in connec
tion with the issuance of audited financial statements. 
An adverse opinion states that the entity's financial 
statements do not present fairly the financial position, 
results of operations, and changes in financial position 
in conformity with generally accepted accounting princi
ples (GAAP). 
An explanation of the departure from GAAP must be 
included in the opinion. See Opinion (Accounting ) for 
"qualified," "unqualified," and "disclaimer" opinions. 
Adverse party. A party to an action whose interests are 
opposed to or opposite the interests of another party to 
the action. 
Appeal. An "adverse party" entitled to notice of appeal 
is every party whose interest in relation to the judgment 
or decree appealed from is in conflict with the modifica
tion or reversal sought by the appeal. Such term in
cludes the following: Every party interested in sustain
ing the judgment or decree. All parties appearing 
against losing party unless reversal of case will not be to 
ADVERSE WITNESS 
party's detriment. Any party who would be prejudicial
ly affected by a modification or reversal of the judgment 
appealed from. One who has interest in opposing object 
sought to be accomplished by appeal. Party to record, 
whose interest in subject-matter of appeal is adverse to 
reversal or modification of judgment or order appealed 
from. 
Discovery. When the parties exchange pleadings, one 
asserting a claim for relief against the other, the parties 
are "adver se," within rule allowing written interrogato
ries to be served upon any adverse party. Carey v. 
Schuldt, D.C.La., 42 F.R.D. 390, 393, 394, 395. 
Adverse possession. A method of acquisition of title to 
real property by possession for a statutory period under 
certain conditions. Lowery v. Garfield County, 122 
Mont. 571, 208 P.2d 478, 486. It has been described as 
the statutory method of acquiring title to land by limita
tion. Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484, 486. 
Because of the statute of limitations on the bringing of 
actions for the recovery of land, title can be acquired to 
real property by adverse possession. In order to estab
lish title in this manner, there must be proof of nonper
missive use which is actual, open, notorious, exclusive 
and adverse for the statutorily prescribed period. Ryan 
v. Stavros, 348 Mass. 251, 203 N.E.2d 85. State statutes 
differ with respect to the required length of possession 
from an upper limit of 20 years to a lower one of 5 years, 
with even more extreme time periods covering certain 
special cases. There may be different periods of time 
even within a single state, depending on whether or not 
the adverse possessor has color of title and/or whether 
or not taxes have been paid. In some cases a longer 
possession is required against public entities than 
against individuals. 
Adverse possession depends on intent of occupant to 
claim and hold real property in opposition to all the 
world, Sertic v. Roberts, 171 Or. 121, 136 P.2d 248; and 
also embodies the idea that owner of or persons interest
ed in property have knowledge of the assertion of owner
ship by the occupant, Field v. Sosby, Tex.Civ.App., 226 
S.W.2d 484, 486. 
Adverse possession consists of actual possession with 
intent to hold solely for possessor to exclusion of others 
and is denoted by exercise of acts of dominion over land 
including making of ordinary use and taking of ordinary 
profits of which land is susceptible in its present state. 
U. S. v. Chatham, D.C.N.C., 208 F.Supp. 220, 226. 
See also Constructive adverse possession; Hostile; Pos
session (Hostile possession; Open possession); Notorious 
possession; Prescription; Tacking. 
Adverse use. Use without license or permission; an 
element necessary to acquire title or easement by pre
scription. Shuggars v. Brake, 248 Md. 38, 234 A.2d 752. 
Adverse witness. A witness who gives evidence on a 
material matter prejudicial to the party then examining 
him. Commonly used to describe a witness whose testi
mony is prejudicial or unfavorable to the party who 
called him and as a result, such witness may be im
peached. Foremost Dairies Inc. of South v. Cutler, Fla.

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ADVERSE WITNESS 
App., 212 So.2d 37, 40, 41. See also Adverse interest; 
Hostile or adverse witness. 
Adversus hedv:lrs;}s/. In the civil law, against (contra). 
Adversus bonos mores, against good morals. 
Adversus extraneos vitiosa possessio prodesse solet 
/redv:lrs;}s ekstreyniyows vishiyowz;} p;}zesh(iy)ow 
prowdesiy sowl;}t/. Prior possession is a good title of 
ownership against all who cannot show a better. 
Advertise. To advise, announce, apprise, command, give 
notice of, inform, make known, publish. To call a mat
ter to the public attention by any means whatsoever. 
Any oral, written, or graphic statement made by the 
seller in any manner in connection with the solicitation 
of business and includes, without limitation because of 
enumeration, statements and representations made in a 
newspaper or other publication or on radio or television 
or contained in any notice, handbill, sign, catalog, or 
letter, or printed on or contained in any tag or label 
attached to or accompanying any merchandise. As dis
tinguished from other forms of communication means to 
call a matter to the public attention. Freeman v. 
Greenbriar Homes, Inc., Tex.App.-Dallas, 715 S.W.2d 
394, 397. False and deceptive advertising is regulated 
by the Federal Trade Commission and similar state 
agencies. See also Printers Ink Statute. 
Comparative advertising. Advertising that specifically 
compares the advertised brand with other brands of the 
same product. 
Competitive advertising. Advertising that contains basi
cally little information and is used only to allow a 
producer to maintain a share of the market for that 
product. 
Informative advertising. Advertising that gives infor
mation about the suitability and quality of products. To 
be contrasted with competitive advertising. 
Advertisement. Notice given in a manner designed to 
attract public attention. Edwards v. Lubbock County, 
Tex.Civ.App., 33 S.W.2d 482, 484. Information commu
nicated to the public, or to an individual concerned, as 
by handbills, newspaper, television, billboards, radio. 
First Nat. Corporation v. Perrine, 99 Mont. 454, 43 P.2d 
1073, 1077. 
Advice. View; opinion; information; the counsel given 
by lawyers to their clients; an opinion expressed as to 
wisdom of future conduct. Hughes v. Van Bruggen, 44 
N.M. 534, 105 P.2d 494, 496. See also Advise. 
The instruction usually given by one merchant or 
banker to another by letter, informing him of shipments 
made to him, or of bills or drafts drawn on him, with 
particulars of date, or sight, the sum, and the payee. 
Bills presented for acceptance or payment are frequent
ly dishonored for want of advice. 
Advice of counsel. A defense used in actions for mali
cious prosecution which requires a finding that defen
dant presented all facts to his counsel and that he 
honestly followed counsel's advice. Boylen v. Tracy, 254 
Mass. 105, 108, 149 N.E. 674. 
54 
Advice of credit. Notice by an advising bank of the 
issuance of a letter of credit. 
Ad vim ma jorem vel ad casus fortuitus non tenetur 
quis, nisi sua culpa intervenerit / red vim major;}m vel 
red keys;}s f;}rt(y)uw;}t;}S non t;}niyt;}r kwis, naysay 
s(y)UW;} k:llp;} int;}rv;}nir;}t/. No one is held to answer 
for the effects of a superior force, or of accidents, unless 
his own fault has contributed. 
Advisare / redv;}zeriy / or advisari / redv;}zeray / . Lat. To 
consult, deliberate, consider, advise; to be advised. Oc
curring in the phrase curia advisari vult (q.v.), (usually 
abbreviated cur. adv. vult, or G.A. V.), the court wishes to 
be advised, or to consider the matter. 
Advise. To give an opinion or counsel, or recommend a 
plan or course of action; also to give notice. To encour
age, inform, or acquaint. It is different in meaning 
from "instruct" or "persuade." Hughes v. Van Brug
gen, 44 N.M. 534, 105 P.2d 494, 497. Where a statute 
authorizes the trial court to advise the jury to acquit, 
the court has no power to instruct the jury to acquit. 
The court can only counsel, and the jury are not bound 
by the advice. "Advise" imports that it is discretionary 
or optional with the person addressed whether he will 
act on such advice or not. 
Advised. Prepared to give judgment, after examination 
and deliberation. E.g. "The court took time to be ad
vised." 
Advisedly. With deliberation; intentionally. 
Advisement. Consideration; deliberation; consultation. 
The consultation of a court, after the argument of a 
cause by counsel, and before delivering their opinion. 
In re Hohorst, 150 U.S. 653, 14 S.Ct. 221, 37 L.Ed. 1211. 
Advising bank. A bank which gives notification of the 
issuance of a [letter of] credit by another bank. U.C.C. 
§ 5-103(1)(e). 
Advisory. Counselling, suggesting, or advising, but not 
imperative or conclusive. A verdict on an issue out of 
chancery is advisory. 
Advisory counsel. Attorney retained to give advice as 
contrasted with trial counsel. 
Advisory jury. In actions in Federal Court in which 
there is no jury trial as of right, court may try case with 
an advisory jury and its verdict is not binding on court. 
Fed.R.Civ.P. 39(c). See also Jury. 
Advisory opinion. Such may be rendered by a court at 
the request of the government or an interested party 
indicating how the court would rule on a matter should 
adversary litigation develop. An advisory opinion is 
thus an interpretation of the law without binding effect. 
While the International Court of Justice and some state 
courts will render advisory opinions the federal courts 
will not; their jurisdiction being restricted to cases or 
controversies. Compare Declaratory judgment. See also 
Case. 
Advisory trial. See Advisory jury. 
Advisory verdict. See Advisory jury.

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55 
Ad vitam hi!d vayt�m/. For life. In feodo, vel ad vitam; 
in fee, or for life. 
Ad vitam aut culpam hi!d vayt�m ot k�lp�m/. For life 
or until fault. Words descriptive of a tenure of office 
"for life or good behavior," equivalent to quamdiu bene 
se gesserit. 
Advocacy hi!dv�k�siy/. The act of pleading for, support
ing, or recommending active espousal. Gitlow v. People 
of State of New York, 268 U.S. 652, 45 S.Ct. 625, 626, 69 
L.Ed. 113B. 
Advocare hi!dv�keriy I. Lat. To defend; to call to one's 
aid; to vouch; to warrant. 
Advocassie hi!dv�k�siy/. L. Fr. The office of an advo
cate; advocacy. 
Advocata hMv�keyt�/. In old English law, a patroness; 
a woman who had the right of presenting to a church. 
Advocate I redv�keyt/, v. To speak in favor of or defend 
by argument. To support, vindicate, or recommend 
publicly. 
Advocate I redv�k�t/, n. One who assists, defends, or 
pleads for another. One who renders legal advice and 
aid and pleads the cause of another before a court or a 
tribunal, a counselor. A person learned in the law, and 
duly admitted to practice, who assists his client with 
advice, and pleads for him in open court. An assistant; 
adviser; a pleader of causes. 
Advocati hMv�keytay/. Lat. In Roman law, patrons; 
pleaders; speakers. 
Advocatia hi!dv�keysh(iy)�/. In the civil law, the quali
ty, function, privilege, or territorial jurisdiction of an 
advocate. The functions, duty, or privilege of an advo
cate. 
Advocati ecclesire I redv�keytay �kliyziyiy I. Advocates 
of the church. A term used in the ecclesiastical law to 
denote the patrons of churches who presented to the 
living on an avoidance. This term was also applied to 
those who were retained to argue the cases of the 
church. These were of two sorts: those retained as 
pleaders to argue the cases of the church and attend to 
its law-matters; and advocates, or patrons of the advow
son. 
Advocati fisci lredv�keytay fisay/. In civil law, those 
chosen by the emperor to argue his cause whenever a 
question arose affecting his revenues. 3 Bl.Comm. 27. 
Advocates of the fisc, or revenue; fiscal advocates (qui 
causam fisci egissent). Answering, in some measure, to 
the king's counsel in English law. 
Advocating overthrow of government. Such conduct 
is a federal crime. 18 U.S.C.A. §§ 2384, 2385. 
Advocatione decimarum. lredvowkeyshiyowniy des�
mer�m/. A writ which lay for tithes, demanding the 
fourth part or upwards, that belonged to any church. 
Advocator lredvowkeyt�r/. In old practice, one who 
called on or vouched another to warrant a title; a 
voucher. Advoeatus; the person called on, or vouched; 
a vouchee. 
ADVOWSON 
Advocatus lredvowkeyt�s/. A pleader; a narrator. In 
the civil law, an advocate; one who managed or assisted 
in managing another's cause before a judicial tribunal. 
Called also "patron us. " But distinguished from eausidi
eus. 
Advocatus diaboli I redvowkeyt�s dayreb�lay I. In eccle
siastical law, the devil's advocate; the advocate who 
argues against the canonization of a saint. 
Advocatus est, ad quem pertinet jus advocationis 
alicujus ecclesire, ut ad ecclesiam, nomine proprio, 
non alieno, possit prresentare I redvowkeyt�s est, red 
kwem p�rt�n�t j�s redvowkeyshiyown�s reliykyuwj�s 
�kliyziyiy, ;} red �kliyziy�m, nom�niy prowpriyow, non 
reliyiynow, pos�t prez�nteriy/. A patron is he to whom 
appertains the right of presentation to a church, in such 
a manner that he may present to such a church in his 
own name, and not in the name of another. 
Ad voluntatem Ired vol�nteyt�m/. At will. Ad volunta
tem domini, at the will of the lord. 
Advoutrer lredvawtr�r/. In old English law, an adulter
er. 
Advoutry lredvawtriy/. In old English law, adultery 
between parties both of whom were married. Or the 
offense by an adulteress of continuing to live with the 
man with whom she committed the adultery. Some
times spelled "advowtry." See AdvQutrer. 
Advowee, or avowee /re(d)vawiy/. The person or pa
tron who has a right to present to a benefice. 
Advowee paramount. The sovereign, or highest pa
tron. 
Advowson lredvawz�n/. In English ecclesiastical law, 
the right of presentation to a church or ecclesiastical 
benefice; the right of presenting a fit person to the 
bishop, to be by him admitted and instituted to a certain 
benefice within the diocese, which has become vacant. 
The person enjoying this right is called the "patron" 
(patronus) of the church, and was formerly termed "ad
voeatus, " the advocate or defender, or in English, "ad
vowee. " When there is no patron, or he neglects to 
exercise his right within six months, it is called a lapse, 
and a title is given to the ordinary to collate to a church: 
when a presentation is made by one who has no right, it 
is called a usurpation. 
Advowsons are of different kinds: 
Advowson appendant is an advowson annexed to a man
or, and passing with it, as incident or appendant to it, by 
a grant of the manor only, without adding any other 
words. 2 Bl.Comm. 22. 
Advowson eollative. Where the bishop happens himself 
to be the patron, in which case (presentation being 
impossible, or unnecessary) he does by one act, which is 
termed "collation, " or conferring the bene
fice, all that is usually done by the separate acts of 
presentation and institution. 2 Bl.Comm. 22, 23. 
Advowson donative exists where the patron has the 
right to put his clerk in possession by his mere gift, or 
deed of donation, without any presentation to the bish-

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ADVOWSON 
op, or institution by him. Donative benefices were con
verted into presentative by the Benefices Act of 1898. 
Advowson in gross is an advowson separated from the 
manor, and annexed to the person. 2 Bl.Comm. 22. 
Advowson presentative is the usual kind of advowson, 
where the patron has the right of presentation to the 
bishop, or ordinary, and moreover to demand of him to 
institute his clerk, if he finds him canonically qualified. 
2 Bl.Comm. 22. 
Advowtry lredvawtriy/ . See Advoutry. 
Ad waractum Ired w�rekt�m/. To fallow. 
.tEdes liydiyz/. Lat. In the civil law, a house, dwelling, 
temple, place of habitation, whether in the city or coun
try. In the country everything upon the surface of the 
soil passed under the term "redes. " 
.tEdificare liyd�f�keriy/. Lat. In civil and old English 
law, to make or build a house; to erect a building. 
.tEdificare in tuo proprio solo non licet quod alteri 
noceat liyd�f�keriy in t(y)uwow prowpriow sowlow non 
lays�t kwod relt�ray nosiy�t/. To build upon your own 
land what may injure another is not lawful. A proprie
tor of land has no right to erect an edifice on his own 
ground, interfering with the due enjoyment of adjoining 
premises, as by overhanging them, or by throwing water 
from the roof and eaves upon them, or by obstructing 
ancient lights and windows. 
.tEdificatum solo solo cedit liyd�f�keyt�m sowlow solow 
siyd�tI. What is built upon land belongs to or goes with 
land. 
.tEdificia solo cedunt liyd�fish(iy)� sowlow siyd�nt/. 
Buildings belong to [go with] the soil. 
.tEdilitum edictum liydibt�m iydikt�m/. In the Roman 
law, the .tEdilitian Edict. An edict providing remedies 
for frauds in sales, the execution of which belonged to 
the curule rediles. That provision by which the buyer of 
a diseased or imperfect slave, horse, or other animal was 
relieved at the expense of the vendor who had sold him 
as sound knowing him to be imperfect. 
.tEfesn. In old English law, the remuneration to the 
proprietor of a domain for the privilege of feeding swine 
under the oaks and beeches of his woods. 
.tEgroto liygrowtow/. Lat. Being sick or indisposed. A 
term used in some of the older reports. 
.tEgylde. Uncompensated, unpaid for, unavenged. From 
the participle of exclusion, a, re, or ex, (Goth.) and gild, 
payment, requital. 
.tEl leyl/. A Norman French term signifying "grandfa
ther." It is also spelled "a ieul" and "ayle. " 
.tEquior est dispositio legis quam hominis liykwiyor 
est disp�zish(iy)ow liyj�s kwrem hom�n�sl. The disposi
tion of the law is more equitable than that of man. 
.tEquitas liykw�tresl. In the civil law, equity, as opposed 
to strictum or summum jus (q. v.). Otherwise called 
requum, requum bonum, requum et bonum, requum et 
justum. See .tEquum et bonum est lex legum. 
56 
JEquitas agit in personam liykw�tres eyj�t in 
p�rsown�m/. Equity acts upon the person. 
.tEquitas est correctio legis generaliter latre, qua 
parte deficit liykw�tres est k�reksh(iy)ow liyj�s jen�rey
l�t�r leytiy, kwey partiy def�s�t/. Equity is the correc
tion of that wherein the law, by reason of its generality, 
is deficient. 
.tEquitas est correctio quredam legi adhibita, quia ab 
ea abest aliquid propter generalem sine exceptione 
comprehensionem liykw�tres est k�reksh(iy)ow 
kwiyd�m liyjay red(h)ib�t�, kway� reb iy� rehest rel�kw�d 
propt�r jen�reyl�m sayniy eksepshiyowniy kompr�hen
shiyown�m/. Equity is a certain correction applied to 
law, because on account of its general comprehensive
ness, without an exception, something is absent from it. 
.tEquitas est perfecta quredam ratio qure jus scriptum 
interpretatur et emendat; nulla scriptura compre
hensa, sed solum in vera ratione consistens 
liykw�tres est p�rfekt� kwiyd�m reyshiyow kwiy j;JS 
skript�m int;)rpr�teyt�r et �mend�t; n�l� skriptyur� 
kompr�hens�, sed sowl�m in vir� reyshiyowniy 
k�nsistenz/. Equity is a certain perfect reason, which 
interprets and amends the written law, comprehended 
in no writing, but consisting in right reason alone. 
.tEquitas est quasi requalitas liykw�tres est kweysay 
iykw6btresl. Equity is as it were equality; equity is a 
species of equality or equalization . 
.tEquitas ignorantire opitulatur, oscitantire non item 
liykw�tres ign�rrenshiyiy owpity�leyt�r, os�trenshiyiy 
non ayt�m/. Equity assists ignorance, but not careless
ness. 
.tEquitas non facit jus, sed juri auxiliatur liykw�tres 
non feys�t j�s, sed junly ogziliyeyt�r/. Equity does not 
make law, but assists law. 
.tEquitas nunquam contravenit legis liykw�tres n;JI]
kw�m kontr�viyn�t liyj�sl. Equity never counteracts 
the laws. 
.tEquitas sequitur legem liykw�tres sekw�t�r liyj�m/. 
Equity follows the law . 
.tEquitas supervacua odit liykw�tres suwp�rvrekyuw� 
6wd�t/. Equity abhors superfluous things . 
.tEquitas uxoribus, liberis, creditoribus maxime favet 
liykw�tres �x6riyb�s, lib�r�s, kred�t6riyb�s mrek
s�miy feyv�t/. Equity favors wives and children, credi
tors most of all. 
.tEquum et bonum est lex legum liykw�m �t b6wn�m 
est leks liyg�m/. What is equitable and good is the law 
of laws. 
.tEquus liykw�s/. Lat. Equal; even. A provision in a 
will for the division of the residuary estate ex requus 
among the legatees means equally or evenly. 
.tEra, or era lir�/. A fixed point of chronological time, 
whence any number of years is counted; thus, the 
Christian era began at the birth of Christ, and the 
Mohammedan era at the flight of Mohammed from

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57 
Mecca to Medina. The derivation of the word has been 
much contested. 
lErarium lireriy;}m/. Lat. In the Roman law, the trea
sury (fiscus). 
lEs liyzl. Lat. In the Roman law, money (literally, 
brass); metallic money in general, including gold. 
Aes alienum liyz reliyiyn;}m/. A civil law term signify
ing a debt. Literally translated, the money of another. 
The civil law considered borrowed money as the proper
ty of another, as distinguished from res suum, one's own 
money. 
lEsnecia I iysniysh(iy);} I . In old English law, Esnecy; the 
right or privilege of the eldest born. 
lEsnecius liysniyshiy;}s/. See Anecius; lEsnecia. 
lEs suum liys s(y)uw;}m/. One's own money. In the 
Roman law, debt; a debt; that which others owe to us 
(quod alii nobis debent). 
Aesthetic I ;}s(Jetik/. Relating to that which is beautiful 
or in good taste. 
Aesthetic value. The artistic worth of something as 
contrasted with its practical value. 
lEstimatio capitis lest;}meysh(iy)ow krep;}t;}s/. Lat. The 
value of a head. In Saxon law, the estimation or valua
tion of the head; the price or value of a man. The price 
to be paid for taking the life of a human being. By the 
laws of Athelstan, the life of every man not excepting 
that of the king himself was estimated at a certain price, 
which was called the were, or restimatio capitis. 
lEstimatio prreteriti delicti ex postremo facto nun
quam crescit lest;}meysh(iy)ow pr;}ter;}tay d�liktay eks 
powstriymow frektow n�1Jkw;}m kres;}t/. The weight of a 
past offense is never increased by a subsequent fact. 
lEtas liytres/. Lat. In the civil law, age. 
lEtas infantire (also written infantili) proxima liytres 
infrenshiyiy proks;}m�/. The age next to infancy; the 
first half of the period of childhood (pueritia), extending 
from seven years to ten and a half. 4 Bl.Comm. 22. See 
Age. 
lEtas legitima liytres bjit;}m;}/. Lawful age. See Legal 
age; Majority. 
lEtas perfecta liytres p�rfekt;}/. Complete age; full age. 
lEtas prima liytres praym�/. The first age; infancy 
(infantia). 
lEtas pubertati proxima liytres pyuwb;}rteytay 
proks;}m�/. The age next to puberty; the last half of 
the period of childhood (pueritia), extending from ten 
and a half years to fourteen, in which there might or 
might not be criminal responsibility according to natu
ral capacity or incapacity. 4 Bl.Comm. 22. See Age. 
lEtate probanda liyteytiy prowbrend;}I . A writ (now 
obsolete) which inquired whether the king's tenant hold
ing in chief by chivalry was of full age to receive his 
lands. It was directed to the escheater of the county. 
AFFEERORS 
lEtheling liyo�li1J/. In Saxon law, a noble; generally a 
prince of the blood. 
A.F.D.C. Aid to Families with Dependent Children. 
Affair. (Fr.). A law suit. 
Affairs. An inclusive term, bringing within its scope 
and meaning anything that a person may do. Walker v. 
United States, C.C.A.Mo., 93 F.2d 383, 391. A person's 
concerns in trade or property; business. That which is 
done or to be done. General operations carried on by an 
employer. Gocs v. Thomas E. Coale Coal Co., 142 Pa.Su
per. 479, 16 A.2d 720, 723. See also Statement of affairs. 
Affect. To act upon; influence; change; enlarge or 
abridge; often used in the sense of acting injuriously 
upon persons and things. To lay hold of or attack (as a 
disease does); to act, or produce an effect or result upon; 
to impress or influence (the mind or feelings); to touch. 
Affecting commerce. Any activity which touches or 
concerns business or industry, favorably or burdensome
ly; commonly used within context of Labor Manage
ment Relations Act regarding a labor dispute which 
burdens commerce. U. S. v. Ricciardi, C.A.N.Y., 357 
F.2d 91, 95. 
The term "affecting commerce" means in commerce, 
or burdening or obstructing commerce or the free flow of 
commerce, or having led or tending to lead to a labor 
dispute burdening or obstructing commerce or the free 
flow of commerce. National Labor Relations Act, § 2(7); 
29 U.S.C.A. § 152. 
The term "industry affecting commerce" means any 
industry or activity in commerce or in which a labor 
dispute would burden or obstruct commerce or tend to 
burden or obstruct commerce or the free flow of com
merce. Labor Management Relations Act, § 501(1); 29 
U.S.C.A. § 142. 
Affection. The making over, pawning, or mortgaging of 
a thing to assure the payment of a sum of money, or the 
discharge of some other duty or service. In a medical 
sense, an abnormal bodily condition. 
Affectio tua nomen imponit operi tuo I ;}feksh(iy)ow 
t(y)UW;} nowm�n impown;}t owp;}ray t(y)uwow I. Your 
disposition (or motive, intention) gives name (or charac
ter) to your work or act. 
Affectus I ;}fekt;}s/. Disposition; intention, impulse or 
affection of the mind. One of the causes for a challenge 
of a juror is propter affectum, on account of a suspicion 
of bias or favor. 3 Bl.Comm. 363. 
Affectus punitur licet non sequatur effectus I �fekt;}s 
pyuwnayt;}r lays�t non s;}kweyt;}r ;}fekt�s/. The inten
tion is punished although the intended result does not 
follow. 
Affeer I;}fir/. To assess, liquidate, appraise, fix in 
amount. 
Affeerors I;}fir;}rzl. In common law, persons who, in 
court-Ieets, upon oath, settled and moderated the fines 
and amercements imposed on those who had committed 
offenses arbitrarily punishable, or that had no express

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AFFEERORS 
penalty appointed by statute. They were also appointed 
to moderate fines, etc., in courts-baron. 
Affermer /ref�rmey/. L. Fr. To let to farm. Also to 
make sure, to establish or confirm. 
Affiance. To assure by pledge. An agreement by which 
a man and woman promise that they will marry each 
other. 
Affiant / �fay�nt/. The person who makes and sub
scribes an affidavit. The word is used, in this sense, 
interchangeably with "deponent." But the latter term 
should be reserved as the designation of one who makes 
a deposition. 
Affidare /ref�deriy/. At common law, to swear faith to; 
to pledge one's faith or do fealty by making oath. Used 
of the mutual relation arising between landlord and 
tenant. 1 Bl.Comm. 367. Affidavit is of kindred mean
ing. 
Affidari /ref�deray/. To be mustered and enrolled for 
soldiers upon an oath of fidelity. 
Affidatio /ref�deysh(iy)ow/. At common law, a swearing 
of the oath of fidelity or of fealty to one's lord, under 
whose protection the quasi-vassal has voluntarily come. 
Affidatio dominorum /ref�deysh(iy)ow dom�n6r�m/. 
An oath taken by the lords in parliament. 
Affidatus / ref�deyt�s/. At common law one who was not 
a vassal, but who for the sake of protection had connect
ed himself with one more powerful. 
Affidavit /ref�deyv�t/. A written or printed declaration 
or statement of facts, made voluntarily, and confirmed 
by the oath or affirmation of the party making it, taken 
before a person having authority to administer such 
oath or affirmation. State v. Knight, 219 Kan. 863, 549 
P.2d 1397, 1401. See also Certification; Jurat; Verifica
tion. 
Affidavit of defense. An affidavit stating that the 
defendant has a good defense to the plaintiffs action on 
the merits; e.g. affidavit filed with motion for summary 
judgment. Fed.R. Civil P. 56(e). 
Affidavit of inquiry. By court rule in certain states, 
substituted service of process may be had on absent 
defendants if it appears by affidavit of plaintiffs attor
ney, or other person having knowledge of the facts, that 
defendant cannot, after diligent inquiry, be served with
in the state. 
Affidavit of merits. One setting forth that the defen
dant has a meritorious defense (substantial and not 
technical) and stating the facts constituting the same. 
See Affidavit of defense. 
Affidavit of notice. A sworn statement that affiant has 
given proper notice of hearing to other parties to action. 
Affidavit of service. An affidavit intended to certify 
the service of a writ, notice, summons, or other doc
ument or process. In federal courts, if service is made 
by a person other than a United States Marshall or his 
deputy, he shall make affidavit thereof. Fed.R. Civil P. 
4(g). 
58 
Affidavit to hold to bail. An affidavit required in 
many cases before the defendant in a civil action may be 
arrested. Such an affidavit must contain a statement, 
clearly and certainly expressed, by someone acquainted 
with the fact, of an indebtedness from the defendant to 
the plaintiff, and must show a distinct cause of action. 
Affilare / �filiyeriy / . L. Lat. To put on record; to file or 
affile. Affiletur, let it be filed. De recordo affilatum, 
affiled of record. 
Affile / �fayl/. A term employed in old practice, signify
ing to put on file. In modern usage it is contracted to 
file. 
Affiliate / �filiyeyt/ . Signifies a condition of being unit
ed; being in close connection, allied, associated, or at
tached as a member or branch. 
Affiliate company. Company effectively controlled by 
another company. A branch, division, or subsidiary. 
Under Investment Company Act (15 U.S.C.A. § 80a-2), 
company in which there is ownership (direct or indirect) 
of 5 percent or more of the voting stock. 
Corporations which are related as parent and subsidi
ary, characterized by identity of ownership of capital 
stock. Northeastern Consol. Co. C. v. U. S., C.A.Ill., 406 
F.2d 76, 79. See also Holding company. 
Affiliation. Act or condition of being affiliated, allied, 
or associated with another person, body, or organization. 
Imports less than membership in an organization, but 
more than sympathy, and a working alliance to bring to 
fruition the pposcribed program of a proscribed organiza
tion, as distinguished from mere co-operation with a 
proscribed organization in lawful activities, is essential. 
Bridges v. Wixon, CaL, 326 U.S. 135, 65 S.Ct. 1443, 1447, 
89 L.Ed. 2103. It includes an element of dependability 
upon which the organization can rely which, though not 
equivalent to membership duty, rests upon course of 
conduct that could not be abruptly ended without giving 
at least reasonable cause for charge of breach of good 
faith. U. S. ex reI. Kettunen v. Reimer, C.C.A.N.Y., 79 
F.2d 315, 317. See also Association. 
The act of imputing or determining the paternity of a 
child born out of wedlock, and the obligation to main
tain it. See Paternity suit or action. 
Affines /�fayniyz/. In the civil law, connections by 
marriage, whether of the persons or their relatives. 
Neighbors, who own or occupy adjoining lands. From 
this word is derived affinity, denoting relationship by 
marriage. The singular, affinis, is used in a variety of 
related significations-a boundary; a partaker or shar
er, affinis culpre (an aider or one who has knowledge of 
a crime). 
Mfinitas /�fin�tres/. Lat. In the civil law, affinity; 
relationship by marriage. 
Affinitas affinitatis / �fin�tres �fin�teyt�s/. Remote rela
tionship by marriage. That connection between parties 
arising from marriage which is neither consanguinity 
nor affinity. This term signifies the connection between 
the kinsmen of the two persons married, as, for example, 
the husband's brother and the wife's sister.

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59 
Affinity / �fin�tiy /. A close agreement; relation; spIrI
tual relation or attraction held to exist between certain 
persons. State ex info Norman v. Ellis, 325 Mo. 154, 28 
S.W.2d 363, 367. Relation which one spouse because of 
marriage has to blood relatives of the other. State v. 
Hooper, 140 Kan. 481, 37 P.2d 52. 
The connection existing, in consequence of marriage, 
between each of the married persons and the kindred of 
the other. Kest v.- Lewis, 169 Ohio St. 317, 159 N.E.2d 
449, 450. 
Degrees of relationship by affinity are computed as 
are degrees of relationship by consanguinity. The doc
trine of affinity grew out of the canonical maxim that 
marriage makes husband and wife one. The husband 
has the same relation, by affinity, to his wife's blood 
relatives as she has to them by consanguinity and vice 
versa. State v. Hooper, 140 Kan. 481, 37 P.2d 52. 
Affinity is distinguished into three kinds: (1) Direct, 
or that subsisting between the husband and his wife's 
relations by blood, or between the wife and the hus
band's relations by blood; (2) secondary, or that which 
subsists between the husband and his wife's relations by 
marriage; (3) collateral, or that which subsists between 
the husband and the relations of his wife's relations. 
In a larger sense, consanguinity or kindred. 
Quasi affinity. In the civil law, the affinity which exists 
between two persons, one of whom has been betrothed to 
a kinsman of the other, but who have never been mar
ried. 
Affirm. To ratify, uphold, approve, make firm, confirm, 
establish, reassert. To make affirmation; to make a 
solemn and formal declaration or asseveration that an 
affidavit is true, that the witness will tell the truth, etc., 
this being substituted for an oath in certain cases. Also, 
to give testimony on affirmation. See Affidavit; Jurat; 
Verification. 
Judgment. In the practice of appellate courts, to affirm 
a judgment, decree, or order, is to declare that it is valid 
and right and must stand as rendered below; to ratify 
and reassert it; to concur in its correctness and confirm 
its efficacy. If the appellate court remanded the case, it 
would be sending it back to the lower court with instruc
tions to correct the irregularities specified in the appel
late opinion. If the appellate court reversed the court 
below, it would have changed the result reached below. 
Pleading. To allege or aver a matter of fact; to state it 
affirmatively. The opposite of deny or traverse. 
Affirmance. The confirming, or ratifying of a former 
law, or judgment. The confirmation and ratification by 
an appellate court of a judgment, order, or decree of a 
lower court brought before it for review. See Affirm. 
The ratification or confirmation of a voidable contract 
or act by the party who is to be bound thereby. The 
term is in accuracy to be distinguished from ratification, 
which is a recognition of the validity or binding force as 
against the party ratifying, of some act performed by 
another person; and from confirmation, which would 
seem to apply more properly to cases where a doubtful 
AFFIRMATIVE CHARGE 
authority has been exercised by another in behalf of the 
person ratifying; but these distinctions are not general
ly observed. 
Affirmance day general. In the English court of ex
chequer, a day appointed by the judges of the common 
pleas, and barons of the exchequer, to be held a few days 
after the beginning of every term for the general affirm
ance or reversal of judgments. 
Affirmant / �f�rm�nt/. A person who testifies on affir
mation, or who affirms instead of taking an oath. Used 
in affidavits and depositions which are affirmed, instead 
of sworn to in place of the word "deponent." See also 
Affirmation; Jurat; Verification. 
Affirmanti, non neganti incumbit probatio 
/ref�rmrentay, non n�grentay ink�mb�t prowbeysh(iy)ow/. 
The [burden of] proof lies upon him who affirms, not 
upon one who denies. 
Affirmantis est probare /ref�rmrent�s est prowberiy/. 
He who affirms must prove. 
Affirmation. A solemn and formal declaration or assev
eration that an affidavit is true, that the witness will 
tell the truth, etc.; this being substituted for an oath in 
certain cases. A solemn religious asseveration in the 
nature of an oath. See also Confirmation; Jurat; Oath; 
Verification. 
Affirmation of fact. A statement concerning a subject
matter of a transaction which might otherwise be only 
an expression of opinion but which is affirmed as an 
existing fact material to the transaction, and reasonably 
induces the other party to consider and rely upon it, as a 
fact. 
Affirmatio unius exclusio est alterius 
/ref�rmeysh(iy)ow yuwnay�s ekskluwzhiyow est 
oltiriy�s/. The affirmance of one thing is the exclusion 
of the other. 
Affirmative. That which declares positively; that which 
avers a fact to be true; that which establishes; the 
opposite of negative. 
As to affirmative Plea; Proof; Warranty, see those 
titles. 
Affirmative action programs. Employment programs 
required by federal statutes and regulations designed to 
remedy discriminatory practices in hiring minority 
group members; i.e. positive steps designed to eliminate 
existing and continuing discrimination, to remedy lin
gering effects of past discrimination, and to create sys
tems and procedures to prevent future discrimination; 
commonly based on population percentages of minority 
groups in a particular area. Factors considered are 
race, color, sex, creed and age. National Labor Rela
tions Board v. Fansteel Metallurgical Corporation, 306 
U.S. 240, 59 S.Ct. 490, 497, 83 L.Ed. 627; National Labor 
Relations Board v. Leviton Mfg. Co., C.C.A.2, 111 F.2d 
619, 621. 
Affirmative charge. The general "affirmative charge" 
is an instruction to the jury that, whatever the evidence

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AFFIRMATIVE CHARGE 
may be, defendant cannot be convicted under the count 
in the indictment to which the charge is directed. 
Affirmative defense. In pleading, matter asserted by 
defendant which, assuming the complaint to be true, 
constitutes a defense to it. A response to a plaintiffs 
claim which attacks the plaintiffs legal right to bring 
an action, as opposed to attacking the truth of claim. 
Under the Fed. Rules of Civil Procedure, and also under 
most state Rules, all affirmative defenses must be raised 
in the responsive pleading (answer); such defenses in
clude accord and satisfaction, assumption of risk, con
tributory negligence, duress, statute of limitations, es
toppel, etc. See Fed.R. Civil P. 8(c). 
Affirmative defenses in criminal cases include insani
ty, intoxication, self-defense, automatism, coercion, alibi, 
and duress. See e.g. Model Penal Code § 3.01 (justifica
tion as affirmative defense). 
Affirmative easement. An easement which gives to the 
owner of the dominant tenement the right to use the 
servient tenement, or to do some act thereon which 
would otherwise be unlawful. Clements v. Taylor, Tex. 
Civ.App., 184 S.W.2d 485, 487. 
Affirmative pregnant. In common law pleading, an 
affirmative allegation implying some negative in favor 
of the adverse party. 
Affirmative proof. Such evidence of the truth of mat
ters asserted as tends to establish them, regardless of 
character of evidence offered. 
Affirmative relief. Relief, benefit, or compensation 
which may be due and granted to defendant. Relief for 
which defendant might maintain an action independent
ly of plaintiffs claim and on which he might proceed to 
recovery, although plaintiff abandoned his cause of ac
tion or failed to establish it. Specific performance (q.v.) 
is a type of affirmative relief that may be granted to 
plaintiff. 
Affirmative statute. A statute couched in affirmative 
or mandatory terms. One which directs the doing of an 
act, or declares what shall be done; as a negative statute 
is one which prohibits a thing from being done, or 
declares what shall not be done. 
Affirmative warranty. See Warranty. 
Affix. Fix or fasten in any way; to attach physically. 
. To attach to, inscribe, or impress upon, as a signature, a 
seal, a trade-mark. To attach, add to, or fasten upon, 
permanently, as in the case of fixtures annexed to real 
estate. A thing is deemed to be affixed to land when it 
is attached to it by the roots, as in the case of trees, 
vines, or shrubs; or imbedded in it, as in the case of 
walls; or permanently resting upon it, as in the case of 
buildings; or permanently attached to what is thus 
permanent, as by means of cement, plaster, nails, bolts, 
or screws. See Fixture. 
Affixing. Securely attached. 
Affixus I�fiks�s/. In the civil law, affixed, fixed, or 
fastened to. 
60 
Affliction. A distress of mind or body; that which 
causes continuing anguish or suffering. 
Afforare lref�reriy/. To set a price or value on a thing. 
Afforatus lref�reyt�s/. Appraised or valued, as things 
vendible in a market. 
Afforce I �forsl . To add to; to increase; to strengthen; 
to add force to. 
Afforce the assize I �f6rs oiy �sayz/. In old English 
practice, a method of securing a verdict, where the jury 
disagreed, either by confining them without meat and 
drink, or, more anciently, by adding other jurors to the 
panel, to a limited extent, until twelve could be found 
who were unanimous. 
Afforciamentum I�forsh�ment�m/. In old English law, 
a fortress or stronghold, or other fortification. The 
calling of a court upon a solemn or extraordinary occa
sion. 
Afforest I �f6r�stl . To convert land into a forest in the 
legal sense of the word. 
Afforestation I �for�steysh�n/. The turning of a part of 
a country into forest or woodland or subjecting it to 
forest law, q.v. 
Affouage lafuwiJ.zh/. In French law, the right of the 
inhabitants of a commune or section of a commune to 
take from the forest the fire-wood which is necessary for 
their use. 
Affranchir lafronshir/. L. Fr. To set free. 
Affranchise I �frrenchayzl . To liberate; to make free. 
Affray. A public offense at common law, it is the mutu-
al combat of two or more persons in a public place to the 
terror of the people. Matter of Drakeford, 32 N.C.App. 
113, 230 S.E.2d 779, 782. It differs from a riot or duel in 
not being premeditated. Payne v. State, Ala.Cr.App., 
391 So.2d 140. See also Disorderly conduct; Duel; Fight; 
Riot. 
Affrectamentum I �frekt�ment�m/. Affreightment; a 
contract for the hire of a vessel. 
Affreightment I �freytm�nt/. A contract of affreight
ment is a contract with a ship-owner to hire his ship, or 
part of it, for the carriage of goods. The Fred Smartley, 
Jr., C.C.A.Va., 100 F.2d 971, 973. Such a contract gener
ally takes the form either of a charter-party or of a bill 
of lading . 
Affretement hfretmon/. Fr. In French law, the hiring 
of a vessel; affreightment (q.v.). Called also nolisse
ment. 
Affri lrefray/. In old English law, plow cattle, bullocks 
or plow horses. Aff ri, or afri carucre; beasts of the 
plow. 
Affront I �fr;)nt/. An insult or indignity; assault, inso
lence. 
A fine force ley fayn f6rs/. Of pure necessity. 
A.F.L. American Federation of Labor. Merged with 
CIO (Congress of Industrial Organizations) in 1955.

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61 
A force ley fors/. Of necessity. 
A force et armis ley fors et arm;}s/. With force and 
arms. 
Mo rementioned. See Aforesaid. 
Aforesaid. Before, or already said, mentioned, or recit
ed; premised. Preceding; opposite of following. 
Mo rethought. In criminal law, deliberate; planned; 
premeditated; prepense. As used in the definition of 
murder in the first degree, means thought of beforehand 
and for any length of time, however short, before the 
doing of the act, and is synonymous with premeditation. 
See Malice aforethought; Premeditation. 
A forfait et sans garantie I a forfey ey son garontiy I. 
In French law, a formula used in indorsing commercial 
paper, and equivalent to "without recourse." 
A fortiori ley forshiyoray I. With stronger reason; 
much more. A term used in logic to denote an argu
ment to the effect that because one ascertained fact 
exists, therefore another, which is included in it, or 
analogous to it, and which is less improbable, unusual, 
or surprising, must also exist. 
After. Later, succeeding, subsequent to, inferior in point 
of time or of priority or preference. Subsequent in time 
to. Cheney v. National Surety Corporation, 256 A.D. 
1041, 10 N.Y.S.2d 706. On and after. New York Trust 
Co. v. Portland Ry. Co., 197 A.D. 422, 189 N.Y.S. 346, 
348. 
After-acquired. Acquired after a particular date or 
event. Thus, a judgment is a lien on after-acquired 
realty, i.e., land acquired by the debtor after entry of the 
judgment. 
After acquired property. Property of debtor which is 
acquired after security transaction covering property 
already owned is perfected. Property acquired after the 
date of the agreement usually becomes additional securi
ty for payment of the indebtedness if an after-acquired 
property provision is included in the agreement. See 
UCC § 9-204, and After acquired property clause, infra. 
May also refer to property acquired by testator after 
execution of will. 
In bankruptcy law, with certain exceptions, the bank
ruptcy estate includes any interest in property that the 
estate acquires after commencement of the case. Bank
ruptcy Code § 541(a). 
After acquired property clause. A clause in a mort
gage providing that any property acquired by the bor
rower after the date of the loan and mortgage will 
automatically become additional security for the loan. 
After acquired title. Doctrine under which title ac
quired by grantor who previously attempted to convey 
title to land which he did not in fact own, inures 
automatically to benefit of prior grantees. Morris v. 
Futischa, 194 Okl. 224, 148 P.2d 986, 987. The doctrine 
provides that, although the sale of another's property is 
null, the purchaser is entitled to the benefit of any title 
subsequently acquired by the seller. Acree v. Shell Oil 
AGAINST THE EVIDENCE 
Co., D.C.La., 548 F.Supp. 1150, 1156. See Estoppel (Es
toppel by deed). 
After born child. Refers to child born after execution of 
will or to child born after time in which class gift closes. 
Generally, birth of child after father has executed his 
will does not revoke will. See En ventre sa mere; Heirs; 
Posthumous child. 
Mte r born heirs. A person entitled to property born 
after the death of the ancestor intestate. See Descent; 
Heirs. 
After-discovered. Discovered or made known after a 
particular date or event. 
Mter-discovered evidence. See Evidence. 
After-market. Term describing the market for a securi
ty after it has been initially sold by the issuer through 
underwriters. 
Afternoon. May mean the whole time from noon to 
midnight (e.g. U.C.C. § 4-104(1)(b» , or it may mean the 
earlier part of that time as distinguished from evening, 
or may mean that part of day between noon and eve
ning. 
After sight. This term as used in a bill payable so many 
days after sight, means after legal sight; that is, after 
legal presentment for acceptance. The mere fact of 
having seen the bill or known of its existence does not 
constitute legal "sight." 
After the fact. Subsequent to an event from which time 
is reckoned, e.g. accessory after fact is one who harbors, 
conceals or aids in concealment of the principal felon 
after the felony has been committed. 
Mt erthought. A thought composed after the event and 
with deliberation. 
Afterward, afterwards. Subsequent in point of time; 
synonymous with "thereafter." 
Against. Adverse to; contrary. In re Dean's Estate, 350 
Mo. 494, 166 S.W.2d 529, 533. Signifies discord or 
conflict; opposed to; without the consent of; in conflict 
with. Sometimes meaning "upon," which is almost, if 
not altogether, synonymous with word "on." Northern 
Pac. Ry. Co. v. Gas Development Co., 103 Mont. 214, 62 
P.2d 204, 205. 
Against interest. Commonly used to describe a declara
tion or admission by one, the content of which is adverse 
to his position, interest or title; e.g., an exception to 
hearsay rule is a declaration by one against his pecuni
ary or proprietary interest at the time when it was 
made. Fed.Evid.Rule 804. See also Admission; Declara
tion (Declarations against interest). 
Against public interest. An agreement or act which is 
or has been declared to be adverse to the general good or 
public welfare; such that a judge may on his own 
declare void. See Public interest. 
Against the evidence. See Against the weight of the 
evidence.

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AGAINST THE FORM OF THE STATUTE 
Against the form of the statute. Technical words 
which must be used in framing an indictment for a 
breach of the statute prohibiting the act complained of. 
The Latin phrase is contra forman statuti, q. v. 
Against the law. A decision is "against the law" for 
purposes of a motion for new trial where the evidence is 
insufficient in law and without conflict on any material 
point. In re Marriage of Beilock, 81 C.A.3d 713, 146 
Cal. Rptr. 675, 684. Such exists when there is a failure 
to find on material issue, or when findings are irrecon
cilable or where evidence is insufficient in law and 
without conflict on any material point. Schmeltzer v. 
Gregory, 266 C.A.2d 420, 72 CaLRptr. 194, 196. 
Against the peace. A technical phrase used in alleging 
a breach of the peace. 
Against the weight of the evidence. Contrary to the 
evidence. Russell v. Pilger, 113 Vt. 537, 37 A.2d 403, 
411. A finding is "against the manifest weight of the 
evidence" if an opposite conclusion is clearly evident. 
Burke v. Board of Review, 2 Dist., 132 IlLApp.3d 1094, 
87 Ill. Dec. 823, 477 N.E.2d 1351, 1356. For judgement 
to be considered such, it must appear that conclusions 
opposite to those reached by the trier of fact are clearly 
evident. Wood v. Illinois Liquor Control Commission, 55 
IlLApp.3d 228, 13 IlLDec. 443, 371 N.E.2d 138, 140. If a 
verdict is against the weight of the evidence, a new trial 
may be granted under Fed.R.Civ.P. 59(a). See also Di
rected verdict; Non obstante verdicto; Weight of evi
dence. 
Against the will. Technical words used in framing an 
indictment for robbery from the person, rape and some 
other offenses. See also Coercion; Duress; Force. 
Agalma / ;}grelm;}/. An impression or image of anything 
on a seaL 
Agard /;}gard/. L. Fr. An award. Nul fait agard /n�l 
feyt agard/; no award made. 
Agarder /agardey/. L. Fr. To award, adjudge, or deter
mine; to sentence, or condemn. 
Age. The length of time during which a person has 
lived. The time at which one attains full personal 
rights and capacities. In law the term signifies those 
periods in the lives of persons of both sexes which enable 
them to do certain acts which, before they had arrived 
at those periods, they were prohibited from doing. See 
e.g. Age of consent; Age of majority; Legal age; Majority. 
As used in particular statutes, the term implies dis
ability and, by definition, has been applied to all minors 
under a certain age and to others disabled by old age. 
Hampton v. Ewert, C.C.A.okL, 22 F.2d 81, 87. 
Age discrimination act. Federal legislation prohibiting 
unfair and discriminatory treatment in employment on 
the basis of age. The Act generally covers individuals at 
least 40 years of age. Age Discrimination in Employ
ment Act of 1967, as amended. 29 V.S.C.A. § 621 et seq. 
Aged person. One advanced in years; refers to his or 
her chronological, not mental age. 
62 
Agency. A relationship between two persons, by agree
ment or otherwise, where one (the agent) may act on 
behalf of the other (the principal) and bind the principal 
by words and actions. Relation in which one person 
acts for or represents another by latter's authority, 
either in the relationship of principal and agent, master 
and servant, or employer or proprietor and independent 
contractor. Gorton v. Doty, 57 Idaho 792, 69 P.2d 136, 
139. It also designates a place at which business of 
company or individual is transacted by an agent. John
son Freight Lines v. Davis, 170 Tenn. 177, 93 S.W.2d 
637, 639. The relation created by express or implied 
contract or by law, whereby one party delegates the 
transaction of some lawful business with more or less 
discretionary power to another, who undertakes to 
manage the affair and render to him an account thereof. 
State ex reL Cities Service Gas Co. v. Public Service 
Commission, 337 Mo. 809, 85 S.W.2d 890, 894. Or rela
tionship where one person confides the management of 
some affair, to be transacted on his account, to other 
party. Or where one party is authorized to do certain 
acts for, or in relation to the rights or property of the 
other. But means more than tacit permission, and 
involves request, instruction, or command. Klee v. V. 
S., C.C.A.Wash., 53 F.2d 58, 61. The consensual relation 
existing between two persons, by virtue of which one is 
subject to other's controL Tarver, Steele & Co. v. Pen
dleton Gin Co., Tex.Civ.App., 25 S.W.2d 156, 159. 
Agency is the fiduciary relation which results from 
the manifestation of consent by one person to another 
that the other shall act on his behalf and subject to his 
control, and consent by the other so to act. Restate
ment, Second, Agency § 1. 
See also Agent; Authority. 
Actual agency. Exists where the agent is really em
ployed by the principaL 
Administrative agency. See Adminis trative agency. 
Agency by estoppel. One created by operation of law and 
established by proof of such acts of the principal as 
reasonably lead third person to the conclusion of its 
existence. Arises where principal, by negligence in fail
ing to supervise agent's affairs, allows agent to exercise 
powers not granted to him, thus justifying others in 
believing agent possesses requisite authority. 
Deed of agency. A revocable and voluntary trust for 
payment of debts. 
Del credere. Type of agency in which agent is entrusted 
with goods, documents or securities and in which he is 
given broad authority to collect from the buyer and in 
some cases has been held responsible for the buyer's 
solvency. 
Exclusive agency. An agreement by owner that during 
life of contract he will not sell property to a purchaser 
procured by another agent, which agreement does not 
preclude owner himself from selling to a purchaser of 
his own procuring, while a contract giving a broker 
"exclusive sale" is more than such exclusive agency, and 
is an agreement by the owner that he will not sell the

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63 
property during the life of the contract to any purchaser 
not procured by the broker in question. See also Exclu
sive agency. 
Executive agency. See that title. 
General agency. That which exists when there is a 
delegation to do all acts connected with a particular 
trade, business or employment. It implies authority on 
the part of the agent to act without restriction or qualifi
cation in all matters relating to the business of his 
principal. 
Implied agency. One created by act of parties and 
deduced from proof of other facts. It is an actual 
agency, proved by deductions or inferences from other 
facts, and third party need have no knowledge of the 
principal's acts, nor have relied on them. 
One which occurs when agent and principal have no 
express understanding as to agent's appointment but 
their conduct suggests agency arrangement, and finding 
of implied agency depends on facts and circumstances 
for which principal is responsible which imply that 
principal intended to create agency. Stram v. Miller, 
Mo.App., 663 S.W.2d 269, 274. 
Intervening agency. See that title. 
Ostensible agency. One which exists where the principal 
intentionally or by want of ordinary care causes a third 
person to believe another to be his agent who is not 
really employed by him. See also Agency by estoppel, 
above. 
Special agency. One in which the agent is authorized to 
conduct a single transaction or a series of transactions 
not involving a continuity of service. 
Universal agency. One in which agent is empowered to 
conduct every transaction lawfully delegable by princi
pal to agent. 
Agency by operation of law. See Agency by estoppel 
under Agency, supra. 
Agency coupled with an interest. A relationship 
known to the law of agency wherein the agent has an 
interest in the property or subject matter in which he is 
dealing. This special type of agency relationship will 
not terminate automatically upon the death of the prin
cipal. 
Interest in continued existence of power or authority 
to act with reference to business, where secured by 
contract and based on consideration moving from agent 
to principal looking to exercise of power as means of 
reimbursement, creates agency coupled with an interest. 
Agent must have an interest or estate in the thing to be 
disposed of or managed under the power. 
Agency in fact. An agency relationship established by 
agreement of principal and agent as distinguished from 
one imposed by law; e.g. agency by estoppel. 
Agency of the United States. A department, division, 
or administration within the federal government. 
AGENT 
Agency relationship. An employment for purpose of 
representation in establishing legal relations between 
principal and third persons. See Agency; Agent. 
Agency shop. A union-security device whereby, in or
der to continue employment, any nonunion member 
employee is required to pay to the Union sums equiva
lent to those paid by union members, either in an 
amount equal to both union dues and initiation fees, or 
in an amount equal to dues alone. Ficek v. Internation
al Broth. of Boilermakers, Iron Ship Builders, Black
smiths, Forgers and Helpers, Local # 647, N.D., 219 
N.W.2d 860, 862. See also Open shop. 
Agenda. Memoranda of things to be done, as items of 
business or discussion to be brought up at a meeting; a 
program consisting of such items. 
Agenesia / eyj:miyz(i)y�/. Impotentia generandi; sexual 
impotence; incapacity for reproduction, existing in ei
ther sex, whether arising from structural or other 
causes. 
Agenfrida. In Saxon law, the true master or owner of a 
thing. 
Agenhina. in Saxon law, a guest at an inn, who, having 
stayed there for three nights, was then accounted one of 
the family. 
Agens /eyj:mz/. Lat. An agent, a conductor, or manag
er of affairs. Distinguished from factor, a workman. A 
plaintiff. 
Agent. A person authorized by another (principal) to act 
for or in place of him; one intrusted with another's 
business. Humphries v. Going, D.C.N.C., 59 F.R.D. 583, 
587. One who represents and acts for another under 
the contract or relation of agency (q.v.). A business 
representative, whose function is to bring about, modify, 
affect, accept performance of, or terminate contractual 
obligations between principal and third persons. One 
who undertakes to transact some business, or to manage 
some affair, for another, by the authority and on ac
count of the latter, and to render an account of it. One 
who acts for or in place of another by authority from 
him; a substitute, a deputy, appointed by principal with 
power to do the things which principal may do. One 
who deals not only with things, as does a servant, but 
with persons, using his own discretion as to means, and 
frequently establishing contractual relations between 
his principal and third persons. 
One authorized to transact all business of principal, or 
all of principal's business of some partiCUlar kind, or all 
business at some particular place. Farm Bureau Mut. 
Ins. Co. v. Coffin, 136 Ind. App. 12, 186 N.E.2d 180, 182. 
See also Agency; Bargaining agent; Corporate agent; 
Foreign agent; Forwarding agent; Innocent agent; Serv
ant; Soliciting agent; Subagent; Transfer agent. 
Apparent agent or ostensible agent. One whom the 
principal, either intentionally or by want of ordinary 
care, induces third persons to believe to be his agent, 
though he has not, either expressly or by implication, 
conferred authority on him. A person who, whether or 
not authorized, reasonably appears to third person, be-

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AGENT 
cause of manifestations of another, to be authorized to 
act as agent for such other. Restatement, Second, Agen
cy § 8. 
Bargaining agent. See Bargaining agent. 
Co-agent. One who shares authority to act for the 
principal with another agent and who is so authorized 
by the principal. 
Diplomatic agent. One representing government in 
dealings with foreign government. 
Dual agent. See Co-agent, above. 
Exclusive agent. The only agent permitted to act for 
principal in a particular territory or matter, though the 
principal may act for himself; i.e. exclusive sales territo
ry given to agent does not bar principal from selling in 
this territory. Stahlman v. Nat'l Lead Co., C.A.Miss., 
318 F.2d 388, 393. 
Foreign agent. See Foreign agent. 
General agency business. One not engaged as agent for 
single firm or person, but holding himself out to public 
as being engaged in business of being agent. Comer v. 
State Tax Commission of New Mexico, 41 kM. 403, 69 
P.2d 936. 
General agent. One who is authorized to act for his 
principal in all matters concerning particular business 
or employment of particular nature. Morpul Research 
Corp. v. Westover Hardware, Inc., 263 N.C. 718, 140 
S.E.2d 416, 418. Compare Special agent, below. 
High managerial agent. An officer of a corporation or 
any other agent in a position of comparable authority 
with respect to formulation of corporate policy or the 
supervision in a managerial capacity of subordinate 
employees. 
Independent agent. One who is an independent contrac
tor exercising his own judgment and subject to the one 
who hired him only for the result of the work per
formed. Donroy, Limited v. U. S., C.A.Cal., 301 F.2d 
200, 206. 
Insurance agent. See Insurance. 
Local agent. One appointed to act as the representative 
of a corporation and transact its business generally (or 
business of a particular character) at a given place or 
within a defined district. 
Managing agent. A person who is invested with general 
power, involving the exercise of judgment and discre
tion, as distinguished from an ordinary agent or employ
ee, who acts in an inferior capacity, and under the 
direction and control of superior authority, both in re
gard to the extent of the work and the manner of 
executing the same. One who has exclusive supervision 
and control of some department of a corporation's busi
ness, the management of which requires of such person 
the exercise of independent judgment and discretion, 
and the exercise of such authority that it may be fairly 
said that service of summons upon him will result in 
notice to the corporation. 
64 
Mercantile agents. Agents employed for the sale of 
goods or merchandise are called "mercantile agents," 
and are of two principal classes,-brokers and factors (q. 
v.) ; a factor is sometimes called a "commission agent," 
or "commission merchant." 
Private agent. An agent acting for an individual· in his 
private affairs; as distinguished from a public agent, 
who represents the government in some administrative 
capacity. 
Public agent. An agent of the public, the state, or the 
government; a person appointed to act for the public in 
some matter pertaining to the administration of govern
ment or the public business. Whiteside v. United 
States, 93 U.S. 247, 23 L.Ed. 882. 
Real-estate agent. Person whose business it is to sell, or 
offer for sale, real estate for others, or to rent houses, 
stores, or other buildings, or real estate, or to collect 
rent for others. 
Special agent. One employed to conduct a particular 
transaction or piece of business for his principal or 
authorized to perform a specified act. An agent autho
rized to conduct a single transaction or a series of 
transactions not involving continuity of service. Rowen 
& Blair Electric Co. v. Flushing Operating Corp., 66 
Mich.App. 480, 239 N.W.2d 633, 638. Compare Special 
agent, above. 
Subagent. One authorized by agent to help perform 
functions for principal. Generally, absent express or 
implied authority, an agent has no authority to appoint 
a subagent. The subagent is subject to control by both 
agent and principal. Restatement, Second, Agency § 5. 
Superior agent. See High managerial agent, above. 
Transfer agent. Any person who engages on behalf of 
an issuer of securities or on behalf of itself as an issuer 
of securities in (A) countersigning such securities upon 
issuance; (B) monitoring the issuance of such securities 
with a view to preventing unauthorized issuance, a 
function commonly performed by a person called a regis
trar; (C) registering the transfer of such securities; (D) 
exchanging or converting such securities; or (E) trans
ferring record ownership of securities by bookkeeping 
entry without physical issuance of securities certificates. 
Securities Exchange Act of 1934, § 3, 15 U.S.C.A. § 78c. 
Undercover agent. See that title. 
Universal agent. See Universal agency under topic 
Agency. 
Agentes et consentientes pari prena plectentur / ajen
tiyz at kansenshiyentiyz peray piyna plektentar/. Act
ing and consenting parties are liable to the same punish
ment. 
Agent provocateur /eyjant pravokat(y)ur/. A spy; a 
secret agent hired to penetrate an organization to gath
er evidence against its members or to incite trouble. 
Agent's lien. The legal right agreed in advance to 
payment from a principal for services rendered by an 
agent.

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65 
Age of consent. Age at which persons may marry 
without parental approval. Age at which a female is 
legally capable of agreeing to sexual intercourse and 
below which age the male commits statutory rape if he 
has sexual intercourse with her. See also Legal age; 
Majority; Statutory rape. 
Age of majority. Age at which a person may contract 
sui juris; now 18 in most jurisdictions. Sometimes 
referred to as full age; legal age; majority; adulthood. 
Age at which one may execute a valid will or vote; age 
at which payments for support by parents may generally 
be terminated. See also Legal age; Majority. 
Age of reason. Age at which a child is deemed to be 
capable of acting responsibly; commonly the age of 7. 
In general, one between the ages of 7 and 14 is rebutt
ably presumed to be incapable of committing a crime. 
Below the age of 7 a child is conclusively presumed to be 
incapable of committing crime. See Infancy. 
Ager /eyj';Jr/. Lat. A field; land generally. A portion 
of land enclosed by definite boundaries. 
Aggravate. See Aggravation. 
Aggravated arson. See Arson. 
Aggravated assault. A person is guilty of aggravated 
assault if he: attempts to cause serious bodily injury to 
another, or causes such injury purposely, knowingly or 
recklessly under circumstances manifesting extreme in
difference to the value of human life; or, attempts to 
cause or purposely or knowingly causes bodily injury to 
another with a deadly weapon. Model Penal Code, 
§ 211. 1(2). In all jurisdictions statutes punish such 
aggravated assaults as assault with intent to murder (or 
rob or kill or rape) and assault with a dangerous (or 
deadly) weapon more severely than "simple" assaults. 
See also Assault. 
Aggravated battery. Unlawful application of force to 
another characterized by unusual or serious conse
quences or attending circumstances such as a dangerous 
weapon. This offense was unknown at common law. 
See Aggravated assault. 
Aggravated robbery .. See Robbery. 
Aggravating circumstances. See Aggravation. 
Aggravation. Any circumstance attending the commis-
sion of a crime or tort which increases its guilt or 
enormity or adds to its injurious consequences, but 
which is above and beyond the essential constituents of 
the crime or tort itself. People v. Robinson, 416 N.E.2d 
793, 799. See e.g. Aggravated assault. 
Aggregate. Entire number, sum, mass, or quantity of 
something; total amount; complete whole. One provi
sion under will may be the aggregate if there are no 
more units to fall into that class. Composed of several; 
consisting of many persons united together; a combined 
whole. See also Joinder. 
Aggregate corporation. See Corporation. 
Aggregate income. Total income of husband and wife 
who file a joint tax return. 
AGING OF ACCOUNTS 
Aggregate theory of partnership. A partnership is the 
totality of persons engaged in a business and not an 
entity in itself as in the case of a corporation. 
Aggregatio mentium hi!gr';Jgeysh(iy)ow mensh(iY)';Jm/. 
The meeting of minds. The moment when a contract is 
complete. A supposed derivation of the word "agree
ment," (q. v.). 
Aggregation / regr';Jgeysh';Jn/. The combination of two or 
more elements in patent claims, each of which is un
related, and each of which performs separately and 
without cooperation, where combination does not define 
a composite integrated mechanism. Bowser, Inc. v. U. 
S., 388 F.2d 346, 351, 181 Ct.Cl. 834. Term means that 
the elements of a claimed combination are incapable of 
co-operation to produce a unitary result, and in its true 
sense does not need prior art patents to support it. 
Aggregation doctrine. Rule which precludes totalling 
of claims for Federal jurisdictional amount purposes. 
Georgia Ass'n of Independent Ins. Agents v. Travelers 
Indem. Co., D.C.Ga., 313 F.Supp. 841, 842. 
Aggressor. One who first employs hostile force. Penn 
v. Henderson, 174 Or. 1, 146 P.2d 760, 766. The party 
who first offers violence or offense. He who begins a 
quarrel or dispute, either by threatening or striking 
another, that justifies like response. 
Aggressor corporation. A corporation that attempts to 
obtain control of a publicly held corporation, often by a 
direct cash tender or public exchange offer to sharehold
ers, but also possibly by way of merger, which requires 
agreement or assent of the target's management. See 
Leveraged buyout; Tender offer. 
Aggrieved. Having suffered loss or injury; damnified; 
injured. 
Aggrieved party. One whose legal right is invaded by 
an act complained of, or whose pecuniary interest is 
directly and adversely affected by a decree or judgment. 
One whose right of property may be established or 
divested. The word "aggrieved" refers to a substantial 
grievance, a denial of some personal, pecuniary or prop
erty right, or the imposition upon a party of a burden or 
obligation. See Party; Standing. 
Bankruptcy. A party is "aggrieved," within meaning of 
Bankruptcy Code, if his property may be diminished, his 
burden increased, or his rights detrimentally affected by 
order sought to be reviewed. Klein v. Rancho Montana 
De Oro, Inc., C.A.Cal., 263 F.2d 764, 771. 
Aggrieved person. See Aggrieved party. 
Agiler /';Jjaybr/. In Saxon law, an observer or informer. 
Agillarius /rej';Jleriy';Js/. L. Lat. In old English law, a 
hayward, herdward, or keeper of the herd of cattle in a 
common field. 
Aging of accounts. Arranging the accounts (such as 
receivables or payables) in chronological order and 
grouping the accounts by intervals, such as accounts 
outstanding less than 30 days, 30 to 60 days, and so on. 
The process of classifying accounts receivable by the

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AGING OF ACCOUNTS 
time elapsed since the claim came into existence for the 
purpose of estimating the balance of uncollectible ac
counts as of a given date. 
Agio I�jiyow/. In commercial law, a term used to ex
press the difference in point of value between metallic 
and paper money, or between one sort of metallic money 
and another. 
Agiotage I azh(i)yotazh/. A speculation on the rise and 
fall of the public debt, or the public funds. The specu
lator is called "ag ioteur." 
Agist I�jist/. An ancient law term meant to take in and 
give feed to the cattle of strangers in the king's forest, 
and to collect the money due for the same to the king's 
use. 
Agister I �jist�r I. A person engaged in the business of 
pasturing of livestock as a bailee in consideration of an 
agreed price to be paid by owner of cattle. Walker v. 
Nelson, 137 Colo. 519, 327 P.2d 285, 287. 
Agistment I �jistm�ntl . A particular kind of bailment 
under which a person, for consideration, takes animals 
for care and pasturing on his land, and the person who 
cares for the animals has an "agister's lien" on the 
animals for that care. Hatley v. West, 74 Wash.2d 409, 
445 P.2d 208, 209; A contract whereby a person, called 
an agister, has control of animals and retains possession 
of land. Cox v. Pithoud, 221 C.A.2d 571, 34 Cal. Rptr. 
582, 583. 
There is also agistment of sea-banks, where lands are 
charged with a tribute to keep out the sea; and terrre 
agistatre are lands whose owners must keep up the 
sea-banks. 
In canon law, a composition or mean rate at which some 
right or due might be reckoned. 
Tithe of agist'ment was a small tithe paid to the rector or 
vicar on cattle or other produce of grass lands. It was 
paid by the occupier of the land and not by the person 
who put in his cattle to graze. 
Agistor I �jist�r I. See Agister; Agistment. 
Agitator hl!j�teyt�r/. One who stirs up; excites; ruffles; 
perturbs. One who incessantly advocates a social 
change. 
Agnates I regneytsl regneytiyz/. In the law of descents, 
relations by the father, or on the father's side. This 
word is used in the Scotch law, and by some writers as 
an English word, corresponding with the Latin agnati 
(q.v.). 
Agnati lregneytay/. In Roman law, the term included 
all the cognates who trace their connection exclusively 
through males. A table of cognates is formed by taking 
each lineal ancestor in turn and including all his de
scendants of both sexes in the tabular view. If, then, in 
tracing the various branches of such a genealogical table 
or tree, we stop whenever we come to the name of a 
female, and pursue that particular branch or ramifica
tion no further, all who remain after the descendants of 
women have been excluded are agnates, and their con
nection together is agnatic relationship. All persons are 
66 
agnatically connected together who are under the same 
patria potestas, or who have been under it, or who might 
have been under it if their lineal ancestor had lived long 
enough to exercise his empire. 
The agnate family consisted of all persons living at the 
same time, who would have been subject to the patris 
potestas of a common ancestor, if his life had been 
continued to their time. 
Cognates were all persons who could trace their blood 
to a single ancestor or ancestress, and agnates were 
those cognates who traced their connection exclusively 
through males. Between agnati and cognati there is 
this difference: that, under the name of agnati, cognati 
are included, but not e converso; for instance, a father's 
brother, that is, a paternal uncle, is both agnatus and 
cognatus, but a mother's brother, that is, a maternal 
uncle, is a cognatus but not agnatus. 
Agnatic I regnret�k/. [From agnati, q. v.] Derived from 
or through males. 2 Bl.Comm. 236. 
Agnatio lregneysh(iy)ow/. In the civil law, relationship 
on the fathers' side; the relationship of agnati; agna
tion. Agnatio a patre est. 
Agnation lregneysh�n/. Kinship by the father's side. 
See Agnates; Agnati. 
Agnomen I regn6wm�n/. Lat. An additional name or 
title; a nickname. A name or title which a man gets by 
some action or peculiarity; the last of the four names 
sometimes given a Roman. Thus, Scipio Africanus (the 
African) from his African victories. See Nomen. 
Agnomination I regnom�neysh�n/. A surname; an addi-
tional name or title; agnomen. 
Agony. Extreme physical pain or mental distress. 
Agrapbia I agrrefij�/. See Aphasia. 
Agrarian I �greriy�n/. Relating to land, or to a division 
or distribution of land; as an agrarian law. 
Agrarian laws. In Roman law, laws for the distribution 
among the people, by public authority, of the lands 
constituting the public domain, usually territory con
quered from an enemy. In common parlance the term 
is frequently applied to laws which have for their object 
the more equal division or distribution of landed proper
ty; laws for subdividing large properties and increasing 
the number of landholders. 
Agrarium. A tax upon or tribute payable out of land. 
A gratia ley greysh(iy)�/. By grace; not of right. 
Agreamentum I�griy�ment�m/. In old English law, 
agreement; an agreement. 
Agree. To concur; come into harmony; give mutual 
assent; unite in mental action; exchange promises; 
make an agreement; arrange; to settle. Concur or 
acquiesce in; approve or adopt. Agreed or agreed to, are 
frequently used (like accord), to show the concurrence 
or harmony of cases; e.g. Agreed per curiam. Usually 
implies some contractual undertaking. To grant or cov
enant, as when a grantor agrees that no building shall

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67 
be erected on an adjoining lot; or a mortgagor agrees to 
cause all taxes to be paid. See Agreement; Contract. 
Agreed. Settled or established by agreement. Common
ly synonymous with "contracted." 
Agreed amount clause. Provision in insurance policy 
that the insured will carry a stated amount of insurance 
coverage. 
Agreed case. See Case agreed on under Case. 
Agreed judgment. See Judgment. 
Agreed price. The consideration for sale of goods ar
rived at by mutual agreement as contrasted with "open 
price". U.C.C. § 2-305. 
Agreed statement of facts. A statement of facts, 
agreed on by the parties as true and correct, to be 
submitted to a court for a ruling on the law of the case. 
United States Trust Co. v. New Mexico, 183 U.S. 535, 22 
S.Ct. 172, 46 L.Ed. 315. See Case agreed on under Case. 
See also Declaratory judgment; Stipulation. 
Agreed statement on appeal. Narrative statement of 
facts in case which may be filed on appeal in lieu of 
report of proceedings below. It is required that all 
parties agree to content of narrative. 
Agreed value. The worth or value of property upon 
which persons agree beforehand as in a partnership 
contract in which the parties agree on the value of a 
partner's interest in a specified amount. Walraven v. 
Ramsay, 335 Mich. 331, 55 N.W.2d 853, 856. 
Agreement. A meeting of two or more minds; a coming 
together in opinion or determination; the coming to
gether in accord of two minds on a given proposition. In 
law, a concord of understanding and intention between 
two or more parties with respect to the effect upon their 
relative rights and duties, of certain past or future facts 
or performances. The consent of two or more persons 
concurring respecting the transmission of some proper
ty, right, or benefits, with the view of contracting an 
obligation, a mutual obligation. 
A manifestation of mutual assent on the part of two 
or more persons as to the substance of a contract. 
Restatement, Second, Contracts, § 3. 
The act of two or more persons, who unite in express
ing a mutual and common purpose, with the view of 
altering their rights and obligations. The union of two 
or more minds in a thing done or to be done; a mutual 
assent to do a thing. A compact between parties who 
are thereby subjected to the obligation or to whom the 
contemplated right is thereby secured. 
Although often used as synonymous with "contract", 
agreement is a broader term; e.g. an agreement might 
lack an essential element of a contract. The bargain of 
the parties in fact as found in their language or by 
implication from other circumstances including course 
of dealing or usage of trade or course of performance. 
U.C.C. § 1-201(c); Uniform Consumer Credit Code, 
§ 1.301(3). 
The writing or instrument which is evidence of an 
agreement. 
AGREER 
See also Binding agreement; Compact; Consent; Con
tract; Covenant; International agreements; Meeting of 
minds. 
Classification 
Conditional agreements. The operation and effect of 
such depend upon the existence of a supposed state of 
facts, or the performance of a condition, or the happen
ing of a contingency. 
Executed agreements. Such have reference to past 
events, or which are at once closed and where nothing 
further remains to be done by the parties. 
Executory agreements. Such agreements as are to be 
performed in the future. They are commonly prelimi
nary to other more formal or important contracts or 
deeds, and are usually evidenced by memoranda, parol 
promises, etc. 
Express agreements. Those in which the terms and 
stipulations are specifically declared and avowed by the 
parties at the time of making the agreement. 
Implied agreement. (1) Implied in fact. One inferred 
from the acts or conduct of the parties, instead of being 
expressed by them in written or spoken words. (2) 
Implied in law; more aptly termed a constructive or 
quasi contract: One where, by fiction of law, a promise 
is imputed to perform a legal duty, as to repay money 
obtained by fraud or duress. Baltimore Mail S. S. Co. v. 
U. S., C.C.A.Md., 76 F.2d 582, 585. One inferred by the 
law where the conduct of the parties with reference to 
the subject-matter is such as to induce the belief that 
they intended to do that which their acts indicate they 
have done. Baltimore & O. R. Co. v. U. S., 261 U.S. 592, 
43 S.Ct. 425, 67 L.Ed. 816. 
Parol agreements. At common law, such as are either 
by word of mouth or are committed to writing, but are 
not under seal. The common law draws only one great 
line, between things under seal and not under seal. 
Agreement for insurance. An agreement often made 
in short terms preliminary to the filling out and deliv
ery of a policy with specific stipulations. See also Bind
er. 
Agreement not to be performed within a year. An 
agreement that necessarily must require more than year 
for performance. Incapable of performance within one 
year. Street v. Maddux, Marshall, Moss & Mallory, 58 
App.D.C. 42, 24 F.2d 617, 619. 
Agreement of sale; agreement to sell. An agreement 
of sale may imply not merely an obligation to sell, but 
an obligation on the part of the other party to purchase, 
while an agreement to sell is simply an obligation on the 
part of the vendor or promisor to complete his promise 
of sale. Treat v. White, 181 U.S. 264, 21 S.Ct. 611, 45 
L.Ed. 853. It is a contract to be performed in future, 
and, if fulfilled, results in a sale; it is preliminary to 
sale and is not the actual sale. 
Agreer /regreyey/. Fr. In French marine law, to rig or 
equip a vessel.

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AGREZ 
Agrez /:Jgrey/. Fr. In French marine law, the rigging 
or tackle of a vessel. 
Agri / regray / . Arable lands in common fields. 
Agricultural. Pertaining to, or dealing with, agricul
ture; also, characterized by or engaged in farming as 
the leading pursuit. Oak Woods Cemetery Ass'n v. 
Murphy, 383 Ill. 301, 50 N.E.2d 582, 587. See Farming 
operation; Farming products; Farming purposes; Hus
bandry. 
. Agricultural commodities. Generally synonymous 
with agricultural or farm products, and not including 
agricultural implements. Bowles v. Rock, D.C.Neb., 55 
F.Supp. 865, 868. See Commodities. 
Agricultural employment. Synonymous with farm la
bor, including all farm work and work incidental there
to. 
Agricultural labor. Services performed on farm, for 
owner or tenant. California Employment Commission 
v. Butte Candy Rice Growers Ass'n, 25 Cal.2d 624, 154 
P.2d 892, 894. Broader in meaning than farming or 
farm labor and includes one engaged in horticulture, St. 
Louis Rose Co. v. Unemployment Compensation Com
mission, 348 Mo. 1153, 159 S.W.2d 249, 250, crop dust
ing, Florek v. Sparks Flying Service, Inc., 83 Idaho 160, 
359 P.2d 511, 514, and similar services, Latimer v. 
United States, D.C.Cal., 52 F.Supp. 228, 234, 235, 236, 
237. As is excepted from the Unemployment Compensa
tion Law, is a broad term and includes farming in all of 
its incidents, such as gardening, horticulture, viticul
ture, dairying, poultry, bee raising, and ranching, and 
refers to the field or farm with all its wants, appoint
ments and products. Pioneer Potato Co. v. Division of 
Employment Sec. Dept. of Labor and Industry, 31 N.J. 
Super. 553, 107 A.2d 519, 520, 521. 
Agricultural lien. A statutory lien to secure money or 
supplies advanced to an agriculturist to be expended or 
employed in the making of a crop and attaching to that 
crop only. 
Agricultural product. Things which have a situs of 
their production upon the farm and which are brought 
into condition for uses of society by labor of those 
engaged in agricultural pursuits as contradistinguished 
from manufacturing or other industrial pursuits. That 
which is the direct result of husbandry and the cultiva
tion of the soil. The product in its natural unmanufac
tured condition. 
Agriculture. The science or art of cultivating the soil, 
harvesting crops, and raising livestock and also as the 
science or art of the production of plants and animals 
useful to man and in varying degrees the preparation of 
such products for man's use and their disposal. Miller 
v. Dixon, 176 Neb. 659, 127 N.W.2d 203, 206. 
Agri limitati /regray lim:Jteyday/. In civil law, lands 
whose boundaries are strictly limited by the lines of 
government surveys. 
In Roman law, lands belonging to the state by right of 
conquest, and granted or sold in plots. 
68 
Aguilar.Spinelli test / agiyhir sp:Jneliy /. The "Aguilar
Spinelli" test requires that search warrant affidavits 
disclose both the underlying circumstances necessary to 
enable the magistrate independently to judge the validi
ty of the informant's conclusion and make some showing 
of reliability of the informant. Aguilar v. Texas, 378 
U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. U.S., 
393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. 
Ahupuaa. With exceptions, in ancient Hawaii, division 
of land known as "ahupuaa" generally ran from sea to 
mountains, enabling chief and people to obtain fish and 
seaweed from ocean and fuel, canoe timber and moun
tain birds and right-of-way to obtain these things. Pala
rna v. Sheehan, 50 Hawaii 298, 440 P.2d 95, 97. 
AICPA. American Institute of Certified Public Account
ants. 
Aid. To support, help, assist or strengthen. Act in 
cooperation with; supplement the efforts of others. 
State v. Upton, Iowa, 167 N.W.2d 625, 628. 
Distinguished from abet. "Aid" within aider and abet
tor statute means to help, to assist, or to strengthen 
while "abet" means to counsel, to encourage, to incite or 
to assist in commission of criminal act. State v. Troco
daro, 36 Ohio App.2d 1, 301 N.E.2d 898, 902. 
Aid and abet. Help, assist, or facilitate the commission 
of a crime, promote the accomplishment thereof, help in 
advancing or bringing it about, or encourage, counsel, or 
incite as to its commission. State v. Fetters, Iowa, 202 
N.W.2d 84, 90. It comprehends all assistance rendered 
by words, acts, encouragement, support, or presence, 
actual or constructive, to render assistance if necessary. 
See Abet; Abettor; Accessory; Accomplice; Aider and 
abettor; Harbor. 
Aid and comfort. Help; support; assistance; counsel; 
encouragement. As an element in the crime of treason 
(Constitution of the United States, Art. III, § 3), the 
giving of "aid and comfort" to the enemy may consist in 
a mere attempt. It is not essential to constitute the 
giving of aid and comfort that the enterprise commenced 
should be successful and actually render assistance. An 
act which intentionally strengthens or tends to strength
en enemies of the United States, or which weakens or 
tends to weaken power of the United States to resist and 
attack such enemies. Any intentional act furthering 
hostile designs of enemies of the United States. United 
States v. Haupt, D.C.Ill., 47 F.Supp. 836, 839. 
Aid bond. See Bond. 
Aider and abettor. One who assists another in the 
accomplishment of a common design or purpose; he 
must be aware of, and consent, to such design or pur
pose. Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 277. 
One who advises, counsels, procures, or encourages an
other to commit a crime, himself being guilty of some 
overt act or advocacy or encouragement of his principal, 
actually or constructively present when crime is com
mitted, and participating in commission thereof by some 
act, deed, word, or gesture, Turner v. Commonwealth, 
268 Ky. 311, 104 S.W.2d 1085, and sharing the criminal

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69 
intent of the principal. One who assists another to 
commit a crime; may be a principal, if present, or an 
accessory before or after fact of crime. The crime must 
usually be a felony because all parties to misdemeanor 
are generally principals. See also Abettor. 
Aider by verdict. The healing or remission, by a ver
dict rendered, of a defect or error in pleading which 
might have been objected to before verdict. The pre
sumption of the proof of all facts necessary to the 
verdict as it stands, coming to the aid of a record in 
which such facts are not distinctly alleged. Amendment 
of pleadings to conform to the evidence is provided for 
by Fed.R.Civil P. 15. 
Aiding and abetting. See Aid and abet. 
Aiding and abetting. Assisting in or otherwise facili
tating the commission of a crime. See Aider and abettor. 
Aiding an escape. Any overt act, intended and useful 
to assist attempted or completed departure of prisoner 
from lawful custody before his discharge by due process 
of law. See e.g. Model Pen.Code § 242.6. See Accessory 
(Accessory after the fact); Obstructing justice. 
Aid of the king. In old English law, the king's tenant 
prayed this, when rent was demanded of him by others. 
Aid prayer. In English practice, a proceeding formerly 
made use of, by way of petition in court, praying in aid 
of the tenant for life, etc., from the reversioner or 
remainderman, when the title to the inheritance was in 
question. It was a plea in suspension of the action. 3 
Bl.Comm. 300. 
Aids. In feudal law, originally mere benevolences grant
ed by a tenant to his lord, in times of distress; but at 
length the lords claimed them as of right. They were 
principally three: (1) To ransom the lord's person, . if 
taken prisoner; (2) to make the lord's eldest son and 
heir apparent a knight; (3) to give a suitable portion to 
the lord's eldest daughter on her. A reasonable aid was 
a duty claimed by the lord of the fee of his tenants, 
holding by knight service, to marry his daughter, etc. 
Abolished by Tenures Abolition Act of 1660. 
Also, extraordinary grants to the Crown by the house 
of commons, which were the origin of the modern sys
tem of taxation. 2 Bl.Comm. 63, 64. 
AIDS. Acquired Immune Deficiency Syndrome. A virus 
which attacks a person's immune system and damages 
his or her ability to fight other diseases. Without a 
functioning immune system to ward off other germs, 
person becomes vulnerable to becoming infected by bac
teria, fungi, and other viruses and malignancies which 
may cause life-threatening illness, such as pneumonia, 
meningitis and cancer. 
Aid societies. See Benefit societies. 
Aiel (spelled also Ayel, Aile, Ayle, and Aieul) liy(�)l/. L. 
Fr. A grandfather. 
A writ which lay where the grandfather was seized in 
his demesne as of fee of any lands or tenements in fee 
simple the day that he died, and a stranger abated or 
A JURE SUO CADUNT 
entered the same day and dispossessed the heir. 3 
Bl.Comm. 186. 
Aielesse /iy(�)les/. A Norman French term signifying 
"grandmother" . 
Aile liyl/. A corruption of the French work aieul, 
grandfather. See Aiel. 
Ailment. Commonly means indisposition of body or 
mind; a slight illness. Mutual Life Ins. Co. of New 
York v. Burton, 167 Tenn. 606, 72 S.W. 778, 781. In life 
insurance application, term does not include mere tem
porary indisposition, which though requiring medical 
treatment is readily remediable, Zogg v. Bankers' Life 
Co. of Des Moines, Iowa, C.C.A.W.Va., 62 F.2d 575, 578; 
nor passing disorders which could not properly be called 
diseases. 
Aim a weapon. To point it intentionally. "Aim" de
notes direction toward some minute point in an object, 
while "point" implies direction toward the whole object. 
Ainesse leynes/. In French feudal law, the right or 
privilege of the eldest born; primogeniture; esnecy. 
Airbill. A document serving for air transportation as a 
bill of lading does for marine or rail transportation, and 
includes an air consignment note or air waybill. U.C.C. 
§ 1-201(6). 
Air piracy. Any seizure or exercise of control, by force 
or violence or threat of force or violence and with 
wrongful intent, of any aircraft in flight in air com
merce. 49 U.S.C.A. § 1472(i). 
Air rights. The right to use all or a portion of the air 
space above real estate. Such right is vested by grant; 
e.g. fee simple, lease, or other conveyance. While com
mercial airlines have a right to fly over one's land, if 
such "flight paths" interfere with the owners use of such 
land, the owner is entitled to recover the extent of 
actual damage suffered by him. United States v. Caus
by, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. On the 
other hand, the owner of the land is precluded by state 
and federal laws from polluting the air. 
Aisiamentum (spelled also Esamentum, Aismentum ) 
lE�yshiy�ment�m/. In old English law, an easement. 
Aisne or eigne leyn/. In old English law, the eldest or 
first born. 
A issue. At issue. 
Ajournment lazhurnmon/. In French law, the doc
ument pursuant to which an action or suit is com
menced, equivalent to the writ of summons in England. 
Actions, however, are in some cases commenced by 
requete or petition. 
A jure suo cadunt ley juriy s(y)uwow kred;)nt/. They 
(for example, persons abandoning chattels) lose their 
right. 
A justitia (quasi a quodam fonte) omnia jura ema
nant ley j�stish(iy)� (kweyzay ey kwond�m fontiy) om
niy� jur� em�nrentl. From justice, as a fountain, all 
rights flow.

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A.K.A. 
A.k.a. Also known as. See Alias. 
Akin I�kin/. In old English law, of kin. "Next-a-kin." 
See Next of kin. 
AI. L. Fr. At the; to the. Al barre; at the bar. Al huis 
d'esglise; at the church door. 
A la grande grevaunce la l� grond gr�von(t)s/. To the 
great grievance. 
A large I a hirzh/. Free; at large. 
Alarm list. The list of persons liable to military 
watches, who were at the same time exempt from train
ings and musters. Const.Mass. c. 11, § 1, art. 10; Pub. 
St.Mas s.1882, p. 1287. 
A latere ley lret�riy/. Lat. Collateral. Used in this 
sense in speaking of the succession to property. From, 
on, or at the side; collaterally. A latere ascendit (jus). 
The right ascends collaterally. Justices of the Curia 
Regis are described as a latere regis residentes, sitting at 
the side of the King. 
In the Civil Law, a synonym for e trans verso, across. 
Applied also to a process or proceeding, meaning out 
of the regular or lawful course; incidentally or casually. 
From the side of; denoting closeness of intimacy or 
connection, as a court held before auditors specialiter a 
latere regis destinatis. 
Apostolic; having full powers to represent the Pope as 
if he were present. 
Albacea lalb�sey�/. In Spanish law, an executor or 
administrator; one who is charged with fulfilling and 
executing that which is directed by the testator in his 
testament or other last disposition. 
Alba firma /CHb� f�rm�/. In old English law, white rent; 
rent payable in silver or white money, as distinguished 
from that which was anciently paid in corn or provi
sions, called black mail, or black rent; reditus nigri. 
Albanagium /CHb�neyjiy�m/. In old French law, the 
state of alienage; of being a foreigner or alien. 
Albanus lrelbeyn�s/. In old French law, a stranger, 
alien, or foreigner. 
Albinatus /Cl!lb�neyt�s/. In old French law, the state or 
condition of an alien or foreigner. 
Albinatus jus /CHb�neyd�s j�s/. In old French law, the 
droit d'aubaine in France, whereby the king, at an 
alien's death, was entitled to all his property, unless he 
had peculiar exemption. Repealed in 179l. 
Album breve lrelb�m briyviy/. A blank writ; a writ 
with a blank or omission in it. 
Albus liber I relb�s layb�r I. The white book; an ancient 
book containing a compilation of the law and customs of 
the city of London. 
Alcaide /CHkayiydey I. Jailer, warden, governor of a 
fortress. 
Alcoholic liquors. "Alcoholic, spirituous and malt li
quors" mean intoxicating liquors which can be used as a 
beverage, and which, when drunk to excess, will produce 
70 
intoxication. F. W. Woolworth Co. v. State, 72 Okl.Cr. 
125, 113 P.2d 399, 403. 
Alcoholism. The pathological effect (as distinguished 
from physiological effect) of excessive indulgence in in
toxicating liquors. See also Chronic alcoholism; Intoxi
cation. 
Alderman. Municipal officer; member of the legislative 
body of a municipality. Often called a councilman. 
Aldermannus I reld�rmren�sl 01 0 I. L. Lat. An alderman. 
Aldermannus civitatis vel burgi lreld�rmren�s 
siv�teyt�s vel b�rjay/. In old English law, alderman of a 
city or borough, from which the modern office of alder
man has been derived. 
Aldermannus hundredi seu wapentachii I reld�rmren�s 
h�ndr�day syuw wop�nteykiyay I. Alderman of a hun
dred or wapentake. 
Aldermannus regis I reld�rmren�s riyj�s/. Alderman of 
the king. So called, either because he received his 
appointment from the king or because he gave the 
judgment of the king in the premises allotted to him. 
Aldermannus totius anglire I reld�rmren�s towshiy�s 
reI]gliyiy I. Alderman of all England. An officer among 
the Anglo-Saxons; similar to the chief justiciary of Eng
land in later times. 
Alea leyliy�/. Lat. In the civil law, a game of chance or 
hazard. The chance of gain or loss in a contract. 
Aleator I eyliyeyt�r I. Lat. (From alea, q. v. , meaning 
dice). In the civil law, a gamester; one who plays at 
games of hazard. 
Aleatory contract I eyliy�toriy kontrrekt/. A mutual 
agreement, of which the effects, with respect both to the 
advantages and losses, whether to all the parties or to 
some of them, depend on an uncertain event. Restate
ment of Contracts, § 29l. 
Contracts in which promise by one party is condi
tioned on fortuitous event. Southern Surety Co. v. Mac
Millan Co., C.C.A.Okl., 58 F.2d 541, 549. A contract, the 
obligation and performance of which depend upon an 
uncertain event, such as insurance, engagements to pay 
annuities, and the like. A contract is aleatory or haz
ardous when the performance of that which is one of its 
objects depends on an uncertain event. It is certain 
when the thing to be done is supposed to depend on the 
will of the party, or when in the usual course of events it 
must happen in the manner stipulated. 
Aleatory promise. A promise, the performance of 
which is by its own terms subject to happening of 
uncertain and fortuitous event or upon some fact exist
ence or past occurrence of which is also uncertain and 
undetermined. Tyree v. Stone, 62 Wash.2d 694, 384 
P.2d 626, 629. 
Aleatory transaction. An event dependent on a fortui
tous or uncertain happening. See Aleatory contract. 
Aler a dieu I�ley �dyuw/. L. Fr. In old practice, to be 
dismissed from court; to go quit. Literally, "to go to 
God."

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71 
Aler sans jour /O}ley seen jur /. In old practice, a phrase 
used to indicate the final dismissal of a case from court 
without continuance. "To go without day." 
Ale silver. A rent or tribute paid annually to the lord 
mayor of London, by those who sell ale within the 
liberty of the city. 
Aleu /O}l(y)uw/. Fr. In French feudal law, an allodial 
estate, as distinguished from a feudal estate or benefice. 
Alfet /relfO}t/. A cauldron into which boiling water was 
poured, in which a criminal plunged his arm up to the 
elbow, and there held it for some time, as an ordeal. 
Alford plea. Name derived from North Carolina v. 
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), 
in which Supreme Court held that a guilty plea which 
represented a voluntary and intelligent choice among 
alternatives available to defendant, especially where he 
was represented by competent counsel, was not com
pelled within the meaning of the Fifth Amendment 
merely because the plea was entered to avoid the possi
bility of the death penalty. The Supreme Court also 
held that where strong evidence of actual guilt substan
tially negated defendant's claim of innocence and pro
vided strong factual basis for the guilty plea, and the 
state had a strong case of first-degree murder, so that 
defendant, advised by competent counsel, intelligently 
concluded that he should plead guilty to second-degree 
murder rather than be tried for first-degree murder, the 
court committed no constitutional error in accepting 
guilty plea despite defendant's claim of innocence. 
Alfred's code / relfrO}dz kowd/. See Dombec, domboc. 
Algarum maris /relgerO}m mrerO}s/. Probably a corrup
tion of Laganum maris, lagan being a right, in the 
middle ages, like jetsam and flotsam, by which goods 
thrown from a vessel in distress became the property of 
the king, or the lord on whose shores they were strand
ed. 
A.L.I. American Law Institute. 
Alia /reliyO}/eyl(i)yO}/. Lat. Other things. 
Alia enormia /reliyO} O}normiyO}/. Other wrongs. The 
name given to a general allegation of injuries caused by 
the defendant with which the plaintiff in an action of 
trespass under the common-law practice concluded his 
declaration. 
Aliamenta /eel(i)yO}mento}/. In old English law, a liberty 
of passage, open way, water-course, etc., for the tenant's 
accommodation. 
Alias /eyliyO}s/. Term used to indicate another name by 
which a person is known. Short for "alias dictus"; 
otherwise known as (a. k. a.). When used in connection 
with a description of a person, it indicates that he has 
used or been known by another name. John v. Tribune 
Co., 24 Ill.2d 437, 181 N.E.2d 105, 107. See also Fictitious 
name; Name. 
Alias dictus /eyliyO}s dikto}s/. "Otherwise called." 
(Shorter and more usual form, alias ). Known by both 
those names, and is called one or the other. People v. 
ALIEN 
Mellon, 171 Misc. 171, 11 N.Y.S.2d 786, 790. A fictitious 
name assumed by a person is colloquially termed an 
"alias". State v. Neal, 231 La. 1048, 93 So.2d 554, 556. 
See also Alias. 
Alias execution. One issued after first has been re
turned without having accomplished its purpose. Rich
ards-Conover Hardware Co. v. Sharp, 150 Kan. 506, 95 
P.2d 360, 364. A second writ of execution issued to 
enforce a judgment that was not fully satisfied by the 
sheriff acting under the first or original writ. See also 
Alias process. 
Alias process. A second or further writ, summons, 
execution or subpoena, used when the first or earlier 
process has for any reason failed to accomplish its pur
pose. 
Alias subpoena / eyliyO}s sO}piynO}/. One issued after the 
first has been returned without having accomplished its 
purpose. Richards-Conover Hardware Co. v. Sharp, 150 
Kan. 506, 95 P.2d 360, 364. 
Alias summons. A summons issued when original has 
not produced its effect because defective in form or 
manner of service, and when issued, supersedes the first 
writ. 
Alias tax warrant. One issued after the first has been 
returned without having accomplished its purpose. 
Richards-Conover Hardware Co. v. Sharp, 150 Kan. 506, 
95 P.2d 360, 364. 
Alias writ. A second or further writ. One issued in a 
case after another of the same substance has previously 
been issued; see e.g. Alias summons. Ditmar v. Beck
ham, Tex.Civ.App., 77 S.W.2d 893, 894. 
Alias writ of execution. See Alias execution. 
A libellis / ey 100beIO}s/. L. Lat. An officer who had 
charge of the libelli or petitions addressed to the sover
eign. A name sometimes given to a chancellor (cancel
larius) in the early history of that office. 
Alibi /reIO}bay/. A defense that places the defendant at 
the relevant time of crime in a different place than the 
scene involved and so removed therefrom as to render it 
impossible for him to be the guilty party. Com. v. 
Warrington, 230 Pa.Super. 332, 326 A.2d 427, 429. No
tice of intention to offer a defense of alibi is governed in 
federal courts by Fed.R.Crim.P. 12.1. 
Alien, n. / eyl(i)yO}n/. A foreign born person who has not 
qualified as a citizen of the country; but an alien is a 
person within the meaning of the Fourteenth Amend
ment due process clause of the U.S. Constitution to same 
extent as a citizen. Galvan v. Press, 347 U.S. 522, 74 
S.Ct. 737, 742, 98 L.Ed. 911. Any person not a citizen or 
national of the United States. 8 U.S.C.A. § 1101. See 
also Resident alien. 
Alien or aliene, v. To transfer or make over to another; 
to convey or transfer the property of a thing from one 
person to another; to alienate. Usually applied to the 
transfer of lands and tenements. See Alienation.

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ALIENABILITY 
Alienability. The quality or attribute of being trans
ferrable; e.g., interest in property. 
Alienability of future interests. The right of an owner 
of an interest which vests in possession or enjoyment in 
the future to transfer such interest beforehand. 
Alienable / eyl(i)y:m::lb:M . Proper to be the subject of 
alienation or transfer. 
Alienable constitutional rights. Right to a trial by 
jury, to counsel, and not to incriminate one's self, and 
related matters are "alienable constitutional rights" 
which may be waived whenever assertable. Weck v. 
District Court of Second Judicial Dist., 158 Colo. 521, 
408 P.2d 987, 990. See also Inalienable rights. 
Alienage / eyl(i)Y::ln::lj/. The condition or state of an 
alien. 
Alien amy. In international law, alien friend. An alien 
who is the subject or citizen of a foreign government at 
peace with our own. 
Alien and sedition laws. Acts of Congress of July 6 
and July 14, 1798, which made it a criminal offense to 
utter or publish any false, scandalous and malicious 
writings against the federal government with intent to 
defame it, or bring it into contempt or disrepute or to 
excite hatred of people or stir up sedition against it. 
These short-lived acts tightened residency requirements 
for citizenships, granted presidential powers to deport 
and jail aliens, and provided penalties for seditious writ
ings or speech critical of the government. See also 
Sedition. 
Aliena negotia exacto officio geruntur / reliyiyn::l 
n::lgowshiY::l egzrektow ::lfish(iy)ow j::lr;}nt::lr/. The busi
ness of another is to be conducted with particular atten
tion. 
Alienate /eyl(i)Y::lneyt/. To convey; to transfer the title 
to property. Alien is very commonly used in the same 
sense. See Alienation. 
Alienation /eyl(i)Y::lneysh::ln/. In real property law, the 
transfer of the property and possession of lands, tene
ments, or other things, from one person to another. The 
term is particularly applied to absolute conveyances of 
real property. The voluntary and complete transfer 
from one person to another. Disposition by will. Every 
mode of passing realty by the act of the party, as 
distinguished from passing it by the operation of law. 
See also Restraint on alienation. 
Alienation clause. A provision in a document giving a 
person the right to transfer or forbidding him from 
transferring the property which is the subject of the 
document. Provision in fire insurance policy voiding 
such policy upon transfer of ownership by insured. 
Alienation in mortmain. See Amortization; Mortmain. 
Alienation of affections. Action of "alienation of affec
tions" is a tort based upon willful and malicious inter
ference with marriage relation by third party, without 
justification or excuse. Donnell v. Donnell, 220 Tenn. 
169, 415 S.W.2d 127, 132. The elements constituting the 
72 
cause of action are wrongful conduct of defendant, plain
tiffs loss of affection or consortium of spouse and causal 
connection between such conduct and such loss. Kun
dert v. Johnson, 268 Wis. 484, 68 N.W.2d 42. Certain 
states have abolished the right to bring an alienation of 
affections action. See Consortium; Heart balm statutes. 
Alienation office. In English practice, an office for the 
recovery of fines levied upon writs of covenant and 
entries. 
Alienatio rei prrefertur juri accrescendi / eyliY::lneyshi
yow riyay priyf;}rt::lr juray rekr::lsenday / . Alienation is 
favored by the law rather than accumulation. 
Alien corporation. A corporation organized under the 
laws of a foreign country irrespective of where it oper
ates. 
Alienee / eyl(i)Y::lniy /. One to whom an alienation, con
veyance, or transfer of property is made. See Alienor. 
Alien enemy. In international law, an alien who is the 
subject or citizen of some hostile nation or power. A 
person who, by reason of owing a permanent or tempo
rary allegiance to a hostile power, becomes, in time of 
war, impressed with the character of an enemy. Sub
jects of a foreign nation at war with United States. 
Caparell v. Goodbody, 132 N.J.Eq. 559, 29 A.2d 563, 569. 
Alien friend. Subjects of a foreign state at peace with 
the United States. Caparell v. Goodbody, 132 N.J.Eq. 
559, 29 A.2d 563, 569, 570. See also Ally. 
Alienigena / eyliY::lmiyj::ln::l/. One of foreign birth; an 
alien. 
Alieni generis / eyliyiynay jen::lr::ls/. Lat. Of another 
kind. 
Alieni juris /eyliyiynay jur::ls/. Lat. Under the control, 
or subject to the authority, of another person; e.g., an 
infant who is under the authority of his father or 
guardian. The term is contrasted with Sui Juris (q.v.). 
Alien immigrant. One who has come into the country 
from a foreign country and has not yet been naturalized. 
See Alien. 
Alienism / eyl(i)Y::lniz::lm/. The state, condition, or char
acter of an alien. 
Alienist / eyl(i)Y::lnist/. A seldom used term meaning one 
who has specialized in the study of mental diseases. 
Persons qualified by experience, knowledge, and previ
ous opportunities to express opinion as to defendant's 
mental condition at a particular time. People v. Nor
ton, 138 Cal.App. 70, 31 P.2d 809, 810. 
Alien nee. An alien born, i.e., a person who has been 
born an alien. 
Alienor /eyl(i)Y::ln::lr/. He who makes a grant, transfer 
of title, conveyance, or alienation. Correlative of alien
ee. 
Alien Registration Act. Act of Congress (1940) which 
requires annual registration of all aliens over the age of 
13. 8 U.S.C.A. §§ 1201(b), 1301, 1302.

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73 
Alienus 1 reliyiyn�s/. Lat. Another's; belonging to an
other; the property of another. Alienus homo, anoth
er's man, or slave. Aliena res, another's property. 
Alignment. The act of laying out or adjusting a line. 
The state of being so laid out or adjusted. The ground 
plan of a railway or other road or work as distinguished 
from its profile or gradients. An adjustment to a line. 
Alike. Similar to another. The term is not synonymous 
with "identical," which means "exactly the same." 
Alimenta lrebment�/. Lat. In the civil law, aliments; 
things necessary to sustain life; means of support, in
cluding food (cibaria), clothing (vestitus) and habitation 
(habitatio ). 
Alimony hH�m�niy I. Comes from Latin "alimonia" 
meaning sustenance, and means, therefore, the sus
tenance or support of the wife by her divorced husband 
and stems from the common-law right of the wife to 
support by her husband. Allowances which husband or 
wife by court order pays other spouse for maintenance 
while they are separated, or after they are divorced 
(permanent alimony), or temporarily, pending a suit for 
divorce (pendente lite). Generally, it is restricted to 
money unless otherwise authorized by statute. But it 
may be an allowance out of the spouse's estate. La
Chance v. LaChance, Md.App., 346 A.2d 676, 679, 680. 
Generally, alimony is separable from a binding property 
settlement agreement. Beard v. Worrell, 212 S.E.2d 
598, 158 W.Va. 248. State statutes which provide for 
payment of alimony only to the wife have been held to 
be unconstitutional. Orr v. Orr, 99 S.Ct. 1102. See also 
Gross alimony; Lump-sum alimony; Palimony; Periodic 
alimony; Permanent alimony; Rehabil itation (Alimony); 
Trust (Alimony trust). 
Alimony in gross, or in a lump sum, is in the nature of a 
final property settlement, and hence in some jurisdic
tions is not included in the term "alimony," which in its 
strict or technical sense contemplates money payments 
at regular intervals. Refers to those alimony arrange
ments where entire award is a vested and determined 
amount and not subject to change. Imbrie v. Imbrie, 94 
Ill.App.2d 60, 236 N.E.2d 381, 383. 
Alimony pendente lite (temporary alimony). An allow
ance made pending a suit for divorce or separate main
tenance including a reasonable allowance for prepara
tion of the suit as well as for support. Davis v. Davis, 15 
Wash.2d 297, 130 P.2d 355, 359. See also Allowance 
pendente lite. 
Permanent alimony. A provision for the support and 
maintenance of a wife during her lifetime. 
Tax treatment. Alimony and separate maintenance 
payments are includible in the gross income of the 
recipient and are deductible by the payor. The pay
ments must be periodic and made in discharge of a legal 
obligation arising from a marital or family relationship. 
Child support and voluntary payments are not treated 
as alimony. I.R.C. §§ 62(10), 71, 215. 
Alimony trust. See Trust. 
ALIUNDE RULE 
A l'impossible nul n'est tenu la lremposiybb nul ney 
tenyUw/. No one is bound to do the impossible. 
Alio intuitu hHiyow int(y)uw�tuw I. Lat. In a different 
view; under a different aspect. With another view or 
object; with respect to another case or condition. 
Aliquid conceditur ne injuria remaneat impunita, 
quod alias non concederetur 1 rel�kw�d k�nsiyd�t�r 
niy injuriy� r�mreniy�t impyuwn�t�, kwod reliy�s non 
k:msiyd�riyt�r/. Something is (will be) conceded, to 
prevent a wrong remaining unredressed, which other
wise would not be conceded. 
Aliquid possessionis et nihil juris 1 rel�kw�d p�
zeshiy6wn�s et nay�l jur�s/. Somewhat of possession, 
and nothing of right (but no right). 
Aliquis non debet esse judex in propria causa, quia 
non potest esse judex et pars 1 rel�kw�s non deb�t esiy 
juwdeks in pr6wpriy� k6z�, kwaya non powt�st esiy 
juwdeks et parz/. A person ought not to be judge in his 
own cause, because he cannot act as judge and party. 
Aliquot lrel�kwotl. Strictly speaking, means contained 
in something else an exact number of times. But as 
applied to resulting trusts, "aliquot" is treated as mean
ing fractional, and means any definite interest. 
Aliquot part rule. A rule which requires that a person 
intend to acquire a fractional part of the ownership of 
property before the court can declare a resulting trust in 
his favor. 
Aliter 1 rel�t�r I. Otherwise; as otherwise held or decid
ed. 
Aliud est celare, allud tacere lreliy�d est s�leriy, reliy�d 
t�seriy I. To conceal is one thing; to be silent is anoth
er. 
Aliud est possidere, aliud esse in possessione 1 reliy�d 
est pos�diriy, reliy�d esiy in p�zeshiy6wniy I. It is one 
thing to possess; it is another to be in possession. 
Aliud est vendere, aliud vendenti consentire 1 reliy�d 
est vend�riy, reliy�d vendentay kons�ntayriy/. To sell is 
one thing; to consent to a sale (seller) is another thing. 
Aliud examen 1 reliy�d �gzeym�n/. A different or for
eign mode of trial. 
Aliunde 1 eyliy;}ndiy I. Lat. From another source; from 
elsewhere; from outside. 
Evidence aliunde. Evidence from outside, from another 
source. In certain cases a written instrument may be 
explained by evidence aliunde, that is, by evidence 
drawn from sources exterior to the instrument itself, 
e.g., the testimony of a witness to conversations, admis
sions, or preliminary negotiations. Evidence aliunde 
(i.e., from outside the will) may be received to explain an 
ambiguity in a will. See Parol evidence. 
Aliunde rule 1 eyliy;}ndiy ruwll. A verdict may not be 
impeached by evidence of juror unless foundation for 
introduction thereof is first made by competent evidence 
aliunde, or from some other source. State v. Adams, 
141 Ohio St. 423, 48 N.E.2d 861, 863.

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ALIUS 
Alius hHiy�s/. Lat. Other. The neuter form is aliud, 
something else; another thing. 
Alive. As respects birth, it means that child has an 
independent life of its own for some period, even mo
mentarily, after birth; evidenced by respiration or other 
indications of life, such as beating of heart and pulsation 
of arteries (Hydrostatic test); or heart tones in response 
to artificial respiration, or pulsation of umbilical cord 
after being severed. See also Born alive; Child; Life; 
Live; Viable child. 
In respect of estate matters, a child en ventre sa mere 
is "born" and "alive" for all purposes for his benefit. In 
re Holthausen's Will, 175 Misc. 1022, 26 N.Y.S.2d 140, 
143. 
ALf. See Administrative Law Judge. 
All. Means the whole of-used with a singular noun or 
pronoun, and referring to amount, quantity, extent, du
ration, quality, or degree. The whole number or sum 
of-used collectively, with a plural noun or pronoun 
expressing an aggregate. Every member of individual 
component of; each one of-u sed with a plural noun. In 
this sense, all is used generically and distributively. 
"All" refers rather to the aggregate under which the 
individuals are subsumed than to the individuals them
selves. State v. Hallenberg-Wagner Motor Co., 341 Mo. 
771, 108 S.W.2d 398, 401. See Both. 
All and singular. All without exception. A comprehen
sive term often employed in conveyances, wills, and the 
like, which includes the aggregate or whole and also 
each of the separate items or components. 
All cases at law. Within constitutional guaranty of jury 
trial, refers to common law actions as distinguished 
from causes in equity and certain other proceedings. 
Breimhorst v. Beckman, 239 Minn. 409, 35 N.W.2d 719, 
734. 
Allegans contraria non est audiendus / rel�grenz 
k�ntreriy� non est odiyend�s/. On alleging contrary or 
contradictory things (whose statements contradict each 
other) is not to be heard. Applied to the statements of a 
witness. 
Allegans suam turpitudinem non est audiendus 
/rebgrenz s(y)uw�m t�rp�tyUwd�n�m non est odiyend�s/. 
One who alleges his own infamy is not to be heard. 
Allegari non debuit quod probatum non relevat 
/rel�geray non deb(y)uw�t kwod pr�beyt�m non rel�vretl. 
That ought not to be alleged which, if proved, is not 
relevant. 
Allegata /rel�geyt�/. In Roman law, a word which the 
emperors formerly signed at the bottom of their re
scripts and constitutions; under other instruments they 
usually wrote signata or testata. 
Allegata et probata /rel�geyt� et prowbeyt�/. Lat. 
Things alleged and proved. The allegations made by a 
party to a suit, and the proof adduced in their support. 
Allegatio contra factum non est admittenda 
/rebgeysh(iy)ow kontr� frekt�m non est redm�tenda/. An 
74 
allegation contrary to the deed (or fact) is not admissi
ble. 
Allegation. The assertion, claim, declaration, or state
ment of a party to an action, made in a pleading, setting 
out what he expects to prove. See e.g. Fed.R. Civil P. 8. 
See also Charge; Claim; Complaint. 
A material allegation in a pleading is one essential to 
the claim or defense. 
In ecclesiastical law, the statement of the facts intended 
to be relied on in support of the contested suit. 
Allegation of fact. Generally, narration of transaction 
by stating details according to their legal effect, and 
statement of right or liability flowing from certain facts 
is conclusion of law. 
Allegation of faculties. A statement made by the wife 
of the property of her husband, in order to obtain 
alimony. See Faculties. 
Allege / �lej/ . To state, recite, claim, assert, or charge; 
to make an allegation. See Allegation. 
Alleged. Stated; recited; claimed; asserted; charged. 
Allegiance / �liyj�ns/. Obligation of fidelity and obedi
ence to government in consideration for protection that 
government gives. U. S. v. Kuhn, D.C.N.Y., 49 F.Supp. 
407, 414. See also Oath of allegiance or loyalty. 
Acquired allegiance, is that binding a naturalized citi
zen. 
Local or actual allegiance, is that measure of obedience 
due from a subject of one government to another govern
ment, within whose territory he is temporarily resident. 
From this are excepted foreign sovereigns and their 
representatives, naval and armed forces when permitted 
to remain in or pass through the country or its waters. 
Natural allegiance. In English law, that kind of alle
giance which is due from all men born within the king's 
dominions, immediately upon their birth, which is in
trinsic and perpetual, and cannot be divested by any act 
of their own. In American law, the allegiance due from 
citizens of the United States to their native country, and 
also from naturalized citizens, and which cannot be 
renounced without the permission of government, to be 
declared by law. 
Allegiare / �liyjiyeriy /. To defend and clear one's self; 
to wage one's own law. An archaic word which simply 
means to define or justify by due course of law. 
Alleging diminution /�lejiIJ dim�n(y)uwsh�n/. The alle
gation in an appellate court, of some error in a subor
dinate part of the nisi prius record. See Diminution. 
Allen charge. An instruction advising deadlocked ju
rors to have deference for each other's views, that they 
should listen, with a disposition to be convinced, to each 
other's argument; deriving its name from the case of 
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 
L.Ed. 528, wherein the instruction was approved. Green 
v. U. S., C.A.Fla., 309 F.2d 852. Variously called dyna
mite charge, shotgun instruction, third degree instruc
tion. The Allen charge is prohibited in certain states;

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75 
e.g. California, People v. Gainer, 19 Cal.3d 835, 566 P.2d 
997, 139 Cal.Rptr. 861; and while permissible in others, 
its use must be carefully examined by trial judge to 
determine its total effect on jury reaching verdict. 
Brown v. State, DeL, 369 A.2d 682, 684. 
Allergy. A susceptibility to disease. Vogt v. Ford Motor 
Co., Mo.App., 138 S.W.2d 684, 688. The condition of 
being hypersensitive to something. 
All events test. For accrual method taxpayers, income 
is earned when: (1) all the events have occurred which 
fix the right to receive the income and (2) the amount 
can be determined with reasonable accuracy. Accrual 
of income cannot be postponed simply because a portion 
of the income may have to be returned in a subsequent 
period. 
Under this test an accrual basis taxpayer may deduct 
taxes or any other expense items if all the events fixing 
the fact of, and amount of, taxpayer's liability have 
transpired though not paid, and this requires that each 
taxable year must be treated as a separate unit, and all 
items of gross income and deductions must be reflected 
in terms of their posture at close of such year. Dravo 
Corp. v. U.S., 348 F.2d 542, 545, 172 Ct.Cl. 200. 
Alleviare I �liyviyeriy I. L. Lat. In old records, to levy 
or pay an accustomed fine or composition; to redeem by 
such payment. 
All faults. A sale of goods with "all faults" covers, in 
the. absence of fraud on the part of the vendor, all such 
faults and defects as are not inconsistent with the identi
ty of the goods as the goods described. U.C.C. § 2-316. 
See As is. 
All fours. Two cases or decisions which are alike in all 
material respects, and precisely similar in all the cir
cumstances affecting their determination, are said to be 
or to run on "all fours." 
Alliance. The relation or union between persons or 
families contracted by intermarriage; affinity. State of 
being allied. 
In international law, a union, association or confedera
tion of two or more states or nations, formed by league 
or treaty, for the joint prosecution of a war (offensive 
alliance), or for their mutual assistance and protection 
in repelling hostile attacks (defensive alliance). The 
league or treaty by which the association is formed. 
The act of confederating, by league or treaty, for the 
purposes mentioned. 
The term is also used in a wider sense, embracing 
unions for objects of common interest to the contracting 
parties, as the "Holy Alliance" entered into in 1815 by 
Prussia, Austria and Russia for the purpose of counter
acting the revolutionary movement in the interest of 
political liberalism. 
Allision. The running of one vessel into or against 
another, as distinguished from a collision, i. e., the 
running of two vessels against each other. But this 
distinction is not very carefully observed. 
ALLOCATUR 
Allocable lrel�k�b�l/. Synonymous with "distributable". 
In analyzing accounts, the breaking down of a lump sum 
charged or credited to one account into several parts to 
be charged or credited to other accounts. 
Allocable share of income. Certain entities receive 
conduit treatment under the Federal income tax law. 
This means the earned income or loss is not taxed to the 
entity, but such amounts are allocated to the owners or 
beneficiaries thereof, regardless of the magnitude or 
timing of corresponding distributions. The portion of 
the entity's income that is taxed to the owner or benefi
ciary is the allocable share of the entity's income or loss 
for the period. Such allocations are determined by (1) 
the partnership agreement relative to the partners, (2) a 
weighted-average stock ownership computation relative 
to shareholders of an S corporation, and (3) the control
ling will or trust instrument relative to the beneficiaries 
of an estate or trust. 
Allocation. Assignment or allotment. Jacobson v. 
Bowles, D.C.Tex., 53 F.Supp. 532, 534. 
In taxation, the assignment· of income for various tax 
purposes. A multistate corporation's nonbusiness in
come usually is allocated to the state where the nonbusi
ness assets are located; it is not apportioned with the 
rest of the entity's income. The income and expense 
items of an estate or trust are allocated between income 
and corpus components. Specific items of income, ex
pense, gain, loss, and credit can be allocated to specific 
partners or shareholders in an S corporation, if a sub
stantial economic nontax purpose for the allocation is 
established. 
. 
Allocatione facienda I rel�keyshiy6wniy freshiyenda/. 
In old English practice, a writ for allowing to an ac
countant such sums of money as he hath lawfully ex
pended in his office; directed to the lord treasurer and 
barons of the exchequer upon application made. 
Allocation of dividends. In trust accounting, cash divi
dends are credited or allocated to income; whereas, 
generally, stock dividends are credited to principal and 
the basis of the stock on which the dividend has been 
paid is changed in the portfolio. If the cash dividend is 
a liquidating dividend, it is commonly allocated to prin
cipal. 
Allocation of income. When two or more businesses 
are controlled by the same interests, the Commissioner 
of Internal Revenue may allocate or distribute income to 
prevent tax evasion. I.R.C. § 482. In trust accounting, 
the process by which income is distributed as between 
principal and income. 
Allocation of principal and income. See Allocation of 
dividends; Allocation of income. 
Allocatur I rel�keyt�r I. Lat. It is allowed. A word 
formerly used to denote that a writ or order was al
lowed. A word denoting the allowance by a master or 
prothonotary of a bill referred for his consideration, 
whether touching costs, damages, or matter of account. 
A special allocatur is the special allowance of a writ

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ALLOCATUR 
(particularly a writ of error) which is required in some 
particular cases. 
Allocatur exigent hH�keyt�r egz�j�nt/. A species of 
writ anciently issued in outlawry proceedings, on the 
return of the original writ of exigent. See Exigent. 
Allocution /rel�kyUwsh�n/. Formality of court's inquiry 
of defendant as to whether he has any legal cause to 
show why judgment should not be pronounced against 
him on verdict of conviction; or, whether he would like 
to make statement on his behalf and present any infor
mation in mitigation of sentence (see e.g. Fed.R.Crim.P. 
32(a» . State v. Pruitt, Mo., 169 S.W.2d 399, 400. 
Allocutus /rebkyUwt�s/. See Allocution. 
Allodarii /rel�deriyay/. Owners of allodial lands. Own
ers of estates as large as a subject may have. 
Allodial / �16wdiy;}1/. Free; not holden of any lord or 
superior; owned without obligation of vassalage or feal
ty; the opposite of feudaL See also Ownership. 
Allodium / ;}16wdiy�m/. Land held absolutely in one's 
own right, and not of any lord or superior; land not 
subject to feudal duties or burdens. An estate held by 
absolute ownership, without recognizing any superior to 
whom any duty is due on account thereof. 
Allograph heI�grref/. A writing or signature made for a 
person by another; opposed to autograph. 
Allonge /�16nj/. A piece of paper annexed to a nego
tiable instrument or promissory note, on which to write 
endorsements for which there is no room on the instru
ment itself. Such must be so firmly affixed thereto as to 
become a part thereof. U.C.C. § 3-202(2). 
Allot / ;}16t!. To apportion, distribute; to divide property 
previously held in common among those entitled, assign
ing to each his ratable portion, to be held in severalty. 
To set apart specific property, a share of a fund, etc., to 
a distinct party. In the law of corporations, to allot 
shares, debentures, etc., is to appropriate them to the 
applicants or persons who have applied for them. 
Allotted land. See Allotment. 
Allotment. A share or portion; that which is allotted; 
apportionment; division; the distribution of shares in a 
public undertaking or corporation. Partition; the dis
tribution of land under an inclosure act. 
The term ordinarily and commonly used to describe 
land held by Indians after allotment, and before the 
issuance of the patent in fee that deprives the land of its 
character as Indian country. A term of art in Indian 
law, describing either a parcel of land owned by the 
United States in trust for an Indian, i.e., a "trust allot
ment," or owned by an Indian subject to a restriction on 
alienation in favor of the United States or its officials, 
i.e., a "restricted fee allotment.'" Bear v. U.S., D.C.Neb., 
611 F.Supp. 589, 599. In Indian law, means a selection 
of specific land awarded to an individual allottee from a 
common holding. Affiliated Ute Citizens of Utah v. 
U.S., U.S. Utah, 406 U.S. 128, 92 S.Ct. 1456, 1466, 31 
L.Ed.2d 741. See Allottee. 
76 
Allotment certificate. A document issued to an appli
cant for shares in a company or public loan announcing 
the number of shares allotted or assigned and the 
amounts and due dates of the calls or different pay
ments to be made on the same. 
Allotment note. In English law, a writing by a seaman, 
made on an approved form, whereby he makes an as
signment of part of his wages in favor of his wife, father 
or mother, grandfather or grandmother, brother or sis
ter. Governed by Merchant Shipping Act, 1970, § 13(1). 
Allotment system. Designates the practice in England 
of dividing land in small portions for cultivation by 
agricultural laborers, gardeners and others. See also 
Allotment. 
Allotment warden. By the English general inclosure 
act, 1845, § 108, when an allotment for the laboring poor 
of a district had been made on an inclosure under the 
act, the land so allotted was to be under the manage
ment of the incumbent and church warden of the parish, 
and two other persons elected by the parish, and they 
were to be styled "the allotment wardens" of the parish. 
Allottee. One to whom an allotment is made; who 
receives a ratable share under an allotment. A person 
to whom land under an inclosure act or shares in a 
corporation or public undertaking are allotted. 
Allow. The word has no rigid or precise meaning, its 
import varying according to circumstances or context in 
connection with which it is used. It may mean to 
bestow or assign to any one as his right or due. To 
approve of, accept as true, admit, concede, adopt, or fix. 
To grant something as a deduction or an addition; to 
abate or deduct; as, to allow a sum for leakage. Pitts
burgh Brewing Co. v. Commissioner of Internal Reve
nue, C.C.A.3, 107 F.2d 155, 156. To sanction, either 
directly or indirectly, as opposed to merely suffering a 
thing to be done; to acquiesce in; to suffer; to tolerate. 
See also Acquiescence; Consent. 
Allowance. A deduction, an average payment, a portion 
assigned or allowed; the act of allowing. For Family, 
see that title. 
Allowance pendente lite / �law�ns pendentiy laytiy /. 
The court ordered provision for a spouse and children 
during the pendency of a divorce or separate support 
proceeding. See also Alimony. 
Allowed claim. Against an estate it is a debt or charge 
which is valid in law and entitled to enforcement. Com
missioner of Internal Revenue v. Lyne, C.C.A. l, 90 F.2d 
745, 747. 
Alloynour /;}16yn;}r/. L. Fr. One who conceals, steals, 
or carries off a thing privately. See Eloigne. 
All the estate. The name given in England to the short 
clause in a conveyance or other assurance which pur
ports to convey "all the estate, right, title, interest, 
claim, and demand" of the grantor, lessor, etc., in the 
property dealt with. 
Alluvio maris /�l(y)uwviyow mrer;}s/. Lat. In the civil 
and old English law, the washing up of the sea; the soil

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thus formed; formation of soil or land from the sea; 
maritime increase. 
Alluvion I:;)l(y)uwviy:m/. That increase of the earth on 
a shore or bank of a stream or the sea, by the force of 
the water washing up sand or soil so as to form firm 
ground, as by a current or by waves, which is so gradual 
that no one can judge how much is added at each 
moment of time. Garrett v. State, 118 N.J. Super. 594, 
289 A.2d 542, 545. "Accretion" denotes the act. How
ever, the terms are frequently used synonymously. 
Avulsion is sudden and perceptible. See Accretion; Avul
sion. Compare Reliction. 
All Writs Act. See Writ. 
Ally. A nation which has entered into an alliance with 
another nation. A citizen or subject of one of two or 
more allied nations. 
Almaria lrelmeriy:;)/. The archives, or, as they are some
times styled, muniments of a church or library. 
Almesfeoh hi(l)mzfiy/. In Saxon law, alms-fee; alms
money. Otherwise called "Peter-pence." 
Almoin lrelm6yn/. Alms; a tenure of lands by divine 
service. See Frankalmoign. 
Almoner I �Hm:;)n:;)r I. One charged with the distribution 
of alms. The office was first instituted in religious 
houses and although formerly one of importance is now 
in England almost a sinecure. 
Alms. Charitable donations. Any species of relief be
stowed upon the poor. That which is given by public 
authority for the relief of the poor. 
Alms fee. Peter-pence (or Peter's pence), which see. 
Almshouse. A house for the publicly or privately sup
ported paupers of a city or county; may also be termed a 
"mission". In England an almshouse is not synonymous 
with a workhouse or poorhouse, being supported by 
private endowment. 
Alnager I reln:;)j:;)r I or uinager I �ln:;)j:;)r I. A sworn officer 
of the king whose duty it was to look to the assise of 
woolen cloth made throughout the land, and to the 
putting on the seals for that purpose ordained, for which 
he collected a duty called "alnage." 
Alod, alode, alodes, alodis I rel:;)dl . L. Lat. In feudal 
law, old forms of alodium or allodium (q.v.). A term 
used in opposition to feodum or fief, which means prop
erty, the use of which was bestowed upon another by the 
proprietor, on condition that the grantee should perform 
certain services for the grantor, and upon the failure of 
which the property should revert to the original posses
sor. 
Alodiarii. See Allodarii. 
Alone. Apart from others; singly; sole. 
Along. Lengthwise of, implying motion or at or near, 
distinguished from across. By, on, up to, or over, accord
ing to the subject-matter and context. The term does 
not necessarily mean touching at all points; nor does it 
necessarily imply contact. 
ALTER EGO 
A lour foy I:;) l�r fwaJ. In their allegiance. 
Also. Besides; as well; in addition; likewise; in like 
manner; similarly; too; withal. Some other thing; in
cluding; further; furthermore; in the same manner; 
moreover; nearly the same as the word "and" or "like
wise." 
A.L.T.A. American Land Title Association. 
Alta proditio lrelt:;) prowdishiyow/. L. Lat. In old Eng
lish law, high treason. 4 Bl.Comm. 75. See Treason. 
Altarage 16lt(:;))r:;)j/. In ecclesiastical law, offerings 
made on the altar; all profits which accrue to the priest 
by means of the altar. 
Alta via lrelt:;) vfiy:;) I. L. Lat. In old English law, a 
highway; the highway. Alta via regia; the king's high
way; "the king's high street." 
Alter. To make a change in; to modify; to vary in some 
degree; to change some of the elements or ingredients 
or details without substituting an entirely new thing or 
destroying the identity of the thing affected. To change 
partially. To change in one or more respects, but with
out destruction of existence or identity of the thing 
changed; to increase or diminish. See Alteration; 
Amend; Change. 
Alteration. Variation; changing; making different. A 
change of a thing from one form or state to another; 
making a thing different from what it was without 
destroying its identity. See Alter. 
An act done upon an instrument by which its meaning 
or language is changed. Language different in legal 
effect, or change in rights, interests, or obligations of 
parties. It introduces some change into instrument's 
terms, meaning, language, or details. The term is not 
properly applied to any change which involves the sub
stitution of a practically new document. An alteration 
is said to be material when it affects, or may possibly 
affect, the rights of the persons interested in the doc
ument. U.C.C. § 3-407. See also Fraudulent alteration; 
Material alteration; Mutilation; Spoliation. 
Alteration of contract. A change in the provisions of a 
contract. If alteration is material, it extinguishes the 
right of the party who alters it and discharges the other 
party. The test of whether it is material is whether the 
rights of the obligee would be varied as to the party 
making the alteration or to a third party. Restatement 
of Contracts, § 434. 
Alteration of trust. An act by settlor of trust changing 
the terms of the trust, generally pursuant to a power to 
alter and amend within the original trust instrument. 
Altercation. Warm contentions in words. Dispute or 
controversy carried on with heat or anger. Ivory v. 
State, 128 Tex.Cr.R. 408, 81 S.W.2d 696, 698. 
Alter ego 161t:;)r iygow/. Second self. Under doctrine of 
"alter ego", court merely disregards corporate entity 
and holds individual responsible for acts knowingly and 
intentionally done in the name of corporation. Ivy v. 
Plyler, 246 Cal.App.2d 678, 54 Cal.Rptr. 894, 897. To 
establish the "alter ego" doctrine, it must be shown that

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ALTER EGO 
the stockholders disregarded the entity of the corpora
tion, made corporation a mere conduit for the transac
tion of their own private business, and that the separate 
individualities of the corporation and its stockholders in 
fact ceased to exist. Sefton v. San Diego Trust & Sav
ings Bank, Cal.App., 106 P.2d 974, 984. The doctrine of 
"alter ego" does not create assets for or in corporation, 
but it simply fastens liability on the individual who uses 
the corporation merely as an instrumentality in con
ducting his own personal business, and that liability 
springs from fraud perpetrated not on the corporation, 
but on third persons dealing with corporation. Garvin 
v. Matthews, 193 Wash. 152, 74 P.2d 990, 992. See also 
Instrumentality rule. 
Alterius circumventio alii non prrebet actionem 
/reltiriy�s s:}rk�mvensh(iy)ow cHiyay non priyb�t 
rekshiyown�m/ . The deceiving of one person does not 
afford an action to another. 
Alternat / olt�rn�t/. A usage among diplomatists by 
which the rank and places of different powers, who have 
the same right and pretensions to precedence, are 
changed from time to time, either in a certain regular 
order or one determined by lot. In drawing up treaties 
and conventions, for example, it is the usage of certain 
powers to alternate, both in the preamble and the signa
tures, so that each power occupies, in the copy intended 
to be delivered to it, the first place. 
Alternate legacy. See Legacy. 
Alternate valuation date. Property passing from a 
person by death may be valued for estate tax purposes 
as of the date of death or the alternate valuation date. 
The alternate valuation date is six months from the date 
of death or the date the property is disposed of by the 
estate, whichever comes first. The use of the alternate 
valuation date requires an affirmative election on the 
part of the executor or administrator of the estate. 
I.R.C. §§ 1014(a), 2032. 
Alternatim /olt�rneyt�m/. Lat. Interchangeably. 
Alternativa petitio non est audienda / olt:}rn�tayv� 
p�tish(i)yow non est odiyend�/. An alternative petition 
or demand is not to be heard. 
Alternative. One or the other of two things; giving an 
option or choice; allowing a choice between two or more 
things or acts to be done. 
Alternative contract. A contract whose terms allow of 
performance by the doing of either one of several acts at 
the election of the party from whom performance is due. 
Alternative dispute resolution. Term refers to proce
dures for settling disputes by means other than litiga
tion; e.g., by arbitration, mediation, mini-trials. Such 
procedures, which are usually less costly and more expe
ditious, are increasingly being used in commercial and 
labor disputes, divorce actions, in resolving motor ve
hicle and medical malpractice tort claims, and in other 
disputes that would likely otherwise involve court litiga
tion. See also Arbitration; Mediation; Min i-trial; Trial 
(Summary jury trial). 
78 
Alternative judgment. See Judgment. 
Alternative minimum tax (AMT). The tax imposed on 
individuals, estates, trusts, and, for tax years beginning 
after 1986, corporations. The tax is designed to ensure 
that all taxpayers pay at least a minimum amount of 
taxes. The AMT rate is a fixed percentage of alterna
tive minimum taxable income. I.R.C. §§ 55-59. 
Alternative obligation. An obligation allowing the ob
ligor to choose which of two things he will do, the 
performance of either of which will satisfy the instru
ment. A promise to deliver a certain thing or to pay a 
specified sum of money is an example of this kind of 
obligation. 
Alternative pleading. A form of pleading which was 
formerly prohibited but now recognized under Federal 
and state Rules of Civ.Proc. by which the pleader sets 
forth two or more statements by way of claim or defense 
which are not necessarily consistent with each other. 
When two or more statements are made in the alterna
tive and one of them if made independently would be 
sufficient, the pleading is not made insufficient by the 
insufficiency of one or more of the alternative state
ments. See Fed.R.Civil P. 8(e)(2). 
Alternative relief. Under Fed.Rules Civ.Proc. 8(a) the 
party seeking a judgment may demand it in the alterna
tive, or in various forms, e.g. demand for a money 
judgment and for equitable relief. 
Alternative remainders. Remainders in which disposi
tion of property is made in alternative, one to take effect 
only in case the other does not, and in substitution of it. 
Alternative remedies. See Alternative relief. 
Alternative writ. A common law writ commanding the 
person against whom it is issued to do a specified thing, 
or show cause to the court why he should not be com
pelled to do it. Under the common-law practice, the 
first mandamus is an alternative writ; but in modern 
practice this writ is often dispensed with and its place is 
taken by an order to show cause. See Mandamus. 
Alterum non lredere /olt�r�m non liyd�riy/. Not to 
injure another. This maxim, and two others, honeste 
vivere, and suum cuique tribuere, (q.v.) are considered by 
Justinian as fundamental principles upon which all the 
rules of law are based. 
Alteruter /olt�ryuwt�r/. Lat. One of two; either. 
Altius non tollendi / relsh(i)y�s non t�lenday / . In the 
civil law, a servitude due by the owner of a house, by 
which he is restrained from building beyond a certain 
height. 
Altius tollendi /relsh(i)y�s t�lenday/. In the civil law, a 
servitude which consists in the right, to him who is 
entitled to it, to build his house as high as he may think 
proper. In general, however, every one enjoys this 
privilege, unless he is restrained by some contrary title. 
Alto et basso /reltow �t bresow/. High and low. This 
phrase is applied to an agreement made between two

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79 
contending parties to submit all matters in dispute, alto 
et basso, to arbitration. 
Altum mare I relt::lm mreriy I. L. Lat. In old English 
law, the high sea, or seas. The deep sea. Super altum 
mare, on the high seas. 
A lui et a ses heritiers pour toujours I a lwiy ey a seyz 
eriytyey pur tuwzhur/. To him and to his heirs forever. 
Alveus lrelviY::lsl. The bed or channel through which 
the stream flows when it runs within its ordinary chan
neL Alveus derelictus, a deserted channeL 
A.M. Ante meridiem, before noon. Only the abbrevia
tion is ordinarily used. Also artium magister, master of 
arts. Also annus mirabilis, the wonderful year-1666, 
the year of the defeat of the Dutch fleet and of the great 
London fire. Also anno mundi, in the year of the world; 
that is, when the creation of the world is said to have 
taken place, 4004 B. C. 
A.M.A. American Medical Association. 
A ma intent I a ma renton I . On my action. 
Amalgamation l::Im,Hg::lmeysh::ln/. Union of different 
races, or diverse elements, societies, unions, associations, 
or corporations, so as to form a homogeneous whole or 
new body; interfusion; intermarriage; consolidation; 
merger; coalescence; as, the amalgamation of stock. 
Amalphitan code or table I ::Imrelf::ld::ln kowdl" teyb::ll/. 
A collection of sea-laws, compiled about the end of the 
eleventh century, by the people of Amalphi. It consists 
of the laws on maritime subjects, which were or had 
been in force in countries bordering on the Mediterrane
an; and was for a long time received as authority in 
those countries. It became a part of the law of the sea. 
See Code. 
A manibus ley mrenib::lsl. Lat. Royal scribe. See Am
anuensis. 
Amanuensis I ::Imrenyuwens::lsl. One who writes on be
half of another that which he dictates. 
A manu servus ley mre(y)uw s::lrv::lsl. Lat. A handser
vant; a scribe; a secretary. 
Ambactus lrembrekt::lsl. A messenger; a servant sent 
about; one whose services his master hired out. 
Ambasciator lrembreshiyeyt::lr/. A person sent about in 
the service of another; a person sent on a service. A 
word of frequent occurrence in the writers of the middle 
ages. 
Ambassador. A public officer clothed with high dip
lomatic powers, commissioned by a government to trans
act the international business of his government with a 
foreign government. 
An Ambassador of the United States is the personal 
representative of the President and reports to the Presi
dent through the Secretary of State. Ambassadors have 
full responsibility for implementing the U.S. foreign 
policy by any and all U.S. Government personnel within 
their country of assignment, except those under military 
commands. Their responsibilities include negotiating 
AMBIGUITY 
agreements between the United States and the host 
country, explaining and disseminating official U.S. poli
cy, and maintaining cordial relations with that country's 
government and people. 22 U.S.C.A. § 3942. 
A distinction was formerly made between Ambassa
dors Extraordinary, who were sent to conduct special 
business or to remain for an indeterminate period, and 
Ambassadors Ordinary, who were sent on permanent 
missions; but this distinction is no longer observed. 
See also Diplomatic agent. 
Ambidexter I remb::ldekst::lr I. Skillful with both hands; 
one who plays on both sides. Applied anciently to an 
attorney who took pay from both sides, and subsequent
ly to a juror guilty of the same offense. 
Ambigua responsio contra proferentem est accipien
da lrembigyuw::l r::lsponsh(iy)ow kontr::l prOf::lrent::lm est 
::Iksipiyend::l/. An ambiguous answer is to be taken 
against (is not to be construed in favor of) him who 
offers it. 
Ambiguis casibus semper prresumitur pro rege 
lrembigyuw::ls keyz::lb::ls semp::lr pr::lz(y)uwm::lt::lr prow 
riyjiy I. In doubtful cases, the presumption always is in 
behalf of the crown. 
Ambiguitas I remb::lgyuw::ltresl. Lat. From ambiguus, 
doubtful, uncertain, obscure. Ambiguity; uncertainty 
of meaning. 
Ambiguitas latens, a latent ambiguity; ambiguitas pa
tens, a patent ambiguity. See Ambigu ity. 
Ambiguitas contra stipulatorem est I remb::lgyuw::ltres 
kontr::l stipY::lleytor::lm est/. Doubtful words will be con
strued most strongly against the party using them. 
Ambiguitas verborum latens verificatione suppletur; 
nam quod ex facto oritur ambiguum verificatione 
facti tollitur lremb::lgyuw::ltres v::lrbor::lm leyt::lnz 
vehr::lf::lkeyshiyowniy s::lpliyt::lr, nrem kwod eks frekt(y)uw 
ohr::lt::lr rembigyuw::lm vehr::lf::lkeyshiyowniy frektay 
tobt ::lr/. A latent ambiguity in the language may be 
removed by evidence; for whatever ambiguity arises 
from an extrinsic fact may be explained by extrinsic 
evidence. Said to be "an unprofitable subtlety; inade
quate and uninstructive." 
Ambiguitas verborum patens nulla verificatione ex
cluditur lremb::lgyuw::ltres v::lrbor::lm peytenz n�l::l 
vehr::lf::lkeyshiyowniyeksluwd::lt::lr/. A patent ambiguity 
cannot be cleared up by extrinsic evidence (or is never 
hoi pen by averment). 
Ambiguity I remb::lgyuw::ltiy I. Doubtfulness; doubleness 
of meaning. Duplicity, indistinctness, or uncertainty of 
meaning of an expression used in a written instrument. 
Want of clearness or definiteness; difficult to compre
hend or distinguish; of doubtful import. For Extrinsic 
ambiguity, see that title. 
Ambiguity exists if reasonable persons can find differ
ent meanings in a statute, document, etc., Laskaris v. 
City of Wisconsin Dells, Inc., App., 389 N.W.2d 67, 70, 
131 Wis.2d 525; when good arguments can be made for 
either of two contrary positions as to a meaning of a

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AMBIGUITY 
term in a document, Atlas Ready-Mix of Minot, Inc. v. 
White Properties, Inc., N.D., 306 N.W.2d 212, 220; when 
application of pertinent rules of interpretation to an 
instrument as a whole fails to make certain which one 
of two or more meanings is conveyed by the words 
employed by the parties, Wood v. Hatcher, 199 Kan. 238, 
428 P.2d 799, 803. 
Language in contract is "ambiguous" when it is rea
sonably capable of being understood in more than one 
sense. City of Sioux Falls v. Henry Carlson Co., Inc., 
S.D., 258 N.W.2d 676, 679. Test for determining wheth
er a contract is "ambiguous" is whether reasonable 
persons would find the contract subject to more than 
one interpretation. Tastee-Freez Leasing Corp. v. Mil
wid, Ind. App., 365 N.E.2d 1388, 1390. 
Ambiguity of language is to be distinguished from 
unintelligibility and inaccuracy, for words cannot be 
said to be ambiguous unless their signification seems 
doubtful and uncertain to persons of competent skill and 
knowledge to understand them. It does not include 
uncertainty arising from the use of peculiar words, or of 
common words in a peculiar sense. It is latent where 
the language employed is clear and intelligible and 
suggests but a single meaning, but some extrinsic fact or 
extraneous evidence creates a necessity for interpreta
tion or a choice among two or more possible meanings, 
as where a description apparently plain and unambig
uous is shown to fit different pieces of property. Logue 
v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 82. A patent 
ambiguity is that which appears on the face of the 
instrument, and arises from the defective, obscure, or 
insensible language used. 
Ambiguity upon the factum. An ambiguity in relation 
to the very foundation of the instrument itself, as distin
guished from an ambiguity in regard to the construction 
of its terms. The term is applied, for instance, to a 
doubt as to whether a testator meant a particular clause 
to be a part of the will, or whether it was introduced 
with his knowledge, or whether a codicil was meant to 
republish a former will, or whether the residuary clause 
was accidentally omitted. 
Ambiguous. See Ambiguity. 
Ambiguum pactum contra venditorem interpretan
dum est / rembigyuw�m prekt�m k6ntr� vend�t6r�m 
int;)rpr�trend�m est!. An ambiguous contract is to be 
interpreted against the seller. 
Ambiguum placitum interpretari debet contra prof
erentem / rembigyuw�m plres�t�m int;)rpr�teray deb�t 
k6ntr� prOf�rent�m/. An ambiguous plea ought to be 
interpreted against the party pleading it. 
Ambit. A boundary line, as going around a place; an 
exterior or inclosing line or limit. The limits or circum
ference of a power or jurisdiction; the line circumscrib
ing any subject-matter. 
Ambitus / remb�t�s/ . The procuring of a public office by 
money or gifts; the unlawful buying and selling of a 
public office. 
80 
Amblotic / rembI6t�k/ . Having the power to cause abor
tion; anything used to produce abortion. 
Ambulance chaser. A popular name for one who soli
cits negligence cases for an attorney for a fee or in 
consideration of a percentage of the recovery. Also, a 
term descriptive of the practice of some attorneys, on 
hearing of a personal injury which may have been 
caused by the negligence or wrongful act of another, of 
at once seeking out the injured person with a view to 
securing authority to bring action on account of the 
injury. Laymen's acquainting themselves with occur
rence of accidents and approaching injured persons or 
their representatives with a view toward soliciting em
ployment for an attorney in the litigation arising from 
the accident. See also Runner. 
Ambulatoria est voluntas defuncti usque ad vitre 
supremum exitum / remby�l�t6riy� est vol:intres 
d�f:iIJktay :iskwiy red vaytiy s(y)�priym�m egzit�m/. The 
will of a deceased person was ambulatory until the 
latest moment of life. 
Ambulatory. Lat. ambulare, to walk about. Movable; 
revocable; subject to change; capable of alteration. 
Ambulatoria voluntas (a changeable will) denotes the 
power which a testator possesses of altering his will 
during his life-time. 
Courts. The court of king's bench in England was 
formerly called an ambulatory court, because it followed 
the king's person, and was held sometimes in one place 
and sometimes in another. So, in France, the supreme 
court or parliament was originally ambulatory. 3 Bl. 
Comm. 38, 39, 4l. 
Ambulatory disposition. A judgment, decree, or sen
tence which is subject to change, amendment or revoca
tion. 
Ambush. To lie in wait, to surprise, to place in ambush. 
A me / ey miy /. Lat. ego, I. A term in feudal grants 
denoting direct tenure of the superior lord. Unjustly 
detaining from me. He is said to withhold a me (from 
me) who has obtained possession of my property unjust
ly. To pay a me, is to pay from my money. 
Ameliorating waste / �miyl(i)y�reytiIJ weyst!. An act of 
lessee, though technically constituting waste, yet in fact 
resulting in improving instead of doing injury to land. 
Generally, equity will not enjoin such waste. 
Ameliorations / �miyl(i)y�reysh�nz/. Betterments; im
provements. 
Amenable / �miyn�b�l/omen 0/. Subject to answer to the 
law; accountable; responsible; liable to punishment. 
Also means tractable, that may be easily led or gov
erned; formerly applied to a wife who was governable 
by her husband. 
Amend. To improve. To change for the better by re
moving defects or faults. To change, correct, revise. 
Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 660. 
See Amendment.

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81 
Amende honorable /;)mond on;)rab;)l/. An apology. In 
old English law, it was a penalty imposed upon a person 
by way of disgrace or infamy, as a punishment for any 
offense, or for the purpose of making reparation for any 
injury done to another, as the walking into church in a 
white sheet, with a rope about the neck and a torch in 
the hand, and begging the pardon of God, or the king, or 
any private individual, for some delinquency. A punish
ment somewhat similar to this, which bore the same 
name, was common in France for offenses against public 
decency or morality. It was abolished by the law of the 
25th of September, 1791. In 1826 it was re-introduced 
in cases of sacrilege and was finally abolished in 1830. 
Amendment. To change or modify for the better. To 
alter by modification, deletion, or addition. 
Practice and pleading. The correction of an error com
mitted in any process, pleading, or proceeding at law, or 
in equity, and which is done either as of course, or by 
the consent of parties, or upon motion to the court in 
which the proceeding is pending. Under Fed.RCivil P., 
any change in pleadings, though not necessarily a cor
rection, which a party may accomplish once as a matter 
of course at any time before a responsive pleading has 
been served. Such amendment may be necessary to 
cause pleadings to conform to evidence. Rule 15(a), (b). 
The amendment relates back to the original pleading if 
the subject of it arose out of the transaction set forth or 
attempted to be set forth in the original pleading. Fed. 
RCivil P. 15(c). Compare Supplemental pleading. 
Amendment of judgment. A judgment may be altered 
or amended for appropriate reasons on motion if served 
within ten days after entry of judgment. Fed.RCiv.P. 
59(e). See also Rule 60 (Relief from judgment or order). 
Amendment of trust. An addition which alters the 
original terms of a trust, the power to accomplish which 
may be reserved by the settlor in the original trust 
instrument. 
Amendment on court's own motion. A change or 
addition to a pleading or other document accomplished 
by the judge without a prior motion of a party. 
Amends. A satisfaction given by a wrongdoer to the 
party injured, for a wrong committed. 
Amenity /;)menitiy/. In real property law, such circum
stances, in regard to situation, view, location, access to a 
water course, or the like, as enhance the pleasantness or 
desirability of the property for purposes of residence, or 
contribute to the pleasure and enjoyment of the occu
pants, rather than to their indispensable needs. Extras 
or intangible items often associated with property. 
They may be tangible. Often amenities in a condomin
ium include swimming pools, landscaping, and tennis 
courts. 
In the law of easements, an "amenity" consists in 
restraining the owner from doing that on his property 
which, but for the grant or covenant, he might otherwise 
lawfully have done. Sometimes called a "negative ease
ment" as distinguished from that class of easements 
which compel the owner to suffer something to be done 
Black's Law Dictionary 6th Ed.-3 
AMERICAN DIGEST SYSTEM 
on his property by another. Equitable Life Assur. Soc. 
v. Brennan, 30 Abb.N.C. 260, 24 N.Y.S. 784, 788. A 
restrictive covenant. South Buffalo Stores v. W. T. 
Grant Co., 153 Misc. 76, 274 N.Y.S. 549, 555. 
Amens / eymenz/. See Demens. 
A mensa et thoro / ey menS;) et fJorow /. Lat. From 
table and bed, but more commonly translated, from bed 
and board. A kind of divorce, which is rather a separa
tion of the parties by law, than a dissolution of the 
marriage. See Separation. 
Amentia. Insanity; idiocy. See Insanity. 
Amerce / ;)m�rs/. To impose an amercement or fine; to 
publish by a fine or penalty. 
Amercement / ;)m�rsm;)nt/. A money penalty in the 
nature of a fine imposed upon an officer for some 
misconduct or neglect of duty. Sherman v. Upton, Inc., 
S.D., 242 N.W.2d 666, 667. At common law, it was 
assessed by the peers of the delinquent, or the affeerors, 
or imposed arbitrarily at the discretion of the court or 
the lord. 
Early common law required complainant who lost his 
suit to pay his opponent "wer," monetary penalty which 
varied with the complainant's status, but after Norman 
conquest, wer gave way to "amercement," a more flexi
ble sanction paid to court, the amount of which, at least 
in theory, varied according to the wrongfulness of com
plainant's conduct. Friedman v. Dozorc, 412 Mich. 1, 
312 N.W.2d 585, 595. 
American. Of or pertaining to the United States. 
American Arbitration Association. National orga
nization of arbitrators from whose panel arbitrators are 
selected for labor and commercial disputes. The Associ
ation has produced a Code of Ethics and Procedural 
Standards for use and guidance of arbitrators. See 
Arbitration. 
American Bar Association. A National association of 
lawyers, a primary purpose of which is the improvement 
of lawyers' services and the administration of justice. 
Membership in the ABA is open to any lawyer who is in 
good standing in his or her state. 
American Bar Foundation. An outgrowth of the 
American Bar Association involved with sponsoring and 
funding projects in legal research, education and social 
studies. 
American clause. In marine insurance, a proviso in a 
policy to the effect that, in case of any subsequent 
insurance, the insurer shall nevertheless be answerable 
for the full extent of the sum subscribed by him, without 
right to claim contribution from subsequent underwrit
ers. 
American digest system. See Digest. 
American experience table of mortality. A series of 
tables dealing with life insurance, costs and values, 
varying according to the age of the insured, the period 
during which the policy has been in force, and the term 
of the particular policy.

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AMERICAN FEDERATION OF LABOR 
American Federation of Labor. An affiliation of labor 
unions. 
American Law Institute. Group . of American legal 
scholars who are responsible for the Restatements in the 
various disciplines of the law and who, jointly with the 
National Conference of Commissioners on Uniform 
State Laws, prepare some of the Uniform State Laws, 
e.g. Uniform Commercial Code. See Restatement of Law. 
American rule. The traditional "American Rule" is 
that attorney fees are not awardable to the winning 
party (i.e. each litigant must pay his own attorney fees) 
unless statutorily or contractually authorized; however 
exceptions exist in that an award may be made to 
successful party if the opponent has acted in bad faith, 
vexatiously, wantonly or for oppressive reasons or if the 
litigation confers a substantial benefit on the members 
of an ascertainable class and the court's subject matter 
jurisdiction makes possible an award that will operate to 
spread the costs proportionately among them. Huecker 
v. Milburn, C.A.Ky., 538 F.2d 1241, 1245. In addition a 
court may in its discretion award attorney fees in civil 
rights actions to the prevailing defendant if the action 
was frivolous, unreasonable or without foundation. 
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 
S.Ct. 694. Also, a number of federal statutes make 
provision for awards of attorney fees to prevailing plain
tiffs in actions involving violations of various federal 
laws (e.g., Fair Labor Standards Act, § 16, 29 U.S.C.A. 
§ 216(b» . See also Equal Access to Justice Act. 
Ameublissement /:lmyUwbl:lsmon/. In French law, a 
species of agreement which by a fiction gives to immov
able goods the quality of movable. 
Ami; amy. A friend; as alien ami, an alien belonging to 
a nation at peace with us; prochein ami, a next friend 
suing or defending for an infant, married woman, etc. 
Amiables compositeurs. See Amicable compounders. 
Amicable. Friendly; mutually forbearing. Agreed or 
assented to by parties having conflicting interests or a 
dispute; as opposed to hostile or adversary. 
Amicable action. An action brought and carried on by 
the mutual consent and arrangement of the parties, to 
obtain judgment of court on a doubtful question of law, 
the facts being usually settled by agreement. See Case 
(Case agreed on); Declaratory judgment. 
Amicable compounders. In Louisiana law and prac
tice, amicable compounders are arbitrators authorized to 
abate something of the strictness of the law in favor of 
natural equity. 
Amicable scire facias to revive a judgment / rem:lk:lb:ll 
sayriy feyshiY:ls/. A written agreement, signed by the 
person to be bound by the revival, in the nature of a 
writ of scire facias with a confession of judgment there
on, which must be duly docketed, but which requires no 
judicial action on the part of the court, and which has 
the force and effect of a judgment rendered upon an 
adverse or contested writ of scire facias. 
82 
Amicus curire / :lmayk:ls kyuriyiy / :lmiyk:ls kyliriyay / . 
Means, literally, friend of the court. A person with 
strong interest in or views on the subject matter of an 
action, but not a party to the action, may petition the 
court for permission to file a brief, ostensibly on behalf 
of a party but actually to suggest a rationale consistent 
with its own views. Such amicus curiae briefs are 
commonly filed in appeals concerning matters of a broad 
public interest; e.g. civil rights cases. Such may be filed 
by private persons or the government. In appeals to the 
U.S. courts of appeals, such brief may be filed only if 
accompanied by written consent of all parties, or by 
leave of court granted on motion or at the request of the 
court, except that consent or leave shall not be required 
when the brief is presented by the United States or an 
officer or agency thereof. Fed.R.App.P. 29. See also 
Sup.Ct.Rule 37. 
Amita hem:lt:l/. Lat. An aunt on the father's side. 
Amita magna. A great-aunt on the father's side. Ami
ta major. A great-great-aunt on the father's side. Ami
ta maxima. A great-great-great-aunt, or a great-great
grandfather's sister. 
Amitinus / rem:ltayn:ls/. The child of a brother or sister; 
a cousin; one who has the same grandfather, but differ
ent father and mother. 
Amittere / :lmit:lriy / . Lat. In the civil and old English 
law, to lose. Hence the old Scotch "amitt." 
Amittere curiam / :lmit:lriy kyuriY:lm/. To lose the 
court; to be deprived of the privilege of attending the 
court. 
Amittere legem terrre / :lmit:lriy liyj:lm teriy /. To lose 
the protection afforded by the law of the land. 
Amittere liberam legem / :lmit:lriy lW:lr:lm liyj:lm/. In 
old English law, to lose one's frank-law. A term having 
the same meaning as amittere legem terrre, (q.v.). He 
who lost his law lost the protection extended by the law 
to a free man, and became subject to the same law as 
thralls or serfs attached to the land. To lose the privi
lege of giving evidence under oath in any court; to 
become infamous, and incapable of giving evidence. If 
either party in a wager of battle cried "craven" he was 
condemned amittere liberam legem; 3 BI.Comm. 340. 
Amnesia. Loss of memory as a result of organic trauma, 
delirium lesions of the diencephalon area of the brain, 
hysteria or epilepsy. Functionally, identity loss can 
represent a means of coping with neurotic conflict. 
Three types of amnesia are: anterograde (inability to 
retain new impressions; may be a feature of senility); 
retrograde (failure to recall prior experiences); lacunar 
(loss of memory for certain periods of life). Such condi
tion is not generally sufficient for lack of competency to 
stand trial. U. S. ex reI. Parsons v. Anderson, 354 
F.Supp. 1060, 1071-1072, affd 481 F.2d 94. 
Amnesty / remn:lstiy / . A sovereign act of forgiveness for 
past acts, granted by a government to all persons (or to 
certain classes of persons) who have been guilty of crime 
or delict, generally political offenses,-treason, sedition, 
rebellion, draft evasion,-and often conditioned upon

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83 
their return to obedience and duty within a prescribed 
time. The 1986 Immigration Reform and Control Act 
provided amnesty for many undocumented aliens al
ready present in the country. 
Included in the concept of pardon is ctamnesty," which 
is similar in all respects to a full pardon, insofar as 
when it is granted both the crime and punishment are 
abrogated; however, unlike pardons, an amnesty usual
ly referS to a class of individuals irrespective of individu
al situations. State v. Morris, 55 Ohio St.2d 101, 9 
O.O.3d 92, 378 N.E.2d 708, 711. 
A declaration of the person or persons who have 
newly acquired or recovered the sovereign power in a 
nation, by which they pardon all persons who composed, 
supported, or obeyed the government which has been 
overthrown. 
Amnesty is the abolition and forgetfulness of the 
offense; pardon is forgiveness. Knote v. U. S., 95 U.S. 
149, 152, 24 L.Ed. 442. The first is usually addressed to 
crimes against the sovereignty of the nation, to political 
offenses; the second condones infractions of the peace of 
the nation. Burdick v. United States, 236 U.S. 79, 35 
S.Ct. 267, 271, 59 L.Ed. 476. 
Compare Pardon; Parole. 
Express amnesty is one granted in direct terms. 
Implied amnesty is one which results when a treaty of 
peace is made between contending parties. 
Amobarbital lE�ymowbarb�tol/. Nonproprietary name 
for isoamyl-ethylbarbituric acid. 
Among. Mingled with or in the same group or class. 
Intermingled with. In company or association with. In 
shares to each of, e.g. divided ctamong" the heirs. In or 
through the midst of. 
Amortization / �mort�zeysh�n/. In accounting, the allo
cation (and charge to expense) of the cost or other basis 
of an intangible asset over its estimated useful life. 
Intangible assets which have an indefinite life (e.g., 
goodwill) are not amortizable. Examples of amortizable 
intangibles include organization costs, patents, copy
rights and leasehold interests. A reduction in a debt or 
fund by periodic payments covering interest and part of 
principal, distinguished from: (1) depreciation, which is 
an allocation of the original cost of an asset computed 
from physical wear and tear as well as the passage of 
time, and (2) depletion, which is a reduction in the book 
value of a resource (such as minerals) resulting from 
conversion into a salable product. The operation of 
paying off bonds, stock, a mortgage, or other indebted
ness, commonly of a state or corporation, by install
ments, or by a sinking fund. An ctamortization plan" 
for the payment of an indebtedness is one where there 
are partial payments of the principal, and accrued inter
est, at stated periods for a definite time, at the expira
tion of which the entire indebtedness will be extin
guished. Compare Depreciation. 
Amortization reserve. An account created for book
keeping purposes to extinguish an obligation gradually 
over a period of time. 
AMOVE 
Amortized mortgage. Repayment of a mortgage over 
regular specified time intervals, with equal payments. 
This would reduce the principal, after any monies owing 
for interest are applied. 
Negative amortization. This occurs when monthly pay
ments are not large enough to cover all of the interest 
cost of an adjustable rate mortgage. The interest rate 
that isn't covered is added to the loan's principal, which 
then could increase to more than the amount borrowed. 
Amortization schedule. A schedule of periodic pay
ments of interest and principal owed on a debt obli
gation. 
Amotio /�m6wsh(iy)ow/. In the civil law, a moving or 
taking away. ctThe slightest amotio is sufficient to 
constitute theft, if the animus furandi be clearly estab
lished." See Amotion. 
Amotion / �m6wsh �n/. A putting or turning out, as the 
eviction of a tenant or a removal from office. Disposses
sion of lands. Ouster is an amotion of possession. A 
moving or carrying away; the wrongful taking of per
sonal chattels. 
In corporation law, the common law procedure by 
which a director may be removed for cause by the 
shareholders. 
Amount. The whole effect, substance, quantity, import, 
result, or significance. The sum of principal and inter
est. See also Sum certain. 
Amount covered. In insurance, the amount that is 
insured, and for which underwriters are liable for loss 
under a policy of insurance. 
Amount in controversy. The damages claimed or relief 
demanded by injured party in dispute; the amount 
claimed or sued for in litigation. Glenwood Light & 
Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 
121, 36 S.Ct. 30, 60 L.Ed. 174; Wabash Ry. Co. v. 
Vanlandingham, C.C.A.Mo., 53 F.2d 51. Amount of 
alleged damages required for diversity jurisdiction in 
Federal courts. 28 U.S.C.A. § 1332. See Jurisdictional 
amount. 
Amount of loss. In insurance, the diminution, destruc
tion, or defeat of the value of, or of the charge upon, the 
insured subject to the assured, by the direct consequence 
of the operation of the risk insured against, according to 
its value in the policy, or in contribution for loss, so far 
as its value is covered by the insurance. See Damages. 
Amount realized. The amount received by a taxpayer 
upon the sale or exchange of property. The measure of 
the amount received is the sum of the cash and the fair 
market value of any property or services received, plus 
any related debt assumed by the buyer. Determining 
the amount realized is the starting point for arriving at 
realized gain or loss. The amount realized is defined in 
I.R.C. § l00I(b) and accompanying Regulations. See 
Realized gain or loss; Recognized gain or loss. 
Amount to. To reach in the aggregate; to rise to or 
reach by accumulation of particular sums or quantities. 
Amove. To remove from a post or station.

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AMOVEAS MANUS 
Amoveas manus I eymowviy;)s mren;)s/. Lat. That you 
remove your hands. In old English law, after office 
found, the king was entitled to the things forfeited, 
either lands or personal property; the remedy for a 
person aggrieved was by "petition," or "m onstrans de 
droit," or "traverses, " to establish his superior right. 
Thereupon a writ issued, quod manus domini regis amo
veantur. 
Amparo lremparow/. In Spanish-American law, a doc
ument issued to a claimant of land as a protection to 
him, until a survey can be ordered, and the title of 
possession issued by an authorized commissioner. 
Amphetamine I remfet;)miynl remfet;)m;)n/. A drug 
which stimulates the central nervous system. Com. v. 
Crockett, 229 Pa.Super. 80, 323 A.2d 257, 259. "Methe
drine" is its trade name. Colorless, volatile, mobile 
liquid, inhalation of which vapor causes shrinking of 
nasal mucosa in head colds, sinusitis and hay fever. 
Ampliation lrempliyeysh;)n/. In civil law, a deferring of 
judgment until a cause be further examined. An order 
for the rehearing of a cause on a day appointed, for the 
sake of more ample information. 
In French law, a duplicate of an acquittance or other 
instrument. A notary's copy of acts passed before him, 
delivered to the parties. 
Amplius lrempliy;)s/. In the Roman law, more; further; 
more time. A word which the prretor pronounced in 
cases where there was any obscurity in a cause, and the 
judices were uncertain whether to condemn or acquit; 
by which the case was deferred to a day named. 
Amputation of right hand. An ancient punishment for 
a blow given in a superior court; or for assaulting a 
judge sitting in the court. 
AMT. See Alternative minimum tax. 
Amtrak. National Railroad Passenger Corporation. 
A multo fortiori ley m�ltow forshiyoray/. By far the 
stronger reason. 
Amusement. Pastime; diversion; enjoyment. A plea
surable occupation of the senses, or that which furnishes 
it. Young v. Board of Trustees of Broadwater County 
High School, 90 Mont. 576, 4 P.2d 725, 726. See also 
Enjoyment. 
Amusement tax. A government levy imposed on tickets 
sold to places of amusement, sporting events, etc.; ex
pressed as a percentage of the price of the ticket. See 
also Luxury tax. 
Amy. See Ami; Prochein ami. 
An. The English indefinite article, equivalent to "one" 
or "any"; seldom used to denote plurality. 
Anacrisis lren;)krayz;)s/. In the civil law, an investiga
tion of truth, interrogation of witnesses, and inquiry 
made into any fact, especially by torture. 
Analogous I;)nrel;)g;)s/. Derived from the Greek ana, up, 
and logos, ratio. Means bearing some resemblance or 
likeness that permits one to draw an analogy. 
84 
Analogy. Identity or similarity of proportion, where 
there is no precedent in point. In cases on the same 
subject, lawyers have recourse to cases on a different 
subject-matter, but governed by the same general princi
ple. This is reasoning by analogy. The similitude of 
relations which exist between things compared. 
Analytical jurisprudence. A theory and system of ju
risprudence wrought out neither by inquiring for ethical 
principles or the dictates of the sentiments of justice nor 
by the rules which may be actually in force, but by 
analyzing, classifying and comparing various legal con
ceptions. See Jurisprudence. 
Anaphrodisia lrenrefr;)diz(h)iy;)/. Impotentia creundi; 
frigidity; incapacity for sexual intercourse existing in 
either man or woman, and in the latter case sometimes 
called "dyspareunia." 
Anarchist. One who professes and advocates the doc
trines of anarchy, q.v. In the immigration statutes, it 
includes, not only persons who advocate the overthrow 
of organized government by force, but also those who 
believe in the absence of government as a political ideal, 
and seek the same end through propaganda. 
Anarchy. Absence of government; state of society 
where there is no law or supreme power; lawlessness or 
political disorder; destructive of and confusion in 
government. At its best it pertains to a society made 
orderly by good manners rather than law, in which each 
person produces according to his powers and receives 
according to his needs, and at its worst, the word per
tains to a terroristic resistance of all present govern
ment and social order. For "criminal anarchy," see 
Criminal. 
Anathema I ;)nreO;)m;)I . An ecclesiastical punishment by 
which a person is separated from the body of the church, 
and forbidden all intercourse with the members of the 
same. It differs from excommunication, which simply 
forbids the person excommunicated from going into the 
church receiving Communion. 
Anathematize I ;)nreO;)m;)tayz/. To pronounce anathema 
upon; to pronounce accursed by ecclesiastical authority. 
See Anathema. 
Anatocism I;)nret;)siz;)m/. In the civil law, repeated or 
doubled interest; compound interest; usury. 
Anatomical gift. Testamentary donation of a vital or
gan, or organs, generally for purpose of medical research 
or transplant. Most states have adopted the Uniform 
Anatomical Gift Act which authorizes the gift of all or 
part of a human body after death for specified purposes. 
Ancestor. One from whom a person lineally descended 
or may be descended; a progenitor. A former possessor; 
the person last seised. A deceased person from whom 
another has inherited land. Embraces both collaterals 
and lineals. Correlative of "heir." 
Ancestral I rensestr;)l/. Relating to ancestors, or to what 
has been done by them; as homage ancestral (q. v.). 
Derived from ancestors.

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Ancestral estates are such as are transmitted by descent, 
and not by purchase; or such as are acquired either by 
descent or by operation of law. Realty which came to 
the intestate by descent or devise from a dead ancestor 
or by deed of actual gift from a living one, there being 
no other consideration than that of blood. Real estate 
coming to distributee by descent, gift, or devise from any 
kinsman. Allotments to members of Indian tribes or 
their heirs have been treated as an ancestral estate. 
McDougal v. McKay, 237 U.S. 372, 35 S.Ct. 605, 607, 59 
L.Ed. 1001. 
Ancestry. Line of descent; persons comprising such. 
Term which embraces the study of the antecedents of 
humans and animals; pedigree. May be proved by 
general reputation. 
Anchorage. In English law, a duty paid by the owners 
of ships for the use of the port or harbor where they cast 
anchor. 
Ancient. Old; that which has existed from an indefi
nitely early period, or which by age alone has acquired 
certain rights or privileges accorded in view of long 
continuance. 
Ancient deed. A deed 30 [or 20] years old and shown to 
come from a proper custody and having nothing suspi
cious about it. See Ancient writings. 
Ancient demesne. Manors which in the time of Wil
liam the Conqueror were in the hands of the crown, and 
are so recorded in the Domesday Book. Also, in old 
English law, a species of copyhold, which differs, how
ever, from common copyholds in certain privileges, but 
yet must be conveyed by surrender, according to the 
custom of the manor. There are three sorts: (1) Where 
the lands are held freely by the king's grant; (2) custom
ary freeholds, which are held of a manor in ancient 
demesne, but not at the lord's will, although they are 
conveyed by surrender, or deed and admittance; (3) 
lands held by copy of court-roll at the lord's will, denom
inated copyholds of base tenure. 
Ancient documents. See Ancient writings. 
Ancient lights. See Lights, ancient. 
Ancient readings. Readings or lectures upon the an
cient English statutes, formerly regarded as of great 
authority in law. 
Ancient records. See Ancient writings. 
Ancient rent. The rent reserved at the time the lease 
was made, if the building was not then under lease. 
Ancients /eynsh:;mts/. In English law, gentlemen of the 
inns of court and chancery. In Gray's Inn the society 
consists of benchers, ancients, barristers, and students 
under the bar; and here the ancients are of the oldest 
barristers. In the Middle Temple, those who had passed 
their readings used to be termed "ancients." The Inns 
of Chancery consist of ancients and students or clerks; 
from the ancients a principal or treasurer is chosen 
yearly. 
ANCILLARY ATTACHMENT 
Ancient serjeant. In English law, the eldest of the 
queen's serjeants. The last holder of the office died in 
1866. See Serjeant at law. 
Ancient street. The doctrine is not based upon fact that 
streets have existed for a long time, but is invoked when 
it appears that common grantor owning land comprising 
street in question as well as property in question and 
other lots has given deeds to lots bounding them by 
street, thereby not only dedicating the street to public 
use but at same time creating private easements in the 
street, which cannot be taken without compensation. 
Dwornick v. State, 251 A.D. 675, 297 N.Y.S. 409, 411. 
Ancient wall. A wall built to be used, and in fact used, 
as a party-wall, for more than twenty years, by the 
express permission and continuous acquiescence of the 
owners of the land on which it stands. Schneider v. 
44-84 Realty Corporation, 169 Misc. 249, 7 N.Y.S.2d 305, 
309. 
Ancient water course. A water course is "ancient" if 
the channel through which it naturally runs has existed 
from time immemorial independent of the quantity of 
water which it discharges. Earl v. De Hart, 12 N.J.Eq. 
280. 
Ancient writings. Documents bearing on their face 
every evidence of age and authenticity, of age of 30 [or 
20] years, and coming from a natural and reasonable 
official custody. Hartzell v. U. S., C.C.A .Iowa, 72 F.2d 
569, 579. These are presumed to be genuine without 
express proof, when coming from the proper custody. 
Under Federal Rules of Evidence, a document is ad
missible if it is in such condition as to create no suspi
cion as to its authenticity, was in a place where it, if 
authentic, would likely be, and has been in existence 20 
years or more at the time it is offered. Fed.Evid.R. 
90 1 (b)(8). 
Ancienty /eynsh:mtiy/. Eldership; seniority. Used in 
the statute of Ireland, 14 Hen. VIII. 
Ancilla /rensil;}/. Lat. A handmaid, an auxiliary, a 
subordinate. 
Ancillary /rens;}lE�riy/. Aiding; attendant upon; describ
ing a proceeding attendant upon or which aids another 
proceeding considered as principal. Auxiliary or subor
dinate. 
Ancillary administration. Administration of estate in 
state where decedent has property and which is other 
than where decedent was domiciled. First Nat. Bank v. 
Blessing, 231 Mo.App. 288, 98 S.W.2d 149, 151. Admin
istration or probate taken out in a second or subsequent 
jurisdiction to collect assets or to commence litigation on 
behalf of the estate in that jurisdiction. Ancillary ad
ministration of estates is usually governed by state 
statutes. See e.g., Uniform Probate Code, § 4-101 et 
seq. 
Ancillary attachment. One sued out in aid of an action 
already brought; its only office being to hold the proper
ty attached under it for the satisfaction of the plaintiffs 
demand.

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ANCILLARY BILL 
Ancillary bill or suit. One growing out of and auxiliary 
to another action or suit, either at law or in equity, such 
as a bill for discovery, or a proceeding for the enforce
ment of a judgment, or to set aside fraudulent transfers 
of property. One growing out of a prior suit in the same 
court, dependent upon and instituted for the purpose 
either of impeaching or enforcing the judgment or de
cree in a prior suit. Caspers v. Watson, C.C.A.Ill., 132 
F.2d 614, 615. 
Ancillary claim. Term "ancillary" denotes any claim 
that reasonably may be said to be collateral to, depend
ent upon, or otherwise auxiliary to a claim asserted 
within federal jurisdiction in action. Hartley Pen Co. v. 
Lindy Pen Co., D.C.Cal., 16 F.R.D. 141, 154. Claim is 
"ancillary" when it bears a logical relationship to the 
aggregate core of operative facts which constitutes main 
claim over which court had independent basis of federal 
jurisdiction. Nishimatsu Const. Co., Ltd. v. Houston 
Nat. Bank, C.A.Tex., 515 F.2d 1200, 1205. See also 
Counterclaim (Compulsory counterclaim). 
Ancillary jurisdiction. Power of court to adjudicate 
and determine matters incidental to the exercise of its 
primary jurisdiction of an action. 
Under "ancillary jurisdiction doctrine" federal district 
court acquires jurisdiction of case or controversy as an 
entirety and may, as incident to disposition of matter 
properly before it, possess jurisdiction to decide other 
matters raised by case, though district court could not 
have taken cognizance of them if they had been indepen
dently presented. Ortman v. Stanray Corp., C.A.Ill., 371 
F.2d 154, 157. Such jurisdiction of federal court gener
ally involves either proceedings which are concerned 
with pleadings, processes, records or judgments of court 
in principal case or proceedings which affect property 
already in court's custody. Cooperative Transit Co. v. 
West Penn. Electric Co., C.C.A.W.Va., 132 F.2d 720, 723. 
Ancillary legislation. Legislative enactment which is 
auxiliary to or in aid of other and principal legislation. 
Ancillary proceeding. One growing out of or auxiliary 
to another action or suit, or which is subordinate to or in 
aid of a primary action, either at law or in equity. 
Register v. Stone's Independent Oil Distributors, 122 
Ga.App. 335, 177 S.E.2d 92, 94. In state courts, a 
procedural undertaking in aid of the principal action; 
for example, a bill for discovery in aid of a lawsuit or a 
garnishment proceeding. 
Ancillary process. Any process which is in aid of or 
incidental to the principal suit or action; e.g. attach
ment. See Ancillary proceeding. 
Ancillary receiver. One appointed in aid of, and in 
subordination to, a foreign receiver for purpose of col
lecting and taking charge of assets, as of insolvent 
corporation, in the jurisdiction where he is appointed. 
Ancipitis usus /rensip�t�s yuwz�s/. Lat. In interna
tional law, of doubtful use; the use of which is doubtful; 
that may be used for a civil or peaceful, as well as 
military or warlike, purpose. 
86 
And. A conjunction connecting words or phrases ex
pressing the idea that the latter is to be added to or 
taken along with the first. Added to; together with; 
joined with; as well as; including. Sometimes con
strued as "or." Land & Lake Ass'n v. Conklin, 182 A.D. 
546, 170 N.Y.S. 427, 428. 
It expresses a general relation or connection, a partic
ipation or accompaniment in sequence, having no inher
ent meaning standing alone but deriving force from 
what comes before and after. In its conjunctive sense 
the word is used to conjoin words, clauses, or sentences, 
expressing the relation of addition or connection, and 
signifying that something is to follow in addition to that 
which proceeds and its use implies that the connected 
elements must be grammatically co-ordinate, as where 
the elements preceding and succeeding the use of the 
words refer to the same subject matter. While it is said 
that there is no exact synonym of the word in English, it 
has been defined to mean "along with", "also", "and 
also", "as well as", "besides", "together with". Oliver v. 
Oliver, 286 Ky. 6, 149 S.W.2d 540, 542. 
"And/or" means either or both of. Poucher v. State, 
287 Ala. 731, 240 So.2d 695, 695. When expression 
"and/or" is used, that word may be taken as will best 
effect the purpose of the parties as gathered from the 
contract taken as a whole, or, in other words, as will 
best accord with the equity of the situation. Bobrow v. 
U. S. Casualty Co., 231 A.D. 91, 246 N.Y.S. 363, 367. 
Androgynus /rendroj�n�s/. A hermaphrodite. 
Androlepsy /rendrowlepsiy/. The taking by one nation 
of the citizens or subjects of another, in order to compel 
the latter to do justice to the former. 
Andromania / rendrowmeyniy�/. Nymphomania. 
Androphonomania / rendrowfon�meyniy�/. Homicidal 
insanity. 
Anecius / �niysh(iy )�s/ . Lat. Spelled also resnecius, eni
tius, reneas, eneyus, Fr. aisne. The eldest-born; the 
first-born; senior, as contrasted with the puis-ne (young
er). 
An et jour / on ey zhur /. Fr. Year and day; a year and 
a day. 
Aneurism, or aneurysm. A sac formed by the dilata
tion of the weakened walls of an artery, usually result
ing in a soft pulsating tumor. 
Anew. To try a case or issue "anew" or "de novo" 
implies that the case or issue has been heard before. 
See De novo. 
Angaria /reIJgeriy�/. A term used in the Roman law to 
denote a forced or compulsory service exacted by the 
government for public purposes; as a forced rendition of 
labor or goods for the public service; in particular, the 
right of a public officer to require the service of vehicles 
or ships. 
In feudal law, any troublesome or vexatious personal 
service paid by the tenant or villein to his lord.

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In maritime law, a forced service (onus) imposed on a 
vessel for public purposes; an impressment of a vessel. 
See Angary, right of. 
Angary, right of. In international law, formerly the 
right (jus angarire) claimed by a belligerent to seize 
merchant vessels in the harbors of the belligerent and to 
compel them, on payment of freight, to transport troops 
and supplies to a designated port. 
The right of a belligerent to appropriate, either for 
use, or for destruction in case of necessity, neutral 
property temporarily located in his own territory or in 
that of the other belligerent. The property may be of 
any description whatever, provided the appropriation of 
it be for military or naval purposes. 
Angel. An ancient English coin, of the value of ten 
shillings sterling. 
Angild /rengild/. In Saxon law, the single value of a 
man or other thing; a single weregild (q.v.); the compen
sation of a thing according to its single value or estima
tion. The double gild or compensation was called "twig
ild, " the triple, "trigild," etc. See Angylde. 
When a crime was committed, before the Conquest, 
the angild was the money compensation that the person 
who had been wronged was entitled to receive. 
Anglescheria /reIJgI�shiriy�/. In old English law, Eng
lishery; the fact of being an Englishman. 
Anglire jura in omni casu libertatis dant favorem 
/ reIJgliyiy jur� in 6mniy keyzyuw lib�rteyt�s drent 
f�v6r�m /. The laws of England in every case of liberty 
are favorable (favor liberty in all cases). 
Anglice / reIJgbsiy / . In English, a term formerly used in 
pleading when a thing is described both in Latin and 
English, inserted immediately after the Latin and as an 
introduction of the English translation. 
Anglo-Indian. An Englishman domiciled in the Indian 
territory of the British crown. 
Anglo-Saxon law. English law derived from those peo
ple who conquered Britain in the 5th and 6th centuries 
and who dominated England until the Norman Con
quest. 
Anguish. Extreme pain of body or mind; excruciating 
distress. Carson v. Thompson, Mo.App., 161 S.W.2d 995, 
1000. Agony, but, as used in law, particularly mental 
suffering or distress of great intensity. It is not synon
ymous with inconvenience, annoyance, or harassment. 
Angylde. In Saxon law, the rate fixed by law at which 
certain injuries to person or property were to be paid 
for; in injuries to the person, it seems to be equivalent 
to the "were," i.e. , the price at which every man was 
valued. It seems also to have been the fixed price at 
which cattle and other goods were received as currency, 
and to have been much higher than the market price, or 
ceapgild. See Angild. 
Anhlote. In old English law, a single tribute or tax, paid 
according to the custom of the country as scot and lot. 
ANIMUS CANCELLANDI 
Aniens, or anient. Null, void, of no force or effect. See 
Anniented. 
Animal. Non-human, animate being which is endowed 
with the power of voluntary motion. Animal life other 
than man. Bernardine v. City of New York, 182 Misc. 
609, 44 N.Y.S.2d 881, 883. 
Domestic animals are tame as distinguished from wild; 
living in or near the habitations of man or by habit or 
special training in association with man. 
Domitre are those which have been tamed by man; 
domestic. 
Fera naturre are those which still retain their wild 
nature. 
Mansuetre naturre are those gentle or tame by nature, 
such as sheep and cows. 
Wild animals are those whose habitat is generally the 
woods or wilds; undomesticated; untamed. 
Animals of a base nature. Animals in which a right of 
property may be acquired by reclaiming them from 
wildness, but which, at common law, by reason of their 
base nature, are not regarded as possible subjects of a 
larceny. Some animals which are now usually tamed 
come within this class, as dogs and cats; and others 
which, though wild by nature and often reclaimed by art 
and industry, clearly fall within the same rule, as bears, 
foxes, apes, monkeys, ferrets, and the like. 
Animo / ren�mow /. Lat. With intention, disposition, 
design, will. Quo animo, with what intention. Animo 
cancellandi, with intention to cancel. Furandi, with 
intention to steal. 4 Bl.Comm. 230. Lucrandi, with 
intention to gain or profit. Manendi, with intention to 
remain. Morandi, with intention to stay, or delay. Re
publicandi, with intention to republish. Revertendi, 
with intention to return. 2 Bl.Comm. 392. Revocandi, 
with intention to revoke. Testandi, with intention to 
make a will. See Animus and the titles which follow it. 
Animo et corpore / ren�mow et k6rp�riy /. By the mind, 
and by the body; by the intention and by the physical 
act. 
Animo et facto / ren�mow et frektow /. To effect a 
change of domicile there must be "animo et facto" that 
is, an intention to make the new place one's abode 
coupled with an actual transfer of bodily presence from 
one place to another. Com. ex reI. McVay v. McVay, 
177 Pa.Super. 623, 112 A.2d 649, 652. 
Animo felonico / ren�mow f�16n�kow /. With felonious 
intent. 
Animus / ren�m�s/. Lat. Mind; soul; intention; disposi
tion; design; will; that which informs the body. Animo 
(q.v.), with the intention or design. These terms are 
derived from the civil law. 
Animus ad se omne jus ducit / ren�m�s red siy 6mniy j�s 
d(y)uws�t/. It is to the intention that all law applies. 
Law always regards the intention. 
Animus cancellandi / ren�m�s krens�lrenday / . The in
tention of destroying or canceling (applied to wills).

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ANIMUS CAPIENDI 
Animus capiendi lren;}m;}s krepiyimday/. The intention 
to take or capture. 
Animus dedicandi lren;}m;}s ded;}krenday/. The inten
tion of donating or dedicating. 
Animus defamandi lren;}m;}s def;}mrenday/. The inten
tion of defaming. 
Animus derelinquendi I ren;}m;}s diyrel;}IJkwimday I. 
The intention of abandoning. 
Animus differendi lren;}m;}s dif;}renday/. The intention 
of obtaining delay. 
Animus donandi lren;}m;}s downrenday/. The intention 
of giving. Expressive of the intent to give which is 
necessary to constitute a gift. 
Animus et factum lren;}m;}s et frekt;}m/. To constitute a 
change of domicile, there must be an "animus et fac
tum"; the "factum" being a transfer of the bodily pres
ence, and the "animus" the intention of residing perma
nently or for indefinite period. See Animus manendi. 
Animus et factus lren;}m;}s et frekt;}s/. Intention and 
act; will and deed. Used to denote those acts which 
become effective only when accompanied by a particular 
intention. 
Animus furandi lren;}m;}s fy;}rrenday/. Intent to steal, 
or feloniously to deprive the owner permanently of his 
property, an essential element of the crime of larceny. 
State v. Hudson, W.Va., 206 S.E.2d 415, 419. 
Animus hominis est anima scripti I ren;}m;}s hom;}n;}s 
est ren;}m;} skriptay/. The intention of the party is the 
soul of the instrument. In order to give life or effect to 
an instrument, it is essential to look to the intention of 
the individual who executed it. 
Animus lucrandi lren;}m;}s l(y)uwkrrenday/. The inten
tion to make a gain or profit. 
Animus malus I ren;}m;}s mrel;}s/. Evil motive; the cen
tral element of the malice which justifies an award of 
punitive damages. Seimon v. Southern Pac. Transp., 67 
C.A.3d 600, 136 CaLRptr. 787, 791. 
Animus manendi I ren;}m;}s m;}nenday I. The intention 
of remaining; intention to establish a permanent resi
dence. This is the point to be settled in determining the 
domicile or residence of a party. See Animus et factum. 
Animus morandi lren;}m;}s m;}rrenday/. The intention 
to remain, or to delay. 
Animus possidendi lren;}m;}s powz;}senday/. The inten
tion of possessing. 
Animus quo lren;}m;}s kwow/. The intent with which. 
Animus recipiendi lren;}m;}s r;}sipiyenday/. The inten
tion of receiving. 
Animus recuperandi lren;}m;}s r;}k(y)uwp;}rrenday/. The 
intention of recovering. 
Animus republicandi I ren;}m;}s r;}p�bbkrenday I. The 
intention to republish. 
Animus restituendi lren;}m;}s r;}stityuwenday/. The in
tention of restoring. 
88 
Animus revertendi I ren;}m;}s riyv;}rtenday I. The inten
tion of returning. 
Animus revocandi I ren;}m;}s revowkrenday I. The inten
tion to revoke. 
Animus signandi lren;}m;}s signrendayrsaynrenday/. In
tention to sign instrument as and for a wilL Hamlet v. 
Hamlet, 183 Va. 453, 32 S.E.2d 729, 732. 
Animus testandi lren;}m;}s testrenday/. Intention or 
purpose to make wilL Also expressed as animo testandi. 
An, jour, et waste. In feudal law, year, day, and waste. 
A forfeiture of the lands to the crown incurred by the 
felony of the tenant, after which time the land escheats 
to the lord. See Year (Year, day, and waste). 
Ann. (or An.). Abr. Annual; Annotated. 
Annates I reneytsl ren;}tsl . In ecclesiastical law, first
fruits paid out of spiritual benefices to the Pope, so 
called because the value of one year's profit was taken 
as their rate. 
Annex I ;}neks/. Derived from the Latin "annectere," 
meaning to tie or bind to. To attach, and often, specifi
cally, to subjoin. To add to; to unite. The word ex
presses the idea of joining a smaller or subordinate 
thing with another, larger, or of higher importance. To 
consolidate, as school districts. To make an integral 
part of something larger. 
It implies physical connection or physically joined to, 
yet physical connection may be dispensed with, and 
things may be annexed without being in actual contact, 
when reasonably practicable. Elliott Common School 
Dist. No. 48 v. County Board of School Trustees, Tex.Civ. 
App., 76 S.W.2d 786, 789. Something appended to, as a 
supplementary structure or wing. See also Appendant. 
Annexation. The act of attaching, adding, joining, or 
uniting one thing to another; generally spoken of the 
connection of a smaller or subordinate thing with a 
larger or principal thing. Term is usually applied with 
respect to land or fixtures, as: the acquisition of territo
ry or land by a nation, state or municipality; the legal 
incorporation of a town or city into another town or city. 
The attaching an illustrative or auxiliary document to 
a deposition, pleading, deed, etc., may be called "annex
ing" it. See Exhibit. 
In the law relating to fixtures, actual annexation 
includes every movement by which a chattel is joined or 
united to the property; constructive annexation is the 
union of such things as have been holden parcel of the 
realty, but which are not actually annexed, fixed, or 
fastened to the property. See also Fixture. 
Anniented lreniyent;}d/. Made null, abrogated, frustrat
ed, or brought to nothing. 
Anniversary. An annual day, recurring each year on 
the same date; commonly to commemorate an impor
tant event. In old-ecclesiastical law, a day set apart in 
memory of a deceased person. Also called "year day" or 
"mind day."

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89 
Anniversary date. As applied to insurance policy, 
means yearly recurring date of the initial issuance date. 
Anno domini / renow d6m:may /. In the year of the Lord. 
Commonly abbreviated A.D. The computation of time, 
according to the Christian era, dates from the birth of 
Christ. 
Annonre civiles / :m6wnay siv�1iyz/. A species of yearly 
rents issuing out of certain lands, and payable to certain 
monasteries. 
Annotatio /renowteysh(iy)ow/. In the civil law, the sign
manual of the emperor; a rescript of the emperor, 
signed with his own hand. It is distinguished both from 
a rescript and pragmatic sanction. 
Annotate; Annotated. See Annotation. 
Annotation / ren�teysh�n/. A remark, note, case sum
mary, or commentary on some passage of a book, statu
tory provision, court decision, or the like, intended to 
illustrate or explain its meaning. See also Digest; Head
note. 
Civil law. An imperial rescript (see Rescript) signed by 
the emperor. The answers of the prince to questions 
put to him by private persons respecting some doubtful 
point of law. Also summoning an absentee, and, as well 
the designation of a place of deportation. 
Statutory. Brief summaries of the law and facts of cases 
interpreting or applying statutes passed by Congress or 
state legislatures which are included (normally follow
ing text of statute) in annotated statutes or codes. 
Announced. A decision is "announced," preventing 
nonsuit, when court's conclusion on issue tried is made 
known from bench or by any publication, oral or writ
ten, even if judgment has not been rendered. 
Annoy. To disturb or irritate, especially by continued or 
repeated acts; to weary or trouble; to irk; to offend. 
People v. Moore, 137 C.A.2d 197, 290 P.2d 40, 41. See 
also Annoyance. 
Annoyance. Discomfort; vexation. Not generally syn
onymous with anguish, inconvenience, or harassment. 
Such may result from either physical or mental condi
tions. It includes feeling of imposition and oppression. 
See also Harassment; Nuisance. 
Annual / renyuw�l/. Of or pertaining to year; returning 
every year; coming or happening yearly. Occurring or 
recurring once in each year; continuing for the period of 
a year; accruing within the space of a year; relating to 
or covering the events or affairs of a year. Once a year, 
without signifying what time in year. See Annually. 
Annual accounting period. In determining a taxpay
er's income tax liability, only those transactions taking 
place during a particular tax year are taken into consid
eration. For reporting and payment purposes, there
fore, the tax life of taxpayers is divided into equal 
annual accounting periods. See Accounting period. 
Annual assay. An annual trial of the gold and silver 
coins of the United States, to ascertain whether the 
ANNUAL STATEMENT 
standard fineness and weight of the coinage is main
tained. 31 U.S.C.A. § 363. 
Annual average earnings. Term used in worker's com
pensation law to describe a claimant's income both from 
seasonal and nonseasonal employment, but for inclusion 
the nonseasonal income is limited to employment of the 
same class as the seasonal. 
Annual depreciation. The annual loss, not restored by 
current maintenance, which is due to all the factors 
causing the ultimate retirement of the property. These 
factors embrace wear and tear, decay, inadequacy, and 
obsolescence. The annual loss in service value not re
stored by current maintenance and incurred in connec
tion with the consumption or prospective retirement of 
property in the course of service from causes known to 
be in current operation, and whose effect can be forecast 
with a reasonable approach to accuracy. State v. Hamp
ton Water Works Co., 91 N.H. 278, 18 A.2d 765, 770. 
See Depreciation. 
Annual exclusion. The amount each year which can be 
excluded in computing the gift tax on the donor without 
using the lifetime exemption. 
Annually. In annual order or succession; yearly, every 
year, year by year. At end of each and every year 
during a period of time. Imposed once a year, computed 
by the year. Yearly or once a year, but does not in itself 
signify what time in year. Phillips Petroleum Co. v. 
Harnly, Tex.Civ.App., 348 S.W.2d 856, 860. 
Annual meeting. The meeting of stockholders each 
year called to elect officers and directors, to ratify ac
tions of officers and directors and to vote on corporate 
matters which come before it. Generally, articles of 
organization or by-laws fix a date for such meeting each 
year. Annual meetings are required of publicly held 
corporations. 
Annual percentage rate. The actual cost of borrowing 
money, expressed in form of annual interest rate to 
make it easy for one to compare cost of borrowing 
money among several lenders or sellers on credit. Full 
disclosure of interest rate and other charges is required 
by the Truth-in-Lending Act (q.v.). Commonly abbrevi
ated APR. 
Annual permit. Yearly requirement in certain states 
for domestic corporations to do business in state. The 
fee is set according to the capitalization of the corpora
tion. 
Annual report. A report for stockholders and other 
interested parties prepared by corporation once a year; 
includes a balance sheet, an income statement, a state
ment of changes in financial position, a reconciliation of 
changes in owners' equity accounts, a summary of signif
icant accounting principles, other explanatory notes, the 
auditor's report, and often comments from management 
about the year's business and prospects for the next 
year. By law, any public corporation that holds an 
annual stockholders meeting is required to issue an 
annual report. See also 10- K. 
Annual statement. See Annual report.

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ANNUAL VALUE 
Annual value. The net yearly income derivable from a 
given piece of property. Its fair rental value for one 
year, deducting costs and expenses; the value of its use 
for a year. 
Annua nee debitum judex non separat ipsum 
lrenyuw;) nek deb;)t;)m juwdeks non sep;)r;)t ips;)m/. A 
judge (or court) does not divide annuities nor debt. Debt 
and annuity cannot be divided or apportioned by a 
court. 
Annua pensione I renyuw;) penshiyowniy I. An ancient 
writ to provide the king's chaplain, if he had no prefer
ment, with a pension. 
Annuitant. The party entitled to receive payments from 
an annuity contract. See also Annuity. 
Annuity I ;)n(y)uw;)tiy I. A right to receive fixed, periodic 
payments, either for life or for a term of years. Moore 
v. O'Cheskey, App., 87 N.M. 66, 529 P.2d 292, 293. A 
fixed sum payable to a person at specified intervals for a 
specific period of time or for life. Payments represent a 
partial return of capital and a return (interest) on the 
capital investment. Therefore, an exclusion ratio must 
generally be used to compute the amount of nontaxable 
income. Special rules apply to employee retirement 
plan annuities. 
The payment or receipt of a series of equal amounts of 
money per period for a specified amount of time. In an 
ordinary annuity, payments are made at the end of each 
period; in an annuity due, payments are made at the 
beginning. 
Annuity bond. A bond without a maturity date, that is, 
perpetually paying interest. 
Annuity certain. Payable for specified period; no mat
ter the time of death of the annuitant. 
Annuity trust. See that title. 
Cash refund annuity. Policy which provides for the 
lump sum payment at the death of the annuitant of the 
difference between the total received and the price paid. 
Contingent annuity. Funded annuity with payments to 
commence on the happening of an uncertain event; e.g. 
death of named person other than annuitant. An annu
ity whose number of payments depends upon the out
come of an event whose timing is uncertain at the time 
the annuity is set up. 
Deferred annuity. Payments begin at some specified 
future date provided the beneficiary is alive at such 
date. See also Deferred annuity contract. 
Fixed annuity. Annuity that guarantees fixed pay
ments, either for life or for a specified period, to annui
tant. 
Group annuity contract. A contract to make periodic 
payments to a member of a group covered by such 
contract. The usual type is a pension plan providing 
annuities upon retirement for individual employees un
der a master contract. 
Joint and survivorship annuity. An annuity which is 
payable to the named annuitants during the period of 
90 
their joint lives, with the annuity to continue to the 
survivor when the first annuitant dies. 
Joint annuity. An annuity which is paid to the two 
named persons until the first one dies, at which time the 
annuity ceases. 
Life annuity. Provides for payment of income to annui
tant only during his lifetime; even though death is 
premature. 
Private annuity. A contract for periodic payments to 
the annuitant from private as distinguished from public 
or life insurance company. 
Refund annuity. Annuitant is assured a specified annu
al sum during his life, with the further assurance that 
in the event of his premature death there will be paid to 
his estate an additional amount which represents the 
difference between the purchase price and the amount 
paid out during annuitant's life. 
Retirement annuity. Policy in which payments to an
nuitant commence at some future date; e.g. after retire
ment. If annuitant dies in interval or surrender is 
desired, an agreed upon amount is refunded to annui
tant's estate. 
Straight annuity. A contract usually by an insurance 
company to make periodic payments at monthly or 
yearly intervals; distinguishable from life insurance 
contract which looks to longevity, while annuity looks to 
transiency. Helvering v. LeGierse, 312 U.S. 531, 541, 61 
S.Ct. 646, 85 L.Ed. 996. Straight annuity contract calls 
for a fixed amount of payment as distinguished from the 
variable annuity. 
Straight life annuity. See Life annuity; Straight annui
ty, above. 
Survivorship annuity. See Joint and survivorship annu
ity, above. 
Variable annuity. A contract calling for payments to 
the annuitant in varying amounts depending on the 
success of the investment policy of the insurance compa
ny; unlike a straight annuity which requires the pay
ment of a fixed amount. Purpose of this type of annuity 
is to offset deflated value of dollar caused by inflation. 
Annuity policy. An insurance policy providing for 
monthly or periodic payments to insured to begin at 
fixed date and continue through insured's life. Hamil
ton v. Penn Mut. Life Ins. Co., 196 Miss. 345, 17 So.2d 
278, 280. 
Annuity trust. A form of trust calling for payment of a 
fixed amount of income regardless of the amount of 
principal. In re McQueen's Will, 65 N.Y.S.2d 201, 205. 
See also Trust (Annuity trust). 
Annul I ;)n;}l/. To reduce to nothing; annihilate; obliter
ate; to make void or of no effect; to nullify; to abolish; 
to do away with. To cancel; destroy; abrogate. To 
annul a judgment or judicial proceeding is to deprive it 
of all force and operation, either ab initio or prospective
ly as to future transactions.

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91 
Annulment. To nullify, to abolish, to make void by 
competent authority. An "annulment" differs from a 
divorce in that a divorce terminates a legal status, 
whereas an annulment establishes that a marital status 
never existed. Whealton v. Whealton, 67 Cal.2d 656, 63 
Cal.Rptr. 291, 294, 432 P.2d 979. Grounds and proce
dures for annulment of marriage are governed by state 
statutes. 
Annum /ren'Jm/. Year. 
Annum, diem, et vastum / ren'Jm, daY'Jm, 'Jt veyst'Jm/. 
See Year, day, and waste. 
Annus /ren'Js/. Lat. In civil and old English law, a 
year; the period of three hundred and sixty-five days. 
See Annual. 
Annus, dies, et vastum / ren'Js, dayiyz, 'Jt veyst'Jm/. In 
old English law, year, day, and waste. See (Year, day, 
and waste. 
Annus est mora motus quo suum planeta pervolvat 
circulum /ren'Js est mor'J mowt'Js kwow s(y)uw'Jm 
pbneyt'J p'Jrvolv'Jt s�rk(y)'JI'Jm/. A year is the duration 
of the motion by which a planet revolves through its 
orbit. 
Annus et dies / ren'Js 'Jt dayiyz/. A year and a day. 
Annus inceptus pro completo habetur / ren'Js 'Jnsept'Js 
prow k'Jmpliytow h'Jbiyt'Jr /. A year begun is held as 
completed. 
Annus luctus /ren'Js l�wkt'Js/. The year of mourning. 
It was a rule among the Romans, and also the Danes 
and Saxons, that widows should not marry infra annum 
luctUs (within the year of mourning). 
Annus utilis /ren'Js yuwt'JI'Js/. A year made up of avail
able or serviceable days. In the plural, anni utiles 
signifies the years during which a right can be exercised 
or a prescription grow. In prescription, the period of 
incapacity of a minor, etc., was not counted; it was no 
part of the anni utiles. 
Annuus reditus /ren'Js red'Jt'Js/. A yearly rent; annuity. 
2 Bl.Comm. 41. 
Anomalous / 'Jnom'JI'Js/. Deviating from common rule, 
method, or type. Irregular; exceptional; abnormal; un
usual. 
Anomalous indorser / 'Jnom'JI'Js 'Jndors'Jr /. A stranger 
to a note, who indorses it after its execution and deliv
ery but before maturity, and before it has been indorsed 
by the payee. 
Anomalous plea / 'Jnom'JI'Js pliy /. One which is partly 
affirmative and partly negative. 
Anon., An., A / 'Jnon/. Abbreviations for anonymous. 
A non posse ad non esse sequitur argumentum nec
essarie negative, licet non affirmative / ey non pOsiy 
red non esiy sekw'Jt'Jr argy'Jment'Jm nes'Jseriyiy neg'Jtay
viy, lays'Jt non 'Jf'Jrm'Jtayviy/. A literal translation
From impossibility to non-existence the inference fol
lows necessarily in the negative, though not in the 
affirmative-is as ambiguous as the original. It could 
ANSWER 
be translated thus: The negative inference of non-exist
ence necessarily follows from impossibility of existence, 
but the affirmative inference of existence cannot be 
drawn from mere possibility. 
Anonymous. Nameless; lacking a name or names; e.g. 
a pUblication, article, or the like, without any designa
tion of authorship; an unsigned letter; a tip from an 
unknown service. 
Another. Additional. Distinct or different. 
Another action pending. See Autre action pendant. 
Anoysance / 'Jnoyz'Jns/. Annoyance; nuisance. 
Ansel, ansul, or auncel /ons'JI/. In old English law, an 
ancient mode of weighing by hanging scales or hooks at 
either end of a beam or staff, which, being lifted with 
one's finger or hand by the middle, showed the equality 
or difference between the weight at one end and the 
thing weighed at the other. 
Answer. As a verb, the word denotes an assumption of 
liability, as to "answer" for the debt or default of anoth
er. 
Discovery. A person who fails to answer, or answers 
evasively or incompletely, deposition or interrogatory 
questions, may be compelled to do so under Fed.R. Civil 
P. 37. 
Frivolous answer. See Sham answer, below. 
Irrele vant answer. One that has no substantial relation 
to the controversy; distinguishable from a sham answer. 
Such may be ordered stricken under Fed.R. Civil P. 12(f). 
Pleading. The response of a defendant to the plaintiffs 
complaint, denying in part or in whole the allegations 
made by the plaintiff. A pleading by which defendant 
endeavors to resist the plaintiffs demand by an allega
tion of facts, either denying allegations of plaintiffs 
complaint or confessing them and alleging new matter 
in avoidance, which defendant alleges should prevent 
recovery on facts alleged by plaintiff. In pleading, un
der the Codes and Rules of Civil Procedure, the answer 
is the formal written statement made by a defendant 
setting forth the grounds of his defense; corresponding 
to what in actions under the common-law practice is 
called the "plea." See Fed.R. Civil P. 8 and 12. 
Under Fed.R.Civil P. 12, a person may use an answer 
to set up all defenses, but he also has the option to use a 
motion to assert certain defenses. 
See also Affirmative defense; Defense; Denial; Supple
mental answer. 
In chancery pleading, the term denotes a defense in 
writing, made by a defendant to the allegations con
tained in a bill or information filed by the plaintiff 
against him. 
Sham answer. One sufficient on its face but so clearly 
false that it presents no real issue to be tried. One good 
in form, but false in fact and not pleaded in good faith. 
A frivolous answer, on the other hand, is one which on 
its face sets up no defense, although it may be true in 
fact. On motion of a party, the court may order strick-

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ANSWER 
en from the pleading any insufficient defense. Fed.R. 
Civil P. 12(f). 
Answerable. See Liability. 
Antapocha /rentrep�k�/. In the Roman law, a transcript 
or counterpart of the instrument called "apocha" (q. v.), 
signed by the debtor and delivered to the creditor. 
Ante. Lat. Before. Usually employed in old pleadings 
as expressive of time, as prre (before) was of place, and 
coram (before) of person. 
Occurring in a report or a text-book, it is used to refer 
the reader to a previous part of the book. Synonymous 
to "supra"; opposite of "post" or "i nfra." 
Antea /rentiy�/. Lat. Formerly; heretofore. 
Antecedent/ rent�siyd�ntl. Prior in point of time. 
Antecedent claim. A preexisting claim. In law of 
negotiable instruments, a holder takes for value if he 
takes the instrument for an antecedent claim against 
any person whether or not the claim is due. U.C.C. 
§ 3-303(b). 
Antecedent creditors. Those whose debts are created 
before the debtor makes a transfer not lodged for record. 
Antecedent debt. In contract law, that which may or 
may not furnish consideration for a new contract to pay. 
A negotiable instrument given for an antecedent debt is 
supported by adequate consideration. U.C.C. § 3-408. 
In former bankruptcy law, a debt which was incurred 
before four months prior to filing of bankruptcy petition 
and hence not a preference. Bankruptcy Act (1898), 
§ 60a. 
Antecessor hi!nt�ses�r/. An ancestor (q.v.). 
Antedate. To affix an earlier date; to date an instru
ment as of a time before the time it was written. Such 
does not affect the negotiability of the instrument. 
U.C.C. § 3-114. 
Ante exhibitionem billre /rentiy eks�bishiy6wn�m biliy/. 
Before the exhibition of the bill. Before suit begun. 
Ante-factum /rentiy-frekt�m/ or ante-gestum /rentiy
jest�m/. Done before. A Roman law term for a previ
ous act, or thing done before. 
Antejuramentum /rentiyjur�ment�m/. In Saxon law, a 
preliminary or preparatory oath (called also "prrejura
mentum, " and "juramentum calumnire," (q.v.), which 
both the accuser and accused were required to make 
before any trial or purgation; the accuser swearing that 
he would prosecute the criminal, and the accused mak
ing oath on the very day that he was to undergo the 
ordeal that he was innocent of the crime with which he 
was charged. 
Ante litem motam /rentiy layt�m m6wt�m/. At time 
when declarant had no motive to distort truth. Before 
suit brought, before controversy instituted. Also, before 
the controversy arose. 
Ante mortem interest / rentiy mort�m int(�)r�stl. Inter
ests existing only prior to, and not after, transferor's 
death. 
92 
Antenati /rentiyneytay/. See Ante natus. 
Ante natus / rentiy neyt�s/. Born before. A person born 
before another person or before a particular event. The 
term is particularly applied to one born in a country 
before a revolution, change of government or dynasty, or 
other political event, such that the question of his 
rights, status, or allegiance will depend upon the date of 
his birth with reference to such event. In England, the 
term commonly denotes one born before the act of union 
with Scotland; in America, one born before the declara
tion of independence. Its opposite is post natus, &ne 
born after the event. 
Antenuptial / rentiyn�psh�lI. Made or done before a 
marriage. 
Antenuptial agreement. An agreement between pro
spective spouses made in contemplation of marriage and 
to be effective upon marriage. Uniform Premarital 
Agreement Act, § 1. Antenuptial agreements are gen
erally entered into by people about to enter marriage in 
an attempt to resolve issues of support, distribution of 
wealth and division of property in the event of the death 
of either or the failure of the proposed marriage result
ing in either separation or divorce. The Uniform Act, 
which has been adopted by a number of states, sets forth 
the formalities of execution, amendment or revocation 
(any of which do not require consideration for enforce
ment), the matters that can be contracted for, enforce
ment, etc. 
Antenuptial gift. A transfer of property from one party 
to the marriage to the other before the marriage with
out consideration. 
Antenuptial settlements. See Antenuptial agreement; 
Palimony. 
Antenuptial will. A will executed by a person prior to 
his marriage. Such will is generally deemed revoked 
unless it appears on the face of the will that it is in 
contemplation of marriage. 
Anthropometry / renOr�p6m�triy /. In criminal law and 
medical jurisprudence, the measurement of the human 
body. A system of measuring the dimensions of the 
human body, both absolutely and in their proportion to 
each other, the facial, cranial, and other angles, the 
shape and size of the skull, etc., for purposes of compari
son with corresponding measurements of other individu
als, and serving for the identification of the subject in 
cases of doubtful or disputed identity. It was largely 
adopted after its introduction in France in 1883, but fell 
into disfavor as being costly and as liable to error. It 
has given place to the "finger print" system devised by 
Francis Galton and to such identification procedures as 
DNA testing. See Bertillon System; DNA identification. 
Antichresis /rent�kriyz�s/. In the civil law, a species of 
mortgage, or pledge of immovables. An agreement by 
which the debtor gives to the creditor the income from 
the property which he has pledged, in lieu of the inter
est on his debt. In the French law, if the income was 
more than the interest, the debtor was entitled to de-

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mand an account of the income, and might claim any 
excess. 
By the law of Louisiana, there are two kinds of 
pledges,-the pawn and the antichresis. A pawn relates 
to movables, and the antichresis to immovables. The 
antichresis must be reduced to writing; and the creditor 
thereby acquires the right to the fruits, etc., of the 
immovables, deducting yearly their proceeds from the 
interest, in the first place, and afterwards from the 
principal of his debt. He is bound to pay taxes on the 
property, and keep it in repair, unless the contrary is 
agreed. The creditor does not become the proprietor of 
the property by failure to pay at the agreed time, and 
any clause to that effect is void. He can only sue the 
debtor, and obtain sentence for sale of the property. 
The possession of the property is, however, by the con
tract, transferred to the creditor. La.Civil Code Arts. 
3176-3181. The "antichresis" is an antiquated contract, 
and has been resorted to in Louisiana in but a few 
instances. 
Anticipation. Act of doing or taking a thing before its 
proper time. To do, take up, or deal with, before anoth
er; to preclude or prevent by prior action; to be before 
in doing. 
In conveyancing, the act of assigning, charging, or 
otherwise dealing with income before it becomes due. 
In patent law, an invention is anticipated by prior art 
when the invention is not new or lacks novelty over that 
art. Topliff v. Topliff, 145 U.S. 156, 12 S.Ct. 825, 36 
L.Ed. 658. Defense of "anticipation" in suit for patent 
infringement is made out when, except for insubstantial 
differences, the prior patent contains all of the same 
elements operating in the same fashion to perform an 
identical function. Ropat Corp. v. West Bend Co., D.C. 
Ill., 382 F.Supp. 1030, 1036. Unless all of same ele
ments are found in exactly same situation and are 
united in same way to perform identical function in a 
single prior art reference, there is no "anticipation" 
which will invalidate that patent. Ceramic Tilers Sup
ply, Inc. v. Tile Council of America, Inc., C.A.Cal., 378 
F.2d 283, 284. 
In law of negligence, "anticipation" is not confined to 
expectation. It means probability, not possibility, as 
applied to duty to anticipate consequences of conduct 
attacked as negligent. Empire Dist. Electric Co. v. Har
ris, C.C.A.Mo., 82 F.2d 48, 52. 
Anticipation note. Discount or rebate for prepayment. 
Anticipatory assignment of income. See Assignment 
(Assignment of income). 
Anticipatory breach of contract. The assertion by a 
party to a contract that he or she will not perform a 
future obligation as required by the contract. Such 
occurs when a party to an executory contract manifests 
a definite and unequivocal intent prior to time fixed in 
contract that it will not render its performance under 
the contract when that time arrives, and in such a case 
the other party may treat the contract as ended. Leazzo 
v. Dunham, 95 Ill.App.3d 847, 51 Ill.Dec. 437, 440, 420 
N.E.2d 851, 854. 
ANTINOMY 
The right of one party to a contract to sue for breach 
before the date set for performance when the other 
party conveys his intention not to perform (U.C.C. 
§ 2-610), though the repudiating party may retract his 
repUdiation prior to date for performance if the other 
party has not acted on the repudiation (U.C.C. § 2-611). 
Some jurisdictions require the aggrieved party to wait 
for the date for performance before commencing suit. 
Anticipatory nuisance. The right in equity to prevent 
a condition from becoming a nuisance by injunction or 
other order of the court. 
Anticipatory offense. A crime which has as its object a 
further crime, such as an attempt, a conspiracy, a solici
tation, all of which are crimes in themselves. 
Anticipatory repudiation. See Anticipatory breach of 
contract. 
Anticipatory search warrant. A warrant based upon 
an affidavit showing probable cause that at some future 
time, but not presently, certain evidence of crime will be 
located at specified place; such warrant is to be distin
guished from a premature search. 
Anti-deficiency legislation. Statutes which are enact
ed to provide revenue when a budget deficiency is cre
ated. 
Anti-dilution provision. A provision appearing in con
vertible securities to guarantee that the conversion priv
ilege is not affected by share reclassifications, share 
splits, share dividends, or similar transactions that may 
increase the number of outstanding shares without in
creasing the corporate capital. 
Anti-Dumping Act. See Dumping Act. 
Anti-dumping duty. Tariff, purpose of which is to pre
vent imports of goods for sale at a lower price than that 
charged in the country of origin. See Dumping Act. 
Antigraphus /rentigr�f�s/. In Roman law, an officer 
whose duty it was to take care of tax money. A comp
troller. 
Antigraphy. A copy or counterpart of a deed. 
Anti-lapse statute. Legislation enacted in most jurisdic
tions to provide for the testamentary passing of property 
to heirs and next of kin of the designated legatee or 
devisee if he dies before the testator, thus preventing a 
lapse of the legacy and the passing of such property 
through intestacy to the heirs and next of kin of the 
testator. 
Anti manifesto. A term used in international law to 
denote a proclamation or manifesto published by one of 
two belligerent powers, alleging reasons why the war is 
defensive on its part. 
Antinomia /rent�n6wmiy�/. In Roman law, a real or 
apparent contradiction or inconsistency in the laws. 
Conflicting laws or provisions of law; inconsistent or 
conflicting decisions or cases. 
Antinomy /rentin�miy/. A term used in logic and law to 
denote a real or apparent inconsistency or conflict be-

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ANTINOMY 
tween two authorities or propositions; same as antino
mia (q.v.). 
Antiqua custuma /rentaykw� k;}st(y)�m�/. In old Eng
lish law, an export duty on wool, woolf ells, and leather, 
imposed during the reign of Edw. I. It was so called by 
way of distinction from an increased duty on the same 
articles, payable by foreign merchants, which was im
posed at a later period of the same reign and was called 
"custuma nova." 
Antiquare /rent�kweriy/. In Roman law, to restore a 
former law or practice; to reject or vote against a new 
law; to prefer the old law. Those who voted against a 
proposed law wrote on their ballots the letter "A," the 
initial of antiquo, I am for the old law. 
Antiqua statuta / rentaykw� st�tyUwt�/. Also called 
"Vetera Statuta." English statutes from the time of 
Richard I to Edward III. See Nova statuta. 
Antiquum dominicum /rentaykw�m d�min�k�m/. In 
old English law, ancient demesne. 
Anti-Racketeering Act. Federal act prohibiting rob
bery, extortion, or other unlawful interference with in
terstate commerce. See Hobbs Act. 
Antithetarius /rent�e�teriy�s/. In old English law, a 
man who endeavors to discharge himself of the crime of 
which he is accused, by retorting the charge on the 
accuser. He differs from an approver in this: that the 
latter does not charge the accuser, but others. 
Antitrust acts. Federal and state statutes to protect 
trade and commerce from unlawful restraints, price 
discriminations, price fIxing, and monopolies. Most 
states have mini-antitrust acts patterned on the federal 
acts. The principal federal antitrust acts are: Sherman 
Act (1890); Clayton Act (1914); Federal Trade Commis
sion Act (1914); Robinson-Patman Act (1936). See Boy
cott; Combination in restraint of trade; Hart-Scott-Rodino 
Antitrust Improvement Act; Per se violations; Price-fixing; 
Restraint of trade; Rule (Rule of reason). 
Antitrust Civil Process Act. Federal statute permit
ting antitrust action by way of a petition in U.S. District 
Court for an order for enforcement of law. 15 U.S.C.A. 
§ 1314. 
Antitrust injury. Such injury, which must be estab
lished in order to have standing to bring antitrust claim 
under Clayton Act, is injury the antitrust laws were 
designed to prevent and that flows from that which 
makes a defendant's acts unlawful. The injury should 
reflect the anticompetitive effect either of the violation 
or of anticompetitive acts made possible by the violation. 
RJM Sales & Marketing, Inc. v. BanfI Products Corp., 
D.C.Minn., 546 F.Supp. 1368, 1379. 
Anxiety. An unpleasant affective state with the expec
tation but not the certainty of something happening; 
sometimes manifested as a sense of fear, poorly under
stood by the subject, which arises without justifIable 
cause; anxious state may have overtones of "impend
ing" danger rather than present danger. 
94 
Any. Some; one out of many; an indefInite number. 
One indiscriminately of whatever kind or quantity. 
Federal Deposit Ins. Corporation v. Winton, C.C.A.Tenn., 
131 F.2d 780, 782. One or some (indefInitely). SIegel v. 
SIegel, 135 N.J.Eq. 5, 37 A.2d 57, 58. "Any" does not 
necessarily mean only one person, but may have refer
ence to more than one or to many. Doherty v. King, 
Tex.Civ.App., 183 S.W.2d 1004, 1007. 
Word "any" has a diversity of meaning and may be 
employed to indicate "all" or "every" as well as "some" 
or "one" and its meaning in a given statute depends 
upon the context and the subject matter of the statute. 
Donohue v. Zoning Bd. of Appeals of Town of Norwalk, 
155 Conn. 550, 235 A.2d 643, 646, 647. 
It is often synonymous with "either", "every", or 
"all". Its generality may be restricted by the context; 
thus, the giving of a right to do some act "at any time" 
is commonly construed as meaning within a reasonable 
time; and the words "any other" following the enumer
ation of particular classes are to be read as "other such 
like," and include only others of like kind or character. 
A.O.C. Anno orbis conditi, the year of the creation of 
the world. 
A.P.A. Administrative Procedure Act. 
A pais. To the country; at issue. 
Apanage /rep�naj/. In old French law, a provision of 
lands or feudal superiorities assigned by the kings of 
France for the maintenance of their younger sons. An 
allowance assigned to a prince of the reigning house for 
his proper maintenance out of the public treasury. 
Apartment house. A building arranged in several 
suites of connecting rooms, each suite designed for inde
pendent housekeeping, but with certain mechanical con
veniences, such as heat, light, or elevator services, in 
common to all persons occupying the building. A build
ing containing multiple residential rental units. Some
times called a flat or flat house. 
Apatisatio /�pret�zeysh(iy)ow/. An agreement or com
pact. 
A.P .C. Alien Property Custodian. 
A.P.C.N. Anno post Christum natuTn, the year after the 
birth of Christ. 
Aperta brevia / �P;}rt� briyviy�/. Open, unsealed writs. 
Apertum factum / �p;}rt�m frekt�m/. An overt act. 
Apertura testamenti / rep�rtyur� test�mentay / . In the 
civil law, a form of proving a will, by the witnesses 
acknowledging before a magistrate their having sealed 
it. 
Apex. The summit or highest point of anything; the 
top; e.g., in mining law, "apex of a vein." See Larkin v. 
Upton, 144 U.S. 19, 12 S.Ct. 614, 36 L.Ed. 330. An 
"apex" is all that portion of a terminal edge of a mineral 
vein from which the vein has extension downward in the 
direction of the dip. Stewart Mining Co. v. Ontario 
Mining Co., 237 U.S. 350, 35 S.Ct. 610, 614, 59 L.Ed. 989. 
Or it is the juncture of two dipping limbs of a fIssure

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95 
vein. Jim Butler Tonopah Mining Co. v. West End 
Consol. Mining Co., 247 U.S. 450, 38 S.Ct. 574, 576, 62 
L.Ed. 1207. See Apex rule. 
Apex juris / eypeks jur�s/. The summit of the law; a 
legal subtlety; a nice or cunning point of law; close 
technicality; a rule of law carried to an extreme point, 
either of severity or refinement. A term used to denote 
a stricter application of the rules of law than is indi
cated by the phrase summum jus (q.v.). 
Apex rule. In mining law, the mineral laws of the 
United States give to the locator of a mining claim on 
the public domain the whole of every vein the apex of 
which lies within his surface exterior boundaries, or 
within perpendicular planes drawn downward indefi
nitely on the planes of those boundaries; and he may 
follow a vein which thus apexes within his boundaries, 
on its dip, although it may so far depart from the 
perpendicular in its course downward as to extend out
side the vertical side-lines of his location; but he may 
not go beyond his end-lines or vertical planes drawn 
downward therefrom. This is called the apex rule. 30 
U.S.C.A. § 26. 
Aphasia / �feyzh(iy)�/. Loss of the faculty or power of 
articulate speech. A condition in which the patient, 
while retaining intelligence and understanding and with 
the organs of speech unimpaired, is unable (in "motor 
aphasia") to utter articulate words, or unable to vocalize 
the particular word which is in his mind and which he 
wishes to use, or utters words different from those he 
believes himself to be speaking, or (in "sensory aphasia" 
or apraxia) is unable to understand spoken or written 
language. Sensory aphasia includes word blindness and 
word deafness, visual and auditory aphasia. Motor 
aphasia often includes agraphia, or the inability to write 
words of the desired meaning. The seat of the disease is 
in the brain, but it is not a form of insanity. 
Aphonia / �fowniy�/. Loss of the power of articulate 
speech in consequence of defective conditions of some of 
the vocal organs. It may be incomplete, in which case 
the patient can whisper. It is to be distinguished from 
congenital inability to speak, and from temporary loss of 
voice through extreme hoarseness or minor affections of 
the vocal cords, as also from aphasia, the latter being a 
disease of the brain without impairment of the organs of 
speech. 
Apices juris non sunt jura [jus] / eyp�siyz jur�s non 
s;}nt jur� (OJ:}s)/. Extremities, or mere subtleties of law 
are not rules of law [are not law]. Legal principles must 
not be carried to their extreme consequences, without 
regard for equity and good sense. See Apex juris. 
Apices litigandi / eyp�siyz lid�grenday /. Extremely fine 
points, or subtleties of litigation. Nearly equivalent to 
the modern phrase "sharp practice." "It is unconsciona
ble in a defendant to take advantage of the apices 
litigandi, to turn a plaintiff around and make him pay 
costs when his demand is just." Per Lord Mansfield, in 
3 Burr. 1243. 
A POSTERIORI 
A piratis aut latronibus capti liberi permanent / ey 
p�reyt�s ot l�trown�b�s kreptay lib�ray p:}rm�n�nt/ . 
Persons taken by pirates or robbers remain free. 
A piratis et latronibus capta dominum non mutant 
/ ey p�reyt�s et l�trown�b�s krept� d�miniy�m non 
myu.wtrentl. Capture by pirates and robbers does not 
change title. No right to booty vests in piratical cap
tors; no right can be derived from them by recaptors to 
the prejudice of the original owners. 
Apocha (also Apoca) /rep�k�/. Lat. In the civil law, a 
writing acknowledging payments; acquittance. It dif
fers from acceptilation in this: that acceptilation im
ports a complete discharge of the former obligation 
whether payment be made or not; apocha, discharge 
only upon payment being made. See Antapocha. 
Apochre oneratorire / rep�kiy on�reytoriyiy /. In old com
mercial law, bills of lading. 
Apocrisarius /rep�kriseriy�s/. In civil law, a messenger; 
an ambassador. 
In ecclesiastical law, one who answers for another. 
An officer whose duty was to carry to the emperor 
messages relating to ecclesiastical matters, and to take 
back his answer to the petitioners. An officer who gave 
advice on questions of ecclesiastical law. An ambassa
dor or legate of a pope or bishop. A messenger sent to 
transact ecclesiastical business and report to his superi
or; an officer who had charge of the treasury of a 
monastic edifice; an officer who took charge of opening 
and closing the doors. 
Apocrisarius cancellarius / rep�kriseriy�s kren-
s�leriy�s/. In the civil law, an officer who took charge 
of the royal seal and signed royal dispatches. Called, 
also, secretarius, consiliarius (from his giving advice); 
referendarius; a consiliis (from his acting as counsellor); 
a res pons is, or responsalis. 
Apograpbia /rep�grrefiy�/. In civil law, an examination 
and enumeration of things possessed; an inventory. 
Apostacy (also spelled Apostasy). The total renun
ciation of Christianity, by embracing either a false reli
gion or no religion at all. In old English law, this 
offense could take place only in such as had once pro
fessed the Christian religion. 4 Bl.Comm. 43. 
Apostata /rep�steyt�/. In civil and old English law, an 
apostate; a deserter from the faith; one who has re
nounced the Christian faith; apostate. 
Apostata capiendo / rep�steyt� krepiyendow / . An obso
lete English writ which issued against an apostate, or 
one who had violated the rules of his religious order. It 
was addressed to the sheriff, and commanded him to 
deliver the defendant into the custody of the abbot or 
prior. 
A posteriori / ey postiriyoray / . Lat. From the effect to 
the cause; from what comes after. A term used in logic 
to denote an argument founded· on experiment or obser
vation, or one which, taking ascertained facts as an 
effect, proceeds by synthesis and induction to demon
strate their cause.

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APOSTILLE 
Apostille, or appostille / ::IpOst::ll/. L. Fr. An addition; 
a marginal note or observation. A standard certifica
tion provided under the Hague Convention of 1961 for 
purpose of authenticating documents for use in foreign 
countries. 
Apostles. In English admiralty practice, a term bor
rowed from the civil law, denoting brief dismissory let
ters granted to a party who appeals from an inferior to a 
superior court, embodying a statement of the case and a 
declaration that the record will be transmitted. 
Apostoli /::Ipost::lhly/. In civil law, certificates of the 
inferior judge from whom a cause is removed, directed to 
the superior. See Apostles. 
Apostolus /::IpOst::l};)s/. A messenger; an ambassador, 
legate, or nuncio. 
Apotheca h�p::lOiyk::l/. In the civil law, a repository; a 
place of deposit, as of wine, oil, books, etc. 
Apparator /rep::lreyt::lr/. A furnisher or provider. For
merly the sheriff, in England, had charge of certain 
county affairs and disbursements, in which capacity he 
was called "apparator comitatus" (apparator for the 
county), and received therefor a considerable emolu
ment. 
Apparent. That which is obvious, evident, or manifest; 
what appears, or has been made manifest. That which 
appears to the eye or mind; open to view; plain; patent. 
In respect to facts involved in an appeal or writ of error, 
that which is stated in the record. See also Appear on 
face. 
Apparent agency. See Agency. 
Apparent authority. In the law of agency, such author
ity as the principal knowingly or negligently permits the 
agent to assume, or which he holds the agent out as 
possessing. Such authority as he appears to have by 
reason of the actual authority which he has. Such 
authority as a reasonably prudent man, using diligence 
and discretion, in view of the principal's conduct, would 
naturally suppose the agent to possess. Finnegan 
Constr. Co. v. Robino-Ladd Co., 354 A.2d 142, 144. Such 
authority as a principal intentionally or by want of 
ordinary care causes or allows third person to believe 
that agent possesses. Lewis v. Michigan Milers Mut. 
Ins. Co., 154 Conn. 660, 228 A.2d 803, 806. It includes 
the power to do whatever is usually done and necessary 
to be done in order to carry into effect the principal 
power conferred. 
The power to affect the legal relations of another 
person by transactions with third persons, professedly as 
agent for the other, arising from and in accordance with 
the other's manifestations to such third persons. Re
statement, Second, Agency § 8. 
Apparent danger. As used with reference to the doc
trine of self-defense in homicide, means such overt actu
al demonstration, by conduct and acts, of a design to 
take life or do some great personal injury, as would 
make the killing apparently necessary to self-preserva
tion. See Self defense. 
Apparent defects. Those defects in goods which can be 
discovered by simple inspection; see U.C.C. § 2--605. 
96 
Also, may refer to title defects which appear on the 
record. See Patent; Patent defect. 
Apparent easement. See Easement. 
Apparent heir. One whose right of inheritance is inde
feasible, provided he outlives the ancestor. To be con
trasted with presumptive heir whose claim to inheri
tance is defeated on the birth of an heir closer in 
relationship to the ancestor, though at a given point in 
time the heir presumptive is entitled to the inheritance. 
Apparent necessity. See Apparent danger. 
Apparitor /::Iprer::lt::lr/. In old English law, an officer or 
messenger employed to serve the process of the spiritual 
courts and summon offenders. 
In the civil law, an officer who waited upon a magis
trate or superior officer, and executed his commands. 
Apparlement /::Iparl(::I)m::lnt/. In old English law, resem
blance; likelihood; as apparlement of war. 
Apparura h�p::lrur::l/. In old English law, the apparura 
were furniture, implements, tackle, or apparel. 
App. Ct. Appellate Court. 
Appeal. Resort to a superior (i.e. appellate) court to 
review the decision of an inferior (i.e. trial) court or 
administrative agency. A complaint to a higher tribu
nal of an error or injustice committed by a lower tribu
nal, in which the error or injustice is sought to be 
corrected or reversed. Board of Ed. of Cleveland City 
School Dist. v. Cuyahoga County Bd. of Revision, 34 
Ohio St.2d 231, 298 N.E.2d 125, 128. There are two 
stages of appeal in the federal and many state court 
systems; to wit, appeal from trial court to intermediate 
appellate court and then to Supreme Court. There may 
also be several levels of appeal within an administrative 
agency; e.g. appeal from decision of Administrative Law 
Judge to Appeals Council in social security case. In 
addition, an appeal may be taken from an administra
tive agency to a trial court (e.g. from Appeals Council in 
social security case to U.S. district court). Also, an 
appeal may be as of right (e.g. from trial court to 
intermediate appellate court) or only at the discretion of 
the appellate court (e.g. by writ of certiorari to U.S. 
Supreme Court). Provision may also exist for joint or 
consolidated appeals (e.g. Fed.R.App.P. 3) and for cross 
appeals (where both parties to a judgment appeal there
from). 
Appeal was also the name formerly given to the proceed
ing in English law where a person, indicted of treason or 
felony, and arraigned for the same, confessed the fact 
before plea pleaded, and appealed, or accused others, his 
accomplices in the same crime, in order to obtain his 
pardon. In this case he was called an "approver" or 
"prover," and the party appealed or accused, the "appel
lee." 
See also Consolidated appeal; Courts of Appeals, U. S.; 
Cross appeal; Interlocutory appeal; Interlocutory Appeals 
Act; Limited appeal. 
Appealable order. A decree or order which is suffi
ciently final to be entitled to appellate review, as con-

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trasted with an interlocutory order which generally is 
not appealable until the case has been tried and judg
ment entered, e.g. a denial of motion for summary 
judgment is not appealable but the allowance of such 
motion is a final judgment and hence appealable. 
Fed.R. Civil P. 56. 
Appeal bond. The court in its discretion may require 
the appellant to file a bond or provide other security to 
ensure payment of costs on appeal. See e.g., Fed.R. 
App.P. 7. 
Appeal in forma pauperis / ;}piyl in form;} pop;}r;}s/. A 
privilege given indigent person to prosecute an appeal, 
otherwise and independently allowable, without pay
ment of fees and costs incident to such prosecution. See 
e.g. Fed.R.App.P. 24. 
Appeal record. See Record (Record on appeal). 
Appeals council. Body to which appeal is taken from 
finding and ruling of administrative law judge in social 
security matters. 42 U.S.C.A. § 405(b). 
Appeals courts. See Appellate court; Court of Appeals, 
U.S.; Court of Customs and Patent Appeals; Court of 
Mil itary Appeals; Supreme court. 
Appear. To be properly before a court; as a fact or 
matter of which it can take notice. To be in evidence; 
to be proved. Coming into court by a party to a suit, 
whether plaintiff or defendant. See Appearance. 
Appear on face. That which is clear and apparent from 
a reading of the document. A defect in process or venue 
which can be gleaned from examining the pleadings and 
which does not require going outside the record. See 
also Apparent; 
Appearance. A coming into court as party to a suit, 
either in person or by attorney, whether as plaintiff or 
defendant. The formal proceeding by which a defen
dant submits himself to the jurisdiction of the court. 
The voluntary submission to a court's jurisdiction. 
In civil actions the parties do not normally actually 
appear in person, but rather through their attorneys 
(who enter their appearance by filing written pleadings, 
or a formal written entry of appearance). Also, at many 
stages of criminal proceedings, particularly involving 
minor offenses, the defendant's attorney appears on his 
behalf. See e.g., Fed.R.Crim.P. 43. 
An appearance may be either general or special ; the 
former is a simple and unqualified or unrestricted sub
mission to the jurisdiction of the court, the latter a 
submission to the jurisdiction for some specific purpose 
only, not for all the purposes of the suit. A special 
appearance is for the purpose of testing or objecting to 
the sufficiency of service or the jurisdiction of the court 
over defendant without submitting to such jurisdiction; 
a general appearance is made where the defendant 
waives defects of service and submits to the jurisdiction 
of court. Insurance Co. of North America v. Kunin, 175 
Neb. 260, 121 N.W.2d 372, 375, 376. 
See also General appearance; Notice to appear. 
APPELLATE COURT 
Appearance by attorney. An act of an attorney in prose
cuting an action on behalf of his client. Document filed 
in court in which attorney sets forth fact that he is 
representing a party to the action. 
Appearance docket. A docket kept by the clerk of the 
court in which appearances are entered, containing also 
a brief abstract of all the proceedings in the cause. 
Common law classifications. At common law an ap
pearance could be either compulsory or voluntary, the 
former where it was compelled by process served on the 
party, the latter where it was entered by his own will or 
consent, without the service of process, though process 
may be outstanding. Also, optional when entered by a 
person who intervened in the action to protect his own 
interests, though not joined as a party; conditional, 
when coupled with conditions as to its becoming or being 
taken as a general appearance; gratis, when made by a 
party to the action, but before the service of any process 
or legal notice to appear; de bene esse, when made 
provisionally or to remain good only upon a future 
contingency; or when designed to permit a party to a 
proceeding to refuse to submit his person to the jurisdic
tion of the court unless it was finally determined that he 
had forever waived that right; subsequent, when made 
by a defendant after an appearance had already been 
entered for him · by the plaintiff; corporal, when the 
person was physically present in court. 
Initial appearance. A court proceeding for a defendant 
charged with a felony, during which the judge advises 
the defendant of the charges against him and of his 
rights, decides upon bail and/or other conditions of 
release, and sets the date for a preliminary hearing. 
See e.g. Fed.R.Crim.P. 5. 
Notice of appearance. A notice given by defendant to a 
plaintiff that he appears in the action in person or by 
attorney. 
Appearance doctrine. This doctrine is a special rule 
designed to afford a right of self-defense to defendant 
based upon which "appears" to the defendant to be a 
situation which justifies use of force in self-defense. 
State v. Ferguson, Mo.App., 581 S.W.2d 132, 136. See 
Self-defense. 
Appellant. The party who takes an appeal from one 
court or jurisdiction to another. Used broadly or non
technically, the term includes one who sues out a writ of 
error. 
Appellate. Pertaining to or having cognizance of ap
peals and other proceedings for the judicial review of 
adjudications. The term has a general meaning, and it 
has a specific meaning indicating the distinction be
tween original jurisdiction and appellate jurisdiction. 
Woodruff v. Bell, 143 Kan. 11 0, 53 P.2d 498, 499. 
Appellate court. A court having jurisdiction of appeal 
and review; a court to which causes are removable by 
appeal, certiorari, error or report. A reviewing court, 
and, except in special cases where original jurisdiction is 
conferred, not a "trial court" or court of first instance.

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APPELLATE COURT 
See e.g. Court of Appeals; Court of Customs and Patent 
Appeals; Court of Military Appeals; Supreme court. 
Appellate division. An intermediate appellate court for 
hearing civil appeals. See e.g., Mass.G.L. c. 231, § 108. 
Also, in Mass., a three judge panel to consider appeals of 
sentences for felonies. Mass.G.L. c. 278, §§ 28A, 28B. 
In New York, an intermediate appellate court which 
also has the power to make rules and regulations gov
erning the administration of the courts. Seidenberg v. 
County Court of Rockland County, 34 N.Y.2d 499, 358 
N.Y.S.2d 416, 315 N.E.2d 475. See N.Y. Judiciary Law, 
Article 4, § 70-109. In New Jersey, most civil appeals 
are to the Appellate Division of the Superior Court. 
Appellate jurisdiction. The power vested in an appel
late court to review and revise the judicial action of an 
inferior court, evidenced by an appealable order or an 
appealable judgment rendered by such court. Trengen 
v .. Mongeon, N.D., 200 N.W.2d 50, 53. The power and 
authority to take cognizance of a cause and proceed to 
its determination, not in its initial stages (i.e. original 
jurisdiction) but only after it has been finally decided by 
an inferior court, i.e., the power of review and determi
nation on appeal, writ of error, certiorari, or other 
similar process. Jurisdiction on appeal; jurisdiction to 
revise or correct the proceedings in a cause already 
instituted and acted upon by an inferior court, or by a 
tribunal having the attributes of a court. Limits of 
appellate jurisdiction are governed by statutes (e.g. 28 
U.S.C.A. § 1291 et seq.) or constitutions. 
Appellate review. Examination of lower court proceed
ing by an appellate court brought about by appeal, bill 
of exceptions, report or certiorari. Such may also em
brace review of administrative board's decision by an 
inferior court; e.g. review by federal district court of 
social security administration decision. 
Appellate rules. Rules governing procedure in taking 
appeals and in practicing before appellate courts; e.g. 
Federal Rules of Appellate Procedure; Massachusetts 
Rules of Appellate Procedure. See Federal Rules of 
Appel late Procedure. 
Appellatio /Ci�p:)leysh(iy)ow/. Lat. An appeal. 
Appellator / rep:)leyt:)r / . An old law term having the 
same meaning as "appellant" (q. v.). 
In the civil law, the term was applied to the judge ad 
quem, or to whom an appeal was taken. 
Appellee. The party in a cause against whom an appeal 
is taken; that is, the party who has an interest adverse 
to setting aside or reversing the judgment. Sometimes 
also called the "respondent." It should be noted that a 
party's status as appellant or appellee does not necessar
ily bear any relation to his status as plaintiff or defen
dant in the lower court. 
Appello /repelow/. Lat. In the civil law, "I appeal." 
The form of making an appeal apud acta. 
Appellor /repel:)r/. In old English law, a criminal who 
accused his accomplices, or who challenged a jury. See 
Approver. 
98 
Append. To add or attach. See Appendix. 
Appendage. Something added as an accessory to or the 
subordinate part of another thing. See Appendant; Ap
pendix. 
Appendant. A thing annexed to or belonging to another 
thing and passing with it. Something added or at
tached. 
At common law, a thing of inheritance belonging to 
another inheritance which is more worthy; as an advow
son, common, etc., which may be appendant to a manor, 
common of fishing to a freehold, a seat in a church to a 
house, etc. It differs from appurtenance, in that appen
dant must ever be by prescription, i.e., a personal usage 
for a considerable time, while an appurtenance may be 
created at this day; for if a grant be made to a man and 
his heirs, of common in such a moor for his beasts levant 
or couchant upon his manor, the commons are appurte
nant to the manor, and the grant will pass them. 
See also Appendix; Appurtenance; Appurtenant. 
Appenditia /rep:)ndish(iy):)/. The appendages or ap
purtenances of an estate or house, dwelling, etc.; thus, 
penthouses are the appenditia domus. 
Appendix. Supplementary materials added to appellate 
brief; e.g. record on appeal. In federal appellate proce
dure, the appellant is required to file an appendix to the 
briefs which shall contain the following: (1) the relevant 
portions of the pleadings, charge, findings or opinion; (2) 
the judgment, order or decision in question; and (3) any 
other parts of the record to which the parties wish to 
direct the particular attention of the court. Fed.R. 
App.P. 30. 
Appensura /repens(y)ur:)/. Payment of money by weight 
instead of by count. 
Appertain. To belong to; to have relation to; to be 
appurtenant to. See Appurtenance; Appurtenant. 
Appertaining. Connected with in use or occupancy. 
Applicable. Fit, suitable, pertinent, related to, or appro
priate; capable of being applied. 
Applicable local law. Term used to determine the 
persons who come within the term heirs and is the law 
which would be used to ascertain the heirs of the desig
nated ancestor if he had owned the property and had 
died intestate. Restatement of Law of Property, § 305, 
Comment e. 
Applicant. An applicant, as for letters of administra
tion, is one who is entitled thereto, and who files a 
petition asking that letters be granted. For purposes of 
letters of credit, the customer in the credit transaction. 
Synonymous also with "account party." 
Applicare /repl:)keriy/. Lat. In old English law, to 
fasten to; to moor (a vessel). Anciently rendered, "to 
apply." 
Applicatio est vita regulre /repl:)keysh(iy)ow est vayt:) 
regy:)liy /. Application is the life of a rule. 
Application. A putting to, placing before, preferring a 
request or petition to or before a person. The act of

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99 
making a request for something. A petition. The use 
or disposition made of a thing. A bringing together, in 
order to ascertain some relation or establish some con
nection; as the application of a rule or principle to a 
case or fact. An appeal or petition, especially as written 
or presented; a putting to, placing before; preferring a' 
request or petition to or before a person; the act of 
making a request for something. Sparacino v. Ferona, 9 
Ill.App.2d 422, 133 N.E.2d 753, 755. See also, Apply; 
Motion; Petition. 
Insurance. The preliminary request, declaration, or 
statement made by a party applying for an insurance 
policy, such as one on his life, or against fire. 
Payments. Appropriation of a payment to some particu
lar debt; or the determination to which of several de
mands a general payment made by a debtor to his 
creditor shall be applied. 
Purchase money. The disposition made of the funds 
received by a trustee on a sale of real estate held under 
the trust. 
Application of rules. Refers to area of practice gov
erned by rules of procedure and not left to common law 
or statutory law. 
Apply. To make a formal request or petition, usually in 
writing, to a court, officer, board, or company, for the 
granting of some favor, or of some rule or order, which 
is within his or their power or discretion. For example, 
to apply for an injunction, for a pardon, for a policy of 
insurance, or for a receiver. See Application; Petition. 
To use or employ for a particular purpose; to appro
priate and devote to a particular use, object, demand, or 
subject-matter. Thus, to apply payments to the reduc
tion of interest. See Appropriate. 
To put, use, or refer, as suitable or relative; to co-ordi
nate language with a particular subject-matter; as to 
apply the words of a statute to a particular state of facts. 
The word "apply" is used in connection with statutes 
in two senses. When construing a statute, in describing 
the class of persons, things, or functions which are 
within its scope; as that the statute does not "apply" to 
transactions in interstate commerce. When discussing 
the use made of a statute, in referring to the process by 
which the statute is made operative; as where the jury 
is told to "apply" the statute of limitation if they find 
that the cause of action arose before a given date. 
Appoint. To designate, choose, select, assign, ordain, 
prescribe, constitute, or nominate. To allot or set apart. 
To assign authority to a particular use, task, position, or 
office. 
Term is used where exclusive power and authority is 
given to one person, officer, or body to name persons to 
hold certain offices. It is usually distinguished from 
"elect," meaning to choose by a vote of the qualified 
voters of the city; though this distinction is not invari
ably observed. 
See also Appointment. 
APPORTIONMENT 
Appointee. A person who is appointed or selected for a 
particular purpose; as the appointee under a power of 
appointment is the person who is to receive the benefit 
of the power. 
Appointment. The designation of a person, by the per
son or persons having authority therefor, to discharge 
the duties of some office or trust. In re Nicholson's 
Estate, 104 Colo. 561, 93 P.2d 880, 884. See Ill usory 
appointment; Power of appOintment. 
The exercise of a right to designate the person or 
persons who are to take the use of real estate. The act 
of a person in directing the disposition of property, by 
limiting a use, or by substituting a new use for a former 
one, in pursuance of a power granted to him for that 
purpose by a preceding deed, called a "power of appoint
ment"; also the deed or other instrument by which he 
so conveys. Where the power embraces several permit
ted objects, and the appointment is made to one or more 
of them, excluding others, it is called "exclusive." 
Appointment may signify an appropriation of money 
to a specific purpose. It may also mean the arranging of 
a meeting. 
Office or public function. The selection or designation 
of a person, by the person or persons having authority 
therefor, to fill an office or public function and discharge 
the duties of the same. The term "appointment" is to 
be distinguished from "election ." "Election" to office 
usually refers to vote of people, whereas "appointment" 
relates to designation by some individual or group. 
Board of Education of Boyle County v. McChesney, 235 
Ky. 692, 32 S.W.2d 26, 27. 
Appointment, power of. See Power of appointment. 
Appointor. The person who appoints, or executes a 
power of appointment; as appointee is the person to 
whom or in whose favor an appointment is made. One 
authorized by the donor, under the statute of uses, to 
execute a power. 
Apport. L. Fr. In old English law, tax; tallage; tribute; 
imposition; payment; charge; expenses. 
Apportion. To divide and distribute proportionally. 
Apportionment / �p6rsh:mm:mt/. The process by which 
legislative seats are distributed among units entitled to 
representation. Determination of the number of repre
sentatives which a State, county, or other subdivision 
may send to a legislative body. The U.S. Constitution 
provides for a census every ten years, on the basis of 
which Congress apportions representatives according to 
population; but each State must have at least one 
representative. "Districting" is the establishment of the 
precise geographical boundaries of each such unit or 
constituency. Seaman v. Fedourich, 16 N.Y.2d 94, 262 
N.Y.S.2d 444, 209 N.E.2d 778, 779. Apportionment by 
state statute which denies the rule of one-man, one-vote 
is violative of equal protection of laws. Baker v. Carr, 
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. See also 
Legislative apportionment; Reapportionment. 
The allocation of a charge or cost such as real estate 
taxes between two parties, often in the same ratio as the

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APPORTIONMENT 
respective times that the parties are in possession or 
ownership of property during the fiscal period for which 
the charge is made or assessed. 
Contracts. The allowance, in case of a severable con
tract, partially performed, of a part of the entire consid
eration proportioned to the degree in which the contract 
was carried out. 
Corporate shares. The pro tanto division among the 
subscribers of the shares allowed to be issued by th,e 
charter, where more than the limited number have been 
subscribed for. 
Estate taxes. Unless the will otherwise provides, taxes 
shall be apportioned among all persons interested in the 
estate. The apportionment is to be made in the propor
tion that the value of the interest of each person inter
ested in the estate bears to the total value of the 
interests of all persons interested in the estate. The 
values used in determining the tax are to be used for 
that purpose. If the decedent's will directs a method of 
apportionment of tax different from the method de
scribed in the Probate Code, the method described in the 
will controls. Uniform Probate Code, § 3-916(b). 
Incumbrances. Where several persons are interested in 
an estate, apportionment, as between them, is the deter
mination of the respective amounts which they shall 
contribute towards the removal of the incumbrance. 
Liability. Legal responsibility of parties to a transac
tion or tort may be distributed or apportioned among 
them by statute or by agreement. See Comparative 
negligence; Contribution. 
Rent. The allotment of shares in a rent to each of 
several parties owning it. The determination of the 
amount of rent to be paid when the tenancy is terminat
ed at some period other than one of the regular intervals 
for the payment of rent. 
Representatives. The determination upon each decenni
al census of the number of representatives in congress 
which each state shall elect, the calculation being based 
upon the population. See U.S .Const., Art. 1, § 2; 
Amend. 14, § 2. 
Taxes. The apportionment of a tax consists in a selec
tion of the subjects to be taxed, and in laying down the 
rule by which to measure the contribution which each of 
these subjects shall make to the tax. 
The assignment of the business income of a multistate 
corporation to specific states for income taxation. 
Usually, the apportionment procedure accounts for the 
property, payroll, and sales activity levels of the various 
states, and a proportionate assignment of the entity's 
total income is made thereby, using a three-factor appor
tionment formula. These activities indicate the com
mercial domicile of the corporation, relative to that 
income. Some states exclude nonbusiness income from 
the apportionment procedure; they allocate nonbusiness 
income to the states where the nonbusiness assets are 
located. 
100 
Apportionment clause. Insurance policy clause which 
distributes insurance in proportion to the total coverage. 
Apports en nature /�p6rts on n�tyUr/. In French law, 
that which a partner brings into the partnership other 
than cash; for instance, securities, realty or personalty, 
cattle, stock, or even his personal ability and knowledge. 
Apportwn /�p6rt�m/. In old English law, the revenue, 
profit, or emolument which a thing brings to the owner. 
Commonly applied to a corody or pension. 
Apposer /�p6wz�r/. In old English law, an officer in the 
exchequer, clothed with the duty of examining the sher
iffs in respect of their accounts. Usually called the 
"foreign apposer." The office is now abolished. 
Appostille, or apostille /�p6st�l/. In French law, an 
addition or annotation made in the margin of a writing. 
Appraisal. A valuation or an estimation of value of 
property by disinterested persons of suitable qualifica
tions. The process of ascertaining a value of an asset or 
liability that involves expert opinion rather than explic
it market transactions. See also Appraise. 
In corporate law, a limited statutory right granted to 
minority shareholders who object to certain fundamen
tal transactions such as mergers. In an appraisal pro
ceeding a court determines the appraised value of their 
shares and the corporation pays such appraised value to 
the shareholder in cash. The Revised Model Business 
Corporation Act uses the term "dissenters' rights to 
obtain payment for their shares" to describe this right. 
An appraisal right exists only to the extent specifically 
provided by statute. See Appraisal remedy. 
Appraisal clause. Clause in insurance policy providing 
that the insurer has the right to demand an appraisal of 
the loss or damage. 
Appraisal remedy. The dissenting shareholder's ap
praisal remedy is essentially a statutory creation to 
enable shareholders who object to certain extraordinary 
matters to dissent and to require the corporation to buy 
their shares at the value immediately prior to the ap
proval of such matter and thus to withdraw from the 
corporation. In different jurisdictions, the appraisal 
remedy often applies to sales of substantially all corpo
rate assets other than in the regular course of business, 
mergers, and consolidations, more rarely to certain 
amendments of the articles of incorporation or miscella
neous matters, but usually not to dissolution. The ap
praisal remedy is often limited to shareholders of record 
entitled to vote on the matter. 
Appraisal rights. See Appraisal remedy. 
Appraise. To fix or set a price or value upon; to fix and 
state the true value of a thing, and, usually, in writing. 
To value property at what it is worth. To "appraise" 
money means to count. See also Appraisal. 
Appraisement. A just and true valuation of property. 
A valuation set upon property under judicial or legisla
tive authority. A valuation or estimation of the value of 
property. See also Appraisal.

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101 
Appraiser. A person selected or appointed by competent 
authority or interested party to make an appraisement; 
to ascertain and state the true value of goods or real 
estate. Frequently appointed in probate and condemna
tion proceedings; also used by condemnation authori
ties, banks and real estate companies to ascertain mar
ket value of real property. 
Appreciable. Capable of being estimated, weighed, 
judged of, or recognized by the mind. Capable of being 
perceived or recognized by the senses. Perceptible but 
not a synonym of substantiaL 
Appreciate. To estimate justly; to set a price or value 
on. When used with reference to the nature and effect 
of an act, "appreciate" may be synonymous with "know" 
or "understand" or "realize." 
Appreciation in value. Increase in the market value of 
an asset (e.g., real estate) over its value at some earlier 
time. May be due from inflation and/or increased mar
ket demand for asset. 
Apprehend. To take hold of, whether with the mind (as 
to conceive, believe, fear, dread, understand, be con
scious or sensible oD, or actually and bodily (as to seize 
or arrest a person). See Arrest. 
Apprehensio / repr�hensh(iy)ow /. Lat. In the civil and 
old English law, a taking hold of a person or thing; 
apprehension; the seizure or capture of a person. 
One of the varieties or subordinate forms of occupatio, 
or the mode of acquiring title to things not belonging to 
any one. 
Apprehension. The seizure, taking, or arrest of a per
son on a criminal charge. See Arrest. 
Civil law. A physical or corporal act (corpus), on the 
part of one who intends to acquire possession of a thing, 
by which he brings himself into such a relation to the 
thing that he may subject it to his exclusive control; or 
by which he obtains the physical ability to exercise his 
power over the thing whenever he pleases. One of the 
requisites to the acquisition of judicial possession, and 
by which, when accompanied by intention, (animus) 
possession is acquired. 
Apprendre. A fee or profit taken or received. 
Apprentice en la ley / �prEmt�s on l� ley /. An ancient 
name for students at law, and afterwards applied to 
counsellors, apprentici ad barras, from which comes the 
more modern word "barrister." In some of the ancient 
law-writers the terms apprentice and barrister are syn
onymous. 
Apprenticeship. An apprentice is a person who agrees 
to work for an employer for a specified time for the 
purpose of learning the craft, trade or profession in 
which the employer agrees to instruct him. In a more 
popular sense the term is used to convey the idea of a 
learner in any field of employment or business. The 
requirements of an apprenticeship contract both as to 
contents and manner of execution are prescribed by 
statute in a number of states. See also Articles of 
apprenticeship. 
APPROPRIATION 
The term during which an apprentice is to serve; the 
status of an apprentice; the relation subsisting between 
an apprentice and his master. 
Apprenticius ad legem / reprentishiy�s red liyj�m/. An 
apprentice to the law; a law student; a counsellor below 
the degree of serjeant. See Apprentice en la ley. 
Approach. To come nearer in place or time. 
An access or a way, passage, or avenue by which a 
place may be approached. Clutts v. Jefferson County 
Bd. of Zoning Adjustment, 282 Ala. 204, 210 So.2d 679, 
684. 
Approaches. A way, passage, street, or avenue by 
which a place or building can be approached; an access. 
Approach, right of. In international maritime law, the 
right of a ship of war, upon the high sea, to draw near to 
another vessel for the purpose of ascertaining the na
tionality of the latter. The Marianna Flora, 24 U.S. 1, 
11 Wheat. 1, 6 L.Ed. 405. At present the right of 
approach has no existence apart from the right of visit. 
Approbation /repr�beysh�n/. Denotes approval and 
generally includes commendation. Application of N. Y. 
Soul Clinic, 208 Misc. 612, 144 N.Y.S.2d 543, 545. 
Appropriate. To make a thing one's own; to make a 
thing the subject of property; to exercise dominion over 
an object to the extent, and for the purpose, of making it 
subserve one's own proper use or pleasure. To prescribe 
a particular use for particular moneys; to designate or 
destine a fund or property for a distinct use, or for the 
payment of a particular demand. Also used in the sense 
of distribute. In this sense it may denote the act of an 
executor or administrator who distributes the estate of 
his decedent among the legatees, heirs, or others enti
tled, in pursuance of his duties and according to their 
respective rights. See Appropriation; Expropriation. 
Appropriated surplus. In accounting, portion of sur
plus set aside for specific purpose other than for existing 
liability. 
Appropriation. The act of appropriating or setting 
apart; prescribing the destination of a thing; designat
ing the use or application of a fund. McKenzie Const. 
Co. v. City of San Antonio, Tex.Civ.App., 50 S.W.2d 349, 
352. In tort law, the act of making a thing one's own or 
exercising or making use of an object to subserve one's 
own interest. When the act is wrongful, a tort is com
mitted. 
In governmental accounting, an expenditure autho
rized for a specified amount, purpose, and time. 
See also Appropriate; Misappropriation. 
Appropriation of land. The act of selecting, devoting, or 
setting apart land for a particular use or purpose, as 
where land is appropriated for public buildings, military 
reservations, or other public uses. Taking of private 
property for public use in the exercise of the power of 
eminent domain. In this sense it may refer merely to 
physical occupation and contemplate payment prior 
thereto, in contra-distinction to "taking," referring to a 
legal taking and presupposing payment after damages

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APPROPRIATION 
are due. See Condemnation; Eminent domain; Expropria
tion. 
Appropriation of payments. The application of a pay
ment to the discharge of a particular debt. Thus, if a 
creditor has two distinct debts due to him from his 
debtor, and the latter makes a general payment on 
account, without specifying at the time to which debt he 
intends the payment to apply, it is optional for the 
creditor to appropriate (apply) the payment to either of 
the two debts he pleases. 
Appropriation of water. An appropriation of water flow
ing on the public domain consists in the capture, im
pounding, or diversion of it from its natural course or 
channel and its actual application to some beneficial use 
private or personal to the appropriator, to the entire 
exclusion (or exclusion to the extent of the water appro
priated) of all other persons. To constitute a valid 
appropriation, there must be an intent to apply the 
water to some beneficial use existing at the time or 
contemplated in the future, a diversion from the natural 
channel by means of a ditch or canal, or some other 
open physical act of taking possession of the water, and 
an actual application of it within a reasonable time to 
some useful or beneficial purpose. In re Manse Spring 
and Its Tributaries, Nye County, 60 Nev. 262, 108 P.2d 
311, 314; State of Neb. v. State of Wyo., 325 U.S. 589, 65 
S.Ct. 1332, 1349, 89 L.Ed. 1815. It follows water to its 
original source whether through surface or subterrane
an streams or through percolation, Justesen v. Olsen, 86 
Utah 158, 40 P.2d 802, 809; and entitles appropriator to 
continuing right to use water to extent of appropriation, 
but not beyond that reasonably required and actually 
used. State of Arizona v. State of California, Ariz. & 
Cal., 298 U.S. 558, 56 S.Ct. 848, 852, 80 L.Ed. 1331. 
Public law. The act by which the legislative depart
ment of government designates a particular fund, or sets 
apart a specified portion of the public revenue or of the 
money in the public treasury, to be applied to some 
general object of governmental expenditure, or to some 
individual purchase or expense. Authority given by 
legislature to proper officers to apply distinctly specified 
sum from designated fund out of treasury in given year 
for specified object or demand against state. State ex 
reI. Murray v. Carter, 167 Oklo 473, 30 P.2d 700, 702. 
The legislative designation of a certain amount of 
money as being set apart, allotted, or assigned for a 
specific purpose. Purpose of a general appropriation bill 
is to fund programs that have been separately autho
rized by other legislation. Colorado General Assembly 
V. Lamm, Colo., 704 P.2d 1371, 1382. A specific appro
priation is an act of the legislature by which a named 
sum of money has been set apart in the treasury, and 
devoted to the payment of a particular demand. 
Appropriation hill. A measure before a legislative body 
authorizing the expenditure of public moneys and stipu
lating the amount, manner, and purpose of the various 
items of expenditure. Appropriation bills in Congress 
must originate in the House. U.S .Const. Art. I, Sec. 7. 
See also Appropriation (Public law). 
102 
Appropriator. One who makes an appropriation; as, an 
appropriator of water. 
Approval. The act of confirming, ratifying, assenting, 
sanctioning, or consenting to some act or thing done by 
another. "Approval" implies knowledge and exercise of 
discretion after knowledge. McCarten V. Sanderson, 111 
Mont. 407, 109 P.2d 1108, 111 2. The act of a judge or 
magistrate in sanctioning and accepting as satisfactory a 
bond, security, or other instrument which is required by 
law to pass his inspection and receive his approbation 
before it becomes operative. See Affirm; Approve; As
sent; Condonation; Confirmation; Connivance; Consent; 
Ratification. For sale on approval, see Sale. 
Approval sales. A buyer may, by agreement, accept 
goods on approval, and title does not pass until he has 
indicated his approval. Approval is a condition prece
dent to passing of title and risk. U.C.C. § 2-326. 
Approve. To be satisfied with; to confirm, ratify, sanc
tion, or consent to some act or thing done by another. 
To sanction officially; to ratify; to confirm; to pro
nounce good; think or judge well of; admit the proprie
ty or excellence of; be pleased with. Distinguishable 
from "authorize," meaning to permit a thing to be done 
in future. To take to one's proper and separate use. To 
improve; to enhance the value or profits of anything. 
To inclose and cultivate common or waste land. See 
also Approval; Confirmation; Ratification. 
Approved indorsed notes. Notes indorsed by another 
person than the maker, for additional security, the in
dorser being satisfactory to the payee. See Accommoda
tion paper; Accommodation party. 
Approved list. See, Legal list. 
Approvement. In English law, the improvement or 
partial enclosure of a common. The profits arising from 
the improvement of land approved. Now requires con
sent of the government by Law of Property Act, 1925, 
§ 194. 
In old English law, a practice of criminal prosecutions 
by which a person accused of treason or felony was 
permitted to exonerate himself by accusing others and 
escaping prosecution himself. The custom existed only 
in capital cases, and consisted in the accused, called 
"approver", being arraigned and permitted to confess 
before plea and appeal or accuse another as his accom
plice of the same crime in order to obtain his pardon. 
See Approver. 
Approver. L. Fr. To approve or prove; to vouch. 
In old English law, an accomplice in crime who ac
cused others of the same offense, and was admitted as a 
witness at the discretion of the court to give evidence 
against his companions in guilt. He was vulgarly called 
"King's Evidence." One who confessed himself guilty of 
felony and accused others of the same crime to save 
himself from punishment. If he failed to convict those 
he accused he was at once hung. See also Antithetarius. 
At common law, one who brought formal charges 
against and privately prosecuted one's accomplices. Oli
ver V. State, 454 A.2d 856, 863, 53 Md.App. 490.

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103 
In old English law, certain men sent into the several 
counties to increase the farms (rents) of hundreds and 
wapentakes, which formerly were let at a certain value 
to the sheriff. See Hundred; Wapentake. 
Approximate. Used in the sense of an estimate merely, 
meaning more or less, but about and near the amount, 
quantity, or distance specified. Near to; about; a little 
more or less; close. "Approximately" is very nearly 
synonymous with "proximately", meaning very nearly, 
but not absolutely. 
Approximation. Equitable doctrine by which precise 
terms of charitable trust can be varied under certain 
circumstances. Applicable to charitable trusts and em
ployed only where on failure of trust the court finds a 
general charitable intent. Under this doctrine, the gen
eral intent of the donor is carried out as nearly as may 
be even if the particular method pointed out by him 
cannot be followed. Harris v. Attorney General, 31 
Conn.Sup. 93, 324 A.2d 279, 283. See Cy-Pres. 
Appruare /c�pruweriy I. To take to one's use or profit. 
Appurtenance I �p�rt:m�ns/. That which belongs to 
something else; an adjunct; an appendage. Something 
annexed to another thing more worthy as principal, and 
which passes as incident to it, as a right of way or other 
easement to land; an outhouse, barn, garden, or or
chard, to a house or messuage. Joplin Waterworks Co. 
v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1076. 
An article adapted to the use of the property to which it 
is connected, and which was intended to be a permanent 
accession to the freehold. A thing is deemed to be 
incidental or appurtenant to land when it is by right 
used with the land for its benefit, as in the case of a 
way, or watercourse, or of a passage for light, air, or 
heat from or across the land of another. See also 
Appendant. 
Appurtenant. Belonging to; accessory or incident to; 
adjunct, appended, or annexed to; answering to ac
cessorium in the civil law. Employed in leases for the 
purpose of including any easements or servitudes used 
or enjoyed with the demised premises. A thing is "ap
purtenant" to something else when it stands in relation 
of an incident to a principal and is necessarily connected 
with the use and enjoyment of the latter. A thing is 
deemed to be incidental or appurtenant to land when it 
is by right used with the land for its benefit, as in the 
case of a way, or water-course, or of a passage for light, 
air, or heat from or across the land of another. See also 
Easement. 
APR. See Annual percentage rate. 
A.P.R.C. Anno post Romam conditam, year after the 
foundation of Roman. 
A prendre la prond�r/. L. Fr. To take; to seize. Bref 
a prendre la terre, a writ to take the land. A right to 
take something out of the soil of another is a profit a 
prendre, or a right coupled with a profit. Distinguished 
from an easement. Sometimes written as one word, 
apprendre, apprender. See Profit (Profit a prendre). 
AQUAGIUM 
A priori ley prayoray I. Lat. From the cause to the 
effect; from what goes before. A term used in logic to 
denote an argument founded on analogy, or abstract 
considerations, or one which, positing a general princi
ple or admitted truth as a cause, proceeds to deduce 
from it the effects which must necessarily follow. 
A provisione viri I ey pr�vizhiyowniy vihray I. By the 
provision of man. 
Apt. Fit; suitable; appropriate. 
Apta viro lrept� virow/. Fit for a husband; marriagea
ble; a woman who has reached marriageable years. 
Apt words. Words proper to produce the legal effect for 
which they are intended; sound technical phrases. 
Apud acta lrep�d rekt�/. Among the acts; among the 
recorded proceedings. In the civil law, this phrase is 
applied to appeals taken orally, in the presence of the 
judge, at the time of judgment or sentence. Credit Co., 
Ltd., v. Arkansas Cent. Ry. Co., 128 U.S. 258, 9 S.Ct. 107, 
108, 32 L.Ed. 448. 
Aqua lrekw�/. In the civil and old English law, water; 
sometimes a stream or water-course. 
Aqua restiva lrekw� iystiv�/. In Roman law, summer 
water; water that was used in summer only. 
Aqua cedit solo lrekw� siyd�t sowlow/. Water follows 
the land. A sale of land will pass the water which 
covers it. 2 Bl.Comm. 18. 
Aqua currens lrekw� k�hrenz/. Running water. 
Aqua currit et debet currere, ut currere solebat 
lrekw� k�hr�t et deb�t k�hr�riy, ;}t k�hr�riy sowliyb�tI. 
Water runs, and ought to run, as it has used to run. A 
running stream should be left to flow in its natural 
channel, without alteration or diversion; that water is 
the common and equal property of every one through 
whose domain it flows. 
Aqua dulcis, or frisca I rekw� d�ls�srfrisk�1 . Fresh 
water. 
Aqure ductus lrekwiy d�kt�s/. In the civil law, a servi
tude which consists in the right to carry water by means 
of pipes or conduits over or through the estate of anoth
er. 
Aqure haustus lrekwiy host�s/. In the civil law, a servi
tude which consists in the right to draw water from the 
fountain, pool, or spring of another. 
Aqure immittendre lrekwiy im�tendiy/. A civil law ease
ment or servitude, consisting in the right of one whose 
house is surrounded with other buildings to cast waste 
water upon the adjacent roofs or yards. Similar to the 
common law easement of drip. 
Aqua fontanea lrekw� fonteyniy�/. Spring water. 
Aquagium. I �kweyjiy�m/. A canal, ditch, or water 
course running through marshy grounds. A mark or 
gauge placed in or on the banks of a running stream, to 
indicate the height of the water, was called "aquagaugi
um. "

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AQUA PROFLUENS 
Aqua profluens h�kw� profluwenz/. Flowing or run
ning water. 
Aqua quotidiana I rekw� kwowtidiyeyn�/. In Roman 
law, daily water; water that might be drawn at. all times 
of the year (qua quis quotidie possit uti, si vellet). 
Aqua salsa lrekw� srels�/. Salt water. 
Aquatic rights. Rights which individuals have to the 
use of the sea and rivers, for the purpose of fishing and 
navigation, and also to the soil in the sea and rivers. 
See Riparian rights; Water (Water rights). 
Aquilian law. See Lex Aquilia. 
A quo ley kwow I. Lat. From which. A court a quo 
(also written "a qua") is a court from which a cause has 
been removed. The judge a quo is the judge in such 
court. A term used, with the correlative ad quem (to 
which), in expressing the computation of time, and also 
of distance in space. Thus, dies a quo, the day from 
which and dies ad quem, the day to which, a period of 
time is computed. So, terminus a quo, the point or limit 
from which, and terminus ad quem, the point or limit to 
which, a distance or passage in space is reckoned. 
A quo invito aliquid exigi potest ley kwow invaytow 
rel�kw�d egz�jay powt�stl. From whom something may 
be exacted against his will. 
A.R. Anno Regni. In the year of the reign; as A. R. V. 
R. 22, (Anno Regni Victoriae Reginae vicesimo secundo) 
in the twenty-second year of the reign of Queen Victoria. 
Arabant I �reyb�nt/. They plowed. A term of feudal 
law, applied to those who held by the tenure of plowing 
and tilling the lord's lands within the manor. 
Arable land I rer�b�l lrend/. That which is fit for plow
ing or tillage, and thus is distinguishable from swamp 
land, which is land that is too wet for cultivation. 
Araho. In feudal law, to make oath in the church or 
some other holy place. All oaths were made in the 
church upon the relics of saints, according to the Ripua
rian laws. 
Aralia l�reyliy�/. Plowlands. Land fit for the plow. 
Denoting the character of land, rather than its condi
tion. 
Arator I �reyt�r I. A plowman; a farmer of arable land. 
Aratrum terrre I�reytr�m teriy/. In old English law, a 
plow of land; a plowland; as much land as could be 
tilled with one plow (or by a single "arator" or plow
man). 
Aratura terrre I rer�tyur� reriy I. The plowing of land by 
the tenant, or vassal, in the service of his lord. 
Araturia lrer�t(y)uriy�/. Land suitable for the plow; 
arable land. 
ARB. See Accounting Research Bulletin. 
Arbiter larb�t�r/. A person chosen to decide a contro
versy; an arbitrator, referee. A person bound to decide 
according to the rules of law and equity, as distin
guished from an arbitrator, who may proceed wholly at 
104 
his own discretion, so that it be according to the judg
ment of a sound man. See Arbitrator. 
In the Roman law, a judge invested with a discretion
ary power. A person appointed by the prretor to exam
ine and decide that class of causes or actions termed 
bome fidei, " and who had the power of judging according 
to the principles of equity, (ex requo et bono) distin
guished from the judex, (q. v.) who was bound to decide 
according to strict law. 
Arbitrage larb�tr�j/. The simultaneous purchase in one 
market and sale in another of a security or commodity 
in hope of making a profit on price differences in the 
different markets. See Arbitration of exchange; Arbitrag
ers. For Arbitrage bond, see Bond. 
Arbitragers I arb�treyj�rzrzh�r z/. Market investors 
who take off-setting positions in the same or similar 
securities in order to profit from small price variations. 
An arbitrager, for example, may buy shares on the 
Pacific Coast Exchange and simultaneously sell the 
same shares on the New York Stock Exchange if any 
price discrepancy occurs between the quotations in the 
two markets. By taking advantage of momentary dis
parities in prices between markets, arbitragers perform 
the economic function of making those markets more 
efficient. 
Arbitrament I arbitr�m�ntl. The award or decision of 
arbitrators upon a matter of dispute, which has been 
submitted to them. 
Arbitrament and award I arbitr�m�nt rend �word/. A 
plea to an action brought for the same cause which had 
been submitted to arbitration and on which an award 
had been made. 
Arbitramentum. requum. tribuit cuique suum. I ar
bitr�ment�m iykw�m tribyuw�t kaykwiy s(y)uw�m/. A 
just arbitration renders to every one his own. 
Arbitrarily. See Arbitrary. 
Arbitrariness. Conduct or acts based alone upon one's 
will, and not upon any course of reasoning and exercise 
of judgment. Garman v. Myers, 183 Okl. 141, 80 P.2d 
624, 626. 
Arbitrary. In an unreasonable manner, as fixed or done 
capriciously or at pleasure. Without adequate deter
mining principle; not founded in the nature of things; 
nonrational; not done or acting according to reason or 
judgment; depending on the will alone; absolutely in 
power; capriciously; tyrannical; despotic; Corneil v. 
Swisher County, Tex.Civ.App., 78 S.W.2d 1072, 1074. 
Without fair, solid, and substantial cause; that is, with
out cause based upon the law, U. S. v. Lotempio, D.C. 
N.Y., 58 F.2d 358, 359; not governed by any fixed rules 
or standard. Willful and unreasoning action, without 
consideration and regard for facts and circumstances 
presented. In re West Laramie, Wyo., 457 P.2d 498, 502. 
Ordinarily, "arbitrary" is synonymous with bad faith or 
failure to exercise honest judgment and an arbitrary act 
would be one performed without adequate determina
tion of principle and one not founded in nature of

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105 
things. Huey v. Davis, Tex.Civ.App., 556 S. W.2d 860, 
865. 
Arbitrary and capricious. Characterization of a deci
sion or action taken by an administrative agency or 
inferior court meaning willful and unreasonable action 
without consideration or in disregard of facts or law or 
without determining principle. Elwood Investors Co. v. 
Behme, 79 Misc.2d 910, 361 N.Y.S.2d 488, 492. See also, 
Rational basis test. 
Arbitrary power. Power to act according to one's own 
will; especially applicable to power conferred on an 
administrative officer, who is not furnished any ade
quate determining principle. Fox Film Corporation v. 
Trumbull, D.C.Conn., 7 F.2d 715, 727. 
Arbitrary punishment. That punishment which is left 
to the decision of the judge, in distinction from those 
defined by statute. See Sentence. 
Arbitration / arb�treysh;:m/. A process of dispute resolu
tion in which a neutral third party (arbitrator) renders a 
decision after a hearing at which both parties have an 
opportunity to be heard. Where arbitration is volun
tary, the disputing parties select the arbitrator who has 
the power to render a binding decision. 
An arrangement for taking and abiding by the judg
ment of selected persons in some disputed matter, in
stead of carrying it to established tribunals of justice, 
and is intended to avoid the formalities, the delay, the 
expense and vexation of ordinary litigation. Wauregan 
Mills Inc. v. Textile Workers Union of America, A.F.L.
C.1.0., 21 Conn. Sup. 134, 146 A.2d 592, 595. Such arbi
tration provisions are common in union collective bar
gaining agreements. 
The majority of the states have adopted the Uniform 
Arbitration Act. 
Agreements to arbitrate have been declared to be 
valid and fully enforceable by statute. 9 U.S.C.A. § 2. 
An organization that provides arbitration services is 
the American Arbitration Association (q.v.). 
See also Alternative dispute resolution; Conciliation; 
Mediation; Mediation and Conciliation Service; Reference. 
Compulsory arbitration is that which occurs when the 
consent of one of the parties is enforced by statutory 
provisions. Examples of such are state statutes requir
ing compulsory arbitration of labor disputes involving 
public employees. See Arbitration clause. 
Final offer arbitration. In this type of arbitration, the 
arbitrator must choose the final offer of either one party 
or the other and is, therefore, not permitted to compro
mise. 
Interest and grievance arbitration distinguished. Inter
est arbitration involves settlement of terms of a contract 
between the parties as contrasted with grievance arbi
tration which concerns the violation or interpretation of 
an existing contract. School Committee of Boston et a1. 
v. Boston Teachers Union etc., 363 N.E.2d 485. 
Voluntary arbitration is by mutual and free consent of 
the parties. 
ARBOR FINALIS 
Arbitration Acts. Federal and state laws which provide 
for submission of disputes to process of arbitration, 
including labor grievances and disputes of public em
ployees. An example of a federal Act is Title 9, U.S.C.A. 
§ 1 et seq. which governs settlement of disputes involved 
in maritime transactions and commerce under federal 
statutes. Most states have arbitration acts, many of 
which are patterned on the Uniform Arbitration Act. 
The purpose of such acts, in general, is to validate 
arbitration agreements, make the arbitration process 
effective, provide necessary safeguards, and provide an 
efficient procedure when judicial assistance is necessary. 
Arbitration and award. An affirmative defense to the 
effect that the subject matter of the action has been 
settled by a prior arbitration. Fed.R. Civil P. 8(c). 
Arbitration board. A panel of arbitrators appointed to 
hear and decide a dispute according to rules of arbitra
tion. See e.g. American Arbitration Association. 
Arbitration clause. A clause inserted in a contract 
providing for compulsory arbitration in case of dispute 
as to rights or liabilities under such contract; e.g. dis
putes arising under union collective bargaining agree
ment, or disputes between consumer and retailer or 
manufacturer. The purpose of such clause is to avoid 
having to litigate disputes that might arise. 
Arbitration of exchange. This takes place where a 
merchant pays his debts in one country by a bill of 
exchange upon another. The business of buying and 
selling exchange (bills of exchange) between two or more 
countries or markets, and particularly where the profits 
of such business are to be derived from a calculation of 
the relative value of exchange in the two countries or 
markets, and by taking advantage of the fact that the 
rate of exchange may be higher in the one place than in 
the other at the same time. See Arbitrage. 
Arbitrator. A neutral person either chosen by the par
ties to a dispute or appointed by a court, to hear the 
parties claims and render a decision. Many arbitrators 
are members of the American Arbitration Association. 
See also Referee; Umpire. 
Arbitrium /arbitriy�m/. The decision of an arbiter, or 
arbitrator; an award; a judgment. 
Arbitrium est judicium / arbitriy�m est juwdishiy�m/. 
An award is a judgment. 
Arbitrium est judicium boni viri, secundum requum 
et bonum /arbitriy�m est juwdishiy�m b6wnay varay, 
s�kand�m iykw�m �t b6wn�m/. An award is the judg
ment of a good man, according to justice. 
Arbor civilis / arb�r siv�l�s/. A genealogical tree. 
Arbor consanguinitatis / arb�r konsreIJgwiniyteyt�s/. A 
table, formed in the shape of a tree, showing the gene
alogy of a family; e.g. the arbor civilis of the civilians 
and canonists. 
Arbor finalis /arb�r f�neyl�s/. In old English law, a 
boundary tree; a tree used for making a boundary line.

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ARCANA IMPERII 
Arcana imperii I arkeyn� impiriyay I. State secrets. 1 
Bl.Comm. 337. 
Arcarius larkeriy�s/. In civil and old English law, a 
treasurer; a keeper of public money. 
Archaionomia I arkiy�n6wmiy�/. A collection of Saxon 
laws, published during the reign of Queen Elizabeth, in 
the Saxon language, with a Latin version by· Lambard. 
Archdeaconry larchdiyk�nriy/. A division of a diocese, 
and the circuit of an archdeacon's jurisdiction. 
Archdeacon's court. In English ecclesiastical law, a 
court held before a judge appointed by the archdeacon, 
and called his official. Its jurisdiction comprised the 
granting of probates and administrations, and ecclesias
tical causes in general, arising within the archdeaconry. 
It was the most inferior court in the whole ecclesiastical 
polity of England. Appeal was to the bishops' courts. 
Archery. In feudal law, a service of keeping a bow for 
the lord's use in the defense of his castle. 
Arches Court I arch�z k6rt/. In English ecclesiastical 
law, a court of appeal belonging to the Archbishop of 
Canterbury, the judge of which is called the "Dean of 
the Arches", because his court was anciently held in the 
church of Saint Mary-Ie-Bow (Sancta Maria de Arcubus), 
so named from the steeple, which is raised upon pillars 
built archwise. The court was afterwards held in the 
hall belonging to the College of Civilians, commonly 
called "Doctors' Commons". It is now held in Westmin
ster Hall. Its proper jurisdiction is only over the thir
teen peculiar parishes belonging to the archbishop in 
London, but, the office of Dean of the Arches having 
been for a long time united with that of the archbishop's 
principal official, the Judge of the Arches, in right of 
such added office, it receives and determines appeals 
from the sentences of all inferior ecclesiastical courts 
within the province. Many original suits are also 
brought before him from which the inferior judge has 
waived jurisdiction. From the Court of Arches an ap
peal lies to the Judicial Committee of the Privy Council. 
Archetype I arbtayp /. The original from which a copy 
is made. 
Archicapellanus I arkiykrep�leyn�s/. L. Lat. In old Eu
ropean law, a chief or high chancellor (summus cancel
larius). 
Architect's lien. A lien on real estate created by statute 
in favor of the architect who drew the plans and super
vised the construction of the real estate for purpose of 
insuring payment of his fee. 
Archives. Place where old books, manuscripts, records, 
etc. are kept. 
Archivist I ark�vistl . Custodian of archives. 
Arcifinious I ars�finiy�s/. (Lat. arcifinius or arcifinalis; 
Fr. arcifinie). Pertaining to landed estates having natu
ral boundaries, such as woods, mountains, or rivers. 
The owners of such estates, unlike the owners of "agri 
limitati" (q.v.), have the right of alluvion. Also, having 
a frontier forming a natural defense. 
106 
Arcta et salva custodia I arkt� et s�elv� bst6wdiy� /. 
Lat. In strict (or close) and safe custody or keeping. 
When a defendant is arrested on a capias ad satisfacien
dum (ca. sq.}, he is to be kept arcta et salva custodio 3 
Bl.Comm. 415. 
Ardent spirits. Synonymous with distilled or spirituous 
liquors and, sometimes, with intoxicating liquors gener
ally, though the term is properly applied only to liquors 
obtained by distillation, such as rum, whiskey, brandy, 
and gin. Sarlls v. U. S., 152 U.S. 570, 572, 14 S.Ct. 720, 
38 L.Ed. 556. 
Ardour lard�r/. In old English law, an incendiary; a 
house burner. An arsonist. 
Area. A surface, a territory, a region. Any plane sur
face, also the inclosed space on which a building stands. 
A particular extent of space or surface or one serving a 
special purpose. In the civil law, a vacant space in a 
city; a place not built upon. For "common area", see 
Common. 
Area bargaining. Negotiation of collective bargaining 
agreement between a union and more than one employ
er within a given geographical area. 
Area variance. In zoning law, a variance which autho
rizes deviations from restrictions upon construction and 
placement of buildings and structures which are em
ployed to serve permitted statutory use. Bienz v. City of 
Dayton, 29 Or.App. 761, 566 P.2d 904, 919. See also 
Variance (Zoning). 
Area wide bargaining. See Area bargaining. 
A remenaunt la r�meyn�nt/. Forever. 
A rendre I a r6nd�r I. Fr. To render, to yield. That 
which is to be rendered, yielded, or paid. Profits a 
rendre comprehend rents and services. 
Arentare lrer�nteriy/. Lat. To rent; to let out at a 
certain rent. Arentatio. A renting. 
Areopagite lreriy6p�gayt/. In ancient Greek law, a law
yer or chief judge of the Areopagus in capital matters in 
Athens; a tribunal so called after a hill or slight emi
nence, in a street of that city dedicated to Mars, where 
the court was held in which those judges were wont to 
sit. 
Arere I�rir/. L. Fr. Behind; in arrear; back; again. 
A rescriptis valet argumentum I ey r�skript�s v(el�t 
argyuwment�m/. An argument from rescripts [i.e. orig
inal writs in the register] is valid. 
A responsis I ey r;)sp6ns�s/. L. Lat. In ecclesiastical 
law, one whose office it was to give or convey answers; 
otherwise termed responsalis, and apocrisiarius. One 
who, being consulted on ecclesiastical matters, gave an
swers, counsel, or advice; otherwise termed a consiliis. 
Aretro I eyriytrow I. In arrear; behind. Also written a 
retro. 
Arg. An abbreviation of arguendo. 
Argent. In heraldry, silver.

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107 
Argentarius larj:mteriy�sl (pl., argentarii larj�nte
riyay/). In the Roman law, a money lender or broker; a 
dealer in money; a banker. Argentarium, the instru
ment of the loan, similar to the modern word "bond" or 
"note." 
Argentarius miles I arj�nteriy�s mayliyz/. A money 
porter in the English exchequer, who carried the money 
from the lower to the upper exchequer to be examined 
and tested. 
Argenteus I arjentiy;}s/. An old French coin, similar to 
the English shilling. 
Argentum larjent;}m/. Silver; money. 
Argentum album I arj€mt;}m relb;}m/. Bullion; uncoined 
silver; common silver coin; silver coin worn smooth. 
Argentum dei larjent;}m diyay/. God's money; God's 
penny; money given as earnest in making a bargain. 
Arguendo I argyuwendow I. In arguing; in the course of 
the argument. A statement or observation made by a 
judge or attorney as a matter of argument or hypotheti
cal illustration, is said to be made arguendo, or in the 
abbreviated form, argo 
Argument. An effort to establish belief by a course of 
reasoning. In rhetoric and logic, an inference drawn 
from premises, the truth of which is indisputable, or at 
least highly probable. See also Oral argument. 
Argument by counsel. Remarks addressed by attorney 
to judge or jury on the merits of case or on points of law. 
Oral presentation to appellate court in which attorney's 
brief is argued; generally limited in time, order, and 
content by court rule (see e.g. Fed.R.App.P. 34). See 
Opening statement of counsel. 
Argument to jury. Closing remarks of attorney to jury 
in which he strives to persuade jury of merits of case; 
generally limited in time by rules of court. The argu
ment is not evidence. See also Closing argument. 
Argumentative. Characterized by argument; contro
versial; given to debate or dispute. A pleading is so 
called in which the statement on which the pleader 
relies is implied instead of being expressed, or where it 
contains, in addition to proper statements of facts, rea
soning or arguments upon those facts and their relation 
to the matter in dispute, such as should be reserved for 
presentation at the trial. 
Argumentative instruction. A jury instruction which 
singles out or unduly emphasizes a particular issue, 
theory, or defense, or one which tends to invade the 
province of the jury with regard to the weight, probative 
effect, or sufficiency of the evidence or the inferences to 
be drawn therefrom. 
Argumentative question. A faulty form of examina
tion of witness by propounding a question which sug
gests answer in a manner favorable to party who ad
vances the question or which contains a statement in 
place of a question. See Leading question. 
Argumentum ab auctoritate est fo rtissimum in lege 
I argy;}ment;}m reb oktor;}ooytiy est fortis;}m;}m in liyjiy I. 
ARIERBAN 
An argument from authority is the strongest in the law. 
"The book cases are the best proof of what the law is." 
Argumentum ab impossibili valet in lege I argy;}
menbm ceb imposib;}lay vrel�t in liyjiy/. An argument 
drawn from an impossibility is forcible in law. 
Argumentum ab inconvenienti I argy;}m€mt;}m ceb 
iIJk;}nviyniyentay I. An argument arising from the in
convenience which the proposed construction of the law 
would create. 
Where the constitutionality of a statute is concerned, 
it is only when the question is close and doubtful that 
this doctrine will be applied and consideration taken of 
the consequences of declaring the statute unconstitu
tional. Calhoun County V. Early County, 205 Ga. 169, 
52 S.E.2d 854; Smith V. City Council of Augusta, 203 Ga. 
5H, 47 S.E.2d 582, 587. 
Argumentum ab inconvenienti est validum in lege; 
quia lex non permittit aliquod inconveniens I ar
gy;}ment;}m ceb iIJk;}nviyniyentay est vrebd;}m in liyjiy; 
kway;} leks non p;}rmit;}t rel;}kw;}d iuk;}nviyniyenz/. An 
argument drawn from what is inconvenient is good in 
law, because the law will not permit any inconvenience. 
Argumentum ab inconvenienti plurimum valet [est 
validum] in lege I argy;}ment;}m ceb iIJk;}nviyniyentay 
pl(y)ur;}m;}m vrebt in liyjiyrest vrebd;}mo I. An argu
ment drawn from inconvenience is of the greatest 
weight [is forcible] in law. If there be in any deed or 
instrument equivocal expressions, and great inconven
ience must necessarily follow from one construction, it is 
strong to show that such construction is not according to 
the true intention of the grantor; but where there is no 
equivocal expression in the instrument, and the words 
used admit only of one meaning, arguments of inconven
ience prove only want of foresight in the grantor. 
Argumentum a communiter accidentibus in jure fre
quens est I argy;}ment;}m ey k;}myUwn;}t;}r cek
s;}dent;}b;}s in juriy friykwenz est!. An argument drawn 
from things commonly happening is frequent in law. 
Argumentum a divisione est fort issimum in jure 
I argy;}ment;}m ey divizhiyowniy est fortis;}m;}m in 
juriy/. An argument from division [of the subject] is of 
the greatest force in law. 
Argumentum a majori ad minus negative non valet; 
valet e converso I argy;}ment;}m ey m;}joray ced mayn;}s 
neg;}tayviy non vrebt; vrel;}t iy k;}nv;}rsow I. An argu
ment from the greater to the less is of no force negative
ly; affirmatively (or conversely) it is. 
Argumentum a simili valet in lege largy;}menbm ey 
sim;}lay vrebt in liyjiy I. An argument from a like case 
(from analogy) is good in law. 
Aribannum lrer;}bren;}m/. In feudal law, a fine for not 
setting out to join the army in obedience to the sum
mons of the king. 
Arierban, or arriere-ban I rer(i)yey bren/. An edict of 
the ancient kings of France and Germany, commanding 
all their vassals, the noblesse, and the vassals' vassals,

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ARIERBAN 
to enter the army, or forfeit their estates on refusal. 
See Arrier ban. 
Arimanni / rer;;,mrenay / . A medireval term for a class of 
agricultural owners of small allodial farms, which they 
cultivated in connection with larger farms belonging to 
their lords, paying rent and service for the latter, and 
being under the protection of their superiors. Military 
tenants holding lands from the emperor. 
Arise. To spring up, originate, to come into being or 
notice; to become operative, sensible, visible, or audible; 
to present itself. Bergin v. Temple, 111 Mont. 539, 111 
P.2d 286, 289, 290. 
A cause of action or suit "arises", so as to start 
running of limitation, when party has a right to apply to 
proper tribunal for relief, Washington Security Co. v. 
State, 9 Wash.2d 197, 11 4 P.2d 965, 967; and it arises at 
time when and place where act is unlawfully omitted or 
committed. State ex reI. Birnamwood Oil Co. v. Shaugh
nessy, 243 Wis. 306, 10 N.W.2d 292, 295. See Limitation 
(Statute of limitations). 
Arise under. An action "arises under" the laws of the 
United States, for purposes of federal question jurisdic
tion, if, and only if, the complaint seeks a remedy 
expressly granted by a federal statute or if resolution of 
the issue requires construction of the statute or if the 
statute embodies a distinct policy which requires that 
federal legal principles control its disposition. Comtron
ics, Inc. v. Puerto Rico Tel. Co., D.C .Puerto Rico, 409 
F.Supp. 800, 813. 
A case "arises" under the Constitution or a law of the 
United States, so as to be within the jurisdiction of a 
federal court, whenever its correct decision depends on 
the construction of either. Blease v. Safety Transit Co., 
C.C.A.S.C., 50 F.2d 852, 854. 
Arising out of and in the course of own employment. 
Workers' compensation acts provide for compensating 
an employee whose injury is one "arising out of and in 
the course of the employment." These words describe 
an injury directly and naturally resulting in a risk 
reasonably incident to the employment. Trudenich v. 
Marshall, D.C.Wash., 34 F.Supp. 486, 488. They mean 
that there must be some causal connection between the 
conditions under which the employee worked and the 
injury which he received. 
The words "arising out of employment" refer to the 
origin of the cause of the injury, while "course of em
ployment" refers to the time, place, and circumstances 
under which the injury occurred. An injury arises "out 
of' employment if it arises out of nature, conditions, 
obligations and incidents of the employment. Newman 
v. Bennett, 212 Kan. 562, 512 P.2d 497, 50l. 
See also Course of employment; In the course of em
ployment. 
Aristocracy. A government in which a class of persons, 
believed to be superior, rules supreme. A form of 
government which is lodged in a minority consisting of 
those believed to be best qualified; a privileged class of 
108 
the people; nobles, dignitaries, people of wealth and 
station. 
Aristo-democracy. A form of government where the 
power is divided between the nobles (or the more power
ful) and the people. 
ARM. Adjustable Rate Mortgage. See Mortgage. 
Arma / arm;;,/. Lat. Arms; weapons, offensive and de
fensive; armor; arms or cognizances of families. 
Arma dare / arm;;, deriy /. To dub or make a knight. 
Arma in armatos sumere jura sinunt / arm;;, in armey
tos s(y)uwm;;,riy jur;;, sayn;;,nt/. The laws permit the 
taking up of arms against armed persons. 
Arma moluta farm;;, m;;,l(y)uwt;;,/. Sharp weapons that 
cut, in contradistinction to such as are blunt, which only 
break or bruise. 
Arma reversata / arm;;, riyv�rseyt;;,/. Reversed arms, a 
punishment for a traitor or felon. 
Armata vis /armeyt;;, vis/. In the civil law, armed force. 
Armed. Furnished or equipped with weapons of offense 
or defense. People ex reI. Griffin v. Hunt, 150 Misc. 
163, 270 N.Y.S. 248, 254. 
Armed neutrality. An attitude of neutrality between 
belligerents which the neutral state is prepared to main
tain by armed force if necessary. 
Armed peace. A situation in which two or more na
tions, while actually at peace with each other, are arm
ed for possible or probable hostilities. 
Armed robbery. An aggravated form of robbery in 
which the defendant is armed with a dangerous weapon, 
though it is not necessary to prove that he used the 
weapon to effectuate the robbery. The taking of proper
ty from person or presence of another by use of force or 
by threatening use of force while armed with a danger
ous weapon. People v. Redding, 43 Ill.App. 1024, 2 
Ill. Dec. 784, 357 N.E.2d 1227, 1230. 
Armiger "/arm;;,j;;,r/. An armor-bearer; an esquire. A 
title in old English law of dignity belonging to gentle
men authorized to bear arms. In its earlier meaning, a 
servant who carried the arms of a knight. A tenant by 
scutage; a servant or valet; applied, also, to the higher 
servants in convents. 
Arming one's self. Equipping one's self with a weapon 
or weapons. 
Armiscara / arm;;,sker;;,/. An ancient mode of punish
ment, which was to carry a saddle at the back as a token 
of subjection. 
Armistice. A suspending or cessation of hostilities be
tween belligerent nations or forces for a considerable 
time. An armistice differs from a mere "suspension of 
arms" (q.v.) in that the latter is concluded for very brief 
periods and for local military purposes only, whereas an 
armistice not only covers a longer period, but is agreed 
upon for political purposes. It is said to be general if it 
relates to the whole area of the war, and partial if it 
relates to only a portion of that area. Partial armistices

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109 
are sometimes called truces (q.v.) but there is no hard 
and fast distinction. 
Arm of the sea. A portion of the sea projecting inland, 
in which the tide ebbs and flows. It is considered as 
extending as far into the interior of a country as the 
water of fresh rivers is propelled backwards by the 
ingress of the tide. See Fauces terrre. 
Armorial bearings I armoriy�l berilJz/. In English law, 
a device depicted on the (now imaginary) shield of one of 
the nobility, of which gentry is the lowest degree. The 
criterion of nobility is the bearing of arms, or armorial 
bearings, received from ancestry. 
Armorum appellatione, non solum scuta et gladii et 
galere, sed et fustes et lapides continentur I armor�m 
rep�leyshiyowniy, non sowbm sk(y)uwt� et glrediyay et 
greliyiy, sed et f�stiyz et lrep�diyz kont�nent�r/. Under 
the name of arms are included, not only shields and 
swords and helmets, but also clubs and stones. 
Armory. A building where arms, ammunition, and in
struments of war are stored. 
Arms. Anything that a man wears for his defense, or 
takes in his hands as a weapon. See also Bear arms. 
Arms, law of. Agreements (as established e.g. by Gene
va Convention) which give precepts and rules concerning 
conditions of war; e.g. treatment of prisoners, wounded, 
etc. 
Arm's length transaction. Said of a transaction negoti
ated by unrelated parties, each acting in his or her own 
self interest; the basis for a fair market value determi
nation. A transaction in good faith in the ordinary 
course of business by parties with independent interests. 
Commonly applied in areas of taxation when there are 
dealings between related corporations, e.g. parent and 
subsidiary. Inecto, Inc. v. Higgins, D.C.N.Y., 21 F.Supp. 
418. The standard under which unrelated parties, each 
acting in his or her own best interest, would carry out a 
particular transaction. For example, if a corporation 
sells property to its sole shareholder for $10, 000, in 
testing whether $10, 000 is an "arm's length" price it 
must be ascertained for how much the corporation could 
have sold the property to a disinterested third party in a 
bargained transaction. 
Arms, right to. Right guaranteed by Second Amend
ment, U.S. Constitution, to keep and bear arms. This 
right does not, however, permit a person to carry gun in 
violation of state or federal gun law. Com. v. Jackson, 
Mass., 344 N.E.2d 166. 
Army. Armed forces of a nation intended for military 
service on land. 
Regular army. The permanent military establishment, 
which is maintained both in peace and war according to 
law. Compare Mili tia. 
Around. In the vicinity of; near or close-by. 
Arpen, arpent, arpennus. A civil and French measure 
of land equal to about an acre. 
ARREST 
Arpentator I arp�nteybr/. A measurer or surveyor of 
land. 
Arra lrer�/. In the civil law, earnest; earnest-money; 
evidence of a completed bargain. Used of a contract of 
marriage, as well as any other. Spelled, also, Arrha, 
Arr.hre, Arrre. Cf. ArIes. 
Arraign I �hreyn/. In old English law, to order; or set 
in order; to conduct in an orderly manner; to prepare 
for trial. To arraign an assise was to cause the tenant 
to be called to make the plaint, and to set the cause in 
such order as the tenant might be enforced to answer 
thereunto. See Arraignment. 
Arraignment I �hreynm�nt/. Procedure whereby the ac
cused is brought before the court to plead to the crimi
nal charge against him in the indictment or informa
tion. The charge is read to him and he is asked to plead 
"guilty" or "not guilty" or, where permitted, "nolo con
tendere." State v. McCotter, 288 N.C. 227, 217 S.E.2d 
525, 529. 
Arraignment shall be conducted in open court and 
shall consist of reading the indictment or information to 
the defendant or stating to him the substance of the 
charge and calling on him to plead thereto. He shall be 
given a copy of the indictment or information before he 
is called upon to plead. Fed.R.Crim.P. 10. 
See also Information; Preliminary hearing; Plea. 
Arraigns, clerk of. In old English law, an assistant to 
the clerk of assise. 
Arrangement with creditors. A plan of a debtor for 
the settlement, satisfaction, or extension of the time of 
payment of his debts. Chapter 11 of the federal Bank
ruptcy Code provides for a device whereby, under the 
protection and supervision of the court, a financially 
troubled business may work out an agreement with its 
creditors under a reorganization plan permitting it to 
stay in business, rather than going bankrupt. Arrange
ments of individual debtors with their creditors are 
provided for under Chapter 13 of the Code. See also 
Bankruptcy proceedings (Business reorganizations; Wage 
earner's plan); Composition with creditors. 
Array I �hrey I. The whole body of persons summoned to 
serve as jurors, from which the final trial jury is select
ed. Also, the list of jurors impaneled. See Jury panel. 
Arrears, arrearages. Money which is overdue and un
paid; e.g. overdue mortgage or rent payments. 
Term used to describe cumulative preferred stock divi
dends that have not been declared on time. 
Arrent I�hrent/. In old English law, to let or demise at 
a fixed rent. Particularly used with reference to the 
public domain or crown lands; as where a license was 
granted to inclose land in a forest with a low hedge and 
a ditch, under a yearly rent, or where an encroachment, 
originally a purpresture, was allowed to remain on the 
fixing and payment of a suitable compensation to the 
public for its maintenance. 
Arrest. To deprive a person of his liberty by legal 
authority. Taking, under real or assumed authority,

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ARREST 
custody of another for the purpose of holding or detain
ing him to answer a criminal charge or civil demand. 
State v. Ferraro, 81 N.J.Super. 213, 195 A.2d 227; Peo
ple v. Wipfler, 37 Ill.App.3d 400, 346 N.E.2d 41, 44. 
Arrest involves the authority to arrest, the assertion 
of that authority with the intent to effect an arrest, and 
the restraint of the person to be arrested. Village of 
Hoffman Estates v. Union Oil Co. of California, 13 
Ill.Dec. 277, 370 N .E.2d 1304, 1308. All that is required 
for an "arrest" is some act by officer indicating his 
intention to detain or take person into custody and 
therby subject that person to the actual control and will 
of the officer; no formal declaration of arrest is re
quired. Com. v. Brown, 230 Pa.Super. 214, 326 A.2d 
906, 907. 
See also Booking; Citizen's arrest; Custodial arrest; 
False arrest; Lawful arrest; Probable cause; Reasonable 
grounds; Warrantless arrest. 
Citizen:S arrest. See Citizen's arrest. 
Civil arrest. The apprehension of a person by virtue of 
a lawful authority to answer the demand against him in 
a civil action. Also includes arrest of a ship or cargo in 
maritime in rem actions. Fed.R. Civil P., Supp.Ad
mir.R. C(3), D. 
Parol arrest. One ordered by a judge or magistrate from 
the bench, without written complaint or other proceed
ings, of a person who is present before him, and which is 
executed on the spot; as in case of breach of the peace in 
open court. 
Privilege from arrest. See Privilege. 
Rearrest. Right of officer to take without warrant one 
who has escaped after arrest, or violated parole, or failed 
to respond to bond for appearance. 
Warrantless arrest. Seizure of a person without warrant 
but based on probable cause that he has committed 
felony. May also be made for commission of misde
meanor amounting to breach of peace in presence of 
officer. Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 
L.Ed.2d 441. 
Warrant of arrest. See Warrant. 
Arrestandis bonis ne dissipentur I rer;}strend;}s b6wn;}s 
niy d;}s;}pEmt;}r/. In old English law, a writ which lay 
for a person whose cattle or goods were taken by anoth
er, who during a contest was likely to make away with 
them, and who had not the ability to render satisfaction. 
Arrestando ipsum qui pecuniam recepit I rer;}strendow 
ipsow kway p;}kyuwniy;}m r;}siyp;}t/. In old English law, 
a writ which issued for apprehending a person who had 
taken the ken's prest money to serve in the wars, and 
then hid himself in order to avoid going. 
Arrestatio lrer;}steysh(iy)ow/. In old English law, an 
arrest (q.v.). 
Arresto facto super bonis mercatorum alienigeno
rum I�hrestow frektow s(y)uwp�r b6wn�s m�rk�t6r�m 
reliyiyn�j�n6r�m/. In old English law, a writ against the 
goods of aliens found within this kingdom, in recom-
110 
. pense of goods taken from a denizen in a foreign coun
try, after denial of restitution. The ancient civilians 
called it "c larigatio," but by the moderns it is termed 
"reprisalia. " 
Arrest of inquest. Pleading in arrest of taking the 
inquest upon a former issue, and showing cause why an 
inquest should not be taken. 
Arrest of judgment. The act of staying a judgment, or 
refusing to render judgment in an action at law and in 
criminal cases, after verdict, for some matter intrinsic 
appearing on the face of the record, which would render 
the judgment, if given, erroneous or reversible. The 
court on motion of a defendant shall arrest judgment if 
the indictment or information does not charge an of
fense or if the court was without jurisdiction of the 
offense charged. Fed.R.Crim.P. 34. 
Arrest record. Official form completed by police depart
ment when a person is arrested. Also, cumulative 
record of instances in which a person has been arrested, 
commonly maintained by probation office and useful to 
judge in setting sentences for second, third, etc. offend
ers. 
Arrest warrant. See Warrant. 
Arret laret/arey/. Fr. A judgment, sentence, or decree 
of a court of competent jurisdiction. The term is de
rived from the French law, and is used in Canada and 
Louisiana. 
Saisie arret is an attachment of property in the hands of 
a third person. 
Arretted I ;}hret�d/. Convened before a judge and 
charged with a crime. 
Arrhabo I�hreybow/. In the civil law, earnest money 
given to bind a bargain. 
Arrha: lreriy/. In the civil law, money or other valuable 
things given by the buyer to the seller, for the purpose 
of evidencing the contract; earnest money. See Arra; 
Pot-de-vin. 
Arrhre sponsalitire were the earnest or present given by 
one betrothed to the other at the betrothal. 
Arriage and carriage lrer;}j �n krer�j/. In English and 
Scotch law, indefinite services formerly demandable 
from tenants, but prohibited by statute. 
Arrier ban I;}ri(y)�r bren/. In feudal law, a second 
summons to join the lord, addressed to those who had 
neglected the first. A summons of the inferiors or 
vassals of the lord. See Arierban. 
Arriere fief, or fee I�ri(y)�r fiy(f)/. In feudal law, a fief 
or fee dependent on a superior one; an inferior fief 
granted by a vassal of the king, out of the fief held by 
him. 
Arriere vassal I�ri(y)�r vres�l/. In feudal law, the vassal 
of a vassal. 
Arrival. To come to, or reach, a particular place. The 
attainment of an end or state. The act of arriving.

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111 
In marine insurance, arrival of a vessel means an 
arrival for purposes of business, requiring an entry and 
clearance and stay at the port so long as to require some 
of the acts connected with business, and not merely 
touching at a port for advices, or to ascertain the state of 
the market, or being driven in by an adverse wind and 
sailing again as soon as it changes. F. S. Royster Guano 
Co. v. U. S., C.C.A.Va., 18 F.2d 469, 470. 
Arrogation. In the civil law, the adoption of a person 
who was of full age or sui juris. 
Arsre et pensatre hirsiy et p:mseytiy/. Burnt and 
weighed. A term formerly applied to money tested or 
assayed by fire and by weighing. 
Arsenals / ars:m;;)lz/. Store-houses for arms; dock-yards, 
magazines, and other military stores. 
Arser in Ie main /arsey on 1;;) mren/. Fr. Burning in 
the hand. The punishment by burning or branding the 
left thumb of lay offenders who claimed and were al
lowed the benefit of clergy, so as to distinguish them in 
case they made a second claim of clergy. 
Arson. At common law, the malicious burning of the 
house of another. This definition, however, has been 
broadened by state statutes and criminal codes. For 
example, the Model Penal Code, § 220.1(1), provides that 
a person is guilty of arson, a felony of the second degree, 
if he starts a fire or causes an explosion with the 
purpose of: (a) destroying a building or occupied struc
ture of another; or (b) destroying or damaging any 
property, whether his own or another's, to collect insur
ance for such loss. Other statutes include the destruc
tion of property by other means; e.g., explosion. 
In several states, this crime is divided into arson in 
the first, second, and third degrees, the first degree 
including the burning of an inhabited dwelling-house in 
the nighttime; the second degree, the burning (at night) 
of a building other than a dwelling-house, but so situ
ated with reference to a dwelling-house as to endanger 
it; the third degree, the burning of any building or 
structure not the subject of arson in the first or second 
degree, or the burning of property, his own or another's 
with intent to defraud or prejudice an insurer thereof. 
See Aggravated arson, below. 
Aggravated arson. The burning or blowing up of proper
ty when the actor foresees or anticipates the presence of 
persons at site, or in such close proximity thereto, so 
that their lives might be endangered by the act. State 
v. Bonfanti, 254 La. 877, 227 So.2d 916, 918. 
Arson clause. Clause in insurance policy voiding cover
age if fire is set under direction or by insured. 
Arsura /ars(y)ur;;)/. The trial of money by heating it 
after it was coined. The loss of weight occasioned by 
this process. A pound was said to burn so many pence 
(tot ardere denarios) as it lost by the fire. The term is 
now obsolete. 
Art. Systematic application of knowledge or skill in 
effecting a desired result; also an employment, occupa-
ARTICLES 
tion or business requiring such knowledge or skill; a 
craft, as industrial arts. 
In the law of patents, this term means a useful art or 
manufacture which is beneficial and which is described 
with exactness in its mode of operation. Such an art 
can be protected only in the mode and to the extent thus 
described. It is synonymous with process or method 
when used to produce a useful result, and may be either 
a force applied, a mode of application, or the specific 
treatment of a specific object, and must produce physical 
effects. Emmett v. Metals Processing Corporation, C.C. 
A.Ariz., 11 8 F.2d 796, 79B. 
In seduction cases, "art" means the skillful and sys
tematic arrangement of means for the attainment of a 
desired end. 
Arteriosclerosis. Abnormal thickening and hardening 
of the arteries. 
Artesian basin. A body of water more or less compact, 
moving through soils with more or less resistance. 
Arthel, ardhel, or arddelio. In old English law, to 
avouch; as if a man were taken with stolen goods in his 
possession he was allowed a lawful arthel, i.e., vouchee, 
to clear him of the felony. 
Article. A separate and distinct part of an instrument 
or writing; one of several things presented as connected 
or forming a whole. A particular object or substance, a 
material thing or a class of things. Material or tangible 
object. See Articles. 
In English ecclesiastical law, a complaint exhibited in 
the ecclesiastical court by way of libel. The different 
parts of a libel, responsive allegation, or counter allega
tion in the ecclesiastical courts. 
Articled clerk. In English law, a clerk bound to serve 
in the office of a solicitor in consideration of being 
instructed in the profession. This is the general accep
tation of the term; but it is said to be equally applicable 
to other trades and professions. 
Articles. A connected series of propositions; a system of 
rules. The subdivisions of a document, code, book, etc. 
A specification of distinct matters agreed upon or estab
lished by authority or requiring judicial action. 
A statute; as having its provisions articulately ex
pressed under distinct heads. 
A system of rules established by legal authority; as 
articles of war, articles of the navy, articles of faith. 
(See infra.) 
A contractual document executed between parties, 
containing stipulations or terms of agreement; as arti
cles of agreement, articles of partnership. 
A naval term meaning employment contract. South 
Chicago Coal & Dock Co. v. Bassett, C.C.A.Ill., 104 F.2d 
522, 526. 
In chancery practice, a formal written statement of 
objections filed by a party, after depositions have been 
taken, showing ground for discrediting the witnesses. 
In ecclesiastical law, a complaint in the form of a libel 
exhibited to an ecclesiastical court. See Article.

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ARTICLES OF AGREEMENT 
Articles of agreement. A written memorandum of the 
terms of an agreement. See Memorandum. 
Articles of amendment. Terms and conditions of corpo
rate management enacted subsequent to articles of in
corporation. See Articles of incorporation. 
Articles of apprenticeship. Written agreement be
tween master and minor under which minor agrees to 
work for master for stated period of time in return for 
instruction in a trade by the master. 
Articles of association. Basic instrument filed with the 
appropriate governmental agency (e.g. Sec. of State) on 
the incorporation of a business. It sets forth the pur
poses of the corporation, its duration, the rights and 
liabilities of shareholders and directors, classes of stock, 
etc. Such document is referred to as "articles of incor
poration" in many states. Certificate (similar to one of 
incorporation) used by non-stock companies such as 
charitable and mutual corporations. Articles of associa
tion are to be distinguished from a charter, in that the 
latter is a grant of power from the sovereign or the 
legislature. See Articles of incorporation; Articles of part
nership; Certificate of incorporation. 
Articles of Confederation. The name of the instru
ment embodying the compact made between the thir
teen original states of the Union, operative from March 
1, 1781 to March 4, 1789, before the adoption of the 
present Constitution. 
Articles of dissolution. Document required to be filed 
with secretary of state (or other designated official) after 
corporation has settled all its debts and distributed all of 
its net assets prior to dissolution. See, e.g., Rev.Model 
Bus.Corp.Act § 14.03. 
Articles of faith. In English law, the system of faith of 
the Church of England, more commonly known as the 
"Thirty-Nine Articles." Drafted in 1562. 
Articles of impeachment. A formal written allegation 
of the causes for impeachment; answering the same 
office as an indictment in an ordinary criminal proceed
ing. See Imp eachment. 
Articles of incorporation. The basic instrument filed 
with the appropriate governmental agency (e.g., Sec. of 
State) on the incorporation of a business; sometimes 
also called "certificate of incorporation," "articles of 
organization," "articles of association," or other similar 
name. The contents thereof are prescribed in the gener
al incorporation statutes (but commonly include the 
corporation's name, period of existence, purpose and 
power, authorized number of shares, classes of stock, 
and other conditions of operation). See e.g., Rev. Model 
Bus. Corp. Act § 2.02. In many jurisdictions official 
forms are prescribed. In most jurisdictions, corporate 
existence begins with the filing, usually with the secre
tary of state, of the articles or certificate of incorpo
ration. In some jurisdictions, duplicate articles of incor
poration are filed, and corporate existence beings with 
the issue of a formal certificate appended thereto called 
a "certificate of incorporation." Various conditions 
112 
precedent to doing business might also be imposed. See 
Articles of association; Certificate of incorporation. 
Articles of merger, consolidation, or share exchange. 
Document filed with Secretary of State setting forth 
terms and conditions of merger consolidation, or share 
exchange. See e.g., Rev.ModeLBus.Corp.Act § 11. 05. 
Articles of partnership. A written agreement by which 
the parties enter into a partnership upon the terms and 
conditions therein stipulated. 
Articles of the clergy. The title of a statute passed in 
the ninth year of Edward II for the purpose of adjusting 
and settling the great questions of cognizance then exist
ing between the ecclesiastical and temporal courts. 
Articles of the Navy. Articles (statutes) for the govern
ment of the Navy. 
Articles of the peace. In English law, a complaint 
made or exhibited to a court by a person who makes 
oath that he is in fear of death or bodily harm from 
some one who has threatened or attempted to do him 
InjUry. The court may thereupon order the person 
complained of to find sureties for the peace, and, in 
default, may commit him to prison. This is known as 
"being bound over to keep the peace". Such articles 
were formerly issued in the High Court; but since 1938 
the procedure has only been available in courts of sum
mary jurisdiction. Now covered by Magistrates' Courts 
Act, 1980, §§ 115, 11 6. 
Articles of union. In English law, articles agreed to, 
A.D. 1707, by the parliaments of England and Scotland, 
for the union of the two kingdoms. They were twenty
five in number. 
Articles of war. Codes framed for the government of a 
nation's army or navy; e.g. Code of Military Justice. 
Articulated pleading. The stating in separate para
graphs, separately numbered, of each material fact of 
the petition, complaint, answer, etc. See e.g. Fed.R. 
Civil P. 10(b). 
Articulately / artiky;)btliy /. Article by article; by dis
tinct clauses or articles; by separate propositions. 
Articuli / artiky;)lay /. Lat. Articles; items or heads. A 
term applied to some old English statutes, and occasion
ally to treatises. 
Articuli cleri / artiky;)lay kliray /. "Articles of the cler
gy" (q. v.). See Circumspecte agatis. 
Articuli de moneta / artiky;)lay diy m;)niyt;)/. Articles 
concerning money, or the currency. The title of a 
statute passed in the twentieth year of Edward I. 
Articuli magnre chartre / artiky;)lay mregniy kartiy /. 
The preliminary articles, forty-nine in number, upon 
which the Magna Charta was founded. 
Articuli super chartas /artiky;)lay s(y)uwp;)r kart�s/. 
. Articles upon the charters. The title of a statute passed 
in the twenty-eighth year of Edward I, st. 3, confirming 
or enlarging many particulars in Magna Charta, and the 
Charta de Foresta, and appointing a method for enforc-

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113 
ing the observance of them, and for the punishment of 
offenders. 
Articulo mortis / artiky;)low mort;)s/. (Or more com
monly in articulo mortis.) At the point of death; in the 
article of death, which means at the moment of death; 
in the last struggle or agony. 
Artifice / art;)f;)s/. An ingenius contrivance or device of 
some kind, and, when used in a bad sense, it corresponds 
with trick or fraud. It implies craftiness and deceit, and 
imports some element of moral obliquity. See also 
Scheme or artifice to defraud; Sham. 
Artificer / artif;)s;)r / . One who buys goods in order to 
reduce them, by his own art or industry, into other 
forms, and then to sell them. 
One who is actually and personally engaged or em
ployed to do work of a mechanical or physical character, 
not including one who takes contracts for labor to be 
performed by others, i.e. a mechanic or workman as 
contrasted from the employer of such. One who is 
master of his art, and whose employment consists chief
ly in manual labor. A craftsman; an artisan. 
Artificial. As opposed to "natural", means created or 
produced by man. California Casualty Indemnity Ex
change v. Industrial Accident Commission of California, 
13 Cal.2d 529, 90 P.2d 289. Created by art, or by law; 
existing only by force of or in contemplation of law. 
Humanly contrived. A will or contract is described as 
"artificially" drawn if it is couched in apt and technical 
phrases and exhibits a scientific arrangement. 
Artificial force. In patent law, a natural force so trans
formed in character or energies by human power as to 
possess new capabilities of action; this transformation of 
a natural force into a force practically new involves a 
true inventive act. 
Artificial insemination. Method by which a female is 
impregnated through injection of semen from a donor 
other than her husband; and other than through sexual 
intercourse. 
Artificially developed water. Artificially developed 
water, to which one may acquire right superior to adju
dicated rights of earlier appropriators of natural waters 
of stream into which he turns it, is water produced and 
contributed by him, which would not have reached 
stream if left to flow in accordance with natural laws. 
In re Nix, 96 Colo. 540, 45 P.2d 176, 178. 
Artificial persons. Persons created and devised by hu
man laws for the purposes of society and government, as 
distinguished from natural persons. Corporations are 
examples of artificial persons. 
Artificial presumptions. Also called "legal presump
tions;" those which derive their force and effect from 
the law, rather than their natural tendency to produce 
belief. See Presumption. 
Artificial succession. The succession between predeces
sors and successors in a corporation aggregate or sole. 
Artificial water course. See Water course. 
ASCENT 
Artisan. One skilled in some kind of trade, craft, or art 
requiring manual dexterity; e.g. a carpenter, plumber, 
tailor, mechanic. 
Artisan's lien. A possessory lien given to a person who 
has made improvements and added value to another 
person's personal property as security for payment for 
services performed. The statutory right of an artisan to 
keep possession of the object that he has worked on until 
he has been paid for such labor. 
Art, words of. Words used in a technical sense; words 
scientifically fit to carry the sense assigned them. 
A rubro ad nigrum / ey ruwbrow red naygr;)m/. Lat. 
From the red to the black; from the rubric or title of a 
statute (which, anciently, was in red letters), to its body, 
which was in the ordinary black. 
Arura / ;)rur;)/. An old English law term, signifying a 
day's work in plowing. 
AS or A/S or AI s. Account sales; also after sight, at 
sight. 
As. Lat. In the Roman and civil law, a pound weight; 
and a coin originally weighing a pound, (called also 
"l ibra") divided into twelve parts, called "uncire". The 
parts were reckoned as follows: uncia, 1 ounce; sextans, 
2 ounces; triens, 3 ounces; quadrans, 4 ounces; quin
cunx, 5 ounces; semis, 6 ounces; septunx, 7 ounces; bes, 
8 ounces; dodrans, 9 ounces; dextans, 10 ounces; deunx, 
11 ounces. Frequently applied in the civil law to inheri
tances; the whole inheritance being termed "as", and its 
several proportionate parts "sextans", "quadrans" , etc. 
The term "as", and the multiples of its uncire, were also 
used to denote the rates of interest. 2 Bl.Comm. 462, 
note m. 
Any integral sum, subject to division in certain pro
portions. 
As. Used as an adverb, etc., means like, similar to, of the 
same kind, in the same manner, in the manner in 
which. It may also have the meaning of because, since, 
or it being the case that; in the character or under the 
name of with significance of in degree; to that extent; 
so far. 
As against; as between. These words contrast the 
relative position of two persons, with a tacit reference to 
a different relationship between one of them and a third 
person. For instance, the temporary bailee of a chattel 
is entitled to it as between himself and a stranger, or as 
against a stranger; reference being made by this form of 
words to the rights of the bailor. 
A savoir. To wit. 
Ascend. To go up; to pass up or upwards; to go or pass 
in the ascending line. 
Ascendants. Persons with whom one is related in the 
ascending line; one's parents, grandparents, great
grandparents, etc. 
Ascent. Passage upward; the transmission of an estate 
from the ancestor to the heir in the ascending line.

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ASCERTAIN 
Ascertain. To fix; to render certain or definite; to 
estimate and determine; to clear of doubt or obscurity. 
To insure as a certainty. To find out by investigation, 
U. S. v. Carver, 260 U.S. 482, 43 S.Ct. 181, 182, 67 L.Ed. 
361. Sometimes it means to "assess"; or to "hear, try, 
and determine". 
Ascertained as aforesaid. Manner theretofore pre
scribed. 
Ascriptitius (or ascripticius) / reskriptish(iy )�s/ . In Ro
man law, a foreigner who had been registered and 
naturalized in the colony in which he resided. 
Asexualization. See Vasectomy. 
Aside. On one side; apart. To set aside ; to annul; to 
make void. 
As is. A sale of goods by sample "as is" requires that the 
goods be of the kind and quality represented, even 
though they be in a damaged condition. U.C.C. § 2-313. 
Use of expression in sales agreement that goods are sold 
"as is" implies that buyer takes the entire risk as to the 
quality of the goods involved and he must trust to his 
own inspection. Implied and express warranties are 
excluded in sales of goods "as is". U.C.C. § 2-316. 
Ask. Demand, request, solicit, petition, appeal, apply 
for, move for, pray for. 
Asking price. The price at which a seller lists his 
property for sale. Generally connotes a willingness to 
sell for less than the listed or asking price. May be 
applied to both real and personal property for sale 
though more commonly used in sales of real estate. 
As per. A term which is not susceptible of literal trans
lation, but which is commonly understood to mean, "in 
accordance with", or "in accordance with the terms of', 
or "as by the contract authorized". 
Aspersions / �sp�rzh�nz/. Term may mean the making 
of calumnious report or may mean nothing more than 
criticism or censure. 
Asphyxia /resfiksiy�/. Apparent death, suspended an
imation, in living organism due to deficiency of oxygen 
and excess of carbon dioxide in the blood. 
Asphyxia carbonica / resfiksiy� karb6n�k�/. A suffoca
tion from inhalation of coal gas, water gas, or carbon 
monoxide. 
Asphyxiation / �sfiksiyeysh�n/. A state of asphyxia. 
Asportation / resp�rteysh�n/ . The removal of things 
from one place to another. The carrying away of some
thing; in kidnapping, the carrying away of the victim; 
in larceny, the carrying away of the victim's property. 
The carrying away of goods; one of the circumstances 
requisite to constitute the offense of larceny. The dis
tance away which the property must be moved to consti
tute the crime need not be substantial; a slight distance 
will do. Smith v. United States, C.A.Nev., 291 F.2d 220. 
But the entire property must be moved. 
Asportation was an essential element of common-law 
kidnapping. 
114 
Asportavit /resp�rteyv�t/. He carried away. Sometimes 
used as a noun to denote a carrying away. An "aspor
tavit of personal chattels". 
ASPR. Armed Services Procurement Regulations. See 
also Federal Acquisition Regulations. 
ASR. Accounting Series Release. 
Assart /�sart/. In English law, the offense committed in 
the forest, by pulling up the trees by the roots that are 
thickets and coverts for deer, and making the ground 
plain as arable land. It differs from waste, in that 
waste is the cutting down of coverts which may grow 
again, whereas assart is the plucking them up by the 
roots and utterly destroying them, so that they can 
never afterward grow. This is not an offense if done 
with license to convert forest into tillage ground. 
Assart rents. Rents paid to the Crown for assorted 
lands. 
Assassination / �sres�neysh�n/. Murder committed, 
usually, though not necessarily, for hire, without direct 
provocation or cause of resentment given to the murder
er by the person upon whom the crime is committed; 
though an assassination of a public figure might be done 
by one acting alone for personal, social or political 
reasons. It is a federal crime, punishable as a homicide, 
to assassinate the President, President-elect, Vice Presi
dent, or if there is no Vice President, the officer next in 
order of succession to the office of President, the Vice
President-elect, or any individual who is acting as Presi
dent under the Constitution. 18 U.S.C.A. § 17 51. In 
addition, advocating the overthrow of the government 
by assassination of any officer of such government is a 
crime under 18 U.S.C.A. § 2385. 
Assault. Any willful attempt or threat to inflict injury 
upon the person of another, when coupled with an 
apparent present ability so to do, and any intentional 
display of force such as would give the victim reason to 
fear or expect immediate bodily harm, constitutes an 
assault. An assault may be committed without actually 
touching, or striking, or doing bodily harm, to the per
son of another. State v. Murphy, 7 Wash.App. 505, 500 
P.2d 1276, 1281. 
Frequently used to describe illegal force which is 
technically a battery. For crime of assault victim need 
not be apprehensive of fear if the outward gesture is 
menacing and defendant intends to harm, though for 
tort of assault, element of victim's apprehension is re
quired. Com. v. Slaney, 345 Mass. 135, 185 N.E.2d 919. 
It is unlawful attempt to commit a battery. People v. 
Lopez, 271 C.A.2d 754, 77 Cal.Rptr. 59, 63. 
In some jurisdictions degrees of the offense are estab
lished as first, second and even third degree assault. 
See also Aggravated assault; Aggravated battery; Bat
tery; Conditional assault; Felonious assault; Fresh com
plaint rule; Malicious assault with deadly weapon. 
Aggravated assault. One committed with the intention 
of committing some additional crime; or one attended 
with circumstances of peculiar outrage or atrocity. This

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115 
class includes assault with a dangerous or deadly weap
on (q.v.). 
A person is guilty of aggravated assault if he: (a) 
attempts to cause serious bodily injury to another, or 
causes such injury purposely, knowingly or recklessly 
under circumstances manifesting extreme indifference 
to the value of human life; or (b) attempts to cause or 
purposely or knowingly causes bodily injury to another 
with a deadly weapon. Model Penal Code, § 211.1. 
Simple assault. An assault unaccompanied by any cir
cumstances of aggravation. A person is guilty of simple 
assault if he (a) attempts to cause or purposely, knowing
ly or recklessly causes bodily injury to another; or (b) 
negligently causes bodily injury to another with a dead
ly weapon; or (c) attempts by physical menace to put 
another in fear of imminent serious bodily injury. Mod
el Penal Code, § 211.1. An unlawful attempt coupled 
with present ability to commit violent injury on person 
of another. People v. Gholston, 164 Colo. 58, 432 P.2d 
636, 637. See also Menace. 
Assault and battery. Any unlawful touching of another 
which is without justification or excuse. It is both a 
tort, Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 
297, as well as a crime, Scruggs v. State, Ind.App., 317 
N.E.2d 807, 809. The two crimes differ from each other 
in that battery requires physical contact of some sort 
(bodily injury or offensive touching), whereas assault is 
committed without physical contact. In most jurisdic
tions, statutes have created aggravated assaults and 
batteries, punishable as felonies, and worded in various 
ways. See Battery. 
Assault with dangerous or deadly weapon. An un
lawful attempt or offer to do bodily harm without justifi
cation or excuse by use of any instrument calculated to 
do harm or cause death. An aggravated form of assault 
as distinguished from a simple assault; e.g. pointing 
loaded gun at one is an assault with dangerous weapon. 
State v. Gregory, 108 Ariz. 445, 501 P.2d 387, 390. 
Assault with intent to commit manslaughter. An 
unlawful assault committed in such manner and with 
such means as would have resulted in commission of 
crime of manslaughter if person assaulted had died from 
effects of assault. 
Assault with intent to commit murder. To constitute 
this assault, specific intent to kill, actuated by malice 
aforethought, must concur. Perez v. State, 11 4 Tex. 
Cr.R. 473, 22 S.W.2d 309, 310. 
Assault with intent to commit rape. Crime is consti
tuted by the existence of the facts which bring the 
offense within the definition of an assault, coupled with 
an intention to commit the crime of rape. Steptoe v. 
State, 134 Tex.Cr.R. 320, 115 S.W.2d 916, 917. 
Assay / :;)sey / resey / . The proof or trial, by chemical ex
periments, of the purity or fineness of metals; particu
larly of the precious metals, gold and silver. West v. 
State, 140 Tex.Cr.R. 493, 145 S.W.2d 580, 584. Exami
nation and determination as to characteristics (as 
weight, measure, or quality). 
ASSENT 
Assayer. One whose business it is to make assays of the 
precious metals. West v. State, 140 Tex.Cr.R. 493, 145 
S.W.2d 580, 584. 
Assayer of the king. An officer of the royal mint, 
appointed by St. 2 Hen. VI, c. 12, who received and 
tested the bullion taken in for coining; also called 
"assayator regis. " 
Assay office. The U.S. Assay Office, under the Bureau 
of the Mint, is responsible for the process of assaying 
gold and silver, required by government, incidental to 
maintaining the coinage. 
Assecurare / :;)seky:;)reriy /. To assure, or make secure by 
pledges, or any solemn interposition of faith. 
Assecuration /:;)seky:;)reysh:;)n/. In European law, assur
ance; insurance of a vessel, freight, or cargo. 
Assecurator /:;)seky:;)reyt:;)r/. In maritime law, an insur
er. 
Assemblage. A collection of persons. Also the act of 
coming together. Public address upon public grounds. 
In re Whitney, 57 Cal.App.2d 167, 134 P.2d 516, 521. 
Combining of adjoining lots into single large lot. 
Assembly. The concourse or meeting together of a con
siderable number of persons at the same place. Also the 
persons so gathered. 
Political assemblies are those required by the constitu
tion and laws: for example, the general assembly. 
The lower or more numerous branch of the legislature 
in many of the states (e.g. N.Y.) is also called the 
"Assembly" or "House of Assembly." See also House of 
Representatives. 
Popular assemblies are those where the people meet to 
deliberate upon their rights; these are guaranteed by 
the Constitution. See Assembly, right of. 
Assemblyman. Member of state Assembly (q. v.). 
Assembly, right of. Right guaranteed by First Amend
ment, U.S. Constitution, allowing people to meet for any 
purpose connected with government; it encompasses 
meeting to protest governmental policies and actions 
and the promotion of ideas. See Un lawful assembly. 
Assembly, unlawful. The congregating of people which 
results in antisocial behavior of the group, e.g. blocking 
a sidewalk, obstructing traffic, littering streets; but, a 
law which makes such congregating a crime because 
people may be annoyed is violative of the right of free 
assembly. Coates v. City of Cincinnati, 402 U.S. 611, 91 
S.Ct. 1686, 29 L.Ed.2d 214. See Unlawful assembly. 
Assent. Compliance; approval of something done; a 
declaration of willingness to do something in compliance 
with a request; acquiescence; agreement. To approve, 
ratify and confirm. It implies a conscious approval of 
facts actually known, as distinguished from mere ne
glect to ascertain facts. Sometimes it is equivalent to 
"authorize". See Approval; Approve; Consent. 
Express assent. That which is openly declared.

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ASSENT 
Implied assent. That which is presumed by law, and 
proved by conduct of the parties. See Consent (Implied 
consent). 
Mutual assent. The meeting of the minds of both or all 
the parties to a contract; the fact that each agrees to all 
the terms and conditions, in the same sense and with 
the same meaning as the others. 
Assert. To state as true; declare; maintain. 
Assertory covenant I ::ls:}rt::lriy k:}v::ln::lnt/. One which 
affirms that a particular state of facts exists; an affirm
ing promise under seal. See Affirmation; Jurat. 
Assertory oath l::ls:}rt::lriy owOI. See Oath. 
Assess I ::lses/. To ascertain; fix the value of. To fix the 
amount of the damages or the value of the thing to be 
ascertained. To impose a pecuniary payment upon per
sons or property. To ascertain, adjust, and settle the 
respective shares to be contributed by several persons 
toward an object beneficial to them all, in proportion to 
the benefit received. To tax. 
In connection with taxation of property, means to 
make a valuation and appraisal of property, usually in 
connection with listing of property liable to taxation, 
and implies the exercise of discretion on the part of 
officials charged with duty of assessing, including the 
listing or inventory of property involved, determination 
of extent of physical property, and placing of a value 
thereon. To adjust or fix the proportion of a tax which 
each person, of several liable to it, has to pay; to 
apportion a tax among several; to distribute taxation in 
a proportion founded on the proportion of burden and 
benefit. To calculate the rate and amount of taxes. To 
levy a charge on the owner of property for improve
ments thereto, such as for sewers or sidewalks. 
"Access" is sometimes used as synonymous with 
"levy". 
See also Assessment. 
Assessable insurance. Insurance policy under which 
insured is liable for additional premium if losses are 
unusually large. 
Assessable stock. Stock where the stockholder may 
have to pay more than his original investment if corpo
rate affairs so require. 
Assessed. Term is equivalent to "imposed." To value or 
appraise. Abrams v. City and County of San Francisco, 
48 Cal.App.2d 1, 11 9 P.2d 197, 199. 
Assessed valuation. Value on each unit of which a 
prescribed amount must be paid as property taxes. The 
worth or value of property established by taxing author
ities on the basis of which the tax rate is applied. 
Commonly, however, it does not represent the true or 
market value of the property. 
Assessment. In a general sense, the process of ascer
taining and adjusting the shares respectively to be con
tributed by several persons towards a common beneficial 
object according to the benefit received. A valuation or 
a determination as to value of property. It is often used 
in connection with assessing property taxes or levying of 
116 
property taxes. Also the amount assessed. See also 
Assess; Equalization. 
Corporations. Installments of the money subscribed for 
shares of stock, called for from the subscribers by the 
directors, from time to time as the company requires 
money, are called "assessments," or, in England, "calls." 
While the terms "call" and "assessment" are generally 
used synonymously, the latter term applies with pecu
liar aptness to contributions above the par value of stock 
or the subscription liability of the stockholders; whereas 
"call" or "installments" means action of the board of 
directors demanding payment of all or portion of unpaid 
subscriptions. 
Damages. Fixing the amount of damages to which the 
successful party in a suit is entitled after judgment has 
been taken; also the name given to the determination of 
the sum which a corporation proposing to take lands for 
a public use must pay in satisfaction of the demand 
proved or the value taken. 
Insurance. An apportionment made in general average 
upon the various articles and interests at risk, according 
to their value at the time and place of being in safety, 
for contribution for damage and sacrifices purposely 
made, and expenses incurred for escape from impending 
common peril. 
A sum specially levied in mutual benefit insurance 
upon a fixed and definite plan within the limit of the 
company's or society's fundamental law of organization 
to pay losses, or losses and expenses incurred, being to a 
certain degree substantially the equivalent of premiums. 
The periodical demands made by a mutual insurance 
company, under its charter and by-laws, upon the mak
ers of premium notes, are also denominated "assess
ments." Meaning "premiums," Ancient Order of Unit
ed Workmen of Kansas v. Hobbs, 136 Kan. 708, 18 P.2d 
561, 562; and being the consideration for the insurance 
contracts. 
Special· assessment. An assessment in the nature of a 
tax levied upon property according to benefits conferred 
on the property. Davies v. City of Lawrence, 218 Kan. 
551, 545 P.2d 111 5, 1120. A levy upon the owners of 
property adjacent to a public improvement (e.g., side
walks) to defray the capital cost thereof. A tax, intend
ed to offset cost of local improvements such as sewer, 
water and streets, which is selectively imposed upon 
beneficiaries. Dosedel v. City of Ham Lake, Minn.App., 
414 N.W.2d 751, 755. It differs from a general tax in 
that it is levied fc 1 specific purpose and in an amount 
proportioned to l.he direct benefit of the property as
sessed. City of Plymouth v. Elsner, 28 Wis.2d 102, 135 
N.W.2d 799, 803. 
Persons convicted of federal crimes are required to 
pay special assessments under 18 U.S.C.A. § 3013. 
Taxation. The listing and valuation of property for the 
purpose of apportioning a tax upon it, either according 
to value alone or in proportion to benefit received. 
Simikins v. City of Spartanburg, 269 S.C. 243, 237 S.E.2d 
69, 70. Also determining the share of a tax to be paid 
by each of many persons; or apportioning the entire tax

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117 
to be levied among the different taxable persons, estab
lishing the proportion due from each. Northwestern 
Imp. Co. v. Henneford, 184 Wash. 502, 51 P.2d 1083, 
1085. It fixes the liability of the taxpayer and ascer
tains the facts and furnishes the data for the proper 
preparation of the tax rolls. Dallas Joint Stock Land 
Bank of Dallas v. State, Tex.Civ.App., 118 S.W.2d 941, 
942. 
The process whereby the Internal Revenue Service 
imposes an additional tax liability. If, for example, the 
IRS audits a taxpayer's income tax return and finds 
gross income understated or deductions overstated, it 
will assess a deficiency in the amount of the tax that 
should have been paid in light of the adjustments made. 
See also, Deficiency; Deficiency assessment; Jeopardy 
assessment. 
Assessment base. Total assessed value of all property 
in an assessment district. 
Assessment company. In life insurance, a company in 
which a death loss is met by levying an assessment on 
the surviving members of the association. 
Assessment contract. One wherein the payment of the 
benefit is in any manner or degree dependent on the 
collection of an assessment levied on persons holding 
similar contracts. See also Assessment insurance. 
Assessment district. In taxation, any subdivision of 
territory, whether the whole or part of any municipali
ty, in which by law a separate assessment of taxable 
property is made by the officers elected or appointed 
therefor. 
Assessment for benefits. A burden levied under the 
power of taxation. Jackson v. City of Lake Worth, 156 
Fla. 452, 23 So.2d 526, 528. See Assessment. 
Assessment fund. The assessment fund of a mutual 
benefit association is the balance of the assessments, less 
expenses, out of which beneficiaries are paid. 
Assessment insurance. Exists when benefit to be paid 
is dependent upon collection of such assessments as may 
be necessary for paying the amounts to insured. Keen 
v. Bankers Mut. Life Co., 230 Mo.App. 1072, 93 S.W.2d 
85, 90. Type of mutual insurance where the policyhold
ers are assessed whenever there is a loss. 
Assessment list. The list of taxable persons and proper
ty furnished by the assessor to the board of equalization, 
board of assessment, or similar body. See Assessment 
roll. 
Assessment period. Means taxable period. Johnson 
City v. Clinchfield R. Co., 163 Tenn. 332, 43 S.W.2d 386, 
387. 
Assessment ratio. For purposes of taxation of property 
is the ratio of assessed value to fair market value. 
Campbell Chain Co. of Cal. v. Alameda County, 12 
C.A.3d 248, 90 Cal.Rptr. 501, 504. 
Assessment roll. In taxation, the list or roll of taxable 
persons and property, completed, verified, and deposited 
by the assessors. 
ASSETS 
Assessment work. Under the mining laws of the Unit
ed States, the holder of an unpatented mining claim on 
the public domain is required, in order to hold his claim, 
to do labor or make improvements upon it to the extent 
of at least one hundred dollars in each year. 30 U.S. 
C.A. § 28. This is commonly called by miners "doing 
assessment work." 
Assessor. An officer chosen or appointed to appraise, 
value, or assess property. A person learned in some 
particular science or industry, who sits with the judge 
on the trial of a cause requiring such special knowledge 
and gives his advice. 
Asset Depreciation Range (ADR). The range of depre
ciable lives allowed by the Internal Revenue Service for 
a specified depreciable asset. The ADR system applies 
to assets placed in service after 1970 and before 1980, at 
which time the ADR system was replaced by the Accel
erated Cost Recovery System (ACRS). However, the 
ADR system has been revived under The Tax Reform 
Act of 1986 and is now used to assign class lives to assets 
depreciated under Modified Accelerated Cost Recovery 
System (MACRS). See Accelerated Cost Recovery Sys
tem. 
Asset dividend. See Dividend. 
Assets / resets/. Property of all kinds, real and personal, 
tangible and intangible, including, inter alia, for certain 
purposes, patents and causes of action which belong to 
any person including a corporation and the estate of a 
decedent. The entire property of a person, association, 
corporation, or estate that is applicable or subject to the 
payment of his or her or its debts. 
See also Dead asset; Marshalling assets. 
Accrued assets. Assets arising from revenues earned 
but not yet due. 
Assets entre mains. L. Fr. Assets in hand; assets in the 
hands of executors or administrators, applicable for the 
payment of debts. 
Assets per descent. That portion of the ancestor's estate 
which descends to the heir, and which is sufficient to 
charge him, as far as it goes, with the specialty debts of 
his ancestors. 
Bankruptcy. The property or effects of debtor in bank
ruptcy proceedings available for payment of his debts. 
Capital assets. For income tax purposes, a capital asset 
is defined as all property held by a taxpayer (e.g. house, 
car, stocks, bonds), except for certain assets listed in 
I.R.C. § 1221. Under the tax laws however, a given 
asset may be treated as a capital asset for one purpose, 
and as an ordinary asset for another. 
Broadly speaking, all assets are capital except those 
specifically excluded by Internal Revenue Code. Major 
categories of non-capital assets include: property held 
for resale in the normal course of business (i.e. invento
ry), trade accounts and notes receivable, depreciable 
property and real estate used in a trade or business (i.e. 
I.R.C. "§ 1231 assets"). I.R.C. § 1221.

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ASSETS 
Commercial assets. The aggregate of available property, 
stock in trade, cash, etc., belonging to a merchant or 
mercantile company. 
Current assets. Assets readily convertible into cash, e.g. 
marketable securities, notes, inventories, accounts re
ceivable. See also Quick assets, below. 
Equitable assets. All assets which are chargeable with 
the payment of debts or legacies in equity, and which do 
not fall under the description of legal assets. Those 
portions of the property which by the ordinary rules of 
law are exempt from debts, but which the testator has 
voluntarily charged as assets, or which, being non-exis
tent at law, have been created in equity. They are so 
called because they can be reached only by the aid and 
instrumentality of a court of equity, and because their 
distribution is governed by a different rule from that 
which governs the distribution of legal assets. 
Fixed assets. Assets of a permanent or long-term nature 
used in operation of business and not intended for sale; 
e.g. property, plant, equipment. 
Frozen assets. Assets which are difficult to convert into 
cash (e.g. real estate for which there is no market); also, 
assets which cannot be used because of legal restriction. 
Intangible assets. Assets lacking physical existence; e.g. 
patents, trademarks, organization costs, goodwill. 
Legal assets. See Legal assets. 
Liquid assets. See Current assets, above. 
Net assets. Excess of assets over liabilities. 
Net operating assets. The excess of cash and other 
assets which will be converted into cash in near future 
through normal operation over current liabilities. 
Nominal assets. Assets whose value is difficult to deter
mine, e.g. a judgment or claim; also, book value of asset 
in contrast to actual value. 
Personal assets. Chattels, money, and other personal 
property belonging to a bankrupt, insolvent, or decedent 
estate, which go to the assignee or executor. See also 
Personal effects. 
Probate assets. Property of a decedent available for the 
payment of debts and legacies. The estate coming to the 
heir or personal representative which is chargeable, in 
law or equity, with the obligations which such heir or 
representative is required, in his representative capaci
ty, to discharge. 
Quick assets. Accounting term used to describe cash 
and receivables, including notes and sometimes market
able securities, which will be converted into cash as part 
of normal operations. See also Current assets, above. 
Real assets. Land and real estate. 
Wasting assets. Assets exhausted through use or loss of 
value; e.g. patents, oil wells, coal deposits. 
Asseveration / :lsev:lreysh:m/. An affirmation; a posi
tive assertion; a solemn declaration. This word is sel
dom, if ever, used for a declaration made under oath, 
but denotes a declaration accompanied with solemnity 
118 
or an appeal to conscience, whereas by an oath one 
appeals to God as a witness of the truth of what one 
says. 
Assign. To transfer, make over, or set over to another. 
To appoint, allot, select, or designate for a particular 
purpose, or duty. To point at, or point out; to set forth, 
or specify; to mark out or designate; to particularize, as 
to assign errors on a writ of error; to assign breaches of 
a covenant. See also Assignment. 
Assignability. Quality or legal attribute which permits 
a thing to be transferred or negotiated. 
Assignable. See Assignability. 
Assignable lease. A lease which contains a provision 
permitting its transfer by lessee or one which is silent as 
to lessee's right to transfer his interest and hence a 
lease which may be transferred. Assignment of lease is 
distinguishable from sublease to extent, inter alia, that 
in assigning, lessee transfers his entire estate in the 
demised premises, whereas in sublease the sublessee 
acquires something less than the lessee's entire interest. 
Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 
461 P.2d 415, 417 See also Assignment (Assignment of 
lease). 
Assignation house. A bawdy house; a house of prosti
tution. 
Assignatus utitur jure auctoris / res:lgneyt:ls yliwt:lt:lr 
juriy oktor:ls/. An assignee uses the right of his princi
pal; an assignee is clothed with the rights of his princi
pal. 
Assigned account. Pledge of account receivable to bank 
or factor as security for loan. 
Assigned counsel. An attorney appointed by court to 
represent an indigent person; most commonly in crimi
nal cases. See V.S. Constitution, Sixth Amendment 
(right to counsel); Fed.R.Crim.P. 44; 18 V.S.C.A. 
§ 3006A. See also Assistance of counsel; Counsel, right 
to. 
Assigned risk. As relating to motor vehicles nuisance, a 
risk which is not ordinarily acceptable to insurers but 
for which coverage is required by state statute and 
which is, therefore, assigned to insurers participating in 
an assigned risk pool. 
Assigned risk plan. In those states having compulsory 
motor vehicle insurance laws (i.e. financial responsibili
ty laws), such statutes provide that persons who are 
otherwise unable to buy coverage (because of, e.g., poor 
driving records) may secure insurance through a statu
tory plan under which insurers are compelled to write 
coverage for such persons. The insurance is handled 
through a pool of insurers. 
See Financial responsibility acts. 
Assignee / res:lgniy / asayniy /. A person to whom an as
signment is made; grantee. 
Vnder V.C.C., assignee is subject to all defenses which 
may be asserted against assignor by account debtor. 
V.C.C. § 9-318.

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119 
Assignee in fact is one to whom an assignment has been 
made in fact by the party having the right. . 
Assignee in law is one in whom the law vests the right; 
as an executor or administrator. 
Assignee clause. A provision in Judiciary Act of 1789 
preventing one who could not show diversity of citizen
ship to bring suit in Federal Court from assigning his 
claim to one who had the required diversity; modified in 
28 U.S.C.A. § 1359 to prevent only assignment made 
collusively to invoke diversity jurisdiction. See Caribbe
an Mills, Inc. v. Kramer, C.A.5th, 392 F.2d 387. 
Assignment. The act of transferring to another all or 
part of one's property, interest, or rights. A transfer or 
making over to another of the whole of any property, 
real or personal, in possession or in action, or of any 
estate or right therein. It includes transfers of all kinds 
of property (Higgins v. Monckton, 28 Cal.App.2d 723, 83 
P.2d 516, 519), including negotiable instruments. The 
transfer by a party of all of its rights to some kind of 
property, usually intangible property such as rights in a 
lease, mortgage, agreement of sale or a partnership. 
Tangible property is more often transferred by posses
sion and by instruments conveying title such as a deed 
or a bill of sale. See also Collateral assignment. 
Assignment for benefit of creditors. A general assign
ment for benefit of creditors is transfer of all or substan
tially all of debtor's property to another person in trust 
to collect any money owing to debtor, to sell property, to 
distribute the proceeds to his creditors and to return the 
surplus, if any, to debtor. Under Bankruptcy Act of 
1898, such assignment was an "act of bankruptcy" if 
made within 4 months of bankruptcy. Bankruptcy Act 
(1898) § 3a(4). See also Preferential assignment. 
Assignment of account. Transfer to assignee giving him 
a right to have moneys when collected applied to pay
ment of his debt. Nanny v. H. E. Pogue Distillery Co., 
56 Cal.App.2d 817, 133 P.2d 686, 688. 
Assignment of counsel. See Assigned counsel; Assist
ance of counsel; Counsel, right to. 
Assignment of dower. The act by which the share of a 
widow in her deceased husband's real estate is ascer
tained and set apart to her. 
Assignment of error. See Error. 
Assignment of income. A procedure whereby a taxpayer 
attempts to avoid the recognition of income by assigning 
the property that generates the income to another. 
Such a procedure will not avoid the recognition of in
come by the taxpayer making the assignment if it can be 
said that the income was earned at the point of the 
transfer. In this case, usually referred to as an anticipa
tory assignment of income, the income will be taxed to 
the person who earns it. 
Assignment of lease. Such occurs where lessee transfers 
entire unexpired remainder of term created by lease as 
distinguished from sublease which transfers only part of 
remainder. Dayenian v. American Nat. Bank and Trust 
ASSISA ARMORUM 
Co. of Chicago, 91 Ill.App.3d 622, 47 Ill. Dec. 83, 85, 414 
N.E.2d 1199, 1201. See also Assignable lease. 
Assignment of wages. Transfer of right to collect wages 
from wage earner to creditor; generally, statutes govern 
the extent to which such assignment may be made. 
Assignment pro tanto. Where an order is drawn upon a 
third party and made payable out of a particular fund 
then due or to become due to the drawer, the delivery of 
the order to the payee operates as an assignment pro 
tanto of the fund. Doyle v. East New York Sav. Bank, 
44 N.Y.S.2d 318, 323. 
Assignment with preferences. An assignment for the 
benefit of creditors, with directions to the assignee to 
prefer a specified creditor or class of creditors, by paying 
their claims in full before the others receive any divi
dend, or in some other manner. More usually termed a 
"preferential assignment." Such assignments formerly 
constituted an "act of bankruptcy" (q. v.). See Assign
ment for benefit of creditors, above. 
Foreign assignment. An assignment made in a fo reign 
country, or in another state. 
General assignment. An assignment made for the bene
fit of all the assignor's creditors, instead of a few only; 
or one which transfers the whole of his estate to the 
assignee, instead of a part only. 
Voluntary assignment. An assignment for the benefit of 
his creditors made by a debtor voluntarily, as distin
guished from a compulsory assignment which takes 
place by operation of law in proceedings in bankruptcy. 
Such constitutes an assignment of a debtor's property in 
trust to pay his debts generally, in distinction from a 
transfer of property to a particular creditor in payment 
of his demand, or to a conveyance by way of collateral 
security or mortgage. 
Assignor / �sayn�r / . A person who assigns or transfers 
property to another. See Grantor. 
Assignor estoppel. In patent law this doctrine pre
cludes one who has assigned rights in a patent from 
later contending that what he has assigned was invalid. 
Diamond Scientific Co. v. Ambico Inc., C.A.Fed., 848 
F.2d 1220. 
Assigns. Assignees; those to whom property is, will, or 
may be assigned. Used e.g. in the phrase, in deeds, 
"heirs, administrators, and assigns to denote the assign
able nature of the interest or right created." It general
ly comprehends all those who take either immediately 
or remotely from or under the assignor, whether by 
conveyance, devise, descent, or act of law. 
Assisa /�sayz� /. In old English and Scotch law, an 
assize or assise; a kind of jury or inquest; a writ; a 
sitting of a court; an ordinance or statute; a fixed or 
specific time, number, quantity, quality, price, or weight; 
a tribute, fine, or tax; a real action; the name of a writ. 
See Assize. 
Assisa armorum / �sayz� arm6r�m/. Assize of arms. A 
statute or ordinance requiring the keeping of arms for 
the common defense.

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ASSISA CADERE 
Assisa cadere / �sayz� kred�riy /. To fail in the assize; 
i.e., to be nonsuited. 3 BI.Comm. 402. 
Assisa cadit in juratum / �sayz� kred�t �n j�reyt�m /. 
The assize falls (turns) into a jury; hence to submit a 
controversy to trial by jury. 
Assisa continuanda /�sayz� k�ntinyuwrend�/. An an
cient writ addressed to the justices of assize for the 
continuation of a cause, when certain facts put in issue 
could not have been proved in time by the party alleging 
them. 
Assisa de Clarendon / �sayz� diy klrer�nd�n/. The as
size of Clarendon. A statute or ordinance passed in the 
tenth year of Henry II, by which those that were ac
cused of any heinous crime, and not able to purge 
themselves, but must abjure the realm, had liberty of 
forty days to stay and try what succor they could get of 
their friends towards their sustenance in exile. 
Assisa de foresta / �sayz� diy forest�/. Assize of the 
forest; a statute concerning orders to be observed in the 
royal forests. 
Assisa de mensuris /�sayz� diy mens(y)6.r�s/. Assize of 
measures. A common rule for weights and measures, 
established throughout England by Richard I, in the 
eighth year of his reign. 
Assisa de nocumento / �sayz� diy noky�mentow /. An 
assize of nuisance; a writ to abate or redress a nuisance. 
Assisa de utrum / �sayz� diy y6.wtr�m/. An obsolete 
writ, which lay for the parson of a church whose prede
cessor had alienated the land and rents of it. 
Assisa friscre fortire / �sayz� friskiy f6rshiyiy /. Assize of 
fresh force, which see. 
Assisa mortis d'ancestoris / �sayz� m6rt�s dren
sest6r�s/. Assize of mort d'ancestor, which see. 
Assisa novre disseysinre / �sayz� n6wviy d�siyz�niy / . 
Assize of novel disseisin, which see. 
Assisa panis et cerevisire / �sayz� pren�s et s�r�vishiyiy / . 
Assize of bread and ale, or beer. The name of a statute 
passed in the fifty-first year of Henry III, containing 
regulations for the sale of bread and ale; sometimes 
called the "statute of bread and ale." 
Assisa proroganda /�sayz� prowrowgrend�/. An obso
lete writ, which was directed to the judges assigned to 
take assizes, to stay proceedings, by reason of a party to 
them being employed in the king's business. 
Assisa ultimre prresentationis / �sayz� �lt�miy pre
z�nteyshiy6wn�s/. Assize of darrein presentment (q.v.). 
Assisa venalium / �sayz� v�neyliy�m/. The assize of 
salable commodities, or of things exposed for sale. 
Assise. See Assize. 
Assist. To help; aid; succor; lend countenance or en
couragement to; participate in as an auxiliary� To 
contribute effort in the complete accomplishment of an 
ultimate purpose intended to be effected by those en
gaged. 
120 
Assistance, or (assistants) court of. See Court of assist
ants. 
Assistance of counsel. Sixth Amendment to Federal 
Constitution, guaranteeing accused in criminal prosecu
tion "assistance of counsel" for his defense, means effec
tive assistance, as distinguished from bad faith, sham, 
mere pretense or want of opportunity for conferences 
and preparation. Fed.R.Crim.P. 44; 18 U.S.C.A. 
§ 3006A; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 
792, 9 L.Ed.2d 799; Geders v. U. S., 425 U.S. 80, 96 S.Ct. 
1330, 47 L.Ed.2d 592. See Assigned counsel; Counsel, 
right to; Miranda Rule. 
Assistance, writ of. See Writ of assistance. 
Assistant. A deputy, aide, or subordinate; as an assist
ant assessor. One who stands by and aids or helps 
another. Ordinarily refers to employee whose duties 
are to help his superior, to whom he must look for 
authority to act. State ex reI. Dunn v. Ayers, 11 2 Mont. 
120, 113 P.2d 785, 788. 
Assisus / �sayz�s /. Rented or farmed out for a specified 
assise; that is, a payment of a certain assessed rent in 
money or provisions. 
Assize, or assise (obsolete) / �sayz/. An ancient species 
of court, consisting of a certain number of men, usually 
twelve, who were summoned together to try a disputed 
cause, performing the functions of a jury, except that 
they gave a verdict from their own investigation and 
knowledge and not upon evidence adduced. From the 
fact that they sat together (assideo), they were called the 
"assize." A court composed of an assembly of knights 
and other substantial men, with the baron or justice, in 
a certain place, at an appointed time. The verdict or 
judgment of the jurors or recognitors of assize. 3 Bl. 
Comm. 57, 59. 
In later English law, the name "assizes" or "assises" 
was given to the court, time, or place where the judges 
of assize and nisi prius, who were sent by special com
mission from the crown on circuits through the king
dom, proceeded to take indictments, and to try such 
disputed causes issuing out of the courts at Westminster 
as were then ready for trial, with the assistance of a 
jury from the particular county. These judges of assize 
were the successors of the ancient "justices in eyre." 
They sat by virtue of four separate authorities: (1) 
Commission of Oyer and Terminer, (2) of goal delivery, 
(3) of nisi prius, and (4) Commission of Peace. In 1971 
the Crown Court was established which superseded the 
criminal jurisdiction of courts of assize and all the 
jurisdiction of quarter sessions. The assize courts were 
accordingly abolished. 
Anything reduced to a certainty in respect to time, 
number, quantity, quality, weight, measure, etc. 
A species of writ, or real action, said to have been 
invented by Glanville, chief justice to Henry II, and 
having for its object to determine the right of possession 
of lands, and to recover the possession. 3 Bl.Comm. 184, 
185.

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121 
The whole proceedings in court upon a writ of assize. 
The verdict or finding of the jury upon such a writ. 3 
Bl.Comm. 57. 
See also Certificate of assize. 
Assize of Clarendon. See Assisa de Clarendon. 
Assize of darrein presentment. A writ of assize which 
formerly lay when a man or his ancestors under whom 
he claimed presented a clerk to a bene
fice, who was instituted, and afterwards, upon the next 
avoidance, a stranger presented a clerk and thereby 
disturbed the real patron. 3 Bl.Comm. 245. It has 
given way to the remedy by quare impedit. 
Assize of fresh force. In old English practice, a writ 
which lay by the usage and custom of a city or borough, 
where a man was disseised of his lands and tenements 
in such city or borough. It was called "fresh force," 
because it was to be sued within forty days after the 
party's title accrued to him. 
Assize of mort d 'ancestor. A real action which lay to 
recover land of which a person had been deprived on the 
death of his ancestor by the abatement or intrusion of a 
stranger. 3 Bl.Comm. 185. It was abolished by St. 3 & 
4 Wm. IV, c. 27. 
Assize of Northhampton. A re-enactment and enlarge
ment (117 6) of the Assise of Clarendon. 
Assize of novel disseisin. A writ of assize which lay for 
the recovery of lands or tenements, where the claimant 
had been lately disseised. 
Assize of nuisance. A writ of assize which lay where a 
nuisance had been committed to the complainant's free
hold; either for abatement of the nuisance or for dam
ages. 
Assize of the forest. A statute touching orders to be 
observed in the king's forests. 
Assize of utrum. A writ of assize which lay for a parson 
to recover lands which his predecessor had improperly 
allowed the church to be deprived of. 3 Bl.Comm. 257. 
An assize for the trial of the question of whether land 
is a lay fee, or held in frankalmoigne. 
Assize rents. The certain established rents of the free
holders and ancient copyholders of a manor; so called 
because they are assized, or made precise and certain. 
Grand assize. A peculiar species of trial by jury, intro
duced in the time of Henry II, giving the tenant or 
defendant in a writ of right the alternative of a trial by 
battel, or by his peers. Abolished by 3 & 4 Wm. IV, c. 
42, § 13. 3 Bl.Comm. 341. See Battel. 
Assizer / ;)sayz;)r /. An assessor; juror; an officer who 
has the care and oversight of weights and measures. 
Assiz�s de Jerusalem / ;)sayz;)z d;) j;)ruwz;)bm/. A code 
of feudal jurisprudence prepared by an assembly of 
barons and lords A.D. 1099, after the conquest of Jerusa
lem. It was compiled principally from the laws and 
customs of France. 
ASSOCIATION 
Assizors / ;)sayz;)rz/. In Scotch law, jurors; the persons 
who formed that kind of court which in Scotland was 
called an "assize," for the purpose of inquiring into and 
judging divers civil causes, such as perambulations, cog
nitions, molestations, purprestures, and other matters; 
like jurors in England. 
Associate. Signifies confederacy or union for a particu
lar purpose, good or ill. To join together, as e.g. part
ners. Partner or colleague. See Association. 
Having subordinate status; e.g. associate professor. 
An officer in each of the English courts of common 
law, appointed by the chief judge of the court, and 
holding his office during good behavior, whose duties 
were to superintend the entry of causes, to attend the 
sittings of nisi prius, and there receive and enter ver
dicts, and to draw up the posteas and any orders of nisi 
prius. The associates were later off icers of the Supreme 
Court of Judicature, and are styled "Masters of the 
Supreme Court". Duties of associates are now carried 
out by clerks in the Crown Office and Associates Depart
ment of the Central Office of the Supreme Court. 
Associate justices. Judges of courts, other than the 
presiding or chief justice. 
Associates in office. Those who are united in action; 
who have a common purpose; who share the responsibil
ity or authority and among whom is reasonable equality. 
Those who are authorized by law to perform the duties 
jointly or as a body. 
Association. The act of a number of persons in uniting 
together for some special purpose or business. It is a 
term of vague meaning used to indicate a collection or 
organization of persons who have joined together for a 
certain or common ob ject. Also, the persons so joining; 
the state of being associated. 
An unincorporated society; a body of persons united 
and acting together without a charter, but upon the 
methods and forms used by incorporated bodies for the 
prosecution of some common enterprise. Penrod Drill
ing Co. v. Johnson, C.A.Tex., 414 F.2d 1217, 1222. It is 
not a legal entity separate from the persons who com
pose it. See also Affiliation. 
An organization treated as a corporation for Federal 
tax purposes even though it may not qualify as such 
under applicable state law. What is designated as a 
trust or a partnership, for example, may be classified as 
an association if it clearly possesses corporate attributes. 
Corporate attributes include: centralized management, 
continuity of existence, free transferability of interests, 
and limited liability. I.R.C. § 7701(a)(3). 
A "business trust" is an "association" when it has a 
continuing entity throughout trust period, centralized 
management, continuity of trust uninterrupted by death 
among beneficial owners, means for transfer of benefi
cial interests, and limitation of personal liabilities of 
participants to property embarked in undertaking. 
Fletcher v. Clark, D.C.Wyo., 57 F.Supp. 479, 480. 
To prove "association" with a criminal venture, for 
purpose of convicting upon evidence that defendant aid-

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ASSOCIATION 
ed and abetted illegal enterprise, there must be evidence 
to establish defendant shared in principal's criminal 
intent. U.S. v. Cowart, C.A.Ga., 595 F.2d 1023, 1035. 
See also Articles of association; Confederacy; Cooper
ative; Joint stock association or company; Non-profit 
association; Professional association; Unincorporated as
sociation. 
Partnership association. See Partnership. 
Professional association. See Corporation (Prof essional 
corporation). 
Unincorporated ass9ciation. A confederation of individ
uals organized for a specific purpose which may or may 
not be profit making but which is not chartered as a 
corporation. 
Association, freedom of. See Assembly, right of. 
Association of American Law Schools, The. AALS is 
literally an association of law schools. After a school 
has graduated at least three annual classes it is eligible 
to apply for membership. Compliance with the rules of 
membership are determined through a three or four 
person inspection tea�. Recommendations for admis
sion to membership are made by the Executive Commit- . 
tee, upon advice of the Accreditation Committee. Mem
bership is attained by action of the House of Representa
tives. 
Assoil / �s6yl/. (Spelled also assoile, absoile, assoilyie.) 
To absolve; acquit; to set free; to deliver from excom
munication. 
As soon as. This term has a relative meaning according 
to the thing which is to be done. It may denote merely 
a reasonable time; or may be equivalent to "whenever", 
or may mean "immediately". 
As soon as may be. Promptly and with due diligence; 
as soon as was reasonably possible; within a reasonable 
time; as soon as possible; fo rthwith; as soon as they 
conveniently can. George A. Fuller Co. v. Jersey City, 
21 N.J .Misc. 38, 29 A.2d 720, 722. 
As soon as practicable. Means reasonable time. These 
words are not synonymous with "as soon as possible "; 
they mean ordinarily as soon as reasonably can be 
expected in the particular circumstances; or "in due 
time". But the words have also been construed as 
practically synonymous with speedily. 
The words "as soon as practicable" within liability 
policy requirement that insured will notify the insurer 
of an occurrence as soon as practicable means within 
reasonable time in view of all the facts and circumstanc
es of each particular case. Greenway v. Selected Risks 
Ins. Co., D.C.App., 307 A.2d 753, 755. 
As speedily as possible. Means within reasonable time 
or without unreasonable delay having regard to all the 
circumstances of the case and the things to be done. 
Tatum v. Levi, 117 CaLApp. 83, 3 P.2d 963, 967. 
Assume. To pretend. To undertake; engage; promise. 
To take to or upon one's self. Also taking up, receiving, 
adopting, taking to oneself, or to put on deceitfully, take 
appearance of, affect, or outwardly seem. To take on, 
122 
become bound as another is bound, or put oneselLin 
place of another as to an obligation or liability. Texas 
Employers' Ins. Ass'n v. Texas & P. Ry. Co., Tex.Civ. 
App., 129 S.W.2d 746, 749. See also Assumption. 
Assumed facts. Facts concerning which no evidence has 
been introduced at trial and hence no rulings of law or 
jury instructions are required. In argument, a hypo
thetical set of facts used to illustrate a point of law. See 
Stipulation. 
Assumed name. See Alias. 
Assumed risk. See Assumption of risk. 
A summo remedio ad inferiorem actionem non habe
tur regressus, neque auxilium / ey samow 
r�miyd(i)yow red infiriy6r�m rekshiy6wn�m non h�biyt�r 
r�gres�s, nekwiy ogzil(i)y�m/. From (after using) the 
highest remedy, there can be no recourse (going back) to 
an inferior action, nor assistance (derived from it). A 
maxim in the old law of real actions, when there were 
grades in the remedies given; the rule being that a 
party who brought a 'writ of right, which was the highest 
writ in the law, could not afterwards resort or descend 
, to an inferior remedy. 3 BLComm. 193, 194. 
Assumpsit /�sam(p)s�tI. Lat. He undertook; he prom
ised. 
A promise or engagement by which one person as
sumes or undertakes to do some act or pay something to 
another. It may be either oral or in writing, but is not 
under seaL It is express if the promisor puts his engage
ment in distinct and definite language; it is implied 
where the law infers a promise (though no formal one 
has passed) from the conduct of the party or the circum
stances of the case. Dukes v. Rogers, 67 Ga.App. 661, 21 
S.E.2d 295, 297. 
A common law form of action which lies for the 
recovery of damages for the non-performance of a parol 
or simple contract; or a contract that is neither of 
record nor under seaL A liberal and equitable action, 
applicable to almost every case where money has been 
received which in equity and good conscience ought to 
be refunded; express promise is not necessary to sustain 
action, but it may be maintained whenever anything is 
received or done from the circumstances of which the 
law implies a promise of compensation. The action of 
assumpsit differs from trespass and trover, which are 
founded on a tort, not upon a contract; from covenant 
and debt, which are appropriate where the ground of 
recovery is a sealed instrument, or special obligation to 
pay a fixed sum; and from replevin, which seeks the 
recovery of specific property, if attainable, rather than 
of damages. 
Express assumpsit. See Express assumpsit. 
General (common or indebitatus) assumpsit is an action 
of assumpsit brought upon the promise or contract im
plied by law in certain cases. It is founded uport what 
the law terms an implied promise on the part of defen
dant to pay what, in good conscience, he is bound to pay 
to plaintiff.

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123 
Special assumpsit is an action of assumpsit brought 
upon an express contract or promise. 
Ass�psit for money had and received. Is of eq
uitable character and lies, in general, whenever defen
dant has received money which in equity and good 
conscience he ought to pay to plaintiff. 
Assumpsit on quantum meruit /;}s;}m(p)s;}t on kwont;}m 
meruw;}t/. When a person employs another to do work 
for him, without any agreement as to his compensation, 
the law implies a promise from the employer to the 
workman that he will pay him for his services as much 
as he may deserve or merit. In such case, the plaintiff 
may suggest in his declaration that the defendant prom
ised to pay him as much as he reasonably deserved, and 
then aver that his trouble was worth such a sum of 
money, which the defendant has omitted to pay. This is 
called an "assumpsit on quantum meruit". Travis v. 
Kennedy, Te:&.Civ.App., 66 S.W.2d 444, 446. See also 
Quantum meruit. 
Assumption. The act of conceding or taking for grant
ed. Laying claim to or taking possession of. 
The act or agreement of assuming or taking upon 
one's self. The undertaking or adoption of a debt or 
obligation primarily resting upon another, as where the 
purchaser of real estate "assumes" a mortgage resting 
upon it, in which case he adopts the mortgage debt as 
his own and becomes personally liable for its payment. 
The difference between the purchaser of land assuming 
a mortgage on it and simply buying subject to the 
mortgage, is that in the former case he makes himself 
personally liable for the payment of the mortgage debt, 
while in the latter case he does not. When he takes the 
conveyance subject to the mortgage, he is bound only to 
the extent of the property. Where one "assumes" a 
lease, he takes to himself the obligations, contracts, 
agreements, and benefits to which the other contracting 
party was entitled under the terms of the lease. See 
Assumption of mortgage. 
Assumption clause. In mortgages, a provision that the 
mortgage may not be assumed without written consent 
of mortgagee. See Assumption of mortgage. Also a 
provision in an instrument of transfer in which the 
transferee agrees to assume an obligation of the trans
feror. 
Assumption fee. Lender's charge for processing records 
for new buyer assuming an existing loan (mortgage). 
Assumption of care. See Good Samaritan doctrine. 
Assumption of indebtedness. Exists when person 
binds himself to pay debt incurred by another. Pawnee 
County Excise Board v. Kurn, 187 Okl. 11 0, 101 P.2d 
614, 618. See also Subrogation. 
Assumption of mortgage. To take or acquire a mort
gage or deed of trust from some prior holder. Thus, a 
purchaser may assume or take over the mortgage of the 
seller. Often this requires permission of the mortgagee. 
This is distinguishable from taking equity of redemption 
subject to mortgage because in latter case grantee is not 
contractually bound to pay mortgage, whereas if he 
ASSURE 
assumes the mortgage, he binds himself to mortgagor to 
pay the mortgage and to fulfill all other . terms and 
conditions of mortgage. See also Assumption. 
Assumption of risk. The doctrine of assumption of risk, 
also known as volenti non fit injuria, means legally that 
a plaintiff may not recover for an injury to which he 
assents, i.e., that a person "may not recover for an injury 
received when he voluntarily exposes himself to a 
known and appreciated danger. The requirements for 
the defense of volenti non fit injuria are that: (1) the 
plaintiff has knowledge of facts constituting a dangerous 
condition, (2) he knows the condition is dangerous, (3) he 
appreciates the nature or extent of the danger, and (4) 
he voluntarily exposes himself to the danger. An excep
tion may be applicable even though the above factors 
have entered into a plaintiffs conduct if his actions 
come within the rescue or humanitarian doctrine. 
Clarke v. Brockway Motor Trucks, D.C.Pa., 372 F.Supp. 
1342, 1347. 
A defense to action of negligence which consists of 
showing that the plaintiff, knowing the dangers and risk 
involved, chose to act as he did. An affirmative defense 
which the defendant in a negligence action must plead 
and prove. Fed.R.Civil P. 8(c). It is not a defense under 
state workers' compensation laws or in FELA actions. 
Many states have abolished the defense of assumption of 
risk in automobile cases with the enactment of no-fault 
insurance acts or comparative negligence acts. 
See also Volenti non fit injuria. 
Secondary assumption of risk. Such occurs when indi
vidual voluntarily encounters known, appreciated risk 
without an intended manifestation by that individual 
that he consents to relieve another of his duty. Calvert 
v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433, 
437. 
Assurance. The act or action of assuring; e.g. a pledge, 
guaranty, or surety. A declaration tending to inspire 
full confidence. 
The deed or instrument by which real property is 
conveyed; also, the act of conveying such. 
Same as "Insurance"; term used in Canada and Eng
land. 
In England, the legal evidences of the transfer of 
property are called the "common assurances" of the 
kingdom, whereby every man's estate is assured to him, 
and all controversies, doubts, and difficulties are either 
prevented or removed. 
Assurance, further, covenant for. See Covenant (Cove
nant for further assurance). 
Assure. To make certain and put beyond doubt. To 
declare, aver, avouch, assert, or ensure positively. To 
declare solemnly; to assure to any one with design of 
inspiring belief or confidence. Used interchangeably 
with "insure" in insurance law. In real property doc
uments it means a warranty; and in business doc
uments, generally, it means a pledge or security. Utili
ties Engineering Institute v. Kofod, 185 Misc. 1035, 58 
N.Y.S.2d 743, 745.

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ASSURED 
Assured. A person who has been insured by some insur
ance company, or underwriter, against losses or perils 
mentioned in the policy of insurance. Ordinarily synon
ymous with "insured". 
Assured clear distance ahead. Requires driver to keep 
motor vehicle under such control that he can stop in 
distance that he can clearly see; the distance varying 
with circumstances. Smiley v. Arrow Spring Bed Co., 
138 Ohio St. 81, 33 N.E.2d 3, 5, 6, 7, 9. 
Assurer. An insurer against certain perils and dangers; 
an underwriter; an indemnifier. 
Astipulation I;)stipy;)leysh;)n/. A mutual agreement, as
sent, and consent between parties; also a witness or 
record. 
Astitrarius hreres I restr�teriy�s hiriyz/. An heir appar
ent who has been placed, by conveyance, in possession of 
his ancestor's estate during such ancestor's lifetime. 
Astitution lrest�t(y)uwsh�n /. An arraignment (q.v.). 
Astrarius lrestreriy�s/. In old English law, a household
er; belonging to the house; a person in actual possession 
of a house. 
Astrarius hreres lrestreriy�s hiriyz/. Where the ances
tor by conveyance hath set his heir apparent and his 
family in a house in his lifetime. 
Astrer lrestr�r/. In old English law, a householder, or 
occupant of a house or hearth. 
Astrihiltet. In Saxon law, a penalty for a wrong done by 
one in the king's peace. The off ender was to replace the 
damage twof old. 
Astrum I restr�m /. A house, or place of habitation. 
Asylum I�say bm /. A sanctuary, or place of refuge and 
protection, where criminals and debtors fo und shelter, 
and from which they could not be taken without sacri
lege. Shelter; refuge; protection from the hand of 
justice. The word includes not only place, but also 
shelter, security, protection. While a fo reign country 
has the right to offer an asylum to fugitives from other 
countries, there is no corresponding right on the part of 
the alien to claim asylum. This right of asylum has 
been voluntarily limited by most countries by treaties 
providing for the extradition (q.v.) of fugitive criminals 
(international extradition). 
In time of war, a place of refuge in neutral territory 
for belligerent warships. 
An institution for the protection and relief of unfortu
nates, as asylums for the poo r, or for the insane; though 
this term is no longer generally used for such institu
tions. 
Aliens. An alien may be considered for asylum or 
refugee status in the United States if the alien has a 
well-founded fear of persecution in his or her home 
country. To be eligible for either asylum or refugee 
status, the applicant must qualify as a refugee, as de
fined by 8 U.S.C.A. § 1l0 1(aX42). Also, under the Refu
gee Act of 1980, "an alien physically present in the 
United States or at a land border or port of entry ... 
124 
may be granted asylum in the discretion of the Attorney 
General if the Attorney General determines that such 
alien is a refugee ... . " 8 U.S.C.A. § 11 58(a). 
At. A term of considerable elasticity of meaning, and 
somewhat indefinite. A function word to describe or 
indicate presence or occurrence in, on, or near; or to 
indicate the means, cause, or manner; or to indicate 
that with which one is occupied or employed. As used 
to fix a time, it does not necessarily mean eo instante or 
the identical time named, or even a fixed definite mo
ment. Often expresses simply nearness and proximity, 
and consequently may denote a reasonable time. 
Atamita l�trem�t�/. In the civil law, a great-great-great
grandfather's sister. 
At any time. Grant of time without limit. Haworth v. 
Hubbard, 220 Ind. 611, 44 N.E.2d 967, 970. Period of 
time limited by circumstances. Imes v. Globe Oil & 
Refining Co., 184 OkL 79, 84 P.2d 1106, 1107, 1108. 
Within a reasonable time. 
At any time prior to. Synonymous with "not later 
than". Hughes v. United States, C.C.A.Tenn., 11 4 F.2d 
285, 287. 
At arm's length. Beyond the reach of personal influ
ence or controL Parties are said to deal "at arm's 
length" when each stands upon the strict letter of his 
rights, and conducts the business in a formal manner, 
without trusting to the other's fairness or integrity, and 
without being subject to the other's control or overmas
tering influence. See Arm's length transaction. 
Atavia l;)teyviy�/. In the civil law, a great-grandmoth
er's grandmother. 
Atavunculus I ret�v�IJky�l�s/. The brother of a great
grandfather's grandmother, or a great-great-great-grand
father's brother. 
Atavus I ret�v�s/. The male ascendant in the fifth de
gree. The great-grandfather's or great-grandmother's 
grandfather; a fo urth grandfather. 
Ataxia l�treksiy�/. Condition involving impaired coordi
native control over the extremities; power present in 
the extremities, but control is lacking. 
At bar. Before the court. "The case at bar," etc. 
A tempore cujus contrarii memoria non existet ley 
temp�riy kyUwj;)s k�ntreriyay mem6riy� non egzist;)t/. 
From a time of which there is no memory to the con
trary. 
A teneris annis I ey ten�r�s ren�s/. By reason of youth. 
A terme I a term/. For a or the term. 
A terme de sa vie I a term d� sa viy I. For the term of 
his life. 
A terme que n'est mye encore passe. For a term that 
has not yet passed. 
A terme que passe est I a term k� pasey I. For a term 
that has passed.

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125 
Atha IM;}/. (Spelled also Atta, Athe, Atte.) In Saxon 
law, an oath; the power or privilege of exacting and 
administering an oath. 
Atheist. -One who does not believe in the existence of a 
God. 
Atia leysh(iy);}/. Hatred or ill-will. See De odio et atia. 
Atilian law. See Lex Atilia. 
Atinian law. See Lex Atinia. 
At issue. Whenever the parties come to a point in the 
pleadings which is affirmed . on one side and denied on 
the other, they are said to be at an issue. Criminal case 
is "at issue" when defendant enters a plea. State v. 
Padilla, App., 88 N.M. 160, 538 P.2d 802, 804. 
ATLA. American Trial Lawyers Associatio n. 
At large. Not limited to any particular place, district, 
person, matter, or question; open to discussion or con
troversy; not precluded. Free; unrestrained; not under 
corporal control, as a ferocious animal so free from 
restraint as to be liable to do mischief. Fully; in detail; 
in an extended form. 
Elected officials chosen by the voters of the State as a 
whole rather than from separate congressional or legis
lative districts. 
At law. According to law; by, fo r, or in law. Particular
ly in distinction from that which is done in or according 
to equity; or in titles such as sergeant at law, barrister 
at law, attorney or counsellor at law. 
At least. In deed of trust covenant specifying amount of 
fire insurance, means at lowest estimate, at smallest 
concession or claim, in smallest or lowest degree, at 
smallest number. Browne v. Franklin Fire Ins. Co., 225 
Mo.App. 665, 37 S.W.2d 977, 979. 
Atmatertera I retmeyt;}rt;}r;}I . A great-grandfather's 
grandmother's sister (atavire soror), called by Bracton 
"a tmatertera magna." 
At once. In contracts of various kinds the phrase is 
construed as synonymous with "immediately" and 
"forthwith," where the subject-matter is the giving of 
notice. The use of such term does not ordinarily call for 
instantaneous action, but rather that notice shall be 
given within such time as is reasonable in view of the 
circumstances. Likewise, contracts or statutes requiring 
the performance of a particular act "at once" are usual
ly held to mean simply within a reasonable time. An 
order to "ship at once" is synonymous with "as soon as 
possib le". Myers v. Hardin, 208 Ark. 505, 186 S.W.2d 
925, 928. 
A tort. Without reason; unjustly; wrongfully. See Tort. 
A tort et a travers. Without consideration or discern
ment. 
A tort ou a droit. Right or wrong. 
At par. Said of a bond or preferred stock issued or 
selling at its face value. 
Atpatruus I retpretruw;}s/. The brother of a great-grand
father's grandfather. 
ATTACHIAMENTA BONORUM 
At-risk amount. The taxpayer has an amount at risk in 
a business or investment venture to the extent that it 
has subjected personal assets to the risks of the business. 
Typically, the taxpayer's at-risk amount includes (1) the 
amount of money or other property that the investor 
contributed to the venture for the investment, (2) the 
amount of any of the entity's liabilities for which the 
taxpayer personally is liable and that relate to the 
investment, and (3) an allocable share of nonrecourse 
debts incurred by the venture from third parties in 
arm's length transactions, with respect to real estate 
investments. See At-risk rules. 
. 
At-risk rules. The at-risk rules limit a taxpayer's de
ductible losses to the amount the taxpayer has at risk. 
Amounts at risk include the cash investment, and the 
debt for which the taxpayer is personally liable. The 
ob jective of the at-risk rules is to prevent investors from 
sheltering income through losses incurred in activities 
financed substantially through non-recourse debt. See 
also At-risk amount. 
Atrocious assault and battery. An assault by maiming 
and wounding. Aggravated assault. 
Atrocity. A word implying conduct that is outrageously 
or wantonly wicked, criminal, vile, cruel; extremely 
horrible and shocking. 
Atrophy / retr;}fiy / . Degeneration or wasting away of 
tissues, organs or parts due to lack of use; disease or 
interference with nerve supply. 
ATS. At suit of. 
At sea. Out of the limits of any port or harbor on the 
sea-coast. U. S. v. Symonds, 120 U.S. 46, 7 S.Ct. 411, 30 
L.Ed. 557. 
Attach. Seizure of property under a writ of attachment. 
See Attachment. 
To bind, fasten, tie, or connect, to make fast or join; 
its antonyms are separate, detach, remove. 
Attache / ret;}shey / ;}treshey / . A person attached to an 
embassy, to the office of an ambassador, or to a foreign 
legation. One connected with an office, e.g., a public 
of fice. 
Attached. A term describing the physical union of two 
otherwise independent structures or ob jects, or the rela
tion between two parts of a single structure, each having 
its own function. As applied to buildings, the term is 
often synonymous with "annexed." See also Fixture. 
Attached account. Account against which court order 
has been issued; payments can only be made with 
consent of court. 
Attachiamenta / ;}trech(iy);}ment;}/. L. Lat. Attach
ment. 
Attachiamenta bonorum / ;}trech(iy);}ment;} bownor;}m /. 
A distress fo rmerly taken upon goods and chattels, by 
the legal attachiators or bailiffs, as security to answer 
an action for personal estate or debt.

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ATTACHIAMENTUM 
Attachiamenta de placitus coronre / ;}trech(iy);}ment;} 
diy phi!s;}t;}s k;}rowniy /. Attachment of pleas of the 
crown. 
Attachiamenta de spinis et boscis /;}trech(iy);}ment;} diy 
spayn;}s et bosk;}s /. A privilege granted to the officers 
of a forest to take to their own use thorns, brush, and 
windfalls, within their precincts. 
Attachiamentum /;}trech(iy);}ment;}m/. L. Lat. An at
tachment. 
Attaching creditor. See Creditor. 
Attachment. The legal process of seIzmg another's 
property in accordance with a writ or judicial order for 
the purpose of securing satisfaction of a judgment yet to 
be rendered. The act or process of taking, apprehend
ing, or seizing persons or property, by virtue of a writ, 
summons, or other judicial order, and bringing the same 
into the custody of the court for the purpose of securing 
satisfaction of the judgment ultimately to be entered in 
the action. While formerly the main ob jective of attach
ment was to coerce the defendant debtor to appear in 
court by seizer of his property, today the writ of attach
ment is used primarily to seize the debtor's property in 
order to secure the debt or claim of the creditor in the 
event that a judgment is rendered. The remedy of 
attachment is governed strictly by state statutes, with 
such differing considerably as to when attachment is 
available (the majority of states providing that such is 
available at or after the commencement of the main 
action until entry of judgment). Federal courts fo llow 
the local rules or statutes relating to attachment. Fed. 
R.Civil P. 64. 
A remedy ancillary to an action by which plaintiff is 
enabled to acquire a lien upon property or effects of 
defendant for satisfaction of judgment which plaintiff 
may obtain. Lipscomb v. Rankin, C.C.A.Tex., 139 
S.W.2d 367, 369. 
See also Execution; Garnishment; Levy; Lien of attach
ment. 
Commercial law. When the three basic prerequisites of 
a security interest exist (agreement, value, and collat
era!), the security agreement becomes enforceable be
tween the parties and is said to "attach." U.C.C. 
§ 9-203. 
Distinguished from execution. See Execution. 
Domestic and foreign. In some jurisdictions it is com
mon to give the name "domestic attachment" to one 
issuing against a resident debtor (upon the special 
ground of fraud, intention to abscond, etc.), and to desig
nate an attachment against a non-resident, or his prop
erty, as "foreign." 
Where the defendant is a non-resident, or beyond the 
territorial jurisdiction of the court, his goods or land 
within the territory may be seized upon process of 
attachment; whereby he will be compelled to enter an 
appearance, or the court acquires jurisdiction so far as 
to dispose of the property attached. This is sometimes 
called "foreign attachment." In such a case, the pro-
126 
ceeding becomes in substance one in rem against the 
attached property. 
Persons. A writ issued by a court of record, command
ing the sheriff to bring before it a person who has been 
guilty of contempt of court, either in neglect or abuse of 
its process or of subordinate powers. A capias (q.v.). 
Property. A species of mesne process, by which a writ is 
issued at the institution or during the progress of an 
action, commanding the sheriff to seize the property, 
rights, credits, or effects of the defendant to be held as 
security for the satisfaction of such judgment as the 
plaintiff may recover. It is principally used against 
absconding, concealed, or fraudulent debtors. Mass.R. 
Civil P. 4.1. 
Attachment bond. A bond used to dissolve an attach
ment so as to free the property subject to the attach
ment for sale or other disposition; may be surety compa
ny bond or personal bond with sureties. Plaintiff then 
looks to bond for satisfaction of his judgment. 
Attachment execution. A name given in some states to 
a process of garnishment for the satisfaction of a judg
ment. As to the judgment debtor it is an execution; but 
as to the garnishee it is an original process-a summons 
commanding him to appear and show cause, if any he 
has, why the judgment should not be levied on the goods 
and effects of the defendant in his hands. 
Attachment of privilege. In old English law, a process 
by which a man, by virtue of his privilege, calls another 
to litigate in that court to which he himself belongs, and 
who has the privilege to answer there. A writ issued to 
apprehend a person in a privileged place. 
Attachment of risk. Used to describe point in time, 
generally when title passes, when risk of loss for de
struction of property which is subject of sale passes to 
buyer from seller. U.C.C. § 2-509. 
Attachment of the forest. In old English law, one of 
the three courts fo rmerly held in forests. The highest 
court was called "justice in eyre's seat;" the middle, the 
"swainmote ;" and the lowest, the "attachment." 
Attain. To reach or come to by progression or motion; 
to arrive at; as, to attain a ripe old age. Watkins v. 
Metropolitan Life Ins. Co., 156 Kan. 27, 131 P.2d 722, 
723. 
Attainder /;}teynd;}r/. At common law, that extinction 
of civil rights and capacities which took place whenever 
a person who had committed treason or felony received 
sentence of death for his crime. 
The effect of "attainder" upon such felon was, in 
general terms, that all his estate, real and personal, was 
forfeited. At the common law, attainder resulted in 
three ways, viz.: by confession, by verdict, and by process 
or outlawry. The first case was where the prisoner 
pleaded guilty at the bar, or having fled to sanctuary, 
confessed his guilt and abjured the realm to save his life. 
The second was where the prisoner pleaded not guilty at 
the bar, and the jury brought in a verdict against him.

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127 
The third, when the person accused made his escape and 
was outlawed. 
In England, by statute 33 & 34 Vict. c. 23, attainder 
upon conviction, with consequent corruption of blood, 
forfeiture, or escheat, was abolished. In the United 
States, the doctrine of attainder is now scarcely known, 
although during and shortly after the Revolution acts of 
attainder were passed by several of the states. The 
passage of such bills is expressly forbidden by the Con
stitution (Art. I, Sec. 9). 
Bills of attainder. Such special acts of the legislature as 
inflict capital punishments upon persons supposed to be 
guilty of high off enses, such as treason and felony, 
without any conviction in the ordinary course of judicial 
proceedings. If an act inflicts a milder degree of punish
ment than death, it is called a "bill of pains and penal
ties," but both are included in the prohibition in the 
Constitution (Art. I, Sec. 9). Losier v. Sherman, 157 
Kan. 153, 138 P.2d 272, 273; State v. Graves, 352 Mo. 
1102, 182 S.W.2d 46, 54. See also Bill. 
Attaint I ;;)teynt/. Attainted, stained, or blackened. 
In old English practice, a writ which lay to inquire 
whether a jury of twelve men had given a false verdict, 
in order that the judgment might be reversed. 3 Bl. 
Comm. 402. This inquiry was made by a grand assise or 
jury of twenty-four persons, usually knights, and, if they 
found the verdict a false one, the judgment was that the 
jurors should become infamous, should forfeit their 
goods and the profits of their lands, should themselves 
be imprisoned, and their wives and children thrust out 
of doors, should have their houses razed, their trees 
extirpated, and their meadows plowed up, and that the 
plaintiff should be restored to all that he lost by reason 
of the unjust verdict. 3 Bl.Comm. 404. 
Attaint d'une cause I ;;)teyn d(y)uwn k6wz/. In French 
law, the gain of a suit. 
Attempt. In statutes and in cases other than criminal 
prosecutions an "attempt" ordinarily means an intent 
combined with an act falling short of the thing intended. 
It may be described as an endeavor to do an act, carried 
beyond mere preparation, but short of execution. 
Criminal law. An intent to commit a crime coupled 
with an act taken toward committing the off ense. An 
effort or endeavor to accomplish a crime, amounting to 
more than mere preparation or planning for it, which, if 
not prevented, would have resulted in the full consum
mation of the act attempted, but which, in fact, does not 
bring to pass the party's ultimate design. The requisite 
elements of an "attempt" to commit a crime are: (1) an 
intent to commit it, (2) an overt act toward its commis
sion, (3) failure of consummation, and (4) the apparent 
possibility of commission. State v. Stewart, Mo.App., 
537 S.W.2d 579, 581. 
A person is guilty of an attempt to commit a crime if, 
acting with the kind of culpability otherwise required 
for commission of the crime, he: (a) purposely engages 
in conduct which would constitute the crime if the 
attendant circumstances were as he believes them to be; 
or (b) when causing a particular result is an element of 
ATTEST 
the crime, does or omits to do anything with the purpose 
of causing or with the belief that it will cause such 
result without further conduct on his part; or (c) pur
posely does or omits to do anything which, under the 
circumstances as he believes them to be, is an act or 
omission constituting a substantial step in a course of 
conduct planned to culminate in his commission of the 
crime. Model Penal Code, § 5.01. 
Attendant, n. One who owes a duty or service to anoth
er, or in some sort depends upon him. One who follows 
and waits upon another. 
Attendant, adj. Accompanying, or connected with. 
Attendant circumstances. Facts surrounding an event; 
e.g. the time, place and declarations of a testator prior to 
and immediately fo llowing execution of his will. 
Attendant terms. In English law, terms (usually mort
gages), for a long period of years, which are created or 
kept outstanding for the purpose of attending or waiting 
upon and protecting the inheritance. A phrase used in 
conveyancing to denote estates which are kept alive, 
after the ob jects for which they were originally created 
have ceased, so that they might be deemed merged or 
satisfied, for the purpose of protecting or strengthening 
the title of the owner. By the Satisfied Terms Act of 
1845, any attendant term becoming satisfied after the 
Act immediately ceased. But the Act did not apply to 
leaseholds. That Act was repealed and replaced by Sec. 
5 of the Law of Property Act of 1925, which applies to 
terms created out of leaseholds as well as terms created 
out of freeholds. 
Attentat I ;;)tent;;)t/. Lat. He attempts. 
In the civil and canon law, anything wrongfully inno
vated or attempted in a suit by an inferior judge (or 
judge a quo ) pending an appeal. 
Attention. Consideration with a view to action; notice; 
attentiveness; the act or state of attending. 
Atterminare I;;)t�rm;;)neriy/. In old English law, to put 
off to a succeeding term; to prolong the time of payment 
of a debt. 
Attermining l;;)t�rm;;)ni1J/. In old English law, a putting 
off; the granting of a time or term, as for the payment 
of a debt. 
Attermoiement. In canon law, a making terms; a com
position, as with creditors. 
Attest. To bear witness to; to bear witness to a fact; to 
affirm to be true or genuine; to act as a witness to; to 
certify; to certify to the verity of a copy of a public 
document formally by signature; to make solemn decla
ration in words or writing to support a fact; to signify 
by subscription of his name that the signer has wit
nessed the execution of the particular instrument. 
Lindsey v. Realty Trust Co., Tex.Civ.App., 75 S.W.2d 
322, 324; City Lumber Co. of Bridgeport v. Borsuk, 131 
Conn. 640, 41 A.2d 775, 778. Also the technical word by 
which, in the practice in many of the states, a certifying 
officer gives assurance of the genuineness and correct
ness of a copy. Thus, an "attested" copy of a document

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ATTEST 
is one which has been examined and compared with the 
original, with a certificate or memorandum of its cor
rectness, signed by the persons who have examined it. 
See Affirmation; Jurat; Oath; Verification. 
Attestation. The act of witnessing an instrument in 
writing, at the request of the party making the same, 
and subscribing the name of the witness in testimony of 
such fact. In re Carlson's Estate, 156 Or. 597, 68 P.2d 
11 9, 121. See Affirmation; Jurat; Oath; Verification. 
Attestation clause. That clause (e.g. at the end of a 
will) wherein the witnesses certify that the instrument 
has been executed before them, and the manner of the 
execution of the same. A certificate certifying as to 
facts and circumstances attending execution of will. In 
re Bragg's Estate, 106 Mont. 132, 76 P.2d 57, 62. See 
Uniform Probate Code, § 2-502. 
Attestation of will. Act of witnessing performance of 
statutory requirements to valid execution. Zaruba v. 
Schumaker, Tex.Civ.App., 178 S.W.2d 542, 543. See 
Attestation clause. 
Attested copy. See Attest. 
Attesting witness. One who signs his name to an in
strument, at the request of the party or parties, for the 
purpose of proving and identifying it. 
Attestor. One who attests or vouches for. 
At the courthouse door. In proximity of courthouse 
door. At place provided for posting of legal notices in 
courthouse. Matson v. Federal Farm Mortg. Corpora
tion, Tex.Civ.App., 151 S.W.2d 636, 640, 641. 
At the end of the will. The words "at the end of the 
will" within statute providing that every will shall be 
subscribed by testator at the end of the will mean the 
end of the language and not paper on which it is 
written. In re Hildreth's Will, 36 N.Y.S.2d 938, 939, 
940. 
At the market. Order to broker to buy or sell a stock at 
the current market price, rather than at a specified 
price. See Market order. 
At time cause of action accrues. Term is sometimes 
applied to present enforcible demand, but more often 
simply means to arise or come into existence. Stone v. 
Phillips, 142 Tex. 216, 176 S.W.2d 932, 933. 
Attincta /::>ti1Jkt::>/. L. Lat. An attaint, stain, or black
ening; a conviction or finding of guilty of some off ense. 
Attorn / ::>t�rn/ . To turn over; to transfer to another 
money or goods; to assign to some particular use or 
service. To consent to the transfer of a rent or rever
sion. To agree to become tenant to one as owner or 
landlord of an estate previously held of another, or to 
agree to recognize a new owner of a property or estate 
and promise payment of rent to him. 
Attornare / ret::>rneriy / . Lat. To attorn; to transfer or 
turn over; to appoint an attorney or substitute. 
Attornare rem /ret::>rneriy rem/. To turn over money or 
goods, i.e., to assign or appropriate them to some partic
ular use or service. 
128 
Attornato faciendo vel recipiendo /ret::>rneydow fre
shiyendow vel r::>sipiyendow / . An obsolete writ, which 
commanded a sheriff or steward of a county court or 
hundred court to receive and admit an attorney to 
appear for the person that owed suit of court. 
Attornatus /ret::>rneyt::>s/. One who is attorned, or put in 
the place of another; a substitute; hence, an attorney. 
Attornatus fere in omnibus personam domini repre
sentat / ret::>rneyt::>s firiy in omn::>b::>s p::>rsown::>m 
dom::>nay repr::>zent::>t/. An attorney represents the per
son of his master in almost all respects. 
Attorne /:}torn/. L. Fr. In old English law, an attorney. 
Attorney. In the most general sense this term denotes 
an agent or substitute, or one who is appointed and 
authorized to act in the place or stead of another. An 
agent, or one acting on behalf of another. Sherts v. 
Fulton Nat. Bank of Lancaster, 342 Pa. 337, 21 A.2d 18. 
In its most common usage, however, unless a contrary 
meaning is clearly intended, this term means "attorney 
at law", "lawyer" or "counselor at law". 
"Attorney" means attorney, professional law associa
tion, corporation, or partnership, authorized under ap
plicable law to practice law. Bankruptcy Code, § 101. 
The word "attorney" includes a party prosecuting or 
defending an action in person. New York C.P.L.R. 
§ 105. 
See also Attorney for government; Attorney General; 
Barrister; District (District attorney); House counsel; 
Lawyer; Prosecuting attorney; State's attorney; United 
States Attorney. 
Attorney ad hoc. See Ad hoc. 
Attorney at large. In old practice, an attorney who 
practiced in all the courts. 
Attorney at law. Person admitted to practice law in his 
respective state and authorized to perform both civil and 
criminal legal functions for clients, including drafting of 
legal documents, giving of legal advice, and representing 
such before courts, administrative agencies, boards, etc. 
In English law, a public officer belonging to the supe
rior courts of common law at Westminster, who conduct
ed legal proceedings on behalf of others, called his 
clients, by whom he was retained; he answered to the 
solicitor in the courts of chancery, and the proctor of the 
admiralty, ecclesiastical, probate, and divorce courts. 
An attorney was almost invariably also a solicitor. It 
was provided by the judicature act, 1873, § 87, that 
solicitors, attorneys, or proctors of, or by law empowered 
to practice in, any court the jurisdiction of which is by 
that act transferred to the high court of justice or the 
court of appeal, shall be called "solicitors of the supreme 
court." 
Attorney ethics. See Code of Professional Responsibil ity; 
Rules of Professional Conduct. 
Attorney fees. See American rule; Attorney's lien; Com
mon fund doctrine; Equal Access to Justice Act; Fee; 
Lodestar Rule; Minimum fee schedules; Retainer.

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129 
Attorney in fact. A private attorney authorized by an
other to act in his place and stead, either for some 
particular purpose, as to do a particular act, or for the 
transaction of business in general, not of a legal charac
ter. This authority is conferred by an instrument in 
writing, called a "letter of attorney," or more commonly 
a "power of attorney." See Power of attorney. 
Attorney of record. Attorney whose name must appear 
somewhere in permanent records or files of case, or on 
the pleadings or some instrument filed in the case, or on 
appearance docket. Person whom the client has named 
as his agent upon whom service of papers may be made. 
Reynolds v. Reynolds, 21 Cal.2d 580, 134 P.2d 251, 254. 
An attorney who has filed a notice of appearance (e.g., 
through a praecipe) and who hence is fo rmally men
tioned in court records as the official attorney of the 
party. Once an attorney becomes an attorney of record, 
he often cannot withdraw from the case without court 
permission. 
Every pleading of a party represented by an attorney 
shall be signed by at least one attorney of record in his 
individual name, whose address shall be stated. Fed.R. 
Civil P. 11. 
Attorney's license. A formal document issued by a state 
supreme court, normally after passage of a bar examina
tion, which permits one to practice law in that jurisdic
tion. Also, a similar document issued by federal courts 
to attorneys admitted to practice in state courts. Such 
licenses may be revoked because of disbarment or sus
pended for attorney misconduct. 
Attorney's lien. See Attorney's lien. 
Letter of attorney. A power of attorney; a written 
instrument by which one person constitutes another his 
true and lawful attorney, in order that the latter may do 
for the fo rmer, and in his place and stead, some lawful 
act. An instrument of writing, appointing an attorney 
in fact for an avowed purpose and setting fo rth his 
powers and duties. It is, in effect, a mere contract of 
agency. A general power authorizes the agent to act 
generally in behalf of the principal. A special power is 
one limited to particular acts. 
Power of attorney. The instrument by which authority 
of one person to act in place and stead of another as 
attorney in fact is set fo rth. See also Power of attorney. 
Practice of law. See Practice. 
Public attorney. A name sometimes given to an attor
ney at law, as distinguished from a private attorney, or 
attorney in fact. 
Right to attorney. See Counsel, right to. 
Attorney-client privilege. In law of evidence, client's 
privilege to refuse to disclose and to prevent any other 
person from disclosing confidential communications be
tween he and his attorney. Such privilege protects 
communications between attorney and client made for 
purpose of furnishing or obtaining professional legal 
advice or assistance. Levingston v. Allis-Chalmers 
Corp., D.C.Miss., 109 F.R.D. 546, 550. That privilege 
Black's Law Dictionary 6th Ed.-4 
ATTORNEY'S LIEN 
which permits an attorney to refuse to testify as to 
communications from client to him though it belongs to 
client, not to attorney, and hence client may waive it. 
In federal courts, state law is applied with respect to 
such privilege. Fed.Evid. Rule 501. See also Client's 
privilege; Joint defense doctrine. 
Attorney for government. Includes the Attorney Gen
eral, an authorized assistant of the Attorney General, a 
United States Attorney, an authorized assistant of a 
United States Attorney and when applicable to cases 
arising under the laws of Guam means the Attorney 
General of Guam or such other person or persons as 
may be authorized by the laws of Guam to act therein. 
Fed.R.Crim.P. 54(c). 
Attorney General. The Attorney General, as head of 
the Department of Justice and chief law off icer of the 
Federal Government, represents the United States in 
legal matters generally and gives advice and opinions to 
the President and to the heads of the executive depart� 
ments of the Government when so requested. The At
torney General appears in person to represent the 
Government in the U.S. Supreme Court in cases of 
exceptional gravity or importance. See also Solicitor 
General. 
In each state there is also an attorney general, who is 
the chief law off icer of the state. He gives advice and 
opinions to the governor and to executive and adminis
trative departments or agencies. 
In England, the principal law of ficer of the Crown, 
and head of the bar of England. 
Private Attorney General. The "private attorney gener
al" concept holds that a successful private party plain
tiff is entitled to recovery of his legal expenses, includ
ing attorney fees, if he has advanced the policy inhejent 
in public interest legislation on behalf of a significant 
class of persons. Dasher v. Housing Authority of City of 
Atlanta, Ga., D.C.Ga., 64 F.R.D. 720, 722. See also Equal 
Access to Justice Act. 
Attorney general's hill. An indictment presented to 
grand jury by leave of court without prior complaint 
before magistrate and holding for court. Common
wealth v. Wilson, 134 Pa.Super. 222, 4 A.2d 324, 327. 
Attorney general's opinion. An opinion furnished by 
U.S. Attorney General to President, members of execu
tive department or governmental agencies on request 
concerning question of law. Also, opinion rendered by 
state attorney general to Governor or state agencies on 
request concerning an interpretation of law. 
Attorney, right to. See Counsel, right to. 
Attorneysbip. The office of an agent or attorney. 
Attorney's lien. The right of an attorney at law to hold 
or retain in his possession the money or property of a 
client until his proper charges have been adjusted and 
paid. It requires no equitable proceeding for its estab
lishment. Also a lien on funds in court payable to the 
client, or on a judgment or decree or award in his favor, 
recovered through the exertions of the attorney, and for

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ATTORNEY'S LIEN 
the enforcement of which he must invoke the equitable 
aid of the court. 
Charging lien. An attorney's lien, for his proper com
pensation, on the fund or judgment which his client has 
recovered by means of his professional aid and services. 
It is a specific lien covering only the services rendered 
by an attorney in the action in which the judgment was 
obtained, whereas a retaining lien is a general lien for 
the balance of the account between the attorney and his 
client, and applies to the property of the client which 
may come into the attorney's possession in the course of 
his employment. 
Retaining lien. The lien which an attorney has upon all 
his client's papers, deeds, vouchers, etc., which remain 
in his possession, entitling him to retain them until 
satisfaction of his claims for professional services. It is 
a general lien. 
Attorney's work product. See Work product rule. 
Attornment I �t:lrnm:mt/. In feudal and old English 
law, a turning over or transfer by a lord of the services 
of his tenant to the grantee of his seigniory. 
Attornment is the act of a person who holds a lease
hold interest in land, or estate for life or years, by which 
he agrees to become the tenant of a stranger who has 
acquired the fee in the land, or the remainder or rever
sion, or the right to the rent or services by which the 
tenant holds. It is an act by which a tenant acknowl
edges his obligation to a new landlord. 
The agreement of a person to recognize a third party 
as a permissible successor party to a contract; most 
of ten, the agreement of a tenant to pay rent to a new 
landlord, especially a mortgagee who has fo reclosed. 
Attractive agencies doctrine. See Attractive nuisance 
do.rine. 
Attractive instrumentalities doctrine. See Attractive 
nuisance doctrine. 
Attractive nuisance doctrine. The doctrine is that 
person who has an instrumentality, agency, or condition 
upon his own premises, or who creates such condition on 
the premises of another, or in a public place, which may 
reasonably be apprehended to be a source of danger to 
children, is under a duty to take such precautions as a 
reasonably prudent man would take to prevent injury to 
children of tender years whom he knows to be accus
tomed to resort there, or who may, by reason of some
thing there which may be expected to attract them, 
come there to pla:y. See Restatement, Second, Torts 
§ 339. 
Attribution. Under certain circumstances, the tax law 
applies attribution rules to assign to one taxpayer the 
ownership interest of another taxpayer. If, for example, 
the stock of X Corporation is held 60% by M and 40% 
by S, M may be deemed to own 100% of X Corporation if 
M and S are mother and son. In such a case, the stock 
owned by S is attributed to M. Stated differently, M has 
a 60% "direct" and a 40% "indirect" interest in X 
Corporation. It can also be said that M is the "construc
tive" owner of S's interest. 
130 
Attrition. In general, natural and gradual decrease. 
Term is used to describe decline in public utility's actual 
rate of return, after test year, caused by growth in its 
rate base or operating expenses, or both, which outstrips 
any increase in revenues. South Central Bell Tel. Co. v. 
Louisiana Public Service Commission, La., 373 So.2d 
478, 486. Term used to describe the phenomenon 
present when factors, other than extraordinary growth, 
are forcing costs upward without a concomitant incre
ment in revenues. Southern Bell Tel. & Tel. Co. v. 
Florida Public Service Com'n, Fla., 443 So.2d 92, 95. 
Att'y. Attorney. 
Aubaine lowbeyn /. See Droit d'aubaine. 
A.V.C. Ab urbe condita. From the fo unding of the city. 
Auction I 6ksh�n /. An auction is a public sale of proper-
ty to the highest bidder by one licensed and authorized 
for that purpose. The auctioneer is employed by the 
seller and is primarily his agent. However, when the 
property is struck off he is also the agent of the buyer to 
the extent of binding the parties by his memorandum of 
sale, thus satisfying the statute of frauds. Hawaii Jew
elers Ass'n v. Fine Arts Gallery, Inc., 51 Hawaii 502, 463 
P.2d 914, 916. 
A sale by auction is complete when the auctioneer so 
announces by the fall of the hammer or in other custom
ary manner. Such a sale is with reserve unless the 
goods are in explicit terms put up without reserve. 
U.C.C. § 2-328. 
Dutch auction. A method of sale by auction which 
consists in the public offer of the property at a price 
beyond its value, and then gradually lowering the price 
until some one becomes the purchaser. 
Auctionarire lok sh(iy)�neriyiy/. Catalogues of goods for 
public sale or auction. 
Auctionarius loksh(iy)�neriy�s /. A seller; a regrator; a 
retailer; one who bought and sold; an auctioneer, in the 
modern sense. One who buys poor, old, worn-out things 
to sell again at a greater price. 
Auctioneer. A person authorized or licensed by law to 
sell lands or goods of other persons at public auction. 
One who sells goods at public auction for another on 
commission, or for a recompense. 
Auctioneers differ from brokers, in that the latter may 
both buy and sell, whereas auctioneers can only sell; 
also brokers may sell by private contract only, and 
auctioneers by public auction only. 
Auctor 16kt�r/. In the Roman law, an auctioneer. In 
the civil law, a grantor or vendor of any kind. In old 
French law, a plaintiff. 
Auctoritas lokt6r�tres/. In the civil law, authority. In 
old European law, a diploma, or royal charter. 
Auctoritates philosophorum, medicorum, et poeta
rum, sunt in causis allegandre et tenendre I oktor�tey
diyz f�los�f6r�m med�k6r�m et pow�ter�m s:lnt in k6z�s 
rel�grendiy et t�nendiy I. The opinions of philosophers,

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131 
physicians, and poets are to be alleged and received in 
causes. 
Aucupia verborum sunt judice indigna / okyUwpiy� 
v�rb6r�m s�nt juwd�siy indign� /. Catching at words is 
unworthy of a judge. Applied in State v. Flemming, 66 
Me. 142, 151. 
Audi alteram partem / 6day re1t�r�m part�m /. Hear the 
other side; hear both sides. No man should be con
demned unheard. Lowry v. Inman, 46 N.Y. 119; Shaw 
v. Stone, 55 Mass. (1 Cush.) 228. 
Audience. In international law, a hearing; interview 
with the sovereign. The king or other chief executive of 
a country grants an audience to a fo reign minister who 
comes to him duly accredited; and, after the recall of a 
minister, an "audience of leave" ordinarily is accorded 
to him. 
Audience court. In English law, a court belonging to 
the Archbishop of Canterbury, having jurisdiction of 
matters of form only, as the confirmation of bishops, and 
the like. This court has the same authority with the 
Court of Arches, but is of inferior dignity and antiquity. 
The Dean of the Arches is the of ficial auditor of the 
Audience court. The Archbishop of York has also his 
Audience court. These courts, as separate courts, have 
long since been disused. 
Audiendo et terminando /odiyendow et t�rm�nrendow /. 
A writ or commission to certain persons to appease and 
punish any insurrection or great riot. 
Audit. Systematic inspection of accounting records in
volving analyses, tests, and confirmations. 
The hearing and investigation had before an auditor. 
An audience; a hearing; an examination in general. A 
formal or official examination and authentication of 
accounts, with witnesses, vouchers, etc. Green-Boots 
Const. Co. v. State Highway Commission, 165 Okl. 288, 
25 P.2d 783. 
See also Auditor; Generally Accepted Auditing Stan
dards (GAAS). 
Audit opinion. Report of certified public accountant 
after an examination of financial statements, expressing 
opinion on the fairness of presentation of such state
ments. The opinion may take one of the following 
forms: unqualified opinion; qualified opinion; adverse 
opinion; disclaimer of opinion. 
Audit trail. Chain of evidence connecting account bal
ances or other summary results to original transactions 
and calculations. The flow of events between the origi
nal transaction and the account balances in the finan
cial statements. 
Correspondence audit. See Correspondence audit. 
Desk audit. Review of civil service positions to deter
mine if duties and responsibilities of position fit job 
classification and pay grade. 
Field audit. An audit by the Internal Revenue Service 
conducted on the business premises of the taxpayer or in 
the office of the tax practitioner representing the tax-
AUDITOR 
payer. To be distinguished from a correspondence audit 
or an offi ce audit (q.v.). 
Independent audit. One conducted by an outside person 
or firm not connected in any way with the company 
being audited. See also Audit committee. 
Internal audit. Audit performed by personnel of compa
ny to assure that internal procedures, operations, and 
accounting practices are in proper order-in contrast to 
an audit by outside, independent auditors. 
Office audit. See Office (Office audit). 
Tax audit. An examination of books, vouchers and 
records, or other transactions possessing tax conse
quences, of a taxpayer conducted by agents of the I.R.S. 
See Correspondence audit; Office (Office audit); RAR. 
Audita querela / odayd� kw�riyb/. The name of a com
mon law writ constituting the initial process in an 
action brought by a judgment defendant to obtain relief 
against the consequences of the judgment on account of 
some matter of defense or discharge arising since its 
rendition and which could not be taken advantage of 
otherwise. Barnett v. Gitlitz, 290 Ill.App. 212, 8 N.E.2d 
517, 520. May also lie for matters arising before judg
ment where defendant had no opportunity to raise such 
matters in defense. Louis E. Bower, Inc. v. Silverstein, 
298 Ill.App. 145, 18 N.E.2d 385, 387. 
This writ has been abolished in most states that have 
adopted Rules of Civil Procedure, being supplanted by 
motion for relief from judgment. Rule of Civil Proce
dure 60(b). 
Audit committee. A committee of the board of directors 
of a corporation usually consisting of outside directors 
who nominate the independent auditors and discuss 
their work with them. If the auditors believe certain 
matters should be brought to the attention of stockhold
ers, the auditors first bring these matters to the atten
tion of the audit committee. 
Auditor. One who checks the accuracy, fairness, and 
general acceptability of accounting records and state
ments and then attests to them; e.g. a Certified Public 
Accountant. 
A State official whose duty is to examine the accounts 
of state agencies to determine if expenditures were 
made in accordance with authorizations by the legisla
ture. See also General Accounting Office. 
An off icer of a business who examines and verifies 
accounts for accuracy. 
An of ficer (or officers) of the court, assigned to state 
the items of debit and credit between the parties in a 
suit where accounts are in question, and exhibit the 
balance. Under the Rules of Civil Procedure in many 
states, the term "master" is used to describe those 
persons formerly known as auditors; e.g. Mass.R. Civil 
P. 53. See Master; Reference. 
Auditor of the imprest. Any of several off icers in the 
English exchequer, who formerly had the charge of 
auditing the accounts of the customs, naval and military

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AUDITOR 
expenses, etc., now performed by the commissioners for 
auditing public accounts. 
Auditor of the receipts. An officer of the English ex
chequer. 
Public auditor. Examines account records of private 
businesses for a fee. 
State auditor. See first general definition above. 
Augmentation I ogm;}nteys h:m/. The increase of the 
crown's revenues from the suppression of religious hous
es and the appropriation of their lands and revenues. 
Also the name of a court (now abolished) erected 27 Hen. 
VIII, to determine suits and controversies relating to 
monasteries and abbey-lands. The court was dissolved 
in the reign of Mary, but the off ice of augmentations 
remained long after. 
A share of the great tithes temporarily granted to the 
vicars by the appropriators, and made perpetual by 
statute 29 Car. II, c. 8. The word is used in a similar 
sense in the Canadian law. 
Augmented estate. Estate reduced by funeral and ad
ministration expenses, homestead allowance, family al
lowances, exemptions, and enforceable claims to which 
is added value of property transferred to anyone other 
than bona fide purchaser and value of property owned 
by surviving spouse at decedent's death. Uniform Pro
bate Code, § 2-202. 
Augusta legibus soluta non est I ;}g�st;} liyj;}b;}s 
s;}l(y)uwt;} non est!. The empress or queen is not privi
leged or exempted from subjection to the laws. 1 Bl. 
Comm. 219. 
Aula lal;}/. In old English law, a hall, or court; the 
court of a baron, or manor; a court baron. This word 
was employed in medireval England along with curia; it 
was used of the meetings of the lord's men held there in 
the same way that the word court was used. 
Aula ecclesire I al;}· ;}kliyziyiy I. A nave or body of a 
church where temporal courts were anciently held. 
Aula regis lal;} riyj;}s/. (Called also Aula Regia.) The 
king's hall or palace. The chief court of England in 
early Norman times. It was established by William the 
Conqueror in his own hall. It was composed of the great 
officers of state, resident in the palace, and followed the 
king's household in all his expeditions. See also Curia 
regis. 
Aulic I al;}k/. Pertaining to a royal court. 
Aulnage. See Alnager. 
Aulnager. See Alnager. 
Aumone, service in. Where lands are given in alms to 
some church or religious house, upon condition that a 
service or prayers shall be offe red at certain times for 
the repose of the donor's soul. 
Aunt. The sister of one's father or mother, and a rela
tion in the third degree, correlative to niece or nephew. 
Aunt Minnie. An arrangement whereby a stockbroker, 
with memberships on both New York Stock Exchange 
132 
and regional exchange, gives up part of his or her 
commission on the regional exchange in consideration of 
the recipient arranging to place a trade on the New 
York Stock Exchange so that recipient pays for the New 
York Stock Exchange trade not the regular commission 
but that amount less the give-up on the regional ex
change; it is an unlawful rebate. Moses v. Burgin, 
D.C.Mass., 316 F.Supp. 31, 47. 
Aures I ahriyz/. A Saxon punishment by cutting off the 
ears, inflicted on those who robbed churches, or were 
guilty of any other theft. 
Aurum reginre I ahr;}m r;}jayniy I. Queen's gold. A roy
al revenue belonging to every queen consort during her 
marriage with the king. 
Australian ballot. An of ficial ballot on which the 
names of all the candidates are printed. Its use is 
accompanied by safeguards designed to maintain secrecy 
in voting. The so-called Australian ballot laws, widely 
adopted in various forms in the United States, have 
generally been sustained by the courts. 
Auter lawt;}r/, autre rtr;}/. L. Fr. Another; other. 
See Autre. 
Authentic I oOent ik/. Genuine; true; real; pure; reli
able; trustworthy; having the character and authority 
of an original; duly vested with all necessary formalities 
and legally attested. Competent, credible, and reliable 
as evidence. 
Authentic act. In the civil law, an act which has been 
executed before a notary or public officer authorized to 
execute such functions, or which is testified by a public 
seal, or has been rendered public by the authority of a 
competent magistrate, or which is certified as being a 
copy of a public register. 
Authentic copy. A copy which is of such authority as to 
prove the form and contents of the original from which 
it is taken. See also Authentication. 
Authentication I ;}Oent;}keysh;}n/. In the law of evi
dence, the act or mode of giving authority or legal 
authenticity to a statute, record, or other written instru
ment, or a certified copy thereof, so as to render it 
legally admissible in evidence. Verifications of judg
ments. An attestation made by a proper off icer by 
which he certifies that a record is in due form of law, 
and that the person who certifies it is the officer ap
pointed so to do. Acts done with a view of causing an 
instrument to be known and identified. See also Verifi
cation. 
Authentication of a writing means (a) the introduction 
of evidence sufficient to sustain a finding that it is the 
writing that the proponent of the evidence claims it is or 
(b) the establishment of such facts by any other means 
provided by law. Calif.Evid.Code, § 1400. 
The requirement of authentication as a condition 
precedent to admissibility of evidence is satisfied by 
evidence sufficient to support a finding that the matter 
in question is what its proponent claims. Fed.Evid.Rule 
901.

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133 
Self authentication. Statutes frequently provide that 
certain classes of writings shall be received in evidence 
"without further proof. " The following fall into this 
category: (1) deeds, conveyances or other instruments, 
which have been acknowledged by the signers before a 
notary public, (2) certified copies of public records, and 
(3) books of statutes which purport to be printed by 
public authority. See Fed.Evid.Rule 902. 
Authenticum /oOent:lk:lm /. In the civil law, an original 
instrument or writing; the original of a will or other 
instrument, as distinguished from a copy. 
Author. One who produces, by his own intellectual 
labor applied to the materials of his composition, an 
arrangement or compilation new in itself. A beginner 
or mover of anything; hence efficient cause of a thing; 
creator; originator; a composer, as distinguished from 
an editor, translator or compiler. 
Authorities. Citations to constitutions, statutes, prece
dents, judicial decisions, rules, regulations, textbooks, 
articles, and the like made on the argument of questions 
of law (e.g., in briefs, motions, etc.) on the trial of causes 
before a court, in support of the legal positions contend
ed for, or adduced to fortify the opinion of a court or of a 
text writer upon any question. Authorities may be 
either primary (e.g., statutes, court decisions, regula
tions), or secondary (e.g., Restatements, treatises). 
Authority. Permission. Right to exercise powers; to 
implement and enforce laws; to exact obedience; to 
command; to judge. Control over; jurisdiction. Often 
synonymous with power. The power delegated by a 
principal to his agent. The lawful delegation of power 
by one person to another. Power of agent to affect legal 
relations of principal by acts done in accordance with 
principal's manifestations of consent to agent. See Re
statement, Second, Agency § 7. 
Refers to the precedential value to be accorded an 
opinion of a judicial or administrative body. A court's 
opinion is binding authority on other courts directly 
below it in the judicial hierarchy. Opinions of lower 
courts or of courts outside the hierarchy are governed by 
the degree to which it adheres to the doctrine of stare 
decisis. See Stare decisis. 
Legal power; a right to command or to act; the right 
and power of public of ficers to require obedience to their 
orders lawfully issued in the scope of their public duties. 
See also Actual authority; Apparent authority; Binding 
authority; Commission; Competent authority; Constructive 
authority; Control; Credentials; Implied authority; Power; 
Precedent; Real authority; Scope of authority. 
Actual express authority. Actual authority derived from 
written or spoken words of principal. See also Actual 
authority. 
Actual implied authority. Actual authority inferred 
from words or conducted manifested to agent by princi
pal. See also Implied authority. 
Apparent authority. That which, though not actually 
granted, the principal knowingly permits the agent to 
exercise, or which he holds him out as possessing. The 
AUTHORIZE 
power to affect the legal relations of another person by 
transactions with third persons, professedly as agent for 
the other, arising from and in accordance with the 
other's manifestations to such third persons. Restate
ment, Second, Agency, § 8. See Authority by estoppel, 
below. 
Authority by estoppel. Not actual, but apparent only , 
being imposed on the principal because his conduct has 
been such as to mislead, so that it would be unjust to let 
him deny it. See Apparent authority, above. 
Authority coupled with an interest. Authority given to 
an agent for a valuable consideration, or which forms 
part of a security. 
Express authority. That given explicitly, either in writ
ing or orally. See Express authority. 
General authority. That which authorizes the agent to 
do everything connected with a particular business. It 
empowers him to bind his principal by all acts within 
the scope of his employment; and it cannot be limited 
by any private direction not known to the party dealing 
with him. 
Implied authority. Actual authority circumstantially 
proved. That which the principal intends his agent to 
possess, and which is implied from the principal's con
duct. It includes only such acts as are incident and 
necessary to the exercise of the authority expressly 
granted. 
Incidental authority. Such authority as is necessary to 
carry out authority which is actually or apparently 
given, e.g. authority to borrow money carries with it as 
an incidental authority the power to sign commercial 
paper to effectuate the borrowing. 
Inferred authority. See Incidental authority, above. 
Inherent authority. Such power as reposes in an agent 
by virtue of the agency itself. 
Limited authority. Such authority as the agent has 
when he is bound by precise instructions. 
Naked authority. That arising where the principal del
egates the power to the agent wholly for the benefit of 
the fo rmer. 
Ostensible authority. See Apparent authority, above. 
Presumptive authority. See Implied authority, above. 
Special authority. That which is confined to an individ
ual transaction. Such an authority does not bind the 
principal, unless it is strictly pursued. 
Unlimited authority. That possessed by an agent when 
he is left to pursue his own discretion. 
Authorize. To empower; to give a right or authority to 
act. To endow with authority or effective legal power, 
warrant, or right. People v. Young, 100 Ill.App.2d 20, 
241 N.E.2d 587, 589. To permit a thing to be done in 
the future. It has a mandatory effect or meaning, 
implying a direction to act. 
"Authorized" is sometimes construed as equivalent to 
"permitted"; or "directed", or to similar mandatory 
language. Possessed of authority; that is, possessed of

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AUTHORIZE 
legal or rightful power, the synonym of which is "compe
tency." Doherty v. Kansas City Star Co., 143 Kan. 802, 
57 P.2d 43, 45. 
Authorized capital. See Authorized stock issue. 
Authorized stock issue. Total number of shares of 
capital stock which charter or articles of incorporation 
permits corporation to sell. The shares of all classes a 
domestic or foreign corporation is authorized to issue. 
Rev. Model Bus. Corp. Act, § 1.40. 
Autocracy I otokr;}siy I. The name of an unlimited mo
narchical government. A government at the will of one 
man (called an "autocrat"), unchecked by constitutional 
restrictions or limitations. 
Autograph. One's handwriting; written with one's own 
hand. 
Automatic stay. Immediately upon the filing of a vol
untary petition under the Bankruptcy Code a stay arises 
which generally bars all debt collection effo rts against 
the debtor or property of his bankruptcy estate although 
the collection of postpetition debts against the debtor is 
not stayed. Code § 362(a). The court need not sign any 
order to give rise to the stay; the mere filing of the 
petition , with supporting documentation, with the clerk 
is sufficient. In re Artishon, Bkrtcy.Minn., 39 RR. 890, 
893; Jones v. Wood (In re Wood), Bkrtcy.ldaho, 33 RR. 
320, 321. 
Automatism I ;}tom;}tiz;}m/. Behavior performed in a 
state of mental unconsciousness or dissociation without 
full awareness, i.e., somnambulism, fugues. Term is 
applied to actions or conduct of an individual apparently 
occurring without will, purpose, or reasoned intention 
on his part; a condition sometimes observed in persons 
who, without being actually insane, suffer from an ob
scuration of the mental faculties, loss of volition or of 
memory, or kindred affections. "Ambulatory automa
tism" describes the pathological impulse to purposeless 
and irresponsible wanderings from place to place often 
characteristic of patients suffering from loss of memory 
with dissociation of personality. Automatism may be 
asserted as a criminal defense to negate the requisite 
mental state of voluntariness for commission of a crime. 
See e.g. Model Penal Code, § 2.01. 
Automobile guest. See Family automobile doctrine; Fam
ily purpose doctrine; Guest; Guest statute. 
Automobile insurance. A comprehensive term which 
embraces insurance coverage for all risks involved in 
owning and operating an automobile, such as personal 
injury protection, property damage to another and to 
the insured, fire, theft and vandalism. See Insurance. 
Autonomy. The political independence of a nation; the 
right (and condition) of power of self-government. The 
negation of a state of political influence from without or 
from fo reign powers. Green v. Obergfell, 73 App.D.C. 
298, 121 F.2d 46, 57. 
Autopsy I otopsiy I. The dissection of a dead body for the 
purpose of inquiring into the cause of death. A post 
mortem examination to determine the cause, seat, or 
134 
nature of a disease. Such is normally required by 
statute for deaths by violent, unexplained, or unnatural 
means. See also Inquest. 
Autoptic evidence. An exhibit of a thing off ered before 
jury as evidence to be seen through jury's own eyes. 
Johnson v. State, 139 Tex.Cr.R. 279, 139 S.W.2d 579, 
581. See Autoptic proference; Demonstrative evidence. 
Autoptic proference. Proffering or presenting in open 
court of articles for observation or inspection of the 
tribunal. See Autoptic evidence; Demonstrative evi
dence. 
Auto theft. A form of larceny, the subject matter of 
which is a motor vehicle. The taking and carrying away 
of a motor vehicle from the owner or possessor with 
intent to deprive him permanently of it. The intent 
distinguishes larceny from a lesser off ense of use with
out authority. See also Joyriding. 
Autre lowtr;}/. (Fr.) Another. 
Autre action pendant lowtr;} itksiyown pondon/. In 
common law pleading, another action pending. A spe
cies of plea in abatement. 
Autre droit lowtr;} dr(w)OI. In right of another, e.g., a 
trustee holds trust property in right of his cestui que 
trust. A prochein amy sues in right of an infant. 2 
Bl.Comm. 176. 
Autrefois IOwtr;}fwOl. L. Fr. At another time; former
ly; before; heretofore. 
Autrefois acquit lowtr;}fwo ;}kiy/";}kwit/. Fr. Former
ly acquitted. The name of a plea in bar to a criminal 
action, stating that the defendant has been once already 
indicted and tried for the same alleged off ense and has 
been acquitted. See Double jeopardy. 
Autrefois attaint lowtr;}fwo ;}tren/";}teyntl. In criminal 
law, formerly attainted. An old English plea (now obso
lete) that the defendant has already been attainted for 
one felony, and therefore cannot be criminally prose
cuted for another. 
Autrefois convict lowtr;}fwo k;}nviktl. Fr. Formerly 
convicted. A plea by a criminal in bar to an indictment 
that he has been formerly convicted of the same crime. 
4 Bl.Comm. 336. 
Autre vie lowtr;} viy I. Another's life. A person holding 
an estate for or during the life of another is called a 
tenant "pur autre vie, " or "pur terme d'autre vie. " See 
Estate pur autre vie. 
Auxiliary logzil(iy );}riy/. Aiding; attendant .on; ancil
lary (q.v.); as, an auxiliary bill in equity, an auxiliary 
receiver. Synonymous with "subsidiary." Baker v. 
Fenley, 233 Mo.App. 998, 128 S.W.2d 295, 298. 
Auxiliator logziliyeyt ;}r/. Lat. Helper or assistant; the 
word is closely related to the English word auxiliary. 
Auxilium logzili y;}m/. In feudal and old English law, 
aid; compulsory aid, hence a tax or tribute; a kind of 
tribute paid by the vassal to his lord, being one of the 
incidents of the tenure by knight's service.

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135 
Auxilium ad filium militem faciendum et filiam mari
tandam / ogziliy�m red filiy�m mil�t�m freshiyend�m et 
filiyrem mrer�trend�m/. An ancient writ which was ad
dressed to the sheriff to levy compulsorily an aid to
wards the knighting of a son and the marrying of a 
daughter of the tenants in capite of the crown. 
Auxilium curi re / ogziliy�m kyuriyiy / . In old English 
law, a precept or order of court citing and convening a 
party, at the suit and request of another, to warrant 
something. 
Auxilium regis /ogziliy�m riyj�s/. In old English law, 
the king's aid or money levied for the royal use and the 
public service, as taxes granted by parliament. A subsi
dy paid to the king. 
Auxilium vice comiti / ogziliy�m vaysiy k6m�tay /. An 
ancient duty paid to sheriffs. 
Available. Suitable; useable; accessible; obtainable; 
present or ready for immediate use. Having sufficient 
force or efficacy; effectual; valid. 
Available for work. To be considered "available" for 
purposes of eligibility for unemployment compensation, 
claimant must be ready, willing and able to accept 
either temporary or permanent suitable employment at 
any time by another employer and be actually and 
currently attached to labor force. Craig v. Com. Unem
ployment Compensation Bd. of Review, 65 Pa.Cmwlth. 
305, 442 A.2d 400, 402. 
Avail of marriage. In feudal law, the right of marriage, 
which the lord or guardian in chivalry had of disposing 
of his infant ward in matrimony. A guardian in socage 
had also the same right, but not attended with the same 
advantage. 2 Bl.Comm. 88. 
Aval /�va l/. In French law, the guaranty of a bill of 
exchange; so called because usually placed at the foot or 
bottom (aval) of the bill. 
In Canadian law, the act of subscribing one's signa
ture at the bottom of a promissory note or of a bill of 
exchange; properly an act of suretyship, by the party 
signing, in favor of the party to whom the note or bill is 
given. 
Avanture /�vont(y) ur/. L. Fr. Chance; hazard; mis
chance. 
Avaria, avarie / �veriy�/. Average; the loss and damage 
suffered in the course of a navigation. See Average. 
Avarice. Excessive greed or desire for wealth or gain. 
Avenage. A certain quantity of oats paid by a tenant to 
his landlord as rent, or in lieu of some other duties. 
Aventure, or adventure /�(d)vench�r/. A mischance 
causing the death of a man, as where a person is 
suddenly drowned or killed by any accident, without 
felony. 
Aver /�v�r/, v. In pleading, to declare or assert; to set 
out distinctly and formally; to allege. See also Aver
ment. 
In old pleading, to avouch or verify; to make or prove 
true; to make good or justify a plea. 
AVERAGE 
Aver / eyv�rI, n. In old English and French, property; 
substance, estate and particularly live stock or cattle; 
hence a working beast, a horse or bullock. 
Aver corn. A rent reserved to religious houses, to be 
paid in corn. Corn drawn by the tenant's cattle. 
Aver land. In feudal law, land plowed by the tenant for 
the proper use of the lord of the soil. 
Aver penny. Money paid towards the king's averages or 
carriages, and so to be freed thereof. 
Aver silver. A custom or rent formerly so called. 
Avera /�vir�/. A day's work of a ploughman, formerly 
valued at eight pence. 
Average. A mean proportion, medial sum or quantity, 
made out of unequal sums or quantities. Brisendine v. 
Skousen Bros., 48 Ariz. 416, 62 P.2d 326, 329. In ordi
nary usage the term signifies the mean between two or 
more quantities, measures, or numbers. If applied to 
something which is incapable of expression in terms of 
measure or amount, it signifies that the thing or person 
referred to is of the ordinary or usual type. 
In maritime law, loss or damage accidentally happen
ing to a vessel or to its cargo during a voyage. Also a 
small duty paid to masters of ships, when goods are sent 
in another man's ship, for their care of the goods, over 
and above the freight. See subdefinitions below. 
In old English law, a service by horse or carriage, 
anciently due by a tenant to his lord. A labor or service 
performed with working cattle, horses, or oxen, or with 
wagons and carriages. 
General average. A contribution by the several interests 
engaged in a maritime venture to make good the loss of 
one of them for the voluntary sacrifice of a part of the 
ship or cargo to save the residue of the property and the 
lives of those on board, or for extraordinary expenses 
necessarily incurred for the common benefit and safety 
of all. The law of general average is part of the mari
time law, and not of the municipal law, and applies to 
maritime adventures only. Ralli v. Troop, 157 U.S. 386, 
15 S.Ct. 657, 39 L.Ed. 742. 
Gross average. More commonly called "general aver
age" (q.v.). Where loss or damage occurs to a vessel or 
its cargo at sea, average is the adjustment and appor
tionment of such loss between the owner, the freight, 
and the cargo, in proportion to their respective interests 
and losses, in order that one may not suffer the whole 
loss, but each contribute ratably. 
Particular average is a loss happening to the ship, 
freight, or cargo which is not to be shared by contribu
tion among all those interested, but must be borne by 
the owner of the subject to which it occurs. It is thus 
called in contradistinction to general average. 
Petty average denotes such charges and disbursements 
as, according to occurrences and the custom of every 
place, the master necessarily furnishes for the benefit of 
the ship and cargo, either at the place of loading or 
unloading, or on the voyage; such as the hire of a pilot 
for conducting a vessel from one place to another, tow-

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AVERAGE 
age, light money, beaconage, anchorage, bridge toll, 
quarantine and such like. 
Simple average is the same as "particular average" (q. v.). 
Average clause. A clause providing that similar items 
in one location or at several locations which are covered 
by one insurance policy shall each be covered in the 
proportion that the value in each bears to the value in 
alL 
Average daily balance. Average amount of money that 
a depositor keeps on deposit in a bank, or average 
balance on which finance charge is computed on con
sumer credit account, on any given day. 
Average man test. Used to determine bias of prospec
tive juror who asserts that he is without prejudice but 
who is so connected with case that ordinary man under 
circumstances would be biased without recognition of 
his prejudice. U. S. v. Haynes, C.A.Conn., 398 F.2d 980, 
984. 
Averaging up or down. Practice of purchasing the 
same security at different price levels, thus realizing a 
higher or lower average cost than the first purchase. 
A verbis legis non est recendendum ley v:irbis liyjis 
non est r�sEmd{md�m/. The words of a statute must not 
be departed from. A court is not at liberty to disregard 
the letter of a statute, in favor of a supposed intention. 
A veriis captis in withernam I �viriy�s krept�s in 
wi<J�rn�m/. In old English pleading, a writ granted to 
one whose cattle were unlawfully distrained by another 
and driven out of the county in which they were taken, 
so that they could not be replevied by the sheriff. 
Averium I�viriy�m /. Lat. Goods; property. A beast of 
burden. 
Averment I �v:irm�nt/. In pleading, to allege or assert 
positively. All averments in pleadings are required to 
be simple, concise, and direct. Fed.R. Civil P. 8(e). 
In old pleading, an offer to prove a plea, or pleading. 
The concluding part of a plea, replication, or other 
pleading, containing new affirmative matter, by which 
the party off ers or declares himself "ready to verify." 
Averrare lrev�reriy/. In feudal law, a duty required 
from some customary tenants, to carry goods in a wagon 
or upon loaded horses. 
Aversio I�v:irz(h)(iy)ow/. In the civil law, an averting or 
turning away. A term applied to a species of sale in 
gross or bulk. 
Letting a house altogether, instead of in chambers. 
Averum I�vir�m /. Goods, property, substance; a beast 
of burden. 
Avia leyviy� /. In the civil law, a grandmother. 
Aviaticus !E�yviyret�k�s/. In the civil law, a grandson. 
Aviation Act. Federal law that created Federal A via-
tion Agency (FAA) which is responsible for regulation of 
aviation including aircraft safety, aircraft marking, etc. 
See Federal Aviation Administration. 
136 
A vinculo matrimonii I ey vilJky�low mretr�mowniyay I. 
Lat. From the bond of matrimony. A term descriptive 
of a kind of divorce, which effects a complete dissolution 
of the marriage contract. See Divorce. 
Avocat lavowkit l. Fr. An advocate; a barrister. 
Avocation lrev�keysh�n/. A calling away, a diversion; 
suggesting idea of smaller affairs of life, or subordinate 
or occasional employments, or hobbies, as distinguished 
from one's ordinary or principal occupation. 
A void. To annul; cancel; make void; to destroy the 
efficacy of anything. To evade; escape. 
Avoidable consequences doctrine. Doctrine imposes 
duty on person injured to minimize damages. Baglio v. 
N. Y. Central R. Co., 344 Mass. 14, 180 N.E.2d 798. The 
general rule relating to duty of party who has been 
wronged by breach of contract to mitigate damages; i.e. 
to not sit idly by and allow damages to accumulate. 
Restatement, Second, Contracts, § 350. This doctrine 
provides that one injured by tort of another is not 
entitled to recover damages for any harm that he could 
have avoided by use of reasonable effort. Flowers v. 
District of Columbia, D.C.App., 478 A.2d 1073, 1077. See 
also Mitigation of damages. 
Avoidance. A making void, useless, empty, or of no 
effect; annulling, cancelling; escaping or evading. See 
also Evasion. 
In pleading, the allegation or statement of new mat
ter, in opposition to a fo rmer pleading, which, admitting 
the facts alleged in such fo rmer pleading, shows cause 
why they should not have their ordinary legal effect. 
Fed.R. Civil P. 8(c). See also Affirmative defense; Con
fession and avoidance. 
Avoidance of tax. See Tax avoidance. 
Avoirdupois /rev�rd(y)uwpoyz/. The name of a system 
of weights (sixteen ounces to the pound) used in weigh
ing articles other than medicines, metals, and precious 
stones; so named in distinction from the Troy weight. 
Avoucher I�vawc h�r/. The calling upon a warrantor of 
lands to fulfill his undertaking. See Voucher. 
Avoue /avuwey/. In French and Canadian law, a barris
ter, advocate, solicitor, or attorney. An officer charged 
with representing and defending parties before the tri
bunal to which he is attached. 
A vow I �vaw I. In pleading, to acknowledge and justify 
an act done. To make an avowry. See Avowal; Avowry; 
Justification. 
Avowal I �vaw�l/ . An open declaration. Purpose is to 
enable the court to know what the witness would have 
stated in answer to the question propounded, and to 
inform the court what the interrogator would prove 
contrary to the testimony given at the triaL See Offer of 
proof. 
Avowant. One who makes an avowry. 
Avowry I �vawry I. A common law pleading in the ac
tion of replevin, by which the defendant avows, that is, 
acknowledges and justifies the taking of the distress or

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Baby Act. A plea of infancy, interposed for the purpose 
of defeating an action upon a contract made while the 
person was a minor, is vulgarly called "pleading the 
baby act". By extension, the term is applied to a plea of 
the statute of limitations. 
Bachelor. One who has taken the first undergraduate' 
degree (baccalaureate) in a college or university. 
An unmarried man. A kind of inferior knight; an 
esquire. 
Back, v. To indorse; to sign on the back; to sign 
generally by way of acceptance or approval; to substan
tiate; to countersign; to assume financial responsibility 
for. In old English law where a warrant issued in one 
county was presented to a magistrate of another county 
and he signed it for the purpose of making it executory 
in his county, he was said to "back" it. 
Back, adv. To the rear; backward; in a reverse di
rection. Also, in arrear. 
Backadation. See Backwardation. 
Backbencher. A junior member of Parliament or other 
legislative body who sits in the rear benches, leaving the 
front benches for leaders of the assembly or other digni
taries. 
Backberend (also Backberende) Ibrekber:md/. Sax. 
Bearing upon the back or about the person. Applied to 
a thief taken with the stolen property in his immediate 
possession. Used with handhabend, having in the hand. 
Backbond. A bond of indemnification given to a surety. 
Back carry. In forest law, the crime of having, on the 
back, game unlawfully killed. See Backberend. 
Backdating. Predating a document or instrument prior 
to the date it was actually drawn. The negotiability of 
an instrument is not affected by the fact that it is 
backdated. U.C.C. § 3-114. 
Backhaul. In freight transportation, to carry a ship
ment back over a segment of a route already covered. 
Backing. Indorsement. 
Backing a warrant. See Back. 
Back lands. A term of no very definite import, but 
generally signifying lands lying back from (not contig
uous to) a highway or a water course. 
Backlog. Accumulation of unfilled orders. 
Back order. An unfilled customer order or commit
ment, normally occurring because inventory is not suffi
cient to fill the order upon receipt from the customer. 
Back pay award. Difference between wages already 
paid an employee and higher wages granted retroac
tively. A determination by a judicial or quasi judicial 
body that an employee is entitled to accrued but uncol
lected salary, wages or fringe benefits. Such may be 
awarded in employment discrimination cases. 
Back-seat driver. A highly nervous passenger whether 
sitting in rear or by driver, who by unwarranted advice 
and warnings interferes in careful operation of motor 
vehicle. 
Backside. In English law, a term formerly used in 
conveyances and also in pleading; it imports a yard at 
the back part of or behind a house, and belonging 
thereto. 
Backspread. Less than normal price difference in arbi
trage. 
Back taxes. Those assessed for a previous year or years 
and remaining due and unpaid from the original tax 
debtor. 
Back title letter. Letter given by title insurance compa
ny to an attorney advising of condition of title as of a 
certain date. Attorney then starts examination of title 
as of that date. 
Back to work agreement. Agreement between union 
and employer covering terms and conditions upon which 
employees will return to work following settlement of 
strike. 
Backwardation (also called Backadation) Ibrek
w;}rdeysh:m/. In the language of the stock exchange, 
this term signifies a consideration paid for delay in the 
delivery of stock contracted for, when the price is lower 
for time than for cash. 
Backwards. In a policy of marine insurance, the phrase 
"forwards and backwards at sea" means from port to 
port in the course of the voyage, and not merely from 
one terminus to the other and back. 
Backwater. Water in a stream which, in consequence of 
some dam or obstruction below, is detained or checked 
in its course, or flows back. 
Bacon-Davis Act. Federal law (1931) granting Secre
tary of Labor power to set wage rates on public construc
tion work to meet wages in private sector. 40 U.S.C.A. 
§ 276a. 
138

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139 
Baculus /brek(y)�l�s/. A rod, staff, or wand, used in old 
English practice in making livery of seisin where no 
building stood on the land. A stick or wand, by the 
erection of which on the land involved in a real action 
the defendant was summoned to put in his appearance; 
this was called "baculus nuntiat orius." 3 BLComm. 279. 
Bad. Vicious, evil, wanting in good qualities; the oppo
site of good. Defective, faulty, inferior, or imperfect. 
Kniffley v. Reid, 287 Ky. 212, 152 S.W.2d 615, 616. 
Bad character. Absence of moral virtue; the predomi
nance of evil habits in a person. In law of evidence, 
such character may be shown to affect credibility of 
witness by introduction of record of convictions for 
crimes or by reputation. Fed.Evid.R. 608, 609. 
Bad check. A check which is dishonored on presenta
tion for payment because of no, or insufficient, funds or 
closed bank account. Writing or passing of bad checks 
is a misdemeanor in most states. Model Penal Code 
§ 224.5. See also Check kiting; Worthless (Worthless 
check). 
Bad debt. A debt which is uncollectible; a permissible 
deduction for tax purposes in arriving at taxable in
come. I.R.C. § 166. Different tax treatment is afforded 
business and non-business bad debts. A business debt is 
defined by the Internal Revenue Code as a debt created 
or acquired in connection with a trade or business of the 
taxpayer, or a debt which becomes worthless in the 
taxpayer's trade or business. Loans between related 
parties (family members) generally are classified as non
business. 
A deduction is permitted if a business account receiva
ble subsequently becomes worthless providing the in
come arising from the debt was previously included in 
income. The deduction is allowed only in the year of 
worthlessness. 
Bad-debt loss ratio. The proportion of the total receiva
bles volume that is never collected by a business. 
Bad debt reserVe. An account used in bookkeeping to 
reflect the true worth of receivables in the balance sheet 
by estimating those debts which may not be collected 
and w:hich ultimately will be written off as bad debts 
and claimed as a deduction for tax purposes. See also 
Reserve. 
Bad faith. The opposite of "good faith," generally imply
ing or involving actual or constructive fraud, or a design 
to mislead or deceive another, or a neglect or refusal to 
fulfill some duty or some contractual obligation, not 
prompted by an honest mistake as to one's rights or 
duties, but by some interested or sinister motive. Term 
"bad faith" is not simply bad judgment or negligence, 
but rather it implies the conscious doing of a wrong 
because of dishonest purpose or moral obliquity; it is 
different from the negative idea of negligence in that it 
contemplates a state of mind affirmatively operating 
with furtive design or ill will. Stath v. Williams, Ind. 
App., 367 N.E.2d 1120, 1124. An intentional tort which 
results from breach of duty imposed as consequence of 
BAGA 
relationship established by contract. Davis v. Allstate 
Ins. Co., 101 Wis.2d 1, 303 N.W.2d 596, 599. 
Insurance. "Bad faith" on part of insurer is any friv
olous or unfounded refusal to pay proceeds of policy; it 
is not necessary that such refusal be fraudulent. State 
Farm General Ins. Co. v. Clifton, 86 N.M. 757, 527 P.2d 
798, 800. For purposes of an action against an insurer 
for failure to pay a claim, such conduct imports a 
dishonest purpose and means a breach of a known duty 
(i.e., good faith and fair dealing), through some motive of 
self-interest or ill will; mere negligence or bad judgment 
is not bad faith. Blue Cross and Blue Shield of Alabama 
v. Granger, Ala., 461 So.2d 1320, 1327. 
Badge. A mark or cognizance worn to show the relation 
of the wearer to any person or thing; the token of 
anything; a distinctive mark of office or service. 
Badger. To harass, pester, or bedevil persistently espe
cially in a manner likely or designed to confuse, annoy 
or wear down. Eaton v. Klopman Mills, Inc., 2 N.C.App. 
363, 163 S.E.2d 17, 18. See also Harassment. 
In old English law, one who made a practice of buying 
corn or victuals in one place, and carrying them to 
another to sell and make profit by them. 
Badges of fraud. A circumstance or other fact accompa
nying a transfer of property that the courts recognize as 
an especially reliable indicator of the transferor's actual 
intention to hinder, delay, or defraud creditors in mak
ing the transfer. It is defined as a fact tending to throw 
suspicion upon a transaction, and calling for an explana
tion. It is a suspicious circumstance that overhangs a 
transaction, or appears on the face of the papers. A 
circumstance which does not alone prove fraud, but 
which warrants inference of fraud, especially where 
there is a concurrence of many such badges. Brennecke 
v. Riemann, Mo., 102 S.W.2d 874, 877. Recognized 
"badges of fraud" include fictitious consideration, false 
statements as to consideration, transactions different 
from usual course of doing business, transfer of all of a 
debtor's property, insolvency, confidential relationship 
of parties, and transfers in anticipation of suit or execu
tion. Hendrix v. Goldman, Mo., 92 S.W.2d 733, 736. 
Badges of servitude. Congressional power to eliminate 
all vestiges of involuntary servitude pursuant to Thir
teenth Amendment to U.S.Const.; Civil Rights Act of 
1866. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 
S.Ct. 2186, 20 L.Ed.2d 1189. 
Bad motive. Intentionally doing a wrongful act know
ing at the time that it is wrongfuL Davis v. Nash 
Central Motors, Mo.App., 332 S.W.2d 475, 480. See Bad 
faith. 
Bad title. One which conveys no property to the pur
chaser of the estate. One which is so radically defective 
that it is not marketable, and hence such that a pur
chaser cannot be legally compelled to accept it. Com
pare Marketable title. 
Baga /breg�/. In old English law, a bag or purse. Thus 
there was the petty-bag-office in the common-law juris
diction of the court of chancery, because all original

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BAGA 
writs relating to the business of the crown were former
ly kept in a little sack or bag, in parvO, bago'. 
Bagavel. In old English law, the citizens of Exeter had 
granted to them by charter from Edward I the collection 
of a certain tribute or toll upon all manner of wares 
brought to that city to be sold, toward the paving of the 
streets, repairing of the walls, and maintenance of the 
city, which was commonly called bagavel, bethugavel 
and chippinggavel. 
Bail, v. To procure release of one charged with an 
offense by insuring his future attendance in court and 
compelling him to remain within jurisdiction of court. 
Manning v. State ex reI. Williams, 190 Oki. 65, 120 P.2d 
980, 981. To deliver the defendant to persons who, in 
the manner prescribed by law, become security for his 
appearance in court. To set at liberty a person arrested 
or imprisoned, on security being taken for his appear
ance on a day and a place certain, which security is 
called "bail," because the party arrested or imprisoned 
is delivered into the hands of those who bind themselves 
for his forthcoming. See also Release on own recogni
zance. 
The object of "bail" in civil cases is either directly or 
indirectly to secure payment of a debt or performance of 
other civil duties, while in criminal cases object is to 
secure appearance of principal before the court when his 
presence is needed. Johnson v. Shaffer, 64 Ohio App. 
236, 28 N.E.2d 765, 767. In its more ancient significa
tion, the word includes the delivery of property, real or 
personal, by one person to another. 
See also Civil bail; Excessive bail; Jump bail. 
Bail, n. Monetary amount for or condition of pretrial 
release from custody, normally set by a judge at the 
initial appearance. The purpose of bail is to ensure the 
return of the accused at subsequent proceedings. If the 
accused is unable to make bail, or otherwise unable to 
be released on his or her own recognizance, he or she is 
detained in custody. The Eighth Amendment (U.S. 
Const.) provides that excessive bail shall not be required. 
The surety or sureties who procure the release of a 
person under arrest, by becoming responsible for his 
appearance at the time and place designated. Those 
persons who become sureties for the appearance of the 
defendant in court. 
Bail absolute. Sureties whose liability is conditioned 
upon the failure of the principal to duly account for 
money coming to his hands as administrator, guardian, 
etc. 
Bail bond. A three-party contract which involves state, 
accused and surety and under which surety guarantees 
state that accused will appear at subsequent proceed
ings. Accredited Surety & Cas. Co., Inc. v. State, for Use 
and Benefit of Hillsborough County, Fla.App., 383 So.2d 
308. 
A written undertaking, executed by the defendant or 
one or more sureties, that the defendant designated in 
such instrument will, while at liberty as a result of an 
order fixing bail and of the execution of a bail bond in 
140 
satisfaction thereof, appear in a designated criminal 
action or proceeding when his attendance is required 
and otherwise render himself amenable to the orders 
and processes of the court, and that in the event he fails 
to do so, the signers of the bond will pay to the court (i.e. 
forfeit) the amount of money specified in the order 
fixing bail. Fed.R.Crim.P. 46; 18 U.S.C.A. § 3141 et seq. 
See also Release on own recog nizance. 
Cash bail bond. A sum of money, in the amount 
designated in an order fixing bail, posted by a defen
dant or by another person on his behalf (surety) with a 
court or other authorized public officer upon condition 
that such money will be forfeited if the defendant does 
not comply with the directions of a court requiring his 
attendance at the criminal action or proceeding in
volved and does not otherwise render himself amenable 
to the orders and processes of the court. 
Un secured bail bond. A bail bond for which the defen
dant is fully liable upon failure to appear in court 
when ordered to do so or upon breach of a material 
condition of release, but which is not secured by any 
deposit of or lien upon property. See Release on own 
recog nizance. 
Bail common. At common law a fictitious proceeding, 
intended only to express the appearance of a defendant, 
in cases where special bail is not required. It is put in 
in the same form as special bail, but the sureties are 
merely nominal or imaginary persons, as John Doe and 
Richard Roe. 3 Bl.Comm. 287. 
Bail court. In old English law and practice, an auxilia
ry court of the court of queen's bench at Westminster, 
wherein points connected more particularly with plead
ing and practice are argued and determined. It has 
been abolished. 
Bail dock. Formerly at the Old Bailey, in London, a 
small room taken from one of the corners of the court, 
and left open at the top, in which certain malefactors 
were placed during trial. 
Bail in error. That given by a defendant who intends to 
bring a writ of error on the judgment and desires a stay 
of execution in the meantime. 
Bail piece. A formal entry or memorandum of the 
recognizance or undertaking of special bail in civil ac
tions, which, after being signed and acknowledged by 
the bail before the proper officer, is filed in the court in 
which the action is pending. 3 Bl.Comm. 29l. 
Bail point scale. System whereby a predetermined 
number of points are given for all positive aspects of the 
defendant's background. The total number of points 
determine whether the defendant will be released on his 
own recognizance or the amount of bail to be set for his 
release. 
Bail to the action or bail above. See Special bail, below. 
Bail to the sheriff or bail below. Persons who under
take that a defendant arrested upon mesne process in a 
civil action shall duly appear to answer the plaintiff; 
such undertaking being in the form of a bond given to 
the sheriff, termed a "bail bond" (q.v.). 3 BI.Comm. 290.

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141 
Sureties who bind themselves to the sheriff to secure the 
defendant's appearance, or his putting in bail to the 
action on the return-day of the writ. 
Civil bail. See that title. 
Common bail. Fictitious sureties formally entered· in 
the proper office of the court. See Bail common, above. 
Special bail. Responsible sureties who undertake as 
bail above. Persons who undertake jointly and several
ly in behalf of a defendant arrested on mesne process in 
a civil action that, if he be condemned in the action, he 
shall pay the costs and condemnation (that is, the 
amount which may be recovered against him), or render 
himself a prisoner, or that they will pay it for him. 3 
Bl.Comm. 291. See Bail to the sheriff or bail below, 
above. 
Straw bail. Nominal or worthless bail. In English law, 
irresponsible persons, or men of no property, who make 
a practice of posting bail for any one who will pay them 
a fee therefor, and who originally, as a mark of their 
purpose, wore straw in their shoes. 
Bailable. Capable of being bailed; admitting of bail; 
authorizing or requiring bail. 
Bailable action. One in which the defendant is entitled 
to be discharged from arrest only upon giving bond to 
answer. 
Bailable offense. One for which the prisoner may be 
admitted to bail. 
Bailable process. Such as requires the officer to take 
bail, after arresting the defendant. That under which 
the sheriff is directed to arrest the defendant and is 
required by law to discharge him upon his tendering 
suitable bail as security for his appearance. 
Bail bond. See Bail. 
Bailee. In the law of contracts, one to whom goods are 
bailed; one to whom goods are entrusted by a bailor; 
the party to whom personal property is delivered under 
a contract of bailment. A species of agent to whom 
something movable is committed in trust for another. 
Smith v. State, 78 Okl.Cr. 343, 148 P.2d 206, 208. Vn
der V.C.C., a person who by warehouse receipt, bill of 
lading or other document of title acknowledges posses
sion of goods and contracts to deliver them. The trans
feree of goods under a bailment, including a warehou
seperson or a carrier. V.C.C. § 7-102. See Gratuitous 
bailee. 
Bailee for hire. A person to whom possession of person
al property is transferred and who is compensated for 
caring for such property; e.g. a mechanic to whom an 
automobile is entrusted for repairs is a bailee for hire. 
See also Bailment (Bailment for mutual benefit). 
Bailee policies. Floating insurance policies which cover 
goods while in possession of bailee without particular 
description in the policy. Gillespie v. Federal Compress 
& Warehouse Co., 37 Tenn.App. 476, 265 S.W.2d 21, 27. 
Bailee's lien. Bailee's right (usually statutory) to retain 
bailed goods for payment of services. 
BAILMENT 
Bailiff. A court officer or attendant who has charge of a 
court session in the matter of keeping order, custody of 
the jury, and custody of prisoners while in the court. 
One to whom some authority, care, guardianship, or 
jurisdiction is delivered, committed, or intrusted. One 
who is deputed or appointed to take charge of another's 
affairs; an overseer or superintendent; a keeper, protec
tor, or guardian; a steward. 
A person acting in a ministerial capacity who has by 
delivery the custody and administration of lands or 
goods for the benefit of the owner or bailor, and is liable 
to render an account thereof. 
Bailiff-errant. A bailiffs deputy. 
Bailiffs of franchises. In old English law, officers who 
performed the duties of sheriffs within liberties or privi
leged jurisdictions, in which formerly the king's writ 
could not be executed by the sheriff. 
Bailiffs of hundreds. In old English law, officers ap
pointed over hundreds, by the sheriffs, to collect fines 
therein, and summon juries; to attend the judges and 
justices at the assises and quarter sessions; and also to 
execute writs and process in the several hundreds. 1 
Bl.Comm. 345. 
Bailiffs of manors. In old English law, stewards or 
agents appointed by the lord (generally by an authority 
under seal) to superintend the manor, collect fines, and 
quit rents, inspect the buildings, order repairs, cut down 
trees, impound cattle trespassing, take an account of 
wastes, spoils, and misdemeanors in the woods and de
mesne lands, and do other acts for the lord's interest. 
High bailiff. An officer formerly attached to an English 
county court. His duties were to attend the court when 
sitting; to serve summonses; and to execute orders, 
warrants, writs, etc. He also had similar duties under 
the bankruptcy jurisdiction of the county courts. 
Special bailiff. A deputy sheriff, appointed at the re
quest of a party to a suit, for the special purpose of 
serving or executing some writ or process in such suit. 
Bailivia Ibeyliviy�/. In old law, a bailiffs jurisdiction, a 
bailiwick; the same as .bailium. See Bailiwick. 
In old English law, a liberty, or exclusive jurisdiction, 
which was exempted from the sheriff of the county, and 
over which the lord of the liberty appointed a bailiff 
with such powers within his precinct as an under-sheriff 
exercised under the sheriff of the county. 
Bailiwick Ibeyl;)wik/. A territorial segment over which 
a bailiff or sheriff has jurisdiction; not unlike a county 
in today's governmental divisions. 
Bailment. A delivery of goods or personal property, by 
one person (bailor) to another (bailee), in trust for the 
execution of a special object upon or in relation to such 
goods, beneficial either to the bailor or bailee or both, 
and upon a contract, express or implied, to perform the 
trust and carry out such object, and thereupon either to 
redeliver the goods to the bailor or otherwise. dispose of 
the same in conformity with the purpose of the trust.

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BAILMENT 
The bailee is responsible for exercising due care toward 
the goods. 
Delivery of personalty for some particular use, or on 
mere deposit, upon a contract, express or implied, that 
after purpose has been fulfilled it shall be redelivered to 
the person who delivered it, or otherwise dealt with 
according to his directions, or kept until he reclaims it, 
as the case may be. Simpkins v. Ritter, 189 Neb. 644, 
204 N.W.2d 383, 385. 
Generally, no fiduciary relationship is created by a 
bailment and hence it is not accurate to refer to the 
transfer as "in trust", because no trustee-beneficiary 
relationship is created. 
See also Pawn; Pledge. 
Actual bailment. One which exists where there is ei
ther: (a) an "actual delivery," consisting in giving to the 
bailee or his agent the real possession of the chattel, or 
(b) a "constructive delivery," consisting of any of those 
acts which, although not truly comprising real posses
sion of the goods transferred, have been held by legal 
construction equivalent to acts of real delivery. 
Bailment for hire. A contract in which the bailor agrees 
to compensate the bailee. See also Bailee for hire, supra; 
and Bailment for mutual benefit, below. 
Bailment for mutual benefit. One in which the parties 
contemplate some price or compensation in return for 
benefits flowing from the bailment, necessarily involv
ing an express or implied agreement or undertaking to 
that effect. For example, delivery of automobile to one 
who, for a consideration, undertakes to repair it. 
Bailment lease. A legal method by which one desiring 
to purchase an article but unable to pay therefor at the 
time, may secure possession thereof with the right to use 
and enjoy it as long as he pays stipulated rentals and 
becomes absolute owner after completing such install
ment payments, on payment of an additional sum which 
may be nominal. This right or option is common in 
auto lease agreements. 
Constructive bailment. One arising where the person 
having possession of a chattel holds it under such cir
cumstances that the law imposes upon him the obli
gation to deliver it to another. Wentworth v. Riggs, 159 
App.Div. 899, 143 N.Y.S. 955, 956. See also Involuntary 
bailment, below. 
Gratuitous bailment. Another name for a depositum or 
naked bailment, which is made only for the benefit of 
the bailor and is not a source of profit to the bailee. 
Involuntary bailment. One arising by the accidental 
leaving of personal property in the possession of any 
person without negligence on the part of its owner. See 
Constructive bailment, above. 
Lucrative bailment. One which is undertaken upon a 
consideration and for which a payment or recompense is 
to be made to the bailee, or from which he is to derive 
some advantage. See Bailment for hire, above. 
Special bailment. In general, a bailment in which by 
law a bailee is given greater duties and liabilities than 
142 
those imposed on an ordinary bailee. Innkeepers and 
common carrier bailees are examples. 
Bailor. The party who bails or delivers goods to another 
(bailee) in the contract of bailment. The transferor of 
goods under a bailment. 
Bailout. Various procedures whereby the owners of an 
entity can obtain its profits with favorable tax conse
quences. With corporations, for example, the bail-out of 
corporate profits without dividend consequences might 
be the desired objective. The alternative of distributing 
the profits to the shareholders as dividends generally is 
less attractive, since dividend income is taxed as ordi
nary income. See Preferred stock (Preferred stock bail
out). 
Acquisition of a corporation for the principal purpose 
of favorable tax consequences by securing benefits of 
deduction, credit or other allowance which the acquiring 
corporation would not otherwise enjoy. I.R.C. § 269. 
Bailout stock. When preferred stock is issued as a stock 
dividend and is non-taxable, it is called bailout stock. 
I.R.C. § 305. 
Bait and switch. A deceptive sales practice. Such 
tactic usually involves advertising a low-priced product 
to lure customers to a store, then inducing them to buy 
higher-priced models by failing to stock sufficient quan
tities of the lower-priced item to satisfy demand, or by 
disparaging the less-expensive product. Such practices 
are prohibited by statute in most states. See Model 
Penal Code § 224.7(5). Tashof v. F. T. C., 437 F.2d 707, 
709. 
Balance. The difference between the sum of debit en
tries minus the sum of credit entries in an account. If 
positive, the difference is called a debit balance; if 
negative, a credit balance. 
Often used in the sense of residue or remainder, and, 
in a general sense, may be defined as what remains or is 
left over. 
See also Average daily balance. 
Balance of payments. The difference between all pay
ments made by one nation to all other nations in the 
world and the payments made to that nation by all 
other nations. An official accounting record that fol
lows double-entry bookkeeping practices and records all 
of a country's foreign transactions. The country's ex
ports are recorded as credits and imports as debits. 
Balance of power. In international law, a distribution 
and an opposition of forces, forming one system, so that 
no nation or country shall be in a position, either alone 
or united with others, to impose its will on any other 
nation or country or interfere with its independence. 
See also Separation of powers. 
Balance of trade. Part of the balance of payments. It 
shows the net figure for the value of all the goods 
imported and exported by one nation. An excess of 
imports over exports constitutes a trade deficit. 
Balance sheet. A statement of financial position of any 
economic unit, disclosing as at a given moment of time,

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143 
the value of its assets, liabilities, and equity of the 
owners in conformity with generally accepted account
ing principles. See also Profit and loss statement. 
Consolidated balance sheet. A statement of financial 
position which combines the assets, liabilities, and stock
holders equity of a parent corporation and its subsidiary. 
Net balance. In commercial usage, the balance of the 
proceeds, as from a sale of stock, after deducting the 
expenses incident to the sale. 
Balancing of interests. Constitutional doctrine invoked 
when court is examining interplay between state action 
involving intrastate commerce and federal laws regard� 
ing interstate commerce. If there is legitimate state 
interest and if there is no clear congressional intent to 
preempt the field, state action will be upheld. Southern 
Pacific Co. v. State of Arizona ex rel., 325 U.S. 761, 65 
S.Ct. 1515, 89 L.Ed. 1915. 
Balancing test. A constitutional doctrine in which the 
court weighs the right of an individual to certain rights 
guaranteed by the Constitution with the rights of a state 
to protect its citizens from the invasion of their rights; 
used in cases involving freedom of speech and equal 
protection. 
Balancing the equities. Doctrine commonly invoked in 
cases involving, for example, encroachment of building 
on another's land in which court will deny equitable 
relief to offended party in favor of money damages if the 
encroachment was made innocently and by mistake (not 
intentionally) and if encroachment is slight as compared 
with injury to offending party if he is required to re
move. Adamec v. McCray, 63 Wash.2d 217, 386 P.2d 
427, 428. 
Baliva Ib::llaYV::l/. (Spelled also Balliva; equivalent to 
BalivatUs, Balivia). L. Lat. In old English law, a 
bailiwick; the jurisdiction of a sheriff; the whole district 
within which the trust of the sheriff was to be executed. 
3 Bl.Comm. 283. 
Balivo amovendo. See Ballivo amovendo. 
Ballastage. A toll paid for the privilege of taking up 
ballast from the bottom of a port or harbor. This arises 
from the property in the soil. 
Ballistics Ib::llist::lks/. The science of gun examination 
frequently used in criminal cases, especially cases of 
homicide, to determine the firing capacity of a weapon, 
its fireability, and whether a given bullet was fired from 
a particular gun. 
Ballium Ibeyl(i)Y::lm/. A fortress or bulwark; also bail. 
Ballivo amovendo Ib::llayvow eymowvendow I. An an
cient writ to remove a bailiff from his office for want of 
sufficient land in the bailiwick. 
Balloon mortgage. A mortgage providing for specific 
payments at stated regular intervals, with the final 
payment considerably more than any of the periodic 
payments. 
Balloon note. A form of promissory note which com
monly calls for minimum payments of principal, if any, 
BALLOT·BOX 
and the payment of interest at regular intervals, but 
which requires a substantial payment of principal at the 
end of the term; the final payment frequently repre
senting essentially all the principal. 
Balloon payment. The final payment of principal un
der a balloon note; commonly representing essentially 
the. entire principal. See Balloon mortgage; Balloon 
note. 
Ballot. Derived from ballotta, a round bullet, used for 
casting a vote. Process or means of voting, usually in 
secret, by written or printed tickets or slips of paper, or 
voting machine. Piece of paper or levers on voting 
machine on which the voter gives expression to his 
choice. Sawyer Stores v. Mitchell, 103 Mont. 148, 62 
P.2d 342, 348. A means, or instrumentality, by which a 
voter secretly indicates his will or choice so that it may 
be recorded as being in favor of a certain candidate or 
for or against a certain proposition or measure. Porter 
v. Oklahoma City, Okl., 446 P.2d 384, 39l. 
The whole amount of votes cast. Also, list of candi
dates running for office. 
Australian ballot. See Australian ballot. 
Joint ballot. In parliamentary practice, an election or 
vote by ballot participated in by the members of both 
houses of a legislative assembly sitting together as one 
body, the result being determined by a majority of the 
votes cast by the joint assembly thus constituted, instead 
of by concurrent majorities of the two houses. 
Massachusetts ballot. See that title. 
Mutilated ballot. One from which the name of the 
candidate is cut out. One which is destitute or deprived 
of some essential or valuable part; greatly shortened. 
Office block ballot. A ballot form on which the names 
of all candidates for a particular office are listed under 
the office title. Listings are made under various titles 
regardless of the various party affiliations of the candi
dates. 
Official ballot. Depending on its use in local statutes, 
this term has a varied meaning. It may refer to a ballot 
which has been furnished by the clerk; or it may con
template that a ballot must have been printed under the 
supervision of a designated member of the electoral 
board, sealed by the board, and by resolution declared to 
be one of the official ballots for the election to be held. 
Party column ballot. Ballot form on which the names of 
all candidates of each political party are placed in sepa
rate columns under party names and symbols, regard
less of the offices sought by the candidates. 
Secret ballot. The expression by ballot, voting machine, 
or otherwise, but in no event by proxy, of a choice with 
respect to any election or vote taken upon any matter, 
which is cast in such a manner that the person express
ing such choice cannot be identified with the choice 
expressed. 
Ballot-box. A locked box wherein ballots are deposited.

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BALNEARII 
Balnearii Ibrelniyeriyay/. In the Roman law, those who 
stole the clothes of bathers in the public baths. 4 
BI.Comm. 239. 
Ban. In old English and civil law, a proclamation; a 
public notice; the announcement of an intended mar
riage. An excommunication; a curse, publicly pro
nounced. A proclamation of silence made by a crier in 
court before the meeting of champions in combat. A 
statute, edict, or command; a fine, or penalty. An 
expanse; an extent of space or territory; a space inclos
ed within certain limits; the limits or bounds them
selves. An open field; the outskirts of a village. A 
privileged space or territory around a town, monastery, 
or other place. 
Bane Ibre1Jk/ba1Jk/. Bench; the place where a court 
permanently or regularly sits; the seat of judgment;. as, 
banc Ie roy, the king's bench; banc Ie common pleas, the 
bench of common pleas. 
The full bench, full court. A "sitting en banc" is a 
meeting of all the judges of a court as distinguished 
from the sitting of a single judge or panel of judges. 
Banci narratores Ibrensay mer;)toriyz/. In old English 
law, advocates; countors; serjeants. Applied to advo
cates in the common pleas courts. 1 BI.Comm. 24. 
Banco Ibre1Jkow I. Itai. A seat or bench of justice; also, 
in commerce, a word of Italian origin signifying a bank. 
Also a small tract of land on opposite side of river from 
country to which it belongs, and so existing by virtue of 
an avulsive change in the river. San Lorenzo Title & 
Improvement Co. v. City Mortgage Co., Tex.Civ.App., 48 
S.W.2d 310, 314. See also Banc. 
Bancus Ibre1Jk;)s/. A high seat, or seat of distinction; a 
seat of judgment, or tribunal for the administration of 
justice. Often used for the court itself; thus, the Eng
lish court of common pleas was formerly called Bancus. 
Bancus reginre Ibre1Jk;)s r;)jayniy I. The queen's bench. 
See Queen's bench. 
Bancus regis Ibre1Jk;)s riyj;)s/. The king's bench; the 
supreme tribunal of the king after parliament. 3 BI. 
Comm. 41. 
Bancus superior Ibre1Jk;)s s;)piriy;)r/. The upper bench. 
The king's bench was so called during the Protectorate. 
Bandit. An outlaw; a man banned, or put under a ban; 
a brigand or robber. Banditti, a band of robbers. 
Banditry. Organized robbery; brigandage; form of 
crime practiced by outlaws and plunderers. 
Bane. A malefactor. Also a public denunciation of a 
malefactor; the same with what was called "hutesium, " 
hue and cry. 
Baneret, or banneret Ibren;)r;)t/. In old English law, a 
knight made in the field, by the ceremony of cutting off 
the point of his standard, and making it, as it were, a 
banner. Knights so made were accounted so honorable 
that they were allowed to display their arms in the royal 
army, as barons did, and could bear arms with support
ers. They were sometimes called "vexillarii. " 
144 
A degree of honor next after a baron's, when con
ferred by the king; otherwise, it ranks after a baronet. 
1 Bl.Comm. 403. 
Bani Ibeynay I. Deodands (q. v.). 
Banishment. A punishment inflicted upon criminals, by 
compelling them to leave a country for a specified period 
of time, or for life. Synonymous with exilement or 
deportation, importing a compulsory loss of one's coun
try. See also Deportation. 
Bank. A bank is an institution, usually incorporated, 
whose business it is to receive money on deposit, cash 
checks or drafts, discount commercial paper, make 
loans, and issue promissory notes payable to bearer, 
known as bank notes. U.C.C. § 1-201(4). American 
commercial banks fall into two main categories: state 
chartered banks and federally chartered national banks. 
See also Banking. 
A bench or seat; the bench of justice; the bench or 
tribunal occupied by the judges; the seat of judgment; a 
court. The full bench, or full court; the assembly of all 
the judges of a court. See Banc. 
An acclivity; an elevation or mound of earth, espe
cially that which borders the sides of a water course. 
The land adjacent to a river. That part of a stream 
which retains the water. The elevation of land which 
confines the waters of a stream in their natural channel 
when they rise the highest and do not overflow the 
banks. A water-washed and relatively permanent eleva
tion or acclivity at the outer line of a river bed which 
separates the bed from the adjacent upland, and serves 
to confine the waters within the bed and to preserve the 
course of the river. The land lying between the edge of 
the water of a stream at its ordinary low stage and the 
line which the edge of the water reaches in its ordinary 
high stage. An elevation of land which confines the 
waters of a stream when they rise out of the bed. 
Neither the line of ordinary high-water mark, nor of 
ordinary low-water mark, nor of a middle stage of water 
can be assumed as the line dividing the bed from the 
banks. Banks are fast land, on which vegetation appro
priate to such land in the particular locality grows 
wherever the bank is not too steep to permit such 
growth, and bed is soil of a different character, and 
having no vegetation, or only such as exists, when 
commonly submerged in water. On the borders of navi
gable streams, where there are levees established ac
cording to law, the levees form the "banks of the river." 
Advising bank. A bank which gives notification of the 
issuance of a credit by another bank. U.C.C. § 5-103(e). 
Bank acceptance. Draft drawn on and accepted by 
bank. 
Bank-account. A sum of money placed with a bank or 
banker, on deposit, by a customer, and subject to be 
drawn out on the latter's check. The statement or 
computation of the several sums deposited and those 
drawn out by the customer on checks, entered on the 
books of the bank and the depositor's passbook. Any 
account with a bank, including a checking, time, interest

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145 
or savings account. V.C.C. § 4-104(a). See also Joint 
bank account. 
Bank bill. See Bank note, below. 
Bank book. A book kept by a customer of a bank, 
showing the state of his account with it. See Pass-book. 
Bank call. Demand made on bank by state or federal 
supervisory personnel for examination of balance sheets. 
Bank charter. Document issued by appropriate federal 
or state authority which permits corporation to com
mence business as a bank. 
Bank credit. A credit with a bank by which, on proper 
credit rating or proper security given to the bank, a 
person receives liberty to draw to a certain extent 
agreed upon. 
Bank debit. Total of checks and other commercial pa
per charged to deposit accounts. 
Bank deposit. Cash, checks, or drafts placed with bank 
for credit to depositor's account. Placement of money in 
bank thereby creating contract between bank and depos
itor. V.C.C. § 4-103. 
Demand deposit. Right to withdraw deposit at any 
time. 
Time deposit. Deposit which is subject to notice (e.g. 
thirty days) before withdrawal. 
Bank depositor. One who delivers to or leaves with a 
bank a sum of money subject to his order. Wharton v. 
Poughkeepsie Sav. Bank, 262 App.Div. 598, 31 N.Y.S.2d 
311, 313. 
Bank draft. A check, draft, or other order for payment 
of money, drawn by an authorized officer of a bank upon 
either his own bank or some other bank in which funds 
of his bank are deposited. Perry v. West, 110 N.H. 351, 
266 A.2d 849, 852. An order to pay that is similar to a 
check, except that it is not payable on demand. Instead, 
a bank draft is payable when the issuing firm accepts it. 
Bank note. A promissory note issued by a bank or 
banker authorized to do so, payable to bearer on de
mand, and intended to circulate as money. See Federal 
reserve notes. 
Bank of circulation. One which issues bank notes pay
able to bearer. See Bank of issue, below. 
Bank of deposit. A savings bank or any other bank 
which receives money on deposit. 
Bank of discount. One which lends money on collateral 
or by means of discounts of commercial paper. 
Bank of issue. Bank with authority to issue notes 
intended to circulate as currency. 
Bank rate. Interest rate charged customers on loans. 
See Interest; Legal interest. 
Bank statement. Financial statement showing financial 
condition of bank at a given time. Federal (national 
banks) and state laws require that such statements be 
published several times a year. 
BANK 
Bank stock. Shares in the capital of a bank; shares in 
the 'property of a bank. 
Bank teller. See Teller. 
Branch banking. See Branch bank. 
Central banks. Federal Reserve banks. 
Collecting bank. Any bank handling the item for collec
tion except the payor bank. V.C.C. § 4-105(d). See also 
Collecting bank. 
Commercial bank. See Commercial bank. 
Confirming bank. A bank which engages either that it 
will itself honor a credit already issued by another bank 
or that such a credit will be honored by the issuer or a 
third bank. V.C.C. § 5-103(f). See also Confirming bank. 
Correspondent bank. Bank which acts as agent for 
another bank, or engages in an exchange of services 
with that bank, in a geographical area to which the 
other does not have direct access. 
Custodian bank. Any bank or trust company which is 
supervised and examined by state or federal authority 
having supervision over banks and which is acting as 
custodian for a clearing corporation. V.C.C. § 8-102(4). 
Depository bank. The first bank to which an item is 
transferred for collection even though it is also the 
payor bank. V.C.C. § 4-105(a). 
Export-import bank. See Export-Import Bank. 
Federal land bank. See Federal Land Banks. 
Federal reserve bank. See Federal Reserve System. 
Intermediary bank. Any bank to which an item is 
transferred in course of collection except the depositary 
or payor bank. U.C.c. § 4-105(c). See also Intermedia ry 
bank. 
Land bank. See Land bank. 
Member bank. See Member bank. 
Mutual savings bank. See Mutual savings bank. 
National bank. See National bank. 
Non-member bank. Bank that is not a member of the 
Federal Reserve Board and, as such, is only governed by 
laws of state where chartered. 
Payor bank. A bank by which an item is payable as 
drawn or accepted. V.C.C. § 4-105(b). 
Presenting bank. Any bank presenting an item except a 
payor bank. V.C.C. § 4-105(e). 
Remitting bank. Any payor or intermediary bank re
mitting for an item. V.C.C. § 4-105(f). 
Savings and loan bank. See Mutual savings bank; Sav
ings and loan association. 
Savings bank. Type of bank that receives deposits, and 
pays interest thereon, and makes certain types of loans 
(e.g. home financing loans), but does not provide check
ing services. See Mutual savings bank; Savings and loan 
association. Compare Commercial bank. 
World bank. See that title.

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BANKABLE PAPER 
Bankable paper. Notes, checks, bank bills, drafts and 
other securities for money, received as cash by banks. 
Bank bill. See Bank (Bank note). 
Bank clearings. See Clearinghouse. 
Banker. In general sense, person that engages in busi
ness of banking. In narrower meaning, a private person 
who keeps a bank; one who is engaged in the business of 
banking without being incorporated. One who carries 
on the business of banking by receiving money on depos
it with or without interest, by buying and selling bills of 
exchange, promissory notes, bonds or stock, or other 
securities, and by loaning money without being incorpo
rated. 
Vnder some statutes, an individual banker, as distin
guished from a "private banker" (q.v.), is a person who, 
having complied with the statutory requirements, has 
received authority from the state to engage in the busi
ness of banking, while a private banker is a person 
engaged in banking without having any special privi
leges or authority from the state. 
See also Investment banker. 
Person who holds stake in gambling game or wager. 
Bankerout. Eng. Bankrupt; insolvent; indebted be
yond the means of payment. 
Banker's acceptance. A draft accepted by a bank 
usually for the purpose of financing a sale of goods to or 
by the bank's customer. A bill of exchange draft pay
able at maturity that is drawn by a creditor against his 
or her debtor. Banker's acceptances are short-term 
credit instruments most commonly used by persons or 
firms engaged in international trade. They are compa
rable to short-term government securities (for example, 
Treasury Bills) and may be sold on the open market at a 
discount. 
Banker's lien. A lien which a banker has by virtue of 
which he can appropriate any money or property in his 
possession belonging to a customer to the extinguish
ment of any matured debt of such customer to the bank, 
provided such property or money has not been charged, 
with the knowledge of the bank, with the subservience 
of a special burden or purpose, or does not constitute a 
trust fund of which the banker has notice. 
Banker's note. A commercial instrument resembling a 
bank note in every particular except that it is given by a 
private banker or unincorporated banking institution. 
Bank holding company. Any company which has con
trol over any bank or over any company that is or 
becomes a bank holding company. A company is con
sidered to have control if it directly or indirectly or 
acting through one or more other persons owns, con
trols, or has power to vote 25% or more of any class of 
voting securities of the bank or company; the company 
controls in any manner the election of a majority of the 
directors or trustees of the bank or company; or, it is 
determined that the company directly or indirectly exer
cises a controlling influence over the management or 
146 
policies of the bank or company. 12 V.S.C.A. §§ 1841-
1850. 
Bank Holding Company Act. Federal law which gov
erns any company which directly or indirectly owns or 
controls, with power to vote, more than 25% of voting 
shares of each of two or more banks. See 12 V.S.C.A. 
§ 184 et seq. 
Bank holiday of 1933. Presidential Proclamations No. 
2039, issued March 6, 1933, and No. 2040, issued March 
9, 1933, temporarily suspended banking transactions by 
member banks of the Federal Reserve System. Normal 
banking functions were resumed on March 13, subject to 
certain restrictions. The first proclamation, it was held, 
had no authority in law until the passage on March 9, 
1933, of a ratifying act (12 V.S.C.A. § 95b). The present 
law forbids member banks of the Federal Reserve Sys
tem to transact banking business, except under regula
tions of the Secretary of the Treasury, during an emer
gency proclaimed by the President. 12 V.S.C.A. § 95. 
Banking. The business of banking, as defined by law 
and custom, consists in the issue of notes payable on 
demand intended to circulate as money when the banks 
are banks of issue; in receiving deposits payable on 
demand; in discounting commercial paper; making 
loans of money on collateral security; buying and sell
ing bills of exchange; negotiating loans, and dealing in 
negotiable securities issued by the government, state 
and national, and municipal and other corporations. 
Mercantile Bank v. New York, 121 V.S. 138, 156, 7 S.Ct. 
826, 30 L.Ed. 895; In re Prudence Co., D.C.N.Y., 10 
F.Supp. 33, 36. 
Investment banking. Business of underwriting or dis
tributing bond, stock or other securities issues. 
Banking Act of 1933. See Glass-Steagall Act. 
Banking a deal. Means making to one who wishes to 
consummate a deal a loan of money on collateral for a 
consideration which may consist of interest, a fee, or a 
part of the securities or property involved in the deal. 
Cray, McFawn & Co. v. Hegarty, Conroy & Co., D.C.N.Y., 
27 F.Supp. 93, 99. 
Banking commission. State regulatory body charged 
with supervision of banking institutions. See also Fed
eral Reserve Board of Governors with respect to regula
tion of national banks. 
Banking day. That part of any day on which a bank is 
open to the public for carrying on substantially all of its 
banking functions. V.C.C. § 4-104(c). 
Banking game. Gambling game at which money is bet 
or hazarded. 
Banking hours. A term which, in addition to the regu
lar hours, includes time to allow presentment, after 
closing, to the bank returning a check, if such present
ment is necessary in fact. Columbia-Knickerbocker 
Trust Co. v. Miller, 156 A.D. 810, 142 N.Y.S. 440, 445. 
Bank night. A device by which a theater provides a 
registration book which any person over eighteen years 
of age, whether a patron of the theater or not, may sign.

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147 
The book is placed in the lobby or outside the doors of 
the theater and no charge is made for registration nor 
need one who does so buy a ticket to the theater. A 
number is given to each name. On stated occasions, the 
numbers representing all the names registered are 
placed in a container on the stage of the theater and one 
number is drawn. The name of the person having that 
registration number is announced both inside and out
side the theater and on coming forward within a certain 
time, he receives a sum of money which the theater 
provides from its own funds. If the person whose num
ber is drawn is outside the theater, he is permitted to 
enter and claim the award without paying the admis
sion. If he does not come forward within the time set, 
the money is added to the sum to be awarded on the 
next bank night. Vnder the plan, various safeguards 
are imposed on the operation to insure fairness in the 
allotment of the money. If not a lottery, a bank night is 
at least a gift en terprise. But it is generally considered 
to be a lottery. Furst v. A. & G. Amusement Co., 128 
N.J.L. 311, 25 A.2d 892, 893; Commonwealth v. Lund, 
142 Pa.Super. 208, 15 A.2d 839, 846. 
Bankrupt. The state or condition of a person (individu
al, partnership, corporation, municipality) who is unable 
to pay its debts as they are, or become, due. The 
condition of one whose circumstances are such that he is 
entitled to take the benefit of the federal bankruptcy 
laws. The term includes a person against whom an 
involuntary petition has been filed, or who has filed a 
voluntary petition, or who has been adjudged a bank
rupt. The word "bankrupt" is not used in the federal 
Bankruptcy Code. "Debtor" is now the term used. See 
Code § 101. 
See Arrangement with creditors; Bankruptcy Code; 
Bankru ptcy proce edings; Composition with creditors; Con
templation of bankruptcy; Insolvency. 
Bankruptcy Code. A federal law (11 V.S.C.A.) for the 
benefit and relief of creditors and their debtors in cases 
in which the latter are unable or unwilling to pay their 
debts. The Bankruptcy Code of 1978 substantially re
vised and replaced the Bankruptcy Act of 1898. 
Straight bankruptcy is in the nature of a liquidation 
proceeding and involves the collection and distribution 
to creditors of all the bankrupt's non-exempt property 
by the trustee iIi the manner provided by the Code 
(Chapter 7). The debtor rehabilitation provisions of the 
Code (Chapters 11, 12 and 13) differ, however, from the 
straight bankruptcy in that the debtor looks to rehabili
tation and reorganization, rather than liquidation, and 
the creditor looks to future earnings of the bankrupt, 
rather than property held by the bankrupt to satisfy 
their claims; see, e.g., Bankruptcy proceed ings (Business 
reorganizations, Wage earner's plan). 
Bankruptcy proceedings. General term for the various 
types of proceedings under the Bankruptcy Code (11 
V.S.C.A.) that are initiated either by an insolvent indi
vidual or business (termed a voluntary bankruptcy) or 
by creditors (termed an involuntary bankruptcy) seeking 
to either have the debtor's remaining assets distributed 
BANKRUPTCY PROCEEDINGS 
among the creditors and to thereby discharge the debtor 
from any further obligation or to restructure and reor
ganize the insolvent's debt structure. See Bankruptcy 
Code, supra, and various types of bankruptcy below. 
See also Adequate protection; Automatic stay; Composi
tion with creditors; Core proceed ing; Cram down; Debtor 
in possession; Workout. 
Adjudication of bankruptcy. The judgment or decree of 
the bankruptcy court that a person against whom a 
petition in bankruptcy has been filed, or who has filed 
his voluntary petition, be ordered and adjudged to be a 
bankrupt. See Bankruptcy discharge, below. 
Bankruptcy courts. Federal courts which are concerned 
exclusively with the administration of bankruptcy pro
ceedings and presided over by a bankruptcy judge. Le
gal bankruptcy is declared by such courts. 28 V.S.C.A. 
§ 151. Bankruptcy courts exercise jurisdiction as gener
ally provided in 28 V.S.C.A. § 1334. See also 11 V.S. 
C.A. § 105. 
Bankruptcy discharge. Order of Bankruptcy Court 
which discharges debtor from all dischargeable obli
gations and debts. For effect of, and exceptions to, 
discharge, see Bankruptcy Code §§ 523, 524, 727. 
Bankruptcy distribution. After payment of administra
tion, priority and other debts and expenses of bankrupt 
estate, trustee in bankruptcy makes pro rata distribu
tion to creditors. See Bankruptcy Code § 726. 
Bankruptcy estate. The "bankruptcy estate" is com
prised of all legal and equitable interests in property of 
debtors as of filing of bankruptcy petition. Matter of 
Madden, Bkrtcy.N.J., 18 B.R. 18, 19. 11 V.S.C.A. § 541 
et seq. 
Bankruptcy forms. Official forms used in Bankruptcy 
Court for most matters (e.g. petitions, schedules). 
Bankruptcy rules. Rules governing proceedings in bank
ruptcy courts; many of which make the Federal Rules of 
Civil Procedure and Evidence applicable in adversary 
proceedings. 
Bankruptcy schedules. Official forms for listing of debt
or's assets, liabilities, and all unsecured creditors. 
Bankruptcy trustee. Person appointed by Bankruptcy 
Court to take charge of debtor estate, to collect assets, to 
bring suit on debtor's claims, to defend actions against' 
it, and otherwise administer debtor's estate; he has 
power to examine debtor, to initiate actions to set aside 
preferences, etc. 11 V.S.C.A. § 321 et seq., 704; 28 
V.S.C.A. § 581 et seq. 
Business reorganizations (Chapter 11). When a debtor 
business entity realizes that it will become insolvent or 
will be unable to pay its debts as they mature, it can 
petition for reorganization under Chapter 11 of the 
Bankruptcy Code. The debtor business normally is per
mitted to continue its operations under court supervi
sion until some plan of reorganization is approved by 
two-thirds of the creditors. If the business is insolvent 
at the time a petition for reorganization is filed, a 
majority of the shareholders must also approve the plan.

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BANKRUPTCY PROCEEDINGS 
If agreement cannot be reached, then the court will 
supervise liquidation proceedings for the business as in 
any other situation of bankruptcy. See also Family 
Farmer Bankruptcy, below. 
Family farmer bankruptcy (Chapter 12). Chapter 12 of 
the Bankruptcy Code provides special debt repayment 
relief for a "family farmer with regular income" whose 
annual income is sufficiently stable and regular to en
able such farmer to make payments under a plan as 
provided under this Chapter. 
Involuntary proceedings. Creditors of an insolvent debt
or may initiate proceedings under the Bankruptcy Code, 
thereby in effect forcing the debtor into bankruptcy. 
See Straight bankruptcy, below. 
Straight bankruptcy (Chapter 7). A proceeding designed 
to liquidate the debtor's property, pay off his or her 
creditors, and discharge the debtor from his or her other 
debts. It can be either voluntary (started by the debtor 
himself or herself) or involuntary (started by the debt
or's creditors). Compare Business reorganizations (Chap
ter 11); Wage earner's plan (Chapter 13, this topic, which 
are rehabilitative proceedings. 
Voluntary proceedings. A proceeding under the Bank
ruptcy Code by which a debtor initiates action either to 
rehabilitate his business (e.g., Chapter 11 reorganization) 
or to liquidate (e.g., Chapter 7 liquidation). 
Wage earner's plan (Chapter 13). Under Chapter 13 of 
the Bankruptcy Code, any insolvent debtor who is a 
wage earner (earns wages, salary, or commission) can 
formulate and file a plan with the court that provides 
the debtor with additional time to pay off unsecured 
creditors. The debtor's plan must provide that future 
earnings will be subject to the supervision and control of 
the trustee until these debts are satisfied. A plan made 
in good faith and acceptable to the unsecured creditors 
will be confirmed by the court. Should the wage earner 
ultimately be unable to pay the debts, Chapter 7 liqui
dation is still an available alternative. 
Bank Secrecy Act. Enacted in 1970, this statute autho
rizes the Secretary of the Treasury to prescribe by 
regulation certain recordkeeping and reporting require
ments for banks and other financial institutions in the 
. United States. The purpose of the Act is to require the 
maintenance of records, and the making of certain re
ports which are highly useful in criminal, tax, or regula
tory investigations or proceedings. 
Title I of the Act, and the implementing regulations, 
require financial institutions to maintain records of the 
identities of their customers, to make microfilm copies of 
certain checks drawn on them, and to keep records of 
certain other items. Title II of the Act and its imple
menting regulations require reports of certain domestic 
and foreign currency transactions. California Bankers 
Assn. v. Shultz, 1974, 416 U.S. 21, 94 S.Ct. 1494, 39 
L.Ed.2d 812. 12 U.S.C.A. §§ 1730d, 1829b, 1951-1959, 
and 31 U.S.C.A. §§ 1051-1062, 1081-1083, 1101-1105, 
1121-1122. 
148 
Banleuca Ibrenl(y)uwk;)/. (Same as the French ban
lieue). An old law term, signifying a space or tract of 
country around a city, town, or monastery, distinguished 
and protected by peculiar privileges. 
Banni Ibrenayl or bannitus Ibren;)d;)sl. In old law, one 
under a ban (q.v.); an outlaw or banished man. 
Banni nuptiarum Ibrenay n;)pshiyer;)m/. L. Lat. In old 
English law, the banns of matrimony. 
Bannitio Ibrenish(iy)ow/. Banishment; expulsion by a 
ban or public proclamation. 
Bannitus Ibren;)t;)sl. See Banni. 
Banns of matrimony. Public notice or proclamation of 
a matrimonial contract, �nd the intended celebration of 
the marriage of the parties in pursuance of such con
tract. Such announcement is required by certain reli
gions to be made in a church or chapel, during service, 
on three consecutive Sundays before the marriage is 
celebrated. The object is to afford an opportunity for 
any person to interpose an objection if he knows of any 
impediment or other just cause why the marriage should 
not take place. 
Bar. The court, in its strictest sense, sitting in full term. 
The presence, actual or constructive, of the court. Thus 
a trial at bar is one had before the full court, distin
guished from a trial had before a single judge at nisi 
prius. So the "case at bar" is the case now before the 
court and under its consideration; the case being tried 
or argued. 
In another sense, the whole body of attorneys and 
counsellors, or the members of the legal profession, 
collectively, who are figuratively called the "bar". They 
are thus distinguished from the "bench," which term 
denotes the whole body of judges. Bar associations of 
attorneys may be either national, state, or local. See 
Bar association. Compare Bench. 
In the practice of legislative bodies, the outer bound
ary of the house; therefore, all persons, not being mem
bers, who wish to address the house, or are summoned to 
it, appear at the bar for that purpose. 
In the law of contracts, an impediment, obstacle, or 
preventive barrier. Thus, relationship within the pro
hibited degrees is a bar to marriage. In this sense also 
we speak of the "bar of the statute of limitations." 
That which defeats, annuls, cuts off, or puts an end to. 
Thus, a provision "in bar of dower" is one which has the 
effect of defeating or cutting off the dower-rights which 
the wife would otherwise become entitled to in the 
particular land. 
In pleading, a special plea, constituting a sufficient 
answer to an action at law; so called because it barred, 
i.e., prevented, the plaintiff from further prosecuting it 
with effect, and, if established by proof, defeated and 
destroyed the action altogether. Called a special "plea 
in bar." It may be further described as a plea or 
peremptory exception of a defendant to destroy the 
plaintiffs action. Under Fed.Rules Civ.Proc., pleas in 
bar are abolished in favor of affirmative pleading of 
defenses in answer. Rule 8(c). See Plea (Plea in bar).

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149 
With respect to claim preclusion, a valid and final 
personal judgment on the merits against a claimant 
precludes (bars) a later suit on the same claim or cause 
of action. It is the principle that a party may not 
relitigate a cause of action which has been determined 
previously. In re Johnson, Bkrtcy.Minn., 13 B.R. 342, 
346. 
A judgment rendered in a case is a "bar" to further 
action in the state in which it was rendered and in all 
other jurisdictions if the court which rendered it has 
required jurisdiction and if the subsequent action is 
brought by a party to first action or his privy. See 
Collateral estoppel doctrine; Double jeopardy; Issue pre
clusion; Res (Res judicata). 
A particular part of the court-room; for example, the 
place where prisoners stand at their trial, hence the 
expression "prisoner at the bar." 
In England, a partition or railing running across a 
court-room, intended to separate the general public from 
the space occupied by the judges, counsel, jury, and 
others concerned in the trial of a cause. In the English 
courts it is the partition behind which all outer-barris
ters and every member of the public must stand. Solici
tors being officers of the court, are admitted within it; 
as are also queen's counsel, barristers with patents of 
precedence, and serjeants, in virtue of their ranks. Par
ties who appear in person also are placed within the bar 
on the floor of the court. 
Bar admission. Act by which one is licensed to practice 
before courts of a particular state or jurisdiction after 
satisfying requirements such as bar examination, period 
of residency or admission on grounds of reciprocity after 
period of years as member of bar of another jurisdiction. 
Baragaria. Span. A concubine, whom a man keeps 
alone in his house, unconnected with any other woman. 
Bar association. An association of members of the legal 
profession. Such associations have been organized on 
the national (American Bar Association; Federal Bar 
Association), state, county, and even on city levels (e.g., 
New York City Bar Ass'n). The first was established in 
Mississippi in 1825, but it is not known to have had a 
continued existence. An association of Grafton and 
Coos counties in New Hampshire had an existence be
fore 1800, and probably a more or less continuous life 
since then, having finally merged into a state associa
tion. Membership may be either compulsory (integrated 
bar) or voluntary. 
Bar in tegration. See Integr ated bar. 
Barat. See Berat. 
Baratriam committit qui propter pecuniam justitiam 
baractat Ib;}reytriy;}m k;}mit;}t kway propt;}r p;}
k(y)uwniy;}m j;}stishiy;}m b;}rrekt;}t/. He is guilty of bar
ratry who for money sells justice. (This maxim, how
ever, is one pertaining more to the meaning of "barra
try" as used in Scotch law than to its common-law 
meaning.) See Barratry. 
Barbiturate Ibarbity;}r;}t/. A general term denoting a 
derivative of barbituric acid formed by the substitution 
BARGAIN AND SALE 
of an aliphatic or aromatic group on a carbon or nitro
gen atom in the acid; used in medicine as hypnotic and 
sedative drugs. 
Bareboat charter. A document under which one who 
charters or leases a boat becomes for the period of the 
charter the owner for all practical purposes. Reed v. 
The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448. 
Lease of vessel without a crew. Gillentine v. McKeand, 
C.A.Mass., 426 F.2d 717, 719. One whereby charterer 
assumes full possession and control of the vessel and 
constitutes the only form of charter that purports to 
invest temporary powers of ownership in the charterer. 
Baker v. Raymond Intern., Inc., C.A.La., 656 F.2d 173, 
182. 
Bare or mere licensee. One whose presence on premis
es is merely tolerated; while a "licensee" or "invitee" is 
one who is on the premises by invitation, express or 
implied. Chicago, R. I. & P. Ry. Co. v. McCleary, 175 
Okl. 347, 53 P.2d 555, 557. 
Bare patent license. A grant of authority to make, use 
or vend patented product throughout the United States 
or in a given part thereof, with no right of exclusion. 
Baret. L. Fr. A wrangling suit. 
Bare trustee. One whose trust is to convey, and the 
time has arrived for a conveyance by him. Trustee of a 
dry trust; or a trustee to whose office no duties were 
originally attached, or who, although such duties were 
originally attached to his office, would, on the requisi
tion of his cestuis que trust, be compellable in equity to 
convey the estate to them or by their direction. 
Bar fee. In old English law, a fee taken by the sheriff, 
time out of mind, for every prisoner who is acquitted. 
"Extortion." Abolished by St. 14 Geo. III, c. 26; 55 Geo. 
III, c. 50; 8 & 9 Vict., c. 114. 
Bargain. A mutual undertaking, contract, or agree
ment. A contract or agreement between two parties, 
the one to sell or exchange goods or lands, and the other 
to buy or exchange them. To negotiate over the terms 
of a purchase or contract. To come to terms. A bargain 
is an agreement to exchange promises or to exchange a 
promise for a performance or to exchange performances. 
Restatement, Second, Contracts, § 3. 
Bargain mone y. These words in a contract for the sale 
of land have much the same significance as earnest 
money. 
Catching bargain. A bargain by which money is loaned, 
at an extortionate or extravagant rate, to an heir or any 
one who has an estate in reversion or expectancy, to be 
repaid on the vesting of his interest; or a similar uncon
scionable bargain with such person for the purchase 
outright of his expectancy. That kind of fraud often 
perpetrated upon young, inexperienced, or ignorant peo
ple. See Unconscionable bargain. 
Bargain and sale. In conveyancing, the transferring of 
the property of a thing from one to another, upon 
valuable consideration, by way of sale. A contract or 
bargain by the owner of land, in consideration of money

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BARGAIN AND SALE 
or its equivalent paid, to sell land to another person, 
called the "bargainee," whereupon a use arises in favor 
of the latter, to whom the seisin is transferred by force 
of the statute of uses. The expression "bargain and 
sale" is also applied to transfers of personalty, in cases 
where there is first an executory agreement for the sale 
(the bargain), and then an actual and completed sale. 
Bargain and sale deed. A deed that has a recitation of 
consideration coupled with words of conveyance of real 
property. It is a form of deed of conveyance without 
any covenants; a bare conveyance to grantee of whatev
er interest grantor has at time of the conveyance. Bor
ough of Wildwood Crest v. Smith, 210 N.J.Super. 127, 
509 A.2d 252, 259. See also Deed. 
Bargainee. The grantee of an estate in a deed of a 
bargain and sale. The party to a bargain to whom the 
subject-matter of the bargain or thing bargained for is to 
go. 
Bargaining agent. Union recognized and certified as 
such by NLRB as the exclusive representative of em
ployees in a bargaining unit. 
Bargaining for plea. Commonly referred to as plea 
bargaining in which defendant seeks a lesser sentence in 
return for plea of guilty; or an attempt to plead guilty 
to lesser included offense which carries a less severe 
penalty. See Plea bargaining. 
Bargaining unit. Labor union or group of jobs autho
rized to carry on collective bargaining in behalf of em
ployees. A particular group of employees with a similar 
community of interest appropriate for bargaining. 
Bargain money. See Earnest money. 
Bargainor. The person who makes a bargain. The 
party to a bargain who is to receive the consideration 
and perform the contract by delivery of the subject 
matter. 
Bargain or contract in restraint of trade. Any bar
gain or contract which purports to limit in any way 
right of either party to work or to do business. 
Bargain sale or purchase. A sale of property for less 
than the fair market value of such property. The differ
ence between the sale or purchase price and the fair 
market value of the property is required to be accounted 
for in terms of its tax consequences. Bargain sales and 
purchases among members of the same family may lead 
to gift tax consequences. See Dividend (Constructive 
dividend). 
Bark. Term is sometimes figuratively used to denote the 
mere words or letter of an instrument, or outer covering 
of the ideas sought to be expressed, as distinguished 
from its inner substance or essential meaning. 
Barnard's inn. An inn of chancery. See In ns of Chan
cery. 
Baro Ibrerow/. In old law, a man, whether slave or free. 
In later usage, a freeman or freedman; a strong man; a 
good soldier; a hired soldier; a vassal; a baron; a feudal 
tenant or client. A man of dignity and rank; a knight. 
150 
A magnate in the church. A judge in the exchequer 
(baro scaccarii). The first-born child. A husband. 
Baron Ibrer:m/. A lord or nobleman; the most general 
title of nobility in England. 1 Bl.Comm. 398, 399. A 
particular degree or title of nobility, next to a viscount. 
The lowest title in Great Britain. A judge of the court 
of exchequer. 3 Bl.Comm. 44. A freeman. Also a 
vassal holding directly from the king. A husband; oc
curring in this sense in the phrase "baron et feme, " 
husband and wife. The term has essentially the same 
meanings as baro (q.v.). 
Baronage. In English law, the. collective body of the 
barons, or of the nobility at large. 
Baron court. See Court-baron. 
Barones scaccarii. See Barons of the exchequer. 
Baronet. An English name or hereditary title of dignity 
or rank (but not a title of nobility, being next below that 
of baron), established in 1611 by James I. It is created 
by letters patent, and descends to the male heir. 
Baron et feme Ibrer:m ey fem/. Man and woman; hus
band and wife. A wife being under the protection and 
influence of her baron, lord, or husband, is styled a 
"{eme-covert " (fremina viro cooperta), and her state of 
marriage is called her "coverture." 
Barons of the Exchequer. The six judges of the Court 
of Exchequer in England, of whom one is styled the 
"Chief Baron;" answering to the justices and chief jus
tice of other courts. Its jurisdiction was transferred to 
the Exchequer Division of High Court of Justice in 1873; 
the barons becoming justices of the High Court. 
Barony. The dignity of a baron; a species of tenure; the 
territory or lands held by a baron. 
Barony of land. In England, a quantity of land amount
ing to 15 acres. In Ireland, a subdivision of a county. 
Barra, or barre. In old practice, a plea in bar. The bar 
of the court. A barrister. 
Barrator Ibrer;}t;}r/. One who commits barratry. See 
Barretor. 
Barratrous Ibrer;}tr;}s/. Fraudulent; having the charac
ter of barratry. 
Barratry Ibrer;}triy/. Also spelled "Barretry." The of
fense of frequently exciting and stirring up quarrels and 
suits, either at law or otherwise. State v. Batson, 220 
N.C. 411, 17 S.E.2d 511, 512, 513. 
In maritime law, an act committed by master or 
mariners of a vessel for some fraudulent or unlawful 
purpose contrary to their duty to owner and resulting in 
injury to owner. Isbell Enterprises, Inc. v. Citizens Cas. 
Co. of New York, D.C.Tex., 303 F.Supp. 549, 552. 
See also Barretor; Cham perty. 
Barred. Obstructed by a bar. Subject to hindrance or 
obstruction by a bar or barrier which, if interposed, will 
prevent legal redress or recovery; as, when it is said 
that a claim or cause of action is "barred by the statute 
of limitations."

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151 
Barrel. A measure of capacity, equal (in England) to 36 
imperial gallons. The standard United States measure, 
except as to barrels of petroleum, equals 31iJ2 gallons. 
In agricultural and mercantile parlance, as also in the 
inspection laws, the term means, prima facie, not merely 
a certain quantity, but, further, a certain state of the 
article; namely, that it is in a cask. 
Barren money. In the civil law, a debt which bears no 
interest. 
Barrenness. Sterility; the incapacity to bear children. 
Barretor Ibrer;}t;}r/. A common mover, exciter, or main
tainer of suits and quarrels either in courts or elsewhere 
in the country; a disturber of the peace who spreads 
false rumors and calumnies, whereby discord and dis
quiet may grow among neighbors. 
One who frequently excites and stirs up groundless 
suits and quarrels, either at law or otherwise. State v. 
Batson, 220 N.C. 411, 17 S.E.2d 511, 512, 513. 
Barrister. In England, an advocate; a counsellor 
learned in the law who has been admitted to plead at 
the bar, and who is engaged in conducting the trial or 
argument of causes. A person called to the bar by the 
benchers of Inns of Court, giving exclusive right of 
audience in the Supreme Court. 
Barter. The exchange of goods and productive services 
for other goods and productive services, without the use 
of money. Rosenberg v. State, 12 Md.App. 20, 276 A.2d 
708, 711. See also Exchange. 
Bas. Fr. Low; inferior; subordinate. 
Bas chevaliers Ibeys shev;}lirz/ba sh;}valyey I. In old 
English law, low, or inferior knights, by tenure of a base 
military fee, as distinguished from barons and bannerets, 
who were the chief or superior knights. 
Base, adj. Low in place or position; inferior; servile; of 
subordinate degree; impure, adulterated, or alloyed. 
Base animal . See Animal. 
Base bullion. Base silver bullion is silver in bars mixed 
to a greater or less extent with alloys or base materials. 
Base coin. Debased, adulterated, or alloyed coin (e.g. 
copper, nickel) as distinguished from silver or gold. 
Base court. In old English law, an inferior court, that is, 
not of record, as the court baron. 
Base estate. The estate which "base tenants" (q.v.) have 
in their land. 
Base fee. One that may last forever if the contingency 
does not happen, but debased because its duration de
pends upon collateral circumstances which qualify it; 
sometimes called a conditional, determinable, or quali
fied fee. 
In old English law, an estate or fee which has a 
qualification subjoined thereto, and which must be de
termined whenever the qualification annexed to it is at 
an end. Scobey v. Beckman, 111 Ind.App. 574, 41 
N.E.2d 847, 850. 
BASIS 
Base services. In feudal law, such services as were 
unworthy to be performed by the nobler men, and were 
performed by the peasants and those of servile rank. 2 
Bl.Comm. 62. 
Base tenants. Tenants who performed to their lords 
services in villenage; tenants who held at the will of the 
lord, as distinguished from frank tenants, or freeholders. 
Base tenure. A tenure by villenage, or other customary 
service, as distinguished from tenure by military service; 
or from tenure by free service. 
Base, n. Bottom, foundation, groundwork, that on which 
a thing rests. The locality on which a military or naval 
force relies for supplies or from which it initiates opera
tions; e.g. air base; military base; marine base; naval 
base; submarine base. 
Base line. Survey line used in the government survey to 
establish township lines. Horizontal elevation line used 
as centerline in a highway survey. 
Base pay. Wages, exclusive of overtime, bonuses, etc. 
Basic crops. Crops usually subject to government price 
supports, such as wheat, corn, oats, rice, and similar 
crops. 
Basic or pioneer patent. One discovered in new field 
and recognized by scientific world or industry as star
tling, unexpected, and unprophesied. Northwest Engi
neering Corporation v. Keystone Driller Co., C.C.A.Wis., 
70 F.2d 13, 16. 
Basileus Ibres;}lyuws/. A Greek word, meaning "king." 
A title assumed by the emperors of the Eastern Roman 
Empire. It is used by Justinian in some of the Novels; 
and is said to have been applied to the English kings 
before the Conquest. 1 Bl.Comm. 242. 
Basilica Ib;}sil;}k;}I . The name given to a compilation of 
Roman and Greek law, prepared about A.D. 880 by the 
Emperor Basilius, and published by his successor, Leo 
the Philosopher. It was written in Greek, was mainly 
an abridgment of Justinian's Corpus Juris, and com
prised sixty books, only a portion of which are extant. 
It remained the law of the Eastern Empire until the fall 
of Constantinople, in 1453. 
Basils. In old English law, a kind of money or coin 
abolished by Henry II. 
Basin. When speaking of a large river, ordinarily means 
or includes the entire area drained by the main stream 
and its tributaries. City of Tulsa v. Peacock, 181 Okl. 
383, 74 P.2d 359, 360. 
In admiralty law and marine insurance, a part of the 
sea inclosed in rocks. 
Basis. Fundamental principle; groundwork; support; 
the foundation or groundwork of anything; that upon 
which anything may rest or the principal component 
parts of a thing. 
Accountin g. Term used in accounting, especially in tax 
accounting, to describe the value assigned to an asset for 
the purpose of determining gain (or loss) on the sale or

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transfer or in determining value in the hands of a 
donee. 
Acquisition cost, or some substitute therefor, of an 
asset used in computing gain or loss on disposition or 
retirement. The amount assigned to an asset for in
come tax purposes. For assets acquired by purchase, 
the basis would be cost [I.RC. § 1012]. Special rules 
govern the basis of property received by virtue of anoth
er's death [I.RC. § 1014] or by gift [§ 1015], the basis of 
stock received on a transfer of property to a controlled 
corporation [§ 358], the basis of the property transferred 
to the corporation [§ 362], and the basis of property 
received upon the liquidation of a corporation [§§ 334 
and 338]. 
Adjusted basis. The cost of property acquired, in
creased for any capital improvements and decreased by 
the amount of depreciation allowed or allowable. 
I.RC. § lOll. 
Carryover basis. The basis of property acquired from a 
decedent dying after December 1979 is the basis of the 
property in the hands of the decedent immediately 
preceding death. The basis is further adjusted for 
transfers of appreciated property, personal items, and 
exceptions for small estates. I.RC. § 1023. 
Stepped-up basis. In tax accounting, value placed on 
property which is acquired in a taxable transaction or 
purchase. I.RC. § 1012. 
The basis of property acquired through inheritance, 
bequest, or devise from a decedent, is the fair market 
value of the property on the date of death or the fair 
market value on the alternate valuation date-six 
months from the date of death. The value is often 
higher than in the hands of the decedent, resulting in a 
stepped-up basis. I.R.C. § 1014. 
The basis of assets acquired by gift is the donors basis 
increased either by the amount of the gift tax paid (for 
gifts received before 1977) or the portion of the gift tax 
paid which is due to the increase in the value of the gift 
(for gifts received after 1976). I.Re. § 1015. 
Substituted basis. In tax accounting, the basis of prop
erty acquired in an exchange in which a gain or loss is 
not recognized, is the basis of the property transferred, 
except where the property acquired is subject to a lien. 
I.RC. § 1031. 
See also Accrual basis. 
Basis of bargain. That on which any affirmation of fact 
or promise relating to goods sold is predicated, creating 
an express warranty. V.C.C. § 2-313(1)(a). See Essence 
of the contract. 
Bastard. An illegitimate child; a child born before the 
lawful marriage of its parents; i.e. born out of lawful 
wedlock. See also Il le giti mate child. 
Bastard eigne. In old English law, bastard elder. If a 
child was born of an illicit connection, and afterwards 
the parents intermarried and had another son, the elder 
was called bastard eigne, or, as it is now spelled, aine, 
and the second son was called puisne, or since born, or 
152 
sometimes he was called mulier puisne. 2 Bl.Comm. 
248. 
Bastardize. To declare one a bastard, as a court does. 
To give evidence to prove one a bastard. A mother 
(married) cannot bastardize her child. 
Bastardus non potest habere hreredem nisi de cor
pore suo legitime procreatum Ibresblrd;)s non powt;)st 
h;)biriy h;)riydiy nitysay diy korp;)riy s(y)uwow l;)jit;)miy 
prowkriyeyt;)m/. A bastard can have no heir unless it 
be one lawfully begotten of his own body. 
Bastardus nullius est filius, aut filius populi 
Ibrestitrd;)s n;)lity;)s est filiy;)s ot filiy;)s popy;)lay I. A 
bastard is nobody's son, or the son of the people. 
Bastardy (paternity) proceedings. Court proceeding in 
which the paternity of a child is determined. The 
method provided by statute of proceeding against the 
putative father to secure a proper maintenance of his 
child born out of wedlock. See Paternity suit. 
Bastille Ibrestiyl/. A prison, citadel, fortress. Prison 
constructed in Paris in 1369 and destroyed in 1789. 
Baston Ibrest;)n/b;)ton/. In old English law, a baton, 
club, or staff. A term applied to officers of the wardens 
of the prison called the "Fleet," because of the staff 
carried by them. See Trail-baston. 
Batable-ground. Land that is in controversy, or about 
the possession of which there is a dispute, as the lands 
which were situated between England and Scotland be
fore the V nion. 
Bataille Ibretity/. In old English law, battel; the trial by 
combat or duellum. 
Batiment Ibret;)mon/. In French marine law, a vessel or 
ship. 
Batonnier Ibretonyey I. The chief of the French bar in 
its various centres, who presides in the council of disci
pline. 
Battel Ibret;)l/. Trial by combat; wager of battel. See 
Wager of battel. 
Battered child. A child who is suffering serious physi
calor emotional injury resulting from abuse inflicted 
upon him including sexual abuse, or from neglect, in
cluding malnutrition, or who is determined to be physi
cally dependent upon an addictive drug at birth. See 
also Child abuse. 
Battered Child Syndrome. A medicolegal term which 
describes diagnosis of medical expert based on scientific 
studies that when child suffers certain types of continu
ing injuries that injuries were not caused by accidental 
means. Vpon such finding, it is logical to presume that 
someone "caring" for the child was responsible for inju
ries. State v. Byrd, 309 N.e. 132, 305 S.E.2d 724, 729. 
Battery. Intentional and wrongful physical contact with 
a person without his or her consent that entails some 
injury or offensive touching. Mason v. Cohn, 108 
Misc.2d 674, 438 N.Y.S.2d 462, 464. Criminal battery, 
defined as the unlawful application of force to the per
son of another, may be divided into its three b�ic

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153 
elements: (1) the defendant's conduct (act or omission); 
(2) his "mental state," which may be an intent to kill or 
injure, or criminal negligence, or perhaps the doing of 
an unlawful act; and (3) the harmful result to the 
victim, which may be either a bodily injury or an offen
sive touching. What might otherwise be a battery may 
be justified; and the consent of the victim may under 
some circumstances constitute a defense. Com. v. Hill, 
237 Pa.Super. 543, 353 A.2d 870. The consummation of 
an unlawful assault. 
The actual offer to use force to the injury of another 
person is assault; the use of it is battery, which always 
includes an assault; hence the two terms are commonly 
combined in the term "assault and battery." 
An actor is subject to liability to another for battery 
if: (a) he acts intending to cause a harmful or offensive 
contact with the person of the other or a third person, or 
an imminent apprehension of such a contact, and (b) an 
offensive contact with the person of the other directly or 
indirectly results. Restatement, Second, Torts § 18. 
See also Assault and battery. 
Aggravated battery. An unlawful act of violent injury to 
the person of another, accompanied by circumstances of 
aggravation, such as the use of deadly weapon, great 
disparity between the ages and physical conditions of 
the parties, or the purposeful infliction of shame and 
disgrace. 
Simple battery. One not accompanied by circumstances 
of aggravation, or not resulting in grievous bodily inju
ry. 
Technical battery. A technical battery occurs when a 
physician or dentist, in the course of treatment, exceeds 
the consent given by a patient. Although no wrongful 
intent is present, and in fact there may be a sincere 
purpose to aid the patient, recovery is permitted unless 
there is an emergency. However, if the patient benefits 
from the battery only nominal damages may be recov
ered. 
Battle of the forms. In commercial law, term used to 
describe effect of multitude of forms used by buyers and 
sellers to accept and to confirm terms expressed in other 
forms. V.C.C. § 2-207. 
Batture Ib�tyur I. A marine term, used to denote a 
bottom of sand, stone, or rock, mixed together, and 
rising towards the surface of the water; as a technical 
word and also in common parlance, an elevation of the 
bed of a river, under the surface of the water. The term 
is, however, sometimes used to denote the same eleva
tion of the bank, when it has risen above the surface of 
the water, or is as high as the land on the outside of the 
bank. Conkey v. Knudsen, 143 Neb. 5, 8 N.W.2d 538, 
541. In this latter sense it is synonymous with "allu
vion." It means, in common-law language, land formed 
by accretion. The term is used in Louisiana, and is 
applied principally to certain portions of the bed of the 
Mississippi river which are uncovered at time of low 
water but are covered annually at time of ordinary high 
water. 
BEACH 
Bawd IOOd!. One who procures opportunities for per
sons of opposite sexes to cohabit in an illicit manner; 
who may be, while exercising the trade of a bawd, 
perfectly innocent of committing in his or her own 
proper person the crime either of adultery or of fornica
tion. A madam. 
Bawdy-house. A house of ill fame; a house of prostitu
tion; a brothel. A house or dwelling maintained for the 
convenience and resort of persons desiring unlawful 
sexual connection. A place for convenience of people of 
both sexes in resorting to lewdness, a place many may 
frequent for immoral purposes or a house where one 
may go for immoral purposes without invitation. Riley 
v. V. S., D.C.App., 298 A.2d 228, 231 . 
Bay. A pond-head made of a great height to keep in 
water for the supply of a mill, etc., so that the wheel of 
the mill may be turned by the water rushing thence, 
through a passage or flood-gate. (This is generally 
called a forebay.) 
A bending or curving of the shore of the sea or of a 
lake, so as to form a more or less inclosed body of water. 
An opening into the land, or an arm of the sea, where 
the water is shut in on all sides except at the entrance. 
Baygall. A low-lying wet land matter with vegetable 
fibres and often with gallberry and other thick-growing 
bushes. 
Bayley Ibeyliy/. In old English law, bailiff. This term 
was used in the laws of the colony of New Plymouth, 
Mass., A.D. 1670, 1671. 
Bayou Ibayuw Ibayow I. A species of creek or stream 
common in Louisiana and Texas. An outlet from a 
swamp, pond, or lagoon, to a river, or the sea. 
B.C. An abbreviation for "before Christ," "bail court," 
"bankruptcy cases," and "British Columbia." 
B.E. An abbreviation for "Baron of the Court of Excheq
uer." 
Beach. This term, in its ordinary signification, when 
applied to a place on tide waters means the space 
between ordinary high and low water mark; or the 
space over which the tide usually ebbs and flows. It is a 
term not more significant of a sea margin than "shore." 
In common parlance designates that portion of shore 
consisting generally of sand and pebbles, resulting 
usually from the action of water, as distinct from the 
upland, to which it often extends above normal high-wa
ter mark. Beach is synonymous with "shore," "strand," 
or "flats." The term may also include the sandy shore 
above mean high water which is washed by storms and 
exceptionally high tides. 
To "beach" a ship is to run it upon the beach or shore; 
this is frequently found necessary in case of a fire, leak, 
etc. 
See Foreshore; Seashore. 
Public beach. Beach dedicated by governmental body to 
the common use of the public, which the unorganized 
public and each of its members have a right to use while 
it remains such.

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BEACON 
Beacon. A light-house, or sea-mark, formerly used to 
alarm the country, in case of the approach of an enemy, 
but now used for the guidance of ships at sea, by night, 
as well as by day. 
Beaconage. Money paid for the maintenance of a bea
con or signal-light. 
Beadle. In English ecclesiastical law, an inferior parish 
officer, who is chosen by the vestry, and whose business 
is to attend the vestry, to give notice of its meetings, to 
execute its orders, to attend upon inquests, and to assist 
the constables. See Bedel. 
Beams and balance. Instruments for weighing goods 
and merchandise. 
Bear. To support, sustain, or carry. To give rise to, or 
to produce, something else as an incident or auxiliary. 
To render, to manage, or direct, or to conduct; to carry 
on, or maintain. To produce as yield; e.g. "bear" inter
est. One who believes stock prices will decline; opposite 
of a "bull." 
Bear arms. The Second Amendment, U.S. Constitution, 
provides that the "right of the people to bear arms, shall 
not be infringed." This right has been restricted how
ever by state and federal laws regulating the transporta
tion, sale, use, and possession of weapons. 
Bearer. The person in possession of an instrument, 
document of title, or security payable to bearer or in
dorsed in blank. U.C.C. § 1-201(5). When a check, 
note, draft, etc., is payable to "bearer," it imports that 
such shall be payable to any person who may present 
the instrument for payment. See also Payable to bearer. 
Bearer bond. Bonds payable to the person having pos
session of them. Such bonds do not require endorse
ment to transfer ownership but only the transfer of 
possession. 
Bearer document. A document that runs to bearer 
upon issuance or after a blank indorsement, and that is 
negotiated by delivery alone. U.C.C. §§ 7- 501(1) & 
(2)(a). Anyone in possession of a bearer document is a 
holder of it. U.C.C. § 1-201(20). 
Bearer instrument. An instrument is payable to bearer 
when by its terms it is payable to (a) bearer or the order 
of bearer; or (b) a specified person or bearer; or (c) 
"cash" or the order of "cash", or any other indication 
which does not purport to designate a specific payee. 
U.C.C. §§ 3-1 11, 3-204( 2). 
Bearer paper. Commercial paper payable to bearer; i.e. 
to the person having possession of such. See Bearer 
document; Bearer instrument. 
Bearer security. A security whose owner is not reg
istered on the books of the issuer. Such security is 
payable to the holder. See e.g., Bearer bond. 
Bearing date. Disclosing a date on its face; having a 
certain date. Words frequently used in pleading and 
conveyancing to introduce the date which has been put 
upon an instrument. 
154 
Bear interest. To yield, generate, or produce interest on 
the principal. 
Bear market. A market in which prices are falling or 
are expected to fall. 
Beat, v. To strike or hit repeatedly, as with blows. In 
the criminal law and the law of torts, with reference to 
assault and battery, the term includes any unlawful 
physical violence offered to another. See Battery. 
Beat, n. In some of the southern states (as Alabama, 
Mississippi, South Carolina) the principal legal subdivi
sion of a county, corresponding to towns or townships in 
other states; or a voting precinct. 
Beating. The infliction of extreme force to another. See 
Battery; Corporal punishment. 
Beating of the bounds. An ancient custom in England 
by which, once a year, the minister, etc., of a parish 
walked about its boundaries to preserve a recollection of 
them. 
Beaupleader /bowpliyd�r/. (L. Fr. fair pleading). A 
writ of prohibition directed to the sheriff or another, 
directing him not to take a fine for beaupleader. There 
was anciently a fine imposed called a fine for beauplead
er, which is explained by Coke to have been originally 
imposed for bad pleading. 
Bed. The hollow or channel of a water course; the 
depression between the banks worn by the regular and 
usual flow of the water. The land that is covered by the 
water in its ordinary low stage. Area extending be
tween the opposing banks measured from the foot of the 
banks from the top of the water at its ordinary stage, 
including sand bars which may exist between the foot of 
said banks as thus defined. Town of Refugio v. Heard, 
Tex.Civ.App., 95 S.W.2d 1008, 1010. It includes the 
lands below ordinary high water mark. United States v. 
Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 313 U.S. 
543, 61 S.Ct. 772, 775, 85 L.Ed. 1064. 
Also, the right of cohabitation or marital intercourse; 
as in the phrase "divorce from bed and board," or a 
mensa et thoro. 
Bed and board. Divorce a mensa et thoro. See Divorce. 
Bedel /biyd�lI. In English law, a crier or messenger of 
court, who summons men to appear and answer therein. 
A herald to make public proclamations. An inferior 
officer of a parish or liberty, to give notice of vestry 
meetings, etc. 
An officer of the forest, similar to a sheriffs special 
bailiff. A collector of rents for the king. 
Bedelary /biyd�lE�riy / . The jurisdiction of a bedel, as a 
bailiwick is the jurisdiction of a bailiff. 
Bederepe Ibiydriyp/. A service which certain tenants 
were anciently bound to perform, as to reap their land
lord's corn at harvest. 
Before. Prior to; preceding; in front of; at the disposal 
of; in a higher position. In the presence of; under the 
official purview of; as in a magistrate's jurat, "before me 
personally appeared," etc.

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155 
When used as a preposition, does not indicate a period 
of time as do the prepositions "for," "during," and 
"throughout," but merely an event or act preceding in 
time, or earlier than, or previously to, the time men
tioned. First Nat. Corp. v. Perrine, 99 Mont. 454, 43 
P.2d 1073, 1077. 
Beg. To solicit alms or charitable aid. 
Beget. To procreate as the father. 
Beggar. One who lives by begging charity, or who has 
no other means of support than solicited alms. 
Begin. To originate; to come into existence; to start; to 
institute; to initiate; to commence. People ex reL 
Northchester Corporation v. Miller, 263 App.Div. 83, 31 
N.Y.S.2d 586, 587. 
Behalf. Benefit, support, defence, or advantage. 
Behavior. Manner of having, holding, or keeping one's 
self; manner of behaving, whether good or bad; conduct; 
manners; carriage of one's self, with respect to proprie
ty and morals; deportment. Schneiderman v. United 
States, 320 U.S. 118, 63 S.Ct. 1333, 1340, 87 L.Ed. 1796. 
See also Character; Reputation. 
Behetria Ibeyeytriy;)/. In Spanish law, lands situated in 
districts and manors in which the inhabitants had the 
right to select their own lords. 
Behoof. Use; benefit; profit; service; advantage. It 
occurs in conveyances, e.g., "to his and their use and 
behoof. " 
Being struck. Collision, or striking together of two 
objects, one of which may be stationary. Condition of a 
person who has been traumatized. Business closed or 
affected by labor strike. See also Strike. 
Belief. A conviction of the truth of a proposition, exist
ing subjectively in the mind, and induced by argument, 
persuasion, or proof addressed to the judgment. Latrobe 
v. J. H. Cross Co., D.C.Pa., 29 F.2d 210, 212. A conclu
sion arrived at from external sources after weighing 
probability. Conviction of the mind, arising not from 
actual perception or knowledge, but by way of inference, 
or from evidence received or information derived from 
others. 
Knowledge is an assurance of a fact or proposition 
founded on perception by the senses, or intuition; while 
"belief' is an assurance gained by evidence, and from 
other persons. "Suspicion" is weaker than "belief," 
since suspicion requires no real foundation for its exist
ence, while "belief' is necessarily based on at least 
assumed facts. Cook v. Singer Sewing Mach. Co., 138 
Cal.App. 418, 32 P.2d 430, 431. 
Belief-action distinction. The distinction noted in 
analysis of cases under First Amendment, U.S. Constitu
tion-freedom of speech and religion-to the effect that 
one is guaranteed the right to any belief he chooses, but 
when that belief is translated into action, the state also 
has rights under its police power to protect others from 
such actions. Reynolds v. U. S., 98 U.S. 145, 164. 
BENCH 
Belligerency Ib;)lij;)r;)nsiy/. In international law, the 
status of de facto statehood attributed to a body of 
insurgents, by which their hostilities are legalized. The 
international status assumed by a state (i.e. nation) 
which wages war against another state. Quality of 
being belligerent; status of a belligerent; act or state of 
waging war; warfare. 
Belligerent Ib;)lij;)r;)ntl. In international law, as an 
adjective, it means engaged in lawful war. As a noun, it 
designates either of two nations which are actually in a 
state of war with each other, as well as their allies 
actively co-operating, as distinguished from a nation 
which takes no part in the war and maintains a strict 
indifference as between the contending parties, called a 
"neutral." 
As a personality trait, refers to one who is overly 
assertive, hostile or combative. 
Belligerents. A body of insurgents who by reason of 
their temporary organized government are regarded as 
conducting lawful hostilities. Also, militia, corps of 
volunteers, and others, who although not part of the 
regular army of the state, are regarded as lawful com
batants provided they observe the laws of war. See also 
Bell igerency; Bellig erent. 
Bellum Ibel;)m/. Lat. In public law, war. An armed 
contest between nations; the state of those who forcibly 
contend with each other. Jus belli, the law of war. 
Belong. To appertain to; to be the property of; to be a 
member of; to be appropriate; to own. 
Belonging. That which is connected with a principal or 
greater thing; an appendage, an appurtenance; also, 
ownership. Church of the Holy Faith v. State Tax 
Commission, 39 N.M. 403, 48 P.2d 777, 779. 
Belongings. That which belongs to one; property; pos
sessions; a term properly used to express ownership. 
Ford's Adm'r v. Wade's Adm'r, 242 Ky. 18, 45 S.W.2d 
818, 820. See Personal effects. 
Below. Inferior; of inferior jurisdiction, or jurisdiction 
in the first instance. The court from which a cause is 
removed for review is called the "court below." Prelimi
nary; auxiliary or instrumental. 
Bail to the sheriff has been called "bail below," as 
being preliminary to and intended to secure the putting 
in of bail above, or special baiL See Bail. 
Below par. See Par value. 
Ben Avon doctrine. Due process requires opportunity 
for judicial determination of reasonableness of rates for 
public utilities set by a Public Service Commission. 
Ohio Valley Water Co. v. Ben Avon Borough et aL, 253 
U.S. 287, 40 S.Ct. 527, 64 L.Ed. 405. 
Bench. A seat of judgment or tribunal for the adminis
tration of justice. The seat occupied by judges in courts. 
Also, the court itself, or the aggregate of the judges 
composing a court, as in the phrase "before the full 
bench." Compare Bar. 
The judges taken collectively, as distinguished from 
counsellors and advocates, who are called the bar.

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BENCH 
The term, indicating originally the seat of the judges, 
came to denote the body of judges taken collectively, and 
also the tribunal itself, as the King's Bench. 
Bench and bar. Term refers to judges collectively and 
attorneys as a whole. 
Bench blotter. Record of arrests and other happenings 
kept by police. See also Arrest record; Booking. 
Bench conference. A meeting at the judge's bench 
prior to, during or after a trial or hearing between 
counsel and the judge to discuss a matter pertaining to 
such. proceeding. Commonly called to discuss questions 
of evidence out of hearing of jury; it may or may not be 
made part of the written record of the proceeding. 
Benchers. In England, principal officers of each inn of 
court, in whom the government of such is vested. See 
In ns of Court. 
Bench legislation. See Judge-made law. 
Bench mark. A mark on a fixed and enduring object, 
indicating a particular elevation and used as a reference 
in topographical surveys and tidal observations. Ace 
Const. Co. v. U. S., 185 Ct.Cl. 487, 401 F.2d 816, 820. 
Standard unit for basis of comparison. 
Bench trial. Trial held before judge sitting without a 
jury; jury waived trial. 
Bench warrant. Process issued by the court itself, or 
"from the bench," for the attachment or arrest of a 
person; either in case of contempt, or where an indict
ment has been found, or to bring in a witness who fails 
to obey a subpoena. 
Bene Ibiyniy I. Lat. Well; in proper form; legally; 
sufficiently. 
Benedicta est expositio quando . res redimitur a de
structione Iben;)dikt;) est eksp;)zish(iy)ow kwondow riyz 
r;)dim;)t;)r ey d;)stdkshiyowniy I. Blessed is the exposi
tion when anything is saved from destruction. It is a 
laudable interpretation which gives effect to the instru
ment, and does not allow its purpose to be frustrated. 
Benefice lben;)f;)s/. In ecclesiastical law, in its technical 
sense, this term includes ecclesiastical preferments to 
which rank or public office is attached, otherwise de
scribed as ecclesiastical dignities or offices, such as bish
oprics, deaneries, and the like; but in popular accepta
tion, it is almost invariably appropriated to rectories, 
vicarages, perpetual curacies, district churches, and en
dowed chapelries. A term derived from the feudal law, 
in which it signified a permanent stipendiary estate, or 
an estate held by feudal tenure. 4 Bl.Comm. 107. See 
English Patronage (Benefices) Measure Act, 1986. The 
modern term designates an office with care for souls but 
not an office as vicar or in a church. 
Benefice Ibeyneyfiys/. Fr. In French law, a benefit or 
advantage, and particularly a privilege given by the law 
rather than by the agreement of the parties. 
Benefice de discussion. Benefit of discussion. The 
right of a guarantor to require that the creditor should 
156 
exhaust his recourse against the principal debtor before 
having recourse to the guarantor himself. 
Benefice de division. Benefit of division; right of con
tribution as between co-sureties. 
Benefice d'inventaire. A term which corresponds to 
the beneficium inventarii of Roman law, and substan
tially to the English law doctrine that the executor 
properly accounting is only liable to the extent of the 
assets received by him. 
Beneficiaire Ibeyneyfiysyer/. The person in whose fa
vor a promissory note or bill of exchange is payable; or 
any person in whose favor a contract of any description 
is executed. 
Beneficial. Tending to the benefit of a person; yielding 
a profit, advantage, or benefit; enjoying or entitled to a 
benefit or profit. This term is applied both to estates (as 
a "beneficial interest") and to persons (as "the beneficial 
owner"). 
Beneficial enjoyment. The enjoyment which a man has 
of an estate in his own right and for his own benefit, and 
not as trustee for another. 
Beneficial estate. An estate in expectancy is one where 
the right to the possession is postponed to a future 
period, and is "beneficial" where the devisee takes solely 
for his own use or benefit, and not as the mere holder of 
the title for the use of another. 
Beneficial holders of securities. In securities law, 
persons who have the equitable or legal title to shares 
but who have not registered the shares in their names 
on the records of the corporation. 
Beneficial interest. Profit, benefit, or advantage result
ing from a contract, or the ownership of an estate as 
distinct from the legal ownership or control. When 
considered as designation of character of an estate, is 
such an interest as a devisee, legatee, or donee takes 
solely for his own use or benefit, and not as holder of 
title for use and benefit of another. 
In trust law, refers to interest of the beneficiary in 
right to income or principle of trust funds, in contrast to 
trustee who holds legal title. 
Beneficial owner. Term applied most commonly to 
cestui que trust who enjoys ownership of the trust or 
estate in equity, but not legal title which remains in 
trustee or personal representative. Equitable as con
trasted with legal owner. 
One who does not have title to property but has rights 
in the property which are the normal incident of owning 
the property. The persons for whom a trustee holds 
title to property are the beneficial owners of the proper
ty, and the trustee has a fiduciary responsibility to 
them. 
Beneficial power. A power which has for its object the 
donee of the power, and which is to be executed solely 
for his benefit; as distinguished from a trust power, 
which has for its object a person other than the donee, 
and is to be executed solely for the benefit of such 
person.

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157 
Beneficial use. The right to use and enjoy property 
according to one's own liking or so as to derive a profit 
or benefit from it, including all that makes it desirable 
or habitable, as light, air, and access; as distinguished 
from a mere right of occupancy or possession. Such 
right to enjoyment of property where legal title is in one 
person while right to such use or interest is in another. 
Christiansen v. Department of Social Security, 15 
Wash.2d 465, 131 P.2d 189, 191. 
Beneficiary Ibim;)fish(iy);)ry/. One who benefits from 
act of another. A party who will benefit from a transfer 
of property or other arrangement. Examples include 
the beneficiary of a trust, the beneficiary of a life 
insurance policy, and the beneficiary of an estate. See 
also Creditor beneficiar y; Primary beneficiary; Third party 
be neficiary . 
Credit. A "beneficiary" of a credit is a person who is 
entitled under its terms to draw or demand payment. 
U.C.C. § 5-103(d). See also Creditor beneficiary. 
Incidental. A person who may derive benefit from 
performance on contract, though he is neither the prom
isee nor the one to whom performance is to be rendered. 
Salzman v. Holiday Inns, Inc., 48 A.D.2d 258, 369 N.Y. 
S.2d 238, 242. See also Inc idental beneficiary. 
Insurance. The person entitled to take proceeds on 
death of insured. 
Letter of credit. In a letter of credit transaction, the 
"person who is entitled under its terms [Le., the terms of 
the credit] to draw or demand payment." U.C.C. 
§ 5-103(1)(d). 
Taxation. One who is assessed as the real owner. See 
also Income beneficiary. 
Trust. As it relates to trust beneficiaries, includes a 
person who has any present or future interest, vested or 
contingent, and also includes the owner of an interest by 
assignment or other transfer and as it relates to a 
charitable trust, includes any person entitled to enforce 
the trust. Uniform Probate Code, § 1-201. A person 
named in a trust account as one for whom a party to the 
account is named as trustee. Uniform Probate Code, 
§ 6- 101. Person for whose benefit property is held in 
trust. Restatement, Second, Trusts § 3. 
Will. Person named in will to receive specified proper
ty. 
Beneficiary association. See Benevolent associations. 
Beneficiary heir. In the law of Louisiana, one who has 
accepted the succession under the benefit of an invento
ry regularly made. Civ.Code La. art. 883. Also, one 
who may accept the succession with benefit of inventory. 
Beneficio prima, or primo [ecclesiastico habendo] 
Iben;)fish(iy)ow praymow (;)kliyziyrest;)kow h;)ben
dow)/. In English law, an ancient writ, which was 
addressed by the king to the lord chancellor, to bestow 
the benefice that should first fall in the royal gift, above 
or under a specified value, upon a person named there
in. 
BENEFICIUM 
Beneficium Iben;)fish(iy);)m/. In feudal law, a benefice; 
a permanent stipendiary estate; the same with what 
was afterwards called a "fief," "feud," or "fee." It 
originally meant a "benefaction" from the king, usually 
to a noble. 
In the civil law, a benefit or favor; any particular 
privilege. A general term applied to ecclesiastical liv
ings. 4 Bl.Comm. 107. 
Beneficium abstinendi Iben;)fish(iy);)m rebst;)nenday I. 
In Roman law, the power of an heir to abstain from 
accepting the inheritance. 
Beneficium cedendarum actionum Iben;)fish(iy);)m 
s;)dender;)m rekshiyown;)m/. In Roman law, the privi
lege by which a surety could, before paying the creditor, 
compel him to make over to him the actions which 
belonged to the stipulator, so as to avail himself of them. 
Beneficium clericale Iben;)fish(iy);)m klt�r;)keyliy I. Bene
fit of clergy (q.v.). 
Beneficium competentire Iben;)fish(iy);)m komp;)tenshi
yiy/. In Scotch law, the privilege of competency. A 
privilege which the grantor of a gratuitous obligation 
was entitled to, by which he might retain sufficient for 
his subsistence, if, before fulfilling the obligation, he was 
reduced to indigence. In the civil law, the right which 
an insolvent debtor had, among the Romans, on making 
cession of his property for the benefit of his creditors, to 
retain what was required for him to live honestly ac
cording to his condition. 
A defendant's privilege of being condemned only in an 
amount which he could pay without being reduced to a 
state of destitution. 
Beneficium divisionis Iben;)fish(iy);)m d;)viz
(h)iyown;)s/. In civil and Scotch law, the privilege of 
one of several co-sureties (cautioners) to insist upon 
paying only his pro rata share of the debt. La.Civ.Code, 
arts. 3045-305 1. 
Beneficium inventarili Iben;)fish(iy);)m inventeriyay I. 
See Benefit of inventory. 
Beneficium ordinis Iben;)fish(iy);)m ord;)n;)s/. In civil 
and Scotch law, the privilege of order. The privilege of 
a surety to require that the creditor should first proceed 
against the principal and exhaust his remedy against 
him, before resorting to the surety. 
Beneficium separationis Iben;)fish(iy);)m sep;)rey
shiyown;)s/. In the civil law, the right to have the goods 
of an heir separated from those of the testator in favor 
of creditors. 
Beneficium invito non datur Iben;)fish(iy);)m invaytow 
non deyt;)r/. A privilege or benefit is not granted 
against one's will. 
Beneficium non datum nisi propter officium Iben
;)fish(iy);)m non deyt;)m naysay propt;)r ;)fishiy;)m/. A 
remuneration [is] not given, unless on account of a duty 
performed. 
Beneficium non datur DlSI officii causa 
Iben;)fish(iy);)m non deyt;)r naysay ;)fishiyay koz;) I . A

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BENEFIT 
benefice is not granted except on account or in consider
ation of duty. 
Beneficium principis debet esse mansurum /ben
;)fish(iy);)m prins;)p;)s deb;)t esiy mrens(y)ur;)m/. The be
nefaction of a prince ought to be lasting. 
Benefit. Advantage; profit; fruit; privilege; gain; in
terest. The receiving as the exchange for promise some 
performance or forbearance which promisor was not 
previously entitled to receive. Graphic Arts Finishers, 
Inc. v. Boston Redevelopment Authority, 357 Mass. 40, 
255 N.E.2d 793, 795. Benefits are something to advan
tage of, or profit to, recipient. Cheltenham Tp. v. Chel
tenham Tp. Police Dept., 11 Pa.Cmwlth. 348, 312 A.2d 
835, 838. 
Financial assistance received in time of sickness, dis
ability, unemployment, etc. either from insurance or 
public programs such as social security. 
Contracts. When it is said that a valuable consideration 
for a promise may consist of a benefit to the promisor, 
"benefit" means that the promisor has, in return for his 
promise, acquired some legal right to which he would 
not otherwise have been entitled. Woolum v. Sizemore, 
267 Ky. 384, 102 S.W.2d 323, 324. "Benefits" of contract 
are advantages which result to either party from per
formance by other. DeCarlo v. Gerryco, Inc., 46 N.C. 
App. 15, 264 S.E.2d 370, 375. 
Eminent domain. It is a rule that, in assessing damages 
for private property taken or injured for public use, 
"special benefits" may be set off against the amount of 
damage found, but not "general benefits." Within the 
meaning of this rule, general benefits are such as accrue 
to the community at large, to the vicinage, or to all 
property similarly situated with reference to the work 
or improvement in question; while special benefits are 
such as accrue directly and solely to the owner of the 
land in question and not to others. 
As respects eminent domain law, "general benefits" 
are those which arise from the fulfillment of the public 
object which justified taking, while "special benefits" 
are those which arise from the particular relation of the 
land in question to the public improvement. Morehead 
v. State Dept. of Roads, 195 Neb. 31, 236 N.W.2d 623, 
627. 
Benefit association. See Benefit societies. 
Benefit building society. The original name for what 
is now more commonly called a "building society" (q.v.). 
Benefit certificate. A written obligation to pay the 
person therein named the amount specified upon the 
conditions therein stipulated. Also a term usually ap
plied to policies issued by fraternal and beneficiary 
societies. Chandler v. New York Life Ins. Co., 194 Ark. 
6, 104 S.W.2d 1060, 1061. 
Benefit-cost ratio. Such ratio is basically a comparison 
of anticipated benefits derived from particular public 
works project with anticipated costs over estimated life 
span of the project. Sierra Club v. Froehlke, D.C.Tex., 
359 F.Supp. 1289, 1360. 
158 
Benefit of bargain rule. Under such rule a defrauded 
purchaser may recover the difference between the real 
and the represented value of the property purchased. 
Auffenberg v. Hafley, Mo.App ., 457 S.W.2d 929, 337. 
This rule of damages gives damaged party equivalent of 
what the party would have received if the representa
tions relied upon had been true. Asleson v. West 
Branch Land Co., N.D., 311 N.W.2d 533, 543. 
In an action for fraud, plaintiffs recovery is limited to 
that measured by "out-of-pocket" rule, by which dam
ages are measured by difference between purchase price 
of property and fair market value of same property on 
date of sale, unless actionable misrepresentation was 
warranty of value, in which case plaintiff may recover 
under "benefit-of-the-bargain" rule by which damages 
are determined by difference between actual value of 
property received and its value had representations as 
made been true. Galego v. Knudsen, 573 P.2d 313, 318, 
281 Or. 43. 
Benefit of cession. In the civil law, the release of a 
debtor from future imprisonment for his debts, which 
the law operates in his favor upon the surrender of his 
property for the benefit of his creditors. 
Benefit of clergy. In its original sense, the phrase 
denoted the exemption which was accorded to clergymen 
from the jurisdiction of the secular courts, or from 
arrest or attachment on criminal process issuing from 
those courts in certain particular cases. Afterwards, it 
meant a privilege of exemption from the punishment of 
death accorded to such persons as were clerks, or who 
could read. This privilege of exemption from capital 
punishment was anciently allowed to clergymen only, 
but afterwards to all who were connected with the 
church, even to its most subordinate officers, and at a 
still later time to all persons who could read (then called 
"clerks"), whether ecclesiastics or laymen. It does not 
appear to have been extended to cases of high treason, 
nor did it apply to mere misdemeanors. The privilege 
was claimed after the person's conviction, by a species of 
motion in arrest of judgment, technically called "pray
ing his clergy." As a means of testing his clerical 
character, he was given a psalm to read (usually, or 
always, the fifty-first), and, upon his reading it correctly, 
he was turned over to the ecclesiastical courts, to be 
tried by the bishop or a jury of twelve clerks. These 
heard him on oath, with his witnesses and compurga
tors, who attested their belief in his innocence. This 
privilege operated greatly to mitigate the extreme rigor 
of the criminal laws, but was found to involve such gross 
abuses that parliament began to enact that certain 
crimes should be felonies "without benefit of clergy," 
and finally, by the Criminal Law Act of 1827, it was 
altogether abolished. The act of congress of April 30, 
1790, c. 9, § 31, 1 Stat. 119, provided that there should 
be no benefit of clergy for any capital crime against the 
United States, and, if this privilege formed a part of the 
common law of the several states before the Revolution, 
it no longer exists.

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159 
Sometimes used in negative sense, "without benefit of 
clergy", to describe status of man and woman who live 
together though not married to each other. 
Benefit of counsel. See Assistance of counsel; Counsel, 
right to. 
Benefit of discussion. In the civil law, the right which 
a surety has to cause the property of the principal 
debtor to be applied in satisfaction of the obligation in 
the first instance. Civ.Code La. arts. 3045-305 1. 
Benefit of division. Same as beneficium divisionis 
(q.v.). 
Benefit of inventory. In the civil law, the privilege 
which the heir obtains of being liable for the charges 
and debts of the succession, only to the value of the 
effects of the succession, by causing an inventory of 
these effects within the time and manner prescribed by 
law. Civil Code La. art. 1032. 
Benefit of order. See Beneficium (Beneficium ordinis). 
Benefit societies. Under this and several similar 
names, in various states, corporations which exist to 
receive periodical payments from members, and hold 
them as a fund to be loaned or given to members 
needing pecuniary relief. 
Benefits rule. This rule provides that where a benefit, 
as well as a harm, is conferred by a tort-feasor, the 
benefits must be weighed against the elements of 
claimed damage. Clapham v. Yanga, 102 Mich.App. 47, 
300 N.W.2d 727, 734. 
Benerth. A feudal service rendered by the tenant to his 
lord with plow and cart. 
Benevolence. The doing of a kind or helpful action 
towards another, under no obligation except an ethical 
one. 
The love of humanity; the desire to promote its pros
perity or happiness. The term includes acts of well
wishing towards others, for the promotion of general 
happiness, and plans actuated by love of others and a 
desire for their well-being. In re Peabody's Estate, 124 
Misc. 338, 208 N.Y.S. 664, 671. Also beneficent; doing 
well. 
It is a broader term than "charity" which it includes, 
and with which it is frequently used synonymously. 
"Charity" in its legal sense implies giving without con
sideration or expectation of return, and "benevolence" 
applies to any act which is prompted by or has for its 
object the well-being of others. State v. Texas Mut. Life 
Ins. Co. of Texas, Tex.Civ.App., 51 S.W.2d 405, 410. 
See also Benevolent; Charitable; Charity. 
Benevolent /b�mev�l�mt(. Philanthropic; humane; hav
ing a desire or purpose to do good to men; intended for 
the conferring of benefits, rather than for gain or profit; 
loving others and actively desirous of their well being. 
In re Altman's Estate, 87 Misc. 255, 149 N.Y.S. 601, 605. 
This word, as applied to objects or purposes, may refer 
to those which are in their nature charitable, and may 
also have a broader meaning and include objects and 
BENEVOLENT SOCIETY 
purposes not charitable in the legal sense of that word. 
Acts of kindness, friendship, forethought, or good-will 
might properly be described as benevolent. It has there
fore been held that gifts to trustees to be applied for 
"benevolent purposes" at their discretion, or to such 
benevolent purposes as they could agree upon, do not 
create a public charity. But where the word is used in 
connection with other words explanatory of its meaning, 
and indicating the intent of the donor to limit it to 
purposes strictly charitable, it has been held to be syn
onymous with, or equivalent to, "charitable." 
See also Charitable; Charity. 
Benevolent associations. Those having a philanthropic 
or charitable purpose, as distinguished from such as are 
conducted for profit; specifically, "benefit associations" 
or "beneficial associations." Another name for a "bene
fit society," "benevolent society," and "fraternal" or 
"friendly society." State v. Texas Mut. Life Ins. Co. of 
Texas, Tex.Civ.App., 51 S.W.2d 405, 410. See also Be
nevolent corporation; Charitable corporation. 
Benevolent corporation. A nonprofit corporation; cre
ated for charitable rather than for business purposes. 
One that ministers to all; the purpose may be anything 
that promotes the mental, physical, or spiritual welfare 
of man. The term may include a corporation to which a 
bequest is made to be used in the improvement of the 
social, physical, and economic condition of the employ
ees of a business corporation. In re Altman's Estate, 87 
Misc. 255, 149 N.Y.S. 601. See also Charitable corpora
tion. 
Benevolentia regis habenda /ben�v�lensh(iy)� riyj�s 
h�b€md�/. The form in ancient fines and submissions to 
purchase the king's pardon and favor in order to be 
restored to place, title or estate. 
Benevolent society. See Benevolent associations; Be
nevolent corporation. 
Benigne faciendre sunt interpretationes chartarum, 
ut res magis valeat quam pereat; et qure libet con
cessio fortissime contra donatorem interpretanda 
est /b�nigniy freshiyendiy s�nt int�rpr�teyshiyowniyz 
karter�m, �t riyz meyj�s vreliy�t kwrem pehriy�t; et 
kwiyl�b�t k�nsesh(iy)ow fortis�miy kontr� down
�tor�m int�rpr�trend� est!. Liberal interpretations are 
to be made of deeds, so that the purpose may rather 
stand than fall; and every grant is to be taken most 
strongly against the grantor. 
Benigne faciendre sunt interpretationes, propter sim
plicitatem laicorum, ut res magis valeat quam per
eat; et verba intentioni, non e contra, debent inser
vire /b�nigniy freshiyendiy s�nt int�rpr�teyshiyowniyz, 
propt�r simplis�teyt�m ley�kor�m, �t riyz meyj�s vreliy�t 
kwrem pehriy�t; et v;)rb� intenshiyownay, non ey 
kontr�, deb�t ins�rvayriy/. Constructions [of written 
instruments] are to be made liberally, on account of the 
simplicity of the laity [or common people], in order that 
the thing [or subject-matter] may rather have effect 
than perish [or become void]; and words must be subject 
to the intention, not the intention to the words. 2 
Bl.Comm. 379.

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BEQUEATH 
Benignior sententia in verbis generalibus seu dubiis, 
est prreferenda Ib:mign(i)yor sentensh(iy);} in v:}rb;}s 
jen;}reyl;}bas syuw dyuwbiy;}s est pref;}rend;}/. The more 
favorable construction is to be placed on general or 
doubtful expressions. 
Benignius leges interpretandre sunt quo voluntas ea
rum conservetur Ib;}nign(i)y;}s liyjiyz int�rpr;}trendiy 
s�nt kwow v;}l:}ntres iyer;}m kons;}rveyt;}r I. Laws are to 
be more liberally interpreted, in order that their intent 
may be preserved. 
Bequeath Ib;}kwiyOi. To give personal property by will 
to another. It therefore is distinguishable from "de
vise," which is properly used of realty. But if the 
context clearly shows the intention of the testator to use 
the word "bequeath" as synonymous with "devise," it 
may be held to pass real property. See Bequest. 
Bequest Ib;}kwest/. A gift (transfer) by will of personal 
property; a legacy. Disposition of realty in will is 
termed "devise." See also Charitable bequest; Demons
trative bequest; Devise; General bequest; Legacy. 
Conditional bequest. One the taking effect or continu
ing of which depends upon the happening or non-occur
rence of a particular event. 
Executory bequest. The bequest of a future, deferred, or 
contingent interest in personalty. 
Residuary bequest. A gift of all the remainder of the 
testator's personal estate, after payment of debts and 
legacies, etc. 
Specific bequest. One whereby the testator gives to the 
legatee all his property of a certain class or kind; as all 
his pure personalty. 
Berat. Also barat. A warrant or patent of dignity or 
privilege given by an Oriental monarch. 
Berbiage Ib:}rbiy;}j/. A rent paid for the pasturing of 
sheep. 
Bernet. In Saxon law, burning; the crime of house 
burning, now called "arson." 
Bernstein test. Form of blood test used in determining 
child's paternity and predicated on 4 blood types. 
Berry, or bury. A villa or seat of habitation of a 
nobleman; a dwelling or mansion house; a sanctuary. 
Bertillon system Ib�rtiyown sist;}m/. A method of an
thropometry (q. v.), once used for the identification of 
criminals and other persons, consisting of the taking 
and recording of a system of numerous, minute, and 
uniform measurements of various parts of the human 
body, absolutely and in relation to each other, the facial, 
cranial, and other angles, and of any eccentricities or 
abnormalities noticed in the individual. See DNA identi
fication. 
Bes. Lat. In the Roman law, a division of the as, or 
pound, consisting of eight uncUe, or . duodecimal parts, 
and amounting to two-thirds of the as. 2 Bl.Comm. 462 
note m. Two-thirds of an inheritance. Eight per cent. 
interest. 
160 
Besaile, besayle Ibeseyl/. The great-grandfather, proa
vus. 1 BLComm. 186. 
Besayel, besaiel, besayle Ibeseyl/. In old English law, 
a writ which lay where a great-grandfather died seised 
of lands and tenements in fee-simple, and on the day of 
his death a stranger abated, or entered and kept out the 
heir. 3 Bl.Comm. 186. 
Beseech. To entreat; to emplore. 
Besides. In addition to; moreover; also; likewise. 
Besoin Ib;}soyn/b;}swren/. Fr. Need. 
Besot Ib;}sot/. To stupefy, to make dull or senseless, to 
make to dote; and "to dote" is to be delirious, silly, or 
insane. 
Best. Of the highest quality; of the greatest usefulness 
for the purpose intended. Most desirable, suitable, use
ful, or satisfactory. For example: the "best bid" of 
interest by a prospective depositary of school funds 
would not necessarily be the highest bid, but, looking to 
the solvency of the bidder, the bond tendered, and all 
the circumstances surrounding the transaction, the safe
ty and preservation of the school fund, the "best bid" 
might be the lowest bid. 
Best-effort basis. With respect to a new securities issue, 
a commitment by the investment banker or group han
dling the new issue to sell the securities as an agent of 
the issuing party, rather than as an underwriting of the 
entire issue. 
Best evidence. Primary evidence, as distinguished from 
secondary; original, as distinguished from substitution
ary; the best and highest evidence of which the nature 
of the case is susceptible, not the highest or strongest 
evidence which the nature of the thing to be proved 
admits of. The original of a written instrument is itself 
always regarded as the primary or best possible evidence 
of its existence and contents; a copy, or the recollection 
of a witness, would be secondary evidence. "Best evi
dence" or "primary evidence" includes the best evidence 
which is available to a party and procurable under the 
existing situation, and all evidence falling short of such 
standard, and which in its nature suggests there is 
better evidence of the same fact, is "secondary evi
dence." See Best evidence rule; Original document rule; 
Primary evidence. 
Best evidence rule. Rule which requires that best evi
dence available be presented in lieu of less satisfactory 
evidence. People v. Banks, Colo.App., 655 P.2d 1384, 
1387. This rule prohibits the introduction into evidence 
of secondary evidence unless it is shown that original 
document has been lost or destroyed or is beyond juris
diction of court without fault of the offering party; if 
original document is lost, then secondary evidence is 
properly admissible. State v. Stephens, Mo.App., 556 
S.W.2d 722, 723. Fed.R.Evid. 1002 states the basic rule 
as follows: "To prove the content of a writing, recording, 
or photograph, the original writing, recording, or photo
graph is required, except as otherwise provided in these 
rules or by Act of Congress." As to what constitutes an 
"original writing", see Original.

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161 
Bestiality. A sexual connection between a human being 
and an animal. State v. Poole, 59 Ariz. 44, 122 P.2d 415, 
416. At common law the term "crime against nature" 
embraced both "sodomy" and "bestiality". See Sodomy. 
Bestow. To give, grant, confer, or impart; not necessar
ily limited in meaning to "devise." 
Best use. In eminent domain, the value of property 
considering its optimum use at a given time and hence 
the money which should be awarded for such govern
mental taking; used commonly as "highest and best 
use". (q.v.). 
Bet. An agreement between two or more persons that a 
sum of money or other valuable thing, to which all 
jointly contribute, shall become the sole property of one 
or some of them on the happening in the future of an 
event at present uncertain, or according as a question 
disputed between them is settled in one way or the 
other. A contract by which two or more parties agree 
that a sum of money, or other thing, shall be paid or 
delivered to one of them on the happening or not hap
pening of an uncertain event. See Wager; a term gener
ally synonymous with bet. See also Betting book; Bet
ting slips. 
Betray. Act of delivering up to an enemy something of 
value. To divulge a matter in breach of a confidence. 
To deceive, seduce or lead astray. A "betrayal," as of a 
professional secret on the part of a physician, signifies a 
wrongful disclosure in violation of the trust imposed by 
the patient. See Treason. 
Betrothed Ib::ltrowCid/. One who has exchanged prom
ises to marry. The term may be synonymous with 
"intended wife." See also Engagement. 
Betrothment, betrothal. Mutual promise of marriage; 
the plighting of troth; a mutual promise or contract 
between a man and woman competent to make it, to 
marry at a future time. 
Better Business Bureau. Local, business-supported or
ganizations that promote good business practices, re
ceive complaints about specific businesses, and provide 
consumers with information about specific firms. The 
local bureaus are loosely affiliated with a national bu
reau. 
Better equity. See Equity. 
Betterment. An improvement put upon a property 
which enhances its value more than mere replacement, 
maintenance, or repairs. The improvement may be 
either temporary or permanent. Also applied to denote 
the additional value which a property acquires in conse
quence of some public improvement, as laying out or 
widening a street, etc. See also Improvement. 
Betterment acts. Statutes which provide that a bona 
fide occupant of real estate making lasting improve
ments in good faith shall have a lien upon the estate 
recovered by the real owner to the extent that his 
improvements have increased the value of the land. 
Also called "occupying claimant acts." 
BIANNUALLY 
Betting. Act of placing a bet or wager. See Bet; Gam
bling; Pari-mutuel betting; Wager. 
Betting book. A book kept for registering bets on the 
result of a race as operated on race track. In a broader 
sense, the "betting book" is that book which enables the 
professional bettor to carry on his business, and to 
promote a race, and it includes the book, the making 
book and the bookmaker. 
Betting slips. Part of gambling paraphernalia consist
ing of papers on which numbers or names of dogs or 
horses to be bet are written and which constitutes evi
dence for prosecution of illegal gaming. 
Between. A space which separates. Strictly applicable 
only with reference to two things, but this may be 
understood as including cases in which a number of 
things are discriminated collectively as two wholes, or as 
taken in pairs, or where one thing is set off against a 
number of others. In re McShane's Will, 158 Misc. 777, 
286 N.Y.S. 680, 682. Sometimes used synonymously 
with "among". In re Moore's Estate, 157 Pa.Super. 296, 
43 A.2d 359. As a measure or indication of distance, 
this word has the effect of excluding the two termini. If 
an act is to be done "between" two certain days, it must 
be performed before the commencement of the latter 
day. In computing the time in such a case, both the 
days named are to be excluded. 
Bewared. Eng. Expended. Before the Britons and 
Saxons had introduced the general use of money, they 
traded chiefly by exchange of wares. 
Beyond a reasonable doubt. In evidence means fully 
satisfied, entirely convinced, satisfied to a moral certain
ty; and phrase is the equivalent of the words clear, 
precise and indubitable. In criminal case, the accused's 
guilt must be established "beyond a reasonable doubt," 
which means that facts proven must, by virtue of their 
probative force, establish guilt. See also Reasonable 
doubt. 
Beyond control. Anything or any person who, in rela
tionship to another person is out of reach of the latter, 
either physically, legally or morally; for example, a 
child who has reached his majority is beyond the legal 
control of his parents. See also Act of God. 
Beyond the seas. Beyond the limits of the United 
States. In England, an expression to indicate that a 
person was outside the United Kingdom. The Limita
tion Act of 1939 abolished the old procedure whereby a 
defendant's absence beyond the seas suspended the oper
ation of the Statutes of Limitations. 
B.F. An abbreviation for bonum factum, a good or prop
er act, deed, or decree; signifies "approved." 
BFOQ. Bona Fide Occupational Qualification. See Bona 
fide. 
BI. Bodily injury. 
BIA. Bureau of Indian Affairs. 
Biannually. Twice a year; semi-annually.

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BIAS 
Bias Ibay�s/. Inclination; bent; prepossession; a pre
conceived opinion; a predisposition to decide a cause or 
an issue in a certain way, which does not leave the mind 
perfectly open to conviction. To incline to one side. 
Condition of mind, which sways judgment and renders 
judge unable to exercise his functions impartially in 
particular case. As used in law regarding disqualifica
tion of judge, refers to mental attitude or disposition of 
the judge toward a party to the litigation, and not to any 
views that he may entertain regarding the subject mat
ter involved. State ex reI. Mitchell v. Sage Stores Co., 
157 Kan. 622, 143 P.2d 652, 655. 
Actual bias consists in the existence of a state of mind 
on the part of the juror which satisfies the court, in the 
exercise of a sound discretion, that the juror cannot try 
the issues impartially and without prejudice to the sub
stantial rights of the party challenging. 
See also Average man test; Discrimination; Prejudice. 
Bible. See Family Bible. 
Bicameral system Ibaykrem�r�l sist�m/. A term ap
plied by Jeremy Bentham to the division of a legislative 
body into two chambers, as in the United States govern
ment (Senate and House). 
Bid. An offer by an intending purchaser to pay a desig
nated price for property which is about to be sold at 
auction. An offer to perform a contract for work and 
labor or supplying materials or goods at a specified 
price. Public contracts are frequently awarded on basis 
of submitted, competitive bids. See also Firm bid; Invita
tion to bid; Let; Lowest responsible bidder; Open bid; 
Sealed bid. 
Term may also refer to application for another job by 
an employee. 
Best bid. One that is not necessarily the lowest, but 
rather fits the best interests of the issuer of the bid; 
taken into consideration is the solvency of the bidder, 
quality of his work, reputation, etc. 
Bidder. One who makes a bid. One who offers to pay a 
specified price for an article offered for sale at a public 
auction or to perform a certain contract for a specified 
price. As to Responsible bidder see that title. 
Biddings. Offers of a designated price for goods or other 
property put up for sale at auction. 
Bidding up. Raising the price for an item being sold at 
an auction by a series of bids, each higher than the 
other. If such successive bids are made collusively by 
persons with an interest in raising the final bid, such 
practice is unlawful. 
Bid in. Property sold at auction is said to be "bid in" by 
the owner or an incumbrancer or some one else who is 
interested in it, when he attends the sale and makes the 
successful bid. This is done so that property is not sold 
below actual value. 
Bid off. One is said to "bid off' a thing when he bids 
for it at an auction sale, and it is knocked down to him 
in immediate succession to the bid and as a consequence 
of it. 
162 
By-bi dding. In the law relating to sales by auction, this 
term is equivalent to "puffing." The practice consists in 
making fictitious bids for the property, under a secret 
arrangement with the owner or auctioneer, for the pur
pose of misleading and stimulating other persons who 
are bidding in good faith. 
Competitive bidding. Bids which are submitted as the 
result of public notice and advertising of an intended 
sale or purchase. 
Letting or awarding of bids. See Let. 
Open bid. Offer to perform a contract together with the 
price, but with right to reduce the price to meet price 
quoted by others for same job. 
Sealed bid. One submitted under seal, and which is not 
to be opened until a specified time at which all bids are 
to be opened and compared. Commonly required on 
construction contracts, to assure independence of bid
ding. 
Upset bid. A bid made after a judicial sale, but before 
the successful bid at the sale has been confirmed, larger 
or better than such successful bid, and made for the 
purpose of upsetting the sale and securing to the "upset 
bidder" the privilege of taking the property at his bid or 
competing at a new sale. 
Bid and asked. Price quotation for securities that are 
not frequently traded or are traded on the over-the-coun
ter market. The bid quotation is the highest price a 
prospective buyer is willing to pay at a particular time; 
the asked quotation is the lowest price the seller is 
willing to sell for. Together, the two prices constitute a 
quotation; the difference between the two prices is the 
"spread." 
Bid bond. Type of bond required in public construction 
projects which must be filed at the time of the bid and 
which protects the public agency in the event that the 
bidder refuses to enter into a contract after the award to 
him or withdraws his bid before the award. A type of 
indemnity bond. 
Bidder. See Bid. 
Bid price. In market exchanges, the price a buyer is 
willing to pay, as contrasted with the price at which a 
seller is willing to sell; called the "ask price". Also, the 
amount specified in a bid as the amount for which the 
bidder will perform the work or buy the property. 
Bid quote. Price at which one (usually a broker or 
dealer) is willing to purchase a security (or commodity). 
Bid shopping. The use of the low bid already received 
by general contractor to pressure other subcontractors 
into submitting even lower bids. Southern California 
Acoustics Co. v. C.V. Holder, Inc., 71 C.2d 719, 79 Cal. 
Rptr. 319, 325, 456 P.2d 975. 
Bienes Ibiy€mes/. In Spanish law, goods; property of 
every description, including real as well as personal 
property; all things (not being persons) which may serve 
for the uses of m�m.

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163 
Bienes comunes. Common property; those things which, 
not being the private property of any person, are open to 
the use of all, such as the air, rain, water, the sea and its 
beaches. 
Bienes gananciales. A species of community in property 
enjoyed by husband and wife, the property being divisi
ble equally between them on the dissolution of the 
marriage; does not include what they held as their 
separate property at the time of contracting the mar
riage. 
Bienes publicos. Those things which, as to property, 
pertain to the people or nation, and, as to their use, to 
the individuals of the territory or district, such as rivers, 
shores, ports, and public roads. 
Biennial Ibayen(i)y�l/. Occurring every two years. 
Biennial session. The regular session of most State 
legislatures, usually held in odd-numbered years; grad
ually being supplanted by annual sessions. 
Biennium Ibayeniy�m/. A two-year period; the period 
for which appropriations are made in many State legis
latures. 
Biens Ibiynz/byen(z)/. In old English law, property of 
every description, except estates of freehold and inheri
tance. 
In French law, this term includes all kinds of proper
ty, real and personal. Biens are divided into biens 
meubles, movable property; and biens immeubles, im
movable property. The distinction between movable 
and immovable property is recognized by the continen
tal jurists, and gives rise, in the civil as well as in the 
common law, to many important distinctions as to rights 
and remedies. 
Bifurcated trial Ibayf�rkeyt�d tray(�)l/. Trial of issues 
separately, e.g. guilt and punishment, or guilt and sani
ty, in criminal trial. 
The trial of the liability issue in a personal injury or 
wrongful death case separate from and prior to trial of 
the damages question. The advantage of so doing is 
that if the liability issue is determined in defendant's 
favor there is no need to try the damages question, 
which can be an involved one entailing expensive expert 
witnesses and other proof. 
Compare Severance of actions. 
Bigamus Ibig;}m;}s/. In the civil law, a man who was 
twice married; one who at different times and succes
sively has married two wives. One who has two wives 
living. One who marries a widow. 
Used in ecclesiastical matters as a reason for denying 
benefit of the clergy. 
Bigamus seu trigamus, etc., est qui diversis tempori
bus et successive duas seu tres uxores habuit 
Ibig�m;}s syuw trig;}m;}s est kway d�v:}rs�s tempor;}b;}s et 
s;}ksesayviy d(y)uw;}s syuw trez ;}ksoriyz hre
b(y)uw�t/. A bigamus or trigamus, etc., is one who at 
different times and successively has married two or 
three wives. 
BILATERAL CONTRACT 
Bigamy Ibig;}miy I. The criminal offense of willfully and 
knowingly contracting a second marriage (or going 
through the form of a second marriage) while the first 
marriage, to the knowledge of the offender, is still sub
sisting and undissolved. The state of a man who has 
two wives, or of a woman who has two husbands, living 
at the same time. 
A married person is guilty of bigamy, a misdemeanor, 
if he contracts or purports to contract another marriage, 
unless at the time of the subsequent marriage: (a) the 
actor believes that the prior spouse is dead; or (b) the 
actor and the prior spouse have been living apart for 
five consecutive years throughout which the prior 
spouse was not known by the actor to be alive; or (c) a 
Court has entered a judgment purporting to terminate 
or annul any prior disqualifying marriage, and the actor 
does not know that judgment to be invalid; or (d) the 
actor reasonably believes that he is legally eligible to 
remarry. Model Penal Code, § 230. l. 
In the canon law, the term denoted the offense com
mitted by an ecclesiastic who married two wives succes
sively. It might be committed either by marrying a 
second wife after the death of a first or by marrying a 
widow. 
See also POlygamy. 
Big board. A popular term referring to the board show
ing the current prices of securities listed on the New 
York Stock Exchange. 
Big eight. A term which refers to the eight largest 
certified public accounting (CPA) firms in the United 
States. The ranking of the firms consider such factors 
as gross receipts, number of staff, etc. 
Bigot. A prejudiced person; or one that is wedded to an 
opinion in matters of religion, race, etc. 
Bilagines Ibayleyj;}niyz/. By-laws of towns; municipal 
laws. 
Bilan. A term used in Louisiana, derived from the 
French. A book in which bankers, merchants, and 
traders write a statement of all they owe and all that is 
due them; a balance-sheet. 
Bilanciis deferendis Ib�lrenshiy;}s def�rend�s/. In Eng
lish law, an obsolete writ addressed to a corporation for 
the carrying of weights to such a haven, there to weigh 
the wool anciently licensed for transportation. 
Bilateral contract Ibaylret;}r;}l kontrrekt/. A term, used 
originally in the civil law, but now generally adopted, 
denoting a contract in which both the contracting par
ties are bound to fulfill obligations reciprocally towards 
each other; as a contract of sale, where one becomes 
bound to deliver the thing sold, and the other to pay the 
price of it. A contract executory on both sides, and one 
which includes both rights and duties on each side. 
Contract formed by the exchange of promises in which 
the promise of one party is consideration supporting the 
promise of the other as contrasted with a unilateral 
contract which is formed by the exchange of a promise 
for an act. Antonucci v. Stevens Dodge, Inc., 73 Misc.2d

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BILATERAL CONTRACT 
173, 340 N.Y.S.2d 979, 982. See Contract. Compare 
Uni lateral contract. 
Bilboes. A device used for punishment at sea, similar to 
the stocks (q. v.) on land. 
Biline. A word used by Briton in the sense of "collat
eral." En line biline, in the collateral line. 
Bilinguis Ibayli1Jgw;)s/. Of a double language or tongue; 
that can speak two languages. A term formerly applied 
to a jury composed partly of Englishmen and partly of 
foreigners, which, by the English law, an alien party to 
a suit was, in certain cases, entitled to; more commonly 
called a "jury de medietate lingure." 3 Bl.Comm. 360. 
Bill. As a legal term, this word has many meanings and 
applications, the most important of which are set forth 
below: 
Bill of rights. A formal and emphatic legislative asser
tion and declaration of popular rights and liberties 
usually promulgated upon a change of government; e.g. 
the famous Bill of Rights of 1688 in English history. 
Also the summary of the rights and liberties of the 
people, or of the principles of constitutional law deemed 
essential and fundamental, contained in many of the 
American state constitutions. Hamill v. Hawks, C.C.A. 
Okl., 58 F.2d 41, 47. That portion of Constitution guar
anteeing rights and privileges to the individual; i.e. first 
ten Amendments of V.S. Constitution. 
Commercial law. A written statement of the terms of a 
contract, or specification of the items of a transaction or 
of a demand. Also, a general name for any item of 
indebtedness, whether receivable or payable; an account 
for goods sold, services rendered, or work done. As a 
verb, as generally and customarily used in commercial 
transactions, "bill" is synonymous with "charge" or "in
voice." George M. Jones Co. v. Canadian Nat. R. Co., 
D.C.Mich., 14 F.2d 852, 855. See also Commercial paper; 
Maritime law, below. 
Bill-book. A book in which an account of bills of 
exchange and promissory notes, whether payable or 
receivable, is stated. 
Bill-head. A printed form on which merchants and 
traders make out their bills and render accounts to 
their customers. 
Bill of lading. See Bill of lading, infra. 
Bill of parcels. A statement sent to the buyer of goods, 
along with the goods, exhibiting in detail the items 
composing the parcel and their several prices, to enable 
him to detect any mistake or omission; an invoice 
(q.v.). 
Bill of sale. In contracts, a written agreement, former
ly limited to one under seal, by which one person 
assigns or transfers his right to or interest in goods and 
personal chattels to another. Legal document which 
conveys title from seller to buyer. 
Bill payable. In a merchant's accounts, all bills which 
he has accepted, and promissory notes which he has 
made, are called "bills payable," and are entered in a 
ledger account under that name, and recorded in a 
164 
book bearing the same title. See Account (Account 
payable). 
Bill receivable. In a merchant's accounts, all notes, 
drafts, checks, etc., payable to him, or of which he is to 
receive the proceeds at a future date, are called "bills 
receivable," and are entered in a ledger-account under 
that name, and also noted in a book bearing the same 
title. See Account (Account receivable). 
Bill rendered. A bill of items rendered by a creditor to 
his debtor; an "account rendered," as distinguished 
from "an account stated." 
Grand bill of sale. In old English law, the name of an 
instrument used for the transfer of a ship while she is 
at sea. An expression which is understood to refer to 
the instrument whereby a ship was originally transfer
red from the builder to the owner, or first purchaser. 
Commercial paper. A promissory obligation for the pay
ment of money. 
Bill broker. Middleman who negotiates purchase or 
sale of commercial paper. 
Bill of credit. A bill or promissory note issued by the 
government, upon its faith and credit, designed to 
circulate in the community as money. See Federal 
reserve notes; Treasury bill. 
In mercantile law, a license or authority given in 
writing from one person to another, very common 
among merchants, bankers, and those who travel, em
powering a person to receive or take up money of their 
correspondents abroad. See also Letter of credit. 
Bill of exchange. An unconditional order in writing 
addressed by one person to another, signed by the 
person giving it, requiring the person to whom it is 
addressed to pay on demand or at a fixed or determin
able future time a sum certain in money. A three 
party instrument in which first party draws an order 
for the payment of a sum certain on a second party for 
payment to a third party at a definite future time. 
Same as "draft" under V.C.C. A check is a demand 
bill of exchange. See also Advance bill; Banker's ac
ceptance; Blank bill; Clean bill; Draft; Time (Time bill). 
Foreign bill of exchange. A bill of exchange drawn in 
one country upon another country not governed by the 
same homogeneous laws, or not governed throughout 
by the same municipal laws. A bill of exchange drawn 
in one of the Vnited States upon a person residing in 
another state is a foreign bill. 
Common law pleading and practice. 
Bill in equity. The first written pleading in a proceed
ing in equity. The complaint in a suit in equity. 
Bill of costs. A certified, itemized statement of the 
amount of costs in an action or suit. 
Bill of evidence. Stenographer's transcript of testimo
ny heard at trial which may be considered on appeal as 
bill of exceptions. Spencer v. Commonwealth, 250 Ky. 
370, 63 S.W.2d 288. 
Bill of exceptions. A formal statement in writing of 
the objections or exceptions taken by a party during 
the trial of a cause to the decisions, rulings, or instruc-

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165 
tions of the trial judge, stating the objection, with the 
facts and circumstances on which it is founded, and, in 
order to attest its accuracy, signed by the judge; the 
object being to put the controverted rulings or decisions 
upon the record for the information of the appellate 
court. Bills of exceptions have been eliminated in civil 
appeals in jurisdictions which have adopted Rules of 
Civil Procedure tracking Fed.Rules of Civil Proc. in 
favor of a straight appeal with no need to claim excep
tion after making objection at trial; e.g. Mass.R.Civ. 
Proc. 46. 
Bill of particulars. A written statement or specifica
tion of the particulars of the demand for which an 
action at law is brought, or of a defendant's set-off 
against such demand (including dates, sums, and items 
in detail), furnished by one of the parties to the other, 
either voluntarily or in compliance with a judge's order 
for that purpose. It is designed to aid the defendant in 
interposing the proper answer and in preparing for 
trial, by giving him detailed information regarding the 
cause of action stated in the complaint. See e.g. New 
York CPLR § 3041 et seq. In jurisdictions which have 
adopted Rules of Civil Procedure, the bill of particulars 
has been replaced by various discovery devices (Fed.R. 
Civil P. 26 et seq.) and by motion for more definite 
statement (Fed.R. Civil P. 12(e)). See however Crimi
nal law, below, with respect to bill of particulars in 
criminal cases. 
Contracts. An obligation; a deed, whereby the obligor 
acknowledges himself to owe to the obligee a certain 
sum of money or some other thing. 
Bill obligatory. A bond absolute for the payment of 
money. It is called also a "single bill," and differs from 
a promissory note only in having a seal. See Bill 
penal, below. 
Bill of debt. An ancient term including promissory 
notes and bonds for the payment of money. 
Bill penal. A written obligation by which a debtor 
acknowledges himself indebted in a certain sum, and 
binds himself for the payment thereof, in a larger sum, 
called a "penalty." Bonds with conditions have super
seded such bills in modern practice. They are some
times called bills obligatory, and are properly so called; 
but every bill obligatory is not a bill penal. 
Bill single. A written promise to pay to a person or 
persons named a stated sum at a stated time, without 
any condition. When under seal, it is sometimes called 
a "bill obligatory" (q.v.). It differs from a "bill penal" 
(q.v.) in that it expresses no penalty. 
Criminal law. 
Bill of attainder. Legislative acts, no matter what 
their form, that apply either to named individuals or to 
easily ascertainable members of a group in such a way 
as to inflict punishment on them without a judicial 
trial. United States v. Brown, 381 U.S. 437, 448-49, 85 
S.Ct. 1707, 1715, 14 L.Ed. 484, 492; United States v. 
Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 
1252. An act is a "bill of attainder" when the punish
ment is death and a "bill of pains and penalties" when 
BILL 
the punishment is less severe; both kinds of punish
ment fall within the scope of the constitutional prohibi
tion. U.S.C onst. Art. I, Sec. 9, Cl. 3 (as to Congress); 
Art. I, Sec. 10 (as to state legislatures). 
Bill of indemnity. See Bill of indemn ity, infra. 
Bill of indictment. A formal written document accus
ing a person or persons named of having committed a 
felony or misdemeanor, lawfully laid before a grand 
jury (usually by prosecutor) for their action upon it. 
See Indictment; Presentment. 
Bill of pains and penalties. See Bill of attainder, 
above. 
Bill of particulars. Form or means of discovery in 
which the prosecution sets forth the time, place, man
ner and means of the commission of the crime as 
alleged in complaint or indictment. It is one method 
available to defendant to secure default of charge 
against him. Fed.R.Crim.P. 7. The purpose of a "bill 
of particulars" is to give notice to the accused of the 
offenses charged in the bill of indictment so that he 
may prepare a defense, avoid surprise, or intelligently 
raise pleas of double jeopardy and the bar of the statute 
of limitations. Corn. v. Mervin, 230 Pa.Super. 552, 326 
A.2d 602, 605. 
Equity pleading and practice. The initial pleading of 
plaintiff or petitioner in equity action in contrast to 
declaration (complaint) in law actions. Under Rules of 
Civil Procedure, however, bill has been replaced by 
complaint for both equitable and legal actions because of 
merger of law and equity. Fed.R. Civil P. 2. 
In England, in the ancient practice of the court of 
king's bench, the usual and orderly method of beginning 
an action was by a bill, or original bill, or plaint. This 
was a written statement of the plaintiffs cause of action, 
like a declaration or complaint, and always alleged a 
trespass as the ground of it, in order to give the court 
jurisdiction. 3 Bl.Comm. 43. 
Bill for a new trial. A bill in equity in which the 
specific relief asked is an injunction against the execu
tion of a judgment rendered at law, and a new trial in 
the action on account of some fact which would render 
it inequitable to enforce the judgment, but which was 
not available to the party on the trial at law, or which 
he was prevented from presenting by fraud or accident, 
without concurrent fraud or negligence on his own 
part. Superseded by motion for new trial in jurisdic
tions with Rules of Civil Procedure (Rule 59). 
Bill for foreclosure. One which is filed by a mortgagee 
against the mortgagor, for the purpose of having the 
estate sold, thereby to obtain the sum mortgaged on the 
premises, with interest and costs. 
Bill in aid of execution. A bill to set aside encum
brances or conveyances therein specified as fraudulent. 
Pape v. Pareti, 315 Ill. App. 1, 42 N.E.2d 361, 364. 
Bill in nature of a bill of review. A bill in equity, to 
obtain a re-examination and reversal of a decree, filed 
by one who was not a party to the original suit, nor 
bound by the decree.

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BILL 
Bill in nature of a bill of revivor. Where, on the 
abatement of a suit, there is such a transmission of the 
interest of the incapacitated party that the title to it, as 
well as the person entitled, may be the subject of 
litigation in a court of chancery, the suit cannot be 
continued by a mere bill of revivor, but an original bill 
upon which the title may be litigated must be filed. 
This is called a "bill in the nature of a bill of revivor." 
It is founded on privity of estate or title by the act of 
the party. And the nature and operation of the whole 
act by which the privity is created is open to controver
sy. 
Bill in nature of a supplemental bill. A bill filed when 
new parties, with new interests, arising from events 
happening since the suit was commenced, are brought 
before the court; such differs from a supplemental bill, 
which is properly applicable to those cases only where 
the same parties or the same interests remain before 
the court. 
Bill in nature of interpleader. See Bill of in terpleader, 
below. 
Bill of certiorari. A bill, the object of which is to 
remove a suit in equity from some inferior court to the 
court of chancery, or some other superior court of 
equity, on account of some alleged incompetency of the 
inferior court, or some injustice in its proceedings. As 
an appellate vehicle, it has been replaced by appeal in 
jurisdictions which have adopted Rules of Appellate 
Procedure in civil cases. See Certiorari. 
Bill of conformity. One filed by an executor or admin
istrator, who finds the affairs of the deceased so much 
involved that he cannot safely administer the estate 
except under the direction of a court of chancery. This 
bill is filed against the creditors, generally, for the 
purpose of having all their claims adjusted, and procur
ing a final decree settling the order of payment of the 
assets. 
Bill of discovery. A proceeding by a party against an 
adversary for discovery of facts within adversary's 
knowledge, or discovery of documents, writings, or oth
er things within his possession or power, to be used 
either offensively or defensively in a pending or con
templated action. In aid of action at law is equitable 
remedy to enable litigant to obtain, prior to trial, such 
information as is in exclusive possession of adverse 
party and is necessary to establishment of complain
ant's case. Superseded by discovery rules in jurisdic
tions that have adopted Fed.Rules of Civil Proc. (Rules 
26-- 37). 
Bill of information. In England, where a suit is insti
tuted on behalf of the crown or government, or of those 
of whom it has the custody by virtue of its prerogative, 
or whose rights are under its particular protection, the 
matter of complaint is offered to the court by way of 
information by the attorney or solicitor general, in
stead of by petition. Where a suit immediately con
cerns the crown or government alone, the proceeding is 
purely by way of information, but, where it does not do 
so immediately, a relator is appointed, who is answera
ble for costs, etc., and, if he is interested in the matter 
in connection with the crown or government, the pro-
166 
ceeding is by information and bill. Informations differ 
from bills in little more than name and form, and the 
same rules are substantially applicable to both. 3 
Bl.Comm. 261. 
Bill of in terpleader. The name of a bill in equity to 
obtain a settlement of a question of right to money or 
other property adversely claimed, in which the party 
filing the bill has no interest, although it may be in his 
hands, by compelling such adverse claimants to litigate 
the right or title between themselves, and relieve him 
from liability or litigation. Superseded by Rule 22, 
"Interpleader," in those jurisdictions that have adopted 
Rules of Civil Procedure. See Interpleader. 
Bill of peace. One which is filed when a person has a 
right which may be controverted by various persons, at 
different times, and by different actions. 
Bill of review. Proceeding in equity brought for pur
pose of reversing or correcting prior judgment of trial 
court after such judgment has become final and is no 
longer appealable or subject to motion for new trial. 
Rogers v. Searle, Tex.Civ.App ., 533 S.W.2d 433, 437. It 
is in the nature of a writ of error. A "bill of review," 
or a bill in the nature of a bill of review, are of three 
classes; those for error appearing on the face of the 
record, those for newly discovered evidence, and those 
for fraud impeaching the original transaction. Such 
bills are peculiar to courts of equity. In states where 
Rules of Civil Procedure are applicable, such bill is 
replaced by motion for relief from judgment or order 
(Rule 60). 
Bill of revivor. One which is brought to continue a suit 
which has abated before its final consummation as, for 
example, by death, or marriage of a female plaintiff. 
Bill of revivor and supplement. One which is a com
pound of a supplemental bill and bill of revivor, and 
not only continues the suit, which has abated by the 
death of the plaintiff, or the like, but supplies any 
defects in the original bill arising from subsequent 
events, so as to entitle the party to relief on the whole 
merits of his case. 
Bill quia timet. A bill invoking the aid of equity 
"because he fears," that is, because the complainant 
apprehends an injury to his property rights or inter
ests, from the fault or neglect of another. Such bills 
are entertained to guard against possible or prospective 
injuries, and to preserve the means by which existing 
rights may be protected from future or contingent 
violations; differing from injunctions, in that the latter 
correct past and present or imminent and certain inju
ries. De Carli v. O'Brien, 150 Or. 35, 41 P.2d 411, 416. 
Bill to carry a decree into execution. One which is filed 
when, from the neglect of parties or some other cause, 
it may become impossible to carry a decree into execu
tion without the further decree of the court. 
Bill to perpetuate testimony. A bill in equity filed in 
order to procure the testimony of witnesses to be taken 
as to some matter not at the time before the courts, but 
which is likely at some future time to be in litigation. 
Superseded by Rule of Civil Procedure 27.

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167 
Bill to quiet possession and title. Also called a bill to 
remove a cloud on title (q.v.), and though sometimes 
classed with bills quia timet or for the cancellation of 
void instruments, they may be resorted to in other 
cases when the complainant's title is clear and there is 
a cloud to be removed. 
Bill to suspend a decree. One brought to avoid or 
suspend a decree under special circumstances. 
Bill to take testimony de bene esse. One which is 
brought to take the testimony of witnesses to a fact 
material to the prosecution of a suit at law which is 
actually commenced, where there is good cause to fear 
that the testimony may otherwise be lost before the 
time of trial. Superseded by Rule of Civil Procedure 
27. 
Cross-bill. One which is brought by a defendant in a 
suit against a plaintiff in or against other defendants in 
the same suit, or against both, touching the matters in 
question in the original bilL It is a bill brought by a 
defendant against a plaintiff, or other parties in a 
former bill depending, touching the matter in question 
in that bilL It is usually brought either to obtain a 
necessary discovery of facts in aid of the defense to the 
original bill, or to obtain full relief to all parties in 
reference to the matters of the original bilL It is to be 
treated as a mere auxiliary suit. A species of pleading, 
used for the purpose of obtaining a discovery necessary 
to the defense, or to obtain some relief founded on the 
collateral claims of the party defendant to the original 
suit. Such bill has been superseded by a cross-claim 
under Fed.R. Civil P. 13. Also, if a bill of exchange or 
promissory note be given in consideration of another 
bill or notice, it is called a "cross" or "counter" bill or 
note. 
Supplemental bill. A bill to bring before the court 
matters arising after the filing of the original bill or 
not then known to complainant. The function of this 
bill has been replaced by supplemental pleadings per
mitted under Fed.R. Civil P. 15. See Bill in nature of a 
supplemental bill, above. 
Legislation. The draft of a proposed law from the time 
of its introduction in a legislative body through all the 
various stages in both houses. Once introduced, a feder
al bill may be considered in any session of a Congress, 
but it dies at the end of a session, and it must be 
reintroduced as a new bill if a succeeding Congress is to 
consider it. The form of a proposed law before it is 
enacted into law by vote of the legislative body. An 
"Act" is the appropriate term for it after it has been 
acted on by, and passed by, the legislature. See also 
Marking up; Omnibus bill. 
Appropriations bill. Bill covering raising and expendi
ture of public funds. Federal appropriations bills mu�t 
originate in the House of Representatives. Art. I, Sec. 
7, U.S. Const. See also Appropriation bill. 
Au thorization bill. Bill authorizing expenditure of 
public funds. 
BILLETA 
Clean bill. Bill coming out of legislative committee in 
amended or redrafted form, making it essentially a new 
bill. 
Engrossed bill. Bill in final form, ready to be voted on 
by legislature. 
Enrolled bill. Bill that has been passed and forwarded 
to President or Governor for signature or veto. 
Private bill. One dealing only with a matter of private 
personal or local interest. All legislative bills which 
have for their object some particular or private interest 
are so termed, as distinguished from such as are for the 
benefit of the whole community, which are termed 
"public bills." 
Revenue bill. See Appropriations bill, above. 
Maritime law. 
Bill of adventure. A written certificate by a merchant 
or the master or owner of a ship, to the effect that the 
property and risk in goods shipped on the vessel in his 
own name belong to another person, to whom he is 
accountable for the proceeds alone. 
Bill of entry. Detailed statement by the importer of 
the nature and value of goods entered at the custom
house. Form filled out by importer for use of customs 
officer; describes goods, their value, etc. Permits goods 
to be unloaded from ship. 
Bill of health. An official certificate, given by the 
authorities of a port from which a vessel clears, to the 
master of the ship, showing the state of the port, as 
respects the public health, at the time of sailing, and 
exhibited to the authorities of the port which the vessel 
next makes, in token that she does not bring disease. 
If the bill alleges that no contagious or infectious 
disease existed, it is called a "clean" bill; if it admits 
that one was suspected or anticipated, or that one 
actually prevailed, it is called a "touched" or a "foul" 
bill. 
Bill of sight. Customhouse document, allowing a cosig
nee to see the goods before paying duties. 
Negotiable instruments. See Commercial paper, above. 
Billa Ibil;}/. L. Lat. A bill; an original bill. 
Billa cassetur, or quod billa cassetur I (kwod) bil;} 
k;}siyt;}r I. (That the bill be quashed.) The form of the 
judgment rendered for a defendant on a plea in abate
ment, where the proceeding is by bill; that is, where the 
suit is commenced by capias, and not by original writ. 
Billa excambii Ibil;} ekskrembiyay I. A bill of exchange. 
Billa exonerationis Ibila egzon;}reyshiy6wn;}s/. A bill 
of lading. 
Billa vera Ibil;} vir;} I . (A true bilL) The indorsement 
anciently made on a bill of indictment by a grand jury, 
when they found it sufficiently sustained by evidence. 
See In dictment. 
Billet. A soldier's quarters in a civilian's house; or the 
ticket which authorizes him to occupy them. 
Billeta Ibibt;}I . In old English law, a bill or petition 
exhibited in parliament.

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BILLING CYCLE 
Billing cycle. Period of time in which creditors regular-
ly submit bills to customers or debtors; e.g. 30 days. 
Bill of address. See Address. 
Bill of attainder. See Attainder; Bill (Criminal law). 
Bill of indemnity. A law under which a public official 
is protected from liability in performance of his official 
acts including his failure to take his official oath. An 
initial pleading by which the plaintiff seeks to require 
another (e.g., insurance company) to discharge his liabili
ty to a third person. 
In English law, an act of parliament, passed every 
session until 1869, but discontinued in and after that 
year, as having been rendered unnecessary by the pass
ing of the promissory oaths act, 1868, for the relief of 
those who had unwittingly or unavoidably neglected to 
take the necessary oaths, etc., required for the purpose 
of qualifying them to hold their respective offices. 
Bill of lading. Document evidencing receipt of goods for 
shipment issued by person engaged in business of trans
porting or forwarding goods and it includes airbill. 
U.C.C. § 1-201(6). An instrument in writing, signed by 
a carrier or his agent, describing the freight so as to 
identify it, stating the name of the consignor, the terms 
of the contract for carriage, and agreeing or directing 
that the freight be delivered to the order or assigns of a 
specified person at a specified place. It is receipt for 
goods, contract for their carriage, and is documentary 
evidence of title to goods. Schwalb v. Erie R. Co., 161 
Misc. 743, 293 N.Y.S. 842, 846. 
Bills in a set. A series of bills of lading each bearing a 
number and providing that a certain bill is valid only if 
goods have not been delivered against another bill. 
U.C.C. § 7-304. 
Clean bill. One which contains nothing in the margin 
qualifying the words of the bill of lading itself. Bank of 
America Nat. Trust & Sav. Ass'n v. Liberty Nat. Bank & 
Trust Co. of Oklahoma City, D.C.Okl., 116 F.Supp. 233, 
238, 239. 
Common law. In common law, the written evidence of a 
contract for the carriage and delivery of goods sent by 
sea for a certain freight. A written memorandum, given 
by the person in command of a merchant vessel, ac
knowledging the receipt on board the ship of certain 
specified goods, in good order or "apparent good order," 
which he undertakes, in consideration of the payment of 
freight, to deliver in like good order (dangers of the sea 
excepted) at a designated place to the consignee therein 
named or to his assigns. 
Foul bill. Bill of lading containing notation that goods 
received by carrier were defective. 
Negotiable bill. One which by its terms calls for goods 
to be delivered to bearer or to order of named persons, 
or where recognized in overseas trade, if it runs to 
named persons or assigns. U.C.C. § 7-104(1 )(a)(b). 
Non-neg otiable bill. Document of title in which goods 
are consigned to named persons. U.C.C. § 7-104(2). 
168 
Ocean bill. A negotiable bill of lading used in shipment 
by water. 
On board bill. Bill of lading which shows that loading 
has been completed. 
Order bill. One in which it is stated that goods are 
consigned to order of any person named therein. See 
Negotiable bill, above; also, Order bill of lading. 
Overseas bill. Where the contract contemplates over
seas shipment and contains a term C.I.F. or C. & F. or 
F.O.B. vessel, the seller unless otherwise agreed must 
obtain a negotiable bill of lading stating that the goods 
have been loaded on board or, in the case of a term 
C.I.F. or C. & F., received for shipment. U.C.C. 
§ 2-323(1). 
Straight bill. A nonnegotiable bill of lading that speci
fies a consignee to whom the goods are to be delivered
the carrier is contractually obligated to deliver the goods 
to that person only. 
Through bill. One by which a railroad contracts to 
transport over its own line for a certain distance car
loads of merchandise or stock, there to deliver the same 
to its connecting lines to be transported to the place of 
destination at a fixed rate per carload for the whole 
distance. Embodies undertaking to be performed in 
part by persons acting as agents for issuer. U.C.C. 
§ 7-302. 
Bill of lading acts. The principal acts governing bills of 
lading are Article 7 of the Uniform Commercial Code, 
the Federal Bills of Lading Act (49 U.S.C.A. §§ 81-124), 
and the Carmack Amendment to the Interstate Com
merce Act (49 U.S.C.A. § 20(11). See also Harter Act. 
Bill of mortality. A written statement or account of the 
number of deaths which have occurred in a certain 
district within a given time. 
Bill of pains and penalties. Statutory provision for 
punishment without judicial determination of guilt sim
ilar to bill of attainder except that punishment is less 
severe. Prohibited by U.S.C onst., Art. I, § 9, cl. 3 
(Congress), § 10 (States). 
Bill of rights. First ten Amendments to U.S. Constitu
tion providing for individual rights, freedoms, and pro
tections (see Appendix, infra). See also Bill; Patient's Bill 
of Rights. 
Bill quia timet Ibil kway� tim�t/. See Quia timet. 
Bi-metallic. Pertaining to, or consisting of, two metals 
used as money at a fixed relative value. 
Bi-metallism. The legalized use of two metals in the 
currency of a country at a fixed relative value e.g. 
copper and silver. 
Bind. To obligate; to bring or place under definite 
duties or legal obligations, particularly by a bond or 
,covenant. To affect one in a1constraining or compulsory 
manner with a contract or a judgment. So long as a 
contract, an adjudication, or a legal relation remains in 
force and virtue, and continues to impose duties or 
obligations, it is said to be "binding." A man is bound

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169 
by his contract or promise, by a judgment or decree 
against him, by his bond or covenant, by an estoppel, 
etc. 
Binder. A written memorandum of the important terms 
of contract of insurance which gives temporary protec
tion to insured pending investigation of risk by insur
ance company or until a formal policy is issued. Turner 
v. Worth Ins. Co., 106 Ariz. 132, 472 P.2d 1, 2. A receipt 
for earnest money or a deposit paid to secure the right 
to purchase real estate at terms that have been agreed 
upon by both buyer and seller. See also Binding receipt; 
Cover note. 
Binding agreement. A contract which is enforceable 
such as an offer to buy or sell when person to whom it is 
made accepts it and communicates his acceptance. 
McAden v. Craig, 222 N.C. 497, 24 S.E.2d 1, 3. See 
Contract. 
Binding authority. Sources of law that must be taken 
into account by a judge in deciding a case; for example, 
statutes or decisions by a higher court of the same state 
on point. See Precedent. 
Binding jury instruction. One in which jury is told 
that if they find certain conditions to be true, they 
should find for plaintiff or defendant, as case might be. 
Scott-Burr Stores Corporation v. Foster, 197 Ark. 232, 
122 S.W.2d 165, 169. See Jury instructions (Mandatory 
instruction). 
Binding over. The act by which a court or magistrate 
requires a person to enter into a recognizance or furnish 
bail to appear for trial, to keep the peace, to attend as a 
witness, etc. Also describes act of lower court in trans
ferring case to higher court or to grand jury after a 
finding of probable cause to believe that defendant com
mitted crime. 
Binding receipt or slip. Term refers to a limited ac
ceptance of an application for insurance given by an 
authorized agent pending the ascertainment of the com
pany's willingness to assume the burden of the proposed 
risk, the effect of which is to protect the applicant until 
the company acts upon the application, and, if it de
clines to accept the burden, the binding effect of the slip 
ceases eo instante. See Binder. 
Bind out. To place one under a legal obligation to serve 
another; as to bind out an apprentice. 
Bind over. See Binding over. 
Bipartite Ibaypartayt/. Consisting of, or divisible into, 
two parts. A term in conveyancing descriptive of an 
instrument in two parts, and executed by both parties. 
Birretum Ib;:)ret;:)ml birretus Ib;:)ret;:)sl. A cap or coif 
used formerly in England by judges and serjeants at law. 
Birth. The act of being born or wholly brought into 
separate existence. 
Birth certificate. A formal document which certifies as 
to the date and place of one's birth and a recitation of 
his or her parentage, as issued by an official in charge of 
BLACK ACRE AND WHITE ACRE 
such records. Furnishing of such is often required to 
prove one's age. See Birth record. 
Birth control. Prevention of conception. Term which 
embraces all forms of contraception. 
Birth record. Official statistical data concerning dates 
and places of persons' birth, as well as parentage, kept 
by local government officials. See Birth certificate. 
Bis Ibis I . Lat. Twice. 
Bisaile (also besaile, besayel, besaiel, besayle) 
Ibiseyl/. The father of one's grandfather or grandmoth
er. 
Bi-scot. In old English law, a fine imposed for not 
repairing banks, ditches, and causeways. 
Bis dat qui cito dat Ibis dret kway saytow dretl. He 
pays twice who pays promptly. 
Bishop. An ecclesiastical dignitary, being the chief of 
the clergy within his diocese, subject to the archbishop 
of the province in which his diocese is situated. 
Bishopric Ibish;:)prik/. In ecclesiastical law, the diocese 
of a bishop, or the circuit in which he has jurisdiction; 
the office of a bishop. 1 Bl.Comm. 377-382. 
Bishop's court. In English law, an ecclesiastical court, 
held in the cathedral of each diocese, the judge whereof 
is the bishop's chancellor, who judges by the civil canon 
law; and, if the diocese be large, he has his commissar
ies in remote parts, who hold consistory courts, for 
matters limited to them by their commission. 
Bis idem exigi bona fides non patitur; et in satisfac
tionibus non permittitur amplius fieri quam semel 
factum est Ibis ayd;:)m egz;:)jay bown;:) faydiyz non 
paet;:)t;:)r; et in sret;:)sfrekshiyown;:)b;:)s non p;:)rmit;:)t;:)r 
rempliy;:)s fay;:)ray kwam sem;:)l frekt;:)m est/. Good faith 
does not suffer the same thing to be demanded twice; 
and in making satisfaction [for a debt or demand] it is 
not allowed to be done more than once. 
Bissextile Ibaysekstayl/. The day which is added every 
fourth year (leap-year) to the month of February, in 
order to make the year agree with the course of the sun. 
Biting rule. When first taker of conveyed property 
under writing submitted for construction is initially 
conveyed a fee title, it is then incompetent and invalid 
to modify, qualify, or reduce thereafter the apparent fee 
title of the first taker so as to reduce it to a life estate, 
and any gift over after death of first taker is void. 
Bivens action. Name for type of action (derived from 
Bivens v. Six Unknown Named Defendants, 403 U.s. 
388, 91 S.Ct. 1999) for damages to vindicate constitution
al right when federal government official has violated 
such right. Action is available if no equally effective 
remedy is available, no explicit congressional declara
tion precludes recovery, and no "special factors counsel 
hesitation." Rauschenberg v. Williamson, C.A.Ga., 785 
F.2d 985, 987. 
Black acre and white acre. Fictitious names used by 
the old writers to distinguish one parcel of land from

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BLACK ACRE AND WHITE ACRE 
another, to avoid ambiguity, as well as the inconven
ience of a fuller description. 
Black Act. The English statute 9 Geo. I, c. 22, so called 
because it was occasioned by the outrages committed by 
persons with their faces blacked or otherwise disguised, 
who appeared in Epping Forest, near Waltham, in Es
sex, and destroyed the deer there, and committed other 
offenses. Repealed by 7 & 8 Geo. IV, c. 27. 
Black Book of the Admiralty. An English book of the 
highest authority in admiralty matters, generally sup
posed to have been compiled during the reign of Edward 
III. with additions of a later date. It contains the laws 
of Oleron, a view of crimes and offenses cognizable in 
the admiralty, and many other matters. 
Black Book of the Exchequer. The name of an ancient 
book kept in the English exchequer, containing a collec
tion of treaties, conventions, charters, etc. 
Black cap. In England, the head-dress worn by the 
judge in pronouncing the sentence of death. It is part of 
the judicial full dress, and is worn by the judges on 
occasions of especial state. 
Black code. A name given collectively to the body of 
laws, statutes, and rules in force in various southern 
states prior to 1865, which regulated the institution of 
slavery, and particularly those forbidding their recep
tion at public inns and on public conveyances. Civil 
Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. 
Blackjack. A short bludgeon consisting of a heavy head, 
as of metal, on an elastic shaft or with a flexible handle; 
a bludgeon-like weapon consisting of a lead slug at
tached to a leather thong; a small leather-covered club 
or billy weighted at the head and having an elastic 
shaft. 
As a card game, another name for vingt-et- un (twenty
one); also, a variety of hearts in which the jack of 
spades counts as ten hearts. 
Blackleg. A person who makes his living by frequenting 
race-courses and places where games of chance are 
played, getting the best odds, and giving the least he 
can, but not necessarily cheating. 
Black letter law. An informal term indicating the basic 
principles of law generally accepted by the courts 
and/ or embodied in the statutes of a particular jurisdic
tion. 
Blacklist. A list of persons marked out for special 
avoidance, antagonism, or enmity on the part of those 
who prepare the list or those among whom it is intended 
to circulate; as where a trades-union "blacklists" work
men who refuse to conform to its rules, or where a list of 
insolvent or untrustworthy persons is published by a 
commercial agency or mercantile association. Such 
practices are prohibited by statute in most states. 
Black Lung Benefits Act. Federal statute benefitting 
coal miners who are stricken with pneumoconiosis, a 
chronic dust disease of the lung. 30 U.S.C.A. § 902. 
Benefits under the Act are administered by the Depart
ment of Labor. 
170 
Blackmail. Unlawful demand of money or property 
under threat to do bodily harm, to injure property, to 
accuse of crime, or to expose disgraceful defects. This 
crime is commonly included under extortion or criminal 
coercion statutes. See Model Penal Code § 212.5. See 
also Extortion; Shakedown. 
In one of its original meanings, this term denoted a 
tribute paid by English dwellers along the Scottish bor
der to influential chieftains of Scotland, as a condition of 
securing immunity from raids of marauders and border 
thieves. Also, rents payable in cattle, grain, work, and 
the like. Such rents were called "blackmail" (reditus 
nigri), in distinction from white rents (blanche firmes), 
which were rents paid in silver. See Black rents. 
Black maria. A closed vehicle or van in which prisoners 
are carried to and from the jail, or between the court 
and the jail. 
Black market. Illegal trading; buying and selling goods 
which are subject to government rationing or control, 
including goods which are contraband. See also Gray 
market goods. 
Black Muslim. An organization of American Negroes, 
founded in Detroit in 1930 by an American Negro call
ing himself Mohammad Elijah. To the traditional Ko
ran the founders added the doctrine of Black Supremacy 
and proclaimed the desirability of maintaining (or re
gaining) the purity of the black race. 
Black rents. In old English law, rents reserved in work, 
grain, provisions, or baser money than silver, in contra
distinction to those which were reserved in white money 
or silver, which were termed "white rents" (reditus albi), 
or blanch farms. See Blackmail. 
Black-Rod, Gentleman Usher of. In England, the title 
of a chief officer of the king, deriving his name from the 
Black Rod of office, on the top of which reposes a golden 
lion, which he carries. During the session of Parliament 
he attends on the peers, summons the Commons to the 
House of Lords; and to his custody all peers impeached 
for any crime or contempt are first committed. 
Black ward. A subvassal, who held ward of the king's 
vassal. 
Blada /bleyd;}/. In old English law, growing crops of 
grain of any kind; all manner of annual grain; harvest
ed grain. 
Bladarius /bbderiy;}s/. In old English law, a cornmon
ger; meal-man or corn-chandler; a bladier, or engrosser 
of corn or grain. 
Blanche firme. White rent; a rent reserved, payable in 
silver. 
Blanc seign. In Louisiana, a paper signed at the bottom 
by him who intends to bind himself, give acquittance, or 
compromise, at the discretion of the person whom he 
intrusts with such blanc seign, giving him power to fill it 
with what he may think proper, according to agreement. 
Blank. A space left unfilled in a written document, in 
which one or more words or marks are to be inserted to 
complete the sense. Also a skeleton or printed form for

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any legal document, in which the necessary and invaria
ble words are printed in their proper order, with blank 
spaces left for the insertion of such names, dates, fig
ures, additional clauses, etc., as may be necessary to 
adapt the instrument to the particular case and to the 
design of the party using it. 
Blank acceptance. An acceptance of a bill of exchange 
written on the paper before the bill is made, and deliv
ered by the acceptor. 
Blank bar. Also called the "common bar." The name 
of a plea in bar which in an action of trespass was put in 
to oblige the plaintiff to assign the certain place where 
the trespass was committed. It was most in practice in 
the common bench. 
Blank bill. Bill of exchange with payee's name left 
blank. 
Blanket bond. Generic term which may describe a bond 
covering a number of projects on which performance 
bonds are required or a bond to dissolve more than one 
attachment. Any bond used for mUltiple purposes. 
Blanket insurance. See Ins urance. 
Blanket mortgage. Covers two or more assets or prop
erties which are pledged to support the given debt. 
A bond issue that is backed by all of the firm's real 
property. 
Blanket policy. See Insur ance. 
Blanket rate. Insurance rate applied when there is 
more than one property or subject of insurance. 
Blanket search warrant. A single warrant authorizing 
the search of more than one area or the seizure of 
everything found at a given location without specific 
authorization in the warrant, the latter being in viola
tion of the requirements of the Fourth Amendment to 
U.S. Const. Marcus v. Search Warrants etc., 367 U.S. 
717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. 
Blank indorsement. The indorsement of a bill of ex
change or promissory note, by merely writing the name 
of the indorser, without mentioning any person to whom 
the bill or note is to be paid; called "blank," because a 
blank or space is left over it for the insertion of the 
name of the indorsee, or of any subsequent holder. 
Otherwise called an indorsement "in blank." Such in
dorsement causes an instrument, otherwise payable to 
order, to become payable to bearer and negotiable by 
delivery alone. U.C.C. § 3-204( 2). With respect to a 
document of title, the signature of a person to whom the 
document runs in which the signer specifies no particu
lar person to whom the goods should be delivered. See 
U.C.C. § 7-50 1(1). 
Blanks. A kind of white money (value 8d.), coined by 
Henry V in those parts of France which were then 
subject to England; forbidden to be current in that 
realm by 2 Hen. VI, c. 9. 
Blank shares. "Series shares" which may vary in the 
relative rights and preferences as between different ser
ies but which may be fixed in articles of incorporation. 
BLOCK 
Blasphemy /blresf�miy / . Any oral or written reproach 
maliciously cast upon God, His name, attributes, or 
religion. In general, blasphemy may be described as 
consisting in speaking evil of the Deity with an impious 
purpose to derogate from the divine majesty, and to 
alienate the minds of others from the love and reverence 
of God. It is purposely using words concerning God 
calculated and designed to impair and destroy the rev
erence, respect, and confidence due to Him as the intelli
gent creator, governor, and judge of the world. It em
braces the idea of detraction, when used towards the 
Supreme Being, as "calumny" usually carries the same 
idea when applied to an individual. It is a willful and 
malicious attempt to lessen men's reverence of God by 
denying His existence, or His attributes as an intelligent 
creator, governor, and judge of men, and to prevent 
their having confidence in Him as such. While blasphe
my statutes still exist in certain states, such seldom, if 
ever, are enforced. 
In English law, blasphemy is the offense of speaking 
matter relating to God, Jesus Christ, the Bible, or the 
Book of Common Prayer, intended to wound the feelings 
of mankind or to excite contempt and hatred against the 
church by law established, or to promote immorality. 
Blended fund. In England, where a testator directs his 
real and personal estate to be sold, and disposes of the 
proceeds as forming one aggregate, this is called a 
"blended fund." 
Blended price. As applied to milk, a price paid to 
producers based upon a pool average weighted by the 
volume of milk disposed of, according to different types 
of utilization. Queensboro Farm Products v. State, 175 
Misc. 574, 24 N.Y.S.2d 413, 417. 
Blind alley. Literally, a way from which exit is possible 
only by retracing the path of entry; a dead end; fig., a 
no-win position, a dilemma. 
Blind corner. Used to describe the configuration of 
buildings or other structures which prevent a driver 
approaching an intersection from being able to observe 
traffic coming in the direction of the intersecting way. 
Blindcraft. A natural descriptive term identifying in a 
broad sense work of the blind, conveying the idea of the 
blind performing deftly at any of the various skills or 
trades to which their talents are applied or leaving the 
suggestion of dexterity and skill of the blind as well as 
their handiwork itself. San Francisco Ass'n for Blind v. 
Industrial Aid for Blind, D.C.Mo., 58 F.Supp. 995, 1001. 
Blindness. Condition of one who is without sight either 
wholly or partially. Degrees are recognized for purpose 
of workers' compensation and social security benefits. 
Blind selling. Selling goods without giving buyer oppor
tunity to examine such. 
Blind tiger. A place where intoxicants are sold on the 
sly, and contrary to the law. A "tippling-house." 
Blind trust. See Trust. 
Block. A square or portion of a city or town inclosed by 
streets, whether partially or wholly occupied by build-

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BLOCK 
ings or containing only vacant lots. Also used synon
ymously with "square." The platted portion of a city 
surrounded by streets. The term need not, however, be 
limited to blocks platted as such, but may mean an area 
bounded on all sides by streets or avenues. St. Louis
San Francisco R. Co. v. City of Tulsa, Okl., C.C.A.Okl., 
15 F.2d 960, 963. It must be surrounded on at least 
three sides by streets, which must be marked on the 
ground, and not simply indicated as such on a plat. See 
also Lot. 
Large amount of stock or bonds sold as a unit in a 
single trade. 
Blockade. Action taken against enemy nation so as to 
isolate, obstruct and prevent communications, com
merce, supplies, and persons from entering into or leav
ing such nation. Such blockades may be by sea, or land, 
or both. 
Blockage. Recognition in the field of taxation of fact 
that in some instances a large block of stock cannot be 
marketed and turned into cash as readily as a few 
shares. Citizens Fidelity Bank & Trust Co. v. Reeves, 
Ky., 259 S.W.2d 432, 433. The discount at which a large 
block of stock sells below the price of a smaller block is 
blockage. It is generally a phenomenon of shares which 
do not represent the controlling interest in a corpora
tion. See Blockage rule. 
Blockage rule. Process of determining value of large 
blocks of corporate stock for gift and estate tax purposes, 
based on the postulate that a large block of stock cannot 
be marketed as readily and as advantageously in price 
as can a few shares. Montclair Trust Co. v. Zink, 
Prerog., 141 N.J.Eq. 401, 57 A.2d 372, 376, 380. Applica
tion of this rule generally justifies a discount in the fair 
market value since the disposition of a large amount of 
stock at any one time may well depress the value of such 
shares in the market place. 
Block-booking. The practice of licensing or offering for 
license one motion picture feature or group of features 
on condition that exhibitor will also license another 
feature or group of features released by distributor dur
ing a given period. U. S. v. Paramount Pictures, N. Y., 
334 U.S. 131, 68 S.Ct. 915, 928, 92 L.Ed. 1260. 
Block book system. An abstract of property assessed 
for taxes and also of property unrendered and of which 
owners were unknown, together with maps and plats. 
Southern Surety Co. v. Lafferty, Tex.Civ.App., 43 S.W.2d 
460, 463. 
Blockburger test. This doctrine (derived from Block
burger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 
L.Ed. 306) provides that where same act constitutes a 
violation of two distinct statutory provisions, act will 
nevertheless be treated as one offense unless each provi
sion requires proof of fact that the other does not. U.S. 
v. Allen, D.C.Cal., 539 F.Supp. 296, 304. It is a rule of 
statutory construction giving rise to a presumption 
against multiple punishment where its application re
sults in a determination that the conduct is one offense. 
U.S. v. Woodward, C.A.Cal., 726 F.2d 1320, 1325. 
172 
Blockbusting. As used in connection with statute pro
hibiting such practice, is the practice of inducing owners 
of property to sell because of actual or rumored advent 
into the neighborhood of a member of a racial, religious 
or ethnic group. State v. Wagner, 15 Md.App. 413, 291 
A.2d 161, 164. 
Blocked account. Governmental restrictions on a bank 
account; usually with reference to transfers to foreign 
countries. 
Blocked currency. Restrictions on use of currency and 
bank deposits (normally with respect to transfer to other 
countries) by the government where the currency or 
deposits are located. 
Blocked income. Income earned by foreign taxpayer 
which is not subject to tax in U.S. because taxpayer is 
precluded in foreign country from making conversion of 
foreign earned income to dollars. 
Block of surveys. In Pennsylvania land law, any con
siderable body of contiguous tracts surveyed in the name 
of the same warrantee, without regard to the manner in 
which they were originally located; a body of contiguous 
tracts located by exterior lines, but not separated from 
each other by interior lines. 
Block policy. Insurance policy covering all the property 
of the insured against most perils. 
Block to block rule. The "block to block rule" for 
assessing the benefits for the opening of a new street is 
the assessment against the lots in each block of the cost 
of acquiring the lands in that block. In re St. Raymona 
Ave. in City of New York, 175 App.Div. 518, 162 N.Y.S. 
185, 188. 
Blood alcohol count. Refers to the standard measure 
for legal intoxication under state DWI laws. In most 
states, a person can be charged with "driving while 
intoxicated" with a blood alcohol level of .1 0 percent or 
higher. See Breathalyzer test; Driving while intoxicated 
(OWl) . 
Blood feud. Avenging the killing of kin on the person 
who killed him, or on his family. 
Blood grouping test. Test used in paternity and illegit
imacy cases to determine whether one could be father of 
child. The test does not affirmatively establish paterni
ty but it eliminates one who cannot be adjudicated 
father. See also Blood test evidence; DNA identification. 
Bloodhounds. Dogs remarkable for their sense of smell 
and ability to follow a scent or track a human being. 
Blood money. A weregild, or pecuniary mulct paid by a 
slayer to the relatives of his victim. Also used, in a 
popular sense, as descriptive of money paid by way of 
reward for the apprehension and conviction of a person 
charged with a capital crime. 
Blood relations. Kindred; consanguinity; family rela
tionship; relation by descent from a common blood 
ancestor. A person may be said to be "of the blood" of 
another who has any, however small a portion, of the 
blood derived from a common ancestor, thus including 
half blood as well as whole blood. All persons are of the

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blood of an ancestor who may, in the absence of other 
and nearer heirs, take by descent from that ancestor. 
See also Relation. 
' 
Half-blood. A term denoting the degree of relationship 
which exists between those who have the same father or 
the same mother, but not both parents in common. 
Mixed blood. A person is "of mixed blood" who is 
descended from ancestors of different races or nationali
ties; but particularly, in the United States, the term 
denotes a person one of whose parents (or more remote 
ancestors) was a negro. U. S. v. First Nat. Bank of 
Detroit, Minn., 234 U.S. 245, 34 S.Ct. 846, 848, 58 L.Ed. 
1298. 
Whole blood. Kinship by descent from the same father 
and mother; as distinguished from half blood, which is 
the relationship of those who have one parent in com
mon, but not both. 
Blood test evidence. Blood may be extracted against 
will of person without offense to Fifth Amendment, U.S. 
Constitution when arrested for driving while intoxicat
ed. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 
16 L.Ed.2d 908. See also Blood alcohol count; Blood 
grouping test; DNA identification. 
Bloodwit. An amercement for bloodshed. The privilege 
of taking such amercements. A privilege or exemption 
from paying a fine or amercement assessed for 
bloodshed. 
Bloody hand. In forest law, evidence of bloody hands or 
other parts of the body was one of the four kinds of 
circumstantial evidence of his having illegally killed 
deer, although he was not found in the act of chasing or 
hunting. 
Blotter. See Bench blotter. 
BLS. Bachelor of Library Science; Bureau of Labor 
Statistics. 
Bludgeon. A heavy club or stick used as a weapon, 
commonly weighted in one end by metal. As a verb, 
used to inflict injury by use of it. State v. Witcher, 58 
N.J.Super. 464, 156 A.2d 709, 713. 
Blue chip investment. Highest quality stock or bond of 
company with long record of profit growth, minimum 
risk and satisfactory income or yield; commonly re
quired by trust managers. 
Blue laws. Statutes regulating entertainment activities, 
work, and commerce on Sundays. Such laws have their 
origin in colonial New England. 
Blue list. Daily listing (on blue paper) of municipal bond 
offerings. 
Blue notes. Notes accepted by a life insurance company 
for the amount of premiums on the policy, which pro
vide for the continuance of the policy in force until the 
due date of the notes. 
Blue Pencil Doctrine. This doctrine holds that if courts 
can render an unreasonable restraint reasonable by 
scratching out the offensive portions of the covenant, 
they should do so and then enforce the remainder. 
BOARD 
Traditionally, the doctrine is applicable only if the cove
nant in question is applicable, so that the unreasonable 
portions may be separated. E.P.I. of Cleveland, Inc. v. 
Basler, 12 Ohio App.2d 16, 230 N.E.2d 552, 556. 
Blue ribbon jury. Jury consisting of highly qualified 
persons. 
Blue sky laws. A popular name for state statutes 
providing for the regulation and supervision of securities 
offerings and sales, for the protection of citizen-investors 
from investing in fraudulent companies. Most blue sky 
laws require the registration of new issues of securities 
with a state agency that reviews selling documents for 
accuracy and completeness. Blue sky laws also often 
regulate securities brokers and salesmen. 
A statute called a "Blue Sky Law" because it pertains 
to speCUlative schemes which have no more basis than 
so many feet of blue sky. State v. Cushing, 137 Me. 112, 
15 A.2d 740. 
Bluff. A high, steep bank, as by a river, the sea, a 
ravine, or a plain, or a bank or headland with a broad, 
steep face. To deceive by pretense or appearance of 
strength. 
Blumba. A certifying metal tag attached to kosher 
meat. People on Complaint of Waller v. Jacob 
Branfman & Son, 147 Misc. 290, 263 N.Y.S. 629, 632. 
Blunder. As applied in cases of ordinary negligence is 
the want of or absence of ordinary care, a failure to do 
what should have been done or the doing of that which 
should not have been done, resulting in the happening 
of an event or injury which could have and should have 
been foreseen and avoided by use of such care as a 
reasonably prudent person would have exercised under 
the same or similar circumstances. Loyd v. Pierce, 
Tex.Civ.App ., 89 S.W.2d 1035, 1038. 
Blunderbuss. A firearm intended to shoot objects at 
close quarters, without exact aim. 
Board. An official or representative body organized to 
perform a trust or to execute official or representative 
functions or having the management of a public office or 
department exercising administrative or governmental 
functions. Commissioners of State Ins. Fund v. Dinow
itz, 179 Misc. 278, 39 N.Y.S.2d 34, 38. 
A committee of persons organized under authority of 
law in order to exercise certain authorities, have over
sight or control of certain matters, or discharge certain 
functions of a magisterial, representative, or fiduciary 
character. Thus, "board of aldermen," "board of 
health," "board of directors," "board of works." 
Group of persons with managerial, supervisory, or 
investigatory functions and power. See types of such 
boards, infra. 
Lodging, food, and entertainment, furnished to a guest 
at an inn or boarding house. As a verb, means to 
receive food for a reasonable compensation, either with 
or without lodging. Jackson v. Engert, 453 S.W.2d 615, 
618.

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BOARD 
When used with reference to prisoners, as a basis for 
the sheriffs fee, board may be equivalent to "necessary 
food." 
Boarder. One that is provided with regular meals, with 
or without lodging, usually under an express contract. 
Jackson v. Engert, 453 S.W.2d 615, 618. 
Board lot. Unit of trade on a stock exchange. 
Board of adjustment. Public and quasi judicial agency 
charged with duty to hear and determine zoning ap
peals. Also called "Board of Zoning Appeals" in certain 
cities. 
Board of aldermen. The governing body of a municipal 
corporation. See Aldermen. 
Board of appeals. A non- judicial, administrative tribu
nal which reviews the decision made by the hearing 
officer or by the head of the agency. See also Board of 
review. 
Board of audit. A tribunal provided by statute in some 
states, to adjust and settle the accounts of municipal 
corporations. 
Board of bar overseers. State board which governs 
licensing and discipline of attorneys. 
Board of directors. The governing body of a corpora
tion elected by the stockholders; usually made-up of 
officers of the corporation and outside (non-company) 
directors. The board is empowered to elect and appoint 
officers and agents to act on behalf of the corporation, 
declare dividends, and act on other major matters affect
ing the corporation. See e.g. Rev.Model Bus.Corp.Act, 
§ 8.01 et seq. See also Directors; Outside director. 
Staggered board. A corporation's board of directors in 
which a fraction of the board is elected each year. In 
staggered boards, members serve two or three years, 
depending on whether the board is classified into two or 
three groups. 
Board of education. A state or local agency or board 
organized for government and management of schools in 
state or municipality. The agency to which state del
egates power and duty of controlling schools in school 
district. See also School (School board or committee). 
Board of equalization. See Equalization. 
Board of examine rs. A state agency or board appointed 
to examine the qualifications of applicants for license to 
practice a trade or profession. 
Board of fire underwriters. Unincorporated voluntary 
associations composed exclusively of persons engaged in 
business of fire insurance, for consolidation and co-oper
ation in matters affecting the business. 
Board of Governors of Federal Reserve System. Sev
en member board, with fourteen year terms, which 
governs the twelve Federal Reserve Banks and branch
es. The Board of Governors determines general mone
tary, credit, and operating policies for the System as a 
whole and formulates the rules and regulations neces
sary to carry out the purposes of the Federal Reserve 
Act. The Board's principal duties consist of exerting an 
174 
influence over credit conditions and supervising the 
Federal Reserve Banks and member banks. 
Board of health. A municipal or state board or commis
sion with certain powers and duties relative to preserva
tion and improvement of the public health. 
Board of Immigration Appeals. Quasi-judicial agency 
within the Department of Justice (accountable to Attor
ney General) which hears appeals from certain decisions 
of the Immigration and Naturalization Service and re
views actions of the Commissioner of Immigration and 
Naturalization in deporting and excluding aliens. Most 
appeals to the Board are from immigration judges' deci
sions on deportation and exclusion. 
Board of pardons. State board, of which the governor 
is usually a member, authorized to review and grant 
pardons and clemency to convicted prisoners. 
Board of Parole. See Parole board. 
Board of Patent Appeals and Interferences. Former
ly known as the Board of Patent Appeals; consists of 
Commissioner of Patents, the Deputy Commissioner, the 
Assistant Commissioners, and the examiners-in-chief 
whose responsibility is to review adverse decisions of 
examiners upon applications for patents and to deter
mine priority and patentability of invention in interfer
ences. 35 U.S.C.A. § 7. 
Board of regents. A body of officials appointed to direct 
and supervise an educational institution or, in some 
states, the educational system of a State. 
Board of registration. State boards governing licensing 
and discipline of professions and quasi-professions in 
state. 
Board of review. Board authorized to review adminis
trative agency decisions and rulings. Body authorized 
to review alleged improper valuation and assessment of 
property. In some cities, a board charged with responsi
bility to review alleged police brutality or excessive 
force. See also Board of appeals. 
Board of supervisors. An organized committee, or body 
of officials, constituting part of the county government, 
with special charge of the county revenues. 
Board of Tax Appeals. The Board of Tax Appeals was 
a trial court that considered Federal tax matters. This 
Court is now designated as the U.S. Tax Court. 
Board of trade. An organization of merchants, manu
facturers, etc., for furthering its commercial interests, 
advancing its prosperity, etc. Also an organization for 
the advancement and protection of a particular trade or 
line of commerce. 
An exchange or association engaged in the business of 
buying or selling commodities; e.g. Chicago Board of 
Trade. 
Boatable. A term applied in some states to minor rivers 
and streams capable of being navigated in small boats, 
skiffs, or launches, though not by steam or sailing ves
sels. See also Navigable.

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175 
Boatswain Ib6ws:m /. A seaman who superintends the 
work of the crew. The foreman of sailors. 
Bobbies. English name for policemen. 
Bobtail driver. A person collecting and delivering laun
dry without being subject to complete control of employ
er. Ring v. City Dry Cleaners, 152 Fla. 622, 12 So.2d 
593, 594. 
Bobtails. Persons who conduct stores or establishments 
of their own where patrons may bring articles to be 
laundered. Schwartz v. Laundry & Linen Supply Driv
ers' Union, Local 187, 339 Pa. 353, 14 A.2d 438, 439. 
Boc Ibuk/. In Saxon law, a book or writing; a deed or 
charter. Boc land, deed or charter land. Land boc, a 
writing for conveying land; a deed or charter; a land
book. The land bocs, or evidences of title, corresponding 
to modern deeds, were destroyed by William the Con
queror. 
Boceras. Sax. A scribe, notary, or chancellor among 
the Saxons. 
Boc horde Ibuk-ho rd/. A place where books, writings, 
or evidences were kept, generally in monasteries. 
Boc land. In Saxon law, allodial lands held by deed or 
other written evidence of title. 
Bodily. Pertaining to or concerning the body; of or 
belonging to the body or the physical constitution; not 
mental but corporeal. Provident Life & Accident Ins. 
Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d 296. 
Bodily condition. Status of human body at a given 
point in time as contrasted with state of mind. 
Bodily exhibition. Public or semi public showing of 
private parts of body's anatomy; used in statutes cover
ing obscenity and crimes against public decency; e.g. 
indecent exposure. 
Bodily harm. See Bodily injury, below. 
Bodily heirs. Heirs begotten or borne by the person 
referred to; lineal descendants. Progeny or issue, in
cluding children, grandchildren, and other lineal de
scendants. See Heir of the body. 
Bodily infirmity. A settled disease or ailment that 
would probably result to some degree in general impair
ment of physical health and vigor. Travelers' Ins. Co. of 
Hartford, Conn., v. Byers, 123 Cal.App. 473, 11 P.2d 444, 
446. An ailment or disorder of an established and 
settled character. Something that amounts to inroad on 
physical health or impairment of bodily or mental pow
ers. See also Disability. 
Bodily in jury. Generally refers only to injury to the 
body, or to sickness or disease contracted by the injured 
as a result of injury; including illness caused by nervous 
shock or injury resulting from rape or attempted rape. 
See also Disabili ty; Injury; Serious bodily injury. 
Body. A person. Used of a natural body, or of an 
artificial one created by law, as a corporation. Body in 
the broad sense is the main central or principal part of 
BOILERPLATE 
anything as distinguished from subordinate parts. Wal
berg v. Probst, Cust. & Pat.App., 474 F.2d 683, 687. 
The main part of the human body; the trunk. The 
term however has also been held to embrace all mem
bers of the person, including the head and limbs. 
Also the main part of an instrument. In deeds it is 
spoken of as distinguished from the recitals and other 
introductory parts and signatures; in affidavits, from 
the title and jurat. 
A collection of laws; that is, the embodiment of the 
laws in one connected statement or collection, called a 
"body of laws" (q.v.). 
See also Corpus. 
Body corporate. A public or private corporation. 
Body execution. Seizure of person by order of court to 
e.g. enforce judgment for payment of money. See Capias 
(Capias ad satisfaciendum). 
Body heirs. See Bodily (Bodily heirs); Heir of the body. 
Body of a county. A county at large, as distinguished 
from any particular place within it. A county con
sidered as a territorial whole. State v. Arthur, 39 Iowa 
631; People v. Dunn, 31 App.Div. 139, 52 N.Y.S. 968. 
Body of an instrument. The main and operative part; 
the substantive provisions, as distinguished from the 
recitals, title, jurat, etc. 
Body of laws. An organized and systematic collection 
or codification of laws; e.g. United States Code; Califor
nia Code. 
Body of the offense (or crime). When applied to any 
particular offense, means that the particular crime 
charged has actually been committed by some one. Bar
rett v. State, 57 Okl.Cr. 259, 47 P.2d 613, 617. The 
corpus delicti (q.v.). 
Body politic or corporate. A social compact by which 
the whole people covenants with each citizen, and each 
citizen with the whole people, that all shall be governed 
by certain laws for the common good. Uricich v. Kole
sar, 54 Ohio App. 309, 7 N.E.2d 413, 414. Also a term 
applied to a municipal corporation, school district, coun
ty or city. State or nation or public associations. Utah 
State Building Commission, for Use and Benefit of 
Mountain States Supply Co., v. Great American Indem
nity Co., 105 Utah 11, 140 P.2d 763, 767. 
Bogus Ib6wg;}s/. Counterfeit; sham; imitation; as e.g. 
bogus money. 
Bogus check. A check given by person upon bank in 
which he has no funds and which he has no reason to 
suppose will be honored. State v. Culver, 103 Ariz. 505, 
446 P.2d 234, 236. Such act is a misdemeanor in most 
states. See also Bad check; Check kiting. 
Boilerplate. Language which is used commonly in doc
uments having a definite meaning in the same context 
without variation; used to describe standard language 
in a legal document that is identical in instruments of a 
like nature. In re Pfaffs Estate, 41 Wis.2d 159, 163 
N.W.2d 140. See also Adhesion contract.

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BOILER-ROOM TRANSACTION 
Boiler-room transaction. High-pressure selling of 
stocks, precious metals, commodities, and other invest
ments of doubtful value, usually over the telephone. 
Sometimes associated with sales of "hot-issue" securi
ties. 
Bolita tickets. Form of ticket used in game of Bolita 
which is a type of lottery, the winning number of which 
is determined by an event unconnected with the actual 
lottery such as a horse race. U. S. v. Robertson, C.A. 
Fla., 504 F.2d 289. 
Bolito. A form of "lottery" which is a scheme for distri
bution of prizes by lot or chance. Robb v. State, Ind., 
239 N .E.2d 154, 157. 
Bolstering. In evidence law, occurs when one item of 
evidence is improperly used by a party to add credence 
or weight to some earlier unimpeached piece of evidence 
offered by the same party. Sledge v. State, Tex.Cr.App., 
686 S.W.2d 127, 129. 
Bolting. In English practice, a term formerly used in 
the English inns of court, but more particularly at 
Gray's Inn, signifying the private arguing of cases, as 
distinguished from mooting, which was a more formal 
and public mode of argument. 
Bon. The name of a clause (bon pour , good 
for so much) added to a cedule or promise, where it is 
not in the handwriting of the signer, containing the 
amount of the sum which he obliges himself to pay. 
Bona, n. Ib6wn�/. Lat. Goods; property; possessions. 
In the Roman law, this term was used to designate all 
species of property, real, personal, and mixed, but was 
more strictly applied to real estate. In civil law, it 
includes both personal property (technically so called) 
and chattels real, thus corresponding to the French 
biens (q.v.). In the common law, its use was confined to 
the description of movable goods. 
Bona confiscata Ib6wn� konf�skeyt�/. Goods confiscat
ed or forfeited to the imperial fisc or treasury. 1 Bl. 
Comm. 299. 
Bona et catalla Ib6wn� et k�trel�/. Goods and chattles; 
movable property. This expression includes all personal 
things that belong to a man. 
Bona felonum Ib6wn� f�lown�m/. In English law, goods 
of felons; the goods of one convicted of felony. 
Bona forisfacta Ib6wn� fOr�sfrekt�/. Goods forfeited. 
Bona fugitivorum Ib6wn� fyUwj�t�v6r�m/. In English 
law, goods of fugitives; the proper goods of him who flies 
for felony. 
Bona immobilia Ib6wn� im�biliy�/. Lands. 
Bona mobilia Ib6wn� m�biliy�1 . Movables; those 
things which move themselves or can be transported 
from one place to another, and not permanently at
tached to a farm, heritage, or building. 
Bona notabilia Ib6wn� nowt�biliy�/. Notable goods; 
property worthy of notice, or of sufficient value to be 
accounted for. 2 Bl.Comm. 509. 
176 
Bona paraphernalia Ib6wn� prer�f�rneyl(i)y�/. In the 
civil law, the separate property of a married woman 
other than that which is included in her dowry; more 
particularly, her clothing, jewels, and ornaments. Whi
ton v. Snyder, 88 N.Y. 303. 
Bona peritura Ib6wn� pehr�t(y)ur�/. Goods of a perish
able nature; such goods as an executor or trustee must 
use diligence in disposing of and converting them into 
money. 
Bona utlagatorum Ib6wn� �tleyg�t6r�m/. Goods of out
laws; goods belonging to persons outlawed. 
Bona vacantia Ib6wn� v�krensh(iy)�/. Vacant, un
claimed, or stray goods. Those things in which nobody 
claims a property, and which belonged, under the com
mon law, to the finder, except in certain instances, when 
they were the property of the king. 1 Bl.Comm. 298. 
Bona waviata Ib6wn� weyviyeyt�/. In English law, 
waived goods; goods stolen and waived, that is, thrown 
away by the thief in his flight, for fear of being ap
prehended, or to facilitate his escape; and which go to 
the sovereign. 1 Bl.Comm. 296. 
Bona, adj. Ib6w n�/. Lat. Good. Used in numerous 
legal phrases of which the following are examples: 
Bona fides Ib6wn� faydiyz/. Good faith; integrity of 
dealing; honesty; sincerity; the opposite of mala fides 
and of dolus malus. See Bona fide. 
Bona gestura Ib6wn� jest(y)ur�/. Good abearance or 
behavior. 
Bona gratia Ib6wn� greysh(iy)�/. In the Roman law, by 
mutual consent; voluntarily. A term applied to a spe
cies of divorce where the parties separated by mutual 
consent; or where the parties renounced their marital 
engagements without assigning any cause, or upon mere 
pretexts. 
Bona memoria Ib6wn� m�m6r(i)y�/. Good memory. 
Generally used in the phrase sanre mentis et bonre memo
rice, of sound mind and good memory, as descriptive of 
the mental capacity of a testator. 
Bome fidei Ib6wniy faydiyay/. In the civil law, of good 
faith; in good faith. 
Bome fidei contracts Ib6wniy faydiyay k6ntrcektsl. In 
civil and Scotch law, those contracts in which equity 
may interpose to correct inequalities, and to adjust all 
matters ac�ording to the plain intention of the parties. 
Bonce fidei emptor Ib6wniy faydiyay empt�r/. A pur
chaser in good faith. One who either was ignorant that 
the thing he bought belonged to another or supposed 
that the seller had a right to sell it. 
Bonce fidei non congruit de apicihus juris disputare 
Ib6wniy faydiyay nOIJ k�IJgruw�t diy eypis�b�s jur�s 
dispyuwteriy I. It is unbecoming to (or incompatible 
with good faith to) discuss (insist upon) the extreme 
subtleties of the law. A maxim which may be more 
freely rendered as meaning, "To insist on extreme sub
tleties of law is an encouragement to fraud."

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177 
Bonre fidei possessor lb6wniy faydiyay p::>zes::>r I. A 
possessor in good faith. One who believes that no other 
person has a better right to the possession than himself. 
Bonre fidei possessor in id tantum quod sese perven· 
erit tenetur Ib6wniy faydiyay p::>zes::>r in id trent::>m 
kw6d siysiy p�rv::>nir::>t t::>niyt::>r I. A possessor in good 
faith is liable only for that which he himself has ob
tained (or that which has come to him). 
Bona fide Ib6wn::> faydiy Ib6wn::> fayd/. In or with good 
faith; honestly, openly, and sincerely; without deceit or 
fraud. Merrill v. Dept. of Motor Vehicles, 71 Ca1.2d 907, 
80 Cal.Rptr. 89, 458 P.2d 33. Truly; actually;' without 
simulation or pretense. Innocently; in the attitude of 
trust and confidence; without notice of fraud, etc. Real, 
actual, genuine, and not feigned. Bridgeport Mortgage 
& Realty Corporation v. Whitlock, 128 Conn. 57, 20 A.2d 
414, 416. See also Good faith. 
Bona fide business purpose. In tax law, this term is 
often used in determining whether a real business pur
pose in fact existed for carrying out a particular transac
tion. See also Business (Business purpose). 
Bona fide error. Mistake made unintentionally; inad
vertently; in good faith. Within meaning of Truth in 
Lending Act's exemption from liability for bona fide 
errors, "bona fide error" is error made in course of 
good-faith attempt at compliance with Act's require
ments. Mirabal v. General Motors Acceptance Corp., 
C.A.Ill., 537 F.2d 871, 878. 
Bona fide holder for value. An innocent or "bona fide 
holder for value" of negotiable paper is one who has 
taken it in good faith for a valuable consideration in the 
ordinary course of business and when it was not over
due. One who receives negotiable paper in payment of 
antecedent obligations without notice of prior equities. 
Vnder V.C.C. § 3-302, the requirements for a holder in 
due course are different from a mere bona fide holder 
for value. See Holder in due course. 
Bona fide judgment creditor. One who in good faith, 
without fraud or collusion, recovers a judgment for 
money honestly due him. 
Bona fide mortgage. Essential elements of status are 
good faith, valuable consideration, and absence of notice. 
Companaro v. Gondolfo, C.C.A.N.J., 60 F.2d 451, 452. 
To constitute "bona fide mortgagee" there must be an 
absence of notice and payment of, or fixed liability for 
the consideration. Cambridge Production Credit Ass'n 
v. Patrick, 140 Ohio St. 521, 45 N.E.2d 751, 755. 
Bona fide occupational qualification (BFOQ). Employ
ment in particular jobs may not be limited to persons of 
a particular sex, religion, or national origin unless the 
employer can show that sex, religion, or national origin 
is an actual qualification for performing the job. The 
qualification is called a bona fide occupational qualifica
tion. 
Bona fide operators. Substantial, as distinguished from 
incidental, sporadic, or infrequent service. Gonez v. 
Interstate Commerce Commission, D.C.Mass., 48 F.Supp. 
286, 288. 
Black's Law Dictionary 6th Ed.-5 
BONA VACANTIA 
Bona fide possessor. One who not only supposes himself 
to be the true proprietor of the land, but who is ignorant 
that his title is contested by some other person claiming 
a better right to it. 
Bona fide purchaser. One who has purchased property 
for value without any notice of any defects in the title of 
the seller. Walters v. Calderon, 25 Cal.App.3d 863, 102 
Cal. Rptr. 89, 97. One who pays valuable consideration, 
has no notice of outstanding rights of others, and acts in 
good faith. J. C. Equipment, Inc. v. Sky Aviation, Inc., 
Mo.App., 498 S.W.2d 73, 75. 
Bona fide purchaser for value is one who, without 
notice of another's claim of right to, or equity in, proper
ty prior to his acquisition of title, has paid vendor a 
valuable consideration. Snuffin v. Mayo, 6 Wash.App. 
525, 494 P .2d 497. 
One who buys property or to whom a negotiable 
document of title is transferred in good faith and with
out notice of any defense or claim to the property or 
document. V.C.C. § 7-50 1. One who takes trust proper
ty for value and without notice of breach of trust and 
who is not knowingly part of an illegal transaction. 
Restatement, Second, Trusts § 284; Vniform Probate 
Code § 2-202(3). 
Bulk transfer. Purchaser from transferee of bulk 
transfer who takes for value in good faith and without 
notice of any defect of non-compliance with law. 
V.C.C. § 6-110. 
Investment securities. A purchaser for value in good 
faith and without notice of any adverse claim who 
takes delivery of a security in bearer form or of one in 
registered form issued to him or indorsed to him or in 
blank. V.C.C. § 8-302. 
Bona fide residence. Residence with domiciliary intent, 
i.e., a home in which the party actually lives. Alburger 
v. Alburger, 138 Pa.Super. 339, 10 A.2d 888, 890. 
Bona fide sale. A completed transaction in which seller 
makes sale in good faith, for a valuable consideration 
without notice of any reason against the sale. 
Bona fides exigit ut quod convenit fiat Ib6wn::> faydiyz 
egz::>j::>t �t kw6d k::>nviyn::>t fay::>t/. Good faith demands 
that what is agreed upon shall be done. 
Bona fides non patitur ut bis idem exigatur Ib6wn::> 
faydiyz non peyt::>t::>r �t bis ayd::>m egz::>geyt::>r I. Good 
faith does not allow us to demand twice the payment of 
the same thing. 
Bona notabilia Ib6wn::> nowt::>biliy::>I . Lat. Notable 
goods. Goods which must be accounted for in estate of 
decedent. Neal v. Boykin, 132 Ga. 400, 64 S.E. 480, 482. 
Includes almost every kind of property, tangible and 
intangible, if it has appreciable value. In re Rowley's 
Estate, 178 Wash. 460, 35 P.2d 34. 
Bona vacantia Ib6wn::> v::>krensh(iy)::>/. Lat. Vacant 
goods; unclaimed property. Generally, personal proper
ty which escheats to state because no owner, heir or 
next of kin claims it. Now includes real as well as 
personal property and passes to state as an incident of

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BONA VACANTIA 
sovereignty. Boswell v. Citronelle-Mobile Gathering 
Inc., 292 Ala. 344, 294 So.2d 428, 432. 
Bond. A certificate or evidence of a debt on which the 
issuing company or governmental body promises to pay 
the bondholders a specified amount of interest for a 
specified length of time, and to repay the loan on the 
expiration date. A long-term debt instrument that 
promises to pay the lender a series of periodic interest 
payments in addition to returning the principal at matu
rity. In every case a bond represents debt-its holder is 
a creditor of the corporation and not a part owner as is 
the shareholder. Commonly, bonds are secured by a 
mortgage. 
The word "bond" is sometimes used more broadly to 
refer also to unsecured debt instruments, i.e., deben
tures. Income bonds are hybrid instruments that take 
the form of a bond, but the interest obligation is limited 
or tied to the corporate earnings for the year. Partici
pating bonds are another type of hybrid instruments 
that take the form of a typical debt instrument but the 
interest obligation is not fixed so that holders are enti
tled to receive additional amounts from excess earnings 
or from excess distributions, depending on the terms of 
the participating bond. 
A written obligation, made by owner of real property, 
to repay a loan under specific terms, usually accompa
nied by a mortgage placed on land as security. 
See also Debenture. 
Specific types of bonds as relating to finance, surety, 
guaranty, appeals, performance, etc. are set forth below: 
Adjustment bond. Bonds issued upon reorganization of 
corporation. 
Annuit y bond. See Annuity (Annuit y bond). 
Appeal bond. Bond required to cover costs of appeal in 
civil cases. See e.g. Fed.R.App.P. 7. 
Appearance bond. Type of bail bond required to insure 
presence of defendant in criminal case. See Bail (Bail 
bond). 
Arbitrage bond. Bond posted to secure performance of 
arbitrage agreement; a bond which is the subject of 
arbitrage. See Arbitrage. 
Attachment bond. See that title. 
Bail bond. See Bail (Bail bond). 
Bearer bond. See that title. 
Bid bond. See that title. 
Blanket bond. See that title. 
Bond and mortgage. A species of security, consisting of 
a bond conditioned for the repayment of a loan of 
money, and a mortgage of realty to secure the perform
ance of the stipulations of the bond. 
Bond coupon. Part of bond which is cut and surren
dered for payment of one of successive payments of 
interest. See Coupon bond, below. 
Bond creditor. A creditor whose debt is secured by a 
bond. 
178 
Bond discount. The difference between the face amount 
or obligation of the bond and the current market price 
of such bond, if selling price is lower than market price. 
Claussen's Inc. v. U. S., C.A.Ga., 469 F.2d 340, 345. 
Bond dividend. See Dividend. 
Bond for deed. See Bond for title, below. 
Bond for title. An agreement to make title in the 
future on an executory or incomplete sale. Ingram v. 
Smith, 62 Ga.App. 335, 7 S.E.2d 922, .926. It is not a 
conveyance of legal title but only a contract to convey 
and may ripen into an equitable title upon payment of 
the consideration. 
Bond issue. The totality of bonds issued at a given time 
(for sale to investors). Delivery of instruments as cover
ed by term. Vans Agnew v. Fort Myers Drainage Dist., 
C.C.A.Fla., 69 F.2d 244, 245. 
Bond of state or local government. See Municipal bond, 
below. 
Bond premium. The difference between the face 
amount or obligation of the bond and the selling price of 
such bond if the selling price is greater than the face 
amount. 
Bottomry bond. Bond secured by mortgage of ships. 
Callable bond. See Callable bonds. 
Chattel mortgage bond. Bonds secured by mortgage on 
chattels of business. 
Closed-end mortgage bond. Debt security with provi
sions which prohibit the firm from issuing additional 
bonds with the priority of claim against assets. 
Collateral trust bond. A bond secured by collateral 
deposited with a trustee. The collateral is often the 
stocks or bonds of companies controlled by the issuing 
company but may be other securities. 
Type of chattel mortgages that are normally secured 
by common stock and/or bonds issued by subsidiaries of 
the issuing firm. 
Common defeasance bond. One in which the obligor 
agrees to pay a stipulated amount called a penalty, 
subject to a condition of defeasance that voids the cove
nant to pay the specified amount if the condition occurs, 
and the only covenant or promise to pay by the obligor 
in such bond is to pay the penalty if the condition is not 
fulfilled; also known as penalty bond. United Mail 
Order, Warehouse & Retail Emp. Union, Local 20 v. 
Montgomery Ward & Co., 9 IlL2d 101, 137 N.E.2d 47, 51. 
Common law bond. That which provides coverage in 
excess of the minimum statutory requirements with 
respect to a public works project. Florida Keys Commu
nity College v. Insurance Co. of North America, Fla.App. 
3 Dist., 456 So.2d 1250, 1251. See Performance bond, 
below. 
Completion bond. A form of surety or guaranty agree
ment which contains the promise of a third party, usual
ly a bonding company, to complete or pay for the cost of 
completion of a construction contract if the construction

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179 
contractor defaults. Bond given to insure public author
ity that contract once awarded will be completed as 
awarded within fixed period of time. Extruded Louver 
Corp. v. McNulty, 34 Misc.2d 566, 226 N.Y.S.2d 220, 224. 
See Common law bond; Contract bond; Performance 
bond; also, Miller Act. 
Consolidated bond. Bond which is sufficiently large in 
face amount to retire two or more outstanding issues of 
bonds or securities. 
Contract bond. A guarantee of the faithful performance 
of a construction contract and the payment of all mate
rial and labor costs incident thereto. A contract bond 
covering faithful performance is known as a "perform
ance bond," and one covering payment of labor and 
materials, a "payment bond." See also Completion bond 
above; Performance bond, below. 
Convertible bond. Bond that can, at the option of the 
holder, be converted into (i.e. exchanged for) stock. 
Corporate bonds. See that title. 
Cost bond. See Appeal bond, above. 
County bonds. See that title. 
Coupon bond. Bond with interest coupons attached. 
The coupons are clipped as they come due and are 
presented by the holder for payment of interest. 
Debenture bond. Bonds secured by general credit of 
government or corporation rather than by any specific 
property; i.e. bond which is not secured with collateral. 
Deferred bonds. See that title. 
Discharging bond. Same as a delivery bond except that 
not only does it permit defendant to regain possession of 
attached property, it also effects a release of the proper
ty from the lien of attachment. Another name for this 
bond is "dissolution bond." 
Discount bond. See Bond discount. 
Executor's bond. A bond that an executor of an estate 
must furnish in order to serve as the administrator of an 
estate. 
Fidelity bond. Bond covering employer-business for loss 
due to embezzlement, larceny, or gross negligence by 
employees. 
Fiduciary bond. See Fiduciary. 
First mortgage bond. Long-term security that has first 
claim on specified assets. 
Foreign bond. An international bond which is denom
inated in the currency of the country in which it is 
issued. 
General average bond. See that title. 
General mortgage bond. A bond which is secured by a 
blanket mortgage on the company's property, but which 
may be subordinate to one or more other mortgages. 
General obligation bond. A bond secured by the "full 
faith and credit" of the issuing government and backed 
by revenues from its taxing power. 
BOND 
Gold bond. Formerly, bond containing a clause which 
required payment of the bonded indebtedness in gold; 
such clause has since been prohibited. Norman v. Balti
more & Ohio R. R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 
L.Ed. 885. Now bonds are dischargeable by payment in 
legal tender or money. 
Government bond. Evidence of indebtedness issued by 
the government to finance its operations. Such bonds 
are backed solely by the credit of the government. 
Guaranteed bond. A bond which has interest or princi
pal, or both, guaranteed by a company other than the 
issuer. 
Guaranty bond. Type of bond which combines the fea
tures of both the fidelity and surety bond and which is 
given to secure payment and performance. 
Improvement bond. Type of bonds issued by a city, town 
or special authority to finance improvements within the 
district, with payment to be made only from the im
provement fund. 
Income bond. Bonds on which interest is payable only 
when earned and after payment of interest upon prior 
mortgages. In some cases unpaid interest on an income 
bond may accumulate as a claim against the corporation 
when the bond becomes due. An income bond may also 
be issued in lieu of preferred stock. 
Indemnity bond. See that title. 
Indeterminate bond. Callable bond with no set maturity 
date. 
Industrial development bonds. Such bonds are issued by 
a municipality as a means of attracting private business
es. The bonds are marketed by the municipality and 
the proceeds used to build the private business facility. 
Commonly, the business leases the facility from the 
municipality for a total rent equal to the amount neces
sary to pay the interest and amortize the principal on 
the bonds. 
Industrial revenue bonds. A specific type of revenue 
bond whose proceeds are used to finance the purchase or 
construction of facilities or equipment to be leased to a 
private corporation. The bonds are backed by the credit 
of the corporation. 
Interest bond. Bond paid in lieu of interest due on other 
bonds. 
Investment grade bonds. Any bond with a rating of BBB 
or better by the leading bond rating services. 
Joint and several bond. A bond the principal and inter
est of which is guaranteed by two or more persons. 
Joint bond. Bond executed by two or more obligors who 
must be joined in any action on such, as opposed to joint 
and several bond, on which any or all of obligors may be 
sued at the option of the obligee. 
Judicial bonds. See that title. 
Junior bond. Bonds which are subordinate in priority, 
in principal or interest to another issue.

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BOND 
Junk bond. High yield, high risk bonds of two types: 
those which were investment-grade when originally is
sued, but which have subsequently been downgraded 
and those originally issued as low-grade bonds. The 
latter group includes bonds issued by low-rated compa
nies to finance operations as well as those issued in 
connection with corporate takeovers. 
Leasehold mortgage bond. A bond secured by a building 
constructed on leased real estate. This bond is subject 
to the compliance by the lessee (who issues the bond) 
with the terms of the lease; upon default in the terms of 
the lease the lessor of the leased real estate has priority 
over the holders of the leasehold bonds. 
Liability bond. One which is intended to protect the 
assured from liability for damages. or to protect the 
persons damaged by injuries occasioned by the assured 
as specified, when such liability should accrue, and be 
imposed by law, as by a court, as distinguished from an 
indemnity bond, whose purpose is only to indemnify the 
assured against actual loss by way of reimbursement for 
moneys paid or which must be paid. 
License bond. The term "License Bond" is used inter
changeably with "Permit Bond" to describe bonds re
quired by state law, municipal ordinance, or by regula
tion as a condition precedent to the granting of a license 
to engage in a specified business or the grant of a permit 
to exercise a certain privilege. 
Such bonds provide payment to the obligee for the loss 
or damage resulting from the operations permitted by 
law, ordinance or regulation, under which the bond is 
required and for violations by the licensee of the duties 
and obligations imposed upon him. 
Maintenance bond. Bond guaranteeing against defects 
in wvrkmanship or materials for period of time follow
ing completion of work contracted for. 
Mortgage bond. A bond secured by a mortgage on a 
property. The value of the property may or may not 
equal the value of the so-called mortgage bonds issued 
against it. See also Leasehold mortgage bond, above. 
Municipal bond. A bond issued by a state or a political 
subdivision, such as county, city, town or village. The 
term also designates bonds issued by state agencies and 
authorities. In general, interest paid on municipal 
bonds is exempt from federal income taxes and state and 
local income taxes within the state of issue. See also 
Industrial development bonds; Industrial revenue bonds, 
above. 
Noncallable bond. Bonds which are neither refundable 
nor redeemable. Lucas v. Florida Power & Light Co., 
C.A.Fla., 765 F.2d 1039, 1041. Bonds that cannot be 
redeemed at the option of the issuer. 
Obligation bond. Device used by states and municipali
ties to obtain funds to support projects. City of Spokane 
v. Taxpayers of City of Spokane et aI., 111 Wash.2d 91, 
758 P.2d 480, 484. The sale of general obligation bonds 
is the commitment of the state to a debtor relationship 
with those who purchase the bonds. Thomas v. Rosen, 
180 
Alaska, 569 P.2d 793, 796. See General obligation bond, 
above. 
Official bond. A bond given by a public officer, condi
tioned that he shall well and faithfully perform all the 
duties of the office. The term is sometimes made to 
include the bonds of executors, guardians, trustees, etc. 
Passive bond. Bond which bears no interest. 
Payment bond. See Mi ller Act. 
Peace bond. See that title. 
Penal bond. See that title. 
Performance bond. Type of contract bond which pro
tects against loss due to the inability or refusal of a 
contractor to perform his contract. Such are normally 
required on public construction projects. See Common 
law bond; Completion bond; Contract bond, above; also, 
Mill er Act. 
Perpetual bond. A bond that has no maturity date. 
Personal bond. A written document in which the obli
gor formally recognizes an obligation to pay money or to 
do a specific act; e.g. surrender a lost bank book when it 
is found. 
Premium bond. Bond with selling price above face or 
redemption value. See, also, Bond premium, above. 
Put bond. Bond that gives holder right to redeem at 
specified times before maturity for full face value. 
Railroad aid bonds. Bonds issued by municipal corpora
tions to aid in the construction of railways. 
Redeemable bond. See that title. 
Redelivery bond. A statutory bond given by a person in 
whose possession attached property is found in order to 
regain possession of the property. 
Refunding bond. See that title. 
Registered bond. A bond which is registered on the 
books of the issuing company in the name of the owner. 
It can be transferred only when endorsed by the reg
istered owner. 
Removal bond. See that title. 
Reorganization bond. See Adjustment bond, above. 
Replevin bond. Replevin (Replevin bond). 
Revenue bond. Bonds issued by a public agency, munici
pal corporation, or state for purpose of raising revenue. 
Debt securities issued by municipalities in which the 
payments must be generated by the project supported by 
the proceeds from the bonds issued. (e.g. earnings of 
municipal sports complex.) 
School bonds. Bonds issued by a city, town or school 
district for purpose of school construction. 
Serial bond. Bond issue consisting of a number of bonds 
with different maturity dates. Bonds are issued at the 
same time as distinguished from series bonds which are 
issued at different times.

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181 
Series bonds. Groups of bonds normally issued at differ
ent times but under same indenture. 
Silver bond. Bonds which require payment in silver; 
not used in U.S. since payment may be made in legal 
tender. 
Simple bond. At common law, a bond without penalty; 
a bond for the payment of a definite sum of money to a 
named obligee on demand or on a day certain. 
Single bond. A deed whereby the obligor obliges him
self, his heirs, executors, and administrators, to pay a 
certain sum of money to the obligee at a day named, 
without terms of defeasance. 
Special tax or assessment bonds. Bonds secured by 
special levies on taxpayers, usually those in the area 
immediately benefiting from the project or improve
ment. 
State bond. Bond issued by state, obligating state to 
make payment. 
Straw bond. A bond upon which is used either the 
names of fictitious persons or those unable to pay the 
sum guaranteed; generally applied to insufficient bail 
bonds, improperly taken. 
Submission bond. See that title. 
Subordinated bonds or debentures. See that title. 
Supersedeas bond. See that title. 
Suretyship bond. A contractual arrangement between 
the surety, the principal and the obligee whereby the 
surety agrees to protect the obligee if the principal 
defaults in performing the principal's contractual obli
gations. The bond is the instrument which binds the 
surety. See e.g., Bail (Bail bond). 
Tax exempt bond. A bond, the receipt of income from 
which is not taxable, e.g. municipal bond (q. v.). 
Treasury bonds. Bonds reacquired or unsold by corpora
tion. Bonds issued by U.S. Treasury (e.g. U.S. Savings 
bonds). See also Treasury bond. 
U.S. Savings bonds. An obligation of the United States 
designed to afford persons the opportunity to create 
savings by purchasing the bond at a reduced sum and 
requiring the purchaser to wait a period of time to 
redeem at face value. 
Zero coupon bond. Treasury bond that has had the 
interest coupon clipped by the purchaser of the bond. 
This purchaser sells the remaining bond at a discount 
from its face value. The deep discount reflects the 
many years, usually fifteen to thirty, that remain until 
the bond may be redeemed at face value. The advan
tage of these long-term investments is the security af
forded by United States Government backing. U.S. v. 
Parker, C.A.Fla., 839 F.2d 1473, 1475. 
Bondage. Slavery; involuntary personal servitude; cap
tivity. In old English law, villenage, villein tenure. 
Such is prohibited by 13th Amendment to U.S. Constitu
tion. 
BONIFICATION 
Bond conversion. The act of exchanging convertible 
bonds for preferred or common stock. 
Bond discount. Sale of bonds on the market at a price 
less than the face amount of such. Claussen's, Inc. v. U. 
S., C.A.Ga., 469 F.2d 340, 345. 
From the standpoint of the issuer of a bond at the 
issue date, is the excess of the par value of a bond over 
its initial sales price; at later dates the excess of par 
over the sum of (initial) issue price plus the portion of 
discount already amortized. From the standpoint of a 
bondholder, is the difference between par value and 
selling price when the bond sells below par. 
Bonded debt. The indebtedness of a business or govern
ment which is represented by bonds payable. Indebted
ness lawfully contracted for governmental purposes, 
payable from taxes on all property within municipality. 
Bonded warehouse. See Warehouse system. 
Bondholders. Creditors of a business, whose evidence of 
debt is a bond issued by the business. 
Bond indenture. The contract between an issuer of 
bonds and the bondholders. An instrument of secured 
indebtedness issued by a corporation. See Indenture. 
Bond premium. The excess of the price of bonds over 
their face value, and generally reflects the difference 
between the nominal interest rate borne by such bonds 
and the actual or effective rate of return determined by 
the current market. Grace v. New York State Tax 
Commission, 37 N.Y.2d 193, 371 N.Y.S.2d 715, 332 
N.E.2d 886. 
Bond rating. System of evaluating, appraising and rat
ing the investment value of individual bond issues (i.e. a 
bond's probability of default). Triple A (AAA) bonds 
have the highest rating. There are several major bond 
rating companies or services that make such evalua
tions. 
Bond redemption. Retirement of bonds upon payment. 
See Redemption. 
Bond refunding. A situation that occurs when a firm 
redeems a callable bond issue and sells a generally lower 
interest cost issue to take its place. A bond is refunded 
when a municipality or state calls in an existing bond, 
usually when interest rates have dropped, to replace it 
with lower-cost financing. 
Bondsman. A surety; one who has entered into a bond 
to give surety for another; e.g., bail bondsman. See Bail 
(Bail bond). 
Bond yield. See Yield. 
Bones gents Ibown jents/. L. Fr. In old English law, 
good men (of the jury). 
Bonification. The remission of a tax, particularly on 
goods intended for export, having the same effect as a 
bonus or drawback. A device enabling a commodity to 
be exported and sold in the foreign market as if it had 
not been taxed. U. S. v. Passavant, 169 U.S. 16, 18 S.Ct. 
219, 42 L.Ed. 644.

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BONI HOMINES 
Boni homines /bownay hom�niyz/. In old European 
law, good men; a name given in early European juris
prudence to the tenants of the lord, who judged each 
other in the lord's courts. 3 Bl.Comm. 349. 
Boni judicis est ampliare jurisdictionem /bownay 
juwd�s�s est rempliyeriy jur�sdikshiyown�m/. It is the 
part of a good judge to enlarge (or use liberally) his 
remedial authority or jurisdiction. 
Boni judicis est ampliare justitiam /bownay juwd�s�s 
est rempliyeriy j�stishiy�m/. It is the duty of a good 
judge to enlarge or extend justice. 
Boni judicis est judicium sine dilatione mandar e exe
cutioni /bownay juwd�s�s est juwdishiy�m sayniy 
d�leyshiyowniy mrenderiy egz�kyuwshiyownay /. It is 
the duty of a good judge to cause judgment to be exe
cuted without delay. 
Boni judicis est lites dirimere, ne lis ex lite oritur, et 
interest reipublicre ut sint fines litium /bownay 
juwd�s�s est laytiyz d�rim�riy, niy lays eks laytiy or�t�r, 
et int�r�st riyayp�bl�siy ;)t sint fayniyz lish(iy)�m/. It is 
the duty of a good judge to prevent litigations, that suit 
may not grow out of suit, and it concerns the welfare of 
a state that an end be put to litigation. 
Bonis cedere /bown�s siyd�riy/. In the civil law, to 
make a transfer or surrender of property, as a debtor did 
to his creditors. 
Bonis non amovendis /bown�s non eym�vend�s/. A 
writ addressed to the sheriff, when a writ of error has 
been brought, commanding that the person against 
whom judgment has been obtained be not suffered to 
remove his goods till the error be tried and determined. 
Bonitarian ownership /bown�teriy�n own�rship/. In 
Roman law, a species of equitable title to things, as 
distinguished from a title acquired according to the 
strict forms of the municipal law; the property of a 
Roman citizen in a subject capable of quiritary property, 
acquired by a title not known to the civil law, but 
introduced by the prretor, and protected by his imperium 
or supreme executive power, e.g., where res mancipi had 
been transferred by mere tradition. 
Bono et malo /bownow et mrelow / . A special writ of jail 
delivery, which formerly issued of course for each partic
ular prisoner. 4 Bl.Comm. 270. 
Bonum defendentis ex integra causa; malum ex quo
libet defectu /bown�m d�fendent�s eks integr� koz� 
mrel�m eks kwodl�b�t d�fekt(y)uw/. The success of a 
defendant depends on a perfect case; his loss arises from 
some defect. 
Bonum necessarium extra terminos necessitatis non 
est bonum /bown�m nes�seriy�m ekstr� t�rm�nows 
n�ses�teyt�s non est bow n�m/. A good thing required 
by necessity is not good beyond the limits of such neces
sity. 
Bonus. A consideration or premium paid in addition to 
what is strictly due. A gratuity to which the recipient 
has no right to make a demand. Walling v. Plymouth 
Mfg. Corporation, C. c.A. Ind. , 139 F.2d 178, 182. A 
182 
premium or extra or irregular remuneration in consider
ation of offices performed or to encourage their perform
ance. Willkie v. Commissioner of Internal Revenue, 
C.C.A.6, 127 F.2d 953, 956. A premium paid to a grant
or or vendor. An advance royalty. Sneed v. Commis
sioner of Internal Revenue, C.C.A.Tex., 119 F.2d 767, 
770. An extra consideration given for what is received, 
or something given in addition to what is ordinarily 
received by, or strictly due, the recipient. La Juett v. 
Coty Mach. Co., 153 Misc. 410, 275 N.Y.S. 822. An 
addition to salary or wages normally paid for extraordi
nary work. An inducement to employees to procure 
efficient and faithful service. Duffy Bros. v. Bing & 
Bing, 217 App.Div. 10, 215 N.Y.S. 755, 758. Considera
tion or down payment for mineral lease or transfer of oil 
lands. State Nat. Bank of Corpus Christi v. Morgan, 
Tex.Civ.App ., 123 S.W.2d 1036, 1038; In re Levy, 185 
Okl. 477, 94 P.2d 537, 539. Gift in recognition of offi
cer's past successful direction of corporate affairs. 
Thomas v. Commissioner of Internal Revenue, C.C.A.La., 
135 F.2d 378, 379. Compensation paid to professional 
athlete in addition to salary for signing with particular 
team or for specific performance levels. See also Bonus 
stock; Premium. 
Bonus judex secundum requum et bonum judicat, et 
requitatem stricto juri prrefert /bown�s juwdeks 
s�k�nd�m iykw�m et bown�m juwd�k�t, ed ekw�teyt�m 
striktow juray priyf;)rtl. A good judge decides according 
to what is just and good, and prefers equity to strict law. 
Bonus share. See Bonus stock, infra. 
Bonus stock. Stock given as premium in connection 
with (to encourage) the sale of another class of securi
ties; e.g. stock issued to the purchasers of bonds as an 
inducement to them to purchase bonds or loan money. 
Par value shares issued without consideration, usually 
in connection with the issuance of preferred or senior 
securities, or debt instruments. Bonus shares are con
sidered a species of watered shares and may impose a 
liability on the recipient equal to the amount of par 
value. 
Booby trap. A concealed or camouflaged device de
signed to be triggered by an unsuspecting victim; loose
ly, any device which catches a person off-guard. 
Boodle. Term used to designate the money held to be 
paid or paid as a bribe for corrupt official action. 
Boodling. In the slang of the day, corrupt legislative 
practices and corrupt influences affecting legislation. 
Book. An assembly or concourse of ideas expressed in 
words. U. S. v. One Obscene Book Entitled "Married 
Love", D.C.N.Y., 48 F.2d 821, 823. A literary composi
tion which is printed; a printed composition bound in a 
volume. The largest subdivisions of a treatise or other 
literary composition. 
A bound volume consisting of sheets of paper, not 
normally printed, containing manuscript entries; such 
as a merchant's account-books, dockets of courts, etc. 
See various types below.

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183 
To register or make reservation for transportation, 
lodging, etc. To set date and time for engagement or 
appointment. 
Book account. A detailed statement, in the nature of 
debits and credits between entities; an account or record 
of debits and credits kept in a book. A book in which a 
detailed history of business transactions is entered; a 
record of goods sold or services rendered; a statement in 
detail of the transactions between parties. 
Book entry. A notation, generally of figures or numbers, 
made in an accounting journal, consisting, in double 
entry bookkeeping, of debits and credits. 
Book land. In old English law, land, also called "char
terland," which was held by deed under certain rents 
and free services, and differed in nothing from free 
socage land. 2 Bl.Comm. 90. 
Book of original entry. A book maintained to record the 
day to day transactions of an entity, including the sale 
and delivery of goods. A book in which a detailed 
history of business transactions are entered. Nicola v. 
U.S., C.C.A.Pa., 72 F.2d 780, 783. 
Books of account. Books in which merchants, traders, 
and businessmen generally keep their accounts; includ
ing journals, ledgers, and other accounting records. En
tries made in the regular course of business. Nicola v. 
U.S., C.C.A.Pa., 72 F.2d 780, 783. Serial, continuous, 
and permanent memorials of business affairs. 
Book value. The value at which an asset is carried on 
the balance sheet. Book value is the cost less accumu
lated depreciation or the valuation allowance. Book 
value is based on the historical cost of an asset and may 
vary significantly from the fair market value. The net 
amount of an asset after reduction by a related reserve. 
The book value of accounts receivable, for example, 
would be the amount of the receivables less the reserve 
for bad debts. 
Corporate books. Whatever is kept as written evidence 
of official doings and business transactions. First Nat. 
Bank of Colorado Springs v. Holt, Mo.App., 158 S.W.2d 
229, 231. 
Criminal proceedings. See Booking. 
Office book. See Office. 
Booked. Engaged, destined, bound to promise or pledge 
oneself to make an engagement. To have travel, lodg
ing, etc. reservations. To enter charges against accused 
in police register or blotter. See Booking. 
Booking. Administrative step taken after an arrested 
person is brought to the police station, which involves 
entry of the person's name, the crime for which the 
arrest was made, and other relevant facts on the police 
"blotter," and which may also include photographing, 
fingerprinting, and the like. 
A form of gambling commonly associated with num
ber pools horse and dog racing when engaged in away 
from the track. See Bookmaker; Bookmaking. 
BOOT 
Booking contract. A contract made by agents who 
procure contracts for appearance of acts and actors. 
Bookkeeping. The art or science of recording business 
accounts and transactions. See also Accounting; Book. 
Double entry bookkeeping. Accounting system which 
requires that in every entry there be a debit and a 
credit; e.g. on cash sale of merchandise, a debit to cash 
and a credit to sales. 
Bookmaker. A gambler who makes book (i.e., partakes 
in bookmaking) on uncertain future events. One who 
collects and records bets of others. One who establishes 
odds on events which are the subject of gambling. In 
slang, such person is known as "bookie." 
Bookmaking. Formerly the collection of sheets of paper 
or other substances on which entries could be made, 
either written or printed. The term now commonly 
denotes the taking and recording or registering of bets 
or wagers on any trial or contest of speed, skill or power 
of endurance or selling pools. An operation which in
volves both the placing of bets and the paying off or 
collection of debts. State v. Gould, 123 N.J.Super. 444, 
303 A.2d 591, 592. 
Books and papers. Generic term used to describe all 
forms of records which are sought in a summons duces 
tecum, or subject to discovery under Fed.R.Civil P. 
26(b)(1), 34, 45, or Fed.R.Crim.P. 16. See also Business 
records exception; Record; Shop-book rule; Subpoena 
duces tecum. 
Book value. See Book. 
Boomage. A charge on logs for use of a boom in collect
ing, storing, or rafting them. A right of entry on 
riparian lands to fasten booms and boom sticks. 
Boon days. In old English law, certain days in the year 
(sometimes called "due days") on which tenants in copy
hold were obliged to perform corporal services for the 
lord. 
Boosted fire. A fire wherein some inflammable sub
stance other than that of which the building was con
structed or which it contained contributed to its burning 
and spreading. State v. Lytle, 214 Minn. 171, 7 N.W.2d 
305, 309. See Arson. 
Boot. Term used in tax accounting to describe cash or 
property other than property qualifying as such for 
nonrecognition in an exchange of like kind of property 
under I.R.C. § 1031. As used in connection with reorga
nization, includes anything received other than stock or 
securities of a controlled corporation. I.R.C. §§ 355, 
356(b). 
Cash or property of a type not included in the defini
tion of a nontaxable exchange. The receipt of boot will 
cause an otherwise taxfree transfer to become taxable to 
the extent of the lesser of the fair market value of such 
boot or the realized gain on the transfer. 
Cash or other consideration used to balance an other
wise unequal exchange of two properties; e.g. machine 
worth $500 plus $500 for machine worth $10 00. 
An old Saxon word, equivalent to "estovers".

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BOOTHAGE 
Boothage. See Bothagium. 
Bootlegger. One who sells, or keeps for sale, alcoholic 
beverages in violation of law. 
Bootlegging. Illegal manufacture or sale of liquor, ciga
rettes, records, and the like to evade taxing, licensing, 
copyright, etc. laws. See also Contraband; Gray market 
goods. 
Bootstrap doctrine. The decision of a court on a special 
as well as a general appearance that it has jurisdiction 
is not subject of collateral attack but is res judicata. 
Peri v. Groves, 183 Misc. 579, 50 N.Y.S.2d 300, 308. 
Bootstrap sale. A means by which the cash or other 
assets of a business are utilized by the purchaser in 
acquiring ownership of such business. 
An arrangement resulting in tax savings by which a 
seller converts ordinary income from a business into 
capital gain from sale of corporate stock. Commissioner 
of Internal Revenue v. Brown, 380 U.S. 563, 85 S.Ct. 
1162, 14 L.Ed.2d 75. 
Booty. Property captured from the enemy in war, on 
land. 
Bord. An old Saxon word, signifying a cottage; a house; 
a table. 
Bordage. In old English law, a species of base tenure, by 
which certain "bord lands" were anciently held in Eng
land; the service was that of keeping the lord in small 
provisions. 
Bordaria Iborderiy;}I . A cottage. 
Bordarii Iborderiyay I or bordimanni Ibord;}mrenay I. 
In old English law, tenants of a less servile condition 
than the villani, who had a bord or cottage, with a small 
parcel of land, on condition they should supply the lord 
with small provisions. 
Bord-brigch Ibord-briych/. In Saxon law, a breach or 
violation of suretyship; pledge-breach, or breach of mu
tual fidelity. 
Border. Within rules applicable to border searches in
cludes not only actual border crossing points but also 
reasonable extended geographic area in immediate vi
cinity of crossing point. U.S. v. Warner, C.A.Tex., 441 
F.2d 821, 832. 
Bordereau Ibord(;})row/. In insurance, summary of 
transactions between agent and company. 
Border search. Search conducted by immigration or 
customs officials at borders of the country to prevent 
and to detect illegal entry. Immigration and Nationali
ty Act, 8 U.S.C.A. § 1357. Almeida-Sanchez v. U. S., 
413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Any person 
or thing coming into the United States is subject to 
search by that fact alone, whether or not there be any 
suspicion of illegality directed to the particular person 
or thing to be searched. United States v. Odland, 502 
F.2d 148; Camara v. Municipal Court, 387 U.S. 523, 87 
S.Ct. 1727, 18 L.Ed.2d 930. To qualify as a "border 
search," a search must occur at the border or at the 
184 
functional equivalent of the border. U.S. v. Lonabaugh, 
C.A.Tex., 494 F.2d 1257, 1260. See also Border. 
Border warrant. Process issued for search at borders of 
the country for search and for arrest of illegal immi
grants; no warrant necessary for preliminary stop for 
questioning. U. S. v. Brignoni, 422 U.S. 873, 95 S.Ct. 
2574, 45 L.Ed.2d 607. 
Bord-halfpenny Ibord-heypniy/ . In old English law, a 
customary small toll paid to the lord of a town for 
setting up boards, tables, booths, etc., in fairs or mar
kets. 
Bordlands. In feudal law, the demesnes which the lords 
kept in their hands for the maintenance of their board 
or table. Also lands held in bordage. Lands which the 
lord gave to tenants on condition of supplying him with 
small provisions, etc. 
Bordlode Ib6rdlowd/. A service anciently required of 
tenants to carry timber out of the woods of the lord to 
his house; or it is said to be the quantity of food or 
provision which the bordarii or bordmen paid for their 
bordlands. 
Bordservice. A tenure of bordlands. 
Borg Iborg/. In Saxon law, a pledge, pledge giver, or 
surety. The name given among the Saxons to the head 
of each family composing a tithing or decennary, each 
being the pledge for the good conduct of the others. 
Also the contract or engagement of suretyship; and the 
pledge given. 
Borgbriche Iborgbdych/. A breach or violation of sure
tyship, or of mutual fidelity. 
Borgesmon Iborg;}sm;}n/. In Saxon law, the name given 
to the head of each family composing a tithing. 
Born. Act of being delivered or expelled from mother's 
body, whether or not placenta has been separated or 
cord cut. 
Born alive. Refers to product of conception after com
plete expUlsion or extraction from mother, irrespective 
of the duration of the pregnancy, which breathes or 
shows any other evidence of life such as beating of the 
heart, pulsation of the umbilical cord or definite move
ment of voluntary muscles, whether or not the umbilical 
cord has been cut or the placenta is attached. Each 
product of such birth is considered live born and fully 
recognized as a human person. Maine Rev.Stat.Ann., 
Tit. 22, § 1595. See also Viable child. 
Born out of wedlock. Children whose parents are not, 
and have not been, married to each other regardless of 
marital status of either parent with respect to another. 
State v. Coliton, 73 N.D. 582, 17 N.W.2d 546, 549, 552. 
See Ille gitimate. 
Borough Ib�r;}/b�row I. A town or township with a 
municipal charter. E.g. one of the five political divi
sions of New York City. 
In old English law, a fortified town; a town of impor
tance. In latter law, a city or town that sent members

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185 
(burgesses) to Parliament. The status of many boroughs 
was affected by the Local Government Act of 1972. 
Borough courts. In English law, private and limited 
tribunals, held by prescription, charter, or act of par
liament, in particular districts for the convenience of 
the inhabitants, that they may prosecute small suits and 
receive justice at home. Most such courts were abol
ished by the Local Government Act of 1972. 
Borough English. A custom prevalent in some parts of 
England, by which the youngest son inherits the estate 
in preference to his older brothers. Abolished as re
spects enfranchised land by the Law of Property Act 
(1922); and generally in regard to land by the Adminis
tration of Estates Act of 1925. 
Borough fund. In English law, the revenues of a munic
ipal borough from rents and produce of its land, houses, 
and stocks and supplemented where necessary by a 
borough rate. 
Borough sessions. Courts of limited criminal jurisdic
tion, established in English boroughs under the munici
pal corporations act. 
Borrasca Ib:ml!skO}I . Absence of profit, or not enough 
profit to pay the cost of operation, of a placer mine. 
Ballagh v. Williams, 50 Cal.App.2d 10, 122 P.2d 343, 344. 
Borrow. To solicit and receive from another any article 
of property, money or thing of value with the intention 
and promise to repay or return it or its equivalent. If 
the item borrowed is money, there normally exists an 
agreement to pay interest for its use. In a broad sense 
the term means a contract for the use of money. The 
term may be used to express the idea of receiving 
something from another for one's own use. The word 
"loan" is the correlative of "borrow." 
Borrowed capital. Term denoting various transactions 
between corporation and stockholders, but commonly 
referring to cash dividends declared by corporation and 
retained by it pursuant to agreement with stockholders 
for operating business successfully. Southport Mill v. 
Commissioner of Internal Revenue, C.C.A.La., 26 F.2d 
17. Moneys due by corporation to another corporation 
used as its capital. 
Borrowed employee. Before person may be considered 
"borrowed servant," his services must be loaned with his 
acquiescence or consent and he mus.t become wholly 
subject to control and direction of second employer, and 
free during the temporary period from the control of the 
original employer. Foster v. Englewood Hospital Ass'n, 
19 Ill.App.3d 1055, 313 N.E.2d 255, 259. Under the 
"borrowed employee" doctrine, if one to whom an em
ployee is lent is master of servant at very time negligent 
act occurs, it is upon him, as a special employer, that 
liability rests, but if one lending employee is his master 
at very time of injury, then he, as general employer 
incurs liability. Skornia v. Highway Pavers, Inc., Wis., 
39 Wis.2d 293, 159 N.W.2d 76, 79. 
Borrowed servant. See Borrowed employee. 
BOTTLE CLUB 
Borrowed statutes. Laws of one state or jurisdiction 
used by another state in deciding conflicts question 
involved in choice of law; e.g. statute of limitation of 
state where claim accrued as contrasted with statute of 
limitation of forum state. Reinhard v. Textron, Inc., 
Okl., 516 P.2d 1325. 
Borrower. He to whom a thing or money is lent at his 
request. "Borrower," within automobile liability policy 
covering borrower of vehicle during loading and unload
ing, may be defined as someone who has, with permis
sion of owner, temporary possession and use of property 
of another for his own purposes. Liberty Mut. Ins. Co. 
v. American Emp. Ins. Co., Tex., 556 S.W.2d 242, 244. 
Borrowings. Generic term to describe all manners of 
loans from standpoint of debtor. 
Borsholder Ib6rs-how ldO}r/. In Saxon law, the borough's 
ealder, or headborough. 
Boston interest. Interest computed by using a 30 day 
month rather than the exact number of days in the 
month. 
Bote, bot Ib6w t/. In old English law, a recompense or 
compensation, or profit or advantage. Also reparation 
or amends for any damage done. Necessaries for the 
maintenance and carrying on of husbandry. An allow
ance; the ancient name for estovers. 
House-bote. A sufficient allowance of wood from off the 
estate to repair or burn in the house, and sometimes 
termed "fire-bote;" plow-bote and cart-bote are wood to 
be employed in making and repairing all instruments of 
husbandry; and hay-bote or hedge-bote is wood for re
pairing of hays, hedges, or fences. The word also signi
fies reparation for any damage or injury done, as man
bote, which was a compensation or amends for a man 
slain, etc. 
Boteless Ib6wtlO}s/. In old English law, without amends; 
without the privilege of making satisfaction for a crime 
by a pecuniary payment; without relief or remedy. 
Both. The one and the other; the two without the 
exception of either. The term likewise has a meaning 
which excludes more than two mentioned subject mat
ters. In re Turner's Estate, 171 Misc. 78, 11 N.Y.S.2d 
800, 802. "Either," may mean "both." Kibler v. Par
ker, 191 Ark. 475, 86 S.W.2d 925, 926. 
Bothagium IbowBeyjiyO}ml or boothage IbuwBO}j/. In 
feudal law, customary dues paid to the lord of a manor 
or soil, for the pitching or standing of booths in fairs or 
markets. 
BotHer of the king. In old English law, an officer who 
provided the king's wines. By virtue of his office, he 
might choose, out of every ship laden with wines, one 
cask before the mast, and one behind. 
Bottle club. A place where no intoxicating liquors are 
sold but in which a member may keep his liquor for 
consumption on the premises and in which mixes or 
so-called "set ups" are provided by the club. Mutch
all v. City of Kalamazoo, 323 Mich. 215, 35 N.W.2d 245.

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BOTTOMAGE 
Bottomage. L. Fr. Bottomry. 
Bottom hole contract. A form of agreement used in 
drilling for oil or gas and which requires a payment by 
owners of well to lessee of well upon the drilling to a 
specified depth. 
Bottom land. As used in a contract to convey, means 
low land formed by alluvial deposits along the river, 
low-lying ground, a dale, valley, or intervale. 
Bottom line. A term used in accounting to describe the 
net income or loss after income taxes. 
Bottomry Ib6t;}mriy/. In maritime law, a contract by 
which the owner of a ship borrows for the use, equip
ment, or repair of the vessel, and for a definite term, 
and pledges the ship (or the keel or bottom of the ship, 
pars pro toto ) as security; it being stipulated that if the 
ship be lost in the specified voyage, or during the limited 
time, by any of the perils enumerated, the lender shall 
lose his money. 
A contract by which a ship or its freightage is hy
pothecated as security for a loan, which is to be repaid 
only in case the ship survives a particular risk, voyage, 
or period. The contract usually in form a bond. When 
the loan is not made on the ship, but on the goods on 
board, and which are to be sold or exchanged in the 
course of the voyage, the borrower's personal responsi
bility is deemed the principal security for the perform
ance of the contract, which is therefore called "respon
dentia. " 
Bottomry bond. The instrument embodying the con
tract or agreement of bottomry. Bond with mortgage of 
ship as security. 
Botulism Ib6ty;}liz;}m/. Food poisoning caused by a tox
in which is produced by Clostridium (bacillus) botuli
num. 
Bouche Ibuwsh/buch /. Fr. The mouth. An allowance 
of provision. Avoir bouche a court; to have an allow
ance at court; to be in ordinary at court; to have meat 
and drink scotfree there. 
Bouche of court, or budge of court. A certain allow
ance of provision from the king to his knights and 
servants, who attended him on any mili�ary expedition. 
Bough of a tree. In feudal law, a symbol which gave 
seisin of land, to hold of the donor in capite. 
Bought. Implies a completed transaction, a vesting of 
the right of title to and possession of the property sold, 
and also imports a valuable consideration. 
Bought and sold notes. A note of the sale by a broker 
employed to buy and sell goods is called a "sold note," 
and a like note to the seller is called a "bought note." 
Boulevard Ibul;}vard/. The word originally indicated a 
bulwark or rampart, and afterwards applied to a public 
walk or road on the site of a demolished fortification. 
Term now generally refers to a street or · highway with 
park-like appearance; or one specially designed for 
pleasure walking or driving; often landscaped. A wide 
street, or a street encircling a town, with sides or center 
186 
for shade trees, etc. State ex reI. Copland v. City of 
Toledo, 75 Ohio App. 378, 62 N.E.2d 256, 258. 
Boulevard rule. "Boulevard rule" commands that a 
driver upon approaching a "through highway" from an 
unfavored road must stop and yield right-of-way to all 
traffic already in or which may enter the intersection 
during the entire time the unfavored driver encroaches 
upon the right-of-way and that duty continues as long as 
he is in the intersection and until he becomes a part of 
the flow of favored travellers or successfully traverses 
the boulevard. Creaser v. Owens, 267 Md. 238, 297 A.2d 
235, 236. 
Boulvareism. A bargaining tactic in labor negotiations 
by which employer chooses a middle ground that both 
employer and union know will be the probable outcome 
before the beginning of the bargaining. N. L. R. B. v. 
General Elec. Co., C.A.N.Y., 418 F.2d 736, 740. 
Bouncer. A term used to designate persons employed to 
preserve the peace in establishments such as night clubs 
and other places of amusement where people indulge in 
dancing, drinking and in gambling. Moore v. Blanch
ard, La.App., 35 So.2d 667, 669. 
Bound. As an ad jective, denotes the condition of being 
constrained by the obligations of a bond, contract, cove
nant, or other moral or legal obligation. See Duty; 
Obligation. 
In the law of shipping, "bound to" or "bound for" 
denotes that the vessel spoken of is intended or designed 
to make a voyage to the place named. 
As a noun, denotes a limit or boundary, or a line 
inclosing or marking off a tract of land. In the phrase 
"metes and bounds," denotes the natural or artificial 
marks which indicate their beginning and ending. 
"Bound" may signify the limit itself, and "boundary" 
designate a visible mark which indicates the limit. See 
Boundary. 
Boundary. Every separation, natural or artif icial, 
which marks the confines or line of division of two 
contiguous properties. Limits or marks of enclosures if 
possession be without title, or the boundaries or limits 
stated in title deed if possession be under a title. See 
also Land boundaries; Metes and bounds; Plat map. 
Natural boundary. Any formation or product of nature 
which may serve to define and fix one or more of the 
lines inclosing an estate or piece of property. 
Private boundary. An artificial boundary set up to 
mark the beginning or direction of a boundary line. 
Public boundary. A natural boundary; a natural object 
or landmark used as a boundary or as a beginning point 
for a boundary line. 
Bound bailiffs. In English law, sheriffs' officers are so 
called, from their being usually bound to the sheriff in 
an obligation with sureties, for the due execution of 
their office. 
Bounded tree. A tree marking or standing at the cor
ner of a field or estate.

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187 
Bounders. Visible marks or objects at the ends of the 
lines drawn in surveys of land, showing the courses and 
distances. See Landmark. 
Bound over. See Binding over. 
Bounds. The external or limiting lines, either real or 
imaginary, of any object or space; that which limits or 
circumscribes. 
Bounty. A gratuity, or an unusual or additional benefit 
conferred upon, or compensation paid to, a class of 
persons. A premium given or offered to enlisted men to 
induce enlistment into public service. Bounty is the 
appropriate term where services or action of many per
sons are desired, and each who acts upon the offer may 
entitle himself to the promised gratuity (e.g. killing of 
dangerous animals). Reward is more proper in the case 
of a single service, which can be only once performed, 
and therefore will be earned only by the person or 
co-operative persons who succeed while others fail (e.g. 
capture of fugitive). See also Reward. 
Bounty lands. Portions of the public domain given or 
donated as a bounty for services rendered, chiefly for 
military service. 
Bourg Iburg/. In old French law, an assemblage of 
houses surrounded with walls; a fortified town or vil
lage. In old English law, a borough, a village. 
Bourgeois Iburzhw6 /. The inhabitant of a bourg. A 
person entitled to the privileges of a municipal corpora
tion; a burgess. A member of the middle classes. 
Bourse Ibur sl. Fr. An exchange; a stock exchange. 
Bourse de commerce Iburs d� komersl. In the French 
law, an aggregation, sanctioned by government, of mer
chants, captains of vessels, exchange agents, and courti
ers, the two latter being nominated by the government, 
in each city which has a bourse. 
Bovata terrre Ibowveyt� tehriy/. In old English law, as 
much land as one ox can cultivate. Said by some to be 
thirteen, by others eighteen, acres in extent. See Caru
cata. 
Bow-bearer. In old English law, an under-officer of the 
forest, whose duty it was to oversee and true inquisition 
make, as well of sworn men as unsworn, in every baili
wick of the forest; and of all manner of trespasses done, 
either to vert or venison, and cause them to be present
ed, without any concealment, in the next court of attach
ment, etc. 
Boxed weight basis. According to weight at time of 
packing and after wrapping. Swift & Co. v. Wallace, 
C.C.A.7, 105 F.2d 848, 861. 
Boycott Ib6ykot/. Concerted refusal to do business with 
particular person or business in order to obtain conces
sions or to express displeasure with certain acts or 
practices of person or business. Barry v. St. Paul Fire & 
Marine Ins. Co., 555 F.2d 3, 7. 
A conspiracy or confederation to prevent the carrying 
on of business, or to injure the business of any one by 
preventing potential customers from doing busJness with 
BRADY MATERIAL 
him or employing the representatives of said business, 
by threats, intimidation, coercion, etc. Such acts are 
prohibited by the Sherman Antitrust Act. 
Consumer boycott. Practice whereby consumers (i.e. cus
tomers) refrain from purchasing a particular product in 
protest of excessive price, offensive actions of manufac
turer or producer, etc., or refrain from trading with 
particular business for similar reasons. 
Group boycott. Concerted refusal to deal among traders 
with the intent or foreseeable effect of exclusion from 
the market of direct competitors of some of the conspira
tors; or, concerted refusal to deal with the intent or 
foreseeable effect of coercion of the trade practices of 
third parties. Such group boycotts are per se illegal 
under the Sherman Antitrust Act. Jones Knitting Corp. 
v. Morgan, D.C.Pa., 244 F.Supp. 235, 238. 
Primary boycott. See that title. 
Secondary boycott. A combination to exercise coercive 
pressure on customers, actual or prospective, to cause 
them to withhold or withdraw their patronage of a 
certain business or product. See also Secondary boycott. 
Boyd rule. In a corporate reorganization, no junior 
security may be given participation without providing a 
new consideration therefor, unless all securities senior 
to it have received full equivalent of their rights against 
the estate. Phelan v. Middle States Oil Corp., D.C.N.Y., 
124 F.Supp. 728, 781. 
Bozero Ibowserow /. In Spanish law, an advocate; one 
who pleads the causes of others, or his own, before 
courts of justice, either as plaintiff or defendant. Called 
also abogado. 
B.R. An abbreviation for Bancus Regis (King's Bench), 
or Bancus Reginre (Queen's Bench). It is frequently 
found in the old books as a designation of that court. In 
more recent usage, the initial letters of the English 
names are ordinarily employed, i.e., K.B. or Q.B. 
Brabant Ibr�M:nt/. A variety of the old coin known as 
a crocard. 
Brabanter Ibr�M:nt�r/. A mercenary soldier or bandit 
who figured in the Anglo-French wars of the 11th and 
13th centuries, and who came from the old duchy of 
Brabant, now partly comprised in the provinces of Bra
bant in Belgium and of North Brabant in the Nether
lands. 
Bracery Ibreys�riy I. The English statute of 32 Hen. 
VIII, c. 9, to prevent the buying and selling of pretended 
rights or titles, is commonly called "the Bill of Bracery 
and buying of titles." 
Brachium maris Ibreykiy�m mrer�s/. An arm of the 
sea. 
Bracket creep. The process by which inflation pushes 
individuals into higher tax brackets. 
Brady material. "Brady material" is eXCUlpatory infor
mation, material to a defendant's guilt or punishment, 
which government knew about but failed to disclose to 
defendant in time for trial. Defendant is denied due

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BRADY MATERIAL 
process if Government suppresses such material. U.S. 
v. Endicott, C.A.Wash., 803 F.2d 506, 514. Name is 
derived from Brady v. U.S., 373 U.S. 83, 83 S.Ct. 1194, 10 
L.Ed.2d 215. See Fed.R.Crim.P. 16, 26.2. 
Brain death. Numerous states have enacted statutory 
definitions of death which include brain-related criteria. 
For example, many states have adopted the Uniform 
Determination of Death Act. See Death. 
Characteristics of brain death consist of: (1) unrecep
tivity and unresponsiveness to externally applied stimu
li and internal needs; (2) .no spontaneous movements or 
breathing; (3) no reflex activity; and (4) a flat electroen
cephalograph reading after 24 hour period of observa
tion. Com. v. Golston, 373 Mass. 249, 252, 366 N.E.2d 
744. A number of states have adopted this so-called 
"Harvard" definition of brain death, either by statute or 
court decision. 
See also Death (Natural Death Acts). 
Braking distance. Total distance required to stop a 
motor vehicle from time driver recognizes need to stop 
until vehicle is standing still. Factors which control are 
speed of vehicle, weather, road conditions, tires, condi
tion of brakes, etc. Sometimes referred to as stopping 
distance. 
Branch. An offshoot, lateral extension, or subdivision. 
Any member or part of a body (e.g. executive branch of 
government), or system; a department. Division, office, 
or other unit of business located at a different location 
from main office or headquarters. 
A branch of a family stock is a group of persons 
related by descent from a common ancestor, and related 
to the main stock by the fact that that common ancestor 
descends from the original founder or progenitor. 
Branch bank. An office of a bank physically separated 
from . its main office, with common services and func
tions, and corporately part of the bank. Under the 
National Bank Act, term at very least includes any 
place for receiving deposits or paying checks or lending 
money apart from chartered premises. Nebraskans for 
Independent Banking, Inc. v. Omaha Nat. Bank, C.A. 
Neb., 530 F.2d 755, 764. 
"Branch banking" is the operation of one banking 
institution as the instrumentality of another, in which 
the relationship between them is such that they operate 
as a single unit. In Re Cleveland Trust Co. of Lake 
County, 38 Ohio St.2d 183, 311 N.E.2d 854, 859. Branch 
banking is not permitted in certain states. 
"Branch office" of a bank or savings bank includes an 
office, unit, station, facility, terminal, space or recepta
cle at a fixed location other than a principal office, 
however designated, at which any business that may be 
conducted in a principal office of a bank or savings bank 
may be transacted. Included in this definition are off
premises electronic bank facilities. 
Under Uniform Commercial Code, branch bank in
cludes a separately incorporated fo reign branch of bank. 
§ 1-20 1. 
188 
Branch of the sea. This term, as used at common law, 
included rivers in which the tide ebbed and flowed. 
Branch railroad. A lateral extension of a main line; a 
road connected with or issuing from a main line. Feed
er lines. 
Brand. A word, mark, symbol, design, term, or a combi
nation of these, both visual and oral, used for the pur
pose of identification of some product or service. See 
also Trade name. 
Brandeis brief. Form of appellate brief in which eco
nomic and social surveys and studies are included along 
with legal principles and citations and which takes its 
name from Louis D. Brandeis, former Associate Justice 
of Supreme Court, who used such brief while practicing 
law. 
Branding. An ancient mode of punishment by inflicting 
a mark on an offender with a hot iron. A recognized 
punishment for some military offenses. Marking of 
cattle for the purpose of identification. 
Branks. An instrument formerly used in some parts of 
England for the correction of scolds; a scolding bridle. 
Brassage. Government charge for coining metals; cov
ering only the actual cost. Any profit is termed "Seig
norage." 
Brass knuckles or knucks. A weapon worn on the 
hand for the purposes of offense or defense, so made that 
in hitting with the fist considerable damage is inflicted. 
It is called "brass knuckles" because it was originally 
made of brass. The term is now used as the name of the 
weapon without reference to the metal of which it is 
made. 
Brawl. A clamorous or tumultuous quarrel in a public 
place, to the disturbance of the public peace. 
In English law, specifically, a noisy quarrel or other 
uproarious conduct creating a disturbance in a church 
or churchyard. 4 Bl.Comm. 146. 
Breach. The breaking or violating of a law, right, obli
gation, engagement, or duty, either by commission or 
omission. Exists where one party to contract fails to 
carry out term, promise, or condition of the contract. 
Breach of close. The unlawful or unwarrantable entry 
on another person's soil, land, or close. 
Breach of contract. Failure, without legal excuse, to 
perform any promise which forms the whole or part of a 
contract. Prevention or hindrance by party to contract 
of any occurrence or performance requisite under the 
contract for the creation or continuance of a right in 
favor of the other party or the discharge of a duty by 
him. Unequivocal, distinct and absolute refusal to per
form agreement. 
Anticipatory breach. See AntiCipatory breach of contract. 
Breach of warranty. See Breach of warranty. 
Constructive breach. Such breach takes place when the 
party bound to perform disables himself from perform
ance by some act, or declares, before the time comes,

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189 
that he will not perform. The Adamello, D.C.Va., 19 
F.2d 388, 389. See also Anticipatory breach of contract. 
Continu ing breach. Such breach occurs where the state 
of affairs, or the specific act, constituting the breach, , 
endures for a considerable period of time, or is repeated 
at short intervals. 
Efficient breach. Modern contract theory which holds 
that it may be economically efficient to breach a con
tract and pay damages. Seibel v. Liberty Homes, Inc., 
305 Or. 362, 752 P.2d 291, 294. Occurs when the 
breaching party will still profit after compensating the 
other party for its "expectation interest." Thyssen, Inc. 
v. S.S. Fortune Star, C.A.N.Y., 777 F.2d 57, 63. See also 
Patton v. Mid-Continent Systems, Inc., C.A.Ill., 841 F.2d 
742, 750. This theory is not well accepted. 
Material breach. Violation of contract which is substan
tial and significant and which usually excuses the ag
grieved party from further performance under the con
tract and affords a right to sue for damages. 
Partial breach. A violation of a contract as to one part 
only or to a less significant degree than a material 
breach and which gives the aggrieved party a right to 
damages but generally does not excuse his performance. 
Rights and remedies. Parts 6 and 7 of U.C.C. Article 2 
cover rights and remedies of both buyer and seller on 
breach of contract by either. See also Damages; Per
formance (Specific performance). 
Tort action. A tort action may exist for bad faith 
breach of contract as based on breach of the implied 
covenant of good faith and fair dealing. Such actions 
commonly involve insurance contracts. 
Breach of covenant. The nonperformance of any cove
nant agreed to be performed, or the doing of any act 
covenanted not to be done. 
Breach of duty. In a general sense, any violation or 
omission of a legal or moral duty. More particularly, 
the neglect or failure to fulfill in a just and proper 
manner the duties of an office or fiduciary employment. 
Every violation by a trustee of a duty which equity lays 
upon him, whether willful and fraudulent, or done 
through negligence or arising through mere oversight or 
forgetfulness, is a breach of duty. See Non-support. 
Breach of pound. The breaking any pound or place 
where cattle or goods distrained are deposited, in order 
to take them back. 3 BI.Comm. 146. 
Breach of prison. Unauthorized departure of a prisoner 
from legal custody accomplished by the use of force. U. 
S. ex reI. Manzella v. Zimmerman, D.C.Pa., 71 F.Supp. 
534. See Escape. 
Breach of privilege. An act or default in violation of 
the privilege of either house of parliament, of congress, 
or of a state legislature. 
Breach of promise. Violation of a promise; used e.g. as 
an elliptical expression for "breach of promise of mar
riage." 
BREAKING 
Breach of the peace. A violation or disturbance of the 
public tranquillity and order. State v. Boles, 5 Conn. 
Cir. 22, 240 A.2d 920, 927. The offense of breaking or 
disturbing the public peace by any riotous, forcible, or 
unlawful proceeding. Breach of the peace is a generic 
term, and includes all violations of public peace or order 
and acts tending to a disturbance thereof. State v. 
Poinsett, 250 S.C. 293, 157 S.E.2d 570, 571, 572. One 
who commits a breach of the peace is guilty of disorderly 
conduct, but not all disorderly conduct is necessarily a 
"breach of the peace." City of Seattle v. Franklin, 191 
Wash. 297, 70 P.2d 1049, 1051. 
Term signifies disorderly, dangerous conduct disrup
tive of public peace. Great Atlantic & Pac. Tea Co. v. 
Paul, 256 Md. 643, 261 A.2d 731, 739. 
See also Peace; Peace bond. 
Breach of trust. Any act done by a trustee contrary to 
the terms of his trust, or in excess of his authority and 
to the detriment of the trust; or the wrongful omission 
by a trustee of any act required of him by the terms of 
the trust. Also the wrongful misappropriation by a 
trustee of any fund or property which had been lawfully 
committed to him in a fiduciary character. Every viola
tion by a trustee of a duty which equity lays upon him, 
whether willful and fraudulent, or done through negli
gence, or arising through mere oversight and forgetful
ness, is a "breach of trust." The term, therefore, in
cludes every omission and commission in carrying out 
the trust according to its terms, of care and diligence in 
protecting and investing the trust property, and of using 
perfect good faith. A violation by the trustee of any 
duty which he owes to the beneficiary. Bruun v. Han
son, C.C.A .ldaho, 103 F.2d 685, 699. 
Breach of trust with fraudulent intent. Larceny after 
trust. State v. Owings, 205 S.C. 314, 31 S.E.2d 906, 907. 
Breach of warranty. In real property law and the law 
of insurance, the failure or falsehood of an affirmative 
promise or statement, or the nonperformance of an 
executory stipulation. As used in the law of sales, 
breach of warranty, unlike fraud, does not involve guilty 
knowledge, and rests on contract. Under Uniform Com
mercial Code consists of a violation of either an express 
or implied warranty relating to title, quality, content or 
condition of goods sold for which an action in contract 
will lie. U.C.C. § 2-312 et seq. See Warranty. 
Breakage. Allowance given by manufacturer to buyer 
for breakage damage caused while in transit or storage. 
Also, fractional amounts (e.g. pennies) due either party 
as for example in computing interest on loan or deposits. 
Breaking. Forcibly separating, parting, disintegrating, 
or piercing any solid substance. In the criminal law as 
to housebreaking and burglary, it means the tearing 
away or removal of any part of a house or of the locks, 
latches, or other fastenings intended to secure it, or 
otherwise exerting force to gain an entrance, with crimi
nal intent; or violently or forcibly breaking out of a 
house, after having unlawfully entered it, in the attempt 
to escape. Actual "breaking" involves application of 
some force, though the slightest force is sufficient; e.g.

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BREAKING 
an actual "breaking" may be made by unloosening, 
removing or displacing any covering or fastening of the 
premises, such as lifting a latch, drawing a bolt, raising 
an unfastened window, or pushing open a door kept 
closed by its own weight. Sparkman v. State, 3 Md.App. 
527, 240 A.2d 328, 331. Even the opening of a closed 
and unlocked door or window is sufficient to constitute a 
"breaking" within terms of statute, so long as it is done 
with a burglarious intent. State v. Sanderson, Mo.App., 
528 S.W.2d 527, 531. See Burglary. 
Breaking a case. The expression by the judges of a 
court, to one another, of their views of a case, in order to 
ascertain how far they are agreed, and as preliminary to 
the formal delivery of their opinions. Sometimes used 
by crime investigators to announce the solution of a 
crime with the apprehension of the principal suspect. 
Breaking a close. Unlawful entry upon land of another 
(common law trespass). 
Breaking and entry. Term used to describe the neces
sary elements of common law burglary which consisted 
of breaking and entering dwelling of another in night
time with intent to commit a felony therein. Statutory 
forms of burglary consist in variations of the common 
law crime, e.g. entering without breaking with intent to 
commit misdemeanor. See Breaking; Burgla ry. 
Breaking bail. Historically, crime committed by bailee 
who broke open a package (bale) though no crime was 
committed if he converted the whole package without 
breaking the bulk. See Breaking bulk. 
Breaking bulk. The offense committed by a bailee 
(particularly a carrier) in opening or unpacking the 
chest, parcel, or case containing goods intrusted to his 
care, and removing the goods and converting them to his 
own use. See also Breaking bail. 
Breaking doors. Forcibly removing the fastenings of a 
house, so that a person may enter. See Breaking. 
Breaking into. Breaking with burglarious intent. 
State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 946. See 
Breaking. 
Breaking jail. The act of a prisoner in effecting his 
escape from a place of lawful confinement. See Breach 
of prison. 
Breast of the court. A metaphorical expression signify
ing the conscience, discretion, or recollection of the 
judge. 
Breathalyzer test. Test to determine content of alcohol 
in one arrested for operating motor vehicle under influ
ence of liquor. The results of such test, if properly 
administered, are admissible evidence. See, e.g., People 
v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172. See 
Consent (Implied consent). See also Blood test evidence; 
Field sobriety tests; Intoxilyzer; Intoximeter. 
Breath specimen. Sample of one's breath used in test
ing for alcoholic content. See Breathalyzer test. 
190 
Bredwite Ibroow;}t/. In Saxon and old English law, a 
fine, penalty, or amercement imposed for defaults in the 
assise of bread. 
Breed. Produce (offspring) by hatching or gestation; to 
hatch. Miller Hatcheries v. Boyer, C.C.A.l owa, 131 F.2d 
283, 287. Number of persons of the same stock. 
Brehon Ibriy;}n/. In old Irish law, a judge. 1 Bl.Comm. 
100. Brehons (breitheamhuin ), judges. 
Brehon law Ibriy;}n 16/. The name given to the ancient 
system of law of Ireland as it existed at the time of its 
conquest by Henry II. 
Brenagium Ibr;}neyjiy;}mI . A payment in bran, which 
tenants anciently made to feed their lords' hounds. 
Brephotrophi Ibref;}trowfay/. In the civil law, persons 
appointed to take care of houses destined to receive 
foundlings. 
Brethren. Plural of brother; though this word, in a will, 
may include sisters, as well as brothers, of the person 
indicated; it is not necessarily limited to the masculine 
gender. 
Brethren of Trinity House. See Elder brethren. 
Bretts and Scotts, Laws of the. A code or system of 
laws in use among the Celtic tribes of Scotland down to 
the beginning of the fourteenth century, and then abol
ished by Edward I. of England. 
Breve Ibriyviy I. L. Lat. A writ. An original writ. A 
writ or precept of the king issuing out of his courts. A 
writ by which a person was summoned or attached to 
answer an action, complaint, etc., or whereby anything 
was commanded to be done in the courts, in order to 
justice, etc. 
Breve de recto Ibriyv(iy) diy rektow/. A writ of right, 
or license for a person ejected out of an estate, to sue for 
the possession of it. 
Breve innominatum Ibriyv(iy) ;}nom;}neyt;}m/. A writ 
making only a general complaint, without the details or 
particulars of the cause of action. 
Breve ita dicitur, quia rem de qua agitur, et inten
tionem petentis, paucis verbis breviter enarrat 
Ibriyriy ilyt;} dis;}t;}r kwily;} rem diy kwey rej;}t;}r, ed 
intenshiyown;}m p;}tent;}s, POS;}s v;)rb;}s brev;}t;}r enrer;}t/. 
A writ is so called because it briefly states, in few words, 
the matter in dispute, and the object of the party seek
ing relief. 
Breve judiciale debet sequi suum originale, et acces
sorium suum principale Ibriyviy juwdishiyeyliy deb;}t 
sekway s(y)uw;}m ;}hrij;}neyliy, ed reks;}soriy;}m s(y)uw;}m 
prins;}peyliy/. A judicial writ ought to follow its origi
nal, and an accessory its principal. 
Breve judiciale non cadit pro defectu formre Ibriyv(iy) 
j;}dishiyeyliy non kred;}t prow d;}fekt(y)uw formiy/. A 
judicial writ fails not through defect of form. 
Breve nominatum Ibriv(iy) no(w)m;}neyt;}m/. A named 
writ. A writ stating the circumstances or details of the

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191 
cause of action, with the time, place, and demand, very 
particularly. 
Breve originale ibriyv(iy) �rij:meyliy I. An original 
writ; a writ which gave origin and commencement to a 
suit. 
Breve perquirere Ibriyv(iy) p�rkwayr�riy/. To pur
chase a writ or license of trial in the king's courts by the 
plaintiff. 
Brevet Ibrev�t/br�vet/. In military law, a commission 
by which an officer is promoted to the next higher rank, 
but without conferring a right to a corresponding in
crease of pay. 
In French law, a privilege or warrant granted by the 
government to a private person, authorizing him to take 
a special benefit or exercise an exclusive privilege. 
Thus a brevet d'invention is a patent for an invention. 
Breve testatum Ibriyv(iy) testeyt�m/. A written memo
randum introduced to perpetuate the tenor of the con
veyance and investiture of lands. 2 Bl.Comm. 307. 
Brevia Ibriyviy�/. Lat. The plural of breve. 
Brevia adversaria /briyviy� redv�rseriy�/. Adversary 
writs; writs brought by an adversary to recover land. 
Brevia amicabilia Ibriyviy� rem�k�biliy�/. Amicable or 
friendly writs; writs brought by agreement or consent of 
the parties. 
Brevia anticipantia /briyviy� rentis�prensh(iy)�/. At 
common law, anticipating or preventive writs. Six were 
included in this category, viz.: Writ of mesne; warrantia 
chartre; monstraverunt; audita querela; curia clauden
da; and ne in juste vexes. 
Brevia de cursu Ibriyviy� diy k�rsyuw/. Writs of 
course. Formal writs issuing as of course. 
Brevia formata /briyviy� formeyt�/. Certain writs of 
approved and established form which were granted of 
course in actions to which they were applicable, and 
which could not be changed but by consent of the great 
council of the realm. 
Brevia judicialia Ibriyviy� juwdishiyeyliy�/. Judicial 
writs. Auxiliary writs issued from the court during the 
progress of an action, or in aid of the judgment. 
Brevia magistralia Ibriyviy� mrej�streyliy�/. Writs oc
casionally issued by the masters or clerks of chancery, 
the form of which was varied to suit the circumstances 
of each case. 
Breviarium alaricianum Ibriyviyer�m rel�rish(i)yeyn�
mi. A compilation of Roman law made by order of 
Alaric II., king of the Visigoths, in Spain, and published 
for the use of his Roman subjects in the year 506. It is 
also known as Lex Romana Visigothorum. It became 
the principal, if not the only, representative of Roman 
law among the Franks. 
Breviarium aniani Ibriyviyer�m reniyeynay I. Another 
name for the Brevarium Alaricianum, (q.v.) Anian was 
the referendery or chancellor of Alaric, and was com-
BRIBERY 
manded by the latter to authenticate, by his signature, 
the copies of the breviary sent to the comites. 
Brevia selecta Ibriyviy� s�lekt�/. Choice or selected 
writs or processes. Often abbreviated to Brev. Sel. 
Brevia, tam originalia quam judicialia, patiuntur 
anglica nomina Ibriyviy� trem �rij�neyliy� kwrem 
juwdishiyeyliy� preshiy�nt�r reIJgbk� n6(w)m�n�/. 
Writs, as well original as judicial, bear English names. 
Breviate /briyviy�t/. A brief; brief statement, epitome, 
or abstract. A short statement of contents, accompany
ing a bill in parliament. The name is usually applied to 
the famous brief of Mr. Murray (afterwards Lord Mans
field) for the complainant in the case of Penn v. Lord 
Baltimore, 1 Ves. 444. 
Brevia testata Ibriyviy� testeyt�/. The name of the 
short memoranda early used to show grants of lands out 
of which the deeds now in use have grown. 
Brevibus et rotulis liberandis Ibriyv�b�s et r6ty�l�s 
lib�rrend�s/. A writ or mandate to a sheriff to deliver to 
his successor, the county, and appurtenances, with the 
rolls, briefs, remembrance, and all other things belong
ing to his office. 
Brewer. One who manufactures fermented liquors, for 
sale, from malt, wholly or in part, or from any substitute 
therefor. 
Bribe. Any money, goods, right in action, property, 
thing of value, or any preferment, advantage, privilege 
or emolument, or any promise or undertaking to give 
any, asked, given, or accepted, with a corrupt intent to 
induce or influence action, vote, or opinion of person in 
any public or official capacity. See e.g. Calif. Penal Code 
§ 7. A gift, not necessarily of pecuniary value, bestowed 
to influence the conduct of the receiver. See also Brib
ery; Kickback; Solicitation of bribe. 
Bribery. The offering, giving, receiving, or soliciting of 
something of value for the purpose of influencing the 
action of an official in the discharge of his or her public 
or legal duties. Allen v. State, 63 Okl.Cr. 16, 72 P.2d 
516, 519. The corrupt tendering or receiving of a price 
for official action. State v. London, 194 Wash. 458, 78 
P.2d 548, 554. The receiving or offering any undue 
reward by or to any person concerned in the administra
tion of public justice or a public officer to influence his 
behavior in office. Any gift, advantage, or emolument 
offered, given, or promised to, or asked or accepted by, 
any public officer to influence his behavior in office. 
Model Penal Code § 240.1. The federal statute includes 
any "officer or employee or person acting for or on 
behalf of the United States, or any department or agen
cy or branch of government thereof, . . in any 
official function". 18 U.S.C.A. § 201. 
Any direct or indirect action to give, promise or offer 
anything of value to a public official or witness, or an 
official's or witness' solicitation of something of value is 
prohibited as a bribe or illegal gratuity. 18 U.S.C. 
§ 20 1. 
At common law, the gist of the offense was the tend
ency to pervert justice; the offering, giving, receiving or

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BRIBERY 
soliciting of anything of value to influence action as a 
public official; corrupt agreement induced by offer of 
reward. The term now, however, extends to many 
classes of officers and is not confined to judicial officers; 
it applies both to the actor and receiver, and extends to 
voters, legislators, sheriffs, and other classes. All per
sons whose official conduct is connected with the admin
istration of the government are sub jects; including per
sons acting under color of title to office. State v. Lon
don, 194 Wash. 458, 78 P.2d 548. 
I.R.C. § 162 denies a deduction for bribes or kickbacks. 
Commercial bribery. Commercial bribery, as related to 
unfair trade practices, is the advantage which one com
petitor secures over his fellow competitors by his secret 
and corrupt dealing with employees or agents of pro
spective purchasers. American Distilling Co. v. Wiscon
sin Liquor Co., C.C.A.Wis., 104 F.2d 582. 
Bribery at elections. The offense committed by one 
who gives or promises or offers money or any valuable 
inducement to an elector, in order to corruptly induce 
the latter to vote in a particular way or to abstain from 
voting, or as a reward to the voter for having voted in a 
particular way or abstained from voting. See 18 U.S. 
C.A. § 597. 
Bribour /brayb�r /. One that pilfers other men's goods; 
a thief. 
Bridewell. In England, a house of corrections. 
Bridge loan. A loan which is for short duration until 
more permanent financing is arranged; e.g., person 
might obtain a bridge loan to purchase real estate and 
build house before final mortgage financing or the sale 
of presently held assets can be accomplished; or, firm 
might utilize bridge loans to finance merger or lever
aged buyout until bonds can be issued or other long-term 
financing secured. 
Bridge securities. Type of security issued to finance 
bridges; usually secured by a lien thereon. 
Brief. A written document; a letter; a writing in the 
form of a letter. A summary, abstract, or epitome. A 
condensed statement or epitome of some larger doc
ument, or of a series of papers, facts and circumstances, 
or propositions. 
A written statement prepared by the counsel arguing 
a case in court. It contains a summary of the facts of 
the case, the pertinent laws, and an argument of how 
the law applies to the facts supporting counsel's posi
tion. A summary of a published opinion of a case 
prepared by law student. See also Legal brief. 
Appellate brief. Written arguments by counsel required 
to be filed with appellate court on why the trial court 
acted correctly (appellee's brief) or incorrectly (appel
lant's brief). While the contents and form of such briefs 
are normally prescribed by rule of court, commonly such 
contain: statement of issues presented for review, state
ment of the case, an argument (with authorities), a 
conclusion stating the precise relief sought. See e.g. 
Fed.Rule App.Proc. 28. 
192 
Trial brief. Document prepared for and used by attor
ney at trial which contains, among other things, issues 
to be tried, synopsis of evidence and witnesses to be 
presented, and case and statutory authority for the 
position of counsel at trial. Frequently, copies of the 
trial briefs are required to be furnished to the trial 
judge. 
Brigandage /brig�nd�j/. Robbery and banditry as 
perpetrated by a band of robbers or brigands; plunder
ing and outlawry. 
Bring. To convey to the place where the speaker is or is 
to be; to bear from a more distant to a nearer place; to 
make to come, procure, produce, draw to; to convey, 
carry or conduct, move. To cause to be, act, or move in 
a special way. The doing of something effectual. The 
bringing of someone to account, or the accomplishment 
of some definite purpose. 
Bring about. To procure; implies completion. Jackson 
v. Thompson, Tex.Civ.App., 74 S.W.2d 1055, 1057. 
Bringing money into court. The act of depositing 
money in the custody of a court or of its clerk or 
marshal, for the purpose of satisfying a debt or duty, or 
to await the result of an interpleader. See e.g. Fed.R. 
Civil P. 67. 
Bring into. To import; to introduce. 
Bring suit. To "bring" an action or suit has a settled 
customary meaning at law, and refers to the initiation 
of legal proceedings in a suit. Lake & Co. v. King 
County, 4 Wash.2d 651, 104 P.2d 599, 601. A suit is 
"brought" at the time it is commenced. Goldenberg v. 
Murphy, 108 U.S. 162, 2 S.Ct. 388, 27 L.Ed. 686. 
"Brought" and "commenced" in statutes of limitations 
are commonly deemed to be synonymous. Under the 
Federal Rules of Civil Procedure, and also most state 
courts, a civil action is commenced by filing a complaint 
with the court. Rule 3. See also Commence. 
Under Fed. Rules of Civil Proc., term "suit" has been 
replaced by "action". See Rule 2. 
Bring up. Nurse, rear, and educate child until full age. 
In re Bamber's Estate, 147 Misc. 712, 265 N.Y.S. 798. 
Bristol bargain. In English law, a contract by which A. 
lends B. £1,0 00 on good security, and it is agreed that 
£500, together with interest, shall be paid at a time 
stated; and, as to the other £500, that B., in considera
tion thereof, shall pay to A. £100 per annum for seven 
years. 
British subject. The status conferred upon persons who 
are citizens of the United Kingdom and Commonwealth 
of Canada, Australia, New Zealand, India, etc. under the 
British Nationality Act, 1981, § 51(1)(6). 
British thermal unit (B.T.V.). The amount of heat 
required to raise a pound of water one degree Fahren
heit. 
Broad interpretation. That interpretation of Constitu
tion or statute which, brushing aside minor objections 
and trivial technicalities, effectuates intent of act. In re 
Senate Resolution No. 2 Concerning Constitutionality of

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193 
House Bill No. 6, 94 Colo. 101, 31 P.2d 325, 332. A 
meaning given to a constitutional provision or statute 
which is designed to effectuate the intent of the law as 
contrasted with a "narrow" interpretation which may 
fail to do so. Giving to a law a meaning which is not 
necessarily included in a literal application of the words 
of the law. 
Broadside objection. A general objection interposed 
without specifying grounds thereof. 
Brocage Ibrowkaj/. The wages, commission, or pay of a 
broker (also called "brokerage"). Also the avocation or 
business of a broker. 
Brocard Ibrowkard/. In old English law, a legal maxim. 
"Brocardica Juris," the title of a small book of legal 
maxims, published at Paris, 1508. 
Brocarius, brocator Ibrowkeriyas/browkeytar/. In old 
English and Scotch law, a broker; a middleman between 
buyer and seller; the agent of both transacting parties. 
Broken. Impoverishment. Walsh v. Kennedy, 115 
Mont. 551, 147 P.2d 425, 430. See In digent. 
Broken lot. Odd lot; less than the usual unit of mea
surement or unit of sale; e.g. less than 100 shares of 
stock. 
Broken stowage. In maritime law, that space in a ship 
which is not filled by her cargo. 
Broker. An agent employed to make bargains and con
tracts for a compensation. A dealer in securities issued 
by others. White v. Financial Guarantee Corporation, 
13 CaLApp.2d 93, 56 P.2d 550, 553. A middleman or 
negotiator between parties. A person dealing with an
other for sale of property. A person whose business it is 
to bring buyer and seller together. One who is engaged 
for others, on a commission, to negotiate contracts rela
tive to property. North Carolina Real Estate Licensing 
Board v. Aikens, 31 N.C.App. 8, 228 S.E.2d 493, 496. An 
agent of a buyer or a seller who buys or sells stocks, 
bonds, commodities, or services, usually on a commission 
basis. The term extends to almost every branch of 
business, to realty as well as personalty. 
Ordinarily, the term is applied to one acting for others 
but is also applicable to one in business of negotiating 
purchases or sales for himself. 
For distinction between "commission merchant" and 
"broker," see Commission merchant. For "Factor" and 
"broker" as synonymous or distinguishable, see Factor. 
See also Commercial broker; Commission broker; Cus
toms broker; Exchange broker; Pawnbroker. 
Broker-agent. One licensed to act both as broker and 
agent. 
Broker-dealer. A securities brokerage firm, usually reg
istered with the S.E.C. and with the state in which it 
does business, engaging in the business of buying and 
selling securities to or for customers. 
Institutional broker. Brokers who trade (buy and sell) 
securities for institutional clients-mutual funds, banks, 
pension funds, insurance companies. 
BROKERAGE LISTING 
Insurance broker. Person who obtains insurance for 
individuals or companies from insurance companies or 
their agents. Differs from an insurance agent in that he 
does not represent any particular company. 
Merchandise brokers. Buyers and sellers of goods and 
negotiators between buyer and seller, but without hav
ing the custody of the property. 
Money broker. A money-changer; a scrivener or jobber; 
one who lends or raises money to or for others. 
Note broker. Negotiators of the discount or sale of 
commercial paper. 
Real estate broker. Persons who procure the purchase 
or sale of land, acting as intermediary between vendor 
and purchaser, and who negotiate loans on real-estate 
security, manage and lease estates, etc. Latta v. Kilb
ourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169. A 
broker employed in negotiating the sale, purchase, lease, 
or exchange of lands on a commission contingent on 
success. A person engaged in business to such an extent 
that it is his vocation or partial vocation. See Listing. 
Securities broker. Brokers employed to buy and sell for 
their principals stocks, bonds, government securities, 
etc. Any person engaged in the business of effecting 
transactions in securities for the account of others, but 
does not include a bank. Securities Exchange Act of 
1934, § 3. A person engaged for all or part of his time 
in the business of buying and selling securities, who in 
the transaction concerned, acts for, or buys a security 
from or sells a security to a customer. U.C.C. § 8-303. 
A person who acts as an agent for a buyer or seller, or 
an intermediary between a buyer and seller, usually 
charging a commission. A broker who specializes in 
shares, bonds, commodities or options must be registered 
with the exchange where the specific securities are 
traded. A broker should be distinguished from a securi
ties dealer who, unlike the broker, is in the business of 
buying or selling for his own account. See also Broker
dealer, above. 
Brokerage. The wages or commissions of a broker; also, 
his business or occupation. 
Brokerage contract. A contract of agency, whereby 
broker is employed to make contracts of kind agreed 
upon in name and on behalf of his principal, and for 
which he is paid an agreed commission. A unilateral 
contract wherein the principal makes an offer which is 
interpreted as promise to pay broker a commission in 
consideration of his producing a buyer ready, able, and 
willing to buy the property on the principal's terms. In 
re Cowan's Estate, Sur., 13 N.Y.S.2d 374, 376. See also 
Brokerage listing, infra. 
Brokerage listing. An offer of a unilateral contract, the 
act requested being the procuring by the broker of a 
purchaser ready, able and willing to b uy upon the terms 
stated in the offer. Buckaloo v. Johnson, 14 CaL3d 815, 
122 Cal.Rptr. 745, 753, 537 P.2d 865. See also Brokerage 
contract; Listing.

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BROSSUS 
Brossus Ibros;}s/. Bruised, or injured with blows, 
wounds, or other casualty. 
Brothel Ibr60;}I/. A bawdy-house; a house of ill fame; a 
common habitation of prostitutes. 
Brother. One person is a brother "of the whole blood" to 
another, the former being a male, when both are born 
from the same father and mother. He is a brother "of 
the half blood" to that other (or half-brother) when the 
two are born to the same father by different mothers or 
by the same mother to different fathers. 
In the civil law, the following distinctions are ob
served: Two brothers who descend from the same fa
ther, but by different mothers, are called "consanguine" 
brothers. If they have the same mother, but are begot
ten by different fathers, they are called "uterine" broth
ers. If they have both the same father and mother, they 
are denominated brothers "germane." 
Brother-in-law. The brother of one's spouse; the hus
band of one's sister; the husband of one's spouse's sister. 
Brother-sister corporation. More than one corporation 
owned by the same shareholders. If, for example, C and 
D each owned one-half of the stock in X Corporation and 
Y Corporation, X and Y are brother-sister corporations. 
Two or more corporations owned and effectively con
trolled by one or more individuals, and where these 
corporations are involved, earnings can be transferred 
between them only through common shareholder or 
shareholders, who will be subject to progressive individ
ual income tax. Inland Terminals, Inc. v. U. S., C.A. 
Md., 477 F.2d 836, 840. 
Brought. Taken; carried. Past tense of "bring." See 
Bring suit, supra. 
Brought in question upon the record. The constitu
tionality of an act is "brought in question upon the 
record" when it is clearly questioned by the allegation of 
any pleading, or by any other formal objection filed in 
the case. Brosco v. Frost, 63 R.1. 1, 6 A.2d 705, 706. 
Brought to the attention of. Equivalent to the expres
sion "made known to." 
Brown decision. Supreme Court decision which de
clared racial segregation in public schools to be in viola
tion of equal protection clause of Fourteenth Amend
ment. Brown v. Board of Education of Topeka, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873. See also Separate but 
equal doctrine. 
Brown decree. A decree which terminates marriage 
without specifying in whose favor issue as to grounds for 
divorce was decided. Spector v. Spector, 94 Ariz. 175, 
382 P.2d 659. 
Bruton error. Type of error that arises in joint trial by 
admission of confession of codefendant implicating de
fendant, where codefendant did not testify and defen
dant maintained his innocence. Cochran v. State, 177 
Ga.App. 471, 339 S.E.2d 749, 750. Name is derived from 
Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 
476. 
194 
Brutum fulmen Ibruwt;}m f�lm;}n/. An empty noise; an 
empty threat. A judgment void upon its face which is in 
legal effect no judgment at all, and by which no rights 
are divested, and from which none can be obtained, and 
neither binds nor bars anyone. Dollert v. Pratt-Hewitt 
Oil Corporation, Tex.Civ.A pp., 179 S.W.2d 346, 348. 
B.S. Bancus Superior, that is, upper bench. Bachelor of 
Science, a collegiate degree. 
B.T.A. See Board of Tax Appeals. 
B.T.U. British Thermal Unit (q.v.). 
Bubble. An extravagant or unsubstantial project for 
extensive operations in business or commerce, generally 
founded on a fictitious or exaggerated prospectus, to 
ensnare unwary investors. Companies formed on such a 
basis or for such purposes are called "bubble compa
nies". The term is chiefly used in England. 
Bubble Act. English Act (1720-1825) drafted to prevent 
incorporation of English businesses. See also Bubble. 
Bucketing. Receipt of orders to purchase and sell stock 
without intention of actually executing such orders. 
Bucket shop. An office or place (other than a regularly 
incorporated or licensed exchange) where persons en
gage in pretended buying and selling of securities or 
commodities; e.g. broker accepts orders to buy or sell 
but never actually executes such. 
Budget. A statement of estimated revenues and ex
penses for a specified period of time, generally a year. 
A balanced budget is one in which revenues equals or 
exceeds expenditures. Also, sum of money allocated to 
a particular purpose or project, or for a specified period 
of time. See also Capital (Capital budget); Cash budget; 
Operating budget. 
Budget system. A system by which income and expend
itures are balanced for a definite period of time. 
Buffer-zone. Term used in zoning and land use law to 
describe area separating two different types of zones or 
classes of areas to make each blend more easily with 
each other; e.g. strip of land between industrial and 
residential areas. 
Buggery. A carnal copUlation against nature; a man or 
a woman with a brute beast, a man with a man, or man 
unnaturally with a woman. This term is often used 
interchangeably with "sodomy." 
Bugging. Form of electronic surveillance by which con
versations may be overheard and recorded; regulated 
strictly by federal and state statute for use by law 
enforcement officers. See also Eavesd ropping; Wi retap
ping. 
Builder. One whose occupation is the building or erec
tion of structures, the controlling and directing of con
struction, or the planning, constructing, remodeling and 
adapting to particular uses buildings and other struc
tures. One who puts, or contracts to put, a structure 
into permanent form. 
Building. Structure designed for habitation, shelter, 
storage, trade, manufacture, religion, business, edu
cation, and the like. A structure or edifice inclosing a

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195 
space within its walls, and usually, but not necessarily, 
covered with a roof. Netter v. Scholtz, 282 Ky. 493, 138 
S.W.2d 951, 953. 
Building and loan association. An organization for 
the purpose of accumulating a fund by subscriptions and 
savings of its members to assist them in building or 
purchasing for themselves dwellings or real estate by 
the loan to them of the requisite money. Quasi public 
corporations chartered to encourage thrift and promote 
ownership of homes. Hopkins Federal Savings & Loan 
Ass'n v. Cleary, Wis., 296 U.S. 315, 56 S.Ct. 235, 237, 
241, 80 L.Ed. 251. Such associations are not commercial 
banks, nor, in most states, are such classified as savings 
banks or savings institutions; though in many states 
such is a special type or variety of savings and loan 
association. See also Savings and loan association. 
Building code. Laws, ordinances, or government regu
lations concerning fitness for habitation setting forth 
standards and requirements for the construction, main
tenance, operation, occupancy, use or appearance of 
buildings, premises, and dwelling units. While many 
codes are local in nature and scope, many states have 
uniform codes which all local municipalities must ad
here to. In addition, FHA financed real estate must 
meet certain building code requirements. 
Building is covered. Phrase in a binder or contract of 
temporary insurance meaning that the property shall be 
insured in the standard form of insurance from that 
instant for a reasonable time until either the policy or 
policies can be written out, or their issuance approved or 
disapproved or some other temporary impediment to the 
complete formal contract of insurance can be removed. 
Shumway v. Home Fire & Marine Ins. Co. of California, 
301 Mass. 391, 17 N.E.2d 212, 214. 
Building lien. The statutory lien of a materialman or 
contractor for the erection of a building. See Mechanic's 
lien. 
Building line. A line established by municipal authori
ty, to secure uniformity of appearance in the streets of 
the city, drawn at a certain uniform distance from the 
curb or from the edge of the sidewalk, and parallel 
thereto, upon which the fronts of all buildings on that 
street must be placed, or beyond which they are not 
allowed to project. Often referred to as the "set-back" 
requirement. 
Building loan agreement. An agreement by which one 
undertakes to advance to another money to be used 
primarily in erection of buildings. Such funds are nor
mally used by the borrower to pay the contractor, sub
contractors and materialmen; and such funds are com
monly advanced in installments as the structure is com
pleted. The lender's security is normally the structure 
being erected. Also called interim or construction fi
nancing. See Bridge loan. 
Building permit. Authorization required by local gov
ernmental bodies for new building, or major alteration 
or expansion of existing structures. Building plans, 
estimated costs, etc., and a fee, are usually required 
BULL 
before such is issued. Such permit is normally required 
to be displayed on the construction site. 
Building restrictions. Regulations or restrictions (com
monly in zoning ordinances) upon the type of structure 
that can be constructed on one's property. Such restric
tions may also be created in the form of restrictive 
covenants in deeds. See Building code. 
Building society. An association in which the subscrip
tions of the members form a capital stock or fund out of 
which advances may be made to members desiring 
them, on mortgage security. See Building and loan asso
ciation. 
Bul. In the ancient Hebrew chronology, the eighth 
month of the ecclesiastical, and the second of the civil 
year. It has since been called "Marshevan, " and an
swers to our October. 
Bulk. Unbroken packages. Merchandise which is nei
ther counted, weighed, nor measured. The aggregate 
that forms a body or unit. When used in relation to sale 
of goods by sample, "bulk" means the whole quantity of 
goods sold, which is supposed to be fairly represented by 
the sample. 
Bulk mortgage. A mortgage on property in bulk. May 
describe creation of security interest in several items as 
a whole or in bulk, or a mortgage of more than one 
parcel of real estate, though a bulk transfer is not a 
security interest subject to Art. 9 of U.C.C., § 9- 111. 
Bulk sale. Any transfer in bulk, and not in the ordinary 
course of the transferor's business, of a major part of the 
materials, supplies, merchandise or other inventory of 
an enterprise. U.C.C. § 6--102(1). Such transfers are 
regulated by U.C.c. Article 6 to protect creditors of the 
transferor. See Bulk Sales Acts, infra. 
A sale of substantially all the inventory of a trade or 
business to one person in one transaction. Under cer
tain conditions, corporations making a bulk sale pursu
ant to a complete liquidation will recognize neither gain 
nor loss on such sale. I.R.C. § 337(b)(2). 
Bulk Sales Acts. A class of statutes designed to prevent 
the defrauding of creditors by secret sale in bulk of all 
or substantially all of a merchant's stock of goods. Indi
vidual state bulk sales acts have been superseded by 
Art. 6 of U.C.C., "Bulk Transfers". 
Bulk transfers. See Bulk sale; Bulk Sales Acts, supra. 
Bull. In ecclesiastical law, an instrument granted by the 
Pope of Rome, and sealed with a seal of lead, containing 
some decree, commandment, or other public act, ema
nating from the pontiff. Bull, in this sense, corresponds 
with edict or letters patent from other governments. 
There are three kinds of apostolical rescripts-the 
brief, the signature, and the bull; which last is most 
commonly used in legal matters. 
Also, the slang term for an investor who anticipates 
that the stock market will rise; as contrasted with a 
"bear" who believes it will falL

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BULLA 
Bulla /bul;}/. A seal used by the Roman emperors, 
during the lower empire; it was of four kinds,-gold, 
silver, wax, and lead. 
Bullet. Synonymous with "shot," meaning a projectile 
particularly a solid ball or bullet that is not intended to 
fit the bore of a piece. 
Bulletin. An officially published notice or announce
ment concerning the progress of matters of public im
portance and interest. A brief news item of immediate 
publication. The publication (organ) of an institution or 
association. 
Bulletin des lois /bul;}tren dey lwa/. In France, the 
official sheet which publishes the laws and decrees; this 
publication constitutes the promulgation of the law or 
decree. 
Bull-headed. Headstrong, obstinate, unreasonably stub
born. 
Bullion. Gold and silver intended to be coined. 
"Bullion" encompasses, at the very least, any solid 
mass of uncoined gold or silver whatever its shape so 
long as its shape does not enhance its value. U. S. 
Smelting Refining & Mining Co. v. Aetna Cas. & Sur. 
Co., D.C.N.Y., 372 F.Supp. 489, 494. 
Bullion fund. A fund of public money maintained in 
connection with the mints, for the purpose of purchasing 
precious metals for coinage, and also of enabling the 
mint to make returns of coins to private depositors of 
bullion without waiting until such bullion is actually 
coined. 
Bull market. Securities term for a market in which 
prices are rising or are expected to rise. 
Bull pen. A certain place of close confinement at a 
penitentiary. 
Bum-bailiff. A person employed to dun one for a debt; 
a bailiff employed to arrest a debtor. Probably a vulgar 
corruption of "bound-bailiff' (q. v.). 
Bumping. Displacement of a junior employee's position 
by a senior employee; commonly occurring during peri
ods of layoff. The practice of failing to board ticketed 
passengers due to oversale of the scheduled flight. Ma
son v. Belieu, C.A.D.C., 543 F.2d 215, 219. 
Bunco game /b�lJkow geym/. Any trick, artifice, or 
cunning calculated to win confidence and to deceive, 
whether by conversation, conduct, or suggestion. A 
swindling game or scheme. 
Bunda /b�nd;}/. In old English law, a bound, boundary, 
border, or limit (terminus, limes). 
Bunkhouse rule. This rule means that an injury suf
fered while the employee is reasonably using the em
ployer's housing is within the course of employment 
even if the injury occurs during off-duty hours. D.E.S. 
Youth Conservation Corps v. Industrial Commission of 
Arizona, App., 129 Ariz. 235, 630 P.2d 58, 60. 
Buoy /b6y/buwiy /. A floating object intended as a guide 
and warning to mariners, by marking a spot where the 
196 
water is shallow, or where there is a reef or other 
danger to navigation, or to mark the course of a chan
nel. Buoys are regulated by federal statutes. 
Burden. Capacity for carrying cargo. Something that is 
carried. Something oppressive or worrisome. A bur
den, as on interstate commerce, means anything that 
imposes either a restrictive or onerous load upon such 
commerce. 
Burden of going forward. The onus on a party to a 
case to refute or to explain as in the case of one who is 
charged with possession of stolen goods after the govern
ment has introduced evidence of the defendant's recent 
possession of such goods, the inference being that the 
defendant knew the goods to have been stolen. Barnes 
v. U. S., 412 U.S. 837, 846, n. 11, 93 S.Ct. 2357, 2363, 37 
L.Ed.2d 380. 
Burden of persuasion. The onus on the party with the 
burden of proof to convince the trier of fact of all 
elements of his case. In criminal case the burden of the 
government to produce evidence of all the necessary 
elements of the crime beyond a reasonable doubt. In re 
Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 
L.Ed.2d 368. See also Burden of proof. 
Burden of producing evidence. The obligation of a 
party to introduce evidence sufficient to avoid a ruling 
against him on the issue. Calif.Evid.Code. Such burden 
is met when one with the burden of proof has introduced 
sufficient evidence to make out a prima facie case, 
though the cogency of the evidence may fall short of 
convincing the trier of fact to find for him. The burden 
of introducing some evidence on all the required ele
ments of the crime or tort or · contract to avoid the 
direction of a verdict against the party with the burden 
of proof. Stuart v. D. N. Kelley & Son, 331 Mass. 76, 
117 N.E.2d 160. 
Burden of proof. (Lat. onus probandi.) In the law of 
evidence, the necessity or duty of affirmatively proving 
a fact or facts in dispute on an issue raised between the 
parties in a cause. The obligation of a party to establish 
by evidence a requisite degree of belief concerning a fact 
in the mind of the trier of fact or the court. 
Burden of proof is a term which describes two differ
ent concepts; first, the "burden of persuasion", which 
under traditional view never shifts from one party to 
the other at any stage of the proceeding, and second, the 
"burden of going forward with the evidence", which may 
shift back and forth between the parties as the trial 
progresses. Ambrose v. Wheatley, D.C.Del., 321 F.Supp. 
1220, 1222. 
The burden of proof may require a party to raise a 
reasonable doubt concerning the existence or nonex
istence of a fact or that he establish the existence or 
nonexistence of a fact by a preponderance of the evi
dence, by clear and convincing proof, or by proof beyond 
a reasonable doubt. Except as otherwise provided by 
law, the burden of proof requires proof by a preponder
ance of the evidence. Calif.Evid.Code, § 115. 
In a criminal case, all the elements of the crime must 
be proved by the government beyond a reasonable doubt.

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197 
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 
368. 
Except in cases of tax fraud, the burden of proof in a 
tax case generally is on the taxpayer. 
Term has been used to mean either the necessity of 
establishing a fact, that is, the burden of persuasion, or 
the necessity of making a prima facie showing, that is, 
the burden of going forward. State Farm Life Ins. Co. v. 
Smith, 29 Ill.App.3d 942, 331 N.E.2d 275, 278. 
"Burden of establishing" a fact means the burden of 
persuading the triers of fact that the existence of the 
fact is more probable than its non-existence. U.C.C. 
§ 1-201(8). 
See also Beyond a reasonable doubt; Clear and convinc
ing proof; Preponderance of evidence; Reasonable doubt; 
Shifting the burden of proof. 
Bureau Ibylirow I. An office for the transaction of busi
ness. A name given to the several departments of the 
executive or administrative branch of government, or 
their divisions. A specialized administrative unit. 
Business establishment for exchanging inf ormation, 
making contacts, coordinating activities, etc. 
Bureaucracy Ibyur6kr�siy I. An organization, such as 
an administrative agency or the army, with the follow
ing general traits: a chain of command with fewer 
people at the top than at the bottom; well defined 
positions and responsibilities; fairly inflexible rules and 
procedures; "red tape"; many forms to be filled out; 
and delegation of authority downward from level to 
level. 
Bureau of Customs. Federal agency charged with re
sponsibility of collecting importing duties for the 
Government. It was redesignated as the United States 
Customs Service in 1973. See Customs Service. 
Bureau of Land Management. The Bureau of Land 
Management was established July 16, 1946, by the con
solidation of the General Land Office (created in 1812) 
and the Grazing Service (formed in 1934). The Bureau 
manages the national resource lands (some 450 million 
acres) and their resources. It also administers the min
eral resources connected with acquired lands and the 
submerged lands of the Outer Continental Shelf (OCS). 
It is within the U.S. Dept. of Interior. See 35 U.S.C.A. 
§ 1731 et seq. 
Burford doctrine. Under "Burford Doctrine" of absten
tion, federal courts have refrained from interfering with 
complex state regulatory schemes. Clutchette v. Procu
nier, D.C.Cal., 328 F.Supp. 767, 772. 
Burgage Ibarg�j/. A name anciently given to a dwell
ing-house in a borough town. 
Burgage-tenure. In English law, one of the three spe
cies of free socage holdings; a tenure whereby houses 
and lands which were formerly the site of houses, in an 
ancient borough, are held of some lord by a certain rent. 
There are a great many customs affecting these tenures, 
the most remarkable of which is the custom of Borough 
English. Such tenures have been abolished. 
BURGLARY 
Burgator Ib�rgeyt�r/. One who breaks into houses or 
inclosed places, as distinguished from one who commit
ted robbery in the open country. 
Burgbote Ibargbowt /. In old English law, a term ap
plied to a contribution towards the repair of castles or 
walls of defense, or of a borough. 
Burgenses Ib�rj{msiyz/. In old English law, inhabitants 
of a burgus or borough; burgesses. 
Burgeristh Ibarg�ris(Jl. A word used in Domesday, sig
nifying a breach of the peace in a town. 
Burgess Ibarj�s/. In English law, an inhabitant or free
man of a borough or town; a person duly and legally 
admitted a member of a municipal corporation. A mag
istrate of a borough. An elector or voter; a person 
legally qualified to vote at elections. The word in this 
sense is particularly defined by the statute 5 & 6 Wm. 
IV, c. 76, §§ 9, 13. A representative of a borough or 
town, in parliament. The term now has no local govern
men t significance. 
Burgess roll. A roll, required by the St. 5 & 6 Wm. IV, 
c. 76, to be kept in corporate towns or boroughs, of the 
names of burgesses entitled to certain new rights con
ferred by that act. 
Burgh-breche Ibarg-briych/. A fine imposed on the 
community of a town, for a breach of the peace, etc. 
Burgh English Ibarg il)gl�sh/. See Borough English. 
Burgh Engloys Ibarg il)gloyz/. Borough English (q.v.). 
Burghmote Ibargmowt/. In Saxon law, a court of jus-
tice held semi-annually by the bishop or lord in a burg, 
which the thanes were bound to attend without sum
mons. 
Burglar. One who commits burglary. 
Burglarious. Of, involving, or related to burglary. The 
adverb "burglariously" was formerly a pleading require
ment in common law burglary indictments. Candler v. 
State, 266 Ind. 440, 363 N .E.2d 1233, 1237. 
Burglariously Ib�rgleriy�siiy I. See Burglarious; Burglar
iter. 
Burglariter Ib�rgler�d�r/. L. Lat. (Burglariously). In 
old criminal pleading, a necessary word in indictments 
for burglary. 
Burglary. At common law, the crime of burglary con
sisted of a breaking and entering of a dwelling house of 
another in the nighttime with the intent to commit a 
felony therein. The modern statutory definitions of the 
crime are much less restrictive. For example, they 
commonly require no breaking and encompass entry at 
all times of all kinds of structures. In addition, certain 
state statutes classify the crime into first, second, and 
even third, degree burglary. 
A person is guilty of burglary if he enters a building 
or occupied structure, or separately secured or occupied 
portion thereof, with purpose to commit a crime therein, 
unless the premises are at the time, open to the public 
or the actor is licensed or privileged to enter. It is an

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BURGLARY 
affirmative defense to prosecution for burglary that the 
building or structure was abandoned. Model Penal 
Code, § 221 .1. 
See also Breaking. 
Burglary tools. Any implement which may be used to 
commit burglary though, of itself, it is designed for 
legitimate use, and possession of which is a crime if 
accompanied by the intent to use for such illegal pur
pose and the knowledge of its illegal use. 
Burgomaster IMrg;)mrest;)r I. The title given in Germa
ny to the chief executive officer of a borough, town, or 
city; corresponding to our "mayor." 
Burgundian law Ib;)rg�ndiy;)n 16/. See Lex Burgundio
num. 
Burgwhar. A burgess (q. v.). 
Burial. Act or process of burying a deceased person; 
sepulture, interment, act of depositing a dead body in 
the earth, in a tomb or vault, or in the water. The act 
of interring the human dead. 
Burial insurance. A contract based on legal considera
tion whereby obligor undertakes to furnish obligee or 
one of latter's relatives at death burial reasonably worth 
fixed sum. 
Burial place. A portion of ground set apart for or 
occupied by grave, or as a grave or graveyard. 
Burial purposes. Continuing care, preservation, and 
ornamentation of the place of interment as included in 
term. People v. Rosehill Cemetery Co., 371 Ill. 510, 21 
N.E.2d 766, 770. 
Buried facts doctrine. Under this doctrine, disclosure 
in proxy statement is inadequate only if there is some 
conceivable danger that reasonable shareholder would 
fail to realize correlation and overall import of various 
facts interspersed throughout proxy. Kas v. Financial 
General Bankshares, Inc., C.A., 796 F.2d 508, 516, 254 
U.S.App.D.C. 217. 
Burking, burkism. Murder committed with the object 
of selling the cadaver for purposes of dissection, particu
larly and originally, by suffocating or strangling the 
victim. 
Burning in the hand. In old English criminal law, 
laymen, upon being accorded the benefit of clergy, were 
burned with a hot iron in the brawn of the left thumb, 
in order that, being thus marked, they could not again 
claim their clergy. 4 BI.Comm. 367. This practice was 
finally abolished by Stat. 19 Geo. III, c. 74; though 
before that time the burning was often done with a cold 
iron. 
Bursar. A treasurer of a college. 
Bursaria Ib;)rseriy;)1 or bursary Ib;)rs;)riy I. The trea
surer of collegiate or conventual bodies; or the place of 
receiving, paying, and accounting by the bursars. Also, 
monetary grant to a needy student. 
Burying-ground. A place set apart for the interment of 
the dead; a cemetery. 
198 
Buscarl Ib�skarl/. In Saxon and old English law, sea
men or marines. 
Bushel. A dry measure, containing four pecks, eight 
gallons, or thirty-two quarts. But the dimensions of a 
bushel, and the weight of a bushel of grain, etc., vary in 
the different states in consequence of statutory enact
ments. 
Bushido Ibu(w)shiydow/. Jap. The unwritten code of 
conduct of the Samurai demanding loyalty to superiors 
only, simplicity of living and military valor. Treachery 
and brutality against one's enemies, and self-s acrifice, 
blind loyalty and unquestioning obedience to one's supe
riors are cardinal characteristics of the code. 
Business. Employment, occupation, profession, or com
mercial activity engaged in for gain or livelihood. Ac
tivity or enterprise for gain, benefit, advantage or liveli
hood. Union League Club v. Johnson, 18 Cal.2d 275, 108 
P.2d 487, 490. Enterprise in which person engaged 
shows willingness to invest time and capital on future 
outcome. Doggett v. Burnet, 62 App.D.C. 103, 65 F.2d 
191, 194. That which habitually busies or occupies or 
engages the time, attention, labor, and effort of persons 
as a principal serious concern or interest or for liveli
hood or profit. 
See also Association; Company; Corpora tion; Doing 
business; Joint enterprise; Partnership; Place of busi
ness; Trade. 
Business agent. Agent having some general supervision 
over general affairs. Person employed by union mem
bers to represent them in relations with business-em
ployer. 
Business bad debt. See Business bad debts. 
Business corporation. A corporation organized for the 
purpose of carrying on a business for profit. City of St. 
Louis v. Smith, 325 Mo. 47 1, 30 S.W.2d 729, 731. See 
Corporation. 
Business done in state. Business begun and completed 
or ended in state. Clark v. Atlantic Pipe Line Co., 
Tex.Civ.App., 134 S.W.2d 322, 328. 
Business enterprise. Investment of capital, labor and 
management in an undertaking for profit; one of the 
recognized attributes is centralized management and 
control. Helvering v. Jewel Mining Co., C.C.A.8, 126 
F.2d 1011, 1015. 
Business expense. An expense incurred in connection 
with carrying on a trade or business, the purpose of 
which is the production of income. Such expenses are 
deductible in arriving at taxable income. I.R.C. § 162. 
Business gains. Gains from the sale, exchange, or other 
disposition of property used in a trade or business. 
Fackler v. Commissioner of Internal Revenue, C.C.A.6, 
133 F.2d 509, 512. 
Business guest. One invited to business establishment 
as a guest and to whom a duty of care is owed generally 
greater than to a social guest, though such distinctions 
are becoming less acceptable in the area of torts; see e.g.

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199 
Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43. See 
Guest. 
Business hours. In general those hours during which 
persons in the community generally keep their places 
open for the transaction of business. Casalduc v. Diaz, 
C.C.A .Puerto Rico, 117 F.2d 915, 916. 
Business invit ee. One who is impliedly invited to prem
ises for transacting business and to whom a duty of due 
care is owed. One who goes on another's premises at 
express or implied invitation of owner or occupant for 
benefit of invitor or for mutual benefit and advantage of 
both invitor and invitee. Campbell Sixty-Six Exp., Inc. 
v. Adventure Line Mfg. Co., 209 Kan. 357, 496 P.2d 1351, 
1355. See Invitee, and Business visitor, below. 
Business league. An association is a business league if 
persons thereof have some common business interest. 
Underwriters' Laboratories v. Commissioner of Internal 
Revenue, C.C.A.7, 135 F.2d 371, 374. 
Business losses. Losses from sale, exchange, or other 
disposition of property used in trade or business. Fack
ler v. Commissioner of Internal Revenue, C.C.A.6, 133 
F.2d 509, 512. See also Business bad debts. 
Business of peddling. Business of one relying on 
present solicitation of chance patrons for purchases of 
uncertain quantities and making concurring deliveries. 
Business of public character. Business wherein person 
engaged expressly or impliedly holds himself out as 
engaged in business of supplying his product or service 
to public as a class or to limited portion of public. 
Business purpose. Term used on occasion to describe the 
use to which property may be put or not, as in a deed's 
restrictive covenant. A justifiable business reason for 
carrying out a transaction. It has long been established 
that mere tax avoidance is not a business purpose. The 
presence of a business purpose is of crucial importance 
in the area of corporate readjustments and certain liqui
dations. 
Business records. Journals, books of account and other 
records which may be ordered produced as part of dis
covery in trial or preparation of case and generally 
given broad interpretation for such purposes; see e.g. 
Fed.R.Civ.Proc. Rules 26(b)(1), 45(b). See also Business 
entry rule; Business records exception. 
Business risk. In finance, the risk of default or variabil
ity of return arising from the type of business conduct
ed. 
Business situs. A situs acquired for tax purposes by one 
who has carried on a business in the state more or less 
permanent in its nature. A situs arising when notes, 
mortgages, tax sale certificates and the like are brought 
into the state for something more than a temporary 
purpose, and are devoted to some business use there and 
thus become incorporated with the property of the state 
for revenue purposes. A situs arising where possession 
and control of property right has been localized in some 
independent business or investment away from owner's 
domicile so that its substantial use and value primarily 
BUSINESS ENTRY RULE 
attach to and become an asset of the outside business. 
State v. Atlantic Oil Producing Co., 174 Okl. 61, 49 P.2d 
534, 538. 
Business trust. As distinguished from a joint-stock com
pany, a pure "business trust" is one in which the manag
ers are principals, and the shareholders are cestuis que 
trust. The essential attribute is that property is placed 
in the hands of trustees who manage and deal with it for 
use and benefit of beneficiaries. Morriss v. Finkelstein, 
Mo.App., 127 S.W.2d 46, 49. A "Massachusetts trust" or 
"common law trust." See Massachusetts trust; Real 
estate investment trust (REI T). 
Business usage. See Business purpose, above. 
Business use of home. Expenses incurred in connection 
with the use of a taxpayers residence for the purpose of 
carrying on a trade or business are deductible if the 
residence is used exclusively and regularly as the tax
payers principal place of business and the place where 
the taxpayers meet with customers. I.R.C. § 280A. 
Business visitor. One who is invited or permitted to 
enter or remain upon the premises of another for a 
purpose directly or indirectly connected with the busi
ness dealings between them. Lemon v. Busey, 461 P.2d 
145, 149. One who comes on premises at occupant's 
instance for purposes connected with purpose, business, 
or otherwise, for which occupant uses premises. See 
also Guest; Invitee, and Business guest; Business invit ee, 
above. 
Course of business. See Course of dealing; Doing busi
ness. 
Farming business. See Farming purposes. 
Private business. One in which capital, time, attention, 
labor, and intelligence have been invested for gain and 
profit for private benefit, purposes and use. 
Public business. An element is that the business by its 
nature must be such that the public must use the same, 
or the commodities bought and sold in such manner as 
to affect the community at large as to supply, price, etc. 
See Corporation. 
Business bad debts. An obligation obtained in connec
tion with a trade or business which becomes partially or 
totally worthless. Business bad debts are fully deduct
ible in arriving at taxable income, in contrast with 
non-business bad debts which are considered casualty 
losses and limitations apply. See also Bad debt. 
Business entry. A writing or memorandum of a fact or 
event made in the regular course of business whose 
regular course is to make the writing or memorandum 
at the time of the fact or event or within a reasonable 
time thereafter. U.S. v. Chong, ACMR, 8 M.J. 592, 594. 
Business entry rule. Exception to hearsay rule which 
allows introduction of entries made in usual course of 
business into evidence though person who made such 
entry is not in court. Fed.Rules Evid., Rule 803(6); 28 
U.S.C.A. § 1732. See also Business records exception.

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BUSINESS JUDGMENT RULE 
Business judgment rule. This rule immunizes manage
ment from liability in corporate transaction undertaken 
within both power of corporation and authority of 
management where there is reasonable basis to indicate 
that transaction was made with due care and in good 
faith. Nursing Home Bldg. Corp. v. DeHart, 13 Wash. 
App. 489, 535 P.2d 137, 144. 
Business pursuit. Within the meaning of homeowners 
insurance policy exclusion, term denotes continued or 
regular activity for purpose of earning a livelihood such 
as a traJe, profession, or occupation, or a commercial 
activity. Industrial Indem. Co. v. Goettl, App., 138 Ariz. 
315, 674 P.2d 869, 872. 
Business records exception. An exception to the hear
say exclusion rule that allows original, routine records 
(whether or not part of a "business") to be used as 
evidence in a trial even though they are hearsay. Vn
der this exception to hearsay rule, documentary evi
dence is admissible if identified by its entrant, or one 
under whose supervision it is kept and shown to be 
original or first permanent entry, made in routine 
course of business, at or near time of recorded transac
tion, by one having both duty to so record and personal 
knowledge of transaction represented by entry. Sim
mons v. State, 175 Ind.App. 333, 371 N.E.2d 1316, 1320. 
See also Business entry rule. 
Business tort. A noncontractual breach of a legal duty 
by a business directly resulting in damages or injury to 
another. 
Busones comitatus /byuws6wniyz ko(w)m;)teyt;)s/. In 
old English law, the barons of a county. 
But. Except, except that, on the contrary, or, and also, 
yet, still. 
"But for" test. Test used in determining tort liability by 
applying the causative criterion as to whether the plain
tiff would not have suffered the wrong "but for" the 
action of the defendant. Today, largely discredited as a 
test because of the many modifications necessary in 
applying it. 
Butler's ordinance. In old English law, a law for the 
heir to punish waste in the life of the ancestor. 
Butt. A measure of liquid capacity, equal to one hun
dred and eight gallons; also a measure of land. 
Buttals /b�t;)lz/. The bounding lines of land at the end; 
abuttals, which see. 
Butted and bounded. A phrase sometimes used in 
conveyancing, to introduce the boundaries of lands. See 
Butts and bounds. 
Butts. In old English law, short pieces of land left 
unplowed at the ends of fields, where the plow was 
turned about (otherwise called "headlands") as side
lings were similarly unplowed pieces on the sides. Also 
a place where bowmen meet to shoot at a mark. 
Butts and bounds. A phrase used in conveyancing, to 
describe the end lines or circumscribing lines of a cer-
200 
tain piece of land. The phrase "metes and bounds" has 
the same meaning. 
The angles or points where these lines change their 
direction. See Abuttals; Metes and bounds. 
Buy. To acquire the ownership of property by giving an 
accepted price or consideration therefor; or by agreeing 
to do so; to acquire by the payment of a price or value; 
to purchase. To obtain something for a price, usually 
money. See also Purchase. 
Buy American acts. Federal and state statutes which 
require a preference for American made goods over 
foreign made goods in government contracts. The pur
pose of such acts is to protect domestic industry, goods 
and labor. See 41 V.S.C.A. § 10. 
Buy and sell agreement. An arrangement, particularly 
appropriate in the case of a closely-held corporation or a 
partnership, whereby the surviving owners (i.e. share
holders or partners) or the entity (i.e., corporation or 
partnership) agree to purchase the interest of a with
drawing or deceased owner (i.e., shareholder or partner). 
The buy and sell agreement provides for an orderly 
disposition of an interest in a business and is beneficial 
in setting the value of such interest for death tax pur
poses. 
An agreement between or among part-owners of a 
business that under stated conditions (usually severance 
of employment, disability, or death), the person with
drawing or his heirs are legally obligated to sell their 
interest to the remaining part-owners, and the remain
ing part-owners are legally obligated to sell at a price 
fixed in the agreement either on a dollar basis or on a 
formula for computing the dollar value to be paid. 
Entity buy and sell agreement. A buy and sell agree
ment whereby the entity is to purchase the withdrawing 
or deceased owner's interest. When the entity is a 
corporation, the agreement generally involves a stock 
redemption on the part of the withdrawing shareholder. 
Buy-down. Money that is paid by or on behalf of a 
homeowner at the time of purchase to reduce the mort
gage interest rate and thereby lower monthly payments. 
Home builders frequently offer buy-downs. 
Buyer. One who buys; a purchaser, particularly of 
chattels. A person who buys or contracts to buy goods. 
D.C.C. § 2-103(1)(a). See also Purchaser. 
Buyer in ordinary course of business. A person who 
in good faith and without knowledge that the sale to 
him is in violation of the ownership rights or security 
interest of a third party in the goods buys in ordinary 
course from a person in the business of selling goods of 
that kind but does not include a pawnbroker. "Buying" 
may be for cash or by exchange of other property or on 
secured or unsecured credit and includes receiving goods 
or documents of title under a pre-existing contract for 
sale but does not include a transfer in bulk or as 
security for or in total or partial satisfaction of a money 
debt. V.C.C. § 1-201(9). 
Buyer's market. Situation where supply is greater than 
demand.

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201 
Buy in. See Buying in. 
Buying dormant titles. The purchase of the rights or 
claims to real estate of a person who is not in possession 
of the land or is deceased. Such purchases were de
clared void by English statute (1541); and are similarly 
void in most states. See also Bracery. 
Buying in. Buying of property at auction or tax or 
mortgage foreclosure sale by original owner or by one 
with interest in property. 
Buying long. Purchase of stocks now with the expecta
tion of selling them for a profit in the future. 
Buying on margin. Purchase of security with payment 
part in cash and part by a loan. Normally, the loan is 
made by the broker. See also Margin account. 
Buyout. The purchase of a controlling percentage of a 
company's shares. A buyout can be accomplished 
through negotiation, through a tender offer, or through 
a merger. See also Leveraged buyout. 
By. Before a certain time; beside; close to; in close 
proximity; in consequence of; not later than a certain 
time; on or before a certain time; in conformity with; 
with the witness or sanction of; into the vicinity of and 
beyond. Through the means, act, agency or instrumen
talityof. 
By-bidder. One employed by the seller or his agent to 
bid on property with no purpose to become a purchaser, 
so that bidding thereon may be stimulated in others who 
are bidding in good faith. 
By-bidding. See Bid. 
By bill, by bill without writ. In old English law, terms 
anciently used to designate actions commenced by origi
nal bill, as distinguished from those commenced by 
original writ, and applied in modern practice to suits 
commenced by capias ad respondendum. 3 Bl.Comm. 
285, 286. The usual course of commencing an action in 
the King's Bench was by a bill of Middlesex. In an 
action commenced by bill it is not necessary to notice 
the form or nature of the action. 
By color of office. Acts done "by color of office" are 
where they are of such a nature that office gives no 
authority to do them. State v. National Surety Co., 162 
Tenn. 547, 39 S.W.2d 581, 583. See Color of law; Color of 
office. 
Bye-bil-wuffa. In Hindu law, a deed of mortgage or 
conditional sale. 
By estimation. In conveyancing, a term used to indicate 
that the quantity of land as stated is estimated only, not 
exactly measured; it has the same meaning and effect 
as the phrase "more or less." 
BY VIRTUE OF 
By God and my country. In old English criminal 
practice, the established formula of reply by a prisoner, 
when arraigned at the bar, to the question, "Culprit, 
how wilt thou be tried?" 
By-law men. In old English law, the chief men of a 
town, representing the inhabitants. In an ancient deed, 
certain parties were described as "yeomen and by- law 
men." They appear to have been men appointed for 
some purpose of limited authority by the other inhab
itants, under by-laws of the corporation appointing. 
Bylaws. Regulations, ordinances, rules or laws adopted 
by an association or corporation or the like for its 
internal governance. Bylaws define the rights and obli
gations of various officers, persons or groups within the 
corporate structure and provide rules for routine mat
ters such as calling meetings and the like. Most state 
corporation statutes contemplate that every corporation 
will adopt bylaws. 
The word is also sometimes used to designate the local 
laws or municipal statutes of a city or town, though, 
more commonly the tendency is to employ the word 
"ordinance" exclusively for this class of enactments, 
reserving "by-law" for the rules adopted by corporations. 
By operation of law. Effected by some positive legal 
rule or amendment. Terminals & Transportation Cor
poration v. State, 169 Misc. 703, 8 N.Y.S.2d 282, 284. 
By reason of. Because of. By means, acts, or instru
mentality of. 
Byrnes Act. Federal law prohibiting interstate trans
portation of strike breakers. 18 U.S.C.A. § 1231. 
Byroad. An obscure or neighborhood road, not used to 
any great extent by the public, yet so far a public road 
that the public have of right free access to it at all times. 
A byway. 
Bystander. One who stands near; a chance looker-on; 
hence one who has no concern with the business being 
transacted. One present but not taking part, looker-on, 
spectator, beholder, observer. 
By the by (also Bye). Incidentally; without new process. 
A term used in former English practice to denote the 
method of filing a declaration against a defendant who 
was already in the custody of the court at the suit of a 
different plaintiff or of the same plaintiff in another 
cause. It is no longer allowed. 
By virtue of. By force of, by authority of, by reason of. 
Phillips v. Houston Nat. Bank, Houston, Tex., C.C.A. 
Tex., 108 F.2d 934, 936. Because of, through, or in 
pursuance of. For example, money received by an offi
cer by virtue of his office is money which that officer 
received under the law of his office, and not in violation 
thereof.

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c
C.--ct.--cts. These abbreviations. stand for "cent" or
"cents," and any one of them, placed at the top or head
of a column of figures, sufficiently indicates the denom
ination of the figures below.
CAA. See Clean Air Acts.
C.A.B. Civil Aeronautics Board.
Cabal Ik�b(eI/. A small association for the purpose of
intrigue; an intrigue. This name was given to that
ministry in the reign of Charles II, formed by Clifford,
Ashley, Buckingham, Arlington, and Lauderdale, who
concerted a scheme for the restoration of the Pope. The
initials of these five names form the word "cabal;"
hence the appellation.
Cabalist Ikabalist/. In French commercial law, a factor
or broker.
Caballaria Ikreb�h�r(i)y�/. Pertaining to a horse. It was
a feudal tenure of lands, the tenant furnishing a horse
man suitably equipped in time of war, or when the lord
had occasion for his service.
Caballeria Ikabayeriy�/. In Spanish law, an allotment
of land acquired by conquest, to a horse soldier. A
quantity of land, varying in extent in different prov
inces. In those parts of the United States which former
ly belonged to Spain, it is a lot of one hundred feet front,
two hundred feet depth, and equivalent to five peonias.
Caballero Ikabayerow Ikrev�lyerow I. In Spanish law, a
knight. So called on account of its being more honora
ble to go on horseback (a caballo) than on any other
beast.
Cabana. Cabin or small house.
Cabaret Ikreb�rey I. A room where musical entertain
ment is permitted in connection with restaurant busi
ness.
Cabaret tax. Tax imposed on operation of cabaret by
government authorities.
Cabinet. The advisory board or counsel of a king or
other chief executive; e.g. President's Cabinet. The
select or secret council of a prince or executive govern
ment; so called from the apartment in which it was
originally held.
The President's Cabinet is a creation of custom and
tradition, going back to the First President, and func
tions at the pleasure of the President. Its purpose is to
of the thirteen executive departments-the Secretary of
State, the Secretary of the Treasury, the Secretary of
Defense, the Attorney General, the Secretary of the
Interior, the Secretary of Agriculture, the Secretary of
Commerce, the Secretary of Labor, the Secretary of
Health and Human Services, the Secretary of Education,
the Secretary of Energy, the Secretary of Housing and
Urban Development, and the Secretary of Transporta
tion. Certain other officials of the executive branch
have been accorded Cabinet rank. The Vice President
participates in all Cabinet meetings. Others are invited
from time to time for discussion of particular subjects.
The Secretary to the Cabinet is designated to provide for
orderly handling and followup of matters brought before
the Cabinet.
Kitchen cabinet. Informal body of non-cabinet advisors
which President turns to for advice.
Cabinet council. In English politics, a private and
confidential assembly of the most considerable ministers
of state, with the function of deciding, in association
with the Prime Minister, government policy and the
activities of all government departments; first estab
lished by Charles I.
Cable casting. The distribution on a community anten
na television system of television programs by means of
high antenna or microwave transmission amplified and
distributed by coaxial cable to the premises of its sub
scribers. Hoffman v. Capitol Cablevision Systems, Inc.,
82 Misc.2d 986, 372 N.Y.S.2d 482, 484.
Cabotage Ikreb�t�j/. A nautical term from the Spanish,
denoting strictly navigation from cape to cape along the
coast without going out into the open sea. In Interna
tional Law, cabotage is identified with coasting-trade so
that it means navigating and trading along the coast
between the ports thereof.
Cachepolus Ikrech(iy)p61�sl or cacherellas Ikrech�
rel�s/. An inferior bailiff, or catchpoll.
Cachet, lettres de /letr� d� kreshey I. Letters issued and
signed by the kings of France, and countersigned by a
secretary of state, authorizing the imprisonment of a
person. Abolished during the revolution of 1789. See
Lettres de cachet.
advise the President on any matter concerning which he Cacicazgos Ikasiykaskows/. In Spanish-American law,
wishes such advice (pursuant to Article II, section 2, of property entailed on the caciques, or heads of Indian
the Constitution). The Cabinet is composed of the heads villages, and their descendants.
202

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203 
Cadastre Ik;}drest;}r/k;}dastrey/. Tax inventory and as
sessment of real property. List of appraised property 
values in a locality used to determine tax assessments. 
Cadastu. In French law, an official statement of the 
quantity and value of realty made for purposes of taxa
tion; same as cadastre (q.v.). 
Cadaver Ik;}drev;}r I. A dead human body; a corpse. 
Cadaver nullius in bonis, no one can have a right of 
property in a corpse. 
Cadena Ik;}diyn;}/. In Spanish, literally, "a chain." In 
Spanish law, an afflictive penalty consisting of imprison
ment at "hard and laborious work," originally with a 
chain hanging from the waist to the ankle and carrying 
with it the accessory penalties of civil interdiction, per
petual, absolute disqualification from office, and, in the 
case of "cadena temporal," surveillance by the authori
ties during life; sometimes described as "imprisonment 
in chains." The carrying of chains, however, by convicts 
sentenced to "cadena" has long fallen into disuse, in the 
Philippines, and in fact no such punishment has been 
inflicted since the earliest days of the military occupa
tion of the Philippines by American troops; and so, 
commonly, the term has come to mean imprisonment, 
although it has also been contrasted with, or distin
guished from, "prision," the Spanish technical name for 
simple imprisonment. 
Cadena perpetua. Life imprisonment. 
Cadena temporal. Imprisonment for a term less than 
life. 
Cadere Ikred;}riy I. Lat. To end; cease; fail; as in 
phrases such as cadit actio (or breve), the action (or writ) 
fails; cadit assisa, the assise abates; cadit qurestio, the 
discussion ends, there is no room for further argument; 
cadere ab actione (literally, to fall from an action), to fail 
in an action; cadere in partem, to become subject to a 
division. 
To be changed; to become; to be turned into. Cadit 
assisa in juratum, the assise is changed into a jury. 
Cadet Ik;}det/. Students in the military academy at 
West Point are styled "cadets;" students in the naval 
academy at Annapolis, "cadet midshipmen." 
Younger brother or son. 
In England, a younger brother; the younger son of a 
gentleman; particularly applied to a volunteer in the 
army, waiting for some post. 
Cadit I keyd;}t I kred;}t I . Lat. It falls, abates, fails, ends, 
ceases. See Cadere. 
Caduca Ik;}d(y)uwk;}/. In the civil law, property of an 
inheritable quality; property such as descends to an 
heir. Also the lapse of a testamentary disposition or 
legacy. Also an escheat; escheated property. 
Caducary Ik;}d(y)uwk;}riy I. Relating to or of the nature 
of escheat, forfeiture, or confiscation. 2 Bl.Comm. 245. 
Creteris tacentibus Iset;}r;}s t;}sent;}b;}s/. The others be
ing silent; the other judges expressing no opinion. 
CALENDAR 
Creterorum Iset;}ror;}m/. When a limited administration 
has been granted, and all the property cannot be admin
istered under it, administration creterorum (as to the 
residue) may be granted. 
C.A.F. Cost and Freight. 
Cafeteria plan. Type of fringe benefit plan whereby 
employee, in addition to receiving certain basic fringe 
benefits, is permitted to also select and structure certain 
other types of benefits up to a specified dollar amount. 
Cahier lka,(hi)yey I. In old French law, a list of griev
ances prepared for deputies in the states-general. A 
petition for the redress of grievances enumerated. 
Cahoots I k;}huwts I . Partnership, teaming up, or com
bining efforts. City of Abilene v. Luhn, Tex.Civ.App., 65 
S.W.2d 370, 371. See Conspiracy. 
Cairns' Act. An English statute for enabling the court 
of chancery to award damages. Repealed as having 
been superseded by the Judicature Act of 1873. 
Cajolery. A deliberate attempt at persuading or deceiv
ing an accused with false promises, inducements or 
information, into relinquishing his rights and respond
ing to questions posed by law enforcement officers. 
State v. Davis, 73 Wash.2d 271, 438 P.2d 185, 191. 
Calaboose Ikrel;}buws/. A term used to designate a jail 
or prison, particularly a town or city jail or lock-up. 
Supposed to be a corruption of the Spanish calabozo, a 
dungeon. 
Calamity. A state of extreme distress or misfortune, 
produced by some adverse circumstance or event. Any 
great misfortune or cause of loss or misery, often caused 
by natural forces (e.g. hurricane, flood, or the like). See 
Act of God; Disaster. 
Calcetum, calcea I krelsiyt;}m I krelsiy;} I . A causeway. 
Calculated. Adapted by calculation, forethought or con
trivance to accomplish a purpose; likely to produce a 
certain effect. Kansas City v. Graham, Mo.App., 502 
S.W.2d 411, 415. Thought-out, premeditated. See Pre
meditation. 
Cale. In old French law, a punishment of sailors, resem
bling "keelhauling." 
Calefagium Ikrel;}feyjiy;}m/. In old law, a right to take 
fuel yearly. 
Calendar. The established order of the division of time 
into years, months, weeks, and days; or a systematized 
enumeration of such arrangement; an almanac. 
Calendar call. A court session given to calling the cases 
awaiting trial to determine the present status of each 
case and commonly to assign a date for trial. See also 
Trial calendar. 
Calendar days. A calendar day contains 24 hours; but 
"calendar days" may be synonymous with "working 
days." Sherwood v. American Sugar Refining Co., C.C. 
A.N.Y., 8 F.2d 586, 588. The time from midnight to 
midnight. Lanni v. Grimes, 173 Misc. 614, 18 N.Y.S.2d

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CALENDAR 
322, 327. So many days reckoned according to the 
course of the calendar. 
Calendar month. Period terminating with day succeed
ing month, numerically corresponding to day of its be
ginning, less one. State v. Jones, 208 Neb. 641, 305 
N.W.2d 355, 358. 
Calendar week. A block of seven days registered on 
calendar beginning with Sunday and ending with Satur
day. Term may consist of any seven days of given 
month. Gapeau v. Stillman, 18 Ohio St.2d 63, 247 
N.E.2d 461, 462. 
Calendar year. The period from January 1 to December 
31 inclusive. Ordinarily calendar year means 365 days 
except leap year, and is composed of 12 months varying 
in length. See also Accounting period. 
Co urt calendar. A list of cases awaiting trial or other 
disposition; sometimes called "trial list" or "docket." 
Special calendar. A calendar or list of causes, contain
ing those set down specially for hearing, trial, or argu
ment. 
Calends Ik,eI:mdzl. Among the Romans the-first day of 
every month, being spoken of by itself, or the very day of 
the new moon, which usually happen together. And if 
pridie, the day before, be added to it, then it is the last 
day of the foregoing month, as pridie calend. Septemb. 
is the last day of August. If any number be placed with 
it, it signifies that day in the former month which comes 
so much before the month named, as the tenth calends 
of October is the 20th day of September; for if one 
reckons backwards, beginning at October, that 20th day 
of September makes the 10th day before October. In 
March, May, July, and October, the calends begin at the 
sixteenth day, but in other months at the fourteenth; 
which calends must ever bear the name of the month 
following, and be numbered backwards from the first 
day of the said following months. 
Calends, Greek. A metaphorical expression for a time 
never likely to arrive, inasmuch as the Greeks had no 
calends. 
Call, n. A request or command to come or assemble; a 
demand for payment of money. 
Banking. Demand for repayment of loan. 
Co ntract. As used in contract, means demand for pay
ment of, especially by formal notice. 
Co nveyance. A visible natural object or landmark desig
nated in a patent, entry, grant, or other conveyance of 
lands, as a limit or boundary to the land described, with 
which the points of surveying must correspond. Also 
the courses and distances designated. See also Metes 
and bounds. 
Corpora tion law. A demand by directors upon subscrib
ers for shares for payment of a portion or installment; 
in this sense, it is capable of three meanings: (1) The 
resolution of the directors to levy the assessment; (2) its 
notification to the persons liable to pay; (3) the time 
when it becomes payable. 
204 
Securities. An option or contract giving the holder the 
right to purchase a stated number of shares of stock at a 
specified price on or before a certain fixed date. Cohn, 
Ivers & Co. v. Gross, 56 Misc.2d 491, 289 N.Y.S.2d 301. 
See also Call option; Put. 
Call, v. To make a request or demand; to summon or 
demand by name; to demand payment of debt or loan 
immediately or at a specified time, to demand share
holders to pay additional capital; to redeem bonds be
fore scheduled maturity; to demand the presence and 
participation of a number of persons by calling aloud 
their names, either in a pre-arranged and systematic 
order or in a succession determined by chance. 
Callable. Option to pay before maturity on call. A 
security (e.g. bond) issue, all or part of which may be 
redeemed by the issuing corporation under definite con
ditions before maturity. The term also applies to pre
ferred shares which may be redeemed by the issuing 
corporation. 
Callable bonds. Bonds which may be called for pay
ment before their maturity. A bond for which the 
issuer reserves the right to pay a specific amount, the 
call price, to retire the obligation before maturity date. 
If the issuer agrees to pay more than the face amount of 
the bond when called, the excess of the payment over 
the face amount is the call premium. See also Redemp
tion. 
Called upon to pay. Compelled or required to pay. 
Call feature. A provision in a bond that allows it to be 
redeemed by the issuer before maturity. See Callable 
bonds. 
Call girl. A prostitute whose bookings are normally 
made through the use of telephone. 
Calling. One's business, occupation, profession, trade or 
vocation. 
Calling the plaintiff. In old English law, the method of 
non-suiting a plaintiff who did not appear when called 
by the crier. 
Calling to the bar. In English practice, conferring the 
dignity or degree of barrister at law upon a member of 
one of the inns of court. 
Calling upon a prisoner. When a prisoner has been 
found guilty on an indictment, the clerk of the court 
addresses him and calls upon him to say why judgment 
should not be passed upon him. 
Call loan. Loan which is callable by lender at any time; 
usually on 24 hours notice. 
Call option. A negotiable instrument whereby writer of 
option, for a certain sum of money (the "premium"), 
grants to the buyer of option the irrevocable right to 
demand, within a specified time, the delivery by the 
writer of a specified number of shares of a stock at a 
fixed price (the "exercise" or "striking" price). Gordon 
& Co. v. Board of Governors of Federal Reserve System, 
D.C.Mass., 317 F.Supp. 1045, 1046. An option permit
ting its holder (who has paid a fee for the option) to call

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205 
for a certain commodity or security at a fixed price in a 
stated quantity within a stated period. See Option. 
Call patent. One whose corners are all stakes, or all but 
one, or whose lines were not run out and marked at 
time. Combs v. Combs, 238 Ky. 362, 38 S.W.2d 243, 244. 
Call premium. The difference between a bond's call 
price and its par value. Amount paid by issuer over par 
or face value upon calling a security in for payment or 
redemption. 
Call price. The price at which a bond may be retired, or 
called, prior to its maturity. See also Redemption. 
Calumnia Ikal�mniya/. In the civil law, calumny, mal
ice, or ill design; a false accusation; a malicious prose
cution. 
In the old common law, a claim, demand, challenge to 
jurors. 
Calumnire jusjurandum Ikal�mniyiy j;}sjarrendam/. The 
oath of (against) calumny. An oath imposed upon the 
parties to a suit that they did not sue or defend with the 
intention of calumniating (calumniandi animo ), i.e., 
with a malicious design, but from a firm belief that they 
had a good cause. The object was to prevent vexatious 
and unnecessary suits. It was especially used in divorce 
cases, though of little practical utility. A somewhat 
similar provision is to be bound in the requirement 
made in some states that the defendant shall file an 
affidavit of merits. 
Calumniator Ikal�mniyeytar/. In the civil law, one who 
accused another of a crime without cause; one who 
brought a false accusation. 
Calumny Ikrelamniy I. Defamation; slander; false accu
sation of a crime or offense. See Calumnia. 
Calvin's case. Calvin v. Smith, 7 Rep. 1; 2 S.T. 559, 
decided in 1608, in which it was held that persons born 
in Scotland after the accession of James I to the crown 
of England in 1603 were not aliens but were capable of 
inheriting land in England. 
Calvo doctrine. The doctrine stated by the Argentine 
jurist, Carlos Calvo, that a government is not bound to 
indemnify aliens for losses or injuries sustained by them 
in consequence of domestic disturbances or civil war, 
where the state is not at fault, and that therefore 
foreign states are not justified in intervening, by force or 
otherwise, to secure the settlement of claims of their 
citizens on account of such losses or injuries. Such 
intervention, Calvo says, is not in accordance with the 
practice of European States towards one another, and is 
contrary to the principle of state sovereignty. The Cal
vo Doctrine is to be distinguished from the Drago Doc
trine (q.v.). 
Cambiale jus Ikrembiyeyliy j�s/. The law of exchange. 
Cambiator Ikrembiyeytar/. In old English law, an ex
changer. Cambiatores monet;;e, exchangers of money; 
money-changers. 
Cambio Ikambiyow/. In Spanish law, exchange. 
CAMPERS 
Cambipartia I krembaparsh(iy)a I . Champerty; from 
campus, a field, and partus, divided. 
Cambiparticeps Ikrembapartaseps/. A champertor. 
Cambist. In mercantile law, a person skilled in ex
changes; one who trades in promissory notes or bills of 
exchange; a broker. 
Cambium Ikrembiyam/. In the civil law, change or 
exchange. A term applied indifferently to the exchange 
of land, money, or debts. 
Cambium reale or manuale was the term generally 
used to denote the technical common-law exchange of 
lands; cambium locale, mercantile, or trajectitium, was 
used to designate the modern mercantile contract of 
exchange, whereby a man agrees, in consideration of a 
sum of money paid him in one place, to pay a like sum 
in another place. 
Camera Ikrem(a)ra/. In old English law, a chamber, 
room, or apartment; a judge's chamber; a treasury; a 
chest or coffer. Also, a stipend payable from vassal to 
lord; an annuity. See In camera. 
Cameralistics Ikremaralistaks/. The science of finance 
or public revenue, comprehending the means of raising 
and disposing of it. 
Camera regis Ikremara riyjas/. In old English law, a 
chamber of the king; a place of peculiar privileges 
especially in a commercial point of view. The city of 
London was so called. 
Camerarius Ikremareriyas/. A chamberlain; a keeper of 
the public money; a treasurer. Also a bailiff or receiv
er. 
Camera scaccarii Ikremara skakeriyay I. The old name 
of the exchequer chamber. 
Camera stellata Ikremara staleyta/. The star chamber 
(q.v.). 
Campaign Ikrempeyn/. All the things and necessary 
legal and factual acts done by a candidate and his 
adherents to obtain a majority or plurality of the votes 
to be cast. Running for office, or candidacy for office. 
Norris v. United States, C.C.A.Neb., 86 F.2d 379, 382. 
Any organized effort to promote a cause or to secure 
some definite result with any group of persons. State ex 
reI. Green v. City of Cleveland, Ohio App., 33 N.E.2d 35, 
36. 
Campartum Ikrempartam/. A part of a larger field or 
ground, which would otherwise be in gross or in com
mon. See Champer t; Champerty. 
Campbell's (Lord) Acts. English statutes, for amending 
the practice in prosecutions for libel, 9 & 10 Vict., c. 93; 
also 6 & 7 Vict., c. 96, providing for compensation to 
relatives in the case of a person having been killed 
through negligence; also 20 & 21 Vict., c. 83, in regard 
to the sale of obscene books, etc. 
Campers. A share; a champertor's share; a champer
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CAMPFIGHT 
Campfight. In old English law, the fighting of two 
champions or combatants in the field; the judicial com
bat, or duellum. 
Campum partere Ikremp�m part�riy I. To divide the 
land. See Champer ty. 
\ Can. As a verb, to be enabled by law, agreement, or 
custom; to have a right to; to have permission to. 
Often used interchangeably with "may." 
Canal. Artificial waterway used for navigation, drain
age or irrigation of land. 
Cancel Ikrens�l/. To obliterate; to strike or cross out. 
To destroy the effect of an instrument by defacing, 
obliterating, expunging, or erasing it. To revoke or 
recall; to annul or destroy, make void or invalid, or set 
aside. To rescind; abandon; repeal; surrender; waive; 
terminate. The term is sometimes equivalent to "dis
charge" or "pay." Debes v. Texas Nat. Bank of Beau
mont, Tex.Civ.App., 92 S.W.2d 476, 479. See also Abro
gation; Cancellation; Redemption; Rescind; Rescission 
of contract; Revocation; Termination. 
Cancellaria Ikrens�leriy�1 . Chancery; the court of 
chancery. Curia cancellaria is also used in the same 
sense. 4 Bl.Comm. 46. 
Cancellarii anglire dignitas est, ut secundus a rege in 
regno habetur Ikrens�leriyay re1Jgliyiy dign�tres est, ,)t 
s�k�nd�s ey riyjiy in regnow h�biyt�r/. The dignity of 
the chancellor of England is that he is deemed the 
second from the sovereign in the kingdom. 
Cancellarius Ikrens�leriy�s/. A chancellor; a scrivener, 
or notary. A janitor, or one who stood at the door of the 
court and was accustomed to carry out the commands of 
the judges. 
In early English law, the keeper of the king's seal. In 
this sense only, the word chancellor seems to have been 
used in the English law. 3 Bl.Comm. 46. 
Cancellation. To destroy the force, effectiveness, or 
validity of. To annul, abrogate, or terminate. Deface
ment or mutilation of instrument. Words of revocation 
written across instrument. 
A means whereby a holder discharges a party's liabili
ty on an instrument by physically demonstrating on the 
face of the instrument the intention to discharge, as by 
writing "CANCELLED" across the instrument's face, 
striking out the party's signature, or destroying or muti
lating the signature or the instrument. As applied to 
documents of title, the term refers to the act of the 
bailee voiding a negotiable document upon its surrender 
by the holder in taking possession of the goods. 
Occurs when either party puts an end to the contract 
for breach by the other and its effect is the same as that 
of "termination" except that the cancelling party also 
retains any remedy for breach of the whole contract or 
any unperformed balance. V.C.C. § 2-106(4). 
As used in insurance law, term refers to the termi
nation of an insurance policy by an act of either or both 
of the parties to it, prior to the ending of the policy 
206 
period. Morey v. Educator & Executive Insurers, Inc., 
45 Ohio St.2d 196, 342 N.E.2d 691. 
See also Abrogation; Cancel; Revocation; Termination. 
Cancellation clause. A provision in a contract or lease 
which permits the parties to cancel or discharge their 
obligations thereunder. 
Cancellatura Ikrens�l�tyur�/. In old English law, a can
celing. 
Cancelled check. A check which bears the notation of 
cancellation of the drawee bank as having been paid and 
charged to the drawer. Vsed as evidence of payment of 
an obligation to the payee. 
Cancelli Ikrenselay I. The lines drawn on the face of a 
will or other writing, with the intention of revoking or 
annulling it. 
Candidate. One who seeks or offers himself, or is put 
forward by others, for an office, privilege, or honor. 
State ex reI. Ranney v. Corey, Ohio App., 47 N.E.2d 799, 
800. A nominee. 
Canfara. A trial by hot iron, formerly used in England. 
Cannabis Ikren�b�s/. Commonly called marihuana; 
cannabis sativa L embraces all marihuana-producing 
cannabis. V. S. v. Honneus, C.A.Mass., 508 F.2d 566, 
574. All parts of the plant Cannabis sativa L., whether 
growing or not; the seeds thereof; the resin extracted 
from any part of such plant; and every compound, 
manufacture, salt, derivative, mixture, or preparation of 
such plant, its seeds or resin, are included in the term 
"marihuana." 21 V.S.C.A. § 802(16). See also Con
trolled substance; Marihuana. 
Cannon rule. Purchase or ownership of stock, even of a 
controlling interest, in a domestic corporation by a for
eign corporation does not constitute doing business by 
the foreign parent sufficient to subject it to service of 
process in state of subsidiary's operation. Mid-Conti
nent Tel. Corp. v. Home Tel. Co., D.C.Miss., 307 F.Supp. 
1014, 1019. 
Cannot. Denotes that one is not able (to do some act). 
But the term is often equivalent to "shall not." 
Canon Ikren�n/. A law, rule, or ordinance in general, 
and of the church in particular. An ecclesiastical law or 
statute. A rule of doctrine or discipline. A criterion or 
standard of judgment. A body of principles, standards, 
rules, or norms. 
In England, a cathedral dignitary, appointed some
times by the Crown and sometimes by the bishop. 
Canon law. A body of Roman ecclesiastical jurispru
dence compiled in the twelfth, thirteenth and fourteenth 
centuries from the opinions of the ancient Latin fathers, 
the decrees of General Councils, and the decretal epis
tles and bulls of the Holy See. The canon law is 
contained in two principal parts,-the decrees or ecclesi
astical constitutions made by the popes and cardinals; 
and the decretals or canonical epistles written by the 
pope, or by the pope and cardinals, at the suit of one or 
more persons. As the decrees set out the origin of the

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canon law, and the rights, dignities, and decrees of 
ecclesiastical persons, with their manner of election, 
ordination, etc., so the decretals contain the law to be 
used in the ecclesiastical courts. The canon law forms 
no part of the law of England, unless it has been 
brought into use and acted on there. 
Canons of construction. The system of fundamental 
rules and maxims which are recognized as governing the 
construction or interpretation of written instruments. 
Canons of descent. The legal rules by which inheritanc
es are regulated, and according to which estates are 
transmitted by descent from the ancestor to the heir. 
Canons of ethics. See Code of Professional Responsibili
ty, below. 
Canons of inheritance. The legal rules by which inheri
tances are regulated, and according to which estates are 
transmitted by descent from the ancestor to the heir. 2 
Bl.Comm. 208. 
Canons of judicial ethics. Standards of ethical conduct 
for members of the judiciary. Such were initially 
adopted by the American Bar Association and later by 
most states. 
Canons of taxation. Tax criteria used in the selection of 
a tax base originally discussed by Adam Smith in his 
"Wealth of Nations." Canons of taxation include the 
following: equality; convenience; certainty; and econo
my. 
Code of prof essional responsibilit y. "Canons" of the 
Code of Professional Responsibility are statements of 
axiomatic norms expressing in general terms the stan
dards of professional conduct expected of lawyers in 
their relationship with the public, the legal system and 
with the legal profession. Such were initially adopted 
by the American Bar Association and later by most 
states. See now Model Rules of Professional Conduct, 
infra. 
Canonical /k.m6n�k�I/. Pertaining to, or in conformity 
to, the canons of the church. 
Canonical disability. Incurable physical impotency or 
incapacity for copulation. 
Canonical obedience. That duty which a clergyman 
owes to the bishop who ordained him, to the bishop in 
whose diocese he is beneficed, and also to the metropoli
tan of such bishop. 
Canonicus /k�n6n�k�s/. In old English law, a canon. 
Canonist. One versed and skilled in the canon law; a 
professor of ecclesiastical law. 
Canonry. In English ecclesiastical law, an ecclesiastical 
benefice, attaching to the office of canon. 
Cant. In the civil law, a method of dividing property 
held in common by two or more joint owners. It may be 
avoided by the consent of all of those who are interested, 
in the same manner that any other contract or agree
ment may be avoided. 
CAPACITY DEFENSE 
Canterbury, Archbishop of. In English ecclesiastical 
law, the primate of all England; the chief ecclesiastical 
dignitary in the church. Also known as the Spiritual 
Lord of Parliament. His customary privilege is to 
crown the kings and queens of England. Has also, by 25 
. Hen. VIII, c. 21, the power to grant dispensations. 
Cantred /krentr�d/. In old English law, a district com
prising a hundred villages; a hundred. A term used in 
Wales in the same sense as "hundred" is in England. 
Canum /keyn�m/. In feudal law, a species of duty or 
tribute payable from tenant to lord, usually consisting of 
produce of the land. 
Canvass. The act of examining and counting the re
turns of votes cast at a public election to determine 
authenticity. Personal solicitation of votes or survey to 
determine probable vote outcome. 
Canvasser. Any of certain persons, as officers of a state, 
county, or district, intrusted with the duty of examining 
the returns of votes cast at an election. See Canvass. 
One who, in a given town, city, or county, goes from 
house to house in an effort to take orders for goods; in 
this sense, to be distinguished from traveling salesmen. 
Cap. Term variously applied to statutorily imposed lim
its on recovery of noneconomic damages in tort actions; 
to limits on amount interest rates can increase annually 
on adjustable rate mortgages. See also Rate (Rate cap). 
Capable. Susceptible; competent; qualified; fitting; 
possessing legal power or capacity. Able, fit or adapted 
for. See Capacity. 
Capacity. Legal qualification (i.e. legal age), competen
cy, power or fitness. Mental ability to understand the 
nature and effects of one's acts. 
Capacity to sue. The legal ability of a particular individ
ual or entity to sue in, or to be brought into, the courts 
of a forum. Johnson v. Helicopter & Airplane Services 
Corp., D.C.Md., 404 F.Supp. 726, 729. 
Criminal capacity. Accountability for committing 
crime; e.g., child under 7 years of age lacks criminal 
capacity. Application of Gault, 387 U.S. 1, 87 S.Ct. 
1428, 1438, 18 L.Ed.2d 527. 
See also Competency; Disabil ity; Earning capacity; Fi
duciary capacity; Incapacity; Legal age; Legal capacity to 
sue; Mental capacity or competence; Standing to sue 
doctrine; Substantial capacity test; Testamentary (Testa
mentary capacity). 
Capacity defense. Generic term to describe lack of 
fundamental ability to be accountable for actions, as one 
under duress lacks the capacity to contract and hence 
when sued on such contract he interposes defense of 
lack of capacity. Similarly, a child accused of crime 
committed when he was under age of 7, his defense 
being lack of criminal capacity. As a defense, it tends to 
negate some essential element of the action required for 
responsibility. See also Competency proceedings; Com
petency to stand trial; Defense; Insanity; Intoxication.

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CAPAX DOLI 
Capax doli Ikeypreks dowlay/ . Lat. Capable of commit
ting crime, or capable of criminal intent. The phrase 
describes the condition of one who has sufficient intelli
gence and comprehension to be held criminally respon
sible for his deeds. 
Capax negotii Ikeypreks n;:)gowshiyay I. Competent to 
transact affairs; having business capacity. 
Cape Ikeyp(iy)/. In English practice, a judicial writ, now 
abolished, touching a plea of lands or tenements. It was 
divided into cape magnum, or the grand cape, which lay 
before appearance to summon the tenant to answer the 
default, and also over to the demandant and cape par
vum, or petit cape, after appearance or view granted, 
summoning the tenant to answer the default only. It 
was called a "cape," from the word with which it com
menced, and a "grand cape" (or cape magnum ) to distin
guish it from the petit cape, which lay after appearance. 
Extension of land jutting out into water as a penin
sula. 
Cape ad valentiam Ikeypiy red v;:)lensh(iy);:)m/. A spe
cies of cape magnum. 
Capella I k;:)pel;:) I . A box, cabinet, or repository in which 
were preserved the relics of martyrs. A small building 
in which relics were preserved; an oratory or chapel. 
Capers Ikeyp;:)rz/. Vessels of war owned by private 
persons, and different from ordinary privateers only in 
size, being smaller. 
Capias Ikeypiy;:)s/krepiy;:)s/. Lat. "That you take." The 
general name for several species of writs, the common 
characteristic of which is that they require the officer to 
take a named defendant into custody. 
In English practice, the process on an indictment 
when the person charged is not in custody, and in cases 
not otherwise provided for by statute. 
See also Cepi. 
Capias ad audiendum judicium Ikeypiy;:)s red odiyend;:)m 
juwdish(iy);:)m/. A writ issued, in a case of misdemean
or, after the defendant has appeared and is found guilty, 
to bring him to hear judgment if he is not present when 
called. 
Capias ad com putandum Ikeypiy;:)s red kom
pyuwtrend;:)m/. In the action of account render, after 
judgment of quod com putet, if the defendant refuses to 
appear personally before the auditors and make his 
account, a writ by this name may issue to compel him. 
The writ is now disused. 
Capias ad respondendum Ikeypiy;:)s red re
spondend;:)m/. A judicial writ (usually simply termed a 
"capias, " and commonly abbreviated to ca. resp.) by 
which actions at law were frequently commenced; and 
which commands the sheriff to take the defendant, and 
him safely keep, so that he may have his body before the 
court on a certain day, to answer the plaintiff in the 
action. It notifies defendant to defend suit and procures 
his arrest until security for plaintiffs claim is furnished. 
Capias ad satisfaciendum Ikeypiy;:)s red sred;:)sfey
shiye��;:)m/. A writ of execution (usually termed, for 
208 
brevity, a "ca. sa."), which commands the sheriff to take 
the party named, and keep him safely, so that he may 
have his body before the court on a certain day, to 
satisfy the damages or debt and damages in certain 
actions. It deprives the party taken of his liberty until 
he makes the satisfaction awarded. A body execution 
enabling judgment creditor in specified types of actions 
to cause arrest of judgment debtor and his retention in 
custody until he either pays judgment or secures his 
discharge as insolvent debtor. Perlmutter v. DeRowe, 
58 N.J. 5, 274 A.2d 283, 286. 
Capias extendi facias Ikeypiy;:)s ;:)kstenday feyshiy;:)s/. A 
writ of execution issuable in England against a debtor to 
the crown, which commands the sheriff to "take" or 
arrest the body, and "cause to be extended" the lands 
and goods of the debtor. 
Capias in withernam Ikeypiy;:)s in wio;:)rn;:)m/. A writ, 
in the nature of a reprisal, which lies for one whose 
goods or cattle, taken under a distress, are removed 
from the county, so that they cannot be replevied, com
manding the sheriff to seize other goods or cattle of the 
distrainor of equal value. 
Capias pro fine Ikeypiy;:)s prow fityniy I. (That you take 
for the fine or in mercy.) Formerly, if the verdict was 
for the defendant, the plaintiff was adjudged to be 
amerced for his false claim; but, if the verdict was for 
the plaintiff, then in all actions vi et armis, or where the 
defendant, in his pleading, had falsely denied his own 
deed, the judgment contained an award of a capiatur pro 
fine; and in all other cases the defendant was adjudged 
to be amerced. The insertion of the misericordia or of 
the capiatur in the judgment is now unnecessary. A 
writ in all respects an execution for collection of fine. 
Board of Councilmen of City of Frankfort v. Rice, 249 
Ky. 771, 61 S.W.2d 614, 615. 
Capias ul lagatum Ikeypiy;:)s ;J(t)bgeyt;:)ml . (You take 
the outlaw.) In English practice, a writ which lies 
against a person who has been outl awed in an action, by 
which the sheriff is commanded to take him, and keep 
him in custody until the day of the return, and then 
present him to the court, there to be dealt with for his 
contempt. 3 Bl.Comm. 284. 
Capiatur pro fine Ikeypiyeyt;:)r prow filyniy I. (Let him 
be taken for the fine.) In English practice, a clause 
inserted at the end of old judgment records in actions of 
debt, where the defendant denied his deed, and it was 
found against him upon his false plea, and the jury were 
troubled with the trial of it. 
Capita Ikrep;:)t;:)/. Heads, and, figuratively, entire bodies, 
whether of persons or animals. 
Persons individually considered, without relation to 
others (polls); as distinguished from stirpes or stocks of 
descent. The term in this sense, making part of the 
common phrases, in capita, per capita, is derived from 
the civil law. 
Capital. Accumulated goods, possessions, and assets, 
used for the production of profits and wealth. Owners' 
equity in a business. Often used equally correctly to

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mean the total assets of a business. Sometimes used to 
mean capital assets. 
In accounting, the amount invested in a business. In 
economic theory there are several meanings. "Capital" 
may be used to mean: capital goods, that is, the tools of 
production; the money available for investment, or in
vested; the discounted value of the future income to be 
received from an investment; the real or money value of 
total assets; money or property used for the production 
of wealth; sum total of corporate stock. 
See also Fixed capital; Floating or circulating capital; 
Impaired capital; Legal capital; Stated capital. 
Au thorized capital. See Stock (Autho rized stock ). 
Capital account. A term used in accounting to describe 
the equity of a business. In a partnership, each partner 
has a capital account which represents his contribution 
or investment in the partnership. In a corporation, the 
capital account represents the amount invested by 
shareholders, both as stock and as additional paid-in 
capital. In a sole proprietorship, the amount contribut
ed by the owner to start the business represents the 
owner's capital account. 
Capital assets. See Assets. 
Capital budget. A plan for the acquisition of long-term 
assets (such as plant and equipment), showing planned 
expenditures by object and date. 
Capital case or crime. One in or for which death penal
ty may, but need not necessarily, be imposed. 
Capital contribution. Cash, property, or services con
tributed by partners to partnership. 
Various means by which a shareholder makes addi
tional funds available to the corporation (i.e., placed at 
the risk of the business) without the receipt of additional 
stock. Such contributions are added to the basis of the 
shareholder's existing stock investment and do not gen
erate income to the corporation. I.RC. § 118. 
Capital costs. Costs for improvements to property; such 
are depreciable over the useful life of the improvements. 
Capital expenditur e. An outlay of funds for the acquisi
tion or improvement of a fixed asset which extends the 
life or increases the productivity of the asset. The 
expenditure for the acquisition of an asset should be 
capitalized and depreciated over the estimated useful 
life of the asset. I.RC. § 263. 
Capital gain. The profit realized on the sale or ex
change of a capital asset. I.RC. § 1201. The gain is the 
difference between the cost or the adjusted basis of an 
asset and the net proceeds from the sale or exchange of 
such asset. 
Capital gains tax. A provision formerly in the income 
tax laws that profits from the sale of capital assets are 
taxed at separate (lower) rates than the rate applicable 
to ordinary income. The Tax Reform Act of 1986 
changed the tax treatment of long term capital gains, 
and effective in 1987, long term capital gains are taxed 
to individuals as ordinary income. 
CAPITAL 
Capital goods. Durable goods used by business to pro
duce other goods and services; examples of capital goods 
are machines and equipment. 
Capital impairment. Reduction of assets of corporation 
below aggregate of outstanding shares of capital stock. 
Capital improvement. See Capital expenditur e, above. 
Capital increase. An increase not attributable to earn
ings. 
Capital investment. Acquisition price of a "capital as
set", Commissioner of Internal Revenue v. Rowan Drill
ing Co., C.C.A.Tex., 130 F.2d 62, 64, 65; capital stock, 
surplus and undivided profits, O'Connor v. Bankers 
Trust Co., 159 Misc. 920, 289 N.Y.S. 252, 276; money 
spent to increase an asset, Peerless Stages v. Commis
sioner of Internal Revenue, 125 F.2d 869, 871. See also 
Capital expenditur e, above. 
Capital lease. A contract that transfers ownership of 
property to the lessee at the end of the lease term. A 
contract for the lease of property which possesses the 
characteristics of a purchase. 
Capital leverage. A company's ability to generate an 
additional return for stockholders by borrowing, then 
using the borrowed funds to obtain a return greater 
than the interest rate. 
Capital loss. A tax term used in reference to a loss 
incurred in the sale or exchange of a capital asset. 
Beginning in 1988, the classification as to short or long 
term capital losses is no longer relevant. 
Capital markets. Financial markets in which long term 
securities are bought and sold. 
Capital offense. See Capital case or crime, above. 
Capital outl ay. Money expended in acquiring, equip
ping, and promoting an enterprise. 
Capital punishment. Punishment by death for capital 
crimes. 
Capital ratio. Ratio of capital to assets. 
Capital recovery. Collection of charged-off bad debt pre
viously written off against the allowance for doubtful 
accounts. 
Capital return. In tax accounting, payments received by 
taxpayer which represent the individual's cost or capital 
and hence not taxable as income. Commissioner v. 
Liftin, C.A.4th, 317 F.2d 234. 
Capital stock. The shares of stock representing owner
ship of a business. The types of stock include preferred 
stock and common stock. Amount of stock that a corpo
ration may issue; amount subscribed, contributed or 
secured to be paid in. Haggard v. Lexington Utilities 
Co., 260 Ky. 261, 84 S.W.2d 84, 87. Corporate assets or 
property contributed by shareholders. Bates v. Daley's 
Inc., 5 Cal.App.2d 95, 42 P.2d 706, 709. Liability of the 
corporation to its shareholders, after creditors' claims 
have been liquidated. Valuation of the corporation as a 
business enterprise.

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CAPITAL 
Capital stock tax. A state-level tax, usually imposed on 
out-of-state corporations for the privilege of doing busi
ness in the state. The tax may be based on the entity's 
apportionable income or payroll, or on its apportioned 
net worth as of a specified date. Such tax was repealed 
at the federal level by the Revenue Act of 1945, §§ 201, 
202. 
Capital structure. The composition of a corporation's 
equities; the relative proportions of short-term debt, 
long-term debt, and owners' equity. In finance the total 
of bonds (or long-term money) and ownership interests 
in a corporation; that is, the stock accounts and surplus. 
See also Capitalization. 
Capital surplus. Amounts paid to a corporation in ex
cess of the par value of stock, generally referred to as 
additional paid-in capital. 
An equity or capital account which reflects the capital 
contributed for shares not allocated to stated capital. 
The excess of issuance price over the par value of issued 
shares or the consideration paid for no par shares allo
cated specifically to capital surplus. 
Capital transactions. Purchases, sales and exchanges of 
capital assets. 
Paid-in-capital. Amount paid for stock of corporation 
that has been sold. 
Stated capital. The sum of (a) the par value of all 
shares with par value that have been issued, (b) the 
amount of the consideration received for all shares with
out par value that have been issued, except such part of 
the consideration therefor as may have been allocated to 
surplus in a manner permitted by law, and (c) such 
other amounts as have been transferred to stated capi
tal, whether upon the distribution of shares or other
wise, minus all reductions from such sums as have been 
effected in a manner permitted by law and surplus. 
Capitale Ikrep:;>teyliy I. A thing which is stolen, or the 
value of it. 
Capitalis I krep:;>teyl:;>s I . In old English law, chief; princi
pal; at the head. A term applied to persons, places, 
judicial proceedings, and some kinds of property. 
Capitalis baro Ikrep:;>teyi:;>s brerow/. In old English law, 
chief baron. Capitalis baro scaccarii domini regis, chief 
baron of the exchequer. 
Capitalis custos Ikrep:;>teyi:;>s k;}stows/. Chief warden or 
magistrate; mayor. 
Capitalis debitor Ikrep:;>teyl:;>s deb:;>t:;>r I. The chief or 
principal debtor, as distinguished from a surety (plegi
us). 
Capitalis dominus Ikrep:;>teyl:;>s d6m:;>n:;>s/. Chief lord. 
Capitalis justiciarius Ikrep:;>teyl:;>s j:;>stishiyeriy:;>s/. The 
chief justiciary; the principal minister of state, and 
guardian of the realm in the king's absence. This office 
originated under William the Conqueror; but its power 
was greatly diminished by Magna Charta, and finally 
distributed among several courts by Edward I. 3 Bl. 
Comm. 38. 
21 0 
Capitalis justiciarius ad placita coram rege tenenda 
Ikrep:;>teyl:;>s j:;>stishiyeriy:;>s red plres:;>t:;> k6r:;>m riyjiy 
t:;>nend:;>I . Chief justice for holding pleas before the 
king. The title of the chief justice of the king's bench, 
first assumed in the latter part of the reign of Henry III. 
Capitalis justiciarius banci Ikrep:;>teyi:;>s j:;>stishiyeriy:;>s 
brensay I. Chief justice of the bench. The title of the 
chief justice of the (now) court of common pleas, first 
mentioned in the first year of Edward I. 
Capitalis justiciarius totius Anglire Ikrep:;>teyl:;>s 
j:;>stishiyeriy:;>s towshiy:;>s reIJgliyiy I. Chief justice of all 
England. The title of the presiding justice in the court 
of aula regis. 3 Bl.Comm. 38. 
Capitalis plegius Ikrep:;>teyl:;>s plejiy:;>sI . A chief pledge; 
a head borough. 
Capitalis reditus Ikrep:;>teybs red:;>t�s/. A chief rent. 
Capitalist. One exclusively dependent on accumulated 
property, whether denoting a person of large wealth or 
one having an income from investments. An individual 
who owns all or part of an income-producing asset. 
Capitalis terra Ikrep:;>teyl:;>s tehr:;> I . A head-land. A 
piece of land lying at the head of other land. 
Capitalization I krep:;>t:;>i:;>zeysh:;>n I . Capitalization repre
sents the total amount of the various securities issued by 
a corporation. Capitalization may include bonds, deben
tures, preferred and common stock and surplus. Bonds 
and debentures are usually carried on the books of the 
issuing company in terms of their par or face value. 
Preferred and common shares may be carried in terms 
of par or stated value. Stated value may be an arbi
trary figure decided upon by the directors or it may 
represent the amount received by the company from the 
sale of the securities at the time of issuance. 
To record an expenditure that may benefit a future 
period as an asset rather than to treat the expenditure 
as an expense of the period of its occurrence. 
See Capitalize; Thin canitalization. 
Capitalization accounting method. A method of deter
mining the present value of an asset that is expected to 
produce a stream of future benefits. This involves dis
counting the stream of expected future benefits at an 
appropriate rate. 
A method of measuring values of realty for purpose of 
determining values of mortgages by expertly estimating 
the gross income which property should realize, and 
separately the expenses reasonably required to carry it, 
and thus arriving at a fair estimate of net income and 
using a capitalization figure or factor, expertly chosen. 
Depreciation must be taken into consideration in use of 
such method. In re New York Title & Mortgage Co. 
(Series B-K), 21 N.Y.S.2d 575, 594, 595. 
Capitalization rate. The rate of interest used in calcu
lating the present value of future periodic payments. 
Capitalize. To convert periodic payments into an equiv
alent sum or sum in hand. To compute the present 
value of income extended over a period of time. To 
record an expenditure as an asset when the expenditure

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benefits a period in excess of one year. An example 
includes improvements to a commercial building. The 
cost of the improvements is recorded as an asset on the 
balance sheet and written off over the estimated useful 
life of the improvement. 
Capitaneus I krep;}teyniy;}s I . A tenant in capite. He 
who held his land or title directly from the king himself. 
A captain; a naval commander. This latter use began 
A.D. 1264. Capitaneus, Admiralius. A commander or 
ruler over others, either in civil, military, or ecclesiasti
cal matters. 
Capita, per Ip�r krep;}t;}I . By heads; by the poll; as 
individuals. In the distribution of an intestate's person
alty, the persons legally entitled to take are said to take 
per capita, that is, equal shares, when they claim, each 
in his own right, as in equal degree of kindred; in 
contradistinction to claiming by right of representation, 
or per stirpes. See Per capita. 
Capitare Ikrep;}teriy I. In old law and surveys. To head, 
front, or abut; to touch at the head, or end. 
Capitatim I krep;}teyt;}m I . Lat. By the head; by the 
poll; severally to each individuaL 
Capitation tax. A poll tax (q.v.). A tax or imposition 
upon the person. It is a very ancient kind of tribute, 
and answers to what the Latins called "tributum, " by 
which taxes on persons are distinguished from taxes on 
merchandise, called "vectigalia. " 
Capite Ikrep;}tiy I. Lat. By the head. Tenure in capite 
was an ancient feudal tenure, whereby a man held lands 
of the king immediately. It was of two sorts,-the one, 
principal and general, or of the king as the source of all 
tenure; the other, special and subaltern, or of a particu
lar subject. It is now abolished. As to distribution per 
capita, see Capita, per. 
Capite minutus Ikrep;}tiy m;}nyuwt;}s/. In the civil law, 
one who had suffered capitis diminu tio, one who lost 
status or legal attributes. 
Capitis diminutio Ikrep;}t;}s dim;}n(y)uwsh(iy)ow I. In 
Roman law, a diminishing or abridgment of personality; 
a loss or curtailment of a man's status or aggregate of 
legal attributes and qualifications. 
Capitis diminutio maxima Ikrep;}t;}s dim;}n(y)uw
sh(iy)ow mreks;}m;}/. The highest or most comprehen
sive loss of status. This occurred when a man's condi
tion was changed from one of freedom to one of bondage, 
when he became a slave. It swept away with it all 
rights of citizenship and all family rights. 
Capitis diminutio media Ikrep;}t;;,s dim;}n(y)uwsh(iy)ow 
miydiy;}I . A lesser or medium loss of status. This 
occurred where a man lost his rights of citizenship, but 
without losing his liberty. It carried away also the 
family rights. 
Capitis diminutio mmlma Ikrep;}t;}s dim;}n(y)uw
sh(iy)ow min;}m;}/. The lowest or least comprehensive 
degree of loss of status. This occurred where a man's 
family relations alone were changed. It happened upon 
the arrogation of a person who had been his own master 
CAPRICIOUS DISREGARD 
(sui juris), or upon the emancipation of one who had 
been under the patria po testas. It left the rights of 
liberty and citizenship unaltered. 
Capititium Ikrep;}tish(iy);}m/. A covering for the head, 
mentioned in St. 1 Hen. IV, and other old statutes, 
which prescribe what dresses shall be worn by all de
grees of persons. 
Capitula I k;}pity;}l;} I . Collections of laws and ordinances 
drawn up under heads of divisions. The term is used in 
the civil and old English law, and applies to the ecclesi
astical law also, meaning chapters or assemblies of eccle
siastical persons. The Royal and Imperial Capitul a 
were the edicts of the Frankish Kings and Emperors. 
Capitula coronre Ik;}pity;}b k;}rowniy I. Chapters of the 
crown. Chapters or heads of inquiry, resembling the 
capitula itineris (infra) but of a more minute character. 
Capitula de judreis Ik;}pity;}b diy juwdiy;}s/. A register 
of mortgages made to the Jews. 2 Bl.Comm. 343. 
Capitula itineris Ik;}pity;}b aytin;}r;}s/. Articles of in
quiry which were anciently delivered to the justices in 
eyre when they set out on their circuits. These sched
ules were designed to include all possible varieties of 
crime. 
Capitula ruralia Ik;}pity;}l;} rureyliy;}I . Assemblies or 
chapters, held by rural deans and parochial clergy, 
within the precinct of every deanery; which at first 
were every three weeks, afterwards once a month, and 
subsequently once a quarter. 
Capitulary Ik;}pity;}l;}riy/. In French law, a collection 
and code of the laws and ordinances promulgated by the 
kings of the Merovingian and Carlovingian dynasties. 
Any orderly and systematic collection or code of laws. 
See Code. 
In ecclesiastical law, a collection of laws and ordi
nances orderly arranged by divisions. A book contain
ing the beginning and end of each Gospel which is to be 
read every day in the ceremony of saying mass. 
Capitulation Ik;}pity;}leysh;}n/. The act or agreement of 
surrendering upon negotiated or stipulated terms. 
Capituli agri Ik;}pity;}lay regray I. Head-fields; lands 
lying at the head or upper end of furrows, etc. 
CapitUlum Ik;}pity;}l;}m/. Lat. A leading division of a 
book or writing; a chapter; a section. 
Capper Ikrep;}r/. A decoy or lure for purpose of swin
dling. Barron v. Board of Dental Examiners of Califor
nia, 109 Cal.App. 382, 293 P. 144, 145. 
Caprice Ik;}priys/. Whim, arbitrary, seemingly un
founded motivation. Disposition to change one's mind 
impulsively. 
Capricious disregard. A wilful and deliberate dis
regard of competent testimony and relevant evidence 
which one of ordinary intelligence could not possibly 
have avoided in reaching the result. Unemployment 
Compensation Bd. of Review v. Kessler, 27 Pa.Cmwlth. 
1, 365 A.2d 459, 462.

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CAPTAIN 
Captain. A head-man; commander; commanding offi
cer of troops, ship, etc. 
Captain of the ship doctr�ne. This doctrine imposes 
liability on surgeon in charge of operation for negligence 
of his assistants during period when those assistants are 
under surgeon's control, even though assistants are also 
employees of hospital. This concept is an adaptation of 
the "borrowed servant" principle in law of agency to 
operating room of hospital. Thomas v. Hutchinson, 442 
Pa. 118, 275 A.2d 23, 27. 
Captation. In French law, the act of one who succeeds 
in controlling the will of another, so as to become 
master of it; used in an invidious sense. It was former
ly applied to the first stage of the hypnotic or mesmeric 
trance. 
Captator Ikrepteyt�r I. A person who obtains a gift or 
legacy through artifice. See Captation. 
Captio Ikrepshiyow I. In old English law and practice, a 
taking or seizure; arrest; receiving; holding of court. 
Caption Ikrepsh�n/. The heading or introductory part of 
a pleading, motion, deposition, or other legal instrument 
which indicates the names of the parties, name of the 
court, docket or file number, title of the action, etc. 
Fed.R. Civil P. lO(a). 
Captive. Prisoner of war. 
Captive audience. Any group subject to a speaker or to 
a performance and which is not free to depart without 
adverse consequences. 
Captor. In international law, one who takes or seizes 
property in time of war; one who takes the property of 
an enemy. In a stricter sense, one who takes a prize at 
sea. Oakes v. U. S., 174 U.S. 778, 19 S.Ct. 864, 43 L.Ed. 
1169. The term also designates a belligerent who has 
captured the person of an enemy. 
Capture. Act of catching or controlling by force, threats 
or strategy. In international law, the taking or wrest
ing of property from one of two belligerents by the 
other. Also a taking of property by a belligerent from 
an offending neutral. Capture, in technical language, is 
a taking by military power; a seizure is a taking by civil 
authority. 
Caput Ikrep�t/. A head; the head of a person; the 
whole person; the life of a person; one's personality; 
status; civil condition. 
At common law, a head. Caput comitatis, the head of 
the county; the sheriff; the king. A person; a life. 
The upper part of a town. A castle. 
Capitis restimatio Ikrep�t�s est�meysh(iy)ow/. In Saxon 
law, the estimation or value of the head, that is, the 
price or value of a man's life. 
Caput anni Ikrep�t renay/. The first day (or beginning) 
of the year. 
Caput baronire Ikrep�t b�r6wniyiy I. The castle or chief 
seat of a baron. 
212 
Caput jejunii /krep�t j�juwniyay / . The beginning of the 
Lent fast, i.e., Ash Wednesday. 
Caput loci Ikrep�t 16wsay/. The head or upper part of a 
place. 
Caput lupinum Ikrep�t luwp�n�m/. In old English law, 
a wolfs head. An outlawed felon was said to be caput 
lupinum, and might be knocked on the head like a wolf. 
4 Bl.Comm. 284, 320. 
Caput mortuum Ikrep�t m6rtyuw�m/. A dead head; 
dead; obsolete. 
Caput portus Ikrep�t p6rt�s/. In old English law, the 
head of a port. The town to which a port belongs, and 
which gives the denomination to the port, and is the 
head of it. 
Caput , principium, et finis Ikrep�t, prinsipiy�m, et 
fayn�s/. The head, beginning, and end. A term applied 
in English law to the king, as head of parliament. 1 
Bl.Comm. 188. 
In civil law, it signified a person's civil condition or 
status, and among the Romans, consisted of three com
ponent parts or elements,-li bertas, liberty; civitas, citi
zenship; and familia, family. 
Caputagium Ikrep�teyj(iy)�m/. In old English law, head 
or poll money, or the payment of it. 
Caputium Ik�pyuwsh(iy)�m/. In old English law, a head 
of land; a headland. 
Carat Ikrer�t/. A measure of weight for diamonds and 
other precious stones, equivalent to three and one-sixth 
grains Troy, though divided by jewelers into four parts 
called "diamond grains." Also a standard of fineness of 
gold, twenty-four carats being conventionally taken as 
expressing absolute purity, and the proportion of gold to 
alloy in a mixture being represented as so many carats. 
Carcan Ikark�n/. In French law, an instrument of 
punishment, somewhat resembling a pillory. It some
times signifies the punishment itself. 
Carcanum Ikarkeyn�m/. A gaol; a prison. 
Carcare Ikarkeriy/. In old English law, to load; to load 
a vessel; to freight. 
Carcatus Ikarkeyt�s/. Loaded; freighted, as a ship. 
Carcelage Ikars�l�j/. Gaol-dues; prison-fees. 
Carcer Ikars�r/. A prison or gaol. Strictly, a place of 
detention and safe-keeping, and not of punishment. 
Carcer ad homines custodiendos, non ad puniendos, 
dari debet Ikars�r red h6m�niyz k�stowdiyendows, non 
red pyuwniyendows, deray deb�t/. A prison should be 
used for keeping persons, not for punishing them. 
Carcer non supplicii causa sed custodire constitutus 
Ikars�r non s�plisiyay k6za sed k�st6wdiyiy 
konst�tyuwt�sl . A prison is ordained not for the sake of 
punishment, but of detention and guarding. 
Cardholder. A member of a group such as a union 
wherein the card is the symbol and identification of 
membership.

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213 
Care. Watchful attention; concern; custody; diligence; 
discretion; caution; opposite of negligence or careless
ness; prudence; regard; preservation; security; sup
port; vigilance. To be concerned with, and to attend to, 
the needs of oneself or another. 
In the law of negligence, the amount of care demand
ed by the standard of reasonable conduct must be in 
proportion to the apparent risk. As the danger becomes 
greater, the actor is required to exercise caution com
mensurate with it. Foy v. Friedman, 280 F.2d 724. 
There are three degrees of care which are frequently 
recognized, corresponding (inversely) to the three de
grees of negligence, viz.: slight care, ordinary care, and 
great care. This division into three degrees of care, 
however, does not command universal assent. 
Slight care is such as persons of ordinary prudence 
usually exercise about their own affairs of slight impor
tance. Or it is that degree of care which a person 
exercises about his own concerns, though he may be a 
person of less than common prudence or of careless and 
inattentive disposition. 
Ordinary care is that degree of care which persons of 
ordinary care and prudence are accustomed to use and 
employ, under the same or similar circumstances. Or it 
is that degree of care which may reasonably be expected 
from a person in the party's situation, that is, reason
able care. See also Ordinary. 
Reasonable care is such a degree of care, precaution, or 
diligence as may fairly and properly be expected or 
required, having regard to the nature of the action, or of 
the SUbject-matter, and the circumstances surrounding 
the transaction. It is such care as an ordinarily prudent 
person would exercise under the conditions existing at 
the time he is called upon to act. Substantially synon
ymous with ordinary or due care. 
Great care is such as persons of ordinary prudence 
usually exercise about affairs of their own which are of 
great importance; or it is that degree of care usually 
bestowed upon the matter in hand by the most compe
tent, prudent, and careful persons having to do with the 
particular subject. 
A high degree of care is not the legal equivalent of 
reasonable care. It is that degree of care which a very 
cautious, careful, and prudent person would exercise 
under the same or similar circumstances; a degree of 
care commensurate with the risk of danger. 
Highest degree of care and utmost degree of care have 
substantially the same meaning. "Highest degree of 
care" only requires the care and skill exacted of persons 
engaged in the same or similar business. It means the 
highest degree required by law where human safety is at 
stake, and the highest degree known to the usage and 
practice of very careful, skillful, and diligent persons 
engaged in the same business by similar means or agen
cies. 
See also Diligence; Due care; Reasonable care; Sup
port. 
Careless. Absence of care; negligent; reckless. 
CARNAL KNOWLEDGE 
Carena I k:;lriyn:;l I . A term used in the old ecclesiastical 
law to denote a period of forty days. 
Carence I karons I . In French law, lack of assets; insol
vency. 
Careta (spelled, also, Carreta and Carecta) Ik:;lriyt:;l/. A 
cart; a cart-load. 
Caretorius Ikrer:;ltoriY:;lsl or carectarius Ikrer:;lkteriY:;ls/. 
A carter. 
Carga Ikarg:;l/. In Spanish law, an incumbrance; a 
charge. 
Cargaison Ikargeyzo(w)n/. In French commercial law, 
cargo; lading. 
Cargare Ikargeriy/. In old English law, to charge. 
Cargo. The load (i.e. freight) of a vessel, train, truck, 
airplane or other carrier. See Freight. 
Cariagium I kreriyeyj iY:;lm I . In old English law, car
riage; the carrying of goods or other things for the king. 
Caristia I k:;lrist(i)iY:;l I . Dearth, scarcity, dearness. 
Cark. In old English law, a quantity of wool, whereof 
thirty made a sarplar. (The latter is equal to 2,240 
pounds in weight or one English ton). 
Carlisle tables. A mortality table for actuarial use 
compiled between 1779 and 1787 so named for the city 
in England where the st.atistics were compiled. 
Carload. The quantity usually contained in an ordinary 
freight car used for transporting the particular commod
ity involved. A commercial unit which by commercial 
usage is a single whole for purposes of sale and division. 
U.C.C. § 2-105(6). 
Carmack Act. Amendment to Interstate Commerce Act 
prescribing liability of carrier for loss, damage, or injury 
to property carried in interstate commerce. 
Carmen Ikarm:;ln/. In the Roman law, literally, a verse 
or song. A formula or form of words used on various 
occasions, as of divorce. 
Car mile. Movement of loaded freight car one mile. 
Carnal Ikarn:;ll/. Pertaining to the body, its passions 
and its appetites; animal; fleshly; sensual; impure; 
sexual. People v. Battilana, 52 Cal.App.2d 685, 126 P.2d 
923, 928. 
Carnal abuse. An act of debauchery of the female 
sexual organs by those of the male which does not 
amount to penetration; the offense commonly called 
statutory rape consists of carnal abuse. An injury to 
the genital organs in an attempt at carnal knowledge, 
falling short of actual penetration. Carnal knowledge of 
a female child of tender age includes abuse. Carnal 
abuse and "carnal knowledge" are synonymous in many 
statutes. See also Carnal knowledge. 
Carnaliter Ikarneyl:;lt:;lr/. In old criminal law, carnally. 
Carnaliter cog novit, carnally knew. Technical words in 
indictments for rape; formerly held to be essential. 
Carnal knowledge. Coitus; copulation; the act of a 
man having sexual bodily connections with a woman;

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CARNAL KNOWLEDGE 
sexual intercourse. Carnal knowledge of a child is un
lawful sexual intercourse with a female child under the 
age of consent. It is a statutory crime, usually a felony. 
Such offense is popularly known as "statutory rape". 
See Rape. 
While penetration is an essential element, there is 
"carnal knowledge" if there is the slightest penetration 
of the sexual organ of the female by the sexual organ of 
the male. State v. Cross, 200 S.E.2d 27, 29. It is not 
necessary that the vagina be entered or that the hymen 
be ruptured; the entering of the vulva or labia is suffi
cient. De Armond v. State, Okl.Cr., 285 P.2d 236. 
Carnet. An international customs document allowing 
duty-free temporary exportation of merchandise from 
one participating country into another participating 
country, return to the country of origin being contem
plated. U.S. v. Dunn, C.A.Cal., 564 F.2d 348. 
Carriage. Transportation of goods, freight or passen
gers. 
Carriage of Goods by Sea Act. Federal act governing 
the most important of the rights, responsibilities, liabili
ties and immunities arising out of the relation of issuer 
to holder of the ocean bill of lading, with respect to loss 
or damage of goods. 46 U.S.C.A. § 1300 et seq. 
Carrier. Individual or organization engaged in trans
porting passengers or goods for hire. 
"Carrier" means any person engaged in the transpor
tation of passengers or property by land, as a common, 
contract, or private carrier, or freight forwarder as those 
terms are used in the Interstate Commerce Act, as 
amended, and officers, agents and employees of such 
carriers. 18 U.S.C.A. § 831. 
See also Certified carriers; Connecting carrier; Contract 
carrier. 
Co mmon carrier. Common carriers are those that hold 
themselves out or undertake to carry persons or goods of 
all persons indifferently, or of all who choose to employ 
it. Merchants Parcel Delivery v. Pennsylvania Public 
Utility Commission, 150 Pa.Super. 120, 28 A.2d 340, 344. 
Those whose occupation or business is transportation of 
persons or things for hire or reward. Common carriers 
of passengers are those that undertake to carry all 
persons indifferently who may apply for passage, so long 
as there is room, and there is no legal excuse for refusal. 
Private carrier. Private carriers are those who trans
port only in particular instances and only for those they 
choose to contract with. 
Carrier's lien. The right to hold the consignee's cargo 
until payment is made for the work of transporting it. 
Carroll doctrine. Rule of law to effect that existing 
licensee has standing to contest the grant of a competi
tive license because economic injury to an existing sta
tion becomes important when on the facts it spells 
diminution or destruction of service. Carroll Broadcast
ing Co. v. F. C. C., 103 U.S.App.D.C. 346, 258 F.2d 440. 
Carry. To bear, bear about, sustain, transport, remove, 
or convey. To have or bear upon or about one's person, 
21 4 
as a watch or weapon; locomotion not being essential. 
As applied to insurance, means "possess" or "hold." 
Carry a member. To pay the assessments against a sick 
or indigent member, as of a beneficial association, the 
payment being made by the other members or the local 
lodge or camp on his behalf. 
Carry an election. For a candidate to be elected, or a 
measure carried, at an election, he or it must receive a 
majority or a plurality of the legal votes cast. 
Carry arms or weapons. To wear, bear, or carry them 
upon the person or in the clothing or in a pocket, for the 
purpose of use, or for the purpose of being armed and 
ready for offensive or defensive action in case of a 
conflict with another person.' 
Carry-back. A provision in the tax law which allows a 
taxpayer to apply a net operating loss in one year to the 
three immediately preceding tax years, beginning with 
the earliest year. A net operating loss must be carried 
back unless the taxpayer elects to forego the carry-back 
and carry the loss forward. I.R.C. § 172(b). Compare to 
Carry-over. 
Carry costs. A verdict is said to carry costs when the 
party for whom the verdict is given becomes entitled to 
the payment of his costs as incident to such verdict. 
Carrying away. The act of removal or asportation, by 
which the crime of larceny is completed, and which is 
essential to constitute it. See also Larceny. 
Carrying charge. Charge made by creditor, in addition 
to interest, for carrying installment credit. Under con
sumer credit protection statutes, full disclosure of all 
such service charges is required. See Truth-in-Lending 
Act. See also Carrying costs. 
Carrying concealed weapon. Such act is a criminal 
offense in most all jurisdictions; though concealment is 
not universally an element of the crime. See e.g. Model 
Penal Code § 5.06. 
Carrying costs. All costs associated with holding items 
in inventory for a period of time. See also Carrying 
charge. 
Carry on trade or business. To conduct, prosecute or 
continue a particular avocation or business as a continu
ous operation or permanent occupation. The repetition 
of acts may be sufficient. To hold one's self out to 
others as engaged in the selling of goods or services. 
Helvering v. Highland, C.C.A.4, 124 F.2d 556, 561. 
Term which has multiple meanings depending on the 
context, but it is commonly used in connection with the 
degree of activity of a foreign corporation in a given 
state and the consequent right of that state to regulate 
such enterprise and the exposure of such foreign corpo
ration to suit within that state. In this connection, so 
called "long arm" statutes define what constitutes carry
ing on business. 
Carry-over. A provision in the tax law which allows a 
taxpayer to apply a net operating loss in one year to the 
years following the loss. Net operating losses incurred 
after 1975 are carried forward 15 years; and losses

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215 
incurred prior to 1976 are carried forward five years. 
I.R.C. § 172(b). Compare to Carry-back. 
Carry passengers for a consideration. Transportation 
of persons under such conditions that operator owes 
them duty of carrier for hire. 
Carry stock. To provide funds or credit for its payment 
for the period agreed upon from the date of purchase. 
Carry the iron. See Fire ordeal under the title Ordeal. 
Carta Ikart;}/. In old English law, a charter, or deed. 
Any written instrument. 
In Spanish law, a letter; a deed; a power of attorney. 
Carta mercatoria Ikart;} m;}rk;}toriy;}I . A grant (1303) 
to certain foreign merchants, in return for custom 
duties, of freedom to deal wholesale in all cities and 
towns of England, power to export their merchandise, 
and liberty to dwell where they pleased, together with 
other rights pertaining to speedy justice. 
Cart bote Ikart bowt/. In old English law, wood or 
timber which a tenant is allowed by law to take from an 
estate, for the purpose of repairing instruments (includ
ing necessary vehicles), of husbandry. 2 Bl.Comm. 35. 
See Bote, bot. 
Carte. In French marine law, a chart. 
Carte blanche Ikart blonsh/. A white sheet of paper; 
an instrument signed, but otherwise left blank. A sheet 
given to an agent, with the principal's signature append
ed, to be filled up with any contract or engagement as 
the agent may see fit. Term is commonly used to mean 
unlimited authority; full discretionary power. 
Cartel Ikartell. A combination of producers of any 
product joined together to control its production, sale, 
and price, so as to obtain a monopoly and restrict 
competition in any particular industry or commodity. 
Such exist primarily in Europe, being restricted in Unit
ed States by antitrust laws. Also, an association by 
agreement of companies or sections of companies having 
common interests, designed to prevent extreme or unfair 
competition and allocate markets, and to promote the 
interchange of knowledge resulting from scientific and 
technical research, exchange of patent rights, and stand
ardization of products. 
An agreement between two hostile powers for the 
delivery of prisoners or deserters, or authorizing certain 
non-hostile intercourse between each other which would 
otherwise be prevented by the state of war; for example, 
agreements for intercommunication by post, telegraph, 
telephone, railway. 
Car trust certificates, or securities. A class of invest
ment securities based upon the conditional sale or hire 
of railroad cars or locomotives with a reservation of title 
or lien in the vendor or bailor until the property is paid 
for. See also Equipment trust. 
Cartulary Ikarty;}l;}ry I. A place where papers or 
records are kept. 
CASE 
Carucage Ikrer;}k;}j/. In old English law, a kind of tax or 
tribute anciently imposed upon every plow (carue or 
plow-land) for the public service. 
Carucata, carucate Ikrer;}keyt;}I krer;}keytl . In old Eng
lish law, a certain quantity of land used as the basis for 
taxation. A cartload. As much land as may be tilled by 
a single plow in a year and a day. A plow land of one 
hundred acres. 
Carucatarius Ikrer;}bteriy;}s/. One who held lands in 
carvage, or plow-tenure. 
Carue Ikreruw I. A carve of land; plow-land. 
Carvage. The same as carucage (q.v.). 
Carve. In old English law, a carucate or plow-land. 
Ca. Sa. An abbreviation of capias ad satisfaciendum. 
Casata Ik;}seyt;}/. In old English law, a house with land 
sufficient for the support of one family. Otherwise 
called "hida, " a hide of land, and "{am ilia. " 
Casatus Ikrezeyt;}s/. A vassal or feudal tenant possess
ing a casata; that is, having a house, household, and 
property of his own. 
Case. A general term for an action, cause, suit, or 
controversy, at law or in equity; a question contested 
before a court of justice; an aggregate of facts which 
furnishes occasion for the exercise of the jurisdiction of 
a court of justice. A judicial proceeding for the determi
nation of a controversy between parties wherein rights 
are enforced or protected, or wrongs are prevented or 
redressed; any proceeding judicial in its nature. 
Criminal act requiring investigation by police: Dis
ease or injury requiring treatment by physician. 
Surveillance or inspection of residence, business, etc. 
by potential burglar or robber. 
The word "case" may include applications for divorce, 
applications for the establishment of highways, applica
tions for orders of support of relatives, and other special 
proceedings unknown to the common law. S. D. Warren 
Co. v. Fritz, 138 Me. 279, 25 A.2d 645, 648. 
In ordinary usage, the word "case" means "event", 
"happening", "situation", "circumstances". 
A statement of facts involved in a transaction or 
series of transactions, or occurrence, or other matter in 
dispute, drawn up in writing in a technical form, for 
submission to a court or judge for decision or opinion. 
See below Case agreed on; Case on appeal; Case reserved; 
Case stated. 
See also Cause of action. 
Case agreed on. A formal written enumeration of the 
facts in a case, assented to by both parties as correct and 
complete, and submitted to the court by their agree
ment, in order that decision may be rendered without a 
trial, upon the court's conclusions of law upon the facts 
as stated. For agreed case, or case stated, parties must 
agree on all material ultimate facts on which their 
rights are to be determined by law. See also Stipulation. 
Case made. See Case reserved, below.

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CASE 
Case of actual controver sy. The phrase in Federal De
claratory Judgment Act connotes controversy of justicia
ble nature, excluding advisory decree on hypothetical 
facts. John P. Agnew & Co., Inc. v. Hoage, 69 App.D.C. 
116, 99 F.2d 349, 351. See Cases and controversie s, 
below. 
Case of first impression. See First impression case. 
Case on appeal. Status of case after it leaves trial court 
for appellate review and is on appellate docket. 
Case reserved. A statement in writing of the facts 
proved on the trial of a cause, drawn up and settled by 
the attorneys and counsel for the respective parties 
under the supervision of the judge, for the purpose of 
having certain points of law, which arose at the trial 
and could not then be satisfactorily decided, determined 
upon full argument before the court in banco This is 
otherwise called a "special case"; and it is usual for the 
parties, where the law of the case is doubtful, to agree 
that the jury shall find a general verdict for the plain
tiff, subject to the opinion of the court upon such a case 
to be made, instead of obtaining from the jury a special 
verdict. 
Cases and controversies. This term, as used in the 
Constitution of the United States, embraces claims or 
contentions of litigants brought before the court for 
adjudication by regular proceedings established for the 
protection or enforcement of rights, or the prevention, 
redress, or punishment of wrongs; and whenever the 
claim or contention of a party takes such a form that 
the judicial power is capable of acting upon it, it has 
become a case or controversy. Interstate Commerce 
Com'n V. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 
1047. The federal courts will only consider questions 
which arise in a "case or controversy"; i.e., only justicia
ble cases. Art. III, Sec. 2, U.S.C onst. The case or 
controversy must be definite and concrete, touching the 
legal relations of parties having adverse interests. The 
questions involved must not be moot or academic, nor 
will the courts consider collusive actions. Aetna Life 
Ins. CO. V. Haworth, 300 U.S. 229, 240, 241, 57 S.Ct. 461, 
464, 81 L.Ed. 617. The facts in controversy, under all 
the circumstances, must show a substantial issue be
tween the parties having adverse legal interests of suffi
cient immediacy and reality to warrant issuance of a 
judgment. Adams V. Morton, C.A.Mont., 581 F.2d 1314, 
1319. See also Controversy; Justiciable controversy; 
Ripeness doctrine; Standing to sue doctrine. 
Case stated. See Case agreed on, above. 
Case sufficient to go to a jury. A case that has proceed
ed upon sufficient proof to that stage where it must be 
submitted to jury and not decided against the state as a 
matter of law. State V. McDonough, 129 Conn. 483, 29 
A.2d 582, 584. 
Fo rm of action. That category into which a case falls 
such as contract or tort, though under Rules of Civil 
Procedure, all actions are "civil" actions. Fed.R. Civil 
P. 2. 
21 6 
Casebook. Type of book used in law school containing 
text of leading court decisions in particular field of law 
(e.g., contracts, torts), together with commentary and 
other features useful for class discussion and further 
understanding of subject as prepared by author. Co m
pare Hornbook. 
Case in chief. That part of a trial in which the party 
with the initial burden of proof presents his evidence 
after which he rests. 
Case law. The aggregate of reported cases as forming a 
body of jurisprudence, or the law of a particular subject 
as evidenced or formed by the adjudged cases, in distinc
tion to statutes and other sources of law. It includes the 
aggregate of reported cases that interpret statutes, regu
lations, and constitutional provisions. See Common law. 
Case or controversy. See Case; Standing to sue doc
trine. 
Case system. A method of teaching or studying the 
science of the law by a study of the cases historically, or 
by the inductive method. It was introduced in the Law 
School of Harvard University in 1869-70 by Christopher 
C. Langdell, Dane Professor of Law. See Casebook. 
Caseworker. Generally, a social worker whose clients 
are called cases and whose work is mainly in the field. 
Cas fortuit Ikit fortwiy/. Fr. In the law of insurance, a 
fortuitous event; an inevitable accident. 
Cash. Money or the equivalent; usually ready money. 
Currency and coins, negotiable checks, and balances in 
bank accounts. That which circulates as money. See 
Legal tender; Petty cash. 
Cash account. A record, in bookkeeping, of all cash 
transactions; a summary of moneys received and ex
pended. 
Cash bail. Sum of money posted by a criminal defen
dant to insure his presence in court; used in place of 
surety bond and real estate. See Bail. 
Cash basis accounting. A method of accounting that 
reflects deductions as paid and income as received in 
any one tax year. That system of accounting which 
treats as income only cash which is actually received 
and as expense only cash which is actually paid out, in 
contrast to accrual basis which records income when due 
though not received and expense when incurred though 
not yet paid. 
Cash book. In bookkeeping, an account book in which is 
kept a record of all cash transactions, or all cash re
ceived and expended. 
Cash budget. A period-by-period statement of opening 
cash on hand, estimated cash receipts, estimated cash 
disbursements, and estimated cash balance at the end of 
each period. A projection of the company's cash re
ceipts and disbursements over some future period of 
time. 
Cash cycle. The time lapse between purchase of materi
als and collection of accounts receivable for finished 
product sold.

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217 
Cash discount. A deduction from billed price which 
seller allows for payment within a certain time; e.g. 
10% discount for payment within 10 days. A discount 
offered for early payment of an invoice. 
Cash dividend. That portion of profits and surplus paid 
to stockholders by a corporation in form of cash. To be 
contrasted with "stock" dividend. 
Cash equivalent doctrine. Generally, a cash basis tax
payer does not report income until cash is constructively 
or actually received. Under the cash equivalent doc
trine, cash basis taxpayers are required to report income 
even though no cash is actually received in a transaction 
if the equivalent of cash is received e.g., property is 
received instead of cash in a taxable transaction. 
Cash flow. The cash generated from property, business, 
etc. It is different from net income; cash flow looks to 
the amount of cash left after all payments are made, 
whether they are tax deductible or not. Cash receipts 
minus disbursements from a given asset, or group of 
assets, for a given period. An analysis of the movement 
of cash through a venture as contrasted with the earn
ings of the venture. 
Negative cash flow. Refers to a situation where the 
cash needs of a business exceed its cash intake. 
Cashier, v. To dismiss dishonorably from service. 
Cashier, n. Executive officer of bank or trust company 
responsible for banking transactions. One who collects 
and records payments at store, restaurant, business, or 
the like. 
Cashiered. Dismissal with ignominy or dishonor, or in 
disgrace. 
Cashier's check. A check drawn by the bank upon 
itself and issued by an authorized officer of a bank, 
directed to another person evidencing fact that payee is 
authorized to demand and receive from the bank, upon 
presentation, the amount of money represented by the 
check. National Newark and Essex Bank v. Giordano, 
111 N.J.Super. 347, 268 A.2d 327, 328. See also Check. 
Cashlite. An amercement or fine; a mulct. 
Cash market value. Price which property would bring 
if offered for sale by one who desired to sell but was 
under no obligation to sell, and was bought by one who 
desired to buy but was under no necessity to buy. Ur
ban Renewal Agency of City of Lubbock v. Trammel, 
Tex., 407 S.W.2d 773, 777. "Fair market value," "rea
sonable market value" or "fair cash market value" are 
synonymous. Housing Authority of Birmingham Dist. 
v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 
So.2d 835, 837. For Fair market value, and Fair cash 
market value, see those titles. 
Cash note. In England, a bank-note of a provincial bank 
or of the Bank of England. 
Cash out. Exists when seller of property takes the 
entire amount of equity in cash rather than retaining 
some interest in property. 
CASSETUR BILLA 
Cash position. Degree of liquidity; amount of quick or 
liquid assets. 
Cash price. A price payable in cash at the time of sale 
of property, in opposition to a barter or a sale on credit. 
Cash sale. A sale for money in hand. A sale condi
tioned on payment concurrent with delivery. Weyer
h�ser Timber Co. v. First Nat. Bank, 150 Or. 172, 43 
P.2d 1078, 1081. See Sale; Time-price differential. 
Cash surrender value. The amount of money that an 
insurance policy would yield if cashed in with the insur
ance company that issued the policy. The cash surren
der value of a life insurance policy is the reserve less a 
surrender charge. Amount which the insurer will pay 
upon cancellation of the policy before death. See Cash 
value option. 
Cash value. The cash value of an article or piece of 
property is the price which it would bring at private sale 
(as distinguished from a forced or auction sale); the 
terms of sale requiring the payment of the whole price 
in ready money, with no deferred payments. 
Actual value or market value. Fort Worth & D. N. 
Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d 570, 572. Clear 
market value or fair market value. Price property will 
bring on sale by one desiring, but not compelled, to sell 
to one desiring but not compelled, to purchase. Insur
ance Co. of North America, v. McCraw, 255 Ky. 839, 75 
S.W.2d 518, 520. Saleable value. In re Lang Body Co., 
C. C. A. Ohio, 92 F.2d 338, 340. Value at which property 
would be taken in payment of just debt from solvent 
debtor. Bank of Fairfield v. Spokane County, 173 Wash. 
145, 22 P.2d 646, 652. 
See also Actual cash value; Cash surrender value; Fair 
cash value; Fair market value; Market value. 
Cash value option. The right of an owner of life insur
ance policy to take the cash value of a policy which is a 
predetermined amount at a given point in time; gener
ally limited to a specified period after default in premi
um payments. 
Cassare. To quash; to render void; to break. 
Cassation. In French law, annulling; reversal; break
ing the force and validity of a judgment. A decision 
emanating from the sovereign authority, by which a 
decree or judgment in the court of last resort is broken 
or annulled. 
Cassation, court of. (Fr. cour de cassation.) The high
est court in France; so termed from possessing the 
power to quash (casser) the decrees of inferior courts. It 
is a court of appeal in criminal as well as civil cases. 
Cassetur billa /k;)siyt;)r bil;)/. (Lat. That the bill be 
quashed.) The form of the judgment for the defendant 
on a plea in abatement, where the action was com
menced by bill (billa). 3 BLComm. 303. The form of an 
entry made by a plaintiff on the record, after a plea in 
abatement, where he found that the plea could not be 
confessed and avoided, nor traversed nor demurred to; 
amounting in fact to a discontinuance of the action.

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CASSETUR BREVE 
Cassetur breve Ibsiyt�r briyviy I. (Lat. That the writ 
be quashed.) The form of the judgment for the defen
dant on a plea in abatement, where the action was 
commenced by original writ (breve). 3 Bl.Comm. 303. 
A judgment sometimes entered against a plaintiff at 
his request when, in consequence of allegations of the 
defendant, he can no longer prosecute his suit with 
effect. 
Cast. To deposit formerly or officially, as to cast a ballot. 
The form in which a thing is constructed. To get rid of; 
to discard. 
Cast away. Rejected; thrown away. Cast ashore or 
adrift, as a shipwrecked person. 
Castel, or castle. A fortress in a town; the principal 
mansion of a nobleman. 
Castellain Ikrest�l�n/. In old English law, the lord, 
owner, or captain of a castle; the constable of a fortified 
house; a person having the custody of one of the crown 
mansions; an officer of the forest. 
Castellanus Ikrest�leyn�s/. A castellain; the keeper or 
constable of a castle. 
Castellarium, castellatus Ikrest�leriy�m/krest�leyt�s/. 
In old English law, the precinct or jurisdiction of a 
castle. 
Castellorum operatio Ikrest�16r�m op�reysh(iy)ow/. In 
Saxon and old English law, castle work. Service and 
labor done by inferior tenants for the building and 
upholding of castles and public places of defense. One 
of the three necessary charges (trinoda necessitas) to 
which all lands among the Saxons were expressly sub
ject. Towards this some gave them personal service, 
and others, a contribution of money or goods. 1 Bl. 
Comm. 263. 
Castigatory. An engine used to punish women who had 
been convicted of being common scolds. It was some
times called the trebucket, tumbrel, ducking-stool, or 
cucking-stool. 
Casting vote. Deciding vote cast by presiding officer to 
break tie. Act of voting by ballot or voting machine. 
Castle doctrine. A man's home is his castle and, hence, 
he may use all manner of force including deadly force to 
protect it and its inhabitants from attack. Doctrine is 
usually attributed to Coke, Third Institute, 1644, but 
similar phrases are found in Roman law. See Self-de
fense. 
Castleguard. In feudal law, an imposition anciently laid 
upon such persons as lived within a certain distance of 
any castle, towards the maintenance of such as watched 
and warded the castle. 
Castleguard rents. In old English law, rents paid by 
those that dwelt within the precincts of a castle, towards 
the maintenance of such as watched and warded it. 
Castrensis IkrestrEms�s/. In the Roman law, relating to 
the camp or military service. 
Castrense peculium, a portion of property which a son 
acquired in war, or from his connection with the camp. 
21 8 
Casual Ikrez(h)yuw�l/. Occurring without regularity, oc
casional; impermanent, as employment for irregular 
periods. 
Happening or coming to pass without design and 
without being foreseen or expected; unforeseen; un
certain; unpremeditated. 
Casual bettor. An occasional and irregular bettor who 
is not guilty of crime of engaging in betting and gam
bling organized and carried on as a systematic business. 
Bamman v. Erickson, 288 N.Y. 133, 41 N.E.2d 920, 922. 
Casual deficiency of revenue. An unforeseen or unex
pected deficiency, or an insufficiency of funds to meet 
some unforeseen and necessary expense. 
Casual deficit. A deficit happening by chance or acci
dent and without design. State Budget Commission v. 
Lebus, 244 Ky. 700, 51 S.W.2d 965. 
Casual ejector. The nominal defendant in an action of 
ejectment. 
Casual employment. Employment at uncertain or ir
regular times. Employment for short time and limited 
and temporary purpose. Occasional, irregular or inci
dental employment. Such employee does not normally 
receive seniority rights nor, if hours worked are below a 
certain number each week, fringe benefits. By statute 
in many states, such employment· may or may not be 
subject to workers' compensation at the election of the 
employer. The test is the nature of the work or the 
scope of the contract of employment or the continuity of 
employment. 
Casual sale. A sale which is not made customarily or in 
the regular course of business; an occasional sale. 
Casualty Ikrez(h)yuw�ltiy I. A serious or fatal accident. 
A person or thing injured, lost or destroyed. A disas
trous occurrence due to sudden, unexpected or unusual 
cause. Accident; misfortune or mishap; that which 
comes by chance or without design. A loss from such an 
event or cause; as by fire, shipwreck, lightning, etc. See 
also Accident; Loss; Unavoidable casualty. 
Casualty insurance. See Insurance. 
Casualty loss. A casualty loss is defined for tax pur
poses as Itthe complete or partial destruction of property 
reSUlting from an identifiable event of a sudden, unex
pected or unusual nature"; e.g., floods, storms, fires, 
auto accidents. Individuals may deduct business casual
ty losses in full. Losses include those in a trade or 
business or incurred in a transaction entered into for a 
profit. Personal or nonbusiness casualty losses are de
ductible by individuals as itemized deductions. Such 
loss deductions are reduced by $100 and 10% of the 
taxpayer's adjusted gross income. 
Casu consimili Ikeys(y)uw k�nsim�lay/. In old English 
law, a writ of entry, granted where tenant by the curte
sy, or tenant for life, alienated in fee, or in tail, or for 
another's life, which was brought by him in reversion 
against the party to whom such tenant so alienated to 
his prejudice, and in the tenant's lifetime. See Consimili 
casu.

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219 
Casu proviso Ikeys(y)uw pr;;)vliyzow/. Lat. In the case 
provided for. A writ of entry framed under the provi
sions of the statute of Gloucester (6 Edw. I) c. 7, which 
lay for the benefit of the reversioner when a tenant in 
dower aliened in fee or for life. 
Casus I keys;;)s I . Lat. Chance; accident; an event; a 
case; a case contemplated. 
Casus belli Ikeys;;)s belay I. An occurrence giving rise to 
or justifying war. 
Casus frederis Ikeys;;)s fiyd;;)r;;)s, °fed;;)r;;)s/. In interna
tional law, the case of the treaty. The particular event 
or situation contemplated by the treaty, or stipulated 
for, or which comes within its terms. In commercial 
law, the case or event contemplated by the parties to an 
individual contract or stipulated for by it, or coming 
within its terms. 
Casus fortuitus Ikeys;;)s fortyuw;;)t;;)s/. An inevitable 
accident, a chance occurrence, or fortuitous event. A 
loss happening in spite of all human effort and sagacity. 
Casus fortuitus non est sperandus, et nemo tenetur 
devinare Ikeys;;)s fortyuw;;)t;;)S non est sp;;)rrend;;)s, et 
niymow t;;)niyt;;)r dev;;)neriy I. A fortuitous event is not 
to be expected, and no one is bound to foresee it. 
Casus fortuitus non est supponendus Ikeys;;)s for
tyliW;;)t;;)S non est s;}p;;)nend;;)s/. A fortuitous event is not 
to be presumed. 
Casus major Ikeys;;)s meyj;;)r/. In the civil law, a casual
ty; an extraordinary casualty, as fire, shipwreck, etc. 
Casus omissus Ikeys;;)s ;;)mis;;)s/. A case omitted; an 
event or contingency for which no provision is made; 
particularly a case not provided for by the statute on the 
general subject, and which is therefore left to be gov
erned by the common law. 
Casus omissus et oblivioni datus dispositioni juris 
communis relinquitur Ikeys;;)s ;;)mis;;)s et ;;)bliviyownay 
deyt;;)s disp;;)zishiyownay Jur;;)s k;;)myuwn;;)s r;;)lil)
kw;;)t;;)r I. A case omitted and given to oblivion (forgot
ten) is left to the disposal of the common law. A 
particular case, left unprovided for by statute, must be 
disposed of according to the law as it existed prior to 
such statute. 
Casus omissus pro omisso habendus est Ikeys;;)s 
;;)mis;;)s prow ;;)misow h;;)bend;;)s est!. A case omitted is to 
be held as (intentionally) omitted. 
Catalla Ik;;)trel;;)/. In old English law, chattels. The 
word among the Normans primarily signified only 
beasts of husbandry, or, as they are still called, "cattle," 
but, in a secondary sense, the term was applied to all 
movables in general, and not only to these, but to 
whatever was not a fief or feud. 
Catalla juste possessa amitti non possunt Ik;;)trel;;) 
j�stiy p;;)zes;;) eymitay non pos;;)nt/. Chattels justly pos
sessed cannot be lost. 
Catalla otiosa Ik;;)trel;;) owshiyows;;)I . Dead goods or chat
tels as distinguished from animals. Idle cattle, that is, 
CATHOLIC EMANCIPATION ACT 
such as were not used for working, as distinguished from 
beasts of the plow; called also animalia otiosa. 
Catalla reputantur inter minima in lege Ik;;)treb rep
yuwtrent;;)r int;;)r min;;)m;;) in liyjiy I. Chattels are con
sidered in law among the least (or minor) things. 
Catallis captis nomine districtionis Ik;;)trebs krept;;)s 
nom;;)niy d;;)strikshiyown;;)s/. An obsolete writ that lay 
where a house was within a borough, for rent issuing 
out of the same, and which warranted the taking of 
doors, windows, etc., by way of distress. 
Catallis reddendis Ikretrebs r;;)dend;;)s/. For the return 
of the chattels; an obsolete writ that lay where goods 
delivered to a man to keep till a certain day were not 
upon demand redelivered at the day. 
Catallum I k;;)trel;;)m I . A chattel. Most frequently used 
in the plural form, catalla (q.v.). 
Catals I kret;;)lz I . Goods and chattels. See Catalla. 
Cataneus I bteyniy;;)s I . A tenant in capite. A tenant 
holding immediately of the crown. 
Catascopus Ik;;)tresbp;;)s/. An old name for an archdea
con. 
Catastrophe Ik;;)trestr;;)fiy I. A notable disaster; a more 
serious calamity than might ordinarily be understood 
from the term "casualty." Utter or complete failure. 
Catching bargain. See Bargain. 
Catchings. Things caught (e.g. fish), and in the posses
sion, custody, power, and dominion of the party, with a 
present capacity to use them for his own purposes. 
Catchpoll. A name formerly givento a sheriffs deputy, 
or to a constable, or other officer whose duty it is to 
arrest persons. He was a sort of serjeant. The word is 
no longer in use as an official designation. 
Catch time charter. One under which compensation is 
paid for the time the boat is actually used. Schoonmak
er-Conners Co. v. New York Cent. R. Co., D.C.N.Y., 12 
F.2d 314, 315. See also Bareboat charter. 
Cater cousin. (From Fr. Quatrecousin.) A cousin in the 
fourth degree; hence any distant or remote relative. 
Cathedral. In English ecclesiastical law, a tract set 
apart for the service of the church. The church of the 
bishop of the diocese, in which is his cathedra, or throne, 
and his special jurisdiction; in that respect the principal 
church of the diocese. 
Cathedral preferments. In English ecclesiastical law, 
all deaneries, archdeaconries, and canonries, and gener
ally all dignities and offices in any cathedral or collegi
ate church, below the rank of a bishop. 
Cathedratic Ikre{/;;)drret;;)k/. In English ecclesiastical 
law, a sum of 2s. paid to the bishop by the inferior 
clergy; but from its being usually paid at the bishop's 
synod, or visitation, it is commonly named synodals. 
Catholic Emancipation Act. The statute of 10 Geo. IV, 
c. 7, by which Roman Catholics were restored, in gener
al, to the full enjoyment of all civil rights, except that of

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CATHOLIC EMANCIPATION ACT 
holding ecclesiastical offices, and certain high appoint
ments in the state. 
Catoniana regula Ikretowniyeyn� regy�I�/. In Roman 
law, the rule which is commonly expressed in the max
im, Quod ab initio non valet tractu temporis non con vale
bit, meaning that what is at the beginning void by 
reason of some technical (or other) legal defect will not 
become valid merely by length of time. The rule ap
plied to the institution of ha:redes, the bequest of lega
cies, and such like. The rule is not without its applica
tion also in English law; e.g., a married woman's will 
(being void when made) is not made valid merely be
cause she lives to become a widow. 
Cats and dogs. Colloquial expression for highly specula
tive securities. 
Cattle gate. In old English law, a customary proportion
ate right of pasture enjoyed in common with others. A 
right to pasture cattle in the land of another. It was a 
distinct and several interest in the land, passing by lease 
and release. 
Cattle rustling. Stealing of cattle. 
CATV. Community Antenna Television Systems. 
Caucasian Ikokeyzh�n/. Of or pertaining to the white 
race. 
Caucus Ik6k�s/. A meeting of the legal voters of any 
political party assembled for the purpose of choosing 
delegates or for the nomination of candidates for office. 
Cauda terrre Ik6d� teriy/. A land's end, or the bottom 
of a ridge in arable land. 
Caursines Ik(�)rs�nz/. Italian merchants who came into 
England in the reign of Henry III, where they estab
lished themselves as money lenders, but were soon ex
pelled for their usury and extortion. 
Causa Ik6z�/k6wz�/. Lat. A cause, reason, occasion, 
motive, or inducement. As used with the' force of a 
preposition, it means by virtue of, on account of, in 
contemplation of; e.g. causa mortis, in anticipation of 
death. A condition; a consideration; motive for per
forming a juristic act. 
In the Civil and old English law the word signified a 
source, ground, or mode of acquiring property; hence a 
title; one's title to property. Thus, "titulus est justa 
causa possidendi id quod nostrum est;" title is the 
lawful ground of possessing that which is ours. Also a 
cause; a suit or action pending; e.g. Causa testamenta
ria, a testamentary cause. Causa matrimonialis, a mat
rimonial cause. 
See also Cause; Cause of action. 
Causa causre est causa causati Ik6z� k6ziy est k6z� 
kozeytay I. The cause of a cause is the cause of the 
thing caused. The cause of the cause is to be considered 
as the cause of the effect also. 
Causa causans Ik6z� k6zrenz/. The immediate cause; 
the last link in the chain of causation. 
220 
Causa causantis, causa est causati Ik6z� kozrent�s, 
k6z� est kozeytay I. The cause of the thing causing is 
the cause of the effect. 
Causa data et non secuta Ik6z� deyt� et non s�kyuwt�/. 
In the civil law, consideration given and not followed, 
that is, by the event upon which it was given. The 
name of an action by which a thing given in the view of 
a certain event was reclaimed if that event did not take 
place. 
Causa ecclesire publicis requiparatur; et summa est 
ratio qure pro religione facit Ik6z� �kliyziyiy p;)bbs�s 
ekw�p�reyt�r; et s;)m� est reysh(iy)ow kwiy pr6w 
r�lijiy6wniy feys�tI. The cause of the church is equal to 
public cause; and paramount is the reason which makes 
for religion. 
Causre dotis, vitre, libertatis, fisci sunt inter favorabi
lia in lege Ik6ziy d6wt�s, vaytiy, lib�rteyt�s, fiskay s;}nt 
int�r feyv�r�biliy� in liyjiy/. Causes of dower, life, liber
ty, revenue, are among the things favored in law. 
Causa et origo est materia negotii Ik6z� ed 6r�gow est 
m�tiriy� n�g6wshiyay I. The cause and origin is the 
substance of the thing, the cause and origin of a thing 
are a material part of it. The law regards the original 
act. 
Causa hospitandi Ik6z� hosp�trenday I. For the purpose 
of being entertained as a guest. 
Causa jactitationis maritagii Ik6z� jrekteyshiy6wn�s 
mrer�teyjiyay I. A form of action which anciently lay 
against a party who boasted or gave out that he or she 
was married to the plaintiff, whereby a common reputa
tion of their marriage might ensue. 3 Bl.Comm. 93. 
See Jactitation (Jactitation of marriage). 
Causa list Ik6z� list I . See Cause list. 
Causal relation. See Proximate cause. 
Causa matrimonii prrelocuti Ik6z� mretr�m6wniyay 
priyl�kyUwtay/. A writ lying where a woman has given 
lands to a man in fee-simple with the intention that he 
shall marry her, and he refuses so to do within a 
reasonable time, upon suitable request. Now obsolete. 
3 Bl.Comm. 183. 
Causam nobis significes quare Ik6z�m n6wb�s 
signif�siyz kweriy/. A writ addressed to a mayor of a 
town, etc., who was by the king's writ commanded to 
give seisin of lands to the king's grantee, on his delaying 
to do it, requiring him to show cause why he so delayed 
the performance of his duty. 
Causa mortis Ik6z� m6rt�s/. In contemplation of ap
proaching death. 
Causa mortis donatio Ik6z� m6rt�s d�neysh(iy)ow/. See 
Causa mortis gift; Donatio mortis causa. 
Causa mortis gift. A gift made by a donor in contem
plation of his or her imminent death. If the donor does 
not die of that ailment, the gift is revoked. 
Causa patet Ik6z� pret�trpeyt�tI. The reason is open, 
obvious, plain, clear, or manifest. A common expression 
in old writers.

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221 
Causa proxima Ikoz� proks�m�/. The immediate, near
est, or latest cause. The efficient cause; the one that 
necessarily sets the other causes in operation. Insur
ance Co. v. Boon, 95 U.S. 117, 130, 24 L.Ed. 395. See 
Proximate cause. 
Causa proxima non remota spectatur Ikoz� proks�m� 
non r�mowt� spekteyt�r/. An efficient adequate cause 
being found, it must be considered the true cause unless 
some other independent cause is shown to have inter
vened between it and the result. The immediate (or 
direct), not the remote, cause, is looked at, or considered. 
For a distinction, however, between immediate and 
proximate cause, see Cause; Proximate cause. 
Causare Ikozeriy/. In the civil and old English law, to 
be engaged in a suit; to litigate; to conduct a cause. 
Causa rei Ikoz� riyay/. In the civil law, things accesso
ry or appurtenant. The accessions, appurtenances, or 
fruits of a thing; comprehending all that the claimant of 
a principal thing can demand from a defendant in 
addition thereto, and especially what he would have 
had, if the thing had not been withheld from him. 
Causa remota Ikoz� r�mowt�/. A remote or mediate 
cause; a cause operating indirectly by the intervention 
of other causes. 
Causa sine qua non Ikoz� sayniy kwey non/. A neces
sary or inevitable cause; a cause without which the 
effect in question could not have happened. Hayes v. 
Railroad Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410. A 
cause without which the thing cannot be. With refer
ence to negligence, it is the cause without which the 
injury would not have occurred. See Proximate cause. 
Causation. The fact of being the cause of something 
produced or of happening. The act by which an effect is 
produced. An important doctrine in fields of negligence 
and criminal law. 
Causator Ikozeyt�r/. A litigant; one who takes the part 
of the plaintiff or defendant in an action. 
In old European law, one who manages or litigates 
another's cause. 
Causa turpis Ikoz� t;)rp�s/. A base (immoral or illegal) 
cause or consideration. 
Causa vaga et incerta non est causa rationabilis 
Ikoz� veyg� et ins;)rt� non est koz� rresh(iy)�neyb�l�s/. 
A vague and uncertain cause is not a reasonable cause. 
Cause, v. To be the cause or occasion of; to effect as an 
agent; to bring about; to bring into existence; to make 
to induce; to compel. 
Cause, n. (Lat. causa.) Each separate antecedent of an 
event. Something that precedes and brings about an 
effect or a result. A reason for an action or condition. 
A ground of a legal action. An agent that brings some
thing about. That which in some manner is accountable 
for condition that brings about an effect or that pro
duces a cause for the resultant action or state. State v. 
Fabritz, 276 Md. 416, 348 A.2d 275, 280. 
CAUSE OF INJURY 
A suit, litigation, or action. Any question, civil or 
criminal, litigated or contested before a court of justice. 
See Cause of action. 
See also Causa; Causation; Concurrent causes; Con
tributing cause; Dependent intervening cause; Efficient 
cause; Efficient intervening cause; Good cause; Immedi
ate cause; Independent intervening cause; Intervening 
act; Intervening agency; Intervening cause; Legal cause; 
Natural and probable consequences; Negligence (Contrib
utory negligence); Probable cause; Procuring cause; Pro
ducing cause; Proximate cause; Remote cause; Sole 
cause; Sufficient cause. 
Direct or immediate cause. See Proximate cause. 
Dismissal fo r cause. See For cause. 
Intervening cause. That occurrence which comes be
tween the initial force or occurrence and the ultimate 
effect. See also Intervening act. 
Superseding cause. That occurrence or force which not 
only intervenes, but which also breaks the chain of 
causation between the initial occurrence and the ulti
mate effect so as to render the initial force or occurrence 
causatively harmless. 
Cause in fact. That particular cause which produces an 
event and without which the event woulq. not have 
occurred. Medallion Stores, Inc. v. Eidt, Tex.Civ.App., 
405 S.W.2d 417, 422. Courts express this in the form of 
a rule commonly referred to as the "but for" rule: the 
injury to an individual would not have happened but for 
the conduct of the wrongdoer. See Proximate cause; Res 
(Res ipsa loquitur). 
Cause list. In English practice, a printed roll of actions, 
to be tried in the order of their entry, with the names of 
the solicitors for each litigant, made out for each day 
during the sittings of the courts. Similar to the calen
dar of cases, or docket, used in American courts. 
Cause of action. The fact or facts which give a person a 
right to judicial redress or relief against another. The 
legal effect of an occurrence in terms of redress to a 
party to the occurrence. A situation or state of facts 
which would entitle party to sustain action and give him 
right to seek a judicial remedy in his behalf. Thompson 
v. Zurich Ins. Co., D.C.Minn., 309 F.Supp. 1178, 118I. 
Fact, or a state of facts, to which law sought to be 
enforced against a person or thing applies. Facts which 
give rise to one or more relations of right-duty between 
two or more persons. Failure to perform legal obli
gation to do, or refrain from performance of, some act. 
Matter for which action may be maintained. Unlawful 
violation or invasion of right. The right which a party 
has to institute a judicial proceeding. See also Case; 
Claim; Failure to state cause of action; Justiciable contro
versy; Right of action; Severance of actions; Splitting 
cause of action; Suit. 
Cause of injury. That which actually produces it.

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CAUSES CELEBRES 
Causes celebres Ik6wz s�leb(r�)/. Celebrated cases. A 
work containing reports of the decisions of interest and 
importance in French courts in the seventeenth and 
eighteenth centuries. Secondarily, a single trial or deci
sion is sometimes called a "cause celebre," when it is 
remarkable on account of the parties involved or the 
unusual, interesting, or sensational character of the 
facts. 
Cause suit to be brought. Commence or begin. See 
Cause; Concurrent causes; Efficient cause; Probable 
cause; Proximate cause. 
Causeway. A raised roadbed through low lands or 
across wet ground or water. 
Causidicus Ikosid�k�s/. In the civil law, a speaker or 
pleader; one who argued a cause ore tenus. See Advo
cate. 
Cautela Ik6t�I�/. Lat. Care; caution; vigilance; previ
sion. 
Cautio Ik6sh(iy)ow/. In the civil and French law, securi
ty given for the performance of any thing; bail; a bond 
or undertaking by way of surety. Also the person who 
becomes a surety. 
Cautio fidejussoria Ik6sh(iy)ow faydiyj�s6riy�/. Securi
ty by means of bonds or pledges entered into by third 
parties. 
Cautio muciana Ik6sh(iy)ow myuwshiyeyn�/. Security 
given by an heir or legatee, to obtain immediate posses
sion of inheritance or legacy, for observance of a condi
tion annexed to the bequest, where the act which is the 
object of the condition is one which he must avoid 
committing during his whole life, e.g., that he will never 
marry, never leave the country, never engage in a 
particular trade, etc. 
Caution. To warn, exhort, to take heed, or give notice of 
danger. 
Cautionary instruction. That part of a judge's charge 
to a jury in which he instructs them to consider certain 
evidence only for a specific purpose, e.g. evidence that a 
criminal defendant committed crimes other than the 
crime for which he is on trial may be admitted to prove 
a scheme or to show intent as to this crime but not to 
prove that he committed this particular crime and such 
evidence requires cautionary instructions. Com. v. 
Campbell, Mass., 353 N.E.2d 740. Also, instruction by 
judge to jury to not be influenced by extraneous matters 
on outside forces, or to talk about case to anyone outside 
of trial. Other examples of cautionary instructions are: 
an instruction to the jurors at the outset of a case 
against talking with any witness, Lamons v. State, 176 
Ga.App. 290, 335 S.E.2d 652; an instruction on the 
inherent weakness of eyewitness identification, State v. 
Jonas, Utah, 725 P.2d 1378, an instruction for the jury 
not to consider a witness's actions as bearing on the 
guilt or innocence of any of the defendants. Lindsey v. 
United States, 484 U.S. 934, 108 S.Ct. 310, 98 L.Ed.2d 
268. 
222 
Cautione admittenda Ikoshiy6wniy redm�tend�/. In 
English ecclesiastical law, a writ that lies against a 
bishop who holds an excommunicated person in prison 
for contempt, notwithstanding he offers sufficient cau
tion or security to obey the orders and commandment of 
the church for the future. 
Cautio pignoratitia Ik6sh(iy)ow pign�r�tish(iy)�/. Se
curity given by pledge, or deposit, as plate, money, or 
other goods. 
Cautio pro expensis Ik6sh(iy)ow prow �kspens�s/. Se
curity for costs, charges, or expenses. 
Cautious. Careful; prudent; circumspect; discreet in 
face of danger or risk. 
Cautio usufructuaria Ik6sh(iy)ow yuwz(h)yuwfr;)k
tyuweriy�/. Security, which tenants for life give, to 
preserve the property rented free from waste and injury. 
C.A.V. An abbreviation for curia advisari vult, the court 
will be advised, will consider, will deliberate. 
Caveat Ikreviy�tlkeyviy�t/. Lat. Let him beware. 
Warning to one to be careful. A formal notice or 
warning given by a party interested to a court, judge, or 
ministerial officer against the performance of certain 
acts within his power and jurisdiction. This process 
may be used in the proper courts to prevent (temporari
ly or provisionally) the proving of a will or the grant of 
administration, or to arrest the enrollment of a decree 
in chancery when the party intends to take an appeal, to 
prevent the grant of letters patent, etc. 
Used in writing to warn the reader of an interpreta
tion different from the one proposed or advanced. 
See also Warning. 
Caveat actor Ikreviy�t rekt�r/. Let the doer, or actor, 
beware. 
Caveat emptor Ikreviy�t em(p)t�r/keyviy�tO/. Let the 
buyer beware. This maxim summarizes the rule that a 
purchaser must examine, judge, and test for himself. 
This maxim is more applicable to judicial sales, auc
tions, and the like, than to sales of consumer goods 
where strict liability, warranty, and other consumer 
protection laws protect the consumer-buyer. See also 
Warning. 
Caveat emptor, qui ignorare non debuit quod jus ali
enum emit Ikreviy�t em(p)t�r, kway ign�reriy non 
debyuw�t kwod j;}S reliyiyn�m em�tI. Let a purchaser 
beware, who ought not to be ignorant that he is purchas
ing the rights of another. Let a buyer beware; for he 
ought not to be ignorant of what they are when he buys 
the rights of another. 
Caveator Ikreviyeyt�r/. One who files a caveat. 
Caveat to will. A demand that will be produced and 
probated in open court. An attack on validity of alleged 
will. 
Caveat venditor Ikreviy�t vend�t�r I. Let the seller be
ware. 
Caveat viator Ikreviy�t viyeyt�r I. Let the wayfarer 
beware. This phrase has been used as a concise expres-

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223 
sion of the duty of a traveler on the highway to use due 
care to detect and avoid defects in the way. 
Cavendum est a fragmentis IkrevEmd;)m est ey 
frregment;)sl. Beware of fragments. 
Cavere Ik;)viriy/. Lat. In the civil and common law, to 
take care; to exercise caution; to take care or provide 
for; to provide by law; to provide against; to forbid by 
law; to give security; to give caution or security on 
arrest. 
Cayagium I keyeyj iy;)m I . In old English law, cayage or 
kayage; a toll or duty anciently paid the king for 
landing goods at a quay or wharf. 
C.B. In English reports and legal documents, an abbrevi
ation for the ancient court of Common Bench. Also an 
abbreviation for Chief Baron of the Court of Exchequer. 
C.B.O.E. Chicago Board of Options Exchange. 
C.C. Various terms or phrases may be denoted by this 
abbreviation; such as circuit court (or city or county 
court); criminal cases (or crown or civil or chancery 
cases); civil code; chief commissioner; and cepi corpus, I 
have taken his body. 
C.C.; B.B. I have taken his body; bail bond entered. 
See Capias (Capias ad respondendum). 
C.C.C. Commodity Credit Corporation. 
C.C. & C. I have taken his body and he is held. 
C Corporation. A regular corporation governed by Sub
chapter C of the Internal Revenue Code. Distinguished 
from S corporations, which fall under Subchapter S of 
the Code. See Corporation. 
C.D. Certificate of deposit. 
Ceap Ichiyp/. In English law, a bargain; anything for 
sale; a chattel; also cattle, as being the usual medium 
of barter. Sometimes used instead of ceapgild (q.v.). 
Ceapgild I chiypgild/. Payment or forfeiture of an ani
mal. An ancient species of forfeiture. 
Cease. To stop; to become extinct; to pass away; to 
suspend or forfeit. To leave off; bring to an end; to 
come to an end; break off or taper off to a stop; to give 
over or bring to an end an activity or action. Liller v. 
Logsdon, 261 Md. 367, 275 A.2d 469, 470. 
Cease and desist order. An order of an administrative 
agency or court prohibiting a person or business firm 
from continuing a particular course of conduct, e.g. Fed. 
Trade Commission may order a business to cease and 
desist from misbranding or misadvertising its products. 
F. T. C. v. Mandel Bros., Inc., 359 U.S. 385, 79 S.Ct. 818, 
3 L.Ed.2d 893. Ruling issued in an unfair labor practice 
case requiring the charged party (respondent) to stop the 
conduct found illegal and take specified affirmative ac
tion designed to remedy the unfair labor practice. See 
Injunction; Restraining order. 
Cede. To yield up; to assign; to grant; to surrender; to 
withdraw. Generally used to designate the transfer of 
territory from one government to another. 
CENSO CONSIGNATIVO 
Cedo Isiydow/. I grant. The word ordinarily used in 
Mexican conveyances to pass title to lands. 
Cedula IO.En./sedy;)I;)/sej;)I;)/Sp./seyduwla/. In old 
English law, a schedule. In Spanish law, an act under 
private signature, by which a debtor admits the amount 
of the debt, and binds himself to discharge the same on a 
specified day or on demand. Also the notice or citation 
affixed to the door of a fugitive criminal requiring him 
to appear before the court where the accusation is 
pending. 
Cedule Is;)dyuwl/. In French law, the technical name of 
an act under private signature. 
Celation Is;)leysh;)n/. Concealment of pregnancy or de
livery. 
Celebration of marriage Isebbreysh;)n �v mrer;)j/. The 
formal act by which a man and woman take each other 
for husband and wife, according to law; the solemniza
tion of a marriage. The term is usually applied to a 
marriage ceremony attended with ecclesiastical func
tions; i.e. a church wedding. 
Celibacy. The condition or state of life of an unmarried 
person, particularly of one who vows never to marry. 
Celler-Kefauver Act. A federal law enacted in 1950 
dealing with restrictions on mergers and expanding the 
Clayton Act of 1914 in this regard. 
Cemetery. A graveyard; burial ground. Place or area 
set apart for interment of the dead. Term includes not 
only lots for depositing the bodies of the dead, but also 
avenues, walks, and grounds for shrubbery and orna
mental purposes. 
Cenegild Ikeyn;)gild/. In Saxon law, an expiatory mulct 
or fine paid to the relations of a murdered person by the 
murderer or his relations. 
Cenninga. A notice given by a buyer to a seller that the 
things which had been sold were claimed by another, in 
order that he might appear and justify the sale. But the 
exact significance of this term is somewhat doubtful. 
Censaria Is;)n(t)seriy�/. In old English law, a farm, or 
house and land let at a standing rent. 
Censarii Is�n(t)seriyay/. In old English law, farmers, or 
such persons as were liable to pay a census (tax). 
Censere Isen(t)serey/. In the Roman law, to ordain; to 
decree. 
Censo Isensow/. In Spanish and Mexican law, an annui
ty, a ground rent. The right which a person acquires to 
receive a certain annual pension, for the delivery which 
he makes to another of a determined sum of money or of 
an immovable thing. 
Censo al quitar Isensow al kiytar/. A redeemable an
nuity; otherwise called "censo redimible." 
Censo consignativo I sensow k;)nsign;)tiyvow I. A censo 
(q.v.) is called "consigna tivo" when he who receives the 
money assigns for the payment of the pension (annuity) 
the estate the fee in which he reserves.

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CENSO ENFITEUTICO 
Censo enfiteutico / sen sow emfiytewtikow / . In Spanish 
and Mexican law, an emphyteutic annuity. That spe
cies of censo (annuity) which exists where there is a 
right to require of another a certain canon or pension 
annually, on account of having transferred to that per
son forever certain real estate, but reserving the fee in 
the land. The owner who thus transfers the land is 
called the "censualisto, " and the person who pays the 
annuity is called the "censatario. " 
Censor /sens�r/. One who examines publications, films 
and the like for objectionable content. Roman officers 
who acted as census takers, assessors and reviewers of 
public morals and conduct. Officer of armed forces who 
reads letters and other communications of servicemen 
and deletes material considered to be harmful or of a 
danger to security. See also Censorship; Prior restraint. 
Censo reservatio / sensow reyservatiyow / . In Spanish 
and Mexican law, the right to receive from another an 
annual pension by virtue of having transferred land to 
him by full and perfect title. 
Censorship. Review of publications, movies, plays, and 
the like for the purpose of prohibiting the publication, 
distribution, or production of material deemed objection
able as obscene, indecent, or immoral. Such actions are 
frequently challenged as constituting a denial of free
dom of press and speech. Near v. Minnesota, 283 U.S. 
697, 716, 51 S.Ct. 625, 75 L.Ed. 1357; Roth v. United 
States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; 
Miller v. California, 413 U.S. 15, 22, 93 S.Ct. 2607, 37 
L.Ed.2d 419. See also Obscenity; Prior restraint. 
Censuales /sensyuweyliyz/. In old European law, a 
species of oblati or voluntary slaves of churches or 
monasteries; those who, to procure the protection of the 
church, bound themselves to pay an annual tax or 
quit-rent only of their estates to a church or monastery. 
Censuere /sensyuwiriy/. In Roman law, they have de
creed. The term of art, or technical term for the judg
ment, resolution, or decree of the senate. 
Censumethidus / sens�meO�d�s/ or censumorthidus 
/sens�m6rO�d�s/. A dead rent, like that which is called 
"mortmain. " 
Censure /sensh�r/. The formal resolution of a legisla
tive, administrative, or other body reprimanding a per
son, normally one of its own members, for specified 
conduct. An official reprimand or condemnation. See 
also Censor; Reprimand. 
Census /sens�s/. The official counting or enumeration 
of people of a state, nation, district, or other political 
subdivision. Such contains classified information relat
ing to sex, age, family, social and economic conditions, 
and public record thereof. 'City of Compton v. Adams, 
33 Cal.2d 596, 203 P.2d 745, 746. The national census 
has been compiled decennially since 1790, and has in
creasingly listed a great variety of social and economic 
data. A primary use of such data is to apportion or 
reapportion legislative districts. See also Census bu
reau; Federal census. 
/ 
224 
In Roman law, a numbering or enrollment of the 
people, with a valuation of their fortunes. 
In old European law, a tax, or tribute; a toll. 
Census bureau. The Bureau of the Census was estab
lished as a permanent office by act of Congress on 
March 6, 1902 (32 Stat. 51). The major functions of the 
Bureau are authorized by the Constitution (Art. I, Sec. 2, 
Cl. 3), which provides that a census of population shall 
be taken every 10 years, and by laws codified as tjtle 13, 
U.S. Code. The law also provides that the information 
collected by the Bureau from individual persons, house
holds, or establishments be kept strictly confidential and 
be used only for statistical purposes. 
Census regalis /sens�s r�geyl�s/. In English law, the 
annual revenue or income of the crown. 
Cent. A coin of the United States, the least in value of 
those now minted. It is the hundredth part of a dollar. 
Cental. A weight of 100 pounds avoirdupois, used at 
Liverpool for corn. Usually called hu ndredweight in the 
United States. 
Centena /s�ntiyn�/. A hundred. A district or division 
containing originally a hundred freemen, established 
among the Goths, Germans, Franks, and Lombards, for 
military and civil purposes, and answering to the Saxon 
"hundred." Also, in old records and pleadings, a hun
dred weight. 
Centenarii /sent�neriyay/. Petty judges, under-sheriffs 
of counties, that had rule of a hundred (centena), and 
judged smaller matters among them. 
Centeni /s�ntiynay/. The principal inhabitants of a 
centena, or district composed of different villages, origi
nally in number a hundred, but afterwards only called 
by that name. 
Center. This term is often used, not in its strict sense of 
a geographical or mathematical center, but as meaning 
the middle or central point or portion of anything. The 
center of a section of land is the intersection of a 
straight line from the north quarter corner to the south 
quarter corner with a straight line from the east quarter 
corner to the west quarter corner. Similarly, the center 
of a street intersection refers to the point where the 
center lines of the two streets cross. The center of the 
main channel of a river, is the middle of broad and 
distinctly defined bed of main river. 
Center of gravity doctrine. Choice of law questions in 
conflicts of law are resolved by application of the law of 
the jurisdiction which has the most significant relation
ship to or contact with event End parties to the litigation 
and the issues therein. Term is used synonymously 
with most significant relationship or grouping of con
tacts theory. Mitchell v. Craft, Miss., 211 So.2d 509; 
Baffin Land Corp. v. Monticello Motor Inn, 70 Wash.2d 
893, 425 P.2d 623, 625. 
Centesima /s�ntez;)m;)/. In Roman law, the hundredth 
part. 
Usuri2 centesirrue. Twelve per cent. per annum; that is, 
a hundredth part of the principal was due each month,

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225 
-the month being the unit of time from which the 
Romans reckoned interest. 2 Bl.Comm. 462. 
Centime Isontiym/. The name of a denomination of 
French money, being the one-hundredth part of a franc. 
Central criminal court. Also known as "Old Bailey". 
The name given to the English Crown Court by the 
Courts Act of 1971 that has sat in central London since 
1834. 
Central Intelligence Agency. An agency of the Feder
al government charged with responsibility of coordinat
ing all information relating to security of the country. 
All such intelligence information, recommendations, etc. 
are reported to the National Security Council, to whom 
the CIA is responsible to and under the direction of. 
Centralization. Concentration of power and authority 
in a central organization or government. For example, 
power and authority over national and international 
matters is centralized in the federal government. 
Centumviri Isent�mv;miy/. In Roman law, the name of 
an important court consisting of a body of one hundred 
and five judges. 3 Bl.Comm. 515. 
Century. One hundred. A body of one hundred men. 
The Romans were divided into centuries as the English 
were divided into hundreds. Also a cycle of one hun
dred years. 
CEO. Abbreviation for "chief executive officer" of a 
corporation. 
Ceorl /chey;}rl/. In Anglo Saxon law, a class of freemen 
personally free, but possessing no landed property. A 
tenant at will of free condition, who held land of the 
thane on condition of paying rent or services. A free
man of inferior rank occupied in husbandry. Under the 
Norman rule, this term, as did others which denoted 
workmen, especially those which applied to the con
quered race, became a term of reproach, as is indicated 
by the popular signification of churl. 
Cepi I siypay I. Lat. I have taken. This word was of 
frequent use in the returns of sheriffs when they were 
made in Latin, and particularly in the return to a writ 
of capias. 
The full return (in Latin) to a writ of capias was 
commonly made in one of the following forms: Cepi 
corpus, I have taken the body, i.e., arrested the body of 
the defendant; Cepi corpus et bail, I have taken the body 
and released the defendant on a bail-bond; Cepi corpus 
et committitur, I have taken the body and he has been 
committed (to prison); Cepi corpus et est in custodia, I 
have taken the defendant and he is in custody; Cepi 
corpus et est languidus, I have taken the defendant and 
he is sick, i.e., so sick that he cannot safely be removed 
from the place where the arrest was made; Cepi corpus 
et paratum habeo, I have taken the body and have it 
(him) ready, i.e., in custody and ready to be produced 
when ordered. 
Cepit I siyp;}tl . He took. This was the characteristic 
word employed in (Latin) writs of trespass for goods 
taken, and in declarations in trespass and replevin. In 
Black's Law Dictionary 6th Ed.-6 
CERTIFICATE 
criminal practice, formerly a technical word necessary 
in an indictment for larceny. 
Cepit et abduxit I siyp;}t ;}t ;}bd�ks;}t/. He took and led 
away. The emphatic words in writs in trespass or 
indictments for larceny, where the thing taken was a 
living chattel, i.e., an animal. 
Cepit et asportavit I siyp;}t ;}t resp;}rteyv;}t/. He took 
and carried away. Applicable in a declaration in tres
pass or an indictment for larceny where the defendant 
has carried away goods without right. 4 Bl.Comm. 231. 
Cepit in alio loco Isiyp;}t ;}n eyliyow 16wkow/. In old 
pleading, a plea in replevin, by which the defendant 
alleges that he took the thing replevied in another place 
than that mentioned in the declaration. 
Cera impressa Isir;} ;}mpres;}/. Lat. An impressed seal. 
It may include an impression made on wafers or other 
adhesive substances capable of receiving an impression, 
or even paper. 
CERCLA. Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980. See Superfund. 
Certa debet esse intentio, et narratio, et certum fun· 
damentum, et certa res qure deducitur in judicium 
Is�rd;} deb;}t esiy intensh(iy)ow et n;}reysh(iy)ow, et 
s�rt;}m f�nd;}ment;}m, et s�rd;} riyz kwiy d;}d(y)uws;}t;}r in 
juwdishiy;}m/. The design and narration ought to be 
certain, and the foundation certain, and the matter 
certain, which is brought into court to be tried. 
Certain. Ascertained; precise; identified; settled; ex
act; definitive; clearly known; unambiguous; or, in 
law, capable of being identified or made known, without 
liability to mistake or ambiguity, from data already 
given. Free from doubt. 
Certain services. In feudal and old English law, such 
services as were stinted (limited or defined) in quantity, 
and could not be exceeded on any pretense; as to pay a 
stated annual rent, or to plow such a field for three 
days. 2 Bl.Comm. 61. 
Certainty. Absence of doubt; accuracy; precision; defi
nite. The quality of being specific, accurate, and dis
tinct. See Certain. 
Cert. den. Certiorari denied. See Certiorari. 
Certificando de recognitione stapulre I s�rt;}f;}krendow 
diy rek;}gnishiy6wniy steypy;}liy/. In English law, a 
writ commanding the mayor of the staple to certify to 
the lord chancellor a statute-staple taken before him 
where the party himself detains it, and refuses to bring 
in the same. There is a like writ to certify a statute
merchant, and in diverse other cases. 
Certificate I s;}rtif;}k;}t/ . A written assurance, or official 
representation, that some act has or has not been done, 
or some event occurred, or some legal formality has 
been complied with. A written assurance made or issu
ing from some court, and designed as a notice of things 
done therein, or as a warrant or authority, to some 
other court, judge, or officer. A statement of some fact 
in a writing signed by the party certifying. A declara-

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CERTIFICATE 
tion in writing. A "certificate" by a public officer is a 
statement written and signed, but not necessarily sworn 
to, which is by law made evidence of the truth of the 
facts stated for all or for certain purposes. A document 
certifying that one has fulfilled the requirements of and 
may practice in a field. See also Affidavit; Birth certifi
cate; License; Permit. 
Certificate for costs. In English practice, a certificate 
or memorandum drawn up and signed by the judge 
before whom a case was tried, setting out certain facts 
the existence of which must be thus proved before the 
party is entitled, under the statutes, to recover costs. 
Certificate into chancery. In English practice, a doc
ument containing the opinion of the common-law judges 
on a question of law submitted to them for their decision 
by the chancery court. 
Certificate lands. In Pennsylvania, in the period suc
ceeding the revolution, lands set apart in the western 
portion of the state, which might be bought with the 
certificates which the soldiers of that state in the revolu
tionary army had received in lieu of pay. 
Certificate of acknowledgment. The certificate of a 
notary public, justice of the peace, or other authorized 
officer, attached to a deed, mortgage, or other instru
ment, setting forth that the parties thereto personally 
appeared before him on such a date and acknowledged 
the instrument to be their free and voluntary act and 
deed. A verification of the act of the maker of an 
instrument. Thane v. Dallas Joint Stock Land Bank of 
Dallas, Tex.Civ.App., 129 S.W.2d 795, 799. 
Certificate of amendment. Document filed with state 
corporation authority (e.g. Secretary of State) disclosing 
amendment to articles of corporate organization or char
ter or agreement of association. 
Certificate of assize. A writ granted for the re-exami
nation or retrial of a matter passed by assize before 
justices. It is now entirely obsolete. 3 Bl.Comm. 389. 
Certificate of authority. Document issued by state 
corporation authority (e.g. Secretary of State) on applica
tion of foreign corporation granting such corporation 
right to do business in state. 
Certificate of competency. Required of business by 
Small Business Administration to perform a specific 
government procurement contract. 
Certificate of convenience and necessity. Certificate 
of administrative agency· (e.g. Public Service Commis
sion; I.C.C.) granting operating authority for utilities 
and transportation companies. 
Certificate of deposit. A written acknowledgment by a 
bank or banker of a deposit with promise to pay to 
depositor, to his order, or to some other person or to his 
order. U.C.C. § 3-104(2)(c). Bank document evidencing 
existence of a time deposit, normally paying interest. 
Certificate of discharge. See Satisfaction piece. 
226 
Certificate of election. Issued by governor, board of 
elections, or other competent authority that the person 
or persons named have been duly elected. 
Certificate of good conduct. An official written doc
ument which determines that a person is a law-abiding 
citizen of good repute and character to operate licensed 
premises, e.g. retail liquor store. City of Chattanooga v. 
Tenn. Alcoholic Bev. Comm., Tenn., 525 S.W.2d 470, 480. 
Certificate of holder of attached property. A certifi
cate required by statute, in some states, to be given by a 
third person who is found in possession of property 
subject to an attachment in the sheriffs hands, setting 
forth the amount and character of such property and 
the nature of the defendant's interest in it. 
Certificate of incorporation. In most states is the 
document prepared by the Secretary of State that evi
dences the acceptance of articles of incorporation and 
the commencement of the corporate existence. In some 
states the certificate of incorporation is the name given 
to the document filed with the Secretary of State, i.e., 
the articles of incorporation. The Revised Model Busi
ness Corporation Act has eliminated certificates of in
corporation, requiring only a fee receipt. See also Arti
cles of incorporation. 
Certificate of indebtedness. An obligation sometimes 
issued by corporations having practically the same force 
and effect as a bond, though not usually secured on any 
specific property. It may, however, create a lien on all 
the property of the corporation issuing it, superior to the 
rights of general creditors. Compare Debenture. In 
banking, same as a certificate of deposit; as a govern
ment security, same as a treasury certificate. 
Certificate of insurance. Document evidencing fact 
that an insurance policy has been written and includes a 
statement of the coverage of the policy in general terms. 
Certificate of interest. An instrument evidencing a 
fractional or percentage interest in oil and gas produc
tion. People v. Sidwell, 27 Ca1.2d 121, 162 P.2d 913, 915. 
Certificate of need. Many states have enacted certifi
cate-of-need laws designed to combat spiraling health 
care costs and the unnecessary duplication and maldis
tribution of health care facilities and services. Under 
these laws, a health care provider seeking to establish or 
modify a health care facility or to provide new or differ
ent institutional health care services must normally 
apply to the appropriate state agency for a certificate of 
need. 
Certificate of occupancy. Document certifying that 
premises comply with provisions of zoning and/or build
ing ordinances. Such document, as issued by local 
government agency, is commonly required before prem
ises can be occupied and title transferred. Document 
that certifies that what has been done actually conforms 
substantially to approved plans and specifications. 
A number of cities require a "certificate of occupancy" 
for apartments, which aims at preventing their deterio
ration in the first place. After each vacancy, the apart-

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227 
ment must be newly inspected to make sure it's up to 
standard. 
Certificate of participation. A certificate issued in
stead of shares of stock to show a proportionate interest 
in an unincorporated business or in the ownership of 
debt of a corporation. 
Certificate of public convenience and necessity. See 
Certificate of convenience and necessity, supra. 
Certificate of purchase. A certificate issued by public 
officer to successful bidder at a judicial sale (such as a 
tax sale), which will entitle him to a deed upon confir
mation of sale by the court, or (as the case may be) if the 
land is not redeemed within the time limited. 
Certificate of redemption. Evidence of redeeming a 
property by the owner after losing it through a judicial 
sale. 
Certificate of registry. In maritime law, a certificate of 
the registration of a vessel according to the registry acts, 
for the purpose of giving her a national character. 
Certificate of sale. The same as Certificate of purchase, 
supra. 
Certificate of stock. A certificate of a corporation or 
joint-stock company that named person is owner of 
designated number of shares of stock. It is merely 
written evidence of ownership of stock, and of the rights 
and liabilities resulting from such ownership. It is a 
document representation of an incorporeal right, and 
stands on the footing similar to that of other muniments 
of title. 
Certificate of title. Document evidencing ownership; 
commonly associated with sale of motor vehicles. See 
also Insurance (Title insurance). 
Certificate, trial by. A mode of trial now little in use; 
it is resorted to in cases where the fact in issue lies out 
of the cognizance of the court, and the judges, in order to 
determine the question, are obliged to rely upon the 
solemn averment or information of persons in such a 
station as affords them the clearest and most competent 
knowledge of the truth. 
Certification I s;}rt;}f;}keysh;}nl . The formal assertion in 
writing of some fact. The act of certifying or state of 
being certified. Formal designation by NLRB that a 
labor organization represents a majority of employees in 
a particular bargaining unit. See Attestation; Certificate. 
Certification mark. The term "certification mark" 
means any word, name, symbol, or device, or any combi
nation thereof-(l) used by a person other than its 
owner, or (2) which its owner has a bona fide intention 
to permit a person other than the owner to use in 
commerce and files an application to register on the 
principal register established by the Trademark Act, to 
certify regional or other origin, material, mode of manu
facture, quality, accuracy, or other characteristics of 
such person's goods or services was performed by mem
bers of a union or other organization. 15 U.S.C.A. 
§ 1127. 
CERTIFIED CHECK 
Certification of assize. In English practice, a writ 
anciently granted for the re-examining or retrial of a 
matter passed by assize before justices, now entirely 
superseded by the remedy afforded by means of a new 
trial. See Certificate of assize. 
Certification of check. See Certified check. 
Certification of labor union. Declaration by labor 
board (e.g. N .L.R.B.) that a union is bargaining agent for 
group of employees. 
Certification of questions of law. See Certification to 
federal court; Certification to state court. 
Certification of record on appeal. Formal acknowl
edgment of questions for appellate review commonly 
signed by trial justice. 
Certification to federal court. Method of taking case 
from U.S. Court of Appeals to Supreme Court in which 
former court may certify any question of law in any civil 
or criminal case as to which instructions are requested. 
28 U .S.C.A. § 1254(2). 
Certification to state court. Procedure by which a 
Federal Court abstains from deciding a state law ques
tion until the highest court of the state has had an 
opportunity to rule on the question so certified by the 
Federal Court. Clay v. Sun Insurance Office Ltd., 363 
U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170. State statutes 
and court rules providing for such certification are gen
erally patterned on the "Uniform Certification of Ques
tions of Law Act." 
Certificats de coutume Isertifika d;} kuwtyliwm/. In 
French law, certificates given by a foreign lawyer, estab
lishing the law of the country to which he belongs upon 
one or more fixed points. These certificates can be 
produced before the French courts, and are received as 
evidence in suits upon questions of foreign law. 
Certified carriers. Carriers using highways of state to 
whom certificates of public convenience and necessity 
have been issued. People v. Henry, 131 Cal.App. 82, 21 
P.2d 672. 
Certified check. The check of a depositor drawn on a 
bank on the face of which the bank has written or 
stamped the words "accepted" or "certified" with the 
date and signature of a bank official. The check then 
becomes an obligation of the bank. The certification of 
a check is a statement of fact, amounting to an estoppel 
of the bank to deny liability; a warranty that sufficient 
funds are on deposit and have been set aside. It means 
that bank holds money to pay check and is liable to pay 
it to proper party. 
Certification of a check is acceptance of check by 
drawee-bank. Where a holder procures certification the 
drawer and all prior indorsers are discharged. Unless 
otherwise agreed a bank has no obligation to certify a 
check. A bank may certify a check before returning it 
for lack of proper indorsement. If it does so the drawer 
is discharged. U.C.C. § 3-411. Compare Cashier's 
check.

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CERTIFIED COpy 
Certified copy. A copy of a document or record, signed 
and certified as a true copy by the officer to whose 
custody the original is intrusted. 
Certified mail. Form of mail similar to registered mail 
by which sender may require return receipt from ad
dressee. 
Certified public accountant (CPA). See Accountant. 
Certified question. See Certification to federal court; 
Certification to state court. 
Certify. To authenticate or vouch for a thing in writing. 
To attest as being true or as represented. See Certificate; 
Certification. 
Certiorari /s�rsh(iy);m�ray/s�rsh�reriy/. Lat. To be in
formed of. A writ of common law origin issued by a 
superior to an inferior court requiring the latter to 
produce a certified record of a particular case tried 
therein. The writ is issued in order that the court 
issuing the writ may inspect the proceedings and deter
mine whether there have been any irregularities. It is 
most commonly used to refer to the Supreme Court of 
the United States, which uses the writ of certiorari as a 
discretionary device to choose the cases it wishes to 
hear. See 28 U.S.C.A. § 1254. The Supreme Court 
denies most writs of certiorari (i.e. "cert. den."). The 
trend in state practice has been to abolish such writ. 
See also Writ of certiorari. 
Certiorari, bill of. In English chancery practice, an 
original bill praying relief. It was filed for the purpose 
of removing a suit pending in some inferior court of 
equity into the court of chancery, on account of some 
alleged incompetency or inconvenience. 
Certiorari facias / s�rsh(iy )�reray feysh(iy )�s/ . Cause to 
be certified. The command of a writ of certiorari. 
Cert money /s�rt m�niy/. In old English law, head 
money or common fine. Money paid yearly by the 
residents of several manors to the lords thereof for the 
certain keeping of the leet (pro certo letre); and some
times to the hundred. 
Certum est quod certum reddi potest / s�rt�m est kwod 
s�rt�m reda.y p6wt�stl. That is certain which can be 
rendered certain. 
Cesionario /ses(i)y�nariyow/. In Spanish law, an assign
ee. 
Cess /ses/, v. In old English law, to cease, stop, deter
mine, fail. 
Cess /ses/, n. An assessment or tax. In Ireland, it was 
anciently applied to an exaction of victuals, at a certain 
rate, for soldiers in garrison. 
Cessante causa, cessat effectus /s�srentiy k6z�, ses�t 
�fekt�s/. The cause ceasing, the effect ceases. 
Cessante ratione legis, cessat et ipsa lex / s�srentiy rre
shiy6wniy liyj�s, ses�t �t ips� leks/. The reason of the 
law ceasing, the law itself also ceases. 
Cessante statu primitivo, cessat derivativus /s�srentiy 
steyt(y)uw prim�tayvow ses�t d�riv;}tayv�s/. When the 
228 
primitive or original estate determines, the derivative 
estate determines also. 
Cessare /s�seriy/. L. Lat. To cease, stop, or stay. 
Cessa regnare, si non vis judicare / ses� r�gneriy say 
non vis juwd�keriy /. Cease to reign, if you wish not to 
adjudicate. 
Cessavit per biennium / s�seyv�t p�r bayeniy�m/. An 
obsolete writ, which could formerly have been sued out 
when the defendant had for two years ceased or neglect
ed to perform such service or to pay such rent as he was 
bound to do by his tenure, and had not upon his lands 
sufficient goods or chattels to be distrained. It also lay 
where a religious house held lands on condition of per
forming certain spiritual services which it failed to do. 
3 Bl.Comm. 232. 
Cesse /ses/. An assessment or tax. A tenant of land 
was said to cesse when he neglected or ceased to perform 
the services due to the lord. 
Cesser /ses�r/. Neglect; a ceasing from, or omission to 
do, a thing. 3 Bl.Comm. 232. The determination of an 
estate. The determination or ending of a term, annuity, 
etc. 
Cesser, proviso for. A provision in a settlement creat
ing long terms that when the trusts are satisfied, the 
term should cease and determine. This proviso general
ly expresses three events: (1) The trusts never arising; 
(2) their becoming unnecessary or incapable of taking 
effect; (3) the performance of them. 
Cesset executio /ses�t eks�kyuwsh(iy)ow/. (Let execu
tion stay.) A stay of execution; or an order for such 
stay; the entry of such stay on record. 
Cesset processus /ses�t pr�ses�s/. (Let process stay.) A 
stay of proceedings entered on the record. Formal order 
for stay of process or proceedings. 
Cessio /ses(h)(i)yow/. Lat. A cession; a giving up, or 
relinquishment; a surrender; an assignment. 
Cessio bonorum /ses(h)(i)yow b�n6r�m/. In Roman law, 
cession of goods. A surrender, relinquishment, or as
signment of all his property and effects made by an 
insolvent debtor for the benefit of his creditors. The 
term is commonly employed in continental jurispru
dence to designate a bankrupt's assignment of property 
to be distributed among his creditors. 
Cessio in jure /seshiyow in juriy/. In Roman law, a 
fictitious suit, in which the person who was to acquire 
the thing claimed (vindicabat) the thing as his own, the 
person who was to transfer it acknowledged the justice 
of the claim, and the magistrate pronounced it to be the 
property (addicebat) of the claimant. 
Cession / sesh�n/ . The act of ceding; a yielding or 
giving up; surrender; relinquishment of property or 
rights. The assignment, transfer, or yielding up of 
territory by one state or government to another. Mu
nicipality of Ponce v. Church, 210 U.S. 296, 28 S.Ct. 737, 
52 L.Ed. 1068.

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229 
In ecclesiastical law, a giving up or vacating a bene
fice, by accepting another without a proper dispensation. 
1 Bl.Comm. 392. 
In the civil law, an assignment. The act by which a 
party transfers property to another. The surrender or 
assignment of property for the benefit of one's creditors. 
See Cessio bonorum. 
Cession des biens Isesyown day by€m/. In French law, 
the voluntary or compulsory surrender which a debtor 
in insolvent circumstances makes of all his goods to his 
creditors. 
Cession of goods I sesh�n �v glidz/. The surrender of 
property; the relinquishment that a debtor makes of all 
his property to his creditors, when he finds himself 
unable to pay his debts. See Bankruptcy proceedings. 
Cessment. An assessment, or tax. 
Cessor Ises�r/. One who ceases or neglects so long to 
perform a duty that he thereby incurs the danger of the 
law. 
Cessure. L. Fr. A receiver; a bailiff. 
C'est ascavoir Iset resk�vwar/. L. Fr. That is to say, or 
to-wit. Generally written as one word, cestascavoir, 
cestascavoire. 
C'est Ie crime qui fait la honte, et non pas l'echafaud 
I sey l� kriym kiy fay la ont, ey nown pa leyshaf6l. Fr. 
It is the offense which causes the shame, and not the 
scaffold. 
Cestui, cestuy Isetiy/se(s)twiy/. He who. Used fre
quently in composition in law French phrases. 
Cestui que trust I setiy k� tr�stl. He who has a right to 
a beneficial interest in and out of an estate the legal 
title to which is vested in another. The person who 
possesses the equitable right to property and receives 
the rents, issues, and profits thereof; the legal estate of 
which is vested in a trustee. The beneficiary of a trust. 
Cestui que use Isetiy k� yuwz/. He for whose use and 
benefit lands or tenements are held by another. The 
cestui que use has the right to receive the profits and 
benefits of the estate, but the legal title and possession 
(as well as the duty of defending the same) reside in the 
other. 
Cestui que vie I setiy k� viy I. The person whose life 
measures the duration of a trust, gift, estate, or insur
ance contract. Person on whose life insurance is writ
ten. The person for whose life any lands, tenements, or 
hereditaments are held. 
Cestuy que doit inheriter al pere doit inheriter al fils 
Ise(s)twiy k� dwo renheriytey owper dwo renheriytey ow 
fiys/. He who would have been heir to the father of the 
deceased shall also be heir of the son. 2 Bl.Comm. 239, 
250. 
Cf. An abbreviated form of the Latin word confer, mean
ing "compare." Directs the reader's attention to anoth
er part of the work, to another volume, case, etc., where 
contrasted, analogous, or explanatory views or state
ments may be found. 
CHAIN OF TITLE 
C. & F. or C.F. Term in sales contract means that the 
price so includes cost and freight to the named destina
tion. U.C.C. § 2--320(1). 
C.F. & I. or C.F.I. See C.I.F. 
CFR. Code of Federal Regulations. 
C.F.T.C. Commodity Futures Trading Commission. 
ChI This abbreviation most commonly stands for "chap
ter," or "chancellor," but it may also mean "chancery," 
or "chief." 
Chacea Icheysh(iy)�/. In old English law, a station of 
game, more extended than a park, and less than a 
forest; also the liberty of chasing or hunting within a 
certain district; also the way through which cattle are 
driven to pasture, otherwise called a "droveway." 
Chacer Icheysey/. L. Fr. To drive, compel, or oblige; 
also to chase or hunt. 
Chafewax I cheyfwreks/. An officer in the English chan
cery whose duty was to prepare wax to seal the writs, 
commissions, and other instruments thence issuing. 
The office was abolished by St. 15 & 16 Vict., c. 87, § 23. 
Chaffers Ich,H�rz/. An ancient term for goods, wares, 
and merchandise; hence the word chaffering, which is 
yet used for buying and selling, or beating down the 
price of an article. 
Chaffery. Traffic; the practice of buying and selling. 
Chain. As regards land measure, such equals 66 feet, 
100 links, or 4 rods. See also Chains and links; Land 
measure. 
Chain-certificate method. Method of authenticating of 
foreign official record. See Fed.R.Civil P. 44(a)(2). 
Chain conspiracy. Exists where different activities are 
carried on with the same subject of the conspiracy in 
chain-like manner such that each conspirator performs 
a separate function which serves in the accomplishment 
of the overall conspiracy. Bolden v. State, 44 Md.App. 
643, 410 A.2d 1085, 1091. 
Chain of custody. In evidence, the one who offers real 
evidence, such as the narcotics in a trial of drug case, 
must account for the custody of the evidence from the 
moment in which it reaches his custody until the mo
ment in which it is offered in evidence, and such evi
dence goes to weight not to admissibility of evidence. 
Com. v. White, 353 Mass. 409, 232 N.E.2d 335. For 
example, "chain of custody" is proven if an officer is 
able to testify that he or she took control of the item of 
physical evidence, identified it, placed it in a locked or 
protected area, and retrieved the item being offered on 
the day of trial. McEntyre v. State, Tex.App.-Hous. (14 
Dist.), 717 S.W.2d 140, 147. 
Chain of possession. See Chain of custody. 
Chain of title. Record of successive conveyances, or 
other forms of alienation, affecting a particular parcel of 
land, arranged consecutively, from the government or 
original source of title down to the present holder. See 
Abstract of title.

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CHAINS AND LINKS 
Chains and links. Used in real estate measurement; 
chain is 66' long or 100 links. See also Chain; Land 
measure. 
Chain stores. Number of stores under common name, 
ownership and management; normally selling same 
general line of merchandise or products. 
Chairman. A name given to the presiding officer of an 
assembly, public meeting, convention, deliberative or 
legislative body, board of directors, committee, etc. 
Chairman of committees of the whole house. In 
English parliamentary practice, in the commons, this 
officer, always a member, is elected by the house on the 
assembling of every new parliament. When the house is 
in committee on bills introduced by the government, or 
in committee of ways and means, or supply, or in com
mittee to consider preliminary resolutions, it is his duty 
to preside. 
Challenge. To object or except to; to prefer objections 
to a person, right, or instrument; to question formerly 
the legality or legal qualifications of; to invite into 
competition; to formally call into question the capabili
ty of a person for a particular function, or the existence 
of a right claimed, or the sufficiency or validity of an 
instrument; to call or put in question; to put into 
dispute; to render doubtful. For example, to challenge 
the personal qualification of a judge or magistrate about 
to preside at the trial of a cause, as on account of 
personal interest, his having been of counsel, bias, etc.; 
or to challenge a juror for cause. See Jury challenge; 
Objection. 
Challenge for cause. A request from a party to a judge 
that a certain prospective juror not be allowed to be a 
member of the jury because of specified causes or rea
sons. See e.g. 28 U.S.C.A. § 1870. 
Challenge to jury array. An exception to the whole 
panel in which the jury are arrayed, upon account of 
partiality, or some default in the sheriff or other officer 
who arrayed the panel or made the return. A challenge 
to the form and manner of making up the panel. A 
challenge that goes to illegality of drawing, selecting, or 
impaneling array. See e.g. Fed.R.Crim.P. 6(b) (grand 
jury). 
General challenge. A species of challenge for cause, 
being an objection to a particular juror, to the effect 
that the juror is disqualified from serving in any case. 
Peremptory challenge. A request from a party that a 
judge not allow a certain prospective juror to be a 
member of the jury. No reason or "cause" need be 
stated for this type of challenge. The number of per
emptory challenges afforded each party is normally set 
by statute or court rule; e.g. Fed.R.Crim.P. 24; Fed.R. 
Civ.P. 47; 28 U.S.C.A. § 1870. 
Challenge to fight. A summons or invitation, given by 
one person to another, to engage in a personal combat; 
a request to fight. 
Chamber. A room or apartment in a house. A private 
repository of money; a treasury. A compartment; a 
hollow or cavity. 
230 
Judges chambers. The private room or office of a judge; 
any place in which a judge hears motions, signs papers, 
or does other business pertaining to his office, when he 
is not holding a session of court. Business so transacted 
is said to be done "in chambers." 
Legislative body. The lower chamber of a bicameral 
legislature is normally the larger of the two (e.g. House 
of Representatives). The upper chamber is generally 
the smaller (e.g. Senate). 
Chamber business. A term applied to all such judicial 
business as may properly be transacted by a judge at his 
chambers or elsewhere, as distinguished from such as 
must be done by the court in session. 
Chamberlain. In old English law, keeper of the cham
ber. Originally the chamberlain was the keeper of the 
treasure chamber (camera) of the prince or state; other
wise called "treasurer." 
The name of several high officers of state in England, 
as the lord great chamberlain of England, lord chamber
lain of the household, chamberlain of the exchequer. 
The word was formerly used in some American cities 
as the title of an officer corresponding to "treasurer." 
Chamberlaria I cheymb�rleriy�/. Chamberlainship; the 
office of a chamberlain. 
Chamber of accounts. A sovereign court, of great an
tiquity, in France, which took cognizance of and reg
istered the accounts of the king's revenue; nearly the 
same as the English court of exchequer. 
Chamber of commerce. A board or association of busi
nessmen and merchants organized to promote the com
mercial interests of a locality, county, or the like, or a 
society of a city who meet to promote the general trade 
and commerce of the locality. Chambers of commerce 
exist in most cities, and are loosely affiliated with the 
national organization of the same name. Particular 
trades may also have their own organizations or boards 
to promote the interests of their own trade. Organiza
tions with functions similar to that of chambers of 
commerce may be known under various other names; 
e.g. Board of Trade. 
Chamber, widow's. In old English law, a portion of the 
effects of a deceased person, reserved for the use of his 
widow, and consisting of her apparel, and the furniture 
of her bed-chamber. This custom in London of reserv
ing her apparel and furniture for the widow of a free
man was abolished by 19 & 20 Vict., c. 94. 
Champart /shompar/. In French law, the grant of a 
piece of land by the owner to another, on condition that 
the latter would deliver to him a portion of the crops. 
Champert Ichremp�rt/. In old English law, a share or 
division of land; champerty. 
Champertor Ichremp�rt�r/. In criminal law, one who 
makes or brings suits, or causes them to be moved or 
brought, either directly or indirectly, and maintains 
them at his own cost, upon condition of having a part of 
the gains or of the land in dispute. One guilty of 
champerty (q. v.).

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231 
Champertous / chremp;}rt;}s/. Of the nature of champer
ty; affected with champerty. 
Champerty /chremp;}rtiy/. A bargain between a strang
er and a party to a lawsuit by which the stranger 
pursues the party's claim in consideration of receiving 
part of any judgment proceeds; it is one type of "mainte
nance," the more general term which refers to maintain
ing, supporting, or promoting another person's litiga
tion. Alexander v. Unification Church of America, C.A. 
N.Y., 634 F.2d 673, 677. "Maintenance" consists of 
maintaining, supporting, or promoting the litigation of 
another. See also Maintenance. 
Champion. A person who fights a combat in his own 
cause, or in place of another. At common law, the 
person who, in the trial by battel, fought either for the 
tenant or demandant. One who acts or speaks in behalf 
of a person, or a cause; defender; an advocate. 
Champion of the king or queen. In English law, an 
ancient officer, whose duty it was at the coronation to 
challenge "that if any man shall deny the king's title to 
the crown, he is there ready to defend it in single 
combat". 
Chance. Absence of explainable or controllable causa
tion; accident; fortuity; hazard; result or issue of un
certain and unknown conditions or forces; risk; unex
pected, unforeseen, or unintended consequence of an act. 
The opposite of intention, design, or contrivance. See 
Act of God. 
Chance bargain. The entering into a contract for better 
or worse, accompanied by the taking of chances as to the 
true facts and situation of the thing or article bargained 
about. Marr v. Lawson, 290 Ky. 342, 161 S.W.2d 42, 44. 
Chancellor. The name given in some states to the judge 
(or the presiding judge) of a court of chancery. A 
university president, or chief executive officer of higher 
education system in certain states. 
Chancellor of the Exchequer. In England, an officer 
who formerly sat in the Court of Exchequer, but now is 
minister who has control over national revenues and 
expenditures. 
Lord High Chancellor. The highest judicial functionary 
in England. Also known as Lord Chancellor. Appoint
ed by the Crown upon the advice of the Prime Minister, 
sits as Speaker of the House of Lords, a member of the 
Cabinet, and presides at appellate judicial proceedings. 
Chance-medley. In criminal law, a sudden affray. This 
word is sometimes applied to any kind of homicide by 
misadventure, but in strictness it is applicable to such 
killing only as happens in defending one's self. 4 Bl. 
Comm. 184. 
Chancer. To adjust according to principles of equity, as 
would be done by a court of chancery. The practice 
arose in parts of New England when the courts, without 
equity jurisdiction, were compelled to act upon equitable 
principles. 
CHANGE OF VENUE 
Chancery. Equity; equitable jurisdiction; a court of 
equity; the system of jurisprudence administered in 
courts of equity. See Court of Chancery; Equity. 
Chance verdict. See Verdict. 
Chandler Act. Federal act of 1938 making major 
amendments to Bankruptcy Act (11 U.S.C.A.). Included 
in amendments was provision for a debtor to arrange 
payments with creditors without total liquidation of 
debtor's assets. See Bankruptcy Code. 
Change, n. An alteration; a modification or addition; 
substitution of one thing for another. Exchange of 
money against money of a different denomination. 
Change, v. Alter; cause to pass from one place to 
another; exchange; make different in some particular; 
put one thing in place of another; vacate. 
Change in accounting method. A change in the tax
payers method of accounting is an overall change in the 
plan of accounting, e.g. a change from the cash to the 
accrual method, or a change in the method of valuing 
inventories. Such change normally requires prior ap
proval from the Internal Revenue Service. Generally, a 
request to the Internal Revenue Service must be filed 
within 180 days after the beginning of the taxable year 
of the desired change. In some instances, the permis
sion for change will not be granted unless the taxpayer 
agrees to certain terms or adjustments which are pre
scribed by the Internal Revenue Service. 
Change of beneficiary. A divesting of beneficial inter
est held by one person and a vesting of that interest in 
another. 
Change of circumstances. In domestic relations law, 
condition used to show need for modification of custody 
or support orders. Betts v. Betts, 18 Or.App. 35, 523 
P.2d 1055. With reference to custody issues, this term 
refers to a change relevant to the capacity of the moving 
party or custodial parent to properly take care of the 
child. It must be a change which was not contemplated 
at the time of the original decree and which has oc
curred since the last custody order and would enhance 
or have an adverse impact on the welfare of the child. 
Matter of Marriage of Padbury, 46 Or.App. 533, 612 P.2d 
321, 322. This term is also used interchangeable with 
"changed circumstances." 
Change of domicile. Change of abode or residence and 
intention to remain. 
Change of grade. U suaHy understood as an elevation 
or depression of the surface of a street, or a change of 
the natural contour of its face so as to facilitate travel 
over it. It is essential that there shall have been a 
previously established grade and that a new grade be 
physically made. 
Change of location. Removal or transfer from old to 
new location. Weber County v. Ritchie, 98 Utah 272, 96 
P.2d 744. See Change of domicile; Change of venue. 
Change of venue. The removal of a suit begun in one 
county or district to another county or district for trial, 
though the term is also sometimes applied to the remov-

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CHANGE OF VENUE 
al of a suit from one court to another court of the same 
county or district. In criminal cases a change of venue 
will be permitted if for example the court feels that the 
defendant cannot receive a fair trial in a given venue 
because of prejudice. Fed.R.Crim.P.21. In civil cases a 
change may be permitted in the interests of justice or for 
the convenience of the parties. 28 U.S.C.A. §§ 1404(a), 
1406(a), 1631. See also Forum non conveniens; Plea of 
privilege; Venue. 
Changer. In England, an officer formerly belonging to 
the king's mint whose business was chiefly to exchange 
coin for bullion brought in by merchants and others. 
Channel. The bed in which the main stream of a river 
flows, rather than the deep water of the stream as 
followed in navigation. The deeper part of a river, 
harbor or strait. It may also be used as a generic term 
applicable to any water course, whether a river, creek, 
slough, or canal. The "channel" of a river is to be 
distinguished from a "branch". 
A means of expression or communication. 
Main channel. That bed of the river over which the 
principal volume of water flows. The main channel of a 
navigable stream, called for as a boundary between 
states, means the "thalweg", or deepest and most navi
gable channel as it then existed. 
Natural channel. The channel of a stream as deter
mined by the natural conformation of the country 
through which it flows. The floor or bed on which the 
water flows, and the banks on each side thereof as 
carved out by natural causes. 
Chantry / chrentriy /. A church or chapel endowed with 
lands for the maintenance of priests to say Mass daily 
for the souls of the donors. 
Chapel. A place of worship; a lesser or inferior church, 
sometimes a part of or subordinate to another church. 
Chapel of ease. In English ecclesiastical law, a chapel 
built in aid of original church for parishioners who had 
fixed their residence at some distance. 
Private chapels. Chapels owned by private persons, and 
used by themselves and their families. 
Proprietary chapels. In English law, those belonging to 
private persons who have purchased or erected them 
with a view to profit or otherwise. 
Public chapels. In English law, chapels founded later 
than the church for parishioners who fixed their resi
dence at a distance; and chapels so circumstanced were 
described as "chapels of ease." 
Chapelry / chrep;}lriy / . The precinct and limits of a 
chapel. The same thing to a chapel as a parish is to a 
church. 
Chapitre /chrep(;})t;}r/. In English law, a summary of 
matters to be inquired of or presented before justices in 
eyre, justices of assise, or of the peace, in their sessions. 
Also articles delivered by the justice in his charge to the 
inquest. 
232 
Chaplain. A clergyman officially attached to a unit of 
the armed services, or to some public institution, for the 
purpose of performing religious services. 
Chapman. An itinerant vendor of small wares. A trad
er who trades from place to place. 
Chapter. In England, a body of dignitaries called canons 
attached to a cathedral church and presided over by a 
dean. This body constitutes the council of the bishop in 
both spiritual and temporal affairs. Also, a local branch 
of a society or fraternity. 
Chapter 7 (liquidation) bankruptcy. See Bankruptcy 
proceedings (Straight bankruptcy ). 
Chapter 11 (reorganization) bankruptcy. See Bank
ruptcy proceedings (Business reorganizations ). 
Chapter 12 (farmer) bankruptcy. See Bankruptcy pro
ceedings (Family farmer bankruptcy ). 
Chapter 13 (wage earner's) bankruptcy. See Bankrupt
cy proceedings (Wage earner's plan ). 
Character. The aggregate of the moral qualities which 
belong to and distinguish an individual person; the 
general result of the one's distinguishing attributes. 
That moral predisposition or habit, or aggregate of ethi
cal qualities, which is believed to attach to a person, on 
the strength of the common opinion and report concern
ing him. A person's fixed disposition or tendency, as 
evidenced to others by his habits of life, through the 
manifestation of which his general reputation for the 
possession of a character, good or otherwise, is obtained. 
The estimate attached to an individual or thing in the 
community. The opinion generally entertained of a 
person derived from the common report of the people 
who are acquainted with him. Although "character" 
and "reputation" are often used synonymously, the 
terms are distinguishable. "Character" is what a man 
is, and "reputation" is what he is supposed to be in what 
people say he is. "Character" depends on attributes 
possessed, and "reputation" on attributes which others 
believe one to possess. The former signifies reality and 
the latter merely what is accepted to be reality at 
present. See Bad character; Good character; Reputation. 
Class or division to which claim belongs. 
Character and habit. The moral traits of a person 
gleaned from his habitual conduct. People v. Coleman, 
19 Mich.App. 250, 172 N.W.2d 512. See Character. 
Character evidence. Evidence of person's moral stand
ing in community based on reputation. 
Admissibility of character evidence in federal trials is 
governed by Fed.Evid. Rules 404 and 405, and with 
respect to witnesses by Rules 607-609. 
Characterization. In conflicts, the classification, quali
fication, and interpretation of laws applicable to a case. 
Restatement, Second, Conflicts, § 7. 
Character witness. See Witness. 
Charge, v. To impose a burden, duty, obligation, or lien; 
to create a claim against property; to assess; to de
mand; to accuse; to instruct a jury on matters of law.

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233 
To impose a tax, duty, or trust. To entrust with respon
sibilities and duties (e.g. care of another). In commer
cial transactions, to bill or invoice; to purchase on 
credit. In criminal law, to indict or formally accuse. 
Charge, n. An incumbrance, lien, or claim; a burden or 
load; an obligation or duty; a liability; an accusation. 
A person or thing committed to the care of another. 
The price of, or rate for, something. See also Charged; 
Charges; Floating charge; Rate; Surcharge. 
Charge to jury. The final address by judge to jury before 
verdict, in which he sums up the case, and instructs jury 
as to the rules of law which apply to its various issues, 
and which they must observe. The term also applies to 
the address of court to grand jury, in which the latter 
are instructed as to their duties. See also Jury instruc
tions. 
General charge. The charge or instruction of the court 
to the jury upon the case, as a whole, or upon its 
general features and characteristics. 
Special charge. A charge or instruction given by the 
court to the jury, upon some particular point or ques
tion involved in the case, and usually in response to 
counsel's request for such instruction. 
Criminal law. In a criminal case, the specific crime the 
defendant is accused of committing. Accusation of a 
crime by a formal complaint, information or indictment. 
Public charge. An indigent. A person whom it is 
necessary to support at public expense by reason of 
poverty alone or illness and poverty. 
Chargeable. This word, in its ordinary acceptation, as 
applicable to the imposition of a duty or burden, signi
fies capable of being charged, subject to be charged, 
liable to be charged, or proper to be charged. 
Charge account. System of purchasing goods and ser
vices on credit, under which customer agrees to settle or 
make payments on his balance within a specified time or 
periodically. See Consumer Credit Protection Act. 
Revolvin g charge account. An arrangement between a 
seller and a buyer pursuant to which: (1) the seller may 
permit the buyer to purchase goods or services on credit 
either from the seller or pursuant to a seller credit card, 
(2) the unpaid balances of amounts financed arising 
from purchases and the credit service and other appro
priate charges are debited to an account, (3) a credit 
service charge if made is not precomputed but is com
puted on the outstanding unpaid balances of the buyer's 
account from time to time, and (4) the buyer has the 
privilege of paying the balances in installments. Uni
form Consumer Credit Code, § 2.108. 
Charge and discharge. Under former equity practice, 
in taking an account before a master, a written state
ment of items for which plainti ff asked credit and a 
counterstatement, exhibiting claims or demands defen
dant held against plaintiff. 
Charge back. The action of a bank in deducting or 
otherwise revoking a credit given to a customer's ac
count, which credit usually has been given for a check 
CHARITABLE BEQUEST 
deposited in the account. See U.C.C. §§ 4-212(1) (col
lecting bank's right of charge back) & 4-212(3) (payor 
bank's right of charge back). 
Charged. Accusation of crime by complaint, indictment, 
or information. With respect to "notice", a person is 
charged with such if he has information sufficient to 
apprise him of the subject, e.g. under land recording 
acts, a person is charged with notice of a lien or attach
ment if it is on record. 
Charge des affaires, or charge d'affaires /sharzhey 
deyz afer(z)l" dafer(z)/. The title of a diplomatic repre
sentative of inferior rank. In re Baiz, 135 U.S. 403, 10 
S.Ct. 854, 34 L.Ed. 222. 
Charge-off. Anything manifesting intent to eliminate 
an item from assets. Write-off of asset or other item, 
e.g. uncollectible account receivable or debt. To treat as 
a loss or expense an amount originally recorded as an 
asset; usually the term is used when the charge is not in 
accord with original expectations. See Bad debt. 
Charges. The expenses which have been incurred, or 
disbursements made, in connection with a contract, suit, 
or business transaction. See also Charge; Costs; Fee; 
Fixed charges. 
Charge-sheet. A record kept at a police station to 
receive the names of the persons brought and given 
custody, the nature of the accusation, and the name of 
the accuser in each case. 
Charging lien. A lien is a charging lien where the debt 
is a charge upon the specific property although it re
mains in the debtor's possession. See Floor plan financ
ing. 
The right of an attorney to have expenses and com
pensation due for services in a suit secured to the 
attorney in a judgment, decree or award for a client. 
The lien attaches to judgment but relates back and 
takes effect from the time of the commencement of 
services rendered in the action. Miles v. Katz, Fla.App., 
405 So.2d 750, 752. 
Charging order. A statutorily created means for a 
creditor of a judgment debtor who is a partner of others 
to reach the debtor's beneficial interest in the partner
ship, without risking dissolution of the partnership. 
Uniform Partnership Act, § 28. 
Charitable. Having the character or purpose of a chari
ty. The word "charitable", in a legal sense includes 
every gift for a general public use, to be applied consist
ent with existing laws, for benefit of an indefinite num
ber of persons, and designed to benefit them from an 
educational, religious, moral, physical or social stand
point. American Soc. for Testing and Materials v. 
Board of Revision of Taxes, Philadelphia County, 423 
Pa. 530, 225 A.2d 557. This term is synonymous with 
"beneficent", "benevolent", and "eleemosynary". See 
also Charity; Eleemo synary. 
Charitable bequest. A bequest is charitable if its aims 
and accomplishments are of religious, educational, polit
ical, or general social interest to mankind and if the

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CHARITABLE BEQUEST 
ultimate recipients constitute either the community as a 
whole or an unascertainable and indefinite portion 
thereof. 
Charitable contributions. Contributions of money, se
curities, etc. to organizations engaged in charitable pur
poses. Such contributions are deductible for tax pur
poses (subject to various restrictions and ceiling limita
tions) if made to qualified nonprofit charitable organiza
tions. A cash basis taxpayer is entitled to a deduction 
solely in the year of payment. Accrual basis corpora
tions may accrue contributions at year-end if payment is 
authorized by the Board of Directors prior to the end of 
the year and payment is made within time specified by 
I.R.C. before the end of the year. See also Charitable 
deduction; Charitable organizations. 
Charitable corporation. Non-profit corporation orga
nized for charitable purposes; i.e. for purpose, among 
other things, of promoting welfare of mankind at large, 
or of a community, or of some class forming part of it 
indefinite as to numbers and individuals and is one 
created for or devoted to charitable purposes. Lynch v. 
Spilman, 67 CaI.2d 251, 62 CaI.Rptr. 12, 18, 431 P.2d 
636. Such corporations must meet certain criteria to 
receive tax "exempt" status. I.R.C. § 501(c)(3). See 
Charitable organizations, infra. 
Charitable deduction. In taxes, a contribution to a 
qualified charity or other tax exempt institution for 
which taxpayer may claim a deduction on his tax re
turn. I.R.C. § 170(c). Also applicable to trusts. I.R.C. 
§ 512(b)(1l). As regards tax exempt status of recipient 
organization, see Charitable organizations. See also Chari
table contributions. 
Charitable foundation. An organization dedicated to 
education, health, relief of the poor, etc.; organized for 
such purposes and not for profit and recognized as such 
for tax purposes under I.R.C. § 509(a). See also Charita
ble organizations, infra. 
Charitable gift. See Charitable deduction, supra. 
Charitable immunity. A doctrine which relieves a 
charity of liability in tort; long recognized, but current
ly most states have abrogated or restricted such immu
nity. 
Charitable institution. One which dispenses charity to 
all who need and apply for it, does not provide gain or 
profit in private sense to any person connected with it, 
and does not appear to place obstacles of any character 
in way of those who need and would avail themselves of 
charitable benefits it dispenses. Distinctive features are 
that it has no capital stock or shareholders and earns no 
profits or dividends; but rather derives its funds mainly 
from public and private charity and holds them in trust 
for objects and purposes expressed in its charter. Meth
odist Old Peoples Home v. Korzen, 39 Ill.2d 149, 233 
N.E.2d 537, 541, 542; People ex reI. Nordlund v. Associa
tion of Winnebago Home for Aged, 40 Ill.2d 91, 237 
N.E.2d 533, 539. 
Charitable organizations. As regards "exempt" tax 
status, such includes: "Corporations, and any communi-
234 
ty chest, fund, or foundation, organized and operated 
exclusively for religious, charitable, scientific, testing for 
public safety, literary, or educational purposes, or to 
foster national or international amateur sports competi
tion (but only if no part of its activities involve the 
provision of athletic facilities or equipment), or for the 
prevention of cruelty to children or animals, no part of 
the net earnings of which inures to the benefit of any 
private shareholder or individual, no substantial part of 
the activities of which is carrying on propaganda, or 
otherwise attempting, to influence legislation (except as 
otherwise provided in subsection (h), and which does not 
participate in, or intervene in (including the publishing 
or distributing of statements), any political campaign on 
behalf of (or in opposition to) any candidate for public 
office." I.R.C. § 501(c)(3). See also Benevolent associa
tions; Benevolent corporation; Charitable corporation; 
Charitable foundation; Charitable institution. 
Charitable purpose. Term as used for purpose of tax 
exemption has as its common element the accomplish
ment of objectives which are beneficial to community or 
area, and usually recognized charitable purposes, not 
otherwise limited by statute, are generally classified as: 
relief of poverty; advancement of education; advance
ment of religion; protection of health; governmental or 
municipal purposes; and other varied purposes the ac
complishment of which is beneficial to community. 
Bank of Carthage v. U. S., D.C.Mo., 304 F.Supp. 77, 80. 
A gift is for charitable purposes if it is for religious, 
scientific, charitable, literary, or educational purposes 
under tax law. 1.R.e. § 170(c)(4). These purposes are 
also required for a trust to qualify as a charitable trust. 
See also Charitable deduction; Charitable use. 
Charitable remainder. A gift over after an intervening 
estate to a qualified charity; qualifies as a tax deduction 
under certain conditions. 
Charitable remainder annuity trust. A trust which 
must pay the noncharitable income beneficiary or bene
ficiaries a sum certain annually, or more frequently, if 
desired, which is not less than 5% of the initial net fair 
market value of all property placed in the trust as 
finally determined for federal tax purposes. I.R.C. 
§ 664(d)(1). In re Danforth's Will, 81 Misc.2d 452, 366 
N.Y.S.2d 329, 330. 
Charitable trust. One in which property held by a 
trustee must be used for charitable purposes (advance
ment of health, religion, etc.). Fiduciary relationship 
with respect to property arising as a result of a manifes
tation of an intention to create it, and subjecting the 
person by whom the property is held to equitable duties 
to deal with the property for a charitable purpose. 
Restatement, Second, Trusts, § 348. See Charitable pur
pose. 
Charitable use. Charitable uses are defined as those of 
religious, educational, political or general social interest 
to mankind, or as those for the relief of poverty, ad
vancement of education or religion, or beneficial to the 
community generally. Thomason v. State, 245 C.A.2d 
793, 54 CaI.Rptr. 229, 232. See also Charitable purpose.

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Charity. A gift for, or institution engaged in, public 
benevol ent purposes. A gift for benefit of indefinite 
number of persons under influence of religion or edu
cation, relief from disease, assisting people to establish 
themselves in life, or erecting or maintaining public 
works. Johnson v. South Blue Hill Cemetery Ass'n, 
Me., 221 A.2d 280, 287. A "charity", in absence of 
legislative definition, is attempt in good faith, spiritual
ly, physically, intellectually, socially and economically 
to advance and benefit mankind in general, or those in 
need of advancement and benefit in particular, without 
regard to their ability to supply that need from other 
sources and without hope or expectation, if not with 
positive abnegation, of gain or profit by donor or by 
instrumentality of charity. Planned Parenthood Ass'n 
v. Tax Commissioner, 5 Ohio St.2d 117, 214 N.E.2d 222, 
225. See also Benevolence; Benevolent; Charitable; 
Charitable organizations. 
Public charity. A charity wherein the benefit is con
ferred on indefinite persons composing the public or 
some part of the public. 
Charlatan I sharl�t;m/. One who pretends to more 
knowledge or skill than he possesses; a quack; a faker. 
Charre of lead. A quantity consisting of 36 pigs of lead, 
each pig weighing about 70 pounds. 
Chart. A map used by navigators. 
Charta Ikart�/. In old English law, a charter or deed; 
an instrument written and sealed; the formal evidence 
of conveyances and contracts. Also any signal or token 
by which an estate was held. 
The term carne to be applied, by way of eminence, to 
such documents as proceeded from the sovereign, grant
ing liberties or privileges, and either where the recipient 
of the grant was the whole nation, as in the case of 
Magna Charta, or a public body, or private individual, in 
which case it corresponded to the modern word "char
ter." 
In the civil law, a paper suitable for inscription of 
documents or books; hence, any instrument or writing. 
See also Charter. 
Charta communis Ikart� k�myuwn�s/. In old English 
law, an indenture; a common or mutual charter or deed; 
one containing mutual covenants, or involving mutuali
ty of obligation; one to which both parties might have 
occasion to refer, to establish their respective rights. 
Charta cyrographata Ikart� kayrowgrrefeyt�/. In old 
English law, a chirographed charter; a charter executed 
in two parts, and cut through the middle (scinditur per 
medium), where the word "cyrographum, " or "chirograp
hum, " was written in large letters. See Chirograph. 
Charta de foresta Ikart� diy forest�/. A collection of the 
laws of the forest, made in the 9th Hen. III, and said to 
have been originally a part of Magna Charta. 
The charta de foresta was called the Great Charter of 
the woodland population, nobles, barons, freemen, and 
slaves, loyally granted by Henry III, early in his reign 
(A.D. 1217). There is a difference of opinion as to the 
CHARTER 
origi nal charter of the forest similar to that which exists 
respecting the true and original Magna Carta (q. v.), and 
for the same reason, viz., that both required repeated 
confirmation by the kings, despite their supposed inviol
ability. This justifies the remark of recent historians as 
to the great charter that "this theoretical sanctity and 
this practical insecurity are shared with 'the Great 
Charter of Liberties' by the Charter of the Forest which 
was issued in 1217." It is asserted with great positive
ness by Inderwick that no forest charter was ever grant
ed by King John, but that Henry III issued the charter 
of 1217 (which he puts in the third year of the reign, 
which, however, only commenced Oct. 28, 1216), in pur
suance of the promises of his father; and Lord Coke, 
referring to it as a charter on which the lives and 
liberties of the woodland population depended, says that 
it was confirmed at least thirty times between the death 
of John and that of Henry V. 
Charta de una parte Ikart� diy yuwn� partiy I. A deed
poll; a deed of one part. Formerly used to distinguish a 
deed poll -that is, an agreement made by one party 
only-from a deed inter partes. 
Charta partita Ikart� partayt�/. A charter-party. 
Charta de non ente non valet Ikart� diy non entiy non 
vrel�tl . A deed of a thing not in being is not valid. 
Charta! libertatum Ikartiy lib�rteyt�ml chartiyO I . The 
charters (grants) of liberties. These are Magna Charta 
and Charta de Foresta. 
Charta non est nisi vestimentum donationis Ikart� 
non est naysiy vest�ment�m d�neyshiy6wn�s/. A deed 
is nothing else than the vestment of a gift. 
Chartarum super fidem, mortuis testibus, ad patriam 
de necessitudine recurrendum est Ikarter�m 
s(y)uwp�r fayd�m, m6rtyuw�s test�b�s, red pretriy�m diy 
n�ses�tyuwd�niy rekurend�m est/. The witnesses being 
dead, the truth of charters must of necessity be referred 
to the country, i.e., a jury. 
Charte Ishart/. Fr. A chart, or plan, which mariners 
use at sea. 
Chartel Ikartel/. A variant of "cartel" (q.v.). 
Charte-partie Ishart-partiy/. Fr. In French marine 
law. A charter-party. 
Charter, v. To hire, rent or lease for a temporary use; 
e.g. to hire or lease a vessel for a voyage. 
Charter, n. An instrument emanating from the sover
eign power, in the nature of a grant, either to the whole 
nation, or to a class or portion of the people, to a 
corporation, or to a colony or dependency, assuring to 
them certain rights, liberties, or powers. Such was the 
"Great Charter" or "Magna Charta, " and such also were 
the charters granted to certain of the English colonies in 
America. 
A charter differs from a constitution, in that the 
former is granted by the sovereign, while the latter is 
established by the people themselves.

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CHARTER 
A city's organic law. Charter of municipal corpora
tion consists of the creative act of incorporation, togeth
er with all those laws in force which relate to the 
incorporation, whether defining the powers of the corpo
ration or regulating the mode of exercise thereof, and 
statute does not fail to become part of charter simply 
because it is not labeled as such. Opinion of the Jus
tices, Del., 276 A.2d 736, 739. 
An act of a legislature creating a business corporation, 
or creating and defining the franchise of a corporation. 
Under modern statutes, a charter is usually granted by 
the state secretary of state, who acts under general 
statutory authority conferred by the state legislature. 
Also a corporation's constitution or organic law; that is 
to say, the articles of incorporation taken in connection 
with the law under which the corporation was orga
nized. The authority by virtue of which an organized 
body acts. A contract between the state and the corpo
ration, between the corporation and the stockholders, 
and between the stockholders and the state. See Corpo
rate charter. 
Leasing or hiring of airplane, vessel, or the like. See 
Charter-party . 
In old English law, a deed or other written instrument 
under seal; a conveyance, covenant, or contract. 
Bank charter. Document issued by governmental au
thority permitting a bank to operate and transact busi
ness. 
Bareboat charter. Charter where ship owner only pro
vides ship, with charterer providing personnel, insur
ance and other necessary materials and expenses. See 
also Bareboat charter. 
Blank charter. In old English law, a document given to 
the agents of the crown in the reign of Richard II with 
power to fill up as they pleased. 
Charter agreement. See Charter-party. 
Charter of affreightment. See Affreightment. 
Gross charter. Charter where ship owner provides all 
personnel and equipment and incurs other expenses 
such as port costs. 
Time charter. Charter wherein vessel is leased for spec
ified time rather than for specified trip or voyage. See 
also Time (Time charter). 
Chartered Life Underwriter (C.L.V.). A designation 
conferred by the American College of Life Underwriters 
in recognition of the attainment of certain standards of 
education and proficiency in the art and science of life 
underwriting. 
Chartered ship. A ship hired or freighted; a ship which 
is the subject-matter of a charter-party. 
Charterer. One who charters (i.e., hires, leases or en
gages) a vessel, airplane, etc. for transportation or voy
age. 
Charter-land. In English law, otherwise called "book
land. " Property held by deed under certain rents and 
free services. It, in effect, differs nothing from the free 
236 
socage lands, and hence have arisen most of the freehold 
tenants, who hold of particular manors, and owe suit 
and service to the same. 2 Bl.Comm. 90. 
Charter-party. A contract by which a ship, or some 
principal part thereof, is let to a merchant for the 
conveyance of goods on a determined voyage to one or 
more places. 
The term "charter party" or "charter agreement", 
often shortened to "charter," designates the document 
in which are set forth the arrangements and contractual 
engagements entered into when one person (the "char
terer") takes over the use of the whole, or a substantial 
portion, of a ship belonging to another (the "owner"). 
Chartis reddendis Ikart;)s r;)dend;)s/. (For returning 
the charters.) An ancient writ which lay against one 
who had charters of feoffment intrusted to his keeping 
and refused to deliver them. 
Chartophylax Ikart6f;)h�ks/. In old European law, a 
keeper of records or public instruments; a chartulary; a 
registrar. 
Chase. To pursue or follow rapidly with the intention of 
catching or driving away. See Fresh pursuit. 
In English law, the liberty or franchise of hunting, 
one's self, and keeping protected against all other per
sons, beasts of the chase within a specified district, 
without regard to the ownership of the land. The act of 
acquiring possession of animals ferre naturre by force, 
cunning, or address. A privileged place for preservation 
of deer and beasts of the forest. It is commonly less 
than a forest and of larger compass than a park. Every 
forest is a chase, but every chase is not a forest. It 
differs from a park in that it is not inclosed, yet it must 
have certain metes and bounds. In old English law, a 
"common" chase was a place where all alike were enti
tled to hunt wild animals. 
Chaste. Never voluntarily having had unlawful sexual 
intercourse. 
Chaste character. Denoting purity of mind and inno
cence of heart; not limited merely to unlawful sexual 
intercourse. 
Chastity. Purity; continence. Quality or state of being 
chaste. It means that virtue which prevents the unlaw
ful intercourse of the sexes; the state of purity or 
abstinence from unlawful sexual connection. 
Chattel I ch,et;)l/ . An article of personal property, as 
distinguished from real property. A thing personal and 
movable. It may refer to animate as well as inanimate 
property. See also Goods; Property (Personal property) . 
Personal chattel. Movable things. Personal property 
which has no connection with real estate. See Goods; 
Property (Personal Property). 
Real chattels. Such as concern real property, such as 
leasehold estates; interests issuing out of, or annexed to, 
real estate; such chattel interests as devolve after the 
manner of realty. An interest in real estate less than 
freehold or fee. See also Fixture.

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Chattel lien. Chattel liens exist in favor of persons 
expending labor, skill or materials on any chattel or 
furnishing storage thereof at request of owner, his 
agent, reputed owner, or lawful possessor. See e.g. Arti
san's lien. 
Chattel mortgage. A pre-Uniform Commercial Code 
security device whereby a security interest was taken by 
the mortgagee in personal property of the mortgagor. A 
transfer of some legal or equitable right in personal 
property or creation of a lien thereon as security for 
payment of money or performance of some other act, 
subject to defeasance on performance of the conditions. 
Such security device has generally been superseded by 
other types of security agreements under U.C.C. Article 
9 (Secured Transactions). See Secured transaction; Se
curity agreement. 
Chattel paper. A writing or writings which evidence 
both a monetary obligation and a security interest in or 
a lease of specific goods. In many instances chattel 
paper will consist of a negotiable instrument coupled 
with a security agreement. When a transaction is evi
denced both by such a security agreement or a lease and 
by an instrument or a series of instruments, the group 
of writings taken together constitutes chattel paper. 
U.C.C. § 9-105(1)(b). See Secured transaction; Security 
agreement. 
Chaud-medley /showdmMliy/. A homicide committed 
in the heat of an affray and while under the influence of 
passion; it is thus distinguished from chance-medley, 
which is the killing of a man in a casual affray in 
self-defense. It has been said, however, that the distinc
tion is of no great importance. See Homicide. 
Chauffeur. A person employed to operate and attend 
motor vehicle for another. 
Chauntry rents /ch6ntriy rents/. In old English law, 
money paid to the Crown by the servants or purchasers 
of chauntry-lands. See Chantry. 
Chaussee / showsey /. Fr. A levee of earth, made to 
retain the water of a river or pond; a levee made in low, 
wet, and swampy places to serve as a road. 
Cheat, v. To deceive and defraud. It necessarily implies 
a fraudulent intent. The words "cheat and defraud" 
usually mean to induce a person to part with the posses
sion of property by reason of intentionally false repre
sentations relied and acted upon by such person to his 
harm. They include not only the crime of false pre
tenses, but also all civil frauds, and include all tricks, 
devices, artifices, or deceptions used to deprive another 
of property or other right. See Fraud. 
Cheat, n. Swindling; defrauding. The act of fraudulent
ly deceiving. See Fraud. 
Cheats, punishable at common law, were such cheats 
(not amounting to felony) as were effected by deceitful 
or illegal symbols or tokens which may affect the public 
at large, and against such common prudence could not 
have guarded. 
CHECK 
Cheaters, or escheators. In old English law, officers 
appointed to look after the king's escheats (q.v.), a duty 
which gave them great opportunities of fraud and op
pression, and in consequence many complaints were 
made of their misconduct. Hence it seems that a cheat
er came to signify a fraudulent person, and thence the 
verb to cheat was derived. 
Check, v. To control or restrain; to hold within bounds. 
To verify or audit, as to examine the books and records 
of another or a business for accuracy and proper ac
counting practices. Particularly used with reference to 
the control or supervision of one department, bureau, 
office, or person over another. 
Check, n. A draft drawn upon a bank and payable on 
demand, signed by the maker or drawer, containing an 
unconditional promise to pay a sum certain in money to 
the order of the payee. State v. Perrigoue, 81 Wash.2d 
640, 503 P.2d 1063, 1066. U.C.C. § 3-104(2)(b). 
The Federal Reserve Board defines a check as "a draft 
or order upon a bank or banking house purporting to be 
drawn upon a deposit of funds for the payment at all 
events of a certain sum of money to a certain person 
therein named or to him or his order or to bearer and 
payable instantly on demand." It must contain the 
phrase "pay to the order of." 
See also Bad check; Bogus check; Cancelled check; 
Cashier's check; Depository transfer check (DTC); Draft; 
Raised check; Registered check; Stale check; Travelers 
check. 
Blank check. Check which is signed by drawer but left 
blank as to payee and/or amount. 
Cashier's check. A bank's own check drawn on itself 
and signed by the cashier or other authorized official. It 
is a direct obligation of the bank. One issued by an 
authorized officer of a bank directed to another person, 
evidencing that the payee is authorized to demand and 
receive upon presentation from the bank the amount of 
money represented by the check. A form of a check by 
which the bank lends its credit to the purchaser of the 
check, the purpose being to make it available for imme
diate use in banking circles. A bill of exchange drawn 
by a bank upon itself, and accepted by the act of is
suance. In its legal effect, it is the same as a certificate 
of deposit, certified check or draft. An acknowledgment 
of a debt drawn by bank upon itself. See also Certified 
check. 
Memorandum check. A check given by a borrower to a 
lender, for the amount of a short loan, with the under
standing that it is not to be presented at the bank, but 
will be redeemed by the maker himself when the loan 
falls due. This understanding is evidenced by writing 
the word "Mem." on the check. 
Personal check. An individual's own check drawn on 
his own account. 
Pos t-dated check. A check which bears a date after the 
date of its issue. Its negotiability is not affected by 
being postdated and it is payable on its stated date. 
U.C.C. § 3-114. 
Traveler's check. See Traveler's check.

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CHECKERBOARD SYSTEM 
Checkerboard system. This term, with reference to 
entries on lands, means one entry built on another, and 
a third on the second. 
Check kiting. Practice of writing a check against a 
bank account where funds are insufficient to cover it 
and hoping that before it is deposited the necessary 
funds will have been deposited. First State Bank & 
Trust Co. of Edinburg v. George, Tex.Civ.App., 519 
S.W.2d 198, 204. Transfer of funds between two or more 
banks to obtain unauthorized credit from a bank during 
the time it takes the checks to clear. State v. Wooding
ton, 31 Wis.2d 151, 142 N.W.2d 810, 820. In effect, a 
kite is a bad check used temporarily to obtain credit. 
See Bad check. 
Check-off system. Procedure whereby employer de
ducts union dues directly from pay of employees and 
remits such sums to union. 
Check register. Journal used to record checks issued. 
Check-roll. In English law, a list or book, containing 
the names of such as are attendants on, or in the pay of, 
the queen or other great personages, as their household 
servants. 
Checks and balances. Arrangement of governmental 
powers whereby powers of one governmental branch 
check or balance those of other branches. See also 
Separation of powers. 
Chefe. In Anglo-Norman law, were or weregild; the 
price of the head or person (capitis pretium ). 
Chemerage Ishem(�)razh/. In old French law, the privi
lege or prerogative of the eldest. A provincial term 
derived from chemier. 
Chemical analysis. Any form of examination through 
use of chemicals as in blood tests to determine a person's 
sobriety, the presence of drugs, etc. See, e.g., Blood test 
evidence; Breathalyzer test; DNA identification; Intoxilyz
er; Intoximeter. 
Chemier Ishemyey/. In old French law, the eldest born. 
Chemin Ish(�)mren/. Fr. The road wherein every man 
goes; the king's highway. 
Cheque Ichek/. A variant of check (q.u.). 
Cherokee Nation. One of the civilized Indian tribes. 
See Indian tribe. 
Chevage Ichiyv�j/. In old English law, a sum of money 
paid by villeins to their lords in acknowledgment of 
their bondage. It was exacted for permission to marry, 
and also permission to remain without the dominion of 
the lord. When paid to the king, it was called subjec
tion. Cheuage seems also to have been used for a sum of 
money yearly given to a man of power for his coun
tenance and protection as a chief or leader. 
Chevantia I ch�vrensh(iy)�/. A loan or advance of money 
upon credit. 
Chevisance I chev�z�ns/. An agreement or composition; 
an end or order set down between a creditor or debtor; 
238 
an indirect gain in point of usury, etc. Also, an unlaw
ful bargain or contract. 
Cheze. A homestead or homesfall which is accessory to 
a house. 
Chicago Board of Trade. Commodities exchange where 
futures contracts in a large number of agricultural prod
ucts are transacted. 
Chicane I sh�keyn/. Swindling; shrewd cunning. The 
use of tricks and artifice. 
Chickasaw Nation. One of the civilized Indian tribes. 
See Indian tribe. 
Chief. One who is put above the rest. Principal; lead
ing; head; eminent in power or importance; the best or 
most important or valuable of several; paramount; of 
leading importance. 
Declaration in chief is a declaration for the principal 
cause of action. 
Examination in chief is the first examination of a wit
ness by the party who produces him. 
Tenant in chief See Chief, tenant in, infra. 
Chief baron. Formerly, the presiding judge of the Eng
lish court of exchequer; answering to the chief justice of 
other courts. Superseded by Lord Chief Justice of Eng
land. 
Chief clerk. The principal clerical officer of a court, 
bureau or department, who is generally charged, subject 
to the direction of his superior officer, with the superin
tendence of the administration of the business of the 
office. 
Chief executive. See Chief magistrate. 
Chief Judge. See Chief Justice. 
Chief Justice. The presiding, most senior, or principal 
judge of a court. Compare Associate justices. 
Chief Justice of England. The title formerly given to 
the presiding judge in the Queen's Bench Division of the 
high court of justice, and, in the absence of the Lord 
Chancellor, president of the high court, and also an ex 
officio judge of the court of appeals. Now superseded by 
the "Lord Chief Justice of England" who is President of 
the Queen's Bench Division. 
Chief Justice of the Common Pleas. In England, the 
presiding judge in the court of common pleas, and after
wards in the common pleas division of the high court of 
justice, and one of the ex officio judges of the high court 
of appeal. Office disappeared in 1881. 
Chief justiciar Ichiyf j�stishiy�r/. In old English law, a 
high judicial officer and special magistrate, who presid
ed over the aula regis of the Norman kings, and who 
was also the principal minister of state, the second man 
in the kingdom, and, by virtue of his office, guardian of 
the realm in the king's absence. 3 Bl.Comm. 38. 
Chief lord. The immediate lord of the fee, to whom the 
tenants were directly and personally responsible.

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239 
Chief magistrate. The head of the executive depart
ment of government of a nation, state, or municipal 
corporation. The President is the chief executive of the 
United States. 
Chief office. Office of paramount importance or the 
leading office. 
Chief pledge. In old English law, the borsholder, or 
chief of the borough. 
Chief rents. In old English law, the annual payments of 
freeholders of manors; also called "quit-rents," because 
by paying them the tenant was freed from all other 
rents or services. Abolished by Law of Property Act of 
1922. 
Chief use. In customs law, for purposes of determining 
the proper tariff classification, this refers to the use by 
users, as a whole, of the type of commodity involved, and 
not merely individual use. Gleeson v. U.S., 432 F.2d 
1403, 1407, 58 C.C.P.A. 17. 
Chiefrie. In feudal law, a small rent paid to the lord 
paramount. 
Chief, tenant in. In English feudal law, all the land in 
the kingdom was supposed to be holden mediately or 
immediately of the king, who was styled the "Lord 
Paramount," or "Lord Above All;" and those that held 
immediately under him, in right of his crown and digni
ty, were called his tenants "in capite" or "in chief," 
which was the most honorable species of tenure, but at 
the same time subjected the tenant to greater and more 
burdensome services than inferior tenures did. One 
who held directly of the king. 
Child; Children. Progeny; offspring of parentage. Un
born or recently born human being. Wilson v. Weaver, 
358 F.Supp. 1147, 1154. At common law one who had 
not attained the age of fourteen years, though the mean
ing now varies in different statutes; e.g. child labor, 
support, criminal, etc. statutes. The term "child" or 
"children" may include or apply to: adopted, after-born, 
or illegitimate child; step-child; child by second or for
mer marriage; issue. 
See also Delinquent child; Disobedient child; Foster 
child; Ille gitimate child; Infancy; Juvenile; Minor; Negl ect
ed child; Person; Posthumous child; Pretermitted heir; 
Viable child. For negligence of child, see Parental liabili ty. 
Childs part. A "child's part," which a widow, by statute 
in some states, is entitled to take in lieu of dower or the 
provision made for her by will, is a full share to which a 
child of the decedent would be entitled, subject to the 
debts of the estate and the cost of administration up to 
and including distribution. 
Illegitimate child. Child born out of lawful wedlock. 
Legitimate child. Child born in lawful wedlock. 
Natural child. Child by natural relation or procreation. 
Child by birth, as distinguished from a child by adop
tion. Illegitimate children who have been acknowledged 
by the father. 
Pos thumous child. One born after the father's death. 
CHILLING A SALE 
Quasi-pos thumous child. In the civil law, one who, born 
during the life of his grandfather, or other male ascend
ant, was not his heir at the time he made his testament, 
but who by the death of his father became his heir in his 
life-time. 
Rights of unborn child. The rights of an unborn child 
are recognized in various different legal contexts; e.g. in 
criminal law, murder includes the unlawful killing of a 
fetus (Cal. Penal Code § 187), and the law of property 
considers the unborn child in being for all purposes 
which are to its benefit, such as taking by will or 
descent. After its birth, it has been held that it may 
maintain a statutory action for the wrongful death of 
the parent. In addition, the child, if born alive, is 
permitted to maintain an action for the consequences of 
prenatal injuries, and if he dies of such injuries after 
birth an action will lie for his wrongful death. While 
certain states have allowed recovery even though the 
injury occurre!i during the early weeks of pregnancy, 
when the child was neither viable nor quick, Sinkler v. 
Kneale, 401 Pa. 267, 164 A.2d 93; Smith v. Brennan, 31 
N.J. 353, 157 A.2d 497, other states require that the 
fetus be viable before a civil damage action can be 
brought on behalf of the unborn child. See, Viable child; 
Wrongful birth; Wrongful conception; Wrongful life. 
Child abuse. Any form of cruelty to a child's physical, 
moral or mental well-being. Also used to describe form 
of sexual attack which may or may not amount to rape. 
Such acts are criminal offenses in most states. See also 
Abuse (Female child); Abused and neglected children; 
Battered child syndrome; Protective order. 
Child labor laws. Network of laws on both federal and 
state levels prescribing working conditions for children 
in terms of hours and nature of work which may be 
performed, all designed to protect the child. Included 
are restrictions on number of hours that teen-agers can 
work during school year on school days and weekends; 
also specific hours during day that they can work. See 
also Fair Labor Standards Act; Working papers. 
Children's court. See Juvenile courts. 
Child support. The legal obligation of parents to con
tribute to the economic maintenance, including edu
cation, of their children; enforceable in both civil and 
criminal contexts. In a dissolution or custody action, 
money paid by one parent to another toward the ex
penses of children of the marriage. See also Nonsupport. 
Child's income tax. See Clifford trust; Kiddie tax. 
Child welfare. A generic term which embraces the 
totality of measures necessary for a child's well being; 
physical, moral and mental. 
Childwit. In Saxon law, the right which a lord had of 
taking a fine of his bondwoman gotten with child with
out his license. 
The custom in Essex county, England, whereby every 
reputed father of a bastard child was obliged to pay a 
small fine to the lord. 
Chilling a sale. The act of bidders or others who com
bine or conspire to suppress fair competition at a sale,

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CHILLING A SALE 
for the purpose of acquiring the property at less than its 
fair value. 
Chilling effect doctrine. In constitutional law, any law 
or practice which has the effect of seriously discouraging 
the exercise of a constitutional right, e.g. the right of 
appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 
2072, 23 L.Ed.2d 656. The deterrent effect of govern
mental action that falls short of a direct prohibition 
against the exercise of First Amendment rights. To 
constitute an impermissible chilling effect the constric
tive impact must arise from the present or future exer
cise or threatened exercise of coercive power. Reporters 
Comm. for Freedom of the Press v. American Telephone 
& Telegraph Co. et aI., C.A.D.C., 593 F.2d 1030, 1052; 
Sec. of State of Md. v. Joseph H. Munson Co., 467 U.S. 
947, 104 S.Ct. 2389, 2847, 81 L.Ed.2d 786. 
Chiltern hundreds Ichilt::lrn h�ndr::ldz/. In English law, 
the offices of steward or bailiff of His Majesty's three 
Chiltern Hundreds of Stoke, Desborough, and Bonen
ham; or the steward of the Manor of Northsted. Chilter 
Hundreds is an appointment under the hand and seal of 
the Chancellor of the Exchequer. The stewardship of 
the Chiltern Hundreds is a nominal office in the gift of 
the crown, usually accepted by members of the house of 
commons desirous of vacating their seats. By law a 
member once duly elected to parliament is compelled to 
discharge the duties of the trust conferred upon him, 
and is not enabled at will to resign it. But by statute, if 
any member accepts any office of profit from the crown 
(except officers in the army or navy accepting a new 
commission), his seat is vacated. If, therefore, any mem
ber wishes to retire from the representation of the 
county or borough by which he was sent to parliament, 
he applies to the lords of the treasury for the steward
ship of one of the Chiltern Hundreds, which having 
received, and thereby accomplished his purpose, he 
again resigns the office. 
Chimin Ichim::ln/. In old English law, a road, way, 
highway. It is either the king's highway (chiminus 
regis) or a private way. The first is that over which the 
subjects of the realm, and all others under the protec
tion of the crown, have free liberty to pass, though the 
property in the soil itself belong to some private individ
ual; the last is that in which one person or more have 
liberty to pass over the land of another, by prescription 
or charter. See Chemin. 
Chiminage Ichim::ln::lj/. A toll for passing on a way 
through a forest; called in the civil law "pedagium. " 
Chiminus I chim::ln::lsl. The way by which the king and 
all his subjects and all under his protection have a right 
to pass, though the property of the soil of each side 
where the way lieth may belong to a private man. 
Chimney money, or hearth money. A tax upon chim
neys or hearth; an ancient tax or duty upon houses in 
England, now repealed. 
Chinese wall. A fictional device used as a screening 
procedure which permits an attorney involved in an 
earlier adverse role to be screened from other attorneys 
240 
in the firm so as to prevent disqualification of the entire 
law firm simply because one member of firm previously 
represented a client who is now an adversary of the 
client currently represented by the firm. Weglarz v. 
Bruck, 1 Dist., 128 Ill.App.3d 1, 83 Ill.Dec. 266, 269, 470 
N.E.2d 21, 24. 
Chippingavel Ichip::lngrev::lll. In old English law, a tax 
upon trade; a toll imposed upon traffic, or upon goods 
brought to a place to be sold; a toll for buying and 
selling. 
Chirgemot, chirchgemot Ich�r(ch)g::lmowt/. (Also 
spelled Chirgemote, Chirchgemote, Circgemote, Kirk
mote.) In Saxon law, an ecclesiastical assembly or 
court. A synod or meeting in a church or vestry. 
Chirograph Ikayr::lgrrefl. In civil and canon law, an 
instrument written out and subscribed by the hand of 
the party who made it, whether the king or a private 
person. 
In old English law, a deed or indenture; also the last 
part of a fine of land, called more commonly, perhaps, 
the foot of the fine. An instrument of gift or convey
ance attested by the subscription and crosses of the 
witnesses, which was in Saxon times called "chirograp
hum, " and which, being somewhat changed in form and 
manner by the Normans, was by them styled "charta. " 
Anciently when they made a chirograph or deed which 
required a counterpart, as we call it, they engrossed it 
twice upon one piece of parchment contrariwise, leaving 
a space between, in which they wrote in capital letters 
the word "chirograph," and then cut the parchment in 
two through the middle of the word, giving a part to 
each party. 2 Bl.Comm. 296. 
Chirographa Ikayrogr::lf::l/. In Roman law, writings 
emanating from a single party, the debtor. 
Chirographer of fines Ikayrogr::lf::lr ::IV faynz/. In Eng
lish law, the title of the officer of the common pleas who 
engrossed fines in that court so as to be acknowledged 
into a perpetual record. 
Chirographum Ikayrogr::lf::lm/. In Roman law, a hand
writing; that which was written with a person's own 
hand. An obligation which a person wrote or subscribed 
with his own hand; an acknowledgment of debt, as of 
money received, with a promise to repay. An evidence 
or voucher of debt; a security for debt. A right of action 
for debt. 
Chirographum apud debitorem repertum prresumitur 
solutum Ikayrogr::lf::lm rep::ld deb::ltor::lm r::lp�rt::lm 
pr::lz(y)uwm::lt::lr s::ll(y)uwt::lm/. An evidence of debt 
found in the debtor's possession is presumed to be paid. 
Chirographqm non extans prresumitur solutum Ikay
rogr::lf::lm non ekstrenz pr::lz(y)uwm::lt::lr s::ll(y)uw
t::lm/. An evidence of debt not existing is presumed to 
have been discharged. 
Chiropody. Study and treatment of ailments of the foot. 
Chiropractic, chiropractics Ikayr::lprrekt::lk(s)/. The 
practice of "chiropractic" is a method of detecting and 
correcting by manual or mechanical means structural

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241 
imbalance, distortion or subluxations in the human body 
to remove nerve interferences where such is the result 
of or related to distortion, misalignment or subluxations 
of or in the vertebral column. Chiropractic Ass'n of 
New York, Inc. v. Hilleboe, 16 A.D.2d 285, 228 N.Y.S.2d 
358, 360. A system of therapeutic treatment, through 
adjusting of articulations of human body, particularly 
those of the spine. Walkenhorst v. Kesler, 92 Utah 312, 
67 P .2d 654, 662. The specific science that removes 
pressure on the nerves by the adjustment of the spinal 
vertebrae. 
Chiropractor Ikayraprrektar/. One who practices the 
system of chiropractic (q.v.). 
Chirurgeon Ikayr�rjan/. The ancient denomination of a 
surgeon. 
Chivalry. In feudal law, knight-service. Tenure in chiv
alry was the same as tenure by knight-service. 2 Bl. 
Comm. 61, 62. 
Chivalry, court of. See Court of Chivalry. 
Chivalry, tenure by. Tenure by knight-service. 
Choate Ikowatl. That which has become perfected or 
ripened as e.g. a choate lien (q.v.). 
Choate lien Ikowat liyn/. Lien which is perfected so 
that nothing more need be done to make it enforcible. 
Identity of lienor, property subject to lien and amount of 
lien are all established. Walker v. Paramount Engi
neering Co., C.A.Mich., 353 F.2d 445, 449; U. S. v. City 
of New Britain, Conn., 347 U.S. 81, 74 S.Ct. 367, 369, 98 
L.Ed. 520. The lien must be definite and not merely 
ascertainable in the future by taking further steps. 
Gower v. State Tax Commission, 207 Or. 288, 295 P.2d 
162. 
Choice of law. In conflicts of law, the question present
ed in determini�g what law should govern. There are a 
number of different choice of law principles used by 
courts in determining the applicable law to apply; e.g. 
substantive v�. procedure distinction, center of gravity, 
renvoi, lex fori, grouping-of-contacts, place of most sig
nificant relationship. See also Conflict of laws. 
Choice of law clause. A contractual provision wherein 
the parties designate the state whose law will govern 
disputes arising out of their agreement. 
Choral. In ancient times a person admitted to sit and 
worship in the choir; a chorister. 
Chorepiscopus I korapiskapas I . In old European law, a 
rural bishop, or bishop's vicar. 
Chose I showz/. Fr. A thing; an article of personal 
property. A chose is a chattel personal, and is either in 
action or in possession. See Chose in action; Chose in 
possession, infra. 
Chose local. A local thing; a thing annexed to a place, 
as a mill. 
Chose transitory. A thing which is movable, and may be 
taken away or carried from place to place. 
CHRONIC 
Chose in action. A thing in action; a right of bringing 
an action or right to recover a debt or money. Right of 
proceeding in a court of law to procure payment of sum 
of money, or right to recover a personal chattel or a sum 
of money by action. Gregory v. Colvin, 235 Ark. 1007, 
363 S.W.2d 539, 540. A personal right not reduced into 
possession, but recoverable by a suit at law. A right to 
personal things of which the owner has not the posses
sion, but merely a right of action for their possession. 
The phrase includes all personal chattels which are not 
in possession; and all property in action which depends 
entirely on contracts express or implied. A right to 
receive or recover a debt, demand, or damages on a 
cause of action ex contractu or for a tort or omission of a 
duty. Moran v. Adkerson, 168 Tenn. 372, 79 S.W.2d 44, 
45. A right to recover by suit a personal chattel. As
signable rights of action ex contractu and perhaps ex 
delicto. Coty v. Cogswell, 100 Mont. 496, 50 P.2d 249, 
250. Personalty to which the owner has a right of 
possession in future, or a right of immediate possession, 
wrongfully withheld. See Cause of action. 
Chose in possession. A personal thing of which one has 
possession. A thing in possession, as distinguished from 
a thing in action. Taxes and customs, if paid, are a 
chose in possession; if unpaid, a chose in action. See 
also Chose in action, supra. 
Chosen freeholders. Name for county or township 
boards in certain eastern states. 
Chrenecruda Ikriynkruwda/. Under the Salic law, a 
ceremony performed by a person who was too poor to 
pay his debt or fine, whereby he applied to a rich 
relative to pay it for him. It consisted (after certain 
preliminaries) in throwing green herbs upon the party, 
the effect of which was to bind him to pay the whole 
demand. 
Christian. Pertai�ing to Jesus Christ or the religion 
founded by him; professing Christianity. As a noun, it 
signifies one who accepts and professes to live by the 
doctrines and principles of the Christian religion; it 
does not include Mohammedans, Jews, pagans, or infi
dels. One who believes or professes or is assumed to 
believe in Jesus Christ, and the truth as taught by Him. 
Christianitatis curia Ikristiyrenateytas kyuriya/. The 
court Christian. An ecclesiastical court, as opposed to a 
civil or lay tribunal. See also Fourt Christian. 
Christianity. The religion founded and established by 
Jesus Christ. 
Christian name. The baptismal name as distinct from 
the surname. The name which is given one after his 
birth or at baptism, or is afterward assumed by him in 
addition to his family name. Such name may consist of 
a single letter. 
Christmas Day. A festival of the Christian church, 
observed on the 25th of December, in memory of the 
birth of Jesus Christ. 
Chronic Ikronak/. With reference to diseases, of long 
duration, or characterized by slowly progressive symp-

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CHRONIC 
toms; deepseated and obstinate, or threatening a long 
continuance;-distinguished from acute. 
Chronic alcoholism. A medically diagnosable disease 
characterized by chronic, habitual or periodic consump
tion of alcoholic beverages resulting in the (1) substan
tial interference with an individual's social or economic 
functions in the community, or (2) the loss of powers of 
self-control with respect to the use of such beverages. 
Church. In its most general sense, the religious society 
founded and established by Jesus Christ, to receive, 
preserve, and propagate His doctrines and ordinances. 
It may also mean a body of communicants gathered into 
church order; body or community of Christians, united 
under one form of government by the profession of the 
same faith and the observance of the same ritual and 
ceremonies; place where persons regularly assemble for 
worship; congregation; organization for religious pur
poses; religious society or body; the clergy or official
dom of a religious body. 
Church courts. Tribunals within the structure of a 
church charged with adjudicating disputes of an ecclesi
astical nature which may not be adjudicated in civil 
courts. 
Church of England. The established episcopal Church 
of England. Organized into 43 dioceses and 2 provinces 
(York and Canterbury). Governed by the General Syn
od. Membership is defined by Patronage (Benefices) 
Measure Act, 1986, § 39(1). 
Church property. Within constitutional exemption from 
taxation it means property used principally for religious 
worship and instruction. Church of the Holy Faith v. 
State Tax Commission, 39 N.M. 403, 48 P.2d 777, 784. 
Church register. Parish record of baptisms, marriages, 
deaths, etc. 
Church school. Church supported school providing gen
eral education in addition to religious instruction. 
Churl I ch;}rl/. In Saxon law, a freeman of inferior rank, 
chiefly employed in husbandry. A tenant at will of free 
condition, who held land from a thane, on condition of 
rents and services. See Ceorl. 
Churning. Churning occurs when a broker, exercising 
control over the volume and frequency of trades, abuses 
his customer's confidence for personal gain by initiating 
transactions that are excessive in view of the character 
of account and the customer's objectives as expressed to 
the broker. As a scheme, the essence of which is decep
tion of a relying customer, churning, as a matter of law, 
is considered a violation of federal securities law pro
scribing fraud in connection with the purchase and sale 
of securities. Securities Exchange Act of 1934, § lO(b), 
15 U.S.C.A. § 78j(b). Costello v. Oppenheimer & Co., 
Inc., C.A.I1l., 711 F.2d 1361, 1366. 
Ci. Fr. So; here. Ci Dieu Vo us eyde, so help you God. 
Ci deuant, heretofore. Ci bien, as well. 
C.I.A. Central Intelligence Agency. 
Cibaria Is�beriy�/. Lat. In the civil law, food; victuals. 
242 
Cicatrix Is�keytr�ks/sik�triks/. The mark left in the 
flesh or skin after the healing of a wound, and having 
the appearance of a seam or of a ridge of flesh. 
C.I.F. This term in a sales contract means that the price 
includes in a lump sum the cost of the goods and the 
insurance and freight to the named destination. 
Cigarette tax. An excise tax imposed on sale of ciga
rettes by both federal and state governments. 
C.I.O. Congress of Industrial Organizations. Merged 
with AFL (American Federation of Labor) in 1955. 
Cipher Isayf�r/. Ordinarily, a secret or disguised writ
ten communication, unintelligible to one without a key. 
As applied to telegrams, a "cipher" message is one that 
is unintelligible. 
Cippi Isipay/. An old English law term for the stocks, 
an instrument in which the wrists or ankles of petty 
offenders were confined. 
Circa Is;}rk�/. Lat. About; around; also, concerning; 
with relation to. Commonly used before a given date 
when the exact time is not known; as, circa 1800. 
Abbreviated circ. or c. 
Circada /s�rkeyt�/. A tribute anciently paid to the 
bishop or archbishop for visiting churches. 
Circuit Is;}rk�t/. Judicial divisions of the United States 
(e.g. thirteen judicial circuits wherein U.S. Courts of 
Appeal sit) or a state, originally so called because the 
judges traveled from place to place within the circuit, 
holding court in various locations. 
Circuit courts of appeals. Former name for federal 
intermediate appellate courts, changed in 1948 to 
present designation of United States Courts of Appeals. 
See 28 U.S.C.A. §§ 41-48. See Cou rts of Appeals, U.S. 
Circuit courts. Courts whose jurisdiction extends over 
several counties or districts, and of which terms are held 
in the various counties or districts to which their juris
diction extends. 
In several of the states, the name given to a tribunal, 
the territorial jurisdiction of which may comprise sever
al counties or districts, and whose sessions are held in 
such counties or districts alternately. These courts 
usually have general original jurisdiction. 
See also Cou rts of Appeals, U.S. 
Circuit paper. In English practice, a paper containing a 
statement of the time and place at which the several 
assises will be held, and other statistical information 
connected with the assises. 
Circuitus est evitandus; et boni judicis est lites di
rimere, ne lis ex lite oriatur I s�rkyuw�t�s est 
ev�trend�s, et b6wnay juwd�s�s est laytiyz d�rim�riy, niy 
lays eks hiytiy oriyeyt�r I. Circuity is to be avoided; and 
it is the duty of a good judge to determine litigations, 
lest one lawsuit arise out of another. 
Circuity of action. A complex, indirect, or roundabout 
course of legal proceeding, making two or more actions 
necessary in order to effect that adjustment of rights 
between all the parties concerned in the transaction

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243 
which, by a more direct course, might have been accom
plished in a single suit. Former problems of circuity of 
action have been remedied by Rules of Civil Procedure. 
Circular letter of credit. A letter authorizing one per
son to pay money or extend credit to another on the 
credit of the writer. Pines v. United States, C.C.A.lowa, 
123 F.2d 825, 828. See also Letter of credit. 
Circular notes. Instruments, similar to "letters of cred
it," drawn by resident bankers upon their foreign corre
spondents, in favor of persons traveling abroad. 
Circulated. A thing is "circulated" when it passes, as 
from one person or place to another, or spreads, as a 
report or tale. Willard v. State, 129 Tex.Cr.R. 384, 87 
S.W.2d 269, 270. 
Circulation. Transmission from person to person or 
place to place; e.g. interchange of money. Extent or 
degree of dissemination; e.g. total readers or issues sold 
of given publication. 
Circumspecte agatis /s�rk�mspektiy �geyt�s/. The title 
of an English statute passed 13 Edw. I (1285) and so 
called from the initial words of it, the object of which 
was to ascertain the boundaries of ecclesiastical jurisdic
tion in some particulars, or, in other words, to regulate 
the jurisdiction of the ecclesiastical and temporal courts. 
See Articles of the clergy. 
Circumstances. Attendant or accompanying facts, 
events or conditions. Subordinate or accessory facts; 
e.g. evidence that indicates the probability or improba
bility of an event. 
As used in a statute for an allowance for the wife in a 
divorce action, having regard to the "circumstances" of 
the parties, it includes practically everything which has 
a legitimate bearing on present and prospective matters 
relating to the lives of both parties. See also Change of 
circumstances. 
See also Extenuating circumstances; Extraordinary ci
rumstances. 
Circumstantial evidence. Testimony not based on ac
tual personal knowledge or observation of the facts in 
controversy, but of other facts from which deductions 
are drawn, showing indirectly the facts sought to be 
proved. People v. Yokum, 145 C.A.2d 245, 302 P.2d 406, 
410. The proof of certain facts and circumstances in a 
given case, from which jury may infer other connected 
facts which usually and reasonably follow according to 
the common experience of mankind. Foster v. Union 
Starch & Refining Co., 11 IlLApp.2d 346, 137 N.E.2d 499, 
502. Evidence of facts or circumstances from which the 
existence or nonexistence of fact in issue may be in
ferred. Inferences drawn from facts proved. Process of 
decision by which court or jury may reason from circum
stances known or proved, to establish by inference the 
principal fact. It means that existence of principal facts 
is only inferred from circumstances. Twin City Fire Ins. 
Co. v. Lonas, 255 Ky. 717, 75 S.W.2d 348, 350. 
The proof of various facts or circumstances which 
usually attend the main fact in dispute, and therefore 
tend to prove its existence, or to sustain, by their con-
CITATIONS, LAW OF 
sistency, the hypothesis claimed. Or as otherwise de
fined, it consists in reasoning from facts which are 
known or proved to establish such as are conjectured to 
exist. 
Circumstantibus, tales de. See Tales. 
Ciric /kir�k/. In Anglo-Saxon and old English law, a 
church. 
Ciric-bryce /kir�k-briych/. Any violation of the privi
leges of a church. 
Ciric sceat /kir�k shiyt/. Church-scot, or shot; an eccle
siastical due, payable on the day of St. Martin, consist
ing chiefly of corn. 
Cirliscus /s�rlisbs/. A ceorl (q.v.). 
Cista /sist�/. A box or chest for the deposit of charters, 
deeds, and things of value. 
Citacion /siytasyown/. In Spanish law, citation; sum
mons; an order of a court requiring a person against 
whom a suit has been brought to appear and defend 
within a given time. It is synonymous with the term 
emplazamiento in the old Spanish law, and the in jus 
vocatio of the Roman law. 
Citatio /sayteysh(iy)ow/. Lat. A citation or summons 
to court. See Citation. 
Citatio ad reassumendam causam /sayteysh(iy)ow red 
riyresyuwmend�m koz�m/. A summons to take up the 
cause. A process, in the civil law, which issued when 
one of the parties to a suit died before its determination 
for the plaintiff against the defendant's heir, or for the 
plaintiffs heir against the defendant, as the case might 
be; analogous to a bill of revivor, which is probably 
borrowed from this proceeding. 
Citatio est de juri naturali /sayteysh(iy)ow est diy juriy 
nrety�reylay /. A summons is by natural right. 
Citation /sayteysh�n/. A writ issued out of a court of 
competent jurisdiction, commanding a person therein 
named to appear on a day named and do something 
therein mentioned, or show cause why he should not. 
An order, issued by the police, to appear before a magis
trate or judge at a later date. A citation is commonly 
used for minor violations (e.g. traffic violations); thus 
avoiding having to take the suspect into immediate 
physical custody. See also Citation of authorities; Cite. 
Citationes non concedantur priusquam exprimatur 
super qua re fieri debet citatio / sayteyshiyowniyz non 
kons�drent�r priy;}skw�m ekspr�meyt�r suwp�r kwey riy 
fay�riy deb�t sayteysh(iy)ow/. Citations should not be 
granted before it is stated about what matter the cita
tion is to be made. (A maxim of ecclesiastical law.) 
Citation of authorities. The reading, or production of, 
or reference to, legal authorities and precedents (such as 
constitutions, statutes, reported cases, and treatises), in 
arguments to courts, in legal textbooks, law review 
articles, briefs, motions, and the like to substantiate or 
fortify the propositions advanced. See also Cite. 
Citations, law of. In Roman law, an act of Valentinian, 
passed A.D. 426, providing that the writings of only five

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CITATIONS, LAW OF 
jurists, viz., Papinian, Paul, Gaius, Ulpian, and Modesti
nus, should be quoted as authorities. The majority was 
binding on the judge. If they were equally divided the 
opinion of Papinian was to prevail; and in such a case, if 
Papinian was silent upon the matter, then the judge was 
free to follow his own view of the matter. 
Citators. A set of books which provide, through letter
form abbreviations or words, the subsequent judicial 
history and interpretation of reported decisions. The 
citators also denote the legislative and amendment his
tory, and cases that have cited or construed, constitu
tions, statutes, rules, regulations, etc. The most widely 
used set of citators is Shepard' s Citations. 
Cite. L. Fr. City; a city. Cite de Loundr', city of 
London. 
Cite. To summon; to command the presence of a person; 
to notify a person of legal proceedings against him and 
require his appearance thereto. To read or refer to 
legal authorities, in an argument to a court or else
where, in support of propositions of law sought to be 
established. To name in citation. To mention in sup
port, illustration, or proof of. See Citation; Citation of 
authorities. 
Citizen. One who, under the Constitution and laws of 
the United States, or of a particular state, is a member 
of the political community, owing allegiance and being 
entitled to the enjoyment of full civil rights. All per
sons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the 
United States and of the state wherein they reside. 
U.S.Const., 14th Amend. See Citizenship. 
"Citizens" are members of a political community who, 
in their associated capacity, have established or sub
mitted themselves to the dominion of a government for 
the promotion of their general welfare and the protec
tion of their individual as well as collective rights. 
Herriott v. City of Seattle, 81 Wash.2d 48, 500 P.2d 101, 
109. 
The term may include or apply to children of alien 
parents born in United States, Von Schwerdtner v. 
Piper, D.C.Md., 23 F.2d 862, 863; U. S. v. Minoru Yasui, 
D.C.Or., 48 F.Supp. 40, 54; children of American citizens 
born outside United States, Haaland v. Attorney Gener
al of United States, D.C.Md., 42 F.Supp. 13, 22; Indians, 
United States v. Hester, C.C.A.Okl., 137 F.2d 145, 147; 
National Banks, American Surety Co. v. Bank of Califor
nia, C.C.A.Or., 133 F.2d 160, 162; nonresident who has 
qualified as administratrix of estate of deceased resi
dent, Hunt v. Noll, C.C.A.Tenn., 112 F.2d 288, 289. 
However, neither the United States nor a state is a 
citizen for purposes of diversity jurisdiction. Jizemerji
an v. Dept. of Air Force, 457 F.Supp. 820. On the other 
hand, municipalities and other local governments are 
deemed to be citizens. Rieser v. District of Columbia, 
563 F.2d 462. A corporation is not a citizen for purposes 
of privileges and immunities clause of the Fourteenth 
Amendment. D. D. B. Realty Corp. v. Merrill, 232 
F.Supp. 629, 637. 
244 
Under the diversity statute, which mirrors U.S. Const. 
Article Ill's diversity clause, a person is a "citizen of a 
state" if he or she is a citizen of the United States and a 
domiciliary of a state of the United States. Gibbons v. 
Udaras na Gaeltachta, D.C.N.Y., 549 F.Supp. 1094, 1116. 
Citizen-informant. An eye witness who, with no motive 
but public service, and without expectation of payment, 
identifies himself or herself and volunteers information 
to the police. People v. Press, Colo.App., 633 P.2d 489, 
492. 
Citizen's arrest. A private citizen as contrasted with a 
police officer may, under certain circumstances, make 
an arrest, generally for a felony or misdemeanor 
amounting to a breach of the peace. A private person 
may arrest another: 1. For a public offense committed 
or attempted in his presence. 2. When the person 
arrested has committed a felony, although not in his 
presence. 3. When a felony has been in fact committed, 
and he has reasonable cause for believing the person 
arrested to have committed it. Calif. Penal Code, § 837. 
Citizenship. The status of being a citizen. There are 
four ways to acquire citizenship: by birth in the United 
States, by birth in U.S. territories, by birth outside the 
U.S. to U.S. parents, and by naturalization. See Corpo
rate citizenship; Diversity of citizenship; Dual citizenship; 
Federal citizenship; Naturalization; Jus sanguinis; Jus 
soli. 
City. A municipal corporation; in most states, of the 
largest and highest class. Also, the territory within the 
corporate limits. A political entity or subdivision for 
local governmental purposes; commonly headed by a 
mayor, and governed by a city council. 
City council. The principal governmental body of a 
municipal corporation with power to pass ordinances, 
levy taxes, appropriate funds, and generally administer 
city government. The name of a group of municipal 
officers constituting primarily a legislative and adminis
trative body, but which is often charged with judicial or 
quasi judicial functions, as when sitting on charges 
involving the removal of an officer for cause. 
City courts. Court which tries persons accused of violat
ing municipal ordinances and has jurisdiction over mi
nor civil or criminal cases, or both. 
City real estate. Property owned and used for munici
pal purposes. McSweeney v. Bazinet, 269 A.D. 213, 55 
N.Y.S.2d 558, 561. 
Civic. Pertaining to a city or citizen, or to citizenship. 
Civic enterprise. A project or undertaking in which 
citizens of a city co-operate to promote the common good 
and general welfare of the people of the city. 
Civil. Of or relating to the state or its citizenry. Relat
ing to private rights and remedies sought by civil actions 
as contrasted with criminal proceedings. 
The word is derived from the Latin civilis, a citizen. 
Originally, pertaining or appropriate to a member of a 
civitas or free political community; natural or proper to 
a citizen. Also, relating to the community, or to the

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policy and government of the citizens and subjects of a 
state. 
As to civil Bail; Commitment; Commotion; Conspiracy; 
Contempt; Corporation; Death; Injury; Liberty; Obligation; 
Officer; Possession; Remedy; Right; and War, see those 
titles. See, also, the titles which follow. 
Civil action. Action brought to enforce, redress, or 
protect private rights. In general, all types of actions 
other than criminal proceedings. Gilliken v. Gilliken, 
248 N.C. 710, 104 S.E.2d 861, 863. 
The term includes all actions, both those formerly 
known as equitable actions and those known as legal 
actions, or, in other phraseology, both suits in equity 
and actions at law. Thomason v. Thomason, 107 U.S. 
App.D.C. 27, 274 F.2d 89, 90. 
In the great majority of states which have adopted 
rules or codes of civil procedure as patterned on the 
Federal Rules of Civil Procedure, there is only one form 
of action known as a "civil action�" The former distinc
tions between actions at law and suits in equity, and the 
separate forms of those actions and suits, have been 
abolished. Rule of Civil Proc. 2; New York CPLR 
§ 103(a). 
Compare Penal action. 
Civil Aeronautics Board. The Civil Aeronautics Board, 
an independent regulatory commission, was originally 
established under the Civil Aeronautics Act of 1938. Its 
functions were terminated or transferred to other agen
cies beginning in 1966, with remaining functions trans
ferred to Transportation Secretary in 1985. See Federal 
Aviation Ad ministration. 
Civil authority clause. Provision in fire insurance poli
cy protecting insured from damages caused by firemen, 
police, and other civil authorities. 
Civil bail. A bond, deposit of money or of property, to 
secure the release of a person who is under civil arrest 
for failing to pay a debt which has been reduced to court 
order and its effect is to insure payment of such order. 
See also Bail. 
Civil Code. See Code Civil. 
Civil commitment. A form of confinement order used 
in the civil context for those who are mentally ill, 
incompetent, alcoholic, drug addicted, etc. as contrasted 
with the criminal commitment of a sentence. Also 
applicable to confinement for failing to pay a debt which 
has been converted to a court order for payment; the 
failure to pay being contempt of court. See also Commit
ment. 
Civil conspiracy. A combination of two or more per
sons who, by concerted action, seek to accomplish an 
unlawful purpose or to accomplish some purpose, not in 
itself unlawful, by unlawful means. Lake Mortgage Co., 
Inc. v. Federal Nat. Mortgage Ass'n, 159 Ind.App. 605, 
308 N.E.2d 739, 744. See Conspiracy. 
Civil contempt. A species of contempt of court which 
generally arises from a wilful failure to comply with an 
order of court such as an injunction as contrasted with 
CIVIL FRAUD 
criminal contempt which consists generally of contume
lious conduct in the presence of the court. Punishment 
for civil contempt may be a fine or imprisonment, the 
object of such punishment being compliance with the 
order of the court. Such contempt is committed when a 
person violates an order of court which requires that 
person in specific and definite language to do or refrain 
from doing an act or series of acts. Lichtenstein v. 
Lichtenstein, C.A.Pa., 425 F.2d 1111, 1113. It commonly 
consists of failing to do something ordered by the court 
in a civil action for the benefit of the opposing litigant, 
and the proceedings are instituted to compel or coerce 
obedience to the order or decree. Hoga v. Clark, 5 Dist., 
113 Ill.App.3d 1050, 69 Ill.Dec. 736, 448 N.E.2d 196, 201. 
See also Contempt. 
Civil Damage Acts. See Dram Shop Acts. 
Civil death. The state of a person who, though possess
ing natural life, has lost all civil rights and as to them is 
considered civilly dead. Hiroko Kawakita Hayashi v. 
Lorenz, Cal.App., 258 P.2d 1039, 1042. In some states, 
persons convicted of serious crimes are declared to be 
civilly dead which means that certain civil rights and 
privileges of the convicted offender including the right 
to vote and contract and to sue and be sued are forfeited. 
See also Civil disabilities, infra. 
A corporation which has formally dissolved or become 
bankrupt leaving an estate to be administered for the 
benefit of its shareholders and creditors becomes civilly 
"dead." In re Great Plains Royalty Corp., C.A.N.D., 471 
F.2d 1261, 1265. 
Civil disabilities. Apart from the sentence which is 
imposed upon a convicted offender, numerous civil disa
bilities are also often imposed. These disabilities, which 
adversely affect an offender both during his incarcera
tion and after his release, include denial of such privi
leges as voting, holding public office, obtaining many 
jobs and occupational licenses, entering judicially-en
forceable agreements, maintaining family relationships, 
and obtaining insurance and pension benefits. A form 
of civil disability resulting from a DWI conviction is the 
revocation or suspension of driver's license. See also 
Civil death. 
Civil disobedience. A form of lawbreaking employed to 
demonstrate the injustice or unfairness of a particular 
law and indulged in deliberately to focus attention on 
the allegedly undesirable law. See Civil disorder. 
Civil disorder. Any public disturbance involving acts of 
violence by assemblages of three or more persons, which 
causes an immediate danger of or results in damage or 
injury to the property or person of any other individual. 
18 U.S.C.A. § 232. See also Riot. 
Civil fraud. In taxation, the specific intent to evade a 
tax which taxpayer believes to be owing is an essential 
element of civil fraud. May also be applied to the tort 
of deceit or fraud in contrast to criminal fraud. See also 
Fraud.

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CIVILIAN 
Civilian. Private citizen, as distinguished from such as 
belong to the armed services, or (in England) the church. 
One who is skilled or versed in the civil law. 
Civilis /siv;:)bs/. Lat. Civil, as distinguished from crimi
nal. Civilis actio, a civil action. 
Civilista /siv;:)list;:)/. In old English law, a civil lawyer, 
or civilian. 
Civiliter /s;:)vibt;:)r/. Civilly. In a person's civil charac
ter or position, or by civil (not criminal) process or 
procedure. This term is used in distinction or opposi
tion to the word "criminaliter," -criminally, -to distin
guish civil actions from criminal prosecutions. 
Civiliter mortuus /s;:)vil;:)t;:)r mortyuw;:)s/. Civilly dead; 
dead in the view of the law. The condition of one who 
has lost his civil rights and capacities, and is considered 
civilly dead in law. See Civil death. 
Civilization. A law, an act of justice, or judgment which 
renders a criminal process civil. 
A term which covers several states of society; it is 
relative, and has no fixed sense, but implies an improved 
and progressive condition of the people, living under an 
organized government. It consists not merely in materi
al achievements, in accomplishment and accumulation 
of wealth, or in advancement in culture, science, and 
knowledge, but also in doing of equal and exact justice. 
Civil jury trial. Trial of civil action before a jury rather 
than before a judge. In suits at common law in Federal 
court where value in controversy exceeds $20.00, there 
is constitutional right to jury trial. U.S.Const., 7th 
Amend.; Fed.R.Civil P. 38. See also Jury trial. 
Civil law. That body of law which every particular 
nation, commonwealth, or city has established peculiar
ly for itself; more properly called "municipal" law, to 
distinguish it from the "law of nature," and from inter
national law. Laws concerned with civil or private 
rights and remedies, as contrasted with criminal laws. 
The system of jurisprudence held and administered in 
the Roman empire, particularly as set forth in the 
compilation of Justinian and his successors,-comprising 
the Institutes, Code, Digest, and Novels, and collectively 
denominated the "Corpus Juris Civilis," -as distin
guished from the common law of England and the canon 
law. The civil law (Civil Code) is followed in Louisiana. 
See Code Civil. 
Civil liability. The amenability to civil action as distin
guished from amenability to criminal prosecution. A 
sum of money assessed either as general, special or 
liquidated damages; may be either single, double or 
treble for violations such as overcharges. 
Civil liability acts. See Dram Shop Acts. 
Civil liberties. Personal, natural rights guaranteed and 
protected by· Constitution; e.g. freedom of speech, press, 
freedom from discrimination, etc. Body of law dealing 
with natural liberties, shorn of excesses which invade 
equal rights of others. Constitutionally, they are re
straints on government. Sowers v. Ohio Civil Rights 
Commission, 20 Ohio Misc. 115, 252 N.E.2d 463, 476. 
246 
State law may recognize liberty interests more extensive 
than those independently protected by the Federal Con
stitution. Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 
2442, 2449, 73 L.Ed.2d 16 (1982). See also Bill of Rights; 
Civil Rights Acts; Fundamental rights. 
Civil nuisance. At common law, anything done to hurt 
or annoyance of lands, tenements, or hereditaments of 
another. See Nuisance. 
Civil obligation. One which binds in law, and may be 
enforced in a court of justice. 
Civil offense. Term used to describe violations of stat
utes making the act a public nuisance. Also describes 
an offense which is malum prohibitum and not con
sidered reprehensible. 
Civil office. A non-military public office; one which 
pertains to the exercise of the powers or authority of 
government. 
Civil officer. See Officer. 
Civil penalties. Represents punishment for specific ac
tivities; e.g. violation of antitrust or securities laws, 
usually in the form of fines or money damages. See 
Damages (exemplary or punitive damages); Penal action; 
Statutory penalty; Treble damages. 
Civil possession. See Possession. 
Civil procedure. Body of law concerned with methods, 
procedures and practices used in civil litigation, e.g. 
Federal Rules of Civil Procedure; Title 28 of United 
States Code. 
Civil process. See Process. 
Civil responsibility. The liability to be called upon to 
respond to an action at law for an injury caused by a 
delict or crime, as opposed to criminal responsibility, or 
liability to be proceeded against in a criminal tribunal. 
Civil rights. See Civil liberties. 
Civil Rights Acts. Federal statutes enacted after Civil 
War, and more recently in 1957 and 1964, intended to 
implement and give further force to basic personal 
rights guaranteed by Constitution. Such Acts prohibit 
discrimination based on race, color, age, or religion. 
Civil rules. See Federal Rules of Civil Procedure. 
Civil servant. See Civil service. 
Civil service. Term generally means employment in 
federal, state, city and town government with such posi
tions filled on merit as a result of competitive examina
tions. Such employment carries with it certain statu
tory rights to job security, advancement, benefits, etc. 
See Civil Service Commission; Competitive civil service 
examination; Merit Systems Protection Board; Office of 
Personnel Management. 
Civil Service Commission. The United States Civil 
Service Commission (CSC) was created by act of Con
gress on January 16, 1883. Authority is codified under 
5 U.S.C.A. § 1101. 
The Civil Service Act was designed to establish a 
merit system under which appointments to Federal jobs 
are made on the basis of fitness-as determined by open

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and competitive examination-rather than personal 
preference or political considerations. Over the years, 
additional legislation and Executive orders have broad
ened the Commission's role to include such Federal 
personnel management activities as job classification, 
status and tenure, pay comparability, awards, training, 
labor-management relations, equal employment oppor
tunity, health and life insurance programs, and retire
ment. The Commission was reorganized and restruc
tured under the Civil Service Reform Act of 1978. 
Among the features of the Reform Act were the estab
lishment of an independent and equitable appeals pro
cess, protections against abuses of the merit system, and 
incentives for good work and skilled management. Ad
ditionally, the functions of the former Commission were 
divided between two new agencies-Office of Personnel 
Management and an independent Merit Systems Protec
tion Board (q. v.). 
Similar commissions exist in most states covering 
state and local public employment. 
Civil side. When the same court has jurisdiction of both 
civil and criminal matters, proceedings of the first class 
are often said to be on the civil side; those of the second, 
on the criminal side. 
Civil suits. See Civil action. 
Civil trials. Trials of civil as distinguished from crimi
nal cases. 
Civil war. In general, any internal armed conflict be
tween persons of same country. War Between the 
States in which Federal government contended against 
seceding Confederate states from 1861 to 1865. Also, in 
England, war between Parliamentarians and Royalists 
from 1642 to 1652. 
Civil year. See Year. 
Civis /siv:Js/. Lat. In the Roman law, a citizen; as 
distinguished from incola (an inhabitant); origin or 
birth constituting the former, domicile the latter. 
Civitas /siv:Jtres/. Lat. In the Roman law, any body of 
people living under the same laws; a state. Jus civita
tis, the law of a state; civil law. Civitates fcederatre, 
towns in alliance with Rome, and considered to be free. 
Citizenship; one of the three status, conditions, or quali
fications of persons. 
C.J. An abbreviation for chief justice; also for circuit 
judge; Corpus Juris. 
C.J.S. Corpus Juris Secundum. 
C.L. An abbreviation for civil law. 
Claflin trust. A type of trust in which donor or settlor 
makes specific provisions for termination and the courts 
respect such provisions by denying the beneficiary the 
right to terminate. Called an indestructible trust, deriv
ing its name from the case. Claflin v. Claflin, 149 Mass. 
19, 20 N.E. 454. 
Claim. To demand as one's own or as one's right; to 
assert; to urge; to insist. A cause of action. Means by 
or through which claimant obtains possession or enjoy-
CLAIM JUMPING 
ment of privilege or thing. Demand for money or prop
erty as of right, e.g. insurance claim. U.S. v. Tieger, 
D.C.N.J., 138 F.Supp. 709, 710. 
With respect to claims to a negotiable instrument of 
which a holder in due course takes free, the term 
"claim" means any interest or remedy recognized in law 
or equity that creates in the claimant a right to the 
interest or its proceeds. 
Right to payment, whether or not such right is re
duced to judgment, liquidated, unliquidated, fixed, con
tingent, matured, unmatured, disputed, undisputed, le
gal, equitable, secured, or unsecured; or right to an 
equitable remedy for breach of performance if such 
breach gives rise to a right to payment, whether or not 
such right to an equitable remedy is reduced to judg
ment, fixed, contingent, matured, unmatured, disputed, 
undisputed, secured, or unsecured. Bankruptcy Code, 
§ 101. 
In conflicts of law, a receiver may be appointed in any 
state which has jurisdiction over the defendant who 
owes a claim. Restatement, Second, Conflicts, § 369. 
In patent law, a claim is an assertion of what the 
invention purports to accomplish, and claims of a patent 
define the invention and the extent of the grant; any 
feature of an invention not stated in the claim is beyond 
the scope of patent protection. Smith v. ACME General 
Corp., C.A.Ohio, 614 F.2d 1086, 1088. 
See also Antecedent claim; Cause of action; Communi ty 
debt; Complaint; Counterclaim; Cross- claim; False claim; 
Joinder; Liability; Liqui dated claim; Third party complaint. 
For proof of claim, see Proof; for joinder of claims, see 
Joinder. 
Claim adjuster. Independent agent or employee of in
surance company who negotiates and settles claims 
against the insurer. See Adjuster; Claimant adjuster. 
Claim and delivery. Action at law for recovery of 
specific personal property wrongfully taken and de
tained, with damages which the taking or detention has 
caused. A modification of common-law action of replev
in. See also Replevin. 
Claimant. One who claims or asserts a right, demand or 
claim. See Claim; Plaintiff. 
Claimant adjuster. One who will obtain, secure, en
force, or establish a right, claim, or demand for an 
individual against an insurance company. 
Claim check. Form of receipt for bailed or checked 
property, which normally must be surrendered when 
such property is recovered. 
Claim in equity. In English practice, in simple cases, 
the summary proceeding by claim was sometimes 
adopted. This summary practice was created by orders 
22d April, 1850. By Consolid.Ord.1860, viii, r. 4, such 
claims were abolished. See Equity jurisdiction. 
Claim jumping. The location on ground, knowing it to 
be excess ground, within the staked boundaries of anoth
er mining claim initiated prior thereto, because law 
governing manner of making location had not been

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CLAIM JUMPING 
complied with, so that location covers the workings of 
the prior locators. Filing of duplicate mining claims 
hoping that prior claim will be invalid. 
Claim of cognizance or of consuance. An intervention 
by a third person, claiming jurisdiction or demanding 
judicature in cause, which plaintiff has commenced out 
of the claimant's court. Now obsolete. 2 Bl.Comm. 350, 
note; 3 Bl. Comm. 298. 
Claim of liberty. In English practice, a suit or petition 
to the queen, in the former court of exchequer, to have 
liberties and franchises confirmed there by the attorney 
general. 
Claim of ownership, right and title. As regards ad
verse possession, claim of land as one's own to hold it for 
oneself. Claim of right, claim of title and claim of 
ownership are synonymous. Claimant's intention to 
claim in hostility to real owner. Color of title and claim 
of title are synonymous. Intention of disseisor to appro
priate and use land as his own, irrespective of any 
semblance of color, or right, or title. See Adverse pos
session. 
Claim of right doctrine. As contemplated under doc
trine of adverse possession is simply that claimant is in 
possession as owner, with intent to claim the land as his 
or her own, and not in recognition of or subordination to 
record title owner. Sisson v. Koelle, 10 Wash.App. 746, 
520 P.2d 1380, 1384. In taxation, a judicially imposed 
doctrine applicable to both cash and accrual basis tax
payers which holds that an amount is includible in 
income upon actual or constructive receipt if the taxpay
er has an unrestricted claim to such amounts. A pay
ment received under a claim of right is includible in 
income even though there is a possibility that all or part 
of it may have to be returned. North American Oil 
Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 
L.Ed. 1197. 
Claim preclusion. See Res (Res judicata ). 
Claim property bond. A bond filed by a defendant in 
cases of replevin and of execution to procure return of 
goods. 
Claims Collection Act. Federal Act which requires that 
each agency of the federal government attempt to collect 
claims of the government (e.g. overpayments) arising out 
of the activities of the agency. 
Claims court. See Claims Court, U.S.; Court of Claims; 
Small Claims Court. 
Claims Court, U.S. This federal court was established 
in 1982 and succeeds to all the original jurisdiction 
formerly exercised by the Court of Claims, as now pro
vided for in 28 U.S.C.A. 1491 et seq. The court has 
jurisdiction to render money judgments upon any claim 
against the United States founded either upon the Con
stitution, or any act of Congress or any regulation of an 
executive department, or upon any express or implied in 
fact contract with the United States or for liquidated or 
unliquidated damages in cases not sounding in tort. 
Judgments of the Court are final and conclusive on both 
the claimant and the United States subject to an appeal 
248 
as of right to the U.S. Court of Appeals for the Federal 
Circuit. Authority also rests with the court to furnish 
reports on any bill that may be referred by either House 
of Congress. Jurisdiction of the Court is nationwide, 
and jurisdiction over the parties is obtained when suit is 
filed and process is served on the United States through 
the Attorney General. See also Court of Claims; Tucker 
Act. 
Clam Iklrem/. Lat. In the civil law, covertly; secretly. 
Clam delinquentes magis puniuntur quam palam 
Iklrem d;)liIJkwentiyz meYJ;)S pyuwniy;)nt;)r kwrem 
prel;)m/. Those sinning secretly are punished more se
verely than those sinning openly. 
Clamea admittenda in itinere per attornatum Ikley
miy;) redm;)tend;) in aytin;)riy p�r ;)torneyt;)m/. An an
cient writ by which the king commanded the justices in 
eyre to admit the claim by attorney of a person who was 
in the royal service, and could not appear in person. 
Clam factum id videtur esse, quod quisque, quum 
controversiam haberet, habiturumve se putaret, fec
it Iklrem frekt;)m id v;)diyt;)r esiy kwod kwiskwiy, k�m 
kontr;)v;)rsh(iy);)m h;)bir;)t, hreb;)t(y);)r;)mviy siy py;)
ter;)t, fiys;)t/. That appears to be covertly (secretly) 
done, which anyone did, when he had a legal dispute, or 
thought he would have one. 
Clamor. In old English law, a claim or complaint; an 
outcry; clamor. 
In the civil law, a claimant; a debt; anything claimed 
from another; a proclamation; an accusation. 
Clam, vi, aut precario Iklrem, vay, ot pr;)keriyow/. A 
technical phrase of the Roman law, meaning by force, 
stealth, or importunity. 
Clandestine. Secret, hidden, concealed; usually for 
some illegal or illicit purpose. For example, a clandes
tine marriage is one contracted without observing the 
conditions precedent prescribed by law, such as publica
tion of banns, procuring a license, or the like. 
Clarendon, assize of I ;)Sayz ;)v klrer;)nd;)n/. English 
statute (1166) the principal feature of which was an 
improvement of judicial procedure in the case of crimi
nals. It was a part of the same scheme of reform as the 
Constitution of Clarendon. 
Clarendon, constitutions of Ikonst;)tyuwsh;)nz ;)v 
klrer;)nd;)n/. Certain statutes made in the reign of Hen
ry II of England, at a parliament held at Clarendon 
(A.D. 1164), by which the king checked the power of the 
pope and his clergy, and greatly narrowed the exemp
tion they claimed from secular jurisdiction. 4 Bl.Comm. 
422. 
Class. A group of persons, things, qualities, or activities, 
having common characteristics or attributes. In re Ka
nawha Val. Bank, 144 W.Va. 346, 109 S.E.2d 649, 670. 
The order or rank according to which persons or things 
are arranged or assorted. Securities having similar 
features. Also, a body of persons uncertain in number.

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249 
A "classu within rule relating to class action must be 
taken in broad colloquial sense of group of people 
ranked together as having common characteristics, and 
the function of the enumerated requirements of rule is 
to assure that from those characteristics there arises a 
common legal position vis-e.-vis the opposing party, the 
legal right or obligations of which the court can effi
ciently and fairly adjudicate in a single proceeding. 
Ridgeway v. International Broth. of Elec. Workers, Local 
No. 134, D.C.Ill., 74 F.R.D. 597, 60l. 
Class action. See Class or representative action. 
Class directors. System whereby terms of corporate 
board of directors are staggered, thus making takeover 
attempt difficult. 
Classes of stock. Issuance of common stock in two or 
more general classes; e.g., Class A and Class B. Nor
mally, only one class has voting rights. See Stock. 
Class gift. A gift of an aggregate sum to a body of 
persons uncertain in number at time of gift, to be 
ascertained at a future time, who are all to take in 
equal, or other definite proportions, the share of each 
being dependent for its amount upon the ultimate num
ber. In re Clarke's Estate, 460 Pa. 41, 331 A.2d 408, 
410. 
Classiarius I klresiyeriy::>s I . A seaman or soldier serving 
at sea. 
Classici Iklres::>say I. In the Roman law, persons em
ployed in servile duties on board of vessels. 
Classification. Arrangement into groups or categories 
on the basis of established criteria. The word may have 
two meanings, one primarily signifying a division re
quired by statutes, fundamental and substantial, and 
the other secondary, signifying an arrangement or enu
meration adopted for convenience only. 
Classification of crimes. A grouping of crimes. Taxon
omy which may be based on the seriousness of the 
crime, e.g. felony or misdemeanor, or on the nature of 
the crime, e.g. malum prohibitum or malum in se, or on 
the objects of the crime, e.g. crimes against property or 
crimes against the person. Felonies and misdemeanors 
are also classified under federal statutes and sometimes 
in state statutes as Class A, B, etc., with punishments 
set for each class. 18 U.S.C.A. § 3559. Crimes are also 
commonly classified into degrees; e.g., first and second 
degree murder; and also as voluntary or involuntary 
(e.g. manslaughter). See also Degrees of crime; Of
fenses. 
Classification of risks. Term used in fire insurance to 
designate the nature and situation of the articles in
sured, and in accident insurance to the occupation of the 
applicant. 
Classified. Grouped into classes. See Classification. 
Classified tax. Tax system where different rates are 
assessed to each group of property. 
Class legislation. Legislation limited in operation to 
certain persons or classes of persons, natural or artifi-
CLAUSULA DEROGATIVA 
cial, or to certain districts of territory or state. Legisla
tion operating upon portion of particular class of per
sons or things. 
The term is applied to enactments which divide the 
people or subjects of legislation into classes, with refer
ence either to the grant of privileges or the imposition of 
burdens, upon an arbitrary, unjust, or invidious princi
ple, or which make arbitrary discriminations between 
those persons or things coming within the same class. 
Such laws commonly violate equal protection guarantees 
of Fourteenth Amendment. 
Class or representative action. A class action provides 
a means by which, where a large group of persons are 
interested in a matter, one or more may sue or be sued 
as representatives of the class without needing to join 
every member of the class. This procedure is available 
in federal court and in most state courts under Rule of 
Civil Procedure 23. See also New York C.P.L.R. § 90l. 
There are general requirements for the maintenance 
of any class suit. These are that the persons constitut
ing the class must be so numerous that it is impractica
ble to bring them all before the court, and the named 
representatives must be such as will fairly insure the 
adequate representation of them all. In addition, there 
must be an ascertainable class and there must be a well 
defined common interest in the questions of law and fact 
involved affecting the parties to be represented. The 
trial court must also certify the lawsuit as a class action. 
Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 
731, 433 P.2d 732. 
Prior to the revision of Federal Civil Procedure Rule 
23 in 1966, there were three categories of class actions, 
popularly known as "trueu, "hybrid", and "spurious." 
These categories no longer exist under present Rule 23. 
See Hybrid class action; Spurious class action. Com
pare Multid istrict litigation. 
Class voting. See Voting group. 
Clause Ik16z/. A single paragraph or subdivision of a 
pleading or legal document, such as a contract, deed, 
will, constitution, or statute. Sometimes a sentence or 
part of a sentence. See Paragraph. 
Clause potestative. In French law, the name given to 
the clause whereby one party to a contract reserves to 
himself the right to annul it. 
Clause rolls. In old English law, rolls which contain all 
such matters of record as were committed to close writs; 
these rolls are preserved in the Tower. 
Clausula I k16z(h)y::>b I . A clause; a sentence or part of a 
sentence in a written instrument or law. 
Clausula derogativa Ik16zh::>1::> d:m>g::>biyv::>I . A clause 
in a will which provides that no will subsequently made 
is to be valid. The latter would still be valid, but there 
would be ground for suspecting undue influence. 
Clausulre inconsuetre semper inducunt suspicionem 
Ik16zh::>liy iIJk::>nswiytiy semp::>r ::>nd(y)uwk::>nt s::>
spishiy6wn::>m/. Unusual clauses [in an instrument] al
ways induce suspicion.

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CLAUSULA 
Clausula generalis de residuo non ea complectitur 
qure non ejusdem sint generis cum iis qure speciatim 
dicta fuerant IkI6zh;)l;) jen;)reyl;)s diy r;)zidyuwow non 
iy;) k;)mplekt;)t;)r kwiy n6n ;)j�sd;)m sint jen;)r;)s k�m ay;)s 
kwiy speshiyeyt;)m dikt;) f(y)uw;)r;)nt/. A general clause 
of remainder does not embrace those things which are 
not of the same kind with those which had been special
ly mentioned. 
Clausula generalis non refertur ad expressa IkI6zh;)l;) 
jen;)reybs non r;)f�rt;)r red ;)kspres;)I . A general clause 
does not refer to things expressed. 
Clausula qure abrogationem excludit ab initio non 
valet IkI6zh;)l;) kwiy rebr;)geyshiy6wn;)m ;)kskl(y)uwd;)t 
reb ;)nish(iy)ow non vrel;)t/. A clause [in a law] which 
precludes its abrogation is void from the beginning. 
Clausula rebus sic stantibus IkI6zh;)l;) riyb;)s sik 
strent;)b;)s/. A tacit condition said to attach to all con
tracts meaning that they cease to be obligatory as soon 
as the state of facts out of which they arose has changed. 
This principle was used to demand payment on a con
tract value for value when the currency in which pay
ment had been specified had become worthless through 
inflation I depreciation. 
Clausula vel dispositio inutilis per prresumptionem 
remotam, vel causam ex post facto non fulcitur 
Ikl6zh;)b vel disp;)zish(iy)ow inyuwt;)bs p�r pr;)
z�m(p)shiy6wn;)m r;)m6wt;)m, vel k6z;)m eks powst 
frektow non f�ls;)t;)r I. A useless clause or disposition 
[one which expresses no more than the law by intend
ment would have supplied] is not supported by a remote 
presumption [or foreign intendment of some purpose, in 
regard whereof it might be material], or by a cause 
arising afterwards [which may induce an operation of 
those idle words]. 
Clausum IkI6z;)m/. Lat. Close, closed up, sealed. In
closed, as a parcel of land. A writ was either clausum 
(close) or apertum (open). Grants were said to be by 
literre patentre (open grant) or literre clausre (close grant); 
2 Bl.Comm. 346. Occurring in the phrase quare clau
sum fregit it denotes in this sense only realty in which 
the plaint iff has some exclusive interest, whether for a 
limited or unlimited time or for special or for general 
purposes. 
Clausum fregit Ikl6z;)m friyj;)t/. L. Lat. (He broke the 
close.) In pleading and practice, technical words for
merly used in certain actions of trespass, and still re
tained in the phrase quare clausum fregit (q.v.). 
Clausum paschire Ikl6z;)m preskiyiy/. In English law, 
the morrow of the utas, or eight days of Easter; the end 
of Easter; the Sunday after Easter-day. 
Clausura Ikl;)zhur;)/. In old English law, an inclosure. 
Clausura heyre, the inclosure of a hedge. 
Clavia I kleyviy;) I . In old English law, a club or mace; 
tenure per serjeantiam clavire, by the serjeanty of the 
club or mace. 
Clawa. A close, or small inclosure. 
250 
Clayton Act. A Federal law enacted in 1914 as amend
ment to the Sherman Antitrust Act dealing with anti
trust regulations and unfair trade practices. 15 U.S. 
C.A. §§ 12-27. The Act prohibits price discrimination, 
tying and exclusive dealing contracts, mergers, and in
terlocking directorates, where the effect may be substan
tially to lessen competition or tend to create a monopoly 
in any line of commerce. 
Clean. Irreproachable; innocent of fraud or wrongdoing; 
free from defect in form or substance; free from excep
tions or reservations. It is a very elastic adjective, 
however, and is particularly dependent upon context. 
Clean Air Acts. Federal and state environmental stat
utes enacted to regulate and control air pollution. See 
e.g. 42 U.S.C.A. § 7401 et seq. 
Clean bill. Bill of exchange without documents at
tached. 
Clean bill of health. One certifying that no contagious 
or infectious disease exists, or certifying as to healthy 
conditions generally without exception or reservation. 
See Bill (Maritime law). 
Clean bill of lading. One without exception or reserva
tion as to the place or manner of stowage of the goods, 
and importing that the goods are to be (or have been) 
safely and properly stowed under deck. One which 
contains nothing in the margin qualifying the words in 
the bill of lading itself. 
Clean hands doctrine. Under this doctrine, equity will 
not grant relief to a party, who, as actor, seeks to set 
judicial machinery in motion and obtain some remedy, if 
such party in prior conduct has violated conscience or 
good faith or other equitable principle. Franklin v. 
Franklin, 365 Mo. 442, 283 S.W.2d 483, 486. One seek
ing equitable relief cannot take advantage of one's own 
wrong. Fair Automotive Repair, Inc. v. Car-X Service 
Systems, Inc., 2 Dist., 128 Ill.App.3d 763, 84 Ill. Dec. 25, 
471 N.E.2d 554, 558. 
Clean Water Acts. Federal and state environmental 
statutes enacted to regulate and control water pollution. 
See e.g. 33 U.S.C.A. § 1251 et seq. 
Clear. Obvious; beyond reasonable doubt; perspicuous; 
plain. Free from all limitation, qualification, question 
or shortcoming. Free from incumbrance, obstruction, 
burden, limitation, etc. Plain, evident, free from doubt 
or conjecture, unequivocal, also unincumbered. Free 
from deductions or drawbacks. 
In banking, collection of funds on which check is 
drawn and payment of such funds to holder of check. 
Clearance. In maritime law, the right of a ship to leave 
port. The act of clearing or leaving port. The certifi
cate issued by the collector of a port evidencing the 
power of the ship to leave port. In contract for exhibi
tion of motion pictures, the interval of time between 
conclusion of exhibition in one theater and commence
ment of exhibition at another theater. Waxmann v. 
Columbia Pictures Corporation, D.C.Pa., 40 F.Supp. 108, 
111.

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251 
Clearance card. A letter given to an employee by his 
employer, at the time of his discharge or end of service, 
showing the cause of such discharge or voluntary quit
tance, the length of time of service, his capacity, and 
such other facts as would give to those concerned infor
mation of his former employment. 
Clearance certificate. Issued to ship's captain showing 
that customs requirements have been made. 
Clear and convincing proof. That proof which results 
in reasonable certainty of the truth of the ultimate fact 
in controversy. Lepre v. Caputo, 131 N.J.Super. 118, 
328 A.2d 650, 652. Proof which requires more than a 
preponderance of the evidence but less than proof be
yond a reasonable doubt. Clear and convincing proof 
will be shown where the truth of the facts asserted is 
highly probable. In re Estate of Lobe, Minn.App., 348 
N.W.2d 413, 414. See also Beyond a reasonable doubt; 
Burden of proof; Clear evidence or proof. 
Clear and present danger doctrine. Doctrine in con
stitutional law, first formulated in Schenck v. U. S., 249 
U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, providing that 
governmental restrictions on First Amendment free
doms of speech and press will be upheld if necessary to 
prevent grave and immediate danger to interests which 
government may lawfully protect. 
Speech which incites to unlawful action falls outside 
the protection of the First Amendment where there is a 
direct connection between the speech and violation of 
the law; this is the "clear and present danger test". 
People v. Winston, 64 Misc.2d 150, 314 N.Y.S.2d 489, 
495. 
Clear annual value. The net yearly value to the posses
sor of the property, over and above taxes, interest on 
mortgages, and other charges and deductions. 
Clear annuity. The devise of an annuity "clear" means 
an annuity free from taxes or free or clear of legacy or 
inheritance taxes. 
Clear chance. A "clear chance" to avoid accident with
in meaning of last clear chance doctrine involves the 
element of sufficient time to appreciate peril of the 
party unable to extricate himself therefrom, and to take 
necessary steps to avoid injuring him. Klouse v. North
ern Pac. Ry. Co., 50 Wash.2d 432, 312 P.2d 647, 650. See 
also Last clear chance doctrine. 
Clear days. If a certain number of clear days be given 
for the doing of any act, the time is to be reckoned 
exclusively, as well of the first day as the last. 
Clear evidence or proof. Evidence which is positive, 
precise and explicit, which tends directly to establish the 
point to which it is adduced and is sufficient to make out 
a prima facie case. It necessarily means a clear prepon
derance. It may mean no more than a fair preponder
ance of proof but may also be construed as requiring a 
higher degree of proof. It may convey the idea, under 
emphasis, of certainty, or understood as meaning beyond 
doubt. See also Beyond a reasonable doubt; Clear and 
convincing proof. 
CLEARLY PROVED 
Clearing. The departure of a vessel from port, after 
complying with the customs and health laws and like 
local regulations. See also Clearance; Clearance certifi
cate. 
In banking, a method of making exchanges and set
tling balances, adopted among banks and bankers. See 
Clearinghouse. 
Clearing account. An account containing amounts to 
be transferred to another account(s) before the end of 
the accounting period. 
Clearing corporation. A corporation, all of the capital 
stock of which is held by or for a national securities 
exchange or association registered under a statute of the 
U.S., such as the Securities Exchange Act of 1934. 
U.C.C. § 8-102(3). 
Clearinghouse. An association or place where banks 
exchange checks and drafts drawn on each other, and 
settle their daily balances. See U.C.C. § 4--104(d). 
With respect to a stock or commodities exchange, a 
facility which provides for the daily clearance of all 
transactions. With regard to futures transactions, a 
clearinghouse performs the following functions: con
firms that trades made each day are acknowledged by 
both parties; settles amounts owed daily on futures 
contracts due to changes in contract prices during the 
trading session; insures the financial worth of all fu
tures contracts that it has accepted. 
Clearing loan. One made to a bond dealer while an 
issue of bonds is being sold. 
Clearings. Method of making exchanges and settling 
balances among banks and bankers. 
Clearing title. Acts or proceedings necessary to render 
title marketable. 
Clear legal right. A right inferable as a matter of law 
from uncontroverted facts. 
Clearly. Visible, unmistakable, in words of no uncertain 
meaning. Beyond a question or beyond a reasonable 
doubt; honestly, straightforwardly, and frankly; plain
ly. Without obscurity, obstruction, entanglement, con
fusion, or uncertainty. Unequivocal. 
Clearly erroneous. For purposes of rule providing that 
findings of trial court shall not be set aside unless 
"clearly erroneous," refers to findings when based upon 
substantial error in proceedings or misapplication of 
law, Kauk v. Anderson, C.C.A.N.D., 137 F.2d 331, 333; 
or when unsupported by substantial evidence, or con
trary to clear weight of evidence or induced by errone
ous view of the law. Smith v. Porter, C.C.A.Ark., 143 
F.2d 292, 294. As a basis for appellate review, a finding 
is "clearly erroneous" when, although there is evidence 
to support it, the reviewing court on entire evidence is 
left with definite and firm conviction that a mistake has 
been committed. United States v. United States Gyp
sum, 333 U.S. 364, 395, 68 S.Ct. 525, 542. See also Error. 
Clearly proved. Proof by preponderance of the evi
dence. Olson v. Union Oil Co. of California, 25 Cal. 
App.2d 627, 78 P.2d 446, 447. Proof sufficient to satisfy

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CLEARLY PROVED 
mind of finder of facts that its weight is such as to cause 
a reasonable person to accept the fact as established. In 
re Frihauf, 58 Wyo. 479, 135 P.2d 427, 433. See Beyond 
a reasonable doubt; Clear and convincing proof. 
Clear market price. Fair market price. See Fair market 
value. 
Clear market value. Sum which property would bring 
on a fair sale by a willing seller not obliged to sell to a 
willing buyer not obliged to buy, or fair market value, or 
cash value. With regard to inheritance tax, highest 
price obtainable. See Fair market value. 
Clear reflection of income. The Internal Revenue Ser
vice has the authority to redetermine a taxpayer's in
come using a method which clearly reflects income if the 
taxpayer's method does not do so. I.R.C. § 446(b). In 
addition, the I.R.S. may apportion or allocate income 
among various related business if income is not "clearly 
reflected". I.R.C. § 482. 
Clear residue. Addition of income from funds, used to 
pay decedent's debts, administration expenses, and gen
eral legacies, to residue of estate. 
Clear title. Good title; marketable title; one free from 
incumbrance, obstruction, burden, or limitation. Frank 
v. Murphy, 64 Ohio App. 501, 29 N.E.2d 41, 43. See 
Marketable title. 
Clear title of record. Freedom from apparent defects, 
grave doubts, and litigious uncertainties. Such title as a 
reasonably prudent person, with full knowledge, would 
accept. Tull v. Milligan, 173 Okl. 131, 48 P.2d 835, 842. 
See Marketable title; Quiet title action. 
Clear view doctrine. See Plain view doctrine. 
Clemency Iklem:msiy/. Kindness, mercy, forgiveness, 
leniency; usually relating to criminal acts. Used e.g. to 
describe act of governor of state when he commutes 
death sentence to life imprisonment, or grants pardon. 
See also Amnesty; Pardon; Reprimand. 
Clementines Iklem:mtiynz/. In canon law, the collec
tion of decretals or constitutions of Pope Clement V, 
made by order of John XXII, his successor, who publish
ed it in 1317. 
Clement's inn. In English law, an inn of chancery. See 
Inns of chancery. 
Clergy. The whole of clergymen or ministers of religion. 
Also an abbreviation for "benefit of clergy". See Benefit 
of clergy. 
Clergyable. In old English law, allowing of, or entitled 
to, the benefit of clergy (privilegium clericale). Used of 
persons or crimes. 4 Bl.Comm. 371. See Benefit of 
clergy. 
Clergyman. Member of the clergy. Spiritual represent
ative of church. 
Clergy privilege. Formerly, exemption given to clergy 
from being tried in civil courts because of availability of 
trial in canonical court. See Benefit of clergy. 
Clerical. Pertaining to clergymen; or pertaining to the 
office or labor of a clerk. See also Clerk; Ministerial act. 
252 
Clericale priviIegium /klehr�keyliy priv�liyjiy�m/. In 
old English law, the clerical privilege; the privilege or 
benefit of clergy. 
Clerical error. Generally, a mistake in writing or copy
ing. Los Angeles Shipbuilding & Dry Dock Corporation 
v. Los Angeles County, 22 Cal.App.2d 418, 71 P.2d 282. 
It may include error apparent on face of instrument, 
record, indictment or information, In re Goldberg's Es
tate, 10 Ca1.2d 709, 76 P.2d 508, 512; error in respect of 
matters of record, Shotwell v. State, 135 Tex.Cr.R. 366, 
120 S.W.2d 97; errors, mistakes, or omissions by clerk, 
writer, counsel, or judge which are not the result of 
exercise of judicial function, Pacific Finance Corporation 
of California v. La Monte, 64 Idaho 438, 133 P.2d 921, 
922; Wilson v. City of Fergus Falls, 181 Minn. 329, 232 
N.W. 322, 323; failure of clerk to enter order, Keller v. 
Cleaver, 20 Cal.App.2d 364, 67 P.2d 131, 133; omission 
in statutory provision, Craig v. State, 204 Ark. 798, 164 
S.W.2d 1007, 1008; order fixing tax rate below statutory 
rate, In re Jagnow's Estate, 148 Misc. 657, 266 N.Y.S. 
785, 788; placing of case on calendar without notice, 
New England Furniture & Carpet Co. v. Willcuts, D.C. 
Minn., 55 F.2d 983, 987; purported order incongruous 
and irrelevant to surrounding recitals, Carpenter v. Pa
cific Mut. Life Ins. Co. of California, 14 Cal.2d 704, 96 
P.2d 796, 799; signature by judge to judgment which 
does not express judicial desire or intention, Bastajian v. 
Brown, 19 Cal.2d 209, 120 P.2d 9, 12. 
As applied to judgments and decrees is a mistake or 
omission by a clerk, counsel, judge or printer which is 
not the result of exercise of judicial function. In re 
Humboldt River System, 77 Nev. 244, 362 P.2d 265, 267. 
Clerical errors may be corrected by the court at any 
time of its own initiative or on the motion of any party 
and after such notice, if any, as the court orders. Fed.R. 
Civil P. 60(a). 
Clerical misprision. Mistake or fraud perpetrated by 
clerk of court which is susceptible of demonstration by 
face of record, or a clerical error, which is an error by 
clerk in transcribing or otherwise apparent on the face 
of the record. Ballew v. Fowler, 285 Ky. 149, 147 
S.W.2d 65, 66. 
Clerical tonsure. In old English law, the practice of 
having the head shaven, which was formerly peculiar to 
clerks, or persons in orders, and which the coifs worn by 
serjeants at law are supposed to have been introduced to 
conceal. 1 Bl.Comm. 24, note t; 4 Bl.Comm. 367. 
Clerici de cancellaria; clerici de cursu Iklehr�say diy 
krens�leriy�:k:irs(y)uw/. Clerks of the chancery. See 
Cursitors. 
Clerici non ponantur in officiis Iklehr�say non 
p�nrent�r in �fis(h)iyays/. Clergymen should not be 
placed in offices; i.e., in secular offices. 
Clerici prrenotarii Iklehr�say priyn�teriyay I. The six 
clerks in chancery. 
Clerico admittendo Iklehr�kow redm�t€mdow I. See Ad
mittendo clerico.

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253 
Clerico capto per statutum mercatorum /klehr�kow 
k�ptow par st�tyuwt�m m�rk�t6r�m/. A writ for the 
delivery of a clerk out of prison, who was taken and 
incarcerated upon the breach of a statute merchant. 
Clerico convicto commisso gaolre in defectu ordinarii 
deliberando /klehr�kow k�nviktow k�misow jeyliy in 
d�fekt(y)uw ord�neriyay d�1ib�rrendow/. An ancient 
writ, that lay for the delivery to his ordinary of a clerk 
convicted of felony, where the ordinary did not chal
lenge him according to the privilege of clerks. 
Clerico infra sacros ordines constituto, non eligendo 
in officium /klehr�kow infr� srekrows 6rd�niyz 
konst�tyuwtow, non. ebjendow, in �fis(h)iy�m/. A writ 
directed to those who had thrust a bailiwick or other 
office upon one in holy orders, charging them to release 
him. 
Clericus /klehr�k�s/. In old English law, a clerk or 
priest; a person in holy orders; a secular priest; a clerk 
of a court. An officer of the royal household, having 
charge of the receipt and payment of moneys, etc. In 
Roman law, a minister of religion in the Christian 
church; an ecclesiastic or priest. A general term, in
cluding bishops, priests, deacons, and others of inferior 
order. Also of the amanuenses of the judges or courts off 
the king. / 
Clericus et agricola et mercator, tempore belli, ut 
oret, colat, et commutet, pace fruuntur Ikler�k�s ed 
�grik�l� et m�rkeyt�r, temp�riy belay, at or�t k6wl�t et 
k6my�t�t, peysiy fruw�nt�r/. Clergymen, husbandmen, 
and merchants, in order that they may preach, culti
vate, and trade, enjoy peace in time of war. 
Clericus mercati /klehr�k�s m�rkeytay /. In old English 
law, clerk of the market. 
Clericus non connumeretur in duabus ecclesiis 
Iklehr�k�s non k;m(y)uwm�riyt�r in d(y)uweyb�s 
�kliyziy�s/. A clergyman should not be appointed to 
two churches. 
Clericus parochialis Iklehr�k�s p�rowkiyeybs/. In old 
English law, a parish clerk. 
Cli�rigos Ikleriygows/. In Spanish law, clergy; men 
chosen for the service of God. 
Clerk. Officer of court who files pleadings, motions, 
judgments, etc., issues process, and keeps records of 
court proceedings. Functions and duties of clerks of 
court are usually specified by statute or court rules; e.g. 
Fed.R. Civil P. 77, 79. 
Person employed in public office whose duties include 
keeping records or accounts. 
One who sells goods, waits on customers, or engages in 
clerical work such as bookkeeping, copying, transcrib
ing, letter writing, tabUlating, stenography, etc. 
A person in holy orders; a clergyman; a cleric; an 
individual attached to the ecclesiastical state, and who 
has the clerical tonsure. See 4 Bl.Comm. 366, 367. 
A law clerk assists an attorney or judge with legal 
research, brief writing, and other legal tasks. Is com
monly a recent law school graduate or law student. 
CLERK OF THE TABLE 
Clerk of Arraigns. In English law, an assistant to the 
clerk of assise. His duties were in the crown court on 
circuit. 
Clerk of Assize. In English law, officers who officiated 
as associates on the circuits. They recorded all judicial 
proceedings done by the judges on the circuit. 
Clerk of Enrollments. In English law, the former chief 
officer of the English enrollment office (q.v.). He now 
forms part of the staff of the central office. 
Clerk of the Crown in Chancery. See Crown office in 
chancery. 
Clerk of the House of Commons. An officer of the 
English House of Commons appointed by the crown for 
life. He sits at the table below the chair of the Speaker 
of the House. He makes entries, remembrances, and 
journals of the things done and passed in the house. He 
signs all orders of the house, indorses the bills sent or 
returned to the lords, and reads whatever is required to 
be read in the house. He has the custody of all records 
and other documents. 
Clerk of the Market. In English law, the overseer or 
superintendent of a public market, with jurisdiction 
over weights and measures. In old English law, he was 
a quasi judicial officer, having power to settle controver
sies arising in the market between persons dealing 
there. Called "clericus mercati." 4 Bl.Comm. 275. 
Clerk of the Parliaments. In England, one of the chief 
officers of the House of Lords. He is appointed by the 
Crown, by letters patent. On entering office he makes a 
declaration to make true entries and records of the 
things done and passed in the parliaments, and to keep 
secret all such matters as shall be treated therein. 
Assists in the ceremonial Royal Assent to passage of 
bills and statutes. 
Clerk of the Peace. In English law, an officer whose 
duties are to officiate at sessions of the peace, to prepare 
indictments, and to record the proceedings of the jus
tices, and to perform a number of special duties in 
connection with the affairs of the county. Office abol
ished in 1971 when Quarter Sessions' jurisdiction was 
transferred to the Crown Courts. 
Clerk of the Privy Seal. In England, these officers 
attend the lord privy seal, or, in absence of the lord 
privy seal, the principal secretary of state. Their duty 
is to write and make out all things that are sent by 
warrant from the signet to the privy seal, and which are 
to be passed to the great seal; and also to make out 
privy seals (as they are termed) upon any special occa
sion of his majesty's affairs. 
Clerk of the Signet. An officer, in England, whose duty 
it is to attend on the king's principal secretary, who has 
the custody of the privy signet, as well for the purpose of 
sealing his majesty's private letters, as also grants 
which pass his majesty's hand by bill signed. 
Clerk of the Table. An official of the British House of 
Commons who advises the speaker on all questions of 
order.

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CLERKSHIP 
Clerkship. The period which formerly must have been 
spent by a law-student in the office of a practicing 
attorney before admission to the bar. Term now gener
ally refers to law student who clerks for an attorney, 
law firm, or judge, or recent law school graduate who 
clerks for a judge. 
Clerks of Indictments. Officers attached to the central 
criminal court in England, and to each circuit. They 
prepare and settle indictments against offenders, and 
assist the clerk of arraigns. 
Clerks of Records and Writs. Officers formerly at
tached to the English court of chancery, whose duties 
consisted principally in sealing bills of complaint and 
writs of execution, filing affidavits, etc. By the judica
ture (officers') act, 1879, they were transferred to the 
central office of the supreme court, under the title of 
"Masters of the Supreme Court," and the office has been 
abolished. 
Clerks of Seats. In the principal registry of the probate 
division of the English high court, they discharge the 
duty of preparing and passing the grants of probate and 
letters of administration, take bonds from administra
tors, receive caveats against a grant being made, etc. 
Cliens Iklay:mz/. Lat. In the Roman law, a client or 
dependent. One who depended upon another as his 
patron or protector, adviser or defender, in suits at law 
and other difficulties. 
Client. An individual, corporation, trust, or estate that 
employs a professional to advise or assist it in the 
professional's line of work. Professionals include but 
are not limited to: attorneys, accountants, architects, 
etc. A person who employs or retains an attorney, or 
counsellor, to appear for him in courts, advise, assist, 
and defend him in legal proceedings, and to act for him 
in any legal business. 
Clientela Iklay:mtiyl;}/. In old English law, clientship, 
the state of a client; and, correlatively, protection, pa
tronage, guardianship. 
Client security fund. A fund set up by many state bar 
associations to cover losses incurred by persons as a 
result of dishonest conduct of member-attorneys. 
Client's privilege. Right of client to require attorney to 
not disclose confidential communications made to him in 
the attorney-client relationship, including disclosure on 
the witness stand. U. S. v. United Shoe Mach. Corp., 
D.Mass., 89 F.Supp. 357. See Attorney-client privilege; 
Commu nication (Co nfidential communica tions). 
Clifford Trust. A trust established for a period of at 
least 10 years and one day whereby title to income 
producing assets is transferred and then reclaimed when 
the trust expires. The objective of a Clifford trust was 
to shift income from parents in a high income tax 
bracket to children in a lower bracket. The Tax Reform 
Act of 1986 repealed the Clifford trust rules for transfers 
made after March 1, 1986 and the income of the trust is 
taxed at the grantor's rate. For Clifford trusts estab
lished prior to March 2, 1986, income is taxed at the 
254 
grantor's rate only if the child is under the age of 14. 
See also Kiddie tax. 
Clinical legal studies. Includes law student perform
ance in live cases, or in simulation of the lawyer's role, 
for the mastery of basic lawyering skills and the better 
understanding of professional responsibility, substantive 
and procedural law, and the theory of legal practice. 
Report Of The AALS-ABA Comm. On Guidelines for 
Clinical Legal Education 12 (1980). 
Clinical tests. Tests involving direct observation of the 
patient, including laboratory and diagnostic examina
tions. 
Clipped sovereignty. In the relations of the several 
states of the United States to other nations, the states 
have what is termed a clipped sovereignty. Anderson v. 
N. V. Transandine Handelmaatschappij, Sup., 28 N.Y. 
S.2d 547, 552. 
Clito Iklaytow/. In Saxon law, the son of a king or 
emperor. The next heir to the throne; the Saxon adel
ing. 
Cloere. A jail; a prison or dungeon. 
Close, v. To finish, bring to an end, conclude, terminate, 
complete, wind up; as, to "close" an account, a bargain, 
a trial, an estate, or public books, such as tax books. 
In accounting, to transfer the balance of a temporary 
or contra or adjunct account to the main account to 
which it relates. 
To shut up, so as to prevent entrance or access by any 
person; as in statutes requiring liquor establishments to 
be "closed" at certain times, which further implies an 
entire suspension of business. To go out of business. To 
bar access to. To suspend or stop operations of. 
To finalize a real estate transaction. see Closing. 
Close, n. A portion of land, as a field, inclosed as by a 
hedge, fence, or other visible inclosure, or by an invisible 
ideal boundary founded on limit of title. The interest of 
a person in any particular piece of land, whether actual
ly inclosed or not. Final price of stock at end of trading 
day on securities exchange. 
Close, adj. Closed or sealed up. Restricted to a particu
lar class. Decided by a narrow margin. 
Close copies. Copies of legal documents which might be 
written closely or loosely at pleasure; as distinguished 
from office copies. 
Close or closely held corporation. See Corporation. 
Closed court. A term sometimes used to designate the 
Common Pleas Court of England when only serjeants 
could argue cases, which practice persisted until 1883. 
Closed-end investment trust. Trust wherein only origi
nal prescribed shares can be distributed. 
Closed-end mortgage. A mortgage that does not permit 
additional borrowing pledging the same collateral nor 
prepayment. In contrast to open-end mortgage, which 
allows for the amortization of the mortgage and can be 
increased to its original mortgage amount.

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255 
Closed insurance policy. Insurance contract, the terms 
and rates of which cannot be changed. 
Closed primary. Exists where members of each politi
cal party participate in nominating candidates of that 
party, and the voters of one party are not allowed to 
nominate candidates for another party. 
Closed season. The same as "close season" (q.v .). 
Closed shop. Exists where workers must be members of 
union as condition of their employment. Miners in 
General Group v. Hix, 123 W.va. 637, 17 S.E.2d 810, 
813. This practice was made unlawful by the Taft
Hartley Act. Co ntrast Open shop. See also Right to 
work laws. 
Closed shop contract. A contract requiring employer 
to hire only union members and to discharge non-union 
members and requiring that employees, as a condition of 
employment, remain union members. Silva v. Mercier, 
Cal.App., 187 P.2d 60, 64. "Closed shop" provision in 
collective bargaining agreement requires membership in 
the contracting union before a job applicant can be 
employed and for the duration of his employment. Hig
gins v. Cardinal Mfg. Co., 188 Kan. 11, 360 P.2d 456, 461. 
Closed transaction. Term used in tax law to describe a 
taxable event which has been consummated. For exam
ple, diminution in value of goodwill of business is not a 
closed transaction so as to permit deduction of the 
diminution of value as ordinary loss. Joffre v. U. S., 
D.C.Ga., 331 F.Supp. 1177. 
Closed union. A labor union whose membership rolls 
have closed. See also Closed shop. 
Close-hauled. In admiralty law, this nautical term 
means the arrangement or trim of a vessel's sails when 
she endeavors to make progress in the nearest direction 
possible towards that point of the compass from which 
the wind blows. But a vessel may be considered as 
close-hauled, although she is not quite so near to the 
wind as she could possibly lie. 
Close jail execution. A body execution which has in
dorsed in or upon it the statement that the defendant 
ought to be confined in close jail. 
Close relatives. Kinfolk who bear a close relationship 
to another such as mother, father, brother, sister, hus
band, wife and children. 
Close rolls. Rolls containing the record of the close 
writs (literre clausre) and grants of the king, kept with 
the public records. 2 Bl.Comm. 346. See Writ. 
Close season. The season of the year or period of time 
in which the taking of particular game or fish is prohib
ited, or in which all hunting or fishing is forbidden by 
law. See also Fence-month, or defense-month. 
Close to. Near; very near; immediately adjoining. 
Close writ. See Writ. 
Closing. As regards sale of real estate, refers to the 
final steps of the transaction whereat the consideration 
is paid, mortgage is secured, deed is delivered or placed 
in escrow, etc. Such closings, which normally take 
CLOUD ON TITLE 
place at a bank or savings and loan institution, are 
regulated by the federal Real Estate Settlement Proce
dures Act (RESPA). See Closing costs; Closing state
ment. 
Closing argument. The final statements by the attor
neys to jury or court summarizing the evidence that 
they think they have established and the evidence that 
they think the other side has failed to establish. Such is 
made before judge's charge to jury. Such does not 
constitute evidence and may be limited in time by rule 
of court. 
In federal criminal cases, after the closing of evidence 
the prosecution opens the closing argument; the defense 
then replies. The prosecution is then permitted to reply 
in rebuttal. Fed.R.Crim.P. 29.1. 
Closing costs. Expenses which must be paid in addition 
to the purchase price on the sale of real estate. Closing 
costs with. respect to a debt secured by an interest in 
land include: (a) fees or premiums for title examination, 
title insurance, or similar purposes including surveys, (b) 
fees for preparation of a deed, settlement statement, or 
other documents, (c) escrows for future payments of 
taxes and insurance, (d) fees for notarizing deeds and 
other documents, (e) appraisal fees, and (f) credit reports. 
Uniform Consumer Credit Code, Section 1.301(5). The 
full disclosure of such costs is regulated by the federal 
Real Estate Settlement Procedures Act (RESP A). See 
also Closing statement. 
Closing entries. In accounting, the entries that accom
plish the transfer of balances in temporary accounts to 
the related balance sheet accounts. 
Closing estates. Winding up of estates by paying lega
cies and inheritances, taxes, and filing necessary pro
bate accounts. 
Closing statement. Written analysis of closing (i.e. final 
steps) of real estate transaction setting forth purchase 
price less deductions for such items as mortgage payoff, 
tax adjustments, etc. and adding credits to arrive at net 
amount due seller. Detailed statement is required un
der federal Real Estate Settlement Procedures Act (RES
P A). See also Closing; Closing costs; Settlement state
ment. 
See Closing argument, supra, regarding closing state
ment at trial. 
Cloture. Legislative rule or procedure whereby unrea
sonable debate (i.e. filibuster) is ended to permit vote to 
be taken. 
Cloud on title. An outstanding claim or encumbrance 
which, if valid, would affect or impair the title of the 
owner of a particular estate, and on its face has that 
effect, but can be shown by extrinsic proof to be invalid 
or inapplicable to the estate in question. Best Inv. Co. v. 
Parkhill, Tex.Civ.App., 429 S.W.2d 531, 534. A convey
ance, mortgage, judgment, tax-levy, etc., may all, in 
proper cases, constitute a cloud on title. Newpar Es
tates, Inc. v. Barilla, 161 N.Y.S.2d 950, 952. The remedy 
for removing a cloud on title is usually the means of an 
action to quiet title. See Quiet title action.

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CLOUGH 
Clough. A valley. Also an allowance for the turn of the 
scale, on buying goods wholesale by weight. 
C. L. P. Common law procedure, in reference to the 
English acts so entitled. 
C.L.V. Chartered Life Underwriter. 
Club. A voluntary, incorporated or unincorporated asso
ciation of persons for common purposes of a social, 
literary, investment, political nature, or the like. Asso
ciation of persons for promotion of some common object, 
such as literature, science, politics, good fellowship, etc., 
especially one jointly supported and meeting periodical
ly, and membership is usually conferred by ballot and 
carries privilege of exclusive use of club quarters, and 
word also applies to a building, apartment or room 
occupied by a club. 
Club-law. Rule of violence; regulation by force; the law 
of arms. 
Clue. Suggestion or piece of evidence which may or may 
not lead to solution of crime or puzzle. 
Cluster housing. Exists where houses are built close 
together with little individual yard space, but large 
common area. 
Cluster zoning. Such zoning modifies lot size and front
age requirements on certain conditions involving setting 
aside of land by the developer for parks, schools, or 
other public needs. Steel Hill Development, Inc. v. 
Town of Sanbornton, C.A.N.H., 469 F.2d 956, 958. See 
Planned unit development (PUD); Zoning. 
Clypeus, or clipeus Iklipiy;}s/. In old English law, a 
shield; metaphorically one of a noble family. Clypei 
prostrati, noble families extinct. 
C/o. Symbol meaning "care of'. 
Co. A prefix meaning with, in conjunction, joint, jointly, 
unitedly, and not separately, e.g., cotrustees, co-execu
tors, co-brokers. Also, an abbreviation for "county" and 
"company." 
Co-adjutor Ikow;}juwt;}r/. An assistant, helper, or ally; 
particularly a person appointed to assist a bishop who 
from age or infirmity is unable to perform his duty. 
Also an overseer (co-adjutor of an executor), and one 
who disseises a person of land not to his own use, but to 
that of another. 
Co-administrator. One who is a joint administrator (e.g. 
of an estate) with one or more others. 
Coadunatio Ikowrej;}neysh(iy)ow/. A uniting or combin
ing together of persons; a conspiracy. 
Co-adventurer. One who takes part with others in an 
adventure or in a venture or business undertaking at
tended with risk. Easter Oil Corporation v. Strauss, 
Tex.Civ.App., 52 S.W.2d 336, 344. See also Adventure; 
Joint venture. 
Co-agent. See Agent. 
Coal note. A species of promissory note, formerly in use 
in the port of London, containing the phrase "value 
received in coals." By the statute 3 Geo. II, c. 26, §§ 7, 
256 
8, these were to be protected and noted as inland bills of 
exchange. But this was repealed by the statute 47 Geo. 
III, sess. 2, c. 68, § 28. 
Coal notice. In Pennsylvania, every deed, agreement of 
sale, title insurance policy and other instrument with 
respect to sale or conveyance of surface land, excepting 
mortgages or quitclaim conveyances,· must include a 
statutory coal notice in each case involving a prior or 
contemporaneous severance of title to coal or right of 
surface support under any part of such surface land. 
Co-assignee. One of two or more assignees of the same 
subject-matter. 
Coast. The edge or margin of a country bounding on the 
sea. The term includes small islands and reefs natural
ly connected with the adjacent land, and rising above 
the surface of the water, but not shoals perpetually 
covered by water. This word is particularly appropriate 
to the edge of the sea, while "shore" may be used of the 
margins of inland waters. In precise modern usage, the 
term "shore" denotes line of low-water mark along 
mainland, while term "coast" denotes line of shore plus 
line where inland waters meet open sea. U. S. v. State 
of La., La., 363 U.S. 1, 121, 80 S.Ct. 961, 997, 4 L.Ed.2d 
1025, 1096. 
Coaster. A vessel plying exclusively between domestic 
ports, and usually engaged in domestic trade; not in
cluding pleasure yachts. Belden v. Chase, 150 U.S. 674, 
14 S.Ct. 264, 37 L.Ed. 1218. 
Coast Guard. The Coast Guard is responsible for enforc
ing Federal laws on the high seas and navigable waters 
of the United States and its possessions. Navigation 
and vessel inspection laws are specific responsibilities. 
Under provisions of the Federal Boating Act of 1958, 
Coast Guard boarding teams inspect small boats to in
sure compliance with required safety measures. The 
Coast Guard cooperates with other agencies in their law 
enforcement responsibilities, including enforcement of 
drug, conservation and marine environmental laws. 
Coasting trade. In maritime law, commerce and navi
gation between different places along the coast of the 
United States. Commercial intercourse between differ
ent districts in different states, different districts in 
same state, or different places in same district, on sea
coast or on navigable river. Shannon v. Streckfus 
Steamers, 279 Ky. 649, 131 S.W.2d 833, 836. 
Coast waters. Tide waters navigable from the ocean by 
sea-going craft, the term embracing all waters opening 
directly or indirectly into the ocean and navigable by 
ships coming in from the ocean of draft as great as that 
of the larger ships which traverse the open seas. The 
Britannia, 153 U.S. 130, 14 S.Ct. 795, 38 L.Ed. 660. 
Coastwise. Vessels "plying coastwise" are those en
gaged in domestic trade, or plying between port and port 
in the United States. 
Coat of arms. Heraldic ensigns, introduced by Richard I 
from the Holy Land, where they were first invented. 
Originally painted on shields of the Christian knights

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257 
who went to the Holy Land during the crusades, to 
identify them. See Insignia. 
Cocaine. A white crystaline narcotic alkaloid extracted 
from coca leaves. Used as a local anesthetic. A "con
trolled substance" as included in narcotic laws. 
Cocket. In English law, a seal belonging to the custom
house, or rather a scroll of parchment, sealed and deliv
ered by the officers of the customhouse to merchants, as 
a warrant that their merchandises are entered; likewise 
a sort of measure. 
Cockpit. In England, a name which used to be given to 
the judicial committee of the privy council, the council
room being built on the old cockpit of Whitehall Place. 
Cocksetus /koksiyt�s/. A boatman; a cockswain. 
Co-conspirator. One who engages in an illegal confed
eracy with others. See Conspiracy. 
Co-conspirator's rule. Under the "co-conspirator excep
tion" to the hearsay rule, acts and declarations of a 
co-conspirator made in furtherance of the conspiracy are 
admissible against a defendant even when they are 
made out of the defendant's presence. People v. Colum
bo, 118 Ill.App.3d 882, 74 Ill.Dec. 304, 455 N.E.2d 733, 
779. See also Wharton Rule. 
Cocotte /k�k6t/. A prostitute. 
C. O. D. "Collect on delivery." These letters import the 
carrier's liability to the consignor to collect the cost of 
the goods from the consignee, and, if not collected, to 
return the goods to the consignor. 
Code. A systematic collection, compendium or revision 
of laws, rules, or regulations (e.g., Uniform Commercial 
Code). A private or official compilation of all perma
nent laws in force consolidated and classified according 
to subject matter (e.g. United States Code). Many states 
have published official codes of all laws in force, includ
ing the common law and statutes as judicially interpret
ed, which have been compiled by code commissions and 
enacted by the legislatures (e.g. California Codes). See 
also Codification. 
Code Civil. The code which embodies the civil law of 
France. It was promulgated in 1804. When Napoleon 
became emperor, the name was changed to "Code Napo
leon," by which it is still often designated though it is 
now officially styled by its original name of "Code Civil." 
A great part of the Louisiana Civil Code is derived from 
the Code Napoleon. . 
Code de commer ce. A French code, enacted in 1807, as a 
supplement to the Code Napoleon, regulating commer
cial transactions, the laws of business, bankruptcies, and 
the jurisdiction and procedure of the courts dealing with 
these subjects. 
Code de procedure civil. That part of the Code Napoleon 
which regulates the system of courts, their organization, 
civil procedure, special and extraordinary remedies, and 
the execution of judgments. 
Code d' instruction criminelle. A French code, enacted 
in 1808, regulating criminal procedure. 
CODE OF MILITARY JUSTICE 
Code noir. The black code. A body of laws which 
formerly regulated the institution of slavery in the 
French colonies. 
Code of Justinian. The Code of Justinian (Co dex Justi
nianeus) was a collection of imperial constitutions, com
piled, by order of that emperor, by a commission, and 
promulgated A.D. 529. It comprised twelve books, and 
was the first of the four compilations of law which make 
up the Corpus Juris Civilis. This name is often met in a 
connection indicating that the entire Corpus Juris Civil
is is intended, or, sometimes, the Digest; but its use 
should be confined to the Co dex. 
Code penal. The penal or criminal code of France, 
enacted in 1810. See also Criminal law; Penal code. 
Co-defendant. More than one defendant being sued in 
the same litigation; or, more than one person charged in 
same complaint or indictment with same crime. 
Code Napoleon. See Code Civil. 
Code of criminal procedure. Body of federal or state 
law dealing with procedural aspects of trial of criminal 
cases; e.g. 18 U.S.C.A. § 3001 et seq. Such procedural 
laws are supplemented by Rules of Criminal Procedure 
and Rules of Evidence. 
Code of ethics. See Code of Professional Responsibili ty. 
Code of Federal Regulations. The Code of Federal 
Regulations (CFR) is the annual cumulation of executive 
agency regulations published in the daily Federal Reg
ister, combined with regulations issued previously that 
are still in effect. Divided into 50 titles, each represent
ing a broad subject area, individual volumes of the Code 
of Federal Regulations are revised at least once each 
calendar year and issued on a staggered quarterly basis. 
The CFR contains the general body of regulatory laws 
governing practice and procedure before federal admin
istrative agencies. 
Code of Military Justice. This Code, which is uniform
ly applicable in all its parts to the Army, the Navy, the 
Air Force, and the Coast Guard, covers both the substan
tive and the procedural law governing milit ary· justice 
and its administration in all of the armed forces of the 
United States. The Code established a system of mili
tary courts, defines offenses, authorizes punishment, 
provides broad procedural guidance, and statutory safe
guards which conform to the due process safeguards 
preserved and established by the constitution. As an 
additional safeguard for an accused person, the Code 
also provides for a system of automatic appellate review. 
A Court of Military Review is established within each 
service to review all court-martial cases where the sen
tence includes death, a punitive discharge, or confine
ment for one year or more. Appellate review in this 
court is automatic. No approved sentence of a courts
martial may be executed unless such findings and sen
tence are affirmed by a Court of Military Review. In 
addition, the Court of Military Appeals was established 
to review certain cases from all the Armed Forces. The 
latter Court consists of three civilian judges. Automatic 
review before the Court is provided for all cases in

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which the sentence, as affirmed by a Court of Military 
Review, affects a general or flag officer or extends to 
death. In addition, the Judge Advocate General of each 
service may direct that a case be reviewed by the Court. 
An accused may petition the Court for review. 10 
U.S.C.A § 801 et seq. 
Uniform Code. Many states have adopted the Uniform 
Code of Military Justice, and others have adopted acts 
substantially following the Uniform Code. 
Code of Professional Responsibility. The Model Code 
of Professional Responsibility of the American Bar Asso
ciation consisted of basic Canons of professional conduct 
for attorneys together with Ethical Considerations and 
Disciplinary Rules for each Canon covering specific at
torney conduct. Most states adopted similar profession
al responsibility codes as based on the ABA model. In 
1983 the ABA replaced the Code of Professional Respon
sibility with the Model Rules of Professional Conduct. 
See also Canon; Discipli nary rules; Model Rules of Profes
sional Conduct. 
Code pleading. See Pleadings. 
Codex. Lat. A code or collection of laws; particularly 
the Code of Justinian. Also a roll of volume, and a book 
written on paper or parchment. 
Codex Gregorianus Ik6wdeks gr;}goriyeyn;}s/. A collec
tion of imperial constitutions made by Gregorius, a 
Roman jurist of the fifth century, about the middle of 
the century. It contained the constitutions from Hadri
an down to Constantine. 
Codex Hermogenianus. Ik6wdeks h;}rm;}jiyniyeyn;}s/. 
A collection of imperial constitutions made by Hermo
genes, a jurist of the fifth century. It was nothing more 
than a supplement to the Codex Gregorianus (supra), 
containing the constitutions of Diocletian and Maxmilli
an. 
Codex Justinianeus Ik6wdeks j;}stiniyeyn(iy);}s/. A col
lection of imperial constitutions, made by a commission 
of ten persons appointed by Justinian, A.D. 528. 
Codex Repetitre Prrelectionis Ik6wdeks rep;}tishiyiy 
pr;}lekshiy6wn;}s/. The new code of Justinian; or the 
new edition of the first or old code, promulgated AD. 
534, being the one now extant. 
Codex Theodosianus Ik6wdeks Oiy;}dows(h)iyeyn;}s/. A 
code compiled by the emperor Theodosius the younger, 
AD. 438. 1 BI.Comm. 81. It was a collection of all the 
imperial constitutions then in force. It was the only 
body of civil law publicly received as authentic in the 
western part of Europe till the twelfth century, the use 
and authority of the Code of Justinian being during that 
interval confined to the East. 1 Bl.Comm. 81. 
Codex Vetus Ik6wdeks viyt;}s/. The old code. The first 
edition of the Code of Justinian; now lost. 
Codicil. A supplement or an addition to a will; it may 
explain, modify, add to, subtract from, qualify, alter, 
restrain or revoke provisions in existing will. Such does 
not purport to dispose of entire estate or to contain the 
entire will of testator, nor does it ordinarily expressly or 
258 
by necessary implication revoke in toto a prior will. In 
re Crooke Estate, 388 Pa. 125, 130 A.2d 185, 187. 
Codicillus Ikod;}sil;}s/. In the Roman law, a codicil; an 
informal and inferior kind of will, in use among the 
Romans. 
Codification I kod;}f;}keysh;}n I . The process of collecting 
and arranging systematically, usually by subject, the 
laws of a state or country, or the rules and regulations 
covering a particular area or subject of law or practice; 
e.g. United States Code; Code of Military Justice; Code 
of Federal Regulations; California Evidence Code. The 
end product may be called a code, revised code or revised 
statutes. See also Code; Compilation; Compiled statutes. 
Coemptio Ikowem(p)shiyow/. One of the modes in 
which marriage was contracted among the Romans. 
Co-emption. The act of purchasing the whole quantity 
of any commodity. 
Co-equal. To be or become equal to. To have the same 
quantity, the same value, the same degree or rank, or 
the like, with. To be commensurate with. State ex reI. 
Com'rs of Land Office v. Board of Com'rs of Nowata 
County, 166 Okl. 78, 25 P.2d 1074, 1077. 
Coerce Ikow;)rs/. Compelled to compliance; constrained 
to obedience, or submission in a vigorous or forcible 
manner. See Coercion. 
Coercion Ikow;)rsh;}n/. Compulsion; constraint; com
pelling by force or arms or threat. General Motors v. 
Blevins, D.C.Colo., 144 F.Supp. 381, 384. It may be 
actual, direct, or positive, as where physical force is used 
to compel act against one's will, or implied, legal or 
constructive, as where one party is constrained by subju
gation to other to do what his free will would refuse. As 
used in testamentary law, any pressure by which testa
tor's action is restrained against his free will in the 
execution of his testament. "Coercion" that vitiates 
confession can be mental as well as physical, and ques
tion is whether accused was deprived of his free choice 
to admit, deny, or refuse to answer. Garrity v. State of 
N. J., U.S.N.J., 385 U.S. 493, 87 S.Ct. 616, 618, 17 
L.Ed.2d 562. 
A person is guilty of criminal coercion if, with purpose 
to unlawfully restrict another's freedom of action to his 
detriment, he threatens to: (a) commit any criminal 
offense; or (b) accuse anyone of a criminal offense; or (c) 
expose any secret tending to subject any person to 
hatred, contempt or ridicule, or to impair his credit or 
business repute; or (d) take or withhold action as an 
official, or cause an official to take or withhold action. 
Model Penal Code, § 212.5. 
See also Duress; Extortion; Threat; Undue influence. 
Co-executor. One who is a joint executor of an estate 
with one or more others. See also Joint executors. 
Cofferer of the Queen's household Ik6f;}r;}r ;}v cl;} 
kwiynz haws-howld/. In English law, a principal officer 
of the royal establishment, next under the controller, 
who, in the countinghouse and elsewhere, had a special

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259 
charge and oversight of the other officers, whose wages 
he paid. 
Cogitationis prenam nemo patitur Ikoj�teyshiy6wn�s 
piyn�m niymow pred�t�r/. No one is punished for his 
thoughts. 
Cognate offense. An offense which contains some ele
ments not contained in the greater offense but which is 
related to the greater offense by fact that it shares 
several of the elements of the greater offense and is of 
the same class or category. People v. Ross, 73 Mich. 
App. 588, 252 N.W.2d 526, 528. 
Cognati Ikogneytay /. Lat. In the civil law, cognates; 
relations by the mother's side. 2 Bl.Comm. 235. Rela
tions in the line of the mother. Relations by or through 
females. 
Cognatio Ikogneysh(iy)ow/. Lat. In the civil law, cog
nation; relationship, or kindred generally. Relation
ship through females, as distinguished from agnatio, or 
relationship through males. Agnatio a patre sit, co gna
tio a matre. See Agnatio. 
In canon law, consanguinity, as distinguished from 
affinity. Consanguinity, as including affinity. 
Cognation Ikogneys h�n/. In the civil law, signifies gen
erally the kindred which exists between two persons 
who are united by ties of blood or family, or both. 
Civil cognation is that which proceeds alone from the 
ties of families, as the kindred between the adopted 
father and the adopted child. 
Mixed cognation is that which unites at the same time 
the ties of blood and family, as that which exists be
tween brothers the issue of the same lawful marriage. 
Natural cognation is that which is alone formed by ties 
of blood; such is the kindred of those who owe their 
origin to an illicit connection, either in relation to their 
ascendants or collaterals. 
Cognatus Ikogneyt �s/. Lat. In the civil law, a relation 
by the mother's side; a cognate. A relation, or kins
man, generally. 
Cognitio Ikognish(iy)ow/. In old English law, the ac
knowledgment of a fine; the certificate of such acknowl
edgment. In the Roman law, the judicial examination 
or hearing of a cause. 
Cognitiones Ikognishiy6wniyz/. Ensigns and arms, or a 
military coat painted with arms. 
Cognitionibus mittendis Ikognishiy6wn�b�s m�tend�s/. 
In English law, a writ to a justice of the common pleas, 
or other, who has power to take a fine, who, having 
taken the fine, defers to certify it, commanding him to 
certify it. Now abolished. 
Cognitive. The mental process of comprehension, judg
ment, memory and reasoning, as opposed to emotional 
and volitional processes. 
Cognitor Ik6gn�t �r/. In the Roman law, an advocate or 
defender in a private cause; one who defended the cause 
of a person who was present. 
COGNOVIT JUDGMENT 
Cognizable Ik6(g)n�z�b�l /. Capable of being tried or 
examined before a designated tribunal; within jurisdic
tion of court or power given to court to adjudicate 
controversy. Samuel Goldwyn, Inc. v. United Artists 
Corporation, C.C.A.Del., 113 F.2d 703, 707. 
In criminal law, for a group to be "cognizable" so as to 
render jury selection process which excludes such group 
unconstitutional, the group must have a definite compo
sition. Wilkins v. State, 16 Md.App. 587, 300 A.2d 411, 
415. The defendant must show that the group is defined 
and limited by some factor, that a common thread or 
basic similarity in attitude or ideas or experience runs 
through the group, and that there is a community of 
interest among members of the group such that the 
group's interests cannot be adequately represented if the 
group is excluded from the jury selection process. U.S. 
v. Gruberg, D.C.N.Y., 493 F.Supp. 234, 245. 
Cognizance Ik6(g)n�z�n(t)sl. Jurisdiction, or the exer
cise of jurisdiction, or power to try and determine 
causes; judicial examination of a matter, or power and 
authority to make it. Judicial notice or knowledge; the 
judicial hearing of a cause; acknowledgment; confes
sion; recognition. 
Claim of cogn izance or of con usance. See Claim of cogni
zance or of conusance. 
Judicial cogn izance. See Judicial. 
Cognizee Ikogn�ziy/. The party to whom a fine was 
levied. 2 Bl.Comm. 351. 
Cognizor Ik6gn�z �r/. In old conveyancing, the party 
levying a fine. 2 Bl.Comm. 350, 351. 
Cognomen Ikogn6wm�n/. In English law, a surname. 
A name added to the nomen proper, or name of the 
individual; a name descriptive of the family. 
In Roman law, a man's family name. 
The first name (prrenomen) was the proper name of 
the individual; the second (nomen) indicated the gens or 
tribe to which he belonged; while the third (co gnomen) 
denoted his family or house. The agnomen was added 
on account of some particular event, as a further distinc
tion. 
Cognomen majorum est ex sanguine tractum, hoc in
trinsecum est; agnomen extrinsecum ab eventu 
Ikogn6wm�n m�j6r�m est eks sreIJgw�niy trrekt�m, h6k 
intrinz�k�m est; regn6wm�n ekstrinz�k�m, eks 
�vent(y)uw/. The cognomen is derived from the blood of 
ancestors, and is intrinsic; an agnomen arises from an 
event, and is extrinsic. 
Cognovit actionem Ikogn6wv�t rekshiy6wn�m/. (He 
has confessed the action). A defendant's written confes
sion of action against him. It is usually upon condition; 
is supposed to be given in court; and impliedly autho
rizes plaintiffs attorney to sign judgment and issue 
execution. 
Cognovit judgment Ikogn6wv�tI. Confession of judg
ment by debtor. Written authority of debtor and his 
direction for entry of judgment against him in the event 
he shall default in payment. Such provision in a debt

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instrument or agreement permits the creditor or his 
attorney on default to appear in court and confers 
judgment against the debtor. Such agreements are pro
hibited, or greatly restricted, in many states; though, 
where permitted, the constitutionality of such has been 
upheld. D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 
174, 92 S.Ct. 775, 31 L.Ed.2d 124. See Cognovit note; 
Judgment (Co nfession of judgment). 
Cognovit note. An extraordinary note which authorizes 
an attorney to confess judgment against person or per
sons signing it. It is written authority of a debtor and a 
direction by him for entry of a judgment against him if 
obligation set forth in note is not paid when due. Such 
judgment may be taken by any person holding the note, 
which cuts off every defense which maker of note may 
otherwise have and it likewise cuts off all rights of 
appeal from any judgment taken on it. Jones v. John 
Hancock Mut. Life Ins. Co., D.C.Mich., 289 F.Supp. 930, 
935. See Cognovit judgment; Judgment (Confession of 
judgment). 
C.O.G.S.A. See Carriage of Goods by Sea Act. 
Cohabitation. To live together as husband and wife. 
The mutual assumption of those marital rights, duties 
and obligations which are usually manifested by mar
ried people, including but not necessarily dependent on 
sexual relations. Boyd v. Boyd, 228 Cal.App. 374, 39 
Cal.Rptr. 400, 404. See also Notorious cohabitation; Pali
mony. 
Cohabitation agreement. Contract between a man and 
a woman who are living together in contemplation of 
sexual relations and out of wedlock, relating to the 
property and financial relations of the parties. MN.ST. 
§§ 513.075, 513.076. 
Cohreredes una persona censentur, propter unitatem 
juris quod habent Ikowhir�diyz yuwn� p�rsown� 
s;ms€mt�r, propt�r yuwn�teyt�m jur�s kwod heyb�ntl. 
Co-heirs are deemed as one person, on account of the 
unity of right· which they possess. 
Cohan Rule. Taxpayer is required to substantiate by 
accurate records or by sufficient evidence his claim for 
deduction for travel, entertainment and business gifts. 
I.R.C. § 274(d) (1962 Act); Cohan v. Commissioner, C.C. 
A.N.Y., 39 F.2d 540. Where part of expenditures by 
taxpayers that are of deductible nature as ordinary and 
necessary business expense are unidentifiable, 50% of 
expenditures are allowed as deduction. Poletti v. C. I. 
R., C.A.Mo., 351 F.2d 345, 349. 
Co-heir. One of several to whom an inheritance de
scends. 
Co-heiress. A joint heiress. A woman who has an equal 
share of an inheritance with another woman. 
Cohort analysis. A method used in employment dis
crimination suits to test for race discrimination whereby 
all employees who start together at the same level are 
surveyed over the course of an observation period and 
their comparative progress in salary and promotion is 
evaluated. Segar v. Smith, C.A., 738 F.2d 1249, 1285, 
238 U .S.App.D.C. 103. 
260 
Coif Ikoyf/ . A title given to serjeants at law, who are 
called "serjeants of the coif," from the coif they wear on 
their heads. The use of this coif at first was to cover the 
clerical tonsure, many of the practicing serjeants being 
clergymen who had abandoned their profession. It was 
a thin linen cover, gathered together in the form of a 
skull or helmet; the material being afterwards changed 
into white silk, and the form eventually into the black 
patch at the top of the forensic wig, which is now the 
distinguishing mark of the degree of serjeant at law. 
Order of the coif Honorary legal fraternity made up of 
law students with high standing in law school class. 
Coin, v. To fashion pieces of metal into a prescribed 
shape, weight, and degree of fineness, and stamp them 
with prescribed devices, by authority of government, in 
order that they may circulate as money. Legal Tender 
Cases, 79 U.S. 457, 12 Wall. 457, 20 L.Ed. 287; Thayer v. 
Hedges, 22 Ind. 282. To invent words or phrases. 
Coin, n. Pieces of gold, silver, or other metal, fashioned 
into a prescribed shape, weight, and degree of fineness, 
and stamped, by authority of government, with certain 
marks and devices, and put into circulation as money at 
a fixed value. Metal money. 
Coinage. The process or the function of coining metallic 
money; also the great mass of metallic money in circula
tion. 
Coinage clause. Provision in U.S. Constitution granting 
to Congress the power to coin money, Art. I, § 8, par. 5. 
Coinsurance. A relative division of risk between the 
insurer and the insured, dependent upon the relative 
amount of the policy and the actual value of the proper
ty insured, and taking effect only when the actual loss is 
partial and less than the amount of the policy; the 
insurer being liable to the extent of the policy for a loss 
equal to or in excess of that amount. Insurance policies 
that protect against hazards such as fire or water dam
age often specify that the owner of the property may not 
collect the full amount of insurance for a loss unless the 
insurance policy covers at least some specified percent
age, usually about 80 percent, of the replacement cost of 
the property. 
Coinsurance clause. Provision in insurance policy re
quiring property owner to carry insurance up to an 
amount determined in accordance with the provisions of 
the policy. 
Coinsurer. Insurer who shares losses sustained under 
policy. 
Coitus. Sexual intercourse; carnal copulation; coition. 
Co judices Ikowjuwd�siyz/. Lat. In old English law, 
associate judges having equality of power with others. 
Coke's institutes. See Institutes. 
COLA. Cost of Living Adjustment. See Cost of living 
clause. 
Cold blood. Used in common parlance to designate a 
willful, deliberate, and premeditated homicide. See also 
Cool state of blood.

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Cold water ordeal. The trial which was anciently used 
for the common sort of people, who, having a cord tied 
about them under their arms, were cast into a river; if 
they sank to the bottom until they were drawn up, 
which was in a very short time, then were they held 
guiltless; but such as did remain upon the water were 
held culpable, being, as they said, of the water rejected 
and kept up. 
Colibertus IkowbMr t;}s/. In feudal law, one who, hold
ing in free socage, was obliged to do certain services for 
the lord. A middle class of tenants between servile and 
free, who held their freedom of tenure on condition of 
performing certain services. Said to be the same as the 
conditionales. 
Collaboration. The act of working together in a joint 
project; commonly used in connection with treasonably 
cooperative efforts with the enemy. See also Conspiracy. 
Collapsible corporation. A corporation formed or 
availed of principally for the manufacture, construction, 
or production of property, for the purchase of property, 
or for the holding of stock in a corporation so formed or 
availed of, with a view to the sale or exchange of stock 
by its shareholders (whether in liquidation or otherwise), 
or a distribution to its shareholders, before the realiza
tion by the corporation of a substantial part of the 
taxable income to be derived from such property, and 
the realization by such shareholders of gain attributable 
to such property. I.R.C. §§ 337(c), 341(b)(1). These 
I.R.C. provisions prevent the prearranged use of a corpo
ration to convert ordinary income into capital gain. 
Collapsible partnersbip. A partnership formed with 
the intention to dissolve before any income is realized; 
however, the amount of money or the fair market value 
of any property received by a transferror partner in 
exchange for all or a part of his interest in the partner
ship attributable to unrealized receivables of the part
nership, or inventory items of the partnership which 
have appreciated substantially in value shall be con
sidered as an amount realized from the sale or exchange 
of property other than a capital asset. I.R.C. § 751(a). 
Collateral, n. Ik;}lcet;}r;}l/. Property which is pledged as 
security for the satisfaction of a debt. Collateral is 
additional security for performance of principal obli
gation, or that which is by the side, and not in direct 
line. Shaffer v. Davidson, Wyo., 445 P.2d 13, 16. Prop
erty subject to a security interest; includes accounts, 
contract rights, and chattel paper which have been sold. 
u.c.c. § 9-105(c). See also Colla teral security. 
Collateral, adj. By the side; at the side; attached upon 
the side. Not lineal, but upon a parallel or diverging 
line. Additional or auxiliary; supplementary; co-oper
ating; accompanying as a secondary fact, or acting as a 
secondary agent. Related to, complementary; accompa
nying as a co-ordinate. As to collateral Consanguinity; 
Descent; Estoppel; Guaranty; Issue; Limitation; Negli
gence; Power; Proceeding; and Warranty, see those ti
tles. See also Pledge; Security. 
COLLATERAL ESTOPPEL DOCTRINE 
Collateral act. Formerly, name given to any act (except 
the payment of money) for the performance of which a 
bond, recognizance, etc., was given as security. 
Collateral actions. Any action which is subsidiary to 
another action. See Colla teral attack. 
Collateral ancestors. A phrase sometimes used to des
ignate uncles and aunts, and other collateral ancestors, 
who are not strictly ancestors. 
Collateral assignment. Assignment of property as col
lateral security for loans. 
Collateral assurance. That which is made over and 
above the principal assurance or deed itself. 
Collateral attack. With respect to a judicial proceeding, 
an attempt to avoid, defeat, or evade it, or deny its force 
and effect, in some incidental proceeding not provided 
by law for the express purpose of attacking it. May v. 
Casker, 188 Ok!. 448, 11 0 P.2d 287, 289. An attack on a 
judgment in any manner other than by action or pro
ceeding, whose very purpose is to impeach or overturn 
the judgment; or, stated affirmatively, a collateral at
tack on a judgment is an attack made by or in an action 
or proceeding that has an independent purpose other 
than impeaching or overturning the judgment. Travis 
v. Travis' Estate, 79 Wyo. 329, 334 P.2d 508, 510. Com
pare Direct attack. 
Collateral consanguinity. Persons are related collat
erally when they have a common ancestor. See also 
Colla teral heir. 
Collateral contract. A contract made prior to or con
temporaneous with another contract and if oral and not 
inconsistent with written contract is admissible within 
exception to parol evidence rule. High Knobb Inc. v. 
Allen, 205 Va. 503, 138 S.E.2d 49. 
Collateral covenant. A covenant in a deed or other 
sealed instrument which does not pertain to the granted 
premises. 
Collateral estoppel doctrine. Prior judgment between 
same parties on different cause of action is an estoppel 
as to those matters in issue or points controverted, on 
determination of which finding or verdict was rendered. 
E. I. duPont de Nemours & Co. v. Union Carbide Corp., 
D.C.Ill., 250 F.Supp. 816, 819. When an issue of ulti
mate fact has been determined by a valid judgment, that 
issue cannot be again litigated between the same parties 
in future litigation. City of St. Joseph v. Johnson, 
Mo.App., 539 S.W.2d 784, 785. 
As a bar to relitigating an issue which has already 
been tried between the same parties or their privies, it 
must be pleaded affirmatively. Fed.R. Civil P. 8(c). It is 
applicable to criminal cases. Ashe v. Swenson, 397 U.S. 
436, 443-444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469. 
Offensive and defensive collateral estoppel. "Offensive 
collateral estoppel" is used by plaintiff to prevent relit
igation of issues previously lost against another plaintiff 
by a defendant, in contrast to "defensive collateral es
toppel" which prevents relitigation by plaintiff of issues

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previously lost against another defendant. Collins v. 
Seaboard Coastline R. Co., C.A.Ga., 681 F.2d 1333, 1334. 
See also Adminis trative estoppel; Defensive colla teral es
toppel; Direct estoppel; Issue preclusion; Judicial estop
pel; Res (Res judicata); Verdict, estoppel by. 
Collateral facts. Such as are outside the controversy, or 
are not directly connected with the principal matter or 
issue in dispute. 
Collateral fraud. See Fraud. 
Collateral heir. One who is not of the direct line of 
deceased, but comes from a collateral line, as a brother, 
sister, an uncle, an aunt, a nephew, a niece, or a cousin 
of deceased. Ferraro v. Augustine, 45 Ill.App.2d 295, 
196 N.E.2d 16, 19. 
Collateral impeachment. See Colla teral attack. 
Collateral inheritance tax. A tax levied upon the 
collateral devolution of property by will or under the 
intestate law. 
Collateralis et socii /k�lret�reyl�s et sows(h)iyay/. The 
ancient title of masters in chancery. 
Collateral issues. Question or issues which are not 
directly involved in the matter. 
Collateral kinsmen. Those who descend from one and 
the same common ancestor, but not from one another. 
Collateral line. See Descent. 
Collateral loan. Loan secured by pledge of specific 
property. 
Collateral matter. A "matter" is "collateral" to the 
principal issues being tried and therefore unavailable to 
purposes of impeachment if the matter, as to which 
error is predicated, could not have been shown in evi
dence for any purpose independently of the contra
diction. State v. Oswalt, 62 Wash.2d 118, 381 P.2d 617, 
618. 
Collateral mortgage. A mortgage designed, not directly 
to secure an existing debt, but to secure a mortgage note 
pledged as collateral security for debt or succession of 
debts. McLendon v. Brewster, La.App., 286 So.2d 513, 
516. 
Collateral negligence. See Negligence. 
Collateral note. Loan secured by pledge of specific 
property. 
Collateral order doctrine. Doctrine which allows ap
peal from an interlocutory order which conclusively 
determines issue completely separate from merits of 
action, and which cannot be given effective review on 
appeal from subsequent final judgment; such order is, 
for purposes of appellate jurisdiction, a "final order." 
Clemence v. Clemence, 8 Kan.App.2d 377, 658 P.2d 368. 
Collateral promise. A promise ancillary or superadded 
to the primary (principal) promise of another; the other 
remaining primarily liable. One in which the promisor 
is merely acting as surety; the promisor receives no 
benefit by way of promise and the original debtor re-
262 
mains liable on the debt. A collateral promise is within 
the statute of frauds and must be in writing. Dolin v. 
Colonial Meadows, Ltd., D.C.W.V., 635 F.Supp. 786, 788. 
Collateral relatives. Next of kin who are not in the 
direct line of inheritance, such as a cousin. See also 
Colla teral heir. 
Collateral security. A security given in addition to the 
direct security, and subordinate to it, intended to guar
anty its validity or convertibility or insure its perform
ance; so that, if the direct security fails, the creditor 
may fall back upon the collateral security. Concurrent 
security for another debt, whether antecedent or newly 
created and is subsidiary to the principal debt running 
parallel with and collateral to the debt. Shaffer v. 
Davidson, Wyo., 445 P.2d 13, 16. 
Collateral source rule. Under this rule, if an injured 
person receives compensation for his injuries from a 
source wholly independent of the tort-feasor, the pay
ment should not be deducted from the damages which 
he would otherwise collect from the tort-feasor. Kirt
land & Packard v. Superior Court for County of Los 
Angeles, 59 Cal.App.3d 140, 131 Cal.Rptr. 418, 421. In 
other words, a defendant tortfeasor may not benefit 
from the fact that the plaintiff has received money from 
other sources as a result of the defendant's tort, e.g. 
sickness and health insurance. 
Collateral trust bonds. Bonds of one corporation se
cured by its holdings of stocks, bonds, and/or notes of 
another corporation. 
Collateral warranty. Generally applicable to real es
tate transactions in which a stranger warrants title and 
hence his warranty runs only to the covenantee, and not 
with the land. 
Collatio bonorum /k�leysh(iy)ow b�nor�m/. Lat. In 
the civil law, the obligation on successors to an inheri
tance to return to the common inheritance gifts received 
from the ancestor during his lifetime. A joining togeth
er or contribution of goods into a common . fund. This 
occurs where a portion of money, advanced by the father 
to a son or daughter, is brought into hotchpo t, in order 
to have an equal distributory share of his personal 
estate at his death. See Collation. 
Collation /k�leysh�n/. The comparison of a copy with 
its original to ascertain its correctness; or the report of 
the officer who made the comparison. The bringing into 
the estate of an intestate an estimate of the value of 
advancements made by the intestate to his or her chil
dren in order that the whole may be divided in accord
ance with the statute of descents. It is synonymous 
with "hotchpot." 
In the civil law, the collation of goods is the supposed 
or real return to the mass of the succession which an 
heir makes of property which he received in advance of 
his share or otherwise, in order that such property may 
be divided together with the other effects of the succes
sion. The fundamental basis of doctrine is legal pre
sumption that ancestor intended absolute equality 
among his descendants in final distribution of his prop-

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263 
erty, that donation by him during his lifetime to any one 
of them was merely advancement d'hoirie or advance on 
donee's hereditary share to establish him in life or for 
some other useful purpose, and that ancestor intended 
to reestablish equality among his descendants in final 
partition of his estate. 
Collatione facta uni post mortem alterius 
/k;}leyshiyowniy frekt;} yuwnay powst mort;}m o1t;}ray;}s/. 
A writ directed to justices of the common pleas, com
manding them to issue their writ to the bishop, for the 
admission of a clerk in the place of another presented by 
the crown, where there had been a demise of the crown 
during a suit; for judgment once passed for the king's 
clerk, and he dying before admittance, the king may 
bestow his presentation on another. 
Collatione heremitagii /k;}leyshiyowniy h�r(;})m;}teyji
yay/. In old English law, a writ whereby the king 
conferred the keeping of an hermitage upon a clerk. 
Collation of seals. When upon the same label one seal 
was set on the back or reverse of the other. Comparison 
of seals. 
Collation to a benefice /k;}leysh;}n tuw ;} ben;}f;}s/. In 
ecclesiastical law, this occurs where the bishop and 
patron are one and the same person, in which case the 
bishop cannot present the clergyman to himself, but 
does, by the one act of collation or conferring the benef
ice, the whole that is done in common cases both by 
presentation and institution. 2 Bl.Comm. 22. 
Collatio signorum /k;}leysh(iy)ow signor;}m/. In old 
English law, a comparison of marks or seals. A mode of 
testing the genuineness of a seal, by comparing it with 
another known to be genuine. 
Collect. To gather together; to bring scattered things 
(assets, accounts, articles of property) into one mass or 
fund; to assemble. To receive payment. 
To collect a debt or claim is to obtain payment or 
liquidation of it, either by personal solicitation or legal 
proceedings. 
Collectible. Debts, obligations, demands, liabilities that 
one may be made to pay by means of legal process. 
Rare or antique objects, commonly collected for invest
ment. 
Collecting bank. In the check collection process, any 
bank handling the item for collection except the payor 
bank. U.C.C. § 4-105(d). 
Collection. Process through which an item passes in a 
payor bank. Uniform Commercial Code, Article 4. See 
also Collection indorsement. 
Collection indorsement. An indorsement on an item 
that is restrictive because it signifies a purpose of depos
it or collection by including words such as "for collec
tion", "for deposit", "pay any bank", or like terms. 
U.C.C. § 3-205(c). See also For collection. 
Collection item. An item that a bank takes for its 
customer's account for which credit is not given until 
COLLECTIVE WORK 
payment for the item is actually received. A documen
tary draft . is ordinarily treated as a collection item. 
Collection of illegal fees. Collection by public official 
of fees in excess of those fixed by law for certain servic
es. See Extortion. 
Collective bargaining. As contemplated by National 
Labor Relations Act, is a procedure looking toward mak
ing of collective agreements between employer and ac
credited representative of union employees concerning 
wages, hours, and other conditions of employment, and 
requires that parties deal with each other with open and 
fair minds and sincerely endeavor to overcome obstacles 
existing between them to the end that employment 
relations may be stabilized and obstruction to free flow 
of commerce prevented. National Labor Relations Act 
§ 8(5), 29 U.S.C.A. § 158(5). Rapid Roller Co. v. National 
Labor Relations Board, C.C.A.7, 126 F.2d 452, 460. Ne
gotiation between an employer and organized employees 
as distinguished from individuals, for the purpose of 
determining by joint agreement the conditions of em
ployment. See also Area bargaining; Labor dispute; Six
ty-day notice. 
Collective bargaining agreement. Agreement between 
an employer and a labor union which regulates terms 
and conditions of employment. The joint and several 
contract of members of union made by officers of union 
as their agents establishing, in a general way, the recip
rocal rights and responsibilities of employer, employees 
collectively, and union. Such is enforceable by and 
against union in matters which affect all members alike 
or large classes of members, particularly those who are 
employees of other party to contract. Bogue Elec. Co. v. 
Board of Review of Division of Employment Sec. of Dept. 
of Labor and Industry, 21 N.J. 431, 122 A.2d 615, 618. 
See also Coll ective labor agreement; Trade agreement. 
Collective bargaining unit. All of the employees of a 
single employer unless the employees of a particular 
department or division have voted otherwise. Re Inter
national Ass'n of Machinists, 249 Wis. 112, 23 N.W.2d 
489. 
Collective labor agreement. Also called "trade agree
ment". Bargaining agreement as to wages and condi
tions of work entered into by groups of employees, 
usually organized into a brotherhood or union on one 
side and groups of employers or corporations on the 
other side. See also Colle ctive bargaining agreement. 
Collective mark. The term "collective mark" means a 
trademark or service mark-{1) used by the members of 
a cooperative, an association, or other collective group or 
organization, or (2) which such cooperative, association, 
or other collective group or organization has a bona fide 
intention to use in commerce and applies to register on 
the principal register established by the Trademark Act, 
and includes marks indicating membership in a union, 
an association, or other organization. 15 U.S.C.A. 
§ 1127. 
Collective work. In copyright law, "collective work" is 
a work, such as a periodical issue, anthology, or ency-

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COLLECTIVE WORK 
clopedia, in which a number of contributions, constitut
ing separate and independent works in themselves, are 
assembled into a collective whole. Copyright Act, 17 
U.S.C.A. § 101. See also Compilation. 
Collect on delivery. See C. O. D. 
Collector. One appointed or authorized to receive taxes 
or other impositions, as: collector of taxes, collector of 
customs, etc. A person appointed by a private person to 
collect the debts due him. 
Collector of decedent's estate. A person temporarily 
appointed by the probate court to collect rents, assets, 
interest, bills receivable, etc., of a decedent's estate, and 
act for the estate in all financial matters requiring 
immediate settlement. Such collector is usually ap
pointed when there is protracted litigation as to the 
probate of the will, or as to the person to take out 
administration, and his duties cease as soon as an execu
tor or administrator is qualified. 
Collega /k�liyg�/. In the civil law, one invested with 
joint authority. A colleague; an associate. 
Collegatarius /k�leg�teriy�s/. Lat. In the civil law, a 
co-legatee. 
Collegatary /ko(w)l�geyt�riy/. A co-legatee; a person 
who has a legacy left to him in common with other 
persons. 
College. An organized assembly or collection of persons, 
established by law, and empowered to co-operate for the 
performance of some special function or for the pro
motion of some common object, which may be education
al, political, ecclesiastical, or scientific in its character. 
The assemblage of the cardinals at Rome is called a 
"college." So, in the United States, the body of presi
dential electors is called the "electoral college" (q. v.). 
In the most common use of the word, it designates an 
institution of learning (usually incorporated) which of
fers instruction in the liberal arts and humanities and 
in scientific branches, but not in the technical arts or 
those studies preparatory to admission to the profes
sions. Also applied to all kinds of institutions from 
universities, or departments thereof, to "business col
leges," "barber colleges," etc. that have degree-confer
ring power. 
In England, it is a civil corporation, company or 
society of men, having certain privileges, and endowed 
with certain revenues, founded by royal license. An 
assemblage of several of these colleges is called a "univ
ersity." 
Collegia /k�liyjiy�/. In the civil law, the guild of a 
trade. 
Collegialiter /k�liyjiyeyl�t�r/. In a corporate capacity. 
Collegiate church. In English ecclesiastical law, a 
church built and endowed for a society or body corporate 
of a dean or other president, and secular priests, as 
canons or prebendaries in the said church; such as the 
churches of Westminster, Windsor, and others, which 
are independent of a cathedral. 
264 
Collegium /b liyj(iy)�m/. Lat. In the civil law, a word 
having various meanings; e.g., an assembly, society, or 
company; a body of bishops; an army; a class of men. 
But the principal idea of the word was that of an 
association of individuals of the same rank and station, 
or united for the pursuit of some business or enterprise. 
Sometimes, a corporation, as in the maxim "tres faciunt 
collegium" (1 Bl.Comm. 469), though the more usual and 
proper designation of a corporation was "universitas." 
Collegium ammiralitatis /bliyj(iy)�m rem�rrel�teyt�s/. 
The college or society of the admiralty. 
Collegium est societas plurium corporum simul habi
tantium /k�liyj(iy)�m est s�say�tres pluriy�m k6rp�r�m 
sim�l hreb�trensh(iy)�m/. A college is a society of sever
al persons dwelling together. 
Collegium illicitum /k�liyjiy�m �lis�t�m/. One which 
abused its right, or assembled for any other purpose 
than that expressed in its charter. 
Collegium licitum /k�liyjiy�m lis�t�m/. An assemblage 
or society of men united for some useful purpose or 
business, with power to act like a single individual. 
Collide. To strike or dash against; to come into colli
sion; to clash. Collins v. Leahy, Mo.App., 102 S.W.2d 
801, 809. See Collision. 
Colligendum bona defuncti /kol�jend�m b6wn� 
d�f�1Jktay /. See Ad colligendum, etc. 
Collision. Striking together of two objects, one of which 
may be stationary. Act or instance of colliding; state of 
having collided. The term implies an impact or sudden 
contact of a moving body with an obstruction in its line 
of motion, whether both bodies are in motion or one 
stationary and the other, no matter which, in motion. 
Collistrigium /kol�strijiy�m/. The pillory. 
Collocation /kol�keysh�n/. In French law, the arrange
ment or marshaling of the creditors of an estate in the 
order in which they are to be paid according to law. 
Colloquium /k�16wkwiy�m/. One of the usual parts of 
the declaration in an action for slander. It is a general 
averment that the words complained of were spoken "of 
and concerning the plaintiff', or concerning the extrin
sic matters alleged in the inducement, and its office is to 
connect the whole publication with the previous state
ment. An averment in the complaint that the words in 
question are spoken of or concerning some usage, report, 
or fact which gives to words otherwise indifferent the 
peculiar defamatory meaning assigned to them. 
Collusion /k�l(y)uwzh�n/. An agreement between two 
or more persons to defraud a person of his rights by the 
forms of law, or to obtain an object forbidden by law. It 
implies the existence of fraud of some kind, the employ
ment of fraudulent means, or of lawful means for the 
accomplishment of an unlawful purpose. Tomiyosu v. 
Golden, 81 Nev. 140, 400 P.2d 415, 417. A secret combi
nation, conspiracy, or concert of action between two or 
more persons for fraudulent or deceitful purpose. See 
Conspiracy.

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265 
In divorce proceedings, collusion is an agreement be
tween husband and wife that one of them shall commit, 
or appear to have committed, or be represented in court 
as having committed, acts constituting a cause of di
vorce, for the purpose of enabling the other to obtain a 
divorce. But it also means connivance or conspiracy in 
initiating or prosecuting the suit, as where there is a 
compact for mutual aid in carrying it through to a 
decree. Bizik v. Bizik, Ind.App., 111 N.E.2d 823, 828. 
With the enactment of "no-fault" divorce statutes by 
most states, agreements or acts of collusion are no 
longer necessary. 
Collusive action. An action not founded upon an actual 
controversy between the parties to it, but brought for 
purpose of securing a determination of a. point of law for 
the gratification of curiosity or to settle rights of third 
persons not parties. Such actions will not be enter
tained for the courts will only decide "cases or contro
versies". City and County of San Francisco v. Boyd, 22 
Cal.2d 685, 140 P.2d 666, 669, 670. See also Collusion. 
Collusive joinder. See Joinder. 
Collybista I kol;}bist;} I . In the civil law, a money-chang
er; a dealer in money. 
Collybum Ik6bb;}m/. In the civil law, exchange. 
Colne. In Saxon and old English law, an account or 
calculation. 
Colonists. Persons who have emigrated from their 
mother country to settle in another place but who re
main loyal to mother country. 
Colonus Ik;}16wn;}s/. In old European law, a husband
man; an inferior tenant employed in cultivating the 
lord's land. A term of Roman origin, corresponding 
with the Saxon ceorl. 
Colony. A dependent political community, consisting of 
a number of citizens of the same country who have 
emigrated therefrom to people another, and remain sub
ject to the mother country. Territory attached to anoth
er nation, known as the mother country, with political 
and economic ties; e.g. possessions or dependencies of 
the British Crown (e.g. thirteen original colonies of Unit
ed States). 
Colonial charter. A document issued by a colonial 
government which permits operation of a business or 
school or college, e.g. charters granted by England to 
institutions or business in this country before War of 
Independence. 
Col onial laws. The body of law in force in the thirteen 
original colonies before the Declaration of Independence. 
Color. An appearance, semblance, or simulacrum, as 
distinguished from that which is real. A prima facie or 
apparent right. Hence, a deceptive appearance; a plau
sible, assumed exterior, concealing a lack of reality; a 
disguise or pretext. See also Colorable. 
In pleading, ground of action admitted to subsist in 
the opposite party by the pleading of one of the parties 
to an action, which is so set out as to be apparently 
valid, but which is in reality legally insufficient. A 
COLOR OF LAW 
term of the ancient rhetoricians, and early adopted into 
the language of pleading. It was an apparent or prima 
facie right; and the meaning of the rule that pleadings 
in confession and avoidance should give color was that 
they should confess the matter adversely alleged, to 
such an extent, at least, as to admit some apparent right 
in the opposite party, which required to the encountered 
and avoided by the allegation of new matter. Color was 
either express, i.e. inserted in the pleading, or implied, 
which was naturally inherent in the structure of the 
pleading. Wheeler v. Nickels, 168 Or. 604, 126 P.2d 32, 
36. 
Colorable. That which is in appearance only, and not in 
reality, what it purports to be, hence counterfeit, 
feigned, having the appearance of truth. Windle v. 
Flinn, 196 Or. 654, 251 P.2d 136, 146. 
Colorable alteration. One which makes no real or 
substantial change, but is introduced only as a subter
fuge or means of evading the patent or copyright law. 
Colorable cause or invocation of jurisdiction. With 
reference to actions for malicious prosecution, a "color
able cause or invocation of jurisdiction" means that a 
person, apparently qualified, has appeared before a jus
tice and made a complaint under oath and in writing, 
stating some facts which in connection with other facts 
constitute a criminal offense or bear a similitude there
to. 
Colorable claim. In bankruptcy law, a claim made by 
one holding the property as an agent or bailee of the 
bankrupt; a claim in which as a matter of law, there is 
no adverseness. See also Color. 
Colorable imitation. In the law of trademarks, this 
phrase denotes such a close or ingenious limitation as to 
be calculated to deceive ordinary persons. 
Colorable transaction. One presenting an appearance 
which does not correspond with the reality, and, ordi
narily, an appearance intended to conceal or to deceive. 
Colored. By common usage in America, this term, in 
such phrases as "colored persons," "the colored race," 
"colored men," and the like, is used to designate negroes 
or persons of the African race, including all persons of 
mixed blood descended from negro ancestry. 
Colore officii Ik;}16riy ;}fishiyay I. Lat. By color of 
office. Of ficer's acts unauthorized by officer's position, 
though done in form that purports that acts are done by 
reason of official duty and by virtue of office. See also 
Color of office. 
Color of authority. That semblance or presumption of 
authority sustaining the acts of a public officer which is 
derived from his apparent title to the office or from a 
writ or other process in his hands apparently valid and 
regular. See Color of law; Color of office. 
Color of law. The appearance or semblance, without 
the substance, of legal right. Misuse of power, possessed 
by virtue of state law and made possible only because 
wrongdoer is clothed with authority of state, is action

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COLOR OF LAW 
taken under "color of state law." Atkins v. Lanning, 
D.C.Okl., 415 F.Supp. 186, 188. 
When used in the context of federal civil rights stat
utes or criminal law, the term is synonymous with the 
concept of "state action" under the Fourteenth Amend
ment, Timson v. Weiner, D.C.Ohio, 395 F.Supp. 1344, 
1347; and means pretense of law and includes actions of 
officers who undertake to perform their official duties, 
Thompson v. Baker, D.C.Ark., 133 F.Supp. 247; 42 U.S. 
C.A. § 1983. See Tort (Co nstitutional tort ). 
Action taken by private individuals may be "under 
color of state law" for purposes of 42 U.S.C.A. § 1983 
governing deprivation of civil rights when significant 
state involvement attaches to action. Wagner v. Metro
politan Nashville Airport Authority, C.A.Tenn., 772 F.2d 
227, 229. 
Acts "under color of any law" of a State include not 
only acts done by State officials within the bounds or 
limits of their lawful authority, but also acts done with
out and beyond the bounds of their lawful authority; 
provided that, in order for unlawful acts of an official to 
be done "under color of any law", the unlawful acts 
must be done while such official is purporting or pre
tending to act in the performance of his official duties; 
that is to say, the unlawful acts must consist in an abuse 
or misuse of power which is possessed by the official 
only because he is an of ficial; and the unlawful acts 
must be of such a nature or character, and be committed 
under such circumstances, that they would not have 
occurred but for the fact that the person committing 
them was an official then and there exercising his 
official powers outside the bounds of lawful authority. 
42 U.S.C.A. § 1983. 
Color of office. Pretense of official right to do act made 
by one who has no such right. Kiker v. Pinson, 120 
Ga.App. 784, 172 S.E.2d 333, 334. An act under color of 
office is an act of an officer who claims authority to do 
the act by reason of his office when the office does not 
confer on him any such authority. Maryland Cas. Co. v. 
McCormack, Ky., 488 S.W.2d 347, 352. See also Color of 
law. 
Color of state law. See Color of law. 
Color of title. The appearance, semblance, or simul ac
rum of title. Also termed "apparent title." Any fact, 
extraneous to the act or mere will of the claimant, 
which has the appearance, on its face, of supporting his 
claim of a present title to land, but which, for some 
defect, in reality falls short of establishing it. Howth v. 
Farrar, C.C.A.Tex., 94 F.2d 654, 658. That which is a 
semblance or appearance of title, but is not title in fact 
or in law. McCoy v. Lowrie, 42 Wash.2d 24, 253 P.2d 
415, 418. Any instrument having a grantor and grant
ee, and containing a description of the lands intended to 
be conveyed, and apt words for their conveyance, gives 
color of title to the lands described. Such an instrument 
purports to be a conveyance of the title, and because it 
does not, for some reason, have that effect, it passes only 
color or the semblance of a title. 
266 
Color of Title Act. Federal law which gives Secretary 
of Interior the right to issue a patent for land, exclusive 
of minerals, to one who has occupied it adversely and 
under color of right for period of time for a nominal 
amount of money. 43 U.S.C.A. §§ 1068-1068B. 
Com. Abbreviation for "company" or "Commonwealth." 
Co-maker. Surety under a loan. 
Combarones /komb�r6wniyz/. In old English law, fel
low-barons; fellow-citizens; the citizens or freemen of 
the Cinque Ports being anciently called "barons;" the 
term "combarones " is used in this sense in a grant of 
Henry III, to the barons of the port of Fevresham. 
Combat. A forcible encounter between two or more 
persons; a battle; a duel. To fight with; to struggle 
against. 
Mutual Co mbat. Such combat as will, upon sufficient 
provocation, reduce a killing committed with a deadly 
weapon from murder to manslaughter, is defined as one 
into which both parties enter willingly, or in which two 
persons, upon a sudden quarrel, and in hot blood, mutu
ally fight upon equal terms. People v. Matthews, 21 
Ill.App.3d 249, 314 N.E.2d 15, 18. 
Combaterrre /komb�tehrriy / . A valley or piece of low 
ground between two hills. 
Combe. A small or narrow valley. 
Combination. The union or association of two or more 
persons for the attainment of some common end. Al
brecht v. Herald Co., C.A.Mo., 367 F.2d 517, 523. See 
Joint venture. As used in criminal context, means a 
conspiracy or confederation for unlawful or violent acts. 
See Conspi racy. 
Combination in restraint of trade. An agreement or 
understanding between two or more persons, in the form 
of a contract, trust, pool, holding company, or other 
form of association, for the purpose of unduly restricting 
competition, monopolizing trade and commerce in a 
certain commodity, controlling its production, distribu
tion, and price, or otherwise interfering with freedom of 
trade without statutory authority. Such combinations 
are prohibited by the Sherman Antitrust Act. See also 
Clayton Act; Sherman Antitrust Act. 
Combination patent. Patents in which the claimed 
invention resides in a specific combination or arrange
ment of elements, rather than in the elements them
selves. Kinnear-Weed Corp. v. Humble Oil & Refining 
Co., D.C.Tex., 150 F.Supp. 143, 162. One in which none 
of parts or components are new, and none are claimed as 
new, nor is any portion of combination less than whole 
claimed as new or stated to produce any given result. 
Borden, Inc. v. Occidental Petroleum Corp., D.C.Tex., 
381 F.Supp. 1178, 1202. 
Combustio /k�mb�st(i)yow/. Burning. In old English 
law, the punishment inflicted upon apostates. 
Combustio domorum /k�mb�st(i)yow d�m6r�m/. 
Houseburning; arson. 4 Bl.Comm. 272.

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267 
Combustio pecunire Ik�mb�st(i)yow p�kyUwniyiy I. 
Burning of money; the ancient method of testing mixed 
and corrupt money, paid into the exchequer, by melting 
it down. 
Come. To present oneself; to appear in court. 
Comes Ik�mz/, v. A word used in a pleading to indicate 
the defendant's presence in court. 
Comes Ik6wmiyz/, n. Lat. A follower, companion, or 
attendant; a count or earl. 
Comes and defends. This phrase, anciently used in the 
language of pleading, and still surviving in some juris
dictions, occurs at the commencement of a defendant's 
plea or demurrer; and of its two verbs the former 
signifies that he appears in court, the latter that he 
defends the action. 
Comfort. Benefit, consolation, contentment, ease, enjoy
ment, happiness, pleasure, or satisfaction. 
Comfort letter. A letter generally requested by securi
ties underwriters to give "comfort" on the financial 
information included in an SEC registration statement. 
Coming and going rule. See Going and coming rule. 
Coming to rest doctrine. Under this doctrine with 
respect to loading and unloading clauses used in auto
mobile liability policies, coverage afforded by loading-un
loading clause ceases when goods have actually come to 
rest and every connection of motor vehicle with process 
of unloading has ceased. Johnson, Drake & Piper, Inc. 
v. Liberty Mut. Ins. Co., D.C.Minn., 258 F.Supp. 603, 606. 
Cominus Ik6m�n�s/. Lat. Immediately; hand-to-hand; 
in personal contact. 
Comitas Ik6m�t�s/. Lat. Courtesy; civility; comity. 
An indulgence or favor granted another nation, as a 
mere matter of indulgence, without any claim of right 
made. Co mitas inter communita tes; or comitas inter 
gentes; comity between communities or nations; comity 
of nations. 
Comitatu commisso Ikom�teyt(y)uw k�mish(iy)ow/. In 
old English law, a writ or commission, whereby a sheriff 
was authorized to enter upon the charges of a county. 
Comitatu et castro commisso Ikom�teyt(y)uw �t 
krestrow k�misow I. A writ by which the charge of a 
county, together with the keeping of a castle, was com
mitted to the sheriff. 
Comitatus Ikom�teyt�s/. In old English law, a county 
or shire; the body of a county. The territorial jurisdic
tion of a comes, i.e., count or earl. 1 Bl.Comm. 116. An 
earldom. The county court, a court of great antiquity 
and of great dignity in early times. Also, the retinue or 
train of a prince or high governmental of ficial. The 
retinue which accompanied a Roman proconsul to his 
province. The personal following of professional warri
ors. 
Comites Ik6m�tiyz/. Counts or earls. Attendants or 
followers. Persons composing the retinue of a high 
functionary. 
COMMANDEMENT 
Persons who are attached to the suite of a public 
minister. 
Comites paleys Ik6m�tiyz preleys/. Counts or earls pa
latine; those who had the government of a county 
palatine. 
Comitia Ik�mish(iy)�/. In Roman law, an assembly, 
either (1) of the Roman curire, in which case it was 
called the "comitia curiata vel calata ':. or (2) of the 
Roman centuries, in which case it was called the "comi
tia centuriata " (called also comitia majo ra); or (3) of the 
Roman tribes, in which case it was called the "comitia 
tributa. " Only patricians were members of the first 
comitia, and only plebians of the last; but the comitia 
centuriata comprised the entire populace, patricians and 
plebians both, and was the great legislative assembly 
passing the leges, properly so called, as the senate passed 
the senatus cons u lta, and the comitia tributa past the 
plebiscita. Under the Lex Ho rtensia, 287 B.C., the ple
biscitum acquired the force of a lex. 
Comitissa Ikom�tis�/. In old English law, a countess; 
an earl's wife. 
Comitiva Ikom�tayv�/. In old English law, the dignity 
and office of a comes (count or earl); the same with what 
was afterwards called "comitatus. " Also a companion 
or fellow-traveler; a troop or company of robbers. 
Comity Ik6m�tiy I. Courtesy; complaisance; respect; a 
willingness to grant a privilege, not as a matter of right, 
but out of deference and good will. Recognition that 
one sovereignty allows within its territory to the legisla
tive, executive, or judicial act of another sovereignty, 
having due regard to rights of its own citizens. Nowell 
v. Nowell, Tex.Civ.App., 408 S.W.2d 550, 553. In gener
al, principle of "comity" is that courts of one state or 
jurisdiction will give effect to laws and judicial decisions 
of another state or jurisdiction, not as a matter of 
obligation but out of deference and mutual respect. 
Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689, 
695. See also Full faith and credit clause. 
Co mity of nations. The recognition which one nation 
allows within its territory to the legislative, executive, 
or judicial acts of another nation, having due regard 
both to international duty and convenience and to the 
rights of its own citizens or of other persons who are 
under the protection of its laws. 
Judicial comit y. The principle in accordance with 
which the courts of one state or jurisdiction will give 
effect to the laws and judicial decisions of another, not 
as a matter of obligatio n, but out of deference and 
respect. 
Command. An order, imperative direction, or behest. 
To direct, with authority. Power to dominate and con
trol. 
Commandement Ikomond(�)m6n/. In French law, a 
writ served by the hui ssier pursuant to a judgment or to 
an executory notarial deed. Its object is to give notice to 
the debtor that if he does not pay the sum to which he 
has been condemned by the judgment, or which he

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COMMANDEMENT 
engaged to pay by the notarial deed, his property will be 
seized and sold. 
Commander in Chief. One who holds supreme or high
est command of armed forces. By Article II, § 2, of the 
Constitution it is declared that the President shall be 
commander in chief of the army and navy of the United 
States. The term implies supreme control of military 
operations not only with respect to strategy and tactics, 
but also in reference to the political and international 
aspects of the war. 
Commandery. In old English law, a manor or chief 
messuage with lands and tenements thereto appertain
ing, which belonged to the priory of St. John of Jerusa
lem, in England; he who had the government of such a 
manor or house was styled the "commander," who could 
not dispose of it, but to the use of the priory, only taking 
thence his own sustenance, according to his degree. The 
manors and lands belonging to the priory of St. John of 
Jerusalem were given to Henry the Eighth by 32 Hen. 
VIII, c. 20, about the time of the dissolution of abbeys 
and monasteries; so that the name only of commander
ies remains, the power being long since extinct. 
Commanditaires Ik�mrend�terz/. Special partners; 
partners en commandite. See Commandite. 
Commandite Ikomonditey/. In French law, a partner
ship in which some furnish money, and others furnish 
their skill and labor in place of capital. 
A special or limited partnership, where the contract is 
between one or more persons who are general partners, 
and jointly and severally responsible, and one or more 
other persons who merely furnish a particular fund or 
capital stock, and thence are called "commanditaires," 
or "commenditair es," or "partners en commandit e; " the 
business being carried on under the social name or firm 
of the general partners only, composed of the names of 
the general or complementary partners, the partners in 
commandite being liable to losses only to the extent of 
the funds or capital furnished by them. The term 
includes a partnership containing dormant rather than 
special partners. 
Commandment. In old English law, an authoritative 
order of a judge or magisterial officer. Also, the act or 
offense of one who commanded another to transgress the 
law, or do anything contrary to law, as theft, murder, or 
the like. Particularly applied to the act of an accessory 
before the fact in inciting, procuring, setting on, or 
stirring up another to do the fact or act. See also 
Command. 
Commence. To initiate by performing the first act or 
step. To begin, institute or start. 
Civil action in most jurisdictions is commenced by filing 
a complaint with the court. Fed.R. Civil P. 3. 
Co mmencement of buil ding or improvement, within the 
meaning of mechanic's lien statute, is the visible com
mencement of actual operations on the ground for the 
erection of the building, which every one can readily 
recognize as commencement of a building, and which is 
done with intention to continue the work until building 
268 
is completed. Diversified Mortgage Investors v. Gepada, 
Inc., 401 F.Supp. 682, 685. 
Criminal action is commenced within statute of limita
tions at time preliminary complaint or information is 
filed with magistrate in good faith and a warrant issued 
thereon. Knott v. State, Okl.Cr., 387 P.2d 142, 144. A 
criminal prosecution is "commenced" (1) when informa
tion is laid before magistrate charging commission of 
crime, and a warrant of arrest is issued, or (2) when 
grand jury has returned an indictment. Halberstadt v. 
Nelson, 34 Misc.2d 472, 226 N.Y.S.2d 100, 103. 
Commencement of action. See Commence. 
Commencement of prosecution. See Commence. 
Commenda Ik�mend�/. In French law, the delivery of a 
benefice to one who cannot hold the legal title, to keep 
and manage it for a time limited and render an account 
of the proceeds. In commercial law, an association in 
which the management of the property was intrusted to 
individuals. 
Commenda est facultas recipiendi et retinendi bene
ficium contra jus positivum a suprema potestate 
Ik�mend� est f�k�ltres r�sipiyenday et ret�nenday 
ben�fish(iy)�m k6ntr� j�s poz�tayv�m ey s(y)�priym� 
powt�steytiy I. A commendam is the power of receiving 
and retaining a benefice contrary to positive law, by 
supreme authority. 
Commendam Ik�mend�m/. In ecclesiastical law, the 
appointment of a suitable clerk to hold a void or vacant 
benefice or church living until a regular pastor be ap
pointed. 
In commercial law, a species of limited partnership. 
The limited partnership (or societe en commandite ) of 
the French law has been introduced into the Code of 
Louisiana under the title of "Partnership in Co mmen
dam." Civ.Code La. art. 2810 (Civ.Code, art. 2839). 
Commendatio Ikom�ndeysh(iy)ow/. In the civil law, 
commendation, praise, or recommendation, as in the 
maxim "simplex commendatio non obligat," meaning 
that mere recommendation or praise of an article by the 
seller of it does not amount to a warranty of its quali
ties. 
Commendation. In feudal law, the act by which an 
owner of alodial land placed himself and his land under 
the protection of a lord, so as to constitute himself his 
vassal or feudal tenant. 
Commendators Ik6m�ndeyt�rz/. Secular persons upon 
whom ecclesiastical benefices were bestowed; called so 
because the benefices were commended and intrusted to 
their supervision. They are merely trustees. 
Commendatory. He who holds a church living or pre
ferment in commendam. 
Commendatory letters. In ecclesiastical law, such as 
are written by one bishop to another on behalf of any of 
the clergy, or others of his diocese traveling thither, that 
they may be received among the faithful, or that the 
clerk may be promoted, or necessaries administered to 
others, etc.

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269 
Commendatus Ikom:mdeyt;;)sl. In feudal law, one who 
intrusts himself to the protection of another. A person 
who, by voluntary homage, put himself under the pro
tection of a superior lord. 
Comment. The expression of the judgment passed upon 
certain alleged facts by a person who has applied his 
mind to them, and who while so commenting assumes 
that such allegations of fact are true. The assertion of a 
fact is not a "comment." 
Comment on the evidence. An instruction by judge to 
jury on the probative value of the evidence. Cox v. 
Gustafson, 261 Or. 159, 493 P.2d 52, 53. A statement by 
a trial judge will constitute such a comment only if the 
trial court's attitude towards the merits of the cause is 
reasonably inferable from the nature or manner of the 
judge's statement. State v. Carr, 13 Wash.App. 704, 537 
P.2d 844, 849, 850. 
Commerce. The exchange of goods, productions, or 
property of any kind; the buying, selling, and exchang
ing of articles. Anderson v. Humble Oil and Refining 
Co., 226 Ga. 252, 174 S.E.2d 415, 417. The transporta
tion of persons and property by land, water and air. 
Union Pacific R. Co. v. State Tax Commissioner, 19 Utah 
2d 236, 429 P.2d 983, 984. 
Intercourse by way of trade and traffic between differ
ent peoples or states and the citizens or inhabitants 
thereof, including not only the purchase, sale, and ex
change of commodities, but also the instrumentalities 
and agencies by which it is promoted and the means and 
appliances by which it is carried on, and transportation 
of persons as well as of goods, both by land and sea. 
Brennan v. Titusville, 153 U.S. 289, 14 S.Ct. 829, 38 
L.Ed. 719; Railroad Co. v. Fuller, 84 U.S. (17 Wall.) 568, 
21 L.Ed. 710; Hoke v. United States, 227 U.S. 308, 33 
S.Ct. 281, 57 L.Ed. 523. Also interchange of ideas, 
sentiments, etc., as between man and man. 
The term "commerce" means trade, traffic, commerce, 
transportation, or communication among the several 
States, or between the District of Columbia or any 
Territory of the United States and any State or other 
Territory, or between any foreign country and any 
State, Territory, or the District of Columbia, or within 
the District of Columbia or any Territory, or between 
points in the same State but through any other State or 
any Territory or the District of Columbia or any foreign 
country. National Labor Relations Act, § 2. 
For purposes of Fair Labor Standards Act, "com
merce" means trade, commerce, transportation, trans
mission, or communication among several states or be
tween any state and any place outside thereof. Wirtz v. 
B. B. Saxon Co., C.A.Fla., 365 F.2d 457, 460. 
See also Affecting commerce; Chamber of Commerce; 
Interstate and foreign commerce; Interstate commerce; 
Interstate Commerce Act; Interstate Commerce Commis
sion; Intrastate commerce. 
Commerce among the states. Transportation and trans
acting business from one state to another, and also all 
component parts of such intercourse. Dahnke-Walker 
COMMERCE DEPARTMENT 
Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106,108, 
66 L.Ed. 239. See Interstate commerce. 
Co mmerce with fo reign nations. Commerce between cit
izens of the United States and citizens or subject govern
ments; commerce which, either immediately or at some 
stage of its progress, is extraterritorial. U. S. v. Holli
day, 70 U.S. 407, 3 Wall. 407, 18 L.Ed. 182; Veazie v. 
Moor, 55 U.S. 568, 14 How. 568, 14 L.Ed. 545; Lord v. 
Steamship Co., 102 U.S. 541, 26 L.Ed. 224. The same as 
fo reign commer ce, which see below. Power of Congress 
to regulate "commerce with foreign nations" compre
hends every species of commercial intercourse. U.S. 
C.A.Const. Art. I, § 8, cl. 3. Board of Trustees of 
University of Illinois v. U. S., Cust. & Pat.App., 289 U.S. 
48, 53 S.Ct. 509, 77 L.Ed. 1025. 
Commerce with Indian tribes. Commerce with individu
als belonging to such tribes, in the nature of buying, 
selling, and exchanging commodities, without reference 
to the locality where carried on, though it be within the 
limits of a state. U. S. v. Holliday, 3 Wall. 407, 18 L.Ed. 
182. 
Domes tic commer ce. Commerce carried on wholly with
in the limits of the United States, as distinguished from 
foreign commerce. Also, commerce carried on within 
the limits of a single state, as distinguished from inter
state commerce. 
Fo reign commerce. Commerce or trade between the 
United States and foreign countries. The term is some
times applied to commerce between ports of two sister 
states not lying on the same coast, e.g., New York and 
San Francisco. 
Internal commerce. Such as is carried on between indi
viduals within the same state, or between different parts 
of the same state. Now more commonly called "intra
state" commerce. 
International commerce. Commerce between states or 
nations entirely foreign to each other. 
Interstate commerce. Such as is carried on between 
different states of the Union or between points lying in 
different states. See Interstate commerce. 
Intrastate commerce. Such as is begun, carried on, and 
completed wholly within the limits of a single state. 
Contrasted with "interstate commerce" (q. v.J. 
Commerce clause. The provision of U.S .Const. (Art. I, 
§ 8, cl. 3) which gives Congress exclusive powers over 
interstate commerce. This power is the basis for a 
considerable amount of federal legislation and regula
tion. See Commerce; Cooley doctrine; Interstate com
merce. 
Commerce court. A federal court in existence from 
1910 to 1913 which had power to review and enforce 
determinations of the Interstate Commerce Commission. 
Commerce Department. Part of executive branch of 
federal government headed by cabinet member (Secre
tary of Commerce) which is concerned with promoting 
domestic and international business and commerce;

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COMMERCE DEPARTMENT 
may also be a department of state government with 
similar functions. 
Commerce power. See Commer ce clause. 
Commercia belli /k�m;)rs(h)(i)y� belay /. War contracts. 
Contracts between nations at war, or their subjects. 
Agreements entered into by belligerents, either in time 
of peace to take effect in the event of war, or during the 
war itself, by which arrangement is made for non-hostile 
intercourse. They may take the form of armistices, 
truces, capitulations, cartels, passports, safe-conducts, 
safeguards. 
Commercial /k�m;)rsh�l/. Relates to or is connected 
with trade and traffic or commerce in general; is occu
pied with business and commerce. Anderson v. Humble 
Oil & Refining Co., 226 Ga. 252, 174 S.E.2d 415, 416. 
Generic term for most all aspects of buying and selling. 
Commercial activity. Term includes any type of busi
ness or activity which is carried on for a profit. Lanski 
v. Montealegre, 361 Mich. 44, 104 N.W.2d 772, 774. 
Activity relating to or connected with trade and traffic 
or commerce in general. Steinbeck v. Gerosa, 4 N.Y.2d 
302, 175 N.Y.S.2d 1, 6, 151 N.E.2d 170, 173. 
Commercial agency. An office for the collection of 
debts for clients; also an agency for gathering credit 
information. 
Commercial agent. An officer in the consular service of 
the United States, of rank inferior to a consul. Also 
used as equivalent to commercial broker, see infra. 
Commercial bank. An institution authorized to receive 
both demand and time deposits, to make loans of various 
types, to engage in trust services and other fiduciary 
funds, to issue letters of credit, to accept and pay drafts, 
to rent safety deposit boxes, and to engage in many 
similar activities. Formerly, such banks were the only 
institutions authorized to receive demand deposits, 
though today many other types of financial institutions 
are legally permitted to offer checking accounts and 
other similar services. U.S. v. Philadelphia Nat. Bank, 
D.C.Pa., 201 F.Supp. 348, 360. 
Commercial bribery. A form of corrupt and unfair 
trade practice in which an employee accepts a gratuity 
to act against the best interests of his employer. People 
v. Davis, 33 Cr.R. 460, 160 N.Y.S. 769. May assume any 
form of corruption in which an employee is induced to 
betray his employer or to compete unfairly with a com
petitor. Freedman v. U. S., 437 F.Supp. 1252, 1260. 
See also Bribery. 
Commercial broker. One who negotiates the sale of 
merchandise without having the possession or control of 
it, being distinguished in the latter particular from a 
commission merchant (q.v.). 
Commercial code. See Uniform Commercial Code. 
Commercial corporation. One engaged in commerce in 
the broadest sense of that term. 
Commercial court. In England, a court constituted as 
part of the Queen's Bench Division of the High Court, to 
270 
take causes and matters entered in the commercial list. 
Supreme Court Act, 1981, § 6. 
Commercial credit. A letter of credit used to facilitate 
sales of goods (especially in international transactions) 
by insuring payment of the price to the seller-benefi
ciary upon her compliance with the terms of the credit 
procured by the buyer-customer. 
Commercial credit company. Company which extends 
credit and finances dealers and manufacturers. 
Commercial domicile. See Domicile. 
Commercial establishment. A place where commodi
ties are exchanged, bought or sold. State ex reI. Kansas 
City Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 
513, 515. The term contemplates a profit-making estab
lishment. 
Commercial frustration. Excuse of party from per
formance if contract depends on existence of given per
son or thing and such person or thing perishes, and if 
contract is rendered impossible by act of God, the law, or 
other party. Wood v. Bartolino, 48 N.M. 175, 146 P.2d 
883, 885, 890. In theory it amounts to no more than a 
condition or term of a contract which the law implies to 
take the place of a covenant that it is assumed would 
have been inserted by the parties had the contingency 
which arose occurred to them at the time they made the 
contract. Lloyd v. Murphy, Cal.App., 142 P.2d 939, 942, 
943. And doctrine is predicated upon premise of giving 
relief in a situation where parties could not reasonably 
protect themselves by terms of a contract against hap
pening of subsequent events. Berline v. Waldschmidt, 
159 Kan. 585, 156 P .2d 865, 867. Hence doctrine has no 
application where events were reasonably foreseeable 
and controllable by the parties. U.C.C. § 2-613. See 
Commer cial impracticabil ity; Imp ossibility (Imposs ibility of 
performance of contract). 
Commercial impracticability. U.C.C. § 2-615 excuses 
either party from performing a contract where three 
conditions exist: (1) a contingency must occur, (2) per
formance must thereby be made "impractica ble," and (3) 
the nonoccurrence of the contingency must have been a 
basic assumption on which the contract was made. 
Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., C.A. 
Ill., 508 F.2d 283. See. also Commercial frustration. 
\ \ 
Commercial insolvency. Inability of a business to pay 
its debts as they become due in the regular and ordinary 
course of business. See also Bankrupt; Insolvency. 
Commercial instrument. See Commercial paper. 
Commercial insurance. See Insurance. 
Commercial law. A phrase used to designate the whole 
body of substantive jurisprudence (e.g. Uniform Com
mercial Code; Truth in Lending Act) applicable to the 
rights, intercourse, and relations of . persons engaged in 
commerce, trade, or mercantile pursuits. See Uniform 
Commercial Code. 
Commercial letter of credit. See Letter of credit.

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271 
Commercial loan. Loans made to businesses, as distin
guished from personal-consumer credit loans. The di
rect loan from a bank to a business customer for the 
purpose of providing funds needed by the customer in its 
business. Board of Governors FRS v. Dimension Finan
cial Corp., 471 U.S. 1065, 105 S.Ct. 2137, 85 L.Ed.2d 495. 
See also Loan. 
Commercial motor vehicle. Those used primarily for 
business and industry as contrasted with pleasure ve
hicles, e.g. trucks. 
Commercial name. See Trade name. 
Commercial paper. Bills of exchange (i.e., drafts), 
promissory notes, bank-checks, and other negotiable in
struments for the payment of money, which, by their 
form and on their face, purport to be such instruments. 
Short-term, unsecured promissory notes, generally is
sued by large, well-known corporations and finance com
panies. U.C.C. Article 3 is the general law governing 
commercial paper. See also Bearer instrument; Instru
ment; Negotiable instruments; Note; Trade acceptance. 
Securities law. Commercial paper is a "security" under 
the Glass-Steagall Act and therefore is subject to its 
proscriptions on commercial banks marketing "stocks, 
bonds, debentures, notes, or other securities." Securi
ties Industry Association v. Board of Governors of the 
Federal Reserve System et aI., 468 U.S. 137, 104 S.Ct. 
2979, 92 L.Ed.2d 107. 
Commercial property. Income producing property (e.g. 
office buildings, apartments, etc.) as opposed to resi
dential property. 
Commercial reasonableness. May refer to goods which 
meet the warranty of merchantability. U.C.C. § 2-3 14. 
In the context of UCC provisions relating to disposi
tion of collateral upon lawful repossession, means that 
the qualifying disposition of the chattel must be made in 
a good faith attempt to dispose of the collateral to the 
parties' mutual best advantage. Central Budget Corp. v. 
Garrett, 48 A.D.2d 825, 368 N.Y.S.2d 268, 270. 
Commercial set. Primary documents covering shipment 
of goods: invoice, bill of lading, bill of exchange, certifi
cate of insurance. 
Commercial speech doctrine. Speech that was catego
rized as "commercial" in nature (i.e. speech that adver
tised a product or service for profit or for business 
purpose) was formerly not afforded First Amendment 
freedom of speech protection, and as such could be freely 
regulated by statutes and ordinances. Valentine v. 
Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262. 
This doctrine, however, has been essentially abrogated. 
Pittsburgh Press Co. v. Pittsburgh Comm. on Human 
Rights, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669; 
Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 
L.Ed.2d 600; Virginia State Brd. of Pharmacy v. Virgi
nia Citizen Council, 425 U.S. 748, 96 S.Ct. 1817, 48 
L.Ed.2d 346. 
COMMISSAIRE 
Commercial traveler. A drummer; a traveling sales
man who simply exhibits samples of goods kept for sale 
by his principal, and takes orders from purchasers for 
such goods, which goods are afterwards to be delivered 
by the principal to the purchasers, and payment for the 
goods is to be made by the purchasers to the principal on 
such delivery. 
Commercial unit. Means such a unit of goods as by 
commercial usage is a single whole for purposes of sale 
and division of which materially impairs its character or 
value on the market or in use. A commercial unit may 
be a single article (as a machine) or a set of articles (as a 
suite of furniture, or an assortment of sizes) or a quanti
ty (as a bale, gross, or carload) or any other unit treated 
in use or in the relevant market as a single whole. 
U.C.C. § 2-105(6). 
Commercial use. Term implies use in connection with 
or for furtherance of a profit-making enterprise. Rob
erts Enterprises, Inc. v. Secretary of Transp., 237 Kan. 
276, 699 P.2d 479, 483. 
Commercium Ik�m�rs(h)(i)y�m/. Lat. In the civil law, 
commerce; business; trade; dealings in the nature of 
purchase and sale; a contract. 
Commercium jure gentium commune esse debet, et 
non in monopolium et privatum paucorum qurestum 
convertendum Ik�m�s(h)(i)y�m juriy jensh(iy)�m 
k�myuwniy esiy deb�t et non in mon�pow(i)y�m et 
pr�veyt�m pokor�m kwest�m konv�rtend�m/. Com
merce, by the law of nations, ought to be common, and 
not converted to monopoly and the private gain of a few. 
Comminaity Ikom�n�ltiy I. The commonalty or the peo
ple. 
Comminatorium Ik�min�toriy�m/kom�n�toriy�m/. In 
old practice, a clause sometimes added at the end of 
writs, admonishing the sheriff to be faithful in executing 
them. 
Commingle Ik�milJg�l/. To put together in one mass; 
e.g. to combine funds or properties into common fund or 
stock. 
Commingling of funds. Act of fiduciary in mingling 
funds of his beneficiary, client, employer, or ward with 
his own funds. Such act is generally considered to be a 
breach of his fiduciary relationship. May be applied to 
lawyer who mixes client's funds with his own and as a 
result is subject to disciplinary action under Model 
Rules of Professional Conduct. 
Commise Ik�miyzl. In old French law, forfeiture; the 
forfeiture of a fief; the penalty attached to the ingrati
tude of a vassal. 
Commissaire Ikomiser I. In French law, a person who 
receives from a meeting of shareholders a special au
thority, viz., that of checking and examining the ac
counts of a manager or of valuing the apports en nature 
(q.v.). The name is also applied to a judge who receives 
from a court a special mission, e.g., to institute an 
inquiry, or to examine certain books, or to supervise the 
operations of a bankruptcy.

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COMMISSAIRES-PRISEURS 
Commissaires-priseurs /komiser-priyz�r /. In French 
law, auctioneers, who possess the exclusive right of 
selling personal property at public sale in the towns in 
which they are established; and they possess the same 
right concurrently with notaries, greffiers, and hui ssiers, 
in the rest of the arrondissement. 
Commissaria lex /kom::lseriY::l leks/. A principle of the 
Roman law relative to the forfeiture of contracts. 
Commissariat /kom::lseriY::lt/. The whole body of offi
cers who make up the commissaries' department of an 
army. 
Commissary. One who is sent or delegated to execute 
some office or duty as the representative of his superior; 
an officer of the bishop, who exercises spiritual jurisdic
tion in distant parts of the diocese. A general store, 
especially on a military base; a lunchroom, especially at 
a movie or T.V. studio. 
Commission. A warrant or authority or letters patent, 
issuing from the government, or one of its departments, 
or a court, empowering a person or persons named to do 
certain acts, or to exercise the authority of an office (as 
in the case of an officer in the army or navy). 
The authority or instructions under which one person 
transacts business or negotiates for another. In a deriv
ative sense, a body of persons to whom a commission is 
directed. A body composed of several persons acting 
under lawful authority to perform some public service. 
Standard Securities Service Corp. v. King, 161 Tex. 448, 
341 S.W.2d 423, 426. A board or committee officially 
appointed and empowered to perform certain acts or 
exercise certain jurisdiction of a public nature or rela
tion; as a "Public Service Commission". 
An authority or writ issuing from a court, in relation 
to a cause before it, directing and authorizing a person 
or persons named to do some act or exercise some 
special function; usually to take the depositions of wit
nesses. 
Civil law. A species of bailment, being an undertaking, 
without reward, to do something in respect to an article 
bailed; equivalent to "mandate". 
Compensation. The recompense, compensation or re
ward of an agent, salesman, executor, trustee, receiver, 
factor, broker, or bailee, when the same is calculated as 
a percentage on the amount of his transactions or on the 
profit to the principal. Weiner v. Swales, 217 Md. 123, 
141 A.2d 749, 750. A fee paid to an agent or employee 
for transacting a piece of business or performing a 
service. Fryar v. Currin, App., 280 S.C. 241, 312 S.E.2d 
16, 18. Compensation to an administrator or other 
fiduciary for the faithful discharge of his duties. 
Criminal law. Doing or perpetration of a criminal act. 
Commission agent. See Commission merchant; Factor. 
Commission broker. Member of stock or commodity 
exchange who executes buy and sell orders. 
Commission del credere. In commercial law, exists 
where an agent of a seller undertakes to guaranty to his 
principal the payment of the debt due by the buyer. 
272 
The phrase "del credere" is borrowed from the Italian 
language, in which its signification is equivalent to our 
word "guaranty" or "warranty." 
Commissioned office. Officers in the armed forces who 
hold their rank by virtue of a commission from the 
President. 
Commissioner. A person to whom a commission is 
directed by the government or a court. A person with a 
commission. An officer who is charged with the admin
istration of the laws relating to some particular subject
matter, or the management of some bureau or agency of 
the government. Member of a commission or board. 
Specially appointed officer of court. 
The administrative head of an organized professional 
sport. 
In the commission form of municipal government, the 
term is applied to any of the several officers constituting 
the commission. 
Co mmissione rs of bail. Of ficers appointed to take recog
nizances of bail in civil cases. 
Commissioners of deeds. Officers empowered by the 
government of one state to reside in another state, and 
there take acknowledgments of deeds and other papers 
which are to be used as evidence or put on record in the 
former state. 
Co mmissione rs of highways. Of ficers appointed in many 
of the states with power to take charge of the altering, 
opening, repair, and vacating of highways. 
Co unty commissioners. See County. 
Co urt Co mmissioners. Term used variously to designate 
a lawyer appointed to hear facts and report to court. 
Specially appointed officer of court. A person appointed 
to conduct judicial sales. In admiralty, an officer ap
pointed to hear and determine certain issues. See also 
Magistrates (U.S. Magistrates). 
United States Co mmissioners. The functions of U.S. 
Commissioners have been taken over by U.S. Magis
trates. See Magistrates (U.S. Magistrates). 
Commissioner's court. In certain states, such court has 
jurisdiction over county affairs. 
Commission government. A method of municipal 
government in which the legislative power is in the 
hands of a few persons. 
Commission merchant. A term which is synonymous 
with "factor." It means one who receives goods, chat
tels, or merchandise for sale, exchange, or other disposi
tion, and who is to receive a compensation for his 
services, to be paid by the owner, or derived from the 
sale, etc., of the goods. One whose business is to receive 
and sell goods for a commission, being intrusted with the 
possession of the goods to be sold, and usually selling in 
his own name. Hughes v. Young, 17 Tenn.App. 24, 65 
S.W.2d 858, 864. See also Factor. 
Broker distinguished. A "factor" or "commission mer
chant" is one who has the actual or technical possession 
of goods or wares of another for sale, while a "merchan-

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273 
dise broker" is one who negotiates the sale of merchan
dise without having it in his possession or control, being 
simply an agent with very limited powers. Hughes v. 
Young, 17 Tenn.App. 24, 65 S.W.2d 858, 864. 
Commission of anticipation. In English law, an au
thority under the great seal to collect a tax or subsidy 
before the day. Legalized by Provisional Collection of 
Taxes Acts, 1913, 1968. 
Commission of appraisement and sale. Where proper
ty has been arrested in an admiralty action in rem and 
ordered by the court to be sold, the order is carried out 
by a commission of appraisement and sale. In some 
cases (as where the property is to be released on bail and 
the value is disputed) a commission of appraisement 
only is required. 
Commission of array. In old English law, a commission 
issued to send into every county officers to muster or set 
in military order the inhabitants. The introduction of 
commissions of lieutenancy, which contained, in sub
stance, the same powers as these commissions, supersed
ed them. 
Commission of assize Ik;}mish:m ;}v ;}sayz/. In English 
practice, a commission which formerly issued from the 
king, appointing certain persons as commissioners or 
judges of assize to hold the assizes in association with 
discreet knights during those years in which the justices 
in eyre did not come. A commission issued to judges of 
the high court or court of appeal, authorizing them to sit 
at the assizes for the trial of civil actions. 
Commission of charitable uses. In old English law, 
this commission issued out of chancery to the bishop and 
others, where lands given to charitable uses were mi
semployed, or there was any fraud or dispute concerning 
them, to inquire of and redress the same, etc. 
Commission of delegates. In old English law, when 
any sentence was given in any ecclesiastical cause by 
the archbishop, this commission, under the great seal, 
was directed to certain persons, usually lords, bishops, 
and judges of the law, to sit and hear an appeal of the 
same to the king, in the court of chancery. Abolished in 
1832. Its jurisdiction was transferred to the Judicial 
Committee of the Privy Council. 
Commission of partition. In the former English equity 
practice, this was a commission or authority issued to 
certain persons, to effect a division of lands held by 
tenants in common desiring a partition; when the com
missioners reported, the parties were ordered to execute 
mutual conveyances to confirm the division. Commis
sioners appointed to make partition are in the nature of 
arbitrators. A separate commission is issued for each 
county. Administration of Justice Act, 1973, § 1. 
Commission of rebellion. In English law, an attaching 
process, formerly issuable out of chancery, to enforce 
obedience to a process or decree; abolished in August, 
18 41. 
Commission of review. In English ecclesiastical law, a 
commission formerly sometimes granted in extraordi
nary cases, to revise the sentence of the court of del
Black's Law Dictionary 6th Ed.-7 
COMMITTEE 
egates. 3 Bl.Comm. 67. Now out of use, the privy 
council being substituted for the court of delegates, as 
the great court of appeal in all ecclesiastical causes. 
Commission of the peace. In English law, a commis
sion from the crown, appointing certain persons therein 
named, jointly and severally, to keep the peace, etc. 
Justices of the peace are appointed by special commis
sion under the great seal; a separate commission being 
issued for each county and for the city of London. 
Commission to examine witnesses. A commission is
sued out of the court in which an action is pending, to 
direct the taking of the depositions of witnesses who are 
beyond the territorial jurisdiction of the court. Fed.R. 
Civil P. 28. 
Commit. To perpetrate, as a crime; to perform as an 
act; to entrust; to pledge. 
To send a person to prison by virtue of a lawful 
authority, for any crime or contempt, or to a mental 
health facility, workhouse, reformatory, or the like, by 
authority of a court or magistrate. 
To refer to a committee for action; e.g. a legislative 
bill. 
Commitment. A warrant, order, or process by which 
court or magistrate directs ministerial officer to take 
person to penal institution or mental health facility. 
Schildhaus v. City of New York, 7 Misc.2d 859, 163 
N.Y.S.2d 201, 206. Also, the act of taking or sending to 
the .prison, mental health facility, or the like. A person 
is committed when he is actually sentenced to confine
ment by a court as contrasted with a suspended sentence 
or probation. See also Mittimus. 
The proceedings directing confinement of a mentally 
ill or incompetent person for treatment. Commitment 
proceedings may be either civil or criminal; and volun
tary or involuntary. Due process protections are afford
ed to persons involuntarily committed; e.g. periodic judi
cial review of continued confinement. Fasulo v. Arafeh, 
173 Conn. 473, 378 A.2d 553. See Civil commitment. 
Agreement or pledge to do something; e.g. a state
ment by a lender that a loan will be made under certain 
terms. Commitments may be of various types, that is, a 
conditional commitment, subject to certain items being 
met, or a firm commitment, which is binding on the 
lender without conditions. 
Commitment fee. Amount paid to lender by borrower 
for loan commitment in addition to interest. Such are 
common in real estate transactions. 
Committee. A person, or an assembly or board of per
sons, to whom the consideration, determination, or 
management of any matter is committed or referred, as 
by a court or legislature. An individual or body to 
whom others have delegated or committed a particular 
duty, or who have taken on themselves to perform it in 
the expectation of their act being confirmed by the body 
they profess to represent or act for. 
In legislatures a standing committee considers all 
bills, resolutions, and other items of legislative business 
falling within the category of matters over which it has

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COMMITTEE 
been given jurisdiction. Membership and rank on 
standing committees are largely determined by the se
niority rule. A special (or select) committee investigates 
and reports on specific matters and terminates when 
that function has been rendered. A joint committee of a 
legislative body comprising two chambers is a committee 
consisting of representatives of each of the two houses, 
meeting and acting together as one committee. 
Committing magistrate. An inferior judicial officer 
who is invested with authority to conduct the prelimi
nary hearing of persons charged with crime, and either 
to discharge them for lack of sufficient prima facie 
evidence or to commit them to jail to await trial or (in 
some jurisdictions) to accept bail and release them there
on. The term is said to be synonymous with "examining 
court." 
Committitur Ik;}mit;}t;}r/. An order or minute, setting 
forth that the person named in it is commi tted to the 
custody of the sheriff. 
Committitur piece Ik;}mit;}t;}r piys/. In old English law, 
an instrument in writing on paper or parchment, which 
charged a person, already in prison, in execution at the 
suit of the person who arrested him. 
Commixtio Ik;}miksh(iy)ow/, or commixtion Ik;}mik
sh;}n/. In the civil law, the mixing together or confu
sion of things, dry or solid, belonging to different own
ers, as distinguished from confusio, which has relation to 
liquids. 
Commodate. Exists where property is loaned gratui
tously by owner for sole benefit, accommodation, and 
use of borrower, and specific thing loaned is to be 
returned. See also Commodatum. 
Commodati actio Ikom;}deytay reksh(iy)ow/. Lat. In 
the civil law, an action of loan; an action for a thing 
lent. An action given for the recovery of a thing loaned 
(commodatum ), and not returned to the lender. 
Commodatum Ikom;}deyt;}m/. A gratuitous loan of 
goods to be temporarily used by the bailee, and returned 
in specie. He who lends to another a thing for a definite 
time, to be enjoyed and used under certain conditions, 
without any pay or reward, is called "commodans ': . the 
person who receives the thing is called "commodatari
us': and the contract is called "commodatum ". It dif
fers from locatio and conductio, in this: that the use of 
the thing is gratuitous. 
Commodities Ik;}m6d;}tiyz/. Those things which are 
useful or serviceable, particularly articles of merchan
dise movable in trade. Goods, wares, and merchandise 
of any kind; articles of trade or commerce. Movable 
articles of value; things that are bought and sold. This 
word is a broader term than merchandise, and, in refer
ring to commerce may include almost any article of 
movable or personal property. 
Staples such as wool, cotton, etc. which are traded on 
a commodity exchange and on which there is trading in 
futures. 
Commodity. See Commodities. 
274 
Commodity Credit Corporation. The Commodity Cred
it Corporation (CCC) was organized October 17, 1933, 
pursuant to Executive Order 6340 of October 16, 1933, 
under the laws of the State of Delaware, as an agency of 
the United States. From October 17, 1933, to July 1, 
1939, the CCC was managed and operated in close affil
iation with the Reconstruction Finance Corporation. 
On July 1, 1939, the CCC was transferred to the Depart
ment of Agriculture by the President's Reorganization 
Plan 1 of 1939. Approval of the Commodity Credit 
Corporation Charter Act on June 29, 1948 (62 Stat. 1070; 
15 U.S.C.A. § 714), subsequently amended, established 
the CCC, effective July 1, 1948, as an agency and instru
mentality of the United States under a permanent Fed
eral charter. The purpose of CCC is to stabilize and 
protect farm income and prices, to assist in maintaining 
balanced and adequate supplies of agricultural commod
ities and their products, and to facilitate the orderly 
distribution of commodities. 
Commodity future. A speculative transaction involving 
the sale for future delivery of a staple such as wool or 
cotton at a predetermined price. See Futures contract. 
Commodity futures contract. See Futures contract. 
Commodity Futures Trading Commission. An inde
pendent agency of the U.S. Government established to 
administer the Commodity Exchange Act; an Act de
signed to insure fair practices and honest dealing on the 
commodity futures exchanges and to provide a measure 
of control over speculative activity. 
Commodity option. See Option. 
Commodity paper. Commercial documents represent
ing loans secured by bills of lading or warehouse re
ceipts covering commodities. 
Commodity rate. With reference to railroads, a rate 
which applies to a specific commodity alone;--distin
guished from a "class rate", meaning a single rate which 
applies to a number of articles of the same general 
character. 
Commodum ex injuria sua nemo habere debet 
Ik6m;}d;}m eks ;}njuriy;} S(Y)UW;} niymow· h;}biriy deb;}t/. 
No person ought to have advantage from his own wrong. 
Common, n. Belonging or shared equally by more than 
one. Of frequent occurrence. Without special or distin
guishing characteristics. 
An incorporeal hereditament which consists in a prof
it which one man has in connection with one or more 
others in the land of another. See Profit (Profit a pren
dre). 
Tract of land set apart by city or town for use by 
general public. Formerly, such land was to be used for 
common pasturage. Now usually called "parks." 
Co mmon appendant. In old English law, a right an
nexed to the possession of arable land, by which the 
owner is entitled to feed his .. beasts on the lands of 
another, usually of the owner of the manor of which the 
lands entitled to common are a part. 2 Bl.Comm. 33.

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275 
Co mmon appurtenant. A right of feeding one's beasts 
on the land of another (in common with the owner or 
with others), which is founded on a grant, or a prescrip
tion which supposes a grant. 
Co mmon in gross, or at large. A species of common 
which is neither appendant nor appurtenant to land, 
but is annexed to a man's person, being granted to him 
and his heirs by deed; or it may be claimed by prescrip
tive right, as by a person of a church or the like 
corporation sole. 2 Bl.Comm. 34. It is a separate inher
itance, entirely distinct from any other landed property, 
vested in the person to whom the common right belongs. 
Co mmon of estovers. A liberty of taking necessary wood 
for the use or furniture of a house or farm from off 
another's estate, in common with the owner or with 
others. 2 Bl.Comm. 35. It may be claimed, like com
mon of pasture, either by grant or prescription. 
Co mmon of piscary. The right or liberty of fishing in 
another man's water, in common with the owner or with 
other persons. 2 Bl.Comm. 34. A liberty or right of 
fishing in the water covering the soil of another person, 
or in a river running through another's land. Hardin v. 
Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428. 
Co mmon, tenants in. See Tenant (Tenant in common ). 
Common, adj. Usual, ordinary, accustomed; shared 
among several; owned by several jointly. Belonging or 
pertaining to many or to the majority. Generally or 
prevalent, of frequent or ordinary occurrence or appear
ance; familiar by reason of frequency. Webb v. New 
Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 335. Also, 
usual, customary, and habitual, professed, or confessed, 
and used indefinitely in various terms implying illegal 
or criminal conduct, such as common scold, common 
thief, etc. 
As to common Bail; Barretor; Carrier; Chase; Condedit; 
Council; Day; Debtor; Diligence; Drunkard; Error; Fish
ery; Hig hway; Informer; Inn; Intendment of law; Intent; 
Jury; Labor; Nuisance; Occupant; Property; School; 
Scold; Seal; Sergeant; Stock; Traverse; Vouchee; Wall, 
see those titles. 
Co mmon ancestor. A person through whom two or more 
persons claim lineage. 
Co mmon appearance. The manner in which something 
generally appears; e.g. by common appearance blood is 
red. 
Co mmon area. In law of landlord-tenant, the portion of 
demised premises used in common by tenants over 
which landlord retains control (e.g. hallways, stairs) and 
hence for whose condition he is liable, as contrasted 
with areas of which tenant has exclusive possession. 
Term also refers to areas in common ownership and use 
by residents of condominium, subdivision, or planned 
unit development. 
Co mmon assurances. The several modes or instruments 
of conveyance established or authorized by the law of 
England. Called "common" because thereby every 
man' s estate is assured to him. 
COMMON 
Co mmon carrier. Any carrier required by law to convey 
passengers or freight without refusal if the approved 
fare or charge is paid in contrast to private or contract 
carrier. One who holds himself out to the public as 
engaged in business of transportation of persons or 
property from place to place for compensation, and who 
offers services to the public generally. Tilson v. Ford 
Motor Co., D.C.Mich., 130 F.Supp. 676, 678. Such is to 
be distinguished from a contract or private carrier. See 
Carrier. 
Co mmon causes or suits. A term anciently used to 
denote civil actions, or those depending between subject 
and subject, as distinguished from pleas of the crown. 
Co mmon condidit. See Condedit. 
Co mmon count s. Old forms of pleading by which plead
er sets forth in account form the basis of his claim such 
as money had and received, goods sold and delivered, 
etc. Traditionally, the various forms of action of as
sumpsit. 
Co mmon defense. In joint trial of two or more defen
dants, a defense asserted by all defendants. 
Co mmon design. Community of intention between two 
or more persons to do an unlawful act. Generally used 
in criminal context to describe an action taken by two or 
more persons after joint planning. Actions and declara
tions of one participant during existence of common 
design· are chargeable to all participants. Com. v. 
Dahlstrom, 345 Mass. 130, 185 N.E.2d 759. See Combi
nation in restraint of trade; Conspiracy. 
Co mmon disaster. Situation in which the insured and 
beneficiary appear to die simultaneously with no clear 
indication or evidence of which died first. See Simul ta
neous Death Act. 
Co mmon disaster clause. In insurance or will, a clause 
that provides for an alternative beneficiary in event 
both the insured (testator) and beneficiary (legatee) die 
in a common disaster. See Simu ltaneous death clause. 
Co mmon enterprise. See Joint enterprise. 
Co mmon good. Generic term to describe the betterment 
of the general public. 
Co mmon know ledge. Information widely shared by sub
stantial number of people. See Judicial notice. 
Co mmon prayer. The liturgy, or public form of prayer 
prescribed by the Church of England to be used in all 
churches and chapels, and which the clergy are enjoined 
to use under a certain penalty. 
Co mmon repute. The prevailing belief in a given com
munity as to the existence of a certain fact or aggrega
tion of facts. 
Co mmon right. A term applied to rights, privileges., and 
immunities appertaining to and enjoyed by all citizens 
equally and in common, and which have their founda
tion in the common law. 
Co mmon school. A public elementary school.

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COMMON 
Co mmon seller. A common seller of any commodity is 
one who sells it frequently, usually, customarily, or 
habitually. 
Common sense. Sound practical judgment; that degree 
of intelligence and reason, as exercised upon the rela
tions of persons and things and the ordinary affairs of 
life, which is possessed by the generality of mankind, 
and which would suffice to direct the conduct and ac
tions of the individual in a manner to agree with the 
behavior of ordinary persons. 
Co mmon weal. The public or common good or welf are. 
Commonable. Entitled to common. Commonable 
beasts are either beasts of the plow, as horses and oxen, 
or such as manure the land, as kine and sheep. Beasts 
not commonable are swine, goats, and the like. 2 Bl. 
Comm. 33. 
Commonalty /k6m:m�ltiy /. The great body of citizens; 
the mass of the people, excluding the nobility. The body 
of people composing a municipal corporation, excluding 
the corporate officers. The body of a society or corpora
tion, as distinguished from the officers. 
Commonance. The commoners, or tenants and inhab
itants, who have the right of common or commoning in 
open field. 
Common bar. (Otherwise called "blank bar"). A com
mon law plea to compel the plaintiff to assign the 
particular place where the trespass had been committed. 
Common bench. The ancient name for the English 
court of common pleas. Its original title appears to 
have been simply "The Bench", but it was designated 
"Common Bench" to distinguish it from the "King's 
Bench", and because in it were tried and determined the 
causes of common persons, i.e., causes between subject 
and subject, in which the crown had no interest. 
Common descriptive name. Generic trademark; as 
used in the Lanham Act, this refers to a particular 
genus or class of which an individual article or service is 
but a member, and suggests the basic nature of the 
article or services. Soweco, Inc. v. Shell Oil Co., C.A. 
Tex., 617 F.2d 11 78, 11 82. 
Common elements. In condominium law, all portions of 
a condominium other than the units, i.e. physical por
tion of the condominium designated for separate owner
ship or occupancy. Uniform Condominium Act, 1-
103(4), (25). 
Common enemy doctrine. Under "common enemy doc
trine" each landowner has an unqualified right, by 
operations on his own land, to fend off surface waters as 
he sees fit without being required to take into account 
the consequences to other landowners who also have the 
duty and right to protect themselves as best they can. 
Reutner v. Vouga, Mo.App., 367 S.W.2d 34, 41. 
Common enterprise. Under securities law, a venture in 
which the fortunes of an investor are interwoven with 
and dependent upon the efforts and success of those 
seeking the investment or of third parties. S.E.C. v. 
276 
Goldfield Deep Mines Co. of Nevada, C.A.Cal., 758 F.2d 
459, 463. 
Commoners. In old English law, persons having a right 
of common. So called because they have a right to 
pasture on the waste, in common with the lord. 
Common fund doctrine. This doctrine provides that a 
private plaintiff, or plaintiffs attorney, whose efforts 
create, discover, increase, or preserve a fund to which 
others also have a claim is entitled to recover from the 
fund the costs of his litigation, including attorneys' fees. 
Vincent v. Hughes Air West, Inc., C.A.Cal., 557 F.2d 759, 
769. 
Common humanity doctrine. Where a passenger be
comes sick or is injured while en route, carrier owes 
duty under "common humanity doctrine" to render to 
passenger such reasonable care and attention as com
mon humanity would dictate. 
Common knowledge. Refers to what court may declare 
applicable to action without necessity of proof. It is 
knowledge that every intelligent person has, and in
cludes matters of learning, experience, history, and facts 
of which judicial notice may be taken. Shelley v. Chil
ton's Adm'r, 236 Ky. 221, 32 S.W.2d 974, 977. See also 
Judicial notice. 
Common law. As distinguished from statutory law cre
ated by the enactment of legislatures, the common law 
comprises the body of those principles and rules of 
action, relating to the government and security of per
sons and property, which derive their authority solely 
from usages and customs of immemorial antiquity, or 
from the judgments and decrees of the courts recogniz
ing, affirming, and enforcing such usages and customs; 
and, in this sense, particularly the ancient unwritten 
law of England. In general, it is a body of law that 
develops and derives through judicial decisions, as dis
tinguished from legislative enactments. The "common 
law" is all the statutory and case law background of 
England and the American colonies before the American 
revolution. People v. Rehman, 253 C.A.2d 11 9, 61 Cal. 
Rptr. 65, 85. It consists of those principles, usage and 
rules of action applicable to government and security of 
persons and property which do not rest for their authori
ty upon any express and positive declaration of the will 
of the legislature. Bishop v. U. S., D.C.Tex., 334 F.Supp. 
415, 418. 
As distinguished from ecclesiastical law, it is the sys
tem of jurisprudence administered by the purely secular 
tribunals. 
Calif. Civil Code, Section 22.2, provides that the "com
mon law of England, so far as it is not repugnant to or 
inconsistent with the Constitution of the United States, 
or the Constitution or laws of this State, is the rule of 
decision in all the courts of this State ." 
In a broad sense, "common law" may designate all 
that part of the positive law, juristic theory, and ancient 
custom of any state or nation which is of general and 
universal application, thus marking off special or local 
rules or customs.

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277 
For Federal common law, see that title. 
As a compound adjective "common-law" is understood 
as contrasted with or opposed to "statutory," and some
times also to "equitable" or to "criminal." See examples 
below. 
Common-law action. Action governed by common law, 
rather than statutory, equitable, or civil law. 
Common-law assignments. Such forms of assignments 
for the benefit of creditors as were known to the com
mon law, as distinguished from such as are of modern 
invention or authorized by statute. 
Common-law cheat. The obtaining of money or proper
ty by means of a false token, symbol, or device; this 
being the definition of a cheat or "cheating" at common 
law. 
Common-law contempt. A name sometimes applied to 
proceedings for contempt which are criminal in their 
nature, as distinguished from those which are intended 
as purely civil remedies ordinarily arising out of the 
alleged violation of some order entered in the course of a 
chancery proceeding. 
Common-law copyright. Authors' proprietary interest 
in his creation before it has been published. An intangi
ble, incorporeal right in an author of literary or artistic 
productions to reproduce and sell them exclusively and 
arises at the moment of their creation as distinguished 
from federal or statutory copyrights which exist for the 
most part only in published works. Common law copy
right is perpetual while statutory copyright is for term 
of years. Equitable relief is available for violation of 
common law copyright. Edgar H. Wood Associates Inc. 
v. Skene, 347 Mass. 351, 197 N.E.2d 886. The distinc
tion which formerly existed between common law copy
rights and statutory copyrights was abolished by the 
1976 Copyright Act revision; though § 301 of the new 
Act specifically preserves common law copyrights accru
ing prior to January 1, 1978. See also Copyright. 
Common-law courts. In England, those administering 
the common law. 
Common-law crime. One punishable by the force of the 
common law, as distinguished from crimes created by 
statute. 
Common-law dedication. See Dedication. 
Common-law extortion. Corrupt collection of unlawful 
fee by an office under color of of fice. 
Common-law jurisdiction. Jurisdiction of a court to 
try and decide such cases as were cognizable by the 
courts of law under the English common law. The 
jurisdiction of those courts which exercise their judicial 
powers according to the course of the common law. 
Common-law larceny. See Larceny. 
Common-law lien. One known to or granted by the 
common law, as distinguished from statutory, equitable, 
and maritime liens; also one arising by implication of 
law, as distinguished from one created by the agreement 
of the parties. It is a right extended to a person to 
COMMON PROPERTY 
retain that which is in his possession belonging to anoth
er, until the demand or charge of the person in posses
sion is paid or satisfied. Whiteside v. Rocky Mountain 
Fuel Co., C.C.A.Colo., 101 F.2d 765, 769. 
Common-law marriage. One not solemnized in the 
ordinary way (i.e. non-ceremonial) but created by an 
agreement to marry, followed by cohabitation. A con
summated agreement to marry, between persons legally 
capable of making marriage contract, per verba de 
prresenti, followed by cohabitation. Such marriage re
quires a positive mutual agreement, permanent and 
exclusive of all others, to enter into a marriage relation
ship, cohabitation sufficient to warrant a fulfillment of 
necessary relationship of man and wife, and an assump
tion of marital duties and obligations. Marshall v. 
State, Okl.Cr., 537 P.2d 423, 429. Such marriages are 
invalid in many states; e.g. Missouri (after 1921), 
Indiana (after 1958), Maryland, Massachusetts, Nebras
ka (after 1939), Nevada, New Hampshire, New Jersey, 
New Mexico, New York (after 1933), North Dakota, 
Oregon, South Dakota (after 1959), Virginia, Washing
ton, W. Virginia, Wisconsin, Wyoming. 
Common-law state. See Commun ity property. 
Common-law trademark. One appropriated under 
common-law rules, regardless of statutes. Stratton & 
Terstegge Co. v. Stiglitz Furnace Co., 258 Ky. 678, 81 
S.W.2d 1, 3. 
Common-law trust. A business trust which has certain 
characteristics in common with corporations and in 
which trustees hold the property and manage the busi
ness and the shareholders are the trust beneficiaries or 
cestui que trust; sometimes known as a Massachusetts 
trust. See Massachusetts trust. 
Common-law wife. A woman who was party to a com
mon-law marriage; or one who, having lived with a man 
in a relation of concubinage during his life, asserts a 
claim, after his death, to have been his wife according to 
the requirements of the common law. 
Common lawyer. A lawyer learned in the common law. 
This term is now generally obsolete. 
Common market. An economic union established by 
the Treaty of Rome, 1957, which originally included 
Belgium, France, Italy, Luxembourg, the Netherlands 
and West Germany. Its official title is European Eco
nomic Community. 
Common nuisance. A nuisance is a "common nui
sance" or a "public nuisance", the terms being synon
ymous, where it affects the rights enjoyed by citizens as 
part of the public, that is, the rights to which every 
citizen is entitled. Dahlstrom v. Roosevelt Mills, Inc., 27 
Conn.Sup. 355, 238 A.2d 431, 432. See also Nuisance. 
Common pleas court. See Court of Common Pleas. 
Common property. Property held by two or more per
sons in common with each other; e.g. as tenants in 
common. Portion of rented premises over which land
lord retains control but which may be used by tenants

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COMMON PROPERTY 
such as hallways, stairways, etc. See also Communi ty 
property. 
Common recovery. In conveyancing, a species of com
mon assurance, or mode of conveying lands by matter of 
record, formerly in frequent use in England. It was in 
the nature and form of an action at law, carried regular
ly through, and ending in a recovery of the lands against 
the tenant of the freehold; which recovery, being a 
supposed adjudication of the right, bound all persons, 
and vested a free and absolute fee-simple in the recover
er. 2 Bl.Comm. 357. Common recoveries were abol
ished by the statutes 3 & 4 Wm. IV, c. 74. 
Common right. Right derivative from common law. 
Strother v. Lucas, 37 U.S. (12 Pet.) 410, 437, 9 L.Ed. 
11 37. Right peculiar to certain people is not a common 
right. Perdue v. Zoning Bd. of Appeals of City of Nor
walk, 11 8 Conn. 174, 171 A. 26, 28. 
Commons. The class of subjects in Great Britain exclu
sive of the royal family and the nobility. They are 
represented in parliament by the house of commons. 
Part of the demesne land of a manor (or land the 
property of which was in the lord), which, being unculti
vated, was termed the "lord's waste," and served for 
public roads and for common of pasture to the lord and 
his tenants. 2 Bl.Comm. 90. 
Squares; pleasure grounds and spaces or open places 
for public use or public recreation owned by towns or 
cities-in modern usage usually called "parks." 
Commons, House of. See House (Ho use of Commons). 
Common stock. Class of corporate stock which repre
sents the residual ownership of the corporation. Hold
ers of common stock have voting powers (to, for exam
ple, select directors of corporation) and to participate in 
the profits of the corporation by way of dividends (but 
only after preferred stockholders have been paid their 
dividends). Such stock is last to share in property of 
corporation on dissolution (after demands of creditors 
and senior security holders are satisfied). 
Common tenancy. Type of tenancy in which tenants 
hold property in common without right of survivorship. 
May be holding of unequal shares among tenants. Such 
tenancy is subject to partition. See also Tenancy. 
Common thief. One who by practice and habit is a 
thief. An ad judication of a person which may be made 
after a person has been convicted more than once of 
larceny. It generally carries an additional sentence 
beyond that for larceny. Sometimes known as common 
and notorious thief. 
Common trust fund. One composed of funds contribut
ed by estates, trusts and guardianships, maintained and 
operated by a bank or trust company for exclusive use of 
its own estates, trusts and guardianships, under permis
sion of law of state in which it is located and according 
to rules and regulations promulgated by Federal Re
serve System. Mechanicks Nat. Bank of Concord v. 
D'Amours, 100 N.H. 461, 129 A.2d 859, 862. Type of 
trust fund in which funds of many persons are commin
gled for purposes of economy of administration and 
278 
counselling and in which a bank or other financial 
institution is trustee; regulated almost entirely by stat
ute. Several states have adopted the Uniform Common 
Trust Fund Act. 
Common wall. See Party wall. 
Commonwealth. The public or common weal or wel
fare. This cannot be regarded as a technical term of 
public law, though often used in political science. It 
generally designates, when so employed, a republican 
frame of government,-one in which the welfare and 
rights of the entire mass of people are the main consid
eration, rather than the privileges of a class or the will 
of a monarch; or it may designate the body of citizens 
living under such a government. 
Sometimes it may denote the corporate entity, or the 
government, of a jural society (or state) possessing pow
ers of self-government in respect of its immediate con
cerns, but forming an integral part of a larger govern
ment (or nation). In this latter sense, it is the official 
title of several of the United States (as Pennsylvania, 
Massachusetts, Virginia, and Kentucky), and would be 
appropriate to them all. In the former sense, the word 
was used to designate the English government during 
the protectorate of Cromwell. 
Any of the individual States of the United States and 
the body of people constituting a state or politically 
organized community, a body politic, hence, a state, 
especially one constituted by a number of persons united 
by compact or tacit agreement under one form of 
government and system of laws. Detres v. Lions Bldg. 
Corp., C.A.Ill., 234 F.2d 596, 600. 
See Government; Nation; State. 
Commonwealth court. In Pennsylvania, the Common
wealth Court has original jurisdiction of all civil actions 
or proceedings against Commonwealth or its officer (ex
cept habeas corpus or postconviction relief not ancillary 
to its appellate jurisdiction, and eminent domain); all 
civil actions or proceedings by Commonwealth or any 
officer, except eminent domain; and under numerous 
specified regulatory acts. Its original jurisdiction is 
exclusive, except in civil actions or proceedings brought 
by Commonwealth or its officers, which is concurrent 
with common pleas. 
Commorancy Ik6m:mmsiy/ . In English law, the dwell
ing in any place as inhabitant; which consists in usually 
lying there. 4 Bl.Comm. 273. In American law, it is 
used to denote a mere temporary residence. 
Commorant Ik6m;}r:mt/. Staying or abiding; dwelling 
temporarily in a place. One residing in a particular 
town, city, or district. 
Commorientes Ik;}moriy€mtiyzl. Several persons who 
perish at the same time in consequence of the same 
calamity. See Common (Common disaster). 
Commorth, or comorth Ik6m;}rOI. A contribution 
which has gathered at marriages, and when young 
priests said or sung the first masses. Prohibited by 26 
Hen. VIII, c. 6.

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279 
Commote Ikom;;)t/. Half a cantred or hundred in Wales, 
containing fifty villages. Also a great seignory or lord
ship, and may include one or divers manors. 
Commotion Ik;;)mowsh;;)n/. A condition of turmoil, civil 
unrest or insurrection. A civil commotion is an uprising 
among a mass of people which occasions a serious and 
prolonged disturbance and infraction of civil order not 
attaining the status of war or an armed insurrection; it 
is a wild and irregular action of many persons assem
bled together. 
Commune I k;;)myuwn I ,v . To talk; to communicate. 
Commune Ik;;)myuwniy I, adj. Lat. See Communis. 
Commune I komyuwn I ,n . A self-governing town or 
village. Smallest administrative district of many Euro
pean countries. The name given to the committee of 
the people in the French revolution of 1793; and again, 
in the revolutionary uprising of 187 1, it signified the 
attempt to establish absolute self-government in Paris, 
or the mass of those concerned in the attempt. In old 
French law, it signified any municipal corporation. And 
in old English law, the commonalty or common people. 
Small community of people, usually with common 
interests, who own and share property in common. 
Commune concilium Ik;;)myuwniy k;;)nsil(i)y;;)m/. The 
King's Council. See Privy council. 
Commune concilium regni Ik;;)myuwniy k;;)nsil(i)y;;)m 
regnay I. The common council of the realm. One of the 
names of the English parliament. See Commun itas regni 
anglire. 
Commune forum Ik;;)myuwniy f6r;;)m/. The common 
place of justice. The seat of the principal courts, espe
cially those that are fixed. 
Commune placitum Ik;;)myuwniy plres;;)t;;)m/. In old 
English law, a common plea or civil action, such as an 
action of debt. 
Commune vinculum Ik;;)myuwniy vIIJky;;)l;;)m/. In old 
English law, a common or mutual bond. Applied to the 
common stock of consanguinity, and to the feodal bond 
of fealty, as the common bond of union between lord and 
tenant. 2 Bl.Comm. 250; 3 Bl.Comm. 230. 
Communia I k;;)myuwniy;;) I . In old English law, common 
things, res communes. Such as running water, the air, 
the sea, and sea shores. 
Communire Ik;;)myuwniyiy I. In feudal law on the conti
nent of Europe, this name was given to towns enfran
chised by the crown, about the twelfth century, and 
formed into free corporations by grants called "charters 
of community". 
Communia placita Ik;;)myuwniy;;) plres;;)t;;)I . In old Eng
lish law, common pleas or actions; those between one 
subject and another, as distinguished from pleas of the 
crown. 
Communia placita non tenenda in scaccario Ik;;)
myuwniy;;) plres;;)t;;) non t;;)nEmd;;) in sk;;)keriyow I. An an
cient writ directed to the treasurer and barons of the 
exchequer, forbidding them to hold pleas between com-
COMMUNIS ERROR FACIT JUS 
mon persons (i.e., not debtors to the king, who alone 
originally sued and were sued there) in that court, 
where neither of the parties belonged to the same. 
Communibus annis Ik;;)myuwn;;)b;;)s ren;;)s/. In ordinary 
years; on the annual average. 
Communicate. To bestow, convey, make known, re
count, impart; to give by way of information; to talk 
over; to transmit information. See also Utter. 
Communication. Information given; the sharing of 
knowledge by one with another; conference; consulta
tion or bargaining preparatory to making a contract. 
Intercourse; connection. Act of or system of transmit
ting information. A "communication" is ordinarily con
sidered to be a deliberate interchange of thoughts or 
opinions between two or more persons, as distinguished 
from "res gestae" expressions which are spontaneously 
or instinctively provoked, or made while under such 
shock or excitement as to preclude the possibility of 
design. Gulf Oil Corp. v. Harris, Okl., 425 P.2d 957, 962. 
Confidential communi cations. These are certain classes 
of communications, passing between persons who stand 
in a confidential or fiduciary relation to each other (or 
who, on account of their relative situation, are under a 
special duty of secrecy and fidelity), which the law will 
not permit to be divulged, or allow them to be inquired 
into in a court of justice, for the sake of public policy 
and the good order of society. Examples of such privi
leged relations are those of husband and wife, doctor 
and patient, and attorney and client. Such are privi
leged at the option of the spouse-witness, patient-wit
ness, client-witness. For purpose of rule that the attor
ney-client privilege is limited to "communication" be
tween the attorney and the client, "communication" is 
not restricted to oral or written matters but extends to 
information communicated by the client to the attorney 
by other means. State v. Hardin, Mo.App., 558 S.W.2d 
804, 807. Fed.Evid.R. 501. See Privileged communica
tions. 
Libel or slander. As an essential element of tort liabili
ty for libel or slander, such communication (i.e. publica
tion) may be either printed, written, oral, or conveyed by 
means of gestures, or exhibition of a picture or statue. 
See Libel; Publication; Slander. 
Communi custodia Ik;;)myuwnay k;;)stowdiy;;)I . In Eng
lish law, an obsolete writ which anciently lay for the 
lord, whose tenant, holding by knight's service, died, and 
left his eldest son under age, against a stranger that 
entered the land, and obtained the ward of the body. 
Communi dividundo Ik;;)myuwnay div;;)d;)ndow I. In the 
civil law, an action which lies for those who have proper
ty in common, to procure a division. It lies where 
parties hold land in common but not in partnership. 
Communio bonorum Ik;;)myuwn(i)yow b;;)nor;;)m/. In 
the civil law, a community of goods. 
Communis Ibmyuwn ;;)s/, commune Ik;;)myuwniy I, adj. 
Lat. Common. See Commune. 
Communis error facit jus Ik;;)myuwn;;)s ehr;;)r feys;;)t j;)s/. 
Common error, repeated many times, makes law.

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COMMUNISM 
Communism. A system of social organization in which 
goods are held in common, the opposite of the system of 
private property; communalism, any theory or system 
of social organization involving common ownership of 
agents of production of industry, the latter of which 
theories is referred to in the popular use of the word 
"communism" while the scientific usage sometimes con
forms to the first alone and sometimes alternates be
tween the first and second; also the principles and 
theories of the Communist Party. A system by which 
the state controls the means of production and the 
distribution and consumption of industrial products. 
Communis opinio Ik;)myuwn;)s ;)pin(i)yow I. Common 
opinion; general professional opinion. According to 
Lord Coke (who places it on the footing of observance or 
usage), common opinion is good authority in law. 
Communis paries Ik;)myuwn;)s pleriyiyz/. In the civil 
law, a common or party wall. 
Communis rixatrix Ik;)myuwn;)s riks;)tr;)ks/. In old 
English law, a common scold (q.v.). 4 Bl.Comm. 168. 
Communis scriptura Ik;)myuwn;)s skript(y)ur;)I . In old 
English law, a common writing; a writing common to 
both parties; a chirograph. 
Communis stipes Ik;)myuwn;) staypiyz/. A common 
stock of descent; a common ancestor. 
Communist. Member of the Communist party or move
ment. Adherent or advocate of Communism. 
Communitas regni anglire Ik;)myuwn;)tres regnay re1Jgli
yiy I. The general assembly of the kingdom of England. 
One of the ancient names of the English parliament. 1 
Bl.Comm. 148. See also Commune concilium regni. 
Community. Neighborhood; vicinity; synonymous with 
locality. Conley v. Valley Motor Transit Co., C.C.A 
Ohio, 139 F.2d 692, 693. People who reside in a locality 
in more or less proximity. A society or body of people 
living in the same place, under the same laws and 
regulations, who have common rights, privileges, or in
terests. Sacred Heart Academy of Galveston v. Karsch, 
173 Tenn. 618, 122 S.W.2d 416, 417. It connotes a 
congeries of common interests arising from associations 
-social, business, religious, governmental, scholastic, 
recreational. Lukens Steel Co. v. Perkins, 70 App.D.C. 
354, 107 F.2d 627, 631. 
Community account. A bank account consisting of 
separate and community funds commingled in such 
manner that neither can be distinguished from the 
other. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532. 
Community antenna television (CATV). System of 
television reception in which signals from distant sta
tions are picked up by large antenna and transmitted by 
cable to individual paying customers. 
Community debt. One chargeable to the community (of 
husband and wife) rather than to either of the parties 
individually. 
Community house. A house occupied by two or more 
persons or families. A tenement. 
280 
Community lease. Exists where a number of lessors 
owning interests in separate tracts execute a lease in 
favor of a single lessee. Howell v. Union Producing Co., 
C.ATex., 392 F.2d 95. 
Community of interest. Term as applied to relation of 
joint adventure means interest common to both or all 
parties, that is, mixture or identity of interest in ven
ture wherein each and all are reciprocally concerned 
and from which each and all derive material benefit and 
sustain a mutual responsibility. Carboneau v. Peterson, 
1 Wash.2d 347, 95 P.2d 1043, 1055. See Joint venture. 
In class actions, this refers to whatever grievance 
unites members of the class against the defendant but it 
must predominate. Nebel v. City of Chicago, 53 Ill. 
App.3d 890, 11 Ill. Dec. 620, 369 N.E.2d 74, 83. 
In labor law, to determine the appropriate bargaining 
unit, this term includes such factors as bargaining histo
ry, operational integration, geographic proximity, com
mon supervision, similarity in job function and degree of 
employee interchange. N.L.R.B. v. G.H.R. Energy Corp., 
C.ALa., 707 F.2d 11 0, 11 4. 
Community of profits. This term, as used in the defini
tion of a partnership (to which a community of profits is 
essential), means a proprietorship in them as distin
guished from a personal claim upon the other associate 
as much as in the other. Moore v. Williams, 26 Tex.Civ. 
App. 142, 62 S.W. 977. 
Community property. Property owned in common by 
husband and wife each having an undivided one-half 
interest by reason of their marital status. The nine 
states with community property systems are Louisiana, 
Texas, New Mexico, Arizona, California, Washington, 
Idaho, Nevada, and Wisconsin (with adoption of Uni
form Marital Property Act). The rest of the states are 
classified as common law jurisdictions. The difference 
between common law and community property systems 
centers around the property rights possessed by married 
persons. In a common law system, each spouse owns 
whatever he or she earns. Under a community property 
system, one-half of the earnings of each spouse is con
sidered owned by the other spouse. 
Community service. A criminal sentence requiring 
that the offender perform some specific service to the 
community for some specified period of time. 
Commutation Ikomy;)teysh;)n/. Alteration; change; 
SUbstitution; the act of substituting one thing for anoth
er. 
In criminal law, the change of a punishment to one 
which is less severe; as from execution to life imprison
ment. The President of the United States has the power 
to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. U.S. 
Constitution, Art. 2, Sec. 2, cl. 1. With respect to state 
offenses, the governor of a state has the power to grant 
commutations. Sherwood v. Murphy, 123 N.Y.S.2d 360. 
Compare Amnesty; Pardon. 
In commercial law, substituting one form of payment 
for another.

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281 
In civil law, the conversion of the right to receive a 
variable or periodical payment into the right to receive 
a fixed or gross payment; a substitution of one sort of 
payment for another, or of money payment in lieu of a 
performance of a compulsory duty or labor. Commuta
tion may be effected by private agreement, but it is 
usually done under a statute. 
Commutation of taxes. Payment of a designated lump 
sum (permanent or annual) for the privilege of exemp
tion from taxes, or the settlement in advance of a 
specific sum in lieu of an ad valorem tax. 
Commutation of tithes. Signifies the conversion of 
tithes into a fixed payment in money. 
Commutation ticket. A railroad ticket giving the hold
er the right to travel at a certain rate for a limited 
number of trips (or for an unlimited number within a 
certain period of time) for a less amount than would be 
paid in the aggregate for so many separate trips. 
Commutative contract. In civil law, one in which each 
of the contracting parties gives and receives an equiva
lent; e.g., the contract of sale. See Contract. 
Commutative justice. See Justice. 
Commuted value. The present value of a future inter
est in property used in taxation and in evaluating dam
ages. Present value of future payments when discount
ed. 
Comodato /kom�dato w/. In Spanish law, a contract by 
which one person lends gratuitously to another some 
object not consumable, to be restored to him in kind at a 
given period; the same contract as commodatum (q. v.). 
Compact, n. An agreement or contract between persons, 
nations or states. Commonly applied to working agree
ments between and among states concerning matters of 
mutual concern. A contract between parties, which 
creates obligations and rights capable of being enforced, 
and contemplated as such between the parties, in their 
distinct and independent characters. A mutual consent 
of parties concerned respecting some property or right 
that is the object of the stipulation, or something that is 
to be done or forborne. See also Compact clause; Con
federacy; Interstate compact; Treaty. 
Compact, adj. Closely or firmly united or packed, as the 
particles of solid bodies; firm; solid; dense, as a com
pact texture in rocks; also, lying in a narrow compass or 
arranged so as to economize space; having a small 
surface or border in proportion to contents or bulk; 
close, as a compact estate, or a compact order or forma
tion of troops .. 
Compact clause. Art. I, Section 10, Cl. 3, of U.S. Consti
tution provides: "No State shall, without the consent of 
Congress, . . enter into any Agreement or Com
pact with another State . 
Compact school district. One so closely united and so 
nearly adjacent to the school building that all the stu
dents residing in the district may conveniently travel 
from their homes to the school building and return the 
same day in a reasonable length of time and with a 
COMPARABLE ACCOMMODATION 
reasonable degree of comfort. People ex reI. Frailey v. 
McNeely, 376 Ill. 64, 32 N.E.2d 608, 610. 
Companage. All kinds of food, except bread and drink. 
Companies Clauses Consolidation Act. An English 
statute (8 Viet. c. 16), passed in 1845, which consolidated 
the clauses of previous laws still remaining in force on 
the subject of public companies. It is considered as 
incorporated into all subsequent acts authorizing the 
execution of undertakings of a public nature by compa
nies, unless expressly excepted by such later acts. Its 
purpose is declared by the preamble to be to avoid 
repeating provisions as to the constitution and manage
ment of the companies, and to secure greater uniformity 
in such provisions. In England, companies are general
ly governed by the Companies Act, 1985. 
Companies court. Collective title of those judges of the 
Chancery Division of the High Court with jurisdiction 
over all matters pertaining to companies registered in 
England. Companies Act, 1985, § 501. 
Company. Union or association of persons for carrying 
on a commercial or industrial enterprise; a partnership, 
corporation, association, joint stock company. 
Company town. A residential and commercial commu
nity opened by a company for public use and operated 
under color of state law. Illinois Migrant Council v. 
Campbell Soup Co., C.A.Il1., 519 F.2d 391. Community 
exists primarily because of company; with major part of 
housing and stores owned by company. 
Company union. Union whose membership is limited to 
the employees of a single company. Union under com
pany domination. 
Jo int stock company. An association of individuals for 
purposes of profit, possessing a common capital contrib
uted by the members composing it, such capital being 
commonly divided into shares which each member pos
sesses one or more, and which are transferable by the 
owner. One having a joint stock or capital, which is 
divided into numerous transferable shares, or consists of 
transferable stock. A partnership whereof the capital is 
divided, or agreed to be divided, into shares so as to be 
transferable without the express consent of the co-part
ners. 
Limited company. A company in which the liability of 
each shareholder is limited by the number of shares he 
has taken, so that he cannot be called on to contribute 
beyond the amount of his shares. In England, the 
memorandum of association of such company may pro
vide that the liability of the directors, manager, or 
managing director thereof shall be unlimited. 
Comparable accommodation. Within the rule that it 
is the rent generally prevailing on the freeze date for 
comparable accommodations in a defense-rental area 
that determines rent that may be charged, two accom
modations are "comparable" if they are sufficiently sim
ilar to be regarded by an expert as of substantially equal 
rental value or if they are sufficiently similar so that an 
expert taking as a standard the rent prevailing for one 
and making allowances for such differences as would be

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COMPARABLE ACCOMMODATION 
reflected in rental value would be able to determine the 
appropriate corresponding rent for the other. Sirianni 
v. Bowles, Em.App., 148 F.2d 343, 344. 
Com parables. Properties used as comparisons to deter
mine value of a specific property. 
Comparable sales. As evidence of market value of 
condemned property, sales from a willing seller to a 
willing buyer of similar property in the vicinity or at 
about the same time as the taking. U.S. v. 33.90 Acres 
of Land, Situated in Bexar County, C.A.Tex., 709 F.2d 
1012, 1013. 
Comparable worth. Term used to describe a class of 
wage discrimination claims based on the employer's use 
of different criteria in establishing the wage rates for 
male- and female-dominated jobs. Several states have 
enacted laws establishing comparable worth policies and 
processes for implementing pay adjustments for state 
employees. 
Comparatio literarum /komp;m�ysh(iy)ow lid;m�r�m /. 
In the civil law, comparison of writings, or handwrit� 
ings. A mode of proof allowed in certain cases. 
Comparative. Proceeding by the method of comparison; 
founded on comparison; estimated by comparison. 
Comparative interpretation. That method of interpre
tation which seeks to arrive at the meaning of a statute 
or other writing by comparing its several parts and also 
by comparing it as a whole with other like documents 
proceeding from the same source and referring to the 
same general subject. 
Comparative jurisprudence. The study of the princi
ples of legal science by the comparison of various sys
tems of law. 
Comparative negligence. Under comparative negli
gence statutes or doctrines, negligence is measured in 
terms of percentage, and any damages allowed shall be 
diminished in proportion to amount of negligence attrib
utable to the person for whose injury, damage or death 
recovery is sought. Many states have replaced contrib
utory negligence acts or doctrines with comparative 
negligence. Where negligence by both parties is concur
rent and contributes to injury, recovery is not barred 
under such doctrine, but plaintiffs damages are dimin
ished proportionately, provided his fault is less than 
defendant's, and that, by. exercise of ordinary care, he 
could not have avoided consequences of defendant's neg
ligence after it was or should have been apparent. 
Comparative rectitude. Doctrine wherein relief by di
vorce is granted to the party least in fault when both 
have shown grounds for divorce. Weber v. Weber, 256 
Ark. 549, 508 S.W.2d 725, 729. 
Comparative stylistics. An evidential technique focus
ing on nonidentity of typist of questioned writings. 
Matter-of-fact solutions are premised on comparisons of 
the numerous stylistic alternatives in grammar and 
format, and the individualized habits and routine prac
tices inherent in the repetitive reduction of like writings 
to paper, with emphasis on typewritings. In re Ciaffo-
282 
ni's Estate, 498 Pa. 267, 446 A.2d 225, cert.den. Cowden 
v. Ciaffoni, 103 S.Ct. 447. See Fed. and Uniform Rules 
of Evid. 406 and 901. See also Com parative interpreta
tion; Comparison of handwriting; Forensic lingui stics. 
Comparison of handwriting. A comparison by the 
juxtaposition of two writings, in order, by such compari
son, to ascertain whether both were written by the same 
person. 
A method of proof resorted to where the genuineness 
of a written document is disputed; it consists in compar
ing the handwriting of the disputed paper with that of 
another instrument which is proved or admitted to be in 
the writing of the party sought to be charged, in order to 
infer, from their identity or similarity in this respect, 
that they are the work of the same hand. Expert 
testimony with respect to such proof is permitted by 
Fed.Evid. Rule 702, and non-expert testimony is gov
erned by Rule 901. 
See also Compa rative stylistics. 
Compascuum /k�mpreskyuw�m/ . Belonging to commo
nage Jus compasc uum, the right of common pasture. 
Compassing. Imagining or contriving, or plotting. In 
English law, "compassing the king's death" is treason. 
4 Bl.Comm. 76. 
Compaternitas /komp�t�rn�t res/. In the canon law, a 
kind of spiritual relationship contracted by baptism. 
Compaternity. Spiritual affinity, contracted by sponsor
ship in baptism. 
Compatibility. As applied to offices, such relation and 
consistency between the duties of two offices that they 
may be held and filled by one person. Harmonious 
relationship as between husband and wife. 
Compel. To urge forcefully; under extreme pressure. 
Word "compel" as used in constitutional right to be free 
from being compelled in a criminal case to be a witness 
against one's self means to be subjected to some coer
cion, fear, terror, inducement, trickery or threat---either 
physically or psychologically, blatantly or subtly; the 
hallmark of compulsion is the presence of some opera
tive force producing an involuntary response. U. S. v. 
Escandar, C.A.Fla., 465 F.2d 438, 442. 
CompeUativus /kompel�tilYV�s/. An adversary or ac
cuser. 
Compelling state interest. One which the state is 
forced or obliged to protect. Coleman v. Coleman, 32 
Ohio St.2d 155, 291 N.E.2d 530, 534. Term used to 
uphold state action in the face of attack grounded on 
Equal Protection or First Amendment rights because of 
serious need for such state action. Also employed to 
justify state action under police power of state. Print
ing Industries of Gulf Coast v. Hill, 382 F.Supp. 801 
(D.C.Tex.). 
Compensable. Entitled to compensation. See, e.g., 
Compensable injury. 
Compensable death. Within worker's compensation 
acts is one which results to employee from injury by 
accident arising out of and in course of employment.

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283 
Compensable injury. Such injury within workers' com
pensation act is one caused by an accident arising out of 
and in the course of the employment and for which the 
injured employee is entitled to receive compensation 
under such law. Seymour v. Journal-Star Printing Co., 
174 Neb. 150, 11 6 N.W.2d 297, 299. See Workers' Com
pensation Acts. 
Compensacion Ikompensas(i)yown/. In Spanish law, 
compensation; set-off. The extinction of a debt by an
other debt of equal dignity between persons who have 
mutual claims on each other. 
Compensate. To make equivalent return to, to recom
pense, or to pay. Hunt v. Hospital Service Plan of N.J., 
59 N.J. Super. 219, 157 A.2d 575, 577. See Compensa
tion. 
Compensating balance. The balance a borrower from a 
bank is required to keep on deposit as a condition of the 
loan or for continuing line of credit. 
Compensating tax. See Use tax. 
Compensatio Ikomp:mseysh(iy)ow/. Lat. In the civil 
law, compensation, or set-off. A proceeding resembling 
a set-off in the common law, being a claim on the part of 
the defendant to have an amount due to him from the 
plaintiff deducted from his demand. 3 Bl.Comm. 305. 
Compensatio criminis Ikomp:mseysh(iy)ow krim:m;}s/. 
(Set-off of crime or guilt). The compensation or set-off of 
one crime against another; the plea or defense of re
crimination in a suit for a divorce; that is, that the 
complainant is guilty of the same kind of offense with 
which the respondent is charged. 
Compensation. Indemnification; payment of damages; 
making amends; making whole; giving an equivalent or 
substitute of equal value. That which is necessary to 
restore an injured party to his former position. Remu
neration for services rendered, whether in salary, fees, 
or commissions. Consideration or price of a privilege 
purchased. 
Equivalent in money for a loss sustained; equivalent 
given for property taken or for an injury done to anoth
er; giving back an equivalent in either money which is 
but the measure of value, or in actual value otherwise 
conferred; recompense in value; recompense or reward 
for some loss, injury, or service, especially when it is 
given by statute; remuneration for the injury directly 
and proximately caused by a breach of contract or duty; 
remuneration or satisfaction for injury or damage of 
every description (including medical expenses). An act 
which a court orders to be done, or money which a court 
or other tribunal orders to be paid, by a person whose 
acts or omissions have caused loss or injury to another, 
in order that thereby the person damnified may receive 
equal value for his loss, or be made whole in respect of 
his injury. Hughson Condensed Milk Co. v. State Board 
of Equalization, 23 Cal.App.2d 281, 73 P.2d 290, 292. 
See also Damages. 
See also Accrued compensation; Commission; Daily 
rate of pay; Deferred compensation; Fee; Golden para-
COMPETENCY TO STAND TRIAL 
chute; Incentive pay plans; Profit-sharing plan; Salary; 
Unreasonable compensation; Wages. 
Eminent domain. Payment to owners of lands taken or 
injured by the exercise of the power of eminent domain. 
See Just compensation. 
Unemplo yment and workers ' compe nsation. Payments 
to an unemployed or injured worker or his dependents. 
See Workers' Compensation Acts. 
Compensation period. Period fixed by unemployment 
or worker's compensation statutes during which unem
ployed or injured worker is to receive compensation. 
Compensatory damages. See Damages. 
Comperendinatio Ikomp;}rimd:meysh(iy)ow/. In the Ro
man law, the ad journment of a cause, in order to hear 
the parties or their advocates a second time; a second 
hearing of the parties to a cause. 
Compertorium I komp;}rtoriy;}m I . In the civil law, a 
judicial inquest made by delegates or commissioners to 
find out and relate the truth of a cause. 
Comperuit ad diem Ik;}mperuw;}t red day;}m/. A plea in 
bar of an action of a debt on a bail bond that the 
defendant appeared at the day required. 
Compete. To contend emulously; to strive for the posi
tion, reward, profit, goal, etc., for which another is 
striving. To contend in rivalry. See Competition. 
Competency. In the law of evidence, the presence of 
those characteristics, or the absence of those disabilities, 
which render a witness legally fit and qualified to give 
testimony in a court of justice; applied, in the same 
sense, to documents or other written evidence. Evi
dence which is admissible as being able to assist the 
trier of fact (i.e. jury) in determining questions of fact, 
though it may not be believed. Competency differs from 
credibility. The former is a question which arises before 
considering the evidence given by the witness; the latter 
concerns the degree of credit to be given to his testimo
ny. The former denotes the personal qualification of 
the witness; the latter his veracity. A witness may be 
competent, and yet give incredible testimony; he may be 
incompetent, and yet his evidence, if received, be per
fectly credible. Competency is for the court; credibility 
for the jury .. Yet in some cases the term "credible" is 
used as an equivalent for "competent". In law of con
tracts, of legal age without mental disability or incapaci
ty. See also Ability; Authority; Capacity; Competent; 
Competent evidence; Competent witness; Duly qualified; 
Incompetency; Power; Qualified. 
Competency proceedings. Hearings conducted to de
termine a person's mental capacity. Such may be held 
within criminal context to determine competency to 
stand trial, or to be sentenced, or to determine whether 
at time of offense the accused was legally sane. See e.g. 
18 U.S.C.A. §§ 4241 et seq. Such may also be held in 
civil context to determine whether person should be 
committed for treatment. 
Competency to stand trial. A person lacks competency 
to stand trial if he or she lacks capacity to understand

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the nature and object of the proceedings, to consult with 
counsel, and to assist in preparing his or her defense. 
Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 
103. To be "competent to stand trial" a defendant must 
have, at time of trial, sufficient present ability to consult 
with his or her lawyer with a reasonable degree of 
understanding and a rational as well as factual under
standing of the proceedings against him or her. U.S. v. 
Taylor, C.A.Va., 437 F.2d 371, 375. Due process prohib
its the government from prosecuting a defendant who is 
legally incompetent to stand trial. Drope v. Missouri, 
420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103; Pate v. 
Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 
815. The issue of competency is collateral to the issue of 
guilt. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 
788, 4 L.Ed.2d 824. See Insanity. 
Competent. Duly qualified; answering all require
ments; having sufficient capacity, ability or authority; 
possessing the requisite physical, mental, natural or 
legal qualifications; able; adequate; suitable; sufficient; 
capable; legally fit. A testator may be said to be 
"competent" if he or she understands (1) the general 
nature and extent of his property; (2) his relationship to 
the people named in the will and to any people he 
disinherits; (3) what a will is; and (4) the transaction of 
simple business affairs. See also Capacity; Competency; 
Inco mpetency. 
Competent authority. As applied to courts and public 
officers, this term imports jurisdiction and due legal 
authority to deal with the particular matter in question. 
Competent court. A court, either civil or criminal, 
having lawful jurisdiction. 
Competent evidence. That which the very nature of 
the thing to be proven requires, as, the production of a 
writing where its contents are the subject of inquiry. 
Also, generally, admissible (i.e. relevant and material) as 
opposed to "incompetent" or "inadmissible" evidence. 
Frick v. State, Okl.Cr., 509 P.2d 135, 136. See also 
Competency; Evidence; Relevant evidence. 
Competent witness. One who is legally qualified to be 
heard to testify in a cause. A witness may not testify to 
a matter unless evidence is introduced sufficient to 
support a finding that the witness has personal knowl
edge of the matter. Fed.Evid.R. 602. 
As used in statutes relating to the execution of wills, 
the term means a person who, at the time of making the 
attestation, could legally testify in court to the facts 
which he attests by subscribing his name to the will. 
See also Competency. 
Competition. Contest between two rivals. The effort of 
two or more parties, acting independently, to secure the 
business of a third party by the offer of the most 
favorable terms; also the relations between different 
buyers or different sellers which result from this effort. 
Ingram Corp. v. Circle, Inc., La.App., 188 So.2d 96, 98. 
It is the struggle between rivals for the same trade at 
the same time; the act of seeking or endeavoring to gain 
what another is endeavoring to gain at the same time. 
284 
The term implies the idea of endeavoring by two or 
more to obtain the same object or result. See also 
Compete. 
Unfair compe tition in trade. See Combination in restraint 
of trade; Price-fixing; Sherman Antitrust Act; Unfair com
petition. 
Competitive bidding. Such bidding generally encom
passes the submission of bids to complete a project and 
an award of the contract to the responsible bidder best 
able to complete the project in a manner which is 
financially most advantageous to community. Marriott 
Corp. v. Metropolitan Dade County, Fla.App., 383 So.2d 
662, 665. 
Competitive civil service examination. Examination 
which conforms to measures or standards which are 
sufficiently objective to be capable of being challenged 
and reviewed by other examiners of equal ability and 
experience. Such exam may be open in which case all 
may take it or may be promotional in which case only 
those in service may compete against others in service. 
Competitive traffic. Traffic which, as to any one carri
er, originates at a point served also by another carrier, 
which other carrier handles the traffic at equal line
haul rates from origin to destination. 
Competitors. Persons endeavoring to do the same thing 
and each offering to perform the act, furnish the mer
chandise, or render the service better or cheaper than 
his rival. 
Compilation Ikomp;;>leysh;;>n/. A bringing together of 
preexisting statutes in the form in which they were 
enacted, with the removal of sections which have been 
repealed and the substitution of amendments in an 
arrangement designed to facilitate their use. A literary 
production composed of the works or selected extracts of 
others and arranged in methodical manner. Compare 
Code; Codification. See also Compiled statutes; Revised 
statutes. 
In accounting, a term used in connection with the 
presentation of financial statements when the account
ant has accumulated or compiled the financial informa
tion of an entity and does not give assurance that the 
financial statements are presented in conformity with 
generally accepted accounting principles. The account
ant's responsibility in a compiled set of financial state
ments is limited to reviewing the statements for obvious 
errors. 
In copyright law, a "compilation" is a work formed by 
the collection and assembling of preexisting materials or 
of data that are selected, coordinated, or arranged in 
such a way that the resulting work as a whole consti
tutes an original work of authorship. The term "compi
lation" includes collective works. Copyright Act, 17 
U.S.C.A. § 101. See also Colle ctive work. 
Compile. See Compilation. 
Compiled statutes. A collection of the statutes existing 
and in force in a given state, with all laws and parts of 
laws relating to each subject-matter being brought to
gether under one head and the whole arranged system-

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285 
atically, either under an alphabetical arrangement or 
some other plan of classification. Compare Code; Cod
ification. See also Compilation; Revised statutes. 
Complainant. One who applies to the courts for legal 
redress by filing complaint (i.e. plaintiff). Also, one who 
instigates prosecution or who prefers accusation against 
suspected person. 
Complaint. The original or initial pleading by which an 
action is commenced under codes or Rules of Civil Proce
dure. E.g. Fed.R. Civil P. 3. The pleading which sets 
forth a claim for relief. Such complaint (whether it be 
the original claim, counterclaim, cross-claim, or third
party claim) shall contain: (1) a short and plain state
ment of the grounds upon which the court's jurisdiction 
depends, unless the court already has jurisdiction and 
the claim needs no new grounds of jurisdiction to sup
port it, (2) a short and plain statement of the claim 
showing that the pleader is entitled to relief, and (3) a 
demand for judgment for the relief to which he deems 
himself entitled. Relief in the alternative or of several 
different types may be demanded. Fed.R. Civil P. 8(a). 
The complaint, together with the summons, is required 
to be served on the defendant. Rule 4. See also Counter
claim; Cross-c laim; Supplemental complaint; Third party 
complaint. 
In criminal law, a charge, preferred before a magis
trate having jurisdiction, that a person named (or an 
unknown person) has committed a specified offense, 
with an offer to prove the fact, to the end that a 
prosecution may be instituted. The complaint can be 
"taken out" by the victim, the police officer, the district 
attorney, or other interested party. Although the com
plaint charges an offense, an indictment or information 
may be the formal charging document. The complaint 
is a written statement of the essential facts constituting 
the offense charged. In the federal courts, it is to be 
made upon oath before a magistrate. Fed.R.Crim.P. 3. 
If it appears from the complaint that probable cause 
exists that the person named in the complaint commit
ted the alleged crime, a warrant (q.v.) for his arrest will 
be issued. Fed.R.Crim.P. 4. 
Complete, v. To finish; accomplish that which one 
starts out to do. 
Complete, adj. Full; entire; including every item or 
element of the thing spoken of, without omissions or 
deficiencies; as, a "complete" copy, record, schedule, or 
transcript. 
Perfect; consummate; not lacking in any element or 
particular; as in the case of a "complete legal title" to 
land, which includes the possession, the right of posses
sion, and the right of property (i.e. fee simple title). 
Versailles Tp. v. VIm, 152 Pa.Super. 384, 33 A.2d 265, 
267. 
Completed. Finished; nothing substantial remaining to 
be done; state of a thing that has been created, erected, 
constructed or done substantially according to contract. 
Completed contract method. A method used in ac
counting to report profit or loss on long term contracts 
COMPLICITY 
in the year the contract is complete, except that losses 
must be recognized in the year incurred. This method 
differs from the percent of completion method where 
reven ues and expenses are recorded over the life of the 
contract in accordance with the level of progress. The 
completed contract method is not allowed for tax pur
poses for long term contracts entered into after Febru
ary 28, 1986. The acceptable methods for contracts 
entered into after February 28, 1986 include; percent of 
completion and percent of completion-capitalized cost 
method which combines the elements of the completed 
contract and percent of completion methods. See also 
Percentage of completion method. 
Complete determination of cause. Determination of 
every issue so as to render decree or judgment res 
judicata. 
Complete in itself. In reference to a legislative act, 
means covering entire subject; not amendatory. 
Completeness rule. Rule of evidence which permits 
further use of a document to explain portion of doc
ument already in evidence. Camps v. N. Y. City Transit 
Authority, C.A.N.Y., 261 F.2d 320. See also Open (Open 
the door ). 
Complete operation rule. This doctrine holds that an 
unloading clause in insurance policy covers the entire 
process involved in the moving of goods from the mo
ment the goods are in the insured's possession and until 
they are given, at the place of destination, to the party 
to whom delivery is to be made. Aetna Cas. & Sur. Co. 
v. State Farm Mut. Auto. Ins. Co., D.C.App., 380 A.2d 
1385, 1387. 
Complete payment. On a contract, the final payment. 
Completion. The finishing or accomplishing in full of 
something theretofore begun. See also Substantial per
formance doctrine. 
Completion bond. See Bond; Performance bond. 
Complex trust. A trust with elaborate provisions as 
distinguished from a simple trust. May refer to trust in 
which trustees have complete discretion as to accumu
lating or distributing trust income, i.e. trustee need not 
distribute income annually, or make distributions other 
than from income. Hay v. V. S., D.C.Tex., 263 F.Supp. 
813. See also Trust. 
Compliance. Submission; obedience; conformance. 
Complicated. Consisting of many parts or p articulars 
not easily severable in thought; hard to understand or 
explain; involved, intricate, confused. 
Complice. One who is united with others in an ill 
design; an associate, confederate, accomplice, or accesso
ry (q.v.). See also Conspiracy. 
Complicity Ik;}mplis;}tiy I. A state of being an accom
plice; participation in guilt. State v. Scheuering, 226 
La. 660, 76 So.2d 921, 924. Involvement in crime as 
principal or as accessory before fact. May also refer to 
activities of conspirators. See Accomplice; Conspiracy.

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Comply. To yield; to accommodate, or to adapt oneself 
to; to act in accordance with; to accept. 
Composed of. Formed of; consisting of. 
Composite work. Within Copyright Act means work to 
which a number of authors have contributed distin
guishable parts. Works containing distinguishable 
parts which are separately copyrightable. Markham v. 
A.E. Borden Co., C.A.Mass., 206 F.2d 199, 201. See 
Copyright Act §§ 101, 103 (17 U.S.C.A.). See also Collec
tive work; Compilation. 
Compositio mensurarum Ikomp;}zish(iy)ow men
sh;}rer;}m/. The ordinance of measures. The title of an 
ancient ordinance, not printed, mentioned in the statute 
23 Hen. VIII, c. 4; establishing a standard of measures. 
1 Bl.Comm. 275. 
Composition deed. An agreement embodying the terms 
of a composition between a debtor and his creditors. 
Composition of matter. In patent law, a substance 
composed of two or more different substances, without 
regard to form. A mixture or chemical combination of 
materials. 
Composition of tithes, or real composition. This 
arises in English ecclesiastical law, when an agreement 
is made between the owner of lands and the incumbent 
of a benefice, with the consent of the ordinary and the 
patron, that the lands shall, for the future, be dis
charged from payment of tithes, by reason of some land 
or other real recompense given in lieu and satisfaction 
thereof. 2 Bl.Comm. 28. 
Composition with creditors. An agreement, made 
upon a sufficient consideration, between an insolvent or 
embarrassed debtor and his creditors, whereby the lat
ter, for the sake of immediate or sooner payment, agree 
to accept a payment less than the whole amount of their 
claims, to be distributed pro rata, in discharge and 
satisfaction of the whole. It constitutes an agreement 
not only between the debtor and his creditors but also 
one between the creditors themselves that each shall 
accept the lesser sums from the assets of the embar
rassed debtor. Under the former Bankruptcy Act, if 
such a composition agreement expressly or secretly fa
vored certain creditors, it was considered a preferential 
transfer and, as such, treated as an "act of bankruptcy." 
See Act of bankruptcy. Such arrangements are generally 
provided for under the federal Bankruptcy Code. See 
Bankruptcy proceedings (Business reorganizations; Wage 
earner's plan). 
"Composition" should be distinguished from "accord." 
The latter properly denotes an arrangement between a 
debtor and a single creditor for a discharge of the 
obligation by a part payment or on different terms. The 
former designates an arrangement between a debtor and 
the whole body of his creditors (or at least a considerable 
proportion of them) for the liquidation of their claims by 
the dividend offered. 
See also Arrangement with creditors; Assignment (As
signment for benefit of creditors). 
286 
Compositio ulnarum et perticarum Ikomp;}zish(iy)ow 
;}lner;}m ;}t p:}rt;}ker;}m/. The statute of ells and perch
es. The title of an English statute establishing a stan
dard of measures. 1 Bl.Comm. 275. 
Compos mentis Ik6mp;}s ment;}sl. Sound of mind. 
Having use and control of one's mental faculties. 
Compos sui Ik6mp;}s s(y)uway/. Having the use of one's 
limbs, or the power of bodily motion. Si fuit ita compos 
sui quod itinerare potuit de loco in locum, if he had so 
far the use of his limbs as to be able to travel from place 
to place. 
Compotarius Ikomp;}teriy;}sl. In old English law, a 
party accounting. 
Compound, v. To compromise; to effect a composition 
with a creditor; to obtain discharge from a debt by the 
payment of a smaller sum. To put together as elements, 
ingredients, or parts, to form a whole; to combine, to 
unite. To form or make up as a composite product by 
combining different elements, ingredients. or parts, as to 
combine a medicine. See Compounding crime. 
Compound, n. A combination of two or more elements 
or things by means of human agency; an artificial or 
synthetic product. 
Compounder. In Louisiana, the maker of a composition, 
generally called the "amicable compounder." 
Compounding a felony. See Compounding crime. 
Compounding crime. Compounding crime consists of 
the receipt of some property or other consideration in 
return for an agreement not to prosecute or inform on 
one who has committed a crime. There are three ele
ments to this offense at common law, and under the 
typical compounding statute: (1) the agreement not to 
prosecute; (2) knowledge of the actual commission of a 
crime; and (3) the receipt of some consideration. 
The offense committed by a person who, having been 
directly injured by a felony, agrees with the criminal 
that he will not prosecute him, on condition of the 
latter's making reparation, or on receipt of a reward or 
bribe not to prosecute. 
The offense of taking a reward for forbearing to prose
cute a felony; as where a party robbed takes his goods 
again, or other amends, upon an agreement not to 
prosecute. 
See Conceal; Misprision of felony; Receiving stolen 
goods or property; Withholding of evidence. 
Compound interest. Interest that is paid not only on 
the principal, but also on any interest earned but not 
withdrawn during earlier periods. Interest upon inter
est; i.e., when the interest of a sum of money is added to 
the principal, and then bears interest, which thus be
comes a sort of secondary principal. 
Compound larceny. See Compounding crime; Larceny. 
Compra y venta Ik6mpr;} iy vent;}/. In Spanish law, 
purchase and sale. 
Comprehensive zoning plan. A general plan to control 
and direct the use and development of property in a 
municipality or in a large part thereof by dividing it into

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287 
districts according to the present and potential use of 
the properties. Damick v. Planning and Zoning Com
mission of Town of Southington, 158 Conn. 78, 256 A2d 
428. See also Planned unit development (PUD). 
Compremesso Ikompremesow/. In Italian law, the in
strument whereby parties agree to submit to arbitration 
a dispute between them. The equivalent of "compromis
sum" under the Roman Law, the principles of which 
have been carried into the common law and are to be 
found in agreements of accord and satisfaction and 
compromise and settlement. 
Comprint. A surreptitious printing of another book-sell
er's copy of a work, to make gain thereby, which was 
contrary to common law, and is illegal. See Infringe
ment. 
Comprise. To comprehend; include; contain; embrace; 
cover. 
Comprivigni Ikompr;}vignay/. In the civil law, children 
by a former marriage, (individually called "privigni," or 
"privigrue") considered relatively to each other. Thus, 
the son of a husband by a former wife, and the daughter 
of a wife by a former husband, are the com privigni of 
each other. 
Compromise and settlement. Settlement of a disputed 
claim by mutual concession to avoid a lawsuit. Newsom 
v. Miller, 42 Wash.2d 727, 258 P.2d 812, 814. An 
arrangement arrived at, either in court or out of court, 
for settling a dispute upon what appears to the parties 
to be equitable terms, having regard to the uncertainty 
they are in regarding the facts or the law and the facts 
together. An agreement or arrangement by which, in 
consideration of mutual concessions, a controversy is 
terminated. Putnam v. Otsego Mut. Fire Ins. Co., 41 
AD.2d 981, 343 N.Y.S.2d 736, 738. See Alternative dis
pute resolution; Arbitration; Mediation; Settlement. 
Offer of compromise. See Offer, n. 
Compromise verdict. One which is reached only by the 
surrender of conscientious convictions on one material 
issue by some jurors in return for a relinquishment of 
matters in their like settled opinion on another issue, 
and the result is one which does not hold the approval of 
the entire panel. See also Allen charge; Verdict. 
Compromissarii sunt judices Ikompr;}m;}seriyay s:}nt 
juwd;}siyz/. Arbitrators are judges. 
Compromissarius I kompr;}m;}seriy;}s I . In the civil law, 
an arbitrator. 
Compromissum I kompr;}mis;}m I . A submission to arbi
tration. 
Compromissum ad similitudinem judiciorum redigi
tur Ikompr;}mis;}m 1M sim;}l;}tyuwd;}n;}m j;}dishiyor;}m 
r;}dij;}t;}r/. A compromise is brought into affinity with 
judgments. 
Compte arrete Ikom(p)t areytey/. Fr. An account stat
ed in writing, and acknowledged to be correct on its face 
by the party against whom it is stated. 
COMPULSORY DISCLOSURE 
Comptroller Ikom(p)trowl;}r/k;}ntrowl;}r/kontro/. A 
public officer of a state or municipal corporation, or an 
officer of a business, charged with certain duties in 
relation to the fiscal affairs of the same, principally to 
examine and audit the accounts, to keep records, and 
report the financial situation from time to time. There 
are also officers bearing this name in the Treasury 
Department of the United States. 
Comptroller General. Government official (head of G. 
A 0.) whose main function is to audit governmental 
agencies. 
Comptroller of Currency. The Office of the Comptrol
ler of the Currency was created by act of Congress 
approved February 25, 1863 (12 Stat. 665), as an integral 
part of the national banking system. The Comptroller, 
as the administrator of national banks, is responsible for 
the execution of laws relating to national banks and 
promulgates rules and regulations governing the opera
tions of national and District of Columbia banks. Ap
proval of the Comptroller is required for the organiza
tion of new national banks, conversion of State-char
tered banks into national banks, consolidations or merg
ers of banks where the surviving institution is a nation
al bank, and the establishment of branches by national 
banks. 
Compulsa I k;}mp;}ls;} I . A judicially attested copy of a 
testimonio. 
Compulsion. Constraint; objective necessity; duress. 
Forcible inducement to the commission of an act. The 
act of compelling or the state of being compelled; the 
act of driving or urging by force or by physical or moral 
constraint; subjection to force. The compUlsion which 
will excuse a criminal act must be present, imminent 
and impending and of such a nature as to induce a 
well-grounded apprehension of death or serious bodily 
harm. To constitute "compulsion" or "coercion" render
ing payment involuntary, there must be some actual or 
threatened exercise of power possessed, or supposedly 
possessed, by payee over payer's person or property, 
from which payer has no means of immediate relief 
except by advancing money. See Coercion; Duress. 
Compulsory, n. In ecclesiastical procedure, a compulso
ry is a kind of writ to compel the attendance of a 
witness, to undergo examination. 
Compulsory, adj. Involuntary; forced; coerced by legal 
process or by force of statute. 
Compulsory arbitration. See Arbitration. 
Compulsory attendance. Refers to legal obligation to 
attend; e.g. school attendance is compulsory up to cer
tain age. 
Compulsory counterclaim. See Counterclaim. 
Compulsory disclosure. Term with variety of mean
ings; may refer to court order compelling disclosure of 
matters within scope of discovery rules (see Fed.R. Civil 
P. 26, 37, 45; Fed.R.Crim.P. 16, 17). May also refer to 
obligation of public officers or candidates for public

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COMPULSORY DISCLOSURE 
office to reveal assets and income from private sources. 
See also Subpoena. 
Compulsory insurance. Motor vehicle liability cover
age which is required in most states as a condition to 
registration of such vehicle. 
Compulsory license. Licenses created under the Copy
right Act to allow certain parties to make certain uses of 
copyrighted material without the explicit permission of 
the copyright owner, on payment of a specified royalty. 
See e.g. 17 U.S.C.A. § 11 5. 
Compulsory nonsuit. An involuntary nonsuit. See 
No nsuit. 
Compulsory payment. One not made voluntarily, but 
exacted by duress, threats, the enforcement of legal 
process, or unconscionably taking advantage of another. 
May also refer to legal obligations, such as payment of 
taxes or support; or to creditor remedies such as gar
nishment or attachment. 
Compulsory process. Process to compel the attendance 
in court of a person wanted there as a witness or 
otherwise; including not only the ordinary subpoena, 
but also a warrant of arrest or attachment if needed. A 
defendant's right, guaranteed by the federal Constitu
tion, to compel the attendance of witnesses at trial and 
elicit testimony on behalf of the defense. State v. Fort, 
197 N.J. Super. 11 3, 484 A.2d 323, 324. See e.g. Fed.R. 
Civil P. 45. 
The 6th Amend., U.S.C onst., provides that the accused 
shall have the right to "have compulsory process for 
obtaining witnesses in his favor". 
See Bench warrant; Subpoena. 
Compulsory removal. A term of art in admiralty law 
referring to a situation in which a hull has been aban
doned by the owner and the hull underwriter, pursuant 
to government order, must be removed from navigable 
waters; under those circumstances the protection and 
indemnity underwriter, absorbing costs which no one 
else remains liable to pay, must remove the wreck or 
reimburse the government for removaL Seabord Ship
ping Corp. v. Jocharanne Tugboat Corp., C.A.N.Y., 461 
F.2d 500, 504. 
Compulsory sale or purchase. Term used to character
ize the transfer of title to property under the exercise of 
the power of eminent domain, or by reason of judicial 
sale for nonpayment of taxes, or the like. 
Compulsory self-incrimination. Any form of coercion, 
physical or psychological, which renders a confession of 
crime or an admission involuntary, is in violation of the 
5th Amend., U.S .Const. and due process clause of 14th 
Amend. Such practices contravene the very basis of our 
criminal jurisprudence which is accusatorial not inquisi
toriaL Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 
L.Ed.2d 760. See Confession; Interrogation. 
Compurgation. A method of trial used before the thir
teenth century whereby a person charged with a crime 
could be absolved by swearing to innocence and produc-
288 
ing a number of other persons willing to swear that they 
believed the accused's declaration of innocence. 
Compurgator Ikomp;}rgeyt;}r/. One of several neigh
bors of a person accused of a crime, or charged as a 
defendant in a civil action, who appeared and swore that 
they believed him on his oath. 3 BLComm. 341. · See 
Wager of law. 
Computation. The act of computing, numbering, reck
oning, or estimating. The account or estimation of time 
by rule of law, as distinguished from any arbitrary 
construction of the parties. 
Computation of time. For the purpose of calculating 
time under the Rules of Civil Procedure, the day of the 
act or event from which the designated period of time 
begins to run shall not be included. The last day of the 
period so computed shall be included, unless it is a 
Saturday, a Sunday, or a legal holiday, or, when the act 
to be done is the filing of some paper in court, a day on 
which weather or other conditions have made the office 
of the clerk of the district court inaccessible, in which 
event the period runs until the end of the next day 
which is not one of the aforementioned days. Fed.R. 
Civ.P. 6(a); Fed.R.Crim.P. 45. 
Computo Ik;}mpyuwtow I. Lat. To compute, reckon, or 
account. Used in the phrases insimul com put assent, 
"they reckoned together," (see Insimul); plene com putav
it, "he has fully accounted," (see Plene); quod computet, 
"that he account," (see Quod computet). 
Computus Ikompy;}d;}s/. A writ to compel a guardian, 
bailiff, receiver, or accountant to yield up his accounts. 
It is founded on the statute Westm. 2, c. 12. 
Comte Ikownt/. Fr. A count or earL In the ancient 
French law, the comte was an officer having jurisdiction 
over a particular district or territory, with functions 
partly military and partly judiciaL 
Con. Adj. A slang or cant abbreviation for confidence, 
as a con man or a con game. 
Con. Prep. With. 
Con-. A prefix meaning with, together. 
Conatus quid sit, non definitur in jure Ik;}neyt;}s kwid 
sit non def;}nayt;}r in juriy I. What an attempt is, is not 
defined in law. 
Con buena fe Ikon bweyn;} fey I. In Spanish law, with 
(or in) good faith. 
Conceal. To hide, secrete, or withhold from the knowl
edge of others. To withhold from utterance or declara
tion. To cover or keep from sight. To hide or withdraw 
from observation, or prevent discovery of. People v. 
Eddington, 201 CaLApp.2d 574, 20 CaL Rptr. 122, 124. 
See Conceal ment. 
See Compounding crime; Harbor; Misprision of felony; 
Withholding of evidence. 
Accessory after the fact. A person who conceals the 
principal felon or the accessory before the fact is an 
accessory after the fact if he knows of the felony and of 
the identity of the felon. See 18 U.S.C.A. § 3. See also 
Accessory.

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289 
Concealers Ik:msiyl;)rz/. In old English law, such as 
find out concealed lands; that is, lands privily kept from 
the king by common persons having nothing to show for 
them. They are called "a troublesome, disturbant sort 
of men; turbulent persons." 
Concealment. To conceal. A withholding of something 
which one knows and which one, in duty, is bound to 
reveal (e.g. assets in bankruptcy or divorce proceeding; 
health condition in insurance application). A "conceal
ment" in law of insurance implies an intention to with
hold or secrete information so that the one entitled to be 
informed will remain in ignorance. Indiana Ins. Co. v. 
Knoll, 142 Ind.App. 506, 236 N.E.2d 63, 70. See also 
Active concealment; Conceal; Fraudulent concealment. 
Concealment may be basis of estoppel. EleII}ents of 
such estoppel are concealment of material facts with 
knowledge thereof, ignorance thereof on part of person 
to whom representations are made, or from whom facts 
are concealed, intention that such person shall act 
thereon, and action induced thereby on his part. 
Rhoads v. Rhoads, 342 Mo. 934, 11 9 S.W.2d 247, 252; 
Rosser v. Texas Co., 173 Okl. 309, 48 P.2d 327, 330. The 
doctrine of "estoppel by concealment and suppression" 
applies only where there has been reduction to practice 
of invention. Bogoslowsky v. Huse, 31 C.C.P.A. (Pat
ents) 1034, 142 F.2d 75, 76. 
Conceder Ikonseydey/. Fr. In French law, to grant. 
See Concession. 
Concedo Ik;)nsiydow I. Lat. I grant. A word used in 
old Anglo-Saxon grants, and in statutes merchant. 
Conception. The beginning of pregnancy. As to human 
beings, the fecundation of the female ovum by the male 
spermatozoon resulting in human life capable of surviv
al and maturation under normal conditions. Also, a 
plan, idea, thought or design. 
Conception of invention is formation in mind of inven
tor of definite and permanent idea of complete and 
operative invention as it is thereafter to be applied in 
practice. Radio Corp. of America v. Philco Corp., D.C. 
Pa., 201 F.Supp. 135, 149. 
Conceptum Ik;)nsept;)m/. In the civil law, a theft (fur
tum) was called "conceptum, " when the thing stolen was 
searched for, and found upon some person in the pres
ence of witnesses. 
Concern. To pertain, relate, or belong to; be of interest 
or importance to; have connection with; to have refer
ence to; to involve; to affect the interest of. People v. 
Photocolor Corporation, 156 Misc. 47, 281 N.Y.S. 130. 
Concerning, concerned. Relating to; pertaining to; 
affecting; involving; being substantially engaged in or 
taking part in. 
Concert. A person is deemed to act in concert when he 
acts with another to bring about some preconceived 
result. See Accomplice; Conspiracy. 
Concerted action (or plan). Action that has been 
planned, arranged, adjusted, agreed on and settled be
tween parties acting together pursuant to some design 
CONCILIATION 
or scheme. Mutually contrived or planned activity, as, 
for example, a joint action by employees, such as a 
strike or picketing, with the intended purpose of further
ing their bargaining demands or other mutual interests. 
See Accomplice; Combination in restraint of trade; Con
spiracy; Joint tort-feasors. 
Concert of action rule. A rule providing that an agree
ment by two persons to commit a particular crime 
cannot be prosecuted as a conspiracy when the crime is 
of such a nature as to necessarily require participation 
of two persons for its commission. Robinson v. State, 
229 Md. 503, 184 A.2d 814, 820. See Wharton Rule. 
Concessi Ik;)nsesay I. Lat. I have granted. At common 
law, in a feoffment or estate of inheritance, this word 
does not imply a warranty; it only creates a covenant in 
a lease for years. 
Concessimus Ik;)nses;)m;)s/. Lat. We have granted. A 
term used in conveyances, the effect of which was to 
create a joint covenant on the part of the grantors. 
Concessio Ik;)nses(h)(i)yow/. In old English law, a 
grant. One of the old common assurances, or forms of 
conveyance. 
Concession. A grant, ordinarily applied to the grant of 
specific privileges by a government; e.g., French and 
Spanish grants in Louisiana. A voluntary grant, or a 
yielding to a claim or demand (e.g., when each side in a 
labor dispute reduces its demands to effect a settlement). 
A rebate or abatement (e.g., reduced rent for first year 
as inducement to lease property). 
Concessio per regem fieri debet de 
Ik;)nses(h)(i)yow p�r nYJ;)m fay;)ray 
S;)rt;)t(y)uwd;)niy/. A grant by the king 
made from certainty. 
certitudine 
deb;)t diy 
ought to be 
Concessio versus concedentem latam interpretation
em habere debet Ik;)nses(h)(i)yow v�rs;)s kons;)dent;)m 
leyt;)m int�rpr;)teyshiy6wn;)m heybiriy deb;)t/. A grant 
ought to have a broad interpretation (to be liberally 
interpreted) against the grantor. 
Concessit solvere Ik;)nses;)t s6lv;)riy I. He granted and 
agreed to pay. In English law, an action of debt upon a 
simple contract. 
Concessor Ik;)nses;)r/. In old English law, a grantor. 
Concessum Ibnses;)m /. Accorded; conceded. This 
term, frequently used in the old reports, signifies that 
the court admitted or assented to a point or proposition 
made on the argument. 
Concessus Ik;)nses;)s/. A grantee. 
Conciergerie Ikonsyerzh;)riy I. The office or lodge of the 
concierge or janitor. A famous prison attached to the 
Palais de Justice in Paris. 
Conciliation. The adjustment and settlement of a dis
pute in a friendly, unantagonistic manner. Used in 
courts before trial with a view towards avoiding trial 
and in labor disputes before arbitration. See Arbitration;

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CONCILIATION 
Court of Conciliation; Mediation; Pre-trial conference; Set
tlement. 
Concilium I k:msiliy;}m I . Lat. A council. 
In Roman law, a meeting of a section of the people to 
consider and decide matters especially affecting itself. 
Also argument in a cause, or the sitting of the court to 
hear argument; a motion for a day for the argument of 
a cause; a day allowed to a defendant to present his 
argument; an imparlance. 
Concilium ordinarium Ik;}nsiliy;}m ord;}neriy;}m/. In 
Anglo-Norman times, an executive and residuary judi
cial committee of the Aula Regis (q.v.). 
Concilium regis Ik;}nsiliy;}m riyj;}s/. An ancient Eng
lish tribunal existing during the reigns of Edward I. and 
Edward II, to which were referred cases of extraordinary 
difficulty. 
Concionator Ikonsh;}neyt;}r I. In old records, a common 
council man; a freeman called to a legislative hall or 
assembly. 
Conclude. To finish; determine; to estop; to prevent. 
Concluded. Ended; determined; estopped; prevented 
from. 
Conclusion. The end; the termination; the act of fin
ishing or bringing to a close. The conclusion of a 
declaration or complaint is all that part which follows 
the statement of the plaintiffs cause of action. In trial 
practice, it signifies making the final or concluding 
address to the jury or the court; i.e. the summation; 
closing argument. 
Conclusion against the form of the statute. In com
mon law pleading, the proper form for the conclusion of 
an indictment for an offense created by statute was the 
technical phrase "against the form of the statute in such 
case made and provided"; or, in Latin, contra fo rmam 
statuti. 
Conclusion of fact. An inference drawn from the subor
dinate or evidentiary facts. See also Interference. 
Conclusion of law. Statement of court as to law appli
cable on basis of facts found by jury. Finding by court 
as determined through application of rules of law. The 
final judgment or decree required on basis of facts found 
or verdict. Peoples v. Peoples, 10 N.C.App. 402, 179 
S.E.2d 138, 141. Propositions of law which judge arrives 
at after, and as a result of, finding certain facts in case 
tried without jury or an advisory jury and as to these he 
must state them separately in writing. Fed.R. Civil P. 
52(a). See also Judgment. 
Conclusive. Shutting up a matter; shutting out all 
further evidence; not admitting of explanation or con
tradiction; putting an end to inquiry; final; irrefutable; 
decisive. Beyond question or beyond dispute; manifest; 
plain; clear; obvious; visible; apparent; indubitable; 
palpable. 
As to conclusive proof, see Proof. 
Conclusive evidence. That which is incontrovertible, 
either because the law does not permit it to be contra-
290 
dicted, or because it il? so strong and convincing as to 
overbear all proof to the contrary and establish the 
proposition in question beyond any reasonable doubt. 
See Conclusive presumption; Judicial notice; Presumption; 
Proof. 
Conclusive presumption. Exists when an ultimate fact 
is presumed to be true upon proof of another fact, and 
no evidence, no matter how persuasive, can rebut it; an 
example is the presumption that a child less than a 
specified age is unable to consent to sexual intercourse. 
McInerney v. Berman, D.C.Mass., 473 F.Supp. 187, 188. 
Sometimes referred to as irrebuttable presumption. See 
Presumption. 
Concomitant actions. Civil actions which are brought 
together generally for some type of relief. 
Concord. An agreement between two persons, one of 
whom has a right of action against the other, settling 
what amends shall be made for the breach or wrong. A 
compromise or an accord. 
In the old process of levying a fine of lands, the 
concord was an agreement between the parties (real or 
feigned) in which the deforciant (or he who keeps the 
other out of possession) acknowledges that the lands in 
question are the right of complainant; and, from the 
acknowledgment or admission of right thus made, the 
party who levies the fine is called the "cognizor," and 
the person to whom it is levied the "cognizee." 2 
Bl.Comm. 350. An agreement between two or more, 
upon a trespass committed, by way of amends or satis
faction for it. 
Concordare leges legibus est optimus interpretandi 
modus I k;}IJk;}rderiy liyjiyz liyj;}b;}s est opt;}m;}s 
;}nt;}rpr;}trenday mowd;}s/. To make laws agree with 
laws is the best mode of interpreting them. 
Concordat. A compact, covenant or convention between 
two or more independent governments. 
An agreement made by a temporal sovereign with the 
pope, relative to ecclesiastical matters. 
Concordia Ik;}nkordiy;}/. Lat. In old English law, an 
agreement, or concord. The agreement or unanimity of 
a jury. Compellere ad concordiam. 
Concordia discordantium canonum Ik;}IJkordiy;} 
diskordrensh(iy);}m kren;}n;}m/. The harmony of the dis
cordant canons. A collection of ecclesiastical constitu
tions made by Gratian, an Italian monk, A.D. 11 51; 
more commonly known by the name of "Decretum Gra
tiani. " 
Concordia parvre res crescunt et 0pulentia lites 
IbIJ kordiy;} parviy riyz kresk;}nt ed opy;}lensh(iy);} lay
tiyz/. Small means increase by concord and litigations 
by opulence. 
Concubinage Ik;}IJkyuwb;}n;}j/. Living together (i.e. co
habitation) of persons not legally married. 
Concubinatus Ik;}IJkyuwb;}neyt;}s/. In Roman law, an 
informal, unsanctioned, or "natural" marriage, as con
tradistinguished from the justa: nuptire, or justum matri
monium, the civil marriage.

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291 
Concubine Iko1)ky;)bayn/. A woman who cohabits with 
a man to whom she is not married. A mistress. A sort 
of inferior wife, among the Romans, upon whom the 
husband did not confer his rank or quality. 
Concur. To agree; accord; act together; consent. To 
agree with the result reached by another, but not neces
sarily with the reasoning or the logic used in reaching 
such a result. In the practice of appellate courts, a 
"concurring opinion" is one filed by one of the judges or 
justices, in which he agrees with the conclusions or the 
result of another opinion filed in the case (which may be 
either the opinion of the court or a dissenting opinion) 
though he states separately his views of the case or his 
reasons for so concurring. 
In Louisiana law, to join with other claimants in 
presenting a demand against an insolvent estate. 
Concurator Ik(1)kyur;)t;)r/. In the civil law, a joint or 
co-curator, or guardian. 
Concurrence. A meeting or coming together; agree
ment or union in action; meeting of minds; union in 
design; consent. Babyak v. Alten, 106 Ohio App. 191, 
154 N.E.2d 14, 18. 
Concurrence deloyale. A term of the French law near
ly equivalent to "unfair trade competition;" and used in 
relation to the infringement of rights secured by trade
marks, etc. It signifies a dishonest, perfidious, or 
treacherous rivalry in trade, or any manreuvre calculat
ed to prejudice the good will of a business or the value of 
the name of a property or its credit or renown with the 
public, to the injury of a business competitor. 
Concurrent. Running together; having the same au
thority; acting in conjunction; agreeing in the same act 
or opinion; pursuit of same course; contributing to the 
same event; contemporaneous. Co-operating, accompa
nying, conjoined, associated, concomitant, joint and 
equal, existing together, and operating on the same 
subject. United in agreement. State ex reI. School 
Dist. No. 8 v. Lensman, 108 Mont. 11 8, 88 P.2d 63, 68. 
As to concurrent Covenant; Insurance; Lease; Resolu
tion; and Writ, see those titles. 
Concurrent causes. Causes acting contemporaneously 
and together causing injury, which would not have re
sulted in absence of either. Two distinct causes operat
ing at the same time to produce a given result, which 
might be produced by either, are "concurrent causes"; 
but two distinct causes, successive and unrelated in an 
operation, cannot be concurring, and one will be regard
ed as the proximate and efficient and responsible cause, 
and the other will be regarded as the remote cause. See 
also Cause. 
Concurrent conditions. Conditions which must occur 
or be performed at the same time; they are mutually 
dependent. No obligations arise until these conditions 
are simultaneously performed. When each party to a 
transaction is subject to mutual conditions precedent, 
these are concurrent conditions. McFadden v. Wilder, 6 
Ariz.App. 60, 429 P.2d 694. See also Conditions concur
rent. 
CONCURSO 
Concurrent estates. Ownership or possession of proper
ty by two or more persons at the same time; e.g. joint 
tenancy, tenancy in common. 
Concurrent interests. See Concurrent estates. 
Concurrent jurisdiction. The jurisdiction of several 
different tribunals, each authorized to deal with the 
same subject-matter at the choice of the suitor. Author
ity shared by two or more legislative, judicial, or admin
istrative officers or bodies to deal with the same subject 
matter. Jurisdiction exercised by different courts, at 
same time, over same subject matter, and within same 
territory, and wherein litigants may, in first instance, 
resort to either court indifferently. State v. Stueve, 260 
Iowa 1023, 150 N.W.2d 597, 602. For example, some 
cases can be heard in a federal or state court. When a 
case can only be tried in federal court, or only in state 
court, jurisdiction is "exclusive." 
Concurrent liens. Two or more liens or possessory 
rights in the nature of liens on the same property and 
possessing the same priority. 
Concurrent negligence. Consists of the negligence of 
two or more persons concurring, not necessarily in point 
of time, but in point of consequence, in producing a 
single indivisible injury. Travelers Indemnity Co. v. 
Towbridge, Com.Pl., 38 Ohio Misc. 55, 311 N.E.2d 901, 
905. See also Com parative negligence; Concurrent tort
feasors; Contributory negligence. 
Concurrent power. The power of either Congress or 
the State legislatures, each acting independently of the 
other, to make laws on the same subject matter. 
Concurrent sentences. Two or more terms of imprison
ment, all or part of each term of which is served simul
taneously and the prisoner is entitled to discharge at the 
expiration of the longest term specified. State ex reI. 
Lillemoe v. Tahash, 280 Minn. 176, 159 N.W.2d 99, 102. 
The existence of one valid conviction may make unnec
essary review of other convictions when concurrent sen
tences have been given. U.S. v. Montemayor, C.A.Tex., 
703 F.2d 109, 11 4. 
Concurrent tortfeasors. Those whose independent, 
negligent acts combined or concurred at one point in 
time to injure a third party. Radford-Shelton & Associ
ates Dental Laboratory, Inc. v. Saint Francis Hospital, 
Inc., Okl.App., 569 P.2d 506, 509. See also Comparative 
negligence; Concurrent negligence. 
Concurring opinion. A separate opinion delivered by 
one or more judges which agrees with the decision of the 
majority of the court but offering own reasons for reach
ing that decision. See also Concur. 
Concurso Ik;)1)k�rsow I. In the law of Louisiana, the 
name of a suit or remedy to enable creditors to enforce 
their claims against an insolvent or failing debtor. Liti
gation or opportunity of litigation between various credi
tors, each claiming adversely to one another to share in 
a fund or an estate, object being to assemble in one 
accounting all claimants on the fund.

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CONCURSUS 
Concursus Ik;)1Jk�rs;)s/. In the civil law, a running 
together; a collision, as concursus creditorum, a conflict 
among creditors. A concurrence, or meeting, as concur
sus actionum , concurrence of actions. A proceeding in 
Louisiana similar to interpleader. 
Concussio Ik;)1Jk�sh(iy)ow/. In the civil law, the offense 
of extortion by threats of violence. 
Concussion. In the civil law, the unlawful forcing of 
another by threats of violence to give something of 
value. It differs from robbery, in this: That in robbery 
the thing is taken by force, while in concussion it is 
obtained by threatened violence. 
Loss or alteration of consciousness from a direct, 
closed head injury. 
Condedit Ik;)ndiyd;)t/. In ecclesiastical law, the name of 
a plea entered by a party to a libel filed in the ecclesias
tical court, in which it is pleaded that the deceased 
made the will which is the subject of the suit, and that 
he was of sound mind. 
Condemn. To adjudge or sentence. To find or adjudge 
guilty; especially with reference to pronouncement of 
sentence of death for capital offense. To declare a 
building, ship, or the like, unfit for habitation, use or 
occupation. To adjudge (as an admiralty court) that a 
vessel is a prize, or that she is unfit for service. To set 
apart or expropriate property for public use, in the 
exercise of the power of eminent domain. See also 
Condemnation. 
Condemnation Ikond;)mneysh;)n/. Process of taking 
private property for public use through the power of 
eminent domain. "Just compensation" must be paid to 
owner for taking of such (5th Amend., U.S. Constitu
tion). See also Constructive taking; Damages; Eminent 
domain; Expropriation; Just compensation; Public use; 
Similar sales; Taking. 
Admiralty law. The judgment or sentence of a court 
having jurisdiction and acting in rem, by which: (1) it is 
declared that a vessel which has been captured at sea as 
a prize was lawfully so seized and is liable to be treated 
as prize; or (2) that property which has been seized for 
an alleged violation of the revenue laws, neutrality laws, 
navigation laws, etc., was lawfully so seized, and is, for 
such cause, forfeited to the government; or (3) that the 
vessel which is the subject of inquiry is unfit and unsafe 
for navigation. 
Civil law. A sentence or judgment which condemns 
some one to do, to give, or to pay something, or which 
declares that his claim or pretensions are unfounded. 
State v. Harr, 24 Tenn.App. 298, 143 S.W.2d 893, 895. 
Excess condemnation. Taking of property not strictly 
needed for a public use, or taking of more property than 
is needed for a public use. 
Inverse condemnation. Condemnation of property near 
a parcel so as to cause the parcel to lose much of its 
value. In such a case the parcel is, in effect, construc
tively condemned, and just compensation must be paid 
to the owner, even though formal eminent domain pro-
292 
ceedings were not actually taken against that particular 
parcel. 
Quick condemnation. Under this procedure the munici
pality takes immediate possession of owner's property 
with estimated just compensation placed in escrow until 
actual compensation has been ascertained. 
Condemnation money. Former term for damages 
which the party failing in an action was adjudged or 
condemned to pay; sometimes simply called the "con
demnation." 
Condemnee. Owner of property taken by condemna
tion. 
Condemner. Party taking property by condemnation. 
Condictio Ik;)ndi(k)sh(iy)ow/ . In Roman law, a general 
term for actions of a personal nature, founded upon an 
obligation to give or do a certain and defined thing or 
service. It is distinguished from vindicatio rei, which is 
an action to vindicate one's right of property in a thing 
by regaining (or retaining) possession of it against the 
adverse claim of the other party. 
Condictio certi Ik;)ndi(k)sh(iy)ow s�rta y/. An action 
which lies upon a promise to do a thing, where such 
promise or stipulation is certain (si certa sit stipulatio ). 
Condictio ex lege Ik;)ndi(k)sh(iy)ow eks liyjiy/. An ac
tion arising where the law gave a remedy, but provided 
no appropriate form of action. 
Condictio indebitati Ik;)ndi(k)sh(iy)ow ;)ndeb;)teytay I. 
An action which lay to recover anything which the 
plaintiff had given or paid to the defendant, by mistake, 
and which he was not bound to give or pay, either in 
fact or in law. 
Condictio rei furtivre Ik;)ndi(k)sh(iy)ow riyay f;)r
tayviy I. An action which lay to recover a thing stolen, 
against the thief himself, or his heir. 
Condictio sine causa Ik;)ndi(k)sh(iy)ow sayniy k6z;)/. 
An action which lay in favor of a person who had given 
or promised a thing without consideration (causa). 
Conditio Ik;)ndish(iy)ow I. Lat. A condition. 
Conditio beneficialis, qure statum construit, benigne 
secundum verborum intentionem est interpretanda; 
odiosa autem, qure statum destruit, stricte secun
dum verborum proprietatem accipienda 
Ik;)ndish(iy)ow bim;)fishiyeyl;)s kwiy steyt;)m k6nstruw;)t 
b;)nigniy s;)k:}nd;)m v;)rb6r;)m intenshiy6wn;)m est 
int;}rpr;)trend;); owdiy6ws;) 6t;)m, kwiy steyt;)m des
truw;)t, striktiy s;)k:}nd;)m v;)rb6r;)m pr;)pray;)teyt;)m 
;)ksipiyend;)I . A beneficial condition, which creates an 
estate, ought to be construed favorably, according to the 
intention of the words; but a condition which destroys 
an estate is odious, and ought to be construed strictly 
according to the letter of the words. 
Conditio dicitur, cum quid in casum incertum qui 
potest tendere ad esse aut non esse, confertur 
Ik;)ndish(iy)ow dis;)t;)r k;}m kwid in keys;)m ins�rt;)m 
kway p6wt;)st tend;)riy red esiy ot n6n esiy k;)nf:}rt;)r I. It 
is called a "condition" when something is given on an

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293 
uncertain event, which may or may not come into exist
ence. 
Conditio illicita habetur pro non adjecta 
Ik:mdish(iy)ow �lis�t� h�biyt�r prow non �jek t� /. An 
unlawful condition is deemed as not annexed. 
Condition. A future and uncertain event upon the 
happening of which is made to depend the existence of 
an obligation, or that which subordinates the existence 
of liability under a contract to a certain future event. 
Provision making effect of legal instrument contingent 
upon an uncertain event. See also Constructive condi
tion; Contingency; Contingent; Proviso. 
A clause in a contract or agreement which has for its 
object to suspend, rescind, or modify the principal obli
gation, or, in case of a will, to suspend, revoke, or modify 
the devise or bequest. A qualification, restriction, or 
limitation modifying or destroying the original act with 
which it is connected; an event, fact, or the like that is 
necessary to the occurrence of some other, though not 
its cause; a prerequisite; a stipulation. 
A qualification or restriction annexed to a conveyance 
of lands, whereby it is provided that in case a particular 
event does or does not happen, or in case the grantor or 
grantee does or omits to do a particular act, an estate 
shall commence, be enlarged, or be defeated. 
An "estate on condition" arises where an estate is 
granted, either in fee simple or otherwise, with an 
express qualification annexed, whereby the estate grant
ed shall either commence, be enlarged, or be defeated, 
upon performance or breach of such qualification or 
condition. 
In insurance parlance, the printed conditions on the 
inside of the policy which serve generally as a limitation 
of risk or of liability or impose various conditions requir
ing compliance by the insured. 
Mode or state of being; state or situation; essential 
quality; property; attribute; status or rank. 
Civil law. Conditions in the civil law are of the follow
ing types: 
The casual condition is that which depends on chance, 
and is in no way in the power either of the creditor or of 
the debtor. Civ.Code La. art. 2023. 
A mixed condition is one that depends at the same 
time on the will of one of the parties and on the will of a 
third person, or on the will of one of the parties and also 
on a casual event. Civ.Code La. art. 2025. 
The pote stative condition is that which makes the 
execution of the agreement depend on an event which it 
is in the power of the one or the other of the contracting 
parties to bring about or to hinder. Civ.Code La. art. 
2024. 
A reso lutory or dissolving condition is that which, 
when accomplished, operates the revocation of the obli
gation, placing matters in the same state as though the 
obligation had not existed. It does not suspend the 
,execution of the obligation. It only obliges the creditor 
to restore what he has received in case the event provid-
CONDITION 
ed for in the condition takes place. Civ.Code La. art. 
2045. 
A suspensive condition is that which depends, either 
on a future and uncertain event, or on an event which 
has actually taken place, without its being yet known to 
the parties. In the former case, the obligation cannot be 
executed till after the event; in the latter, the obligation 
has its effect from the day on which it was contracted, 
but it cannot be enforced until the event be known. 
Civ.Code La. art. 2043; New Orleans v. Railroad Co., 171 
U.S. 312, 18 S.Ct. 875, 43 L.Ed. 178. A condition which 
prevents a contract from going into operation until it 
has been fulfilled. 
Classification. Conditions are either express or implied, 
the former when incorporated in express terms in the 
deed, contract, lease, or grant; the latter, when inferred 
or presumed by law, from the nature of the transaction 
or the conduct of the parties, to have been tacitly 
understood between them as a part of the agreement, 
though not expressly mentioned. 
They are poss ible or impos sible : the former when 
they admit of performance in the ordinary course of 
events; the latter when it is contrary to the course of 
nature or human limitations that they should ever be 
performed. 
They are lawful or unlawful : the former when their 
character is not in violation of any rule, principle, or 
policy of law; the latter when they are such as the law 
will not allow to be made. 
They are consistent or repugnant : the former when . 
they are in harmony and concord with the other parts of 
the transaction; the latter when they contradict, annul, 
or neutralize the main purpose of the "contract". Re
pugnant conditions are also called "insensible". 
They are affirmative or negative: the former being a 
condition which consists in doing a thing, as provided 
that the lessee shall pay rent, etc.; the latter being a 
condition that consists in not doing a thing, as provided 
that the lessee shall not alien, etc. 
They are precedent or subsequent. A condition prece
dent is one which must happen or be performed before 
the estate to which it is annexed can vest or be enlarged; 
or it is one which is to be performed before some right 
dependent thereon accrues, or some act dependent 
thereon is performed. A fact other than mere lapse of 
time which must exist or occur before a duty of immedi
ate performance of a promise arises. U. S. v. Schaeffer, 
C.A.Wash., 319 F.2d 907, 911. A "condition precedent" 
is one that is to be performed before the agreement 
becomes effective, and which calls for the happening of 
some event or the performance of some act after the 
terms of the contract have been arrested on, before the 
contract shall be binding on the parties; e.g. under 
disability insurance contract, insured is required to sub
mit proof of disability before insurer is required to pay. 
Sherman v. Metropolitan Life Ins. Co., 297 Mass. 330, 8 
N.E.2d 892. A condition subsequent is one annexed to 
an estate already vested, by the performance of which 
such estate is kept and continued, and by the failure or 
non-performance of which it is defeated; or it is a

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CONDITION 
condition referring to a future event, upon the happen
ing of which the obligation becomes no longer binding 
upon the other party, if he chooses to avail himself of 
the condition. Co.Litt. 201; Carroll v. Carroll's Ex'r, 
248 Ky. 386, 58 S.W.2d 670, 672. A condition subse
quent is any condition which divests liability which has 
already attached on the failure to fulfill the condition as 
applied in contracts, a provision giving one party the 
right to divest himself of liability and obligation to 
perform further if the other party fails to meet condi
tion, e.g., submit dispute to arbitration. In property 
law, a condition which causes defeasance of estate on 
failure to perform, e.g. fee simple on condition. In lease, 
a provision giving lessor right to terminate for tenant's 
failure to perform condition. 
Conditions may also be positive (requiring that a speci
fied event shall happen or an act be done) and restrictive 
or negative, the latter being such as impose an obli
gation not to do a particular thing, as, that a lessee shall 
not alien or sub-let or commit waste, or the like. 
They may be single, co pulative, or disjunctive. Those 
of the first kind require the performance of one specified 
thing only; those of the second kind require the per
formance of divers acts or things; those of the third 
kind require the performance of one of several things. 
Conditions may also be independent, dependent, or 
mutual. They belong to the first class when each of the 
two conditions must be performed without any reference 
to the other; to the second class when the performance 
of one condition is not obligatory until the actual per
formance of the other; and to the third class when 
neither party need perform his condition unless the 
other is ready and willing to perform his, or, in other 
words, when the mutual covenants go to the whole 
consideration on both sides and each is precedent to the 
other. 
The following varieties may also be noted: A condi
tion collateral is one requiring the performance of a 
collateral act having no necessary relation to the main 
subject of the agreement. A com pulsory condition is one 
which expressly requires a thing to be done, as, that a 
lessee shall pay a specified sum of money on a certain 
day or his lease shall be void. Co ncurrent conditions are 
those which are mutually dependent and are to be 
performed at the same time or simultaneously. A condi
tion inherent is one annexed to the rent reserved out of 
the land whereof the estate is made, or rather, to the 
estate in the land, in respect of rent. 
French law. Conditions in French law are of the follow
ing types: 
The following peculiar distinctions are made: (1) A 
condition is casuelle when it depends on a chance or 
hazard; (2) a condition is potestative when it depends on 
the accomplishment of something which is in the power 
of the party to accomplish; (3) a condition is mixte when 
it depends partly on the will of the party and partly on 
the will of others; (4) a condition is suspensive when it is 
a future and uncertain event, or present but unknown 
event, upon which an obligation takes or fails to take 
effect; (5) a condition is reso lutoire when it is the event 
294 
which undoes an obligation which has already had effect 
as such. 
Synonymous distinguished. A "condition" is to be dis
tinguished from a limitation, in that the latter may be 
to or for the benefit of a stranger, who may then take 
advantage of its determination, while only the grantor, 
or those who stand in his place, can take advantage of a 
condition. Also, a limitation ends the estate without 
entry or claim, which is not true of a condition. It also 
differs from a conditional limitation. In determining 
whether, in the case of estates greater than estates for 
years, the language constitutes a "condition" or a "con
ditional limitation," the rule applied is that, where an 
estate is so expressly limited by the words of its creation 
that it cannot endure for any longer time than until the 
condition happens on which the estate is to fail, this is 
limitation, but when the estate is expressly granted on 
condition in deed, the law permits it to endure beyond 
the time of the contingency happening, unless the grant
or takes advantage of the breach of condition, by making 
entry. It differs also from a covenant , which can be 
made by either grantor or grantee, while only the grant
or can make a condition. The chief distinction between 
a condition subsequent in a deed and a covenant per
tains to the remedy in event of breach, which, in the 
former case, subjects the estate to a forfeiture, and in 
the latter is merely a ground for recovery of damages. 
A charge is a devise of land with a bequest out of the 
subject-matter, and a charge upon the devisee personal
ly, in respect of the estate devised, gives him an estate 
on condition. A condition also differs from a remainder; 
for, while the former may operate to defeat the estate 
before its natural termination, the latter cannot take 
effect until the completion of the preceding estate. 
Conditional. That which is dependent upon or granted 
subject to a condition. 
As to conditional Acceptance; Appearance; Bequest; 
Contract; Del ivery; Devise; Fee; Guaranty; Judgment; 
Legacy; Limitation; Obligation; Pardon; Privilege; Use; 
and Zoning, see those titles. 
Conditional assault. A threatening gesture with words 
accompanying it expressing a threat on condition, e.g. 
"your money or your life". 
Conditional creditor. In the civil law, a creditor having 
a future right of action, or having a right of action in 
expectancy. 
Conditional indorsement. See Indorsement. 
Conditional intent. Intent to do or not to do something 
if some condition exists. 
Conditionally privileged communication. One made 
in good faith on any subject matter in which the person 
publishing has an interest, or in reference to which he 
has a duty, if made to a person having a corresponding 
interest or duty, even though it contains matter which 
otherwise would be actionable. Cook v. East Shore 
Newspapers, 327 Ill.App. 559, 64 N.E.2d 751, 760. The 
essential elements of a conditionally privileged commu
nication are good faith, an interest to be upheld, a

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295 
statement limited in its scope to such purpose, a proper 
occasion, and pUblication in a proper manner to proper 
persons. Cook v. East Shore Newspapers, 327 IlLApp. 
559, 64 N.E.2d 751. 
Conditional payment. Payment of an obligation only 
on condition that something be done. Generally, right 
is reserved to demand back payment if condition fails. 
Conditional promise. In law of contracts, a promise to 
perform based on condition; held to be valid considera
tion even if condition fails. 
Conditional release. A discharge of obligation based on 
some condition, the failure of which defeats the release. 
Term may also be applied to a substituted form of 
release from custody subject to applicable statutes and 
rules and regulations of board of parole. Humphrey v. 
Wilson, D.C.Mo., 281 F.Supp. 937, 94 1. 
Conditional right. Right to something subject to a 
condition, e.g. parent has right to chastise child on 
condition that the punishment is reasonable. 
Conditional sale contract. Form of sales contract in 
which seller reserves title until buyer pays for goods or 
land, at which time, the condition having been fulfilled, 
title passes to buyer. Such contract under Uniform 
Commercial Code is a purchase money security agree
ment. § 9-105(h). See also Sale. 
Conditional sentence. A sentence to confinement if 
defendant fails to fulfill conditions of probation. 
Conditional will. A will so drawn that it takes effect 
only on happening of specified contingency which be
comes a condition precedent to operation of will. Meth
odist Church of Sturgis Inc. v. Templeton, 254 Miss. 197, 
181 So.2d 129. 
Conditiones qurelibet odiosre; maxime autem contra 
matrimonium et commercium Ik: mdishiyowniyz 
kwiybb�t owdiy6wsiy, mreks�miy 6d�m k6ntr� 
m(i!tr�m6wniy�m et k�m�rsh(iy)�m/. Any conditions 
are odious, but especially those which are against [in 
restraint of] marriage and commerce. 
Condition of employment. Qualification required for a 
particular job; circumstances under which employment 
may be secured and maintained. See also Probation. 
Conditions concurrent. In contract law, conditions 
which must be performed by each party simultaneously; 
e.g. in a cash sale, payment for the goods and delivery 
are conditions concurrent. See also Concurrent condi
tions. 
Conditions of sale. The terms upon which sales are 
made at auction; usually written or printed and exposed 
in the auction room at the time of sale. 
Conditio prrecedens adimpleri debet prius quam se
quatur effectus Ik�ndi sh(iy)ow pr�siydenz redimpliray 
deb�t pray�s kwrem s�kweyt�r �fek t�s/. A condition 
precedent must be fulfilled before the effect can follow. 
Condominia Ikond�miniy� /. In the civil law, co-owner
ships or limited ownerships, such as emphyteusis, super
ficies, pignus, hypo theca, us usfructus, usus, and habita-
CONDUCT 
tio. These were more than mere jura in re aliena, being 
portion of the dominium itself, although they are com
monly distinguished from the dominium strictly so 
called. 
Condominium Ikond�miniy�m /. System of separate 
ownership of individual units in multiple-unit building. 
A single real property parcel with all the unit owners 
having a right in common to use the common elements 
with separate ownership confined to the individual units 
which are serially designated� Kaufman and Broad 
Homes of Long Island, Inc. v. Albertson, 73 Misc.2d 84, 
341 N.Y.S.2d 321, 322. An estate in real property 
consisting of an undivided interest in a portion of a 
parcel of real property together with a separate fee 
simple interest in another portion of the same parcel, in 
essence, condominium ownership is a merger of two 
estates in land into one: the fee simple ownership of 
apartment or unit in a condominium project and tenan
cy in common with other co-owners in the common 
elements. Dutcher v. Owens, Tex., 647 S.W.2d 948, 949. 
The condominium concept was not rooted in English 
common law and most condominiums in the United 
States are formed in accordance with specific state en
abling statutes. As defined by Un i form Condominium 
Act (§ 1-103(7)), is: "Real estate, portions of which are 
designated for separate ownership and the remainder of 
which is designated for common ownership solely by the 
owners of those portions. Real estate is not a condomin
ium unless the undivided interests in the common ele
ment are vested in the unit owners." 
See also Common elements. 
Compare Cooperative. 
Condonacion Ikondownas(i)y6wn/. In Spanish law, the 
remission of a debt, either expressly or tacitly. 
Condonation Ikond�neysh�nl . The conditional re
mission or forgiveness, by means of continuance or re
sumption of marital cohabitation, by one of the married 
parties, of a known matrimonial offense committed by 
the other, that would constitute a cause of divorce; the 
condition being that the offense shall not be' repeated. 
Condonation to constitute valid defense in divorce ac
tion, must be free, voluntary; and not induced by duress 
or fraud. Condonation means pardon of offense, volun
tary overlooking implied forgiveness by treating offend
er as if offense had not been committed. Wilson v. 
Wilson, 14 Ohio App.2d 148, 237 N.E.2d 421, 425. This 
defense has been abolished in those jurisdictions which 
recognize "no fault" divorce. 
Condone Ik�nd6wn /. To make condonation of. 
Conduce. To contribute to as a result. 
Conduct, v. To manage; direct; lead; have direction; 
carry on; regulate; do business. Scholz v. Leuer, 7 
Wash.2d 76, 109 P.2d 294, 301. 
Conduct, n. Personal behavior; deportment; mode of 
action; any positive or negative act.

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CONDUCT 
An action or omission and its accompanying state of 
mind, or, where relevant, a series of acts and omissions. 
Model Penal Code, § 1.1 3. 
See also Disorderly conduct; Tortious. 
Conduct, estoppel by. See Equitable estoppel. 
Conducti actio Ik�nd;}ktay reksh(iy)ow/. In the civil 
law, an action which the hirer (conduc tor ) of a thing 
might have against the letter aocator ). 
Conductio Ik�nd;}k sh(iy)ow/. In the civil law, a hiring. 
Used generally in connection with the term locatio, a 
letting. Locatio et conductio (sometimes united as a 
compound word "locatio-cond uctio "), a letting and hir
ing. 
Conduct money. In English practice, money paid to a 
witness who has been subprenaed on a trial, sufficient to 
defray the reasonable expenses of going to, staying at, 
and returning from the place of trial. 
Conductor. In the civil law, a hirer. 
Conductor operarum Ik�nd,}kt�r op�rer�m /. In the 
civil law, a person who engages to perform a piece of 
work for another, at a stated price. 
Conductus Ik�nd;}kt �s /. A thing hired. 
Conduit concept. An approach the tax law assumes in 
the tax treatment of certain entities and their owners. 
The approach permits specified tax characteristics to 
pass through the entity without losing their identity. 
Under the conduit concept, for example, long-term capi
tal losses realized by a partnership are passed through 
as such to the individual partners. The same result 
does not materialize if the entity is a corporation. Vary
ing forms of the conduit concept are applicable in the 
case of partnerships, trusts, estates, and Subchapter S 
corporations. 
Cone. Area built up by a stream, near the mouth of a 
canyon of boulders, small stones, gravel, sand and other 
detritus. 
Cone and key. In old English law, a woman at fourteen 
or fifteen years of age could take charge of her house 
and receive cone and key; that is, keep the accounts and 
keys. Said by Lord Coke to be cover and keye, meaning 
that at that age a woman knew what in her house 
should be kept under lock and key. 
Confarreatio Ik� nfreriyeysh(iy)ow/. In Roman law, a 
sacrificial rite resorted to by marrying persons of high 
patrician or priestly degree, for the purpose of clothing 
the husband with the manus over his wife; the civil 
modes of effecting the same thing being coemptio (for
mal), and usus mu lieris (informal). 
Confectio Ik� nfeksh(iy)ow/. The making and comple
tion of a written instrument. 
Confederacy. The association or banding together of 
two or more persons for the purpose of committing an 
act or furthering an enterprise which is forbidden by 
law, or which, though lawful in itself, becomes unlawful 
when made the object of the confederacy. More com
monly called a "conspiracy." 
296 
A league or agreement between two or more indepen
dent states whereby they unite for their mutual welfare 
and the furtherance of their common aims. The term 
may apply to a union so formed for a temporary or 
limited purpose, as in the case of an offensive and 
defensive alliance; but it is more commonly used to 
denote that species of political connection between two 
or more independent states by which a central govern
ment is created, invested with certain powers of sover
eignty (mostly external), and acting upon the several 
component states as its units, which, however, retain 
their sovereign powers for domestic purposes and some 
others. See Compact; Confederate states; Federal 
government. 
Confederate states. The band of eleven states formed 
in 1861 which waged war against the United States in 
the War Between the States or Civil War. 
Confederation. A league or compact for mutual sup
port, particularly of nations, or states. Such was the 
colonial government during the Revolution. See Confed
eracy. 
Confederation articles. See Articles of Confederation. 
Conference. A meeting of several persons for delibera
tion, for the interchange of opinion, or for the removal 
of differences or disputes. 
In the practice of legislative bodies, when the two 
houses cannot agree upon a pending measure, each 
appoints a committee of "conference," and the commit
tees meet and consult together for the purpose of remov
ing differences, harmonizing conflicting views, and ar
ranging a compromise which will be accepted by both 
houses. 
Representative assembly of a denomination; associa
tion of athletic teams. 
A personal meeting between the diplomatic agents of 
two or more nations for the purpose of making state
ments and explanations that will obviate the delay and 
difficulty attending the more formal conduct of negotia
tions. 
Confess. To admit as true; to assent to; to concede. To 
admit the truth of a charge or accusation. Usually 
spoken of charges of tortious or criminal conduct. See 
Confession. 
Confessing error. A plea to an assignment of error, 
admitting the same. 
Confessio Ik�nf es(h)(i)yow I. Lat. A confession. Confes
sio in judicio, a confession made in or before a court. 
Confessio facta in judicio omni probatione major est 
Ik� nfes(h)(i)yow frekt� in juwdish(i)yow omniy 
pr�beyshiyowniy meyj�r est!. A confession made in 
court is of greater effect than any proof. 
Confession. A voluntary statement made by a person 
charged with the commission of a crime or misdemean
or, communicated to another person, wherein he ac
knowledges himself to be guilty of the offense charged, 
and discloses the circumstances of the act or the share 
and participation which he had in it. See 18 U.S.C.A. 
§ 3501.

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297 
A statement made by a defendant disclosing his guilt 
of crime with which he is charged and excluding possi
bility of a reasonable inference to the contrary. People 
v. Anderson, 236 Cal.App.2d 419, 46 Cal.Rptr. 1, 7. 
Voluntary statement made by one who is defendant in 
criminal trial at time when he is not testifying in trial 
and by which he acknowledges certain conduct of his 
own constituting crime for which he is on trial; a 
statement which, if true, discloses his guilt of that 
crime. People v. Beverly, 233 Cal.App.2d 702, 43 Cal. 
Rptr. 743, 749. 
Confessions are admissible in evidence if given volun
tarily. 18 U.S.C.A. § 3501. 
See also Interlocking confession; Involu ntary confession; 
Interrogation; Oral confession. 
Cons titutional protections. See Escobedo Rule; Mallor y 
Rul e; Miranda Rule. 
Classification of confessions. Confessions are divided 
into judicial and extrajudicial. The former are such as 
are made before a magistrate or court in the due course 
of legal proceedings; they include confessions made in 
preliminary examinations before magistrates. The lat
ter is one made by the party out of court, or to any 
person, official or otherwise, when made not in the 
course of a judicial examination or investigation. See 
also Extrajudicial. 
An implied confession is where the defendant does not 
plead guilty but indirectly admits his guilt by placing 
himself at the mercy of the court and asking for a light 
sentence. An indirect confession is one inferred from 
the conduct of the defendant. An involuntary confes
sion is one induced by hope, promise, fear, violence, 
torture, or threat. Lyons v. State, 77 Okl.Cr. 197, 138 
P.2d 142, 148; Lyons v. State, 140 P.2d 248. A naked 
confession is an admission of the guilt of the party, but 
which is not supported by any evidence of the commis
sion of the crime. A voluntary confession is one made 
spontaneously by a person accused of crime, free from 
the influence of any extraneous disturbing cause, and in 
particular, not influenced, or extorted by violence, 
threats, or promises. It is the product of an essentially 
free and unconstrained choice by its maker, Interest of 
Ruth, 239 Pa.Super. 453, 360 A.2d 922, 923; and, is 
made with full knowledge of nature and consequences of 
the confession. Martinez v. State, Okl.Cr., 496 P.2d 416, 
421. For criteria used in determining voluntariness, see 
18 U.S.C.A. § 3501(b). 
A judicial confession is a plea of guilty or some 
similar action or conduct in court or in a judicial pro
ceeding. People v. Telio, 1 Ill.App.3d 526, 275 N.E.2d 
222, 226. 
Distinguished from admission. A confession is a state
ment admitting or acknowledging all facts necessary for 
conviction of the crime. An admission, on the other 
hand, is an acknowledgment of a fact or facts tending to 
prove guilt which falls short of an acknowledgment of 
all essential elements of the crime. Gladden v. Uns
worth, 9th Cir., 396 F.2d 373, 375 n. 2; People v. Fitzger
ald, 56 Cal.2d 855, 861, 17 Cal.Rptr. 129, 132, 366 P.2d 
481, 484. 
Confession and avoidance. A plea in confession and 
avoidance is one which avows and confesses the truth of 
CONFIDENTIAL 
the averments of fact in the complaint or declaration, 
either expressly or by implication, but then proceeds to 
allege new matter which tends to deprive the facts 
admitted of their ordinary legal effect, or to obviate, 
neutralize, or avoid them. Sievers v. Brown, 216 Miss. 
801, 63 So.2d 217, 219. 
Confession of defense. In English practice, where de
fendant alleged a ground of defense arising since the 
commencement of the action, the plaintiff could deliver 
confession of such defense and sign judgment for his 
costs up to the time of such pleading, unless it be 
otherwise ordered. Such procedure is now obsolete. 
Confession of judgment. See Cognovit judgment; Judg
ment. 
Confesso, bill taken pro. In equity practice, an order 
which the court of chancery makes when the defendant 
does not file an answer, that the plaintiff may take such 
a decree as the case made by his bill warrants. 
Confessor. A priest who receives auricular confessions 
of sins from persons under his spiritual charge, and 
pronounces absolution upon them. The secrets of the 
confessional were not privileged communications at com
mon law, but are so classified by statute, court decision 
or court rule in most states. See Confidential communi
cation. 
Confessoria actio /konfes6riy� reksh(iy)ow/. Lat. In 
the civil law, an action for enforcing a servitude. 
Confessus in judicio pro judicato habetur, et quo
dammodo sua sententia damnatur /k�nf es�s in juw
dish(iy)ow prow juwd�keytow h�biyt�r, et kwowdre
m�dow s(y)uw� sentensh(iy)� dremneyt�r /. A person 
confessing his guilt when arraigned is deemed to have 
been found guilty, and is, as it were, condemned by his 
own sentence. 
Confide. A synonym of the word "trust"; meaning to 
put into one's trust, keeping, or confidence. 
Confidence. Trust; reliance; relation of trust. Re
liance on discretion of another. In the construction of 
wills, this word is considered peculiarly appropriate to 
create a trust. 
Confidence game. Obtaining of money or property by 
means of some trick, device, or swindling operation in 
which advantage is taken of the confidence which the 
victim reposes in the swindler. The elements of the 
crime of "confidence game" are: (1) an intentional false 
representation to the victim as to some present fact, (2) 
knowing it to be false, (3) with intent that the victim 
rely on the representation, (4) the representation being 
made to obtain the victim's confidence and thereafter 
his money and property, (5) which confidence is then 
abused by defendant. U. S. v. Brown, D.C.App., 309 
A.2d 256, 257. 
For distinction between false pretenses and confidence 
game, see False pretenses. See also Flim-flam. 
Confidential. Intrusted with the confidence of another 
or with his secret affairs or purposes; intended to be 
held in confidence or kept secret; done in confidence.

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CONFIDENTIAL COMMUNICATION 
Confidential communication. Privileged communica
tions such as those between spouses, physician-patient, 
attorney-client, confessor-penitent, etc. Such are privi
leged at the option of the spouse-witness, client-witness 
and penitent-witness. Confidential communication is 
statement made under circumstances showing that 
speaker intended statement only for ears of person ad
dressed; thus if communication is made in presence of 
third party whose presence is not reasonably necessary 
for the communication, it is not privileged. Touma v. 
Touma, 140 N.J.S uper. 544, 357 A.2d 25, 28. State law 
is applied to such privileged communications in federal 
court proceedings. Fed.Evid.Rule 501. See also Commu
nication; Privileged commun ications. 
Confidentiality. State or quality of being confidential; 
treated as private and not for publication. 
Confidential relation. A fiduciary relation. It is a 
peculiar relation which exists between client and attor
ney, principal and agent, principal and surety, landlord 
and tenant, parent and child, guardian and ward, ances
tor and heir, husband and wife, trustee and cestui que 
trust, executors or administrators and creditors, lega
tees, or distributees, appointor and appointee under 
powers, and partners and part owners. In these and 
like cases, the law, in order to prevent undue advantage 
from the unlimited confidence or sense of duty which 
the relation naturally creates, requires the utmost de
gree of good faith in all transactions between the par
ties. It is not confined to any specific association of 
parties. It appears when the circumstances make it 
certain that the parties do not deal on equal terms, but 
on the one side there is an overmastering influence, or, 
on the other, weakness, dependence, or trust, justifiably 
reposed. The mere existence of kinship does not, of 
itself, give rise to such relation. It covers every form of 
relation between parties wherein confidence is reposed 
by one in another, and former relies and acts upon 
representations of the other and is guilty of no derelic
tions on his own part. Peckham v. Johnson, Tex.Civ. 
App., 98 S.W.2d 408, 416. 
Confidential relations are deemed to arise whenever 
two persons have come into such a relation that confi
dence is necessarily reposed by one and the influence 
which naturally grows out of the confidence is possessed 
by the other, and this confidence is abused or the influ
ence is exerted to obtain an advantage at expense of 
confiding party. Ruebsamen v. Maddocks, Me., 340 A.2d 
31, 34. 
See also Fiduciary or confidential relation. 
Confinement. _ State of being confined; shut in; impris
oned; detention in penal institution. Confinement may 
be by either a moral or a physical restraint, by threats 
of violence with a present force, or by physical restraint 
of the person. See also Commitment; Solitary confine
ment. 
Confirm. To complete or establish that which was im
perfect or uncertain; to ratify what has been done 
without authority or insufficiently. To make firm or 
certain; to give new assurance of truth or certainty; to 
298 
put aside past doubt; to give approval to. See also 
Confirmation. 
Confirmare est id firmum facere quod prius infir
mum fuit Ikonf;)rmeriy est id f;}rm;)m feys;)riy kwod 
pray;)s ;)nf;}rm;)m fyuw;)t/. To confirm is to make firm 
that which was before infirm. 
Confirmare nemo potest prius quam jus ei acciderit 
Ikonf;)rmeriy niymow powt;)st pray;)s kwrem j;}S iyay 
reks;)der;)t/. No one can confirm before the right ac
crues to him. 
Confirmatio Ikonf;)rmeysh(iy)ow/. The conveyance of 
an estate, or the communication of a right that one hath 
in or unto lands or tenements, to another that hath the 
possession thereof, or some other estate therein, where
by a voidable estate is made sure and unavoidable, or 
whereby a particular estate is increased or enlarged. 2 
Bl.Comm. 32l;>. 
ConiIrmatio·chartarum Ikonf;)rmeysh(iy)ow kartar;)m/. 
Lat. Confirmation of the charters. A statute passed in 
the 25 Edw. I., whereby the Great Charter is declared to 
be allowed as the common law; all judgments contrary 
to it are declared void; copies of it are ordered to be sent 
to all cathedral churches and read twice a year to the 
people; and sentence of excommunication is directed to 
be as constantly denounced against all those that, by 
word or deed or counsel, act contrary thereto or in any 
degree infringe it. 1 Bl.Comm. 128. 
Confirmatio crescens Ikonf;)rmeysh(iy)ow kres;)nz/. 
An enlarging confirmation; one which enlarges a right
ful estate. 
Confirmatio diminuens Ikonf;)rmeysh(iy)ow d;)minyu
wenzl. A diminishing confirmation. A confirmation 
which tends and serves to diminish and abridge the 
services whereby a tenant doth hold, operating as a 
release of part of the services. 
Confirmatio est nulla ubi donum prrecedens est inva
lidum Ikonf;)rmeysh(iy)ow est n;}l;) yuwbay down;)m 
pr;)siyden(d)z est invrel;)d;)m/. Confirmation is void 
where the preceding gift is invalid. 
Confirmation. A contract, or written memorandum 
thereof, by which that which was infirm, difficult of 
proof, void, imperfect, or subject to be avoided is ratified, 
rendered valid and binding, made firm and unavoidable. 
To give formal approval. Act or process of confirming. 
See also Approval; Ratification; Verification. 
A conveyance of an estate or right in esse, whereby a 
voidable estate is made sure and unavoidable, or where
by a particular estate is increased. 
The ratification or approval of executive acts by a 
legislature or one house. In order to be valid, Presi
dential appointments of important officers of the United 
States require approval by a majority of the Senate, and 
treatises must be approved by two-thirds of the Senate. 
Art. II, § 2, U.S.C onst. 
A formal memorandum delivered by the customers or 
suppliers of a company to its independent auditor verify
ing the amounts shown as receivable or payable. The

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confirmation document is originally sent by the auditor 
to the customer. 
In bankruptcy, refers to a judicial approval of a Bank
ruptcy Code Chapter 11, 12, or 13 plan. 
Confirmation of sale. The confirmation of a judicial 
sale by the court which ordered it is a signification in 
some way (usually by the entry of an order) or the 
court's approval of the terms, price, and conditions of 
the sale. 
Confirmatio omnes supplet defectus, licet id quod 
actum est ab initio non valuit Ikonf;}rmeysh(iy)ow 
6mniy s�pbt d;}fekt;}s, lis;}t id kwod rekt;}m est reb 
;}nish(iy)ow non vrelyuw;}t/. Confirmation supplies all 
defects, though that which had been done was not valid 
at the beginning. 
Confirmatio perficiens Ikonf;}rmeysh(iy)ow p;}fishi
yenz/. A confirmation which makes valid a wrongful 
and defeasible title, or makes a conditional estate abso
lute. 
Confirmat usum qui tollit abusum Ikonf�rm;}t yuwz;}m 
kwliy t6bt ;}byuwz;}m/. He confirms the use [of a thing] 
who removes the abuse [of it]. 
Confirmavi Ikonf ;}rmeyviy I. Lat. I have confirmed. 
The emphatic word in the ancient deeds of confirmation. 
Confirmed credit. In commercial law, means that the 
credit must carry the direct obligation of an agency 
which does business in the seller's financial market. 
U.C.C. § 2-325. 
Confirmee Ikonf;}rmiy I. The grantee in a deed of confir
mation. 
Confirming bank. A bank which engages either that it 
will itself honor a credit already issued by another bank 
or that such a credit will be honored by the issuer or a 
third bank. U.C.C. § 5-103. 
Confirmor Ik;}nfirm;}r/. The grantor in a deed of confir
mation. 
Confiscable Ik6nfisk;}b;}lIk;}nfisk;}b;}1I. Capable of being 
confiscated or suitable for confiscation; liable to forfei
ture. 
Confiscare Ikonf;}skeriy/. In civil and old English law, 
to confiscate; to claim for or bring into the fisc, or 
treasury. 
Confiscate Ik6nf;}skeyt/. To appropriate property to the 
use of the government. To adjudge property to be 
forfeited to the public; to seize and condemn private 
forfeited property to public use. To take property from 
enemy in time of war. See also Confiscation; Forfeiture. 
Confiscation Ikonf ;}skeysh;}n/. Act of confiscating. The 
seizure of private property by the government without 
compensation to the owner, often as a consequence of 
conviction for crime, or because possession or use of the 
property was contrary to law. The provisions of due 
process prohibit the confiscation of property without 
compensation except where the property is taken in the 
valid execution of the police power. See also Condemna-
CONFLICT OF LAWS 
tion; Confiscate; Eminent domain; Expropriation; Forfei
ture; Seizure. 
Confiscation acts. Certain acts of congress enacted 
during the process of the civil war (1861 and 1862) in the 
exercise of the war powers of the government and meant 
to strengthen its hands and aid in suppressing the 
rebellion, which authorized the seizure, condemnation, 
and forfeiture of "property used for insurrectionary pur
poses". 
Confiscation cases. The name given to a group of 
fifteen cases decided by the United States supreme court 
in 1868, on the validity and construction of the confisca
tion acts of congress. Reported in 7 Wall. 454, 19 L.Ed. 
196. 
Confiscatory rates. With respect to utilities, are rates 
which do not afford a reasonable return on value of 
property at time it is used in public service; rates which 
do not afford net return sufficient to preserve utility's 
property and to attract capital necessary to enable utili
ty to discharge its public duties. 
Confisk. An old form of confiscate. 
Confitens reus Ik6nf;}tenz riy;}s/. An accused person 
who admits his guilt. 
Conflicting evidence. Evidence offered by plaintiff and 
defendant, or prosecutor and defendant which is incon
sistent and cannot be reconciled. 
Conflict of authority. A division between two or more 
courts (generally courts of last resort) on some legal 
principal or application of law. May also refer to dis
parity between authorities on a subject. See also Choice 
of law; Conflict of laws. 
Conflict of interest. Term used iri connection with 
public officials and fiduciaries and their relationship to 
matters of private interest or gain to them. Ethical 
problems connected therewith are covered by statutes in 
most jurisdictions and by federal statutes on the federal 
level. The Code of Professional Responsibility and Mod
el Rules of Professional Conduct set forth standards for 
actual or potential conflicts of interest between attorney 
and client. Generally, when used to suggest disqualifi
cation of a public official from performing his sworn 
duty, term "conflict of interest" refers to a clash be
tween public interest and the private pecuniary interest 
of the individual concerned. Gardner v. Nashville 
Housing Authority of Metropolitan Government of 
Nashville and Davison County, Tenn., C.A.Tenn., 514 
F.2d 38, 41. A situation in which regard for one duty 
tends to lead to disregard of another. U.S. v. Miller, 
C.A.Mass., 463 F.2d 600, 602. 
A conflict of interest arises when a government em
ployee's personal or financial interest conflicts or ap
pears to conflict with his official responsibility. 18 
U.S.C.A. § 203 et seq. 
Conflict of laws. Inconsistency or difference between 
the laws of different states or countries, arising in the 
case of persons who have acquired rights, incurred obli
gations, injuries or damages, or made contracts, within

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CONFLICT OF LAWS 
the territory of two or more jurisdictions. Hence, that 
branch of jurisprudence, arising from the diversity of 
the laws of different nations, states or jurisdictions, in 
their application to rights and remedies, which recon
ciles the inconsistency, or decides which law or system is 
to govern in the particular case, or settles the degree of 
force to be accorded to the law of another jurisdiction, 
(the acts or rights in question having arisen under it) 
either where it varies from the domestic law, or where 
the domestic law is silent or not exclusively applicable 
to the case in point. Restatement, Second, Conflicts of 
Law, § 2. See also Center of gravity doctrine; Choice of 
law; Grouping of contacts; Kilberg doctrine; Lex celebra
tionis; Lex contractus; Lex fori; Lex loci; Lex loci celebra
tionis; Lex loci contractus; Lex situs; Lex solutionis; Lex 
validitatis; Renvoi doctrine. 
Conflict of personal laws. Term used to describe con
flicts within a particular state arising from application 
of general law to racial and religious groups which have 
their own laws, e.g. tribal laws of the Indians. 
Conformed copy. An exact copy of a document on 
which has been written explanations of things that 
could not or were not copied; e.g. written signature 
might be replaced on conformed copy with notation that 
it was signed by the person whose signature appears on 
the originaL 
Conforming. In law of sales, goods or conduct including 
any part of a performance are conforming or conform to 
the contract when they are in accordance with the 
obligations under the contract. U.C.C. § 2-106(2). 
Conforming use. In zoning and land use planning, a 
use of a structure which is in conformity with those uses 
permitted by the particular zoning classification of the 
area. Compare Nonconforming use. 
Conformity. Correspondence in form, manner, or use; 
agreement; harmony; congruity. 
Conformity Act, or statute. A term used to designate 
Act June 1, 1872, c. 255, § 5, 17 Stat. 197, providing that 
the practice, pleadings, and forms and modes of proceed
ing in civil causes, other than equity and admiralty 
causes, in the federal district courts shall conform, as 
near as may be, to those existing in like causes in the 
courts of the state within which such district courts are 
held. Since the adoption of the Federal Rules of Civil 
Procedure, 28 U.S.C.A., the Conformity Act is no longer 
effective. Hydraulic Press Mfg. Co. v. Williams, White 
& Co., C.C.A.Ill.1947, 165 F.2d 489. 
Conformity, Bill of. See Bill (Equity pleading and prac
tice). 
Conformity hearing. Hearing ordered by court to de
termine whether judgment or decree directed to be 
prepared by the prevailing party conforms with decision 
of court. Commonly after court makes its findings it 
directs prevailing party to draw judgment or decree in 
conformity with such findings and decision. 
Confrairie /konfreriy/k.�mfreriy/. Fr. In old English 
law, a fraternity, brotherhood, or society. 
300 
Confreres Ikonfrerz/k;mfrerz/. Brethren in a religious 
house; fellows of one and the same society. 
Confrontation. In criminal proceedings, the accused 
has a right to be "confronted with the witnesses against 
him." This Sixth Amendment right consists of the act 
of setting a witness face to face with the accused, in 
order that the latter may make any objection he has to 
the witness, or that the witness may identify the ac
cused; and, does not mean merely that witnesses are to 
be made visible to the accused, but imports the constitu
tional privilege to cross-examine them. In fact, the 
essence of the right of confrontation is the right to 
cross-examination. Davis v. Alaska, 415 U.S. 308, 94 
S.Ct. 11 05, 39 L.Ed.2d 347. A disruptive defendant may, 
however, lose his right to be present in the courtroom, 
and, as a result, lose his right to confront witnesses. 
Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 
353. 
Confrontation clause. See Confrontation. 
Confusio Ik:mf yuwz(h)(i)yow/. In the civil law, the in
separable intermixture of property belonging to differ
ent owners; it is properly confined to the pouring to
gether of fluids, but is sometimes also used of a melting 
together of metals or any compound formed by the 
irrecoverable commixture of. different substances. It is 
distinguished from commixtion by the fact that in the 
latter case a separation may be made, while in a case of 
confusio there cannot be. 2 BLComm. 405. 
Confusion. This term, as used in the civil law and in 
compound terms derived from that source, means a 
blending or intermingling, and is equivalent to the term 
"merger" as used at common law. To mix or blend so 
that things cannot be distinguished. Spangler Candy 
Co. v. Crystal Pure Candy Co., D.C.IlL, 235 F.Supp. 18, 
27. The mixing together of goods of two or more owners 
so that the independent goods cannot be identified. See 
also Commingle. 
Confusion of boundaries. The title of that branch of 
equity jurisdiction which relates to the discovery and 
settlement of conflicting, disputed, or uncertain bound
aries. 
Confusion of debts. An obsolete term which refers to a 
mode of extinguishing a debt, by the concurrence in the 
same person of two qualities or adverse rights to the 
same thing which mutually destroy each other. This 
may occur in several ways, as where the creditor be
comes the heir of the debtor, or the debtor the heir of 
the creditor, or either accedes to the title of the other by 
any other mode of transfer. 
Confusion of goods. Results when goods belonging to 
two or more owners become intermixed to the point 
where the property of any of them no longer can be 
identified except as part of a mass of like goods. John
son v. Covey, 1 Utah 2d 180, 264 P.2d 283. See also 
Commingle. 
Confusion of rights. A union of the qualities of debtor 
and creditor in the same person. The effect of such a

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union is, generally, to extinguish the debt. Baylor Univ
ersity v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094, 1101. 
Confusion of titles. A civil-law expression, synonymous 
with "merger," as used in the common law, applying 
where two titles to the same property unite in the same 
person. 
Confute Ik:mf yuwt/. To prove to be false, defective, or 
invalid. 
Con game. A swindle or any arrangement in which a 
person is deliberately defrauded because of his trust in 
the one who is swindling. See also Confidence game; 
Flim-flam. 
Conge 1 konjey/konzhey I. Fr. In French law, permis
sion, leave, license; a passport or clearance to a vessel; 
a permission to arm, equip, or navigate a vessel. 
Congeable Ikonjiy;}b;}l/. L. Fr. Lawful; permissible; 
allowable. 
Conge d'accorder Ikonzhey dakordey I. Leave to ac
cord. A permission granted by the court, in the old 
process of levying a fine, to the defendant to agree with 
the plaintiff. 
Conge d'emparler Ikonzhey domparley I. Leave to im
parl. The privilege of an imparlance aicentia loquendi }. 
3 Bl.Comm. 299. 
Conge d'eslire Ikonzhey delir/. Also spelled conge 
d'elire, conge delire. A permission or license from the 
British sovereign to a dean and chapter to elect a bishop, 
in time of vacation; or to an abbey or priory which is of 
royal foundation, to elect an abbot or prior. 
Congenital. A condition present at birth. 
Congildones Ikol)gildowniyz/. In Saxon law, fellow
members of a guild. 
Congius Ikonjiy ;}s/. An ancient measure containing 
about a gallon and a pint. 
Conglomerate Ik;}nglom;}r;}t/. A corporation that has 
diversified its operations usually by acquiring unrelated 
enterprises in widely varied industries. Such individual 
businesses are normally controlled by a single corporate 
entity. 
Conglomerate merger. Merger among firms which op
erate in separate and distinct markets; e.g. merger of 
companies with different product lines. A merger in 
which there are no economic relationships between the 
acquiring and the acquired firm. Kennecott Copper 
Corp. v. F. T. C., C.A.lO, 467 F.2d 67, 75. A combination 
of two or more companies in which neither competes 
directly with the other and no buyer-seller relationship 
exists. A merger other than a horizontal or vertical 
merger. U. S. v. International Tel. & Tel. Corp., D.C. 
Conn., 306 F.Supp. 766, 774. See also Conglo merate; 
Merger. 
Congregate. To come together; to assemble; to meet. 
Congregation. An assembly or gathering; specifically, 
an assembly or society of persons who together consti
tute the principal supporters of a particular parish, or 
CONJECTIO CAUSlE 
habitually meet at the same church for religious exercis
es. 
Congress 1 kOl)gr;}s 1 . Formal meeting of delegates or 
representatives. The Congress of the United States was 
created by Article I, Section 1, of the Constitution, 
adopted by the Constitutional Convention on September 
17, 1787, providing that "All legislative Powers herein 
granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and House of 
Representatives." The first Congress under the Consti
tution met on March 4, 1789, in the Federal Hall in New 
York City. The membership then consisted of 20 Sena
tors and 59 Representatives. See House of Representa
tives; Senate. 
Congressional apportionment. See Apportionment 
(Representatives). 
Congressional committee. A committee of the House 
of Representatives or of the Senate or a joint committee 
formed for some particular public purpose. 
Congressional district. A geographical unit of a State 
from which one member of the House of Representatives 
is elected. 
Congressional immunity. See Legislative immuni ty. 
Congressional powers. The authority vested in the 
Senate and House of Representatives to enact laws, etc. 
as provided in U.S. Const., Art. I. 
Congressional Record. Proceedings of Congress are 
published in the Congressional Record, which is issued 
daily when Congress is in session. Publication of the 
Record began March 4, 1873; it was the first series 
officially reported, printed, and published directly by the 
Federal Government. The Daily Digest of the Congres
sional Record, printed in the back of each issue of the 
Record, summarizes the proceedings of that day in each 
House, and before each of their committees and subcom
mittees, respectively. The Digest also presents the legis
lative program for each day, and at the end of the week, 
gives the program for the following week. Its publica
tion was begun March 17, 1947. Members of Congress 
are allowed to edit their speeches before printing and 
may insert material never actually spoken by securing 
from their respective houses leave to print or to extend 
their remarks. 
Congressman. Strictly, a member of the Congress of the 
United States. But the common tendency is to apply 
this term only to a member of the House of Representa
tives, as distinguished from a senator. 
Congressus Ik;}l)gres;}s/. The extreme practical test of 
the truth of a charge of impotence brought against a 
husband by a wife. It is now disused. 
Conjectio Ik;}njeksh(iy)ow/. In the civil law of evidence, 
a throwing together. Presumption; the putting of 
things together, with the inference drawn therefrom. 
Conjectio causa! Ik;}njeksh(iy)ow koziy/. In the civil 
law, a statement of the case. A brief synopsis of the 
case given by the advocate to the judge in opening the 
trial.

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CONJECTURAL CHOICE, RULE OF 
Conjectural choice, rule of Iruwl �v k�n jekch�r�l 
choys/. Where all theories of causation rest only on 
conjecture, no jury question is presented. 
Conjecture. A slight degree of credence, arising from 
evidence too weak or too remote to cause belief. Suppo
sition or surmise. The idea of a fact, suggested by 
another fact; as a possible cause, concomitant, or result. 
An idea or notion founded on a probability without any 
demonstration of its truth; an idea or surmise inducing 
a slight degree of belief founded upon some possible, or 
perhaps probable fact of which there is no positive 
evidence. Oklahoma City v. Wilcoxson, 173 Okl. 433, 48 
P.2d 1039, 1043. An explanation consistent with but 
not deducible as a reasonable inference from known 
facts or conditions. In popular use, synonymous with 
"guess." Also, the bringing together of the circumstanc
es, as well as the result obtained. 
Conjoint robbery. Where the act is committed by two 
or more persons. 
Conjoints. Persons married to each other. 
Conjudex I konjuwdeks I . In old English law, an associ
ate judge. 
Conjugal Ikonj�g�l/. Of or belonging to marriage or the 
married state; suitable or appropriate to the married 
state or to married persons; matrimonial; connubial. 
Conjugal rights. Matrimonial rights; the right which 
husband and wife have to each other's society, comfort, 
and affection. See Consortium. 
Conjugium Ik�njuwjiy�m/. One of the names of mar
riage, among the Romans. 
Conjuncta Ik�n j�IJkt�/. In the civil law, things joined 
together or united; as distinguished from disjuncta, 
things disjoined or separated. 
Conjunctim Ik�nj�IJkt�m /. Lat. In old English law, 
jointly. 
Conjunctim et divisim Ik�nj�IJkt�m et d�viz�m/. L. 
Lat. In old English law, jointly and severally. 
Conjunctio Ik�nj�IJksh(iy)ow/. In the civil law, conjunc
tion; connection of words in a sentence. 
Conjunctio mariti et feminre est de jure naturre 
Ik�nj�IJksh(iy)ow m�rayty �t fem�niy est diy juriy 
n�tyuriy I. The union of husband and wife is of the law 
of nature. 
. 
Conjunctive. Connecting in a manner denoting union. 
A grammatical term for particles which serve for 
joining or connecting together. Thus, the word "and" is 
called a "con junctive," and "or" a "disjunctive," con
junction. 
Conjunctive denial. Where several material facts are 
stated conjunctively in the complaint, an answer which 
undertakes to deny their averments as a whole, conjunc
tively stated, is called a "conjunctive denial." 
Conjunctive obligation Ik:mj�IJkt�v obl�geysh�n/. See 
Obligation. 
302 
Conjuratio Ikonj�reysh(iy)ow/. In old English law, a 
swearing together; an oath administered to several to
gether; a combination or confederacy under oath. 
In old European law, a compact of the inhabitants of a 
commune, or municipality, confirmed by their oaths to 
each other and which was the basis of the commune. 
Conjuration Ikonj�rey sh�n/. In old English law, a plot 
or compact made by persons combining by oath to do 
any public harm. 
The offense at common law of having conference or 
commerce with evil spirits, in order to discover some 
secret, or effect some purpose. The English Witchcraft 
Act of 1735, which made conjuration an offense, was 
repealed by the Fraudulent Mediums Act of 1951. 
Con jurator Ikonj�rey t�r/. In old English law, one who 
swears or is sworn with others; one bound by oath with 
others; a compurgator; a conspirator. 
Connect. To join or fasten together as by something 
intervening; to associate as in occurrence or in idea; to 
combine; to unite or link together, as in an electrical 
circuit; to establish a bond or relation between; to meet 
or make connections for transference of passengers or 
change of means of communication. 
Connected. Joined; united by junction, by an interven
ing substance or medium, by dependence or relation, or 
by order in a series. 
Connecting carrier. One of several common carriers 
whose united lines or parts constitute the route over 
which shipment is to pass, and which participates in 
transportation of such shipment as a common carrier 
furnishing a necessary link in transportation. Herman 
v. Railway Exp. Agency, 17 N.J.Super. 10, 85 A.2d 284. 
Connecting factors. In conflict of laws, legal categories 
such as the place of making a contract which serve to 
determine the choice of law in a particular case. 
Connecting up doctrine. A thing may be put into 
evidence (including testimony) subject to its being con
nected up with later evidence that will show its rele
vance. 
Connection. The state of being connected or joined; 
union by junction, by an intervening substance or medi
um, by dependence or relation, or by order in a series. 
Connections. Relations by blood or marriage, but more 
commonly the relations of a person with whom one is 
connected by marriage. In this sense, the relations of a 
wife are "connections" of her husband. The term is 
vague and indefinite. 
Connexite Ikoneksiyt ey/. In French law, this exists 
when two actions are pending which, although not iden
tical as in lis pendens, are so nearly similar in object 
that it is expedient to have them both adjudicated upon 
by the same judges. 
Connexity. Nexus or connection; for purposes of ac
quiring personal jurisdiction over a foreign corporation, 
this refers to the requirement that the cause of action 
arise out of the transaction or operation connected with

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303 
or incidental to the activities of a foreign corporation in 
the state. Kravitz v. Gebrueder Pletscher Druck-Gus
swaremfabrik, Fla.App. 3 Dist., 442 So.2d 985, 987. 
Connivance Ik:mayv:m(t)s /. The secret or indirect con
sent or permission of one person to the commission of an 
unlawful or criminal act by another. A winking at; 
voluntary blindness; an intentional failure to discover 
or prevent the wrong; forbearance or passive consent. 
Pierce v. Crisp, 260 Ky. 519, 86 S.W.2d 293, 296. 
As constituting defense in divorce action, is plaintiffs 
corrupt consent, express or implied, to offense charged 
against defendant. Muir v. Muir, Del.Super., 7 Terry 
578, 86 A.2d 857, 858. This defense has been abolished 
by many states with the enactment of no-fault divorce 
laws. 
Connive Ik:mayv I. To co-operate secretly with, or to 
have a secret or clandestine understanding with. To 
take part or co-operate privily with another, to aid or 
abet. To look upon with secret favor; it implies both 
knowledge and assent, either active or passive. See 
Connivance. 
Connoissement Ikoneysmon /. In French law, an in
strument, signed by the master of a ship or his agent, 
containing a description of the goods loaded on a ship, 
the persons who have sent them, the persons to whom 
they were sent, and the undertaking to transport them; 
similar to the English and American bill of lading. 
Connubium Ik:m(y)uwbiy;}m/. In the civil law, mar
riage. Among the Romans, a lawful marriage as distin
guished from "concubinage" (q.v.), an inferior marriage. 
Conocimiento Ikonosiym(i)yentow/. In Spanish law, a 
bill of lading. In the Mediterranean ports it is called 
"poliza de cargamiento. " 
In Spanish law, a recognizance. 
Conpossessio Ikomp;}zesh(iy)ow/. In civil law, a joint 
possession. 
Conquereur IkoIJk;}r;}r/. In Norman and old English 
law, the same as "conqueror" (q.v.). 
Conqueror. In old English and Scotch law, the first 
purchaser of an estate; he who first brought an estate 
into his family, or into the family owning it. 2 Bl. 
Comm. 242, 243. 
Conquest IkoIJkwest /. In feudal law, acquisition by 
purchase; any method of acquiring the ownership of an 
estate other than by descent. Also an estate acquired 
otherwise than by inheritance. 
In international law, the acquisition of the sovereignty 
of a country by force of arms, exercised by an indepen
dent power which reduces the vanquished to the submis
sion of its empire. To conquer a territory or nation by 
means of force. 
Conquestor I kOIJkwest;}r I konkwest;}r I. Conqueror. 
The title given to William of Normandy. 
Conquets Ik;}IJkwests/k;}nkets/. In French law, the 
name given to every acquisition which the husband and 
wife, jointly or severally, make during the conjugal 
CONSCIENCE 
community. Thus, whatever is acquired by the husband 
and wife, either by his or her industry or good fortune, 
inures to the extent of one-half for the benefit of the 
other. In Louisiana, these gains are called acquets. 
Conquisitio IkoIJkw;}zish(iy)ow/. In feudal and old Eng
lish law, acquisition. 2 Bl.Comm. 242. 
Conquisitor Ik;}IJkw;}zayt;}r/. In feudal law, a purchas
er, acquirer, or conqueror. 2 Bl.Comm. 242, 243. 
Consanguineus Ikons;}IJgwiniy;}s/. Lat. A person relat
ed by blood; a person descended from the same common 
stock. 
Consanguineus est quasi eodem sanguine natus 
Ikons;}IJgwiniy;}s est kweysay iyowd;}m sreIJgw;}niy 
neyt;}s/. A person related by consanguinity is, as it 
were, sprung from the same blood. 
Consanguineus frater Ikons;}IJgwiniy;}s freyt;}r I. In civ
il and feudal law, a half-brother by the father's side, as 
distinguished from {rater uterinus, a brother by the 
mother's side. 2 Bl.Comm. 23l. 
Consanguinity IkonsreIJgwin;}diy I. Kinship; blood rela
tionship; the connection or relation of persons descend
ed from the same stock or common ancestor. Consan
guinity is distinguished from "affinity," which is the 
connection existing in consequence of a marriage, be
tween each of the married persons and the kindred of 
the other. 
Lineal and collateral consangu inity. Lineal consanguin
ity is that which subsists between persons of whom one 
is descended in a direct line from the other, as between 
son, father, grandfather, great-grandfather, and so up
wards in the direct ascending line; or between son, 
grandson, great-grandson, and so downwards in the di
rect descending line. Collateral consanguinity is that 
which subsists between persons who have the same 
ancestors, but who do not descend (or ascend) one from 
the other. Thus, father and son are related by lineal 
consanguinity, uncle and nephew by collateral sanguini
ty. 
Conscience. The moral sense; the faculty of judging the 
moral qualities of actions, or of discriminating between 
right and wrong; particularly applied to one's percep
tion and judgment of the moral qualities of his own 
conduct, but in a wider sense, denoting a similar applica
tion of the standards of morality to the acts of others. 
The sense of right and wrong inherent in every person 
by virtue of his existence as a social entity; good con
science being a synonym of equity. In law, especially 
the moral rule which requires probity, justice, and hon
est dealing between man and man, as when we say that 
a bargain is "against conscience" or "unconscionable," 
or that the price paid for property at a forced sale was so 
inadequate as to "shock the conscience." This is also 
the meaning of the term as applied to the jurisdiction 
and principles of decision of courts of chancery, as in 
saying that such a court is a "court of conscience," that 
it proceeds "according to conscience," or that it has 
cognizance of "matters of conscience."

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CONSCIENCE, COURTS OF 
Conscience, courts of. In English law, courts, not of 
record, constituted by act of parliament in the city of 
London, and other towns, for the recovery of small 
debts; otherwise and more commonly called "Courts of 
Requests." Such courts have been superseded by county 
courts. 
Conscience of the court. When an issue is sent out of 
chancery to be tried at law, to "inform the conscience of 
the court," the meaning is that the court is to be 
supplied with exact and dependable information as to 
the unsettled or disputed questions of fact in the case, in 
order that it may proceed to decide it in accordance with 
the principles of equity and good conscience in the light 
of the facts thus determined. Watt v. Starke, 101 V.S. 
247, 25 L.Ed. 826. This procedure is now obsolete with 
the merger of law and equity into a single cause of 
action. 
Conscience, right of. As used in some constitutional 
provisions, this phrase is equivalent to religious liberty 
or freedom of conscience. 
Conscientia dicitur a con et scio, quasi scire cum deo 
Ikons(h)iyensh(iy);) dis;)t;)r ey kon et sayow, kweysay 
sayriy k;}m diyow I. Conscience is called from con and 
scio, to know, as it were, with God. 
Conscientious objector. One who, by reason of reli
gious training and belief, is conscientiously opposed to 
participation in war. Such person need not be a mem
ber of a religious sect whose creed forbids participation 
in war to be entitled to classification as a conscientious 
objector. V. S. v. Bowles, C.C.A.N.J., 131 F.2d 818. It is 
sufficient if such person has a conscientious scruple 
against war in any form. V. S. ex reL Phillips v. 
Downer, C.C.A.N.Y., 135 F.2d 521, 524, 525. Such objec
tion must however be shown to be sincere. V. S. v. 
Miller, D.C.N.D., 337 F.Supp. 1402, 1403. In lieu of 
active military service, such person is subject to civilian 
work contributing to the national health, safety or inter
est. 50 V.S.C.A. App. § 456(J). 
Conscientious parallelism. Refers to the situation al
leged to result in markets where there are few sellers 
and where, although lacking in an express agreement, 
the sellers appear to establish their prices in a "con
sciously parallel" fashion; also known as the "interde
pendence theory" of oligopoly pricing. Shapiro v. Gen
eral Motors Corp., D.C.Md., 472 F.Supp. 636, 647. 
Conscientious scruple. A conscientious scruple against 
taking an oath, serving as a juror in a capital case, doing 
military duty, or the like, is an objection or repugnance 
growing out of the fact that the person believes the 
thing demanded of him to be morally wrong, his con
science being the sole guide to his decision; it is thus 
distinguished from an "objection on principle," which is 
dictated by the reason and judgment, rather than the 
moral sense, and may relate only to the propriety or 
expediency of the thing in question. 
Conscription. Compulsory enrollment and induction 
into military service; drafted. 
304 
Consecrate. In ecclesiastical law, to dedicate to sacred 
purposes, as a bishop by imposition of hands, or a 
church or churchyard by prayers, etc. Consecration is 
performed by a bishop or archbishop. 
Consecratio est periodus electionis; electio est 
prreambula consecrationis Ikons�kreysh(iy)ow est pi
riyowd;)s ;)lekshiyown;)s; ;)leksh(iy)ow est priyremby;)l;) 
kons�kreyshiyown�s/. Consecration is the termination 
of election; election is the preamble of consecration. 
Consecutive. Successive; succeeding one another in 
regular order; to follow in uninterrupted succession. 
Consecutive sentences. When one sentence of confine
ment is to follow another in point of time, the second 
sentence is deemed to be consecutive. May also be 
applied to suspended sentences. Also called "from and 
after" sentences. See also Sentence. 
Concedo Ikonseyoow I. Sp. A term used in conveyances 
under Mexican law, equivalent to the English word 
"grant." 
Conseil de famille Ikonsey d;) famiy I. In French law, a 
family counciL Certain acts require the sanction of this 
body. For example, a guardian can neither accept nor 
reject an inheritance to which the minor has succeeded 
without its authority (Code Nap. 461); nor can he accept 
for the child a gift inter vivos without the like authority 
(Code Nap. 463). 
Conseil de prudhommes Ikonsey d;) pruwdom/. In 
French law, one of a species of trade tribunals, charged 
with settling differences between masters and workmen. 
They endeavor, in the first instance, to conciliate the 
parties. In default, they adjudicate upon the questions 
in dispute. Their decisions are final up to 200(. Beyond 
that amount, appeals lie to the tribunals of commerce. 
Conseil d'etat Ikonsey deyta/. Council of state. One of 
the oldest of French institutions, its origin dating back 
to 1302. It decides or advises upon state questions and 
measures proposed for legislation, submitted to it by the 
President of the Republic, by the members of the Cabi
net, and by Parliament. 
Conseil judiciaire Ikonsey zhudis(i)yer/. In French law, 
when a person has been subjected to an interdiction on 
the ground of his insane extravagance, but the interdic
tion is not absolute, but limited only, the court of first 
instance, which grants the interdiction, appoints a coun
cil, called by this name, with whose assistance the party 
may bring or defend actions, or compromise the same, 
alienate his estate, make or incur loans, and the like. 
Consensual contract Ik;)nsenshuw�l kontrrekt/. A 
term derived from the civil law, denoting a contract 
founded upon and completed by the mere consent of the 
contracting parties, without any external formality or 
symbolic act to fix the obligation. See also Contract. 
Consensual marriage Ik:msenshuw�l mrer�j/. Marriage 
resting simply on consent per verba de p rresenti, be
tween competent parties. See also Common-law mar
riage.

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305 
Consensus ad idem Ik:msens;)s red ayt;)m/. An agree
ment of parties to the same thing; a meeting of minds. 
Consensus est voluntas plurium ad quos res pertinet, 
simul juncta Ik;)nSEmS;)S est v;)l;}ntres phiriy;)m red 
kwows riyz p;}rt;)n;)t, saym;)l j;}IJkt;)I . Consent is the 
conjoint will of several persons to whom the thing be
longs. 
Consensus facit legem Ik;)nsens;)s feys;)t liyj;)m/. Con
sent makes the law. (A contract is law between the 
parties agreeing to be bound by it.) 
Consensus, non concubitus, facit nuptias vel matri
monium, et consentire non possunt ante annos nu
biles Ik;)nsens;)s, non k;)nkyuwb;)t;)s, feys;)t nepshiy;)s 
vel mretr;)mown(i)y;)m, et kons;)ntayriy non pos;)nt rentiy 
renows n(y)uwb;)liyz/. Consent, and not cohabitation (or 
coition), constitutes nuptials or marriage, and persons 
cannot consent before marriageable years. 1 Bl.Comm. 
434. 
Consensus tollit errorem Ik;)nsens;)s tol;)t ;)ror;)m/. 
Consent (acquiescence) removes mistake. 
Consensus voluntas multorum ad quos res pertinet, 
simul juncta Ik;)nsens;)s v;)l;}ntres m;)ltor;)m red kwows 
riyz p;}rt;)n;)t saym;)l j;}IJkt;)I . Consent is the united will 
of several interested in one subject-matter. 
Consent. A concurrence of wills. Voluntarily yielding 
the will to the proposition of another; acquiescence or 
compliance therewith. Agreement; approval; permis
sion; the act or result of coming into harmony or accord. 
Consent is an act of reason, accompanied with delibera
tion, the mind weighing as in a balance the good or evil 
on each side. It means voluntary agreement by a per
son in the possession and exercise of sufficient mental 
capacity to make an intelligent choice to do something 
proposed by another. It supposes a physical power to 
act, a moral power of acting, and a serious, determined, 
and free use of these powers. Consent is implied in 
every agreement. It is an act unclouded by fraud, 
duress, or sometimes even mistake. 
Willingness in fact that an act or an invasion of an 
interest shall take place. Restatement, Second, Torts, 
§ lOA. 
As used in the law of rape "consent" means consent of 
the will, and submission under the influence of fear or 
terror cannot amount to real consent. There must be 
an exercise of intelligence based on knowledge of its 
significance and moral quality and there must be a 
choice between resistance and assent. And if woman 
resists to the point where further resistance would be 
useless or until her resistance is overcome by force or 
violence, submission thereafter is not "consent". 
See also Acquiescence; Age of consent; Assent; Conni
vance; Informed consent. 
Co nsent decree. See Decree. 
Co nsent dividend. See Dividend. 
Co nsent judgment. See Judgment. 
Express consent. That directly given, either viva voce or 
in writing. It is positive, direct, unequivocal consent, 
CONSENT RULE 
requiring no inference or implication to supply its mean
ing. Pacific Nat. Agricultural Credit Corporation v. 
Hagerman, 40 N.M. 11 6, 55 P.2d 667, 670. 
Express or implied consent. Under motor vehicle liabili
ty insurance law providing that policy should cover any 
person responsible for operation of insured vehicle with 
insured's express or implied consent, words "express or 
implied consent" primarily modify not the word "opera
tion", but the word "responsi ble", and imply possession 
of vehicle with consent of owner and responsibility to 
him. 
Implied consent. That manifested by signs, actions, or 
facts, or by inaction or silence, which raise a presump
tion or inference that the consent has been given. An 
inference arising from a course of conduct or relation
ship between the parties, in which there is mutual 
acquiescence or a lack of objection under circumstances 
signifying assent. Allstate Ins. Co. v. State Farm Mutu
al Automobile Ins. Co., 260 S.C. 350, 195 S.E.2d 711, 713 
(use of motor vehicle). For example, when a corporation 
does business in a state it impliedly consents to be 
subject to the jurisdiction of that state's courts in the 
event of tortious conduct, even though it is not incorpo
rated in that state. 
Most every state has a statute implying the consent of 
one who drives upon its highways to submit to some 
type of scientific test or tests measuring the alcoholic 
content of the driver's blood. In addition to implying 
consent, these statutes usually provide that if the result 
of the test shows that the alcohol content exceeds a 
specified percentage, then a rebuttable presumption of 
intoxication arises. 
Consentible lines Ik;)nsent;)b;)l laynz/. See Line. 
Consentientes et agentes pari prena plectentur 
Ik;)nsenshiyentiyz et ;)jentiyz preriy piyn;) plek
tent;)r/. They who consent to an act, and they who do 
it, shall be visited with equal punishment. 
Consentire matrimonio non possunt infra [ante] an
nos nubiles Ikonsentayriy mretr;)mowniyow non pos;)nt 
infr;) [rentiy] renows nyuwb;)liyz/. Parties cannot con
sent to marriage within the years of marriage [before 
the age of consent]. 
Consent judgment. See Judgment. 
Consent jurisdiction. Parties may agree in advance to 
submit their controversy to a given forum, in which case 
the forum is the consent jurisdiction. 
Consent of victim. The submission of a victim is gener
ally no defense to a crime unless, as in the case of rape, 
the victim's consent negatives an element of the crime 
itself. 
Consent rule. An entry of record by the defendant, 
confessing the lease, entry, and ouster by the plaintiff in 
an action of ejectment. A superseded instrument, in 
which a defendant in an action of ejectment specified for 
what purpose he intended to defend, and undertook to 
confess not only the fictitious lease, entry, and ouster, 
but that he was in possession.

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CONSENT SEARCH 
Consent search. A search made by police after the 
subject of the search has consented; such consent, if 
freely and intelligently given, will validate a warrant
less search. Washington v. Chrisman, 455 U.S. 1, 102 
S.Ct. 812. Consent is not freely and voluntarily given in 
the face of colorably lawful coercion, Bumper v. North 
Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; 
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 
2319, 60 L.Ed.2d 920; and questions regarding duress or 
coercion in a consent search are determined by the 
totality of the circumstances. United States v. Menden
hall, 466 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. 
See 18 U.S.C.A. § 2236. 
Consent to be sued. Agreement in advance to be sued 
in a particular form. See Cognovit judgment; Judgment 
(Co nfession of judgment). 
Consent to notice. In documents which treat of the 
requirement of notice, (e.g. lease) a party may consent to 
notice beforehand or agree that notice to some other 
person will satisfy the requirement of notice to him. 
Consequence. The result following in natural sequence 
from an event which is adapted to produce, or to aid in 
producing, such result; the correlative of "cause". 
Board of Trustees of Firemen's Relief and Pension Fund 
for City of Tulsa v. Miller, 186 Okl. 586, 99 P.2d 146, 
147. See also Natural and probable consequences. 
Consequentire non est consequentia Ikons�kwenshiyiy 
non est kons�kwensh(iy)�/. The consequence of a conse
quence exists not. 
Consequential contempt. The ancient name for what 
is now known as "constructive" contempt of court. See 
Contempt. 
Consequential damages. See Damages. 
Consequential loss. Losses not directly caused by dam
age, but rather arising from results of such damage. 
Conservation. The concern which people have that 
nature be kept in as pristine a state as possible. Minne
sota Public Research Group v. Butz, D.C.Minn. 358 
F.Supp. 584, 596. 
Conservator. A guardian; protector; preserver. Ap
pointed by court to manage affairs of incompetent or to 
liquidate business. Person appointed by a court to 
manage the estate of one who is unable to manage 
property and business affairs effectively. Uniform Pro
bate Code §§ 1-201(6), 5-40 1(2). See also Guardian. 
Conservators of the peace. Officers authorized to pre
serve and maintain the public peace. In England, these 
officers were locally elected by the people until the reign 
of Edward III, when their appointment was vested in the 
king. Their duties were to prevent and arrest for 
breaches of the peace, but they had no power to arraign 
and try the offender until about 1360, when this authori
ty was given to them by act of parliament, and "then 
they acquired the more honorable appellation of justices 
of the peace". 1 Bl.Comm. 351. 
Conserve. To save and protect from loss or damage. 
306 
Consider. To fix the mind on, with a view to careful 
examination; to examine; to inspect. To deliberate 
about and ponder over. To entertain or give heed to. 
See also Considered. 
Considerable. Worthy of consideration; required to be 
observed. A "considerable" number, as of persons, does 
not necessarily mean a very great or any particular 
number of persons; the term "considerable" being mere
ly relative. 
Consideratio curire Ik�nsid �reysh(iy)ow kyliriyiy/. The 
judgment of the court. 
Consideration. The inducement to a contract. The 
cause, motive, price, or impelling influence which induc
es a contracting party to enter into a contract. The 
reason or material cause of a contract. Some right, 
interest, profit or benefit accruing to one party, or some 
forbearance, detriment, loss, or responsibility, given, suf
fered, or undertaken by the other. Restatement, Sec
ond, Contracts, §§ 17(1), 71. Richman v. Brookhaven 
Servicing Corp., 80 Misc.2d 563, 363 N.Y.S.2d 731, 733. 
It is a basic, necessary element for the existence of a 
valid contract that is legally binding on the parties. 
See also Adequate consideration; Failure of considera
tion; Fair and valuable consideration; Fair consideration; 
Good consideration; Inadequate consideration; Love and 
affection; Past consideration; Valuable consideration; 
Want of consideration. 
Considerations are either executed or executory; ex
press or implied; good or valuable. See definitions be
low. 
Co ncurrent consideration. One which arises at the same 
time or where the promises are simultaneous. 
Co ntinu ing consideration. One consisting in acts or 
performances which must necessarily extend over a con
siderable period of time. 
Equitable or moral considerations. Considerations 
which are devoid of efficacy in point of strict law, but 
are founded upon a moral duty, and may be made the 
basis of an express promise. 
Executed or executory considerations. The former are 
acts done or values given before or at the time of 
making the contract; the latter are promises to give or 
do something in future. 
Express or implied considerations. The former are those 
which are specifically stated in a deed, contract, or other 
instrument; the latter are those inferred or supposed by 
the law from the acts or situation of the parties. Ex
press consideration is a consideration which is distinctly 
and specifically named in the written contract or in the 
oral agreement of the parties. 
Good consideration. Such as is founded on natural duty 
and affection, or on a strong moral obligation. A consid
eration for love and affection entertained by and for one 
within degree recognized by law. Motives of natural 
duty, generosity, and prudence come under this class. 
The term is sometimes used in the sense of a considera
tion valid in point of law, and it then includes a valuable

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307 
or sufficient as well as a meritorious consideration. 
Generally, however, good is used in antithesis to valu
able consideration (q. v.). 
Gratuit ous consideration. One which is not founded 
upon any such loss, injury, or inconvenience to the party 
to whom it moves as to make it valid in law. 
Illegal consideration. An act which if done, or a prom
ise which if enforced, would be prejudicial to the public 
interest or contrary to law. 
Implied considerations. See Express or implied consider
ations, above. 
Imposs ible consideration. One which cannot be per
formed. 
Legal consideration. One recognized or permitted by 
the law as valid and lawful; as distinguished from such 
as are illegal or immoral. The term is also sometimes 
used as equivalent to "good" or "sufficient" considera
tion. 
Meritorious consideration. See Good consideration, 
above. 
Mo ral considerations. See Equitable or moral considera
tions, above. 
No minal consideration. One bearing no relation to the 
real value of the contract or article, as where a parcel of 
land is described in a deed as being sold for "one dollar," 
no actual consideration passing, or the real considera
tion being concealed. This term is also sometimes used 
as descriptive of an inflated or exaggerated value placed 
upon property for the purpose of an exchange. 
Past consideration. An act done before the contract is 
made, which is ordinarily by itself no consideration for a 
promise. As to time, considerations may be of the past, 
present, or future. Those which are present or future 
will support a contract not void for other reasons. 
Pecuniary cons ideration. A consideration for an act of 
forbearance which consists either in money presently 
passing or in money to be paid in the future, including a 
promise to pay a debt in full which otherwise would be 
released or diminished by bankruptcy or insolvency pro
ceedings. 
Sufficient consideration. One deemed by the law of 
sufficient value to support an ordinary contract between 
parties, or one sufficient to support the particular trans
action. 
Consideratum est per curiam /k:msid;mflyt�m est p;}r 
kyuriy�m/. (It is considered by the court.) The formal 
and ordinary commencement of a judgment. 
Consideratur /k�nsid�reyt�r/. L. Lat. It is considered. 
Held to mean the same with consideratum est. 
Considered. Deemed; determined; adjudged; reason
ably regarded. For example, evidence may be said to 
have been "considered" when it has been reviewed by a 
court to determine whether any probative force should 
be given it. 
CONSIMILI CASU 
Consign /k�nsayn/. To deliver goods to a carrier to be 
transmitted to a designated factor or agent. To deliver 
or transfer as a charge or trust. To commit, intrust, 
give in trust. To transfer from oneself to the care of 
another. To send or transmit goods to a merchant, 
factor, or agent for sale. To deposit with another to be 
sold, disposed of, or called for, whereby title does not 
pass until there is action of consignee indicating sale. 
See also Consignment. 
Consignee /k�nsayniy /. One to whom a consignment is 
made. Person named in bill of lading to whom or to 
whose order the bill promises delivery. U.C.C. 
§ 7-102(b). 
In a commercial use, "consignee" means one to whom 
a consignment may be made, a person to whom goods 
are shipped for sale, or one to whom a carrier may 
lawfully make delivery in accordance with his contract 
of carriage, or one to whom goods are consigned, 
shipped, or otherwise transmitted. Power Transmission 
Equipment Corp. v. Beloit Corp., 55 Wis.2d 540, 201 
N.W.2d 13, 15, 16. 
Consignment. The act or process of consigning goods; 
the transportation of goods consigned; an article or 
collection of goods sent to a factor; goods or property 
sent, by the aid of a common carrier, from one person in 
one place to another person in another place; something 
consigned and shipped. Entrusting of goods to another 
to sell for the consignor. A bailment for sale. 
The term "consignment", used in a commercial sense, 
ordinarily implies an agency and denotes that property 
is committed to the consignee for care or sale. Parks v. 
Atlanta News Agency, Inc., 11 5 Ga.App. 842, 156 S.E.2d 
137, 140. 
See also Reconsignment. 
Consignment contract. Consignment of goods to anoth
er (consignee) for sale under agreement that consignee 
will pay consignor for any sold goods and will return 
any unsold goods. A bailment for sale. 
Consignment sale. See Consignment. 
Consignor /k�nsayn�r /. One who sends or makes a 
consignment; a shipper of goods. The person named in 
a bill of lading as the person from whom the goods have 
been received for shipment. U.C.C. § 7-102(c). 
Consilia multorum qureruntur in magnis /k�nsiliy� 
m�lt6r�m kwir�nt�r in mregn�s/. The counsels of many 
are required in great things. 
Consiliarius /k�nsiliyeriy�s/. In the civil law, a coun
sellor, as distinguished from a pleader or advocate. An 
assistant judge. One who participates in the decisions. 
Consilium /k�nsi1iy�m/. A day appointed to hear the 
counsel of both parties. A case set down for argument. 
It is commonly used for the day appointed for the 
argument of a demurrer, or errors assigned. 
Consimili casu /k�nsim�lay keysyuw /. In old English 
law, a writ of entry, framed under the provisions of the 
statute Westminster 2, (13 Edw. I) c. 24, which lay for 
the benefit of the reversioner, where a tenant by the 
)

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CONSIMILI CASU 
curtesy aliened in fee or for life. Many other new writs 
were framed under the provisions of this statute; but 
this particular writ was known emphatically by the title 
here defined. The writ is now practically obsolete. 3 
Bl.Comm. 51. 
Consist. To stand together, to be composed of or made 
up of. See Consisting. 
Consistent. Having agreement with itself or something 
else; accordant; harmonious; congruous; compatible; 
compliable; not contradictory. 
Consisting. Being composed or made up of. This word 
is not synonymous with "including", for the latter, when 
used in connection with a number of specified objects, 
always implies that there may be others which are not 
mentioned. 
Consistor. A magistrate. 
Consistorium. Ikons;)storiy;)m/. The state council of the 
Roman emperors. 
Consistory. An assembly of cardinals convoked by the 
pope. 
A tribunal (prretorium ). 
Consistory courts. In England, the courts of diocesan 
bishops held in their several cathedrals (before the bish
op's chancellor, or commissary, who is the judge) for the 
trial of all ecclesiastical causes arising within their 
respective dioceses, and also for granting probates and 
administrations. From the sentence of these courts an 
appeal lies to the Provincial Court of the archbishop of 
each province respectively. 
Consobrini Ikons;)braynay/. In the civil law, cousins
german, in general; brothers' and sisters' children, con
sidered in their relation to each other. 
Consociatio Ik;)nsows(h)iyeysh(iy)ow/. Lat. An associa
tion, fellowship, or partnership. Applied by some of the 
older writers to a corporation, and even to a nation 
considered as a body politic. 
Consolo A bond that never matures but is redeemable 
on call. 
Consolation I kons;)leysh;)n I . Comfort, contentment, 
ease, enjoyment, happiness, pleasure, satisfaction. 
Consolato del mare Ikonsowlatow del marey I. The 
name of a code of sea-laws, said to have been compiled 
by order of the kings of Arragon (or, according to other 
authorities, at Pisa or Barcelona) in the fourteenth 
century, which comprised the maritime ordinances of 
the Roman emperors, of France and Spain, and of the 
Italian commercial powers. This compilation exercised 
a considerable influence in the formation of European 
maritime law. 
Consolidate. In a general sense, to unite or unify into 
one mass or body, as to consolidate several small school 
districts into a large district, or to consolidate various 
funds. In legislative usage, to consolidate two bills is to 
unite them into one. The term means something more 
than to rearrange or redivide. 
308 
To make solid or firm; to unite, compress, or pack 
together and form into a more compact mass, body, or 
system. To cause to become united and extinguished in 
a superior right or estate by both becoming vested in the 
same person. Swaim v. Smith, 174 Tenn. 688, 130 
S.W.2d 11 6, 120. 
See also Commingle; Consolidation; Joinder; Merger. 
Consolidated appeal. If two or more persons are enti
tled to appeal from a judgment or order of a district 
court and their interests are such as to make joinder 
practicable, they may file a joint notice of appeal, or 
may join in appeal after filing separate timely notices of 
appeal, and they may thereafter proceed on appeal as a 
single appellant. Appeals may be consolidated by order 
of the court of appeals upon its own motion or upon 
motion of a party, or by stipulation of the parties to the 
several appeals. Fed.R.App.P. 3(b). 
Consolidated balance sheets. See Consol idated finan
cial statements. 
Consolidated bonds. Bonds issued to replace two or 
more existing issues; thus, consolidating debt into single 
issue. 
Consolidated corporations. See Consolidation of corpo
rations. 
Consolidated financial statements. The financial re
port of a parent corporation and it's subsidiaries or 
affiliates which combines the assets, liabilities, reve
nues, and expenses of all of the entities. In preparing 
consolidated financial statements, all intercompany 
transactions are eliminated. See also Consolidated tax 
return. 
Consolidated laws. A compilation of all the laws of a 
State in force arranged according to subject matter. See 
Code; Codification; Compilation. 
Consolidated mortgage. Unification of several out
standing mortgages. 
Consolidated securities. An issue of securities suffi
ciently large to provide the funds to retire two or more 
outstanding issues of debt securities. 
Consolidated tax returns. A procedure whereby cer
tain affiliated corporations may file a single return, 
combine the tax transactions of each corporation, and 
arrive at a single income tax liability for the group. 
The election to file a consolidated return is usually 
binding on future years. I.R.C. §§ 1501-1505. See also 
Consolidated financial statement. 
Consolidation. Act of consolidating, or the status of 
being consolidated. Unification of two or more actions. 
See Consolidation of actions. 
In the civil law, the union of the usufruct with the 
estate out of which it issues, in the same person; which 
happens when the usufructuary acquires the estate, or 
vice versa. In either case the usufruct is extinct. 
In ecclesiastical law, the union of two or more benefic
es in one.

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In corporate law, the combination of two or more 
corporations into a newly created corporation. Thus, A 
Corporation and B Corporation combine to form C Cor
poration. The Revised Model Business Corporation Act 
eliminates the consolidation as a distinct type of corpo
rate amalgamation. A consolidation may qualify as a 
nontaxable reorganization if certain conditions are satis
fied. See also Consolidation of corporations; Merger. 
Consolidation loan. See Loan. 
Consolidation of actions. The act or process of uniting 
several actions into one trial and judgment, by order of 
a court, where all the actions are between the same 
parties, pending in the same court, and involving sub
stantially the same subject-matter, issues and defenses; 
or the court may order that one of the actions be tried, 
and the others decided without trial according to the 
judgment in the one selected. 
When actions involving a common question of law or 
fact are pending before the court, it may order a joint 
hearing or trial of any or all the matters in issue in the 
actions; it may order all the actions consolidated; and it 
may make such orders concerning proceedings therein 
as may tend to avoid unnecessary costs or delay. Fed.R. 
Civil P. 42(a); New York C.P.L.R. § 602. 
See also Joinder (Joinder of claims). 
Consolidation of cases. See Consolidation of actions. 
Consolidation of corporations. Occurs when two or 
more corporations are extinguished, and by the same 
process a new one is created, taking over the assets and 
assuming the liabilities of those passing out of existence. 
A unifying of two or more corporations into a single new 
corporation having the combined capital, franchises, and 
powers of all its constituents. See also Consolidation. 
Merger distinguished. In a "merger", one corporation 
absorbs the other and remains in existence while the 
other is dissolved, and in a "consolidation" a new corpo
ration is created and · the consolidating corporations are 
extinguished. See also Merger. 
Consonant statement. A prior declaration of a witness 
whose testimony has been attacked and whose credibili
ty stands impeached, which the court will allow to be 
proved by the person to whom the declaration was made 
in order to support the credibility of the witness and 
which but for the existence of such impeachment would 
ordinarily be excluded as hearsay. 
Consortio malorum me quoque malum facit Ikan
sorsh(iy)ow maloram miy kwowkwiy mrelam feysat/. 
The company of wicked men makes me also wicked. 
Consortium Ikansorsh(iy)am/. Conjugal fellowship of 
husband and wife, and the right of each to the company, 
society, co-operation, affection, and aid of the other in 
every conjugal relation. Roseberry v. Starkovich, 73 
N.M. 211, 387 P.2d 32 1, 322. Loss of "consortium" 
consists of several elements, encompassing not only ma
terial services but such intangibles as society, guidance, 
companionship, and sexual relations. Countryman v. 
Winnebago County, 2 Dist., 135 Ill.App.3d 384, 90 Ill. 
CONSPIRACY 
Dec. 344, 347, 481 N.E.2d 1255, 1258. Damages for loss 
of consortium are commonly sought in wrongful death 
actions, or when spouse has been seriously injured 
through negligence of another, or by spouse against 
third person alleging that he or she has caused break
ing-up of marriage. Cause of action for "consortium" 
occasioned by injury to marriage partner, is a separate 
cause of action belonging to the spouse of the injured 
married partner and though derivative in the sense of 
being occasioned by injury to spouse, is a direct injury to 
the spouse who has lost the consortium. Peeples v. 
Sargent, 77 Wis.2d 612, 253 N.W.2d 459, 471. See also 
Alienation of affections. 
In the civil law, a union of fortunes; a lawful Roman 
marriage. The joining of several persons as parties to 
one action. 
In old English law, the term signified company or 
society, and in the language of pleading, as in the phrase 
per quod consortium amisit, it has substantially the 
same meaning, viz., the companionship or society of a 
wife. 3 BI.Comm. 140. 
Consortship. In maritime law, an agreement or stipula
tion between the owners of different vessels that they 
shall keep in company, mutually aid, instead of interfer
ing with each other, in wrecking and salvage, whether 
earned by one vessel or both. 
Conspicuous place. Within the meaning of a statute 
relating to the posting of notices, a "conspicuous place" 
means one which is reasonably calculated to impart the 
information in question. 
Conspicuous term or clause. A term or clause is con
spicuous when it is so written that a reasonable person 
against whom it is to operate ought to have noticed it. 
For example, printing in italics or boldface or contrast
ing color, or typing in capitals or underlined, is conspic
uous. Rev. Model Bus.Corp. Act, § 1.40. A printed 
heading in capitals (as: NON-NEGOTIABLE BILL OF 
LADING) is conspicuous. Language in the body of a 
form is "conspicuous" if it is in larger or other contrast
ing type or color. But in a telegram any stated term is 
"conspicuous." 
Whether a term or clause is "conspicuous" or not is for 
decision by the court. Uniform Consumer Credit Code, 
§ 1.3 01(6); U.C.C. § 1-201(10). Size of type face alone 
does not determine whether required disclosure is "con
spicuous" for purpose of Truth in Lending Act; rather, 
location of disclosure, and manner in which it is set off 
from other information, are also determinative. Robin
son v. Olin Federal Credit Union, D.C.Conn., 48 B.R. 
732, 740. 
Conspiracy lkanspir;}siy I. A combination or confedera
cy between two or more persons formed for the purpose 
of committing, by their joint efforts, some unlawful or 
criminal act, or some act which is lawful in itself, but 
becomes unlawful when done by the concerted action of 
the conspirators, or for the purpose of using criminal or 
unlawful means to the commission of an act not in itself 
unlawful.

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CONSPIRACY 
A person is guilty of conspiracy with another person 
or persons to commit a crime if with the purpose of 
promoting or facilitating its commission he: (a) agrees 
with such other person or persons that they or one or 
more of them will engage in conduct which constitutes 
such crime or an attempt or solicitation to commit such 
crime; or (b) agrees to aid such other person or persons 
in the planning or commission of such crime or of an 
attempt or solicitation to commit such crime. Model 
Penal Code, § 5.03. 
Crime of conspiracy is distinct from the crime contem
plated by the conspiracy (target crime), Com. v. Dyer, 
243 Mass. 472, 509, 138 N.E. 296, 314, cert. denied, 262 
U.S. 751, 43 S.Ct. 700, 67 L.Ed. 1214. Some jurisdictions 
do not require an overt act as an element of the crime, 
e.g. Com. v. Harris, 232 Mass. 588, 122 N.E. 749. 
A conspiracy may be a continuing one; actors may 
drop out, and others drop in; the details of operation 
may change from time to time; the members need not 
know each other or the part played by others; a member 
need not know all the details of the plan or the opera
tions; he must, however, know the purpose of the con
spiracy and agree to become a party to a plan to effectu
ate that purpose. Craig v. U. S., C.C.A.Cal., 81 F.2d 816, 
822. 
There are a number of federal statutes prohibiting 
specific types of conspiracy. See, e.g., 18 U.S.C.A. § 37l. 
See also Chain conspi racy; Co-conspirator's rule; Com
bination in restraint of trade; Confederacy; Seditious con
spiracy; Wharton Rule. 
Chain conspiracy. Such conspiracy is characterized by 
different activities carried on with same subject of con
spiracy in chain-like manner that each conspirator in 
chain-like manner performs a separate function which 
serves in the accomplishment of the overall conspiracy. 
Bolden v. State, 44 Md.App. 643, 410 A.2d 1085, 109l. 
Civil conspiracy. The essence of a "civil conspiracy" is a 
concert or combination to defraud or cause other injury 
to person or property, which results in damage to the 
person or property of plaintiff. See also Civil conspiracy. 
Overthrow of government. See Sedition. 
Seditions conspiracy. See Sedition. 
Conspiracy in restraint of trade. Term which de
scribes all forms of illegal agreements such as boycotts, 
price fixing, etc., which have as their object interference 
with free flow of commerce and trade. See Antitrust acts; 
Clayton Act; Sherman Antitrust Act. 
Conspirators. Persons partaking in conspiracy. See 
Conspi racy. 
Conspire. To engage in conspiracy. Term carries with 
it the idea of agreement, concurrence and combination, 
and hence is inapplicable to a single person or thing, 
and one cannot agree or conspire with another who does 
not agree or conspire with him. See Conspiracy. 
Constable. An officer of a municipal corporation (usual
ly elected) whose duties are similar to those of the 
sheriff, though his powers are less and his jurisdiction 
31 0 
smaller. He is to preserve the public peace, execute the 
process of magistrates' courts, and of some other tribu
nals, serve writs, attend the sessions of the criminal 
courts, have the custody of juries, and discharge other 
functions sometimes assigned to him by the local law or 
by statute. Powers and duties of constables have gener
ally been replaced by sheriffs. 
In English law, public civil officer, whose proper and 
general duty is to keep the peace within his district, 
though he is frequently charged with additional duties. 
1 Bl.Comm. 356. There were formerly "high," "pett y," 
and "special" constables. In England, the functions of 
these special constables have been taken over by police 
forces. 
In Medieval law, high functionary under the French 
and English kings, the dignity and importance of whose 
office was second only to that of the monarch. He was 
in general the leader of the royal armies, and had 
cognizance of all matters pertaining to war and arms, 
exercising both civil and military jurisdiction. He was 
also charged with the conservation of the peace of the 
nation. Thus there was a "Constable of France" and a 
"Lord High Constable of England." Rich v. Industrial 
Commission, 80 Utah 511, 15 P.2d 641, 644. 
Constablewick Ik:}nst�b�lwik/. In English law, the ter
ritorial jurisdiction of a constable; as bailiwick is of a 
bailiff or sheriff. 
Constabularius Ik�ns treby�leriy�s/. An officer of horse; 
an officer having charge of foot or horse; a naval com
mander; an officer having charge of military affairs 
generally. In England his power was early diminished 
and restricted to those duties which related to the pres
ervation of the king's peace. The office is now abolished 
except as a matter of ceremony. 
Constant. Fixed or invariable; uniform. Continually 
recurring, regular, steady. Pfisterer v. Key, 218 Ind. 
521, 33 N.E.2d 330, 335. 
Constantly. In a constant manner; uniformly; continu
ously. 
Constat Ik6nst�trret l. It is clear or evident; it appears; 
it is certain; there is no doubt. No n constat, it does not 
appear. 
In England, a certificate which the clerk of the pipe 
and auditors of the exchequer made, at the request of 
any person who intended to plead or move in that court, 
for the discharge of anything. The effect of it was the 
certifying what appears (constat ) upon record, touching 
the matter in question. An exemplification under the 
great seal of the enrolment of letters patent. 
A certificate by an officer that certain matters therein 
stated appear of record. 
Constat d'huissier Ikonsta dwiysyey/. In French law, 
an affidavit made by a hu issier, setting forth the appear
ance, form, quality, color, etc., of any article upon which 
a suit depends. 
Constate Ik�nsteyt/. To establish, constitute, or ordain.

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311 
"Constating instruments" of a corporation are its char
ter, organic law, or the grant of powers to it. 
Constituency. The inhabitants of an electoral district. 
Constituent. He who gives authority to another to act 
for him. The term is used as a correlative to "attor
ney," to denote one who constitutes another his agent or 
invests the other with authority to act for him. 
It is also used in the language of politics as a correla
tive to "representative," the constituents of a legislator 
being those whom he represents and whose interests he 
is to care for in public affairs; usually the electors of his 
district. 
Constituent elements. The elements of a crime, tort or 
other type of action. Those matters which must be 
proved to sustain a cause of action because they consti
tute the action or crime. 
Constituere Ikonst;}tyuw;}riy I. Lat. To appoint, consti
tute, establish, ordain, or undertake. Used principally 
in ancient powers of attorney, and now supplanted by 
the English word "constitute." 
Constituimus Ikonst;}tuw;}m;}s/. A Latin term, signify
ing we cons titute or appoint. 
Constituted authorities. Officers properly appointed 
under a constitution for the government of the people. 
Constitutio Ikonst;}t(y)uwsh(iy)ow/. In the civil law, an 
imperial ordinance, decree, or constitution, distin
guished from Lex, Senatus-Cons ultum, and other kinds 
of law and having its effect from the sole will of the 
emperor. An establishment or settlement. Used of 
controversies settled by the parties without a trial. A 
sum paid according to agreement. 
In old English law, an ordinance or statute. A provi
sion of a statute. 
Constitutio dotis Ikonst;}t(y)uwsh(iy)ow d6wt;}s/. Estab
lishment of dower. 
Constitution. The organic and fundamental law of a 
nation or state, which may be written or unwritten, 
establishing the character and conception of its govern
ment, laying the basic principles to which its internal 
life is to be conformed, organizing the government, and 
regulating, distributing, and limiting the functions of its 
different departments, and prescribing the extent and 
manner of the exercise of sovereign powers. A charter 
of government deriving its whole authority from the 
governed. The written instrument agreed upon by the 
people of the Union (e.g. United States Constitution) or 
of a particular state, as the absolute rule of action and 
decision for all departments (i.e. branches) and officers 
of the government in respect to all the points covered by 
it, which must control until it shall be changed by the 
authority which established it (i.e. by amendment), and 
in opposition to which any act or ordinance of any such 
department or officer is null and void. The full text of 
the U.S. Constitution appears at the end of this dictio
nary. 
CONSTITUTIONAL LIBERTY OR FREEDOM 
In a more general sense, any fundamental or impor
tant law or edict; as the Novel Constitutions of Justini
an; the Constitutions of Clarendon. 
Constitutional. Consistent with the constitution; au
thorized by the cons.titution; not conflicting with any 
provision of the constitution or fundamental law of the 
state. Dependent upon a constitution, or secured or 
regulated by a constitution; as "constitutional mon
archy," "constitutional rights." 
Constitutional alcalde. A person of official status un
der Mexican law corresponding in many respects in 
dignity and authority to a justice of the peace under the 
American system of government. Tietzel v. Southwest
ern Const. Co., 48 N.M. 567, 154 P.2d 238, 242. 
Constitutional convention. A duly constituted assem
bly of delegates or representatives of the people of a 
state or nation for the purpose of framing, revising, or 
amending its constitution. Art. V of U.S. Const. pro
vides that a Constitutional Convention may be called on 
application of the Legislatures of two-thirds of the 
states. 
Constitutional court. A court named or described and 
expressly protected by Constitution, or recognized by 
name or definite description in Constitution (e.g. Su
preme Court, as provided for in Art. III, Sec. 1 of 
U.S .Const.) in contrast to legislatively created courts. 
Commonly referred to as "Article III" courts in refer
ence to U.S. Constitution. 
Constitutional freedom. Generic term to describe the 
basic freedoms guaranteed by the Constitution such as 
the First Amendment freedoms of religion, speech, press 
and assembly together with protection under due pro
cess clause of the 14th Amendment. See also Bill of 
rights; Constitutional liberty or freedom. 
Constitutional homestead. A special interest in real 
estate which protects it from attachment, created by 
constitution and available to the head of the family. 
Ringer v. Bryne, 183 Okl. 46, 80 P.2d 212, 214. 
Constitutional law. (1) That branch of the public law of 
a nation or state which treats of the organization, pow
ers and frame of government, the distribution of politi
cal and governmental authorities and functions, the 
fundamental principles which are to regulate the rela
tions of government and citizen, and which prescribes 
generally the plan and method according to which the 
public affairs of the nation or state are to be adminis
tered. (2) That department of the science of law which 
treats of constitutions, their establishment, construction, 
and interpretation, and of the validity of legal enact
ments as tested by the criterion of conformity to the 
fundamental law. (3) A constitutional law is one which 
is consonant to, and agrees with, the constitution; one 
which is not in violation of any provision of the constitu
tion of the particular state. 
Constitutional liberty or freedom. Such freedom as is 
enjoyed by the citizens of a country or state under the 
protection of its constitution. The aggregate of those 
personal, civil, and political rights of the individual

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CONSTITUTIONAL LIBERTY OR FREEDOM 
which are guaranteed by the constitution and secured 
against invasion by the government or any of its agen
cies. See also Bill of rights; Constitutional freedom. 
Constitutional limitations. Those provisions of a con
stitution which restrict the legislature in the types of 
laws which it may enact. See e.g. Art. I, Sec. 9, U.S. 
Constitution. 
Constitutional office. A public position or office which 
is created by a constitution as distinguished from a 
statutory office which is created by an enactment of the 
legislature. 
Constitutional officer. A governmental official whose 
office was created by a constitution; as contrasted with 
an officer whose position has been created by the legisla
ture. One whose tenure and term of office are fixed and 
defined by the constitution, as distinguished from the 
incumbents of offices created by the legislature. 
Constitutional powers. See Power. 
Constitutional protections. Those basic protections 
guaranteed by the Constitution such as due process, 
equal protection and the fundamental protections of the 
First Amendment, such as those touching speech, press 
and religion. See Bill of rights; Constitutional freedom. 
Constitutional questions. Those legal issues which re
quire an interpretation of the Constitution for their 
resolution as distinguished from those of a statutory 
nature (e.g. Fourth Amend. search and seizure issues). 
Constitutional right. A right guaranteed to the citizens 
by the United States Constitution and state constitu
tions and so guaranteed as to prevent legislative inter
ference therewith. See also Constitutional freedom; Con
stitutional liberty or freedom; Constitutional protections. 
Constitutional tort. See Tort. 
Constitutiones Ikonst;}t(y)uwshiyowniyz/. Laws prom
ulgated, i.e. , enacted, by the Roman Emperor. They 
were of various kinds, namely, the following: (1) Edicta; 
(2) decreta; (3) rescripta, called also "epistolre. " Some
times they were general, and intendE!d to form a prece
dent for other like cases; at other times they were 
special, particular, or individual (persona les), and not 
intended to form a precedent. The emperor had this 
power of irresponsible enactment by virtue of a certain 
lex regia, whereby he was made the fountain of justice 
and of mercy. 
Constitutiones tempore posteriores potiores sunt his 
qure ipsas prrecesserunt Ikonst;}t(y)uwshiyowniyz 
tempOlriy pOlstiriyoriyz s�nt hays kwiy ipSOlS presOlserOlnt/. 
Later laws prevail over those which preceded them. 
Constitutions of Clarendon. See Clarendon, constitu
tions of. 
Constitutions of the Forest. See Charta (Charta de 
fo resta). 
Constitutor IkonstOltyu.wtOlr/. In the civil law, one who, 
by a simple agreement, becomes responsible for the 
payment of another's debt. 
312 
Constitutum Ikonst;}t(y)uwtOlm/. In the civil law, an 
agreement to pay a subsisting debt which exists without 
any stipulation, whether of the promisor or another 
party. It differs from a stipulation in that it must be for 
an existing debt. 
A day appointed for any purpose. A form of appeal. 
Constitutum esse eam domum unicuique nostrum 
debere existimari, ubi quisque sedes et tabulas ha
beret, SUarumque rerum constitutionem fecisset 
Ikonst(y)uwtOlm esiy iy;}m dowmOlm yuwnOlk(yuw)aykwiy 
nostrOlm dOlbiriy OlgzistOlmeray, yuwbay kwiskwiy siydiyz 
et trebyOlIOls h;}bir;}t, syuwer�mkwiy rirOlm konstOlt(y)UW
shiyownOlm fOlsisOlt/. It is settled that that is to be 
considered the home of each one of us where he may 
have his habitation and account-books, and where he 
may have made an establishment of his business. 
Constraint. Act of constraining, i.e. state of being re
strained or restricted. 
Construct. To build; erect; put together; make ready 
for use. To adjust and join materials, or parts of, so as 
to form a permanent whole. To put together constitu
ent parts of something in their proper place and order. 
"Construct" is distinguishable from "maintain," which 
means to keep up, to keep from change, to preserve. See 
also Construction. 
Constructio legis non facit injuriam IkOlnstr�ksh(iy)ow 
liyj;}s non feysOlt injuriYOlm/. The construction of the 
law (a construction made by the law) works no injury. 
The law will make such a construction of an instrument 
as not to injure a party. 
Construction. Interpretation of statute, regulation, 
court decision or other legal authority. The process, or 
the art, of determining the sense, real meaning, or 
proper explanation of obscure, complex or ambiguous 
terms or provisions in a statute, written instrument, or 
oral agreement, or the application of such subject to the 
case in question, by reasoning in the light derived from 
extraneous connected circumstances or laws or writings 
bearing upon the same or a connected matter, or by 
seeking and applying the probable aim and purpose of 
the provision. Drawing conclusions respecting subjects 
that lie beyond the direct expression of the term. 
The process of bringing together and correlating a 
number of independent entities, so as to form a definite 
entity. 
The creation of something new, as distinguished from 
the repair or improvement of something already exist
ing. The act of fitting an object for use or occupation in 
the usual way, and for some distinct purpose. See 
Construct. 
See also Broad interpretation; Comparative interpreta
tion; Contemporaneous construction; Construe; Four cor
ners rule; Interpretation; Last antecedent rule; Literal 
construction or interpretation; Statutory construction; 
Strict construction. 
Equitable construction. A construction of a law, rule, or 
remedy which has regard more to the equities of the 
particular transaction or state of affairs involved than to 
the strict application of the rule or remedy; that is, a

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liberal and extensive construction, as opposed to a liter
al and restrictive. See also Strict and liberal construc
tion, below. 
Strict and liberal construction. Strict (or literal) con
struction is construction of a statute or other instrument 
according to its letter, which recognizes nothing that is 
not expressed, takes the language used in its exact and 
technical meaning, and admits no equitable considera
tions or implications. 
Liberal (or equitable) construction, on the other hand, 
expands the meaning of the statute to meet cases which 
are clearly within the spirit or reason of the law, or 
within the evil which it was designed to remedy, provid
ed such an interpretation is not inconsistent with the 
language used. It resolves all reasonable doubts in 
favor of the applicability of the statute to the particular 
case. It means, not that the words should be forced out 
of their natural meaning, but simply that they should 
receive a fair and reasonable interpretation with respect 
to the objects and purposes of the instrument. See also 
Equitable construction, above. 
Construction contract. Type of contract in which plans 
and specifications for construction are made a part of 
the contract itself and commonly it is secured by per
formance and payment bonds to protect both subcontrac
tors and party for whom building is being constructed. 
Construction lien. A lien that arises by law and at
taches to real estate to secure payment of a person who 
improved the property through the rendering of labor or 
other services or the furnishing of materials or other 
supplies. Another name for this lien is mechanics' lien 
(q.v.). 
Construction loan. See Loan. 
Construction of will. Interpretation which is given to 
provisions of will and the law to be applied therein when 
there is conflict as to the meaning intended by the 
deceased. Such function is commonly performed by 
Probate Court. 
Constructive. That which is established by the mind of 
the law in its act of construing facts, conduct, circum
stances, or instruments. That which has not the charac
ter assigned to it in its own essential nature, but ac
quires such character in conseqnence of the way in 
which it is regarded by a rule or policy of law; hence, 
inferred, implied, or made out by legal interpretation; 
the word "legal" being sometimes used here in lieu of 
"constructive." 
As to constructive Bailment; Breaking; Contempt; Con
version; Delivery; Escape; Fraud; Larceny; Seisen; and 
Treason, see those titles. 
Constructive adverse possession. Type of adverse pos
session which, under certain statutes, is characterized 
by payment of taxes under color of right, as distin
guished from actual adverse possession in which the 
adverse claimant is in actual possession. 
Constructive assent. An assent or consent imputed to a 
party from a construction or interpretation of his con
duct; as distinguished from one which he actually ex
presses. 
CONSTRUCTIVE FILING 
Constructive authority. Authority inferred or assumed 
to have been given because of the grant of some other 
antecedent authority. See also Authority. 
Constructive breaking into a house. A breaking made 
out by construction of law. As where a burglar gains an 
entry into a house by threats, fraud, or conspiracy. 
Constructive condition. Conditions in contracts which 
are neither expressed nor implied by the words of the 
contract but are imposed by law to meet the ends of 
justice. Restatement, Second, Contracts, § 226. The 
cooperation of the parties to a contract is a constructive 
condition. In negotiable instruments, a promise or or
der otherwise unconditional is not made conditional by 
the fact that the instrument is subject to a constructive 
condition. U.C.C. § 3-105(1). 
Constructive contract. A species of contracts which 
arise, not from the intent of the parties, but from the 
operation of law to avoid an injustice. These are some
times referred to as quasi contracts or contracts implied 
in law as contrasted with contracts implied in fact which 
are real contracts expressing the intent of the parties by 
conduct rather than by words. An obligation created by 
law for reasons of justice without regard to expressions 
of assent by either words or acts. Power-Matics, Inc. v. 
Ligotti, 79 N.J.Super. 294, 191 A.2d 483, 489. See also 
Contract (Quasi contract). 
Constructive delivery. The recognition of the act of 
intending that title to property be transferred to some
one, even though the actual, physical delivery of the 
property is not made (because of difficulty, impossibility) 
(e.g., the transfer of a key to a safe constructively 
delivers the contents of the safe). See also Delivery. 
Constructive desertion. Occurs when one spouse, 
through misconduct, forces the other to abandon the 
marital abode. Grollman v. Grollman, D.C.App., 220 
A.2d 330, 332. If a spouse is forced to leave the home 
because of the other's conduct, the former has been 
constructively deserted. 
Constructive dividend. See Dividend. 
Constructive eviction. Such arises when landlord, 
while not actually depriving tenant of possession, has 
done or suffered some act by which premises are ren
dered untenantable. Net Realty Holding Trust v. Nel
son, 33 Conn.Sup. 22, 358 A.2d 365, 367. Any distur
bance of the tenant's possession by the landlord whereby 
the premises are rendered unfit or unsuitable for occu
pancy in whole or in substantial part for the purposes 
for which they were leased amounts to a constructive 
eviction, if the tenant so elects and surrenders his pos
session. For example, if a tenant vacates the rental 
property because of the absence of heat or water, he has 
been constructively evicted. 
As the term is used with reference to breach of the 
covenants of warranty and of quiet enjoyment, it means 
the inability of the purchaser to obtain possession by 
reason of a paramount outstanding title. 
Constructive filing. The filing of a document with a 
person who is the only one available to receive it,

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CONSTRUCTIVE FILING 
though he is not the designated person to receive it, is a 
constructive filing. People v. Spencer, 193 Cal.App.2d 
13, 13 Cal.Rptr. 881, 883. 
Constructive force. As regards robbery, a taking by 
force is the gist of the crime, but the force may be either 
actual or constructive. Constructive force is anything 
which produces fear sufficient to suspend the power of 
resistance and prevent the free exercise of the will. 
Actual force is applied to the body; constructive is by 
threatening words or gestures and operates on the mind. 
Constructive fraud. Exists where conduct, though not 
actually fraudulent, has all actual consequences and all 
legal effects of actual fraud. Agair Inc. v. Shaeffer, 232 
Cal.App.2d 513, 42 Cal.Rptr. 883, 886. Breach of legal 
or equitable duty which, irrespective of moral guilt, is 
declared by law to be fraudulent because of its tendency 
to deceive others or violate confidence. Daves v. Law
yers Sur. Corp., Tex.Civ.App., 459 S.W.2d 655, 657. See 
also Fraud. 
Constructive/implied conditions. Conditions or quali
fications to a promise which arise from the very nature 
of the promise and which the law recognizes as condi
tioning the promise even though not expressly stated. 
Constructive intent. Exists where one should have 
reasonably expected or anticipated a particular result; 
e.g. when one does an act which is wilful and wanton 
resulting in injury to another, it can be said that he 
constructively intended the harm. Ballew v. Asheville 
& E. T. R. Co., 186 N.C. 704, 120 S.E. 334. 
Constructive knowledge. If one by exercise of reason
able care would have known a fact, he is deemed to have 
had constructive knowledge of such fact; e.g. matters of 
public record. Attoe v. State Farm Mutual Auto. Ins. 
Co., 36 Wis.2d 539, 153 N.W.2d 575, 579. See also 
Constructive notice. 
Constructive loss. One resulting from such injuries to 
the property, without its destruction, as render it value
less to the assured or prevent its restoration to the 
original condition except at a cost exceeding its value. 
See also Constructive total loss. 
Constructive malice. That type of malice which the 
law infers from the doing of an evil act; sometimes 
known as implied malice. 
Constructive notice. Such notice as is implied or im
puted by law, usually on the basis that the information 
is a part of a public record or file, as in the case of notice 
of documents which have been recorded in the appropri
ate registry of deeds or probate. Notice with which a 
person is charged by reason of the notorious nature of 
the thing to be noticed, as contrasted with actual notice 
of such thing. That which the law regards as sufficient 
to give notice and is regarded as a substitute for actual 
notice. In re Fahle's Estate, 90 Ohio App. 195, 105 
N.E.2d 429, 431. 
Constructive ownership. See Attribution. 
Constructive payment. If one charges himself with a 
payment and the payee has a right to demand it, it can 
31 4 
be considered a constructive as contrasted with an actu
al payment; e.g. a check which is mailed in payment 
though not yet cashed is a constructive payment. 
Constructive possession. A person has constructive 
possession of property if he has power to control and 
intent to control such item. Com. v. Stephens, 231 
Pa.Super. 481, 331 A.2d 719, 723. Exists where one does 
not have physical custody or possession, but is in a 
position to exercise dominion or control over a thing. 
U. S. v. DiNovo, C.A.lnd., 523 F.2d 197, 20 1. 
Constructive receipt of income. As applied to tax 
laws, is taxable income which is unqualifiedly subject to 
the demand of taxpayer on cash receipts and disburse
ments method of accounting, whether or not such in
come has actually been received in cash. Gounares 
Bros. & Co. v. U. S., D.C.Ala., 185 F.Supp. 794, 798. 
Under this doctrine, income which is subject to unfet
tered command of taxpayer and which the taxpayer is 
free to enjoy at his option is taxed to him, despite the 
fact that the taxpayer has exercised his own choice to 
turn his back on that income and the doctrine is one by 
which form of transaction is ignored in order to get to 
its substance. Pittsburgh-Des Moines Steel Co. v. U. S., 
D.C.Pa., 360 F.Supp. 597, 599. An example would be 
accrued interest on a savings account. Under the con
structive receipt of income concept, such interest will be 
taxed to a depositor in the year it is available rather 
than the year actually withdrawn. The fact that the 
depositor uses the cash basis of accounting for tax pur
poses makes no difference. 
Constructive service of process. Form of service of 
process other than actual service; e.g. publication in 
newspaper is constructive service. 
Constructive taking. A phrase used in the law to 
characterize an act not amounting to an actual appropri
ation of chattels, but which shows an intention to con
vert them to his use; as if a person intrusted with the 
possession of goods deals with them contrary to the 
orders of the owner. With respect to constructive con
demnation, see Condemnation (Inverse condem nation ). 
Constructive total loss. In insurance, exists whenever 
insured item of property has lost its total usefulness and 
insured is deprived of its benefit totally. See also Con
structive loss. 
Constructive transfer. A transfer of an item (e.g. a 
controlled substance), either belonging to an individual 
or under the individual's control, by some other person 
or agency at the instance or direction of the individual 
accused of such constructive transfer. Henderson v. 
State, Tex.App. 14 Dist., 681 S.W.2d 173, 174. 
Constructive trust. Trust created by operation of law 
against one who by actual or constructive fraud, by 
duress or by abuse of confidence, or by commission of 
wrong, or by any form of unconscionable conduct, or 
other questionable means, has obtained or holds legal 
right to property which he should not, in equity and 
good conscience, hold and enjoy. Davis v. Howard, 19 
Or.App. 310, 527 P.2d 422, 424.

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31 5 
A constructive trust is a relationship with respect to 
property subjecting the person by whom the title to the 
property is held to an equitable duty to convey it to 
another on the ground that his acquisition or retention 
of the property is wrongful and that he would be unjust
ly enriched if he were permitted to retain the property. 
Restatement, Second, Trusts § lee). 
Constructive trust ex delicto. A constructive trust 
which is imposed on property which a fiduciary has 
claimed or received in violation of his duties. 
Constructive willfulness. Intentional disregard of a 
known duty necessary to the safety of a person, and an 
entire absence of care for the life, the person, or the 
property of others, such as exhibits a conscious indiffer
ence to consequences. 
Construe. To put together; to arrange or interpret the 
words of an instrument, statute, regulation, court deci
sion or other legal authority. To ascertain the meaning 
of language by a process of arrangement, interpretation 
and inference. See Construction. 
Constuprate Ikonst(y);;)preyt/. To ravish, debauch, vio
late, rape. 
Consuetudinarius I kcmsw;;)ytyuwd;;)neriy;;)s I . In ecclesi
astical law, a ritual or book, containing the rites and 
forms of divine offices or the customs of abbeys and 
monasteries. 
Consuetudinary law Ikcmsw;;)tyuwd;;)n(;;))ry 16/. Custom
ary law. Law derived by oral tradition from a remote 
antiquity. 
Consuetudines Ikonsw;;)tyuwd;;)niyz/. In old English 
law, customs. Thus, consuetudines et assisa fo restre, the 
customs and assise of the forest. 
Consuetudines feudorum Ikonsw;;)tyuwd;;)niyz fyuw
dor;;)m/. (Lat. feudal customs.) A compilation of the 
law of feuds or fiefs in Lombardy, made A.D. 11 70. It is 
of great authority. 
. 
Consuetudinibus et serviciis Ikonsw;;)tyuwdin;;)b;;)s et 
s;;)rvishiy;;)s/. In old English law, a writ of right close, 
which lay against a tenant who deforced his lord of the 
rent or service due to him. 
Consuetudo Ikonsw;;)tyuwdow I. Lat. A custom; an es
tablished usage or practice; duties; taxes. 
Consuetudo anglicana Ikonsw;;)tyuwdow reI]gl;;)keyn;;)I . 
The custom of England; the ancient common law, as 
distinguished from lex, the Roman or civil law. 
Consuetudo contra rationem introducta potius usur
patio quam consuetudo appellari debet 
Ikonsw;;)tyuwdow kontr;;) rreshiyown;;)m intr;;)d;}kt;;) 
powsh(iy);;)s yuws;;)rpeysh(iy)ow kwrem konsw;;)tyuwdow 
rep;;)leray deb;;)t/. A custom introduced against reason 
ought rather to be called a "usurpation" than a "cus
tom." 
Consuetudo curire Ikonsw;;)tyuwdow kyuriyiy I. The 
custom or practice of a court. 
Consuetudo debet esse certa; nam incerta pro nulla 
habetur Ikonsw;;)tyuwdow deb;;)t esiy S;}rt;;), nrem ins;}rt;;) 
CONSUETUDO TOLLIT COMMUNEM LEGEM 
prow n;}l;;)s heybent;;)r/. A custom should be certain; for 
an uncertain custom is considered null. 
Consuetudo est altera lex Ikonsw;;)tyuwdow est relt;;)r;;) 
leks/. Custom is another law. 
Consuetudo est optimus interpres legum Ikon
sw;;)tyUwdow est opt;;)m;;)s int;}rpriyz liyg;;)m/. Custom is 
the best expounder of the laws. 
Consuetudo et communis assuetudo vincit legem non 
scriptam, si sit specialis; et interpretatur legem 
scriptam, si lex sit generalis Ikonsw;;)tyuwdow et 
k;;)myuwn;;)s resw;;)tyuwdow vins;;)t liyj;;)m non skript;;)m, 
say sit speshiyeyl;;)s; et int�rpr;;)teyt;;)r liyj;;)m skript;;)m, 
say sit jen;;)reybs/. Custom and common usage over
comes the unwritten law, if it be special; and interprets 
the written law, if the law be general. 
Consuetudo ex certa causa rationabili usitata privat 
communem legem Ikonsw;;)tyuwdow et S;}rt;;) kosa 
rresh;;)neyb;;)lay yuwz;;)teyt;;) prayv;;)t k;;)myuwn;;)m liyj;;)m/. 
A custom, grounded on a certain and reasonable cause, 
supersedes the common law. 
Consuetudo licet sit magnre auctoritatis, nunquam 
tamen, prrejudicat manifestre veritati Ikonsw;;)tyuwd
ow, lis;;)t sit mregniy oktohr;;)teyt;;)s, n;}I]kw;;)m tremen 
pr;;)juwd;;)k;;)t mren;;)festiy vehr;;)teytay I. A custom, 
though it be of great authority, should never prejudice 
manifest truth. 
Consuetudo loci observanda est Ikonsw;;)tyuwdow low
say obz;;)rvrend;;) est/. The custom of a place is to be 
observed. 
Consuetudo manerii et loci observanda est Ikon
sw;;)tyuwdow m;;)niriyay et lowsay obz;;)rvrend;;) est/. A 
custom of a manor and place is to be observed. 
Consuetudo mercatorum Ikonsw;;)tyuwdow m;;)r
k;;)tor;;)m/. Lat. The custom of merchants, the same 
with lex mercatoria. 
Consuetudo neque in juria oriri neque tolli potest 
Ikonsw;;)tyuwdow nekwiy ;;)njuriy;;) ;;)rayray nekwiy tolay 
powt;;)st/. Custom can neither arise from nor be taken 
away by injury. 
Consuetudo non trahitur in consequentiam Ikon-
sw;;)tyuwdow non trey(h);;)t;;)r in kons;;)kwen-
sh(iy);;)m/. Custom is not drawn into consequence. 
Consuetudo prrescripta et legitima vincit legem 
Ikonsw;;)tyuwdow pr;;)skript;;) ;;)t bj it;;)m;;) vins;;)t liyj;;)m/. 
A prescriptive and lawful custom overcomes the law. 
Consuetudo regni anglire est lex anglire Ikonsw;;)tyuw
dow regnay reI]gliyiy est leks reI]gliyiy I. The custom of 
the kingdom of England is the law of England. 2 
Bl.Comm. 422. 
Consuetudo semel reprobata non potest amplius in
duci Ikonsw;;)tyuwdow sem;;)l reprowbeyt;;) non powt;;)st 
rempliy;;)s ind(y)uwsay/. A custom once disallowed can
not be again brought forward [or relied on]. 
Consuetudo tollit communem legem Ikonsw;;)tyuwdow 
tobt k;;)myuwn;;)m liyj;;)m/. Custom takes away the com
mon law.

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CONSUETUDO VINCIT COMMUNEM LEGEM 
Consuetudo vincit communem legem Ikonsw�tyuwd
ow vins�t k�myuwn�m liyj�m/. Custom overrules com
mon law. 
Consuetudo volentes ducit, lex nolentes trahit Ikon
sw�tyuwdow v�l€mtiyz d(y)uws�t, leks now
lentiyz trey(h)�t/. Custom leads the willing, law com
pels [drags] the unwilling. 
Consul Ikons�l /. An officer of a commercial character, 
appointed by the different nations to watch over the 
mercantile and tourist interests of the appointing nation 
and of its subjects in foreign countries. There are 
usually a number of consuls in every maritime country, 
and they are usually subject to a chief consul, who is 
called a "consul general." A public official residing in a 
foreign country responsible for developing and protect
ing the economic interests of his government and look
ing after the welfare of his government's citizens who 
may be traveling or residing within his jurisdiction. 
United States consuls form a part of the Foreign Service 
and are of various grades: consul general, consul, vice 
consul, and consular agent. 
In old English law, a title of an earl. 
In Roman law, during the republic, the name "consul" 
was given to the chief executive magistrate, two of 
whom were chosen annually. The office was continued 
under the empire, but its powers and prerogatives were 
greatly reduced. The name is supposed to have been 
derived from consu lo, to consult, because these officers 
consulted with the senate on administrative measures. 
Consular courts Ikons(y)�l�r korts/. Courts held by the 
consuls of one country, within the territory of another, 
under authority given by treaty, for the settlement of 
civil cases. In some instances they had also a criminal 
jurisdiction, but in this respect were subject to review by 
the courts of the home government. The last of the 
United States consular courts (Morocco) was abolished 
in 1956. 
Consular invoice. Invoice used in foreign trade signed 
by consul of the country for which the shipment is 
destined. Such facilitates entry through destination 
country in that quantity, value, etc. of shipment has 
been pre-verified. 
Consular marriage. A marriage solemnized in a for
eign country by a consul or diplomatic agent of the U.S. 
and held to be valid in some jurisdictions. 
Consulate. The residence or headquarters of a foreign 
consul. 
Consul general. Consular officer of highest grade. 
Consulta ecclesia Ik�ns;)lt� �kliyziy�/. In ecclesiastical 
law, a church full or provided for. 
Consultary response Ik�ns;)lt�riy r�spons/kons�lteriyO I. 
The opinion of a court of law on a special case. 
Consultation. Act of consulting or conferring; e.g. pa
tient with doctor; client with lawyer. Deliberation of 
persons on some subject. A conference between the 
counsel engaged in a case, to discuss its questions or 
arrange the method of conducting it. 
31 6 
An old writ whereby a cause which had been wrong
fully removed by prohibition out of an ecclesiastical 
court to a temporal court was returned to the ecclesiasti
cal court. 
Consulto Ik�ns;)ltow /. Lat. In the civil law, designedly; 
intentionally. 
Consumer Ik�ns(y)uwm�r I. One who consumes. Indi
viduals who purchase, use, maintain, and dispose of 
products and services. Users of the final product. A 
member of that broad class of people who are affected by 
pricing policies, financing practices, quality of goods and 
services, credit reporting, debt collection, and other 
trade practices for which state and federal consumer 
protection laws are enacted. Consumers are to be dis
tinguished from manufacturers (who produce goods), and 
wholesalers or retailers (who sell goods). See also Pur
chaser. 
A buyer (other than for purposes of resale) of any 
consumer product, any person to whom such product is 
transferred during the duration of an implied or written 
warranty (or service contract) applicable to the product, 
and any other person who is entitled by the terms of 
such warranty (or service contract) or under applicable 
State law to enforce against the warrantor (or service 
contractor) the obligations of the warranty (or service 
contract). 15 U.S.C.A. § 230l. 
Consumer advocate. One who is given to presenting 
the position of the consumer or to representing him in 
judicial, administrative, or legislative proceedings. See 
also Ombudsman. 
Consumer credit. Short term loans to individuals for 
purchase of consumer goods and services. 
Consumer Credit Code. A uniform law, adopted by 
several states, with intent and purpose similar to that of 
the federal Consumer Credit Protection Act (q.v.). 
Consumer Credit Protection Act. Federal and state 
acts (commonly referred to as Truth-in-Lending Acts) 
enacted to safeguard the consumer in connection with 
the utilization of credit by requiring full disclosure of 
the terms and conditions of finance charges in credit 
transactions or in offers to extend credit, by restricting 
the garnishment of wages, and by regulating the use of 
credit cards. 15 U.S.C.A. § 1601 et seq. In addition to 
federal and state Truth-in-Lending Acts, several states 
also require by statute that consumer-loan agreements 
be written in plain, simplified language. See also Annu
al percentage rate; Equal Credit Opportunity Act; Fair 
Credit Bill ing Act; Fair Credit Reporting Acts; Fair Debt 
Collection Practices Act; Truth-in-Lending Act; Uniform 
Consumer Credit Code. 
Consumer credit sale. Any sale with respect to which 
consumer credit is extended or arranged by the seller. 
The term includes any contract in the form of a bail
ment or lease if the bailee or lessee contracts to pay as 
compensation for use a sum substantially equivalent to 
or in excess of the aggregate value of the property and 
services involved and it is agreed that the bailee or 
lessee will become, or for no other or for a nominal

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31 7 
consideration has the option to become, the owner of the 
property upon full compliance with his obligations un
der the contract. 
Consumer credit transaction. Credit offered or extend
ed to a natural person, in which the money, property or 
service which is the subject of the transaction is primari
ly for personal, family, household or agricultural pur
poses and for which either a finance charge is or may be 
imposed or which, pursuant to an agreement, is or may 
be payable in more than four installments. "Consumer 
loan" is one type of "consumer credit". 
Consumer debt. Debt incurred by an individual primar
ily for a personal, family, or household purpose. Bank
ruptcy Code § 101. 
Consumer goods. Goods which are used or bought for 
use primarily for personal, family or household pur
poses. V.C.C. § 9-109(1). Such goods are not intended 
for resale or further use in the production of other 
products. Contrasted with capital goods. See also Con
sumer product. 
Consumer lease. Lease of consumer goods; also may be 
applied to lease of dwelling as contrasted with commer
cial lease. Article 2A of the V.C.C. is concerned with 
the formation, construction, effect, and enforcement of 
the consumer lease contracts, as well as the rights and 
remedies of both lessor and lessee on default. As de
fined by V.C.C. § 2A-I03 is "a lease that a lessor regu
larly engaged in the business of leasing or selling makes 
to a lessee, except an organization, who takes under the 
lease primarily for a personal, family, or household 
purpose." 
Disclosure of terms in certain types of consumer leas
es is governed by Federal Consumer Leasing Act (which 
is fully integrated into the Federal Truth in Lending 
Act). 15 V.S.C.A. § 1667 et seq. 
Consumer Price Index. A price index computed and 
issued monthly by the Bureau of Labor Statistics of the 
V.S. Department of Labor. The index attempts to track 
the price level of a group of goods and services pur
chased by the average consumer. Widely used to mea
sure changes in cost of maintaining given standard of 
living. See Cost of living clause. Compare Producer Price 
Index. 
Consumer product. Any tangible personal property 
which is distributed in commerce and which is normally 
used for personal, family, or household purposes (includ
ing any such property intended to be attached to or 
installed in any real property without regard to whether 
it is so attached or installed). 15 V.S.C.A. § 2301. See 
also Consumer goods. 
Consumer Product Safety Commission. An indepen
dent federal regulatory agency established by act of 
October 27, 1972 (86 Stat. 1207) to administer and imple
ment the Consumer Product Safety Act. The Commis
sion has primary responsibility for establishing manda
tory product safety standards, where appropriate, to 
reduce the unreasonable risk of injury to consumers 
from consumer products. In addition it has authority to 
CONSUMMATE LIEN 
ban hazardous consumer products. The Consumer Prod
uct Safety Act also authorizes the Commission to con
duct extensive research on consumer product standards, 
engage in broad consumer and industry information and 
education programs, and establish a comprehensive In
jury Information Clearinghouse. 
Consumer protection laws. Federal and state statutes 
governing sales and credit practices involving consumer 
goods. Such statutes prohibit and regulate deceptive or 
unconscionable advertising and sales practices, product 
quality, credit financing and reporting, debt collection, 
leases, and other aspects of consumer transactions. For 
examples of such statutes, see Consumer Credit Protection 
Act; Consumer Product Safety Commission; Deceptive 
sales practices; Equal Credit Opportunity Act; Fair Debt 
Collection Practices Act; Fair Credit Bill ing Act; Fair Credit 
Reporting Acts; Magnuson-Moss Warranty Act; Truth-in
Lending Act; Uniform Commercial Code; Uniform Con
sumer Credit Code. 
At the federal level, the major regulatory law is the 
Federal Trade Commission Act. More than half the 
states have in turn enacted "mini-FTC" laws which, like 
the federal, prohibit "unfair or deceptive acts or practic
es." 
Consumer report. Document issued by private or gov
ernmental body relative to quality of certain products, 
their dangers and their attributes. Document issued as 
to certain companies and their practices. See Fair Credit 
Reporting Acts. 
Consumer reporting agency. An agency which acts for 
monetary fees, dues or on a cooperative nonprofit basis, 
which regularly engages in whole or in part in gathering 
or evaluating information on consumers in order to 
distribute such information to third parties engaged in 
commerce and which uses a facility of interstate com
merce to prepare or distribute the reports. Porter v. 
Talbot Perkins Children's Services, D.C.N.Y., 355 
F.Supp. 174, 176. The activities of such agencies are 
regulated by federal and state laws. See Fair Credit 
Reporting Acts. 
Consumer's cooperative. Group which purchases con
sumer goods for resale to its members, thus reducing 
costs by eliminating the middleman's profit. 
Consummate Ik;ms�m;}tI, adj. Completed; as distin
guished from initiate, or that which is merely begun. 
The husband of a woman seised of an estate of inheri
tance becomes, by the birth of a child, tenant by the 
curtesy initiate, and may do many acts to charge the 
lands, but his estate is not consummate till the death of 
the wife. 2 Bl.Comm. 126, 128. 
Consummate Ik6ns;}meyt/, v. To finish by completing 
what was intended; bring or carry to utmost point or 
degree; carry or bring to completion; finish; perfect; 
fulfill; achieve. See also Consummation. 
Consummate lien. A term which may be used to de
scribe the lien of a judgment when a motion for a new 
trial has been denied (the lien having theretofore been 
merely inchoate).

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CONSUMMATION 
Consummation Ikons�meysh; m/. The completion of a 
thing; the completion of a marriage by cohabitation (i.e. 
sexual intercourse) between spouses. 
Consumption. Act or process of consuming; waste; de
cay; destruction. Using up of anything, as food, natural 
resources, heat, or time. 
Contagious disease. One capable of being transmitted 
by mediate or immediate contact. 
Contamination. Condition of impurity resulting from 
mixture or contact with foreign substance. American 
Cas. Co. of Reading, Pa. v. Myrick, C.A.Tex., 304 F.2d 
179, 183. See also Adulteration; Foreign substance. 
Contango Ikontre1Jgow I. A double bargain, consisting of 
a sale for cash of stock previously bought which the 
broker does not wish to carry, and a repurchase for the 
re-settlement several weeks ahead of the same stock at 
the same price as at the sale plus interest accrued up to 
the date of that settlement. The rate of interest is 
called a "contango" and contango days are the days 
during the settlement when these arrangements are in 
effect. 
Charge by broker for carrying customer's account to 
next settlement day. 
Contek Ik�ntek/. L. Fr. A contest, dispute, distur
bance, opposition. Co nteckour s; brawlers; disturbers of 
the peace. 
Contemnor Ik�ntemn�r /. One who has committed con
tempt of court. 
Contemplate. To view or consider with continued atten
tion; to regard thoughtfully; to have in view as contin
gent or probable as an end or intention. To ponder, to 
study, to plan, to meditate, to reflect. See Consider; 
Premeditation. 
Contemplation. The act of the mind in considering with 
attention. Continued attention of the mind to a particu
lar subject. Consideration of an act or series of acts 
with the intention of doing or adopting them. The 
consideration of an event or state of facts with the 
expectation that it will transpire. See Consideration; 
Premeditation. 
Contemplation of bankruptcy. Contemplation of the 
termination of one's business because of the financial 
inability to continue it. Knowledge of, and action with 
reference to, a condition of bankruptcy or ascertained 
insolvency, coupled with an intention to commit what 
the law formerly declared to be an "act of bankruptcy," 
or to make provision against the consequences of insol
vency, or to defeat the general distribution of assets 
which would take place under a proceeding in bankrupt
cy. See Act of bankruptcy; Bankruptcy proceedings. 
Contemplation of death. The apprehension or expecta
tion of approaching dissolution; not that general expec
tation which every mortal entertains, but the apprehen
sion which arises from some presently existing sickness 
or physical condition or from some impending danger. 
As applied to transfers of property, the phrase "in 
contemplation of death" means that thought of death is 
31 8 
the impelling cause of transfer and that motive which 
induces transfer is of sort which leads to testamentary 
disposition and is practically equivalent to "causa mor
tis." In re Cornell's Estate, 66 A.D. 162, 73 N.Y.S. 32; 
Nicholas v. Martin, 128 N.J.Eq. 344, 15 A.2d 235, 243; 
Pate v. C. I. R., C.C.A.8, 149 F.2d 669, 670. It has been 
further held however, that in determining whether 
transfer by decedent within three years prior to date of 
death was made in contemplation of death, phrase "con
templation of death" is not restricted in meaning to 
apprehension that death is imminent; inquiry is wheth
er the "life" as opposed to "death" motives were the 
dominant controlling or impelling reasons for the trans
fer. Bel v. U. S., D.C.La., 310 F.Supp. 11 89, 11 94. See 
also In contemplation of death. 
Contemplation of insolvency. Knowledge of, and ac
tion with reference to, an existing or contemplated state 
of insolvency, with a design to make provision against 
its results or to defeat the operation of the insolvency 
laws. See Act of bankruptcy; Contemplation of bankrupt
cy. 
Contemporanea expositio Ik�ntemp�reyniy� eks
p�zish(iy)ow/. Lat. Contemporaneous exposition, or 
construction; a construction drawn from the time when, 
and the circumstances under which, the subject-matter 
to be construed, as a statute or custom, originated. 
Contemporanea expositio est optima et fortissima in 
lege Ik�ntemp�reyniy� eksp�zish(iy)ow est 6pt�m� et 
fortis�m� in liyjiy I. Contemporaneous exposition is the 
best and strongest in the law. A statute is best ex
plained by following the construction put upon it by 
judges who lived at the time it was made, or soon after. 
Contemporaneous construction. A doctrine which 
holds that when an administrative body over a long 
period of time has placed an interpretation upon an 
ambiguous law, the interpretation of such body is enti
tled to great weight in the determination of the meaning 
of the law. Bunch v. Town of St. Francisville, La.App. 1 
Cir., 446 So.2d 1357, 1361. 
Contemporaneous objection rule. Rule which requires 
that a specific and timely objection be made to the 
admission of evidence for the question of its admissibili
ty to be considered on appeal. Jensen v. Jensen, 205 
Kan. 465, 470 P.2d 829, 831. 
Contemporary community standards. In deciding 
whether allegedly obscene material has any literary, 
political or scientific value, the proper inquiry is not 
whether an ordinary member of any given community 
would find serious literary, artistic, political or scientific 
value in the material, but whether a reasonable person 
would find such value in the material taken as a whole. 
Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 
439, 445. 
Contempt. A willful disregard or disobedience of a 
public authority. See also Civil contempt; Common-law 
contempt; Contempt of Congress; Contempt of court; 
Direct contempt.

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31 9 
Contemptibiliter /k;mtEHn(p)t�bil�t�r/. Lat. Contemp
tuously. In old English law, contempt, contempts. 
Contempt of Congress. Deliberate interference with 
duties and powers of Congress. Both houses of Congress 
may cite an individual for such contempt. 
Contempt of court. Any act which is calculated to 
embarrass, hinder, or obstruct court in administration of 
justice, or which is calculated to lessen its authority or 
its dignity. Committed by a person who does any act in 
willful contravention of its authority or dignity, or tend
ing to impede or frustrate the administration of justice, 
or by one who, being under the court's authority as a 
party to a proceeding therein, willfully disobeys its law
ful orders or fails to comply with an undertaking which 
he has given. 
Classification 
Contempts are, generally, of two kinds, direct and 
constructive. 
Direct contempts are those committed in the immedi
ate view and presence of the court (such as insulting 
language or acts of violence) or so near the presence of 
the court as to obstruct or interrupt the due and orderly 
course of proceedings. These are punishable summarily. 
People v. Edwards, 69 Ill.App.3d 626, 26 Ill.Dec. 139, 387 
N.E.2d 969. They are also called "criminal" contempts, 
but that term is better used in contrast with "civil" 
contempts (see below). 
Constructive (or indirect) contempts are those which 
arise from matters not occurring in or near the presence 
of the court, but which tend to obstruct or defeat the 
administration of justice, and the term is chiefly used 
with reference to the failure or refusal of a party to obey 
. a lawful order, injunction, or decree of the court laying 
upon him a duty of action or forbearance. McGill v. 
McGill, 3 Ohio App.3d 455, 445 N.E.2d 11 63. Construc
tive contempts were formerly called "consequential," 
and this term is still in occasional use. 
Contempts are also classed as civil or criminal. The 
former are those quasi contempts which consist in the 
failure to do something which the party is ordered by 
the court to do for the benefit or advantage of another 
party to the proceeding before the court, while criminal 
con tempts are acts done in disrespect of the court or its 
process or which obstruct the administration of justice 
or tend to bring the court into disrespect. A civil 
contempt is not an offense against the dignity of the 
court, but against the party in whose behalf the man
date of the court was issued, and a fine is imposed for 
his indemnity. But criminal contempts are offenses 
upon the court such as wilful disobedience of a lawful 
writ, process, order, rule, or command of court, and a 
fine or imprisonment is imposed upon the contemnor for 
the purpose of punishment. Fed.R.Crim.Proc. 42; 18 
V.S.C.A. § 402. 
A court of the V nited States has power to punish by 
fine or imprisonment, at its discretion, such contempt of 
its authority, and none other, as: (1) misbehavior of any 
person in its presence or so near thereto as to obstruct 
the administration of justice; (2) misbehavior of any of 
its officers in their official transactions; (3) disobedience 
CONTENT VALIDATION 
or resistance to its lawful writ, process, order, rule, 
decree, or command. 18 V.S.C.A. § 401. 
Contempt for failure to make discovery is governed by 
Fed.R. Civil P. 37(b), which provides for imposition of 
sanctions. See also Sanction. 
Contempt power. Every court has inherent power to 
punish one for contempt of its judgments or decrees and 
for conduct within or proximate to the court which is 
contemptuous. See also Contempt of Congress; Con
tempt of court; Sanction. 
Contempt proceeding. The judicial hearing or trial 
conducted to determine whether one has been in con
tempt of court and to make an appropriate disposition. 
Such proceedings are sui generis and not necessarily 
connected to or identified with the proceeding out of 
which the contempt arose. 
Contenementum /k�nten�m€mt�m/. See Wainagium; 
Contentment. 
Contentious /k�nt€msh�s/. Contested; adversary; liti
gated between adverse or contending parties. A judicial 
proceeding not merely ex parte in its character, but 
comprising attack and defense as between opposing par
ties, is so called. Character of being quarrelsome or 
belligerent. 
Contentious jurisdiction. That part of jurisdiction of 
court that is concerned with contested matters, as op
posed to voluntary, undisputed matters. In English 
ecclesiastical law, that branch of the jurisdiction of the 
ecclesiastical courts which is exercised upon adversary 
or contentious (opposed, litigated) proceedings. 
Contentious possession. In stating the rule that the 
possession of land necessary to give rise to a title by 
prescription must be a "contentious" one, it is meant 
that it must be based on opposition to the title of the 
rival claimant (not in recognition thereof or subordina
tion thereto) and that the opposition must be based on 
good grounds, or such as might be made the subject of 
litigation. 
Contentment, contenement. A man's countenance or 
credit, which he has together with, and by reason of, his 
freehold; or that which is necessary for the support and 
maintenance of men, agreeably to i;heir several qualities 
or states of life. 
Comfort; consolation; ease; enjoyment; happiness; 
pleasure; satisfaction. 
Contents and not contents. In English parliamentary 
law, the "contents" are those who, in the house of lords, 
express assent to a bill; the "not" or "non-contents" 
dissent. 
Contents unknown. Words sometimes annexed to a bill 
of lading of goods in cases or other packaging. Their 
meaning is that the carrier only means to acknowledge 
that the shipment, as evidenced from the external condi
tion of such, is in good order. 
Content validation. Content validation of a test re
quires that an analysis of a job involved be undertaken 
to determine what characteristics are essential for ade-

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CONTENT VALIDATION 
quate performance of that job and the job analysis is 
then followed by formulation of a test which accurately 
reflects presence or absence of these necessary qualities. 
Com. of Pa. v. Glickman, D.C.Pa., 370 F.Supp. 724, 737. 
Conterminous Ikont;}rm:m::ls/. Adjacent; adjoining; 
having a common boundary; coterminous. 
Contest, v. To assert a defense to an adverse claim in a 
court proceeding. To oppose, resist, or dispute the case 
made by a plaintiff or prosecutor. To strive to win or 
hold. To controvert, litigate, call in question, challenge. 
To defend, as a suit or other proceeding. As used in a 
no-contest clause in a will, means any legal proceedings 
designed to thwart testator's wishes. In re Holter
mann's Estate, 206 C.A.2d 460, 23 Cal. Rptr. 685, 690. 
See Answer; Defense. 
Contestable clause. Provision in an insurance policy 
setting forth the conditions under which, or the period 
of time during which, the insurer may contest or void 
the policy. 
Contestatio litis Ikont::lsteysh(iy)ow layt::ls/. In Roman 
law, contestation of suit; the framing an issue; joinder 
in issue. The formal act of both the parties with which 
the proceedings in jure were closed when they led to a 
judicial investigation, and by which the neighbors whom 
the parties brought with them were called to testify. 
In old English law, coming to an issue; the issue so 
produced. 
Contestatio litis eget terminos contradictarios 
Ikont::lsteysh(iy)ow layt::ls iyj::lt t;}rm::lnows kontr::ldikteri
yows/. An issue requires terms of contradiction. To 
constitute an issue, there must be an affirmative on one 
side and a negative on the other. 
Contestation of suit. In an ecclesiastical cause, that 
stage of the suit which is reached when the defendant 
has answered the libel by giving in an allegation. See 
also Answer; Contest; Defense. 
Contested case. A court or administrative proceeding 
that is opposed by another party or interested person. 
Within the meaning of the Administrative Procedure 
Act this means a proceeding including but not restricted 
to rate making, price fixing, and licensing in which the 
legal rights, duties or privileges of a party are required 
by constitution or statute to be determined by an agency 
after an opportunity for an evidentiary hearing. Oliver 
v. Teleprompter Corp., Iowa, 299 N.W.2d 683, 686. 
Contested election. An election is contested whenever 
an objection is formally urged against it which, if found 
to be true in fact, would invalidate it. This is true both 
as to objections founded upon some constitutional provi
sion and to such as are based on statutes. 
Contest of will. See Will contest. 
Context. The context of a particular sentence or clause 
in a statute, contract, will, etc., comprises those parts of 
the text which immediately precede and follow it. The 
context may sometimes be scrutinized, to aid in the 
interpretation of an obscure passage. See Construction. 
320 
Contiguity. Exists where tracts of land touch or adjoin 
in a reasonably substantial physical sense, but line of 
demarcation between reasonableness or unreasonable
ness of a "contiguity" must be determined on the facts of 
each case. Belmont Fire Protection Dist. v. Village of 
Downers Grove, 92 Ill.App.3d 682, 48 Ill.Dec. 261, 264, 
416 N.E.2d 292, 295. 
Contiguous Ik::lntigyuw::ls/. In close proximity; neigh
boring; adjoining; near in succession; in actual close 
contact; touching at a point or along a boundary; 
bounded or traversed by. The term is not synonymous 
with "vicinal." Ehle v. Tenney Trading Co., 56 Ariz. 
241, 107 P.2d 210, 212. 
Continencia IkontinensiY::l/. In Spanish law, continen
cy or unity of the proceedings in a cause. 
Continens Ik6nt::ln::lnz/. In the Roman law, continuing; 
holding together. Adjoining buildings were said to be 
continentia. 
Continental. Pertaining or relating to a continent; 
characteristic of a continent; as broad in scope or pur
pose as a continent. 
Continental Congress. The first national legislative 
assembly in the United States, which met in 1774, in 
pursuance of a recommendation made by Massachusetts 
and adopted by the other colonies. In this Congress all 
the colonies were represented except Georgia. The del
egates were in some cases chosen by the legislative 
assemblies in the states; in others by the people direct
ly. The powers of the Congress were undefined, but it 
proceeded to take measures and pass resolutions which 
concerned the general welfare and had regard to the 
inauguration and prosecution of the war for indepen
dence. 
Continental currency. Paper money issued under the 
authority of the continental congress. 
Continentia Ikont::lnensh(iY)::I/. In old English practice, 
continuance or connection. Applied to the proceedings 
in a cause. 
Contingency Ik::lntinj::lnsiy I. Something that may or 
may not happen. Quality of being contingent or casual; 
the possibility of coming to pass; an event which may 
occur; a possibility; a casualty. A fortuitous event, 
which comes without design, foresight, or expectation. 
See also Contingent. 
Contingency contract. A contract, part of performance 
of which at least is dependent on the happening of a 
contingency. Sometimes used to refer to fee arrange
ment with attorney who agrees to accept his fee on the 
contingency of a successful outcome. See Fee. 
Contingency reserve (or fund). In accounting, a re
serve set up to cover possible or potential losses; e.g. 
possible judgment against company. 
A fund created in anticipation of incidental or unfore
seen expenditures. 
Contingency with double aspect. A remainder is said 
to be "in a contingency with double aspect," when there 
is another remainder limited on the same estate, not in

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321 
derogation of the first, but as a substitute for it in case it 
should fail. 
Contingent /k:mtinj�nt/. Possible, but not assured; 
doubtful or uncertain; conditioned upon the occurrence 
of some future event which is itself uncertain, or ques
tionable. Synonymous with provisional. This term, 
when applied to a use, remainder, devise, bequest, or 
other legal right or interest, implies that no present 
interest exists, and that whether such interest or right 
ever will exist depends upon a future uncertain event. 
As to contin gent Damages; Fee; Legacy; Limitation; 
Remainder; Trust; Use, and Will, see those titles. 
Contingent beneficiary. Person who may or will bene
fit if primary beneficiary dies or otherwise loses rights 
as beneficiary; e.g. person who will receive life insur
ance if primary beneficiary dies before insured. 
Contingent claim. One which has not accrued and 
which is dependent on some future event that may 
never happen. 
Contingent debt. One which is not presently fixed, but 
may become so in the future with the occurrence of 
some uncertain event. A debt in bankruptcy which may 
be proved and allowed and which arises out of contract. 
It does not encompass a tort claim on which no action or 
suit has been brought prior to adjudication. Resolute 
Ins. Co. v. Underwood, La.App., 230 So.2d 433, 435. 
Term may refer to debt incurred by state to which state 
pledges its credit and guarantees payment if revenues 
from funded project prove inadequate. Rochlin v. State, 
112 Ariz. 171, 540 P.2d 643. See also Contingent claim; 
Contingent liabil ity. 
Contingent estate, interest or right. An estate, inter
est or right which depends for its effect upon an event 
which may or may not happen. A contingent estate is 
one which is conditioned upon the existence of persons 
who answer the description of takers but who cannot be 
ascertained until the termination of a precedent or 
particular estate because the right to take is contingent 
upon the fact of their being alive or having survived 
until that time or upon the happening of some other 
uncertain event. Houston v. Harberger, Tex.Civ.App., 
377 S.W.2d 673, 678. 
Contingent fee. See Fee. 
Contingent fund. One set up by a municipality to pay 
expense items which will necessarily arise during the 
year but cannot appropriately be classified under any of 
the specific purposes for which other taxes are levied. 
First Nat. Bank of Norman v. City of Norman, 182 Okl. 
7, 75 P.2d 1109, 11 10. See also Contingency reserve. 
Contingent interest in personal property. A future 
interest not transmissible to the representatives of the 
party entitled thereto, in case he dies before it vests in 
possession. Thus, if a testator leaves the income of a 
fund to his wife for life, and the capital of the fund to be 
distributed among such of his children as shall be living 
at her death, the interest of each child during the 
widow's life-time is contin gent, and in case of his death 
is not transmissible to his representatives. 
Black's Law Dictionary 6th Ed.-8 
CONTINUING OFFENSE 
Contingent liability. One which is not now fixed and 
absolute, but which will become so in case of the occur
rence of some future and uncertain event. Warren Co. 
v. C. I. R., C.C.A.Ga., 135 F.2d 679, 684, 685. A potential 
liability; e.g. pending lawsuit, disputed claim, judgment 
being appealed, possible tax deficiency. See also Contin
gent claim; Contingent debt. 
Contingent remainder. See Remainder. 
Continual claim. In old English law, a formal claim 
made by a party entitled to enter upon any lands or 
tenements, but deterred from such entry by menaces, or 
bodily fear, for the purpose of preserving or keeping 
alive his right. It was called "continual", because it was 
required to be repeated once in the space of every year 
and day. It had to be made as near to the land as the 
party could approach with safety, and, when made in 
due form, had the same effect with, and in all respects 
amounted to, a legal entry. 3 Bl.Comm. 175. 
Continuance. The adjournment or postponement of a 
session, hearing, trial, or other proceeding to a subse
quent day or time; usually on the request or motion of 
one of the parties. Also the entry of a continuance 
made upon the record of the court, for the purpose of 
formally evidencing the postponement, or of connecting 
the parts of the record so as to make one continuous 
whole. Compare Recess. 
Continuance nisi /k�ntinyuw�ns naysay /. A postpone
ment on a condition or for a specific period of time. 
Continuando /k�ntinyuwrendow /. In old pleading, a 
form of allegation in which the trespass, criminal of
fense, or other wrongful act complained of is charged to 
have been committed on a specified day and to have 
"continued" to the present time, or is averred to have 
been committed at divers days and times within a given 
period or on a specified day and on divers other days 
and times between that day and another. This is called 
"laying the time with a continuando." 
Continuing. Enduring; not terminated by a single act 
or fact; subsisting for a definite period or intended to 
cover or apply to successive similar obligations or occur
rences. 
As to continu ing Breach; Consideration; Conspi racy; 
Covenant; Damages; Gu aranty; and Nuisance, see those 
titles. See also Perpetuity. 
Continuing contract. A contract calling for periodic 
performances over a space of time. 
Continuing jurisdiction. A doctrine invoked commonly 
in child custody or support cases by which a court which 
has once acquired jurisdiction continues to possess it for 
purposes of amending and modifying its orders therein. 
Curtis v. Gibbs, Tex., 511 S.W.2d 263. 
Continuing offense. Type of crime which is committed 
over a span of time as, for example, a conspiracy. As to 
period of statute of limitation, the last act of the offense 
controls for commencement of the period. A "continu
ing offense," such that only the last act thereof within 
the period of the statute of limitations need be alleged in

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CONTINUING OFFENSE 
the indictment or information, is one which may consist 
of separate acts or a course of conduct but which arises 
from that singleness of thought, purpose or action which 
may be deemed a single impulse. U. S. v. Benton & Co., 
Inc., D.C.Fla., 345 F.Supp. 11 01, 11 03. See also Crime; 
Offense. 
Continuity of life or existence. The death or other 
withdrawal of an owner of an entity does not terminate 
the existence of such entity. This is a characteristic of a 
corporation, since the death or withdrawal of a share
holder does· not affect the corporation's existence. 
Continuous. Uninterrupted; unbroken; not intermit
tent or occasional; so persistently repeated at short 
intervals as to constitute virtually an unbroken series. 
Connected, extended, or prolonged without cessation or 
interruption of sequence. Sullivan v. John Hancock 
Mut. Life Ins. Co. of Boston, Mo.App., 11 0 S.W.2d 870, 
877. As to continuous Crime and Easement, see those 
titles. 
Continuous adverse use. Term is interchangeable with 
the term "uninterrupted adverse use". 
Continuous injury. One recurring at repeated inter
vals, so as to be of repeated occurrence; not necessarily 
an injury that never ceases. 
Continuous treatment doctrine. Under this doctrine, 
the time in which to bring a medical malpractice action 
is stayed when the course of treatment which includes 
wrongful acts or omissions has run continuously and is 
related to the same original condition or complaint. 
Lomber v. Farrow, 91 A.D.2d 725, 457 N.Y.S.2d 638, 640. 
Continuously. Uninterruptedly; in unbroken sequence; 
without intermission or cessation; without intervening 
time; with continuity or continuation. 
Contour map. Map which shows the configuration and 
elevation of surface areas with curved lines. 
Contra. Against, confronting, opposite to; on the other 
hand; on the contrary; the reverse of. 
Contra account. See Account (Con tra). 
Contraband. In general, any property which is unlaw
ful to produce or possess. Things and objects outlawed 
and subject to forfeiture and destruction upon seizure. 
Com. v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 
A.2d 427, 429. Goods exported from or imported into a 
country against its laws. Smuggled goods. Articles, the 
importation or exportation of which, is prohibited by 
law. See e.g. 49 U.S.C.A. § 78l. 
Trafficking in contraband cigarettes is a federal 
crime. 18 U.S.C.A. § 2341 et seq. 
"Contraband per se" is property the mere possession 
of which is unlawful, while "derivative contraband" is 
property innocent by itself but used in perpetration of 
unlawful act. Com. v. Fassnacht, 246 Pa.Super. 42, 369 
A.2d 800, 802. 
See also Bootlegging; Counterfeit; Derivative contra
band; Gray market goods; Smuggling. 
Contraband of war. Certain classes of merchandise, 
such as arms and ammunition, which, by the rules of 
international law, cannot lawfully be furnished or car-
322 
ried by a neutral nation to either of two belligerents. If 
found in transit in neutral vessels, such goods may be 
seized and condemned for violation of neutrality. 
Contra bono� mores Ik6ntr;} b6wnows m6riyzl. 
Against good morals. Contracts contra bonos mores are 
void. 
Contracausator Ikontr;}kozeyt;}r/. A criminal; one 
prosecuted for a crime. 
Contraceptive. Any device or substance which prevents 
fertilization of the female ovum. 
Contraceptivism. The offense of distributing or pre
scribing contraceptives; the offense has little or no 
vitality today with respect to both married and unmar
ried persons. Baird v. Eisenstadt, 405 U.S. 438, 92 S.Ct. 
1029, 31 L.Ed.2d 349. 
Contract. An agreement between two or more persons 
which creates an obligation to do or not to do a particu
lar thing. As defined in Restatement, Second, Contracts 
§ 3: "A contract is a promise or a set of promises for the 
breach of which the law gives a remedy, or the perform
ance of which the law in some way recognizes as a 
duty." A legal relationship consisting of the rights and 
duties of the contracting parties; a promise or set of 
promises constituting an agreement between the parties 
that gives each a legal duty to the other and also the 
right to seek a remedy for the breach of those duties. 
Its essentials are competent parties, subject matter, a 
legal consideration, mutuality of agreement, and mutu
ality of obligation. Lamoureux v. Burrillville Racing 
Ass'n, 91 R.1. 94, 161 A.2d 213, 215. 
Under U.C.C., term refers to total legal obligation 
which results from parties' agreement as affected by the 
Code. Section 1-2 01(11). As to sales, "contract" and 
"agreement" are limited to those relating to present or 
future sales of goods, and "contract for sale" includes 
both a present sale of goods and a contract to sell goods 
at a future time. U.C.C. § 2-106(1). 
The writing which contains the agreement of parties, 
with the terms and conditions, and which serves as a 
proof of the obligation. 
Contracts may be classified on several different meth
ods, according to the element in them which is brought 
into prominence. The usual classifications are as fol
lows: 
Blanket contract. Contract covering a number or group 
of products, goods, or services for fixed period of time. 
Certain and hazardous. Certain contracts are those in 
which the thing to be done is supposed to depend on the 
will of the party, or when, in the usual course of events, 
it must happen in the manner stipulated. Hazardous 
contracts are those in which the performance of that 
which is one of its objects depends on an uncertain 
event. 
Co mmut ative and independent. Commutative contracts 
are those in which what is done, given, or promised by 
one party is considered as an equivalent to or in consid
eration of what is done, given, or prom ised by the other.

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323 
Independent contracts are those in which the mutual 
acts or promises have no relation to each other, either as 
equivalents or as considerations. 
Co nditional contract. A contract whose very existence 
and performance depends upon the happening of some 
contingency or condition expressly stated therein. It is 
not simply an executory contract, since the latter may 
be an absolute agreement to do or not to do something, 
but it is a contract whose very existence and perform
ance depend upon a contingency. 
Co nsensual and real. Consensual contracts are such as 
are founded upon and completed by the mere agreement 
of the contracting parties, without any external formali
ty or symbolic act to fix the obligation. Real contracts 
are those in which it is necessary that there should be 
something more than mere consent, such as a loan of 
money, deposit or pledge, which, from their nature, 
require a delivery of the thing (res). In the common law 
a contract respecting real property (such as a lease of 
land for years) is called a "real" contract. 
Cons tructive contract. See Constructive contract; also 
Express and implied; Quasi contract, below. 
Cos t-plus contract. See Costs. 
Divisible and indivisible. The effect of the breach of a 
contract depends in a large degree upon whether it is to 
be regarded as indivisible or divisible; i.e. whether it 
forms a whole, the performance of every part of which is 
a condition precedent to bind the other party, or is 
composed of several independent parts, the performance 
of any one of which will bind the other party pro tanto. 
The only test is whether the whole quantity of the 
things concerned, or the sum of the acts to be done, is of 
the essence of the contract. It depends, therefore, in the 
last resort, simply upon the intention of the parties. 
Integrity Flooring v. Zandon Corporation, 130 N.J.L. 
244, 32 A2d 507, 509. 
When a consideration is entire and indivisible, and it 
is against law, the contract is void in toto. When the 
consideration is divisible, and part of it is illegal, the 
contract is void only pro tanto. Gelpcke v. Dubuque, 68 
U.S. (1 Wall.) 220, 17 L.Ed. 530. 
Entire and severable. An entire contract is one the 
consideration of which is entire on both sides. The 
entire fulfillment of the promise by either is a condition 
precedent to the fulfillment of any part of the promise 
by the other. Whenever, therefore, there is a contract 
to pay the gross sum for a certain and definite consider
ation, the contract is entire. A severable contract is one 
the consideration of which is, by its terms, susceptible of 
apportionment on either side, so as to correspond to the 
unascertained consideration on the other side, as a con
tract to pay a person the worth of his services so long as 
he will do certain work; or to give a certain price for 
every bushel of so much corn as corresponds to a sam
ple. 
Where a contract consists of many parts, which may 
be considered as parts of one whole, the contract is 
entire. When the parts may be considered as so many 
CONTRACT 
distinct contracts, entered into at one time, and ex
pressed in the same instrument, but not thereby made 
one contract, the contract is a separable contract. But, 
if the consideration of the contract is single and entire, 
the contract must be held to be entire, although the 
subject of the contract may consist of several distinct 
and wholly independent items. 
Entire contract clause. A provision in the insurance 
contract stating that the entire agreement between the 
insured and insurer is contained in the contract, includ
ing the application (if attached), declarations, insuring 
agreement, exclusions, conditions, and endorsements. 
Exclusive contract. See Requirements contr act; Tying 
contract, below. 
Executed and executory. Contracts are also divided into 
executed and executory; executed, where nothing re
mains to be done by either party, and where the transac
tion is completed at the moment that the arrangement 
is made, as where an article is sold and delivered, and 
payment therefor is made on the spot; executory , where 
some future act is to be done, as where an agreement is 
made to build a house in six months, or to do an act on 
or before some future day, or to lend money upon a 
certain interest, payable at a future time. 
Express and implied. An express contract is an actual 
agreement of the parties, the terms of which are openly 
uttered or declared at the time of making it, being 
stated in distinct and explicit language, either orally or 
in writing. 
An implied contract is one not created or evidenced by 
the explicit agreement of the parties, but inferred by the 
law, as a matter of reason and justice from their acts or 
conduct, the circumstances surrounding the transaction 
making it a reasonable, or even a necessary, assumption 
that a contract existed between them by tacit under
standing. 
An implied contract is one inferred from conduct of 
parties and arises where plaintiff, without being request
ed to do so, renders services under circumstances indi
cating that he expects to be paid therefor, and defen
dant, knowing such circumstances, avails himself of 
benefit of those services. Chem- Tronix Laboratories, 
Inc. v. Solocast Co., AD., 5 Conn.Cir. 533, 258 A2d 11 0, 
11 3. It is an agreement which legitimately can be 
inferred from intention of parties as evidenced by cir
cumstances and ordinary course of dealing and common 
understanding of men. Martin v. Little, Brown & Co., 
304 Pa.Super. 424, 450 A.2d 984, 987. 
See also Constructive contract; and Quasi contract, 
below. 
Gratuitous and onerous. Gratuitous contracts are those 
of which the object is the benefit of the person with 
whom it is made, without any profit or advantage re
ceived or promised as a consideration for it. It is not, 
however, the less gratuitous if it proceeds either from 
gratitude for a benefit before received or from the hope 
of receiving one thereafter, although such benefit be of a 
pecuniary nature. Onerous contracts are those in which 
something is given or promised as a consideration for

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CONTRACT 
the engagement or gift, or some service, interest, or 
condition is imposed on what is given or promised, 
although unequal to it in value. A gratuitous contract 
is sometimes called a contract of beneficence. 
Investment contract. A contract in which one party 
invests money or property expecting a return on his 
investment. See also Investment contract; Security. 
Jo int and several: A joint contract is one made by two 
or more promisors, who are jointly bound to fulfill its 
obligations, or made to two or more promisees, who are 
jointly entitled to require performance of the same. A 
contract may be "several" as to any one of several 
promisors or promisees, if person has a legal right 
(either from the terms of the agreement or the nature of 
the undertaking) to enforce his individual interest sepa
rately from the other parties. Generally all contracts 
are joint where the interest of the parties for whose 
benefit they are created is joint, and separate where 
that interest is separate. 
Mutual interest, mixed, etc. Contracts of "mutual inter
est" are such as are entered into for the reciprocal 
interest and utility of each of the parties; as sales, 
exchange, partnership, and the like. "Mixed" contracts 
are those by which one of the parties confers a benefit 
on the other, receiving something of inferior value in 
return, such as a donation subject to a charge. Con
tracts "of beneficence" are those by which only one of 
the contracting parties is benefited; as loans, deposit 
and mandate. 
Open end contract. Contract (normally sales contract) in 
which certain terms (e.g. order amount) are deliberately 
left open. 
Output contract. A contract in which one party agrees 
to sell his entire output and the other agrees to buy it; 
it is not illusory, though it may be indefinite. Such 
agreements are governed by V.C.C. § 2-306. See also 
Requirements contract, below. 
Parol contract. A contract not in writing, or partially in 
writing. At common law, a contract, though it may be 
in writing, not under seal. See Parol evidence rule. 
Personal contract. A contract relating to personal prop
erty, or one which so far involves the element of person
al knowledge or skill or personal confidence that it can 
be performed only by the person with whom made, and 
therefore is not binding on his executor. 
Pre-contract. An obligation growing out of a contract or 
contractual relation, of such a nature that it debars the 
party from legally entering into a similar contract at a 
later time with any other person. 
Principal and accessory contract. A contract is accesso
ry when it is made to provide security for the perform
ance of an obligation. Suretyship, mortgage, and pledge 
are examples of such a contract. When the secured 
obligation arises from a contract, either between the 
same or other parties, that contract is the principal 
contract. Civ.Code La. art. 1913. 
324 
Quasi contract. Legal fiction invented by common law 
courts to permit recovery by contractual remedy in cases 
where, in fact, there is no contract, but where circum
stances are such that justice warrants a recovery as 
though there had been a promise. It is not based on 
intention or consent of the parties, but is founded on 
considerations of justice and equity, and on doctrine of 
unjust enrichment. It is not in fact a contract, but an 
obligation which the law creates in absence of any 
agreement, when and because the acts of the parties or 
others have placed in the possession of one person mon
ey, or its equivalent, under such circumstances that in 
equity and good conscience he ought not to retain it. It 
is what was formerly known as the contract implied in 
law; it has no reference to the intentions or expressions 
of the parties. The obligation is imposed despite, and 
frequently in frustration of their intention. See also 
Constructive contract. 
In the civil law, a contractual relation arising out of 
transactions between the parties which give them mutu
al rights and obligations, but do not involve a specific 
and express convention or agreement between them. 
The lawful and purely voluntary acts of a man, from 
which there results any obligation whatever to a third 
person, and sometimes a reciprocal obligation between 
the parties. Civ.Code La. art. 2293. 
Reco rd, specialty, simple. Contracts of record are such 
as are declared and adjudicated by courts of competent 
jurisdiction, or entered on their records, including judg
ments, recognizances, and statutes staple. These are 
not properly speaking contracts at all, though they may 
be enforced by action like contracts. Specialties, or 
special contracts, are contracts under seal, such as deeds 
and bonds. All others are included in the description 
"simple" contracts; that is, a simple contract is one that 
is not a contract of record and not under seal; it may be 
either written or oral, in either case, it is called a 
"parol" contract, the distinguishing feature being the 
lack of a seal. 
Requirements contract. A contract in which one party 
agrees to purchase his total requirements from the other 
party and hence it is binding and not illusory. See also 
Output contract, above. 
Shipment contract. See that title. 
Special contract. A contract under seal; a specialty; as 
distinguished from one merely oral or in writing not 
sealed. But in common usage this term is often used to 
denote an express or explicit contract, one which clearly 
defines and settles the reciprocal rights and obligations 
of the parties, as distinguished from one which must be 
made out, and its terms ascertained, by the inference of 
the law from the nature and circumstances of the trans
action. A special contract may rest in parol, and does 
not mean a contract by specialty; it is defined as one 
with peculiar provisions not found in the ordinary con
tracts relating to the same subject-matter. 
Subcontract. A contract subordinate to another con
tract, made or intended to be made between .the con
tracting parties, on one part, or some of them, and a

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325 
third party (i.e. subcontractor). One made under a prior 
contract. 
Where a person has contracted for the performance of 
certain work (e.g., to build a house), and he in turn 
engages a third party to perform the whole or a part of 
that which is included in the original contract (e.g., to do 
the carpenter work), his agreement with such third 
person is called a "subcontract," and such person is 
called a "subcontractor." The term "subcontractor" 
means one who has contracted with the original contrac
tor for the performance of all or a part of the work or 
services which such contractor has himself contracted to 
perform. 
Tying contract. See Tying arrangement. 
Unconscionable contract. One which no sensible man 
not under delusion, duress, or in distress would make, 
and such as no honest and fair man would accept. 
Franklin Fire Ins. Co. v. Noll, 11 5 Ind.App. 289, 58 
N.E.2d 947, 949, 950. A contract the terms of which are 
excessively unreasonable, overreaching and one-sided. 
See Adhesion contract; Unconscionabil ity. 
Unenforceable contract. An unenforceable contract is 
one for the breach of which neither the remedy of 
damages nor the remedy of specific performance is avail
able, but which is recognized in some other way as 
creating a duty of performance, though there has been 
no ratification. Restatement, Second, Contracts § 8. 
When a contract has some legal consequences but may 
not be enforced in an action for damages or specific 
performance in the face of certain defenses, such as the 
Statute of Frauds or a statute of limitations, the con
tract is said to be "unenforceable." 
Unilateral and bilateral. A unilateral contract is one in 
which one party makes an express engagement or un
dertakes a performance, without receiving in return any 
express engagement or promise of performance from the 
other. Bilateral (or reciprocal) contracts are those by 
which the parties expressly enter into mutual engage
ments, such as sale or hire. Kling Bros. Engineering 
Works v. Whiting Corporation, 320 Ill.App. 630, 51 
N.E.2d 1004, 1007. When the party to whom an engage
ment is made makes no express agreement on his part, 
the contract is called unilateral, even in cases where the 
law attaches certain obligations to his acceptance. Es
sence of a "unilateral contract" is that neither party is 
bound until the promisee accepts the offer by perform
ing the proposed act. King v. Industrial Bank of Wash
ington, D.C.App., 474 A.2d 151, 156. It consists of a 
promise for an act, the acceptance consisting of the 
performance of the act requested, rather than the prom
ise to perform it. Antonucci v. Stevens Dodge, Inc., 73 
Misc.2d 173, 340 N.Y.S.2d 979, 982. Compare Bilateral 
contract. 
Usurious contract. See Usurious contract. 
Vo idable contract. See Voidable contract. 
Vo id contract. See Void contract. 
CONTRACTION 
Written contract. A "written contract" is one which in 
all its terms is in writing. Commonly referred to as a 
formal contract. 
See also Adhesion contract; Agreement; Aleatory of 
contract; Alteratio.1 of contract; Bilateral contract; Bottom 
hole contract; Breach of contract; Colla teral contract; 
Compact; Constructive contract; Contingency contract; 
Entire output contract; Executory contract; Formal con
tract; Futures contract; Impairing the obligation of con
tracts; Indemnity; Innominate contracts; Installment con
tract; Integrated contract; Investment contract; Letter 
contract; Letter of intent; Literal contract; Marketing con
tract; Novation; Oral contract; Parol evidence rule; Privi
ty (Privity of contract); Procurement contract; Quasi con
tract; Requirement contract; Severable contract; Simu lat
ed contract; SpeCialty. For "liberty of con
tract", see Liberty. 
Contract carrier. A carrier which furnishes transporta
tion service to meet the special needs of shippers who 
cannot be adequately served by common carriers. Sa
mardick of Grand Island-Hastings, Inc. v. B. D. C. Corp., 
183 Neb. 229, 159 N.W.2d 310, 315. A transportation 
company that carries, for pay, the goods of certain 
customers only as contrasted to a common carrier that 
carries the goods of the public in general. 
Contract clause. Provision in U.S.C onst., Art. I, Sec. 10, 
to the effect that no state shall pass a law impairing 
obligation of contract. Trustees of Dartmouth College v. 
Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629. 
Contract, estoppel by. "Estoppel by contract" is in
tended to embrace all cases in which there is an actual 
or virtual undertaking to treat a fact as settled. It 
means party is bound by terms of own contract until set 
aside or annulled for fraud, accident, or mistake. Unit
ed Fidelity Life Ins. Co. v. Fowler, Tex.Civ.App., 38 
S.W.2d 128, 131. There are two sorts of "estoppel by 
contract," estoppel to deny truth of facts agreed on and 
settled by force of entering into contract, and estoppel 
arising from acts done under or in performance of con
tract. Finch v. Smith, 177 Okl. 307, 58 P.2d 850, 851. 
Contract for deed. An agreement by a seller to deliver 
the deed to the property when certain conditions have 
been met, such as completion of payments by purchaser. 
Often such contracts for deed are in turn resold. 
Contract for sale of goods. Includes both a contract for 
present sale of goods and a contract to sell goods at a 
future time. U.C.C. § 2-106(1). 
Contract for sale of land. A contract which calls for 
conveyance of interest in real estate and requires a 
writing signed by party sought to be charged as being 
within Statute of Frauds. See also Contract for deed; 
Contract of sale. 
Contract implied in fact. See Contract. 
Contract implied in law. See Contract. 
Contraction. Abbreviation; abridgment or shortening 
of a word by omitting a letter or letters or a syllable, 
with a mark over the place where the elision occurs.

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CONTRACTION 
This was customary in records written in the ancient 
"court hand," and is frequently found in the books 
printed in black letter. 
Contract not to compete. An agreement by an employ
ee that he will not for a stated period and within a 
specific geographical area compete with his employer 
after termination of his employment. These contracts 
are enforceable if the time span and area are reason
able. 
Contract of affreightment. A contract for hiring a 
vessel. Peterson v. S. S. Wahcondah, D.C.La., 235 
F.Supp. 698, 700. See also Affreightment. 
Contract of benevolence. A contract made for the 
benefit of one of the contracting parties only, as a 
mandate or deposit. 
Contract of guaranty. A promise to pay or an assump
tion of performance of some duty upon the failure of 
another who is primarily obligated in the first instance. 
Ammerman v. Miller, 488 F.2d 1285, 1293, 159 U.S.App. 
D.C. 385. See also Guaranty. 
Contract of insurance. Any contract by which one of 
the parties for a valuable consideration, known as a 
premium, assumes a risk of loss or liability that rests 
upon the other, pursuant to a plan for the distribution of 
such risk, is a contract of insurance, whatever the form 
it takes or the name it bears. See Insurance; Policy of 
insurance. 
Contract of record. A contract which has been declared 
and adjudicated by a court having jurisdiction, or which 
is entered of record in obedience to, or in carrying out, 
the judgments of a court. 
Contract of sale. A contract by which one of the con
tracting parties, called the "seller," enters into an obli
gation to the other to cause him to have freely, by a title 
of proprietor, a thing, for the price of a certain sum of 
money, which the other contracting party, called the 
"buyer," on his part obliges himself to pay. Agreement 
under which seller agrees to convey title to property 
upon payment by buyer under terms of contract. See 
also Contract for deed; Contract for sale of land. 
Contractor. One who contracts to do work for another. 
This term is strictly applicable to any person who enters 
into a contract, but is commonly reserved to designate 
one who, for a fixed price, undertakes to procure the 
performance of works or services on a large scale, or the 
furnishing of goods in large quantities, whether for the 
public or a company or individual. Such are generally 
classified as general contractors (responsible for entire 
job) and sub-contractors (responsible for only portion of 
job; e.g. plumber, carpenter). 
A contractor is a person who, in the pursuit of any 
independent business, undertakes to do a specific piece 
of work for another or other persons, using his own 
means and methods without submitting himself to their 
control in respect to all its details, and who renders 
service in the course of an independent occupation rep
resenting the will of his employer only as to the result of 
326 
his work and not as to the means by which it is accom
plished. Setzer v. Whitehurst, Ky., 339 S.W.2d 454, 456. 
One who in pursuit of independent business under
takes to perform a job or piece of work, retaining in 
himself control of means, method and manner of accom
plishing the desired result. 
See also General contractor; Independent contractor; 
Prime contractor; Subco ntractor. 
Contract system. As applied to state prisons, this 
phrase signifies that the labor of the prisoners is utilized 
by private persons or contractors. 
Contractual obligation. The obligation which arises 
from a contract or agreement. 
Contract under seal. For centuries before the doctrine 
of consideration was developed, and long before informal 
contracts were enforced, contracts under seal were en
forced. The sealed instrument required no considera
tion. The required formalities are: a sufficient writing, 
a seal, and delivery. The seal may be actual, or im
pressed on the paper, or merely recited by the word 
"seal" or "L.S." 
Contractus. Lat. Contract; a contract; contracts. 
Contractus bome fidei /k;mtrrekt;)s b6wniy fitydiyay /. 
In Roman law, contracts of good faith. Those contracts 
which, when brought into litigation, were not deter
mined by the rules of the strict law alone, but allowed 
the judge to examine into the bona fides of the transac
tion, and to hear equitable considerations against their 
enforcement. In this they were opposed to contracts 
stricti juris, against which equitable defenses could not 
be entertained. 
Contractus civiles /k;mtrrekt;)s siv;)liyz/. In Roman 
law, civil contracts. Those contracts which were recog
nized as actionable by the strict civil law of Rome, or as 
being founded upon a particular statute, as distin
guished from those which could not be enforced in the 
courts except by the aid of the prretor, who, through his 
equitable powers, gave an action upon them. The latter 
were called "contractus prretorii. " 
Contractus est quasi actus contra actum /k;)ntrrekt;)s 
est kweysay rekt;)s k6ntr;) rekt;)m/. A contract is, as it 
were, act against act. 
Contractus ex turpi causa, vel contra bonos mores, 
nullus est /k;)ntrrekt;)s eks t:}rpay k6z;), vel k6ntr;) b6w
nows m6riyz, n:}};)s est/. A contract founded on a base 
consideration, or against good morals, is null. 
Contractus legem ex conventione accipiunt 
/k.mtrrekt;)s liyj;)m eks k;)nvenshiy6wniy ;)ksipiy;)nt/. 
Contracts receive legal sanction from the agreement of 
the parties. 
Contradict. To disprove. To prove a fact contrary to 
what has been asserted by a witness.

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327 
Contradiction in terms. A phrase of which the parts 
are expressly inconsistent, as e.g., "an innocent mur
der"; "a fee-simple for life." 
Contraescritura Ikontraeskrit ur�/. In Spanish law, a 
counter-writing; counter-letter. A document executed 
at the same time with an act of sale or other instru
ment, and operating by way of defeasance or otherwise 
modifying the apparent effect and purport of the origi
nal instrument. 
Contrafactio Ikontr �freksh(iy)ow I. Counterfeiting; as 
con trafactio sigilli regis, counterfeiting the king's seal. 
Contra formam collationis Ikontr� form�m k�ley
shiyown�s/. In old English law, a writ that issued 
where lands given in perpetual alms to lay houses of 
religion, or to an abbot and convent, or to the warden or 
master of a hospital and his convent, to find certain poor 
men with necessaries, and do divine service, etc., were 
alienated, to the disherison of the house and church. By 
means of this writ the donor or his heirs could recover 
the lands. 
Contra formam doni Ikontr� form�m downay I. 
Against the form of the grant. See Formedon. 
Contra formam feoffamenti Ikontr� form�m fiyf�
mentay/. In old English law, a writ that lay for the 
heir of a tenant, enfeoffed of certain lands or tenements, 
by charter of feoffment from a lord to make certain 
services and suits to his court, who was afterwards 
distrained for more services than were mentioned in the 
charter. 
Contra formam statuti Ikontr� form�m st�ty6.wtay I. 
In criminal pleading. (Contrary to the form of the 
statute in such case made and provided.) The usual 
conclusion of every indictment, etc., brought for an 
offense created by statute. 
Contrainte par corps Ikontreynt par kor/. In French 
law, the civil process of arrest of the person, which is 
imposed upon vendors falsely representing their proper
ty to be unincumbered, or upon persons mortgaging 
property which they are aware does not belong to them, 
and in other cases of moral heinousness. 
Contra jus belli Ikontr� j�s belay I. Lat. Against the 
law of war. 
Contra jus commune Ikontr� j�s k�myuwniy I. Against 
common right or law; contrary to the rule of the com
mon law. 
Contra legem facit qui id facit quod lex prohibet; in 
fraudem vero qui, salvis verbis legis, sententiam 
ejus circumvenit Ikontr� liyj�m feys�t kway id feys�t 
kwod leks pr�hib�t; in frod�m virow kway, srelv�s v�rb�s 
liyj�s, sentensh(iy)�m iyj�s s�rk�mriyn�tI. He does con
trary to the law who does what the law prohibits; he 
acts in fraud of the law who, the letter of the law being 
inviolate, uses the law contrary to its intention. 
Contra legem terrre Ikontr� 1iyj�m rehriy I. Against the 
law of the land. 
CONTRAROTULATOR 
Contraligatio Ikontr�bgeysh(iy)ow /. In old English 
law, counter-obligation. Literally, counter-binding. Est 
enim obli gatio quasi contraligatio. 
Contramandatio Ikontr�mrendeysh(iy)ow/. A counter
manding. Co ntramandatio placiti, in old English law, 
was the respiting of a defendant, or giving him further 
time to answer, by countermanding the day fixed for 
him to plead, and appointing a new day; a sort of 
imparlance. 
Contramandatum Ikontr�mrendeyt�m/. A lawful ex
cuse, which a defendant in a suit by attorney alleges for 
himself to show that the plaintiff has no cause of com
plaint. 
Contra negantem principia non est disputandum 
Ikontr� n�grent�m prinsipiy� non est dispyuwtrend�m/. 
There is no disputing against one who denies first prin
ciples. 
Contra non valentem agere nulla currit prrescriptio 
Ikontr� non v�lent�m eyj�riy n�b k�hr�t pr�
skripsh(iy)ow/. No prescription runs against a person 
unable to bring an action. 
Contra omnes gentes Ikontr� omniyz jentiyz/. Against 
all people. Formal words in old covenants of warranty. 
Contra pacem Ikontr� peys�m/. Against the peace. A 
phrase used in the Latin forms of indictments, and also 
of actions for trespass, to signify that the offense alleged 
was committed against the public peace, i.e., involved a 
breach of the peace. The full formula was contra pacem 
domini regis, against the peace of the lord the king. In 
modern pleading, in this country, the phrase "against 
the peace of the commonwealth" or "of the people" is 
used. 
Contraplacitum Ikontr�plres�t�m/. In old English law, 
a counter-plea. 
Contrapositio Ikontr�p�zish(iy)ow /. In old English law, 
a plea or answer. A counter-position. 
Contra preferentem Ikontr� prer�rent�m/. Against the 
party who proffers or puts forward a thing. As a rule of 
strict construction, "contra proferentem," requires that 
contract be construed against person preparing terms 
thereof. Matter of City Stores Co., Bkrtcy.N.Y., 9 B.R. 
717, 720. 
Contra proferentem Ikontr� prOf�rent�m/. Used in 
connection with the construction of written documents 
to the effect that an ambiguous provision is construed 
most strongly against the person who selected the lan
guage. U. S. v. Seckinger, 397 U.S. 203, 216, 90 S.Ct. 
880, 25 L.Ed.2d 224. 
Contrarients Ik�ntreriy�nts /. This word was used in 
the time of Edw. II to signify those who were opposed to 
the government, but were neither rebels nor traitors. 
Contrariorum contraria est ratio Ikontreriyor�m 
k�ntreriy� est reysh(iy)ow/. The reason of contrary 
things is contrary. 
Contrarotulator Ikontr�rowty�ley t�r/kontr�rowty�leyt�
r/. A controller. One whose business it was to observe

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CONTRAROTULATOR 
the money which the collectors had gathered for the use 
of the king or the people. 
Contrarotulator pipee Ikontr�rowty�leyt�r paypiy I. An 
officer of the exchequer that writeth out summons twice 
every year, to the sheriffs, to levy the rents and debts of 
the pipe. 
Contrary. Against; opposed or in opposition to; in 
conflict with. 
Contrary to law. Illegal; in violation of statute or legal 
regulations at a given time. In respect of verdict, in 
conflict with the law contained in court's instructions. 
Contrary to the evidence. Against the evidence; 
against the weight of the evidence. 
Contrat IkontrM. In French law, contracts are of the 
following varieties: (1) Bilateral, or synallagmatique, 
where each party is bound to the other to do what is just 
and proper; or (2) unila teral, where the one side only is 
bound; or (3) commut atif, where one does to the other 
something which is supposed to be an equivalent for 
what the other does to him; or (4) aleatoir e, where the 
consideration for the act of the one is a mere chance; or 
(5) contrat de bienfaisance, where the one party procures 
to the other a purely gratuitous benefit; or (6) contrat it 
titre onereux, where each party is bound under some 
duty to the other. See Contract. 
Contra tabulas Ik6ntr� treby�l�s/. In the civil law, 
against the will (testament). 
Contratallia Ikontr�treliy�/. In old English law, a 
counter-tally. A term used in the exchequer. 
Contratatio rei alienee animo furandi, est furtum 
Ikontr�teysh(iy)ow riyay eyliyiyniy ren�mow fy�rrenday 
est f;)rt�m/. The touching or removing of another's 
property, with an intention of stealing, is theft. 
Contratenere Ikontr�t�niriy I. To hold against; to with
hold. 
Contra vadium et plegium Ik6ntr� vrediy�m �t 
plejiy�m/. In old English law, against gage and pledge. 
Contravening equity. A right or equity, in another 
person, which is inconsistent with and opposed to the 
equity sought to be enforced or recognized. 
Contravention. In French law, an act which violates 
the law, a treaty, or an agreement which the party has 
made. That infraction of the law punished by a fine 
which does not exceed fifteen francs and by an imprison
ment not exceeding three days. 
Contra veritatem lex nunquam aliquid permittit 
Ik6ntr� v�r�teyt�m leks n;)IJkw�m rel�kw�d p�rmit�t/. 
The law never suffers anything contrary to truth. 
Contrectare Ikontr�kteriy /. Lat. In the civil law, to 
handle; to take hold of; to meddle with. 
In old English law, to treat. Vel male con trectet; or 
shall ill treat. 
Contrectatio Ikontr�kteysh(iy )ow/. In the civil and old 
English law, touching; handling; meddling. The act of 
) 
328 
removing a thing from its place in such a manner that, 
if the thing be not restored, it will amount to theft. 
Contrectatio rei alienee, animo furandi, est furtum 
Ikontr�kteysh(iy)ow riyay eyliyiyniy, ren�mow 
fy�rrenday, est f;)rt�m/. The touching or removing of 
another's property, with an intention of stealing, is 
theft. 
Contrefacon Ikontr�fas6n/. In French law, the offense 
of printing or causing to be printed a book, the copyright 
of which is held by another, without authority from him. 
Contre-maitre Ikontre-maytr (�)/. In French marine 
law, the chief officer of a vessel, who, in case of the 
sickness or absence of the master, commanded in his 
place. Literally, the countermaster. 
Contribute. To lend assistance or aid, or give some
thing, to a common purpose; to have a share in any act 
or effect; to discharge a joint obligation. Christman v. 
Reichholdt, Mo.App., 150 S.W.2d 527, 532. As applied to 
negligence signifies causal connection between injury 
and negligence, which transcends and is distinguished 
from negligent acts or omissions which play so minor a 
part in producing injuries that law does not recognize 
them as legal causes. See Negligence (Contributory neg
ligence). 
Contributing cause. Generic term used to describe any 
factor which contributes to a result, though its causal 
nexus may not be immediate. See Cause; Negligence 
(Contributory negligence). 
Contributing to delinquency. A criminal offense con
sisting of an act or omission which tends to make a child 
delinquent. 
Contribution. Right of one who has discharged a com
mon liability to recover of another also liable, the ali
quot portion which he ought to pay or bear. Under 
principle of "contribution," a tort-feasor against whom a 
judgment is rendered is entitled to recover proportional 
shares of judgment from other joint tort-feasors whose 
negligence contributed to the injury and who were also 
liable to the plaintiff. Dawson v. Contractors Transport 
Corp., 151 U.S.App.D.C. 401, 467 F.2d 727, 729. The 
share of a loss payable by an insurer when contracts 
with two or more insurers cover the same loss. The 
insurer's share of a loss under a coinsurance or similar 
provision. The sharing of a loss or payment among 
several. The act of any one or several of a number of 
co-debtors, co-sureties, etc., in reimbursing one of their 
number who has paid the whole debt or suffered the 
whole liability, each to the extent of his proportionate 
share. A number of states have adopted the Uniform 
Contribution Among Tortfeasors Act. 
In the civil law, a partition by which the creditors of 
an insolvent debtor divide among themselves the pro
ceeds of his property proportionably to the amount of 
their respective credits. Division which is made among 
the heirs of the succession of the debts with which the 
succession is charged, according to the proportion which 
each is bound to bear.

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In maritime law, where the property of one of several 
parties interested in a vessel and cargo has been volun
tarily sacrificed for the common safety (as by throwing 
goods overboard to lighten the vessel), such loss must be 
made good by the contribution of the others, which is 
termed "general average ". 
See also General average contribution; Indem nity. 
Contribution clause. Insurance clause providing that 
where more than one policy covers loss, insurers shall 
share such loss proportionally in accordance with their 
policy limits. 
Contributione facienda /kontr;}byuwshiy6wniy freshiy
end;}/. In old English law, a writ that lay where tenants 
in common were bound to do some act, and one of them 
was put to the whole burthen, to compel the rest to 
make contribution. 
Contribution to capital. Funds or property contributed 
by shareholders as the financial basis for operation of 
the corporation's business, and signifies resources whose 
dedication to users of the corporation is made the foun
dation for issuance of capital stock and which became 
irrevocably devoted to satisfaction of all obligations of 
corporation. See also Capital. 
Contributory, n. One who contributes or is required to 
contribute. A person liable to contribute to the assets of 
a company which is being wound up, as being a member 
or (in some cases) a past member thereof. 
Contributory, ad}. Joining in the promotion of a given 
purpose; lending assistance to the production of a given 
result. Said of a pension plan where employees, as well 
as employers, make payments to a pension fund. 
As to contributory Infringement and Negligence, see 
those titles. 
Contributory cause. See Cause; Contributing cause; 
Negligence (Contributory negligence). 
Contributory infringement. The intentional aiding of 
one person by another in the unlawful making, selling 
or using of a patented invention. Stamicarbon, N.V. v. 
McNally-Pittsburg Mfg. Corp., D.C.Kan., 302 F.Supp. 
525, 531. 
Contributory negligence. See Negligence. 
Contrivance. Any device which has been arranged gen
erally to deceive. An instrument or article designed to 
accomplish a specific objective and made by use of 
measure of ingenuity. 
Contrive. To devise; to plan; to plot; to scheme. Ernst 
and Ernst v. Hochfelder, 425 U.S. 185, 199, 96 S.Ct. 
1375, 1384, 47 L.Ed.2d 668. 
Control, v. To exercise restraining or directing influ
ence over. To regulate; restrain; dominate; curb; to 
hold from action; overpower; counteract; govern. 
Control, n. Power or authority to manage, direct, supe
rintend, restrict, regulate, govern, administer, or over
see. The ability to exercise a restraining or directing 
influence over something. Martin v. State, 175 Ind.App. 
503, 372 N.E.2d 1194, 11 97. The "control" involved in 
CONTROLLED SUBSTANCE ACTS 
determining whether principal and agent relationship or 
master and servant relationship is involved must be 
accompanied by power or right to order or direct. Mid
Continent Petroleum Corporation v. Vicars, 221 Ind. 
387, 47 N .E.2d 972. 
As used in statute making it unlawful for any person 
to possess or "control" any narcotic drug, is given its 
ordinary meaning, namely, to exercise restraining or 
directing influence over, and also has been defined to 
relate to authority over what is not in one's physical 
possession. Speaks v. State, 3 Md.App. 371, 239 A.2d 
600, 604. 
Rule that driver must at all times have automobile 
under control, means having it under such control that 
it can be stopped before doing injury to any person in 
any situation that is reasonably likely to arise under the 
circumstances. Kindt v. Reading Co., 352 Pa. 419, 43 
A.2d 145, 147. 
See also Exclusive control; Im mediate control. 
Control group. With reference to those whose commu
nications with an attorney on behalf of a corporation are 
within the attorney-client privilege, this group consists 
of those persons who have authority to control, or sub
stantially participate in, decisions regarding action to be 
taken on the advice of a lawyer, or who are authorized 
members of a group that has such power. Duplan Corp. 
v. Deering Milliken, Inc., D.C.S.C. 397 F.Supp. 1146, 
1163. 
Controlled company. A company, the majority of 
whose voting stock is held by an individual or corpora
tion. For example, a subsidiary of a parent company. 
The level of control depends on the amount of stock 
owned. See Control person. 
Controlled foreign corporation. Any foreign corpora
tion in which more than 50 percent of the total com
bined voting power of all classes of stock entitled to vote 
or the total value of the stock of the corporation is 
owned by "U.S. shareholders" on any day during the 
taxable year of the foreign corporation. For purposes of 
this definition, a U.S. shareholder is any U.S. person 
who owns, or is considered as owning, 10 percent or 
more of the total combined voting power of all classes of 
voting stock of the foreign corporation. Stock owned 
directly, indirectly, and constructively is used in this 
measure. 
Controlled group. A controlled group of corporations is 
required to share the lower-level corporate tax rates and 
various other tax benefits among the members of the 
group. A controlled group may be either a brother-sis
ter or a parent-subsidiary group. 
Controlled substance. Any drug so designated by law 
whose availability is restricted; i.e., so designated by 
federal or state Controlled Substances Acts (q.v.). In
cluded in such classification are narcotics, stimulants, 
depressants, hallucinogens, and marijuana. 
Controlled Substance Acts. Federal and state acts (the 
latter modeled on the Uniform Controlled Substances 
Act) the purpose of which is to control the distribution,

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CONTROLLED SUBSTANCE ACTS 
classification, sale, and use of drugs. The majority of 
states have such acts. 21 U.S.C.A. § 801 et seq. 
Controller. See Comptroller. 
Controlment Ik;mtrolm;}nt/. In old English law, the 
controlling or checking of another officer's account; the 
keeping of a counter-roll. 
Control person. In securities law, a person who has 
actual power or influence over an issuer. Kersh v. 
General Council of Assemblies of God, C.A.Cal., 804 F.2d 
546, 548. One who formulates and directs corporate 
policy or who is deeply involved in the important busi
ness affairs of a corporation. State ex reI. McLeod v. C 
& L Corp., Inc., App., 280 S.C. 519, 313 S.E.2d 334, 34l. 
Sales of securities by control persons are subject to 
many of the requirements applicable to the sale of 
securities directly by the issuer. 
Control premium. Refers to the pricing phenomenon 
by which shares that carry the power to control a 
corporation are more valuable per share than the shares 
that do not carry a power of control. The control 
premium is often computed not on a per share basis but 
on the aggregate increase in value of the "control block" 
over the going market or other price of shares which are 
not part of the "control block". 
Controver Ik;}ntrowv;}r/. In old English law, an inven
tor or deviser of false news. 
Controversy. A litigated question; adversary proceed
ing in a court of law; a civil action or suit, either at law 
or in equity; a justiciable dispute. To be a "controver
sy" under federal constitutional provision limiting exer
cise of judicial power of United States to cases and 
controversies there must be a concrete case admitting of 
an immediate and definitive determination of legal 
rights of parties in an adversary proceeding upon facts 
alleged, and claims based merely upon assumed poten
tial invasions of rights are not enough to warrant judi
cial intervention. Southern Ry. Co. v. Brotherhood of 
Locomotive Firemen and Enginemen, D.C.Ga., 223 
F.Supp. 296, 303. In the constitutional sense, it means 
more than disagreement and conflict; rather it means 
kind of controversy courts traditionally resolve. U.S. v. 
Nixon, U.S.D ist.Col., 418 U.S. 683, 94 S.Ct. 3090, 3102, 
41 L.Ed.2d 1039. This term is important in that judicial 
power of the courts extends onl y to cases and "controver
sies." See Actual controversy; Case; Cause of action; 
Justiciable controversy. 
Controvert. To dispute; to deny; to oppose or contest; 
to take issue on. 
Contubernium Ikont;}b�rniy;}m/. In Roman law, the 
marriage of slaves; a permitted cohabitation. 
Contumace capiendo Ikont;}meysiy krepiyendow I. In 
English law, excommunication in all cases of contempt 
in the spiritual courts is discontinued by 53 Geo. III, c. 
127, § 2, and in lieu thereof, where a lawful citation or 
sentence has not been obeyed, the judge shall have 
power, after a certain period, to pronounce such person 
contumacious and in contempt, and to signify the same 
to the court of chancery, whereupon a writ de contumace 
330 
capiendo shall issue from that court, which shall have 
the same force and effect as formerly belonged, in case 
of contempt, to a writ de excommuni cato capiendo. See 
Excommunication. 
Contumacious conduct. Wilfully stubborn and diso
bedient conduct, commonly punishable as contempt of 
court. See Contempt. 
Contumacy Ikont(y);}m;}siy/. The refusal or intentional 
omission of a person who has been duly cited before a 
court to appear and defend the charge laid against him, 
or, if he is duly before the court, to obey some lawful 
order or direction made in the cause. In the former 
case it is called "presumed" contumacy; in the latter, 
"actual." 
Contumax Ikont;}mreks/. One accused of a crime who 
refuses to appear and answer to the charge. An outlaw. 
Contumely Ikonty;}m;}liy/. Rudeness compounded of 
haughtiness and contempt; scornful insolence; despite
ful treatment; disdain, contemptuousness in act or 
speech; disgrace. 
Contuse. To bruise; to injure or disorganize a part of 
without breaking the skin. Ansley v. Travelers Ins. Co., 
27 Tenn.App. 720, 173 S.W.2d 702, 704. 
Contusion. A bruise; an injury to any external part of 
the body by the impact of a fall or the blow of a blunt 
instrument, without laceration of the flesh, and either 
with or without a tearing of the skin, but in the former 
case it is more properly called a "contused wound." 
Contutor Ik;}ntyuwt;}r/. Lat. In the civil law, a co-tu
tor, or co-guardian. 
Conusance Ikony;}z;}ns/. In English law, cognizance or 
jurisdiction. Con usance of pleas. 
Conusance, claim of Ikleym ;}v kony;}z;}ns/. See Cogni
zance. 
Conusant Ikony;}z;}nt/. Cognizant; acquainted with; 
having actual knowledge; as, if a party knowing of an 
agreement in which he has an interest makes no objec
tion to it, he is said to be conusant. 
Conusee Ikony;}ziy I. See Cognizee. 
Conusor Ikony;}z;}r/. See Cognizor. 
Convalescence. Gradual recovery of health or physical 
strength after illness. 
Convenable. In old English law, suitable; agreeable; 
convenient; fitting. 
Convene. To call together; to cause to assemble; to 
convoke. In the civil law, to bring an action. 
Convenience and necessity. See Public convenience 
and necessity. 
Convenient. Proper; just; suitable; fit; adapted; prop
er; becoming appropriate. 
Convenit Ik;}nviyn;}t/. Lat. In civil and old English 
law, it is agreed; it was agreed. 
Convent. The fraternity of an abbey or priory, as socie
tas is the number of fellows in a college. A religious

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331 
house, now regarded as a merely voluntary association, 
not importing civil death. 
An association or community of recluses devoted to a 
religious life under a superior. A body of monks, friars, 
or nuns, constituting one local community; now usually 
restricted to a convent of nuns. Sacred Heart Academy 
of Galveston v. Karsch, 173 Tenn. 618, 122 S.W.2d 416, 
417. 
Conventicle Ik:mvEmt:;>k:;>l/. A private assembly or 
meeting for the exercise of religion. The word was first 
an appellation of reproach to the religious assemblies of 
Wycliffe in the reigns of Edward III, and Richard II, and 
was afterwards applied to a meeting of dissenters from 
the established church. As this word in strict propriety 
denotes an unlawful assembly, it cannot be justly ap
plied to the assembling of persons in places of worship 
licensed according to the requisitions of law. 
Conventio Ik:;>nvensh(iy)ow/. In Canon law, the act of 
summoning or calling together the parties by summon
ing the defendant. 
In Civil law, a compact, agreement, or convention. 
An agreement between two or more persons respecting a 
legal relation between them. The term is one of very 
wide scope, and applies to all classes of subjects in which 
an engagement or business relation may be founded by 
agreement. It is to be distinguished from the negotia
tions or preliminary transactions on the object of the 
convention and fixing its extent, which are not binding 
so long as the convention is not concluded. 
In contracts, an agreement; a covenant. 
Conventio in unum Ik:;>nvensh(iy)ow in yUwn:;>m/. In 
the civil law, the agreement between the two parties to 
a contract upon the sense of the contract proposed. It is 
an essential part of the contract, following the pollicita
tion or proposal emanating from the one, and followed 
by the consension or agreement of the other. 
Convention. An agreement or compact; esp. interna
tional agreement, e.g. Geneva Convention. An assembly 
or meeting of members or representatives of political, 
legislative, fraternal, etc. organizations. 
Cons titutional convention. See Constitution. 
English law. An extraordinary assembly of the houses 
of lords and commons, without the assent or summons of 
the sovereign. It can only be justified ex necessitate rei, 
as the Parliament which restored Charles II, and that 
which disposed of the crown and kingdom to William 
and Mary. Also the name of an old writ that lay for the 
breach of a covenant. 
Judicial convention. See Judicial. 
Legislative and political. An assembly of delegates or 
representatives chosen by the people for special and 
extraordinary legislative purposes, such as the framing 
or revision of a state constitution (i.e. constitutional 
convention). Also an assembly of delegates chosen by a 
political party, or by the party organization in a larger 
or smaller territory, to nominate candidates for an ap
proaching election. 
CONVENTIONS 
Public and international law. A pact or agreement 
between states or nations in the nature of a treaty; 
usually applied (a) to agreements or arrangements pre
liminary to a formal treaty or to serve as its basis, or (b) 
international agreements for the regulation of matters 
of common interest but not coming within the sphere of 
politics or commercial intercourse, such as international 
postage or the protection of submarine cables. An 
agreement between states relating to trade, finance, or 
other matters considered less important than those 
usually regulated by a treaty. See Compact; Treaty. 
Roman law. An agreement between parties; a pact. A 
convention was a mutual engagement between two per
sons, possessing all the subjective requisites of a con
tract, but which did not give rise to an action, nor 
receive the sanction of the law, as bearing an "obli
gation," until the objective requisite of a solemn ceremo
nial, (such as stipulatio ) was supplied. In other words, 
convention was the informal agreement of the parties, 
which formed the basis of a contract, and which became 
a contract when the external formalities were superim
posed. The division of conventions into contracts and 
pacts was important in the Roman law. The former 
were such conventions as already, by the older civil law, 
founded an obligation and action; all the other conven
tions were termed "pacts." These generally did not 
produce an actionable obligation. Actionability was 
subsequently given to several pacts, whereby they re
ceived the same power and efficacy that contracts re
ceived. 
Conventional. Depending on, or arising from, the mu
tual agreement of parties; as distinguished from legal, 
which means created by, or arising from, the act of the 
law. 
As to conventional Estates; Interest; Mortgage; Subro
gation; and Trustee, see those titles. 
Conventional lien. A lien is conventional where the 
lien, general or particular, is raised by the express 
agreement and stipulation of the parties, in circum
stances where the law alone would not create a lien 
from the mere relation of the parties or the details of 
their transaction. 
Conventional loan. Real estate loan (usually from bank 
or savings and loan association) not involving govern
ment participation by way of insurance (FHA) or guar
antee (VA). 
Conventione Ik:;>nvenshiyowniy/. The name of a writ 
for the breach of any covenant in writing, whether real 
or personal. 
Conventions. This name is sometimes given to com
pacts or treaties with foreign countries as to the appre
hension and extradition of fugitive offenders. See Extra
dition. 
Conventio privatorum non potest publico juri dero
gare Ik:;>nvensh(iy)ow prayv:;>tor:;>m non powt:;>st 
p;)bbkow juray diyr:;>geriy/. The agreement of private 
persons cannot derogate from public right, i.e., cannot

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CONVENTIO VINCIT LEGEM 
prevent the application of general rules of law, or render 
valid any contravention of law. 
Conventio vincit legem Ik:mvEmsh(iy)ow vins�t liyj�m/. 
The express agreement of parties overcomes [prevails 
against] the law. 
Conventual church. In ecclesiastical law, that which 
consists of regular clerks, professing some order or reli
gion; or of dean and chapter; or other societies of 
spiritual men. 
Conventuals Ik�nvenchuw�lz/. Religious men united in 
a convent or religious house. 
Conventus Ik�nvent�s /. Lat. A coming together; a 
convention or assembly. Co nventus magnatum vel 
procerum (the assembly of chief men or peers) was one of 
the names of the English parliament. 1 Bl.Comm. 148. 
In the civil law, the term meant a gathering together 
of people; a crowd assembled for any purpose; also a 
convention, pact, or bargain. 
Conventus juridicus Ik�nvent�s j�rid�k �s/. In the Ro
man law, a court of sessions held in the Roman prov
inces, by the president of the province, assisted by a 
certain number of counsellors and assessors, at fixed 
periods, to hear and determine suits, and to provide for 
the civil administration of the province. 
Conversant. One who is in the habit of being in a 
particular place is said to be conversant there. Ac
quainted; familiar. 
Conversantes Ikonv�rsrentiyz/. In old English law, con
versant or dwelling; commorant. 
Conversation. Manner of living; behavior habits of life; 
conduct; as in the phrase "chaste life and conversation." 
Criminal conversation means seduction of another 
man's wife, considered as an actionable injury to the 
husband. See Criminal (Criminal conversati on). 
Converse. To engage in conversation; social interac
tion. Reversed in order or relation. The transposition 
of the subject and predicate in a proposition, as: "Every
thing is good in its place." Co nverse, "Nothing is good 
which is not in its place." 
Converse instruction. A negative of a positive state
ment of an essential element or elements of a cause of 
action as stated in a verdict-directing instruction. State 
v. Collins, Mo.App., 587 S.W.2d 303, 306. 
Conversion. An unauthorized assumption and exercise 
of the right of ownership over goods or personal chattels 
belonging to another, to the alteration of their condition 
or the exclusion of the owner's rights. Any unautho
rized act which deprives an owner of his property per
manently or for an indefinite time. Unauthorized and 
wrongful exercise of dominion and control over anoth
er's personal property, to exclusion of or inconsistent 
with rights of owner. Catania v. Garage De Le Paix, 
Inc., Tex.Civ.App., 542 S.W.2d 239, 241. See also Embez
zlement; Equitable conversion; Fraudulent conversion; In
volu ntary conversion. 
332 
Act of exchanging a convertible security for another 
security. See Convertible securities. 
Co mmercial instruments. An instrument is converted 
when: a drawee to whom it is delivered for acceptance 
refuses to return it on demand; or any person to whom 
it is delivered for payment refuses on demand either to 
pay or to return it; or it is paid on a forged indorsement. 
U.C.C. § 3- 419(1). 
Co nstructive conversion. An implied or virtual conver
sion, which takes place where a person does such acts in 
reference to the goods of another as amount in law to 
the appropriation of the property to himself. 
Direct conversion. The act of actually appropriating the 
property of another to his own beneficial use and enjoy
ment, or to that of a third person, or destroying it, or 
altering its nature, or wrongfully assuming title in him
self. 
Equitable conversion. The exchange of property from 
real to personal or from personal to real, which takes 
place under some circumstances in the consideration of 
the law, such as, to give effect to directions in a will or 
settlement, or to stipulations in a contract, although no 
such change has actually taken place, and by which 
exchange the property so dealt with becomes invested 
with the properties and attributes of that into which it 
is supposed to have been converted. It is sometimes 
necessary however for certain purposes of devolution 
and transfer to regard the property in its changed condi
tion as though the change has not absolutely taken 
place. 
Conversion or convertibility clause. A provision in an 
adjustable-rate mortgage that allows the borrower to 
change from an ARM to a fixed-rate loan at some point 
during the term. A provision in convertible securities 
specifying conversion rights. See Convertible securities. 
Conversion, custodia legis. Converting property in the 
custody of the court. One who has a lien against prop
erty and replevins the same to obtain possession and 
then sells the property to satisfy the lien before a 
judgment has entered in the replevin matter, commits 
conversion by this sale. Brunswick Corp. v. J & P, Inc., 
D.C.Ok!., 296 F.Supp. 544, 545. 
Conversion hysteria. A neurosis in which there is 
gross loss or impairment of some somatic or physical 
function caused by emotional conflicts, such as hysteri
cal blindness, hysterical paralysis, hysterical tremors, 
hysterical limping. Used by sufferer to protect himself 
from anxiety. 
Conversion reaction. The transformation of an emo
tion into physical manifestations. (E.g., an injured per
son converts an emotional disturbance into physical 
symptoms.) Kilarjian v. Horvath, C.A.N.Y., 379 F.2d 
547, 548. 
Conversion securities. The securities into which con
vertible securities may be converted. See Convertible 
securities. 
Convert. See Conversion.

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333 
Convertible bond. See Bond. 
Convertible debt. A bond or debenture or note which 
under certain conditions and at certain times may be 
converted into stock by the holder. See Convertible 
securities. 
Convertible securities. A bond, debenture or preferred 
share which may be exchanged by the owner for com
mon stock or another security, usually of the same 
company, in accordance with the terms of the issue. 
The ratio between the convertible and conversion securi
ties is fixed at the time the convertible securities are 
issued, and is usually protected against dilution. 
Fo rced conversion. Refers to a conversion of a convert
ible security that follows a call for redemption at a time 
when the value of the conversion security into which it 
may be converted is greater than the amount that will 
be received if the holder permits the security to be 
redeemed. Normally, a holder of a convertible redeema
ble security has a period of time after the call for 
redemption to determine whether or not to exercise the 
conversion privilege. 
Convertible term insurance. Type of term insurance 
which may be changed to permanent (whole life) insur
ance carrying loan values, built in values, etc. 
Convey. To transfer or deliver to another. To pass or 
transmit the title to property from one to another. To 
transfer property or the title to property by deed, bill of 
sale, or instrument under seal. Used popularly in sense 
of "assign", "sale", or "transfer". See Conveyance. 
Conveyance Ik:mvey; ms/. In its most common usage, 
transfer of title to land from one person, or class of 
persons, to another by deed. Term may also include 
assignment, lease, mortgage or encumbrance of land. 
Generally, every instrument in writing by which an 
estate or interest in the realty is created. Smalley v. 
Juneau Clinic Bldg. Corp., Alaska, 493 P.2d 1296, 1299. 
See also Alienation; Demise; Fraudulent conveyance; In
volu ntary conveyance. 
Absolute or conditional conve yance. An absolute con
veyance is one by which the right or property in a thing 
is transferred, free of any condition or qualification, by 
which it might be defeated or changed, as an ordinary 
deed of lands, in contradistinction to a mortgage, which 
is a conditional conveyance. Brown v. United States, 
C.C.A.Pa., 95 F.2d 487, 489. 
Fraudulent conve yance. See Fraudulent. 
Mesne conveyance. An intermediate conveyance; one 
occupying an intermediate position in a chain of title 
between the first grantee and the present holder. 
Primary conveyances. Those by means whereof the ben
efit or estate is created or first arises; as distinguished 
from those whereby it may be enlarged, restrained, 
transferred, or extinguished. The term includes feoff
ment, gift, grant, lease, exchange, and partition, and is 
opposed to derivative conveyances, such as release, sur
render, confirmation, etc. 2 Bl.Comm. 309. 
CONVICTION 
Secondary con veyances. The name given to that class of 
conveyances which presuppose some other conveyance 
precedent, and only serve to enlarge, confirm, alter, 
restrain, restore, or transfer the interest granted by 
such original conveyance. 2 Bl.Comm. 324. Otherwise 
termed "derivative conveyances" (q.v.). 
Vo luntary conveyance. A conveyance without valuable 
consideration; such as a deed or settlement in favor of a 
wife or children. 
Conveyancer. One whose business it is to prepare 
deeds, mortgages, examine titles to real estate, and 
perform other functions relating to the transfer of real 
property. 
In England, one who holds a license to conveyance. 
Administration of Justice Act, 1985, Part II. 
Conveyancing. Act of performing the various functions 
relating to the transfer of real property such as exami
nation of land titles, preparation of deeds, mortgages, 
closing agreements, etc. 
Conveyancing counsel to the court of chancery. In 
English law, certain counsel, not fewer than six in 
number, appointed by the lord chancellor, for the pur
pose of assisting the court of chancery, or any judge 
thereof, with their opinion in matters of title and con
veyancing. 
Conveyor's heirs. Under common law rule, when a 
remainder was limited to heirs of grantor or testator, 
such heirs did not take a remainder; instead, the estate 
was considered a reversion in the grantor or testator, 
and hence, if heirs took at all, they would take by 
descent, not by purchase. This rule, known as rule of 
worthier title (Braswell v. Braswell, 195 Va. 971, 81 
S.E.2d 560) has been abolished in many jurisdictions. 
See Worthier title doctrine. 
Convicia si irascaris tua divulgas; spreta exolescunt 
Ik:mvish(iy)� say ayr�sker�s tyuw� d�v;}lg�s, spriyt� 
eksk�lesk�nt l. If you be moved to anger by insults, you 
publish them; if despised, they are forgotten. 
Convicium Ik�nvish(iy)� m/. In the civil law, the name 
of a species of slander or injury uttered in public, and 
which charged some one with some act contra bonos 
mores. 
Convict, v. To find a person guilty of a criminal charge, 
either upon a criminal trial, a plea of guilty, or a plea of 
nolo contendere. The word was formerly used also in 
the sense of finding against the defendant in a civil case. 
Convict, n. One who has been adjudged guilty of a 
crime and is serving a sentence as a result of such 
conviction. A prisoner. 
Convicted. See Conviction. 
Conviction. In a general sense, the result of a criminal 
trial which ends in a judgment or sentence that the 
accused is guilty as charged. The final judgment on a 
verdict or finding of guilty, a plea of guilty, or a plea of 
nolo contendere, but does not include a final judgment

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CONVICTION 
which has been expunged by pardon, reversed, set aside, 
or otherwise rendered nugatory. 
The final consummation of the prosecution including 
the judgment or sentence, or as is frequently the case, 
the judgment or sentence itself. Ex parte White, 75 
Okl.Cr. 204, 130 P.2d 103, 104. The stage of a criminal 
proceeding where the issue of guilt is determined. Unit
ed States v. Locke, 409 F.Supp. 600. 
A record of the summary proceedings upon any penal 
statute before one or more justices of the peace or other 
persons duly authorized, in a case where the offender 
has been convict ed and sentenced. 
Summary conviction. The conviction of a person (usual
ly for a minor misdemeanor), as the result of his trial 
before a magistrate or court, without a jury. 
Convincing proof. Such as is sufficient to establish the 
proposition in question, beyond hesitation, ambiguity, or 
reasonable doubt, in an unprejudiced mind. See Beyond 
a reasonable doubt; Clear and convincing proof; Proof. 
Convivium I k:mviviy;}m I . A tenure by which a tenant 
was bound to provide meat and drink for his lord at 
least once in the year. 
Convocation. In ecclesiastical law, the general assem
bly of the clergy to consult upon ecclesiastical matters. 
Convoy. An escort for protection, either by land or sea. 
A naval force for the protection of merchant-ships and 
others, during the whole voyage, or such part of it as is 
known to require such protection. An association for a 
hostile object. In undertaking it, a nation spreads over 
the merchant vessel an immunity from search which 
belongs only to a national ship. By joining a convoy 
every individual ship puts off her pacific character, and 
undertakes for the discharge of duties which belong only 
to the military marine, and adds to the numerical, if not 
to the real strength of the convoy. The Atlanta, 16 U.S. 
(3 Wheat.) 409, 423, 4 L.Ed. 422. 
Co-obligor. A joint obligor; one bound jointly with 
another or others in a bond or obligation. 
Cool state of blood. In the law of homicide, this term 
does not mean that the defendant must be calm or 
tranquil or display the absence of emotion, but rather 
that the defendant's anger or emotion must not have 
been such as to disturb defendant's faculties and reason. 
State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 
817, 820. See also Cold blood; Cooling time; Premedita
tion. 
Cooley doctrine. Doctrine which holds that state is 
deprived of all regulatory power as to subjects which 
"are in their nature national, or admit only of one 
uniform system or plan of regulation." Cooley v. Board 
of Wardens of Port of Philadelphia, 53 U.S. (12 How.) 
299, 13 L.Ed. 996. See also Preemption. 
Cooling off period. A period of time in which no action 
of a particular sort may be taken by either side in a 
dispute. For example, a period of a month after a union 
or a company files a grievance against the other. Dur-
334 
ing this period., the union may not strike and the compa
ny may not lock-out the employees. A period of time in 
which a buyer may cancel a purchase; e.g. many states 
by statute require a three-day cancellation period for 
door-to-door sales or home improvement contracts. An 
automatic delay in some states, in addition to ordinary 
court delays, between the filing of divorce papers and 
the divorce hearing. 
Cooling time. Time to recover "cool blood" after severe 
excitement or provocation. Time for the mind to be
come so calm and sedate as that it is supposed to 
contemplate, comprehend, and coolly act with reference 
to the consequences likely to ensue. 
Cooperate. To act jointly or concurrently toward a 
common end. 
Cooperation. Action of co-operating or acting jointly 
with another or other. Association of persons for com
mon benefit. In patent law, unity of action to a com
mon end or a common result, not merely joint or simul
taneous action. 
Cooperation clause. That provision in insurance poli
cies which requires the insured to cooperate with the 
insurer in defe,nse of a claim. "Co-operation" by insured 
within a co-operation clause means that there shall be 
fair and frank. disclosure of information reasonably de
manded by insurer to enable it to determine whether 
there is genuine defense. Prudence Mut. Cas. Co. v. 
Dunn, 30 Ill.App.2d 469, 175 N.E.2d 286. 
Cooperative Ikowop(;})r;}t;}v I. A corporation or associa
tion organized for purpose of rendering economic servic
es, without ga.in to itself, to shareholders or members 
who own and control it. United Grocers, Limited v. U. 
S., D.C.Cal., 186 F.Supp. 724, 733. Type of business that 
is owned by its member-customers. 
Cooperatives vary widely in character and in the 
manner in which they function. They have been classi
fied along functional lines as follows: (a) consumer coop
eratives (inclu.ding consumer stores, housing coopera
tives, utility cooperatives, and health cooperatives); (b) 
marketing cooperatives; (c) business purchasing cooper
atives; (d) workers' productive cooperatives; (e) finan
cial cooperatives (such as the credit union, mutual sav
ings bank, savings and loan association, and production 
credit association); (f) insurance cooperatives; (g) labor 
unions; (h) trade associations; and (i) self-help coopera
tives. 
The required form for a cooperative may differ in 
different states; e.g. unincorporated association, cooper
ative association, nonprofit corporation. 
See also Consumer's cooperative; Cooperative corpora
tion. 
Coo perative apartment. See that title. 
Farmer's coopera tive. Major function of such coopera
tive is to market the combined crops, produce or live
stock of its farmer-owners. The cooperative attempts to 
sell crops and livestock at the optimum price. For 
example, it might store grain until the price of such 
rises.

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335 
Cooperative apartment. Dwelling units in a multi
dwelling complex in which each owner has an interest 
in the entire complex and a lease of his own apartment, 
though he does not own his apartment as in the case of a 
condominium. This is organized in corporate form and 
is generally treated as a corporation. However, it is 
somewhat of a legal hybrid in that the stockholder 
possesses both stock and a lease and the relationship 
between the tenant shareholder and the owner-coopera
tive is largely determined by reading together the certif
icate of incorporation, stock offering prospectus, stock 
subscription agreement, and proprietary lease. Sanders 
v. Tropicana, 31 N.C.App. 276, 229 S.E.2d 304, 308. 
Cooperative association. See Cooperative. 
Cooperative corporation. A "cooperative corporation", 
while having a corporate existence, is primarily an 
organization for purpose of providing services and prof
its to its members and not for corporate profit. Linnton 
Plywood Ass'n v. State Tax Commission, 241 Or. 1, 403 
P.2d 708, 709. See Cooperative. 
Cooperative federalism. The distribution of power be
tween national and local or state governments while 
each recognizes the powers of the other. 
Cooperative housing. See Cooperative apartment. 
Cooperative negligence. See Negligence (Co ntributory 
negligence). 
Coopertio Ikow;}p;)rsh(iy)ow/. In old English law, the 
head of branches of a tree cut down; though coo pertio 
arborum is rather the bark of timber trees felled, and 
the chumps and broken wood. 
Coopertus Ikow;}p;)rt;}s/. Covert; covered. 
Co-optation Ikowopteysh;}n/. A concurring choice; the 
election, by the members of a close corporation, of a 
person to fill a vacancy. 
Coordinate. Equal, of the same order, rank, degree or 
importance; not subordinate. Empire Ins. Co. of Texas 
v. Cooper, Tex.Civ.App ., 138 S.W.2d 159, 164. Adjusted 
to, in harmony with. lEolian-Skinner Organ Co. v. 
Shepard Broadcasting Service, C.C.A.Mass., 81 F.2d 392, 
395. As to courts of "coordinate jurisdiction," see this 
term, infra, and Jurisdiction. 
Coordinate jurisdiction. That which is possessed by 
courts of equal rank, degree, or authority, equally com
petent to deal with the matter in question, whether 
belonging to the same or different systems; concurrent 
jurisdiction. See Jurisdiction. 
Coordinate system. A method of land description. It 
uses a measurement based on an intersection of a de
fined north-south axis and a defined east-west axis. 
Co-owner. Two or more persons who own property, real 
or personal. Tenants in common of property. Broad 
term which may describe joint tenants as well. 
Coparcenary Ikowparsiyn::lriy I. Such estate arises 
where several take by descent from same ancestor as 
one heir, all coparceners constituting but one heir and 
having but one estate and being connected by unity of 
COPPER AND SCALES 
interest and of title. Winters Nat. Bank & Trust Co. v. 
Riffe, Ohio Prob., 194 N.E.2d 921, 924. A species of 
estate, or tenancy, which exists where lands of inheri
tance descend from the ancestor to two or more persons. 
It arose in England either by common law or particular 
custom. By common law, as where a person, seised in 
fee-simple or fee-tail, dies, and his next heirs are two or 
more females, his daughters, sisters, aunts, cousins, or 
their representatives; in this case they all inherit, and 
these coheirs, are then called "coparceners," or, for 
brevity, "parceners" only. 2 Bl.Comm. 187. By particu
lar custom, as where lands descend, as in gavelkind, to 
all the males in equal degree, as sons, brothers, uncles, 
etc. An estate which several persons hold as one heir, 
whether male or female. This estate has the three 
unities of time, title, and possession; but the interests of 
the coparceners may be unequal. 2 Bl.Comm. 188. To
day, this type of tenancy is obsolete. 
Coparceners I kowparsiyn::lrz I . Persons to whom an es
tate of inheritance descends jointly, and by whom it is 
held as an entire estate. 2 Bl.Comm. 187. 
Coparticeps Ikowpart;}seps/. In old English law, a co
parcener. 
Coparties. Parties having like status, such as, co-defen
dants. Murray v. Haverford Hospital Corp., D.C.Pa., 
278 F.Supp. 5, 7. 
"Co-party," within rule (F.R.C.P. 13) providing that a 
pleading may state as a cross-claim any claim by one 
party against a co-party arising out of the transaction or 
occurrence that is the subject matter of the original 
action, does not mean merely equal party, such as one of 
several original defendants, but applies to a third-party 
defendant brought into the case by an original defen
dant on a theory of liability over. Fogel v. United Gas 
Imp. Co., D.C.Pa., 32 F.R.D. 202, 204. 
Copartner. One who is a partner with one or more 
other persons; a member of a partnership. 
Copartnership. A partnership. 
Copeland Act. Federal act prohibiting wage kickbacks 
or rebates being imposed on employees engaged in con
struction or repair of public buildings or works. See 18 
U.S.C.A. § 874. 
Copeman, or copesman. A chapman (q.v.). 
Copesmate Ik6wpsmeyt /. A merchant; a partner in 
merchandise. 
Copia I k6piY::l I . Lat. In civil and old English law, 
opportunity or means of access. 
In old English law, a copy. Cop ia libelli, the copy of a 
libel. 
Copia libelli deliberanda Ik6piY::l l::lbelay d;}lib::lrrend::l/. 
In old English law, the name of a writ that lay where a 
man could not get a copy of a libel at the hands of a 
spiritual judge, to have the same delivered to him. 
Coppa Ik6p::l /. In English law, a crop or cock of grass, 
hay, or corn, divided into titheable portions, that it may 
be more fairly and justly tithed. 
Copper and scales. See Mancipatio.

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COPRINCIPAL 
Coprincipal. One of two or more participants in crime 
who actually perpetrate crime or are present aiding and 
abetting person who commits crime. One of two or 
more persons who has appointed agents whom they have 
right to control. 
Copula /k6py;}I;}/. The corporal consummation of mar
riage. Copula (in logic), the link between subject and 
predicate contained in the verb. 
Copulatio verborum indicat acceptationem in eodem 
sensu /kopy;}h�ysh(iy)ow v;}rb6r;}m ind;}k;}t reks;}p
teyshiy6wn;}m in iy6wd;}m sens(y)uw /. Coupling of 
words together shows that they are to be understood in 
the same sense. 
Copulative term. One which is placed between two or 
more others to join them together. 
Copy; Copying. A transcript, double, imitation, or re
production of an original writing, painting, instrument, 
or the like. 
Under best evidence rule, a copy may not be intro
duced until original is accounted for. Certified copies 
are admissible under statutes in most jurisdictions. 
Similarly, photographic copies and prints from photo
graphic films are admissible by statute. 
Copies of all pleadings, motions and other papers must 
be served on all parties to action under Fed.R. Civil P. 
5(b). Admissions concerning the genuineness of copies 
of documents are governed by Fed.R. Civil P. 36(a). 
A duplicate is admissible in evidence to the same 
extent as an original unless (1) a genuine question is 
raised as to the authenticity of the original or (2) in the 
circumstances it would be unfair to admit the duplicate 
in lieu of the original. Fed.Evid.R. 1003. 
In copyright law, "copying" of a literary work consists 
in exact or substantial reproduction of the original, 
using original as a model as distinguished from an 
independent production of same thing, and a "copy" is 
that which comes so near to original as to give every 
person seeing it the idea created by original and must be 
such that ordinary observation would cause it to be 
recognized as having been taken from the work of anoth
er. Turner v. Century House Pub. Co., 56 Misc.2d 1071, 
290 N.Y.S.2d 637, 642. 
See also Authentication; Authentic copy; Conformed 
copy; Dupl icate. 
Examined co pies are those which have been compared 
with the original or with an official record thereof. 
Copyhold. In England a species of estate at will, or 
customary estate, the only visible title to which consist
ed of the copies of the court rolls, which were made out 
by the steward of the manor, on a tenant's being admit
ted to any parcel of land, or tenement belonging to the 
manor. It was an estate at the will of the lord, yet such 
a will as was agreeable to the custom of the manor, 
which customs were preserved and evidenced by the 
rolls of the several courts baron, in which they were 
entered. 2 Bl.Comm. 95. In a larger sense, copyhold 
was said to import every customary tenure (that is, 
every tenure pending on the particular custom of a 
336 
manor), as opposed to free socage, or freehold, which 
later (since the abolition of knight-service) was con
sidered as the general or common-law tenure of the 
country. Under the English Law of Property Act of 
1922 copyholds were enfranchised and became freehold 
(or in certain cases leasehold). 
Copyhold commissioners. Commissioners appointed to 
carry into effect various acts of parliament, having for 
their principal objects the compulsory commutation of 
manorial burdens and restrictions (fines, heriots, rights 
to timber and minerals, etc.), and the compulsory en
franchisement of copyhold lands. 
Cop yholder. A tenant by copyhold tenure (by copy of 
court-roll). 2 Bl.Comm. 95. 
Privileged cop yholds. Those copyhold estates which are 
said to be held according to the custom of the manor, 
and not at the will of the lord, as common copyholds are. 
They include customary freeholds and ancient de
mesnes. 
Copyright. The right of literary property as recognized 
and sanctioned by positive law. An intangible, incorpo
real right granted by statute to the author or originator 
of certain literary or artistic productions, whereby he is 
invested, for a specified period, with the sole and exclu
sive privilege of multiplying copies of the same and 
publishing and selling them. 
Copyright protection subsists in original works of au
thorship fixed in any tangible medium of expression, 
now known or later developed, from which they can be 
perceived, reproduced, or otherwise communicated, ei
ther directly or with the aid of a machine or device. 
Works of authorship include the following categories: 
(1) literary works; (2) musical works, including any 
accompanying words; (3) dramatic works, including any 
accompanying music; (4) pantomimes and choreographic 
works; (5) pictorial, graphic, and sculptural works; (6) 
motion pictures and other audiovisual works; and (7) 
sound recordings. In no case does copyright protection 
for an original work of authorship extend to any idea, 
procedure, process, system, method of operation, con
cept, principle, or discovery, regardless of the form in 
which it is described, explained, illustrated, or embodied 
in such work. Copyright Act, 17 U.S.C.A. § 102. 
Prior to the 1976 Copyright Act there was a distinc
tion between common law and statutory protection 
whereby, generally, common law copyright protected 
works prior to publication and the federal copyright 
laws protected works following publication. The 1976 
Act attempted to abolish all significant aspects of com
mon law copyright and create a unified protection sys
tem by beginning statutory protection as soon as the 
work was reduced to a concrete form. 17 U.S.C.A. 
§ 102(a). Under the 1976 Act an author is protected as 
soon as a work is recorded in some concrete way, since 
the Act protects all expressions upon fixation in a tangi
ble medium. 17 U.S.C.A. § 102(a). Protection under 
the 1976 Act is secure until fifty years after the death of 
the author. 17 U.S.C.A. § 302(a).

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337 
In addition to injunctive, impoundment, and civil 
damages relief, criminal penalties are also provided for 
copyright infringement. 17 V.S.C.A. § 502 et seq.; 18 
V.S.C.A. § 2319. 
See also Adaptation right; Collective work; Common-law 
copyright; Compilation; Compulsory license; Created; De
rivative work; Descriptive mark; Display; Fair use doc
trine; First sale rule; Infringement; Limited publication; 
Literary property; Literary work; Work made for hire. 
Copyright notice. A necessary notice in the form re
quired by law which is placed in each published copy of 
the work copyrighted. Copyright Act, 17 V.S.C.A. § 40l. 
Copyright owner. As term is used with respect to any 
one of the exclusive rights comprised in a copyright, 
refers to the owner of that particular right. Copyright 
Act, 17 U.S.C.A. § 10l. 
Coraagium, or coraage Ikor(;})eyjiy;}m/. Measures of 
corn. An unusual and extraordinary tribute, arising 
only on special occasions. They are thus distinguished 
from services. Mentioned in connection with hidage 
and carvage. 
Coram Ikor;}m/. Lat. Before; in presence of. Applied 
to persons only. 
Coram domino rege Ikor;}m dom;}now riyjiy I. Before 
our lord the king. Co ram domino rege ubicumque tunc 
fuerit Anglire, before our lord the king wherever he 
shall then be in England. 
Coram ipso rege Ikor;}m ipsow riyjiy I. Before the king 
himself. The old name of the court of king's bench, 
which was originally held before the king in person. 3 
Bl.Comm.41. 
Coram nobis Ikor;}m nowb;}sl. In our presence; before 
us. "Writ of error coram nobis" is procedural tool 
whose purpose is to correct errors of fact only, and its 
function is to bring before the court rendering the 
judgment matters of fact which, if known at time judg
ment was rendered, would have prevented its rendition. 
Com. v. Mangini, 478 Pa. 147, 386 A.2d 482, 490. Its 
function is to bring attention of court to, and obtain 
relief from, errors of fact, such as a valid defense exist
ing in facts of case, but which, without negligence on 
defendant's part, was not made, either through duress or 
fraud or excusable mistake, where facts did not appear 
on face of record, and were such as, if known in season, 
would have prevented rendition of the judgment ques
tioned. People v. Tuthill, 32 Ca1.2d 819, 198 P.2d 505, 
506. The essence of the common law remedy of coram 
nobis is that it is addressed to the very court which 
renders the judgment in which injustice is alleged to 
have been done, in contrast to appeals or review directed 
to another court; the words "coram nobis," meaning 
"our court," as compared to the common-law writ of 
"coram vobis," meaning "your court," clearly point this 
up. The writs of coram nobis and coram vobis have 
been abolished by Fed.R.Civil P. 60(b) and superseded by 
relief as provided by that rule. See also Coram vobis; 
Error coram nobis; Error coram vobis; Writ of error. 
CORNER 
Coram non judice Ikor;}m non juwd;}siy/. In presence 
of a person not a judge. When a suit is brought and 
determined in a court which has no jurisdiction in the 
matter, then it is said to be coram non judice, and the 
judgment is void. 
Coram paribus Ikor;}m prer;}b;}sl. Before the peers or 
freeholders. The attestation of deeds, like all other 
solemn transactions, was originally done only coram 
paribus. 2 Bl.Comm. 307. Co ram paribus de vicineto, 
before the peers or freeholders of the neighborhood. Id. 
315. 
Coram sectatoribus Ikor;}m sekt;}tor;}b;}sl. Before the 
suitors. 
Coram vobis Ikor;}m vowb;}sl. Before you. A writ of 
error directed by a court of review to the court which 
tried the cause, to correct an error in fact. See Coram 
nobis; Writ of error. 
Cord. A measure of wood containing 128 cubic feet, 
otherwise expressed as a pile of wood 8 feet long, 4 feet 
high, and 4 feet wide. 
Core proceeding. For purposes of bankruptcy court 
jurisdiction, the term "core proceedings" encompasses 
those proceedings that arise under the Bankruptcy Code 
(11 V.S.C.A.), including, but not limited to, those pro
ceedings which are specifically defined in 28 V.S.C.A. 
§ 157(b)(2). In re American Energy, Inc., Bkrtcy.N.D., 
50 B.R. 175, 178. Determining whether a proceeding is 
a core or non-core matter requires that a court analyze 
various causes of action raised by the parties and make 
findings that they sufficiently affect the debtor-creditor 
relationship so as to justify the issuance of final judg
ment. In re Hinkley, Bkrtcy.Tex., 58 B.R. 339. 
Co-respondent. A co-defendant. A person summoned 
to answer a bill, petition, or libel, together with another 
respondent. Used for example to designate the person 
charged with adultery with the respondent in a suit for 
divorce for that cause, and joined as a defendant with 
such party. 
Ordinarily term "co-respondent" denotes one joined as 
party defendant in equity suit. Blankenship v. Blanken
ship, 239 Md. 498, 212 A.2d 294, 299. 
Corium forisfacere Ikoriy;}m fOr;}sfeys;}riy I. To forfeit 
one's skin, applied to a person condemned to be 
whipped; anciently the punishment of a servant. Cori
um perdere, the same. Co rium redimere, to compound 
for a whipping. 
Cornage Ikorn;}j/. A species of tenure in England, by 
which the tenant was bound to blow a horn for the sake 
of alarming the country on the approach of an enemy. 
It was a species of grand serjeanty. 
Corner. A combination among the dealers in a specific 
commodity, or outside investors, for the purpose of buy
ing up the greater portion of that commodity which is 
upon the market or may be brought to market, and 
holding the same back from sale, until the demand shall 
so far outrun the limited supply as to advance the price 
abnormally.

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CORNER 
A "corner" is a condition arising when a much greater 
quantity of any given commodity is sold for future 
delivery within a given period than can be purchased in 
the market. The buyers, who are called in the slang of 
the exchanges, the "longs," then insist on delivery, and 
thus succeed in running up the prices to a fictitious 
point, at which the deals are "rung out" between the 
dealers by the payment of differences, or, where the 
buyers insist, by actual delivery. 
Lost corner. One whose location as established by the 
government surveyors cannot be found. The mere fact 
that evidence of the physical location cannot now be 
seen, or that no one who saw the marked corner is 
produced, does not necessarily make the corner a lost 
one. 
Obliterated corner. One where no visible evidence re
mains of the work of the original surveyor in establish
ing it. 
Surveying. An angle made by two boundary lines; the 
common end of two boundary lines, which run at an 
angle with each other. 
Cornering the market. See Corner. 
Cornet. A commissioned officer of cavalry, abolished in 
England in 1871, and not existing in the United States 
army. 
Corn laws. A species of protective tariff formerly in 
existence in England, imposing import-duties on various 
kinds of grain. The corn laws were abolished in 1846. 
Corn Products case. Where corn products manufactur
er, as an integral part of its manufacturing business and 
to protect itself against rises in price of raw corn, bought 
corn futures, accepting delivery in some cases and in 
other cases reselling futures upon spot purchase of corn, 
profits on resale of futures were taxable as ordinary 
income, rather than as capital gains, even though the 
transactions did not constitute true hedging in that 
there was no protection against fall in price. Corn 
Products Refining Co. v. Commission of Internal Reve
nue, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29. 
Corn whisky. An intoxicating whisky or liquor made 
from corn or containing a corn product, otherwise 
known as "moonshine," "white mule," "hootch," "corn 
liquor," "moonshine corn whisky." 
Corody Ikor;}diy/. In old English law, a sum of money 
or allowance of meat, drink, and clothing due to the 
crown from the abbey or other religious house, whereof 
it was founder, towards the sustentation of such one of 
its servants as is thought fit to receive it. It differs from 
a pension, in that it was allowed towards the mainte
nance of any of the king's servants in an abbey; a 
pension being given to one of the king's chaplains, for 
his better maintenance, till he may be provided with a 
benefice. 1 Bl.Comm. 283. 
Corollary. In logic, a collateral or secondary conse
quence, deduction, or inference. 
338 
Corona Ik;}rown;}/. The crown. Placita coronre; pleas 
of the crown; criminal actions or proceedings, in which 
the crown was the prosecutor. 
Corona mala Ik;}rown;} mreb/. In old English law, the 
clergy who abuse their character were so called. 
Coronare Ikor;}neriy/. In old English law, to give the 
tonsure, which was done on the crown, or in the form of 
a crown; to make a man a priest. 
Coronare filium Ikor;}neriy filiy;}m/. In old English 
law, to make one's son a priest. Ho mo cor onatus was 
one who had received the first tonsure, as preparatory to 
superior orders, and the tonsure was in form of a corona, 
or crown of thorns. 
Coronation oath. The oath administered to a sovereign 
at the ceremony of crowning or investing him with the 
insignia of royalty, in acknowledgment of his right to 
govern the kingdom, in which he swears to observe the 
laws, customs, and privileges of the kingdom, and to act 
and do all things conformably thereto. 
Coronator Ikor;}neyt;}r/. A coroner. 
Coronatore eligendo Ikor;}n;}toriy el;}jendow I. In Eng
lish law, the name of a writ issued to the sheriff, 
commanding him to proceed to the election of a coroner. 
Coronatore exonerando Ikor;}n;}toriy ekzon;}rrendow I. 
In English law, the name of a writ for the removal of a 
coroner, for a cause which is to be therein assigned, as 
that he is engaged in other business, or incapacitated by 
years or sickness, or has not a sufficient estate in the 
county, or lives in an inconvenient part of it. 
Coroner Ikor;}n;}r I. Public official, of English origin, 
charged with duty to make inquiry into the causes and 
circumstances of any death which occurs through vio
lence or suddenly and with marks of suspicion; i.e. 
unnatural death. The functions and duties of coroners 
have been diminished having been replaced by medical 
examiners. See Coroner's inquest; Medical examiner. 
Coroner's court. In England, a tribunal of record, 
where a coroner holds his inquiries. In some cases a 
jury must be summoned for an inquest. See Coroners' 
Act, 1980, and Coroners' Juries Act, 1983. 
Coroner's inquest. An inquisition or examination into 
the causes and circumstances of any death happening by 
violence or under suspicious conditions, held by the 
coroner with the assistance of a jury. See also Inquest. 
Corpnership. Exists when a corporation is the sole 
general partner in a limited partnership with numerous 
public investors as limited partners. 
Corporale sacramentum Ikorp;}reyliy srekr;}ment;}m/. 
In old English law, a corporal oath. 
Corporal imbecility. Physical inability to perform com
pletely the act of sexual intercourse; not necessarily 
congenital, and not invariably a permanent and incura
ble impotence. 
Corporalis injuria non recipit restimationem de futu
ro Ikorp;}reyl;}s ;}njuriy;} non res;}p;}t est;}meyshiyown;}m 
diy fyuwtyurow I. A personal injury does not receive

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satisfaction from a future course of proceeding [is not 
left for its satisfaction to a future course of proceeding]. 
Corporal oath. An oath, the external solemnity of 
which consists in laying one's hand upon the Holy Bible 
while the oath is administered to him. More generally, 
a solemn oath. 
Corporal punishment. Physical punishment as distin
guished from pecuniary punishment or a fine; any kind 
of punishment of or inflicted on the body. The term 
may or may not include imprisonment, according to the 
context. The Supreme Court has upheld the use of 
reasonable corporal punishment in schools, Ingraham v. 
Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711; 
though, a number of states, by statute, prohibit paddling 
of students. Whipping of prisoners has been found to be 
a form of "cruel and unusual punishment" as prohibited 
by the 8th Amendment. Jackson v. Bishop, C.A.Ark., 
404 F.2d 571. See also Punishment (Cruel and unusual 
punishment ). 
Corporal touch. Bodily touch; actual physical contact; 
manual apprehension. 
Corporate. Belonging to a corporation; as a corporate 
name. Incorporated; as a corporate body. 
Corporate acquisition. The takeover of one corporation 
by another if both parties retain their legal existence 
after the transaction. An acquisition can be effected via 
a stock purchase or through a tax-free exchange of 
stock. See also Leveraged buyout; Reorganization; Take
over bid; Merger. 
Corporate agent. A natural person or a corporation 
who is authorized to act for a corporation as for example 
in the function of accepting service of process. Broadly, 
term includes all employees and officers of corporation 
who have power to bind the corporation. 
Corporate alter ego, doctrine of. Means that courts, in 
ignoring form and looking to substance, will regard 
stockholders as owners of corporation's property, or as 
the real parties in interest whenever it is necessary to 
do so to prevent fraud which might otherwise be perpe
trated, to redress a wrong which might otherwise go 
without redress, or to do justice which might otherwise 
fail. See Piercing the corporate veil. 
Corporate authorities. The title given in statutes of 
several states to the aggregate body of officers of a 
municipal corporation, or to certain of those officers 
(excluding the others) who are vested with authority in 
regard to the particular matter spoken of in the statute, 
as, taxation, bonded debt, regulation of the sale of li
quors, etc. 
Corporate body. Term is equivalent to "body corpo
rate"; i.e. a corporation. 
Corporate bonds. Debt securities issued by corpora
tions, typically having a maturity of ten years or longer. 
A written promise by a corporation to pay a fixed sum of 
money at some future time named, with stated interest 
payable at some fixed time or intervals, given in return 
CORPORATE NAME 
for money or its equivalent received by the corporation, 
sometimes secured, and sometimes not. 
Corporate charter. Document issued by state agency or 
authority (commonly Secretary of State) granting corpo
ration legal existence and right to function (i.e., conduct 
business) as a corporation; or, may mean document filed 
with Secretary of State on incorporation of a business; 
e.g., articles of incorporation. See also Charter; Corpo
rate franchise. 
Corporate citizenship. Corporate status in the state of 
incorporation, though a foreign corporation is not a 
citizen for purposes of the Privileges and Immunities 
Clause (U.S.Const., Art. IV, § 2). Bank of Augusta v. 
Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274. 
Corporate crime. Any criminal offense committed by 
and hence chargeable to a corporation because of activi
ties of its officers or employees (e.g., price fixing, toxic 
waste dumping). Often referred to as "white-collar" 
crime. 
Corporate domicile. The domicile of a corporation is 
the state of its incorporation. 
Corporate entity. The distinct status of a corporation 
which sets its existence apart from the status of its 
shareholders; its capacity to have a name of its own, to 
sue and be sued in its own name as well as the right to 
buy, sell, lease and mortgage its property in its own 
name. 
Corporate excess. Term used in connection with taxa
tion of a corporation engaged in interstate commerce by 
a state and meaning the proportion of fair cash value of 
all the shares constituting the capital stock on a given 
date as the value of the assets, both real and personal, 
employed within the state bears to the total assets of the 
corporation on that date. Alpha Portland Cement Co. v. 
Mass., 268 U.S. 203, 208, 45 S.Ct. 477, 69 L.Ed. 916. 
Corporate franchise. The right to exist and do business 
as a corporation. The right or privilege granted by the 
state or government to the persons forming an aggre
gate corporation, and their successors, to exist and do 
business as a corporation and to exercise the rights and 
powers incidental to that form of organization or neces
sarily implied in the grant. See also Corporate charter. 
Corporate liability. See Piercing the corporate veil. 
Corporate liquidation. See Liquidation. 
Corporate mortgage trust. Device for financing corpo
rate activities which requires an indenture and an inde
pendent trustee for protection of holders of bonds and 
debentures. The trust holds security consisting of prop
erty in event of default. 
Corporate name. When a corporation is formed, state 
statutes require that such be given a name and such 
name is kept on record with the proper state authority 
(e.g. Secretary of State's office). Only by and under such 
name may the corporation sue or be sued and do all 
legal acts.

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CORPORATE OFFICERS 
Corporate officers. Those persons who fill the offices 
which are provided for in the corporate charter such as 
president, treasurer, etc., though in a broader sense the 
term includes vice presidents, general manager and oth
er officials of the corporation. 
Corporate opportunity doctrine. This doctrine pre
cludes corporate fiduciaries from diverting to themselves 
business opportunities in which the corporation has an 
expectancy, property interest or right, or which in fair
ness should otherwise belong to corporation. Klinicki v. 
Lundgren, 298 Or. 662, 695 P.2d 906, 910. 
Corporate purpose. In reference to municipal corpora
tions, and especially to their powers of taxation, a "cor
porate purpose" is one which shall promote the general 
prosperity and the welfare of the municipality; or a 
purpose necessary or proper to carry into effect the 
object of the creation of the corporate body or one which 
is germane to the general scope of the objects for which 
the corporation was created or has a legitimate connec
tion with those objects and a manifest relation thereto. 
State statutes commonly require that the articles of 
incorporation of business corporations state the purpose 
of the corporation. 
Corporate raider. See Raider. 
Corporate reorganization. See Reorganization. 
Corporate stock. Term embraces all equity securities 
issued by a corporation, but not bonds and debentures 
because these represent debt rather than stock (equity). 
See Stock. 
Corporate trustees. Those corporations which are em
powered by their charter to act as trustee, such as banks 
and trust companies. 
Corporation. An artificial person or legal entity created 
by or under the authority of the laws of a state. An 
association of persons created by statute as a legal 
entity. The law treats the corporation itself as a person 
which can sue and be sued. The corporation is distinct 
from the individuals who comprise it (shareholders). 
The corporation survives the death of its investors, as 
the shares can usually be transferred. Such entity 
subsists as a body politic under a special denomination, 
which is regarded in law as having a personality and 
existence distinct from that of its several members, and 
which is, by the same authority, vested with the capaci
ty of continuous succession, irrespective of changes in its 
membership, either in perpetuity or for a limited term 
of years, and of acting as a unit or single individual in 
matters relating to the common purpose of the associa
tion, within the scope of the powers and authorities 
conferred upon such bodies by law. Dartmouth College 
v. Woodward, 17 U.S. (4 Wheat.) 518, 636, 657, 4 L.Ed. 
629; U. S. v. Trinidad Coal Co., 137 U.S. 160, 11 S.Ct. 57, 
34 L.Ed. 640. 
See also Affiliate company; Brother-sister corporation; 
Charitable corporation; Charitable organizations; Clearing 
corporation; Collapsible corporation; Cooperative corpora
tion; Corporation (S Corporation ); Domestic corporation; 
Dormant corporation; Foreign corporation; Municipal cor-
340 
poration; Non- profit corporation; Non-stock corporation; 
Parent company or corporation; Person; Public corpora
tions; Registered corporation; Thin corporation. 
Classification 
According to the accepted definitions and rules, corpo
rations are classified as follows: 
Public and private. A public corporation is one created 
by the state for political purposes and to act as an 
agency in the administration of civil government, gener
ally within a particular territory or subdivision of the 
state, and usually invested, for that purpose, with subor
dinate and local powers of legislation; such as a county, 
city, town, or school district. These are also sometimes 
called "political corporations." See Mu nicipal corpora
tion. 
Private corporations are those founded by and com
posed of private individuals, for private purposes, as 
distinguished from governmental purposes, and having 
no political or governmental franchises or duties. 
The true distinction between public and private corpo
rations is that the former are organized for governmen
tal purposes, the latter not. The term "public" has 
sometimes been applied to corporations of which the 
government owned the entire stock, as in the case of a 
state bank. But bearing in mind that "public" is here 
equivalent to "political," it will be apparent that this is 
a misnomer. Again the fact that the business or opera
tions of a corporation may directly and very extensively 
affect the general public (as in the case of a railroad 
company or a bank or an insurance company) is no 
reason for calling it a public corporation. If organized 
by private persons for their own advantage,--or even if 
organized for the benefit of the public generally, as in 
the case of a free public hospital or other charitable 
institution,-it is none the less a private corporation if it 
does not possess governmental powers or functions. The 
uses may in a sense be called "public," but the corpora
tion is "privat e," as much so as if the franchises were 
vested in a single person. Dartmouth College v. Wood
ward, 17 U.S. (4 Wheat .) 562, 4 L.Ed. 629. It is to be 
observed, however, that those corporations which serve 
the public or contribute to the comfort and convenience 
of the general public, though owned and managed by 
private interests, are now denominated "public-service 
corporations." See infra. Another distinction between 
public and private corporations is that the former are 
not voluntary associations (as the latter are) and that 
there is no contractual relation between the government 
and a public corporation or between the individuals who 
compose it. 
While the above are strict distinctions between "pub
lic" and "private" corporations, in common usage the 
term "public" corporation is frequently used to distin
quish a business corporation whose shares are traded to 
and among the general public as opposed to a "private" 
(or "close" corporation) whose shares are not so traded. 
Ecclesiastical and lay. In the English law, all corpora
tions private are divided into ecclesiastical and lay, the

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341 
former being such corporations as are composed exclu
sively of ecclesiastics organized for spiritual purposes, or 
for administering property held for religious uses, such 
as bishops and certain other dignitaries of the church 
and (formerly) abbeys and monasteries. 1 Bl.Comm. 
470. Lay corporations are those composed of laymen, 
and existing for secular or business purposes. This 
distinction is not recognized in American law. Corpora
tions formed for the purpose of maintaining or propagat
ing religion or of supporting public religious services, 
according to the rights of particular denominations, and 
incidentally owning and administering real and person
al property for religious uses, are called "religious corpo
rations," as distinguished from business corporations; 
but they are "lay" corporations, and not "ecclesiastical" 
in the sense of the English law. 
Aggregate and sole. A corporation sole is one consisting 
of one person only, and his successors in some particular 
station, who are incorporated by law in order to give 
them some legal capacities and advantages, particularly 
that of perpetuity, which in their natural persons they 
could not have had. In this sense, the sovereign in 
England is a sole corporation, so is a bishop, so are some 
deans distinct from their several chapters, and so is 
every parson and vicar. 
A corporation aggregate is one composed of a number 
of individuals vested with corporate powers; and a "cor
poration," as the word is used in general popular and 
legal speech, and as defined at the head of this title, 
means a "corporation aggregate." 
Domes tic and foreign. With reference to the laws and 
the courts of any given state, a "domestic" corporation is 
one created by, or organized under, the laws of that 
state; a "foreign" corporation is one created by or under 
the laws of another state, government, or country. See 
also Domestic corporation. 
Subsidiary and parent. Subsidiary corporation is one in 
which another corporation (called parent corporation) 
owns at least a majority of the shares, and thus has 
control. 
Other Compound and Descriptive Terms 
Acqu ired corpora tion. The corporation which disap
pears as a result of a merger or acquisition. 
Acquiring corpora tion. The offeror in a merger or ac
quisition. 
Aggressor corporation. A corporation that attempts to 
obtain control of a publicly held corporation, either by a 
direct cash tender or public exchange offer to sharehold
ers, or by way of merger, which requires the agreement 
or assent of the target's management. See Takeover bid. 
Business corporation. One formed for the purpose of 
transacting business in the widest sense of that term, 
including not only trade and commerce, but manufactur
ing, mining, banking, insurance, transportation, and 
practically every form of commercial or industrial activ
ity where the purpose of the organization is pecuniary 
profit; contrasted with religious, charitable, educational, 
CORPORATION 
and other like organizations, which are sometimes 
grouped in the statutory law of a state under the gener
al designation of "corporations not for profit." 
Brother-sister corporation. See that title. 
Close corporation. A corporation whose shares, or at 
least voting shares, are held by a single shareholder or 
closely-knit group of shareholders. Generally, there are 
no public investors and its shareholders are active in the 
conduct of the business. A close corporation is one 
which fills its own vacancies or in which power of voting 
is held through manipulation under fixed and virtually 
perpetual proxies. Brooks v. Willcuts, C.C.A.Minn., 78 
F.2d 270, 273. A corporation, the stock ownership of 
which is not widely dispersed. Instead, a few sharehold
ers are in control of corporate policy and are in a 
position to benefit personally from such policy. 
Closely held corporation. See Close corporation, above. 
Co llapsible corpora tion. A corporation formed for one 
specific venture such as a motion picture, or construc
tion of a building, and then collapsed, allowing tax 
advantages to the shareholders. I.R.C. § 341. 
C corpora tion. A regular corporation governed by Sub
chapter C of the Internal Revenue Code. Distinguished 
from S corporations, which fall under SUbchapter S of 
the Code. See also S corporation, below. 
Co ntrolled corporation. A corporation where the majori
ty of stock outstanding is held by one individual or one 
firm. Where there is complete domination and control 
of a c.orporation so that it has no independent identity, a 
court may disregard the corporate form and extend 
liability for corporate obligations beyond the confines of 
a corporation's separate entity whenever it is necessary 
to prevent fraud or achieve equity. Glenn v. Wagner, 67 
N.C.App. 563, 313 S.E.2d 832, 839. 
Corporation by estop pel. A corporation by estoppel 
comes about when parties, by their agreements or con
duct, estop themselves from denying the existence of the 
corporation. Harris v. Stephens Wholesale Bldg. Supply 
Co., Inc., 54 Ala.App. 405, 309 So.2d 115, 117. It is a 
doctrine which prevents a third person from holding an 
officer, director, or shareholder of a nonexistent corpora
tion personally liable on an obligation entered into in 
the name of the nonexistent corporation. The theory is 
that the third person relied on the existence as a corpo
ration and is now "estopped" from denying that the 
corporation existed. 
Corpora tion de facto. One existing under color of law 
and in pursuance of an effort made in good faith to 
organize a corporation under the statute; an association 
of men claiming to be a legally incorporated company, 
and exercising the powers and functions of a corpora
tion, but without actual lawful authority to do so. Its 
elements are a law or charter authorizing such a corpo
ration, an attempt in good faith to comply with law 
authorizing its incorporation, and unintentional omis
sion of essential requirements of the law or charter, and 
exercise in good faith of corporate functions under the

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CORPORATION 
law or charter. A corporation which has been defective
ly formed but which is not subject to collateral attack. 
Corporation de jure. That which exists by reason of full 
compliance by incorporators with requirements of an 
existing law permitting organization of such corpora
tion. 
Corporation sole. Unusual type of corporation consist
ing of only one person whose successor becomes the 
corporation on his death or resignation; limited in the 
main today to bishops and heads of dioceses. See also 
Aggregate and sole, above. 
Eleemosynary corpor ation. Corporation with charitable 
functions and purposes. 
Jo int venture corporation. A corporation which has 
joined with other individuals or corporations within the 
corporate framework in some specific undertaking com
monly found in oil, chemical, electronic and atomic 
fields. 
Migratory cor po ration. A corporation, organized under 
laws of another state than that of incorporators' resi
dence for purpose of doing all or greater part of their 
business in state of their residence or in other state than 
that of incorporation. Toklan Royalty Corporation v. 
Tiffany, 193 Okl. 120, 141 P.2d 571, 573. 
Moneyed corporations are, properly speaking, those deal
ing in money or in the business of receiving deposits, 
loaning money, and exchange; but in a wider sense the 
term is applied to all business corporations having a 
money capital and employing it in the conduct of their 
business. 
Municipal cor porations. See that title. 
No n-stock corporation. Type of corporation where own
ership is not recognized by stock; e.g. municipal corpora
tion. 
No t-for-profit corporation. A corporation formed for 
some charitable or benevolent purpose and not for profit 
making and generally organized under special statutes 
for this purpose. Such corporations are afforded special 
tax treatment. See also Non- profit corporation. 
Professional corporation. In most states such may be 
organized by those rendering personal services to public 
of a type which requires a license or other legal authori
zation and which prior to such statutory authorization 
could not be performed by a corporation. Includes, but 
is not limited to, public accountants, certified public 
accountants, chiropractors, osteopaths, physicians, sur
geons, dentists, podiatrists, chiropodists, architects, vet
erinarians, optometrists, and attorneys at law. Tax 
benefits are one of several reasons for professional incor
poration. Incorporation does not alter professional re
sponsibility or privilege nor does it insulate principal 
from malpractice liability. 
Public-service corporations. Those whose operations 
serve the needs of the general public or conduce to the 
comfort and convenience of an entire community, such 
as public transportation, gas, water, and electric light 
companies. The business of such companies is said to be 
342 
"affected with a public interest," and for that reason 
they are subject to legislative regulation and control to a 
greater extent than corporations not of this character. 
See also Quasi public corporation, below. 
Quasi corporation. A term applied to those bodies, or 
municipal societies, which, though not vested with the 
general powers of corporations, are yet recognized, by 
statutes or immemorial usage, as persons, or aggregate 
corporations, with precise duties, which may be en
forced, and privileges, which may be maintained, by 
suits at law. "Quasi corporation" is a phrase used to 
designate bodies which possess a limited number of 
corporate powers, and which are low down in the scale 
or grade of corporate existence, and is generally applied 
to a body which exercises certain functions of a corpo
rate character, but which has not been created a corpo
ration by any statute, general or special. There is a 
well-defined and marked distinction between municipal 
corporations proper and political or quasi corporations. 
Cities, towns, and villages are municipal corporations 
proper, while counties, townships, school districts, road 
districts, and the like are quasi corporations. See Quasi 
public corporation, below. 
Quasi public corpora tion. This term is sometimes ap
plied to corporations which are not strictly public, in the 
sense of being organized for governmental purposes, but 
whose operations contribute to the comfort, convenience, 
or welfare of the general public, such as telegraph and 
telephone companies, gas, water, and electric light com
panies, and irrigation companies. More commonly and 
more correctly styled "public-service corporations." 
There is a large class of private corporations which on 
account of special franchises conferred on them owe a 
duty to the public which they may be compelled to 
perform. This class of corporations is known as public 
service corporations, and in legal phraseology as "quasi 
public corporati ons," or corporations affected with a 
public interest. A "quasi public corporation" may be 
said to be a private corporation which has given to it 
certain powers of a public nature, such, for instance, as 
the power of eminent domain, in order to enable it to 
discharge its duties for the public benefit, in which 
respect it differs from an ordinary private corporation, 
the powers of which are given and exercised for the 
exclusive advantage of its stockholders. 
The term is also applied to corporations of that class 
sometimes called "quasi municipal corporations," such 
as school districts, irrigation districts, township, etc. 
S corporation. A small business corporation with a 
statutorily limited number of shareholders, which, un
der certain conditions, has elected to have its taxable 
income taxed to its shareholders at regular income tax 
rates. I.R.C. § 1361 et seq. Its major significance is the 
fact that S corporation status usually avoids the corpo
rate income tax, and corporate losses can be claimed by 
the shareholders. This election is for federal tax pur
poses only; in terms of legal characteristics under state 
law, the "s" status corporation is no different than any 
other regular corporation.

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343 
Shell corpo ration. A corporate frame, containing few, if 
any, assets, kept alive by required filings, generally for 
future use. 
Spiritual corpora tions. Corporations, the members of 
which are entirely spiritual persons, and incorporated as 
such, for the furtherance of religion and perpetuating 
the rights of the church. 
Subchapter C corporation. A regular corporation sub
ject to the provisions of Subchapter C (§§ 301-386) of the 
Internal Revenue Code. Distinguished from an S corpo
ration, which is governed by SUbchapter S of the Code. 
Target corporation. Corporation attempted to be taken 
over in a tender offer or other type of takeover bid. A 
corporation viewed as having a good potential for take
over by another corporation or individual. 
Trading cor porations. A commercial corporation en
gaged in buying and selling. The word "trading," is 
much narrower in scope than "business," as applied to 
corporations, and though a trading corporation is a 
business corporation, there are many business corpora
tions which are not trading companies. Dartmouth 
College v. Woodward, 17 U.S. (4 Wheat.) 669, 4 L.Ed. 
629. 
Tramp corporations. Companies chartered in one state 
without any intention of doing business therein, but 
which carry on their business and operations wholly in 
other states. 
Corporation Act. In English law, the statute 13 Car. II, 
St. 2, c. 1; by which it was provided that no person 
should thereafter be elected to office in any corporate 
town that should not, within one year previously, have 
taken the sacrament of the Lord's Supper, according to 
the rites of the Church of England; and every person so 
elected was also required to take the oaths of allegiance 
and supremacy. 4 Bl.Comm. 58. This statute is now 
repealed. 
Corporation courts. Formerly, certain courts in Virgi
nia described as follows: "For each city of the state, 
there shall be a court called a 'corporation court,' to be 
held by a judge, with like qualifications and elected in 
the same manner as judges of the county court." 
Corporator. A member of a corporation aggregate. 
Seaborn v. Wingfield, 56 Nev. 260, 48 P.2d 881, 883. See 
Incorporator. 
Corporeal Ik;)rporiy;)lI. A term descriptive of such 
things as have an objective, material existence; percep
tible by the senses of sight and touch; possessing a real 
body. Opposed to incorporeal and spiritual. There is a 
distinction between "corporeal" and "corporal ." The 
former term means "possessing a body," that is, tangi
ble, physical, material; the latter means "relating to or 
affecting a body," that is, bodily, external. Corporeal 
denotes the nature or physical existence of a body; 
corporal denotes its exterior or the co-ordination of it 
with some other body. Hence we speak of "corporeal 
hereditaments," but of "corporal punishment," "corpo
ral touch," "corporal oath," etc. 
CORPUS 
Corporeal hereditaments Ik;)rpOriy;)1 h;)red;)t;)m;)nts/. 
See Hereditaments. 
Corporeal property. Such as affects the senses, and 
may be seen and handled, as opposed to incorporeal 
property, which cannot be seen or handled, and exists 
only in contemplation. Thus a house is corporeal, but 
the annual rent payable for its occupation is incorpore
al. Corporeal property is, if movable, capable of manual 
transfer: if immovable, possession of it may be delivered 
up. But incorporeal property cannot be so transferred, 
but some other means must be adopted for its transfer, 
of which the most usual is an instrument in writing. 
In Roman law, the distinction between things corpore
al and incorporeal rested on the sense of touch; tangible 
objects only were considered corporeal. In modern law, 
all things which may be perceived by any of the bodily 
senses are termed corporeal, although a common defini
tion of the word includes merely that which can be 
touched and seen. 
Corpore et animo Ikorp;)riy et ren;)mow I. Lat. By the 
body and by the mind; by the physical act and by the 
mental intent. 
Corps diplomatique Ikor dipl;)matiyk/. In internation
al law, ambassadors and diplomatic persons at any court 
or capital. 
Corpse Ikorps/. The dead body of a human being. 
Corpus Ikorp;)s/. Lat. Body; an aggregate or mass (of 
men, laws, or articles); physical substance, as distin
guished from intellectual conception; the principal sum 
or capital, as distinguished from interest or income. 
The main body or principal of a trust. 
A substantial or positive fact, as distinguished from 
what is equivocal and ambiguous. The corpus delicti 
(body of an offense) is the fact of its having been actually 
committed. 
A corporeal act of any kind (as distinguished from 
animus or mere intention), on the part of him who 
wishes to acquire a thing, whereby he obtains the physi
cal ability to exercise his power over it whenever he 
pleases. The word occurs frequently in this sense in the 
civil law. 
As proof, it consists of showing that there exists the 
object of the crime (dead body in homicide case), and 
that such resulted from criminal act of some person. In 
some jurisdictions, it cannot be proved by confession of 
defendant in the first instance but only after extrinsic 
evidence (of the elements) has been offered. Downey v. 
People, 121 Colo. 307, 215 P.2d 892. In other states, 
confessional evidence is admissible in the first instance. 
See Corpus delicti, below. 
Corpus comitatus Ikorp;)s kom;)t€�yt;)s/. The body of a 
county. The whole county, as distinguished from a part 
of it, or any particular place in it. 
Corpus corporatum Ikorp;)s korp;)reyt;)m/. A corpora
tion; a corporate body, other than municipal. 
Corpus cum causa Ikorp;)s k;}m koz;) I . (The body with 
the cause.) An English writ which issued out of chan-

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CORPUS 
cery, to remove both the body and the record, touching 
the cause of any man lying in execution upon a judg
ment for debt, into the king's bench, there to remain 
until he satisfied the judgment. 
Corpus delicti Ikorp;}s d;}liktay I. The body of a crime. 
The body (material substance) upon which a crime has 
been committed, e.g., the corpse of a murdered man, the 
charred remains of a house burned down. In a deriva
tive sense, the objective proof or substantial fact that a 
crime has been committed. The "corpus delicti" of a 
crime is the body, foundation or substance of the crime, 
which ordinarily includes two elements: the act and the 
criminal agency of the act. State v. Edwards, 49 Ohio 
St.2d 31, 358 N.E.2d 1051, 1055. 
Corpus pro corpore Ikorp;}s prow korp;}riy I. In old 
records, body for body. A phrase expressing the liability 
of manucaptors. 
Corpus humanum non recipit restimationem Ikorp;}s 
hy;}meyn;}m non res;}p;}t est;}meyshiyown;}m/. The hu
man body does not admit of valuation. 
Corpus juris Ikorp;}s jur;}s/. A body of law. A term 
used to signify a book comprehending several collections 
of law. There are two principal collections to which this 
name is given; the Corpus Juris Civilis, and the Corpus 
Juris Canonici. Also name of an encyclopredic-state
ment of the principles of American law; e.g. Corpus 
Juris Secundum. 
Corpus juris canonici Ikorp;}s jur;}s k;}non;}say I. The 
body of the canon law. A compilation of the canon law, 
comprising the decrees and canons of the Roman 
Church, constituting the body of ecclesiastical law of 
that church. 
Corpus juris civilis Ikorp;}s jur;}s siv;}l;}s/. The body of 
the civil law. The system of Roman jurisprudence com
piled and codified under the direction of the emperor 
Justinian, in A.D. 528-534. This collection comprises 
the Institutes, Digest (or Pandects), Code, and Novels. 
The name is said to have been first applied to this 
collection early in the seventeenth century. 
Correct attest. These words, used before the signatures 
of bank directors to reports made to the commissioner of 
banking, mean not alone to bear witness, but to affirm 
to be true or genuine, and such words are appropriately 
used for the affirmation of persons in their official 
capacity to attest the truth of a writing. 
Corrected policy. Insurance policy issued after investi
gation of risk to correct misstatements in policy first 
issued. 
Correction. Discipline, treatment and rehabilitation of 
offenders through confinement, parole, probation, coun
seling, etc. See also Correctional system. 
Correctional institutions. A generic term describing 
prisons, jails, reformatories and other places of correc
tion and detention. 
Correctional system. Network of governmental agen
cies concerned with prisons, jails, houses of correction 
344 
and reformatories; may also refer to pardon and parole 
systems. 
Correction, house of. A prison for the reformation of 
petty or juvenile offenders. 
Corrector of the staple. In old English law, a clerk 
belonging to the staple, to write and record the bargains 
of merchants there made. 
Corregidor Ikoreyhidor/k;}reg;}dor/. In Spanish law, a 
magistrate who took cognizance of various misdemean
ors, and of civil matters. 
Correi Ikowriyay I. Lat. In the civil law, co-stipulators; 
joint stipulators. 
Correi credendi Ikowriyay kr;}denday I. In the civil and 
Scotch law, joint creditors; creditors in solido. 
Correlative Ik;}rel;}div I. Having a mutual or reciprocal 
relation, in such sense that the existence of one neces
sarily implies the existence of the other. Father and son 
are correlative terms, as are claim and duty. 
Correlative rights. Refers to doctrine which is applied 
to owners of land and their rights to use of their land 
with respect to rights of adjoining or lower riparian 
landowners in water or oil. Alameda County Water 
District v. Niles Sand & Gravel Co. Inc., 37 Cal.App.3d 
924, 112 Cal.Rptr. 846. 
Correspondence. Interchange of written communica
tions. The letters written by a person and the answers 
written by the one to whom they are addressed. The 
agreement of things with one another. 
Correspondence audit. An audit conducted by the In
ternal Revenue Service through the use of the mail. 
Typically, the I.R.S. writes to the taxpayer requesting 
the verification of a particular deduction or exemption. 
The completion of a special form or the remittance of 
copies of records or other support is all that is requested 
of the taxpayer. See also Audit. 
Correspondent. A securities firm, bank or other finan
cial organization which regularly performs services for 
another in a place or market to which the other does not 
have direct access. Securities firms may have corre
spondents in foreign countries or on exchanges of which 
they are not members. Bank which serves as agent for 
another bank in performing services; e.g. carrying de
posit balance for bank in another city. 
Correspondent bank. See Correspondent. 
Corroborate Ik;}rob;}reyt/. To strengthen; to add 
weight or credibility to a thing by additional and con
firming facts or evidence. The testimony of a witness is 
said to be corroborated when it is shown to correspond 
with the representation of some other witnesses, or to 
comport with some facts otherwise known or estab
lished. See Corroborating evidence. 
Corroborating evidence Ik;}rob;}reytiIJ ev;}d;}ns/. Evi
dence supplementary to that already given and tending 
to strengthen or confirm it. Additional evidence of a 
different character to the same point. Edwards v. Ed
wards, Tenn.App., 501 S.W.2d 283, 289. In some juris-

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345 
dictions, corroborating evidence of an accomplice to the 
crime is given much weight. People v. Baker, 16 Il1.2d 
364, 158 N.E.2d 1. 
Corrupt. Spoiled; tainted; vitiated; depraved; debased; 
morally degenerate. As used as a verb, to change ones 
morals and principles from good to bad. 
Corruption. An act done with an intent to give some 
advantage inconsistent with official duty and the rights 
of others. The act of an official or fiduciary person who 
unlawfully and wrongfully uses his station or character 
to procure some benefit for himself or for another per
son, contrary to duty and the rights of others. See Bribe; 
Extortion. 
Corruption of blood. In English law, the consequence 
of attainder, being that the attainted person could nei
ther inherit lands or other hereditaments from his an
cestor, nor retain those he already had, nor transmit 
them by descent to any heir, because his blood was 
considered in law to be corrupted. Avery v. Everett, 110 
N.Y. 317, 18 N.E. 148. This was abolished by St. 3 & 4, 
Wm. IV, c. 106, and 33 & 34 Vict., c. 23, and is unknown 
in America. Const. U.S., Art. III, § 3. 
Corruptly. When used in a statute, this term, generally 
imports a wrongful design to acquire some pecuniary or 
other advantage. 
Corrupt motive doctrine. Doctrine invoked in assess
ing crimes like bribery to determine motive of gift or 
payment. 
Corrupt practices acts. Federal and state statutes reg
ulating campaign contributions and expenditures, in
cluding disclosure requirements. 2 U .S.C.A. § 231 et 
seq. 
Corselet Ik6rsl;}t/. Ancient armor which covered the 
body. 
Corse-present Ik6rs prez;}nt/. In old English law, a 
mortuary, thus termed because, when a mortuary be
came due on the death of a man, the best or second-best 
beast was, according to custom, offered or presented to 
the priest, and carried with the corpse. In Wales a 
corse-present was due upon the death of a clergyman to 
the bishop of the diocese, till abolished by 12 Anne St. 2, 
c. 6. 2 Bl.Comm. 426. 
Corsned Ik6rsned/. In Saxon law, the morsel of exe 
cration. A species of ordeal in use among the Saxons, 
performed by eating a piece of bread over which the 
priest had pronounced a certain imprecation. If the 
accused ate it freely, he was pronounced innocent; but, 
if it stuck in his throat, it was considered as a proof of 
his guilt. 4 Bl.Comm. 345. 
Cortis I k6rt;}s I . A court or yard before a house. 
Cortularium I korty;}leriy;}m I , or cortarium Ikorter
iy;}m/. In old records, a yard adjoining a country farm. 
Corvee Ikorvey I. In French law, gratuitous labor exact
ed from the villages or communities, especially for re
pairing roads, constructing bridges. 
COST 
Corvee seigneuriale Ikorvey seyny�riyal/. Services due 
the lord of the manor. 
Cosa juzgada Ik6wsa huwsgaoa/. In Spanish law, a 
cause or matter adjudged (res judicata). 
Cosas comunes Ik6wsas komuwne(y)sl. In Spanish law, 
a term corresponding to the res communes of the Roman 
law, and descriptive of such things as are open to the 
equal and common enjoyment of all persons and not to 
be reduced to private ownership, such as the air, the sea, 
and the water of running streams. 
Cosbering Ik6zb;}riU/. See Coshering. 
Cosduna Ik6zduwn;}/. In feudal law, a custom or trib
ute. 
Cosen, cozen Ik�z;}n/. In old English law, to cheat. 
Cosenage Ik�z(;})naj/. (Also spelled "Cosinage," "Cousi
nage.") In old English law, a writ that lay for the heir 
where the tresail, i.e., the father of the besail, or great
grandfather, was seised of lands in fee at his death, and 
a stranger entered upon the land and abated. 3 Bl. 
Comm. 186. Kindred; cousinship; relationship; affini
ty. 3 Bl.Comm. 186. 
Cosening Ik�z(;})niu/. In old English law, an offense, 
mentioned in the old books, where anything was done 
deceitfully, whether belonging to contracts or not, which 
could not be properly termed by any special name. The 
same as the stellionatus of the civil law. 4 Bl.Comm. 
158. 
Coshering Ik6sh;}riU/. In old English law, a feudal 
prerogative or custom for lords to lie and feast them
selves at their tenants' houses. 
Cosigner. Person who signs a document or instrument 
along with another, often assuming obligations and pro
viding credit support to be shared with other obligorCs). 
Cosmopathic Ikozm;}preO;}k/. Open to the access of su
pernormal knowledge or emotion supposedly from a 
preternatural world; applied to methods of healing. 
Cost. Expense; price. The sum or equivalent expended, 
paid or charged for something. See also Actual cost; 
Costs; Net cost; Rate. 
Co st accountin g. The area of accounting which focuses 
on the method and system used to compile and analyze 
the costs of selling and manufacturing products. It 
includes the method for classifying, summarizing, re
cording, reporting, and allocating the actual costs in
curred and comparing them with the standard costs 
established. Areas of cost accounting include: job order, 
process, direct, and standard costing. 
Cos t basis. In accounting, the cost of an asset is the 
amount paid for the asset in cash or property. The 
value placed on an asset in a financial statement in 
terms of its cost; used in determining capital gains or 
losses. 
Cos t bond. See Costs, infra. 
Cos t contract. See Cost-plus contract, infra.

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COST 
Cos t depletion. In accounting and taxation, depletion 
computed in oil production without reference to dis
covery or percentage depletion. Magale v. U. S., 118 
Ct.Cl. 183, 93 F.Supp. 1004. 
Co st of com pletion. Measure of damages in breach of 
contract claim or action. 
Impu ted cost. A value expressing cost which is derived 
from or based on factors other than actual cost records; 
estimated costs. 
Marginal cost. The increase or decrease in total cost 
that materializes as a result of a variation in output. 
Replacement cost. An appraisal method for determining 
value by substituting a like property. See also Replace
ment cost. 
Unit cost. Cost of a single unit of product or service. 
Total cost divided by number of units. 
Variable costs. Costs that change in total with changes 
in rate of production. 
Cost and freight (C.A.F.). Quoted sales price includes 
cost of goods and freight but not insurance or other 
special charges. 
Co-stipulator. A joint promisor. 
Cost of capital. The annual percent that a utility must 
receive to maintain its credit, to pay a return to the 
owners of the enterprise and to insure the attraction of 
capital in amounts adequate to meet future needs. It 
involves a calculation of the interest a utility must pay 
on its borrowed capital (debt) and the cost of attracting 
and paying investors for its common or preferred stock 
(equity). Millinocket Water Co. v. Maine Public Utili
ties Com'n, Me., 515 A.2d 749, 751. 
Cost of living clause. A provision, commonly in labor 
agreements, and also in certain pension, retirement, and 
disability benefit programs, giving an automatic wage or 
benefit increase tied in some way to cost-of-living rises 
in the economy. Cost of living is usually measured by 
the Consumer Price Index (CPI) (q.v.). 
May also exist in certain long term leases where, for 
example, rent increases are tied to Consumer Price 
Index. 
Cost-plus contract. One which fixes the amount to be 
paid the contractor on a basis, generally, of the cost of 
the material and labor, plus an agreed percentage there
of as profits. Such contracts are used when costs of 
production or construction are unknown or difficult to 
ascertain in advance. 
Costs. A pecuniary allowance, made to the successful 
party (and recoverable from the losing party), for his 
expenses in prosecuting or defending an action or a 
distinct proceeding within an action. In federal courts, 
costs are allowed as a matter of course to the prevailing 
party unless the court otherwise directs; also, specified 
fees and certain court expenses may be taxed as costs. 
Fed.R.Civil P. 54(d); Fed.R.App.P. 39; 28 U.S.C.A. 
§ 1920. Generally, "costs" do not include attorney fees 
unless such fees are by a statute denominated costs or 
346 
are by statute allowed to be recovered as costs in the 
case. 
Fees and charges required by law to be paid to the 
courts or some of their officers, the amount of which is 
fixed by statute or court rule; e.g. filing and service fees. 
See also Closing costs; Fee; Security for costs; Service 
charge. 
Bill of costs. A certified, itemized statement of the 
amount of costs in an action or suit. 
Co st bond, or bond for costs. A bond given by a party to 
an action to secure the eventual payment of such costs 
as may be awarded against him. A bond which may be 
required of an appealing party in a civil case; e.g. 
Fed.R.App.P. 7. Purpose of bond is to cover appellee's 
costs in event of affirmance of judgment. 
Costs de incremento. Increased costs, costs of increase. 
Costs adjudged by the court in addition to those assessed 
by the jury. 
Cos ts of collection. Strictly, expenses involved in en
deavoring to make collection, as of a promissory note; 
but as used in or with reference to such notes, the 
phrase is synonymous with attorney's fees. There is 
commonly a provision to this effect in such notes. It 
does not refer to costs of suit, which are recoverable by 
law. 
Co sts of the day. Costs which are incurred in preparing 
for the trial of a cause on a specified day, consisting of 
witnesses' fees, and other fees of attendance. 
Co sts to abide event. When an order is made by an 
appellate court reversing a judgment, with "costs to 
abide the event," the costs intended by the order include 
those of the appeal, so that, if the appellee is finally 
successful, he is entitled to tax the costs of the appeal. 
Final costs. Such costs as are to be paid at the end of 
the suit. Costs, the liability for which depends upon the 
final result of the litigation. 
Indirect costs. Costs not readily identifiable with pro
duction of specific goods or services, but rather applica
ble to production activity in general; e.g., overhead 
allocations for general and administrative activities. 
Interloc utory costs. Costs accruing upon proceedings in 
the intermediate stages of a cause, as distinguished from 
final costs; such as the costs of motions. 
Security for costs. A security which a defendant in an 
action may require of a plaintiff who does not reside 
within the jurisdiction of the court, for the payment of 
such costs as may be awarded to the defendant. See also 
Cos t bond, above. 
Statutory costs. Amounts awarded for various phases of 
litigation that are fixed by statute. Word "costs" gener
ally refers to statutory fees to which officers, witnesses, 
jurors and others are entitled for their services in an 
action and which statutes authorize to be taxed and 
included in the judgment. Terry v. Burger, 6 Ohio 
App.2d 53, 216 N.E.2d 383. See e.g. 28 U.S.C.A. § 1920.

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347 COUNSEL
Taxation of litigation costs. See Taxation; also Costs, Cotuchans. A term used in Domesday for peasants,
generally, above. boors, husbandmen.
Variable costs. Those costs which in the short run vary
in close relationship with changes in output, including
items such as raw materials, labor directly used in
production, and per unit royalties. Chillicothe Sand &
Gravel Co. v. Martin Marietta Corp., C.A.Ill., 615 F.2d
427, 431.
Costs, insurance and freight (C.I.F.). Quoted sales
price which includes cost of goods, freight and insur
ance.
Costumbre I kostumbre(y) I . In Spanish law, custom; an
unwritten law established by usage, during a long space
of time.
Co-sureties Ikowshur;}tiyz/. Joint sureties; two or more
sureties to the same obligation.
Cotenancy. A tenancy by several distinct titles but by
unity of possession, or any joint ownership or common
interest with its grantor. The term is broad enough to
comprise both tenancy in common and joint tenancy.
Coterelli Ikot;}relay/. Anciently, a kind of peasantry
who were outlaws; robbers.
Coterellus Ikot;}rebs/. In feudal law, a cottager; a
servile tenant, who held in mere villenage; his person,
issue, and goods were disposable at the lord's pleasure.
A coterellus, therefore, occupied a less favorable position
than a cotarius (q.v.), for the latter held by socage
tenure.
Coterie Ikowt;}riy I. A fashionable association, or a knot
of persons forming a particular circle. The origin of the
term was purely commercial, signifying an association,
in which each member furnished his part, and bore his
share in the profit and loss.
Cotland. In old English law, land held by a cottager,
whether in socage or villenage.
Cotsethla I kotsetJl;} I kotsetl;} I . In old English law, the
little seat or mansion belonging to a small farm.
Cotsethland I kotsetJlrend I . The seat of a cottage with
the land belonging to it.
Cotsetus I kotsiyt;}s I . A cottager or cottage-holder who
held by servile tenure and was bound to do the work of
the lord.
Cottage. Dwelling of farm laborer or small farmer.
Small vacation house. In English law, a small dwelling
house that has no land belonging to it.
Cottier tenancy Ik6tiy;}r ten;}nsiy I. A species of tenan
cy in Ireland, constituted by an agreement in writing,
and subject to the following terms: That the tenement
consists of a dwelling-house with not more than half an
acre of land; at a rental not exceeding a specified sum a
year; the tenancy to be for not more than a month at a
time; the landlord to keep the house in good repair.
Cotton notes. Receipts given for each bale of cotton
received on storage by a public warehouse.
Couchant I kawch;}nt I . Lying down; squatting. Co u
chant and levant (lying down and rising up) is a term
applied to animals trespassing on the land of one other
than their owner, for one night or longer. 3 Bl.Comm.
9.
Coucher, or courcher Ikawch;}r/. A factor who contin
ues abroad for traffic; also the general book wherein
any corporation, etc., register their acts.
Coulisse Ikuliysl. The stockbrokers' curb market in
Paris.
Council. An assembly of persons for the purpose of
concerting measures of state or municipal policy. The
legislative body in the government of cities or boroughs.
An advisory body selected to aid the executive; i.e. a
body appointed to advise and assist the governor in his
executive or judicial capacities or both. See also City
council; Legislative council; Metropolitan council.
Co mmon Co uncil. In American law, the lower or more
numerous branch of the legislative assembly of a city.
In English law, the councillors of the city of London.
The parliament, also, was anciently called the "common
council of the realm."
Privy Co uncil. See that title.
Select Co uncil. The name given, in some states, to the
upper house or branch of the council of a city.
Council of conciliation. In England, by the Acts 30 &
31 Vict., c. 105, power was given for the crown to grant
licenses for the formation of councils of conciliation and
arbitration, consisting of a certain number of masters
and workmen in any trade or employment, having pow
er to hear and determine all questions between masters
and workmen which may be submitted to them by both
parties, arising out of or with respect to the particular
trade or manufacture, and incapable of being otherwise
settled. They have power to apply to a justice to enforce
the performance of their award. The members are
elected by persons engaged in the trade.
Council of Legal Education. A body composed of mem
bers of the English bar which governs the bar. It hears
complaints against barristers and reports its findings
with recommendations to the benchers of the Inn of
Court of which the barrister is a member, who alone can
act. Established in 1852.
Council of the north. In England, a court instituted by
Henry VIII, in 1537, to administer justice in Yorkshire
and the four other northern counties. Under the presi
dency of Stratford, the court showed great rigor, border
ing, it is alleged, on harshness. It was abolished by 16
Car. I, the same act which abolished the Star Chamber.
Counsel Ikawns;}l/. Attorney or counsellor (q. v.).
Advice and assistance given by one person to another
in regard to a legal matter, proposed line of conduct,
claim, or contention. See also Counsel, right to.

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COUNSEL 
The words "counsel" and "advise" may be, and fre
quently are, used in criminal law to describe the offense 
of a person who, not actually doing the felonious act, by 
his will contributed to it or procured it to be done. See 
Accomplice; Aid and abet. 
See also Legislative counsel; Of counsel. 
Junior counsel. The younger of the counsel employed 
on the same side of a case, or the one lower in standing 
or rank, or who is intrusted with the less important 
parts of the preparation or trial of the cause. 
Counsellor. An attorney; lawyer. Member of the legal 
profession who gives legal advice and handles the legal 
affairs of client, including, if necessary, appearing on his 
or her behalf in civil, criminal, or administrative actions 
and proceedings. 
Counsel of record. Attorney whose appearance has 
been filed with court papers. 
Counsel, right to. Constitutional right of criminal de
fendant to court appointed attorney if he is financially 
unable to retain private counsel; guaranteed by Sixth 
and Fourteenth Amendments to U.S. Constitution, and 
as well by court rule (Fed.R.Crim.P. 44), and statute (18 
U.S.C.A. § 3006A). Such right to counsel exists with 
respect to felonies (Gideon v. Wainright, 372 U.S. 335, 83 
S.Ct. 792); misdemeanors when the sentence is to a jail 
term (Argersinger v. Hemlin, 407 U.S. 25, 92 S.Ct. 2006), 
and to juvenile delinquency proceedings (In re Gault, 
387 U.S. 1, 87 S.Ct. 1428). The extent of this right 
extends from the time that judicial proceedings have 
been initiated against the accused, whether by way of 
formal charge, preliminary hearing, indictment, infor
mation, or arraignment (Brewer v. Williams, 430 U.S. 
387, 97 S.Ct. 1232), through to sentencing (Mempa v. 
Rhay, 389 U.S. 128, 88 S.Ct. 254) and appeal (Douglas v. 
California, 372 U.S. 353, 83 S.Ct. 814). There is no 
absolute right to appointed counsel in postconviction 
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 
S.Ct. 1990, 95 L.Ed.2d 539. "Counsel" however within 
Sixth Amendment does not include a lay person but 
refers only to person authorized to practice law. U. S. v. 
Grismore, C.A.Colo., 546 F.2d 844, 847. See also Assist
ance of counsel; Critical stage; Effective assistance of 
counsel; Escobedo Rule; Miranda Rule; Public defender. 
Count, v. In pleading, to declare; to recite; to state a 
case; to narrate the facts constituting a plaintiffs cause 
of action. To plead orally; to plead or argue a case in 
court; to recite or read in court; to recite a count in 
court. 
Count, n. In pleading, the plaintiffs statement of a 
cause of action; a separate and independent claim. 
Used also to signify the several parts of an indictment, 
each charging a distinct offense. Fed. R. Crim. P. 7(c)(I), 
8. The usual organizational subunit of an indictment. 
Sanabria v. United States, 437 U.S. 54, 69 n. 23, 98 S.Ct. 
2170, 2181 n. 23, 57 L.Ed.2d 43. 
"Count" and "charge" when used relative to allega
tions in an indictment or information are synonymous. 
State v. Puckett, 39 N.M. 511, 50 P.2d 964, 965. 
348 
An earl. 
Co mmon counts. Certain general counts or forms insert
ed in a declaration in an action to recover a money debt, 
not founded on the circumstances of the individual case, 
but intended to guard against a possible variance, and to 
enable the plaintiff to take advantage of any ground of 
liability which the proof may disclose, within the gener
al scope of the action. 
The various forms of an action of assumpsit. In the 
action of assumpsit, these counts are as follows: For 
goods sold and delivered, or bargained and sold; for 
work done; for money lent; for money paid; for money 
received to the use of the plaintiff; for interest; or for 
money due on an account stated. 
General count. One stating in a general way the plain
tiffs claim. 
Mo ney counts. A species of common counts, so called 
from the subject-matter of them; embracing the indebi
tatus assumpsit count for money lent and advanced, for 
money paid and expended, and for money had and 
received, together with the insimul com pu tassent count, 
or count for money due on an account stated. 
Omnibus count. A count which combines in one all the 
money counts with one for goods sold and delivered, 
work and labor, and an account stated. 
Several counts. Where a plaintiff has several distinct 
causes of action, he is allowed to pursue them cumula
tively in the same action, subject to certain rules which 
the law prescribes. See e.g. Fed.R. Civil P. 8(e). 
Special count. As opposed to the common counts, in 
pleading, a special count is a statement of the actual 
facts of the particular case, or a count in which the 
plaintiffs claim is set forth with all needed particulari
ty. 
Countee. In old English law, the most eminent dignity 
of a subject before the Conquest. He was prrefectus or 
prrepositus comitatus, and had the charge and custody of 
the county; but this authority is now vested in the 
sheriff. 
Countenance. In old English law, credit; estimation. 
Also, encouragement; aiding and abetting. 
Counter, adj. Adverse; antagonistic; opposing or con
tradicting; contrary. 
Co unter-affidavit. An affidavit made and presented in 
contradiction or opposition to an affidavit which is made 
the basis or support of a motion or application. 
Co unter-bond. Bond which indemnifies a surety. See 
Co un ter-security below. 
Co unterclaim. See that title. 
Co unter-deed. A secret writing, either before a notary 
or under a private seal, which destroys, invalidates, or 
alters a public one. 
Co unter-letter. A species of instrument of defeasance 
common in the civil law. It is executed by a party who 
has taken a deed of property, absolute on its face, but

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349 
intended as security for a loan of money, and by it he 
agrees to reconvey the property on payment of a speci
fied sum. The two instruments, taken together, consti
tute what is known in Louisiana as an "antichresis" 
(q.v.). 
Co unter-mark. A sign put upon goods already marked; 
also the several marks put upon goods belonging to 
several persons, to show that they must not be opened, 
but in the presence of all the owners or their agents. 
Co unter-plea. See Plea. 
Co unter-security. A security given to one who has en
tered into a bond or become surety for another; a 
countervailing bond of indemnity. 
Counterclaim. A claim presented by a defendant in 
opposition to or deduction from the claim of the plain
tiff. Fed.R. Civil P. 13. If established, such will defeat 
or diminish the plaintiffs claim. Vnder federal rule 
practice, and also in most states, counterclaims are 
either compulsory (required to be made) or permissive 
(made at option of defendant). 
A counterclaim may be any cause of action in favor of 
one or more defendants or a person whom a defendant 
represents against one or more plaintiffs, a person 
whom a plaintiff represents or a plaintiff and other 
persons alleged to be liable. New York C.P.L.R. 
§ 3019(a). 
For requisite content of counterclaim under Federal 
Rules of Civil Procedure, see Complaint. Compare Cross
claim. See also Offset; Recoupment; Set-off; Transaction 
or occurrence test. 
Compulsory counterclaim. A pleading shall state as a 
counterclaim any claim which at the time of serving the 
pleading the pleader has against any opposing party, if 
it arises out of the transaction or occurrence that is the 
subject matter of the opposing party's claim and does 
not require for its adjudication the presence of third 
parties of whom the court cannot acquire jurisdiction. 
But the pleader need not state the claim if (1) at the 
time the action was commenced the claim was the 
subject of another pending action, or (2) the opposing 
party brought suit upon his claim by attachment or 
other process by which the court did not acquire juris
diction to render a personal judgment on that claim. 
Fed.R. Civil P. 13(a). 
For claim to constitute a compulsory counterclaim, it 
must be logically related to original claim and arise out 
of same subject matter on which original claim is based; 
many of same factual legal issues, or offshoots of same 
basic controversy between parties must be involved in a 
compulsory counterclaim. Tasner v. Billera, D.C.Ill., 
379 F.Supp. 809, 813. See also Transaction or occurrence 
test. 
Permissive Co un terclaim. A pleading may state as a 
counterclaim any claim against an opposing party not 
arising out of the transaction or occurrence that is the 
subject matter of the opposing party's claim. Fed.R. 
Civil P. 13(b). 
COUNTERPART WRIT 
Counterfeit /kawnt�rfit/. To forge; to copy or imitate, 
without authority or right, and with a view to deceive or 
defraud, by passing the copy or thing forged for that 
which is original or genuine. Most commonly applied to 
the fraudulent and criminal imitation of money or secu
rities. 18 V.S.C.A. § 471 et seq. Counterfeit in common 
parlance signifies fabrication of false image or represen
tation; counterfeiting an instrument means falsely mak
ing it; and in its broadest sense means making of copy 
without authority or right and with view to deceive or 
defraud by passing copy as original or genuine. Smith 
v. State, 7 Md.App. 457, 256 A.2d 357, 360, 361. See also 
Bootlegging; False making; Falsify; Forgery; Gray market 
goods; Imi tation. 
Counterfeit coin. Coin not genuine, but resembling or 
apparently intended to resemble or pass for genuine 
coin, including genuine coin prepared or altered so as to 
resemble or pass for coin of a higher denomination. 
Counterfeiter. One who unlawfully makes base coin in 
imitation of the true metal, or forges false currency, or 
any instrument of writing, bearing a likeness and simili
tude to that which is lawful and genuine, with an 
intention of deceiving and imposing upon another. 
Counter-feisance. The act of forging. 
Counter letter. An agreement to reconvey where prop
erty has been passed by absolute deed with the intention 
that it shall serve as security only. 
Countermand. A change or revocation of orders, au
thority, or instructions previously issued. It may be 
either express or implied; the former where the order or 
instruction already given is explicitly annulled or re
called; the latter where the party's conduct is incompa
tible with the further continuance of the order or in
struction, as where a new order is given inconsistent 
with the former order. 
Counteroffer. Statement made by the offeree to the 
offeror relating to the same matter as the original offer 
and proposing a substituted bargain differing from that 
proposed by the original offer. Thurmond v. Wieser, 
Tex.App. 10 Dist., 699 S.W.2d 680, 681. A statement by 
the offeree which has the legal effect of rejecting the 
offer and of proposing a new offer to the offeror. Re
statement, Second, Contracts, § 59. However, the provi
sions of V.C.C. § 2-207(1)(2) modifies this principle of 
contract law as regards sales of goods by providing that 
the "additional terms are to be construed as proposals 
for addition to the contract." 
Counterpart. In conveyancing, the corresponding part 
of an instrument; a duplicate or copy. Where an in
strument of conveyance, as a lease, is executed in parts, 
that is, by having several copies or duplicates made and 
interchangeably executed, that which is executed by the 
grantor is usually called the "original ," and the rest are 
"counterparts"; although, where all the parties execute 
every part, this renders them all originals. See Dupli
cate. 
Counterpart writ. A copy of the original writ, autho
rized to be issued to another county when the court has

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COUNTERPART WRIT 
jurisdiction of the cause by reason of the fact that some 
of the defendants are residents of the county or found 
therein. 
Counter-rolls. In English law, the rolls which sheriffs 
have with the coroners, containing particulars of their 
proceedings, as well of appeals as of inquests, etc. 
Countersign. As a noun, the signature of a secretary or 
other subordinate officer to any writing signed by the 
principal or superior to vouch for the authenticity of it. 
See also Attestation. 
As a verb, to sign in addition to the signature of 
another in order to attest the authenticity. 
Counter-signature. See Countersign. 
Countervail. To counterbalance; to avail against with 
equal force or virtue; to compensate for, or serve as an 
equivalent of or substitute for. 
Countervailing equity. See Equity. 
Countervail livery. At common law, a release was a 
form of transfer of real estate where some right to it 
existed in one person but the actual possession was in 
another; and the possession in such case was said to 
"countervail livery," that is, it supplied the place of and 
rendered unnecessary the open and notorious delivery of 
possession required in other cases. 
Counteur Ikawntyur/. In the time of Edward I, a plead
er; also called a Nurrator, and Serieant-Counteur. See 
Countors. 
Countez Ikawntiyz/. L. Fr. Count, or reckon. In old 
practice, a direction formerly given by the clerk of a 
court to the crier, after a jury was sworn, to number 
them; and which Blackstone says was given in his time, 
in good English, "count these." 4 BI.Comm. 340, note 
(u). 
Countors Ikawnt�rz/. Advocates, or serjeants at law, 
whom a man retains to defend his cause and speak for 
him in court, for their fees. 
Country. The territory occupied by an independent na
tion or people, or the inhabitants of such territory. In 
the primary meaning "country" denotes the population, 
the nation, the state, or the government, having posses
sion and- dominion over a territory. 
Rural, as distinguished from urban areas. 
Country whence he came. Within statute providing 
for deportation of aliens means country of alien's nativi
ty, where domicile has not been acquired elsewhere. 
Immigration Act 1924, § 13; Schenck ex reI. Capodilupo 
v. Ward, C.C.A.Mass., 80 F.2d 422, 426. But deportation 
to "country whence alien came" would be complied with 
if the alien was returned to political dominion in exile 
and control of country from whence he came. Delany v. 
Moraitis, C.C.A.Md., 136 F.2d 129-133. 
County. The largest territorial division for local govern
ment in state. Its powers and importance vary from 
state to state, and as well within the given state. In 
certain New England states, it exists mainly for judicial 
administration. In Louisiana, the equivalent unit is 
350 
called a parish. Counties are held in some jurisdictions 
to be municipal corporations, and are sometimes said to 
be involuntary municipal corporations. Other cases, 
seeking to distinguish between the two, hold that coun
ties are agencies or political subdivisions of the state for 
governmental purposes, and not, like municipal corpora
tions, incorporations of the inhabitants of specified re
gions for purposes of local government. Counties are 
also said to be merely quasi corporations. Jeff erson 
County ex reI. Grauman v. Jeff erson County Fiscal 
Court, 274 Ky. 91, 118 S.W.2d 181, 184. 
Body of the count y. The county at large, as distin
guished from any particular place within it. A county 
considered as a territorial whole. 
Co unty affairs. Those relating to the county in its 
organic and corporate capacity and included within its 
governmental or corporate powers. 
Co unty attorne y. Attorney employed by county to repre
sent it in civil matters; also, the prosecuting attorney in 
many counties. 
Co unty auditor. County official whose responsibility is 
examination of accounts and financial records of the 
county. 
Co unty board. The administrative body which governs a 
county. 
Co unty board of equalization. A body created for the 
purpose of equalizing values of property subject to taxa
tion. 
Co unty board of supervisors. A body of town and city 
officers acting for and on behalf of county in such 
matters as have been turned over to them by law. 
Co unty bonds. Broadly, any bonds issued by county 
officials to be paid for by a levy on a special taxing 
district, whether or not coextensive with the county. 
Co unty business. All business pertaining to the county 
as a corporate entity. All business of the county, and 
any other business of such county connected with or 
interrelated with the business of any other county prop
erly within the jurisdiction of the county commissioners' 
court. 
Co unty commissioners. Officers of a county, charged 
with a variety of administrative and executive duties, 
but principally with the management of the financial 
affairs of the county, its police regulations, and its 
corporate business. Sometimes the local laws give them 
limited judicial powers. In some states they are called 
"supervisors". 
Co unty courts. The powers and jurisdiction of such 
courts are governed by state constitutions or statutes; 
some with strictly administrative, or strictly judicial 
functions, or a combination of both; some with only 
criminal jurisdiction, or only civil, or both; some have 
exclusive jurisdictions, others concurrent jurisdiction; 
such jurisdictional powers may, in addition, be either 
general or specific. 
In England, such are the main civil courts. See the 
County Courts Act, 1984; Courts Act, 1971.

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351 
Co unty officers. Those whose general authority and 
jurisdiction are confined within the limits of the county 
in which they are appointed, who are appointed in and 
for a particular county, and whose duties apply only to 
that county, and through whom the county performs its 
usual political functions. Public officers who fill a posi
tion usually provided for in the organization of counties 
and county governments, and are selected by the county 
to represent it continuously and as part of the regular 
and permanent administration of public power in carry
ing out certain acts with the performance of which it is 
charged in behalf of the public. 
Co unty palatine. A term bestowed upon certain coun
ties in England, the lords of which in former times 
enjoyed especial privileges. They might pardon trea
sons, murders, and felonies. All writs and indictments 
ran in their names, as in other counties in the king's; 
and all offenses were said to be done against their peace, 
and not, as in other places, contra pacem domini regis. 
But these privileges have in modern times nearly disap
peared after the Judicature Act of 1925, § 18 and the 
Courts Act of 1971. 
Co unty powers. Such only as are expressly provided by 
law or which are necessarily implied from those ex
pressed. 
Co unty property. That which a county is authorized to 
acquire, hold, and sell. 
Co unty purposes. Those exercised by the county acting 
as a municipal corporation. As regards the rate of 
taxation, all purposes for which county taxation may be 
levied. Test whether a tax is levied for county purposes 
is whether it is for strictly county uses, for which county 
or its inhabitants alone would benefit, or is it for a 
purpose in which entire state is concerned and will 
profit. 
Co unty road. One which lies wholly within one county, 
and which is thereby distinguished from a state road, 
which is a road lying in two or more counties. 
Co unty-seat. A county-seat or county-town is the chief 
town of a county, where the county buildings and courts 
are located and the county business transacted. 
Co unty supervisors. See Co unty commissione rs, above. 
Co unty tax. Tax exclusively for county purposes, in 
which state has no sovereign interest or responsibility, 
and which has no connection with duties of county in its 
relation to state. 
Co unty-town. The county-seat; the town in which the 
seat of government of the county is located. 
Co unty warrant. An order or warrant drawn by some 
duly authorized officer of the county, directed to the 
county treasurer and directing him to pay out of the 
funds of the county a designated sum of money to a 
named individual, or to his order or to bearer. 
Fo reign count y. Any county having a judicial and mu
nicipal organization separate from that of the county 
where matters arising in the former county are called in 
COURSE 
question, though both may lie within the same state or 
country. 
Coup d'etat /kuwdeyta/. Political move to overthrow 
existing government by force. 
Coupled with an interest. This phrase, in the law of 
agency, has reference to a writing creating, conveying 
to, or vesting in the agent an interest in the estate or 
property which is the subject of the agency, as distin
guished from the proceeds or profits resulting from the 
exercise of the agency. 
Coupons. Interest and dividend certificates; also those 
parts of a commercial instrument which are to be cut, 
and which are evidence of something connected with the 
contract mentioned in the instrument. They are gener
ally attached to certificates of loan, where the interest is 
payable at particular periods, and, when the interest is 
paid, they are cut off and delivered to the payor. That 
portion of a bond redeemable at a specified date for 
interest payment. 
Coupons are written contracts for the payment of a 
definite sum of money on a given day, and being drawn 
and executed in a form and mode for the purpose, that 
they may be separated from the bonds and other instru
ments to which they are usually attached, it is held that 
they are negotiable and that a suit may be maintained 
on them without the necessity of producing the bonds. 
Each matured coupon upon a negotiable bond is a sepa
rable promise, distinct from the promises to pay the 
bonds or the other coupons, and gives rise to a separate 
cause of action. Thompson v. Perrine, 106 U.S. 589, 1 
S.Ct. 564, 27 L.Ed. 298. 
Co upon bonds. Bonds to which are attached coupons for 
the several successive installments of interest to maturi
ty. 
Co upon notes. Promissory notes with coupons attached, 
the coupons being notes for interest written at the 
bottom of the principal note, and designed to be cut off 
severally and presented for payment as they mature. 
Cou pon rate of interest. The interest rate stated on a 
bond. The coupon rate of interest times the par, or 
principal, value of a bond determines the periodic dollar 
interest payments received by the bondholder. 
Coupon securities. Such securities usually provide for 
the payment of principal to the bearer thereof, and for 
payment of an installment of interest to the bearer of 
the respective interest coupons upon presentation there
of upon their respective due dates. Coupon securities 
are usually in the denomination of $1,000. Ownership 
of the security and/or coupons is transferred by delivery 
thereof. Such a security is negotiable under the Uni
form Commercial Code. U.C.C. §§ 8-105, 8-302. 
Cour de cassation /kur d::l kasasyown/. The supreme 
judicial tribunal of France, having appellate jurisdiction 
only. 
Course. In surveying, the direction of a line with refer
ence to a meridian.

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COURSE OF BUSINESS 
Course of business. What is usually and normally done 
in the management of trade or business. See also 
Course of dealing; Regular course of business. 
In worker's compensation acts, the usual course of 
business of the employer covers the normal operations 
which form part of the ordinary business carried on, and 
not including incidental and occasional operations hav
ing for their purpose the preservation of the premises or 
the appliances used in the business. 
Commercial paper is said to be transferred, or sales 
alleged to have been fraudulent may be shown to have 
been made, "in the course of business," or "in the usual 
and ordinary course of business," when the circumstanc
es of the transaction are such as usually and ordinarily 
attend dealings of the same kind and do not exhibit any 
signs of haste, secrecy, or fraudulent intention. 
Course of dealing. A sequence of previous acts and 
conduct between the parties to a particular transaction 
which is fairly to be regarded as establishing a common 
basis of understanding for interpreting their expressions 
and other conduct. U.C.C. § 1-205(1). See also Trade 
usage; Usage (Usage of trade). 
Course of employment. These words as applied to 
compensation for injuries within the purview of work
er's compensation acts, refer to the time, place, and 
circumstances under which the accident takes place. A 
worker is in course of employment when, within time 
covered by employment, he is doing something which he 
might reasonably do while so employed at proper place. 
Generally, in order that an injury may arise out of and 
in the course of employment, it must be received while 
the worker is doing the duty he is employed to perform 
and also as a natural incident of the work flowing 
therefrom as a natural consequence and directly con
nected therewith. 
The expression "in the course of his employment," in 
the rule that an employer is liable for the torts of an 
employee done in the course of employment, means 
while engaged in the service of the employer while 
engaged generally in the employer's work, as distin
guished from acts done when the employee steps outside 
of employment to do an act for himself or herself not 
connected with the employer's business. The test as to 
whether an injury has arisen out of the "course of 
employment" is whether there is a causal connection 
between the duties of employment and the injury suf
fered. Tri-State Commodities, Inc. v. Stewart, Colo. 
App., 689 P.2d 712, 713. 
State statutes and decisions differ as to the types and 
scope of activities which fall within "course of employ
ment". 
See also Arising out of and in the course of employment; 
Deviation; Scope of employment. 
Course of performance. The understandings of per
formance which develop by conduct without objection 
between two parties during the performance of an exec
utory contract. 
352 
Course of river. The course of a river is a line parallel 
with its banks. The term is not synonymous with the 
"current" of the river. 
Course of the voyage. By this term is understood the 
regular and customary track, if such there be, which a 
ship takes in going from one port to another, and the 
shortest way. 
Course of trade. What is customarily or ordinarily 
done in the management of trade or business. See also 
Course of business. 
Course of vein. In mining, the "course of the vein" 
appearing on the surface is the course of its apex, which 
is generally inclined and undulated and departs more or 
less materially from the strike. 
Course of vessel. In navigation, the "course" of a vessel 
is her apparent course, and not her heading at any given 
moment. It is her actual course. 
Courses and distances. A method or form for describ
ing real estate in deeds and mortgages by setting forth 
the distances in one direction as a boundary, followed by 
other distances and the direction thereof until the entire 
parcel has been described. See also Metes and bounds. 
Court. A space which is uncovered, but which may be 
partly or wholly inclosed by buildings or walls. When 
used in connection with a street, indicates a short street, 
blind alley, or open space like a short street inclosed by 
dwellings or other buildings facing thereon. 
A legislative assembly. Parliament is called in the 
old books a court of the king, nobility, and commons 
assembled. This meaning of the word has also been 
retained in the titles of some deliberative bodies, such as 
the "General Court" of Massachusetts, i.e., the legisla
ture. 
The person and suit of the sovereign; the place where 
the sovereign sojourns with his regal retinue, wherever 
that may be. The English government is spoken of in 
diplomacy as the court of St. James, because the palace 
of St. James is the official palace. 
An organ of the government, belonging to the judicial 
department, whose function is the application of the 
laws to controversies brought before it and the public 
administration of justice. The presence of a sufficient 
number of .the members of such a body regularly con
vened in an authorized place at an appointed time, 
engaged in the full and regular performance of its 
functions. A body in the government to which the 
administration of justice is delegated. A body organized 
to administer justice, and including both judge and jury. 
An incorporeal, political being, composed of one or more 
judges, who sit at fixed times and places, attended by 
proper officers, pursuant to lawful authority, for the 
administration of justice. An organized body with de
fined powers, meeting at certain times and places for the 
hearing and decision of causes and other matters 
brought before it, and aided in this, its proper business, 
by its proper officers, viz., attorneys and counsel to 
present and manage the business, clerks to record and 
attest its acts and decisions, and ministerial officers to

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353 
execute its commands, and secure due order in its pro
ceedings. 
The words "court" and "judge," or "judges," are fre
quently used in statutes as synonymous. When used 
with reference to orders made by the court or judges, 
they are to be so understood. 
General Classification 
Courts may be classified and divided according to 
several methods, the following being the more usual: 
Appellate courts. Such courts review decisions of inferi
or courts, and may be either intermediate appellate 
courts (court of appeals) or supreme courts. See Court of 
Appeals; Supreme Court. 
Article III courts. See Constitutional court. 
Civil and criminal courts. The former being such as are 
established for the adjudication of controversies between 
individual parties, or the ascertainment, enforcement, 
and redress of private rights; the latter, such as are 
charged with the administration of the criminal laws, 
and the punishment of wrongs to the public. While in 
some states there are both civil and criminal courts, in 
most states the trial court is a court of general Jurisdic
tion (q.v.). 
Co urt above, court below. In appellate practice, the 
"court above" is the one to which a cause is removed for 
review, whether by appeal, writ of error, or certiorari; 
while the "court below" is the one from which the case 
is removed (normally the trial court). 
Co urt in bank (en bane). A meeting of all the judges of a 
court, usually for the purposes of hearing arguments on 
demurrers, motions for new trial, etc., as distinguished 
from sessions of the same court presided over by a single 
judge or panel of judges. See Full court, below. 
Co urt of com petent Jurisdiction. One having power and 
authority of law at the time of acting to do the particu
lar act. One recognized by law as possessing the right 
to adjudicate a controversy. One having jurisdiction 
under the Constitution and/or laws to determine the 
question in controversy. 
Co urt of general Jurisdiction. A court having unlimited 
trial jurisdiction, both civil and criminal, though its 
judgments and decrees are subject to appellate review. 
A superior court; a court having full jurisdiction within 
its own jurisdictional area. 
Co urt of limited Jurisdiction. Court with jurisdiction 
over only certain types of matters; e.g. probate or juve
nile court. When a court of general jurisdiction pro
ceeds under a special statute, it is a "court of limited 
jurisdiction" for the purpose of that proceeding, and its 
jurisdiction must affirmatively appear. 
Co urt of origi nal Jurisdiction. Courts where actions are 
initiated and heard in first instance. 
Co urt of record. A court that is required to keep a 
record of its proceedings, and that may fine or imprison. 
Such record imports verity and cannot be collaterally 
impeached. 
COURT ADMINISTRATOR 
De facto court. One established, organized, and exercis
ing its judicial functions under authority of a statute 
apparently valid, though such statute may be in fact 
unconstitutional and may be afterwards so adjudged; or 
a court established and acting under the authority of a 
de facto government. 
Equity courts and law courts. The former being such as 
possess the jurisdiction of a chancellor, apply the rules 
and principles of chancery (i.e. equity) law, and follow 
the procedure in equity; the latter, such as have no 
equitable powers, but administer justice according to the 
rules and practice of the common law. Under Rules of 
Civil Procedure, however, equity and law have been 
merged at the procedural level, and as such this distinc
tion no longer exists in the federal courts nor in most 
state courts, though equity substantive jurisprudence 
remains viable. Fed.R. Civil P. 2. See Court of Chancery; 
Court of Equity. 
Full court. A session of a court, which is attended by all 
the judges or justices composing it. See Co urt in bank, 
above. 
Spiritual courts. In English law, the ecclesiastical 
courts, or courts Christian. 3 Bl.Comm. 61. See Ecclesi
astical courts. 
Superior and inferior courts. The former being courts of 
general original jurisdiction in the first instance, and 
which exercise a control or supervision over a system of 
lower courts, either by appeal, error, or certiorari; the 
latter being courts of small or restricted jurisdiction, 
and subject to the review or correction of higher courts. 
Sometimes the former term is used to denote a particu
lar group or system of courts of high powers, and all 
others are called "inferior courts". 
Trial courts. Generic term for courts where civil actions 
or criminal proceedings are first commenced at the state 
level such are variously called municipal, circuit, superi
or, district, or county courts. At the federal level, the 
U.S. district courts are the trial courts. 
As to the division of courts according to their Jurisdic
tion, see Jurisdiction. 
As to several names or kinds of courts not specifically 
described in the titles immediately following, see Admi
ralty court; Appel late court; Arches Court; Bankruptcy 
proceedings (Bankruptcy courts); Circuit courts; City 
courts; Claims court; Common wealth court; ConSistory 
courts; Constitutional court; Consular courts; County 
(Count y courts); Court-baron; Court of High Commission; 
Customs Court; District (District courts); Ecclesiastical 
courts; Family court; Federal courts; Forest courts; In
stance court; Insular courts; International Court of Justice; 
Justice's courts; Kangaroo court; Land court; Legislative 
courts; Maritime court; Mayor's court; Mili tary courts; 
Moot court; Municipal courts; Orphan's courts; Police 
court; Prerogative court; Prize courts; Probate court; Su
perior (Superior courts); Supreme court; Surrogate court; 
Tax court; United States Courts. 
Court administrator. Generally, a non-judicial officer 
whose responsibility is the administration of the courts

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COURT ADMINISTRATOR 
as to budgets, juries, judicial assignments, calendars and 
non-judicial personnel. 
Court-baron. In English law, a court which, although 
not one of record, was incident to every manor, and 
could not be severed therefrom. It was ordained for the 
maintenance of the services and duties stipulated for by 
lords of manors, and for the purpose of determining 
actions of a personal nature, where the debt or damage 
was under forty shillings. Customary court-baron was 
one appertaining entirely to copyholders. 3 Bl.Comm. 
33. Freeholders ' court-baron was one held before the 
freeholders who owed suit and service to the manor. It 
was the court-baron proper. 
Court calendar. A list of cases for trial or appellate 
argument prepared for a given period of time as a week, 
month or even a term of the sitting of the court. Such 
may include scheduling of motions and other pretrial 
matters. See also Docket. 
Court Christian. The ecclesiastical courts in England 
often so called, as distinguished from the civil courts. 1 
Bl.Comm. 83; 3 Bl.Comm. 64. 
Court commissioner. A person appointed by a judge to 
take testimony and find facts or to carry out some 
specific function connected with a case, such as selling 
property which is the subject of a petition to partition. 
See also Commissioner; Court administrator; Magistrate; 
Master; Referee. 
Court en banc Ikurt om bOIJk/. See Court (Co urt in 
bank). 
Courtesy. See Curtesy. 
Court for Consideration of Crown Cases Reserved. 
In England, a court established by St. 11 & 12, Vict., c. 
78, composed of such of the judges of the superior courts 
of Westminister as were able to attend, for the consider
ation of questions of law reserved by any judge in a 
court of oyer and terminer, . gaol delivery, or quarter 
sessions, before which a prisoner had been found guilty 
by verdict. Such question is stated in the form of a 
special case. 4 Steph. The trial judge was empowered 
to "state a case" for the opinion of that court. He could 
not be compelled to do so, and only a question of law 
could be raised. If the court considered that the point 
had been wrongly decided at the trial, the conviction 
would be quashed. By Act of 1907, the Court of Crimi
nal Appeal was created and the Court for Crown Cases 
Reserved was abolished. 
Court for Divorce and Matrimonial Causes. This 
court was established by St. 20 & 21, Vict., c. 85, which 
transferred to it all jurisdiction then exercisable by any 
ecclesiastical court in England, in matters matrimonial, 
and also gave it new powers. The ':!ourt consisted of the 
lord chancellor, the three chiefs, and three senior puisne 
judges of the common-law courts, and the judge ordi
nary, who together constituted, and still constitute, the 
"full court." The judge ordinary heard almost all mat
ters in the first instance. By the judicature act, 1873, 
§ 3, the jurisdiction of the court was transferred to the 
supreme court of judicature. 
354 
Court for the Correction of Errors. The name of a 
court having jurisdiction for review, by appeal or writ of 
error. The name was formerly used in New York and 
South Carolina. 
Court for the Relief of Insolvent Debtors. In English 
law, a local court which had its sittings in London only, 
which received the petitions of insolvent debtors, and 
decided upon the question of granting a discharge. 
Abolished by the Bankruptcy Act of 1861. 
Court for the Trial of Impeachments. A tribunal 
empowered to try any officer of government or other 
person brought to its bar by the process of impeachment. 
In England, the house of lords constitutes such a court; 
in the United States, the senate; and in the several 
states, usually the upper house of the legislative assem
bly. See also Imp eachment. 
Court-hand. In old English practice, the peculiar hand 
in which the records of courts were written from the 
earliest period down to the reign of George II. Its 
characteristics were great strength, compactness, and 
undeviating uniformity; and its use undoubtedly gave to 
the ancient record its acknowledged superiority over the 
modern, in the important quality of durability. 
The writing of this hand, with its peculiar abbrevia
tions and contractions, constituted, while it was in use, 
an art of no little importance, being an indispensable 
part of the profession of "clerkship," as it was called. 
Two sizes of it were employed, a large and a small hand; 
the former, called "great court-hand," being used for 
initial words or clauses, the placita of records, etc. 
Court-house. The building occupied for the public ses
sions of a court, with its various offices. The building 
occupied and appropriated according to law for the hold
ing of courts. 
Court, Hundred. See Hundr ed Court. 
Court-Lands. Domains or lands kept in the lord's hands 
to serve his family. 
Court-Leete The name of an English court of record 
held once in the year, and not oftener, within a particu
lar hundred, lordship, or manor, before the steward of 
the leet; being the king's court granted by charter to 
the lords of those hundreds or manors. Its office was to 
view the frankpledges, that is, the freemen within the 
liberty; to present by jury crimes happening within the 
jurisdiction; and to punish trivial misdemeanors. 
Court-Martial. An ad hoc military court, convened un
der authority of government and the Uniform Code of 
Military Justice, 10 U.S.C.A. § 801 et seq., for trying 
and punishing offenses in violation of the Uniform Code 
of Military Justice committed by persons subject to the 
Code, particularly members of the armed forces. 
Courts-martial are courts of law and courts of justice 
although they are not part of the federal judiciary 
established under Article III of the Constitution. They 
are legislative criminal courts established in the armed 
forces under the constitutional power of congress to 
regulate the armed forces. Their jurisdiction is entirely 
penal and disciplinary. They may be convened by the

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355 
president, secretaries of military departments and by 
senior commanders specifically empowered by law. The 
type (e.g. summary, special, or general) and composition 
of courts-martial varies according to the gravity of of
fenses. Generally they are designed to deal with the 
internal affairs of the military when summary command 
discipline is inadequate to achieve corrective results, but 
they have concurrent jurisdiction with civil courts over 
a wide range of civil offenses. See Courts of Mil itary 
Review; Court of Mil itary Appeals. See also Code of 
Military Justice. 
Court of Admiralty. A court having jurisdiction of 
admiralty and maritime matters; such jurisdiction be
ing possessed by federal district courts. See Admiralty 
Court. 
High Co urt of Admiralty. In English law, this was a 
court which exercised jurisdiction in prize cases, and 
had general jurisdiction in maritime causes, on the 
instance side. Its proceedings were usually in rem, and 
its practice and principles derived in large measure from 
the civil law. The judicature acts of 1873 transferred all 
the powers and jurisdiction of this tribunal to the pro
bate, divorce, and admiralty division of the high court of 
justice. The Justice Act of 1970 established a new 
Admiralty Court as part of the Queens Bench Division of 
the High Court. Now governed by Supreme Court Act, 
1981, §§ 4, 5. 
Court of Ancient Demesne. In English law, a court of 
peculiar constitution, held by a bailiff appointed by the 
king, in which alone the tenants of the king's demesne 
could be impleaded. 
Court of Appeal, His Majesty's. Formerly, the chief 
appellate tribunal of England. It was established by the 
judicature acts of 1873 and 1875, and invested with the 
jurisdiction formerly exercised by the court of appeal in 
chancery, the exchequer chamber, the judicial commit
tee of the privy council in admiralty and lunacy appeals, 
and with general appellate jurisdiction from the high 
court of justice. It consists of the Lord Chancellor, Lord 
Chief Justice, Master of the Rolls, President of the 
Family Division, former Lord Chancellors, Lords of Ap
peal in Ordinary and Lords Justices of Appeal. There 
are two divisions: (1) Criminal Division which hears 
appeals from the Crown Court. (2) Civil Division which 
hears appeals from various civil tribunals. Appeal lies 
from both divisions to the House of Lords. 
Court of Appeals. In those states with courts of ap
peals, such courts are usually intermediate appellate 
courts (with the highest appellate court being the state 
Supreme Court). In New York, Maryland, and the 
District of Columbia, however, such are the highest 
appellate courts. In West Virginia the Supreme Court 
of Appeals is the court of last resort. Alabama, Okla
homa, Tennessee, and Texas have Courts of Criminal 
Appeals, with those in Oklahoma and Texas being the 
highest appellate courts for criminal matters. Alabama, 
Oklahoma, and Texas have Courts of Civil Appeals, 
which are intermediate appellate courts. See also Su
preme Cou rt. 
COURT OF BROTHERHOOD 
The United States is divided into thirteen federal 
judicial circuits in each of which there is established a 
court of appeals known as the United States Court of 
Appeals for the circuit. Included in these thirteen judi
cial circuits is the Court of Appeals for the District of 
Columbia and the Court of Appeals for the Federal 
Circuit. 28 U.S.C.A. §§ 41, 43. See Courts of Appeals, 
U.S . 
Court of Appeals for the Federal Circuit. See Courts 
of Appeals, U.S. 
Court of Appeals in Cases of Capture. A court erected 
by act of congress under the articles of confederation 
which preceded the adoption of the Constitution. It had 
appellate jurisdiction in prize causes. 
Court of Archdeacon. The most inferior of the English 
ecclesiastical courts, from which an appeal generally lies 
to that of the bishop (i.e., to the Consistory Court). Such 
court is now virtually obsolete. 
Court of Assistants. Formerly a court in Massachusetts 
organized in 1630, consisting of the governor, deputy 
governor and assistants. It exercised the whole power 
both legislative and judicial of the colony and an exten
sive chancery jurisdiction as welL 
Court of Attachments. In old English law, the lowest of 
the three courts held in the forests. It has fallen into 
total disuse. It was held before the verderers of the 
forest once in every forty days, to view the attachments 
by the foresters for offences against the vert and the 
venison. It had cognizance only of small trespasses. 
Larger ones were enrolled and heard by the Justices in 
Eyre. 
Court of Audience. An ecclesiastical court, in which 
the primates once exercised in person a considerable 
part of their jurisdiction. Such courts, which existed in 
England for both the Archbishop of Canterbury and 
York, have long since been disused. 
Court of Augmentation. An English court created in 
the time of Henry VIII (27 Hen. VIII, c. 27), with 
jurisdiction over the property and revenue of certain 
religious foundations, which had been made over to the 
king by act of parliament, and over suits relating to the 
same. It was called "The Court of the Augmentations of 
the Revenues of the King's Crown" (from the augmenta
tion of the revenues of the crown derived from the 
suppression of the monasteries), and was dissolved in the 
reign of Queen Mary, but the Office of Augmentation 
remained long after; the records of the court are now at 
the Public Record Off ice. 
Court of Bankruptcy. Federal court established in 
each judicial district, as an adjunct to the U.S. district 
court for such district, with general jurisdiction over 
bankruptcy matters. 28 U.S.C.A. §§ 151, 1334. See also 
Bankruptcy proceedings. 
Court of Brotherhood. In old English law, an assembly 
of the mayors or other chief officers of the principal 
towns of the Cinque Ports in England, originally admin
istering the chief powers of those ports, now almost 
extinct.

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COURT OF CHANCERY 
Court of Chancery. A court administering equity and 
proceeding according to the forms and principles of 
equity. In England, prior to the Judicature Acts of 1925 
(whereby the Court was superseded by the Chancery 
Division), the style of the court possessing the largest 
equitable powers and jurisdiction was the "High Court 
of Chancery." By the Supreme Court of Judicature Act, 
1925, all three divisions of the High Court administer 
both law and equity. See now, Supreme Court Act, 
1981, § 49. 
In some of the United States, the title "court of 
chancery" is applied to a court possessing general equity 
powers, distinct from the courts of law. Courts of chan
cery (equity courts) have been abolished by all states 
that have adopted Rules of Civil Procedure. See also 
Court of Equity. 
Court of Chivalry. In English law, the name of a court 
anciently held as a court of honor merely, before the 
earl-marshal, and as a criminal court before the lord 
high constable, jointly with the earl-marshal. But it is 
also said that this court was held by the constable, and 
after that office reverted to the crown in the time of 
Henry VIII, by the earl-marshal. It had jurisdiction as 
to contracts and other matters touching deeds of arms or 
war, as well as pleas of life or member. It also corrected 
encroachments in matters of coat-armor, precedency, 
and other distinctions of families. It is now grown 
entirely out of use (except for one case in 1955, after a 
lapse of 200 years) on account of the feebleness of its 
jurisdiction and want of power to enforce its judgments, 
as it could neither fine nor imprison, not being a court 
of record. 
Court of Civil Appeals. Such exist as intermediate 
appellate courts in Alabama, Oklahoma, and Texas. 
The Texas Court of Civil Appeals has appellate jurisdic
tion of cases decided in district and county courts. 
Court of Claims. The federal Court of Claims was 
established in 1855. The Federal Courts Improvement 
Act of 1982 abolished this Court and created a new 
United States Claims Court. Combined with the also 
abolished United States Court of Customs and Patent 
Appeals, the former Court of Claims became the new 
United States Court of Appeals for the Federal Circuit 
(C.A.F.C.). The "Trial Division" of the former Court of 
Claims became the newly created U.S. Claims Court. See 
Claims Court, U.S.; Tucker Act. 
A number of states also have courts of claims (e.g., 
Illinois, Michigan, New York, Ohio). 
Court of Common Pleas. In English law, one of the 
four superior courts at Westminster, which existed up to 
the passing of the judicature acts. It was also styled the 
"Common Bench". It was one of the courts derived 
from the breaking up of the aula regis, and had exclu
sive jurisdiction of all real actions and of communia 
placita, or common pleas, i.e., between subject and sub
ject. It was presided over by a chief justice with four 
puisne judges (later five, by virtue of 31 & 32, Vict., c. 
125, § 11, subsec. 8). Appeals lay anciently to the king's 
bench, but afterwards to the exchequer chamber. See 3 
356 
Bl.Comm. 37, et seq. Its jurisdiction was altogether 
confined to civil matters, having no cognizance in crimi
nal cases, and was concurrent with that of the queen's 
bench and exchequer in personal actions and ejectment. 
In 1873 the court became the Common Pleas Division of 
the High Court of Justice. In 1880 by Order in Council 
that division was merged into the Queen's Bench Divi
sion. 
In the United States, such courts exist in Pennsylva
nia wherein all civil and criminal actions are begun 
(except such as are brought before courts of inferior 
jurisdiction). Most such courts have been abolished, 
however, with their jurisdiction being transferred to 
district, circuit, or superior courts. 
Court of Conciliation. A court which proposes terms of 
adjustment, so as to avoid litigation; e.g. conciliation 
between debtor and creditor over disputed debt. May 
also function to aid in resolving marital disputes. See 
also Smal l Claims Court. 
Court of Conscience. The same as courts of request 
(q.v.). This name was also frequently applied to the 
courts of equity or of chancery, not as name but as a 
description. See also Conscience. 
Court of Convocation. In English ecclesiastical law, a 
court, or assembly, comprising all the high officials of 
each province and representatives of the minor clergy. 
It was in the nature of an ecclesiastical parliament; 
and, so far as its judicial functions extend, it had juris
diction of cases of heresy, schism, and other purely 
ecclesiastical matters. An appeal was to the king in 
council. 
Court of County Commissioners. In some states, a 
court of record in each county. 
Court of Criminal Appeals. See Court of Appeals. 
Court of Customs and Patent Appeals. See Customs 
and Patent Appeals Court. 
Court of Delegates. An English tribunal composed of 
delegates appointed by royal commission, and formerly 
the great court of appeal in all ecclesiastical causes. 
The powers of the court were, by 2 & 3 Wm. IV, c. 92, 
transferred to the privy council. 3 Bl.Comm. 66. A 
commission of review was formerly granted, in extraor
dinary cases, to revise a sentence of the court of del
egates, when that court had apparently been led into 
material error. 
Court of Equity. A court which has jurisdiction in 
equity, which administers justice and decides controver
sies in accordance with the rules, principles, and prece
dents of equity, and which follows the forms and proce
dure of chancery; as distinguished from a court having 
the jurisdiction, rules, principles, and practice of the 
common law. Equity courts have been abolished in all 
states that have adopted Rules of Civil Procedure; law 
and equity actions having been merged procedurally 
into a single form of "civil action". Fed.R. Civil P. 2. 
See also Court of Chancery.

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357 
Court of Error. An expression formerly applied espe
cially in England to the court of exchequer chamber and 
the house of lords, as taking cognizance of error brought. 
It was formerly applied in some of the United States (e.g. 
Connecticut) to the court of last resort in the state; and 
in its most general sense denotes any court having 
power to review the decisions of lower courts on appeal, 
error, certiorari, or other process. See Court of Appeals. 
Court of Errors and Appeals. Formerly, the court of 
last resort in the states of New Jersey and New York. 
Court of Exchequer Ikort �v ekschek�r/. In English 
law, a very ancient court of record, set up by William 
the Conqueror as a part of the aula regis, and after
wards one of the four superior courts at Westminster. 
It was, however, inferior in rank to both the king's 
bench and the common pleas. It was presided over by a 
chief baron and four puisne barons. It was originally 
the king's treasury, and was charged with keeping the 
king's accounts and collecting the royal revenues. But 
pleas between subject and subject were anciently heard 
there, until this was forbidden by the Articula super 
Chartas (1290), after which its jurisdiction as a court 
only extended to revenue cases arising out of the non
payment or withholding of debts to the crown. But the 
privilege of suing and being sued in this court was 
extended to the king's accountants, and later, by the use 
of a convenient fiction to the effect that the plaintiff was 
the king's debtor or accountant, the court was thrown 
open to all suitors in personal actions. The exchequer 
had formerly both an equity side and a common-law 
side, but its equity jurisdiction was taken away by the 
statute 5, Vict., c. 5 (1842), and transferred to the court 
of chancery. The judicature act (1873) transferred the 
business and jurisdiction of this court to the "Exchequer 
Division" of the "High Court of Justice" and by Orders 
in Council under Sec. 32 of that Act the Exchequer 
Division was in turn merged in the Queen's Bench 
Division. 
Court of Exchequer Chamber Ikort �v ekschek�r 
cheymb�r I. The name of a former English court of 
appeal, intermediate between the superior courts of 
common law and the house of lords. When sitting as a 
court of appeal from any one of the three superior courts 
of common law, it was composed of judges of the other 
two courts. 3 Bl.Comm. 56, 57. By the judicature act 
(1873) the jurisdiction of this court was transferred to 
the court of appeal. 
Court of Faculties Ikort �v frek�ltiyz/. A tribunal of 
the archbishop in England. It does not hold pleas in 
any suits, but grants special dispensations, and creates 
rights to pews, monuments, and other mortuary mat
ters. It has also various other powers as given by the 
Ecclesiastical Licenses Act of 1533. 
Court of First Instance. A court of original or primary 
jurisdiction, e.g. trial court. Courts of this title may be 
found in the jurisprudence of the Philippine Islands. 
Court of General Quarter Sessions of the Peace. For
merly, a court of criminal jurisdiction in New Jersey. 
COURT OF INQUIRY 
In English law, a court of criminal jurisdiction held in 
each county once in every quarter of a year, but in the 
county of Middlesex twice a month. When held at other 
times than quarterly, the sessions were called "general 
sessions of the peace." Quarter sessions were abolished 
by the Courts Act of 1971, with most jurisdiction trans
ferred to the Crown Court (q.v.). 
Court of General Sessions. The name given in some 
states to a court of general original jurisdiction in crimi
nal cases. 
Court of Great Sessions in Wales. A court formerly 
held in Wales; abolished by 11 Geo. IV, and 1 Wm. IV, 
c. 70 (1830) and the Welsh judicature incorporated with 
that of England. 
Court of Guestling. In old English law, an assembly of 
the members of the Court of Brotherhood (supra) togeth
er with other representatives of the corporate members 
of the Cinque Ports, invited to sit with the mayors of the 
seven principal towns. 
Court of High Commission. In English law, an ecclesi
astical court of formidable jurisdiction, for the vindica
tion of the peace and dignity of the church, by reform
ing, ordering, and correcting the ecclesiastical state and 
persons, and all manner of errors, heresies, schisms, 
abuses, offenses, contempts, and enormities. Under 
such jurisdiction the Court exercised enormous despotic 
power. 3 Bl.Comm. 67. It was erected by St. 1 Eliz., c. 1 
(1588), and abolished in 1640. James II attempted to 
resurrect it. The Bill of Rights declared it illegal in 
1688. 
Court of Honor. In old English law, a court having 
jurisdiction to hear and redress injuries or affronts to a 
man's honor or personal dignity, of a nature not cogniza
ble by the ordinary courts of law, or encroachments 
upon his rights in respect to heraldry, coat-armor, right 
of precedence, and the like. It was one of the functions 
of the Court of Chivalry (q.v.) in England to sit and act 
as a court of honor. 3 Bl.Comm. 104. 
The name is also given in some European countries to 
a tribunal of army officers (more or less distinctly recog
nized by law as a "court") convened for the purpose of 
inquiring into complaints affecting the honor of brother 
officers and punishing derelictions from the code of 
honor and deciding on the causes and occasions for 
fighting duels, in which officers are concerned, and the 
manner of conducting them. 
Court of Hustings. In English law, the county court of 
London, held before the mayor, recorder, and sheriff, but 
of which the recorder, is, in effect, the sole judge. No 
actions can be brought in this court that are merely 
personal. Since the abolition of all real and mixed 
actions except ejectment, the jurisdiction of this court 
has fallen into comparative desuetude. 
Formerly, a local court in some parts of Virginia. 
Court of Inquiry. In English law, a court sometimes 
appointed by the crown to ascertain whether it be prop
er to resort to extreme measures against a person

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COURT OF INQUIRY 
charged before a court-martial. Also a court for hearing 
the complaints of private soldiers. 
In American law, formerly, a court constituted by 
authority of the articles of war, invested with the power 
to examine into the nature of any transaction of, or 
accusation or imputation against, any officer or soldier, 
when demanded by him. Rev.St. § 1342, arts. 115, 116. 
Repealed by Act June 4, 1920, c. 227, § 4, 41 Stat. 812. 
They were not strictly courts, having no power to try 
and determine guilt or innocence. They were rather 
agencies created by statute to investigate facts and re
port thereon. They could not compel the attendance of 
witnesses nor require them to testify. 
In Texas when a judge of any county or district court 
of this state, acting in his capacity as magistrate, has 
good cause to believe that an offense has been commit
ted against the laws of this state, he may summon and 
examine any witness in relation thereto in accordance 
with the rules hereinafter provided, which procedure is 
defined as a "Court of Inquiry". 
Court of International Trade. This federal court was 
originally established as the Board of United States 
General Appraisers in 1890, and in turn was superseded 
by the United States Customs Court in 1926. In 1956 
the Customs Court was established as an Article III 
court. The Customs Court Act of 1980 constituted the 
court as the United States Court of International Trade 
and revised its jurisdiction. As so reconstituted, the 
court has jurisdiction over any civil action against the 
United States arising from federal laws governing im
port transactions and also jurisdiction to review deter
minations as to the eligibility of workers, firms, and 
communities for adjustment assistance under the Trade 
Act of 1974. Civil actions commenced by the United 
States to recover customs duties, to recover on a customs 
bond, or for certain civil penalties alleging fraud or 
negligence are also within its exclusive jurisdiction. 
The court is composed of a chief judge and eight judges, 
not more than five of whom may belong to any one 
political party. 
Court of Justice Seat. In English law, the principal of 
the forest courts. Called also Court of the Chief Justice 
in Eyre (q. v.). 
Court of King's (or Queen's) Bench. In English law, 
the supreme court of common law in the kingdom; 
merged in the Supreme Court by the Judicature Act, 
1873, § 6. It was one of the successors of the curia regis 
and received its name, it is said, because the king 
formerly sat in it in person. During the reign of a 
queen it was called the Queen's Bench, and during 
Cromwell's Protectorate it was called the Upper Bench. 
The Queen's Bench Division of the High Court is 
today one of three divisions of the High Court. The 
others are the Chancery Division and the Family Divi
sion. Its jurisdiction and composition are governed by 
the Supreme Court Act, 1981, §§ 4(4), 61(1). 
Court of last resort. Court which handles the final 
appeal on a matter; e.g., the U.S. Supreme Court for 
federal cases. 
358 
Court of law. In a wide sense, any duly constituted 
tribunal administering the laws of the state or nation; 
in a narrower sense, a court proceeding according to the 
course of the common law and governed by its rules and 
principles, as contrasted with a "court of equity (q. v.)." 
Court of Magistrates and Freeholders. The name of a 
court formerly established in South Carolina for the 
trial of slaves and free persons of color for criminal 
offenses. 
Court of Marshalsea /kort :;IV marsh:;llsiy /. In English 
law, the court or seat of the marshal. A court originally 
held before the steward and marshal of the king's house, 
instituted to administer justice between the king's do
mestic servants. It had jurisdiction of all trespasses 
committed within the verge of the king's court, where 
one of the parties was of the royal household; and of all 
debts and contracts, when both parties were of that 
establishment. It was abolished by 12 & 13, Vict., c. 
101, § 13 (1849). 
Court of Military Appeals. This court was established 
by Congress in 1950 (10 U.S.C.A. § 867). It is the 
primary civilian appellate tribunal responsible for re
viewing court-martial convictions of all the services. It 
is exclusively an appellate criminal court. The court, 
consisting of three civilian judges appointed by the pres
ident, is called upon to exercise jurisdiction as to ques
tions of law in all cases extending to death; questions 
certified to the court by the Judge Advocates General of 
the armed services, and by the general counsel of the 
Department of Transportation, acting for the Coast 
Guard; petitions by accused who have received a sen
tence of a year or more confinement, and/or a punitive 
discharge. Decisions of this court are subject to review 
by the Supreme Court by a writ of certiorari. The 
Supreme Court may not review by a writ of certiorari, 
however, any action of this court in refusing to grant a 
petition for review. 10 U.S.C.A. § 867(3)(h)(i). See also 
Courts of Mil itary Review. 
Court of Nisi Prius /kort :;IV naysay pray:;ls/. Though 
this term is frequently used as a general designation of 
any court exercising general, original jurisdiction in 
civil cases (being used interchangeably with "trial
court"), it belonged as a legal title only to a court which 
formerly existed in the city and county of Philadelphia, 
and which was presided over by one of the judges of the 
supreme court of Pennsylvania. This court was abol
ished by the constitution of 1874. See Assize; Courts of 
Assize and Nisi Prius; Nisi prius. 
Court of Ordinary. In Georgia such courts formerly 
had exclusive and general jurisdiction over probate of 
wills; granting letters testamentary, or of administra
tion, and revocation of same; management, disposition 
and distribution of estate of decedents, idiots, lunatics 
and insane persons and of all such other matters and 
things as appertain or relate to same; appointment and 
removal of guardians of minors and persons of unsound 
mind and all controversies as to right of guardianship; 
receiving and hearing applications for homestead and 
exemption and granting same; and concurrently with

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359 
judge of the county court, jurisdiction in binding out of 
orphans and apprentices, and all controversies between 
master and apprentice. The Probate Court now has 
jurisdiction over such matter. 
Court of Orphans Ikort ;)v 6rf;)nz/. In Maryland and 
Pennsylvania, a court, elsewhere known as a "Probate" 
or "Surrogates" court, with general jurisdiction over 
matters of probate and administration of estates, or
phans, wards, and guardians. 
Court of Oyer and Terminer Ikort ;)v 6y;)r �nd 
t:)rm;)n;)r/. In England, formerly, a court for the trial of 
cases of treason and felony. The commissioners of as
sise and nisi prius were judges selected by the king and 
appointed and authorized under the great seal, includ
ing usually two of the judges at Westminster, and sent 
out twice a year into most of the counties of England, for 
the trial (with a jury of the county) of causes then 
depending at Westminster, both civil and criminal. 
They sat by virtue of several commissions, each of 
which, in reality, constituted them a separate and dis
tinct court. The commission of oyer and terminer gave 
them authority for the trial of treasons and felonies; 
that of general gaol delivery empowers them to try every 
prisoner then in gaol for whatever offense, so that, 
altogether, they possessed full criminal jurisdiction. 
The assize courts have since been abolished and replaced 
by the Crown Court. 
In American law, this name was generally used (some
times, with additions) as the title, or part of the title, of 
a state court of criminal jurisdiction, or of the criminal 
branch of a court of general jurisdiction, being common
ly applied to such courts as may try felonies, or the 
higher grades of crime. Such courts existed in Dela
ware and Pennsylvania. They were abolished in New 
York and New Jersey in 1895. 
Court of Oyer and Terminer and General Gaol (or 
Jail) Delivery Ikort ;)v 6y;)r �nd t:)rm;)n;)r rend jen;)r;)l 
jeyl d;)liv;)riy/. In American law, formerly, a court of 
criminal jurisdiction in the state of Pennsylvania. It 
was held at the same time with the court of quarter 
sessions, as a general rule, and by the same judges. 
Pa.Const. art. 5, § 1. 
In English law, formerly a tribunal for the examina
tion and trial of criminals. Such jurisdiction is now in 
the Crown Court. 
Court of Palace at Westminster. In England, this 
court had jurisdiction of personal actions arising within 
twelve miles of the palace at Whitehall. Abolished by 
12 & 13, Viet., c. 101. See Court of the Steward and 
Marshal. 
Court of Passage. In England, an inferior court, pos
sessing a very ancient jurisdiction over causes of action 
arising within the borough of Liverpool. It appears to 
have been also called the "Borough Court of Liverpool." 
It had the same jurisdiction in admiralty matters as the 
Lancashire county court. Such court was abolished by 
the Courts Act of 1971. 
COURT OF PROBATE 
Court of Peculiars Ikort ;)v p;)kyuwly;)rz/. A spiritual 
court in England, being a branch of, and annexed to, the 
Court of Arches. It has a jurisdiction over all those 
parishes dispersed through the province of Canterbury, 
in the midst of other dioceses, which are exempt from 
the ordinary's jurisdiction, and subject to the metropoli
tan only. All ecclesiastical causes arising within these 
peculiar or exempt jurisdictions are originally cogniza
ble by this court, from which an appeal lies to the Court 
of Arches. Most of such courts have been abolished by 
legislation. See also Arches Court. 
Court of Piepoudre Ikort ;)v payp6wd;)r I. (Also spelled 
Pipowder, Pie Powder, Py-Powder, Piedpoudre, etc.) 
The lowest (and most expeditious) of the courts of justice 
known to the older law of England. It is supposed to 
have been so called from the dusty feet of the suitors. It 
was a court of record incident to every fair and market, 
was held by the steward, and had jurisdiction to admin
ister justice for all commercial injuries and minor of
fenses done in that same fair or market (not a preceding 
one). An appeal lay to the courts at Westminster. This 
court long ago fell into disuse. 3 Bl.Comm. 32. 
Court of Pleas. In England, a court of the county 
palatine of Durham, having a local common-law jurisdic
tion. It was abolished by the judicature act, which 
transferred its jurisdiction to the high court. 3 Bl. 
Comm. 79. 
Court of Policies of Assurance. In England, a court 
established by statute 43 Eliz., c. 12 (1601), to determine 
in a summary way all causes between merchants, con
cerning policies of insurance. The court was formally 
abolished by Stat. 26 & 27, Vict., c. 125 (1863). 3 
Bl.Comm. 74. 
Court of Private Land Claims. A federal court created 
by act of Congress in 1891 (26 Stat. 854), to hear and 
determine claims by private parties to lands within the 
public domain, where such claims originated under 
Spanish or Mexican grants, and had not already been 
confirmed by Congress or otherwise adjudicated. The 
existence and authority of this court were to cease and 
determine at the end of the year 1895. 
Court of Probate. A court existing in many states 
having jurisdiction over the probate of wills, the grant of 
administration, and the supervision of the management 
and settlement of the estates of decedents, including the 
collection of assets, the allowance of claims, and the 
distribution of the estate. In some states the probate 
courts also have jurisdiction over divorce, custody, adop
tion and change of name matters and of the estates of 
minors, including the appointment of guardians and the 
settlement of their accounts, and of the estates of luna
tics, habitual drunkards, and spendthrifts. And in some 
states these courts possess a limited jurisdiction in civil 
and criminal cases. They are also called in some juris
dictions "Orphans' courts" (e.g. Maryland, Pennsylvania) 
and "Surrogate's courts" (e.g. N.Y.). 
In England, the name of a court established in 1857, 
under the probate act of that year (20 & 21 Vict., c. 77), 
to be held in London, to which court was transferred the

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testamentary jurisdiction of the ecclesiastical courts. 
The probate court was merged in the Supreme Court of 
Judicature in 1873, and its jurisdiction is now split 
between the Chancery and Family divisions. 
Court of Protection. Court established in England to 
administer the property of mentally disabled persons, as 
defined in the Mental Health Act, 1983. 
Court of Pypowder, Py-Powder, or Py-Powders Ikort 
�v paypawd�r(z)/. See Court of Piepoudre. 
Court of Quarter Sessions of the Peace. Formerly, a 
court of criminal jurisdiction in the state of Pennsylva
nia, having power to try misdemeanors, and exercising 
certain functions of an administrative nature. 
Court of Queen's Bench. See Court of King's Bench. 
Court of Record. See Court, supra. 
Court of Regard. One of the forest courts, in England, 
held every third year, for the lawing or expeditation of 
dogs, to prevent them from running after deer. It has 
long since been obsolete. 3 Bl.Comm. 71, 72. 
Court of Sessions. Courts of criminal jurisdiction exist
ing in only a few states. 
Court of Shepway. In old English law, a court held 
before the lord warden of the Cinque Ports. A writ of 
error lay from the mayor and jurats of each port to the 
lord warden in this court, and thence to the queen's 
bench. The civil jurisdiction of the Cinque Ports was 
abolished by 18 & 19 Vict., c. 48. 
Court of Special Sessions. A generic term, applicable 
to those courts which have no stated terms and are not 
continuous, but which are organized only for the trial of 
each particular case and become functus officio when 
judgment is rendered therein. 
Court of Stannaries Ikort �v stren�riyz/. In English 
law, a court established in Devonshire and Cornwall, for 
the administration of justice among the miners and 
tinners, that they might not be drawn away from their 
business to attend suits in distant courts. The stannary 
court was a court of record, with a special jurisdiction. 
By the Stannaries Court (Abolition) Act of 1896 their 
jurisdiction was transferred to country courts. 
Court of Star Chamber. This was an English court of 
very ancient origin, but new-modeled by St. 3 Hen. VII, 
c. 1, and 21 Hen. VIII, c. 20, consisting of divers lords, 
spiritual and temporal, being privy councillors, together 
with two judges of the courts of common law, without 
the intervention of any jury. The jurisdiction extended 
legally over riots, perjury, misbehavior of sheriffs, and 
other misdemeanors contrary to the laws of the land; 
yet it was af terwards stretched to the asserting of all 
proclamations and orders of state, to the vindicating of 
illegal commissions and grants of monopolies; holding 
for honorable that which it pleased, and for just that 
which it profited, and becoming both a court of law to 
determine civil rights and a court of revenue to enrich 
the treasury. It was finally abolished by Car. I, c. 10, to 
360 
the general satisfaction of the Habeas Corpus Act of 
1640. 
Court of Survey. A court for the hearing of appeals by 
owners or masters of ships, from orders for the detention 
of unsafe ships, made by the English board of trade, 
under the Merchant Shipping Act, 1876, § 6. 
Court of Sweinmote Ikort �v sweynmowt/. (Spelled, 
also, Swainmot e, Swain-gemote.) Saxon, swang, an at
tendant, a freeholder, and mote or gemote, a meeting. 
In England, one of the old forest courts, held before the 
verderers, as judges, by the steward, thrice in every 
year, the sweins or freeholders within the forest compos
ing the jury. This court had jurisdiction to inquire into 
grievances and oppressions committed by the officers of 
the forest, and also to receive and try presentments 
certified from the court of attachments, certifying the 
cause, in turn, under the seals of the jury, in case of 
conviction, to the court of justice seat for the rendition 
of judgment. 
Court of the Chief Justice in Eyre. In England, the 
highest of the courts of the forest, held every three 
years, by the chief justice, to inquire of purprestures or 
encroachments, assarts, or cultivation of forest land, 
claims to franchises, parks, warrens, and vineyards in 
the forest, as well as claims of the hundred, claims to 
the goods of felons found in the forest, and any other 
civil questions that might arise within the forest limits. 
But it had no criminal jurisdiction, except of offenses 
against the forest laws. It was called also the court of 
justice seat. After the Restoration, the forest laws fell 
into disuse. The office was abolished in 1817. 
Court of the Clerk of the Market. An English court of 
inferior jurisdiction formerly held in every fair or mar
ket for the punishment of misdemeanors committed 
therein. The jurisdiction over weights and measures 
formerly exercised was taken away by Stat. 526 Will. IV, 
c. 63. 
Court of the Coroner. In England, formerly a court of 
record to inquire, when any one died in prison, or came 
to a violent or sudden death, by what manner he came 
to his end. 4 Bl.Comm. 274. Such functions are now 
performed by the coroner or by a coroner's inquest. See 
Coroner. 
Court of the Counties Palatine. In English law, a 
species of private court which formerly appertained to 
the counties palatine of Lancaster and Durham. 
Court of the Duchy of Lancaster. In England, a court 
of special jurisdiction, held before the chancellor of the 
duchy or his deputy, concerning all matters of equity 
relating to lands holden of the king in right of the duchy 
of Lancaster. 3 Bl.Comm. 78. Though not formerly 
abolished, such court has not sat since 1835. 
Court of the Earl Marshal. In the reign of William the 
Conqueror the marshal was next in rank to the con
stable, in command of the army. When the constable's 
office ceased, his duties devolved upon the earl marshal. 
The military Court of the Constable came to be known 
as the Marshal's Court, or, in its modern form, Court-

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361 
Martial. Aside from its criminal jurisdiction, it had 
much to do with questions relating to fiefs and military 
tenures, though not to property rights involved therein. 
See Constable; Court of Chivalry; Court-Martial. 
Court of the Lord High Admiral. In the earlier part of 
the 14th century, the Admiral possessed a disciplinary 
jurisdiction over his fleet. After 1340 it is reasonable to 
suppose that the Admiral could hold an independent 
court and administer justice in piracy and other mari
time cases. There were at first several admirals and 
several courts. From the early 15th century there was 
one Lord High Admiral and one Court of Admiralty. 
Court of the Lord High Steward. In English law, a 
court formerly instituted for the trial, during the recess 
of parliament, of peers indicted for treason or felony, or 
for misprision of either. This court was not a perma
nent body, but was created when occasion required and 
for the time being, only; and the lord high steward, so 
constituted, with such of the temporal lords as may take 
the proper oath, and act, constituted the court. Privi
lege of peerage was abolished by Sec. 30 of the Criminal 
Justice Act of 1948. 
Court of the Lord High Steward of the Universities. 
In English law, a court constituted for the trial of 
scholars or privileged persons connected with the univ
ersity at Oxford or Cambridge who were indicted for 
treason, felony, or mayhem. 3 Bl.Comm. 83. 
Court of the Official Principal. This court, the Court 
of the "Official Principal" of the Archbishop of Canter
bury, is more commonly called the Arches Court, or 
Court of the Arches. See Arches Court. 
Court of the Steward and Marshal. A high court, 
formerly held in England by the steward and marshal of 
the king's household, having jurisdiction of all actions 
against the king's peace within the bounds of the house
hold for twelve miles, which circuit was called the 
"verge." It had also jurisdiction of actions of debt and 
covenant, where both the parties were of the household. 
This court was created by Charles I, and abolished in 
1849. It was held in the borough of Southwark, and was 
called also the "palace court," having jurisdiction of all 
personal actions arising within twelve miles of the royal 
palace of Whitehall, exclusive of London. 
Court of the Steward of the King's Household. In 
English law, a court which had jurisdiction of all cases 
of treason, misprision of treason, murder, manslaughter, 
bloodshed, and other malicious strikings whereby blood 
is shed, occurring in or within the limits of any of the 
palaces or houses of the king, or any other house where 
the royal person is abiding. It was created by statute 33 
Hen. VIII, c. 12, but repealed by the Statute Law Revi
sion Act of 1948. 4 Bl.Comm. 276, 277. 
Court of Veterans Appeals. The U.S. Court of Veter
ans Appeals is an Article I court created in 1988 to 
review decisions of the Board of Veterans' Appeals. 
Appeals from this Court are to the U.S. Court of Appeals 
for the Federal Circuit. 38 U.S.C.A. § 4051 et seq. 
COURTS OF APPEALS, U. S. 
Court of Wards and Liveries. A court of record, estab
lished in England in the reign of Henry VIII. For the 
survey and management of the valuable fruits of tenure, 
a court of record was created by St. 32 Hen. VIII, c. 46, 
called the "Court of the King's Wards." To this was 
annexed, by St. 33 Hen. VIII, c. 22, the "Court of 
Liveries;" so that it then became the "Court of Wards 
and Liveries." This court was not only for the manage
ment of "wards," properly so called, but also of idiots 
and natural fools in the king's custody, and for licenses 
to be granted to the king's widows to marry, and fines to 
be made for marrying without his license. It was abol
ished by St. 12 Car. II, c. 24. 
Court packing plan. An attempt by President F. D. 
Roosevelt in 1937 to replace those justices of the U.S. 
Supreme Court who did not subscribe to his social phi
losophy with men whose views were consonant with his. 
Court record. See Record. 
Court reporter. A person who transcribes by short
hand, stenographically takes down, or electronically 
records testimony during court proceedings, or at trial 
related proceedings such as depositions. If an appeal is 
to be taken wherein an official record is required, the 
reporter prepares an official transcript from his or her 
record. A reporter may also constitute the person re
sponsible for publication of the opinions of the court; 
sometimes called "Reporter of Decisions". 
Court rolls. In England, the rolls of a manor, contain
ing all acts relating thereto. While belonging to the 
lord of the manor, they are not in the nature of public 
books for the benefit of the tenant. Under the law of 
Property Act of 1922 copyholds became freeholds and 
manorial rights were extinguished subject to the provi
sions therein contained. 
Court room. That portion of a courthouse in which the 
actual proceedings (i.e. trial, motions, etc.) take place. 
Compare Chamber. 
Court rule. Regulations with the force of law governing 
practice and procedure in the various courts. They may 
cover all procedures in a trial court system (e.g. Federal 
Rules of Civil and Criminal Procedure), or govern only 
procedures before a specific court (e.g. U.S. Supreme 
Court Rules), or only certain aspects of procedure (e.g. 
Federal Rules of Evidence), or they may be so called 
housekeeping rules which govern internal court practic
es and procedures. Most states have adopted in whole, 
or substantially, rules patterned on the Federal Rules of 
Civil Procedure to govern civil cases. Also, a growing 
number of states have adopted Rules of Criminal Proce
dure and Rules of Appellate Procedure modeled after 
the Federal Rules of Criminal and Appellate Procedure. 
In addition, a number of states have adopted Rules of 
Evidence patterned on the Federal Rules of Evidence. 
Courts martial. See Court-Martial. 
Courts of Appeals, U. S. Intermediate appellate courts 
created by Congress in 1891 and known until 1948 as 
United States Circuit Courts of Appeals, sitting in elev
en numbered circuits, the District of Columbia, and the

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COURTS OF APPEALS, U. S. 
Court of Appeals for the Federal Circuit. Normally 
cases are heard by divisions of three judges sitting 
together, but on certain matters all the judges of a 
circuit may hear a case. Courts of Appeals have appel
late jurisdiction over most cases decided by United 
States District Courts and review and enforce orders of 
many federal administrative bodies. The decisions of 
the courts of appeals are final except as they are subject 
to discretionary review on appeal by the Supreme Court. 
28 U.S.C.A. §§ 41, 43, 1291. See also Tempor ary Emer
gency Court of Appeals. 
Co urt of Appeals fo r the Federal Circuit. Federal court, 
established in 1982, with appellate jurisdiction over ac
tions arising under the laws relating to patents, plant 
variety protection, copyrights, trademarks, contract and 
property claims against the United States, appeals from 
the United States Claims Court, Patent and Trademark 
Off ice, the United States Court of International Trade, 
the Merit Systems Protection Board, the Court of Veter
ans Appeals, as well as appeals under the Plant Variety 
Protection Act, the Contract Disputes Act, decisions by 
the United States International Trade Commission re
lating to unfair import practices, and decisions by the 
Secretary of Commerce relating to import tariffs. 28 
U.S.C.A. § 1295. 
Courts of Assize and Nisi Prius /korts ;}v ;}sayz rend 
naysay pray;}s/. Courts in England composed of two or 
more commissioners, called "judges of assize" (or of 
"assize and nisi prius"), who were twice in every year 
sent by the king's special commission, on circuits all 
round the kingdom, to try, by a jury of the respective 
counties, the truth of such matters of fact as were there 
under dispute in the courts of Westminster Hall. With 
the establishment of the Crown Court (1971), these 
courts were abolished. 
Courts of Military Review. These intermediate appel
late criminal courts, formerly constituted as Boards of 
Review, were established by the Military Justice Act of 
1968 (10 U .S.C.A. § 866) to review court-martial convic
tions of their respective services. These courts are oper
ated by the Army, Air Force, Navy/Marine Corps and 
the Coast Guard. Each court has one or more panels 
and each panel is composed of at least three appellate 
military judges. The court may sit in panels or en banco 
The courts possess independent fact-finding powers and 
may weigh evidence, judge witness credibility, and deter
mine controverted questions of fact, giving due defer
ence to the findings of the trial court. The court re
views cases in which the punishment imposed extends to 
death, dismissal or punitive discharge, or confinement 
for one year or more, except when the service member 
voluntarily waives the right to appeaL The court also 
possesses extraordinary writs power. Its opinions are 
subject to review by the United States Court of Military 
Appeals. See Court of Mili tary Appeals. 
Courts of record. Those courts whose proceedings are 
permanently recorded, and which have the power to fine 
or imprison for contempt. 
362 
Courts of Request. Inferior courts, in England, having 
local jurisdiction in claims for small debts, established in 
various parts of the kingdom by special acts of par
liament. They were superseded in 1846 by the county 
courts. 
Courts of the Forest. Courts held for the enforcement 
of the forest laws. See Forest courts. 
Courts of the Franchises. Jurisdictions in the early 
Norman period which rested upon royal grants-often 
assumed. Edward I, in 1274, sent out commissioners to 
enquire by what warrant different landowners were 
exercising their jura regalia. There were many varie
ties of lesser franchises. Some of these franchises were 
recognized as existing by the County Courts Acts, 1846-
1888. 
Courts of the United States. "Court of the United 
States" includes the Supreme Court of the United 
States, courts of appeals, district courts, Court of Inter
national Trade, and any court created by Act of Con
gress the judges of which are entitled to hold office 
during good behavior. 28 U.S.C.A. § 451. Also, the 
senate sitting as a court of impeachment. 
Courts of Westminster Hall. The superior courts, both 
of law and equity, were for centuries fixed at Westmin
ster, an ancient palace of the monarchs of England. 
Formerly, all the superior courts were held before the 
king's capital justiciary of England, in the aula regis, or 
such of his palaces wherein his royal person resided, and 
removed with his household from one end of the king
dom to another. This was found to occasion great 
inconvenience to the suitors to remedy which it was 
made an article of the great charter of liberties, both of 
King John and King Henry III, that "common pleas 
should no longer follow the king's court, but be held in 
some certain place," in consequence of which they have 
ever since been held (a few necessary removals in times 
of the plague excepted) in the palace of Westminster 
only. 
Court system. The network of courts in a particular 
jurisdiction; e.g. trial, appellate, juvenile, land, etc., 
courts. 
Courtyard. A corrupted form of "curtilage", signifying 
a space of land about a dwelling house, which not only 
might be inclosed, but within which appurtenant build
ings and structures might be erected. 
Cousin /k�z:m/. Kindred in the fourth degree, being the 
issue (male or female) of the brother or sister of one's 
father or mother. 
Those who descend from the brother or sister of the 
father of the person spoken of are called "paternal 
cousins", "maternal cousins" are those who are descend
ed from the brothers or sisters of the mother. Cousins
german are first cousins. 
First cousins. Cousins-german; the children of one's 
uncle or aunt. 
Quarter cousin. Properly, a cousin in the fourth degree; 
but the term has come to express any remote degree of

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363 
relationship, and even to bear an ironical signification 
in which it denotes a very trifling degree of intimacy 
and regard. Often corrupted into "cater" cousin. 
Second cousins. Persons who are related to each other 
by descending from the same great-grandfather or great
grandmother. The children of one's first cousins are his 
second cousins. These are sometimes called "first cous
ins once removed." 
Cousinage. See Cosenage. 
Coustom. (Fr. Coutum.) Custom; duty; toll; tribute. 
See Custom and usage. 
Coustoumier Ikuwt(y)um(i)yey/. (Otherwise spelled 
"Coustumier" or "Coutum ier.") In old French law, a 
collection of customs, unwritten laws, and forms of pro
cedure. Two such volumes are of especial importance in 
juridical history, viz., the Grand Co ustumier de No rman
die, and the Co utumier de France or Grand Co utumi er. 
Couthutlaugh IkuwO;}tlO i. A person who willingly and 
knowingly received an outlaw, and cherished or con
cealed him; for which offense he underwent the same 
punishment as the outlaw himself. 
Couverture Ikuwvertyur/. In French law, the deposit 
("margin") made by the client in the hands of the 
broker, either of a sum of money or of securities, in 
order to guaranty the broker for the payment of the 
securities which he purchases for the client. 
Covenable Ik;)v;}n;}b;}l/kon;}b;}l/. A French word signify
ing convenient or suitable; as convenably endowed. An
ciently written "convenab le." 
Covenant Ik;)v;}n;}nt/. An agreement, convention, or 
promise of two or more parties, by deed in writing, 
signed, and delivered, by which either of the parties 
pledges himself to the other that something is either 
done, or shall be done, or shall not be done, or stipulates 
for the truth of certain facts. At common law, such 
agreements were required to be under seaL The term is 
currently used primarily with respect to promises in 
conveyances or other instruments relating to real estate. 
In its broadest usage, means any agreement or con
tract. 
The name of a common-law form of action ex contrac
tu, which lies for the recovery of damages for breach of a 
covenant, or contract under seaL 
General Classification 
Covenants may be classified according to several dis
tinct principles of division: 
Absolute or conditional. An absolute covenant is one 
which is not qualified or limited by any condition. 
Affirmative or negative. The former are those in which 
the party binds himself to the existence of a present 
state of facts as represented or to the future perform
ance of some act; while the latter are those in which the 
covenantor obliges himself not to do or perform some 
act. 
COVENANT 
An "affirmative covenant" is an agreement whereby 
the covenantor undertakes that something shall be 
done. City of New York v. Turnpike Development 
Corp., 36 Misc.2d 704, 233 N.Y.S.2d 887, 891, 892. 
Declaratory or obli gatory. The former are those which 
serve to limit or direct uses; while the latter are those 
which are binding on the party himself. 
Dependent, concurrent, and independent. Covenants are 
either dependent, concurrent, or mutual and indepen
dent. The first depends on the prior performance of 
some act or condition, and, until the condition is per
formed, the other party is not liable to an action on his 
covenant. In the second, mutual acts are to be per
formed at the same time; and if one party is ready, and 
offers to perform his part, and the other neglects or 
refuses to perform his, he who is ready and offers has 
fulfilled his engagement, and may maintain an action 
for the default of the other, though it is not certain that 
either is obliged to do the first act. The third sort is 
where either party may recover damages from the other 
for the injuries he may have received by a breach of the 
covenants in his favor; and it is no excuse for the 
defendant to allege a breach of the covenants on the 
part of the plaintiff. Mutual and independent cove
nants are such as do not go to the whole consideration 
on both sides, but only to a part, and where separate 
actions lie for breaches on either side to recover dam
ages for the injury sustained by breach. 
Covenants are dependent where performance by one 
party is conditioned on and subject to performance by 
the other, and in such case the party who seeks perform
ance must show performance or a tender or readiness to 
perform on his part; but covenants are independent 
when actual performance of one is not dependent on 
another, and where, in consequence, the remedy of both 
sides is by action. 
Disjunctive covenants. Those which are for the perform� 
ance of one or more of several things at the election of 
the covenantor or covenantee, as the case may be. 
Executed or execu tory. The former being such as relate 
to an act already performed; while the latter are those 
whose performance is to be future. 
Express or implied. The former being those which are 
created by the express words of the parties to the deed 
declaratory of their intention, while implied covenants 
are those which are inferred by the law from certain 
words in a deed which imply (though they do not ex
press) them. An implied covenant is one which may 
reasonably be inferred from whole agreement and cir
cumstances attending its execution. Anderson v. Britt, 
Ky., 375 S.W.2d 258, 260. Express covenants are also 
called covenants "in deed," as distinguished from cove
nants "in law." 
General or specific. The former relate to land generally 
and place the covenantee in the position of a specialty 
creditor only; the latter relate to particular lands and 
give the covenantee a lien thereon.

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COVENANT 
Inherent and collateral. The former being such as im
mediately affect the particular property, while the latter 
affect some property collateral thereto or some matter 
collateral to the grant or lease. A covenant inherent is 
one which is conversant about the land, and knit to the 
estate in the land; as, that the thing demised shall be 
quietly enjoyed, shall be kept in repair, or shall not be 
aliened. A covenant collateral is one which is conver
sant about some collateral thing that doth nothing at 
all, or not so immediately, concern the thing granted; as 
to pay a sum of money in gross, etc. 
Jo int or several. The former bind both or all the cove
nantors together; the latter bind each of them separate
ly. A covenant may be both joint and several at the 
same time, as regards the covenantors; but, as regards 
the covenantees, they cannot be joint and several for one 
and the same cause, but must be either joint or several 
only. Covenants are usually joint or several according 
as the interests of the covenantees are such; but the 
words of the covenant, where they are unambiguous, 
will decide, although, where they are ambiguous the 
nature of the interests as being joint or several is left to 
decide. 
Principal and auxiliary. The former being those which 
relate directly to the principal matter of the contract 
entered into between the parties; while auxiliary cove
nants are those which do not relate directly to the 
principal matter of contract between the parties, but to 
something connected with it. 
Real. A real covenant is one which binds the heirs of 
the covenantor and passes to assignees or purchasers; a 
covenant the obligation of which is so connected with 
the realty that he who has the latter is either entitled to 
the benefit of it or is liable to perform it; a covenant 
which has for its object something annexed to, or inher
ent in, or connected with, land or other real property, 
and runs with the land, so that the grantee of the land 
is invested with it and may sue upon it for a breach 
happening in his time. 
Transitive or intransitive. The former being those per
sonal covenants the duty of performing which passes 
over to the representatives of the covenantor; while the 
latter are those the duty of performing which is limited 
to the covenantor himself, and does not pass over to his 
representative. 
Other Compound and Descriptive Terms 
Co ntinu ing covenant. One which indicates or necessar
ily implies the doing of stipulated acts successively or as 
often as the occasion may require; as, a covenant to pay 
rent by installments, to keep the premises in repair or 
insured, to cultivate land, etc. 
Full covenants. As this term is commonly used, it 
includes: covenants for seisin, for right to convey, 
against incumbrances, for quiet enjoyment, sometimes 
for further assurance, and almost always of warranty, 
this last often taking the place of the covenant for quiet 
enjoyment, and indeed in many states being the only 
covenant in practical use. 
364 
Restrictive covenant. See that title. 
Separate covenant. A several covenant; one which 
binds the several covenantors each for himself, but not 
jointly. 
Usual covenants. An agreement on the part of a seller 
of real property to give the usual covenants binds him to 
insert in the grant covenants of "seisin," "quiet enjoy
ment," "further assurance," "general warranty," "right 
to convey," and "against incumbrances." Collectively 
they are called covenants for title to distinguish them 
from restrictive covenants. See Co venants fo r title, be
low. 
Specific Covenants 
Co venants against incumbrances. A covenant that there 
are no incumbrances on the land conveyed. A stipula
tion against all rights to or interests in the land which 
may subsist in third persons to the diminution of the 
value of the estate granted. 
Co venant appurtenant. A covenant which is connected 
with land of the grantor, and not in gross. A covenant 
running with the land and binding heirs, executors and 
assigns of the immediate parties. 
Co venant fo r further assurance. An undertaking, in the 
form of a covenant, on the part of the vendor of real 
estate to do such further acts for the purpose of perfect
ing the purchaser's title as the latter may reasonably 
require. This covenant is deemed of great importance, 
since it relates both to the vendor's title of and to the 
instrument of conveyance to the vendee, and operates as 
well to secure the performance of all acts necessary for 
supplying any defect in the former as to remove all 
objections to the sufficiency and security of the latter. 
Co venant fo r possess ion. A covenant by which the 
grantee or lessee is granted possession. 
Co venant fo r quiet enjoyment. An assurance against the 
consequences of a defective title, and of any disturbances 
thereupon. A promise by the landlord or grantor that 
the tenant or grantee will not be evicted or disturbed by 
the grantor or a person having a lien or superior title. 
Co venants for title. Covenants usually inserted in a 
conveyance of land, on the part of the grantor, and 
binding him for the completeness, security, and continu
ance of the title transferred to the grantee. They com
prise covenants for seisin, for right to convey, against 
incumbrances, or quiet enjoyment, sometimes for fur
ther assurance, and almost always of warranty. 
Co venant in gross. Such as do not run with the land. 
Co venant not to compete. An agreement, generally part 
of a contract of employment or a contract to sell a 
business, in which the covenantor agrees for a specific 
period of time and within a particular area to refrain 
from competition with the covenantee. Such covenant 
restrictions must be reasonable in scope and duration or 
backed by adequate consideration. 
Co venant not to sue. A covenant by one who has a right 
of action at the time of making it against another

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365 
person, by which he agrees not to sue to enforce such 
right of action. Such covenant does not extinguish a 
cause of action and does not release other joint tort-fea
sors even if it does not specifically reserve rights against 
them. Van Cleave v. Gamboni Const. Co., 665 P.2d 250, 
252, 99 Nev. 544. 
Co venant of non-claim. A covenant formerly sometimes 
employed, particularly in the New England states, and 
in deeds of extinguishment of ground rents in Pennsyl
vania, that neither the vendor, nor his heirs, nor any 
other person, etc., shall claim any title in the premises 
conveyed. 
Co venant of right to con vey. An assurance by the cove
nantor that the grantor has sufficient capacity and title 
to convey the estate which he by his deed undertakes to 
convey. 
Co venant of seisin. An assurance to the purchaser that 
the grantor has the very estate in quantity and quality 
which he purports to convey. 
Co venant of warranty. An assurance by the grantor of 
an estate that the grantee shall enjoy the same without 
interruption by virtue of paramount title. 
Co venant running with land. A covenant which goes 
with the land, as being annexed to the estate, and which 
cannot be separated from the land, and transferred 
without it. A covenant is said to run with the land, 
when not only the original parties or their representa
tives, but each successive owner of the land, will be 
entitled to its benefit, or be liable (as the case may be) to 
its obligation. Or, in other words, it is so called when 
either the liability to perform it or the right to take 
advantage of it passes to the assignee of the land. One 
which touches and concerns the land itself, so that its 
benefit or obligation passes with the ownership. Local 
Federal Savings & Loan Ass'n of Oklahoma City v. 
Eckroat, 186 Okl. 660, 100 P.2d 261, 262. Essentials of 
such a covenant are that the grantor and grantee must 
have intended that the covenant run with the land, the 
covenant must affect or concern the land with which it 
runs, and there must be privity of estate between party 
claiming the benefit and the party who rests under the 
burden. Greenspan v. Rehberg, 56 Mich.App. 310, 224 
N.W.2d 67, 73. 
Co venant running with title. A covenant which goes 
with the title. Stipulation in a lease granting to lessee 
the option of renewing it for another specified period is 
such a covenant. See also Co venants fo r title, above. 
Co venant to con vey. A covenant by which the covenan
tor agrees to convey to the covenantee a certain estate, 
under certain circumstances. 
Co venant to renew. An executory contract, giving lessee 
the right to renew on compliance with the terms speci
fied in the renewal clause, if any, or, if none, on giving 
notice, prior to termination of the lease, of his desire to 
renew, whereupon the contract becomes executed as to 
him. 
Co venant to stand seised. A conveyance adapted to the 
case where a person seised of land in possession, rever-
COVERT 
sion, or vested remainder, proposes to convey it to his 
wife, child, or kinsman. In its terms it consists of a 
covenant by him, in consideration of his natural love 
and affection, to stand seised of the land to the use of 
the intended transferee. Before the statute of uses this 
would merely have raised a use in favor of the covenan
tee; but by that act this use is converted into the legal 
estate, and the covenant therefore operates as a convey
ance of the land to the covenantee. It is now almost 
obsolete. 
Covenantee /k�v:m;)ntiy /. The party to whom a cove
nant is made. 
Covenantor /k�v;)n;)nt;)r/. The party who makes a cove
nant. 
Covent. A contraction, in the old books, of the word 
"convent." 
Coventry Act. The name given to the statute 22 & 23 
Car. II, c. 1, which provided for the punishment of 
assaults with intent to maim or disfigure a person. It 
was so named from its being occasioned by an assault on 
Sir John Coventry in the street as was supposed, for 
some obnoxious words uttered by him in parliament. 4 
BI.Comm. 207. 
Cover. To protect by means of insurance; sometimes 
orally pending issuance of policy. See also Binder; Cov
er note. 
The right of a buyer, after breach by a seller, to 
purchase goods in open market in substitution for those 
due from the seller if such purchase is made in good 
faith and without unreasonable delay. The buyer may 
then recover as damages the difference between the cost 
of cover and the contract price plus any incidental and 
consequential damages but less expenses saved in conse
quence of the seller's breach. V.C.C. § 2-7 12(1), (2). 
Coverage. In insurance, amount and extent of risk 
contractually covered by insurer. The assumption of 
risk of occurrence of the event insured against before its 
occurrence. Continental Ins. Co. v. Paccar, Inc., 26 
Wash. App. 850, 614 P.2d 675, 684. 
Aut omatic cov erage. In insurance, coverage of addition
al property or for other perils by an existing contract 
without specific request by the insured. 
Cover-all clause. A provision in a document which 
purportedly embraces all eventualities of which the par
ties are aware as possibilities. 
Cover into. The phrase "covered into the treasury," as 
used in acts of Congress and the practice of the V nited 
States Treasury Department, means that money has 
actually been paid into the treasury in the regular 
manner, as distinguished from merely depositing it with 
the treasurer. V. S. v. Johnston, 124 V.S. 236, 8 S.Ct. 
446, 31 L.Ed. 389. 
Cover note. Written statement by insurance agent that 
coverage is in effect. Distinguished from binder which 
is prepared by company. See Binder. 
Covert /k�v;)rt/. Covered, protected, sheltered. A cov
ert act is a concealed, not apparent act.

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COVERT BARON 
Covert baron, or covert de baron Ik�v;:}rt (d;:}) brer;:}n/. 
Under the protection of a husband; married. La feme 
que est covert de baron, the woman which is covert of a 
husband. 
Coverture Ik�v;:}rch;:}r/. The condition or state of a 
married woman. Sometimes used elliptically to describe 
the legal disability which formerly existed at common 
law from a state of coverture whereby the wife could not 
own property free from the husband's claim or control. 
Such restrictions were removed by state Married Wom
an's Property Acts. 
Cover-up. To conceal. As a crime, the act of concealing 
or hiding something wrong or criminal. See also Harbor; 
Misprision of felony. 
Covin Ik�v;:}n/. A secret conspiracy or agreement be
tween two or more persons to injure or defraud another. 
Covinous Ik�v;:}n;:}s/. Deceitful; fraudulent; having the 
nature of, or tainted by covin. 
Cowardice. Pusillanimity; fear; misbehavior through 
fear in relation to some duty to be performed. 
C.P. An abbreviation for common pleas. 
C.P.A. Certified Public Accountant. 
C.R. An abbreviation for curia regis; also for chancery 
reports. 
Craft. Generally, any boat, ship or vessel. 
A trade or occupation of the sort requiring skill and 
training, particularly manual skill combined with a 
knowledge of the principles of the art. Also the body of 
persons pursuing such a calling; a guild. 
Guile, artful cunning, trickiness. Not a legal term in 
this sense, though often used in connection with such 
terms as "fraud" and "artifice." 
Craft union. A labor union all of whose members do the 
same kind of work (i.e. trade) such as plumbing or 
carpentry for different employers and industries. 
Cram down. In bankruptcy, colloquial expression that 
describes court confirmation of a Bankruptcy Code 
Chapter 11, 12 or 13 plan, notwithstanding creditor 
opposition. Matter of U.S. Truck Co., Inc., Bkrtcy.Mich., 
47 B.R. 932, 935. 
Cranage. A liberty to use a crane for drawing up goods 
and wares of burden from ships and vessels, at any 
creek of the sea, or wharf, unto the land, and to make a 
profit of doing so. It also signifies the money paid and 
taken for the service. 
Crank. A term vulgarly applied to a person of eccentric, 
ill-regulated, and unpractical mental habits; an ill-tem
pered person. 
Crashworthiness. Doctrine which imposes liability 
upon a manufacturer in a vehicular collision case for 
design defects which do not cause the initial accident 
but which cause additional or more severe injuries when 
the driver or passenger subsequently impacts with the 
defective interior or exterior of the vehicle. Sumnicht v. 
366 
Toyota Motor Sales, U.S.A. Inc., 121 Wis.2d 338, 360 
N.W.2d 2, 6. 
Crassus Ikrres;:}s/. Large; gross; excessive; extreme. 
Crassa ignorantia Ikrres;:} ign;:}rrensh(iy);:}1 gross igno
rance. 
Crassa negligentia Ikrres;:} negl;:}jensh(iy);:}/. Gross ne
glect; absence of ordinary care and diligence. 
Crastino Ikrrest;:}now I. Lat. On the morrow, the day 
after. In old English law, the return-day of writs; be
cause the first day of the term was always some saint's 
day, and writs were returnable on the day after. 
Crave. To ask or demand; as to crave oyer. See Oyer. 
Craven Ikreyv;:}n/. In old English law, a word of dis
grace and obloquy, pronounced on either champion, in 
the ancient trial by battle, proving recreant, i.e., yield
ing. 
Creamer. A foreign merchant, but generally taken for 
one who has a stall in a fair or market. 
Creamus Ikriyeym;:}s/. Lat. We create. One of the 
words by which a corporation in England was formerly 
created by the king. 1 Bl.Comm. 473. 
Creance Ikreyons/. In French law, a claim; a debt; also 
belief, credit, faith. 
Creancer Ikriy;:}ns;:}r/. In French law, one who trusts or 
gives credit; a creditor. 
Creansor Ikriy;:}ns;:}r/. A creditor. 
Create. To bring into being; to cause to exist; to pro
duce; as, to create a trust, to create a corporation. 
Created. In copyright law, a work is "created" when it 
is fixed in a copy or phonorecord, for the first time; 
where a work is prepared over a period of time, the 
portion of it that has been fixed at any particular time 
constitutes the work as of that time, and where the work 
has been prepared in different versions, each version 
constitutes a separate work. Copyright Act, 17 U.S.C.A. 
§ 1OI. 
Credentials Ikr;:}densh;:}lz/. Documentary evidence of a 
person's authority; commonly in the form of letters, 
licenses or certificates which on their face indicate the 
authority and capacity of the bearer. 
Credibility. Worthiness of belief; that quality in a 
witness which renders his evidence worthy of belief. 
After the competence of a witness is allowed, the consid
eration of his credibility arises, and not before. As to 
the distinction between competency and credibility, see 
Competency. See also Character; Reputation. 
Credible. Worthy of belief; entitled to credit. See Com
petency; Character; Reputation. 
Credible evidence. Evidence to be worthy of credit must 
not only proceed from a credible source but must, in 
addition, be "credible" in itself, by which is meant that 
it shall be so natural, reasonable and probable in view of 
the transaction which it describes or to which it relates 
as to make it easy to believe it, and credible testimony is

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367 
that which meets the test of plausibility. Indiana Metal 
Products v. N.L.R.B., C.A.Ind., 442 F.2d 46, 52. 
Credible person. One who is trustworthy and entitled to 
be believed. In law and legal proceedings, one who is 
entitled to have his oath or affidavit accepted as reli
able, not only on account of his good reputation for 
veracity, but also on account of his intelligence, knowl
edge of the circumstances, and disinterested relation to 
the matter in question. Also one who is competent to 
testify. Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 
1019, 1020. 
Credible witness. One who is competent to give testimo
ny in court; also one who is worthy of belief. Burleson 
v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020. See 
Credibility. 
Credibly informed. The statement in a pleading or 
affidavit, that one is "credibly informed and verily be
lieves" such and such facts, means that, having no direct 
personal knowledge of the matter in question, he has 
derived his information in regard to it from authentic 
sources or from the statements of persons who are not 
only "credible," in the sense of being trustworthy, but 
also informed as to the particular matter or conversant 
with it. 
Credit. The ability of a business or person to borrow 
money, or obtain goods on time, in consequence of the 
favorable opinion held by the particular lender as to 
solvency and past history of reliability. In re Ford, 
D.C.Wash., 14 F.2d 848, 849. Confidence in buyer's 
ability to meet financial obligations at some future time. 
Time allowed to the buyer of goods by the seller, in 
which to make payment for them. The correlative of a 
debt; that is, a debt considered from the creditor's 
standpoint, or that which is incoming or due to one. 
That which is due to a person, as distinguished from 
debit, that which is due by him. Claim or cause of 
action for specific sum of money. 
Availability of funds from financial institution or 
from letter of credit. 
"Credit" means the right granted by a creditor to a 
debtor to defer payment of debt or to incur debt and 
defer its payment. Uniform Consumer Credit Code, 
Section 1.301(7). 
In accounting, a credit is a component of a journal 
entry which increases revenues, liabilities, and equity; 
and decreases assets and expenses. 
In taxation, credits reduce the tax liability as comput
ed, as opposed to deductions which reduce the taxable 
income. Examples of tax eredits include; credit for 
child and dependent care expenses, credit for the elderly 
or permanently disabled, etc. 
See also Confirmed credit; Credit line; Fair Credit Re
porting Acts; Installment credit; Investment tax credit; 
Letter of credit; Notation credit; Open credit; Open-end 
credit; Revocable credit; Revolving credit; Tax credit. 
Compare Debit. 
Bank credit. Money that bank owes or will lend individ
ual or person. 
CREDIT INSURANCE 
Bill of credit. See Bill. 
Co nsumer credit. See Consumer credit; Consumer Credit 
Code; Consumer Credit Protection Act; Consumer credit 
sale; Consumer credit transaction; Credit card; Equal 
Credit Opportunity Act; Fair Credit Bill ing Act; Fair Credit 
Reporting Acts; Truth-in-Iending Act. 
Credit insurance. See Credit insurance. 
Extortionate credit. See Extortion; Loansharking. 
Line of credit. See Credit line; Line. 
Open credit. See Open credit; Open-end credit. 
Secured credit. See Secured transaction. 
Credit advertising. An advertisement which aids, pro
motes or assists directly or indirectly the extension of 
credit. Federal and state statutes regulate such adver
tising. 
Credit balance. In accounting, the status of an account 
when the sum of the credit entries exceeds the sum of 
the debit entries. 
Credit bureau. Establishinents which make a business 
of collecting information relating to the credit, charac
ter, responsibility and reputation of individuals and 
businesses, for the purpose of furnishing the information 
(i.e. credit reports) to subscribers (i.e. merchants, banks, 
suppliers, etc.). Practices of credit bureaus are regulat
ed by federal (e.g. Fair Credit Reporting Act) and often 
state statutes. See also Credit rating; Credit report. 
Credit card. Any card, plate, or other like credit device 
existing for the purpose of obtaining money, property, 
labor or services on credit. The term does not include a 
note, check, draft, money order pr other like negotiable 
instrument. Federal (e.g. Consumer Credit Protection 
Act) and often state statutes regulate the issuance and 
use of credit cards. 
Credit card crime. A person commits an offense if he 
uses a credit card for the purpose of obtaining property 
or services with knowledge that: (1) the card is stolen or 
forged; or (2) the. card has been revoked or cancelled; or 
(3) for any other reason his use of the card is unautho
rized. Model Penal Code, § 224.6. 
Credit disclosure. See Annual percentage rate; Consum
er Credit Protection Act; Truth-in-Lending Act. 
Credited. The alternative to paid. Lynchburg Trust & 
Savings Bank v. Commissioner of Internal Revenue, 
C.C.A.4, 68 F.2d 356, 358. 
Credit foncier Ikreydiy fonsyey I. A company or corpo
ration formed for the purpose of carrying out improve
ments, by means of loans and advances on real estate 
security. 
Credit insurance. A contract whereby the insurer 
promises, in consideration of a premium paid, and sub
ject to specified conditions as to the persons to whom 
credit is to be extended, to indemnify the insured, whol
ly or in part, against loss that may result from the 
death, disability, or insolvency of persons to whom he 
may extend credit within the term of the insurance.

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CREDIT INSURANCE 
The requirement of such, as well as the full disclosure of 
the terms and cost, is regulated by federal and state 
consumer protection statutes. 
Credit life, accident, and health insurance. Term insur
ance on lives of debtors, with the creditors of the insured 
debtor as beneficiary. The amount payable on death of 
insured debtor is an amount at least sufficient to dis
charge debtor's indebtedness; and in event of total per
manent disability an amount is payable which is at least 
sufficient to meet installment payments on debtor's in
debtedness as they mature during the period of disabili
ty. Superior Life Ins. Co. v. U. S., D.C.S.C., 322 F.Supp. 
921, 924. 
See also Insurance (Credit insurance). 
Credit line. In banking and commerce, that amount of 
money or merchandise which a banker, merchant, or 
supplier agrees to supply to a person on credit and 
generally agreed to in advance. See also Line (Line of 
credit). 
In motion pictures, the preliminary statement which 
gives the names of the players, producer, director, etc. 
May also refer to similar acknowledgments of contribu
tors or assistants in authorship of books, production of 
plays, or the like. 
Credit memorandum. A document used by a seller to 
inform a buyer that the buyer's account receivable is 
being credited (reduced) because of errors, returns, or 
allowances. 
Credit mobilier Ikreydiy mowbiylyey I. A company or 
association formed for carrying on a banking business or 
for the construction of public works, building or rail
roads, operation of mines, or other such enterprises, by 
means of loans or advances on the security of personal 
property. 
Creditor. A person to whom a debt is owing by another 
person who is the "debtor." Rooney v. Inheritance Tax 
Commission of Kansas, 143 Kan. 143, 53 P.2d 500, 501. 
One who has a right to require the fulfillment of an 
obligation or contract. Murphy v. Jos. Hollander, Inc., 
131 N.J.L. 165, 34 A.2d 780, 783. One to whom money 
is due, and, in ordinary acceptation, has reference to 
financial or business transactions. The antonym of 
"debtor." Erickson v. Grande Ronde Lumber Co., 162 
Or. 556, 92 P.2d 170, 177. 
The word is susceptible of latitudinous construction. 
In its broad sense the word means one who has any legal 
liability upon a contract, express or implied, or in tort; 
in its narrow sense, the term is limited to one who holds 
a demand which is certain and liquidated. In statutes 
the term has various special meanings, dependent upon 
context, purpose of statute, etc. 
The term "creditor," within the common-law and stat
utes that conveyances with intent to defraud creditors 
shall be void, includes every one having right to require 
the performance of any legal obligation, contract, or 
guaranty, or a legal right to damages growing out of 
contract or tort, and includes not merely the holder of a 
fixed and certain present debt, but every one having a 
368 
right to require the performance of any legal obligation, 
contract, or guaranty, or a legal right to damages grow
ing out of contract or tort, and includes one entitled to 
damages for breach of contract to convey real estate, 
notwithstanding the abandonment of his action for spe
cific performance. 
Under U.C.C., term includes a general creditor, a 
secured creditor, a lien creditor and any representative 
of creditors, including an assignee for the benefit of 
creditors, a trustee in bankruptcy, a receiver in equity 
and an executor or administrator of an insolvent debt
or's or assignor's estate. U.C.C. § 1-20 1(12). 
Under Bankruptcy Code, term includes entity that has 
a claim against the debtor that arose at the time of or 
before the order for relief concerning the debtor. Bank
ruptcy Code, § 101. 
"Creditors" subject to Federal Truth in Lending Act 
are those who regularly extend or arrange for extension 
to consumers of credit for which a finance charge is 
required. Garza v. Chicago Health Clubs, Inc., D.C.Ill., 
347 F.Supp. 955, 963. 
Classification 
A creditor may be called a "simple contract creditor," 
a "specialty creditor," a "bond creditor," or otherwise, 
according to the nature of the obligation giving rise to 
the debt. 
Attaching creditor. One who has caused an attachment 
to be issued and levied on property of his debtor. See 
Attachment. 
Certificate creditor. A creditor of a municipal corpora
tion who receives a certificate of indebtedness for the 
amount of his claim, there being no funds on hand to 
pay him. 
Confidential creditor. A term sometimes applied to 
creditors of a failing debtor who furnished him with the 
means of obtaining credit to which his real circumstanc
es did not entitle him, thus involving loss to other 
creditors not in his confidence. 
Creditor at large. One who has not established his debt 
by the recovery of a judgment or has not otherwise 
secured a lien on any of the debtor's property. 
Domes tic creditor. One who resides in the same state or 
country in which the debtor has his domicile or his 
property. 
Double creditor. See that title. 
Execution creditor. One who, having recovered a judg
ment against the debtor for his debt or claim, has also 
caused an execution to be issued thereon. See Execution. 
Fo reign creditor. One who resides in a state or country 
foreign to that where the debtor haS his domicile or his 
property. 
General creditor. A creditor at large (supra), or one who 
has no lien or security for the payment of his debt or 
claim.

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369 
Jo int creditors. Persons jointly entitled to require satis
faction of the same debt or demand. 
Judgment creditor. See that title. 
Junior creditor. One whose claim or demand accrued at 
a date later than that of a claim or demand held by 
another creditor, who is called correlatively the "senior" 
creditor. Creditor whose claim ranks below other credi
tors in rights to the debtor's property. For example, a 
creditor with an unperfected security interest in a prop
erty is a junior creditor to one holding a perfected 
security interest. 
Lien creditor. A creditor who has acquired a lien on the 
property involved by attachment, levy or the like and 
includes an assignee for benefit of creditors from the 
time of assignment, and a trustee in bankruptcy from 
the date of the filing of the petition or a receiver in 
equity from the time of appointment. U.C.C. § 9-30 1. 
See also Lien creditor. 
Preferred creditor. See that title. 
Principal creditor. One whose claim or demand very 
greatly exceeds the claims of all other creditors in 
amount is sometimes so called. 
Secondary creditors. One whose claim is secondary to 
preferred creditor(s). 
Secured creditor. See Secured creditor; also, Lien credi
tor, above. 
Single creditor. See that title. 
Subsequent creditor. One whose claim or demand ac
crued or came into existence after a given fact or trans
action, such as the recording of a deed or mortgage or 
the execution of a voluntary conveyance. See also Jun
ior creditor, above. 
Warrant creditor. A creditor of a municipal corporation 
to whom is given a municipal warrant for the amount of 
his claim, because there are no funds in hand to pay it. 
Creditor beneficiary. A third person to whom perform
ance of promise comes in satisfaction of legal duty. A 
creditor who has rights in a contract made by the debtor 
and a third person, where the terms of the contract 
obligate the third person to pay the debt owed to the 
creditor. The creditor beneficiary can enforce the debt 
against either party. 
Where performance of a promise in a contract will 
benefit a person other than the promisee, that person is 
a creditor beneficiary if no purpose to make a gift 
appears from the terms of the promise in view of the 
accompanying circumstances and performance of the 
promise will satisfy an actual or supposed or asserted 
duty of the promisee to the beneficiary, or a right of the 
beneficiary against the promisee which has been barred 
by the Statute of Limitations or by a discharge in 
bankruptcy, or which is unenforceable because of the 
Statute of Frauds. Restatement, Second, Contracts. 
Creditor's bill or suit. Equitable proceeding brought to 
enforce payment of debt out of property or other interest 
of debtor which cannot be reached by ordinary legal 
Black's Law Dictionary 6th Ed.-9 
CREDIT SALE 
process. Sackin v. Kersting, 105 Ariz. 464, 466 P.2d 758. 
By use of the creditor's bill, a judgment creditor can 
reach any nonexempt property interest of the debtor 
that is alienable or assignable under state law. A suit 
by judgment creditor in equity for purpose of reaching 
property which cannot be reached by execution at law. 
A proceeding to enforce the security of a judgment 
creditor against the property or interests of his debtor. 
This action proceeds upon the theory that the judgment 
is in the nature of a lien, such as may be enforced in 
equity. Under rules of civil procedure, such action is 
simply a civil action in which demand is made for this 
type of equitable relief because of the merger of law and 
equity. Fed.R. Civil P. 2. 
Creditor's claim. Generic term to describe any right 
which a creditor has against his debtor. For recovery in 
bankruptcy, such must be provable. See also Claim. 
Creditors' committee. In bankruptcy, a committee of 
representative creditors elected (in Chapter 7) or ap
pointed (in Chapter 11) to consult with the bankruptcy 
trustee or United States Trustee, and to perform other 
services in the interest of the represented creditors. 
Bankruptcy Code, §§ 705, 1102, 1103. 
Creditors' meeting. In bankruptcy, first meeting of 
creditors and equity security holders, at which time a 
trustee may be elected and the debtor examined under 
oath. Bankruptcy Code, § 34 1. See also Meeting of 
creditors. 
Creditors' suit. See Creditor's bill or suit. 
Creditorum appellatione non hi tantum· accipiuntur 
qui pecuniam crediderunt, sed omnes quibus ex 
qualibet causa debetur Ikred;}tor;}m rep;}leyshiyowniy 
non hay trent;}m ;}ksipiy�nt;}r kway p;}kyuwniy;}m 
kred;}dir;}nt, sed omniyz kwib;}s eks kweyl;}b;}t koz;} 
d;}biyt;}r/. Under the head of "creditors" are included, 
not alone those who have lent money, but all to whom 
from any cause a debt is owing. 
Credit rating. The evaluation of a person's or business' 
ability and past performance in paying debts. General
ly established by a credit bureau and used by merchants, 
suppliers and bankers to determine whether a loan 
should be granted or a line of credit given. Credit 
reporting practices are regulated by the federal Fair 
Credit Reporting Act. 
Credit report. A document from a credit bureau setting 
forth a credit rating and pertinent financial data con
cerning a person or a company and used by banks, 
merchants, suppliers and the like in evaluating a credit 
risk. Credit reporting practices are regulated by the 
federal Fair Credit Reporting Act. 
Creditrix Ikred;}triks/. A female creditor. 
Credits. A term of universal application to obligations 
due and to become due. Colbert v. Superior Confection 
Co., 154 Okl. 28, 6 P .. 2d 791, 793. See also Credit; Tax 
credit. 
Credit sale. A sale in which the buyer is permitted to 
pay for the goods at a later time, as contrasted with a

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CREDIT SALE 
cash sale. Any sale with respect to which consumer 
credit is extended or arranged by the seller. The term 
includes any contract in the form of a bailment or lease 
if the bailee or lessee contracts to pay as compensation 
for use a sum substantially equivalent to or in excess of 
the aggregate value of the property and services in
volved and it is agreed that the bailee or lessee will 
become, or for no other or for a nominal consideration 
has the option to become, the owner of the property 
upon full compliance with his obligations under the 
contract. See also Installment sale. 
Credit slip. A document generally given by stores and 
suppliers when a person returns merchandise and which 
permits the customer to purchase another item, or re
ceive the equivalent in cash or open credit for future 
purchases, in return for the credit extended by the slip. 
Credit union. Cooperative association that uses money 
deposited by a closed group of persons (e.g. fellow em
ployees) and lends it out again to persons in the same 
group at favorable interest notes. Credit unions are 
commonly regulated by state banking boards or commis
sions. 
Creed. The word "creed" has been defined as confession 
or articles of faith, formal declaration of religious belief, 
any formula or confession of religious faith, and a sys
tem of religious belief. Cummings v. Weinfeld, 177 
Misc. 129, 30 N.Y.S.2d 36, 38. 
Creek. A small stream less than a river. The term 
imports a recess, cove, bay, or inlet in the shore of a 
river, and not a separate or independent stream; though 
it is sometimes used in the latter meaning. 
Cremation. The act or practice of reducing a corpse to 
ashes by means of extreme heat or fire. See also Dead 
body. 
Crementum comitatus Ikr;}ment;}m kom;}teyt;}s/. The 
increase of a county. The sheriffs of counties anciently 
answered in their accounts for the improvement of the 
king's rents, above the viscontiel rents, under this title. 
Crepare oculum Ikr;}periy 6ky;}l;}m/. In Saxon law, to 
put out an eye; which had a pecuniary punishment of 
fifty shillings annexed to it. 
Crepusculum Ikr;}p�sky;}l;}m/. Twilight. In the com
mon law of burglary, this term means the presence of 
sufficient light to discern the face of a man; such light 
as exists immediately before the rising of the sun or 
directly after its setting. 
Crescente malitia crescere debet et prena Ikr;}sentiy 
m;}lish(iy);} kres;}riy deb;}t et piyn;}/. Vice increasing, 
punishment ought also to increase. 
Crest. A term used in heraldry; it signifies the devices 
set over a coat of arms. High point of an action or 
process. Highest or upper edge, prominence, level, or 
limit. 
Cretio Ikriysh(iy)ow/. Lat. In the civil law, a certain 
number of days allowed an heir to deliberate whether he 
would take the inheritance or not. 
370 
Crew. Usually referred to and is primarily thought of as 
those who are on board and aiding in the navigation; 
e.g. flight crew, ship's crew. The aggregate of seamen 
who man a ship or vessel, including the master and 
officers; or it may mean the ship's company, exclusive 
of the master, or exclusive of the master and all other 
officers. 
Crew does not have an absolutely unvarying legal 
significance or any well-defined factual significance. 
Schantz v. American Dredging Co., C.C.A.Pa., 138 F.2d 
534, 537. 
Crew list. A list of the crew of a vessel or aircraft; one 
of a ship's or aircraft's papers. This instrument is 
required by statute and sometimes by treaties. 46 U.S. 
C.A. §§ 322, 323. 
Crier Ikray;}r/. An officer of a court, who makes procla
mations. His principal duties are to announce the open
ing of the court and its adjournment and the fact that 
certain special matters are about to be transacted, to 
announce the admission of persons to the bar, to call the 
names of jurors, witnesses, and parties, to announce that 
a witness has been sworn, to proclaim silence when so 
directed, and generally to make such proclamations of a 
public nature as the judges order. An auctioneer 
(cryer). See also Bailiff. 
Criez la peez Ikrayiyz b piys/. Rehearse the concord, 
or peace. A phrase used in the ancient proceedings for 
levying fines. It was the form of words by which the 
justice before whom the parties appeared directed the 
serjeant or countor in attendance to recite or read aloud 
the concord or agreement between the parties, as to the 
lands intended to be conveyed. 
Crim. Con. An abbreviation for "criminal conversa
tion," denoting adultery. 
Crime. A positive or negative act in violation of penal 
law; an offense against the State or United States. 
"Crime" and "misdemeanor", properly speaking, are 
synonymous terms; though in common usage "crime" is 
made to denote such offenses as are of a more serious 
nature. In general, violation of an ordinance is not a 
crime. 
A crime may be defined to be any act done in violation 
of those duties which an individual owes to the commu
nity, and for the breach of which the law has provided 
that the offender shall make satisfaction to the public. . 
A crime or public offense is an act committed or omitted 
in violation of a law forbidding or commanding it, and to 
which is annexed, upon conviction, either, or a combina
tion, of the following punishments: (1) death; (2) impris
onment; (3) fine; (4) removal from office; or (5) disquali
fication to hold and enjoy any office of honor, trust, or 
profit. While many crimes have their origin at common 
law, most have been created by statute; and, in many 
states, such have been codified. In addition, there are 
both state and federal crimes (as to the latter, see Title 
18, U.S.C.A.). 
See also Classification of crimes; Compounding crime; 
Continuing offense; Criminal; Degrees of crime; Elements

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371 
of crime; Federal crimes; Felony; Inchoate crimes; In
stantaneous crime; Lesser included offense; Misdemean
or; Offense; Petty offense; Political crime; Vehicular 
crimes. 
General Classification 
Crimes are classified for various purposes, the princi
pal classification being that which divides crimes into 
felonies and misdemeanors. Other classifications are: 
(a) crimes which are mala in se versus crimes mala 
proh ibita; (b) infamous crimes versus crimes which are 
not infamous; (c) crimes involving moral turpitude ver
sus those which do not involve moral turpitude; (d) 
major crimes versus petty crimes; and (e) common law 
crimes versus statutory crimes. 
Capital crime. Crime punishable by death. 
Co mmon law crimes. Such crimes as are punishable by 
the force of the common law, as distinguished from 
crimes created by statute. 
Co ntinuous crime. One consisting of a continuous series 
of acts, which endures after the period of consummation, 
as, the offense of carrying concealed weapons. In the 
case of instantaneous crimes, the statute of limitations 
begins to run with the consummation, while in the case 
of continuous crimes it only begins with the cessation of 
the criminal conduct or act. 
Crime against law of nations. Term which is under
stood to include crimes which all nations agree to pun
ish such as murder and rape. 
Crime against nature. Deviate sexual intercourse per os 
or per anum between human beings who are not hus
band and wife and any form of sexual intercourse with 
an animal. Model Penal Code, § 213.0. Crime of bug
gery or sodomy. 
Crime against pro perty. Term used to describe a crime, 
the object of which is property as contrasted with per
son; e.g. larceny. 
Crime insurance. See Insurance. 
Crime of omission. Any offense, the gravamen of which 
is the failure to act when there is an obligation to act. 
May amount to manslaughter if the failure is wilful, 
wanton and reckless. 
Crime of passion. A crime committed in the heat of 
passion. See Heat of paSSion. 
Crime of violence. An offense that has as an element 
the use, attempted use, or threatened use of physical 
force against the person or property of another, or any 
other offense that is a felony and that, by its nature, 
involves a substantial risk that physical force against 
the person or property of another may be used in the 
course of committing the offense. 18 U.S.C.A. § 16. 
Crimes of violence include voluntary manslaughter, 
murder, rape, mayhem, kidnaping, robbery, burglary or 
housebreaking in the nighttime, extortion accompanied 
by threats of violence, assault with a dangerous weapon 
or assault with intent to commit any offense punishable 
by imprisonment for more than one year, arson punisha-
CRIME 
ble as a felony, or an attempt or conspiracy to commit 
any of the foregoing offenses. 
Crimes mala in se. Crimes mala in se embrace acts 
immoral or wrong in themselves, such as burglary, lar
ceny, arson, rape, murder, and breaches of peace. 
Crimes mala prohibi ta. Crimes mala prohibita embrace 
things prohibited by statute as infringing on others' 
rights, though no moral turpitude may attach, and con
stituting crimes only because they are so prohibited. 
Felony. See Felony. 
Infamous crime. A crime which entails infamy upon 
one who has committed it. The term "infamous"-i.e., 
without fame or good report-was applied at common 
law to certain crimes, upon the conviction of which a 
person became incompetent to testify as a witness, upon 
the theory that a person would not commit so heinous a 
crime unless he was so depraved as to be unworthy of 
credit. These crimes are treason, felony, and the crimen 
falsi. A crime punishable by imprisonment in the state 
prison or penitentiary, with or without hard labor, is an 
infamous crime, within the provision of the fifth amend
ment of the constitution that "no person shall be held to 
answer for a capital or otherwise infamous crime unless 
on a presentment or indictment of a grand jury." Mac
kin v. U. S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; 
Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132. It 
is not the character of the crime but the nature of the 
punishment which renders the crime "infamous." 
Whether an offense is infamous depends on the punish
ment which may be imposed therefor, not on the punish
ment which was imposed. United States v. Moreland, 
258 U.S. 433, 42 S.Ct. 368, 370, 66 L.Ed. 700. 
Misdemeanor. See Misdemeanor. 
Organized crime. Term used to describe that form of 
crime which is the product of groups and organizations 
as contrasted with the crime planned and committed by 
individuals without organizational backing; gambling 
and narcotics are common subjects of organized crime. 
Quasi crimes. This term embraces all offenses not 
crimes or misdemeanors, but that are in the nature of 
crimes. A class of offenses against the public which 
have not been declared crimes, but wrongs against the 
general or local public which it is proper should be 
repressed or punished by forfeitures and penalties. This 
would embrace all qui tam actions and forfeitures im
posed for the neglect or violation of a public duty. A 
quasi crime would not embrace an indictable offense, 
whatever might be its grade, but simply forfeitures for a 
wrong done to the public, whether voluntary or involun
tary, where a penalty is given, whether recoverable by 
criminal or civil process. Also, offenses for which some 
person other than the actual perpetrator is responsible, 
the perpetrator being presumed to act by command of 
the responsible party. Sometimes, injuries which have 
been unintentionally caused. D.W.!. (driving while in
toxicated) offenses are sometimes classified as quasi 
crimes.

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CRIME 
Statutory crimes. Those created by statutes, as distin
guished from such as are known to, or cognizable by, the 
common law. See e.g. U.S.Code, Title 18. 
White-collar crime. Generally included under this clas
sification of crimes are antitrust violations, bribery, 
computer crime, criminal copyright infringement, envi
ronmental crimes, extortion, food and drug violations, 
government contract fraud, mail and wire fraud, RICO 
offenses, securities and tax fraud, theft of trade secrets. 
Crime Control Acts. Multifaceted legislation designed 
to curb crime by e.g., legislating new types of crimes, 
redefining existing crimes, increasing sentences, adding 
new prosecutors, judges, and prisons, etc. Examples are 
federal Comprehensive Crime Control Act of 1984; Drug 
Abuse Act of 1988 (as incorporated in U.S.Code Titles 18 
and 21). 
Crimen Ikraym: m/. Lat. Crime. Also an accusation or 
charge of crime. 
Crimen furti Ikraym;}n f�rtay I. The crime or offense of 
theft. 
Crimen incendii Ikraym;}n ;}nsendiyay I. The crime of 
burning, which included not only the modern crime of 
arson, but also the burning of a man, a beast, or other 
chattel. 
Crimen innominatum Ikraym;}n ;}nom;}neyt;}m/. The 
nameless crime; the crime against nature; sodomy or 
buggery. 
Crimen raptus Ikraym;}n rrept;}s/. The crime of rape. 
Crimen roberire Ikraym;}n r;}b�riyiy I. The offense of 
robbery. 
Flagrans crimen; Locus criminis; Particeps criminis. See 
those titles. 
Crimen falsi Ikraym;}n f61(t)say/. Term generally refers 
to crimes in the nature of perjury or subornation of 
perjury, false statement, criminal fraud, embezzlement, 
false pretense, or any other offense which involves some 
element of deceitfulness, untruthfulness, or falsification 
bearing on witness' propensity to testify truthfully. 
Government of Virgin Islands v. Toto, C.A.Virgin Is
lands, 529 F.2d 278, 282. 
At common law, any crime which rendered the perpe
trator incompetent to be a witness, such as forgery, 
perjury, sobornation of perjury and other crimes affect
ing the administration of justice. 
In the civil law, the crime of falsifying; which might 
be committed either by writing, as by the forgery of a 
will or other instrument; by words, as by bearing false 
witness, or perjury; and by acts, as by counterfeiting or 
adulterating the public money, dealing with false 
weights and measures, counterfeiting seals, and other 
fraudulent and deceitful practices. 
Crimen falsi dicitur, cum quis illicitus, cui non fuerit 
ad hrec data auctoritas, de sigillo regis, rapto vel 
invento, brevia, cartasve consignaverit Ikraym;}n 
f6ltsay dis;}t;}r, k�m kwis ;}lis;}t;}s, k(yuw)ay non fyuw;}r;}t 
red hiyk deyt;} okt6hr;}tres, diy s;}jilow riyj;}s, rreptow vel 
372 
inventow, briyviy;} kartresviy konsigneyv;}r;}t/. The 
crime of forgery is when any one illicitly, to whom 
power has not been given for such purposes, has signed 
writs or charters with the king's seal, either stolen or 
found. 
Crimen lresre majestatis Ikraym;}n liyziy mrej;}s;}teyt;}s/. 
The crime of lese-majesty, or injuring majesty or royalty; 
high treason. The term was used by the older English 
law writers to denote any crime affecting the king's 
person or dignity. 
It is borrowed from the civil law, in which it signified 
the undertaking of any enterprise against the emperor 
or the republic. 
Crimen lresre majestatis omnia alia crimina excedit 
quoad prenam Ikraym;}n liyziy mrej;}steyt;}s 6mniy;} ey
liy;} krim;}n;} ;}ksiyd;}t kw6wred piyn;}m/. The crime of 
treason exceeds all other crimes in its punishment. 
Crimen omnia ex se nata vitiat Ikraym;}n 6mniy;} eks 
siy neyt;} vishiy;}t/. Crime vitiates everything which 
springs from it. 
Crimen trahit personam Ikraym;}n trey(h);}t 
p;}rs6wn;}m/. The crime carries the person (i.e., the 
commission of a crime gives the courts of the place 
where it is committed jurisdiction over the person of the 
offender). 
Crime statistics. Those figures compiled by federal and 
state agencies showing the incidence of various types of 
crime on a geographical basis. 
Criminal,. n. One who has committed a criminal offense; 
one who has been legally convicted of a crime; one 
adjudged guilty of crime. See also Dangerous criminal; 
Habitual criminal. 
Criminal, adj. That which pertains to or is connected 
with the law of crimes, or the administration of penal 
justice, or which relates to or has the character of crime. 
Of the nature of or involving a crime. 
Criminal act. Commission of a crime. 
Criminal action. Proceeding by which person charged 
with a crime is brought to trial and either found not 
guilty or guilty and sentenced. An action, suit, or cause 
instituted to punish an infraction of the criminal laws. 
See also Indictment; Penal action; Prosecution. 
Criminal anarchy. The doctrine that organized govern
ment should be overthrown by force and violence or 
other unlawful means. The advocacy of such doctrine 
has been made a felony. Whitney v. California, 274 U.S. 
357, 47 S.Ct. 641, 71 L.Ed. 1095; 18 U.S.C.A. § 2384. 
Criminal Appeals Act. Federal Act which allows the 
United States to appeal to a court of appeals from 
certain judgments, orders, or rulings of district courts. 
18 U.S.C.A. § 3731. 
Criminal attempt. Crime of a criminal attempt consists 
of an attempt to commit the crime and some step or 
overt act towards commission of the crime. State v. 
Harvill, 106 Ariz. 386, 476 P.2d 841. A substantial step 
towards a criminal offense with specific intent to com-

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373 
mit that particular crime. A criminal attempt is de
fined as an overt act done in pursuance of intent to do a 
specific thing, tending to the end but falling short of 
complete accomplishment of it; such overt act must be 
sufficiently proximate to intended crime to form one of 
natural series of acts which intent requires for its full 
execution. Com. v. McCloskey, 234 Pa.Super. 577, 341 
A.2d 500, 503. See also Attempt. 
Criminal behavior. Conduct which causes any social 
harm which is defined and made punishable by law. 
Criminal capacity. Legal qualifications necessary to 
commit a crime such as voluntariness of the act, age and 
mental condition. See also Capacity; Insanity. 
Criminal charge. An accusation of crime, formulated in 
a written complaint, information, or indictment, and 
taking shape in a prosecution. 
Criminal coercion. See Coercion. 
Criminal conspi racy. An agreement or confederacy of 
two or more persons to do a criminal or unlawful act or 
to do a lawful act in an unlawful or criminal manner. 
In many jurisdictions, an overt act in furtherance of the 
confederacy is required. See also Conspiracy. 
Criminal contempt. A crime which consists in the ob
struction of judicial duty generally resulting in an act 
done in the presence of the court; e.g. contumelious 
conduct directed to the judge or a refusal to answer 
questions after immunity has been granted. Conduct 
directed against the majesty of the law or the dignity 
and authority of the court or judge acting judiciously, 
whereas a "civil contempt" ordinarily consists in failing 
to do something ordered to be done by a court in a civil 
action for the benefit of an opposing party therein. 
Sullivan v. Sullivan, 16 Ill.App.3d 549, 306 N.E.2d 604, 
605. See also Contempt. 
Criminal conversation. Sexual intercourse of an outsid
er with husband or wife, or a breaking down of the 
covenant of fidelity. Tort action based on adultery, 
considered in its aspect of a civil injury to the husband 
or wife entitling him or her to damages; the tort of 
debauching or seducing of a wife or husband. Often 
abbreviated to crim. con. Statutes in several states 
prohibit actions for criminal conversation. See Adultery; 
Alienation of affections; Heart balm statutes. 
Criminal forfeiture. The taking by the government of 
property because of its involvement in a crime; e.g. an 
automobile used to smuggle narcotics; gun used in hunt
ing without license or out of season. See e.g. 18 V.S.C.A. 
§ 982; 21 V.S.C.A. § 853. See also Confiscate; Forfei
ture; Seizure. 
Criminal fraud. In taxation, the attempt to evade the 
payment of lawfully due taxes by willfully filing a false 
or fraudulent tax return. I.R.S. §§ 7201, 7207. In other 
contexts, the crime of larceny by false pretenses or 
larceny by trick. See also Fraud. 
Criminal gross negligence. Gross negligence is culpable 
or criminal when accompanied by acts of commission or 
omission of a wanton or willful nature, showing a reck-
CRIMINAL 
less or indifferent disregard of the rights of others, 
under circumstances reasonably calculated to produce 
injury, or which make it not improbable that injury will 
be occasioned, and the offender knows or is charged with 
knowledge of the probable result of his acts; "culpable" 
meaning deserving of blame or censure. See also Crimi
nal negligence, below. 
Criminal insanity. See Insanity. 
Criminal instrumentality rule. Where the wrong is ac
complished by a crime, the crime and not the negligent 
act of the party which made it possible is the "proximate 
cause". Foutch v. Alexandria Bank & Trust Co., 177 
Tenn. 348, 149 S.W.2d 76, 85. 
Criminal intent. The intent to commit a crime; malice, 
as evidenced by a criminal act; an intent to deprive or 
defraud the true owner of his property. Includes those 
consequences which represent the very purpose for 
which an act is done, regardless of the likelihood of 
occurrence, or are known to be substantially certain to 
result, regardless of desire. May be general or specific 
intent; mens rea. See also Knowingly; Mens rea; Pre
meditation; Specific intent. 
Criminal jurisdiction. Power of tribunal to hear and 
dispose of criminal cases. 
Criminal laws. See Penal code; Penal laws. 
Criminal libel. Criminal libel is the malicious publica
tion of durable defamation. The malicious defamation 
of a person made public by any printing or writing 
tending to provoke him to wrath and to deprive him of 
the benefits of public confidence and social intercourse. 
It is a misdemeanor at common law and also under 
modern statutes unless it has been made a felony which 
is not common. Four elements are included: (1) def
amation, (2) durable, (3) pUblication and (4) malice. It 
should be noted however that criminal sanctions for 
defamation of public officials is subject to same constitu
tional limitations as for civil actions. Garrison v. State 
of Louisiana, 379 V.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. 
See also Libel. 
Criminal mal version. A broad category of corrupt offi
cial practices. Jimenez v. Aristeguieta, C.A.Fla., 311 
F.2d 547, 562. See e.g. Bribery. 
Criminal mischief. A species of wilful and malicious 
injury to property made punishable by statutes in most 
jurisdictions. 
Criminal moti ve. Something in the mind or that condi
tion of the mind which incites to action or induces 
action, or gives birth to a purpose. Distinguishable from 
intent which represents the immediate object in view 
while motive is the ulterior intent. 
Criminal negligence. See Criminal gross negligence, 
above; also, Negligence. 
Criminal non-su pport. The wilful and unreasonable 
failure to support one whom the law requires a person 
to support (i.e. spouse and children). See Non-su pport; 
Support.

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CRIMINAL 
Criminal proceedin g. One instituted and conducted for 
the purpose either of preventing the commission of 
crime, or for fixing the guilt of a crime already commit
ted and punishing the offender; as distinguished from a 
"civil" proceeding, which is for the redress of a private 
injury. Strictly, a "criminal proceeding" means some 
step taken before a court against some person or persons 
charged with some violation of the criminal law. See 
also Criminal procedure. 
Criminal process. Process which issues to compel a 
person to answer for a crime or misdemeanor; e.g. 
arrest warrant. See also Indictment; Information; Pro
cess; Warrant. 
Criminal prosec ution. An action or proceeding institut
ed in a proper court on behalf of the public, for the 
purpose of securing the conviction and punishment of 
one accused of crime. A proceeding instituted by the 
state to obtain punishment against the person charged 
with and found guilty of a public offense; it embraces 
not only the accusation, whether by indictment or infor
mation, and the determination of guilt or innocence, but 
also, in case of a conviction, the imposition of sentence. 
State v. Parker, 194 Conn. 650, 485 A.2d 139, 142. 
Criminal syndicalism. Any doctrine or precept advocat
ing, teaching or aiding and abetting the commission of 
crime of sabotage or unlawful acts of force and violence 
or unlawful methods of terrorism as a means of accom
plishing a change in industrial ownership or control or 
affecting any political change. Gitlow v. New York, 268 
U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. The advocacy of 
sabotage, violence, terrorism, or other unlawful methods 
for revolutionary purposes. See also Syndicalism. 
Criminal trespass. The offense committed by one who, 
without license or privilege to do so, enters or surrepti
tiously remains in any building or occupied structure. 
Model Penal Code, § 221.2. Off ense is committed when 
a person without effective consent enters or remains on 
property or in building of another knowingly or inten
tionally or recklessly when he had notice that entry was 
forbidden or received notice to depart but failed to do so. 
Day v. State, Tex.Cr.App., 532 S.W.2d 302, 306. 
Criminalist. One versed in criminal law, one addicted to 
criminality, and, also, a psychiatrist dealing with crimi
nality. People v. Taylor, 152 CaLApp.2d 29, 312 P.2d 
731, 734; Douglas v. State, 42 Ala.App. 314, 163 So.2d 
477, 486. See Recidivist. 
Criminalistics. The science of crime detection, based 
upon the application of chemistry, physics, physiology, 
psychology, and other sciences. See also Criminolo gy. 
Criminaliter Ikrim;meyh�t;}r/. Lat. Criminally. This 
term is used, in distinction or opposition to the word 
"civilit er," civilly, to distinguish a criminal liability or 
prosecution from a civil one. 
Criminalization. The rendering of an act criminal (e.g. 
by statutory enactment) and hence punishable by the 
government in a proceeding in its name. 
374 
Criminal justice system. The network of courts and 
tribunals which deal with criminal law and its enforce
ment. 
Criminal law. The substantive criminal law is that law 
which for the purpose of preventing harm to society, (a) 
declares what conduct is criminal, and (b) prescribes the 
punishment to be imposed for such conduct. It includes 
the definition of specific offenses and general principles 
of liability. Substantative criminal laws are commonly 
codified into criminal or penal codes; e.g. U .S.C.A. Title 
18, California Penal Code, Model Penal Code. Compare 
Criminal procedure. 
Criminal procedure. The rules of law governing the 
procedures by which crimes are investigated, prosecuted, 
adjudicated, and punished. Generic term to describe 
the network of laws and rules which govern the proce
dural administration of criminal justice; e.g. laws and 
court rules (e.g. Rules of Criminal Procedure) governing 
arrest, search and seizure, bail, etc. Compare Criminal 
law. See also Code of criminal procedure. 
Criminal protector. An accessory after the fact to a 
felony. Skelly v. U. S., 10th Cir., 76 F.2d 483. One who 
aids or harbors a felon after the commission of a crime. 
Criminal registration. Statutes in certain jurisdictions 
require that persons who are convicted felons register 
with the police so that their presence in the community 
will be known at all times. Lambert v. California, 355 
U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. Subversive orga
nizations are required to register under 18 U.S.C.A. 
§ 2386. 
Criminal sanctions. Punishments attached to convic
tion of crimes such as fines, restitution, probation and 
sentences. See also Civil death. 
Criminal statutes or codes. Federal and state laws 
enacted by legislative bodies which define, classify, and 
set forth punishments for specific crimes; e.g. Title 18 of 
United States Code; Model Penal Code. 
Crimina morte extinguuntur Ikrim;}n;} mortiy eks
tiIJgw�nt;}r/. Crimes are extinguished by death. 
Criminate. To charge one with crime; to furnish 
ground for a criminal prosecution; to implicate, accuse, 
or expose a person to a criminal charge. A witness 
cannot be compelled to answer any question which has a 
tendency to criminate him. See Incrimin ate; Self-incrimi
nation. 
Criminology. The study of the nature of, causes of, and 
means of dealing with crime. 
Crimp. One who decoys and plunders sailors under 
cover of harboring them. 
Crippling. The word "crippling" is equivalent of words 
"physical disability" and is defined as to deprive of use 
of limbs, particularly of leg or foot; to deprive of 
strength, activity or capability for service or use and to 
disable. 
Crisis. A crucial point or situation in the course of 
things; a turning point; a very tense moment; an 
unstable or crucial time.

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375 
Critical evidence. Material evidence of substantial pro
bative force that could induce a reasonable doubt in the 
minds of enough jurors to avoid a conviction. Gray v. 
Rowley, C.A.La., 604 F.2d 382, 383. 
Critical stage. Critical stage in a criminal proceeding at 
which accused is entitled to counsel is one in which a 
defendant's rights may be lost, defenses waived, privi
leges claimed or waived, or in which the outcome of the 
case is otherwise substantially affected. See Mempa v. 
Rhay, 389 U.S. 128, 88 S.Ct. 254. Test of "critical stage" 
of criminal proceeding as it relates to right to counsel is 
whether proceeding either requires or offers opportunity 
to take procedural step which will have prejudicial ef
fects in later proceedings, or whether events transpire 
that are likely to prejudice ensuing trial. Miller v. 
State of S. C., D.C.S.C., 309 F.Supp. 1287, 1290. See also 
Counsel, right to; Custodial interrogation. 
Crocia Ikrows(h)iy�/. The crosier, or pastoral staff. 
Crociarius Ikrowsiyeriy;)s/. A cross-bearer, who went 
before the prelate. 
Croft. A little close adjoining a dwelling-house, and 
inclosed for pasture and tillage or any particular use. A 
small place fenced off in which to keep farm-cattle. The 
word is now entirely obsolete. 
Croises I kroyZ;)Z I kroyziyz I . Pilgrims; so called as wear
ing the sign of the cross on their upper garments. The 
knights of the order of St. John of Jerusalem, created for 
the defense of the pilgrims. 
Croiteir. A crofter; one holding a croft. 
Crook. A person given to crooked or fraudulent practic
es; a swindler, sharper, thief, forger, or the like. Term 
has been defined as a professional rogue; a criminal; or 
one consorting with criminals; a person recognized by 
the authorities as belonging to the criminal class. 
Crooked. Deviating from rectitude or uprightness; not 
straightforward; dishonest; wrong; perverse. A 
"crook" is a dishonest person; one who is crooked in 
conduct; a tricky or underhand schemer; a thief or 
swindler. 
Crop. Products of the soil, as are annually grown, 
raised, and harvested. Growing crops are considered 
"goods" under U.C.c. § 2-105(1). Term includes fruit 
grown on trees, and grass used for pasturage. See also 
Basic crops; Growing crop. 
Crop insurance. See Insurance. 
Cropper. See Sharecropper. 
Cross. A mark made by persons who are unable to 
write, to stand instead of a signature. A mark usually 
in the form of an X, by which voters are commonly 
required to express their selection. There are four 
principal forms of the cross: The St. Andrew's cross, 
which is made in the form of an X; the Latin cross, t, as 
used in the crucifixion; St. Anthony'S cross, which is 
made in the form of a T; and the Greek cross, +, which 
is made by the intersection at right angles of lines at 
their center point. 
CROSS-DEMAND 
As an adjective, the word is applied to various de
mands and proceedings which are connected in subject
matter, but opposite or contradictory in purpose or ob
ject. 
As a verb it means to pass or extend from one side to 
the other, as to cross a stream. People v. Hawkins, 51 
Cal.App.2d Supp. 781, 124 P.2d 691, 692. 
Cross-action. An action brought by one who is defen
dant in a suit against the party who is plaintiff in such 
suit, or against a co-defendant, upon a cause of action 
growing out of the same transaction which is there in 
controversy, whether it be a contract or tort. An inde
pendent suit brought by defendant against plaintiff or 
co-defendant. See also Counterclaim; Cross-c laim; 
Cross- complaint. 
Cross appeal. An appeal by the appellee. In the feder
al courts a cross appeal is argued with the initial appeal 
of the appellant. Fed.R.App.P. 34(d). See also Appeal. 
Cross-claim. Cross-claims against co-parties are gov
erned in the federal district courts and in most state 
trial courts by Rule of Civil Procedure 13(g): "A plead
ing may state as a cross-claim any claim by one party 
against a co-party arising out of the transaction or 
occurrence that is the subject matter either of the origi
nal action or of a counterclaim therein or relating to 
any property that is the subject matter of the original 
action. Such cross-claim may include a claim that the 
party against whom it is asserted is or may be liable to 
the cross-claimant for all or part of a claim asserted in 
the action against the cross-claimant." See also New 
York C.P.L.R. § 3019(b). 
For requisite content of cross-claim under Rules of 
Civil Procedure, see Complaint. See also Cross- complaint; 
Transaction or occurrence test. 
Co un terclaim distinguished. "Cross-claims" are litigat
ed by parties on the same side of the main litigation, 
while "counterclaims" are litigated between opposing 
parties to the principal action. Resource Engineering, 
Inc. v. Siler, 94 Idaho 935, 500 P.2d 836, 840. 
Cross collateral. Security given by both parties to a 
contract or undertaking for performance or payment. 
Cross-complaint. A defendant or cross-defendant may 
file a cross-complaint setting forth either or both of the 
following: (a) Any cause of action he has against any of 
the parties who filed the complaint against him. (b) 
Any cause of action he has against a person alleged to 
be liable thereon, whether or not such person is already 
a party to the action, if the cause of action asserted in 
his cross-complaint, (1) arises out of the same transac
tion, occurrence, or series of transactions or occurrences 
as the cause brought against him or (2) asserts a claim, 
right, or interest in the property or controversy which is 
the subject of the cause brought against him. Calif. 
Code of Civil Proc. § 428.10. See also Cross-claim. 
Cross-demand. Where a person against whom a de
mand is made by another, in his turn makes a demand 
against that other, these mutual demands are called

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CROSS· DEMAND 
"cross-demands." A set-off is a familiar example. See 
also Counterclaim; Cross-c laim; Cross-co mplaint. 
Crossed check. See Check. 
Cross-errors. Errors being assigned by the respondent 
in a writ of error; the errors assigned on both sides are 
called "cross-erro rs." 
Cross-examination. The examination of a witness upon 
a trial or hearing, or upon taking a deposition, by the 
party opposed to the one who produced him, upon his 
evidence given in chief, to test its truth, to further 
develop it, or for other purposes. The examination of a 
witness by a party other than the direct examiner upon 
a matter that is within the scope of the direct examina
tion of the witness. Generally the scope of examination 
is limited to matters covered on direct examination and 
matters affecting the credibility of the witness; though 
the court may in its discretion permit inquiry into 
additional matters as if on direct examination. Fed.R. 
Civil P. 43(b); Fed.Evid.Rule 611. Compare Direct exami
nation; Redir ect examination. 
Crossing. A portion of a street over which pedestrians 
may lawfully cross from one side to the other. With 
reference to railroads, that portion of the right of way 
covered by intersection with a street or highway. In a 
broader sense, the term includes embankments con
structed as necessary approaches to a railroad track, 
and approaches or embankments reasonably necessary 
to enable crossings or bridges to be used. For Farm 
Crossing, see that title. 
Cross interrogatory. A party to an action who has been 
interrogated may serve cross questions on all other 
parties. Fed.R. Civil P. 31(a). 
Cross-licensing. Permission or right to use a thing or 
property given in exchange between two or more par
ties. Exchange of licenses by two or more patent hold
ers in order that each may use or benefit from the 
patents of the other. 
Cross-purchase buy and sell agreement. Under this 
type of arrangement, the surviving owners of a business 
agree to buy out the withdrawing owner. Assume, for 
example, R and S are equal shareholders in T Corpora
tion. Under a cross-purchase buy and sell agreement, R 
and S would contract to purchase the other's interest 
should that person decide to withdraw from the busi
ness. 
Partnership insurance plan wherein each partner in
dividually purchases and maintains enough insurance 
on the life or lives of other partners to fund the pur
chase of the others' equity. See also Buy and sell agree
-m ent. 
Cross remainder. Cross remainders are remainders 
which are so limited after particular estates to two or 
more persons in several parcels of land, or in several 
undivided shares in the same parcel of land, that, on the 
determination of the particular estates in any of the 
several parcels of undivided shares, they remain over to 
the other grantees, and the reversioner or ulterior re
mainderman is not let in until the determination of all 
376 
of the particular estates. Hartford Nat. Bank & Trust 
Co. v. Harvey, 143 Conn. 233, 121 A.2d 276. 
Crown. The sovereign power and position of a monarch. 
An ornamental badge of regal power worn on the head 
by sovereign princes. The word is frequently used when 
speaking of the sovereign himself, or the rights, duties, 
and prerogatives belonging to him. Also a silver coin of 
the value of five shillings. 
Crown cases. In English law, criminal prosecutions on 
behalf of the crown, as representing the public; causes 
in the criminal courts. 
Crown cases reserved. In English law, questions of law 
arising in criminal trials at the assizes (otherwise than 
by way of demurrer), and not decided there, but reserved 
for the consideration of the court of criminal appeaL 
Superseded by criminal division of Court of Appeal. 
Crown court. New court, created in 1971 in England 
and Wales to replace the criminal jurisdiction of the 
Assize Courts and all the jurisdiction of the Courts of 
Quarter Sessions, consisting in 90 separate centers. Ap
peal lies to it from magistrates' courts, Supreme Court 
Act, 1981, § 108. Appeal from it lies to the Court of 
Appeal, Criminal Appeal Act, 1968 § 45, 52. 
Crown debts. In England, debts due the crown, which 
are put, by various statutes, upon a different footing 
from those due to a subject. Bankruptcy does not dis
charge such debts unless Commissioners of the Treasury 
certify in writing their consent to discharge. 
Crown lands. The demesne lands of the crown. In 
England and Canada, lands belonging to the sovereign 
personally or to the government or nation, as distin
guished from such as have passed into private owner
ship. 
Crown law. Criminal law in England is sometimes so 
termed, the crown being always the prosecutor in crimi
nal proceedings. 
Crown loan. Name for an interest free demand loan, 
usually from a parent to a child. The borrowed funds 
are invested and the income from the investment is 
taxed at the child's rate. This type of loan got its name 
from Harry Crown of Chicago, who was the first to use 
it. In 1984, the Supreme Court ruled that the market 
rate of interest must be imputed on each loan, and 
treated as a gift subject to gift taxes. See Kiddie tax. 
Crown office. In England, the criminal side of the 
former court of king's bench. The king's attorney in 
this court was called "master of the crown office". Now 
the Crown Office and Associates' Department of the 
Central Off ice of the Supreme Court. 
Crown office in chancery. Formerly one of the offices 
of the English high court of chancery; later transferred 
to the high court of justice. The principal official, the 
clerk of the crown, was an officer of parliament, and of 
the lord chancellor, in his nonjudicial capacity, rather 
than an officer of the courts of law.

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377 
Crown paper. A paper containing the list of criminal 
cases, which await the hearing or decision on the Crown 
side of the Queen's Bench Division. 
Crown prosecutors. Members of the Crown Prosecu
tion Service whose duty it is to take over the conduct of 
all criminal proceedings on behalf of the police. Prose
cution of Off enses Act, 1985, § 3(1). 
Crown side. That jurisdiction of Queen's Bench Divi
sion by which it takes jurisdiction of criminal cases. 
Crown solicitor. In England, the solicitor to the trea
sury acts, in state prosecutions, as solicitor for the crown 
in preparing the prosecution. Public prosecutions are 
now handled either by the Director of Public Prosecu
tions or by police or some other public authority. 
Cruce signati Ikruwsiy sayneytiy/. In old English law, 
signed or marked with a cross. Pilgrims to the holy 
land, or crusaders; so called because they wore the sign 
of the cross upon their garments. 
Crude. A flexible term depending largely on context. 
In natural state; raw; unrefined; not artificially al
tered; unfinished. Vulgar. 
Cruel and inhuman treatment. As ground for divorce, 
consists of unwarranted and unjustifiable conduct on 
part of defendant causing other spouse to endure suffer
ing and distress, thereby destroying peace of mind and 
making living with such spouse unbearable, completely 
destroying real purpose and object of matrimony. Well
ing v. Welling, 144 Ind.App. 182, 245 N.E.2d 173, 176. 
Cruel and unusual punishment. See Corporal punish
ment; Punishment. 
Cruelty. The intentional and malicious infliction of 
physical or mental suffering upon living creatures, par
ticularly human beings; or, as applied to the latter, the 
wanton, malicious, and unnecessary infliction of pain 
upon the body, or the feelings and emotions; abusive 
treatment; inhumanity; outrage. 
Chiefly used in the law of divorce, in such phrases as 
"cruel and abusive treatment," "cruel and barbarous 
treatment," or "cruel and inhuman treatment" (q. v.J. 
In domestic relations, term includes mental injury as 
well as physical. Williams v. Williams, 351 Mich. 210, 
213, 88 N.W.2d 483, 484. Generally, single act of cruel
ty is not sufficient for divorce-there must be course of 
cruel conduct over period of time, Richardson v. Rich
ardson, 258 S.C. 135, 187 S.E.2d 528. This ground for 
divorce is of limited importance with the enactment by 
most states of no-fault divorce laws. 
See also Legal cruelty; Mental anguish; Mental cruelty. 
Cruelty to animals. The infliction of physical pain, 
suffering, or death upon an animal, when not necessary 
for purposes of training or discipline or (in the case of 
death) to procure food or to release the animal from 
incurable suffering, but done wantonly, for mere sport, 
for the indulgence of a cruel and vindictive temper, or 
with reckless indifference to its pain. 
A person commits a misdemeanor if he purposely or 
recklessly: (1) subjects any animal to cruel mistreat-
CUI BONO 
ment; or (2) subjects any animal in his custody to cruel 
neglect; or (3) kills or injures any animal belonging to 
another without legal privilege or consent of the owner. 
Model Penal Code, § 250.11. 
Cruelty to children. Most jurisdictions have "battered 
child" statutes in which both emotional and physical 
injuries are embraced in the term "cruelty." See also 
Child abuse. 
Legal cruelty. See Legal cruelty. 
Crush. To break by means of pressure. To compress or 
bruise between two hard bodies. To squeeze or force by 
pressure so as to destroy the natural condition, shape, or 
integrity of the parts, or to force together into a mass. 
To defeat. 
Cry. To call out aloud; to proclaim; to publish; to sell 
at auction. A clamor raised in the pursuit of an escap
ing felon. See Hue and cry. 
Cry de pais, or cri de pais Ikray d� peyz/. The hue and 
cry raised by the people in ancient times, where a felony 
had been committed and the constable was absent. 
Cryer Ikray�r/. An auctioneer. One who calls out 
aloud; one who publishes or proclaims. See Crier. 
Crypta Ikript�/. A chapel or oratory underground, or 
under a church or cathedral. 
C.S.C. Civil Service Commission. 
C.T.A. An abbreviation for cum testamento annexo, in 
describing a species of administration. 
Cucking-stool. An engine of correction for common 
scolds, which in the Saxon language is said to signify the 
scolding-stool, though now it is frequently corrupted into 
ducking-stool, because the judgment was that, when the 
woman was placed therein, she should be plunged in the 
water for her punishment. It was also variously called 
a "trebucket," "tumbrel," or "castigatory." 4 Bl.Comm. 
169. 
Cuckold. A man whose wife is unfaithful; the husband 
of an adulteress. It is explained that the word alludes 
to the habit of the female cuckold, which lays her eggs 
in the nests of other birds to be hatched by them. To 
make a cuckold of a man is to seduce his wife. 
Cueillette. A term of French maritime law. See A 
cueille tte. 
Cui ante divortium Ikyuway rentiy d�v6rsh(iy)�m 
Ik(w)ayO I. (L. Lat. The full phrase was, Cui ipsa ante 
divortium contradicere non potuit , whom she before the 
divorce could not gainsay). A writ which anciently lay 
in favor of a woman who had been divorced from her 
husband, to recover lands and tenements which she had 
in fee-simple, fee-tail, or for life, from him to whom her 
husband had aliened them during marriage, when she 
could not gainsay it. 3 Bl.Comm. 183. Abolished in 
1833. 
Cui bono Ikyuway b6wnow/k(w)ayO Ik(w)ayO I. For 
whose good; for whose use or benefit. "Cui bono is ever 
of great weight in all agreements." Sometimes translat
ed, for what good, for what useful purpose.

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CUI IN VITA 
Cuicunque aliquis quid concedit concedere videtur 
et id, sine quo res ipsa esse non potuit 
Ik(yUw)ayk;}ukwiy (H�kw�s kwid k�nsiyd�t k�nsiyd�riy 
v�diyt�r et id sayniy kwow riyz ips� esiy non p6tuw�t/. 
Whoever grants anything to another is supposed to 
grant that also without which the thing itself would be 
of no effect. 
Cui in vita IkyUway �n vayt�/. (L. Lat. The full phrase 
was, Cui in vita sua ipsa contradicere non potuit , whom 
in his lifetime she could not gainsay). A writ of entry 
which lay for a widow against a person to whom her 
husband had in his lifetime aliened her lands. It was a 
method of establishing the fact of death, being a trial 
with witnesses, but without a jury. The object of the 
writ was to avoid a judgment obtained against the 
husband by confession or default. It was rendered obso
lete in England by force of 32 Hen. VIII, c. 28, § 6. 
Cui jurisdictio data est, ea quoque concessa esse 
videntur, sine quibus jurisdictio explicari non po
test Ik(yuw)ay jur�sdiksh(iy)ow deyt� est, iy� kw6wkwiy 
k�nses� esiy v�dent�r, sayniy kwib�s jur�sdiksh(iy)ow 
ekspl�keray non p6wt�st/. To whomsoever a jurisdic
tion is given, those things also are supposed to be grant
ed, without which the jurisdiction cannot be exercised. 
The grant of jurisdiction implies the grant of all powers 
necessary to its exercise. 
Cui jus est donandi, eidem et vendendi et concedendi 
jus est IkyUway j;}s est d�neenday iyayd�m et v�ndenday 
et kons�denday j;}S est/. He who has the right of giving 
has also the right of selling and granting. 
Cuilibet in arte sua perito est credendum Ikyuway
lib�t in artiy syUw� p�raytow est kr�dend�m/. Any 
person skilled in his peculiar art or profession is to be 
believed [i.e., when he speaks of matters connected with 
such art]. Credence should be given to one skilled in his 
peculiar profession. 
Cuilibet licet juri pro se introducto renunciare 
Ikyuwayl�b�t lays�t juriy prow siy intr�d;}ktow 
r�n;)nsiyeriy I. Any one may waive or renounce the 
benefit of a principle or rule of law that exists only for 
his protection. 
Cui licet quod majus, non debet quod minus est non 
licere Ikyuway lays�t kwod meyj�s, non deb�t kwod 
mayn�s est non l�siriy I. He who is allowed to do the 
greater ought not to be prohibited from doing the less. 
He who has authority to do the more important act 
ought not to be debarred from doing what is of less 
importance. 
Cui pater est populus non habet ille patrem Ikyuway 
peyt�r �st p6py�l�s non heyb�t iliy p(Hr �m/. He to 
whom the people is father has not a father. 
Cuique in sua arte credendum est Ikyuwaykwiy in 
s(y)uw� artiy kr�dend�m est/. Everyone is to be be
lieved in his own art. 
Cujus est commodum ejus debet esse incommodum 
IkyUwj�s est k6m�wd�m lYJ�S deb�t eSlY in
k6moo�m/. Whose is the advantage, his also should be 
the disadvantage. 
378 
Cujus est dare, ejus est disponere Ikyuwj�s est deriy, 
iyj�s est disp6wn�riy / . Whose it is to give, his it is to 
dispose; or, "the bestower of a gift has a right to 
regulate its disposal." 
Cujus est divisio, alterius est electio IkyUwj�s est 
d�vizh(iy)ow olt�riyis est �leksh(iy)ow/. Whichever [of 
two parties] has the division [of an estate], the choice [of 
the shares] is the other's. In partition between co
parceners, where the division is made by the eldest, the 
rule in English law is that she shall choose her share 
last. 2 Bl.Comm. 189. 
Cujus est dominium ejus est periculum Ikyuwj�s est 
d�miniy�m iyj�s est p�riky�l�m/. The risk lies upon the 
owner of the subject. 
Cujus est instituere, ejus est abrogare Ikyuwj�s est 
inst�tyuw�riy iyj�s est rebr�geriy I. Whose right it is to 
institute, his right it is to abrogate. 
Cujus est solum, ejus est usque ad crelum IkyUwj�s est 
s6wl�m, iyj�s est ;}skwiy red siyl�m/. Whose is the soil, 
his it is up to the sky. He who owns the soil, or surface 
of the ground, owns, or has an exclusive right to, every
thing which is upon or above it to an indefinite height. 
2 Bl.Comm. 18; 3 Bl.Comm. 217. 
Cujus est solum, ejus est usque ad crelum et ad 
inferos Ikyuwj�s est s6wl�m, iyj�s est ;}skwiy red siyl�m 
�d red inf�rows/. To whomsoever the soil belongs, he 
owns also to the sky and to the depths. The owner of a 
piece of land owns everything above and below it to an 
indefinite extent. 
Cujus juris (i.e., jurisdictionis) est principale, ejus
dem juris erit accessorium /kyuwj�s jur�s est 
prins�peyliy, iyj;}sd�m jur�s ehr�t reks�s6riy�m/. An 
accessory matter is subject to the same jurisdiction as its 
principal. 
Cujus per errorem dati repetitio est, ejus consulto 
dati donatio est /kyuwj�s p�r �r6r�m deytay rep�
tish(iy)ow est, lY J�S bns;}ltow deytay d�ney
sh(iy)ow est/. He who gives a thing by mistake has a 
right to recover it back; but, if he gives designedly, it is 
a gift. 
Cujusque rei potissima pars est principium 
Ikyuwj;}skwiy riyay p�tis�m� parz est prinsipiy�m/. 
The chiefest part of everything is the beginning. 
Culagium Ik�leyjiy�m/. In old records, the laying up a 
ship in a dock, in order to be repaired. 
Cui de sac Ik;}l d� seek/. (Fr. the bottom of a sack.) A 
blind alley; a street which is open at one end only. A 
street closed at one end. Beckham v. State, 64 Cal. 
App.2d 487, 149 P.2d 296, 300. 
Culpa Ik;}lp�/. Lat. A term of the civil law, meaning 
fault, neglect, or negligence. There are three degrees of 
culpa, lata culpa, gross fault or neglect; levis culpa, 
ordinary fault or neglect; levissima culpa, slight fault or 
neglect, and the definitions of these degrees are precise
ly the same as those in our law. This term is to be 
distinguished from dolus, which means fraud, guile, or 
deceit.

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379 
Culpabilis Ik;)lpeyb;)bs/. Lat. In old English law, 
guilty. Culpabilis de intrusione, guilty of intrusion. 
Non culpa bilis (abbreviated to non cul.), the plea of "not 
guilty." See Culprit. 
Culpability Ik�lp;)bil;)tiy I. Blameworthiness. Except in 
cases of absolute liability, a person's criminal culpability 
requires a showing that he acted purposely, knowingly, 
recklessly or negligently, as the law may require, with 
respect to each material element of the offense. Model 
Penal Code, § 2.02(1). 
Culpable conduct I k;}lp;)b;)l I . Blamable; censurable; 
criminal; at fault; involving the breach of a legal duty 
or the commission of a fault. That which is deserving of 
moral blame. 
Such conduct normally involves something more than 
simple negligence and implies conduct which is blama
ble, censurable, involving the breach of a legal duty or 
the commission of a fault. It implies that the act or 
conduct spoken of is reprehensible or wrong, but not 
that it involves malice or a guilty purpose. Werner v. 
Upjohn Co., Inc., C.A.Md., 628 F.2d 848, 856. 
As to culpable Homicide; Ignorance; Neglect; Negli
gence; and Wantonness, see those titles. 
Culpa caret qui scit sed prohibere non potest Ik;}lp;) 
krer;)t kway sit sed prowh;}biriy non powt;}st/. He is 
clear of blame who knows, but cannot prevent. 
Culpa est immiscere se rei ad se non pertinenti Ik;}lp;} 
est ;}mis;}riy siy riyay red siy non p�rt;}nentay/. It is a 
fault for any one to meddle in a matter not pertaining to 
him. 
Culpa in contrahendo Ik;}lp;} in kontr;}hendow/. Term 
used to describe the liability which attaches to breach of 
contract, especially a breach by the offeror after the 
offeree has begun performance in a unilateral contract 
and is stopped by the offeror before completion of the 
performance which is also the acceptance of the offer in 
a unilateral contract. 
Culpa lata dolo requiparatur Ik;}lp;} leyt;} dowlow 
ekw;}p;}reyt;}r/. Gross negligence is held equivalent to 
intentional wrong. 
Culpa tenet [teneat] suos auctores Ik;}lp;} ten;}t 
s(y)uwows oktoriyz/"teniy;)tO I. Misconduct binds 
[should bind] its own authors. It is a never-failing 
axiom that every one is accountable only for his own 
delicts. 
Culprit. One accused or charged with commission of 
crime. Also, commonly used to mean one guilty of a 
crime or fault. 
Blackstone believes this term to be an abbreviation of 
the old forms of arraignment, whereby, on the prisoner's 
pleading not guilty, the clerk would respond, "culpabi lis, 
prit", i.e., he is guilty and the crown is ready. It was (he 
says) the viva voce replication by the clerk, on behalf of 
the crown, to the prisoner's plea of non culpabili s; prit 
being a technical word, anciently in use in the formula 
of joining issue. 4 Bl.Comm. 339. The ordinary deriva
tion is from culpa. 
CUM GRANO SALIS 
Cultivator. A cropper. See Sharecropper. 
Cultura Ik;}ltyur;}I . A parcel of arable land. 
Culvertage Ik;}lv;}rt;}j/. In old English law, a base kind 
of slavery. The confiscation or forfeiture which takes 
place when a lord seizes his tenant's estate. 
Cum actio fuerit mere criminalis, institui poterit ab 
initio criminaliter vel civiliter Ik;}m reksh(iy)ow 
fyuw;}r;}t miriy krim;}neyl;}s, instityuway pot;}r;}t reb 
;}nish(iy)ow krim;}neyl;}t;}r vel s;}vil;}t;}r/. When an ac
tion is merely criminal, it can be instituted from the 
beginning either criminally or civilly. 
Cum adsunt testimonia rerum, quid opus est verbis? 
Ik;}m reds;}nt test;}mowniy;} rir;}m, kwid OWp;}s est 
v;}rb;}s/. When the proofs of facts are present, what 
need is there of words? 
Cum aliquis renunciaverit societati, solvitur societas 
Ik;}m rebkwis r;}n�nsiyeyv;}r;}t S;}Say;}teytay, solv;}t;}r 
S;}Say;}tres/. When any partner renounces the partner
ship, the partnership is dissolved. 
Cum confitente sponte mitius est agendum Ik;}m 
konf;}tentiy spontiy mish(iy);}s est ;}j€md;}m/. One con
fessing willingly should be dealt with more leniently. 
Cum copula Ik�m kopy;}l;}I . Lat. With copulation, i.e., 
sexual intercourse. Used in speaking of the validity of a 
marriage contracted "per verba de futuro cum copula," 
that is, with words referring to the future (a future 
intention to have the marriage solemnized) and consum
mated by sexual connection. 
Cum de lucro duorum qureritur, melior est causa 
possidentis Ik;}m diy l(y)uwkrow dyuwor;}m kwir;}t;}r, 
miyliy;}r est koz;} p;}sidiyent;}s/. When the question is as 
to the gain of two persons, the cause of him who is in 
possession is the better. 
Cum dividend Ikyuwm div;}dend/. Means that when a 
share of stock is sold after a dividend is declared, the 
buyer has the right to the dividend; lit., with dividend. 
See also Dividend (Cumulative dividend). 
Cum duo inter se pugnantia reperiuntur in testamen
to, ultimum ratum est Ik;}m d(y)uwow int;}r siy 
p;}gnrensh(iy);} r;}p;}riy;}nt;}r in test;}mentow, ;}It;}m;}m 
reyt;}m est/. Where two things repugnant to each other 
are found in a will, the last shall stand. 
Cum duo jura concurrunt in una persona requum est 
ac si essent in duobus Ik;}m d(y)uwow jur;} k;}nk;}r;}nt 
in yuwn;} p;}rsown;} iykw;}m est rek say es;}nt in 
d(y)uwowb;}s/. When two rights meet in one person, it 
is the same as if they were in two persons. 
Cum grano salis Ik;}m greynow seyl;}s/kum grrenow 
srel;}s/. (With a grain of salt.) With allowance for 
exaggeration. 
Cum in corpore dissentitur, apparet nullam esse ac
ceptionem Ik;}m in korp;)riy d;}sent;}t;}r, ;}prer;}t n;}l;}m 
esiy ;}ksepshiyown;}m/. When there is a disagreement 
in the substance, it appears that there is no acceptance. 
Cum in testamento ambigue aut etiam perperam 
scriptum est benigne interpretari et secundum id

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CUM ONERE 
quod credibile est cogitatum credendum est Ik�m in 
test�mEmtow rembigyuwiy ot esh(iy)�m p�rp�r�m 
skript�m est b�nigniy int;}rpr�teray et s�k�nd�m id kwod 
kr�dib�liy est koj�teyt�m kr�dEmd�m est I . Where an 
ambiguous, or even an erroneous, expression occurs in a 
will, it should be construed liberally, and in accordance 
with the testator's probable meaning. 
Cum legitimre nuptire factre sunt, patrem liberi se
quuntur Ik;}m l�jit�miy n�pshiyiy frektiy s;}nt, pretr�m 
lib�ray s�kw�nt�r I. Children born under a legitimate 
marriage follow the condition of the father. 
Cum onere Ik;}m 6wn�riy /. With the burden; subject to 
an incumbrance or charge. What is taken cum onere is 
taken subject to an existing burden or charge. 
Cum par delictum est duorum, semper oneratur pet
itor et melior habetur possessoris causa Ik;}m par 
d�likt�m est d(y)uw6r�m, semp�r own�reyt�r pet�t�r et 
miyl(i)y�r h�biyt�r powzes6r�s k6z�/. When both parties 
are in fault the plaintiff must always fail, and the cause 
of the person in possession be preferred. 
Cum pertinentiis Ik;}m p�rt�nEmshiy�s/. With the ap
purtenances. 
Cum quod ago non valet ut ago, valeat quantum 
valere potest /k�m kwod eygow non vrel�t �t eygow, 
vreliy�t kw6nt�m v�liriy p6wt�st/. When that which I 
do is of no effect as I do it, it shall have as much effect 
as it can; i.e., in some other way. 
Cum rights. Lit. with rights; a share of stock sold 
under conditions which permit the buyer to buy new 
stock of the issuer in a stated amount. 
Cum testamento annexo Ik;}m test�mentow �neksow I. 
L. Lat. With the will annexed. A term applied to 
administration granted where a testator makes an in
complete will, without naming any executors, or where 
he names incapable persons, or where the executors so 
named refuse to act. If the executor has died, an 
administrator de bonis non cum testamento annexo (of 
the goods not [already] administered upon with the will 
annexed) is appointed. Often abbreviated d. b. n. c. t. a. 
Cumulative Ikyumy�l�t�v/. Additional; heaping up; 
increasing; forming an aggregate. The word signifies 
that two things are to be added together, instead of one 
being a repetition or in substitution of the other. 
As to cumul ative Dividend, Punishment, and Stock, see 
those titles. 
Cumulative evidence. Additional or corroborative evi
dence to the same point. That which goes to prove what 
has already been established by other evidence. See 
also Corroborating evidence; 
Cumulative legacies. Legacies given in addition to a 
prior legacy, as when one legacy is given in a will and 
another legacy is given to the same person in a codicil. 
See also Legacy. 
Cumulative offense. One which can be committed only 
by a repetition of acts of the same kind but committed 
on different days or times. 
380 
Cumulative preferred dividend. Dividend on pre
ferred stock which, if declared at the end of a particular 
year, must be paid before any common stock dividend is 
paid. See also Dividend. 
Cumulative preferred stock. See Stock. 
Cumulative remedy. A remedy created by statute in 
addition to one which still remains in force. Wulff-Han
sen & Co. v. Silvers, Cal.App., 120 P.2d 677, 680. 
Cumulative sentence. Any sentence which is to take 
effect after the expiration of a prior sentence; also 
known as "from and after" sentence. See also Sentence. 
Cumulative voting. Type of voting in which a stock
holder may cast as many votes for directors as he has 
shares of stock multiplied by the number of directors to 
be elected. The stockholder may cast all his votes for 
one or more but fewer than all the directors on the slate, 
and hence, minority representation is promoted. It is a 
method of voting that allows substantial minority share
holders to obtain representation on the board of di
rectors. Cumulative voting is required under the corpo
rate laws of some states, while in most states such 
voting can be included or expressly excluded at the 
option of the corporation in its articles of incorporation. 
See, e.g., Rev.Model Bus.Corp. Act § 7.28. Compare 
Noncumula tive voting. 
A system of minority representation which is used for 
the election of members of the lower house of the Illinois 
legislature. Each voter has three votes which he may 
lump together on one candidate or distribute among two 
or three candidates as he chooses. 
Cunades Ikuwnaoes/. In Spanish law, affinity; alli
ance; relation by marriage. 
Cuneator Ikyuwniyeyd�rl Lat. Ikyuwniyeyt�r/. A coin
er. Cuneare Ikyuwniyeriy/, to coin. Cuneus 
Ikyuwniy�s/, the die with which to coin. Cuneata 
Ikyuwniyeyt�/, coined. 
Cunnilingus Ik;}n�liIJg�sl . An act of sex committed 
with the mouth and the female sexual organ. 
Cur. A common abbreviation of curia. 
Cura /kyur�/. Lat. Care; charge; oversight; guardian
ship. In the civil law a species of guardianship which 
commenced at the age of puberty (when the guardian
ship called "tutela" expired), and continued to the com
pletion of the twenty-fifth year. 
Curagulos /kyureygy�l�s/. One who takes care of a 
thing. 
Curate Ikyur�t/. In ecclesiastical law, an incumbent 
who has the cure of souls, but now generally restricted 
to signify the spiritual assistant of a rector or vicar in 
his cure. An officiating temporary minister in the Eng
lish church, who represents the proper incumbent; be
ing regularly employed either to serve in his absence or 
as his assistant, as the case may be. He may be tempo
rary or stipendiary or perpetual. 
Curateur Ikyuratyur I. In French law, a person charged 
with supervising the administration of the affairs of an

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emancipated minor, gIvmg him advice, and assisting 
him in the important acts of such administration. 
Curatio Iky;m:�yshow/. In the civil law, the power or 
duty of managing the property of him who, either on 
account of infancy or some defect of mind or body, 
cannot manage his own affairs. The duty of a curator 
or guardian. 
Curative Ikyur::lt::lv/. Intended to cure (that is, to obvi
ate the ordinary legal effects or consequences of) defects, 
errors, omissions or irregularities. The word is defined 
as relating to, or employed in, the cure of diseases; 
tending to cure; a remedy. 
Curative admissibility of evidence. The doctrine of "cur
ative admissibility" allows evidence which is otherwise 
inadmissible to be presented because similar evidence 
has been introduced by the adverse party. People v. 
Wilbert, 15 Ill.App.3d 974, 305 N.E.2d 173, 179. In some 
jurisdictions, an opponent may counter or answer evi
dence which has been admitted without objection 
though otherwise inadmissible to cure the effect of such 
evidence. This rule is not of universal application or 
acceptance. 
Curative statu te. A law, retrospective in effect, which is 
designed to remedy some legal defect in previous trans
actions. A form of retrospective legislation which 
reaches back into the past to operate upon past events, 
acts or transactions in order to correct errors and irreg
ularities and to render valid and effective many at
tempted acts which would otherwise be ineffective for 
the purpose intended. As applied to conveyances they 
supply one or more ingredients of a legal act which the 
parties intended to perform but which they failed to 
accomplish completely or which they executed only im
perfectly. 
Curator Iky�r::lt::lr/kY::lreyt::lr/. A temporary guardian or 
conservator appointed by the court to care for the prop
erty or person or both of an incompetent, spendthrift, or 
a minor. One in charge of museum, art gallery, or the 
like. 
In Louisiana, a person appointed to take care of the 
estate of an absentee. 
Curator ad hoc IkY::lreyt::lr red h6k/. A guardian or 
other person appointed to take charge or care of a single 
matter or transaction; a special guardian. 
Curator ad litem IkY::lreyt::lr ;}d layd::lm/. Guardian for 
the suit or action. 
Curator bonis IkY::lreyt::lr b6wn::ls/. In the civil law, a 
guardian or trustee appointed to take care of property in 
certain cases; as for the benefit of creditors. 
Curatorship. The office of a curator or guardian. Com
pare Tutorship. 
Curatrix I kY::lreytr::lks I . A woman who has been ap
pointed to the office of curator; a female guardian. 
Curatus non habet titulum IkY::lreyt::ls non heyb::lt 
titY::lI::lm/. A curate has no title [to tithes]. 
CURIA 
Cure. The act of healing; restoration to health from 
disease, or to soundness after injury. 
Under rule that a vessel and her owner must provide 
maintenance and "cure" for seaman injured or falling ill 
while in service, "cure" is care, including nursing and 
medical attention during such period as the duty contin
ues. Calmar S. S. Corporation v. Taylor, 303 U.S. 525, 
58 S.Ct. 651, 653, 82 L.Ed. 993. See also Maintenance 
and cure. 
The right of a seller under U.C.C. to correct a non-con
forming delivery of goods to buyer within the contract 
period. § 2-508. 
Term as used in Chapter 13 bankruptcy proceedings 
(adjustment of debts of an individual) refers to provision 
in repayment plan for "curing" defaults in debt obli
gations. Bankruptcy Code § 1322(b)(3). 
Cure by verdict. In common law pleading, the rectifica
tion or rendering nugatory of a defect in the pleadings 
by the rendition of a verdict; the court presuming after 
a verdict, that the particular thing omitted or defective
ly stated in the pleadings was duly proved at the trial. 
This function is served by Rule of Civil Procedure 15 
which permits amendment of pleadings to conform to 
the evidence. 
Cure of souls. In ecclesiastical law, the ecclesiastical or 
spiritual charge of a parish, including the usual and 
regular duties of a minister in charge. 
Curfew. A law (commonly an ordinance) which imposes 
on people (particularly children) the obligation to re
move themselves from the streets on or before a certain 
time of night. 
An institution supposed to have been introduced into 
England by order of William the Conqueror, which con
sisted in the ringing of a bell or bells at eight o'clock at 
night, at which signal the people were required to extin
guish all lights in their dwellings, and to put out or rake 
up their fires, and retire to rest, and all companies to 
disperse. The word is probably derived from the French 
couvre feu, to cover the fire. The curfew is spoken of in 
1 Social England 373, as having been ordained by Wil
liam I, in order to prevent nightly gatherings of the 
people of England. But the custom is evidently older 
than the Norman; for we find an order of King Alfred 
that the inhabitants of Oxford should at the ringing of 
that bell cover up their fires and go to bed. And there is 
evidence that the same practice prevailed at this period 
in France, Normandy, Spain, and probably in most of 
the other countries of Europe. It was doubtless intend
ed as a precaution against fires, which were very fre
quent and destructive when most houses were built of 
wood. It appears to have met with so much opposition 
that in 1103 we find Henry I, repealing the enactment of 
his father on the subject; and Blackstone says that, 
though it is mentioned a century afterwards, it is rather 
spoken of as a time of night then as a still subsisting 
custom. Shakespeare frequently refers to it in the same 
sense. 
Curia IkyuriY::l/. In old European law, a court. The 
palace, household, or retinue of a sovereign. A judicial

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tribunal or court held in the sovereign's palace. A court 
of justice. The civil power, as distinguished from the 
ecclesiastical. A manor; a nobleman's house; the hall 
of a manor. A piece of ground attached to a house; a 
yard or courtyard. A lord's court held in his manor. 
The tenants who did suit and service at the lord's court. 
A manse. 
In Roman law, a division of the Roman people, said to 
have been made by Romulus. They were divided into 
three tribes, and each tribe into ten curire, making 
thirty curire in all. The place or building in which each 
curia assembled to offer sacred rites. The place of 
meeting of the Roman senate; the senate house. The 
senate house of a province; the place where the decu
riones assembled. See Decurio. 
Curia admiralitatis /kyuriy� ,Mm�r,H�teyt�s/. The 
court of admiralty. 
Curia advisari vult /kyuriy� redv�seray v�lt/. L. Lat. 
The court will advise; the court will consider. A phrase 
frequently found in the reports, signifying the resolution 
of the court to suspend judgment in a cause, after the 
argument, until they have deliberated upon the ques
tion, as where there is a new or difficult point involved. 
It is commonly abbreviated to cur. adv. vult, or c. a. v. 
Curia baronis, or baronum /kyuriy� b�r6wn�s;ob�r6w
n�m/. In old English law, a court-baron. 
Curia cancellaria: officina justitia: /kyuriy� krens�leri
yiy of�sayn� j�stishiyiy/. The court of chancery is the 
workshop of justice. 
Curia christianitatis /kyUriy� kristiyren�teyt�s/. The 
ecclesiastical court. 
Curia claudenda /kyuriy� klodend�/. The name of a 
writ to compel another to make a fence or wall, which 
he was bound to make, between his land and the plain
tiffs. Now obsolete. 
Curia comitatus /kyuriy� kom�teyt�s/. The county 
court (q. v.). 
Curia domini /kyuriy� d6m�nay/. In old English law, 
the lord's court, house, or hall, where all the tenants 
met at the time of keeping court. 
Curia magna /kyuriy� mregn�/. In old English law, the 
great court; one of the ancient names of parliament. 
Curia majoris /kyuriy� m�j6r�s/. In old English law, 
the mayor's court. 
Curia militum /kyuriy� mn�t�m/. A court so called, 
anciently held at Carisbrook Castle, in the Isle of Wight. 
Curia palatii /kyuriy� p�leyshiyay/. In old English law, 
the palace court. It was abolished by 12 & 13 Vict., G. 
101. 
Curia parliamenti suis propriis legibus subsistit 
/kyuriy� parl(y)�mentay syuw�s pr6wpriy�s liyj�b�s 
s�bsist�t/. The court of parliament is governed by its 
own laws. 
382 
Curia pedis pulverizati /kyuriy� piyd�s p;}lv�r�zeytay /. 
In old English law, the court of piedpoudre or pie
pouders. See Court of Piepoudre. 
Curia persona: /kyuriy� p�rs6wniy / . In old records, a 
parsonage-house, or manse. 
Curia regis /kyuriy� riyj�s/. The king's court. A term 
applied to the aula regis, the bancus, or communis 
bancus, and the iter or eyre, as being courts of the king, 
but especially to the aula regis (which title see). 
Curing title. Removal of defects from land title which 
render such unmarketable. "Clearing", "curing", 
"straightening out", or "removing cloud from" title de
notes acts or proceedings necessary to render title mar
ketable. See Action to quiet title. 
Curiosa et captiosa interpretatio in lege reprobatur 
/kyuriy6ws� et krepshiy6ws� int;}rpr�teysh(iy)ow in liyjiy 
repr�beyt�r/. A curious [overnice or subtle] and cap
tious interpretation is reprobated in law. 
Curnock /k�rn�k/. In old English law, a measure con
taining four bushels or half a quarter of corn. 
Currency. Coined money and such banknotes or other 
paper money as are authorized by law and do in fact 
circulate from hand to hand as the medium of exchange. 
See also Blocked currency; Comptroller of Currency; Cur
rent money; Legal tender. 
Current. Running; now in transit; present existence; 
now in progress; whatever is at present in course of 
passage, as "the current month." American Fruit 
Growers v. United States, C.C.A.Cal., 105 F.2d 722, 726. 
Most recent; up-to-date. 
A continuous movement in the same direction, as a 
fluid stream. Buckeye Incubator Co. v. Blum, D.C.Ohio, 
17 F.2d 456, 458. 
Passing in time or belonging to the time actually 
passing. Now passing or present in its course, as the 
current month, and as applied to current obligations it 
denotes the obligations then passing or present in its 
progress, the service rendered and the compensation 
therefor measured by the time of the occurrence of the 
event. 
The word "current", when used as an adjective, has 
many meanings, and definition depends largely on word 
which it modifies, or subject-matter with which it is 
associated. Commissioner of Internal Revenue v. Kel
ler, C.C.A., 59 F.2d 499, 50 1. See e.g. usages that follow 
below. 
Current account. An open, running, or unsettled ac
count between two parties. 
Current assets. Any property that will be or could be 
converted into cash in the normal operation of a busi
ness or at an earlier date, usually within one year. 
Short-term assets; e.g. cash, accounts receivable, inven
tory. 
Current expenses. Ordinary, regular, recurring, and 
continuing expenditures for the maintenance of proper
ty, the carrying on of a business, an office, municipal 
government, etc.

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383 
Current funds. Cash and other assets readily convert
ible into cash. Money which circulates as legal tender. 
Formerly, this phrase meant gold or silver, or something 
equivalent thereto, and convertible at pleasure into coin 
money. Bull v. First National Bank, 123 U.S. 105, 8 
S.Ct. 62, 31 L.Ed. 97. See Current money. 
Current income. Income which is due within the 
present accounting period. 
Current liabilities. An obligation that will be paid in 
the ordinary course of a business or within one year. A 
current liability is paid by expending a current asset. 
The phrase "current liability" carries with it the idea of 
a liability that is presently enforceable. Warren Co. v. 
Commissioner of Internal Revenue, C.A.Ga., 135 F.2d 
679, 684, 685. 
Current maintenance. The expense occasioned in keep
ing the physical property in the condition required for 
continued use during its service life. Lindheimer v. 
Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 
L.Ed.1182. 
Current market value. The value of an asset which 
may be realized by liquidation within the present ac
counting period. Present value which may be realized 
in an arms length transaction between a willing buyer 
and a willing seller. See also Fair market value. 
Current money. The currency of the country; whatever 
is intended to and does actually circulate as currency; 
every species of coin or currency. In this phrase the 
adjective "current" is not synonymous with "convert
ible". It is employed to describe money which passes 
from hand to hand, from person to person, and circu
lates through the community, and is generally received. 
Money is current which is received as money in the 
common business transactions, and is the common medi
um in barter and trade. See also Currency; Legal tender. 
Current obligations. Such as are presently enforceable 
and not past due. Naylor v. Gutteridge, Tex.Civ.App., 
430 S.W.2d 726, 733. See also Current liabilities. 
Current price. This term means the same as "market 
value", "market price", "going price", the price that 
runs or flows with the market. See also Current market 
value; Fair market value. 
Current revenues. See Current income. 
Current value. See Current market value; Fair market 
value. 
Current wages. Such as are paid periodically, or from 
time to time as the services are rendered or the work is 
performed; more particularly, wages for the current 
period, hence not including such as are past-due or 
deferred. See also Minimum wage. 
Current year. The year now running. Ordinarily, a 
calendar year in which the event under discussion took 
place; though the current fiscal year of a business may 
run from JUly 1st to June 30th, or some other twelve 
month period. 
CURTESY 
Curriculum. The set of studies or courses for a particu
lar period, designated by a school or branch of a school. 
Currit quatuor pedibus /k�hr;}t kwotuw;}r pM;}b;}s/. L. 
Lat. It runs upon four feet; or, as sometimes expressed, 
it runs upon all fours. A phrase used in arguments to 
signify the entire and exact application of a case quoted. 
"It does not follow that they run quatuor pedibus." 
Currit tempus contra desides et sui juris con
temptores /k�r;}t temp;}S kontr;} diys;}diyz et syuway 
jur;}s kontem(p)toriyz/. Time runs against the slothful 
and those who neglect their rights. 
Cursing. Malediction; imprecation; execration; pro
fane words intended to convey hate and to invoke harm; 
swearing. 
Cursitor baron /k�rs;}t;}r brer;}n/. In old English law, an 
officer of the court of exchequer, who is appointed by 
patent under the great seal to be one of the barons of 
the exchequer. The office was abolished by St. 19 & 20 
Vict., c. 86. 
Cursitors /k�rs;}t;}rz/. In old English law, clerks in the 
chancery office, whose duties consisted in drawing up 
those writs which were of course, de cursu, whence their 
name. They were abolished by St. 5 & 6 Wm. IV, c. 82. 
Cursor /k�rs;}r / . An inferior officer of the papal court. 
Cursory examination /k�rs(;})riy ;}gzrem;}neysh;}n/. An 
inspection for defects visible or ascertainable by ordi
nary examination; contrasted from a thorough examina
tion. 
Cursus curiee est lex curlee /k�rs;}s kyu.riyiy est leks 
kyuriyiy / . The practice of the court is the law of the 
court. 
Curtail. To cut off the end or any part of; hence to 
shorten, abridge, diminish, lessen, or reduce; and term 
has no such meaning as abolish. State v. Edwards, 207 
La. 506, 21 So.2d 624, 625. 
Curtesy /k�rt;}siy /. The estate to which by common law 
a man is entitled, on the death of his wife, in the lands 
or tenements of which she was seised in possession in 
fee-simple or in tail during her coverture, provided they 
have had lawful issue born alive which might have been 
capable of inheriting the estate. It is a freehold estate 
for the term of his natural life. 
In some jurisdictions, there is no requirement that 
issue be born of the union. This estate has gradually 
lost much of its former value and now in some jurisdic
tions it attaches only to the real estate which the wife 
owns at death, rather than to the real estate owned by 
the wife during the marriage, while in most states it has 
been abolis.hed or otherwise materially altered. 
See also Dower. 
Initiate and consummate. Curtesy initiate is the inter
est which a husband has in his wife's estate after the 
birth of issue capable of inheriting, and before the death. 
of the wife; after her death, it becomes an estate "by the

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curtesy consummate." Hopper v. Gurtman, 126 N.J. 
263, 18 A.2d 245, 246, 250. 
Curtilage Ik;)rt;:)l;:)j/. A word derived from the Latin 
cohors (a place enclosed around a yard) and the old 
French cortilliage or courtillage which today has been 
corrupted into court-yard. Originally, it referred to the 
land and outbuildings immediately adjacent to a castle 
that were in turn surrounded by a high stone wall; 
today, its meaning has been extended to include any 
land or building immediately adjacent to a dwelling, and 
usually it is enclosed some way by a fence or shrubs. 
V.S v. Romano, D.C.Pa., 388 F.Supp. 101, 104. 
For search and seizure purposes, includes those out
buildings which are directly and intimately connected 
with the habitation and in proximity thereto and the 
land or grounds surrounding the dwelling which are 
necessary and convenient and habitually used for family 
purposes and carrying on domestic employment. State 
v. Hanson, 113 N.H. 689, 313 A.2d 730, 732. 
Curtiles terrre Ik;:)rbiyliyz tehriy/. In old English law, 
court lands. See Court lands. 
Curtillium Ik;:)rtil(i)y;:)m/. A curtilage (q.v.); the area or 
space within the inclosure of a dwellinghouse. 
Curtis I k;)rt;:)s I . A garden; a space about a house; a 
house, or manor; a court, or palace; a court of justice; a 
nobleman's residence. 
Custa Ik;)st;:)/, custagium I kesteyj (iy);:)m I , custantia 
Ik;)strensh(iy);:)/. Costs. 
Custode admittendo, custode amovendo Ik;)st;:)diy 
,edm;:)tendow, k;)st;:)diy eym;:)vendow/. Writs for the ad
mitting and removing of guardians. 
Custodes Ik;:)stowdiyz/. In Roman law, guardians; ob
servers; inspectors. Persons who acted as inspectors of 
elections, and who counted the votes given. 
In old English law, keepers; guardians; conservators. 
Custodes libertatis anglire auctoritate parliamenti 
Ik;:)stowdiyz lib;:)rteyt;:)s rel)gliyiy oktor;:)teytiy 
parl(y);:)mentay I. The style in which writs and all judi
cial processes were made out during the great revolu
tion, from the execution of King Charles I, till Oliver 
Cromwell was declared protector. 
Custodes pacis Ik;:)stowdiyz peys;:)sl. Guardians of the 
peace. 1 BI.Comm. 349. 
Custodial account. An account established on behalf of 
someone else. For example, when a parent opens an 
account for a minor child, or when a son or daughter 
opens and controls a bank account of an infirm parent. 
Custodial arrest. Confinement or detention by police or 
government authorities during which a person is enti
tled to certain warnings as to his rights when ques
tioned. Miranda v. Arizona, 384 V.S. 436, 86 S.Ct. 1602, 
16 L.Ed.2d 694. See Custodial interrogation. 
Custodia legis Ik;:)stowdiy;:) liyj;:)sl. In the custody of the 
law. Doctrine of "custodia legis" provides that when 
personal property is repossessed under writ of replevin, 
property is considered to be in custody of the court, 
384 
though actual possession may be in either of the parties 
to the replevin action, and that property remains in 
custody of court until judgment in replevin action final
ly determines whether replevining party or prior holder 
is entitled to possession. Brunswick Corp. v. J & P, Inc., 
C.A.Okl., 424 F.2d 100, 102. This doctrine is nothing 
more than a practical "first come, first serve" method of 
resolving jurisdictional disputes between two courts with 
concurrent jurisdiction, and, under such doctrine, court 
that first secures custody of property administers it. 
Coastal Production Credit Ass'n v. Oil Screw "Santee", 
D.C.Ga., 51 B.R. 1018, 1020. 
Custodial interrogation. Custodial interrogation, with
in Miranda rule requiring that defendant be advised of 
his constitutional rights, means questioning initiated by 
law enforcement officers after person has been taken 
into custody or otherwise deprived of his freedom in any 
significant way; custody can occur without formality of 
arrest and in areas other than in police station. Mi
randa v. Arizona, 384 V.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 
694; Brewer v. Williams, 430 V.S. 387, 97 S.Ct. 1232. 
See Interrogation; Miranda Rule. 
Custodiam lease Ik;:)stowdiy;:)m liysl. In old English 
law, a grant from the crown under the exchequer seal, 
by which the custody of lands, etc., seised in the king's 
hands, was demised or committed to some person as 
custodee or lessee thereof. 
Custodian. General term to describe person or financial 
institution that has charge or custody of property, secu
rities, papers, assets, etc. 
In bankruptcy proceedings, refers to a third party (e.g. 
receiver or trustee) acting under mandatory authority 
who takes charge of debtor's assets for the benefit of 
debtor's creditors as a whole. In re Cash Currency 
Exchange, Inc., D.C.IlI., 37 B.R. 617, 627. See Bankrupt
cy Code § 101 (11 V.S.C.A.). 
Custody. The care and control of a thing or person. 
The keeping, guarding, care, watch, inspection, preserva
tion or security of a thing, carrying with it the idea of 
the thing being within the immediate personal care and 
control of the person to whose custody it is sub jected. 
Immediate charge and control, and not the final, abso
lute control of ownership, implying responsibility for the 
protection and preservation of the thing in custody. 
Also the detainer of a man's person by virtue of lawful 
process or authority. 
The term is very elastic and may mean actual impris
onment or physical detention or mere power, legal or 
physical, of imprisoning or of taking manual possession. 
Within statute requiring that petitioner be "in custody" 
to be entitled to federal habeas corpus relief does not 
necessarily mean actual physical detention in jail or 
prison but rather is synonymous with restraint of liber
ty. V. S. ex reI. Wirtz v. Sheehan, D.C.Wis., 319 F.Supp. 
146,147. Accordingly, persons on probation or parole or 
released on bail or on own recognizance have been held 
to be "in custody" for purposes of habeas corpus proceed
ings.

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385 
See Chain of custody; Custodial interrogation; Custody 
of children; In custody; Pare mal Kidnapping Prevention 
Act; Protective custody. 
Custody account. A type of agency account in which 
the custodian has the obligation to preserve and safe
keep the property entrusted to him for his principal. 
Custody of children. The care, control and mainte
nance of a child which may be awarded by a court to one 
of the parents as in a divorce or separation proceeding. 
See also Guardianship; Parental Kidnapping Prevention 
Act. 
Divided custody. Divided custody is where child lives 
with each parent part of the year with reciprocal visita
tion privileges; in divided custody, parent with whom 
child is living has complete control over child during 
that period. In re Marriage of Ginsberg, Ind.App., 425 
N .E.2d 656, 658. 
Jo int custody. Joint custody involves both parents shar
ing responsibility and authority with respect to the 
children; it may involve joint "legal" custody and joint 
"physical" custody. In re Marriage of Ginsberg, Ind. 
App., 425 N.E.2d 656,658. Such includes physical shar
ing of child in addition to both parents participating in 
decisions affecting child's life, e.g., education, medical 
problems, recreation, etc.; "joint custody" does not 
mean fifty-fifty sharing of time, since each case depends 
on child's age, parent's availability and desires, and 
other factors. Plemer v. Plemer, La.App. 4 Cir., 436 
So.2d 1348, 1349. 
Temporary custody. Awarding of custody of a child to a 
parent temporarily, pending the outcome of a separation 
or divorce action. 
The care, control and maintenance of a child which 
may be awarded by a court to one of the parents as in a 
divorce or separation proceeding. 
Uniform Child Custody Jurisdiction Act. A uniform law 
adopted in all states, cf. N.Y. McKinney's Domestic 
Relations Law, §§ 75-a to 75-z, to deal with multi-state 
child custody and visitation disputes. Enacted in part to 
deter parental kidnapping, it generally recognizes juris
diction in a child's "home state." 
Custody of the law. Property is in the custody of the 
law when it has been lawfully taken by authority of 
legal process, and remains in the possession of a public 
officer (as a sheriff) or an officer of a court (as a receiver) 
empowered by law to hold it. See Forfeiture; Seizure. 
Custom. Term generally implies habitual practice or 
course of action that characteristically is repeated in 
like circumstances. Jones v. City of Chicago, C.A.7 Ill., 
787 F.2d 200, 204. See also Custom and usage. 
Custom and usage. A usage or practice of the people, 
which, by common adoption and acquiescence, and by 
long and unvarying habit, has become compulsory, and 
has acquired the force of a law with respect to the place 
or subject-matter to which it relates. It results from a 
long series of actions, constantly repeated, which have, 
by such repetition and by uninterrupted acquiescence, 
CUSTOMARY FREEHOLD 
acquired the force of a tacit and common consent. 
Louisville & N. R. Co. v. Reverman, 243 Ky. 702, 49 
S.W.2d 558, 560. An habitual or customary practice, 
more or less widespread, which prevails within a geo
graphical or sociological area; usage is a course of 
conduct based on a series of actual occurrences. Corbin
Dykes Elec. Co. v. Burr, 18 Ariz.App. 101, 500 P.2d 632, 
634. 
Parol evidence rule does not bar evidence of custom or 
usage to explain or supplement a contract or memoran
dum of the parties. U.C.C. § 2-203. 
Classification. Customs are general, local or particular. 
General customs are such as prevail throughout a coun
try and become the law of that country, and their 
existence is to be determined by the court. Or as 
applied to usages of trade and business, a general cus
tom is one that is followed in all cases by all persons in 
the same business in the same territory, and which has 
been so long established that persons sought to be 
charged thereby, and all others living in the vicinity, 
may be presumed to have known of it and to have acted 
upon it as they had occasion. Local customs are such as 
prevail only in some particular district or locality, or in 
some city, county, or town. Particular customs are 
nearly the same, being such as affect only the inhab
itants of some particular district. 
Usage distinguished. "Usage" is a repetition of acts, 
and differs from "custom" in that the latter is the law or 
general rule which arises from such repetition; while 
there may be usage without custom, there cannot be a 
custom without a usage accompanying or preceding it. 
U. S. for Use of E & R Const. Co., Inc. v. Guy H. James 
Const. Co., D.C.Tenn., 390 F.Supp. 1193, 1209. See also 
Usage. 
Customarily. Means usually, habitually, according to 
the customs; general practice or usual order of things; 
regularly. Fuller Brush Co. v. Industrial Commission of 
Utah, 99 Utah 97, 104 P.2d 201, 203. 
Customary. According to custom or usage; founded on, 
or growing out of, or dependent on, a custom (q.v.); 
ordinary; usual; common. 
Customary court-baron. See Court-baron. 
Customary dispatch. Due diligence according to law
ful, reasonable and well-known custom of port or ports 
involved. Context and conditions existing or contem
plated will, of course, affect the meaning of the phrase. 
Taisho Kaiun Kabushiki Kaisha v. Gano Moore Co., 
D.C.Del., 14 F.2d 985, 986. 
Customary estates. Estates which owe their origin and 
existence to the custom of the manor in which they are 
held. 2 Bl.Comm. 149. 
Customary freehold. In old English law, a variety of 
copyhold estate, the evidences of the title to which are to 
be found upon the court rolls; the entries declaring the 
holding to be according to the custom of the manor, but 
it is not said to be at the will of the lord. The incidents 
are similar to those of common or pure copyhold.

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CUSTOMARY INTERPRETATION 
Customary interpretation. See Interpretation. 
Customary services. Such as are due by ancient cus
tom or prescription only. 
Customary tenants. Tenants holding by custom of the 
manor. 
Custom duties. See Customs duties. 
Customer. One who regularly or repeatedly makes pur
chases of, or has business dealings with, a tradesman or 
business. Aiken Mills v. United States, D.C.S.C., 53 
F.Supp. 524, 526; Arkwright Corporation v. United 
States, D.C.Mass., 53 F.Supp. 359, 361. Ordinarily, one 
who has had repeated business dealings with another. 
A buyer, purchaser, consumer or patron. 
In banking, any person having an account with a bank 
or for whom a bank has agreed to collect items and 
includes a bank carrying an account with another bank. 
U.C.C. § 4-104(e). As to letters of credit, a buyer or 
other person who causes an issuer to issue credit or a 
bank which procures issuance or confirmation on behalf 
of that bank's customer. U.C.C. § 5-103(g). 
Customers' goods. This term as used in statement of 
claim on fire policy referring to merchandise destroyed 
as "customers' goods," in its ordinary sense, means 
goods belonging to insured's customers in his custody as 
a bailee for the purpose of his trade. 
Customers' man. One who has duty to greet customers 
of broker, when they appear in office on business, to 
assist them in placing their orders, and generally to see 
that their wants are taken care of. Fenner & Beane v. 
Lincoln, Tex.Civ.App., 101 S.W.2d 305, 308. An employ
ee of a brokerage house who solicits or processes orders 
from the investing public for the purchase and sale of 
commodities and securities to be executed upon various 
commodities and securities exchanges. Such persons 
also give investment advice to customers about the pur
chase and sale of securities. Clothier v. Beane, 187 Ok!. 
693, 105 P.2d 752, 756. 
Custome serra prise stricte Ik�st;} sehr;} prayz(iy) 
strikt(iy)I . Custom shall be taken [is to be construed] 
strictly. 
Custom-house. The house or office where commodities 
are entered for importation or exportation; where the 
duties, bounties, or drawbacks payable or receivable 
upon such importation or exportation are paid or re
ceived; and where ships are cleared out, etc. A public 
establishment for the inspection and assessment of 
duties on imported goods. See also Bureau of Customs· 
Customs broker; Customs Service. 
' 
Custom-house broker. One whose occupation it is, as 
an agent, to arrange entries and other custom-house 
papers, or transact business, at any port of entry, relat
ing to the importation or exportation of goods, wares, or 
merchandise. A person authorized by the commission
ers of customs to act for parties, at their option, in the 
entry or clearance of ships and the transaction of gener
al business. 
386 
Customs. This term is usually applied to those taxes 
which are payable upon goods and merchandise import
ed or exported. Pollock v. Farmer's Loan & Trust Co., 
158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108. The duties, 
toll, tribute, or tariff payable upon merchandise export
ed or imported. Federal agency responsible for assess
ing imported goods collecting duties. See 19 U.S.C.A. 
See also Customs duties; Custom-house; Customs Ser
vice; Tariff. 
Customs and Patent Appeals Court. This court was 
established in 1929 under Article III of the Constitution 
of the United States as successor to the United States 
Court of Customs Appeals. The Court was abolished by 
the Federal Courts Improvement Act of 1982. Matters 
formerly handled by this Court are now under the 
jurisdiction of the United States Court of Appeals for 
the Federal Circuit. See Courts of Appeals, U.S. See 
also Court of International Trade. 
Customs broker. Licensed agent or broker whose func
tion is to handle the process of clearing goods through 
customs. 
Customs Court. A court created in 1890 as the Board of 
United States General Appraisers and given this name 
in 1926. The name of the Court was changed in 1980 to 
the Court of International Trade. See that Court. 
Customs duties. Taxes on the importation and exporta
tion of commodities, merchandise and other goods. The 
tariff or tax assessed upon merchandise, imported from, 
or exported to a foreign country. See 19 U.S.C.A. 
Tax levied by federal government on goods shipped 
into U.S., though in other countries it may include 
export taxes as well. See also Customs; Tariff. 
Customs House. See Custom-house; Customs Service. 
Customs Service. The United States Customs Service 
collects the revenue from imports and enforces customs 
and related laws and also administers the Tariff Act of 
1930, as amended, and other customs laws. Some of the 
responsibilities which the Customs Service is specifically 
charged with are as follows: properly assessing and 
collecting customs duties, excise taxes, fees, and penal
ties due on imported merchandise; interdicting and 
seizing contraband, including narcotics and illegal 
drugs; processing persons, carriers, cargo, and mail into 
and out of the United States; administering certain 
navigation laws; detecting and apprehending persons 
engaged in fraudulent practices designed to circumvent 
customs and related laws; protecting American business 
and labor by enforcing statutes and regulations such as 
the Anti-dumping Act; countervailing duty; copyright, 
patent, and trademark provisions; quotas; and marking 
requirements for imported merchandise. See also Bu
reau of Customs; Custom-house. 
Custos Ik�st;}s/. Lat. A custodian, guard, keeper, or 
warden; a magistrate. 
Custos brevium Ik�st;}s briyviy;}m/. In England, the 
keeper of the writs. A principal clerk belonging to the 
courts of queen's bench and common pleas, whose office

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387 
it was to keep the writs returnable into those courts. 
The office was abolished by 1 Wm. IV, c. 5. 
Custos ferarum Ik�st;}s f;}rer;}m/. A gamekeeper. 
Custos horrei regii Ik�st;}s hohriyay riyjiyay I. In old 
English law, protector of the royal granary. 2 Bl.Comm. 
394. 
Custos maris Ik�st;}s mrer;}s/. In old English law, ward
en of the sea. The title of a high naval officer among 
the Saxons and after the Conquest, corresponding with 
admiral. 
Custos morum Ik�st;}s mor;}m/. The guardian of mor
als. The court of queen's bench has been so styled. 
Custos placitorum coronre Ik�st;}s plres;}tor;}m k;}row
niy/. In old English law, keeper of the pleas of the 
crown. Cowell supposes this office to have been the 
same with the custos rotulorum. But it seems rather to 
have been another name for "coroner." 
Custos rotulorum Ik�st;}s roty;}lor;}m/. Keeper of the 
rolls. An officer in England who had the custody of the 
rolls or records of the sessions of the peace, and also of 
the commission of the peace itself. He was always a 
justice of the quorum in the county where appointed and 
was the principal civil officer in the county. 1 Bl.Comm. 
349; 4 Bl.Comm. 272. 
Custos spiritualium Ik�st;}s spir;}tyuweyliy;}m/. In Eng
lish ecclesiastical law, keeper of the spiritualities. He 
who exercised the spiritual jurisdiction of a diocese 
during the vacancy of the see. 
Custos statum hreredis in custodia existentis melior
em, non deteriorem, facere potest Ik�st;}s steyt;}m 
h;}riyd;}s in k;}stowdiy;} egz;}stent;}s miyliyor;}m, non 
d;}tiriyor;}m, feys;}riy powt;}st/. A guardian can make 
the estate of an existing heir under his guardianship 
better, not worse. 
Custos temporalium Ik�st;}s temp;}reyliy;}m/. In Eng
lish ecclesiastical law, the person to whom a vacant see 
or abbey was given by the king, as supreme lord. His 
office was, as steward of the goods and profits, to give an 
account to the escheator, who did the like to the excheq
uer. 
Custos terrre Ik�st;}s tehriy/. In old English law, guardi
an, warden, or keeper of the land. 
Custuma antiqua sive magna Ik�sty;}m;} rentaykw;} say
viy mregn;} I . (Lat. Ancient or great duties.) In old 
English law, the duties on wool, sheepskin, or wool-pelts 
and leather exported were so called, and were payable 
by every merchant, stranger as well as native, with the 
exception that merchant strangers paid one-half as 
much again as natives. 1 Bl.Comm. 314. 
Custuma parva et nova Ik�sty;}m;} parv;} et nowv;} I . 
(Small and new customs.) Imposts of 3d. in the pound, 
due formerly in England from merchant strangers only, 
for all commodities, as well imported as exported. This 
was usually called the "aliens duty," and was first 
granted in 31 Edw. I. 1 Bl.Comm. 314. 
CY·PRES 
Cut. To penetrate, separate or lacerate as with a sharp 
instrument. To shorten or reduce in content, time or 
amount. To divide into parts or segments. One's share 
of something. 
Cuth, couth IkuwOI. Sax. Known, knowing. Uncuth, 
unknown. See Couthutlaugh; Uncuth. 
Cuthred Ik�Or;}d/. A knowing or skillful counsellor. 
Cut-over land. Land which has been logged; from 
which desired timber has been removed. 
Cutpurse Ik�tp�rs/. One who steals by the method of 
cutting purses; a common practice in old England when 
men wore their purses at their girdles, as was once the 
custom. 
Cutter of the tallies Ik�t;}r ;}v d;} treliyz/. In old English 
law, an officer in the exchequer, to whom it belonged to 
provide wood for the tallies, and to cut the sum paid 
upon them, etc. 
CW A. See Clean Water Acts. 
CWAS. Contractor Weighted Average Share In Cost 
Risk. 
Cwt. A hundred-weight. 
Cy I siy I. In law French, here. (Cy-apres I siy;}prey I, 
hereafter; cy-devant Isiy d;}von/, heretofore.) Also as, 
so. 
Cycle. A measure of time; a space in which the same 
revolutions begin again; a periodical space of time. 
Cyne-bot Ikin;}bowt/, or cyne-gild I kin;}gild I . In feudal 
law, the portion belonging to the nation of the mulct for 
slaying the king, the other portion or were being due to 
his family. 
Cynebote Ikin;}bowt/. A mulct anciently paid by one 
who killed another, to the kindred of the deceased. 
Cyphonism Isayf;}niz;}m/. That kind of punishment 
used by the ancients, and later by the Chinese, called by 
Staunton the "wooden collar," by which the neck of the 
malefactor is bent or weighed down. 
Cy-pres Isiyprey/. As near as (possible). The rule of 
cy-pres is a rule for the construction of instruments in 
equity, by which the intention of the party is carried out 
as near as may be, when it would be impossible or illegal 
to give it literal effect. Thus, where a testator attempts 
to create a perpetuity, the court will endeavor, instead 
of making the devise entirely void, to explain the will in 
such a way as to carry out the testator's general inten
tion as far as the rule against perpetuities will allow. 
So in the case of bequests to charitable uses; and partic
ularly where the language used is so vague or uncertain 
that the testator's design must be sought by construc
tion. 
Equitable power which makes it possible for court to 
carry out testamentary trust established for particular 
charitable purpose if testator has expressed general 
charitable intent, and for some reason his purpose can
not be accomplished in manner specified in the will. In 
re Gatlin's Estate, 16 C.A.3d 644, 94 Cal.Rptr. 295, 296.

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CYRICBRYCE 
Cyricbryce /ch�r(�)chbriych/. A breaking into a 
church. 
Cyricsceat / ch�r(�)chshiyt/. (From eyrie, church, and 
sceat, a tribute). In Saxon law, a tribute or payment 
due to the church. 
Cyrographarius /sayr;;')gr;;')feriy;;')s/. In old English law, 
a cyrographer; an officer of the bancus, or court of 
common bench. 
Cyrographum /sayrogr;;')f;;')m/. A chirograph. 
Czar Izar/(t)sar/. (Also written zar, tsar, tzar, etc.) The 
title of the former emperors of Russia, derived from the 
old Slavonic cesar, king or emperor, which, although 
long held to be derived from the Roman title Caesar, is 
almost certainly of Tartar origin. The Slavonic word 
ultimately represents the Latin Caesar, but came 
through the medium of a Germanic language in which 
the word had the general sense uemperor.u 
388 
In the beginning of the 10th century the Bulgarian 
prince Symeon assumed this title, which remained at
tached to the Bulgarian crown. In 1346 it was adopted 
by Stephen Duschan, king of Serbia. Among the Rus
sians the Byzantine emperors were so called, as were 
also the khans of the Mongols that ruled in Russia. 
Ivan III, grand prince of Moscow, held the title, and Ivan 
IV, the Terrible, in 1547, caused himself to be crowned 
as czar. In 1721 the Senate and clergy conferred on 
Peter I, in the name of the nation, the title Emperor of 
Russia, for which in Russia the Latin word imperator is 
used. Peter the Great introduced the title imperator, 
uemperor,u and the official style then became uEmperor 
of all the Russias, Tsar of Poland, and Grand Duke of 
Finlandu; but the Russian popular appellation contin
ued to be tsar (the preferable modern spelling). The last 
tsar was Nicholas II, who abdicated on March 15, 1917, 
and was later executed.

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D 
The letter "D" is used as an abbreviation for a num
ber of words, the more important and usual of which are 
as follows: 
1. Digestum, or Digesta, that is, the Digest or Pan
dects in the Justinian collections of the civil law. Cita
tions to this work are sometimes indicated by this abbre
viation, but more commonly by "Dig." 
2. Dictum. A remark or observation, as in the 
phrase "obiter dictum " (q.v.). 
3. Demissione. "On the demise." An action of eject
ment is entitled "Doe d. Stiles v. Roe;" that is, "Doe, 
on the demise of Stiles, against Roe." 
4. "Doctor. " As in the abbreviated forms of certain 
academical degrees. "M.D.," "doctor of medicine;" "LL. 
D.," "doctor of laws;" "D.C.L.," "doctor of civil law"; 
"J.D.," "juris doctor." 
5. "District. " Thus, "U.S. Dist. Ct. W.D. Pa." stands 
for United States District Court for the Western District 
of Pennsylvania. 
In the Roman system of notation, this letter stands for 
five hundred; and, when a horizontal dash or stroke is 
placed above it, it denotes five thousand. 
Dabis? dabo Ideyb;}s? deybow/. Lat. (Will you give? 
I will give.) In the Roman law, one of the forms of 
making a verbal stipulation. 
Dacion Idasyown/. In Spanish law, the real and effec
tive delivery of an object in the execution of a contract. 
Dactylography I drekt;}logr;}fiy I. Dactylography is the 
scientific study of finger prints as a means of identifica
tion. 
Daily. Every day; every day in the week; every day in 
the week except one. A newspaper which is published 
six days in each week has been held to be a "daily" 
newspaper. 
Daily balances; average daily balance. The various 
balances for the different days in the period for which 
interest is to be paid, and the "average daily balance" 
for the interest period means the sum of these daily 
balances divided by the number of days in the interest 
period. 
Daily occupation. The same as "usual occupation". 
International Brotherhood of Boiler Makers, Iron Ship
builders & Helpers of America v. Huval, 133 Tex. 136, 
126 S.W.2d 476, 478. 
Daily rate of pay. Obtained by multiplying hourly rate 
by number of hours in normal working day, though 
actual number of hours worked may be fewer. 
Dale and sale. Fictitious names of places, used in the 
English books, as examples "The manor of Dale and the 
manner of Sale, lying both in Vale." 
Dalus, dailus, dailia I deyl;}s, deyliy;}(s)I . A certain mea
sure of land; such narrow slips of pasture as are left 
between the plowed furrows in arable land. 
Damage. Loss, injury, or deterioration, caused by the 
negligence, design, or accident of one person to another, 
in respect of the latter's person or property. The word 
is to be distinguished from its plural, "damages", which 
means a compensation in money for a loss or damage. 
An injury produces a right in them who have suffered 
any damage by it to demand reparation of such damage 
from the authors of the injury. By damage we under
stand every loss or diminution of what is a man's own, 
occasioned by the fault of another. The harm, detri
ment, or loss sustained by reason of an injury. See also 
Damages; Damage to person; Injury; Loss. 
Damage-cleer. In old English law, a fee assessed of the 
tenth part in the common pleas, and the twentieth part 
in the queen's bench and exchequer, out of all damages 
exceeding five marks recovered in those courts, in ac
tions upon the case, covenant, trespass, etc., wherein the 
damages were uncertain; which the plaintiff was 
obliged to pay to the prothonotary or the officer of the 
court wherein he recovered, before he could have execu
tion for the damages. This was originally a gratuity 
given to the prothonotaries and their clerks for drawing 
special writs and pleadings; but it was taken away by 
statute, since which, if any officer in these courts took 
any money in the name of damage-cleer, or anything in 
lieu thereof, he forfeited treble the value. 
Damage feasant or faisant I dremaj fiyz;}nt/. Doing 
damage. A term formerly applied to a person's cattle or 
beasts found upon another's land, doing damage by 
treading down the grass, grain, etc. 3 Bl.Comm. 7, 211. 
This phrase seems to have been introduced in the reign 
of Edward III, in place of the older expression ''l!n son 
dama ge" (in damno suo). 
Damages. A pecuniary compensation or indemnity, 
which may be recovered in the courts by any person who 
has suffered loss, detriment, or injury, whether to his 
person, property, or rights, through the unlawful act or 
omission or negligence of another. A sum of money 
awarded to a person injured by the tort of another. 
Restatement, Second, Torts, § 12A. Money compensa
tion sought or awarded as a remedy for a breach of 
contract or for tortious acts. 
389

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DAMAGES 
Damages may be compensatory or punitive according 
to whether they are awarded as the measure of actual 
loss suffered or as punishment for outrageous conduct 
and to deter future transgressions. Nominal damages 
are awarded for the vindication of a right where no real 
loss or injury can be proved. Generally, punitive or 
exemplary damages are awarded only if compensatory 
or actual damages have been sustained. 
See also Economic loss; Injury; Just compensation; 
Loss; Pain and suffering. 
Actual dama ges. Real, substantial and just damages, or 
the amount awarded to a complainant in compensation 
for his actual and real loss or injury, as opposed on the 
one hand to "nominal" damages, and on the other to 
"exemplary" or "punitive" damages. Synonymous with 
"compensatory damages" and with "general damages." 
Benefit-of-the-bargain dama ges. Difference between the 
value received and the value of the fraudulent party's 
performance as represented. 
Civil Damage Acts. See Dram Shop Acts. 
Compensatory dama ges. Compensatory damages are 
such as will compensate the injured party for the injury 
sustained, and nothing more; such as will simply make 
good or replace the loss caused by the wrong or injury. 
Damages awarded to a person as compensation, indem
nity, or restitution for harm sustained by him. The 
rationale behind compensatory damages is to restore the 
injured party to the position he or she was in prior to 
the injury. Northwestern Nat. Cas. Co. v. McNulty, 
C.A.Fla., 307 F.2d 432, 434. Equivalent of Actual dam
ages, above. 
Compensatory or actual damages consist of both gen
eral and special damages. General damages are the 
natural, necessary, and usual result of the wrongful act 
or occurrence in question. Special damages are those 
"which are the natural, but not the necessary and 
inevitable result of the wrongful act." 
Consequential dama ges. Such damage, loss or injury as 
does not flow directly and immediately from the act of 
the party, but only from some of the consequences or 
results of such act. Richmond Redevelopment and 
Housing Authority v. Laburnum Const. Corp., 195 Va. 
827, 80 S.E.2d 574, 580. Damages which arise from 
intervention of special circumstances not ordinarily pre
dictable. Roanoke Hospital Ass'n v. Doyle & Russell, 
Inc., 215 Va. 796, 214 S.E.2d 155, 160. Those losses or 
injuries which are a result of an act but are not direct 
and immediate. Consequential damages resulting from 
a seller's breach of contract include any loss resulting 
from general or particular requirements and needs of 
which the seller at the time of contracting had reason to 
know and which could not reasonably be prevented by 
cover or otherwise, and injury to person or property 
proximately resulting from any breach of warranty. 
U.C.C. § 2-715(2). See also Hadley v. Baxendale, rule of; 
and Incidental dama ges, below. 
390 
Continu ing dama ges. Such as accrue from the same 
injury, or from the repetition of similar acts, between 
two specified periods of time. 
Criminal dama ge. Criminal damage to property is by 
means other than by fire or explosive: (a) Willfully 
injuring, damaging, mutilating, defacing, destroying, or 
SUbstantially impairing the use of any property in which 
another has an interest withput the consent of such 
other person; or (b) Injuring, damaging, mutilating, 
defacing, destroying, or substantially impairing the use 
of any property with intent to injure or defraud an 
insurer or lienholder. See Arson. 
Damages ultra. Additional damages claimed by a plain
tiff not satisfied with those paid into court by the 
defendant. 
Direct dama ges. Direct damages are such as follow 
immediately upon the act done. Damages which arise 
naturally or ordinarily from breach of contract; they 
are damages which, in ordinary course of human experi
ence, can be expected to result from breach. Roanoke 
Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 
S.E.2d 155, 160. 
Excessive dama ges. Damages awarded by a jury which 
are grossly in excess of the amount warranted by law on 
the facts and circumstances of the case; unreasonable or 
outrageous damages. See Remittitur. 
Excess liability dama ges. A cause of action in tort by an 
insured against his liability carrier for the negligent 
handling of settlement negotiations which result in a 
judgment against the insured in excess of his policy 
limits. G. A. Stowers Furniture Co. v. American Indem
nity Co., Tex.Com.App., 15 S.W.2d 544. 
Exemplary or punitive dama ges. Exemplary damages 
are damages on an increased scale, awarded to the 
plaintiff over and above what will barely compensate 
him for his property loss, where the wrong done to him 
was aggravated by circumstances of violence, oppression, 
malice, fraud, or wanton and wicked conduct on the part 
of the defendant, and are intended to solace the plaintiff 
for mental anguish, laceration of his feelings, shame, 
degradation, or other aggravations of the original wrong, 
or else to punish the defendant for his evil behavior or 
to make an example of him, for which reason they are 
also called "punitive" or "punitory" damages or "vindic
tive" damages. Unlike compensatory or actual dam
ages, punitive or exemplary damages are based upon an 
entirely different public policy consideration-that of 
punishing the defendant or of setting an example for 
similar wrongdoers, as above noted. In cases in which it 
is proved that a defendant has acted willfully, malicious
ly, or fraudulently, a plaintiff may be awarded exempla
ry damages in addition to compensatory or actual dam
ages. Damages other than compensatory damages 
which may be awarded against person to punish him for 
outrageous conduct. Wetherbee v. United Ins. Co. of 
America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680. Such are 
given as an enhancement of compensatory damages be
cause of wanton, reckless, malicious or oppressive char-

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391 
acter of acts complained of. Cape Publications, Inc. v. 
Bridges, Fla.App., 387 So.2d 436, 440. 
Expectancy dama ges. As awarded in actions for nonper
formance of contract, such damages are calculable by 
subtracting the injured party's actual dollar position as 
a result of the breach from that party's projected dollar 
position had performance occurred. The goal is to ascer
tain the dollar amount necessary to ensure that the 
aggrieved party's position after the award will be the 
same-to the extent money can achieve the identity-as 
if the other party had performed. Alover Distrib., Inc. 
v. Kroger Co., C.A.Ill., 513 F.2d 11 37, 1140. 
Fee dama ges. Damages sustained by and awarded to an 
abutting owner of real property occasioned by the con
struction and operation of an elevated railroad in a city 
street, are so called, because compensation is made to 
the owner for the injury to, or deprivation of, his ease
ments of light, air, and access, and these are parts of the 
fee. 
Foreseeable dama ges. Loss that the party in breach had 
reason to know of when the contract was made. 
Future dama ges. Those sums awarded to an injured 
party for, among other things, residuals or future effects 
of an injury which have reduced the capability of an 
individual to function as a whole man, future pain and 
suffering, loss or impairment of earning capacity, and 
future medical expenses. Jordan v. Bero, 158 W.Va. 28, 
210 S.E.2d 618, 631. 
Those damages that flow as a natural and necessary 
result of the act claimed of, while "special damages" are 
damages which actually result from the act by reason of 
the special circumstances of the case and not as a 
necessary result of the act. Porter v. Crawford & Co., 
Mo.App., 611 S.W.2d 265, 271. Compare Special dam
ages, below. 
General dama ges. Such as the law itself implies or 
presumes to have accrued from the wrong complained 
of, for the reason that they are its immediate, direct, 
and proximate result, or such as necessarily result from 
the injury, or such as did in fact result from the wrong, 
directly and proximately, and without reference to the 
special character, condition, or circumstances of the 
plaintiff. Myers v. Stephens, 43 Cal.Rptr. 420, 433, 233 
C.A.2d 104. 
Hedonic dama ges. Damages awarded in some jurisdic
tions for the loss of enjoyment of life, or for the value of 
life itself, as measured separately from the economic 
productive value that an injured or deceased person 
would have had. Compensation to a personal injury 
victim "for the limitations on the person's life created by 
the injury." Thompson v. National Railroad Passenger 
Corp., C.A.Tenn., 621 F.2d 814, 824. Many courts hold 
that such loss is included in damages for disability and 
pain and suffering. 
Inadequate dama ges. Damages are called "inadequate," 
within the rule that an injunction will not be granted 
where adequate damages at law could be recovered for 
the injury sought to be prevented, when such a recovery 
DAMAGES 
at law would not compensate the parties and place them 
in the position in which they formerly stood. 
Incidental dama ges. Under U.C.C. § 2-710, such dam
ages include any commercially reasonable charges, ex
penses or commissions incurred in stopping delivery, in 
the transportation, care and custody of goods after the 
buyer's breach, in connection with the return or resale 
of the goods or otherwise resulting from the breach. 
Also, such damages, resulting from a seller's breach of 
contract, include expenses reasonably incurred in in
spection, receipt, transportation and care and custody of 
goods rightfully rejected, any commercially reasonable 
charges, expenses or commissions in connection with 
effecting cover and any other reasonable expense inci
dent to the delay or other breach. U.C.C. § 2-715(1). 
See also Consequential dama ges, above. 
Irreparable dama ges. In the law pertaining to injunc
tions, damages for which no certain pecuniary standard 
exists for measurement. Damages not easily ascertain
able at law. With reference to public nuisances which a 
private party may enjoin, the term includes wrongs of a 
repeated and continuing character, or which occasion 
damages estimable only by conjecture, and not by any 
accurate standard. 
Land dama ges. A term sometimes applied to the 
amount of compensation to be paid for land taken under 
the power of eminent domain or for injury to, or depreci
ation of, land adjoining that taken. See Just compensa
tion; also, Severance dam ages, below, this topic. 
Limitation of dama ges. Provision in contract or agree
ment by which parties agree in advance as to the 
amount or limit of damages for breach. U.C.C. § 2-718. 
See also Liquidated dama ges and penalties, below. 
Liquidated dama ges and penalties. The term is applica
ble when the amount of the damages has been ascer
tained by the judgment in the action, or when a specific 
sum of money has been expressly stipulated by the 
parties to a bond or other contract as the amount of 
damages to be recovered by either party for a breach of 
the agreement by the other. Stein v. Bruce, 366 S.W.2d 
732, 735. The purpose of a penalty is to secure perform
ance, while the purpose of stipulating damages is to fix 
the amount to be paid in lieu of performance. The 
essence of a penalty is a stipUlation as in terrorem while 
the essence of liquidated damages is a genuine covenant
ed preestimate of such damages. 
Liquidated damages is the sum which party to con
tract agrees to pay if he breaks some promise and, which 
having been arrived at by good faith effort to estimate 
actual damage that will probably ensue from breach, is 
recoverable as agreed damages if breach occurs. In re 
Plywood Co. of Pa., C.A.Pa., 425 F.2d 151, 154. Such are 
those damages which are reasonably ascertainable at 
time of breach, measurable by fixed or established exter
nal standard, or by standard apparent from documents 
upon which plaintiffs based their claim. Ramada Devel
opment Co. v. U.S. Fidelity & Guaranty Co., C.A.Mich., 
626 F.2d 517, 525.

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DAMAGES 
Damages for breach by either party may be liquidated 
in the agreement but only at an amount which is rea
sonable in the light of the anticipated or actual harm 
caused by the breach, the difficulties of proof of loss, and 
the inconvenience or nonfeasibility of otherwise obtain
ing an adequate remedy. A term fixing unreasonably 
large liquidated damages is void as a penalty. V.C.C. 
§ 2-718(1). 
Compare Unliquidated dam ages, below. 
Mitigation of dama ges. Although the law of damages 
contemplates full and just compensation for negligently 
inflicted injuries, the law likewise prescribes, as a recip
rocal principle, that a tortfeasor should not sustain 
liability for those damages not attributable to the injury 
producing event. Consequently, a plaintiff may not 
recover damages for the effects of an injury which 
reasonably could have been avoided or substantially 
ameliorated. This limitation on recovery is generally 
denominated as "mitigation of damages" or "avoidance 
of consequences." Mitigation of damages or avoidance 
of consequences arises only after the injury producing 
event has occurred. 
Necessary dama ges. A term said to be of much wider 
scope in the law of damages than "pecuniary." It em
braces all those consequences of an injury usually de
nominated "general" damages, as distinguished from 
special damages; whereas the phrase "pecuniary dam
ages" covers a smaller class of damages within the 
larger class of "general" damages. 
Nominal dama ges. Nominal damages are a trifling sum 
awarded to a plaintiff in an action, where there is no 
substantial loss or injury to be compensated, but still the 
law recognizes a technical invasion of his rights or a 
breach of the def endant's duty, or in cases where, al
though there has been a real injury, the plaintiffs 
evidence entirely fails to show its amount. 
Pecuniary dama ges. Such as can be estimated in and 
compensated by money; not merely the loss of money or 
salable property or rights, but all such loss, deprivation, 
or injury as can be made the subject of calculation and 
of recompense in money. Those damages (either gener
al or special) which can be accurately calculated in 
monetary terms. Ellis v. Crockett, 51 Haw. 45, 86, 451 
P.2d 814, 820. See also Pecuniary loss. 
Presum ptive damages. A term occasionally used as the 
equivalent of "exemplary" or "punitive" damages. 
Prospective dama ges. Damages which are expected to 
follow from the act or state of facts made the basis of a 
plaintiffs suit; damages which have not yet accrued, at 
the time of the trial, but which, in the nature of things, 
must necessarily, or most probably, result from the acts 
or facts complained of. 
Proximate dama ges. Proximate damages are the imme
diate and direct damages and natural results of the act 
complained of, and such as are usual and might have 
been expected. Remote damages <ire those attributable 
immediately to an intervening cause, though it forms a 
link in an unbroken chain of causation, so that the 
392 
remote damage would not have occurred if its elements 
had not been set in motion by the original act or event. 
Punitive dama ges. See Exemplary or punitive dam ages, 
above. 
Remote dam ages. The unusual and unexpected result, 
not reasonably to be anticipated from an accidental or 
unusual combination of circumstances-a result beyond 
which the negligent party has no control. 
Rescissory dama ges. Such damages contemplate a re
turn of the injured party to the position he occupied 
before he was induced by wrongful conduct to enter into 
the transaction. When return of the specific property, 
right, etc. is not possible (e.g. in a stock fraud transac
tion, the stock is no longer available), the rescissory 
damages would be the monetary equivalent (e.g. value of 
stock). 
Severance dama ges. In condemnation, where the prop
erty condemned constitutes only a part of an owner's 
interest, the owner is entitled to just compensation, not 
only for the fair market value of the interest actually 
taken, but also such additional amount as will be equiv
alent to the diminution or lowering, if any, of the fair 
market value of the owner's interest in the land which 
was not taken, due to the severance therefrom of the 
interest which was taken. 
Special dama ges. Those which are the actual, but not 
the necessary, result of the injury complained of, and 
which in fact follow it as a natural and proximate 
consequence in the particular case, that is, by reason of 
special circumstances or conditions. Twin Coach Co. v. 
Chance Vought Aircraft Inc., 2 Storey 588, 163 A.2d 278, 
286. Such are damages which do not arise from wrong
ful act itself, but depend on circumstances peculiar to 
the infliction of each respective injury. Myers v. Ste
phens, 233 C.A.2d 104, 43 Cal.Rptr. 420, 432, 433. In 
contract law, damages not contemplated by the parties 
at the time of the making of the contract. To be 
recoverable, they must flow directly and immediately 
from the breach of contract, and must be reasonably 
foreseeable. Special damages must be specially pleaded 
and proved. Fed.R. Civil P. 9(g). Compare General 
dama ges, above. 
Speculative dama ges. Prospective or anticipated dam
ages from the same acts or facts constituting the present 
cause of action, but which depend upon future develop
ments which are contingent, conjectural, or improbable. 
Statutory dama ges. Damages resulting from statutorily 
created causes of actions, as opposed to actions at com
mon law; e.g. wrongful death and survival actions; ac
tions under tort claims acts; under § 504 of the federal 
Copyright Act, a copyright owner has the right to collect 
statutory damages in lieu of actual damages for copy
right infringement. 
Substantial dama ges. A sum, assessed by way of dam
ages, which is worth having; opposed to nominal dam
ages, which are assessed to satisfy a bare legal right. 
Considerable in amount and intended as a real compen
sation for a real injury.

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393 
Temporary damages. Damages allowed for intermittent 
and occasional wrongs, such as injuries to real estate, 
where cause thereof is removable or abatable. 
Treble dam ages. Damages given by statute in certain 
types of cases, consisting of the single damages found by 
the jury, actually tripled in amount. See e.g. Section 4 
of Clayton Act which provides for treble damages for 
antitrust violations. 15 U.S.C.A. § 15. 
Unliquidated dama ges. Such as are not yet reduced to 
a certainty in respect of amount, nothing more being 
established than the plaintiffs right to recover; or such 
as cannot be fixed by a mere mathematical calculation 
from ascertained data in the case. Compare Liquidated 
dama ges and penalties, above. 
Vindictive damages. See Exemplary or punitive dam
ages, above. 
Damage to person. The measure of injury, physical, 
mental and emotional, as a result of another's action or 
omission, whether such action or omission be intentional 
or negligent. "Damage" and "injury" are commonly 
used interchangeably, but they are different to extent 
that injury is what is actually suffered while damage is 
the measure of compensation for such suffering. See 
Damage; Injury; Loss. 
Damage to property. Injury to property and generally 
does not include conversion of such property or taking of 
such property by public authority (i.e. eminent domain). 
Wandermere Corp. v. State, 79 Wash.2d 688, 488 P.2d 
1088. See also Damage. 
Damaiouse /dremiy�s/. In old English law, causing 
damage or loss, as distinguished from torcenouse, wrong
ful. 
Dame. In English law, the legal designation of the wife 
of a knight or baronet, or the equivalent of a knighthood 
for women. 
Damn, v. /drem/. To invoke condemnation, curse, swear, 
condemn to eternal punishment, or consign to perdition. 
Damna / dremn�/. Damages, both inclusive and exclu
sive of costs. 
Damnatus / dremneyt�s/. In old English law, con
demned; prohibited by law; unlawful. Damnatus coi
tus, an unlawful sexual connection. 
Damnification / dremn�f�keysh�n/. That which causes 
damage or loss. 
Damnify / dremn�fay /. To cause damage or injurious 
loss to a person or put him in a position where he must 
sustain it. A surety is "damnified" when a judgment 
has been obtained against him. 
Damni injurire actio / dremnay injuriyiy reksh(iy)ow /. 
An action given by the civil law for the damage done by 
one who intentionally injured the slave or beast of 
another. 
Damnosa hrereditas / dremn6ws� h�riyd�tres/. In the 
civil law, a losing inheritance; an inheritance that was 
a charge, instead of a benefit. 
DANGER INVITES RESCUE 
The term has also been metaphorically applied to that 
species of property of a bankrupt which, so far from 
being valuable, would be a charge to the creditors; for 
example, a term of years where the rent would exceeEl 
the revenue. 
Damnum / dremn�m/. Lat. Damage; the loss or dimi
nution of what is a man's own, either by fraud, careless
ness, or accident. 
Damnum absque injuria / dremn�m rebskwiy injuriy;)/. 
Loss, hurt, or harm without injury in the legal sense; 
that is, without such breach of duty as is redressible by 
a legal action. A loss or injury which does not give rise 
to an action for damages against the person causing it. 
Damnum emergens / dremn�m �m�rjenz/. Lit., damage 
arising. Actual damage or loss as contrasted with fu
ture loss or expectancy. 
Damnum fatale / dremn�m f�teyliy /. Fatal damage; 
damage from fate; loss happening from a cause beyond 
human control (quod ex fato contingit), or an act of God, 
for which bailees are not liable; such as shipwreck, 
lightning, and the like. The civilians included in the 
phrase "damnum fatale" all those accidents which are 
summed up in the common-law expression, "Act of God 
or public enemies;" though, perhaps, it embraced some 
which would not now be admitted as occurring from an 
irresistible force. See Act of God. 
Damnum infectum / dremn�m infekt�m/. In Roman 
law, damage not yet committed, but threatened or im
pending. A preventive interdict might be obtained to 
prevent such damage from happening; and it was treat
ed as a quasi-delict, because of the imminence of the 
danger. 
Damnum rei amissae / dremn�m riyay �misiy /. In the 
civil law, a loss arising from a payment made by a party 
in consequence of an error of law. 
Damnum sine injuria esse potest / dremn�m sayniy 
injuriy� esiy p6wt�st/. There may be damage or injury 
inflicted without any act of injustice. 
Dan. Anciently the better sort of men in England had 
this title; so the Spanish Don. The old term of honor 
for men, as we now say Master or Mister. 
Danelage /deynley, deynlM. A system of laws, intro
duced by the Danes on their invasion and conquest of 
England, which was principally maintained in some of 
the midland counties, and also on the eastern coast. 1 
Bl.Comm. 65; 4 Bl.Comm. 411. 
Danger. Jeopardy; exposure to loss or injury; peril. 
State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 506. See 
also Apparent danger; Dangerous; Hazard; Imminent 
danger; Peril; Risk; Unavoidable dangers. 
Dangeria /drenjiriy�/. In old English law, a money 
payment made by forest-tenants, that they might have 
liberty to plow and sow in time of pannage, or mast 
feeding. 
Danger invites rescue. Term used in law of torts and, 
in limited manner, in law of crimes to describe where

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DANGER INVITES RESCUE 
liability is borne by one who creates dangerous condition 
for one person when another person comes to his rescue 
and is injured. The liability to the second person is 
founded on this maxim. Krauth v. Geller, 54 N.J.S uper. 
442, 149 A.2d 271. 
Dangerous. Attended with risk; perilous; hazardous; 
unsafe. See also Danger; In herently dangerous. 
Dangerous condition. Such condition of property for 
which a public entity may be liable is a condition of 
property which creates a substantial risk of injury when 
the property is used with due care in a manner in which 
it is reasonably foreseeable that it will be used. Har
land v. State, 75 C.A.3d 475, 142 Cal.Rptr. 201, 206. 
Dangerous criminal. One convicted of a particUlarly 
heinous crime or one who has escaped or tried to escape 
from penal confinement by use of force of an aggravated 
character. An armed criminal. Such criminals may be 
segregated within prison. 
Dangerous instrumentality. Anything which has the 
inherent capacity to place people in peril, either in itself 
(e.g. dynamite), or by a careless use of it (e.g. boat). 
Green v. Ross, D.C.Fla., 338 F.Supp. 365, 367. Due care 
must be exercised in using to avoid injury to those 
reasonably expected to be in proximity. Pendleton 
Woolen Mills v. Vending Associates, 195 Neb. 46, 237 
N.W.2d 99. In certain cases, absolute liability may be 
imposed. See also Dangerous weapon; Deadly weapon; 
In herently dangerous; Strict liability. 
Dangerous· machine. A machine is "dangerous" in 
such sense that the employer is required to guard it, if, 
in the ordinary course of human affairs, danger may be 
reasonably anticipated from the use of it without protec
tion. 
Dangerous occupation. Term used to describe hazard
ous work for purposes of worker's compensation laws, 
and in wage and hour and child labor laws. 
Dangerous per se. A thing that may inflict injury 
without the immediate application of human aid or 
instrumentality. 
Dangerous place. One where there is considerable risk, 
or danger, or peril; one where accidents or injuries are 
very apt to occur. Henri v. Rocky Mountain Packing 
Corp., 113 Utah 415, 196 P.2d 487, 489. 
Dangerous product. See In herently dangerous; Strict 
liability. 
Dangerous-tendency test . Propensity of person or ani
mal to inflict injury; used in dog bite cases to describe 
viscious habits of dog. Frazier v. Stone, 515 S.W.2d 766 
(Mo.App.). 
Dangerous weapon. One dangerous to life; one by the 
use of which a serious or fatal wound or injury may 
probably or possibly be inflicted. In context of criminal 
possession of a weapon can be any article which, in 
circumstances in which it is used, attempted to be used, 
or threatened to be used, is readily capable of causing 
death or other serious physical injury. People v. Green, 
394 
4 Dept., 124 A.D.2d 725, 508 N.Y.S.2d 725, 726. What 
constitutes a "dangerous weapon" depends not on na
ture of the object itself but on its capacity, given manner 
of its use, to endanger life or inflict great bodily harm. 
U.S. v. Bey, C.A.Ga., 667 F.2d 7, 11. As the manner of 
use enters into the consideration as well as other cir
cumstances, the question is often one of fact for the jury, 
but not infrequently one of law for the court. See also 
Assault with dangerous or deadly weapon; Dangerous 
instrumentality; Deadly weapon; Firearm. 
Dangers of navigation. See Dangers of the river; Dan
gers of the sea, infra. 
Dangers of the river. This phrase, as used in bills of 
lading, means only the natural accidents incident to 
river navigation, and does not embrace such as may be 
avoided by the exercise of that skill, judgment, or fore
sight which are demanded from persons in a particular 
occupation. It includes dangers arising from unknown 
reefs which have suddenly formed in the channel, and 
are not discoverable by care and skill. 
Dangers of the sea. The expression "dangers of the 
sea" means those accidents peculiar to navigation that 
are of an extraordinary nature, or arise from irresistible 
force or overwhelming power, which cannot be guarded 
against by the ordinary exertions of human skill and 
prudence. Hibernia Ins. Co. v. Transp. Co., 120 U.S. 
166, 7 S.Ct. 550, 30 L.Ed. 621. 
Danism Idreniz;}m/. The act of lending money or usury. 
Dans et retinens, nihil dat I drenz ;}t red;}nenz nay;}l 
dret/. One who gives and yet retains does not give 
effectually. Or, one who gives, yet retains [possession], 
gives nothing. 
D & 0 Insurance. Directors and Officers liability insur
ance. See Ins urance. 
Dare Ideriy/. Lat. In the civil law, to transfer proper
ty. When this transfer is made in order to discharge a 
debt, it is datio solvendi animo; when in order to receive 
an equivalent, to create an obligation, it is datio contra
hendi animo; lastly, when made donandi animo, from 
mere liberality, it is a gift, dono datio. 
Dare ad remanentiam Ideriy red rem;}nensh(iy);}m/. To 
give away in fee, or forever. 
Darraign Id;}reyn/. To clear a legal account; to answer 
an accusation; to settle a controversy. 
Darrein Id;}reyn/. L. Fr. Last. 
Darrein continuance Id;}reyn k;}ntinyuw;}ns/. The last 
continuance. 
Darrein presentment I d;}reyn pr;}sentm�nt/. In old 
English law, the last presentment. See Assize (Assise of 
darrein presentment). 
Darrein seisin I d�reyn siyz�n/. Last seisin. A plea at 
common law which lay in some cases for the tenant in a 
writ of right. 
Dartmouth College Case. Dartmouth College v. Wood
ward, 17 U.S. 518, 4 Wheat. 518, 4 L.Ed. 629, held that a

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395 
college charter was a contract within the constitutional 
provision against state legislatures' prohibiting impair
ment of the obligation of contract. Art. I, Sec. 10, 
U.S.C onst. Although Dartmouth College involved a 
charitable and educational institution, the Supreme 
Court readily expanded the principles announced in the 
opinion to corporate charters issued for business pur
poses. Consequently, the decision protected industrial 
and financial corporations from much government regu
lation. 
Dash. The em dash (-) or the en dash (-) is often used 
to indicate the omission of the intermediate terms of a 
series which are to be supplied in reading, being thus 
often equivalent to ... ... ... inclusive; thus Mark iv, 
3-20 (that is, verses 3 to 20, inclusive); the years 1880-
1888 (that is, 1880 to 1888). 
Data. Organized information generally used as the basis 
for an adjudication or decision. Commonly, organized 
information, collected for specific purpose. 
In old practice and conveyancing, the date of a deed; 
the time when it was given; that is, executed. Grounds 
whereon to proceed; facts from which to draw a conclu
sion. 
Date. The specification or mention, in a written instru
ment, of the time (day, month and year) when it was 
made (executed). Also the time so specified. In its 
common and accepted statutory meaning refers simply 
to day, month and year. Anderson v. State Personnel 
Bd., 103 C.A.3d 242, 162 Cal.Rptr. 865, 868. 
The word is derived from the Latin word "datum" 
meaning given and is defined as the time given or 
specified-in some way ascertained and fixed. The time 
when an instrument was made, acknowledged, delivered 
or recorded; the clause or memorandum which specifies 
that fact; and the time from which its operation is to be 
reckoned. 
That part of a deed or writing which expresses the day 
of the month and year in which it was made or given. 
The primary signification of date is not time in the 
abstract, nor time taken absolutely, but time given or 
specified; time in some way ascertained and fixed. 
When we speak of the date of a deed, date of issue of a 
bond or date of a policy, we do not mean the time when 
it was actually executed, but the time of its execution as 
given or stated in the deed itself. The date of an item, 
or of a charge in a book-account, is not necessarily the 
time when the article charged was, in fact, furnished, 
but rather the time given or set down in the account, in 
connection with such charge. And so the expression 
"the date of the last work done, or materials furnished," 
in a mechanic's lien law, may be taken, in the absence of 
anything in the act indicating a different intention, to 
mean the time when such work was done or materials 
furnished, as specified in the plaintiffs written claim. 
The precise meaning of date, however, depends upon 
context, since there are numerous instances when it 
means actual as distinguished from conventional time. 
See also Antedate; Backdating; Post-date. 
DATIVE 
Date certaine I dlit serteyn/. In French law, a deed is 
said to be a date certaine (fixed date) when it has been 
subjected to the formality of registration. After this 
formality has been complied with, the parties to the 
deed cannot by mutual consent change the date thereof. 
Date of bankruptcy. Under Bankruptcy law, time at 
which court declares a person a bankrupt. Usually 
coincides with date of filing in case of voluntary petition. 
See Bankruptcy Code § 301. See also Date of cleavage. 
Date of cleavage. The date of filing voluntary petition 
of bankruptcy and hence the cut-off date as to discharge
ability of debts in bankruptcy. Only those debts, with 
some exceptions, which exist at this time are dischargea
ble in bankruptcy. 
Date of injury. Means inception date of the injury and 
is regarded as coincident with date of occurrence or 
happening of accident which caused such injury. In
demnity Ins. Co. of North America v. Williams, 129 Tex. 
51, 99 S.W.2d 905, 907. 
Date of issue. When applied to notes, bonds, etc., of 
series, usually means an arbitrary date fixed as begin
ning of term for which they run, without reference to 
precise time when convenience or state of market may 
permit their sale or delivery; date which bonds and 
stocks bear, and not date when they were actually 
issued in sense of being signed and delivered and put 
into circulation. Whetstone v. City of Stuttgart, 193 
Ark. 88, 97 S.W.2d 641, 643. 
The words in life insurance policy have been held not 
to mean the date of actual execution or the delivery 
date, but the date set forth in the policy itself. Potts v. 
Metropolitan Life Ins. Co., 133 Pa.Super. 397, 2 A.2d 
870, 872. 
Date of maturity. Day on which a debt falls due as in 
the case of a promissory note, bond or other evidence of 
indebtedness. 
Date of record. Date on which stockholder must have 
owned shares of stock to be entitled to dividend. See 
also Ex dividend. 
Datio Ideysh(iy)ow/. In the civil law, a giving, or act of 
gIvmg. Datio in solutum; a giving in payment; a 
species of accord and satisfaction. Called, in modern 
law, "dation." 
Dation Ideysh:m/. In the civil law, a gift; a giving of 
something. It is not exactly synonymous with "dona
tion," for the latter implies generosity or liberality in 
making a gift, while dation may mean the giving of 
something to which the recipient is already entitled. 
Dation en paiement I deysh:m �n peym�ntl dasyown on 
peymon/. In French law, a giving by the debtor and 
receipt by the creditor of something in payment of a 
debt, instead of a sum of money. It is somewhat like the 
accord and satisfaction of the common law. 
Dative Ideyd�v/. A word derived from the Roman law, 
signifying "appointed by public authority." Thus, in 
Scotland, an executor-dative is an executor appointed by 
a court; corresponding or equivalent to an English ad-

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DATIVE 
mini strator or "administrator with the will annexed". 
In old English law, in one's gift; that may be given and 
disposed of at will .and pleasure. 
Da tua dum tua sunt, post mortem tunc tua non sunt 
Idey t(y)uw� d�m t(y)uw� s�nt, powst mort�m t�nk 
t(y)uw� non s�ntl. Give the things which are yours 
whilst they are yours; after death they are not yours. 
Datum Ideyt�m/. A first principle; a thing given; a 
date. 
Datur digniori I deyt�r digniyoray I. It is given to the 
more worthy. 
Daughter. Female offspring. 
Daughter-in-law. Wife of one's son. 
Davis-Bacon Act. Federal law which deals with rate of 
pay for laborers and mechanics on public buildings and 
public works. 40 V.S.C.A. § 276a. 
Day. 1. A period of time consisting of twenty-four 
hours and including the solar day and the night. 
2. The period of time during which the earth makes 
one revolution on its axis. Long v. City of Wichita Falls, 
142 Tex. 202, 176 S.W.2d 936, 938, 939. 
3. The space of time which elapses between two 
successive midnights. Long v. City of Wichita Falls, 142 
Tex. 202, 176 S.W.2d 936, 938, 939. 
4. The whole or any part of period of 24 hours from 
midnight to midnight. Talbott v. Caudill, 248 Ky. 146, 
58 S.W.2d 385. 
5. That portion of time during which the sun is 
above the horizon, and, in addition, that part of the 
morning and evening during which there is sufficient 
light for the features of a man to be reasonably dis
cerned. V. S. v. Martin, D.C.Mass., 33 F.2d 639, 640. 
Compare Nighttime. 
6. An artificial period of time, computed from one 
fixed point to another twenty-four hours later, without 
any reference to the prevalence of light or darkness. 
7. The period of time, within the limits of a natural 
day, set apart either by law or by common usage for the 
transaction of particular business or the performance of 
labor; as in banking, in laws regulating the hours of 
labor, in contracts for so many "days work," and the 
like, the word "day" may signify six, eight, ten, or any 
number of hours. 
8. In practice and pleading, a particular time as
signed or given for the appearance in court, the return 
of process, etc. 
Artificial day. The time between the rising and setting 
of the sun; that is, day or daytime as distinguished from 
night. 
Astronomical day. The period of twenty-four hours be
ginning and ending at noon. 
Banking day. See Banking day. 
Calendar days. See Calendar. 
Civil day. The solar day, measured by the diurnal 
revolution of the earth, and denoting the interval of 
396 
time which elapses between the successive transits of 
the sun over the same hour circle, so that the "civil day" 
commences and ends at midnight. 
Clear days. See Clear. 
Common days. In old English practice, an ordinary day 
in court. 
Daytime. See Daytime. 
Juridical day. A day proper for the transaction of 
business in court. One on which the court may lawfully 
sit, excluding Sundays, holidays, and other days specifi
cally excluded by statute or court rule. Fed.R. Civil P. 
77. 
Law day. Currently, May 1st of each year is designated 
"Law Day" and is observed in schools, public assemblies, 
and courts, in honor and respect of our legal system. 
The day prescribed in a bond, mortgage, or defeasible 
deed for payment of the debt secured thereby; maturity 
date. 
Natural day. Properly the period of twenty-four hours 
from midnight to midnight. Though sometimes taken to 
mean the daytime or time between sunrise and sunset. 
Solar day. A term sometimes used as meaning that 
portion of the day when the sun is above the horizon, 
but properly it is the time between two complete (appar
ent) revolutions of the sun, or between two consecutive 
positions of the sun over any given terrestrial meridian, 
and hence, according to the usual method of reckoning, 
from noon to noon at any given place. 
Day-book. A tradesman's account book; a book in 
which all the occurrences of the day are set down. It is 
usually a book of original entries. 
Day certain. A fixed or appointed day; a specified 
particular day; a day in term. 
Day in court. The right and opportunity afforded a 
person to litigate his claims, seek relief, or defend his 
rights in a competent judicial tribunal. 
The time appointed for one whose rights are called 
judicially in question, or liable to be affected by judicial 
action, to appear in court and be heard in his own 
behalf. This phrase, as generally used, means not so 
much the time appointed for a hearing as the opportuni
ty to present one's claims or rights in a proper forensic 
hearing before a competent tribunal. 
A litigant has his "day in court" when he has been 
duly cited to appear and has been afforded an opportuni
ty to appear and to be heard. Cohen v. City of Houston, 
Tex.Civ.App., 185 S.W.2d 450, 452; In re Hampton's 
Estate, 55 Cal.App.2d 543, 131 P.2d 565, 573. 
Daylight. See Daytime. 
Daylight saving time. Time each year from Spring 
through Fall when clocks are set ahead one hour to give 
people more daylight at end of working day. Daylight 
saving time is one hour later than Standard Time for 
the locality. 
Day loan. See Loan.

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397 
Day of atonement. See Yom Kippur. 
Day order. An order to buy or sell a security or com
modity on a particular day and if such sale does not take 
place, the order expires. 
Day-rule, or day-writ. In English law, a permission 
granted to a prisoner to go out of prison, for the purpose 
of transacting his business, as to hear a case in which he 
was concerned at the assizes, etc. Abolished by 5 & 6 
Vict., c. 22, § 12 (1842). 
Days in bank. (L. Lat. dies in banco.) In old English 
law, certain stated days in term appointed for the ap
pearance of parties, the return of process, etc., originally 
peculiar to the court of common pleas, or bench (bank), 
as it was anciently called. 3 Bl.Comm. 277. 
By the common law, the defendant was allowed three 
full days in which to make his appearance in court, 
exclusive of the day of appearance or return-day named 
in the writ; 3 Bl.Comm. 278. Upon his appearance, 
time was usually granted him for pleading; and this was 
called giving him day, or, as it was more familiarly 
expressed, a continuance. 3 Bl.Comm. 316. When the 
suit was ended by discontinuance or by judgment for the 
defendant, he was discharged from further attendance, 
and was said to go thereof sine die, without day. See 
Continuance. 
Daysman. An arbitrator, umpire, or elected judge. 
Days of grace. A number of days allowed, as a matter 
of favor or grace, to a person who has to perform some 
act, or make some payment (e.g., payment of insurance 
premium), after the time originally limited for the pur
pose has elapsed. In life insurance policies most states 
permit one month or thirty-one days. 
In old practice, three days allowed to persons sum
moned in the English courts, beyond the day named in 
the writ, to make their appearance; the last day being 
called the "quarto die post". 3 Bl.Comm. 278. 
In mercantile law, a certain number of days (generally 
three) allowed to the maker or acceptor of a bill, draft, 
or note, in which to make payment, after the expiration 
of the time expressed in the paper itself. Originally 
these days were granted only as a matter of grace or 
favor, but the allowance of them became an established 
custom of merchants, and was sanctioned by the courts 
(and in some cases prescribed by statute), so that they 
are now demandable as of right. Bell v. Bank, 115 U.S. 
373, 6 S.Ct. 105, 29 L.Ed. 409; Renner v. Bank, 9 Wheat. 
581, 6 L.Ed. 166. 
See also Grace period. 
Daytime. The time during which there is the light of 
day, as distinguished from night or nighttime. That 
portion of the full twenty-four hour day in which a 
man's countenance is visible by natural light and, hence, 
that portion of the day which is distinguished from 
nighttime in crime of burglary; nighttime being the 
period between one hour after sunset and one hour 
before sunrise. Model Penal Code, § 221.0 (2). Word 
"daytime" as used in statutory crime of breaking and 
entering a dwelling in the daytime means that time of 
DEAD·BORN 
day when there is sufficient daylight so as to be able to 
discern the features of another by natural sunlight. 
State v. Briggs, 161 Conn. 283, 287 A.2d 369, 373. 
The period between sunrise and sunset. Calif. Penal 
Code § 7. 
Under Fed.R.Crim.Proc. 41(h), relating to search and 
seizure, "daytime" means the hours from 6:00 a. m. to 
10:00 p. m. 
See also Nighttime. 
Daywere. In old English law, a term applied to land, 
and signifying as much arable ground as could be 
plowed up in one day's work. 
Daywork drilling contract. A drilling contract under 
which the drilling contractor is compensated on the 
basis of the amount of time spent in drilling operations. 
Essentially, the lease owner hires the drilling rig and its 
staff to work under his direction. Broad discretion is 
given to the contracting party to give instructions to the 
drilling contractor as to how to conduct drilling opera
tions. The courts impose broad liability upon the con
tracting party as a result of his broad discretion. 
D.B. Abbreviation for Doomsday Book. 
D.B.A. Abbreviation for "doing business as." 
D.B.E. An abbreviation for de bene esse (q.v.). 
D.B.N. An abbreviation for de bonis non; descriptive of 
a species of administration. 
D.C. An abbreviation standing either for "District 
Court," or "District of Columbia." 
DDB. Double-declining-balance depreciation. See De
preciation. 
De I diy I. A Latin preposition, signifying of; by; from; 
out of; affecting; concerning; respecting. 
Deacon Idiyk;;m/. In ecclesiastical law, a minister or 
servant in the church, whose office is to assist the priest 
in divine service and the distribution of the sacrament. 
It is the lowest degree of holy orders in the Church of 
England. 
De acquirendo rerum dominio I diy rekw::>rendow rir::>m 
d::>min(i)yow I. Of (about) acquiring the ownership of 
things. 
Dead. See Death. 
Dead asset. Worthless asset which has no realizable 
value; e.g. uncollectable account receivable. 
Deadbeat. Slang term for one who fails to pay his debts. 
Dead body. A corpse. The body of a human being, 
deprived of life. 
Dead-born. A dead-born child is to be considered as if it 
had never been conceived or born; in other words, it is 
presumed it never had life, it being a maxim of the 
common law that mortuus exitus non est exitus (a dead 
birth is no birth). This is also the doctrine of the civil 
law.

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DEAD FREIGHT 
Dead freight. The amount paid by a charterer for that 
part of the vessel's capacity which he does not occupy 
although he has contracted for it. 
Dead letter. A term sometimes applied to a law that 
has become obsolete by long disuse, and also to a letter 
that is undeliverable by the postal service because of 
insufficient address or postage and absence of return 
address. 
Deadlocked. Unable to agree. 
Corporation. Deadlock in a closely held corporation 
arises when a control structure permits one or more 
factions of shareholders to block corporate action if they 
disagree with some aspect of corporate policy. A dead
lock often arises with respect to the election of directors, 
e.g., by an equal division of shares between two factions, 
but may also arise at the level of the board of directors 
itself. Term as used in statute empowering court to 
dissolve corporation when directors are deadlocked, 
means corporation which, because of decision or indeci
sion of stockholders, cannot perform its corporate pow
ers. Kollbaum v. K & K Chevrolet, Inc., 196 Neb. 555, 
244 N.W.2d 173, 177. See Rev.Model Bus.Corp. Act 
§ 14.3 0(2) (involuntary dissolution at request of share
holder). 
Jury. Jury which cannot agree on verdict; sometimes 
called "hung jury". Trial court should not repeatedly 
give an "anti-deadlock" instruction to "deadlocked 
jury," which is one which trial judge has concluded is 
genuinely deadlocked, giving due consideration to such 
things as nature and complexity of trial issues, duration 
of trial, length of jury deliberations, and representations 
of jury to court about state of deliberations. Epperson v. 
U.S., D.C.App., 495 A.2d 1170, 1172. See also Dynamite 
instruction. 
Deadly force. The degree of force that may result in 
the death of the person against whom the force is 
applied. Force likely or intended to cause death or 
great bodily harm; may be reasonable or unreasonable, 
depending on the circumstances. 
Deadly weapon. Any firearm, or other weapon, device, 
instrument, material or substance, whether animate or 
inanimate, which in the manner it is used or is intended 
to be used is known to be capable of producing death or 
serious bodily injury. Model Penal Code, § 210.0. See 
also 18 U.S.C.A. § 921. 
Such weapons or instruments as are made and de
signed for offensive or defensive purposes, or for the 
destruction of life or the infliction of injury. One which, 
from the manner used, is calculated or likely to produce 
death or serious bodily injury. Austin v. State, Fla. 
App., 336 So.2d 480, 481. 
See also Dangerous weapon; Malicious assault with 
deadly weapon. 
Deadly weapon per see A weapon which of itself is 
deadly or one which would ordinarily result in death by 
its use; e.g. gun. Baylor v. State, 151 Tex.Cr.R. 365, 208 
S.W.2d 558, 561. 
398 
Dead man's part. In English law, that portion of the 
effects of a deceased person which, by the custom of 
London and York, is allowed to the administrator; be
ing, where the deceased leaves a widow and children, 
one-third; where he leaves only a widow or only chil
dren, one-half; and, where he leaves neither, the whole. 
This portion the administrator was wont to apply to his 
own use, till the statute 1 Jac. II, c. 17, declared that the 
same should be subject to the statute of distributions. 2 
Bl.Comm. 518. 
Dead man's statute. An evidential disqualification 
which renders inadmissible oral promises or declara
tions of a dead person when offered in support of their 
claims by those who bring claims against the estate of 
the dead person. The last vestige of the disqualification 
of witnesses by reason of interest as this existed at 
common law, though many states admit such testimony 
under certain statutory conditions. The standard type 
of state dead man statute would be applicable under 
Fed.R.Evid. 601 only if testimony of the witness con
cerned claims or defenses, or elements thereof, which 
were governed by state law. 
De admensuratione / diy redmensh:m�yshiy6wniy /. Of 
admeasurement. Thus, de admensuratione dotis was a 
writ for the admeasurement of dower, and de admensu
ratione pasturre was a writ for the admeasurement of 
pasture. 
Dead-pledge. A mortgage, mortuum vadium. 
Dead rent. In English law, a rent payable on a mining 
lease in addition to a royalty, so called because it is 
payable although the mine may not be worked. 
Dead stock. Goods in inventory for which there is no 
market. 
Dead storage. The storage, especially of automobiles in 
public garages, where automobiles not in use are to 
remain uninterruptedly for a time, sometimes for the 
season. 
Dead time. Time which does not count for any purpose, 
e.g. time for which a person is not paid wages, or time 
when employee is not working due to no fault of his own 
(e.g. because of machinery breakdown), or time for which 
a prisoner does not get credit in serving his sentence. 
Dead use. A future use. 
De advisamento consilii nostri / diy redvayz�m€mtow 
k�nsiliyay n6stray /. L. Lat. With or by the advice of 
our council. A phrase used in the old writs of summons 
to parliament. 
De requitate / diy ekw�teytiy /. In equity, de jure stricto, 
nihil possum vendicare, de requitate tamen, nullo modo 
hoc obtinet; in strict law. I can claim nothing, but in 
equity this by no means obtains. 
De restimato /diy est�meytow/. In Roman law, one of 
the innominate contracts, and, in effect, a sale of land or 
goods at a price fixed (restimato ), and guarantied by 
some third party, who undertook to find a purchaser.

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399 
De retate probanda Idiy iyteytiy prowbrend�/. For prov
ing age. A writ which formerly lay to summon a jury in 
order to determine the age of the heir of a tenant in 
capite who claimed his estate as being of full age. 
Deafforest I diy�fohr�stl . See Disafforest. 
Deaf person. Any person whose hearing is totally im
paired or whose hearing is so seriously impaired as to 
prohibit the person from understanding oral communi
cations when spoken in a normal conversational tone. 
See Code of Ga.Ann. § 30-1-l. 
Deal, n. An arrangement to attain a desired result by a 
combination of interested parties; the prime object be
ing usually the purchase, sale, or exchange of property 
for a profit. Also, an act of buying and selling; a 
bargain to purchase at a favorable price. See Bargain. 
Deal, v. To traffic; to transact business; to bargain or 
trade. Also, to act between two persons, to intervene, or 
to have to do with. 
As to dealing in futures, see Futures contract. 
Dealer. In the popular sense, one who buys to sell; not 
one who buys to keep, or makes to sell. One who 
purchases goods or property for resale to final custom
ers; a retailer. See also Retailer. 
The term "dealer" means any person engaged in the 
business of buying and selling securities for his own 
account, through a broker or otherwise, but does not 
include a bank, or any person insofar as he buys or sells 
securities for his own account, either individually or in 
some fiduciary capacity, but not as a part of a regular 
business. Securities Exchange Act of 1934, § 3. 
Dealer's talk. The puffing of goods to induce the sale 
thereof; not regarded in law as fraudulent unless ac
companied by some artifice to deceive the purchaser and 
throw him off his guard or some concealment of intrin
sic defects not easily discoverable. See Puffing. 
Dealings. Transactions in the course of trade or busi
ness. 
De allocatione facienda I diy rebkeyshiyowniy 
feys(h)iyend�/. Breve. Writ for making an allowance. 
An old writ directed to the lord treasurer and barons of 
the exchequer, for allowing certain officers (as collectors 
of customs) in their accounts certain payments made by 
them. 
De alto et basso I diy reltow et bresow I. Of high and low. 
A phrase anciently used to denote the absolute submis
sion of all differences to arbitration. 
De ambitu I diy remb�tyuw I. Lat. Concerning bribery. 
A phrase descriptive of the subject-matter of several of 
the Roman laws; as the Lex Aufidia, the Lex Pompeia, 
the Lex Tullia, and others. See Ambitus. 
De ampliori gratia Idiy rempliyoray greysh(iy)�/. Of 
more abundant or especial grace. 
Dean. Administrative or academic head of school, col
lege or university. There may be several kinds of deans 
in larger schools (e.g. dean of student affairs, academic 
dean) and also deans of specific schools within universi-
DE ASSISA PROROGANDA 
ty. Administrator in charge of counseling and disciplin
ing students in college or secondary school. 
In England, an ecclesiastical dignitary who presides 
over the chapter of a cathedral, and is next in rank to 
the bishop. So called from having been originally ap
pointed to superintend ten canons or prebendaries. 1 
Bl.Comm. 382. 
De anna bissextili I diy renow baysekstaylay I. Of the 
bissextile or leap year. The title of a statute passed in 
the twenty-first year of Henry III, which in fact, how
ever, is nothing more than a sort of writ or direction to 
the justices of the bench, instructing them how the 
extraordinary day in the leap year was to be reckoned in 
cases where persons had a day to appear at the distance 
of a year, as on the essoin de malo lecti, and the like. It 
was thereby directed that the additional day should, 
together with that which went before, be reckoned only 
as one, and so, of course, within the preceding year. 
De annua pensione I diy renyuw� penshiyowniy I. Breve. 
Writ of annual pension. An ancient writ by which the 
king, having a yearly pension due him out of an abbey 
or priory for any of his chaplains, demanded the same of 
the abbot 0'" prior, for the person named in the writ. 
De annuo reditu I diy renyuwow red�tyuw I. For a year
ly rent. A writ to recover an annuity, no matter how 
payable, in goods or money. 
Dean of the Arches. In England, the presiding judge of 
the Court of Arches (q.v.). 
De apostata capiendo I diy reposteyt� krepiyendow I. 
Breve. Writ for taking an apostate. A writ which 
anciently lay against one who, having entered and pro
fessed some order of religion, left it and wandered up 
and down the country, contrary to the rules of his order, 
commanding the sheriff to apprehend him and deliver 
him again to his abbot or prior. 
De arbitratione facta I diy arb�treyshiyowniy frekt�/. 
(Lat. Of arbitration had.) A writ formerly used when 
an action was brought for a cause which had been 
settled by arbitration. 
De arrestandis bonis ne dissiperitur I diy rer�strend�s 
bown�s niy d�s�pent�r/. An old writ which lay to seize 
goods in the hands of a party during the pendency of a 
suit, to prevent their being made away with. 
De arrestando ipsum qui pecuniam recepit I diy 
rer�strendow ips�m kway p�kyuwniy�m r�siyp�t/. A 
writ which lay for the arrest of one who had taken the 
king's money to serve in the war, and hid himself to 
escape going. 
De asportatis religiosorum I diy resp�rteyt�s r�
lijiyowsor�ml . Concerning the property of religious per
sons carried away. The title of the statute 35 Edward I, 
passed to check the abuses of clerical possessions, one of 
which was the waste they suffered by being drained into 
foreign countries. 
De assisa proroganda I diy �sayz� prowr�grend�/. (Lat. 
For proroguing assise.) A writ to put off an assise,

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DE ASSISA PROROGANDA 
issuing to the justices, where one of the parties is en
gaged in the service of the king. 
Death. The cessation of life; permanent cessations of all 
vital functions and signs. Numerous states have enact
ed statutory definitions of death which include brain-re
lated criteria. For example, many states have adopted, 
sometimes with variations, the Uniform Determination 
of Death Act definition: "An individual who has sus
tained either (1) irreversible cessation of circulatory and 
respiratory function, or (2) irreversible cessation of all 
functions of the entire brain, including the brain stem, 
is dead. A determination of death must be made in 
accordance with accepted medical standards." See, e.g., 
Calif.Health & Safety Code, § 7180. See also Swafford 
v. State, Ind., 421 N .E.2d 596, 602. 
See also Contemplation of death; Presumption of death; 
Simultaneous Death Act; Wrongful death action. 
Brain death. See Brain death; and Natural Death Acts, 
below. 
Civil death. See Civil death. 
Death benefits. Amount paid under insurance policy on 
death of insured. A payment made by an employer to 
the beneficiary or beneficiaries of a deceased employee 
on account of the death of the employee. A death 
benefit is also provided for under the Social Security 
Act. 
Death by wrongful act. Statutory action arising from 
act to which law attaches liability as in the case of 
serving unwholesome food that results in death, the 
action for which may be brought by personal representa
tive of deceased. See also Wrongful death statutes. 
Death certificate. Official document issued by Register 
of Deaths or some other public official which certifies 
that a person has died. Generally such certificate speci
fies the cause of death, and is commonly required to be 
signed by the attending or an examining physician. 
Fed.Evid.R. 803(9) provides a hearsay exception for ad
missibility of death certificates. 
Death duty. See Death taxes, below. 
Death penalty. Supreme penalty exacted as punishment 
for murder and other capital crimes. The death penalty 
has been held to not be, under all circumstances, cruel 
and unusual punishment within prohibitions of 8th and 
14th Amends., U.S. Const., Gregg v. Georgia, 428 U.S. 
153, 96 S.Ct. 2909, 49 L.Ed.2d 859; nor does the 6th 
Amendment require a jury trial on the sentencing issue 
of life or death, Spaziano v. Florida, 468 U.S. 447, 104 
S.Ct. 3154, 82 L.Ed.2d 340. 
Death records. Official records of deaths kept by town 
or city Register of Deaths or by some other public 
official with like functions. See Death certificate, above. 
Death sentence. See Death penalty, above. 
Death taxes. Generic term to describe all taxes imposed 
on property or on transfer of property at death of owner. 
Includes estate and inheritance taxes. See Estate tax; 
In heritance tax. 
400 
Death warrant. A warrant from the proper executive 
authority appointing the time and place for the execu
tion of the sentence of death upon a convict judicially 
condemned to suffer that penalty. 
Fetal death. See Fetal death. 
Instantaneous death. Term to describe death following 
accident within a very short time such as 15-20 min
utes; such concept is important in death actions in 
which a claim is made for pain and suffering. 
Natural death. A death which occurs by the unassisted 
operation of natural causes, as distinguished not only 
from "civil death", but also from "unnatural" (e.g. vio
lent) death. 
Natural Death Acts. Such statutes (e.g. Cal. Health & 
Safety Code § 7185 et seq.) authorize an adult to make a 
written directive instructing his physician to withhold 
life-sustaining procedures in the event of a terminal 
condition. In the directive, which is to be executed in a 
prescribed manner and made a part of the patient's 
medical records, the declarant directs that if he has 
been certified by two physicians as being afflicted with a 
terminal condition, he is to be permitted to die natural
ly. The Act removes all civil or criminal liability from 
physicians who act in accordance with its provisions. It 
has been held that unwritten right of privacy is broad 
enough to include patient's decision to decline medical 
treatment in certain circumstances. Matter of Quinlan, 
70 N.J. 10, 355 A.2d 647, 663. See also Brain death; Will 
(Living will). 
Presumptive death. That which is presumed from proof 
of a long continued absence unheard from and unex
plained. The general rule, as provided by state statutes, 
is that the presumption of the duration of life ceases at 
the expiration of seven years from the time when the 
person was last known to be living; and after the lapse 
of that period there is a presumption of death. 
Violent death. One caused or accelerated by the inter
ference of human agency; distinguished from "natural 
death." 
Death action. See Wrongful death action. 
Death Knell Doctrine. Doctrine which allows immedi
ate appeal from interlocutory order where delay of re
view until final judgment will cause irreparable loss of 
substantial rights and where order has practical effect of 
permanently foreclosing relief on claim. Moshe Myer
owitz, D.C., P.A. v. Howard, Me., 507 A.2d 578, 580. 
Death on High Seas Act. Federal Act which provides 
for a pecuniary recovery for death "caused by wrongful 
act, neglect or default occurring on the high seas beyond 
a marine league from the shore of any state [territory or 
dependency]." 41 U.S.C.A. § 761 et seq. Mobil Oil Corp. 
v. Higginbotham, 98 S.Ct. 2010, 56 L.Ed.2d 581. 
Deathsman. The executioner; hangman; person that 
executes capital punishment. 
Death's part. See Dead man's part. 
Death trap. A structure or situation involving immi
nent risk of death or a place apparently safe but actual-

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401 
ly very dangerous to life. Benson v. Missouri, K. & T. R. 
Co., Tex.Civ.App., 200 S.W.2d 233, 240. 
De attornato recipiendo / diy ret�rneytow r�sipiyen
dow / . A writ which lay to the judges of a court, requir
ing them to receive and admit an attorney for a party. 
De audiendo et terminando / diy odiy{mdow et 
t;}rm�nrendow / . For hearing and determining; to hear 
and determine. The name of a writ, or rather commis
sion granted to certain justices to hear and determine 
cases of heinous misdemeanor, trespass, riotous breach 
of the peace, etc. See Oyer and terminer. 
De averiis captis in withernamium /diy �v�riy�s 
krept�s �n wid�rneymiy�m/. Writ for taking cattle in 
withernam. A writ which lay where the sheriff re
turned to a pluries writ of replevin that the cattle or 
goods, etc., were eloined, etc.; by which he was com
manded to take the cattle of the defendant in wither
nam (or reprisal), and detain them until he could re
plevy the other cattle. See Withernam. 
De averiis replegiandis / diy �v�riy�s r�pliyjiyrend�s/. 
A writ to replevy beasts. 3 Bl.Comm. 149. 
De banco / diy breIJkow /. Of the bench. A term former
ly applied in England to the justices of the court of 
common pleas, or "bench," as it was originally styled. 
Debarment. To bar, exclude or preclude from having or 
doing something. Exclusion from government contract
ing and subcontracting. See also Disbarment. 
Debasement. Reducing the weight of gold and silver in 
coins of standard value or of increasing the amount of 
alloy in such coins. Such has the effect of reducing the 
intrinsic value. 
Debauch / d�b6ch/. To corrupt one's manners; to make 
lewd; to mar or spoil; to entice; and, when used of a 
woman, to seduce, or corrupt with lewdness. Originally, 
the term had a limited signification, meaning to entice 
or draw one away from his work, employment, or duty; 
and from this sense its application has enlarged to 
include the corruption of manners and violation of the 
person. In its modern legal sense, the word carries with 
it the idea of "carnal knowledge," aggravated by assault, 
violent seduction, ravishment. See also Debauchery. 
Debauchery /d�b6ch�riy/. In general, excessive indul
gence in sensual pleasures; in a narrower sense, sexual 
immorality or excesses, or the unlawful indulgence of 
lust. 
De bene esse / diy biyniy esiy / d� biyniy· /. Conditional
ly; provisionally; in anticipation of future need. A 
phrase applied to proceedings which are taken ex parte 
or provisionally, and are allowed to stand as well done 
for the present, but which may be subject to future 
exception or challenge, and must then stand or fall 
according to their intrinsic merit and regularity. 
Examination de bene esse. A provisional examination of 
a witness. An examination of a witness whose testimo
ny is important and might otherwise be lost, held out of 
court and before the trial, with the proviso that the 
deposition so taken may be used on the trial in case the 
DEBET ET DETINET 
witness is unable to attend in person at that time or 
cannot be produced. See e.g. Fed.R.Civil P. 26, 27. 
Debenture / d�benty�r /. Long term unsecured debt in
strument, issued pursuant to an indenture. A promisso
ry note or bond backed by the general credit and earn
ing history of a corporation and usually not secured by a 
mortgage or lien on any specific property; e.g., an unse
cured bond. Holders of corporate debentures are credi
tors of the corporation and entitled to payment before 
shareholders upon dissolution. See also Bond; Inden
ture. Compare Secured bond. 
Certificate issued by customs to an importer for the 
deduction or refund of duties on merchandise imported 
and then exported by such importer. 
Convertible debenture. Debenture which may be 
changed or converted into some other security (e.g. 
stock) usually at the option of the holder. 
Convertible subordinated debenture. Debenture which is 
subject or subordinate to prior payment of other indebt
edness but which may be converted into another form of 
security. 
Sinking fund debenture. Debenture which is secured by 
periodic payments into sinking fund, commonly 
managed by trustee for purpose of retiring such debt. 
Subordinate debenture. Debenture which is subject to 
or subordinate to prior payment of other indebtedness. 
Debenture bond. Bonds not secured by any specific 
property but issued against the general credit of a 
corporation or government. 
Debenture indenture. An indenture containing obli
gations not secured by a mortgage or other collateral; a 
key instrument in the process of long term debt financ
ing for general business corporations. Its effect is to put 
the debenture-holder in substantially the same practical 
position as a bondholder secured by a first mortgage. 
See also Indenture. 
Debenture stock. In England, a stock or fund repre
senting money borrowed by a company or public body 
and charged on the whole or part of its property. An 
issue of stock usually irredeemable and transferable in 
any amount, not including a fraction of a pound. The 
terminability and fixity in amount of debentures being 
inconvenient to lenders led to their being in many cases 
superseded by debenture stock. 
Debet esse finis litium / deb�tesiy fayn�s lish(iy)�m/. 
There ought to be an end of suits; there should be some 
period put to litigation. 
Debet et detinet / deb�t et det�n�t/. (Lat. He owes and 
detains.) Words anciently used in the original writ (and 
now, in English, in the plaintiffs declaration), in an 
action of debt, where it was brought by one of the 
original contracting parties who personally gave the 
credit, against the other who personally incurred the 
debt, or against his heirs, if they were bound to the 
payment; as by the obligee against the obligor, by the 
landlord against the tenant, etc. The declaration, in 
such cases, states that the defendant "owes to," as well

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DEBET ET DETINET 
as "detains from," the plaintiff the debt or thing in 
question; and hence the action is said to be "in the debet 
et detinet". Where the declaration merely states that 
the defendant detains the debt (as in actions by and 
against an executor for a debt due to or from the 
testator), the action is said to be "in the detinet" alone. 
3 Bl.Comm. 155. 
Debet quis juri subjacere ubi delinquit 1 deb�t kwis 
juray s�bjres�riy yuwbay d�liIJkw�t/. One [every one] 
ought to be subject to the law [of the place] where he 
offends. 
Debet sine breve 1 deb�t sayniy briyviy I. (Lat. He 
owes without declaration filed.) Used in relation to a 
confession of judgment. 
Debet sua cuique domus esse perfugium tutissimum 
Ideb�t syuw� kyuwaykwiy dowm�s eSlY p�r
fyuwjiy�m tyuwtis�m�m/. Every man's house should be 
a perfectly safe refuge. 
De bien et de mal Id� byen ey d� mrell. L. Fr. For 
good and evil. A phrase by which a party accused of a 
crime anciently put himself upon a jury, indicating his 
entire submission to their verdict; also the name of the 
special writ of jail delivery formerly in use in England, 
which issued for each particular prisoner, of course. It 
was superseded by the general commission of jail deliv
ery. 
De biens Ie mort Id� biynz l� mor(t)/. L. Fr. Of the 
goods of the deceased. 
De bigamis 1 diy big�m�sl. Concerning men twice mar
ried. The title of the English statute 4 Edw. I, St. 3; so 
called from the initial words of the fifth chapter. 
Debile fundamentum fallit opus 1 deb�liy f�nd�ment�m 
frel�t owp�sl. A weak foundation frustrates [or renders 
vain] the work [built upon it]. When the foundation 
fails, all goes to the ground; as, where the cause of 
action fails, the action itself must of necessity fail. 
Debit 1 deb�t/. A sum charged as due or owing. An 
entry made on the asset side of a ledger or account. The 
term is used in book-keeping to denote the left side of 
the ledger, or the charging of a person or an account 
with all that is supplied to or paid out for him or for the 
subject of the account. Also, the balance of an account 
where it is shown that something remains due to the 
party keeping the account. 
As a noun, an entry on the left-hand side of an 
account. As a verb, to make an entry on the left-hand 
side of an account. A term used in accounting or 
book-keeping which results in an increase to an asset 
and an expense account and a decrease to a liability, 
revenue, or owner's equity account. 
Compare Credit. 
Debita laicorum 1 deb�t� ley�kor�m/. L. Lat. In old 
English law, debts of the laity, or of lay persons. Debts 
recoverable in the civil courts. 
Debita sequuntur personam debitoris Ideb�t� s�k
w;)nt�r p�rsown�m deb�tor�s/. Debts follow the person 
402 
of the debtor; that is, they have no locality, and may be 
collected wherever the debtor can be found. 
Debit balance. Account balance showing money owed 
to lender or seller. Accounting condition where there is 
an excess of debit over credit entries. 
Debitor 1 deb�br I. In the civil and old English law, a 
debtor. 
Debitor non prresumitur donare 1 deb�t�r non 
pr;}zyuwm�t�r d�neriy I. A debtor is not presumed to 
make a gift. Whatever disposition he makes of his 
property is supposed to be in satisfaction of his debts. 
Where a debtor gives money or goods, or grants land to 
his creditor, the natural presumption is that he means 
to get free from his obligation, and not to make a 
present, unless donation be expressed. 
Debitorum pactionibus creditorum petitio nec tolli 
nec minui potest 1 deb�tor;}m preksh(iy)own�b;}s 
kred�tor�m p�tish(iy)ow nek tolay nek miyuway 
powt�st/. The rights of creditors can neither be taken 
away nor diminished by agreements among (or of) the 
debtors. 
Debitrix Ideb�tr;}ks/. A female debtor. 
Debitum 1 deb�t�m/. Something due, or owing, a debt. 
Debitum et contractus sunt nullius loci 1 deb�t�m et 
k;}ntrrekt� s�nt n�lay�s lowsay I. Debt and contract are 
of [belong to] no place; have no particular locality. The 
obligation in these cases is purely personal, and actions 
to enforce it may be brought anywhere. 
Debitum in prresenti solvendum in futuro 1 deb;}t�m in 
pr;}zentay solvend�m in fy�tyurow I. A debt or obli
gation complete when contracted, but of which the per
formance cannot be required till some future period. 
Debitum sine brevi 1 deb�t�m sayniy briyvay I. L. Lat. 
Debt without writ; debt without a declaration. In old 
practice, this term denoted an action begun by original 
bill, instead of by writ. In modern usage, it is some
times applied to a debt evidenced by confession of judg
ment without suit. The equivalent Norman-French 
phrase was "debit sans breve." Both are abbreviated to 
d.s.b. 
De bone memorie 1 diy bowniy mem�riy I. L. Fr. Of 
good memory; of sound mind. 
De bonis asportatis 1 diy bown�s resp:)rteyt;}sl. For 
goods taken away; for taking away goods. The action of 
trespass for taking personal property is technically 
called "trespass de bonis asportatis." 
De bonis non 1 diy bown;}s non/. An abbreviation of De 
bonis non administratis (q. v.). 
De bonis non administratis 1 diy bown�s non �d
min�streyt�sl . Of the goods not administered. When 
an administrator is appointed to succeed another, who 
has left the estate partially unsettled, he is said to be 
granted "administration de bonis non;" that is, of the 
goods not already administered. 
De bonis non amovendis 1 diy b6wn�s non eym
�vend�s/. Writ for not removing goods. A writ ancient-

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403 
ly directed to the sheriffs of London, commanding them, 
in cases where a writ of error was brought by a defen
dant against whom a judgment was recovered, to see 
that his goods and chattels were safely kept without 
being removed, while the error remained undetermined, 
so that execution might be had of them, etc. 
De bonis propriis / diy bown;}s prowpriy;}s/. Of his own 
goods. The technical name of a judgment against an 
administrator or executor to be satisfied from his own 
property, and not from the estate of the deceased, as in 
cases where he has been guilty of a devastavit or of a 
false plea of plene administravit. 
De bonis testatoris, or intestati / diy bown;}s tes
t;}tor;}s/"intesteytay/. Of the goods of the testator, or 
intestate. A term applied to a judgment awarding exe
cution against the property of a testator or intestate, as 
distinguished from the individual property of his execu
tor or administrator. 
De bonis testatoris ac si / diy bown;}s test;}tor;}s rek say /. 
(Lat. From the goods of the testator, if he has any, and, 
if not, from those of the executor.) A judgment rendered 
where an executor falsely pleads any matter as a re
lease, or, generally, in any case where he is to be 
charged in case his testator's estate is insufficient. 
De bono et malo / diy bownow et mrelow /. See De bien 
et de mal. 
De bono gestu / diy bownow jestyuw /. For good behav
ior; for good abearance. 
Debt. A sum of money due by certain and express 
agreement. A specified sum of money owing to one 
person from another, including not only obligation of 
debtor to pay but right of creditor to receive and enforce 
payment. State v. Ducey, 25 Ohio App.2d 50, 266 
N.E.2d 233, 235. Liability on a claim. Bankruptcy 
Code § 101. 
A fixed and certain obligation to pay money or some 
other valuable thing or things, either in the present or 
in the future. In a still more general sense, that which 
is due from one person to another, whether money, 
goods, or services. In a broad sense, any duty to respond 
to another in money, labor, or service; it may even 
mean a moral or honorary obligation, unenforceable by 
legal action. Also, sometimes an aggregate of separate 
debts, or the total sum of the existing claims against a 
person or company. Thus we speak of the "national 
debt", the "bonded debt" of a corporation, etc. 
Active debt. One due to a person. Used in the civil law. 
Ancestral debt. One of an ancestor which the law 
compels the heir to pay. 
Antecedent debt. See that title. 
Bad debt. Uncollectible account receivable. Under Na
tional Bank Act, an unsecured debt on which interest or 
payment is past due for at least six months. See also 
Bad debt; Bad debt reserve. 
Bonded debt. Debt represented by bonds. See Bonded 
debt. 
DEBT 
Common-law action. The name of a common-law action 
which lies to recover a certain specific sum of money, or 
a sum that can readily be reduced to a certainty. It is 
thus distinguished from assumpsit, which lies as well 
where the sum due is uncertain as where it is certain, 
and from covenant, which lies only upon contracts evi
denced in a certain manner. 
It is said to lie in the debet and detinet (when it is 
stated that the defendant owes and detains), or in the 
detinet (when it is stated merely that he detains). Debt 
in the detinet for goods differs from detinue, because it 
is not essential in this action, as in detinue, that the 
specific property in the goods should have been vested in 
the plaintiff at the time the action is brought. 
Consumer debt. See Consumer debt. 
Contingent debt. See Contingent debt. 
Convertible debt. Debt which may be changed or con
verted by creditor into another form of security, e.g. 
shares of stock. See Debenture (Convertible debenture). 
Debt by simple contract. A debt or demand founded 
upon a verbal or implied contract, or upon any written 
agreement that is not under seal. 
Debt by specialty or special contract. A debt due, or 
acknowledged to be due, by some deed or instrument 
under seal; as a deed of covenant or sale, a lease 
reserving rent, or a bond or obligation. 2 Bl.Comm. 465. 
Debt of record. A debt which appears to be due by the 
evidence of a court of record, as by a judgment or 
recognizance. 2 Bl.Comm. 465. 
Existing debt. See Existing debt. 
Floating debt. Short-term or current debt, not repre
sented by securities. 
Fraudulent debt. A debt created by fraud. Such a debt 
implies confidence and deception. It implies that it 
arose out of a contract, express or implied, and that 
fraudulent practices were employed by the debtor, by 
which the creditor was defrauded. 
Funded debt. Debt represented by bonds or other secu
rities. 
General debt. See that title. 
Hypothecary debt. One which is a lien upon an estate. 
Installment debt. Debt which is to be repaid in install
ments; e.g. retail installment contract. 
Judgment debt. See Judgment debt. 
Legal debts. Those that are recoverable in a court of 
law, as debt on a bill of exchange, a bond, or a simple 
contract. 
Liquid debt. One which is immediately and uncondi
tionally due. See also Liquidated debt. 
Mutual debts. Money due on both sides between two 
persons. Such debts must be due to and from same 
persons in same capacity. Cross debts in the same 
capacity and right, and of the same kind and quality.

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DEBT
Passive debt. A debt upon which, by agreement be
tween the debtor and creditor, no interest is payable, as
distinguished from active debt; i.e., a debt upon which
interest is payable. As used in another sense, a debt is
"active" or "passive" according as the person of the
creditor or debtor is regarded; a passive debt being that
which a man owes; an active debt that which is owing to
him. In this meaning every debt is both active and
passive; active as regards the creditor, passive as re
gards the debtor.
Preferential debts. See that title.
Privileged debt. One which is to be paid before others in
case a debtor is insolvent; e.g. secured debt.
Proof of debt. See Proof.
Public debt. That which is due or owing by the govern
ment of a state or nation.
Secured debt. Debt secured by collateral; e.g. by mort
gage, securities, deed, etc. See Secured transaction.
Simple contract debt. At common law, one where the
contract upon which the obligation arises is neither
ascertained by matter of record nor yet by deed or
special instrument, but by mere oral evidence the most
simple of any, or by notes unsealed, which are capable of
a more easy proof, and therefore only better than a
verbal promise. 2 Bl.Comm. 466.
Specialty debt. See Debt by specialty or special contract,
above.
Unliquidated debt. See Un liquid ated debt.
Debt adjusting. Engagement in the business of making
contracts, express or implied, with a debtor whereby the
debtor agrees to pay a certain amount of money periodi
cally to the person engaging in the debt adjusting busi
ness who shall for a consideration distribute the same
among certain specified creditors. See also Debt adjust
ment; Debt pooling; Wage earner's plan.
Debt adjustment. Settlement of dispute regarding debt
obligation by compromise and adjustment. Term also
refers to adjustment of debts of an individual with
regular income as provided for under Chapter 13 of the
Bankruptcy Code. See also Bankruptcy proceed ings;
Compromise and settlement; Debt pooling; Wage earner's
plan.
Debt cancellation. Under federal tax law, discharge or
cancellation of indebtedness ordinarily results in income
to debtor when he settles debt for less than amount
which he owes. I.R.C. § 61(a)(12). See Bankr uptcy pro
ceed ings.
Debt consolidation. See Debt pooling.
Debtee. A person to whom a debt is due; a creditor.
Debt-equity ratio. An amount arrived at by dividing
total liabilities by total equity of an entity (e.g., total
liabilities of corporation divided by total shareholders'
equity). A high debt ratio is an indication that the
entity may have difficulty meeting obligations which
come due. A bank may be reluctant to provide financ-
404
ing to an entity with a high debt ratio due to the risks
associated with repayment. See also Debt ratio.
Debt financing. Raising funds by issuing bonds or notes
or borrowing from a financial institution. Contrasted
with equity financing which is raising funds by issuing
and selling stocks. Corporate borrowing of money, gen
erally on a long term basis for acquiring working capital
or for retiring current indebtedness.
Debt instrument. Written promise to repay debt; e.g.,
promissory note, bill, bond, commercial paper.
Debt limitations. Ceiling placed on amount of borrow
ings by individuals, corporations or governments. Cer
tain state constitutions prohibit deficit spending by
government.
Debtor. One who owes a debt to another who is called
the creditor; one who may be compelled to pay a claim
or demand; anyone liable on a claim, whether due or to
become due. First Nat. Bank & Trust Co. in Macon v.
Kunes, 128 Ga.App. 565, 197 S.E.2d 446, 449.
"Debtor" means "the person who owes payment or
other performance of the obligation secured, whether or
not he owns or has rights in the collateral, and includes
the seller of accounts or chattel paper. Where the
debtor and the owner of the collateral are not the same
person, the term 'debtor' means the owner of the collat
eral in any provision of the Article dealing with the
collateral, the obligor in any provision dealing with the
obligation, and may include both where the context so
requires." U.C.C. § 9-105(1)(d).
In bankruptcy law, person who files a voluntary peti
tion or person against whom an involuntary petition is ""'filed. Person or municipality concerning which a bank
ruptcy case has been commenced. Bankruptcy Code,
§ 101 . See Bankrup tcy.
See also Absconding debtor; Joint debtors.
Judgment debtor. One who owes money as a result of a
judgment in favor of a creditor.
Debtor in possession. In bankruptcy, refers to debtor
in a Bankruptcy Code Chapter 11 or Chapter 12 case.
For example, in a Chapter 11 case either the debtor will
remain in control of its business or assets or a trustee
will be appointed to take control of the business or
assets.
Debtor's Act of 1869. The English statute 32 & 33 Vict.
c. 62, abolishing imprisonment for debt in England, and
for the punishment of fraudulent debtors.
Debt pooling. Arrangement by which debtor adjusts
many debts by distributing his assets among several
creditors, who may or may not agree to take less than is
owed; or, an arrangement by which debtor agrees to pay
in regular installments a sum of money to one creditor
who agrees to discharge all his debts. Such activities
may constitute unauthorized practice of law (as in e.g.
Mass.), and formerly could be an act of bankruptcy. See
Act of bankruptcy; Arrangement with creditors; Assign
ment (Assignment for benefit of creditors); Bankruptcy
proceedings; Wage earner's plan.

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405 
Debt ratio. Amount of long-term debt divided by total 
of company's capital. See also Debt-equity ratio. 
Debt retirement. Repayment of debt. 
Debt security. Any form of corporate security reflected 
as debt on the books of the corporation in contrast to 
equity securities such as stock; e.g. bonds, notes and 
debentures are debt securities. 
Debt service. The interest and charges currently pay
able on a debt, including principal payments. 
De cretero / diy siyt�row / . Henceforth. 
De calceto reparando / diy kci!ls�tow rep�rrendow / . 
Writ for repairing a causeway. An old English writ by 
which the sheriff was commanded to distrain the inhab
itants of a place to repair and maintain a causeway, etc. 
Decalogue /dek�log/. The ten commandments which, 
according to Exodus XX, 1-18, were given by God to 
Moses. The Jews called them the "Ten Words," hence 
the name. 
Decanatus /dek�neyt�s/. A deanery. A company of ten 
persons. Also (and in this sense sometimes spelled 
Decania, or Decana), a town or tithing, consisting origi
nally of ten families of freeholders. Ten tithings com
pose a hundred. 1 Bl.Comm. 11 4. 
Decania /d�keyniy�/. The office, jurisdiction, territory, 
or command of a decanus, or dean. 
Decanus / d�keyn�s/. In ecclesiastical and old European 
law, an officer having supervision over ten; a dean. A 
term applied not only to ecclesiastical, but to civil and 
military, officers. Decanus monasticu s; a monastic 
dean, or dean of a monastery; an officer over ten monks. 
Decanus in majori ecclesire; dean of a cathedral church, 
presiding over ten prebendaries. Decanus episcopi; a 
bishop's or rural dean, presiding over ten clerks or 
parishes. Decanus friborgi; dean of a friborg. An offi
cer among the Saxons who presided over a friborg, 
tithing, decennary, or association of ten inhabitants; 
otherwise called a "tithing man," or "borsholder," his 
duties being those of an inferior judicial officer. Deca
nus milit aris; a military officer having command of ten 
soldiers. 
In Roman law, an officer having the command of a 
company or "mess" of ten soldiers. Also an officer at 
Constantinople having charge of the burial of the dead. 
De capitalibus dominis feodi / diy krep�tE�ybb�s 
d6m�nay fiy(�)day/. Of the chief lords of the fee. 
Decapitation. The act of beheading. A mode of capital 
punishment by cutting off the head. 
De capite minutis / diy krep�tiy m�nyuwt�s/. Of those 
who have lost their status, or civil condition. The name 
of a title in the Pandects. See Capitis deminu tio. 
De cartis reddendis / diy kart�s r�dend�s/. For restor
ing charters. A writ to secure the delivery of charters 
or deeds; a writ of detinue. 
DECEM TALES 
De catallis reddendis / diy btrebs r�dend�s/. For re
storing chattels. A writ to secure the return specifically 
of chattels detained from the owner. 
De cautione admittenda / diy koshiyowniy redm�tend�/. 
Writ to take caution or security. A writ which ancient
ly lay against a bishop who held an excommunicated 
person in prison for his contempt, notwithstanding he 
had offered sufficient security (idoneam cautionem) to 
obey the commands of the church; commanding him to 
take such security and release the prisoner. 
Decease, n. Death; not including civil death. See 
Death. 
Decease, v. To die; to depart life, or from life. 
Deceased. A dead person. See Decedent. 
Decedent. A deceased person, especially one who has 
lately died. Etymologically the word denotes a person 
who is dying, but it has come to be used in law as 
signifying any deceased person, testate or intestate. 
Decedent's estate. Property, both real and personal, 
which person possesses at the time of his death, and title 
to it descends immediately to his heirs upon his death 
subject to the control of the probate court for the pur
poses of paying debts and claims and after distribution 
the estate ceases to exist. Mathey v. Mathey, 109 Mont. 
467, 98 P.2d 373, 375. 
Deceit. A fraudulent and deceptive misrepresentation, 
artifice, or device, used by one or more persons to 
deceive and trick another, who is ignorant of the true 
facts, to the prejudice and damage of the party imposed 
upon. To constitute "deceit," the statement must be 
untrue, made with knowledge of its falsity or with 
reckless and conscious ignorance thereof, especially if 
parties are not on equal terms, made with intent that 
plaintiff act thereon or in a manner apparently fitted to 
induce him to act thereon, and plaintiff must act in 
reliance on the statement in the manner contemplated, 
or manifestly probable, to his injury. See also Fraud; 
Misrepresenta tion; Reliance. For larceny by deceit, see 
Larceny. 
In old English law, the name of an original writ, and 
the action founded on it, which lay to recover damages 
for any injury committed deceitfully, either in the name 
of another (as by bringing an action in another's name, 
and then suffering a nonsuit, whereby the plaintiff 
became liable to costs), or by a fraudulent warranty of 
goods, or other personal injury committed contrary to 
good faith and honesty. Also the name of a judicial writ 
which formerly lay to recover lands which had been lost 
by default by the tenant in a real action, in consequence 
of his not having been summoned by the sheriff, or by 
the collusion of his attorney. 
Decem tales / des�m teyliyz/. Ten such; or ten tales, 
jurors. In practice, the name of a writ which issued in 
England, where, on a trial at bar, ten jurors were neces
sary to make up a full panel, commanding the sheriff to 
summon the requisite number. 3 Bl.Comm. 364.

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DECEMVIRI LITIBUS JUDICANDIS 
Decemviri litibus judicandis I d:>semv:>ray lliyt:>b:>s 
juwd:>krend:>sl. Lat. In the Roman law, ten persons 
(five senators and five equites) who acted as the council 
or assistants of the prretor, when he decided on matters 
of law. 
Decency. Propriety of action, speech, dress, etc. 
Decenna Id:>sen:>/. In old English law, a tithing or 
decennary; the precinct of a frank-pledge; consisting of 
ten freeholders with their families. 
Decennarius I des:>neriy:>sl. Lat. One who held one
half a virgate of land. One of the ten freeholders in a 
decennary. Decennier. One of the decennarii, or ten 
freeholders making up a tithing. 1 Bl.Comm. 11 4. 
Decennary I d:>sen:>riy I. At common law a tithing, com
posed of ten neighboring families. 1 Bl.Comm. 11 4. 
Deception. The act of deceiving; intentional misleading 
by falsehood spoken or acted. Synonymous with fraud. 
Jackman v. Mau, 78 C.A. 234, 177 P.2d 599, 605. Know
ingly and willfully making a false statement or repre
sentation, express or implied, pertaining to a present or 
past existing fact. See also Bait and switch; Deceit; 
Fraud; Misrepresenta tion; Theft (theft by deception). 
Deceptione I d:>sepshiyowny I. An old writ which lay 
properly against one that deceitfully did anything in the 
name of another, for one that was damaged thereby. It 
was either original or judicial. 
Deceptis non decipientibus, jura subveniunt I d:>sept:>s 
non d:>sipiyent:>b:>s, jur:> s�bviyniy:>nt/. The laws help 
persons who are deceived, not those deceiving. 
Deceptive advertising. False and misleading advertis
ing. Advertisement which contains any assertion, rep
resentation or statement of fact which is untrue or 
misleading. 
Where the public are not cautious or watchful in their 
buying habits and are likely to be misled, the legislature 
may require not only the absence of active deception in 
advertising, but also affirmative measures to prevent 
misunderstanding. Com. v. Ferris, 305 Mass. 233, 25 
N.E.2d 378. See, e.g., Mass.G.L. c. 266, § 91; 15 U.S. 
C.A. § 52 et seq. 
See also Deceptive sales practices. 
Deceptive sales practices. The Federal Trade Commis
sion and statutes in most states make deceptive sales 
practices unlawful. Historically, an act was deceptive if 
it had any tendency to deceive a nontrivial number of 
customers. A more recent reformulation of the test 
defines a deceptive act as one which is likely to deceive a 
consumer acting reasonably in the circumstances. See, 
e.g., Mass.G.L. c. 93A, § 21(Z ); 15 U.S.C.A. § 45(a)(1). 
As term is used in consumer protection statutes, may 
import less than common law fraud in sale of goods or 
services though there must be some measure of deceit. 
Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 
N.E.2d 768, 779. A sales practice may be deceptive if it 
could reasonably be found to have caused person to act 
differently from way he otherwise would have acted. 
Kazmaier v. Wooten, C.A.Mass., 761 F.2d 46. 
406 
Such practices may encompass any type of business 
practice or action which deceives consumers, but acts or 
practices which are not among those listed by statute 
present jury question of whether action was deceptive. 
Southwest Lincoln-Mercury, Inc. v. Ross, Tex.Civ.App., 
580 S.W.2d 2, 5. See, e.g., Bait and switch. 
See also Consumer protection laws; Deceptive advertis
ing. 
De certificando I diy s�rt:>f:>krendow I. A writ requiring 
a thing to be certified. A kind of certiorari. 
Decertification. Process through which a group of em
ployees decides it no longer wants a union to be its 
bargaining unit. The process involves an election con
ducted by the National Labor Relations Board. 
De certiorando Idiy s�rsh(iy):>rrendow/. A writ for certi
fying. A writ directed to the sheriff, requiring him to 
certify to a particular fact. 
Decessus Id:>ses:>sl. In the civil and old English law, 
death; departure. 
Decet tamen principem servare leges quibus ipse 
servatus est I diys:>t trem:>n prins:>p:>m s:>rveriy liyjiyz 
kwib:>s ipsiy s:>rveyt:>s est/. It behooves, indeed, the 
prince to keep the laws by which he himself is pre
served. 
De champertia Idiy kremp�rsh(iy):>/. Writ of champer
ty. A writ directed to the justices of the bench, com
manding the enforcement of the statute of champertors. 
De char et de sank Id:> char ey d:>sreIJ(k)/. L. Fr. Of 
flesh and blood. Affaire rechat de char et de sank. 
Words used in claiming a person to be a villein, in the 
time of Edward II. 
De chimino I diy kim:>now I. A writ for the enforcement 
of a right of way. 
De cibariis utendis I diy s:>beriy:>s yuwtend:>sl. Of vict
uals to be used. The title of a sumptuary statute passed 
10 Edw. III, St. 3, to restrain the expense of entertain
ments. 
Decide. To arrive at a determination. To "decide" 
includes the power and right to deliberate, to weigh the 
reasons for and against, to see which preponderate, and 
to be governed by that preponderance. See Decision. 
Decies tantum I deshiyiyz trent:>m/. Ten times as much. 
The name of an ancient writ that was used against a 
juror who had taken a bribe in money for his verdict. 
The injured party could thus recover ten times the 
amount of the bribe. 
Decimre Ides:>miy/. In ecclesiastical law, tenths, or 
tithes. The tenth part of the annual profit of each 
living, payable formerly to the pope. There were sever
al valuations made of these livings at different times. 
The decimce (tenths) were appropriated to the crown, 
and a new valuation established, by 26 Hen. VIII, c. 3. 
1 Bl.Comm. 284. See Tithes. 
Decimre debentur parocho Ides:>miy d:>bent:>r p:>row
kow I. Tithes are due to the parish priest.

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407 
Decimre de decimatis solvi non debent Ides;;)miy diy 
des;;)meyt;;)s solvay non deb;;)nt/. Tithes are not to be 
paid from that which is given for tithes. 
Decimre de jure divino et canonica institutione perti
nent ad personam I des;;)miy diy juriy d;;)vliynow et 
k;;)non;;)k;;) inst;;)tyuwshiyowniy p�rt;;)n;;)nt red p;;)rsown;;)m/. 
Tithes belong to the parson by divine right and canoni
cal institution. 
Decimre non debent solvi, ubi non est annua renova
tio; et ex annuatis renovantibus simul semel 
Ides;;)miy non deb;;)nt solvay, yUwbay non est renyuw;;) 
ren;;)veysh(iy)ow; et eks renyuweyt;;)s ren;;)vrent;;)b;;)s 
sliym;;)l sem;;)lI. Tithes ought not to be paid where there 
is not an annual renovation, and from annual renova
tions once only. 
Decimation. The punishing of every tenth soldier by 
lot, for mutiny or other failure of duty. This was 
termed "decimatio legion is "by the Romans. Sometimes 
only the twentieth man was punished (vicesimat io), or 
the hundredth (centesima tio). 
Decipi quam fallere est tutius I des;;)pay kwrem frel;;)riy 
est tyuwsh(iy);;)s/. It is safer to be deceived than to 
deceive. 
Decision. A determination arrived at after considera
tion of facts, and, in legal context, law. A popular 
rather than technical or legal word; a comprehensive 
term having no fixed, legal meaning. It may be em
ployed as referring to ministerial acts as well as to those 
that are judicial or of a judicial character. 
A determination of a judicial or quasi judicial nature. 
A judgment, decree, or order pronounced by a court in 
settlement of a controversy submitted to it and by way 
of authoritative answer to the questions raised before it. 
The term is broad enough to cover both final judgments 
and interlocutory orders. And though sometimes limit
ed to the sense of judgment, the term is at other times 
understood as meaning simply the first step leading to a 
judgment; or as an order for judgment. The word may 
also include various rulings, as well as orders, including 
agency and commission orders. U. S. v. Thompson, 251 
U.S. 407, 40 S.Ct. 289, 291, 64 L.Ed. 333. 
The findings of fact and conclusions of law which 
must be in writing and filed with the clerk. Wilcox v. 
Sway, 69 Cal.App.2d 560, 160 P.2d 154, 156. 
"Decision" is not necessarily synonymous with "opin
ion." A decision of the court is its judgment; the 
opinion is the reasons given for that judgment, or the 
expression of the views of the judge. But the two words 
are sometimes used interchangeably. 
See also Decree; Final decision; Finding; Judgment; 
Opinion; Order; Verdict. 
Decision on merits. A decision determining the validity 
of a written instrument or passing on a controversy with 
respect to the interpretation thereof which bars subse
quent suit on same cause of action. Eulenberg v. Tor
ley's Inc., 56 Cal.App.2d 653, 133 P.2d 15, 17. 
Decisive, or decisory, oath. See Oath. 
DECLARATION 
Decker test. Under the "Decker test," an employee of a 
corporation, though not a member of its control group, is 
sufficiently identified with the corporation so that his 
communication to the corporation's lawyer is privileged 
where the employee made the communication at the 
direction of his supervisors and where the subject mat
ter on which the lawyer's advice was sought by the 
corporation and dealt with in the communication was 
with the performance by the employee of the duties of 
his employment. Virginia Elec. & Power Co. v. Sun 
Shipbuilding & Dry Dock Co., D.C.Va., 68 F.R.D. 397, 
401. 
De clamea admittenda in itinere per attornatum I diy 
kleymiy;;) redm;;)tend;;) in aytin;;)riy p;;)r ret;;)rneyt;;)m/. See 
Clamea admittenda, etc. 
Declarant. A person who makes a declaration. 
Declaration. In common-law pleading, the first of the 
pleadings on the part of the plaintiff in an action at law, 
being a formal and methodical specification of the facts 
and circumstances constituting his cause or action. It 
commonly comprises several sections or divisions, called 
"counts", and its formal parts follow each other in this 
general order: Title, venue, commencement, cause of 
action, counts, conclusion. The declaration, at common 
law, answers to the "libel" in ecclesiastical and admiral
ty law, the "bill" in equity, the "petition" in civil law, 
the "complaint" in code and rule pleading, and the 
"count" in real actions. The term "complaint" is used 
in the federal courts and in all states that have adopted 
Rules of Civil Procedure. 
In law of evidence, an unsworn statement or narration 
of facts made by party to the transaction, or by one who 
has an interest in the existence of the facts recounted. 
Also, similar statements made by a person since de
ceased, which are admissible in evidence in some cases, 
contrary to the general rule, e.g., "dying declarations" 
(q.v.). See also Declaration against interest, below. 
Listing by person entering United States of merchan
dise or other goods brought into country by him. 
The basic governing document or "constitution" for a 
condominium. 
A document by the owner of property which is record
ed in order to establish a legal order upon the property, 
such as a condominium (by a declaration of condomin
ium or master deed), a system of cross-easements (by a 
declaration of easements) or a homeowners association 
(by declaration of covenants, restrictions and ease
ments). 
Declarations against interest. An out of court statement 
by a declarant who is unavailable as a witness is admis
sible as an exception to the rule against hearsay if the 
statement was against his interest at the time it was 
made. Under the common law the statement must have 
been against the pecuniary or proprietary interest of the 
declarant. Under Federal Rule of Evidence 804(bX3) 
and the law of some states, the statement may also be 
admitted if it was against the penal interest of the 
declarant. However, the Federal Rule provides that a 
statement which tends to expose the declarant to crimi-

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DECLARATION 
nal liability and which is "off ered to exculpate the 
accused" is not admissible "unless corroborating circum
stances clearly indicate the trustworthiness of the state
ment." 
Such declarations are evidence of the fact declared, 
and are therefore distinct from admissions, which 
amount to a waiver of proof. They are statements 
which, when made, conflict with the pecuniary or pro
prietary interest of the person making them, or so far 
tend to subject him to civil or criminal liability, or to 
render invalid a claim by him against another, that a 
reasonable man in his position would not have made the 
statement unless he believed it to be true. 
Declaration in chief A declaration for the principal 
cause of action. 
Declaration of dividend. The act of a corporation in 
setting aside a portion of its net or surplus income for 
distribution among the stockholders according to their 
respective stock ownership. First Nat. Bank & Trust 
Co. v. Glenn, D.C.Ky., 36 F.Supp. 552, 554. See also 
Dividend. 
Declaration of homestead. Statement required to be 
filed with proper state or local official or agency show
ing property ownership for purposes of securing home
stead exemption rights. It is merely an act of the owner 
whereby he avails himself of, and secures, a right or 
privilege given him by statute; it is neither a convey
ance nor a contract, and there is no transfer of, or 
change in, title, nor any agreement of transfer or 
change. U. S. Fidelity & Guaranty Co. v. Alloway, 173 
Wash. 404, 23 P.2d 408. See also Homestead. 
Declaration of Independence. A formal declaration or 
announcement, proIhulgated July 4, 1776, by the Con
gress of the United States of America, in the name and 
behalf of the people of the colonies, asserting and pro
claiming their independence of the British crown, vindi
cating their pretensions to political autonomy, and an
nouncing themselves to the world as a free and indepen
dent nation. 
Declaration of intention. A declaration made by an 
alien, as a preliminary to naturalization, before a court 
of record, to the effect that it is his intention in good 
faith to become a citizen of the United States, and to 
renounce forever all allegiance and fidelity to any for
eign prince, potentate, state, or sovereignty whereof at 
the time he may be a citizen or subject. 8 U.S.C.A. 
§ 1445. 
Declaration of legitim acy. Formal pronouncement that 
a person is a legitimate child. 
Declaration of pain. Exception to hearsay rule which 
permits testimony of out of court statement consisting of 
declarant's exclamation of present pain. Fed.Evid.R. 
803(3). 
Declaration of right. See Bill of Rights. 
Declaration of state of mind. Exception to hearsay rule 
which permits testimony of out of court statement con-
408 
cerning person's state of mind, e.g. "I am sad". Fed. 
Evid.R. 803(3). 
Declaration of trust. The act by which the person who 
holds the legal title to property or an estate acknowl
edges and declares that he holds the same in trust to the 
use of another person or for certain specified purposes. 
The name is also used to designate the deed or other 
writing embodying such a declaration. 
Declaration of war. A public and formal proclamation 
by a nation, through its executive or legislative depart
ment, that a state of war exists between itself and 
another nation, and forbidding all persons to aid or 
assist the enemy. 
An act of Congress is necessary to the commencement 
of a foreign war and is in itself a "declaration" and fixes 
the date of the war. Rosenau v. Idaho Mut. Ben. Ass'n, 
65 Idaho 408, 145 P.2d 227, 230. See Art. I, Sec. 8, cl. 
11, U.S. Const. 
Dying declarations. Statements made by a person who 
believes he is about to die in reference to the manner in 
which he received the injuries of which he is dying, or 
other immediate cause of his death, and in reference to 
the person who inflicted such injuries or the connection 
with such injuries of a person who is charged or suspect
ed of having committed them. Such statements are 
admissible in evidence as an exception to the hearsay 
rule in a trial for homicide (and occasionally, at least in 
some jurisdictions, in other cases) where the killing of 
the declarant is the crime charged to the defendant. 
Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 
196. 
Generally, the admissibility of such declarations is 
limited to use in prosecutions for homicide; but is ad
missible on behalf of accused as well as for prosecution. 
In a prosecution for homicide or in a civil action or 
proceeding, a statement made by a declarant while 
believing that his death was imminent, concerning the 
cause or circumstances of what he believed to be his 
impending death is not excluded by the hearsay rule. 
Fed.Evid.R. 804(b)(2). 
Selfserving declaration. One made by a party in his 
own interest at some time and place out of court; not 
including testimony which he gives as witness at the 
trial. 
Declaration date. The day on which directors of a 
corporation declare a dividend as contrasted with date 
on which the dividend is actually paid. See Ex dividend. 
Declaration of estimated tax. A tax payment proce
dure whereby non-wage earner individuals, and wage 
earners with other income not subject to withholding, as 
well as corporations are required to file declarations of 
estimated tax and make periodic payments of such. 
This requirement assures current collection of taxes 
from taxpayers whose incomes are not taxed, or fully 
taxed, by means of payroll withholdings. I.R.C. §§ 6015, 
6154. See Estimated tax. 
Declaration of Paris. The name given to an agreement 
announcing four important rules of international law

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409 
effected between the principal European powers at the 
Congress of Paris in 1856. These rules are: (1) Priva
teering is and remains abolished; (2) the neutral flag 
covers enemy's goods, except contraband of war; (3) 
neutral goods, except contraband of war, are not liable 
to confiscation under a hostile flag; (4) blockades, to be 
binding, must be effective. 
Declaration of Taking Act. Federal law governing 
taking of private property for public use under eminent 
domain. 40 U.S.C.A. §§ 58a-258e; U. S. v. Miller, 317 
U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336. See Eminent do
main. 
Declarator of trust. A common law action resorted to 
against a trustee who holds property upon titles ex facie 
for his own benefit. 
Declaratory. Explanatory; designed to fix or elucidate 
what before was uncertain or doubtful. 
Declaratory action. See Decl aratory judgment. 
Declaratory judgment. Statutory (see Decl aratory Judg
ment Act) remedy for the determination of a justiciable 
controversy where the plaintiff is in doubt as to his legal 
rights. A binding adjudication of the rights and status 
of litigants even though no consequential relief is award
ed. Brimmer v. Thomson, Wyo., 521 P.2d 574, 579. 
Such judgment is conclusive in a subsequent action 
between the parties as to the matters declared and, in 
accordance with the usual rules of issue preclusion, as to 
any issues actually litigated and determined. Seaboard 
Coast Line R. Co. v. Gulf Oil Corp., C.A.Fla., 409 F.2d 
879. 
Declaratory Judgment Act. Federal statute enacted in 
1934, 28 U.S.C.A. § 2201, which permits bringing of 
complaint for a declaration of rights if there is an actual 
controversy between the parties. The judgment is bind
ing as to present and future rights of the parties to the 
action. See Fed.R.Civil P. 57. Most states have statutes 
of a like or similar nature; many of which are patterned 
on The Uniform Declaratory Judgments Act. See also 
Decl aratory judgment. 
Declaratory part of a law. That which clearly defines 
rights to be observed and wrongs to be eschewed. 
Declaratory relief. See Decl aratory judgment. 
Declaratory statute. One enacted for the purpose of 
removing doubts or putting an end to conflicting deci
sions in regard to what the law is in relation to a 
particular matter. It may either be expressive of the 
common law, 1 Bl.Comm. 86; In re Ungaro's Will, 88 
N.J.Eq. 25, 102 A. 244, 246, or may declare what shall be 
taken to be the true meaning and intention of a previous 
statute, though in the latter case such enactments are 
more commonly called "expository statutes." McMahon 
v. Maddox, Tex.Civ.App., 297 S.W. 310, 312. A statute 
enacted to put an end to a doubt as to what is the 
common law, or the meaning of another statute, and 
which declares what it is and ever has been. Nelson v. 
Sandkamp, 227 Minn. 177, 34 N.W.2d 640, 642. 
DE COMMUNI DIVIDUNDO 
Declare. To make known, manifest, or clear. To signi
fy, to show in any manner either by words or acts. To 
publish; to utter; to announce clearly some opinion or 
resolution. To solemnly assert a fact before witnesses, 
e.g., where a testator declares a paper signed by him to 
be his last will and testament. See Declaration. 
De claro die Idiy klerow day(iy)/. By daylight. 
De clauso fracto I diy k16zow frrektow I. Of close broken; 
of breach of close. See Clausum fregit. 
De clerico admittendo I diy klehr�kow redm�tendow I. 
See Admittendo clerico. 
De clerico capto per statutum mercatorium deliber
ando I diy klehr�kow kreptow par st�tyUwt�m 
mark�t6riy�m d�lib�rrendow/. Writ for delivering a 
clerk arrested on a statute merchant. A writ for the 
delivery of a clerk out of prison, who had been taken 
and imprisoned upon the breach of a statute merchant. 
De clerico convicto deliberando I diy klehr�kow 
k�nviktow d�lib�rrendow I. See Clerico convicto, etc. 
De clerico infra sacros ordines constituto non eligen
do in officium I diy klehr�kow infr� srekrows 6rd�niyz 
konst�tyuwtow non el�jendow in �fis(h)iy�m/. See Cleri
co infra sacros, etc. 
De clero Idiy klirow/. Concerning the clergy. The title 
of the statute 25 Edw. III, St. 3; containing a variety of 
provisions on the subject of presentations, indictments of 
spiritual persons, and the like. 
Declination. Document filed in court by a fiduciary who 
chooses not to serve in his named capacity. At common 
law, a plea to the courts' jurisdiction on the ground that 
the judge is personally interested in the suit. 
Declinatoires Ideykliynatwarz/. In French law, pleas 
to the jurisdiction of the court; also of lis pendens, and 
of connexite (q.v .). 
Declinatory exceptions I d�klayn�toriy �ksepsh�nsl . 
Such dilatory exceptions as merely decline the jurisdic
tion of the judge before whom the action is brought. A 
plea to the jurisdiction ratioTUe persoTUe. 
Declinatory plea I d�klayn�toriy pliy I. In English prac
tice, the plea of sanctuary, or of benefit of clergy, before 
trial or conviction. 4 Bl.Comm. 333. Now abolished. 
Decline. A failing process, a tendency to a worse state; 
to become gradually impaired; a falling off or downward 
tendency. Also, to refuse or reject. 
Decoctor Id�k6kt�r/. In the Roman law, a bankrupt; a 
spendthrift; a squanderer of public funds. 
Decollatio Idiykoleysh(iy)ow/. In old English and 
Scotch law, decollation; the punishment of beheading. 
De combustione domorum I diy k�mbast(i)y6wniy 
dam6r�m/. of house burning. One of the kinds of 
appeal formerly in use in England. 
De communi dividundo I diy k�myuwnay div�d:indow I. 
For dividing a thing held in common. The name of an 
action given by the civil law.

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DE COMON DROIT 
De comon droit Id;} k6m;}n dr6ytl. L. Fr. Of common 
right; that is, by the common law. 
Decomposed. A state of decomposition. A separation 
into components; specifically, decay or dissolution. In 
re Vetter, Cust. & Pat.App., 96 F.2d 999, 1000. 
De computo Idiy k6mpy;}tow/. Writ of account. A writ 
commanding a defendant to render a reasonable account 
to the plaintiff, or show cause to the contrary. The 
foundation of the modern action of account. 
De concilio curire I diy k;}nsiliyow kyuriyiy I. By the 
advice (or direction) of the court. 
Deconfes. In French law, a name formerly given to 
those persons who died without confession, whether they 
refused to confess or whether they were criminals to 
whom the sacrament was refused. 
De conflictu legum Idiy k;}nflikt(y)uw liyg;}m/. Con
cerning the conflict of laws. The title of several works 
written on that subject. 
De conjunctim feoffatis I diy k;}nj:ilJkt;}m fiyfeyt;}s/. 
Concerning persons jointly enfeoffed, or seised. The 
title of the statute 34 Edw. I, which was passed to 
prevent the delay occasioned by tenants in novel disseis
in, and other writs, pleading that some one else was 
seised jointly with them. 
De consanguineo, and de consanguinitate I diy kCln
sreIJgwiniyow I diy konsreIJgwin;}teytiy I. Writs of cosi
nage (q.v.). 
De consilio Idiy k;}nsiliyow/. In old criminal law, of 
counsel; concerning counsel or advice to commit a 
crime. 
De consilio curire I diy bnsiliyow kyuriyiy I. By the 
advice or direction of the court. 
De continuando assisam I diy k;}ntinyuwrendow ;}say
z;}m/. Writ to continue an assise. 
De contumace capiendo I diy konty;}meysiy krepiyen
dow/. Writ for taking a contumacious person. A writ 
which issues out of the English court of chancery, in 
cases where a person has been pronounced by an ecclesi
astical court to be contumacious, and in contempt. It is 
a commitment for contempt. 
De copia libelli deliberanda I diy k6wpiy;} bbelay' 
d;}lib;}rrend;}I . Writ for delivering the copy of a libel. 
An ancient writ directed to the judge of a spiritual 
court, commanding him to deliver to a defendant a copy 
of the libel filed against him in such court. The writ in 
the register was directed to the Dean of the Arches, and 
his commissary. 
De coronatore eligendo I diy kor;}n;}t6riy ebjendow I. 
Writ for electing a coroner. A writ issued to the sheriff 
in England, commanding him to proceed to the election 
of a coroner, which is done in full county court, the 
freeholders being the electors. 
De coronatore exonerando I diy kor;}n;}t6riy ;}kson
;}rrendow/. Writ for discharging or removing a coroner. 
A writ by which a coroner in England may be removed 
410 
from office for some cause therein assigned. 1 Bl.Comm. 
348. 
De corpore comitatus I diy k6rp;}riy kom;}teyt;}s/. From 
the body of the county at large, as distinguished from a 
particular neighborhood (de vicineto). 3 Bl.Comm. 360. 
Used with reference to the composition of a jury. 
De corrodio habendo I diy br6wdiyow h;}bendow I. 
Writ for having a corody. A writ to exact a corody from 
a religious house. See Corody. 
Decoy. To inveigle, entice, tempt, or lure; as, to decoy a 
person within the jurisdiction of a court so that he may 
be served with process, or to decoy a fugitive criminal to 
a place where he may be arrested without extradition 
papers, or to decoy one away from his place of residence 
for the purpose of kidnapping him and as a part of that 
act. In all these uses the word implies enticement or 
luring by means of some fraud, trick, or temptation, but 
excludes the idea of force. Compare Entrapment. 
Decoy letter. A letter prepared and mailed for the 
purpose of detecting a criminal, particularly one who is 
perpetrating frauds upon the postal or revenue laws. 
Decree. The judgment of a court of equity or chancery, 
answering for most purposes to the judgment of a court 
of law. A decree in equity is a sentence or order of the 
court, pronounced on hearing and understanding all the 
points in issue, and determining the rights of all the 
parties to the suit, according to equity and good con
science. It is a declaration of the court announcing the 
legal consequences of the facts found. With the proce
dural merger of law and equity in the federal and most 
state courts under the Rules of Civil Procedure, the term 
"judgment" has generally replaced "decree". See Fed.R. 
Civil P. 54(a). See also Decision; Judgment; Order. 
General Classification 
Decrees in equity are either final or interlocutory. A 
final decree is one which fully and finally disposes of the 
whole litigation, determining all questions raised by the 
case, and leaving nothing that requires further judicial 
action. An interlocutory decree is a provisional or pre
liminary decree, which is not final and does not deter
mine the suit, but directs some further proceedings 
preparatory to the final decree. It is a decree pro
nounced for the purpose of ascertaining matter of law or 
fact preparatory to a final decree. Where something 
more than the ministerial execution of the decree as 
rendered is left to be done, the decree is interlocutory, 
and not final, even though it settles the equities of the 
bill. Lodge v. Twell, 135 U.S. 232, 10 S.Ct. 745, 34 L.Ed. 
153. The difficulty of exact definition is mentioned in 
McGourkey v. Ry. Co., 146 U.S. 536, 13 S.Ct. 170, 36 
L.Ed. 1079. 
Consent decree. A judgment entered by consent of the 
parties whereby the defendant agrees to stop alleged 
illegal activity without admitting guilt or wrongdoing. 
Agreement by defendant to cease activities asserted as 
illegal by government (e.g. deceptive advertising practic
es as alleged by F.T.C.). Upon approval of such agree-

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411 
ment by the court the government's action against the 
defendant is dropped. Also, a decree entered in an 
equity suit on consent of both parties; it is not properly 
a judicial sentence, but is in the nature of a solemn 
contract or agreement of the parties, made under the 
sanction of the court, and in effect an admission by them 
that the decree is a just determination of their rights 
upon the real facts of the case, if such facts had been 
proved. It binds only the consenting parties; and is not 
binding upon the court. 
Decree nisi / d;)kriy miysay / . A provisional decree, 
which will be made absolute on motion unless cause be 
shown against it. Interlocutory judgment or decree in 
divorce action. In English practice, it is the order made 
by the court for divorce, on satisfactory proof being 
given in support of a petition for dissolution of marriage; 
it remains imperfect for a certain period (which period 
may be shortened by the court), and then', unless suffi
cient cause be shown, it is made absolute on motion, and 
the dissolution takes effect, subject to appeal. It effects 
a conditional divorce, becoming absolute only upon the 
happening of a prescribed contingency. 
Decree of distribution. An instrument by which heirs 
receive property of a deceased; it is a final determina
tion of the parties to a proceeding. 
Decree of insolvency. One entered in a probate court, 
declaring the estate in question to be insolvent, that is, 
that the assets are not sufficient to pay the debts in full. 
Decree of nullity. One entered in a suit for the annul
ment of a marriage, and adjudging the marriage to have 
been null and void ab initio. See NUll ity. 
Decree pro confesso. One entered in a court of equity in 
favor of the complainant where the defendant has made 
no answer to the bill and its allegations are consequent
ly taken "as confessed." It is merely an admission of 
the allegations of the bill well pleaded. 
Deficiency decree. In a mortgage foreclosure suit, a 
decree for the balance of the indebtedness after applying 
the proceeds of a sale of the mortgaged property to such 
indebtedness. 
For Execution of decree, see Execution. 
Decreet absolvitor / d�kriyt ;)bzolv�t�r / . A decree dis
missing a claim, or acquitting a defendant. 
Decreet arbitral / d�kriyt arb;)tr�l/. An award of arbi
trators. 
Decreet cognitionis causa / d�kriyt kognishiyown�s 
koz�/. When a creditor brings his action against the 
heir of his debtor in order to constitute the debt against 
him and attach the lands, and the heir appears and 
renounces the succession, the court then pronounces a 
decree cognitionis causa. 
Decreet condemnator / d�kriyt kond�mneyt;)r /. One 
where the decision is in favor of the plaintiff. 
Decreet of valuation of teinds / d�kriyt ;)v 
vrelyuweysh�n ;)v tiyndz/. A sentence of the court of 
sessions (who are now in the place of the commissioners 
DECROWNING 
for the valuation of teinds), determining the extent and 
value of teinds. 
Decrementum maris / dekr�ment�m mrer�s/. Lat. In 
old English law, decrease of the sea; the receding of the 
sea from the land. See Relic tion. 
Decrepit / d;)krep�tI. This term designates a person who 
is disabled, incapable, or incompetent, either from physi
cal or mental weakness or defects, whether produced by 
age or other causes, to such an extent as to render the 
individual comparatively helpless in a personal conflict 
with one possessed of ordinary health and strength. 
Lutz v. State, 147 Tex.Cr.R. 236, 179 S.W.2d 979, 980. 
The term includes a blind man. Lewing v. State, 135 
Tex.Cr.R. 485, 121 S.W.2d 599, 600. 
Decreta /d;)kriyt�/. In the Roman law, judicial sen
tences given by the emperor as supreme judge. 
Decreta conciliorum non ligant reges nostros 
/ d�kriyt� k�nsiliyor�m non lig�nt riyjiyz nostrows/. 
The decrees of councils bind not our kings. 
Decretal / d;)kriyt�l/ . The granting or denying of reme
dy sought. State v. Reagan County Purchasing Co., 
Tex.Civ.App., 186 S.W.2d 128, 134. 
Decretal order / d�kriyt;)l ord;)r /. A preliminary order 
that determines no question upon the merits and estab
lishes no right. 
Decretals / d�kriyt;)lz/. In ecclesiastical law, letters of 
the pope, written at the suit or instance of one or more 
persons, determining some point or question in ecclesias
tical law, and possessing the force of law, within the 
Roman Catholic Church. The decretals form the second 
part of the body of canon law. 
This is also the title of the second of the two great 
divisions of the canon law, the first being called the 
"Decree" (decretum). 
Decreto /deykreytow/. In Spanish colonial law, an or
der emanating from some superior tribunal, promul
gated in the name and by the authority of the sovereign, 
in relation to ecclesiastical matters. 
Decretum /d�kriyt�m/. In the civil law, a species of 
imperial constitution, being a judgment or sentence giv
en by the emperor upon hearing of a cause (quod imper
ator cognoscens decrevit). 
In canon law, an ecclesiastical law, in contradistinc
tion to a secular law (lex). 
Decretum gratiani / d�kriyt�m greyshiyeynay /. Gra
tian's decree, or decretum. A collection of ecclesiastical 
law in three books or parts, made in the year 11 51, by 
Gratian, a Benedictine monk of Bologna, being the old
est as well as the first in order of the collections which 
together form the body of the Roman canon law. 1 
Bl.Comm. 82. 
Decriminalization. An official act generally accom
plished by legislation, in which an act or omISSIon, 
formerly criminal, is made non-criminal and without 
punitive sanctions. 
Decrowning. The act of depriving of a crown.

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DECRY 
Decry. To cry down; to deprive of credit; to deprecate, 
disparage or belittle. "The king may at any time decry 
or cry down any coin of the kingdom, and make it no 
longer current." 1 Bl.Comm. 278. 
De cujus I diy kyuwj�s/. Lat. From whom. A term 
used to designate the person by, through, from, or under 
whom another claims. 
De curia claudenda I diy kyuriy� klodend�/. An obso
lete writ, to require a defendant to fence in his court or 
land about his house, where it was left open to the 
injury of his neighbor's freehold. 
Decurio I d�kyuriyow I. Lat. A decurion. In the pro
vincial administration of the Roman empire, the decu
rions were the chief men or official personages of the 
large towns. Taken as a body, the decurions of a city 
were charged with the entire control and administration 
of its internal affairs; having powers both magisterial 
and legislative. 
De cursu I diy k�rsyuw I. Of course. The usual, neces
sary, and formal proceedings in an action are said to be 
de cursu; as distinguished from summary proceedings, 
or such as are incidental and may be taken on summons 
or motion. Writs de cursu are such as are issued of 
course, as distinguished from prerogative writs. 
De custode admittendo I diy k�st6wdiy redm�tendow I. 
Writ for admitting a guardian. 
De custode amovendo I diy k�st6wdiy eym�vendow I. 
Writ for removing a guardian. 
De custodia terrre et hreredis I diy k�st6wdiy� tehriy et 
h�riyd�s/. Writ of ward, or writ of right of ward. A 
writ which lay for a guardian in knight's service or in 
socage, to recover the possession and custody of the 
infant, or the wardship of the land and heir. 3 Bl. 
Comm. 141. 
Dedbana Idedbeyn�/. In Saxon law, an actual homicide 
or manslaughter. 
De debito ldiy deb�tow/. A writ of debt. 
De debitore in partes secando I diy deb�t6riy in partiyz 
s�krendow I. In Roman law; "Of cutting a debtor in 
pieces." This was the name of a law contained in the 
Twelve Tables, the meaning of which has occasioned 
much controversy. Some commentators have concluded 
that it was literally the privilege of the creditors of an 
insolvent debtor (all other means failing) to cut his body 
into pieces and distribute it among them. Others con
tend that the language of this law must be taken figura
tively, denoting a cutting up and apportionment of the 
debtor's estate. 
De deceptione I diy d�sepshiy6wniy I. A writ of deceit 
which lay against one who acted in the name of another 
whereby the latter was damnified and deceived. 
De deoneranda pro rata portionis I diy diyown�rrend� 
prow reyt� porshiy6wn�s/. Writ that lay where one was 
distrained for rent that ought to be paid by others 
proportionably with him. 
412 
Dedi I diyday I. (Lat. I have given.) A word used in 
deeds and other instruments of conveyance when such 
instruments were made in Latin, and anciently held to 
imply a warranty of title. 
Dedicate. To appropriate and set apart one's private 
property to some public use; as to make a private way 
public by acts evincing an intention to do so. 
Dedication. The appropriation of land, or an easement 
therein, by the owner, for the use of the public, and 
accepted for such use by or on behalf of the public. 
Such dedication may be express where the appropriation 
is formally declared, or by implication arising by opera
tion of law from the owner's conduct and the facts and 
circumstances of the case. Varallo v. Metropolitan 
Government of Nashville and Davidson County, Tenn. 
App., 508 S.W.2d 342, 346. A deliberate appropriation 
of land by its owner for any general and public uses, 
reserving to himself no other rights than such as are 
compatible with the full exercise and enjoyment of the 
public uses to which the property has been devoted. 
Consolidated Realty Co. v. Richmond Hotel & Building 
Co., 253 Ky. 463, 69 S.W.2d 985. See also Dedication and 
reservation. 
By adverse user. A dedication may arise from an ad
verse exclusive use by the public under a claim of right 
with the knowledge, actual or imputed, and acqui
escence of the owner. 
Common-law or statu tory. A common-law dedication is 
one made as above described, and may be either express 
or implied. A statutory dedication is one made under 
and in conformity with the provisions of a statute regu
lating the subject, and is of course necessarily express. 
An "express common-law dedication" is one where the 
intent is expressly manifested, such as by ordinary 
deeds, recorded plats not executed pursuant to statute or 
defectively certified so as not to constitute a statutory 
dedication. Board of Com'rs of Garfield County v. 
Anderson, 167 Okl. 253, 29 P.2d 75, 78. 
Copyright law. At common law, the creator of a work 
has the right to copy and profit from it and distribute it 
or show it to a limited class of persons for a limited 
purpose without losing such right, and the right contin
ues until the creator allows general publication of the 
work to occur. A general publication of work occurs 
when the work is made available to members of the 
public at large without regard to whom they are or what 
they propose to do with it, and common law copyright 
may be lost by general publication or by an unrestricted 
sale of a single copy. Clark Equipment Co. v. Harlan 
Corp., D.C.Kan., 539 F.Supp. 561 . Dedication of work to 
the public domain is a question of law, not intent of 
proprietor. Data Cash Systems, Inc. v. JS & A Group, 
Inc., C.A.Ill., 628 F.2d 1038, 1043. 
Express or implied. A dedication may be express, as 
where the intention to dedicate is expressly manifested 
by a deed or an explicit oral or written declaration of 
the owner, or some other explicit manifestation of his 
purpose to devote the land to the public use. An im
plied dedication may be shown by some act or course of

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413 
conduct on the part of the owner from which a reason
able inference of intent may be drawn, or which is 
inconsistent with any other theory than that he intend
ed a dedication. 
Statutory dedication. Such occurs when owner of prop
erty files or records a plat which marks or notes on plat 
portions of premises as donated or granted to public; it 
results in conveyance of dedicated portions in fee simple 
to public. Water Products Co. of Illinois, Inc. v. Gabel, 2 
Dist., 120 Ill.App.3d 668, 76 Ill.Dec. 194, 197, 458 N.E.2d 
594, 597. 
Dedication and reservation. The dedicator may im
pose reasonable conditions, restrictions and limitations, 
and compliance therewith is essential unless waived. 
Dedicator may reserve a new right in himself by way of 
implied grant and may include rights personal or rights 
appurtenant to the land. At common law, a reservation 
in a dedication is not perpetuaL 
Dedication-day. The feast of dedication of churches, or 
rather the feast day of the saint and patron of a church, 
which was celebrated not only by the inhabitants of the 
place, but by those of all the neighboring villages, who 
usually came there; and such assemblies were allowed 
as lawfuL It was usual for the people to feast and to 
drink on those days. 
De die in diem /diy dayiy in day;}m/. From day to day. 
Dedi et concessi / diyday et k;}nsesay /. I have given and 
granted. The operative words of conveyance in ancient 
charters of feoffment, and deeds of gift and grant; the 
English "given and granted" being still the most proper, 
though not the essential, words by which such convey
ances are made. 2 BLComm. 53, 316, 317. 
Dedimus et concessimus / ded;}m;}s et k;}nses;}m;}s/. 
(Lat. We have given and granted.) Words used by the 
king, or where there were more grantors than one, 
instead of dedi et concessi. 
Dedimus potestatem / ded;}m;}s powt;}steyt;}m/. (We 
have given power.) In old English practice, a writ or 
commission issuing out of chancery, empowering the 
persons named therein to perform certain acts, as to 
administer oaths to defendants in chancery and take 
their answers, to administer oaths of office to justices of 
the peace, etc. 3 BLComm. 447. It was anciently al
lowed for many purposes not now in use, as to make an 
attorney, to take the acknowledgment of a fine, etc. 
In the United States, a commission to take testimony 
was sometimes termed a "dedimus potestatem. " 
Dedimus potestatem de attorno faciendo / ded;}m;}s 
powt;}steyt;}m diy ;}t�rnow feys(h)iyendow / . In old Eng� 
lish practice, a writ, issued by royal authority, empower
ing an attorney to appear for a defendant. Prior to the 
statute of Westminster 2, a party could not appear in 
court by attorney without this writ. 
Dedition /d;}dish;}n/. The act of yielding up anything; 
surrender. 
Dedititii /diyd;}tayshiyay/. In Roman law, criminals 
who had been marked in the face or on the body with 
DEDUCTION 
fire or an iron, so that the mark could not be erased, and 
subsequently manumitted. 
De diversis regulis juris antiqui / diy d;}v�rs;}s regy;}bs 
jur;}s rentaykway/. Of divers rules of the ancient law. 
A celebrated title of the Digests, and the last in that 
collection. It consists of two hundred and eleven rules 
or maxims. 
De dolo malo / diy d6wlo m�How /. Of or founded upon 
fraud. See Actio de dolo malo. 
De domo reparanda / diy d6wmow rep;}rrend;}/. A writ 
which lay for one tenant in common to compel his 
cotenant to contribute towards the repair of the common 
property. 
De donis /diy d6wn;}s/. Concerning gifts (or more fully, 
de donis conditionalibus, concerning conditional gifts). 
The name of a celebrated English statute, passed in the 
thirteenth year of Edw. I, and constituting the first 
chapter of the statute of Westm. 2, by virtue of which 
estates in fee-simple conditional (formerly known as 
"dona conditionalia") were converted into estates in 
fee-tail and rendered inalienable, thereby strengthening 
the power of the nobles. 2 Bl.Comm. 11 2. 
De dote assignanda /diy d6wtiy res;}gnrend;}/. Writ for 
assigning dower. A writ which lay for the widow of a 
tenant in capite, commanding the king's escheater to 
cause her dower to be assigned to her. 
De dote unde nihil habet / diy d6wtiy �ndiy nay;}l 
heyb;}t/. A writ of dower which lay for a widow where 
no part of her dower had been assigned to her. It is not 
much used; but a form closely resembling it was some
times used in the United States. 
Deductible. That which may be taken away or subtract
ed. In taxation, an item which may be subtracted from 
gross income or adjusted gross income in determining 
taxable income (e.g., interest expenses, charitable contri
butions, certain taxes, etc.). See also Deduction. 
The portion of an insured loss to be borne by the 
insured before he is entitled to recovery from the insur
er. See Deductible clause. 
Deductible clause. Clause in insurance policy provid
ing that insured will absorb first part of loss (e.g. first 
$100) with insurer paying the excess. 
Deduction. That which is deducted; the part taken 
away; abatement; as deductions from gross income in 
arriving at net income for tax purposes. 
In the civil law, a portion or thing which an heir has a 
right to take from the mass of the succession before any 
partition takes place. Civil Code La. art. 1358. 
See also Charitable deduction; Deductible; Marital de
duction; Orphan's deduction. 
Itemized deductions. Those expenses which are allowed 
as deductions from adjusted gross income, itemized in 
detail under their appropriate captions, and subtracted 
to arrive at income subject to tax (e.g. taxes, charitable 
contributions, etc.). I.R.C. §§ 161-188. See also Deduct
ible.

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DEDUCTION 
Standard deduction. An option available to all individ
ual taxpayers whereby they can deduct a specified 
amount from adjusted gross income instead of itemizing 
their deductions. This option is generally used by tax
payers who do not have deductions which exceed the 
standard deduction assigned to them. The Tax Reform 
Act of 1986 changed the standard deduction amounts. 
The standard deduction amounts for 1989 and subse
quent years are indexed for inflation. 
Deduction for new. In marine insurance, an allowance 
or drawback credited to the insurers on the cost of 
repairing a vessel for damage arising from the perils of 
the sea insured against. This allowance is usually one
third, and is made on the theory that the parts restored 
with new materials are better in that proportion than 
they were before the damage. 
Deductions in respect of a decedent. Deductions ac
crued to the point of death but not recognizable on the 
final income tax return of a decedent because of the 
method of accounting used. Such items are allowed as 
deductions on the estate tax return and on the income 
tax return of the estate or the heir. An example of a 
deduction in respect of a decedent would be interest 
expense accrued up to the date of death by a cash basis 
debtor. 
Deed. A conveyance of realty; a writing signed by 
grantor, whereby title to realty is transferred from one 
to another. National Fire Ins. Co. v. Patterson, 170 Okl. 
593, 41 P.2d 645, 647. A written instrument, signed, 
and delivered, by which one person conveys land, tene
ments, or hereditaments to another. 
At common law, a sealed instrument, containing a 
contract or covenant, delivered by the party to be bound 
thereby, and accepted by the party to whom the contract 
or covenant runs. 2 Bl.Comm. 295. A writing under 
seal by which lands, tenements, or hereditaments are 
conveyed for an estate not less than freehold. 2 Bl. 
Comm. 294. It is no longer necessary that the instru
ment be sealed. 
See also Ancient deed; Bargain and sale deed; Contract 
for deed; Quitclaim deed; Sheriff's deed; Special warranty 
deed; Tax deed; Trust (Trust deed); Warranty deed. 
Deed absolute. Deed which conveys absolute title as 
contrasted with mortgage deed which is defeasible on 
fulfillment of mortgage conditions. 
Deed for a nominal sum. In effect the same as a deed of 
gift. Bertelsen v. Bertelson, 49 Cal.App.2d 479, 122 P.2d 
130, 133. 
Deed indented, or indenture. In common-law conveyanc
ing, a deed executed or purporting to be executed in 
parts, between two or more parties, and distinguished by 
having the edge of the paper or parchment on which it 
is written indented or cut at the top in a particular 
manner. This was formerly done at the top or side, in a 
line resembling the teeth of a saw; a formality derived 
from the ancient practice of dividing chirographs; but 
the cutting is now made either in a waving line, or more 
414 
commonly by notching or nicking the paper at the edge. 
2 Bl.Comm. 295, 296. 
Deed in fee. A deed conveying the title to land in fee 
simple with the usual covenants. 
Deed of covenant. Covenants are sometimes entered 
into by a separate deed, for title, or for the indemnity of 
a purchaser or mortgagee, or for the production of 
title-deeds. A covenant with a penalty is sometimes 
taken for the payment of a debt, instead of a bond with 
a condition, but the legal remedy is the same in either 
case. 
Deed of distribution. Deed of fiduciary by which real 
estate of decedent is conveyed. 
Deed of gift. A deed executed and delivered without 
consideration. 
Deed of release. One releasing property from the incum
brance of a mortgage or similar pledge upon payment or 
performance of the conditions. More specifically, where 
a deed of trust to one or more trustees has been exe
cuted, pledging real property for the payment of a debt 
or the performance of other conditions, substantially as 
in the case of a mortgage, a deed of release is the 
conveyance executed by the trustees, after payment or 
performance, for the purpose of divesting themselves of 
the legal title and revesting it in the original owner. 
Deed of separation. An instrument by which, through 
the medium of some third person acting as trustee, 
provision is made by a husband for separation from his 
wife and for her separate maintenance. 
Deed of settlement. A deed formerly used in England 
for the formation of joint stock companies constituting 
certain persons trustees of the partnership property and 
containing regulations for the management of its pri
vate affairs. They are now regulated by articles of 
association. 
Deed of trust. An instrument in use in some states, 
taking the place and serving the uses of a mortgage, by 
which the legal title to real property is placed in one or 
more trustees, to secure the repayment of a sum of 
money or the performance of other conditions. Though 
differing in form from mortgage, it is essentially a 
security. In re Title Guaranty Trust Co., Mo.App., 113 
S.W.2d 1053, 1057. See also Mortgage; Potomac mort
gages; Trust (Trust deed). 
Deed poll. A deed which is made by one party only. A 
deed in which only the party making it executes it or 
binds himself by it as a deed. It was originally so called 
because the edge of the paper or parchment was polled 
or cut in a straight line, wherein it was distinguished 
from a deed indented or indenture. As to a special use 
of this term in Pennsylvania in colonial times, see 
Herron v. Dater, 120 U.S. 464, 7 S.Ct. 620, 624, 30 L.Ed. 
748 (citing Evans v. Patterson, 71 U.S. 224, 4 Wall. 224, 
18 L.Ed. 393). 
Deed to lead uses. A common law deed made before a 
fine or common recovery, to show the object thereof.

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415 
Defeasible deed. A deed containing a condition subse
quent the happening of which will cause title to the 
property to revert to the grantor or to go to some third 
party. 
Gratuitous deed. One made without consideration. See 
Deed of gift above. 
Statutory deed. A warranty deed form prescribed by 
state statute. By statute in such states there are cer
tain warranties and covenants that are legally regarded 
as being a part of all statutory deeds, although such are 
not included in the printed form. 
Wild deed. A deed not in the chain of title. An 
instrument which is recorded but, because some previ
ous instrument connecting it to the chain of title has not 
been recorded, will never be discovered in the indexes. 
Deed, estoppel by. "Estoppel by deed" is a bar which 
precludes one party to a deed and his privies from 
asserting as against the other party and his privies any 
right or title in derogation of the deed or from denying 
the truth of any material facts asserted in it. Denny v. 
Wilson County, 198 Tenn. 677, 281 S.W.2d 671, 675. 
Such estoppel precludes a party from denying a certain 
fact recited in deed executed or accepted by him in an 
action brought on the deed by party who would be 
detrimentally affected by such denial. Cleveland Boat 
Service v. City of Cleveland, 102 Ohio App. 255, 130 
N.E.2d 421, 425. 
De ejectione custodire / diy ;}jekshiyowniy k;}stowdiyiy /. 
A writ which lay for a guardian who had been forcibly 
ejected from his wardship. 
De ejectione firmre / diy ;}jekshiyowniy f�rmiy /. A writ 
which lay at the suit of the tenant for years against the 
lessor, reversioner, remainderman, or stranger who had 
himself deprived the tenant of the occupation of the 
land during his term. 3 BI.Comm. 199. By a gradual 
extension of the scope of this form of action its object 
was made to include not only damages for the unlawful 
detainer, but also the possession for the remainder of 
the term, and eventually the possession of land general
ly. And, as it turned on the right of possession, this 
involved a determination of the right of property, or the 
title, and thus arose the modern action of ejectment. 
Deem. To hold; consider; adjudge; believe; condemn; 
determine; treat as if; construe. 
Deemed transferor. The person holding an interest in 
a trust the expiration of which will lead to the imposi
tion of a generation-skipping tax. Assume, for example, 
GF creates a trust, income payable to S (GF's son) for 
life and, upon S's death, remainder to GS (GF's grand
son). Upon S's death, he will be the "deemed transfer
or" and the trust will be included in his gross estate for 
purposes of determining the generation-skipping trans
fer tax. I.R.S. § 2612. See Generation-skipping trust. 
Deep pocket. A person or corporation of substantial 
wealth and resources from which a claim or judgment 
may be made. 
DE EXCOMMUNICATO RECAPIENDO 
Under the Ctdeep pocket" theory in antitrust law, 
parent corporation's substantial assets will have an im
pact on competition in which subsidiary is engaged. 
U.S. v. Connecticut Nat. Bank, D.C.Conn., 362 F.Supp. 
240, 277. 
Deep Rock doctrine. A principle in bankruptcy law by 
which unfair or inequitable claims presented by control
ling shareholders of bankrupt corporations may be sub
ordinated to claims of general or trade creditors. The 
doctrine received its name from the corporate name of 
the subsidiary involved in the leading case articulating 
the doctrine. Taylor et al. v. Standard Gas & Electric 
Co. et aI., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669. 
De escreta /diy ;}schiyt;}/. Writ of escheat. A writ which 
a lord had, where his tenant died without heir, to 
recover the land. 
De escambio monetre / diy ;}skrembiyow m;}niytiy /. A 
writ of exchange of money. An ancient writ to autho
rize a merchant to make a bill of exchange (literas 
cambit orias facere). 
De essendo quietum de tolonio / diy ;}sendow 
kwayiyt;}m diy t;}lowniyow /. A writ which lay for those 
who were by privilege free from the payment of toll, on 
their being molested therein. 
De essonio de malo lecti / diy ;}sowniyow diy mrelow 
lektay /. A writ which issued upon an essoin of malum 
lecti being cast, to examine whether the party was in 
fact sick or not. 
De estoveriis habendis / diy est;}viriy;}s h;}bend;}s/ . 
Writ for having estovers. A writ which lay for a wife 
divorced a mensa et thoro, to recover her alimony or 
estovers. 1 BI.Comm. 441. 
rye estrepamento / diy ;}strep;}mentow /. A writ which 
lay to prevent or stay waste by a tenant, during the 
pendency of a suit against him to recover the lands. 
De eu et trene /d;} yuw ey treyn/. L. Fr. Of water and 
whip of three cords. A term applied to a neife, that is, a 
bond woman or female villein, as employed in servile 
work, and subject to corporal punishment. 
De eve et de treve / d;} ev ey d;} trev /. A law French 
phrase, equivalent to the Latin de avo et de tritavo, 
descriptive of the ancestral rights of lords in their vil
leins. Literally, "from grandfather and from great
grandfather's great-grandfather." It occurs in the Year 
Books. 
De excommunicato capiendo / diy eksk;}myuwn;}keytow 
krepiyendow / . A writ commanding the sheriff to arrest 
one who was excommunicated, and imprison him till he 
should become reconciled to the church. 3 BI.Comm. 
102. 
De excommunicato deliberando / diy eksk;}myuwn;}
keytow d;}lib;}rrendow /. A writ to deliver an excommu
nicated person, who had made satisfaction to the 
church, from prison. 3 Bl.Comm. 102. 
De excommunicato recapiendo / diy eksk;}myuwn;}key
tow r;}krepiyendow /. Writ for retaking an excommuni-

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DE EXCOMMUNICATO RECAPIENDO 
cated person, where he had been liberated from prison 
without making satisfaction to the church, or giving 
security for that purpose. 
De excusationibus I diy �kskyuwzeyshiyown�b�s/. 
"Concerning excuses." This is the title of book 27 of the 
Pandects (in the Corpus Juris Civilis). It treats of the 
circumstances which excuse one from filling the office of 
tutor or curator. The bulk of the extracts are from 
Modestinus. 
De executione facienda in withernamium I diy 
eks�kyuwshiyowiy fces(h)iy€md� in wi3�rneymiy�m/. 
Writ for making execution in withernam. A species of 
capias in withernam. 
De executione judicii I diy eks�kyuwshiyowniy juwdishi
yay I. A writ directed to a sheriff or bailiff, command
ing him to do execution upon a judgment. 
De exemplificatione I diy �gzempl�f�keyshiyowniy I. 
Writ of exemplification. A writ granted for the exem
plification of an original. 
De exoneratione sectce I diy �gzon�reyshiyowniy sektiy I. 
Writ for exoneration of suit. A writ that lay for the 
king's ward to be discharged of all suit to the county 
court, hundred, leet, or court-baron, during the time of 
his wardship. 
De expensis civium et burgensium I diy �kspens�s 
siviy�m �t b�rjensiy�m/. An obsolete writ addressed to 
the sheriff to levy the expenses of every citizen and 
burgess of parliament. 
De expensis militum levandis I diy �kspens�s mil�t�m 
l�vrend�s/. Writ for levying the expenses of knights. A 
writ directed to the sheriff for levying the allowance for 
knights of the shire in parliament. 
Deface. To mar or destroy the face (that is, the physical 
appearance of written or inscribed characters as expres
sive of a definite meaning) of a written instrument, 
signature, inscription, etc., by obliteration, erasure, can
cellation, or superinscription, so as to render it illegible 
or unrecognizable. To mar, injure or spoil. State v. 
Kasnett, 30 Ohio App.2d 77, 283 N.E.2d 636, 638. Also 
used in respect of injury to monument, buildings and 
other structures. See Cancel; Defile; Desecrate; Mar; 
Mutilation; Obliteration. 
De facto Idiy frektow/. In fact, in deed, actually. This 
phrase is used to characterize an officer, a government, 
a past action, or a state of affairs which must be accept
ed for all practical purposes, but is illegal or illegit
imate. Thus, an office, position or status existing under 
a claim or color of right such as a de facto corporation. 
In this sense it is the contrary of de jure, which means 
rightful, legitimate, just, or constitutional. Thus, an 
officer, king, or government de facto is one who is in 
actual possession of the office or supreme power, but by 
usurpation, or without lawful title; while an officer, 
416 
king, or governor de jure is one who has just claim and 
rightful title to the office or power, but has never had 
plenary possession of it, or is not in actual possession. 
MacLeod v. United States, 229 U.S. 416, 33 S.Ct. 955, 57 
L.Ed. 1260. A wife de facto is one whose marriage is 
voidable by decree, as distinguished from a wife de jure, 
or lawful wife. But the term is also frequently used 
independently of any distinction from de jure; thus a 
blockade de facto is a blockade which is actually main
tained, as distinguished from a mere paper blockade. 
Compare De jure. 
"De facto doctrine" will validate, on grounds of public 
policy and prevention of failure of public justice, the acts 
of officials who function under color of law. People v. 
Davis, 86 Mich.App. 514, 272 N.W.2d 707, 710. 
As to de facto Corporation; Court; Domicile; Govern
ment, Merger, and Officer, see those titles. 
In old English law it means respecting or concerning 
the principal act of a murder, which was technically 
denominated factum. 
De facto adoption. An agreement to adopt according to 
statutory procedures in a given state which will ripen 
into de jure adoption when the petition is properly 
presented. In The Matter of The Estate of Schultz, 220 
Or. 350, 348 P.2d 22. An equitable adoption (q.v.). 
De facto contract I diy frektow kontrcekt/. One which 
has purported to pass the property from the owner to 
another but is defective in some element. 
De facto court. See Court. 
De facto government. One that maintains itself by a 
display of force against the will of the rightful legal 
government and is successful, at least temporarily, in 
overturning the institutions of the rightful legal govern
ment by setting up its own in lieu thereof. Wortham v. 
Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145. 
De facto judge. A judge who functions under color of 
authority but whose authority is defective in some pro
cedural form. Riley v. Bradley, 252 Ala. 282, 41 So.2d 
641. 
De facto marriage. A marriage in which the parties 
live together as husband and wife under color of validity 
but which is defective for reasons of form, etc. 
De facto officer. One who, while in actual possession of 
the office, is not holding such in a manner prescribed by 
law. Trost v. Tynatishon, 12 Ill.App.3d 406, 299 N.E.2d 
14. 
De facto segregation. Segregation which is inadvertent 
and without assistance of school authorities and not 
caused by any state action, but rather by social, econom
ic and other determinates. DeFunis v. Odegaard, 82 
Wash.2d 11, 507 P.2d 1169. Compare De jure segrega
tion. 
De facto taking. This type of taking occurs when an 
entity clothed with power of eminent domain substan
tially deprives an owner of the use and enjoyment of his 
property. City of Philadelphia v. Sorrentino, 95 Pa. 
Cmwlth. 236, 505 A.2d 373, 374. Such occurs in extraor-

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417 
dinary circumstances when entity having power of emi
nent domain substantially deprives property owner of 
right to beneficial use and enjoyment of property as 
consequence of nonappropriative rather than appropria
tive act. In re Condemnation By Com., Dept. of Transp., 
96 Pa.Cmwlth. 68, 506 A.2d 990, 993. 
De faire echelle /d� fer eyshel/. In French law, a 
clause commonly inserted in policies of marine insur
ance, equivalent to a license to touch and trade at 
intermediate ports. 
Defalcation / diyfolkeysh�n/. The act of a defaulter; act 
of embezzling; failure to meet an obligation; misappro
priation of trust funds or money held in any fiduciary 
capacity; failure to properly account for such funds. 
Commonly spoken of officers of corporations or public 
officials. 
For purposes of Bankruptcy Code section making non
dischargeable a debt resulting from fraud or defalcation 
by debtor while acting in fiduciary capacity, is failure to 
meet an obligation, misappropriation of trust funds or 
money held in any fiduciary capacity, and failure to 
properly account for such funds. In re Anderson, 
Bkrtcy.N.D.I1l., 64 B.R. 331, 334. 
Also set-off, recoupment or counterclaim. The dimi
nution of a debt or claim by deducting from it a smaller 
claim held by the debtor or payor. See Defalk. 
Defalk. To set off one claim against another; to deduct 
a debt due to one from a debt which one owes. This 
verb corresponds only to the second meaning of "defalca
tion" as given above; i.e. a public officer or trustee who 
misappropriates or embezzles funds in his hands is not 
said to "defalk." 
De falso judicio /diy f61sow juwdishiyow/. Writ of false 
judgment. 
De falso moneta /diy f61sow m�niyt�/. Of false money. 
The title of the English statute 27 Edw. I, ordaining that 
persons importing certain coins, called "pollards," and 
"crokards," should forfeit their lives and goods, and 
everything they could forfeit. 
Defamacast / d�feym�krestl. Defamation by broadcast. 
American Broadcasting-Paramount Theatres, Inc. v. 
Simpson, 106 Ga.App. 230, 126 S.E.2d 873, 879. 
Defamation. An intentional false communication, ei
ther published or publicly spoken, that injures another's 
reputation or good name. Holding up of a person to 
ridicule, scorn or contempt in a respectable and consid
erable part of the community; may be criminal as well 
as civil. Includes both libel and slander. 
Defamation is that which tends to injure reputation; 
to diminish the esteem, respect, goodwill or confidence 
in which the plaintiff is held, or to excite adverse, 
derogatory or unpleasant feelings or opinions against 
him. Statement which exposes person to contempt, 
hatred, ridicule or obloquy. McGowen v. Prentice, La. 
App., 341 So.2d 55, 57. The unprivileged publication of 
false statements which naturally and proximately result 
in injury to another. Wolfson v. Kirk, Fla.App., 273 
So.2d 774, 776. 
Black's Law Dictionary 6th Ed.-10 
DEFAULT.JUDGMENT 
To recover against a public official or public figure, 
plaintiff must prove that the defamatory statement was 
published with malice. Malice as used in this context 
means that it was published either knowing that it was 
false or with a reckless disregard as to whether it was 
true or false. New York Times Co. v. Sullivan, 376 U.S. 
254, 84 S.Ct. 710, 11 L.Ed.2d 686. 
A communication is defamatory if it tends so to harm 
the reputation of another as to lower him in the estima
tion of the community or to deter third persons from 
associating or dealing with him. The meaning of a 
communication is that which the recipient correctly, or 
mistakenly but reasonably, understands that it was in
tended to express. Restatement, Second, Torts §§ 559, 
563. 
See also Actionable per quod; Actionable per se; Jour
nalist's privilege; Libel; Slander. 
Defamatory. Calumnious; containing defamation; inju
rious to reputation; libelous; slanderous. See Def
amation. 
Defamatory libel. Written, permanent form of def
amation as contrasted with slander which is oral def
amation. See Libel. 
Defamatory per quod / d�frem�toriy p�r kw6d/. In re
spect of words, those which require an allegation of 
facts, aside from the words contained in the publication, 
by way of innuendo, to show wherein the words used 
libel the plaintiff. See Actionable per quod. 
Defamatory per se / d�frem�toriy p�r siy /. In respect of 
words, those which by themselves, and as such, without 
reference to extrinsic proof, injure the reputation of the 
person to whom they are applied. Conrad v. Allis-Chal
mers Mfg. Co., 228 Mo.App. 817, 73 S.W.2d 438, 446. 
See Actionable per se. 
Defames / d�feymiyz/. L. Fr. Infamous. 
Default. By its derivation, a failure. An omission of 
that which ought to be done. Town of Milton v. Bruso, 
111 Vt. 82, 10 A.2d 203, 205. Specifically, the omission 
or failure to perform a legal or contractual duty, Easter
wood v. Willingham, Tex.Civ.App., 47 S.W.2d 393, 395; 
to observe a promise or discharge an obligation (e.g. to 
pay interest or principal on a debt when due), Bradbury 
v. Thomas, 135 Cal.App. 435, 27 P.2d 402; or to perform 
an agreement, Eastman v. Morgan, D.C.N.Y., 43 F.Supp. 
637, 641. The term also embraces the idea of dishon
esty, and of wrongful act, Greco v. S. S. Kresge Co., 277 
N.Y. 26, 12 N.E.2d 557, 562; or an act of omission 
discreditable to one's profession, Hilkert v. Canning, 58 
Ariz. 290, 119 P.2d 233, 236. 
Under the U.C.C. "default" is left undefined, §§ 9-
501-507, though it is precisely what the parties agree 
that it is. Borochoff Properties, Inc. v. Howard Lumber 
Co., 115 Ga.App. 691, 155 S.E.2d 651. 
Default-judgment. Judgment entered against a party 
who has failed to defend against a claim that has been 
brought by another party. Under Rules of Civil Proce
dure, when a party against whom a judgment for affirm
ative relief is sought has failed to plead (i.e. answer) or

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DEFAULT-JUDGMENT 
otherwise defend, he is in default and a judgment by 
default may be entered either by the clerk or the court. 
Fed.R. Civil P. 55. See also Judgment. 
Defaulter. One who is in default. One who misappro
priates money held by him in an official or fiduciary 
character, or fails to account for such money. 
Defeasance /d�fiyz:ms/. An instrument which defeats 
the force or operation of some other deed, estate, or will. 
A collateral deed made at the same time with a feoff
ment or other conveyance, containing certain conditions, 
upon the performance of which the estate then created 
may be defeated or totally undone. 2 Bl.Comm. 327. 
An instrument accompanying a bond, recognizance, or 
judgment, containing a condition which, when per
formed, defeats it. See also Defeasance clause; Defea
sible. 
Defeasance clause. That provision in a mortgage which 
assures the revesting of title in the mortgagor when all 
the terms and conditions of the mortgage have been 
met. A clause which permits the mortgagor-borrower to 
defeat the temporary and conditional conveyance by 
discharging the debt and thus causing a release of any 
interests in the real estate. 
Defeasible. Subject to be defeated, annulled, revoked, or 
undone upon the happening of a future event or the 
performance of a condition subsequent, or by a condi
tional limitation. An estate which is not absolute, i.e., 
one which is determinable or subject to an executory 
limitation or condition subsequent. Usually spoken of 
estates and interests in land. For instance, a mortgag
ee's estate is defeasible (liable to be defeated) by the 
mortgagor's equity of redemption. 
Defeasible fee. An estate in fee that is liable to be 
defeated by some future contingency; e.g., a vested re
mainder which might be defeated by the death of the 
remainderman before the time fixed for the taking ef
fect of the devise. Giltner's Trustee v. Talbott, 253 Ky. 
474, 69 S.W.2d 981. 
Defeasible title. One that is liable to be annulled or 
made void, but not one that is already void or an 
absolute nullity. 
Defeasibly vested remainder. Gift over to remainder
man which, though not subject to condition precedent as 
in the case of a contingent remainder, is subject to 
divestment on the happening of a condition subsequent. 
Defeasive. Describes counterclaim which, if it prevails, 
will defeat right of plaintiffs to recover. Hayden v. 
Collins, 90 Utah 238, 63 P.2d 223, 225. 
Defeat. To prevent, frustrate, or circumvent; as in the 
phrase "hinder, delay, or defeat creditors." To over
come or prevail against in any contest; as in speaking of 
the "defeated party" in an action at law, or "defeated 
candidate" in an election. Norcop v. Jordan, 216 Cal. 
764, 17 P.2d 123, 124. 
To annul, undo, or terminate; as, a title or estate. 
See Defeasi ble. 
418 
Defect. The want or absence of some legal requisite; 
deficiency; imperfection; insufficiency. Galloway v. 
City of Winchester, 299 Ky. 87, 184 S.W.2d 890, 892, 893. 
The absence of something necessary for completeness or 
perfection; a deficiency in something essential to the 
proper use for the purpose for which a thing is to be 
used. Some structural weakness in part or component 
which is responsible for damage. Egan v. Washington 
General Ins. Corp., Fla.App., 240 So.2d 875, 877. In a 
strict liability action, may consist of a manufacturing 
flaw, a design defect, or an inadequate warning. Butler 
v. PPG Industries, Inc., 201 N.J. Super. 558, 493 A.2d 
619, 621. See also Apparent defects; Defective; Hidden 
defect; Latent defect. 
Design defect. A "design defect" occurs when product is 
manufactured in conformity with intended design but 
design itself poses unreasonable dangers to consumers. 
Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 
A.2d 843, 846. 
Fatal defect. Of such serious nature as to nullify con
tract. 
Latent defect. One which is not apparent to buyer by 
reasonable observation. 
Patent defect. One which is apparent to buyer on nor
mal observation. 
Defect in highway or street. Ordinarily anything in 
the condition of state of highway or street that renders 
it unreasonably safe for travel. Payne v. State Highway 
Commission, 136 Kan. 561, 16 P.2d 509, 511. 
Defective. Lacking in some particular which is essential 
to the completeness, legal sufficiency, or security of the 
object spoken of; as a "defective" service of process or 
return of service. A product is "defective" if it is not fit 
for the ordinary purposes for which such articles are 
sold and used, Manieri v. Volkswagenwerk, A.G., 151 
N.J.S uper. 422, 376 A.2d 1317, 1322; or if it is danger
ous because it fails to perform in manner to be expected 
in light of its nature and intended function, Knapp v. 
Hertz Corp., 17 Ill.Dec. 65, 59 Ill.App.3d 241, 375 N.E.2d 
1349, 1353. See also Defect; Warranty. 
Defective condition. A product is in a defective condi
tion unreasonably dangerous to the user when it has a 
propensity for causing physical harm beyond that which 
would be contemplated by the ordinary user or consum
er who purchases it, with the ordinary knowledge com
mon to the foreseeable class of users as to its character
istics. A product is not defective or unreasonably dan
gerous merely because it is possible to be injured while 
using it. Moomey v. Massey-Ferguson, Inc., C.A.N.M., 
429 F.2d 1184. See Strict liability. 
Defective execution. Failure to comply with require
ments in executing document with the result that doc
ument is legally inadequate or defective. 
Defective pleadings. Complaint, answer, cross-claim, 
counterclaim, etc. which fail to meet minimum stan
dards of sufficiency or accuracy in form or substance. 
Such defects may usually be cured by amendment. Fed. 
R.Civil P. 15.

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41 9 
Defective product. See Defect; Defective. 
Defective record. May refer to record on appeal which 
does not conform to requisites of appellate rules. May 
also refer to state of title to real estate based on defects 
on the record in registry of deeds. 
Defective title. With respect to negotiable paper within 
U.C.C. Article 3 (§ 3-201) the title of a person who 
obtains instrument or any signature thereto by fraud, 
duress, or force and fear, or other unlawful means, or 
for an illegal consideration, or when he negotiates it in 
breach of faith or under such circumstances as amount 
to fraud. See also Title (Defective title); Un marketable 
title. 
Defective verdict. Verdict lacking legitimacy because 
of some irregularity or inadequacy and hence one on 
which a judgment may not be based. 
Defect of form. An imperfection in the style, manner, 
arrangement, or non-essential parts of a legal instru
ment, plea, indictment, etc., as distinguished from a 
"defect of substance" (q.v.). 
Defect of parties. Insufficiency of the parties before a 
court in any given proceeding to give it jurisdiction and 
authority to decide the controversy, arising from the 
omission or failure to join plaintiffs or defendants who 
should have been brought in. Rules of Civil Procedure 
have relaxed some of the former rigidity in require
ments of joinder, but not all. Fed.R.Civ.P., Rules 19, 20. 
See Joinder. 
Defect of substance. An imperfection in the body or 
substantive part of a legal instrument, plea, indictment, 
etc., consisting in the omission of something which is 
essential to be set forth. Sweeney v. Greenwood Index
Journal Co., D.C.S.C., 37 F.Supp. 484, 487. 
Defectus / d�fekt�s/. Lat. Defect; default; want; im
perfection; disqualification. 
Challenge propter defectum. A challenge to a juror on 
account of some legal disqualification, such as infancy, 
etc. See Challenge. 
Defectus sanguinis. Failure of the blood, i.e., failure or 
want of issue. 
Defend. To prohibit or forbid. To deny. To contest and 
endeavor to defeat a claim or demand made against one 
in a court of justice. To oppose, repel, or resist. To 
protect, to shield, to make a stand for, or uphold by force 
or argument. To vindicate, to maintain or keep secure, 
to guaranty, to agree to indemnify. To represent defen
dant in administrative, civil or criminal proceeding. See 
also Defense. 
Defendant. The person defending or denying; the party 
against whom relief or recovery is sought in an action or 
suit or the accused in a criminal case. See also Joint 
defendants; Nominal defendant. 
Defendare / def�nderiy /. To answer for; to be respon
sible for. 
Defendemus / def�niym�s/. Lat. A word used in grants 
and donations, which binds the donor and his heirs to 
DEFENSE 
defend the donee, if any one go about to lay any incum
brance on the thing given other than what is contained 
in the deed of donation. 
Defender. (Fr.) To deny; to defend; to conduct a suit 
for a defendant; to forbid; to prevent; to protect. See 
Public defender. 
In Scotch and canon law, a defendant. 
Defendere se per corpus suum / d�fend�riy siy p�r 
k6rp�s s(y)uw�m/. To offer duel or combat as a legal 
trial and appeal. Abolished by 59 Geo. III, § 46. See 
Battel. 
Defendere unica manu / d�fend�riy (siy) yuwn�k� 
mren(y)uw/. To wage law; a denial of an accusation 
upon oath. See Wager of law. 
Defender of the faith. A peculiar title belonging to the 
sovereign of England, as that of "Catholic" to the king of 
Spain, and that of "Most Christian" to the king of 
France. These titles were originally given by the popes 
of Rome; and that of Defensor Fidei was first conferred 
by Pope Leo X on King Henry VIII, as a reward for 
writing against Martin Luther; and the bull for it bears 
date quinto Idus Octob., 1521. 
Defendit vim et injuriam / d�fend�t vim et injuriy�m/. 
He defends the force and injury. 
Defendour / deyfondur /. L. Fr. A defender or defen
dant; the party accused in an appeal. 
Defeneration / d�fen�reysh�n/. The act of lending mon
ey on usury. 
Defenestration / diyfen�streysh�n/ . Act of throwing 
something or somebody out of a window. 
Defense. That which is offered and alleged by the party 
proceeded against in an action or suit, as a reason in law 
or fact why the plaintiff should not recover or establish 
what he seeks. That which is put forward to diminish 
plaintiffs cause of action or defeat recovery. Evidence 
offered by accused to defeat criminal charge. 
With respect to defenses to a commercial instrument 
of which a holder in due course takes free, the term 
"defense" means a legally recognized basis for avoiding 
liability either on the instrument itself or on the obli
gation underlying the instrument. 
A response to the claims of the other party, setting 
forth reasons why the claims should not be granted. 
The defense may be as simple as a flat denial of the 
other party's factual allegations or may involve entirely 
new factual allegations. In the latter situation, the 
defense is an affirmative defense. Under Rules of Civil 
Procedure, many defenses may be raised by motion as 
well as by answer (Rule 12(b), while others must be 
pleaded affirmatively (Rules 8(c), 9). See Affirmative de
fense; Answer; Equitable defense; Justification. 
As regards defense to criminal charge, such defenses 
include alibi, consent, "corporate" liability defenses, de 
minimis infraction, duress, entrapment, ignorance or 
mistake, infancy, insanity, intoxication, law enforce
ment authority, necessity, protection of property, public

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DEFENSE 
duty, legal impossibility, self defense and protection of 
others. 
Defense also means the forcible repelling of an attack 
made unlawfully with force and violence, such as the 
defense of one's person or property or nation in time of 
war. See Self-defense. 
Affidavit of defense. See Affidavit. 
Frivolous defense. One which at first glance can be seen 
to be merely pretensive, setting up some ground which 
cannot be sustained by argument. On motion, such 
defense may be ordered stricken from the pleadings. 
Fed.R.Civil P. 12(f). 
Legal defense. A defense which is complete and ade
quate in point of law. A defense which may be set up in 
court of law, as distinguished from an "equitable de
fense", which is cognizable only in a court of equity or 
court possessing equitable powers. This later distinction 
is no longer applicable with the procedural merger of 
law and equity under Rules of Civil Procedure. 
Meritorious defense. One going to the merits, substance, 
or essentials of the case, as distinguished from dilatory 
or technical objections. For purposes of vacating default 
judgment is defense presumptively established when al
legations of defendant's answer, if established on trial, 
would constitute a complete defense to the action, and 
defendant need not establish its defense beyond doubt in 
its pleading. Hritz v. Woma Corp., C.A.Pa., 732 F.2d 
1178, 1181. 
Partial defense. One which goes only to a part of the 
cause of action, or which only tends to mitigate the 
damages to be awarded. 
Peremptory defense. A defense which insists that the 
plaintiff never had the right to institute the suit, or 
that, if he had, the original right is extinguished or 
determined. 
Personal defense. In negotiable instruments law, a de
fense which, though not good as against a holder in due 
course, is good against certain parties, because of their 
participation in or knowledge of certain transactions or 
facts from which such defense arises. Such defenses 
include all defenses that are not real or absolute defens
es. V.C.C. § 3-305. 
Pretermitted defense. One which was available to a 
party and of which he might have had the benefit if he 
had pleaded it in due season, but which cannot after
wards be heard as a basis for affirmative relief. 
Real defense. In negotiable instruments law, a defense 
inherent in the res and therefore good against anyone 
seeking to enforce the instrument, even a holder in due 
course. Real defenses include infancy, and such other 
incapacity, or duress, or illegality of the transaction, as 
renders the obligation of the party a nullity, and fraud 
in the factum. These defenses are good even against a 
holder in due course because, where they exist, no 
contract was formed. V.C.C. § 3-305(2). See also Real 
defenses. 
Self defense. See Self-defense. 
420 
Sham defense. A false or fictitious defense, interposed 
in bad faith, and manifestly untrue, insufficient, or 
irrelevant on its face. 
Defense attorney. Lawyer who files appearance in be
half of defendant and represents such in civil or crimi
nal case. See Public defender. 
Defense au fond en droit / deyfons ow fond on dr(w)6I. 
(Called, also, defense en droit). A demurrer. 
Defense au fond en fait / deyfons ow fond on fey /. The 
general issue. 
Defense bonds. Vnited States Savings Bonds. 
Defense of habitation. In criminal law, right to use 
force to defend one's home; interposed in criminal case 
in defense of crime. See Defense of property. 
Defense of insanity. In criminal cases, an affirmative 
defense interposed to prove that defendant lacked essen
tial mental capacity which is required for criminal re
sponsibility. Model Penal Code, § 4.01. Fed.R.Crim.P. 
12.2 requires the defendant to notify the prosecutor 
prior to trial of intention to assert such defense. See 
Insanity. 
Defense of others. A justification defense available 
when one harms or threatens another in defense of a 
person other than oneself. See e.g., Model Penal Code 
§ 3.05. See also Self-defense. 
Defense of property. Affirmative defense in criminal 
case consisting of justified force in protecting one's prop
erty though such force must be reasonable under all 
circumstances. 
Defense of self. See Self-defense. 
Defensiva /der:msayv�/. In old English law, a lord or 
earl of the marches, who was the warden and defender 
of his country. 
Defensive allegation. In English ecclesiastical law, a 
species of pleading, where the def endant, instead of 
denying the plaintiffs charge upon oath, has any cir
cumstances to offer in his defense. This entitles him, in 
his turn to the plaintiffs answer upon oath, upon which 
he may proceed to proofs as well as his antagonist. 3 
Bl.Comm. 100. 
Defensive collateral estoppel. Doctrine precluding 
plaintiff from relitigating identical issues by merely 
switching adversary; thus, defensive collateral estoppel 
gives plaintiff strong incentive to join all possible defen
dants in first action if possible. Baron v. Bryant, D.C. 
Hawaii, 556 F.Supp. 531, 536. See also Collateral estop
pel. 
Defenso / d�fensow /. In old England, that part of any 
open field or place that was allotted for corn or hay, and 
upon which there was no common or feeding, was an
ciently said to be in defenso; so of any meadow ground 
that was laid in for hay only. The same term was 
applied to a wood where part was inclosed or fenced, to 
secure the growth of the underwood from the injury of 
cattle.

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421 
Canon law. The advocate or patron of a church. An 
officer who had charge of the temporalities of the 
church. 
Civil law. A defender; one who assumed the defense of 
another's case in court. Also an advocate. A tutor or 
curator. 
Old English law. A guardian, defender, or protector. 
The defendant in an action. A person vouched in to 
warranty. 
Defensor civitatis / d;;,fens;;,r siv;;,teyt;;,s/. Defender or 
protector of a city or municipality. An officer under the 
Roman empire, whose duty it was to protect the people 
against the injustice of the magistrates, the insolence of 
the subaltern officers, and the rapacity of the money
lenders. He had the powers of a judge, with jurisdiction 
of pecuniary causes to a limited amount, and the lighter 
species of offenses. He had also the care of the public 
records, and powers similar to those of a notary in 
regard to the execution of wills and conveyances. 
Defensor fidei / d;;,fens;;,r faydiyay /. Defender of the 
faith. See Defender. 
Defensum / d;;,fens;;,m/. A prohibition. An inclosure of 
land; any fenced ground. See Defenso. 
Defer. Delay; put off; remand; postpone to a future 
time. The term does not have, however, the meaning of 
abolish, Moore v. Sampson County, 220 N.C. 232, 17 
S.E.2d 22, 23, or omit, United States v. Murine Co., 
C.C.A.Ill., 90 F.2d 549, 551. 
Deferment. A postponement or extension to a later 
time as in the case of one called to serve in the Armed 
Forces. See 50 U .S.C.A. § 456. 
Deferral. Act of delaying, postponing or putting off. 
Deferral of taxes. Postponement of taxes from one year 
to a later year. For example, individuals can defer 
taxes by contributing money to an individual retirement 
account (where contributions, as well as any earnings on 
the contributions, are taxed only when actually with
drawn from the IRA). 
Deferral state. Within meaning of Age Discrimination 
in Employment Act is state which has its own anti-dis
crimination legislation and enforcement mechanism. 
E.E.O.C. v. Chrysler Corp., D.C.Mich., 546 F.Supp. 54, 64. 
Deferral period. Time span within which payment of 
expense, premium, interest, or the like, is delayed or in 
which income is postponed. See also Grace period. 
Deferred annuity contract. An agreement in which 
the terms require payment to begin after a certain 
period of time has elapsed; e.g., payment will begin 
when the annuitant reaches the age of 60. See Annui ty. 
Deferred charge. Expense not recognized currently on 
the income statement and which is carried on the bal
ance sheet; e.g. discount on bonds. Expenditure not 
recognized as an expense of the period when made but 
carried forward as an asset to be written off in future 
periods, such as for advance rent payments or insurance 
premiums. 
DEFICIENCY 
Deferred claims. Claims which are postponed to a 
future date or to a subsequent accounting period. 
Deferred compensation. Compensation that will be 
taxed when received and not when earned. An example 
is contributions by an employer to a qualified pension or 
profit-sharing plan on behalf of an employee. Such 
contributions will not be taxed to the employee until the 
funds are made available or distributed to the employee 
(e.g., upon retirement). 
Nonqualified deferred compensation plans. Compensa
tion arrangements which are frequently offered to exec
utives. Such plans may include stock options, restricted 
stock, etc. Generally, an executive may defer the recog
nition of taxable income to future periods and the em
ployer does not receive a tax deduction until the employ
ee is required to include the compensation in income. 
Deferred credits. Credits which are required to be 
spread over subsequent accounting periods such as the 
premium on bonds issued. 
Deferred income. Income received but not yet earned, 
i.e., prepaid rent or insurance. Deferred income is re
corded as a liability on the balance sheet until such time 
as the income is earned and recorded as revenue. 
Deferred interest bonds. Bonds which carry a provi
sion that interest payments are postponed for a certain 
period of time. 
Deferred lien. Lien postponed or delayed in its effect 
until a future time as contrasted with a present lien; 
usually possessory in nature. 
Deferred payments. Payments of principal or interest 
postponed to a future time; installment payments. See 
also Deferred income. 
Deferred sentence. A sentence, the pronouncement of 
which has been postponed. It does not operate as a 
suspension of sentence. See Probation. 
Deferred stock. See Stock. 
Defiance / d;;,fay;;,ns/. A contemptuous opposition or dis
regard openly expressed in words or action. State v. 
Mohar, 169 Wash. 368, 13 P.2d 454, 455. A provoking to 
combat, a challenge, a declaration of hostilities. 
Anderson-Berney Bldg. Co. v. Lowry, Tex.Civ.App., 143 
S.W.2d 401, 403. Defiant challenge or opposition to 
authority. 
Deficiency. A lack, shortage, or insufficiency. The 
amount by which the tax properly due exceeds the sum 
of the amount of tax shown on a taxpayer's return plus 
amounts previously assessed or collected as a deficiency, 
less any credits, refunds or other payments due the 
taxpayer; i.e., the amount a taxpayer is deficient in his 
tax payments. See Deficiency assessment; Deficiency 
notice. 
That part of a debt secured by mortgage not realized 
from sale of mortgaged property. A judgment or decree 
for the amount of such deficiency is called a "deficiency 
judgment" or "decree." See Deficiency judgment.

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DEFICIENCY ASSESSMENT 
Deficiency assessment. In taxation, the excess of the 
amount of tax computed by the Internal Revenue Ser
vice over the amount computed by the taxpayer. I.R.C. 
§ 6211 et seq. See also Deficiency; Deficiency notice; 
Jeopardy assessment. 
Deficiency bill. In parliamentary practice, an appropri
ation bill covering items of expense omitted from the 
general appropriation bill or bills, or for which insuffi
cient appropriations were made. If intended to cover a 
variety of such items, it is commonly called a "general 
deficiency bill"; if intended to make provision for ex
penses which must be met immediately, or which cannot 
wait the ordinary course of the general appropriation 
bills, it is called an "urgent deficiency bill." 
Deficiency dividends. See Dividend. 
Deficiency judgment. In mortgage law, imposition of 
personal liability on mortgagor for unpaid balance of 
mortgage debt after foreclosure has failed to yield full 
amount of due debt. In re Pittsburgh-Duquesne Devel
opment Co., C.A.Pa., 482 F.2d 243, 246. If a foreclosure 
sale yields less than the mortgage debt, most states 
permit the mortgagee to obtain a judgment for the 
difference. Such deficiency judgments are subject, how
ever, to a substantial amount of statutory regulation. 
May also apply to debt due after repossession of person
al property subject to security interest. See also Judg
ment. 
Deficiency notice. Notice of tax deficiency (90 day 
letter) which is mailed to taxpayer by I.R.S. and which is 
prerequisite to jurisdiction of Tax Court. I.R.C. § 6212. 
See also Ninety day letter. 
Deficiency suits. In mortgage law, action to recover 
difference between debt and amount realized on fore
closure. See also Deficiency judgment. 
Deficit. An excess of expenditures over revenues. Ex
cess of liabilities and debts over income and assets. A 
negative balance in the earnings and profits account. 
Financial loss in operation of business. Something 
wanting, generally in the accounts of one intrusted with 
money, or in the money received by him. The term is 
broad enough to cover defalcation, misappropriation, 
shrinkage, or costs, and, in its popular meaning, signi
fies deficiency from any cause. 
In accounting, opposite of surplus on the balance 
sheet. May represent accumulated losses. A negative 
balance in the earnings and profits acco�nt. 
Deficit spending. Expenditures in excess of income; 
usually from borrowed funds rather than from actual 
revenues or surplus. 
De fide et officio judicis non recipitur qurestio, sed de 
scientia, sive sit error juris, sive facti I diy faydiy et 
�fishiyow juwd�s�s non r�sip�t�r kwes(h)t(iy)ow, sed diy 
sayensh(iy)�, sayviy sit ehr�r jur�s sayviy frektay/. Con
cerning the fidelity and official conduct of a judge, no 
question is [will be] entertained; but [only] concerning 
his knowledge, whether the error [committed] be of law 
or of fact. The bona fides and honesty of purpose of a 
judge cannot be questioned. but his decision may be 
422 
impugned for error either of law or fact. The law doth 
so much respect the certainty of judgments, and the 
credit and authority of judges, that it will not permit 
any error to be assigned which impeacheth them in 
their trust and office, and in willful abuse of the same; 
but only in ignorance and mistaking either of the law, or 
of the case and matter of fact. Thus, it cannot be 
assigned for error that a judge did that which he ought 
not to do; as that he entered a verdict for the plaintiff, 
where the jury gave it for the defendant. 
De fidei lresione I diy faydiyay liyz(h)iyowniy I. Of 
breach of faith or fidelity. 
Defile. To corrupt purity or perfection of; to debase; to 
make ceremonially unclean; to pollute; to sully; to 
dishonor. State v. Kasnett, 30 Ohio App.2d 77, 283 
N.E.2d 636, 638. To debauch, deflower, or corrupt the 
chastity of a woman. The term does not necessarily 
imply force or ravishment, nor does it connote previous 
immaculateness. See also Desecrate. 
Defilement Id �faylm�nt/. Uncleanness; impurity; cor
ruption of morals or conduct. 
Define. To explain or state the exact meaning of words 
and phrases; to state explicitly; to limit; to determine 
essential qualities of; to determine the precise significa
tion of; to settle; to establish or prescribe authoritative
ly; to make clear. Walling v. Yeakley, C.C.A.Colo., 140 
F.2d 830, 832. To declare that a certain act shall 
constitute an offense is defining that offense. U. S. v. 
Arjona, 120 U.S. 479, 7 S.Ct. 628, 30 L.Ed. 728. See also 
Definition. 
To "define" with respect to space, means to set or 
establish its boundaries authoritatively; to mark the 
limits of; to determine with precision or to exhibit 
clearly the boundaries of; to determine the end or limit; 
to fix or establish the limits. It is the equivalent to 
declare, fix or establish. Seeking out what exists al
ready is not "defining." Redlands Foothill Groves v. 
Jacobs, D.C.Cal., 30 F.Supp. 995, 1004. 
De fine force Idiy fayniy fors/. L. Fr. Of necessity; of 
pure necessity. See Fine-force. 
De ime non capiendo pro pulchre placitando I diy 
fayniy non krepiyendow prow p�lkriy plres�trendow I. A 
writ prohibiting the taking of fines for beau pleader. 
De ime pro redisseisina capiendo I diy fayniy prow 
riyd�siyz�n� krepiyendow I. A writ which lay for the 
release of one imprisoned for a re-disseisin, on payment 
of a reasonable fine. 
De finibus levatis I diy fayn�b�s l�vey bs/. Concerning 
fines levied. The title of the English statute 27 Edw. I, 
requiring fines thereafter to be levied. to be read openly 
and solemnly in court.

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423 
Definite. Fixed, determined, defined, bounded. 
Definite sentence. Sentence calling for imprisonment 
for specified number of years as contrasted with indeter
minate sentence which leaves duration to prison author
ities (e.g. parole boards) and good behavior of prisoner. 
Also called "determinate sentence". 
Definitio / def;mish(iy )ow / . Lat. Definition, or more 
strictly, limiting or bounding; as in the maxim of the 
civil law: Omnis definitio periculosa est, parum est enim 
ut non subverti possit, i.e., the attempt to bring the law 
within the boundaries of precise definitions is hazard
ous, as there are but few cases in which such a limita
tion cannot be subverted. 
Definition. A description of a thing by its properties; 
an explanation of the meaning of a word or term. The 
process of stating the exact meaning of a word by means 
of other words. Such a description of the thing defined, 
including all essential elements and excluding all nones
sential, as to distinguish it from all other things and 
classes. See also Define. 
Definitive. That which finally and completely ends and 
settles a controversy. For example, a definitive sen
tence or judgment as opposed to an interlocutory judg
ment. See Definite sentence. 
Definitive sentence. See Definite sentence. 
Deflation. Decline in price of goods and services. Com
pare Disinflation. 
Deflect. To turn aside, to deviate from a straight or 
horizontal line or from a proper position, to swerve. 
Defloration /diyfl;m�ysh;m/. Seduction or debauching. 
The act by which a woman is deprived of her virginity. 
Deforce. In old English law, to withhold wrongfully; to 
withhold the possession of lands from one who is lawful
ly entitled to them. 3 Bl.Comm. 172. 
Deforcement. Deforcement is where a man wrongfully 
holds lands to which another person is entitled. It 
therefore includes disseisin, abatement, discontinuance, 
and intrusion. But it is applied especially to cases, not 
falling under those heads, where the person entitled to 
the freehold has never had possession. 3 Bl.Comm. 172. 
Also, to detain dower from widow. 
Deforciant / diyf6rsh:mt/. One who wrongfully keeps 
the owner of lands and tenements out of the possession 
of them. 2 Bl.Comm. 350. 
Deforciare / d�fors(h)iyeriy / . L. Lat. To withhold lands 
or tenements from the rightful owner. This is a word of 
art which cannot be supplied by any other word. 
Deforciatio / d�fors(h)iyeysh(iy)ow /. L. Lat. In old Eng
lish law, a distress, distraint, or seizure of goods for 
satisfaction of a lawful debt. 
De forisfactura maritagii / diy for�sfrekchur� mrer�tey
jiyay/. Writ of forfeiture of marriage. 
Deformity. A deformed or misshapen condition; an 
unnatural growth, or a distorted or misshapen part or 
member; disfigurement, as a bodily deformity. 
DE GRATIA 
Defossion / d�f6sh�n/. The punishment of being buried 
alive. 
De frangentibus prisonam / diy frcimjent�b�s priz�n�m/. 
Concerning those that break prison. The title of the 
English statute 1 Edw. II, ordaining that none from 
thenceforth who broke prison should have judgment of 
life or limb for breaking prison only, unless the cause for 
which he was taken and imprisoned required such a 
judgment if he was lawfully convicted thereof. 
Defraud. To make a misrepresentation of an existing 
material fact, knowing it to be false or making it reck
lessly without regard to whether it is true or false, 
intending one to rely and under circumstances in which 
such person does rely to his damage. To practice fraud; 
to cheat or trick. To deprive a person of property or 
any interest, estate, or right by fraud, deceit, or artifice. 
See also Collusion; Deceit; Fraud; Material fact; Misrepre
sentation. 
Intent to defraud means an intention to deceive anoth
er person, and to induce such other person, in reliance 
upon such deception, to assume, create, transfer, alter or 
terminate a right, obligation or power with reference to 
property. 
Defraudation. Privation by fraud. 
Defunct. Having ceased to exist; no longer operative. 
Deceased; a deceased person. A business which has 
ceased to function. 
Defunctus / d�f;}lJ(k)t�s/ . Lat. Dead. "Defunctus sine 
prole," dead without (leaving) issue. 
De furto / diy f;}rtow / . Of theft. One of the kinds of 
criminal appeal formerly in use in England. 
Degaster /deygrestey/. L. Fr. To waste. 
De gestu et fama /diy jestyuw �t feym�/. Of behavior 
and reputation. An old writ which lay in cases where a 
person's conduct and reputation were impeached. 
Degradation. A deprivation of dignity; dismissal from 
rank or office; act or process of degrading. Moral or 
intellectual decadence; degeneration; deterioration. 
An ecclesiastical censure, whereby a clergyman is 
divested of his holy orders. There are two sorts by the 
canon law,-one sum mary, by word only; the other 
solemn, by stripping the party degraded of those orna
ments and rights which are the ensigns of his degree. 
Degradation is otherwise called "deposition," but the 
canonists have distinguished between these two terms, 
deeming the former as the greater punishment of the 
two. There was likewise a degradation of a lord or 
knight at common law, and also by act of parliament. 
Degradations / degr�deysh�nz/. A term for waste in the 
French law. 
Degrade. See Degradation. 
Degrading. Reviling; holding one up to public obloquy; 
lowering a person in the estimation of the public; expos
ing to disgrace, dishonor, or contempt. 
De gratia /diy greysh(iy)�/. Of grace or favor, by favor. 
De speciali gratia, of special grace or favor.

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DEGREE 
Degree. Extent, measure or scope of an action, condition 
or relation. Legal extent of guilt or negligence. Title 
conferred on graduates of school, college, or university. 
The state or civil condition of a person. 
The grade or distance one thing may be removed from 
another; i.e., the distance, or number of removes, which 
separates two persons who are related by consanguinity. 
Thus we speak of a brother as being in the second 
degree of kindred. 
Degree of proof. That measure of cogency required to 
prove a case depending upon the nature of the case. In 
a criminal case such proof must be beyond a reasonable 
doubt, whereas in most civil cases such proof is by a fair 
preponderance of the evidence. See also Burden of proof; 
Proof (Proof beyond a reasonable doubt); Preponderance 
of evidence; Reasonable doubt. 
Degrees of crime. A term used to refer to similar 
conduct that is punished to a greater or a lesser extent 
depending on the existence of one or more factors. A 
division or classification of one specific crime into sever
al grades or stadia of guilt, according to the circum
stances attending its commission. For example, in most 
states there are degrees of murder as "first" and "sec
ond" degree murder. Also, a division of crimes general
ly. Thus, a felony is punishable by imprisonment in 
state prison whereas a misdemeanor carries a maximum 
punishment of a short term sentence to a jail or house of 
correction and/or a fine. In some jurisdictions there are 
also petty misdemeanors. In addition, criminal codes in 
certain states classify felonies and misdemeanors into 
classes (e.g. class A, B, etc.) with corresponding punish
ment or sentencing categories. See also Classification of 
crimes; Crime. 
Degrees of kin. The relationship between a deceased 
and the survivors which govern descent and distribu
tion. See also Descent. 
Degrees of negligence. The different grades of negli
gence which govern the liability of persons; e.g. ordi
nary negligence as contrasted with gross negligence. 
See Negligence. 
De hrerede deliberando illi qui habet custodiam terrre 
I diy h;}riydiy d;}lib;}rrendow Hay kway heyb;}t k;}stow
diy;}m tehriy/. Writ for delivering an heir to him who 
has wardship of the land. A writ directed to the sheriff, 
to require one that had the body of him that was ward 
to another to deliver him to the person whose ward he 
was by reason of his land. 
De hrerede rapto et abducto I diy h�riydiy rreptow et 
�bd�ktow/. Writ concerning an heir ravished and car
ried away. A writ which anciently lay for a lord who, 
having by right the wardship of his tenant under age 
could not obtain his body, the same being carried away 
by another person. 
De hreretico comburendo Idiy h�ret�kow komb(y)�r€m
dow I. (Lat. For burning a heretic.) An ancient writ 
which formerly issued from the secular courts for the 
execution, by burning, of a heretic, who had been con
victed in the ecclesiastical courts of heresy, had abjured, 
424 
and had relapsed into heresy. 4 Bl.Comm. 46. See 
Hreretico comburendo. 
De homagio respectuando I diy h�meyjiyow r�spek
tyuwrendow I. A writ for respiting or postponing hom
age. 
De homine capto in withernam I diy hom�niy kreptow 
�n wid;}rn�m/. (Lat. For taking a man in withernam.) 
A writ to take a man who had carried away a bondman 
or bondwoman into another country beyond the reach of 
a. writ of replevin. 
De homine replegiando I diy hom�niy r�pliyjiyrendow I. 
(Lat. For replevying a man.) A writ which lies to 
replevy a man out of prison, or out of the custody of a 
private person, upon giving security to the sheriff that 
the man shall be forthcoming to answer any charge 
against him. 3 Bl.Comm. 129. This writ has been 
superseded almost wholly, in modern practice, by that of 
habeas corpus; but it is still used, in some of the states, 
in an amended and altered form. 
Dehors Id�hor/ diyhorz/. L. Fr. Out of; without; be
yond; foreign to; unconnected with. Blackford v. 
Anderson, 226 Iowa 1138, 286 N.W. 735, 746. Dehors 
the record; foreign to the record. 3 Bl.Comm. 387. 
De identitate nominis I diy �dent�teytiy nom;}n;}s/. A 
writ which lay for one arrested in a personal action and 
committed to prison under a mistake as to his identity, 
the proper defendant bearing the same name. 
Dei gratia Idiyay greysh(iy);}/. Lat. By the grace of 
God. A phrase used in the formal title of a king or 
queen, importing a claim of sovereignty by the favor or 
commission of God. In ancient times it was incorporat
ed in the titles of inferior officers (especially ecclesiasti
cal), but in later use was reserved as an assertion of "the 
divine right of kings." 
De iis qui ponendi sunt in assisis I diy ay�s kway 
p;}n{mday s;)nt �n ;}sayz�s/. Of those who are to be put 
on assises. The title of a statute passed 21 Edw. I, 
defining the qualifications of jurors. 
Dei judicium Idiyay juwdish(iy)�m/. The judgment of 
God. The old Saxon trial by ordeal, so called because it 
was thought to be an appeal to God for the justice of a 
cause, and it was believed that the decision was accord
ing to the will and pleasure of Divine Providence. 
De incremento I diy il)kr;}mentow I. Of increase; in 
addition. Costs de incremento, or costs of increase, are 
the costs adjudged by the court in civil actions, in 
addition to the damages and nominal costs found by the 
jury. 
De ingressu Idiy �l)gres(y)uw/. A writ of entry. 
De injuria Idiy injuriy�/. Of [his own] wrong. In the 
technical language of common law pleading, a replica
tion de injuria is one that may be made in an action of 
tort where the defendant has admitted the acts com
plained of, but alleges, in his plea, certain new matter 
by way of justification or excuse. By this replication the 
plaintiff avers that the defendant committed the griev
ances in question "of hi,S own wrong, and without any

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425 
such cause," or motive or excuse, as that alleged in the 
plea (de injuria sua propria absque tali causa); or, 
admitting part of the matter pleaded, "without the rest 
of the cause" alleged (absque residuo caused In form it 
is a species of traverse, and it is frequently used when 
the pleading of the defendant, in answer to which it is 
directed, consists merely of matter of excuse of the 
alleged trespass, grievance, breach of contract, or other 
cause of action. Its comprehensive character in putting 
in issue all the material facts of the defendant's plea has 
also obtained for it the title of the general replication. 
Such technical pleading no longer exists under current 
rules practice. 
De inofficioso testamento I diy in�fis(h)iyowsow tes
t�m€mtow I. Concerning an inofficious or undutiful wilL 
A title of the civil law. 
De integro Idiy int�grow/. Anew; a second time. As it 
was before. 
De intrusione I diy �ntruwzhiyowniy I. A writ of intru
sion; where a stranger entered after the death of the 
tenant, to the injury of the reversioner. 
Dejaci6n I deyhasyown/. In Spanish law, surrender; re
lease; abandonment; e.g., the act of an insolvent in 
surrendering his property for the benefit of his creditors, 
of an heir in renouncing the succession, the abandon
ment of insured property to the underwriters. 
De jactura evitanda Idiy jrektyur� ev�trend�/. For 
avoiding a loss. A phrase applied to a defendant, as de 
lucro captando is to a plaintiff. 
Dejeration I diyj�reysh�n/. A taking of a solemn oath. 
De jure I diy juriy I. Descriptive of a condition in which 
there has been total compliance with all requirements of 
law. Of right; legitimate; lawful; by right and just 
title. In this sense it is the contrary of de facto (q.v.). It 
may also be contrasted with de gratia, in which case it 
means "as a matter of right," as de gratia means "by 
grace or favor." Again it may be contrasted with de 
requitate; here meaning "by law," as the latter means 
"by equity." 
De jure corporation. Corporation which has been cre
ated as result of compliance with all of the constitution
al or statutory requirements of state of incorporation. 
Harris v. Stephens Wholesome Bldg. Supply Co. Inc., 54 
Ala.App. 405, 309 So.2d 115. 
De jure decimarum, originem ducens de jure patro
natus, tunc cognitio spectat at legem civilem, i.e., 
communem. With regard to the right of tithes deduc
ing its origin from the right of the patron, then the 
cognizance of them belongs to the civil law; that is, the 
common law. 
De jure government. See Government. 
De jure judices, de facto juratores respondent I diy 
juriy juwd�siyz, diy frektow jur�toriyz r�spond�nt/. The 
judges find the law, the jury the facts. 
De jure segregation. Generally refers to segregation 
directly intended or mandated by law or otherwise issu-
DELECTUS PERSONtE 
ing from an official racial classification or in other 
words to segregation which has or had the sanction of 
law. 
Term comprehends any situation in which the activi
ties of school authorities have had a racially discrimina
tory impact contributing to the establishment or contin
uation of a dual system of schools, while "de facto 
segregation" is limited to that which is inadvertent and 
without the assistance or collusion of school authorities. 
State ex reL Citizens Against Mandatory Bussing v. 
Brooks, 80 Wash.2d 121, 492 P.2d 536, 542. 
Compare De facto segregation. 
De la pluis beale, or belle Id� la pl(y)uw bell. L. Fr. 
Of the most fair. A term applied to a species of dower, 
which was assigned out of the fairest of the husband's 
tenements. 
De latere I diy lret�riy I. From the side; on the side; 
collaterally; of collaterals. 
Delatio Id�leysh(iy)ow/. In the civil law, an accusation 
or information. 
Delator I d�leyd�r I. An accuser; an informer; a syco
phant. 
Delatura Id�l�tyur�/. In old English law, the reward of 
an informer. 
Delay. To retard; obstruct; put off; postpone; defer; 
procrastinate; prolong the time of or before; hinder; 
interpose obstacles; as, when it is said that a convey
ance was made to "hinder and delay creditors." The 
term does not necessarily, though it may, imply dishon
esty or involve moral wrong. 
Delay rental. Rent, usually on oil and gas leases, paid 
for additional time in which to utilize land. Periodic 
payments, usually annual, by oil and gas lessee for 
privilege of deferring exploration during primary term 
of lease. Amber Oil and Gas Co. v. Bratton, Tex.App.
Austin, 711 S.W.2d 741, 743. It does not depend on oil 
or gas produced, does not exhaust substance of land, and 
resembles a bonus payment, which is an advance royal
ty. Commissioner of Internal Revenue v. Wilson, C.C.A. 
Tex., 76 F.2d 766, 769; State v. Magnolia Petroleum Co., 
Tex.Civ.App., 173 S.W.2d 186, 190. 
Del bien estre Idel biyn e(s)tr�/. L. Fr. In old English 
practice, of well being; of form. The same as de bene 
esse. 
Del credere I del kreyd�rey I. An agreement by which a 
factor, when he sells goods on credit, for an additional 
commission (called a "del credere commission"), guaran
ties the solvency of the purchaser and his performance 
of the contract. Such a factor is called a "del credere 
agent." He is a mere surety, liable to his principal only 
in case the purchaser makes default. Agent who is 
obligated to indemnify his principal in event of loss to 
principal as result of credit extended by agent to third 
party. 
Delectus personre I d�lekt�s p�rsowniy I. Lat. Choice of 
the person. By this term is understood the right of a 
partner to exercise his choice and preference as to the

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DELECTUS PERSONJE 
admission of any new members to the firm, and as to the 
persons to be so admitted, if any. The doctrine is 
equally applicable to close and family corporations and 
is exemplified in the use of restrictions for the transfer 
of shares of stock. 
Delegable duty. An obligation which may be performed 
by another. Some duties are not delegable such as those 
which are highly personal, e.g., contract to sing for 
another. Contract rights are delegable in most instanc
es. See U.C.C. § 2- 210(1). 
Delegata potestas non potest delegari / del�geyt� 
p�testres non p6wt�st del�geray / . A delegated power 
cannot be delegated. 
Delegate. A person who is appointed, authorized, del
egated or commissioned to act in the stead of another. 
Landro v. Pacific Atlantic S. S. Co., D.C.Wash., 30 
F.Supp. 538, 539. Transfer of authority from one to 
another. A person to whom affairs are committed by 
another. 
A person elected or appointed to be a member of a 
representative assembly. Usually spoken of one sent to 
a special or occasional assembly or convention. Person 
selected by a constituency and authorized to act for it at 
a party or State political convention. 
As a verb, it means to transfer authority from one 
person to another; to empower one to perform a task in 
behalf of another, e.g., a landlord may delegate his agent 
to collect rents. 
See also Delegable duty; Delegation. 
Delegates, the high court of. In English law, formerly 
the court of appeal from the ecclesiastical and admiralty 
courts. Abolished upon the judicial committee of the 
privy council being constituted the court of appeal in 
such cases. 
Delegation. A sending away; a putting into commis
sion; the assignment of a debt to another; the intrust
ing another with a general power to act for the good of 
those who depute him; a body of delegates. The trans
fer of authority by one person to another. The act of 
making or commissioning a delegate. 
The body of delegates from a State to a national 
nominating convention or from a county to a State or 
other party convention. The whole body of delegates or 
representatives sent to a convention or assembly from 
one district, place, or political unit are collectively. spo
ken of as a "delegation." 
In civil law, a species of novation which consists in the 
change of one debtor for another, when he who is 
indebted substitutes a third person who obligates him
self in his stead to the creditor, or to the person appoint
ed by him so that the first debtor is acquitted and his 
obligation extinguished, and the creditor contents him
self with the obligation of the second debtor. Delegation 
is essentially distinguished from any other species of 
novation, in this: that the former demands the consent 
of all three parties, but the latter that only of the two 
parties to the new debt. Delegation is novation effected 
by the intervention of another person whom the debtor, 
426 
in order to be liberated from his creditor, gives to such 
creditor, or to him whom the creditor appoints; and 
such person so given becomes obliged to the creditor in 
the place of the original debtor. Perfect delegation ex
ists when the debtor who makes the obligation is dis
charged by the creditor. Imperfect delegation exists 
when the creditor retains his rights against the original 
debtor. 
Delegation of powers. Transfer of authority by one 
branch of government in which such authority is vested 
to some other branch or administrative agency. 
U.S. Constitution delegates different powers to the 
executive, legislative and judicial branches of govern
ment. Exercise by the executive branch of the powers 
delegated to the legislative branch offends this separa
tion and delegation of powers and hence is unconstitu
tional. Schechter Poultry Corp. v. U. S., 295 U.S. 495, 
55 S.Ct. 837, 79 L.Ed. 1570. Certain powers may not be 
delegated from one branch of government to another 
such as the judicial powers or such congressional powers 
as power to declare war, impeach, or admit new states. 
For distinction between delegated powers and various 
other types of constitutional powers, see Power (Constitu
tional powers). 
De legatis et fidei commissis / diy l�geyt�s et faydiyay 
k�mis�s/. Of legacies and trusts. The name of a title of 
the Pandects. 
Delegatus non potest delegare / del�geyt�s non p6wd�st 
del�geriy /. A delegate cannot delegate; an agent can
not delegate his functions to a subagent without the 
knowledge or consent of the principal; the person to 
whom an office or duty is delegated cannot lawfully 
devolve the duty on another, unless he be expressly 
authorized so to do. 
Delete / d�liyt/. To erase; to remove; to strike out. 
Deleterious / del�tiriy�s/. Hurtful, morally or physical
ly; injurious, as influence; poisonous; unwholesome. 
De libera falda /diy lib�r� f6Id�/. Writ of free fold. A 
species of quod permittat. 
De libera piscaria /diy lib�r� p�skeriy�/. Writ of free 
fishery. A species of quod permittat. 
Deliberate, v. To weigh, ponder, discuss, regard upon, 
consider. To examine and consult in order to form an 
opinion. To weigh in the mind; to consider the reasons 
for and against; to consider maturely; reflect upon, as 
to deliberate a question; to weigh the arguments for and 
against a proposed course of action. People v. Thomas, 
25 Cal.2d 880, 156 P.2d 7, 17, 18. See also Deliberation. 
Deliberate, adj. Well advised; carefully considered; not 
sudden or rash; circumspect; slow in determining. 
Willful rather than merely intentional. Formed, ar
rived at, or determined upon as a result of careful 
thought and weighing of considerations, as a deliberate 
judgment or plan. Carried on coolly and steadily, espe
cially according to a preconceived design; given to 
weighing facts and arguments with a view to a choice or 
decision; careful in considering the consequences of a

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step; slow in action; unhurried; characterized by reflec
tion; dispassionate; not rash. People v. Thomas, 25 
Ca1.2d 880, 156 P.2d 7, 17, 18. 
By the use of this word, in describing a crime, the idea 
is conveyed that the perpetrator weighs the motives for 
the act and its consequences, the nature of the crime, or 
other things connected with his intentions, with a view 
to a decision thereon; that he carefully considers all 
these, and that the act is not suddenly committed. It 
implies that the perpetrator must be capable of the 
exercise of such mental powers as are called into use by 
deliberation and the consideration and weighing of mo
tives and consequences. See also Deliberation; Premedi
tation. 
Deliberately. Willfully; with premeditation; intention
ally; purposely; in cold blood. Averheart v. State, 158 
Ark. 639, 238 S.W. 620, 621. 
Deliberate speed. Phrase used in mandate to deseg
regate public schools and means such speed as is consist
ent with the welfare of all people of the state, with the 
maintenance of law and order and with the preserva
tion, if possible, of the common school system. Calhoun 
v. Members of Bd. of Ed., City of Atlanta, D.C.Ga., 188 
F.Supp. 401, 404; Brown v. Board of Education, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873. 
Deliberation. The act or process of deliberating. The 
act of weighing and examining the reasons for and 
against a contemplated act or course of conduct or a 
choice of acts or means. 
In the context of jury function means that a properly 
formed jury, comprised of the number of qualified per
sons required by law, are within the secrecy of jury 
room analyzing, discussing and weighing evidence which 
they have heard with a view to reaching a verdict based 
upon law applicable to facts of case as they find them to 
be; such deliberation can only be carried on by a lawful 
number of jurors in the presence of all. Rushing v. 
State, Tenn.Cr.App., 565 S.W.2d 893, 895. 
As used in context of an essential element of first-de
gree murder, is a weighing in the mind of consequences 
of course of conduct, as distinguished from acting upon a 
sudden impulse without exercise of reasoning powers. 
Davis v. State, 251 Ark. 771, 475 S.W.2d 155, 156. 
For purposes of first-degree murder statute, "delibera
tion" means intent to kill carried out by defendant in 
cool state of blood, in furtherance of fixed design for 
revenge or to accomplish unlawful purpose and not 
under influence of violent passion, suddenly aroused by 
lawful or just cause or legal provocation. State v. Ham
let, 312 N.C. 162, 321 S.E.2d 837, 842. 
See also Delib erate; Premeditation. 
De libero passagio I diy Hb;}row p;}seyjiow I. Writ of free 
passage. A species of quod permittat. 
De libertate probanda Idiy Hb;}rreytiy pr;}brend;}/. Writ 
for proving liberty. A writ which lay for such as, being 
demanded for villeins or niefs, offered to prove them
selves free. 
DELIMITATION 
De libertatibus allocandis I diy Hb;}rreyt;}b;}s rebkren
d;}s/. A writ of various forms, to enable a citizen to 
recover the liberties to which he was entitled. 
De licentia transfretandi Idiy l;}sensh(iy);} trrens
fr;}trenday/. Writ of permission to cross the sea. An old 
writ directed to the wardens of the port of Dover, or 
other seaport in England, commanding them to permit 
the persons named in the writ to cross the sea from such 
port, on certain conditions. 
Delict. Criminal offense; tort; a wrong. 
In Roman law this word, taken in its most general 
sense, is wider in both directions than our English term 
"tort." On the one hand, it includes those wrongful acts 
which, while directly affecting some individual or his 
property, yet extend in their injurious consequences to 
the peace or security of the community at large, and 
hence rise to the grade of crimes or misdemeanors. 
These acts were termed in the Roman law "public del
icts;" while those for which the only penalty exacted 
was compensation to the person primarily injured were 
denominated "private delicts." On the other hand, the 
term appears to have included injurious actions which 
transpired without any malicious intention on the part 
of the doer. A quasi delict in Roman law was an act 
whereby a person, without malice, but by fault, negli
gence, or imprudence not legally excusable, caused inju
ry to another. They were four in number, viz.: (1) Qui 
judex litem suam fecit, being the offense of partiality or 
excess in the judex (juryman). (2) Dejectum effusumve 
aliquid, being the tort committed by one's servant in 
emptying or throwing something out of an attic or upper 
story upon a person passing beneath. (3) Damnum 
infectum, being the offense of hanging dangerous arti
cles over the heads of persons passing along the king's 
highway. (4) Torts committed by one's agents in the 
course of their employment. 
Delictual fault Id;}Hktyuw;}1 folt/. An act, productive of 
obligations, which takes place between persons juridical
ly strangers to each other; it supposes the absence of 
obligation and its result is the creation of one. Reserve 
Ins. Co. v. Fabre, 243 La. 982, 149 So.2d 413, 416. 
Delictum Id;}Hkt;}m/. Lat. A delict, tort, wrong, injury, 
or offense. Actions ex delicto are such as are founded 
on a tort, as distinguished from actions on contract. 
Culpability, blameworthiness, or legal delinquency. 
The word occurs in this sense in the maxim, "In pari 
delicto melior est condito defendentis". 
A challenge of a juror propter delictum is for some 
crime or misdemeanor that affects his credit and ren
ders him infamous. 3 Bl.Comm. 363. 
Delimit. To mark or lay out the limits or boundary line 
of a territory or country; to fix or to mark the limits of; 
to demarcate; to limit; bound. Walling v. Yeakley, 
C.C.A.Colo., 140 F.2d 830, 832. 
Delimitation. The act of fixing, marking off, or describ
ing the limits or boundary line of a territory, country, 
authority, right, statutory exception or the like. See 
Delimit.

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DELINQUENCY 
Delinquency. Failure, omISSIOn, violation of law or 
duty. Failure to make payment on debts when due. 
State or condition of one who has failed to perform his 
duty or obligation. 
Delinquency charges. As used in the commercial cred
it field, generally refer to specific pecuniary sums that 
are assessed against the borrower solely because of his 
failure to make his payment in timely manner. John
son v. McCrackin-Sturman Ford, Inc., C.A.Pa., 527 F.2d 
257, 265. 
Delinquent, n. Person who has been guilty of some 
crime, offense, or failure of duty or obligation. 
Delinquent, adj. As applied to a debt or claim, it means 
simply due and unpaid at the time appointed by law or 
fixed by contract; as due and unpaid taxes or mortgage 
payments. 
Delinquent child. An infant of not more than specified 
age who has violated criminal laws or engages in diso
bedient, indecent or immoral conduct, and is in need of 
treatment, rehabilitation, or supervision. In re Garner, 
230 Pa.Super. 426, 326 A.2d 581, 584. Defined by a 
state statute as: A child who (A) violates any federal or 
state law, or municipal or local ordinance; or (B) with
out just cause runs away from his parental home or 
other properly authorized and lawful place of abode; or 
(C) is beyond the control of his parents, parent, guardian 
or other custodian; or (D) has engaged in indecent or 
immoral conduct; or (E) has been habitually truant or, 
while in school, has been continuously and overtly defi
ant of school rules and regulations; or (F) has violated 
any lawful order of court. See 18 V.S.C.A. § 5001 et seq. 
See also Disobedient child. 
With respect to parental liability for acts of delin
quent child, see Parental liability. 
Delinquent taxes. Past due and unpaid taxes. 
Delirium / d�liriy�m /. Disturbed mental state charac
terized by a combination of motor restlessness display
ing excitement, confusion, incoherence, perplexity, and 
disorientation, in combination with a dream-like state 
and some sensory disturbance, such as hallucinations 
and delusions. Sometimes caused by an infection or a 
toxic chemical substance. 
Delirium febrile / d�liriy�m febr�liy /. A form of mental 
aberration incident to fevers, and sometimes to the last 
stages of chronic diseases. 
Delirium tremens / d�liriy�m triym�nz/. A delirium 
due to alcohol (Korsakow's Syndrome) or other drug 
poisoning or withdrawal, or to dietary metabolic depri
vation resulting from sudden abstinence from alcohol. 
Delisting. The process by which the privileges of a 
security listed on an exchange are suspended for failure 
to meet the requirements of listing. Such delisting may 
be permanent or temporary. See also Deregistration. 
Deliverance. The verdict rendered by a jury. 
At common law, a writ allowed a plaintiff in replevin, 
where the defendant has obtained judgment for return 
of the goods, by default or nonsuit, in order to have the 
428 
same distress again delivered to him, on giving the same 
security as before. 3 Bl.Comm. 150. 
Delivery. The act by which the res or substance there
of is placed within the actual or constructive possession 
or control of another. Poor v. American Locomotive Co., 
C.C.A.Ill., 67 F.2d 626, 630. What constitutes delivery 
depends largely on the intent of the parties. It is not 
necessary that delivery should be by manual transfer, 
Jones v. Young, Tex.Civ.App., 539 S.W.2d 901, 904; e.g. 
"deliver" includes mail. Rev. Model Bus. Corp. Act, 
§ 1.40. See also Drop shipment del ivery; Misdeli very. 
Absolute and conditional. An absolute delivery, as dis
tinguished from conditional delivery or delivery in es
crow, is one which is complete upon the actual transfer 
of the instrument from the possession of the grantor. A 
conditional delivery is one which passes the thing sub
ject to delivery from the possession of the grantor, but is 
not to be completed by possession of the grantee, or a 
third person as his agent, until the happening of a 
specified event. One of the exceptions to parol evidence 
rule which permits introduction of evidence to the effect 
that document was delivered on condition that some
thing be done and it is understood that document does 
not become operative until such action be taken. 
Actual and constructive. Actual delivery consists in the 
giving real possession to the vendee or his servants or 
special agents who are identified with him in law and 
represent him. It is a formal immediate transfer of the 
property to the vendee. 
Constructive delivery is a general term, comprehend
ing all those acts which, although not truly conferring a 
real possession of the thing sold on the vendee, have 
been held, by construction of law, equivalent to acts of 
real delivery. A constructive delivery of personalty 
takes place when the goods are set apart and notice 
given to the person to whom they are to be delivered, or 
when, without actual transfer of the goods or their 
symbol, the conduct of the parties is such as to be 
inconsistent with any other supposition than that there 
has been a change in the nature of the holding. "Con
structive delivery" is a term comprehending all those 
acts which, although not truly conferring a real posses
sion of the vendee, have been held by construction of 
law equivalent to acts of real delivery. Lakeview Gar
dens, Inc. v. State ex reI. Schneider, Kan., 557 P.2d 1286, 
1290. See also Symbolical delivery, below. 
Commercial law. Delivery with respect to instruments, 
documents of title, chattel paper or securities means 
voluntary transfer of possession. V.C.C. § 1-201(14). 
The act by which seller parts with possession and 
buyer acquires possession. Delivery occurs whenever 
seller does everything necessary to put goods completely 
and unconditionally at buyer's disposal. Crowder v. 
Aurora Co-op. Elevator Co., 223 Neb. 704, 393 N.W.2d 
250, 256. 
Conditional delivery. Issuance of an instrument with 
the understanding that the instrument is ineffective, 
that is, the maker or drawer is not liable thereon, unless

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429 
and until a specified event, i.e., a condition precedent, 
occurs. 
Deed. The final and absolute transfer of a deed, proper
ly executed, to the grantee, or to some person for his 
use, in such manner that it cannot be recalled by the 
grantor. Controlling factor in determining if there has 
been delivery of a deed is the intention of the grantor; 
to constitute "delivery" the deed must be placed in the 
hands of the grantee or within his control, with the 
intention that it is to become presently operative as a 
conveyance. Jones v. Young, 539 S.W.2d 901, 904. 
Delivery bond. A bond given upon the seizure of goods 
(as under the revenue laws) conditioned for their resto
ration to the defendant, or the payment of their value, if 
so adjudged. 
A guaranteed undertaking by a defendant whose prop
erty has been seized through attachment promising that, 
in exchange for return of the property to him pending 
resolution of the main action, he will surrender the 
property or its value in satisfaction of judgment against 
her. Another name for this bond is "forthcoming bond." 
Delivery in escrow. Transfer physically of something 
such as a deed to escrow agent to be held on some 
condition which is not inconsistent with the primary 
transaction and which is to be released on the occur
rence of some specific event or happening. See Escrow. 
Delivery order. A written order to deliver goods directed 
to a warehouseman, carrier or other person who in the 
ordinary course of business issues warehouse receipts or 
bills of lading. V.C.C. § 7-102(1)(d). The primary func
tion of the delivery order is to aid in the breaking down 
into smaller lots of one large lot of goods (whether 
fungible or otherwise) which is represented by one bill of 
lading. 
Drugs. In the context of illegal transfer of drugs, "deliv
er" means the actual, constructive, or attempted trans
fer from one person to another of a controlled substance. 
State v. Medina, 87 N.M. 394, 534 P.2d 486, 489. 
Gift. "Delivery" for purposes of creating a gift consists 
of irrevocable surrender of dominion and control over 
the subject matter of the gift. Bray v. Illinois Nat. Bank 
of Springfield, 37 Ill.App.3d 286, 345 N.E.2d 503, 505. 
Second delivery. The legal delivery by the depositary of 
a deed placed in escrow. 
Symbolical delivery. The constructive delivery of the 
subject-matter of a sale, where it is cumbersome or 
inaccessible, by the actual delivery of some article which 
is conventionally accepted as the symbol or representa
tive of it, or which renders access to it possible, or which 
is the evidence of the purchaser's title to it; as the key 
of a warehouse, or a bill of lading of goods on shipboard. 
De lunatico inquirendo / diy l(y)uwnret�kow iIJkw�r{m
dow / . The name of a writ directed to the sheriff, 
directing him to inquire by good and lawful men wheth
er the party charged is a lunatic or not. 
Delusion. False, unshakeable belief which is (a) con
trary to fact, (b) inappropriate to the person's education, 
DEMAND 
intelligence or culture, and (c) adhered to in spite of 
tangible evidence that it is false. A reality judgment 
which cannot be accepted by people of the same class, 
education, race and period of life as the person who 
expresses it and which cannot be changed by logical, 
argument or evidence against it. Three common delu
sions are: (1) delusions of persecution; (2) delusions of 
grandeur; and (3) delusions of personal unworthiness. 
The first two are common to schizophrenia. Delusion 
appears to spring from a distorted world view created by 
the subject in order to satisfy his inner needs or to 
reconcile conflicting elements of his personality. See 
Insane delusion. 
Dem. An abbreviation for "demise"; e.g., Doe demo 
Smith, Doe, on the demise of Smith. 
De magna assisa eligenda / diy mregn� �sayz� el�jend�/. 
A writ by which the grand assise was chosen and sum
moned. 
Demain. See Demesne. 
De majori et minori non variant jura / diy m�j6ray at 
m�n6ray non vreriy�nt jur�/. Concerning greater and 
less laws do not vary. 
De malo / diy mrelow / . Of illness. This phrase was 
frequently used to designate several species of essoin 
(q.v.), such as de malo lecti, of illness in bed; de malo 
veniendi, of illness (or misfortune) in coming to the place 
where the court sat; de malo vilire, of illness in the 
town where the court sat. 
Demand, v. To claim as one's due; to require; to ask 
relief. To summon; to call in court. 
Demand, n. The assertion of a legal right; a legal 
obligation asserted in the courts. An imperative request 
preferred by one person to another, under a claim of 
right, requiring the latter to do or yield something or to 
abstain from some act. Request for payment of debt or 
amount due. An asking with authority, claiming or 
challenging as due. Smith v. Municipal Court of Glen
dale Judicial Dist., Los Angeles County, 167 Cal.App.2d 
534, 334 P.2d 93l. 
The seeking after a commodity or service. It is not 
something static, but necessarily contains the idea of 
"competition" and a realization that markets are as 
much limited by sales efforts as by capacity to produce. 
Mendota Coal & Coke Co. v. Eastern Ry. & Lumber Co., 
C.C.A.Wash., 53 F.2d 77, 82. 
See also Call; Liquidated demand; On demand; Payable 
on demand. 
Cross-demand. A demand that is preferred by one party 
to an action in opposition to a demand already preferred 
against him by his adversary. See Counterclaim; Cross
claim. 
Demand clause. Provision in note which allows holder 
to compel full payment if maker fails to meet any 
installment. See Demand note, below. 
Demand deposits. Any bank deposit which the deposi
tor may demand (withdraw) at any time in contrast to 
time deposit which requires depositor to wait the speci-

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DEMAND 
fied time before withdrawing or pay a penalty for early 
withdrawal. Funds accepted by bank subject to immedi
ate withdrawal; such represent largest element in mon
ey supply of the United States. U. S. v. Philadelphia 
Na.t. Bank, D.C.Pa., 201 F.Supp. 348, 360. 
Demand draft. Sight draft; draft payable on demand. 
Demand instrument. An instrument that is payable on 
demand, at sight or on presentation. See U.C.C. 
§ 3-108 (when an instrument is payable on demand). 
See also Demand note, below. 
Demand loan. Loan which may be called by lender at 
any time because there is no fixed maturity date. A 
loan payable upon request by the creditor rather than 
on a specific date. See Demand note, below. 
Demand note. A note with no set maturity date which 
expressly states that it is payable on demand, on presen
tation, or at sight. A note in which no time for payment 
is expressed. Kent v. Lampman, 59 Cal.App.2d 407, 139 
P.2d 57, 59. A note issued, accepted or indorsed when 
overdue, as regards person so issuing, accepting or in
dorsing it. Nees v. Hagan, 22 Tenn.App. 78, 118 S.W.2d 
566, 568. See also Demand instrument , above; and Sight 
draft. 
Legal demand. A demand properly made, as to form, 
time, and place, by a person lawfully authorized. 
Personal demand. A demand for payment of a bill or 
note, made upon the drawer, acceptor or maker, in 
person. 
Demandant I d�mrend;mt/. The plaintiff or party suing 
in a real action. 
Demandress I d�mrendr�s l. A female demandant. 
De manucaptione Idiy mren�krepshiy6wniy/. Writ of 
manucaption, or mainprise. A writ which lay for one 
who, being taken and imprisoned on a charge of felony, 
had offered bail, which had been refused; requiring the 
sheriff to discharge him on his finding sufficient main
pernors or bail. 
De manutenendo Idiy mren�t�nendow/. Writ of main
tenance. A writ which lay against a person for the 
offense of maintenance. 
Demarcation. The marking of a boundary line on the 
ground by physical means or a cartographic representa
tion. State ex reI. Buckson v. Pennsylvania R. Co., Del., 
267 A.2d 455, 459. 
Demeanor I d�miyn�r I. As respects a witness or other 
person, relates to physical appearance; outward bearing 
or behavior. Faircloth v. State, 44 Ala.App. 295, 208 
So.2d 66, 70. It embraces such facts as the tone of voice 
in which a witness' statement is made, the hesitation or 
readiness with which his answers are given, the look of 
the witness, his carriage, his evidences of surprise, his 
gestures, his zeal, his bearing, his expression, his yawns, 
the use of his eyes, his furtive or meaning glances, or his 
shrugs, the pitch of his voice, his self-possession or 
embarrassment, his air of candor or seeming levity. 
Rains v. Rains, 17 N.J.Mi sc. 310, 8 A.2d 715, 717. 
430 
Demeanor evidence. Species of real evidence consisting 
of behavior of witness on the witness stand and which 
may be considered by trier of fact on issue of credibility. 
Demease Id�miy z/. In old English law, death. 
De medietate lingure I diy miydiy�teytiy liIJgwiy I. Of 
the half tongue; half of one tongue and half of another. 
This phrase describes that species of jury which, at 
common law, was allowed in both civil and criminal 
cases where one of the parties was an alien, not speak
ing or understanding English. It was composed of six 
English denizens or natives and six of the alien's own 
countrymen. 
De medio I diy miydiyow I. A writ in the nature of a 
writ of right, which lay where upon a subinfeudation the 
mesne (or middle) lord suffered his under-tenant or ten
ant para vail to be distrained upon by the lord para
mount for the rent due him from the mesne lord. 
De melioribus damnis Idiy miyliy6r�b�s dremn�s/. Of 
or for the better damages. A term used in practice to 
denote the election by a plaintiff against which of sever
al defendants (where the damages have been assessed 
separately) he will take judgment. 
Judgment de melioribus damnis (of, or for, the better 
damages). Where, in an action against several persons 
for a joint tort, the jury by mistake sever the damages 
by giving heavier damages against one defendant than 
against the others the plaintiff may cure the defect by 
taking judgment for the greater damages (de melioribus 
damn is) against that defendant, and entering a nolle 
prosequi (q. v.) against the others. 
Demens Idiymenz/. One whose mental faculties are 
enfeebled; one who has lost his mind; distinguished 
from amens, one totally insane. 
Demented I d�m{mt�d/. Of unsound mind. 
Dementenant en avant I d� me(y)nt�n6nt on �v6n(t)/. 
L. Fr. From this time forward. 
Dementia I d�mensh(iy)� /. Form of mental disorder in 
which cognitive and intellectual functions of the mind 
are prominently affected; impairment of memory is 
early sign; total recovery not possible since organic 
cerebral disease is involved. See also Ins anity. 
Dementia praecox Id�mensh(iy)� priykoks/. A term 
used to include a wide range of mental disorders which 
occur in early life. It is also called adolescent insanity 
and schizophrenia. Dementia praecox includes three 
types, namely, primary dementia, catatonia, and he
bephrenia. See also Ins anity. 
De mercatoribus I diy m�rk�t6r�b�s/. "Concerning mer
chants." The name of an English statute passed in the 
eleventh year of Edw. I (1233), more commonly called 
the "Statute of Acton Burnel," authorizing the recogni
zance by statute merchant. 2 Bl.Comm. 161. 
Demesne I d�miynl d�meyn/. Domain; dominical; held 
in one's own right, and not of a superior; not allotted to 
tenants.

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In the language of pleading, own; proper; original. 
Thus, son assault demesne, his own assault, his assault 
originally or in the first place. 
Ancient demesne. See Ancient. 
Demesne as of fee. A man is said to be seised in his 
demesne as of fee of a corporeal inheritance, because he 
has a property, dominicum or demesne, in the thing 
itself. But when he has no dominion in the thing itself, 
as in the case of an incorporeal hereditament, he is said 
to be seised as of fee, and not in his demesne as of fee. 2 
Bl.Comm. 106. 
Demesne lands. In old English law, those lands of a 
manor not granted out in tenancy, but reserved by the 
lord for his own use and occupation. Lands set apart 
and appropriated by the lord for his own private use, as 
for the supply of his table, and the maintenance of his 
family; the opposite of tenem ental lands. Tenancy and 
demesne, however, were not in every sense the opposites 
of each other; lands held for years or at will being 
included among demesne lands, as well as those in the 
lord's actual possession. 2 Bl.Comm. 90. 
Demesne lands of the crown. That share of lands re
served to the crown at the original distribution of landed 
property, or which came to it afterwards by forfeiture or 
otherwise. 1 Bl.Comm. 286. 
Demesnial. Pertaining to a demesne. 
De minimis non curat lex. The law cares not for small 
things. 
Demi Idemiy-I. Fr. Half; the half. Used chiefly in 
composition. 
As to demi Mark; Of ficial; Vill, see those titles. 
Demidietas I demiyday�tresl . In old records, a half or 
moiety. 
De minimis doctrine. See De minimis non curat lex. 
De minimis non curat lex I diy min�m�s non kyUr�t 
leks I . The law does not care for, or take notice of, very 
small or trifling matters. The law does not concern 
itself about trifles. Provision is made under certain 
criminal statutes for dismissing offenses which are "de 
minimis." See, e.g., Model Penal Code § 2.12. 
De minis Idiy min�s/. Writ of threats. A writ which 
lay where a person was threatened with personal vio
lence, or the destruction of his property, to compel the 
offender to keep the peace. 
Deminutio Idiym� n(y)uwsh(iy)ow/. In the civil law, a 
taking away; loss or deprivation. See Capitis diminutio. 
Demi-sangue, or demy-sangue I demiysreI](k)/. Half
blood. 
Demise, v. To convey or create an estate for years or 
life. To lease; to bequeath or transmit by succession or 
inheritance. 
Demise, n. A conveyance of an estate to another for life, 
for years, or at will (most commonly for years); a lease. 
Originally a posthumous grant. Commonly a lease or 
conveyance for a term of years; sometimes applied to 
DEMISSIO 
any conveyance in fee, for life, or for years. "Demise" is 
synonymous with "lease" or "let". The use of the term 
in a lease imports a covenant for quiet enjoyment, 
Sixty-Third & Halsted Realty Co. v. Chicago City Bank 
& Trust Co., 299 Ill.App. 297, 20 N.E.2d 162, 167; and 
implies a covenant by lessor of good right and title to 
make the lease, Evans v. Williams, 291 Ky. 484, 165 
S.W.2d 52, 55. 
The word is also used as a synonym for "decease" or 
"death". In England it is especially employed to denote 
the death of the sovereign. 
Demise and redemise. In conveyancing, mutual leases 
made from one party to another on each side, of the 
same land, or something out of it; as when A. grants a 
lease to B. at a nominal rent (as of a pepper corn), and 
B. redemises the same property to A. for a shorter time 
at a real, substantial rent. 
Demise charter. Under a demise (or "bareboat") char
ter, there is but a hiring of the vessel, under which no 
title passes to the charterer but merely the right to 
possess and control it for a limited period. McGahern v. 
Koppers Coal Co., C.C.A.Pa., 108 F.2d 652, 653. One 
under which control of vessel is taken from owner and 
vested in the charterer who mans and navigates vessel 
during rental period. F. Jacobus Transp. Co. v. Galla
gher Bros. Sand & Gravel Corp., D.C.N.Y., 161 F.Supp. 
507, 511. There must be relinquishment of all control 
over ship, barge or scow. B. W. King, Inc. v. Consolidat
ed Iron & Metal Co., D.C.N.Y., 310 F.Supp. 471, 474. 
Demise of the crown. The natural dissolution of the 
king is generally so called; an expression which signifies 
merely a transfer of property. By demise of the crown 
we mean only that, in consequence of the disunion of the 
king's natural body from his body politic, the kingdom is 
transferred or demised to his successor, and so the royal 
dignity remains perpetual. 1 Bl.Comm. 249. 
Several demises. In English practice, in the action of 
ejectment, it was formerly customary, in case there were 
any doubt as to the legal estate being in the plaintiff, to 
insert in the declaration several demises from as many 
different persons; but this was rendered unnecessary by 
the provisions of the common-law procedure acts. 
Single demise. A declaration in ejectment might con
tain either one demise or several. When it contained 
only one, it was called a "declaration with a single 
demise." 
Demised premises. That property, or portion of a prop
erty which is leased to a tenant. 
Demisi I d�mayzay I. Lat. I have demised or leased. 
Demisi, concessi, et ad firmam tradid�· have demised, 
granted, and to farm let. The usual operative words in 
ancient leases, as the corresponding English words are 
in the modern forms. 2 Bl.Comm. 317, 31B. 
Demissio Id�mi sh(iy)ow/. L. Lat. A demise or letting. 
Chiefly used in the phrase ex demissione (on the demise), 
which formed part of the title of the cause in the old 
actions of ejectment, where it signified that the nominal

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DEMISSIO 
plaintiff (a fictitious person) held the estate "on the 
demise" of, that is, by a lease from, the real plaintiff. 
De mittendo tenorem recordi / diy m;}tendow t;}nor;}m 
r;}korday /. A writ to send the tenor of a record, or to 
exemplify it under the great seal. 
Demobilization. The dismissal of an army or body of 
troops from active service. 
Democracy. That form of government in which the 
sovereign power resides in and is exercised by the whole 
body of free citizens directly or indirectly through a 
system of representation, as distinguished from a mon
archy, aristocracy, or oligarchy. 
De moderata misericordia capienda / diy mod;}reyt;} 
miz;}r;}kordiy;} krepiyend;}/. Writ for taking a moderate 
amercement. A writ, founded on Magna Charta (c. 14), 
which lay for one who was excessively amerced in a 
court not of record, directed to the lord of the court, or 
his bailiff, commanding him to take a moderate amerce
ment of the party. 
De modo decimandi / diy mowdow des;}mrenday /. Of a 
modus of tithing. A term applied in English ecclesiasti
cal law to a prescription to have a special manner of 
tithing. 2 Bl.Comm. 29. 
De molendino de novo erecto non jacet prohibitio 
/ diy m;}lend;}now diy nowvow ;}rektow non jeys;}t prow
(h);}bish(iy)ow /. A prohibition lies not against a newly
erected mill. 
Demolish. To throw or pull down; to raze; to destroy 
the fabrication of; to pull to pieces; hence to ruin or 
destroy. Star Mfg. Co. v. Quarries, 172 Okl. 550, 46 P.2d 
497, 498. To destroy totally or to commence the work of 
total destruction with the purpose of completing the 
same. 
Demonetization / diymon;}t;}zeysh;}n/. The disuse of a 
particular metal for purposes of coinage. The withdraw
al of the value of a metal as money. For example, in 
the United States gold has been demonetized. 
Demonstrate. To teach by exhibition of samples; to 
derive from admitted premises by steps of reasoning 
which admit of no doubt; to prove indubitably. To show 
or prove value or merits by operation, reasoning, or 
evidence. 
Demonstratio / dem;}nstreysh(iy)ow /. Lat. Description; 
addition; denomination. Occurring often in the phrase, 
'Palsa demonstra tio non nocet" (a false description does 
not harm). 2 Bl.Comm. 382. 
Demonstration. Description; pointing out. That which 
is said or written to designate a thing or person. Show 
or display of attitudes toward a person, cause, or issue. 
See also False demonstration. 
Demonstrative bequest. A testamentary gift which, by 
its terms, must be paid from a specific fund; e.g. bequest 
of one thousand dollars to be paid from testator's shares 
of stock in X Corporation. Hence, it is partly a general 
bequest and partly a specific bequest. See also Legacy. 
432 
Demonstrative evidence. That evidence addressed di
rectly to the senses without intervention of testimony. 
Such evidence is concerned with real objects which 
illustrate some verbal testimony and has no probative 
value in itself. People v. Diaz, 111 Misc.2d 1083, 445 
N.Y.S.2d 888, 889. Real ("thing") evidence such as the 
gun in a trial of homicide or the contract itself in the 
trial of a contract case. Evidence apart from the testi
mony of witnesses concerning the thing. Such evidence 
may include maps, diagrams, photographs, models, 
charts, medical illustrations, X-rays. 
Demonstrative legacy. See Legacy. 
Demonstrator. One who stands, walks or parades in 
public in support of a cause to inform the public of the 
legitimacy of the cause and to enlist support for such 
cause. 
De morte hominis nulla est cunctatio longa / diy mor
tiy hom;}n;}s n:}l;} est k;}IJkteysh(iy)ow IOIJg;}/. Where the 
death of a human being is concerned [in a matter of life 
and death], no delay is [considered] long. 
Demotion. A reduction to lower rank or grade, or to 
lower type of position, or to lower pay scale. See also 
Degradation. 
Demur /d;}m�r/. To present a demurrer; to take an 
exception to the sufficiency in point of law of a pleading 
or state of facts alleged. See Demurrer. 
Demurrable /d;}m�r;}b;}l/. Subject to a demurrer. A 
pleading, petition, or the like, is said to be demurrable 
when it does not state such facts as support the claim, 
prayer, or defense put forward. 
Demurrage /d;}m�r;}j/. In maritime law, the sum which 
is fixed by the contract of carriage, or which is allowed, 
as remuneration to the owner of a ship for the detention 
of his vessel beyond the number of days allowed by the 
charter-party for loading and unloading or for sailing. 
Also the detention of the vessel by the freighter beyond 
such time. With respect to railroads a charge exacted 
by a carrier from a shipper or consignee on account of a 
failure on the latter's part to load or unload cars within 
the specified time prescribed by the applicable tariffs; 
the purpose of the charge is to expedite the loading and 
unloading of cars, thus facilitating the flow of com
merce, which is in the public interest. St. Louis, South
western Ry. Co. v. Mays, D.C.Ark., 177 F.Supp. 182, 183. 
Demurrage is extended freight and is the amount pay
able for delays by receiver in loading or unloading cargo; 
it is stipulated damages for detention. Hellenic Lines, 
Limited v. Director General of India Supply Mission for 
and on Behalf of Union of India, D.C.N.Y., 319 F.Supp. 
821, 83 1. 
Demurrage lien. Carrier's right to possession of goods 
for unpaid demurrage charges. 
Demurrant /d;}m�r;}nt/. One who demurs; the party 
who, in pleading, interposes a demurrer. 
Demurrer. An allegation of a defendant, which, admit
ting the matters of fact alleged by complaint or bill 
(equity action) to be true, shows that as they are therein

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433 
set forth they are insufficient for the plaintiff to proceed 
upon or to oblige the defendant to answer; or that, for 
some reason apparent on the face of the complaint or 
bill, or on account of the omission of some matter which 
ought to be contained therein, or for want of some 
circumstances which ought to be attendant thereon, the 
defendant ought not to be compelled to answer. The 
formal mode of disputing the sufficiency in law of the 
pleading of the other side. In effect it is an allegation 
that, even if the facts as stated in the pleading to which 
objection is taken be true, yet their legal consequences 
are not such as to put the demurring party to the 
necessity of answering them or proceeding further with 
the cause. An assertion that complaint does not set 
forth a cause of action upon which relief can be granted, 
and it admits, for purpose of testing sufficiency of com
plaint, all properly pleaded facts, but not conclusions of 
law. Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85, 
87. A legal objection to the sufficiency of a pleading, 
attacking what appears on the face of the document. 
People v. Hale, 232 Cal.App.2d 11 2, 42 Cal.Rptr. 533, 
538. See Calif. Code of Civil Proc. § 430. 10. See also 
Demurrer to evidence. 
By Federal Rules of Civil Procedure (adopted in whole 
or part in most states) demurrers, pleas and exceptions 
for insufficiency of a pleading are abolished. Rule 7(c). 
Every defense in law shall be made by motion or by 
answer; motions going to jurisdiction, venue, process, or 
failure to state a claim are to be disposed of before trial, 
unless the court orders otherwise. While the Federal 
Rules do not provide for the use of a demurrer, an 
equivalent to a general demurrer is provided in the 
motion to dismiss for failure to state a claim on which 
relief may be granted. Fed.R. Civil P. 12(b). Ob jections 
to the pleadings by means of demurrer still exists how
ever in certain states; see e.g. Calif. Code of Civil Proc. 
§ 430.10 et seq. 
Classification of Demurrers 
General demu rrer. A general demurrer is a demurrer 
framed in general terms, without showing specifically 
the nature of the objection, and which is usually resort
ed to where the objection is to matter of substance. 
Thus, a demurrer on the ground that the complaint sets 
forth no cause of action is a general demurrer (see e.g. 
Calif. Code of Civil Proc. § 430.10(e)), and a motion to 
dismiss a bill on ground that there is no equity apparent 
on the face thereof or that court has no jurisdiction is 
treated as a general demurrer. 
A general demurrer to an indictment challenges only 
matters of form and substance appearing on its face. It 
is one which raises an objection that averments are 
insufficient in law to support the action or defense 
without specifying any particular cause or defect, and is 
sufficient only to reach matters of substance. 
The Federal Rules equivalent to a general demurrer is 
a motion to dismiss for failure to state a claim on which 
relief may be granted. Fed.R. Civil P. 12(b). 
Special demu rrer. A special demurrer goes merely to 
structure or form of pleading which it attacks, and 
DEMURRER TO INTERROGATORIES 
usually only to some portion thereof, and must distinctly 
specify wherein defect lies. Cameron v. Evans Securi
ties Corp., 11 9 Cal.App. 164, 6 P.2d 272, 274. It is one 
which excepts to the sufficiency of the pleadings on the 
opposite side, and shows specifically the nature of the 
objection, and the particular ground of the exception. 
Johanson v. Cudahy Packing Co., 107 Utah 11 4, 152 P.2d 
98, 105. See e.g. Calif. Code of Civil Proc. §§ 430.50, 
430.60. The Federal Rules analogue of the special de
murrer is the motion to make more definite and certain. 
Fed.R. Civil P. 12(e). 
Speaking demur rer. A speaking demurrer is one which, 
in order to sustain itself, requires the aid of a fact not 
appearing on the face of the pleading objected to, or, in 
other words, which alleges or assumes the existence of a 
fact not already pleaded, and which constitutes the 
ground of objection and is condemned both by the com
mon law and the code system of pleading. Preston A. 
Blair Co. v. Rose, 56 Idaho 11 4, 51 P.2d 209, 212. A 
speaking demurrer is one which alleges some new mat
ter, not disclosed by the pleading against which the 
demurrer is aimed and not judicially known or legally 
presumed to be true. 
Parol demu rrer. A parol demurrer (not properly a de
murrer at all) was a staying of the pleadings; a suspen
sion of the proceedings in an action during the nonage of 
an infant, especially in a real action. Now abolished. 3 
Bl.Comm. 300. 
Demurrer book. A record of the issue on a demurrer at 
law, containing a transcript of the pleadings, with prop
er entries; and intended for the use of the court and 
counsel on the argument. 
Demurrer ore tenus. An objection to the introduction 
of any evidence on the ground that the complaint or 
petition fails to state a cause of action. Peerless Fixture 
Co. v. Frick, Mo.App., 133 S.W.2d 1089, 1090. This 
name is sometimes given to a ruling on an objection to 
evidence, but is not properly a demurrer at all. It 
should be considered as a general demurrer only. 
Demurrer to evidence. This proceeding is analogous to 
a demurrer to a pleading. It is an objection or exception 
by one of the parties in an action at law, to the effect 
that the evidence which his adversary produced is insuf
ficient in point of law (whether true or not) to make out 
his case or sustain the issue. The practice has been 
largely superseded by motions for nonsuit and directed 
verdict. Thus, a motion to nonsuit, a motion to dismiss 
at close of plaintiffs evidence for failure to prove essen
tial facts, and a defendant's motion for a directed ver
dict, made at close of the evidence, have been held to be 
equivalent to a "demurrer to the evidence" for insuffi
ciency to sustain a verdict for plaintiff. A motion to 
exclude evidence has the effect of a demurrer to the 
evidence, the chief points of difference being the stage of 
the proceeding at which each is available and the conse
quences resulting from deferring the motion to exclude. 
Thornhill v. Thornhill, 172 Va. 553, 2 S.E.2d 318, 319. 
Demurrer to interrogatories. Where a witness objects 
to a question propounded (particularly on the taking of a

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DEMURRER TO INTERROGATORIES 
deposition) and states his reason for objecting or re
fusing to answer, it is called a "demurrer to the inter
rogatory," though the term cannot here be understood 
as used in its technical sense. 
Demy sanke, or demy sangue I demiy srelJ(k)/. Half
blood. A corruption of demi-sang. 
Den and strond Iden �n(d) strand/. In old English law, 
liberty for ships or vessels to run aground, or come 
ashore (strand themselves). 
Denariate Id�neriy�tI. In old English law, as much 
land as is worth one penny per annum. 
Denarii Id�neriyay/. An ancient general term for any 
sort of pecunia numerata, or ready money. The French 
use the word "denier" in the same sense,- payer de ses 
propres deniers. 
Denarius Dei Id�neriy�s diyay/. (Lat. "God's penny.") 
Earnest money; money given as a token of the comple
tion of a bargain. It differs from arrhre in this: that 
arrhre is a part of the consideration, while the denarius 
Dei is no part of it. The latter was given away in 
charity; whence the name. 
Denationalization. As applied to a person, the act of 
depriving him of national rights or status. As applied to 
an industry or function, the act of returning it to private 
ownership and control after a period of national or 
sovereign ownership and control. 
De nativo habendo I diy neyt�vow h�bendow I. A writ 
which lay for a lord directed to the sheriff, commanding 
him to apprehend a fugitive villein, and restore him, 
with all his chattels, to the lord. 
De natura brevium I diy n�tyur� briyviy�m/. (Lat.) 
Concerning the nature of writs. The title of more than 
one textbook of English Medirevallaw. 
Denial. A traverse in the pleading of one party of an 
allegation of fact asserted by the other; a defense. A 
response by the defendant to matter(s) alleged by the 
plaintiff in the complaint. Under Rules of Civil Proce
dure, denials must be specific and directed at the partic
ular allegations controverted. Denials may be made in 
part (i.e. , specific denial) or in whole (i.e., general deni
al), but in the main should be specific and "fairly meet 
the substance of the averments denied." Fed.R. Civil P. 
8(b). Averments in pleadings to which a responsive 
pleading is required are admitted unless denied. Rule 
8(d). 
General and specific. In code pleading, a general denial 
is one which puts in issue all the material averments of 
the complaint or petition, and permits the defendant to 
prove any and all facts tending to negative those aver
ments or any of them. A specific denial is a separate 
denial applicable to one particular allegation of the 
complaint. An answer by way of a general denial is the 
equivalent of, and substitute for, the general issue under 
the common-law system of pleading. It gives to the 
defendant the same right to require the plaintiff to 
434 
establish by proof all the material facts necessary to 
show his right to a recovery as was given by that plea. 
Denier Id�nay�r/ . L. Fr. In old English law, denial; 
refusal. Denier is when the rent (being demanded upon 
the land) is not paid. 
Denier a Dieu Id�nyey a dyuw/. In French law, earnest 
money; a sum of money given in token of the comple
tion of a bargain. The phrase is a translation of the 
Latin denarius Dei (q. v.). 
Denization I dEm�zeysh�n/. The act of making one a 
denizen; the conferring of the privileges of citizenship 
upon an alien born. See Denizen. 
Denize I d�nayzl. To make a man a denizen or citizen. 
Denizen Iden�z�n/. In English law, a person who, being 
an alien born, has obtained, ex donatione regis, letters 
patent to make him an English subject,-a high and 
incommunicable branch of the royal prerogative. A 
denizen is in a kind of middle state between an alien 
and a natural-born subject, and partakes of the status of 
both of these. The term is used to signify a person who, 
being an alien by birth, has obtained letters patent 
making him an English subject. The king may denize, 
but not naturalize, a man; the latter requiring the 
consent of parliament, as under the naturalization act, 
1870, 33 & 34 Vict., c. 14. A denizen holds a position 
midway between an alien and a natural-born or natural
ized subject, being able to take lands by purchase or 
devise (which an alien could not unti1 1870 do), but not 
able to take lands by descent (which a natural-born or 
naturalized subject may do). The denizen becomes a 
British subject from the date of the letters while a 
naturalized person is placed in a position equivalent to 
that of a natural-born subject. Naturalization of aliens 
is now governed by British Nationality Act. 
In American law, a dweller; a stranger admitted to 
certain rights in a foreign country or as one who lives 
habitually in a country but is not a native born citizen; 
one holding a middle state between an alien and a 
natural born subject. One who has some relation to the 
enemy nation which is not lost by the alien's presence 
within the United States. United States ex reI. D'Esqui
va v. Uhl, C.C.A.N.Y., 137 F.2d 903, 905. Thus, one who 
lived and worked in Austria in 1938 at time Germany 
obtained control of Austrian government, and continued 
to live there until leaving for the United States in 1939, 
at which time he was issued a German passport, was a 
"denizen" of Germany, within Enemy Alien Act. Unit
ed States ex reI. Zdunic v. Uhl, D.C.N.Y., 47 F.Supp. 520. 
A denizen, in the primary, but obsolete, sense of the 
word, is a natural-born subject of a country. 
Denman's (Lord) Act I(lord) denm�nz rekt/. An English 
statute, for the amendment of the law of evidence (6 & 7 
Vict., c. 85), which provides that no person offered as a 
witness shall thereafter be excluded by reason of inca
pacity, from crime or interest, from giving evidence. 
Denman's (Mr.) Act I(mist�r) denm�nz rekt/. An Eng
lish statute, for the amendment of procedure in criminal 
trials (28 & 29 Vict., c. 18), allowing counsel to sum up

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435 
the evidence in criminal as in civil trials, provided the 
prisoner be defended by counsel. 
Denombrement /d;mobr�mon/. In French feudal law, a 
minute or act drawn up, on the creation of a fief, 
containing a description of the fief, and all the rights 
and incidents belonging to it. 
Denominatio fieri debet a dignioribus / d�nom�ney
sh(iy)ow fay�ray deb�t ey digniyor�b�s/. Denomination 
should be made from the more worthy. 
Denomination. The act of naming. A society of indi
viduals known by the same name, usually a religious 
society. 
Denominational, adj. / d�nom�neysh�n�l/. Of, or per
taining to, a denomination; sectarian. 
Denominational institution. Institution controlled or 
operated by a religious sect or organization and hence 
forbidden to receive governmental aid because of consti
tutional separation of church and state. 
De nomine proprio non est curandum cum in sub
stantia non erretur; quia nomina mutabilia sunt, 
res autem immobiles / diy nom�niy prowpriyow non est 
ky�rrend�m k;)m in s�bstrensh(iy)� non �riyt�r, kway� 
nom�n� myuwt�biliy� s;)nt, riyz ot�m imowb�liyz/. As 
to the proper namei it is not to be regarded where it errs 
not in substance, because names are changeable, but 
things immutable. 
De non apparentibus, et non existentibus, eadem est 
ratio / diy non rep�rent�b�s et non egz�stent�b�s iyeyd�m 
est reysh(iy)ow/. As to things not apparent, and those 
not existing, the rule is the same. 
De non decimando / diy non des�mrendow / . Of not 
paying tithes. A term applied in English ecclesiastical 
law to a prescription or claim to be entirely discharged 
of tithes, and to pay no compensation in lieu of them. 2 
Bl.Comm. 31. 
De non procedendo ad assisam / diy non prows�dendow 
red �sayz�m/. A writ forbidding the justices from hold
ing an assise in a particular case. 
De non residentia clerici regis / diy non rez�densh(iy)� 
kler�say riyj�s/. An ancient writ where a parson was 
employed in the royal service, etc., to excuse and dis
charge him of non-residence. 
De non sane memorie / diy non seyniy m�m6-
riyiyl"s reniy mem�riy/. L. Fr. Of unsound memory or 
mind; a phrase synonymous with non compos mentis. 
Denounce. To declare (an act or thing) to be a crime 
and prescribe a punishment for it. To pronounce or 
condemn something as being evil or morally wrong. 
The word is also used (not technically but popularly) as 
the equivalent of "accuse" or "inform against." 
The term is frequently used in regard to treaties, 
indicating the act of one nation in giving notice to 
another nation of its intention to terminate an existing 
treaty between the two nations. The French dimoncer 
means to declare, to lodge an information against. 
DENUNTIATIO 
Denouncement. An application to the authorities for a 
grant of the right to work a mine, either on the ground 
of new discovery, or on the ground of forfeiture of the 
rights of a former owner, through abandonment or con
travention of the mining law. Castillero v. U. S., 67 
U.S. 17, 2 Black 17, 17 L.Ed. 360; Stewart v. King, 85 
Or. 14, 166 P. 55, 56. An application for the acquisition 
of land for mining purposes, under certain rules pre
scribed by Mexican laws. The application is called the 
"denouncement," and, when approved by the Mexican 
government, is called "concession" or "title," sometimes 
"patent." It is then a grant given by the government to 
use the land applied for, for the purpose of mining, and 
is called the "title ." Winningham v. Dyo, Tex.Com. 
App., 48 S.W.2d 600, 603. 
In Spanish and Mexican law, a judicial proceeding for 
the forfeiture of land held by an alien. 
De novi operis nunciatione / diy nowvay owp�r�s 
n�nsiyeyshiyowniy /. In the civil law , a form of interdict 
or injunction which lies in some cases where the defen
dant is about to erect a "new work" (q.v .) in derogation 
or injury of the plaintiffs rights. 
De novo / diy nowvow /. Anew; afresh; a second time. 
A venire de novo is a writ for summoning a jury for the 
second trial of a case which has been sent back from 
above for a new trial. 
De novo hearing. See Hearing de novo. 
De novo trial. Trying a matter anew; the same as if it 
had not been heard before and as if no decision had been 
previously rendered. Farmingdale Supermarket, Inc. v. 
U. S., D.C.N.J., 336 F.Supp. 534, 536. 
Density zoning. See Zoning. 
De nullo, quod est sua natura indivisibile, et divi
sionem non patitur, nullam partem habebit vidua, 
sed satisfaciat ei ad valentiam /diy n�low, kwod est 
s(y)uw� n�t(y)ur� indiv�zib�liy et d�viz(h)iyown�m non 
pret�t�r, n�l�m part�m h�biyb�t vid(y)uw�, sed sret�sfey
shiy�t iyay red v�lenshiy�m/. A widow shall have no 
part of that which in its own nature is indivisible, and is 
not susceptible of division, but let the heir satisfy her 
with an equivalent. 
De nullo tenemento, quod tenetur ad terminum, fit 
homagii, fit tamen inde fidelitatis sacramentum / diy 
n�low ten�mentow, kwod t�niyt�r red t�rm�n�m, fit 
h�meyjiyay, fit trem�n indiy f�diyl�teyt�s srekr�
ment�m/. In no tenement which is held for a term of 
years is there an avail of homage; but there is the oath 
of fealty. 
Denumeration. The act of present payment. 
Denunciation. Act of denouncing. 
In the civil law, the act by which an individual in
forms a public officer, whose duty it is to prosecute 
offenders, that a crime has been committed. 
The giving of an information in the ecclesiastical 
courts by one who was not the accuser. 
Denuntiatio /d�n;)nsiyeysh(iy)ow/. In old English law, a 
public notice or summons.

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DENY 
Deny. To traverse. To give negative answer or reply to. 
To refuse to grant or accept. To refuse to grant a 
petition or protest. Safeway Stores v. Brown, Em.App., 
138 F.2d 278, 280. See Denial. 
Deodand / diy�drend/. (L. Lat. Deo dandum, a thing to 
be given to God.) In English law, any personal chattel 
which was the immediate occasion of the death of any 
reasonable creature, and which was forfeited to the 
crown to be applied to pious uses, and distributed in 
alms by the high almoner. 
De odio et atia /diy 6wdiyow ed eysh(iy)� /. A writ 
anciently called "breve de bono et ma lo," addressed to 
the sheriff to inquire whether a man committed to 
prison upon suspicion of murder were committed on just 
cause of suspicion, or only upon malice and ill will 
(propter odium et atiam ); and, if upon the inquisition, 
due cause of suspicion did not appear, then there issued 
another writ for the sheriff to admit him to bail. 3 
Bl.Comm. 128. 
De onerando pro rata portione / diy own�ramdow prow 
reyt� porshiy6wniy/. Writ for charging according to a 
rateable proportion. A writ which lay for a joint tenant, 
or tenant in common, who was distrained for more rent 
than his proportion of the land came to. 
De pace et legalitate tenenda / diy peysiy et l�grel�tey
tiy t�nend� /. For keeping the peace, and for good 
behavior. 
De pace et plagis / diy peysiy et pleyj�s/. Of peace 
(breach of peace), and wounds. One of the kinds of 
criminal appeal formerly in use in England, and which 
lay in cases of assault, wounding, and breach of the 
peace. 
De pace et roberia /diy peysiy et rob�riy� /. Of peace 
[breach of peace] and robbery. One of the kinds of 
criminal appeal formerly in use in England, and which 
lay in cases of robbery and breach of the peace. 
De parco fracto /diy parkow frrektow/. A writ or action 
for damages caused by a pound-breach (q.v.). It has long 
been obsolete. 3 Bl.Comm. 146. 
Depart. To go away from; leave; die. 
De partitione facienda / diy partishiy6wniy fey
s(h)iyend� /. A writ which lay to make partition of lands 
or tenements held by several as coparceners, tenants in 
common, etc. 
Department. One of the territorial divisions of a coun
try. The term is chiefly used in this sense in France, 
where the division of the country into departments is 
somewhat analogous, both territorially and for govern
mental purposes, to the division of an American state 
into counties. 
One of the major administrative divisions of the exec
utive branch of the government usually headed by an 
officer of cabinet rank; e.g. Department of State. Gen
erally, a branch or division of governmental administra
tion. Also, a division of a business, or of something 
comparable thereto. U. S. v. Elgin, J. & E. Ry. Co., Ill., 
298 U.S. 492, 56 S.Ct. 841, 80 L.Ed. 1300. 
436 
Department of State. See State Department. 
Departure. A deviation or divergence, from a standard 
rule, measurement or course of conduct. 
A variance between pleading and proof. Kintner v. 
U. S., C.C.A.Colo., 71 F.2d 961, 962. In common law 
pleading, the statement of matter in a replication, re
joinder, or subsequent pleading, as a cause of action or 
defense, which is not pursuant to the previous pleading 
of the same party, and which does not support and 
fortify it. Under Rules of Civil Procedure, no provision 
is made for "departure" but there are liberal amend
ment provisions. Fed.R. Civil P. 15. 
See also Variance. 
Departure in despite of court. In old English practice, 
the tenant in a real action, having once appeared, was 
considered as constructively present in court until again 
called upon. Hence if, upon being demanded, he failed 
to appear, he was said to have "departed in despite [i.e., 
contempt] of the court." 
Depecage. The process whereby different issues in a 
single case arising out of a single set of facts are decided 
according to the laws of different states. Broome v. 
Antlers' Hunting Club, 595 F.2d 921, 923 n. 5 (3rd Cir., 
1979). Under "depecage" choice of law theory, court 
considers issues on which there is disagreement among 
the contact states over which rule of law is applicable to 
each issue. Lazzara v. Howard A. Esser, Inc., D.C.Ill., 
622 F.Supp. 382, 384. 
Depeculation. In English law, a robbing of the prince 
or commonwealth; an embezzling of the public treasure. 
Dependable, adj. Trustworthy or reliable; evidence. 
Dependence. A state of looking to another for support, 
maintenance, food, clothing, comfort and protection of a 
home and care. Soderstrom v. Missouri Pac. R. Co., 
Mo.App., 141 S.W.2d 73, 79. See Dependent. 
Dependency. A territory distinct from the country in 
which the supreme sovereign power resides, but belong
ing rightfully to it, and subject to the laws and regula
tions which the sovereign may think proper to prescribe. 
Posadas v. National City Bank of N. Y., Phil. Islands, 
296 U.S. 497, 56 S.Ct. 349, 350, 80 L.Ed. 351. It differs 
from a colony, because it is not settled by the citizens of 
the sovereign or mother state; and from possession, 
because it is held by other title than that of mere 
conquest. Dependencies of the United States include 
Puerto Rico, Virgin Islands, Guam and other Pacific 
islands. See 48 U.S.C.A. § 731 et seq. 
A relation between two persons, where one is sus
tained by another or looks to or relies on aid of another 
for support or for reasonable necessaries consistent with 
dependent's position in life. See Dependent; Partial de
pendency. 
Dependency exemption. An amount which may be 
subtracted in computing taxable income for each person 
who qualifies as a dependent of the taxpayer and whose 
gross income is less than the exemption amount or who 
is a child of the taxpayer and who has either not

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437 
attained the age of 19 or who is a full time student. 
I.R.C. § 151(e). 
Dependent, n. One who derives his or her main support 
from another. Means relying on, or subject to, someone 
else for support; not able to exist or sustain oneself, or 
to perform anything without the will, power, or aid of 
someone else. Fox-Vliet Wholesale Drug Co. v. Chase, 
Okl., 288 P.2d 391, 393. Generally, for workers' com
pensation purposes, "dependent" is one who relies on 
another for support or favor and one who is sustained by 
another. Industrial Indem. Co. v. Industrial Acc. Com
mission, 243 Cal.App.2d 700, 52 Cal.Rptr. 647, 651, 653. 
One who has relied upon decedent for support and who 
has reasonable expectation that such support will con
tinue. Wheat v. Red Star Exp. Lines, 156 Conn. 245, 
240 A.2d 859, 862, 863. See also Lawful dependents. 
In taxation, a person who receives more than half of 
his or her support from the taxpayer during the calen
dar year; is a relative of the taxpayer, i.e., brother, 
child, parent, aunt, etc.; and is a citizen or resident of 
the U.S. See Dependency exemption. 
Dependent, adj. Deriving existence, support, or di
rection from another; conditioned, in respect to force or 
obligation, upon an extraneous act or fact. 
Dependent conditions. Mutual covenants which go to 
the whole consideration on both sides. 
Dependent contract. One which depends or is condition
al upon another. One which it is not the duty of the 
contractor to perform until some obligation contained in 
the same agreement has been performed by the other 
party. 
Dependent covenant. See Covenant. 
Dependent coverage. Provision in life and health insur
ance for protection of dependents of named insured. 
Dependent promise. One which it is not the duty of the 
promisor to perform until some obligation contained in 
the same agreement has been performed by the other 
party. 
Dependent intervening cause. A conclusory label used 
by the common law to refer to a cause that intervenes 
between the defendant's behavior and a given result 
such that it is still fair to hold the defendant responsible 
for the result. See also Cause. 
Dependent relative revocation. The doctrine which 
regards as mutually dependent the acts of one destroy
ing a will and thereupon substituting another instru
ment for distribution of estate, when both acts are result 
of one plan, so that, if second act, through incomplete
ness or other defect, fails to accomplish its intended 
purpose, and it thereby becomes evident that testator 
was misled when he destroyed his will, act of destruction 
is regarded as bereft of intent of revocation and way for 
probate of destroyed will is opened. In re Cuneo's 
Estate, 60 Cal.2d 196, 32 Cal.Rptr. 409, 412, 384 P.2d l. 
Depending. Pending or undetermined; in progress. 
In patent law, a convenient means of saying that the 
parts of a device were so attached as to have a right-an-
DEPLETION 
gle relationship to each other, not a gravitational hang
ing of one part upon another. Alemite Mfg. Corporation 
v. Rogers Products Co., C.C.A.N.J., 42 F.2d 648, 651. 
De perambulatione facienda / diy p�rremby�leyshiyow
niy fres(h)iy{md�/. A writ which lay where there was a 
dispute as to the boundaries of two adjacent lordships or 
towns, directed to the sheriff, commanding him to take 
with him twelve discreet and lawful knights of his 
county and make the perambulation and set the bounds 
and limits in certainty. 
Depesas /d�peys�s r-z/. In Spanish-American law, 
spaces of ground in towns reserved for commons or 
public pasturage. 
De pignore surrepto furti, actio heksh(iy)ow diy 
pignoriy s�reptow f;}rtay/. In the civil law, an action to 
recover a pledge stolen. 
De placito / diy plres�tow / . Of a plea; of or in an action. 
Formal words used in declarations and other proceed
ings, as descriptive of the particular action brought. 
De plagis et mahemio / diy pleyj�s et m�hiymiyow /. Of 
wounds and mayhem. The name of a criminal appeal 
formerly in use in England, in cases of wounding and 
maiming. See Appeal. 
De plano / diy pleynow /. Lat. On the ground; on a 
level. A term of the Roman law descriptive of the 
method of hearing causes, when the prretor stood on the 
ground with the suitors, instead of the more formal 
method when he occupied a bench or tribunal; hence 
informal, or summary. 
De plegiis acquietandis / diy pliyjiy�s �kway�t rend�s/. 
Writ for acquitting or releasing pledges. A writ that lay 
for a surety, against him for whom he had become 
surety for the payment of a certain sum of money at a 
certain day, where the latter had not paid the money at 
the appointed day, and the surety was compelled to pay 
it. 
Depletable economic interest. The interest in mineral 
land which is subject to depletion by the removal of the 
minerals by operation of an oil well, mine, or the like. 
Spalding v. U. S., C.C.A. Cal. , 97 F.2d 697, 700; U. S. v. 
Spalding, C.C.A.Cal., 97 F.2d 701 , 704. See Depletion. 
Deplete. To reduce or lessen, as by use, exhaustion, or 
waste. McKnight v. U. S., C.C.A.Cal., 78 F.2d 931, 933. 
Depletion. An emptying, exhausting or wasting of as
sets. A reduction during taxable year of oil, gas or 
other mineral deposits or reserves (i.e., wasting assets) 
as a result of production. The process by which the cost 
or other basis of a natural resource (e.g., an oil and gas 
interest) is recovered upon extraction and sale of the 
resource. 
Depletion allowance. The tax laws allow a depletion 
allowance (deduction) to owners of oil, gas, mineral, and 
timber resources as such are exhausted. The two ways 
to determine the depletion allowance are the cost and 
percentage (or statutory) methods. Under the cost meth
od, each unit of production sold is assigned a portion of 
the cost or other basis of the interest. This is deter-

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DEPLETION 
mined by dividing the cost or other basis by the total 
units expected to be recovered. I.R.C. § 611. Under the 
percentage (or statutory) method the tax law provides a 
special percentage factor for different types of minerals 
and other natural resources. Such depletion is based on 
a percentage of the estimated gross income to be earned 
during the period from a natural resource, without 
reference to the cost of the resource. This percentage is 
multiplied by the gross income from the interest to 
arrive at the depletion allowance. I.R.C. §§ 613 and 
613A. See also Amortization. 
Depletion allowance. See Depletion. 
Depletion deduction. See Depletion. 
Depletion reserve. In accounting, a charge to income to 
reflect the decrease in value of a wasting asset such as 
an oil well. 
De ponendo sigillum ad exceptionem I diy p:mendow 
s�jibm red �ksepshiy6wn�m/. Writ for putting a seal to 
an exception. A writ by which justices were formerly 
commanded to put their seals to exceptions taken by a 
party in a suit. 
Deponent I d�p6wn�nt/. One who deposes (that is, testi
fies) to the truth of certain facts; one who gives under 
oath testimony which is reduced to writing; one who 
makes oath to a written statement. One whose deposi
tion is given. A witness; an affiant. See Depose; Dep
osition. 
• Depopulatio agrorum Idiypopy�leysh(iy)ow �gr6r�m /. 
In old English law, the crime of destroying, ravaging, or 
laying waste a country. 4 BI.Comm. 373. 
Depopulation. In old English law, a species of waste by 
which the population of the kingdom was diminished. 
DepopUlation of houses was a public offense. 
Deportatio Idiyporteysh(iy)ow/. Lat. In the civil law, a 
kind of banishment, where a condemned person was 
sent or carried away to some foreign country, usually to 
an island (in insulam deportatur), and thus taken out of 
the number of Roman citizens. 
Deportation. Banishment to a foreign country, attend
ed with confiscation of property and deprivation of civil 
rights. A punishment derived from the deportatio (q. v.) 
of the Roman law. 
The transfer of an alien, excluded or expelled, from 
the United States to a foreign country. Petition for 
Milanovic, D.C.N.Y., 162 F.Supp. 890, 892. The removal 
or sending back of an alien to the country from which he 
came because his presence is deemed inconsistent with 
the public welfare, and without any punishment being 
imposed or contemplated. The list of grounds for depor
tation are set forth at 8 U.S.C.A. § 1251, and the 
procedures are provided for in §§ 1252-1254. See also 
Banishment. Compare Extradition. 
Depose. To make a deposition; to give evidence in the 
shape of a deposition; to make statements which are 
written down and sworn to; to give testimony which is 
reduced to writing by a duly-qualified officer and sworn 
to by the deponent. See Deponent; Deposition. 
438 
To deprive an individual of a public employment or 
office against his will. The term is usually applied to 
the deprivation of all authority of a sovereign. 
In ancient usage, to testify as a witness; to give 
evidence under oath. 
Deposit, v. To commit to custody, or to lay down; to 
place; to put; to let fall (as sediment). Jefferson County 
ex reI. Grauman v. Jefferson County Fiscal Court, 273 
Ky. 674, 11 7 S.W.2d 918, 924. To lodge for safe-keeping 
or as a pledge to intrust to the care of another. White v. 
Greenlee, 330 Mo. 135, 49 S.W.2d 132, 134. 
Deposit, n. A bailment of goods to be kept by the bailee 
without reward, and delivered according to the object or 
purpose of the original trust. In general, an act by 
which a person receives the property of another, binding 
himself to preserve it and return it in kind. The deliv
ery of chattels by one person to another to keep for the 
use of the bailor. The giving of the possession of person
al property by one person to another, with his consent, 
to keep for the use, benefit, and safekeeping of the first 
or of a third person. Something intrusted to the care of 
another, either for a permanent or a temporary disposi
tion. 
Money placed with a person as an earnest or security 
for the performance of some contract, to be forfeited if 
the depositor fails in his undertaking. It may be 
deemed to be part payment, and to that extent may 
constitute the purchaser the actual owner of the estate. 
The act of placing money in the custody of a bank or 
banker, for safety or convenience, to be withdrawn at 
the will of the depositor or under rules and regulations 
agreed on. Also, the money so deposited, or the credit 
which the depositor receives for it. Deposit, according 
to its commonly accepted and generally understood 
meaning among bankers and by the public, includes not 
only deposits payable on demand and subject to check, 
but deposits not subject to check, for which certificates, 
whether interest-bearing or not, may be issued, payable 
on demand, or on certain notice, or at a fixed future 
time. 
A quantity of ore or other mineral substances occur
ring naturally in the earth; as, a deposit of gold, oil, etc. 
See Bailment; Earnest money; Escrow. 
General Classification 
According to the classification of the civil law, depos
its are of the following several sorts: (1) Necessary, made 
upon some sudden emergency, and from some pressing 
necessity; as, for instance, in case of a fire, a shipwreck, 
or other overwhelming calamity, when property is con
fided to any person whom the depositor may meet with
out proper opportunity for reflection or choice, and 
thence it is called "m iserabile depositum. " (2) Volun
tary, which arises from the mere consent and agreement 
of the parties. The common law has made no such 
division. The civilians again divide deposits into "sim
ple deposits," made by one or more persons having a 
common interest, and "sequestrations," made by one or 
more persons, each of whom has a different and adverse

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439 
interest in controversy touching it; and these last are of 
two sorts,-"convention al," or such as are made by the 
mere agreement of the parties without any judicial act; 
and "judici al," or such as are made by order of a court 
in the course of some proceeding. Thus, under Louisi
ana statutes, it is said that the difference between 
"sequestration" and "deposit" is that the former may 
have for its object both movable and immovable proper
ty, while the latter is confined to movables. 
There is another class of deposits called "involun
tary," which may be without the assent or even knowl
edge of the depositor; as lumber, etc., left upon anoth
er's land by the subsidence of a flood. An "involuntary" 
deposit is one made by the accidental leaving or placing 
of personal property in the possession of any person 
without negligence on the part of the owner. Another 
class of deposits is called "irregular," as when a person, 
having a sum of money which he does not think safe in 
his own hands, confides it to another, who is to return to 
him, not the same money, but a like sum when he shall 
demand it. A regular deposit is a strict or special 
deposit; a deposit which must be returned in specie; i.e., 
the thing deposited must be returned. A quasi deposit 
is a kind of implied or involuntary deposit, which takes 
place where a party comes lawfully to the possession of 
another person's property, by finding it. Particularly 
with reference to money, deposits are also classed as 
general or special. A general deposit is where the mon
ey deposited is not itself to be returned, but an equiva
lent in money (that is, a like sum) is to be returned. It 
is equivalent to a loan, and the money deposited be
comes the property of the depositary. A special deposit 
is a deposit in which the identical thing deposited is to 
be returned to the depositor. The particular object of 
this kind of deposit is safekeeping. In banking law, this 
kind of deposit is contrasted with a "general" deposit, as 
above; but in the civil law it is the antithesis of an 
"irregular" deposit. A gratuitous or naked deposit is a 
bailment of goods to be kept for the depositor without 
hire or reward on either side, or one for which the 
depositary receives no consideration beyond the mere 
possession of the thing deposited. Properly and origi
nally, all deposits are of this description; for according 
to the Roman law, a bailment of goods for which hire or 
a price is to be paid, is not called "depositum" but 
"locatio." If the owner of the property pays for its 
custody or care, it is a "locatio custodire;" if, on the 
other hand, the bailee pays for the use of it, it is "locatio 
rei." (See Locatio.) But in the modern law, a gratuitous 
or naked deposit is distinguished from a "deposit for 
hire," in which the bailee is to be paid for his services in 
keeping the article. There is also a specific deposit, 
which exists where money or property is given to a bank 
for some specific and particular purpose, as a note for 
collection, money to pay a particular note, or property 
for some other specific purpose. 
See also Certificate of deposit; Involu ntary deposit; Se
curity deposit. For bank deposit, see Bank. 
DEPOSITARY 
Demand deposit. Bank deposit which may be with
drawn at any time by the depositor, without prior notice 
to bank. Compare Time deposit, below. 
Deposit box. Commonly referred to as safe deposit box 
in which a person may keep valuables. See Safe deposit 
box. 
Deposit company. A company whose business is the 
safe-keeping of securities or other valuables deposited in 
boxes or safes in its building which are leased to the 
depositors. See Depositary; Depository. 
Deposit contract. Agreement between a payor bank and 
a customer that governs the rights and duties of the 
parties with respect to funds deposited by the customer 
in a demand or other account maintained at the bank, 
and that specifies, among other things, the circumstanc
es under which items drawn against the account are 
properly payable and properly charged against the ac
count. 
Deposit in court. Person who acknowledges liability but 
is in doubt as to whom the liability runs may pay into 
court the sum of money representing his liability and be 
bound by the court's determination of who is entitled to 
it. See e.g. Fed.R. Civil P. 67. May also embrace 
payment into court pursuant to court order as in the 
case of rent pending outcome of eviction case. 
Deposit insurance. Insurance coverage (e.g. Federal De
posit Insurance Corporation) for bank depositors protect
ing them from loss resulting from bank failure. See' 
Deposit Insurance Corporation. 
Deposit of title-deeds. A method of pledging real proper
ty as security for a loan, by placing the title-deeds of the 
land in the keeping of the lender as pledgee. 
Deposit premium. The initial premium paid by the 
insured on a provisional basis pending a premium ad
justment in the case of policies subject to adjustment. 
Deposit ratio. Ratio of total deposits to total capital. 
Deposit slip. An acknowledgment that the amount 
named therein has been received by the bank. It is a 
receipt intended to furnish evidence as between the 
depositor and depositary that on a given date there was 
deposited the sum named therein, the time of deposit, 
and amount deposited, being also shown. 
Time deposit. Bank deposit which is to remain for 
specified period of time, or on which notice must be 
given to bank before withdrawal. 
Depositary. The party or institution (e.g. bank or trust 
company) receiving a deposit. One with whom anything 
is lodged in trust, as "depository" is the place where it is 
put. A trustee; fiduciary; one to whom goods are bailed 
to be held without recompense. The obligation on the 
part of the depositary is that he keep the thing with 
reasonable care, and, upon request, restore it to the 
depositor, or otherwise deliver it, according to the origi
nal trust. This term should not be confused with "de
pository" which is the physical place of deposit.

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DEPOSIT INSURANCE ACT 
Deposit Insurance Act. Federal act creating Federal 
Deposit Insurance Corporation (F.D.I.C.) to insure depos
its of qualifying banks. 12 U.S.C.A. § 181 1 et seq. See 
Deposit Ins urance Corporation. 
Deposit Insurance Corporation. Independent federal 
agency (Federal Deposit Insurance Corporation) created 
to insure bank deposits up to a specified amount in 
national and most state banks, including commercial 
and savings and loan banks, and to protect depositors 
from hazards of bank closings. See Federal Deposit 
In surance Corporation. 
Deposition. The testimony of a witness taken upon oral 
question or written interrogatories, not in open court, 
but in pursuance of a commission to take testimony 
issued by a court, or under a general law or court rule 
on the subject, and reduced to writing and duly authen
ticated, and intended to be used in preparation and upon 
the trial of a civil action or criminal prosecution. A 
pretrial discovery device by which one party (through 
his or her attorney) asks oral questions of the other 
party or of a witness for the other party. The person 
who is deposed is called the deponent. The deposition is 
conducted under oath outside of the courtroom, usually 
in one of the lawyer's offices. A transcript-word for 
word account-is made of the deposition. Testimony of 
witness, taken in writing, under oath or affirmation, 
before some judicial officer in answer to questions or 
interrogatories. Fed.R. Civil P. 26 et seq.; Fed.R. 
Crim.P. 15. See also Discovery; Interrogatories. 
In ecclesiastical law, the act of depriving a clergyman, 
by a competent tribunal, of his clerical orders, to punish 
him for some offense and to prevent his acting in future 
in his clerical character. 
Oral deposition. Form of discovery by addressing ques
tions orally to person interrogated. Fed.R. Civil Proc. 
30. 
Written questions. Form of discovery in which written 
questions are addressed to person interrogated. Fed.R. 
Civil Proc. 3l. 
Deposition de bene esse / dep;}zish::m diy biyniy esiy /. 
Testimony to be read at the trial, so far as relevant and 
competent, as though the witness were present in court. 
Milprint, Inc. v. Macleod Laboratories, 127 N.J.L. 333, 
22 A.2d 566, 567. 
Deposito /deyposiytow/. In Spanish law, deposit; the 
species of bailment so called. 
A real contract by which one person confides to the 
custody of another an object on the condition that it 
shall be returned to him whenever he shall require it. 
Depositor. One who makes a deposit. One who delivers 
and leaves money with a bank on his order or subject to 
check. 
Depository. The place where a deposit (q.v.) is placed 
and kept; e.g. bank, savings and loan institutions, credit 
union, trust company. Place where something is depos
ited or stored as for safekeeping or convenience; e.g. 
safety deposit box. 
440 
This term should not be confused with "depositary" 
which is the person or institution taking responsibility 
for the deposit, rather than the place itself. 
United States depositories are banks selected and des
ignated to receive deposits of the public funds (e.g. taxes) 
of the United States. 
Depository bank. The first bank to which an item is 
transferred for collection even though it may also be the 
payor bank. U.C.C. § 4-105(a). 
Depository transfer check (DTC). An unsigned, non
negotiable check used to transfer funds from a local 
collection bank to a concentration bank. 
Depositum /d;}poz;}t;}m/. Lat. In the civil law, one of 
the forms of the contract of bailment, being a naked 
bailment of goods to be kept for the use of the bailor 
without reward. See Deposit. 
One of the four real contracts specified by Justinian, 
and having the following characteristics: (1) The deposi
tary or depositee is not liable for negligence, however 
extreme, but only for fraud, dolus; (2) the property 
remains in the depositor, the depositary having only the 
possession. Precarium and sequestre were two varieties 
of the depositum. 
De post disseisina / diy powst d;}siyz;}n;}/. Writ of post 
disseisin. A writ which lay for him who, having recov
ered lands or tenements by prrecipe quod reddat, on 
default, or reddition, was again disseised by the former 
disseisor. 
Depot / deypow /. In French law, the depositum of the 
Roman and the deposit of the English law. It is of two 
kinds, being either (1) depot simply so called, and which 
may be either voluntary or necessary, and (2) sequestre, 
which is a deposit made either under an agreement of 
the parties, and to abide the event of pending litigation 
regarding it, or by virtue of the direction of the court or 
a judge, pending litigation regarding it. 
De prrerogativa regis / diy pr;}rog;}tayva riyj;}s/. The 
English statute 17 Edw. I, St. 1, c. 9, defining the 
prerogatives of the crown on certain subjects, but espe
cially directing that the king shall have ward of the 
lands of idiots, taking the profits without waste, and 
finding them necessaries. 
De prresenti / diy pr;}zentay /. Of the present; in the 
present tense. See Per verba de prresenti. 
Deprave. To defame; to corrupt morally; vilify; exhibit 
contempt for. Corrupt, perverted or immoral state of 
mind. 
Depraved. As an adjective means marked by debase
ment, corruption, perversion or deterioration. State v. 
Weso, 60 Wis.2d 404, 210 N.W.2d 442, 446. 
Depraved mind. An inherent deficiency of moral sense 
and rectitude, equivalent to statutory phrase "depravity 
of heart" defined as highest grade of malice. A corrupt, 
perverted, or immoral state of mind. As required for 
conviction of second-degree murder, is one which is 
indifferent to the life of others. Jones v. State, 70 
Wis.2d 41, 233 N.W.2d 430, 435. Such state of mind is

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441 
equatable with malice in commonly understood sense of 
ill will, hatred, spite or evil intent. Weaver v. State, 
Fla.App., 220 So.2d 53, 60. 
Depreciable. Assets subject to depreciation; assets that 
decline in value or usefulness over a period of time 
through use or obsolescence. An example of depreciable 
assets includes machinery and equipment; land is a 
non-depreciable asset. See Depreciation. 
Depreciable life. For an asset, the time period over 
which depreciable cost is to be allocated. For tax re
turns, depreciable life may be shorter than estimated 
service life. 
Depreciation / d:lpriyshiyeysh:m/. In accounting, 
spreading out the cost of a capital asset over its estimat
ed useful life. Depreciation expense reduces the taxable 
income of an entity but does not reduce the cash. A 
decline in value of property caused by wear or obso
lescence and is usually measured by a set formula which 
reflects these elements over a given period of useful life 
of property. State Highway Commission v. Tubbs, 147 
Mont. 296, 411 P.2d 739, 744. Consistent, gradual pro
cess of estimating and allocating cost of capital invest
ments over estimated useful life of asset in order to 
match cost against earnings. Coca-Cola Bottling Co. of 
Baltimore v. U.S., 203 Ct.Cl. 18, 487 F.2d 528, 534. The 
depreciation expense recorded on the entity's tax return 
may differ from that recorded on the entity's financial 
statements. An entity usually uses an accelerated 
method on its tax return and the straight-line method 
on its financial statements due to the larger write-offs in 
the early years. As to intangible assets, see Amortization. 
As to natural resources, see Depletion. See also Acceler
ated Cost Recovery System; Accrued depreciation; Annu
al depreciation; Asset Depreciation Range; Recapture of 
depreciation; Useful life. 
Depreciation Methods 
Accelerated depreciation. Various methods of deprecia
tion that yield larger deductions in the earlier years of 
the life of an asset than the straight-line method. Ex
amples include the double declining-balance and the 
sum of the years' digits methods of depreciation. 
Accrued depreciation. See Accrued depreciation, and Ac
cumu lated depreciation, below. 
Accumul ated depreciation. Total depreciation recorded 
on an asset to date. On the balance sheet, accumulated 
depreciation reflects the book value of an asset. See 
also Accrued depreciation. 
Declining balance method. Under the declining balance 
method, the annual depreciation allowance is computed 
by multiplying the undepreciated cost of the asset each 
year by a uniform rate up to double the straight-line 
rate or 150 percent, as the case may be. 
Double declining method. Spreading the initial cost of a 
capital asset over time by deducting in each period 
double the percentage recognized by the straight-line 
method and applying that double percentage to the 
DEPRESSION 
undepreciated balance existing at the start of each peri
od. No salvage value is used in the calculation. 
Replacemen t cost method. The amortization or depreci
ation of an asset in which the value is fixed in terms of 
replacement cost. 
Sinking fund method. A process of recovering the value 
of an asset by setting up a sinking fund. 
Straight-line method. Under the straight-line method of 
depreciation, the cost or other basis (e.g., fair market 
value in the case of donated assets) of the asset, less its 
estimated salvage value, if any, is determined first; then 
this amount is written off in equal amounts over the 
period of the estimated useful life of the asset. Taking 
the initial cost of a capital asset, deducting the expected 
salvage value at the time it is expected to be discarded, 
and spreading the difference in equal installments per 
unit of time over an estimated life of the asset. 
Sum-of-the-year's digits method. Under this method, 
the annual depreciation allowance is computed by multi
plying the depreciable cost basis (cost less salvage value) 
by a constantly decreasing fraction. The numerator of 
the fraction is represented by the remaining years of 
useful life of the asset at the beginning of each year, and 
the denominator is always represented by the sum of the 
years' digits of useful life at the time of acquisition. 
Unit method. A depreciation or amortization method 
used in which an asset is written off in direct relation to 
the productivity of the asset. The cost of the asset is 
divided by the estimated total number of units to be 
produced. This unit cost is then multiplied by the 
number of units sold during the year resulting in the 
depreciation or amortization expense for the year. 
Depreciation reserve. An account kept on the books, as 
of a public utility, to offset the depreciation of the 
property due to time and use. It does not represent the 
actual depreciation of its properties which is to be de
ducted from the reproduction cost new to ascertain the 
present value for rate purposes; but only what observa
tion and experience suggest as likely to happen, with a 
margin over. In taxation, when gain is realized on 
disposition of depreciable property the gain must be 
reported as ordinary income, not capital gain, to the 
extent of depreciation previously taken as a deduction. 
I.R.C. §§ 1245, 1250. 
Depredation / depr:ldeysh:ln/. The act of plundering, 
robbing, or pillaging. Deal v. U. S., 274 U.S. 277, 47 
S.Ct. 613, 615, 71 L.Ed. 1045. 
In French law, pillage, waste, or spoliation of goods, 
particularly of the estate of a decedent. 
Depression. A period of economic stress; usually ac
companied by poor business conditions and high unem
ployment. McCuiston v. Haggard, 21 Tenn.App. 277, 
109 S.W.2d 413. A sharp decline in aggregate business 
activity that persists over an extended period of time. 
In economic parlance, a "depression" is more severe 
than a "recess ion." 
A hole or hollow.

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DEPRESSION 
Mental syndrome manifested by sense of inadequacy, 
self-depreciation, melancholy, and guilt feelings. 
Depressive reaction. Mental or emotional condition, 
precipitated by some external factor and manifested by 
guilt, self-depreciation, psychomotor retardation, defec
tion and/or sense of inadequacy; generally considered to 
be a neurosis. 
Deprivation /depr;}veysh:m/. A taking away or confis
cation; as the deprivation of a constitutional right or 
the taking of property under eminent domain without 
due process of law (i.e. without just compensation). See 
also Deprivation of proper ty. 
Deprivation of property. Due process guaranty which 
is abridged when government takes private property 
without just compensation except under extraordinary 
circumstances of the police power, though for depriva
tion of property there is not required an actual, physical" 
taking for private or public use. Even a temporary 
deprivation of property constitutes a "deprivation" with
in meaning of Fourteenth Amendment. Remm v. Lan
drieu, D.C.La., 418 F.Supp. 542, 545. See Condemnation; 
Eminent domain; Expropriation; Just compensation; Tak
ing. 
Deprive. As used in the statute proscribing the offense 
of receiving stolen property means to withhold property 
from the owner permanently or to use or dispose of the 
property in a manner that makes recovery of the proper
ty by the owner unlikely. State v. Freeman, Mo.App., 
667 S.W.2d 443, 446. See Deprive permanently. 
Deprive permanently. To "deprive permanently" 
means to: (a) Take from the owner the possession, use or 
benefit of his property, without an intent to restore the 
same; or (b) Retain property without intent to restore 
the same or with intent to restore it to the owner only if 
the owner purchases or leases it back, or pays a reward 
or other compensation for its return; or (c) Sell, give, 
pledge or otherwise dispose of any interest in property 
or subject it to the claim of a person other than the 
owner. 
De procedendo ad judicium /diy pro(w)s;}dendow red 
juwdish(iy);}m/. An old English writ proceeding out of 
chancery and ordering the judges of any court to pro
ceed to judgment. 3 BLComm. 109. 
Deprogramming. As the term has become known, is 
the process whereby individuals who are members of 
certain religious groups are subjected to a scheme of 
brain-washing or mind control in an attempt to dissuade 
them of their religious beliefs. Baer v. Baer, D.C.CaL, 
450 F.Supp. 481, 485. 
De proprietate probanda / diy pr;}pray;}teytiy 
pr;}brend;}/. Writ for proving property. An old English 
writ directed to the sheriff, to inquire of the property or 
goods distrained, where the defendant in an action of 
replevin claims the property. 3 Bl.Comm. 148. 
Deputize. To appoint a deputy; to appoint or commis
sion one to act as deputy to an officer. In a general 
sense, the term is descriptive of empowering one person 
to act for another in any capacity or relation, but in law 
442 
it is almost always restricted to the substitution of a 
person appointed to act for an officer of the law. 
Deputy. A substitute; a person duly authorized by an 
officer to exercise some or all of the functions pertaining 
to the office, in the place and stead of the latter. One 
appointed to substitute for another with power to act for 
him in his name or behalf. A substitute for another and 
is empowered to act for him in his name and behalf in 
all matters in which principal may act. Williams v. 
Ferrentino, Fla.App., 199 So.2d 504, 511. 
Deputy consul. See Consul. 
Deputy sheriff. One appointed to act in the place and 
stead of the sheriff in the official business of the latter's 
office. A general deputy (sometimes called "undersher
iff') is one who, by virtue of his appointment, has 
authority to execute all the ordinary duties of the office 
of sheriff, and who executes process without any special 
authority from his principal. A special deputy, who is 
an officer pro hac vice, is one appointed for a special 
occasion or a special service, as, to serve a particular 
writ or to assist in keeping the peace when a riot or 
tumult is expected or in progress. He acts under a 
specific and not a general appointment and authority. 
Deputy steward. In English law steward of a manor 
could depute or authorize another to hold a court; and 
the acts done in a court so holden were as legal as if the 
court had been holden by the chief steward in person. 
So an under steward or deputy could authorize another 
as subdeputy, pro hac vice, to hold a court for him; such 
limited authority not being inconsistent with the rule 
delegatus non potest delegare. 
Special deputy. One appointed to exercise some special 
function or power of the official or person for whom he 
is appointed. See also Deputy sheriff, above. 
De quarantina habenda /diy kwor;}ntayn;} h;}bend;}/. 
At common law, a writ which a widow entitled to 
quarantine might sue out in case the heir or other 
persons ejected her. It seems to have been a summary 
process, and required the sheriff, if no just cause were 
shown against it, speedily to put her into possession. 
De quibus sur disseisin / diy kwib;}s s;}r d;}siyz;}n/. An 
ancient writ of entry. 
De quo / diy kwow / and de quibus / diy kwib;}s/. Of 
which. Formal words in the simple writ of entry, from 
which it was called a writ of entry "in the quo," or "in 
the quibus." 
De quota litis / diy kwowt;} layt;}s/. In the civil law, a 
contract by which one who has a claim difficult to 
recover agrees with another to give a part, for the 
purpose of obtaining his services to recover the rest. 
Deraign / d;}reyn/ . To prove; to vindicate; to disprove 
allegations. 
Derangement. See Insanity. 
De raptu virginum /diy rrept(y)uw v:lrj;}n;}m/. Of the 
ravishment of maids. The name of an appeal formerly 
in use in England in cases of rape.

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443 
De rationabilibus divisis I diy rresh:mabibbas davayzas/. 
Writ for fixing reasonable boundaries. A writ which lay 
to settle the boundaries between the lands of persons in 
different towns, where one complained of encroachment. 
De rationabili parte bonorum I diy rresh(iy)aneybalay 
partiy b:moram/. A writ which lay for the widow (and 
children) of a deceased person against his executors, to 
recover a third part of the deceased's person
alty, after payment of his debts, or to recover their 
reasonable part or share of his goods. 2 Bl.Comm. 492. 
Derecho Idereychow/. In Spanish law, law or right. 
Derecho comun, common law. The civil law is so called. 
A right. Derechos, rights. Also, specifically, an impost 
laid upon goods or provisions, or upon persons or lands, 
by way of tax or contribution. 
De recordo et processu mittendis I diy rakordow et 
prasesyuw matendas/. Writ to send the record and 
process of a cause to a superior court; a species of writ 
of error. 
De recto Idiy rektow/. Writ of right. See Writ of right. 
De recto de advocatione I diy rektow diy redvakey
shiyowniy/. Writ of right of advowson. An old English 
writ which lay for one who had an estate in an advow
son to him and his heirs in fee-simple, if he were 
disturbed to present. Abolished by St. 3 & 4 Wm. IV, c. 
27. 
De recto de rationabili parte I diy rektow diy 
rreshaneybalay partiy/. Writ of right, of reasonable 
part. An old English writ which lay between privies in 
blood, as between brothers in gavelkind, or between 
sisters or other coparceners for lands in fee-simple, 
where one was deprived of his or her share by another. 
Abolished by St. 3 & 4 Wm. IV, c. 27. 
De recto patens Idiy rektow peytenz/. Writ of right 
patent. 
De redisseisina Idiy riydasiyzana/. Writ of redisseisin. 
A writ which lay where a man recovered by assise of 
novel disseisin land, rent, or common, and the like, and 
was put in possession thereof by verdict, and afterward 
was disseised of the same land, rent, or common, by him 
by whom he was disseised before. 
Deregistration. Deregistration of an issuer of securities 
occurs when the number of securities holders of an 
issuer registered under section 12 of the Securities Ex
change Act of 1934 has declined to the point where 
registration is no longer required. See also Delisting; 
Registered corporation. 
Deregulation. Reduction of government regulation of 
business to permit freer markets and competition. 
Derelict I deraliktl . Forsaken; abandoned; deserted; 
cast away. Personal property abandoned or thrown 
away by the owner in such manner as to indicate that 
he intends to make no further claim thereto. 
Land left uncovered by the receding of water from its 
former bed. See Dereliction. 
DERIVATIVE ACTION 
A boat or vessel found entirely deserted or abandoned 
on the sea without hope or intention of recovery or 
return by the master or crew, whether resulting from 
wreck, accident, necessity, or voluntary abandonment. 
When a vessel, without being abandoned, is no longer 
under the control or direction of those on board (as 
where part of the crew are dead, and the remainder are 
physically and mentally incapable of providing for their 
own safety), she is said to be quasi derelict. When the 
crew have left their vessel temporarily, with the inten
tion of returning to resume possession, she is not techni
cally a derelict, but is what may be termed a "quasi 
derelict." 
Dereliction I deralikshan/. The gaining of land from the 
water, in consequence of the sea, river, or stream shrink
ing back below the usual water mark; the opposite of 
alluvion (q.v.). Mexico Beach Corp. v. St. Joe Paper Co., 
97 So.2d 708, 710. Also, land left dry by running water 
retiring imperceptibly from one of its shores and en
croaching on the other. "Dereliction" or "renunciation" 
of property at sea as well as on land requires both the 
intention to abandon and external action. The No. 105, 
C.C.A.Fla., 97 F.2d 425, 426. See also Accretion; Avul
sion; Reliction. 
In the civil law, the voluntary abandonment of goods 
by the owner, without the hope or the purpose of re
turning to the possession. 
De reparatione facienda I diy repareyshiyowniy 
fres(h)iyenda/. A writ by which one tenant in common 
sought to compel another to aid in repairing the proper
ty held in common. 
De rescussu Idiy rask:lsyuw/. Writ of rescue or rescous. 
A writ which lay where cattle distrained, or persons 
arrested, were rescued from those taking them. 
De retorno habendo I diy ratornow habendow I. For 
having a return; to have a return. A term applied to 
the judgment for the defendant in an action of replevin, 
awarding him a return of the goods replevied; and to 
the writ or execution issued thereon. 3 Bl.Comm. 149. 
Applied also to the sureties given by the plaintiff on 
commencing the action. 
D.E.R.I.C. An abbreviation used for De ea re ita censuere 
(concerning that matter have so decreed), in recording 
the decrees of the Roman senate. 
De rien culpable Ida riyn k:llpaball. L. Fr. Guilty of 
nothing; not guilty. 
Derivative. Coming from another; taken from some
thing preceding; secondary. That which has not its 
origin in itself, but owes its existence to something 
foregoing. Anything obtained or deduced from another. 
Derivative action. A suit by a shareholder to enforce a 
corporate cause of action. The corporation is a neces
sary party, and the relief which is granted is a judgment 
against a third person in favor of the corporation. Price 
v. Gurney, Ohio, 324 U.S. 100, 65 S.Ct. 513, 516, 89 L.Ed. 
776. An action is a derivative action when the action is 
based upon a primary right of the corporation, but is 
asserted on its behalf by the stockholder because of the

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DERIVATIVE ACTION 
corporation's failure, deliberate or otherwise, to act 
upon the primary right. Lehrman v. Godebaux Sugars, 
207 Misc. 314, 138 N.Y.S.2d 163, 168. Procedure in such 
actior-s in federal courts is governed by Fed.R. Civil P. 
23.1. Most states also have similar procedural rules or 
statutes for such actions. 
Term is also used in reference to actions based on 
injury to another; e.g., action for loss of consortium by 
husband against third person for injuries to wife. See 
Consortium; also, Derivative liability. 
Derivative contraband. Items of property not other
wise illegal but subject to forfeiture according to use to 
which they are put. Kane v. McDaniel, D.C.Ky., 407 
F.Supp. 1239, 1242. 
Derivative conveyances. Conveyances which presup
pose some other conveyance precedent, and only serve to 
enlarge, confirm, alter, restrain, restore, or transfer the 
interest granted by such original conveyance. They are 
releases, confirmations, surrenders, assignments, and de
feasances. 2 Bl.Comm. 324. 
Derivative evidence. Evidence which is derived or 
spawned from other illegally obtained evidence is inad
missible because of the primary taint. See Fruit of 
poisonous tree doctrine. 
Derivative jurisdiction doctrine. Under this doctrine, 
a case is not properly removable unless it is within the 
subject matter jurisdiction of the state court from which 
it is removed. Harvey v. Price, D.C.Ill., 603 F.Supp. 
1205, 1207. 
Derivative liability. There are two distinct categories 
of "derivative liability": in the first category is the 
action which a plaintiff may institute to redress a wrong 
done to another; in the second category is the action 
which a plaintiff may institute to redress a wrong done 
to himself which is proximately caused by a wrong done 
to another. Garfield v. U.S., D.C.Wis., 297 F.Supp. 891, 
900. See also Derivative action; Vicarious liability. 
Derivative suit. See Derivative action. 
Derivative title. The common-law principle, codified 
repeatedly in the U.C.C., that a transferee of property 
acquires only the transferor's rights therein. 
Derivative tort. Tort liability may be imposed on a 
principal for wrong committed by agent and to this 
extent the principal's liability is derivative. See also 
Derivative liability; Vicarious liability. 
Derivative work. Under the copyright law, a work 
based on a pre-existing work, such as · a translation, 
musical arrangement, fictionalization, motion picture 
version, abridgment or any other form in which a work 
may be recast, transformed or adapted, is a derivative 
work. Only the holder of copyright in the underlying 
work (or one acting with his permission) may prepare a 
derivative work. The preparation of such a work by any 
other party constitutes infringement. See Copyright 
Act, 17 U.S.C.A. § 101. 
Derive. To receive from a specified source or orIgm. 
Crews v. Commissioner of Internal Revenue, C.C.A.lO, 
444 
89 F.2d 412, 416. To proceed from property, sever from 
capital, however invested or employed, and to come in, 
receive or draw by taxpayer for his separate use, benefit, 
and disposal. Staples v. United States, D.C.Pa., 21 
F.Supp. 737, 739. 
Derived. Received from specified source. 
Derogation Ider;}geysh:m/. The partial repeal or abol
ishing of a law, as by a subsequent act which limits its 
scope or impairs its utility and force. Distinguished 
from abrogation, which means the entire repeal and 
annulment of a law. 
Derogation from grant. Provision in an instrument of 
transfer such as a deed which diminishes or militates 
against the grant itself. 
Derogatory clause. In a will, this is a sentence or 
secret character, inserted by the testator, of which he 
reserves the knowledge to himself, with a condition that 
no will he may make thereafter should be valid, unless 
this clause be inserted word for word. This is done as a 
precaution to guard against later wills being extorted by 
violence, or otherwise improperly obtained. Such a pro
vision is anomalous. 
Derogatur legi, cum pars detrahitur; abrogatur legi, 
cum prorsus tollitur Ider;}geyt;}r liyjay, k�m parz 
d;}trey(h);}t;}r; rebr;}geyt;}r liyjay, k�m prors;}s tol;}t;}r/. 
To derogate from a law is to take away part of it; to 
abrogate a law is to abolish it entirely. 
Desafuero Ideysaf(u)werow/. In Spanish law, an irregu
lar action committed with violence against law, custom, 
or reason. 
De salva gardia Idiy srelv;} gardiy;}/. A writ of safe
guard allowed to strangers seeking their rights in Eng
lish courts, and apprehending violence or injury to their 
persons or property. 
De salvo conductu Idiy srelvow k;}nd�kt(y)uw/. A writ 
of safe conduct. 
Desamortizacion I deysamortiysasyown/. In Mexican 
law, the desamortizacion of property is to take it out of 
mortmain (dead hands); that is, to unloose it from the 
grasp, as it were, of ecclesiastical or civil corporations. 
The term has no �quivalent in English. 
De sa vie Id;} sa viy/. L. Fr. Of his or her life; of his 
own life; as distinguished from pur autre vie, for anoth
er's life. 
De scaccario I diy sk;}keriyow I. Of or concerning the 
exchequer. The title of a statute passed in the fifty-first 
year of Henry III. 
Descend. To pass by succession; as when the estate 
vests by operation of law in the heirs immediately upon 
the death of the ancestor. The term, as used in some 
statutes, includes an acquisition by devise. Cordon v. 
Gregg, 164 Or. 306, 101 P.2d 414, 415. To pass down 
from generation to generation. To go or pass to; often 
used as a word of transfer. As used in wills, the word is 
often regarded as a general expression equivalent to the 
words "go to" or "belong to," and as indicating a passing

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445 
of title by the force of the will rather than of the statute. 
See Descent. 
Descendant or descendent. Those persons who are in 
the blood stream of the ancestor. Term means those 
descended from another, persons who proceed from a 
body of another such as a child or grandchild, to the 
remotest degree; it is the opposite of "ascendants". 
Bassett v. Merlin, Inc., Fla.App., 304 So.2d 543, 544. In 
the plural, the term means issue, offspring or posterity 
in general. Also, all those to whom an estate descends, 
whether it be in a direct or collateral line from the 
intestate. See Descent. 
Lineal descendant. One who is in the line of descent 
from the ancestor. The term may include an adopted 
child. 
Descender. Descent; in the descent. See Formedon. 
Descendibility of future interests. Legal suitability of 
a future interest such as a remainder or executory 
interest to pass by inheritance on death of the holder. 
Descendible. Capable of passing by descent, or of being 
inherited or transmitted by devise (spoken of estates, 
titles, offices, and other property). 
Descent. Hereditary succession. Succession to the own
ership of an estate by inheritance, or by any act of law, 
as distinguished from "purchase ." Title by descent is 
the title by which one person, upon the death of anoth
er, acquires the real estate of the latter as his heir at 
law. 2 Bl.Comm. 201. The title by inheritance is in all 
cases called descent, although by statute law the title is 
sometimes made to ascend. 
The division among those legally entitled thereto of 
the real property of intestates. 
See also Per capita; Per stirpes. 
Classification 
Descents are of two sorts, lineal and collateral. Lin
eal descent is descent in a direct or right line, as from 
father or grandfather to son or grandson. Collateral 
descent is descent in a collateral or oblique line, that is, 
up to the common ancestor and then down from him, as 
from brother to brother, or between cousins. They are 
also distinguished into mediate and immediate descends. 
But these terms are used in different senses. A descent 
may be said to be a mediate or immediate descent of the 
estate or right; or it may be said to be mediate or 
immediate, in regard to the mediateness or immediate
ness of the pedigree or consanguinity. Thus, a descent 
from the grandfather, who dies in possession, to the 
grandchild, the father being then dead, or from the 
uncle to the nephew, the brother being dead, is, in the 
former sense, in law, immediate descent, although the 
one is collateral and the other lineal; for the heir is in 
the per, and not in the per and cui. On the other hand, 
with reference to the line of pedigree or consanguinity, a 
descent is often said to be immediate, when the ancestor 
from whom the party derives his blood is immediate, 
and without any intervening link or degrees; and me
diate, when the kindred is derived from him mediante 
DESCRIPTION 
altero, another ancestor intervening between them. 
Thus a descent in lineals from father to son is in this 
sense immediate; but a descent from grandfather to 
grandson, the father being dead, or from uncle to neph
ew, the brother being dead, is deemed mediate; the 
father and the brother being, in these latter cases, the 
medium deferens, as it is called, of the descent or consan
guinity. 
Descent was denoted, in the Roman law, by the term 
"successio, " which is also used by Bracton, from which 
has been derived the succession of the Scotch and 
French jurisprudence. 
Line of Descent 
The order or series of persons who have descended one 
from the other or all from a common ancestor, con
sidered as placed in a line of succession in the order of 
their birth, the line showing the connection of all the 
blood-relatives. 
Collateral line. A line of descent connecting persons 
who are not directly related to each other as ascendants 
or descendants, but whose relationship consists in com
mon descent from the same ancestor. 
Direct line. A line of descent traced through those 
persons only who are related to each other directly as 
ascendants or descendants. 
Maternal line. A line of descent or relationship be
tween two persons which is traced through the mother 
of the younger. 
Paternal line. A similar line of descent traced through 
the father. 
Descent cast. The devolving of realty upon the heir on 
the death of his ancestor intestate. 
Another name for what was formerly called a "de
scent which tolls entry." When a person had acquired 
land by disseisin, abatement, or intrusion, and died 
seised of the land, the descent of it to his heir took away 
or tolled the real owner's right of entry, so that he could 
only recover the land by an action. 
Describe. To narrate, express, explain, set forth, relate, 
recount, narrate, depict, delineate, portray; sketch. Of 
land, to give the metes and bounds. 
Description. A delineation or account of a particular 
subject by the recital of its characteristic accidents and 
qualities. 
A written enumeration of items composing an estate, 
or of its condition, or of titles or documents; like an 
inventory, but with more particularity, and without 
involving the idea of an appraisement. 
An exact written account of an article, mechanical 
device, or process which is the subject of an application 
for a patent. 
A method of pointing out a particular person by 
referring to his relationship to some other person or his 
character as an officer, trustee, executor, etc.

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DESCRIPTION 
That part of a conveyance, advertisement of sale, etc., 
which identifies the land or premises intended to be 
affected. 
A fair portrayal of the chief features of the proposed 
law in words of plain meaning, so that it can be under
stood by the persons entitled to vote. Sawyer Stores v. 
Mitchell, 103 Mont. 148, 62 P.2d 342, 348. 
That part of affidavit for search warrant describing 
the place to be searched. 
For description of criminal suspect, see Lineup. 
See also Identification. 
Descriptio personre Id;}skripsh(iy)ow p;}rsQwniy/. Lat. 
Description of the person. By this is meant a word or 
phrase used merely for the purpose of identifying or 
pointing out the person intended, and not as an intima
tion that the language in connection with which it 
occurs is to apply to him only in the official or technical 
character which might appear to be indicated by the 
word. Forrester v. Cantley, 227 Mo.App. 325, 51 S.W.2d 
550, 551. 
In wills, it sometimes happens that the word heir is 
used as a descriptio persorue. A legacy "to the eldest 
son" of A would be a designation of the person. 
Descriptive. Containing a description; serving or aim
ing to describe; having the quality of representing. 
Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 
348. See also Identification. 
Descriptive mark. A trademark which merely de
scribes the goods to which it is affixed. A descriptive 
mark will only be protected or registrable if the user can 
demonstrate secondary meaning. See also Secondary 
meaning. 
If trademark imparts information directly, it is "de
scriptive"; if it stands for an idea which requires some 
operation of the imagination connected with the goods, 
it is "suggestive"; the information imparted may con
cern a characteristic, quality or ingredient of the prod
uct. Union Carbide Corp. v. Ever-Ready, Inc., C.A.Ill., 
531 F.2d 366, 378. 
Descriptive term. See Descriptive mark. 
De scutagio habendo I diy skyuwteyjiyow h;}b€mdow I. 
Writ for having (or to have) escuage or scutage. A writ 
which anciently lay against tenants by knight-service, to 
compel them to serve in the king's wars or send substi
tutes or to pay escuage; that is a sum of money. The 
same writ lay for one who had already served in the 
king's army, or paid a fine instead, against those who 
held of him by knight-service, to recover his escuage or 
scutage. 
De se bene gerendo I diy siy biyniy j;}rendow I. For 
behaving himself well; for his good behavior. 
Desecrate. To violate sanctity of, to profane, or to put to 
unworthy use. Offense consists of defacing, damaging, 
446 
polluting or otherwise physically mistreating in a way 
that the actor knows will outrage the sensibilities of 
persons likely to observe or discover his action. Model 
Penal Code, § 250.9. See also Deface; Defile; Flag 
desecration. 
De secta ad molendinum I diy sekt;} eM m;}lend;m;}m/. 
Of suit to a mill. An old English writ which lay to 
compel one to continue his custom (of grinding) at a 
mill. 3 Bl.Comm. 235. 
Desegregation. The judicial mandate eliminating color 
of a person as a basis for disqualification to attend the 
school of his or her choice or to work at place of 
employment of his or her choice. See Brown decision; 
Discrimination. 
Desert. To leave or quit with an intention to cause a 
permanent separation; to forsake utterly; to abandon. 
It is essentially willful in nature. 
Desertion. The act by which a person abandons and 
forsakes, without justification, or unauthorized, a sta
tion or condition of public, social, or family life, renounc
ing its responsibilities and evading its duties. A willful 
abandonment of an employment or duty in violation of a 
legal or moral obligation. 
Criminal desertion is a husband's or wife's abandon
ment or willful failure without just cause to provide for 
the care, protection or support of a spouse who is in ill 
health or necessitous circumstances. 
See also Abandonment; Desertion and non-support; 
Non-su pport. 
Adoption. As used in statute providing that parental 
consent to adoption is not required when parent has 
wilfully deserted child evinces settled purpose to forego, 
abandon, or desert all parental duties and parental 
rights in child. Moody v. Voorhies, 257 Or. 105, 475 
P.2d 579, 581. 
Constructive desertion. That arising where an existing 
cohabitation is put an end to by misconduct of one of the 
parties, provided such misconduct is itself a ground for 
divorce. For example, where one spouse, by his or her 
words, conduct, demeanor, and attitude produces an 
intolerable condition which forces the other spouse to 
withdraw from the joint habitation to a more peaceful 
one. West v. West, 264 Ky. 826, 95 S.W.2d 789, 790. 
Divorce law. As a ground for divorce, an actual aban
donment or breaking off of matrimonial cohabitation, by 
either of the parties, and a renouncing or refusal of the 
duties and obligations of the relation, with an intent to 
abandon or forsake entirely and not to return to or 
resume marital relations, occurring without legal justifi
cation either in the consent or the wrongful conduct of 
the other party. The elements of offense of "desertion" 
as ground for divorce are a voluntary intentional aban
donment of one party by the other, without cause or 
justification and without consent of party abandoned. 
See also Constructive desertion, above; and Desertion and 
non-support.

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447 
Maritime law. The act by which a seaman deserts and 
abandons a ship or vessel, in which he had engaged to 
perform a voyage, before the expiration of his time, and 
without leave. By desertion, in the maritime law, is 
meant, not a mere unauthorized absence from the ship 
without leave, but an unauthorized absence from the 
ship, with an intention not to return to her service, or, 
as it is often expressed, animo non revertendi; that is, 
with an intention to desert. The Cripple Creek, D.C.Pa., 
52 F.Supp. 710, 712 (strike); The Youngstown, C.C.A.La., 
110 F.2d 968, 970. Desertion, within statute providing 
for forfeiture of wages of deserting seaman, consists of 
seaman's unconsented abandonment of duty by quitting 
ship before termination of engagement specified in arti
cles he signed, without justification and with intention 
of not returning. Petition of Russo, D.C.Cal., 232 
F.Supp. 650, 65l. 
Military law. Any member of the armed forces who
(1) without authority goes or remains absent from his 
unit, organization, or place of duty with intent to re
main away therefrom permanently; (2) quits his unit, 
organization, or place of duty with intent to avoid haz
ardous duty or to shirk important service; or (3) without 
being regularly separated from one of the armed forces 
enlists or accepts an appointment in the same or anoth
er one of the armed forces without fully disclosing the 
fact that he has not been regularly separated, or enters 
any foreign armed service except when authorized by 
the United States; is guilty of desertion. Code of Mili
tary Justice, 10 U.S.C.A. § 885. 
Non-support. Desertion is frequently accompanied by 
non-support, which may be a crime. See also Desertion 
and non-supp ort; Non-support. 
Obstinate desertion. See Obstinate desertion. 
Desertion and non-support. While both desertion and 
non-support go hand in hand in many cases, they are 
distinguishable because a man may be guilty of deser
tion and not guilty of non-support. The converse is also 
true because a man may be guilty of wilfully failing to 
support though he remains in the marital home. See 
also Desertion; Non-su pport. 
Deserving. Worthy or meritorious, without regard to 
condition or circumstances. In no sense of the word is it 
limited to persons in need of assistance, or objects which 
come within the class of charitable uses. 
Deshonra /deysonora/. In Spanish law, dishonor; inju
ry; slander. 
Design. To form plan or scheme of, conceive and ar
range in mind, originate mentally, plan out, contrive. 
Also, the plan or scheme conceived in mind and intend
ed for subsequent execution; preliminary conception of 
idea to be carried into effect by action; contrivance in 
accordance with preconceived plan. A project, an idea. 
As a term of art, the giving of a visible form to the 
conceptions of the mind, or invention. 
In evidence, purpose or intention, combined with plan, 
or implying a plan in the mind. 
DESIGNED 
In patent law, the drawing or depiction of an original 
plan or conception for a novel pattern, model, shape, or 
configuration, to be used in the manufacturing or textile 
arts or the fine arts, and chiefly of a decorative or 
ornamental character. "Design patents" are contrasted 
with "utility patents," but equally involve the exercise 
of the inventive or originative faculty. Design, in the 
view of the patent law, is that characteristic of a physi
cal substance which, by means of lines, images, configu
ration, and the like, taken as a whole, makes an impres
sion, through the eye, upon the mind of the observer. 
The essence of a design resides not in the elements 
individually, nor in their method of arrangement, but in 
the total ensemble-in that indefinable whole that 
awakens some sensation in the observer's mind. Im
pressions thus imparted may be complex or simple. But 
whatever the impression, there is attached in the mind 
of the observer, to the object observed, a sense of unique
ness and character. 
Designate. To indicate, select, appoint, nominate, or set 
apart for a purpose or duty, as to designate an officer for 
a command. To mark out and make known; to point 
out; to name; indicate. New Haven Federation of 
Teachers v. New Haven Bd. of Ed., 27 Conn.Sup. 298, 
237 A.2d 373, 380. See also Identification. 
Designating petition. Means used to designate a candi
date for a party nomination at a primary election or for 
election to party position. 
Designatio justiciariorum est a rege; jurisdictio vero 
ordinaria a lege /dez�gneysh(iy)ow j�stishiyeriyor�m 
est ey riyjiy; jur�sdiksh(iy)ow vir� ord�neriy� ey liyjiy/ 
The appointment of justices is by the king, but their 
ordinary jurisdiction by the law. 
Designation. An addition to a name, as of title, profes
sion, trade, or occupation, to distinguish the person from 
others. A description or descriptive expression by which 
a person or thing is denoted in a will without using the 
name. Also, an appointment or assignment, as to a 
particular office. The act of pointing out, distinguishing 
by marks of description, or calling by a distinctive title. 
See also Identification. 
Designatio personre / dez�gneysh(iy)\.iw p�rsowniy /. The 
description of a person or a party to a deed or contract. 
See also Descriptio personre. 
Designatio unius est exclusio alterius, et expressum 
facit cessare tacitum /dez�gneysh(iy)ow yuwmiy�s est 
�kskluwzh(iy)ow olt�ruyyes, et �kspres�m feys�t s�seriy 
tres�t�m/. The specifying of one is the exclusion of 
another, and that which is expressed makes that which 
is understood to cease. (The appointment or designation 
of one is the exclusion of the other; and that which is 
expressed prevails over that which is implied.) 
Designed. Contrived or taken to be employed for a 
particular purpose. Fit, adapted, prepared, suitable, 
appropriate. Intended, adapted, or designated. The 
term may be employed as indicating a bad purpose with 
evil intent.

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DESIGNEDLY 
Designedly. Sometimes equivalent to the words "wilful
ly," "knowingly," "unlawfully," and "feloniously." 
De similihus ad similia eadem ratione procedendum 
est I diy s�mil�b�s red s�miliy� iyeyd�m reyshiyowniy 
prows�dend�m est!. From like things to like things we 
are to proceed by the same rule or reason [i.e., we are 
allowed to argue from the analogy of cases]. 
De similihus idem est judicandum I diy s�mibb�s 
ayd�m est juwd�krend�m/. Of [respecting] like things 
[in like cases], the judgment is to be the same. 
Desire. To ask, to request. Sometimes, to empower or 
authorize. According to context or circumstances, the 
word may import a request or even a demand, but 
ordinarily means to wish for more or less earnestly. 
This term, used in a will in relation to the manage
ment and distribution of property, has been interpreted 
by the courts with different shades of meaning, varying 
from the mere expression of a preference to a positive 
command. The word "desire" may be as effective as if 
the word "devise" or "bequeath" had been used. Drin
kard v. Hughes, Tex.Civ.App., 32 S.W.2d 935, 936. 
See also Intent. 
Desistement Id�sistm�nt /. The name of a doctrine un
der which the court, in construing a foreign will, applies 
the law of the forum on the theory that· there is a 
hiatus. 
Deslinde I deysliyndey I. A term used in the Spanish 
law, denoting the act by which the boundaries of an 
estate or portion of a country are determined. 
Desmemoriados Ideysmemoriyaoows/. In Spanish law, 
persons deprived of memory. 
De son tort Id� sown tor(t)/. L. Fr. Of his own wrong. 
An executor de son tort is an executor of his own wrong. 
A person who assumes to act as executor of an estate 
without any lawful warrant or authority, but who, by 
his intermeddling, makes himself liable as an executor 
to a certain extent. If a stranger takes upon him to act 
as executor without any just authority, he is called in 
law an "executor of his own wrong," de son tort. 2 
Bl.Comm. 507. 
De son tort demesne Id� sown tor(t) d�miyn/. Of his 
own wrong. The law French equivalent of the Latin 
phrase de injuria (q. v.). 
Despitus I desp�t�s /. Contempt. A contemptible person. 
Despoil I d�spoyl /. This word involves, in its significa
tion, violence or clandestine means by which one is 
deprived of that which he possesses. 
Despo jar I deyspowhar I. A possessory action of the 
Mexican law. It is brought to recover possession of 
immovable property, of which one has been despoiled 
(despojado) by another. See also Despoil. 
Desponsation I d�sponseysh�n/. The act of betrothing 
persons to each other. 
Desposorio I despowsoriyow I. In Spanish law � espous
als; mutual promises of future marriage. 
448 
Despot. This word, in its original and most simple 
acceptation, signifies master and supreme lord; it is 
synonymous with monarch. A ruler with absolute pow
er and authority, but taken in bad sense, as it is usually 
employed, it signifies a tyrant. In some nations, despot 
is the title given to the sovereign, as king is given in 
others. 
Despotism I desp�tiz�m/. That abuse of government 
where the sovereign power is not divided, but united and 
unlimited in the hands of a single man, whatever may 
be his official title. It is not, properly, a form of govern
ment. 
"Despotism" is not exactly synonymous with "autocra
cy," for the former involves the idea of tyranny or abuse 
of power, which is not necessarily implied by the latter. 
Every despotism is autocratic; but an autocracy is not 
necessarily despotic. 
Dessaisissement Ideseyziysmon/. In French law, when 
a person is declared bankrupt, he is immediately de
prived of the enjoyment and administration of all his 
property; this deprivation, which extends to all his 
rights, is called "dessaisissement." 
De statuto mercatorio Idiy st�tyUwtow m�rk�teriyow/. 
The writ of statute merchant. 
De statuto stapulre I diy st�tyuwtow steyp�liy I. The 
writ of statute staple. 
Destination. The purpose to which it is intended an 
article or a fund shall be applied. Act of appointing or 
setting aside for a purpose. A testator gives a destina
tion to a legacy when he prescribes the specific use to 
which it shall be put. Place to which something is sent; 
place set for end of journey; terminal point to which one 
directs his course. 
Destination hill. Instead of issuing a bill of lading to 
the consignor at the place of shipment a carrier may at 
the request of the consignor procure the bill to be issued 
at destination or at any other place designated in the 
request. Vpon request of anyone entitled as against the 
carrier to control the goods while in transit and on 
surrender of any outstanding bill of lading or other 
receipt covering such goods, the issuer may procure a 
substitute bill to be issued at any place designated in the 
request. V.C.C. § 7-305. 
Destination contract. Contract between seller and buy
er by which risk of loss passes to buyer upon seller's 
tender of goods at destination. V.C.C. § 2-509(1)(b). 
Destination du pare de famille I dest�nasyown dyllw 
per d� f�miy I. A use which owner has intentionally 
established on one part of his property in favor of 
another part, and which is equal to a title with respect 
to perpetual and apparent servitudes thereon. 
Destitute. Not possessing necessaries of life; in condi
tion of extreme want; bereft; lacking possessions and 
resources. Destitute of Bennington County by Van 
Santvoord v. Henry W. Putnam Me mori al Hospital, 125 
Vt. 289, 215 A.2d 134, 138. See also Indigent.

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449 
Destitute or necessitous circumstances. Circumstanc
es in which one needs the necessaries of life, which cover 
not only primitive physical needs, things absolutely in
dispensable to human existence and decency, but those 
things, also, which are in fact necessary to the particu
lar person left without support. 
Destroy. Term is susceptible of applications in a variety 
of contexts, but in general, it means to ruin completely 
and may include a taking. State v. Robinson, 266 Minn. 
166, 123 N.W.2d 812. To ruin the structure, organic 
existence or condition of a thing; to demolish; to injure 
or mutilate beyond possibility of use; to nullify. State 
by Clark v. Wol koff, 250 Minn. 504, 85 N.W.2d 401, 410. 
As used in policies of insurance, leases, and in mari
time law, and under various statutes, this term is often 
applied to an act which renders the subject useless for 
its intended purpose, though it does not literally demol
ish or annihilate it. 
In relation to wills, contracts, and other documents, 
the term "destroy" does not import the annihilation of 
the instrument or its resolution into other forms of 
matter, but a destruction of its legal efficacy, which may 
be by cancellation, obliterating, tearing into fragments, 
etc. 
Destructibility. Capability of being destroyed by some 
action or turn of events or by operation of law. In 
estates, a characteristic of contingent remainders which 
requires them to have become vested remainders on or 
before the time they are to become possessory or else 
suffer total destruction. See term below. 
Destructibility of contingent remainders. Doctrine 
dealing with future interest which may be destroyed by 
failure of condition. Such destructible future interest as 
a contingent remainder is subject to Rule Against Perpe
tuities unlike future interest which is destructible by act 
of the grantor or owner of present estate. 
Destructible trust. Trust susceptible of being terminat
ed or destroyed by happening of certain events or by 
operation of law. 
Desuetude / desw;)t(y)uwd/. Disuse; cessation or discon
tinuance of use, especially in the phrase, "to fall into 
desuetude." Applied to obsolete practices and statutes. 
De superoneratione pasturre / diy suwp;)rown;)rey
shiyowniy prestyUriy /. Old English writ of surcharge of 
pasture. A judicial writ which lay for him who was 
impleaded in the county court, for surcharging a com
mon with his cattle, in a case where he was formerly 
impleaded for it in the sam,e court, and the cause was 
removed into one of the courts at Westminster. 
De tabulis exhibendis / diy treby;)bs egz;)b€md;)s/. Of 
showing the tablets of a will. 
Detachiare / d;)treshyeriy /. To seize or take into custody 
another's goods or person by writ of attachment or 
course of law. 
Detail, v. To enumerate minutely, specify, particularize. 
Detail, n. An individual part, an item, a particular. 
DETECTOR 
One who belongs to the army, but is only detached, or 
set apart, for the time to some particular duty or ser
vice, and who is liable at any time to be recalled to his 
place in the ranks. 
Detain. To retain as the possession of personalty. To 
arrest, to check, to delay, to hinder, to hold, or keep in 
custody, to retard, to restrain from proceeding, to stay, 
to stop, to withhold. State v. King, 303 S.W.2d 930, 934. 
See Confinement; Custody. 
Detainer. The act (or the juridical fact) of withholding 
from a person lawfully entitled the possession of land or 
goods, or the restraint of a man's personal liberty 
against his will; detention. The wrongful keeping of a 
person's goods is called an "un lawful detainer" although 
the original taking may have been lawful. See also 
Forcible detainer; Unla wful detainer. 
Request filed by criminal justice agency with institu
tion in which prisoner is incarcerated, asking institution 
either to hold prisoner for agency or to notify agency 
when release of prisoner is imminent. Carchman v. 
Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516. 
Under Interstate Agreement on Detainers, a "detainer" 
is a notification filed with institution in which prisoner 
is serving a sentence, advising that he is wanted to face 
pending criminal charges in another jurisdiction. It 
must be a formal notice initiated by a prosecuting or law 
enforcement agency within member state where crimi
nal charges are pending that prisoner is wanted to face 
criminal charges and notice must be filed with institu
tion in which prisoner is serving a sentence. 
Detainment. Act of detaining. This term is used in 
policies of marine insurance, in the clause relating to 
"arrests, restraints, and detainments." The last two 
words are construed as equivalents, each meaning the 
effect of superior force operating directly on the vessel. 
De tallagio non concedendo / diy t;)leyjiyow non 
kons;)dendow /. Of not allowing talliage. The name 
given to the English statutes 25 and 34 Edw. I, restrict
ing the power of the king to grant talliage. 
Detection. A discovery or laying open of that which was 
hidden; investigation. 
Detective. One whose business it is to detect criminals 
or discover matters of secret and pernicious import for 
the protection of the pUblic. Such may be either a 
private detective engaged by an individual, or a member 
of a police force. 
Detector. Device which reveals the presence of electric 
waves or radioactivity or the presence of metal or indi
cates the presence of eavesdropping equipment ("bug"). 
See also Polygraph; Wiretapping. 
De tempore cujus contrarium memoria hominum 
non existit / diy temp;)riy kyuwj;)s k;)ntreriy;)m 
m;)moriy;) hom;)n;)m non ;)gzist;)t/. From time whereof 
the memory of man does not exist to the contrary. 
De tempore in tempus et ad omnia tempora / diy 
temp;)riy in temp;)s ed red omniy;) remp;)r;)/. From time 
to time, and at all times.

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DETENTIO 
De temps dont memorie ne court I d::l ton down 
mem::lriy n::l kur/. L. Fr. From time whereof memory 
runneth not; time out of memory of man. 
Detentio Id::ltensh(iy)ow/. In the civil law, that condi
tion of fact under which one can exercise his power over 
a corporeal thing at his pleasure, to the exclusion of all 
others. It forms the substance of possession in all its 
varieties. 
Detention. The act of keeping back, restraining or with
holding, either accidentally or by design, a person or 
thing. Detention occurs whenever police officer accosts 
individual and restrains his freedom to walk away, or 
approaches and questions individual or stops individual 
suspected of being personally involved in criminal activi
ty. People v. RICO, 97 C.A.3d 124, 158 Cal.Rptr. 573, 
576. See Confinement; Detain; Detainer; Imprisonment; 
Preventive detention. 
Detention hearing. Judicial or quasi judicial proceed
ing used to determine the propriety of detaining a per
son on bail or a juvenile in a shelter facility. P. F. M. v. 
District Court In and For County of Adams, 184 Colo. 
393, 520 P.2d 742. See Prelimina ry hearing. 
Detention in a reformatory. A punishment or measure 
of prevention where a juvenile offender is sentenced to 
be sent to a reformatory school, to be there detained for 
a certain period of time. 
Deter. To discourage or stop by fear. To stop or prevent 
from acting or proceeding by danger, difficulty, or other 
consideration which disheartens or countervails the mo
tive for the act. 
Deterioration. With respect to a commodity, consists of 
a constitutional hurt or impairment, involving some 
degeneration in the substance of the thing, such as that 
arising from decay, corrosion, or disintegration. With 
respect to values or prices, a decline. 
Determinable. Liable to come to an end upon the 
happening of a certain contingency. Susceptible of be
ing determined, found out, definitely decided upon, or 
settled. 
As to determinable Fee and Freehold, see those titles. 
Determinate. That which is ascertained; what is partic
ularly designated. 
Determinate hospitalization. Fixed period of hospital
ization pursuant to civil commitment. 
Determinate obligation. See Obligation. 
Determinate sentence. Sentence to confinement for a 
fixed period as specified by statute as contrasted with an 
indeterminate sentence, the duration of which is only 
partly governed by statute; the duration of the latter, in 
the main, being governed by behavior of prisoner. See 
also Sentence. 
Determination. The decision of a court or administra
tive agency. It implies an ending or finality of a contro
versy or suit. Piccone v. U. S., 186 Ct.CL 752, 407 F.2d 
866, 873. To settle or decide by choice of alternatives or 
possibilities. The ending or expiration of an estate or 
450 
interest in property, or of a right, power, or authority. 
The coming to an end in any way whatever. 
A "determination" is a "final judgment" for purposes 
of appeal when the trial court has completed its adjudi
cation of the rights of the parties in the action. Thomas 
Van Dyken Joint Venture v. Van Dyken, 90 Wis. 236, 
279 N.W.2d 459, 463. 
Also, an estimate. As respects an assessment, the 
term implies judgment and decision after weighing the 
facts. 
See also Determination; Decision; Decree; Finding; 
Judgment; Opinion. 
Determination letter. Document issued by a District 
Director of Internal Revenue Service, upon request of a 
taxpayer, giving an opinion as to the tax significance of 
a past or prospective transaction. Determination letters 
are most frequently used to clarify employee status, to 
determine whether a retirement or profit-sharing plan 
"qualifies" under the Internal Revenue Code, and to 
determine the tax exempt status of certain non-profit 
organizations. 
Determinative issues. The "determinative issues" 
which are to be embraced in a special verdict form are 
the ultimate issues which, when decided, will definitely 
settle the entire controversy between or among the 
parties and leave nothing for the court to do but enter 
judgment for party, or parties, in whose favor such 
determinative issues have been resolved by jury. Miller 
v. McAllister, 169 Ohio St. 487, 160 N.E.2d 231, 237. 
Determinism. A philosophy which teaches that human 
behavior is governed, in the main, by pre-existing condi
tions such as environment and family patterns and 
leaves no room for freedom of the will. 
Deterrent. Anything which impedes or has a tendency 
to prevent; e.g. punishment is a "deterrent" to crime. 
De theolonio I diy Oiy;)lowniyow I. A writ which lay for 
a person who was prevented from taking toll. 
Detinet I det::ln::ltl. Lat. He detains. In old English law, 
a species of action of debt, which lay for the specific 
recovery of goods, under a contract to deliver them. 
An action of debt is said to be in the detinet when it is 
alleged merely that the defendant withholds or unjustly 
detains from the plaintiff the thing or amount demand
ed. 
An action of replevin is said to be in the detinet when 
the defendant retains possession of the property until 
after judgment in the action. 
Detinue Idet::ln(y)uw/. A form of action which lies for 
the recovery, in specie, of personal chattels from one 
who acquired possession of them lawfully, but retains it 
without right, together with damages for the detention. 
Possessory action for recovery of personal chattels un
justly detained. Durst v. Durst, 232 Md. 311, 193 A.2d 
26. See also Replevin. 
The action of detinue is defined in the old books as a 
remedy founded upon the delivery of goods by the owner 
to another to keep, who afterwards refuses to redeliver

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451 
them to the bailor; and it is said that, to authorize the 
maintenance of the action, it is necessary that the 
defendant should have come lawfully into the possession 
of the chattel, either by delivery to him or by finding it. 
In fact, it was once understood to be the law that 
detinue does not lie where the property had been tor
tiously taken. But it is, upon principle, very unimpor
tant in what manner the defendant's possession com
menced, since the gist of the action is the wrongful 
detainer, and not the original taking. 
It is only incumbent upon the plaintiff to prove prop
erty in himself, and possession in the defendant. The 
action of detinue is proper in every case where the 
owner prefers recovering the specific property to dam
ages for its conversion, and no regard is had to the 
manner in which the defendant acquired the possession. 
Detinue of goods in frank marriage Idet:m(y)uw ;)v 
g6.dz in frreIJk mrer;)j/. A writ formerly available to a 
wife after a divorce, for the recovery of the goods given 
with her in marriage. 
Detinuit I d;)tinyuw;)t/. An action of replevin is said to 
be in the detinuit when the plaintiff acquires possession 
of the property claimed by means of the writ. The right 
to retain is, of course, subject in such case to the judg
ment of the court upon his title to the property claimed. 
Detour. A temporary turning aside from usual or regu
lar route, course or procedure or from a task or employ
ment. See also Deviation. 
A temporary road or a longer road in temporary use 
because of an obstruction or state of disrepair on regu
larly used road. 
Detournement. The misappropriation by a servant of 
funds the property of his master; fraudulent abstraction 
of documents; or "abus de confiance" which is fraudu
lently misusing or spending to anybody's prejudice 
goods, cash, bills, documents, or contracts handed over 
for a special object. See also Embezzlement. 
Detraction. The removal of property from one state to 
another upon a transfer of the title to it by will or 
inheritance. 
De transgressione I diy trrenzgreshiyowniy I. A writ of 
trespass. 
De transgressione, ad audiendum et terminandum 
Idiy trrenzgreshiyowniy, red odiyend;)m et 
t;)rm;)nrend;)m/. A writ or commission for the hearing 
and determining any outrage or misdemeanor. 
Detriment. Any loss or harm suffered in person or 
property; e.g., the consideration for a contract may 
consist not only in a payment or other thing of value 
given, but also in loss or "detriment" suffered by the 
promisee. In that connection, "detriment" means that 
the promisee has, in return for the promise, forborne 
some legal right which he otherwise would have been 
entitled to exercise, or that he has given up something 
which he had a right to keep, or done something which 
he had a right not to do. Irving v. Irwin, 133 Cal.App. 
374, 24 P.2d 215. See Consideration; Legal detriment. 
DE VENTRE INSPICIENDO 
Detrimental reliance. Response by promisee by way of 
act to offer of promisor in a unilateral contract. See 
also Promissory estoppel. 
Detriment to promisee. In contracts, consideration of
fered by promisee to promisor, especially in a unilateral 
contract which calls for an act from the promisee 
though the promisor may revoke his offer before the 
completion of the act. See also Consideration; Culpa in 
contrahendo. 
Detunicari I d;)tyuwn;)keray I. To discover or lay open to 
the world. 
De una parte I diy yuwn;) partiy I. A deed de una parte 
is one where only one party grants, gives, or binds 
himself to do a thing to another. It differs from deed 
inter partes (q.v.). 
Deuterogamy I d(y)uwt;)rog;)miy I. The act, or condition, 
of one who marries after the death of a former wife or 
husband. 
De uxore rapta et abducta I diy ;)ksoriy rrept;) ed 
;)bd�kt;)/. Old English writ which lay where a man's 
wife had been ravished and carried away. A species of 
writ of trespass. 3 Bl.Comm. 139. 
Devadiatus, or divadiatus Id;)vrediyeyt;)sl. In old Eng
lish law, an offender without sureties or pledges. 
Devaluation. Reduction in value of a currency or of a 
standard monetary unit. See also Revaluation. 
Devastation. Wasteful use of the property of a deceased 
person, as for extravagant funeral or other unnecessary 
expenses. 2 Bl.Comm. 508. 
Devastaverunt I d;)vrest;)vir;)nt/. They have wasted. A 
term applied in old English law to waste by executors 
and administrators, and to the process issued against 
them therefor. See Devastavit. 
Devastavit I dev;)steyv;)t/. Lat. He has wasted. The 
act of an executor or administrator in wasting the goods 
of the deceased; mismanagement of the estate by which 
a loss occurs. A breach of trust or misappropriation of 
assets held in a fiduciary character; any violation or 
neglect of duty by an executor or administrator, involv
ing loss to the decedent's estate, which makes him 
personally responsible to heirs, creditors, or legatees. 
De vasto Idiy vrestow/. Writ of waste. Old English writ 
which might be brought by him who had the immediate 
estate of inheritance in reversion or remainder, against 
the tenant for life, in dower, by curtesy, or for years, 
where the latter had committed waste in lands; calling 
upon the tenant to appear and show cause why he 
committed waste and destruction in the place named, to 
the disinherison (ad exhreredationem) of the plaintiff. 3 
Bl.Comm. 227, 228. Abolished by St. 3 & 4 Wm. IV, c. 
27. 
De ventre inspiciendo I diy ventriy ;)nspis(h)iyendow I. 
A common law writ to inspect the body, where a woman 
feigned to be pregnant, to see whether she was with 
child. It lay for the heir presumptive to examine a 
widow suspected to be feigning pregnancy in order to

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DE VENTRE INSPICIENDO 
enable a supposititious heir to obtain the estate. 1 
Bl.Comm. 456. It lay also where a woman sentenced to 
death pleaded pregnancy. 4 Bl.Comm. 395. This writ 
was also formerly recognized in America. See Matrons, 
jury of. 
De verbo in verbum / diy v;}rbow in v;}rb;)m/. Word for 
word. Literally, from word to word. 
Devest. To deprive or dispossess of a title or right (e.g. of 
an estate). 
Deviation. Departure from established or usual conduct 
or ideology. A change made in the progress of a work 
from the original terms or design or method agreed 
upon. Ward v. City of Monrovia, 16 Cal.2d 815, 108 P.2d 
425, 429. A voluntary departure by railroad carrier, 
without necessity or reasonable cause, from the regular 
or usual route or from a stipulated or customary mode 
of carriage. Ward v. Gulf, M. & N. R. Co., 23 Tenn.App. 
533, 134 S.W.2d 917, 924. A wandering from the way, 
variation from the common way, from an established 
rule, standard, or position. S. J. Groves & Sons Co. v. 
West Virginia Turnpike Commission, D.C.W.Va., 164 
F.Supp. 816, 821. 
In employment, departure of employee from his 
course of employment and duties to employer for pur
poses entirely personal. Such term comes into use and 
is applied in workers' compensation cases and in actions 
against employer by third persons for injuries caused by 
employee. See also Scope of employment. 
In insurance, term refers to variance from the risks 
insured against, as described in the policy, without ne
cessity or just cause, after the risk has begun. Such 
deviation may void the liability or responsibility of the 
insurer. 
In shipping, a voluntary, unnecessary or unexcused 
departure without reasonable cause from the course of 
the voyage insured, or an unreasonable delay in pursu
ing the voyage, or the commencement of an entirely 
different voyage. The Willdomino v. Citro Chemical Co. 
of America, 272 U.S. 718, 47 S.Ct. 261, 262, 71 L.Ed. 491. 
Deviation doctrine. In wills and trusts, principle which 
permits variation from terms of trust where circum
stances are such that purposes of trust would otherwise 
be defeated. Connecticut Bank & Trust Co. v. Johnson 
Memorial Hospital, 30 Conn.Sup. 1, 294 A.2d 586, 591. 
In agency, principle which permits agent to vary activity 
slightly from scope of master's permission. Johnson v. 
Maryland Casualty Co., C.C.A.Wis., 125 F.2d 337. 
Deviation well survey. Examination permitted under 
Fed.Rules Civ.Proc., Rule 34 to determine whether a 
well is bottomed under another person's land. Williams 
v. Continental Oil Co., C.A.Okl., 215 F.2d 4. 
Device. An invention or contrivance; any result of 
design, as in the phrase "gambling device," which means 
a machine or contrivance of any kind for the playing of 
an unlawful game of chance or hazard. A plan or 
project; a scheme to trick or deceive; a stratagem or 
artifice, as in the laws relating to fraud and cheating. 
Also, an emblem, pictorial representation, or distin-
452 
guishing mark or sign of any kind; as in the laws 
prohibiting the marking of ballots used in public elec
tions with "any device." 
In patent law, a plan or contrivance, or an applica
tion, adjustment, shaping, or combination of materials 
or members, for the purpose of accomplishing a particu
lar result or serving a particular use, chiefly by mechan
ical means and usually simple in character or not highly 
complex, but involving the exercise of the inventive 
faculty. 
That which is devised, or formed by design; a contri
vance; an invention. Ernst and Ernst v. Hochfelder, 
425 U.S. 185, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668. 
De vicineto / diy v;)sin;)tow / . From the neighborhood, or 
vicinage. 3 Bl.Comm. 360. A term applied to a jury. 
De vi laica amovenda / diy viiy ley;)k;) eym;)vend;)/. 
Writ of (or for) removing lay force. A writ which lay 
where two parsons contended for a church, and one of 
them entered into it with a great number of laymen, and 
held out the other vi et armis; then he that was holden 
out had this writ directed to the sheriff, that he remove 
the force. 
Devilling / dev;)lil) /. A term used in London of a barris
ter recently admitted to the bar, who assists a junior 
barrister in his professional work, without appearing in 
any way in the matter. 
Devil on the neck. An instrument of torture, formerly 
used to extort confessions, etc. It was made of several 
irons, which were fastened to the neck and legs, and 
wrenched together so as to break the back. 
Devisable. Capable of being devised. 
Devisavit vel non / dev;)zeyv;)t vel non/. The name of 
an issue sent out of a court of chancery, or one which 
exercises chancery jurisdiction, to a court of law, to try 
the validity of a paper asserted and denied to be a will, 
to ascertain whether or not the testator did devise, or 
whether or not that paper was his will. 
Devise / d;)viiyz/. A testamentary disposition of land or 
realty; a gift of real property by the last will and 
testament of the donor. When used as a noun, means a 
testamentary disposition of real or personal property 
and when used as a verb, means to dispose of real or 
personal property by will. Uniform Probate Code, 
§ 1-201(7). See also Bequest; Executory devise; Legacy. 
To contrive; plan; scheme; invent; prepare. 
Classification 
Devises are contingent or vested; that is, after the 
death of the testator. Contingent, when the vesting of 
any estate in the devisee is made to depend upon some 
future event, in which case, if the event never occur, or 
until it does occur, no estate vests under the devise. 
But, when the future event is referred to merely to 
determine the time at which the devisee shall come into 
the use of the estate, this does not hinder the vesting of 
the estate at the death of the testator. Devises are also 
classed as general or specific. A general devise is one

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J 
453 
which passes lands of the testator without a particular 
enumeration or description of them; as, a devise of "all 
my lands" or "all my other lands." In a more restricted 
sense, a general devise is one which grants a parcel of 
land without the addition of any words to show how 
great an estate is meant to be given, or without words 
indicating either a grant in perpetuity or a grant for a 
limited term; in this case it is construed as granting a 
life estate. Specific devises are devises of lands particu
larly specified in the terms of the devise, as opposed to 
general and residuary devises of land, in which the local 
or other particular descriptions are not expressed. For 
example, "I devise my Hendon Hall estate" is a specific 
devise; but "I devise all my lands," or, "all my other 
lands," is a general devise or a residuary devise. But all 
devises are (in effect) specific, even residuary devises 
being so. At common law, all devises of land were 
deemed to be "specific" whether the land was identified 
in the devise or passed under the residuary clause. A 
conditional devise is one which depends upon the occur
rence of some uncertain event, by which it is either to 
take effect or be defeated. An executory devise of lands 
is such a disposition of them by will that thereby no 
estate vests at the death of the devisor, but only on some 
future contingency. It differs from a remainder in three 
very material points: (1) That it needs not any particu
lar estate to support it; (2) that by it a fee-simple or 
other less estate may be limited after a fee-simple; (3) 
that by this means a remainder may be limited of a 
chattel interest, after a particular estate for life created 
in the same. 2 Bl.Comm. 172. In a stricter sense, a 
limitation by will of a future contingent interest in 
lands, contrary to the rules of the common law. A 
limitation by will of a future estate or interest in land, 
which cannot, consistently with the rules of law, take 
effect as a remainder. A future interest taking effect as 
a fee in derogation of a defeasible fee devised or con
veyed to the first taker, when created by will, is an 
"executory devise," and, when created by deed, is a 
"conditional limitation," and in either event is given 
effect as a shifting or springing use. 
The estates known as a contingent remainder and an 
"executory devise" are both interests or estates in land 
to take effect in the future and depend upon a future 
contingency; an "executory devise" being an interest 
which the rules of law do not permit to be created in 
conveyances, but allow in case of wills. It follows a fee 
estate created by a will. A contingent remainder may 
be created by will or other conveyance and must follow a 
particular or temporary estate created by the same 
instrument of conveyance. 
Lapsed devise. A devise which fails, or takes no effect, 
in consequence of the death of the devisee before the 
testator; the subject-matter of it being considered as not 
disposed of by the will. 
Residuary devise. A devise of all the residue of the 
testator's real property, that is, all that remains over 
and above the other devises. See also general definition 
above. 
DIAGNOSIS 
Devisee / d:wayziy /. The person to whom lands or other 
real property are devised or given by will. In the case of 
a devise to an existing trust or trustee, or to a trustee on 
trust described by will, the trust or trustee is the devisee 
and the beneficiaries are not devisees. Uniform Probate 
Code, § 1-201(8). 
Residuary devisee. The person named in a will, who is 
to take all the real property remaining over and above 
the other devises. 
Devisor / d�vayz�r / . A giver of lands or real estate by 
will; the maker of a will of lands; a testator. 
Devoir /d�v6y(�)r/d�vwar/. Fr. Duty. It is used in the 
statute of 2 Rich. II, c. 3, in the sense of duties or 
customs. 
Devolution. The transfer or transition from one person 
to another of a right, liability, title, estate, or office. 
Transference of property from one person to another. 
Hermann v. Crossen, Ohio App., 160 N.E.2d 404, 408. 
See also Descent. 
In ecclesiastical law, the forfeiture of a right or power 
(as the right of presentation to a living) in consequence 
of its non-user by the person holding it, or of some other 
act or omission on his part, and its resulting transfer to 
the person next entitled. 
Devolve /d�v6Iv/. To pass or be transferred from one 
person to another; to fall on, or accrue to, one person as 
the successor of another; as a title, right, office, liability. 
The term is said to be peculiarly appropriate to the 
passing of an estate from a per�;on dying to a person 
living. See Descent; Devolution. 
Devy /d�vay/. L. Fr. Dies; deceases. 
De warrantia chartre /diy wohrrensh(iy)� kartiy/. Writ 
of warranty of charter. A writ which lay for him who 
was enfeoffed, with clause of warranty [in the charter of 
feoffment], and was afterwards impleaded in an assise or 
other action, in which he could not vouch or call to 
warranty; in which case he might have this writ against 
the feoffor, or his heir, to compel him to warrant the 
land unto him. Abolished by St. 3 & 4 Wm. IV, c. 27. 
De warrantia diei /diy worrensh(iy)� dayiyay/. A writ 
that lay where a man had a day in any action to appear 
in proper person, and the king at that day, or before, 
employed him in some service, so that he could not 
appear at the day in court. It was directed to the 
justices, that they should not record him to be in default 
for his not appearing. 
Dextrarius / dekstreriy�s/. One at the right hand of 
another. 
Dextras dare / dekstr�s deriy / . To shake hands in token 
of friendship; or to give up oneself to the power of 
another person. 
Diaconate / diyrek�n�t/ dayo / . The office of a deacon. 
Diaconus / diyrek�n�s/ . A deacon. 
Diagnosis / day�gn6ws�s/. A medical term, meaning the 
discovery of the source of a patient's illness or the 
determination of the nature of his disease from a study

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DIAGNOSIS 
of its symptoms. The art or act of recogmzmg the 
presence of disease from its symptoms, and deciding as 
to its character, also the decision reached, for determi
nation of type or condition through case or specimen 
study or conclusion arrived at through critical percep
tion or scrutiny. A "clinical diagnosis" is one made 
from a study of the symptoms only, and a "physical 
diagnosis" is one made by means of physical measure, 
such as palpation and inspection. 
Diagnostic tests. Tests to determine and identify the 
nature of a disease; including laboratory and explorato
ry tests. 
Dialectics I dayalektaks/. That branch of logic which 
teaches the rules and modes of reasoning. 
Diallage I dayrelajiy I. A rhetorical figure in which argu
ments are placed in various points of view, and then 
turned to one point. 
Dialogus de scaccario I dayrelagas diy skakeriyow I. In 
old English law, dialogue of or about the exchequer. An 
ancient treatise on the court of exchequer, attributed by 
some to Gervase of Tilbury, by others to Richard Fitz 
Nigel, bishop of London in the reign of Richard I. It is 
quoted by Lord Coke under the name of Ockham. 
Dianatic I dayanretakl . A logical reasoning in a progres
sive manner, proceeding from one subject to another. 
Diarium I dayeriyam/. Daily food, or as much as will 
suffice for the day. 
Diatim I dayeytam/. In old records, daily; every day; 
from day to day. 
Dica Idayka/. In old English law, a tally for accounts, 
by number of cuts (taillees), marks, or notches. See 
Tallia; Tally. 
Dicast I daykrestl. An officer in ancient Greece answer
ing in some respects to our juryman, but combining, on 
trials had before them, the functions of both judge and 
jury. The dicasts sat together in numbers varying, 
according to the importance of the case, from one to five 
hundred. 
Di colonna Idiy kolona/. In maritime law, the contract 
which takes place between the owner of a ship, the 
captain, and the mariners, who agree that the voyage 
shall be for the benefit of all. The term is used in the 
Italian law. 
Dicta Idikta/. Opinions of a judge which do not embody 
the resolution or determination of the specific case be
fore the court. Expressions in court's opinion which go 
beyond the facts before court and therefore are individu
al views of author of opinion and not binding in subse
quent cases as legal precedent. State ex reI. Foster v. 
Naftalin, 246 Minn. 181, 74 N.W.2d 249. See also Dic
tum. 
Dictate. To order or instruct what is to be said or 
written. To pronounce, word by word, what is meant to 
be written by another. See Dictation. 
Dictation. In Louisiana, this term is used in a technical 
sense, and means to pronounce orally what is destined 
454 
to be written at the same time by another. It is used in 
reference to nuncupative wills. The dictation of a will 
refers to the substance, and not the style, and it is 
sufficient if the will, as written, conveys the identity of 
thought expressed by the testator, though not the identi
ty of words used by him. 
Dictator. One in whom supreme authority in any line is 
invested, one who rules autocratically, and one who 
prescribes for others authoritatively, and offer oppres
sively. Houston Printing Co. v. Hunter, Tex.Civ.App., 
105 S.W.2d 312, 317. 
In Roman law, a magistrate invested with unlimited 
power, and created in times of national distress and 
peril. Among the Romans, he continued in office for six 
months only, and had unlimited power and authority 
over both the property and lives of the citizens. 
Dictores. Arbitrators. 
Dictum I diktam/. A statement, remark, or observation. 
Gratis dictum; a gratuitous or voluntary representation; 
one which a party is not bound to make. Simplex 
dictum; a mere assertion; an assertion without proof. 
The word is generally used as an abbreviated form of 
obiter dictum, "a remark by the way;" that is, an 
observation or remark made by a judge in pronouncing 
an opinion upon a cause, concerning some rule, princi
ple, or application of law, or the solution of a question 
suggested by the case at bar, but not necessarily in
volved in the case or essential to its determination; any 
statement of the law enunciated by the court merely by 
way of illustration, argument, analogy, or suggestion. 
Statements and comments in an opinion concerning 
some rule of law or legal proposition not necessarily 
involved nor essential to determination of the case in 
hand are obiter dicta, and lack the force of an adjudica
tion. Wheeler v. Wilkin, 98 Colo. 568, 58 P.2d 1223, 
1226. Dicta are opinions of a judge which do not em
body the resolution or determination of the court, and 
made without argument, or full consideration of the 
point, are not the professed deliberate determinations of 
the judge himself. 
In old English law, dictum meant an arbitrament, or 
the award of arbitrators. 
In French law, the report of a judgment made by one 
of the judges who has given it. 
Dictum de Kenilworth. The edict or declaration of 
Kenilworth. An edict or award between King Henry 
III, and all the barons and others who had been in arms 
against him; and so called because it was made at 
Kenilworth Castle in Warwickshire, in the fifty-first 
year of his reign, containing a composition of five years' 
rent for the lands and estates of those who had forfeited 
them in that rebellion. 
Die, v. To expire; cease to live; the equivalent to the 
phrase "lose his life." See also Death. 
Diei dictio Idayiyay diksh(iy)ow/. Lat. In Roman law, 
this name was given to a notice promulgated by a 
magistrate of his intention to present an impeachment 
against a citizen before the people, specifying the day

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455 
appointed, the name of the accused, and the crime 
charged. 
Diem clausit extremum I day�m kloz�t �kstriym�m/. 
(Lat. He has closed his last day, i.e. died.) A writ which 
formerly lay on the death of a tenant in capite, to 
ascertain the lands of which he died seised, and reclaim 
them into the king's hands. It was directed to the 
king's escheators. 
A writ awarded out of the exchequer after the death 
of a crown debtor, the sheriff being commanded by it to 
inquire by a jury when and where the crown debtor 
died, and what chattels, debts, and lands he had at the 
time of his decease, and to take and seize them into the 
crown's hands. 
Dies I dayiyz/. Lat. A day; days. Days for appearance 
in court. Provisions or maintenance for a day. The 
king's rents were anciently reserved by so many days' 
provisions. 
Dies amoris Idayiz �mor�s/. A day of favor. The name 
given to the appearance day of the term on the fourth 
day, or quarto die post. It was the day given by the 
favor and indulgence of the court to the defendant for 
his appearance, when all parties appeared in court, and 
had their appearance recorded by the proper officer. 
Dies a quo I dayiyz ey kwow I. (The day from which.) In 
the civil law. The day from which a transaction begins; 
the commencement of it; the conclusion being the dies 
ad quem. 
Dies cedit I dayiyz siyd�t/. The day begins; dies venit, 
the day has come. Two expressions in Roman law 
which signify the vesting or fixing of an interest, and 
the interest becoming a present one. 
Dies communes in banco I dayiyz k�myuwniyz in 
breIJkow I. Regular days for appearance in court; called, 
also "common return-days." 
Dies datus Idayiyz deyt�s/. A day given or allowed (to a 
defendant in an action); amounting to a continuance. 
But the name was appropriate only to a continuance 
before a declaration filed; if afterwards allowed, it was 
called an "imparlance." 
Dies datus in banco I dayiyz deyt�s in breIJkow I. A day 
given in the bench (or court of common pleas). A day 
given in bank, as distinguished from a day at nisi prius. 
Dies datus partibus I dayiyz deyt�s part�b�s /. A day 
given to the parties to an action; an adjournment or 
continuance. 
Dies datus prece partium I dayiyz deyt�s priysiy 
parsh�ml . A day given on the prayer of the parties. 
Dies dominicus I dayiyz d�min�k�s /. The Lord's day; 
Sunday. 
Dies dominicus non est juridicus I dayiyz d�min�k�s 
non est j�rid�k�s /. Sunday is not a court day, or day for 
judicial proceedings, or legal purposes. 
Dies excrescens I dayiyz �kskriys�nz/. In old English 
law, the added or increasing day in leap year. 
DIES UTILES 
Dies fasti I dayiyz frestay I. In Roman law, days on 
which the courts were open, and justice could be legally 
administered; days on which it was lawful for the 
prretor to pronounce {farO the three words "do ", "dico ': 
"addico". Hence called "triverbial days," answering to 
the dies juridici of the English law. 
Dies feriati Idayiyz f�riyeytay/. In the civil law, holi
days. 
Dies gratire I dayiyz greyshiyiy I. In old English practice, 
a day of grace, courtesy, or favor. The quarto die post 
was sometimes so called. 
Dies inceptus pro completo habetur I dayiyz �nsept�s 
prow k�mpliytow h�biyt�r/. A day begun is held as 
complete. 
Dies incertus pro conditione habetur I dayiyz �ns�rt�s 
prow k�ndishiyowniy h�biyt�r I. An uncertain day is 
held as a condition. 
Dies intercisi Idayiyz int�rsayzay/. In Roman law, di
vided days; days on which the courts were open for a 
part of the day. 
Dies juridicus I dayiyz j�rid�k�s /. A lawful day for the 
transaction of judicial or court business; a day on which 
the courts are or may be open for the transaction of 
business. 
Dies legitimus I dayiyz l�jit�m�s/. In the civil and old 
English law, a lawful or law day; a term day; a day of 
appearance. 
Dies marchire Idayiyz markiyiy/. In old English law, 
the day of meeting of English and Scotch, which was 
annually held on the marches or borders to adjust their 
differences and preserve peace. 
Dies nefasti I dayiyz niyfrestay I. In Roman law, days on 
which the courts were closed, and it was unlawful to 
administer justice; answering to the dies non juridici of 
the English law. 
Dies non I dayiyz non/. An abbreviation of Dies non 
juridicus (q.v .). 
Dies non juridicus I dayiyz non j�rid�k�s /. A day not 
juridical; not a court day. A day on which courts are 
not open for business, such as Sundays and some holi
days. 
Dies pacis Idayiyz peys�s/. (Days of peace.) The year 
was formerly divided into the days of the peace of the 
church and the days of the peace of the king, including 
in the two divisions all the days of the year. 
Dies solaris Idayiyz s�ler�s /. In old English law, a solar 
day, as distinguished from what was called "dies lunar
is" (a lunar day); both composing an artificial day. See 
Day. 
Dies solis Idayiyz sowl�s /. In the civil and old English 
law, Sunday (literally, the day of the sun). 
Dies utiles Idayiyz yuwt�liyz/. Juridical days; useful or 
available days. A term of the Roman law, used to 
designate those especial days occurring within the limits

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DIES UTILES 
of a prescribed period of time upon which it was lawful, 
or possible, to do a specific act. 
Diet. A general legislative assembly is sometimes so 
called on the continent of Europe. 
Dieta /dayiyt�/. A day's journey; a day's work; a day's 
expenses. 
Di. et fi. /day �t fay/(d�lektow et f�diylay)/. L. Lat. In 
old writs, an abbreviation of dilecto et fideli (to his 
beloved and faithful). 
Dieu et mon droit /dyuw ey mon dr(w)6/. Fr. God and 
my right. The motto of the royal arms of England, first 
assumed by Richard I. 
Dieu son acte /dyuw son aktl. L. Fr. In old law, God 
his act; God's act. An event beyond human foresight or 
controL See Act of God. 
Die without issue. See Dying without issue. 
Diffacere / d�feys�riy / . To destroy; to disfigure or de
face. 
Difference. In an agreement for submission to arbitra
tion, a disagreement or dispute. As respects contract 
specifications or material described therein, a state of 
being unlike. Disagreement in opinion, interpretation 
or conclusion. Instance or cause of disagreement. See 
also Disagreement. 
Difforciare / d�fors(h)(i)yeriy / . In old English law, to 
deny, or keep from one. Difforciare rectum, to deny 
justice to any one, after having been required to do it. 
Diffuse. To spread widely; scatter; disperse. 
Digama, or digamy / dig�miy /. Second marriage; mar
riage to a second wife after the death of the first, as 
"bigamy," in law, is having two wives at once. Original
ly, a man who married a widow, or married again after 
the death of his wife, was said to be guilty of bigamy. 
Digest. A collection or compilation, embodying the chief 
matter of numerous books, articles, court decisions, etc. 
in one, disposed under proper heads or titles, and usual
ly by an alphabetical arrangement, for facility in refer
ence. 
An index to reported cases, providing brief statements 
of court holdings or facts of cases, which is arranged by 
subject and subdivided by jurisdiction and courts. See 
American Digest System; Special digests, below. 
As a legal term, "digest" is to be distinguished from 
"abridgment." The latter is a summary or epitome of 
the contents of a single work, in which, as a rule, the 
original order or sequence of parts is preserved, and in 
which the principal labor of the compiler is in the 
matter of consolidation. A digest is wider in its scope; 
is made up of quotations or paraphrased passages, and 
has its own system of classification and arrangement. 
An "index" merely points out the places where particu
lar matters may be found, without purporting to give 
such matters in extenso. A "treatise" or "commentary" 
is not a compilation, but an original composition, though 
it may include quotations and excerpts. 
456 
A reference to the "Digest," or "Dig.," is often under
stood to designate the Digest (or Pandects) of the Justini
an collection; that being the digest par eminence, and 
the authoritative compilation of the Roman law. 
American Digest System. The American Digest System 
is a subject classification scheme whereby digests of 
decisions that were reported chronologically in the vari
ous units of the National Reporter System are rear
ranged by subject, bringing together all cases on a 
similar point of law. The system divides the subject of 
law into seven main classes. Each class is then divided 
into sub-classes and then each sub-class into topics. 
There are over 400 digest topics, each of which corre
sponds to a legal concept. The system consists of a 
Century Digest (1658-1896), eight Decennial Digests 
(1897-1905, 1906-1915, 1916-1925, 1926-1935, 1936-
1945, 1946-1955, 1956-1966, and 1966-1976), (the Ninth 
Decennial Digest, Part 1 (1976-1981), the Ninth Decen
nial Digest, Part 2 (1981- 1986), and the General Digest, 
7th Series (1986 to date). The American Digest System 
is the master index to all reported case law. See also 
Key number system; and Special digests, below. 
Special digests. Decisions included in the American 
Digest System are as well included in special digests 
covering the federal courts and also in regional, state, 
and topical digests. The "U.S. Supreme Court Digest" 
covers decisions of the U.S. Supreme Court. The Feder
al Digest (cases decided prior to 1939), Modern Federal 
Practice Digest (1939-1961), West's Federal Practice Di
gest 2d (1961-1975) and West's Federal Practice Digest 
3rd and 4th (1975 to date) cover Federal court cases. 
Specialty federal digests include the Bankruptcy Digest, 
the Claims Court Digest, and West's Military Justice 
Digest. State court decisions from geographical areas 
are also published in "Regional Digests" (Atlantic, 
Northwestern, Pacific, Southeastern, Southern Digests; 
several of these are in 1st and 2d series). Also, individu
al "State Digests" are published for most states. Other 
specialty digests include West's Education Law Digest 
and the Merit Systems Protection Board Digest. 
Digesta /d�jest� /. Digests. One of the titles of the 
Pandects of Justinian. 
Digests. The ordinary name of the Pandects of Justini
an, which are now usually cited by the abbreviation 
"Dig." instead of "Ff .," as formerly. Sometimes called 
"Digest," in the singular. See also Digest. 
Dignitary. In canon law, a person holding an ecclesias
tical benefice or dignity, which gave him some pre-emi
nence above mere priests and canons. To this class 
exclusively belonged all bishops, deans, archdeacons, 
etc.; but it now includes all the prebendaries and canons 
of the church. 
Dignity. In English law, an honor; a title, station, or 
distinction of honor. Dignities are a species of incorpo
real hereditaments, in which a person may have a 
property or estate. 2 BLComm. 37; 1 BLComm. 396. 
Dijudication / dayjuwd�keysh�n/ . Judicial decision or 
determination.

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457 
Dilacion Idiylasy6wn/. In Spanish law, a space of time 
granted to a party to a suit in which to answer a 
demand or produce evidence of a disputed fact. 
Dilapidation. A species of ecclesiastical waste which 
occurs whenever the incumbent suffers any edifices of 
his ecclesiastical living to go to ruin or decay. It is 
either voluntary, by pulling down, or permissive, by 
suffering the church, parsonage-houses, and other build
ings thereunto belonging, to decay. And the remedy for 
either lies either in the spiritual court, where the canon 
law prevails, or in the courts of common law. It is also 
held to be good cause of deprivation if the bishop, 
parson, or other ecclesiastical person dilapidates build
ings or cuts down timber growing on the patrimony of 
the church, unless for necessary repairs; and that a writ 
of prohibition will also lie against him in the common
law courts. 3 BLComm. 91. 
The term is also used, in the law of landlord and 
tenant, to signify the neglect of necessary repairs to a 
building, or suffering it to fall into a state of decay, or 
the pulling down of the building or any part of it. 
Dilationes in lege sunt odiosre I d�leyshiy6wniyz in 
liyjiy s:lnt owdiy6wsiy I. Delays in law are odious. 
Dilatory Idil�t(o)riy/. Tending or intended to cause de
lay or to gain time or to put off a decision. 
Dilatory defense. In chancery practice, one the object 
of which is to dismiss, suspend, or obstruct the suit, 
without touching the merits, until the impediment or 
obstacle insisted on shall be removed. 3 Bl.Comm. 301, 
302. See also Dilatory pleas. 
Dilatory exceptions. Such as do not tend to defeat the 
action, but only to retard its progress. 
Dilatory pleas. A class of defenses at common law, 
founded on some matter of fact not connected with the 
merits of the case, but such as might exist without 
impeaching the right of action itself. They were either 
pleas to the jurisdiction, showing that, by reason of 
some matter therein stated, the case was not within the 
jurisdiction of the court; or pleas in suspension, showing 
some matter of temporary incapacity to proceed with 
the suit; or pleas in abatement , showing some matter for 
abatement or quashing the declaration. Davis v. Thie
de, 138 Ind.App. 537, 203 N.E.2d 835. Under modern 
civil procedure such defenses are raised by motion or 
answer. See Plea (Plea in abatement ). 
Diligence. Vigilant activity; attentiveness; or care, of 
which there are infinite shades, from the slightest mo
mentary thought to the most vigilant anxiety. Atten
tive and persistent in doing a thing; steadily applied; 
active; sedulous; laborious; unremitting; untiring. 
National Steel & Shipbuilding Co. v. U. S., 190 Ct.CL 
247, 419 F.2d 863, 875. The attention and care required 
of a person in a given situation and is the opposite of 
negligence. Turnquist v. Kjelbak, N.D., 77 N.W.2d 854, 
861. 
The civil law is in perfect conformity with the com
mon law. It lays down three degrees of diligence,-ordi-
DI:hIGENT INQUIRY 
nary (diligentia); extraordinary (exactissima diligentia); 
slight (levissima diligentia). 
There may be a high degree of diligence, a common 
degree of diligence, and a slight degree of diligence, with 
their corresponding degrees of negligence. Common or 
ordinary diligence is that degree of diligence which men 
in general exercise in respect to their own concerns; 
high or great diligence is of course extraordinary dil
igence, or that which very prudent persons take of their 
own concerns; and low or slight diligence is that which 
persons of less than common prudence, or indeed of any 
prudence at all, take of their own concerns. 
See also Care. 
Due diligence. Such a measure of prudence, activity, or 
assiduity, as is properly to be expected from, and ordi
narily exercised by, a reasonable and prudent man un
der the particular circumstances; not measured by any 
absolute standard, but depending on the relative facts of 
the special case. 
Extraordinary diligence. That extreme measure of care 
and caution which persons of unusual prudence and 
circumspection use for securing and preserving their 
own property or rights. 
Great diligence. Such a measure of care, prudence, and 
assiduity as persons of unusual prudence and discretion 
exercise in regard to any and all of their own affairs, or 
such as persons of ordinary prudence exercise in regard 
to very important affairs of their own. 
High diligence. The same as great diligence. 
Low diligence. The same as slight diligence. 
Necessary diligence. That degree of diligence which a 
person placed in a particular situation must exercise in 
order to entitle him to the protection of the law in 
respect to rights or claims growing out of that situation, 
or to avoid being left without redress on account of his 
own culpable carelessness or negligence. 
Ordinary diligence is that degree of care which men of 
common prudence generally exercise in their affairs, in 
the country and the age in which they live. 
Reasonable diligence. A fair, proper and due degree of 
care and activity, measured with reference to the partic
ular circumstances; such diligence, care, or attention as 
might be expected from a man of ordinary prudence and 
activity. 
Special diligence. The measure of diligence and skill 
exercised by a good business man in his particular 
specialty, which must be commensurate with the duty to 
be performed and the individual circumstances of the 
case; not merely the diligence of an ordinary person or 
non-specialist. 
Diligent. Attentive and persistent in doing a thing; 
steadily applied; active; sedulous; laborious; unremit
ting; untiring. 
Diligent inquiry. Such inquiry as a diligent man, in
tent upon ascertaining a fact, would ordinarily make, 
and it is inquiry made with diligence and good faith to

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DILIGENT INQUIRY 
ascertain the truth, and must be an inquiry as full as 
the circumstances of the situation will permit. Lie
pelt v. Baird, 17 Il1.2d 428, 161 N.E.2d 854, 857. 
Diligiatus / d;}lijiyeyt;}s/ . (Fr. De lege ejectus, Lat.) 
Outlawed. 
Dillon's Rule. Rule used in construction of statutes 
delegating authority to local government: " . . [AJ 
municipal corporation possesses and can exercise the 
following powers and no others: First, those granted in 
express words; second, those necessarily implied or nec
essarily incident to the powers expressly granted; third, 
those absolutely essential to the declared objects and 
purposes of the corporation-not simply convenient, but 
indispensable ." Merriam v. Moody's Execu
tors, 25 Iowa 163, 170 (1868). 
Dilution. In corporate law, refers to the reduction in 
value of outstanding shares resulting from the issuance 
of additional shares. The dilution may be of voting 
power if shares are not issued proportionately to the 
holdings of existing shareholders, or it may be financial, 
if shares are issued disproportionately and the price at 
which the new shares are issued is less than the market 
or book value of the outstanding shares prior to the 
issuance of the new shares. 
Dilution doctrine. A trademark doctrine protecting 
strong marks against use by other parties even where 
there is no competition or likelihood of confusion. Con
cept is most applicable where subsequent user used the 
trademark of prior user for a product so dissimilar from 
the product of the prior user and there is no likelihood 
of confusion of the products or sources, but where the 
use of the trademark by the subsequent user will lessen 
uniqueness of the prior user's mark with the possible 
future result that a strong mark may become a weak 
mark. Holiday Inns, Inc. v. Holiday Out in America, 
C.A.Fla., 481 F.2d 445, 450. 
Dimidia, dimidium, dimidius / d;}midiy;}(m)/ d;}miy
diy;}(s)/. Half; a half; the half. 
Dimidietas / dim;}day;}tres/ . The moiety or half of a 
thing. 
Diminished capacity doctrine. This doctrine recog
nizes that although an accused was not suffering from a 
mental disease or defect when the offense was commit
ted sufficient to exonerate him from all criminal respon
sibility, his mental capacity may have been diminished 
by intoxication, trauma, or mental disease so that he did 
not possess the specific mental state or intent essential 
to the particular offense charged. State v. Correra, R.I., 
430 A.2d 1251, 1253. See also Diminished responsibility 
doctrine. 
Diminished responsibility doctrine /d;}min;}sht r;}spon
s�bil�tiy d6ktr�n/. Term used to refer to lack of capaci
ty to achieve state of mind requisite for commission of 
crime. McGuire v. Superior Court for Los Angeles 
County, 274 Cal.App. 583, 79 Cal.Rptr. 155, 161. The 
concept of diminished responsibility, also known as par
tial insanity, permits the trier of fact to regard the 
impaired mental state of the defendant in mitigation of 
458 
the punishment or degree of the offense even though the 
impairment does not qualify as insanity under the pre
vailing test. A number of courts have adopted the 
concept. In some jurisdictions, mental retardation and 
extremely low intelligence will, if proved, serve to re
duce first degree murder to manslaughter. See also 
Ins anity. 
Diminutio /dim�n(y)uwsh(iy)ow/. In the civil law, dimi
nution; a taking away; loss or deprivation. Diminutio 
capitis, loss of status or condition. See Capitis diminutio. 
Diminution /dim�n(y)uwsh�n/. Incompleteness. Act or 
process of diminishing, taking away, or lessening. A 
word signifying that the record sent up from an inferior 
to a superior court for review is incomplete, or not fully 
certified. 
Diminution in value. Rule of damages which provides 
for difference between "before" and "after" value of 
property which has been damaged or taken. Big Rock 
Mountain Corp. v. Stearns-R6ger Corp., C.A.S.D., 388 
F.2d 165, 168. If breach of contract results in defective 
or unfinished construction, and loss in value to injured 
party is not proved with sufficient certainty, the affected 
party may recover damages based on diminution in 
market price of property caused by breach. Restate
ment, Second, Contracts, § 348(2)(a). See also Damages 
(Expectancy damages). 
Diminution of damages. See Mitigation of damages. 
Dimisi / d�maysay /. In old conveyancing, I have de
mised. Dimisi, concessi, et ad firmam tradidi, have 
demised, granted, and to farm let. The usual words of 
operation in a lease. 2 Bl.Comm. 317, 318. 
Dimisit / d�mays�tI. In old conveyancing, [he J has de
mised. See Dimisi. 
Dimissorire litterre / dim�s6riyiy lit�riy /. In the civil 
law, letters dimissory or dismissory, commonly called 
"apostles" (qure vulgo apostoli dicuntur). See Apostoli, 
Apostles. 
Dimissory letters / dim�soriy let�rz/. Where a candi
date for holy orders has a title of ordination in one 
diocese in England, and is to be ordained in another, the 
bishop of the former diocese gives letters dimissory to 
the bishop of the latter to enable him to ordain the 
candidate. 
Dinarchy /daynarkiy/. A government of two persons. 
Diocesan / day6s�s;}n/. Belonging to a diocese; a bishop, 
as he stands related to his own diocese. 
Diocesan courts. In English law, the consistorial courts 
of each diocese, exercising general jurisdiction of all 
matters arising locally within their respective limits, 
with the exception of places subject to peculiar jurisdic
tion, and administering the other branches of the eccle
siastical law. 
Diocesan mission. A mission which does missionary 
work in single diocese. 
Diocese / day�s�s /. The territorial extent of a bishop'S 
jurisdiction. The circuit of every bishop's jurisdiction.

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459 
Dioichia /dayiykiy;}/. The district over which a bishop 
exercised his spiritual functions. 
Diploma. In the civil law, a royal charter; letters pat
ent granted by a prince or sovereign. Instrument con
ferring some honor, privilege, or authority. Commonly 
used to denote document given by educational institu
tion on graduation and awarding of degree. 
Diplomacy. The art and practice of conducting negotia
tions between foreign governments for the attainment of 
mutually satisfactory political relations. Negotiation or 
intercourse between nations through their representa
tives. The rules, customs, and privileges of representa
tives at foreign courts. 
Diplomatic agent. In international law, a general 
name for all classes of persons charged with the negotia
tion, transaction, or superintendence of the diplomatic 
business of one nation with that of another. See also 
Ambassador. 
Diplomatic relations. Established and formal commu
nications and acknowledgment between one country and 
another in which diplomatic agents are exchanged. 
Diplomatics. The science of diplomas, or of ancient 
writings and documents. The art of judging of ancient 
charters, public documents, diplomas, etc., and discrimi
nating the true from the false. 
Dipsomania / dips;}meyn(i)y;}/. A mental disease charac
terized by an uncontrollable desire for intoxicating 
drinks. An irresistible impulse to indulge in intoxi
cation, either by alcohol or other drugs. 
Dipsomaniac / dips;}meyniyrek/. A person subject to dip
somania. One who has an irresistible desire for alcohol
ic liquors. See Ins anity. 
Diptycha / diptik;}/. Diptychs; tablets of wood, metal, or 
other substance, used among the Romans for the pur
pose of writing, and folded like a book of two leaves. 
The diptychs of antiquity were especially employed for 
public registers. They were used in the Greek, and 
afterwards in the Roman, church, as registers of the 
names of those for whom supplication was to be made, 
and are ranked among the earliest monastic records. 
Direct, v. To point to; guide; order; command; in
struct. To advise; suggest; request. 
Direct, adj. Immediate; proximate; by the shortest 
course; without circuity; operating by an immediate 
connection or relation, instead of operating through a 
medium; the opposite of indirect. Carter v. Carter Coal 
Co., App.D.C., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 11 60. 
In the usual or natural course or line; immediately 
upwards or downwards; as distinguished from that 
which is out of the line, or on the side of it. In the usual 
or regular course or order, as distinguished from that 
which diverts, interrupts, or opposes. The opposite of 
cross, contrary, collateral or remote. 
Without any intervening medium, agency or influ
ence; unconditional. 
DIRECT ESTOPPEL 
Direct action. An action by insured directly against 
insurer rather than against tortfeasor's indemnity poli
cy. Hand v. Northwestern Nat. Ins. Co., 255 Ark. 802, 
502 S.W.2d 474. Action by a stockholder to enforce 
right of action existing in him as contrasted with a 
derivative suit in behalf of corporation. Citizens Nat'l 
Bank of St. Petersburg v. Peters, Fla.App., 175 So.2d 54, 
56. 
Direct and proximate cause. See Direct cause. 
Direct attack. A direct attack on a judgment or decree 
is an attempt, for sufficient cause, to have it annulled, 
reversed, vacated, corrected, declared void, or enjoined, 
in a proceeding instituted for that specific purpose, such 
as an appeal, writ of error, bill of review, or injunction 
to restrain its execution; distinguished from a collateral 
attack, which is an attempt to impeach the validity or 
binding force of the judgment or decree as a side issue or 
in a proceeding instituted for some other purpose. Er
nell v. O'Fiel, Tex.Civ.App., 441 S.W.2d 653, 655. A 
direct attack on a judicial proceeding is an attempt to 
void or correct it in some manner provided by law. 
Compare Collateral attack. 
Direct cause. That which sets in motion train of events 
which brings about result without intervention of any 
force operating or working actively from new and inde
pendent source; or, as one without which the injury 
would not have happened. Norbeck v. Mutual of Oma
ha Ins. Co., 3 Wash.App. 582, 476 P.2d 546, 547. See 
Cause; Proximate cause. 
Direct charge-off method. A method of accounting for 
bad debts whereby a deduction is permitted only when 
an account becomes partially or completely worthless. 
Direct contempt. Such contempt consists of contuma
cious words or acts expressed in presence of court, while 
"indirect contempt" consists of similar misconduct or 
other disobedient acts performed outside court's pres
ence. State v. Wisniewski, 103 N.M. 430, 708 P.2d 1031, 
1035. See also Contempt. 
Direct costs. Costs of direct material and labor, and 
variable overhead incurred in producing a product. 
Direct damages. See Damages. 
Directed verdict. In a case in which the party with the 
burden of proof has failed to present a prima facie case 
for jury consideration, the trial judge may order the 
entry of a verdict without allowing the jury to consider 
it, because, as a matter of law, there can be only one 
such verdict. Fed.R.Civil P. 50(a). In a criminal case, 
in federal court, the judge may render a judgment of 
acquittal in favor of defendant (in place of a motion for 
directed verdict, what has been abolished). Fed.R. 
Crim.P. 29. A directed verdict may be granted either on 
the court's own initiative or on the motion of a party. 
See also Verdict. 
Direct estoppel. Form of estoppel by judgment where 
issue has been actually litigated and determined in 
action between same parties based upon same cause of 
action. Napper v. Anderson et aI., C.A.Tex., 500 F.2d 
634, 636. See also Collateral estoppel doctrine.

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DIRECT EVIDENCE 
Direct evidence. Evidence in form of testimony from a 
witness who actually saw, heard or touched the subject 
of questioning. State v. Baker, 249 Or. 549, 438 P.2d 
978, 980. Evidence, which if believed, proves existence 
of fact in issue without inference or presumption. State 
v. McClure, Mo.App., 504 S.W.2d 664, 668. That means 
of proof which tends to show the existence of a fact in 
question, without the intervention of the proof of any 
other fact, and is distinguished from circumstantial evi
dence, which is often called "indirect." Direct evidence 
means evidence which in the first instance applies di
rectly to the factum probandum, or which immediately 
points to a question at issue, or is evidence of the precise 
fact in issue and on trial by witnesses who can testify 
that they saw the acts done or heard the words spoken 
which constituted the precise fact to be proved. 
Evidence that directly proves a fact, without an infer
ence or presumption, and which in itself, if true, conclu
sively establishes that fact. Calif.Evid.Code. 
Compare Circumstantial evidence. 
Direct examination. The first interrogation or exami
nation of a witness, on the merits, by the party on whose 
behalf he is called. The first examination of a witness 
upon a matter that is not within the scope of a previous 
examination of the witness. Calif.Evid.Code. 
This is to be distinguished from an examination in 
pais, or on the voir dire, which is merely preliminary, 
and is had when the competency of the witness is 
challenged; from the cross-examination, which is con
ducted by the adverse party; and from the redirect 
examination which follows the cross-examination, and is 
had by the party who first examined the witness. 
Compare Cross examination. See also Leading ques
tion; Redir ect examination. 
Direct financing. A means whereby a person obtains 
credit for the purchase or lease of property or services 
by getting a loan from a bank or other third person who 
is not the supplier of the property or services. 
Direct injury. A wrong which directly results in the 
violation of a legal right and which must exist to permit 
a court to determine the constitutionality of an act of 
Congress. 
Direct interest. A direct interest, such as would render 
the interested party incompetent to testify in regard to 
the matter, is an interest which is certain, and not 
contingent or doubtfuL A matter which is dependent 
alone on the successful prosecution of an execution 
cannot be considered as uncertain, or otherwise than 
direct, in this sense. 
Direction. The act of governing; management; superin
tendence. Denton v. Yazoo & M. V. R. Co., Miss., 284 
U.S. 305, 52 S.Ct. 141, 142, 76 L.Ed. 310. Also the body 
of persons (called "directors") who are charged with the 
management and administration of a corporation or 
institution. 
The charge or instruction given by the court to a jury 
upon a point of law arising or involved in the case, to be 
460 
by them applied to the facts in evidence. See Jury 
instructions. 
The clause of a bill in equity containing the address of 
the bill to the court. 
That which is imposed by directing; a guiding or 
authoritative instruction; order; command. Hughes v. 
Van Bruggen, 44 N.M. 534, 105 P.2d 494, 496. 
The line or course upon which anything is moving or 
aimed to move. 
Direct line. See Descent. 
Direct loss. One resulting immediately and proximately 
from the occurrence and not remotely from some of the 
consequences or effects thereof. See Loss. 
Directly. In a direct way without anything intervening; 
not by secondary, but by direct, means. 
Director. One who, or that which directs; as one who 
directs or regulates, guides or orders; a manager or 
superintendent, or a chief administrative officiaL State 
ex inf. McKittrick v. Bode, 342 Mo. 162, 11 3 S.W.2d 805, 
808. See Directors. 
Director of Public Prosecutions. An officer in Eng
land, either barrister or solicitor of ten years standing, 
under the supervision of the Attorney General, who 
undertakes prosecutions for murder and important cases 
as he sees fit. Prosecution of Offenses Act, 1985, as 
amended by the Criminal Justice Act, 1987. 
Director of the Mint. An officer having the control, 
management, and superintendence of the United States 
Mint and its branches. He is appointed by the Presi
dent, by and with the advice and consent of the senate. 
Directors. Persons appointed or elected according to 
law, authorized to manage and direct the affairs of a 
corporation or company. The whole of the directors 
collectively form the board of directors. 
Board of directors. See Board of directors. 
Directors liability insurance. See Insurance. 
Inside director. Director who is an employee, officer or 
major stockholder of corporation. 
Interlocking director. Person who is a director of more 
than one corporation having allied interests. See Inter
locking directors. 
Outside director. Non-employee director with no, or 
only minimal, direct interest in corporation. 
Directory, adj. A provision in a statute, rule of proce
dure, or the like, which is a mere direction or instruc
tion of no obligatory force, and involving no invalidating 
consequence for its disregard, as opposed to an impera
tive or mandatory provision, which must be followed. 
The general rule is that the prescriptions of a statute 
relating to the performance of a public duty are so far 
directory that, though neglect of them may be punisha
ble, yet it does not affect the validity of the acts done 
under them, as in the case of a statute requiring an 
officer to prepare and deliver a document to another 
officer on or before a certain day.

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461 
A "directory" provision in a statute is one, the observ
ance of which is not necessary to the validity of the 
proceeding to which it relates; one which leaves it 
optional with the department or officer to which it is 
addressed to obey or not as he may see fit. Generally, 
statutory provisions which do not relate to essence of 
thing to be done, and as to which compliance is matter 
of convenience rather than substance are "directory," 
while provisions which relate to essence of thing to be 
done, that is, matters of substance, are "mandatory." 
Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308, 310. 
Under a general classification, statutes are either 
"mandatory" or "directory," and, if mandatory, they 
prescribe, in addition to requiring the doing of the 
things specified, the result that will follow if they are 
not done, whereas, if directory, their terms are limited 
to what is required to be done. A statute is mandatory 
when the provision of the statute is the essence of the 
thing required to be done; otherwise, when it relates to 
form and manner, and where an act is incident, or after 
jurisdiction acquired, it is directory merely. 
Directory trust. Where, by the terms of a trust, the fund 
is directed to be vested in a particular manner till the 
period arrives at which it is to be appropriated, this is 
called a "directory trust." It is distinguished from a 
discretionary trust, in which the trustee has a discretion 
as to the management of the fund. 
Directory, n. Book containing names, addresses, and 
occupations of inhabitants of city. Also any list or 
compilation, usually in book or pamphlet form, of per
sons, professional organizations, firms or corporations 
forming some class separate and distinct from others, 
e.g. telephone directory, lawyer's directory, hotel directo
ry, etc. 
Direct payment. One which is absolute and uncondi
tional as to the time, amount, and the persons by whom 
and to whom it is to be made. 
Direct placement. With respect to securities offerings, 
the negotiation by a borrower, such as an industrial or 
utility company, directly with the lender, such as a life 
insurance company or group of investors, for sale of an 
entire issue of securities. No underwriter is involved 
and the transaction is exempt from SEC filing. This is 
also called a private placement (q.v.) 
Direct selling. Selling directly to customer rather than 
to distributor or dealer; or to retailer rather than to 
wholesaler. 
Direct tax. One that is imposed directly upon property, 
according to its value. It is generally spoken of as a 
property tax or an ad valorem tax. Distinguishable 
from an indirect tax which is levied upon some right or 
privilege. 
Diribitores /dir;}b;}toriyz/. In Roman law, officers who 
distributed ballots to the people, to be used in voting. 
Diriment impediments / dir;}m;}nt imped;}m;}nts/. In 
canon law, absolute bars to marriage, which would make 
it null ab initio. 
DISABILITY 
Disability. The want of legal capability to perform an 
act. Term is generally used to indicate an incapacity 
for the full enjoyment of ordinary legal rights; thus, 
persons under age, insane persons, and convicts are said 
to be under legal disability. Sometimes the term is used 
in a more limited sense, as when it signifies an impedi
ment to marriage, or the restraints placed upon clergy
men by reason of their spiritual avocations, or lack of 
legal qualifications to hold office. 
As used in connection with workers' compensation 
acts, disability is a composite of (1) actual incapacity to 
perform the tasks usually encountered in one's employ
ment and the wage loss resulting therefrom (i.e. impair
ment of earning capacity), and (2) physical impairment 
of the body that may or may not be incapacitating. 
Russell v. Bankers Life Co., 46 Cal.App.3d 405, 120 
Cal.Rptr. 627, 633. 
Statutory definition of a "disabilit y," for social securi
ty benefits purposes, imposes three requirements: (1) 
that there be a medically determinable physical or men
tal impairment which can be expected to result in death 
or to be of long-continued and indefinite duration; (2) 
that there be an inability to engage in any substantial 
gainful employment; and (3) that the inability be by 
reason of the impairment. 42 U.S.C.A. §§ 416(i)(1), 
423(d). Pierce v. Gardner, C.A.Ill., 388 F.2d 846, 847. 
Inability to work without some pain or discomfort does 
not necessarily satisfy test of disability. DeFontes v. 
Celebrezze, 226 F.Supp. 327, 330 (D.C.R.I.). However, 
pain by itself or pain in conjunction with other injuries 
may be the basis for "disability" within meaning of the 
Social Security Act. Farmer v. Weinberger, D.C.Pa., 
368 F.Supp. 1, 5. 
Absence of competent physical, intellectual, or moral 
powers; impairment of earning capacity; loss of physi
cal function that reduces efficiency; inability to work. 
Rorabaugh v. Great Eastern Casualty Co., 117 Wash. 7, 
200 P.2d 587, 590. 
Under Uniform Probate Code, an incapacitated person 
is one who is impaired by reason of physical disability. 
See also Capacity; Civil disabilities; Incapacity; Incom
petency; Loss of earning capacity; Permanent injury; 
Temporary disability; Total disability. 
General Classification 
Disability may be either general or special; the former 
when it incapacitates the person for the performance of 
all legal acts of a general class, or giving to them their 
ordinary legal effect; the latter when it debars him from 
one specific act. Disability may also be either personal 
or absolute; the former where it attaches to the particu
lar person, and arises out of his status, his previous act, 
or his natural or juridical incapacity; the latter where it 
originates with a particular person, but extends also to 
his descendants or successors. The term civil disability 
is used as equivalent to legal disability, both these 
expressions meaning disabilities or disqualifications cre
ated by positive law, as distinguished from physical 
disabilities. A physical disability is a disability or inca
pacity caused by physical defect or infirmity, or bodily

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DISABILITY 
imperfection, or mental weakness or alienation; as dis
tinguished from civil disability, which relates to the civil 
status or condition of the person, and is imposed by the 
law. 
Partial disability. Under workers' compensation law, 
incapacity in part from returning to work performed 
before accident. Such exists if employee is unable to 
perform duties in which he was customarily engaged 
when injured or duties of same or similar character, 
nature, or description, but is able to engage in gainful 
activity at some job for which he is fitted by education, 
training or experience. Daney v. Argonaut Ins. Co., 
La.App., 421 So.2d 331, 338. 
Permanent disability. Incapacity forever from re
turning to work formerly performed before accident, 
though this incapacity may be either total or partial. 
See also Permanent disability. 
Tem porary disability. Temporary, as distinguished from 
permanent, disability is a condition that exists until the 
injured employee is as far restored as the permanent 
character of the injuries will permit. 
Total disability. Total disability to follow insured's 
usual occupation arises where person is incapacitated 
from performing any substantial part of his ordinary 
duties, though still able to perform a few minor duties 
and be present at his place of business. "Total disabili
ty" within an accident policy does not mean absolute 
physical disability to transact any business pertaining to 
insured's occupation, but disability from performing sub
stantial and material duties connected with it. The 
term may also apply to any impairment of mind or body 
rendering it impossible for insured to follow continuous
ly a substantially gainful occupation without seriously 
impairing his health, the disability being permanent 
when of such nature as to render it reasonably certain 
to continue throughout the lifetime of insured. See also 
Permanent disability; Wholly disabled. 
Disability clause. Provision in insurance policy calling 
for waiver of premiums during period of disability. 
Disability compensation. Payments from public or pri
vate funds to one during period of disability and inca
pacity from work; e.g. social security or workers' com
pensation disability benefits. 
Disability insurance. Insurance coverage purchased to 
protect insured financially during periods of incapacity 
from working. Often purchased by professionals. 
Disability retirement. Plan of retirement which is in� 
voked when person covered is disabled from working to 
normal retirement age or increased benefits when per
son retires because of disability. 
Disable. Ordinarily, to take away the ability of, to 
render incapable of proper and effective action. Federal 
Union Life Ins. Co. of Cincinnati, Ohio v. Richey's 
Adm'x, 256 Ky. 262, 75 S.W.2d 767, 768. See Civil death; 
Disability. 
In the old language of pleading, to disable is to take 
advantage of one's own or another's disability. Thus, it 
462 
was an express maxim of the common law that the party 
shall "not disable himself'; but "this disability to dis-
able himself '" '" is personal." 
Disabled person. Person who lacks legal capacity to act 
sui juris or one who is physically or mentally disabled 
from acting in his own behalf or from pursuing occupa
tion. See Civil death; Disability. 
Disabling restraints. Restraints on alienation of prop
erty which are normally void as against public policy. 
Lohmann v. Adams, Okl., 540 P.2d 552, 556. 
Disabling statutes. English acts of parliament, re
straining and regulating the exercise of a right or the 
power of alienation; the term is specially applied to 1 
Eliz., c. 19, and similar acts restraining the power of 
ecclesiastical corporations to make leases. 
Disadvocare. To deny a thing. 
Disaffirm. To repudiate; to revoke a consent once giv
en; to recall an affirmance. To refuse one's subsequent 
sanction to a former act; to disclaim the intention of 
being bound by an antecedent transaction. 
Disaffirmance. The repudiation of a former transac
tion. The refusal by one who has the legal power to 
refuse (as in the case of a voidable contract), to abide by 
his former acts, or accept the legal consequences of 
them. It may either be "express" (in words) or "im
plied" from acts inconsistent with a recognition of valid
ity of former transaction. 
Disafforest / dis;}f6hr;}st/ . To restore to their former 
condition lands which have been turned into forests. To 
remove from the operation of the forest laws. 2 Bl. 
Comm. 416. 
Disagreement. Difference of opinion or want of uni
formity or concurrence of views; as, a disagreement 
among the members of a jury, among the judges of a 
court, or between arbitrators. 
The refusal by a grantee, lessee, etc., to accept an 
estate, lease, etc., made to him. The annulling of a 
thing that had essence before. No estate can be vested 
in a person against his will. Consequently, no one can 
become a grantee, etc., without his agreement. The law 
implies such an agreement until the contrary is shown, 
but his disagreement renders the grant, etc., inopera
tive. 
Disallow. To refuse to allow, to deny the need or validi
ty of, to disown or reject. 
Disalt / d;}s6It/. To disable a person. 
Disappropriation. In ecclesiastical law, this is where 
the appropriation of a benefice is severed, either by the 
patron presenting a clerk or by the corporation which 
has the appropriation being dissolved. 1 Bl.Comm. 385. 
Disapprove. To pass unfavorable judgment upon; to 
refuse official approbation to; to disallow; to decline to 
sanction; to refuse to confirm, ratify or consent to. 
Disaster. For common disaster, see Common.

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463 
Disaster loss. If a casualty is sustained in an area 
designated as a disaster area by the President of the 
U.S., the casualty is designated a disaster loss. In such 
an event, the disaster loss may be treated as having 
occurred in the taxable year immediately preceding the 
taxable year in which the disaster actually occurred. 
Thus, immediate tax benefits are provided to victims of 
a disaster. See Casualty loss. 
Disavow I dis�vaw I. To repudiate the unauthorized acts 
of an agent; to deny the authority by which he assumed 
to act. 
Disbarment. Act -of court in suspending attorney's li
cense to practice law. A disbarment proceeding is nei
ther civil nor criminal action; it is special proceeding 
peculiar to itself, disciplinary in nature, and of summary 
character reSUlting from inherent power of courts over 
their officers. In re Prisock, 244 Miss. 427, 143 So.2d 
434, 436. See also Debarment. 
Disbocatio Idisb�keysh(iy)ow/. In old English law, a 
conversion of wood grounds into arable or pasture; an 
assarting. See Assart. 
Disbursement I disb;}rsm�nt/. To pay out, commonly 
from a fund. To make payment in settlement of a debt 
or account payable. 
D.I.S.C. Domestic International Sales Corporation (q.v.). 
Discarcare Idiskarkeriy/. In old English law, to dis
charge, to unload; as a vessel. Carcare et discarcare; to 
charge and discharge; to load and unload. 
Discargare I diskargeriy I. In old European law, to dis
charge or unload, as a wagon. 
Disceptio causa! Id�sepsh(iy)ow k6ziy/. In Roman law, 
the argument of a cause by the counsel on both sides. 
Discharge. To release; liberate; annul; unburden; dis
incumber; dismiss. To extinguish an obligation (e.g. a 
person's liability on an instrument); terminate employ
ment of person; release, as from prison, confinement or 
military service. 
Discharge is a generic term; its principal species are 
rescission, release, accord and satisfaction, performance, 
judgment, composition, bankruptcy, merger. 
In contract law, discharge occurs either when the 
parties have performed their obligations in the contract, 
or when events, the conduct of the parties, or the opera
tion of law releases the parties from performing. 
As applied to demands, claims, rights of action, incum
brances, etc., to discharge the debt or claim is to extin
guish it, to annul its obligatory force, to satisfy it. And 
here also the term is generic; thus a debt, a mortgage, a 
legacy, may be discharged by payment or performance, 
or by any act short of that, lawful in itself, which the 
creditor accepts as sufficient. U.C.C. § 3-601 et seq. 
governs discharge of commercial instruments. To dis
charge a person is to liberate him from the binding force 
of an obligation, debt, or claim. 
See also Performance; Release. 
DISCHARGE 
Bankruptcy. The release of a debtor from all of his 
debts which are provable in bankruptcy, except such as 
are excepted by the Bankruptcy Code. The discharge of 
the debtor is the step which regularly follows the filing 
of a petition in bankruptcy and the administration of his 
estate. By it the debtor is released from the obligation 
of all his debts which were or might be proved in the 
proceedings, so that they are no longer a charge upon 
him, and so that he may thereafter engage in business 
and acquire property without its being liable for the 
satisfaction of such former debts. Bankruptcy Code 
§§ 523, 524. See also Bankruptcy proceed ings. 
Constructive discharge. That which occurs when an 
employer deliberately makes an employee's working 
conditions so intolerable that the employee is forced into 
involuntary resignation. Pittman v. Hattiesburg Munic
ipal Separate School Dist., C.A.Miss., 644 F.2d 1071, 
1077. 
Contract. To cancel the obligation of a contract; to 
make an agreement or contract null and inoperative. 
As a noun, the word means the act or instrument by 
which the binding force of a contract is terminated, 
irrespective of whether the contract is carried out to the 
full extent contemplated (in which case the discharge is 
the result of performance ) or is broken off before com
plete execution. 
Criminal law. The act by which a person in confine
ment, held on an accusation of some crime or misde
meanor, is set at liberty. 
Employment. To dismiss from employment; to termi
nate the employment of a person. Hunn v. City of 
Madison Heights, 60 Mich.App. 326, 230 N.W.2d 414, 
418. 
Equity practice. In the process of accounting before a 
master in chancery, the discharge is a statement of 
expenses and counter-claims brought in and filed, by 
way of set-off, by the accounting defendant; which fol
lows the charge in order. 
Jury. To discharge a jury is to relieve them from any 
further consideration of a cause. This is done when the 
continuance of the trial is, by any cause, rendered im
possible; also when the jury, after deliberation, has 
rendered a verdict or cannot agree on a verdict. 
Military discharge. The release or dismissal of a sol
dier, sailor, or marine, from further military service, 
either at the expiration of his term of enlistment, or 
previous thereto on special application therefor, or as a 
punishment. An "honorable" discharge is one granted 
at the end of an enlistment and accompanied by an 
official certificate of good conduct during the service. A 
"dishonorable" discharge is a dismissal from the service 
for bad conduct or as a punishment imposed by sentence 
of a court-martial for offenses against the military law. 
There is also in occasional use a form of "discharge 
without honor," which implies censure, but is not in 
itself a punishment. 
Mortgage. Formal document which recites that a mort
gage debt has been satisfied and which is generally

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DISCHARGE 
recorded in Registry of Deeds (or comparable recording 
body) or in other appropriate place for recording deeds 
to real estate. 
Dischargeable claim. In bankruptcy, a claim which is 
barred by bankrupt's discharge if properly scheduled. 
See Bankruptcy Code § 727. 
Disciplinary proceedings. Proceedings which are 
brought against attorney to secure his or her censure, 
suspension or disbarment for various acts of unprofes
sional conduct. Most states have procedural rules gov
erning such proceedings including Disciplinary Rules for 
attorneys. See Code of Professional Responsibility; Dis
barment; Discipli nary rules. 
Disciplinary rules. Name of the Disciplinary Rules of 
the ABA Model Code of Professional Responsibility. 
They stated "the minimum level of conduct below which 
no lawyer can fall without being subject to disciplinary 
action." These rules have been superseded by the ABA 
Model Rules of Professional Conduct (q. v.). 
Discipline. Instruction, comprehending the communica
tion of knowledge and training to observe and act in 
accordance with rules and orders. 
Correction, chastisement, punishment, penalty. To 
bring order upon or bring under control. 
Disclaimer. The repudiation or renunciation of a claim 
or power vested in a person or which he had formerly 
alleged to be his. The refusal, or rejection of an estate 
or right offered to a person. The disavowal, denial, or 
renunciation of an interest, right, or property imputed 
to a person or alleged to be his. Also the declaration, or 
the instrument, by which such disclaimer is published. 
The rejection, refusal, or renunciation of a claim, 
power, or property. I.R.C. § 2518 sets forth the condi
tions required to avoid gift tax consequences as the 
result of a disclaimer. 
See also Refusal; Renunciation; Repudiation. 
Estates. The act by which a party refuses to accept an 
estate which has been conveyed to him. 
Patents. When the title and specifications of a patent 
do not agree, or when part of that which it covers is not 
strictly patentable, because neither new nor useful, the 
patentee is empowered, with leave of the court, to enter 
a disclaimer of any part of either the title or the 
specification, and the disclaimer is then deemed to be 
part of the letters patent or specification, so as to render 
them valid for the future. 
Pleading. In common law pleading, a renunciation by 
the defendant of all claim to the subject of the demand 
made by the plaintiffs bill. See also Denial. 
Qualified disclaimer. A refusal by a person to accept an 
interest in property. A qualified disclaimer must be in 
writing and must be received by the transferor not later 
than 9 months from the time the interest is created. 
Once the property is accepted and enjoyed by the indi
vidual, the property can not be disclaimed. 
Warranty. Words or conduct which tend to negate or 
limit warranty in sale of goods and which in certain 
464 
instances must be conspicuous and refer to specific war
ranty to be excluded. V.C.C. § 2-316. 
"Disclaimer of warranties" is means of controlling 
liability of seller by reducing number of situations in 
which seller can be in breach of contract terms. Collins 
Radio Co. of Dallas, Tex. v. Bell, Okl.App., 623 P.2d 
1039, 1049. See also Warranty. 
Disclaimer clause. Device used to control seller's liabil
ity by reducing number of situations in which seller can 
be in breach of warranty. Lecates v. Hertrich Pontiac 
Buick Co., Del.Super., 515 A.2d 163, 171. See e.g. War
ranty (Limited warranty). 
Disclose. To bring into view by uncovering; to expose; 
to make known; to lay bare; to reveal to knowledge; to 
free from secrecy or ignorance, or make known. See 
Discovery. 
Disclosure. Act of disclosing. Revelation; the imparta
tion of that which is secret or not fully understood. 
In patent law, the specification; the statement of the 
subject-matter of the invention, or the manner in which 
it operates. 
In securities law, the revealing of certain financial 
and other information believed relevant to investors 
considering buying securities in some venture; the re
quirement that sufficient information be provided pro
spective investors so that they can make an intelligent 
evaluation of a security. See Prospectus. 
Vnder Truth in Lending Act "disclosure" is a term of 
art which refers to the manner in which certain infor
mation (e.g., total cost of loan), deemed basic to an 
intelligent assessment of a credit transaction, shall be 
conveyed to the consumer. 15 V.S.C.A. § 1601 et seq. 
Doggett v. Ritter Finance Co. of Louisa, D.C.Va., 384 
F.Supp. 150, 153. See Disclosure statement. 
See Buried facts doctrine; Compulsory disclosure; Dis
covery; Freedom of Information Act; Full disclosure; Sub
poena. 
Disclosure by parties. Term sometimes used in law of 
deceit or fraud as to the obligation of parties to reveal 
fact which is material if its revelation is necessary 
because of the position of the parties to each other. See 
also Material fact. 
Disclosure statement. The Federal Truth in Lending 
Act requires that the finance charge, annual percentage 
rate, number and amount of periodic payments, and 
other credit terms, be fully disclosed in consumer loan 
agreements. This is commonly done by means of a 
disclosure statement which accompanies or is made a 
part of the agreement. See also Truth in Lending Act. 
Discommon I disk6m:m/. To deprive commonable lands 
of their commonable quality, by inclosing and appropri
ating or improving them. 
Discontinuance Idisk:mtinyuw;}nsl. Ending, causing to 
cease, ceasing to use, giving up, leaving off. Refers to 
the termination or abandonment of a project, structure, 
highway, or the like.

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465 
The cessation of the proceedings in an action where 
the plaintiff voluntarily puts an end to it, either by 
giving notice in writing to the defendant before any step 
has been taken in the action subsequent to the answer, 
or at any other time by order of the court of a judge. A 
non-suit; dismissal. Under Rules practice, "dismissal" 
is appropriate term for discontinuance; may be volun
tary or involuntary and may effect counterclaim, cross 
claim or third party claim. Costs may be assessed. 
Fed.R. Civil P. 41. See Dismissal. 
In common law pleading, that technical interruption 
of the proceedings in an action which follows where a 
defendant does not answer the whole of the plaintiffs 
declaration, and the plaintiff omits to take judgment for 
the part unanswered. 
Discontinuance of an estate. The termination or sus
pension of an estate-tail, in consequence of the act of the 
tenant in tail, in conveying a larger estate in the land 
than he was by law entitled to do. 2 Bl.Comm. 275; 3 
Bl.Comm. 171. An alienation made or suffered by ten
ant in tail, or by any that, is seised in autre droit, 
whereby the issue in tail, or the heir or successor, or 
those in reversion or remainder, are driven to their 
action, and cannot enter. The cesser of a seisin under 
an estate, and the acquisition of a seisin under a new 
and necessarily a wrongful title. 
Disconvenable /disk;mviyn�b;)l/. L. Fr. Improper; un
fit. 
Discount. In a general sense, an allowance or deduction 
made from a gross sum on any account whatever. In a 
more limited and technical sense, the taking of interest 
in advance. 
A deduction from an original price or debt, allowed for 
paying promptly or in cash. Method of selling securities 
(e.g., treasury bills) which are issued below face value 
and redeemed at face value. Difference between a 
bond's current market price and its face value. Reduc
tion in normal selling price of goods. 
The low initial interest rate lenders offer on adjusta
ble-rate mortgages. It usually applies for one or two 
years. After the discount period ends, the rate usually 
increases, depending on the index used to determine the 
interest rate. 
To purchase an instrument or other right to the 
payment of money, usually for an amount less than the 
face amount or value of the right. 
A discount by a bank means a drawback or deduction 
made upon its advances or loans of money, upon nego
tiable paper or other evidences of debt payable at a 
future day, which are transferred to the bank. Al
though the discounting of notes or bills, in its most 
comprehensive sense, may mean lending money and 
taking notes in payment, yet, in its more ordinary sense, 
the discounting of such means advancing a considera
tion for a bill or note, deducting or discounting the 
interest which will accrue for the time the note has to 
run. Discounting by a bank means lending money upon 
a note, and deducting the interest or premium in ad
vance. That step in lending transaction where interest 
Black's Law Dictionary 6th Ed.-1 1 
DISCOVERED PERIL DOCTRINE 
on loan is taken in advance by deducting amount there
for for term of loan, giving borrower face value of 
obligation less interest. Russell v. Lumbermen's Mortg. 
Co., Com.Pl., 27 Ohio Misc. 171, 273 N.E.2d 803, 804. 
See also Rebate; Rediscount; Rediscount rate. 
Quantity discount. Allowed manufacturers or wholesal
ers for purchases in large amounts. Robinson Patman 
Act requires that such be justified by savings of seller. 
Trade discount. Price reduction to different classes of 
customers; e.g. discount given by lumber dealers to 
builders and contractors. 
Discount bond. A bond sold for less than face or 
maturity value. No interest is paid annually, but all 
interest accrues to the maturity date when it is paid. 
Discount broker. A bill broker; one who discounts bills 
of exchange and promissory notes, and advances money 
on securities. A securities broker that executes buy and 
sell orders at rates lower than full service· brokers. 
Discount loan. A loan in which the bank deducts the 
interest in advance at the time the loan is made. 
Discount market. Segment of the money market in 
which banks and other financial institutions trade com
mercial paper. 
Discount rate. Percentage of the face amount of com
mercial paper which a holder pays when he transfers 
such paper to a financial institution for cash or credit. 
Rate charged for discounting loan. See Discount; Redis
count rate. 
The rate of interest used in the process of finding 
present values (discounting). 
The discount rate is the rate charged Federal Reserve 
System member banks for borrowing from the country's 
district Federal Reserve banks. The rate, which is set 
by the Federal Reserve Board, controls the supply of 
money available to banks for lending and provides a 
floor for interest rates. 
Discount shares. Shares of stock issued as fully paid 
and nonassessable for less than the full lawful consider
ation. Par value shares issued for cash less than par 
value. Discount shares are considered a species of wa
tered shares and may impose a liability on the recipient 
equal to the difference between the par value and the 
cash for which such shares were issued. 
Discount stock. See Discount shares. 
Discount yield. Yield on a security sold at a discount. 
Discover. To uncover that which was hidden, concealed, 
or unknown from every one. To get first sight or 
knowledge of; to get knowledge of what has existed but 
has not theretofore been known to the discoverer. 
Shellmar Products Co. v. Allen-Qualley Co., C.C.A.Ill., 87 
F.2d 104, 108. Under U.C.C., refers to knowledge rather 
than reason to know. U.C.C. § 1-201(25). See also 
Discovery; Notice. 
Discovered peril doctrine. The doctrine of discovered 
peril (or "last clear chance") is regarded as a limitation 
of, or an exception to, the general rule of contributory

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DISCOVERED PERIL DOCTRINE 
negligence precluding a plaintiffs recovery. It is found
ed on considerations of public policy, deduced from hu
manitarian principles, which impose a moral duty upon 
everyone to avoid injuring another unnecessarily. The 
three essential elements which comprise the doctrine of 
discovered peril are: (1) the exposed condition brought 
about by the negligence of the plaintiff, (2) the actual 
discovery by defendant or his agents of plaintiffs peril
ous situation in time to have averted the injury by use 
of all means at their command commensurate with their 
own safety, and (3) failure thereafter to use such means. 
The party raising the issue of discovered peril must also 
prove that the opposing party's negligent conduct was a 
proximate cause of the injuries he sustained. Welch v. 
Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, 179. See also 
Last clear chance doctrine. 
Discovert Idisk;)v:)rt/. Not married; not subject to the 
disabilities of a coverture. It applies equally to a maid 
and a widow. 
Discovery. In a general sense, the ascertainment of 
that which was previously unknown; the disclosure or 
coming to light of what was previously hidden; the 
acquisition of notice or knowledge of given acts or facts; 
as, in regard to the "discovery" of fraud affecting the 
running of the statute of limitations, or the granting of 
a new trial for newly "discovered" evidence. 
International law. As the foundation for a claim of 
national ownership or sovereignty, discovery is the find
ing of a country, continent, or island previously un
known, or previously known only to its uncivilized in
habitants. 
Mining claim. See Min ing location. 
Patent law. The finding out some substance, mechani
cal device, improvement, or application, not previously 
known. It is something less than invention, and may be 
the result of industry, application, or be perhaps merely 
fortuitous. A. O. Smith Corporation v. Petroleum Iron 
Works Co. of Ohio, C.C.A.O hio, 73 F.2d 531, 538. 
Trial practice. The pre-trial devices that can be used by 
one party to obtain facts and information about the case 
from the other party in order to assist the party's 
preparation for trial. Under Federal Rules of Civil 
Procedure (and in states which have adopted rules pat
terned on such), tools of discovery include: depositions 
upon oral and written questions, written interrogatories, 
production of documents or things, permission to enter 
upon land or other property, physical and mental exami
nations and requests for admission. Rules 26-37. Term 
generally refers to disclosure by defendant of facts, 
deeds, documents or other things which are in his exclu
sive knowledge or possession and which are necessary to 
party seeking discovery as a part of a cause of action 
pending, or to be brought in another court, or as evi
dence of his rights or title in such proceeding. Harden
bergh v. Both, 247 Iowa 153, 73 N.W.2d 103, 106. 
In criminal proceedings, "discovery" emphasizes right 
of defense to obtain access to evidence necessary to 
prepare its own case. Britton v. State, 44 Wis.2d 109, 
170 N.W.2d 785, 789. Discovery and inspection in feder-
466 
al criminal cases is governed by Fed.R.Crim.P. 16 and 
26.2; most states having similar court rule or statutory 
discovery provisions. 
See also Deposition; Fishing trip or expedition; Good 
cause; Ins pection; Interrogatories; Jencks Act or Rule; 
Perpetuating testimony; Work product rule. 
Discovery, bill of. In equity pleading, a bill for the 
discovery of facts resting in the knowledge of the defen
dant, or of deeds or writings, or other things in his 
custody or power; but seeking no relief in consequence 
of the discovery, though it may pray for a stay of 
proceedings at law until the discovery is made. 
Discovery rule. Under the "discovery rule," limitation 
statute in malpractice cases does not start to run, i.e., 
the cause of action does not accrue, until the date of 
discovery of the malpractice, or the date when, by the 
exercise of reasonable care and diligence, the patient 
should have discovered the wrongful act. Shinabarger 
v. Jatoi, D.C.S.C., 385 F.Supp. 707, 710. 
Discovery vein. See Vein. 
Discredit. To destroy or impair the credibility of a 
person; to impeach; to lessen the degree of credit to be 
accorded to a witness or document, as by impugning the 
veracity of the one or the genuineness of the other; to 
disparage or weaken the reliance upon the testimony of 
a witness, or upon documentary evidence, by any means 
whatever. See Impeachment. 
Discreetly. Prudently; judiciously; with discernment. 
Discrepancy. A difference between two things which 
ought to be identical, as between one writing and anoth
er; a variance (q.v.). Also discord, discordance, disso
nance, dissidence, unconformity, disagreement, differ
ence. 
Discretely. Separately; disjunctively. 
Discretio est discernere per legem quid sit justum 
I diskresh(iy)ow est d:)s;)rn:)riy p,)r liyj:)m kwid sit 
j;}st:)m/. Discretion is to know through law what is just. 
Discretio est scire per legem quid sit justum 
Idiskresh(iy)ow est sayriy p,)r liyj:)m kwid sit j;)st:)m/. 
Discretion consists in knowing what is just in law. 
Discretion. When applied to public functionaries, dis
cretion means a power or right conferred upon them by 
law of acting officially in certain circumstances, accord
ing to the dictates of their own judgment and con
science, uncontrolled by the judgment or conscience of 
others. As applied to public officers connotes action 
taken in light of reason as applied to all facts and with 
view to rights of all parties to action while having 
regard for what is right and equitable under all circum
stances and law. State v. Whitman, R.I., 431 A.2d 1229, 
1233. 
In criminal law and the law of torts, it means the 
capacity to distinguish between what is right and wrong, 
lawful or unlawful, wise or foolish, sufficiently to render 
one amenable and responsible for his acts.

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Wise conduct and management; cautious discern
ment, especially as to matters of propriety and self-con
trol; prudence; circumspection; wariness. 
See Discretionary acts. 
Abuse of discretion. See Abuse (Discretion). 
Judicial and legal discretion. These terms are applied 
to the discretionary action of a judge or court, and mean 
discretion bounded by the rules and principles of law, 
and not arbitrary, capricious, or unrestrained. It is not 
the indulgence of a judicial whim, but the exercise of 
judicial judgment, based on facts and guided by law, or 
the equitable decision of what is just and proper under 
the circumstances. It is a legal discretion to be exer
cised in discerning the course prescribed by law and is 
not to give effect to the will of the judge, but to that of 
the law. The exercise of discretion where there are two 
alternative provisions of law applicable, under either of 
which court could proceed. A liberty or privilege to 
decide and act in accordance with what is fair and 
equitable under the peculiar circumstances of the partic
ular case, guided by the spirit and principles of the law, 
and exercise of such discretion is reviewable only for an 
abuse thereof. Manekas v. Allied Discount Co., 6 
Misc.2d 1079, 166 N.Y.S.2d 366, 369. For "abuse of 
discretion", see Abuse. 
Discretionary account. An account in which customer 
gives broker discretion, as to purchase and sales of 
securities or commodities, including selection, timing, 
and price to be paid or received. Stevens v. Abbott, 
Proctor and Paine, D.C.Va., 288 F.Supp. 836, 839. 
Discretionary acts. Those acts wherein there is no 
hard and fast rule as to course of conduct that one must 
or must not take and, if there is clearly defined rule, 
such would eliminate discretion. Elder v. Anderson, 205 
Cal.App.2d 326, 23 Cal.Rptr. 48, 51. Option open to 
judges and administrators to act or not as they deem 
proper or necessary and such acts or refusal to act may 
not be overturned without a showing of abuse of discre
tion, which means an act or failure to act that no 
conscientious person acting reasonably could perform or 
refuse to perform. One which requires exercise in judg
ment and choice and involves what is just and proper 
under the circumstances. Burgdorf v. Funder, 246 Cal. 
App.2d 443, 54 Cal.Rptr. 805. Compare Ministerial act. 
See also Discretion. 
Discretionary damages. Those which are measureable 
by enlightened conscience of impartial jurors. 
Discretionary function. See Disr�etionary acts. 
Discretionary power. One which is not imperative or, 
if imperative, the time, manner, or extent of execution 
of which is left to donee's discretion. The power to do or 
to refrain from doing a certain thing. City of San 
Antonio v. Zogheib, Tex.Civ.App., 70 S.W.2d 333, 334. 
Discretionary review. Form of appellate review which 
is not a matter of right but rather occurs only at the 
discretion of the appellate court; e.g. appeal to U.S. 
Supreme Court. See Certiorari. 
DISENTAILING DEED 
Discretionary trusts. Such as are not marked out on 
fixed lines, but allow a certain amount of discretion in 
their exercise. Those which cannot be duly adminis
tered without the application of a certain degree of 
prudence and judgment. Trusts where the trustee or 
another party has the right to accumulate (rather than 
pay out) the income for each year. Depending on the 
terms of the trust instrument, such income may be 
accumulated for future distributions to the income bene
ficiaries or added to corpus for the benefit of the remain
derman. See also Trust. 
Discrimination. In constitutional law, the effect of a 
statute or established practice which confers particular 
privileges on a class arbitrarily selected from a large 
number of persons, all of whom stand in the same 
relation to the privileges granted and between whom 
and those not favored no reasonable distinction can be 
found. Unfair treatment or denial of normal privileges 
to persons because of their race, age, sex, nationality or 
religion. A failure to treat all persons equally where no 
reasonable distinction can be found between those fa
vored and those not favored. Baker v. California Land 
Title Co., D.C.Cal., 349 F.Supp. 235, 238, 239. 
Federal statutes prohibit discrimination in employ
ment on basis of sex, age, race, nationality, religion, or 
being handicapped; e.g. Title VII of 1964 Civil Rights 
Act, Age Discrimination in Employment Act, Equal Pay 
Act, Sex Discrimination in Employment Based on Preg
nancy Act. Other federal acts, as supplemented by 
court decisions, prohibit discrimination in voting rights, 
housing, extension of credit, public education, and access 
to public facilities. 
With reference to common carriers, a breach of the 
carrier's duty to treat all shippers alike, and afford them 
equal opportunities to market their product. A carrier's 
failure to treat all alike under substantially similar 
conditions. 
See also Age Discrimination Act; Bias; Disparate treat
ment; Equal protection clause; Equal protection of the 
law; Invidious discrimination; Price discrimination; Protect
ed class; Re dlin ing; Reverse discrimination. 
Discussion. In the civil law, a proceeding, at the in
stance of a surety, by which the creditor is obliged to 
exhaust the property of the principal debtor, towards 
the satisfaction of the debt, before having recourse to 
the surety; and this right of the surety is termed the 
"benefit of discussion." 
Disease. Deviation from the healthy or normal condi
tion of any of the functions or tissues of the body. An 
alteration in the state of the body or of some of its 
organs, interrupting or disturbing the performance of 
the vital functions, and causing or threatening pain and 
weakness. Illness; sickness; disorder; malady; bodily 
infirmity. An illness or an abnormal state having a 
definite pattern of symptoms. See also In dustrial dis
ease; Occupational disease. 
Disentailing deed /dis:mteyliIJ diyd/. In English law, 
an enrolled assurance barring an entail, pursuant to 3 & 
4 Wm. IV, c. 74.

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DISENTAILING STATUTES 
Disentailing statutes. Statutes dealing with or prohib
iting the barring of the entail in a fee tail conveyance. 
Disentailment. Act of barring the entail created by fee 
tail conveyance and consisting of a deed absolute in fee 
simple by the tenant in tail. In this case the grantee 
took the fee simple and the entail or right of the first 
born of the tenant in tail took nothing on the death of 
the tenant in tail. 
Disfigurement. That which impairs or injures the beau
ty, symmetry, or appearance of a person or thing; that 
which renders unsightly, misshapen, or imperfect, or 
deforms in some manner. See Maim. 
Disfranchise. To deprive of the rights and privileges of 
a free citizen; to deprive of chartered rights and immu
nities; to deprive of any franchise, as of the right of 
voting in elections, etc. In any election where the party 
system furnishes the means by which the citizen's right 
of suffrage is made effective, denial of his party's right 
to participate in the election accomplishes the "disfran
chisement of voters" or compels them, if they vote, to 
vote for representatives of political parties other than 
that to which they belong, and the deprivation of the 
right of selection is a deprivation of the right of fran
chise. Communist Party of United States of America v. 
Peek, 20 Cal.2d 536, 127 P.2d 889, 894. 
Disfranchisement. The act of disfranchising. The act 
of depriving a member of a corporation of his right as 
such, by expulsion. It differs from amotion (q.v.) which 
is applicable to the removal of an officer from office, 
leaving him his rights as a member. 
In a more popular sense, the taking away of the 
elective franchise (that is, the right of voting in public 
elections) from any citizen or class of citizens. 
Disgavel /disgrev;)lI. In English law, to deprive lands of 
that principal quality of gavelkind tenure by which they 
descend equally al!1ong all the sons of the tenant. 
Disgrace. Ignominy; shame; dishonor. 
Disgrading. In old English law, the depriving of an 
order or dignity. 
Disguise, v. I d;)skayz/. To change the guise or appear
ance of, especially to conceal by unusual dress; to hide 
by a counterfeit appearance. To obscure the existence 
or true state or character of a person or thing. 
Disguise, n. A counterfeit habit; a dress intended to 
conceal the person who wears it. Anything worn upon 
the person with the intention of so altering the wearer's 
appearance that he shall not be recognized by those 
familiar with him, or that he shall be taken for another 
person. 
Disherison I dishe(h)r;)z;)n/. Disinheritance; depriving 
one of an inheritance. Obsolete term. 
Disheritor Idishehr;)t;)r/. One who disinherits, or puts 
another out. of his freehold. Obsolete term. 
Dishonesty. Disposition to lie, cheat, deceive, or de
fraud; untrustworthiness; lack of integrity. Lack of 
honesty, probity or integrity in principle; lack of fair-
468 
ness and straightforwardness; disposition to defraud, 
deceive or betray. Tucker v. Lower, 200 Kan. 1, 434 
P.2d 320, 324. 
Dishonor. To refuse to accept or pay a draft or to pay a 
promissory note when duly presented. An instrument is 
dishonored when a necessary or optional presentment is 
duly made and due acceptance or payment is refused, or 
cannot be obtained within the prescribed time, or in case 
of bank collections, the instrument is seasonably re
turned by the midnight deadline; or presentment is 
excused and the instrument is not duly accepted or paid. 
U.C.C. § 3-507(1); § 4-2 10. Includes the insurer of a 
letter of credit refusing to pay or accept a draft or 
demand for payment. For bank's liability for wrongful 
dishonor, see U.C.C. § 4-402. See also Notice of dishon
or; Protest. 
As respects the flag, to deface or defile, imputing a 
lively sense of shaming or an equivalent acquiescent 
callousness. State v. Schlueter, 127 N.J.L. 496, 23 A.2d 
249, 251. 18 U.S.C.A. § 700. See Deface; Defile. 
Disincarcerate IdisiI]kars;)reyt/. To set at liberty, to 
free from prison. 
Disinfected. Made free from injurious or contagious 
diseases. Immunization. 
Disinflation. Slowing down of rate at which prices 
increase. Compare Deflation. 
Disinherison Idisinhe(h)r;)z;)n/. In the civil law, the act 
of depriving a forced heir of the inheritance which the 
law gives him. Disinherison is a testamentary disposi
tion and not a mere penalty for lack of filial respect, but 
such a testamentary disposition is not self-operative "and 
something more than its mere appearance in a will is 
required to give it effect. 
Disinheritance I disinhehr;)d;)ns/. The act by which the 
owner of an estate deprives a person, who would other
wise be his heir, of the right to inherit it. 
Disinter Idisint�r/. To exhume, unbury, take out of the 
grave. 
Disinterested. Not concerned, in respect to possible 
gain or loss, in the result of the pending proceedings or 
transactions. Not having any interest in matter re
ferred to or in controversy; free from prejudice or par
tiality; impartial or fair minded; without pecuniary 
interest; not previously interested; not biased or preju
diced. Schipper & Block, Inc. v. Carson Pirie Scott & 
Co., 122 Ill.App.2d 34, 256 N.E.2d 854, 857. Compare 
Bias. 
Disinterested witness. One who has no interest in the 
cause or matter in issue, and who is lawfully competent 
to testify. 
Disintermediation. When free market interest rates 
exceed the regulated interest ceiling for time deposits, 
some depositors withdraw their funds and invest them 
elsewhere at a higher interest rate (e.g. in U.S. Treasury 
bills). This process is known as "disintermediation." 
Disjunctim Id;)sj�I]kt;)m/. Lat. In the civil law, sepa
rately; severally. The opposite of conjunctim (q.v.).

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Disjunctive allegation. A statement in a pleading or 
indictment which expresses or charges a thing alterna
tively, with the conjunction "or"; for instance, an aver
ment that defendant "murdered or caused to be mur
dered", etc., would be of this character. 
Disjunctive allegations of indictment are those which 
charge that defendant did one thing or another, and 
whenever the word "or" would leave averment un
certain as to which of two or more things is meant, it is 
inadmissible. Austin v. State, Okl., 419 P.2d 569. 
In civil actions, relief in the alternative or of several 
different types may be demanded. Fed.R.Civ.P. 8(a). 
See Alternative pleading. 
Disjunctive term. One which is placed between two 
contraries, by the affirming of one of which the other is 
taken away; it is usually expressed by the word "or". 
Dislocation. To put out of proper place. 
Disloyal. Not true to; unfaithful. 
Dismes Idaymz/. Tenths; tithes (q.v .). The original 
form of "dime," the name of the American coin. 
Dismiss. To send away; to discharge; to discontinue; to 
dispose of; to cause to be removed temporarily or per
manently; to relieve from duty. To dismiss an action or 
suit without any further consideration or hearing. See 
also Discharge. 
Dismissal. An order or judgment finally disposing of an 
action, suit, motion, etc., without trial of the issues 
involved. Such may be either voluntary or involuntary. 
Fed.R. Civil P. 41. 
A release or discharge from employment. 
Involuntary dismissal. Under rules practice, may be 
accomplished on court's own motion for lack of prosecu
tion or on motion of defendant for lack of prosecution or 
failure to introduce evidence of facts on which relief 
may be granted. Fed.R. Civil P. 41(b). 
Voluntary dismissal. Under rules practice, may be ac
complished by plaintiff without leave of court if filed 
before answer or by stipulation signed by all parties 
after answer is filed. Fed.R. Civil P. 41(a). 
Dismissal and nonsuit. Termination of case because of 
plaintiffs failure to prosecute or plaintiffs desire to 
discontinue. 
Dismissal compensation. The payment of a specific 
sum, made by employer to employee for permanently 
terminating employment. Also called severance or sep
aration pay. 
Dismissal for cause. See For cause. 
Dismissal without prejudice. Term meaning dismissal 
without prejudice to the right of the complainant to sue 
again on the same cause of action. The effect of the 
words "without prejudice" is to prevent the decree of 
dismissal from operating as a bar to a subsequent suit. 
Dismissal with prejudice. Term meaning an adjudica
tion on the merits, and final disposition, barring the 
right to bring or maintain an action on the same claim 
or cause. It is res judicata as to every matter litigated. 
DISORDERLY HOUSE 
Dismissed for want of equity. A phrase used to indi
cate a decision on the merits, as distinguished from one 
based upon some formal defect. The dismissal may be 
because the averments of complainant's bill have been 
found untrue in fact, or because they are insufficient to 
entitle complainant to the relief sought. Reinman v. 
Little Rock, 237 U.S. 171, 35 S.Ct. 511, 513, 59 L.Ed. 900. 
Dismortgage I dismorg;}j I. To redeem from mortgage. 
See Redemption. 
Disobedience. See Civil disobedience; Civil disorder. 
Disobedient child. Child who may be adjudicated delin
quent in some jurisdictions under law governing stub
born children. May be subject of petition as child in 
need of social services. Child who wilfully refuses to 
honor requests of parents or legal guardian or other 
person in whose custody he is. See also Delinquent child. 
Disorder. Turbulent or riotous behavior; immoral or 
indecent conduct. The breach of the public decorum 
and morality. See also Breach of the peace; Civil disobe
dience; Civil disorder; Riot; Unla wful assembly. 
A slight, partial, and temporary physical ailment. 
Pacific Mut. Life Ins. Co. v. McCombs, 188 Ark. 52, 64 
S.W.2d 333. 
Disorderly. Contrary to the rules of good order and 
behavior; violative of the public peace or good order; 
turbulent, riotous, or indecent. 
Disorderly conduct. A term of loose and indefinite 
meaning (except when defined by statutes), but signify
ing generally any behavior that is contrary to law, and 
more particularly such as tends to disturb the public 
peace or decorum, scandalize the community, or shock 
the public sense of morality. An offense against public 
morals, peace or safety. State v. Cherry, 185 Neb. 103, 
173 N.W.2d 887, 888. Disorderly conduct statutes must 
sufficiently specify the prohibited conduct or they may 
be held to be unconstitutional. Baker v. Bindner, D.C. 
Ky., 274 F.Supp. 658. 
A person is guilty of disorderly conduct if, with pur
pose to cause public inconvenience, annoyance or alarm, 
or recklessly creating a risk thereof, he: (a) engages in 
fighting or threatening, or in violent or tumultuous 
behavior; or (b) makes unreasonable noise or offensively 
coarse utterance, gesture or display, or addresses abu
sive language to any person present; or (c) creates a 
hazardous or physically offensive condition by any act 
which serves no legitimate purpose of the actor. Model 
Penal Code, § 250.2. 
See also Breach of the peace. 
Disorderly house. House or place where residents or 
inhabitants behave in such a manner as to become a 
nuisance to the neighborhood. One where acts are 
performed which tend to corrupt morals of community 
or promote breaches of peace. Payne v. U. S., D.C.Mun. 
App., 171 A.2d 509, 511. It has a wide meaning, and 
includes bawdy houses, gambling houses, houses of pros
titution and places of a like character. At common law, 
it was misdemeanor to keep such house. Burgess v. 
Johnson, 223 Ga. 427, 156 S.E.2d 78. Under current

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DISORDERLY HOUSE 
laws, such activity, generally, would constitute a breach 
of the peace or disorderly conduct. The specific acts (e.g. 
prostitution) might also be crimes. 
Disorderly persons. Such as are dangerous or hurtful 
to the public peace and welfare by reason of their 
misconduct or vicious habits, and are therefore amena
ble to police regulation. The phrase is chiefly used in 
statutes, and the scope of the term depends on local 
regulations. One who violates peace and good order of 
society. 
Disorderly picketing. See Un lawful picketing. 
Disorientation. Inability to identify time, place or sur
roundings. 
Disparagare Idisprer;)geriy/. In old English law, to 
bring together those that are unequal (dispares conferre); 
to connect in an indecorous and unworthy manner; to 
connect in marriage those that are unequal in blood and 
parentage. 
Disparagatio Idisprer;)geysh(iy)ow/. In old English law, 
disparagement. Hreredes maritentur absque disparaga
tione, heirs shall be married without disparagement. 
Disparagation Idisprer;)geysh;)n/. L. Fr. Disparage
ment; the matching an heir, etc., in marriage, under his 
or her degree or condition, or against the rules of 
decency. 
Disparage Id;)sprer;)j/. To connect unequally; to match 
unsuitably. To discredit one's person or property. 
Disparagement Id;)sprer;)jm;)ntl. In old English law, an 
injury by union or comparison with some person or 
thing of inferior rank or excellence. To discredit by 
marriage below one's class. Marriage without dispar
agement was marriage to one of suitable rank and char
acter. 
Matter which is intended by its publisher to be under
stood or which is reasonably understood to cast doubt 
upon the existence or extent of another's property in 
land, chattels or intangible things, or upon their quality. 
A falsehood that tends to denigrate the goods or 
services of another party is actionable in a common law 
suit for disparagement. The same conduct is also ac
tionable under certain state statutes and can form the 
basis for an F.T.C. complaint. There is no private 
federal cause of action for disparagement under the 
Lanham Act. 
Disparagement of goods. A statement about a compet
itor's goods which is untrue or misleading and is made 
to influence or tends to influence the public not to buy. 
Aerosonic Corp. v. Trodyne Corp., 402 F.2d 223, 231. 
See Disparagement. 
Disparagement of title. Actionably tortious detraction 
from title for which person may be required to respond 
in damages. Injurious falsehood in which aspersion is 
cast on person's title to property. Publication made 
without privilege or justification of matter that is un
true and disparaging to another's property in land, 
chattels or intangible things under such circumstances 
as would lead reasonable man to foresee that conduct of 
470 
third person as purchaser or lessee thereof might be 
determined thereby and results in pecuniary loss from 
impairment of vendability thus caused. Hill v. Allan, 
259 Cal.App.2d 470, 66 Cal.Rptr. 676, 689. 
Disparaging instructions. Jury charge which tends to 
detract or defame person or party to litigation. 
Disparate treatment. Differential treatment of employ
ees or applicants on the basis of their race, color, reli
gion, sex, national origin, handicap, or veteran's status. 
Rich v. Martin Marietta Corp., D.C.Colo., 467 F.Supp. 
587, 608. 
Disparity. Marked difference in quantity or quality 
between two things or among many things. 
Dispatch. A sending off, completion or settlement with 
speed. 
In maritime law, diligence, due activity, or proper 
speed in the discharge of a cargo; the opposite of delay. 
Customary dispatch is such as accords with the rules, 
customs, and usages of the port where the discharge is 
made. Dispatch money is in the nature of a reward to 
charterer of ship for loading or unloading in shorter 
time than provided for or than stipulated as "lay days", 
The West Nosska, D.C.N.Y., 2 F.Supp. 547. Quick dis
patch is speedy discharge of cargo without allowance for 
the customs or rules of the port or for delay from the 
crowded state of the harbor or wharf. 
Dispauper I dispop;)r I. When a person, by reason of his 
poverty, is admitted to sue in forma pauperis, and after
wards, before the suit be ended, acquires any lands, or 
personal estate, or is guilty of anything whereby he is 
liable to have this privilege taken from him, then he 
loses the right to sue in forma pauperis, and is said to be 
dispaupered. 
Dispel. To drive away by scattering, to clear away, to 
banish, to dissipate. 
Dispensary. Place where a drug is prepared or distrib
uted. 
Dispensatio est mali prohibiti provida relaxatio, uti
litate seu necessitate pensata; et est de jure domino 
regi concessa, propter impossibilitatem prrevidendi 
de omnibus particularibus Idispenseysh(iy)ow est 
mrelay pr;)hib;)tay pr;)vayd;) relrekseysh(iy )ow, 
yuwtil;)teytiy s(y)uw n;)Ses;)teytiy penseyt;), et est diy 
juriy dom;)now riyjay k;)nses;), propt;)r impos;)bil;)teyt;)m 
priyv;)denday diy omn;)b;)s partiky;)ler;)b;)s/. A dispensa
tion is the provident relaxation of a malum prohibitum 
weighed from utility or necessity; and it is conceded by 
law to the king on account of the impossibility of fore
knowledge concerning all particulars. 
Dispensatio est vulnus, quod vulnerat jus commune 
Idispenseysh(iy)ow est v�ln;)s kwod v�ln;)rret j�s 
k;)myuwniy/. A dispensation is a wound, which wounds 
common law. 
Dispensation. An exemption from some laws; a permis
sion to do something forbidden; an allowance to omit 
something commanded; the canonistic name for a li
cense. A relaxation of law for the benefit or advantage

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471 
of an individual. In the United States, no power exists, 
except in the legislature, to dispense with law; and then 
it is not so much a dispensation as a change of the law. 
See also Exemption. 
Dispense. Etymologically, "dispense" means to weigh 
out, pay out, distribute, regulate, manage, control, etc., 
but when used with "with," it has, among other mean
ings, that of "doing without," and "doing away with," 
being synonymous with "abolish." 
Dispersonare / disp�rs;meriy / . To scandalize or dispar
age. 
Displace. To crowd out; to take the place of. Ford" v. 
Department of Water and Power of City of Los Angeles, 
4 Cal.App.2d 526, 41 P.2d 188, 189. 
Displaced person. Person left homeless in his own 
country because of war or for other reason. 
Displacement. Shifting of emotional emphasis from one 
object to another as a means of disguising or avoiding 
unacceptable ideas or tendencies. 
Display. An opening or unfolding, exhibition, manifes
tation, ostentatious show, exhibition for effect, parade. 
20th Century Lites v. Goodman, 64 Cal.App.2d Supp. 
938, 149 P.2d 88, 9l. 
In copyright law, to "display" a work means to show a 
copy of it, either directly or by means of a film, slide, 
television image, or any other device or process or, in 
the case of a motion picture or other audiovisual work, 
to show individual images nonsequentially. Copyright 
Act, 17 U.S.C.A. § 10l. 
As applied to printing, means a varying arrangement 
of lines, as by the use of unequal lengths or different 
styles or sizes of type faces; also matter thus printed. 
Display advertising means advertising not under specific 
headings in newspapers, magazines and trade papers. 
Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 
80, 85. 
Dispono / disp6wnow /. Lat. To dispose of, grant, or 
convey. Disponet, he grants or alienates. Jus disponen
di, the right of disposition, i.e., of transferring the title 
to property. 
Disposable earnings. That portion of person's income 
which he is free to spend or invest as he sees fit after 
payment of taxes and other obligations. 
Disposable portion. That portion of a man's property 
which he is free to dispose of by will to beneficiaries 
other than his wife and children. By the ancient com
mon law, this amounted to one-third of his estate if he 
was survived by both wife and children. 2 Bl.Comm. 
492. In the civil law (by the Lex Falcidia) it amounted 
to three-fourths. 
Disposal. Sale, pledge, giving away, use, consumption or 
any other disposition of a thing. To exercise control 
over; to direct or assign for a use; to pass over into the 
control of someone else; to alienate, bestow, or part 
with. 
DISPUTABLE PRESUMPTION 
Dispose of. To alienate or direct the ownership of 
property, as disposition by will. Used also of the deter
mination of suits. To exercise finally, in any manner, 
one's power of control over; to pass into the control of 
someone else; to alienate, relinquish, part with, or get 
rid of; to put out of the way; to finish with; to bargain 
away. Often used in restricted sense of "sale" only, or 
so restricted by context. 
Disposing capacity or mind. These are alternative or 
synonymous phrases in the law of wills for "sound 
mind," and "testamentary capacity" (q.v.). 
Disposition. Act of disposing; transferring to the care 
or possession of another. The parting with, alienation 
of, or giving up property. See Bequeath; Testamentary 
(Testamentary disposition). 
The final settlement of a matter, and with reference 
to decisions announced by court, judge's ruling is com
monly referred to as disposition, regardless of level of 
resolution. Western Line Consol. School Dist. v. Conti
nental Cas. Co., N.D.Miss., 632 F.Supp. 295, 303. 
In criminal procedure, the sentencing or other final 
settlement of a criminal case. 
With respect to a mental state, means an' attitude, 
prevailing tendency, or inclination. 
Disposition hearing. Judicial proceeding in which a 
criminal defendant is sentenced or otherwise disposed 
of. See Sentencing. 
Disposition without trial. The sentencing or other 
treatment of a criminal defendant who has pleaded 
guilty or admitted to sufficient facts for finding of guilty 
without a trial on the merits. 
Dispositive facts. Jural facts, or those acts or events 
that create, modify or extinguish jural relations. 
Dispossess. To oust a person from land by legal process 
(e.g., eviction by landlord). To eject, to exclude from 
possession of realty. See Eviction; Forcible entry and 
detainer; Process (Summary process). 
Dispossession. Ouster; a wrong that carries with it the 
amotion of possession. An act whereby the wrongdoer 
gets the actual occupation of the land or hereditament. 
It includes abatement, intrusion, disseisin, discontin
uance, deforcement. 
Dispossess proceedings. Summary process by a land
lord to oust the tenant and regain possession of the 
premises for nonpayment of rent or other breach of the 
conditions of the lease. See also Ejectment; Eviction; 
Forcible entry and detainer; Process (Summary process). 
Disproportionate. Not pro rata or ratable. 
Disprove. To refute; to prove to be false or erroneous; 
not necessarily by mere denial, but by affirmative evi
dence to the contrary. 
Dispunishable. In old English law, not answerable. 
Not punishable; e.g. "This murder is dispunishable." 
Disputable presumption. A species of evidence that 
may be accepted and acted upon when there is no other 
evidence to uphold contention for which it stands; and

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DISPUTABLE PRESUMPTION 
when evidence is introduced supporting such contention, 
evidence takes place of presumption, and there is no 
necessity for indulging in any presumption. A rule of 
law to be laid down by the court, which shifts to the 
party against whom it operates the burden of evidence 
merely. City of Montpelier v. Town of Calais, 11 4 Vt. 5, 
39 A.2d 350, 356. See Presumption. 
Disputatio fori Idispyuwteysh(iy)ow foray/. In the civil 
law, discussion or argument before a court. 
Dispute. A conflict or controversy; a conflict of claims 
or rights; an assertion of a right, claim, or demand on 
one side, met by contrary claims or allegations on the 
other. The subject of litigation; the matter for which a 
suit is brought and upon which issue is joined, and in 
relation to which jurors are called and witnesses exam
ined. See Cause of action; Claim; Controversy; Justicia
ble controversy; Labor dispute. 
Disqualify. To divest or deprive of qualifications; to 
incapacitate; to render ineligible or unfit, as, in speak
ing of the "disqualification" of a judge by reason of his 
interest in the case, of a juror by reason of his holding a 
fixed preconceived opinion, or of a candidate for public 
office by reason of non-residence, lack of statutory age, 
previous commission of crime, etc. 
Disrate Idisreyt/. In maritime law, to deprive a seaman 
or petty officer of his "rating" or rank; to reduce to a 
lower rate or rank. 
Disrationare, or dirationare I di(s)reysh�meriy I. To jus
tify; to clear one's self of a fault; to traverse an indict
ment; to disprove. 
Disregard. To treat as unworthy of regard or notice; to 
take no notice of; to leave out of consideration; to 
ignore; to overlook; to fail to observe. 
Disregard of corporate entity. To treat a corporation 
as if it did not exist for tax or certain other liability 
purposes. In such event, each shareholder would ac
count for an allocable share of all corporate transactions 
possessing tax or other liability consequences. See also 
Piercing the corporate veil. 
Disrepair. The state of being in need of repair or 
restoration after decay or injury. 
Disrepute. Loss or want of reputation; ill character; 
disesteem; discredit. 
Disruptive conduct. Disorderly or contemptuous con
duct generally within the framework of a judicial or 
quasi judicial proceeding. See Contempt. 
Dissection I d�seksh�n/. The act of cutting into pieces 
an animal or vegetable for the purpose of ascertaining 
the structure and use of its parts. The anatomical 
examination of a dead body by cutting into pieces or 
exscinding one or more parts or organs. The process of 
separating tissues along their natural lines of separation 
from each other; the act of separating into constituent 
parts for the purpose of critical examination. 
Disseise I d�siyzl . To dispossess; to deprive. 
Disseisee Id�siyziy /. One who is wrongfully put out of 
possession of his lands; one who is disseised. 
472 
Disseisin I d�siyz�n/. Dispossession; a deprivation of 
possession; a privation of seisin; a usurpation of the 
right of seisin and possession, and an exercise of such 
powers and privileges of ownership as to keep out or 
displace him to whom these rightfully belong. It is a 
wrongful putting out of him that is seised of the free
hold, not, as in abatement or intrusion, a wrongful entry, 
where the possession was vacant, but an attack upon 
him who is in actual possession, and turning him out. It 
is an ouster from a freehold in deed, as abatement and 
intrusion are ousters in law. 
When one man invades the possession of another, and 
by force or surprise turns him out of the occupation of 
his lands, this is termed a "disseisin," being a depriva
tion of that actual seisin or corporal possession of the 
freehold which the tenant before enjoyed. In other 
words, a disseisin is said to be when one enters intend
ing to usurp the possession, and to oust another from 
the freehold. To constitute an entry a disseisin, there 
must be an ouster of the freehold, either by taking the 
profits or by claiming the inheritance. 
Equitable disseisin is where a person is wrongfully 
deprived of the equitable seisin of land, e.g., of the rents 
and profits. 
Disseisin by election is where a person alleges or 
admits himself to be disseised when he has not really 
been so. 
Disseisinam satis facit, qui uti non permittit posses
sorem, vel minus commode, licet omnino non expel
lat I d�siyz�n�m sret�s feys�t kway yuwtay non p�rmit�t 
powzesor�m, vel mayn�s kom�diy, lays�t omnaynow non 
�kspel�t /. He makes disseisin enough who does not 
permit the possessor to enjoy, or makes his enjoyment 
less beneficial, although he does not expel him altogeth
er. 
Disseisitrix I d�siyz�tr�ks /. A female disseisor; a dissei
soress. 
Disseisitus I d�siyz�t �s/. One who has been disseised. 
Disseisor I d�siyz�r I. One who puts another out of the 
possession of his lands wrongfully. A settled trespasser 
on the land of another. Flinn v. Blakeman, 254 Ky. 416, 
71 S.W.2d 961, 968. 
Disseisoress I d�siyz�r�sl . A woman who unlawfully 
puts another out of his land. 
Dissemble I d�semb�l/. To conceal by assuming some 
false appearance. 
Dissensus Id�sens�s /. Lat. In the civil law, the mutual 
agreement of the parties to a simple contract obligation 
that it shall be dissolved or annulled; technically, an 
undoing of the consensus which created the obligation. 
Dissent I d�sent/. Contrariety of opinion; refusal to 
agree with something already stated or adjudged or to 
an act previously performed. 
The term is most commonly used to denote the explic
it disagreement of one or more judges of a court with the 
decision passed by the majority upon a case before them. 
In such event, the non-concurring judge is reported as

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473 
"dissenting." A dissent may or may not be accompanied 
by a dissenting opinion. 
Ecclesiastical law. A refusal to conform to the rites and 
ceremonies of the established church. 
Dissenter. One who dissents. For shareholder dissenter 
rights, see Appraisal remedy. 
Dissentiente Id;:!senshiyEmtiy/d;:!simtiyentiy/. (Lat. dis
senting.) Used with the name or names of one or more 
judges, it indicates a dissenting opinion in a case. Ne
mine dis sentiente Inem;:!nay/. No one dissenting; unan
imous. 
Dissignare Idis;:!gneriy/. In old law, to break open a 
seal. 
Dissimulatione tollitur injuria. I d;:!simy;:!leyshiy6wniy 
t61;:!t;:!r injuriy;:!I . An injury is extinguished by the for
giveness or reconcilement of the party injured. 
Dissipate. To destroy or waste, as to expend funds 
foolishly. Also, to break up a crowd. See also Drain. 
Dissolute. Loosed from restraint, unashamed, lawless, 
loose in morals and conduct, recklessly abandoned to 
sensual pleasures, profligate, wanton, lewd, debauched. 
Dissolution. Act or process of dissolving; termination; 
winding up. In this sense it is frequently used in the 
phrase "dissolution of a partnership." See Partnership, 
below, this topic. 
Contracts. The dissolution of a contract is the cancella
tion or abrogation of it by the parties themselves, with 
the effect of annulling the binding force of the agree
ment, and restoring each party to his original rights. 
Corporation. The dissolution of a corporation is the 
termination of its legal existence. This may take place 
in several ways; as by act of the legislature, by surren
der or forfeiture of its charter; by expiration of its 
charter by lapse of time; by proceedings for winding it 
up under the law; by loss of all its members or the 
reduction below the statutory limit; by bankruptcy. 
Bruun v. Katz Drug Co., 351 Mo. 731, 173 S.W.2d 906, 
909. 
Dissolution of a corporation can be either voluntary 
(initiated and approved by board of directors and share
holders) or involuntary. Involuntary dissolutions may 
be "administrative" (e.g., by state for failure of corpora
tion to file reports or pay certain taxes) or "judicial" 
(e.g., by attorney general for abuse of corporate authori
ty; by shareholders because of deadlock in manage
ments; by unpaid creditors) or can result from bank
ruptcy of corporation. Procedures for corporate dissolu
tion are usually provided for in state statutes. See e.g. 
Rev.Model Bus.Corp.Act § 14.01 et seq. 
See also Articles of dissolution; Liquidation. 
Marriage. The act of terminating a marriage; divorce; 
but the term does not include annulment. Deihl v. 
Jones, 170 Tenn. 217, 94 S.W.2d 47, 48. See Divorce. 
Partnershi p. The dissolution of a partnership is the 
change in the relation of the partners caused by any 
partner ceasing to be associated in the carrying on as 
DISTINCTIVENESS 
distinguished from the winding up of the business. Uni
form Partnership Act, § 29. 
Dissolution of parliament. The crown may dissolve 
parliament either in person or by proclamation; the 
dissolution is usually by proclamation, after a proroga
tion. 
Dissolve. To terminate; abrogate; cancel; annul; disin
tegrate. To release or unloose the binding force of 
anything. As to "dissolve a corporation," see Dissolution. 
Dissolving bond. A bond given to obtain the dissolution 
of a legal writ or process, particularly an attachment or 
an injunction, and conditioned to indemnify the opposite 
party or to abide the judgment to be given. 
Dissuade. In criminal law, to advise and procure a 
person not to do an act. 
To dissuade a witness from giving evidence against a 
person indicted is an indictable offense at common law. 
Distance. A straight line along a horizontal plane from 
point to point and is measured from the nearest point of 
one place to the nearest point of another. 
Distill. To subject to a process of distillation, i.e., vapor
izing the more volatile parts of a substance and then 
condensing the vapor so formed. In law, the term is 
chiefly used in connection with the manufacture of 
intoxicating liquors. 
Distilled liquor or distilled spirits. A term which 
includes all potable alcoholic liquors obtained by the 
process of distillation (such as whisky, brandy, rum, and 
gin). 
Distiller. One who produces distilled spirits (i.e. alcohol
ic liquors) or who brews or makes mash, wort, or wash, 
fit for distillation or for the production of spirits, or who, 
by any process of evaporization, separates alcoholic spir
it from any fermented substance. 
Distillery. A place or building where alcoholic liquors 
are distilled or manufactured. 
Distinct. Clear to the senses or mind; easily perceived 
or understood; plain; unmistakable. Evidently not 
identical; observably or decidedly different. 
Distinguished by nature or station; not the same; 
different in the place or the like; separate; individual; 
that which is capable of being distinguished; actually 
divided or apart from other things. Gavin v. Webb, 
Tex.Civ.App., 99 S.W.2d 372, 379. 
Distincte et aperte I d;:!stiIJktiy et ;:!p;)rtiy I. In old Eng
lish practice, distinctly and openly. Formal words in 
writs of error, referring to the return required to be 
made to them. 
Distinctively. Characteristically, or peculiarly, but not 
necessarily exclusively. 
Distinctiveness. An essential element of a device 
claimed to be a trademark is that it identify the goods of 
a particular merchant and distinguish them from the 
goods of others. A word, symbol, shape, or color serving 
this purpose is said to be distinctive. Certain marks are 
inherently distinctive while others only acquire distinc-

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DISTINCTIVENESS 
tiveness over time (see Secondary meaning). A distinc
tive mark may lose its distinctiveness over time and 
become generic. 
Distinguish. To point out an essential difference; to 
prove a case cited as applicable, inapplicable. 
Distinguishing mark. A birth mark, scar, or other like 
feature which distinguishes a person. A mark on a 
ballot which takes away its secrecy. Any deliberate 
marking of ballot by voter that is not made in attempt 
to indicate his choice of candidates and which is also 
effective as mark by which his ballot may be distin
guished. 
In reference to trademark law, see Distinctiveness. 
Distort. To twist out of natural or regular shape; to 
twist aside physically; to force or put out of true pos
ture; to wrest, or deform. 
Distracted person. A term used in the statutes of 
certain states to express a state of insanity. 
Distractio Id:;,strreksh(iy)ow/. Lat. In the civil law, a 
separation or division into parts; also an alienation or 
sale. Sometimes applied to the act of a guardian in 
appropriating the property of his ward. 
Distractio bonorum Id:;,strreksh(iy)ow b:;,nor:;,m/. The 
sale at retail of the property of· an insolvent estate, 
under the management of a curator appointed in the 
interest of the creditors, and for the purpose of realizing 
as much as possible for the satisfaction of their claim. 
Distraction rule. If plaintiffs attention is diverted from 
known danger by a sufficient cause, under this rule the 
question of contributory negligence is for jury. 
Distractio pignoris I d:;,strreksh(iy )ow pignor:;,sl. The 
sale of a thing pledged or hypothecated, by the creditor 
or pledgee, to obtain satisfaction of his claim on the 
debtor's failure to pay or redeem. 
Distrahere I d:;,strey(h):;,riy I. To sell; to draw apart; to 
dissolve a contract; to divorce. 
Distrain. To take as a pledge property of another, and 
keep it until he performs his obligation or until the 
property is replevied by the sheriff. Remedy used to 
secure an appearance in court, payment of rent, per
formance of services, etc. Also, any detention of person
al property, whether lawful or unlawful, for any pur
pose. See Distraint; Distress. 
Distrainer or distrainor. He who seizes property under 
a distress. 
Distraint. Seizure; the act of distraining or making a 
distress. The inchoate right and interest which a land
lord has in the property of a tenant located on the 
demised premises. Upon a tenant's default, a landlord 
may in some jurisdictions distrain upon the tenant's 
property, generally by changing the locks and giving 
notice, and the landlord will then have a lien upon the 
goods. The priority of the lien will depend on local law. 
See Distress. 
474 
Distress. A common-law right of landlord, now regulat
ed by statute, to seize a tenant's goods and chattels in a 
nonjudicial proceeding to satisfy an arrears of rent. 
The taking of goods and chattels out of the possession 
of a wrong-doer into the custody of the party injured to 
procure a satisfaction for a wrong committed; as for 
non-payment of rent. The taking of personal property 
by way of pledge, to enforce the performance of some
thing due from the party distrained upon. Hall v. 
Marshall, 145 Or. 221, 27 P.2d 193. The taking of a 
defendant's goods, in order to compel an appearance in 
court. 
Certain state statutes, insofar as they authorize dis
tress for rents by landlords, have been held to be uncon
stitutional. See e.g. Van Ness Industries v. Claremont 
Painting, 129 N.J.Super. 507, 324 A.2d 102. 
The seizure of personal property to enforce payment 
of taxes, to be followed by its public sale if the taxes are 
not voluntarily paid; also the thing taken by distrain
ing, i.e. that which is seized to procure satisfaction. 
See Distraint; Landlord's warrant. 
Distress infinite. At common law, one that had no 
bounds with regard to its quantity, and could be re
peated from time to time, until the stubbornness of the 
party was conquered. Such were distresses for realty or 
suit of court, and for compelling jurors to attend. 3 
Bl.Comm. 231. 
Distress warrant. A writ authorizing an officer to make 
a distraint; particularly, a writ authorizing the levy of a 
distress on the chattels of a tenant for non-payment of 
rent. 
A power of attorney by which landlord delegates exer
cise of his right to his duly authorized agent. In re 
Koizim, D.C.N.J., 52 F.Supp. 357, 358. 
Grand distress, writ of A writ formerly issued in Eng
land in the real action of quare impedit, when no ap
pearance had been entered after the attachment; it 
commanded the sheriff to distrain the defendant's lands 
and chattels in order to compel appearance. It is no 
longer used, 23 & 24 Vict., c. 126, § 26, having abolished 
the action of quare impedit, and substituted for it the 
procedure in an ordinary action. 
Second distress. A supplementary distress for rent in 
arrear, allowed by law in some cases, where the goods 
seized under the first distress are not of sufficient value 
to satisfy the claim. 
Distress and danger. The "distress" and "danger" to 
which a ship needs to be exposed to entitle its rescuer to 
salvage need not be actual or immediate, or the danger 
imminent and absolute. It is sufficient if at the time 
the assistance is rendered, the ship has encountered any 
damage or misfortune which might possibly expose her 
to destruction if the services were not rendered, or if a 
vessel is in a situation of actual apprehension though 
not of actual danger. 
Distressed goods. Goods sold at a distressed sale.

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475 
Distressed property. Property that must be sold be
cause of mortgage foreclosure or on probate of insolvent 
estate. 
Distressed sale. Form of liquidation sale (e.g. "going out 
of business" sale) in which the seller receives less for his 
goods than he would under normal selling conditions. 
Distributable net income (DNI). The measure that 
limits the amount of the distributions from estates and 
trusts that the beneficiaries thereof will have to include 
in income. Also, DNI limits the amount that estates 
and trusts can claim as a deduction for such distribu
tions. I.R.C. § 643(a). 
Distribute. To deal or divide out in proportion or in 
shares. See Distribution. 
In criminal law, a person "distributes" a dangerous 
drug when he sells, transfers, gives or delivers to anoth
er, or leaves, barters or exchanges with another, or 
offers or agrees to do the same. State v. Schofill, 63 
Haw. 77, 621 P.2d 364, 368. 
Distributee / d�stribyuwtiy /. An heir; a person entitled 
to share in the distribution of an estate. This term is 
used to denote one of the persons who is entitled, under 
the statute of distributions, to the personal estate of one 
who is dead intestate. See also Beneficiary. 
Distribution. The giving out or division among a num
ber, sharing or parceling out, allotting, dispensing, ap
portioning. 
Corporate. A direct or indirect transfer of money or 
other property (except its own shares) or incurrence of 
indebtedness by a corporation to or for the benefit of its 
shareholders in respect of any of its shares. A distribu
tion may be in the form of a declaration or payment of a 
dividend; a purchase, redemption, or other acquisition 
of shares; a distribution of indebtedness; or otherwise. 
Rev. Model Bus.Corp. Act, § 1.40. 
Partnership. A payment by a partnership to a partner. 
The payment may be in the form of cash or property. A 
payment to a partner may be out of current earnings or 
it may be an advance against future earnings to provide 
cash flow to the partner. A distribution may also con
sist of the partners' capital in the event of the partners' 
liquidation. I.R.C. § 731. 
Probate. The apportionment and division, under au
thority of a court, of the remainder of the estate of an 
intestate, after payment of the debts and charges, 
among those who are legally entitled to share in the 
same. See Distributive share. 
Securities offering. A public offering of securities of an 
issuer, whether by an underwriter, statutory underwrit
er or by the issuer itself. Such offering may be con
trolled, i.e. an offering to the public of securities by 
selling stockholders or an issuer through a broker-dealer 
acting as an underwriter for such persons pursuant to a 
formal underwriting arrangement; or uncontrolled, i.e. 
an offering to the public of securities by selling stock
holders on a random basis through any number of 
brokers who are willing to assist such persons; or an 
DISTRIBUTOR 
offering to the public by such persons without the use of 
a broker. 
Statutes of distribution. State laws prescribing the 
manner of the distribution of the estate of an intestate 
among his heirs or relatives. 
Trust. The amount paid or credited to the beneficiaries 
of a trust. The payment may be in the form of cash or 
property and is generally income to the beneficiary. 
LR.e. § 643(a). 
Distribution in kind. A transfer of property "as is." If, 
for example, a corporation distributes land to its share
holders, a distribution in kind has taken place. A sale 
of land followed by a distribution of the c�h proceeds 
would not be a distribution in kind of the land. See also 
Like-kind exchange. 
Distribution in liquidation. Distribution of assets 
upon dissolution of corporation. Liquidating dividend is 
amount distributed in complete or partial liquidation of 
corporation and such amount is treated as in full pay
ment for the stock of the corporation. LR.C. § 331(a). 
Compare Nonl iquidating distribution. 
Distributive. That which exercises or accomplishes dis
tribution; that which apportions, divides, and assigns in 
separate items or shares. 
Distributive clause. That provision in trust which gov
erns distribution of income and ultimate distributions or 
gifts over. 
Distributive deviation. Distribution of principal to in
come beneficiaries for whom income is inadequate, with
out the consent of the remaindermen who are entitled to 
receive the entire principal at a later time under the 
terms of the trust. 
Distributive finding of the issue. The jury are bound 
to give their verdict for that party who, upon the evi
dence, appears to them to have succeeded in establishing 
his side of the issue. But there are cases in which an 
issue may be found distributively, i.e., in part for plain
tiff, and in part for defendant. Thus, in an action for 
goods sold and work done, if the defendant pleaded that 
he never was indebted, on which issue was joined, a 
verdict might be found for the plaintiff as to the goods, 
and for the defendant as to the work. See also Compara
tive negligence. 
Distributive justice. See Justice. 
Distributive share. The share or portion which a given 
heir receives on the legal distribution of an intestate 
estate; or from a dissolved partnership. Helvering v. 
Enright's Estate, 312 U.S. 636, 61 S.Ct. 777, 781, 85 
L.Ed. 1093. Sometimes, by an extension of meaning, the 
share or portion assigned to a given person on the 
distribution of any estate or fund, as, under an assign
ment for creditors or under insolvency proceedings. 
Distributor. Any individual, partnership, corporation, 
association, or other legal relationship which stands 
between the manufacturer and the retail seller in pur
chases, consignments, or contracts for sale of consumer 
goods. A wholesaler, jobber or other merchant middle-

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DISTRIBUTOR 
man authorized by a manufacturer or supplier to sell 
chiefly to retailers and commercial users. Aaron E. 
Levine & Co., Inc. v. Calkraft Paper Co., D.C.Mich., 429 
F.Supp. 1039, 1046. See also Dual distributor. 
District. One of the territorial areas into which an 
entire state or country, county, municipality or other 
political subdivision is divided, for judicial, political, 
electoral, or administrative purposes. State ex reI. 
Schur v. Payne, 57 Nev. 286, 63 P.2d 921, 925. 
The circuit or territory within which a person may 'be 
compelled to appear. Circuit of authority; province. 
As to Fire; Judicial; Land; Levee; Metropolitan; Miner
ai; Mining; Road; School; and Tax (districts), see those 
titles. 
Congressional district. Geographical district of state 
which may send (vote) a representative to U.S. Congress. 
District attorney. Under the state governments, the 
prosecuting officer who represents the state in each of 
its judicial districts. Also, the prosecuting officer of the 
United States government in each of the federal judicial 
districts. In some states, where the territory is divid
ed, for judicial purposes, into sections called by some 
other name than "districts ," the same officer is denom
inated "prosecuting attorney", "county attorney" or 
"state's attorney." See also Uni ted States Attorney; 
Prosecutor. 
District clerk. The clerk of a district court of either a 
state or the United States. 
District courts. Each state is comprised of one or more 
federal judicial districts, and in each district there is a 
district court. 28 U.S.C.A. § 81 et seq. The United 
States district courts are the trial courts with general 
Federal jurisdiction over cases involving federal laws or 
offenses and actions between citizens of different states. 
Each State has at least one district court, though many 
have several judicial districts (e.g. northern, southern, 
middle districts) or divisions. There is also a United 
States district court in the District of Columbia. In 
addition, the Commonwealth of Puerto Rico has a Unit
ed States district court with jurisdiction corresponding 
to that of district courts in the various States. Only one 
judge is usually required to hear and decide a case in a 
district court, but in some kinds of cases it is required 
that three judges be called together to comprise the 
court (28 U.S.C.A. § 2284). In districts with more than 
one judge, the judge senior in commission who has 
not reached his seventieth birthday acts as the chief 
judge. See Diversity of citizenship; Federal question juris
diction. 
Also, name for inferior state courts of record having 
general jurisdiction. 
District judge. The judge of a United States district 
court; also, in some states, the judge of a district court 
of the state. 
District parishes. Ecclesiastical divisions of parishes in 
England, for all purposes of worship, and for the celebra
tion of marriages, christenings, churchings, and burials, 
formed at the instance of the queen's commissioners for 
building new churches. 
476 
Legislative district. Geographical district which may 
send (vote) a representative to the state legislature. 
Districting. Term refers to defining lines of electoral 
districts. Moolenaar v. Todman, D.C. Virgin Islands, 317 
F.Supp. 226, 231. The establishment of the precise 
geographical boundaries of each such unit or constituen
cy. Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 
444, 209 N.E.2d 778, 779. See Apportionment; Reappor
tionment. 
Districtio / distriksh(iy )ow / . Lat. A distress; a dis
traint. 
District of Columbia. A territory situated on the Poto
mac river, and being the seat of government of the 
United States. It was originally ten miles square, and 
was composed of portions of Maryland and Virginia 
ceded by those states to the United States; but in 1846 
the tract coming from Virginia was retroceded. Legally 
it is neither a state nor a territory, but is made subject, 
by the Constitution, to the exclusive jurisdiction of Con
gress. 
Distringas / d�striIJg�s/ . In English practice, a writ for
merly directed to the sheriff of the county in which a 
defendant resided or had any goods or chattels, com
manding him to distrain upon the goods and chattels of 
the defendant for forty shillings, in order to compel his 
appearance. This writ issued in cases where it was 
found impracticable to get at the defendant personally, 
so as to serve a summons upon him. 
A distringas was also used in equity, as the first 
process to compel the appearance of a corporation aggre
gate. 
A form of execution in the actions of detinue and 
assise of nuisance. 
Distringas juratores / d�striIJg�s jur�t6riyz/ . In old 
English law, a writ commanding the sheriff to have the 
bodies of the jurors, or to distrain them by their lands 
and goods, that they may appear upon the day appoint
ed. It issued at the same time with the venire, though 
in theory afterwards, founded on the supposed neglect of 
the juror to attend. 
Distringas nuper vice comitem / d�striIJg�s n(y)uwp�r 
vaysiy k6m�t�m/. In old English law, a writ to distrain 
the goods of one who lately filled the office of sheriff, to 
compel him to do some act which he ought to have done 
before leaving the office; as to bring in the body of a 
defendant, or to sell goods attached under a fi. fa. 
Distringas vice comitem / d�striIJg�s vaysiy k6m�t�m /. 
In old English law, a writ of distringas, directed to the 
coroner, issued against a sheriff if he neglected to exe
cute a writ of venditioni exponas. 
Distringere / distrinj�riy / . In feudal and old English 
law, to distrain; to coerce or compel. 
Disturb. To throw into disorder; to move from a state of 
rest or regular order; to interrupt a settled state of; to 
throw out of course or order. 
Disturbance. Any act causing annoyance, disquiet, ag
itation, or derangement to another, or interrupting his 
peace, or interfering with him in the pursuit of a lawful

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and appropriate occupation or contrary to the usages of 
a sort of meeting and class of persons assembled that 
interferes with its due progress or irritates the assembly 
in whole or in part. See Disturbance of peace; Riot. 
At common law, a wrong done to an incorporeal 
hereditament by hindering or disquieting the owner in 
the enjoyment of it. Blackstone enumerated five types 
of such disturbances: Disturbances of franchises, com
mon, tenure, ways, and patronage. 3 Bl.Comm. 235. 
Disturbance of common. At common law, the doing 
any act by which the right of another to his common is 
incommoded or diminished; as where one who has no 
right of common puts his cattle into the land, or where 
one who has a right of common puts in cattle which are 
not commonable, or surcharges the common; or where 
the owner of the land, or other person, incloses or 
otherwise obstructs it. 
Disturbance of franchise. The disturbing or incom
moding a man in the lawful exercise of his franchise, 
whereby the profits arising from it are diminished. 3 
Bl.Comm. 236. 
Disturbance of patronage. The hindrance or obstruc
tion of a patron from presenting his clerk to a bene
fice. 3 Bl.Comm. 242. 
Disturbance of peace. Interruption of the peace, quiet, 
and good order of a neighborhood or community, partic
ularly by unnecessary and distracting noises. Conduct 
which tends to annoy all good citizens and which does in 
fact annoy anyone present not favoring it. Com. v. 
Orlando, Mass., 359 N.E.2d 810. In some jurisdictions 
(e.g. Calif.) term includes an affray. "Breach of the 
peace" and "disturbing the peace" are synonymous 
terms. People v. Cohen, 1 C.A.3d 94, 81 Cal.Rptr. 503, 
505. See also Breach of the peace; Disorderly conduct; 
Riot. 
Disturbance of public meetings. It was a misdemean
or at common law to be guilty of conduct which tended 
to disturb a public assembly, though the prosecution, in 
most instances, was required to prove that the distur
bance was caused wantonly or wilfully. In most juris
dictions there is statutory crime for such conduct and 
the disturbance need not be so turbulent as to constitute 
a riot. 
Disturbance of public or religious worship. Any acts 
or conduct which interfere with the peace and good 
order of an assembly of persons lawfully met together 
for religious exercises. 
Disturbance of tenure. In the law of tenure, distur
bance was where a stranger, by menaces, force, persua
sion, or otherwise, caused a tenant to leave his tenancy; 
this disturbance of tenure was an injury to the lord for 
which an action could lie. 
Disturbance of ways. This happened where a person 
who had a right of way over another's ground by grant 
or prescription was obstructed by inclosures or other 
obstacles, or by plowing across it by which means he 
could not enjoy his right of way, or at least in so 
DIVESTITIVE FACT 
commodious a manner as he might have done. 3 Bl. 
Comm. 24l. 
Ditching, diking, or tiling. Every kind of work neces
sary to convert parts of arid lands, particularly sage
brush lands, into farms and orchards,-the word "dik
ing" as applied to arid regions implying a leveling of the 
land, and the term "clearing land" as applied to arid 
regions covered with sagebrush meaning not only the 
removal or the destruction of the brush but the plowing 
or breaking up of the roots as well. 
Divers I daYV:lrs/. Various, several, sundry; a collective 
term grouping a number of unspecified persons, objects, 
or acts. 
Diversion. A turning aside or altering the natural 
course or route of a thing. The term is chiefly applied 
to the unauthorized change or alteration of a water 
course to the prejudice of a lower riparian, or to the 
unauthorized use of funds. 
Diversion program. A disposition of a criminal defen
dant either before or after adjudication of guilt in which 
the court directs the defendant to participate in a work 
or educational program as part of a probation. 
Diversite des courts I diverS:ltey dey kur(t)s/. A trea
tise on courts and their jurisdiction, written in French 
in the reign of Edward III as is supposed, and by some 
attributed to Fitzherbert. It was first printed in 1525, 
and again in 1534. 
Diversity I d:lv;)rs:ltiy I. In criminal pleading at common 
law, a plea by the prisoner in bar of execution, alleging 
that he was not the same who was attainted, upon 
which a jury was immediately impaneled to try the 
collateral issue thus raised, viz., the identity of the 
person, and not whether he was guilty or innocent, for 
that had been already decided. 4 Bl.Comm. 396. 
Diversity jurisdiction. See Diversity of citizenship. 
Diversity of citizenship. A phrase used with reference 
to the jurisdiction of the federal courts, which, under 
U.S .Const. Art. III, § 2, extends to cases between citizens 
of different states, designating the condition existing 
when the party on one side of a lawsuit is a citizen of 
one state, and the party on the other side is a citizen of 
another state, or between a citizen of a state and an 
alien. The requisite jurisdictional amount must, in ad
dition, be met. 28 U.S.C.A. § 1332. See Outcome test. 
Divert I d:lv;)rtl . To turn aside; to turn out of the way; 
to alter the course of things. Usually applied to water
courses or to the unauthorized use of funds. See Diver
sion. 
Dives I dayviyzl . In the practice of the English chancery 
division, "dives costs" are costs on the ordinary scale, as 
opposed to the costs formerly allowed to a successful 
pauper suing or defending in forma pauperis, which 
consisted only of his costs out of pocket. 
Divest. Equivalent to devest (q.v.). 
Divestitive fact I d:lvest:lt:lv frektl. Any act or event 
that extinguishes or modifies a jural relation.

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DIVESTITURE 
Divestiture Id;west;)ty;)r/. In anti-trust law, the order of 
court to a defendant (e.g. corporation) to divest itself of 
property, securities or other assets. U. S. v. E. I. duPont 
de Nemours and Co., 366 U.S. 316, 81 S.Ct. 1243, 6 
L.Ed.2d 318. A firm's act of selling off one or more of 
its parts, such as a subsidiary, a plant, or certain assets 
that create productive capacity. Divestiture is some
times mandated by the courts in merger and monopoli
zation cases. 
Divestment. In property law, the cutting short of an 
interest prior to its normal termination. Restatement, 
Second, Property, § 16. The complete loss of an interest 
in land (total divestment) or the partial loss of it by 
virtue of others sharing it (partial divestment). 
Divide. To cut into parts, disunite, separate, keep apart. 
The term is synonymous with distribute. 
Divide and pay over rule. Substance of such rule is 
that when the only words of gift are found in direction 
to divide or pay at a future time, use of such words 
imports a condition of survival, but if postponement of 
payment is for purpose of letting in an intermediate 
estate, then interest shall be deemed vested at death of 
testator and class of legatee is to be determined as of 
that date for futurity is not annexed to substance of the 
gift. In re Bogart's Will, 62 Misc.2d 11 4, 308 N.Y.S.2d 
594, 602. 
Divided court. Appellate court whose opinion or deci
sion is not unanimous in a particular case. See also 
Division of opinion. 
Divided custody. See Custody. 
Dividend. The distribution of current or accumulated 
earnings to the shareholders of a corporation pro rata 
based on the number of shares owned. Dividends are 
usually issued in cash. However, they may be issued in 
the form of stock or property. The dividend on pre
ferred shares is generally a fixed amount; however, on 
common shares the dividend varies depending on such 
things as the earnings and available cash of the corpora
tion, as well as future plans for the acquisition of prop
erty and equipment by the corporation. See also Alloca
tion of dividends. 
Accumul ated dividend. A cumulative dividend which 
has not been paid when due. 
Asset dividend. Dividend paid in the form of an asset of 
the company; normally a product. See Property divi
dend, below. 
Bond dividend. Type of dividend distribution which is 
rare but one in which the shareholder receives bonds 
instead of scrip, property or money. 
Cash dividend. See that title. 
Consent dividend. For purposes of avoiding or reducing 
the penalty tax on the unreasonable accumulation of 
earnings or the personal holding company tax, a corpo
ration may declare a consent dividend. In a consent 
dividend no cash or property is distributed to the share
holders although the corporation obtains a dividends 
paid deduction. The consent dividend is taxed to the 
478 
shareholders and increases the basis in their stock in
vestment. IRC § 565. 
Constructive dividend. A taxable benefit derived by a 
shareholder from his or her corporation although such 
benefit was not designated as a dividend. Examples 
include unreasonable compensation, excessive rent pay
ments, bargain purchases of corporate property, and 
shareholder use of corporate property. The pass
through of undistributed taxable income (i.e., UTI) to 
the shareholders of a Subchapter S corporation some
times is referred to as a constructive dividend. Con
structive dividends generally are a problem limited to 
closely-held corporations. 
If a stockholder has an unqualified right to a dividend, 
such a dividend is called constructive for tax purposes 
though he does not actually receive it because it is 
subject to his demand and the corporation has set it 
aside for this purpose. Clark v. C.I.R., C.A.Fed., 266 
F.2d 698. 
Cumulative dividend. A typical feature of preferred 
stock that requires any past-due preferred stock divi
dends to be paid before any common stock dividends can 
be paid. A dividend that if not paid annually (or period
ically as provided in the stock certificate) will ultimately 
have to be paid before any common stock dividend can 
be paid. The arrearage is said to accumulate. 
Deferred dividend. One declared, but due to be paid at 
some future date. 
Deficiency dividend. Once the IRS has established a 
corporation's liability for the personal holding company 
tax in a prior year, the tax may be reduced or avoided 
by the issuance of a deficiency dividend under I.R.C. 
§ 547. The deficiency dividend procedure is not avail
able in cases where the deficiency was due to fraud with 
intent to evade tax or to a willful failure to file the 
appropriate tax return [§ 547(g)]. Nor does the deficien
cy dividend procedure avoid the usual penalties and 
interest applicable for failure to file a return or pay a 
tax. 
Dividend addition. Something added to the policy in 
the form of paid-Up insurance, and does not mean unap
portioned assets or surplus. The term does not refer to 
dividends added directly to the loan value. Anderson v. 
Liberty Life Ins. Co. of Topeka, 149 Kan. 447, 87 P.2d 
499, 502. 
Ex-dividend. Term used by stock brokers, meaning that 
a sale of corporate stock does not carry with it the 
seller's right to receive his proportionate share of a 
dividend already declared and shortly payable. See Ex 
dividend. 
Extra dividend. One paid in addition to regular divi
dends; normally because of exceptional profits of corpo
ration during dividend period. 
Extraordinary dividend. See that title. 
Liquidation dividend. See that title. 
Nimble dividends. Dividends paid out of current earn
ings at a time when there is a deficit in earned surplus

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(or other financial account from which dividends may be 
paid). Some state statutes do not permit nimble divi
dends. These statutes require current earnings to be 
applied against prior deficits rather than being used to 
pay a current dividend. 
Noncumulative dividends. See that title. 
Passed dividend. Dividend not paid when due by com
pany which has history of paying regular dividends. 
Preferred dividend. One paid on the preferred stock of a 
corporation. A dividend paid to one class of sharehold
ers in priority to that paid to another. 
Property dividend. Consists of a portion of corporate 
property paid to shareholders instead of cash or corpo
rate stock. See Asset dividend, above. 
Scrip dividend. One paid in scrip, or in certificates of 
the ownership of a corresponding amount of capital 
stock of the company thereafter to be issued. Dividend 
paid in a short term promissory note which, in effect, 
divides profits but enables the corporation to postpone 
actual distribution of cash. Billingham v. E. P. Gleason 
Mfg. Co., 101 A.D. 476, 91 N.Y.S. 1046. 
Stock dividend. A dividend paid in the form of stock 
rather than cash. A stock dividend is usually expressed 
as a percentage of the number of shares already held by 
the shareholder. A corporation normally elects to issue 
a stock dividend in order to conserve cash. The tax 
advantage of a stock dividend to a shareholder is that a 
stock dividend is taxable at the time of sale, while a cash 
dividend is taxable when received. 
Tax treatment. A nondeductible distribution to the 
shareholders of a corporation. A dividend constitutes 
gross income to the recipient if it is from the current or 
accumulated earnings and profits of the corporation. 
See also Dividend received deduction, infra. 
Unpaid dividend. Dividends declared by a corporation, 
but not yet paid. Unpaid dividends are a liability on the 
balance sheet of a corporation. 
Year-end dividend. Type of extra dividend paid at end 
of fiscal year with amount dependent on profits. See 
also Extra dividend, above. 
Dividenda / div�dend�/. An indenture; one counterpart 
of an indenture. 
Dividend income. Species of gross income derived from 
dividend distribution and subject to tax. I.R.C. 
§§ 61(a)(7), 301(c). 
Dividend received deduction. A deduction allowed a 
corporate shareholder for dividends received from a do
mestic corporation. As a result of the Tax Reform Act 
of 1986, corporations are allowed an 80% deduction for 
dividends received in 1987, and a deduction of 70% for 
dividends received after 1987. However, if the corpora
tion owns more than 80% of the stock of the distributing 
corporation, the deduction allowed is 80%. I.R.C. 
§§ 243-246. 
Dividend yield. The current annual dividend divided 
by the market price per share. 
DIVISION, ACTION FOR 
Divinare / div�neriy / . Lat. To divine; to conjecture or 
guess; to foretell. Divinatio, a conjecturing or guessing. 
Divine laws. Those ascribed to God. See Natural law. 
Divine right of kings. The right of a king to rule as 
posited by the patriarchal theory of government, espe
cially under the doctrine that no misconduct and no 
dispossession can forfeit the right of a monarch or his 
heirs to the throne, and to the obedience of the people. 
This theory was in its origin directed, not against popu
lar liberty, but against papal and ecclesiastical claims to 
supremacy in temporal as well as spiritual affairs. 
Divine service. Divine service was the name of a feudal 
tenure, by which the tenants were obliged to do some 
special divine services in certain; as to sing so many 
masses, to distribute such a sum in alms, and the like. 
It differed from tenure in frankalmoi gn, in this: that, in 
case of the tenure by divine service, the lord of whom 
the lands were holden might distrain for its nonperform
ance, whereas, in case of frankal moi gn, the lord has no 
remedy by distraint for neglect of the service, but mere
ly a right of complaint to the visitor to correct it. 
Divisa /d�vayz�/. In old English law, a device, award, or 
decree; also a devise; also bounds or limits of division of 
a parish or farm, etc. Also a court held on the bound
ary, in order to settle disputes of the tenants. 
Divisible. That which is susceptible of being divided. 
Divisible contract. One which is in its nature and 
purposes susceptible of division and apportionment, hav
ing two or more parts in respect to matters and things 
contemplated and embraced by it, not necessarily de
pendent on each other nor intended by the parties so to 
be. 
Divisible divorce. Decree of divorce may be divided as 
between provisions for support and alimony and provi
sions dissolving the marriage. Doctrine applied in cases 
under full faith and credit clause in connection with 
effect of foreign divorce on support provisions. Ryma
nowski v. Rymanowski, 105 R.I. 89, 249 A.2d 407. 
Divisible obligation. See Obligation. 
Divisible offense. One that includes one or more of
fenses of lower grade, e.g., murder includes assault, 
battery, assault with intent to kill, and other offenses. 
See Lesser included offense. 
Divisim /d�vayz�m /. In old English law, severally; sep
arately. 
Division. Act of distributing among a number. Portion 
of territorial area marked off for a particular purpose. 
Operating or administrative unit of government, court, 
business, or school system. Condition of being divided 
in opinion. Ma jor military unit. Separation of mem
bers of a legislative body to take a vote. See also Range. 
Division, action for. Action to compel obligee to divide 
his claim against debtors and collect as if each debtor 
were liable only for his portion. Central Bank v. Winn 
Farmers Co-op., La.App., 299 So.2d 442, 445.

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DIVISIONAL COURTS 
Divisional courts. Courts in England, consisting of two 
or (in special cases) more judges sitting to transact 
certain kinds of business which cannot be disposed of by 
one judge. There exist divisional courts of the Queen's 
Bench Division, Chancery Division, and Family Division. 
Established originally in 1873 and now governed by 
Supreme Court Act, 1981, § 66. 
Divisional securities. Special type of securities issued 
to finance particular projects. 
Division of opinion. In the practice of appellate courts, 
this term denotes such a disagreement among the judges 
that there is not a majority in favor of anyone view, and 
hence no decision can be rendered on the case. But it 
also commonly denotes a division into two classes, one of 
which may comprise a majority of the judges; as when 
we speak of a decision having proceeded from a "divided 
court." See also Divided court. 
Division of powers. See Separation of powers. 
Division order. A direction and authorization to pur
chaser of oil to distribute purchase price in specified 
manner; its purpose is to assure that purchaser pays 
only those parties who are entitled to payment. Blau
sey v. Stein, 61 Ohio St.2d 264, 15 O.O.3d 268, 400 
N.E.2d 408, 410. 
Divisum imperium / d;}vayz;}m impiriy;}m/. Lat. A di
vided jurisdiction. Applied, e.g., to the jurisdiction of 
courts of common law and equity over the same subject. 
Divorce. The legal separation of man and wife, effected 
by the judgment or decree of a court, and either totally 
dissolving the marriage relation, or suspending its ef
fects so far as concerns the cohabitation of the parties. 
See also Alimony; Equitable distribution; Ex parte di
vorce; Legislative divorce; Living separate and apart; Mail 
order divorce; Mexican divorce; Migratory divorce; Rab
binical divorce. 
Divisible divorce. Decree of divorce may be divided as 
between provisions for support and alimony and provi
sions dissolving the marriage. Doctrine applied in cases 
under Full Faith and Credit Clause in connection with 
effect of foreign divorce on support provisions. 
Divorce a mensa et thoro / d;}vors ey mens;} et Dorow / . A 
divorce from table and bed, or from bed and board. A 
partial or qualified divorce, by which the parties are 
separated and forbidden to live or cohabit together, 
without affecting the marriage itself. 
Divorce a vinculo matrimonii / d;}vors ey viIJky;}low 
mretr;}mowniyay /. A divorce from the bond of mar
riage. A total, absolute divorce of husband and wife, 
dissolving the marriage tie, and releasing the parties 
wholly from their matrimonial obligations. 
Divorce by consent (no-fault). Type of no-fault divorce in 
which parties are not required to prove fault or grounds 
for divorce beyond a showing of irretrievable breakdown 
of marriage or irreconcilable differences. The majority 
of states have no-fault divorce statutes in one form or 
another. See, e.g., Uniform Marriage and Divorce Act, 
§§ 302, 305. 
480 
Divorce from bed and board. See Divorce a mensa et 
thoro, above. 
Foreign divorce. A divorce obtained out of the state or 
country where the marriage was solemnized. 
Limit ed divorce. A divorce from bed and board; or a 
judicial separation of husband and wife not dissolving 
the marriage tie. See also Separation of spouses. 
Migratory divorce. Term used to describe a divorce 
secured by a spouse or spouses who leave(s) his/their 
domicile and move(s) to, or reside(s) temporarily in, 
another state or country for purpose of securing the 
divorce. See also Ex parte divorce. 
No-fault divorce. See Divorce by consent, above. 
Parliamentary divorce. A divorce decreed by the British 
Parliament or by a legislative act in contrast to a 
divorce granted by a court. See Lady's friend. 
Divorce proctors. Person, generally an attorney, ap
pointed to protect children or the interests of the state 
in a divorce action. Uniform Marriage and Divorce Act, 
§ 310. 
Divortium dicitur a divertendo, quia vir divertitur 
ab uxore /d;}vorsh(iy);}m dis;}t;}r ey dayv;}rtendow, 
kway;} v;}r d;}v;}rt;}t;}r reb �ksoriy /. Divorce is called from 
divertendo, because a man is diverted from his wife. 
Divulge /d;}v;}lj/. To disclose or make known, as to 
divulge secret or classified information. 
D. J. An abbreviation for "District Judge." 
DNA identification. DNA profiling or fingerprinting is 
an analysis of Deoxyribonucleic Acid (DNA) resulting in 
the identification of an individual's patterned chemical 
structure of genetic information. A method of deter
mining distinctive patterns in genetic material in order 
to identify the source of a biological specimen, such as 
blood, tissue or hair. Cobey v. State, 80 Md.App. 31, 559 
A.2d 391. A forensic technique used in criminal cases to 
identify, or rule out, crime suspect and in paternity 
cases to identify, or rule out, father of child. See e.g. 
Ann.Code of Md., Cts. & Jud.Proc. § 10--915. 
Do /dow/. Lat. I give. The ancient and aptest word of 
feoffment and of gift. 
Dock, v. To curtail or diminish, as to dock a person's 
wages for, e.g. lateness or poor work. 
Dock, n. The cage or inclosed space in a criminal court 
where prisoners stand when brought in for trial. 
Dockage. A charge against vessels for the privilege of 
mooring to the wharves or in the slips. A pecuniary 
compensation for the use of a dock while a vessel is 
undergoing repairs. See also Demurrage; Moorage. 
Docket, v. To abstract and enter in a book. To make a 
brief entry of any proceeding in a court of justice in the 
docket. 
Docket, n. A minute, abstract, or brief entry; or the 
book containing such entries. A formal record, entered 
in brief, of the proceedings in a court of justice. A book 
containing an entry in brief of all the important acts 
done in court in the conduct of each case, from its

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inception to its conclusion. The name of "docket" or 
"trial docket" is sometimes given to the list or calendar 
of causes set to be tried at a specified term, prepared by 
the clerks for the use of the court and bar. 
General Classification 
An appearance docket is one in which the appearances 
in actions are entered, containing also a brief abstract of 
the successive steps in each action. A bar docket is an 
unofficial paper consisting of a transcript of the docket 
for a term of court, printed for distribution to members 
of the bar. An execution docket is a list of the execu
tions sued out or pending in the sheriffs office. A 
judgm ent docket is a list or docket of the judgments 
entered in a given court, methodically kept by the clerk 
or other proper officer, open to public inspection, and 
intended to afford official notice to interested parties of 
the existence or lien of judgments. See also Judgment 
docket; Preferred dockets. 
Civil docket. Fed.R. Civil P. 79(a), and analogous state 
rules, requires that the clerk keep a "civil docket" of all 
actions pending before the court. Actions shall be as
signed consecutive file numbers. The file number of 
each action shall be noted on the folio of the docket 
whereon the first entry of the actions is made. All 
papers filed with the clerk, all process issued and re
turns made thereon, all appearances, orders, verdicts, 
and judgments shall be entered chronologically in the 
civil docket on the folio assigned to the action and shall 
be marked with its file number. The entry of an order 
or judgment shall show the date the entry is made. 
When in an action trial by jury has been properly 
demanded or ordered the clerk shall enter the word 
"jury" on the folio assigned to that action. 
Docket fee. An attorney's fee, of a fixed sum, chargeable 
with or as a part of the costs of the action, for the 
attorney of the successful party; so called because 
chargeable on the docket, not as a fee for making docket 
entries. 
Dock-master. In England, an officer invested with pow
ers within the docks, and a certain distance therefrom 
to direct the mooring and removing of ships, so as t� 
prevent obstruction to the dock entrances. 
Dock receipt. Also known as dock warrant. A type of 
interim certificate issued by maritime shipping company 
upon delivery of goods at the dock, often entitling the 
designated person to have a bill of lading issued to him. 
Trade usage may in some cases entitle such paper to be 
treated as a document of title. If the receipt actually 
represents a storage obligation undertaken by the ship
ping company, then it is a warehouse receipt. See also 
Document (Document of title); Warehouse receipt. 
Dock sale. Exists where a purchaser uses its owned or 
rented vehicles to take possession of the product at the 
seller's shipping dock. In most states, the sale is appor
tioned to the operating state of the purchaser, rather 
than the seller. 
Dock warrant. See Dock receipt. 
DOCUMENT 
Doctor, v. To prescribe or treat medically or to treat as 
a doctor or physician. 
Doctor, n. A learned man; one qualified to give instruc
tion of the higher order in a science or art, particularly, 
one who has received the highest academical degree in 
his art or faculty, as, a doctor of laws, medicine, or 
theology. In colloquial language, however, the term is 
practically restricted to practitioners of medicine; i.e. 
physicians, surgeons. 
Doctor-patient privilege. In law of evidence, right of 
patient to exclude from evidence communications made 
by him to his physician; recognized in most jurisdictions 
but sometimes limited; e.g. to communications to psy
chotherapist. 
Doctrinal interpretation. See Interpreta tion. 
Doctrine. A rule, principle, theory, or tenet of the law; 
as, e.g. Abstention doctrine; Clean hands doctrine, etc. 
Document. An instrument on which is recorded, by 
means of letters, figures, or marks, the original, official, 
or legal form of something, which may be evidentially 
used. In this sense the term "document" applies to 
writings; to words printed, lithographed, or photo
graphed; to maps or plans; to seals, plates, or even 
stones on which inscriptions are cut or engraved. In the 
plural, the deeds, agreements, title-papers, letters, re
ceipts, and other written instruments used to prove a 
fact. As used as a verb, to support with documentary 
evidence or authorities. 
Within meaning of the best evidence rule, document is 
any physical embodiment of information or ideas; e.g. a 
letter, a contract, a receipt, a book of account, a blue
print, or an X-ray plate. Strico v. Cotto, 67 Misc.2d 636, 
324 N.Y.S.2d 483, 486. See also Documentary evidence. 
See also Instrument. 
Ancient documents. Deeds, wills, and other writings 
more than thirty years (twenty years under Fed.Evid.R. 
803(16» old are so called; they are presumed to be 
genuine without express proof, when coming from the 
proper custody. 
Commercial law. Vnder V.C.C., any paper including 
document of title, security, invoice, certificate, notice of 
default and the like. V.C.C. § 5-103. See also Docu
mentary draft. 
Conflicts of law. (1) Whether a right is embodied in a 
document is determined by the law which governs the 
right. (2) As between persons who are not both parties 
to the conveyance, (a) the effect of a conveyance of a 
right embodied in a document depends upon the effect of 
the conveyance of the document; and (b) the effect of a 
conveyance of an interest in a document in which a 
right is embodied is determined by the law that would 
be applied by the courts of the state where the document 
was at the time of the conveyance. These courts would 
usually apply their own local law in determining such 
questions. Restatement, Second, Conflicts, § 249. 
Document of title. A written description, identification 
or declaration of goods "which in the regular course of 
business or financing is treated as adequately evidencing

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DOCUMENT 
that the person in possession of it is entitled to receive, 
hold and dispose of the document and the goods it 
covers. To be a document of title a document must 
purport to be issued by or addressed to a bailee and 
purport to cover goods in the bailee's possession which 
are either identified or are fungible portions of an iden
tified mass." U.C.C. § 1-20 1(15). Examples are: bill of 
lading, dock warrant, dock receipt, warehouse receipt or 
order for the delivery of goods. Id. See also Order 
document; Order instrument. 
Foreign document. One which was prepared or executed 
in, or which comes from, a foreign state or country. 
Judicial documents. Proceedings relating to litigation. 
They are divided into (1) judgments, decrees, and ver
dicts; (2) depositions, examinations, and inquisitions 
taken in the course of a legal process; (3) writs, war
rants, pleadings, etc., which are incident to any judicial 
proceedings. 
Public document. A state paper, or other instrument of 
public importance or interest, issued or published by 
authority of congress or a state legislature. Also any 
document or record, evidencing or connected with the 
public business or the administration of public affairs, 
preserved in or issued by any department of the govern
ment. One of the publications printed by order of 
congress or either house thereof. Broadly any document 
open to public inspection. 
Documentary credit. Credit which is extended on doc
uments of title or other legal documents. 
Documentary draft. A "documentary draft" or a "docu
mentary demand for payment" is one the honor of 
which is conditioned upon the presentation of a doc
ument or documents. "Document" means any paper 
including document of title, security, invoice, certificate, 
notice of default and the like. U.C.C. § 5-103(b). 
Any negotiable or non-negotiable draft with accompa
nying documents, securities or other papers to be deliv
ered against honor of the draft. U.C.C. § 4-104(f). 
Check with accompanying documents which are to be 
delivered when payment is made is "documentary 
draft." Wiley v. Peoples Bank & Trust Co., C.A.Miss., 
438 F.2d 513, 516. 
Documentary evidence. Evidence derived from con
ventional symbols (such as letters) by which ideas are 
represented on material substances. Such evidence as is 
furnished by written instruments, inscriptions, doc
uments of all kinds, and also any inanimate objects 
admissible for the purpose, as distinguished from "oral" 
evidence, or that delivered by human beings viva voce. 
People v. Purcell, 22 Cal.App.2d 126, 70 P.2d 706, 709. 
See also Authentication; Document. 
Documentary instructions. Term for written agree
ment between importer and exporter covering disposi
tion of the various documents relating to the shipment, 
and disposition of the goods. 
Documentary originals rule. See Best evidence. 
482 
Documentary stamp. Stamp required by federal (prior 
to 1968) and state law to be affixed to deeds and other 
documents of transfer before they may be recorded, the 
cost of which is generally governed by the consideration 
recited in the document. Federal Revenue Stamps were 
abolished in 196B. 
Documentation. See Authorities. 
DOD. Department of Defense. 
Do, dico, addico /d6w, dikow, �dikow/. Lat. I give, I 
say, I adjudge. Three words used in the Roman law, to 
express the extent of the civil jurisdiction of the prretor. 
Do denoted that he gave or granted actions, exceptions, 
and judices; dico, that he pronounced judgment; addico, 
that he adjudged the controverted property, or the goods 
of the debtor, etc., to the plaintiff. 
DOE. Department of Energy. 
Doed-bana /dedbeyn�/. In Saxon law, the actual perpe
trator of a homicide. 
Doe, John. The name of the fictitious plaintiff in cer
tain types of actions; e.g. ejectment action. See also 
John Doe. 
De office /d(�) owfiys/. L. Fr. Of office; in virtue of 
office; officially; in the discharge of ordinary duty. 
Dog-draw. In old English forest law, the manifest dep
rehension of an offender against venison in a forest, 
when he was found drawing after a deer by the scent of 
a hound led in his hand; or where a person had wound
ed a deer or wild beast, by shooting at him, or otherwise, 
and was caught with a dog drawing after him to receive 
the same. 
Dog-Latin. The Latin of illiterate persons. Latin words 
put together on the English grammatical system. 
Dogma. Definite authoritative opinions or tenets. For
mally stated and proclaimed doctrines on faith or mor
als. In the civil law, a word occasionally used as de
scriptive of an ordinance of the senate. 
DOHSA. Death on High Seas Act. 
Doing. The formal word by which services were reserved 
and expressed in old conveyances; as "rendering" (red
dendo) was expressive of rent. 
Doing business. Within statutes on service of process 
on foreign corporations, means equivalent to carrying 
on, conducting or managing business. A foreign corpo
ration is "doing business", making it amenable to pro
cess within state, if it does business therein in such a 
manner as to warrant the inference that it is present 
there. Or that it has subjected itself to the jurisdiction 
and laws in which the service is made. The doing of 
business is the exercise in the state of some of the 
ordinary functions for which the corporation was orga
nized. What constitutes "doing business" depends on 
the facts in each particular case. The general rule is 
that the business need only have certain "minimum 
contacts" with the state to make it amenable to process 
in that state. International Shoe Co. v. State of Wash
ington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. And,

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such contacts may be as minimal as selling a single 
insurance contract. McGee v. International Life Insur
ance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; 
Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 
L.Ed.2d 1283. See also Long arm statutes; Minimal con
tacts. 
The determination as to what constitutes "doing busi
ness" may differ as to whether the term is being used 
with reference to amenability to service of process or to 
taxation, and also may vary in definition from state to 
state. 
Doitkin, or doit I d6yt(k:m)I . A base coin of small value 
prohibited by Henry the Fif th. We still retain the 
phrase, in the common saying, when we would underval
ue a man, that he is not worth a doit. 
Do, lego. Lat. I give, I bequeath; or I give and be
queath. The formal words of making a bequest or 
legacy, in the Roman law. The expression is literally 
retained in modern wills. 
Dolg I d61g/. Sax. A wound. 
Dolg-bote Id61gbowt/. A recompense for a scar or 
wound. 
Doli. Lat. See Dolus. 
Doli capax I d6wlay keypreks/. Capable of malice or 
criminal intention; having sufficient discretion and in
telligence to distinguish between right and wrong, and 
so to become amenable to the criminal laws. 
Doli incapax I d6wlay inkeypreks/. Incapable of crimi
nal intention or malice; not of the age of discretion; not 
possessed of sufficient discretion and intelligence to dis
tinguish between right and wrong to the extent of being 
criminally responsible for his actions. 
Dollar. The money unit employed in the United States 
of the value of one hundred cents, or of any combination 
of coins totalling 100 cents. 
Dollar averaging. Investment term for practice of pur
chasing a fixed dollar amount of a given security at 
regular intervals. 
Dolo Id6wlow/. In Spanish law, bad or mischievous 
design. 
Dolo facit qui petit quod redditurus est I d6wlow 
feys�t kwliy pet�t kwod red�tur�s est/. He acts with 
guile who demands that which he will have to return. 
Dolo malo pactumse non servaturum I d6wlow mrelow 
prekt;}msiy non s�rv�t(y)ur�m/. An agreement induced 
by fraud cannot stand. 
Dolosus versatur in generalibus I d�16ws�s v�rseyt�r in 
jen�reyl�b�s/. A person intending to deceive deals in 
general terms. 
Dolum ex indiciis perspicuis probari convenit 
I d6wbm eks indishiy�s p�rspikyuw�s prowberay 
k�nviyn�t/. Fraud should be proved by clear tokens. 
Dolus I d6wl�s/. In the civil law, guile; deceitfulness; 
malicious fraud. A fraudulent address or trick used to 
DOMAIN 
deceive some one; a fraud. Any subtle contrivance by 
words or acts with a design to circumvent. 
Such acts or omissions as operate as a deception upon 
the other party, or violate the just confidence reposed by 
him, whether there be a deceitful intent (m alus animu s) 
or not. 
Fraud, willfulness, or intentionality. In that use it is 
opposed to culpa, which is negligence merely, in greater 
or less degree. The policy of the law may sometimes 
treat extreme culpa as if it were dolus, upon the maxim 
culpa dolo com paratur. A person is always liable for 
dolus producing damage, but not always for culpa pro
ducing damage, even though extreme. 
Dolus auctoris non nocet successori Id6wl�s okt6r�s 
non n6s�t s;)ks�s6ray I. The fraud of a predecessor prej
udices not his successor. 
Dolus bonus, dolus malus I d6wl�s bown�sl d6wbs 
mrel�s/. In a wide sense, the Roman law distinguishes 
between "good," or rather "permissible" dolus and 
"bad" or fraudulent dolus. The former is justifiable or 
allowable deceit; it is that which a man may employ in 
self-defense against an unlawful attack, or for another 
permissible purpose, as when one dissembles the truth 
to prevent a lunatic from injuring himself or others. 
The latter exists where one intentionally misleads an
other or takes advantage of another's error wrongfully, 
by any form of deception, fraud, or cheating. 
Dolus circuitu non purgatur I d6wl�s s�rkyuw�tuw non 
p�rgeyt�r/ . Fraud is not purged by circuity. 
Dolus dans locum contractui I d6wbs drenz 16wk�m 
k�ntrrektyuway I. Fraud (or deceit) giving rise to the 
contract; that is, a fraudulent misrepresentation made 
by one of the parties to the contract, and relied upon by 
the other, and which was actually instrumental in in
ducing the latter to enter into the contract. 
Dolus est machinatio, cum aliud dissimulat aliud 
agit Id6wbs est mrek�neysh(iy)ow k;)m reliy�d d�simy�l�t 
reliy�d eyj�t1. Deceit is an artifice, since it pretends one 
thing and does another. 
Dolus et fraus nemini patrocinentur, (patrocinari 
derent) I d6wbs et fr6s nem�nay pretrows�nent�r 
(Opretrows�neray deb�nt)/. Deceit and fraud shall ex
cuse or benefit no man. 
Dolus latet in generalibus I d6wl�s leyt�t in 
jen�reyl�b�s/. Fraud lurks in generalities. 
Dolus versatur in generalibus I d6wbs v�rseyt�r in 
jen�reybb�s /. Fraud deals in generalities. 
Domain. The complete and absolute ownership of land; 
a paramount and individual right of property in land. 
Also the real estate so owned. The inherent sovereign 
power claimed by the legislature of a state, of control
ling private property for public uses, is termed the 
"right of eminent domain." See Condemnation; Eminent 
domain. 
National domain is sometimes applied to the aggre
gate of the property owned directly by a nation. Public 
domain embraces all lands, the title to which is in the

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DOMAIN 
United States, including as well land occupied for the 
purposes of federal buildings, arsenals, dock-yards, etc., 
as land of an agricultural or mineral character not yet 
granted to private owners. 
Sphere of influence. Range of control or rule; realm. 
Dombec, domboc I d6wmbllk/. (Sax. From dom, judg
ment, and bee, boc, a book.) Dome-book or doom-book. 
A name given among the Saxons to a code of laws. 
Several of the Saxon kings published dombocs, but the 
most important one was that attributed to Alfred. This 
is sometimes confounded with the celebrated Domesday
Book. See Dome-book; Domesday. 
Dombrowski doctrine. Rule enunciated in Dombrow
ski v. Pfister, 380 U.S. 479, 85 S.Ct. 111 6, 14 L.Ed.2d 22, 
to the effect that a person is entitled to an injunction in 
a federal court to prevent state officers from prosecuting 
or threatening to prosecute him under a state statute 
which is so broad and vague that it interferes with 
rights guaranteed by the First Amendment, U.S. Consti
tution. 
Dome. (Sax.) Doom; sentence; judgment. An oath. 
The homager's oath in the black book of Hereford. 
Dome-book. A book or code said to have been compiled 
under the direction of Alfred, for the general use of the 
whole kingdom of England; containing, as is supposed, 
the principal maxims of the common law, the penalties 
for misdemeanors, and the forms of judicial proceedings. 
It is said to have been extant so late as the reign of 
Edward IV, but is now lost. 1 Bl.Comm. 64, 65. 
Domesday, domesday-book Id6wmzdey 
bukl duwmzdeyo I. (Sax.) An ancient record made in 
the time of William the Conqueror, and later remaining 
in the English exchequer, consisting of two volumes of 
unequal size, containing minute and accurate surveys of 
the lands in England. 2 Bl.Comm. 49, 50. The work 
was begun by five justices in each county in 1081, and 
finished in 1086. 
Domesmen I d6wmzm:m/. (Sax.) In old English law, an 
inferior kind of judge. Men appointed to doom Gudge) 
in matters in controversy. Suitors in a court of a manor 
in ancient demesne, who were judges there. 
Domestic, n. A household servant. 
Domestic, adj. Pertaining, belonging, or relating to a 
home, a domicile, or to the place of birth, origin, cre
ation, or transaction. 
As to domes tic Administrators; Attachment; Commerce; 
Corporation; Creditor; Factor; Fixture; Judgment; and 
Man ufacture, see those titles. 
Domestic animals. Such as are habituated to live in or 
about the habitations of men, or such as contribute to 
the support of a family. Tamed animals; e.g. horses, 
sheep, dogs. 
Domesticated. Made domestic or converted to domestic 
use; e.g. taming of wild horse. 
Domestic authority. The right of parents and, by ex
tension, the right of teachers, to discipline and compel 
484 
obedience to their lawful commands from their children. 
See Corporeal punishment. 
Domestic bill. Draft which is payable in the state in 
which it is drawn, as contrasted with a foreign bill 
which is payable in another state. 
Domestic corporation. When a corporation is orga
nized and chartered in a particular state, it is considered 
a domestic corporation of that state. Term is used in 
contrast to foreign corporation which has been incorpo
rated in another state, territory or country. For tax 
purposes, a corporation created or organized in the U.S. 
or under the law of the U.S. or any state or territory. 
I.R.C. § 7701(a)(4). Compare Foreign corporation. 
Domestic courts. Those existing and having jurisdic
tion at the place of the party's residence or domicile. 
Domestic exports. Goods originally grown, produced, or 
manufactured in the United States, in contrast to goods 
originally imported and then re-exported. 
Domestic International Sales Corporation (DISC). A 
U.S. corporation, usually a subsidiary, whose income is 
primarily attributable to exports. Income tax on a 
certain percentage of a DISC's income is usually de
ferred resulting, generally, in a lower overall corporate 
tax for the parent than would otherwise be incurred. 
I.R.C. § 991 et seq. 
Domestic jurisdiction. Power of court over a person or 
action within its district or state. 
Domestic relations. That branch or discipline of the 
law which deals with matters of the household or fami
ly, including divorce, separation, custody, support and 
adoption. 
Domestic servant. A person hired or employed primari
ly for the performance of household duties and chores, 
the maintenance of the home, and the care, comfort and 
convenience of members of the household. Hardware 
Dealers Mut. Fire Ins. Co. v. King, Tex.Civ.App., 408 
S.W.2d 790, 791. See also Domestic. 
Domesticus I d�mest�k�s/. In old European law, a senes
chal, steward, or major domo; a judge's assistant; an 
assessor (q.v.). 
Domicellus Idom�sel�s /. In old English law, a better 
sort of servant in monasteries; also an appellation of a 
king's bastard. 
Domicile. A person's legal home. That place where a 
man has his true, fixed, and permanent home and 
principal establishment, and to which whenever he is 
absent he has the intention of returning. Smith v. 
Smith, 206 Pa.Super. 310, 213 A.2d 94. Generally, phys
ical presence within a state and the intention to make it 
one's home are the requisites of establishing a "domi
cile" therein. Montoya v. Collier, 85 N.M. 356, 512 P.2d 
684, 686. The permanent residence of a person or the 
place to which he intends to return even though he may 
actually reside elsewhere. A person may have more 
than one residence but only one domicile. The legal 
domicile of a person is important since it, rather than 
the actual residence, often controls the jurisdiction of

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485 
the taxing authorities and determines where a person 
may exercise the privilege of voting and other legal 
rights and privileges. The established, fixed, perma
nent, or ordinary dwellingplace or place of residence of a 
person, as distinguished from his temporary and tran
sient, though actual, place of residence. It is his legal 
residence, as distinguished from his temporary place of 
abode; or his home, as distinguished from a place to 
which business or pleasure may temporarily call him. 
See also Abode; Residence. 
"Citizenship," "habitancy," and "residence" are sever
ally words which in particular cases may mean precisely 
the same as "domicile," while in other uses may have 
different meanings. 
"Residence" signifies living in particular locality 
while "domicile" means living in that locality with in
tent to make it a fixed and permanent home. Schreiner 
v. Schreiner, Tex.Civ.App., 502 S.W.2d 840, 843. 
For purpose of federal diversity jurisdiction, "citizen
ship" and "domicile" are synonymous. Hendry v. Ma
sonite Corp., C.A.Miss., 455 F.2d 955. 
Commercial domicile. A domicile acquired by the main
tenance of a commercial establishment. A concept em
ployed to permit taxation of property or activity of 
nonresident corporation by state in which managerial 
activities occurred in quantity and character sufficient 
to avoid contention of nonresident corporation that taxa
tion of its activities and property located outside bounds 
of taxing state amounted to deprivation of property 
without due process. North Baton Rouge Development 
Co., Inc. v. Collector of Revenue, La., 304 So.2d 293, 297. 
Corporate domicile. Place considered by law as center 
of corporate affairs and place where its functions are 
discharged. See also Commercial domicil e, above. 
Domicile of choice. The essentials of "domicile" of 
choice are the fact of physical presence at a dwelling 
place and the intention to make that place home. New 
York Trust Co. v. Riley, 24 Del.Ch. 354, 16 A.2d 772, 776, 
783, 785. 
Domicile of origin. The home of the parents. That 
which arises from a man's birth and connections. The 
domicile of the parents at the time of birth, or what is 
termed the "domicile of origin," constitutes the domicile 
of an infant, and continues until abandoned, or until the 
acquisition of a new domicile in a different place. Stru
ble v. Struble, Tex.Civ.App., 177 S.W.2d 279, 283. 
Domicile of succession. As distinguished from a com
mercial, political, or forensic domicile, the actual resi
dence of a person within some jurisdiction, of such a 
character as shall, according to the well-established 
principles of public law, give direction to the succession 
of his personal estate. 
Domicile of trustee. Jurisdiction which appoints trustee 
is domicile of trustee. 
Elected domicile. The domicile of parties fixed in a 
contract between them for the purposes of such contract. 
DOMINANT ESTATE 
Foreign domicile. A domicile established by a citizen or 
subject of one sovereignty within the territory of anoth
er. 
Matrimonial domicile. The place where a husband and 
wife have established a home, in which they reside in 
the relation of husband and wife, and where the matri
monial contract is being performed. 
Municipal domicile. One which as distinguished from 
"national domicile" and "quasi national domicile" (see 
those titles, infra), has reference to residence in a coun
ty, township, or municipality. 
National domicile. The domicile of a person, considered 
as being within the territory of a particUlar nation, and 
not with reference to a particular locality or subdivision 
of a nation. 
Natural domicile. The same as domicile of origin or 
domicile by birth. 
Necessary domicile. That kind of domicile which exists 
by operation of law, as distinguished from voluntary 
domicile or domicile of choice. 
Quasi national domicile. One involving residence in a 
state. See also National domicil e, above. 
Domiciled Id6m;)s;)ld/d6m;)sayld/. Established in a giv
en domicile; belonging to a given state or jurisdiction by 
right of domicile. 
Domiciliary I dom;)sil(i)y;)riy I. Pertaining to domicile; 
relating to one's domicile. Existing or created at, or 
connected with, the domicile of a suitor or of a decedent. 
Domiciliary administration. Administration of estate 
in state where person was domiciled at time of death is 
deemed principal or primary administration and is ordi
narily termed "domiciliary administration." First Nat. 
Bank v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149, 151. 
Domiciliate I dom;)siliyeyt/. To establish one's domicile; 
to take up one's fixed residence in a given place. To 
establish the domicile of another person whose legal 
residence follows one's own. 
Domiciliation Idom;)siliyeysh;)n/. 'I n Spanish law, the 
acquisition of domiciliary rights and status, nearly 
equivalent to naturalization, which may be accom
plished by being born in the kingdom, by conversion to 
the Catholic faith there, by taking up a permanent 
residence in some settlement and marrying a native 
woman, and by attaching oneself to the soil, purchasing 
or acquiring real property and possessions. 
Domicilium Idom;)sil(i)y;)m/. Lat. Domicile (q.v.). 
Domigerium Idom;)jeriy;)m/. In old English law, power 
over another; also danger. 
Domina (dame) I d6m;)n;)I . A title given to honorable 
women, who anciently, in their own right of inheritance, 
held a barony. 
Dominant estate or tenement I d6m;)n:mt ;)steyt/. Land 
that benefits from easement on another (usually adja
cent) property. That to which a servitude or easement 
is due, or for the benefit of which it exists. A term used

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DOMINANT ESTATE 
in the civil and Scotch law, and later in ours, relating to 
servitudes, meaning the tenement or subject in favor of 
which the service is constituted; as the tenement over 
which the servitude extends is called the "servient tene
ment." That particular parcel of land that is benefited 
as a result of an easement on a servient estate. 
Possessor of dominant estate is entitled to benefit of 
uses authorized by easement. In such case, easement is 
said to be appurtenant to dominant estate. See also 
Servient tenement. 
Dominant tenant. The person who holds the benefit of 
an easement. 
Dominant theme. Within meaning of requirement that 
before any material can be found to be obscene the 
dominant theme of material taken as a whole must 
appeal to prurient interest in sex means prevailing, 
governing, influencing or controlling idea. State ex reI. 
Dowd v. "Pay the Baby Sitter", Com.PI., 31 Ohio Misc. 
208, 287 N .E.2d 650, 654. See also Obscene; Obscenity. 
Dominate /dom:meyt/. To master, to rule, or to control. 
Humble Oil & Refining Co. v. National Labor Relations 
Board, C.C.A.5, 113 F.2d 85, 88, 90. 
Dominatio Idom: meysh(iy)ow/. In old English law, lord
ship. 
Dominical. That which denotes the Lord's day, or Sun
day. 
Dominicide I d::lmin::lsayd/. The act of killing one's lord 
or master. 
Dominicum I d::lmin::lk::lm/. Lat. Domain; demain; de
mesne. A lordship. That of which one has the lordship 
or ownership. That which remains under the lord's 
immediate charge and control. In Domesday Book it 
meant the home farm as distinguished from the holdings 
of the tenants. 
Property; domain; anything pertaining to a lord. In 
ecclesiastical law, a church, or any other building con
secrated to God. 
Dominicum antiquum I d::lmin::lk::lm rentilykw::lm/. In 
old English law, ancient demesne. 
Dominio Idomiyniyow/. Sp. In Spanish law, a term 
corresponding to the most complete right of ownership. 
It is derived from the Latin dominium (q.v.). Dominio 
alto, eminent domain; dominio directo, immediate own
ership; dominio util, beneficial ownership. 
Dominion. Generally accepted definition of "dominion" 
is perfect control in right of ownership. The word 
implies both title and possession and appears to require 
a complete retention of control over disposition. Eastex 
Aviation, Inc. v. Sperry & Hutchinson Co., C.A.Tex., 522 
F.2d 1299, 1307. Title to an article of property which 
arises from the power of disposition and the right of 
claiming it. 
Sovereignty; as the dominion of the seas or over a 
territory. 
In the civil law, with reference to the title to property 
which is transferred by a sale of it, dominion is said to 
486 
be either "proximate" or "remote," the former being the 
kind of title vesting in the purchaser when he has 
acquired both the ownership and the possession of the 
article, the latter describing the nature of his title when 
he has legitimately acquired the ownership of the prop
erty but there has been no delivery. 
See also Owner ship; Title. 
Dominium I d::lminiY::lm/. In the civil and old English 
law, ownership; property in the largest sense, including 
both the right of property and the right of possession or 
use. 
The mere right of property, as distinguished from the 
possession or usufruct. The right which a lord had in 
the fee of his tenant. 
Sovereignty or dominion. Dom inium maris, the sov
ereignty of the sea. 
Dominium directum I d::lminiY::lm d::lrekt::lm/. In the 
civil law, strict ownership; that which was founded on 
strict law, as distinguished from equity. In later law, 
property without use; the right of a landlord. In feudal 
law, right or proper ownership; the right of a superior 
or lord, as distinguished from that of his vassal or 
tenant. The title or property which the sovereign in 
England is considered as possessing in all the lands of 
the kingdom, they being holden either immediately or 
mediately of him as lord paramount. 
Dominium directum et utile I d::lminiY::lm d::lrekt::lm et 
yuwt::lliy I. The . complete and absolute dominion in 
property; the union of the title and the exclusive use. 
Dominium eminens Id::lminiY::lm em::lnen(d)z/. Eminent 
domain. 
Dominium non potest esse in pendenti I d::lminiY::lm 
non powtest esiy in pendentay/. Lordship cannot be in 
suspense, i.e., property cannot remain in abeyance. 
Dominium plenum I d::lminiY::lm pliyn::lm/. Full owner
ship; the union of the dominium directum with the 
dominium utile. 
Dominium utile Id::lminiY::lm yuwt::lliy/. In the civil law, 
equitable or prretorian ownership; that which was 
founded on equity. In later law, use without property; 
the right of a tenant. In feudal law, useful or beneficial 
ownership; the usufruct, or right to the use and profits 
of the soil, as distinguished from the dominium directum 
(q.v.) or ownership of the soil itself; the right of a vassal 
or tenant. 
Domino volente Idom::lnow v::llentiy/. Lat. The owner 
being willing; with the consent of the owner. 
Dominus Idom::ln::ls/. In feudal and ecclesiastical law, a 
lord, or feudal superior. Dominus rex, the lord the king; 
the king's title as lord paramount. Dominus capitalis, a 
chief lord. Dominus medius, a mesne or intermediate 
lord. Dominus ligius, liege lord or sovereign. 
Lord or sir; a title of distinction. It usually denoted a 
knight or clergyman; and was sometimes given to a 
gentleman of quality, though not a knight, especially if 
he were lord of a manor.

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The owner or proprietor of a thing, as distinguished 
from him who uses it merely. A master or principal, as 
distinguished from an agent or attorney. 
In the civil law, a husband; a family. 
Dominus capitalis loco hreredis habetur, quoties per 
defectum vel delictum extinguitur sanguis sui ten
entis Idom;}n;}s krep;}teyl;}s lowkow h;}riyd;}s h;}biyt;}r, 
kwowshiyiyz p;}r d;}fekt;}m vel d;}1ikt;}m ekstiIJgw;}t;}r 
sreIJgw;}s s(y)uway t;}nent;}s/. The supreme lord takes 
the place of the heir, as often as the blood of the tenant 
is extinct through deficiency or crime. 
Dominus litis I dom;}n;}s layt;}s/. Lat. The master of 
the suit; i.e., the person who was really and directly 
interested in the suit as a party, as distinguished from 
his attorney or advocate. But the term is also applied to 
one who, though not originally a party, has made him
self such, by intervention or otherwise, and has assumed 
entire control and responsibility for one side, and is 
treated by the court as liable for costs. Virginia Electric 
& Power Co. v. Bowers, 181 Va. 542, 25 S.E.2d 361, 363. 
Dominus navis Idom;}n;}s neyv;}s/. In the civil law, the 
owner of a vessel. 
Dominus J;lon maritabit pupiIlum nisi semel I dom;}n;}s 
non mrer;}teyb;}t pyuwpil;}m naysay sem;}l/. A lord can
not give a ward in marriage but once. 
Dominus rex nullum habere potest parem, multo 
minus superiorem I dom;}n;}s reks n�l;}m h;}biriy 
powt;}st prer;}m, m�ltow mayn;}s s;}piriyor;}m/. The king 
cannot have an equal, much less a superior. 
Domitre I dom;}tiy I. Lat. Tame; domesticated; not wild. 
Applied to domestic animals, in which a man may have 
an absolute property. 2 Bl.Comm. 391. 
Dommages interets. In French law, damages. 
Domo reparanda I dowmow rep;}rrend;}I . A writ that 
lay for one against his neighbor, by the anticipated fall 
of whose house he feared a damage and injury to his 
own. 
Dom. Proc. An abbreviation of Domus Procerum or 
Domo Procerum; the house of lords in England. Some
times expressed by the letters D. P. 
Domus I dowm;}s/. Lat. In the civil and old English 
law, a house or dwelling; a habitation. Shreveport 
Long Leaf Lumber Co. v. Wilson, D.C.La., 38 F.Supp. 
629, 631. See Domicile. 
Domus conversorum I dowm;}s konv;}rsor;}m/. An an
cient house built or appointed by King Henry III for 
such Jews as were converted to the Christian faith; but 
King Edward III, who expelled the Jews from the king
dom, deputed the place for the custody of the rolls and 
records of the chancery. 
Domus dei I dowm;}s diyay I. The house of God; a name 
applied to many hospitals and religious houses. 
Domus procerum Ido(w)m;}s pro(w)s;}r;}m/. The house 
of lords, abbreviated into Dom. Proc., or D. P. 
DONATIO 
Domus sua cuique est tutissimum refugium I dowm;}s 
s(y)UW;} k(yu)waykwiy est tyuwtis;}m;}m r;}fyuw
jiy;}m/. To every man his own house is his safest 
refuge. The house of every one is to him as his castle 
and fortress, as well for his defense against injury and 
violence as for his repose. A man's dwellinghouse is his 
castle, not for his own personal protection merely, but 
also for the protection of his family and his property 
therein. 
Domus tutissimum cuique refugium atque receptacu
lum sit I dowm;}s tyuwtis;}m;}m k(yu)waykwiy r;}fyuw
jiy;}m retkwiy r;}septreky;}l;}m sit!. A man's house should 
be his safest refuge and shelter. The habitation of each 
one is an inviolable asylum for him. A maxim of the 
Roman law. 
Dona clandestina sunt semper suspiciosa I down;} 
klrend;}stayn;} s;}nt semp;}r s;}spishiyows;}I . Clandestine 
gifts are always suspicious. 
Donari videtur, quod nullo jure cogente conceditur 
I downeray v;}diyt;}r kwod n�low Juny k;}jentiy 
k;}nsiyd;}t;}r/. A thing is said to be given when it is 
yielded otherwise than by virtue of right (that is con
sidered to be given which is granted when no law 
compels). 
Donatarius I down;}teriy;}s/. A donee; one to whom 
something is given. See Donee. 
Donated stock. Securities given to a corporation by its 
own stockholders commonly for resale. 
Donated surplus. Contribution of assets to a corpora
tion generally in the form of stock from its stockholders. 
Donatio Idowneysh(iy)ow/. Lat. A gift. A transfer of 
the title to property to one who receives it without 
paying for it. The act by which the owner of a thing 
voluntarily transfers the title and possession of the same 
from himself to another person, without any considers.-
, tion. 
By the civil law (adopted into the English and Ameri
can law) donations are either inter vivos (between living 
persons) or mortis causa (in anticipation of death). As 
to these forms, see infra. A donatio or gift as between 
living persons is called donatio mera or pura when it is a 
simple gift without compulsion or consideration, that is, 
resting solely on the generosity of the donor, as in the 
case of most charitable gifts. It is called donatio rem un
eratoria when given as a reward for past services, but 
still not under any legal compulsion, as in the case of 
pensions and land-grants. It is called donatio sub modo 
(or modalis) when given for the attainment of some 
special object or on condition that the donee shall do 
something not specially for the benefit of the donor, as 
in the case of the endowment of hospitals, colleges, etc., 
coupled with the condition that they shall be established 
and maintained. The following terms are also used: 
Donatio conditionalis, a conditional gift; donatio relata, 
a gift made with reference to some service already done, 
donatio stricta et coarctura, a restricted gift, as an estate 
tail.

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DONATIO CAUSA MORTIS 
Donatio causa mortis. A gift of personal property 
made by a party in expectation of death, then imminent, 
subject to condition that donor die as anticipated; estab
lishment of gift calls for proof of delivery. Scherer v. 
Hyland, 75 N.J. 127, 380 A.2d 698, 700. See Donatio 
mortis causa. 
Donatio inofficiosa I downeysh(iy)ow in;}fis(h)iyows;}I . 
An inofficious (undutiful) gift; a gift of so great a part of 
the donor's property that the birthright portion of his 
heirs is diminished. 
Donatio inter vivos Idowneysh(iy)ow int;}r vayvows/. A 
gift between the living. The ordinary kind of gift by one 
person to another. A term derived from the civil law. 
A donation inter vivos (between living persons) is an act 
by which the donor divests himself at present and irre
vocably of the thing given in favor of the donee who 
accepts it. 
There are three kinds of "donations inter vivos", 
namely, "gratuitous donations", "onerous donations", 
and "remunerative donations", the first being based on 
mere liberality, the second being burdened with charges 
imposed by the donee, and the third being recompense 
for services rendered. White v. White, La.App., 7 So.2d 
255, 257. 
Donatio mortis causa I downeysh(iy)ow mort;}s koz;} I . A 
gift made by a person in sickness, who, apprehending his 
death, delivers, or causes to be delivered, to another the 
possession of any personal goods, to keep as his own in 
case of the donor's decease. The civil law defines it to 
be a gift under apprehension of death; as when any
thing is given upon condition that, if the donor dies, the 
donee shall possess it absolutely, or return it if the 
donor should survive or should repent of having made 
the gift, or if the donee should die before the donor. A 
gift in view of death is one which is made in contempla
tion, fear, or peril of death, and with intent that it shall 
take effect only in case of the death of the giver. A 
. donation mortis causa (in prospect of death) is an act to 
take effect when the donor shall no longer exist, by 
which he disposes of the whole or a part of his property, 
and which is revocabl e. See Contemplation of death. 
Donation. A gift (q. v.). See Donatio. 
In ecclesiastical law, a mode of acquiring a benefice by 
deed of gift alone, without presentation, institution, or 
induction. 
Donation lands. Lands granted from the public domain 
to an individual as a bounty, gift, or donation; particu
larly, in early Pennsylvania history, lands thus granted 
to soldiers of the revolutionary war. 
Donatio non prresumitur Idowneysh(iy)ow non pr;}z
(y)uwm;}t;}r/. A gift is not presumed. 
Donationum alia perfecta, alia incepta et non perfec
ta, ut si donatio lecta fuit et concessa, ac traditio 
nondum fuerit subsecuta I d;}neyshiyown;}m eyl(i)y;) 
p;}rfekta, eyl(i)y;} inept;} et non p;}rfekt;}, �t say 
downeysh(iy)ow lekt;} fyuw;}t et k;}nses;}, rek tr;}dish(iy)ow 
nond�m fyuw;}r;}t s�bs;}kyuwt;}/. Some gifts are perfect, 
488 
others incipient and not perfect as if a gift were read 
and agreed to, but delivery had not then followed. 
Donatio perficitur possessione accipientis I downey
sh(iy)ow p;}rfis;}t;}r p;}zeshiyowniy ;}ksipiyent;}s/. A gift 
is perfected [made complete] by the possession of the 
receiver. A gift is incomplete until possession is deliv
ered. 
Donatio principis intelligitur sine prrejudicio tertii 
Idowneysh(iy)ow prins;}p;}s int;}lej;}t;}r sayniy priy
juwdish(iy)ow t�rshiyay I. A gift of the prince is under
stood without prejudice to a third party. 
Donatio propter nuptias Idowneysh(iy)ow propt;}r 
n�pshiy;}s/. A gift on account of marriage. In Roman 
law, the bridegroom's gift to the bride in anticipation of 
marriage and to secure her dos was called "donatio ante 
nuptias':· but by an ordinance of Justinian such gift 
might be made after as well as before marriage, and in 
that case it was called "donatio pro pter nuptias." 
Donative advowson I down;}d;}v ;}dvawz;}n/. In ecclesi
astical law, a species of advowson, where the bene
fice is conferred on the clerk by the patron's deed of 
donation, without presentation, institution, or induction. 
2 Bl.Comm. 23. 
Donative trust. Type of trust created by transfer of 
property in trust as gift for benefit of another person or 
by proper declaration of legal owner of property that he 
will hold it in trust for another's benefit and does not 
require payment of any consideration by the beneficiary. 
Elbert v. Waples-Platter Co., Tex.Civ.App., 156 S.W.2d 
146, 150, 151. 
Donator I downeyt;}r I. A donor; one who makes a gift 
(donatio). 
Donatorius Idown;}toriy;}s/. A donee; a person to whom 
a gift is made; a purchaser. 
Donator nunquam desinit possidere, antequam dona
torius incipiat possidere I downeytow n�IJkw;}m 
des;}n;}t pos;}diriy rent;}kw;}m down;}toriy;}s insipiy;}t 
pos;}diriy I. The donor never ceases to possess, until the 
donee begins to possess. 
Donatory I down;}t(o)riy I. The person on whom the king 
bestows his right to any forfeiture that has fallen to the 
crown. 
Done. Completed; brought to an end; over. 
Donec I downek/. Lat. As long as; while; until; within 
a certain time. 
Donec probetur in contrarium I downek prowbiyt;}r in 
k;}ntreriy;}m/. [Given] until proof to the contrary. 
Donee. The recipient of a gift. One to whom a gift is 
made or a bequest given. One who is invested with a 
power of appointment; the party executing a power, 
otherwise called the "appointer." He to whom lands or 
tenements are given in tail. In old English law, he to 
whom lands were given; the party to whom a donatio 
was made. 
Donee beneficiary. A person not a party to a contract 
but to whom the benefits of a contract flow as a direct

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result of an intention to make a gift to that person. In a 
third party contract, the person who takes the benefit of 
the contract though there is no privity between him and 
the contracting parties. 
Where performance of a promise in a contract will 
benefit a person other than the promisee, that person is 
a "donee beneficiary" if it appears from the terms of the 
promise in view of the accompanying circumstances that 
the purpose of the promisee in obtaining the promise is 
to make a gift to the beneficiary or to confer upon him a 
right against the promissor to some performance not 
due from the promisee to the beneficiary. Bain v. 
Gillispie, Iowa App., 357 N.W.2d 47, 50. 
Donee of power. The person to whom the settlor or 
donor of a power of appointment gives such power to be 
exercised. In the case of a special power, in favor of a 
limited class such as members of a family, or, in the case 
of a general power, in favor of any one including the 
donee himself. 
Donis, Statute de Istretyuwt diy d6wn�s/. See De donis. 
Donneur d'aval Idon�r daval/. In French law, guaran
tor of negotiable paper other than by indorsement. 
Donor. The party conferring a power. One who makes 
a gift. One who creates a trust. He who gives lands or 
tenements to another in tail. In old English law, he by 
whom lands were given to another; the party making a 
donatio. 
Donum Id6wn�m/. Lat. In the civil law, a gift; a free 
gift. The difference between donum and munus is said 
to be that donum is more general, while munus is 
specific. 
Doomsday-book. See Domesday-book. 
Door closing doctrine. The principle invoked when a 
loop-hole in a law is closed by a statute or decision. 
Dope. Any thick liquid or pasty preparation, as of 
opium for medicinal purposes, of grease for a lubricant, 
etc., and in popular meaning signifies opium derivative, 
ranging from harmless concoction to most powerful nar
cotics containing heroin or opium as ingredient. 
Dormancy. Lapse in the executability of a judgment, 
and also in the effectiveness of the judgment lien, which 
is cured through revival of the judgment. 
Dormant. Literally, sleeping; hence, inactive; in abey
ance; unknown; concealed; silent. 
Dormant claim. One which is in abeyance. 
Dormant corporation. An inactive but legal corpora
tion which is capable of being activated, but is presently 
not operating. 
Dormant execution. One which a creditor delivers to 
the sheriff with directions to levy only, and not to sell, 
until further orders, or until a junior execution is re
ceived. 
Dormant judgment. One which has not been satisfied, 
nor extinguished by lapse of time, but which has re
mained so long unexecuted that execution cannot now 
DOTAGE 
be issued upon it without first reviving the judgment, or 
one which has lost its lien on land from the failure to 
issue execution on it or take other steps to enforce it 
within the time limited by statute. See Judgment; Re
vival. 
Dormant partner. See Partner. 
Dormiunt aliquando leges, nunquam moriuntur I d6r
miy�nt rel�kw6ndow liyjiyz, n�IJkw�m moriy�nt�r I. The 
laws sometimes sleep, never die. 
Dorsum I d6rs�m/. Lat. The back. In dorso recordi, on 
the back of the record. 
Dos Id6ws/. In Roman law, dowry; a wife's marriage 
portion; all that property which on marriage is transfer
red by the wife herself or by another to the husband 
with a view of diminishing the burden which the mar
riage will entail upon him. It is of three kinds. Profec
titia dos is that which is derived from the property of 
the wife's father or paternal grandfather. That dos is 
termed adventitia which is not profectitia in respect to 
its source, whether it is given by the wife from her own 
estate or by the wife's mother or a third person. It is 
termed receptitia dos when accompanied by a stipulation 
for its reclamation by the constitutor on the termination 
of the marriage. 
In old English law, the portion given to the wife by 
the husband at the church door, in consideration of the 
marriage; dower; the wife's portion out of her deceased 
husband's estate in case he had not endowed her. 
Dos de dote peti non debet I d6ws diy d6wtiy petay non 
deb�t/. Dower ought not to be demanded of dower. A 
widow is not dowable of lands assigned to another wom
an in dower. 
Dos rationabilis I d6ws rresh�neyb�bs/. A reasonable 
marriage portion. A reasonable part of her husband's 
estate, to which every widow is entitled, of lands of 
which her husband may have endowed her on the day of 
marriage. Dower, at common law. 2 Bl.Comm. 134. 
Dos rationabilis vel legitima est cujuslibet mulieris 
de quocunque tenemento tertia pars omnium terra
rum et tenementorum, qure vir suus tenuit in domi
nio suo ut de feodo, etc. I d6ws rresh�neyb�bs vel 
l�jit�m� est kyuwj�sl�b�t myuwliyir�s diy kwowk�lJkwiy 
ten�men tow t�rshiy� parz 6mniy�m tehrer�m et 
ten�ment6r�m, kwiy v�r s(y)uw�s tenyuw�t in 
d�min(i)yow s(y)uwow �t diy fyuwdow/. Reasonable or 
legitimate dower belongs to every woman of a third part 
of all the lands and tenements of which her husband 
was seised in his demesne, as of fee, etc. 
Dossier I dos(i)yey I d6s(i)yey I. Fr. A brief; a bundle of 
papers. 
Dot. (A French word, adopted in Louisiana.) The for
tune, portion, or dowry which a woman brings to her 
husband by the marriage. 
DOT. Department of Transportation. 
Dotage Id6wt�j/. Senility. That feebleness of the men
tal faculties which proceeds from old age. It is a dimi-

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DOTAGE 
nution or decay of that intellectual power which was 
once possessed. Also called "second childhood." 
Relating to woman's marriage dowry. 
Dotal I d6wt;}1/ . Relating to the dos or portion of a 
woman; constituting her portion; comprised in her por
tion. 
Dotalitium Idowt;}lishiy;}m/. In canon and feudal law, 
dower. 
Dotal property Id6wt;}1 pr6p;:!rtiy/. In the civil law, in 
Louisiana, property which the wife brings to the hus
band to assist him in bearing the expenses of the mar
riage establishment. Extradotal property, otherwise 
called "paraphernal property," is that which forms no 
part of the dowry. Fleitas v. Richardson, 147 U.S. 550, 
13 S.Ct. 495, 37 L.Ed. 276. See also Community. 
Dotation Idowteysh;}n/. The act of giving a dowry or 
portion; endowment in general, including the endow
ment of a hospital or other charitable institution. 
Dote Id6wtey/, n. In Spanish law, the marriage portion 
of a wife. The property which the wife gives to the 
husband on account of marriage, or for the purpose of 
supporting the matrimonial expenses. 
Dote, v. To be besotted, delirious, silly, or insane. 
Dote assignanda I d6wtiy res;}gnrend;}I . A writ which 
lay for a widow, when it was judicially ascertained that 
a tenant to the king was seised of tenements in fee or 
fee-tail at the day of his death, and that he held of the 
king in chief. In such case the widow might come into 
chancery, and then make oath that she would not marry 
without the king's leave, and then she might have this 
writ. These widows were called the "king's widows." 
Dote unde nihil habet I d6wtiy �ndiy miy(h);}l heyb;}t/. 
"Dower from whence she has nothing." An English 
writ which lay for a widow to whom no dower had been 
assigned. 
Doti lex favet; prremium pudoris est; ideo parcatur 
I d6wday leks feyv;}t, priymiy;}m pyuwd6r;}s est, idiyow 
parkeyt;}r I. The law favors dower; it is the reward of 
chastity; therefore let it be preserved. 
Dotis administratio Id6wt;}s ;}dmin;}streysh(iy)ow/. Ad
measurement of dower, where the widow holds more 
than her share, etc. 
Dotissa Idowtis;}/. A dowager. 
Double. Twofold; acting in two capacities or having two 
aspects; multiplied by two. This term has ordinarily 
the same meaning in law as in popular speech. The 
principal compound terms into which it enters are noted 
below. 
Double adultery. Adultery committed by two persons 
each of whom is married to another as distinguished 
from "single" adultery, where one of the participants is 
unmarried. 
Double assessment. The imposition of same tax, by 
same taxing power, upon same subject matter. Aragon 
490 
v. Empire Gold Mining & Milling Co., 47 N.M. 299, 142 
P.2d 539, 54!. 
Double commissions. Commissions or fees paid by both 
seller and buyer or paid to the same person in different 
capacities, such as executor and trustee. 
Double complaint Id�b;}l k;}mpleyntl, double quarrel 
rkw6hr;}1/ or duplex querela Id(y)uwpleks kw;}riyl;}/. 
A grievance made known by a clerk or other person, to 
the archbishop of the province, against the ordinary, for 
delaying or refusing to do justice in some cause ecclesi
astical, as to give sentence, institute a clerk, etc. It is 
termed a "double complaint," because it is most com
monly made against both the judge and him at whose 
suit justice is denied or delayed; the effect whereof is 
that the archbishop, taking notice of the delay, directs 
his letters, under his authentical seal, to all clerks of his 
province, commanding them to admonish the ordinary, 
within a certain number of days, to do the justice 
required, or otherwise to appear before him or his offi
cial, and there allege the cause of his delay; and to 
signify to the ordinary that if he neither perform the 
thing enjoined, nor appear nor show cause against it, he 
himself, in his court of audience, will forthwith proceed 
to do the justice that is due. In current usage, a 
complaint in the nature of an appeal from the ordinary 
to his next immediate superior, as from a bishop to an 
archbishop. This complaint is available to a clergyman 
who, having been presented to a living, is refused insti
tution by the ordinary. See Dupl icity. 
Double costs. See Costs. 
Double creditor. One who has a lien on two funds. 
Double damages. See Damages. 
Double eagle. A gold coin of the United States of the 
value of twenty dollars. 
Double entry. A system of bookkeeping, in which the 
entries are posted twice into the ledger, once as a credit 
and once as a debit. 
Double (or multiple) hearsay. Hearsay statements 
which contain further hearsay statements within them. 
A statement made outside of court is hearsay when 
introduced in court to prove the truth of the statement. 
However, certain exceptions permit the introduction of 
hearsay if the out-of-court statement was made on the 
personal knowledge of the declarant as in the case of a 
declaration of a deceased person. If such statement of 
the deceased person was not made on his personal 
knowledge, the hearsay would be double or totem pole 
hearsay. 
An out-of-court admission of a defendant repeated by 
a non-testifying co-conspirator. State v. Farber, 642 
P.2d 668, 675, 56 Or.App. 35 !. 
Double house. A building having accommodations for 
two families, divided vertically instead of horizontally. 
Also called "duplex". 
Double indemnity. Payment of twice the basic benefit 
in event of loss resulting from specified causes or under 
specified circumstances. Provision in life insurance con-

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491 
tract requiring payment of twice the face amount of the 
policy by the insurer in the event of death by accidental 
means. 
Double insurance. Exists where the same person is 
insured by several insurers separately in respect to the 
same subject and interest. 
Double jeopardy. Fifth Amendment guarantee, en
forceable against states through Fourteenth Amend
ment, protects against second prosecution for same of
fense after acquittal or conviction, and against multiple 
punishments for same offense. North Carolina v. 
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The 
evil sought to be avoided is double trial and double 
conviction, not necessarily double punishment. Breed et 
al. v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346. 
See also Former jeopardy; Jeopardy; Same evidence test. 
Double patenting. A doctrine of patent law which 
prevents single patentee from obtaining two patents on 
same invention. Anchor Hocking Corp. v. Eyelet Spe
ciality Co., D.C.Del., 377 F.Supp. 98, 101. The test 
respecting "double patenting" is whether the claims of 
both patents, when properly construed in the light of the 
descriptions given, define essentially the same things. 
Occurs only when claims of two patents issued to one 
applicant are the same. 
Double plea, double pleading. See Dupl icity; Plea; 
Pleadings. 
Double proof. Species of evidence required for convic
tion of certain crimes in which the government must 
offer corroboration. 
Double recovery. Recovery which represents more 
than the total maximum loss which all parties have 
sustained. 
Double rent. In English law, rent payable by a tenant 
who continues in possession after the time for which he 
has given notice to quit, until the time of his quitting 
possession. See the Distress for Rent Act, 1737, § 18. 
Doubles. Letters-patent. 
Double standard Set of principles which permit great
er opportunity for one class of people than another and 
commonly based on differences such as sex, race or color 
and hence invidious standards which may offend equal 
protection of law to the discriminated minority. See 
Discrimination. 
Double taxation. The taxing of the same item or piece 
of property twice to the same person, or taxing it as the 
property of one person and again as the property of 
another, but this does not include the imposition of 
different taxes concurrently on the same property or 
income (e.g. federal and state income taxes), nor the 
taxation of the same piece of property to different per
sons when they hold different interests in it or when it 
represents different values in their hands, as when both 
the mortgagor and mortgagee of property are taxed in 
respect to their interests in it, or when a tax is laid upon 
the profits of a corporation and also upon the dividends 
paid to its shareholders. "Double taxation" means tax-
DOUBT 
ing twice for the same purpose in the same year some of 
the property in the territory in which the tax is laid 
without taxing all of it. Amarillo-Pecos Valley Truck 
Lines v. Gallegos, 44 N.M. 120, 99 P.2d 447, 451. To 
constitute "double taxation," two taxes must be imposed 
on same property by same governing body during same 
taxing period and for same taxing purpose. Second St. 
Properties, Inc. v. Fiscal Court of Jefferson County, Ky., 
445 S.W.2d 709, 715. 
Term also refers to the structure of taxation under the 
Internal Revenue Code which subjects income earned by 
a corporation to an income tax at the corporate level 
and a second tax at the shareholder level if the same 
income is distributed to shareholders in the form of 
dividends. 
Double tax rule. Collections made in taxable year on 
sales made in prior years, and which had already been 
taxed in prior years. Hoover-Bond Co. v. Denman, C.C. 
A.Ohio, 59 F.2d 909, 910. 
Double use. In patent law, an application of a principle 
or process, previously known and applied, to some new 
use, but which does not lead to a new result or the 
production of a new article. 
Double value. In old English law, a penalty on a tenant 
holding over after his landlord's notice to quit. By 4 
Geo. II, c. 28, § 1, it is enacted that if any tenant for life 
or years hold over any lands, etc., after the determina
tion of his estate, after demand made, and notice in 
writing given, for delivering the possession thereof, by 
the landlord, or the person having the reversion or 
remainder therein, or his agent thereunto lawfully au
thorized, such tenant so holding over shall pay to the 
person so kept out of possession at the rate of double the 
yearly value of the lands, etc., so detained, for so long a 
time as the same are detained. 
Double voucher. In old English law, this was when a 
common recovery was had, and an estate of freehold was 
first conveyed to any indifferent person against whom 
the prrecipe was brought, and then he vouched the 
tenant in tail, who vouched over the common vouchee. 
For, if a recovery were had immediately against a ten
ant in tail, it barred only the estate in the premises of 
which he was then actually seised, whereas, if the recov
ery were had against another person, and the tenant in 
tail were vouchee, it barred every latent right and 
interest which he might have in the lands recovered. 2 
Bl.Comm. 359. 
Double waste. When a tenant bound to repair suffers a 
house to be wasted, and then unlawfully fells timber to 
repair it, he is said to commit double waste. 
Double will. A will in which two persons join, each 
leaving his property and estate to the other, so that the 
survivor takes the whole. See Recipr ocal wills. 
Doubt, v. To question or hold questionable. 
Doubt, n. Uncertainty of mind; the absence of a settled 
opinion or conviction; the attitude of mind towards the 
acceptance of or belief in a proposition, theory, or state-

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DOUBT 
ment, in which the judgment is not at rest but inclines 
alternately to either side. 
Reasonable doubt. This is a term often used, probably 
quite well understood, but not easily defined. It does 
not mean a mere possible doubt, because everything 
relating to human affairs, and depending on moral evi
dence, is open to some possible or imaginary doubt. It is 
that state of the case which, after the entire comparison 
and consideration of all the evidence, leaves the minds 
of jurors in that condition that they cannot say they feel 
an abiding conviction to a moral certainty of the truth 
of the charge. If upon proof there is reasonable doubt 
remaining, the accused is entitled to the benefit of it by 
an acquittal; for it is not sufficient to establish a proba
bility, though a strong one, arising from the doctrine of 
chances, that the fact charged is more likely to be true 
than the contrary, but the evidence must establish the 
truth of the fact to a reasonable and moral certainty, i.e. 
a certainty that convinces and directs the understanding 
and satisfies the reason and judgment of those who are 
bound to act conscientiously upon it. This is proof 
beyond reasonable doubt; because if the law, which 
mostly depends upon considerations of a moral nature, 
should go further than this, and require absolute cer
tainty, it would exclude circumstantial evidence alto
gether. 
Proof "beyond a reasonable doubt" is not beyond all 
possible or imaginary doubt, but such proof as precludes 
every reasonable hypothesis except that which it tends 
to support. It is proof "to a moral certainty"; such 
proof as satisfies the judgment and consciences of the 
jury, as reasonable men, and applying their reason to 
the evidence before them, that the crime charged has 
been committed by the defendant, and so satisfies them 
as to leave no other reasonable conclusion possible. 
A "reasonable doubt" is such a doubt as would cause a 
reasonable and prudent man in the graver and more 
important affairs of life to pause and hesitate to act 
upon the truth of the matter charged. But a reasonable 
doubt is not a mere possibility of innocence, nor a 
caprice, shadow, or speculation as to innocence not aris
ing out of the evidence or the want of it. 
See also Reasonable doubt. 
Doubtful title. One as to the validity of which there 
exists some doubt, either as to matter of fact or of law; 
one which invites or exposes the party holding it to 
litigation. Barrett v. McMannis, 153 Kan. 420, 110 P.2d 
774, 778. Distinguished from a "marketable" title, 
which is of such a character that the courts will compel 
its acceptance by a purchaser who has agreed to buy the 
property or has bid it in at public sale. See Marketable 
title. 
Doun / down/. L. Fr. A gift. Otherwise written "don " 
and "done. " The thirty-fourth chapter of Britton is 
entitled "De Douns. " 
Do ut des / dow ;)t diyz/. Lat. I give that you may give; 
I give [you] that you may give [me]. A formula in the 
civil law, constituting a general division under which 
those contracts (termed "innominate") were classed in 
492 
which something was given by one party as a considera
tion for something given by the other. 
Do ut facias / dow ;)t feys(h)(i)y;:)s/. Lat. I give that you 
may do; I give [you] that you may do or make [for me]. 
A formula in the civil law, under which those contracts 
were classed in which one party gave or agreed to give 
money, in consideration the other party did or per
formed certain work. In this and the foregoing phrase, 
the conjunction "ut" is not to be taken as the technical 
means of expressing a consideration. In the Roman 
usage, this word imported a modus, that is, a qualifica
tion; while a consideration (causa) was more aptly ex
pressed by the word "quia. " 
Dovetail seniority. Combining two or more seniority 
lists (usually of different companies being merged) into a 
master seniority list, with each employee keeping the 
seniority he had previously acquired even though he 
may thereafter be employed by a new employer. 
Dowable / daw;:)b;:)lI. Subject to be charged with dower; 
as dowable lands. Entitled or entitling to dower. Thus, 
a dowable interest in lands is such as entitles the owner 
to have such lands charged with dower. 
Dowager /daw;:)j;:)r/. A widow who is endowed, or who 
has a jointure in lieu of dower. Widow holding property 
or a title received from her deceased husband. In Eng
land, this is a title or addition given to the widows of 
princes, dukes, earls, and other noblemen, to distinguish 
them from the wives of the heirs, who'have right to bear 
the title. 1 Bl.Comm. 224. 
Dowager-queen / daw;:)j;:)r kwiyn/. The widow of the 
king. As such she enjoys most of the privileges belong
ing to her as queen consort. It is not treason to conspire 
her death or violate her chastity, because the succession 
to the crown is not thereby endangered. No man, 
however, can marry her without a special license from 
the sovereign, on pain of forfeiting his lands or goods. 1 
Bl.Comm. 233. 
Dower. The provision which the law makes for a widow 
out of the lands or tenements of her husband, for her 
support and the nurture of her children. 2 Bl.Comm. 
130; In re Miller's Estate, 44 N.M. 214, 100 P.2d 908, 
911. A species of life-estate which a woman is, by law, 
entitled to claim on the death of her husband, in the 
lands and tenements of which he was seised in fee 
during the marriage, and which her issue, if any, might 
by possibility have inherited. The life estate to which 
every married woman is entitled on death of her hus
band, intestate, or, in case she dissents from his will, 
one-third in value of all lands of which husband was 
beneficially seized in law or in fact, at any time during 
coverture. 
Dower has been abolished in the majority of the states 
and materially altered in most of the others. 
See also Curtesy; Election (Law of wills); Election by 
spouse; Inchoate dower. 
Dower ad ostium ecclesire / daw;:)r red ostiy;:)m ;:)kliyzi
yiy/. Dower at the church door or porch. An ancient 
kind of dower in England, where a man (being tenant in

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fee-simple, of full age), openly at the church door, where 
all marriages were formerly celebrated, after affiance 
made and troth plighted between them, endowed his 
wife with the whole of his lands, or such quantity as he 
pleased, at the same time specifying and ascertaining 
the same. 2 Bl.Comm. 133. 
Dower by common law. The ordinary kind of dower in 
English and American law, consisting of a life interest 
in one-third of the lands of which the husband was 
seised in fee at any time during the coverture. 2 Bl. 
Comm. 132. Abolished by the Administration of Estates 
Act, 1945, § 45. 
Dower by custom. A kind of dower in England, regu
lated by custom, where the quantity allowed the wife 
different from the proportion of the common law; as 
that the wife should have half the husband's lands; or, 
in some places, the whole; and, in some, only a quarter. 
2 Bl.Comm. 132. 
Dower de la plus belle (de la pluis beale) I daw�r d� la 
plyuw bEM. L. Fr. Dower of the fairest [part]. A 
species of ancient English dower, incident to the old 
tenures, where there was a guardian in chivalry, and 
the wife occupied lands of the heir as guardian in 
socage. If the wife brought a writ of dower against such 
guardian in chivalry, he might show this matter, and 
pray that the wife might be endowed de la plus belle of 
the tenement in socage. This kind of dower was abol
ished with the military tenures. 2 Bl.Comm. 132. 
Dower ex assensu patris I daw�r eks �sens(h)(y)uw 
pretr�s/. Dower by the father's assent. A species of 
dower ad ostium eccles ire, made when the husband's 
father was alive, and the son, by his consent expressly 
given, endowed his wife with parcel of his father's lands. 
2 Bl.Comm. 133. 
Dower unde nihil habet I daw�r �ndiy nay(h)�l heyb�t/. 
A writ of right which lay for a widow to whom no dower 
had been assigned. 
Dow Jones Average. A stock market performance indi
cator that consists of the price movements in the top 30 
industrial companies in the United States. 
DowIe stones. Stones dividing lands, etc. 
Dowment. In old English law, endowment; dower. 
Down payment. The portion of purchase price which is 
generally required to be paid at time purchase and sale 
agreement is signed and is generally paid in cash or its 
equivalent. An amount of money paid to the seller at 
the time of sale, which represents only a part of the 
total cost. See also Earnest money. 
Dowress I daw(�)r�s/. A woman entitled to dower; a 
tenant in dower. 
Dowry. The property which a woman brings to her 
husband in marriage; also sometimes called a "portion." 
See Dos. 
Dozen peers I d�z�n pirz/. Twelve peers assembled at 
the instance of the barons, in the reign of Henry III, to 
DRAFT 
be privy counselors, or rather conservators of the king
dom. 
D. P. An abbreviation for Domus Procerum, the house of 
lords. 
Dr. An abbreviation for "doctor". Also, in commercial 
usage, for "debtor," indicating the items or particulars 
in a bill or in an account-book chargeable against the 
person to whom the bill is rendered or in whose name 
the account stands, as opposed to "Cr." ("Credit" or 
"creditor"), which indicates the items for which he is 
given credit. 
Drachma I drrekm�/. A term employed in old pleadings 
and records, to denote a groat. 
An Athenian silver coin, of the value of about fifteen 
cents. 
Draconian laws I dr�k6wniy�n 16z/. A code of laws 
prepared by Draco, the celebrated lawgiver of Athens. 
These laws were exceedingly severe, and the term is now 
sometimes applied to any laws of unusual harshness. 
Draff. Waste matter, sweepings, refuse, lees, or dregs. 
In weighing commodities the term signifies dust and 
dirt, and not what is generally meant by "draught" or 
"draft" (q.v.). 
Draft. A written order by the first party, called the 
drawer, instructing a second party, called the drawee 
(such as a bank), to pay money to a third party, called 
the payee. An order to pay a sum certain in money, 
signed by a drawer, payable on demand or at a definite 
time, and to order or bearer. People v. Norwood, 26 
Cal.App.3d 148, 103 Cal.Rptr. 7, 11. An unconditional 
order to pay money drawn by drawer on drawee to the 
order of the payee; same as a bill of exchange. U.C.C. 
§ 3-104. See also Check; Documentary draft; Redr aft; 
Sight draft; Trade acceptance. 
A tentative, provisional, or preparatory writing out of 
any document (as a will, contract, lease, etc.) for pur
poses of discussion and correction, which is afterwards 
to be prepared in its final form. 
Compulsory conscription of persons into military ser
vice. 
Also, a small arbitrary deduction or allowance made 
to a merchant or importer, in the case of goods sold by 
wright or taxable by weight, to cover possible loss of 
weight in handling or from differences in scales. 
Bank draft. One drawn by one bank on another. 
Clean draft. One which has no shipping documents 
attached. 
Documentary draft. One to which various shipping doc
uments are attached. 
Overdraft. Writing a check for more money than is in 
account. 
Sight draft. One which is payable on presentation or 
demand. UCC § 3-108. 
Time draft. One payable a certain number of days after 
sight or after presentation for acceptance. The number 
of days must be specified. UCC § 3-109.

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DRAFT BOARD 
Draft board. Federal agency that registers, classifies 
and selects men for compulsory military service. See 
also Selective Service System. 
Draftsman. Any one who draws or frames a legal doc
ument, e.g., a will, conveyance, pleading, etc. One who 
draws plans and specifications for machinery, struc
tures, etc. 
Dragnet clause. Provision in a mortgage in which 
mortgagor gives security for past and future advances as 
well as present indebtedness. A type of mortgage provi
sion that attempts to make the mortgaged real estate 
security for other, usually unspecified, debts that the 
mortgagor may already or in the future owe to the 
mortgagee. While it is a species of future advances 
mortgage, the mortgagor and mortgagee rarely have in 
mind any specific future advances. 
Drago doctrine. The principle asserted by Luis Drago, 
Minister of Foreign Affairs of the Argentine Republic, in 
a letter to the Argentine Minister at Washington, De
cember 29, 1902, that the forcible intervention of states 
to secure the payment of public debts due to their 
citizens from foreign states is unjustifiable and danger
ous to the security and peace of the nations of South 
America. The subject was brought before the Confer
ence by the United States and a Convention wa,s adopted 
in which the contracting powers agreed, with some re
strictive conditions, not to have recourse to armed force 
for the recovery of contract debts claimed by their 
nationals against a foreign state. See Calvo doctrine. 
Drain, v. To conduct water from one place to another, 
for the purpose of drying the former. To make dry; to 
draw off water; to rid land of its superfluous moisture 
by adapting or improving natural water courses and 
supplementing them, when necessary, by artificial ditch
es. To "drain," in its larger sense, includes not only the 
supplying of outlets and channels to relieve the land 
from water, but also the provision of ditches, drains, and 
embankments to prevent water from accumulating. 
To totally consume or exhaust. 
Drain, n. A trench or ditch to convey water from wet 
land; a channel through which water may flow off. The 
word has no technical legal meaning. Any hollow space 
in the ground, natural or artificial, where water is 
collected and passes off, is a ditch or drain. 
Also, sometimes, the easement or servitude (acquired 
by grant or prescription) which consists in the right to 
drain water through another's land. See Drainage rights. 
Public drainage way. The land reserved or dedicated 
for the installation of storm water sewers or drainage 
ditches, or required along a natural stream or water
course for preserving the channel and providing for the 
flow of water to safeguard the public against flood 
damage, sedimentation, and erosion. 
Drainage district. A political subdivision of the state, 
created for the purpose of draining and reclaiming wet 
and overflowed land, as well as to preserve the public 
health and convenience. 
494 
Drainage rights. A landowner may not obstruct or 
divert the natural flow of a watercourse or natural 
drainage course to the injury of another. In urban 
areas, "natural drainage course" is narrowly interpreted 
to include only streams with well-defined channels and 
banks. In rural areas, the term is more broadly con
strued, apparently including the flow and direction of 
diffused surface waters. Chamberlin v. Ciaffoni, 373 Pa. 
430, 436, 437, 96 A.2d 140, 143. See also Water (Water 
rights). 
Dram. A drink of some substance containing alcohol; 
something which can produce intoxication. An apothe
cary system measurement of fluid, roughly equivalent to 
4 or 5 cc, or one teaspoonful. 
Drama. A term descriptive of any representation in 
which a story is told, a moral conveyed, or the passions 
portrayed, whether by words and actions combined, or 
by mere actions alone. 
Dramatic composition. In copyright law, a literary 
work setting forth a story, incident, or scene from life, in 
which, however, the narrative is not related, but is 
represented by a dialogue and action; may include a 
descriptive poem set to music, or a pantomime. 
Dram-shop. A drinking establishment where liquors 
are sold to be drunk on the premises; a bar or saloon. 
Dram Shop Acts. Many states have Dram Shop or Civil 
Liability Acts which impose liability on the seller of 
intoxicating liquors (which may or may not include 
beer), when a third party is injured as a result of the 
intoxication of the buyer where the sale has caused or 
contributed to such intoxication. Some acts apply to 
gifts as well as sales. Such acts protect the third party 
not only against personal injuries and property damages 
resulting directly from affirmative acts of the intoxicat
ed man, such as resulting from negligent operation of 
vehicle or assault and battery, but also against the loss 
of family support due to such injuries. 
Draw, v. To draw a firearm or deadly weapon is to point 
it intentionally. To draw a bead on; to bring into line 
with the bead or fore sight of a rifle and the hind sight; 
to aim at. 
The act of a drawer in creating a draft. To draw a bill 
of exchange, check, or draft, is to write (or cause it to be 
written) and sign it; to make, as a note. 
To compose and write out in due form, as, a deed, 
complaint, petition, memorial, etc. 
To draw a jury is to select the persons who are to 
compose it, either by taking their names successively, 
but at hazard, from the jury box, or by summoning them 
individually to attend the court. See Impanel. 
In old criminal practice, to drag (on a hurdle) to the 
place of execution. Anciently no hurdle was allowed, 
but the criminal was actually dragged along the road to 
the place of execution. A part of the ancient punish
ment of traitors was to be thus drawn. 4 Bl.Comm. 92, 
377. 
To withdraw money; i.e., to take out money from a 
bank, treasury, or other depository in the exercise of a

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lawfu� right and in a lawful manner. To periodically 
advance money on a construction loan agreement or 
against future sales commissions. See also Drawing ac
count. 
Drawback. In the customs laws, an allowance made by 
the government upon the duties due on imported mer
chandise when the importer, instead of selling it here, 
re-exports it; or the refunding of such duties if already 
paid. This allowance amounts, in some cases, to the 
whole of the original duties; in others, to a part only. 
See 19 U.S.C.A. § 1313. 
Drawee. The person on whom a bill or draft is drawn. 
A person to whom a bill of exchange or draft is directed, 
and who is requested to pay the amount of money 
therein mentioned. The drawee of a check is the bank 
on which it is drawn. 
When drawee accepts, he engages that he will pay the 
instrument according to its tenor at the time of his 
engagement or as completed. U.C.C. § 3-413(1). 
Drawer. The person who draws a bill or draft. The 
drawer of a check is the person who signs it. The 
person who creates or executes a draft, that is, issues it, 
and in signing the instrument gives the order to pay 
contained therein. 
The drawer engages that upon dishonor of the draft 
and any necessary notice of dishonor or protest, he will 
pay the amount of the draft to the holder or to any 
indorser who takes it up. The drawer may disclaim this 
liability by drawing without recourse. U.C.C. § 3-413(2). 
Drawing account. Fund of money from which salesper
son or other employees may draw in anticipation of 
future earnings or commissions; may be used to pay 
current expenses. 
Drawing lots. An act in which selection is based on 
pure chance and in which the result depends upon the 
particular lot which is drawn. See also Lottery. 
Drawlatches I dr6lrech::lz/. Thieves; robbers. 
Drayage. A charge for the local transportation of prop
erty. Similar to cartage. 
Dred Scott Case. The case in which the United States 
Supreme Court held that descendants of Africans who 
were imported into this country, and sold as slaves, were 
not included nor intended to be included under the word 
"Citizens" in the Constitution, whether emancipated or 
not, and remained without rights or privileges except 
such as those which the government might grant them. 
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 
691. 
Dreit-dreit I driyt-driyt/. Droit-droit. (Also written 
without the hyphen.) Double right. A union of the 
right of possession and the right of property. 2 Bl. 
Comm. 199. 
Drenches, or drenges. In Saxon law, tenants in capite. 
They are said to be such as, at the coming of William 
the Conqueror, being put out of their estates, where 
afterwards restored to them, on their making it appear 
DRIVING WHILE INTOXICATED 
that they were the true owners thereof, and neither in 
auxilio or consilio against him. 
Drengage I dre1J(g)::Ij/. The tenure by which the drench
es, or drenges, held their lands. A variety of feudal 
tenure by serjeanty (q.v.), often occurring in the north
ern counties of England, involving a kind of general 
service. 
Driftland, drofland, or dryfland. A Saxon word, signi
fying a tribute or yearly payment made by some tenants 
to the king, or their landlords, for driving their cattle 
through a manor to fairs or markets. 
Drifts of the forest. In old English law, a view or 
examination of what cattle were in a forest, chase, etc., 
that it could be known whether such be surcharged or 
not; and whose the beasts were, and whether they were 
commonable. These drifts were made at certain times 
in the year by the officers of the forest, when all cattle 
were driven into some pound or place inclosed, for the 
before-mentioned purposes, and also to discover whether 
any cattle of strangers be there, which ought not to 
common. 
Drift-stuff. This term signifies, not goods which are the 
subject of salvage, but matters floating at random, with
out any known or discoverable ownership, which, if cast 
ashore, will probably never be reclaimed, but will, as a 
matter of course, accrue to the riparian proprietor. 
Drinking-shop. A place where intoxicating liquors are 
sold to be drunk on the premises; a bar or saloon. 
Drip rights. A species of easement or servitude obligat
ing one man to permit the water falling from another 
man's house to fall upon his own land. See also Eaves
drip. 
Drive-it-yourself cars. A term used to describe automo
biles which their owners, as a regular business, rent out 
for hire without furnishing drivers. More commonly 
termed "rental" or "leased" cars. 
Driver. A person actually doing driving, whether em
ployed by owner to drive or driving his own vehicle. 
Driver's license. The certificate or license issued by a 
state which authorizes a person to operate a motor 
vehicle. Generally, a written and driving examination 
is required for obtaining such. 
Driving. To urge forward under guidance, compel to go 
in a particular direction, urge onward, and direct the 
course of. 
Driving while intoxicated (DWI). An offense commit
ted by one who operates a motor vehicle while under the 
influence of intoxicating liquor or drugs. A showing of 
complete intoxication is not required. State statutes 
specify levels of blood alcohol content at which a person 
is presumed to be under the influence of intoxicating 
liquor. See also Blood alcohol count; Blood test evi
dence; Breathalyzer test; Consent (Implied consent); 
Drunk-o-meter; Field sobriety tests; Intoxilyzer; Intoxime
ter; Sobriety checkpoint.

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DROFLAND 
Drofland Idrowfh nd/. In old English law, a quit rent, 
or yearly payment, formerly made by some tenants to 
the king, or their landlords, for driving their cattle 
through a manor to fairs or markets. 
Droit Fr. Idr(w)o, Engl. Idroyt/. In French law, right, 
justice, equity, law, the whole body of law; also a right. 
This term exhibits the same ambiguity which is dis
coverable in the German equivalent, "recht" and the 
English word "right. " On the one hand, these terms 
answer to the Roman "jus," and thus indicate law in the 
abstract, considered as the foundation of all rights, or 
the complex of underlying moral principles which im
part the character of justice to all positive law, or give it 
an ethical content. Taken in this abstract sense, the 
terms may be adjectives, in which case they are equiva
lent to "just," or nouns, in which case they may be 
paraphrased by the expressions "justice," "morality," or 
"equity." On the other hand, they serve to point out a 
right; that is, a power, privilege, faculty, or demand, 
inherent in one person, and incident upon another. In 
the latter signification, droit (or recht or right) is the 
correlative of "duty" or "obligation." In the former 
sense, it may be considered as opposed to wrong, injus
tice, or the absence of law. Droit has the further 
ambiguity that it is sometimes used to denote the exist
ing body of law considered as one whole, or the sum 
total of a number of individual laws taken together. See 
Jus; Recht; Right. 
A person was said to have droit droit, plurimum juris, 
and plurimum possession is, when he had the freehold, 
the fee, and the property in him. 
In old English law, law; right; a writ of right. 
Aut re droit. The right of another. 
Droit-close I droyt klows/. An ancient writ, directed to 
the lord of ancient demesne on behalf of those of his 
tenants who held their lands and tenements by charter 
in fee-simple, in fee-tail, for life, or in dower. 
Droit common Idroyt kom�n/. The common law. 
Droit coutumier Idrwo kuwtyuwmyey/. Common law. 
Droit d'accession I drwo daksesyown/. That property 
which is acquired by making a new species out of the 
material of another. It is equivalent to the Roman 
"specificatio. " 
Droit d'accroissement Idrwo dakr(o)wasmon/. The 
right which an heir or legatee has of combining with his 
own interest in a succession the interest of a coheir or 
colegatee who either refuses to or cannot accept his 
interest. 
Droit d'aubaine Idrwo dowbe(y)n/. A rule by which all 
the property of a deceased foreigner, whether movable 
or immovable, was confiscated to the use of the state, to 
the exclusion of his heirs, whether claiming ab intestato 
or under a will of the deceased. Finally abolished in 
1819. 
Droit de bris I drwo d�briy I. A right formerly claimed 
by the lords of the coasts of certain parts of France, to 
shipwrecks, by which not only the property, but the 
496 
persons of those who were cast away, were confiscated 
for the prince who was lord of the coast. Otherwise 
called "droit de bris sur le naufrage." This right pre
vailed chiefly in Bretagne, and was solemnly abrogated 
by Henry III as duke of Normandy, Aquitaine, and 
Guienne, in a charter granted A.D. 1226, preserved 
among the rolls at Bordeaux. 
Droit de detraction I drwo d� deytraksyown/. A tax 
upon the removal from one state or country to another 
of property acquired by succession or testamentary dis
position; it does not cover a tax upon the succession to 
or transfer of property. Cf Duties of detraction. 
Droit de garde Idrwo d� gard/. In French feudal law, 
right of ward. The guardianship of the estate and 
person of a noble vassal, to which the king, during his 
minority, was entitled. 
Droit de gite Idrwo d� zhiyt/. In French feudal law, the 
duty incumbent on a roturier, holding lands within the 
royal domain, of supplying board and lodging to the king 
and to his suite while on a royal progress. 
Droit de greffe Idrwo d� gref/. In old French law, the 
right of selling various offices connected with the custo
dy of judicial records or notarial acts. A privilege of the 
French kings. 
Droit de maitrise Idrwo d(�) meytriyzl. In old French 
law, a charge payable to the crown by any one who, 
after having served his apprenticeship in any commer
cial guild or brotherhood, sought to become a master 
workman in it on his own account. 
Droit de naufrage Idrwo d(�) nowfrazh/. The right of a 
seigneur, who owns the seashore, or the king, when a 
vessel is wrecked, to take possession of the wreckage and 
to kill the crew or sell them as slaves. 
Droit de prise Idrwo d(�) priyzl. In French feudal law, 
the duty (incumbent on a roturier) of supplying to the 
king on credit, during a certain period, such articles of 
domestic consumption as might be required for the royal 
household. 
Droit de quint Idrwo d� kren(t)/. In French feudal law, 
a relief payable by a noble vassal to the king as his 
seigneur, on every change in the ownership of his fief. 
Droit de suite I drwo d� swiyt/. The right of a creditor 
to pursue the debtor's property into the hands of third 
persons for the enforcement of his claim. 
Droit d'execution Idrwo dekseyky"Uwsyown/. The right 
of a stockbroker to sell the securities bought by him for 
account of a client, if the latter does not accept delivery 
thereof. The same expression is also applied to the sale 
by a stockbroker of securities deposited with him by his 
client, in order to guaranty the payment of operations 
for which the latter has given instructions. 
Droit-droit. A double right; that is, the right of posses
sion and the right of property. These two rights were, 
by the theory of our ancient law, distinct; and the above 
phrase was used to indicate the concurrence of both in 
one person, which concurrence was necessary to consti
tute a complete title to land.

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Droit ecrit I drwot eykriy I. In French law, the written 
law. The Roman civil law, or Corpus Juris Civilis. 
Droit international I drwot rentermisyowmill. Interna
tional law. 
Droit maritime Idrwo mariytiym/. Maritime law. 
Droit moral. A European doctrine of "artistic integrity" 
that gives artists the right to prevent others from alter
ing their work without permission. Non-pecuniary 
right based upon the dual relationship between society 
and its artists, and the artist and his work. The basic 
rights sought to be protected under this concept com
prise: the right to create; the right to disclose or pub
lish; the right to withdraw from publication; the right 
to be identified with the work; and, the right to integri
ty with respect to the work, including the right to object 
to the mutilation or distortion of the work. 
Droit naturel I drwo natyurell. The law of nature. 
Droit ne done pluis que soit demaunde I drwo n� don 
pwiy k� swo deymondey I. The law gives not more than 
is demanded. 
Droit ne poet pas morier I drwo n� pyuw pa mouriy I. 
Right cannot die. 
Droits civils I drwo sivil/. This phrase in French law 
denotes private rights, the exercise of which is indepen
dent of the status (qualite) of citizen. Foreigners enjoy 
them; and the extent of that enjoyment is determined 
by the principle of reciprocity. Conversely, foreigners 
may be sued on contracts made by them in France. 
Droits of admiralty I droyts �v redm�r�ltiy I. Rights or 
perquisites of the admiralty. A term applied to goods 
found derelict at sea. Applied also to property captured 
in time of war by non-commissioned vessels of a belliger
ent nation. In England, it has been usual in maritime 
wars for the government to seize and condemn, as droits 
of admiralty, the property of an enemy found in her 
ports at the breaking out of hostilities. The power to 
exercise such � right has not been delegated to, nor has 
it ever been claimed by, the United States government. 
Droitural I droych�r�l/. What belongs of right; relating 
to right; as real actions are either droitural or possesso
ry,-dr oitural when the plaintiff seeks to recover the 
property. 
Dromones, dromos, dromunda I dr�mowniyz, drow
mowz, dr�m�nd�/. These were at first high ships of 
great burden, but afterwards those which we now call 
"men-of-war." 
Drop. In English practice, when the members of a court 
are equally divided on the argument showing cause 
against a rule nisi, no order is made, i.e., the rule is 
neither discharged nor made absolute, and the rule is 
said to drop. In practice, there being a right to appeal, 
it has been usual to make an order in one way, the 
junior judge withdrawing his judgment. 
Drop-letter. A letter addressed for delivery in the same 
city or district in which it is posted. 
DRUNKARD 
Drop shipment delivery. Shipment of goods directly 
from manufacturer to dealer or consumer rather than 
first to wholesaler, though wholesaler still earns profit 
because he took order for such. 
Drop shipper. Type of wholesaler described above. 
Drove. A number of animals collected and driven to
gether in a body; a flock or herd of cattle in process of 
being driven, indefinite as to number, but including at 
least several. 
Drover's pass. A free pass given by a railroad company, 
accepting a drove of cattle for transportation, to the 
drover who accompanies and cares for the cattle on the 
train. 
Drug. An article intended for use in the diagnosis, cure, 
mitigation, treatment, or prevention of disease in man 
or other animals and any article other than food intend
ed to affect the structure or any function of the body of 
man or other animals. 21 U.S.C.A. § 321(g)(1). The 
general name of substances used in medicine; any sub
stance, vegetable, animal, or mineral, used in the compo
sition or preparation of medicines; any substance used 
as a medicine. See Controlled Substance Acts. 
Drug abuse. State of chronic or periodic intoxication 
detrimental to the individual and to society, produced by 
the repeated consumption of a drug, natural or synthet
ic. See also Addict; Drug dependence. 
The voluntary, habitual, and excessive use of drugs is 
a ground for divorce in many states. 
Drug addict. A person subject to drug abuse. See 
Addict; Drug abuse; Drug dependence. 
Drug dependence. Habituation to, abuse of, and/or 
addiction to a chemical substance. See Addict. 
Druggist. A dealer in drugs; one whose business is to 
mix, compound, dispense, and sell drugs. 
Drugless healer. Any person who practises or holds 
himself out in any way as practising the treatment of 
any ailment, disease, defect, or disability of the human 
body by manipulation, adjustment, manual or electroth
erapy, or by any similar method. State v. Houck, 32 
Wash.2d 681, 203 P.2d 693, 699. See Chiropractor. 
Drummer. A term applied to commercial agents who 
travel for wholesale merchants and supply the retail 
trade with goods or take orders for goods to be shipped 
to the retail dealer. Term most commonly refers to 
traveling salesmen. See also Commercial traveler. 
Drungarius Idr�1Jgeriy�s/. In old European law, the 
commander of a drungus, or band of soldiers. Applied 
also to a naval commander. 
Drungus I dr�1Jg�s/. In old European law, a band of 
soldiers (globus militum ). 
Drunk. See Drunkenness; Intoxication. 
Drunkard. One who is habitually intoxicated. A "com
mon" drunkard is defined by statute in some states as a 
person who has been convicted of drunkenness (or 
proved to have been drunk) a certain number of times

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DRUNKARD 
within a limited period. Elsewhere the word "common" 
in this connection is understood as being equivalent to 
"habitual." 
Drunkenness. State of intoxication. The condition of a 
person whose mind is affected by the consumption of 
intoxicating drinks; the state of one who is "drunk." 
The effect produced upon the mind or body by drinking 
intoxicating liquors to such an extent that the normal 
condition of the subject is changed and his capacity for 
rational action and conduct is substantially lessened. 
See also Driving while intoxicated; Intoxication. 
While some states have decriminalized public drunk
enness (e.g. Mass.), there is no constitutional infirmity in 
a criminal statute which penalizes being drunk in pub
lic. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 
L.Ed.2d 1254. 
Drunk-o-meter. Device used for measuring blood alco
hol content by chemical analysis of the breath. The 
results of such tests are generally used in prosecutions 
for drunk driving or operating a vehicle under the 
influence of liquor. See also Blood alcohol count; 
Breathalyzer test; Consent (Implied consent); Driving 
while intoxicated; Field sobriety tests; Intoxilyzer; Intoxim
eter. 
Dry, adj. In the vernacular, this term means desiccated 
or free from moisture; but, in legal use, it signifies 
formal or nominal, without imposing any duty or re
sponsibility, or unfruitful, without bringing any profit or 
advantage; e.g. dry trust. 
Dry, n. Term used to designate a person who is opposed 
to allowing the sale of intoxicating liquors; a prohibi
tionist, in contradistinction to a "wet," or antiprohibi
tionist. 
Dry check. Synonymous with "cold check", and "hot 
check". Elder v. Evatt, Tex.Civ.App., 154 S.W.2d 684, 
685. 
Dry-crreft. Witchcraft; magic. 
Dry exchange. In English law, a term formerly in use, 
said to have been invented for the purpose of disguising 
and covering usury; something being pretended to pass 
on both sides, whereas, in truth, nothing passed but on 
one side, in which respect it was called "dry." 
Dry hole agreement. A support agreement in which 
the contributing party agrees to make a cash contribu
tion in exchange for geological or drilling information, if 
a dry hole is drilled. 
Dry hole clause. A provision in an oil and gas lease 
specifying what a lessee must do to maintain the lease 
for the remainder of the primary term after drilling an 
unproductive well. A dry hole clause is intended to 
make clear that the lease may be maintained by pay
ment of delay rentals for the remainder of the primary 
term. 
Dry mortgage. One which creates a lien on land for the 
payment of money, but does not impose any personal 
liability upon the mortgagor, collateral to or over and 
above the value of the premises. 
498 
Dry receivership. Receivership wherein there is no 
equity to be administered for general creditors, even if 
action is in statutory form. 
Dry rent. Rent seck; a rent reserved without a clause of 
distress. 
Dry state. State wherein sale of intoxicating liquors is 
prohibited. 
Dry trust. A passive trust; one which requires no action 
on the part of the trustee beyond turning over money or 
property to the cestui que trust. 
Dual business. Such business must show units of sub
stantial separateness and completeness, such as might 
be maintained as an independent business and capable 
of producing profit in and of themselves. 
Dual capacity doctrine. Under this doctrine employer 
normally shielded from tort liability by exclusive reme
dy of workers' compensation law may become liable in 
tort to his employee if he occupies, in addition to his 
capacity as employer, a second capacity that confers on 
him obligations independent of those imposed on him as 
employer. Pavlek v. Forbes Steel and Wire Corp., 358 
Pa.Super. 316, 517 A.2d 564, 565. 
Dual citizenship. Citizenship in two different countries. 
Status of citizens of United States who reside within a 
state; i.e., persons who are born or naturalized in the 
U.S. are citizens of the U.S. and the state wherein they 
reside. 
Dual court system. Term descriptive of Federal and 
State court systems of United States. 
Dual distributor. A firm that sells goods simultaneous
ly to buyers on two different levels of the distribution 
chain-such as a manufacturer who sells directly to 
both wholesalers and retailers-is called a dual distribu
tor. 
Dual listing. See Listed security. 
Dual purpose doctrine. The dual purpose doctrine is 
that if the work of an employee creates a necessity for 
travel, he is in the course of his employment while doing 
that work even though at the same time he is serving 
some purpose of his own. Snowden v. Orscheln Bros. 
Truck Lines, Inc., Mo.App., 446 S.W.2d 494, 496. Doc
trine is that injury during trip which serves both busi
ness and personal purpose is within course of employ
ment if trip involves performance of service for employ
er which would have caused trip to be taken by someone 
even if it had not coincided with personal journey. 
Stoskin v. Board of Ed. of Montgomery County, 11 
Md.App. 355, 274 A.2d 397, 400. 
Duarchy Id(y)uwarkiy/. A form of government where 
two reign jointly. 
Duas uxores eodem tempore habere non licet 
Id(y)uw�s �ks6riyz iy6wd�m temp�riy h�biriy non 
lays�t/. It is not lawful to have two wives at the same 
time. 1 Bl.Comm. 436.

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499 
Dubitante Id(y)uwb::>trentiy/. Doubting. Term is affixed 
to the name of a judge, in the reports, to signify that he 
doubted the decision rendered. 
Dubitatur Id(y)uwb::>teyt::>r/. It is doubted. A word fre
quently used in the reports to indicate that a point is 
considered doubtful. 
Dubitavit Id(y)uwb::>teyv::>ti. Doubted. 
Ducat Id�k::>t/. A foreign coin, varying in value in 
different countries. 
Ducatus Id::>keyt::>s/. In feudal and old English law, a 
duchy, the dignity or territory of a duke. 
Duces tecum Id(y)uwsiyz tiyk::>m/. (Lat. Bring with 
you.) The name of certain species of writs, of which the 
subpoena duces tecum is the most usual, requiring a 
party who is summoned to appear in court to bring with 
him some document, piece of evidence, or other thing to 
be used or inspected by the court. See Subpoena duces 
tecum. 
Duces tecum licet languidus Id(y)uwsiyz tiyk::>m lays::>t 
lrelJgw::>d::>s/. (Bring with you, although sick.) In prac
tice, an ancient writ, now obsolete, directed to the sher
iff, upon a return that he could not bring his prisoner 
without danger of death, he being adeo languidus (so 
sick); whereupon the court granted a habeas corpus in 
the nature of a duces tecum licet languidus. 
Duchy Court of Lancaster. A tribunal of special juris
diction, held before the chancellor of the duchy, or his 
deputy, concerning all matters of equity relating to 
lands holden of the crown in right of the duchy of 
Lancaster; which is a thing very distinct from the 
county palatine (which has also its separate chancery, 
for sealing of writs, and the like), and comprises much 
territory which lies at a vast distance from it; as partic
ularly a very large district surrounded by the city of 
Westminster. The proceedings in this court are the 
same as were those on the equity side of the court of 
chancery, so that it seems not to be a court of record; 
and, indeed, it has been holden that the court of chan
cery has a concurrent jurisdiction with the duchy court, 
and may take cognizance of the same causes. Although 
not formally abolished, this court has not sat since 1835. 
Duchy of Lancaster I d�chiy ::>v lrelJk::>st::>r I. Those lands 
which formerly belonged to the dukes of Lancaster, and 
now belong to the crown in right of the duchy. The 
duchy is distinct from the county palatine of Lancaster, 
and includes not only the county, but also much territo
ry at a distance from it, especially the Savoy in London 
and some land near Westminster. 3 Bl.Comm. 78. 
Ducking-stool. See Castigatory. 
Ducroire Idyuwkrwohr/. In French law, guaranty; 
equivalent to del credere (which see). 
Due. Just; proper; regular; lawful; sufficient; reason
able, as in the phrases "due care," "due process of law," 
"due notice." 
Owing; payable; justly owed. That which one con
tracts to pay or perform to another; that which law or 
justice requires to be paid or done. 
DUE CONSIDERATION 
Owed, or owing, as distinguished from payable. A 
debt is often said to be due from a person where he is 
the party owing it, or primarily bound to pay, whether 
the time for payment has or has not arrived. The same 
thing is true of the phrase "due and owing." 
Payable. A bill or note is commonly said to be due 
when the time for payment of it has arrived. 
The word "due" always imports a fixed and settled 
obligation or liability, but with reference to the time for 
its payment there is considerable ambiguity in the use of 
the term, the precise signification being determined in 
each case from the context. It may mean that the debt 
or claim in question is now (presently or immediately) 
matured and enforceable, or that it matured at some 
time in the past and yet remains unsatisfied, or that it is 
fixed and certain but the day appointed for its payment 
has not yet arrived. But commonly, and in the absence 
of any qualifying expressions, the word "due" is restrict
ed to the first of these meanings, the second being 
expressed by the term "overdue," and the third by the 
word "payable." 
Due and proper care. That degree of care which is 
required of one for prevention of the accident. See Due 
care. 
Due and reasonable care. Care which reasonably pru
dent man would exercise under same or similar circum
stances. See Due care. 
Due bill. Written acknowledgment of a debt, or promise 
to pay. See IOU. 
Due care. Just, proper, and sufficient care, so far as the 
circumstances demand; the absence of negligence. That 
degree of care that a reasonable person can be expected 
to exercise to avoid harm reasonably foreseeable if such 
care is not taken. That care which an ordinarily pru
dent person would have exercised under the same or 
similar circumstances. Strickland v. Hughes, 2 N.C. 
App. 395, 163 S.E.2d 24, 26. "Due care" is care propor
tioned to any given situation, its surroundings, peculiari
ties, and hazards. It may and often does require ex
traordinary care. "Due care," "reasonable care," and 
"ordinary care" are often used as convertible terms. 
This term, as usually understood in cases where the 
gist of the action is the defendant's negligence, implies 
not only that a party has not been negligent or careless, 
but that he has been guilty of no violation of law in 
relation to the subject-matter or transaction which con
stitutes the cause of action. 
Due compensation. Term as used in eminent domain is 
the value of land taken and the damages, if any, which 
result to owner as a consequence of the taking without 
considering either general benefits or injuries. See Just 
compensation. 
Due consideration. To give such weight or significance 
to a particular factor as under the circumstances it 
seems to merit, and this involves discretion. United 
States ex reI. Maine Potato Growers & Shippers Ass'n v. 
Interstate Commerce Commission, 66 App.D.C. 398, 88

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DUE CONSIDERATION 
F.2d 780, 783. As regards sufficient consideration in 
contract law, see Consideration. 
Due course holder. See Holder in due course. 
Due course of law. This phrase is synonymous with 
"due process of law," or "the law of the land," and the 
general definition thereof is "law in its regular course of 
administration through courts of justice". See Due pro
cess of law. 
Due date. In general, the particular day on or before 
which something must be done to comply with law or 
contractual obligation. 
Due diligence. See Diligence. 
Due influence. Influence obtained by persuasion and 
argument or by appeals to the affections. In re Cham
berlain's Estate, CaLApp., 109 P.2d 449, 452. See also 
Coercion; Duress. 
Duel. A duel is any combat with deadly weapons fought 
between two or more persons, by previous agreement or 
upon a previous quarreL 
Dueling. The fighting of two persons, one against the 
other, at an appointed time and place, upon a precedent 
quarreL If death results, the crime is murder. It 
differs from an affray in this, that the latter occurs on a 
sudden quarrel, while the former is always the result of 
design. 
Duellum /d(y)uwel�m/. The trial by battel or judicial 
combat. See Battel. 
Due negotiation. Transferring a negotiable document 
of title under such conditions that the transferee takes 
the document and the goods free of certain claims en
forceable against the transferor. See U.C.C. §§ 7- 501(4) 
& 7-502(1). Due negotiation is the good faith purchase 
exception to the doctrine of derivative title as applied to 
documents. 
Due notice. Sufficient, legally prescribed notice. No
tice reasonably intended, and with the likelihood of, 
reaching the particular person or public. No fixed rule 
can be established as to what shall constitute "due 
notice." "Due" is a relative term, and must be applied 
to each case in the exercise of the discretion of the court 
in view of the particular circumstances. See Notice. 
Due-on-encumbrance clause. Mortgage language that 
gives the mortgagee the option to accelerate the mort
gage debt in the event the mortgagor further encumbers 
or mortgages the real estate without mortgagee's con
sent. 
Due-on-sale clause. A provision usually found in a note 
or mortgage whereby the entire debt becomes immedi
ately due and payable at mortgagee's option upon sale of 
mortgaged property. Such clauses are generally used to 
prevent subsequent purchasers from assuming existing 
loans at lower than current market rates. The validity 
of such provisions has been upheld by the Supreme 
Court. 
Due posting. Stamping and placing letter in United 
States maiL 
500 
Due process clause. Two such clauses are found in the 
U.S. Constitution, one in the 5th Amendment pertaining 
to the federal government, the other in the 14th Amend
ment which protects persons from state actions. There 
are two aspects: procedural, in which a person is guar
anteed fair procedures and substantive which protects a 
person's property from unfair governmental interfer
ence or taking. Similar clauses are in most state consti
tutions. See Due process of law. 
Due process of law. Law in its regular course of 
administration through courts of justice. Due process of 
law in each particular case means such an exercise of 
the powers of the government as the settled maxims of 
law permit and sanction, and under such safeguards for 
the protection of individual rights as those maxims 
prescribe for the class of cases to which the one in 
question belongs. A course of legal proceedings accord
ing to those rules and principles which have been estab
lished in our systems of jurisprudence for the enforce
ment and protection of private rights. To give such 
proceedings any validity, there must be a tribunal com
petent by its constitution-that is, by the law of its 
creation-to pass upon the subject-matter of the suit; 
and, if that involves merely a determination of the 
personal liability of the defendant, he must be brought 
within its jurisdiction by service of process within the 
state, or his voluntary appearance. Pennoyer v. Neff, 
95 U.S. 733, 24 L.Ed. 565. Due process of law implies 
the right of the person affected thereby to be present 
before the tribunal which pronounces judgment upon 
the question of life, liberty, or property, in its most 
comprehensive sense; to be heard, by testimony or oth
erwise, and to have the right of controverting, by proof, 
every material fact which bears on the question of right 
in the matter involved. If any question of fact or 
liability be conclusively presumed against him, this is 
not due process of law. 
An orderly proceeding wherein a person is served with 
notice, actual or constructive, and has an opportunity to 
be heard and to enforce and protect his rights before a 
court having power to hear and determine the case. 
Kazubowski v. Kazubowski, 45 IlL2d 405, 259 N.E.2d 
282, 290. Phrase means that no person shall be de
prived of life, liberty, property or of any right granted 
him by statute, unless matter involved first shall have 
been adjudicated against him upon trial conducted ac
cording to established rules regulating judicial proceed
ings, and it forbids condemnation without a hearing. 
Pettit v. Penn, La.App., 180 So.2d 66, 69. The concept of 
"due process of law" as it is embodied in Fifth Amend
ment demands that a law shall not be unreasonable, 
arbitrary, or capricious and that the means selected 
shall have a reasonable and substantial relation to the 
object being sought. U. S. v. Smith, D.C.lowa, 249 
F.Supp. 515, 516. Fundamental requisite of "due pro
cess" is the opportunity to be heard, to be aware that a 
matter is pending, to make an informed choice whether 
to acquiesce or contest, and to assert before the appro
priate decision-making body the reasons for such choice. 
Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 
F.Supp. 1044, 1084. Aside from all else, "due process"

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501 
means fundamental fairness and substantial justice. 
Vaughn v. State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 
883. 
Embodied in the due process concept are the basic 
rights of a defendant in criminal proceedings and the 
requisites for a fair trial. These rights and require
ments have been expanded by Supreme Court decisions 
and include, timely notice of a hearing or trial which 
informs the accused of the charges against him or her; 
the opportunity to confront accusers and to present 
evidence on one's own behalf before an impartial jury or 
judge; the presumption of innocence under which guilt 
must be proven by legally obtained evidence and the 
verdict must be supported by the evidence presented; 
the right of an accused to be warned of constitutional 
rights at the earliest stage of the criminal process; 
protection against self-incrimination; assistance of coun
sel at every critical stage of the criminal process; and 
the guarantee that an individual will not be tried more 
than once for the same offense (double jeopardy). 
See also Procedural due process; Substantive due pro
cess. 
Due process rights. All rights which are of such funda
mental importance as to require compliance with due 
process standards of fairness and justice. Procedural 
and substantive rights of citizens against government 
actions that threaten the denial of life, liberty, or prop
erty. See Due process of law. 
Due proof. Within insurance policy requirements, term 
means such a statement of facts, reasonably verified, as, 
if established in court, would prima facie require pay
ment of the claim, and does not mean some particular 
form of proof which the insurer arbitrarily demands. 
National Life Ins. Co. v. White, D.C.Mun.App., 38 A.2d 
663, 666. Sufficient evidence to support or produce a 
conclusion; adequate evidence. See Burden of proof; 
Proof. 
Due regard. Consideration in a degree appropriate to 
demands of the particular case. 
Dues. Certain payments; rates or taxes. As applied to 
clubs and other membership organizations, refers to 
sums paid toward support and maintenance of same and 
as a requisite to retain membership. 
Due to. Expressions "sustained by," "caused by," "due 
to," "resulting from," "sustained by means of," "sus
tained in consequence of," and "sustained through" have 
been held to be synonymous. 
D.U.I. The crime of driving under the influence of 
alcohol or drugs. See Driving while intoxicated. 
Duke. In English law, is a title of nobility, ranking 
immediately next to the Prince of Wales. It is only a 
title of dignity. Conferring it does not give any domain, 
territory, or jurisdiction over the place whence the title 
is taken. Duchess, the consort of a duke. 
Duke of Exeter's Daughter. The name of a rack in the 
Tower, so called after a minister of Henry VI, who 
sought to introduce it into England. 
DUMMY 
Duke of York's Laws. A body of laws compiled in 1665 
for the government of the colony of New York. 
Dulocracy Id(y)uwI6kr;}siy/. A government where ser
vants and slaves have so much license and privilege that 
they domineer. 
Duly. In due or proper form or manner; according to 
legal requirements. Regularly; properly; suitable; 
upon a proper foundation, as distinguished from mere 
form; according to law in both form and substance. See 
Due process of law. 
Duly ordained minister of religion. Person who has 
been ordained in accordance with the ceremonial, ritual, 
or discipline of a recognized church, religious sect, or 
religious organization, to teach and preach its doctrines 
and to administer its rites and ceremonies and public 
worship, and who customarily performs those duties. 
Duly qualified. Being "duly qualified" to fill an office, 
in the constitutional sense and in the ordinary accepta
tion of the words, means that the officer shall possess 
every qualification; that he shall in all respects comply 
with every requisite before entering on duties of the 
office; and that he shall be bound by oath or affirmation 
to support the Constitution, and to perform the duties of 
the office with fidelity. 
Dum I d:lm/. Lat. While; as long as; until; upon condi
tion that; provided that. 
Dumb-bidding. In sales at auction, when the minimum 
amount which the owner will take for the article is 
written on a piece of paper, and placed by the owner 
under an object, and it is agreed that no bidding shall 
avail unless equal to that, this is called "dumb-bidding." 
Dum bene se gesserit I d;)m biyniy siy jes;}r;}t/. While 
he shall conduct himself well; during good behavior. 
Expressive of a tenure of office not dependent upon the 
pleasure of the appointing power, nor for a limited 
period, but terminable only upon the death or miscon
duct of the incumbent. 
Dum fervet opus I d;)m f:lrv;}t 6wp;}s/. While the work 
glows; in the heat of action. 
Dum fuit infra retatem Id;)m fyuw;}t infd iyt«�yt;}m/. 
(While he was within age.) In old English practice, a 
writ of entry which formerly lay for an infant after he 
had attained his full age, to recover lands which he had 
aliened in fee, in tail, or for life, during his infancy; 
and, after his death, his heir had the same remedy. 
Dum fuit in prisona I d;)m fyuw;}t in priz;}n;}I . In old 
English law, a writ which lay for a man who had aliened 
lands under duress by imprisonment, to restore to him 
his proper estates. Abolished by St. 3 & 4 Wm. IV, c. 27. 
Dummodo I d;)m6wdow I. Provided; provided that. A 
word of limitation in the Latin forms of conveyances, of 
frequent use in introducing a reservation; as in reserv
ing a rent. 
Dummy, n. One who purchases property and holds legal 
title for another, usually to conceal the identity of the

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DUMMY 
true owner; a straw man. Space 61f3 feet in width 
between street railroad tracks. 
Dummy, adj. Sham; make-believe; pretended; imita
tion. Person who serves in place of another, or who 
serves until the proper person is named or available to 
take his place (e.g. dummy corporate directors; dummy 
owners of real estate). 
Dummy corporation. Corporation formed for sham 
purposes and not for conduct of legitimate business; e.g. 
formed for sole reason of avoiding personal liability. 
Dummy director. One to whom (usually) a single share 
of stock in a corporation is transferred for the purpose of 
qualifying him as a director of the corporation, in which 
he has no real or active interest. One who is a mere 
figurehead and in effect discharges no duties. 
Dummy stockholder. One who holds shares of stock in 
his name for the benefit of the true owner whose name 
is generally concealed. See also Street name. 
Dum non fuit compos mentis Id:}m non fyuw�t k6m
p�s mEmt�s/. In old English law, the name of a writ 
which the heirs of a person who was non compos menti s, 
and who aliened his lands, might have sued out to 
restore him to his rights. Abolished by 3 & 4 Wm. IV, c. 
27. 
Dump. To put or throw down with more or less of 
violence; to unload. To drop down; to deposit some
thing in a heap or unshaped mass. To sell abroad at 
less than price sold at home. See Dumping Act. 
Dumping. The act of selling in quantity at a very low 
price or practically regardless of the price; also, selling 
goods abroad at less than the market price at home. See 
Dumping Act. 
The act of forcing a product such as cotton on the 
market during the short gathering season. 
Dumping Act. Federal antidumping law which provides 
that the Secretary of Treasury is required to notify U.S. 
International Trade Commission (USITC) whenever he 
determines that foreign merchandise is being or is likely 
to be sold in U.S. or elsewhere at less than its fair value 
and the USITC shall determine the injury to U.S. indus
try. If such imports are determined to be injurious to 
domestic sales of like products, such imports may be 
ordered stopped. 19 U.S.C.A. § 1673. 
Dum recens fuit maleficium I d�m riysimz fyuw�t 
mrebfish(iy)�m/. While the offense was fresh. A term 
employed in the old law of appeal of rape. 
Dum 801a I d�m s6wl�/. While sole, or single. Dum sola 
fuerit, while she shall remain sole. Dum sola et casta 
vixerit, while she lives single and chaste. Words of 
limitation in old conveyances. Also applied generally to 
an unmarried woman in connection with something that 
was or might be done during that condition. 
Dun. A demand for payment (e.g. dun letter) to a delin
quent debtor. 
502 
Dungeon. Such an underground prison or cell as was 
formerly placed in the strongest part of a fortress. A 
dark or subterraneous prison. 
Dunio. A double; a kind of base coin less than a 
farthing. 
Dunnage. Pieces of wood placed against the sides and 
bottom of the hold of a vessel, to preserve the cargo from 
the effect of leakage, according to its nature and quality. 
There is considerable resemblance between dunnage and 
ballast. The latter is used for trimming the ship, and 
bringing it down to a draft of water proper and safe for 
sailing. Dunnage is placed under the cargo to keep it 
from being wetted by water getting into the hold, or 
between the different parcels to keep them from bruis
ing and injuring each other. Padding in shipping con
tainer to prevent breakage. 
Duodecemvirale judicium I d(y)uwowdes�mv�reyliy 
juwdish(iy)�m/. The trial by twelve men, or by jury. 
Applied to juries de medietate lingure. 
Duodecima manus Id(y)uwowdes�m� mam�s/. Twelve 
hands. The oaths of twelve men, including himself, by 
whom the defendant was allowed to make his law. 3 
Bl.Comm. 343. 
Duodena I d(y)uw�diyn�/. In old records, a jury of 
twelve men. 
Duodena manu Id(y)uw�diyn� mren(y)uw/. A dozen 
hands, i.e., twelve witnesses to purge a criminal of an 
offense. 
Duo non possunt in solido unam rem possidere 
Id(y)uwow non p6s�nt in s61�dow yuwn�m rem 
pos�diriy/. Two cannot possess one thing in entirety. 
Duopoly I d(y)uw6p�liy I. A condition in the market in 
which there are only two producers or sellers of a given 
product. 
Duorum in solidum dominium vel possessio esse non 
potest Id(y)uw6r�m in s61�d�m d�miniy�m vel 
p�zesh(iy)ow esiy non p6wt�st/. Ownership or posses
sion in entirety cannot be in two persons of the same 
thing. 
Duosony Id(y)uw6s�niy/. A condition of the market in 
which there are only two buyers of a given product. 
Duo sunt instrumenta ad omnes res aut confirman
das aut impugnandas, ratio et authoritas Idyuwow 
s�nt instr�ment� red 6mniyz riyz ot konf�rmrend�s ot 
imp�gnrend�s, reysh(iy)ow et 0(J6hr�tres/. There are two 
instruments for confirming or impugning all things,
reason and authority. 
Dupla Id(y)uwpl�/. In the civil law, double the price of a 
thing. 
Duplex house. A dwelling which has accommodations 
for two families, without regard to whether such accom
modations are identical or not. The units may be either 
adjacent to each other or on separate floors. 
Duplex querela Id(y)uwpleks kw�riyl�/. A double com
plaint. An ecclesiastical proceeding, which is in the 
nature of an appeal. See Double complaint.

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503 
Duplex valor maritagii Id(y)uwpleks v.i!};;,r mrer;;,ooyjiy
ay/. In old English law, double the value of the mar
riage. While an infant was in ward, the guardian had 
the power of tendering him or her a suitable match, 
without disparagement, which if the infants refused, 
they forfeited the value of the marriage to their guardi
an, that is, so much as a jury would assess or any one 
would give to the guardian for such an alliance; and, if 
the infants married themselves without the guardian's 
consent, they forfeited double the value of the marriage. 
2 Bl.Comm. 70. 
. 
Duplicate, v. To douple, repeat, copy, make, or add a 
thing exactly like a preceding one; reproduce exactly. 
Duplicate, n. A "duplicate" is a counterpart produced 
by the same impression as the original, or from the 
same matrix, or by means of photography, including 
enlargements and miniatures, or by mechanical or elec
tronic re-recording, or by chemical reproduction, or by 
other equivalent techniques which accurately reproduc
es the original. Fed.R.Evid. 10 0l. 
That which exactly resembles or corresponds to some
thing else; another, correspondent to the first; hence, a 
copy; transcript; counterpart; an original instrument 
repeated; a document the same as another in essential 
particulars. The term is also frequently used to signify 
a new original, made to take the place of an instrument 
that has been lost or destroyed, and to have the same 
force and effect. See also Copy. 
In England, the ticket given by a pawnbroker to the 
pawner of a chattel. 
Duplicate taxation. See Double taxation. 
Duplicate will. A term used where a testator executes 
two copies of his will, one to keep himself, and the other 
to be deposited with another person. Upon application 
for probate of a duplicate will, both copies must be 
deposited in the registry of the court of probate. The 
execution of duplicate wills is undesirable because if the 
testator desires to revoke his will, he must be careful to 
comply with the laws of revocation as to both wills. See 
also Recipr ocal wills. 
Duplicatio Id(y)uwpl;;,keysh(iy)ow/. In the civil law, the 
defendant's answer to the plaintiffs replication; corre
sponding to the rejoinder of the common law. 
Duplicationem possibilitatis lex non patitur 
I d(y)uwpl;;,keyshiyown;;,m pos;;,bil;;,teyt;;,s leks non 
tol;;,t;;,r I. The law does not allow the doubling of a 
possibility. 
Duplicatum jus Id(y)uwpl;;,keyt;;,m j;}s/. Double right. 
Duplicitous I d(y)uwplis;;,t;;,s/. A pleading which joins in 
one and the same count different grounds of action of 
different nature, or of the same nature, to enforce a 
single right to recovery, or which is based on different 
theories of the defendant's liability. Such duplicity was 
not permitted in common law pleading, but is allowed 
under Rule of Civil Procedure 8(e). In an information, 
the joinder of separate and distinct offenses in one and 
the same count. State v. Seward, 163 Kan. 136, 181 
DURANTE VITA 
P.2d 478, 480. See e.g. Fed.R.Crim.P. 8(a). See also 
Duplicity. 
Duplicitous appeal. Appeal from two separate judg
ments or from judgment and order or from two indepen
dent orders, both of which are appealable. City of 
Duncan v. Abrams, 171 Okl. 619, 43 P.2d 720, 723. 
Duplicity. The technical fault in common law pleading 
of uniting two or more causes of action in one count in a 
writ, or two or more grounds of defense in one plea, or 
two or more breaches in a replication, or two or more 
offenses in the same count of an indictment, or two or 
more incongruous subjects in one legislative act, or two 
or more controverted ultimate issues submitted in a 
single special issue. Such duplicity of pleading in civil 
actions is permitted under Rule of Civil Procedure 8(e). 
Rule of "duplicity" prohibits the simultaneous charg
ing of several distinct, unrelated crimes in one indict
ment. Mechling v. Stayton, D.C.Va., 361 F.Supp. 770, 
772. The joining in a single count of two or more 
distinct and separate offenses. State v. New Jersey 
Trade Waste Ass'n, 96 N.J. 8, 472 A.2d 1050, 1057. See 
e.g. Fed.R.Crim.P. 8(a). See also Multipl icity of actions or 
suits. 
Deliberate deception or double dealing. 
Dupuytren's contraction. A pathological condition in
volving the palmar fascia of the hands. 
Durable goods. See Goods. 
Durable leases. Leases reserving a rent payable annu
ally, with right of re-entry for nonpayment of the same, 
and for the term "as long as grass grows or water runs," 
or equivalent. terms. 
Durable power of attorney. See Power of attorney. 
Dura mater Id(y)ur;;, meyt;;,r/. The tough, membranous, 
outer covering of the brain and spinal cord. 
Durante Id(y);;,rrentiy/. Lat. During. A word of limita
tion in old conveyances. 
Durante absentia Id(y);;,rrentiy ;;,bsensh(iy);;,/. During 
absence. In some jurisdictions, administration of a dece
dent's estate is said to be granted durante absentia in 
cases where the absence of the proper proponents of the 
will, or of an executor, delays or imperils the settlement 
of the estate. 
Durante bene placito Id(y);;,rrentiy biyniy plres;;,tow/. 
During good pleasure. The ancient tenure of English 
judges was durante bene placito. 1 Bl.Comm. 267, 342. 
Durante minore retate I d(y);;,rrentiy m;;,noriy iyteytiy I. 
During minority. 2 Bl.Comm. 503. Words taken from 
the old form of letters of administration. 
Durante viduitate Id(y);;,rrentiy v;;,dyuw;;,teytiy/. During 
widowhood. 2 Bl.Comm. 124. Durante casta viduitate, 
during chaste widowhood. 
Durante virginitate I d(y );;,rrentiy v;;,rjin;;,teytiy I. During 
virginity (so long as she remains unmarried). 
Durante vita Id(y);;,rrentiy vayt;;,/. During life.

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DURATION 
Duration. Extent, limit or time. The portion of time 
during which anything exists. 
Interest. The period of time during which an interest in 
property lasts. 
Trust. The period of time during which a trust exists 
before its termination. 
Duress. Any unlawful threat or coercion used by a 
person to induce another to act (or to refrain from 
acting) in a manner he or she otherwise would not (or 
would). Subjecting person to improper pressure which 
overcomes his will and coerces him to comply with 
demand to which he would not yield if acting as free 
agent. Head v. Gadsden Civil Service Bd., Ala.Civ.App., 
389 So.2d 516, 519. Application of such pressure or 
constraint as compels man to go against his will, and 
takes away his free agency, destroying power of refusing 
to comply with unjust demands of another. Haumont v. 
Security State Bank, 220 Neb. 809, 374 N.W.2d 2, 6. 
A condition where one is induced by wrongful act or 
threat of another to make a contract or perform a 
tortious act under circumstances which deprive him of 
exercise of his free will. Hyde v. Lewis, 25 Ill.App.3d 
495, 323 N.E.2d 533, 537. Includes any conduct which 
overpowers will and coerces or constrains performance 
of an act which otherwise would not have been per
formed. Williams v. Rentz Banking Co., 11 2 Ga.App. 
384, 145 S.E.2d 256, 258. 
Duress may be a defense to a criminal act, breach of 
contract, or tort because an act to be criminal or one 
which constitutes a breach of contract or a tort must be 
voluntary to create liability or responsibility. 
A contract entered into under duress by physical 
compulsion is void. Also, if a party's manifestation of 
assent to a contract is induced by an improper threat by 
the other party that leaves the victim no reasonable 
alternative, the contract is voidable by the victim. Re
statement, Second, Contracts §§ 174, 175. 
As a defense to a civil action, it must be pleaded 
affirmatively. Fed.R.Civil P. 8(c). 
As an affirmative defense in criminal law, one who, 
under the pressure of an unlawful threat from another 
human being to harm him (or to harm a third person), 
commits what would otherwise be a crime may, under 
some circumstances, be justified in doing what he did 
and thus not be guilty of the crime in question. See 
Model Penal Code § 2.09. 
See also Coercion; Economic duress; Extortion; Un due 
influence. 
Duress of goods. Where the act consists of a tortious 
seizure or detention of property from the person entitled 
to it, and requires some act as a condition for its surren
der, the act is "duress of goods". Sistrom v. Anderson, 
51 Cal.App.2d 213, 124 P.2d 372, 376. 
Duress of imprisonment. The wrongful imprisonment 
of a person, or the illegal restraint of his liberty, in 
order to compel him to do some act. 1 Bl.Comm. 130, 
131, 136, 137. See also Duress. 
504 
Duressor /d(y)�res�r/. One who subjects another to 
duress; one who compels another to do a thing, as by 
menace. 
Duress per minas / d(y)�res p;}r mayn�s/. Duress by 
threats. The use of threats and menaces to compel a 
person, by the fear of death, or grievous bodily harm, as 
mayhem or loss of limb, to do some lawful act, or to 
commit a misdemeanor. 1 Bl.Comm. 130; 4 Bl.Comm. 
30. See Metus. 
Durham / d�hr�m/. A county palatine in England, the 
jurisdiction of which was vested in the Bishop of Dur
ham until the statute 6 & 7 Wm. IV, c. 19 vested it as a 
separate franchise and royalty in the crown. The juris
diction of the Durham Court of Pleas was transferred to 
the Supreme Court of Judicature by the Judicature Act 
of 1873. 
Durham rule. The irresistible impulse test of criminal 
responsibility. The rule states that when there is some 
evidence that the accused suffered from a diseased or 
defective mental condition at the time the unlawful act 
was committed the accused is not criminally responsible 
if it is found beyond a reasonable doubt that the act was 
the product of such mental abnormality. Durham v. 
United States, C.A.D.C., 214 F.2d 862, 875. This test of 
criminal responsibility (as first adopted in 1954 by the 
Court of Appeals of the District of Columbia in the cited 
case) was rejected by the same Court in 1972 when it 
adopted the ALI criterion of insanity of Model Penal 
Code § 4.01(1). U.S. v. Brawner, 471 F.2d 969. This 
same Model Penal Code test has also been adopted by a 
number of other courts. See Ins anity. 
During. Throughout the course of; throughout the con
tinuance of; in the time of; after the commencement 
and before the expiration of. Continental Bank & Trust 
Co. of N. Y. v. Chemical Bank & Trust Co., 51 N.Y.S.2d 
903, 909. 
During the hours of service. Within workers' compen
sation law, means working-hours plus reasonable peri
ods for ingress and egress. See also Course of employ
ment. 
During the trial. Period beginning with swearing of 
jury and ending with rendition of verdict. Period com
mencing with presentation of indictment by grand jury 
to court and terminating with final judgment. 
Dutch auction. See Auction. 
Dutch lottery. Also known as the "class lottery." As 
distinguished from the "Genoese lottery" (q.v.), it is a 
scheme in which the number and value of the prizes are 
regularly estimated, all the ticket holders are interested 
at once in the play, and chance determines whether a 
prize or a blank falls to a given number.

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505 
Duties. In its most usual signification this word is the 
synonym of imposts or customs; i.e. tax on imports; but 
it is sometimes used in a broader sense, as including all 
manner of taxes, charges, or governmental impositions. 
See also Customs; Most favored nation clause; Tariff; 
Toll; Tonnage-duty. 
Duties of detraction. Taxes levied upon the removal 
from one state to another of property acquired by succes
sion or testamentary disposition. Fredrickson v. Louisi
ana, 23 How. 445, 16 L.Ed. 577; In re Strobel's Estate, 5 
App.Div. 621, 39 N.Y.S. 169. Cf. Droit de detraction. 
Duties on imports Id(y)uwtiyz on imports/. This term 
signifies not merely a duty on the act of importation, but 
a duty on the thing imported. It is not confined to a 
duty levied while the article is entering the country, but 
extends to a duty levied after it has entered the country. 
See Customs Duties. 
Duty. A human action which is exactly conformable to 
the laws which require us to obey them. Legal or moral 
obligation. An obligation that one has by law or con
tract. Obligation to conform to legal standard of reason
able conduct in light of apparent risk. Karrar v. Barry 
County Road Com'n, 127 Mich.App. 821, 339 N.W.2d 
653, 657. Obligatory conduct or service. Mandatory 
obligation to perform. Huey v. King, 220 Tenn. 189, 415 
S.W.2d 136. An obligation, recognized by the law, re
quiring actor to conform to certain standard of conduct 
for protection of others against unreasonable risks. 
Samson v. Saginaw Professional Bldg., Inc., 44 Mich. 
App. 658, 205 N.W.2d 833, 835. See also Legal duty; 
Obligation. 
A thing due; that which is due from a person; that 
which a person owes to another. An obligation to do a 
thing. A word of more extensive signification than 
"debt," although both are expressed by the same Latin 
word "debitum. " Sometimes, however, the term is used 
synonymously with debt. 
Those obligations of performance, care, or observance 
which rest upon a person in an official or fiduciary 
capacity; as the duty of an executor, trustee, manager, 
etc. 
In negligence cases term may be defined as an obli
gation, to which law will give recognition and effect, to 
comport to a particular standard of conduct toward 
another, and the duty is invariably the same, one must 
conform to legal standard of reasonable conduct in light 
of apparent risk. Merluzzi v. Larson, 96 Nev. 409, 610 
P.2d 739, 741. The word "duty" is used throughout the 
Restatement of Torts to denote the fact that the actor is 
required to conduct himself in a particular manner at 
the risk that if he does not do so he becomes subject to 
liability to another to whom the duty is owed for any 
injury sustained by such other, of which that actor's 
conduct is a legal cause. Restatement, Second, Torts 
§ 4. See Care; Due care. 
In its use in jurisprudence, this word is the correlative 
of righ t. Thus, wherever there exists a right in any 
person, there also rests a corresponding duty upon some 
other person or upon all persons generally. 
DWELLING 
It also denotes a tax or impost due to the government 
upon the importation or exportation of goods. See 19 
V.S.C.A. See also Customs; Customs duties; Tariff; Toll; 
Tonnage-dUty. 
Judicial duty. See Judicial. 
Duty free. Products or merchandise of foreign origm 
that are not subject to import or export taxes. See 
Customs duties. 
Duty of tonnage. A charge upon a vessel as an instru
ment of commerce for entering, lying in or leaving a 
port, and includes all taxes and duties, regardless of 
name or form. Marine Lighterage Corporation v. Luck
enbach S. S. Co., 139 Misc. 612, 248 N.Y.S. 71, 72. 
Duty of water. Such a quantity of water necessary 
when economically conducted and applied to land with
out unnecessary loss as will result in the successful 
growing of crops. 
Duty to act. Obligation to take some action to prevent 
harm to another and for failure of which there may or 
may not be liability in tort depending upon the circum
stances and the relationship of the parties to each other. 
See Emergency doctrine; Humani tarian doctrine. 
Duumviri Id(y)uwamv;}ray/. (From duo, two, and viri, 
men.) A general appellation among the ancient Ro
mans, given to any magistrates elected in pairs to fill 
any office, or perform any function. 
Duumviri munici pales were two annual magistrates in 
the towns and colonies, having judicial powers. 
Duumviri navales were officers appointed to man, 
equip, and refit the navy. 
Dux I daksl . A military governor of a province. A 
military officer having charge of the borders or frontiers 
of the empire, called "dux limitis. " At this period, the 
word began to be used as a title of honor or dignity. 
In Roman law, a leader or military commander. The 
commander of an army. 
In feudal and old European law, duke; a title of 
honor, or order of nobility. 1 Bl.Comm. 397. 
Dwell. To have an abode; to reside; to inhabit; to live 
in a place. More than mere physical presence is some
times required. It must be in conformity with law. 
Kaplan v. Tod, 267 V.S. 228, 45 S.Ct. 257, 69 L.Ed. 585. 
To abide as a permanent residence or for a time. Term 
is synonymous with inhabit, live, sojourn, reside, stay, 
rest. See also Domicile; Residence. 
Dwelling. The house or other structure in which a 
person or persons live; a residence; abode; habitation; 
the apartment or building, or group of buildings, occu
pied by a family as a place of residence. Structure used 
as place of habitation. 
In conveyancing, includes all buildings attached to or 
connected with the house. In criminal law (e.g. burgla
ry), means a building or portion thereof, a tent, a mobile 
home, a vehicle or other enclosed space which is used or 
intended for use as a human habitation, home or resi
dence.

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DWELLING 
Under statute prohibiting breaking and entering a 
"dwelling house" the test for determining if a building is 
such a house is whether it is used regularly as a place to 
sleep. Wallace v. State, 63 Md.App. 399, 492 A.2d 970, 
973. 
Dwelling defense. In most jurisdictions, a person in his 
dwelling is permitted to use even deadly force to protect 
himself, his household and the house itself from attack 
on the principle that a person's house is his castle. 
State v. Couch, 52 N.M. 127, 193 P.2d 405. Model Penal 
Code §§ 3.11, 3.06(3)(d). 
D.W.I. In genealogical tables, a common abbreviation 
for "died without issue." Also, abbreviation for offense 
of "driving while intoxicated" (q.v.). 
Dyer Act. National Motor Vehicle Theft Act (1919) 
which makes it a criminal offense to transport a stolen 
motor vehicle in interstate or foreign commerce know
ing it to be stolen or to receive or conceal such a motor 
vehicle in interstate or foreign commerce knowing it to 
be stolen, though knowledge of its interstate transporta
tion is not essential to guilt. Odom v. U. S., C.A.Fla., 
377 F.2d 853. 18 U.S.C.A. §§ 2311-2313. 
Dying declaration. See Declaration. 
Dying without issue. Dying without a child either 
before or after the decedent's death. At common law 
this phrase imports an indefinite failure of issue, and 
not a dying without issue surviving at the time of the 
death of the first taker. But this rule has been changed 
in many decisions, with many states having held that 
the expression "dying without issue," and like expres
sions, have reference to the time of the death of the 
party, and not to an indefinite failure of issue. See also 
Failure of issue. 
506 
Dying without children imports not a failure of issue 
at any indefinite future period, but a leaving no children 
at the death of the legatee. The law favors vesting of 
estates, and limitation such as "dying without issue," 
refers to a definite period, fixed in will, rather than to 
an indefinite failure of issue. Where context is such as 
to show clearly that testator intended the phrase "die 
without issue" to mean that, if first taker die without 
issue during life of testator, the second taker shall stand 
in his place and prevent a lapse, the words "die without 
issue" are taken to mean death during life of testator. 
Martin v. Raff, 114 Ind.App. 507, 52 N.E.2d 839, 845. 
Dynamite instruction. Further instruction given by 
the trial judge to jury when the jury have reported an 
inability to agree on a verdict in a criminal case. In the 
further instructions, the judge advises them of their 
obligation to consider the opinions of their fellow jurors 
and to yield their own views where possible. Allen v. 
United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. 
This type of jury instruction (also called "Allen charge") 
is prohibited in certain states; e.g. California, People v. 
Gainer, 19 Ca1.3d 835, 566 P.2d 997, 139 Cal.Rptr. 86l. 
See also Allen charge. 
Dynasty / dayn�stiy / din�stiy /. A succession of rules in 
the same line or family. Powerful and influential group 
or family which continues in existence for a considerable 
time. 
Dysnomy / disn�my /. Bad legislation; the enactment of 
bad laws. 
Dyspareunia / disp�riiwniy�/. Incapacity of a woman to 
sustain the act of sexual intercourse except with great 
difficulty and pain; anaphrodisia.

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E 
E. As an abbreviation, this letter may stand for ItEx_ 
chequer," "English," "Edward," "Equity," "East," "East
ern," "Easter," or "EcclesiasticaL" A Latin preposition, 
meaning from, out of, after, or according. It occurs in 
many Latin phrases; but (in this form) only before a 
consonant. 
Ea. Sax. The water or river; also the mouth of a river 
on the shore between high and low water-mark. 
Each. A distributive adjective pronoun, which denotes 
or refers to everyone of the persons or things men
tioned; everyone of two or more persons or things, 
composing the whole, separately considered. The effect 
of this word, used in the covenants of a bond, is to create 
a several obligation. The word "any" is equivalent to 
"each." Conerty v. Richtsteig, 308 IlLApp. 321, 31 
N.E.2d 351. "Each" is synonymous with "all" and 
agrees in inclusiveness but differs in stress; "all" col
lects and "each" distributes. Knox Jewelry Co., Inc. v. 
Cincinnati Ins. Co., 130 Ga.App. 519, 203 S.E.2d 739, 
740. 
Eadem causa diversis rationibus coram judicibus ec
clesiasticis et secularibus ventilatur liyeyd�m k6z� 
d�v;)rs�s rreshiy6wn�b�s k6r�m juwdis�b�s �kliyziy
rest�s�s et seky�ler�b�s vent�leyt�r/. The same cause is 
argued upon different principles before ecclesiastical 
and secular judges. 
Eadem est ratio, eadem est lex liyeyd�m est 
reysh(iy)ow, iyeyd�m est leks/. The same reason, the 
same law. 
Eadem mens prresumitur regis qure est juris et qure 
esse debet, prresertim in dubiis liyeyd�m menz 
pr�z(y)uwm�t�r riyj�s kwiy est jur�s et kwiy esiy deb�t, 
pr�z;)rt�m in d(y)uwbiy�s/. The mind of the sovereign is 
presumed to be coincident with that of the law, and with 
that which it ought to be, especially in ambiguous mat
ters. 
Ea est accipienda interpretatio, qure vitio caret liy� 
est �ksipiyend� int�rpr�teysh(iy)ow kwiy vish(iy)ow 
krer�t/. That interpretation is to be received [or 
adopted] which is free from fault [or wrong]. The law 
will not intend a wrong. 
Eagle. A gold coin of the United States of the value of 
ten dollars. 
Ea intentione liy� intenshiy6wniy/. With that intent. 
Held not to make a condition, but a confidence and 
trust. 
Ealder leld�r/, or ealding leldig/. In old Saxon law, an 
eldir or chief. 
Ealderman I eld�rm�n/, or ealdorman I 6ld�rm�n/. The 
name of a Saxon magistrate; alderman; analogous to 
earl among the Danes, and senator among the Romans. 
See Alderman. 
Ealdor-biscop I eld�rbish�p/. An archbishop. 
Ealdorburg I eld�rb�rg/. Sax. The metropolis; the 
chief city. Obsolete. 
Ealhorda I eylhord�/. Sax. The privilege of assising 
and selling beer. Obsolete. 
Ea qure, commendandi causa, ill venditionibus dicun� 
tur, si palam appareant, venditorem non obligant 
liy� kwiy, kom�ndrenday koz�, in vendishiyown�b�s 
d�k;)nt�r, say prel�m �preriy�nt, vend�tor�m non 
obl�g�nt/. Those things which are said on sales, in the 
way of commendation, if [the qualities of the thing sold] 
appear openly, do not bind the seller. 
Ea qure dari impossibilia sunt, vel qure in rerum 
natura non sunt, pro non adjectis habentur liy� 
kwiy deray impos�biliy� s�nt, vel kwiy in rir�m n�tyur� 
non s;)nt prow non �jekt�s h�bent�r/. Those things 
which are impossible to be given, or which are not in the 
nature of things, are regarded as not added [as no part 
of an agreement]. 
Ea qure in curia nostra rite acta sunt debitre execu
tioni demandari debent liy� kwiy in kyuriy� n6str� 
raytiy rekt� s�nt deb�tiy eks�kyuwshiyownay 
d�mrenderay deb�ntl. Those things which are properly 
transacted in our court ought to be committed to a due 
execution. 
Ea qure raro accidunt non temere in agendis negotiis 
computantur liy� kwiy rerow reks�d�nt non t�miriy in 
�jend�s n�gowshiy�s kompy�trent�r/. Those things 
which rarely happen are not to be taken into account in 
the transaction of business without sufficient reason. 
Earl. A title of nobility, formerly the highest in Eng
land, now the third, ranking between a marquis and a 
viscount, and corresponding with the French "comte" 
and the German "Graf" The title originated with the 
Saxons, and is the most ancient of the English peerage. 
William the Conqueror first made this title hereditary, 
giving it in fee to his nobles; and allotting them for the 
support of their state the third penny out of the sheriffs 
court, issuing out of all pleas of the shire, whence they 
had their ancient title "shiremen." At present the title 
is accompanied by no territory, private or judicial rights, 
507

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EARL 
but merely confers nobility and an hereditary seat in 
the house of lords. 
Earldom. The dignity or jurisdiction of an earl. The 
dignity only remains now, as the jurisdiction has been 
given over to the sheriff. 1 Bl.Comm. 339. 
Earles-penny, or earl's penny. Money given in part 
payment. See Earnest. 
Earlier maturity rule. The rule under which bonds 
first maturing are entitled to priority when sale of 
security is not sufficient to satisfy all obligations. 
Scherk v. Newton, C.C.A.Colo., 152 F.2d 747, 749. 
Earl Marshal of England. A great officer of state who 
had anciently several courts under his jurisdiction, as 
the court of chivalry and the court of honor. Under him 
is the herald's office, or college of arms. He was also a 
judge of the Marshalsea court, now abolished. This 
office is of great antiquity, and has been for several ages 
hereditary in the family of the Howards. 3 Bl.Comm. 
68, 103. 
Ear-mark. A mark put upon a thing to distinguish it 
from another. Originally and literally, a mark upon the 
ear; a mode of marking sheep and other animals. 
Property is said to be ear-marked when it can be 
identified or distinguished from other property of the 
same nature. 
To set apart from others. 
Money has no ear-mark, but it is an ordinary term for 
a privy mark made by any one on a coin. 
Ear-mark rule. Rule that through the process of com
mingling money or deposit with the funds of a bank it 
loses its identity, with the resultant effect of defeating 
the right of preference over general creditors. 
Earn. To acquire by labor, service or perf ormance. 
Hartford Electric Light Co. v. McLaughlin, 131 Conn. 1, 
37 A.2d 361, 363. Earned means to merit or deserve, as 
for labor or service. To do that which entitles one to a 
reward, whether the reward is received or not; to ac
quire by labor, service or performance. Cold Metal 
Process v. C.I.R., C.A., 247 F.2d 864, 872. 
Earned income. Income from services (e.g. , salaries, 
wages, or fees); distinguished from passive, portfolio, 
and other unearned income. See I.R.C. § 911. In taxa
tion, term generally is meant to include all income not 
representing return on capital. U.S. v. Van Dyke, C.A. 
Fed., 696 F.2d 957, 962. See also Earnings; Income. 
Earned income credit. A refundable tax credit on 
earned income up to a certain amount for low income 
workers who maintain a household for dependent chil
dren. The amount of the credit is reduced dollar for 
dollar if earned income (or adjusted gross income) is 
greater than a specified amount. 
Earned premium. In insurance, that portion of the 
premium properly allocable to policy period which has 
expired. An "earned premium" is difference between 
premium paid by insured and portion returnable to him 
by insurance company on cancellation of policy during 
508 
its term. Price v. Guaranty Nat. 1m;, Co., Okl., 456 P.2d 
108, 111. 
Earned surplus. Retained earnings. That species of 
surplus which has been generated from profits as con
trasted with paid-in surplus. Term relates to net accu
mulation of profits; it is a part of surplus that repre
sents net earnings, gains or profits, after deduction of all 
losses, but has not been distributed a� gividends, or 
transferred to stated capital or capital surplus, or ap
plied to other purposes permitted by law. Conine v. 
Leikam, Okl., 570 P.2d 1156, 1160. 
Earner. One whose personal efforts produce income (e.g. 
wage earner) or who owns property which produces it, or 
combination of both. Wells v. Commissioner of Internal 
Revenue, C.C.A.Minn., 63 F.2d 425, 430. 
Earnest. The payment of a part of the price of goods 
sold, or the delivery of part of such goods, for the 
purpose of binding the contract. A token or pledge 
passing between the parties, by way of evidence, or 
ratification of the sale. See Earnest money. 
Earnest money. A sum of money paid by a buyer at the 
time of entering a contract to indicate the intention and 
ability of the buyer to carry out the contract. Normally 
such earnest money is applied against the purchase 
price. Often the contract provides for forfeiture of this 
sum if the buyer defaults. A deposit of part payment of 
purchase price on sale to be consummated in future. 
Bishop Ryan High School v. Lindberg, N.D., 370 N.W.2d 
726, 728. Import of term in real estate contract is that 
when comparatively small sum is paid down, it is an 
assurance that party is in earnest and good faith and 
that if his being in earnest and good faith fails, it will be 
forfeited. Mortenson v. Financial Growth, Inc., 23 Utah 
2d 54, 456 P.2d 181, 184. See also Binder; Down pay
ment. 
Earning capacity. Term refers to capability of worker 
to sell his labor or services in any market reasonably 
accessible to him, taking into consideration his general 
physical functional impairment resulting from his acci
dent, any previous disability, his occupation, age at time 
of injury, nature of injury and his wages prior to and 
after the injury. Sims v. Industrial Commission, 10 
Ariz.App. 574, 460 P.2d 1003, 1006. Term does not 
necessarily mean the actual earnings that one who 
suffers an injury was making at the time the injuries 
were sustained, but refers to that which, by virtue of the 
training, the experience, and the business acumen pos
sessed, an individual is capable of earning. 
"Earning capacity" of husband or wife for purpose of 
determining amount of support which he or she may be 
required to pay spouse is not that amount which an 
individual could theoretically earn but is amount which 
individual could realistically earn under circumstances, 
including health, age, mental and physical condition and 
training. Com. ex reI. Malizia v. Malizia, 229 Pa.Super. 
108, 324 A.2d 386, 388. 
Fitness, readiness and willingness to work, considered 
in connection with opportunity to work. 
Earning power. See Earning capacity.

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509 
Earnings. Income. That which is earned; i.e., money 
earned from performance of labor, services, sale of 
goods, etc. Revenue earned by an individual or busi
ness. Earnings generally include but are not limited to: 
salaries and wages, interest and dividends, and income 
from self-employment. Term is broader in meaning 
than "wages." See also Commissions; Compensation; 
Dividend; Gross earnings; Income; Premium; Real earn
ings; Retained earnings; Salary; Wages. 
Gross earnings. Total income from all sources without 
considering deductions, personal exemptions, or other 
reductions of income in order to arrive at taxable in
come. See also Gross income. 
Net earnings. Net earnings (income) is the excess of 
gross income over expenses incurred in connection with 
the production of such income. For tax purposes, net 
earnings is the number used to determine taxable in
come. For accounting purposes, net earnings is general
ly determined after deduction of income taxes. See also 
Net income. 
Surplus earnings. See Surplus. 
Earnings and profits. A tax concept peculiar to corpo
rate taxpayers which measures economic capacity to 
make a distribution to shareholders that is not a return 
of capital. Such a distribution will result in dividend 
income to the shareholders to the extent of the corpora
tion's current and accumulated earnings and profits. 
See also Accumula ted earnings tax; Accumulated taxable 
income. 
Earnings per share. One common measure of the value 
of common stock. The figure is computed by dividing 
the net earnings for the year (after interest and prior 
dividends) by the number of shares of common stock 
outstanding. 
Earnings report. Businesses' statement of profit and 
loss; commonly issued quarterly by publically-held com
panies. 
Earth. Soil of all kinds, including gravel, clay, loam, and 
the like, in distinction from the firm rock. 
Ear-witness. In the law of evidence, one who attests or 
can attest anything as heard by himself. See also Voice
print. 
Ease. Comfort, consolation, contentment, enjoyment, 
happiness, pleasure, satisfaction. 
Easement. A right of use over the property of another. 
Traditionally the permitted kinds of uses were limited, 
the most important being rights of way and rights 
concerning flowing waters. The easement was normally 
for the benefit of adjoining lands, no matter who the 
owner was (an easement appurtenant), rather than for 
the benefit of a specific individual (easement in gross). 
The land having the right of use as an appurtenance is 
known as the dominant tenement and the land which is 
subject to the easement is known as the servient tene
ment. 
A right in the owner of one parcel of land, by reason 
of such ownership, to use the land of another for a 
EASEMENT 
special purpose not inconsistent with a general property 
in the owner. 
An interest which one person has in the land of 
another. A primary characteristic of an easement is 
that its burden falls upon the possessor of the land from 
which it issued and that characteristic is expressed in 
the statement that the land constitutes a servient tene
ment and the easement a dominant tenement. Potter v. 
Northern Natural Gas Co., 201 Kan. 528, 441 P.2d 802, 
805. An interest in land in and over which it is to be 
enjoyed, and is distinguishable from a "license" which 
merely confers personal privilege to do some act on the 
land. Logan v. McGee, Miss., 320 So.2d 792, 793. 
See also Affirmative easement; Non-continuous ease
ment; Prescriptive easement. 
Access easement. See Access. 
Af firmative easement. One where the servient estate 
must permit something to be done thereon, as to pass 
over it, or to discharge water on it. 
Apparent easement. One the existence of which appears 
from the construction or condition of one of the tene
ments, so as to be capable of being seen or known on 
inspection. 
Appendent easement. See Appurtenant easement, below. 
Appurtenant easement. An incorporeal right which is 
attached to a superior right and inheres in land to 
which it is attached and is in the nature of a covenant 
running with the land. Fort Dodge, D. M. & S. Ry. v. 
American Community Stores Corp., 256 Iowa 1344, 131 
N.W.2d 515, 521. There must be a dominant estate and 
servient estate. An easement interest which attaches to 
the land and passes with it. First Nat. Bank of Amaril
lo v. Amarillo Nat. Bank, Tex.Civ.App., 531 S.W.2d 905, 
907. An "incorporeal right" which is attached to and 
belongs with some greater and superior right or some
thing annexed to another thing more worthy and which 
passes as incident to it and is incapable of existence 
separate and apart from the particular land to which it 
is annexed. 
Discontinuing easement. Discontinuous, non-continu
ous, or non-apparent easements are those the enjoyment 
of which can be had only by the interference of man, as, 
a right of way or a right to draw water. 
Easement by estoppel. Easement which is created when 
landlord voluntarily imposes apparent servitude on his 
property and another person, acting reasonably, believes 
that servitude is permanent and in reliance upon that 
belief does something that he would not have done 
otherwise or refrains from doing something that he 
would have done otherwise. U. S. v. Thompson, D.C. 
Ark., 272 F.Supp. 774, 784. 
Easement by implication. Easement created by law and 
grounded in court's decision in reference to particular 
transaction in land where owner of two parcels had so 
used one parcel to the benefit of other parcel that on 
selling the benefited parcel purchaser could reasonably 
have expected, without further inquiries, that these ben-

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EASEMENT 
efits were included in sale. Boyd v. McDonald, 81 Nev. 
642, 408 P.2d 717, 721. 
Easement by prescription. A mode of acquiring an ease
ment in property by immemorial or long-continued en
joyment, and refers to personal usage restricted to 
claimant and his ancestors or grantors. The uninter
rupted use of the land must generally be for the same 
statutory period of time as for adverse possession. 
Easement in gross. An easement in gross is not appurte
nant to any estate in land or does not belong to any 
person by virtue of ownership of estate in other land but 
is mere personal interest in or right to use land of 
another; it is purely personal and usually ends with 
death of grantee. Shingleton v. State, 260 N.C. 451, 133 
S.E.2d 183, 185. 
Easement of access. Right of ingress and egress to and 
from the premises of a lot owner to a street appurtenant 
to the land of the lot owner. 
Easement of convenience. One which increases the facil
ity, comfort, or convenience of the enjoyment of the 
dominant estate, or of 80me right connected with it. 
Easement of natural support. Easement which creates 
right of lateral support to land in its natural condition 
entitling the holder thereof to have his land held in 
place from the sides by neighboring land. 
Easement of necessity. One in which the easement is 
indispensable to the enjoyment of the dominant estate. 
Such arises by operation of law when land conveyed is 
completely shut off from access to any road by land 
retained by grantor or by land of grantor and that of a 
stranger. Tarr v. Watkins, 180 Cal.App.2d 362, 4 Cal. 
Rptr. 293, 296. 
Equitable easements. The special easements created by 
derivation of ownership of adjacent proprietors from a 
common source, with specific intentions as to buildings 
for certain purposes, or with implied privileges in regard 
to certain uses, are sometimes so called. .A name fre
quently applied to building restrictions in a deed. 
Exclusive easement. Grant of "exclusive easement" con
veys unfettered rights to owner of easement to use that 
easement for purposes specified in grant to exclusion of 
all others. Latham v. Garner, 105 Idaho 854, 673 P.2d 
1048, 1050. 
Flowage easement. Common law right of lower land to 
allow water from higher land to flow across it. 
Implied easement. One which the law imposes by infer
ring the parties to a transaction intended that result, 
although they did not express it. Schwob v. Green, 
Iowa, 215 N.W.2d 240, 242. An easement resting upon 
the principle that, where the owner of two or more 
adjacent lots sells a part thereof, he grants by implica
tion to the grantee all those apparent and visible ease
ments which are necessary for the reasonable use of the 
property granted, which at the time of the grant are 
used by the owner of the entirety for the benefit of the 
part granted. One not expressed by parties in writing 
but arises out of existence of certain facts implied from 
510 
the transaction. Wagner v. Fairlamb, 151 Colo. 481, 379 
P.2d 165, 167. 
Intermittent easement. One which is usable or used only 
at times, and not continuously. 
Light and air easement. An easement obtained from an 
adjoining land owner to protect against the obstruction 
of light and air which would result if a building or 
structure was constructed on the grantor's property. 
Negative easement. Those where the owner of the ser
vient estate is prohibited from doing something other
wise lawful upon his estate, because it will affect the 
dominant estate (as interrupting the light and air from 
the latter by building on the former). As to Reciprocal 
negative easement, see that title below. 
Private or public easements. A private easement is one 
in which the enjoyment is restricted to one or a few 
individuals, while a public easement is one the right to 
the enjoyment of which is vested in the public generally 
or in an entire community; such as an easement of 
passage on the public streets and highways or of naviga
tion on a stream. 
Quasi easement. An "easement," in the proper sense of 
the word, can only exist in respect of two adjoining 
pieces of land occupied by different persons, and can 
only impose a negative duty on the owner of the servient 
tenement. Hence an obligation on the owner of land to 
repair the fence between his and his neighbor's land is 
not a true easement, but is sometimes called a "quasi 
easement." 
Reciprocal negative easement. If the owner of two or 
more lots, so situated as to bear the relation, sells one 
with restrictions of benefit to the land retained, the 
servitude becomes mutual, and, during the period of 
restraint, the owner of the lot or lots retained can do 
nothing forbidden to the owner of the lot sold; this 
being known as the doctrine of "reciprocal negative 
easement." 
Reserved easement. An easement created by the grantor 
of property, benefitting the retained property and bur
dening the granted property. 
Secondary easement. One which is appurtenant to the 
primary or actual easement. Every easement includes 
such "secondary easements," that is, the right to do such 
things as are necessary for the full enjoyment of the 
easement itself. 
East. In the absence of other words qualifying its mean
ing, the word "east" describing boundaries means due 
east. Livingston Oil & Gas Co. v. Shasta Oil Co., Tex. 
Civ.App., 114 S.W.2d 378, 38 1. The general direction of 
sunrise. Point directly opposite to west. See also East
erly. 
Easter. A feast of the Christian church held in memory 
of the Saviour's resurrection. The Greeks and Latins 
call it "pascha" (passover), to which Jewish feast our 
Easter answers. This feast has been annually celebrat
ed since the time of the apostles, and is one of the most 
important festivals in the Christian calendar, being that

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511 
which regulates and determines the times of all the 
other movable feasts. 
Easterling. A coin struck by Richard II which is sup
posed by some to have given rise to the name of "ster
ling," as applied to English money. 
Easterly. This word, when used alone, will be construed 
to mean "due east." But that is a rule of necessity 
growing out of the indefiniteness of the term, and has no 
application where other words are used for the purpose 
of qualifying its meaning. Where such is the case, it 
means precisely what the qualifying word makes it 
mean. See also East. 
Easter-offerings, or Easter-dues. In English law, small 
sums of money paid to the parochial clergy by, the 
parishioners at Easter as a compensation for personal 
tithes, or the tithe for personal labor; recoverable under 
7 & 8 Wm. III, c. 6, before justices of the peace. 
Easter term. In English law, formerly one of the four 
movable terms of the courts, but afterwards a fixed 
term, beginning on the 15th of April and ending on the 
8th of May in every year, though sometimes prolonged 
so late as the 13th of May, under St. 11 Geo. IV, and 1 
Wm. IV, c. 70. From November 2, 1875, the division of 
the legal year into terms was abolished so far as con
cerns the administration of justice, and replaced by 
sittings. See also Hilary, Michaelmas and Trin ity terms; 
Session. 
East Greenwich. The name of a royal manor in the 
county of Kent, England; mentioned in royal grants or 
patents, as descriptive of the tenure of free socage. 
East India Company. Originally established for prose
cuting the trade between England and India, which they 
acquired a right to carry on exclusively. The company's 
political affairs became of more importance than their 
commerce. In 1858, by 21 & 22 Vict., c. 106, the 
government of the territories of the company was trans
ferred to the crown. The company was finally dissolved 
in 1874. 
Eastinus. An easterly coast or country. 
EAT. Abbreviation for earnings after taxes. 
Eat inde sine die /iy�t indiy sayniy day(iy)/. Words 
used on the acquittal of a defendant, or when a prisoner 
is to be discharged, that he may go thence without a day, 
i.e., be dismissed without any further continuance or 
adjournment. 
Eaves-drip. The drip or dropping of water from the 
eaves of a house on the land of an adjacent owner; the 
easement of having the water so drip, or the servitude of 
submitting to such drip; the same as the stillicidium of 
the Roman law. See Drip rights; Stilli cidium. 
Eavesdropping. Eavesdropping is knowingly and with
out lawful authority: (a) Entering into a private place 
with intent to listen surreptitiously to private conversa
tions or to observe the personal conduct of any other 
person or persons therein; or (b) Installing or using 
outside a private place any device for hearing, recording, 
amplifying, or broadcasting sounds originating in such 
place, which sounds would not ordinarily be audible or 
ECCLESIA 
comprehensible outside, without the consent of the per
son or persons entitled to privacy therein; or (c) Install
ing or using any device or equipment for the intercep
tion of any telephone, telegraph or other wire communi
cation without the consent of the person in possession or 
control of the facilities for such wire communication. 
Such activities are regulated by state and federal stat
utes, and commonly require a court order. 
At common law, the offense of listening under walls or 
windows, or the eaves of a house, and thereupon to 
frame slanderous and mischievous tales. 4 Bl.Comm. 
168. It was a misdemeanor at common law. 
See also Invasion of property; Pen register; Wiretapping. 
Ebba. In old English law, ebb. Ebba et fluctus; ebb and 
flow of tide; ebb and flood. The time occupied by one 
ebb and flood was anciently granted to persons essoined 
as being beyond sea, in addition to the period of forty 
days. 
Ebb and flow. The coming in and going out of tide. An 
expression used formerly to denote the limits of admiral
ty jurisdiction. 
Ebdomadarius /(h)ebdom;}deriy�s/. In ecclesiastical 
law, an officer in cathedral churches who supervised the 
regular performance of divine service, and prescribed 
the particular duties of each person in the choir. 
Eberemorth, eberemors, eberemurder. See Aberemur
der. 
EBIT. Abbreviation for earnings before interest and tax
es (also called operating earnings). 
Ebriety / �bray�diy /. Drunkenness; alcoholic intoxi
cation. 
Ecce modo mirum, quod femina fert breve regis, non 
nominando virum, conjunctum robore legis / eksiy 
mowdow mayr�m, kwod fem�n� f�rt briyviy riyj�s, non 
nom�nrendow v�r�m, k�nj�1Jkt�m rowb�riy liyj�s/. Be
hold, indeed, a wonder! that a woman has the king's 
writ without naming her husband, who by law is united 
to her. 
Eccentricity. Personal or individual peculiarities of 
mind and disposition which markecly distinguish the 
subject from the ordinary, normal, or average types of 
men, but do not amount to mental unsoundness or 
insanity. 
Ecclesia /�kliyz(i)y�/. Lat. An assembly. A Christian 
assembly; a church. A place of religious worship. In 
the law, generally, the word is used to denote a place of 
religious worship, and sometimes a parsonage. 
Ecclesia ecclesire decimas solvere non debet /�k
liyz(i)y� �kliyz(h)(i)yiy des�m�s solv�riy non deb�t/. A 
church ought not to pay tithes to a church. 
Ecclesia est domus mansionalis omnipotentis dei 
/�kliyz(i)y� est dowm�s mrensh�neyl�s omn�
powtent�s diyay/. The church is the mansionhouse of 
the Omnipotent God. 
Ecclesia est infra retatem et in custodia domini regis, 
qui tenetur jura et hrereditates ejusdem manu ten-

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ECCLESIA NON MORITUR 
ere et defendere I �kliyz(i)y� est infr� �teyt�m et in 
k�stowdiy� dom�nay riyj�s kway t�niyt�r jur� et 
h�red�teytiyz iyj�sd�m mren(y )uw t�niriy et d�fend�riy I. 
The church is under age, and in the custody of the king, 
who is bound to uphold and defend its rights and inheri
tances. 
Ecclesia fungitur vice minoris; meliorem condition
em suam facere potest, deteriorem nequaquam 
I �kliyz(i)y� f�nj�t�r vliysiy m�nor�s; miyliyor�m 
k�ndishiyown�m s(y)uw�m fres�riy powt�st, d�tiriyor�m 
n�kweykw�m/. The church enjoys the privilege of a 
minor; it can make its own condition better, but not 
worse. 
Ecclesire magis favendum est quam personre I �k
liyz(i)yiy meYJ�s f�vend�m est kwrem p�rsow
niy I. The church is to be more favored than the parson 
(or an individual). 
Ecclesia non moritur I �kliyz(i)y� non mor�t�r I. The 
church does not die. 
Ecclesire sculptura I �kliyz(i)yiy sk�lptyur�/. The image 
or sculpture of a church in ancient times was often cut 
out or cast in plate or other metal, and preserved as a 
religious treasure or relic, and to perpetuate the memo
ry of some famous churches. 
Ecclesiarch I �kliyziyark/. The ruler of a church. 
Ecclesia.stic I �kliyziyrest�kl . A clergyman; a priest; a 
man consecrated to the service of the church; as, a 
bishop, a priest, a deacon. 
Ecclesiastical I �kliyziyrest�k�lI. Pertaining to anything 
belonging to or set apart for the church, as distinguished 
from "civil" or "secular," with regard to the world. 
Ecclesiastical authorities. In England, the clergy, un
der the sovereign, as temporal head of the church, set 
apart from the rest of the people or laity, in order to 
superintend the public worship of God and the other 
ceremonies of religion, and to administer spiritual coun
sel and instruction. The several orders of the clergy 
are: (1) Archbishops and bishops; (2) deans and chap
ters; (3) archdeacons; (4) rural deans; (5) parsons (under 
whom are included appropriators) and vicars; (6) cu
rates. Church-wardens or sidesmen, and parish clerks 
and sextons, inasmuch as their duties are connected 
with the church, may be considered to be a species of 
ecclesiastical authorities. See Ecclesiastical courts. 
Ecclesiastical commissioners. In England, a body cor
porate, erected by St. 6 & 7 Wm. IV, c. 77, empowered to 
suggest measures conducive to the efficiency of the es
tablished church, to be ratified by orders in council. As 
a body, Ecclesiastical Commissioners have been dis
solved and their functions, rights, property, etc. vested 
in Church Commissioners. 
Ecclesiastical corporation. See Corporation. 
Ecclesiastical council. In New England, fo rmerly a 
church court or tribunal, having functions partly judi
cial and partly advisory, appointed to determine ques
tions relating to church discipline, orthodoxy, standing 
of ministers, controversies between ministers and their 
512 
churches, differences and divisions in churches, and the 
like. 
Ecclesiastical courts (called, also, "Courts Christian"). 
A generic name for certain courts having cognizance 
mainly of spiritual matters. A system of courts in 
England, held by authority of the sovereign, and having 
jurisdiction over matters pertaining to the religion and 
ritual of the established church, and the rights, duties, 
and discipline of ecclesiastical persons as such. They 
are as fo llows: The Archdeacon's Court (now practically 
obsolete), Consistory Court, Provincial Courts (i.e. Court 
of Arches of Canterbury and Chancery Court of York), 
Court of Faculties, and Court of Final Appeal (Judicial 
Committee of the Privy Council). Modern jurisdiction is 
limited to matters of ecclesiastical discipline and church 
property. 
Ecclesiastical division of England. This is a division 
into provinces, dioceses, archdeaconries, rural deaneries, 
and parishes. 
Ecclesiastical jurisdiction. Jurisdiction over ecclesias
tical cases and controversies; such as appertains to the 
ecclesiastical courts. 
Ecclesiastical law. The body of jurisprudence adminis
tered by the ecclesiastical courts of England; derived, in 
large measure, from the canon and civil law. As now 
restricted, it applies mainly to the affairs, and the 
doctrine, discipline, and worship, of the established 
church. 
Ecclesiastical matter. One that concerns doctrine, 
creed, or form of worship of the church, or the adoption 
and enforcement within a religious association of need
ful laws and regulations for the government of the 
membership, and the power of excluding from such 
associations those deemed unworthy of membership. 
Olear v. Haniak, 235 Mo.App. 249, 131 S.W.2d 375, 380. 
Ecclesiastical things. This term, as used in the canon 
law, includes church buildings, church property, ceme
teries, and property given to the church for the support 
of the poor or for any other pious use. 
Ecdicus lekd�b sl. The attorney, proctor, or advocate of 
a corporation. 
Echantillon leyshontiyown /. In French law, one of the 
two parts or pieces of a wooden tally. That in posses
sion of the debtor is properly called the "tally," the 
other "echantillon. " 
Echevin. In French law, a municipal officer correspond
ing with alderman or burgess, and having in some 
instances a civil jurisdiction in certain causes of trifling 
importance. 
Echolalia lekowleyli y�rlreliy�/. The constant and 
senseless repetition of particular words or phrases, rec
ognized as a sign or symptom of insanity or of aphasia. 
Echouement leyshuwmon /. In French marine law, 
stranding.

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513 
Ecology. In general, the study or science of the relation
ships between organisms and their environments; study 
of the environment. See Ecosystems. 
Economic discrimination. Any form of discrimination 
within the field of commerce such as a boycott of a 
particular product or price fixing. See Boycott; Price 
discrimination; Price-fixing. 
Economic duress. Defense of "economic duress," or 
business compulsion, arises where one individual, acting 
upon another's fear of impending financial injury, un
lawfully coerces the latter to perform an act in circum
stances which prevent his exercise of free will. Mancino 
v. Friedman, 69 Ohio App.2d 30, 23 O.O.3d 27, 429 
N.E.2d 11 81, 1186. 
Economic life. Useful or profitable life of property, 
which may be shorter than the physical life. See also 
Economic obsolescence. 
Economic loss. In a products' liability action, recovery 
of damages for "economic loss" includes recovery for 
costs of repair and replacement of defective property 
which is the subject of the transaction, as well as com
mercial loss for inadequate value and consequent loss of 
profits or use. Salmon Rivers Sportsman Camps Inc. v. 
Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306, 310. 
Economic obsolescence. Loss of desirability and useful 
life of property due to economic developments (e.g. dete
rioration of neighborhood or zoning change) rather than 
deterioration (functional obsolescence). Term as used 
with respect to valuation of property for taxation is a 
loss of value brought about by conditions that environ a 
structure such as a declining location or down-grading of 
a neighborhood resulting in reduced business volume. 
Piazza v. Town Assessor of Town of Porter, 16 A.D.2d 
863, 228 N.Y.S.2d 397, 398. See also Obsolescence. 
Economic strike. Refusal to work because of dispute 
over wages, hours or working conditions or other condi
tions of employment. An economic strike is one neither 
prohibited by law nor by collective bargaining agree
ment nor caused by employer unfair labor practices, but 
is typically for purpose of enforcing employer compli
ance with union collective bargaining demands, and 
economic strikers possess more limited reinstatement 
rights than unfair labor practice strikers. N. L. R. B. v. 
Transport Co. of Tex., c.A. Tex. , 438 F.2d 258, 262. See 
also Strike. 
Economic waste. An overproduction or excessive drill
ing of oil or gas. 
Economy. Frugality; prudent expenditure of money or 
use of resources. Not synonymous with "parsimony." 
Includes that which pertains to the satisfaction of man's 
needs. D'Arcy v. Snell, 162 Or. 351, 91 P.2d 537, 540. 
Economic structure of country. 
E contra /iy kontr;)I . From the opposite; on the con
trary. 
E converso liy k;)nv�rsow/. Conversely. On the other 
hand; on the contrary. Equivalent to e con tra. 
Black's Law Dictionary 6th Ed.-12 
EDICTUM THEODORICI 
Ecosystems. The totality of cycles and processes which 
constitute the ecology system. 
Ecumenical I eky;)men;)k;)l/iyky;)men;)k;)l/. 
universal; as an ecumenical council. 
General; 
Edderbreche led;)rbriych/. In Saxon law, the off ense 
(now obsolete) of hedge-breaking. 
Edge lease. One located on the edge of an oil bearing 
structure. Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 
F.2d 945, 947. 
Edict. A formal decree, command, or proclamation. A 
positive law promulgated by the sovereign of a country, 
and having reference either to the whole land or some of 
its divisions, but usually relating to affairs of state. It 
differs from a "public proclamation ," in that it enacts a 
new statute, and carries with it the authority of law, 
whereas the latter is, at most, a declaration of a law 
before enacted. In Roman law, sometimes, a citation to 
appear before a judge. A "special edict" was a judgment 
in a case; a "general edict" was in effect a statute. See 
Decree; Edictum; Mandate. 
Edicts of Justinian liydikts �v j;)stin(i)y;)n/. Thirteen 
constitutions or laws of this prince, fo und in most edi
tions of the Corpus Juris Civilis, after the Novels. Be
ing confined to matters of police in the provinces of the 
empire, they have long since been of little use. 
Edictum I;)dikt;)m/. In the Roman law, an edict; a 
mandate, or ordinance. An ordinance, or law, enacted 
by the emperor without the senate; belonging to the 
class of constitutiones principis. An edict was a mere 
voluntary constitution of the emperor; differing from a 
rescript, in not being returned in the way of answer; 
and from a decree, in not being given in judgment; and 
from both, in not being fo unded upon solicitation. 
A general order published by the prretor, on entering 
upon his of fice, containing the system of rules by which 
he would administer justice during the year of his office. 
Edictum annuum I ;)dikt;)m renyuw;)m/. The annual 
edict or system of rules promulgated by a Roman prretor 
immediately upon assuming his office, setting forth the 
principles by which he would be guided in determining 
causes during his term of office. 
Edictum perpetuum I ;)dikt;)m p;)rpetyuw;)m/. The per
petual edict. A compilation or system of law in fifty 
books, digested by Julian, from the prretor's edicts and 
other parts of the Jus Honorarium. All the remains of 
it which have come down to us are the extracts of it in 
the Digests. 
Edictum provinciale I;)dikt;)m pr;)vinshiyeyliy/. An 
edict or system of rules for the administration of justice, 
similar to the edict of the prretor, put forth by the 
proconsuls and proprretors in the provinces of the Ro
man Empire. 
Edictum Theodorici I ;)dikt;)m Oiy;)d;)rliysay I. This is 
the first collection of law that was made after the 
downfall of the Roman power in Italy. It was promul
gated by Theodoric, king of the Ostrogoths, at Rome in 
A.D. 500. It consists of 154 chapters, in which we

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EDICTUM THEODORICI 
recognize parts taken from the Code and N ovellre of 
Theodosius, from the Codices Gregorianus and Hermo
genianus, and the Senten tire of Paulus. The edict was 
doubtless drawn up by Roman writers, but the original 
sources are more disfigured and altered than in any 
other compilation. This collection of law was intended 
to apply both to the Goths and the Romans, so far as its 
provisions went; but, when it made no alteration in the 
Gothic law, that law was still to be in force. 
Edictum tralatitium /;}dikt;}m trcel;}tish(iy);}m/. Where 
a Roman prretor, upon assuming office, did not publish a 
wholly new edict, but retained the whole or a principal 
part of the edict of his predecessor (as was usually the 
case) only adding to it such rules as appeared to be 
necessary to adapt it to changing social conditions or 
juristic ideas, it was called "edictum tralatitium." 
Edition. The total number of copies of a publication 
printed from a single typesetting or at one specified 
time. May also refer to the form which a pUblication 
takes such as a hardbound or paperback edition. Also, 
the means of identifying the various versions of a given 
publication; e.g. first, second, etc. edition. One of the 
several issues of a newspaper for a single day. 
Editor. One who directs or supervises the policies, con
tent and contributions of a newspaper, magazine, book, 
work of reference, or the like. The term is held to 
include not only the person who writes, edits or selects 
the articles for publication, but he who publishes a 
paper and puts it in circulation. Pennoyer v. Neff, 95 
U.S. 721, 24 L.Ed. 565. 
Editus /ed;}t;}s/. In old English law, put forth or promul
gated, when speaking of the passage of a statute; and 
brought forth, or born, when speaking of the birth of a 
child. 
Edmunds Act. An act of Congress of March 22, 1882, 
punishing polygamy. 
Educate. To give proper moral, as well as intellectual 
and physical, instruction. To prepare and fit oneself for 
any calling or business, or for activity and usefulness in 
life. 
Education. Comprehends not merely the instruction 
received at school or college, but the whole course of 
training; moral, religious, vocational, intellectual, and 
physical. Education may be particularly directed to 
either the mental, moral, or physical powers and facul
ties, but in its broadest and best sense it relates to them 
all. Acquisition of all knowledge tending to train and 
develop the individual. See also Board of education. 
Educational expenses. Employees may deduct edu
cation expenses as ordinary and necessary business ex
penses provided such items were incurred for either of 
two reasons: (1) to maintain or improve existing skills 
required in present job or (2) to meet the express re
quirements of the employer or the requirements im
posed by law to retain· employment status. Such ex
penses are not deductible if the education is (1) required 
to meet the minimum educational requirements for the 
taxpayer's existing job or (2) the education qualifies the 
514 
individual for a new trade or business. Ronald F. Weisz
mann v. Commissioner of Internal Revenue, 443 F.2d 29. 
Educational institution. A school, seminary, college, 
university, or other educational establishment, not nec
essarily a chartered institution. As used in a zoning 
ordinance, the term may include not only buildings, but 
also all grounds necessary for the accomplishment of the 
full scope of educational instruction, including those 
things essential to mental, moral, and physical develop
ment. Commissioners of District of Columbia v. Shan
non & Luchs Const. Co., 57 App.D.C. 67, 17 F.2d 219, 
220. 
Educational purposes. Term as used in constitutional 
and statutory provisions exempting property so used 
from taxation, includes systematic instruction in any 
and all branches of learning from which a substantial 
public benefit is derived, and is not limited to such 
school properties as would relieve some substantial edu
cational burden from the state. McKee v. Evans, Alas
ka, 490 P.2d 1226, 1230. 
E.E.O.C. Equal Empioyment Opportunity Commission. 
Effect, v. To do; to produce; to make; to bring to pass; 
to execute; enforce; accomplish. 
Effect, n. That which is produced by an agent or cause; 
result; outcome; consequence. State by Clark v. Wol
koff, 250 Minn. 504, 85 N.W.2d 401, 410. The result 
which an instrument between parties will produce in 
their relative rights, or which a statute will produce 
upon the existing law, as discovered from the language 
used, the forms employed, or other materials for con
struing it. The operation of a law, of an agreement, or 
an act. The phrases "take effect," "be in force," "go 
into operation," etc., are used interchangeably. 
With effect. With success; as, to prosecute an action 
with effect. 
Effecting loan. To bring about a loan. To accomplish, 
fulfill, produce or make a loan. It means the result or 
consequence of bringing into operation a loan; while 
"renewal" is not a loan, but an extension of the time of 
payment. 
Effective assistance of counsel. Conscientious, mean
ingful representation wherein accused is advised of his 
rights and honest, learned and able counsel is given a 
reasonable opportunity to perform task assigned to him. 
State v. Williams, Iowa, 207 N.W.2d 98, 104. Bench
mark for judging any claim of ineffectiveness of counsel 
must be whether counsel's conduct so undermined prop
er functioning of adversarial process that trial cannot be 
relied on as having produced a just result. See Strick
land v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 
L.Ed.2d 674. As required by 6th Amendment for crimi
nal defendant, does not mean errorless counsel, and not 
counsel judged ineffective by hindsight, but counsel rea
sonably likely to render and rendering reasonably effec
tive assistance; this necessarily involves inquiry into 
actual performance of counsel in conducting defense, 
based on totality of circumstances of entire record. Bea-

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515 
vers v. Balkcom, C.A.Ga. , 636 F.2d 11 4, 11 5. 18 U.S.C.A. 
§ 3006A. See Counsel, right to. 
Effective date. Date on which contract, law, insurance 
policy, or the like, takes effect. 
Effective possession. See Constructive possession. 
Effective procuring cause. The "effective procuring 
cause" of sale of realty is ordinarily the broker who first 
secures the serious attention of the customer and is 
instrumental in bringing the parties together. See 
Cause; Efficient cause; Proximate cause. 
Effects. Personal estate or property; though the term 
may include both real and personal property. See Per
sonal effects. 
Effectus sequitur causam / :lfekt:ls siykw:lt:lr k6z:lm/. 
The effect follows the cause. 
Effet. In France an "effet" is a bill of exchange; "effets" 
means goods, movables, chattels. In re Steimes' Estate, 
150 Misc. 279, 270 N.Y.S. 339. 
Effets mobiliers / :lfets mowb:llirz/. Funds or stocks. In 
re Steimes' Estate, 150 Misc. 279, 270 N.Y.S. 339. 
Efficient. Causing an effect; particularly the result or 
results contemplated. Adequate in performance or pro
ducing properly a desired effect. Spotts v. Baltimore & 
O. R. Co., C.C.A.Ind., 102 F.2d 160, 162. 
Efficient cause. The working cause; that cause which 
produces effects or results. An intervening cause, which 
produces results which would not have come to pass 
except for its interposition, and for which, therefore, the 
person who set in motion the original chain of causes is 
not responsible. Southland-Greyhound Lines v. Cotten, 
Tex.Civ.App., 55 S.W.2d 1066, 1069. The cause which 
originates and sets in motion the dominating agency 
that necessarily proceeds through other causes as mere 
instruments or vehicles in a natural line of causation to 
the result. That cause of an injury to which legal 
liability attaches. The "proximate cause." Hillis v. 
Home Owners' Loan Corporation, 348 Mo. 601, 154 
S.W.2d 761, 764. The phrase is practically synonymous 
with "procuring cause." Buhrmester v. Independent 
Plumbing & Heating Supply Co., Mo.App., 151 S.W.2d 
509, 513. The immediate agent in the production of an 
effect. Armijo v. World Ins. Co., 78 N.M. 204, 429 P.2d 
904,906. 
The proximate cause of an injury is the efficient 
cause, the one that necessarily sets the other causes in 
operation, and, where a wrongful act puts other forces in 
operation which are natural and which the act would 
reasonably and probably put in action, the party who 
puts in force the first efficient cause will be responsible 
in damages for the injury proved, although immediately 
resulting from the other force so put in motion. 
See also Proximate cause. 
Efficient intervening cause. An intervening efficient 
cause is a new and independent force, which breaks the 
causal connection between the original wrong and the 
injury, and is the proximate and immediate cause of the 
injury. Thus, the original negligent actor is not liable 
EGRESS 
for an injury that could not have been foreseen or 
reasonably anticipated as the probable consequence of 
his negligent act, and would not have resulted from it 
had not the intervening efficient cause interrupted the 
natural sequence of events, turned aside their course, 
and produced the injury. Smith v. Secrest, 590 S.W.2d 
386, 389. See also Proximate cause. 
Effigy / ef:ljiy / . The figure or corporeal representation of 
a person. 
Effluent. Liquid waste which is discharged into a lake, 
river, etc. 
Emux / efl�ks/ . The running, as of a prescribed period 
of time to its end; expiration by lapse of time. Particu
larly applied to the termination of a lease by the expira
tion of the term for which it was made. 
Emuxion of time / :lfl�ksh:ln :lV taym/. When this 
phrase is used in leases, conveyances, and other like 
deeds, or in agreements expressed in simple writing, it 
indicates the conclusion or expiration of an agreed term 
of years specified in the deed or writing, such conclusion 
or expiration arising in the natural course of events, in 
contradistinction to the determination of the term by 
the acts of the parties or by some unexpected or unusual 
incident or other sudden event. 
Efforcialiter / :lfors(h)iyeyl:lt:lr /. Forcibly; applied to 
military force. 
Effort. An attempt; an endeavor; a struggle directed to 
the accomplishment of an object. To try. 
Effraction / :lfrreksh:ln/ . A breach made by the use of 
force. 
Effractor / :lfrrekt:lr /. One who breaks through; one who 
commits a burglary. 
Effusio sanguinis / :lfyuwz(h)(i)yow sreIJgw:ln:ls/. In old 
English law, the shedding of blood; the mulct, fine, wite, 
or penalty imposed for the shedding of blood, which the 
king granted to many lords of manors. See Bloodwit. 
E.g. An abbreviation of exempli gratia. For the sake of 
an example. 
Ego /iygow/. I; myself. This term is used in forming 
genealogical tables, to represent the person who is the 
object of inquiry. 
The part of the conscious personality which has the 
task of balancing the demands of the real world and 
maintaining harmony between the id (instinctual drives) 
and the superego (morality of the conscience); that por
tion of the total personality noticeable to others which 
maintains contact with the environment of the outer 
world. 
See also Alter ego. 
Ego, talis /iygow, teyl:ls/. I, such a one. Words used in 
describing the forms of old deeds. 
Egrediens et exeuns / :lgriydiyenz et eksiy�nz/. In old 
pleading, going forth and issuing out of (land). 
Egress /iygres/. The path or opening by which a person 
goes out; exit. The means or act of going out.

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EGYPTIANS 
Egyptians. Derivative name in old England for "gyp
sies"; a wandering, nomadic people without permanent 
abode, living in tents or other shelters, pretending to tell 
fortunes of others. 
Eia, or Ey. An island. 
Eighteenth Amendment. The amendment to the U.S. 
Constitution added in 1919 which prohibited the manu
facture, sale, transportation and exportation of intoxi
cating liquors in all the States and Territories of the 
United States and which was repealed in 1933 by the 
Twenty-first Amendment. 
Eighth Amendment. The amendment to the U.S. Con
stitution added in 1791 which prohibits excessive bail, 
excessive fines and cruel and unusual punishment. 
Eight hour laws. Statutes (e.g. Adamson Act; Fair 
Labor Standards Act) which established eight hours as 
the length of a day's work, prohibited work beyond this 
period, and required payment of overtime for work in 
excess of this period. See Wage and hour laws. 
Eigne leyn/. L. Fr. Eldest; eldest-born. The term is of 
common occurrence in the old books. Thus, bastard 
eigne means an illegitimate son whose parents after
wards marry and have a second son for lawful issue, the 
latter being called mulier puisne (after-born). Eigne is 
probably a corrupt form of the French "aine. " 2 Bl. 
Comm. 248. 
Eignesse leynes/. See Esnecy. 
Ei incumbit probatio, qui dicit, non qui negat; cum 
per rerum naturam factum negantis probatio nulla 
sit liyay ink�mb;}t pr;}beysh(iy)ow kway dis;}t, non kway 
neg;}t; k�m p;lr rir;}m n;}t(y)ur;}m frekt;}m n;}grent;}s 
pr;}beysh(iy)ow n�l;} sit/. The proof lies upon him who 
affirms, not upon him who denies; since, by the nature 
of things, he who denies a fact cannot produce any proof. 
Einecia l;}niysiy;}/. Eldership. See Esnecy. 
Einetius I ;}niysh(iy);}s/. In English law, the oldest; the 
first-born. 
Ei nihil turpe, cui nihil satis liyay nay(h);}l t�rpiy, 
k(yuw)ay nay(h);}l sret;}s/. To him to whom nothing is 
enough, nothing is base. 
Eire, or eyre ler/. In old English law, a journey, route, 
or circuit. Justices in eire were judges who were sent by 
commission, every seven years, into various counties to 
hold the assizes and hear pleas of the crown. 3 Bl. 
Comm. 58. 
Eirenarcha I ayr;}nark;}I . A name formerly given to a 
justice of the peace. In the Digests, the word is written 
"irenarcha. " 
Eisdem modis dissolvitur obligatio qUa! nascitur ex 
contractu, vel quasi, quibus contrahitur liyaysd;}m 
mowd;}s d�zolv;}t�r obbgeysh(iy)ow kwiy nres;}t�r eks 
k;}ntrrekt(y)uw, vel kweysay, kWlD;}s k;}ntrey(h);}t;}r/. An 
obligation which arises from contract, or quasi contract, 
is dissolved in the same ways in which it is contracted. 
Eisne I eyn/. The senior; the oldest son. Spelled also, 
"eigne," "einsne," "aisne," "eign." 
516 
Eisnetia, e inetia 1;}(z)niysh(iy);}/. The e;hare of the old
est son. The portion acquired by primogeniture. 
Either. Each of two; the one and the other; one or the 
other of two alternatives; one of two. Often used, 
however, with reference to more than two, in which case 
it may mean "each" or "any"; but does not mean "all". 
State v. Davenport, Tex.Civ.App., 417 S.W.2d 337, 340. 
Eject. To cast, or throw out; to oust, or dispossess; to 
put or turn out of possession. To expel or thrust forci
bly, as disorderly patrons. 
Ejecta I;}jekt;}I. In old English law, a woman ravished 
or deflowered, or cast forth from the virtuous. 
Ejection. A turning out of possession. 
Ejectione custodia! I ;}jekshiyowniy k;}stowdiyiy I. In old 
English law, ej ectment of ward. This phrase, which is 
the Latin equivalent for the French "ejectment de 
garde, " was the title of a writ which lay for a guardian 
when turned out of any land of his ward during the 
minority of the latter. It lay to recover the land or 
person of his ward, or both. 
Ejectione firma! I ;}jekshiyowniy f�rmiy I. Ejection, or 
ej ectment of farm. The name of a writ or action of 
trespass, which lay at common law where lands or 
tenements were let for a term of years, and afterwards 
the lessor, reversioner, remainder-man, or any stranger 
ejected or ousted the lessee of his term, ferme, or farm 
(ipsum a firma ejecit). In this case the latter might 
have his writ of ejection, by which he recovered at first 
damages for the trespass only, but it was afterwards 
made a remedy to recover back the term itself, or the 
remainder of it, with damages. 3 Bl.Comm. 199. It is 
the foundation of the modern action of ej ectment. 
Ejectment. At common law, this was the name of a 
mixed action (springing from the earlier personal action 
of ejectione firmre) which lay for the recovery of the 
possession of land, and for damages for the unlawful 
detention of its possession. The action was highly ficti
tious, being in theory only for the recovery of a term for 
years, and brought by a purely fictitious person, as 
lessee in a supposed lease from the real party in inter
est. The latter's title, however, had to be established in 
order to warrant a recovery, and the establishment of 
such title, though nominally a mere incident, was in 
reality the object of the action. Hence this convenient 
form of suit came to be adopted as the usual method of 
trying titles to land. 3 Bl.Comm. 199; French v. Robb, 
67 N.J.Law 260, 51 A. 509. In England, since the 
Judicature Act of 1852, ej ectment has given place to a 
new action for the recovery of land. 
The common law action for ej ectment has been mate
rially modified by statute in most states and may come 
under the title of action to recover possession of land, 
action for summary process, action for eviction, or forc
ible entry and detainer action. 
Ejectment is an action to restore possession of proper
ty to the person entitled to it. Not only must the 
plaintiff establish a right to possession in himself, but he 
must also show that the defendant is in wrongful posses-

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517 
sion. If the defendant has only trespassed on the land, 
the action is for trespass (i.e. damages). 
See also Eviction; Forcible entry and detainer; Process 
(Summary process). 
Ejectment bill. A bill in equity brought merely for the 
recovery of real property, together with an account of 
the rents and profits, without setting out any distinct 
ground of equity jurisdiction; hence demurrable. 
Equitable ejectment. A proceeding brought to enforce 
specific performance of a contract for the sale of land, 
and for some other purposes, which is in form an action 
of ej ectment, but is in reality a substitute for a bill in 
equity. 
Justice ejectment. A statutory proceeding for the evic
tion of a tenant holding over after termination of the 
lease or breach of its conditions. 
Ejector. One who ej ects, puts out, or dispossesses anoth
er. 
Casual ejector. The nominal defendant in an action of 
ej ectment; so called because, by a fiction of law peculiar 
to that action, he is supposed to come casually or by 
accident upon the premises and to ej ect the lawful 
possessor. 3 Bl.Comm. 203. 
Ejectum I �j ekt�m/. That which is thrown up by the sea. 
Also jetsam, wreck, etc. 
Ejectus I� jekt�s/. In old English law, a whore-monger. 
Ejercitoria leyhersiytoriy�/. In Spanish law, the name 
of an action lying against a ship's owner, upon the 
contracts or obligations made by the master for repairs 
or supplies. It corresponds to the actio exercitoria of the 
Roman law. 
Ejidos leyhiyoows/. In Spanish law, commons; lands 
used in common by the inhabitants of a city, pueblo, or 
town, for pasture, wood, threshing-ground, etc. 
Ejuration liyj�reysh�n/. Renouncing or resigning one's 
place. 
Ejusdem generis liyj�sd�m jen�r�s/. Of the same kind, 
class, or nature. In the construction of laws, wills, and 
other instruments, the "e jusdem generis rule" is, that 
where general words follow an enumeration of persons 
or things, by words of a particular and specific meaning, 
such general words are not to be construed in their 
widest extent, but are to be held as applying only to 
persons or things of the same general kind or class as 
those specifically mentioned. U. S. v. LaBrecque, D.C. 
N.J., 419 F.Supp. 430, 432. The rule, however, does not 
necessarily require that the general provision be limited 
in its scope to the identical things specifically named. 
Nor does it apply when the context manifests a contrary 
intention. 
Under "e jusdem generis" canon of statutory construc
tion, where general words follow the enumeration of 
particular classes of things, the general words will be 
construed as applying only to things of the same general 
class as those enumerated. Campbell v. Board of Dental 
Examiners, 53 Cal.App.3d 283, 125 Cal. Rptr. 694, 696. 
ELECTION 
Ejus est interpretari cujus est condere I iyj�s est 
int�rpr�teray kyuwj�s est kond�riy I. It is his to inter
pret whose it is to enact. 
Ejus est nolle, qui potest velIe liyj�s est noliy, kwliy 
powt�st veliy/. He who can will [exercise volition], has 
a right to refuse to will [to withhold consent]. This 
maxim is sometimes written, Ejus est non nolle qui 
potest velle, and is translated, "He may consent tacitly 
who may consent expressly." 
Ejus est periculum cujus est dominium aut commo
dum liyj�s est p�riky�l�m kyuwj�s est d�miniy�m ot 
kom�d�m/. He who has the dominion or advantage has 
the risk. 
Ejus nulla culpa est, cui parere necesse sit liyj�s n�l� 
k�lp� est, k(yuw)ay p�reriy n�sesiy sit!. No guilt at
taches to him who is compelled to obey. Obedience to 
existing laws is a sufficient extenuation of guilt before a 
civil tribunal. 
Elaborare 1�1ci:b�reriy/. In old European law, to gain, 
acquire, or purchase, as by labor and industry. 
Elaboratus I �1ci:b�reyt�s/. Property which is the acqui
sition of labor. 
Elder brethren. A distinguished body of men, elected as 
masters of Trinity House, an institution incorporated in 
the reign of Henry VIII, charged with numerous impor
tant duties relating to the marine, such as the superin
tendence of light-houses. The full title of the corpora
tion is Elder Brethren of the Holy and Undivided Trini
ty. 
Elder title. A title of earlier date, but coming simulta
neously into operation with a title of younger origin, is 
called the "elder title," and prevails. 
Eldest. Oldest; first born; one with greatest seniority. 
Electa una via, non datur recursus ad alteram I �lekt� 
yuwn� vay�, non deyt�r r�k�rs�s red o1t�r�m/. He who 
has chosen one way cannot have recourse to another. 
Elected. The word "elected," in its ordinary significa
tion, carries with it the idea of a vote, generally popUlar, 
sometimes more restricted, and cannot be held the syno
nym of any other mode of filling a position. 
Electio est interna libera et spontanea separatio uni 
us rei ab alia, sine compulsione, consistens in animo 
et voluntate I�leksh(iy)ow est int�rn� lib�r� et 
spont�niy� sep�reysh(iy)ow y�nay�s riyay reb eyliy�, say
niy k�mp;}lsiyowniy, k�nsistenz in ren�mow et 
vol�nteytiy/. Election is an internal, free, and sponta
neous separation of one thing from another, without 
compulsion, consisting in intention and will. 
Election. The act of choosing or selecting one or more 
from a greater number of persons, things, courses, or 
rights. The choice of an alternative. The internal, free, 
and spontaneous separation of one thing from another, 
without compulsion, consisting in intention and will. 
The selection of one person from a specified class to 
discharge certain duties in a state, corporation, or socie
ty. An expression of choice by the voters of a public

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ELECTION 
body politic, or as a means by which a choice is made by 
the electors. Nelson v. Robinson, Fla.App., 301 So.2d 
508, 510. With respect to the choice of persons to fill 
public office or the decision of a particular public ques
tion or public policy the term means in ordinary usage 
the expression by vote of the will of the people or of a 
somewhat numerous body of electors. "Election" ordi
narily has reference to a choice or selection by electors, 
while "appointment" refers to a choice or selection by 
an individual. 
The choice which is open to a debtor who is bound in 
an alternative obligation to select either one of the 
alternatives. 
The choice, by the prosecution, upon which of several 
counts in an indictment (charging distinct offenses of 
the same degree, but not parts of a continuous series of 
acts) it will proceed. 
Obligation imposed upon party to choose between two 
inconsistent or alternative rights or claims in cases 
where there is clear intention of the person from whom 
he derives one that he should not enjoy both. Lovett v. 
Stone, 239 N.C. 206, 79 S.E.2d 479, 484, 60 A.L.R.2d 780. 
See also Certificate of election; Equitable election; Free 
and clear. 
Election at large. Election in which a public official is 
selected from a major election district rather than a 
minor subdivision within the larger unit. 
Election of defenses. The selection of a particular de
fense on which to rest in contesting a claim or in 
defending a criminal charge. 
Election of remedies. The liberty of choosing (or the act 
of choosing) one out of several means afforded by law for 
the redress of an injury, or one out of several available 
forms of action. An "election of remedies" arises when 
one having two coexistent but inconsistent remedies 
chooses to exercise one, in which event he loses the right 
to thereafter exercise the other. Doctrine provides that 
if two or more remedies exist which are repugnant and 
inconsistent with one another, a party will be bound if 
he has chosen one of them. Melby v. Hawkins Pontiac, 
Inc., 13 Wash.App. 745, 537 P.2d 807, 810. Under Rule 
of Civil Procedure 8(a): "Relief in the alternative or of 
several different types may be demanded." See also 
Alternative pleading; Alternative relief; Equitable election. 
General election. One for a definite purpose, regularly 
reoccurring at fixed intervals without any requirements 
other than the lapse of time. Bolin v. Superior Court In 
and For Maricopa County, 85 Ariz. 131, 333 P.2d 295, 
298. One at which the officers to be elected are such as 
belong to the general government; that is, the general 
and central political organization of the whole state, as 
distinguished from an election of officers for a particular 
locality only. Also, one held for the selection of an 
officer after the expiration of the full term of the former 
officer; thus distinguished from a special election, which 
is one held to supply a vacancy in office occurring before 
the expiration of the full term for which the incumbent 
was elected. 
518 
One that regularly recurs in each election precinct of 
the state on a day designated by law for the selection of 
officers, or is held in such entire territory pursuant to 
an enactment specifying a single day for the ratification 
or re jection of one or more measures submitted to the 
people by the Legislature, and not for the election of any 
officer. One that is held throughout the entire state or 
territory. An election for the choice of a national, state, 
judicial, district, municipal, county or township official, 
required by law to be held regularly at a designated 
time, to fill a new office or a vacancy in an office at the 
expiration of the full term thereof. 
In statutes, the term may include a primary election. 
See also Popular election; and Regular election, below. 
Law of wills. A widow's election is her choice of wheth
er she will take what is provided for her in her hus
band's will or rather her statutorily prescribed share; 
that is, whether she will accept the provision made for 
her in the will, and acquiesce in her husband's disposi
tion of his property, or disregard it and claim what the 
law allows her. Logan v. Logan, Tex.Civ.App., 112 
S.W.2d 515, 518. An "election under the will" means 
that a legatee or devisee under a will is put to the choice 
of accepting the beneficial interest offered by the donor 
in lieu of some estate which he is entitled to, but which 
is taken from him by the terms of the will. See also 
Election by spouse; Equitable election. 
Off year election. Election conducted at a time other 
than the presidential election year. 
Popular election. Election by people as a whole, rather 
than by a select group. 
Presidential election. See U.S.Const. Amends. XII, XX, 
XXII-XXVI. 
Primary election. An election by the voters of a ward, 
precinct, or other small district, belonging to a particu
lar party, of representatives or delegates to a convention 
which is to meet and nominate the candidates of their 
party to stand at an approaching municipal or general 
election. Also, an election to select candidates for office 
by a political organization, the voters being restricted to 
the members or supporters of such organization. An 
election, preliminary in nature, the purpose being to 
narrow in number the candidates that will appear on 
the final, official ballot. 
Recall election. Election where voters have opportunity 
to remove public official from elected office. 
Regular election. One recurring at stated times fixed by 
law. A general, usual, or stated election. When applied 
to elections, the terms "regular" and "general" are used 
interchangeably and synonymously. The word "regu
lar" is used in reference to a general election occurring 
throughout the state. See also General election, above. 
Special election. An election for a particular emergency 
or need, conducted in the interval between regularly 
scheduled elections in order to fill a vacancy arising by 
death of the incumbent of the office, decide a question 
submitted on an initiative ref erendum, or recall peti
tion, etc. In determining whether an election is special

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519 
or general, regard must be had to the subject-matter as 
well as date of the election, and, if an election occurs 
throughout state uniformly by direct operation of law, it 
is a "general election," but, if it depends on employment 
of special preliminary proceeding peculiar to process 
which may or may not occur, and the election is applica
ble only to a restricted area less than whole state, it is a 
"special election." 
Election board. A board of inspectors or commissioners 
appointed in each election precinct by government (e.g. 
county or city) authorities responsible for determining 
whether individual voters are qualified, supervising the 
polling, and often ascertaining and reporting the results. 
Local, city or town agency which is charged with the 
conduct of elections. 
Election by spouse. Statutory provision that a surviv
ing spouse may choose as between taking that which is 
provided for her in her husband's will, claiming dower 
or taking her statutorily prescribed share. Such elec
tion may be presented if the will leaves the spouse less 
than she would otherwise receive by statute. This elec
tion may also be taken if the spouse seeks to set aside a 
will which contains a provision to the effect that an 
attempt to contest the will defeats the rights of one to 
take under the will. See also Election (Law of wills); 
Equitable election. 
Election contest. A contest in behalf of one who has 
failed of success in election against right of one who has 
been declared or determined by proper authority to have 
been successful. Election contest involves matter of 
going behind election returns and inquiring into qualifi
cations of electors, counting of ballots, and other matters 
affecting validity of ballots. Vance v. Johnson, 238 Ark. 
1009, 386 S.W.2d 240, 242. 
Election district. A subdivision of territory, whether of 
state, county, or city, the boundaries of which are fixed 
by law, for convenience in local or general elections. 
Election, doctrine of. When a third person has con
tracted with an agent without knowing of the agency, 
and thereafter the third person discovers the agency and 
the identity of the principal, the third person may 
enforce the contract against the agent or against the 
principal at his election, but not against both. This is 
known as the doctrine of election. See Election. 
Election dower. A name sometimes given to the provi
sion which a law or statute makes for a widow in case 
she "elects" to reject the provision made for her in the 
will and take what the statute accords. Stanton v. 
Leonard, 344 Mo. 998, 130 S.W.2d 487, 489. See Election 
(Law of wills); Election by spouse. 
Electiones fiant rite et libere sine interruptione ali
qua / �lt�kshiy6wniyz fay�nt raytiy et lib�riy sayniy 
int�r�pshiy6wniy rel�kw�/. Elections should be made in 
due form, and freely, without any interruption. 
Election, estoppel by. An estoppel which arises by a 
choice between inconsistent remedies. See Election 
(Election of remedies). 
ELECTOR 
An estoppel predicated on a voluntary and intelligent 
action or choice of one of several things which is incon
sistent with another, the effect of the estoppel being to 
prevent the party so choosing from afterwards reversing 
his election or disputing the state of affairs or rights of 
others resulting from his original choice. 
The doctrine of "estoppel by election" against benefi
ciary who has elected to take favorable provisions of will 
from objecting to other provisions of will applies only 
where will undertakes to bestow a gift and also deprive 
donee of a prior existing right, thus confronting devisee 
with alternative of accepting devise and renouncing 
prior right or of retaining latter and renouncing devise. 
Mason & Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 
733. 
Election judges. In English law, judges of the High 
Court selected in pursuance of Part III of the Represen
tation of the People Act (1983) and the Supreme Court 
Act (1981) for the trial of election petitions, from the 
puisne judges of the Queen's Bench Division. 
Election of remedies. See Election. 
Election petitions. In England, petitions for inquiry 
into the validity of elections of members of parliament 
when it is alleged that the return of a member is invalid 
for. bribery or any other reason. 
Election returns. The report made to the board of 
canvassers or election board of the number of votes cast 
for each candidate or proposition voted upon by those 
charged by law with the duty of counting or tallying the 
votes for or against the respective candidates or proposi
tions. 
Electio semel facta, et placitum testatum non patitur 
regressum /�leksh(iy)ow sem�l frekt� et plres�t�m 
testeyt�m non pret�t�r r�gres�m/. Election once made, 
and plea witnessed (or intent shown), suffers not a 
recall. 
Elective. Dependent upon choice; bestowed or passing 
by election. Also pertaining or relating to elections; 
conferring the right or power to vote at elections. 
Elective franchise. The right of voting at public elec
tions. The privilege of qualified voters to cast their 
ballots for the candidates they favor at elections autho
rized by law as guaranteed by Fifteenth and Nineteenth 
Amendments to Constitution, and by federal voting 
rights acts. See Voting Rights Act. 
Elective office. One which is to be filled by popular 
election. One filled by the direct exercise of the voters' 
franchise in contrast to an appointive office. 
Elective share. See Election (Law of wills); Election by 
spouse. 
Elector. A duly qualified voter; one who has a vote in 
the choice of any officer; a constituent. One who elects 
or has the right of choice, or who has the right to vote 
for any functionary, or for the adoption of any measure. 
In a narrower sense, one who has the general right to 
vote, and the right to vote for public officers. One

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ELECTOR 
authorized to exercise the elective franchise. See Voting 
Rights Act. 
One of the persons chosen to comprise the "electoral 
college" (q.v.). 
Also, the title of certain German princes who had a 
voice in the election of the Holy Roman Emperors. The 
office of elector in some instances became hereditary 
and was connected with territorial possessions. 
Sometimes, one who exercises the right of election in 
equity. 
Registered qualified elector. One possessing the consti
tutional qualifications, and registered under the regis
tration statute. 
Electoral. Pertaining to electors or elections; composed 
or consisting of electors. See Electoral college. 
Electoral college. The college or body of electors of a 
state chosen to elect the president and vice-president; 
also, the whole body of such electors, composed of the 
electoral colleges of the several states. See U.S.Const. 
Amend. XII. 
Electoral process. Generic term for methods by which 
persons are elected to public office; voting. 
Electronic funds transfers. A transaction with a finan
cial institution by means of a computer, telephone or 
electronic instrument. An electronic funds transfer is 
typically initiated by a bank customer (the originator) 
who requests the bank to transfer credit to the account, 
usually in another bank, of another person (the benefi
ciary). Such transactions are governed by federal and 
state laws. See 15 U.S.C.A. § 1693 et seq.; U.C.C. Art. 
4A. 
Electronic surveillance. See Eavesdropping; Wiretap
ping. 
Eleemosynre / el;}mos:miy /. Possessions belonging to the 
church. 
Eleemosyna regis, and eleemosyna aratri, or caruca
rum /el;}mos;}n;} riyj;}sr;}reytrayrkrer;}ker;}m/. A pen
ny which King Ethelred ordered to be paid for every 
plow in England towards the support of the poor. 
Eleemosynaria / el;}mos;}neriy;}/. The place in a reli
gious house where the common alms were deposited, and 
thence by the almoner distributed to the poor. In old 
English law, the aumerie, aumbry, or ambry; words still 
used in common speech in the north of England, to 
denote a pantry or cupboard. The office of almoner. 
Eleemosynarius /el;}mos;}neriy;}s/. In old English law, 
an almoner, or chief officer, who received the eleemosy
nary rents and gifts, and in due method distributed 
them to pious and charitable uses. 
The name of an officer (lord almoner) of the English 
kings, in former times, who distributed the royal alms or 
bounty. 
Eleemosynary / ebmos;}ne(h)riy / eliy;}moz;}ne(h)riy /. Re
lating or devoted to charity; given in charity; having 
the nature of alms. United Community Services v. 
520 
Omaha Nat. Bank, 162 Nev. 786, 77 N.W.2d 576, 582. 
See Charity; Charitable. 
Eleemosynary corporation. A private corporation cre
ated for charitable and benevolent purposes. Charitable 
corporation. See also Charitable organizations. 
Eleemosynary defense. Term used to describe defense 
available in some jurisdictions for charitable corpora
tions and institutions when they are sued in tort; 
though such tort immunity has been abrogated or great
ly restricted in many states. 
Eleganter /el;}grent;}r/. In the civil law, accurately; 
with discrimination. 
Elegit / ;}liyj;}t/. (Lat. He has chosen.) This was the 
name, in English practice, of a writ of execution first 
given by the statute of Westm. 2 (13 Edw. I, c. 18) either 
upon a judgment for a debt or damages or upon the 
forfeiture of a recognizance taken in the king's court. It 
was so called because it was in the choice or election of 
the plaintiff whether he would sue out this writ or a fi. 
fa. By it the defendant's goods and chattels were ap
praised and all of them (except oxen and beasts of the 
plow) were delivered to the plaintiff, at such reasonable 
appraisement and price, in part satisfaction of his debt. 
If the goods were not sufficient, then the moiety of his 
freehold lands, which he had at the time of the judg
ment given, were also to be delivered to the plaintiff, to 
hold till out of the rents and profits thereof the debt be 
levied, or till the defendant's interest be expired. Dur
ing this period the plaintiff was called "tenant by eleg
it," and his estate, an "estate by elegit." Such writ was 
abolished by Administration of Justice Act of 1956. 
Element. Material; substance; ingredient; factor. See 
Elements of crime. 
Also, one of the simple substances or principles of 
which, according to early natural philosophers, the 
physical universe is composed, the four elements pointed 
out by Empedocles being fire, air, water, earth. See 
Elements. 
Elements. The forces of nature. Violent or severe 
weather. The ultimate undecomposable parts which 
unite to form anything. Popularly, fire, air, earth, and 
water, anciently supposed to be the four simple bodies of 
which the world was composed. Often applied in a 
particular sense to wind and water, as "the fury of the 
elements." Fire and water as elements included in the 
expression "damages by the elements" means the same 
thing as "damages by the act of God." 
Elements of crime. Those constituent parts of a crime 
which must be proved by the prosecution to sustain a 
conviction. Com. v. Burke, 390 Mass. 480, 457 N.E.2d 
622, 624. A term used by the common law to refer to 
each component of the actus reus, causation, and the 
mens rea that must be proved in order to establish that 
a given offense has occurred. The term is more broadly 
defined by the Model Penal Code in § 1.13(9) to refer to 
each component of the actus reus, causation, the mens 
rea, any grading factors, and the negative of any de
fense.

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521 
Eleventh Amendment. The Amendment to the U.S. 
Constitution, added in 1798, which provides that the 
judicial power of the U.S. shall not extend to any suit in 
law or equity, commenced or prosecuted against one of 
the United States by citizens of another state, or by 
citizens or subjects of any foreign state. 
Eligible. Fit and proper to be chosen; qualified to be 
elected. Capable of serving, legally qualified to serve. 
Capable of being chosen, as a candidate for office. Also, 
qualified and capable of holding office. See also Capaci
ty; Competency; Duly qualified; Qualified. 
Eligibility. Qualification for an office, e position, or 
specific status. Commonly refers to "legal" qualifica
tion. See also Eligible. 
Elimination. In old English law, the act of banishing or 
turning out of doors; re jection. 
Elinguation liylilJgweysh:m/. The punishment of cut
ting out the tongue. 
Elisors I �layz�rz/. Electors or choosers. Persons ap
pointed by the court to execute writs of venire, in cases 
where both the sheriff and coroner are disqualified from 
acting, and · whose duty is to choose-that is, name and 
return-the jury. 3 Bl.Comm. 355. 
Persons appointed to execute any writ, in default of 
the sheriff and coroner, are also called "elisors." An 
elisor may be appointed to take charge of a jury retiring 
to deliberate upon a verdict, when both sheriff and 
coroner are disqualified or unable to act. 
Elkins Act. Federal Act (1903) which strengthened the 
Interstate Commerce Act by prohibiting rebates and 
other forms of preferential treatment to large shippers. 
Ell. A measure of length answering to the modern yard. 
1 Bl.Comm. 275. See also Meter. 
Ellenborough's Act I el�nbr�z rekt/. An English statute 
(43 Geo. III, c. 58� punishing offenses against the person. 
Ellipsis I �lips�s/. Omission of words or clauses neces
sary to complete the construction, but not necessary to 
convey the meaning. 
Elogium 1�16wjiy�m/. In the civil law, a will or testa
ment. 
Eloigne 1�16yn/. (Fr. i!loigner, to remove to a distance; 
to remove afar off.) A return to a writ of replevin, when 
the chattels have been removed out of the way of the 
sheriff. 
Eloignment I �16ynm�ntl. The getting a thing or person 
out of the way; or removing it to a distance, so as to be 
out of reach. 
Elongata I �lolJgeyt�liylolJgeyt�/. Eloigned; carried 
away to a distance. The old form of the return made by 
a sheriff to a writ of replevin, stating that the goods or 
beasts had been eloigned; that is, carried to a distance, 
to places to him unknown. 3 Bl.Comm. 148. The word 
eloigne is sometimes used as synonymous with elongata. 
Elongatus liylolJgeyt�s/. Eloigned. A return made by a 
sheriff to a writ de homine replegiando, stating that the 
EMANCIPATION 
party to be replevied has been eloigned, or conveyed out 
of his jurisdiction. 3 Bl.Comm. 129. 
Elongavit liylolJgeyv�t/. In England, where in a pro
ceeding by foreign attachment the plaintiff has obtained 
judgment of appraisement, but by reason of some act of 
the garnishee the goods cannot be appraised (as where 
he has removed them from the city, or has sold them, 
etc.), the serjeant-at-mace returns that the garnishee has 
eloigned them, i.e., removed them out of the jurisdiction, 
and on this return (called an "elongavit") judgment is 
given for the plaintiff that an inquiry be made of the 
goods eloigned. This inquiry is set down for trial, and 
the assessment is made by a jury after the manner of 
ordinary issues. 
Elopement. The act of running away, leaving without 
permission, or escaping from custody. An unmarried 
couple's act of secretly leaving home for the purpose of 
getting married. 
At common law, the act of a wife who voluntarily 
deserts her husband to go away with and cohabit with 
another man. State v. Hopper, 186 N.C. 405, 119 S.E. 
769. 
Elsewhere. In another place; in any other place. The 
term does not always mean literally any other place 
whatever, but may be more or less limited by the con
text. 
In shipping articles, this term, following the designa
tion of the port of destination, must be construed either 
as void for uncertainty or as subordinate to the principal 
voyage stated in the preceding words. 
Eluviation I �l(y)uwviyeysh�n/. Movement of soil caused 
by excessive water in soil. 
Emanations. The act of coming or flowing forth from 
something. That which flows or comes forth from some
thing. An effluence. 
Emancipated minor. A person under 18 years of age 
who is totally self -supporting. 
Emancipation. The act by which one who was unfree, 
or under the power and control of another, is rendered 
free, or set at liberty and made his own master. 
A surrender and renunciation of the correlative rights 
and duties touching the care, custody and earnings of a 
child. Schumm v. Schumm, 122 N.J.S uper. 146, 299 
A.2d 423, 425. The term is principally used with refer
ence to the emancipation of a minor child by its parents, 
which involves an entire surrender of the right to the 
care, custody, and earnings of such child as well as a 
renunciation of parental duties. Glover v. Glover, 44 
Tenn.App. 712, 319 S. W.2d 238, 241. The emancipation 
may be express, as by voluntary agreement of parent 
and child, or implied from such acts and conduct as 
import consent, and it may be conditional or absolute, 
complete or partial. Complete emancipation is entire 
surrender of care, custody, and earnings of child, as well 
as renunciation of parental duties. And a "partial 
emancipation" frees a child for only a part of the period 
of minority, or from only a part of the parent's rights, or 
for some purposes, and not for others.

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EMANCIPATION 
There is no fixed age when a child becomes eman
cipated (though it is usually upon reaching majority); it 
does not automatically occur on reaching majority. 
Turner v. McCune, Mass.App., 357 N.E.2d 942. 
In Roman law, the enfranchisement of a son by his 
father, which was anciently done by the formality of an 
imaginary sale. This was abolished by Justinian, who 
substituted the simpler proceeding of a manu
mission before a magistrate. 
Emancipation proclamation. An executive proclama
tion, issued January 1, 1863, by Abraham Lincoln, de
claring that all persons held in slavery in certain desig
nated states and districts were and should remain free. 
Embargo I �mbargow I. A proclamation or order of 
government, usually issued in time of war or threatened 
hostilities, prohibiting the departure of ships or goods 
from some or all ports until further order. Government 
order prohibiting commercial trade with individuals or 
businesses of other specified nations. Legal prohibition 
on commerce. 
The temporary or permanent sequestration of the 
property of individuals for the purposes of a govern
ment, e.g., to obtain vessels for the transport of troops, 
the owners being reimbursed for this forced service. 
Embassador. See Ambassador. 
Embassy lemb�siyl or Embassage lemb�s�j/. Mission, 
function, business, or official residence of an ambassa
dor. Body of diplomatic representatives headed by am
bassador. See Ambassador. 
Ember Days. In ecclesiastical law, those days which the 
ancient fathers called "quatuor tempora jejunii " are of 
great antiquity in the church. They are observed on 
Wednesday, Friday, and Saturday next after Quadrage
sima Sunday, or the first Sunday in Lent, after Whitsun
tide, Holyrood Day, in September, and St. Lucy's Day, 
about the middle of December. Our almanacs call the 
weeks in which they fall the "Ember Weeks," and they 
are now chiefly noticed on account of the ordination of 
priests and deacons; because the canon appoints the 
Sundays next after the Ember weeks for the solemn 
times of ordination, though the bishops, if they please, 
may ordain on any Sunday or holiday. 
Embezzlement. The fraudulent appropriation of proper
ty by one lawfully entrusted with its possession. To 
"embezzle" means willfully to take, or convert to one's 
own use, another's money or property, of which the 
wrongdoer acquired possession lawfully, by reason of 
some office or employment or position of trust. The 
elements of "offense" are that there must be relation
ship such as that of employment or agency between the 
owner of the money and the defendant, the money 
alleged to have been embezzled must have come into the 
possession of defendant by virtue of that relationship 
and there must be an intentional and fraudulent appro
priation or conversion of the money. State v. Thyfault, 
121 N.J.Super. 487, 297 A.2d 873, 879. The fraudulent 
conversion of the property of another by one who has 
lawful possession of the property and whose fraudulent 
522 
conversion has been made punishable by statute. For 
federal crimes involving embezzlement, see 18 U.S.C.A. 
§ 641 et seq. See also Conversion. Compare Theft. 
Emblemata triboniani / emblem�t� tr�bowniyeynay /. 
In the Roman law, alterations, modifications, and addi
tions to the writings of the older jurists, selected to 
make up the body of the Pandects, introduced by Tribo
nian and his associates who constituted the commission 
appointed for that purpose, with a view to harmonize 
contradictions, exscind obsolete matter, and make the 
whole conform to the law as understood in Justinian's 
time, were called by this name. 
Emblements I embl�m�nts/. Crops annually produced 
by labor of tenant. Corn, wheat, rye, potatoes, garden 
vegetables, and other crops which are produced annual
ly, not spontaneously, but by labor and industry. Finley 
v. McClure, 222 Kan. 637, 567 P.2d 851, 853. The 
doctrine of emblements denotes the right of a tenant to 
take and carry away, after his tenancy has ended, such 
annual products of the land as have resulted from his 
own care and labor. See Fructus industriales. 
Emblers de gentz lembl�rz d� jents/. L. Fr. A stealing 
from the people. The phrase occurs in the old English 
rolls of parliament: "Whereas divers murders, emblers 
de gentz, and robberies are committed," etc. 
Embraceor I �mbreys�r I. A person guilty of the offense 
of embracery (q.v.). 
Embracery I �mbreys�riy /. The crime of attempting to 
influence a jury corruptly to one side or the other, by 
promises, persuasions, entreaties, entertainments, douc
eurs, and the like. The person guilty of it is called an 
"embraceo,r. " This is both a state and federal (18 U.S. 
C.A. §§ 1503, 1504) crime, and is commonly included 
under the offense of "obstructing justice". See Obstruct
ing justice. 
Emenda I �mend�/. Amends; something' given in rep
aration for a trespass; or, in old Saxon times, in com
pensation for an injury or crime. 
Emendare /iym�nderiy/. In Saxon law, to make 
amends or satisfaction for any crime or trespass commit
ted; to pay a fine; to be fined. Emendare se, to redeem, 
or ransom one's life, by payment of a weregild. 
Emendatio /em�ndeysh(iy)ow/. In old English law, 
amendment, or correction. The power of amending and 
correcting abuses, according to certain rules and mea
sures. 
In Saxon law, a pecuniary satisfaction for an injury; 
the same as emenda (q. v.). 
Emendatio panis et cerevisire lem�ndeysh(iy)ow pren�s 
et s�r�viz(h)iyiy/. In old English law, the power of 
supervising and correcting the weights and measures of 
bread and ale (assising bread and beer). 
E mera gratia /iy mir� greysh(iy)�/. Out of mere grace 
or favor. 
Emerge I�m ;}rj/. To arise; to come to light. 
Emergency. A sudden unexpected happening; an un
foreseen occurrence or condition; perplexing contingen-

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cy or complication of circumstances; a sudden or unex
pected occasion for action; exigency; pressing necessity. 
Emergency is an unforeseen combination of circum
stances that calls for immediate action without time for 
full deliberation. State v. Perry, 29 Ohio App.2d 33, 278 
N.E.2d 50, 53. See also Emergency doctrine; Sudden 
emergency doctrine. 
Emergency Court of Appeals. Court created during 
World War II to review orders of the Price Control 
Administrator. It was abolished in 1953. This court 
was established again in 1970 under Section 211 of the 
Economic Stabilization Act to handle primarily wage 
and price control matters. 
Emergency doctrine. Under the doctrine variously re
ferred to as the "emergency," "imminent peril," or "sud
den peril" doctrine, when one is confronted with a 
sudden peril requiring instinctive action, he is not, in 
determining his course of action, held to the exercise of 
the same degree of care as when he has time for reflec
tion, and in the event that a driver of a motor vehicle 
suddenly meets with an emergency which naturally 
would overpower the judgment of a reasonably prudent 
and careful driver, so that momentarily he is thereby 
rendered incapable of deliberate and intelligent action, 
and as a result injures a third person, he is not negli
gent, provided he has used due care to avoid meeting 
such an emergency and, after it arises, he exercises such 
care as a reasonably prudent and capable driver would 
use under the unusual circumstances. Sandberg v. 
Spoelstra, 46 Wash.2d 776, 285 P.2d 564, 568. 
In an emergency situation when medical service is 
required for an adult who by virtue of his physical 
condition is incapable of giving consent, or with respect 
to a child, whose parent or other guardian is absent, and 
thus incapable of giving consent, the law implies the 
consent required to administer emergency medical ser
vices. This is a good defense to an action of tort for an 
alleged battery. 
Emergency employment doctrine. A regularly em
ployed servant possesses implied authority to engage an 
assistant to aid in performing a task, within scope of 
servant's duties in case of emergency rendering it abso
lutely necessary to obtain such assistance, and without 
which emergency conditions could not be overcome by 
servant or any of his coemployees in regular service of 
their common master. Hall v. O. C. Whitaker Co., 143 
Tex. 397, 185 S.W.2d 720, 722, 723. 
Emergent year. The epoch or date whence any people 
begin to compute their time. 
Emigrant I em:lgr;mtl. One who leaves his country for 
any reason, with intention to not return, with design to 
reside elsewhere. Compare Im migrant. 
Emigrant agent. One engaged in the business of hiring 
laborers for work outside the country or state. 
Emigration. The act of removing from one country to 
another, with intention to not return. It is to be distin
guished from "expatriation" which means the abandon
ment of one's country and renunciation of one's citizen-
EMISSARY 
ship in it, while emigration denotes merely the removal 
of person and property to another country. The former 
is usually the consequence of the latter. Emigration is 
also sometimes used in reference to the removal from 
one section to another of the same country. See also 
Deportation; Imm igration. 
Emigre. Person forced to emigrate for political reasons. 
See also Deportation. 
Eminence lem:ln:lnsl. An honorary title given to cardi
nals. They were called "illustrissimi" and "reverendissi
mi" until the pontificate of Urban VIII. 
Eminent domain I em:ln:lnt d:lmeyn/. The power to 
take private property for public use by the state, munici
palities, and private persons or corporations authorized 
to exercise functions of public character. Housing Au
thority of Cherokee National of Oklahoma v. Langley, 
Okl., 555 P.2d 1025, 1028. Fifth Amendment, U.S. Con
stitution. 
In the United States, the power of eminent domain is 
founded in both the federal (Fifth Amend.) and state 
constitutions. The Constitution limits the power to tak
ing for a public purpose and prohibits the exercise of the 
power of eminent domain without just compensation to 
the owners of the property which is taken. The process 
of exercising the power of eminent domain is commonly 
referred to as "condemnation", or, "expropriation". 
The right of eminent domain is the right of the state, 
through its regular organization, to reassert, either tem
porarily or permanently, its dominion over any portion 
of the soil of the state on account of public exigency and 
for the public good. Thus, in time of war or insurrec
tion, the proper authorities may possess and hold any 
part of the territory of the state for the common safety; 
and in time of peace the legislature may authorize the 
appropriation of the same to public purposes, such as 
the opening of roads, construction of defenses, or provid
ing channels for trade or travel. Eminent domain is the 
highest and most exact idea of property remaining in 
the government, or in the aggregate body of the people 
in their sovereign capacity. It gives a right to resume 
the possession of the property in the manner directed by 
the constitution and the laws of the state, whenever the 
public interest requires it. 
See also Adequate compensation; Condemnation; Con
structive taking; Damages; Expropriation; Fair market val
ue; Just compensation; Larger parcel; Public use; Tak
ing. 
Expropriation. The term "expropriation" (used e.g. in 
Louisiana) is practically synonymous with the term "em
inent domain". Tennessee Gas Transmission Co. v. Vio
let Trapping Co., La.App., 200 So.2d 428, 433. 
Partial taking. The taking of part of an owner's proper
ty under the laws of eminent domain. Compensation 
must be based on damages or benefits to the remaining 
property, as well as the part taken. See Condemnation. 
Emissary lem:lseriy/. A person sent upon a mission as 
the agent of another; also a secret agent sent to ascer
tain the sentiments and designs of others, and to propa-

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EMISSARY 
gate opinions favorable to his employer. See Ambassa
dor; Diplomatic agent. 
Emission. The discharge, ej ection or throwing out of; 
e.g. a pollutant from a factory or any secretion or other 
matter from the body. 
Emit. To put forth or send out; to issue. "No state shall 
emit bills of credit." Art. 1, § 10, U.S. Const. 
To give forth with authority; to give out or discharge; 
to put into circulation. See Bill (Bill of credit ). 
Emolument / am61yam:mtl. The profit arising from of
fice, employment, or labor; that which is received as a 
compensation for services, or which is annexed to the 
possession of office as salary, fees, and perquisites. Any 
perquisite, advantage, profit, or gain arising from the 
possession of an office. McLean v. United States, 226 
U.S. 374, 38 S.Ct. 122, 124, 57 L.Ed. 260; State ex reI. 
Todd v. Reeves, 196 Wash. 145, 82 P.2d 173, 175. 
Emotion. A strong feeling of hate, love, sorrow and the 
like arising within a person and not as a result, neces
sarily, of conscious activity of the mind. 
Emotional insanity. The species of mental aberration 
produced by a violent excitement of the emotions or 
passions, though the reasoning faculties may remain 
unimpaired. A passion, effecting for a space of time 
complete derangement of accused's intellect, or an im
pulse, which his mind is not able to resist, to do the act. 
Fannon v. Commonwealth, 295 Ky. 817, 175 S.W.2d 531, 
533. See Ins anity; Irresistible impulse. 
Empalement /ampeylmantl. In ancient law, a mode of 
inflicting punishment, by thrusting a sharp pole up the 
fundament. 
Empannel. See Impanel. 
Emparlance. See Imp arlance. 
Emparnours /amparnarz/. L. Fr. Undertakers of suits. 
Emperor. The title of the sovereign ruler of an empire. 
This designation was adopted by the rulers of the Ro
man world after the decay of the republic, and was 
assumed by those who claimed to be their successors in 
the "Holy Roman Empire," as also by Napoleon. The 
sovereigns of Japan and Morocco are often, though with 
little propriety, called emperors. In western speech the 
former sovereigns of Turkey and China were called 
emperors. 
The title "emperor" seems to denote a power and 
dignity superior to that of a "king." It appears to be the 
appropriate style of the executive head of a federal 
government, constructed on the monarchial principle, 
and comprising in its organization several distinct king
doms or other quasi sovereign states; as was the case 
with the German empire from 1871 to 1918. The proper 
meaning of emperor is the chief of a confederation of 
states of which kings are members. In general, an 
emperor is the holder of a sovereignty extending over 
conquered or confederated peoples, a king is ruler of a 
single people. 
524 
Emphasizing facts. A jury instruction is said to empha
size facts which may contain sufficient facts to authorize 
a verdict, but nevertheless some fact or facts are select
ed from the evidence and mentioned in such a way as to 
indicate to the jury that they have especial importance 
when that is not justified. Robinson v. Ross, Mo., 47 
S.W.2d 122, 125. 
Emphyteusis / emfatyuwsas/. In the Roman and civil 
law, a contract by which a landed estate was leased to a 
tenant, either in perpetuity or for a long term of years, 
upon the reservation of an annual rent or canon, and 
upon the condition that the lessee should improve the 
property, by building, cultivating, or otherwise, and with 
a right in the lessee to alien the estate at pleasure or 
pass it to his heirs by descent, and free from any 
revocation, re-entry, or claim of forfeiture on the part of 
the grantor, except for non-payment of the rent. 3 
Bl.Comm. 232. 
The right granted by such a contract (jus emphyteuti
cum, or emphyteuticarium). The real right by which a 
person is entitled to enjoy another's estate as if it were 
his own, and to dispose of its substance, as far as can be 
done without deteriorating it. 
Emphyteuta / emfatyuwta/. In the civil law, the person 
to whom an em phyteusis is granted; the lessee or tenant 
under a contract of emphyteusis. 
Emphyteuticus /emfatyuwtakas/. In the civil law, 
founded on, growing out of, or having the character of, 
an emphyteusis; held under an emphyteusis. 3 Bl. 
Comm. 232. 
Empire. The dominion or jurisdiction of an emperor; 
the region over which the dominion of an emperor 
extends; imperial power; supreme dominion; sovereign 
command. 
Empiric / ampirak/. A practitioner in medicine or sur
gery, who proceeds on experience only, without science 
or legal qualification; a quack. 
Empirical. That which is based on experience, experi
ment, or observation. 
Emplazamiento /emplasimyentow/. In Spanish law, a 
summons or citation, issued by authority of a judge, 
requiring the person to whom it is addressed to appear 
before the tribunal at a designated day and hour. 
Emplead. To indict; to prefer a charge against; to 
accuse. 
Emploi /omplwa!. In French law, equitable conversion. 
When property covered by the regime dotal is sold, the 
proceeds of the sale must be reinvested for the benefit of 
the wife. It is the duty of the purchaser to see that the 
price is so reinvested. 
Employ. To engage in one's service; to hire; to use as 
an agent or substitute in transacting business; to com
mission and intrust with the performance of certain acts 
or functions or with the management of one's affairs; 
and, when used in respect to a servant or hired laborer, 
the term is equivalent to hiring, which implies a request 
and a contract for a compensation. Tenne ssee Coal Iron

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525 
& R. Co. v. Muscoda Local No. 123, Ala., 321 U.S. 590, 64 
S.Ct. 698, 703, 705, 88 L.Ed. 949. To make use of, to 
keep at work, to entrust with some duty. See also 
Employment. 
Employed. Performing work under an employer-em
ployee relationship. Term signifies both the act of doing 
a thing and the being under contract or orders to do it. 
To give employment to; to have employment. 
Employee. A person in the service of another under any 
contract of hire, express or implied, oral or written, 
where the employer has the power or right to control 
and direct the employee in the material details of how 
the work is to be performed. Riverbend Country Club v. 
Patterson, Tex.Civ.App., 399 S.W.2d 382, 383. One who 
works for an employer; a person working for salary or 
wages. 
Generally, when person for whom services are per
formed has right to control and direct individual who 
performs services not only as to result to be accom
plished by work but also as to details and means by 
which result is accomplished, individual subject to di
rection is an "employee". 
"Servant" is synonymous with "employee". Tennes
see Valley Appliances v. Rowden, 24 Tenn.App. 487, 146 
S.W.2d 845, 848. However, "employee" must be distin
guished from "independent contractor," "officer," "vice
principal," "agent," etc. 
The term is often specially defined by statutes (e.g. 
workers' compensation acts; Fair Labor Standards Act), 
and whether one is an employee or not within a particu
lar statute will depend upon facts and circumstances. 
In corporation law, "employee" includes an officer but 
not a director. A director may accept duties that make 
him also an employee. Rev. Model Bus.Corp. Act, 
§ 1.40. 
For Executive employees, see that title. See also Bor
rowed employee; Fellow servant; Independent contractor; 
Servant. 
Employee pro hac vice. See Borrowed employee. 
Employee Retirement Income Security Act. See E.A.I. 
S.A. 
Employee Stock Ownership Plan (ESOP). A type of 
qualified profit sharing plan that invests in securities of 
the employer. Such plans acquire shares of the employ
er-corporation for the benefit of employees usually 
through contributions of the employer to the plan. In a 
noncontributory ESOP, the employer usually contrib
utes its shares to a trust and receives a deduction for the 
fair market value of such stock. Generally, the employ
ee recognizes no income until the stock is sold after its 
distribution to him or her upon retirement or other 
separation from service. Special tax benefits are provid
ed to companies with such benefits. See also Profit
sharing plan. 
Employer. One who employs the services of others; one 
for whom employees work and who pays their wages or 
salaries. The correlative of "employee." See also Mas
ter. Compare Independent contractor. 
EMPRESARIOS 
Employers' liability acts. Statutes (e.g. , Federal Em
ployer's Liability Act; Workers' Compensation Acts) de
fining or limiting the occasions and the extent to which 
public and private employers shall be liable in damages 
(compensation) for injuries to their employees occurring 
in the course of their employment, and particularly 
abolishing the common-law rule that the employer is not 
liable if the injury is caused by the fault or negligence of 
a fellow servant and also the defenses of contributory 
negligence and assumption of risk. See also Federal 
Employer's Liability Act; Ins urance; Workers' Compensa
tion Acts. 
Employment. Act of employing or state of being em
ployed; that which engages or occupies; that which 
consumes time or attention; also an occupation, profes
sion, trade, post or business. Hinton v. Columbia River 
Packers' Ass'n, C.C.A.Or., 117 F.2d 310. Includes the 
doing of the work and a reasonable margin of time and 
space required in passing to and from the place where 
the work is to be done. California Casualty Indemnity 
Exchange v. Industrial Accident Commission, 21 Ca1.2d 
751, 135 P.2d 158, 161. Activity in which person en
gages or is employed; normally, on a day-to-day basis. 
See also Casual employment; Course of employment; 
Seasonal employment. 
Discrimination. See Discrimination; Disparate treatment. 
Employment agency. Business operated by a person, 
firm or corporation engaged in procuring, for a fee, 
employment for others and employees for employers. 
The fee may be paid by either the employer or the 
employee, depending upon the terms of the agreement. 
See also Finder. 
Employment at will. This doctrine provides that, ab
sent express agreement to contrary, either employer or 
employee may terminate their relationship at any time, 
for any reason. Berry v. Doctor's Health Facilities, 
Tex.App.-Dallas, 715 S.W.2d 60, 61. Such employment 
relationship is one which has no specific duration, and 
such a relationship may be terminated at will by either 
the employer or the employee, for or without cause. 
Criscione v. Sears, Roebuck and Co., 66 IlLApp.3d 664, 
23 IlL Dec. 455, 384 N.E.2d 91, 95. See also Whistle 
blower acts; Wrongful discharge. 
Employment contract. An agreement or contract be
tween employer and employee in which the terms and 
conditions of one's employment are provided. 
Emporium / ;)mporiy;)m/. A place for wholesale trade in 
commodities carried by sea. The name is sometimes 
applied to a seaport town, but it properly signifies only a 
particular place in such a town. 
Empower. A grant of authority rather than a command 
of its exercise. In re Whiteman's Will, 268 App.Div. 
591, 52 N.Y.S.2d 723, 725. See Power. 
Empresarios /empreysariyows/. In Mexican law, un
dertakers or promoters of extensive enterprises, aided by 
concessions or monopolistic grants from government; 
particularly, persons receiving extensive land grants in 
consideration of their bringing emigrants into the coun-

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EMPRESARIOS 
try and settling them on the lands, with a view of 
increasing the population and developing the resources 
of the country. U. S. v. Maxwell Land-Grant Co., 121 
U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949. 
Emprestido lempreystiyoow/. In Spanish law, a loan. 
Something lent to the borrower at his request. 
Emptio lem(p)sh(iy)ow/. In the Roman and civil law, 
the act of buying; a purchase. 
Emptio bonorum lem(p)sh(iy)ow b;mor;:)m/. A species of 
forced assignment for the benefit of creditors; being a 
public sale of an insolvent debtor's estate whereby the 
purchaser succeeded to all his property, rights, and 
claims, and became responsible for his debts and liabili
ties to the extent of a quota fixed before the transfer. 
Emptio et venditio lem(p)sh(iy)ow et v;:)ndish(iy)ow/. 
Purchase and sale; sometimes translated "emption and 
vendition." The name of the contract of sale in the 
Roman law. Sometimes made a compound word, emp
tio-venditio. 
Emptio rei speratre lem(p)sh(iy)ow riyay sp;:)reytiy/. A 
purchase in the hope of an uncertain future profit; the 
purchase of a thing not yet in existence or not yet in the 
possession of the seller, as, the cast of a net or a crop to 
be grown, and the price of which is to depend on the 
actual gain. On the other hand, if the price is fixed and 
not subject to fluctuation, but is to be paid whether the 
gain be greater or less, it is called em ptio spei. 
Emptor lem(p)t;:)r/. Lat. A buyer or purchaser. Used 
in the maxim "caveat emptor," let the buyer beware; 
i.e., the buyer of an article must be on his guard and 
take the risks of his purchase. See Caveat emptor. 
Emptor emit quam minimo potest, venditor vendit 
quam maximo potest lem(p)t;:)r em;:)t kwrem min;:)mow 
powt;:)st, vend;:)t;:)r vend;:)t kwrem mreks;:)mow powt;:)st/. 
The buyer purchases for the lowest price he can; the 
seller sells for the highest price he can. 
Empty chair doctrine. Under this doctrine, a trial 
justice may charge a jury that it may infer from liti
gant's unexplained failure to produce an available wit
ness who would be expected to give material testimony 
in litigant's behalf that witness, had he occupied empty 
chair, would have testified adversely to litigant. Myles 
v. Women and Infants Hosp. of Rhode Island, R.I., 504 
A.2d 452, 454. 
Emtio lem(p)sh(iy)ow/. In the civil law, purchase. This 
form of the word is used in the Digests and Code. See 
Emptio. 
Emtor lem(p)t;:)r/. In the civil law, a buyer or purchaser; 
the buyer. 
Emtrix lem(p)tr;:)ks/. In the civil law, a female purchas
er; the purchaser. 
Enable. To give power to do something; to make able. 
In the case of a person under disability as to dealing 
with another, "enable" has the primary meaning of 
removing that disability; not of conferring a compulsory 
power as against that other. 
526 
Enabling Act. See Enabling statute. 
Enabling clause. That portion of a statute or constitu
tion which gives to governmental officials the power and 
authority to put it into effect and to enforce such. See 
Enacting clause; Enforcement powers. 
Enabling power. When the donor of a power, who is 
the owner of the estate, confers upon persons not seised 
of the fee the right of creating interests to take effect 
out of it, which could not be done by the donee of the 
power unless by such authority, this is called an "en
abling power." See also Power of appointment. 
Enabling statute. Term applied to any statute enabling 
persons or corporations, or agencies to do what before 
they could not. It is applied to statutes which confer 
new powers. See also Enabling clause. 
The English Act of 32 Henry VIII, c. 28, by which 
tenants in tail, husbands seised in right of their wives, 
and others were empowered to make leases for their 
lives or for twenty-one years, which they could not do 
before. 2 Bl.Comm. 319. 
Enach. In Saxon law, the satisfaction for a crime; the 
recompense for a fault. 
Enact. To establish by law; to perform or effect; to 
decree. The common introductory formula in making 
statutory laws is, "Be it enacted." See Enacting clause. 
Enacting clause. A clause at the beginning of a statute 
which states the authority by which it is made. That 
part of a statute which declares its enactment and 
serves to identify it as an act of legislation proceeding 
from the proper legislative authority. Various formulas 
are used for this clause, such as "Be it enacted by the 
people of the state of Illinois represented in general 
assembly," "Be it enacted by the Senate and House of 
Representatives of the United States of America in 
Congress assembled," "The general assembly do enact," 
etc. See also Enabling clause; Preamble. 
Enactment. The method or process by which a bill in 
the Legislature becomes a law. 
Enajenaci6n I eynaheynasyown/. In Spanish and Mexi
can law, alienation; transfer of property. The act by 
which the property in a thing, by lucrative title, is 
transferred, as a donation; or by onerous title, as by sale 
or barter. In a more extended sense, the term compris
es also the contracts of emphyteusis, pledge, and mort
gage, and even the creation of a servitude upon an 
estate. 
En arere len ;:)rir/. L. Fr. In time past. 
En autre droit I;:)n owtr;:) droyt/on owtr;:) dr(w)O/. In the 
right of another. See Autre droit. 
En banc I;:)n brelJk/on bOlJk/. L. Fr. In the bench. Full 
bench. Refers to a session where the entire membership 
of the court will participate in the decision rather than 
the regular quorum. In other countries, it is common 
for a court to have more members than are usually 
necessary to hear an appeal. In the United States, the 
Circuit Courts of Appeal usually sit in panels of judges 
but for important cases may expand the bench to a

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527 
larger number, when they are said to be sitting en bane. 
See Fed.R.App.P. 35. Similarly, only one of the judges 
of the U.S. Tax Court will typically hear and decide on a 
tax controversy. However, when the issues involved are 
unusually novel or of wide impact, the case will be 
heard and decided by the full court sitting en bane. An 
appellate court in which all the judges who are neces
sary for a quorum are sitting as contrasted with a 
session of such court presided over by a single justice or 
panel of justices. 
En bloc Ion bl6k/. As a unit; as a whole. 
Enbrever I;mbriyv�r/. L. Fr. To write down in short; 
to abbreviate, or, in old language, imbreviate; to put 
into a schedule. 
En brevet Ion br�vey/. In French law, an aete is said to 
be en brevet when a copy of it has not been recorded by 
the notary who drew it. 
Enceinte lonsrentl. Pregnant. See Pregnancy. 
Encheson I �nchiyz�nl . The occasion, cause, or reason 
for which anything is done. 
Enclose. See In close. 
Enclosure I�IJkI6wzh�r/. See Inclosure. 
Encomienda lenkowmiyend�/. In Spanish law, a grant 
from the crown to a private person of a certain portion 
of territory in the Spanish colonies, together with the 
concession of a certain number of the native inhab
itants, on the feudal principle of commendation. Also a 
royal grant of privileges to the military orders of Spain. 
Encourage. In criminal law, to instigate; to incite to 
action; to give courage to; to inspirit; to embolden; to 
raise confidence; to make confident; to help; to for
ward; to advise. See Aid and abet. 
Encroach. To enter by gradual steps or stealth into the 
possessions or rights of another; to trespass or intrude. 
To gain or intrude unlawfully upon the lands, property, 
or authority of another. 
Encroachment. An illegal intrusion in a highway or 
navigable river, with or without obstruction. Hartford 
Elec. Light Co. v. Water Resources Commission, 162 
Conn. 89, 291 A.2d 721, 730. An encroachment upon a 
street or highway is a fixture, such as a wall or fence, 
which illegally intrudes into or invades the highway or 
incloses a portion of it, diminishing its width or area, 
but without closing it to public travel. 
In the law of easements, where the owner of an 
easement alters the dominant tenement, so as to impose 
an additional restriction or burden on the servient tene
ment, he is said to commit an encroachment. 
Encumbrance. Any right to, or interest in, land which 
may subsist in another to diminution of its value, but 
consistent with the passing of the fee by conveyance. 
Knudson v. Weeks, D.C.Okl., 394 F.Supp. 963, 976. A 
claim, lien, charge, or liability attached to and binding 
real property; e.g. a mortgage; judgment lien; mechan
ics' lien; lease; security interest; easement or right of 
ENDOWMENT 
way; accrued and unpaid taxes. If the liability relates 
to a particular asset, the asset is encumbered. 
While encumbrances usually relate to real property, a 
purchaser of personal property is provided with a war
ranty of title against unknown encumbrances. U.C.C. 
§ 2-312. 
Encumbrancer. A lien or mortgage holder; one who 
has a legal claim against an estate. 
End. Ob ject; intent; result; goal; termination point. 
Things are construed according to the end. 
Endeavor. To exert physical and intellectual strength 
toward the attainment of an object. A systematic or 
continuous effort. Thompson v. Corbin, Tex.Civ.App., 
137 S.W.2d 157, 159. As used in statute relating to 
corruptly endeavoring to influence, obstruct, or impede 
due administration of justice, describes· any effort or 
assay to accomplish evil purpose the statute was enacted 
to prevent. U.S. v. Silverman, C.A.Fla., 745 F.2d 1386, 
1393. 
En declaration de simulation Ion deklarasy6wn d� 
sim(y)�lasy6wn/. A form of action used in Louisiana. 
Its object is to have a contract declared judicially a 
simulation and a nullity, to remove a cloud from the 
title, and to bring back, for any legal purpose, the thing 
sold to the estate of the true owner. 
En demeure Ion d�myur/. In default. Used in Louisi
ana of a debtor who fails to pay on demand according to 
the terms of his obligation. 
Endenzie, or endenizen I �nden�z�n/. To make free; to 
enfranchise. 
End lines. In mining law, the end lines of a claim, as 
platted or laid down on the ground, are those which 
mark its boundaries on the shorter dimension, where it 
crosses the vein, while the "side lines" are those which 
mark its longer dimension, where it follows the course of 
the vein. But with reference to extra-lateral rights, if 
the claim as a whole crosses the vein, instead of follow
ing its course, the end lines will become side lines and 
vice versa. 
Endocarditis I endowkardayt�s/. An inflammation of 
the living membrane of the heart. 
End of will. Point in will at which dispositive provisions 
terminate. In re Coyne's Estate, 349 Pa. 331, 37 A.2d 
509, 510. Such is normally followed by attestation 
clauses. 
Endorsement. See In dorsement. 
Endorsee. See In dorsee. 
Endorser. See Indorser. 
Endow. To give a dower; to bestow upon; to make 
pecuniary provision for. 
Endowment. Transfer, generally as a gift, of money or 
property to an institution for a particular purpose such 
as a gift to a hospital for medical research. The act of 
establishing a fund, or permanent pecuniary provision, 
for the maintenance of a public institution, charity,

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ENDOWMENT 
college, etc. The bestowment of money as a permanent 
fund, the income of which is to be used in the adminis
tration of a proposed work. In re Hendricks' Will, 1 
Misc.2d 904, 148 N.Y.S.2d 245, 253. 
The assignment of dower; the setting off a woman's 
dower. 2 Bl.Comm. 135. 
Endowment insurance. See Insurance. 
Endowment policy. See Policy of insurance (Endowment 
policy). 
Endurance. State or capability of lasting; continuance; 
or act or instance of bearing or suffering. A continuing 
or the power of continuing under pain, hardship, or 
distress without being overcome. Sufferance; as beyond 
endurance. State ex reI. Adams v. Crowder, 46 N.M. 20, 
120 P.2d 428, 431. 
Enelow-Ettelson Rule. This Rule provides that an 
order staying federal court proceedings pending the de
termination of an equitable defense is an injunction 
appealable under 28 U.S.C.A. § 1292(a)(1) if the proceed
ing stayed was an action that could have been main
tained as an action at law before the merger of law and 
equity. Dias v. Bank of Hawaii, C.A.H awaii, 764 F.2d 
1292, 1294. 
Enemy. Adversary; e.g. military adversary. 
Enemy alien. An alien residing or traveling in a coun
try which is at war with the country of which he is a 
national. Enemy aliens may be interned or restricted. 
Enemy belligerent. Citizens who associate themselves 
with the military arm of an enemy government and 
enter the United States bent on hostile acts. Ex parte 
Quirin, App.D.C., 317 U.S. 1, 63 S.Ct. 2, 15, 87 L.Ed. 3. 
Enemy' s property. In international law, and particular
ly in the usage of prize courts, this term designates any 
property which is engaged or used in illegal intercourse 
with the public enemy, whether belonging to an ally or a 
citizen, as the illegal traffic stamps it with the hostile 
character and attaches to it all the penal consequences. 
Public enemy. A nation at war with the United States; 
also every citizen or subject of such nation. Term 
however does not generally include robbers, thieves, 
private depredators, or riotous mobs. The term has 
acquired, in the vocabulary of journalism and civic in
dignation, a more extended meaning, denoting a particu
larly notorious offender against the criminal laws, espe
cially one who seems more or less immune from success
ful prosecution, or a social, health or economic condition 
or problem affecting the public at large, which is diffi
cult to abate or control. 
Energy, Department of. The Department of Energy 
(DOE) provides the framework for a comprehensive and 
balanced national energy plan through the coordination 
and administration of the energy functions of the Feder
al Government. The Department is responsible for the 
research, development, and demonstration of energy 
technology; the marketing of Federal power; energy 
conservation; the nuclear weapons program; regulation 
of energy production and use; pricing and allocation; 
528 
and a central energy data collection and analysis pro
gram. 
En eschange il covient que les estates soient egales. 
In an exchange it is desirable that the estates be equal. 
En fait Ion fey/. Fr. In fact; in deed; actually. 
Enfeoff lenfiyf/:mfef/. To invest with an estate by feoff
ment. To make a gift of any corporeal hereditaments to 
another. See Feoffment. 
Enfeoffment I :mfiyfm;}nt/. The act of investing with 
any dignity or possession; also the instrument or deed 
by which a person is invested with possessions. 
Enforce. To put into execution; to cause to take effect; 
to make effective; as, to enforce a particular law, a writ, 
a judgment, or the collection of a debt or fine; to compel 
obedience to. See e.g. Attachment; Execution; Garnish
ment. 
Enforcement. The act of putting something such as a 
law into effect; the execution of a law; the carrying out 
of a mandate or command. See also Enforcement pow
ers. 
Enforcement of Foreign Judgments Act. One of the 
uniform laws adopted by several states which gives the 
holder of a foreign judgment essentially the same rights 
to levy and execution on his judgment as the holder of a 
domestic judgment. The Act defines a "foreign judg
ment" as any judgment, decree, or order of a court of 
the United States or of any other court which is entitled 
to full faith and credit in the state. See also Full faith 
and credit clause. 
Enforcement powers. The 13th, 14th, 15th, 19th, 23rd, 
24th, and 26th Amendments to U.S.Const. each contain 
clauses granting to Congress the power to enforce by 
appropriate legislation the provisions of such Amend
ments. 
Enfranchisement. The act of making free (as from 
slavery); giving a franchise or freedom to; investiture 
with privileges or capacities of freedom, or municipal or 
political liberty. Conferring the privilege of voting upon 
classes of persons who have not previously possessed 
such. See also Franchise. 
Enfranchisement of copyholds. In English law, the 
conversion of copyhold into freehold tenure, by a convey
ance of the fee-simple of the property from the lord of 
the manor to the copyholder, or by a release from the 
lord of all seigniorial rights, etc., which destroys the 
customary descent, and also all rights and privileges 
annexed to the copyholder's estate. 
Engage. To employ or involve one's self; to take part in; 
to embark on. 
Engaged in commerce. To be "engaged in commerce" 
for purposes of Fair Labor Standards Act and Federal 
Employers' Liability Act, an employee must be actually 
engaged in the movement of commerce or the services 
he performs must be so closely related thereto as to be 
for all practical purposes an essential part thereof, rath
er than an isolated local activity. McLeod v. Threlkeld,

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529 
Tex., 319 U.S. 491, 63 S.Ct. 1248, 1251, 1252, 87 L.Ed. 
1538; Boutell v. Walling, C.C.A.Mich., 148 F.2d 329, 331. 
See also Commerce. 
Engaged in employment. To be rendering service for 
employer under terms of employment, and is more than 
being merely hired to commence work. Walling v. Con
sumers Co., C.C.A.Ill., 149 F.2d 626, 629. 
Engagement. A contract or agreement characterized by 
exchange of mutual promises; e.g. engagement to mar
ry. 
Engagement to marry. A promise or undertaking by a 
man to marry a woman, for breach of which, formerly, 
there was a cause of action in many jurisdictions. These 
actions today have lost favor and are not available in 
most states. Such actions were called heart balm suits. 
See Heart balm statutes. 
Engender. To cause, to bring about, to excite, to occa
sion, to call forth. 
Englesbire lil]gl;}shriy/. A law was made by Canute, for 
the preservation of his Danes, that, when a man was 
killed, the hundred or town should be liable to be 
amerced, unless it could be proved that the person killed 
was an Englishman. This proof was called "Engle
shire." 
En gros Ion grow I 01] 0 I . Fr. In gross; total; by whole
sale. 
Engrossment. To copy in final draft. Drafting of reso
lution or bill just prior to final vote upon same in 
legislature. Buying up or securing enough of a commod
ity to obtain a monopoly, so as to resell at higher price; 
i.e. to corner market in such commodity. Preparing 
deed for execution. 
Enhanced. Made greater; e.g. in value or attractive
ness. This word, taken in an unqualified sense, is 
synonymous with "increased," and comprehends any 
increase of value, however caused or arising. 
Enheritance. L. Fr. Inheritance. 
Enitia pars I ;}nish(iy);} parz/. The share of the eldest. 
A term of the English law descriptive of the lot or share 
chosen by the eldest of coparceners when they make a 
voluntary partition. The first choice (primer election) 
belongs to the eldest. 
Enitia pars semper prreferenda est propter privilegi
um retatis I ;}nish(iy);} parz semp;}r pref;}rend;} est propt;}r 
priv;}liyjiy;}m ;}teyt;}s/. The part of the elder sister is 
always to be preferred on account of the privilege of age. 
Enjoin. To require; command; positively direct. To 
require a person, by writ of injunction, to perform, or to 
abstain or desist from, some act. See Injunction; Re
strainin g order. 
Enjoy. To have, possess, and use with satisfaction; to 
occupy or have benefit of. 
Enjoyment. The exercise of a right; the possession and 
fruition of a right, privilege or incorporeal heredit
ament. Comfort, consolation, contentment, ease, happi
ness, pleasure and satisfaction. Such includes the bene-
ENPLEET 
ficial use, interest and purpose to which property may 
be put, and implies right to profits and income there
from. In re Lafayette Houses, City of New York, 220 
N.Y.S.2d 109, 112. 
Adverse enjoyment. The possession or exercise of an 
easement under a claim of right against the owner of 
the land out of which such easement is derived. 
Quiet enjoyment. Covenant for. See Covenant. 
En juicio len huwiys(i)yow/. Span. Judicially; in a 
court of law; in a suit at law. 
Enlarge. To make larger; to increase; to extend a time 
limit; to grant further time. Also to set at liberty one 
who has been imprisoned or in custody. 
Enlargement of time. Extension of time allowed for 
performing an act that is otherwise to be done within 
time specified by court rule or order. See, e.g. , Fed.R. 
Civil P. 6(b). 
Enlarger restate I ;}nlar j;}r l;}steyt/. A species of re
lease which inures by way of enlarging an estate, and 
consists of a conveyance of the ulterior interest to the 
particular tenant; as if there be tenant for life or years, 
remainder to another in fee, and he in remainder releas
es all his right to the particular tenant and his heirs, 
this gives him the estate in fee. 
Enlarging. Extending, expanding, or making more com
prehensive. 
Enlistment. Voluntary entry into one of the armed 
services other than as a commissioned officer. "En
listee" voluntarily submits himself to military authority 
by virtue of his enlistment while "inductee" does not. 
Even v. Clifford, D.C.Cal., 287 F.Supp. 334, 338. 
En masse Ion mres;omas/. Fr. In a mass; in a lump; 
in bulk; at wholesale. 
En mort mayne I;}n mort meyn/. L. Fr. In a dead 
hand; in mortmain. 
Enoc Arden doctrine. The legal principles involved 
when a person leaves his spouse under such circum
stances and for such a period of time as to make the 
other spouse believe that he is dead with the result that 
the remaining spouse marries another only to discover 
later the return of her first husband. Generally, in 
most states, it is safer for the remaining spouse to secure 
a divorce before marrying again. 
Enormia I ;}normiy;}I . In old practice and pleading, un
lawful or wrongful acts; wrongs. Et alia enormia, and 
other wrongs. This phrase constantly occurs in the old 
writs and declarations of trespass. 
Enormous. Aggravated; excessively large. Written 
"enormious," in some of the old books. Enormious is 
where a thing is made without a rule or against law. 
En owel main I;}n aw;}l meyn/. L. Fr. In equal hand. 
The word "owel" occurs also in the phrase "owelty of 
partition." 
Enpleet I;}npliyt/. Ancient for implead.

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ENQUETE, OR ENQUEST 
Enquete, or enquest I01Jket/�1Jkwest/. In canon law, an 
examination of witnesses, taken down in writing, by or 
before an authorized judge, for the purpose of gathering 
testimony to be used on a trial. 
En recouvrement Ion reykuwvr�m6n/. Fr. In French 
law, an expression employed to denote that an indorse
ment made in favor of a person does not transfer to him 
the property in the bill of exchange, but merely consti
tutes an authorit.y to such person to recover the amount 
of the bill. 
Enregistrement lonreyzhistr�m6n/. In French law, reg
istration. A formality which consists in inscribing on a 
register, specially kept for the purpose by the govern
ment, a summary analysis of certain deeds and doc
uments. At the same time that such analysis is in
scribed upon the register, the clerk places upon the deed 
a memorandum indicating the date upon which it was 
registered, and at the side of such memorandum an 
impression is made with a stamp. 
Enroll. To register; to record; to enter on the rolls of a 
court; to transcribe. 
Enrolled. Registered; recorded. Generally speaking, 
terms "registered" and "enrolled" are used to distin
guish certificates granted to two classes of vessels; regis
try is for purpose of declaring nationality of vessel 
engaged in foreign trade, and enrollment evidences na
tional character of a vessel engaged in coasting trade or 
home traffic. R. C. Craig Ltd. v. Ships of the Sea Inc., 
D.C.Ga., 401 F.Supp. 1051, 1056. 
Enrolled hill. The final copy of a bill or joint resolution 
which has passed both houses of a legislature and is 
ready for signature. In legislative practice, a bill which 
has been duly introduced, finally passed by both houses, 
signed by the proper officers of each, approved by the 
governor (or President) and filed by the secretary of 
state. 
Enrolled bill rule. Under "enrolled bill rule" it is 
conclusively presumed that statute, as authenticated 
and deposited in Secretary of State's office, is precisely 
same as enacted by Legislature and courts will not go 
behind enrolled bill. Nueces County v. King, Tex.Civ. 
App., 350 S.W.2d 385, 387. Under this rule, once an 
election which is had on question of adoption of statute 
is sanctioned by law and is held, it is then too late to 
question the steps or legal procedure by which the 
measure got on the ballot. 
Enrollment. Act of recording, enrolling, or registering. 
Enrollment of vessels. The recording and certification 
of vessels employed in coastwise or inland navigation; 
as distinguished from the "registration" of vessels em
ployed in foreign commerce. 
En route Ion ruwt/. Fr. On the way; in the course of a 
voyage or journey; in course of transportation. 
Enschedule I �nskej�l/. To insert in a list, account, or 
writing. 
Enseal I �nsiyl/. To seal. Ensealing is still used as a 
formal word in conveyancing. 
530 
Enserver lens�rv�r/. L. Fr. To make subject to a 
service or servitude. 
Ens legis I enz liyj�s/. L. Lat. A creature of the law; an 
artificial being, as contrasted with a natural person. 
Applied to corporations, considered as deriving their 
existence entirely from the law. 
Ensue I�ns(y)uw /. To follow after; to follow in order or 
train of events. 
Entail, v. To settle or limit the succession to real proper
ty; to create an estate tail. 
Entail, n. A fee abridged or limited to the issue, or 
certain classes of issue, instead of descending to all the 
heirs. 
Break or bar an entail. To free an estate from the 
limitations imposed by an entail and permit its free 
disposition, anciently by means of a fine or common 
recovery, but later by deed in which the tenant and next 
heir join. 
Quasi entail. An estate pur autre vie may be granted, 
not only to a man and his heirs, but to a man and the 
heirs of his body, which is termed a "quasi entail;" the 
interest so granted not being properly an estate-tail (for 
the statute De Donis applies only where the subject of 
the entail is an estate of inheritance), but yet so far in 
the nature of an estate-tail that it will go to the heir of 
the body as special occupant during the life of the cestui 
que vie, in the same manner as an estate of inheritance 
would descend, if limited to the grantee and the heirs of 
his body. 
Entailed. Settled or limited to specified heirs, or in tail. 
Entailed money. Money directed to be invested in real
ty to be entailed. 
Entailment. An interference with and curtailment of 
the. ordinary rules pertaining to devolution by inheri
tance; a limitation and direction by which property is to 
descend different from the course which it would take if 
the creator of the entailment, grantor or testator, had 
been content that the estate should devolve in regular 
and general succession to heirs at law in the statutory 
order of precedence and sequence. 
Entencion I�ntensh �n/. In old English law, the plain
tiffs count or declaration. 
Entendment. The old form of intendment (q. v.) derived 
directly from the French, and used to denote the true 
meaning or signification of a word or sentence; that is, 
the understanding or construction of law. 
Enter. To form a constituent part; to become a part or 
partaker; to impenetrate; share or mix with, as, tin 
"enters" into the composition of pewter. Bedford v. 
Colorado Fuel & Iron Corporation, 102 Colo. 538, 81 P.2d 
752, 755. To go or come into a place or condition; to 
make or effect an entrance; to cause to go into or be 
received into. Hancock v. State, Tex.Cr.App., 363 
S.W.2d 273, 275. 
In the law of real property, to go upon land for the 
purpose of taking possession of it. In strict usage, the

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531 
entering is preliminary to the taking possession but in 
common parlance the entry is now merged in the taking 
possession. See Entry. 
To place anything before a court, or upon or among 
the records, in a formal and regular manner, and usual
ly in writing; as to "enter an appearance," to "enter a 
judgment." In this sense the word is nearly equivalent 
to setting down formally in writing, in either a full or 
abridged form. See Appearance; Docket; Entering judg
ments; Entry. 
Enterceur IEmt;}rsyu(w;})r/. L. Fr. A party challenging 
(claiming) goods; he who has placed them in the hands 
of a third person. 
Entering. Generally synonymous with "recording". In 
re Labb, D.C.N.Y., 42 F.Supp. 542, 544. 
Entering judgments. The formal entry of the judgment 
on the rolls or records (e.g. civil docket) of the court, 
which is necessary before bringing an appeal or an 
action on the judgment. The entering of judgment is a 
ministerial act performed by the clerk of court by means 
of which permanent evidence of judicial act in rendering 
judgment is made a record of the court. Knox v. Long, 
152 Tex. 291, 257 S.W.2d 289, 291. Under some statutes 
or court rules, the entering consists merely in the filing 
of a judgment with the clerk, while under others the 
entry of a judgment consists in the recording of it in the 
judgment book or civil docket. Fed.R.Civil P. 55, 58, 79. 
The "entry" of a judgment consists in recording of it 
in the judgment book, and there can be no record of a 
judgment until so entered. Wilson v. Los Angeles Coun
ty Emp. Ass'n, 127 Cal.App.2d 285, 273 P.2d 824, 828. 
Entry of judgment differs from rendition of judgment. 
"Rendition" of a judgment is the judicial act of the court 
in pronouncing the sentence of the law upon the facts in 
controversy. The "entry" is a ministerial act, which 
consists in entering upon the record a statement of the 
final conclusion reached by the court in the matter, thus 
furnishing external and incontestable evidence of the 
sentence given, and designed to stand as a perpetual 
memorial of its action. 
Enterprise. A business venture or undertaking. Wil
liam Buchanan Foundation v. Shepperd, Tex.Civ.App., 
283 S.W.2d 325, 333. 
As used in the anti-racketeering statute (RICO), it 
includes any individual, partnership, corporation, associ
ation, or other legal entity, and any union or group of 
individuals associated in fact although not a legal entity. 
18 U.S.C.A. § 1961(4). Additionally, it must be an ongo
ing organization, and an entity separate from the pat
tern of activity in which it engages. Town of Kearny v. 
Hudson Meadows Urban Renewal Corp., D.C.N.J., 648 
F.Supp. 1412, 1416. See also RI CO laws. 
To find an "enterprise" under the Fair Labor Stan
dards Act, there must be related activities, unified oper
ation or common control, and common business purpose. 
Brennan v. Arnheim & Neely, Inc., U.S.Pa., 410 U.S. 
ENTIRE CONTROVERSY DOCTRINE 
512, 93 S.Ct. 1138, 1142, 35 L.Ed.2d 463. See 29 U.S. 
C.A. § 203(r). 
See also Common enterprise; Joint enterprise. 
Enterprise liability. In position of liability upon each 
member in industry who manufactures or produces 
product which causes injury or harm to a consumer and 
apportions liability of each member of industry by refer
ence to that member's share of market for product. 
Liability-Namn v. Charles E. Frosst & Co. Inc., 178 
N.J. Super. 19, 427 A.2d 1121, 1129. Such theory (also 
known as "industry wide liability), shifts responsibility 
to industry for causing injury, because of concert of 
action by manufacturers through their trade association 
or their collective action, where specific injury-causing 
product cannot be identified. Mulcahy v. Eli Lilly & 
Co., Iowa, 386 N.W.2d 67, 72. A defendant may excul
pate itself by proving it did not manufacture the particu
lar product at issue. Shackil v. Lederle Laboratories, 
App.Div., 219 N.J.Super. 601, 530 A.2d 1287, 1299. 
Term also refers to criminal liability imposed on a 
corporation, partnership, unincorporated association, or 
other artificial "person." See e.g., Model Penal Code 
§ 2.07. 
Entertainment expenses. Such expenses are deductible 
only if they are directly related or associated with busi
ness. Various restrictions and documentation require
ments have been imposed by the Internal Revenue Code 
and Regulations upon the deductibility of entertainment 
expenses to prevent abuses. 
Entice. To wrongfully solicit, persuade, procure, allure, 
attract, draw by blandishment, coax or seduce. To lure, 
induce, tempt, incite, or persuade a person to do a thing. 
Berger v. Levy, 5 Cal.App.2d 544, 43 P.2d 610, 611. 
Enticement of a child is inviting, persuading or attempt
ing to persuade a child to enter any vehicle, building, 
room or secluded place with intent to commit an unlaw
ful sexual act upon or with the person of said child. 
Entire. Whole; without division, separation, or diminu
tion; unmingled; complete in all its parts; not partici
pated in by others. 
Entire act. The words "entire act" as used in the rule of 
statutory construction that it is the duty of the court to 
examine the entire act means the caption, the body of 
the act, and the emergency clause. Anderson v. Penix, 
138 Tex. 596, 161 S.W.2d 455, 459. 
Entire balance of my estate. The residue. 
Entire blood. Relations of the "entire blood" are those 
derived not only from the same ancestor, but from the 
same couple of ancestors. In re Skidmore's Estate, 148 
Misc. 569, 266 N.Y.S. 312. 
Entire contract. See Contract. 
Entire controversy doctrine. Doctrine requires that a 
party who has elected to hold back from first proceeding 
a related component of the controversy among the par
ties be barred from thereafter raising it in a subsequent 
proceeding. Wm. Blanchard Co. v. Beach Concrete Co., 
Inc., 150 N.J. Super. 277, 375 A.2d 675, 683. Under this

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ENTIRE CONTROVERSY DOCTRINE 
doctrine, "entire controversy," rather than its constitu
ent causes of action, is the unit of litigation and joinder 
of all such causes of action, is compulsory under penalty 
of forfeiture. Malaker Corporation Stockholders Protec
tive Committee v. First Jersey Nat. Bank, 163 N.J.Su
per. 463, 395 A.2d 222, 238. 
Entire day. This phrase signifies an undivided day, not 
parts of two days. An entire day must have a legal, 
fixed, precise time to begin, and a fixed, precise time to 
end. A day, in contemplation of law, comprises all the 
twenty-four hours, beginning and ending at twelve 
o'clock at night; e.g., in a statute requiring the closing of 
all liquor establishments during "the entire day of any 
election," etc., this phrase means the natural day of 
twenty-four hours, commencing and terminating at mid
night. See also Day. 
Entire interest. The whole interest or right, without 
diminution. See Fee simple. 
Entire loss of sight. In respect of one eye, or both, 
means substantial blindness, not necessarily absolute. 
See Blindness. 
Entirely without understanding. Inability to compre
hend nature and effect of transaction involved, not nec
essarily absolute imbecility, idiocy or mental incapacity. 
Entire output contract. Promise to deliver one's entire 
output (i.e. production) to the other. If no other detri
ment can be located, it will be found in the promisor's 
having surrendered his privilege of selling elsewhere. 
Such agreements are governed by U.C.C. § 2-306. 
Entire tenancy. A sole possession by one person, called 
"severalty," which is contrary to several tenancy, where 
a joint or common possession is in one or more. 
Entirety. The whole, in contradistinction to a moiety or 
part only. When land is conveyed to husband and wife, 
they do not take by moieties, but both are seised of the 
entirety. Parceners, on the other hand, have not an 
entirety of interest, but each is properly entitled to the 
whole of a distinct moiety. 2 Bl.Comm. 188. See Estate 
by the entirety. 
The word is also used to designate that which the law 
considers as one whole, and not capable of being divided 
into parts. Thus, a judgment, it is held, is an entirety, 
and, if void as to one of the two defendants, cannot be 
valid as to the other. Also, if a contract is an entirety, 
no part of the consideration is due until the whole has 
been performed. 
Entire use, benefit, etc. These words in the habendum 
of a trust-deed for the benefit of a married woman are 
equivalent to the words "sole use," or "sole and separate 
use," and consequently her husband takes nothing un
der such deed. 
Entitle. In its usual sense, to entitle is to give a right or 
legal title to. Schmidt v. Gibbons, 101 Ariz. 222, 418 
P.2d 378, 380. To qualify for; to furnish with proper 
grounds for seeking or claiming. In ecclesiastical law, 
to entitle is to give a title or ordination as a minister. 
532 
Entitlement. Right to benefits, income or property 
which may not be abridged without due process. 
Entity. A real being; existence. An organization or 
being that possesses separate existence for tax purposes. 
Examples would be corporations, partnerships, estates 
and trusts. The accounting entity for which accounting 
statements are prepared may not be the same as the 
entity defined by law. 
"Entity" includes corporation and foreign corporation; 
not-for-profit corporation; profit and not-for-profit unin
corporated association; business trust, estate, partner
ship, trust, and two or more persons having a joint or 
common economic interest; and state, United States, 
and foreign government. Rev. Model Bus.Corp. Act, 
§ 1.40. 
An existence apart, such as a corporation in relation 
to its stockholders. 
Entity includes person, estate, trust, governmental 
unit. Bankruptcy Code, § 101. 
See also Legal entity. 
Entrance. Door, opening or passage for entering. 
Entrap. To catch, to entrap, to ensnare; hence, to catch 
by artifice. To involve in difficulties or distresses; to 
catch or involve in contradictions. 
Entrapment. The act of officers or agents of the govern
ment in inducing a person to commit a crime not con
templated by him, for the purpose of instituting a crimi
nal prosecution against him. According to the generally 
accepted view, a law enforcement official, or an under
cover agent acting in cooperation with such an official, 
perpetrates an entrapment when, for the purpose of 
obtaining evidence of a crime, he originates the idea of 
the crime and then induces another person to engage in 
conduct constituting such a crime when the other person 
is not otherwise disposed to do so. Sorrells v. U. S., 287 
U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. U. S., 
356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. 
A public law enforcement official or a person acting in 
cooperation with such an official perpetrates an entrap
ment if for the purpose of obtaining evidence of the 
commission of an offense, he induces or encourages 
another person to engage in conduct constituting such 
offense by either: (a) making knowingly false represen
tations designed to induce the belief that such conduct is 
not prohibited; or (b) employing methods of persuasion 
or inducement which create a substantial risk that such 
an offense will be committed by persons other than 
those who are ready to commit it. Model Penal Code, 
§ 2.13. 
See also Predisposition. 
Entreaty. Beseeching, or suppliant, or prayerful in na
ture. In re Sloan's Estate, 7 Cal.App.2d 319, 46 P.2d 
1007, 1018. 
Entrebat. L. Fr. An intruder or interloper. 
Entrega /entreyga/. Span. Delivery. 
EntrepOt /ont::lrpow/ontr::lpow/. A warehouse or maga
zine for the deposit of goods. In France, a building or

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place where goods from abroad may be deposited, and 
from whence they may be withdrawn for exportation to 
another country, without paying a duty. 
Entrepreneur /ontr;}pr;}n:lr/"n(y)u(w;})r/. One who, on 
his own, initiates and assumes the financial risks of a 
new enterprise and who undertakes its management. 
Entrust. To give over to another something after a 
relation of confidence has been established. To deliver 
to another something in trust or to commit something to 
another with a certain confidence regarding his care, 
use or disposal of it. Humphries v. Going, D.C.N.C., 59 
F.R.D. 583, 587. 
Entrusting. The transfer of possession of goods to a 
merchant who deals in goods of that type and who may 
in turn transfer such goods and all rights therein to a 
purchaser in the ordinary course of business. U.C.C. 
§ 2-403(2)(3). 
Entry. The act of making or entering a record; a setting 
down in writing of particulars; or that which is entered; 
an item. Generally synonymous with "recording." In 
re Labb, D.C.N.Y., 42 F.Supp. 542, 544. See also Enroll. 
Enter, in practice, means to place anything before 
court, or upon or among records, and is nearly equiva
lent to setting down formally in writing, either in full or 
abridged form but it may be used as meaning simply to 
file or duly deposit. Neiman v. City of Chicago, 37 
Ill.App.2d 309, 185 N.E.2d 358, 365. See also Docket. 
Passage leading into a house or other building or to a 
room; a vestibule. 
The act of a merchant, trader, or other businessman 
in recording in his account-books the facts and circum
stances of a sale, loan, or other transaction. The books 
in which such memoranda are first (or originally) in
scribed are called "books of original entry," and are 
prima facie evidence for certain purposes. 
In copyright law, depositing with the register of copy
rights the printed title of a book, pamphlet, etc., for the 
purpose of securing copyright on the same. Copyright 
Act, § 408 (17 U.S.C.A.). 
In immigration law, any coming of an alien into the 
U.S., from a foreign part or place or from an outlying 
possession, whether voluntary or otherwise. 8 U.S.C.A. 
§ 110l. 
In criminal law, entry is the unlawful making one's 
way into a dwelling or other house, for the purpose of 
committing a crime therein. In cases of burglary, the 
least entry with the whole or any part of the body, hand, 
or foot, or with any instrument or weapon, introduced 
for the purpose of committing a felony, is sufficient to 
complete the offense. See also Breaking. 
In customs law, the entry of imported goods at the 
custom house consists in submitting them to the inspec
tion of the revenue officers, together with a statement or 
description of such goods, and the original invoices of 
the same, for the purpose of estimating the duties to be 
paid thereon. 
See also False entry; Forcible entry; Illegal entry; Jour
nal entry. 
ENTRY ON THE ROLL 
Entry of judgment. See Entering judgments. 
Open entry. An entry upon real estate, for the purpose 
of taking possession, which is not clandestine nor effect
ed by secret artifice or stratagem, and (in some states by 
statute) one which is accomplished in the presence of 
two witnesses. 
Re-entry. The resumption of the possession of leased 
premises by the landlord on the tenant's failure to pay 
the stipulated rent or otherwise to keep the conditions of 
the lease. See Ejectment. 
Right of entry. See Right of entry. 
Entry ad communem legem / Emtriy red k;}myuwn;}m 
liyj;}m/. Entry at common law. The name of a writ of 
entry which lay for a reversioner after the alienation 
and death of the particular tenant for life, against him 
who was in possession of the land. 
Entry ad terminum qui prreteriit / entriy red t:lrm;}n;}m 
kwliy pr;}t{�hriy;}t/. The writ of entry ad terminum qui 
prreteriit lies where a man leases land to another for a 
term of years, and the tenant holds over his term. And 
if lands be leased to a man for the term of another's life, 
and he for whose life the lands are leased dies, and the 
lessee holds over, then the lessor shall have this writ. 
Entry for marriage in speech. A writ of entry causa 
matrimonii prreloquuti existed in old English law where 
lands or tenements were given to a man upon condition 
that he would take the donor to be his wife within a 
certain time, and he did not espouse her within the said 
term, or espoused another woman, or made himself 
priest. 
Entry in casu consimili /entriy in keyz(y)uw 
k;}nsim;}lay/. In old English law, a writ of entry in casu 
consimili existed where a tenant for life or by the 
curtesy alienated in fee. 
Entry in regular course of business. A record setting 
forth a fact or transaction made by one in the ordinary 
and usual course of one's business, employment, office or 
profession, which it was the duty of the enterer in such 
manner to make, or which was commonly and regularly 
made, or which it was convenient to make, in the 
conduct of the business to which such entry pertains. 
Entry of cause for trial. In old English practice, the 
proceeding by a plaintiff in an action who had given 
notice of trial, depositing with the proper officer of the 
court the nisi prius record, with the panel of jurors 
annexed, and thus bringing the issue before the court 
for trial. 
Entry of judgment. See Entering judgments. 
Entry on the roll. In old English practice, the parties to 
an action, personally or by their counsel, used to appear 
in open court and make their mutual statements viva 
voce, instead of as at the present day delivering their 
mutual pleadings, until they arrived at the issue or 
precise point in dispute between them. During the 
progress of this oral statement, a minute of the various 
proceedings was made on parchment by an officer of the 
court appointed for that purpose. The parchment then

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ENTRY ON THE ROLL 
became the record; in other words, the official history of 
the suit. Long after the practice of oral pleading had 
fallen into disuse, it continued necessary to enter the 
proceedings in like manner upon the parchment roll, 
and this was called "entry on the roll," or making up 
the "issue roll." But by a rule of H.T. 4 Wm. IV, the 
practice of making up the issue roll was abolished; and 
it was only necessary to make up the issue in the form 
prescribed for the purpose by a rule of H.T. 1853, and to 
deliver the same to the court and to the opposite party. 
The issue which was delivered to the court was called 
the "nisi prius record;" and that was regarded as the 
official history of the suit, in like manner as the issue 
roll formerly was. Under later practice, the issue roll or 
nisi prius record consisted of the papers delivered to the 
court, to facilitate the trial of the action, these papers 
consisting of the pleadings simply, with the notice of 
trial. 
A future interest created in a transferor who conveys 
an estate on condition subsequent. 
Entry, right of. See Right of entry. 
Entry, writ of. In old English practice, this was a writ 
made use of in a form of real action brought to recover 
the possession of lands from one who wrongfully with
held the same from the demandant. Its object was to 
regain the possession of lands of which the demandant, 
or his ancestors, had been unjustly deprived by the 
tenant of the freehold, or those under whom he claimed, 
and hence it belonged to the possessory division of real 
actions. It decided nothing with respect to the right of 
property, but only restored the demandant to that situa
tion in which he was (or by law ought to have been) 
before the dispossession committed. 3 Bl.Comm. 180. It 
was usual to specify in such writs the degree or degrees 
within which the writ was brought, and it was said to be 
"in the per " or "in the per and cui," according as there 
had been one or two descents or alienations from the 
original wrongdoer. If more than two such transfers 
had intervened, the writ was said to be "in the post." 3 
Bl.Comm. 181. See Writ of entry. 
Enumerated. This term is often used in law as equiva
lent to "mentioned specifically," "designated," or "ex
pressly named or granted"; as in speaking of "enumer
ated" governmental powers, items of property, or arti
cles in a tariff schedule. 
Enumerated powers. The powers specifically delegated 
by the Constitution to some branch or authority of the 
national government, and which are not denied to that 
government or reserved to the States or to the people. 
The powers specifically given to Congress are enumerat
ed in Article I of U.S. Constitution. See also Power 
(Constitutional powers). 
Enumeratio inill'mat regulam in casibus non enu
meratis i:m(y)uwm::lreysh(iy)ow ::lnf�rm::lt regy::ll::lm ::In 
keyz::lb::ls non ::In(y)uwm::lreyt::lsl. Enumeration disaf
firms the rule in cases not enumerated. 
Enumeratio unius est exclusio alterius l::ln(y)uwm::lre
ysh(iy)ow Y::lnaY::ls est ::lkskluwzh(iy)ow olt::lraiY::ls/. The 
specification of one thing is the exclusion of a different 
534 
thing. A maxim more generally expressed in the form 
"expressio unius est exclusio alterius" (q.v.). 
Enumerators l::ln(y)um::lreyt::lrz/. Persons appointed to 
collect census papers or schedules. 
Enure. To operate or take effect. To serve to the use, 
benefit, or advantage of a person. A release to the 
tenant for life enures to him in reversion; that is, it has 
the same effect for him as for the tenant for life. Often 
written "inure." 
En ventre sa mere Ion vontr::l sa mer/. L. Fr. In its 
mother's womb. A term descriptive of an unborn child. 
For some purposes the law regards an infant en ventre 
as in being. It may take a legacy; have a guardian; an 
estate may be limited to its use, etc. 1 Bl.Comm. 130. 
LaBlue v. Specker, 358 Mich. 558, 100 N.W.2d 445, 447. 
En vie Ion viy/. L. Fr. In life; alive. 
Environment. The totality of physical, economic, cul
tural, aesthetic, and social circumstances and factors 
which surround and affect the desirability and value of 
property and which also affect the quality of peoples' 
lives. The surrounding conditions, influences or forces 
which influence or modify. U. S. v. Amadio, C.A.lnd., 
215 F.2d 605, 611. 
Environmental impact statements. Documents which 
are required by federal and state laws to accompany 
proposals for major projects and programs that will 
likely have an impact on the surrounding environment. 
See 42 U.S.C.A. § 4332. Statement required by the 
National Environmental Policy Act to be developed by 
federal agencies for every recommendation or report on 
proposals for legislation and other major federal actions 
significantly affecting the quality of the human environ
ment. 
Environmental Protection Agency. The federal Envi
ronmental Protection Agency was created in 1970 to 
permit coordinated and effective governmental action on 
behalf of the environment. EPA endeavors to abate and 
control pollution systematically, by proper integration of 
a variety of research, monitoring, standard setting, and 
enforcement activities. As a complement to its other 
activities, EPA coordinates and supports research and 
antipollution activities by State and local governments, 
private and public groups, individuals, and educational 
institutions. EPA also reinforces efforts among other 
Federal agencies with respect to the impact of their 
operations on the environment, and it is specifically 
charged with making public its written comments on 
environmental impact statements and with publishing 
its determinations when those hold that a proposal is 
unsatisfactory from the standpoint of public health or 
welfare or environmental quality. See also National 
Environmen tal Policy Act. 
Envoy. A diplomat of the rank of minister or ambassa
dor sent by a country to the government of a foreign 
country to execute a special mission or to serve as a 
permanent diplomatic representative. 
Eodem ligamine quo ligatum est dissolvitur liyowd::lm 
l::lgeym::lniy kwow l::lgeyt::lm est d::lzolv::lt::lr/. A bond is

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535 
released by the same formalities with which it is con
tracted. 
Eodem modo quo quid constituitur, dissolvitur 
liyowd;}m mowdow kwow kwid konst;}tyuw;}t;}r, 
d;}zolv;}t;}r/. In the manner in which [by the same 
means by which] a thing is constituted, is it dissolved. 
Eo die liyow day(iy)/. Lat. On that day; on the same 
day. 
E.O.E. Errors and omissions excepted. Vernon Metal & 
Produce Co. v. Joseph Joseph & Bros. Co., 212 App.Div. 
358, 209 N.Y.S. 6, 11. 
Eo instanti liyow ;}nstrentay/. Lat. At that instant; at 
the very or same instant; immediately. 1 Bl.Comm. 
196, 249; 2 Bl.Comm. 168. Also written eo ins tan te. 
Eo intuitu liyow ;}nt(y)uw;}tuw/. Lat. With or in that 
view; with that intent or object. 
Eo loci liyow lowsay/. Lat. In the civil law, in that 
state or condition; in that place (eo loco). 
E.O.M. End of month. Payment terms in sale contract. 
Eo nomine liyow nom;}niy/. Lat. Under or by that 
name; by that appellation. Perinde ac si eo nomine tibi 
tradita fuisset, just as if it had been delivered to you by 
that name. 
An "eo nomine" designation is one which describes 
commodity by a specific name, usually one well known 
to commerce. Ordinarily, use is not a criteria in deter
mining whether merchandise is embraced within eo 
nomine provision, but use may be considered in deter
mining identity of eo nomine designation. J.E. Mamiye 
& Sons, Inc., v. U.S., Cust.Ct., 509 F.Supp. 1268, 1274. 
Eoth. In Saxon law, an oath. 
EPA. Environmental Protection Agency. 
Epidemic. This term, in its ordinary and popular mean
ing, applies to any disease which is widely spread or 
generally prevailing at a given place and time. Bethle
hem Steel Co. v. Industrial Accident Commission, 21 
Ca1.2d 742, 135 P.2d 153, 157. 
Epilepsy I ep;}lE�psiy I. Epilepsy, a disruption of the nor
mal rhythm of the brain, is an occasional, periodic, 
excessive and disorderly discharge of nerve cells in the 
brain. The discharge is chemical-electrical in nature. 
While the discharge itself is hidden, it manifests itself in 
various forms of visible activity, called seizures. The 
type of seizures will vary according to the location of the 
discharge in the brain, and the spread of the charge 
from cell to cell. In many cases, seizures are so mild (a 
brief twitch, a momentary attention loss) that they are 
not recognized. Even when they are, they have a mini
mal effect. A major convulsion which the public tends 
immediately to associate with epilepsy is only one of a 
number of seizure types. 
E pili ana ley piyliy anal. Hawaiian. Adjoining. 
Epimenia I ep;}miyniy;}/. Expenses or gifts. 
Epiphany I ;}pif;}niy I. A Christian festival, otherwise 
called the "Manifestation of Christ to the Gentiles," 
EPISCOPUS PUERORUM 
observed on the 6th of January, in honor of the appear
ance of the star to the three magi, or wise men, who 
came to adore the Messiah, and bring him presents. It 
is commonly called "Twelfth Day." 
Epiphyseal separation lep;}f;}siy;}l sep;}reysh;}n/. Not a 
bone fracture in true sense, but a separation of the 
fibers and cartilaginous tissues which attach the epiphy
sis to the femur. 
Epiphyseitis I ep;}fiziyayt;}sl . Inflammation of an epiph
ysis-a process of bone attached for a time to another 
bone by cartilage. 
Epiphysis I ;}pif;}s;}sl . Part or process of a bone which 
ossifies separately and subsequently becomes ankylosed 
(to grow together into one) into the main part of the 
bone. 
Epiqueya lepiykeya/. In Spanish law, a term synon
ymous with "equity" in one of its senses, and defined as 
"the benignant and prudent interpretation of the law 
according to the circumstances of the time, place, and 
person." 
Episcopacy I ;}pisk;}p;}siy I. The office of overlooking or 
overseeing; the office of a bishop, who is to overlook and 
oversee the concerns of the church. A form of church 
government by diocesan bishops. 
Episcopalia l;}pisk;}peyl(i)y;}/. In ecclesiastical law, sy
nodals, pentecostals, and other customary payments 
from the clergy to their diocesan bishop, formerly col
lected by the rural deans. 
Episcopalian I ;}pisk;}peyly;}n/. Of or pertaining to epis
copacy, or to the Episcopal Church. 
Episcopate I ;}pisk;}p;}tl . A bishopric. The dignity or 
office of a bishop. 
Episcoporum ecdicus I ;}pisk;}por;}m ekd;}k;}s/. Bishop's 
proctors; church lawyers. 
Episcopus I;}pisk;}p;}s/. In the civil law, an overseer; an 
inspector. A municipal officer who had the charge and 
oversight of the bread and other provisions which served 
the citizens for their daily food. Vicat. In medieval 
history, a bishop; a bishop of the Christian church. 
Episcopus alterius mandato quam regis non tenetur 
obtemperare I ;}pisk;}p;}s olt;}raiy;}s mrendeytow kwrem 
riyj;}s non t;}niyt;}r obtemp;}reriy I. A bishop needs not 
obey any mandate save the king's. 
Episcopus puerorum I ;}pisk;}p;}s pyuw;}ror;}m/. It was 
an old custom that upon certain feasts some lay person 
should plait his hair, and put on the garments of a 
bishop, and in them pretend to exercise episcopal juris
diction, and do several ludicrous actions, for which rea
son he was called "bishop of the boys;" and this custom 
obtained in England long after several constitutions 
were made to abolish it. 
Episcopus teneat placitum, in curia christianitatis, 
de iis qure mere sunt spiritualia I ;}pisk;}p;}s tEmiy;}t 
plres;}t;}m in kyuriy;} kristiyren;}teyt;}s, diy iy;}s kwiy 
miriy s,)nt spir;}ctyuweyl(i)y;}I . A bishop may hold plea 
in a Court Christian of things merely spiritual.

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EPISTOLA 
Epistola /�pist�b/. A letter; a charter; an instrument 
in writing for conveyance of lands or assurance of con
tracts. 
Epistolre /�pist�liy/. In the civil law, rescripts; opinions 
given by the emperors in cases submitted to them for 
decision. Answers of the emperors to petitions. The 
answers of counsellors (juris-consulti), as Ulpian and 
others, to questions of law proposed to them, were also 
called "epistolre." 
Opinions written out. The term originally signified 
the same as literre. 
E pluribus unum /iy pl(y)ur�b�s yuwn�m/. One out of 
many. The motto of the United States of America. 
Epoch /ep�k/iypok/. The time at which a new computa
tion is begun; the time whence dates are numbered. 
E.P.S. Earnings per share. 
Equal. Alike; uniform; on the same plane or level with 
respect to efficiency, worth, value, amount, or rights. 
Word "equal" as used in law implies not identity but 
duality and the use of one thing as the measure of 
another. Poindexter v. Willis, 23 Ohio Misc. 199, 256 
N.E.2d 254, 260. 
Equal access rule. This doctrine, whereby finding con
traband on premises occupied by defendant is not suffi
cient to support a conviction if persons other than defen
dant had an equal opportunity to commit the crime, 
requires evidence which affirmatively shows that per
sons other than defendant had equal access to the prem
ises and mere speculative evidence that others, by tres
passing, might have come onto the premises is not 
sufficient to preclude conviction. Heaton v. State, 139 
Ga.App. 83, 227 S.E.2d 854, 856. 
Equal Access to Justice Act. This 1980 Act entitles 
certain prevailing parties to recover attorney and expert 
witness fees, and other expenses, in actions involving 
the United States, unless the Government action was 
substantially justified. 5 U.S.C.A. § 504; 28 U.S.C.A. 
§ 2412. See also American rule; Prevailing party; Sub
stantially justified. 
Equal and uniform taxation. Taxes are said to be 
"equal and uniform" when no person or class of persons 
in the taxing district, whether it be a state, county, or 
city, is taxed at a different rate than are other persons 
in the same district upon the same value or the same 
thing, and where the objects of taxation are the same, by 
whomsoever owned or whatsoever they may be. Weath
erly Independent School Dist. v. Hughes, Tex.Civ.App., 
41 S.W.2d 445, 447. 
Equal Credit Opportunity Act. Federal Act prohibit
ing a creditor from discriminating against any applicant 
on the basis of race, color, religion, national origin, age, 
sex or marital status with respect to any aspect of a 
credit transaction. 15 U.S.C.A. § 1691 et seq. 
Equal degree. Persons are said to be related to a 
decedent "in equal degree" when they are all removed 
by an equal number of steps or degrees from the com
mon ancestor. 
536 
Equal Employment Opportunity Commission. The 
Equal Employment Opportunity Commission (EEOC) 
was created by Title VII of the Civil Rights Act of 1964 
(78 Stat. 241; 42 U.S.C.A. § 2000a), and became opera
tional July 2, 1965. The purposes of the Commission 
are to end discrimination based on race, color, religion, 
age, sex, or national origin in hiring, promotion, firing, 
wages, testing, training, apprenticeship, and all other 
conditions of employment; and to promote voluntary 
action programs by employers, unions, and community 
organizations to put equal employment opportunity into 
actual operation. 
Equal footing doctrine. This doctrine provides that, 
like the original states which retained title to the beds 
of their navigable waters, all new states are entitled to 
the beds of navigable waters within their boundaries; 
however, the doctrine is not without exception. State of 
Utah By and Through Div. of State Land v. U.S., 
D.Utah, 624 F.Supp. 622, 627. 
Equality. The condition of possessing substantially the 
same rights, privileges, and immunities, and being liable 
to substantially the same duties. "Equality" guaran
teed under equal protection clause is equality under the 
same conditions and among persons similarly situated; 
classifications must not be arbitrary and must be based 
upon some difference in classes having substantial rela
tion to legitimate objects to be accomplished. Boyn� v. 
State ex reI. Dickerson, 80 Nev. 160, 390 P.2d 225, 227. 
See Equal protection clause; Equal protection of the law. 
Equalization. The act or process of making equal or 
bringing about conformity to a common standard. The 
process of equalizing assessments or taxes, as performed 
by "boards of equalization" in various states, consists in 
comparing the assessments made by the local officers of 
the various counties or other taxing districts within the 
jurisdiction of the board and reducing them to a com
mon and uniform basis, increasing or diminishing by 
such percentage as may be necessary, so as to bring 
about, within the entire territory affected, a uniform 
and equal ratio between the assessed value and the 
actual cash value of property. The term is also applied 
to a similar process of leveling or adjusting the assess
ments of individual taxpayers, so that the property of 
one shall not be assessed at a higher (or lower) percent
age of its market value than the property of another. 
The process of determining that property of a certain 
nature is generally placed on the assessment rolls at a 
certain percentage of its true and full value. Yellow
stone Pipe Line Co. v. State Bd. of Equalization, 138 
Mont. 603, 358 P.2d 55, 60. See also Equal protection of 
the law. 
Equalization board. Local governmental agency whose 
function is to supervise the equalization of taxes as 
among various properties and as among various districts 
to bring about an equitable distribution of tax burdens. 
Equalization of taxes. See Equalization. 
Equalize. To make equal, to cause to correspond, or be 
like in amount or degree, as compared with something.

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537 
De Mille v. Los Angeles County, 25 Cal.App. 506, 77 P.2d 
905, 906. 
Equally divided. Provision in will that property shall 
be uequally divided," or divided Ushare and share alike" 
means that the property shall be divided per capita and 
not per stirpes. However, these phrases may be so 
modified by other parts of the will as to require distribu
tion per stirpes. 
Equal Pay Act. Federal law which mandates same pay 
for all persons who do same work without regard to sex, 
age, etc. For work to be uequal" within meaning of Act, 
it is not necessary that jobs be identical but only that 
they be substantially equal. Usery v. Richman, C.A. 
N.D., 558 F.2d 1318, 1320. 29 U.S.C.A. § 206. 
Equal protection clause. That provision in 14th 
Amendment to U.S. Constitution which prohibits a State 
from denying to any person within its jurisdiction the 
equal protection of the laws. This clause requires that 
persons under like circumstances be given equal protec
tion in the enjoyment of personal rights and the preven
tion and redress of wrongs. In re Adoption of Richard
son, 251 C.A.2d 222, 59 Cal.Rptr. 323, 334. See also 
Equal protection of the law. 
Equal protection of the law. The constitutional guar
antee of "equal protection of the laws" means that no 
person or class of persons shall be denied the same 
protection of the laws which is enjoyed by other persons 
or other classes in like circumstances in their lives, 
liberty, property, and in their pursuit of happiness. 
People v. Jacobs, 27 Cal.App.3d 246, 103 Cal.Rptr. 536, 
543; 14th Amend., U.S. Const. Doctrine simply means 
that similarly situated persons must receive similar 
treatment under the law. Dorsey v. Solomon, D.C.Md., 
435 F.Supp. 725, 733. 
The equal protection of the laws of a state is extended 
to persons within its jurisdiction, within the meaning of 
the constitutional requirement, when its courts are open 
to them on the same conditions as to others, with like 
rules of evidence and modes of procedure, for the securi
ty of their persons and property, the prevention and 
redress of wrongs, and the enforcement of contracts; 
when they are subjected to no restrictions in the acquisi
tion of property, the enjoyment of personal liberty, and 
the pursuit of happiness, which do not generally affect 
others; when they are liable to no other or greater 
burdens and charges than such as are laid upon others; 
and when no different or greater punishment is enforced 
against them for a violation of the laws. 
"Equal protection," with respect to classification for 
taxation purposes, does not require identity of treat
ment, but only (1) that classification rests on real and 
not feigned differences, (2) that the distinction have 
some relevance to purpose for which classification is 
made, and (3) that the different treatments be not so 
disparate, relative to difference in classification, as to be 
wholly arbitrary. Walters v. City of St. Louis, Mo., 347 
U.S. 231, 74 S.Ct. 505, 509, 98 L.Ed. 660. 
Equal Rights Amendment. Proposed amendment to 
U.S. Constitution which provided that: "Equality of 
EQUITABLE ABSTENTION DOCTRINE 
rights under the law shall not be denied or abridged by 
the United States or by any State on account of sex." 
Such amendment failed to receive ratification by the 
required number of states. 
Equal Time Act. This Act requires that if licensee of 
broadcasting facility permits a legally qualified candi
date for public office to use facility for broadcasting, he 
shall afford equal opportunities to all other such candi
dates for that office. 47 U.S.C.A. § 315. 
Eques /iykwiyz/. Lat. In Roman and old English law, a 
knight. 
Equilocus /ekw;;,16wk;;,s/. An equal. 
Equinoxes /iykw;;,noks;;,z/ ekw· /. The two periods of the 
year (vernal equinox about March 21st, and autumnal 
equinox about September 22d) when the time from the 
rising of the sun to its setting is equal to the time from 
its setting to its rising. 
Equip. To furnish for service or against a need or 
exigency; to fit out; to supply with whatever is neces
sary to efficient action in any way. Synonymous with 
furnish. 
Equipment. Furnishings, or outfit for the required pur
poses. Whatever is needed in equipping; the articles 
comprised in an outfit; equippage. Farm & Home Sav
ing & Loan Ass'n of Missouri v. Empire Furniture Co., 
Tex.Civ.App., 87 S.W.2d 1111, 111 2. 
Under U.C.C., goods include "equipment" if they are 
used or bought for use primarily in business (including 
farming or a profession) or by a debtor who is a non
profit organization or a governmental subdivision or 
agency or if the goods are not included in the definitions 
of inventory, farm products or consumer goods. U.C.C. 
§ 9-109(2). 
Equipment trust. Financing device commonly used by 
railroads by which equipment is purchased from the 
manufacturer by a trustee who provides a substantial 
portion of the purchase price, the railroad providing the 
balance. The trustee then leases the equipment to the 
railroad which pays a rental fee consisting of interest, 
amortization for serial retirement and trustee's fee. 
Equipment trust certificate. A type of security, gener
ally issued by a railroad, to pay for new equipment. 
Title to the equipment, such as a locomotive, is held by a 
trustee until the notes are paid off. An equipment trust 
certificate is usually secured by a first claim on the 
equipment. 
Equitable. Just; conformable to the principles of justice 
and right. Existing in equity; available or sustainable 
by action in equity, or upon the rules and principles of 
equity. See Equitable action. 
As to equitable Assets; Construction; Conversion; 
Easement; Ejectment; Estate; Fraud; Garnishment; 
Levy; Mortgage; Title, and Waste, see those titles. 
Equitable abstention doctrine. A court may refrain 
from exercising jurisdiction which it possesses in the 
interest of comity between courts and between states as 
in the case of actions involving the affairs of a foreign

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EQUITABLE ABSTENTION DOCTRINE 
corporation or foreign land. Doctrine also applies to 
case of Federal court's refraining from interfering with 
decision of state administrative agency's decision on a 
local matter. Allegheny Airlines, Inc. v. Penn. Public 
Utility Comm., D.C.Pa., 319 F.Supp. 407. 
Equitable action. One seeking an equitable remedy or 
relief; though in the federal and most state courts, with 
the procedural merger of law and equity, there is now 
procedurally only one type of action-a "civil action." 
Fed.R. Civil P. 2. 
Equitable ad justment theory. In settlement of federal 
contract disputes, contracting officer should make fair 
adjustment within a reasonable time before contractor is 
required to settle with his subcontractors, suppliers and 
other creditors. Roberts v. U. S., 174 Ct.Cl. 940, 357 
F.2d 938. 
Equitable adoption. Refers to situation involving oral 
contract to adopt child, fully performed except that 
there was no statutory adoption, and in which rule is 
applied for benefit of child in determination of heirship 
upon death of person contracting to adopt. Barlow v. 
Barlow, 170 Colo. 465, 463 P.2d 305, 308. In certain 
jurisdictions, a child has rights of inheritance from 
person who has contracted to adopt him but has not 
done so. Dunn v. Richardson, D.C.Ark., 336 F.Supp. 
649, 654. 
Equitable assignment. An assignment which, though 
invalid at law, will be recognized and enforced in equity; 
e.g., an assignment of a chose in action, or of future 
acquisitions of the assignor. Stewart v. Kane, Mo.App., 
111 S.W.2d 971, 974. In order to work an "equitable 
assignment", there must be an absolute appropriation 
by the assignor of the debt or fund sought to be assigned. 
Sneesby v. Livington, 182 Wash. 229, 46 P.2d 733, 735. 
Equitable benefit doctrine. This doctrine allows bank
ruptcy court to grant preferred status to claims for 
service rendered by persons other than bankruptcy offi
cers, to extent that services benefited estate, where 
person is acting primarily for benefit of estate as a 
whole. Matter of Supreme Plastics, Inc., D.C.Ill., 8 B.R. 
730, 736. 
Equitable conversion. The doctrine that, since equity 
regards as done what out to be done, once parties have 
executed a binding contract for the sale of land, eq
uitable title vests in the purchaser and the vendor holds 
legal title only as security for payment of the balance of 
the purchase price. A doctrine commonly applied when 
death intervenes between the signing of an agreement to 
sell real estate and the date of transfer of title resulting 
in treating land as personalty and personalty as land 
under certain circumstances. It takes place when a 
contract for sale of realty becomes binding on parties. 
Lampman v. Sledge, Tex.Civ.App., 502 S.W.2d 957, 959. 
See also Conversion. 
Equitable defense. Formerly, a defense which was only 
available in a court of equity. With the procedural 
merger of law and equity however, equitable defenses 
538 
can be raised along with legal defenses in same action. 
Fed.R. Civil P. 8. 
Equitable distribution. No-fault divorce statutes in 
certain states (e.g. New Jersey) grant courts the power to 
distribute equitably upon divorce all property legally 
and beneficially acquired during marriage by husband 
and wife, or either of them, whether legal title lies in 
their joint or individual names. 
Equitable doctrine of approximation. This doctrine 
differs from "Cy pres doctrine" in purpose and applica
tion. The last mentioned doctrine applies where an 
apparent charitable intention has failed, whether by an 
incomplete disposition at the outset or by subsequent 
inadequacy of the original object, and its purpose is to 
give a cy pres or proximate application to testator's 
intention, whereas the "equitable doctrine of approxima
tion" merely authorizes a court to vary the details of 
administration, in order to preserve the trust, and carry 
out the general purpose of the donor. 
Equitable election. Under this doctrine, a person can
not accept benefits accruing to him by a will and at the 
same time refuse to recognize validity of will in other 
respects, but doctrine may not be applied to prejudice of 
third parties. Luttrell v. Luttrell, 4 Ohio App.2d 305, 
212 N.E.2d 641, 642. The choice to be made by a person 
who may, under a will or other instrument, have either 
one of two alternative rights or benefits, but not both. 
Peters v. Bain, 133 U.S. 670, 10 S.Ct. 354, 33 L.Ed. 696. 
The obligation imposed upon a party to choose between 
two inconsistent or alternative rights or claims, in cases 
where there is clear intention of the person from whom 
he derives one that he should not enjoy both. Dakan v. 
Dakan, 125 Tex. 305, 83 S.W.2d 620, 624. A choice 
shown by an overt act between two inconsistent rights, 
either of which may be asserted at the will of the 
chooser alone. Bierce v. Hutchins, 205 U.S. 346, 27 S.Ct. 
524, 51 L.Ed. 828. See also Election (Law of wills). 
Equitable estoppel. The doctrine by which a person 
may be precluded by his act or conduct, or silence when 
it is his duty to speak, from asserting a right which he 
otherwise would have had. Mitchell v. McIntee, 15 
Or.App. 85, 514 P.2d 1357, 1359. The effect of voluntary 
conduct of a party whereby he is precluded from assert
ing rights against another who has justifiably relied 
upon such conduct and changed his position so that he 
will suffer injury if the former is allowed to repudiate 
the conduct. American Bank & Trust Co. v. Trinity 
Universal Ins. Co., 251 La. 445, 205 So.2d 35, 40. 
Elements or essentials of such estoppel include change 
of position for the worse by party asserting estoppel, 
Malone v. Republic Nat. Bank & Trust Co., Tex.Civ. 
App., 70 S.W.2d 809, 812; conduct by party estopped 
such that it would be contrary to equity and good 
conscience for him to allege and prove the truth, Rody v. 
Doyle, 181 Md. 195, 29 A.2d 290, 293; false representa
tion or concealment of facts, Clark v. National Aid Life 
Ass'n, 177 Okl. 137, 57 P.2d 832, 833; ignorance of party 
asserting estoppel of facts and absence of opportunity to 
ascertain them, Fipps v. Stidham, 174 Ok!. 473, 50 P.2d

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539 
680, 684; injury from declarations, acts, or omissions of 
party were he permitted to gainsay their truth, Fleish
bein v. Western Auto Supply Agency, 19 Cal.App.2d 424, 
65 P.2d 928; intention that representation should be 
acted on, Consolidated Cut Stone Co. v. Seidenbach, 181 
Okl. 578, 75 P.2d 442, 452; knowledge, actual or con
structive, of facts by party estopped, Antrim Lumber Co. 
v. Wagner, 175 Okl. 564, 54 P.2d 173, 176; Lillywhite v. 
Coleman, 46 Ariz. 523, 52 P.2d 1157, 1160; misleading 
person to his pre judice, United States, for Use and 
Benefit of Noland Co., v. Wood, C.C.A.Va., 99 F.2d 80, 
82; omission, misconduct or misrepresentation mislead
ing another. It is based on some affirmative action, by 
word or conduct, of the person against whom it is 
invoked, and some action of the other party, relying on 
the representations made. George W. Armbruster, Jr., 
Inc. v. City of Wildwood, D.C.N.J., 41 F.2d 823, 829. 
Estoppel in pais and equitable estoppel are convertible 
terms. Brown v. Corn Exchange Nat. Bank & Trust Co., 
136 N.J.Eq. 430, 42 A.2d 474, 480. 
Equitable interest. The interest of a beneficiary under 
a trust is considered equitable as contrasted with the 
interest of the trustee which is a legal interest because 
the trustee has legal as contrasted with equitable title. 
Restatement, Second, Trusts, § 2f. See also Equitable 
ownership. 
Equitable lien. A right, not existing at law, to have 
specific property applied in whole or in part to payment 
of a particular debt or class of debts. Morrison Flying 
Service v. Deming Nat. Bank, C.A.N.M., 404 F.2d 856, 
861. An equitable lien arises either from a written 
contract which shows an intention to charge some par
ticular property with a debt or obligation or is implied 
and declared by a court of equity out of general consider
ations of right and justice as applied to relations of the 
parties and circumstances of their dealings. Owensboro 
Banking Co. v. Lewis, 269 Ky. 277, 106 S.W.2d 1000, 
1004. 
Equitable life estate. An interest in real or personal 
property which lasts for the life of the holder of the 
estate and which is equitable as contrasted with legal in 
its creation as in the case of a beneficiary of a trust who 
has a life estate under the trust. 
Equitable mortgage. An agreement to post certain 
property as security before the security agreement is 
formalized. A catchall term to connote all of the trans
actions which, despite peculiarities of form or appear
ance of nonsecured transaction, are given effect of mort
gage when examined by court with equitable powers. 
Eagle's Nest, Inc. v. Malt, 70 N.C.App. 397, 319 S.E.2d 
685, 687. For example, if a person transfers property by 
deed absolute to his creditor as security for a debt with 
the mutual understanding that such property will be 
reconveyed by the creditor on the repayment of the debt, 
a court will consider such a deed a mortgage, though an 
innocent purchaser for value from the creditor can cut 
off the equitable rights of the debtor. See also Mortgage. 
Equitable owner. One who is recognized in equity as 
owner of the property, because real and beneficial use 
EQUITABLE SUBROGATION 
and title belong to him, even though bare legal title is 
invested in another. Levin v. Carney, 120 N.E.2d 92, 96, 
161 Ohio St. 513. 
Equitable ownership. The ownership interest of one 
who has equitable as contrasted with legal ownership of 
property as in the case of a trust beneficiary. Owner
ship rights which are protected in equity. See also 
Equitable interest. 
Equitable recoupment. Rule of the law which dimin
ishes the right of a party invoking legal process to 
recover a debt, to the extent that he holds money or 
property of his debtor, to which he has no moral right, 
and it is ordinarily a defensive remedy going only to 
mitigation of damages. Doctrine of "equitable recoup
ment" provides that, at least in some cases, a claim for a 
refund of taxes barred by a statute of limitations may 
nevertheless be recouped against a tax claim of the 
government. May Dept. Stores Co. v. City of Pittsburgh, 
Pa.Cmwlth., 376 A.2d 309, 313. 
Equitable redemption. The act or process by which a 
mortgagor redeems his property after payment of the 
mortgage debt. The purchase of the equity of redemp
tion after foreclosure has commenced. See Equity of 
redemption. 
Equitable relief. That species of relief sought in a court 
with equity powers as, for example, in the case of one 
seeking an injunction or specific performance instead of 
money damages. 
Equitable rescission. Rescission decreed by court of 
equity, as distinguished from "legal rescission" which is 
effected by restoration or offer to restore. 
Equitable restraint doctrine. Under this doctrine, fed
eral courts will not intervene to enjoin a pending state 
criminal prosecution absent a strong showing of bad 
faith and irreparable injury. Samuels v. Mackell, 401 
U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 
401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. 
Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; 
Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 78; 
Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 
L.Ed.2d 792. 
Equitable right. Right cognizable within court of equity 
as contrasted with legal right enforced in court of law; 
though under rules practice in most states and in the 
federal courts there has been a merger procedurally 
between actions at law and equity. Fed.R. Civil P. 2. 
Equitable servitudes. Building restrictions and restric
tions on the use of land which may be enforced in 
equity. If there is a scheme in their creation, a subse
quent owner may enforce them by injunctive relief 
against another subsequent owner. Snow v. Van Dam, 
291 Mass. 477, 197 N.E. 224. Such are broader than 
covenants running with the land because they are inter
ests in land. 
Equitable subrogation. Legal fiction through which 
person who pays debt for which another is primarily 
responsible is substituted, or subrogated, to all rights 
and remedies of other. Commercial Union Ins. Co. v.

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EQUITABLE SUBROGATION 
Medical Protective Co., 426 Mich. 109, 393 N.W.2d 479, 
487. 
Equitable title. See Equitable ownership. 
Equitable waste. Injury to the corpus of property in
consistent with good management or husbandry and 
recognized by a court of equity but not by a court of law. 
Equitas sequitur legem liykw;}tres sekw;}t;}r liyj;}m/. 
Equity follows the law. 
Equity. Justice administered according to fairness as 
contrasted with the strictly formulated rules of common 
law. It is based on a system of rules and principles 
which originated in England as an alternative to the 
harsh rules of common law and which were based on 
what was fair in a particular situation. One sought 
relief under this system in courts of equity rather than 
in courts of law. The term "equity" denotes the spirit 
and habit of fairness, justness, and right dealing which 
would regulate the intercourse of men with men. Gilles 
v. Department of Human Resources Development, 11 
Ca1.3d 313, 113 Cal.Rptr. 374, 380, 521 P.2d 110. Equity 
is a body of jurisprudence, or field of jurisdiction, differ
ing in its origin, theory, and methods from the common 
law; though procedurally, in the federal courts and 
most state courts, equitable and legal rights and reme
dies are administered in the same court. See Equity, 
courts of. 
A system of jurisprudence collateral to, and in some 
respects independent of, "law"; the object of which is to 
render the administration of justice more complete, by 
affording relief where the courts of law are incompetent 
to give it, or to give it with effect, or by exercising 
certain branches of jurisdiction independently of them. 
A stockholders' proportionate share (ownership inter
est) in the corporation's capital stock and surplus. The 
extent of an ownership interest in a venture. In this 
context, equity refers not to a legal concept but to the 
financial definition that an owner's equity in a business 
is equal to the business's assets minus its liabilities. 
Value of property or an enterprise over and above the 
indebtedness against it (e.g., market value of house mi
nus mortgage). Dorfman v. Dorfman, Tex.Civ.App. 457 
S.W.2d 417, 422. See Real estate, below. 
Accounting. Paid-in capital plus retained earnings. 
Countervailing equity. A contrary and balancing equity; 
an equity or right opposed to that which is sought to be 
enforced or recognized, and which ought not to be sacri
ficed or subordinated to the latter, because it is of equal 
strength and justice, and equally deserving of considera
tion. 
Investment. Ownership interest of shareholders in cor
poration (as opposed to bond or other debt interests). 
Latent or secret equity. An equitable claim or right, the 
knowledge of which has been confined to the parties for 
and against whom it exists, or which has been concealed 
from one or several persons interested in the subject
matter. 
540 
Natural equity. A term sometimes employed in works 
on jurisprudence, possessing no very precise meaning, 
but used as equivalent to justice, honesty, or morality in 
business relations, or man's innate sense of right dealing 
and fair play. Inasmuch as equity, as now adminis
tered, is a complex system of rules, doctrines, and prece
dents, and possesses, within the range of its own fixed 
principles, but little more elasticity than the law, the 
term "natural equity" may be understood to denote, in a 
general way, that which strikes the ordinary conscience 
and sense of justice as being fair, right, and equitable, in 
advance of the question whether the technical jurispru
dence of the chancery courts would so regard it. 
Perfect equity. An equitable title or right which lacks 
nothing to its completeness as a legal title or right 
except the formal conveyance or other investiture which 
would make it cognizable at law; particularly, the equi
ty or interest of a purchaser of real estate who has paid 
the purchase price in full and fulfilled all conditions 
resting on him, but has not yet received a deed or 
patent. 
Real estate. The remaining interest belonging to one 
who has pledged or mortgaged his property, or the 
surplus of value which may remain after the property 
has been disposed of for the satisfaction of liens. The 
amount or value of a property above the total liens or 
charges. The difference between the fair market value 
and debt in property; thus, an equity of $5,000 may 
come about by having fair market value property of 
$20,000 with debt of $15,000. The term came from the 
development in English courts of equity of the right of 
an owner of property to redeem his property even after 
a foreclosure, which right came to be known as the 
equity of redemption. The existence of the right was 
predicated on the property being of far greater value 
than the debt owed to the party that foreclosed. 
Equity acts in personam. A basic principle of law of 
equity to the effect that equity grants relief in the form 
of personal decrees as contrasted with law which awards 
money damages. A necessary corollary of this principle 
is that equity requires personal jurisdiction to grant its 
relief. 
Equity, bill in. The name given to the original pleading 
in an equity case. However, under current rules prac
tice in most states, the "bill" has been replaced by a 
complaint with the procedural merger of law and equity. 
Fed.R. Civil P. 2. 
Equity capital. Funds furnished by owners of company 
in return for stock or other evidence of ownership. 
Equity, courts of. Courts which administer justice ac
cording to the system of equity, and according to a 
peculiar course of procedure or practice. Frequently 
termed "courts of chancery." With the procedural 
merger of law and equity in the federal and most state 
courts, equity courts have been abolished. 
Equity financing. Raising of capital by corporation by 
issuing (selling) stock. This is contrasted with "debt

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541 
financing" which is the ralsmg of capital by issuing 
bonds or borrowing money. 
Equity follows the law. Equity adopts and follows the 
rules of law in all cases to which those rules may, in 
terms, be applicable. Equity, in dealing with cases of an 
equitable nature, adopts and follows the analogies fur
nished by the rules of law. A leading maxim of equity 
jurisprudence, which, however, is not of universal appli
cation, but liable to many exceptions. 
Equity jurisdiction. In a general sense, the jurisdiction 
belonging to a court of equity, but more particularly the 
aggregate of those cases, controversies, and occasions 
which form proper subjects for the exercise of the pow
ers of a chancery court. 
In the federal and most state courts there has been a 
merger procedurally between law and equity actions 
(i.e., the same court has jurisdiction over both legal and 
equitable matters) and, hence, a person seeking eq
uitable relief brings the same complaint as in a law 
action and simply demands equitable relief instead of (or 
in addition to) money damages. Fed.R. Civil P. 2. 
"Equity jurisdiction," in its ordinary acceptation, as 
distinguished on the one side from the general power to 
decide matters at all, and on the other from the jurisdic
tion "at law" or "common-law jurisdiction," is the power 
to hear certain kinds and classes of civil causes accord
ing to the principles of the method and procedure 
adopted by the court of chancery, and to decide them in 
accordance with the doctrines and rules of equity juris
prudence, which decision may involve either the deter
mination of the equitable rights, estates, and interests of 
the parties to such causes, or the granting of equitable 
remedies. In order that a cause may come within the 
scope of the equity jurisdiction, one of two alternatives is 
essential; either the primary right, estate, or interest to 
be maintained, or the violation of which furnishes the 
cause of action, must be equitable rather than legal; or 
the remedy granted must be in its nature purely eq
uitable, or if it be a remedy which may also be given by 
a court of law, it must be one which, under the facts and 
circumstances of the case, can only be made complete 
and adequate through the equitable modes of procedure. 
Norback v. Board of Directors of Church Extension Soc., 
84 Utah 506, 37 P.2d 339. 
Equity jurisprudence. That portion of remedial justice 
which is exclusively administered by courts of equity as 
distinguished from courts of common law. More gener
ally speaking, the science which treats of the rules, 
principles, and maxims which govern the decisions of a 
court of equity, the cases and controversies which are 
considered proper subjects for its cognizance, and the 
nature and form of the remedies which it grants. 
Equity loan. Line of credit made available by banks to 
homeowners with the extent of such credit based on, and 
secured with, built-up equity in borrower's home. See 
Equity (Real estate). 
Equity looks upon that as done which ought to have 
been done. Equity will treat the subject-matter, as to 
collateral consequences and incidents, in the same man-
EQUIVALENT 
ner as if the final acts contemplated by the parties had 
been executed exactly as they ought to have been; not 
as the parties might have executed them. 
Equity of a statute. By this phrase is intended the rule 
of statutory construction which admits within the opera
tion of a statute a class of cases which are neither 
expressly named nor excluded, but which, from their 
analogy to the cases that are named, are clearly and 
justly within the spirit and general meaning of the law; 
such cases are said to be "within the equity of the 
statute." 
Equity of partners. A term used to designate the right 
of each of them to have the firm's property applied to 
the payment of the firm's debts. 
Equity of redemption. The right of the mortgagor of 
property to redeem the same (i.e., save from foreclosure) 
after it has been forfeited, at law, by a breach of the 
condition of the mortgage (i.e., default in mortgage pay
ments), upon paying the amount of debt, interest and 
costs. Brown v. United States, C.A.Pa., 95 F.2d 487, 489. 
See Foreclosure; Redemption. 
Equity ratio. Stockholders' equity divided by total as
sets. 
Equity security. A security that represents an equity 
ownership interest in a corporation, rather than debt. 
Equity securities are usually considered to be common 
and preferred shares. See Stock. Compare Bonds. 
As defined in Bankruptcy Code § 101, term includes: 
(A) share in a corporation, whether or not transferable 
or denominated "stock", or similar security; (B) interest 
of a limited partner in a limited partnership; or (C) 
warrant or right, other than a right to convert, to 
purchase, sell, or subscribe to a share, security, or inter
est of a kind specified in subparagraph (A) or (B). 
Equity shares. Shares of any class of stock, whether or 
not preferred as to dividends or assets, having unlimited 
dividend rights. See Stock. 
Equity suffers not a right without a remedy. Graselli 
Chemical Company v. lEtna Explosives Co., 164 C.c.A. 
380, 252 F. 456. 
Equity term. An equity term of court is one devoted 
exclusively to equity business, that is, in which no 
criminal cases are tried nor any cases requiring the 
impaneling of a jury. See Equity, courts of. 
Equity to a settlement. The equitable right of a wife, 
when her husband sues in equity for the reduction of 
her equitable estate to his own possession, to have the 
whole or a portion of such estate settled upon herself 
and her children. Also a similar right recognized by the 
equity courts as directly to be asserted against the 
husband. Also sometimes called the "wife's equity." 
Equivalent, adj. Equal in value, force, measure, vol
ume, power, and effect or having equal or corresponding 
import, meaning or significance; alike, identical. Bul
lard Co. v. General Electric Co., D.C.W.Va., 234 F.Supp. 
995, 998.

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EQUIVALENTS DOCTRINE 
Equivalents doctrine. In patent infringement law, doc
trine of "equivalents" means that if two devices do the 
same work in sUbstantially the same way and accom
plish substantially the same result, they are the same, 
even though they differ in name, form or shape. Fife 
Mfg. Co. v. Stanford Engineering Co., D.C.Ill., 193 
F.Supp. 226, 232. A doctrine which declares that a 
device infringes a patented invention if it does the same 
work as the invention in substantially the same way, 
even if it is outside the literal terms of the claims of the 
patent. The doctrine prevents parties from infringing 
patents with impunity by making merely trivial changes 
in an invention. The more significant the patented 
invention the greater the scope of this doctrine. 
Equivocal. Having a double or several meanings or 
senses. Synonymous with "ambiguous". See Ambiguity. 
Equuleus / �kwuwliy�s/. A kind of rack for extorting 
confessions. 
ERA. See Equal Rights Amendment. 
Erastians / �rrestiy�nz/ . The followers of Erastus. The 
sect obtained much influence in England, particularly 
among common lawyers in the time of Selden. They 
held that offenses against religion and morality should 
be punished by the civil power, and not by the censures 
of the church or by excommunication. 
Erasure. The obliteration of words or marks from a 
written instrument by rubbing, scraping, or scratching 
them out. Also the place in a document where a word 
or words have been so removed. The term is sometimes 
used for the removal of parts of a writing by any means 
whatever, as by cancellation; but this is not an accurate 
use. 
Erasure of record. Procedure by which a person's crimi
nal record may be sealed or destroyed if certain condi
tions are met. This is commonly provided for by statute 
for juvenile records. 
Within statute providing that all police and court 
records shall be erased upon acquittal of the accused, 
word "erased" means at the very least nondisclosure. 
Lechner v. Holmberg, 165 Conn. 152, 328 A.2d 701, 707. 
See also Expungement of record. 
Erciscundus / ;}rs�sk�nd�s/ . In the civil law, to be divid
ed. Judicium familire erciscundre, a suit for the parti
tion of an inheritance. An ancient phrase derived from 
the Twelve Tables. 
Erect. In England, one of the formal words of incorpo
ration in royal charters. "We do, incorporate, erect, 
ordain, name, constitute, and establish." "Construct" is 
synonymous with "erect". 
Erection. Raising up; building; a completed building; 
to build; construct; set up. There is a distinction be
tween "erection" and maintenance. Turturro v. Calder, 
307 Mass. 159, 29 N.E.2d 744, 746. 
Ergo / �rgow /. Lat. Therefore; hence; because. 
Ergolabi /�rgowleybay/. In the civil law, undertakers of 
work; contractors. 
542 
Erie v. Tompkins. The landmark case holding that in 
an action in the Federal court, except as to matters 
governed by the U.S. Constitution and Acts of Congress, 
the law to be applied in any case is the law of the State 
in which the Federal Court is situated. 304 U.S. 64, 58 
S.Ct. 817, 82 L.Ed. 1188. This case overruled Swift v. 
Tyson, 41 U.S. 1, 16 Pet. 1, 10 L.Ed. 865, which held that 
there was a body of federal general common law to be 
applied in such cases. 
Erigimus / �rij�m�s/. We erect. One of the words by 
which a corporation may be created in England by the 
king's charter. 1 Bl.Comm. 473. 
E.R.I.S.A. Employee Retirement Income Security Act. 
Federal Act governing the funding, vesting, administra
tion, and termination of private pension plans. This Act 
also established the Pension Benefit Guaranty Corpora
tion. 29 U.S.C.A. § 1001 et seq. 
Ermine / �rm�n/ . By metonymy, this term is used to 
describe the office or functions of a judge, whose state 
robe, lined with ermine, is emblematical of purity and 
honor without stain. 
Erosion. To wear away by the action of water, wind, or 
other elements. The gradual eating away of the soil by 
the operation of currents or tides. Distinguished from 
submergence, which is the disappearance of the soil 
under the water and the formation of a navigable body 
over it. See Avulsion. Compare Accretion. 
Erotomania hrot�meyn(i)y�/. See Insanity. 
Errant. Wandering; itinerant; applied to justices on 
circuit, and bailiffs at large, etc. 
Erratum /�rret�m/�reyt�m/. Lat. Error. Used in the 
Latin formula for assigning errors, and in the reply 
thereto, "in nullo est erratum," i.e., there was no error, 
no error was committed. 
Erroneous. Involving error; deviating from the law. 
This term is not generally used as designating a corrupt 
or evil act. See Error. 
Erroneous assessment. Refers to an assessment that 
deviates from the law and is therefore invalid, and is a 
defect that is jurisdictional in its nature, and does not 
refer to the judgment of the assessing officer in fixing 
the amount of valuation of the property. In re Blatt, 41 
N.M. 269, 67 P.2d 293, 301. 
Erroneous judgment. One rendered according to 
course and practice of court, but contrary to law, upon 
mistaken view of law, or upon erroneous application of 
legal principles. 
Erroneous or illegal tax. One levied without statutory 
authority, or upon property not subject to taxation, or 
by some officer having no authority to levy the tax, or 
one which in some other similar respect is illegal. 
Erronice / �r6wn�siy /. Lat. Erroneously; through error 
or mistake. 
Error. A mistaken judgment or incorrect belief as to the 
existence or effect of matters of fact, or a false or 
mistaken conception or application of the law. Such a

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543 
mistaken or false conception or application of the law to 
the facts of a cause as will furnish ground for a review of 
the proceedings upon a writ of error. A mistake of law, 
or false or irregular application of it, such as vitiates the 
proceedings and warrants the reversal of the judgment. 
An act involving a departure from truth or accuracy; a 
mistake; an inaccuracy; as, an error in calculation. 
State ex rel. Smith v. Smith, 197 Or. 96, 252 P.2d 550, 
555. 
Error is also used as an elliptical expression for "writ 
of error"; as in saying that error lies; that a judgment 
may be reversed on error. See Writ of error. 
See also Ignorance; Mistake; Plain error rule. 
Assig nment of errors. A specification of the errors upon 
which the appellant will rely in seeking to have the 
judgment of the lower court reversed, vacated, modified, 
or a new trial ordered. See e.g. Fed.R.App. P. 28. 
Clerical error. See Clerical error. 
Error apparent of record. Plain, fundamental error that 
goes to the foundation of the action irrespective of the 
evidence; an obvious misapprehension of the applicable 
law. Parks v. Parks, 68 App.D.C. 363, 98 F.2d 235, 236. 
Fundamental error. In appellate practice, error which 
goes to the merits of the plaintiffs cause of action, and 
which will be considered on review, whether assigned as 
error or not, where the justice of the case seems to 
require it. Error of such character as to render judg
ment void. Error so grave that, if not rectified, would 
result in denial of fundamental due process. Roberts v. 
State, Ind., 492 N.E.2d 310, 313. Error in law apparent 
on the face of the record; e.g. court lacked jurisdiction. 
Such error is presented, for example, where error in 
court's instruction to jury goes to very basis of case so 
that charge fails to state and apply law under which 
accused is prosecuted. Kemner v. State, Tex.Cr.App., 
589 S.W.2d 403, 409. See Reversible error, below. See 
also Plain error rule. 
Harmful error. Error which more probably than im
probably affected the verdict or judgment prejudicially 
to the party complaining. See Fundamental error; Re
versible error, this topic. See also Plain error rule. 
Harmless error. In appellate practice, an error commit
ted in the progress of the trial below, but which was not 
prejudicial to the rights of the party assigning it, and for 
which, therefore, the court will not reverse the judg
ment, as, where the error was neutralized or corrected 
by subsequent proceedings in the case, or where, not
withstanding the error, the particular issue was found 
in that party's favor, or where, even if the error had not 
been committed, he could not have been legally entitled 
to prevail. Error which is not sufficient in nature or 
effect to warrant reversal, modification, or retrial. Fed. 
R.Crim.P. 52 provides: "Any error, defect, irregularity 
or variance which does not affect substantial rights shall 
be disregarded." See also Harmless error doctrine. 
Invited error. In appellate practice, the principle of 
"invited error" is that if, during the progress of a cause, 
a party requests or moves the court to make a ruling 
ERROR IN VACUO 
which is actually erroneous, and the court does so, that 
party cannot take advantage of the error on appeal or 
review. 
Reversible error. In appellate practice, such an error as 
warrants the appellate court in reversing the judgment 
before it; substantial error, that which reasonably 
might have prejudiced the party complaining. See Fun
damental error, above. See also Plain error rule. 
Error coram nobis I ehr::lr kor::lm nowb::ls/. Error com
mitted in the proceedings "before us"; i.e., error as
signed as a ground for reviewing, modifying, or vacating 
a judgment in the same court in which it was rendered. 
A writ to bring before the court that pronounced judg
ment errors in matters of fact which had not been put in 
issue or passed on and were material to validity and 
regularity of legal proceeding itself. Hiawassee Lumber 
Co. v. United States, C.C.A.N.C., 64 F.2d 417, 418. See 
Coram nobis. 
Error coram vobis lehr::lr kor::lm vowb::ls/. Error in the 
proceedings "before you"; words used in a writ of error 
directed by an appellate court to the court which tried 
the cause. See Coram vobis. 
Errores ad sua principia referre, est refellere I ::Iroriyz 
red s(y)UW::l pr::lnsip(i)Y::l r::lf;}riy, est r::lfel::lriy/. To refer 
errors to their sources is to refute them. To bring 
errors to their beginning is to see their last. 
Errores scribentis nocere non debent I ::Iroriyz skr::l
bent::ls nos::lriy non deb::lntl. The mistakes of the writer 
ought not to harm. 
Error fucatus nuda veritate in multis, est probabil
ior; et srepe numero rationibus vincit veritatem er
ror I ehr::lr fyuwkeyt::ls nyuwd::l vehr::lteytiy in malt::ls est 
prob::lbiliY::lr; et siypiy n(y)uwm::lrow rreshiyown::lb::ls 
vins::lt vehr::lteyt::lm ehr::lr I. Error artfully disguised [or 
colored] is, in many instances, more probable than 
naked truth; and frequently error overwhelms truth by 
[its show of] reasons. 
Error in exercise of jurisdiction. Error in determina
tion of questions of law or fact on which the court's 
jurisdiction in particular case depends. Burgess v. Nail, 
C.C.A.Okl., 103 F.2d 37, 43. 
Error in fact. Error in fact occurs when, by reason of 
some fact which is unknown to the court and not appar
ent on the record (e.g. , infancy, or death of one of the 
parties), it renders a judgment void or voidable. Such 
occurs when some fact which really exists is unknown, 
or some fact is supposed to exist which really does not. 
Schwartz v. Kominski, 25 Ill.App.3d 789, 324 N.E.2d 91, 
93. 
Error in law. An error of the court in applying the law 
to the case on trial, e.g., in ruling on the admission of 
evidence, or in charging the jury. See also Error. 
Error in vacuo I ehr::lr in vrekyuwow I. Error in adverse 
ruling without adverse effect is "error in vacuo" which 
may subject the erring judge to criticism but not the 
case to re-trial. See Error (Harmless error).

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ERROR JURIS NOCET 
Error juris nocet I ehr�r jur�s nos�t/ . Error of law 
injures. A mistake of the law has an injurious effect; 
that is, the party committing it must suffer the conse
quences. 
Error nominis I ehr�r ilom�n�s/. Error of name. A 
mistake of detail in the name of a person; used in 
contradistinction to error de persona, a mistake as to 
identity. 
Error nominis nunquam nocet, si de identitate rei 
constat I ehr�r nom�n�s n�IJkw�m nos�t, say diy 
�dent�teytiy riyay konst�t/. A mistake in the name of a 
thing is never prejudicial, if it be clear as to the identity 
of the thing itself [where the thing intended is certainly 
known]. This maxim is applicable only where the 
means of correcting the mistake are apparent on the 
face of the instrument to be construed. 
Error of fact. See Error in fact. 
Error of law. See Error in law. 
Error qui non resistitur approbatur I ehr�r kwity non 
r�zist�t�r reprowbeyt�r I. An error which is not resisted 
or opposed is approved. 
Errors and omissions insurance. See Insurance. 
Errors excepted I ehr�rz �ksept�d/. A phrase appended 
to an account stated, in order to excuse slight mistakes 
or oversights. 
Error, writ of. See Writ of error. 
Erthmiotum I �rOmiyt�m/. In old English law, a meet
ing of the neighborhood to compromise differences 
among themselves; a court held on the boundary of two 
lands. 
Erubescit lex filios castigare parentes I �r�bes�t leks 
filiyows krest�geriy p�rentiyz/. The law blushes when 
children correct their parents. 
Escalation clause. See Escalator clause. 
Escalator clause. In union contract, a provision that 
wages will rise or fall depending on some standard like 
the cost of living index. In lease, provision that rent 
may be increased to reflect increase in real estate taxes, 
operating costs, and even increases in Consumer Price 
Index. In construction contract, clause authorizing con
tractor to increase contract price should costs of labor or 
materials increase. 
Clause in leases or contracts executed subject to price 
control regulations. Under this clause, in the case of a 
lease, the landlord is authorized to collect the maximum 
rent permissible under rent regulations in force at time 
of execution of the lease. The escalator part of the 
clause of the lease consists in the provision that in the 
event that the rent regulations are modified during the 
term of the lease, the tenant will pay the increased 
rental following the allowance thereof. See also Cost of 
living clause. 
Escambio hskrembiyow/. In old English law, a writ of 
exchange. A license in the shape of a writ, formerly 
granted to an English merchant to draw a bill of ex
change on another in foreign parts. 
544 
Escambium I �skrembiy�m/. An old English law term, 
signifying exchange. 
Escape. Leaving physical confinement without permis
sion. The departure or deliverance out of custody of a 
person who was lawfully imprisoned before he is entitled 
to his liberty by the process of law. The voluntarily or 
negligently allowing any person lawfully in confinement 
to leave. To flee from; to avoid; to get away, as to flee 
to avoid arrest. The voluntary departure from lawful 
custody by a prisoner with the intent to evade the due 
course of justice. People v. Rivera, Colo.App., 542 P.2d 
90, 92. See 18 U.S.C.A. § 751 et seq. 
Escape clause. Provision in a contract, insurance poli
cy, or other legal document permitting party or parties 
to avoid liability or performance under certain condi
tions. For example, international tariff containing 
clause that tariff will be changed if imports covered by 
such cause harm to domestic industries producing like 
goods; clause in insurance policy that provides for avoid
ance of liability when there is other valid insurance; 
clause in door-to-door sale contract giving purchaser 
three day period to cancel. 
Escape period. Term generally applied to provision in 
union contracts in connection with maintenance of 
membership clauses permitting workers to withdraw 
from the union during a certain period near the end of 
the contract period and before the start of the next 
contract period. 
Escape warrant. In English practice, this was a war
rant granted to retake a prisoner committed to the 
custody of the king's prison who had escaped therefrom. 
It was obtained on affidavit from the judge of the court 
in which the action had been brought, and was directed 
to all the sheriffs throughout England, commanding 
them to retake the prisoner and commit him to gaol 
when and where taken, there to remain until the debt 
was satisfied. 
Escapio quietus I �skeypiyow kwiyiyt�s/. In old English 
law, delivered from that punishment which by the laws 
of the forest lay upon those whose beasts were found 
upon forbidden land. 
Escapium I �skeypiy�ml . That which comes by chance 
or accident. 
Eschreta derivatur a verbo gallico eschoir, quod est 
accidere, quia accidit domino ex eventu et ex in· 
sperato I �schiyt� dehr�veyt�r ey v�rbow grel�kow 
�s(h)war, kwod est reksid�riy kway� reks�d�t dom�now 
eks �vent(y)uw et eks insep�reytow/. Escheat is derived 
from the French word "eschoir, " which signifies to hap
pen, because it falls to the lord from an event and from 
an unforeseen circumstance. 
Eschretre vulgo dicuntur qure decidentibus iis qure de 
rege tenent, cum non existit ratione sanguinis 
hreres, ad fiscum relabuntur I O)schiytiy v�lgow 
d�k�nt�r kwiy desO)dentO)bO)s ayO)s kwiy diy riyjiy tenO)nt 
k�m non O)gzistO)t rreshiyowniy sreugwO)nO)s hiriyz red 
IlSkO)m reIO)b:)ntO)r/. Those things are commonly called 
"escheats" which revert to the exchequer from a failure

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545 
of issue in those who hold of the king, when there does 
not exist any heir by consanguinity. 
Escheat / ;)s(h)chiyt/ . A reversion of property to the 
state in consequence of a want of any individual compe
tent to inherit. 
Escheat at feudal law was the right of the lord of a fee 
to re-enter upon the same when it became vacant by the 
extinction of the blood of the tenant. This extinction 
might either be per defectum sangu inis or else per delic
tum tenentis, where the course of descent was broken by 
the corruption of the blood of the tenant. As a fee 
might be holden either of the crown or from some 
inferior lord, the escheat was not always to the crown. 
The word "escheat", in this country, merely indicates 
the preferable right of the state to an estate left vacant, 
and without there being any one in existence able to 
make claim thereto. 
Escheator /;)s(h)chiyt;)r/. In English law, the name of 
an officer who was appointed in every county to look 
after the escheats which fell due to the king in that 
particular county, and to certify the same into the 
exchequer. An escheator could continue in office for 
one year only, and was not re-eligible until three years. 
There does not appear to exist any such officer at the 
present day. 
Escheat, writ of. A writ which anciently lay for a lord, 
to recover possession of lands that had escheated to him. 
Escheccum /;)s(h)chek;)m/. In old English law, a jury or 
inquisition. 
Escobedo Rule /esk;)biydow ruwll. Under this rule, 
where police investigation begins to focus on a particu
lar suspect, the suspect is in custody, the suspect re
quests and is denied counsel, and the police have not 
warned him of his right to remain silent, the accused 
will be considered to have been denied assistance of 
counsel and no statement elicited during such interroga
tion may be used in a criminal trial. Escobedo v. State 
of Illinois, 378 U.S. 478, 490, 491, 84 S.Ct. 1758, 12 
L.Ed.2d 977. See also Effective assistance of counsel; 
Miranda Rule. 
Escot / ;)sk6t1. In England, a tax formerly paid in bor
oughs and corporations towards the support of the com
munity, which is called "scot and lot." 
Escribano /eyskriybanow/. In Spanish law, an officer, 
resembling a notary in French law, who has authority to 
set down in writing, and verify by his attestation, trans
actions and contracts between private persons, and also 
judicial acts and proceedings. 
Escritura /eyskriytura/. In Spanish law, a written in
strument. Every deed that is made by the hand of a 
public escribano, or notary of a corporation or council 
(concejo), or sealed with the seal of the king or other 
authorized persons. 
Escroquerie /e(s)krowkeriy/. Fr. Fraud, swindling, 
cheating. 
Escrow. A legal document (such as a deed), money, 
stock, or other property delivered by the grantor, prom-
ESPIONAGE 
isor or obligor into the hands of a third person, to be 
held by the latter until the happening of a contingency 
or performance of a condition, and then by him deliv
ered to the grantee, promisee or obligee. A system of 
document transfer in which a deed, bond, stock, funds, 
or other property is delivered to a third person to hold 
until all conditions in a contract are fulfilled; e.g. deliv
ery of deed to escrow agent under installment land sale 
contract until full payment for land is made. 
Escrow account. A bank account generally held in the 
name of the depositor and an escrow agent which is 
returnable to depositor or paid to third person on the 
fulfillment of escrow condition; e.g. funds for payment 
of real estate taxes are commonly paid into escrow 
account of bank-mortgagor by mortgagee. 
Escrow contract. Agreement between buyer, seller, 
and escrow holder setting forth rights and responsibili
ties of each. 
Escrow deposit. See Escrow account. 
Escrowl /eskr6wll. In old English law, an escrow; a 
scroll. "And deliver the deed to a stranger, as an 
escrowl." 
Escuage / eskyuw;)j / . In feudal law , service of the shield. 
One of the varieties of tenure in knight's service, the 
duty imposed being that of accompanying the king to 
the wars for forty days, at the tenant's own charge, or 
sending a substitute. In later times, this service was 
commuted for a certain payment in money, which was 
then called "escuage certain." 2 Bl.Comm. 74, 75. 
Esketores / esk;)t6riyz/ . Robbers, or destroyers of other 
men's lands and fortunes. 
Eskipper, eskippare /esk;)per(iy)/. To ship. 
Eskippeson /(;))skip(;))s;)n/. Shippage, or passage by sea. 
Spelled, also, "skippeson. " 
Eslisors / ;)layz;)rz/ . See Elisors. 
Esne /ezniy/. In old English law, a hireling of servile 
condition. 
Esnecy / e(s)n;)siy / . Seniority; the condition or right of 
the eldest; the privilege of the eldest-born. Particularly 
used of the privilege of the eldest among coparceners to 
make a first choice of purparts upon a voluntary parti
tion. 
ESOP. See Empl oyee Stock Ownership Plan. 
Espera / esp;)r;)/. A period of time fixed by law or by a 
court within which certain acts are to be performed, e.g., 
the production of papers, payment of debts, etc. 
Espionage. Espionage, or spying, has reference to the 
crime of "gathering, transmitting or losing" information 
respecting the national defense with intent or reason to 
believe that the information is to be used to the injury of 
the United States, or to the advantage of any foreign 
nation. 18 U.S.C.A. § 793; Rosenberg v. United States, 
346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1609. See Internal 
security acts.

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ESPIONAGE ACT 
Espionage Act. Federal law which punishes espionage, 
spying, and related crimes. 18 U.S.c.A. § 793 et seq. 
Esplees / �spliyz/. An old term for the products which 
the ground or land yields; as the hay of the meadows, 
the herbage of the pasture, corn of arable fields, rent 
and services, etc. The word has been anciently applied 
to the land itself. 
Espousals / �spawz�lz/. A mutual promise between a 
man and a woman to marry each other at some other 
time. It differs from a marriage, because then the 
contract is completed. 
Espurio /espuriyow/. In Spanish law, a spurious child; 
one begotten on a woman who has promiscuous inter
course with many men. 
Esq. Abbreviation for Esquire. 
Esquire /eskway(�)r/�skway(�)r/. In English law, a title 
of dignity next above gentleman, and below knight. 
Also a title of office given to sheriffs, serjeants, and 
barristers at law, justices of the peace, and others. 
In United States, title commonly appended after name 
of attorney; e.g. John J. Jones, Esquire. 
Essence. That which is indispensable. The gist or sub
stance of any act; the vital constituent of a thing; that 
without which a thing cannot be itself. Norman v. 
Department of Labor and Industries, 10 Wash.2d 180, 
116 P.2d 360, 362. 
Essence of the contract. Any condition or stipulation 
in a contract which is mutually understood and agreed 
by the parties to be of such vital importance that a 
sufficient performance of the contract cannot be had 
without exact compliance with it is said to be "of the 
essence of the contract." See also Basis of bargain. 
Essence test. Under this test arbitrator's interpretation 
of collective bargaining agreement must be upheld if it 
can in any rational way be derived from the agreement, 
viewed in light of its language, its context, and any 
other indicia of the parties' intention. Carmichaels 
Area School Dist. v. Carmichaels Area Ed. Ass'n, 37 
Pa.Cmwlth. 141, 389 A.2d 1203, 1205. 
Essendi quietum de tolonio / �senday kwiyiyt�m diy 
t�16wniyow /. A writ to be quit of toll; it lies for citizens 
and burgesses of any city or town who, by charter or 
prescription, ought to be exempted from toll, where the 
same is exacted of them. 
Essential. Indispensably necessary; important in the 
highest degree; requisite. That which is required for 
the continued existence of a thing. 
Essential governmental duties. Those duties which 
framers of Constitution intended each member of union 
would assume in functioning under form of government 
guaranteed by Constitution. Commissioner of Internal 
Revenue v. Stilwell, C.C.A.7, 101 F.2d 588, 591. 
Esso in, v. / �s6yn/. In old English practice, to present or 
offer an excuse for not appearing in court on an appoint
ed day in obedience to a summons; to cast an essoin. 
546 
This was anciently done by a person whom the party 
sent for that purpose, called an "essoiner." 
Essoin, n. /�s6yn/. In old English law, an excuse for not 
appearing in court at the return of the process. Presen
tation of such excuse. Essoin was not now allowed at all 
in personal actions. 3 BI.Comm. 278, note. 
Essoin day / �s6yn dey /. In England, formerly the first 
general return-day of the term, on which the courts sat 
to receive essoins, i.e., excuses for parties who did not 
appear in court, according to the summons of writs. 3 
Bl.Comm.278. By St. 11 Geo. IV, and 1 Wm. IV, c. 70, 
§ 6, these days were done away with, as a part of the 
term. 
Essoin de malo villre / �s6yn diy mrelow viliy /. When 
the defendant is in court the first day; but gone without 
pleading, and being afterwards surprised by sickness, 
etc., cannot attend, but sends two essoiners, who openly 
protest in court that he is detained by sickness in such a 
village, that he cannot come pro lucrari and pro perdere; 
and this will be admitted, for it falls on the plaintiff to 
prove whether the essoin is true or not. 
Essoiniator / �s6yniyeyt�r /. A person who made an es
soin. 
Essoin roll /�s6yn rowl!. In England, a roll upon which 
essoins were formerly entered, together with the day to 
which they were adjourned. 
Establish. This word occurs frequently in the Constitu
tion of the United States, and it is there used in differ
ent meanings: (1) To settle firmly, to fix unalterably; as 
to establish justice, which is the avowed object of the 
Constitution. (2) To make or form; as to establish 
uniform laws governing naturalization or bankruptcy. 
(3) To found, to create, to regulate; as: "Congress shall 
have power to establish post-offices." (4) To found, 
recognize, confirm, or admit; as: "Congress shall make 
no law respecting an establishment of religion." See 
Establishment clause. (5) To create, to ratify, or confirm, 
as: "We, the people . . . do ordain and establish this 
Constitution." Ware v. U. S., 71 U.S. (4 Wall.) 617, 18 
L.Ed. 389. See also Establishment clause. 
To settle, make or fix firmly; place on a permanent 
footing; found; create; put beyond doubt or dispute; 
prove; convince. Wells Lamont Corp. v. Bowles, Em. 
App., 149 F.2d 364, 366. To enact permanently. To 
bring about or into existence. 
Establishment. An institution or place of business, with 
its fixtures and organized staff. Abnie v. Ford Motor 
Co., Ohio Com.PI., 195 N.E.2d 131, 135. State of being 
established. 
Establishment clause. That provision of the First 
Amendment to U.S. Constitution which provides that 
"Congress shall make no law respecting an establish
ment of religion, or prohibiting the free exercise thereof 
. ". Such language prohibits a state or the feder
al government from setting up a church, or passing laws 
which aid one, or all, religions, or giving preference to 
one religion, or forcing belief or disbelief in any religion. 
Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504,

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547 
91 L.Ed. 711; McCollum v. Brd. of Education, 333 U.S. 
203, 68 S.Ct. 461, 92 L.Ed. 649. See also Freedom of 
religion. 
Estadal I estaoaI/. In Spanish America, a measure of 
land of sixteen square varas, or yards. 
Estadia (or Sobrestadia) I estaoiya (sowbreystaoiya)/. 
In Spanish law, delay in a voyage, or in the delivery of 
cargo, caused by the charterer or consignee, for which 
demurrage is payable. The time for which the party 
who has chartered a vessel, or is bound to receive the 
cargo, has to pay demurrage on account of his delay in 
the execution of the contract. 
Est aliquid quod non oportet etiam si licet; quicquid 
vero non licet certe non oportet I est rel;;,kwid kwod 
non ;;,port;;,t eshiy;;,m say lis;;,t; kwikwid virow non lis;;,t 
s;}rtiy non ;;,port;;,t/. There is that which is not proper, 
even though permitted; but whatever is not permitted is 
certainly not proper. 
Estandard I;;,strend;;,rd/. L. Fr. A standard (of weights 
and measures). So called because it stands constant and 
immovable, and hath all other measures coming towards 
it for their conformity. 
Est ascavoir ley asavwohr I. It is to be understood or 
known; "it is to-wit." 
Estate. The degree, quantity, nature, and extent of 
interest which a person has in real and personal proper
ty. An estate in lands, tenements, and hereditaments 
signifies such interest as the tenant has therein. 2 
Bl.Comm. 103. The condition or circumstance in which 
the owner stands with regard to his property. Boyd v. 
Sibold, 7 Wash.2d 279, 109 P.2d 535, 539. In this sense, 
"estate" is commonly used in conveyances in connection 
with the words "right," "title," and "interest," and is, in 
a great degree, synonymous with all of them. 
When used in connection with probate proceedings, 
term encompasses totality of assets and liabilities of 
decedent, including all manner of property, real and 
personal, choate or inchoate, corporeal or incorporeal. 
In re Adams' Estate, 148 C.A.2d 319, 306 P.2d 623, 625. 
The total property of whatever kind that is owned by 
a decedent prior to the distribution of that property in 
accordance with the terms of a will, or, when there is no 
will, by the laws of inheritance in the state of domicile 
of the decedent. It means, ordinarily, the whole of the 
property owned by anyone, the realty as well as the 
personalty. As used in connection with the administra
tion of decedents' estates, term includes property of a 
decedent, trust or other person as such property exists 
from time to time during the administration, and hence 
may include probate assets as well as property passing 
by intestacy. Uniform Probate Code, § 1-2 01(11). 
In its broadest sense, the social, civic, or political 
condition or standing of a person; or a class of persons 
considered as grouped for social, civic, or political pur
poses. 
ESTATE 
Common Law Classifications 
Estates may be either absolute or conditional. An 
absolute estate is a full and complete estate, or an estate 
in lands not subject to be defeated upon any condition. 
In this phrase the word "absolute" is not used legally to 
distinguish a fee from a life-estate, but a qualified or 
conditional fee from a fee simple. A conditional estate 
is one, the existence of which depends upon the happen
ing or not happening of some uncertain event, whereby 
the estate may be either originally created, or enlarged, 
or finally defeated. Estates are also classed as executed 
or executory. The former is an estate whereby a present 
interest passes to and resides in the tenant, not depend
ent upon any subsequent circumstance or contingency. 
They are more commonly called "estates in possession." 
2 Bl.Comm. 162. An estate where there is vested in the 
grantee a present and immediate right of present or 
future enjoyment. An executory estate is an estate or 
interest in lands, the vesting or enjoyment of which 
depends upon some future contingency. Such estate 
may be an executory devise, or an executory remainder , 
which is the same as a contingent remainder, because no 
present interest passes. A contingent estate is one 
which depends for its effect upon an event which mayor 
may not happen, as, where an estate is limited to a 
person not yet born. Conventional estates are those 
freeholds not of inheritance or estates for life, which are 
created by the express acts of the parties, in contradis
tinction to those which are legal and arise from the 
operation of law. A dominant estate, in the law of 
easements, is the estate for the benefit of which the 
easement exists, or the tenement whose owner, as such, 
enjoys an easement over an adjoining estate. An expect
ant estate is one which is not yet in possession, but the 
enjoyment of which is to begin at a future time; a 
present or vested contingent right of future enjoyment. 
Examples are remainders and reversions. A future es
tate is an estate which is not now vested in the grantee, 
but is to commence in possession at some future time. 
It includes remainders, reversions, and estates limited to 
commence in futuro without a particular estate to sup
port them, which last are not good at common law, 
except in the case of chattel interests. 2 Bl.Comm. 165. 
An estate limited to commence in possession at a future 
day, either without the intervention of a precedent es
tate, or on the determination by lapse of time, or other
wise, of a precedent estate created at the same time. A 
particular estate is a limited estate which is taken out of 
the fee, and which precedes a remainder; as an estate 
for years to A., remainder to B. for life; or an estate for 
life to A., remainder to B. in tail. This precedent estate 
is called the "particular estate," and the tenant of such 
estate is called the "particular tenant." 2 Bl.Comm. 
165. A servient estate, in the law of easements, is the 
estate upon which the easement is imposed or against 
which it is enjoyed; an estate subjected to a burden or 
servitude for the benefit of another estate. A settled 
estate, in English law, is one created or limited under a 
settlement; that is, one in which the powers of alien
ation, devising, and transmission according to the ordi
nary rules of descent are restrained by the limitations of

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ESTATE 
the settlement. A vested estate is one in which there is 
an immediate right of present enjoyment or a present 
fixed right of future enjoyment; an estate as to which 
there is a person in being who would have an immediate 
right to the possession upon the ceasing of some inter
mediate or precedent estate. An original estate is the 
first of several estates, bearing to each other the relation 
of a particular estate and a reversion. An original 
estate is contrasted with a derivative estate; and a 
derivative estate is a particular interest carved out of 
another estate of larger extent. 
"Estate" and "heirs" are not equivalent terms, Martin 
v. Hale, 167 Tenn. 438, 71 S.W.2d 211, 214; Abraham v. 
Abraham, 245 App.Div. 302, 280 N.Y.S. 825. 
As to Homestead; Movable; Real; Residuary; Sepa
rate, and Trust (estate), see those titles. See also Aug
mented estate; Beneficial estate; Gross estate; Joint 
estate; Landed estate or prope rty; Life estate; Net es
tate; Resid uary estate; Vested estate. 
For the names and definitions of the various kinds of 
estates in land, see the different titles below. 
Bankruptcy estate. See Bankruptcy proceedings. 
Equitable estate. An interest recognized only in equity 
such as the beneficial interest of a beneficiary of a trust. 
Future estate. An estate or interest in which title or 
possession or both is deferred to a future time. See 
Future interests. 
Legal estate. An estate or interest in property which is 
recognized and enforced in law, not merely in equity. 
Qualified estate. Interests in real property which are 
not absolute and unconditional including fee tail, estates 
on condition, estates on limitation, and estates on condi
tionallimitation. Carpender v. City of New Brunswick, 
135 N.J.Eq. 397, 39 A.2d 40, 43. 
Small estate. In some jurisdictions, there is an informal 
procedure for administration of small estates of dece
dents less structured than ordinary probate and admin
istration. Normally, the services of an attorney are not 
required. Uniform Probate Code, § 3-1201 et seq. 
Estate ad remanentiam /;}steyt red rem;}nEmsh(iy);}m/. 
An estate in fee-simple. 
Estate at sufferance. The interest of a tenant who has 
come rightfully into possession of lands by permission of 
the owner, and continues to occupy the same after the 
period for which he is entitled to hold by such permis
sion. 2 Bl.Comm. 150. The estate arises where one 
comes into possession of land by lawful title, but keeps it 
afterwards without any title at all, and the original 
entry need not have been under lease or as a tenant of 
the dispossessing landlord. 
Estate at will. A species of estate less than freehold, 
where lands and tenements are let by one man to 
another, to have and to hold at the will of the lessor; 
and the tenant by force of this lease obtains possession. 
2 BLComm. 145. Or it is where lands are let without 
limiting any certain and determinate estate. The estate 
arises where lands or tenements are expressly demised 
548 
by one person to another to be held during the joint 
wills of both parties, or it may arise by implication of 
law wherever one person is put in possession of anoth
er's land with the owner's consent, but under an agree
ment which does not suffice to create in the tenant an 
estate of freehold or for years. 
Estate by elegit. See Elegit. 
Estate by entirety. See Estate by the entirety. 
Estate by purchase. One acquired in any other method 
than descent. See also Purchase. 
Estate by statute merchant. In England, an estate 
whereby the creditor, under the custom of London, re
tained the possession of all his debtor's lands until his 
debts were paid. See Statute (Statute-merchant). 
Estate by statute staple. See Staple (Statute sta ple}. 
Estate by the curtesy. See Curtesy. 
Estate by the entirety. Called also estate in entirety, or 
estate by the entireties. An estate in joint tenancy, plus 
the unity of the marital relation. A form of co-owner
ship of realty or personalty held by husband and wife in 
which there is unity of estate, unity of possession and 
unity of control of entire property, and on death of one, 
survivor takes estate under original conveyance. In re 
Gallagher's Estate, 352 Pa. 476, 43 A.2d 132, 133. A 
common-law estate, based on the doctrine that husband 
and wife are one, and that a conveyance of real property 
to husband and wife creates but one estate. An estate 
held by husband and wife together so long as both live, 
and, after the death of either, by the survivor. It is an 
estate held by husband and wife by virtue of a title 
acquired by them jointly after marriage. A creature of 
the common law created by legal fiction based wholly on 
the common-law doctrine that husband and wife are 
one, and hence a conveyance to husband and wife cre
ated only one estate, and each was owner of the whole 
estate, and neither could dispose of it without the con
sent of the other, and on the death of one survivor was 
the owner in fee simple. Alexander v. Alexander, 154 
Or. 317, 58 P.2d 1265, 1270, 1271. 
Type of joint estate which may be held only by two 
persons who are married to each other at the time that 
the estate is created and which does not admit of parti
tion, though, on divorce, it automatically becomes an 
estate in common unless the parties provide otherwise. 
An "estate by entireties" resembles a "joint tenancy" 
in that there is a right of survivorship in both, but such 
an estate is distinguishable from a joint tenancy in that 
the latter may be invested in any number of natural 
persons each of whom is seized of an undivided moiety of 
the whole, whereas a "tenancy by entirety" is vested in 
two persons only, who in law are regarded as only one, 
and each of whom becomes seized of the estate as a 
whole. Heffner v. White, 113 Ind.App. 296, 45 N.E.2d 
342, 346. 
See also Community property; Entirety; Tenancy (Joint 
tenancy).

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549 
Estate duty. A duty formerly imposed in England (act 
of 1894) upon the principal value of all property which 
passed on death. Such duty was replaced in 1975 by a 
capital transfer tax. 
Estate for life. See Life estate. 
Estate for years. A species of estate less than freehold, 
where a man has an interest in lands and tenements, 
and a possession thereof, by virtue of such interest, for 
some fixed and determinate period of time; as in the 
case where lands are leased for the term of a certain 
number of years, agreed upon between the lessor and 
the lessee. Blackstone calls this estate a "contract" for 
the possession of lands or tenements for some determi
nate period. 2 Bl.Comm. 140. Estates for years em
brace all terms limited to endure for a definite and 
ascertained period, however short or long the period 
may be; they embrace terms for a fixed number of 
weeks or months or for a single year, as well as for any 
definite number of years, however great. Also called 
"tenancy for a term". 
Estate from period to period. An estate continuing for 
successive periods of a year, or successive periods of a 
fraction of a year, unless it is terminated. Pitney-Bowes 
Postage Meter Co. v. United States, D.C.Conn., 57 
F.Supp. 365, 366. Also called "tenancy from period to 
period"; or "periodic estate". 
Estate from year to year. An example of an "estate for 
years" (q.v.). It exists in cases where the parties stipu
late for it, and also where the parties by their conduct 
have placed themselves in the relation of landlord and 
tenant without adopting any other term. If a tenant 
has been allowed to hold over after the expiration of his 
term in such a way as to preclude the possibility of his 
becoming a tenant on sufferance, it is a tenancy from 
year to year. It was originally a development of a 
tenancy at will, by which the tenancy was terminable 
only at the time of the year at which it began, and on 
notice. 
Estate in common. An estate in lands held by two or 
more persons, with interests accruing under different 
titles; or accruing under the same title, but at different 
periods; or conferred by words of limitation importing 
that the grantees are to take in distinct shares. See also 
Tenancy (Tenancy in common). 
Estate in coparcenary l::lsteyt ::In kowpars(::l)n::lriy/. See 
Coparcenary . 
Estate in dower. See Dower. 
Estate in expectancy. One which is not yet in posses
sion, but the enjoyment of which is to begin at a future 
time. An estate giving a present or vested contingent 
right of future enjoyment. One in which the right to 
pernancy of the profits is postponed to some future 
period. Such are estates in remainder and reversion. 
Estate in fee simple. See Fee simple. 
Estate in fee-tail. See Tail, estate in. 
Estate in joint tenancy. See Tenancy. 
ESTATES OF THE REALM 
Estate in lands. Property one has in lands, tenements 
or hereditaments, or conditions or circumstances in 
which tenant stands as to his property. Tallman v. 
Eastern Illinois & Peoria R. Co., 379 Ill. 441, 41 N.E.2d 
537, 540. See Estate. 
Estate in remainder. See Remainder. 
Estate in reversion. See Reversion or estate in reversion. 
Estate in severalty I ::lsteyt ::In sevr::lltiy I. An estate held 
by a person in his own right only, without any other 
person being joined or connected with him in point of 
interest, during his estate. This is the most common 
and usual way of holding an estate. 2 Bl.Comm. 179. 
Estate in vadio I ::lsteyt ::In vrediyow I. An estate in gage 
or pledge. 2 Bl.Comm. 157. See Mortgage. 
Estate less than freehold. An estate for years, estate at 
will, or estate at sufferance. 
Estate of freehold. See Freehold. 
Estate of inheritance. An estate which may descend to 
heirs. Administration & Trust Co. v. Catron, 171 Tenn. 
268, 102 S.W.2d 59, 60. A species of freehold estate in 
lands, otherwise called a "fee," where the tenant is not 
only entitled to enjoy the land for his own life, but 
where, after his death, it is passed by the law upon the 
persons who successively represent him in perpetuum, 
according to a certain established order of descent. See 
Estate. 
Estate on condition. See Estate upon condition. 
Estate on conditional limitation. An estate conveyed 
to one person so that, upon occurrence or failure of 
occurrence of some contingent event, whether condition
al or limitative, the estate shall depart from original 
grantee and pass to another. Carpender v. City of New 
Brunswick, 135 N.J.Eq. 397, 39 A.2d 40, 43. 
Estate on limitation I ::lsteyt on lim::lteysh::ln/. An estate 
originated by the use of words denoting duration of time, 
such as while, during, so long as, and the like and when 
designated limitative event happens, such estate ends 
naturally without any re-entry and property reverts to 
grantor. Carpender v. City of New Brunswick, 135 
N.J.Eq. 397, 39 A.2d 40, 43. Sometimes referred to as 
"base fee", "qualified fee", "determinable fee", or "fee 
simple defeasible". Lehigh Valley R. Co. v. Chapman, 
35 N.J. 177, 171 A.2d 653, 657. 
Estate planning. That branch of the law which, in 
arranging a person's property and estate, takes into 
account the laws of wills, taxes, insurance, property, and 
trusts so as to gain maximum benefit of all laws while 
carrying out the person's own wishes for the disposition 
of his property upon his death. 
Estate pur autre vie I ::lsteyt p::lr 6wtr::l vay I. See Pur 
autre vie. 
Estates of the realm. The lords spiritual, the lords 
temporal, and the commons of Great Britain. 1 Bl. 
Comm. 153. Sometimes called the "three estates." In
asmuch as the lords spiritual had no separate assembly 
or negative in their political capacity, some authorities

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ESTATES OF THE REALM 
reduce the estates in Great Britain to two, the lords and 
commons. Generally in feudal Europe there were three 
estates: the clergy, nobles, and commons. In England 
(until about the 14th century) the three estates of the 
realm were the clergy, barons, and knights. In legal 
practice the lords spiritual and lords temporal are usual
ly collectively designated under the one name lords. 
Estate subject to a conditional limitation. The dis
tinction between an estate upon condition subsequent 
and an "estate subject to a conditional limitation" is 
that in fo rmer words creating condition do not originally 
limit term, but merely permit its termination upon 
happening of contingency, while in latter words creating 
it limit continuation of estate to time preceding happen
ing of contingency. Johnson v. Lane, 199 Ark. 740, 135 
S.W.2d 853,866. 
Estate tail. See Tail, estate in. 
Estate tail, quasi. When a tenant for life grants his 
estate to a man and his heirs, as these words, though apt 
and proper to create an estate tail, cannot do so, because 
the grantor, being only tenant for life, cannot grant in 
perpetuum, therefore they are said to create an estate 
tail quasi, or improper. 
Estate tax. A tax imposed on the right to transfer 
property by death. Thus, an estate tax is levied on the 
decedent's estate and not on the heir receiving the 
property. A tax levied on right to transmit property, 
while "inheritance tax" is levied on right to receive 
property. Allen v. Flournoy, 26 Cal.App.3d 774, 103 
Cal.Rptr. 275, 277. The tax is based on value of the 
whole estate less certain deductions. I.R.C. § 2001 et 
seq. See also Alternate valuation date; Inh eritance tax; 
Unified transfer tax. 
Many states have adopted the "Uniform Interstate 
Compromise of Death Taxes Act" or the "Uniform Inter
state Arbitration of Death Taxes Act." 
Estate upon condition. An estate in lands, the exist
ence of which depends upon the happening or not hap
pening of some uncertain event, whereby the estate may 
be either originally created, or enlarged, or finally de
feated. 2 Bl.Comm. 151. An estate having a qualifica
tion annexed to it, by which it may, upon the happening 
of a particular event, be created, or enlarged, or de
stroyed. United States v. 1,010.8 Acres, More or Less, 
Situate in Sussex County, Del., D.C.Del., 56 F.Supp. 120, 
127. 
Estate upon condition expressed. An estate granted, 
either in fee-simple or otherwise, with an express quali
fication annexed, whereby the estate granted shall ei
ther commence, be enlarged, or be defeated upon per
fo rmance or breach of such qualification or condition. 2 
Bl.Comm. 154. An estate which is so expressly defined 
and limited by the words of its creation that it cannot 
endure for any longer time than till the contingency 
happens upon which the estate is to fail. 
Estate upon condition implied. An estate having a 
condition annexed to it inseparably from its essence and 
550 
constitution, although no condition be expressed in 
words. 2 Bl.Comm. 152. 
Est autem jus publicum et privatum, quod ex natu
ralibus prreceptis aut gentium, aut civilibus est col
lectum; et quod in jure scripto jus appellatur, id in 
lege anglire rectum esse dicitur / est ot�m j;}S p;}bbk�m 
et pr�veyt�m, kwod eks n,i!ty�reyl�b�s pr�sepbs ot 
jensh(iy)�m ot s�vil�b�s est k�lekt�m; et kw6d in juriy 
skriptow j;}S rep�leyt�r, id in liyjiy rengliyiy rekt�m est 
dis�t�r/. Public and private law is that which is collect
ed from natural precepts, on the one hand of nations, on 
the other of citizens; and that which in the civil law is 
called "jus," that, in the law of England, is said to be 
right. 
Est autem vis legem simulans / est ot�m vis liyj�m 
simy�lrenz/. Violence may also put on the mask of law. 
Estendard, estendart, or standard /(�)strend�rd/. An 
ensign for horsemen in war. 
Ester in judgment. L. Fr. To appear before a tribunal 
either as plaintiff or defendant. 
Estimate. A valuing or rating by the mind, without 
actually measuring, weighing, or the like. A rough or 
approximate calculation only. United States v. Foster, 
C.C.A.lowa, 131 F.2d 3, 7. Act of appraising or valuing. 
Determination of approximate cost or return. 
This word is used to express the mind or judgment of 
the speaker or writer on the particular subject under 
consideration. It implies a calculation or computation, 
as to estimate the gain or loss of an enterprise. 
Estimated tax. Federal and state tax laws require a 
quarterly payment of estimated taxes due from corpora
tions, trusts, estates, non-wage employees, and wage 
employees with income not subject to withholding. Indi
viduals must remit at least 100% of their prior year tax 
liability or 90% of their current year tax liability in 
order to avoid an underpayment penalty. Corporations 
must pay at least 90% of their current year tax liability 
in order to avoid an underpayment penalty. Additional 
taxes due, if any, are paid on taxpayer's annual tax 
return. I.R.C. § 6015. See also Declaration of estimated 
tax. 
Estimated useful life. The period over which an asset 
will be used by a particular taxpayer. Although such 
period cannot be longer than the estimated physical life 
of an asset, it could be shorter if the taxpayer does not 
intend to keep the asset until it wears out. Assets such 
as goodwill do not have an estimated useful life. The 
estimated useful life of an asset is essential in calculat
ing depreciation and amortization as well as any allow
able investment tax credit. 
Estin doctrine. The principle of law enunciated in 
Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 
to the effect that a divorce decree is divisible and, while 
full faith and credit must be given to a decree as to the 
termination of the marriage, no full faith and credit is 
required as to that portion of the decree ordering sup
port for the wife unless the court entering the order had 
personal jurisdiction of the husband.

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551 
Est ipsorum legislatorum tanquam viva vox / est 
ipsor;}m h�j;}sl;}tor;}m tre1Jkw;}m vayv;} voks/. The voice 
of the legislators themselves is like the living voice; that 
is, the language of a statute is to be understood and 
interpreted like ordinary spoken language. 
Estop. To stop, bar, or impede; to prevent; to preclude. 
See Embargo; Estoppel; Injunction. 
Estoppel / ;}stop;}l/ . "Estoppel" means that party is pre
vented by his own acts from claiming a right to detri
. ment of other party who was entitled to rely on such 
conduct and has acted accordingly. Graham v. Asbury, 
112 Ariz. 184, 540 P.2d 656, 658. A principle that 
provides that an individual is barred from denying or 
alleging a certain fact or state facts because of that 
individual's previous conduct, allegation, or deniaL A 
doctrine which holds that an inconsistent position, atti
tude or course of conduct may not be adopted to loss or 
injury of another. Brand v. Farmers Mut. Protective 
Ass'n of Texas, Tex.Civ.App., 95 S.W.2d 994, 997. See 
Restatement, Agency, Second, § 8B. 
Estoppel is a bar or impediment which precludes 
allegation or denial of a certain fact or state of facts, in 
consequence of previous allegation or denial or conduct 
or admission, or in consequence of a final adjudication of 
the matter in a court of law. It operates to put party 
entitled to its benefits in same position as if thing 
represented were true. May v. City of Kearney, 145 
Neb. 475, 17 N.W.2d 448, 458. Under law of "estoppel" 
where one of two innocent persons must suffer, he 
whose act occasioned Iossmustoear it. Sackenreufuer 
·v.Winst� Tex.Ci� .App:13·7'['W .2d 93, 96. Elements 
or essentials of estoppel include change of position of 
parties so that party against whom estoppel is invoked 
has received a profit or benefit or party invoking estop
pel has changed his position to his detriment .. 
Estoppel is or may be based on acceptance of benefits, 
Harjo v. Johnston, 187 OkL 561, 104 P.2d 985, 992, 998; 
actual or constructive fraudulent conduct, Peterson v. 
Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249, 252; admis
sions or denials by which another is induced to act to his 
injury, Wabash Drilling Co. v. Ellis, 230 Ky. 769, 20 
S.W.2d 1002, 1004; agreement on and settlement of 
facts by force of entering into contract, Masterson v. 
Bouldin, Tex.Civ.App., 151 S.W.2d 301, 307; assertion of 
facts on which another relies; assumption of position 
which, if not maintained, would result in injustice to 
another; concealment of facts, Greer v. Franklin Life 
Ins. Co., Tex.Civ.App., 109 S.W.2d 305, 315; conduct or 
acts amounting to a representation or a concealment; 
consent to copyright infringement, whether express or 
implied from long acquiescence with knowledge of the 
infringement, Edwin L. Wiegand Co. v. Harold E. Trent 
Co., C.C.A.Pa., 122 F.2d 920, 925; election between 
rights or remedies, Mason & Mason v. Brown, Tex.Civ. 
App., 182 S.W.2d 729, 733; inaction, Hankins v. Wad
dell, 26 Tenn.App. 71, 167 S.W.2d 694, 696; laches; 
language or conduct which has induced another to act, 
Brown v. Federal Land Bank of Houston, Tex.Civ.App., 
180 S.W.2d 647, 652. 
ESTOPPEL 
Estoppels at common law are sometimes said to be of 
three kinds: (1) by deed; (2) by matter of record; (3) by 
matter in pais. The first two are also called legal 
estoppels, as distinguished from the last kind, known as 
equitable estoppels. 
For Acquiescence, estoppel by; Collateral attack; Col
lateral estoppel doctrine; Contract estoppel by; Deed, 
estoppel by; Direct estoppel; Election, estoppel by; Eq
uitable estoppel; In pais, estoppel; Judgment, estoppel by; 
Judicial estoppel; Laches, estoppel by; Legal estoppel; 
Negligence, estoppel by; Promis sory estoppel; Quasi es
toppel; Record, estoppel by; Representation, estoppel by; 
Silence, estoppel by; and Verdict, estoppel by, see those 
titles. See also Authority (Authority by estoppel). 
Acts and declarations. An "estoppel by acts and decla
rations" is such as arises from the acts and declarations 
of a person by which he designedly induces another to 
alter his position injuriously to himself. 
Equitable estoppel. (See Estoppel in pais, below). 
Estoppel by deed. A grantor in a warranty deed who 
does not have title at the time of the conveyance but 
who subsequently acquires title is estopped from deny
ing that he had title at the time of the transfer and such 
after-acquired title inures to the benefit of the grantee 
or his successors. See also Deed, estoppel by. 
Estoppel by judgment. Term means that when a fact 
has been agreed on, or decided in a court of record, 
neither of the parties shall be allowed to call it in 
question, and have it tried over again at any time 
thereafter, so long as judgment or decree stands unre
versed. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 
524, 529. Final adjudication of material issue by a court 
of competent jurisdiction binds parties in any subse
quent proceeding between or among them, irrespective 
of difference in forms or causes of action. Mansker v. 
Dealers Transport Co., 160 Ohio St. 255, 116 N.E.2d 3, 6. 
Sometimes referred to as issue preclusion. See also 
Collateral estoppel doctrine; JUdgment, estoppel by. 
Compare Res (Res judicata). 
Estoppel certificate. A signed statement by a party, 
such as a tenant or a mortgagee, certifying for the 
benefit of another party that a certain statement of facts 
is correct as of the date of the statement, such as that a 
lease exists, that there are no defaults and that rent is 
paid to a certain date. Delivery of the statement by the 
tenant prevents (estops) the tenant from later claiming a 
different state of facts. 
Estoppel in pais. The doctrine by which a person may 
be precluded by his act or conduct, or silence when it is 
his duty to speak, from asserting a right which he 
otherwise would have had. Mitchell v. McIntee, 15 
Or.App. 85, 514 P.2d 1357, 1359. The doctrine rests 
upon principle that when a person by his acts causes 
another to change his condition to his detriment, person 
performing such acts is precluded from asserting a right 
which he otherwise might have had. Peplinski v. Camp
bell, 37 Wash.2d 857, 226 P.2d 211, 213. See also Eq
uitable estoppel.

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ESTOPPEL 
Misrepresentation. See Representation, estoppel by. 
Pleading. Pleader must allege and prove not only that 
person sought to be estopped made misleading state
ments and representations but that pleader actually 
believed and relied on them and was misled to his injury 
thereby. Stanolind Oil & Gas Co. v. Midas Oil Co., 
Tex.Civ.App., 173 S.W.2d 342, 345. 
Under rules practice in most states, and in the federal 
courts, estoppel is an affirmative defense which must be 
pleaded. Fed.R. Civil P. 8(c). 
Ratification distinguished. The substance of "estoppel" 
is the inducement of another to act to his prejudice. 
The substance of "ratification" is confirmation after 
conduct. 
By ratification party is bound because he intended to 
be, while under "estoppel" he is bound because other 
party will be prejudiced unless the law treats him as 
legally bound. Carlile v. Harris, Tex.Civ.App., 38 
S.W.2d 622. See Ratification. 
Res judicata distinguished. A prior judgment between 
same parties, which is not strictly res judicata because 
based upon different cause of action, operates as an 
"estoppel" only as to matters actually in issue or points 
controverted. .tEtna Life Ins. Co. of Hartford, Conn. v. 
Martin, C.C.A.Ark., 108 F.2d 824, 827; Cunningham v. 
Oklahoma City, 188 Okl. 466, 110 P.2d 11 02, 11 04. In a 
later action upon a different cause of action a judgment 
operates as an "estoppel" only as to such issues in 
second action as were actually determined in the first 
action. Lorber v. Vista Irr. Dist., C.C.A.Cal., 127 F.2d 
628, 634. The doctrine of "res judicata" is a branch of 
law of "estoppel". Krisher v. McAllister, 71 Ohio App. 
58, 47 N.E.2d 817, 819. The plea of "res judicata" is in 
its nature an "estoppel" against the losing party from 
again litigating matters involved in previous action, but 
the plea does not have that effect as to matters transpir
ing subsequently. Fort Worth Stockyards Co. v. Brown, 
Tex.Civ.App., 161 S.W.2d 549, 555. See Res (Res judica
ta). 
Waiver distinguished. Waiver is voluntary surrender or 
relinquishment of some known right, benefit or advan
tage; estoppel is the inhibition to assert it. In insur
ance law, however, the two terms are commonly used 
interchangeably. See Waiver. 
Estover /�st6wv�r/. The right or privilege which a 
tenant has to furnish himself with so much wood from 
the demised premises as may be sufficient or necessary 
for his fuel, fences, and other agricultural operations. 2 
Bl.Comm. 35. 
An allowance made to a person out of an estate or 
other thing for his or her support, as for food and 
raiment. 
An allowance (more commonly called "alimony") 
granted to a woman divorced a mensa et thoro, for her 
support out of her husband's estate. 1 Bl.Comm. 441. 
Estoveria sunt ardendi, arandi, construendi et clau
dendi /est�viriy� s�nt ardenday, �rrenday, konstruwen-
552 
day et klodenday / . Estovers are of fire-bote, plow-bote, 
house-bote, and hedge-bote. 
Estoveriis habendis / est�viriy�s h�bend�s/ . A writ 
(now obsolete) for a wife judicially separated to recover 
her alimony or estovers. 
Est quiddam perfectius in rebus licitis / est kwid�m 
p�rfeksh(iy)�s in riyb�s lis�t�s/. There is something 
more perfect in things allowed. 
Estray / �strey / . An estray is an animal that has es
caped from its owner, and wanders or strays about; 
usually defined, at common law, as a wandering animal 
whose owner is unknown. An animal cannot be an 
estray when on the range where it was raised, and 
permitted by its owner to run, and especially when the 
owner is known to the party who takes it up. 
The term is also used of flotsam at sea. 
Estreat, v. / �striyt/. To take out a forf eited recogni
zance from the recordings of a court, and return it to the 
court to be prosecuted. See Estreat, n. 
Estreat, n. (From Lat. extractum.) In English law, a 
copy or extract from the book of estreats, that is, the 
rolls of any court, in which the amercements or fines, 
recognizances, etc., imposed or taken by that court upon 
or from the accused, are set down, and which are to be 
levied by the bailiff or other offi cer of the court. A true 
copy or duplicate of some original writing or record, and 
especially of fines and amercements imposed by a court, 
extracted from the record, and certified to a proper 
officer or off icers authorized and required to collect 
them. 
Estreciatus / �striys(h)iyeyt�s/. Straightened, as applied 
to roads. 
Estrepe / �striyp/. To strip; to despoil; to lay waste; to 
commit waste upon an estate, as by cutting down trees, 
removing buildings, etc. To injure the value of a rever
sionary interest by stripping or spoiling the estate. 
Estrepement / �striypm�ntl. A species of aggravated 
waste, by stripping or devastating the land, to the injury 
of the reversioner, and especially pending a suit for 
possession. 
Estrepement, writ of. A common-law writ of waste, 
which lay in particular for the reversioner against the 
tenant for life, in respect of damage or injury to the land 
committed by the latter. As it was only auxiliary to a 
real action for recovery of the land, and as equity 
afforded the same relief by injunction, the writ fell into 
disuse in England, and was abolished by 3 & 4 Wm. IV, 
c. 27. 
Estuary / es(h)ch�wehriy / . That part of the mouth or 
lower course of a river flowing into the sea which is 
subject to tide; especially, an enlargement of a river 
channel toward its mouth in which the movement of the 
tide is very prominent. 
Et. And. The introductory word of several Latin and 
law French phrases formerly in common use.

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553 
Et adjournatur led redj::lrneyt::lr/. And it is adjourned. 
A phrase used in the old reports, where the argument of 
a cause was adjourned to another day, or where a second 
argument was had. 
Et al. led rell. An abbreviation for et alii, "and others." 
The singular is "et alius" (q.v .). It may also mean "and 
another" in the singular. 
The abbreviation et al. (sometimes in the plural writ
ten et als.) is often affixed to the name of the person 
first mentioned, where there are several plaintiffs, 
grantors, persons addressed, etc. 
Where the words "et al." are used in a judgment 
against defendants, the quoted words include all defen
dants. Williams v. Williams, 25 Tenn.App. 290, 156 
S.W.2d 363, 369. 
Et alii e contra led eyliyay iy k6ntr::l/. And others on 
the other side. A phrase constantly used in the Year 
Books, in describing a joinder in issue. 
Et alius led eyliY::ls/. And another. 
Et allocatur led rel::lkeyt::lr/. And it is allowed. 
Et cetera (or etc.) let set::lr::li. And others; and other 
things; and others of like character; and others of the 
like kind; and the rest; and so on; and so forth. In its 
abbreviated form (etc.) this phrase is frequently affixed 
to one of a series of articles or names to show that 
others are intended to follow or understood to be includ
ed. So, after reciting the initiatory words of a set 
formula, or a clause already given in full, etc. is added, 
as an abbreviation, for the sake of convenience. And 
other things of like kind or purpose as compared with 
those immediately theretofore mentioned. 
Et de ceo se mettent en Ie pays. L. Fr. And of this 
they put themselves upon the country. 
Et de hoc ponit se super patriam let diy h6k p6wn::lt 
siy s(y)uwp::lr pretriY::lm/. And of this he puts himself 
upon the country. The formal conclusion of a common
law plea in bar by way of traverse. 3 Bl.Comm. 313. 
The literal translation is retained in the modern form. 
Et ei legitur in hrec verba led iyay liyj::lt::lr ::In hiyk 
v;)rb::l/. L. Lat. And it is read to him in these words. 
Words formerly used in entering the prayer of oyer on 
record. 
Eternal security. The doctrine of "eternal security" 
means that once one becomes a Christian or has been 
"regenerated" his future conduct, no matter what it 
may be, will not jeopardize his salvation. Ashman v. 
Studebaker, 115 Ind.App. 73, 56 N.E.2d 674, 678. 
Et habeas ibi tunc hoc breve let heybiY::ls ibay t;)nk 
h6k briyviy I. And have you then there this writ. The 
formal words directing the return of a writ. The literal 
translation was retained in the later form of a consider
able number of writs. 
Et habuit let hrebyuw::ltl. And he had it, a common 
phrase in the Year Books, expressive of the allowance of 
an application or demand by a party. 
ET SEQ. 
Ethics. Of or relating to moral action, conduct, motive 
or character; as, ethical emotion; also, treating of moral 
feelings, duties or conduct; containing precepts of mo
rality; moral. Professionally right or befitting; con
forming to professional standards of conduct. Kraush
aar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d 857, 859. 
Legal ethics. See Canon (Canons of judicial ethics); 
Code of Professional Responsibility; Legal ethics. 
Et hoc paratus est verificare let h6k p::lreyt::ls est 
vehr::lf::lkeriy/. And this he is prepared to verify. The 
Latin form of concluding a plea in confession and avoid
ance; that is, where the defendant has confessed all that 
the plaintiff has set forth, and has pleaded new matter 
in avoidance. These words were used, when the plead
ings were in Latin, at the conclusion of any pleading 
which contained new affirmative matter. They ex
pressed the willingness or readiness of the party so 
pleading to establish by proof the matter alleged in his 
pleading. A pleading which concluded in that manner 
was technically said to "conclude with a verification," in 
contradistinction to a pleading which simply denied 
matter alleged by the opposite party, and which for that 
reason was said to "conclude to the country," because 
the party merely put himself upon the country, or left 
the matter to the jury. 
Et hoc petit quod inquiratur per patriam let h6k 
pet::lt kwod iI]kw::lreyt::lr p;)r pretriY::lm/. And this he 
prays may be inquired of by the country. The conclu
sion of a plaintiffs pleading, tendering an issue to the 
country. Literally translated in the modern forms. 
Et inde petit judicium led indiy pet::lt juwdish(iY)::lm/. 
And thereupon [or thereof] he prays judgment. A 
clause at the end of pleadings, praying the judgment of 
the court in favor of the party pleading. It occurs as 
early as the time of Bracton, and is literally translated 
in the modern forms. 
Et inde producit sectam led indiy pr::ld(y)uws::lt 
sekt::lm/. And thereupon he brings suit. The Latin 
conclusion of a declaration, except against attorneys and 
other officers of the court. 3 Bl.Comm. 295. 
Etiquette of the profession I et::lk::lt ::lV O::l pr::lfesh::ln/. 
The code of honor agreed on by mutual understanding 
and tacitly accepted by members of the legal profession, 
especially by the bar. See Code of Professional Respon
sibility; Legal ethics. 
Et modo ad hunc diem let m6wdow red h;)I]k daY::lm/. 
Lat. And now at this day. This phrase was the formal 
beginning of an entry of appearance or of a continuance. 
The equivalent English words are still used in this 
connection. 
Et non let n6n/. Lat. And not. A technical phrase in 
pleading, which introduces the negative averments of a' 
special traverse. It has the same force and effect as the 
words absque hoc, "without this," and is occasionally 
used instead of the latter. 
Et seq. let s::lkwentiyz/et s::lkwensh(iY)::l/. An abbrevia
tion for et sequentes (masculine and feminine plural) or 
et sequentia (neuter), "and the following." Thus a refer-

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ET SEQ. 
ence to "p. 1, et seq." means "page first and the follow
ing pages." Also abbreviated "et sqq.," which is pre
ferred by some authorities for a reference to more than 
one following page. 
Et sic let sik/. And so. In the Latin forms of pleading 
these were the introductory words of a special conclu
sion to a plea in bar, the object being to render it 
positive and not argumentative; as et sic nil debet. 
Et sic ad judicium let sik red juwdishiy�m/. And so to 
judgment. 
Et sic ad patriam let sik red p,Hriy�m/. And so to the 
country. A phrase used in the Year Books, to record an 
issue to the country. 
Et sic fecit let sik feys�t/. And he did so. 
Et sic pendet let sik pend�t/. And so it hangs. A term 
used in the old reports to signify that a point was left 
undetermined. 
Et sic ulterius let sik �ltiriy�s/. And so on; and so 
further; and so fo rth. 
Et ux led �ks(�r)/. An abbreviation for et uxor, -"and 
wife." Where a grantor's wife joins him in the convey
ance, it is sometimes expressed (in abstracts, etc.) to be 
by "A. B. et ux. " 
Euclidian Zoning. See Zoning. 
Eum qui nocentem infarnat, non est requum et bonum 
ob earn rem condemnari; delicta enim nocentium 
nota esse oportet et expedit liy�m kwity n�sent�m 
infeym�t non est iykw�m et bown�m ob iy�m rem 
kondemneray; d�likta iyn�m n�sensh(iy)�m nowd� esiy 
�port�t et eksp�d�t/. It is not just and proper that he 
who speaks ill of a bad man should be condemned on 
that account; for it is fitting and expedient that the 
crimes of bad men should be known. 1 Bl.Comm. 125. 
Eundo et redeundo liy�ndow et rediy�ndow/. Lat. In 
going and returning. Applied to vessels. 
Eundo, morando, et redeundo liy�ndow, m�rrendow, et 
rediy�ndow I. Lat. Going, remaining, and returning. 
A person who is privileged from arrest (as a witness, 
legislator, etc.) is generally so privileged eundo, moran
do, et redeundo; that is, on his way to the place where 
his duties are to be performed, while he remains there, 
and on his return journey. 
Eunomy Iyuwn�miy/. Equal laws and a well-adjusted 
constitution of government. 
Eunuch Iyuwn�k/. A male of the human species who 
has been castrated. 
Euphoria lyuwfori y�/. Exaggerated feeling of physical 
and emotional well-being not consonant with apparent 
stimuli or events; usually of psychologic origin, but also 
seen in organic brain diseases, or toxic and drug induced 
states. 
Eurobanks. Banks that participate in the Eurocurrency 
market by accepting deposits and providing loans in 
fo reign currencies. 
554 
Eurobond. An international bond which is issued out
side the country in whose currency the bonds are de
nominated. 
Eurodollar Iyurowdo l�r/. U.S. dollars that have been 
deposited in European banks or European branches of 
U.S. banks. 
European Court of Human Rights. The judicial body 
of the Council · of Europe. Sits at Strasbourg. Estab
lished in 1950. The Convention on Human Rights, 1950, 
in force 1953, does not necessarily fo rm part of the 
domestic law of member nations . nor is there any obli
gation to accept the Court's jurisdiction. 
Euthanasia lyuwO�neyzh�/. The act or practice of pain
lessly putting to death persons suffering from incurable 
and distressing disease as an act of mercy. See also 
Brain death; Death (Natural Death Acts); Will (Living 
will). 
Evarts Act. See Judiciary Acts. 
Evasion. An act of eluding, dodging, or avoiding, or 
avoidance by artifice. City of Wink v. Griffith Amuse
ment Co., 129 Tex. 40, 100 S.W.2d 695, 701. A subtle 
endeavoring to set aside truth or to escape the punish
ment of the law. Tax "evasion" is to be distinguished 
from tax "avoidance," the former meaning the illegal 
nonpayment of taxes due, the latter referring to the 
legal reduction or nonpayment of taxes through allow
able deductions, exemptions, etc. 
Evasive. Tending or seeking to evade; elusive; shifting; 
as an evasive argument or plea. If a pleading to which a 
responsive pleading is required is evasive, a party may 
make motion for a more definite statement. Fed.R.Civil 
P. 12(e). 
Evasive answer. One which consists in refusing either 
to admit or to deny a matter in a direct, straight-for
ward manner as to which the person is necessarily 
presumed to have knowledge. Under Fed.R.Civil P. 37, 
an evasive answer is considered and treated as a failure 
to answer, for which a party may on motion seek a court 
order compelling answers to discovery questions. 
Eve. Evening. The period immediately preceding an 
important event. 
Even. Nothing due or owing on either side; neither a 
profit nor loss; i.e. breaking even. 
Evening. The closing part of the day and beginning of 
the night; in a strict sense, from sunset till dark. In 
common speech, the latter part of the day and the 
earlier part of the night, until bedtime. The period 
between sunset or the evening meal and ordinary bed
time. See also Nighttime. 
Evenings. In old English law, the delivery at evening or 
night of a certain portion of grass, or corn, etc., to a 
customary tenant, who performs the service of cutting, 
mowing, or reaping for his lord, given him as a gratuity 
or encouragement. 
Event. The consequence of anything; the issue or out
come of an action as finally determined; that in which

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555 
an action, operation, or series of operations, terminates. 
Noteworthy happening or occurrence. Something that 
happens. 
Distinguished from an act in that an act is the product 
of the will whereas an event is an occurrence which 
takes place independent of the will such as an earth
quake or flood. 
See also Fortuitous event. 
Eventus est qui ex causa sequitur; et dicitur eventus 
quia ex causis evenit / ;w€mt�s est kway eks k6z� 
sekw�d�r, et dis�t�r �vent�s kway� eks k6z�s ev�n�t/. 
An event is that which fo llows from the cause, and is 
called an "event" because it eventuates from causes. 
Eventus varios res nova semper habet / �vent�s veri
yows riyz n6wv� semp�r heyb�t/. A new matter always 
produces various events. 
Evergreen contract. A contract which renews itself 
from year to year in lieu of notice by one of the parties 
to the contrary. Chemplex Co. v. Tauber Oil Co., D.C. 
Iowa, 309 F.Supp. 904, 908. 
Every. Each one of all; all the separate individuals who 
constitute the whole, regarded one by one. The term is 
sometimes equivalent to "all"; and sometimes to "each". 
Every other thing. This phrase, as used in requiring 
employer to furnish safe place of employment and to do 
"every other thing" reasonably necessary to protect em
ployees, relates to things of same kind that employer 
must necessarily do in making place safe. 
Evesdroppers. See Eavesdropping. 
Evict. In civil law, to recover anything from a person by 
virtue of the judgment of a court or judicial sentence. 
See Eviction. 
Eviction. Dispossession by process of law; the act of 
depriving a person of the possession of land or rental 
property which he has held or leased. Act of turning a 
tenant out of possession, either by re-entry or legal 
proceedings, such as an action of ejectment. Depriva
tion of lessee of possession of premises or disturbance of 
lessee in beneficial enjoyment so as to cause tenant to 
abandon the premises (the latter being constructive con
viction). Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273, 
276. 
See also Actual eviction; Constructive eviction; Eject
ment; Forcible entry and detainer; Notice to quit; Partial 
eviction; Process (Summary process); Retaliatory eviction; 
Total eviction. 
Evidence. Any species of proof, or probative matter, 
legally presented at the trial of an issue, by the act of 
the parties and through the medium of witnesses, 
records, documents, exhibits, concrete ob jects, etc., for 
the purpose of inducing belief in the minds of the court 
or jury as to their contention. Taylor v. Howard, 111 
R.I. 527, 304 A.2d 891, 893. Testimony, writings, or 
material objects off ered in proof of an alleged fact or 
proposition. That probative material, legally received, 
by which the tribunal may be lawfully persuaded of the 
EVIDENCE 
truth or falsity of a fact in issue. People v. Leonard, 207 
C.A.2d 409, 24 Cal.Rptr. 597, 600. 
Testimony, writings, material ob jects, or other things 
presented to the senses that are off ered to prove the 
existence or nonexistence of a fact. Calif.Evid.Code. 
All the means by which any alleged matter of fact, the 
truth of which is submitted to investigation, is estab
lished or disproved. Any matter of fact, the effect, 
tendency, or design of which is to produce in the mind a 
persuasion of the existence or nonexistence of some 
matter of fact. That which demonstrates, makes clear, 
or ascertains the truth of the very fact or point in issue, 
either on the one side or on the other. That which 
tends to produce conviction in the mind as to existence 
of a fact. The means sanctioned by law of ascertaining 
in a judicial proceeding the truth respecting a question 
of fact. 
As a part of procedure "evidence" signifies those rules 
of law whereby it is determined what testimony should 
be admitted and what should be re jected in each case, 
and what is the weight to be given to the testimony 
admitted. See Evidence rules. 
For Presumption as evidence, see Presumption; Proof 
and evidence distinguished, see Proof; Testimony as syn
onymous or distinguishable, see Testimony; View as evi
dence, see View. 
See also Adminicular evidence; Aliunde; Autoptic evi
dence; Best evidence; Beyond a reasonable doubt; Cir
cumstantial evidence; Competent evidence; Conclusive 
evidence; Conflicting evidence; Corroborating evidence; 
Critical evidence; Cumul ative evidence; Demeanor (De
meanor evidence}, Demon strative evidence; Derivative ev
idence; Direct evidence; Documen tary evidence; Exemp
lars; Extrajudicial evidence; Extraneous evidence; Extrin
sic evidence; Fabricated evidence; Fact; Fair preponder
ance of evidence; Hearsay; Illegally obtained evidence; 
Im material evidence; Incompetent evidence; Incrimi nating 
evidence; Inculpatory; Independent source rule; Indirect 
evidence; Indispensable evidence; Inference; Laying 
foundation; Legal evidence; Legally sufficient evidence; 
Limited admissibility; Material evidence; Mathematical evi
dence; Moral evidence; Narrative evidence; Newly dis
covered evidence; Offer of proof; Opinion evi
dence; or testimony; Oral evidence; Original document 
rule; Parol evidence rule; Partial evidence; Past recollec
tion recorded; Perpetuating testimony; Physical fact rule; 
Positive evidence; Prelimi nary evidence; Preponderance 
of evidence; Presumption; Presumptive evidence; Prima 
facie evidence; Primary evidence; Prior inconsistent state
ments; Privileged evidence; Probable evidence; Probative 
evidence; Probative facts; Proof; Proper evidence; Real 
evidence; Reasonable inference rule; Rebuttal evidence; 
Relevant evidence; Satisfactory evidence; Scintilla of evi
dence rule; Secondary evidence; Second-hand evidence; 
State's evidence; Substantial evidence; Substantive evi
dence; Substitutionary evidence rule; Sufficiency of evi
dence; Traditionary evidence; View; Weight of evidence; 
Withholding of evidence. 
There are, generally speaking, two types of evidence 
from which a jury may properly find the truth as to the 
facts of a case. One is direct evidence-such as the

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EVIDENCE 
testimony of an eyewitness. The other is indirect or 
circumstantial evidence-the proof of a chain of circum
stances pointing to the existence or non-existence of 
certain facts. As a general rule, the law makes no 
distinction between direct and circumstantial evidence, 
but simply requires that the jury find the facts in 
accordance with the preponderance of all the evidence 
in the case, both direct and circumstantial. 
Au toptic evidence. Type of evidence presented in court 
which consists of the thing itself and not the testimony 
accompanying its presentation. Articles off ered in evi
dence which the judge or jury can see and inspect. Real 
evidence as contrasted with testimonial evidence; e.g. in 
contract action, the document purporting to be the con
tract itself, or the gun in a murder trial. See Demons
trative evidence. 
Character evidence. Evidence of a person's character or 
traits is admissible under certain conditions in a trial, 
though, ao; a general rule, evidence of character traits 
are not competent to prove that a person acted in 
conformity therewith on a particular occasion. Fed. 
Evid.R. 404. 
Curative admissibility. See Curative. 
Exculpatory evidence. A defendant in a criminal case is 
entitled to evidence in possession or control of the 
government if such evidence tends to indicate his inno
cence or tends to mitigate his criminality if he demands 
it and if the failure to disclose it results in a denial of a 
fair trial. U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 
L.Ed.2d 342. Disclosure of evidence by the government 
is governed by Fed.R.Crim.P. 16. 
Expert evidence. Testimony given in relation to some 
scientific, technical, or professional matter by experts, 
i.e., persons qualified to speak authoritatively by reason 
of their special training, skill, or familiarity with the 
subject. See also Expert witness. 
Identification evidence. See Exemplars. 
Illegally obtained evidence. See Exclusionary Rule; Fruit 
of poisonous tree doctrine; Mapp v. Ohio; Miranda Rule; 
McNabb- Mallory Rule; Motion to suppress. 
Inculpatory evidence. Evidence tending to show a per
son's involvement in a crime; incriminating evidence. 
See Incriminating evidence. 
Irrelevant evidence. Evidence is irrelevant if it is not so 
related to the issues to be tried and if it has no logical 
tendency to prove the issues. See Irrelevant. Compare 
Relevant evidence, below. 
Material evidence. See Relevant evidence, below. 
Oral evidence. See Testimony. 
Original evidence. See Original; Original document rule. 
Preponderance of the evidence. A standard of proof 
(used in many civil suits) which is met when a party's 
evidence on a fact indicates that it is "more likely than 
not" that the fact is as the party alleges it to be. See 
Fair preponderance of evidence. 
556 
Proffered evidence. Evidence, the admissibility or inad
missibility of which is dependent upon the existence or 
nonexistence of a preliminary fact. Calif.Evid.Code. 
Relevant evidence. Evidence having any tendency to 
make the existence of any fact that is of consequence to 
the determination of the action more probable or less 
probable than it would be without the evidence. Fed. 
Evid.R. 401. Evidence, including evidence relevant to 
the credibility of a witness or hearsay declarant, having 
any tendency in reason to prove or disprove any dis
puted fact that is of consequence to the determination of 
the action. Calif.Evid.Code. Evidence which bears a 
logical relationship to the issues in a trial or case. 
See Material evidence. 
Tangible evidence. Physical evidence; evidence that 
can be seen or touched, e.g., documents, weapons. Testi
monial evidence is evidence which can be heard, e.g., the 
statements made by anyone sitting in the witness box. 
See Demon strative evidence. 
Testimonial evidence. Communicative evidence as dis
tinguished from demonstrative or physical evidence. 
Com. v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567, 
569. See Testimony. 
Evidence by inspection. Such evidence as is addressed 
directly to the senses without intervention of testimony. 
Tangible; physical evidence. See Demons trative evi
dence. 
Evidence codes. Statutory provisions governing admis
sibility of evidence and burden of proof at hearings and 
trials (e.g. California Evidence Code). See also Evidence 
rules, infra. 
Evidence completed. Exists where both sides have 
off ered testimony and rested, or where plaintiff has 
rested and defendant has made motion for finding on 
plaintiffs case and stands on motion and declines to 
offer evidence. Merriam v. Sugrue, D.C.Mun.App., 41 
A.2d 166, 167. 
Evidence, law of. The aggregate of rules and principles 
regulating the burden of proof, admissibility, relevancy, 
and weight and sufficiency of evidence in legal proceed
ings. See Evidence codes; Evidence rules. 
Evidence of debt. A term applied to written instru
ments or securities for the payment of money, importing 
on their face the existence of a debt. See Bond; Deben
ture. 
Evidence of insurability. Medical examination, 
records, and the like, required by insurer to establish a 
potential insurers qualification, or lack thereof, for par
ticular insurance. 
Evidence of title. A deed or other document establish
ing the title to property, especially real estate. See 
Deed. 
Evidence reasonably tending to support verdict. 
Means evidence that is competent, relevant, and materi
al, and which to rational and impartial mind naturally 
leads, or involuntarily tends to lead, to conclusion for 
which there is valid, just, and substantial reason. Kelly

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557 
v. Oliver Farm Equipment Sales Co., 169 Okl. 269, 36 
P.2d 888, 891. See also Evidence to support findin gs. 
Means some legal evidence tending to prove every 
material fact in issue as to which the party in whose 
favor the verdict was rendered had the burden of proof. 
Nicolai-Neppach Co. v. Smith, 154 Or. 450, 58 P.2d 1016, 
1024. 
Evidence rules. Rules which govern the admissibility of 
evidence at hearings and trials, e.g. , Federal Rules of 
Evidence; Uniform Rules of Evidence. A number of 
states have adopted evidence rules as patterned on the 
Federal Rules of Evidence. In certain states evidence 
rules are codified (e.g. , California Evidence Code) or 
otherwise set forth in statutes (e.g. , state statutes com
monly govern admissibility of privileged communica
tions). 
Evidence to support findings. Substantial evidence or 
such relevant evidence as a reasonable mind might 
accept as adequate to support a conclusion and enough 
to justify, if the trial were to a jury, a refusal to direct a 
verdict when the conclusion sought to be drawn from it 
is one of fact for jury. Jordan v. Craighead, 11 4 Mont. 
337, 136 P.2d 526, 528. See also Ultimate facts. 
Evident. Clear to the understanding and satisfactory to 
the judgment; manifest; plain; obvious; conclusive. 
Noticeable; apparent to observation. 
Proof evident. See Proof. 
Evidentia lev;:,d€msh(iy);:,/. L. Evidence. 
Evidentiary I ev;:,d€msh(;:,)riy /"ch;:,riy /"iyeriy I. Having 
the quality of evidence; constituting evidence; evidenc
ing. Pertaining to the rules of evidence or the evidence 
in a particular case. A term introduced by Bentham, 
and, from its convenience, adopted by other writers. 
Evidentiary facts. Those facts which are necessary for 
determination of the ultimate facts; they are the prem
ises upon which conclusions of ultimate facts are based. 
Womack v. Industrial Comm., 168 Colo. 364, 451 P.2d 
761, 764. Facts which furnish evidence of existence of 
some other fact. 
Evidentiary harpoon. Exists where prosecution 
through its witnesses successfully places before jury 
improper evidence, such as previous arrests and convic
tions of defendant, in situations where such evidence 
would not be admissible. Kramer v. State, 258 Ind. 257, 
317 N.E.2d 203, 207. 
Evidently. Means in an evident manner; perceptibly, 
clearly, obviously, plainly. It is employed to express the 
idea of full-proof conviction. Tennes v. Tennes, 320 
Ill.App. 19, 50 N.E.2d 132, 139. 
Evocation. In French law, the withdrawal of a cause 
from the cognizance of an inferior court, and bringing it 
before another court or judge. In some respects this 
process resembles the proceedings upon certiorari. 
Evolution statute. Legislative enactment which fo rbids 
teaching of evolution in schools and which has been held 
unconstitutional as violative of the Establishment 
EXAMINATION 
Clause of First Amend., U.S.Const. Epperson v. Arkan
sas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228. 
Ewage lyUw;:,j/. (L. Fr. Ewe, water.) In old English 
law, toll paid for water passage. The same as aquage or 
aquagium. 
Ewbrice Iyuwbriych/. Adultery; spouse-breach; mar
riage-breach. 
Ewry Iyuw(;:,)riy/. An office in the royal household 
where the table linen, etc., is taken care of. 
Ex leks/. A latin preposition meaning from, out of, by, 
on, on account of, or according to. 
A prefix, denoting removal, cessation or fo rmer. Pre
fixed to the name of an office, relation, status, etc., it 
denotes that the person spoken of once occupied that 
office or relation, but does so no longer, or that he is 
now out of it. Thus, ex-mayor, ex-partner, ex-judge. 
A prefix which is equivalent to "without," "reserv
ing," or "excepting." In this use, probably an abbrevia
tion of "except." Thus, ex-interest, ex-coupons, ex-divi
dend. 
Also used as an abbreviation for "exhibit." 
Ex abundanti I eks ;:,b�ndrentay I. Out of abundance; 
abundantly; superfluously; more than sufficient. 
Ex abundanti cautela I eks ;:,b�ndrentay kotiyb /. Lat. 
Out of abundant caution. 
Exaction. The wrongful act of an officer or other person 
in compelling payment of a fee or reward for his servic
es, under color of his official authority, where no pay
ment is due. See also Extortion. 
Exactor. In the civil law, a gatherer or receiver of 
money; a collector of taxes. In old English law, a 
collector of the public moneys; a tax gatherer. Thus, 
exactor regis was the name of the king's tax collector, 
who took up the taxes and other debts due the treasury. 
Ex adverso leks ;:,dv;)rsow I. On the other side. Applied 
to opposing counsel. 
Ex requitate leks iykw;:,teytiy I. According to equity; in 
equity. 
Ex requo et bono leks iykwow et b6wnow I. A phrase 
derived from the civil law, meaning, in justice and 
fairness; according to what is just and good; according 
to equity and conscience. 3 BI.Comm. 163. 
Ex altera parte leks 6It;:,r;:, partiy I. Of the other part. 
Examen I ;:,gzeym;:,n/. L. Lat. A trial. Examen compu
ti, the balance of an account. 
Examination. An investigation; search; inspection; in
terrogation. 
Abstract of title. An investigation of the abstract of 
title made by or for a person who intends to purchase 
real estate, to ascertain the history and present condi
tion of the title to such land, and its status with refer
ence to liens, incumbrances, clouds, etc. to determine if 
marketable title exists.

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EXAMINATION 
Bankruptcy. Questioning of bankrupt during course of 
bankruptcy proceedings (first meeting of creditors) con
cerning extent of his debts and assets, conduct of his 
business, the cause of his bankruptcy, his dealings with 
his creditors and other persons, the amount, kind, and 
whereabouts of his property, and all matters which may 
affect the administration and settlement of his estate. 
Bankruptcy Code, § 343. 
Criminal procedure. An investigation by a magistrate of 
a person who has been charged with crime and arrested, 
or of the facts and circumstances which are alleged to 
have attended the crime, in order to ascertain whether 
there is sufficient ground to hold him to bail for his trial 
by the proper court. The preliminary hearing to deter
mine whether person charged with having committed a 
crime should be held for trial. See Court of In quiry; 
Examining court; Examining trial; Interrogation; Prelimi
nary hearing. 
Discovery. See Deposition; Discovery; Interrogatories. 
Invention. An inquiry made at the patent-office, upon 
application for a patent, int'o the novelty and utility of 
the alleged invention, and as to its interfering with any 
other patented invention. 35 V.S.c.A. § 131 et seq. 
Witnesses. The examination of a witness consists of the 
series of questions put to him by a party to the action, or 
his counsel, or opposing counsel, for the purpose of 
bringing before the court and jury in legal form the 
knowledge which the witness has of the facts and mat
ters in dispute, or of probing and sifting his evidence 
previously given. 
See also Cross-exa mination; Direct examination; Lead
ing question; Prelimi nary hearing; Recross examination; 
Redir ect examination; Re-examination; Separate examina
tion. As regards examination of witnesses prior to tri
al, see Deposition; Interrogatories. As regards compulso
ry examination, see Subpoena. 
Examined copy. A copy of a record, public book, or 
register, and which has been compared with the origi
nal. 
Examiner. Off icer or other person authorized to con
duct an examination (e.g. bank examiner) or appointed 
by court to take testimony of witnesses. 
An officer appointed by the court to take testimony in 
causes pending in that court; e.g. a master, auditor, 
referee. 
An officer in the patent-office charged with the duty 
of examining the patentability of inventions for which 
patents are asked. 
See also Auditor; In spector; Master; Referee. 
Examiners, bar. Persons appointed in states to test law 
graduates to ascertain their qualifications to practice 
law. Such test is called "bar examination ." 
Examining board. Generally, a board composed of pub
lic or quasi public officials who are responsible for 
conducting tests and examinations for those applying for 
occupational, prof essional, etc. licenses. 
Examining court. A lower court which conducts pre
liminary examinations to determine probable cause and 
558 
set bail before a criminal defendant is bound over to the 
grand jury. See Court of inquiry; Prelimi nary hearing. 
Examining trial. A preliminary hearing to determine 
whether there exists probable cause for binding one over 
to the grand jury. See also Preliminary hearing. 
Exannual roll I eksrenyuw;}l rowl!. In old English prac
tice, a roll into which (in the old way of exhibiting 
sheriffs' accounts) the illeviable fines and desperate 
debts were transcribed, and which was annually read to 
the sheriff upon his accounting, to see what might be 
gotten. 
Ex antecedentibus et consequentibus fit optima in
terpretatio leks rent;}s;}d€mt;}b;}s et kons;}kw€mt;}b;}s fit 
opt;}m;} ;}nt�rpr;}teysh(iy)ow/. A passage in a statute is 
best interpreted by reference to what precedes and what 
follows it. The best interpretation [of a part of an 
instrument] is made from the antecedents and the conse
quents [from the preceding and following parts]. The 
law will judge of a deed or other instrument, consisting 
of divers parts or clauses, by looking at the whole; and 
will give to each part its proper office, so as to ascertain 
and carry out the intention of the parties. The whole 
instrument is to be viewed and compared in all its parts, 
so that every part of it may be made consistent and 
effectual. 
Ex arbitrio judicis leks arbitriyow juwd;}s;}s/. At, in, or 
upon the discretion of the judge. 4 Bl.Comm. 394. A 
term of the civil law. 
Ex assensu curlee leks ;}sens(y)uw kyuriyiy/. By or with 
the consent of the court. 
Ex assensu patris leks ;}sens(y)uw pretr;}s/. By or with 
the consent of the father. A species of dower ad ostium 
eccles ire, during the life of the father of the husband; 
the son, by the father's consent expressly given, endow
ing his wife with parcel of his father's lands. Abolished 
in England by 3 & 4 Wm. IV, c. 105, § 13. 
Ex assensu suo leks ;}sens(y)uw s(y)uwow /. With his 
assent. Formal words in judgments for damages by 
default. 
Ex bonis leks bow n;}s/. Of the goods or property. A 
term of the civil law, distinguished from in bonis, as 
being descriptive of or applicable to property not in 
actual possession. 
Excambiator I ;}kskrembiyeyt;}r I. An exchanger of 
lands; a broker. Obsolete. 
Excambium I ;}kskrembiy;}m/. An exchange; a place 
where merchants meet to transact their business; also 
an equivalent in recompense; a recompense in lieu of 
dower ad ostium eccles ire. 
Ex cathedra leks kreO;}dr;}rk;}Oiydr;}/. From the chair. 
Originally applied to the decisions of the popes from 
their cathedra, or chair. Hence, authoritative; having 
the weight of authority. 
Ex causa leks koz;} I . L. Lat. By title. 
Excellency. Title sometimes given to the chief execu
tive of a state or of the nation; also to members of

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559 
hierarchy of church and judges of the International 
Court of Justice at the Hague. 
Except. But for; only fo r;· not including; other than; 
otherwise than; to leave out of account or consideration. 
See Exception. 
Excepting. As used in a deed, the terms "reserving" 
and "excepting" are used interchangeably, and their 
technical meaning will give way to the manifest intent. 
Porter v. Warner-Caldwell Oil Co., 183 OkL 1, 80 P.2d 
252, 253. The words "reserving" and "excepting," al
though strictly distinguishable, may be used inter
changeably or indiscriminately. Stephens v. Kentucky 
Valley Distilling Co., 275 Ky. 705, 122 S.W.2d 493, 496. 
Exceptio /;}ksepsh(iy)ow/. An exception, plea, or ob jec
tion. In civil law, a plea by which the def endant admits 
the cause of action, but alleges new facts which, provid
ed they be true, totally or partially answer the allega
tions put forward on the other side; thus distinguished 
from a mere traverse of the plaintiffs averments. In 
this use, the term corresponds to the common-law plea 
in confession and avoidance. Such answers to the "de
fense" or "plea" of the common law. An allegation and 
defense of a defendant by which the plaintiffs claim or 
complaint is defeated, either according to strict law or 
upon grounds of equity. In a stricter sense, the exclu
sion of an action that lay in strict law, on grounds of 
equity (actionis jure stricto competentis ob requitatem 
exclusio). A kind of limitation of an action, by which it 
was shown that the action, though otherwise just, did 
not lie in the particular case. A species of defense 
allowed in cases where, though the action as brought by 
the plaintiff was in itself just, yet it was unjust as 
against the particular party sued. 
Exceptio dilatoria /;}ksepsh(iy)ow dibtoriy;} /. A dilato
ry exception; called also "temporalis" (temporary); one 
which defeated the action for a time (qure ad tempus 
nocet), and created delay (et temporis dilationem tribuit); 
such as an agreement not to sue within a certain time, 
as five years. 
Exceptio doli mali /;}ksepsh(iy)ow dowlay m,i:1ay/. An 
exception or plea of fraud. 
Exceptio domminii /;}ksepsh(iy)ow d;}miniyay/. A 
claim of ownership set up in an action for the recovery 
of property not in the possession of the plaintiff. 
Exceptio dotis cautre non numeratre /;}ksepsh(iy)ow 
dowt;}s kotiy non n(y)uwm;}reytiy/. A defense to an 
action for the restitution of a dowry that it was never 
paid, though promised, available upon the dissolution of 
the marriage within a limited time. 
Exceptio ejus rei cujus petitur dissolutio nulla est 
/;}ksepsh(iy)ow lYJ;}S riyay kyuwj;}s pet;}t;}r dis;}
l(y)uwsh(iy)ow n�l;} est/. A plea of that matter the 
dissolution of which is sought [by the action] is null [or 
of no effect]. 
Exceptio falsi omnium ultima / ;}ksepsh(iy)ow fo lsay 
omniy;}m �1t;}m;}/. A plea denying a fact is the last of 
all. 
EXCEPTION 
Exceptio firmat regulam in casibus non exceptis 
/;}ksepsh(iy)ow f�rm;}t regy;}l;}m ;}n keys;}b;}s non 
;}ksept;}s/ . An exception affirms the rule in cases not 
excepted. 
Exceptio firmat regulam in contrarium /;}ksepsh(iy)ow 
f�rm;}t regy;}l;}m in k;}ntreriy;}m/. An exception proves 
an opposite rule. See Exceptio probat regulam. 
Exceptio in factum /;}ksepsh(iy)ow in frekt;}m/. An 
exception on the fact. An exception or plea fo unded on 
the peculiar circumstances of the case. 
Exceptio in personam /;}ksepsh(iy)ow in p;}rsown;}m/. 
A plea or defense of a personal nature, which may be 
alleged only by the person himself to whom it is granted 
by the law. 
Exceptio in rem /;}ksepsh(iy)ow in rem/. A plea or 
defense not of a personal nature, but connected with the 
legal circumstances on which the suit is fo unded, and 
which may therefore be alleged by any party in interest, 
including the heirs and sureties of the proper or original 
debtor. 
Exceptio jurisjurandi / ;}ksepsh(iy)ow jur;}sj;}rrenday / . 
An exception of oath; an exception or plea that the 
matter had been sworn to. This kind of exception was 
allowed where a debtor, at the instance of his creditor 
(creditore deferente), had sworn that nothing was due the 
latter, and had notwithstanding been sued by him. 
Exceptio metus /;}ksepsh(iy)ow met;}s/. An exception or 
plea of fear or compulsion. Answering to the modern 
plea of duress. 
Exception. Act of excepting or excluding from a num
ber designated or from a description; that which is 
excepted or separated from others in a general rule or 
description; a person, thing, or case specified as distinct 
or not included; an act of excepting, omitting from 
mention or leaving out of consideration. Express exclu
sion of something from operation of contract or deed. 
An "exception" operates to take something out of thing 
granted which would otherwise pass or be included. 
Christman v. Emineth, N.D. , 212 N.W.2d 543, 552. Such 
excludes from the operation of conveyance the interest 
specified and it remains in grantor unaffected by con
veyance. Elrod v. Heirs, Devisees, etc., 156 Neb. 269, 55 
N.W.2d 673, 675, 676. 
Ob jection to order or ruling of trial court. A formal 
ob jection to the action of the court, during the trial of a 
cause, in refusing a request or overruling an ob jection; 
implying that the party excepting does not acquiesce in 
the decision of the court, but will seek to procure its 
reversal, and that he means to save the benefit of his 
request or ob jection in some future proceeding. Under 
rules practice in the federal and most state courts, the 
need for claiming an exception to evidence or to a ruling 
to preserve appellate rights has been eliminated in favor 
of an ob jection. Fed.R. Civil P. 46. 
See also Challenge; Dilatory exceptions; General excep
tion; Objection; Peremptory exceptions; Reservation; 
Special exception. 
Bill of exceptions. See Bill.

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EXCEPTION 
Deed. An exception withdraws from operation of deed 
part of thing granted which would otherwise pass to 
grantee. 
Insurance policy. An exclusion of one or more risks. 
Kirkby v. Federal Life Ins. Co., C.C.A.Mich., 35 F.2d 126, 
128. The ob ject of an exception is to exclude that which 
otherwise would be included, to take special cases out of 
a general class, or to guard against misinterpretation. 
"Reservation" and "proviso" compared. A "reservation" 
creates some new right in grantor while an "exception" 
withholds from grant title to some part of property 
which would otherwise pass. Clark v. Pauley, 291 Ky. 
637, 165 S.W.2d 161, 162. A reservation does not affect 
the description of the property conveyed, but retains to 
the grantor some right upon the property, as an ease
ment, whereas an exception operates upon the descrip
tion and withdraws from the description the excepted 
property. Moore v. Davis, 273 Ky. 838, 117 S.W.2d 1033, 
1035. A "reservation" is always of something taken 
back out of that which is clearly granted, while an 
"exception" is of some part of the estate not granted at 
all. Lewis v. Standard Oil Co. of California, C.C.A.Cal., 
88 F.2d 512, 514. An exception exempts, absolutely, 
from the operation of an engagement or an enactment; 
a proviso, properly speaking, defeats their operation, 
conditionally. An exception takes out of an engagement 
or enactment something which would otherwise be part 
of the subject-matter of it; a proviso avoids them by way 
of defeasance or excuse. Reservation reserves to grant
or some new interest out of thing granted, while excep
tion excludes from operation of grant some existing part 
of estate. Petty v. Griffith, Mo., 165 S.W.2d 412, 414; U. 
S. v. 1,010.8 Acres, More or Less, Situate in Sussex 
County, Del., D.C.Del., 56 F.Supp. 120, 128. 
It has also been held however that a "proviso" and an 
"exception" are substantially the same thing, and that 
the terms are frequently used interchangeably for syn
onymous terms. Victory Oil Co. v. Hancock Oil Co., 270 
P.2d 604, 61l. 
Compare also Variance. 
Statutory laws. An exception in a statute is a clause 
designed to reserve or exempt some individuals from the 
general class of persons or things to which the language 
of the act in general attaches. The off ice of an "excep
tion" in a statute is to except something from the 
operative effect of a statute or to qualify or restrain the 
generality of the substantive enactment to which it is 
attached, and it is not necessarily limited to the section 
of the statute immediately fo llowing or preceding. Gat
liff Coal Co. v. Cox, C.C.A.Ky., 142 F.2d 876, 882. Two 
statutes relating to same subject must be read together, 
and provisions of one having special application to par
ticular subject will be deemed an "exception" to other 
statute general in its terms. Eagleton v. Murphy, 348 
Mo. 949, 156 S.W.2d 683, 685. See Grandfather clause. 
Exceptional circumstances. Conditions which are out 
of the ordinary course of events; unusual or extraordi
nary circumstances. For example, lack of original juris
diction to hear and determine a case constitutes "excep-
560 
tional circumstance" as basis for raising question for the 
first time on habeas corpus. Wesley v. Schneckloth, 55 
Wash.2d 90, 346 P.2d 658, 660. 
Exceptio non adimpleti contractus /;}ksepsh(iy)ow non 
red;}mpliytay k;}ntrrekt;}s/. An exception in an action 
fo unded on a contract involving mutual duties or obli
gations, to the effect that the plaintiff is not entitled to 
sue because he has not performed his own part of the 
agreement. 
Exceptio non solutre pecunire /;}ksepsh(iy)ow non 
s;}l(y)uwtiy p;}kyuwniyiy/. A plea that the debt in suit 
was not discharged by payment (as alleged by the ad
verse party) notwithstanding an acquittance or receipt 
given by the person to whom the payment is stated to 
have been made. 
Exceptio nulla est versus actionem qure exceptionem 
perimit /;}ksepsh(iy)ow n;)l;} est v;)rs;}s rekshiyown;}m 
kwiy ;}ksepshiyowniy p;)r;}m;}t/. There is [ can be] no 
plea against an action which destroys [the matter of] the 
plea. 
Exceptio pacti con venti / ;}ksepsh(iy)ow prektay k;}nven
tay /. An exception of compact; an exception or plea 
that the plaintiff had agreed not to sue. 
Exceptio pecunire non numeratre /;}ksepsh(iy)ow 
p;}kyuwniyiy non n(y)uwm;}reytiy/. An exception or 
plea of money not paid; a defense which might be set up 
by a party who was sued on a promise to repay money 
which he had never received. 
Exceptio peremptoria /;}ksepsh(iy)ow p;}remtoriy;}/. A 
peremptory exception; called also "perpetua, " (perpet
ual); one which forever destroyed the subject-matter or 
ground of the action (qUEe semper rem de qua agitur 
perimit); such as the exceptio doli mali, the exceptio 
metus, etc. 
Exceptio plurium concubentium /;}ksepsh(iy)ow 
pl(y)uriy;}m konkyuwbensh(i y);}m/. The plea or defense 
of several lovers (i.e. multiple access) in paternity ac
tions. Yarmark v. Strickland, Fla.App., 193 So.2d 212. 
Exceptio probat regulam /;}ksepsh(iy)ow prowb;}t 
regy;}l;}m/ . The exception proves the rule. Sometimes 
quoted with the addition "de rebus non exceptis " ("so far 
as concerns the matters not excepted"). 
Exceptio qure firmat legem, exponit legem / ;}ksep
sh(iy)ow kwiy f;)rm;}t liyj;}m, ;}kspown;}t liyj;}m/. An 
exception which confirms the law explains the law. 
Exceptio quoque regulam declarat /;}ksepsh(iy)ow 
kwowkwiy regy;}l;}m d;}kler;}t/. The exception also de
clares the rule. 
Exceptio rei judicatre /;}ksepsh(iy)ow riyay juwd;}key
tiy /. An exception or plea of matter adjudged; a plea 
that the subject-matter of the action had been deter
mined in a previous action. 
Exceptio rei venditre et traditre /;}ksepsh(iy)ow riyay 
vend;}tiy et trred;}tiy / . An exception or plea of the sale 
and delivery of the thing. This exception presumes that 
there was a valid sale and a proper tradition; but

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561 
though, in consequence of the rule that no one can 
transfer to another a greater right than he himself has, 
no property was transferred, yet because of some partic
ular circumstance the real owner is estopped from con
testing it. 
Exceptio semper ultin.:o ponenda est I ;)ksepsh(iy)ow 
semp;)r ollt;)mow p;)nend;) est/. An exception should 
always be put last. 
Exceptio senatusconsulti macedoniani I ;)ksepsh(iy)ow 
s;)neyd;)sk;)nsolltay mres;)d6wniyeynay I. A defense to an 
action for the recovery of money loaned, on the ground 
that the loan was made to a minor or person under the 
paternal power of another; so named from the decree of 
the senate which forbade the recovery of such loans. 
Exceptio senatusconsulti velleiani I ;)ksepsh(iy )ow 
s;)neyd;)sk;)nsolltay veliyeynay I. A defense to an action 
on a contract of suretyship, on the ground that the 
surety was a woman and therefore incapable of becom
ing bound for another; so named from the decree of the 
senate forb idding it. 
Exceptio temporis I;)ksepsh(iy)ow temp;)r;)s/. An excep
tion or plea analogous to that of the statute of limita
tions in our law; viz., that the time prescribed by law 
for bringing such actions has expired. 
Exceptis excipiendis I ;)ksept;)s ;)ksipiyend;)s/. Lat. 
With all necessary exceptions. 
Exceptor. In old English law, a party who entered an 
exception or plea. 
Except right of way. Recitals "less the right of way" 
and "except right of way" in granting clause of deed 
have well-defined accepted certain and unambiguous 
meaning by which grantor conveys entire interest in 
servient estate and at same time expressly recognizes 
and acknowledges dominant estate. Jennings v. Amera
da Petroleum Corporation, 179 Okl. 561, 66 P.2d 1069, 
1071. 
Excerpta I ;)ksolrpt;)1 or excerpts I eks;)rpts/. Extracts. 
Ex certa scientia leks s�rt;) sayensh(iy);)/. Of certain or 
sure knowledge. These words were anciently used in 
patents, and imported full knowledge of the subject-mat
ter on the part of the king. 
Excess. Act or amount which goes beyond that which is 
usual, proper, or necessary. Degree or amount by which 
one thing or number exceeds another. See also Exces
sive. 
Excess clause. An "excess clause" in insurance policy 
limits liability to the amount of loss in excess of the 
coverage provided by other insurance. Federal Kemper 
Ins. Co., Inc. v. Health Ins. Admin., Inc., 424 Mich. 537, 
383 N.W.2d 590, 592. In insurance policy, such clause 
provides for insurer's liability up to limits of policy 
covering excess loss only after exhaustion of other valid 
insurance. Underground Const. Co., Inc. v. Pacific In
demo Co., 49 Cal.App.3d 62, 122 Cal.Rptr. 330, 333. See 
also Excess policy. 
Black's Law Dictionary 6th Ed.-1 3 
EXCESSIVE FINE OR PENALTY 
Excess condemnation. Taking more property . under 
condemnation than is actually needed. See Condemna
tion. 
Excess insurance. That amount of insurance coverage 
which is beyond the dollar amount of coverage of one 
carrier but which is required to pay a particular loss as 
distinguished from "other insurance" which may be 
used to pay or contribute to the loss. See also Excess 
policy. 
Excess jurisdiction. Such exists where a court, having 
jurisdiction of persons and subject matter of the case 
before it, exceeds its power in trial of such case by 
dealing with matters about which it is without power or 
authority to act; and error in court's ruling is not 
synonymous with ruling in excess of jurisdiction. ROo 
brock V. Robrock, 105 Ohio App. 25, 151 N.E.2d 234, 239. 
See Excess of jurisdiction. 
Excessive. Greater than what is usual or proper. A 
general term for what goes beyond just measure or 
amount. Austin St. Ry. CO. V. Oldham, Tex.Civ.App., 
109 S.W.2d 235, 237. Tending to or marked by excess, 
which is the quality or state of exceeding the proper or 
reasonable limit or measure. 
Excessive assessment. A tax assessment grossly dispro
portionate as compared with other assessments. South
ern California Telephone CO. V. Los Angeles County, 45 
Cal.App.2d 111, 11 3 P.2d 773, 776. 
Excessive bail. The 8th Amendment to the U.S. Consti
tution, as well as the constitutions of the various states, 
prohibits excessive baiL Refers to bail in a sum more 
than will be reasonably sufficient to prevent evasion of 
the law by flight or concealment; bail which is per se 
unreasonably great and clearly disproportionate to the 
off ense involved, or shown to be so by the special cir
cumstances of the particular case. Blunt V. U.S., D.C. 
D.C. 322 A.2d 579. Bail set at higher figure than 
amount reasonably calculated to fulfill purpose of assur
ing that accused will stand trial and submit to sentence 
if found guilty is "excessive" under 8th Amendment. 
Stack V. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. 
Excessive damages. See Damages. 
Excessive drunkenness. Drunkenness is excessive 
where a person is so far deprived of his reason and 
understanding as to render him incapable of under
standing character and consequences of his act. See 
Driving while intoxicated. 
Excessive fine or penalty. The 8th Amendment to the 
U.S. Constitution, as well as the constitutions of the 
various states, prohibits excessive fines. A state may 
not constitutionally imprison a person for inability to 
pay a fine if he would not have been imprisoned on a 
showing of ability to pay the fine and on payment of the 
fine. Tate V. Short, 401 U.S. 395, 91 S.Ct. 668, 28 
L.Ed.2d 130. Any fine or penalty which seriously im
pairs the capacity of gaining a business livelihood. See 
Corporal punishment; Excessive punishme nt; Punishment.

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EXCESSIVE FORCE 
Excessive force. That amount of force which is beyond 
the need and circumstances of the particular event or 
which is not justified in the light of all the circumstanc
es as in the case of deadly fo rce to protect property as 
contrasted with protecting life. See Self defense. 
Excessively. To excess. 
Excessively intoxicated. Exists where one is so intoxi
cated as to be so far deprived of his reason and under
standing as to render him incapable of knowing the 
character and consequences of his act. See Driving while 
intoxicated; Excessive drunkenness. 
Excessive punishment. Any sentence or fine which is 
not commensurate with the gravity of the off ense or the 
criminal record of the def endant. Excessive punish
ments under 8th Amendment are those which by their 
length or severity are greatly disproportionate to of
fenses charged. Naked City, Inc. v. State, Ind.App. 3 
Dist., 460 N.E.2d 151, 158. Excessive length of a sen
tence may be cruel and unusual punishment within the 
meaning of the prohibition in the 8th Amendment, U.S. 
Constitution. Weems v. U. S., 217 U.S. 349, 30 S.Ct. 544, 
54 L.Ed. 793. See Corporal punishment; Excessive fine 
or penalty; Punishment. 
Excessive speed. Automobile's speed is "excessive" 
whenever it places car beyond driver's control. 
Excessive verdict. A verdict which is result of passion 
or prejudice. Babb v. Murray, 26 Cal.App.2d 153, 79 
P.2d 159, 160. The test of whether a verdict is "exces
sive" is whether the amount thereof is such as to shock 
the conscience of the court. Scheidegger v. Thompson, 
Mo.App., 174 S.W.2d 216, 222. See Remittitur. 
Excessivum in jure reprobatur. Excessus in re quali
bet jure reprobatur communi / eksesayv�m in juriy 
repr�beyt�r. ekses�s in riy kweyl�b�t juriy repr�beyt�r 
k�myuwnay /. Excess in law is reprehended. Excess in 
anything is reprehended at common law. 
Excess limits. Insurance coverage against losses in ex
cess of specified limit. 
Excess of jurisdiction. A case in which court has 
initially proceeded properly within its jurisdiction but 
steps out of jurisdiction in making of some order or in 
the doing of some judicial act. Olson v. District Court of 
Salt Lake County, 93 Utah 145, 71 P.2d 529, 534. Acts 
which exceed defined power of court in any instance. 
Abelleira v. District Court of Appeal, Third Dist., 17 
Cal.2d 280, 109 P.2d 942, 948. A departure by a court 
from those recognized and established requirements of 
law, however close apparent adherence to mere form in 
method of procedure, which has the effect of depriving 
one of a constitutional right, is an "excess of jurisdic
tion." Wuest v. Wuest, 53 Cal.App.2d 339,127 P.2d 934, 
937. See also Excess jurisdiction. 
Excess or surplus water. Water which is flowing in 
stream in addition to what may be termed adjudicated 
waters. Any water not needed for reasonable beneficial 
uses of those having prior rights is "excess or surplus 
water". City of Pasadena v. City of Alhambra, 33 Ca1.2d 
908, 207 P.2d 17, 28. 
562 
Excess policy. One that provides that the insurer is 
liable only for the excess above and beyond that which 
may be collected on other insurance. Brownsville Fab
rics, Inc. v. Gulf Ins. Co., Tex.Civ.App., 550 S.W.2d 332, 
337. See also Excess clause. 
Excess profits tax. Tax levied on profits which are 
beyond the normal profits of a business and generally 
imposed in times of national emergency such as war to 
discourage profiteering. The Internal Revenue Code 
also imposes a tax on corporations who accumulate an 
unreasonable surplus of profits rather than paying such 
out as dividends. I.R.C. § 531 et seq. See Accumulated 
earnings tax. 
Exchange. To barter; to swap. To part with, give or 
transfer for an equivalent. Kessler v. United States, 
C.C.A.Pa., 124 F.2d 152, 154. To transfer goods or 
services for something of equal value. Rosenberg v. 
State, 12 Md.App. 20, 276 A.2d 708, 711. Act of giving 
or taking one thing for another. United States v. Paine, 
D.C.Mass., 31 F.Supp. 898, 900. Contract by terms of 
which specific property is given in consideration of the 
receipt of property other than money. Capps v. Mines 
Service, 175 Or. 248, 152 P.2d 414, 416. Mutual grant of 
equal interests, the one in consideration of the other. 
Hale v. Helvering, 66 App.D.C. 242, 85 F.2d 819, 821, 
822. Mutual transfer of property other than for money 
although one of parties may pay a sum of money in 
addition to property. Transaction in which one piece of 
property, usually something other than money or its 
equivalent, is given in return for another piece of prop
erty. Hadley Falls Trust Co. v. United States, C.C.A. 
Mass., 11 0 F.2d 887, 891. Transfer of property for 
property or some value other than money. Burger-Phil
lips Co. v. Commissioner of Internal Revenue, C.C.A. 
Ala., 126 F.2d 934, 936. Transfers of enduring interests 
and not such as must immediately be reconveyed in 
fulfillment of preconceived plan. Morgan v. Helvering, 
C.C.A.N.Y., 11 7 F.2d 334, 336. The criterion in deter
mining whether a transaction is a sale or an exchange is 
whether there is a determination of value of things 
exchanged, and if no price is set for either property it is 
an "exchange". Gruver v. Commissioner of Internal 
Revenue, C.C.A.D.C., 142 F.2d 363, 366. The mutual 
transfers must be in kind, and any transaction into 
which money enters, either as the consideration or as a 
basis of measure is excluded. Trenton Cotton Oil Co. v. 
C. I. R., C.C.A.Tenn., 147 F.2d 33, 36. Reciprocal trans
fers. Helvering v. William Flaccus Oak Leather Co., 
313 U.S. 247, 61 S.Ct. 878, 880, 85 L.Ed. 1310; Harwick 
v. Commissioner of Internal Revenue, C.C.A.Minn., 133 
F.2d 732, 737. 
Commerce or trade in goods, currency, or commercial 
paper. 
Any organization, association, or group of persons, 
incorporated or not, which constitutes, maintains, or 
provides a market place or facilities for bringing togeth
er purchasers and sellers of securities, and includes the 
market place and facilities maintained by such an ex
change. A major stock and bond exchange is the New 
York Stock Exchange. Similar exchanges exist for the

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563 
trading of commodities; e.g. New York Commodities 
Exchange; Minneapolis Grain Exchange; Chicago Board 
of Trade. Trading in securities is controlled by the 
Securities and Exchange Commission; trading in com
modities by the Commodity Futures Trading Commis
sion. 
For Arbitration of exchange; Dry exchange; First of 
exchange, and Owelty (Owelty of exchange), see those 
titles. For Bill of exchange, see Bill. See also Barter; 
Sale or exchange. 
Commercial law. A negotiation by which one person 
transfers to another funds which he has in a certain 
place, either at a price agreed upon or which is fixed by 
commercial usage. The process of settling accounts or 
debts between parties residing at a distance from each 
other, without the intervention of money, by exchanging 
orders or drafts, called bills of exchange. The payment 
of debts in different places by an exchange or transfer of 
credits. The profit which arises from a maritime loan , 
when such profit is a percentage on the money lent, 
considering it in the light of money lent in one place to 
be returned in another, with a difference in amount in 
the sum borrowed and that paid, arising from the differ
ence of time and place. 
Conveyancing. A mutual grant of equal interests (in 
lands or tenements), the one in consideration of the 
other. 
Like kind exchange. See Like-kind exchange. 
Exchange broker. One who negotiates bills of exchange 
drawn on foreign countries or on other places in the 
same country. One who makes and concludes bargains 
for others in matters of money or merchandise. 
Exchange offer. In a bilateral contract, such consti
tutes part of the consideration for the ultimate contract 
when such offer is accepted. 
Exchange rate. The value of one country's money in 
terms of the value of another country's currency (e.g. , 
dollar vs. pound). Price at which the currency of one 
country can be converted into that of another country. 
See also Foreign exchange rate; Rate (Rate of exchange). 
Exchange ratio. The number of shares an acquiring 
company must give, or exchange, for each share of an 
acquired company in a merger. 
Exchequer lekschek::lr/. That department of the Eng
lish government which has charge of the collection of 
the national revenue; the treasury department. 
It is said to have been so named from the chequered 
cloth, resembling a chess-board, which anciently covered 
the table there, and on which, when certain of the king's 
accounts were made up, the sums were marked and 
scored with counters. 3 Bl.Comm. 44. 
For Court of Exchequer and Court of Exchequer Cham
ber, see those titles. 
Exchequer bills. Bills of credit issued in England by 
authority of parliament. 
Instruments issued at the exchequer, under the au
thority, for the most part, of acts of parliament passed 
EXCLUSION 
for the purpose, and containing an engagement on the 
part of the government for repayment of the principal 
sums advanced with interest. 
Exchequer division. A division of the English high 
court of justice, to which the special business of the 
court of exchequer was specially assigned by section 34 
of the judicature act of 1873. Merged in the queen's 
bench division from and after 1881, by order in council 
under section 31 of that act. 
Excise lieu property tax. Tax on gross premiums re
ceived and collected by designated classes of insurance 
companies. United Pacific Ins. Co. v. Bakes, 57 Idaho 
537, 67 P.2d 1024, 1029. 
Excise tax. A tax imposed on the performance of an act, 
the engaging in an occupation, or the enjoyment of a 
privilege. Rapa v. Haines, Ohio Com.Pl., 101 N.E.2d 
733, 735. A tax on the manufacture, sale, or use of 
goods or on the carrying on of an occupation or activity, 
or a tax on the transfer of property. In current usage 
the term has been extended to include various license 
fees and practically every internal revenue tax except 
the income tax (e.g. , federal alcohol and tobacco excise 
taxes, IRC § 5001 et seq.) 
Excited utterance. In evidence, a statement relating to 
a startling event or condition made while the declarant 
was under the stress of excitement caused by the event 
or condition. It is an exception to the hearsay rule. 
Fed.Evid. Rule 803(2); State v. Emery, 4 Or.App. 527, 
480 P.2d 445, 447. See also Fresh complaint rule; Res 
gestre; Spontaneous declarations. 
Exclusa l::lkskluwz::l/. In old English law, a sluice to 
carry off water; the payment to the fo rd for the benefit 
of such a sluice. 
Exclusion. Denial of entry or admittance. 
In taxation, item of income that is excluded from gross 
income (i.e., not taxed) because of particular I.RC. provi
sion; e.g. , gifts and inheritance (I.RC. § 102); qualified 
scholarships (I.RC. § 11 7). Compare Deduction. 
"Exclusion" from the United States means preventing 
someone from entering the United States who was actu
ally outside of the United States or is treated as being 
so. Kwong Hai Chew v. Colding, N.Y., 344 U.S. 590, 73 
S.Ct. 472, 477, 97 L.Ed. 576. 
Evidence. The action by the trial judge in which he 
excludes from consideration by the trier of fact whatever 
he rules is not admissible as evidence. See also Exclu
sionary Rule. 
Gift tax. The amount which a donor may transfer by 
gift each year without tax consequences. I.RC. 
§ 2503(b). 
Insurance. In insurance policy, "exclusion" is provision 
which eliminates coverage where were it not for exclu
sion, coverage would have existed. Kansas-Nebraska 
Natural Gas Co., Inc. v. Hawkeye-Security Ins. Co., 195 
Neb. 658, 240 N.W.2d 28, 31. Provision in policy speci
fying the situations, occurrences or persons not covered 
by the policy.

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EXCLUSION 
Witness. A trial judge may, under certain circumstanc
es, sequester witnesses and require that they be kept 
apart from other witnesses until they are called to 
testify. 
Exclusionary hearing. Pre-trial hearing at which al
leged illegally obtained evidence is reviewed by trial 
judge to determine whether such is admissable at trial. 
See Fed.R.Crim.P. 12(b)(3). See also Exclusiona ry Rule. 
Exclusionary Rule. This rule commands that where 
evidence has been obtained in violation of the search 
and seizure protections guaranteed by the U.S. Constitu
tion, the illegally obtained evidence cannot be used at 
the trial of the def endant. Under this rule evidence 
which is obtained by an unreasonable search and seizure 
is excluded from admissibility under the Fourth Amend
ment, and this rule has been held to be applicable to the 
States. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 
L.Ed.2d 1081. 
"Good faith exception" to exclusionary rule provides 
that evidence is not to be suppressed under such rule 
where that evidence was discovered by officers acting in 
good faith and in reasonable, though mistaken, belief 
that they were authorized to take those actions. United 
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 
677. This exception recognizes that officers who have 
acted with objective good faith have right to rely upon 
issuing magistrate's determination that substantial ba
sis existed for finding probable cause. State v. Murphy, 
Mo.App., 693 S.W.2d 255, 266. 
See also Counsel, right to; Escobedo Rul e; Fruit of 
poisonous tree doctrine; Good faith exception to exclu
sion ary rule; Illega lly obtained evidence; Independent 
source rule; Inevitable discovery rule; Miranda Rule; Mo
tion to suppress; Suppression hearing; Suppression of 
evidence. 
Exclusionary zoning. Any form of zoning ordinance 
which tends to exclude specific classes of persons or 
businesses from a particular district or area. See also 
Zoning. 
Exclusive. Appertaining to the subject alone, not in
cluding, admitting, or pertaining to any others. Sole. 
Shutting out; debarring from interference or. partic
ipation; vested in one person alone. Apart from all 
others, without the admission of others to participation. 
People on Complaint of Samboy v. Sherman, 158 N.Y. 
S.2d 835, 837. 
Exclusive agency. Grant to agent of exclusive right to 
sell within a particular market or area. A contract to 
give an "exclusive agency" to deal with property is 
ordinarily interpreted as not precluding competition by 
the principal generally, but only as precluding him from 
appointing another agent to accomplish the result. The 
grant of an "exclusive agency to sell," that is, the 
exclusive right to sell the products of a wholesaler in a 
specified territory, ordinarily is interpreted as preclud
ing competition in any form within designated area. 
Navy Gas & Supply Co. v. Schoech, 105 Colo. 374, 98 
P.2d 860, 861. 
564 
Exclusive agency listing. Agreement between a prop
erty owner and a real estate broker whereby the owner 
promises to pay a fee or commission to broker if his real 
property is sold during the listing period, regardless of 
whether the broker is responsible for the sale. Carlson 
v. Zane, 261 Cal.App.2d 399, 67 Cal.Rptr. 747, 749. See 
also Exclusive right (Exclusive right to sell}, Listing. 
Exclusive agent. An agent who has exclusive right to 
sell within a particular market or area. See also Exclu
sive agency. 
Exclusive contract. A contract by which one binds 
himself to sell to or buy from only one person for his 
total requirements. See Entire output contract; Exclusive 
dealing arrangements. 
Exclusive control. Essential prerequisite to application 
of doctrine of res ipsa loquitur is that person to be 
charged have "exclusive control," connoting that no 
other person or entity had any control of instrumentali
ty causing harm. Mahowald' v. Minnesota Gas Co., 
Minn., 344 N.W.2d 856, 862. Under this rule, where a 
thing is shown to be under management of defendant or 
his servants, and accident is such as in ordinary course 
does not happen if those having management use proper 
care, it affords reasonable evidence in absence of expla
nation that the accident arose from want of care. Mack 
v. Reading Co., 377 Pa. 135, 103 A.2d 749, 751. See also 
Res (Res ipsa loquitur). 
Exclusive dealing arrangements. A form of vertical 
integration by contract under which a buyer agrees to 
purchase all its needs of a particular product from the 
seller- i.e., the buyer agrees not to deal in the same 
product with a different supplier. At common law, 
generally agreements to deal exclusively with one seller 
or buyer were upheld, but under the Sherman Act as 
well as the Clayton and Federal Trade Commission Acts, 
such agreements are usually illegal. See also Require
ment contract. 
Exclusive franchise. See Exclusive agency. 
Exclusive jurisdiction. That power which a court or 
other tribunal exercises over an action or over a person 
to the exclusion of all other courts. That forum in 
which an action must be commenced because no other 
fo rum has the jurisdiction to hear and determine the 
action. For example, by statute, actions brought under 
the Securities Exchange Act must be brought in federal 
district court. 
Exclusive and concurrent jurisdiction. The federal 
courts have original and exclusive jurisdiction over cer
tain actions (e.g. controversies between two or more 
states) and concurrent jurisdiction with that of state 
courts in others (e.g. actions' between citizens of different 
states). 
Exclusive license. Exclusive right granted by patent 
holder to licensee to use, manufacture, and sell patented 
article. Permission to do thing and contract not to give 
leave to any one else to do same thing. Overman 
Cushion Tire Co. v. Goodyear Tire & Rubber Co., C.C.A. 
N.Y., 59 F.2d 998, 999. A license which binds licensor

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565 
not to enlarge thereafter the scope of other licenses 
already granted, or increase the number of licenses, is 
an "exclusive license". Mechanical Ice Tray Corpora
tion v. General Motors Corporation, C.C.A.N.Y., 144 F.2d 
720, 725. See also Exclusive agency; License. 
Exclusive licensee. One granted exclusive right and 
license to use, manufacture, and sell patented article. 
Deitel v. Chisholm, C.C.AN.Y., 42 F.2d 172, 173. One 
having exclusive right to use patented method and appa
ratus in designated territory. Paul E. Hawkinson Co. v. 
Carnell, C.C.APa., 11 2 F.2d 396, 398. 
Exclusive listing. See Exclusive agency listin g. 
Exclusively. Apart from all others; only; solely; sub
stantially all or for the greater part. To the exclusion of 
all others; without admission of others to participation; 
in a manner to exclude. Standard Oil Co. of Texas v. 
State, Tex.Civ.App., 142 S.W.2d 519, 521, 522, 523. 
Exclusively used. The phrase in provision exempting 
from taxation properties exclusively used for religious 
worship, for schools or for purposes purely charitable, 
has reference to primary and inherent as over against a 
mere secondary and incidental use. Salvation Army v. 
Hoehn, Mo., 354 Mo. 107, 188 S.W.2d 826, 830. 
Exclusive ownership. Ownership free from any kind of 
legal or equitable interest in any one else. See Fee 
simple. 
Exclusive possession. Exclusive possession by adverse 
possessor means that adverse possessor must show an 
exclusive dominion over the land and an appropriation 
of it to his own use and benefit, and not for another. W. 
T. Carter & Bro. v. Holmes, 131 Tex. 365, 11 3 S.W.2d 
1225, 1226. Possession may be "exclusive" so as to 
entitle possessor to title by adverse possession, notwith
standing that the land is subject to exercise of easement 
by private party. Young v. City of Lubbock, Tex.Civ. 
App., 130 S.W.2d 418, 420. See also, Adverse posses
sion. 
Exclusive right. One which only the grantee thereof 
can exercise, and from which all others are prohibited or 
shut out. 
Exclusive right to sell. An "exclusive right to sell" 
agreement listing real property for sale prohibits the 
owner from selling his property either by himself or 
through another broker without liability while the prop
erty is listed with the original broker. Foltz v. Beg
noche, 222 Kan. 383, 565 P.2d 592, 595. See Exclusive 
agency listin g. 
Exclusive use. As used in law authorizing registration 
of trademarks, means exclusive use not only of specific 
mark but also any other confusingly similar mark or 
term. McKesson & Robbins v. Charles H. Phillips 
Chemical Co., C.C.AConn., 53 F.2d 10 11. 
Exclusive use, as essential element of acquisition of 
easement by prescription, means that exercise of right 
shall not be dependent upon similar right in others, but 
use may be shared with owner of servient estate. White 
v. Wheatland Irr. Dist., Wyo., 413 P.2d 252, 260. Exclu-
EXCOMMUNICATO RECAPIENDO 
sive use, for purpose of establishing a right in easement 
by adverse user, does not mean use to exclusion of use 
by all others, but exclusive use under claim of right 
requires only that right claimed by adverse user be not 
dependent on right of any one else to use way and may 
be established by common user thereof with owner of 
servient land and without any subjective claim of right. 
Feldman v. Knapp, 196 Or. 453, 250 P.2d 92, 102. 
Ex colore / eks k�16riy / . By color; under color of; under 
pretense, show, or protection of. Thus, ex colore officii, 
under color of office. 
Ex comitate / eks kom�teytiy /. Out of comity or courte
sy. 
Excommengement / eksk�menjm�nt/. Excommunica
tion (q.v.). 
Ex commodato / eks kom�deytow /. From or out of loan. 
A term applied in the old law of England to a right of 
action arising out of a loan (commodatum). 
Excommunication. A sentence of censure pronounced 
by one of the spiritual courts for off enses falling under 
ecclesiastical cognizance. It is described as two-f old: (1) 
The lesser excommunication, which is an ecclesiastical 
censure, excluding the party from the sacraments; (2) 
the greater, which excludes him from the company of all 
Christians. Formerly, too, an excommunicated man was 
under various civil disabilities. He could not serve upon 
juries, or be a witness in any court; neither could he 
bring an action to recover lands or money due to him. 
These penalties were abolished in England by St. 53 
Geo. III, c. 127. Excommunication is still a censure 
under Canon Law. See Canons 1331-1335 (Code, 1983). 
Excommunicato capiendo / eksk�myuwn�keytow krep
iyendo w/. In ecclesiastical law, a writ issuing out of 
chancery, fo unded on a bishop's certificate that the 
defendant had been excommunicated, and requiring the 
sheriff to arrest and imprison him, returnable to the 
king's bench. 
Excommunicato deliberando / eksk�myuwn�keytow 
d�lib�rrendow/. In old English law, a writ to the sheriff 
for delivery of an excommunicated person out of prison, 
upon certificate from the ordinary of his conformity to 
the ecclesiastical jurisdiction. 
Excommunicato interdicitur omnis actus legitimus, 
ita quod agere non potest, nec aliquem convenire, 
licet ipse ab allis possit conveniri / eksk�myuwn�key
tow int�rdis�t�r 6mn�s rekt�s l�jit�m�s, ayt� kwod rej�riy 
non p6wt�st, nek rebkwem konv�nayriy, lis�t ipsiy reb 
eyliy�s p6s�t konv�nayray /. Every legal act is fo rbidden 
an excommunicated person, so that he cannot act, nor 
sue any person, but he may be sued by others. 
Excommunicato recapiendo / eksk�myuwn�keytow r�
krepiyendow /. A writ commanding that persons excom
municated, who for their obstinacy had been committed 
to prison, but were unlawfully set free before they had 
given caution to obey the authority of the church, 
should be sought after, retaken, and imprisoned again.

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EX COMPARATIONE SCRIPTORUM 
Ex comparatione scriptorum I eks komp�reyshiyowniy 
skripto r�m/. By a comparison of writings or handwrit
ings. A term in the law of evidence. 
Ex concessis I eks k�nses�s/. From the premises grant
ed. According to what has been already allowed. 
Ex consulto I eks bns�ltow I. With consultation or de
liberation. 
Ex continenti leks kont�nentay/. Immediately; with
out any interval or delay; incontinently. A term of the 
civil law. 
Ex contractu leks k�ntrrekt(y)uw/. From or out of a 
contract. In both the civil and the common law, rights 
and causes of action are divided into two classes,-those 
arising ex contractu (from a contract), and those arising 
ex delicto (from a delict or tort). 3 Bl.Comm. 117. 
Where cause of action arises from breech of a promise 
set forth in contract, the action is "ex contractu ': but 
where it arises from a breech of duty growing out of 
contract, it is "ex delicto". Eads v. Marks, 39 C.2d 807, 
249 P.2d 257, 260. See also Ex delicto. 
Excul pate I eksk�l peytl �ksk�l peytl . Term is employed 
in sense of excuse or justification. State v. Langdon, 46 
N.M. 277, 127 P.2d 875, 876. 
Exculpatory leksk�lp�t(o)riy/. Clearing or tending to 
clear from alleged fault or guilt; excusing. Baird v. 
State, 246 S.W.2d 192, 195. See Exculpa tory statement or 
evidence. Compare Inc rimi nate. 
Exculpatory clause. A contract clause which releases 
one of the parties from liability for his or her wrongful 
acts. A provision in a document which protects a party 
from liability arising, in the main, from negligence; 
such clause is common in leases, contracts and trusts. 
Such clause in favor of a trustee in will implies that 
trustee has power which he purports to execute, and it 
exculpates him where this power is exercised in good 
faith. In re Wacht's Estate, Sur., 32 N.Y.S.2d 871, 897. 
Exculpatory statement or evidence. A statement or 
other evidence which tends to justify, excuse or clear the 
defendant from alleged fault or guilt. State v. Cobb, 2 
Ariz.App. 71, 406 P.2d 421, 423. Declarations against 
declarant's interest which indicate that defendant is not 
responsible for crimes charged. U.S. v. Riley, C.A.lowa, 
657 F.2d 1377, 1385. Evidence which extrinsically tends 
to establish defendant's innocence of crimes charged as 
differentiated from that which although favorable, is 
merely collateral or impeaching. Com. v. Jeter, 273 
Pa.Super. 83, 416 A.2d 11 00, 11 02. For purposes of rule 
constraining State from disposing of potentially exculpa
tory evidence, is evidence which clears or tends to clear 
accused person from alleged guilt. Gibson v. State, 110 
Idaho 63 1, 718 P.2d 283, 285. Compare Incriminating 
evidence. 
Ex curia I eks kyuriy�/. Out of court; away from the 
court. 
Excusable. Admitting of excuse or palliation. Justifi
able, pardonable, allowable, defensible. Tyler v. Cowen 
Const., Inc., 216 Kan. 401, 532 P.2d 1276, 1281. As used 
566 
in the law, this word implies that the act or omission 
spoken of is on its face unlawful, wrong, or liable to 
entail loss or disadvantage on the person chargeable, but 
that the circumstances attending it were such as to 
constitute a legal "excuse" for it, that is, a legal reason 
for withholding or foregoing the punishment, liability, 
or disadvantage which otherwise would fo llow. See Jus
tification; Legal excuse. 
Excusable assault. One committed by accident or mis
fortune in doing any lawful act by lawful means, with 
ordinary caution and without any unlawful intent. Peo
ple v. O'Connor, 82 App.Div. 55, 81 N.Y.S. 555. See e.g. 
Self-defense. 
Excusable homicide. See Homicide. 
Excusable neglect. In practice, and particularly with 
reference to the setting aside of a judgment taken 
against a party through his "excusable neglect," this 
means a failure to take the proper steps at the proper 
time, not in consequence of the party's own carelessness, 
inattention, or willful disregard of the process of the 
court, but in consequence of some unexpected or un
avoidable hindrance or accident, or reliance on the care 
and vigilance of his counsel or on promises made by the 
adverse party. As used in rule (e.g. Fed.R.Civil P. 6(b)) 
authorizing court to permit an act to be done after 
expiration of the time within which under the rules 
such act was required to be done, where failure to act 
was the result of "excusable neglect", quoted phrase is 
ordinarily understood to be the act of a reasonably 
prudent person under the same circumstances. Conlan 
v. Conlan, Ky., 293 S.W.2d 710, 712. For purposes of 
motion to vacate judgment, "excusable neglect" is that 
neglect which might have been the act of a reasonably 
prudent person under the circumstances. Hollings
worth v. American Finance Corp., 86 Wis.2d 172, 271 
N.W.2d 872, 878. 
Excusat aut extenuat delictum in capitalibus quod 
non operatur idem in civilibus I �kskyuwz�t ot �ksten
yuw�t d�likt�m in krep�teyl�b�s kwod non op�reyt�r 
ayd�m in s�vil�b�s/. That may excuse or palliate a 
wrongful act in capital cases which would not have the 
same effect in civil injuries. 
Excusatio le kskyvwzeysh(iy)ow/. In the civil law, an 
excuse or reason which exempts from some duty or 
obligation. 
Excusator lekskyuwzeyt�r/. In English law, an excuser. 
In old German law, a defendant; he who utterly denies 
the plaintiffs claim. 
Excusatur quis quod clameum non opposuerit, ut si 
toto tempore litigii fuit ultra mare quacunque occa
sione I ekskyuwzeyt�r kwis kwod kleymiy�m non 
�poz(y)uwer�t, �t say towtow temp�riy btijiyay fyuw�t 
�ltr� mreriy kweyk�1Jkwiy �keyzhiyowniy I. He is ex
cused who does not bring his claim, if, during the whole 
period in which it ought to have been brought, he has 
been beyond sea for any reason. 
Excuse. A reason alleged for doing or not doing a thing. 
A matter alleged as a reason for relief or exemption

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567 
from some duty or obligation. That which is offe red as 
a reason for being excused, or a plea off ered in extenua
tion of a fault or irregular deportment. It is that plea 
or statement made by the accused which arises out of 
the state of facts constituting and relied on as the cause. 
See also Defense. 
Excuss. To seize and detain by law. 
Excussio I�ksk;}s(h)(i)yow/. In civil law, a diligent prose
cution of a remedy against a debtor. The exhausting of 
a remedy against a principal debtor before resorting to 
his sureties. Translated "discussion" (q.v.). 
Ex debito justitiae I eks deb�tow j�stishiyiy I. From or 
as a debt of justice; in accordance with the requirement 
of justice; of right; as a matter of right. The opposite of 
ex gratia (q.v.). 3 Bl.Comm. 48, 67. 
Ex defectu sanguinis leks d�fekt(y)uw sre1Jgw�n�sl. 
From failure of blood; for want of issue. 
Ex delicto I eks d�liktow I. From a delict, tort, fault, 
crime, or malfeasance. In both the civil and the com
mon law, obligations and causes of action are divided 
into two classes-those arising ex contractu (out of a 
contract), and those ex delicto. The latter are such as 
grow out of or are fo unded upon a wrong or tort, e.g., 
trespass, trover, replevin. See also Ex contractu. 
Where cause of action arises from breach of a promise 
set fo rth in contract, the action is "ex contractu ", but 
where it arises from a breach of duty growing out of 
contract, it is "ex delicto". Eads v. Marks, 39 Ca1.2d 
807, 249 P.2d 257, 260. 
Ex delicto non ex supplicio emergit infamia leks 
d�liktow non eks s�plish(iy)ow �m;}rj�t �nfeymiy�/. Infa
my arises from the crime, not from the punishment. 
Ex delicto trusts. Trusts which are created for illegal 
purposes, the most common of which are trusts created 
to prevent creditors of the settlor from collecting their 
claims out of the property. 
Ex demissione I eks d�mis(h)iyowniy I. (Commonly ab
breviated ex dem.) Upon the demise. A phrase forming 
part of the title of the old action of ejectment. 
Ex directo leks d�rektow/. Directly; immediately. 
Ex diuturnitate temporis, omnia praesumuntur so
lemniter esse acta I eks day�t;}rn�teytiy temp�r�s, om
niy� priyzy�m;}nt�r s�lemn�t�r esiy rekt�/. From length 
of time [after lapse of time] all things are presumed to 
have been done in due fo rm. 
Ex dividend. A synonym for "without dividend." The 
buyer of a stock selling ex-dividend does not receive the 
recently declared dividend. Said of a stock at the time 
when the declared dividend becomes the property of the 
person who owned the stock on the record date. The 
payment date follows the ex-dividend date. When stock 
is sold ex dividend, the seller, not the buyer, has the 
right to the next dividend which has been declared but 
not paid. The ex dividend date is a matter of agreement 
or of convention to be established by the securities 
exchange. On the first day shares are traded without 
the right to receive a dividend, the price will normally 
EXECUTED NOTE 
decline by approximately the amount of the dividend. 
Such shares are often referred to as "trading ex divi
dend." 
Ex-dividend date. The date on which the right to the 
most recently declared dividend no longer goes along 
with the sale of the stock. 
Ex dolo malo leks dowlo mrelow I. Out of fraud; out of 
deceitful or tortious conduct. A phrase applied to obli
gations and causes of action vitiated by fraud or deceit. 
Ex dolo malo non oritur actio leks dowlow mrelow non 
or�t�r reksh(iy)ow I. Out of fraud no action arises; fraud 
never gives a right of action. No court will lend its aid 
to a man who fo unds his cause of action upon an 
immoral or illegal act. 
Ex donationibus autem feoda militaria vel magnum 
serjeantium non continentibus oritur nobis quod
dam nomen generale, quod est socagium I eks d�ney
shiyown�b�s ot�m fyuwd� mil�teriy� vel mregn�m 
s;}rjiyrensh(iy)�m non kont�nent�b�s or�t�r nowb�s 
kwod�m nowm�n jen�reyliy, kwod est s�keyj(iy)
�m/. From grants not containing military fees or grand 
serjeanty, a kind of general name is used by us, which is 
"socage ." 
Exeat I eksiy�t/. A permission which a bishop grants to 
a priest to go out of his diocese; also leave to go out 
generally. For Ne exeat, see that title. 
Execute. To complete; to make; to sign; to perform; to 
do; to follow out; to carry out according to its terms; to 
fulfill the command or purpose of. To perform all 
necessary fo rmalities, as to make and sign a contract, or 
sign and deliver a note. See also Execution. 
Executed. Completed; carried into full effect; already 
done or performed; signed; taking effect immediately; 
now in existence or in possession; conveying an immedi
ate right or possession. Act or course of conduct carried 
to completion. Term imports idea that nothing remains 
to be done. The opposite of executory. See also Execu
tion. 
Executed consideration. A consideration which is 
wholly performed. An act done or value given before 
the making of the agreement. 
Executed contract. Contract which has been fully per
formed by the parties. If performed in part, it is partial
ly executed (executory); if entirely performed, it is fully 
or wholly executed. See also Contract; Executed oral 
agreement; Executory contract. 
Executed estate. Estate in property which is vested. 
See Estate. 
Executed fine. The fine sur cognizance de droit, come 
ceo que il ad de son done; or a fine upon acknowledg
ment of the right of the cognizee, as that which he has 
of the gift of the cognizor. Abolished in England by 3 & 
4 Wm. IV, c. 74. 
Executed gift. See Gift. 
Executed note. Promissory note which has been signed 
and delivered.

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EXECUTED ORAL AGREEMENT 
Executed oral agreement. An oral agreement is not 
"executed" unless it has been fully performed by both 
parties. Walther v. Occidental Life Ins. Co., 40 Cal. 
App.2d 160, 104 P.2d 551, 554. 
Executed remainder. See Remainder. 
Executed sale. See Sale. 
Executed trust. See Trust. 
Executed use. See Use. 
Executio /eks�kyuwsh(iy)o w/. Lat. The doing or fol
lowing up of a thing; the doing a thing completely or 
thoroughly; management or administration. 
In old practice, execution; the final process in an 
action. 
Executio bonorum /eks�kyuwsh(iy)ow b�n6r�m/. In 
old English law, management or administration of 
goods. Ad ecclesiam et ad amicos pertinebit executio 
bonorum, the execution of the goods shall belong to the 
church and to the friends of the deceased. 
Executio est executio juris secundum judicium 
/eks�kyuwsh(iy)ow est eks�kyuwsh(iy)ow jur�s s�k�nd�m 
juwdish(iy)�m/. Execution is the execution of the law 
according to the judgment. 
Executio est finis et fructus legis /eks�kyuwsh(iy)ow 
est fayn�s et fr�kt�s liyj�s/. Execution is the end and 
fruit of the law. 
Executio juris non habet injuriam /eks�kyuwsh(iy)ow 
jur�s non heyb�t �njuriy�m/. The execution of law does 
no injury. 
Execution. Carrying out some act or course of conduct 
to its completion. Northwest Steel Rolling Mills v. 
Commissioner of Internal Revenue, C.C.A.Wash., 11 0 
F.2d 286, 290. Completion of an act. Putting into fo rce. 
The completion, fulfillment, or perfecting of anything, 
or carrying it into operation and effect. 
Execution of contract includes performance of all acts 
necessary to render it complete as an instrument and 
imports idea that nothing remains to be done to make 
complete and effective contract. Travelers Ins. Co. v. 
Chicago Bridge & Iron Co., Tex.Civ.App., 442 S.W.2d 
888,895. 
Execution upon a money judgment is the legal process 
of enforcing the judgment, usually by seizing and selling 
property of the debtor. See Writ of execution, below. 
Form of process whereby an official (usually a sheriff) 
is directed by way of an appropriate judicial writ to seize 
and sell so much of the debtor's nonexempt property as 
is necessary to satisfy a judgment. Process of carrying 
into effect the directions in a decree or judgment. Foust 
v. Foust, 47 Ca1.2d 121, 302 P.2d 11, 13. 
In criminal law, refers to carrying out of death sen
tence (capital punishment). 
Body execution. An order of court which commands the 
officer to take the body of the defendant or debtor; 
generally to bring him before court to pay debt. A 
capias. 
568 
Writ of execution. Formal process issued by court gener
ally evidencing the debt of the defendant to the plaintiff 
and commanding the officer to take the property of the 
defendant in satisfaction of the debt. Unless the court 
directs otherwise, the process to enforce a money judg
ment shall be a writ of execution. Fed.R. Civil P. 69. A 
writ of execution is a written demand to bailiff, directing 
him to execute the judgment of the court. Miami Motor 
Sales v. Singleton, Ohio Mun., 94 N.E.2d 819, 822. Pro
cess issuing from a court in a civil action authorizing the 
sheriff or other competent officer to carry out the court's 
decision in favor of the prevailing party. 
For Testatum execution, see Testatum. See also Alias 
execution; Attachment execution; Dormant execution; 
General execution; Judgment execution; Juni or execution; 
Lien of execution; Special execution. 
Execution creditor. See Creditor. 
Executione facienda in withernamium / eks�kyuw
shiy6wniy freshiyend� in wio�rneymiy�m/. A writ that 
lay for taking cattle of one who has conveyed the cattle 
of another out of the county, so that the sheriff cannot 
replevy them. 
Executione judicii / eks�kyuwshiy6wniy juwdishiyay /. 
A writ directed to the judge of an inferior court to do 
execution upon a judgment therein, or to return some 
reasonable cause wherefore he delays the execution. 
Executioner. Person who executes (i.e. carries out) capi
tal punishment. 
Execution lien. An execution lien may be created by 
service of execution, levy upon real estate, and filing of a 
certificate of levy in the proper office of county in which 
real estate is located. Reconstruction Finance Corpora
tion v. Maley, C.C.AIll., 125 F.2d 131, 135. 
Execution of instrument. Completion of instrument, 
including signing and delivery. Execution includes per
fo rmance of all acts necessary to render instrument 
complete and of every act required to give instrument 
validity or to carry it into effect. Northwest Steel 
Rolling Mills v. Commissioner of Internal Revenue, C.C. 
AWash., 11 0 F.2d 286, 290. Execution of written con
tract includes signing, unconditional delivery by promis
or, and acceptance by promisee. Coen v. American 
Surety Co. of New York, C.C.AMo., 120 F.2d 393, 397. 
Execution of judgment or decree. See Execution. 
Execution paree / ekseykyuwsy6wn parey /. In French 
law, a right fo unded on an act passed before a notary, by 
which the creditor may immediately, without citation or 
summons, seize and cause to be sold the property of his 
debtor, out of the proceeds of which to receive his 
payment. It imports a confession of judgment, and is 
not unlike a warrant of attorney. 
Execution sale. A sale by a sheriff or other ministerial 
officer under the · authority of a writ of execution which 
he has levied on property of the debtor. See also Judicial 
sale.

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569 
Executive. As distinguished from the legislative and 
judicial departments (i.e. branches) of government, the 
executive department is that which is charged with the 
detail of carrying the laws into effect and securing their 
due observance. See also Executive department; Execu
tive powers. 
The word "executive" is also used as an impersonal 
designation of the chief executive officer of a state or 
nation. Term also refers to upper level management of 
business. See also Executive employees. 
Executive administration, or ministry. A political 
term in England, applicable to the higher and respon
sible class of public officials by whom the chief depart
ments of the government of, the kingdom are adminis
tered. 
Executive agency. A department of the executive 
branch of government such as the Army and Air Force 
Exchange Service whose activities are subject to statutes 
and whose contracts are subject to judicial review. W. 
B. Fishburn Cleaners Inc. v. Army & Air Force Ex
change Service, D.C.Tex., 374 F.Supp. 162, 165. 
Executive agreement. A treaty-like agreement with 
another country in which the President may bind the 
country without submission to the Senate (as in the case 
of a treaty). United States v. Belmont, 301 U.S. 324, 57 
S.Ct. 758, 81 L.Ed. 113 4. Executive Agreements prevail 
over contrary state law. Even though there is no ex
press constitutional authority for such agreements, their 
constitutional validity has been long established. Unit
ed States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 
11 34. 
Executive capacity. Duties in such capacity relate to 
active participation in control, supervision, and manage
ment of business. Arkansas Amusement Corporation v. 
Kempner, C.C.A.Ark., 57 F.2d 466,473. 
Executive clemency. The power of the chief executive 
(i.e. President or a governor) to pardon or commute a 
criminal sentence as, for example, the power to reduce 
the death penalty to life imprisonment. Art. II, § 2, 
U.S .Const. See also Clemency. 
Executive committee. In business, the body which di
rectly manages the operations between meetings of the 
board of directors; commonly consisting of the principal 
officers and directors. 
Executive department. That branch of government 
charged with carrying out the laws enacted by the 
legislature. The President is the chief executive officer 
of the country and the governor is chief executive officer 
of a state. Used to describe that branch of the govern
ment in contrast to the other two branches; i.e. legisla
tive and judicial. See Art. II, U.S .Const. 
Executive employees. Persons whose duties include 
some form of managerial authority, actually directing 
the work of other persons. Persons whose duties relate 
to active participation in control, supervision and 
management of business, or who administer affairs, or 
who direct, manage, execute or dispense. Steiner v. 
Pleasantville Constructors, 181 Misc. 798, 46 N.Y.S.2d 
EXECUTIVE PRMLEGE 
120, 123. The term executive employee carries the idea 
of supervision of or control over ordinary employees. 
Ralph Knight, Inc. v. Mantel, C.C.A.Mo., 135 F.2d 514, 
517. 
Executive officer. An officer of the executive depart
ment of gover nment; one in whom resides the power to 
execute the laws; one whose duties are to cause the laws 
to be executed and obeyed. Petzak v. Graves, 33 Wis.2d 
175, 147 N.W.2d 294, 297. Officers who are neither 
judicial nor legislative are executive officers. Spivey v. 
State, 69 Okl.Cr. 397, 104 P.2d 263, 277. One who 
assumes command or control and directs course of busi
ness, or some part thereof, and who outlines duties and 
directs work of subordinate employees. President and 
vice president of corporation are executive of ficers. Em
merglick v. Philip Wolf, Inc., C.C.A.N.Y., 138 F.2d 661, 
662. 
Executive order. An order or regulation issued by the 
President or some administrative authority under his 
direction for the purpose of interpreting, implementing, 
or giving administrative effect to a provision of the 
Constitution or of some law or treaty. To have the 
effect of law, such orders must be published in the 
Federal Register. 
Executive order Indian reservation. Reservation cre
ated by order of President withdrawing land within its 
boundaries from settlement or making other disposition 
of it under public land laws of United States. Santa 
Rita Oil & Gas Co. v. Board of Equalization, 101 Mont. 
268, 54 P.2d 117, 122. 
Executive pardon. An executive act of grace exempting 
an individual from punishment for a crime he has 
committed. Such presidential power is authorized by 
Art. II, § 2, U.S.C onst. Similar powers are afforded to 
governors by state constitutions. See also Executive 
clemency; Pardon. 
Executive powers. Authority vested in executive de
partment of federal or state government to execute laws. 
The enumerated powers of the President are provided 
for in Article II of the U.S.C onst. Executive powers of 
governors are provided for in state constitutions. The 
executive powers vested in governors by state constitu
tions include the power to execute the laws, that is, to 
carry them into effect, as distinguished from the power 
to make the laws and the power to judge them. Tucker 
v. State, 218 Ind. 614, 35 N.E.2d 270, 291. See also 
Executive order. 
Executive privilege. This privilege, based on constitu
tional doctrine of separation of powers, exempts the 
executive from disclosure requirements applicable to the 
ordinary citizen or organization where such exemption 
is necessary to the discharge of highly important execu
tive responsibilities involved in maintaining governmen
tal operations, and extends not only to military and 
diplomatic secrets but also to documents integral to an 
appropriate exercise of the executive's domestic decision
al and policy making functions, that is, those documents 
reflecting the frank expression necessary in intra-gov
ernmental advisory and deliberative communications. 5

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EXECUTIVE PRIVILEGE 
U.S.C.A. § 552(b)(1). Black v. Sheraton Corp. of Amer
ica, D.C.D.C., 371 F.supp. 97, 100. However, need for 
confidentiality of high level communications cannot, 
without more, sustain an absolute unqualified presi
dential privilege of immunity from judicial process un
der all circumstances. U. S. v. Nixon, 418 U.S. 683, 94 
S.Ct. 3090, 3106, 3107, 41 L.Ed.2d 1039. As term is 
generally employed, relates to matters of national secur
ity and foreign policy. Young v. Town of Huntington, 
88 Misc.2d 632, 388 N.Y.S.2d 978, 984. See also Privi
lege. 
Executive session. Executive session of a board or 
governmental body is a session closed to the public, and 
at which only such selected persons as the board or 
other body may invite are permitted to be present. 
Blum v. Board of Zoning and Appeals of Town of North 
Hempstead, 1 Misc.2d 668, 149 N.Y.S.2d 5,8. 
Executor(-trix) /;)gzak;)t;)r/. A person appointed by a 
testator to carry out the directions and requests in his 
will, and to dispose of the property according to his 
testamentary provisions after his decease. In re Silver
man's Estate , 6 Ill.App.3d 225, 285 N.E.2d 548, 550. 
"Personal representative" includes "executor." Uni
form Probate Code, § 1-20 1. Compare Admin istrator 
(-trix). 
For Co-executor; General executor; Instituted executor; 
Joint executors; Limited executor; Special execu
tor and Substituted executor, see those titles. 
Civil Law 
A ministerial officer who executed or carried into 
effect the judgment or sentence in a cause. 
Ecclesiastical Law 
Executor a lege constitutus. An executor appointed by 
law; the ordinary of the diocese. 
Executor ab episcopo constitutus, or executor dativus. 
An executor appointed by the bishop; an administrator 
to an intestate. 
Executor a testatore constitutus. An executor appointed 
by a testator. Otherwise termed "executor testamentari
us; " a testamentary executor. 
An executor to the tenor. One who, though not directly 
constituted executor by the will, is therein charged with 
duties in relation to the estate which can only be per
formed by the executor. 
Executor by substitution. A successor executor ap
pointed by testator entitled to succeed to administration 
of estate following resignation of first executor who had 
partially administered upon such estate. In re Stahl's 
Estate, 113 Ind.App. 29, 44 N.E.2d 529, 532. 
Executor creditor. See Creditor. 
Executor dative. See Dative. 
Executor de son tort. See De son tort. 
Executor lucratu8 /eks�kyUwt�r l(y)uwkreyt�s/. An ex
ecutor who has assets of his testator who in his life-time 
570 
made himself liable by a wrongful interference with the 
property of another. 
Executorship. Off ice held by an executor. 
Executory / ;)gzeky;)toriy /. That which is yet to be fully 
executed or performed; that which remains to be car
ried into operation or effect; incomplete; depending 
upon a future performance or event. The opposite of 
executed. 
As to executory Bequest; Contracts; Devise; Estates; 
Remainder; Trust, and Use, see those titles. 
Executory accord. An agreement embodying a prom
ise, express or implied, to accept at some future time a 
stipulated performance in satisfaction or discharge, in 
whole or in part, of any present claim, cause of action or 
obligation, and a promise, express or implied, to render 
such performance. Two principal categories of compro
mise agreements are "executory accord", providing for 
acceptance in future of stated performance in satisfac
tion of claim, and "substituted contract" which itself is 
accepted as substitution for and extinguishment of exist
ing claim. Johnson v. Utile, 86 Nev. 593, 472 P.2d 335, 
337. 
Executory consideration. A consideration which is to 
be performed after the contract for which it is a consid
eration is made. 
Executory contract. A contract that has not as yet 
been fully completed or perfor med. A contract the 
obligation (performance) of which relates to the future. 
Wagstaff v. Peters, 203 Kan. 108,453 P.2d 120, 124. In 
context of Bankruptcy Code, is contract under which 
obligation of both bankrupt and other party to contract 
are so far unperformed that failure of either to complete 
performance would constitute material breach excusing 
performance of either. In re Knutson, C.A.Minn., 563 
F.2d 916, 917. Compare Executed contract. 
Executory contract to sell. Contract under which 
something remains to be done by either party before 
delivery and passing of title. Martin v. John Clay & Co., 
Mo.App., 167 S.W.2d 407, 411. 
Executory devise. Devise of a future estate, and, if the 
executory devisee dies before the event happens, the 
estate goes to the heir at the time of the event, and not 
to the heir at the time of the death of the devisee. The 
happening of the contingency determines who is to take 
the estate, and until that time no one has an interest to 
transmit. By the earlier common law it was an estab
lished rule that a devise of lands, without words of 
limitation, conferred upon the devisee an estate for life 
only. An exception was soon recognized in the case of a 
will, so that an estate in fee could be given without the 
use of the technical words required in a conveyance or 
deed. The gift in such case was known as an "executory 
devise." 
Executory interests. A general term, comprising all 
future estates and interests in land or personalty, other 
than reversions and remainders. A future interest held 
by a third person (not the grantor) which either cuts

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571 
short (shifting) or begins some time after (springing) the 
natural termination of the preceding estate. 
A contingent future interest which: (a) cannot qualify 
as a remainder; (b) is always in favor of a conveyee, and; 
(c) takes effect when the contingency happens as a 
springing use or shifting use under the Statute of Uses 
(1535), or Statute of Wills (1540). 
Executory judgment. Court decision that has not yet 
been carried out; e.g., order to defendant to pay plaintiff 
which has not as yet been fulfilled. 
Executory limitation. A limitation of a future interest 
by deed or will; if by will, it is also called an "executory 
devise." 
Executory process. A civil law process which can be 
resorted to in the following cases, namely: (1) When the 
right of the creditor arises from an act importing confes
sion of judgment, and which contains a privilege or 
mortgage in his favor; (2) when the creditor demands 
the execution of a judgment which has been rendered by 
a tribunal different from that within whose jurisdiction 
the execution is sought. An accelerated procedure, sum
mary in nature, by which holder of a mortgage or 
privilege evidenced by an authentic act importing a 
confession of judgment seeks to effect an ex parte sei
zure and sale of the subject property, without previous 
citation, contradictory hearing or judgment. Cameron 
Brown South, Inc. v. East Glen Oaks, Inc., La.App., 341 
So.2d 450, 457. 
Executory promise. A promise that has not yet been 
performed by the promisor doing whatever act was 
promised. 
Executory sale. See Sale. 
Executory trust. Under this type of trust a further 
conveyance or settlement is to be made by the trustee. 
The test as to whether a trust is an "executory trust" is 
to determine whether settlor has acted as his own con
veyancer and defines precisely the settlement to be 
made, and, if he has, the word "heirs" is one of limita
tion, and if he has not, the trust is executory, and the 
word "heirs" is a word of purchase, and the persons 
coming within such definition have an interest in the 
property. Sutliff v. Aydelott, 373 IlL 633, 27 N.E.2d 529, 
532. 
Executory unilateral accord. An offer to enter a con
tract. 
Executory warranties. Such arise where insured un
dertakes to perform some executory stipulation, as that 
certain acts will be done, or that certain facts will 
continue to exist. 
Executress /;.}gzeky;.}tr;.}s/. A female executor. 
Executrix /;.}gzeky;.}triks/. Female executor. A woman 
who has been appointed by will to execute such will or 
testament. 
Exedos / eyhey60ws/. See Ejidos. 
EXEMPTION 
Exempla illustrant non restringunt legem / egzempb 
il�str;.}nt non r;.}striI)g;.}nt liyj;.}m/. Examples illustrate, 
but do not restrain, the law. 
Exemplars /;.}gzempbrz/. Nontestimonial identification 
evidence taken from defendant; e.g. fingerprints, blood 
samples, voiceprints, lineup identification, handwriting 
samples. 
Exemplary damages / ;.}gzempbriy drem;.}j;.}z/. Damages 
on an increased scale, awarded to plaintiff over and 
above actual or ordinary damages, where wrong done to 
plaintiff was aggravated by circumstances of violence, 
oppression, malice, fraud, or wanton and wicked conduct 
on part of defendant. Goines v. Pennsylvania R R, 208 
Misc. 103, 143 N.Y.S.2d 576, 583. See also Damages 
(Exemplary or punitive damages). 
Exemplification. An official transcript of a document 
from public records, made in form to be used as evi
dence, and authenticated or certified as a true copy. See 
Certified copy. 
Exemplificatione / ;.}gzempl;.}f;.}keyshiyowniy /. A writ 
granted for the exemplification or transcript of an origi
nal record. 
Exemplified copy. Copy of document which has been 
authenticated. See Certified copy. 
Exempli gratia /;.}gzemplay greysh(iy);.}/. For the pur
pose of example, or for instance. Often abbreviated "ex. 
gr." or "e.g. " 
Exemplum /;.}gzempl;.}m/. In the civil law, copy; a writ
ten authorized copy. This word is also used in the 
modern sense of example-ad exemplum constituti sin
gulares non trahi, exceptional things must not be taken 
for examples. 
Exempt. To release, discharge, waive, relieve from lia
bility. To relieve, excuse, or set free from a duty or 
service imposed upon the general class to which the 
individual exempted belongs; as to exempt from mili
tary service. 
To relieve certain classes of property from liability to 
sale on execution, or from taxation, or from bankruptcy 
or attachment. 
See also Exemption; Exemption laws. 
Exempt income. Income that is not subject to state 
and/ or federal taxation. Certain income may be exempt 
from federal but not from state taxation, and vice versa 
(e.g., tax exempt bond interest). 
Exemption. Freedom from a general duty or service; 
immunity from a general burden, tax, or charge. Im
munity from service of process or from certain legal 
obligations, as jury duty, military service, or the pay
ment of taxes. See also Im munity. 
A privilege allowed by law to a judgment debtor, by 
which he may retain property to a certain amount or 
certain classes of property, free from all liability to levy 
and sale on execution, attachment, or bankruptcy. See 
Exemption laws.

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EXEMPTION 
Property exempt in bankruptcy proceedings is provid
ed for under Bankruptcy Code § 522. See Exemption 
laws. 
In taxation, an exemption is an amount allowed LS a 
deduction from adjusted gross income in arriving at 
taxable income. There are two types of exemptions 
allowed; personal and dependency exemptions. Exemp
tions are allowed as fo llows; the taxpayer, the taxpay
er's spouse, the taxpayer who is 65 or older or who is 
blind, the taxpayer's dependent children for whom the 
taxpayer provides more that one half of the dependent's 
support. I.R.C. § 151. See also Dependency exemption. 
Exemption equivalent. The maximum value of assets 
that can be transferred to another party without incur
ring any Federal gift or estate tax because of the appli
cation of the unified tax credit. 
Exemption laws. A privilege allowed by law to a judg
ment debtor, by which he may hold property to a certain 
amount, or certain classes of property, free from all 
liability to levy and sale on execution or attachment. 
Laws enacted by individual states describing the proper
ty of the debtor that cannot be attached by a judgment 
creditor or trustee in bankruptcy to satisfy a debt. See 
Bankruptcy Code § 522. 
Exemption, words of. It is a maxim of law that words 
of exemption are not to be construed to import any 
liability; the maxim expressio llnius exclusio alterius, or 
its converse, exclusio unius inclusio alterius, not apply
ing to such a case. 
Ex empto leks em(p)tow/. Out of purchase; fo unded on 
purchase. A term of the civil law, adopted by Bracton. 
Exempt organization. An organization that is either 
partially or completely exempt from Federal income 
taxation. I.R.C. § 501. See Charitable organizati ons. 
Exempt property. Real estate of religious, educational, 
and charitable organizations, as well as of federal, state 
and local government which is not subject to real estate 
taxes. With respect to property that is exempt in bank
ruptcy, attachment, etc., proceedings, see Exemption; Ex
emption laws. 
Exempts. Persons who are not bound by law, but ex
cused from the performance of duties imposed upon 
others. 
Exempt securities. Securities exempt from registration 
requirements of federal and state securities laws. See 
also Regis tration of securities. 
Exempt transactions. Those dealings in securities 
which fall outside the scope of Securities Act of 1933 and 
Securities Exchange Act. 
Exennium I�kseniy�m/. In old English law, a gift; a 
new year's gift. 
Exequatur leks�kweyt�r/. Lat. Let it be executed. 
An "exequatur" is a written official recognition and 
authorization of a consular of ficer, issued by government 
to which he is accredited. Doyle v. Fleming, D.C.Canal 
Zone, 219 F.Supp. 277, 283. 
572 
In French practice, this term is subscribed by judicial 
authority upon a transcript of a judgment from a fo reign 
country, or from another part of France, and authorizes 
the execution of the judgment within the jurisdiction 
where it is so indorsed. 
Exercise. To make use of. Thus, to exercise a right or 
power is to do something which it enables the holder to 
do; e.g. exercising option to purchase stock. 
To put in action or practice, to carry on something, to 
transact or execute. See Performance. 
Exercise clause. See Free exercise clause. 
Exercised dominion. Open acts and conduct relative to 
land as evidence claim of the right of absolute posses
sion, use, and ownership. Whelan v. Henderson, Tex. 
Civ.App., 137 S.W.2d 150, 153. See Dominion. 
Exercise of judgment. Exercise of sound discretion, 
that is, discretion exercised, not arbitrarily or willfully, 
but with regard to what is right and equitable. United 
States v. Beckman, C.C.A.Pa., 104 F.2d 260, 262. 
Exercitalis I �gz�rs�teyl�s/. A soldier; a vassal. 
Exercitoria actio l�gz�rs�t6riy� reksh(iy)ow/. In the civ
il law, an action which lay against the employer of a 
vessel (exercitor navis) for the contracts made by the 
master. 
Exercitorial power l�gz�rs�t6riy�1 paw�r/. The trust 
given to a ship-master. 
Exercitor navis I �gz;}rs�d�r neyv�s/. Lat. The tempo
rary owner or charterer of a ship. 
Exercitual legz�rsityuw�l/. In old English law, a heriot 
paid only in arms, horses, or military accouterments. 
Exercitus I�gz;}rs�t�s/. In old European law, an army; 
an armed fo rce. The term was absolutely indefinite as 
to number. It was applied, on various occasions, to a 
gathering of forty-two armed men, of thirty-five, or even 
of fo ur. 
Ex facie leks feys(h)iyiy I. From the face; apparently; 
evidently. A term applied to what appears on the face 
of a writing. 
Ex facto leks frektow I. From or in consequence of a fact 
or action; actually. Usually applied to an unlawful or 
tortious act as the fo undation of a title, etc. Sometimes 
used as equivalent to "de facto. " 
Ex facto jus oritur leks frektow j;}S 6r�t�r/. The law 
arises out of the fact. A rule of law continues in 
abstraction and theory, until an act is done on which it 
can attach and assume as it were a body and shape. 
Exfestucare I eksfest�keriy I. In old English law, to abdi
cate or resign; to resign or surrender an estate, office, or 
dignity, by the symbolical delivery of a staff or rod to 
the alienee. 
Ex fictione juris leks fikshiy6wniy jur�s/. By a fiction 
of law. 
Exfrediare I eksfriydiyeriy I. To break the peace; to 
commit open violence.

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573 
Ex frequenti delicto augetur prena I eks fr�kw{mtay 
d�liktow ojiyt�r piyn�/. Punishment increases with in
creasing crime. 
Ex gratia leks greysh(iy)�/. Out of grace; as a matter of 
grace, favor, or indulgence; gratuitous. A term applied 
to anything accorded as a favor; as distinguished from 
that which may be demanded ex debito, as a matter of 
right. 
Ex gratia payment. Payment made by one who recog
nizes no legal obligation to pay but who makes payment 
to avoid greater expense as in the case of a settlement 
by an insurance company to avoid costs of suit. A 
payment without legal consideration. 
Ex gravi querela leks greyvay kw�riyl�/. (From or on 
the grievous complaint.) In old English practice, the 
name of a writ (so called from its initial words) which 
lay for a person to whom any lands or tenements in fee 
were devised by will (within any city, town, or borough 
wherein lands were devisable by custom), and the heir of 
the devisor entered and detained them from him. Abol
ished by St. 3 & 4 Wm. IV, c. 27, § 36. 
Exhaustion of administrative remedies I �gz6sty�n �v 
�dmin�str�t�v rem�diyz/. This doctrine requires that 
where an administrative remedy is provided by statute, 
relief must first be sought by exhausting such remedies 
before the courts will act. McKart v. U. S., 395 U.S. 
185, 89 S.Ct. 1657, 23 L.Ed.2d 194. The doctrine re
quires the party to use all available agency administra
tive procedures before resorting to courts for relief and 
requires that a party not only initially raise the issue in 
the administrative fo rum, but requires party to proceed 
through the entire proceeding to a final decision on the 
merits of the entire controversy. McHugh v. County of 
Santa Cruz, 33 C.A.3d 533, 109 Cal.Rptr. 149, 153. See 
also Primary jurisdiction. 
Exhaustion of state remedies. Federal courts require 
that state remedies be exhausted in certain classes of 
cases in order to give state courts as a matter of comity 
the opportunity to make the initial determination as to 
all claims, federal or state, raised in those cases. U.S. v. 
State of Texas, D.C.Tex., 430 F.Supp. 920, 930. Under 
this doctrine, a petition for habeas corpus by a state 
prisoner will be entertained by a federal court only after 
all state remedies have been exhausted. Darr v. Bur
ford, 399 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; 28 U.S. 
C.A. § 2254. However, exhaustion of state remedies is 
not required in Civil Rights § 1983 (42 U.S.C.A.) actions. 
Pasty v. Brd. of Regents of State of Fla., 457 U.S. 496, 
102 S.Ct. 2557, 73 L.Ed.2d 172. See also Abstention 
doctri ne; Comity. 
Exhibere /egz�biriy/. To present a thing corporeally, so 
that it may be handled. To appear personally to con
duct the defense of an action at law. 
Exhibit, v. To show or display; to offer or present for 
inspection. To produce anything in public, so that it 
may be taken into possession. To present; to offer 
publicly or off icially; to file of record. To administer; 
EXIGENCY OF A WRIT 
to cause to be taken, as medicines. To submit to a court 
or officer in course of proceedings. 
Exhibit, n. A paper or document produced and exhibit
ed to a court during a trial or hearing, or to a person 
taking depositions, or to auditors, arbitrators, etc., as a 
voucher, or in proof of facts, or as otherwise connected 
with the subject-matter, and which, on being accepted, is 
marked for identification and annexed to the deposition, 
report, or other principal document, or filed of record, or 
otherwise made a part of the case. 
Paper, document, chart, map, or the like, referred to 
and made a part of an affidavit, pleading or brief. 
An item of physical/tangible evidence which is to be 
or has been off ered to the court for inspection. 
Exhibits may be included as a part of the appendix to 
appellate briefs. See Fed.R.App.P. 30(e). 
Exhibitio billre legz�bish(iy)ow biliy/. Lat. Exhibition 
of a bill. In old English practice, actions were instituted 
by presenting or exhibiting a bill to the court, in cases 
where the proceedings were by bill; hence this phrase is 
equivalent to "commencement of the suit." 
Exhibition. See Exhibit. 
Exhibitionism. Indecent exposure of sexual organs. 
See Indecent. 
Exhibition value. "Minimum sale" or "exhibition val
ue" is interchangeably used with term "price expectan
cy" in moving picture industry, denoting minimum re
ceipts which distributors expect to realize from exhibi
tion of pictures. Export & Import Film Co. v. B. P. 
Schulberg Productions, 125 Misc. 756, 211 N.Y.S. 838, 
839. 
Exhumation / eks(h)yuwmeysh�n/ egz(y)uw· /. Disinter
ment; the removal from the earth of anything previous
ly buried therein, particularly a human corpse. 
Ex hypothesi I eks hayp60�say I. By the hypothesis; 
upon the supposition; upon the theory or facts assumed. 
Exidos / eyhiyoows /. See Ejidos. 
Exigence / egz�j�ns/ or exigency / egz�j�nsiy hgzi· /. De
mand, want, need, imperativeness. Something arising 
suddenly out of the current of events; any event or 
occasional combination of circumstances, calling for im
mediate action or remedy; a pressing necessity; a sud
den and unexpected happening or an unforeseen occur
rence or condition. Los Angeles County v. Payne, 8 
Cal.2d 563, 66 P.2d 658, 663. State of being urgent or 
exigent; pressing need or demand; also, case requiring 
immediate attention, assistance, or remedy; critical pe
riod or condition, pressing necessity. State v. Rubion, 
Tex.Civ.App., 292 S.W.2d 650, 657. See Exigent circum
stances, infra. 
Exigency of a bond. That which the bond demands or 
exacts, i.e., the act, performance, or event upon which it 
is conditioned. 
Exigency of a writ. The command or imperativeness of 
a writ; the directing part of a writ; the act or perform-
ance which it commands. 
.

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EXIGENDARY 
Exigendary /eks;}jend;}riy/. In English law, an off icer 
who makes out exigents. See Exigenter. 
Exigent, /eks;}j;}nt/ exigi facias /eks;}jay feys(h)iy;}s/. 
L. Lat. In English practice, a judicial writ made use of 
in the process of outlawry, commanding the sheriff to 
demand the defendant (or cause him to be demanded, 
exigi faciat), from county court to county court, until he 
be outlawed; or, if he appear, then to take and have him 
before the court on a day certain in term, to answer to 
the plaintiffs action. 3 Bl.Comm. 283, 284. Outlawry 
has long been obsolete. See Allocatur exigent. 
Exigent circumstances. Situations that demand un
usual or immediate action. "Exigent circumstances" in 
relation to justification for warrantless arrest or search 
refers generally to those situations in which law enforce
ment agents will be unable or unlikely to effectuate an 
arrest, search or seizure for which probable cause exists 
unless they act swiftly and without seeking prior judi
cial authorization. U.S. v. Campbell, C.A.N.Y., 581 F.2d 
22, 25. Exception to rule requiring search warrant is 
presence of exigent or emergency-like circumstances as 
for example presence of weapons in a motor vehicle 
stopped on highway and such exigent circumstances 
permit warrantless search and seizure. Chambers v. 
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. 
Where there are exigent circumstances in which police 
action literally must be "now or never" to preserve the 
evidence of the crime, it is reasonable to permit action 
without prior evaluation. Roaden v. Kentucky, 413 U.S. 
496, 505, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757; New York 
v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768. 
See also Probable cause. 
Exigenter / eks;}jent;}r /. An officer of the English court 
of common pleas, whose duty it was to make out the 
exigents and proclamations in the process of outlawry. 
Abolished by St. 7 Wm. IV, and 1 Vict., c. 30. 
Exigent list. A phrase used to indicate a list of cases set 
down for hearing upon various incidental and ancillary 
motions and rules. 
Exigent search. See Exigent circumstances. 
Exigible / eks;}j;}b;}lI. Demandable; requirable. 
Exigible debt / eks;}j;}b;}l detl. A liquidated and de-
mandable or matured claim. 
Exigi facias / eks;}jay feyshiy;}s/. That you cause to be 
demanded. The emphatic words of the Latin form of 
the writ of exigent. They are sometimes used as the 
name of that writ. 
Exile / egzayll eksayl/. Banishment; the person ban
ished. As noun, expulsion from country; expatriation. 
As verb, to expel from country; to banish. See also 
Deportati on. 
Exilium / ;}gziliy;}m/ . Lat. In old English law: (1) Exile; 
banishment from one's country. (2) Driving away; de
spoiling. The name of a species of waste, which consist
ed in driving away tenants or vassals from the estate; as 
by demolishing buildings, and so compelling the tenants 
574 
to leave, or by enfranchising the bond-servants, and 
unlawfully turning them out of their tenements. 
Exilium est patrice privatio, natalis soli mutatio, le
gum nativarum amissio / ;}gziliy;}m est pretriyiy 
pr;}veysh(iy)ow, n;}teybs s6wlay myuwteysh(iy)ow, 
liyg;}m neyt;}ver;}m ;}mish(iy)ow/. Exile is a privation of 
country, a change of natal soil, a loss of native laws. 
Ex industria leks ind:}striy;}I . With contrivance or de
liberation; designedly; on purpose. 
Ex integro / eks int;}grow I. Anew; afresh. 
Exist. To live; to have life or animation; to be in 
present force, activity, or effect at a given time, as in 
speaking of "existing" contracts, creditors, debts, laws, 
rights, or liens. To be or continue to be. State v. 
Sawtooth Men's Club, 59 Idaho 616, 85 P.2d 695, 698. 
Existimatio /;}gzist;}meysh(iy)ow/. In the civil law, the 
civil reputation which belonged to the Roman citizen, as 
such. Called a state or condition of unimpeached digni
ty or character (dignitatis inlresre status); the highest 
standing of a Roman citizen. Also the decision or award 
of an arbiter. 
Existing claim. Claim which has arisen and is pending. 
Existing debt. To have an "existing debt" it is sufficient 
if there is an absolute debt owing though the period for 
its payment may not yet have arrived. A tax may be a 
"debt" within meaning of agreement to assume "exist
ing debts". Shepard v. Commissioner of Internal Reve
nue, C.C.A.Ill., 101 F.2d 595, 598. Within provision of 
Uniform Fraudulent Conveyance Act which defines "in
solvency ", an "existing debt" is an existing legal liabili
ty, whether matured or unmatured, liquidated or unliq
uidated, absolute, fixed or contingent. Baker v. Geist, 
457 Pa. 73, 321 A.2d 634, 636. 
Existing person. A child conceived, but not born, is to 
be deemed an "existing person" so far as may be neces
sary for its interests in the event of its subsequent birth. 
Exit I egz;}tI. Lat. It goes fo rth. This word is used in 
docket entries as a brief mention of the issue of process. 
Thus, "exit fi. fa. " denotes that a writ of fieri facias has 
been issued in the particular case. The "exit of a writ" 
is the fact of its issuance. 
Way out; opposite of entrance. See Egress. 
Exitus I eks;}t;}sl. Children; off spring. The rents, issues, 
and profits of lands and tenements. An export duty. 
The conclusion of the pleadings. 
Exit wound. A term used in medical jurisprudence to 
denote the wound made by a weapon on the side where 
it emerges, after it has passed completely through the 
body, or through any part of it. 
Ex justa causa leks j;)st;} k6z;}/. From a just or lawful 
cause; by a just or legal title. 
Exlegalitas leksl;}geybtres/. In old English law, outlaw
ry. 
Exlegalitus I eksl;}geybt;}sl. He who is prosecuted as an 
outlaw.

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575 
Exlegare leksiJgeriy/. In old English law, to outlaw; to 
deprive one of the benefit and protection of the law 
(exuere aliquem beneficio legis). 
Ex lege leks liyjiy I. By the law; by force of law; as a 
matter of law. 
Ex legibus I eks liyj�b�s/. According to the laws. A 
phrase of the civil law, which means according to the 
intent or spirit of the law, as well as according to the 
words or letter. 
Exlex lekslex/. In old English law, an outlaw; qui est 
extra legem, one who is out of the law's protection. 
To relieve from responsibility, duty, or obligation. To 
clear from guilt; i.e. dropping criminal charges against 
accused. 
Ex licentia regis leks l�sensh(iy)� riyj�s/. By the king's 
license. 1 Bl.Comm. 168, note. 
Ex locato I eks l�keytow I. From or out of lease or 
letting. A term of the civil law, applied to actions or 
rights of action arising out of the contract of locatum. 
Adopted at an early period in the law of England. 
Ex maleficio leks mrebfish(i)yow I. Defined variously as 
from or growing out of wrongdoing; tortious; tortiously; 
growing out of, or fo unded on, misdoing or tort; on 
account of misconduct; by virtue of or out of an illegal 
act. Synonymous with "malfeasance". Lucas v. Cen
tral Missouri Trust Co., 350 Mo. 593, 166 S.W.2d 1053, 
1056. This term is frequently used in the civil law as 
the synonym of "ex delicto" (q.v.), and is thus contrasted 
with "ex contractu". In this sense it is of more rare 
occurrence in the common law. 
Ex maleficio non oritur contractus I eks mrel�
fish(i)yow non 6r�t�r k�ntrrekt�s/. A contract cannot 
arise out of an act radically vicious and illegal. 
Ex malis moribus bonre leges natre sunt I eks mrel�s 
m6r�b�s b6wniy liyjiyz neytiy s;)ntl. Good laws arise 
from evil morals, i.e., are necessitated by the evil behav
ior of men. 
Ex malitia leks m�lish(iy)�/. From malice; maliciously. 
In the law of libel and slander, this term imports a 
publication that is false and without legal excuse. 
Ex mero motu leks mirow m6wtuw I. Of his own mere 
motion; of his own accord; voluntarily and without 
prompting or request. In England, royal letters patent 
which are granted at the crown's own instance, and 
without request made, are said to be granted ex mero 
motu. When a court interferes, of its own motion, to 
ob ject to an irregularity, or to do something which the 
parties are not strictly entitled to, but which will pre
vent injustice, it is said to act ex mero motu, or ex 
proprio motu, or sua sponte, all these terms being here 
equivalent. 
Ex mora leks m6r�/. A term of the civil law, meaning 
from or in consequence of delay. Interest is allowed ex 
mora; that is, where there has been delay in repaying a 
sum borrowed. 
Ex more leks m6riy I. According to custom. 
EXONERATE 
Ex multitudine signorum, colligitur identitas vera 
leks m;}lt�t(y)uwd�niy sign6r�m, k�lij�t�r �dent�tres 
vir�/. From a great number of signs or marks, true 
identity is gathered or made up. A thing described by a 
great number of marks is easily identified, though, as to 
some, the description may not be strictly correct. 
Ex mutuo leks myuwtyuwow I. From or out of loan. In 
the old law of England, a debt was said to arise ex mutuo 
when one lent another anything which consisted in 
number, weight, or measure. 
Ex necessitate leks n�ses�teytiy/. Of necessity. 
Ex necessitate legis I eks n�ses�teytiy liyj�sl. From or 
by necessity of law. 4 Bl.Comm. 394. 
Ex necessitate rei I eks n�ses�teytiy riyay I. From the 
necessity or urgency of the thing or case. 
Ex nihilo nihil fit I eks nay(h)�low nay(h)�l fit/. From 
nothing nothing comes. 
Ex nudo pacto non oritur [nascitur] actio leks 
n(y)uwdow prektow non 6r�t�r rekshiyowl 
°nres(h)�t�r/. Out of a nude or naked pact [that is, a 
bare parol agreement without consideration] no action 
arises. Out of a promise neither attended with particu
lar solemnity (such as belongs to a specialty) nor with 
any consideration no legal liability can arise. A parol 
agreement, without a valid consideration, cannot be 
made the fo undation of an action. A leading maxim 
both of the civil and common law. 
Ex officio leks �fish(iy)ow/. From off ice; by virtue of 
the of fice; without any other warrant or appointment 
than that resulting from the holding of a particular 
office. Powers may be exercised by an officer which are 
not specifically conferred upon him, but are necessarily 
implied in his of fice; these are ex officio. Thus, a judge 
has ex officio the powers of a conservator of the peace. 
Ex officio information I eks �fish(iy)ow inf�rmeysh�n/. 
In English law, a criminal information filed by the 
attorney general ex officio on behalf of the crown, in the 
court of king's bench, for off enses more immediately 
affecting the government, and to be distinguished from 
informations in which the crown is the nominal prosecu
tor. 
Ex officio justices. Judges who serve in a particular 
capacity by reason of their office as a judge who serves 
on a commission or board because the law requires a 
particular judge to serve thereon and not because he is 
selected for such post. May also refer to one who 
exercises judicial functions by reason of his of fice. 
Ex officio services I eks �fish(iy )ow S;)rv�s�s/. Services 
which the law annexes to a particular office and re
quires the incumbent to perform. 
Exoine. In French law, an act or instrument in writing 
which contains the reasons why a party in a civil suit, or 
a person accused, who has been summoned, agreeably to 
the requisitions of a decree, does not appear. The same 
as "Essoin" (q.v.). 
Exonerate I �gz6n�reyt/. To exculpate.

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EXONERATION 
Exoneration I ;}gzon;}reysh�m/. The removal of a bur
den, charge, responsibility, or duty. Right to be reim
bursed by reason of having paid that which another 
should be compelled to pay while "indemnity" generally 
is based upon contract, express or implied, and means 
compensation for loss already sustained. Uptagrafft v. 
U. S., C.A.Va., 315 F.2d 200, 203. 
Equitable right of a surety, confirmed by statute in 
many states, to proceed by action in court to compel the 
principal debtor, against whom the surety will have a 
right of reimbursement, to satisfy the obligation where 
it would be inequitable for the surety to be compelled to 
perform, and thereby suffer the inconvenience and tem
porary loss which a payment by her will entail, if the 
principal debtor can satisfy the obligati on. See Restate
ment of Security § 11 2 (1941). 
Exoneratione sectre I ;}gzon;}reyshiyowniy sektiy I. A 
writ that fo rmerly lay for the crown's ward, to be free 
from all suit to the county court, hundred court, leet, 
etc., during wardship. 
Exoneratione sectre ad curiam baron I ;}gzon;}rey
shiyowniy sektiy red kyuriy;}m brer;}n/. A writ of the 
same nature as that last above described, issued by the 
guardian of the crown's ward, and addressed to the 
sheriffs or stewards of the court, forbidding them to 
distrain him, etc., for not doing suit of court, etc. 
Exoneretur I ;}gzon;}riyt;}r I. Lat. Let him be relieved or 
discharged. An entry made on a bailpiece, whereby the 
surety is relieved or discharged from further obligation, 
when the condition is fulfilled by the surrender of the 
principal or otherwise. 
Exorbitant I ;}gzorb;}t;}nt/. Deviating from the normal or 
customary course, or going beyond the rule of estab
lished limits of right, propriety, or expense. 
Exordium I ;}gzordiy;}m/. The beginning or introductory 
part of a speech or document. 
Ex pacto illicito non oritur actio leks prektow ;}lis;}tow 
non or;}t;}r reksh(iy)ow I. From an illegal contract an 
action does not arise. 
Ex parte leks partiy I. On one side only; by or for one 
party; done fo r, in behalf of, or on the application of, 
one party only. 
A judicial proceeding, order, injunction, etc., is said to 
be ex parte when it is taken or granted at the instance 
and for the benefit of one party only, and without notice 
to, or contestation by, any person adversely interested. 
"Ex parte, "i n the heading of a reported case, signifies 
that the name following is that of the party upon whose 
application the case is heard. 
Ex parte divorce. Divorce proceeding in which only one 
spouse participates or one in which the other spouse 
does not appear. The validity of such divorce depends 
upon the nature of the notice given to the absent spouse. 
Ex parte hearing. Hearings in which the court or 
tribunal hears only one side of the controvers y. 
576 
Ex parte injunction. An injunction which issues from a 
court which has heard only one side, the moving side, of 
the controversy. 
Ex parte investigation. An investigation conducted 
about a person who is not personally contacted or ques
tioned. 
Ex parte materna leks partiy m;}t�rn;}/. On the moth
er's side; of the maternal line. 
Ex parte paterna leks partiy p;}t�rn;}/. On the father's 
side; of the paternal line. 
Ex parte proceeding. Any judicial or quasi judicial 
hearing in which only one party is heard as in the case 
of a temporary restraining order. 
Ex parte revocation. The withdrawal or revocation of a 
license or other authority from a person without that 
person's participation or without notice and opportunity 
to be heard and defend. 
Expatriation I ekspeytriyeysh;}n/. The voluntary act of 
abandoning or renouncing one's country, and becoming 
the citizen or subject of another. 
Ex paucis dictis intendere plurima possis leks POS;}s 
dikt;}s ;}ntend;}riy pl(y)ur;}m;} pos;}sl. You can imply 
many things from few expressions. 
Ex paucis plurima concipit ingenium leks POS;}s 
pl(y)ur;}m;} k;}nsip;}t ;}njiyn(i)y;}m/. From a few words or 
hints the understanding conceives many things. 
Expect. To await; to look fo rward to something intend
ed, promised, or likely to happen. 
Expectancy. That which is expected or hoped for. The 
condition of being deferred to a future time, or of de
pendence upon an expected event. Contingency as to 
possession or en joyment. With respect to the time of 
their enjoyment, estates may either be in possession or 
in expectancy; and of expectancies there are two sorts, 
-one created by the act of the parties, called a "remain
der;" the other by act of law, called a "reversion ." 
Expectancy as applied to property, is contingency as to 
possession, that which is expected or hoped fo r. At most 
it is a mere hope or expectation, contingent upon the 
will and pleasure of the landowner, and hardly reaches 
the height of a property right, much less a vested right, 
because where there is no obligation, there is no right. 
It is a possibility for which a party may under certain 
circumstances properly hope for or expect. 
Expectancy of life. With respect to life annuities, the 
share or number of years of life which a person of a 
given age may, upon an equality of chance, expect to 
enjoy. See Actuarial table; Mortality tables. 
Expectancy tables. See Actuarial table; Mortality tables. 
Expectant. Contingent as to enjoyment. Having rela
tion to, or dependent upon, a contingency. See Contin
gent. 
Expectant estates. See Estate in expectancy.

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577 
Expectant heir I�kspekt;mt er/. A person who has the 
expectation of inheriting property or an estate, but 
small present means. 
Expectant right. A contingent right, not vested; one 
which depends on the continued existence of the present 
condition of things until the happening of some future 
event. Pearsall v. Great Northern R. Co., 161 U.S. 646, 
16 S.Ct. 705, 40 L.Ed. 838. A right is contingent, not 
vested, when it comes into existence only on an event or 
condition which may not happen. 
Expectation of life. See Actuarial table; Expectancy of 
life; Mortality tables. 
Expedient. Apt and suitable to end in view. Werner v. 
Biederman, 64 Ohio App. 423, 28 N.E.2d 957, 959. 
Whatever is suitable and appropriate in reason for the 
accomplishment of a specified ob ject. 
Expediente I ekspeyoiyentey I. An historical record of 
proceedings in connection with grant of land by the 
sovereign. State v. Balli, Tex.Civ.App., 173 S.W.2d 522, 
526. In Mexican law, a term including all the papers or 
documents constituting a grant or title to land from 
government. 
Expediment I �ksped�m�nt/. The whole of a person's 
goods and chattels, bag and baggage. 
Expedite. To hasten; to make haste; to speed. 
Expediter leksp�dayt�r/. An employee whose duty is to 
see that shortage in material at one point in a plant is 
remedied by delivery of the needed material from anoth
er part of the plant where it is stacked or stored. 
Expeditio leksp�dish(iy)ow/. An expedition; an irregu
lar kind of army. 
Expeditio brevis leksp�dish(iy)ow briyv�s/. In old prac
tice, the service of a writ. 
Expedition. A sending forth or setting forth for the 
execution of some ob ject of consequence. Speed or 
promptness in perf ormance. An important journey or 
excursion for a specific purpose; as, a military or explor
ing expedition; also, the body of persons making such an 
excursion. Equitable Life Assur. Soc. of United States v. 
Dyess, 194 Ark. 1023, 109 S.W.2d 1263, 1265. A jour
ney, march, or voyage generally of several or many 
persons for definite purpose, such as a military or ex
ploring expedition or a trading expedition to the African 
coast. The word carries an implication of a military 
exploit or of an exploration into remote regions or over 
new routes. Day v. Equitable Life Assur. Soc. of U. S., 
C.C.A.Colo., 83 F.2d 147, 149. 
Expeditious / eksp�dish�s/ . Possessed of, or character
ized by, expedition or efficiency and rapidity in action; 
performed with, or acting with, expedition; quick; 
speedy. 
Expedit reipublicre ne sua re quis male utatur 
leksp�d�t riyayp�bl�siy niy s(y)uw� riy kwis mreliy 
yuwt�t�r/. It is for the interest of the state that a man 
should not enjoy his own property improperly (to the 
injury of others). 
EXPENSE 
Expedit reipublicre ut sit finis litium I eksp�d�t 
riyayp�bbsiy �t sit fayn�s lish(iy)�m/. It is for the 
advantage of the state that there be an end of suits; it is 
for the public good that actions be brought to a close. 
This maxim belongs to the law of all countries. 
Expel. In regard to trespass and other torts, this term 
means to eject, to put out, to drive out, and generally 
with an implication of the use of fo rce. See also Eject
ment; Eviction. 
Expend. To pay out, lay out, consume, use up; normally 
implying receiving something in return. 
Expendable. That which is consumed in its use over a 
short period of time such as expenses for day to day 
operations which are charged as expenses to current 
income as contrasted with payments for long term or 
capital improvements. Not essential or critical to pre
serve. 
Expendere I �kspend�riy I. The word "expense" had its 
origin in the Latin word "expendere"; "ex" meaning 
"out," and "pendere" meaning "to weigh." 
Expenditors I �kspend�t�rzl. Paymasters. Those who 
expend or disburse certain taxes. 
Expenditure. Spending or payment of money; the act 
of expending, disbursing, or laying out of money; pay
ment. Compare Appropriation. See also Expense. As 
regards Capital expenditure see Capital. 
Expensre litis I �kspensiy layt�s/. Costs or expenses of 
the suit, which are generally allowed to the successful 
party. 
Expense. That which is expended, laid out or consumed. 
An outlay; charge; cost; price. The expenditure of 
money, time, labor, resources, and thought. That which 
is expended in order to secure benefit or bring about a 
result. Shinrone Farms, Inc. v. Gosch, Iowa, 319 
N.W.2d 298, 304. See also Costs; Fee. 
Accrued expense. One which has been incurred in a 
given period but not yet paid. 
Business expense. One which is directly related to one's 
business as contrasted with expenses incurred for per
sonal and family reasons. See Tax deduction, below. 
Current expense. Normal expense incurred, for exam
ple, in daily operations of a business. See Operating 
expenses, below. 
Operating expenses. The cost of operating a business, 
such as rent, wages, utilities, and similar day to day 
expenses, as well as taxes, insurance, and a reserve for 
depreciation. 
Ordinary expense. See Ordinary. 
Out of pocket expenses. A direct expense which requires 
the immediate outlay of cash in contrast to an accrued 
expense. 
Prepaid expense. Payment of rent, interest, insurance, 
or similar expenses, prior to actual due date for pay
ment. I.R.C. §§ 162, 213. Costs that are deductible 
from current income as opposed to capital expenditures.

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EXPENSE 
Cash basis as well as accrual basis taxpayers are gener
ally required to capitalize prepayments for rent, insur
ance, etc. that cover more than one year. Deductions 
are taken during the period the benefits are received. 
Tax deduction. Certain expenses such as those directly 
related to production of income are deductions from 
gross income for tax purposes. 
Expense in carrying on business. Usual or customary 
expenditure in course of conducting business during the 
year. Whitney v. Commissioner of Internal Revenue, 
C.C.A.N.Y., 73 F.2d 589, 591. See Ordinary (Ordinary 
expenses). 
Expense ratio. Proportion or ratio of expenses to in
come. 
Expenses of administration. As used in Internal Reve
nue Code, means obligations incurred after decedent's 
death by his representatives in administering his estate. 
Mayer v. Reinecke, D.C.Ill., 28 F.Supp. 334, 339. See 
Admin istration expense. 
Expenses of family. Medical and funeral expenses are 
"expenses of the family" within meaning of statute 
making expenses of family chargeable upon property of 
both husband and wife. Hansen v. Hayes, 175 Or. 358, 
154 P.2d 202, 205. Under such a statute the term 
includes not only m�rchandise used by family as a 
whole, but also expenses, such as medical aid, hospital 
services and burial attendance, incurred or supplied for 
one of the spouses. In re De Nisson's Guardianship, 197 
Wash. 265, 84 P.2d 1024, 1026. 
Expenses of receivership. Includes allowances to re
ceivers' counsel, master's fees, appraisers' fees, auditors' 
fees, and rent and other expenses incurred by receivers 
in conducting business. 
Expenses of the state. Within constitutional provision 
for raising revenue has rElference to general operating 
expenses of state government for fiscal year. 
Expensis miIitum non levandis / ;}kspEmS;}S 
m;}lish(iy);}m non l;}vrend;}s/. An ancient writ to prohibit 
the sheriff from levying any allowance for knights of the 
shire upon those who held lands in ancient demesne. 
Experience. A state, extent, or duration of being en
gaged in a particular study or work; the real life as 
contrasted with the ideal or imaginary. A word imply
ing skill, facility, or practical wisdom gained by personal 
knowledge, feeling, and action, and also the course or 
process by which one attains knowledge or wisdom. 
Experience rating. In insurance, a method of determin
ing rates by using the loss experience of the insured over 
a period of time. 
Experientia per varios actus legem facit. Magistra 
rerum experientia /;}kspiriYEmsh(iy);} p.Jr veriyows 
rekt;}s liyj;}m feys;}t. m;}jistr;} rir;}m ;}kspiriyensh(iy);}/. 
Experience by various acts makes law. Experience is 
the mistress of things. 
578 
Experiment. A trial or special test or observation made 
to confirm or disprove something doubtful. The process 
of testing. 
Expert. One who is knowledgeable in specialized field, 
that knowledge being obtained from either education or 
personal experience. Midtown Properties, Inc. v. 
George F. Richardson, Inc., 139 Ga.App. 182, 228 S.E.2d 
303, 307: One who by reason of education or special 
experience has knowledge respecting a subject matter 
about which persons having no particular training are 
incapable of forming an accurate opinion or making a 
correct deduction. Balfour v. State, Ind., 427 N.E.2d 
1091, 1094. One who by habits of life and business has 
peculiar skill in forming opinion on subject in dispute. 
Brown v. State, 140 Ga.App. 160, 230 S.E.2d 128, 13l. 
See Expert testimony; Expert witness. 
Expert testimony. Opinion evidence of some person 
who possesses special skill or knowledge in some science, 
profession or business which is not common to the 
average man and which is possessed by the expert by 
reason of his special study or experience. Board of Ed. 
of Claymont Special School Dist. v. 13 Acres of Land in 
Brandywine Hundred, Del.Super., 11 Terry 387, 131 
A.2d 180, 184. Testimony given in relation to some 
scientific, technical, or professional matter by experts, 
i.e., persons qualified to speak authoritatively by reason 
of their special training, skill, or familiarity with the 
subject. Evidence of persons who are skilled in some 
art, science, profession, or business, which skill or 
knowledge is not common to their fellow men, and 
which has come to such experts by reason of special 
study and experience in such art, science, profession, or 
business. 
If scientific, technology, or other specialized knowl
edge will assist the trier of fact to understand the 
evidence or to determine a fact in issue, a witness 
qualified as an expert by knowledge, skill, experience, 
training, or education, may testify thereto in the form of 
an opinion or otherwise. Fed.Evid.R. 702, 703. See also 
Expert witness; Opinion evidence or testimony. 
Expert witness. One who by reason of education or 
specialized experience possesses superior knowledge re
specting a subject about which persons having no partic
ular training are incapable of forming an accurate opin
ion or deducing correct conclusions. Kim Mfg., Inc. v. 
Superior Metal Treating, Inc., Mo.App., 537 S.W.2d 424, 
428. A witness who has been qualified as an expert and 
who thereby will be allowed (through his/her answers to 
questions posted) to assist the jury in understanding 
complicated and technical subjects not within the under
standing of the average lay person. One possessing, 
with reference to particular subject, knowledge not ac
quired by ordinary persons. One skilled in any particu
lar art, trade, or profession, being possessed of peculiar 
knowledge concerning the same, and one who has given 
subject in question particular study, practice, or observa
tion. One who by habits of life and business has pecu
liar skill in forming opinion on subject in dispute. For 
admissibility of testimony and court appointment of

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579 
expert witnesses, see Fed.Evid.Rules 702-706. See also 
Expert testimony; Hypothetical question. 
Expilare /eksp;}leriy/. In the civil law, to spoil; to rob 
or plunder. Applied to inheritances. 
Expilatio /eksp;}leysh(iy)ow/. In the civil law, the of
fense of unlawfully appropriating goods belonging to a 
succession. It is not technically theft (furtum) because 
such property no longer belongs to the decedent, nor to 
the heir, since the latter has not yet taken possession. 
In the common law, the grant of letters testamentary, or 
letters of administration, relates back to the time of the 
death of the testator or intestate; so that the property of 
the estate is vested in the executor or administrator 
from that period. 
Expilator /eksp;}leyt;}r/. In the civil law, a robber; a 
spoiler or plunderer. 
Expiration. Cessation; termination from mere lapse of 
time, as the expiration date of a lease, insurance policy, 
statute, and the like. Coming to close; termination or 
end. 
The term "expiration," as in an insurance policy, 
refers to termination of the policy by lapse of time 
covering the policy period, while "cancellation" refers to 
termination of the policy by act of either or both parties 
prior to ending of the policy period. 
Expire. See Expiration. 
Explees / ;}(k)spliyz/ . See Esplees. 
Expleta /;)kspliyt;}/, expletia /;}kspliysh(iy);}/, or exple
cia / ;}kspliys(h)(i)y;}/. The rents and profits of an estate. 
Explicatio /ekspl;}keysh(iy)ow /. In the civil law, the 
fourth pleading; equivalent to the surrejoinder of the 
common law. 
Explicit. Not obscure or ambiguous, having no disguised 
meaning or reservation. Clear in understanding. 
Exploitation / eksployteys h;}n/. Act or process of ex
ploiting, making use of, or working up. Utilization by 
application of industry, argument, or other means of 
turning to account, as the exploitation of a mine or a 
fo rest. State Finance Co. v. Hamacher, 171 Wash. 15, 
17 P.2d 610, 613. Taking unjust advantage of another 
for one's own advantage or benefit (e.g. paying low 
wages to illegal aliens). 
Exploration. The examination and investigation of land 
supposed to contain valuable minerals, by drilling, bor
ing, sinking shafts, driving tunnels, and other means, for 
the purpose of discovering the presence of ore and its 
extent. 
Explorator /ekspl;}reyt;}r/. A scout, huntsman, or chas
er. 
Export, v. To carry or to send abroad. Canton R. Co. v. 
Rogan, 340 U.S. 511, 71 S.Ct. 447, 449, 95 L.Ed. 488. To 
send, take, or carry an article of trade or commerce out 
of the country. To transport merchandise or goods from 
one country to another in the course of trade. To carry 
out or convey goods by sea. Transportation of goods 
from United States to fo reign country. West India Oil 
EXPOSE 
Co. v. Sancho, C.C.A.Puerto Rico, 108 F.2d 144, 147. 
The Constitution gives Congress the power to regulate 
exports through its grant of power to regulate trade 
with foreign nations. Art. I, Sec. 8, Cl. 3. See also 
Re-export. 
Export, n. Products manufactured in one country, and 
then shipped and sold in another. A thing or commodi
ty exported. More commonly used in the plural. 
Exportation. The act of sending or carrying goods and 
merchandise from one country to another. A severance 
of goods from mass of things belonging to United States 
with intention of uniting them to mass of things belong
ing to some foreign country. Matson Nav. Co. v. State 
Bd. of Equalization, 136 Cal.2d 577, 289 P.2d 73, 77. 
Export declaration. Document which contains details 
of export shipment and required by federal law. 
Export drafts. When a domestic seller and foreign 
buyer complete a trade transaction, the actual exchange 
of documents for payment is usually handled by banks. 
To carry out the financial end of the transaction, the 
parties often use an "export draft" or "bill of exchange." 
An export draft is an unconditional order, drawn by the 
seller upon the buyer, directing the buyer to pay the 
face amount of the draft, either when it is presented (a 
sight draft) or at a specified future date (a time draft or 
usance). The draft is usually made payable to the order 
of the seller-or to the order of the seller's bank. 
Export-Import Bank. Independent agency of federal 
government whose function is to aid in financing ex
ports and imports. 
Export quotas. Amounts of specific goods which may be 
exported. Such quotas are set by the federal govern
ment for purposes of national defense, economic stabili
ty, price support, etc. 
Exports clause. Provision in U.S.Const., Art. I, Sec. 10, 
CI. 2, limiting power of states to impose duties or im
posts on imports or exports. 
Export tax. Tax levied upon merchandise and goods 
shipped out of a country. Tax levied upon right to 
export or upon goods because of fact that they are being 
exported or intended to be exported. Virgo Corp. v. 
Paiewonsky, D.C.Virgin Islands, 251 F.Supp. 279, 283. 
See also Customs duties; Domestic International Sales 
Corporation (DISC ).' 
Expose, v. To show publicly; to display; to offer to the 
public view, as, to "expose" goods to sale, to "expose" a 
tariff or schedule of rates, to "expose" misconduct of 
public or quasi-public figures. 
To place in a position where the ob ject spoken of is 
open to danger, or where it is near or accessible to 
anything which may affect it detrimentally; as, to "ex
pose" a child, or to expose oneself or another to a 
contagious disease or to danger or hazard of any kind. 
For indecent exposure, see Indecent. 
Expose /;}kspowz/eksp owzey /. Fr. A statement; ac
count; recital; explanation. The term is used in dip
lomatic language as descriptive of a written explanation

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EXPOSE 
of the reasons for a certain act or course of conduct. 
Exposure of discreditable matter concerning a person, 
government, etc. 
Expositio lE�ksp;}zish(iy)ow /. Lat. Explanation; exposi
tion; interpretation. 
Exposition. Explanation; interpretation. 
Exposition de part. In French law, the abandonment of 
a child, unable to take care of itself, either in a public or 
private place. 
Expositio qure ex visceribus causre nascitur, est aptis
sima et fortissima in lege I eksp;}zish(iy)ow kwiy eks 
v;}sehr;}b;}s koziy nres;}t;}r est reptis;}m;} et fo rtis;}m;} in 
liyjiy I. That kind of interpretation which is born [or 
drawn] from the bowels [or vitals] of a cause is the 
aptest and most fo rcible in the law. 
Expository statute. A law that is enacted to explain 
the meaning of a previously enacted law. Such statutes 
are often expressed thus: "The true intent and meaning 
of an act passed * * be and is hereby declared to 
be"; "the provisions of the act shall not hereafter ex
tend"; or "are hereby declared and enacted not to 
apply", and the like. This is a common mode of legisla
tion. 
Ex post facto leks powst frektow I. After the fact; by an 
act or fact occurring after some previous act or fact, and 
relating thereto; by subsequent matter; the opposite of 
ab initio. Thus, a deed may be good ab initio, or, if 
invalid at its inception, may be confirmed by matter ex 
post facto. 
Ex post facto law leks powst frektow 161. A law passed 
after the occurrence of a fact or commission of an act, 
which retrospectively changes the legal consequences or 
relations of such fact or deed. A law is unconstitution
ally "ex post facto" if it deprives the defendant of a 
defense to criminal liability that he had prior to enact
ment of the law. State v. Rogers, Ohio Com.Pl., 346 
N.E.2d 352,361. Art. I, § 9 (Cl.3) and § 10 of U.S.C onst. 
prohibit both Congress and the states from passing any 
ex post facto law. Most state constitutions contain sim
ilar prohibitions against ex post facto laws. 
An "ex post facto law" is defined as a law which 
provides for the infliction of punishment upon a person 
for an act done which, when it was committed , was 
innocent; a law which aggravates a crime or makes it 
greater than when it was committed; a law that 
changes the punishment or inflicts a greater punish
ment than the law annexed to the crime when it was 
committed; a law that changes the rules of evidence and 
receives less or different testimony than was required at. 
the time of the commission of the offe nse in order to 
convict the off ender; a law which, assuming to regulate 
civil rights and remedies only, in effect imposes a penal
ty or the deprivation of a right which, when done, was 
lawful; a law which deprives persons accused of crime of 
some lawful protection to which they have become enti
tled, such as the protection of a former conviction or 
acquittal, or of the proclamation of amnesty; every law 
which, in relation to the off ense or its consequences, 
580 
alters the situation of a person to his disadvantage. 
Wilensky v. Fields, Fla., 267 So.2d 1, 5. 
Exposure. The act or state of exposing or being exposed. 
See Expose. 
For Indecent exposure, see Indecent. 
Exposure of child. Placing child in such a place or 
position as to leave it unprotected against danger to its 
health or life or subject it to the peril of severe suffering 
or serious bodily harm. 
Exposure of person. In criminal law, such an inten
tional exposure, in a public place, of the naked body or 
the private parts as is calculated to shock the feelings of 
chastity or to corrupt the morals of the community. See 
also Indecent (Indecent exposure). 
Ex prrecedentibus et consequentibus optima fit inter
pretatio leks pres;}dent;}b;}s et kons;}kwent;}b;}s opt;}m;} 
fit ;}nt�rpr;}teysh(iy)ow/. The best interpretation is 
made from the context. 
Express. Clear; definite; explicit; plain; direct; unmis
takable; not dubious or ambiguous . Declared in terms; 
set fo rth in words. Directly and distinctly stated. Made 
known distinctly and explicitly, and not left to infer
ence. Minneapolis Steel & Machinery Co. v. Federal 
Surety Co., C.C.A.Minn., 34 F.2d 270, 274. Manifested 
by direct and appropriate language, as distinguished 
from that which is inferred from conduct. The word is 
usually contrasted with "implied." 
As to express Condition; Consent; Consideration; Con
tract; Covenant; Dedication; Emancipation; Invitation; 
Malice; Notice; Obligation; Trust; Waiver; and Warranty, 
see those titles. 
Express abrogation. Abrogation by express provision 
or enactment; the repeal of a law or provision by a 
subsequent one, referring directly to it. Express abroga
tion is that literally pronounced by the law either in 
general terms, as when a final clause abrogates or 
repeals all laws contrary to the provisions of the new 
one, or in particular terms, as when it abrogates certain 
preceding laws which are named. 
Express active trust. See Trust. 
Expressa nocent, non expressa non nocent I ;}kspres;} 
nos;}nt, non ;}kspres;} non nos;}nt/. Things expressed are 
[may be] prejudicial; things not expressed are not. Ex
press words are sometimes prejudicial, which, if omitted, 
had done no harm. 
Expressa non prosunt qure non expressa proderunt 
I ;}kspres;} non prows;}nt kwiy non ;}kspres;} pr;}dir;}nt/. 
The expression of things of which, if unexpressed, one 
would have the benefit, is useless. Things expressed 
may be prejudicial which when not expressed will profit. 
Express assumpsit I ;}kspres ;}s;}m(p)s;}t!. An undertak
ing to do some act, or to pay a sum of money to another, 
manifested by express terms. An undertaking made 
orally, by writing not under seal, or by matter of record, 
to perform act or to pay sum of money to another. 
Holcomb v. Kentucky Union Co., 262 Ky. 192,90 S.W.2d

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581 
25,27; Anderson v. Biesman & Carrick Co., 287 Ill.App. 
507,4 N.E.2d 639, 640, 641. 
Express authority. Authority delegated to agent by 
words which expressly authorize him to do a delegable 
act. Authority which is directly granted to or conferred 
upon agent in express terms. That authority which 
principal intentionally confers upon his agent by man
ifestations to him. Epstein v. Corporacion Peruana de 
Vapores, D.C.N.Y., 325 F.Supp. 535, 537. 
That which confers power to do a particular identical 
thing set forth and declared exactly, plainly, and direct
ly with well-defined limits. An authority given in direct 
terms, definitely and explicitly, and not left to inference 
or implication, as distinguished from authority which is 
general, implied, or not directly stated or given. 
Express color. In old English law, an evasive form of 
special pleading in a case where the def endant ought to 
plead the general issue. Abolished by the common-law 
procedure act, 1852, 15 & 16 Vict., c. 76, § 64. 
Express common-law dedication. See Dedicati on. 
Express company. A firm or corporation engaged in 
the business of transporting parcels or other movable 
property, in the capacity of common carriers, and espe
cially undertaking the safe carriage and speedy delivery 
of small but valuable packages of goods and money. 
Express conditions. See Condition. 
Express contract. See Contract. 
Express dissatisfaction. Where will declares that any 
one expressing dissatisfaction with its provisions should 
forfeit his interest, "dissatisfaction" is legally "ex
pressed" when beneficiary contests or ob jects in legal 
proceeding to enforcement of any provision of will. 
Expressed. Means stated or declared in direct terms; 
set fo rth in words; not left to inference or implication. 
Anderson v. Board of Ed. of School Dist. No. 91, 390 Ill. 
412, 61 N.E.2d 562, 567. See Express. 
Expressio eorum qure tacite insunt nihil operatur 
/;}kspresh(iy)ow iyor;}m kwiy tres;}tiy ins�nt miy(h);}l 
op;}reyt;}r/. The expression or express mention of those 
things which are tacitly implied avails nothing. A 
man's own words are void, when the law speaks as 
much. Words used to express what the law will imply 
without them are mere words of abundance. 
Expression, freedom of. One of the basic freedoms 
guaranteed by the First Amendment of U.S.C onst. and 
by most state constitutions. Such is equivalent to free
dom of speech, press, or assembly. 
Expressio unius est exclusio alterius /;}kspresh(iy)ow 
y;}nay;}s est ;}kskluwz(h)(i)yow olt;}ray;}s/. A maxim of 
statutory interpretation meaning that the expression of 
one thing is the exclusion of another. Burgin v. Forbes, 
293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 
170 Okl. 487,40 P.2d 1097, 1100. Mention of one thing 
implies exclusion of another. When certain persons or 
things are specified in a law, contract, or will, an inten
tion to exclude all others from its operation may be 
inferred. Under this maxim, if statute specifies one 
EXPRESS WARRANTY 
exception to a general rule or assumes to specify the 
effects of a certain provisi �n, other exceptions or effects 
are excluded. 
Expressio unius personre est exclusio alterius 
/;}kspresh(iy)ow y;}nay;}s p;}rsowniy est ;}ks
kluwz(h)(i)yow olt;}ray;}s/. The mention of one person is 
the exclusion of another. 
Expressly. In an express manner; in direct or unmis
takable terms; explicitly; definitely; directly. St. Louis 
Union Trust Co. v. Hill, 336 Mo. 17,76 S.W.2d 685, 689. 
The opposite of impliedly. Bolles v. Toledo Trust Co., 
144 Ohio St. 195, 58 N.E.2d 381, 396. 
Express malice. Express malice for purposes of first 
degree murder includes malice, formed design or inten
tion to kill or to do great bodily harm, and sedate and 
deliberate mind of which that intention is the product. 
State v. Gardner, 7 Storey 588, 203 A.2d 77, 80. As used 
with respect to libel, means publication of defamatory 
material in bad faith, without belief in the truth of the 
matter published, or with reckless disregard of the truth 
or falsity of the matter. Barlow v. International Har
vester Co., 95 Idaho 881, 522 P.2d 11 02, 111 3. See also 
Malice. 
Express permission. Within statute respecting automo
bile owner's liability, includes prior knowledge of intend
ed use and affirmative and active consent thereto: 
Express private trust. See Trust. 
Express repeal. Abrogation or annulment of previously 
existing law by enactment of subsequent statute declar
ing that former law shall be revoked or abrogate d. 
Express republication. Occurs with respect to will 
when testator repeats ceremonies essential to valid exe
cution, with avowed intention of republishing will. 
Express request. That which occurs when one person 
commands or asks another to do or give something, or 
answers affirmatively when asked whether another 
shall do a certain thing. 
Express terms. Within provision that qualified accept
ance, in "express terms," varies effect of draft, "express 
terms" means clear, unambiguous, definite, certain, and 
unequivocal terms. 
Express trust. See Trust. 
Expressum facit cessare tacitum / ;}kspres;}m feys;}t 
s;}seriy tres;}t;}m/. That which is expressed makes that 
which is implied to cease [that is, supersedes it, or 
controls its effect]. Thus, an implied covenant in a deed 
is in all cases controlled by an express covenant. Where 
a law sets down plainly its whole meaning the court is 
prevented from making it mean what the court pleases. 
Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 
733,743. 
Expressum servitium regat vel declaret tacitum 
/ ;}kspres;}m s;}rvish(iy);}m riyg;}t vel dekl;}rer;}t tres;}t;}m/. 
Let service expressed rule or declare what is silent. 
Express warranty. See Warranty.

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EXPROMISSIO 
Expromissio !E�kspr�mis(h)(i)yow/. In the civil law, the 
species of novation by which a creditor accepts a new 
debtor, who becomes bound instead of the old, the latter 
being released. 
Expromissor !E�kspr�mis�r/. In the civil law, a person 
who assumes the debt of another, and becomes solely 
liable for it, by a stipulation with the creditor. He 
differs from a surety, inasmuch as this contract is one of 
novation, while a surety is jointly liable with his princi
pal. 
Expromittere /ekspr�mit�riy/. In the civil law, to un
dertake for another with the view of becoming liable in 
his place. 
Expropriation. A taking, as of privately owned proper
ty, by government under eminent domain. This term is 
also used in the context of a foreign government taking 
an American industry located in the foreign country. 
In Louisiana, the word has the same general meaning as 
eminent domain. 
A voluntary surrender of rights or claims; the act of 
divesting oneself of that which was previously claimed 
as one's own, or renouncing it. In this sense it is the 
opposite of "appropriati on." 
See also Condemnation; Eminent domain. 
Ex proprio motu / eks prowpriyow mowtuw /. Of his 
own accord. See Ex mero motu. 
Ex proprio vigore / ilks prowpriyow v�goriy / . By their 
or its own fo rce. 
Ex provisione hominis / ilks pr�viz(h)iyowniy hom�n�s/. 
By the provision of man. By the limitation of the party, 
as distinguished from the disposition of the law. 
Ex provisione mariti / ilks pr�viz(h)iyowniy mrer�tay /. 
From the provision of the husband. 
Expulsion. A putting or driving out. Ej ectment; ban
ishment; a cutting off from the privileges of an institu
tion or society permanently. The act of depriving a 
member of a corporation, legislative body, assembly, 
society, commercial organization, etc., of his member
ship in the same, by a legal vote of the body itself, for 
breach of duty, improper conduct, or other sufficient 
cause. Also, in the law of torts and of landlord and 
tenant, an eviction or fo rcible putting out. See Deporta
tion; Ejectment; Eviction; Expel; Forcible entry and de
tainer; Process (Summary process). 
Expunge /�kspanj/. To destroy; blot out; obliterate; 
erase; efface designedly; strike out wholly. The act of 
physically destroying information-i ncluding criminal 
records-in files, computers, or other depositories. 
Expungement of record. Process by which record of 
criminal conviction is destroyed or sealed after expira
tion of time. Some states also provide for expungement 
of criminal records if arrested person is not convicted 
(e.g. N.J .S.A. 2e:5�) or in the event of unlawful arrest. 
See also Erasure (Erasure of record ). 
582 
Expurgation / ilksp�rgeysh�n/ . The act of purging or 
cleansing, as where a book is published without its 
obscene passages. 
Expurgator /eksp�rgeyt�r/. One who corrects by ex
purging. 
Ex quasi contractu / ilks kweysay k�ntrrektyuw /. From 
quasi contract. 
Ex rei. See Ex relatione. 
Ex relatione / ilks r�lilyshiyowniy / . V pon relation or 
information. 
Legal proceedings which are instituted by the attor
ney general (or other proper person) in the name and 
behalf of the state, but on the information and at the 
instigation of an individual who has a private interest in 
the matter, are said to be taken "on the relation" (ex 
relatione) of such person, who is called the "relator." 
Such a cause is usually entitled thus: "State ex rei. Doe 
v. Roe." 
In the books of reports, when a case is said to be 
reported ex relatione, it is meant that the reporter 
derives his account of it, not from personal knowledge, 
but from the relation or narrative of some person who 
was present at the argument. 
Ex rights. Literally, without rights. A stock sells ex 
rights when stock purchasers no longer receive the 
rights along with the shares purchased. Such stock is 
sold without privileged subscription rights to a current 
new issue by a corporation. Refers to the date on which 
a purchaser of publicly traded shares is not entitled to 
receive rights that have been declared on the shares. 
Ex rigore juris / ilks r�goriy jur�s/. According to the 
rigor or strictness of law; in strictness of law. 
Exrogare /ilksr�geriy/. (From ex, from, and rogare, to 
pass a law.) In Roman law, to take something from an 
old law by a new law. 
Ex scriptis olim visis / ilks skript�s owbm vayz�s/. 
From writings fo rmerly seen. A term used as descrip
tive of that kind of proof of handwriting where the 
knowledge has been acquired by the witness having seen 
letters or other documents professing to be the hand
writing of the party, and having afterwards communi
cated personally with the party upon the contents of 
those letters or documents, or having otherwise acted 
upon them by written answers, producing further corre
spondence or acquiescence by the party in some matter 
to which they relate, or by the witness transacting with 
the party some business to which they relate, or by any 
other mode of communication between the party and the 
witness which, in the ordinary course of the transactions 
of life, induces a reasonable presumption that the letters 
or documents were the handwriting of the party. 
Ex ship. Words in a contract for the sale of goods 
denoting that risk of loss shall pass to the buyer upon 
the goods leaving the ship. Buyer is responsible for any 
subsequent landing charges. vee § 2-322. See also 
Ship. 
Ex statuto / eks st;tyliwtow /. According to the statute.

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583 
Ex stipulatu actio leks stipY:lleytuw reksh(iy)ow/. In 
the civil law, an action of stipulation. An action given 
to recover marriage portions. 
Ex tempore leks temp:lriy/. From or in consequence of 
time; by lapse of time. Ex diuturno tempore, from 
length of time. Without preparation or premeditation. 
Extend. Term lends itself to great variety of meanings, 
which must in each case be gathered from context. It 
may mean to expand, enlarge, prolong, lengthen, widen, 
carry or draw out further than the original limit; e.g. , to 
extend the time for filing an answer, to extend a lease, 
term of office, charter, railroad track, etc. Keetch v. 
Cordner, 90 Utah 423, 62 P.2d 273, 277. To stretch out 
or to draw out. Loeffler v. Federal Supply Co., 187 Okl. 
373, 102 P.2d 862, 864. See also Extension; Rene wal. 
Extended. A lengthening out of time previously fixed 
and not the arbitrary setting of a new date. Stretched, 
spread, or drawn out. 
Extended coverage clause. Provision in insurance pol
icy which carries protection for hazards beyond those 
covered (or excluded) in the basic policy. See also Omni
bus clause. 
Extended insurance. An option to use dividend to 
procure extended insurance is one to procure extension 
of term of insurance from date to which premiums have 
been paid, without further payment. Williams v. Union 
Central Life Ins. Co., Tex., 291 U.s. 170, 54 S.Ct. 348, 78 
L.Ed. 711. 
Extended warranty. See Warranty. 
Extendi facias I �kst€mday feys(h)(i)Y::ls/. Lat. You 
cause to be extended. In English practice, the name of a 
writ of execution (derived from its two emphatic words); 
more commonly called an "extent." 
Extension. An increase in length of time specified in 
contract (e.g. of expiration date of lease, or due date of 
note). See also Grace period. 
A part constituting an addition or enlargement, as an 
annex to a building or an extension to a house. Addi
tion of existing facilities. Enlargement of main body; 
addition of something smaller than that to which it is 
attached; to cause to reach or continue as from point to 
point; to lengthen or prolong. That property of a body 
by which it occupies a portion of space. Newark Stove 
Co. v. Gray & Dudley Co., D.C.Tenn., 39 F.Supp. 992, 
993. 
Commercial law. An allowance of additional time for 
the payment of debts. # An agreement between a debtor 
and his creditors, by which they allow him further time 
for the payment of his liabilities. A creditor's indul
gence by giving a debtor further time to pay an existing 
debt. See Bankr uptcy proceedings. 
Lease. The word "extension," when used in its proper 
and usual sense in connection with a lease, means a 
prolongation of the previous leasehold estate. The dis
tinction between "extension" and "renewal" of lease is 
chiefly that, in the case of renewal, a new lease is 
requisite, while, in the case of extension, the same lease 
EXTENT IN AID 
continues in force during additional period upon pe r
formance of stipulated act. An option for renewal im
plies giving of new lease on same terms as old lease, 
while an option for extension contemplates a continu
ance of old lease for a further period. 
Patents. Extension of life of · patent for an additional 
statutorily allowed period. 
Taxes. Request for additional time to file income tax 
return beyond due date. 
Time. Extensions of time for performing an act that is 
otherwise to be done within time specified by court rule 
or order in civil actions is governed by Fed.R. Civil P. 6, 
in criminal actions by Fed.R.Crim.P. 45, and in appeals 
by Fed.R.App.P. 26. 
Extension agreements. Those agreements which pro
vide for further time in which performance of the basic 
agreement may be performed. 
Extension or renewal of note. Takes place when par
ties agree upon valuable consideration for maturity of 
debt on day subsequent to that provided in original 
contract. Elk Horn Bank & Trust Co. v. Spraggins, 182 
Ark. 27, 30 S.W.2d 858, 859. 
Extensive. Widely extended in space, time, or scope; 
great or wide or capable of being extended. 
Extensores lE�kst::lns6riyzl. In old English law, exten
ders or appraisers. The name of certain officers ap
pointed to appraise and divide or apportion lands. It 
was their duty to make a survey, schedule, or inventory 
of the lands, to lay them out under certain heads, and 
then to ascertain the value of each, as preparatory to 
the division or partition. 
Extent. Amount; scope; range; magnitude. 
In old English law, a writ of execution issuing from 
the exchequer upon a debt due the crown, or upon a 
debt due a private person, if upon recognizance or stat
ute merchant or staple, by which the sheriff was direct
ed to appraise the debtor's lands, and, instead of selling 
them, to set them off to the creditor for a term during 
which the rental will satisfy the judgment. It was so 
called because the sheriff was to cause the lands to be 
appraised at their full extended value before he delivers 
them to the plaintiff. The term was at one time used in 
the various states of the United States to denote writs 
which give the creditor possession of the debtor's lands 
for a limited time till the debt be paid. 
Extenta manerii l::lksten� m::lniriyay/. (The extent or 
survey of a manor.) The title of English statute passed 
4 Edw. I, St. 1; being a sort of direction for making a 
survey or terrier of a manor, and all its appendages. 
Extent in aid. In old English law, that kind of extent 
which issued at the instance and for the benefit of a 
debtor to the crown for the recovery of a debt due to 
himself. This writ was much abused, owing to some 
peculiar privileges possessed by crown-debtors, and its 
use was regulated by Stat. 57 Geo. III, c. 11 7. 3 Bl. 
Comm. 419. Abolished by Crown Proceedings Act 
(1947). The writ formerly used by a debtor of the king

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EXTENT IN AID 
against his debtor to enforce the right of preference 
given to him because of his indebtedness to the king. 
United States Fidelity & Guaranty Co. v. Carter, 161 Va. 
381, 170 S.E. 764, 768. 
Extent in chief. In old English law, a summary process 
by which the king's action was commenced against his 
debtor and his body, personal property (tangible and 
intangible), and lands at once seized for the satisfaction 
of the king's debt. The principal kind of extent, issuing 
at the suit of the crown, for the recovery of the crown's 
debt. Abolished by Crown Proceedings Act (1947). An 
adverse proceeding by the king, for the recovery of his 
own debt. 
Extenuate I ;}kstEmyuweyt/. To lessen; to palliate; to 
mitigate. 
Extenuating circumstances. Such as render a delict or 
crime less aggravated, heinous, or reprehensible than it 
would otherwise be, or tend to palliate or lessen its guilt. 
Such circumstances may ordinarily be shown in order to 
reduce the punishment or damages. In contract law, 
unusual or extraordinary events that prevent perform
ance within specified time (e.g. , strike by workers or 
suppliers). See also Extraordinary circumstances; Mitigat
ing circumstances. 
Extenuation. That which renders a crime or tort less 
heinous than it would be without it. It is opposed to 
aggravation. See Extenuating circumstances. 
Exterior. On the outside, external, pertaining to the 
outside part. Northwestern Casualty & Surety Co. v. 
Barzune, Tex.Civ.App., 42 S.W.2d 100, 103. The surface 
outside. 
External. Apparent, outward, visible from the outside, 
patent, exterior, capable of being perceived. Acting 
from without, as the external surface of a body; physical 
or corporeal, as distinguished from mental or moral. 
Provident Life & Accident Ins. Co. v. Campbell, 18 
Tenn.App. 452, 79 S.W.2d 292, 296. In double indemni
ty clause of life policy, the term "external" applies to 
the force or means and not to the injury. Hanna v. Rio 
Grande Nat. Life Ins. Co., Tex.Civ.App., 181 S.W.2d 908, 
911. 
External, violent and accidental means. Death 
through "external, violent and accidental means" neces
sarily implies that death did not result indirectly from 
disease or bodily infirmity. Mutual Life Ins. Co. of New 
York v. Hassing, C.C.A.lO, 134 F.2d 714, 716. 
Exterritoriality. The privilege of those persons (such as 
fo reign ministers) who, though temporarily resident 
within a country, are not subject to the operation of its 
laws. The exemption from the operation of the ordinary 
laws of the country accorded to fo reign monarchs tempo
rarily within the country and their retinue, to diplomat
ic agents and the members of their household, and to 
others of similar position and rank. See Capitulation. 
Exterus I ekst;r;s l. Lat. A fo reigner or alien; one born 
abroad. The opposite of civis. 
584 
Exterus non habet terras I ekst;}r;s non heyb;}t tehr;s l. 
An alien holds no lands. 
Ex testamento leks test;}mentow/. From, by, or under a 
will. The opposite of ab intestato (q. v.). 
Extinct. Extinguished. No longer in existence or use. 
Lacking a claimant. See Extinguishment. 
Extincto subjecto, tollitur adjunctum I ;}ksti1Jktow 
s;bjektow t61;}t;}r ;}j;)1Jkt;m/. When the subject [or sub
stance] is extinguished, the incident [or adjunct] ceases. 
Thus, when the business for which a partnership has 
been formed is completed, or brought to an end, the 
partnership itself ceases. 
Extinguish. To bring or put an end to. Onondaga 
Water Service Corporation v. Crown Mills, Inc., 132 
Misc. 848, 230 N.Y.S. 691, 698. To terminate or cancel. 
To put out, quench, stifle, as to extinguish a fire or 
flame. See also Cancellation; Termination. 
Extinguishment. The destruction or cancellation of a 
right, power, contract, or estate. The annihilation of a 
collateral thing or subject in the subject itself out of 
which it is derived. See Cancellati on. 
"Extinguishment" is sometimes confounded with 
"merger," though there is a clear distinction between 
them. "Merger" is only a mode of extinguishment, and 
applies to estates only under particular circumstances; 
but "extinguishment" is a term of general application to 
rights, as well as estates. "Extinguishment" connotes 
the end of a thing, precluding the existence of future life 
therein; in "mergers" there is a carrying on of the 
substance of the thing, except that it is merged into and 
becomes a part of a separate thing with a new identity. 
McRoberts v. McRoberts, 177 Okl. 156, 57 P.2d 11 75, 
11 77. 
Extinguishment of common. In English law, loss of 
the right to have common, which could happen from 
various causes. 
Extinguishment of copyhold. In English law, a copy
hold is said to be extinguished when the freehold and 
copyhold interests unite in the same person and in the 
same right, which may be either by the copyhold inter
est coming to the freehold or by the freehold interest 
coming to the copyhold. Under the provisions of the 
Law of Property Act, 1922, copyholds were enfranchised 
and became either leasehold, or more often, freehold. 
Extinguishment of debts. This takes place by pay
ment; by accord and satisfaction; by novation, or the 
substitution of a new debtor; by merger, when the 
creditor recovers a judgment or accepts a security of a 
higher nature than the original obligatio n; by a release; 
by bankruptcy; and where one of the parties, debtor or 
creditor, makes the other his executor. See also Bank
ruptcy proceedings. 
Extinguishment of legacy. This occurs in case the 
identical thing bequeathed is not in existence, or has 
been disposed of so that it does not form part of the 
testator's estate, at the time of his death. See Ademp
tion.

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585 
Extinguishment of lien. Discharge by operation of law. 
Extinguishment of rent. If a person has a yearly rent 
of lands, and afterwards purchases those lands, so that 
he has as good an estate in the land as in the rent, the 
rent is extinguished. Rent may also be extinguished by 
conjunction of estates, by confirmation, by grant, by 
release, and by surrender. 
Extinguishment of ways. This is usually effected by 
unity of possession, as if a man had a way over the close 
of another, and he purchased that close, the way is 
extinguished. 
Extirpation /ekst;}rpeysh;m/. In English law, a species 
of destruction or waste, analogous to estrepement. See 
Estrepement. 
Extirpatione / ekst;}rpeyshiyowniy /. A judicial writ, ei
ther before or after judgment, that lay against a person 
who, when a verdict was found against him for land, 
etc., maliciously overthrew any house or extirpated any 
trees upon it. 
Extorsively / ;}kstors;}vliy /. A technical word used in 
indictments for extortion. 
Extort. To compel or coerce, as a confession or informa
tion by any means serving to overcome one's power of 
resistance, thus making the confession or admission 
involuntary. To gain by wrongful methods; to obtain in 
an unlawful manner, as to compel payments by means 
of threats of injury to person, property, or reputation. 
To exact something wrongfully by threats or putting in 
fear. The natural meaning of the word "extort" is to 
obtain money or other valuable thing either by compul
sion, by actual force, or by the force of motives applied 
to the will, and often more overpowering and irresistible 
than physical fo rce. See also Extortion. 
Extortio est crimen quando quis colore officii extor
quet quod non est debitum, vel supra debitum, vel 
ante tempus quod est debitum /ekstorsh(iy)ow est 
kraym;}n kwondow kwis k;}loriy ;}fishiyay ;}kstorkw;}t 
kwod non est deb;}t;}m, vel s(y)uwpr;} deb;}t;}m, vel rentiy 
temp;}s kwot est deb;}t;}m/. Extortion is a crime when, 
by color of off ice, any person extorts that which is not 
due, or more than is due, or before the time when it is 
due. 
Extortion. The obtaining of property from another in
duced by wrongful use of actual or threatened force, 
violence, or fear, or under color of official right. 18 
U.S.C.A. § 871 et seq.; § 1951. 
A person is guilty of theft by extortion if he purposely 
obtains property of another by threatening to: (1) inflict 
bodily injury on anyone or commit any other criminal 
off ense; or (2) accuse anyone of a criminal off ense; or (3) 
expose any secret tending to subject any person to 
hatred, contempt or ridicule, or to impair his credit or 
business repute; or (4) take or withhold action as an 
official, or cause an off icial to take or withhold action; 
or (5) bring about or continue a strike, boycott or other 
collective unofficial action, if the property is not de
manded or received for the benefit of the group in whose 
interest the actor purports to act; or (6) testify or 
EXTRADITION 
provide information or withhold testimony or informa
tion with respect to another's legal claim or defense; or 
(7) inflict any other harm which would not benefit the 
actor. Model Penal Code, § 223.4. 
See also Blackmail; Hobbs Act; Loan sharking; Shake
down. With respect to Larceny by extortion, see Larceny. 
Compare Coercion. 
Extortionate credit. See Loansharking. 
Ex tota materia emergat resolutio / eks towd;} m;}tiriy;} 
;}m�rg;}t rez;}l(y)uwsh(iy)ow/. The explanation should 
arise out of the whole subject-matter; the exposition of a 
statute should be made from all its parts together. 
It has also been defined as corrupt demanding or 
receiving by a person in office of a fee for services which 
should be performed gratuitously; or, where compensa
tion is permissible, of a larger fee than the law justifies, 
or a fee not due. 
Term applies to persons who exact money either for 
the performance of a duty, the prevention of injury, or 
the exercise of influence, and covers the obtaining of 
money or other property by operating on fear or creduli
ty, or by promise to conceal the crimes of others. Term 
in comprehensive or general sense signifies any oppres
sion under color of right, and in strict or technical sense 
signifies unlawful taking by any off icer, under color of 
office, of any money or thing of value not due him, more 
than is due, or before it is due. 
See also Blackmail; Hobbs Act; Loansharking; Shake
down. 
For the distinction between extortion and exaction, see 
Exaction. 
Extra / ekstr;}/. A Latin preposition, occurring in many 
legal phrases, and meaning beyond, except, without, out 
of, outside. Additional. 
Extra allowance. In New York practice, a sum in 
addition to costs, which may, in the discretion of the 
court, be allowed to the successful party in cases of 
unusual difficulty. Hascall v. King, 54 App.Div. 441, 66 
N.Y.S. 111 2. 
Extra commercia / ekstr;} k;}m�rs(h)(i)y;}/. Property 
once dedicated to public use is "extra commercia". 
Extract, v. To draw out or forth; to pull out from a 
fixed position. 
Extract, n. A portion or segment of a writing. 
Extracta curire / ;}kstrrekt;} kyuriyiy / . In old English 
law, the issues or profits of holding a court, arising from 
the customary fees, etc. 
Extradition. The surrender by one state or country to 
another of an individual accused or convicted of an 
off ense outside its own territory and within the territori
al jurisdiction of the other, which, being competent to 
try and punish him, demands the surrender. U.S. 
Const., Art. IV, § 2; 18 U.S.C.A. § 3181 et seq. Most 
states have adopted the Uniform Criminal Extradition 
Act. See also Interstate rendition; Rendition.

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EXTRA DIVIDEND 
Extra dividend. Dividend paid by corporation in cash 
or stock beyond that which is regularly paid. See also 
Ex dividend; Extraordinary dividend. 
Extra-dotal property. In Louisiana this term is used to 
designate that property which forms no part of the 
dowry of a woman, and which is also called "parapher
nal propert y." Fleitas v. Richardson, 147 U.S. 550, 13 
S.Ct. 495, 37 L.Ed. 276. 
Extra feodum /ekstr� fiy(�)d�m/. Out of his fee; out of 
the seigniory, or not holden of him that claims it. 
Extrahazardous. In the law of insurance, means condi
tions of special and unusual danger. 
Extrahura /ekstr�hyur�/. In old English law, an animal 
wandering or straying about, with an owner; an estray. 
Extrajudicial / ekstr�juwdish�l/. That which is done, 
given, or effected outside the course of regular judicial 
proceedings. Not fo unded upon, or unconnected with, 
the action of a court of law, as e.g. extrajudicial evi
dence, or an extrajudicial oath. 
That which, though done in the course of regular 
judicial proceedings, is unnecessary to such proceedings, 
or interpolated, or beyond their scope; as an extrajudi
cial opinion (dictum). 
That which does not belong to the judge or his juris
diction, notwithstanding fact that he takes cognizance of 
it. 
See also Alternative dispute resolution; Self-help. 
Extrajudicial confession / ekstr�juwdish�l k�nfesh�n/. 
See Confession. 
Extrajudicial evidence. That which is used to satisfy 
private persons as to facts requiring proof. 
Extrajudicial oath. One taken not in the course of 
judicial proceedings, or taken without any authority of 
law, though taken fo rmally before a proper person. 
Extrajudicial statement. Any utterance, written or 
oral, made outside of court. It is governed by the 
hearsay rule and its exceptions when off ered in court as 
evidence. 
Extra judicium /ekstr� j�dish(iy)�m/. Extrajudicial; 
out of the proper cause; out of court; beyond the juris
diction. See Extrajudicial. 
Extra jus / ekstr� j�s/. Beyond the law; more than the 
law requires. 
Extralateral right. In mining law, the right of the 
owner of a mining claim duly located on the public 
domain to fo llow, and mine, any vein or lode the apex of 
which lies within the boundaries of his location on the 
surface, notwithstanding the course of the vein on its 
dip or downward direction may so far depart from the 
perpendicular as to extend beyond the planes which 
would be fo rmed by the vertical extension downwards of 
the side lines of his location. 
Extra legem / ekstr� liyj�m/. Out of the law; out of the 
protection of the law. 
586 
Extra legem positus est civiliter mortuus / ekstr� 
liyj�m p6z�d�s est s�vil�t�r m6rtyuw�s/. He who is 
placed out of the law is civilly dead. International Bank 
v. Sherman, 101 U.S. 403, 25 L.Ed. 866. 
Extramural / ekstr�myur�l/ . As applied to the powers 
of a municipal corporation, its "extramural" powers are 
those exercised outside the corporate limits, as distin
guished from "intramural". 
Extranational. Beyond the territorial and governing 
limits of a country. See also Extraterritorial. 
Extraneous evidence. With reference to a contract, 
deed, will, or any writing, extraneous evidence is such as 
is not furnished by the document itself, but is derived 
from outside sources; the same as evidence aliunde. 
See also Aliunde; Parol evidence rule. 
Extraneous offense. One that is extra, beyond, or for
eign to the off ense for which the party is on trial. 
Ridinger v. State, 146 Tex.Cr.R. 286, 174 S.W.2d 319, 
320. 
Extraneous questions. Issues which are beyond or be
side the point to be decided. 
Extraneus / �kstreyniy�s/. In old English law, one for
eign born; a fo reigner. 
In Roman law, an heir not born in the family of the 
testator. Those of a fo reign state. The same as alienus. 
Extraneus est subditus qui extra terram, i.e., potesta
tem regis natus est / �kstreyniy�s est s�bd�t�s kway 
ekstr� tehr�m, id est, powt�steyt�m riyj�s neyt�s est/. A 
fo reigner is a subject who is born out of the territory, 
i.e., government of the king. 
Extraordinary. Out of the ordinary; exceeding the 
usual, average, or normal measure or degree; beyond or 
out of the common order, method, or rule; not usual, 
regular, or of a customary kind; remarkable; uncom
mon; rare; employed for an exceptional purpose or on a 
special occasion. Courtney v. Ocean Accident & Guar
anty Corporation, 346 Mo. 703, 142 S.W.2d 858, 86l. 
The word is both comprehensive and flexible in mean
ing. 
Extraordinary designates an accident, casualty, occur
rence or risk of a class or kind other than those which 
ordinary experience or prudence would fo resee, antic
ipate or provide for. Western & Atlantic Ry. Co. v. 
Hassler, 92 Ga.App. 278, 88 S.E.2d 559, 562. 
Extraordinary average. In admiralty law, a contribu
tion by all the parties concerned in a commercial voy
age, either as to the vessel or cargo, toward a loss 
sustained by some of the parties in interest for the 
benefit of all. 
Extraordinary care. Synonymous with greatest care, 
utmost care, highest degree of care. See Care; Diligence; 
Negligence. 
Extraordinary circumstances. Factors of time, place, 
etc., which are not usually associated with a particular 
thing or event; out of the ordinary factors. See also 
Extenuating circumstances; Mitigating circumstances.

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587 
The "extraordinary circumstances" justifying federal 
equitable intervention in pending state criminal prose
cution must be extraordinary in the sense of creating an 
extraordinary pressing need for immediate federal eq
uitable relief, not merely in the sense of presenting a 
highly unusual factual situation. Kugler v. Helfant, 
N.J., 421 U.S. 117, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15. 
Extraordinary danger. Danger or risk of employment, 
not ordinarily incident to the service. See also Extraordi
nary hazard; Extraordinary risk. 
Extraordinary dividend. Dividend of corporation 
which is nonrepetitive and generally paid at irregular 
time because of some unusual corporate event (e.g. un
usually high profits). An "extraordinary dividend" is 
distinguished from an "ordinary dividend" or "regular 
dividend" in that it is not declared from ordinary profits 
arising out of regular course of business of corporation 
and is generally declared by reasons of unusually large 
income or unexpected increment in capital assets due to 
fo rtuitous conditions or circumstances occurring outside 
of activities and control of corporation but advantageous 
to corporation either in stepping up its product and sales 
or in giving added value to its property. In re Bank of 
N. Y. & Fifth Ave. Bank, 105 N.Y.S.2d 211, 217, 222. 
See also Extra dividend. 
Cash disbursements by "wasting asset" companies are 
apportioned as "extraordinary dividends" where they 
represent, in part at least, distribution of proceeds of 
capital assets. 
Extraordinary expenses. An expense characterized by 
its unusual nature and infrequency of occurrence; e.g. 
plant abandonment, goodwill write-off, large product 
liability judgment. 
This term in a constitutional provision that the state 
may incur indebtedness for extraordinary expenses, 
means other than ordinary expenses and such as are 
incurred by the state for the promotion of the general 
welfare, compelled by some unforeseen condition which 
is not regularly provided for by law, such as flood, 
famine, fire, earthquake, pestilence, war, or any other 
condition that will compel the state to put forward its 
highest endeavors to protect the people, their property, 
liberty, or lives. 
Extraordinary flood. A flood whose unexplained occur
rences is not foreshadowed by the usual course of na
ture, and whose magnitude and destructiveness could 
not have been anticipated or provided against by the 
exercise of ordinary foresight. Jensen v. Buffalo Drain
age Dist. of Cloud County, 148 Kan. 712, 84 P.2d 961, 
965. One of such unusual occurrence that it could not 
have been foreseen by men of ordinary experience and 
prudence. 
Extraordinary gain or loss. A gain or loss that is both 
unusual and infrequent; e.g. , gain from sale of a signifi
cant segment of a business, loss resulting from an earth
quake. 
Extraordinary grand jury. Such jury is limited in 
scope of its investigation and may not go beyond terms 
EXTRA PRJESENTIAM MARITI 
of executive proclamation, and examination of witness 
must be confined within those terms, and must not be 
used as a means of disclosing or intermeddling with 
extraneous matters. 
Extraordinary hazard. One not commonly associated 
with a job or undertaking. If hazards are increased by 
what other employees do, and injured employee has no 
part in increasing them, they are "extraordinary ". 
Stone v. Howe, 92 N.H. 425, 32 A.2d 484, 487. See also 
Extraordinary risk. 
Extraordinary remedies. The writs of mandamus, quo 
warranto, habeas corpus, and some others are often 
classified or termed "extraordinary remedies," in contra
distinction to the ordinary remedy by action. 
Under Rules practice in the federal courts and most 
states, most extraordinary "writs" have been abolished. 
In any action seeking relief fo rmerly obtainable under 
any such writ, the procedure shall follow that of a 
regular action. See Fed.R.Civ.P. 60(b), 81(b). 
Extraordinary repairs. Within the meaning of a lease, 
such repairs as are made necessary by some unusual or 
unforeseen occurrence which does not destroy the build
ing but merely renders it less suited to the use for which 
it was intended. Courtney v. Ocean Accident & Guaran
ty Corporation, 346 Mo. 703, 142 S.W.2d 858, 861. In 
lease provisions for "extraordinary" repairs, word "ex
traordinary" means beyond or out of common order of 
rule, not the usual, customary or regular kind, not 
ordinary. Atlanta & St. A. B. Ry. Co. v. Chilean Nitrate 
Sales Corp., D.C.Fla., 277 F.Supp. 242, 246. 
Extraordinary risk. A risk lying outside of the sphere 
of the normal, arising out of conditions not usual in the 
business. It is one which is not normally and necessar
ily incident to the employment, and is one which may be 
obviated by the exercise of reasonable care by the em
ployer. See also Extraordinary hazard. 
Extraordinary session. A legislative session, called 
usually by the governor, which meets in the interval 
between regular sessions to handle specific legislation. 
In most states such sessions are limited to the considera
tion of matters specified in the governor's call. See also 
Extra session, supra. 
Extraordinary storm. One which is not necessarily an 
unprecedented one, but one that happens so rarely that 
it is unusual and not ordinarily to be expected. Okla
homa City v. Evans, 173 Okl. 586, 50 P.2d 234, 238. See 
also Extraordinary flood. 
Extraordinary writs. See Extraordinary remedies. 
Extraparochial /ekstr�p�r6wkiy�l/. In English law, out 
of a parish; not within the bounds or limits of any 
parish. 
Extrapolation. The process of estimating an unknown 
number outside the range of known numbers. Term 
sometimes used in cases when a court deduces a princi
ple of law from another case. 
Extra prresentiam mariti / ekstr� pr�zensh(iy)�m 
mrer�tay /. Out of her husband's presence.

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EXTRA QUATUOR MARIA 
Extra quatuor maria / ekstr;} kwotuw;}r mreriy;}/. Be
yond the four seas; out of the kingdom of England. 
Extra regnum /ekstr;} regn;}m/. Out of the realm. 
Extra session. After a Legislature has adjourned or 
prorogued, it may be recalled for an additional session 
by the Governor to deal with matters which could not be 
considered during the regular term. Also, a court may 
provide additional court sessions to eliminate or reduce 
a case backlog. See also Extraordinary session. 
Extraterritorial. Beyond the physical and juridical 
boundaries of a particular state or country. See Extra
territoriality . 
Extraterritoriality. The extraterritorial operation of 
laws; that is, their operation upon persons, rights, or 
jural relations, existing beyond the limits of the enact
ing state or nation, but still amenable to its laws. A 
term used, especially fo rmerly, to express, in lieu of the 
word exterritoriality the exemption from the obligation 
of the laws of a state granted to fo reign diplomatic 
agents, warships, etc. The term is used to indicate 
jurisdiction exercised by a nation in other countries by 
treaty, or by its own ministers or consuls in fo reign 
lands. Crime is said to be extraterritorial when commit
ted in a state or country other than that of the forum in 
which the party is tried. 
Extraterritorial jurisdiction. Juridical power which 
extends beyond the physical limits of a particular state 
or country. See Long arm statutes. 
Extra territorium / ekstr;} tehr;}toriy;}m/. Beyond or 
without the territory. 
Extra territorium jus dicenti impune non paretur 
/ ekstr;} tehr;}toriy;}m j�s d;}sentay impyuwniy non 
p;}riyt;}r/. One who exercises jurisdiction out of his 
territory is not obeyed with impunity. He who exercises 
judicial authority beyond his proper limits cannot be 
obeyed with safety. 
Extravagantes / ekstr;}v;}grentiyz/. In canon law, those 
decretal epistles which were published after the Clemen
tines. They were so called because at first they were 
not digested or arranged with the other papal constitu
tions, but seemed to be, as it were, detached from the 
canon law. They continued to be called by the same 
name when they were afterwards inserted in the body of 
the canon law. The first extravagantes are those of 
Pope John XXII, successor of Clement V. The last 
collection was brought down to the year 1483, and was 
called the "Common Extravagantes," notwithstanding 
that they were likewise incorporated with the rest of the 
canon law. 
Extra viam /ekstr;} vay;}m/. Outside the way. In com
mon law pleading, where the defendant in trespass 
pleaded a right of way in justification, and the replica
tion alleged that the trespass was committed outside the 
limits of the way claimed, these were the technical 
words to be used. 
Extra vires / ekstr;} vayriyz/. Beyond powers. See Ultra 
(U ltra vires). 
588 
Extra work. As used in connection with construction 
contract, means work done not required in performance 
of the contract, i.e. something done or furnished in 
addition to or in excess of the requirement of the con
tract. Work entirely outside and independent of con
tract-something not required or contemplated in its 
performance. 
Extra work, for which a contractor is entitled to 
charge additional compensation, depends on construc
tion of the original contract, and generally means only 
labor and materials not contemplated by or embraced in 
terms of the original contract. Trinity Builders, Inc. v. 
Schaff, N.D., 199 N.W.2d 914, 918. Such work is usually 
defined as being work not fo reseen at time of entrance 
into contract. W. R. Ferguson, Inc. v. William A. Ber
busse, Jr., Inc., Del.Super., 216 A.2d 876, 879. Materials 
and labor not contemplated by the contract, but which 
are required by changes in the plans and specifications 
made after the contract had been entered into, are 
"extra work". Collins v. Hall, Tex.Civ.App., 161 S.W.2d 
311, 314. 
Extreme. At the utmost point, edge, or border; most 
remote. Last; conclusive. Greatest, highest, strongest, 
or the like. Immoderate; violent. 
Extreme case. One in which the facts or the law or both 
reach the outer limits of probability; desperate. 
Extreme cruelty. As grounds for divorce, may consist of 
personal injury or physical violence or it may be acts or 
omissions of such character as to destroy peace of mind 
or impair bodily or mental health of person upon whom 
inflicted or be such as to destroy the ob jects of matrimo
ny. Schlueter v. Schlueter, 158 Neb. 233, 62 N.W.2d 
871,876. 
Extreme low tide. Tides which are lower than lower 
low. State v. Edwards, 188 Wash. 467, 62 P.2d 1094, 
1095. 
Extremis /(in) ;}kstriym;}s/. When a person is sick, be
yond the hope of recovery, and near death, he is said to 
be in extremis. 
Extremis probatis, prresumuntur media / ;}kstriym;}s 
pr;}beyt;}s, priyzy;}m�nt;}r miydiy;}/. Extremes being 
proved, intermediate things are presumed. 
Extremity. The furthest point, section, or part. Limb of 
the body (hand or foot). Extreme danger or need. Des
perate act or measure. 
Extrinsic. Foreign; from outside sources; dehors. As to 
Extrinsic fraud, see Fraud. 
Extrinsic ambiguity. In a written contract, such is an 
uncertainty which does not arise by the terms of the 
instrument itself, but is created by some collateral mat
ter not appearing in the instrument. Pacific Indemnity 
Co. v. California Electric Works, 29 Cal.App.2d 260, 84 
P.2d 313, 320. 
Extrinsic evidence. External evidence, or that which is 
not contained in the body of an agreement, contract, and 
the like. . Evidence which does not appear on the face of 
a document, but which is available from other sources

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589 
such as statements by the parties and other circum
stances surrounding the transaction. Extrinsic evidence 
is also said to be evidence not legitimately before the 
tribunal in which the determination is made. See Parol 
evidence rule. 
Extrinsic fraud. See Fraud. 
Ex turpi causa non oritur actio I eks t�rpay k6z� non 
6r�t�r reksh(iy)ow/. Out of a base [illegal, or immoral] 
consideration, an action does [can] not arise. 
Ex turpi contractu actio non orit�r I eks t�rpay 
k�ntrrektyuw reksh(iy)ow non 6r�t�r/. From an immoral 
or iniquitous contract an action does not arise. A con
tract fo unded upon an illegal or immoral consideration 
cannot be enforced by action. 
Exuere patriam I�gz(y)uw�riy pretriy�m/. To throw off 
or renounce one's country or native allegiance; to expa
triate one's self. 
Exulare legz�leriy/. In old English law, to exile or 
banish. Nullus liber homo, exuletur, nisi, etc., no free
man shall be exiled, unless, etc. 
Ex una parte I eks yuwn� partiy I. Of one part or side; 
on one side. 
Ex uno disces omnes leks yuwnow disiyz 6mniyz/. 
From one thing you can discern all. 
Exuperare legz(y)uwp�reriy/. To overcome; to appre
hend or take. 
Ex utraque parte leks yuwtreykwiy partiy/. On both 
sides. 
Ex utrisque parentibus conjuncti leks yuwtriskwiy 
p�rent�b�s k�nj�1Jktay I. Related on the side of both 
parents; of the whole blood. 
Ex visceribus I eks v�sehr�b�sl . From the bowels. 
From the vital part, the very essence of the thing. Ex 
visceribus verborum, from the mere words and nothing 
else. 
Ex visitatione Dei I eks viz�teyshiy6wniy diyay I. By 
the dispensation of God; by reason of physical incapaci
ty. Anciently, when a prisoner, being arraigned, stood 
silent instead of pleading, a jury was impaneled to 
EYRER 
inquire whether he obstinately stood mute or was dumb 
ex visitatione Dei. 
Also by natural, as distinguished from violent, causes. 
When a coroner's inquest finds that the death was due 
to disease or other natural cause, it is frequently 
phrased "ex visitatione Dei. " 
Ex visu scriptionis leks vaysyuw skripshiy6wn�s/. 
From sight of the writing; from having seen a person 
write. A term employed to describe one of tb,e modes of 
proof of handwriting. 
Ex vi termini leks vay t�rm�nay I. From or by the force 
of the term. From the very meaning of the expression 
used. 2 Bl.Comm. 109, 11 5. 
Ex voluntate leks vobnteytiy I. Voluntarily; from free 
will or choice. 
Ex warrants. A security is traded "ex warrants" when 
sold without warrants which have been retained by 
seller. 
Eyde leyd/. Aid; assistance; relief. A subsidy. 
Eyewitness. A person who can testify as to what he has 
seen from personal observati on. Wigginton v. Order of 
United Commercial Travelers of America, C.C.A.lnd., 
126 F.2d 659,662, 665, 666,667. One who saw the act, 
fact, or transaction to which he testifies. Distinguished 
from an ear-witness (a uri tus). Pannell v. Sovereign 
Camp, W. O. W., 171 Tenn. 245, 102 S.W.2d 50, 52. 
Eyewitness identification. Type of evidence by which 
one who has seen the event testifies as to the person or 
persons involved from his own memory of the event. 
See also Lineup. 
Eygne leyn/. The same as "eigne" (q.v .). 
Eyre ler/. A journey; a court of itinerant justices. 
Justices in eyre were judges commissioned in Anglo
Norman times in England to travel systematically 
through the kingdom, once in seven years, holding 
courts in specified places for the trial of certain, descrip
tions of causes. 
Eyrer ler�r/. L. Fr. To travel or journey; to go about 
or itinerate.

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F 
F. Under the old English criminal law, this letter was 
branded upon felons upon their being admitted to cler
gy; as also upon those convicted of fights or frays, or 
falsity. 
Federal Reporter, First Series. See Federal Reporter. 
F.2d. Federal Reporter, Second Series. See Federal Re
porter. 
F.A.A. See Federal Aviation Admini stration. In maritime 
insurance means: "Free of all average", denoting that 
the insurance is against total loss only. 
Fabrica /frebr�k�/. In old English law, the making or 
coining of money. 
Fabricare Ifrebr�keriy /. Lat. To make. Used in old 
English law of a lawful coining, and also of an unlawful 
making or counterfeiting of coin. Used in an indict
ment for forging a bill of lading. 
Fabricate. To invent; to devise falsely. See also Coun
terfeit; Forgery. 
Fabricated evidence. Evidence manufactured or ar
ranged after the fact, and either wholly false or else 
warped and discolored by artifice and contrivance with a 
deceitful intent. To fabricate evidence is to arrange or 
manufacture circumstances or indicia, after the fact 
committed, with the purpose of using them as evidence, 
and of deceitfully making them appear as if accidental 
or undesigned. To devise falsely or contrive by artifice 
with the intention to deceive. Such evidence may be 
wholly forged and artificial, or it may consist in so 
warping and distorting real facts as to create an errone
ous impression in the minds of those who observe them 
and then presenting such impression as true and genu
ine. See also Fabricated fact; Perjury. 
Fabricated fact. In the law of evidence, a fact existing 
only in statement, without any foundation in truth. An 
actual or genuine fact to which a false appearance has 
been designedly given; a physical object placed in a false 
connection with another, or with a person on whom it is 
designed to cast suspicion. See also Deceit; False fact; 
Fraud; Perjury. 
Fabric lands. In old English law, lands given towards 
the maintenance, rebuilding, or repairing of cathedral 
and other churches. 
Fabula /freby�l�/. In old European law, a contract or 
formal agreement; particularly used in the Lombardic 
and Visigothic laws to denote a marriage contract or a 
will. 
Face. The surface of anything, especially the front, 
upper, or outer part or surface. That which particularly 
offers itself to the view of a spectator. The words of a 
written paper in their apparent or obvious meaning, as, 
the face of a note, bill, bond, check, draft, judgment 
record, or contract. The face of a judgment for which it 
was rendered exclusive of interest. Cunningham v. 
Great Southern Life Ins. Co., Tex.Civ.App., 66 S.W.2d 
765, 773. 
Face amount. The face amount of an instrument is that 
shown by the mere language employed, and excludes 
any accrued interest. See Face of instrument; Face 
value. 
Face amount insured by the policy. Within statute 
relating to extended life insurance, means the amount 
which is, in all events, payable under the policy as 
straight life insurance without regard to additional fea
tures such as accident or disability insurance. Wilkins 
v. Metropolitan Life Ins. Co., 350 Mo. 185, 165 S.W.2d 
858, 861, 862. See also Face of policy; Face value. 
Face of instrument. That which is shown by the lan
guage employed, without any explanation, modification, 
or addition from extrinsic facts or evidence. Investors' 
Syndicate v. Willcuts, D.C.Minn., 45 F.2d 900, 902. 
Thus, if the express terms of the paper disclose a fatal 
legal defect, it is said to be "void on its face." Regarded 
as an evidence of debt, the face of an instrument is the 
principal sum which it expresses to be due or payable, 
without any additions in the way of interest or costs. 
See also Face value. 
Face of judgment. The sum for which it was rendered, 
exclusive of interest. 
Face of policy. A phrase which, as used in a statute 
forbidding life insurance policies to contain provision for 
any mode of settlement at maturity of less value than 
the amount insured on the "face of the policy," does not 
mean merely the first page, but denotes the entire 
insurance contract contained in the policy, including a 
rider attached and referred to on the first page. See 
also Face value. 
Face of record. The entire record in a case, not merely 
what the judgment recites. Every part of trial proceed
ings reserved in courts of record under direction of court 
for purpose of its records. Permian Oil Co. v. Smith, 129 
Tex. 413, 107 S.W.2d 564, 566. The "face of the record" 
means, in a criminal case, the indictment and the ver
dict. See also Record. 
590

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591 
Facere Ifeys�riy/. Lat. To do; to make. Thus, facere 
defaltam, to make default; facere duellum, to make the 
duel, or make or do battle; facere finem, to make or pay 
a fine; facere legem, to make one's law; facere sacramen
tum, to make oath. 
Face value. The value of an insurance policy, bond, 
note, mortgage, or other security, as given on the certifi
cate or instrument, payable upon maturity of the instru
ment. The face value is also the amount on which 
interest or coupon payments are calculated. Thus, a 
10% bond with face value of $1000 pays bondholders 
$100 per year. Face value is also often referred to as 
the par value or nominal value of the instrument. The 
value which can be ascertained from the language of the 
instrument without aid from extrinsic facts or evidence. 
Investors' Syndicate v. Willcuts, D.C.Minn., 45 F.2d 900, 
902. See also Face amount. Compare Market value. 
Facial disfigurement. That which impairs or injures 
the beauty, symmetry, or appearance of a person. That 
which renders unsightly, misshapen or imperfect or 
deforms in some manner. Ferguson v. State Highway 
Department, 197 S.C. 520, 15 S.E.2d 775, 778. 
Facias Ifeys(h)(i)y;}s/. That you cause. 
Occurring in the phrases "scire facias" (that you cause 
to know), "fieri facias" (that you cause to be made), etc. 
Used also in the phrases Do ut facias (I give that you 
may do), Facio ut facias (I do that you may do), two of 
the four divisions of considerations made by Blackstone, 
2 Comm. 444. See Facio ut des; Facio ut facias. 
Facie. See Facies. 
Faciendo Ifeys(h)iyendow/. In doing or paying; in some 
activity. 
Facies Ifeys(h)iy(iy)z/. Lat. The face or countenance; 
the exterior appearance or view; hence, contemplation 
or study of a thing on its external or apparent side. 
Thus, prima facie means at the first inspection, on a 
preliminary or exterior scrutiny. When we speak of a 
"prima facie case," we mean one which, on its own 
showing, on a first examination, or without investigat
ing any alleged defenses, is apparently good and main
tainable. 
Facilitate. To free from difficulty or impediment. Pon 
Wing Quong v. United States, C.C.A.Cal., 111 F.2d 751, 
756. Within statute prohibiting use of facilities of inter
state commerce with intent to promote, manage, facili
tate, or carry on unlawful activity means to make easy 
or less difficult. U.S. v. JUdkins, C.A.Tenn., 428 F.2d 
333, 335. See also Facilitation; Facilities. 
Facilitation. In criminal law, the act of making it 
easier for another to commit crime; e.g. changing of cars 
to evade police officer who has suspect under surveil
lance and thus to enable a clandestine transfer of con
traband to take place would constitute "facilitation" 
within forfeiture statute. U. S. v. One (1) Chevrolet 
Corvette Auto. Serial No. 1943 71S121113, C.A.Fla., 496 
F.2d 210, 212. See also Accomplice; Aid and abet. 
FACT 
Facilities. That which promotes the ease of any action, 
operation, transaction, or course of conduct. The term 
normally denotes inanimate means rather than human 
agencies, though it may also include animate beings 
such as persons, people and groups thereof. Cheney v. 
Tolliver, 234 Ark. 973, 356 S.W.2d 636, 638. 
A name formerly given to certain notes of some of the 
banks in the state of Connecticut, which were made 
payable in two years after the close of the war of 1812. 
Springfield Bank v. Merrick, 14 Mass. 322. 
Facility. Something that is built or installed to perform 
some particular function, but it also means something 
that promotes the ease of any action or course of con
duct. Raynor v. American Heritage Life Ins. Co., 123 
Ga.App. 247, 180 S.E.2d 248, 250. See also Facilities. 
Facility of payment clause. Provision in insurance 
policy providing for appointment by insured and benefi
ciary of persons authorized to receive payment. Dow
ney v. Downey, 1 Conn.App. 489, 472 A.2d 1296, 1298. 
It confers on insurer an option as to whom it will make 
payment. Metropolitan Life Ins. Co. v. Brown for Use 
and Benefit of Fleming, 25 Tenn.App. 514, 160 S.W.2d 
434, 438. 
Facinus quos inquinat requat Ifres;}n;}s kWQWS ilJkw;}n;}t 
iykw;}t/. Guilt makes equal those whom it stains. 
Facio ut des Ifeys(h)(i)yow �t diyz/. Lat. I do that you 
may give. A species of contract in the civil law (being 
one of the innominate contracts) which occurs when a 
man agrees to perform anything for a price either specif
ically mentioned or left to the determination of the law 
to set a value on it; as when a servant hires himself to 
his master for certain wages or an agreed sum of money. 
2 Bl.Comm. 445. Also, the consideration of that species 
of contract. 
Facio ut facias Ifeys(h)(i)yow �t feys(h)(i)y;}s/. Lat. I do 
that you may do. The consideration of that species of 
contract in the civil law, or the contract itself (being one 
of the innominate contracts), which occurs when I agree 
with a man to do his work for him if he will do mine for 
me; or if two persons agree to marry together, or to do 
any other positive acts on both sides; or it may be to 
forbear on one side in consideration of something done 
on the other. 2 Bl.Comm. 444. 
Facsimile Ifreksim;}liy I. An exact copy, preserving all 
the marks of the original. 
Facsimile signature. One which has been prepared and 
reproduced by some mechanical or photographic process. 
Many states have adopted the Uniform Facsimile Signa
tures of Public Off icials Act. 
Fact. A thing done; an action performed or an incident 
transpiring; an event or circumstance; an actual occur
rence; an actual happening in time or space or an event 
mental or physical; that which has taken place. City of 
South Euclid v. Clapacs, 6 Ohio Misc. 101, 213 N.E.2d 
828, 832. A fact is either a state of things, that is, an 
existence, or a motion, that is, an event. The quality of 
being actual; actual existence or occurrence.

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FACT 
Evidence. A circumstance, event or occurrence as it 
actually takes or took place; a physical object or appear
ance, as it usually exists or existed. An actual and 
absolute reality, as distinguished from mere supposition 
or opinion. A truth, as distinguished from fiction or 
error. "Fact" means reality of events or things the 
actual occurrence or existence of which is to be deter
mined by evidence. Peoples v. Peoples, 10 N.C.App. 402, 
179 S.E.2d 138, 141. Under Rule of Civil Procedure 
41(b), providing for motion for dismissal at close of 
plaintiffs evidence in nonjury case on ground that upon 
the facts and the law plaintiff has shown no right to 
relief, the "facts" referred to are the prima facie facts 
shown by plaintiffs evidence viewed in light most favor
able to him. Schad v. Twentieth Century-Fox Film 
Corporation, C.C.A.Pa., 136 F.2d 991, 993. 
Fact and law distinguished. "Fact" is very frequently 
used in opposition or contrast to "law". Thus, questions 
of fact are for the jury; questions of law for the court. 
E.g. fraud in fact consists in an actual intention to 
defraud, carried into effect; while fraud imputed by law 
arises from the person's conduct in its necessary rela
tions and consequences. A "fact", as distinguished from 
the "law", may be taken as that out of which the point 
of law arises, that which is asserted to be or not to be, 
and is to be presumed or proved to be or not to be for the 
purpose of applying or refusing to apply a rule of law. 
Hinckley v. Town of Barnstable, 311 Mass. 600, 42 
N.E.2d 581, 584. Law is a principle; fact is an event. 
Law is conceived; fact is actual. Law is a rule of duty; 
fact is that which has been according to or in contraven
tion of the rule. See E.g. Fact question. 
See also Adjudicative facts; Collateral facts; Dispositive 
facts; Evidentiary facts; Fabricated fact; Fact question; 
Finding (Finding of fact ); Material fact; Principal (Princi
pal fact ); Ultimate facts. 
Facta Ifrekt�/. In old English law, deeds. Facta armo
rum, deeds or feats of arms; that is, jousts or tourna
ments. 
Facta sunt potentiora verbis Ifrekt� s�nt p�tEmshiy6r� 
v:}rb�s/. Deeds [or facts] are more powerful than words. 
Facta tenent multa qure fieri prohibentur Ifrekt� 
t{m�nt m:}lt� kwiy fay�ray prowh�bent�r/. Deeds con
tain many things which are prohibited to be done. 
Fact finder. Person or· persons appointed by business, 
government, or by court to investigate, hear testimony 
from witnesses, or otherwise determine and report facts 
concerning a particular event, situation, or dispute (e.g., 
jury; administrative hearing officer). See also Trier of 
fact. 
Fact finding board. A group or committee appointed 
by business, labor organization, government, or similar 
body to investigate and report facts concerning some 
event or situation. 
Factio testamenti Ifreksh(iy)ow test�m€mtay/. In the 
civil law, the right, power, or capacity of making a will; 
called "factio activa. " 
592 
The right or capacity of taking by will; called "factio 
passiva. " 
Fact material to risk. See Material fact. 
Facto I frektow I. In fact; by an act; by the act or fact. 
Ipso facto, by the act itself; by the mere effect of a fact, 
without anything superadded, or any proceeding upon it 
to give it effect. 
Facto et animo Ifrektow et ren�mow/. In fact and in
tent. 
Factor. At common law, a commercial agent, employed 
by a principal to sell merchandise consigned to him for 
that purpose, for and in behalf of the principal, but 
usually in his own name, being entrusted with the 
possession and control of the goods, and being remuner
ated by a commission, commonly called "factorage." A 
commercial agent to whom the possession of personalty 
is entrusted by or for the owner, to be sold, for a 
compensation, in pursuance of the agent's usual trade or 
business, with title to goods remaining in principal and 
the "factor" being merely a bailee for the purposes of 
the agency. Neild v. District of Columbia, 71 App.D.C. 
306, 110 F.2d 246, 259. 
A firm (typically a finance company) that purchases a 
firm's receivables at a discount and is responsible for 
processing and collecting the balances of these accounts. 
Financier who generally lends money and takes in re
turn an assignment of accounts receivable or some other 
security. In re Freeman, C.A.N.J., 294 F.2d 126, 129, 
131. See Factoring. 
See also Commission merchant; Jobber. 
Any circumstance or influence which brings about or 
contributes to a result such as a factor of production. 
Broker and factor distinguished. A factor differs from a 
"broker" in that he is entrusted with the possession, 
management, and control of the goods (which gives him 
a special property in them); while a broker acts as a 
mere intermediary without control or possession of the 
property. A factor may buy and sell in his own name, 
as well as in that of the principal, while a broker, as 
such, cannot ordinarily buy or sell in his own name. 
Factorage Ifrekt(�)r�j/. The wages, allowance, or com
mission paid to a factor for his services. The business of 
a factor. 
Factoring. Sale of accounts receivable of a firm to a 
factor at a discounted price. The purchase of accounts 
receivable from a business by a factor who thereby 
assumes the risk of loss in return for some agreed 
discount. Manhattan Factoring Corp. v. Orsburn, 238 
Ark. 947, 385 S.W.2d 785, 790. See Factor. 
Factorizing process. A process by which the effects of a 
debtor are attached in the hands of a third person. 
More commonly termed "trustee process", "garnish
ment", and process by "foreign attachment". 
Factors' acts. The name given to several English stat
utes (6 Geo. IV, c. 94; 5 & 6 Vict., c. 39; 40 & 41 Vict., c. 
39) by which a factor was enabled to make a valid pledge 
of the goods, or of any part thereof, to one who believed

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593 
him to be the bona fide owner of the goods. Similar 
legislation is not uncommon in the United States. 
Factor's lien. The right (usually provided by statute) of 
a factor to keep possession of his principal's merchan
dise until the latter has settled his account with him. 
Factory acts. Laws enacted for the purpose of regulat
ing the hours of work, and the health and safety condi
tions. See e.g. Fair Labor Standards Act; Occupational 
Safety and Health Act; Wage and hour laws. 
Factory prices. The prices at which goods may be 
bought at the factories, as distinguished from the prices 
of goods bought in the market after they have passed 
into the hands of wholesalers or retailers. 
Fact question. Those issues in a trial or hearing which 
concern facts or events and whether such occurred and 
how they occurred as contrasted with issues and ques
tions of law. Fact questions are for the jury, unless the 
issues are presented at a bench trial, while law ques
tions are decided by the judge. Fact questions and their 
findings are generally not appealable though rulings of 
law are subject to appeal. 
Facts. See Fact. 
Facts incomplete. A certificate of trial judge to bill of 
exceptions not certifying to correctness of any recital 
therein and only certifying that the bill is "facts incom
plete", that is, not finished, not perfect, defective, veri
fies nothing and brings nothing before the Court of 
Appeals for review. Loving v. Kamm, Ohio App., 34 
N.E.2d 59l. 
Facts in issue. Those matters of fact on which the 
plaintiff proceeds by his action, and which the defendant 
controverts in his defense. Under civil rule practice in 
the federal courts, and in most state courts, the facts 
alleged in the initial complaint are usually quite brief, 
with the development of additional facts being left to 
discovery and pretrial conference. 
Factum Ifrekt;}m/. A fact, event, deed, act, doing. A 
statement of facts. 
Civil law. Fact; a fact; a matter of fact, as distin
guished from a matter of law. 
French law. A memoir which contains concisel y set 
down the fact on which a contest has happened, the 
means on which a party founds his pretensions, with the 
refutation of the means of the adverse party. 
Old English law. A deed; a person's act and deed. A 
culpable or criminal act; an act not founded in law. 
Anything stated or made certain; a deed of conveyance; 
a written instrument under seal: called, also, charta. 2 
Bl.Comm. 295. A fact; a circumstance; partiCUlarly a 
fact in evidence. Factum probandum (the fact to be 
proved). 
Old European law. A portion or allotment of land; 
otherwise called a hide, bovata, etc. 
Testamentary law. The execution or due execution of a 
will. The factum of an instrument means not merely 
the signing of it, and the formal publication or delivery, 
FACULTIES, COURT OF 
but proof that the party well knew and understood the 
contents thereof, and did give, will, dispose, and do, in 
all things, as in the said will is contained. Weather
head's Lessee v. Baskerville, 52 U.S. (11 How.) 329, 13 
L.Ed. 717. 
Factum a judice quod ad ejus officium non spectat 
non ratum est Ifrekt;}m ey juwd;}siy, kwod red iyj;}s 
;}fish(iy);}m non spekt;}t, non reyt;}m est/. An action of a 
judge which relates not to his office is of no force. 
Factum cuique suum non adversario, nocere debet 
Ifrekt;}m k(yuw)aykwiy s(y)uw;}m non redv;}rseriyow, 
nos;}riy deb;}t/. A party's own act should prejudice 
himself, not his adversary. 
Factum infectum fieri nequit Ifrekt;}ID ;}nfekt;}m 
fay;}ray nekw;}t/. A thing done cannot be undone. 
Factum juridicum Ifrek�m j;}rid;}k;}m/. A juridical fact. 
Denotes one of the factors or elements constituting an 
obligation. 
Factum negantis nulla probatio sit Ifrekt;}m n;}grent;}s 
n:}l;} pr;}beysh(iy)ow sit I . There is no proof incumbent 
upon him who denies a fact. 
UFactum" non dicitur quod non perseverat Ifrekt;}m 
non dis;}t;}r kwod non p;}rs;}vir;}t/. That is not called a 
"deed" which does not continue operative. That is not 
said to be done which does not last. 
Factum probandum /frekt;}m pr;}brend;}m/. Lat. In the 
law of evidence, the fact to be proved; a fact which is in 
issue, and to which evidence is to be directed. 
Factum probans Ifrekt;}m prow brenz/. A probative or 
evidentiary fact; a subsidiary or connected fact tending 
to prove the principal fact in issue; a piece of circum
stantial evidence. 
Factum unius alteri noceri non debet Ifrekt;}m y;}nay;}s 
olt;}ray n;}siriy non deb;}t/. The deed of one should not 
hurt another. 
Facultas probationum non est angustanda If;}k:}ltres 
pr;}beyshiyown;}m non est rel]g;}strend;}/. The power of 
proofs [right of offering or giving testimony] is not to be 
narrowed. 
Facultative compensation Ifrek;}lteyt;}v komp;}n
seysh;}n/. That which operates by the will of the par
ties, when one of them removes an obstacle preventing 
compensation, resulting from the dispositions of the law. 
Facultative reinsurance Ifrek;}lteyt;}v riy;}nshur;}ns/. 
Under type designated "facultative", the reinsurer has 
the option of accepting the tendered part of the original 
insurer's risk. Lincoln Nat. Life Ins. Co. v. State Tax 
Commission, 196 Miss. 82, 16 So.2d 369. 
Faculties Ifrek;}ltiyz/. Abilities; powers; capabilities. 
In the law of divorce, the capability of the husband to 
render a support to the wife in the form of alimony, 
whether temporary or permanent, including not onl y his 
tangible property, but also his income and his ability to 
earn money. See Allegation of faculties. 
Faculties, Court of. In English ecclesiastical law, a 
jurisdiction or tribunal belonging to the archbishop. It

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FACULTIES, COURT OF 
does not hold pleas in any suits, but creates rights to 
pews, monuments, and particular places, and 
modes of burial. It has also various powers under 25 
Hen. VIII, c. 21, in granting licenses of different descrip
tions, as a license to marry, a faculty to erect an organ 
in a parish church, to level a church-yard, to remove 
bodies previously buried. Faculties are also granted by 
Consistory Courts. 
Faculties, Master of the. An official in the archdiocese 
of Canterbury who is head of the Court of Faculties. See 
Arches Court. 
Faculty. Ability; power; capability. Teaching staff of 
school. See also Faculties. 
Faderfium Ifad;}rfiy;}m/. In old English law, a marriage 
gift coming from the father or brother of the bride. 
Fade the game. Means that spectators of a game of 
"craps" bet on the success of actual participants. Sulli
van v. State, 146 Tex.Cr.R. 79, 171 S.W.2d 353. 
Feeder-feoh Ifad;}rfiy/. In old English law, the portion 
brought by a wife to her husband, and which reverted to 
a widow, in case the heir of her deceased husband 
refused his consent to her second marriage; i.e., it 
reverted to her family in case she returned to them. 
Feesting-men Ifrestil]men/. Approved men who were 
strong-armed; habentes homines or rich men, men of 
substance; pledges or bondsmen, who, by Saxon custom, 
were bound to answer for each other's good behavior. 
Faggot. A badge worn in early times by persons who 
had recanted and abjured what was then adjudged to be 
heresy, as an emblem of what they had merited. 
Faggot vote. A term applied in England to votes manu
factured by nominally transferring land to persons oth
erwise disqualified from voting for members of par
liament. A faggot vote occurred where a man was 
formally possessed of a right to vote for members of 
parliament, without possessing the substance which the 
vote should represent; as if he was enabled to buy a 
property, and at the same moment mortgage it to its full 
value, for the mere sake of the vote. 
Faida lfayd;}/. In Saxon law, malice; open and deadly 
hostility; deadly feud. The word designated the enmity 
between the family of a murdered man and that of his 
murderer, which was recognized, among the Teutonic 
peoples, as justification for vengeance taken by any one 
of the former upon any one of the latter. 
Fail. Fault, negligence, or refusal. Fall short; be unsuc
cessful or deficient. Fading health. See Extremis. 
Fail also means: involuntarily to fall short of success 
or the attainment of one's purpose; to become insolvent 
and unable to meet one's obligations as they mature; to 
become or be found deficient or wanting; to keep or 
cease from an appointed, proper, expected, or required 
action, Romero v. Department of Public Works, 17 
Cal.2d 189, 109 P.2d 662, 665; to lapse, as a legacy 
which has never vested or taken effect; to leave unper
formed; to omit; to neglect; to be wanting in action. 
See also Failure; Lapse. 
594 
Failing circumstances. Insolvency, that is, the lack of 
sufficient assets to pay one's debts as they become due. 
A person (or a corporation or institution) is said to be in 
failing circumstances when he is about to fail, that is, 
when he is actually insolvent and is acting in contem
plation of giving up his business because he is unable to 
carry it on. 
A bank is in "failing circumstances" when, from any 
cause, it is unable to pay its debts in the ordinary or 
usual course of business, Sanders v. Owens, Mo.App., 47 
S.W.2d 132, 134; when it is in a state of uncertainty as 
to whether it will be able to sustain itself, depending on 
favorable or unfavorable contingencies, over which its 
officers have no control. Graf v. Allen, 230 Mo.App. 
721, 74 S.W.2d 61, 66. See also Ban kruptcy; Failure to 
meet obligations. 
Failing company. Doctrine which makes the Clayton 
Act section on the acquisition of a competitor's assets 
inapplicable to the acquisition of a competitor which is 
in such financial straits that termination of the enter
prise seems inevitable. Erie Sand & Gravel Co. v. 
F.T.C., C.A., 291 F.2d 279, 280. In order for this doc
trine to be applicable, to permit a corporate merger or 
acquisition otherwise proscribed under the Clayton Act, 
it must be demonstrated that the failing company was 
bankrupt or on the brink of bankruptcy. U.S. v. Reed 
Roller Bit Co., D.C.Okl., 274 F.Supp. 573, 584. 
Faillite Ifayiyt/. In French law, bankruptcy; failure; 
the situation of a debtor who finds himself unable to 
fulfill his engagements. 
Failure. Abandonment or defeat. Failure of duty or 
obligation. Lapse. Deficiency, want, or lack; ineffectu
alness; inefficiency as measured by some legal standard; 
an unsuccessful attempt. See also Fail; Lapse. 
Failure of consideration. As applied to notes, con
tracts, conveyances, etc., this term does not necessarily 
mean a want of consideration, but implies that a consid
eration, originally existing and good, has since become 
worthless or has ceased to exist or been extinguished, 
partially or entirely. It means that sufficient considera
tion was contemplated by the parties at time contract 
was entered into, but either on account of some innate 
defect in the thing to be given or nonperformance in 
whole or in part of that which the promisee agreed to do 
or forbear nothing of value can be or is received by tha 
promisee. Holcomb v. Long Beach Inv. Co., 129 Cal. 
App. 285, 19 P.2d 31, 36. Such consists of neglect, 
refusal, or failure of one of the parties to perform or 
furnish agreed-upon consideration: Royal Typewriter 
Co., a Div. of Litton Business Systems, Inc. v. Xerograph
ic Supplies Corp., C.A.Fla., 719 F.2d 1092, 1107. 
Failure of evidence. See Failure of proof. 
Failure of good behavior. As enumerated in statute as 
ground for removal of a civil service employee, means 
behavior contrary to recognized standards of propriety 
and morality, misconduct or wrong conduct. State ex 
reI. Ashbaugh v. Bahr, 68 Ohio App. 308, 40 N.E.2d 677, 
680, 682.

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595 
Failure of issue. Dying without children. The failure 
at a fixed time, or the total extinction, of issue to take 
an estate limited over by an executory devise. A defi
nite failure of issue is when a precise time is fixed by 
the will for the failure of issue, as in the case where 
there is a devise to one, but if he dies without issue or 
lawful issue living at the time of his death, etc. An 
indefinite failure of issue is the period when the issue or 
descendants of the first taker shall become extinct, and 
when there is no longer any issue of the issue of the 
grantee, without reference to any particular time or any 
particular event. See also Dying without issue. 
Failure of justice. The defeat of a particular right, or 
the failure of reparation for a particular wrong, from 
the lack or inadequacy of a legal remedy for the enforce
ment of the one or the redress of the other. The term is 
also colloquially applied to the miscarriage of justice 
which occurs when the result of a trial is so palpably 
wrong as to shock the moral sense. See also Miscarriage 
of justice. 
Failure of proof. Inability or failure to prove the cause 
of action or defense in its entire scope and meaning. 
Breslin-Griffitt Carpet Co. v. Asadorian, Mo.App., 145 
S.W.2d 494, 496. Where evidence is such as would 
support either of two contradictory inf erences, or pre
sumptions, respecting the ultimate facts, there is a "fail
ure of proof'. Muesenfechter v. St. Louis Car Co., 
Mo.App., 139 S.W.2d 1102, 1106. See Directed verdict; 
Failure to state cause of action; Non obstante veredicto; 
Sum mary judgment. 
Failure of record. Failure of the defendant to produce 
a record which he has alleged and relied on in his plea. 
Failure of title. The inability or failure of a vendor to 
make good title to the whole or a part of the property 
which he has contracted to sell. See also Cloud on title; 
Curing title; Marketable title. 
Failure of trust. The lapsing or nonefficiency of a 
proposed trust, by reason of the defect or insufficiency of 
the deed or instrument creating it, or on account of 
illegality, indefiniteness, or other legal impediment. 
Failure otherwise than upon merits. Phrase imports 
some action by court by which plaintiff is defeated 
without a trial upon the merits; e.g. judgment on plead
ings, summary judgment. 
Failure to bargain collectively. An employer's refusal 
to discuss with union, as employees' bargaining agency, 
questions involving conditions of employment and inter
pretation of contract constitutes a "failure to bargain 
collectively" with union. Rapid Roller Co. v. National 
Labor Relations Board, C.C.A.7, 126 F.2d 452, 459. 
Failure to make delivery. Misdelivery or nondelivery. 
This phrase is fully adequate to cover all cases where 
delivery has not been made as required. Georgia, F. & 
A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 
541, 543, 60 L.Ed. 948. 
Failure to meet obligations. Inability or failure to pay 
debts as due. For example, bank's failure to pay deposi
tors on demand constitutes "failure to meet obligations" 
FAIR 
in mo st cases. Where bank closed its doors and ceased 
to transact business or make transfers of capital stock, 
and thereafter ordinary deposits could not be drawn out 
and checks in process of collection were dishonored, 
returned unpaid, was "failure to meet obligations". 
State of Ohio ex reI. Squire v. Union Trust Co. of 
Pittsburgh, 137 Pa.Super. 75, 8 A.2d 476, 480. See also 
Ban kruptcy; Failing circumstances; Insolvency. 
Failure to perform. As regards reciprocal promises, 
allegation of defendant's "failure to perform" when de
manded is equivalent to allegation of "refusal to per
form," unless performance by plaintiff is condition 
precedent to cause of action. Brooks v. Scoville, 81 
Utah 163, 17 P.2d 218, 220. 
Failure to state cause of action. Failure of the plain
tiff to allege sufficient facts in the complaint to main
tain action. In other words, even if the plaintiff proved 
all the facts alleged in the complaint, the facts would 
not establish a cause of action entitling the plaintiff to 
recover against the defendant. The motion to dismiss 
for failure to state a cause of action is sometimes re
ferred to as (a) a demurrer (e.g. California) or (b) a 
failure to state a claim upon which relief can be granted. 
Fed.R.Civ.P. 12(b). See also Directed verdict; Summary 
judgment. 
Failure to testify. In a criminal trial, defendant is not 
required to testify and such failure may not be com
mented on by judge or prosecution because of protection 
of Fifth Amendment, U.S .Const. Griffin v. California, 
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. See also 
Self-incrimination. 
Faint (or feigned) action. In old English practice, an 
action was so called where the party bringing it had no 
title to recover, although the words of the writ were 
true. See also Feigned action. 
Faint pleader. A fraudulent, false, or collusive manner 
of pleading to the deception of a third person. 
Fair. Having the qualities of impartiality and honesty; 
free from prejudice, favoritism, and self-interest. Just; 
equitable; even-handed; equal, as between conflicting 
interests. See also Equitable; Reasonable. 
A gathering of buyers and sellers for purposes of 
exhibiting and sale of goods; usually accompanied by 
amusements, contests, entertainment, and the like. 
In England, a greater species of market; a privileged 
market. It is an incorporeal hereditament, granted by 
royal patent, or established by prescription presupposing 
a grant from the crown. A public mart or place of 
buying or selling. 1 Bl.Comm. 274. In the earlier 
English law, the franchise to hold a fair conferred cer
tain important privileges; and fairs, as legally recog
nized institutions, possessed distinctive legal characteris
tics. Most of these privileges and characteristics, how
ever, are now obsolete. In America, fairs, in the ancient 
technical sense, are unknown, and, in the modern and 
popular sense, they are entirely voluntary and nonlegal, 
and transactions arising in or in connection with them 
are subject to the ordinary rules governing sales, etc.

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FAIR AND IMPARTIAL JURY 
Fair and impartial jury. Jury chosen to hear evidence 
and render verdict without any flxed opinion concerning 
the guilt, innocence or liability of defendant. Means 
that every member of the jury must be a fair and 
impartial juror. City of San Antonio v. McKenzie Const. 
Co., 136 Tex. 315, 150 S.W.2d 989, 993. Denotes jurors 
who are not only fair and impartial, but also qualifled. 
Boca Teeca Corp. v. Palm Beach County, Fla.App., 291 
So.2d 110, 111. See Fair and impartial trial; Im partial jury. 
Fair and impartial trial. A hearing by an impartial 
and disinterested tribunal; a proceeding which hears 
before it condemns, which proceeds upon inquiry, and 
renders judgment only after trial consideration of evi
dence and facts as a whole. A basic constitutional 
guarantee contained implicitly in the Due Process 
Clause of Fourteenth A:mendment, U.S. Constitution. 
One where accused's legal rights are safeguarded and 
respected. Raney v. Commonwealth, 287 Ky. 492, 153 
S.W.2d 935, 937, 938. A fair and impartial trial by a 
jury of one's peers contemplates counsel to look after 
one's defense, compulsory attendance of witnesses, if 
need be, and a reasonable time in the light of all 
prevailing circumstances to investigate, properly pre
pare, and present the defense. One wherein defendant 
is permitted to be represented by counsel and neither 
witnesses nor counsel are intimidated. One wherein no 
undue advantage is taken by the district attorney or any 
one else. People v. Nationwide News Service, 172 Misc. 
752, 16 N.Y.S.2d 277, 279. One wherein witnesses of 
litigants are permitted to testify under rules of court 
within proper bounds of judicial discretion, and under 
law governing testimony of witnesses with right in par
ties to testify, if qualified, and of counsel to be heard. It 
requires that the jury chosen to sit in judgment shall 
have no flxed opinion concerning the guilt or innocence 
of one on trial. Lane v. Warden, Md. Penitentiary, 
C.A.Md., 320 F.2d 179, 185. There must not only be fair 
and impartial jury, and learned and upright judge, but 
there should be atmosphere of calm in which witnesses 
can deliver their testimony without fear and intimi
dation, in which attorneys can assert accused's rights 
freely and fully, and in which the truth may be received 
and given credence without fear of violence. Raney v. 
Commonwealth, 287 Ky. 492, 153 S.W.2d 935, 937, 938. 
See also Im partial jury. 
Fair and proper legal assessment. Such as places the 
value of property on a fair, equal, and uniform basis 
with other property of like character and value through
out the county and state. See also Equalization. 
Fair and reasonable value. See Fair market value; Fair 
value; Just compensation. 
Fair and valuable consideration. One which is a 
substantial compensation for the property conveyed, or 
which is reasonable, in view of the surrounding circum
stances and conditions and market value of comparable 
properties in same vicinity, in contradistinction to an 
inadequate consideration. Lucas v. Coker, 189 Okl. 95, 
113 P.2d 589, 590. See also Adequate Consideration; Fair 
596 
consideration; Fair market value; Fair value; Just com
pensation. 
Fair averaging. In tax assessment, means average, 
typical of amount and price of goods acquired over 
twelve month period. Sears Roebuck & Co. v. State Tax 
Commission, 214 Md. 550, 136 A.2d 567. 
Fair cash market value. Terms "cash market value", 
"fair market value", "reasonable market value" or "fair 
cash market value" are substantially synonymous. Fort 
Worth & D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d 
570, 572. 
Fair cash value. The phrase is practically synonymous 
with "reasonable value," "fair market value," and "actu
al cash value," meaning the fair or reasonable cash 
price for which the property can be sold on the market. 
Fair cash value for property tax purposes is interpreted 
as meaning "fair market value" or price that property 
would bring at a sale where both parties are willing, 
ready and able to do business and under no duress to do 
so. Consolidation Coal Co. v. Property Tax Appeal Bd. 
of Dept. of Local Government Affairs, 29 Ill.App.3d 465, 
331 N.E.2d 122, 126. The price which someone will pay 
for it in open market. See also Fair market value; Fair 
value; Just compensation. 
Fair comment. A form of qualified privilege applied to 
news media publications relating to discussion of mat
ters which are of legitimate concern to the community 
as a whole because they materially affect the interests 
of all the community. Phoenix Newspapers, Inc. v. 
Church, 103 Ariz. 582, 447 P.2d 840, 853. A term used 
in the defense of libel actions, applying to statements 
made by a writer (e.g., news media) in an honest belief of 
their truth, relating to offlcial acts, even though the 
statements are not true in fact. 
Defense of "fair comment" is not destroyed by circum
stance that jury may believe that the comment is logi
cally unsound, but it suffices that a reasonable person 
may honestly entertain such opinion, on facts found. 
Cohalan v. New York Tribune, 172 Misc. 20, 15 N.Y.S.2d 
58, 60, 61. Fair comment must be based on facts truly 
stated, must not contain imputations of corrupt or dis
honorable motives except as warranted by the facts, and 
must be honest expression of writer's real opinion. Hall 
v. Binghamton Press Co., 263 App.Div. 403, 33 N.Y.S.2d 
840, 848. See also Fairness or equal time doctrine. 
Fair competition. Open, equitable, just competition, 
which is fair as between competitors and as between any 
of them and his customers. See Antitrust acts; Clayton 
Act; Price-fixing; Sherman Antitrust Act. 
Fair consideration. A fair equivalent. One which, 
under all the circumstances, is honest, reasonable, and 
free from suspicion. Full and adequate consideration. 
Good-faith satisfaction of an antecedent debt. One 
which fairly represents the value of the property trans
ferred. One which is not disproportionate to the value 
of the property conveyed. A term of fraudulent convey
ance law describing whatever is given in exchange for a 
conveyance of debtor's property whenever the exchange 
involves property or other things having substantially

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equivalent values. See also Adequate consideration; Fair 
cash value; Fair market value; Fair value; Just compensa
tion. 
Fair Credit Billing Act. Federal Act designed to facili
tate settlement of billing error disputes and to make 
credit card companies more responsible for the quality 
of merchandise purchased by cardholders. 15 U.S.C.A. 
§ 1666 et seq. 
Fair Credit Reporting Acts. Federal Act. This law 
represents the first Federal regulation of the vast con
sumer reporting industry, covering all credit bureaus, 
investigative reporting companies, detective and collec
tion agencies, lenders' exchanges, and computerized in
formation reporting companies. The purpose of this Act 
is to insure that consumer reporting activities are con
ducted in a manner that is fair and equitable to the 
affected consumer, upholding his right to privacy as 
against the informational demands of others. The con
sumer is given several important rights, including the 
right to notice of reporting activities, the right to access 
to information contained in consumer reports, and the 
right to correction of erroneous information that may 
have been the basis for a denial of credit, insurance, or 
employment. 15 U.S.C.A. § 1681 et seq. See also Con
sumer reporting agency. 
State Acts. Typical state acts cover consumer's rights 
against credit investigatory agencies; prohibit reporting 
of obsolete information; require that person giving cred
it disclose to consumer that report is being obtained, and 
require reporting agency to make copy available to 
consumer. 
Fair Debt Collection Practices Act. Federal act, the 
purpose of which is to eliminate abusive debt collection 
practices by debt collectors, to insure that those debt 
collectors who refrain from using abusive debt collection 
practices are not competitively disadvantaged, and to 
promote consistent state action to protect consumers 
against debt collection abuses. This act also applies to 
debt collection practices of attorneys. 15 U.S.C.A. 
§ 1692(e). Most states also have statutes regulating 
debt collection practices. 
Fair equivalent. As used in statute providing that fair 
consideration is given for property exchanged at fair 
equivalent means value at time of conveyance. "Equiv
alent" means equal in worth or value; "fair" means 
equitable as a basis for exchange; reasonable; a fair 
value. 
Fair hearing. One in which authority is fairly exer
cised; that is, consistently with the fundamental princi
ples of justice embraced within the conception of due 
process of law. Contemplated in a fair hearing is the 
right to present evidence, to cross examine, and to have 
findings supported by evidence. See e.g. APA, 5 U.S. 
C.A. § 556. 
Statutes and regulations establish procedures to as
sure fair hearings for various types of administrative 
proceedings. For example, fair hearing of an alien's 
right to enter the United States means a hearing before 
the immigration officers in accordance with the funda-
FAIR MARKET VALUE 
mental principles that inhere in due process of law, and 
implies that alien shall not only have a fair opportunity 
to present evidence in his favor, but shall be apprised of 
the evidence against him, so that at the conclusion of 
the hearing he may be in a position to know all of the 
evidence on which the matter is to be decided; it being 
not enough that the immigration officials meant to be 
fair. 
See also Fair and impartial trial. 
Fair knowledge or skill. A reasonable degree of knowl
edge or measure of skill. 
Fair Labor Standards Act. Federal Act (1938) which 
set a minimum standard wage (periodically increased by 
later statutes) and a maximum work week of 40 hours in 
industries engaged in interstate commerce. Such Act 
also regulates hours of work, and type of work, that can 
be performed by teen-agers. The Act created the Wage 
and Hour Division in the Department of Labor. 29 
U.S.C.A. § 201 et seq. See also Child labor laws; Min i
mum wage; Wage and hour laws. 
Fairly. Equitably, honestly, impartially, reasonably. 
Looney v. Elliott, Tex.Civ.App., 52 S.W.2d 949, 952. 
Justly; rightly. With substantial correctness. "Fairly 
merchantable" conveys the idea of mediocrity in quality, 
or something just above it. See also Equitable; Fair. 
Fair market price. See Fair market value. 
Fair market value. The amount at which property 
would change hands between a willing buyer and a 
willing seller, neither being under any compUlsion to 
buy or sell and both having reasonable knowledge of the 
relevant facts. By fair market value is meant the price 
in cash, or its equivalent, that the property would have 
brought at the time of taking, considering its highest 
and most profitable use, if then offered for sale in the 
open market, in competition with other similar proper
ties at or near the location of the property taken, with a 
reasonable time allowed to find a purchaser. State, by 
Commissioner of Transp. v. Cooper Alloy Corp., 136 
N.J.Super. 560, 347 A.2d 365, 368. Fair market value is 
the price that the asset would bring by bona fide bar
gaining between well-informed buyers and sellers at the 
date of acquisition. Usually the fair market price will 
be the price at which bona fide sales have been consum
mated for assets of like type, quality, and quantity in a 
particular market at the time of acquisition. The 
amount of money which purchaser who is willing but 
not obligated to buy would pay owner who is willing but 
not obligated to sell, taking into consideration all uses to 
which the land is adapted and might in reason be 
applied. Arkansas State Highway Commission v. De
Laughter, 250 Ark. 990, 468 S.W.2d 242, 247. 
Synonymous or identical terms are: Actual cash val
ue, Stiles v. Commissioner of Internal Revenue, C.C.A. 
Fla., 69 F.2d 951, 952; actual value, Appeals of Matson, 
152 Pa.Super. 424, 33 A.2d 464, 465; cash market value, 
West Texas Hotel Co. v. City of El Paso, Tex.Civ.App., 83 
S.W.2d 772, 775; fair cash market value, Housing Au
thority of Birmingham Dist. v. Title Guarantee Loan & 
Trust Co., 243 Ala. 157, 8 So.2d 835, 837; fair cash

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FAIR MARKET VALUE 
value, Commissioner of Corporations and Taxation v. 
Boston Edison Co., 310 Mass. 674, 39 N.E.2d 584, 593; 
market value, Fort Worth & D. N. Ry. Co. v. Sugg, 
Tex.Civ.App., 68 S.W.2d 570, 572; United States v. 
3969.59 Acres of Land, D.C. ldaho, 56 F.Supp. 831, 837; 
reasonable market value, Housing Authority of Birming
ham Dist. v. Title Guarantee Loan & Trust Co., 243 Ala. 
157, 8 So.2d 835, 837; true cash value, Appeals of 
Matson, 152 Pa.Super. 424, 33 A.2d 464, 465. 
See also Fair value. 
Fairness or equal time doctrine. This doctrine imposes 
affirmative responsibilities on the broadcaster to provide 
coverage of issues of public importance which is ade
quate and which fairly reflects differing viewpoints. In 
fulfilling its "Fairness Doctrine" obligations, broadcaster 
must provide free time for the presentation of opposing 
views if a paid sponsor is unavailable and must initiate 
programming on public issues if no one else seeks to do 
so. Columbia Broadcasting System, Inc. v. Democratic 
National Committee, Dist.Col., 412 U.S. 94, 93 S.Ct. 
2080, 2089, 36 L.Ed.2d 772. Refers to section of Federal 
Communications Act which provides that major advo
cates of both sides of political and public issues should 
be given fair or equal opportunity to broadcast their 
viewpoints. 47 U.S.C.A. § 315. See also Equal Time Act. 
Fair on its face. A tax deed "fair on its face," is one 
which cannot be shown to be illegal without extraneous 
evidence. Denny v. Stevens, 52 Wyo. 253, 73 P.2d 308, 
310. A process fair on its face does not mean that it 
must appear to be perfectly regular or in all respects in 
accord with proper practice and after the most approved 
form, but that it shall apparently be process lawfully 
issued and such as the officer may lawfully serve, and a 
process is fair on its face which proceeds from a court, 
magistrate, or body having authority of law to issue 
process of that nature and which is legal in form and on 
its face contains nothing to notify or fairly apprise the 
officer that it is issued without authority. 
Fair persuasion. Argument, exhortation, or entreaty 
addressed to a person without threat of physical harm or 
economic loss, or persistent molestation or harassment 
or material and fraudulent misrepresentations. City of 
Reno v. Second Judicial District Court in and for Wash
oe County, 59 Nev. 416, 95 P.2d 994, 998. 
Fair play. Equity, justice and decency in dealings with 
another. See Equity. 
Fair pleader. See Beaupleader. 
Fair preponderance of evidence. Evidence sufficient 
to create in the minds of the triers of fact the conviction 
that the party upon whom is the burden has established 
its case. The greater and weightier evidence; the more 
convincing evidence. Belmont Hotel v. New Jersey Ti
tle Guaranty & Trust Co., 22 N.J.Misc. 261, 37 A.2d 681, 
682. Such a superiority of evidence on one side that the 
fact of its outweighing the evidence on the other side 
can be perceived if the whole evidence is fairly con
sidered. Such evidence as when weighed with that 
which is offered to oppose it, has more convincing power 
in the minds of the jury. The term conveys the idea of 
598 
something more than a preponderance. The term is not 
a technical term, but simply means that evidence which 
outweighs that which is offered to oppose it, and does 
not necessarily mean the greater number of witnesses. 
See also Preponderance of evidence. 
Fair rate of return. Amount of profits that a public 
utility is permitted to earn as determined by public 
utility commissions. Such is based on the need of the 
utility to maintain service to customers, finance expend
itures for improvements and expansion, pay dividends to 
shareholders, etc. See also Fair return on investment. 
Fair representation. Refers to the duty of a union to 
represent fairly all its members, both in the conduct of 
collective bargaining and in the enforcement of the 
resulting agreement, and to serve the interests of all 
members without hostility or discrimination toward any 
and to exercise its discretion with complete good faith 
and honesty and to avoid arbitrary conduct. Buzzard v. 
Local Lodge 1040 International Ass'n of Machinists and 
Aerospace Workers, C.A.Wash., 480 F.2d 35, 40. 
Fair return on investment. A "fair return" is to be 
largely measured by usual returns in like investments 
in the same vicinity over the same period of time. 
Natural Gas Pipeline Co. of America v. Federal Power 
Commission, C.C.A.Ill., 120 F.2d 625, 633, 634. Reason
able profit on sale or holding of investment assets. A 
fair return on value of property used and useful in 
carrying on the enterprise, performing the service or 
supplying the thing for which the rates are paid. Lubin 
v. Finkelstein, 82 N.Y.S.2d 329, 335. Term is generally 
used in reference to setting of rates for public utilities. 
See also Fair rate of return. 
Fair sale. In foreclosure and other judicial proceedings, 
this means a sale conducted with fairness and impartial
ity as respects the rights and interests of the parties 
affected. A sale at a price sufficient to warrant confir
mation or approval when it is required. 
Fair trade laws. State statutes which permit manufac
turers or distributors of namebrand goods to fix mini
mum retail prices. Following a series of court decisions 
striking down such statutes, Congress in 1976 repealed 
such statutes. 
Fair trial. See Fair and impartial trial. 
Fair use doctrine. A privilege in others than the owner 
of a copyright to use the copyrighted material in a 
reasonable manner without the owner's consent, not
withstanding the monopoly granted to the owner. To 
determine whether fair use has been made of copyright
ed material, the nature and objects of the selections 
made, the quantity and value of material used and 
extent to which the use may diminish the value of the 
original work must be considered. Rosemont Enterpris
es, Inc. v. Random House, Inc., D.C.N.Y., 256 F.Supp. 55, 
65, 66. 
Fair use involves a balancing process by which a 
complex of variables determine whether other interests 
should override the rights of creators. The Copyright 
Act explicitly identifies four interests: (1) the purpose

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and character of the use, including its commercial na
ture; (2) the nature of the copyrighted work; (3) the 
proportion that was "taken"; and (4) the economic im
pact of the "taking." 17 U.S.C.A. § 107. 
Fair value. Present market value; such sum as the 
property will sell for to a purchaser desiring to buy, the 
owner wishing to sell; such a price as a capable and 
diligent business man could presently obtain from the 
property after conferring with those accustomed to buy 
such property; the amount the property would bring at 
a sale on execution shown to have been in all respects 
fair and reasonable; the fair market value of the proper
ty as between one who wants to purchase and one who 
wants to sell the property. Where no definite market 
value can be established and expert testimony must be 
relied on, fair valuation is the amount which the proper
ty ought to give to a going concern as a fair return, if 
sold to some one who is willing to purchase under 
ordinary selling conditions. In determining "fair valua
tion" of property, court should consider all elements 
entering into the intrinsic value, as well as the selling 
value, and also the earning power of the property. In re 
Gibson Hotels, D.C.W.Va., 24 F.Supp. 859, 863. In de
termining depreciation, "fair value" implies considera
tion of all factors material in negotiating sale and pur
chase of property, such as wear, decay, deterioration, 
obsolescence, inadequacy, and redundancy. Idaho Pow
er Co. v. Thompson, D.C.l daho, 19 F.2d 547, 566. Price 
which a seller, willing but not compelled to sell, would 
take, and a purchaser, willing but not compelled to buy, 
would pay. Price which buyers of the class which would 
be interested in buying property would be justified in 
paying for it. In re Crane's Estate, 344 Pa. 141, 23 A.2d 
851, 855. 
Within provision of business corporation act for deter
mination of fair value of dissenting stockholder's shares, 
"fair value" means intrinsic value. Santee Oil Co., Inc. 
v. Cox, 265 S.C. 270, 217 S.E.2d 789, 793. Among 
elements to be considered in arriving at "fair value" or 
"fair cash value" of stock of a stockholder who dissents 
from a sale of corporate assets are its market value, net 
asset value, investment value, and earning capacity. 
Lucas v. Pembroke Water Co., 205 Va. 84, 135 S.E.2d 
147, 150. 
"Actual value," "market value," "fair value," and the 
like, are commonly used as convertible terms. See also 
Fair market value. 
Fait ffeytf. L. Fr. Anything done. A deed; act; fact. 
A deed lawfully executed. 
Fait accompli. Fact or deed accomplished, presumably 
irreversible. 
Fait enrolle ffeyt onr6wl l. A deed enrolled, as a bar
gain and sale of freeholds. 
Faith. Confidence; credit; reliance. Thus, an act may 
be said to be done "on the faith" of certain representa
tions. 
Belief; credence; trust. Thus, the Constitution pro
vides that "full faith and credit" shall be given to the 
judgments of each state in the courts of the others. 
FALCIDIAN LAW 
Purpose; intent; sincerity; state of knowledge or de
sign. This is the meaning of the word in the phrases 
"good faith" and "bad faith." See Good faith. 
Faithful. Honest; loyal; trustworthy; reliable; allegi
ant; conscientious. Wright v. Fidelity & Deposit Co. of 
Maryland, 176 Ok!. 274, 54 P.2d 1084, 1087. As used in 
the rule that executors must be "faithful," means that 
they must act in good faith. In re McCafferty's Will, 
147 Misc. 179, 264 N.Y.S. 38. See also Good faith. 
Faithfully. Conscientious diligence or faithfulness in 
meeting obligations, or just regard of adherence to duty, 
or due observance of undertaking of contract. Common
wealth v. Polk, 256 Ky. 100, 75 S.W.2d 761 , 765. Dili
gently, and without unnecessary delay. Truthfully, sin
cerely, accurately. 
As used in bonds of public and private officers, this 
term imports not only honesty, but also a punctilious 
discharge of all the duties of the office, requiring compe
tence, diligence, and attention, without any malfeasance 
or nonfeasance, aside from mere mistakes. 
Fait juridique ffey zhyuridiykf. In French law, a juridi
cal fact. One of the factors or elements constitutive of 
an obligation. 
Faitours ffeyt�rzf. Idle persons; idle livers; vagabonds. 
Fake. To make or construct falsely. A "faked alibi" is a 
made, manufactured, or false alibi. Something that is 
not what it purports to be; counterfeit. An imposter. 
See Counterfeit; Forgery. 
Faker. A swindler; an imposter. 
Fakir Ifeykirlfeyk�rf. A term applied among the Mo
hammedans to a kind of religious ascetic or beggar, 
whose claim is that he "is in need of mercy, and poor in 
the sight of God, rather than in need of worldly assist
ance." 
Sometimes spelled faqueer or fakeer. It is commonly 
used to designate a person engaged in some useless or 
dishonest business. Fake is also so used and also to 
designate the quality of such business. A street peddler 
who disposes of worthless wares, or of any goods above 
their value, by means of any false representation, trick, 
device, lottery, or game of chance. 
Falcarious. See Falsarius (or falcarious). 
Falcidia Ifolsidiy�ffrel ° f. In Spanish law, the Falcidian 
portion; the portion of an inheritance which could not 
be legally bequeathed away from the heir, viz., one
fourth. 
Falcidian law ffolsidiy�n 16lfrelo f. In Roman law, a law 
on the subject of testamentary disposition. It was enact
ed by the people during the reign of Augustus, in the 
year of Rome 714, on the proposition of the tribune 
Falcidius. By this law, the testator's right to burden his 
estate with legacies was subjected to an important re
striction. It prescribed that no one could bequeath more 
than three-fourths of his property in legacies, and that 
the heir should have at least one-fourth of the estate, 
and that, should the testator violate this prescript, the

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FALCIDIAN LAW 
heir may have the right to make a proportional deduc
tion from each legatee, so far as necessary. 
A similar principle exists in Louisiana. See Legitime. 
In some of the states the statutes authorizing bequests 
and devises to charitable corporations limit the amount 
which a testator may give, to a certain fraction of his 
estate. 
Falcidian portion Ifolsidiy:m porsh:m/frelo I. That por
tion of a testator's estate which, by the Falcidian law, 
was required to be left to the heir, amounting to at least 
one-fourth. See also Legitime. 
Faldworth. In Saxon law, a person reckoned old enough 
to become a member of the decennary, and so subject to 
the law of frank-pledge. 
Falk-Iand. See Folc-Iand. 
Fall. One of the four seasons of the year, embracing, in 
the Northern Hemisphere, the three months commenc
ing with the 21st of September and terminating with the 
20th of December. Autumn. 
To come within limits, scope, or jurisdiction of some
thing. To decrease in value. To recede, as a depression 
or recession in the economy. 
Fallo /fa(l)yow/. In Spanish law, the final decree or 
judgment given in a controversy at law. 
Fallow Ifrelow/. Barren or unproductive. May v. Amer
ican Trust Co., 135 Cal.App. 385, 27 P.2d 101. Not 
pregnant. 
Fallow-land. Land plowed, but not sown, and left uncul
tivated for a time after successive crops. Land tilled, 
but left unseeded during the growing season. 
Fallum. In old English law, an unexplained term for 
some particular kind of land. 
Falsa demonstratio /fols� dem�nstreysh(iy)ow I. In the 
civil law, false designation; erroneous description of a 
person or thing in a written instrument. 
Falsa demonstratione legatum non perimi Ifols� 
dem�nstreyshiyowniy l�geyt�m non pehr�may I. A be
quest is not rendered void by an erroneous description. 
Falsa demonstratio non nocet, cum de corpore (per
sona) constat /fols� dem�nstreysh(iy)ow non nos�t, k�m 
diy korp�riy (p�rsown�) konst�t/. False description does 
not injure or vitiate, provided the thing or person in
tended has once been sufficiently described. Mere false 
description does not make an instrument inoperative. 
Falsa grammatica non vitiat concessionem /fols� 
gr�mret�k� non vishiy�t k�nses(h)iyown�m/. False or 
bad grammar does not vitiate a grant. Neither false 
Latin nor false English will make a deed void when the 
intent of the parties doth plainly appear. 
Falsa moneta If6ls� m�niyt�/. In the civil law, false or 
counterfeit money. 
Falsa orthograpbia non vitiat chartam, concession
em Ifols� orO�grrefiy� non vishiy�t kart�m, °k�nses(h)iy
own�m/. False spelling does not vitiate a deed. 
600 
Falsare Ifolseriy/. In old English law, to counterfeit. 
Quia falsavit sigillum, because he counterfeited the seal. 
Falsarius (or falcarious) Ifolseriy�s/. A counterfeiter. 
False. Not true. Term also means: artificial; counter
feit; assumed or designed to deceive, Sentinel Life Ins. 
Co. v. Blackmer, C.C.A.Colo., 77 F.2d 347, 352; contrary 
to fact, In re Davis, 349 Pa. 651, 37 A.2d 498, 499; 
deceitful; deliberately and knowingly false, People v. 
Mangan, 140 Misc. 783, 252 N.Y.S. 44, 52; designedly 
untrue, W. T. Rawleigh Co. v. Brantley, 97 Miss. 244, 19 
So.2d 808, 811; erroneous, Gilbert v. Inter-Ocean Casu
alty Co. of Cincinnati, Ohio, 41 N.M. 463, 71 P.2d 56, 59; 
hypocritical; sham; feigned, incorrect, State v. Arnett, 
338 Mo. 907, 92 S.W.2d 897, 900; intentionally untrue, 
Com. v. Kraatz, 2 Mass.App.Ct. 196, 310 N.E.2d 368, 376; 
not according to truth or reality, State v. Arnett, 338 
Mo. 907, 92 S.W.2d 897, 900; not genuine or real; 
uttering falsehood; unveracious; given to deceit; dis
honest, Wilensky v. Goodyear Tire & Rubber Co., C.C.A. 
Mass., 67 F.2d 389, 390; wilfully and intentionally un
true, In re Brown, D.C.N.Y., 37 F.Supp. 526, 527; North 
American Accident Ins. Co. v. Tebbs, C.C.A.U tah, 107 
F.2d 853, 855. 
The word "false" has two distinct and well-recognized 
meanings: (1) intentionally or knowingly or negligently 
untrue; (2) untrue by mistake or accident, or honestly 
after the exercise of reasonable care. Metropolitan Life 
Ins. Co. v. Adams, D.C.Mun.App., 37 A.2d 345, 350. A 
thing is called "false" when it is done, or made, with 
knowledge, actual or constructive, that it is untrue or 
illegal, or is said to be done falsely when the meaning is 
that the party is in fault for its error. A statement 
(including a statement in a claim or document), is 
"false" if it was untrue by the person making it, or 
causing it to be made. 
See also Alteration; Bogus; Counterfeit; Falsely; False 
representation; Falsify; Forgery; Fraud; Misrepresenta
tion; Perjury. 
False action. See Feigned action. 
False and fraudulent. To amount to actionable "false 
and fraudulent representations", they must have been 
as to existing fact or known by one making them, from 
his superior knowledge, to have been untrue when 
made. Burlison v. Weis, Mo.App., 152 S.W.2d 201, 203. 
See False representation; Fraud. 
False answer. In pleading, a sham answer; one which 
is false in the sense of being a mere pretense set up in 
bad faith and without color of fact. Such answer may 
be ordered stricken on motion. Fed.R. Civil P. 12(f). 
False arrest. A species of false imprisonment, consisting 
of the detention of a person without his or her consent 
and without lawful authority. Reams v. City of Tucson, 
App., 145 Ariz. 340, 701 P.2d 598, 601. Such arrest 
consists in unlawful restraint of an individual's personal 
liberty or freedom of locomotion. Johnson v. Jackson, 
43 Ill.App.2d 251, 193 N.E.2d 485, 489. An arrest with
out proper legal authority is a false arrest and because 
an arrest restrains the liberty of a person it is also false

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imprisonment. The gist of the tort is protection of the 
personal interest in freedom from restraint of move
ment. Neither ill will nor malice are elements of the 
tort, but if these elements are shown, punitive damages 
may be awarded in addition to compensatory or nominal 
damages. See also Imprisonment (False imprisonment), 
Malicious prosecution. 
False character. In England, the offense of personating 
the master or mistress of a servant, or any representa
tive of such master or mistress, and giving a false 
character to the servant. 
False checks. Off ense of obtaining money by means 
and use of a check upon a bank, in which the drawer at 
the time had no funds or credit with which to meet the 
same, and which he had no reason to believe would 
honor such check upon presentation at said bank for 
payment. See also Kiting. 
False claim. A statement or a claim which is not true. 
False Claims Act. Federal act providing for civil and 
criminal penalties against individuals who knowingly 
present or cause to be presented to the government a 
false claim or bill, or deliver less property to the govern
ment than what is billed for, or make or use a false 
record to decrease an obligation to the government. 
The statute provides for enforcement of its provisions 
either by the U.S. Attorney General or in "qui tam" 
actions by private persons. 18 U.S.C.A. §§ 286, 287; 31 
U.S.C.A. §§ 3729-3733. See also Qui tam action. 
Falsedad /faIs�yaad/. In Spanish law, falsity; an alter
ation of the truth; deception; fraud. 
False decretals. A collection of canon law, dated about 
the middle of the 9th century, probably by a Frankish 
ecclesiastic who called himself Isadon. It continued to 
be the chief repertory of the canon law till the 15th 
century when its untrustworthy nature was demonstrat
ed. 
False demonstration. An erroneous description of a 
person or thing in a written instrument. Where de
scription of person or thing in will is partly true and 
partly false, if part which is true describes subject or 
object of gift with sufficient certainty, untrue part may 
be rejected and gift sustained, under doctrine of "false 
demonstration ." In re Heins' Estate, 132 Cal.App. 131, 
22 P.2d 549. 
False entry. An untrue statement of items of account 
by written words, figures, or marks. One making an 
original false entry makes a false entry in every book 
which is made up in regular course from the entry or 
entries from the original book of entry. 
An entry in books of a bank or trust company which is 
intentionally made to represent what is not true or does 
not exist, with intent either to deceive its officers or a 
bank examiner or to defraud the bank or trust company. 
Agnew v. U. S., 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624. 
False fact. In the law of evidence, a feigned, simulated, 
or fabricated fact; a fact not founded in truth, but 
FALSELY 
existing only in assertion; the deceitful semblance of a 
fact. See Fabricated fact; Perjury. 
Falsehood. A statement or assertion known to be un
true, and intended to deceive. A willful act or declara
tion contrary to the truth. It is committed either by the 
wilful act of the party, or by dissimulation, or by words. 
A fabrication. Werner v. Southern Cal. Associated 
Newspapers, Cal.App., 206 P.2d 952, 961. See Perjury. 
False impersonation. The criminal offense of falsely 
representing some other person and acting in the char
acter thus unlawfully assumed, in order to deceive oth
ers, and thereby gain some profit or advantage, or enjoy 
some right or privilege belonging to the one so personat
ed, or subject him to some expense, charge, or liability. 
To impersonate another falsely, and in such assumed 
character to do any act whereby any benefit might 
accrue to the offender or to another person. People v. 
Horkans, 109 Colo. 177, 123 P.2d 824. See also Im per
sonation; Personate. 
False implication libel. Type of libel action by public 
figure against news media alleging that news article 
created a false impression or implication even though 
each statement, taken separately, was true. Price v. 
Viking Penguin, 881 F.2d 1426, 1432. 
False imprisonment. See False arrest; Imp risonment; 
Probable cause. 
False instrument. A counterfeit; one made in the simi
litude of a genuine instrument and purporting on its 
face to be such. See also Counterfeit; False making; 
Forgery. 
False judgment. In old English law, a writ which lay 
when a false judgment had been pronounced in a court 
not of record, as a county court, court baron, etc. 
In old French law, the defeated party in a suit had the 
privilege of accusing the judges of pronouncing a false or 
corrupt judgment, whereupon the issue was determined 
by his challenging them to the combat or duellum. This 
was called the "appeal of false judgment." 
False Latin. When law proceedings were written in 
Latin, if a word were significant though not good Latin, 
then an indictment, declaration, or fine should not be 
made void by it; but if the word were not Latin, nor 
allowed by the law, and it were in a material point, it 
made the whole void. 
False light privacy. Where a privacy action is brought 
against the media because a report has been published 
that is false, the privacy plaintiff will be required to 
show, if the report was newsworthy, that the publication 
was made with actual malice. Time, Inc. v. Hill, 385 
U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456. 
False lights and signals. Lights and signals falsely and 
maliciously displayed for the purpose of bringing a ves
sel into danger. 
Falsely. In a false manner, erroneously, not truly, perfi
diously or treacherously. Dombroski v. Metropolitan 
Life Ins. Co., 126 N.J.L. 545, 19 A.2d 678, 680. Know
ingly affirming without probable cause. 
I

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FALSELY 
The word "falsely", particularly in a criminal statute, 
suggests something more than a mere untruth and in
cludes perfidiously or treacherously or with intent to 
defraud. United States v. Achtner, C.C.A.N.Y., 144 F.2d 
49, 52. Commonly used in the sense of designedly 
untrue and deceitful, and as implying an intention to 
perpetrate some treachery or fraud. As applied to mak
ing or altering a writing in order to make it forgery, 
implies that the paper or writing is not genuine; that in 
itself it is false or counterfeit. 
See also Counterfeit; False; Forgery. 
False making. An essential element of forgery, where 
material alteration is not involved. Term has reference 
to manner in. which writing is made or executed rather 
than to its substance or effect. A falsely made instru
ment is one that is fictitious, not genuine, or in some 
material particular something other than it purports to 
be and without regard to truth or falsity of facts stated 
therein. Wright v. U. S., C.A.Ariz., 172 F.2d 310, 311. 
See also Counterfeit; Forgery. 
False misrepresentation. See False representation. 
False news. Spreading false news, whereby discord may 
grow between the queen of England and her people, or 
the great men of the realm, or which may produce other 
mischiefs, seems to have been a misdemeanor, under St. 
3 Edw. I, c. 34. 
False oath. To defeat discharge in bankruptcy "false 
oath" must contain all the elements involved in "perju
ry" at common law, namely, an intentional untruth in 
matter material to a material issue. It must have been 
knowingly and fraudulently made. In re Stone, D.C. 
N.H., 52 F.2d 639, 641. See also False swearing; Perjury. 
False personation. See False impersonation. 
False plea. See Sham pleading. 
False pretenses. Illegally obtaining money, goods, or 
merchandise from another by fraud or misrepresenta
tion. As a statutory crime, although defined in slightly 
different ways in the various jurisdictions, consists gen
erally of these elements: (1) an intent to defraud; (2) the 
use of false pretenses or representations regarding any 
existing facts; and (3) the accomplishment of the intend
ed fraud by means of such false pretenses. People v. 
Johnson, 28 Mich.App. 10, 183 N.W.2d 813, 815, 816. 
Such representation may be implied from conduct or 
may consist of concealment or non-disclosure where 
there is duty to speak, and may consist of any acts, 
work, symbol or token calculated and intended to de
ceive. Bright v. Sheriff, Washoe County, 90 Nev. 168, 
521 P.2d 371, 373. 
Other definitions of "false pretenses" include: false 
representation of existing fact or condition by which a 
party obtains property of another; false representation 
of existing fact, whether by oral or written words or 
conduct, calculated to deceive, intended to deceive, and 
does in fact deceive, whereby one person obtains value 
from another without compensation; false representa
tion of existing or past fact calculated to induce confi
dence on part of one to whom representation is made, 
602 
and accompanied by or blended with a promise to do 
something in future, State v. Parkinson, 181 Wash. 69, 
41 P.2d 1095, 1097; false representation of existing fact, 
made with knowledge of falsity, with intent that party 
to whom it is made should act upon it, and acted upon 
by such party to his detriment; false representation of 
past or existing fact, made with knowledge of falsity, 
with intent to deceive and defraud, and which is adapted 
to deceive person to whom made. 
Under Model Penal Code § 223.3, a person is guilty of 
"theft by deception" if he purposely obtains property of 
another by deception. 
Larceny distinguished. In crime of larceny owner has 
no intention to part with his property, although he may 
intend to part with possession, while in false pretenses 
the owner does intend to part with the property but it is 
obtained from him by fraud. The intention of owner of 
property not to part with title when relinquishing pos
session of property is vital point to be determined in 
distinguishing between "larceny by fraud" and obtain
ing property by "false pretenses". Dobson v. State, 74 
Okl.Cr. 341, 126 P.2d 95, 101. 
False representation. For purposes of the common-law 
tort of fraudulent misrepresentation, such may be either 
an affirmative misrepresentation or a failure to disclose 
a material fact when a duty to disclose that fact has 
arisen. Rothenberg v. Aero Mayflower Transit Co., Inc., 
D.C.D.C., 495 F.Supp. 399, 406. To maintain an action 
for damages for "false representation," the plaintiff, in 
substance, must allege and must prove by a preponder
ance of the evidence the following elements: (1) that 
representation was made; (2) that it was false; (3) that 
the defendant knew it was false, or else made it without 
knowledge as a positive statement of known fact; (4) 
that the plaintiff believed the representation to be true; 
(5) that the plaintiff relied on and acted upon the repre
sentation; (6) that the plaintiff was thereby injured; 
and (7) the amount of the damages. See also Deceit; 
False statement; Fraud; Material fact; Reliance. 
False return. See Return. 
False statement. Statement knowingly false, or made 
recklessly without honest belief in its truth, and with 
purpose to mislead or deceive. Third Nat. Bank v. 
Schatten, C.C.A.Tenn., 81 F.2d 538, 540. An incorrect 
statement made or acquiesced in with knowledge of 
incorrectness or with reckless indifference to actual 
facts and with no reasonable ground to believe it correct. 
International Shoe Co. v. Lewine, C.C.A.Miss., 68 F.2d 
517, 518. Such are more than erroneous or untrue and 
import intention to deceive. Schapiro v. Tweedie Foot
wear Corporation, C.C.A.Pa., 131 F.2d 876, 878. 
Under statutory provision making it unlawful for offi
cer or director of corporation to make any false state
ment in regard to corporation's financial condition, the 
phrase means something more than merely untrue or 
erroneous, but implies that statement is designedly un
true and deceitful, and made with intention to deceive 
person to whom false statement is made or exhibited.

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603 
The federal criminal statute governing false state
ments applies to three distinct offenses: falsifying, con
cealing, or covering up a material fact by any trick, 
scheme or device; making false, fictitious, or fraudulent 
statements or representations; and making or using any 
false documents or writing. 18 U.S.C.A. § 1001. 
See also Deceit; False representation; Fraud; Material 
fact; Perjury; Reliance. 
False swearing. A person who makes a false statement 
under oath or equivalent affirmation, or swears or af
firms the truth of such a statement previously made, 
when he does not believe the statement to be true, is 
guilty of a misdemeanor if: (a) the falsification occurs in 
an official proceeding; or (b) the falsification is intended 
to mislead a public servant in performing his of ficial 
function. Model Penal Code, § 241.2. 
The essential elements of "false swearing" consist in 
willfully, knowingly, absolutely and falsely swearing un
der oath or affirmation on a matter concerning which a 
party could legally be sworn and on oath administered 
by one legally authorized to administer it. Smith v. 
State, 66 Ga.App. 669, 19 S.E.2d 168, 169. It must 
appear that matter sworn to was judicially pending or 
was being investigated by grand jury, or was a subject 
on which accused could legally have been sworn, or on 
which he was required to be sworn. Capps v. Common
wealth, 294 Ky. 743, 172 S.W.2d 610, 611. See also False 
oath; Perjury. 
False token. In criminal law, a false document or sign 
of the existence of a fact, in general, used for the 
purpose of fraud. Device used to obtain money by false 
pretenses. See Counterfeit; False weights. 
False verdict. See Verdict. 
False weights. False weights and measures are such as 
do not comply with the standard prescribed by the state 
or government, or with the custom prevailing in the 
place and business in which they are used. 
Falsi crimen If6lsay kraym�n/. Fraudulent suborna
tion or concealment, with design to darken or hide the 
truth, and make things appear otherwise than they are. 
It is committed (1) by words, as when a witness swears 
falsely; (2) by writing, as when a person antedates a 
contract; (3) by deed, as selling by false weights and 
measures. See Crimen falsi. 
Falsification. See Falsify. 
Falsify. To counterfeit or forge; to make something 
false; to give a false appearance to anything. To make 
false by mutilation, alteration, or addition; to tamper 
with, as to falsify a record or document. The word 
"falsify" may be used to convey two distinct meanings
either that of being intentionally or knowingly untrue, 
made with intent to defraud, or mistakenly and acciden
tally untrue. Washer v. Bank of America Nat. Trust & 
Savings Ass'n, 21 CaL2d 822, 136 P.2d 297, 301. See 
also Alteration; Counterfeit; False; Forgery. 
To disprove; to prove to be false or erroneous; to 
avoid or defeat. Spoken of verdicts, appeals, etc. 
FAMACIDE 
Falsifying a record. It is a crime, under state and 
federal statutes, for a person, knowing that he has no 
privilege to do so, to falsify or otherwise tamper with 
public records with purpose to deceive or injure anyone 
or to conceal any wrongdoing. See, e.g., Model Penal 
Code, § 224.4; 18 U.S.C.A. §§ 1506, 2071, 2073. 
Falsity. Term implies more than erroneous or untrue; 
it indicates knowledge of untruth. 
Falsonarius Ifols�neriy�sl. A forger; a counterfeiter. 
Falso retorno brevium 1f6lsow r�t6rnow briyviy�m/. 
In old English law, a writ which formerly lay against 
the sheriff who had execution of process for false re
turning of writs. 
Falsum 1f6Is�m/. Lat. In the civil law, a false or forged 
thing; a fraudulent simulation; a fraudulent counterfeit 
or imitation, such as a forged signature or instrument. 
Also falsification, which may be either by falsehood, 
concealment of the truth, or fraudulent alteration, as by 
cutting out or erasing part of a writing. 
Falsus If6Is�sl. Lat. False; fraudulent; erroneous; de
ceitful; mistaken. In the sense of "deceiving" or "fraud
ulent," it is applied to persons in respect to their acts 
and conduct, as well as to things; and in the sense of 
"erroneous," it is applied to persons on the question of 
personal identity. 
Falsus in uno, falsus in omnibus If6ls�s in yuw
now, f6ls�s in 6mn�b�sl. False in one thing, false in 
everything. Dawson v. Bertolini, 70 R.I. 325, 38 A.2d 
765, 768. 
The doctrine means that if testimony of a witness on a 
material issue is willfully false and given with an inten
tion to deceive, jury may disregard all the witness' 
testimony. Hargrave v. Stockloss, 127 N.J.L. 262, 21 
A.2d 820, 823. The maxim deals only with weight of 
evidence. It does not relieve jury from passing on 
credibility of the whole testimony of a false swearing 
witness or excuse jury from weighing the whole testimo
ny. State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 
1052. It is a mere rule of evidence affirming a rebut
table presumption of fact, under which the jury must 
consider all the evidence of the witness, other than that 
which is found to be false, and it is their duty to give 
effect to so much of it, if any, as is relieved from the 
presumption against it and found to be true. It is not a 
rule of the law of evidence, but is merely an aid in 
weighing and sifting of evidence. Dawson v. Bertolini, 
70 R.I. 325, 38 A.2d 765, 768. It is particularly applied 
to the testimony of a witness who, if he is shown to have 
sworn falsely in one detail, may be considered unworthy 
of belief as to all the rest of his evidence. 
Fama Ifeym�/. Lat. Fame; character, reputation; re
port of common opinion. 
Famacide Ifeym�sayd/. A killer of reputation; a slan
derer. 
Fama, fides et oculus non patiuntur ludum Ifeym�, 
faydiyz et 6ky�l�s non pretiy;)nt�r l(y)uwd�m/. Fame, 
faith, and eyesight do not suffer a cheat.

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FAMILIA 
Fama qure suspicionem inducit, oriri debet apud bo
nos et graves, non quidem malevolos et maledicos, 
sed providas et fide dignas personas, non semel sed 
srepius, quia clamor minuit et defamatio manifestat 
Ifeym� kwiy s�spishiy6wn�m ind(y)uws�t, �rayray deb�t 
rep�d b6wnows et greyviyz, non kwid�m m�lev�lows et 
m�led�kows, sed pr�vayd�s et faydiy dign�s p�rs6wn�s, 
non sem�l sed siypiy�s, kway� klrem�r minyuw�t et 
der�meysh(iy)ow mren�fest�tI. Report, which induces 
suspicion, ought to arise from good and grave men; not, 
indeed, from malevolent and malicious men, but from 
cautious and credible persons; not only once, but fre
quently, for clamor diminishes, and defamation mani
fests. 
Familia /f�mil(i)y�/. Old English law. A household; 
the body of household servants; a quantity of land, 
otherwise called "mansa, " sufficient to maintain one 
family. 
Roman law. A household; a family. Family right; the 
right or status of being the head of a family, or of 
exercising the patria potestas over others. This could 
belong only to a Roman citizen who was a "man in his 
own right." 
Spanish law. A family, which might consist of domes
tics or servants. 
Familire emptor /f�miliyiy em(p)t�r/. In Roman law, an 
intermediate person who purchased the aggregate inher
itance when sold per res et libram, in the process of 
making a will under the Twelve Tables. This purchaser 
was merely a man of straw, transmitting the inheri
tance to the hreres proper. 
Familire erciscundre /f�miliyiy �rs�skandiy/. In Roman 
law, an action for the partition of the aggregate succes
sion of a familia, where that devolved upon cohreredes. 
It was also applicable to enforce a contribution towards 
the necessary expenses incurred on the familia. 
Familiar. Fair or reasonable knowledge of, or acquain
tance with. Closeness; intimacy. 
Familiares regis /f�miliyeriyz riyj�s/. Persons of the 
king's household. The ancient title of the "six clerks" of 
chancery in England. 
Familiarity. Close or reasonable acquaintance with or 
knowledge of. 
Family. The meaning of word "family" necessarily de
pends on field of law in which word is used, purpose 
intended to be accomplished by its use, and facts and 
circumstances of each case. LeRoux v. Edmundson, 276 
Minn. 120, 148 N.W.2d 812, 814. Most commonly refers 
to group of persons consisting of parents and children; 
father, mother and their children; immediate kindred, 
constituting fundamental social unit in civilized society. 
People v. Hasse, 57 Misc.2d 59, 291 N.Y.S.2d 53, 55. A 
collective body of persons who live in one house and 
under one head or management. A group of blood-rela
tives; all the relations who descend from a common 
ancestor, or who spring from a common root. A group 
of kindred persons. Hartley v. Bohrer, 52 Idaho 72, 11 
P.2d 616, 618. Husband and wife and their children, 
604 
wherever they may reside, and whether they dwell to
gether or not. Franklin Fire Ins. Co. v. Shadid, Tex. 
Com.App., 68 S.W.2d 1030, 1032. 
The word conveys the notion of some relationship, 
blood or otherwise. Collins v. Northwest Casualty Co., 
180 Wash. 347, 39 P.2d 986, 989. In restricted sense, the 
word "family" may be used interchangeably with house
hold. Collins v. Northwest Casualty Co., 180 Wash. 347, 
39 P.2d 986, 989. 
When used in constitution of benefit society, declaring 
its purpose among others as that of aiding the families 
of members, the word means such persons as habitually 
reside under one roof and form one domestic circle, or 
such persons as are dependent on each other for support 
or among whom there is legal or equitable obligation to 
furnish support and in its widest scope it would include 
all descendants of a common progenitor. Logan v. St. 
Louis Police Relief Ass'n, Mo.App., 133 S.W.2d 1048, 
1049, 1050. 
As used in context of uninsured motorist insurance 
coverage, "family" is not confined to those who stand in 
a legal or blood relationship, but rather should include 
those who live within the domestic circle of, and are 
economically dependent on, the named insured (e.g. fos
ter child or ward). Brokenbaugh v. N. J. Manufacturers 
Ins. Co. et aI., 158 N.J.8uper. 424, 386 A.2d 433. 
Descent and descendants. The word "family" may mean 
all descendants of a common progenitor, Logan v. St. 
Louis Police Relief Ass'n, Mo.App., 133 S.W.2d 1048, 
1049, 1050; In re Lund's Estate, 26 Ca1.2d 472, 159 P.2d 
643, 645; or, those who are of the same lineage, or 
descend from one common progenitor. 
Homestead and exemption laws. To constitute family 
there must be one whom law designates or recognizes as 
head of family who by natural ties or by legal or moral 
obligation is under duty to support others of the house
hold. Owens v. Altsheller & Co., 263 Ky. 727, 93 S.W.2d 
844, 846. To constitute persons living with another in 
same house a "family", it must appear that they are 
being supported by that other in whole or in part, and 
are dependent on him therefor, and that he is under a 
natural or moral obligation to render such support. 
Household. Those who live in same household subject 
to general management and control of the head thereof. 
Family and household are substantially synonymous 
terms for certain purposes. 
Support. A "family" is a collection of persons living 
together under one head, under such circumstances or 
conditions that the head is under a legal or moral 
obligation to support the other members, and the other 
members are dependent upon him or her for support. 
Hurt v. Perryman, 173 Tenn. 646, 122 S.W.2d 426, 427. 
Those entitled by law to look to person for support and 
protection. In re Fulton's Estate, 15 Ca1.App.2d 202, 59 
P.2d 508, 510. See also Dependent. 
Wills. As respects construction of will, the word "fami
ly" denotes a group of persons related to each other by 
marriage or blood living together under a single roof 
and comprising a household whose head is usually the

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605 
father or husband, but the word is not one of inflexible 
meaning and its significance to a large extent depends 
upon the context and the purpose for which it is em
ployed. For example, the word "family" has been held 
to include those who have left father's home and have 
married and established their own homes when context 
and purpose indicate such significance should be attrib
uted to the word. Magill v. Magill, 317 Mass. 89, 56 
N.E.2d 892, 894, 896. 
When the word "family" is used to designate those 
entitled to receive a legacy, the intended meaning of the 
word depends upon the context of the will and upon a 
showing as to whom were the objects of the testator's 
bounty by reason of kinship or friendship. 
Family allowance. Consists of certain amount of dece
dent's property allocated for the support of the widow 
and children during the period of estate administration. 
Family arrangement. A term denoting an agreement 
between a father and his children, or between the heirs 
of a deceased father, to dispose of property, or to parti
tion it in a different manner than that which would 
result if the law alone directed it, or to divide up 
property without administration. In these cases, fre
quently, the mere relation of the parties will give effect 
to bargains otherwise without adequate consideration. 
See also Family settlement. 
Family automobile doctrine. In a number of jurisdic
tions, when an automobile is maintained by the owner 
thereof for the general use and convenience of his or her 
family, such owner is liable for the negligence of a 
member of the family, having general authority to drive 
the car, while it is being used as such family car; that is, 
for the pleasure or convenience of the family or a 
member of it. This doctrine has been rejected, supersed
ed, or limited in its application, in most states. 
The doctrine rests upon the basis that the automobile 
is furnished by the husband in his individual capacity 
and as common-law head of the family for the use of the 
family, and not as the agent of the community. Under 
the doctrine, a father furnishing automobile for pleasure 
and convenience of family makes the use of automobile 
by family his business and any member of family driv
ing automobile with father's express or implied consent 
is the father's agent and the father is liable for the 
member's negligence. Donn v. Kunz, 52 Ariz. 219, 79 
P.2d 965, 966, 967. 
See also Family group; Family purpose doctrine, which 
are synonymous terms. 
Family Bible. A Bible containing a record of the births, 
marriages, and deaths of the members of a family. 
Family car doctrine. See Family automobile doctrine. 
Family council. See Family arrangement; Family meet
ing; Conseil de famille. 
Family court. Such courts exist in several states. 
While the jurisdiction of such courts will differ some
what from state to state, typically this court will have 
jurisdiction over: (1) child abuse and neglect proceed
ings, (2) support proceedings, (3) proceedings to deter-
FAMILY PURPOSE DOCTRINE 
mine paternity and for support of children born out of 
wedlock, (4) proceedings permanently to terminate cus
tody by reason of permanent neglect, (5) proceedings 
concerning juvenile delinquency and whether a person 
is in need of supervision, and (6) family offenses proceed
ings. The family court may be a division or department 
of a court of general jurisdiction. 
Family disturbance. Generic term used to describe any 
crime, tort or disorder within or touching the family. 
Family Division. A division of the High Court of Eng
land with jurisdiction over family matters. Formerly 
the Probate, Divorce and Admiralty Division. Renamed 
in 1970. See now Matrimonial and Family Proceedings 
Act, 1984, § 32. See also Family court. 
Family expense statutes. State statutes which permit 
charge against property of husband or wife for debts 
connected with family support and maintenance such as 
rent, food, clothing, and tuition. 
As used in tax law, expenses incurred for personal, 
living or family purposes for which no deduction may be 
claimed. I.R.C. § 262. 
Family group. Within purview of the family automo
bile doctrine, is not confined to persons related to the 
owner, but includes members of the collective body of 
persons living in his household for whose convenience 
the car is maintained and who have authority to use it. 
See also Family automobile doctrine; Family purpose doc
trine, which are synonymous terms. 
Family law. Branch or specialty of law, also denom
inated "domestic relations" law, concerned with such 
subjects as adoption, amendment, divorce, separation, 
paternity, custody, support and child care. See also 
Family court. 
Family meeting. In Louisiana, an advisory jury called 
to aid court in determining matters or affairs in which 
members of family are concerned. An institution of the 
laws of Louisiana, being a council of the relatives (or, if 
there are no relatives, of the friends) of a minor, for the 
purpose of advising as to his affairs and the administra
tion of his property. It corresponds to the "conseil de 
famille" of French law. 
Family partnership. In tax law, partnership consisting 
of members of family and such members shall include 
only a spouse, ancestors, lineal descendants, and any 
trusts for the benefit of such persons. I.R.C. § 704(e). 
Family physician. A physician who regularly attends 
and is consulted by the members of the family as their 
medical adviser; but he need not attend in all cases or 
be consulted by all the members of the family. 
Family purpose doctrine. Under this doctrine where 
one purchases and maintains automobile for comfort, 
convenience, pleasure, entertainment and recreation of 
one's family, any member thereof operating automobile 
will be regarded as agent or servant of the owner and 
owner will be held liable for injuries sustained by third 
person by reason of negligent operation of vehicle by 
member of family. Freeland v. Freeland, 152 W.Va. 
�32, 162 S.E.2d 922, 925. This doctrine has been reject-

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FAMILY PURPOSE DOCTRINE 
ed, or limited in its application, in many states. See also 
Family automobile doctrine and Family group, which are 
synonymous terms. 
Family service rule. See Family automobile doctrine. 
Family settlement. An agreement between members of 
a family settling the distribution of family property 
among them. Fitzgerald v. Nelson, 159 Or. 264, 79 P.2d 
254, 255. An arrangement or an agreement, between 
heirs of a deceased person, by which they agree on 
distribution or management of estate without adminis
tration by court having jurisdiction of such administra
tion proceedings. Wright v. Saltmarsh, 174 Okl. 226, 50 
P.2d 694, 703. A term of practically the same significa
tion as "family arrangement" (q. v.J. 
Famosus If;}mows;}s/. In the civil and old English law, 
relating to or affecting injuriously the character or 
reputation; defamatory; slanderous; scandalous. 
Famosus libellus If;}mows;}s l;}bel;}s/. A libelous writ
ing. A term of the civil law denoting that species of 
injuria which corresponds nearly to libel or slander. 
Fanatic. A religious or political enthusiast; a person 
entertaining extravagant notions, or affected by exces
sive zeal or enthusiasm, especially upon religious or 
political subjects. 
Fanciful terms. In trademark law, those terms that are 
"coined," having no independent meaning; they may be 
registered as trademarks even if they have not acquired 
secondary meaning. Abraham Zion Corp. v. Lebow, 
C.A.N.Y., 761 F.2d 93, 104. 
Fanega Ifaneyg;}/. In Spanish law, a measure of land 
varying in different provinces, but in the Spanish settle
ments in America consisting of 6,400 square varas or 
yards. 
Fannie Mae. See Federal National Mortgage Association. 
Faqueer If;}kir/. See Fakir. 
FAR. See Federal Acquisition Regulations. 
Fardel of land Ifard;}l ;}v lrend/. In old English law, the 
fourth part of a yard-land. 
Farding-deal. The fourth part of an acre of land. 
Fare. A voyage, journey, or passage. The transporta
tion charge paid by passenger. A paying passenger. 
As used in connection with interstate transportation 
means a rate of charge for the carriage of passengers, as 
approved by the proper governmental agency. Krause 
v. Pacific Mut. Life Ins. Co. of California, 141 Neb. 844, 5 
N.W.2d 229, 232. 
Farleu (or Farley) Ifarlyuw/farliy/. Money paid by 
tenants in lieu of a heriot. It was often applied to the 
best chattel, as distinguished from heriot, the best beast. 
Farlingarii Ifarl;}1Jgeriyay/. Whoremongers; adulterers. 
Farm, n. A tract of land devoted to agriculture, pastur
age, stock raising, or some allied industry. Includes 
dairy, stock, and poultry farms. 
606 
The original meaning of the word was rent; a term; a 
lease of lands; a leasehold interest, and by a natural 
transition it came to mean the land out of which the 
rent or lease issued. 
A letting out of the collection of taxes and revenues 
for a fixed sum. 
See also Farmer. 
Farm, v. To lease or let; to demise or grant for a limited 
term and at a stated rental. To carry on business or 
occupation of farming. 
Farm Credit Administration. An independent federal 
agency, responsible for supervising and coordinating ac
tivities of the cooperative Farm Credit System. The 
System is comprised of Federal land banks and Federal 
land bank associations, Federal intermediate credit 
banks and production credit associations, and banks for 
cooperatives. Initially capitalized by the United States, 
the entire system is now owned by its users. See also 
Farmers Home Adminis tration; Federal farm credit system. 
Farm crossing. A roadway over or under a railroad 
track for the purpose of reaching land cut off by the 
track. 
Farmer. A cultivator; a husbandman; an agriculturist; 
one engaged in agricultural pursuits as a livelihood or 
business, Skinner v. Dingwell, C.C.A. Iowa, 134 F.2d 391, 
393; one engaged in dairy farming and in production of 
poultry or livestock, Leonard v. Bennett, C.C.A.Or., 116 
F.2d 128, 131, 132, 134; one engaged in the business of 
cultivating land or employing it for the purpose of 
husbandry, Kaslovitz v. Reid, C.C.A.U tah, 128 F.2d 1017, 
1018; one living on his farm from revenue thereof and 
personally operating it on large scale as his primary 
activity; one personally engaged in farming, Shyvers v. 
Security-First Nat. Bank of Los Angeles, C.C.A.Cal., 108 
F.2d 611, 612, 613; one primarily engaged in agri
cultural pursuits; one who cultivates a considerable 
tract of land in some one of the usual recognized ways of 
farming; one who cultivates a farm either as owner or 
lessee, Kaslovitz v. Reid, C.C.A.U tah, 128 F.2d 1017, 
1018; one who cultivates a farm, whether the land be 
his own or another's; one who directs the business of a 
farm and works at farm labor, Stoner v. New York Life 
Ins. Co., Mo.App., 90 S.W.2d 784, 795; one who expends 
his energies and production efforts in tilling the soil, 
raising crops and marketing them, thereby promoting 
his financial interest and advancement; one who is 
primarily, personally, and bona fide engaged in farming 
although he does not spend all of his time therein, work 
farm without assistance, or refrain from engaging in 
secondary activities, In re Lindsay, D.C.Tex., 41 F.Supp. 
948, 950. See also Husbandman. 
As defined in Bankruptcy Code, is person who re
ceived more than 80 percent of his gross income during 
the taxable year immediately preceding commencement 
of bankruptcy proceeding from a farming operation 
owned or operated by such person. Bankruptcy Code 
§ 101. See also Bank ruptcy proceedings (Family farmer 
bankruptcy).

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607 
Farmer bankruptcy. See Ban kruptcy proceedings (Fam
ily farmer bankruptcy). 
Farmers Home Administration (FmHA). A division of 
the Department of Agriculture engaged in making direct 
mortgage loans to farmers and also home mortgage 
insurance and guarantee programs in rural areas and 
small towns. See also Farm Credit Admin istration; Feder
al farm credit system. 
Farming operation. As defined in Bankruptcy Code, 
term includes farming, tillage of the soil, dairy farming, 
ranching, production or raising of crops, poultry, or 
livestock, and production of poultry or livestock products 
in an unmanufactured state. Bankruptcy Code § 101. 
Farming products. All things are considered as "farm
ing products" or "agricultural products" which have a 
situs of their production upon the farm and which are 
brought into condition for uses of society by labor of 
those engaged in agricultural pursuits as contradistin
guished from manufacturing or other industrial pur
suits. 
Crops or livestock or supplies used or produced in 
farming operations or products of crops or livestock in 
their unmanufactured states, if they are in the posses
sion of a debtor engaged in farming operations. V.C.C. 
§ 9-109(3). 
r'arming purposes. These words are not limited in 
meaning to mere cultivation of soil and maintenance of 
improvements thereon for such purposes, but include 
raising of livestock, as well as production of farm crops 
directly from soil. State v. Superior Court for Walla 
Walla County, 168 Wash. 142, 10 P.2d 986, 987. See 
Farming operation. 
Farm labor or laborer. Agricultural employment and 
farm labor are used as practically synonymous and 
include all farm work and work incidental thereto. 
Smythe v. Phoenix, 63 Idaho 585, 123 P.2d 1010, 1012. 
One employed as a laborer on a farm, especially one 
who does all kinds of farm work; one employed in or 
about business of farming. One employed on a farm in 
customary types of farm work or employed and paid 
directly by a farmer in transporting his raw produce. 
Cedarburg Fox Farms v. Industrial Commission, 241 
Wis. 604, 6 N.W.2d 687, 689, 690. One who devotes his 
time to ordinary farm labor as gainful occupation with 
some reasonable degree of regularity and continuity. 
One who labors on a farm in raising crops or livestock, 
or in doing general farm work. 
See also Agricultural labor; Farmer. 
Farm let. Technical words in a lease creating a term for 
years. Operative words in a lease, which strictly mean 
to let upon payment of a certain rent in farm; i.e., in 
agricultural produce. See also Fee-farm; Fee-farm rent. 
Farm out. To let for a term at a stated rental. To turn 
over for performance or care. To exhaust farm land by 
continuous raising of single crop. 
Among the Romans the collection of revenue was 
farmed out, and the same system existed in France 
before the revolution of 1789; in England the excise 
FATAL ERRORS 
taxes were farmed out, and thereby their evils were 
greatly aggra vated. The farming of the excise was 
abolished in Scotland by the union, having been before 
that time abandoned in England. In all these cases the 
custom gave rise to great abuse and oppression of the 
people, and in France most of the farmers-general, as 
they were called, perished on the scaffold. 
Farmout agreement. An agreement by which one who 
owns an oil and gas lease agrees to assign to another an 
interest in the lease in return for drilling and testing 
operations on the lease. V nder standard "farmout 
agreement" farmout operator drills at his own expense 
and upon completion of commercial well becomes owner 
of working interest and usually operates well or ar
ranges for its operation, the assignor retaining a royalty. 
Northern Natural Gas Co. v. Grounds, D.C.Kan., 292 
F.Supp. 619, 628. 
Farm products. See Farming products. 
Farrier Ifreriy�r/. Occupation of shoeing horses. 
Farthing Ifar<JiI)I. The fourth part of an English penny. 
Farthing of gold. An ancient English coin, containing 
in value the fourth part of a noble. 
Farthing of land. A great quantity of land, differing 
much from farding-deal (q.v.). 
Farvand. Standing by itself, this word signifies "pas
sage by sea or water". In charter-parties, it means 
voyage or passage by water. 
Fas Ifres/. Lat. Right; justice; the divine law. In 
primitive times it was the will of the gods, embodied in 
rules regulating not only ceremonials but the conduct of 
all men. 
F.A.S. "Free alongside ship." Delivery term under 
which the seller is obligated to deliver goods to a speci
fied loading dock and bears expense and risk of loss up 
to that point. Term used in sales price quotations, 
indicating that the price includes all costs of transporta
tion and delivery of the goods alongside the ship. See 
V.C.C. § 2-319(2). 
F ASB. See Financial Accounting Standards Board. 
Fast-day. A day of fasting and penitence, or of mortifi
cation by religious abstinence. 
Fastermans, fastermannes, or fastingmen Ifrest�rm�
nz/frestiI)mim/. Men in repute and substance; pledges, 
sureties, or bondsmen, who; according to the Saxon 
polity, were fast bound to answer for each other's peace
able behavior. 
Fast estate. See Estate. 
Fasti Ifrestay/. In Roman law, lawful. Dies fasti, lawful 
days; days on which justice could lawfully be adminis
tered by the prretor. 
Fatal errors. As grounds for new trial, mean harmful 
errors; reversible errors. Such only as may reasonably 
be held to have worked substantial injury or prejudice to 
complaining party. Such errors generally afford party

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FATAL ERRORS 
right to new trial, as contrasted with "harmless" errors 
which do not. See Error; Plain error rule. 
Fatal injury. A term embracing injuries resulting in 
death, which, as used in accident and disability insur
ance policies is distinguished from "disability," which 
embraces injuries preventing the insured from perform
ing the work in which he is usually employed, but not 
resulting in death. 
Fatal variance. A variance in indictment tending to 
mislead defendant in making defense or one preventing 
plea of former jeopardy. A "variance" occurs when 
facts proved at trial are different from those alleged in 
the indictment; however, variance constitutes grounds 
for reversing a conviction only when it affects defen
dant's "substantial rights," that is, when the variance 
deprives a defendant of sufficiently specific information 
to prepare a defense and to be protected against surprise 
at trial, and prevents him from asserting his constitu
tional protection against double jeopardy. U.S. v. 
George, C.A.Mass., 752 F.2d 749, 753. It must be mis
leading or serve so as to substantially and materially 
mislead the adverse party. Lorenz v. Santa Monica City 
High School Dist., 51 CaLApp.2d 393, 124 P.2d 846, 851. 
See also Variance. 
Fatetur facinus qui judicium fugit If�tiyt�r fres�n�s 
kway j�dish(iy)�m fyuwj�tI. He who flees judgment 
confesses his guilt. 
Father. A male parent. He by whom a child is begot
ten. Natural father; procreator of a child. For putative 
father, see that title. 
As used in law, this term may (according to the 
context and the nature of the instrument) include a 
putative as well as a legal father, also a stepfather, an 
adoptive father, or a grandfather, but is not as wide as 
the word "parent," and cannot be so construed as to 
include a female. 
A priest of the clergy. 
Father-in-law. The father of one's wife or husband. 
Fathom. A nautical measure of six feet in length. Oc
casionally used as a superficial measure of land and in 
mining, and in that case it means a square fathom or 
thirty-six square feet. 
Fatua mulier Ifretyuw� myuwl(i)y�r/. A whore; prosti
tute. 
Fatuitas If�tyuw�tres/. In old English law, fatuity; idio
cy. 
Fatum Ifeyt�m/. Lat. Fate; a superhuman power; an 
event or cause of loss, beyond human foresight or means 
of prevention. 
Fatuum judicium Ifretyuw�m j�dish(iy)�m/. A foolish 
judgment or verdict. As applied to the latter it is one 
rather false by reason of folly than criminally so, or as 
amounting to perjury. 
Fatuus Ifretyuw�s/. An idiot or fool. Foolish; silly; 
absurd; indiscreet; or ill considered. See Fatuum judici
um. 
608 
Fatuus, apud jurisconsultos nostros, accipitur pro 
non compos mentis; et fatuus dicitur, qui omnino 
desipit Ifretyuw�s, rep�d jur�sk�ns�ltows nostrows, 
reksip�t�r prow non komp�s ment�s; et fretyuw�s dis�t�r 
kway omnaynow des�p�tI. Fatuous, among our juris
consults, is understood for a man not of right mind; and 
he is called "fatuus" who is altogether foolish. 
Fatuus prresumitur qui in proprio nomine errat 
Ifretyuw�s pr�z(y)uwm�t�r kway in prowpriyow nom�niy 
ehr�tI. A man is presumed to be simple who makes a 
mistake in his own name. 
Faubourg Ifowburg/fow bur/. In French law, and in 
Louisiana, a district or part of a town adjoining the 
principal city; a suburb. 
Fauces terrre Ifosiyz tehriy/. (Jaws of the land.) Nar
row headlands and promontories, inclosing a portion or 
arm of the sea within them. 
Fault. Negligence; an error or defect of judgment or of 
conduct; any deviation from prudence, duty, or recti
tude; any shortcoming, or neglect of care or perform
ance resulting from inattention, incapacity, or perversi
ty; a wrong tendency, course, or act; bad faith or 
mismanagement; neglect of duty. Continental Ins. Co. 
v. Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697. 
Under general liability principles, "fault" is a breach of 
a duty imposed by law or contract. Angelo Pavone 
Enterprises, Inc., v. South Cent. Bell Telephone Co., 
La.App. 4 Cir., 459 So.2d 1223, 1226. The term connotes 
an act to which blame, censure, impropriety, shortcom
ing or culpability attaches. Kersey Mfg. Co. v. Rozic, 
207 Pa.Super. 182, 215 A.2d 323, 325. 
Wrongful act, omission or breach. U.C.C. § 1-201(16). 
See also Negligence; No fault; Pari delicto; Tort. 
Fauntleroy doctrine. In Fauntleroy v. Lum, 210 U.S. 
230, 28 S.Ct. 641, 52 L.Ed. 1039, the U.S. Supreme Court 
held that a state must give full faith and credit to a 
judgment of a sister state if such state had jurisdiction 
to render it even though the judgment is based on an 
original cause of action which is illegal in the state in 
which enforcement is sought. 
Fautor Ifot�r/. Old English law. A favorer or support
er of others; an abettor. A partisan. One who encour
aged resistance to the execution of process. 
Spanish law. Accomplice; the person who aids or as
sists another in the commission of a crime. 
Faux Ifow I. Civil law. The fraudulent alteration of the 
truth. The same with the Latin falsum or crimen falsi. 
French law. A falsification or fraudulent alteration or 
suppression of a thing by words, by writings, or by acts 
without either. Faux may be understood in three ways. 
In its most extended sense it is the alteration of truth, 
with or without intention; it is nearly synonymous with 
"lying." In a less extended sense, it is the alteration of 
truth, accompanied with fraud, mutatio veritatis cum 
dolo facta. And lastly, in a narrow, or rather the legal, 
sense of the word, when it is a question to know if the 
faux be a crime, it is the fraudulent alteration of the

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609 
truth in those cases ascertained and punished by the 
law. 
Old English law. False; counterfeit. Faux action, a 
false action. Faux money, counterfeit money. Faux 
peys, false weights. Faux serement, a false oath. 
Favor, n. An act of kindness or generosity, as distin
guished from one that is inspired by regard for justice, 
duty, or right.. Friendly regard shown towards another. 
Bias; partiality; lenity; prejudice. See Challenge. 
Favor, v. To regard with favor; to aid or to have the 
disposition to aid; to show partiality or unfair bias 
towards; practically synonymous with "support." 
Favorabilia in lege sunt fiscus, dos, vita, libertas 
/feyv�r�bil(i)y� in liyjiy s�nt fisk;}s, dows, vayt�, 
lib;}rtres/. Things favorably considered in law are the 
treasury, dower, life, liberty. 
Favorabiliores rei, potius quam actores, habentur 
/ feyv;}r�biliyoriyz riyay, powsh(iy )�s kwrem oktoriyz, 
h;}bent�r/. The condition of the defendant must be 
favored, rather than that of the plaintiff. 
Favorabiliores sunt executiones aliis processibus 
quibuscunque /feyv�r�biliyoriyz s�nt eks�kyuwshiyow
niyz (Hiy�s pr�ses�b�s kwib�sk;}1Jkwiy /. Executions are 
preferred to all other processes whatever. 
Favored beneficiary. Within rule that confidential re
lations and activity by favored beneficiary in the execu
tion of the will raises a prima facie presumption of 
undue influence, is one who in the circumstances has 
been favored over others having equal claims to testa
tor's bounty. Mindler v. Crocker, 245 Ala. 578, 18 So.2d 
278, 281. 
Favored nation. See Most favored nation clause. 
Favores ampliandi sunt; odia restringenda /f�voriyz 
rempliyrenday s�nt; owdiy� riystrinjend;)/. Favors are to 
be enlarged; things hateful restrained. 
Favoritism. Invidious preference and selection based on 
friendship and factors other than merit. See Nepotism; 
Patronage. 
Favor legitimationis /feyv�r l�jit;}meyshiyown�s/. Fa
vor of legitimacy; in conflicts of law, principle which is 
invoked in cases of children's status of legitimacy. 
Favor matrimonii /feyv;}r mretr�mowniyay/. Favor of 
marriage. In conflicts of law, principle invoked to up
hold a marriage. 
Favor negotii Ifeyv;}r n;}gowshiyay/. In conflicts of 
laws, legal principle which favors agreement of the 
parties against a construction which would render an 
agreement illegal or unenforceable. 
Favor patemitatis /feyv�r p�t�rn�teyt;}s/. Favor of pa
ternity. Legal principle which is invoked to uphold 
paternity of child. 
Favor solutionis Ifeyv�r s�l(y)uwshiyown�s/. In con
flicts, a rule of interpretation of a contract in terms of 
the applicable law governing performance. 
Black's Law Dictionary 6th Ed.-14 
FEASOR 
Favor testamenti Ifeyv;}r test�mentay / . In conflicts, 
general rule favoring the validity of a will. 
F.B.I. See Federal Bureau of Investigation. 
F.C.A. See Farm Credit Admin istration. 
F.C.C. See Federal Communic ations Commission. 
F.C.I.C. Federal Crop Insurance Corporation. See Insur-
ance. 
F.D.A. See Food and Drug Adminis tration. 
F.D.I.C. See Federal Deposit Insurance Corporation. 
Feal /fiy(;})lI. Faithful; truthful; true. Tenants by 
knight service swore to their lords to be feal and leal; 
i.e., faithful and loyal. Feal homager, faithful subject. 
Fealty /fiy(�)ltiy/. In feudal law, fidelity; allegiance to 
the feudal lord of the manor; the feudal obligation 
resting upon the tenant or vassal by which he was 
bound to be faithful and true to his lord, and render him 
obedience and service. This fealty was of two sorts: 
that which is general, and is due from every subject to 
his prince; the other special, and required of such only 
as in respect of their fee are tied by this oath to their 
landlords. 
Fealty signifies fidelity, the phrase "feal and leal" 
meaning simply "faithful and loyal ." Tenants by 
knights' service and also tenants in socage were re
quired to take an oath of fealty to the king or others, 
their immediate lords; and fealty was one of the condi
tions of their tenure, the breach of which operated a 
forfeiture of their estates. 
Although foreign jurists considered fealty and homage 
as convertible terms, because in some continental coun
tries they were blended so as to form one engagement, 
yet they were not to be confounded in our country, for 
they did not imply the same thing, homage being the 
acknowledgment of tenure, and fealty, the vassal oath of 
fidelity, being the essential feudal bond, and the animat
ing principle of a feud, without which it could not 
subsist. 
Fear. Apprehension of harm; dread; consciousness of 
approaching danger. Mental response to threat. Pro
found reverence and awe. 
Within Hobbs Act extortion definition, includes fear of 
economic loss as well as of physical harm. U.S. v. 
Addonizio, C.A.N.J., 451 F.2d 49, 72. 
Feasance Ifiyz�ns/. A doing; the doing of an act; a 
performing or perf ormance. See Malfeasance; Misfea
sance; Nonfeasance. 
Feasant /fiyz;}nt/. Doing, or making, as, in the term 
"damage feasant" (doing damage or in jury), spoken of 
cattle straying upon another's land. 
Feasible. Capable of being done, executed, affected or 
accomplished. Reasonable assurance of success. See 
Possible. 
Feasor /fiyz�r/. Doer; maker. Feasors del estatute, 
makers of the statute. Also used in the compound term, 
"tort-feasor," one who commits or is guilty of a tort.

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FEASTS 
Feasts. Certain established festivals or holidays in the 
ecclesiastical calendar. These days were anciently used 
as the dates of legal instruments, and in England the 
quarter-days, for paying rent, are four feast-days. The 
terms of the courts, in England, before 1875, were fixed 
to begin on certain days determined with reference to 
the occurrence of four of the chief feasts. 
Featherbedding. The name given to employee practices 
which create or spread employment by unnecessarily 
maintaining or increasing the number of employees 
used, or the amount of time consumed, to work on a 
particular job. Most of these practices stem from a 
desire on the part of employees for job security in the 
face of technological improvements. 
F.E.C.A. See Federal Employees' Compensation Act. 
Feciales lfiyshiyeyliyz/. Among the ancient Romans, 
that order of priests who discharged the duties of ambas
sadors. Subsequently their duties appear to have relat
ed more particularly to the declaring of war and peace. 
Fecial law lfiysh;)l 16/. The nearest approach to a 
system of international law known to the ancient world. 
It was a branch of Roman jurisprudence, concerned with 
embassies, declarations of war, and treaties of peace. It 
received this name from the feciales (q.v.), who were 
charged with its administration. 
Federal. Belonging to the general government or union 
of the states. Founded on or organized under the Con
stitution of the United States. Pertaining to the nation
al government of the United States. Of or constituting 
a government in which power is distributed between a 
central authority (i.e. federal government) and a number 
of constituent territorial units (i.e. states). See also 
Federal government. 
A league or compact between two or more states, to 
become united under one central government. See Fed
eration. 
Federal Acquisition Regulations. Federal regulations 
governing government contracting methods, require
ments, and procedures. 48 CFR (Ch. 1). 
Federal Acts. Statutes enacted by Congress, relating to 
matters within authority delegated to federal govern
ment by U.S. Constitution. Compare State law. 
Federal agency. Any executive department, military 
department, government corporation, government-con
trolled corporation or other establishment in the execu
tive branch of government including the Executive office 
of the President or any independent regulatory agency. 
5 U.S.C.A. § 552(f). 
Federal Aviation Administration. The Federal Avia
tion Administration (FAA), formerly the Federal A via
tion Agency, became a part of the Department of Trans
portation in 1967 as a result of the Department of 
Transportation Act (80 Stat. 932). The Federal Aviation 
Administration is charged with regulating air commerce 
to foster aviation safety; promoting civil aviation and a 
national s ystem of airports; achieving efficient use of 
navigable airspace; developing and operating a common 
610 
system of air traffic control and air navigation for both 
civilian and military aircraft; and developing and imple
menting programs and regulations to control aircraft 
noise, sonic boom, and other environmental effects of 
civil aviation. 
Federal Bureau of Investigation. The FBI (established 
in 1908) is charged with investigating all violations of 
Federal laws with the exception of those which have 
been assigned by legislative enactment or otherwise to 
some otger Federal agency. The FBI's jurisdiction in
cludes a wide range of responsibilities in the criminal, 
civil, and security fields. Among these are espionage, 
sabotage, and other subversive activities; kidnaping; 
extortio n; bank robbery; interstate transportation of 
stolen property; civil rights matters; interstate gam
bling violations; fraud against the Government; and 
assault or killing the President or a Federal officer. 
Cooperative services of the FBI for other duly authorized 
law enforcement agencies include fingerprint identifica
tion, laboratory services, police training, and the Nation
al Crime Information Center. 
Federal census. A census of each state or territory or of 
a certain state or of any subdivision or portion of any 
state, provided it is taken by and under the direction 
and supervision of the Census Bureau of the United 
States, and approved and certified by it as the census of 
that state or subdivision. See Census. 
Federal citizenship. Rights and obligations accruing by 
reason of being a citizen of the United States. State or 
status of being a citizen of the United States. 
A person born or naturalized in the United States and 
subject to the jurisdiction thereof is a citizen of the 
United States and of the State wherein he resides. 
Fourteenth Amend., U.S. Const. 
See also Citizenship; Naturalization. 
Federal common law. A body of decisional law devel
oped by the federal courts. The application of this body 
of common law is limited by the Erie doctrine and by the 
Rules of Decision Act, which provides that except for 
cases governed by the Constitution, the treaties of the 
United States, or acts of Congress, federal courts are to 
apply state law. Areas in which federal common law 
have been developed include federal "proprietary" inter
ests, admiralty and foreign relations. Erie R. Co. v. 
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See 
also Erie v. Tompkins; Rules of Decision Act; Swift v. 
Tyson Case. 
Federal Communications Commission. The Federal 
Communications Commission was created by the Com
munications Act of 1934 to regulate interstate and for
eign communications by wire and radio in the public 
interest. It was assigned additional regulatory jurisdic
tion under the provisions of the Communications Satel
lite Act of 1962. The scope of its regulatory powers 
includes radio and television broadcasting) telephone, 
telegraph, and cable television operation; two-way radio 
and radio operators; and satellite communication. 
Federal courts. The courts of the United States (as 
distinguished from state, county, or city courts) as cre-

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61 1 FEDERAL INSURANCE CONTRIBUTIONS ACT 
ated either by Art. III of U.S.C onst., or b y Congress. See 
specific courts; e.g., Courts of Appeals, U.S.; Claims 
Court, U.S.; District (District courts), Supreme court; 
Three-judge courts. 
Federal crimes. Those acts which have been made 
criminal by federal law. There are no federal common 
law crimes though many federal statutes have incorpo
rated the elements of common law crimes. Most federal 
crimes are codified in Title 18 of the United States Code; 
though other Code Titles also include specific crimes. 
Such crimes (e.g., RICO offenses, tax evasion, interstate 
kidnapping) are prosecuted in federal courts. 
Federal Deposit Insurance Corporation. The FDIC is 
an independent agency within the executive branch of 
the Government. It insures, up to the statutory limita
tion, deposits in qualified banks and savings associa
tions. 12 U.S.C.A. § 1811. 
Federal Employees' Compensation Act. Type of work
ers' compensation plan for federal employees by which 
payments are made for death or disability sustained in 
performance of duties of employment. 5 U.S.C.A. § 8101 
et seq. 
Federal Employer's Liability Act. Federal workers' 
compensation law which protects employees of railroads 
engaged in interstate and foreign commerce. 45 U.S. 
C.A. § 51 et seq. Payments are made for death or 
disability sustained in performance of duties of employ
ment. 
Federal Energy Regulatory Commission. The succes
sor agency to the Federal Power Commission responsible 
for administering the Natural Gas Act and the Natural 
Gas Policy Act. 
Federal farm credit system. Consists of the Federal 
land banks, the Federal land bank associations, the 
Federal intermediate credit banks, the production credit 
associations, the banks for cooperatives, and such other 
institutions as may be made part of the system. The 
farm credit system as a whole is regulated by the Farm 
Credit Administration, an independent executive agency 
which sets policy and exercises supervisory authority. 
12 U.S.C.A. §§ 2001-2260. See also Farm Credit Adminis
tration. 
Federal government. The system of government ad
ministered in a nation formed by the union or confeder
ation of several independent states. 
In strict usage, there is a distinction between a confed
eration and a federal government. The former term 
denotes a league or permanent alliance between several 
states, each of which is fully sovereign and independent, 
and each of which retains its full dignity, organization, 
and sovereignty, though yielding to the central authori
ty a controlling power for a few limited purposes, such 
as external and diplomatic relations. In this case, the 
component states are the units, with respect to the 
confederation, and the central government acts upon 
them, not upon the individual citizens. In a federal 
government, on the other hand, the allied states form a 
union (e.g. United States),-not, indeed, to such an ex-
tent as to destroy their separate organization or deprive 
them of quasi sovereignty with respect to the adminis
tration of their purely local concerns, but so that the 
central power is erected into a true national govern
ment, possessing sovereignty both external and internal, 
-while the administration of national affairs is direct
ed, and its effects felt, not by the separate states deliber
ating as units, but by the people of all, in their collective 
capacity, as citizens of the nation. The distinction is 
expressed, by the German writers, by the use of the two 
words "Staatenbund" and "Bundesstaat;" the former 
denoting a league or confederation of states, and the 
latter a federal government, or state formed by means of 
a league or confederation. 
See also Federal. 
Federal grand jury. See Jury. 
Federal Home Loan Bank Board. The federal agency 
formerly charged with regulating federal savings and 
loan associations and the Federal Home Loan Bank 
system. Abolished in 1989, its functions are now per
formed by the Office of Thrift Supervision and the 
Federal Housing Finance Board. See also Federal Hous
ing Finance Board; Office of Thrift Supervision. 
Federal Home Loan Banks. Banks created under the 
Federal Home Loan Bank Act of 1932, for the purpose of 
keeping a permanent supply of mone y available for 
home financing. The banks are controlled by the Feder
al Housing Finance Board. Savings and loans, insur
ance companies, and other similar companies making 
long term mortgage loans may become members of the 
Federal Home Loan Bank S ystem, and thus may borrow 
from one of twelve regional banks throughout the coun
try. 
Federal Home Loan Mortgage Corporation. A feder
al agency which purchases first mortgages (both conven
tional and federally insured) from members of the Fed
eral Reserve S ystem, and the Federal Home Loan Bank 
S ystem. Commonl y called "Freddie Mac." 
Federal Housing Administration. This federal agency, 
established by Congress in 1934, insures mortgage loans 
made by FHA-approved lenders on homes that meet 
FHA standards in order to make mortgages more desir
able investments for lenders. 
Federal Housing Finance Board. An independent 
agency in the executive branch charged with supervis
ing the system of Federal Home Loan Banks. See also 
Federal Home Loan Banks. 
Federal instrumentality. A means or agency used by 
the federal government to implement or carry out a 
federal law or function. Capitol Building & Loan Ass'n 
v. Kansas Commission of Labor and Industry, 148 Kan. 
446, 83 P.2d 106, 107. A government agency immune 
from state controL Waterbury Sav. Bank v. Danaher, 
128 Conn. 78, 20 A.2d 455, 458. See Admini strative 
agency. 
Federal Insurance Contributions Act. Federal Act 
imposing social security tax on emplo yees, self em
plo yed, and employers. Under the F.I.C.A. the emplo yer

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FEDERAL INSURANCE CONTRIBUTIONS ACT 612 
matches the tax paid by the employee. These taxes 
fund the social security and medicare programs. 
Federalism. Term which includes interrelationships 
among the states and relationship between the states 
and the federal government. 
Federalist Papers. A series of 85 essays by Alexander 
Hamilton, James Madison and John Jay, expounding 
and advocating the adoption of the Constitution of the 
United States. All but six of the essays were first 
published in the "Independent Journal" of New York 
City from October, 1787, to April, 1788. 
Federal Judicial Code. This Code, comprising Title 28 
of the United States Code, is concerned with the orga
nization, jurisdiction, venue, and procedures of the fed
eral court system. Also covered by this Code is the 
Department of Justice as well as court officers and 
personnel. 
Federal jurisdiction. Powers of federal courts founded 
on U.S. Constitution (Article III) and Acts of Congress 
(e.g. Title 28 of United States Code). See Diversity of 
citizenship; Federal question jurisdiction. 
Federal Land Banks. Regional banks established by 
Congress, and regulated by U.S. Farm Credit Adminis
tration, to provide mortgage loans to farmers. See Fed
eral farm credit system; Federal Home Loan Banks. 
Federal laws. See Federal Acts. 
Federal Maritime Commission. The Federal Maritime 
Commission regulates the waterborne foreign and do
mestic offshore commerce of the United States, assures 
that United States international trade is open to all 
nations on fair and equitable terms, and guards against 
unauthorized monopoly in the waterborne commerce of 
the United States. This is accomplished through main
taining surveillance over steamship conferences and 
common carriers by water; assuring that only the rates 
on file with the Commission are charged; approving 
agreements between persons subject to the Shipping 
Act; guaranteeing equal treatment to shippers and 
carriers by terminal operators, freight forwarders, and 
other persons subject to the shipping statutes; and en
suring that adequate levels of financial responsibility 
are maintained for indemnification of passengers or oil 
spill cleanup. 
Federal Mediation and Conciliation Service. The 
Federal Mediation and Conciliation Service helps pre
vent disruptions in the flow of interstate commerce 
caused by labor-management disputes by providing me
diators to assist disputing parties in the resolution of 
their differences. The Service can intervene on its own 
motion or by invitation of either side in a dispute. 
Mediators have no law enforcement authority and rely 
wholly on persuasive techniques. The Service also helps 
provide qualified third party neutrals as factfinders or 
arbitrators. 
Federal National Mortgage Association. Organized 
in 1938 to provide a secondary mortgage market for 
purchase and sale of mortgages guaranteed by Veterans 
Administration and those insured under Federal Hous
ing Administration. The short name for this association 
is "Fannie Mae". 
Federal Power Commission. The Federal Power Com
mission was terminated in 1977, with its functions of 
regulating the interstate energy industry taken over by 
the Department of Energy, and, within the DOE, by the 
Federal Energy Regulatory Commission. 
Federal pre-emption. The U.S. Constitution and acts of 
Congress have given to the federal government exclusive 
power over certain matters such as interstate commerce 
and sedition to the exclusion of state jurisdiction. Oc
curs where federal law so occupies the field that state 
courts are prevented from asserting jurisdiction. State 
v. McHorse, 85 N.M. 753, 517 P.2d 75, 79. See also 
Preemption. 
Federal question jurisdiction. Cases arising under 
Constitution of United States, Acts of Congress, or trea
ties, and involving their interpretation and application, 
and of which jurisdiction is given to federal courts, are 
commonly described as involving a "federal question." 
See U.S.C onst., Art. III, Sec. 2, and 28 U.S.C.A. § 1331 
with respect to "federal question" jurisdiction of federal 
courts. 
Federal Register. The Federal Register, published dai
ly, is the medium for making available to the public 
Federal agency regulations and other legal documents of 
the executive branch. These documents cover a wide 
range of Government activities. An important function 
of the Federal Register is that it includes proposed 
changes (rules, regulations, standards, etc.) of govern
mental agencies. Each proposed change published 
carries an invitation for any citizen or group to partic
ipate in the consideration of the proposed regulation 
through the submission of written data, views, or argu
ments, and sometimes by oral presentations. Such regu
lations and rules as finally approved appear thereafter 
in the Code of Federal Regulations. 
Federal regulations. See Code of Federal Regulations; 
Federal Register. 
Federal Reporter. The Federal Reporter (consisting of 
a First and Second series) publishes opinions of the 
below listed federal courts: 
1880-1932 
Circuit Court of Appeals 
District Courts 
U.S. Court of Customs and Patent Appeals 
Court of Claims of the U.S. 
Court of Appeals of the District of Columbia 
1932-present 
U.S. Courts of Appeals 
1932-1982 
U.S. Court of Customs and Patent Appeals 
1942-61, 1972-present

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613 
u.s. Emergency Court of Appeals 
1960--1982 
U.S. Court of Claims (Claims Court decisions published 
in U.S. Claims Court Reporter 1983 to present) 
See also Federal Supplement. 
Federal Reserve Act. Law which created Federal Re
serve banks which act as agents in maintaining money 
reserves, issuing money in the form of bank notes, 
lending money to banks, and supervising banks. Ad
ministered by Federal Reserve Board (q. v.). 
Federal Reserve Banks. See Federal Reserve Act; Fed
eral Reserve Board of Governors; Federal Reserve Sys
tem. 
Federal Reserve Board of Governors. The seven
member Board of Governors, appointed by the President 
and confirmed by the Congress, sets reserve require
ments for member banks, reviews and approves the 
discount-rate actions of regional Federal Reserve Banks, 
sets ceilings on the rates of interest that banks can pay 
on time and savings deposits, and issues regulations. 
Members also sit on the Federal Open Market Commit
tee-the principal instrument for implementing the 
Board's national monetary policy. 
Federal reserve notes. Form of currency issued by 
Federal Reserve Banks in the likeness of noninterest 
bearing promissory note payable to bearer on demand. 
The federal reserve note (e.g. one, five, ten, etc. dollar 
bill) is the most widely used paper currency. Such have 
replaced silver and gold certificates which were backed 
by silver and gold. Such reserve notes are direct obli
gations of the United States. 
Federal Reserve System. Network of twelve central 
banks to which most national banks belong and to which 
state chartered banks may belong. Membership rules 
require investment of stock and minimum reserves. 
The Federal Reserve System was established in 1913 to 
give the country an elastic currency, provide facilities 
for discounting commercial paper and to improve the 
supervision of banking. 
The System consists of five parts: the Board of Gover
nors in Washington; the 12 Federal Reserve Banks, 
their branches and other facilities situated throughout 
the country; the Federal Open Market Committee; the 
Federal Advisory Council; and the member commercial 
banks, which include all national banks and State-char
tered banks that have voluntarily joined the System. 
Federal Rules Act. Act of 1934 granting U.S. Supreme 
Court power to adopt Federal Rules of Civil Procedure. 
See 28 U.S.C.A. §§ 2071, 2072. Additional power to 
prescribe rules is provided for by 28 U.S.C.A. § 2075 
(Bankruptcy Rules), § 2072 (Evidence Rules) and 28 
U.S.C.A. §§ 2071-2074 for other procedural rules for 
cases in U.S. district or courts of appeals. 
Federal Rules Decisions. A unit of the National Re
porter System which publishes federal court decisions 
which construe or apply the Federal Rules of Civil, 
Criminal and Appellate Procedure, as well as Federal 
FEDERAL TORT CLAIMS ACT 
Rules of Evidence. Also included are articles relating to 
federal court practice and procedure. 
Federal Rules of Appellate Procedure. These rules 
govern procedure in appeals to United States courts of 
appeals from the United States district courts and the 
Tax Court of the United States; in proceedings in the 
courts of appeals for review or enforcement of orders of 
administrative agencies, boards, commissions and offi
cers of the United States; and in applications for writs 
or other relief which a court of appeals or a judge 
thereof is competent to give. Certain states have 
adopted rules patterned on such federal rules to govern 
practice in. their appellate courts. 
Federal Rules of Civil Procedure. Body of procedural 
rules which govern all civil actions in U.S. District 
Courts and after which most states have modeled their 
own rules of civil procedure. These rules were promul
gated by the U.S. Supreme Court in 1938 under power 
granted by Congress, and have since been frequently 
amended. Such rules also govern adversary proceedings 
in the bankruptcy courts; and, Supplemental Rules, in 
addition to main body of rules, govern admiralty and 
maritime actions. See 28 U.S.C.A. §§ 2071-2074. 
Federal Rules of Criminal Procedure. Procedural 
rules which govern all criminal proceedings in the U.S. 
District Courts, and, where specified, before U.S. Magis
trates. Such rules were promulgated by the U.S. Su
preme Court in 1945 under power granted by Congress, 
and have since been frequently amended. Several 
states have adopted criminal procedural rules patterned 
on the federal criminal rules. See 28 U.S.C.A. §§ 2071-
2074. 
Federal Rules of Evidence. Rules which govern the 
admissibility of evidence at trials in the Federal District 
Courts and before U.S. Magistrates. Many states have 
adopted Evidence Rules patterned on these federal rules. 
See 28 V.S.C.A. §§ 2072-2074. 
Federal statutes. See Federal Acts. 
Federal Supplement. The Federal Supplement pub
lishes opinions of the below listed federal courts: 
1932-present 
U.S. District Courts 
1932-1960 
U.S. Court of Claims 
1949-present 
U.S. Customs Court (vol. 135). (Renamed Court of 
International Trade in 1980) 
See also Federal Reporter. 
Federal Tort Claims Act. The government of the Unit
ed States may not be sued in tort without its consent. 
That consent was given in the Federal Tort Claims Act 
(1946), which largely abrogated the federal government's 
immunity from tort liability and established the condi
tions for suits and claims against the federal govern
ment. The Act (28 U.S.C.A. §§ 1346(b), 2674) preserves 
governmental immunity with respect to the traditional

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FEDERAL TORT CLAIMS ACT 
categories of intentional torts, and with respect to acts 
or omissions which fall within the "discretionary func
tion or duty" of any federal agency or employee. See 
also Sovereign immuni ty. 
Federal Trade Commission. Agency of the federal 
government created in 1914. The Commission's princi
pal functions are to promote free and fair competition in 
interstate commerce through prevention of general 
trade restraints such as price-fixing agreements, false 
advertising, boycotts, illegal combinations of competitors 
and other unfair methods of competition. See also Clay
ton Act; Robins on-Patman Act; Sherman Antitrust Act. 
Federation. A joining together of states or nations in a 
league or association; the league itself. See also Com
pact; Federal; Federal government; United States. 
An unincorporated association of persons for a com
mon purpose. 
Fee. A charge fixed by law for services of public officers 
or for use of a privilege under control of government. 
Fort Smith Gas Co. v. Wiseman, 189 Ark. 675, 74 S.W.2d 
789, 790. A recompense for an official or professional 
service or a charge or emolument or compensation for a 
particular act or service. A fixed charge or perquisite 
charged as recompense for labor; reward, compensation, 
or wage given to a person for performance of services or 
something done or to be done. 
See also Base (Base fee); Commitment fee; License fee 
or tax; Poundage fees; Retainer. 
Attorney fees. Charge to client for services performed 
(e.g. hourly fee, flat fee, contingency fee). Such fees 
must be "reasonable" (see e.g. Model Rules of Profession
al Conduct, Rule 1. 5(a)). Numerous federal statutes 
provide for the award of attorney fees to the prevailing 
party; e.g. , 25% of award in social security disability 
claim actions. See Contingent fees, below; also, Ameri
can rule; Equal Access to Justice Act; Fee splitting; 
Minimum fee schedules; Retainer; Suit (Suit money). 
Contingent fees. Arrangement between attorney and 
client whereby attorney agrees to represent client with 
compensation to be a percentage of the amount recov
ered; e.g., 25% if the case is settled, 30% if case goes to 
trial. Frequently used in personal injury actions. Such 
fee arrangements are often regulated by court rule or 
statute depending on the type of action and amount of 
recovery; and are not permitted in criminal cases (see, 
e.g., ABA, Model Rules of Professional Conduct, Rule 
1.5 (c), (d)). 
Court fees. Those amounts paid to court or one of its 
officers for particular charges that typically are deline
ated by statute, such as docket fees, marshal's charges 
and witness fees. Dickerson v. Pritchard, D.C.Ark., 551 
F.Supp. 306, 311. See e.g. 28 U.S.C.A. § 1911 et seq. 
See also Costs; Docket (Docket fee). 
Docket fees. See Court fees above; also Docket. 
614 
Estates 
An interest in land which (a) is or may become posses
sory; and (b) is ownership measured in terms of dura
tion. Restatement of Property § 9. See also Fee simple. 
Ordinarily, word "fee" or "fee simple" is applied to an 
estate in land, but term is applicable to any kind of 
hereditament, corporeal or incorporeal, and is all the 
property in thing referred to or largest estate therein 
which person may have. In re Forsstrom, 44 Ariz. 472, 
38 P.2d 878, 888. 
A freehold estate in lands, held of a superior lord, as a 
reward for services, and on condition of rendering some 
service in return for it. The true meaning of the word 
"fee" is the same as that of "feud" or "fief," and in its 
original sense it is taken in contradistinction to "allodi
um," which latter is defined as a man's own land, which 
he. possesses merely in his 'own right, without owing any 
rent or service to any superior. 2 Bl.Comm. 105. 
In modern English tenures, "fee" signifies an estate of 
inheritance, being the highest and most extensive inter
est which a man can have in a feud; and when the term 
is used simply, without any adjunct, or in the form 
"fee-simple," it imports an absolute inheritance clear of 
any condition, limitation, or restriction to particular 
heirs, but descendible to the heirs general, male or 
female, lineal or collateral. 2 Bl.Comm. 106. 
Base fee. A determinable or qualified fee; an estate 
having the nature of a fee, but not a fee simple absolute. 
Conditional fee. An estate restrained to some particu
lar heirs, exclusive of others, Blume v. Pearcy, 204 S.C. 
409, 29 S.E.2d 673, 674, as to the heirs of a man's body, 
by which only his lineal descendants were admitted, in 
exclusidn of collateral; or to the heirs male of his body, 
in exclusion of heirs female, whether lineal or collateral. 
It was called a "conditional fee," by reason of the condi
tion expressed or implied in the donation of it that, if 
the donee died without such particular heirs, the land 
should revert to the donor. The term includes a fee that 
is either to commence or determine on some condition; 
and is sometimes used interchangeably with "base fee," 
that is, one to determine or be defeated on the happen
ing of some contingent event or act. 
Determinable fee. Also called a "base" or "qualified" 
fee. One which has a qualification subjoined to it, and 
which must be determined whenever the qualification 
annexed to it is at an end. An estate in fee which is 
liable to be det�rmined by some act or event expressed 
on its limita�ion to circumscribe its continuance, or 
inferred by law as bounding its extent. An estate which 
may last forever is a "fee," but if it may end on the 
happening of a merely possible event, it is a "determin
able," or "qualified fee." 
Determinable fee or fee simple. Estate created with 
special limitation which delimits duration of estate in 
land. 
Fee damages. See Damages.

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615 
Fee expectant. A name sometimes applied to an estate 
created where lands are given to a man and his wife and 
the heirs of their bodies. See also Frank-marriage. 
Fee simple. See Fee simple. 
Fee simple defeasible. Title created in trustees where 
legal title in fee simple to active trust estate is by will 
placed in trustees who are required to distribute proper
ty in fee simple upon happening of event. Also called a 
"determinable fee", "base fee", or "qualified fee". Ka
nawha Val. Bank v. Hornbeck, 151 W.Va. 308, 151 
S.E.2d 694, 700. 
Great fee. In feudal law, the designation of a fee held 
directly from the crown. 
Knight's fee. See Knig hts fee. 
Limited fee. An estate of inheritance in lands, which is 
clogged or confined with some sort of condition or quali
fication. Such estates are based on qualified fees, condi
tional fees, and fees-tail. The term is opposed to "fee
simple." 
Plowman's fee. In old English law, was a species of 
tenure peculiar to peasants or small farmers, somewhat 
like gavelkind, by which the lands descended in equal 
shares to all the sons of the tenant. 
Qualified fee. In English law, a fee having a qualifica
tion subjoined thereto, and which must be determined 
whenever the qualification annexed to it is at an end; 
otherwise termed a "base fee." An interest which may 
continue forever, but is liable to be determined, without 
the aid of a conveyance, by some act or event, circum
scribing its continuance or extent. An interest given to 
a man and certain of his heirs at the time of its limita
tion. 
Quasi fee. An estate gained by wrong. 
Feed. To lend additional support; to strengthen ex post 
facto. Similarly, a subsequent title acquired by the 
mortgagor is said "to feed the mortgage." 
Feeder organization. An entity that carries on a trade 
or business for the benefit of an exempt organization. 
However, such a relationship does not result in the 
feeder organization itself being tax-exempt. IRC § 502. 
Fee-farm. A species of tenure, where land is held of 
another in perpetuity at a yearly rent, without fealty, 
homage, or other services than such as are specially 
comprised in the feoffment. It corresponds very nearly 
to the "emphyteusis" of the Roman law. Fealty, how
ever, was incident to a holding in fee-farm, according to 
some authors. 
Fee-farm is where an estate in fee is granted subject 
to a rent in fee of at least one-fourth of the value of the 
lands at the time of its reservation. Such rent appears 
to be called "fee-farm" because a grant of lands reserv
ing so considerable a rent is indeed only letting lands to 
farm in fee-simple, instead of the usual method of life or 
years. Fee-farms are lands held in fee to render for 
them annually the true value, or more or less; so called 
because a farm rent is reserved upon a grant in fee. 
Such estates are estates of inheritance. They are 
FEE SIMPLE 
classed among estates in fee-simple. No reversionary 
interest remains in the lessor, and they are therefore 
subject to the operation of the legal principles which 
forbid restraints upon alienation in all cases where no 
feudal relation exists between grantor and grantee. 
Fee-farm rent. The rent reserved on granting a fee
farm. It might be one-fourth or one-third the value of 
the land. Fee-farm rent is a rent-charge issuing out of 
an estate in fee; a perpetual rent reserved on a convey
ance in fee-simple. 
Fee interest. See Fee; Fee simple; Fee tail. 
Fee simple. Typically, words "fee simple" standing 
alone create an absolute estate in devisee and such 
words followed by a condition or special limitation cre
ate a defeasible fee. Babb v. Rand, Me., 345 A.2d 496, 
498. 
Absolute. A fee simple absolute is an estate limited 
absolutely to a person and his or her heirs and assigns 
forever without limitation or condition. An absolute or 
fee-simple estate is one in which the owner is entitled to 
the entire property, with unconditional power of disposi
tion during one's life, and descending to one's heirs and 
legal representatives upon one's death intestate. Such 
estate is unlimited as to duration, disposition, and des
cendibility. Slayden v. Hardin, 257 Ky. 685, 79 S.W.2d 
11, 12. 
The estate which a man has where lands are given to 
him and to his heirs absolutely without any end or limit 
put to his estate. 2 Bl.Comm. 106. The word "fee," 
used alone, is a sufficient designation of this species of 
estate, and hence "simple" is not a necessary part of the 
title, but it is added as a means of clearly distinguishing 
this estate from a fee-tail or from any variety of condi
tional estates. Fee-simple signifies a pure fee; an abso
lute estate of inheritance clear of any condition or 
restriction to particular heirs, being descendible to the 
heirs general, whether male or female, lineal or collat
eral. It is the largest estate and most extensive interest 
that can be enjoyed in land. 
Conditional. Type of transfer in which grantor conveys 
fee simply on condition that something be done or not 
done. A defeasible fee which leaves grantor with right 
of entry for condition broken, which right may be exer
cised by some action on part of grantor when condition 
is breached. 
At common law an estate in fee simple conditional 
was a fee limited or restrained to some particular heirs, 
exclusive of others. But the statute "De donis" convert
ed all such estates into estates tail. 2 Bl.Comm. 110. 
Defeasible. Type of fee grant which may be defeated on 
the happening of an event. An estate which may last 
forever, but which may end upon the occurrence or 
nonoccurrence of a specified event, is a "fee simple 
defeasible". Newbern v. Barnes, 3 N.C.App. 521, 165 
S.E.2d 526, 530. 
Determinable. A "fee simple determinable" is created 
by conveyance which contains words effective to create a 
fee simple and, in addition, a provision for automatic

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FEE SIMPLE 
expiration of estate on occurrence of stated event. Se
lectmen of Town of Nahant v. U. S., D.C.Mass., 293 
F.Supp. 1076, 1978. 
Fee simple title. See Fee simple. 
Fee splitting. Division of legal fees between attorney 
who handles matters and attorney who referred such to 
him or her. Referrals commonly occur when referring 
attorney lacks expertise, or experience to effectively 
handle the particular matter. 
Fee tail. A freehold estate in which there is a fixed line 
of inheritable succession limited to the issue of the body 
of the grantee or devisee, and in which the regular and 
general succession of heirs at law is cut off. Coleman v. 
Shoemaker, 147 Kan. 689, 78 P.2d 905, 907. 
An estate tail; an estate of inheritance given to a man 
and the heirs of his body, or limited to certain classes of 
particular heirs. It corresponds to the feudum tallia
tum of the feudal law, and the idea is believed to have 
been borrowed from the Roman law, where, by way of 
fidei commissa, lands might be entailed upon children 
and freedmen and their descendants, with restrictions as 
to alienation. For the varieties and special characteris
tics of this kind of estate, see Tail, Estate in. 
Fegangi If:lgamjay/. In olG �nglish law, a thief caught 
while escaping with the stolen goods in his possession. 
Fehmgerichte Ifeymg:lrikt:l/. The name given to cer
tain secret tribunals which flourished in Germany from 
the end of the twelfth century to the middle of the 
sixteenth, usurping many of the functions of the govern
ments which were too weak to maintain law and order, 
and inspiring dread in all who came within their juris
diction. Such a court existed in Westphalia (though 
with greatly diminished powers) until finally suppressed 
by Jerome Bonaparte in 181 1. 
Feigned Ifeynd/. Fictitious; pretended; supposititious; 
simulated. 
Feigned accomplice. One who pretends to consult and 
act with others in the planning or commission of a 
crime, but only for the purpose of discovering their 
plans and confederates and securing evidence against 
them. See Informer. 
Feigned action. An action, now obsolete, brought on a 
pretended right, when the plaintiff has no true cause of 
action, for some illegal purpose. In a feigned action the 
words of the writ are true. It differs from false action, 
in which case the words of the writ are false. See also 
Feigned issue. 
Feigned diseases. Simulated or pretended illness. Dis
eases are generally feigned from one of three causes,
fear, shame, or the hope of gain. 
Feigned issue. A proceeding, now obsolete, whereby 
parties, by consent, could have matter determined by 
jury without actually bringing action. See also Feigned 
action. 
FELA. See Federal Employer's Liability Act. 
616 
Felagus /f:lleyg:ls/. In Saxon law, one bound for another 
by oath; a sworn brother. A friend bound in the decen
nary for the good behavior of another. One who took 
the place of the deceased. Thus, if a person was mur
dered, the recompense due from the murderer went to 
the felagus of the slain, in default of parents or lord. 
Feld. A field; in composition, wild. 
Fele, feal. L. Fr. Faithful. See Feal. 
Fellatio, n. A sexual act in which the mouth or lips 
come into contact with the penis. See Sodomy. 
Fellow. A co-worker; a partaker or sharer of; a com
panion; one with whom we consort; one joined with 
another in some legal status or relation; a member of a 
college or corporate body. 
Fellow-heir. A co-heir; partner of the same inheri
tance. 
Fellow servant. One who works for and is controlled by 
the same employer; a co-worker. Walsh v. Eubanks, 
183 Ark. 34, 34 S.W.2d 762, 764. Those engaged in the 
same type of work, under the control of a common 
employer. Employees who derive authority and com
pensation from the same common employer, and are 
engaged in the same general business. Cactus Drilling 
Co. v. Williams, Tex.Civ.App., 525 S.W.2d 902, 910. 
When persons are employed and paid by the same 
employer, and their duties are such as to bring them 
into such relation that negligence of one in doing his 
work may injure other in performance of his, then they 
are engaged in the same common businesses, and are 
"fellow servants." See also Employee; Fellow servant 
rule. 
Fellow servant rule. A common law doctrine, now 
generally abrogated by workers' compensation acts and 
Federal Employers' Liability Act, that in an action for 
damages brought against an employer by an injured 
employee the employer may allege that the negligence 
of another fellow employee was partly or wholly respon
sible for the accident resulting in the injury and, thus 
reducing or extinguishing his own liability. 
Felo de se Ifelow diy siy/. Killing of self; suicide. 
Felon Ifel:ln/. Person who commits or has committed a 
felony (q.v.). 
Felonia If:l16wniY:l/. Felony. The act or offense by 
which a vassal forfeited his fee. Per feloniam, with a 
criminal intention. 
Felonia, ex vi termini, significat quodlibet capitale 
crimen felleo animo perpetratum I f:l16wniY:l , eks vay 
t�rm:lnay, s:lgnif:lkret kw6dl:lb:lt krep:lteyliy kraym:ln feli· 
yow ren:lmow p:lrp:ltreyt:lm/. Felony, by force of the 
term, signifies any capital crime perpetrated with a 
malignant mind. 
Felonia implicatur in qualibet proditione If:l16wniY:l 
impbkeyt:lr in kweybb:lt pr:ldishiy6wniy I. Felony is 
implied in every treason. 
Felonice If:l16wn:lsiy I. Feloniously.

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617 
Felonious If;lown(i)y;s/. A technical word of law which 
means done with intent to commit crime, i.e. criminal 
intent. Of the grade or quality of a felony, as, for 
example, a felonious assault (q.v.). Malicious; villai
nous; traitorous; malignant. Proceeding from an evil 
heart or purpose. Wickedly and against the admonition 
of the law; unlawfully. See also Felony; Feloniously. 
Felonious assault. Such an assault upon the person as, 
if consummated, would subject the party making it, 
upon conviction, to the punishment of a felony, that is, 
to imprisonment. Aggravated assault as contrasted 
with simple assault. See also Assault. 
Felonious entry. Type of statutory burglary. See Bur
glary. 
Felonious homicide. Killing of human being without 
justification or excuse. See Homicide; Manslaughter; 
Murder; Premeditation. 
Felonious intent. An act of the will in which one forms 
a desire to commit a felony. As applied to crime of 
larceny, the intent which exists where a person know
ingly takes and carries away the personal property of 
another without any claim or pretense of right with the 
intent wholly and permanently to deprive the owner of 
his property. State v. Perry, 21 N.C.App. 478, 204 
S.E.2d 889, 891. 
Feloniously. Of, pertaining to, or having, the quality of 
felony. Proceeding from an evil heart or purpose; done 
with a deliberate intention of committing a crime. 
Golden v. Commonwealth, 245 Ky. 19, 53 S.W.2d 185, 
186. Without color of right or excuse. Malignantly; 
maliciously. Acting with a felonious intent; i.e. acting 
with intent to commit a felony. See also Felonious. 
Felonious taking. As used in the crimes of larceny and 
robbery, it is the taking with intent to steal. 
Felony. A crime of a graver or more serious nature 
than those designated as misdemeanors; e.g., aggravated 
assault (felony) as contrasted with simple assault (misde
meanor). Under many state statutes, any offense pun
ishable by death or imprisonment for a term exceeding 
one year. See, e.g., Model Penal Code § 1.04(2); 18 
U .S.C.A. § 1. The federal and many state criminal 
codes define felony status crimes, and in turn also have 
various classes of felonies (e.g., Class A, B, C, etc.) or 
degrees (e.g., first, second, third) with varying sentences 
for each class. See, e.g., 18 U.S.C.A. § 3559; Model 
Penal Code § 6.01. 
At common law, an offense occasioning total forfeiture 
of either land or goods to which capital or other punish
ment might be superadded according to degree of guilt. 
At early common law the term was applied to describe 
the more serious offenses cognizable in the royal courts, 
conviction for which entailed forfeiture of life, limb and 
chattels and escheat of lands to the felon's lord after a 
year and a day in the king's hands. Subsequently, 
however, the classification was so greatly enlarged that 
many offenses not involving moral turpitude were in
cluded therein. In re Donegan, 282 N.Y. 285, 26 N.E. 
260, 261. This term meant originally the state of hav-
FEME SOLE TRADER 
ing forfeited lands and goods to the crown upon convic
tion for certain offenses, and then, by transition, any 
offense upon conviction for which such forfeiture fol
lowed, in addition to capital or any other punishment 
prescribed by law; as distinguished from a "misdemean
or," upon conviction for which no forfeiture followed. 
In feudal law, the term meant an act or offense on the 
part of the vassal, which cost him his fee, or in conse
quence of which his fee fell into the hands of his lord; 
that is, became forfeited. (See Felonia.) Perfidy, ingrati
tude, or disloyalty to a lord. 
Felony, compounding of See Compounding crime. 
Forcible felony. Forcible felony includes any treason, 
murder, voluntary manslaughter, rape, robbery, burgla
ry, arson, kidnapping, aggravated battery, aggravated 
sodomy and any other felony which involves the use or 
threat of physical force or violence against any person. 
Misprision of felony. See Misprision. 
Reducible felony. A felony upon conviction of which the 
offender may be punished as for a misdemeanor, upon 
recommendation of the jury. 
Felony murder doctrine. At common law, one whose 
conduct brought about an unintended death in the com
mission or attempted commission of a felony was guilty 
of murder (e.g. a homicide committed during an armed 
robbery). While some states still follow the common law 
rule, today the law of felony murder varies substantially 
throughout the country, largely as a result of efforts to 
limit the scope of the rule. Jurisdictions have limited 
the rule in one or more of the following ways: (1) by 
permitting its use only as to certain types of felonies; (2) 
by more strict interpretation of the requirement of prox
imate or legal cause; (3) by a narrower construction of 
the time period during which the felony is in the process 
of commission; (4) by requiring that the underlying 
felony be independent of the homicide. See e.g. Model 
Penal Code § 210.2. 
Female. The sex which conceives and gives birth to 
young. Also a member of such sex. The term is gener
ic, but may have the specific meaning of "woman," if so 
indicated by the context. 
Feme, femme Ifem/. L. Fr. A woman. Also, a wife, as 
in the phrase "baron et feme". 
Feme covert Ifem k�v;}rt/. A married woman. Gener
ally used in reference to the former legal disabilities of a 
married woman, as compared with the condition of a 
feme sole. 
Feme sole Ifem sowl!. A single woman, including those 
who have been married, but whose marriage has been 
dissolved by death or divorce, and, for most purposes, 
those women who are judicially separated from their 
husbands. 
Feme sole trader Ifem sowl treyd;}r/. In old English 
law, a married woman, who, by the custom of London, 
trades on her own account, independently of her hus
band; so called because, with respect to her trading, she 
is the same as a feme sole. The term is applied also to

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FEME SOLE TRADER 
women deserted by their husbands, who do business as 
femes sole. 
Femicide /fem::lsayd/. The killing of a woman. One 
who kills a woman. 
Feminine Ifem::ln::ln/. Of or belonging to females. 
Femme couleur libre Ifam kuwl�r liybr::l/. Up to the 
time of Civil War, term applied to all persons not of the 
white race, including Indians. 
Fence, n. A hedge, structure, or partition, erected for 
the purpose of inclosing a piece of land, or to divide a 
piece of land into distinct portions, or to separate two 
contiguous estates. An enclosure about a field or other 
space, or about any object; especially an enclosing struc
ture of wood, iron or other materials, intended to pre
vent intrusion from without or straying from within. 
A colloquial characterization of a receiver of stolen 
property; one who receives and sells stolen goods. See 
Receiving stolen goods or property. 
Fence county. A county where the stock law has not 
been adopted. McKenzie v. Powell, 68 Ga.App. 285, 22 
S.E.2d 735, 736. 
Fence-month, or defense-month. In old English law, a 
period of time, occurring in the middle of summer, 
during which it was unlawful to hunt deer in the forest, 
that being their fawning season. Probably so called 
because the deer were then defended from pursuit or 
hunting. 
Fencing patents. Patents procured in an effort to 
broaden the scope of the invention beyond the article or 
process which is actually intended to be manufactured 
or licensed. Special Equipment Co. v. Coe, 79 U.S.App. 
D.C. 133, 144 F.2d 497, 499. 
Feneration Ifen::lreysh::ln/. Usury; the gain of interest; 
the practice of increasing money by lending. Sometimes 
applied to interest on money lent. See Interest. 
Fengeld Ifengeld/. In Saxon law, a tax or imposition, 
exacted for the repelling of enemies. 
Fenian lfiyniY::ln/. A champion, hero, giant. This word, 
in the plural, is generally used to signify invaders or 
foreign spoilers. A member of an organization of per
sons of Irish birth, resident in the United States, Cana
da, and elsewhere, having for its aim the overthrow of 
English rule in Ireland. 
Feod Ifyuwd/. The same as feud or fief 2 Bl.Comm. 45. 
Feodal IfyUwd::ll/. Belonging to a fee or feud; feudal. 
More commonly used by the old writers than feudal. 
Feodal actions Ifyuwd�l reksh�nz/. Real actions. 3 
Bl.Comm. 117. 
Feodality /fyuwdrel�diy/. Fidelity or fealty. See Fealty. 
Feodal system IfyUwd�l sist�m/. See Feudal system. 
Feodarum (or feudaram) consuetudines IfyUwder�m 
konsw�t(y)uwd�niyz/. The customs of feuds. The name 
of a compilation of felidal laws and customs made at 
Milan in the twelfth century. It is the most ancient 
618 
work on the subject, and was always regarded, on the 
continent of Europe, as possessing the highest authority. 
Feodary /fyUwd�riy/. In England, an officer of the 
court of wards, appointed by the master of that court, 
under 32 Hen. VIII, c. 26, whose business it was to be 
present with the escheator in every county at the find
ing of offices of lands, and to give evidence for the king, 
as well concerning the value as the tenure; and his 
office was also to survey the land of the ward, after the 
office found, and to rate it. He also assigned the king's 
widows their dower; and received all the rents, etc. 
Feodatory, or feudatory /fyuwd::lt(�)riy/. In feudal law, 
the grantee of a feod, feud, or fee; the vassal or tenant 
who held his estate by feudal service. Blackstone uses 
"feudatory." 2 Bl.Comm. 46. 
Feodi firma /fyUwday f�rm�/. In old English law, fee
farm (q.v.). 
Feodi firmarius IfyUwday f::lrmeriy�s/. The lessee of a 
fee-farm. 
Feodum /fyuwd�m/. This word (meaning a feud or fee) 
is the one most commonly used by the older English 
law-writers, though its equivalent, "feudum" (q.v.), is 
used generally by the more modern writers and by the 
feudal law-writers. There were various classes of feoda, 
among which may be enumerated the following: Feo
dum laicum, a lay fee. Feodum militare, a knight's fee. 
Feodum improprium, an improper or derivative fee. 
Feodum proprium, a proper and original fee, regulated 
by the strict rules of feudal succession and tenure. 
Feodum simplex, a simple or pure fee; fee-simple. Feo
dum talliatum, a fee-tail. 
In old English law, a seigniory or jurisdiction. A fee, 
a perquisite or compensation for a service. 
Feodum antiquum /fyuwd�m rentaykw�m/. A feud 
which devolved upon a vassal from his intestate ances
tor. 
Feodum est quod quis tenet ex quacunque causa sive 
sit tenementum sive redditus Ifyuwd::lm est kwod kwis 
ten::lt eks kweyk�1Jkwiy k6z� sayviy sit ten::lment�m say
viy red::lt�s/. A fee is that which any one holds from 
whatever cause, whether tenement or rent. 
Feodum nobile /fyuwd�m n6wb�liy/. A fief for which 
the tenant did guard and owed homage. 
Feodum novum /fyuwd::lm n6wv�m/. A feud acquired 
by a vassal himself. 
Feodum simplex quia feodum idem est quod hreredi
tas, et simplex idem est quod legitimum vel purum; 
et sic feodum simplex idem est quod hrereditas legi
tima vel hrereditas pura IfyUwd::lm simpleks kway� 
fyuwd�m ayd�m est kwod h�red�tres, et simpleks ayd�m 
est kwod l::ljid::lm�m vel pyUr::lm; et sik fyUwd�m sim
pleks ayd�m est kwOd h�red�tres bjit�m� vel h�red�tres 
pyUr�/. A fee-simple, so called because fee is the same 
as inheritance, and simple is the same as lawful or pure; 
and thus fee-simple is the same as a lawful inheritance, 
or pure inheritance.

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619 
Feodum talliatum, i.e., hrereditas in quandam certitu
dinem limitata Ifyliwd;)m treliyeyd;)m, id est, 
h;)riyd;)tres in kwond;)m S;}rt;)t(y)uwd;)n;)m lim;)teyt;)I . 
Fee-tail, i.e., an inheritance limited in a definite descent. 
Feoffamentum lfiy(;))f;)ment;)m/. A feoffment. 
Feoffare lfiy(;))feriy I. To enfeoff; to bestow a fee. The 
bestower was called "feoffator," and the grantee or 
feoffee, "feoffatus. " 
Feoffator lfiy(;))feyt;)r/. In old English law, a feoffer or 
feoffor; one who gives or bestows a fee; one who makes 
a feoffment. 
Feoffatus lfiy(;))feyt;)s/. In old English law, a feoffee; 
one to whom a fee is given, or a feoffment made. 
Feoffee If;)fiy/fiyfiy/. He to whom a fee is conveyed. 
Feoffee to uses If;)fiy t;) yliws;)z/fiyfiyo I. A person to 
whom land was conveyed for the use of a third party. 
(The latter was called "cestui que use.") One holding 
the same position with reference to a use that a trustee 
does to a trust. He answers to the hreres fiduciarius of 
the Roman law. 
Feoffment Ifefm;)nt/fiyf" I. The gift of any corporeal 
hereditament to another, operating by transmutation of 
possession, and requiring, as essential to its completion, 
that the seisin be passed, which might be accomplished 
either by investiture or by livery of seisin. A gift of a 
freehold interest in land accompanied by livery of seisin. 
The essential part is the livery of seisin. Also the deed 
or conveyance by which such corporeal hereditament is 
passed. 
A feoffment originally meant the grant of a feud or 
fee; that is, a barony or knight's fee, for which certain 
services were due from the feoffee to the feoffor. By 
custom it came afterwards to signify also a grant (with 
livery of seisin) of a free inheritance to a man and his 
heirs, referring rather to the perpetuity of the estate 
than to the feudal tenure. It was for ages the only 
method (in ordinary use) for conveying the freehold of 
land in possession, but has now fallen in great measure 
into disuse, even in England, having been almost entire
ly supplanted by some of that class of conveyances 
founded on the statute law of the realm. 
Feoffment to uses /fefm;)nt t;) yliws;)z/fiyf" I. A feoff
ment of lands to one person to the use of another. In 
such case the feoffee was bound in conscience to hold the 
lands according to the use, and could himself derive no 
benefit. Sometimes such feoffments were made to the 
use of the feoffer. The effect of such conveyance was 
entirely changed by the statute of uses. 
Feoffment with livery of seisin. An early English 
method of conveyance by which the transferor met the 
transferee at or near the land to be transferred and 
handed over a twig or clod while reciting to witnesses 
that the transfer was being made. 
Feoffor Ifef;)r/fiyf;)r/. The person making a feoffment, 
or enfeoffing another in fee. 
Feoh lfiy/. This Saxon word meant originally cattle, 
and thence property or money, and, by a second transi-
FERME 
tion, wages, reward, or fee. It was probably the original 
form from which the words "feod," "feudum," "fief," 
"f eu," and "fee" (all meaning a feudal grant of land) 
have been derived. 
Feorme Iff,rm/. A certain portion of the produce of the 
land due by the grantee to the lord according to the 
terms of the charter. 
Ferre bestire lfiriy bestiyiy/. Wild beasts. 
Ferre naturre lfiriy n;)tyuriy/. Lat. Of a wild nature or 
disposition. Animals which are by nature wild are so 
designated, by way of distinction from such as are natu
rally tame, the latter being called "domitre naturre." 
FERC. See Federal Energy Regulatory Commission. 
Ferdella terrre /f;)rdel;) tehriy I. A fardel-Iand; ten 
acres; or perhaps a yard-land. 
Ferdfare. Sax. A summons to serve in the army. An 
acquittance from going into the army. 
Ferdingus. A term denoting, apparently, a freeman of 
the lowest class, being named after the cotseti. 
Ferdwite. In Saxon law, an acquittance of manslaugh
ter committed in the army; also a fine imposed on 
persons for not going forth on a military expedition. 
Feria lfiriy;)/. In old English law, a weekday; a holiday; 
a day on which process could not be served; a fair; a 
ferry. 
Ferire lfiriyiy/. In Roman law, holidays; generally 
speaking, days or seasons during which free-born Ro
mans suspended their political transactions and their 
lawsuits, and during which slaves enjoyed a cessation 
from labor. 
All ferire were thus dies nefasti. All ferire were divid
ed into two classes,-,,{ erire publicre" and "ferire pri
vatre." The latter were only observed by single families 
or individuals, in commemoration of some particular 
event which had been of importance to them or their 
ancestors. 
Numerous festivals were called by this name in the 
early Roman empire. In the later Roman empire the 
single days occurring at intervals of a week apart, com
mencing with the seventh day of the ecclesiastical year, 
were so called. 
Ferial days /firiy;)l deyz/. Originally and properly, days 
free from labor and pleading; holidays. 
Ferita /fehr;)d;)/. In old European law, a wound; a 
stroke. 
Ferling /ff,rlilJ/. In old records, the fourth part of a 
penny; also the quarter of a ward in a borough. 
Ferlingata If;}rlilJgeyt;)/. A fourth part of a yard-land. 
Ferlingus, or ferlingum Iff,rlilJg;)S, ff,rlilJg;)m/. A fur
long. 
Ferm, or fearm /ff,rm, farm I . A house or land, or both, 
let by lease. 
Ferme Iff,rm, farm/. A farm; a rent; a lease; a house 
or land, or both, taken by indenture or lease.

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FERMENTATION 
Fermentation. A decomposition produced in an organic 
substance by the physiological action of a living organ
ism, or by certain unorganized agents. 
Fermented liquors. Beverages produced by, or which 
have undergone, a process of alcoholic fermentation, to 
which they owe their intoxicating properties, including 
beer, wine, hard cider, and the like, but not spirituous or 
distilled liquors. 
Fermer, fermor If�rm;)r, farm;)r/. A lessee; a farmer. 
One who holds a term, whether of lands or an incorpore
al right, such as customs or revenue. 
Fermier Ifermyey/. In French law, one who farms any 
public revenue. 
Fermisona. In old English law, the winter season for 
killing deer. 
Fermory If�rm;)riy, farm;)riy I. In old records, a place in 
monasteries, where they received the poor (hospicio exci
piebant), and gave them provisions (ferm, firma). Hence 
the modern infirmary, used in the sense of a hospital. 
Fernigo. In old English law, a waste ground, or place 
where fern grows. 
Ferrator. A farrier (q.v.). 
Ferri Ifehray/. In the civil law, to be borne; that is on 
or about the person. This was distinguished from por
tari (to be carried), which signified to be carried on an 
animal. 
Ferriage Ifehriy;)j/. The toll or fare paid for the trans
portation of persons and property across a ferry. Liter
ally speaking, it is the price or fare fixed by law for the 
transportation of the traveling public, with such goods 
and chattels as they may have with them, across a river, 
bay, or lake. 
Ferry. Commercial transportation of people, vehicles, 
goods, etc. across body of water. Also, boat or vessel 
used in such transportation. In law it is treated as a 
franchise, and defined as the exclusive right to carry 
passengers and freight across a river, lake or arm of the 
sea, or to connect a continuous line of road leading from 
one side of the water to the other. Canadian Pac. Ry. 
Co. v. U. S., C.C.A.Wash., 73 F.2d 831, 832. 
A continuation of the highway from one side of the 
water over which it passes to the other, for transporta
tion of passengers or of travelers with their vehicles and 
such other property as they may carry or have with 
them. U. S. v. Puget Sound Nav. Co., D.C.Wash., 24 
F.Supp. 431, 432. 
A liberty to have a boat on a stream, river, arm of the 
sea, lake, or other body of water for the transportation 
of passengers and vehicles with their contents, for a 
reasonable toll. Sometimes limited to the landing place. 
State Highway Commission v. Smith, 250 Ky. 269, 62 
S.W.2d 1044. 
Whether a boat is a "ferry" and comprises a continu
ous part of the road or highway depends on length of 
run, type of ship, whether it was operated under state 
franchise or federal certificate of convenience, whether 
it was equipped to carry cargo, extent to which service 
620 
to passengers is emphasized and extent to which its use 
is necessitated by lack of land transportation. Alaska S. 
S. Co. v. Federal Maritime Commission, C.A.Wash., 399 
F.2d 623, 628. 
A public ferry is one to which all the public have the 
right to resort, for which a regular fare is established, 
and the ferryman is a common carrier, bound to take 
over all who apply, and bound to keep his ferry in 
operation and good repair. 
A private ferry is one mainly for the use of the owner, 
and though he may take pay for ferriage, he does not 
follow it as a business. His ferry is not open to the 
public at its demand, and he may or may not keep it in 
operation. 
Ferry franchise. The public grant of a right to main
tain a ferry at a particular place; a right conferred to 
land at a particular point and secure toll for the trans
portation of persons and property from that point across 
the stream. A grant to a named person empowering 
him to continue an interrupted land highway over the 
interrupting waters. U. S. v. Puget Sound Nav. Co., 
D.C.W ash., 24 F.Supp. 431, 432. 
Ferryman. One employed in taking persons across a 
lake, river or stream, in boats or other vessels, at a 
ferry. 
Festa in cappis Ifest;) in krep;)s/. In old English law, 
grand holidays, on which choirs wore caps. 
Festinatio justitire est noverca infortunii Ifes
t;)neysh(iy)ow j;)stishiyiy est n;)v�rb infortyuwni
yay I. Hasty justice is the stepmother of misfortune. 
Festing-man. In old English law, a bondsman; a surety; 
a frank-pledge, or one who was surety for the good 
behavior of another. Monasteries enjoyed the privilege 
of being "free from festing-men," which means that they 
were "not bound for any man's forthcoming who should 
transgress the law." See Frank-pledge. 
Festing-penny. Earnest given to servants when hired or 
retained. 
Festinum remedium Ifest;)n;)m r;)miydiy;)m/. Lat. A 
speedy remedy. A term applied to those cases where 
the remedy for the redress of an injury is given without 
any unnecessary delay. The action of dower is festinum 
remedium. The writ of assise was also thus character
ized (in comparison with the less expeditious remedies 
previously available) by the statute of Westminster 2 (13 
Edw. I, c. 24.) 
Festuca Ifestyuwk;)/. In Frankish law, a rod or staff or 
(as described by other writers) a stick, on which impreca
tory runs were cut, which was used as a gage or pledge 
of good faith by a party to a contract, or for symbolic 
delivery in the conveyance or quit-claim of land, before a 
court of law, anterior to the introduction of written 
documents by the Romans. 
Festum Ifest;)m/. A feast, holiday, or festival. Festum 
stultorum Ifest;)m st�lt6r;)m/, the feast of fools. 
Fetal death. The death of a child not yet born. Death 
in utero of a fetus weighing 500 grams or more. This

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621 
weight corresponds roughly to a fetus of twenty weeks 
or more (gestational age), i.e. a viable fetus. 
Death is defined in the following context: after expul
sion, the fetus does not breathe or show any other 
evidence of life, such as the beating of the heart, pulsa
tion of the umbilical cord, or definite movement of 
voluntary muscles. 
Feticide lfiyt:lsayd/. Destruction of the fetus; the act 
by which criminal abortion is produced. The killing of 
an unborn child. State v. Horne, 282 S.C. 444, 319 
S.E.2d 703, 704. See also Abortion; Prolicide. 
Fettering. The act of shackling or placing manacles on 
another. 
Fetters Ifet:lrz/. Chains or shackles for the feet; irons 
used to secure the legs of convicts, unruly prisoners, etc. 
Similar chains securing the wrists are called "hand
cuffs". 
Fetus lfiyt:ls/. An unborn child. The unborn offspring 
of any viviparous animal; specifically the unborn off
spring in the post embryonic period after major struc
tures have been outlined (in man from seven or eight 
weeks after fertilization until birth). 
Feud. Feudal law. An estate in land held of a superior 
on condition of rendering him services. 2 Bl.Comm. 105. 
An inheritable right to the use and occupation of lands, 
held on condition of rendering services to the lord or 
proprietor, who himself retains the property in the 
lands. 
In this sense the word is the same as "feod", "feo
dum", "feudum", "fief', or "fee". 
Saxon and old German law. An enmity, or species of 
private war, existing between the family of his slayer. 
In Scotland and the north of England, a combination of 
all the kin to revenge the death of any of the blood upon 
the slayer and all his race. See Faida. 
Feuda Ifyuwd:l/. Feuds or fees. 
Feudal Ifyuwd:ll/. Pertaining to feuds or fees; relating 
to or growing out of the feudal system or feudal law; 
having the quality of a feud, as distinguished from 
"allodial." 
Feudal actions. An ancient name for real actions, or 
such as concern real property only. 3 Bl.Comm. 117. 
Feudal courts. In the 12th century a lord qua lord had 
the right to hold a court for his tenants. In the 13th 
century, they became of less importance for three rea
sons: The feudal principle would have led to a series of 
courts one above the other, and the dominions of the 
large landowners were usually scattered, so that great 
feudal courts became impossible. The growth of the 
jurisdiction of the king's court removed the necessity for 
feudal courts. All the incidents of the feudal system 
came to be regarded in a commercial spirit-as property. 
Its jurisdiction became merely appendant to landown
ing. 
Feudalism. The feudal system; the aggregate of feudal 
principles and usages. The social, political, and econom-
FEUDAL SYSTEM 
ic system that dominated the major European nations 
between the ninth and fifteenth centuries. The system 
was based upon a servile relationship between a "vas
sal" and a "lord." The vassal paid homage and service 
to the lord and the lord provided land and protection to 
the vassal. See also Feudal system. 
Feudalize Ifyu.wd:llayz/. To reduce to a feudal tenure; 
to conform to feudalism. 
Feudal law. The body of jurisprudence relating to 
feuds; the real-property law of the feudal system; the 
law anciently regulating the property relations of lord 
and vassal, and the creation, incidents, and transmission 
of feudal estates. 
The body of laws and usages constituting the "feudal 
law" was originally customary and unwritten, but a 
compilation was made in the twelfth century, called 
"Feodarum Consuetudines," which has formed the basis 
of later digests. The feudal law prevailed over Europe 
from the twelfth to the fourteenth century, and was 
introduced into England at the Norman Conquest, 
where it formed the entire basis of the law of real 
property until comparatively modern times. Survivals 
of the feudal law, to the present day, so affect and color 
that branch of jurisprudence as to require a certain 
knowledge of the feudal law in order to better compre
hend modern tenures and rules of real-property law. 
See also Feudal system. 
Feudal possession. The equivalent of "seisin" under 
the feudal system. 
Feudal system. The system of feuds. A political and 
social system which prevailed throughout Europe during 
the eleventh, twelfth, and thirteenth centuries, and is 
supposed to have grown out of the peculiar usages and 
policy of the Teutonic nations who overran the conti
nent after the fall of the Western Roman Empire, as 
developed by the exigencies of their military domina
tion, and possibly furthered by notions taken from the 
Roman jurisprudence. 
It was introduced into England, in its completeness, 
by William I, A.D. 1085, though it may have existed in a 
rudimentary form among the Saxons before the Con
quest. It formed the entire basis of the real-property 
law of England in medieval times; and survivals of the 
system, in modern days, so mod ify and color that branch 
of jurisprudence, both in England and America, that 
many of its principles require for their complete under
standing a knowledge of the feudal system. The feudal 
system originated in the relations of a military chieftain 
and his followers, or king and nobles, or lord and vas
sals, and especially their relations as determined by the 
bond established by a grant of land from the former to 
the latter. From this it grew into a complete and 
intricate complex of rules for the tenure and trans
mission of real estate, and of correlated duties and 
services; while, by tying men to the land and to those 
holding above and below them, it created a close-knit 
hierarchy of persons, and developed an aggregate of 
social and political institutions.

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FEUDAL TENURES 
Feudal tenures. The tenures of real estate under the 
feudal system, such as knight-service, socage, villenage, 
etc. 
Feudary Ifyuwd�riy/. A tenant who holds by feudal 
tenure (also spelled "feodatory" and "feudatory"). Held 
by feudal service. Relating to feuds or feudal tenures. 
Feudbote IfyUwdbowt/. A recompense for engaging in a 
feud, and the damages consequent, it having been the 
custom in ancient times for all the kindred to engage in 
their kinsman's quarrel. 
Feude Ifyuwd/. An occasional early form of "feud" in 
the sense of private war or vengeance. See Feud. 
Feudist Ifyuwd�stl. A writer on feuds, as Cujacius. 
Feudo IfeyUwdow/. In Spanish law, feud or fee. 
Feudorum liber Ifyuwd6r�m layb�r/. The Books of 
Feuds. A compilation of feudal law, prepared by order 
of the emperor Frederick I, and published at Milan in 
1170. It comprised five books, of which only the first 
two are now extant with fragmentary portions of the 
others, printed at the end of modern editions of the 
Corpus Juris Civilis. 
Feudorum libri Ifyuwd6r�m laybray/. The Books of 
Feuds published during the reign of Henry III, about the 
year 1152. The particular customs of Lombardy as to 
feuds began about the year 1152 to be the standard of 
authority to other nations by reason of the greater 
refinement with which that branch of learning had been 
there cultivated. This compilation was probably known 
in England, but does not appear to have had any other 
effect than to influence English lawyers to the more 
critical study of their own tenures, and to induce them 
to extend the learning of real property so as to embrace 
more curious matter of similar kind. 
Feudum Ifyuwd�m/. L. Lat. A feud, fief, or fee. A 
right of using and enjoying forever the lands of another, 
which the lord grants on condition that the tenant shall 
render fealty, military duty, and other services. It is 
not properly the land, but a right in the land. 
This form of the word is used by the feudal writers. 
The earlier English writers generally prefer the form 
feodum. There was an older word feum. Its use by the 
Normans is exceedingly obscure. "Feudal" was not in 
their vocabulary. Usually it denoted a stretch of land, 
rarely a tenure or mass of rights. It came to be applied 
to every person who had heritable rights in land. 
Feudum antiquum Ifyuwd�m rentaykw�m/. An ancient 
feud or fief; a fief descended to the vassal from his 
ancestors. 2 Bl.Comm. 212, 221. A fief which ancestors 
had possessed for more than four generations. 
Feudum apertum Ifyuwd�m �p;)rt�m/. An open feud or 
fief; a fief resulting back to the lord, where the blood of 
the person last seised was utterly extinct and gone or 
where the tenant committed a crime, or gave other legal 
cause. 
Feudum francum Ifyuwd�m frreIJk�m/. A free feud. 
One which was noble and free from talliage and other 
622 
subsidies to which the plebeia feuda (vulgar feuds) were 
subject. 
Feudum hauberticum Ifyuwd�m hob;)rt�k�m/. A fee 
held on the military service of appearing fully armed at 
the ban and arriere ban. 
Feudum improprium IfyUwd�m impr6wpriy�m/. An 
improper or derivative feud or fief. 
Feudum individuum Ifyuwd�m ind�vidyuw�m/. An in
divisible or impartible feud or fief; descendible to the 
eldest son alone. 
Feudum laicum Ifyuwd�m ley�k�m/. A lay fee. 
Feudum ligium Ifyuwd�m lijiy�m/. A liege feud or fief; 
a fief held immediately of the sovereign; one for which 
the vassal owed fealty to his lord against all persons. 1 
Bl.Com m. 367. 
Feudum maternum Ifyuwd�m m�t;)rn�m/. A maternal 
fief; a fief descended to the feudatory from his mother. 
2 Bl.Comm. 212. 
Feudum militare IfyUwd�m mil�teriy/. A knight's fee, 
held by knight service and esteemed the most honorable 
species of tenure. 2 Bl.Comm. 62. 
Feudum nobile IfyUwd�m n6wb�liy/. A fee for which 
the tenant did guard and owed fealty and homage. 
Feudum novum Ifyuwd�m n6wv�m/. A new feud or 
fief; a fief which began in the person of the feudatory, 
and did not come to him by succession. 2 Bl.Comm. 212. 
Feudum novum ut antiquum Ifyuwd�m n6wv�m �t 
rentaykw�m/. A new fee held with the qualities and 
incidents of an ancient one. 2 Bl.Comm. 212. 
Feudum paternum Ifyuwd�m p�t;)rn�m/. A fee which 
the paternal ancestors had held for four generations. 
One descendible to heirs on the paternal side only. 2 
Bl.Comm. 223. One which might be held by males only. 
Feudum proprium Ifyuwd�m pr6wpriy�m/. A proper, 
genuine, and original feud or fief; being of a purely 
military character, and held by military service. 2 
Bl.Comm. 57, 58. 
Feudum talliatum IfyUwd�m treliyeyt�m/. A restricted 
fee. One limited to descend to certain classes of heirs. 
2 Bl.Comm. 112, note. 
Feu et lieu Ifyuw ey lyuw/ . Fr. In old French and 
Canadian law, hearth and home. A term importing 
actual settlement upon land by a tenant. 
Feu holding Ifyuw h6wldiIJ/. A holding by tenure of 
rendering grain or money in place of military service. 
Feum lfiy�m/. An older form of feudum. 
Few. Not many; of small number. U. S. v. Margolis, 
C.C.A.N.J., 138 F.2d 1002, 1003. An indefinite expres
sion for a small or limited number. Indicating a small 
number of units or individuals which constitute a whole. 
A relative term of great elasticity of meaning. 
Ff. A Latin abbreviation for "Fragmenta," designating 
the Digest or Pandects in the Corpus Ju ris Civilis of 
Justinian; so called because that work is made up of

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623 
fragments or extracts from the writings of numerous 
jurists. 
F.G.A. In marine insurance means: "Free from general 
average"; also, sometimes, "foreign general average." 
The precise meaning of this abbreviation must be gath
ered from the context. See Average; General average 
contribution. 
FHA. See Federal Housing Admin istration. 
FHLB. See Federal Home Loan Banks. 
FHLMC. See Federal Home Loan Mortgage Corporation. 
Fiancer. L. Fr. To pledge one's faith. 
Fianza lfiyans�/. Sp. In Spanish law, trust, confidence, 
and correlatively a legal duty or obligation arising 
therefrom. The term is sufficiently broad in meaning to 
include both a general obligation and a restricted liabili
ty under a single instrument. But in a special sense, it 
designates a surety or guarantor, or the contract or 
engagement of suretyship; the contract by which one 
person engages to pay the debt or fulfil the obligations 
of another if the latter should fail to do so. 
Fiat Ifayret, fay�tI. (Lat. "Let it be done.") In old 
English practice, a short order or warrant of a judge or 
magistrate directing some act to be done; an authority 
issuing from some competent source for the doing of 
some legal act. 
One of the proceedings in the English bankruptcy 
practice, being a power, signed by the lord chancellor, 
addressed to the court of bankruptcy, authorizing the 
petitioning creditor to prosecute his complaint before it. 
By the statute 12 & 13 Vict., c. 116, fiats were abolished. 
Arbitrary or authoritative order or decision. 
Jo int fiat. In old English law, a fiat in bankruptcy, 
issued against two or more trading partners. 
Fiat justitia Ifay�t j�stish(iy)�/. Let justice be done. On 
a petition to the king for his warrant to bring a writ of 
error in parliament, he writes on the top of the petition, 
"Fiat justitia, " and then the writ of error is made out, 
etc. 
Fiat justitia, ruat crelum Ifay�t j�stish(iy)�, ruw�t 
siyl�m/. Let right be done, though the heavens should 
falL 
Fiat money. Paper currency not backed by gold or 
silver. 
Fiat prout fieri consuevit (nil temere novandum) 
Ifay�t prow�t fay�ray k�nswiyv�t, nil tem�riy 
n�vrend�ml . Let it be done as it hath used to be done 
(nothing must be rashly innovated). 
Fiat ut petitur Ifay�d �t pet�t�r/. Let it be done as it is 
asked. A form of granting a petition. 
Fiaunt Ifayontl. An order; command. See Fiat. 
FICA. Federal Insurance Contributions Act (q. v.). The 
law that sets "Social Security" taxes and benefits. 
Fictio lfiksh(iy)ow/. In Roman law, a fiction; an as
sumption or supposition of the law. Such was properly 
FICTION OF LAW 
a term of pleading, and signified a false averment on the 
part of the plaintiff which the defendant was not al
lowed to traverse; as that the plaintiff was a Roman 
citizen, when in truth he was a foreigner. The object of 
the fiction was to give the court jurisdiction. 
Fictio cedit veritati. Fictio juris non est ubi veritas 
lfiksh(iy)ow siyd�t vehr�teytay. fiksh(iy)ow jur�s non 
est yUwbay vehr�tres/. Fiction yields to truth. Where 
there is truth, fiction of law exists not. 
Fictio est contra veritatem, sed pro veritate habetur 
lfiksh(iy)ow est kontr� vehr�teyt�m, sed prow vehr�tey
tiy h�biyd�r/. Fiction is against the truth, but it is to be 
esteemed truth. 
Fictio juris non est ubi veritas lfiksh(iy)ow jur�s non 
est yuwbay vehr�tres/. Where truth is, fiction of law 
does not exist. 
Fictio legis inique operatur alicui damnum vel inju
riam lfiksh(iy)ow liyj�s in�kwiy op�reyt�r rebk(yuw)ay 
dremn�m vel injuriy�m/. A legal fiction does not prop
erly work loss or injury. Fiction of law is wrongful if it 
works loss or injury to anyone. 
Fictio legis neminem lredit lfiksh(iy)ow liyj�s nem�n�m 
liyd�tI. A fiction of law injures no .one. 3 BLComm. 43. 
Fiction of law. An assumption or supposition of law 
that something which is or may be false is true, or that 
a state of facts exists which has never really taken 
place. An assumption, for purposes of justice, of a fact 
that does not or may not exist. A rule of law which 
assumes as true, and will not allow to be disproved, 
something which is false, but not impossible. Ryan v. 
Motor Credit Co., 30 N.J.Eq. 531, 23 A.2d 607, 621. 
These assumptions are of an innocent or even benefi
cial character, and are made for the advancement of the 
ends of justice. They secure this end chiefly by the 
extension of procedure from cases to which it is applica
ble to other cases to which it is not strictly applicable, 
the ground of inapplicability being some difference of an 
immaterial character. 
See also Legal fiction. 
Estoppels distinguished. Fictions are to be distin
guished from estoppels; an estoppel being the rule by 
which a person is precluded from asserting a fact by 
previous conduct inconsistent therewith on his own part 
or the part of those under whom he claims, or by an 
adjudication upon his rights which he cannot be allowed 
to question. 
Presumptions distinguished. Fictions are to be distin
guished from presumptions of law. By the former, 
something known to be false or unreal is assumed as 
true; by the latter, an inference is set up, which may be 
and probably is true, but which, at any rate, the law will 
not permit to be controverted. It may also be said that 
a presumption is a rule of law prescribed for the purpose 
of getting at a certain conclusion, though arbitrary, 
where the subject is intrinsically liable to doubt from 
the remoteness, discrepancy, or actual defect of proofs.

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FICTITIOUS 
Fictitious. Founded on a fiction; having the character 
of a fiction; pretended; counterfeit. Feigned, imagi
nary, not real, false, not genuine, nonexistent. Arbi
trarily invented and set up, to accomplish an ulterior 
object. 
Fictitious action. An action brought for the sole pur
pose of obtaining the opinion of the court on a point of 
law, not for the settlement of any actual controversy 
between the parties. See Declaratory judgment; Feigned 
action; Feigned issue. 
Fictitious name. A counterfeit, alias, feigned, or pre
tended name taken by a person, differing in some essen
tial particular from his true name (consisting of Chris
tian name and patronymic), with the implication that it 
is meant to deceive or mislead. See also Alias. 
Fictitious payee. Negotiable instrument is drawn to 
fictitious payee whenever payee named in it has no right 
to it, and its maker does not intend that such payee 
shall take anything by it; whether name of payee used 
by maker is that of person living or dead or one who 
never existed is immaterial. Goodyear Tire & Rubber 
Co. of California v. Wells Fargo Bank & Union Trust 
Co., 1 Cal.App.2d 694, 37 P.2d 483. The test is not 
whether the named payee is "fictitious" but whether the 
signer intends that he shall have no interest in the 
instrument. U.C.C. § -3-405. 
Fictitious plaintiff. A person appearing in the writ, 
complaint, or record as the plaintiff in a suit, but who in 
reality does not exist, or who is ignorant of the suit and 
of the use of his name in it. It is a contempt of court to 
sue in the name of a fictitious party. 
Fictitious promise. See Promise. 
Fide-commissary Ifaydiy k6m�sehriy/. A term derived 
from the Latin "fidei-commissarius," and occasionally 
used by writers on equity jurisprudence as a substitute 
for the law French term "cestui que trust," as being 
more elegant and euphonious. See Brown v. Brown, 83 
Hun. 160, 31 N.Y.S. 650. 
Fidei-commissarius Ifaydiyay kom�seriy�sl. In the civ
il law, this term corresponds nearly to our "cestui que 
trust. " It designates a person who has the real or 
beneficial interest in an estate or fund, the title or 
administration of which is temporarily confided to an
other. 
Fidei-commissum Ifaydiyay k�mis�m/. In the civil law, 
a species of trust; being a gift of property (usually by 
will) to a person, accompanied by a request or direction 
of the donor that the recipient will transfer the property 
to another, the latter being a person not capable of 
taking directly under the will or gift. Elements of "fidei 
commissum" are that donee or legatee is invested with 
title and charged or directed to convey it to another or 
to make particular disposition of it. Succession of Abra
ham, La.App., 136 So.2d 471, 478. 
Fide-jubere Ifaydiy j�biriy I faydiy juwbiyz? faydiy 
juwbiyow I. In the civil law, to order a thing upon one's 
faith; to pledge one's self; to become surety for another. 
624 
Fide-jubes? Fide-jubeo: Do you pledge yourself? I do 
pledge myself. One of the forms of stipulation. 
Fide-jussio Ifaydiy j�sh(iy)ow/. An act by which any 
one binds himself as an additional security for another. 
This giving security does not destroy the liability of the 
principal, but adds to the security of the surety. 
Fide-jussor Ifaydiy j�s�r/. In Roman law, a guarantor; 
one who becomes responsible for the payment of anoth
er's debt, by a stipulation which binds him to discharge 
it if the principal debtor fails to do so. 3 Bl.Comm. 108. 
He differs from a co-obligor in this, that the latter is 
equally bound to a debtor, with his principal, while the 
former is not liable till the principal has failed to fulfil 
his engagement. The obligation of the fide-jussor was 
an accessory contract; for, if the principal obligation 
was not previously contracted, his engagement then took 
the name of mandate. The sureties taken on the arrest 
of a defendant, in the court of admiralty, were formerly 
denominated "fide jussors." 3 Bl.Comm. 108. 
Fidelitas If�diyl�tresl. Fealty; fidelity. See Fealty. 
Fidelitas. De nullo tenemento, quod tenetur ad ter
minum, fit homagii; fit tamen inde fidelitatis sacra
mentum If�del�tres. Diy n�low ten�mentow, kwod 
t�niyt�r red t�rm�n�m, fit h�meyjiyay; fit trem�n 
f�debteyt�s srekr�ment�m/. Fealty. For no tenement 
which is held for a term is there the oath of homage, but 
there is the oath of fealty. 
Fidelity and guaranty. insurance. A contract of fideli
ty or guaranty insurance is one whereby the insurer, for 
a valuable consideration, agrees, subject to certain con
ditions, to indemnify the insured against loss consequent 
upon the dishonesty or default of a designated person. 
Guaranty insurance, used in its broad sense, also in
cludes credit insurance, and title insurance, as well as 
the numerous forms of surety bonds. 
The contract partakes of the nature both of insurance 
and of suretyship. Hence, even in the absence of terms 
so providing, the contract is avoided by the failure of the 
insured to disclose to the insurer, at the time of making 
the contract, any known previous acts of dishonesty on 
the part of the employee, or any dishonest practices that 
may occur during the currency of the policy. But the 
insured is not required to give notice of mere irregulari
ties not involving moral turpitude; nor, in the absence 
of agreement to that effect, does the insured owe to the 
insurer any duty of watching the conduct and accounts 
of the employee concerned. 
Fidelity bond. Contract of fidelity insurance. Runcie v. 
Corn Exchange Bank Trust Co., Sup., 6 N.Y.S.2d 616, 
620. A guaranty of personal honesty of officer furnish
ing indemnity against his defalcation or negligence. 
Phillips v. Board of Education of Pineville, 283 Ky. 173, 
140 S.W.2d 819, 822. A contract whereby, for a consid
eration, one agrees to indemnify another against loss 
arising from the want of honesty, integrity, or fidelity of 
an employee or other person holding a position of trust. 
Liberty Mut. Ins. Co. v. Thunderbird Bank, 25 Ariz.App. 
201, 542 P.2d 39, 41.. See also Bond; Fidelity and guaran
ty insurance; Insurance.

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625 
Fidelity insurance. See Fidelity and guaranty insurance; 
Insurance. 
Fidem mentiri Ifaydam mentayray/. Lat. To betray 
faith or fealty. A term used in feudal and old English 
law of a feudatory or feudal tenant who does not keep 
that fealty which he has sworn to the lord. 
Fide-promissor Ifaydiy pramisar/. See Fide-jussor. 
Fides Ifaydiyz/. Lat. Faith; honesty; confidence; 
trust; veracity; honor. Occurring in the phrases "bona 
fides" (good faith), "mala fides" (bad faith), and "uberri
ma fides" (the utmost or most abundant good faith). 
Fides est obligatio conscientire alicujus ad intention
em alterius Ifaydiyz est obbgeysh(iy)ow konshiyenshi
yiy eelakyliwjas eM intenshiy6wnam oltarayasl. A trust 
is an obligation of conscience of one to the will of 
another. 
Fides facta Ifaydiyz frekta/. Among the Franks and 
Lombards undertakings were guaranteed by "making 
one's faith"-fides facta. This was symbolized by such 
formal acts as the giving of a rod; in suretyship giving 
the "festuca" or "vadium." 
Fides servanda est Ifaydiyz sarvrend� est/. Faith must 
be observed. An agent must not violate the confidence 
reposed in him. 
Fides servanda est; simplicitas juris gentium prreva
leat Ifaydiyz sarvrend� est, simplisatres jur�s jensh(iy)�m 
pravreliyat/. Faith must be kept; the simplicity of the 
law of nations must prevaiL A rule applied to bills of 
exchange as a sort of sacred instruments. 
Fiducia Ifad(y)uwsh(iy)a/. In Roman law, an early form 
of mortgage or pledge, in which both the title and 
possession of the property were passed to the creditor by 
a formal act of sale (properly with the solemnities of the 
transaction known as mancipatio), there being at the 
same time an express or implied agreement on the part 
of the creditor to reconvey the property by a similar act 
of sale provided the debt was duly paid; but on default 
of payment, the property became absolutely vested in 
the creditor without foreclosure and without any right 
of redemption. 
Fiducial. An adjective having the same meaning as 
"fiduciary;" as, in the phrase "public or fiducial office." 
Fiduciarius hreres Ifad(y)uwshiyeriy�s hiriyz/. See Fidu
ciary heir. 
Fiduciarius tutor If�d(y)uwshiyeriy�s t(y)uwt�r/. In Ro
man law, the elder brother of an emancipated pupillus, 
whose father had died leaving him still under fourteen 
years of age. 
Fiduciary Ifad(y)uwsh(iy)�ry/. The term is derived from 
the Roman law, and means (as a noun) a person holding 
the character of a trustee, or a character analogous to 
that of a trustee, in respect to the trust and confidence 
involved in it and the scrupulous good faith and candor 
which it requires. A person having duty, created by his 
undertaking, to act primarily for another's benefit in 
matters connected with such undertaking. As an adjec-
FIDUCIARY DUTY 
tive it means of the nature of a trust; having the 
characteristics of a trust; analogous to a trust; relating 
to or founded upon a trust or confidence. 
A term to refer to a person having duties involving 
good faith, trust, special confidence, and candor towards 
another. A fiduciary "includes such relationships as 
executor, administrator, trustee, and guardian." ABA 
Code of Judicial Conduct, Canon 3C(3)(b). A lawyer is 
also in a fiduciary relationship with the client. 
A person or institution who manages money or prop
erty for another and who must exercise a standard of 
care in such management activity imposed by law or 
contract; e.g. executor of estate; receiver in bankruptcy; 
trustee. A trustee, for example, possesses a fiduciary 
responsibility to the beneficiaries of the trust to follow 
the terms of the trust and the requirements of applica
ble state law. A breach of fiduciary responsibility would 
make the trustee liable to the beneficiaries for any 
damage caused by such breach. 
The status of being a fiduciary gives rise to certain 
legal incidents and obligations, including the prohibition 
against investing the money or property in investments 
which are speculative or otherwise imprudent. 
Many states have adopted the Uniform Fiduciaries 
Act, and the Uniform Management of Institutional 
Funds Act. 
See also Fiduciary capacity; Fiduciary or confidential 
relation. 
Foreign fiduciary. A trustee, executor, administrator, 
guardian or conservator appointed by a jurisdiction oth
er than the one in which he is acting. 
Fiduciary bond. Type of surety bond required by court 
to be filed by trustees, administrators, executors, guardi
ans, and conservators to insure proper performance of 
their duties. 
Fiduciary capacity. One is said to act in a "fiduciary 
capacity" or to receive money or contract a debt in a 
"fiduciary capacity," when the business which he trans
acts, or the money or property which he handles, is not 
his own or for his own benefit, but for the benefit of 
another person, as to whom he stands in a relation 
implying and necessitating great confidence and trust on 
the one part and a high degree of good faith on the other 
part. The term is not restricted to technical or express 
trusts, but includes also such offices or relations as those 
of an attorney at law, a guardian, executor, or broker, a 
director of a corporation, and a public officer. 
Fiduciary contract. An agreement by which a person 
delivers a thing to another on the condition that he will 
restore it to him. 
Fiduciary debt. A debt founded on or arising from 
some confidence or trust as distinguished from a "debt" 
founded simply on contract. Montgomery v. Phillips 
Petroleum Co., Tex.Civ.App., 49 S.W.2d 967, 973. 
Fiduciary duty. A duty to act for someone else's bene
fit, while subordinating one's personal interests to that 
of the other person. It is the highest standard of duty 
implied by law (e.g., trustee, guardian).

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FIDUCIARY HEIR 
Fiduciary heir. The Roman laws called a fiduciary heir 
the person who was instituted heir, and who was 
charged to deliver the succession to a person designated 
by the testament. 
Fiduciary or confidential relation. A very broad term 
embracing both technical fiduciary relations and those 
informal relations which exist wherever one person 
trusts in or relies upon another. One founded on trust 
or confidence reposed by one person in the integrity and 
fidelity of another. Such relationship arises whenever 
confidence is reposed on one side, and domination and 
influence result on the other; the relation can be legal, 
social, domestic, or merely personal. Heilman's Estate, 
Matter of, 37 Ill.App.3d 390, 345 N .E.2d 536, 540. 
A relation subsisting between two persons in regard to 
a business, contract, or piece of property, or in regard to 
the general business or estate of one of them, of such a 
character that each must repose trust and confidence in 
the other and must exercise a corresponding degree of 
fairness and good faith. Out of such a relation, the law 
raises the rule that neither party may exert influence or 
pressure upon the other, take selfish advantage of his 
trust, or deal with the subject-matter of the trust in such 
a way as to benefit himself or prejudice the other except 
in the exercise of the utmost good faith and with the full 
knowledge and consent of that other, business shrewd
ness, hard bargaining, and astuteness to take advantage 
of the forgetfulness or negligence of another being total
ly prohibited as between persons standing in such a 
relation to each other. Examples of fiduciary relations 
are those existing between attorney and client, guardian 
and ward, principal and agent, executor and heir, trust
ee and cestui que trust, landlord and tenant, etc. 
See also Confidential commun ications. 
Fiduciary shield doctrine. Equitable doctrine which 
holds that actions taken by individual defendants solely 
in their capacity as corporate officers could not provide 
the basis for the exercise of jurisdiction over their per
sons, absent circumstances making such exercise appro
priate. This doctrine confers jurisdictional immunity 
upon corporate officials, even though their conduct be 
tortious as long as the actions taken were in the inter
ests of the corporation and not purely personal and the 
corporation is not merely a shell for the individual and 
does not lack sufficient assets to respond. Totalplan 
Corp. of America v. Lure Camera Ltd., D.C.N.Y., 613 
F.Supp. 451, 457. 
Fief I fiyf I. A fee, feod, or feud. 
Fief d'haubert (or d'hauberk) lfiyf dowber(k)/. Fr. In 
Norman feudal law, a fief or fee held by the tenure of 
knight-service; a knight's fee. 2 Bl.Comm. 62. A fee 
held on the military tenure of appearing fully armed on 
the ban and arriere-ban. 
Fief-tenant lfiyf tlm:mt/. In old English law, the holder 
of a fief or fee; a feeholder or freeholder. 
Fiel lfiyeyl/. In Spanish law, a sequestrator; a person 
in whose hands a thing in dispute is judicially deposited; 
a receiver. 
626 
Field. Open area of land; commonly used for cultivation 
or pasturage. 
Fieldad lfiyeyldad/. In Spanish law, sequestration. 
This is allowed in six cases by the Spanish law where 
the title to property is in dispute. 
Field-ale, or filkdale lfiyldeyl/. An ancient custom in 
England, by which officers of the forest and bailiffs of 
hundreds had the right to compel the hundred to fur
nish them with ale. 
Field audit. See Audit. 
Field book. A description of the courses and distances 
of the lines, and of the corners of the lots of the town as 
they were surveyed, and as they appear by number and 
division on the town plan. 
Field Code. The original New York Code brought into 
being by David Dudley Field in 1848 calling for simplifi
cation of civil procedure. This Code served as the model 
for future state civil procedure codes and rules. 
Field notes. A description of a survey. 
Field office. A branch or subsidiary office of a govern
ment agency apart from the central office. 
Field reeve. In old English law, an officer elected by the 
owners of a regulated pasture to keep in order the 
fences, ditches, etc., on the land, to regulate the times 
during which animals are to be admitted to the pasture, 
and generally to maintain and manage the pasture 
subject to the instructions of the owners. 
Field sobriety tests. In determining reasonable 
grounds for DWI arrest, many police departments use 
field sobriety tests in which a suspect is requested to 
step from his vehicle and engage in a number of physi
cal acts which are designed to test the person's coordina
tion for the purpose of determining intoxication. The 
finger-to-nose test, picking up coins, walking a line, 
reciting the alphabet, and other similar activities have 
become a fairly common part of DWI arrest procedure. 
Field vision. The general vision used in catching in 
sight, following and locating objects;-distinguished 
from "binocular vision" (q. v.). 
Field warehouse financing agreement. A loan agree
ment in which the inventory that is being pledged as 
collateral is segregated from the company's other inven
tories and stored on its premises under the control of a 
field warehouse company. See also Field warehousing. 
Field warehouse receipt. Document issued by ware
houseman evidencing receipt of goods which have been 
stored. Such may be used as collateral for loans. See 
also Field warehousing; Warehouse receipt. 
Field warehousing. Arrangement whereby wholesaler, 
manufacturer, or merchant finances his business 
through pledge of goods remaining on his premises and 
it is limited type of warehousing as distinguished from 
public warehouse. Lawrence Warehouse Co. v. McKee, 
C.A.Fla., 301 F.2d 4, 6. An arrangement whereby a 
pledgor may have necessary access to the pledged goods, 
while the goods are actually in the custody and control

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627 
of a third person, acting as a warehouseman on the 
pledgor's premises. Field warehousing is often em
ployed as a security device in inventory financing where 
the financer or secured party desires to maintain close 
control over the borrower's inventory and have the 
advantages of being a pledgee of the property. The 
device is employed in financing manufacturers or whole
salers in seasonal industries and is also useful where the 
manufactured products must be aged or cured or where 
they are accumulated over a period of time and then 
disposed of all at once. 
Field work. Work in the field, specifically the task of 
gathering data from the field. Includes the sphere of 
practical operation, as of an organization or enterprise; 
also, the place or territory where direct contacts as with 
a clientele may be made, or whereby practical, first
hand knowledge may be gained. Sphere of action or 
place of contest, either literally or figuratively; hence, 
any scene of operations or opportunity for activity. 
State ex reI. McPherson v. Snell, 168 Or. 153, 121 P.2d 
930, 937. 
Fierding courts lfirdilJ k6rts/. Ancient Gothic courts of 
an inferior jurisdiction, so called because four were 
instituted within every inferior district or hundred. 3 
Bl.Comm. 34. 
Fieri IfaY'Jray/. Lat. To be made; to be done. See In 
fieri. 
Fieri facias (Fi. Fa.) lfay'Jray feys(h)(i)Y'Js/. Lat. 
Means that you "cause (it) to be done." Judicial writ 
directing sheriff to satisfy a judgment from the debtor's 
property. In its original form, the writ directed the 
seizure and sale of goods and chattels only, but eventual
ly was enlarged to permit levy on real property, too; 
largely synonymously with modern writ of execution. 
Fieri facias de bonis ecclesiasticis lfay'Jray 
feys(h)(i)y'Js diy b6wn'Js 'Jkliyziyrest'Js'Js/. When a sheriff 
to a common fi. fa. returns nulla bona, and that the 
defendant is a beneficed clerk, not having any lay fee, a 
plaintiff may issue a fi. fa. de bonis ecclesiasticis, ad
dressed to the bishop of the diocese or to the archbishop 
(during the vacancy of the bishop's see), commanding 
him to make of the ecclesiastical goods and chattels 
belonging to the defendant within his diocese the sum 
therein mentioned. 
Fieri facias de bonis testatoris Ifay'Jray feys(h)(i)y'Js diy 
b6wn'Js test'Jt6r'Js/. The writ issued on an ordinary 
judgment against an executor when sued for a debt due 
by his testator. If the sheriff returns to this writ nulla 
bona, and a devastavit (q.v.), the plaintiff may sue out a 
fieri facias de bonis propriis, under which the goods of 
the executor himself are seized. 
Fieri feci Ifay'Jray fiysay/. Means I have caused to be 
made. The return made by a sheriff or other officer to a 
writ of fieri facias, where he has collected the whole, or 
a part, of the sum directed to be levied. The return, as 
actually made, is expressed by the word "Satisfied" 
indorsed on the writ. 
FIGHTING WORDS DOCTRINE 
Fieri non debet (debuit), sed factum valet lfay'Jray 
non deb'Jt, sed frekt'Jm vrel'Jtrdebyuw'JtO I. It ought not 
to be done, but [if] done, it is valid. 
Fi. Fa. Ifay fey/. An abbreviation for fieri facias (q.v.). 
FIFO. First-in, first-out. A method of accounting for 
inventory which assumes that goods are sold in the 
order in which they are purchased, i.e., the oldest items 
sold first. The other common inventory costing methods 
include LIFO (last-in, first-out), specific identification, 
and average cost. Contrast with Last-in, first-out (LIF O). 
FIFRA. Federal Insecticide, Fungicide, and Rodenticide 
Act. 7 U.S.C.A. §§ 136-136y. 
Fifteenth Amendment. Amendment to U.S. Constitu
tion, ratified by the States in 1870, guaranteeing all 
citizens the right to vote regardless of race, color, or 
previous condition of servitude. Congress was given the 
power to enforce such rights by appropriate legislation. 
Fifteenths lfiftiynOs/. In old English law, this was 
originally a tax or tribute, levied at intervals by act of 
parliament, consisting of one-fifteenth of all the movable 
property of the subject or personalty in every city, 
township, and borough. Under Edward III, the taxable 
property was assessed, and the value of its fifteenth part 
(then about £29,000) was recorded in the faxchequer, 
whence the tax, levied on that valuation, continued to be 
called a "fifteenth," although as the wealth of the king
dom increased, the name ceased to be an accurate desig
nation of the proportion of the tax to the value taxed. 1 
Bl.Comm. 309. 
Fifth Amendment. Amendment to U.S. Constitution 
providing that no person shall be required to answer for 
a capital or otherwise infamous offense unless on indict
ment or presentment of a grand jury except in military 
cases; that no person will suffer double jeopardy; that 
no person will be compelled to be a witness against 
himself; that no person shall be deprived of life, liberty 
or property without due process of law and that private 
property will not be taken for public use without just 
compensation. 
Fifth degree of kinship. The degree of kinship between 
a deceased intestate and the children of decedent's first 
cousin, sometimes designated as "first cousins once re
moved", is in the "fifth degree". Simonton v. Edmunds, 
202 S.C. 397, 25 S.E.2d 284, 285. 
Fifty decisions. Ordinances of Justinian (529-532) upon 
the authority of which all moot points were settled in 
the preparation of the second edition of the Code. 
Fight. A hostile encounter, affray, or altercation; a 
physical or verbal struggle for victory; pugilistic com
bat. Gitlow v. Kiely, D.C.N.Y., 44 F.2d 227, 232. See 
also Affray. 
Fighting words doctrine. The First Amendment doc
trine that holds that certain utterances are not constitu
tionally protected as free speech if they are inherently 
likely to provoke a violent response from the audience. 
N.A.A.C.P. v. Clairborne Hardware Co., Miss., 458 U.S. 
886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Words

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FIGHTING WORDS DOCTRINE 
which by their very utterance inflict injury or tend to 
incite an immediate breach of the peace, having direct 
tendency to cause acts of violence by the persons to 
whom, individually, remark is addressed. The test is 
what persons of common intelligence would understand 
to be words likely to cause an average addressee to fight. 
City of Seattle v. Camby, 104 Wash.2d 49, 701 P.2d 499, 
500. 
The "freedom of speech" protected by the Constitution 
is not absolute at all times and under all circumstances 
and there are well-defined and narrowly limited classes 
of speech, the prevention and punishment of which does 
not raise any constitutional problem, including the lewd 
and obscene, the profane, the libelous, and the insulting 
or "fighting words" which by their very utterance inflict 
injury or tend to incite an immediate breach of the 
peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 
S.Ct. 766, 86 L.Ed. 1031. 
Fightwite. Sax. A mulct or fine for making a quarrel 
to the disturbance of the peace. A payment to a lord 
possessing soc over a place where a wrong was done. 
Figures. Artificial representations of a form, as in 
sculpture, drawing, or painting, especially the human 
body represented by art of any king. People v. East
man, 89 Misc. 596, 152 N.Y.S. 314, 317. 
Numerals; number symbols. They are either Roman, 
made with letters of the alphabet: e.g. "MDCCLXXVI"; 
or they are Arabic: e.g. "1776". 
Filacer lfil;}s;}r/fibz;}r/. In England an officer of the 
superior courts at Westminster, whose duty it was to file 
the writs on which he made process. There were four
teen filacers, and it was their duty to make out all 
original process. The office was abolished in 1837. 
Filare If;}lt�riy/. In old English practice, to file. 
Filching lfilchiIJ/filshiIJ/. To steal money, commonly of 
little value, secretly or underhandedly. Peck v. Bez, 
W.Va., 40 S.E.2d 1, 10. 
File, n. A record of the court. Milton v. United States, 
C.C.A.La., 105 F.2d 253, 255. A paper is said to be filed 
when it is delivered to the proper officer, and by him 
received to be kept on file as a matter of record and 
reference. But, in general, "file," or "the files," is used 
loosely to denote the official custody of the court or the 
place in the offices of a court where the records and 
papers are kept. The "file" in a case includes the 
original complaint and all pleadings and papers belong
ing thereto. See also Docket; Record. 
File, v. To lay away and arrange in order, pleadings, 
motions, instruments, and other papers for preservation 
and reference. To deposit in the custody or among the 
records of a court. To deliver an instrument or other 
paper to the proper officer or official for the purpose of 
being kept on file by him as a matter of record and 
reference in the proper place. It carries the idea of 
permanent preservation as a public record. City of 
Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56, 59. 
See also Record. 
Constructive filing. See that title. 
628 
Filing officer. The person in charge of the office respon
sible for receiving legal papers and documents that are 
required to be publicly filed (e.g., office or department of 
Secretary of State in which a financing statement must 
be filed to perfect a security interest under the Uniform 
Commercial Code. U.C.C. § 9-401). 
Filing with court. Delivery of legal document to clerk of 
court or other proper officer with intent that it be filed 
with court. Fed.R.Civil P. 5 requires that all papers 
after the complaint required to be served upon a party 
shall be filed with the court (i.e., clerk or judge) either 
before service or within a reasonable time thereafter. 
Filed. See File. 
Filed rate doctrine. Doctrine which forbids a regulated 
entity from charging rates for its services other than 
those properly filed with the appropriate federal regula
tory authority. Arkansas Louisiana Gas Co. v. Hall, La., 
453 U.S. 571, 576, 101 S.Ct. 2925, 2930, 69 L.Ed.2d 856. 
File wrapper. The written record of the preliminary 
negotiations between an applicant and the Patent Office 
for a patent monopoly contract. Norton Co. v. Carbo
rundum Co., C.A.Mass., 530 F.2d 435, 440. 
File wrapper estoppel. Under the doctrine of "file 
wrapper estoppel," an applicant who has limited or 
modified a claim in order to avoid its rejection by the 
Patent Off ice may not later expand his claim by includ
ing the excluded matter, or its equivalent, or by omit
ting the limitations period. Speed Shore Corp. v. Denda, 
C.A.Cal., 605 F.2d 469, 472. Doctrine means that the 
inventor had earlier given up certain claims with re
spect to his patent that he is now attempting to assert 
through the doctrine of equivalents in order to establish 
a basis for his charge that the patent has been infringed. 
Systematic Tool & Machine Co. v. Walter Kiddie & Co., 
Inc., D.C.Pa., 390 F.Supp. 178, 200. See also Prosecution 
history estoppel. 
Filiation lfiliyeysh;}n/. Judicial determination of pater
nity. The relation of child to father. 
In the civil law, the descent of son or daughter, with 
regard to his or her father, mother, and their ancestors. 
Filiation proceeding. A special statutory proceeding in 
the nature of a civil action to enforce a civil obligation 
or duty specifically for the purpose of establishing par
entage and the putative father's duty to support his 
illegitimate child. State v. Morrow, 158 Or. 412, 75 P.2d 
737, 738, 739, 744. See also Paternity suit or action. 
Filibuster. Tactics designed to obstruct and delay legis
lative action by prolonged and often irrelevant speeches 
on the floor of the House or· Senate. See also Cloture; a 
means of cutting off filibustering. 
Filing. See Constructive filing; File. 
Filing status . One of four categories used by an individ
ual in preparing his or her income taxes. The four 
categories include: (1) single, (2) head of household, (3) 
married ming a joint return, (4) married filing separate 
returns. The taxpayer's ming status determines the tax 
rate schedule to be used in calculating the individual's

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tax liability. The filing status with the most advanta
geous rate schedule is "married filing a joint return." 
Filiolus (or filious) lfiliy6wbs/. In old records, a god
son. 
Filius lfiliy�s/. Lat. A son; a child. As distinguished 
from heir, filius is a term of nature, hreres a term of 
law. In the civil law the term was used to denote a 
child generally. A distinction was sometimes made, in 
the civil law, between "filii" and "liberi':' the latter 
word including grandchildren (nepotes), the former not. 
Filius est nomen naturre, sed hreres nomen juris 
lfiliy�s est n6wm�n n�tyUriy sed hiriyz n6wm�n jur�s/. 
Son is a name of nature, but heir is a name of law. 
Filius familias lfiliy�s f�miliy�s/. In the civil law, the 
son of a family; an unemancipated son. 
Filius in utero matris est pars viscerum matris 
lfiliy�s in yuwt�row meytr�s est parz vis�r�m meytr�s/. 
A son in the mother's womb is part of the mother's 
vitals. 
Filius mulieratus lfiliy�s myUwl(i)y�reyt�s/. In old 
English law, the eldest legitimate son of a woman, who 
previously had an illegitimate son by his father. Other
wise called "mulier." 2 BLComm. 248. 
Filius nullius lfiliy�s n�lay�srn:iliy�s /. An illegitimate 
child; son of nobody. 
Filius populi lfiliy�s p6py�lay I. A son of the people. 
Natural child. 
Fill. To make full; to complete; to satisfy or fulfill; to 
possess and perform the duties of; to occupy the whole 
capacity or extent of, so as to leave no space vacant. To 
execute customer's order to buy or sell a security or 
commodity. 
Filthy. Dirty, vulgar, indecent, obscene, lewd, offensive 
to the moral sense, morally depraving, debasing. Con
taining or covered with filth. See Obscene. 
Filum Ifayl�m/. Lat. In old practice, a file, i.e., a 
thread or wire on which papers were strung, that being 
the ancient method of filing. An imaginary thread or 
line passing through the middle of a stream or road, as 
in the titles following. 
Filum aqure Ifayl�m rekwiy/. A thread of water; a line 
of water; the middle line of a stream of water, supposed 
to divide it into two equal parts, and constituting in 
many cases the boundary between the riparian proprie
tors on each side. Medium filum is sometimes used 
with no additional meaning. Cf, Thalweg. 
Filum forestre Ifayl�m f�restiy/. The border of the 
forest. 2 BLComm. 419. Manw. Purlieu. 
Filum vire Ifaybm vayiy/. The thread or middle line of 
a road. The boundary between the owners of the land 
on each side of a road. 
Fin Ifren/. Fr. An end, or limit; a limitation, or period 
of limitation. 
Final. Last; conclusive; decisive; definitive; terminat
ed; completed. As used in reference to legal actions, 
FINAL DETERMINATION 
this word is generally contrasted with "interlocutory." 
For res judicata purposes, a judgment is "final" if no 
further judicial action by court rendering judgment is 
required to determine matter litigated. Adolph Coors 
Co. v. Sickler, D.C.Cal., 608 F;Supp. 1417, 1429. See also 
Final decision or judgment. 
As to final Costs; Decree; Injunction; Judgment; Or
der; Process; Recovery; Sentence, and Settlement, see 
those titles. 
Final appealable order or judgment. One that dispos
es of all issues and all parties in the case and leaves 
nothing for further determination. Schaumburg/Glunt, 
Inc. v. Parmley, Mo.App., 701 S.W.2d 201, 202. See also 
Final decision or judgment. 
Final architect's certificate. One which is issued after 
a job is done and which finally determines the rights of 
the parties as to money and disputes. 
Final award. One which conclusively determines the 
matter submitted and leaves nothing to be done except 
to execute and carry out terms of award. Trollope v. 
Jeffries, 55 CaLApp.3d 816, 128 CaLRptr. 115, 120. See 
Final decision or judgment. 
Final decision or judgment. One which leaves nothing 
open to further dispute and which sets at rest cause of 
action between parties. One which settles rights of 
parties respecting the subject-matter of the suit and 
which concludes them until it is reversed or set aside. 
In re Tiffany, 252 U.S. 32, 40 S.Ct. 239, 240, 64 L.Ed. 
443. Also, a decision from which no appeal or writ of 
error can be taken. U.S. ex rel. Fink v. Tod, C.C.A.N.Y., 
1 F.2d 246, 251. Judgment is considered "final," and 
thus appealable only if it determines the rights of the 
parties and disposes of all of the issues involved so that 
no future action by the court will be necessary in order 
to settle and determine the entire controversy. Howard 
Gault & Son, Inc. v. First Nat. Bank of Hereford, Tex. 
Civ.App., 523 S.W.2d 496, 498. 
"Final decision" which may be appealed (to Court of 
Appeals under 28 U.S.C.A. § 1291) is one that ends 
litigation on merits and leaves nothing for courts to do 
but execute judgment. U.S. v. One Parcel of Real Prop
erty with Bldgs ., Etc., C.A.Fla., 767 F.2d 1495, 1497. In 
criminal case, is imposition of sentence. People ex reI. 
Grogan v. Lisinski, 1 Dist., 113 Ill.App.3d 276, 68 IlLDec. 
854, 446 N.E.2d 1251, 1253. See also Final decision rule; 
Final disposition; Interlocutory Appeals Act; Judgment 
(Final judgment), Res (Res judicata). 
Final decision rule. Appeals to federal courts of ap
peals from U.S. district courts must be from "final 
decisions" of district courts. 28 U.S.C.A. § 1291. In 
other words, the courts of appeals lack jurisdiction over 
nonfinal jUdgments. The object of this restriction is to 
prevent piecemeal litigation which would otherwise re
sult from the use of interlocutory appeals. See Interlocu
tory Appeals Act. 
Final decree. See Final decision or judgment. 
Final determination. See Final decision or judgment.

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FINAL DISPOSITION 
Final disposition. Such a conclusive determination of 
the subject-matter that after the award, judgment, or 
decision is made nothing further remains to fix the 
rights and obligations of the parties, and no further 
controversy or litigation can arise thereon. Quarture v. 
Allegheny County, 141 Pa.Super. 356, 14 A.2d 575, 578. 
It is such an award that the party against whom it is 
made can perform or pay it without any further ascer
tainment of rights or duties. See Final decision or judg
ment. 
Final hearing. Describes that stage of proceedings re
lating to the determination of a subject matter upon its 
merits as distinguished from those of preliminary or 
interlocutory nature. 
Finalis concordia If:meybs k;:)1Jkord(i)y;:)I . A final or 
conclusive agreement. 
Finality rule. See Final decision rule. 
Final judgment. See Final decision or judgment; Judg
ment. 
Final judgment rule. See Final decision rule. 
Final order. One which terminates the litigation be
tween the parties and the merits of the case and leaves 
nothing to be done but to enforce by execution what has 
been determined. Richerson v. Jones, C.A.Pa., 551 F.2d 
918, 921. See also Final decision or judgment. 
Final passage. The vote on a passage of a bill or 
resolution in either house of the legislature after it has 
received the prescribed number of readings and has 
been subjected to such action as is required by the 
fundamental law governing the body or its own rule. 
Final payment. The point at which monetary credit 
given for an item cannot be revoked under U.C.C. Arti
cle 4, which describes four means of final payment 
occurs. See U.C.C. § 4- 213(1). 
Final receiver's receipt. An acknowledgment by the 
government that it has received full payment for public 
land, that it holds the legal title in trust for the entry
man, and will in due course issue to him a patent. 
Final settlement. In probate proceeding, a direct adju
dication that the estate is fully administered; that the 
administrator has completely executed his trust and has 
accounted for all moneys received as the law requires. 
In re Braun's Estate, 140 Kan. 188, 34 P.2d 94, 95. 
The final determination of amount due contractor by 
proper governmental authority. Consolidated Indemni
ty & Insurance Co. v. W. A. Smoot & Co., C.C.A.Va., 57 
F.2d 995, 996. 
With respect to final settlement in a real estate trans
action, see CloSing. 
Final submission. Exists when nothing remains to be 
done in proceedings to render submission of case com
plete. Where the whole case, both requested instruc
tions and evidence, is submitted to the court for its 
ruling and the court takes the case under advisement, 
there is a "final submission" of the entire case. Piatt v. 
630 
Helm & Overly Realty Co., 342 Mo. 772, 117 S.W.2d 327, 
329. 
Finance. As a verb, to supply with funds through the 
payment of cash or issuance of stocks, bonds, notes, or 
mortgages; to provide with capital or loan money as 
needed to carry on business. 
Finance is concerned with the value of the assets of 
the business system and the acquisition and allocation of 
the financial resources of the system. 
Finance charge. The consideration for privilege of de
ferring payments of purchase price. The amount how
ever denominated or expressed which the retail buyer 
contracts to pay or pays for the privilege of purchasing 
goods or services to be paid for by the buyer in install
ments; it does not include the amounts, if any, charged 
for insurance premiums, delinquency charges, attorney's 
fees, court costs, collection expenses or official fees. All 
charges incident to or condition of credit. Such costs 
are regulated by state and federal "truth-in-Iending" 
statutes which require full disclosure of finance charges 
on credit agreements, billing statements, and the like. 
See Truth-in-Lending Act. 
Finance committee. A committee of the U.S. Senate 
with functions and powers similar to that of the Ways 
and Means Committee of the House. In business, an 
executive level committee, commonly made up of mem
bers of board of directors, responsible for major financial 
decisions of business. 
Finance company. Non-bank company that makes 
loans to individuals and businesses. Its capital comes 
from banks and other financial institutions and money 
markets-rather than from deposits. The primary 
types of finance companies are: consumer (or small 
loan) finance companies; sales finance (acceptance) com
panies, that purchase installment financing paper from 
e.g. automobile dealers; and, commercial finance or 
credit companies that make loans to manufacturers and 
wholesalers. 
Finance lease. A lease in which the lessor does not 
select, manufacture or supply the goods, but enters into 
a contract with a third party supplier to acquire goods 
specifically for the purpose of leasing them to the lessee. 
U.C.C. § 2A-103. 
Financial. Fiscal. Relating to finances. 
Financial Accounting Standards Board. Independent 
board with responsibility to establish and interpret Gen
erally Accepted Accounting Principles. 
Financial institutions. An insured bank; a commercial 
bank or trust company; a private banker; an agency or 
branch of a foreign bank in the United States; an 
insured institution as defined in the National Housing 
Act; a thrift institution; a broker or dealer registered 
with the Securities and Exchange Commission; a broker 
or dealer in securities or commodities; an investment 
banker or investment company; a currency exchange; 
an issuer, redeemer, or cashier of travelers' checks, 
checks, money orders, or similar instruments; an opera
tor of a credit card system; an insurance company; a

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dealer in precious metals, stones or jewels; a pawnbro
ker; a loan or finance company; a travel agency; a 
licensed sender of money; a telegraph company. 31 
U.S.C.A. § 5312. See also Uniform Probate Code, 
§ 6-101(3). 
Financial interest. An interest equated with money or 
its equivalent. 
Financially able. Solvent; credit worthy; able to pay 
debts and expenses as due. Means purchaser must be 
able to command the necessary funds to close the trans
action within the required time. Hersh v. Garau, 218 
Cal. 460, 23 P.2d 1022. A prospective purchaser is 
"financially able" if he or she has the capability to make 
downpayment and all deferred payments required under 
a proposed contract of sale. Fleming Realty & Ins., Inc. 
v. Evans, 199 Neb. 440, 259 N.W.2d 604, 606. See also 
Financial responsibility acts; Solvency. 
Financial markets. Markets for the exchange of capital 
in the economy, including stock, bond, commodity and 
foreign exchanges. 
Financial reports. See Annual report; Financial state
ment; Profit and loss statement. 
Financial responsibility. Term commonly used in con
nection with motor vehicle insurance equivalents. See 
also Financial responsibility acts. 
Financial responsibility acts. State statutes which 
require owners of motor vehicles to produce proof of 
financial accountability as a condition to acquiring a 
license and registration so that judgments rendered 
against them arising out of the operation of the vehicles 
may be satisfied. 
Financial responsibility clause. Provision in automo
bile insurance policy stating that the insured has at 
least the minimum amount of coverage required by state 
financial responsibility laws. 
Financial statement. Any report summarizing the fi
nancial condition or financial results of a person or 
organization on any date or for any period. Financial 
statements include the balance sheet and the income 
statement and sometimes the statement of changes in 
financial position. See also Annual report. 
Consolidated statement. Financial statements that in
clude the accounts of both a parent company and con
trolled subsidiaries. See also Consolidated financial 
statements. 
Financial worth. The value of one's property less what 
he owes, or the value of his resources less his liabilities. 
Financier. A person or financial institution employed 
in the economical management and application of mon
ey. One skilled in matters appertaining to the judicious 
investment, loaning, and management of money affairs. 
Person or institution that financially backs business 
ventures. 
Financing agency. A bank, finance company or other 
person who in the ordinary course of business makes 
advances against goods or documents of title or who by 
FINDER 
arrangement with either the seller or the buyer inter
venes in ordinary course to make or collect payment due 
or claimed under the contract for sale, as by purchasing 
or paying the seller's draft or making advances against 
it or by merely taking it for collection whether or not 
documents of title accompany the draft. "Financing 
agency" includes also a bank or other person who sim
ilarly intervenes between persons who are in the posi
tion of seller and buyer in respect to the goods. U.C.C. 
§ 2-104. 
Financing statement. A document setting out a se
cured party's security interest in goods. A document 
designed to notify third parties, generally prospective 
buyers or lenders, that there may be an enforceable 
security interest in the property of the debtor. Villa v. 
Alvarado State Bank, Tex.Civ.App., 611 S.W.2d 483, 486. 
It is merely evidence of the creation of a security inter
est, and usually is not itself a security agreement. Shel
ton v. Erwin, C.A.Mo., 472 F.2d 111 8, 1120. 
Under the Uniform Commercial Code, a financing 
statement is used under Article 9 to reflect a public 
record that there is a security interest or claim to the 
goods in question to secure a debt. The financing state
ment is filed by the security holder with the Secretary of 
State, or similar public body, and as such becomes public 
record. When the document is filed with the appropri
ate government agency, all potential lenders and third 
parties are put on constructive notice of the security 
interest. See also Secured transaction; Security interest. 
Find. To come upon by seeking or by effort. Shields v. 
Shields, 115 Mont. 146, 139 P.2d 528, 530. To discover; 
to determine; to locate; to ascertain and declare. See 
also Found; Locate. 
To announce a conclusion upon a disputed fact or 
state of facts; as a jury is said to "find a will." To 
determine a controversy in favor of one of the parties; 
as a jury "finds for the plaintiff." See also Finding. 
Fin de non recevoir /fren d;} non r;,seyvwar /. In French 
law, an exception or plea founded on law, which, with
out entering into the merits of the action, shows that the 
plaintiff has no right to bring it, either because the time 
during which it ought to have been brought has elapsed, 
which is called "prescription," or that there has been a 
compromise, accord and satisfaction, or any other cause 
which has destroyed the right of action which once 
subsisted. 
Finder. An intermediary who contracts to find, intro
duce and bring together parties to a business opportuni
ty, leaving ultimate negotiations and consummation of 
business transaction to the principals. Business Devel
opment Services, Inc. v. Field Container Corp., 96 Ill. 
App.3d 834, 52 Ill. Dec. 405, 412, 422 N.E.2d 86, 93. 
With respect to a securities issue, refers to one who 
brings together an issuer and an underwriter; in con
nection with mergers, refers to one who brings two 
companies together. May also refer to one who secures 
mortgage financing for borrower; or one who locates a 
particular type of executive or professional for a corpo-

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FINDER 
ration; or one who locates a particular type of business 
acquisition for a corporation. 
Finder's fee. Amount charged for bringing together 
parties to business opportunity (e.g., lender and borrow
er) or bringing issuer and underwriter together, or for 
performing other types of services described under "find
er" supra. A finder's fee for a securities issue may be 
stock or a combination of cash and stock. 
Finder's fee contract. An arrangement by which an 
intermediary finds, introduces, and brings together par
ties to a business opportunity, leaving the ultimate 
negotiation and consummation of the business transac
tion to the principals. Equity Benefit Life Ins. Co. v. 
Trent, Okl., 566 P.2d 449, 453. 
Finding. The result of the deliberations of a jury or a 
court. A decision upon a question of fact reached as the 
result of a judicial examination or investigation by a 
court, jury, referee, coroner, etc. A recital of the facts 
as found. The word commonly applies to the result 
reached by a judge or jury. See also Decision; Judg
ment; Verdict. 
Finding of fact. Determinations from the evidence of a 
case, either by court or an administrative agency, con
cerning facts averred by one party and denied by anoth
er. Kozsdiy v. O'Falton Bd. of Fire and Police Com'rs, 
31 Ill.App.3d 173, 334 N.E.2d 325, 329. A determination 
of a fact by the court, averred by one party and denied 
by the other, and founded on evidence in case. C.I.T. 
Corp. v. Elliott, 66 Idaho 384, 159 P.2d 891, 897. A 
conclusion by way of reasonable inference from the 
evidence. Welfare of Carpenter, 21 Wash.App. 814, 587 
P.2d 588, 592. Also the answer of the jury to a specific 
interrogatory propounded to them as to the existence or 
non-existence of a fact in issue. Conclusion drawn by 
trial court from facts without exercise of legal judgment. 
Compare Conclusion of law. 
Findings of fact shall not be set aside unless clearly 
erroneous. Fed.R. Civil P. 52(a). The court may amend, 
or make additional findings, on motion of a party. 
Fed.R. Civil P. 52(b). 
A general finding by a court is a general statement 
that the facts are in favor of a party or entitle him to 
judgment. It is a complete determination of all matters, 
and is a finding of every special thing necessary to be 
found to sustain the general finding. 
A special finding is a specific setting forth of the 
ultimate facts established by the evidence and which are 
determinative of the judgment which must be given. It 
is only a determination of the ultimate facts on which 
the law must be determined. A special finding may also 
be said to be one limited to the fact issue submitted. 
Finding of law. Term applies to rulings of law made by 
court in connection with findings of fact; such findings 
or rulings of law are subject to appellate review. See 
also Conclusion of law. Compare Finding of fact, above. 
Fine, n. A pecuniary punishment or penalty imposed by 
lawful tribunal upon person convicted of crime or misde
meanor. See e.g. 18 U.S.C.A. § 3571. It may include a 
632 
forfeiture or penalty recoverable in a civil action, and, in 
criminal convictions, may be in addition to imprison
ment. A fine constitutes a "sentence" as defined in 
Rules of Criminal Procedure. State v. Pitts, 548 P.2d 
1202, 1204, 26 Ariz.App. 390. See also Penalty. 
Fine, v. To impose a pecuniary punishment or mulct. 
To sentence a person convicted of an offense to pay a 
penalty in money. 
In imposing fines, modern statutes require the court 
to consider the ability of the defendant to pay, the 
burden such will have on dependents of the defendant, 
and the effect such fine will have on the ability of the 
defendant to make restitution to the victim. E.g., Model 
Penal Code § 7.02(3)(b); 18 U.S.C.A. § 3571. 
Conveyancing. An amicable composition or agreement 
of a suit, either actual or fictitious, by leave of the court, 
by which the lands in question become, or are acknowl
edged to be, the right of one of the parties. Hitz v. 
Jenks, 123 U.S. 297, 8 S.Ct. 143, 31 L.Ed. 156. Fines 
were abolished in England by St. 3 & 4 Wm. IV, c. 74, 
substituting a disentailing deed. A fine is so called 
because it puts an end not only to the suit thus com
menced, but also to all other suits and controversies 
concerning the same matter. The party who parted 
with the land, by acknowledging the right of the other, 
was said to levy the fine, and was called the "cognizor" 
or "conusor," while the party who recovered or received 
the estate was termed the "cognizee" or "conusee," and 
the fine was said to be levied to him. 
Executed fine. See Executed. 
Tenure law. A money payment made by a feudal tenant 
to his lord. The most usual fine was that payable on the 
admittance of a new tenant, but there was also due in 
some manors fines upon alienation, on a license to 
demise the lands, or on the death of the lord, or other 
events. 
Fine and recovery act. The English statutes 3 & 4 
Wm. IV, c. 74, abolishing fines and recoveries. 
Fine anullando levato de tenemento quod fuit de 
antiquo dominico Ifityniy ren�lrendow l�veytow diy 
ten�mentow kwod fyuw�t diy rentitykwow d�min
�kow I. An abolished writ for disannulling a fine levied 
of lands in ancient demesne to the prejudice of the lord. 
Fine capiendo pro terris Ifityniy krepiy€mdow prow 
tehr�s/. An obsolete writ which lay for a person who, 
upon conviction by jury, had his lands and goods taken, 
and his body imprisoned, to be remitted his imprison
ment, and have his lands and goods redelivered to him, 
on obtaining favor of a sum of money, etc. 
Fine for alienation. A fine anciently payable upon the 
alienation of a feudal estate and substitution of a new 
tenant. It was payable to the lord by all tenarits hold
ing by knight's service or tenants in capite by socage 
tenure. Abolished in England by 12 Car. II, c. 24. 2 
Bl.Comm. 71, 89. 
Fine-force. An absolute necessity or inevitable con
straint.

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633 
Fine for endowment. A fine anciently payable to the 
lord by the widow of a tenant, without which she could 
not be endowed of her husband's lands. Abolished in 
England under Henry I, and by Magna Charta. 2 Bl. 
Comm. 135. 
Finem facere Ifayn;}m fres;}riy I. To make or pay a fine. 
Fine non capiendo pro pulchre placitando /fayniy 
non krepiyendow prow p;}lkriy plres;}trendow I. An obso
lete writ to inhibit officers of courts to take fines for fair 
pleading. 
Fine print. Term or expression referring to disclaimer 
or avoidance type provisions in insurance policies, fi
nancing agreements, and the like, that are typeset in 
small type and so located in the document so as to not 
be readily noticed by the insured, borrower, etc. State 
and federal disclosure laws have greatly curtailed this 
practice. Compare Conspicuous term or clause. 
Fine pro redisseisina capiendo Ifayniy prow 
red;}siyz;}n;} krepiy€mdow I. An old writ that lay for the 
release of one imprisoned for a redisseisin, on payment 
of a reasonable fine. 
Fine rolls. See Oblate Rolls. 
Fines Ie roy /faynz I;} roy I. In old English law, the 
king's fines. Fines formerly payable to the king for any 
contempt or offense, as where one committed any tres
pass, or falsely denied his own deed, or did anything in 
contempt of law. 
Fine sur cognizance de droit, cum ceo que il ad de 
son done /fayn s�r k;}gnayz;}ns d;} droyt, k�m siyow 
kwiy il red d;} son down I . A fine upon acknowledgment 
of the right of the cognizee as that which he hath of the 
gift of the cognizor. By this the deforciant acknowl
edged in court a former feoffment or gift in possession to 
have been made by him to the plaintiff. 2 Bl.Comm. 
352. 
Fine sur cognizance de droit tantum /fayn s�r 
k;}gnayz;}ns d;} droyt trent;}m/. A fine upon acknowledg
ment of the right merely, and not with the circumstance 
of a preceding gift from the cognizor. This was common
ly used to pass a reversionary interest which was in the 
cognizor, of which there could be no feoffment supposed. 
2 Bl.Comm. 353. 
Fine sur concessit /fayn s�r k;}nses;}t/. A fine upon 
concessit (he hath granted). A species of fine, where the 
cognizor, in order to make an end of disputes, though he 
acknowledged no precedent right, yet granted to the 
cognizee an estate de novo, usually for life or years, by 
way of supposed composition. 2 Bl.Comm. 353. 
Fine sur done grant et render Ifayn s�r down grrent ey 
rend;}r/. A double fine, comprehending the fine sur 
cognizance de droit come ceo and the fine sur concessit. 
It might be used to convey particular limitations of 
estates, whereas the fine sur cognizance de droit come 
ceo, etc., conveyed nothing but an absolute estate, either 
of inheritance, or at least freehold. In this last species 
of fines, the cognizee, after the right was acknowledged 
to be in him, granted back again or rendered to the 
FIRDWITE 
cognizor, or perhaps to a stranger, some other estate in 
the premises. 2 Bl.Comm. 353. 
Fingerprints. The distinctive pattern of lines on human 
fingertips, often used as a method of identification in 
criminal cases. For genetic fingerprinting, see DNA 
identification. 
Finire If;}nayriy/. In old English law, to fine, or pay a 
fine. To end or finish a matter. 
Finis Ifayn;}s/. Lat. An end; a fine; a boundary or 
terminus; a limit. Also in L. Lat., a fine (q.v.). 
Finis est amicabilis compositio et finalis concordia 
ex concensu et concordia domini regis vel justicia
rum /fayn;}s est rem;}keyb;}l;}s komp;}zish(iy)ow et 
f;}neybs k;}nkordiy;} eks k;}nsensyuw et k;}nkordiy;} 
dom;}nay riyj;}s vel j;}stishiyer;}m/. A fine is an amicable 
settlement and decisive agreement by consent and 
agreement of our lord, the king, or his justices. 
Finis finem litibus imponit Ifayn;}s fayn;}m lit;}b;}s 
impown;}t/. A fine puts an end to litigation. 
Finis rei attendendus est Ifayn;}s riyay ret;}ndend;}s est/. 
The end of a thing is to be attended to. 
Finis unius diei est principium alterius /fayn;}s 
y;}nay;}s dayiyay est prinsipiy;}m olt;}ray;}s/. The end of 
one day is the beginning of another. 
Finitio If;}nish(iy)ow/. An ending; death, as the end of 
life. 
Finium regundorum actio Ifayniy;}m r;}g�ndor;}m 
reksh(iy)ow/. In the civil law, action for regulating 
boundaries. The name of an action which lay between 
those who had lands bordering on each other, to settle 
disputed boundaries. 
Finors Ifayn;}rzl. Those that purify gold and silver, and 
part them by fire and water from coarser metals. In the 
English statute of 4 Hen. VII, c. 2, they are also called 
"parters." 
FlO. "Free in and out". Term in a bill of lading means 
that the shipper supervises and pays for both loading 
and discharge of cargo. Sumitomo Corp. of America v. 
M/V Sie Kim, S.D.N.Y., 632 F.Supp. 824, 834. 
FIOS. "Free in and out stowage". Term indicates that 
the vessel does not pay for the costs of loading, stowage 
or discharge. Nitram, Inc. v. Cretan Life, C.A.Fla., 599 
F.2d 1359, 1368. 
Firdfare. Sax. In old English law, a summoning forth 
to a military expedition (indictio ad profectionem mili
tarem). 
Firdiringa. Sax. A preparation to go into the army. 
Firdsocne. Sax. In old English law, exemption from 
military service. 
Firdwite. In old English law, a fine for refusing mili
tary service (mulcta detrectantis militiam). A mulct or 
penalty imposed on military tenants for their default in 
not appearing in arms or coming to an expedition. 
A fine imposed for murder committed in the army; an 
acquittance of such fine.

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FIRE 
Fire. The effect of combustion. The juridical meaning 
of the word does not differ from the vernacular. The 
word "fire," as used in insurance policies, does not have 
the technical meaning developed from analysis of its 
nature, but more nearly the popular meaning, being an 
effect rather than an elementary principle, and is the 
effect of combustion, being equivalent to ignition or 
burning. A destructive burning. 
To dismiss or discharge from a position or employ
ment. 
Firearm. An instrument used in the propulsion of shot, 
shell, or bullets by the action of gunpowder exploded 
within it. A weapon which acts by force of gunpowder. 
This word comprises all sorts of guns, fowling-pieces, 
blunderbusses, pistols, etc. In addition, grenade shells, 
fuses, and powder may be considered "firearm" even 
though disassembled. U. S. v. Shafer, C.A.Ill., 445 F.2d 
579, 583. 
The term "firearm" means any weapon which is de
signed to or may readily be converted to expel any 
projectile by the action of an explosive; or the frame or 
receiver of any such weapon. 18 U.S.C.A. §§ 232(4), 
921(3). 
Firearms Acts. Statutes (federal and state) imposing 
criminal penalties for illegal possession, sale and use of 
firearms; e.g. possession without license; carrying con
cealed weapon. See 18 U.S.C.A. § 921 et seq.; Model 
Penal Code § 5.07. 
Firebare Ifity(::»rber/. A beacon or high tower by the 
seaside, wherein are continual lights, either to direct 
vessels in the night, or to give warning of the approach 
of an enemy. 
Firebote Ifity(::»rbowt/. Allowance of wood or estovers to 
maintain competent firing for the tenant. A sufficient 
allowance of wood to burn in a house. 
Firebug. A popular phrase referring to persons guilty of 
the crime of arson; commonly understood to mean an 
incendiary, pyromaniac, or arsonist. See Arson. 
Fire district. One of the districts into which a city may 
be divided for the purpose of more efficient service by 
the fire department. 
Fire insurance. See Insurance. 
Fireman's Rule. Doctrine which holds that profession
als, whose occupations by nature expose them to particu
lar risks, may not hold another negligent for creating 
the situation to which they respond in their professional 
capacity. Koehn v. Devereaux, Ind.App. 3 Dist., 495 
N.E.2d 211, 215. 
Fire marshal or warden. Of ficial whose duties include 
supervision of firefighting and fire prevention for a 
state, county, city or town. 
Fire ordeal. See Ordeal. 
Fire sale. Sale of merchandise at reduced prices because 
of damage by fire or water; commonly, any sale at 
reduced prices, especially one brought about by an emer
gency. Fire sales are often regulated by statute or 
634 
ordinance to protect the public-buyer from deceptive 
sales practices. 
Firm. Business entity or enterprise. Unincorporated 
business. Partnership of two or more persons. See also 
Firm name. 
Binding; fixed; final; definite. 
Firma If(}rm::>/. In old English law, the contract of lease 
or letting; also the rent (or farm) reserved upon a lease 
of lands, which was frequently payable in provisions, but 
sometimes in money, in which latter case it was called 
"alba firma, " white rent. 
A tribute or custom paid towards entertaining the 
king for one night. 
Firma burgi If(}rm::> b(}rjay/. The right, in medieval 
days, to take the profits of a borough, paying for them a 
fixed sum to the crown or other lord of the borough. 
Firma feodi If(}rm::> fyuwdayi"fly(::»day/. In old English 
law, a farm or lease of a fee; a fee-farm. 
Firman If(}rmren/. A Turkish word denoting a decree or 
grant of privileges, or passport to a traveler. A passport 
granted by the Great Mogul to captains of foreign ves
sels to trade within the territories over which he has 
jurisdiction; a permit. 
Firmaratio If;}rm::>reysh(iy)ow/. The right of a tenant to 
his lands and tenements. 
Firmarium If::>rmeriy::>m/. In old records, a place in 
monasteries, and elsewhere, where the poor were re
ceived and supplied with food. Hence the word "infir
mary." 
Firmarius If::>rmeriy::>s/. L. Lat. A fermor. A lessee of 
a term. Firmarii comprehend all such as hold by lease 
for life or lives or for year, by deed or without deed. 
Firm bid. Offer which contains no conditions which 
may defeat acceptance and which by its terms remains 
open and binding until accepted or rejected. 
Firme If(}rm/. In old records, a farm. 
Firmior et potentior est operatio legis quam disposi
tio hominis /f(}rmiy::>r et p::>tenshiy::>r est op::>reysh(iy)ow 
liyj::>s kwrem disp::>zish(iy)ow h6m::>n::>s/. The operation of 
the law is firmer and more powerful [or efficacious] than 
the disposition [or will] of man. 
Firmitas If(}rm::>tres/. In old English law, an assurance 
of some privilege, by deed or charter. 
Firmly. A statement that an affiant "firmly believes" 
the contents of the affidavit imports a strong or high 
degree of belief, and is equivalent to saying that he 
"verily" believes it. The operative words in a bond or 
recognizance, that the obligor is held and "firmly 
bound," are equivalent to an acknowledgment of indebt
edness and promise to pay. 
Firm name. The name or title under which company 
transacts its business.

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Firm offer. As defined by V.C.C. is an offer by a 
merchant to buy or sell goods in a signed writing which 
by its terms give assurance that it will be held open. 
Such is not revocable for lack of consideration during 
the time stated or if no time is stated for a reasonable 
time, but in no event may such period of irrevocability 
exceed three months; but any such term of assurance on 
a form supplied by the offeree must be separately signed 
by the offeror. V.C.C. § 2-205. A binding, definite 
offer that is irrevocable for an agreed upon time. 
Firmura If�rmy:m�/. In old English law, liberty to scour 
and repair a mill-dam, and carry away the soil, etc. 
First. Preceding all others; foremost; used as an ordi
nal of one, as earliest in time or succession or foremost 
in position; in front of or in advance of all others. 
Colgate-Palmolive-Peet Co. v. V. S., C.C.A.Del., 130 F.2d 
913, 915. Initial; senior; leading; chief; entitled to 
priority or preference above others. 
As to first Cousin; Distress, and Mortgage, see those 
titles. 
First Amendment. Amendment to V.S. Constitution 
guaranteeing basic freedoms of speech, religion, press, 
and assembly and the right to petition the government 
for redress of grievances. The various freedoms and 
rights protected by the First Amendment have been 
held applicable to the states through the due process 
clause of the Fourteenth Amendment. 
First blush rule. This rule, whereby a verdict may be 
set aside as excessive only if it is so to such an extent as 
to cause the mind at first blush to conclude that it was 
returned under influence of passion or prejudice on part 
of jury, is a mechanism to assist trial court in perform
ing its responsibility when called upon to decide wheth
er award is so excessive as to appear to have been given 
under influence of passion or prejudice. Davis v. Gra
viss, Ky., 672 S.W.2d 928, 932. 
First-class. Of the most superior or excellent grade or 
kind; belonging to the head or chief or numerically 
precedent of several classes into which the general sub
ject is divided; e.g. first class mail, first class airline 
ticket. 
First-class misdemeanant. Vnder the English prisons 
act (28 & 29 Vict., c. 126, § 67) prisoners in the county, 
city, and borough prisons convicted of misdemeanors, 
and not sentenced to hard labor, were divided into two 
classes, one of which was called the "first division;" and 
it was in the discretion of the court to order that such a 
prisoner be treated as a misdemeanant of the first 
division, usually called "first-class misdemeanant," and 
as such not to be deemed a criminal prisoner, i.e., a 
prisoner convicted of a crime. 
First-class title. A marketable title, shown by a clean 
record, or at least not depending on presumptions that 
must be overcome or facts that are uncertain. See also 
Marketable title. 
First degree murder. Murder committed with deliber
ately premeditated malice aforethought, or with ex
treme atrocity or cruelty, or in the commission or at-
FIRST MORTGAGE 
tempted commission of a crime punishable with death or 
imprisonment for life, is murder in the first degree. 
State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 244. 
Distinction between "first degree murder" and "second 
degree murder" is a presence of a specific intent to kill. 
Com. v. O'Searo, 466 Pa. 224, 352 A.2d 30, 38. See also 
Murder; Premeditation. 
First devisee If�rst d:wayziyl"dev;}ziy/. The person to 
whom the estate is first given by the will; term "next 
devisee" referring to the person to whom the remainder 
is given. 
First fruits. In English ecclesiastical law, the first 
year's whole profits of every benefice or spiritual living, 
anciently paid by the incumbent to the pope, but after
wards transferred to the fund called "Queen Anne's 
Bount y," for increasing the revenue from poor livings. 
In feudal law, one year's profits of land which be
longed to the king on the death of a tenant in capite; 
otherwise called "primer seisin. " One of the incidents to 
the old feudal tenures. 2 Bl.Comm. 66, 67. 
Firsthand knowledge. Information or knowledge 
gleaned directly from its source; e.g. eyewitness to a 
homicide. 
A lay witness may not testify to a matter unless 
evidence is introduced sufficient to support a finding 
that he has personal knowledge of the matter. Federal 
Rules Evid. 602. If testimony purports to be based on 
observed facts but is in fact mere repetition of the 
statement of another, the proper objection is lack of 
first-hand knowledge. Compare Hearsay. 
First heir. The person who will be first entitled to 
succeed to the title to an estate after the termination of 
a life estate or estate for years. 
First impression case. First examination. First pre
sentation of question of law to a court for examination 
or decision. A case is said to be "of the first impression" 
when it presents an entirely novel question of law for 
the decision of the court, and cannot be governed by any 
existing precedent. 
First in, iIrst out. See FI FO. 
First lien. One which takes priority or precedence over 
all other charges or encumbrances upon the same piece 
of property, and which must be satisfied before such 
other charges are entitled to participate in the proceeds 
of its sale. See also First mortgage. 
First meeting. As used in a statute providing that, for 
insulting words or conduct to reduce homicide to man
slaughter, killing must occur immediately or at "first 
meeting" after slayer is informed thereof, quoted words 
mean first time parties are in proximity under such 
circumstances as would enable slayer to act in the 
premises. 
First meeting of creditors. In bankruptcy, the initial 
meeting called by the court for the examination of the 
bankrupt (i.e. debtor). Bankruptcy Code, § 34 1. 
First mortgage. The senior mortgage which, by reason 
of its position, has priority over all junior encumbrances.

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FIRST MORTGAGE 
The holder of the first or senior mortgage has priority 
right to payment on default. See also Mortgage. I 
First of exchange. Where a set of bills of exchange is 
drawn in duplicate or triplicate, for greater safety in 
their transmission, all being of the same tenor, and the 
intention being that the acceptance and payment of any 
one of them (the first to arrive safely) shall cancel the 
others of the set, they are called individually the "first 
of exchange," "second of exchange," etc. 
First offender. One who has never before been convict
ed of a crime and, hence, one generally given special 
consideration in the disposition of his case. For exam
ple, first offenders of less serious crimes often receive 
suspended sentences or are placed on probation. 
First policy year. In insurance, the year beginning 
with the first issuance of the insurance policy. This 
phrase in a statute eliminating suicide of insured after 
such year as defense, means year for which policy, 
annually renewed, was first issued. 
First purchaser. In the law of descent, this term signi
fies the ancestor who first acquired (in any other man
ner than by inheritance) the estate which still remains 
in his family or descendants. 
First refusal. A right to elect to take specified property 
at the same price and on the same terms and conditions 
as those contained iIi a good faith offer by a third person 
if the owner manifests a willingness to accept the offer. 
Coastal Bay Golf Club, Inc. v. Holbein, Fla.App., 231 
So.2d 854, 857. 
First sale rule. Under this doctrine, a copyright holder 
who conveys title to a particular copy of a copyrighted 
work relinquishes exclusive right to vend that particular 
copy; although holder's other rights remain intact, 
vendee holds right to distribute the transferred copy in 
whatever manner vendee chooses. U.S. v. Powell, C.A. 
Minn., 701 F.2d 70, 72. 
First vested estate. Refers to first estate to vest in 
heirs after death of ancestor. 
Fisc lfisk/. A treasury of a kingdom, nation, state, or 
other governmental body. An Anglicized form of the 
Latin "fiscus" (which see). 
Fiscal. In general, having to do with financial matters; 
i.e. money, taxes, public or private revenues, etc. Be
longing to the fisc, or public treasury. Relating to 
accounts or the management of revenue. Of or pertain
ing to the public finances of a government or private 
finances of business. 
Fiscal agent. Generally, a bank which collects and 
disburses money and serves as a depository of private 
and public funds in behalf of another. 
Fiscal court. Formerly, a ministerial and executive 
body in some states. 
Fiscal judge. A public officer named in the laws of the 
Ripuarians and some other Germanic peoples, apparent
ly the same as the "Graf", "reeve", "comes': or "count': 
and so called because charged with the collection of 
636 
public revenues, either directly or by the imposition of 
fines. 
Fiscal officers. Those charged with the collection and 
distribution of public money, as, the revenues of a state 
(State Treasurer), county, or municipal corporation. In 
private corporation, officers directly charged with duty 
to oversee financial transactions such as treasurer and 
comptroller. 
Fiscal period. In accounting, a period of time for which 
financial statements are prepared such as a year, a 
month or a quarter. See also Accounting period; Fiscal 
year. 
Fiscal year. A period of twelve consecutive months 
chosen by a business as the accounting period for annual 
reports. A corporation's accounting year. Due to the 
nature of a particular business, some companies do not 
use the calendar year for their bookkeeping. A typical 
example is the department store which finds December 
31 too early a date to close its books after Christmas 
sales. For that reason many stores close their account
ing year January 31. Their fiscal year, therefore, runs 
from February 1 of one year through January 31 of the 
next. The fiscal year of other companies may run from 
July 1 through the following June 30. Most companies, 
though, operate on a calendar year basis. See also 
Accounting period. 
Fiscus lfisk�s/. Roman law. The treasury of the prince 
or emperor, as distinguished from "rerarium, " which was 
the treasury of the state. This distinction was not 
observed in France. In course of time the fiscus ab
sorbed the rerarium and became the treasury of the 
state. The treasury or property of the state, as distin
guished from the private property of the sovereign. 
English law. The king's treasury, as the repository of 
forfeited property. The treasury of a noble, or of any 
private person. 
Fish Commissioner. A public officer of the United 
States, created by act of congress of February 9, 187 1, 
R.S. § 4395, whose duties principally concerned the 
preservation and increase throughout the country of fish 
suitable for food. Office of Commissioner of Fisheries 
has been abolished with functions transferred to the 
U.S. Fish and Wildlife Service. 
Fishery. Business or process of catching, processing, or 
selling fish. A hatchery or place for catching fish. 
A right or liberty of taking fish at a particular place 
or waters. A species of incorporeal hereditament, an
ciently termed "piscary," of which there are several 
kinds: 
Common fishery. A fishing ground where all persons 
have a right to take fish. Not to be confounded with 
"common of fishery," as to which see Common, n. 
Free fishery. A franchise in the hands of a subject, 
existing by grant or prescription, distinct from an own
ership in the soil. It is an exclusive right, and applies to 
a public navigable river, without any right in the soil.

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637 
Right of fUJhery. The general and common right of the 
citizens to take fish from public waters, such as the sea, 
great lakes, etc. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 
548, 38 L.Ed. 331. Such rights are restricted however by 
federal and state laws that establish fishing seasons, 
licensing requirements, catch limits, etc. 
Several fishery. A fishery of which the owner is also the 
owner of the soil, or derives his right from the owner of 
the soil. 2 Bl.Comm. 39, 40. One by which the party 
claiming it has the right of fishing, independently of all 
other, so that no person can have a coextensive right 
with him in the object claimed; but a partial and 
independent right in another, or a limited liberty, does 
not derogate from the right of the owner. 
Fishgarth. A dam or weir in a river for taking fish. 
Fishing trip or expedition. Using the courts to find out 
information beyond the fair scope of the lawsuit. The 
loose, vague, unfocused questioning of a witness or the 
overly broad use of the discovery process. Discovery 
sought on general, loose, and vague allegations, or on 
suspicion, surmise, or vague guesses. The scope of dis
covery may be restricted by protective orders as provid
ed for by Fed.Rule Civil P. 26(c). 
Fish royal. These were the whale and the sturgeon, 
which, when thrown ashore or caught near the coast of 
England, became the property of the king by virtue of 
his prerogative and in recompense for his protecting the 
shore from pirates and robbers. Some authorities in
clude the porpoise. 
Fistuca or festuca /f;)styuwk;)/. In old English law, the 
rod or wand, by the delivery of which the property in 
land was formerly transferred in making a feoffment. 
Called, also, "baculum, " "virga, " and "fustis." See Fes
tuca. 
Fit. Suitable or appropriate. Conformable to a duty. 
Adapted to, designed, prepared. Words "fit" and "prop
er" on issue of custody in divorce cases are usually 
interpreted as meaning moral fitness. Farwell v. Far
well, 33 Wis.2d 324, 147 N.W.2d 289, 292. 
Fitness for particular purpose. Where the seller at 
the time of contracting has reason to know any particu
lar purpose for which the goods are required and that 
the buyer is relying on the seller's skill or judgment to 
select or furnish suitable goods, there is, unless excluded 
or modified, an implied warranty that the goods shall be 
fit for such purpose. U.C.C. § 2-3 15. See also Warranty. 
Fitz. A Norman word, meaning "son." It is used in law 
and genealogy; as Fitzherbert, the son of Herbert; 
Fitzjames, the son of James; Fitzroy, the son of the king. 
It was originally applied to illegitimate children. 
Five-Mile Act. An English act of parliament, passed in 
1665, against non-conformists, whereby ministers of that 
body who refused to take the oath of non-resistance were 
prohibited from coming within five miles of any corpo
rate town, or place where they had preached or lectured 
since the passing of the act of oblivion in 1660, nullified 
by act of 1689. 
FIXED INCOME 
Fix. Adjust or regulate; determine; settle; make per
manent. Term imports finality; stability; certainty; 
definiteness. See also Firm. 
To liquidate or render certain. To fasten a liability 
upon one. To transform a possible or contingent liabili
ty into a present and definite liability. 
The illegal injection of a narcotic. People v. Kimbley, 
189 C.A.2d 300, 11 Cal.Rptr. 519, 521. 
Fixed. Prices are "fixed" when they are mutually 
agreed upon. United States v. Masonite Corporation, 
316 U.S. 265, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. See 
Fixed prices; Price-fixing. 
In copyright law, a work is "fixed" in a tangible 
medium of expression when its embodiment in a copy or 
phonorecord, by or under the authority of the author, is 
sufficiently permanent or stable to permit it to be per
ceived, reproduced, or otherwise communicated for a 
period of more than transitory duration. A work con
sisting of sounds, images, or both, that are being trans
mitted, is "fixed" for purposes of this title if a fixation of 
the work is being made simultaneously with its trans
mission. Copyright Act, 17 U.S.C.A. § 101. 
Fixed assets. Tangible property used in operating a 
business which will not be consumed or converted into 
cash or its equivalent during the current accounting 
period; e.g. plant, machinery, land, buildings, fixtures. 
Contrasted with liquid assets; e.g. cash, securities. 
Fixed bail. Setting the amount and terms of bail. 
Fixed capital. The amount of money which is perma
nently invested in the business. May also refer to 
capital invested in fixed assets (land, buildings, machin
ery, etc.). Cost of total plant and general equipment. 
Lindheimer v. Illinois Bell Telephone Co., Ill., 292 U.S. 
151, 54 S.Ct. 658, 78 L.Ed. 1182. 
Fixed charges. Costs that do not vary with changes in 
output and would continue even if firm produced no 
output at all, such as most management expenses, inter
ests on bonded debt, depreciation, property taxes, and 
other irreducible overhead. Seattle Rendering Works, 
Inc. v. Darling-Delaware Co., Inc., 104 Wash.2d 15, 701 
P.2d 502, 506. 
Fixed costs. See Fixed charges. 
Fixed debt. A more or less permanent form of debt 
commonly evidenced by bonds or debenture. See also 
Fixed indebtedness; Fixed liabilities. 
Fixed expenses. See Fixed charges. 
Fixed fee. Term commonly used in construction con
tracts which provide for payment of costs plus a prede
termined amount as a fee. 
Fixed income. That species of income which does not 
fluctuate over a period of time such as interest on bonds 
and debentures or dividends from preferred stock as 
contrasted with dividend income from common stock. 
May also refer to income received by retiree from pen
sion, annuity, or other form of fixed retirement benefit 
or income.

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FIXED INDEBTEDNESS 
Fixed indebtedness. An established or settled indebted
ness; not contingent. State ex reI. Hawkins v. State 
Board of Examiners, 97 Mont. 441, 35 P.2d 116, 120. 
See Fixed debt; Fixed liabilities. 
Fixed liabilities. Those certain and definite as to both 
obligation and amount; e.g. interest on bonds or mort
gage. Long term liabilities. See also Fixed debt. 
Fixed opinion. A conviction, bias, or prejudgment as to 
guilt or liability disqualifying juror to impartially con
sider whole evidence and apply free from bias law as 
given in charge by court. 
Fixed price contract. Type of contract in which buyer 
agrees to pay seller a definite, predetermined price, 
regardless of costs. 
Fixed prices. Prices established (i.e. mutually agreed 
upon) between wholesalers or retailers for sale or resale 
of materials, goods, or products. Agreements to fix 
prices are generally prohibited by state and federal 
statutes. See Price-fixing. 
Fixed rate loan. Loan is which interest rate does not 
change depending on market conditions. 
Fixed salary. One which is definitely ascertained and 
prescribed as to amount and time of payment, and does 
not depend upon the receipt of fees or other contingent 
emoluments; though not necessarily a salary which 
cannot be changed by competent authority. Established 
or settled, to remain for a time. 
Fixture. An article in the nature of personal property 
which has been so annexed to the realty that it is 
regarded as a part of the real property. Leawood Nat. 
Bank of Kansas City v. City Nat. Bank & Trust Co. of 
Kansas City, Mo.App., 474 S.W.2d 641, 644. That which 
is fixed or attached to something permanently as an 
appendage, and not removable. 
A thing is deemed to be affixed to real property when 
it is attached to it by roots, imbedded in it, permanently 
resting upon it, or permanently attached to what is thus 
permanent, as by means of cement, plaster, nails, bolts, 
or screws. 
Goods are fixtures when they become so related to 
particular real estate that an interest in them arises 
under real estate law; e.g., a furnace affixed to a house 
or other building; counters permanently affixed to the 
floor of a store; a sprinkler system installed in a build
ing. U.C.C. § 9-313(1 )(a). 
Agricultural fixtures. Those annexed for the purpose of 
farming. In re Shelar, D.C.Pa., 21 F.2d 136, 138. 
Trade fixtures. Articles placed in or attached to leased 
property by the tenant, to facilitate the trade or busi
ness for which he occupies the premises, or to be used in 
connection with such business, or promote convenience 
and efficiency in conducting it. Such personal property 
as merchants usually possess and annex to the premises 
occupied by them to enable them to store, handle, and 
display their goods, which are generally removable with
out material injury to the premises. Unlike regular 
638 
fixtures, trade fixtures are not considered part of the 
realty. U.S. v. Lambert, D.C.Neb., 362 F.Supp. 609, 612. 
FKA. Formerly known as. 
Flaco. A place covered with standing water. 
Flag. A national standard on which are certain em
blems; an ensign; a banner. It is carried by soldiers, 
ships, etc., and commonly displayed at forts, businesses 
and many other suitable places. 
In common parlance, the word "flag," when used as 
denoting a signal, does not necessarily mean the actual 
use of a flag, but by figure of speech the word is used in 
the secondary sense and signifies a signal given as with 
a flag, that is to say, as by a waving of the hand for the 
purpose of communicating information. 
Flag desecration. Flagrant misuse of flag by such acts 
as mutilation, defacement, or burning. Statutes making 
such acts criminal offenses (e.g. 18 U.S.C.A. § 700 (1989)) 
have been held to be unconstitutional as violating the 
freedom of expression protection of the First Amend
ment. See United States v. Eichman, 110 S.Ct. 2404 
(1990). See also Desecrate. 
Flag, duty of the. This was an ancient ceremony in 
acknowledgment of British sovereignty over the British 
seas, by which a foreign vessel struck her flag and 
lowered her top-sail on meeting the British flag. 
Flag, law of. In maritime law, the law of that nation or 
country whose flag is flown by a particular vessel. A 
shipowner who sends his vessel into a foreign port gives 
notice by his flag to all who enter into contracts with 
the master that he intends the law of that flag to 
regulate such contracts, and that they must either sub
mit to its operation or not contract with him. 
Flag of convenience. Practice of registering a mer
chant vessel with a country that has favorable (i.e. less 
restrictive) safety requirements, registration fees, etc. 
Flag of the United States. By the act entitled "An act 
to establish the flag of the United States," (Rev. St. 
§§ 1791, 1792), it was provided that, "from and after the 
fourth day of July next, the flag of the United States be 
thirteen horizontal stripes, alternate red and white; 
that the union be twenty stars, white in a blue field; 
that, on the admission of every new state into the 
Union, one star be added to the union of the flag; and 
that such addition shall take effect on the fourth day of 
July then next succeeding such admission." See 4 U.S. 
C.A. §§ 1, 2. 
Flag of truce. A white flag displayed by one of two 
belligerent parties to notify the other party that commu
nication and a cessation of hostilities are desired. 
Flagrans Ifleygrrenz/. Lat. Burning; raging; in actual 
perpetration. 
Flagrans bellum Ifleygrrenz bel;)m/. A war actually 
going on. 
Flagrans crimen Ifleygrrenz kraym;)n/. In Roman law, 
a fresh or recent crime. This term designated a crime

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639 
in the very act of its commission, or while it was of 
recent occurrence. 
Flagrant delit Iflagron deyliy/. In French law, a crime 
which is in actual process of perpetration or which has 
just been committed. 
Flagrante bello /fl�grrentiy below /. During an actual 
state of war. 
Flagrante delicto /fl�grrentiy d�liktow/. In the very act 
of committing the crime. 4 Bl.Comm. 307. 
Flagrantly against evidence /fleygr�ntliy �genst ev�
d�ns/. Without any substantial support in evidence. 
Williams v. Commonwealth, 276 Ky. 754, 125 S.W.2d 
221, 223. So much against weight of evidence as to 
shock conscience and clearly indicate passion and preju
dice of jury. 
Flagrant necessity /fleygr�nt n�ses�tiy/. A case of ur
gency rendering lawful an otherwise illegal act, as an 
assault to remove a man from impending danger. 
Flash check. A check drawn upon a banker by a person 
who has no funds at the banker's and knows that such is 
the case. Such act is a crime. Also called check kiting. 
Flat. A place covered with water too shallow for naviga
tion with vessels ordinarily used for commercial pur
poses. The space between high and low water mark 
along the edge of an arm of the sea, bay, tidal river, etc. 
A floor or separate division of a floor, fitted for house
keeping and designed to be occupied by a single family. 
An apartment on one floor. A floor or story in a 
building. A building, the various floors of which are 
fitted up as flats, either residential or business. 
In insurance, a policy without coinsurance provision; 
a provision for termination of renewal policy within 
short period after anniversary date without charge to 
insured. 
In finance, stock is sold flat when no provision is made 
for adjusting accrued dividends. 
Flat bond. Bond which includes accrued interest in the 
price. 
Flat money. Paper money which is not backed by gold 
or silver but issued by order of the government. Also 
called "fiat" money. See Federal reserve notes. 
Flat rate. Fixed amount paid each period without re
gard to actual amount of electricity, gas, etc. used in 
that particular period. 
Flat tax. In its pure form, a flat tax would eliminate all 
exclusions, deductions, and credits and impose a one
rate tax on gross income. See also Tax. 
Flattery. False or excessive praise; insincere compli
mentary language or conduct. 
Fledwite /fledw�t/. In old English law, a discharge or 
freedom from amercements where one, having been an 
outlawed fugitive, came to the place of our lord of his 
own accord. 
The liberty to hold court and take up the amerce
ments for beating and striking. 
FLIGHT FROM PROSECUTION 
The fine set on a fugitive as the price of obtaining the 
king's freedom. 
Flee from justice. Removing one's self from or secret
ing one's self within jurisdiction wherein offense was 
committed to avoid arrest; or leaving one's home, resi
dence, or known place of abode, or concealing one's self 
therein, with intent, in either case, to avoid arrest, 
detention, or punishment for some criminal offense. 
Streep v. U.S., 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365. 
See also Extradition; Flight from prosecution; Fugitive. 
Fleet. A place where the tide flows; a creek, or inlet of 
water. A company of ships or navy. A prison in 
London (so called from a river or ditch formerly in its 
vicinity), abolished by 5 & 6 Vict., c. 22. See Fleta. 
Flee to the wall. A metaphorical expression, used in 
connection with homicide done in self-defense, signifying 
the exhaustion of every possible means of escape, or of 
averting the assault, before killing the assailant. 
Fleet policy. In insurance, a blanket policy which cov
ers a number of vehicles owned by the same insured. 
Flem. In Saxon and old English law, a fugitive bondman 
or villein. 
The privilege of having the goods and fines of fugi
tives. 
Flemene frit, flemenes frinthe, or flymena frynthe 
/fliym�n fdt, fliym�nz frinO, flaym�n� frinO/. A corrupt 
pseudo-archaic form is flemens-firth, representing the 
old law Latin form, flemenaferth, of the Anglo-Saxon 
flyman fyrmth or flymena fyrmth. The reception or 
relief of a fugitive or outlaw. 
Flemeswite /fliymzw�t/. The possession of the goods of 
fugitives. 
Flet. In Saxon law, land; a house; home. 
Fleta /fliyt�/. The name given to an ancient treatise on 
the laws of England, founded mainly upon the writings 
of Bracton and Glanville, and supposed to have been 
written in the time of Edw. I. The author is unknown, 
but it is surmised that he was a judge or learned lawyer 
who was at that time confined in the Fleet prison, 
whence the name of the book. 
Flexible participation bank night. A scheme whereby 
some method is employed by means of which some 
persons obtain chances to win without purchasing the
ater tickets. Commonwealth v. Lund, 142 Pa.Super. 
208, 15 A.2d 839, 842. 
Flexible participation scheme. A scheme whereby 
sum of money is given to member of audience holding 
registered number drawn from a hopper at theater. 
The scheme is one form of a lottery. Commonwealth v. 
Lund, 142 Pa.Super. 208, 15 A.2d 839, 846. 
Flichwite /flichw�t/. In Saxon law, a fine on account of 
brawls and quarrels. 
Flight from prosecution. The evading of the course of 
justice by voluntarily withdrawing one's self in order to 
avoid arrest or detention, or the institution or continu
ance of criminal proceedings, regardless of whether one

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FLIGHT FROM PROSECUTION 
leaves jurisdiction. Also comprehends continued con
cealment. Such is considered to exist when an accused 
departs from the vicinity of the crime under circum
stances such as to indicate a sense of fear, or of guilt or 
to avoid arrest, even before the defendant has been 
suspected of the crime. Williams v. State, Fla.App., 268 
So.2d 566. See e.g. 18 U.S.C.A. §§ 1073, 1074. See also 
Escape; Flee from justice; Fugitive. 
Flim.-flam. A form of bunco or confidence game. Com
monwealth v. Townsend, 149 Pa.Super. 337, 27 A.2d 462, 
463. Procedure variously known as "flim-flam", "faith 
and trust" or "confidence game" essentially is per
formed by two operators, ostensibly strangers to each 
other, by persuading victim to turn over to one of 
operators a sum of money to demonstrate his trustwor
thiness as prerequisite to obtaining some easy money 
and, after victim has turned over his money, operators 
disappear and victim receives nothing. Few v. U. S., 
D.C.App., 248 A.2d 125. 
Flipping. Colloquial term for refinancing of consumer 
loans. 
Float. The delay in processing transactions by banks 
and others which may permit the interest-free use of 
funds for brief periods. Checks that have been credited 
to the depositor's bank account, but not yet debited to 
the drawer's bank account. The time between when a 
check is written and when such check is actually deduct
ed from bank account. In banking practice, checks and 
other items in the process of collection. "Float" in a 
checking account occurs when someone writes a check 
without sufficient funds, then covers the check before it 
returns to the bank for payment. In re Clemente, 
Bkrtcy. Ohio, 15 B.R. 937, 941. See also Kiting. 
In manufacturing, the amount of goods in the process 
of production, usually measured in terms of the number 
of units in process divided by the number of finished 
units produced per average day and expressed as, for 
example, "six days float." In finance, the unsold part of 
a security issue or the number of shares actively traded. 
To let a given currency "float" is to allow it to freely 
establish its own value as against other currencies (i.e. 
exchange rate) by the law of supply and demand. 
In land law, especially in the western states, a certifi
cate authorizing the entry, by the holder, of a certain 
quantity of land not yet specifically selected or located. 
Wisconsin Cent. R. Co. v. Price County, 133 U.S. 496, 10 
S.Ct. 341, 33 L.Ed. 687. 
Floatage. See Flotsam. 
Floater policy. In insurance, policy which is issued to 
cover items which have no fixed location such as jewelry 
or other items of personal property worn or carried 
about by the insured. See also Floating policy. 
Floating charge. A continuing charge on the assets of 
the company creating it, but permitting the company to 
deal freely with the property in the usual course of 
business until the security holder shall intervene to 
enforce his claim. Pennsylvania Co. for Insurance on 
Lives and Granting Annuities v. United Railways of 
640 
Havana & RegIa Warehouses, D.C.Me., 26 F.Supp. 379, 
387, 388. See also Floating lien. 
Floating debt. Liabilities (exclusive of bonds) payable 
on demand or at an early date; e.g. accounts payable; 
bank loans. 
Floating easement. Easement for right-of-way which, 
when created, is not limited to any specific area on 
servient tenement. City of Los Angeles v. Howard, 53 
Cal.Rptr. 274, 276, 244 C.A.2d 538. 
Floating interest rate. Rate of interest that is not fixed 
but which varies depending upon the existing rate in the 
money market. 
Floating lien. A security interest retained in collateral 
even when the collateral changes in character, classifi
cation, or location. An inventory loan in which the 
lender receives a security interest or general claim on 
all of a company's inventory. Security interest under 
which borrower pledges security for present and future 
advances. John Miller Supply, Inc. v. Western State 
Bank, 55 Wis.2d 385, 199 N.W.2d 161, 163. Such securi
ty is not only in inventory or accounts of the debtor in 
existence at the time of the original loan, but also in his 
after-acquired inventory or accounts. U.C.C. § 9-204(4). 
Floating or circulating capital. Capital retained for 
the purpose of meeting current expenditures. The capi
tal which is consumed at each operation of production 
and reappears transformed into new products. Capital 
in the form of current, as opposed to fixed, assets. 
Floating policy. Insurance policy intended to supple
ment specific insurance on property and attaches only 
when the latter ceases to cover the risk, and the purpose 
of such policy is to provide indemnity for property which 
cannot, because of its frequent change in location and 
quantity, be covered by specific insurance. Davis Yarn 
Co. v. Brooklyn Yarn Dye Co., 293 N.Y. 236, 56 N.E.2d 
564, 570. See also Floater policy. 
Floating stock. The act or process by which stock is 
issued and sold. See also Issue. 
Floating zone. A concept in zoning whereby land use is 
predetermined by reserving specified portions of an en
tire area for particular uses while not immediately 
assigning particular parcels to a certain use. Such a 
zone has no defined boundaries. It is conceived as 
floating over the entire area where it may eventually be 
established. Nick v. Planning & Zoning Com'n of Town 
of East Hampton, 6 Conn.App. 110, 503 A.2d 620, 622. 
See also Zoning. 
Flode-mark. Flood-mark, high-water mark. The mark 
which the sea, at flowing water and highest tide, makes 
on the shore. 
Flogging. Thrashing or beating with a whip or lash. 
Flood. An inundation of water over land not usually 
covered by it. Water which inundates area of surface of 
earth where it ordinarily would not be expected to be. 
Stover v. U. S., D.C.Cal., 204 F.Supp. 477, 485. See also 
Act of God; Flood water.

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Ordinary and extraordinary floods. Extraordinary or 
unprecedented floods are floods which are of such un
usual occurrence that they could not have been foreseen 
by men of ordinary experience and prudence. Ordinary 
floods are those, the occurrence of which may be reason
ably anticipated from the general experience of men 
residing in the regi<?n where such floods happen. 
Flood insurance. See Insurance. 
Floodplain. Land adjacent to rivers, which, because of 
its level topography, floods when river overflows. 
Flood water. Waters which escape from stream or 
other body of water and overflow adjacent territory, 
under conditions which do not usually occur. Everett v. 
Davis, 18 CaL2d 289, 115 P.2d 821, 823, 824. Flood 
water is the extraordinary overflow of rivers and 
streams. Keys v. Romley, 64 CaL2d 396, 50 CaLRptr. 
273, 275, 412 P.2d 529. Waters which escape from a 
watercourse in great volume and flow over adjoining 
lands in no regular channeL Kennecott Copper Corp. v. 
McDowell, 100 Ariz. 276, 413 P.2d 749, 752. 
Floor. A term used metaphorically, in parliamentary 
practice, to denote the exclusive right to address the 
body in session. A member who has been recognized by 
the chairman, and who is in order, is said to "have the 
floor", until his remarks are concluded. Similarly, the 
"floor of the house" means the main part of the hall 
where the members sit, as distinguished from the galler
ies, or from the corridors or lobbies. 
Trading area where stocks and commodities are 
bought and sold on exchanges. 
The lower limit; e.g. minimum wages; lowest price 
stock will be permitted to fall before selling. 
In England, the floor of a court is that part between 
the judge's bench, and the front row of counseL Liti
gants appearing in person, in the high court or court of 
appeal, are supposed to address the court from the floor. 
Floor broker. Member of stock or commodity exchange 
who is employee of member firm and executes trades for 
clients. 
Floored. An automobile is "floored" when it is financed 
under a trust receipt, floor plan financing agreement, or 
similar title retention document, whereby retail dealer 
obtains possession of automobile from distributor for 
exhibitiop and sale through payment to distributor by 
finance company. Commercial Credit Co. v. Barney 
Motor Co., 10 Ca1.2d 718, 76 P.2d 1181, 1183. See Floor 
plan financing. 
Floor plan financing. Arrangement for the lending of 
money to an automobile dealer, or other supplier of 
goods, so that he may purchase cars, or other articles, to 
include in his inventory; the loan being secured by the 
automobiles or other goods while in the dealer's posses
sion, and is gradually reduced as the cars or other 
merchandise are sold. Harlan v. U. S., 160 Ct.Cl. 209, 
312 F.2d 402, 406. 
Floor plan rule. Rule by which an owner who has 
placed an automobile on the floor of a retail dealer's 
FLUMEN 
showroom for sale is estopped to deny the title of an 
innocent purchaser from such dealer in the ordinary 
retail dealing, without knowledge of any conflicting 
claim. Mutual Finance Co. v. Municipal Emp. Union 
Local No. 1099, 110 Ohio App. 341, 165 N.E.2d 435. 
Floor trader. Member of stock or commodity exchange 
who trades on floor for his own account. 
Florin Ifl6hr:m/. A coin originally made at Florence 
with the value of about two English shillings. 
Flotage Ifl6wt�j�z/. See Flotsam. 
Floterial district Iflowtiriy�l distr�kt/. Term used to 
refer to a legislative district which includes within its 
boundaries several separate districts or political subdivi
sions which independently would not be entitled to 
additional representation but whose conglomerate popu
lation entitles the entire area to another seat in the 
particular legislative body being apportioned. Davis v. 
Mann, Va., 377 U.S. 678, 84 S.Ct. 1441, 1446, 12 L.Ed.2d 
609. 
Flotsam, flotsan Ifl6ts�m/. A name for the goods which 
float upon the sea when cast overboard for the safety of 
the ship, or when a ship is sunk. Distinguished from 
"jetsam" (goods deliberately thrown over to lighten ship) 
and "ligan". 
Floud-marke. In old English law, high-water mark; 
flood-mark. 
Flowage. The natural flow or movement of water from 
an upper estate to a lower one is a servitude which the 
owner of the latter must bear, though the flowage be not 
in a natural water course with well defined banks. 
Flowage easement. See Easement. 
Flower bond. Type of U.S. Savings Bond which may be 
cashed in at par to pay Federal estate taxes. 
Flowing lands. Term imports raising and setting back 
water on another's land, by a dam placed across a 
stream or water course which is the natural drain and 
outlet for surplus water on such land. 
Flow tide. High tide. See Tide. 
FLSA. See Fair Labor Standards Act. 
Fluctuating clause. Type of escalator provision which 
is inserted in some long term contracts to allow for 
increase in costs during the contract period. See also 
Escalator clause. 
Fluctus Ifl:}kt�s/. Flood; flood-tide. 
Flume. Primarily a stream or river, but usually used to 
designate an artificial channel applied to some definite 
use, and may mean either an open or a covered aque
duct. 
Flumen /fl(y)uwm�n/. In Roman law, a servitude which 
consists in the right to conduct the rain-water, collected 
from the roof and carried off by the gutters, onto the 
house or ground of one's neighbor. Also a river or 
stream. In old English law, flood; flood-tide.

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FLUMINlE VOLUCRES 
Flumina et portus publica sunt, ideoque jus piscandi 
omnibus commune est Ifl(y)uwm:m;} et p6rt;}s p;)bbk;} 
s�nt, idiy6wkwiy j;)S piskrenday 6mn;}b;}s k;}myuwniy 
est/. Rivers and ports are public; therefore the right of 
fishing there is common to all. 
Fluminre volucres Ifl(y)uwm;}niy v;}l(y)uwkriyz/. Wild 
fowl; waterfowl. 
Fluvius Ifl(y)uwviy;}s/. Lat. A river; a public river; 
flood; flood-tide. 
Fluxus Ifl;)ks;}s/. In old English law, flow. Per fluxum 
et refluxum maris, by the flow and reflow of the sea. 
Fly for it. Anciently, it was the custom in a criminal 
trial to inquire after a verdict, "Did he fly for it?" After 
the verdict, even if not guilty, forfeiture of goods fol
lowed conviction upon such inquiry. Abolished by 7 & 8 
Geo. IV, c. 28. 
Flyma Iflaym;}(n)/. In old English law, a runaway; 
fugitive; one escaped from justice, or who has no "hla
ford." 
Flyman-frymth Iflaym;}n frimOI. See Flemene frit. 
Fly-power. A written assignment in blank, whereby, on 
being attached to a stock certificate, the stock may be 
transferred. 
FMC. Federal Maritime Commission. 
FMCS. Federal Mediation and Conciliation Service. 
FMW. Fair market value. 
FNMA. Federal National Mortgage Association. 
FOB. Free on board some location (for example, FOB 
shipping point; FOB destination). A delivery term 
which requires a seller to ship goods and bear the 
expense and risk of loss to the F.O.B. point designated. 
The invoice price includes delivery at seller's expense to 
that location. Title to goods usually passes from seller 
to buyer at the FOB location. U.C.C. § 2-319(1). 
Focage If6wk;}j/. House-bote; fire-bote. 
Focale If6wk;}l/. In old English law, firewood. The 
right of taking wood for the fire. Fire-bote. 
Fodder If6d;}r/. Food for horses or cattle. In feudal 
law, the term also denoted a prerogative of the prince to 
be provided with corn, etc., for his horses by his subjects 
in his wars. 
Fodertorium lfOd;}rt6riy;}m/. Provisions to be paid by 
custom to the royal purveyors. 
Foderum I f6d;}r;}m I . See Fodder. 
Fodina. A mine. 
Fredus lfiyd;}s/. In international law, a treaty; a league; 
a compact. 
Freminre ab omnibus officiis civilibus vel publicis 
remota! sunt I fem;}niy reb 6mn;}b;}s ;}IlS(h)iy;}s s;}vibb;}s 
vel p;)bl;}s�s r�m6wtiy s�nt/. Women are excluded from 
all civil and public charges or offices. 
642 
Freminre non sunt capaces de publicis officiis 
Ifem;}niy n6n s�nt k;}peysiyz diy p;)bbs;}s ;}fis(h)iy;}s/. 
Women are not admissible to public offices. 
Fremina viro co-operta Ifem;}n;} vayro kow(ow)p;)rt;}/. 
A married woman; a feme covert. 
Freneration lfiyn;}reysh;}n/. Lending money at interest; 
the act of putting out money to usury. 
Frenus lfiyn;}s/. Lat. In the civil law, interest on mon
ey; the lending of money on interest. 
Frenus nauticum lfiyn;}s n6t;}k;}m/. Nautical or mari
time interest. 
Frenus unciarium lfiyn;}s �nsiyeriy;}m/. Interest of one
twelfth, that is, interest amounting annually to one
twelfth of the principal, hence at the rate of eight and 
one-third per cent. per annum. This was the highest 
legal rate of interest in the early times of the Roman 
republic. An extraordinary Tate of interest agreed to be 
paid for the loan of money on the hazard of a voyage; 
sometimes called "usura maritima. " 2 Bl.Comm. 458. 
The extraordinary rate of interest, proportioned to the 
risk, demanded by a person, lending money on a ship, or 
on "bottomry," as it is termed. The agreement for such 
a rate of interest is also called "{renus nauticum. " 
Freticide lfiyt;}sayd/. See Feticide. 
Fretura If;}tyur;}/. In the civil law, the produce of ani
mals, and the fruit of other property, which are acquired 
to the owner of such animals and property by virtue of 
his right. 
Fretus lfiyt;}s/. An unborn child. An infant in ventre sa 
mere. 
Fog. In maritime law, any atmospheric condition (in
cluding not only fog properly so called, but also mist or 
falling snow) which thickens the air, obstructs the view, 
and so increases the perils of navigation. 
Fogagium If;}geyjiy;}m/. In old English law, foggage or 
fog; a kind of rank grass of late growth, and not eaten 
in summer. 
Foi 1f6ylf(w)ey/fwaJ. In French feudal law, faith; feal-
ty. 
FOIA. Freedom of Information Act. 
Foiterers If6yt;}r;}rz/feyo I. Vagabonds. 
Folc-gemote If6wkg;}mowt/. (Spelled, also, folkmote, 
folcmote, folkgemote; from folc, people, and gemote, an 
assembly.) In Saxon law, a general assembly of the 
people in a town or shire. It appears to have had 
judicial functions of a limited nature, and also to have 
discharged political offices, such as deliberating upon 
the affairs of the commonwealth or complaining of mis
government, and probably possessed considerable pow
ers of local self-government. The name was also given 
to any sort of a popular assembly. 
Folc-Iand If6wklrend/. In Saxon law, land of the folk or 
people. Land belonging to the people or the public. 
Folc-Iand was the property of the community. In might 
be occupied in common, or possessed in severalty; and,

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643 
in the latter case, it was probably parceled out to indi
viduals in the folc-gemote or court of the district, and 
the grant sanctioned by the freemen who were there 
present. But, while it continued to be folc-Iand, it could 
not be alienated in perpetuity; and therefore, on the 
expiration of the term for which it had been granted, it 
reverted to the community, and was again distributed by 
the same authority. It was subject to many burdens and 
exactions from which boc-Iand was exempt. 
Folc-mote If6wkmowt/. A general assembly of the peo
ple, under the Saxons. See Folc-gemote. 
Folc-right If6wkrayt/. The common right of all the 
people. 1 Bl.Comm. 65, 67. 
The jus commune, or common law, mentioned in the 
laws of King Edward the Elder, declaring the same 
equal right, law, or justice to be due to persons of all 
degrees. 
Foldage. In old English law, a privilege possessed in 
some places by the lord of a manor, which consisted in 
the right of having his tenant's sheep to feed on his 
fields, so as to manure the land. The name of foldage is 
also given in parts of Norfolk to the customary fee paid 
to the lord for exemption at certain times from this 
duty. 
Fold-course. In English law, land to which the sole 
right of folding the cattle of others is appurtenant. 
Sometimes it means merely such right of folding. The 
right of folding on another's land, which is called "com
mon foldage." 
Fold-soke. A feudal service which consisted in the obli
gation of the tenant not to have a fold of his own but to 
have his sheep lie in the lord's fold. 
Folgarii If�lgeriyay/. Menial servants; followers. 
Folgere If6wlj�r/. In old English law, a freeman, who 
had no house or dwelling of his own, but was the 
follower or retainer of another (heorthfrest), for whom 
he performed certain predial services. 
Folgers If6wlj�rz/. Menial servants or followers. 
Folgoth. Official dignity. 
Folie brightique !foliy braytiyk/. See Insanity. 
Folie circulaire !foliy sirkyuwler/. See Insanity. 
Folio. A leaf of a book or manuscript. A page number. 
In the ancient lawbooks it was the custom to number 
the leaves, instead of the pages; hence a folio would 
include both sides of the leaf, or two pages. The refer
ences to these books are made by the number of the 
folio, the letters "a" and "b" being added to show which 
of the two pages is intended. 
A large size of book, the page being obtained by 
folding the sheet of paper once only in the binding. 
Many of the ancient lawbooks are folios. 
When used in connection with legal documents, it 
formerly meant a certain number of words varying from 
72 to 100, but generally in the United States it consisted 
of 100. Such was used as a unit for measuring the text 
length of the legal instrument. 
FOOTGELD 
Placing a serial number on each leaf or page of 
printed matter. 
Folk-land; folk-mote !f6wkh�nd/f6wkmowt/. See Folc
land; Folc-gemote. 
Follow. To conform to, comply with, or be fixed or 
determined by; as in the expressions "costs follow the 
event of the suit," "the situs of personal property follows 
that of the owner," "the offspring follows the mother" 
(partus sequitur ventrem). To go, proceed, or come after. 
To seek to obtain; to accept as authority. 
Fonds de commerce. Fr. Goods of commerce, and 
trade. 
Fonds et biens. Fr. In French law, goods and effects; 
including realty. 
Fonds perdus. In French law, a capital is said to be 
invested it fonds perdus when it is stipulated that in 
consideration of the payment of an amount as interest, 
higher than the normal rate, the lender shall be repaid 
his capital in this manner. The borrower, after paying 
the interest during the period determined, is free as 
regards the capital itself. 
Fonsadera Ifonsaoer�/. In Spanish law, any tribute or 
loan granted to the king for the purpose of enabling him 
to defray the expenses of a war. 
Fontana Ifontren�/. A fountain or spring. 
Food and Drug Administration. An agency within the 
Department of Health and Human Services established 
to set safety and quality standards for foods, drugs, 
cosmetics, and other household substances sold as con
sumer products. Among the basic tasks of the FDA are 
research, inspection and licensing of drugs for manufac
turing and distribution. This agency is in charge of 
administering Food, Drug and Cosmetic Act (q. v.). 
Food, Drug and Cosmetic Act. Federal Act of 1938 
prohibiting the transportation in interstate commerce of 
adulterated or misbranded food, drugs and cosmetics. 
Act is administered by Food and Drug Administration. 
Foot. A measure of length containing twelve inches or 
one-third of a yard. The base, bottom, or foundation of 
anything; and, by metonomy, the end or termination; 
as the foot of a fine. The terminal part of the leg. That 
part of leg at or below ankle joint; including the arch. 
Trustees for Arch Preserver Shoe Patents v. James 
McCreery & Co., Cust. & Pat.App., 49 F.2d 1068, 107 1. 
See also Foundation. 
Foot acre. One acre of coal one foot thick. 
Foot-frontage rule. Under rule, assessment is confined 
to actual frontage on line of improvement, and depth of 
lot, number or character of improvements, or value 
thereof, is immaterial. 
Footgeld Ifutgeld/. In the forest law, an amercement 
for not cutting out the ball or cutting off the claws of a 
dog's feet (expeditating, him). To be quit of footgeld is 
to have the privilege of keeping dogs in the forest 
unlawed without punishment or control.

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FOOT OF THE FINE 
Foot of the fine. At common law, the fifth part of the 
conclusion of a fine. It includes the whole matter, 
reciting the names of the parties, day, year, and place, 
and before whom it was acknowledged or levied. 2 
BI.Comm. 351. 
Foot pound. A unit of energy, or work, equal to work 
done in raising one pound avoirdupois against the force 
of gravity to the height of one foot. 
Footprints. In the law of evidence, impressions made 
upon earth, snow, or other surface by the feet of persons, 
or by their shoes, boots, or other foot covering. 
For. Fr. In French law, a tribunal. Le for interieur, 
the interior forum; the tribunal of conscience. 
In behalf of, in place of, in lieu of, instead of, repre
senting, as being which, or equivalent to which, and 
sometimes imports agency. Medler v. Henry, 44 N.M. 
63, 97 P.2d 661, 662. During; throughout; for the 
period of, as, where a notice is required to be published 
"for" a certain number of weeks or months. Duration, 
when put in connection with time. Progressive Building 
& Loan Ass'n v. McIntyre, 169 Tenn. 491, 89 S.W.2d 336, 
337. 
In consideration for; as an equivalent for; in ex
change for; in place of; as where property is agreed to 
be given "for" other property or "for" services. 
Belonging to, exercising authority or functions within, 
as where one describes himself as "a notary public in 
and for the said county." 
By reason of; with respect to; for benefit of; for use 
of; in consideration of. The cause, motive or occasion of 
an act, state or condition. American Ins. Co. v. Naylor, 
103 Colo. 461, 87 P.2d 260, 265. Used in sense of 
"because of," "on account of," or "in consequence of." 
Kelly v. State Personnel Board of California, 31 Cal. 
App.2d 443, 88 P.2d 264, 266. By means of, or growing 
out of. 
It connotes the end with reference to which anything 
is, acts, serves, or is done. In consideration of which, in 
view of which, or with reference to which, anything is 
done or takes place. In direction of; with view of 
reaching; with reference to needs, purposes or uses of; 
appropriate or adapted to; suitable to purpose, require
ment, character or state of. 
For account of. Language introducing name of person 
entitled to receive proceeds of indorsed note or draft. 
Equitable Trust Co. of New York v. Rochling, 275 U.S. 
248, 48 S.Ct. 58, 59, 72 L.Ed. 264. 
Foraker Act Ifor;}k;}r rekt/. A name usually given to the 
act of congress of April 12, 1900, 31 Stat.L. 77, c. 191 (48 
U.S.C.A. § 731 et seq.), which provided civil government 
for Puerto Rico. See Downes v. Bidwell, 182 U.S. 244, 
390, 21 S.Ct. 770, 45 L.Ed. 1088. 
Foraneus If;}reyniy;}s/. One from without; a foreigner; 
a stranger. 
Forathe. In forest law, one who could make oath, i.e., 
bear witness for another. 
644 
Forbalca Iforbo(l)k;}I . In old records, a forebalk; a balk 
(that is, an unplowed piece of land) lying forward or next 
the highway. 
Forbannitus Iforbren;}t;}s/. A pirate; an outlaw; one 
banished. 
Forbarrer. L. Fr. To bar out; to preclude; hence, to 
estop. 
Forbatudus. In old English law, the aggressor slain in 
combat. 
Forbearance. Refraining from doing something that 
one has a legal right to do. Giving of further time for 
repayment of obligation or agreement not to enforce 
claim at its due date. Crestwood Lumber Co. v. Citizens 
Sav. & Loan Ass'n, 83 C.A.3d 819, 148 Cal.Rptr. 129, 131. 
A delay in enforcing a legal right. Act by which credi
tor waits for payment of debt due him by debtor after it 
becomes due. Upton v. Gould, 64 Cal.App.2d 814, 149 
P.2d 731, 733. 
Refraining from action. The term is used in this 
sense in general jurisprudence, in contradistinction to 
"act." 
Within usury law, term signifies contractual obli
gation of lender or creditor to refrain, during given 
period of time, from requiring borrower or debtor to 
repay loan or debt then due and payable. Hafer v. 
Spaeth, 22 Wash.2d 378, 156 P.2d 408, 411. 
As regards forbearance as a form of consideration, see 
Consideration. 
For cause. With respect to removal from office "for 
cause", means for reasons which law and public policy 
recognize as sufficient warrant for removal and such 
cause is "legal cause" and not merely a cause which the 
appointing power in the exercise of discretion may deem 
sufficient. State ex reI. Nagle v. Sullivan, 98 Mont. 425, 
40 P.2d 995, 998. They do not mean removal by arbi
trary or capricious action but there must be some cause 
affecting and concerning ability and fitness of official to 
perform duty imposed on him. The cause must be one 
in which the law and sound public policy will recognize 
as a cause for official no longer occupying his office. 
Napolitano v. Ward, D.C.Ill., 317 F.Supp. 79, 81. 
Force. Power, violence, compUlsion, or constraint exert
ed upon or against a person or thing. Landry v. Daley, 
D.C.IlI., 280 F.Supp. 938, 954. Power dynamically con
sidered, that is, in motion or in action; constraining 
power, compulsion; strength directed to an end. Com
monly the word occurs in such connections as to show 
that unlawful or wrongful action is meant; e.g. forcible 
entry. 
Power statically considered; that is at rest, or latent, 
but capable of being called into activity upon occasion 
for its exercise. Efficacy; legal validity. This is the 
meaning when we say that a statute or a contract is "in 
force." 
In old English law, a technical term applied to a 
species of accessary before the fact. 
See also Constructive force; Excessive force; Interven
ing force; Reasonable force.

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645 
Deadly force. Force which the actor uses with the 
purpose of causing or which he knows to create a sub
stantial risk of causing death or serious bodily harm. 
Purposely firing a firearm in the direction of another 
person or at a vehicle in which another person is be
lieved to be constitutes deadly force. A threat to cause 
death or serious bodily harm, by the production of a 
weapon or otherwise, so long as the actor's purpose is 
limited to creating an apprehension that he will use 
deadly force if necessary, does not constitute deadly 
force. Model Penal Code, § 3.11. 
Unlawful force. Force, including confinement, which is 
employed without the consent of the person against 
whom it is directed and the employment of which consti
tutes an offense or actionable tort or would constitute 
such offense or tort except for a defense (such as the 
absence of intent, negligence, or mental capacity; du
ress; youth; or diplomatic status) not amounting to a 
privilege to use the force. Assent constitutes consent, 
within the meaning of this Section, whether or not it 
otherwise is legally effective, except assent to the inflic
tion of death or serious bodily harm. Model Penal Code, 
§ 3.1 1(1). See also Battery. 
Force and arms. A phrase used in common law plead
ing in declarations of trespass and in indictments, but 
now unnecessary, to denote that the act complained of 
was done with violence. 
Force and fear. Called also "vi metuque" means that 
any contract or act extorted under the pressure of force 
(vis) or under the influence of fear (metus) is voidable on 
that ground, provided, of course, that the force or the 
fear was such as influenced the party. 
Forced heirs. Those persons whom the testator or do
nor cannot deprive of the portion of his estate reserved 
for them by law, except in cases where he has a just 
cause to disinherit them (e.g., person's spouse). See 
Election by spouse. 
Forced sale. A sale made at the time and in the 
manner prescribed by law, in virtue of execution issued 
on a judgment already rendered by a court of competent 
jurisdiction; a sale made under the process of the court, 
and in the mode prescribed by law. A sale which is not 
the voluntary act of the owner, such as to satisfy a debt, 
whether of a mortgage, judgment, tax lien, etc. Sale 
brought about in shorter time than normally required 
because of creditor's action. For comparable sale pur
poses in eminent domain proceedings, "forced sales" are 
those occurring as result of legal process, such as tax 
sale. Colonial Pipeline Co. v. Gimbel, 54 Md.App. 32, 
456 A.2d 946, 952. See also Fire sale; Foreclosure; 
Judicial sale; Sale (Tax-sale); Sheriff's sale. 
Force majesture Ifors mazh;}stylir/. Includes light
nings, earthquakes, storms, flood, sunstrokes, freezing, 
etc., wherein latter two can be considered hazards in 
contemplation of employer within compensation acts. 
See also Act of God; Vis major. 
Force majeure !fors mazhuri"m;}zh;}r/. Fr. In the law 
of insurance, superior or irresistible force. Such clause 
FORCIBLE ENTRY 
is common in construction contracts to protect the par
ties in the event that a part of the contract cannot be 
performed due to causes which are outside the control of 
the parties and could not be avoided by exercise of due 
care. An oil and gas lease clause that provides that the 
lessee will not be held to have breached the lease terms 
while the lessee is prevented by force majeure (literally, 
"superior force") from performing. Typically, such 
clauses specifically indicate problems beyond the reason
able control of the lessee that will excuse performance. 
See also Act of God; Vis major. 
Forces !fors;}z/. The military and naval power of the 
country. 
Forcheapum Iforchiyp;}m/. Pre-emption; forestalling 
the market. 
Forcible. Effected by force used against opposition or 
resistance; obtained by compulsion or violence. Offutt 
v. Liberty Mut. Ins. Co., 251 Md. 262, 247 A.2d 272, 276. 
Forcible detainer. A summary, speedy and adequate 
statutory remedy for obtaining possession of premises by 
one entitled to actual possession. Casa Grande Trust 
Co. v. Superior Court In and For Pinal County, 8 Ariz. 
App. 163, 444 P.2d 521, 523. Exists where one original
ly in rightful possession of realty refuses to surrender it 
at termination of his possessory right. Sayers & Muir 
Service Station v. Indian Refining Co., 266 Ky. 779, 100 
S.W.2d 687, 689. Forcible detainer may ensue upon a 
peaceable entry, as well as upon a forcible entry; but it 
is most commonly spoken of in the phrase "forcible 
entry and detainer." See also Ejectment; Eviction; Forc
ible entry and detainer; Process (Summary process). 
Forcible entry. At common law, violently taking pos
session of lands and tenements with menaces, force, and 
arms, against the will of those entitled to the possession, 
and without the authority of law. 4 Bl.Comm. 148. 
Entry accompanied with circumstances tending to excite 
terror in the occupant, and to prevent him from main
taining his rights. Barbee v. Winnsboro Granite Corpo
ration, 190 S.C. 245, 2 S.E.2d 737, 739. Angry words 
and threats of force may be sufficient. Calidino Hotel 
Co. of San Bernardino v. Bank of America Nat. Trust & 
Savings Ass'n, 31 Cal.App.2d 295, 87 P.2d 923, 931. 
Every person is guilty of forcible entry who either (1) 
by breaking open doors, windows, or other parts of a 
house, or by any kind of -violence or circumstance of 
terror, enters upon or into any real property; or (2) who, 
after entering peaceably upon real property, turns out 
by force, threats, or menacing conduct the party in 
possession. Code Civil Proc.Cal. § 1159. 
In many states, an entry effected without consent of 
rightful owner, or against his remonstrance, or under 
circumstances which amount to no more than a mere 
trespass, is now technically considered "forcible," while 
a detainer of the property consisting merely in the 
refusal to surrender possession after a lawful demand, is 
treated as a "forcible" detainer, the "force" required at 
common law being now supplied by a mere fiction. 
See Ejectment; Eviction; Forcible detainer; Forcible en
try and detainer; Process (Summary process).

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FORCIBLE ENTRY AND DETAINER 
Forcible entry and detainer. A summary proceeding 
for restoring to possession of land by one who is wrong
fully kept out or has been wrongfully deprived of the 
possession. Wein v. Albany Park Motor Sales Co., 312 
Ill.App. 357, 38 N.E.2d 556, 559. An action to obtain 
possession or repossession of real property which had 
been transferred from one to another pursuant to con
tract; such proceeding is not an action to determine 
ownership of title to property. Behrle v. Beam, 6 Ohio 
St.3d 41, 6 O.B.R. 61, 451 N.E.2d 237, 240. See also 
Ejectment; Eviction; Forcible detainer; Process (Summa
ry process). 
Forcible rape. Aggravated form of statutory rape made 
punishable by statute. See also Rape. 
Forcible trespass. An invasion of the rights of another 
with respect to his personal property, of the same char
acter, or under the same circumstances, which would 
constitute a "forcible entry and detainer" of real proper
ty at common law. It consists in taking or seizing the 
personal property of another by force, violence, or intim
idation or in forcibly injuring it. There must be actual 
violence used, or such demonstration of force as is calcu
lated to intimidate or tend to a breach of the peace. It 
is not necessary that the person be actually put in fear. 
For collection. A form of indorsement on a note or 
check where it is not intended to transfer title to it or to 
give it credit or currency, but merely to authorize the 
transferee to collect the amount of it. Such an indorse
ment is restrictive. V.C.C. § 3-205(c). 
Forda If6rd�/. In old records, a ford or shallow, made by 
damming or penning up the water. 
Fordal If6rd�l/. A butt or headland, jutting out upon 
other land. 
Fordanno Ifordrenow/. In old European law, he who 
first assaulted another. 
Fore If6r/. Sax. Before. Fr. Out. 
Forebearance. See Forbearance. 
Foreclose Iforkl6wz/. To shut out; to bar; to termi
nate. Method of terminating mortgagor's right of re
demption. Hibernia Savings & Loan Soc. v. Lauffer, 41 
Cal.App.2d 725, 107 P.2d 494, 497. See also Foreclosure. 
Foreclosure Iforkl6wzh�r/. To shut out, to bar, to de
stroy an equity of redemption. Anderson v. Barr, 178 
Oklo 508, 62 P.2d 1242, 1246. A termination of all rights 
of the mortgagor or his grantee in the property covered 
by the mortgage. The process by which a mortgagor of 
real or personal property, or other owner of property 
subject to a lien, is deprived of his interest therein. A 
proceeding in equity whereby a mortgagee either takes 
title to or forces the sale of the mortgagor's property in 
satisfaction of a debt. Procedure by which mortgaged 
property is sold on default of mortgagor in satisfaction 
of mortgage debt. If proceeds from sale fail to pay debt 
in full, mortgagee creditor may obtain a Deficiency judg
ment (q.v.). 
646 
A default under a security interest in personal proper
ty can be foreclosed by a judicial sale of collateral. 
V.C.C. § 9-501. 
In common usage, refers to enforcement of lien, trust 
deed, or mortgage in any method provided by law. 
See also Equity of redemption. 
Statutory foreclosure. The term is sometimes applied to 
foreclosure by execution of a power of sale contained in 
the mortgage, without recourse to the courts, as it must 
conform to the provisions of the statute regulating such 
sales. 
Strict foreclosure. A decree of strict foreclosure of a 
mortgage finds the amount due under the mortgage, 
orders its payment within a certain limited time, and 
provides that, in default of such payment, the debtor's 
right and equity of redemption shall be forever barred 
and foreclosed; its effect is to vest the title of the 
property absolutely in the mortgagee, on default in 
payment, without any sale of the property. 
Foreclosure decree. Properly speaking, a decree order
ing the strict foreclosure of a mortgage; but the term is 
also loosely and conventionally applied to a decree or
dering the sale of the mortgaged premises and the 
satisfaction of the mortgage out of the proceeds. 
Foreclosure sale. A sale of mortgaged property to ob
tain satisfaction of the mortgage out of the proceeds, 
whether authorized by a decree of the court or by a 
power of sale contained in the mortgage. See also 
Deficiency judgment; Forced sale. 
Foregift If6rgiftl. A premium for a lease. 
Foregoers Iforg6w�rz/. Royal purveyors. 
Forehand rent. In English law, rent payable in ad
vance; or, more properly, a species of premium or bonus 
paid by the tenant on the making of the lease, and 
particularly on the renewal of leases by ecclesiastical 
corporations. 
Foreign. Belonging to another nation or country; be
longing or attached to another jurisdiction; made, done, 
or rendered in another state or jurisdiction; subject to 
another jurisdiction; operating or solvable in another 
territory; extrinsic; outside; extraordinary. Nonresi
dent person, corporation, executor, etc. 
As to foreign Admin istrator(-trix); Assignment; Attach
ment; Bill (Bill of exchange); Charity; Commerce; Corpo
ration; County; Creditor; Divorce; Document; Domicile; 
Factor; Judgment; Jury; Min ister; Plea; Port; State; Ves
sel, and Voyage, see those titles. 
Foreign agent. Person who registers with the federal 
government as a lobbyist representing the interests (e.g. 
import quotas, tourism, foreign aid) of a foreign nation 
or corporation. See 22 V.S.C.A. § 611 et seq. 
Foreign answer. In old English practice, an answer 
which was not triable in the county where it was made. 
Foreign apposer If6hr�n �p6wz�r/. In England, an 
officer in the exchequer who examines the sheriffs 
estreats, comparing them with the records, and apposes

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(interrogates) the sheriff as to each particular sum 
therein. 
Foreign bill of exchange. Bill of exchange which is 
drawn in one state or country and payable in another 
state or country. See also Bill (Bill of exchange). 
Foreign coins. Coins issued as money under the author
ity of a foreign government. 
Foreign commerce. Trade between persons in the Unit
ed States and those in a foreign country. See also 
Commerce; Foreign trade. 
Foreign consulate. The office or headquarters of a 
consul who represents a foreign country in the United 
States. 
Foreign corporation. A corporation doing business in 
one state though chartered or incorporated in another 
state is a foreign corporation as to the first state, and, as 
such, is required to consent to certain conditions and 
restrictions in order to do business in such first state. 
Rev. Model Bus. Corp. Act § 1.40. Under federal tax 
laws, a foreign corporation is one which is not organized 
under the laws of one of the states or territories of the 
United States. I.R.C. § 7701(a)(5). Service of process on 
foreign corporations is governed by Fed.R.Civil P. 4. See 
also Corporation; Controlled foreign corporation. 
U.S. owned foreign corporation. A foreign corporation 
in which 50 percent or more of the total combined 
voting power or total value of the stock of the corpora
tion is held directly or indirectly by U.S. persons. A 
U.S. corporation is treated as a U.S.-owned foreign cor
poration if dividend or interest income paid by such 
corporation is classified as foreign source under I.R.C. 
§ 861. 
Foreign courts. The courts of a foreign state or nation. 
In the United States, this term is frequently applied to 
the courts of one of the states when their judgments or 
records are introduced in the courts of another. 
Foreign diplomatic or consular offices. Of ficials ap
pointed by a foreign government to protect the interest 
of its nationals in the United States. See also Foreign 
agent. 
Foreign dominion. In English law, this means a coun
try which at one time formed part of the dominions of a 
foreign state or potentate, but which by conquest or 
cession has become a part of the dominions of the 
British crown. 
Foreigner. In old English law, this term, when used 
with reference to a particular city, designated any per
son who was not an inhabitant of that city. According 
to later usage, it denotes a person who is not a citizen or 
subject of the state or country of which mention is made, 
or any one owing allegiance to a foreign state or sover
eign. 
Person belonging to or under citizenship of another 
country. 
Foreign exchange. Conversion of the money of one 
country into its equal of another country. Process by 
FOREIGN RECEIVER 
which money of one country is used to pay balances due 
in another country. 
Foreign exchange market. Institution through which 
foreign currencies are bought and sold. 
Foreign exchange rate. The rate or price for which the 
currency of one country may be exchanged for the 
money of another country. See also Float. 
Foreign immunity. The immunity of a foreign sover
eign, its agencies or instrumentalities, from suit in Unit
ed States courts. Federal court jurisdiction is limited to 
claims falling within one of the enumerated exceptions 
to the Foreign Sovereign Immunities Act of 1976. 28 
U.S.C.A. §§ 1602-1607. Argentine Republic v. Amerada 
Hess Shipping Corp., 488 U.S. 428, 109 S.Ct. 683, 102 
L.Ed.2d 818. 
Foreign judgment. See Judgment. 
Foreign jurisdiction. Any jurisdiction foreign to that of 
the forum; e.g. of a sister state or another country. 
Also the exercise by a state or nation of jurisdiction 
beyond its own territory. Long-arm service of process is 
a form of such foreign or extraterritorial jurisdiction. 
See 28 U.S.C.A. § 1330. See also Foreign service of 
process. 
Foreign laws. The laws of a foreign country, or of a 
sister state. In conflicts of law, the legal principles of 
jurisprudence which are part of the law of a sister state 
or nation. Foreign laws are additions to our own laws, 
and in that respect are called "jus receptum". 
Foreign money. The currency or medium of exchange 
of a foreign country. See also Foreign exchange. 
Foreign personal holding company (FPHC). A for
eign corporation in which (1) 60 percent or more of the 
gross income for the taxable year is FPHC income and 
(2) more than 50 percent of the total combined voting 
power or the total value of the stock is owned, directly 
or indirectly, by five or fewer individuals who are U.S. 
persons (the U.S. group) at any time during the taxable 
year. The 60 percent of gross income test drops to 50 
percent or more after the 60 percent requirement has 
been met for one tax year, until the foreign corporation 
does not meet the 50 percent test for three consecutive 
years or the stock ownership requirement is not met for 
an entire tax year. 
Foreign personal representative. A personal repre
sentative of another jurisdiction. Uniform Probate 
Code, § 1-20 1(14). 
Foreign proceeding. Proceeding, whether judicial or 
administrative and whether or not under bankruptcy 
law, in a foreign country in which the debtor's domicile, 
residence, principal place of business, or principal assets 
were located at the commencement of such proceeding, 
for the purpose of liquidating an estate, adjusting debts 
by composition, extension, or discharge, or effecting a 
reorganization. Bankruptcy Code § 101. See also For
eign jurisdiction; Foreign service of process. 
Foreign receiver. An official receiver appointed by a 
court of another state or nation.

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FOREIGN REPRESENTATIVE 
Foreign representative. Duly selected trustee, admin
istrator, or other representative of an estate in a foreign 
proceeding. Bankruptcy Code § 101. 
Foreign service. The United States Foreign Service 
conducts relations with foreign countries through its 
representatives at embassies, missions, consulates gener
al, consulates, and consular agencies throughout the 
world. These representatives and agencies report to the 
State Department. 
Feudal law. In feudal law, was that whereby a mesne 
lord held of another, without the compass of his own fee, 
or that which the tenant performed either to his own 
lord or to the lord paramount out of the fee. Foreign 
service seems also to have been used for knight's service, 
or escuage uncertain. 
Foreign service of process. Service of process for the 
acquisition of jurisdiction by a court in the United 
States upon a person in a foreign country is prescribed 
by Fed.R.Civil P. 4(i) and 28 U.S.C.A. § 1608. Service of 
process on foreign corporations is governed by Fed.R. 
Civil P. 4(d)(3). 
Foreign states. Nations which are outside the United 
States. Term may also refer to another state; i.e. a 
sister state. 
The term "foreign nations," as used in a statement of 
the rule that the laws of foreign nations should be 
proved in a certain manner, should be construed to 
mean all nations and states other than that in which the 
action is brought; and hence one state of the Union is 
foreign to another, in the sense of that rule. 
A "foreign state" within statute providing for expatri
ation of American citizen who is naturalized under laws 
of foreign state is a country which is not the United 
States, or its possession or colony, an alien country, 
other than our own. Kletter v. Dulles, D.C.D.C., 111 
F.Supp. 593, 598. 
Foreign substance. Substance occurring in any part of 
the body or organism where it is not normally found, 
usually introduced from without. Adams v. Great At
lantic & Pacific Tea Co., 251 N.C. 565, 112 S.E.2d 92, 94. 
A "foreign substance" within rule that a cause of action 
against physician who leaves a foreign substance in body 
does not begin until patient discovers or should have 
discovered the presence of such substance includes drugs 
and medicine which are introduced into the body and 
which are not organically connected or naturally relat
ed. Rothman v. Silber, 83 N.J. Super. 192, 199 A.2d 86, 
89, 92. 
Foreign tax credit or deduction. A U.S. citizen or 
resident who incurs or pays income taxes to a foreign 
country on income subject to U.S. tax may be able to 
claim some of these taxes as a deduction or a credit 
against the U.S. income tax. I.R.C. §§ 27 and 901-905. 
Foreign trade. Commercial interchange of commodities 
between different countries; export and import trade. 
Standard Oil Co. of New Jersey v. United States, 29 
Cust. & Pat.App. 82, 120 F.2d 340, 342. See also Foreign 
commerce. 
648 
Foreign trade zone. Areas within the United States, 
but outside the customs zone, where foreign merchan
dise may be brought without formal customs entry and 
payment of duty for virtually any legal purpose includ
ing storage, grading, sampling, cleaning, or packaging. 
Duties are paid when the products enter the U.S. mar
ket. See also Free port. 
Foreign will. Will of person not domiciled within state 
at time of death. De Tray v. Hardgrove, Tex.Com.App., 
52 S.W.2d 239, 240. 
Forejudge. In old English law and practice, to expel 
from court for some offense or misconduct. When an 
officer or attorney of a court was expelled for any 
offense, or for not appearing to an action by bill filed 
against him, he was said to be forejudged the court. 
To deprive or put out of a thing by the judgment of a 
court. To condemn to lose a thing. 
To expel or banish. 
Forejudger. In English practice, a judgment by which a 
man is deprived or put out of a thing; a judgment of 
expUlsion or banishment. 
Foreman or foreperson. The presiding member of a 
grand or petit jury, who speaks or answers for the jury. 
Person designated by employer-management to direct 
work of employees; superintendent, overseer. 
Fore-matron /f6rmeytr;}n/. In a jury of women this 
word corresponds to the foreman of a jury. 
Forensic. Belonging to courts of justice. 
Forensic engineering. The application of the principles 
and practice of engineering to the elucidation of ques
tions before courts of law. Practice by legally qualified 
professional engineers who are experts in their field, by 
both education and experience, and who have experience 
in the courts and an understanding of jurisprudence. A 
forensic engineering engagement may require investiga
tions, studies, evaluations, advice to counsels, reports, 
advisory opinions, depositions and/or testimony to assist 
in the resolution of disputes relating to life or property 
in cases before courts, or other lawful tribunals. 
Forensic linguistics. A technique concerned with in
depth evaluation of linguistic characteristics of text, 
including grammar, syntax, spelling, vocabulary and 
phraseology, which is accomplished through a compari
son of textual material of known and unknown author
ship, in an attempt to disclose idiosyncracies peculiar to 
authorship to determine whether the authors could be 
identicaL U.S. v. Clifford, C.A.Pa., 704 F.2d 86. See 
Fed.Evid.R. 901. See also Comparative interpretation; 
Comparative stylistics; Comparison of handwriting. 
Forensic medicine. That science which teaches the 
application of every branch of medical knowledge to the 
purposes of the law; hence its limits are, on the one 
hand, the requirements of the law, and, on the other, 
the whole range of medicine. Anatomy, physiology, 
medicine, surgery, chemistry, physics, and botany lend 
their aid as necessity arises; and in some cases all these 
branches of science are required to enable a court of law

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to arrive at a proper conclusion on a contested question 
affecting life or property. 
Forensic pathology. That branch of medicine dealing 
with diseases and disorders of the body in relation to 
legal principles and cases. 
Forensic psychiatry. That branch of medicine dealing 
with disorders of the mind in relation to legal principles 
and cases. 
Forensis If;:)rEms;:)sl. In Civil law, belonging to or con
nected with a court; forensic. Forensis homo, an advo
cate; a pleader of causes; one who practices in court. 
Fore-oath If6rowOI. Before the Norman Conquest, an 
oath required of the complainant in the first instance (in 
the absence of manifest facts) as a security against 
frivolous suits. 
Foreschoke. Foresaken; disavowed. 
Foreseeability. The ability to see or know in advance; 
e.g. the reasonable anticipation that harm or injury is a 
likely result from certain acts or omissions. Emery v. 
Thompson, 347 Mo. 494, 148 S.W.2d 479, 480. In tort 
law, the "foreseeability" element of proximate cause is 
established by proof that actor, as person of ordinary 
intelligence and prudence, should reasonably have antic
ipated danger to others created by his negligent act. 
Northwest Mall, Inc. v. Lubri-Lon Intern., Inc., Tex.App. 
14 Dist., 681 S.W.2d 797, 803. That which is objectively 
reasonable to expect, not merely what might conceivably 
occur. Augenstine v. Dico Co., Inc., 1 Dist., 135 Ill. 
App.3d 273, 90 Il1.Dec. 314, 317, 481 N.E.2d 1225, 1228. 
See also Assumption of risk. 
Foreseeable consequences. See Foreseeability. 
Foreshore. The strip of land that lies between the high 
and low water marks and that is alternately wet and 
dry according to the flow of the tide. According to the 
medium line between the greatest and least range of 
tide (spring tides and neap tides). See also Shore. 
Foresight. Heedful thought for the future; reasonable 
anticipation of result of certain acts or omissions. Em
ery v. Thompson, 347 Mo. 494, 148 S.W.2d 479. See 
Foreseeability. 
Forest. A tract of land covered with trees and one 
usually of considerable extent. 
In old English law, a certain territory of wooded 
ground and fruitful pastures, privileged for wild beasts 
and fowls of forest, chase, and warren, to rest and abide 
in the safe protection of the prince for his princely 
delight and pleasure, having a peculiar court and offi
cers. A royal hunting-ground which lost its peculiar 
character with the extinction of its courts, or when the 
franchise passed into the hands of a subject. The word 
is also used to signify a franchise or right, being the 
right of keeping, for the purpose of hunting, the wild 
beasts and fowls of forest, chase, park, and warren, in a 
territory or precinct of woody ground or pasture set 
apart for the purpose. 
Forestage 1f6hr;:)st;:)j/. In old English law, a duty or 
tribute payable to the king's foresters. 
FORFANG 
Forestagium Ifohr;:)steyjiy;:)m/. In old English law, a 
duty or tribute payable to the king's foresters. 
Forestall. In old English law, to intercept or obstruct a 
passenger on the king's highway. To beset the way of a 
tenant so as to prevent his coming on the premises. 3 
Bl.Comm. 170. To intercept a deer on his way to the 
forest before he can regain it. 
Forestaller. In old English law, obstruction; hindrance; 
the offense of stopping the highway; the hindering a 
tenant from coming to his land; intercepting a deer 
before it can regain the forest. Also one who forestalls; 
one who commits the offense of forestalling. 3 B1. 
Comm. 170. 
Forestalling. Obstructing the highway. Intercepting a 
person on the highway. 
Forestalling the market. Securing control of commodi
ties on way to market. 
The act of the buying or contracting for any merchan
dise or provision on its way to the market, with the 
intention of selling it again at a higher price; or dis
suading of persons from bringing their goods or provi
sions there; or persuading them to enhance the price 
when there. This was formerly an indictable offense in 
England, but is now abolished by St. 7 & 8 Vict., c. 24. 
Forestarius Ifohr;:)steriy;:)sl. In English law, a forester. 
An officer who takes care of the woods and forests. De 
forestario apponendo, a writ which lay to appoint a 
forester to prevent further commission of waste when a 
tenant in dower had committed waste. 
Forest courts. In English law, courts instituted for the 
government of the king's forest in different parts of the 
kingdom, and for the punishment of all injuries done to 
the king's deer or venison, to the vert or greensward, and 
to the covert in which such deer were lodged. They 
consisted of the courts of attachments, of regard, of 
sweinmote, and of justice-seat. Such courts are now 
obsolete. 3 B1.Comm. 71. 
Forester. In old English law, a sworn officer of the 
forest, appointed by the king's letters patent to walk the 
forest, watching both the vert and the venison, attaching 
and presenting all trespassers against them within their 
own bailiwick or walk. These letters patent were gener
ally granted during good behavior; but sometimes they 
held the office in fee. 
Person trained in forestry; employee of U.S. Forest 
Service. 
Forest law. The system or body of old law relating to 
the royal forests. The last of the forest laws were 
repealed by the Wild Creatures and Forest Laws Act of 
1971. 
Forfang If6rfrelJ/. In old English law, the taking of 
provisions from any person in fairs or markets before 
the royal purveyors were served with necessaries for the 
sovereign. Also the seizing and rescuing of stolen or 
strayed cattle from the hands of a thief, or of those 
having illegal possession of them; also the reward fixed 
for such rescue.

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FORFEIT 
Forfeit 1f6rf;)t/. To lose, or lose the right to, by some 
error, fault, offense, or crime; or to subject, as property, 
to forfeiture or confiscation. To lose, in consequence of 
breach of contract, neglect of duty, or offense, some 
right, privilege, or property to another or to the State. 
United States v. Chavez, C.C.A.N.M., 87 F.2d 16, 19. To 
incur a penalty; to become liable to the payment of a 
sum of money, as the consequence of a certain act. It 
can be a loss of position or personal right, as well as 
property. State v. Norton, 57 Or.App. 679, 646 P.2d 53, 
55. 
To lose an estate, a franchise, or other property be
longing to one, by the act of the law, and as a conse
quence of some misfeasance, negligence, default, or 
omission. It is a deprivation (that is, against the will of 
the losing party), with the property either transferred to 
another or resumed by the original grantor. 
See also Forfeiture; Seizure. 
Forfeitable. Liable to be forfeited; subject to forfeiture 
for non-user, neglect, crime, etc. 
Forfeiture If6rf;)ty;)r/. A comprehensive term which 
means a divestiture of specific property without compen
sation; it imposes a loss by the taking away of some 
preexisting valid right without compensation. L & K 
Realty Co. v. R.W. Farmer Const. Co., Mo.App., 633 
S.W.2d 274, 279. A deprivation or destruction of a right 
in consequence of the nonperformance of some obli
gation or condition. Loss of some right or property as a 
penalty for some illegal act. Loss of property or money 
because of breach of a legal obligation (e.g. default in 
payment). 
Forfeiture of property (including money, securities, 
and real estate) is one of the penalties provided for 
under certain federal and state criminal statutes (e.g., 
RICO and Controlled Substances Acts). Such forfeiture 
provisions apply to property used in the commission of a 
crime under the particular statutes, as well as property 
acquired from the proceeds of the crime. See, e.g., 18 
U.S.C.A. §§ 981, 982 (criminal and civil forfeiture), 21 
U.S.C.A. § 853 (forfeiture in drug cases). 
In old English law, the loss of land by a tenant to his 
lord, as the consequence of some breach of fidelity. The 
loss of goods or chattels, as a punishment for some crime 
or misdemeanor in the party forfeiting, and as a com
pensation for the offense and injury committed against 
him to whom they are forfeited. 
See also Confiscate; Default; Divestiture; Foreclosure; 
Forfeit; Seizure. 
Forfeiture of bond. A failure to perform the condition 
upon which obligor was to be excused from the penalty 
in the bond. Hall v. Browning, 71 Ga.App. 835, 32 
S.E.2d 424, 427. With respect to a bail bond, occurs 
when the accused fails to appear for trial. 
Forfeiture of marriage. A penalty incurred by a ward 
in chivalry who married without the consent or against 
the will of the guardian. 
650 
Forfeitures Abolition Act. Another name for the felo
ny act of 1870, abolishing forfeitures for felony in Eng
land. 
Forgabulum, or forgavel I forgreby;)l;)m I . A quit-rent; a 
small reserved rent in money. 
Forge. To fabricate by false imitation. Carter v. State, 
135 Tex.Cr.R. 457, 116 S.W.2d 371, 377. To fabricate, 
construct, or prepare one thing in imitation of another 
thing, with the intention of substituting the false for the 
genuine, or otherwise deceiving and defrauding by the 
use of the spurious article. To counterfeit or make 
falsely. Especially, to make a spurious written instru
ment with the intention of fraudulently substituting it 
for another, or of passing it off as genuine; or to fraudu
lently alter a genuine instrument to another's prejudice; 
or to sign another person's name to a document, with a 
deceitful and fraudulent intent. See Counterfeiter; For
gery; Fraud. 
Forgery. The false making or the material altering of a 
document with the intent to defraud. A signature of a 
person that is made without the person's consent and 
without the person otherwise authorizing it. A person 
is guilty of forgery if, with purpose to defraud or injure 
anyone, or with knowledge that he is facilitating a fraud 
or injury to be perpetrated by anyone, the actor: (a) 
alters any writing of another without his authority; or 
(b) makes, completes, executes, authenticates, issues or 
transfers any writing so that it purports to be the act of 
another who did not authorize that act, or to have been 
executed at a time or place or in a numbered sequence 
other than was in fact the case, or to be a copy of an 
original when no such original existed; or (c) utters any 
writing which he knows to be forged in a manner 
specified in paragraph (a) or (b). Model Penal Code, 
§ 224.1. See also MPC § 241.7, "Tampering with or 
Fabricating Physical Evidence". 
Crime includes both act of forging handwriting of 
another and act of uttering as true and genuine any 
forged writing knowing same to be forged with intent to 
prejudice, damage or defraud any person. State v. May, 
93 Idaho 343, 461 P.2d 126, 129. Crime is committed 
when one makes or passes a false instrument with 
intent to defraud, and the element of loss or detriment is 
immaterial. People v. McAffery, 182 Cal.App.2d 486, 6 
Cal.Rptr. 333, 337. The false making of an instrument, 
which purports on face of it to be good and valid for 
purposes for which it was created, with a design to 
defraud any person or persons. State v. Goranson, 67 
Wash.2d 456, 408 P.2d 7, 9. 
See also Alteration; Counterfeit; False making; Falsify; 
Fraud; Imitation; Raised check; Utter; Uttering a forged 
instrument. 
Evidence. The fabrication or counterfeiting of evidence. 
The artful and fraudulent manipulation of physical ob
jects, or the deceitful arrangement of genuine facts or 
things, in such a manner as to create an erroneous 
impression or a false inference in the minds of those 
who may observe them.

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Forherda Iforh�rd;;l/. In old English records, a herd
land, headland, or foreland. 
For hire or reward. To transport passengers or proper
ty for a fare, charge, or rate to be paid by such passen
gers, or persons for whom such property is transported, 
to owner or operator. Michigan Consol. Gas Co. v. Sohio 
Petroleum Co., 321 Mich. 102, 32 N.W.2d 353, 356. See 
, also Carrier. 
Fori disputationes I foray dispy;;lteyshiyowniyz/. In the 
civil law, discussions or arguments before a court. 
Forinsecus If:;)rins:;)k:;)sl. Lat. Foreign; exterior; out
side; extraordinary. 
Servitium forinsecum, the payment of aid, scutage, 
and other extraordinary military services. Forinsecum 
manerium, the manor, or that part of it which lies 
outside the bars or town, and is not included within the 
liberties of it. 
Forinsic /f:;)rins;;lk/. In old English law, exterior; for
eign; extraordinary. In feudal law, the term "forinsic 
services" comprehended the payment of extraordinary 
aids or the rendition of extraordinary military services, 
and in this sense was opposed to "intrinsic services." 
Foris /for:;)sl. Lat. Abroad; out of doors; on the outside 
of a place; without; extrinsic. 
Forisbanitus Ifor;;lsbren:;)t;;lsl. In old English law, ban
ished. 
Forisfacere Ifor;;lsfeys;;lriy/. Lat. To forfeit; to lose an 
estate or other property on account of some criminal or 
illegal act. To confiscate. 
To act beyond the law, i.e., to transgress or infringe 
the law; to commit an offense or wrong; to do any act 
against or beyond the law. 
Forisfacere, i.e., extra legem seu consuetudinem fa
cere /for:;)sfeys:;)riy, id est, ekstr:;) liyj:;)m syUW konsw:;)
tyliwd;;ln;;lm feys;;lriy/. Forisfacere, i.e., to do something 
beyond law or custom. 
Forisfactum I for:;)sfrekt:;)m I . Forfeited. Bona forisfacta, 
forfeited goods. A crime. 
Forisfactura Ifor;;lsfrektyur:;)/. A crime or offense 
through which property is forfeited. A fine or punish
ment in money. 
Forfeiture; the loss of property or life in consequence 
of crime. 
Forisfactura plena Ifor;;lsfrektylir:;) pliyn:;) I . A forfeiture 
of all a man's property. Things which were forfeited. 
Forisfactus Ifor:;)sfrekt;;lsl. A criminal. One who has 
forfeited his life by commission of a capital offense. 
Forisfactus servus /for:;)sfrekt:;)s s;)rv:;)sl. A slave who 
has been a free man, but has forfeited his freedom by 
crime. 
Forisfamiliare /for:;)sf:;)miliyeriy I. In old English and 
Scotch law, literally, to put out of a family (foris fami
liam ponere). To portion off a son, so that he could have 
no further claim upon his father. To emancipate, or 
free from paternal authority. 
FORM 
Forisfamiliated Ifor;;lsf:;)miliyeyt:;)d/. In old English law, 
portioned off. A son was said to be forisfamiliated 
(forisfamiliari) if his father assigned him part of his 
land, and gave him seisin thereof, and did this at the 
request or with the free consent of the son himself, who 
expressed himself satisfied with such portion. 
Forisfamiliatus /for:;)sf:;)miliyeyt:;)sl. In old English law, 
put out of a family; portioned off; emancipated; forisfa
miliated. 
Forisjudicatio Ifor:;)sjuwd:;)keysh(iy)ow/. In old English 
law, forejudger. A forejudgment. A judgment of court 
whereby a man is put out of possession of a thing. 
Forisjudicatus /for:;)sjuwd:;)keyt;;lsl. Forejudged; sent 
from court; banished. Deprived of a thing by judgment 
of court. 
Forisjurare Ifor:;)sj:;)reriy/. To forswear; to abjure; to 
abandon. 
Provinciam forisjurare I pr:;)vinsh(iy):;)m for:;)sj:;)reriy I. To 
forswear the country. 
Forisjurare parentilam Ifor:;)sj:;)reriy p:;)rent:;)l:;)m/. To 
remove oneself from parental authority. The person 
who did this lost his rights as heir. 
Forjudge /forj;)j/. See Forejudge. 
Forjurer. L. Fr. In old English law, to forswear; to 
abjure. 
Forjurer royalme. To abjure the realm. 
Form. A model or skeleton of an instrument to be used 
in a judicial proceeding or legal transaction, containing 
the principal necessary matters, the proper technical 
terms or phrases and whatever else is necessary to make 
it formally correct, arranged in proper and methodical 
order, and capable of being adapted to the circumstances 
of the specific case or transaction. 
In contradistinction to "substance," "form" means the 
legal or technical manner or order to be observed in 
legal instruments or juridical proceedings, or in the 
construction of legal documents or processes. Antithesis 
of "substance." 
Common form, solemn form. See Probate. 
Form of the statute. This expression means the words, 
language, or frame of a statute, and hence the inhibition 
or command which it may contain; used in the phrase 
(in criminal pleading) "against the form of the statute in 
that case made and provided." 
Forms of action. This term is the general designation of 
the various species or kinds of personal actions known to 
the common law, such as trover, trespass, debt, assump
sit, etc., and also to the general classification of actions 
as those in "equity" or "law". These differ in their 
pleadings and evidence, as well as in the circumstances 
to which they are respectively applicable. Under Rules 
of Civil Procedure (applicable in federal and most state 
courts) there is now only one form of action known as a 
"civil action," Fed.R.Civ.Proc., Rule 2. See also Forms of 
action.

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FORM 
Matter of form. In pleadings, indictments, affidavits, 
conveyances, etc., matter of form (as distinguished from 
matter of substance) is all that relates to the mode, 
form, or style of expressing the facts involved, the choice 
or arrangement of words, and other such particulars, 
without affecting the substantial validity or sufficiency 
of the instrument, or without going to the merits. 
Form l�K. Financial reporting form required to be 
filed annually with SEC by publicly traded corporations. 
Form l�Q. Financial reporting form required to be 
filed quarterly with SEC by publicly traded corpora
tions. Such is less comprehensive than Form 10-K. 
Forma. Lat. Form; the prescribed form of judicial 
proceedings. 
Forma dat esse If6rm� dret esiy I. Form gives being. 
Called «<the old physical maxim." 
Forma et figura judicii If6rm� et figyUr� juwdishiyay/. 
The form and shape of judgment or judicial action. 3 
Bl.Comm. 271. 
Formal. Relating to matters of form; as, "formal de
fects"; inserted, added, or joined pro forma. See Form; 
Parties. 
Formal contract. A written contract or agreement as 
contrasted with an oral or informal contract or agree
ment. Historically, a formal contract was under seal; 
though this is generally no longer required. See also 
Contract. 
Forma legalis forma essentialis If6rm� l�geyl�s f6rm� 
�senshiyeyl�s/. Legal form is essential form. 
Formalities. In England, robes worn by the magistrates 
of a city or corporation, etc., on solemn occasions. 
Formality. The conditions, in regard to method, order, 
arrangement, use of technical expressions, performance 
of specific acts, etc., which are required by the law in the 
making of contracts or conveyances, or in the taking of 
legal proceedings, to insure their validity and regularity. 
Term generally refers to «<procedure" in contrast to 
"substance" . 
Formal parties. See Parties. 
Forma non observata, infertur adnullatio actus 
If6rm� non obz�rveyt�, inf;)rt�r redn�leysh(iy)ow rekt�s/. 
Where form is not observed, a nullity of the act is 
inferred. Where the law prescribes a form, the non-ob
servance of it is fatal to the proceeding, and the whole 
becomes a nullity. 
Forma pauperis If6rm� p6p�r�s/. See Appeal in forma 
pauperis; In forma pauperis. 
Formata Iformeyt�/. In canon law, canonical letters. 
Formata brevia Iformeyt� briyviy�/. Formed writs; 
writs of form. See Brevia formata. 
Formed action. An action for which a set form of words 
is prescribed, which must be strictly adhered to. Such 
are now generally obsolete. See Forms of action. 
652 
Formed design. In criminal law, and particularly with 
reference to homicide, this term means a deliberate and 
fixed intention to kill, whether directed against a partic
ular person or not. See also Premeditation. 
Formedon 1f6rm�don/. An ancient writ in English law 
which was available for one who had a right to lands or 
tenements by virtue of a gift in tail. It was in the 
nature of a writ of right, and was the highest action that 
a tenant in tail could have; for he could not have an 
absolute writ of right, that being confined to such as 
claimed in fee-simple, and for that reason this writ of 
formedon was granted to him by statute and was em
phatically called "his" writ of right. The writ was 
distinguished into three species, viz.: Formedon in the 
descender, in the remainder, and in the reverter. It was 
abolished in England by St. 3 & 4 Wm. IV, c. 27. 3 
Bl.Comm. 191. 
Formedon in the descender 1f6rm�don in O� d�send�r I. 
A writ of formedon which lay where a gift was made in 
tail, and the tenant in tail aliened the lands or was 
disseised of them and died, for the heir in tail to recover 
them, against the actual tenant of the freehold. 3 
Bl.Comm. 192. 
Formedon in the remainder If6rm�don in O� r�meyn
d�r/. A writ of formedon which lay where a man gave 
lands to another for life or in tail, with remainder to a 
third person in tail or in fee, and he who had the 
particular estate died without issue inheritable, and a 
stranger intruded upon him in remainder, and kept him 
out of possession. In this case he in remainder, or his 
heir, was entitled to this writ. 3 Bl.Comm. 192. 
Formedon in the reverter If6rm�don in O� r�v;)rt�r/. A 
writ of formedon which lay where there was a gift in 
tail, and afterwards, by the death of the donee or his 
heirs without issue of his body, the reversion fell in upon 
the donor, his heirs or assigns. In such case, the rever
sioner had this writ to recover the lands. 3 Bl.Comm. 
192. 
Former acquittal If6rm�r �kwit�l/. See Autrefois. 
Former adjudication. An adjudication in a former ac
tion. Either a final determination of the rights of the 
parties or an adjudication of certain questions of fact. 
Johnson v. Fontana County Fire Protection Dist., 15 
Cal.2d 380, 101 P.2d 1092, 1097; Johnson v. Fontana 
County Fire Protection Dist., Cal.App., 87 P.2d 426, 430. 
See Res (Res Judicata). 
Former jeopardy. Also called «<double jeopardy." Plea 
of "former jeopardy," that a person cannot be tried for 
an offense more than once, is fundamental common law 
and constitutional right of defendant, affording protec
tion against the defendant being again tried for the 
same offense, and not against the peril of second punish
ment. Fifth Amendment of U.S. Const. However, prose
cution by both the state and federal governments is not 
barred by the constitutional protection against double 
jeopardy. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 
3 L.Ed.2d 684. See also Double jeopardy.

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Former proceedings. Term used in reference to action 
taken earlier and its result in determining whether 
present proceeding is barred by res judicata. 
Former recovery. Recovery in a former action. See 
Res (Res judicata). 
Former statements. As used in evidence, declarations 
made by a party or witness at an earlier time. Fed. 
Evid.R. 613. 
Former testimony. In evidence, testimony given by 
party or witness at an earlier trial or hearing and 
which, under certain conditions, may be used in present 
proceeding. Fed.Evid.R. 613. 
Forms of action. Forms of action governed common law 
pleading and were the procedural devices used to give 
expression to the theories of liability recognized by the 
common law. Failure to analyze the cause of action 
properly, to select the proper theory of liability and to 
choose the appropriate procedural mechanism or forms 
of action could easily result in being thrown out of court. 
A plaintiff had to elect his remedy in advance and could 
not subsequently amend his pleadings to conform to his 
proof or to the court's choice of another theory of liabili
ty. According to the relief sought, actions have been 
divided into three categories: real actions were brought 
for the recovery of real property; mixed actions were 
brought to recover real property and damages for injury 
to it; personal actions were brought to recover debts or 
personal property, or for injuries to !"ersonal, property, 
or contractual rights. The common law actions are 
usually considered to be eleven in number: trespass, 
trespass on the case, trover, ejectment, detinue, replevin, 
debt, covenant, account, special assumpsit, and general 
assumpsit. 
Under the Rules of Civil Procedure (applicable in the 
federal and most state courts) there is now only one 
form of action known as a "civil action". Fed.R.Civil P., 
Rule 2. 
Formula. In common-law practice, a set form of words 
used in judicial proceedings. In the civil law, an action. 
Formula deal. An agreement between motion picture 
distributors and independent or affiliated circuits to 
exhibit a feature in all theatres at specified percentage 
of national gross receipts realized from such feature by 
all theatres in the United States. U. S. v. Paramount 
Pictures, D.C.N.Y., 66 F.Supp. 323, 333, 347. 
Formulre If6rmy�liy/. In Roman law, when the legis 
actiones were proved to be inconvenient, a mode of 
procedure called "per formulas" (i.e., by means of for
mulre), was gradually introduced, and eventually the 
legis actiones were abolished by the Lex .lEbutia, B.C. 
164, excepting in a very few exceptional matters. The 
formulre were four in number, namely: (1) The Demon
stratio, wherein the plaintiff stated, i.e., showed, the 
facts out of which his claim arose; (2) the In ten tio, 
where he made his claim against the defendant; (3) the 
Adjudicatio, wherein the judex was directed to assign or 
adjudicate the property or any portion or portions there
of according to the rights of the parties; and (4) the 
FORSWEAR 
Condemnatio, in which the judex was authorized and 
directed to condemn or to acquit according as the facts 
were or were not proved. These formulre were obtained 
from the magistrate (in jure), and were thereafter pro
ceeded with before the judex (in judicio). 
Formula instruction. A jury instruction intended to be 
complete statement of law upon which jury may base 
verdict. Harvey v. Aceves, 115 Cal.App. 333, 1 P.2d 
1043, 1045. An instruction which advises the jury that 
under certain facts therein hypothesized their verdict 
should be for one of the parties. McFatridge v. Harlem 
Globe Trotters, 69 N.M. 271, 365 P.2d 918, 922. See Jury 
instructions. 
Formularies 1f6rmy�leriyz/. Collections of formulre, or 
forms of forensic proceedings and instruments used 
among the Franks, and other early continental nations 
of Europe. 
Fornagium Iforneyjiy�m/. The fee taken by a lord of 
his tenant, who was bound to bake in the lord's common 
oven (in furno domini), or for a commission to use his 
own. 
Fornication. Sexual intercourse other than between 
married persons. State v. Cook, App., 139 Ariz. 406, 678 
P.2d 987, 989. Further, if one of the persons be married 
and the other not, it is fornication on the part of the 
latter, though adultery for the former. In some jurisdic
tions, however, by statute, it is adultery on the part of 
both persons if the woman is married, whether the man 
is married or not. This offense, which is variously 
defined by state statutes, is very seldom enforced. See 
also Adultery; Illicit cohabitation. 
Fornix If6rn�ks/. Lat. A brothel; fornication. 
Foro If6row/. In Spanish law, the place where tribunals 
hear and determine causes,-exercendarum litium locus. 
Foros 1f6rows/. In Spanish law, emphyteutic rents. 
Forprise If6rprayz/. An exception; reservation; except
ed; reserved. Anciently, a term of frequent use in 
leases and conveyances. In another sense, the word is 
taken for any exaction. 
For purpose of. With the intention of. 
Forschel. A strip of land lying next to the highway. 
Forspeaker lfOrspiyk�r/. An attorney or advocate in a 
cause. 
Forspeca Iforspiyk�/. In old English law, prolocutor; 
paranymphus. 
Forstal Iforst611. See Forestall. 
Forstellarius est pauperum depressor et totius com
munitatis et patrire publicus inimicus Iforst�leriy�s 
est p6p�r�m d�pres�r et towsh(iy)�s bmyuwn�teyd�s et 
pretriyiy p�blak�s in�mayk�s/. A forestaller is an op
pressor of the poor, and a public enemy of the whole 
community and country. 
Forswear Iforswer/. In criminal law, to make oath to 
that which the deponent knows to be untrue. This term 
is wider in its scope than "perjury," for the latter, as a

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FORSWEAR 
technical term, includes the idea of the oath being taken 
before a competent court or of ficer, and relating to a 
material issue, which is not implied by the word "for
swear." See Perjury. 
Fort. This term means something more than a mere 
military camp, post, or station. The term implies a 
fortification, or a place protected from attack by some 
such means as a moat, wall, or parapet. 
Fortalice, or fortelace Ifort:ll:lsl. A fortress or place of 
strength, which anciently did not pass without a special 
grant. 
Fortaxed Ifortrekst/. Wrongly or extortionately taxed. 
For that. In pleading, words used to introduce the 
allegations of a declaration. "For that" is a positive 
allegation; "For that whereas" is a recital. Such words 
are not required in federal court pleadings nor in the 
majority of states that have adopted Rules of Civil 
Procedure. 
For that whereas. In pleading, formal words introduc
ing the statement of the plaintiffs case, by way of 
recital, in his declaration, . in all actions except trespass. 
In trespass, where there was no recital, the expression 
used was, "For that." Such words are not required in 
federal court pleadings nor in the majority of states that 
have adopted Rules of Civil Procedure. 
Forthcoming bond. A bond conditioned on the forth
coming of property to answer such judgment as may be 
entered. If the property be forthcoming, no liability 
ensues. U. S. Fidelity & Guaranty Co. v. Sabath, 286 
Ill.App. 320, 3 N.E.2d 330, 335. A bond given to a 
sheriff who has levied on property, conditioned that the 
property shall be forthcoming, i.e., produced, when re
quired. On the giving of such bond, the goods are 
allowed to remain in the possession of the debtor. 
Forthwith. Immediately; without delay; directly; with
in a reasonable time under the circumstances of the 
case; promptly and with reasonable dispatch. U. S. ex 
reI. Carter v. Jennings, D.C.Pa., 333 F.Supp. 1392, 1397. 
Within such time as to permit that which is to be done, 
to be done lawfully and according to the practical and 
ordinary course of things to be performed or accom
plished. The first opportunity offered. 
Fortia Iforsh(iY):l/. Force. In old English law, force 
used by an accessory, to enable the principal to commit 
a crime, as by binding or holding a person while another 
killed him, or by aiding or counseling in any way, or 
commanding the act to be done. 
Fortia frisca Iforsh(iY):l frisb /. Fresh force (q.v.). 
Fortility Ifortibtiy/. In old English law, a fortified 
place; a castle; a bulwark. 
Fortior IforshiY:lr/. Lat. Stronger. A term applied, in 
the law of evidence, to that species of presumption, 
arising from facts shown in evidence, which is strong 
enough to shift the burden of proof to the opposite party. 
654 
Fortior est custodia legis quam hominis IforshiY:lr est 
k:lstowdiY:l liyj:ls kwrem hom:ln:lsl. The custody of the 
law is stronger than that of man. 
Fortior et potentior est dispositio legis quam hominis 
IforshiY:lr et p:ltenshiY:lr est disp:lzish(iy)ow liyj:ls kwrem 
hom:ln:lsl. The disposition of the law is of greater force 
and effect than that of man. The law in some cases 
overrides the will of the individual, and renders ineffec
tive or futile his expressed intention or contract. 
Fortiori lfOrshiy6ray/. See A fortiori. 
Fortis Ifort:lsl. Lat. Strong. Fortis et sana, strong and 
sound; staunch and strong; as a vessel. 
Fortlett If6rtl:lt/. A place or port of some strength; a 
little fort. 
Fortuit Ifortwiy/. In French law, accidental; fortuitous. 
Cas fortuit, a fortuitous event. Fortuitement, accidental
ly; by chance; casually. 
Fortuitous /fortyuw:lt:lsl. Happening by chance or acci
dent. Occurring unexpectedly, or without known cause. 
Accidental; undesigned; adventitious. Resulting from 
unavoidable physical causes. 
Fortuitous collision Ifortyuw:ld:ls k:llizh:ln/. In mari
time law, the accidental running foul of vessels. 
Fortuitous event Ifortyuw:ld:ls :lvent/. An event hap
pening by chance or accident. That which happens by a 
cause which cannot be resisted. An unforeseen occur
rence, not caused by either of the parties, nor such as 
they could prevent. For purposes of an all risk insur
ance policy, an event which occurs accidentally, as a 
lay-person, and not a technician or scientist, would un
derstand that term. It is an event which happens by 
chance, unexpectedly, or without known cause; one 
which is undesigned or unplanned. Standard Structural 
Steel Co. v. Bethlehem Steel Corp., D.C.Conn., 597 
F.Supp. 164, 193. 
Fortuna Ifortyuwn:l/. Lat. Fortune; also treasure
trove. 
Fortunam faciunt judicem Ifortyuwn:lm feys(h)iY:lnt 
juwd:ls:lm/. They make fortune the judge. Spoken of 
the process of making partition among coparceners by 
drawing lots for the several purparts. 
Fortune teller. One who professes to tell future events 
in the life of another. 
In English law, persons pretending or professing to 
tell fortunes, and punishable as rogues and vagabonds or 
disorderly persons. 4 Bl.Comm. 62. 
Fortunium IfortyuwniY:lm/. In old English law, a tour
nament or fighting with spears, and an appeal to for
tune therein. 
Forty. In land laws and conveyancing, in those regions 
where grants, transfers, and deeds are made with refer
ence to the subdivisions of the government survey, this 
term means forty acres of land in the form of a square, 
being the tract obtained by quartering a section of land 
(640 acres) and again quartering one of the quarters.

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Forty-days court. In old English forest law, the court of 
attachment in forests, or woodmote court. 
Forum Ifor;}m/. Lat. A court of justice, or judicial 
tribunal; a place of jurisdiction; a place of litigation; 
an administrative body. Particular place where judicial 
or administrative remedy is pursued. See also Venue. 
In Roman law, the market place, or public paved 
court, in the city of Rome, where such public business 
was transacted as the assemblies of the people and the 
judicial trial of causes and where also elections, mar
kets, and the public exchange were held. 
Forum actus Ifor;}m rekt;}s/. The forum of the act. The 
forum of the place where the act was done which is now 
called in question. 
Forum conscientire Ifor;}m kons(h)iyenshiyiy I. The fo
rum or tribunal of conscience. 
Forum contentiosum Ifor;}m k;}ntenshiyowz;}m/. A 
contentious forum or court; a place of litigation; the 
ordinary court of justice, as distinguished from the tri
bunal of conscience. 3 Bl.Comm. 211. 
Forum contractus Ifor;}m k;}ntrrekt;}s/. The forum of 
the contract; the court of the place where a contract is 
made; the place where a contract is made, considered as 
a place of jurisdiction. 
Forum conveniens Ifor;}m k;}nviyn(i)yenzl. The state 
or judicial district in which an action may be most 
appropriately brought, considering the best interest of 
the parties and the public. Compare Forum non conve
niens. 
Forum domesticum Ifor;}m d;}mest;}k;}m/. A domestic 
forum or tribunal. The visitatorial power is called a 
"forum domesticum, " calculated to determine, sine strep
itu, all disputes that arise within themselves. 
Forum domicilii Ifor;}m do(w)m;}siliyay/. The forum or 
court of the domicile; the domicile of a defendant, 
considered as a place of jurisdiction. 
Forum ecclesiasticum Ifor;}m ;}kliyziyrest;}k;}m/. An ec
clesiastical court. The spiritual jurisdiction, as distin
guished from the secular. 
Forum ligeantire rei Ifor;}m lijiyrenshiyiy riyay I. The 
forum of defendant's allegiance. The court or jurisdic
tion of the country to which he owes allegiance. 
Forum non conveniens Ifor;}m non k;}nviyn(i)yenzl. 
Term refers to discretionary power of court to decline 
jurisdiction when convenience of parties and ends of 
justice would be better served if action were brought and 
tried in another forum. Johnson v. Spider Staging 
Corp., 87 Wash.2d 577, 555 P.2d 997, 999, 1000. See 28 
U.S.C.A. § 1404. 
The rule is an equitable one embracing the discretion
ary power of a court to decline to exercise jurisdiction 
which it has over a transitory cause of action when it 
believes that the action may be more appropriately and 
justly tried elsewhere. Leet v. Union Pac. R. Co., 25 
Cal.2d 605, 155 P.2d 42, 44. The doctrine presupposes at 
least two forums in which the defendant is amenable to 
FORWARD CONTRACT 
process and furnishes criteria for choice between such 
forums. Wilson v. Seas Shipping Co., D.C.Pa., 78 
F.Supp. 464, 465. In determining whether doctrine 
should be applied, court should consider relative ease of 
access to sources of proof, availability of compulsory 
process for attendance of unwilling witnesses, cost of 
obtaining attendance of willing witnesses, possibility of 
view of premises, and all other practical problems that 
make trial easy, expeditious and inexpensive. Di LelIa 
v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.D. 192, 193. See 
also Change of venue; Forum conveniens. 
Forum originis Ifor;}m ;}rij;}n;}s/. The court of one's 
nativity. The place of a person's birth, considered as a 
place of jurisdiction. 
Forum regium Ifor;}m riyj(iy);}m/. The king's court. 
Forum rei Ifor;}m riyay/. This term may mean either 
(1) the forum of the defendant, that is, of his residence 
or domicile; or (2) the forum of the res or thing in 
controversy, that is, of the place where the property is 
situated. The ambiguity springs from the fact that rei 
may be the genitive of either reus or res. 
Forum rei gestre Ifor;}m riyay jestiy I. The forum or 
court of a res gesta (thing done); the place where an act 
is done, considered as a place of jurisdiction and remedy. 
Forum rei sitre Ifor;}m riyay saytiy/. The court where 
the thing in controversy is situated. The place where 
the subject-matter in controversy is situated, considered 
as a place of jurisdiction. 
Forum seculare Ifor;}m seky;}leriy/. A secular, as dis
tinguished from an ecclesiastical or spiritual, court. 
Forum selection clause. A clause in a contract prese
lecting a particular forum, such as a given state, coun
try, court or administrative proceeding, for the resolu
tion of a dispute. Usually upheld unless the clause is 
designed to discourage litigation. 
Forum shopping. Such occurs when a party attempts 
to have his action tried in a particular court or jurisdic
tion where he feels he will receive the most favorable 
judgment or verdict. 
For use. For the benefit or advantage of another. Thus, 
where an assignee is obliged to su� in the name of his 
assignor, the suit is entitled "A. for use of B. v. C." For 
enjoyment or employment without destruction. A loan 
"for use" is one in which the bailee has the right to use 
and enjoy the article, but without consuming or destroy
ing it, in which respect it differs from a loan "for 
consumption." 
For value. See Holder. 
For value received. See Value (Va lue received). 
Forward. To send forward; to send toward the place of 
destination; to transmit. To ship goods by common 
carrier. See Forwarder. 
Forward contract. An agreement to sell a commodity 
at a fixed future date but at a price set at the time the 
contract is written. In re Gold Coast Seed Co., C.A.Cal., 
751 F.2d 1118, 111 9.

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FORWARDER 
Forwarder. Person or business whose business it is to 
receive goods for further handling by way of warehous
ing, packing, carload shipping, delivery, etc. See For
warding agent; Freight forwarder. 
Forwarding agent. Freight forwarder who assembles 
less than carload shipments (small shipments) into car
load shipments, thus taking advantage of lower freight 
rates. Company or individual whose business it is to 
receive and ship merchandise for others. See Forwarder. 
Forward rate. The rate of exchange between two cur
rencies being bought and sold for delivery at a future 
date. 
For whom it may concern. Salutation used when 
particular name of addressee or recipient is unknown. 
Phrase creates presumption of intention on part of 
named insured to cover any persons who may have an 
insurable interest in the property. 
Fossa /f6s�/. In the civil law, a ditch; a receptacle of 
water, made by hand. 
In old English law, a ditch. A pit full of water, in 
which women committing felony were drowned. A 
grave or sepulcher. 
Fossagium /foseyj(iy)�m/. In old English law, the duty 
levied on the inhabitants for repairing the moat or ditch 
round a fortified town. 
Fossatorum operatio /fos�t6r�m op�reysh(iy)ow/. In 
old English law, fosse-work; or the service of laboring, 
done by inhabitants and adjoining tenants, for the re
pair and maintenance of the ditches round a city or 
town, for which some paid a contribution, called "fossa
gium. " 
Fossatum /f�seyt�m/. A dyke, ditch, or trench; a place 
inclosed by a ditch; a moat; a canal. 
Fosterage /f6st�r�j/. Care of a foster child, brother, 
sister, parent, etc.-�>ne considered as holding the rela
tionship indicated in consequence of nursing and rear
ing, though not related by blood. In re Norman's Es
tate, 209 Minn. 19, 295 N.W. 63, 66. 
Foster child. Child whose care, comfort, education and 
upbringing has been left to persons other than his 
natural parents. See Foster parent. 
Foster home. A home for children without parents or 
who have been taken from their parents. 
Fostering. An ancient custom in Ireland, in which 
persons put away their children to fosterers. Fostering 
was held to be a stronger alliance than blood, and the 
foster children participated in the fortunes of their 
foster fathers. 
Fosterland. Land given, assigned, or allotted to the 
finding of food or victuals for any person or persons; as 
in monasteries for the monks, etc. 
Fosterlean /f6st�rliyn/. The remuneration fixed for the 
rearing of a foster child; . also the jointure of a wife. 
656 
Foster parent. One who has performed the duties of a 
parent to the child of another by rearing the child as his 
or her own child. See Foster child. 
Foul bill of lading. Type of bill of lading which shows 
on its face that the goods were damaged or that there 
was a shortage at the time of shipment. 
Found. A person is said to be "found" within a state for 
purposes of service of process when actually present 
therein. But only if a person is in a place voluntarily 
and not by reason of plaintiffs fraud, artifice, or trick 
for purpose of obtaining service. Shields v. Shields, 115 
Mont. 146, 139 P.2d 528, 530, 53 1. It does not necessar
ily mean physical presence; e.g. defendant who, after 
removal of action for breach of contract to federal court, 
entered general appearance, defended on the merits, and 
filed counterclaim, was "found" in the district. Free
man v. Bee Mach. Co., Mass., 319 U.S. 448, 63 S.Ct. 1146, 
1149, 87 L.Ed. 1509. As applied to a corporation it is 
necessary that it be doing business in such state through 
an officer or agent or by statutory authority in such 
manner as to render it liable then to suit and to con
structive or substituted service of process. A corpora
tion is "found" in a district for venue purposes if it is 
subject to personal jurisdiction in that district. Stith v. 
Manor Baking Co., D.C.Mo., 418 F.Supp. 150, 155. See 
also Locate; Service (Service of process). 
Foundation. Permanent fund established and main
tained by contributions for charitable, educational, reli
gious, research, or other benevolent purpose. An insti
tution or association given to rendering financial aid to 
colleges, schools, hospitals, and charities and generally 
supported by gifts for such purposes. 
The founding or building of a college or hospital. The 
incorporation or endowment of a college or hospital is 
the foundation; and he who endows it with land or 
other property is the founder. Dartmouth College v. 
Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629; Seag
rave's Appeal, 125 Pa. 362, 17 A. 412; Union Baptist 
Ass'n v. Huhn, 7 Tex.Civ.App. 249, 26 S.W. 755. 
Preliminary questions to witness to establish admissi
bility of evidence. "Laying foundation" is a prerequisite 
to the admission of evidence at trial. It is established by 
testimony which identifies the evidence sought to be 
admitted and connects it with the issue in question. 
Taylor v. State, Wyo., 642 P.2d 1294, 1295. See, e.g., 
Fed.Evid.R. 104. 
See also Charitable foundation; Endowment. 
Founded. Based upon; arising from, growing out of, or 
resting upon; as in the expressions "founded in fraud," 
"founded on a consideration," "founded on contract," 
and the like. 
Founded on. To serve as a base or basis for. 
Founder. The person who endows an eleemosynary 
corporation or institution, or supplies the funds for its 
establishment. See Foundation. 
Founders' shares. In English Company Law, shares 
issued to the founders of (or vendors to) a public compa
ny as a part of the consideration for the business, or

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concession, etc., taken over, and not forming a part of, 
the ordinary capital. As a rule, such shares only partic
ipate in profits after the payment of a fixed minimum 
dividend on paid-up capital. 
Foundling. A deserted or abandoned infant; a child 
found without a parent or guardian, its relatives being 
unknown. 
Foundling hospitals. Charitable institutions which ex
ist in many European countries for taking care of in
fants forsaken by their parents, such being generally the 
offspring of illegal connections. 
Four Ifur/. Fr. In old French law, an oven or bake
house. Four banal, an oven, owned by the seignior of 
the estate, to which the tenants were obliged to bring 
their bread for baking. Also the proprietary right to 
maintain such an oven. 
Fourcher lfUrshey/. Fr. To fork. This was a method 
of delaying an action anciently resorted to by defendants 
when two of them were joined in the suit. Instead of 
appearing together, each would appear in turn and cast 
an essoin for the other, thus postponing the trial. 
Four corners. The face of a written instrument. 
Four corners rule. Under "four corners rule", inten
tion of parties, especially that of grantor, is to be gath
ered from instrument as a whole and not from isolated 
parts thereof. Davis v. Andrews, Tex.Civ.App., 361 
S.W.2d 419, 423. 
Fourierism lfUriy:;,riz:;,m/f6ro I. A form of socialism. 
401(k) plan. A savings plan established by corporations 
for the benefit of employees. Such a plan allows em
ployees to defer pre-tax income on a certain portion of 
their gross salary and invest the funds in stocks, bonds, 
or other investment tools. In addition, many companies 
match a percentage of the employees' contributions. 
The contributions and earnings from such are accumu
lated tax free until such time as the funds are with
drawn. There is a penalty for early withdrawal, with 
some exceptions such as death or disability of the em
ployee. I.R.C. § 401(k). 
Four seas. The seas surrounding England. These were 
divided into the Western, including the Scotch and Irish; 
the Northern, or North sea; the Eastern, being the 
German ocean; the Southern, being the British channel. 
Fourteenth Amendment. The Fourteenth Amendment 
of the Constitution of the United States, ratified in 1868, 
creates or at least recognizes for the first time a citizen
ship of the United States, as distinct from that of the 
states; forbids the making or enforcement by any state 
of any law abridging the privileges and immunities of 
citizens of the United States; and secures all "persons" 
against any state action which results in either depriva
tion of life, liberty, or property without due process of 
law, or, in denial of the equal protection of the laws. 
This Amendment also contains provisions concerning 
the apportionment of representatives in Congress. See 
also Due process of law; Equal protection clause. 
Black's Law Dictionary 6th Ed.-15 
FRACTIONAL SHARE FORMULA 
Fourth Amendment. Amendment of the U.S. Constitu
tion guaranteeing people the right to be secure in their 
homes and property against unreasonable searches and 
seizures and providing that no warrants shall issue 
except upon probable cause and then only as to specific 
places to be searched and persons and things to be 
seized. See Probable cause; Search (and other cross-ref
erences thereunder). 
Fourth estate. The journalistic profession (i.e. the 
press). Term has its source from a reference to the 
reporters' gallery of the British Parliament whose influ
ence on public policy was said to equal that of Par
liament's three traditional estates, the clergy, nobility, 
and commons. 
Fox's Libel Act. In English law, this was the statute 52 
Geo. III, c. 60, which secured to juries, upon the trial of 
indictments for libel, the right of pronQuncing a general 
verdict of guilty or not guilty upon the whole matter in 
issue, and no longer bound them to find a verdict of 
guilty on proof of the publication of the paper charged to 
be a libel, and of the sense ascribed to it in the indict
ment. 
Foy If6y/f(w)ey/fwal. L. Fr. Faith; allegiance; fidelity. 
F.P.A. In maritime insurance: "Free from particular 
average". See Average. 
F.P.R. Federal Procurement Regulations. See now Fed
eral Acquisition Regulations. 
Fr. A Latin abbreviation for "fragmentum," a fragment, 
used in citations to the Digest or Pandects in the Corpus 
Juris Civilis of Justinian, the several extracts from 
juristic writings of which it is composed being so called. 
Fractio Ifrreksh(iy)ow/. Lat. A breaking; division; 
fraction; a portion of a thing less than the whole. 
Fraction. A breaking, or breaking up; a fragment or 
broken part; a portion of a thing, less than the whole. 
Fractional. As applied to tracts of land, particularly 
townships, sections, quarter sections, and other divisions 
according to the government survey, and also mining 
claims, this term means that the exterior boundary lines 
are laid down to include the whole of such a division or 
such a claim, but that the tract in question does not 
measure up to the full extent or include the whole 
acreage, because a portion of it is cut off by an over
lapping survey, a river or lake, or some other external 
interference. Any irregular division whether contain
ing more or less than conventional amount of acreage. 
Fractional share. Unit of stock less than a full share. 
This term comes into use with a stock dividend in an 
instance for example where an owner of 75 shares 
receives a 10% stock dividend. That part or portion of a 
share of stock indicated on a right or warrant as subject 
to purchase by the exercise of such right. 
Fractional share formula. See Marital deduction. 
Fractionem diei non recipit lex Ifrrekshiy6wn:;,m 
dayiyay non res�p:;,t leks I . The law does not take notice 
of a portion of a day.

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FRACTION OF A DAY 
Fraction of a day. A portion of a day. The dividing a 
day. Generally, the law does not allow the fraction of a 
day. 
Fractitium Ifrrektish(iy);:)m/. Arable land. Mon. Angl. 
Fractura navium Ifrrektyu.r::l neyv(i)Y::lm/. Lat. The 
breaking or wreck of ships; the same as naufragium 
(q.v.). 
Fragmen�a I frregment::l I . Lat. Fragments. A name 
sometimes applied (especially in citations) to the Digest 
or Pandects in the Corpus Ju ris Civilis of Justinian, as 
being made up of numerous extracts or "fragments" 
from the writings of various jurists. 
Fragmented literal similarity. In copyright law, an 
infringement plaintiff can prove copying by the defen
dant by showing that scattered throughout the defen
dant's work are words (or musical phrases, or artistic 
symbols or images) that constitute part of the protected 
work. 
Frais Ifrey/. Fr. Expense; charges; costs. Frais d'un 
proces, costs of a suit. 
Frais de justice Ifrey d::l zhustiys/. In French and 
Canadian law, costs incurred incidentally to the action. 
Frais jusqu'a bord Ifrey j::lska bor(d)/. Fr. In French 
commercial law, expenses to the board; expenses in
curred on a shipment of goods, in packing, cartage, 
commissions, etc., up to the point where they are actual
ly put on board the vessel. 
Framed. Incrimination of person on false or fabricated 
evidence. Compare Entrapment. 
When used to describe evidence, word is generally 
accepted as implying that willful perjurers, suborned by 
and conspiring with parties in interest to litigation, are 
swearing or have sworn to matters without any basis in 
fact. Tri-State Transit Co. of Louisiana v. Westbrook, 
207 Ark. 270, 180 S.W.2d 121, 125. 
Frame-up. Conspiracy or plot, especially for evil pur
pose, as to incriminate person on false evidence. See 
Entrapment. 
Franc aleu IfroIJk alyu.w/. In French feudal law, an 
allod; a free inheritance; or an estate held free of any 
services except such as were due to the sovereign. 
Franchilanus IfrreIJk::lleyn::ls/. A freeman. A free ten
ant. 
Franchise. A special privilege to do certain things con
ferred by government on individual or corporation, and 
which does not belong to citizens generally of common 
right; e.g., right granted to offer cable television service. 
Artesian Water Co. v. State, Dept. of Highways and 
Transp., Del.Super., 330 A.2d 432, 439. In England it is 
defined to be a royal privilege in the hands of a subject. 
A privilege grarited or sold, such as to use a name or 
to sell products or services. The right given by a manu
facturer or supplier to a retailer to use his products and 
name on terms and conditions mutually agreed upon. 
In its simplest terms, a franchise is a license from 
owner of a trademark or trade name permitting another 
658 
to sell a product or service under that name or mark. 
More broadly stated, a "franchise" has evolved into an 
elaborate agreement under which the franchisee under
takes to conduct a business or sell a product or service 
in accordance with methods and procedures prescribed 
by the franchisor, and the franchisor undertakes to 
assist the franchisee through advertising, promotion and 
other advisory services. H & R Block, Inc. v. Lovelace, 
208 Kan. 538, 493 P.2d 205, 211. Term also refers to 
such business as owned by franchisee. State and Feder
al laws regulate business franchising. See also Fran
chised dealer. 
Corporate franchise. See that title. See also Charter. 
Elective franchise. The right of suffrage; the right or 
privilege of voting in public elections. Such right is 
guaranteed by Fifteenth, Nineteenth, and Twenty-fourth 
Amendments to U.S. Constitution. 
Exclusive franchise. See Exclusive agency. 
General and special. The charter of a corporation is its 
"general" franchise, while a "special" franchise consists 
in any rights granted by the public to use property for a 
public use but with private profit. 
Sports franchise. As granted by a professional sports 
association, it is a privilege to field a team in a given 
geographic area under the auspices of the league that 
issues it. It is merely an Incorporeal right. 
Tax treatment. A franchise is an agreement which 
gives the transferee the right to distribute, sell, or 
provide goods, services, or facilities, within a specified 
area. The cost of obtaining a franchise may be amor
tized over the life of the agreement. In general, a 
franchise is a capital asset and results in capital gain or 
loss if all significant powers, rights or continuing inter
ests are transferred pursuant to the sale of a franchise. 
Franchise agreement. Generally, an agreement be
tween a supplier of a product or service or an owner of a 
desired trademark or copyright (franchisor), and a re
seller (franchisee) under which the franchisee agrees to 
sell the franchisor's product or service or to do business 
under the franchisor's name. State and federal laws 
regulate the content of franchise agreements. 
Franchise appurtenant to land. Usually a franchise is 
not regarded as real property or land and is not included 
in the term "tenement;" but it is sometimes character
ized or classified as real property or as property of the 
nature of real property when exercised in connection 
with real property, and is, in terms, classified as real 
property, real estate, or land by some statutes. 
Franchise clause. Provision in casualty insurance poli
cy to the effect that the insurer will pay those claims 
only over a stated amount and that the insured is 
responsible for all damage under the agreed amount. 
This clause differs from a deductible provision in that 
the insured bears the loss in every claim up to the 
deductible amount whereas, under the franchise clause, 
once the claim exceeds the agreed amount, the insurer 
pays the entire claim.

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609 
Franchised dealer. A retailer who sells the product or 
service of a manufacturer or supplier under a franchise 
agreement which generally protects the territory for the 
retailer and provides advertising and promotion support 
to him. See Franchise. 
Franchisee. Person or company that is granted fran
chise by a franchisor. 
Franchise tax. A tax upon the privilege of existing or 
the privilege of doing certain things. An annual tax on 
the privilege of doing business in a state; it is not a 
direct tax on income. Hoosier Engineering Co. v. Shea, 
124 Vt. 341, 205 A.2d 821, 822. A tax on the franchise 
of a corporation, that is, on the right and privilege of 
carrying on business in the character of a corporation, 
for the purposes for which it was created, and in the 
conditions which surround it. City of Poplar Bluff v. 
Poplar Bluff Loan and Bldg. Ass'n, Mo.App., 369 S.W.2d 
764, 766. 
Though the value of the franchise, for purposes of 
taxation, may be measured by the amount of business 
done, or the amount of earnings or dividends, or by the 
total value of the capital or stock of the corporation in 
excess of its tangible assets, a franchise tax is not a tax 
on either property, capital, stock, earnings, or dividends. 
Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S.Ct. 
673, 678, 61 L.Ed. 1280. 
Franchisor. Person or company that grants a franchise 
to a franchisee. 
Francia I frrens(h)(i)y;} I . France. 
Francigena Ifrrens;}jiyn;}/. A man born in France. A 
designation formerly given to aliens in England. See 
Frenchman. 
Franc tenancier IfroI]k tenonsyey/. In French law, a 
freeholder. 
Francus IfrreI]k;}s/. L. Lat. Free; a freeman; a Frank. 
Francus bancus IfrreI]k;}s breI]k;}s/. Free-bench (q.v.). 
Francus homo IfrreI]k;}s howmow I. In old European 
law, a free man. 
Francus plegius IfrreI]k;}s plejiy;}s/. In old English law, 
a frank pledge, or free pledge. See Frank-pledge. 
Francus tenens IfrreI]k;}s ten;}nz/. A freeholder. See 
Frank-tenement. 
Frank, v. To send matter through the public mails free 
of postage, by a personal or official privilege. See Frank
ing privilege. 
Frank, adj. In old English law, free. Occurring in 
several compounds. 
Frankalmoign IfrreI]krelmoyn/. In English law, free 
alms. A spiritual tenure whereby religious corpora
tions, aggregate or sole, held lands of the donor to them 
and their successors forever. They were discharged of 
all other except religious services, and the trinoda neces
sitas. It differs from tenure by divine service, in that 
the latter required the performance of certain divine 
services, whereas the former, as its name imports, is 
FRANK-TENANT 
free. Such type tenures were abolished by the Adminis
tration of Estates Act of 1925. 
Frank bank. In old English law, free bench. See Free
bench. 
Frank-chase. A liberty of free chase enjoyed by any 
one, whereby all other persons having ground within 
that compass are forbidden to cut down wood, etc., even 
in their own demesnes, to the prejudice of the owner of 
the liberty. See Chase. 
Frank-fee. Freehold lands exempted from all services, 
but not from homage; lands held otherwise than in 
ancient demesne. That which a man holds to himself 
and his heirs, and not by such service as is required in 
ancient demesne, according to the custom of the manor. 
Frank ferm. In English law, a species of estate held in 
socage, said by Britton to be "lands and tenements 
whereof the nature of the fee is changed by feoffment 
out of chivalry for certain yearly services, and in respect 
whereof neither homage, ward, marriage, nor relief can 
be demanded." 2 Bl.Comm. 80. 
Frank-fold. In old English law, free-fold; a privilege for 
the lord to have all the sheep of his tenants and the 
inhabitants within his seigniory, in his fold, in his 
demesnes, to manure his land. 
Franking privilege. The privilege of sending certain 
matter through the public mails without payment of 
postage, in pursuance of a personal or official privilege. 
The privilege granted to members of Congress to send 
out a certain amount of mail under signature without 
charge. See 39 U.S.C.A. § 3210 et seq. 
Frank-law. An obsolete expression signifying the rights 
and privileges of a citizen, or the liberties and civic 
rights of a freeman. 
Frankleyn IfrreI]kl;}n/. (Spelled, also, "Francling" and 
"Franklin".) A freeman; a freeholder; a gentleman. 
Frank-marriage. In old English law, a species of en
tailed estates. When tenements are given by one to 
another, together with a wife, who is a daughter or 
cousin of the donor, to hold in frank-marriage, the 
donees shall have the tenements to them and the heirs 
of their two bodies begotten, i.e., in special tail. The 
word "frank-marriage," ex vi termini, both creates and 
limits an inheritance, not only supplying words of de
scent, but also terms of procreation. The donees are 
liable to no service except fealty, and a reserved rent 
would be void, until the fourth degree of consanguinity 
be passed between the issues of the donor and donee, 
when they were capable by the law of the church of 
intermarrying. 2 Bl.Comm. 115. 
Frank-pledge. In old English law, a pledge or surety for 
freemen; that is, the pledge, or corporate responsibility, 
of all the inhabitants of a tithing for the general good 
behavior of each free-born citizen above the age of 
fourteen, and for his being forthcoming to answer any 
infraction of the law. A pledge of surety to the sover
eign for the collective good conduct of a group. 
Frank-tenant. A freeholder.

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FRANK-TENEMENT 
Frank-tenement. In English law, a free tenement, free
holding, or freehold. 2 Bl.Comm. 61, 62, 104. Used to 
denote both the tenure and the estate. 
F.R.A.P. Federal Rules of Appellate Procedure. 
Frater Ifreytar/. In the civil law, a brother. Frater 
consanguineus, a brother having the same father, but 
born of a different mother. Frater uterinus, a brother 
born of the same mother, but by a different father. 
Frater nutricius, a bastard brother. 
Frater fratri uterino non succedet in hrereditate pa
terna Ifreytar frretray yllwtaniynow non saksiydat in 
hariydateytiy pat;)rna/. A brother shall not succeed a 
uterine brother in the paternal inheritance. 2 Bl. 
Comm. 223. A maxim of the common law of England, 
now superseded. 
Frateria Ifratir(i)ya/. In old records, a fraternity, broth
erhood, or society of religious persons, who were mutual
ly bound to pray for the good health and life, etc., of 
their living brethren, and the souls of those that were 
dead. 
Fraternal. Brotherly; relating or belonging to a frater
nity or an association of persons formed for mutual aid 
and benefit, but not for profit. In re Mason Tire & 
Rubber Co., 56 App.D.C. 170, 11 F.2d 556, 557. 
Fraternal benefit association or society. One whose 
members have adopted the same, or a very similar, 
calling, avocation, or profession, or who are working in 
unison to accomplish some worthy object, and who for 
that reason have joined themselves together as an asso
ciation or society to aid and assist one another, and to 
promote the common cause. Alpha Rho Alumni Ass'n 
v. City of New Brunswick, 126 N.J.L. 233, 18 A.2d 68, 70. 
A society or voluntary association organized and carried 
on for the mutual aid and benefit of its members, not for 
profit; which ordinarily has a lodge system, a ritualistic 
form of work, and a representative government, makes 
provision for the payment of death benefits, and (some
times) for benefits in case of accident, sickness, or old 
age, the funds therefor being derived from dues paid or 
assessments levied on the members. 
Fraternal insurance. The form of life (or accident) 
insurance furnished by a fraternal beneficial associa
tion, consisting in the payment to a member, or his heirs 
in case of death, of a stipulated sum of money, out of 
funds raised for that purpose by the payment of dues or 
assessments by all the members of the association. 
Fraternal lodge. See Fraternal benefit association or 
society. 
Fraternia Ifrat;)rn(i)ya/. A fraternity or brotherhood. 
Fraternity. A body of persons associated for their com
mon interest, business or pleasure. In American col
leges, a student organization, either a nationally char
tered society comprising many affiliated chapters or a 
single chapter in one institution, formed chiefly to pro
mote friendship and welfare among the members, and 
usually having secret rites and a name consisting of 
660 
Greek letters. Woman's Club of Little Falls v. Township 
of Little Falls, 20 N.J.Misc. 278, 26 A.2d 739, 741. 
Fratres conjurati Ifrretriyz konjareytay/. Sworn broth
ers or companions for the defense of their sovereign, or 
for other purposes. 
Fratres pyes Ifrretriyz payz/. In old English law, cer
tain friars who wore white and black garments. 
Fratriage Ifrretriyaj/. A younger brother's inheritance. 
Fratricide Ifrretrasayd/. One who has killed a brother 
or sister; also the killing of a brother or sister. 
Fraud. An intentional perversion of truth for the pur
pose of inducing another in reliance upon it to part with 
some valuable thing belonging to him or to surrender a 
legal right. A false representation of a matter of fact, 
whether by words or by conduct, by false or misleading 
allegations, or by concealment of that which should have 
been disclosed, which deceives and is intended to deceive 
another so that he shall act upon it to his legal injury. 
Anything calculated to deceive, whether by a single act 
or combination, or by suppression of truth, or suggestion 
of what is false, whether it be by direct falsehood or 
innuendo, by speech or silence, word of mouth, or look 
or gesture. Delahanty v. Fist Pennsylvania Bank, N.A., 
318 Pa.Super. 90, 464 A.2d 1243, 1251. A generic term, 
embracing all multifarious means which human inge
nuity can devise, and which are resorted to by one 
individual to get advantage over another by false sugges
tions or by suppression of truth, and includes all sur
prise, trick, cunning, dissembling, and any unfair way 
by which another is cheated. Johnson v. McDonald, 170 
Okl. 11 7, 39 P.2d 150. "Bad faith" and "fraud" are 
synonymous, and also synonyms of dishonesty, infideli
ty, faithlessness, perfidy, unfairness, etc. 
Elements of a cause of action for "fraud" include false 
representation of a present or past fact made by defen
dant, action in reliance thereupon by plaintiff, and dam
age resulting to plaintiff from such misrepresentation. 
Citizens Standard Life Ins. Co. v. Gilley, Tex.Civ.App., 
521 S.W.2d 354, 356. 
As distinguished from negligence, it is always positive, 
intentional. It comprises all acts, omissions, and con
cealments involving a breach of a legal or equitable duty 
and resulting in damage to another. And includes any
thing calculated to deceive, whether it be a single act or 
combination of circumstances, whether the suppression 
of truth or the suggestion of what is false, whether it be 
by direct falsehood or by innuendo, by speech or by 
silence, by word of mouth, or by look or gesture. Fraud, 
as applied to contracts, is the cause of an error bearing 
on a material part of the contract, created or continued 
by artifice, with design to obtain some unjust advantage 
to the one party, or to cause an inconvenience or loss to 
the other. 
See also Actionable fraud; Badges of fraud; Cheat; Civil 
fraud; Collusion; Constructive fraud; Criminal (Criminal 
fraud), Deceit; False pretenses; False representation; 
Intrinsic fraud; Mail fraud; Material fact; Misrepresenta
tion; Promissory fraud; Reliance; Scheme or artifice to 
defraud.

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661 
Actionable fraud. See Actionable fraud. 
Actual or constructive fraud. Fraud is either actual or 
constructive. Actual fraud consists in deceit, artifice, 
trick, design, some direct and active operation of the 
mind; it includes cases of the intentional and successful 
employment of any cunning, deception, or artifice used 
to circumvent or cheat another. It is something said, 
done, or omitted by a person with the design of perpe
trating what he knows to be a cheat or deception. 
Constructive fraud consists in any act of commission or 
omission contrary to legal or equitable duty, trust, or 
confidence justly reposed, which is contrary to good 
conscience and operates to the injury of another. Or, as 
otherwise defined, it is an act, statement or omission 
which operates as a virtual fraud on an individual, or 
which, if generally permitted, would be prejudicial to 
the public welfare, and yet may have been unconnected 
with any selfish or evil design. Or, constructive frauds 
are such acts or contracts as, though not originating in 
any actual evil design or contrivance to perpetrate a 
positive fraud or injury upon other persons, are yet, by 
their tendency to deceive or mislead other persons, or to 
violate private or public confidence, or to impair or 
injure the public interests, deemed equally reprehen
sible with actual fraud. Constructive fraud consists in 
any breach of duty which, without an actually fraudu
lent intent, gains an advantage to the person in fault, or 
any one claiming under him, by misleading another to 
his prejudice, or to the prejudice of any one claiming 
under him; or, in any such act or omission as the law 
specially declares to be fraudulent, without respect to 
actual fraud. 
Extrinsic fraud. Fraud which is collateral to the issues 
tried in the case where the judgment is rendered. Type 
of deceit which may form basis for setting aside a 
judgment as for example a divorce granted ex parte 
because the plaintiff-spouse falsely tells the court he or 
she is ignorant of the whereabouts of the defendant
spouse. Patrick v. Patrick, 245 N.C. 195, 95 S.E.2d 585. 
Fraud in fact or in law. Fraud is also classified as fraud 
in fact and fraud in law. The former is actual, positive, 
intentional fraud. Fraud disclosed by matters of fact, as 
distinguished from constructive fraud or fraud in law. 
Fraud in law is fraud in contemplation of law; fraud 
implied or inferred by law; fraud made out by construc
tion of law, as distinguished from fraud found by a jury 
from matter of fact; constructive fraud (q. v.). See also 
Fraud in the factum; Legal or positive fraud, below. 
Fraud in the execution. Misrepresentation that deceives 
the other party as to the nature of a document evidenc
ing the contract. 
Fraud in the factum. Misrepresentation as to the na
ture of a writing that a person signs with neither 
knowledge nor reasonable opportunity to obtain knowl
edge of its character or essential terms. See U.C.C. 
§ 3-305(2)(c). See also Fraud in fact or in law, above. 
Fraud in the inducement. Fraud connected with under
lying transaction and not with the nature of the con
tract or document signed. Misrepresentation as to the 
FRAUDS, STATUTE OF 
terms, quality or other aspects of a contractual relation, 
venture or other transaction that leads a person to agree 
to enter into the transaction with a false impression or 
understanding of the risks, duties or obligations she has 
undertaken. 
Intrinsic fraud. That which pertains to issue involved 
in original action or where acts constituting fraud were, 
or could have been, litigated therein. Fahrenbruch v. 
People ex reI. Taber, 169 Colo. 70, 453 P.2d 601. Perju
ry is an example of intrinsic fraud. 
Larceny. See Larceny (Larceny by fraud or deception). 
Legal or positive fraud. Fraud is also said to be legal or 
positive. The former is fraud made out by legal con
struction or inference, or the same thing as constructive 
fraud. Positive fraud is the same thing as actual fraud. 
Nocatee Fruit Co. v. Fosgate, C.C.A.Fla., 12 F.2d 250, 
252. See also Legal fraud. 
Mail and wire fraud. Criminal offense of using mails or 
interstate wires to create or in furtherance of a scheme 
or artifice to defraud, or for obtaining money or proper
ty by means of false or fraudulent pretenses. 18 U.S. 
C.A. §§ 1341, 1343. 
Statute of frauds. See Frauds, Statute of. 
Tax fraud. Federal offense of willfully attempting to 
evade or defeat the payment of taxes due and owing. 
I.R.C. § 7201. Tax fraud falls into two categories: civil 
and criminal. Under civil fraud, the IRS may impose as 
a penalty an amount equal to 75 percent of the. under
payment. I.R.C. § 6653(b). Fines and/or imprisonment 
are prescribed for conviction of various types of criminal 
tax fraud. I.R.C. §§ 7201-7207. Both civil and criminal 
fraud require a specific intent on the part of the taxpay
er to evade the tax; mere negligence is not enough. 
Criminal fraud requires the additional element of will
fulness (i.e., done deliberately and with evil purpose). In 
practice, it becomes difficult to distinguish between the 
degree of intent necessary to support criminal, rather 
than civil, fraud. In either situation, the IRS has the 
burden of proving fraud. 
Fraudare /froderiy/. Lat. In the civil law, to deceive, 
cheat, or impose upon; to defraud. 
Fraud on court. A scheme to interfere with judicial 
machinery performing task of impartial adjudication, as 
by preventing opposing party from fairly presenting his 
case or defense. Finding of fraud on the court is justi
fied only by most egregious misconduct directed to the 
court itself such as bribery of a judge or jury to fabrica
tion of evidence by counsel and must be supported by 
clear, unequivocal and convincing evidence. In re Coor
dinated Pretrial Proceedings in Antibiotic Antitrust Ac
tions, C.A.Minn., 538 F.2d 180, 195. It consists of con
duct so egregious that it undermines the integrity of the 
judicial process. Stone v. Stone, Alaska, 647 P.2d 582, 
586. 
Frauds, Statute of. This is the common designation of a 
very celebrated English statute (29 Car. II, c. 3), passed 
in 1677, which has been adopted, in a more or less 
modified form, in nearly all of the United States. Its

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FRAUDS, STATUTE OF 
chief characteristic is the provision that no suit or 
action shall be maintained on certain classes of con
tracts or engagements unless there shall be a note or 
memorandum thereof in writing signed by the party to 
be charged or by his authorized agent (e.g., contracts for 
the sale of goods priced at $500 or more; contracts for 
the sale of land; contracts which cannot, by their terms, 
be performed within a year; and contracts to guaranty 
the debt of another). Its object was to close the door to 
the numerous frauds and per juries. It is more fully 
named as the "statute of frauds and perjuries." 
Uniform Commercial Code. U.C.C. § 2-201 provides 
that a contract for the sale of goods for the price of $500 
or more is not enforceable by way of action or defense 
unless there is some writing sufficient to indicate that a 
contract for sale has been made between the parties and 
signed by the party against whom enforcement is sought 
or by his authorized agent or broker. 
Fraudulent. Based on fraud; proceeding from or char
acterized by fraud; tainted by fraud; done, made, or 
effected with a purpose or design to carry out a fraud. 
See also False and fraudulent; Fraud. 
A statement, or claim, or document, is "fraudulent" if 
it was falsely made, or caused to be made, with the 
intent to deceive. 
To act with "intent to defraud" means to act willfully, 
and with the specific intent to deceive or cheat; ordi
narily for the purpose of either causing some financial 
loss to. another, or bringing about some financial gain to 
oneself. 
Fraudulent alienation. In a general sense, the transfer 
of property with an intent to defraud creditors, lienors, 
or others. In a particular sense, the act of an adminis
trator who wastes the assets of the estate by giving them 
away or selling at a gross undervalue. 
Fraudulent alienee Ifr6dy;}1;mt eyl(i)y;}niy/. One who 
knowingly receives from an administrator assets of the 
estate under circumstances which make it a fraudulent 
alienation on the part of the administrator. 
Fraudulent alteration. A change in the terms of an 
instrument, document or other paper made with a dis
honest and deceitful purpose to acquire more than one 
was entitled to under the original terms of the paper. 
See also Alteration; Forgery; Raised check. 
Fraudulent banking. Receipt of deposit by banker who 
knows that bank is insolvent at the time. 
Fraudulent claims. See False claim. 
Fraudulent concealment. The hiding or suppression of 
a material fact or circumstance which the party is 
legally or morally bound to disclose. The employment 
of artifice planned to prevent inquiry or escape investi
gation and to mislead or hinder the acquisition of infor
mation disclosing a right of action; acts relied on must 
be of an affirmative character and fraudulent. Fundun
burks v. Michigan Mut. Liability Co., 63 Mich.App. 405, 
234 N.W.2d 545, 547. The test of whether failure to 
disclose material facts constitutes fraud is the existence 
of a duty, legal or equitable, arising from the relation of 
662 
the parties; failure to disclose a material fact with 
intent to mislead or defraud under such circumstances 
being equivalent to an actual "fraudulent concealment." 
Fraudulent concealment justifying a rescission of a con
tract is the intentional concealment of some fact known 
to the party charged, which is material for the party 
injured to know to prevent being defrauded; the con
cealment of a fact which one is bound to disclose being 
the equivalent of an indirect representation that such 
fact does not exist. See Material fact. 
Fraudulent conversion. Receiving into possession mon
ey or property of another and fraudulently withholding, 
converting, or applying the same to or for one's own use 
and benefit, or to use and benefit of any person other 
than the one to whom the money or property belongs. 
See Conversion. 
Fraudulent conveyance. A conveyance or transfer of 
property, the object of which is to defraud a creditor, or 
hinder or delay him, or to put such property beyond his 
reach. Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 
L.Ed. 419. Conveyance made with intent to avoid some 
duty or debt due by or incumbent on person making 
transfer. 
In bankruptcy law, refers to a gift or transfer of the 
bankrupt's property for little or no consideration at a 
time when the debtor is insolvent, or one which renders 
debtor's capital unreasonably small, or one made by 
debtor who believes that he will not be able to meet 
maturing obligations, or one made with actual intent to 
hinder, delay or defraud his creditors. Such fraudulent 
conveyances may be avoided by the trustee. Bankrupt
cy Code § 548. 
For a conveyance to be a "fraudulent conveyance" 
under Uniform Fraudulent Conveyance Act, there must 
be actual intent to hinder, delay, or defraud creditors, or 
grantor must be insolvent or be rendered insolvent by 
conveyance, and conveyance must be made without fair 
consideration. Georgia-Pacific Corp. v. Lumber Prod
ucts Co., Okl., 590 P.2d 661, 665, 100 A.L.R.3d 1. Many 
states have enacted this Uniform Act. 
Fraudulent intent. Such intent exists where one, either 
with a view of benefitting oneself or misleading another 
into a course of action, makes a representation which 
one knows to be false or which one does not believe to be 
true. In re Orenduf f, D.C.Okl., 226 F.Supp. 312, 314. 
See Fraud; Fraudulent misrepresentation. 
Fraudulent misrepresentation. A false statement as 
to material fact, made with intent that another rely 
thereon, which is believed by other party and on which 
he relies and by which he is induced to act and does act 
to his injury, and statement is fraudulent if speaker 
knows statement to be false or if it is made with utter 
disregard of its truth or falsity. Cormack v. American 
Underwriters Corp., 288 N.W.2d 634. As basis for civil 
action, establishment of representation, falsity, scienter, 
deception, and injury, are generally required. See also 
Deceit; Fraud; Material fact; Misrepresentation. 
Fraudulent or dishonest act. One which involves bad 
faith, a breach of honesty, a want of integrity, or moral

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663 
turpitude. Hartford Acc. & Indem. Co. v. Singer, 185 
Va. 620, 39 S.E.2d 505, 507, 508. 
Fraudulent preferences. See Preference. 
Fraudulent pretense. Crime which consists of a false 
pretense, obtaining property of value thereby, and an 
intent to cheat and defraud. Com. v. Evans, 190 Pa.Su
per. 179, 154 A.2d 57, 81. E.g., credit purchases made 
without requisite intent or ability to pay. 
Fraudulent sale. See Sale. 
Fraudulent transfers. See Fraudulent conveyance. 
Fraunc, fraunche, fraunke !fro1Jk/. See Frank. 
Fraunchise Ifronch�z/frrenchayz/. L. Fr. A franchise. 
Fraus Ifros/. Lat. Fraud. More commonly called, in 
the civil law, "dolus, " and "dolus malus" (q.v.). A 
distinction, however, was sometimes made between 
"{raus" and "dolus''; the former being held to be of the 
most extensive import. 
Fraus dans locum contractui !fros drenz lowk�m 
k;mtrrektyuway I. A misrepresentation or concealment 
of some fact that is material to the contract, and had the 
truth regarding which been known the contract would 
not have been made as made, is called a "fraud dans 
locum contractui ':' i.e., a fraud occasioning the contract, 
or giving place or occasion for the contract. 
Fraus est celare fraudem !fros est s�leriy frod�m/. It 
is a fraud to conceal a fraud. 
Fraus est odiosa et non prresumenda Ifros est 
owdiyows� et non priyz(y)�mend�/. Fraud is odious, and 
not to be presumed. 
Fraus et dolus nemini patrocinari debent !fros et 
dowl�s nem�nay pretr�s�neriy deb�ntl. Fraud and de
ceit should defend or excuse no man. 
Fraus et jus nunquam cohabitant Ifros et j�s n�1Jkw�m 
kowhreb�d�nt/. Fraud and justice never dwell together. 
Fraus latet in generalibus Ifros lret�t in jen�reyl�b�s/. 
Fraud lies hid in general expressions. 
Fraus legis !fros liyj�s/. Lat. In the civil law, fraud of 
law; fraud upon law. See In fraudem legis. 
Fraus meretur fraudem Ifros m�riyt�r frod�m/. Fraud 
merits fraud. 
Fray Ifrey/. See Affray. 
F.R.B. Federal Reserve Board. 
F.R.C.P. Federal Rules of Civil Procedure. 
F.R.D. Federal Rules Decisions. 
Frectum Ifrekt�m/. In old English law, freight. Quoad 
{rectum navium suarum, as to the freight of his vessels. 
Freddie Mac. See Federal Home Loan Mortgage Corpora
tion. 
Frednite. In old English law, a liberty to hold courts 
and take up the fines for beating and wounding. To be 
free from fines. 
Fredstole Ifri9stuwll. Sanctuaries; seats of peace. 
FREE AND EQUAL 
Fredum Ifriyd�m/. A fine paid for obtaining pardon 
when the peace had been broken. A sum paid the 
magistrate for protection against the right of revenge. 
Fredwit, or fredwite Ifri9w�t/. A liberty to hold courts 
and take up the fines for beating and wounding. 
Free. Not subject to legal constraint of another. 
Unconstrained; having power to follow the dictates of 
own will. Not subject to the dominion of another. Not 
compelled to involuntary servitude; used in this sense 
as opposed to "slave." 
Not bound to service for a fixed term of years; in 
distinction to being bound as an apprentice. Enjoying 
full civic rights. Available to all citizens alike without 
charge; as a free school. 
Not despotic; assuring liberty; defending individual 
rights against encroachment by any person or class; 
instituted by a free people; said of governments, institu
tions, etc. 
Certain, and also consistent with an honorable degree 
in life; as free services, in the feudal law. 
Confined to the person possessing, instead of being 
shared with others; as a free fishery. 
Not engaged in a war as belligerent or ally; neutral, 
as in the maxim: "Free ships make free goods." 
See also Freedom. 
Free alms. The name of a species of tenure. See Frank 
almoign. 
Free alongside ship (F AS). In price quotations, means 
that the price includes all costs of transportation and 
delivery of the goods alongside of the ship. See U.C.C. 
§ 2-319(2-4). 
Free and clear. The title to property is said to be "free 
and clear" when it is not incumbered by any liens; but 
it is said that an agreement to convey land "free and 
clear" is satisfied by a conveyance passing a good (i.e. 
marketable) title. 
Free and equal. As used in a constitutional provision 
that election shall be free and equal, the word "free" 
means that every one entitled to vote should have a 
reasonable opportunity to do so, a reasonable manner of 
doing so, etc., and the word "equal" means that every 
vote cast should have its decisive effect in the selection 
or choice to be made at the election. The term means 
that the voter shall not be physically restrained in the 
exercise of his right of franchise, by either civil or 
military authority, and that every voter shall have the 
same right as every other voter. Asher v. Arnett, 280 
Ky. 347, 132 S.W.2d 772, 775. It is the essence of free 
elections that the right of suffrage be untrammeled and 
unfettered, and that the ballot represent and express 
the electors' own intelligent judgment and conscience, 
and there can be no "free election" unless there is 
freedom of opinion. An election to be free must be 
without coercion of any description or any deterrent 
from the elector's exercise of his free will by means of 
any intimidation or influence whatever, although there 
is no violence or physical coercion.

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FREE-BENCH 
Free-bench. In old English law, a widow's dower out of 
copyholds to which she was entitled by the custom of 
some manors. It was regarded as an excrescence grow
ing out of the husband's interest, and was a continuance 
of his estate. 
Free-bord. In old records, an allowance of land over and 
above a certain limit or boundary, as so much beyond or 
without a fence. The right of claiming that quantity. 
Free chapel. In English ecclesiastical law, a place of 
worship, so called because not liable to the visitation of 
the ordinary. It is always of royal foundation, or found
ed at least by private persons to whom the crown has 
granted the privilege. 
Free course. In admiralty law, a vessel having the wind 
from a favorable quarter is said to sail on a "free 
course," or said to be "going free" when she has a fair 
(following) wind and her yards braced in. 
Freedman. In Roman law, one who was set free from a 
state of bondage; an emancipated slave. The word was 
used in the same sense in the United States, respecting 
negroes who were formerly slaves. 
Freedom. The state of being free; liberty; self-determi
nation; absence of restraint; the opposite of slavery. 
The power of acting, in the character of a moral 
personality, according to the dictates of the will, without 
other check, hindrance, or prohibition than such as may 
be imposed by just and necessary laws and the duties of 
social life. See Liberty. 
The prevalence, in the government and constitution of 
a country, of such a system of laws and institutions as 
secure civil liberty to the individual citizen. 
Freedom of association. Right to peaceably assemble 
as guaranteed by First Amendment of U.S. Constitution. 
See Association. 
Freedom of choice. As used in context of freedom of 
choice to attend school of choice in unitary, integrated 
school system, devoid of any de jure segregation, means 
the maximum amount of freedom and clearly under
stood choice in bona fide unitary system where schools 
are not white schools or Negro schools, but just schools. 
Hall v. St. Helena Parish School Bd., D.C.La., 268 
F.Supp. 923, 926. With respect to punishment, loss of 
freedom of choice is a natural by-product of the deten
tion process and should not be considered "punishment" 
in the constitutional sense. Bell v. Wolfish, 441 U.S. 
520, 537, 99 S.C�. 1861, 1873, 60 L.Ed.2d 447 (1979). 
Freedom of contract. A basic right reserved to the 
people by the Constitution (Art. I, § 10) that a state 
cannot violate even under sanction of direct legislative 
act. Springfield Fire & Marine Ins. Co. v. Holmes, 
D.C.Mont., 32 F.Supp. 964, 987. See also Impairing the 
obligation of contract; Liberty (Liberty of contract). 
Freedom of expression. Right guaranteed by First 
Amendment of U.S. Constitution; includes freedom of 
religion, speech, and press. See also Liberty. 
Freedom of Information Act. The Freedom of Infor
mation Act (5 U.S.C.A. § 552) provides for making infor-
664 
mation held by Federal agencies available to the public 
unless it comes within one of the specific categories of 
matters exempt from public disclosure. Virtually all 
agencies of the executive branch of the Federal Govern
ment have issued regulations to implement the Freedom 
of Information Act. These regulations inform the public 
where certain types of information may be readily ob
tained, how other information may be obtained on re
quest, and what internal agency appeals are available if 
a member of the public is refused requested information. 
This Act is designed to prevent abuse of discretionary 
power of federal agencies by requiring them to make 
public certain information about their workings and 
work product. 
Freedom of press. Right to publish and distribute one's 
thoughts and views without governmental restriction as 
guaranteed by First Amendment of U.S. Constitution. 
Such right includes freedom from prior restraint of 
publication. There is little difference between "freedom 
of speech" and "freedom of press." Klahr v. Winterble, 
4 Ariz.App. 158, 418 P.2d 404, 415. See Censor; Censor
ship; Gag order; Liberty (Liberty of the press); Prior 
restraint. 
Freedom of religion. Freedom to individually believe 
and to practice or exercise one's belief. In re Elwell, 55 
Misc.2d 252, 284 N.Y.S.2d 924, 930. This First Amend
ment protection embraces the concept of freedom to 
believe and freedom to act, the first of which is absolute, 
but the second of which remains subject to regulation 
for protection of society. Oney v. Oklahoma City, C.C.A. 
Okl., 120 F.2d 861, 865. Such freedom means not only 
that civil authorities may not intervene in affairs of 
church; it also prevents church from exercising its au
thority through state. Eastern Conference of Original 
Free Will Baptists of N. C. v. Piner, 267 N.C. 74, 147 
S.E.2d 581, 583. See also Establishment clause; Free 
exercise clause; Liberty {Religious liberty}. 
Freedom of speech. Right guaranteed by First Amend
ment of U.S. Constitution to express one's thoughts and 
views without governmental restrictions. See also Fight
ing words doctrine; Liberty (Liberty of speech); Speech or 
debate clause. 
Freedom of the city. In English law, this phrase signi
fies immunity from county jurisdiction, and the privi
lege of corporate taxation and self-government held un
der a charter from the crown. This freedom is enjoyed 
of right, subject to the provision of the charter, and is 
often conferred as an honor on princes and other distin
guished individuals. The freedom of a city carries the 
parliamentary franchise. The rights and privileges pos
sessed by the burgesses or freemen of a municipal corpo
ration under the old English law; now of little impor
tance, and conferred chiefly as a mark of honor. 
The phrase has no place in American law, and as 
frequently used in addresses of welcome made to orga
nizations visiting an American city, particularly by may
ors, has no meaning whatever except as an expression of 
good will.

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665 
Free election. Exists where each voter is allowed to 
cast his ballot as his own conscience dictates. See also 
Free and equal. 
Free enterprise. The right to conduct a legitimate 
business for profit, under usual laws of supply and 
demand, without undue government interference. La
fayette Dramatic Productions v. Ferentz, 9 N.W.2d 57, 
62, 305 Mich. 193. 
Free entry, egress, and regress. An expression used to 
denote that a person has the right to go on land again 
and again as often as may be reasonably necessary. 
Thus, in the case of a tenant entitled to emblements. 
Free exercise clause. First Amendment to U.S. Consti
tution provides that "Congress shall make no law re
specting an establishment of religion, or prohibiting the 
free exercise thereof." See also Establishment clause; 
Freedom of religion; Liberty. 
Free fishery. See Fishery. 
Freehold. An estate for life or in fee. Intermountain 
Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 706. A 
"freehold estate" is a right of title to land. Cohn v. 
Litwin, 311 Ill.App. 55, 35 N.E.2d 410, 413. An estate in 
land or other real property, of uncertain duration; that 
is, either of inheritance or which may possibly last for 
the life of the tenant at the least (as distinguished from 
a leasehold); and held by a free tenure (as distinguished 
from copyhold or villeinage). 
An estate to be a freehold must possess these two 
qualities: (1) Immobility, that is, the property must be 
either land or some interest issuing out of or annexed to 
land; and (2) indeterminate duration, for, if the utmost 
period of time to which an estate can endure be fixed 
and determined, it cannot be a freehold. 
Freehold in deed is the real possession of land or 
tenements in fee, fee-tail, or for life. Freehold in law is 
the right to such tenements before entry. The term has 
also been applied to those offices which a man holds in 
fee or for life. 
Determinable freeholds are estates for life, which may 
determine upon future contingencies before the life for 
which they are created expires, as if an estate be grant
ed to a woman during her widowhood, or to a man until 
he be promoted to a benefice. In these and similar 
cases, whenever the contingency happens,-when the 
widow marries, or when the grantee obtains the benef
ice,-the respective estates are absolutely determined 
and gone. Yet, while they subsist, they are reckoned 
estates for life; because they may by possibility last for 
life, if the contingencies upon which they are to deter
mine do not sooner happen. 2 Bl.Comm. 121. 
Freehold in law is a freehold which has descended to a 
man, upon which he may enter at pleasure, but which 
he has not entered on. 
Freeholder. One having title to realty; either of inheri
tance or for life; either legal or equitable title. A 
person who possesses a freeholder estate; i.e. the owner 
of a freehold. 
FREE SERVICES 
Freehold land societies. Societies in England designed 
for the purpose of enabling mechanics, artisans, and 
other workingmen to purchase at the least possible price 
a piece of freehold land of a sufficient yearly value to 
entitle the owner to the elective franchise for the county 
in which the land is situated. 
Free ice. All ice in navigable streams not included 
within that authorized to be appropriated is sometimes 
called "free" ice, and does not belong to the adjacent 
riparian owners, but to the person who first appropri
ates it. Hudson River Ice Co. v. Brady, 158 App.Div. 
142, 142 N.Y.S. 819, 821. 
Free law. A term formerly used in England to designate 
the freedom of civil rights enjoyed by freemen. It was 
liable to forfeiture on conviction of treason or an infa
mous crime. 
Freeman. A person in the possession and enjoyment of 
all the civil and political rights accorded to the people 
under a free government. 
In the Roman law, it denoted one who was either born 
free or emancipated, and was the opposite of "slave." In 
feudal law, it designated an allodial proprietor, as distin
guished from a vassal or feudal tenant. (And so in 
Pennsylvania colonial law.) In old English law, the 
word described a freeholder or tenant by free services; 
one who was not a villein. The term later referred to a 
member of a city or borough having the right of suf
frage, or a member of any municipal corporation invest
ed with full civic rights. 
Freeman's roll. A list of persons admitted as burgesses 
or freemen for the purposes of the rights reserved by the 
municipal corporation act. Distinguished from the Bur
gess Roll. The term was used, in early colonial history, 
in some of the American colonies. 
Free men. Before the Norman Conquest, a free man 
might be a man of small estate dependent on a lord. 
Every man, not himself a lord, was bound to have a lord 
or be treated as unworthy of a free man's right. Among 
free men there was a difference in their estimation for 
Wergild. See Homo liber. 
Free on board (FOB). The term "F.O.B." is an abbrevi
ation for "free on board" and means that seller will 
deliver subject matter contracted for, on certain convey
ance, without expense to buyer. Tyson v. Seaport 
Grain, Inc., Tex.Civ.App., 388 S.W.2d 731, 735. In sales 
price quotation, means generally that the seller assumes 
all responsibilities and costs up to the point of delivery, 
including insurance, transportation, etc. See U.C.C. 
§ 2--319. 
Free port. An area or section of a port set aside for 
handling of foreign goods without entering customs. See 
also Foreign trade zone. 
Free press. See Freedom of press. 
Free services. In feudal and old English law, such 
feudal services as were not unbecoming the character of 
a soldier or a freeman to perform; as to serve under his 
lord in the wars, to pay a sum of money, and the like.

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FREE SHAREHOLDERS 
Free shareholders. The free shareholders of a building 
and loan association are subscribers to its capital stock 
who are not borrowers from the association. 
Free ships. In international law, ships of a neutral 
nation. The phrase "free ships shall make free goods" 
is often inserted in treaties, meaning that goods, even 
though belonging to an enemy, shall not be seized or 
confiscated, if found in neutral ships. 
Free socage. See Socage. 
Free tenure. Tenure by free services; freehold tenure. 
Free time. Period that railroad car or vessel may re-
main unloaded before demurrage charges begin. 
Free trade. A situation where all commodities can be 
freely imported and exported without special taxes or 
restrictions being levied. 
Free trade zone. See Foreign trade zone. 
Free warren. See Warren. 
Freeze-out. Refers to a process, usually in a closely held 
corporation, by which minority shareholders are pre
vented from receiving any direct or indirect financial 
return from the corporation in an effort to persuade 
them to liquidate their investment in the corporation on 
terms favorable to the controlling shareholders. The 
use of corporate control vested in the statutory majority 
of shareholders or the board of directors to eliminate 
minority shareholders from the enterprise or to reduce 
to relevant insignificance their voting power or claims 
on corporate assets. It implies a purpose to force upon 
the minority shareholder a change which is not incident 
to any other business goal of the corporation. Gabhart 
v. Gabhart, Ind., 370 N.E.2d 345, 353. See also Squeeze
out. 
Freight. The price or compensation paid for the trans
portation of goods by a carrier. Name also applied to 
goods transported by such carriers. See also Freight rate. 
Dead freight. Money payable by a person who has 
chartered a ship and only partly loaded her, in respect 
of the loss of freight caused to the ship-owner by the 
deficiency of cargo. 
Freight booking. Making of specific arrangements for 
the transportation of goods in advance. See Forwarding 
agent; Freight forwarder. 
Freighter. One who charters a ship to transport cargo; 
also, the vessel so chartered. The party by whom a 
vessel is engaged or chartered; otherwise called the 
"charterer." In French law, the owner of a vessel is 
called the "freighter" (freteur); the merchant who hires 
it is called the "affreighter" {affreteur}. 
Freight forwarder. One who in the ordinary course of 
business assembles and consolidates small shipments 
into a single lot and assumes responsibility for transpor
tation of such property from point of receipt to point of 
destination. Mercury Motor Express, Inc. v. Brinke, 
C.A.Fla., 475 F.2d 1086, 1090. Freight forwarders col
lect and consolidate less than carload or less than truck
load shipments and secure common carrier tranSPOrta-
666 
tion for the long haul movement of property owned by 
individual shippers by carload or truckload. National 
Motor Freight Traffic Ass'n v. U. S., D.C.D.C., 253 
F.Supp. 661, 663. 
Freight mile. The equivalent of one ton of goods (i.e. 
freight) carried one mile. 
Freight rate. The transportation charge for goods car
ried based on number of pieces carried, or the weight, or 
the mileage, or the value of the goods, or a combination 
thereof. 
Freight then pending. Earnings of the voyage. The C. 
F. Coughlin, D.C.N.Y., 25 F.Supp. 649, 650. 
Frenchman. In early times, in English law, this term 
was applied to every stranger or "outlandish" man. 
French pool. A system of gambling, especially on horse 
races, now generally known as "pari mutuel" {q.v.}. 
Frendlesman Ifrendl;}sm:m/. Sax. An outlaw. So 
called because of his outlawry he was denied all help of 
friends after certain days. 
Frendwite Ifrendwayt/. In old English law, a mulct or 
fine exacted from him who harbored an outlawed friend. 
Freneticus Ifr;}ned;}k;}s/. In old English law, a madman, 
or person in a frenzy. 
Freoborgh Ifriyborg/. A free-surety, or free-pledge. 
See Frank-pledge. 
Freoling IfriylilJ/. (Sax. freoh, free, plus ling, progeny.) 
A freeman born. See Frilingi. 
. 
Frequent Ifr;}kwent/, v. To visit often; to resort to 
often or habitually. 
Frequenter Ifr;}kwent;}r/. Any person not an employee 
who may go in or be in place of employment or public 
building under circumstances which render him other 
than trespasser. An employee of an independent con
tractor working upon the premises of an owner is a 
"frequenter" working in a place of employment. Young 
v. Anaconda Am. Brass Co., 43 Wis.2d 36, 168 N.W.2d 
112, 117. 
Frequentia actus multum operatur Ifr;}kwensh(iy);} 
rekt;}s m.llt;}m op;}reyt;}r I. The frequency of an act ef
fects much. A continual usage is of great effect to 
establish a right. 
Frere I frerl. Fr. A brother. Frere eyne, elder brother. 
Frere puisne, younger brother. 
Fresca Ifresk;}/. In old records, fresh water, or rain and 
land flood. 
Fresh. Immediate; recent; following without any mate
rial interval. 
Fresh complaint rule. The fresh complaint rule pro
vides that in certain sexual assault cases proof that the 
alleged victim complained of the criminal act within a 
reasonable time after it occurred to a person she would 
ordinarily turn to for help or advice is admissible to 
bolster the credibility of the victim. State v. Tirone, 64 
N.J. 222, 314 A.2d 601.

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667 
Fresh disseisin Ifresh d�siyz:m/. By the ancient com
mon law, where a man had been disseised, he was 
allowed to right himself by force, by ejecting the dissei
sor from the premises, without resort to law, provided 
this was done forthwith, while the disseisin was fresh 
{flagrante disseisina}. 
Freshet Ifresh�tI. A flood, or overflowing of a river, by 
means of rains or melted snow; an inundation. 
Fresh fine. In old English law, a fine that had been 
levied within a year past. 
Fresh pursuit. Refers to common-law right of police 
officer to cross jurisdictional lines in order to arrest a 
felon. Carson v. Pape, 15 Wis.2d 300, 112 N.W.2d 693, 
697. Several states have adopted the Uniform Extra
Territorial Arrest on Fresh Pursuit Act. Basically, the 
law permits a police officer, of a state which has enacted 
the Act, to enter a state, which has enacted a similar 
Act, if he is in fresh pursuit and he can continue in 
fresh pursuit, of a person in order to arrest him on the 
ground that he had committed a felony in the state of 
the pursuing officer. The officer has the same powers of 
arrest and to hold in custody as the law enforcement 
officials of the state that he has entered. 
Also refers to Fourth Amendment doctrine allowing 
warrantless searches and arrests where police pursue a 
fleeing suspect into a protected area. 
One from whom property has been taken may use 
reasonable force to retake it if such force is used imme
diately after the taking. Sometimes referred to as hot 
pursuit. 
Fresh start adjustment. For persons dying after 1976, 
normally the decedent's income tax basis in property 
will carry over to the estate of heirs. The "fresh start" 
adjustment, however, permits an addition to basis for 
the appreciation attributable to the period from the date 
the property was acquired by the decedent to December 
31, 1976. The "fresh start" adjustment is only allowed 
for purposes of determining income tax gain on the later 
disposition of the property by the estate or heirs. I.R.C. 
§ 1023. 
Fresh suit. In old English law, immediate and unremit
ting pursuit of an escaping thief. "Such a present and 
earnest following of a robber as never ceases from the 
time of the robbery until apprehension." 
Fret. Fr. In French marine law, freight. 
Freter Ifreytey/. Fr. In French marine law, to freight 
a ship; to let it. 
Freteur IfreytyUr/. Fr. In French marine law, freight
er. The owner of a ship, who lets it to the merchant. 
Frettum, frectum Ifre(k)t�m/. In old English law, the 
freight of a ship; freight money. 
Fretum Ifriyt�m/. Lat. A strait. 
Friars Ifray�rz/. An order of religious persons, of whom 
there were four principal branches, viz.: (1) Minors, 
Grey Friars, or Franciscans; (2) Augustines; (3) Domini-
FRINGE BENEFITS 
cans, or Black Friars; (4) White Friars, or Carmelites, 
from whom the rest descend. 
Friburgh Ifriyb�rg/. (Also, Frithborg, Frithborgh, Fri
borg, Froborg, and Freoburgh.) (Sax.) A kind of frank
pledge whereby the principal men were bound for them
selves and servants. 
Fribusculum Ifr�b:}sky�l�m/. In the civil law, a tempo
rary separation between husband and wife, caused by a 
quarrel or estrangement, but not amounting to a di
vorce, because not accompanied with an intention to 
dissolve the marriage. 
Fridborg, frithborg Ifrioborg/. Frank-pledge. Security 
for the peace. 
Fridhburgus Ifriob:}rg�s/. In old English law, a kind of 
frank-pledge, by which the lords or principal men were 
made responsible for their dependents or servants. 
Friend. One favorably disposed. Ned v. Robinson, 181 
Oklo 507, 74 P.2d 1156. Varying in degree from greatest 
intimacy to acquaintance more or less casual. United 
States Trust Co. of Newark v. Montclair Trust Co., 133 
N.J.Eq. 579, 33 A.2d 901, 903. One that seeks society or 
welfare of another whom one holds in affection, respect 
or esteem or whose companionship and personality are 
pleasurable; acquaintance, intimate, or confidant. 
Sioux Associates, Inc. v. Iowa Liquor Control Commis
sion, 257 Iowa 308, 132 N.W.2d 421, 426. See also Next 
friend. 
Friendless man. In old English law, an outlaw; so 
called because he was denied all help of friends. 
Friendly fire. Fire burning in place where it was in
tended to burn, although damages may result. Progress 
Laundry & Cleaning Co. v. Reciprocal Exchange, Tex. 
Civ.App., 109 S.W.2d 226, 227. 
Friendly societies. In English law, associations sup
ported by subscription, for the relief and maintenance of 
the members, or their wives, children, relatives, and 
nominees, in sickness, infancy, advanced age, widow
hood, etc. The statutes regulating these societies were 
consolidated and amended by St. 38 & 39 Viet., c. 60. 
Friendly suit. A suit brought by a creditor against an 
executor or administrator, being really a suit by the 
executor or administrator, in the name of a creditor, 
against himself, in order to compel the creditors to take 
an equal distribution of the assets. Also any suit insti
tuted by agreement between the parties to obtain the 
opinion of the court upon some doubtful question in 
which they are interested. See also Amicable action; 
Declaratory judgment. Compare Adversary proceeding. 
Friend of the court. See Amicus curia!. 
Frilingi Ifr�linjay/. Persons of free descent, or freemen 
born; the middle class of persons among the Saxons. 
See Freoling. 
Fringe benefits. Side, non-wage benefits which accom
pany or are in addition to a person's employment such 
as paid insurance, recreational facilities, sick leave, prof
it-sharing plans, paid holidays and vacations, etc. Such

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FRINGE BENEFITS 
benefits are in addition to regular salary or wages and 
are a matter of bargaining in union contracts. See also 
Cafeteria plan; Pension plan; Perquisites. 
Frisk. Contact of the outer clothing of a person to detect 
by the sense of touch whether a concealed weapon is 
being carried. People v. Francis, 1 Dept., 108 A.D.2d 
322, 489 N.Y.S.2d 166. A pat-down search of a suspect 
by police, designed to discover weapons for purpose of 
insuring safety of officer and others nearby, and not to 
recover contraband or other evidence for use at subse
quent trial. The scope of a frisk has been limited by the 
courts to be less than a full-scale search. In determin
ing whether a police officer had a basis for initiating a 
frisk, there are two matters to be considered. One 
concerns whether the officer had a sufficient degree of 
suspicion that the party frisked was armed and danger
ous, and the other whether the officer was rightfully in 
the presence of the party frisked so as to be endangered 
if that person was armed. Terry v. Ohio, 392 U.S. 1, 88 
S.Ct. 1868, 20 L.Ed.2d 889. See also Stop and frisk. 
Frith. Sax. Peace, security, or protection. This word 
occurs in many compound terms used in Anglo-Saxon 
law. 
Frithborg IfriOborg/. Frank-pledge. 
Frithbote IfriObowt/. A satisfaction or fine, for a breach 
of the peace. 
Frithbreach IfriObriych/. The breaking of the peace. 
Frithgar IfriOgar/. The year of jubilee, or of meeting for 
peace and friendship. 
Frithgilda IfriOgild�/. Guildhall; a company or frater
nity for the maintenance of peace and security; also a 
fine for breach of the peace. 
Frithman IfriOmren/. A member of a company or frater
nity. 
Frithsocne Ifri(Jsowk�n/. Surety of defense. Jurisdic
tion of the peace. The franchise of preserving the peace. 
Also spelled "frithsoken." 
Frithsplot IfriOsplOt/. A spot or plot of land, encircling 
some stone, tree, or well, considered sacred, and there
fore affording sanctuary to criminals. 
Frithstool IfriOstuwl/. The stool of peace. A stool or 
chair placed in a church or cathedral, and which was 
the symbol and place of sanctuary to those who fled to it 
and reached it. 
Frivolous. Of little weight or importance. A pleading 
is "frivolous" when it is clearly insufficient on its face, 
and does not controvert the material points of the oppo
site pleading, and is presumably interposed for mere 
purposes of delay or to embarrass the opponent. A 
claim or defense is frivolous if a proponent can present 
no rational argument based upon the evidence or law in 
support of that claim or defense. Liebowitz v. Aimexco 
Inc., Colo.App., 701 P.2d 140, 142. Frivolous pleadings 
may be amended to proper form, or ordered stricken, 
under federal and state Rules of Civil Procedure. 
668 
Frivolous action. Groundless lawsuit with little pros
pect of success; often brought to embarrass or annoy the 
defendant. See Failure to state cause of action. 
Frivolous appeal. One in which no justiciable question 
has been presented and appeal is readily recognizable as 
devoid of merit in that there is little prospect that it can 
ever succeed. Brooks v. General Motors Assembly Divi
sion, Mo.App., 52/, S.W.2d 50, 53. In federal practice, if 
a court of appeal:; determines that an appeal is "friv
olous," it may award damages and single or double costs 
to the appellee. Fed.R.App.P. 38. 
From. As used aB a function word, implies a starting 
point, whether it be of time, place, or condition; and 
meaning having a starting point of motion, noting the 
point of departure, origin, withdrawal, etc., as he trav
eled "from" New York to Chicago. Silva v. MacAuley, 
135 Cal.App. 249, 26 P.2d 887. One meaning of "from" 
is "out of'. Word "from" or "after" an event or day 
does not have an absolute and invariable meaning, but 
each should receive an inclusion or exclusion construc
tion according to intention with which such word is 
used. Acme Life Ins. Co. v. White, Tex.Civ.App., 99 
S.W.2d 1059, 1060. Words "from" and "to," used in 
contract, may be given meaning to which reason and 
sense entitles them, under circumstances of case. Wood
ruff v. Adams, 134 Cal.App. 490, 25 P.2d 529. 
From one place to another. From premises owned by 
one person to prl�mises owned by another person in 
some legal subdivision or from one legal subdivision to 
another. 
From person. Includes taking from presence of person 
assaulted as well as taking of property in actual contact 
with person of onEl robbed. 
From, through, or under. The term refers to origin or 
devolution of property, and unless some title to or inter
est therein has beEm derived by assignment or otherwise 
from party adversl� to decedent's estate, statute barring 
testimony is inapplicable. 
From time to timE!. Occasionally, at intervals, now and 
then. See From. 
Front. Forepart, as opposed to the back or rear. Any 
side or face of a bu.ilding is a front, although the word is 
more commonly used to denote the entrance side. In re 
McInerney, 47 Wyo. 258, 34 P.2d 35, 43. As applied to a 
bare lot, it is that side of lot towards which, in ordinary 
circumstances, house, when built, will most likely face, 
and very general usage of building houses with their 
main entrance toward shorter street line results in 
common understanding that this is side intended when 
front of lot is refe:rred to. 
Frontage. Linear distance of property along street, 
highway, river, or lake. Extent of front along road or 
street. Tzeses v. Barbahenn, 125 N.J.L. 643, 17 A.2d 
539, 540. The line of property on a public street. Jag
endorf v. City of Memphis, Tenn., 520 S.W.2d 333, 335. 
Space available for erection. of buildings, and does not 
include cross streets or space occupied by sidewalk or 
any ornamental spaces in plat between sidewalks and

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curb. The expense of local improvements made by 
municipal corporations (such as paving, curbing, and 
sewering) is generally assessed on abutting property 
owners in proportion to the "frontage" of their lots on 
the street or highway, and an assessment so levied being 
called a "frontage assessment." 
Front foot. Measurement used in assessing and appor
tioning cost of public improvements; e.g. curbs, sewers, 
sidewalks, streets. As respects assessment, synonymous 
with "abutting foot." See also Frontage. 
Front-foot rule. One by which cost of improvement is to 
be apportioned among several properties in proportion 
to their frontage on improvement and without regard to 
benefits conferred. 
Frontier. In international law, that portion of the terri
tory of any country which lies close along the border 
line of another country, and so "fronts" or faces it. 
Border between two countries. The term means some
thing more than the boundary line itself, and includes a 
tract or strip of country, of indefinite extent, contiguous 
to the line. 
Fronting and abutting. Very often, "fronting" signifies 
abutting, adjoining, or bordering on, depending largely 
on the context. Rombauer v. Compton Heights Chris
tian Church, 328 Mo. 1, 40 S.W.2d 545, 551. As used in 
statutes relating to assessment for improvements, prop
erty between which and the improvement there is no 
intervening land. 
Front wages. Type of prospective compensation paid to 
a victim of job discrimination without harm to incum
bent employees until the victim achieves the position 
that he would have attained but for the illegal and 
discriminatory act. See also Back pay award. 
Frozen account. An account in which no activity is 
permitted until a court order is lifted. 
Frozen assets. Those assets of a business which cannot 
be readily sold without injuring the capital structure of 
the business in contrast to liquid assets which are readi
ly convertible into cash. 
Frozen deposits. Bank deposits that cannot be with
drawn because, for example, the financial institution is 
bankrupt or insolvent. In general, taxpayers are not 
required to report interest on frozen deposits. 
Fructuarius Ifr�ktyuweriY::ls/. Lat. In the civil law, 
one who had the usufruct of a thing; i.e., the use of the 
fruits, profits, or increase, as of land or animals. Brac
ton applies it to a lessee, fermor, or farmer of land, or 
one who held lands ad {irmam, for a farm or term. 
Fructus Ifr:)kt::ls/. Lat. In the civil law, fruit, fruits; 
produce; profit or increase; the organic productions of a 
thing. The right to the fruits of a thing belonging to 
another. The compensation which a man receives from 
another for the use or enjoyment of a thing, such as 
interest or rent. 
Fructus augent hrereditatem /fr:)kt::ls 6g::lnt 
h::lred::lteyt::lm/. The yearly increase goes to enhance the 
inheritance. 
FRUIT 
Fructus civiles Ifr:)kt::ls siv::lliyz/. All revenues and 
recompenses which, though not fruits, properly speak
ing, are recognized as such by the law. The term 
includes such things as the rents and income of real 
property, interest on money loaned, and annuities. 
Fructus fundi Ifr:)kt::ls f:)nday/. The fruits (produce or 
yield) of land. 
Fructus industriales Ifr:)kt::ls ::Ind�striyeyliyz/. Indus
trial fruits, or fruits of industry. Those fruits of a thing, 
as of land, which are produced by the labor and industry 
of the occupant, as crops of grain; as distinguished from 
such as are produced solely by the powers of nature. 
Emblements are so called in the common law. Annual 
crops obtained by yearly labor and cultivation. Term 
includes those plants which are sown annually and 
grown primarily by manual labor such as wheat, corn 
and vegetables. Key v. Loder, D.C.Mun.App., 182 A.2d 
60, 61. 
Fructus legis /fr:)kt::ls liyj::ls/. The fruit of the law, i.e. 
execution. 
Fructus naturales Ifr:)kt::ls mi!tY::lreyliyz/. Those prod
ucts which are produced by the powers of nature alone; 
as wool, metals, milk, the young of animals. Term 
includes any plant which has perennial roots, such as 
trees, shrubs and grasses. Key v. Loder, D.C.Mun.App., 
182 A.2d 60, 61. 
Fructus pecudum Ifr:)kt::ls pekY::ld::lm/. The produce or 
increase of flocks or herds. 
Fructus pendentes Ifr:)kt::ls pendentiyz/. Hanging 
fruits; those not severed. The fruits united with the 
thing which produces them. These form a part of the 
principal thing. 
Fructus pendentes pars fundi videntur Ifr:)kt::ls pen
dentiyz parz f:)nday v::ldent::lr/. Hanging fruits make 
part of the land. 
Fructus perceptos villre non esse constat Ifr:)kt::ls 
p::lrseptows viliy non esiy k6nst::lt/. Gathered fruits do 
not make a part of the farm. 
Fructus rei alienre I fr:)kt::ls riyay reliyiyniy I. The fruits 
of another's property; fruits taken from another's es
tate. 
Fructus separati Ifr:)kt::lS sep::lreytay I. Separate fruits; 
the fruits of a thing when they are separated from it. 
Fructus stantes Ifr:)kt::ls strentiyz/. Standing fruits; 
those not yet severed from the stalk or stem. 
Fruges Ifrujiyz/. In the civil law, anything produced 
from vines, underwood, chalk-pits, stone-quarries. 
Grains and leguminous vegetables. In a more re
stricted sense, any esculent growing in pods. 
Fruit. The produce of a tree or plant which contains the 
seed or is used for food. The edible reproductive body of 
a seed plant. The effect or consequence of an act or 
operation. 
Civil fruits. In the civil law (fructus civi les) are such 
things as the rents and income of real property, the

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interest on money loaned, and annuities. Rents and 
revenues of an immovable. 
Fruit fallen. In old English law, the produce of any 
possession detached therefrom, and capable of being 
enjoyed by itself. Thus, a next presentation, when a 
vacancy has occurred, is a fruit fallen from the advow
son. 
Natural fruits. In the civil law, the produce of the soil, 
or of fruit-trees, bushes, vines, etc., which are edible or 
otherwise useful or serve for the reproduction of their 
species. The term is used in contradistinction to "artifi
cial fruits," i.e., such as by metaphor or analogy are 
likened to the fruits of the earth. Of the latter, interest 
on money is an example. 
Fruit and the tree doctrine. The courts have held that 
an individual who earns income from his property or 
services cannot assign that income to another to avoid 
taxation. For example, a father cannot assign his earn
ings from commissions to his son and escape income tax 
on such amount. 
Fruit of poisonous tree doctrine. Evidence which is 
spawned by or directly derived from an illegal search or 
illegal interrogation is generally inadmissible against 
the defendant because . of its original taint, though 
knowledge of facts gained independently of the original 
and tainted search is admissible. Wong Sun v. V. S., 
371 V.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This doctrine 
is to the effect that an unlawful search taints not only 
evidence obtained at the search, but facts discovered by 
process initiated by the unlawful search. This doctrine 
is generally applied to cases involving searches in viola
tion of the Fourth Amendment to the Constitution right 
against unlawful searches and seizures, but it can be 
applied to searches in violation of a statutory right. 
Duncan v. State, 278 Ala. 145, 176 So.2d 840, 865. See 
Exclusiona ry rule. 
Fruits of crime. In the law of evidence, material objects 
acquired by means and in consequence of the commis
sion of crime, and sometimes constituting the subject
matter of the crime. See also Fruit of poisonous tree 
doctrine. 
Frumenta qure sata sunt solo cedere intelliguntur 
Ifr;)mEmt;) kwiy seyt;) s;lnt sowlow siyd;)riy intel;)g;}nt;)r/. 
Grain which is sown is understood to form a part of the 
soil. 
Frumentum Ifr;)ment;)m/. In the civil law, grain. That 
which grows in an ear. 
Frumgyld Ifr;}mgild/. Sax. The first payment made to 
the kindred of a slain person in recompense for his 
murder. 
Frumstoll Ifr;}mstol/. Sax. In Saxon law, a chief seat, 
or mansion house. 
Frusca terra Ifr;}sk;) tehr;)/. In old records, uncultivated 
and desert ground. 
Fruss ura Ifr�shur;)/. A breaking; plowing. 
670 
Frustra Ifr;}str;)/. Lat. Without effect, in vain, to no 
purpose, uselessly; without reason or cause, groundless
ly; in error. 
Frustra agit qui judicium prosequi nequit cum effec
tu Ifr;}st;) eyj;)t kway j;)dish(iy);)m pros;)kway nekw;)t 
k;lm ;)fektyuw/. He sues to no purpose who cannot 
prosecute his judgment with effect [who cannot have the 
fruits of his judgment]. 
Frustra [vana] est potentia qure nunquam venit in 
actum Ifr;}str;) est p;)tenshiy;) kwiy n;}l)kw;)m viyn;)t in 
rekt;)m/veyn;)o I. That power is to no purpose which 
never comes into act, or which is never exercised. 
Frustra expectatur eventus cujus effectus nullus se
quitur Ifr;}str;) ekspekteyt;)r ;)vent;)s ky11wj;)s ;)fekt;)s 
n;}l;)s sekw;)t;)r/. An event is vainly expected from 
which no effect follows. 
Frustra feruntur leges nisi subditis et obedientibus 
Ifr;}str;) f;)r;}nt;)r liyjiyz naysay s;}bd;)t;)s et 
;)biydiyent;)b;)s/. Laws are made to no purpose, except 
for those that are subject and obedient. 
Frustra fit per plura, quod fieri potest per pauciora 
Ifr;}str;) fit p;lr pl(y)ur;), kwod fay;)ray powt;)st p;lr 
posiyor;)/. That is done to no purpose by many things 
which can be done by fewer. The employment of more 
means or instruments for effecting a thing than are 
necessary is to no purpose. 
Frustra legis auxilium invocat [qurerit] qui in legem 
committit Ifr;}str;) liyj;)s ogzil(i)y;)m invowk;)t kway ;)n 
liyj;)m k;)mit;)tl"kwir;)tO I. He vainly invokes the aid of 
the law who transgresses the law. 
Frustra petis quod mox es restiturus Ifr;}str;) pet;)s 
kwod moks es rest;)t(y)ur;)s/. In vain you ask that 
which you will have immediately to restore. 
Frustra petis quod statim alteri reddere cogeris 
Ifr;}str;) pet;)S kwod stred;)m olt;)ray red;)riy koj;)r;)s/. 
You ask in vain that which you might immediately be 
compelled to restore to another. 
Frustra probatur quod probatum non relevat Ifr;}str;) 
pr;)beyt;)r kwod pr;)beyt;)m non rel;)v;)t/. That is proved 
to no purpose which, when proved, does not help. 
Frustration of contract. This doctrine provides, gener
ally, that where existence of a specific thing is, either by 
terms of contract or in contemplation of parties, neces
sary for performance of a promise in the contract, duty 
to perform promise is discharged if thing is no longer in 
existence at time for performance. Glidden Co. v. Hel
lenic Lines, Limited, C.A.N.Y., 275 F.2d 253, 255. See 
V.C.C. § 2-615. See also Commercial impracticability; 
Impossibil ity. 
Frustration of purpose doctrine. A court-created doc
trine under which a party to a contract will be relieved 
of his or her duty to perform when the objective purpose 
for performance no longer exists (due to reasons beyond 
that party's control). This doctrine excuses a promisor 
in certain situations when the objectives of contract 
have been utterly defeated by circumstances arising 
after formation of agreement, and p erformance is ex-

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cused under this rule even though there is no impedi
ment to actual performance. Hess v. Dumouchel Paper 
Co., 154 Conn. 343, 225 A.2d 797, 801. 
Frustrum terrre Ifr;)str�m tehriy/. A piece or parcel of 
land lying by itself. 
Frymith Ifraymi(Jl. In old English law, the affording 
harbor and entertainment to any one. 
Frythe. 
woods. 
lands. 
Sax. In old English law, a plain between 
An arm of the sea, or a strait between two 
F.Supp. Federal Supplement. A unit of the National 
Reporter System covering cases decided in the V.S. 
district courts and V.S. Court of International Trade. 
See Federal Supplement. 
F.T.C. Federal Trade Commission. 
Fuage, fouage, or feuage IfyUw�j/. Hearth money. A 
tax laid upon each fireplace or hearth. An imposition of 
a shilling for every hearth, levied by Edward III in the 
dukedom of Aquitaine. 1 BLComm. 324. 
Fuer IfyUw�r/. In old English law, flight. It was of two 
kinds: (1) Fuer in fait, or in facto, where a person did 
apparently and corporally flee; (2) fuer in ley, or in lege, 
when, being called in the county court, he did not 
appear, which legal interpretation makes flight. 
Fuero If we row I. In Spanish law, a law; a code. 
A general usage or custom of a province, having the 
force of law. Ir contra fuero, to violate a received 
custom. 
A grant of privileges and immunities. Conceder fue
ros, to grant exemptions. 
A charter granted to a city or town. Also designated 
as "cartas pueblas. " 
An act of donation made to an individual, a church, or 
convent, on certain conditions. 
A declaration of a magistrate, in relation to taxation, 
fines, etc. 
A charter granted by the sovereign, or those having 
authority from him, establishing the franchises of towns, 
cities, etc. 
A place where justice is administered. A peculiar 
forum, before which a party is amenable. 
The jurisdiction of a tribunal, which is entitled to take 
cognizance of a cause; as fuero ecclesiastico, fuero mili
tar. 
Fuero de castilla /fwerow <5e kastiy(ly)a/. The body of 
laws and customs which formerly governed the Cas
tilians. 
Fuero de correos y caminos /fwerow <5e koreyows iy 
kamiynows/. A special tribunal taking cognizance of all 
matters relating to the post office and roads. 
Fuero de guerra Ifwerow de gera/. A special tribunal 
taking cognizance of all matters in relation to persons 
serving in the army. 
FUGUE 
Fuero de marina If we row <5e mariyna/. A special tribu
nal taking cognizance of all matters relating to the navy 
and to the persons employed therein. 
Fuero municipal If we row muwniysiyp8.l/. The body of 
laws granted to a city or town for its government and 
the administration of justice. 
Fuero viejo Ifwerow v(i)yeyhow/. The title of a compila
tion of Spanish law, published about A.D. 992. 
Fugacia /fy�geysh(iy)�/. A chase. 
Fugam fecit IfyUwg�m fiys�t/. Lat. He has made 
flight; he fled. A clause inserted in an inquisition, in 
old English law, meaning that a person indicted for 
treason or felony had fled. The effect of this was to 
make the party forfeit his goods absolutely, and the 
profits of his lands until he had been pardoned or 
acquitted. 
Fugator Ify�geyt�r/. In old English law, a privilege to 
hunt. 
A driver. Fugatores carrucarum, drivers of wagons. 
Fugitation Ifytlwj�teysh�n/. When a criminal does not 
obey the citation to answer, the court pronounces sen
tence of fugitation against him, which induces a forfei
ture of goods and chattels to the crown. 
Fugitive. One who flees; used in criminal law with the 
implication of a flight, evasion, or escape from arrest, 
prosecution, or imprisonment. See Extradition; Fugitive 
from justice; Rendition. 
Fugitive Felon Act. A federal statute which makes it a 
felony to flee across the state line for the purpose of 
avoiding prosecution or confinement for a state felony or 
attempted felony, or to avoid giving testimony in a state 
felony case. 18 V.S.C.A. § 1073. See Extradition. 
Fugitive from justice. A person who, having committed 
a crime, flees from jurisdiction of court where crime was 
committed or departs from his usual place of abode and 
conceals himself within the district. A person who, 
having committed or been charged with crime in one 
state, has left its jurisdiction and is found within territo
ry of another state when it is sought to subject him to 
criminal process of former state. King v. Noe, 244 S.C. 
344, 137 S.E.2d 102, 103. See 18 V.S.C.A. §§ 1073, 1074. 
See also Extradition; Harbor; Rendition. 
Fugitive's goods. Vnder the old English law, where a 
man fled for felony, and escaped, his own goods were not 
forfeited as bona fugitivorum until it was found by 
proceedings of record (e.g. before the coroner in the case 
of death) that he fled for the felony. 
Fugitive slave law. Acts of Congress passed in 1793 
and 1850 (prior to abolition of slavery) providing for the 
surrender and deportation of slaves who escaped from 
their masters and fled into the territory of another 
state, generally a "free" state. 
Fugitivus Ifytlwj�tayv�s/. In the civil law, a fugitive; a 
runaway slave. 
Fugue Ifyuwg/. Period of memory loss during which 
subject functions almost as if normal, but concerning

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FUGUE 
which he has no subsequent recollection. See Automa
tism. 
Full. Abundantly provided, sufficient in quantity or 
degree, complete, entire, and detailed. Having no open 
space. Ample, perfect, mature, not wanting in any 
essential quality. 
Full age. The age of legal majority; legal age. 
Full answer. In pleading, a complete and meritorious 
answer, not wanting in any essential requisite. Frizell 
v. Northern Trust Co. of Chicago, Ill., 144 Kan. 481, 61 
P.2d 1344, 1345, 1346. 
Full blood. Relations of the "full blood," "whole blood," 
or "entire blood" are those derived not only from the 
same ancestor, but from the same couple of ancestors. 
Full cash value. For property tax purposes, that which 
is synonymous with market value; that estimate of 
value which is derived annually by the use of standard 
appraisal methods and techniques. Caldwell v. Depart
ment of Revenue, App., 122 Ariz. 45, 596 P.2d 45, 47. 
See Fair market value. 
Full copy. In equity practice, a complete and unabbrevi
ated transcript of a bill or other pleading, with all 
indorsements, and including a copy of all exhibits. 
Full court. In practice, a court en bane. A court duly 
organized with all the judges present. Court containing 
permissible complement of judges, as distinguished from 
a lesser quorum or panel. Textile Mills Securities Cor
poration v. Commissioner of Internal Revenue, 314 U.S. 
326, 62 S.Ct. 272, 277, 86 L.Ed. 249. See En bane. 
Full cousin. Son or daughter of one's uncle or aunt. 
Full covenants. See Covenant. 
Full coverage. Type of insurance protection which cov
ers all losses with no deductible amount and which 
covers to the full amount. 
Full crew laws. Laws which regulate the number of 
railroad employees who are required to man trains. 
Full defense. In common law pleading, the formula of 
defense in a plea, stated at length and without abbrevia
tion, thus: "And the said C.D. , by E.F., his attorney, 
comes and defends the force (or wrong) and injury when 
and where it shall behoove him, and the damages, and 
whatsoever else he ought to defend, and says," etc. 
Such technical pleading is no longer required under 
federal or state Rules of Civil Procedure. 
Full disclosure. Term used in variety of legal contexts, 
e.g. a fiduciary who participates in a transaction for his 
own benefit is required to fully reveal the details of 
such. In consumer law, the obligation to reveal all 
details of a transaction to the consumer; e.g. federal and 
state Truth-in-Lending Acts. Also, federal election laws 
require candidates to make full disclosure of the extent 
and source of their campaign contributions. See also 
Compu lsory disclosure; Disclosure. 
Full faith and credit clause. The clause of the U.S. 
Constitution (Art. IV, Sec. 1) which provides that the 
various states must recognize legislative acts, public 
672 
records, and judicial decisions of the other states within 
the United States. There are exceptions to this, a major 
one being that a state need not recognize a divorce 
decree of a state where neither spouse was a legal 
resident. Doctrine means that a state must accord the 
judgment of a court of another state the same credit 
that it is entitled to in the courts of that state. Morphet 
v. Morphet, 263 Or. 311, 502 P.2d 255, 260. A judgment 
or record shall have the same faith, credit, conclusive 
effect, and obligatory force in other states as it has by 
law or usage in the state from whence taken. Pennsyl
vania Fire Ins. Co. of Philadelphia v. Gold Issue Min. & 
Mill. Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610. See 
also Comity; Fauntleroy doctrine. 
Full hearing. Embraces not only the right to present 
evidence, but also a reasonable opportunity to know the 
claims of the opposing party, and to meet them. Mor
gan v. U. S., 304 U.S. 1, 58 S.Ct. 773, 776, 777, 82 L.Ed. 
1129. One in which ample opportunity is afforded to all 
parties to make, by evidence and argument, a showing 
fairly adequate to establish the propriety or impropriety 
from the standpoint of justice and law of the step asked 
to be taken. Akron, C. & Y. Ry. Co. v. U. S., 261 U.S. 
184, 43 S.Ct. 270, 67 L.Ed. 605. 
Full indorsement. See Indorsement. 
Full jurisdiction. Complete jurisdiction over a given 
subject-matter or class of actions without any exceptions 
or reservations. See Jurisdiction. 
Full life. Life in fact and in law. See In full life. 
Full name. The first, middle and surname of a person, 
or the first name, middle initial and surname. May also 
refer to name under which a person is known in the 
community. 
Full-paid stock. Stock on which no further payments 
can be demanded by the issuing company. 
Full powers. A document issued by the government of a 
nation empowering its diplomatic agent to conduct spe
cial business with a foreign government. 
Full proof. In the civil law, proof by two witnesses, or a 
public instrument. Evidence which satisfies the minds 
of the jury of the truth of the fact in dispute, to the 
entire exclusion of every reasonable doubt. See Prima 
facie; Proof. 
Full right. The union of a good title with actual posses
sion. 
Full settlement. Implies an adjustment of all pending 
matters, the mutual release of all prior obligations exist
ing between the parties. Hickox v. Hickox, Tex.Civ. 
App., 151 S.W.2d 913, 918. 
Full value. See Fair market value. 
Fully administered. The English equivalent of the Lat
in phrase "plene administravit':' being a plea by an 
executor or administrator that he has completely and 
legally disposed of all the assets of the estate, and has 
nothing left out of which a new claim could be satisfied.

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673 
Fumage Ifylim;}j/. In old English law, the same as 
fuage, or smoke farthings. 1 Bl.Comm. 324. See Fuage. 
Function. Derived from Latin "functus," the past parti
ciple of the verb "fungor" which means to perform, 
execute, administer. The nature and proper action of 
anything; activity appropriate to any business or profes
sion. Rosenblum v. Anglim, D.C.Cal., 43 F.Supp. 889, 
892. Of fice; duty; fulfillment of a definite end or set of 
ends by the correct adjustment of means. The occupa
tion of an office. By the performance of its duties, the 
officer is said to fill his function. The proper activities 
or duties of municipality. Bean v. City of Knoxville, 180 
Tenn. 448, 175 S.W.2d 954, 955. 
Functional depreciation. Such results from necessary 
replacement of equipment before it is worn out, by 
reason of invention and improved machinery, equip
ment, etc. which render more efficient and satisfactory 
service. See Functional obsolescence. 
Functional discount. Such as occurs where a supplier 
charges different prices to purchasers at different func
tional levels of distribution and where the higher price 
is charged to the purchaser at the level farther from the 
supplier in the chain of distribution, i.e., the retailer is 
charged more than the wholesaler. Such is permissible 
under the Robinson-Patman Act. FLM Collision Parts, 
Inc. v. Ford Motor Co., D.C.N.Y., 406 F.Supp. 224, 234. 
Functional disease. One which prevents, obstructs, or 
interferes with the due performance of its special func
tions by any organ of the body, without anatomical 
defect or abnormality in the organ itself. Distinguished 
from "organic" disease, which is due to some injury to, 
or lesion or malformation in, the organ in question. 
Functionality. Under trademark law, doctrine allowing 
protection to a shape, configuration or color scheme only 
if it is non-functional. Functionality exists if the design 
or color is so superior to available alternatives that 
competition would be hindered by giving the first user 
exclusive rights. 
Functional obsolescence. The need for replacement 
because a structure or equipment has become inefficient 
or out-moded because of improvements developed since 
its original construction or production. The loss of 
value due to inherent deficiencies within the property. 
Fisher-New Center Co. v. Michigan State Tax Commis
sion, 380 Mich. 340, 157 N.W.2d 271, 279. 
With respect to valuation of property for taxation, is 
loss of value brought about by the failure or inability to 
deliver full service, and includes any loss of value by 
reason of shortcomings or undesirable features con
tained within the property itself and is a loss of utility 
and failure to function due to inadequacies of design and 
deficiencies in the property. Piazza v. Town Assessor of 
Town of Porter, 16 A.D.2d 863, 228 N.Y.S.2d 397, 398. 
Functionary. A public officer or employee. An officer 
of a private corporation is also sometimes so called. 
Functus officio If:)l)kt;}s ;}fish(iy)ow/. Lat. A task per
formed. Board of School Trustees of Washington City 
Administrative Unit v. Benner, 222 N.C. 566, 24 S.E.2d 
FUND OR FUNDS 
259, 263. Having fulfilled the function, discharged the 
office, or accomplished the purpose, and therefore of no 
further force or authority. Applied to an officer whose 
term has expired and who has consequently no further 
official authority; and also to an instrument, power, 
agency, etc., which has fulfilled the purpose of its cre
ation, and is therefore of no further virtue or effect. 
Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 
So.2d 912, 919. 
Fund or funds. To capitalize with a view to the produc
tion of interest. Also, to put into the form of bonds, 
stocks, or other securities, bearing regular interest, and 
to provide or appropriate a fund or permanent revenue 
for the payment thereof. An asset or group of assets set 
aside for a specific purpose. To fund a debt is to pledge 
a specific fund to keep down the interest and reduce the 
principal. 
A generic term and all-embracing as compared with 
term "money," etc., which is specific. A sum of money 
or other liquid assets set apart for a specific purpose, or 
available for the payment of general debts, claims, or 
expenses. 
In the plural, this word has a variety of slightly 
different meanings, as follows: moneys and much more, 
such as notes, bills, checks, drafts, stocks and bonds, and 
in broader meaning may include property of every kind. 
State v. Finney, 141 Kan. 12, 40 P.2d 411, 421. Money 
in hand, assets, cash, money available for the payment 
of a debt, legacy, etc. Corporate stocks or government 
securities; in this sense usually spoken of as the 
"funds." Assets, securities, bonds, or revenue of a state 
or government appropriated for the discharge of its 
debts. Generally, working capital; sometimes used to 
refer to cash or to cash and marketable securities. 
See also Contingent fund; Current funds; Funded; 
Funding; General fund; Mutual fund; Revolving fund. 
Funded debt. As applied to states or municipal corpora
tions, a funded debt is one for the payment of which 
(interest and principal) some fund is appropriated, ei
ther specifically, or by provision made for future taxa
tion and the quasi pledging in advance of the public 
revenue. As applied to the financial management of 
corporations (and sometimes of estates in course of ad
ministration or properties under receivership) funding 
means the borrowing of a sufficient sum of money to 
discharge a variety of floating or unsecured debts, or 
debts evidenced by notes or secured by bonds but matur
ing within a short time, and creating a new debt in lieu 
thereof, secured by a general mortgage, a series of 
bonds, or an issue of stock, generally maturing at a more 
remote period, and often at a lower rate of interest. 
The new debt thus substituted for the pre-existing debts 
is called the "funded debt." This term is very seldom 
applied to the debts of a private individual; but when so 
used it must be understood as referring to a debt embod
ied in securities of a permanent character and to the 
payment of which certain property has been applied or 
pledged. See also Funded.

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FUND OR FUNDS 
Fund in court. As used in the rule providing for allow
ance of costs out of a "fund in court," this is a term of 
art and is applied where the plaintiffs' actions have 
created, preserved or increased property to the benefit of 
a class of which the plaintiff is not a member. Sarner v. 
Sarner, 38 N.J. 463, 185 A.2d 851, 853. 
Funding system. The practice of borrowing money to 
defray the expenses of government, and creating a 
"sinking fund," designed to keep down interest, and to 
effect the gradual reduction of the principal debt. See 
Sinking fund, below. 
General fund. This phrase, in many states, is a collec
tive designation of all the assets of the state which 
furnish the means for the support of government and for 
defraying the discretionary appropriations of the legisla
ture. Such are distinguished from assets of a special 
character, such as the school fund. See also General 
fund. 
General revenue fund. As used in connection with mu
nicipal finances, term refers to the fund out of which the 
usual, ordinary, running, and incidental expenses of a 
municipality are paid. 
No funds. This term denotes a lack of assets or money 
for a specific use. It is the return made by a bank to a 
check drawn upon it by a person who has no deposit to 
his credit there; also by an executor, trustee, etc., who 
has no assets for the specific purpose. 
Public funds. An untechnical name for (1) the revenue 
or money of a government, state, or municipal corpora
tion; (2) the bonds, stocks, or other securities of a 
national or state government. Money, warrants, or 
bonds, or other paper having a money value, and belong
ing to the state, or to any county, city, incorporated 
town or school district. The term applies to funds of 
every political subdivision of state wherein taxes are 
levied for public purposes. )Etna Casualty & Surety Co. 
v. Bramwell, D.C.Or., 12 F.2d 307, 309. 
Revolving fund. Usually, a renewable credit over a 
defined period. In simple parlance it relates usually to 
a situation where a banker or merchant extends credit 
for a certain amount which can be paid off from time to 
time and then credit is again given not to exceed the 
same amount. It may also mean a fund, which, when 
reduced, is replenished by new funds from specified 
sources. Term may refer to a revolving charge account. 
Sinking fund. The aggregate of sums of money (as 
those arising from particular taxes or sources of reve
nue) set apart and invested, usually at fixed intervals, 
for the extinguishment of the debt of a government or 
corporation, by the accumulation of interest. A fund 
arising from particular taxes, imposts, or duties, which 
is appropriated towards the payment of the interest due 
on a public loan and for the gradual payment of the 
principal. A fund created for extinguishing or paying a 
funded debt. 
Sinking fund tax. A tax raised to be applied to the 
payment of interest on, and principal of public loan. 
Fundamental error. See Error; Plain error rule. 
674 
Fundamental fairness doctrine. Due process of law as 
applied to judicial procedure. See Due process of law. 
Fundamental law. The law which determines the con
stitution of government in a nation or state, and pre
scribes and regulates the manner of its exercise. The 
organic law of a nation or state; its constitution. 
Fundamental rights. Those rights which have their 
source, and are explicitly or implicitly guaranteed, in 
the federal Constitution, Price v. Cohen, C.A.Pa., 715 
F.2d 87, 93, and state constitutions, Sidle v. Majors, 264 
Ind. 206, 341 N.E.2d 763. See e.g., Bill of rights. 
Challenged legislation that significantly burdens a 
"fundamental right" (examples include First Amend
ment rights, (privacy, and the right to travel interstate)) 
will be reviewed under a stricter standard of review. A 
law will be held violative of the due process clause if it is 
not closely tailored to promote a compelling or over
riding interest of government. A similar principle ap
plies under Equal Protection law. 
Fundamus /f:mdeym::ls/. We found. One of the words 
by which a corporation may be created in England. 1 
Bl.Com m. 473. 
Fundatio /f�ndeysh(iy)ow/. Lat. A founding or founda
tion. Particularly applied to the creation and endow
ment of corporations. As applied to eleemosynary cor
porations such as colleges and hospitals, it is said that 
,,(undatio incipiens" is the incorporation or grant of 
corporate powers, while "fundatio perficiens" is the en
dowment or grant or gift of funds or revenues. Dart
mouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 
L.Ed. 629. See also Foundation. 
Fundator If�ndeyt::lr/. A founder (q.v.). 
Funded. Said of a pension plan or other obligation 
when funds have been set aside for meeting the obli
gation when it becomes due. See also Fund (Funded 
debt). 
Funded pension plan. One containing sufficient funds 
as contributed by a corporation to meet current and 
future retirement benefit obligations. The Employee 
Retirement Income Security Act (ERISA) regulates 
funding of pension plans. 
Funding. Process of financing capital expenditures by 
issuing long term debt obligations or by converting short 
term obligations into long term obligations to finance 
current expenses. Allocation of money to investments 
or other type of reserve fund to meet future expenses for 
pension, welfare, or other benefits. ERISA specifies the 
requirements for funding of qualified retirement plans. 
See also Fund; Funded. 
Fundi patrimoniales /f�nday pretr::lm::lniyeyliyz/. 
Lands of inheritance. 
Fundi publici /f�nday p�bl::lsay/. Public lands. 
Fundus /f�nd::ls/. In the civil and old English law, land; 
land or ground generally; land, without considering its 
specific use; land, including buildings generally; a farm.

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675 
Funeral expenses. Money expended in procuring the 
interment, cremation, or other disposition of a corpse, 
including suitable monument, perpetual care of burial 
lot and entertainment of those participating in wake. 
Fungibiles res If;}njib;)liyz riyz/. Lat. In the civil law, 
fungibile things. 
Fungibles. Goods which are identical with others of the 
same nature, such as grain and oil. Mississippi State 
Tax Commission v. Columbia Gulf Transmission Co., 249 
Miss. 88, 161 So.2d 173, 178. With respect to goods or 
securities, those of which any unit is, by nature or usage 
of trade, the equivalent of any other like unit, V.C.C. 
§ 1-201(17); § 8-107(1); e.g., a bushel of wheat or other 
grain; common shares of the same company. 
A product which has no important characteristics that 
identify it as coming from a particular supplier. 
Movable goods which may be estimated and replaced 
according to weight, measure, and number. Things be
longing to a class, which do not have to be dealt with in 
specie. 
Where a thing which is the subject of an obligation 
(which one man is bound to deliver to another) must be 
delivered in specie, the thing is -not fungible; that very 
individual thing, and not another thing of the same or 
another class, in lieu of it, must be delivered. Where 
the subject of the obligation is a thing of a given class, 
the thing is said to be fungible; i.e., the delivery of any 
object which answers to the generic description will 
satisfy the terms of the obligation. 
Fur If�r/. Lat. A thief. One who stole secretly or 
without force or weapons, as opposed to robber. 
Furandi animus Ify;)rrenday ren;)m;)s/. Lat. An inten
tion of stealing. 
Furca If�rk;)/. In old English law, a fork. A gallows or 
gibbet. 
Furca et flagellum If�rk;) et fl;)jebm/. Gallows and 
whip. Tenure ad furcam et flagellum, tenure by gallows 
and whip. The meanest of servile tenures, where the 
bondman was at the disposal of his lord for life and 
limb. 
Furca et fossa If�rk;) et fos;) I. Gallows and pit, or pit 
and gallows. A term used in ancient charters to signify 
a jurisdiction of punishing thieves, viz., men by hanging, 
women by drowning. 
Furian law Ifyliriy;)n 16/. See Lex Furia Caninia. 
Furigeldum Ifyur;)jeld;)m1 . A fine or mulct paid for 
theft. 
Furiosi nulla voluntas est Ify;)riyowsay n�l;) v;)l�ntres 
est!. A madman has no will. 
Furlingus If;}rliI)g;}s/. A furlong, or a furrow one-eighth 
part of a mile long. 
Furlong. A measure of length, being forty poles, or 
one-eighth of a mile. 
Furlough If�rlow/. A leave of absence; e.g. a temporary 
leave of absence to one in the armed service of the 
FURTHERANCE 
country; an emplo yee placed in a temporary status 
without duties and pay because of lack of work or funds 
or for other non-disciplinary reasons. 5 V.S.C.A. 
§ 7511(aX5). Also the document granting leave of ab
sence. 
Fur manifestus If�r mren;)fest;)s/. In the civil law, a 
manifest thief. A thief who is taken in the very act of 
stealing. 
Furnage. See Fornagium; Four. 
Furnish. To supply, provide, or equip, for accomplish
ment of a particular purpose. As used in the liquor 
laws, "furnish" means to provide in any way, and in
cludes giving as well as selling. As used in the Con
trolled Substances Act, means to provide or supply and 
connotes a transfer of possession. Walker v. State, 
Ala.Cr.App., 428 So.2d 139, 141. 
Furniture. This term includes that which furnishes, or 
with which anything is furnished or supplied; whatever 
must be supplied to a house, a room, place of business, 
or public building or the like, to make it habitable, 
convenient, or agreeable; goods, vessels, utensils, and 
other appendages necessary or convenient for house
keeping; whatever is added to the interior of a house or 
apartment, for use or convenience. 
Furor brevis Ifyur;}r briyv;}s/. A sudden transport of 
passion. 
Furor contrahi matrimonium non sinit, quia consen
su opus est Ifylir;)r k;}ntreyhay mretr;}mown(i)y;)m non 
sin;}t, kway;) k;)nsenshuw OWP;)s est/. Insanity prevents 
marriage from being contracted, because consent is 
needed. 1 Bl.Comm. 439. 
Furst and fondung. In old English law, time to advise 
or take counsel. 
Furta If�rt;}/. A right derived from the king as supreme 
lord of a state to try, condemn, and execute thieves and 
felons within certain bounds or districts of an honour, 
manor, etc. 
Further. Not a word of strict legal or technical import, 
and may be used to introduce negation or qualification 
of some precedent matter, but generally when used as 
an adverb it is word of comparison, and means "addi
tional," and is equivalent to "moreover, or furthermore, 
something beyond what has been said or likewise, or 
also." Wider, or fuller, or something new. Occasionally 
it may mean any, future, or other. 
Further advance. A second or subsequent loan of mon
ey to a mortgagor by a mortgagee, either upon the same 
security as the original loan was advanced upon, or an 
additional security. Equity considers the arrears of 
interest on a mortgage security converted into principal, 
by agreement between the parties, as a further advance. 
See also Future advance clause; Future advances. 
Furtherance. Act of furthering, helping forward, pro
motion, advancement, or progress. Maryland Casualty 
Co. v. Smith, Tex.Civ.App., 40 S.W.2d 913, 914. 
Further assurance, covenant for. See Covenant.

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FURTHER HEARING 
Further hearing, or further proceedings. Hearing at 
another time; additional hearing; new trial; or other 
proceedings directed by appellate court. Not a n ew 
proceeding but rather a continuation of an existing 
proceeding. 
Further instructions. Additional instructions given to 
jury after they have once been instructed and have 
retired. Such may be requested by jury during course of 
deliberations when, for example, the jury is uncertain as 
to the applicable law. 
Further maintenance of action, plea to. A plea 
grounded upon some fact or facts which have arisen 
since the commencement of the suit, and which the 
defendant puts forward for the purpose of showing that 
the plaintiff should not further maintain his action. 
Such plea is obsolete under federal and state Rules of 
Civil Procedure. 
Furtive If:}rt;}v I. Stealthily; by secret or stealth. 
Furtum /f:}rt;}m/. Lat. Theft. The fraudulent appro
priation to one's self of the property of another, with an 
intention to commit theft without the consent of the 
owner. The thing which has been stolen. 
Furtum conceptum If:}rt;}m k;}nsept;}m/. In Roman 
law, the theft which was disclosed where, upon search
ing any one in the presence of witnesses in due form, the 
thing stolen was discovered in his possession. 
Furtum est contrectatio rei alienre fraudulenta, cum 
animo furandi, invito illo domino cujus res illa fuer
at If:}rd;}m est kontrekteysh(iy)ow riyay reliyiyniy 
frodyuwlent;}, k;}m ren;}mow f(y);}rrenday, ;}nvitytow How 
dom;}now kyuwj;}s riyz H;} fyuw;}r;}t/. Theft is the fraud
ulent handling of another's property, with an intention 
of stealing, against the will of the proprietor, whose 
property it was. 
Furtum manifestum If:}rt;}m mren;}fest;}m/. Open theft. 
Theft where a thief is caught with the property in his 
possession. 
Furtum non est ubi initium habet detentionis per 
dominium rei If:}rt;}m non est yuwbay ;}nish(iy);}m 
heyb;}t d;}tenshiyown;}s p;}r d;}min(i)y;}m riyay I. There is 
no theft where the foundation of the detention is based 
upon ownership of the thing. 
Furtum oblatum /f:}rt;}m ;}bleyd;}m/. In the civil law, 
offered theft. Oblatum furtum dicitur cum res furtiva 
ab aliquo tibi oblata sit, eaque apud te concepta sit. 
Theft is called "oblatum " when a thing stolen is offered 
to you by any one, and found upon you. 
Fuse plug levees. Under Mississippi Flood Control Act 
lower points for possible flood spillways were designated 
"fuse plug levees." U. S. v. Sponenbarger, Ark., 308 
U.S. 256, 60 S.Ct. 225, 227, 84 L.Ed. 230. 
Fust. See Fuz. 
Fustigatio If;}st;}geysh(iy)ow/. In old English law, a 
beating with stick or clubs; one of the ancient kinds of 
punishment of malefactors. 
676 
Fustis /f:}st;}sl. In old English law, a staff, used in 
making livery of seisin. 
A baton, club, or cudgel. 
Futhwite, or fithwite. A fine for fighting or breaking 
the peace. 
Future acquired property. See After acquired property. 
Future advance clause. A clause in an open-end mort
gage or deed of trust which allows the borrower to 
borrow additional sums at a future time, secured under 
the same instrument and by the same real property 
security. 
Future advances. Money lent after a security interest 
has attached and secured by the original security agree
ment. U.C.C. § 9- 204(5). See also Further advance. 
Future damages. See Damages. 
Future earnings. Earnings which, if it had not been for 
injury, could have been made in future, but which were 
lost as result of injury. Nowlin v. Kansas City Public 
Service Co., Mo.App., 58 S.W.2d 324. 
Future estate. See Estate. 
Future goods. Goods which are not both existing and 
identified. A purported present sale of such goods oper
ates as a contract to sell. U.C.C. § 2-105(2). 
Future interests. Interests in real or personal property, 
a gift or trust, or other things in which the privilege of 
possession or of en joyment is in the future and not 
present. Commissioner of Internal Revenue v. Wells, 
C.C.A.6, 132 F.2d 405, 407. An interest that will come 
into being at some future point in time. It is distin
guished from a present interest which is already in 
existence. Assume, for example, that D transfers securi
ties to a newly created trust. Under the terms of the 
trust instrument, income from the securities is to be 
paid each year to W for her life, with the securities 
passing to S upon W's death. W has a present interest 
in the trust since she is currently entitled to receive the 
income from the securities. S has a future interest 
since he must wait for W's death to benefit from the 
trust. 
Future performance. In contracts, execution which is 
due in the future; deferred performance. 
Futures contract. A present right to receive at a future 
date a specific quantity of a given commodity for a fixed 
price. Clayton Brokerage Co. of St. Louis, Inc. v. Mouer, 
Tex.Civ.App., 520 S.W.2d 802, 804. Commodity futures 
contracts are commitments to buy or sell commodities at 
a specified time and place in the future. The price is 
established when the contract is made in open auction 
on a futures exchange. Only a small percentage of 
futures trading actually leads to delivery of a commodi
ty, for a contract may change hands or be liquidated 
before the delivery date. Participants fall into two 
categories: commercial hedgers who use futures to mini
mize price risks inherent in their marketing operations 
and speculators who, employing venture capital, seek 
profits through price changes. Both purchase contracts 
with only a small margin payment. Futures prices are

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677 
an indication of the direction of prices based on current 
market conditions. Such exchanges and transactions 
are regulated by the federal Commodity Futures Trad
ing Commission. See also Option. 
Currency futures contract. Futures contracts that allow 
one to purchase or sell a specified currency at a specified 
price on a specified settlement date. 
Futures market. Commodity exchanges where futures 
contracts are traded (e.g., Chicago Board of Trade). 
Futures trading. The buying and selling of futures 
contracts, usually on commodity exchanges. See Futures 
contract. 
Future value (or terminai value). The value at some 
future point in time of a present amount of money, or a 
series of payments, evaluated at the appropriate interest 
(growth) rate. 
Futuri If(y);}tyUray/. Lat. Those who are to be. Part of 
the commencement of old deeds. "Sciant prresentes et 
futuri, quod ego talis, dedi et concessi, " etc. (Let all men 
now living and to come know that I, A. B., have, etc.). 
Fuz, or fust Ifast/. A Celtic word, meaning a wood or 
forest. 
FYRDWITE 
F.W.C. Free Woman of Color. Up to the time of Civil 
War, term applied to all persons not of the white race, 
including Indians. 
Fyhtwite Ifaytw;}t/. One of the fines incurred for homi
cide. 
Fynderinga. (Sax.) An offense or trespass for which 
the fine or compensation was reserved to the king's 
pleasure. Its nature is not known. 
Fyrd /fard/. Sax. In Anglo-Saxon law, the military 
array or land force of the whole country. Contribution 
to the fyrd was one of the imposts forming the trinoda 
necessitas. (Also spelled "ferd" and "fird.") 
Fyrdfare Ifardfer/. A summoning forth to join a mili
tary expedition; a summons to join the fyrd or army. 
Fyrdsocne or fyrdsoken IfardsQwk;}n/. Exemption 
from military duty; exemption from service in the fyrd. 
Fyrdwite /f:irdw;}t/. A fine imposed for neglecting to 
join the fyrd when summoned. Also a fine imposed for 
murder committed in the army; also an acquittance of 
such fine.

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G
GAAP. See Generally accepted accounting principles.
GAAS. See Generally accepted auditing standards.
Gabel Ig�bell. An excise; a tax on movables; a rent,
custom, or service. A tax, impost, or excise duty, espe
cially in continental Europe. Formerly, in France, such
term referred specifically to the tax on salt, but also
applied to taxes on other industrial products.
Land gabel. See Land gabel.
Gabella Ig�bel�/. The Law Latin form of "gabel," (q.v.).
Also, in Teutonic and early English history, the peasant
ry constituting a village or hamlet; the holdings of such
a group of freemen and serfs, or of either. The original
significance of the word seems to be in its indication of a
small rent-paying community, the rents being rendered
in kind or in labor.
Gablatores I grebl�t6riyzl . Persons who paid gabel, rent,
or tribute.
Gablum Igrebbm/. A rent; a tax.
Gabulus denariorum Igreby�l�s d�neriy6r�m/. Rent
paid in money.
Gadsden Purchase. A term commonly applied to the
territory acquired by the United States from Mexico by
treaty of December 30, 1853, known as the Gadsden
Treaty.
Gafol Igrev�lI. The same word as "gabel" or "gavel."
Rent; tax; interest of money.
Gage, v. In old English law, to pawn or pledge; to give
as security for a payment or performance; to wage or
wager.
Gage, n. In old English law, a pawn or pledge; some
thing deposited as security for the performance of some
act or the payment of money, and to be forfeited on
failure or non-performance.
A mortgage is a dead-gage or pledge; for, whatsoever
Gag order. An unruly defendant at trial may constitu
tionally be bound and gagged to prevent further inter
ruptions in the trial. Illinois v. Allen, 397 U.S. 337, 90
S.Ct. 1057, 25 L.Ed.2d 353. Term may also refer to an
order by the court, in a trial with a great deal of
notoriety, directed to attorneys and witnesses, to not
discuss the case with reporters-such order being felt
necessary to assure the defendant of a fair trial. Term
also refers to orders of the court directed to reporters to
not report court proceedings, or certain aspects thereof.
Such latter type orders have been struck down by the
Supreme Court as being an unconstitutional obstruction
of freedom of the press. See Nebraska Press Ass'n. v.
Stuart, 427 U.S. 539, 96 S.Ct. 2791.
Gain. Profits; winnings; increment of value. Differ
ence between receipts and expenditures; pecuniary
gain. Difference between cost and sale price. Apprecia
tion in value or worth of securities or property.
Excess of revenues over expenses from a specific
transaction. Frequently used in the context of describ
ing a transaction not part of a firm's typical, day-to-day
operations.
"Gain derived from capital" is a gain, profit, or some
thing of exchangeable value proceeding from the proper
ty, severed from the capital however invested, and re
ceived or drawn by claimant for his separate use, bene
fit, and disposal. Commissioner of Internal Revenue v.
Simmons Gin Co., C.C.A.1O, 43 F.2d 327, 328.
See also Acquire; Acquisition; Capital (Capital gains);
Income; Profit; Realized gain or loss; Return.
Gainage. At common law, the gain or profit of tilled or
planted land, raised by cultivating it; and the draught,
plow, and furniture for carrying on the work of tillage
by the baser kind of sokemen or villeins.
Gainery. At common law, tillage, or the profit arising
from it, or from the beasts employed therein.
profit it yields, it redeems not itself, unless the whole Gainful. Profitable, advantageous, or lucrative.
amount secured is paid at the appointed time.
Gainful employment or occupation. In general, any
In French law, the contract of pledge or pawn; also calling, occupation, profession or work which one may or
the article pawned. is able to profitably pursue. Within disability clause of
Gager de deliverance Igeyj�r d� d�liv�r�ns/. In old policy, term means ordinary employment of particular
English law, when he who has distrained, being sued, insured, or such other employment, if any, as insured
has not delivered the cattle distrained, then he shall not may fairly be expected to follow. Mutual Life Ins. Co. of
only avow the distress, but gager deliverance, i.e., put in New York v. Barron, 198 Ga. 1, 30 S.E.2d 879, 882.
surety or pledge that he will deliver them. Gainor. In old English law, a sokeman; one who occu-
Gager del ley Igeyj�r del ley/. Wager of law (q.v.). pied or cultivated arable land.
678

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679 
Gaius, institutes of /inst;}tyllwts ;}v gey;}s/. See Insti
tutes. 
Gale. In English law, the payment of rent, tax, duty, or 
annuity. The right is a license or interest in the nature 
of real estate, conditional on the due payment of rent 
and observance of the obligations imposed on the galee. 
It follows the ordinary rules as to the devolution and 
conveyance of real estate. The galee pays the crown a 
rent known as a "galeage rent," "royalty," or some 
similar name, proportionate to the quantity of minerals 
taken from the mine or quarry. 
' 
Galea /greliy;}/. In old records, a piratical vessel; a 
galley. 
Gallagher agreements. See Mary Carter agreement. 
Gallon. A liquid measure containing 231 cubic inches, 
or four quarts; the standard gallon of the Vnited States. 
The imperial gallon contains about 277, and the ale 
gallon 282, cubic inches. The metric equivalent is 3.785 
liters. 
Gallows. A scaffold; a beam laid over either one or two 
posts, from which persons sentenced to capital punish
ment are hanged. 
Gamalis /g;}meybs/. A child born in lawful wedlock; 
also one born to betrothed but unmarried parents. 
Gambler. One who follows or practices games of chance 
or skill, with the expectation and purpose of thereby 
winning money or other property. See Gambling. 
Gambling. Making a bet. Such occurs when there is a 
chance for profit if a player is skillful and lucky. State, 
ex reI. Com'r of State Police v. One Helix Game, 122 
Mich.App. 148, 333 N.W.2d 24, 28. A play for value 
against an uncertain event in hope of gaining something 
of value. Beamel Amusement Corp. v. Police Dept. of 
Suffolk County, 54 Misc.2d 946, 283 N.Y.S.2d 760, 761. 
It involves, not only chance, but a hope of gaining 
something beyond the amount played. Gambling con
sists of a consideration, an element of chance, and a 
reward. In re Gaming Devices Seized at American 
Legion Post No. 109, 197 Pa.Super. 10, 176 A.2d 115, 
122. The elements of gambling are payment of a price 
for a chance to win a prize. Boies v. Bartell, 82 Ariz. 
217, 310 P.2d 834, 837. Gambling is regulated by state 
and federal statutes. See e.g. 18 V.S.C.A. §§ 1081 et seq. 
See also Bet; Bookmaking; Game of chance; Gaming; 
Lottery; Wager. 
Gambling device. Tangible means, instrument, contri
vance, or thing with or by which money may be lost or 
won, as distinguished from the game itself. Harris v. 
State, 207 Tenn. 538, 341 S.W.2d 576, 578. A machine, 
implement, or contrivance of any 'kind for the playing of 
an unlawful game of chance or hazard. See Slot ma
chine. 
Gambling place. Any place, room, building, vehicle; 
vessel, tent or location which is used for any of the 
following: Making 'and settling bets; receiving, holding, 
recording or forwarding bets or offers to bet; conducting 
lotteries or policy games; playing games of chance for 
GANGIATORI 
money or other property; or playing gambling devices. 
See 18 V.S.C.A. § 1081. 
Gambling policy. In life insurance, one issued to a 
person, as beneficiary, who has no pecuniary interest in 
the life insured. Otherwise called a "wager policy." 
Such policies are generally illegal or not otherwise writ
ten by insurance companies because of the absence of an 
insurable interest. 
Game. Wild birds and beasts. The word includes all 
game birds, game fowl, and game animals. State ex reI. 
Sofeico v. Hefferman, 41 N.M. 219, 67 P.2d 240, 246. A 
sport, pastime or contest. A contrivance which has for 
its object to furnish sport, recreation, or amusement. 
Ex parte Williams, 127 CaI.App. 424, 16 P.2d 172, 173. 
See Gaming. 
Game-keeper. One who has the care of keeping and 
preserving the game in a reserve, forest, or the like. 
Game laws. . Federal and state laws passed for the 
preservation of wildlife, usually forbidding the killing or 
capturing of specified game either entirely or during 
certain seasons, or by certain described means, or by 
restricting the number and type of game that may be 
killed or trapped in season. See 16 V.S.C.A. § 661 et 
seq., 18 V.S.C.A. § 41 et seq. See also Lacey Act; Open 
season. 
Game of chance. A game in which chance rather than 
skill determines the outcome. Kansas City v. Caresio, 
Mo., 447 S.W.2d 535, 537. See also Lottery. 
Gaming. The practice or act of gambling. An agree
ment between two or more persons to play together at a 
game of chance for a stake or wager which is to become 
the property of the winner, and to which all contribute. 
The elements of gaming are the presence of price or 
consideration, chance, and prize or reward. Automatic 
Music & Vending Corp. v. Liquor Control Com'n, 426 
Mich. 452, 396 N. W.2d 204, 206. See Gambling. 
Gaming contracts. See Wager. 
Gaming device. See Gambling device. 
Gaming house. See Gambling place. 
Gananciales / ganansiyaleys/. A Spanish term, used as 
either a noun or adjective, and applied to property 
acquired during marriage. Discussed in Sanchez v. 
Bowers, C.C.A.N.Y., 70 F.2d 715, 716. See Ganancial 
property. 
Ganancial property / g;}nrensh;}l prop;}rdiy / . In Spanish 
law, a species of community in property enjoyed by 
husband and wife, the property being divisible between 
them equally on a dissolution of the marriage. See 
Community property. 
Ganancias /ganansiy;}s/. In Spanish law, gains or prof
its. 
Gang. Any company of persons who go about together 
or act in concert; in modern use, mainly for criminal 
purposes. 
Gangiatori /grenj(iy);}toray/. Officers in ancient times 
whose business it was to examine weights and measures.

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GANGSTER 
Gangster. A member of a gang of criminals, thieves, or 
the like. 
Ganser syndrome /g{mz;}r sindrowm/gren(t)s;}ro/. A set
ting in which questions are given nonsensical answers 
from which a hidden relevancy may be inferred. This is 
observed in prisoners who wish to gain leniency by 
simulating mental clouding. 
Gantelope / grentlowp/ gontl;}t/. (Pronounced "gaunt
lett".) A military punishment, in which the criminal 
running between the ranks receives a lash from each 
man. This was called "running the gauntlett." 
GAO. General Accounting Office. 
Gaol /jey(;})lI. A now obsolete term (of English origin) 
for a prison for temporary confinement; a jail; a place 
for the confinement of offenders against the law. As 
distinguished from "prison," it is said to be a place for 
temporary or provisional confinement, or for the punish
ment of the lighter offenses and misdemeanors. See 
also Jail. 
Gaol delivery. In old criminal law, the delivery or 
clearing of a gaol of the prisoners confined therein, by 
trying them. Also, the clearing of a gaol by the escape 
of the prisoners. Such term is of English origin. 
Gaoler /jeyl;}r/. A variant of "jailer" (q.v.). 
Gaol liberties, gaol limits /jey(;})l lib;}rtiyz/"lim;}ts/. A 
district around a gaol, defined by limits, within which 
prisoners are allowed to go at large on giving security to 
return. It is considered a part of the gaol. 
Garandia, or garantia /g;}rrendiy;}/g;}rrensh(iy);}/. A 
warranty. 
Garantie /garontiy/. In French law, this word corre
sponds to warranty or covenants for title in English law. 
In the case of a sale this garantie extends to two things: 
(1) Peaceful possession of the thing sold; and (2) absence 
of undisclosed defects (defauts caches). 
Garathinx /grer;}Oi1Jks/. In old Lombardic law, a gift; a 
free or absolute gift; a gift of the whole of a thing. 
Garauntor /grer;}nt;}r/. L. Fr. In old English law, a 
warrantor of land; a vouchee; one bound by a warranty 
to defend the title and seisin of his alienee, or, on 
default thereof, and on eviction of the tenant, to give 
him other lands of equal value. 
Garba /garb;}/. In old English law, a bundle or sheaf. 
Blada in garbis, corn or grain in sheaves. 
Garba sagittarum / garb;} srej;}ter;}m/. A sheaf of ar
rows, containing twenty-four. Otherwise called "schaffa 
sagittarum. " 
Garble. - In English statutes, to sort or cull out the good 
from the bad in spices, drugs, etc. 
Garbler of spices. An ancient officer in the city of 
London, who might enter into any shop, warehouse, etc., 
to view and search drugs and spices, and garble and 
make clean the same, or see that it be done. 
Gard, or garde. L. Fr. Wardship; care; custody; also 
the ward of a city. 
680 
Gardein / gard;}n/. A keeper; a guardian. 
Garden. A small piece of land, appropriated to the 
cultivation of herbs, fruits, flowers, or vegetables. 
Gardia /gard(i)y;}/. L. Fr. Custody; wardship. 
Gardianus /gardiyeyn;}s/. In old English law, a guardi
an, defender, or protector. In feudal law, gardio. A 
warden. Gardianus eccles ire, a churchwarden. 
Garene /g;}riyn/. L. Fr. A warren; a privileged place 
for keeping animals. 
Garnestura /garn;}st(y)ur;}/. In old English law, vict
uals, arms, and other implements of war, necessary for 
the defense of a town or castle. 
Garnish, n. In English law, money paid by a prisoner to 
his fellow-prisoners on his entrance into prison. 
Garnish, v. To warn or summon. To issue process of 
garnishment against a person. 
Garnishee. One garnished; a person against whom pro
cess of garnishment is issued; one who has money or 
property in his possession belonging to a defendant, or 
who owes the defendant a debt, which money, property, 
or debt is attached. A person who owes a debt to a 
judgment debtor, or a person other than the judgment 
debtor who has property in his possession or custody in 
which a judgment debtor has an interest. 
Garnishment. A proceeding whereby a plaintiff credi
tor, i.e., garnishor, seeks to subject to his or her claim 
the property or money of a third party, i.e., garnishee, 
owed by such party to defendant debtor, i.e., principal 
defendant. Van Maanen v. Van Maanen, Iowa, 360 
N.W.2d 758, 761. Satisfaction of an indebtedness out of 
property or credits of debtor in possession of, or owing 
by, a third person. Frank F. Fasi Supply Co. v. Wigwam 
Inv. Co., D.C.Hawaii, 308 F.Supp. 59, 61. An ancillary 
remedy in aid of execution to obtain payment of a 
judgment. First Nat. Bank in Chester v. Conner, Mo. 
App., 485 S.W.2d 667, 671. It is an incident to or an 
auxiliary of judgment rendered in principal action, and 
is resorted to as a means of obtaining satisfaction of 
judgment by reaching credits or property of judgment 
debtor. This proceeding is called "trustee process" in 
certain states. 
Due process requirements of Fourteenth Amendment, 
U.S.Const., requires notice and an opportunity to be 
heard before pre-judgment garnishment of wages. Snia
dach v. Family Finance Corp. of Bay View et aI., 395 
U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. Garnishment is 
regulated by both state and federal (e.g. Consumer Cred
it Protection Act) statutes. 
See also Attachment execution; Lien of garnishment; 
Trustee (Trustee process). 
Garnishor. Creditor who initiates garnishment for the 
purpose of reaching property or credits of a debtor held 
or owed by a third person who is the garnishee. 
Garnistura /garn;}st(y)ur;}/. In old English law, garni
ture; whatever is necessary for the fortification of a city 
or camp, or for the ornament of a thing.

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681 
Garroting. A method of inflicting the death penalty on 
convicted criminals practiced in Spain, Portugal, and 
some Spanish-American countries, consisting in strangu
lation by means of an iron collar which is mechanically 
tightened about the neck of the sufferer, sometimes with 
the variation that a sharpened screw is made to advance 
from the back of the apparatus and pierce the base of 
the brain. Also, any form of strangling resorted to to 
overcome resistance or induce unconsciousness. 
Garsumme /gars�m/. In old English law, an amercia
ment or fine. 
Garter. The mark of the highest order of English 
knighthood, ranking next after the nobility. This mili
tary order of knighthood is said to have been first 
instituted by Richard I, at the siege of Acre, where he 
caused twenty-six knights who firmly stood by him to 
wear thongs of blue leather about their legs. See gener
ally Knight. 
Garth. In English law, a yard; a little close or home
stead in the north of England. A dam or wear in a 
river, for the catching of fish. 
Gasoline tax. Excise imposed on sale of gasoline by 
both Federal and state governments. 
Gas sold. Term used in leases of natural gas wells to 
describe gas which is actually sold to others and it does 
not necessarily include all gas used in production. 
Southland Royalty Co. v. Pan American Petro Corp., 
Tex., 378 S.W.2d 50. 
Gastaldus /g�st�Hd�s/. A temporary governor of the 
country. A bailiff or steward. 
Gastine /g�tiyn/. L. Fr. Waste or uncultivated ground. 
Gas used. Term used in leases for natural gas to de
scribe,quantity of gas employed or consumed though not 
necessarily sold while operating a well. Southland Roy
alty Co. v. Pan American Petro Corp., Tex., 378 S.W.2d 
50. 
GATT. General Agreement on Tariffs and Trade. A 
multi-lateral international agreement that requires for
eign products to be accorded no less favorable treatment 
under the laws than that accorded domestic products. 
Gaudies / g6diyz/. A term used in the English universi
ties to denote double commons. 
Gaugeator /g�jiyeyt�r/. A gauger. 
Gauger. In England, a surveying officer under the cus
toms, excise, and internal revenue laws, appointed to 
examine all tuns, pipes, hogsheads, barrels and tierces of 
wine, oil, and other liquids, and to give them a mark of 
allowance, as containing lawful measure. There are 
also private gaugers in large seaport towns, who are 
licensed by government to perform the same duties. 
Gaugetum / g�jiyt�m/. A gauge or gauging; a measure 
of the contents of any vessel. 
Gault, Application of. Landmark Supreme Court case 
guaranteeing to a defendant in a juvenile proceeding the 
right of confrontation, the privilege against self incrimi
nation, prior notice of the complaint, and the right to 
GEBUR 
counsel. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 
18 L.Ed.2d 527. 
Gavel. In English law, custom; tribute; toll; yearly 
rent; payment of revenue; of which there were ancient
ly several sorts; as gavel-corn, gavel-malt, oat-gavel, 
gavel-fodder, etc. 
Gavelbred. Rent reserved in bread, corn, or provision; 
rent payable in kind. 
Gavelcester. A certain measure of rent-ale. 
Gavelet /grev�l�t/. An obsolete English writ. An an
cient and special kind of cessavit, used in Kent and 
London for the recovery of rent. 
Gavelgeld / grev�lgEHd/. That which yields annual profit 
or toll. The tribute or toll itself. 
Gavelherte. A service of plowing performed by a cus
tomary tenant. 
Gaveling men. Tenants who paid a reserved rent, be
sides some customary duties to be done by them. 
Gavelkind. A species of socage tenure common in Kent, 
in England, where the lands descend to all the sons, or 
heirs of the nearest degree, together; ma'Y be disposed of 
by will; do not escheat for felony; may be aliened by the 
heir at the age of fifteen; and dower and curtesy is 
given of half the land. 
Gavena /g�vel�/. See Gabella. 
Gavel-man. A tenant liable to the payment of gavel or 
tribute. 
Gavelmed / grev�lmiyd/. A customary service of mowing 
meadow-land or cutting grass (consuetudo falcandi). 
Gavelrep / grev�lriyp/. Bedreap or bidreap; the duty of 
reaping at the bid or command of the lord. 
Gavelwerk / grev�lw�rk/. A customary service, either 
manuopera, by the person ()f the tenant, or carropera, by 
his carts or carriages. 
Gazette / g�zet! . The official publication of the English 
government, also called the "London Gazette." It is 
evidence of acts of state, and of everything done by the 
Queen in her political capacity. Orders of adjUdication 
in bankruptcy are required to be published therein; and 
the production of a copy of the "Gazette," containing a 
copy of the order of adjudication, is evidence of the fact, 
and of the date thereof. 
See also Official Gazette (Patent Office). 
Gdn. Equivalent to guardian. 
Gebocced. An Anglo-Saxon term, meaning "conveyed." 
Gebocian. In Saxon law, to convey; to transfer boc land 
(book-land or land held by charter). The grantor was 
said to gebocian the alienee. 
Gebrauchsmuster /g�brawksmust�r/. A patent, issued 
in accordance with law of Germany. Permutit Co. v. 
Graver Corporation, D.C.Ill., 37 F.2d 385, 390. 
Gebur /g�bur/. (Sax.) A boor. His services varied in 
different places-to work for his lord two or more days a

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GEBUR 
week; to pay gafols in money, barley, etc.; to pay hearth 
money, etc. He was a tenant with a house and a yard 
land or virgate or two oxen. 
Geburscript I g�burskriptl . In old English law, neigh
borhood or adjoining district. 
Geburus Ig�bur�s/. In old English law, a country neigh
bor; an inhabitant of the same geburscript, or village. 
Geld. In Saxon law, money or tribute. A mulct, com
pensation, value, price. Angeld was the single value of 
a thing; twigeld, double value, etc. So, were geld was the 
value of a man slain; orfgeld, that of a beast. A land 
tax of so much per hide or carucate. The compensation 
for a crime. 
Geldabilis Igeldeyb�l�sl. In old English law, taxable; 
geldable. 
Geldable I geld�b�lI. Liable to pay geld; liable to be 
taxed. 
Gelt. As a verb, an alternative form of the past tense of 
"geld," commonly "gelded." As a noun, used incorrectly 
for geld (q. v.). 
Gemma Ijem�/\ Lat. In the civil law, a gem; a precious 
stone. Gems were distinguished by their transparency; 
such as emeralds, chrysolites, amethysts. 
Gemot Ig�m6wt/. In Saxon law, a meeting or moot; a 
convention; a public assemblage. These were of several 
sorts, such as the witena-gemot, or meeting of the wise 
men; the folc-gemot, or general assembly of the people; 
the shire-gemot, or county court; the burg-gemot, or 
borough court; the hundred-gemot, or hundred court; 
the hali-gemot, or court-baron; the hal-mote, a conven
tion of citizens in their public hall; the holy-mote, or 
holy court; the swein-gemote, or forest court; the ward
mote, or ward court. 
Genealogy Ijiyniy61�jiy/. The summary history or table 
of a family, showing how the persons there named are 
connected together. 
Genearch Ijeniyark/. The head of a family. 
Geneath Ig�niy()l. In Saxon law, a villein, or agri
cultural tenant (villanus villicus); a hind or farmer 
(firmarius rusticus). 
Gener Ijen�r/. Lat. In the civil law, a son-in-law; a 
daughter's husband. 
General. From Latin word genus. It relates to the 
whole kind, class, or order. Leuthold v. Brandjord, 100 
Mont. 96, 47 P.2d 41, 45. Pertaining to or designating 
the genus or class, as distinguished from that which 
characterizes the species or individual; universal, not 
particularized, as opposed to special; principal or cen
tral, as opposed to local; open or available to all, as 
opposed to select; obtaining commonly, or recognized 
universally, as opposed to particular; universal or un
bounded, as opposed to limited; comprehending the 
whole or directed to the whole, as distinguished from 
anything applying to or designed for a portion only. 
Extensive or common to many. 
682 
A statute is "general" when it operates uniformly on 
all persons and things of a class and such classification 
is natural, reasonable, and appropriate to purpose 
sought to be accomplished. Atchinson v. Erwin, W.Va., 
302 S.E.2d 78, 83. 
As a noun, the word is the title of a principal officer in 
the army, usually one who commands a whole army, 
division, corps, or brigade. In the United States army, 
the rank of "general" is one of the highest, next to the 
commander in chief (i.e. President), and is only occasion
ally created. The officers next in rank are lieutenant 
general, major general, and brigadier general. 
As to general Acceptance; Administration of estates; 
Agent; Appearance; Assignment; Average; Benefit; 
Challenge; Character; Charge; Covenant; Creditor; Cus
toms; Damages; Demurrer; Denial; Deposit; Devise; 
Election; Finding; Franchise; Fund or Funds; Gaol deliv
ery; Guaranty; Guardian; Imparlance; Insurance; Intent; 
Issue; Legacy; Letter of credit; Malice; Meeting; Moni
tion; Mortgage; Occupant; Orders; Owner; Partnership; 
Power; Power of appointment; Property; Replication; Re
straint of trade; Retainer; Return; Rule; Session; Ship; 
Statute; Tail; Tenancy; Term; Traverse; Usage; Verdict; 
Warrant; and Warranty, see those titles. 
General Accounting Office. The General Accounting 
Office of the federal government has the following basic 
purposes: assist the Congress, its committees, and its 
members to carry out their legislative and oversight 
responsibilities, consistent with its role as an indepen
dent nonpolitical agency in the legislative branch; carry 
out legal, accounting, auditing, and claims settlement 
functions with respect to Federal Government programs 
and operations as assigned by the Congress; and make 
recommendations designed to make Government opera
tions more efficient and effective. The GAO is under 
the control and direction of the Comptroller General of 
the United States and the Deputy Comptroller General 
of the United States, appointed by the President with 
the advice and consent of the Senate for a term of 15 
years. 
General agency business. One engaged in such gener
al agency business is one not engaged as agent for single 
firm or person, but holding himself out to public as 
being engaged in business of being agent. Comer v. 
State Tax Commission of New Mexico, 41 N.M. 403, 69 
P.2d 936, 939. 
General appearance. Consent to the jurisdiction of the 
court and a waiver of all jurisdictional defects except the 
competency of the court. Johnson v. Zoning Bd. of 
Appeals of Town of Branford, 166 Conn. 102, 347 A.2d 
53, 56. An appearance by defendant in an action that 
has the effect of waiving any threshold defenses of lack 
of territorial authority to adjudicate or lack of notice. 
See Appearance. 
General assembly. Title of legislative body in many 
states. See also Legislature. 
The policy making body of the United Nations. It is 
composed of from one to five delegates from each mem-

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683 
ber nation, although each member nation has but one 
vote. 
The highest "judicatory" of the Presbyterian church, 
representing in one body all of the particular churches 
of the denomination. Trustees of Pencader Presby
terian Church in Pencader Hundred v. Gibson, 26 
Del.Ch. 375, 22 A.2d 782, 788. 
General assignment for benefit of creditors. A trans
fer of legal and equitable title to all debtor's property to 
trustee, with authority to liquidate debtor's affairs and 
distribute proceeds equitably to creditors. Central Fibre 
Products Co. v. Hardin, C.C.A.Tex., 82 F.2d 692, 694. 
See also Assignment (Assignment for benefit of creditors). 
General average. See Average; General average contri
bution. 
General average bond. Type of bond required by mas
ter of ship as security for general average contribution 
before master delivers the cargo. 
General average contribution. Such arises from an 
ancient maritime doctrine making all participants in a 
maritime venture ratably responsible for losses incurred 
for their common good. Atlantic Richfield Co. v. U.S., 
C.A.Tex., 640 F.2d 759, 764. Contribution by all parties 
in sea venture to make good loss sustained by one of 
their number on account of sacrifices voluntarily made 
of part of ship or cargo to save residue, or for extraordi
nary expenses necessarily incurred by one or more of 
parties for general benefit of all interests embarked in 
general enterprise. S. C. Loveland Co. v. U. S., D.C.Pa., 
207 F.Supp. 450, 451. See also Average (General aver
age). 
General average loss. Loss at sea commonly sustained 
when cargo is thrown overboard to save ship. Such loss 
is generally shared by shipowner and owners of cargo. 
See General average contribution; Jettison. 
General average statement. Statement of account and 
admission on shipowner's part as to amount due cargo 
owner. 
General benefits. Such benefits in a condemnation case 
are those produced by the improvement which a proper
ty owner may enjoy in the future in common with all 
other property owners in the area, which benefits may 
not be considered to reduce the compensation due. 
State, by Com'r of Transp. v. Interpace Corp., 130 N.J. 
Super. 322, 327 A.2d 225, 229. 
General bequest. One not segregated or withdrawn 
from estate under terms of will but to be paid in money 
or property as latter directs. Gift payable out of general 
assets of estate, not amounting to a bequest of particular 
thing or money. Feder v. Weissman, 81 Nev. 668, 409 
P.2d 251, 252. 
General building scheme. One under which owner of 
large tract of land divides it into building lots, to be sold 
to different persons for separate occupancy by deeds 
which contain uniform covenants restricting the use 
which the several grantees may make of their premises. 
Besch v. Hyman, 221 App.Div. 455, 223 N.Y.S. 231, 233. 
GENERAL EXCEPTION 
General circulation. That of a general newspaper only, 
as distinguished from one of a special or limited charac
ter. It is not determined by number of subscribers but 
by the diversity of subscribers and general nature of 
subject matter. 
General contractor. One who contracts for the con
struction of an entire building or project, rather than for 
a portion of the work. The general contractor hires 
subcontractors (e.g. plumbing, electrical, etc.), coor
dinates all work, and is responsible for payment to 
subcontractors. Also called "prime" contractor. 
General Court. The name given to the legislature of 
Massachusetts and of New Hampshire in colonial times, 
and subsequently by their constitutions; so called be
cause the colonial legislature of Massachusetts grew out 
of the general court or meeting of the Massachusetts 
Company. 
General court martial. See Court-Martial. 
General credit. The character of a witness as one 
generally worthy of credit. A distinction is sometimes 
made between this and "particular credit," which may 
be affected by proof of particular facts relating to the 
particular action. See also General reputation. 
General debt. Debt of a governmental unit legally 
payable from general revenues and backed by the full 
faith and credit of the governmental unit. 
General denial. See General plea. 
Generale /jen;}reyliy/. The usual commons in a reli
gious house, distinguished from pietantire, which on 
extraordinary occasions were allowed beyond the com
mons. 
Generale dictum generaliter est interpretandum 
/jen;}reyliy dikt;}m jen;}reyl;}t;}r est int�rpr;}trend;}m/. A 
general expression is to be interpreted generally. 
General election. An election held in the state at large. 
A regularly recurring election to select officers to serve 
after the expiration of the full terms of their predeces
sors. See also Election. 
Generale nihil certum implicat /jen;}reyliy nay(h);}l 
s;}rt;}m impl;}kcet/. A general expression implies noth
ing certain. A general recital in a deed has not the 
effect of an estoppel. 
General estate. Customarily, the entire estate held by a 
person in his individual capacity. 
Generale tantum valet in generalibus, quantum sin
gulare in singulis /jen;)reyliy trent;}m veyl;}t in 
jen;}reyl;}b;}s, kwont;}m siugy;}leriy in siUgy;}l;}s/. What is 
general is of as much force among general things as 
what is particular is among things particular. 
General exception. General exception is an objection to 
a pleading, or any part thereof, for want of substance, 
while a special exception is an objection to the form in 
which a cause of action is stated. Exception taken at 
trial of case in which the exceptor does not specify the 
grounds or limitations of his objection. See also Demur
rer.

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GENERAL EXECUTION 
General execution. A writ commanding an officer to 
satisfy a judgment out of any personal property of the 
defendant. If authorizing him to levy only on certain 
specified property, the writ is sometimes called a "spe
cial" execution. 
General executor. One whose power is not limited 
either territorially or as to the duration or subject of his 
trust. One who is to have charge of the whole estate, 
wherever found, and administer it to a final settlement. 
General fee conditional. A grant to a person and heirs 
of his or her body. Blume v. Pearcy, 204 S.C. 409, 29 
S.E.2d 673, 674. 
General field. Several distinct lots or pieces of land 
inclosed and fenced in as one common field. 
General fund. Assets and liabilities of a nonprofit enti
ty not specifically earmarked for other purposes. The 
primary operating fund of a governmental unit not 
designated for any specific purpose. See also Fund. 
Generalia prrecedunt, specialia sequuntur /jen�reyliy� 
priysiyd�nt speshiyeyliy� s�kw�nt�r/. Things general 
precede, things special follow. 
Generalia specialibus non derogant /jen�reyliy� 
speshiyeyl�b�s non der�g�nt/. General words do not 
derogate from special. 
Generalia sunt prreponenda singularibus /jen�reyliy� 
s;)nt priy�nend� siIJgy�ler�b�s/. General things are to 
precede particular things. 
Generalia verba sunt generaliter intelligenda 
/jen�reyliy� v�rb� s;)nt jen�reybt�r intel�jend�/. Gener
al words are to be understood generally, or in a general 
sense. 
Generalibus specialia derogant /jen�reyl�b�s spes(h)
iyeyl(i)y� der�g�ntl. Special things take from generals. 
General improvement. One which exists where pri
mary purpose and effect of improvement is to benefit 
public generally, though it may incidentally benefit 
property owners in particular locality. 
General Inclosure Act. The English statute, 41 Geo. 
III, c. 109, which consolidated a number of regulations 
as to the inclosure of common fields and waste lands. 
General indorsement. See Indorsement. 
General intangibles. Any personal property (including 
things in action) other than goods, accounts, contract 
rights, chattel paper, documents, instruments, and mon
ey. V.C.C. § 9-106. 
General interest. In regard to admissibility of hearsay 
evidence, a distinction is sometimes made between "pub
lic" and "general" interest, the term "public" being 
strictly applied to that which concerns every member of 
the state, and the term "general" being confined to a 
lesser, though still a considerable, portion of the commu
nity. 
Generalis clausula non porrigitur ad ea qure antea 
specialiter sunt comprehensa /jen�reyl�s kI6zy�l� non 
p�rij�t�r red iy� kwiy rentiy� speshiyeybt�r s�nt 
684 
kompr�hens�/. A general clause does not extend to 
those things which are previously provided for specially. 
Therefore, where a deed at the first contains special 
words, and afterwards concludes in general words, both 
words, as well general as special, shall stand. 
Generalis regula generaliter est intelligenda 
/jen�reyl�s regy�l� jen�reyl�t�r est intel�jend�/. A gen
eral rule is to be understood generally. 
General jurisdiction. Such as extends to all controver
sies that may be brought before a court within the legal 
bounds of rights and remedies; as opposed to special or 
limited jurisdiction, which covers only a particular class 
of cases, or cases where the amount in controversy is 
below a prescribed sum, or which is subject to specific 
exceptions. The terms "general" and "special," applied 
to jurisdiction, indicate the difference between a legal 
authority extending to the whole of a particular subject 
and one limited to a part; and, when applied to the 
terms of court, the occasion upon which these powers 
can be respectively exercised. A court of "general juris
diction"· is one which takes cognizance of all cases, civil 
or criminal, of a particular nature. Bomar v. State ex 
reI. Stewart, 201 Tenn. 480, 300 S.W.2d 885, 887. See 
also Jurisdiction. 
General Land Office. Formerly an office of the V nited 
States government, being a division of the Department 
of the Interior, having charge of all executive action 
relating to the public lands, including their survey, sale 
or other disposition, and patenting; originally constitut
ed by Act of Congress in 1812. The General Land Office 
and the V.S. Grazing Service were consolidated into the 
Bureau of Land Management under the Department of 
the Interior by 1946 Reorganization Plan No. 3, § 403. 
See Bureau of Land Management. 
General law. A law that affects the community at 
large. A general law as contradistinguished from one 
that is special or local, is a law that embraces a class of 
subjects or places, and does not omit any subject or place 
naturally belonging to such class. A law, framed in 
general terms, restricted to no locality, and operating 
equally upon all of a group of objects, which, having 
regard to the purposes of the legislation, are distin
guished by characteristics sufficiently marked and im
portant to make them a class by themselves, is not a 
special or local law, but a general law. A law that 
relates to a subject of a general nature, or that affects 
all people of state, or all of a particular class. Albuquer
que Metropolitan Arroyo Flood Control Authority v. 
Swinburne, 74 N.M. 487, 394 P.2d 998, 1000. Compare 
Private law; Special law. 
General ledger. An accounting term used to describe 
the book or other instrument which summarizes an 
entity's financial accounts. The general ledger is the 
source from which the entity's trial balance and finan
cial statements are prepared. The general ledger con
tains a separate account for each of the assets, liabili
ties, revenues and expenses of the entity. 
General lien. A general lien is a right to detain a 
chattel, etc., until payment be made, not only of any

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685 
debt due in respect of the particular chattel, but of any 
balance that may be due on general account in the same 
line of business. 
Generally Accepted Accounting Principles (GAAP). 
The conventions, rules and procedures necessary to de
fine accepted accounting practices at a particular time; 
includes both broad and specific guidelines. The source 
of such principles is the Financial Accounting Standards 
Board. 
Generally Accepted Auditing Standards (GAAS). 
The standards, as opposed to particular procedures, 
promulgated by the AICPA which concern the auditor's 
professional qualities and the judgment exercised by 
him in the performance of his examination and in his 
report. 
General manager. One having general direction and 
control of corporation's affairs, and who may do every
thing which corporation could do in transaction of its 
business. Continental Supply Co. v. Forrest E. Gilmore 
Co. of Texas, Tex.Civ.App., 55 S.W.2d 622. A manager 
for all general purposes of the corporation. 
General partner. One of two or more persons who 
associate to carry on business as co-owners for profit and 
who are personally liable for all debts of the partner
ship. Uniform Partnership Act, § 6(1), (15). To be 
contrasted with "limited" partner who is liable only to 
the extent of his or her contributed capital. May also be 
the managing partner of a limited partnership who is 
responsible for operations of partnership. See Partner. 
General plea. Type of pleading such as a general denial 
which controverts all of the averments of the preceding 
pleading (e.g. of the complaint). See Fed.R. Civil P. 8(b). 
General power of appointment. One exercisable in 
favor of any person the donee may select. Johnstone v. 
Commissioner of Internal Revenue, C.C.A.9, 76 F.2d 55, 
57. 
General publication. In copyright law, "general publi
cation" is such disclosure, communication, circulation, 
exhibition or distribution of subject of copyright ten
dered or given to one or more members of general public 
as implies abandonment of right of common-law copy
right or its dedication to public, whereas "limited publi
cation" is one which communicates knowledge of its 
contents under conditions expressly or impliedly pre
cluding its dedication to public. Read v. Turner, 239 
C.A.2d 504, 48 Cal.Rptr. 919, 923. 
General reputation. In evidence, testimony concerning 
the repute in which a person is held in the community; 
e.g. peaceable, law abiding citizen. 
Criminal defendant may show his good character by 
proof of his "real character", that is, those peculiar 
qualities which individual is supposed to possess and 
which distinguish him from others and denote what a 
person really is, not what he is reputed to be, or by proof 
of his "general reputation" which is based on speech of 
his associates and is sum of opinions generally enter
tained concerning what is reputed or understood to be 
the estimate of person's character in community in 
GENERATION-SKIPPING TRANSFER TAX 
which he moves or resides. State v. Hobbs, Iowa, 172 
N.W.2d 268, 271. 
See Character; Reputation. 
General revenue. Fund from which all lawful obli
gations of a state or municipality are payable in the 
absence of a provision calling for payment from a special 
fund (e.g., special fund for the benefit of the courts). 
General Services Administration. Federal agency cre
ated to manage government property and records. The 
GSA supervises construction and operation of buildings, 
procurement and distribution of supplies, disposal of 
surplus property, traffic and communications facilities, 
stockpiling of strategic and critical materials, and 
management of automatic data processing resources pro
gram. 
General taxes. Those imposed by and paid to state 
which return taxpayer no special benefit other than the 
protection afforded him and his property by govern
ment, and promotion of programs which have for their 
benefit the welfare of all. A tax, imposed solely or 
primarily for purpose of raising revenue and merely 
granting person taxed right to conduct business or pro
fession. 
General welfare. General term used to describe the 
government's concern for the health, peace, morals, and 
safety of its citizens. 
General welfare clause. The provision of the U.S. 
Constitution (Art. I, Sec. 8, Cl. 1) which declares that 
Congress may tax and pay debts in order to provide for 
the "general welfare of the United States." 
General words. Such words of a descriptive character 
as are used in conveyances in order to convey, not only 
the specific property described but also all kinds of 
easements, privileges, and appurtenances which may 
possibly belong to the property conveyed. Such words 
are in general unnecessary; but are properly used when 
there are any easements or privileges reputed to belong 
to the property not legally appurtenant to it. 
Generatio /jen�reysh(iy)ow/. The issue or offspring of a 
mother-monastery. 
Generation. May mean either a degree of removal in 
computing descents, or a single succession of living 
beings in natural descent. Average span of time be
tween birth of parents and that of their offspring. 
Group of people born and living contemporaneously. 
Generation-skipping transfer. Transfer of assets more 
than a single generation removed from the transferor 
(e.g., from grandfather to grandchild). See Generation
skipping transfer tax; Generation-skipping trust. 
Generation-skipping transfer tax. The 1986 Tax Re
form Act imposes a generation-skipping transfer tax on 
(1) transfers under trusts (or similar arrangements) hav
ing beneficiaries in more than one generation below that 
of the transferor, and (2) direct transfers to beneficiaries 
more than one generation below that of the transferor. 
The tax is imposed (with certain exemptions) on the 
occurrence of any one of three taxable events: a taxable

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GENERATION-SKIPPING TRANSFER TAX 
termination, a taxable distribution (including distribu
tions of income) and a direct skip, that is, an outright 
transfer to or for the benefit of a person at least two 
generations below that of the transferor. I.R.C. §§ 2601 
et seq. See Generation-skipping trust. 
Generation-skipping trust. A trust established to 
transfer assets more than a single generation removed 
from the transferor. See Deemed transferor; Generation
skipping transfer tax. 
Generic. Relating to or characteristic of a whole group 
or class; general, as opposed to specific or special. 
Generic mark or term. Within the purview of trade
mark law, this term means a lack of distinctiveness 
necessary for name or mark to be given federal trade
mark law protection. Hallmark Cards, Inc. v. Hallmark 
Dodge, Inc., W.D.Mo., 634 F.Supp. 990, 997. Generic 
marks are marks which include words which embrace 
entire class of products or services, not all of which 
necessarily emanate from same source. Team Central 
Inc. v. Xerox Corp., D.C.Minn., 606 F.Supp. 1408, 1413. 
A "generic term" is one which is commonly used as 
name or description of a kind of goods and it is generally 
accepted that a generic term is incapable of achieving 
trade name protection. Discount Muffler Shop, Inc. v. 
Meineke Realty Corp., Inc., D.C.Ohio, 535 F.Supp. 439, 
444. 
Generic name. The "established name" of a drug; its 
chemical name, a common name, or an official name 
used in an official compendium. Abbott Laboratories v. 
Celebrezze, C.A.Del., 352 F.2d 286, 287. See also Name. 
Generic drug laws. Laws which permit pharmacists to 
substitute generic drugs for brand name drugs under 
specified conditions. Most states have passed such laws. 
The purpose of these laws ostensibly is to make avail
able to consumers less expensive generic drugs in lieu of 
more expensive brand-name drugs. Pharmaceutical 
Soc. of State of N.Y., Inc. v. Lefkowitz, D.C.N.Y., 454 
F.Supp. 1175. 
Generosa Ijen�r6ws�/. Gentlewoman. 
Generosi filius Ijen�r6wsay filiy�sl. The son of a gen
tleman. Generally abbreviated "gen. fil." 
Generosus Ijen�r6ws�sl. Lat. Gentleman; a gentle
man. 
Genetic fingerprinting. See DNA identification. 
Geneva Convention. An international agreement for 
the conduct of nations at war drafted in 1864 and 
ratified by nearly every country. It provides, among 
other things, that a belligerent shall give proper care to 
enemy sick or wounded, that the Red Cross shall be the 
emblem of the sanitary service; and that hospitals and 
ambulances with their personnel shall be respected and 
protected. Revisions have brought the convention into 
accord with newer scientific discoveries and methods of 
warfare. 
Geniculum Ij�niky�bm/. A degree of consanguinity. 
686 
Genoese lottery Ijenowiyz 16t�riy/. Also known as the 
"numerical" lottery. As distinguished from the "class" 
lottery (see the title Dutch lottery), it is a scheme by 
which, out of 90 consecutive numbers, five are to be 
selected or drawn by lot. The players have fixed on 
certain numbers, wagering that one, two, or more of 
them will be drawn among the five, or that they will 
appear in a certain order. 
Gens Ij€mz/. Lat. In Roman law, a tribe or clan; a 
group of families, connected by common descent and 
bearing the same name, being all free-born and of free 
ancestors, and in possession of full civic rights. 
Gens de justice Izh6nz d� justiysl. In French law, 
officers of a court. 
Gentes Ijentiyz/. Lat. People. Contra omnes gentes, 
against all people. Words used in the clause of warran
ty in old deed. 
Gentiles Ijentayliyz/. In Roman law, the members of a 
gens or common tribe. 
Gentleman. In its English origin, this term formerly 
referred to a man of noble or gentle birth; one belong
ing to the landed gentry; a man of independent means; 
all above the rank of Yeomen. 
Gentlemen's agreement. Generally an unsigned and 
unenforceable agreement made between parties who ex
pect its performance because of good faith. 
Gentrification. A term used in land development to 
describe a trend whereby previously underdeveloped ar
eas become revitalized as persons of relative affluence 
invest in homes and begin to upgrade the neighborhood 
economically. Business Ass'n of Univ. City v. Landrieu, 
C.A.Pa., 660 F.2d 867, 874 n. 8. 
Genuine. As applied to notes, bonds, and other written 
instruments, this term means that they are truly what 
they purport to be, and that they are free of forgery or 
counterfeiting. U.C.C. § 1-201(18). 
Genuine issue. Genuine issues which will preclude en
try of summary judgment are issues which can be sus
tained by substantial evidence. Riss & Co. v. Associa
tion of Am. Railroads, D.C.D.C., 190 F.Supp. 10, 17. As 
used in rule that burden of proving absence of material 
fact so that no "genuine issue" is left for jury determina
tion is on movant for summary judgment, means a real 
as opposed to a false or colorable issue. Byrd v. Leach, 
Fla.App., 226 So.2d 866, 868. A "genuine issue of fact" 
exists, precluding rendition of summary judgment, 
where there is the slightest doubt as to the facts, so long 
as the fact in doubt is a material one which has legal 
probative force as to a controlling issue. Peer v. MFA 
Milling Co., Mo.App., 578 S.W.2d 291, 292. See Fed.R. 
Civil P. 56(c). 
Genus Ijiyn�sl. In the civil law, a general class or 
division, comprising several species. In toto jure generi 
per speciem derogatur, et illud potissimum habetur quod 
ad speciem directum est, throughout the law, the species 
takes from the .genus, and that is most particularly 
regarded which refers to the species.

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A person's lineage, or direct descendants. 
In logic, it is the first of the universal ideas, and is 
when the idea is so common that it extends to other 
ideas which are also universal; e.g., incorporeal heredit
ament is genus with respect to a rent, which is species. 
Geodetic survey system. A system of nationwide sur
vey marks (bench) at longitude and latitude points, 
created by the federal government. A scientific method 
of integrating all real estate within the continental 
United States into one unified system. 
Geographic market. In antitrust law, that part of a 
relevant market that identifies the physical area in 
which a firm might have market power. It is the 
territorial area in which businessmen effectively com
pete. Telex Corp. v. International Business Machines 
Corp., D.C.OkI., 367 F.Supp. 258, 336. 
George-noble. An English gold coin, value 6s. 8d. 
Gerechtsbode Ig;m�ktsbowd(a)/. In old New York law, a 
court messenger or constable. 
Gerefa Igariyfa/. In Saxon law, greve, reve, or reeve; a 
ministerial officer of high antiquity in England; answer
ing to the grave or graf (grafio) of the early continental 
nations. The term was applied to various grades of 
officers, from the scyre-gerefa, shire-grefe, or shire-reve, 
who had charge of the county (and, whose title and 
office have been perpetuated in the modern "sheriff'), 
down to the tungerefa, or town-reeve, and lower. 
Gerens Ijehranz/. Bearing. Gerens datum, bearing 
date. 
German. Whole, full, or own, in respect to relationship 
or descent. Brothers-german, as opposed to half-broth
ers, are those who have both the same father and 
mother. Cousins-german are "first" cousins; that is, 
children of brothers or sisters. 
Germane Ijarmeyn/. In close relationship, appropriate, 
relative, pertinent. Relevant to or closely allied. State 
ex reI. Riley v. District Court of Second Judicial Dist. in 
and for Silver Bow County, 103 Mont. 576, 64 P.2d 115, 
119. 
Germanus Ijarmeynas/. Lat. Descended of the same 
stock, or from the same couple of ancestors; of the 
whole or full blood. 
Gerontocomi Ijehrantakowmay/. In the civil law, offi
cers appointed to manage hospitals for the aged poor. 
Gerontocomium Ijehrantakowmiyam/. In the civil law, 
an institution or hospital for taking care of the old. 
Gerrymander Ijehriymrendar I gehr ° I. A name given to 
the process of dividing a state or other territory into the 
authorized civil or political divisions, but with such a 
geographical arrangement as to accomplish an ulterior 
or unlawful purpose, as, for instance, to secure a majori
ty for a given political party in districts where the result 
would be otherwise if they were divided according to 
obvious natural lines. 
GEWRITE 
Gersumarius Ijarsameriyas/. In old English law, fina
ble; liable to be amerced at the discretion of the lord of 
a manor. 
Gersume Igersam/. In old English law, expense; re
ward; compensation; wealth. It is also used for a fine 
or compensation for an offense. 
Gest. In Saxon law, a guest. A name given to a strang
er on the second night of his entertainment in another's 
house. Twanight gest. 
Gestation. The time during which a woman carries a 
fetus in her womb, from conception to birth. But, as 
used in medical authorities, this phrase does not mean 
the actual number of days from conception to birth. 
Dazey v. Dazey, 50 CaI.App.2d 15, 122 P.2d 308, 309. 
Gestio Ijest(i)yow/. In the civil law, behavior or con
duct. Management or transaction. Negotiorum gestio, 
the doing of another's business; an interference in the 
affairs of another in his absence, from benevolence or 
friendship, and without authority. 
Gestio pro hrerede Ijest(i)yow prow hariydiy/. Behavior 
as heir. This expression was used in the Roman law, 
and adopted in the civil law and Scotch law, to denote 
conduct on the part of a person appointed heir to a 
deceased person, or otherwise entitled to succeed as heir, 
which indicates an intention to enter upon the inheri
tance, and to hold himself out as heir to creditors of the 
deceased; as by receiving the rents due to the deceased, 
or by taking possession of his title-deeds, etc. Such acts 
will render the heir liable to the debts of his ancestor. 
Gestor Ijestor/. In the civil law, one who acts for 
another, or transacts another's business. 
Gestu et fama Ijest(y)uw et feyma/. An ancient and 
obsolete writ resorted to when a person's good behavior 
was impeached. 
Gestum Ijestam/. Lat. In Roman law, a deed or act; a 
thing done. Some writers affected to make a distinction 
between "gestum" and "factum." But the best authori
ties pronounced this subtile and indefensible. 
Gesture. Motion of the body calculated to express a 
thought or used for emphasis. An act used as a sign of 
feeling, such as a gesture of friendship. 
Get. To receive; gain possession of; obtain; to prevail or 
have influence on. 
Under Hebraic law, evidence of the granting of a 
divorce. A bill of divorce among the Jews which is 
drawn in the Aramaic language, uniformly worded and 
carefully written by a proper scribe, and after proper 
ceremonies and questionings by the rabbi, especially as 
to whether both parties agree to the divorce, the hus
band hands to the wife in the presence of ten witnesses. 
Gewineda Igawinada/. In Saxon law, the ancient con
vention of the people to decide a cause. 
Gewitnessa Igawitnasa/. In Saxon and old English law, 
the giving of evidence. 
Gewrite Igaraytiy/. In Saxon law, deeds or charters; 
writings.

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Gibbet. A gallows; the post on which malefactors were 
hanged, or on which their bodies were exposed. It 
differed from a common gallows, in that it consisted of 
one perpendicular post, from the top of which proceeded 
one arm, except when it was a double gibbet, which was 
formed in the shape of the Roman capital T. 
Gibbet law. Lynch law; in particular a custom ancient
ly prevailing in the parish of Halifax, England, by which 
the free burghers held a summary trial of any one 
accused of petit larceny, and, if they found him guilty, 
ordered him to be decapitated. 
Gideon v. Wainwright. Landmark Supreme Court deci
sion which held that provision guaranteeing a criminal 
defendant the assistance of counsel under the Sixth 
Amendment, U.S.Const., is binding on the states in state 
proceedings through the due process provision of the 
Fourteenth Amendment. 372 U.S. 335, 83 S.Ct. 792, 9 
L.Ed.2d 799. See also Counsel, right to; Effective assist
ance of counsel. 
Gift. A voluntary transfer of property to another made 
gratuitously and without consideration. Bradley v. 
Bradley, Tex.Civ.App., 540 S.W.2d 504, 511. Essential 
requisites of "gift" are capacity of donor, intention of 
donor to make gift, completed delivery to or for donee, 
and acceptance of gift by donee. 
In tax law, a payment is a gift if it is made without 
conditions, from detached and disinterested generosity, 
out of affection, respect, charity or like impulses, and 
not from the constraining force of any moral or legal 
duty or from the incentive of anticipated benefits of an 
economic nature. 
An absolute gift, or gift inter vivos, as distinguished 
from a testamentary gift, or one made in contemplation 
of death, is one by which the donee becomes in the 
lifetime of the donor the absolute owner of the thing 
given, whereas a donatio mortis causa leaves the whole 
title in the donor, unless the event occurs (the death of 
the donor) which is to divest him. 
The only important difference between a "gift" and a 
"voluntary trust" is that in the case of a gift the thing 
itself passes to the donee, while in the case of a trust the 
actual, beneficial, or equitable title passes to the cestui 
que trust, and the legal title is transferred to a third 
person, or retained by the person creating it. In re 
Alberts' Estate, 38 Cal.App.2d 42, 100 P.2d 538, 540. 
In old English law, a conveyance of lands in tail; a 
conveyance of an estate tail in which the operative 
words are "I give," or "I have given." 2 Bl.Comm. 316. 
See also Anatomical gift; Annual exclusion; Endowment; 
Symbolic delivery; Taxable gift; Vested gift. 
Antenuptial gift. Voluntary transfer of property before 
a marriage from one spouse to another, commonly made 
in exchange for a waiver of rights to property after the 
marriage. 
Class gift. See Class gift. 
Gift in contemplation of death. See Gift causa mortis; 
Gifts within three years of death. 
688 
Split gift. See Gift splitting election. 
Testamentary gift. Voluntary transfer of property to 
take effect upon the death of the donor. 
Gift causa mortis / gift koz:l mOrt:ls/. A gift of personal 
property made in expectation of donor's death and on 
condition that donor die as anticipated. Antos v. Bocek, 
9 Ariz.App. 368, 452 P.2d 533, 534. A gift causa mortis 
is effected only if the following conditions are met: the 
donor must be stricken with some disorder which makes 
death imminent, death of donor must ensue as a result 
of the disorder existing at time the gift was made 
without any intervening perfect recovery, gift must have 
been made to take effect only in event of donor's death 
by his existing disorder, and there must have been an 
actual delivery of the subject of the donation to the 
donee. In re Vardalos' Estate, 24 Ill.App.3d 520, 320 
N.E.2d 568, 571. See also Gifts within three years of 
death. 
Gift deed. A deed for a nominal sum or for love and 
affection. Bertelsen v. Bertelson, 49 Cal.App.2d 479, 
122 P.2d 130, 133. 
Gift enterprise. A scheme for the division or distribu
tion of articles to be determined by chance amongst 
those who have taken shares in the scheme. A sporting 
artifice by which, for example, a merchant or tradesman 
sells his wares for their market value, but, by way of 
inducement, gives to such purchaser a ticket which 
entitles him to a chance to win certain prizes to be 
determined after the manner of a lottery. 
Gift inter vivos /gift int:lr vayvows/. Gifts between the 
living, which are perfected and become absolute during 
lifetime of donor and donee. Neal v. Neal, 194 Ark. 226, 
106 S.W.2d 595, 600. An immediate, voluntary, and 
gratuitous transfer of personalty by one to another. 
Tilton v. Mullen, 101 Ohio App. 129, 137 N.E.2d 125, 
128, 130. The essentials of an inter vivos gift are: (1) 
donative intention; (2) delivery to donee; in the case of 
a chose in action not capable of delivery, the donor must 
during his lifetime strip himself of all dominion over the 
thing taken; (3) acceptance by donee. In re Posey's 
Estate, 89 N.J. Super. 293, 214 A.2d 713, 719. 
Gift in trust. Gift made in such manner that the donee 
acquires legal title for the beneficial enjoyment of the 
cestui que trust. 
Gift over. A gift to one for life, and from and after his 
death to another. Broadly, any transfer of property to 
take effect after the termination of an intermediate 
estate or estates such as a life estate, e.g. to A for life, 
remainder to B. 
Gift splitting election. A special election for Federal 
gift tax purposes whereby husband and wife can treat a 
gift by one of them to a third party as being made 
one-half by each. The major advantage of the election is 
that it enables the parties to take advantage of the 
nonowner spouse's annual exclusion and unified credit. 
I.R.C. § 2513. 
Gifts (or Transfers) to Minors Act. A Uniform Act 
adopted by most states providing for a means of trans
ferring property (usually stocks and bonds) to a minor.

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The designated custodian of the property has the legal 
right to act on behalf of the minor without the necessity 
of a guardianship. Generally, the custodian possesses 
the right to change investments (e.g., sell one type of 
stock and buy another), apply the income from the 
custodial property to the minor's support, and even 
terminate the custodianship. In this regard, however, 
the custodian is acting in a fiduciary capacity on behalf 
of the minor. The custodian could not, for example, 
appropriate the property for his or her own use because 
it belongs to the minor. During the period of the 
custodianship, the income from the property is taxed to 
the minor. The custodianship terminates when the 
minor reaches legal age. One of the primary reasons for 
making gifts to minors pursuant to the requirements of 
the Uniform Act had been to receive favorable tax 
treatment; however, the Tax Reform Act of 1986 re
duced the tax benefits of such income shifting. 
This uniform act has been replaced by and renamed 
the Uniform Transfers to Minors Act. See Transfers to 
Minors Act. 
Gifts within three years of death. Some taxable gifts 
automatically are included in the gross estate of the 
donor if death occurs within three years of the gift. 
I.R.C. § 2035. 
Gift tax. A tax imposed on the transfer of property by 
gift. Such tax is imposed upon the donor of a gift and is 
based on the fair market value of the property on the 
date of the gift. See also Gift splitting election; Tax. 
Gift to a class. A gift of aggregate sum to body of 
persons uncertain in number at time of gift, to be 
ascertained at future time, who are all to take in equal 
shares, or some other definite proportion; share of each 
being dependent for its amount upon ultimate number 
taking. See also Class gift. 
Gild. In Saxon law, a tax or tribute. 
A fine, mulct, or amerciament; a satisfaction or com
pensation for an injury. 
In old English law, a fraternity, society, or company of 
persons combined together, under certain regulations, 
and with the king's license, and so called because its 
expenses were defrayed by the contributions (geld, gild) 
of its members. In other words, a corporation; called, 
in Latin, "societas," "collegium," "fratria," "fraternitas," 
"sodalitium," "adunatio;" and, in foreign law, "gildo
nia." There were various kinds of these gilds, as mer
chant or commercial gilds, religious gilds, and others. 
See Gilda mercatoria; Guild. 
A friborg, or decennary; called, by the Saxons, "gyld
scipes," and its members, "gildones" and "congildones." 
Gildable 19i1d�b�lI. In old English law, taxable, tribu
tary, or contributory; liable to pay tax or tribute. 
Gilda mercatoria 19i1d� m.Jrk�t6riy�/. In old English 
law, a gild merchant, or merchant gild; a gild, corpora
tion, or company of merchants. 
Gild-hall. See Guildhall. 
GIVE COLOR 
Gildo 19i1dow/. In Saxon law, members of a gild or 
decennary. Oftener spelled "congildo." 
Gild-rent. In old English law, certain payments made to 
the crown from any gild or fraternity. 
Gill. A measure of capacity, equal to one-fourth of a 
pint. 
Gilour Igayl�r/. L. Fr. A cheat or deceiver. Applied in 
Britton to those who sold false or spurious things for 
good, as pewter for silver or laten for gold. 
Gilt edge. As applied to commercial paper, a colloquial
ism, meaning of the best quality or highest price, first 
class; but not implying that a note which is not gilt edge 
is not collectible, or that the maker is irresponsible. 
Also, a bond or other security issue with the highest 
rating (i.e. highest investment quality). 
Ginnie Mae. Government National Mortgage Associa
tion; and the securities guaranteed by that agency. 
Girante Ijirantey/. An Italian word, which signifies the 
drawer of a bill. It is derived from "girare," to draw. 
Girth. In Saxon and old English law, a measure of 
length, equal to one yard, derived from the girth or 
circumference of a man's body. 
Gisement Ijayzm�nt/. L. Fr. Agistment; cattle taken 
in to graze at a certain price; also the money received 
for grazing cattle. 
Giser Ijayz�r/. L. Fr. To lie. Gist en Ie bouche, it lies 
in the mouth. Le action bien gist, the action well lies. 
Gisant, lying. 
Gisetaker Ijayzteyk�r/. An agister; a person who takes 
cattle to graze. 
Gisle Igayz�l/. In Saxon law, a pledge. Fredgisle, a 
pledge of peace. Gislebert, an illustrious pledge. 
Gist Ijist/. In common law pleading, the essential 
ground or object of the action in point of law, without 
which there would be no cause of action. The cause for 
which an action will lie or the ground or foundation of a 
suit without which it would not be maintainable; the 
essential ground or object of the suit without which 
there is no cause of action. This term is no longer used 
in those states that have adopted Rules of Civil Proce
dure, nor in the federal courts. 
Give. To transfer ownership or possession without com
pensation. To bestow upon another gratuitously or 
without consideration. See also Gift. 
Give and bequeath. These words, in a will, import a 
benefit in point of right, to take effect upon the decease 
of the testator and proof of the will, unless it is made in 
terms to depend upon some contingency or condition 
precedent. 
Give bail. To furnish or post bail or security for one's 
appearance. See Bail. 
Give color. To admit an apparent or colorable right in 
the opposite party. In common law pleading, a plea of 
confession and avoidance had to give color to the affirm-

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GIVE COLOR 
ative averments of the complaint, or it would be fatally 
defective. The "giving color" was simply the absence of 
any denials, and the express or silent admission that the 
declaration, as far as it went, told the truth. See Color. 
Give judgment. To render, pronounce, or declare the 
judgment of the court in an action at law; not spoken of 
a judgment obtained by confession. See Rendition of 
judgment. 
Give notice. To communicate to another, in any proper 
or permissible legal manner, information or warning of 
an existing fact or state of facts or (more usually) of 
some intended future action; e.g. tenant giving landlord 
thirty day notice of termination of tenancy; employee 
giving employer two weeks notice of intention to quit; to 
give notice of appeal to appellee. See also Notice. 
Giver. A donor; person who makes a gift. 
Give time. Extending the period at which, by the con
tract between them, the principal debtor was originally 
liable to pay the creditor. Buffalo Forge Co. v. Fidelity 
& Casualty Co. of New York, 142 Misc. 647, 256 N.Y.S. 
329, 334. See Forbearance. 
Give way. In the rules of navigation, one vessel is said 
to "give way" to another when she deviates from her 
course in such a manner and to such an extent as to 
allow the other to pass without altering her course. 
Giving in payment. In Louisiana law, a phrase (trans
lating the Fr. "dation en paiement") which signifies the 
delivery and acceptance of real or personal property in 
satisfaction of a debt, instead of a payment in money. 
Civil Code La. art. 2655 et seq. 
Gladius /glrediy�s/. Lat. A sword. An ancient emblem 
of defense. Hence the ancient earls or comites (the 
king's attendants, advisers, and associates in his govern
ment) were made by being girt with swords (gladio 
succincti). 
The emblem of the executory power of the law in 
punishing crimes. 4 Bl.Comm. 177. 
In old Latin authors, and in the Norman laws, this 
word was used to signify supreme jurisdiction (jus gla
dii). 
Glaive /gleyv/. A sword, lance, or horseman's staff. 
One of the weapons allowed in a trial by combat. 
Glass-Steagall Act. Also known as the Banking Act of 
1933, restricts the securities-related business of commer
cial banks in order to protect depositors. Such Act, 
which prohibits commercial banks from owning broker
age firms or engaging in brokerage business, applies 
both to national banks and to state-chartered banks that 
are members of the Federal Reserve System. 12 U.S. 
C.A. § 378. 
Gleaning. The gathering of grain after reapers, or of 
grain left ungathered by reapers. Held not to be a right 
at common law. 
Glebre ascriptitii / gliybiy reskriptishiyay /. In old Eng
lish law, villein-socmen, who could not be removed from 
the land while they did the service due. . 
690 
Glebe /gliyb/. In Ecclesiastical law, the land possessed 
as part of the endowment or revenue of a church or 
ecclesiastical benefice. 
In Roman law, a clod; turf; soil. Hence, the soil of an 
inheritance; an agrarian estate. Servi addicti glebre 
were serfs attached to and passing with the estate. 
Gliscywa. In Saxon law, a fraternity. 
Glos /glos/. Lat. In the civil law, a husband's sister. 
Gloss. An interpretation, consisting of one or more 
words, interlinear or marginal; an annotation, explana
tion, or comment on any passage in the text of a work, 
for purposes of elucidation or amplification. 
Glossa /glos�/. Lat. A gloss, explanation, or interpreta
tion. 
The glossre of the Roman law are brief illustrative 
comments or annotations on the text of Justinian's 
collections, made by the professors who taught or lec
tured on them about the twelfth century (especially at 
the law school of Bologna), and were hence called "glos
sators." These glosses were at first inserted in the text 
with the words to which they referred, and were called 
"glossre interlineares; " but afterwards they were placed 
in the margin, partly at the side, and partly under the 
text, and called "glossre marginales." A selection of 
them was made by Accursius, between A.D. 1220 and 
1260, under the title of "glossa Ordinaria," which is of 
the greatest authority. 
Glossator /gloseyt�r/. In the civil law, a commentator 
or annotator. A term applied to the professors and 
teachers of the Roman law in the twelfth century, at the 
head of whom was Irnerius. 
Glossa viperina est qure corrodit viscera textus / glos� 
vayp�rayn� est kwiy k�rowd�t vis�r� tekst�s/. It is a 
poisonous gloss which corrupts the essence of the text. 
Gloucester, Statute of /stretyuwt �v glost�r/. The Eng
lish statute of 6 Edw. I, c. 1, A.D. 1278. It takes its 
name from the place of its enactment, and was the first 
statute giving costs in actions. 
Gloves /gl:lvz/. In England, it was an ancient custom on 
a maiden assize, when there was no offender to be tried, 
for the sheriff to present the judge with a pair of white 
gloves. It was an immemorial custom to remove the 
glove from the right hand on taking oath. 
Glove silver. In old English law, extraordinary rewards 
formerly given to officers of courts, etc.; money formerly 
given by the sheriff of a county in which no offenders 
are left for execution to the clerk of assize and judges' 
officers. 
G.N.M.A. Government National Mortgage Association 
(Ginnie Mae). 
GNP. Gross National Product. 
Go. To be dismissed from a court. To issue from a 
court. "The court said a mandamus must go." 
Go bail. To assume the responsibility of a surety on a 
bail-bond.

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God and my country. The answer formerly made by a 
prisoner, when arraigned, in answer to the question, 
"How will you be tried?" In the ancient practice he had 
the choice (as appears by the question) whether to sub
mit to the trial by ordeal (by God) or to be tried by a 
jury (by the country); and it is probable that the origi
nal form of the answer was, "By God or my country," 
whereby the prisoner averred his innocence by declining 
neither of the modes of trial. 
God-bote. An ecclesiastical or church fine paid for 
crimes and offenses committed against God. 
God-gild. That which is offered to God or his service. 
God's penny. In old English law, earnest-money; mon
ey given as evidence of the completion of a bargain. 
This name is probably derived from the fact that such 
money was given to the church or distributed in alms. 
Go fifty-fifty. Division into halves of something under 
discussion by the parties at the time. Boyer v. Bowles, 
310 Mass. 134, 37 N.E.2d 489, 493. 
Go hence. To depart from the court; with the further 
implication that a suitor who is directed to "go hence" is 
dismissed from further attendance upon the court in 
respect to the suit or proceeding which brought him 
there, and that he is finally denied the relief which he 
sought, or, as the case may be, absolved from the liabili
ty sought to be imposed upon him. 
Going. In various compound phrases (as those which 
follow) this term implies either motion, progress, active 
operation, or present and continuous validity and effica
cy. 
Going and coming rule. Under this rule, employees 
who suffer injuries while going to and returning from 
work are generally excluded from the benefits of work
ers' compensation acts. Wiley Mfg. Co. v. Wilson, 30 
Md.App. 87, 351 A.2d 487, 490. Such injuries, generally, 
are not compensable because they do not arise out of or 
in the course of the employment. Church v. Arko, 75 
C.A.3d 291, 142 Cal.Rptr. 92, 95. 
Going before the wind. In the language of mariners 
and in the rules of navigation, a vessel is said to be 
going "before the wind" when the wind is free as re
spects her course, that is, comes from behind the vessel 
or over the stern, so that her yards may be braced 
square across. She is said to be "going off large" when 
she has the wind free on either tack, that is, when it 
blows from some point abaft the beam or from the 
quarter. 
Going concern. An enterprise which is being carried on 
as a whole, and with some particular object in view. 
The term refers to an existing solvent business, which is 
being conducted in the usual and ordinary way for 
which it was organized. When applied to a corporation, 
it means that it continues to transact its ordinary busi
ness. A firm or corporation which, though financially 
embarrassed, continues to transact its ordinary business. 
City and County of Denver v. Denver Union Water Co., 
246 U.S. 178, 38 S.Ct. 278, 62 L.Ed. 649. 
GOING TO THE COUNTRY 
Going concern value. The value of a firm, assuming 
that the firm's organization and assets remain intact 
and are used to generate future income and cash flows. 
The value which inheres in a company where its busi
ness is established, as distinguished from one which has 
yet to establish its business. East Bay Water Co. v. 
McLaughlin, D.C.Cal., 24 F.Supp. 222, 226. The value of 
the assets of a business as an operating, active concern, 
rather than merely as items of property (book value of 
assets alone) which would be the case in a liquidation 
sale. Such value includes goodwill. 
Going into effect of act. Becoming operative as a law. 
State ex reI. Bishop v. Board of Education of Mt. Orab 
Village School Dist.,.Brown County, 139 Ohio St. 427, 40 
N.E.2d 913, 919. 
Going off large. See Going before the wind. 
Going price. The prevalent market price; the current 
market value of the article in question at the time and 
place of sale. See Fair market value. 
Going private. Process by which a publically owned 
company becomes a privately held company. Causing of 
a class of equity securities to be delisted from a national 
securities exchange or the causing of a class of equity 
securities which is authorized to be quoted in an inter
dealer quotation system of a registered national securi
ties exchange to cease to be so authorized. Nearly all 
attempts to go private utilize variations of one or more 
of a limited number of basic techniques. These include 
(in probable order of frequency): (1) A cash tender offer 
to purchase all outstanding publically held shares by the 
issuer, its management or an affiliated entity; (2) a 
merger or consolidation of the issuer with, or the sale of 
its assets to, another corporation controlled by manage
ment of the issuer; (3) an exchange offer (almost always 
involving a debt security) by the issuer, its management 
or an affiliated entity; and (4) a reverse stock split. See 
also Leveraged buyout. 
Going public. Term used to describe the process by 
which a corporation issues its first stock for public 
purchase. Also, when a private corporation becomes a 
public corporation. Said of a business when its shares 
become traded to the general public, rather than being 
closely held by relatively few stockholders. 
Going short. See Short sale. 
Going through the bar. The act of the chief of an 
English common-law court in demanding of every mem
ber of the bar, in order of seniority, if he has anything to 
move. This was done at the sitting of the court each 
day in term, except special paper days, crown paper 
days in the queen's bench, and revenue paper days in 
the exchequer. On the last day of term this order is 
reversed, the first and second time round. In the ex
chequer the postman and tubman are first called on. 
Going to the country. When a party, under the com
mon-law system of pleading, finished his pleading by the 
words "and of this he puts himself upon the country," 
this was called "going to the country." It was the

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GOING TO THE COUNTRY 
essential termination of a pleading which took issue 
upon a material fact in the preceding pleading. 
Going value. See Going concern value. 
Going witness. One who is about to depart from the 
jurisdiction of the court, although only into a state or 
country under the general sovereignty; as from one 
state to another. 
Gold bond. One payable in gold coin or its equivalent, 
which means any money acceptable to United States 
government in payment of debts due it. 
Gold clause. Provision formerly found in contracts, 
bonds and mortgages calling for payment in gold, 
though such clause is void today. Norman v. Baltimore 
& Ohio R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885. 
Golden parachute. A slang term for a termination 
agreement which shelters executives from the effects of 
a corporate change in control. Koenings v. Joseph 
Schlitz Brewing Co., 126 Wis.2d 349, 377 N.W.2d 593, 
598. Such an agreement generally provides for substan
tial bonuses and other benefits for top management and 
certain directors who may be forced to leave the target 
company or otherwise voluntarily leave upon a change 
in control. Revlon, Inc. v. MacAndrews & Forbes Hold
ings, Inc., Del., 506 A.2d 173, 178. A special tax is 
imposed on golden parachute payments. I.R.C. § 4999. 
Golden Rule argument. "Golden Rule" type of argu
ment, by which jurors are urged to place themselves or 
members of their families or friends in place of person 
who has been offended and to render verdict as if they 
or either of them or member of their families or friends 
was similarly situated, is improper in both civil and 
criminal cases. Lycans v. Com., Ky., 562 S.W.2d 303. 
Goldsmiths' notes. Bankers' cash notes (i.e., promissory 
notes given by a banker to his customers as acknowledg
ments of the receipt of money) were originally called in 
London "goldsmiths' notes," from the circumstance that 
all the banking business in England was originally 
transacted by goldsmiths. 
Gold standard. A monetary system in which every 
form of currency is convertible on demand into its legal 
equivalent in gold or gold coin. The United States 
adopted the gold standard in 1900 and terminated it in 
1934. 
Goldwit. A mulct or fine in gold. 
Gomashtah /g�masht�/. In Hindu law, an agent; a 
steward; a confidential factor; a representative. 
Good. Valid; sufficient in law; effectual; unobjectiona
ble; sound; responsible; solvent; able to pay an amount 
specified. 
Of a value corresponding with its terms; collectible. 
A note is said to be "good" when the payment of it at 
maturity may be relied on. 
Good abearing. See Abearance. 
Good and clear record title, free from all incumbran
ces. A title which on the record itself can be again sold 
as free from obvious defects and substantial doubts; it 
692 
differs from a "good, marketable title," which is an 
actual title, but which may be established by evidence 
independently of the record. See Marketable title. 
Good and valid. Reliable, sufficient, and unimpeach
able in law; adequate; responsible. 
Good and workmanlike manner. In a manner gener
ally considered skillful by those capable of judging such 
work in the community of the performance. 
Good behavior. Orderly and lawful conduct; behavior 
such as is proper for a peaceable and law-abiding citizen. 
A term is used in an order suspending sentence upon a 
defendant during good behavior, means merely conduct 
conformable to law, or to the particular law theretofore 
breached. 
Under some state penal systems, each day of "good 
behavior" by a prisoner reduces his or her sentence by 
one day. See also Goodtime allowance. 
Good cause. Term generally means a substantial rea
son amounting in law to a legal excuse for failing to 
perform an act required by law. People v. Gillett, Colo., 
629 P.2d 613, 618. Legally sufficient ground or reason. 
Phrase "good cause" depends upon circumstances of 
individual case, and finding of its existence lies largely 
in discretion of officer or court to which decision is 
committed. Wilson v. Morris, Mo., 369 S.W.2d 402, 407. 
It is a relative and highly abstract term, and its mean
ing must be determined not only by verbal context of 
statute in which term is employed but also by context of 
action and procedures involved in type of case presented. 
Wray v. Folsom, D.C.Ark., 166 F.Supp. 390, 394, 395. 
See also Probable cause. 
Alimony modification. "Good cause" for modification or 
revocation of orders for alimony means material and 
substantial change in circumstances and depends upon 
circumstances of individual case. Creager v. Creager, 
219 Neb. 760, 366 N.W.2d 414, 416. 
Discovery. "Good cause" for discovery is present if 
information sought is material to moving party's trial 
preparation. Daniels v. Allen Industries, Inc., 391 Mich. 
398, 216 N.W.2d 762, 766. Such requirement for dis
covery and production of documents is ordinarily satis
fied by a factual allegation showing that requested doc
uments are necessary to establishment of the movant's 
claim or that denial of production would cause moving 
party hardship or injustice. Black v. Sheraton Corp. of 
America, D.C.D.C., 47 F.R.D. 263, 273. Under a 1970 
amendment to Fed.R.Civil P. 34, however, "good cause" 
is no longer required to be shown for production of 
documents and things. Federal Rule 35(a) does, how
ever, require that "good cause" be shown for order 
requiring physical or mental examination, as does Rule 
26(c) for protective orders to restrict scope of discovery. 
Unemployment compensation. "Good cause" for leaving 
employment, so as not to render one ineligible for unem
ployment compensation benefits, must be objectively 
related to the employment and be such cause as would 
compel a reasonably prudent person to quit under sim-

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693 
ilar circumstances. Garrelts v. Employment Division, 
21 Or.App. 437, 535 P.2d 115, 116. 
Good character. Sum or totality of virtues of a person 
which generally forms the basis for one's reputation in 
the community, though his reputation is distinct from 
his character. See Character; Reputation. 
Good conduct. See Certificate of good conduct. 
Good consideration. Any benefit conferred, or agreed 
to be conferred, upon the promisor, by any other person, 
to which the promisor is not lawfully entitled, or any 
prejudice suffered, or agreed to be suffered, by such 
person, other than such as the person is at the time of 
consent lawfully bound to suffer, as an inducement to 
the promisor, is a good consideration for a promise. 
That consideration or detriment which the law considers 
valid and to this extent "good" does not refer to moral 
goodness. See Consideration; Valuable consideration. 
Good faith. Good faith is an intangible and abstract 
quality with no technical meaning or statutory defini
tion, and it encompasses, among other things, an honest 
belief, the absence of malice and the absence of design to 
defraud or to seek an unconscionable advantage, and an 
individual's personal good faith is concept of his own 
mind and inner spirit and, therefore, may not conclu
sively be determined by his protestations alone. Doyle 
v. Gordon, 158 N.Y.S.2d 248, 259, 260. Honesty of 
intention, and freedom from knowledge of circumstances 
which ought to put the holder upon inquiry. An honest 
intention to abstain from taking any unconscientious 
advantage of another, even through technicalities of 
law, together with absence of all information, notice, or 
benefit or belief of facts which render transaction uncon
scientious. In common usage this term is ordinarily 
used to describe that state of mind denoting honesty of 
purpose, freedom from intention to defraud, and, gener
ally speaking, means being faithful to one's duty or 
obligation. Efron v. Kalmanovitz, 249 Cal.App. 187, 57 
Cal. Rptr. 248, 251. See Bona fide. Compare Bad faith. 
Bankruptcy law. "Good faith" as used in statute requir
ing debtor to propose Chapter 13 plan in good faith has 
a meaning consisting of two elements: honesty of pur
pose and full and complete disclosure of the financial 
facts of the debtor. Matter of Harper, Bkrtcy.Ga., 11 
B.R. 395, 396. 
Commercial law. Honesty in fact in the conduct or 
transaction concerned. V.C.C. § 1-201(19). In the case 
of a merchant, honesty in fact and the observance of 
reasonable commercial standards of fair dealing in the 
trade. V.C.C. § 2-103(1)(b). 
Insurance law. "Good faith" required of a liability 
insurer in determining whether to accept settlement 
within policy limits implies honesty, fair dealing and 
full revelation; while "bad faith" implies dishonesty, 
fraud and concealment. Davy v. Public Nat. Ins. Co., 
181 C.A.2d 387, 5 Cal.Rptr. 488, 492. 
Good faith bargaining. In labor law, requirement of 
"good faith bargaining" imposes upon employer and 
employee organization obligation to come to the bargain-
GOODRIGHT, GOODTITLE 
ing table with an open mind and sincere desire to reach 
agreement. Duval County School Bd. v. Florida Public 
Emp. Relations Commission, Fla.App., 353 So.2d 1244, 
1248. Such necessarily entails the earnest efforts of 
both sides to resolve a controversy. N.L.R.B. v. Decorel 
Corp., C.A.Ill., 397 F.2d 488, 493. 
Good faith exception to exclusionary rule. See Exclu
sionary Rule. 
Good faith purchaser. A purchaser who buys without 
notice of circumstance which would put a person of 
ordinary prudence on inquiry as to the title, or as to an 
impediment on the title, of a seller. Sometimes used 
interchangeably with a "buyer in ordinary course of 
business" when the seller is a merchant. VCC 1-201(9), 
�03. 
Good health. A relative term, meaning a condition of 
body and mind that ordinary affairs of life may be 
attended to without serious strain upon the vital powers. 
Life & Cas. Ins. Co. of Tenn. v. Truett, 112 Ga.App. 338, 
145 S.E.2d 84, 87. As employed in insurance contracts, 
ordinarily means a reasonably good state of health. It 
means that the applicant has no grave, important, or 
serious disease, and is free from any ailment that seri
ously affects the general soundness and healthfulness of 
the system. Norwick v. Vnited Sec. Life Co., 82 S.D. 
640, 152 N.W.2d 439, 443. A mere temporary indisposi
tion not tending to weaken or undermine constitution 
does not render a person in "bad health." It does not 
mean a condition of perfect health. 
Good jury. A jury of which the members are selected 
from the list of special jurors. 
Good, merchantable abstract of title. An abstract 
showing a good title, clear from incumbrances, and not 
merely an abstract of matters of record affecting the 
title, made by one engaged in the business of making 
abstracts in such form as is customary, as passing cur
rent among persons buying and selling real estate and 
examining titles. See also Marketable title. 
Good moral character. As a prerequisite to the admis
sion to the practice of law, an absence of proven conduct 
or acts which have been historically considered as man
ifestation of moral turpitude. Reese v. Board of Com'rs 
of Alabama State Bar, Ala., 379 So.2d 564, 569. 
Good order. Goods or property are in "good order" 
when they are in acceptable condition under all the 
circumstances. See Merchantability. 
Good record title. A "good record title," without words 
of limitation, means that the proper records shall show 
an unincumbered, fee-simple title, the legal estate in fee, 
free and clear of all valid claims, liens, and incumbran
ces. See also Marketable title. 
Good repute. An expression, synonymous with and 
meaning only "of good reputation." See Reputation. 
Goodright, goodtitle. The fictitious plaintiff in the old 
action of ejectment, most frequently called "John Doe," 
was sometimes called "Goodright" or "Goodtitle."

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GOODS 
Goods. A term of variable content and meaning. It 
may include every species of personal property or it may 
be given a very restricted meaning. 
Items of merchandise, supplies, raw materials, or fin
ished goods. Sometimes the meaning of "goods" is ex
tended to include all tangible items, as in the phrase 
"goods and services." 
All things (including specially manufactured goods) 
which are movable at the time of identification to the 
contract for sale other than the money in which the 
price is to be paid, investment securities and things in 
action. Also includes the unborn of animals and grow
ing crops and other identified things attached to realty 
as fixtures. U.C.C. § 2-105(1). All things treated as 
movable for the purposes of a contract of storage or 
transportation. U.C.C. § 7-102(1 )(f). In context of 
U.C.C., includes used goods. Moore v. Burt Chevrolet, 
Inc., 39 Colo.App. 11, 563 P.2d 369, 370. 
As used with reference to secured transactions, goods 
include all things which are movable at the time the 
security interest attaches or which are fixtures, but does 
not include money, documents, instruments, accounts, 
chattel paper, general intangibles, or minerals or the 
like (including oil and gas) before extraction. "Goods" 
also includes standing timber which is to be cut and 
removed under a conveyance or contract for sale, the 
unborn young of animals, and growing crops. U.C.C. 
§ 9-105(h). 
See also Confusion of goods; Future goods; Identifica
tion of goods. 
Capital goods. The equipment and machinery used in 
production of other goods or services. 
Consumer goods. Goods which are used or bought for 
use primarily for personal, family or household pur
poses. U.C.C. § 9-109(1). See also Consumer goods. 
Durable goods. Goods which have a reasonably long life 
and which are not generally consumed in use; e.g. 
refrigerator. 
Fungible goods. Goods, every unit of which is similar to 
every other unit in the mass; e.g. uniform goods such as 
coffee, grain, etc. U.C.C. § 1-201(17). 
Hard goods. Consumer durable goods. See Durable 
goods, above. 
Soft goods. Generally consumer goods such as wearing 
apparel, curtains, etc., in contrast to hard goods (e.g. 
appliances). 
Good Samaritan doctrine. One who sees a person in 
imminent and serious peril through negligence of anoth
er cannot be charged with contributory negligence, as a 
matter of law, in risking his own life or serious injury in 
attempting to effect a rescue, provided the attempt is 
not recklessly or rashly made. Jobst v. Butler Well 
Servicing, Inc., 190 Kan. 86, 372 P.2d 55, 59. Under this 
doctrine, negligence of a volunteer rescuer must worsen 
position of person in distress before liability will be 
imposed. U. S. v. DeVane, C.A.Fla., 306 F.2d 182, 186. 
This protection from liability is provided by statute in 
most states. 
\ 
694 
Goods and chattels. This phrase is a general denom
ination of personal property, as distinguished from real 
property. In the law of wills, the term "goods and 
chattels" will, unless restrained by the context, pass all 
the personal estate. 
Goods sold and delivered. A phrase frequently used in 
the action of assumpsit, when the sale and delivery of 
goods furnish the cause. 
Goods, wares, and merchandise. A general and com
prehensive designation of such chattels and goods as are 
ordinarily the subject of traffic and sale. The phrase is 
used in the statute of frauds, and is sometimes found in 
pleadings and other instruments. 
Goodtime allowance. "Good time" credit is awarded 
for good conduct and reduces period of sentence which 
prisoner must spend in prison although it does not 
reduce the period of the sentence itself. Carothers v. 
Follette, D.C.N.Y., 314 F.Supp. 1014, 1026, 1027. Credit 
allowed on the sentence which is given for satisfactory 
conduct in prison. Introduced as an incentive for in
mates, it has become practically automatically awarded. 
It may reduce the minimum or maximum sentence or 
both. See also Good behavior. 
Good title. One free from reasonable doubt, that is, not 
only a valid title in fact, but one that can again be sold 
to a reasonable purchaser or mortgaged to a person of 
reasonable prudence. MacGowan v. Gaines, 127 Vt. 
477, 253 A.2d 121, 123. A title free from litigation, 
palpable defects and grave doubts. See also Marketable 
title. 
Goodwill. The favor which the management of a busi
ness wins from the public. The favorable consideration 
shown by the purchasing public to goods or services 
known to emanate from a particular source. White 
Tower System v. White Castle System of Eating Houses 
Corporation, C.C.A.Mich., 90 F.2d 67, 69. Property of an 
intangible nature, commonly defined as the expectation 
of continued public patronage. In re Marriage of Luk
ens, 16 Wash.App. 481, 558 P.2d 279, 280. 
The custom of patronage of any established trade or 
business; the benefit or advantage of having established 
a business and secured its patronage by the public. And 
as property incident to business sold, favor vendor has 
won from public, and probability that all customers will 
continue their patronage. It means every positive ad
vantage that has been acquired by a proprietor in carry
ing on his business, whether connected with the premis
es in which the business is conducted, or with the name 
under which it is managed, or with any other matter 
carrying with it the benefit of the business. 
The excess of cost of an acquired firm or operating 
unit over the current or fair market value of net assets 
of the acquired unit. Informally used to indicate the 
value of good customer relations, high employee morale, 
a well-respected business name, etc. which are expected 
to result in greater than normal earning power. 
The ability of a business to generate income in excess 
of normal rate on assets, due to superior managerial 
skills, market position, new product technology, etc.

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695 
The capacity to earn profits in excess of a normal rate of 
return due to establishment of favorable community 
reputation and consumer identification of the business 
name. North Clackamas Community Hospital v. Har
ris, C.A.Or., 664 F.2d 701, 706. 
As applied to law firms, term refers to ability to 
attract clients as result of firm's name, location, or the 
reputation of lawyers. Bump v. Stewart, Wimer & 
Bump, P.C., Iowa, 336 N.W.2d 731, 736. 
For accounting purposes, goodwill has no basis unless 
it is purchased. In the purchase of a business, goodwill 
generally is the difference between the purchase price 
and the value of the assets acquired. Goodwill is an 
intangible asset and cannot be amortized for tax pur
poses. See also Amortization. 
Gore. In old English law, a small, narrow slip of ground. 
In modern land law, a small triangular piece of land, 
such as may be left between surveys which do not close. 
In some of the New England states (as Maine and 
Vermont) the term is applied to a subdivision of a 
county, having a scanty population and for that reason 
not organized as a town. 
Gossipred Igos;}pred/. In canon law, compaternity; 
spiritual affinity. 
Go to. In a statute, will, or other instrument, a direction 
that property shall "go to" a designated person means 
that it shall pass or proceed to such person, vest in and 
belong to him. 
Go to protest. Commercial paper is said to "go to 
protest" when it is dishonored by non-payment or non
acceptance. See also Protest. 
Govern. To direct and control the actions or conduct of, 
either by established laws or by arbitrary will; to direct 
and control, rule, or regulate, by authority. To be a 
rule, precedent, law or deciding principle for. 
Governing body. Governing body of institution, orga
nization or territory means that body which has ulti
mate power to determine its policies and control its 
activities. Student Bar Ass'n Bd. of Governors of School 
of Law, University of North Carolina at Chapel Hill v. 
Byrd, N.C., 239 S.E.2d 415, 421. 
Government. From the Latin gubernaculum. Signifies 
the instrument, the helm, whereby the ship to which the 
state was compared, was guided on its course by the 
"gubernator" or helmsman, and in that view, the 
government is but an agency of the state, distinguished 
as it must be in accurate thought from its scheme and 
machinery of government. 
In the United States, government consists of the exec
utive, legislative, and judicial branches in addition to 
administrative agencies. In a broader sense, includes 
the federal government and all its agencies and bureaus, 
state and county governments, and city and township 
governments. 
The system of polity in a state; that form of funda
mental rules and principles by which a nation or state is 
governed, or by which individual members of a body 
politic are to regulate their social actions. A constitu-
GOVERNMENTAL ACT 
tion, either written or unwritten, by which the rights 
and duties of citizens and public officers are prescribed 
and defined, as a monarchical government, a republican 
government, etc. The sovereign or supreme power in a 
state or nation. The machinery by which the sovereign 
power in a state expresses its will and exercises its 
functions; or the framework of political institutions, 
departments, and offices, by means of which the execu
tive, judicial, legislative, and administrative business of 
the state is carried on. 
The whole class or body of officeholders or functionar
ies considered in the aggregate, upon whom devolves the 
executive, judicial, legislative, and administrative busi
ness of the state. 
In a colloquial sense, the United States or its repre
sentatives, considered as the prosecutor in a criminal 
action; as in the phrase, "the government objects to the 
witness." 
The regulation, restraint, supervision, or control 
which is exercised upon the individual members of an 
organized jural society by those invested with authority; 
or the act of exercising supreme political power or 
controL 
See also De facto government; Federal government; 
Judiciary; Legislature; Seat of government. 
Federal government. The government of the United 
States of America, as distinguished from the govern
ments of the several states. 
Local government. The government or administration 
of a particular locality; especially, the governmental 
authority of a municipal corporation, as a city or county, 
over its local and individual affairs, exercised in virtue 
of power delegated to it for that purpose by the general 
government of the state or nation, 
Mixed government. A form of government combining 
some of the features of two or all of the three primary 
forms, viz., monarchy, aristocracy, and democracy. 
Republican government. One in which the powers of 
sovereignty are vested in the people and are exercised 
by the people, either directly, or through representatives 
chosen by the people, to whom those powers are special
ly delegated. In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 
35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 WalL) 
162, 22 L.Ed. 627. 
Governmental. Of, pertaining to, or proceeding from 
government. 
Governmental act. An act in exercise of police power 
or in exercise of constitutional, legislative, administra
tive, or judicial powers conferred on federal, state or 
local government for benefit of public. A step physical
ly taken by persons capable of exercising the sovereign 
authority of the foreign nation. Banco de Espana v. 
Federal Reserve Bank of New York, C.C.A.N.Y., 114 
F.2d 438, 444. Any action of the federal government, or 
of a state, within its constitutional power. Graves v. 
People of State of New York ex reI. O'Keefe, N.Y., 306 
U.S. 466, 59 S.Ct. 595, 596, 83 L.Ed. 927. See also 
Governmental activity; Governmental functions.

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GOVERNMENTAL ACTIVITY 
Governmental activity. A function of government in 
providing for its own support or in providing services to 
the public; e.g. taxation and the collection of taxes. 
Goble v. Zolot, 144 Neb. 70, 12 N.W.2d 311, 312. Gener
ally, when a municipality's activity is for advantage of 
state as a whole, or is in performance of a duty imposed 
by sovereign power, activity is "public" and "govern
mental." Department of Treasury v. City of Evansville, 
Ind., 223 Ind. 435, 60 N.E.2d 952, 955. See Governmental 
act; Governmental functions. 
Governmental agency. A subordinate creature of fed
eral, state or local government created to carry out a 
governmental function or to implement a statute or 
statutes. For example, the Federal Trade Commission 
was created and functions to implement and enforce the 
Federal Trade Commission Act and various other feder
al antitrust and consumer protection laws. See also 
Administrative agency; Governmental subdivision. 
Governmental agents. Those performing services and 
duties of a public character for benefit of all citizens of 
community. The term includes firemen and policemen. 
Miller v. City of Albany, 158 Misc. 720, 287 N.Y.S. 889, 
891. Also, public school officials are government agents 
within the purview of both the Federal and State Consti
tutions and, thus, must respect the constitutional rights 
of students in their charge against unreasonable 
searches and seizures. In re William G., 40 C.3d 550, 
221 Cal.Rptr. 118, 124, 709 P.2d 1287, 1293. 
Governmental body. See Administrative agency; Gov
ernmental agency; Governmental subdivision. 
Governmental duties. Those duties of a municipality 
that have reference to some part or element of the 
state's sovereignty granted it to be exercised for the 
benefit of the public, and all other duties are "proprie
tary". Those duties that the framers of the Constitution 
intended each member of the union of states would 
assume in order adequately to function under the form 
of government guaranteed by the Constitution. First 
State Bank of Gainesville v. Thomas, D.C.Tex., 38 
F.Supp. 849, 851. See also Governmental functions. 
Governmental enterprise. A project or undertaking by 
the government of a more or less permanent nature, 
such as a drainage district. Rorick v. United States 
Sugar Corporation, C.C.A.Fla., 120 F.2d 418, 421. 
Governmental facility. A building or institution pro
vided by the government to care for a specified need, 
such as a courthouse or county jail. Haney v. Town of 
Rainelle, 125 W.Va. 397, 25 S.E.2d 207, 211. 
Governmental functions. The functions of a munici
pality which are essential to its existence, in sense of 
serving public at large, and are to be distinguished from 
those which are private, which are not necessary to its 
existence, and which enure to advantage of its inhab
itants. City of New Rochelle v. State, 34 Misc.2d 454, 
228 N.Y.S.2d 279, 282. Activities which are carried on 
by city, pursuant to state requirement, in discharge of 
state's obligation for health, safety or general welfare of 
public generally, or which are voluntarily assumed by 
696 
city for benefit of public generally rather than for its 
own citizens, are performed in governmental capacity 
and as "governmental function". Sarmiento v. City of 
Corpus Christi, Tex.Civ.App., 465 S.W.2d 813, 816, 818. 
See Governmental act; Governmental activity. 
Governmental immunity. See Federal Tort Claims Act; 
Sovereign immunity. 
Governmental instrumentality. Any agency constitu
tionally or legislatively created. For purposes of the 
doctrine that federal agencies or instrumentalities are 
immune from special assessments by state and local 
governments, a governmental instrumentality is that 
which performs an important governmental function. 
Federal Reserve Bank of St. Louis v. Metrocentre Imp. 
Dist. No. 1, City of Little Rock, Ark., C.A.Ark., 657 F.2d 
183, 185. See Administrative agency; Governmental agen
cy; Governmental subdivision. 
Governmental interests. In conflicts of law, term used 
to describe the particular governmental policies of a 
jurisdiction in terms of whether its law or another law 
should be applied in a choice of law issue. 
Governmental powers. The totality of power which 
reposes in a government enabling it to carry out its 
proper functions as a sovereign. General powers of 
federal government are enumerated in U.S. Constitu
tion; powers of state governments in state constitutions; 
municipal governments in charters. 
Governmental privileges. See Governmental secrets. 
Governmental purpose. One which has for its objec
tive the promotion of the public health, safety, morals, 
general welfare, security, prosperity and contentment of 
the inhabitants of a given political division. See also 
Governmental functions. 
Governmental secrets. In evidence, a privilege exists 
which protects the government from revealing military 
or diplomatic secrets or other information the disclosure 
of which would be contrary to the public interest. U. S. 
v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727. See 
also Executive privilege. 
Governmental subdivision. An agency created to 
carry out a governmental purpose or function. See 
Administrative agency; Governmental agency. 
Governmental trusts. Type of charitable trust used for 
erection and maintenance of public buildings and for the 
promotion of purposes which are of a character suffi
ciently beneficial to the community to justify permitting 
property to be devoted forever to their accomplishment. 
Restatement, Second, Trusts, §§ 373, 374. 
Government annuities societies. Societies formed in 
England under 3 & 4 Wm. IV, c. 14, 7 & 8 Vict., c. 83, 16 
& 17 Vict., c. 45, and 27 & 28 Vict., c. 43, to enable the 
industrious classes to make provisions for themselves by 
purchasing, on advantageous terms, a government annu
ity for life or term of years. 
Government bonds. See Bond. 
Government contract. See Procurement contract.

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697 
Goventment de facto. A government of fact. A 
government actually exercising power and control, is 
opposed to the true and lawful government; a govern
ment not established according to the constitution of the 
nation, or not lawfully entitled to recognition or su
premacy, but which has nevertheless supplanted or dis
placed the government de jure. A government deemed 
unlawful, or deemed wrongful or unjust, which, never
theless, receives presently habitual obedience from the 
bulk of the community. 
There are several degrees of what is called "de facto 
government." Such a government, in its highest degree, 
assumes a character very closely resembling that of a 
lawful government. This is when the usurping govern
ment expels the regular authorities from their custom
ary seats and functions, and establishes itself in their 
place, and so becomes the actual government of a coun
try. The distinguishing characteristic of such a govern
ment is that adherents to it in war against the govern
ment de jure do not incur the penalties of treason; and, 
under certain limitations, obligations assumed by it in 
behalf of the country or otherwise will, in general, be 
respected by the government de jure when restored. 
Such a government might be more aptly denominated a 
"government of paramount force," being maintained by 
active military power against the rightful authority of 
an established and lawful government; and obeyed in 
civil matters by private citizens. They are usually ad
ministered directly by military authority, but they may 
be administered, also, by civil authority, supported more 
or less by military force. Thorington v. Smith, 75 U.S. 
(8 Wall.) 1, 19 L.Ed. 361. 
Government de jure /g�v�rnm;mt diy juriy/. A govern
ment of right; the true and lawful government; a 
government established according to the constitution of 
the nation, and lawfully entitled to recognition and 
supremacy and the administration of the nation, but 
which is actually cut off from power or control. A 
government deemed lawful, or deemed rightful or just, 
which, nevertheless, has been supplanted or displaced; 
that is to say, which receives not presently (although it 
received formerly) habitual obedience from the bulk of 
the community. 
Government immunity. See Governmental immunity. 
Government instrumentality doctrine. The doctrine 
that government instrumentalities are tax exempt. 
Government National Mortgage Association. Agency 
of Federal government (division of HUD) which is pri
marily engaged in purchasing on the secondary market 
federally subsidized residential mortgages originated by 
local lenders, and also in guaranteeing payment of secu
rities backed by residential mortgages. Referred to as 
"Ginnie Mae." 
Government of laws. Fundamental principle of Ameri
can jurisprudence which requires decisions of courts to 
be based on laws, statutory and common law, irrespec
tive of the character of the litigants and the personal 
predelictions of the judges. 
GRACE PERIOD 
Government securities. Direct debt obligations of U.S. 
government; see e.g., Treasury bill; Treasury bond; Trea
sury note. 
Government survey. General mapping out by govern
ment of towns, sections, quarter sections, etc.; some
times known as a congressional survey. See also 
Government survey system. 
Government survey system. A type of legal descrip
tion whereby the United States is generally divided into 
checks or tracts of ground. These are further broken 
down by smaller descriptions, such as metes and bounds. 
See also Government survey; Metes and bounds. 
Government tort. A wrong perpetrated by the govern
ment through an employee or agent or instrumentality 
under its control which may or may not be actionable 
depending upon whether there is governmental tort 
immunity. Tort actions against the federal government 
are governed by the Federal Tort Claims Act; many 
states also have Tort Claims Acts. See Federal Tort 
Claims Act; Sovereign immunity. 
Governor. The chief executive official of a state in the 
United States, and territories of the United States; and 
also of the chief magistrate of some colonies, provinces, 
and dependencies of other nations. Governors serve 
terms ranging from two to four years; are usually 
restricted to two terms in office; possess veto powers, 
powers to call special sessions of legislature, powers to 
pardon and reprieve, and many other appointive, admin
istrative, and financial powers. See also Lieutenant gov
ernor. 
Go without day. Words used to denote that a party is 
dismissed by the court. Party is said to go without day, 
because there is no day appointed for the party to 
appear again. 
GPO. Government Printing Office. Such office prints 
and publishes laws, regulations, forms, etc. of federal 
government. 
Grace. A favor or indulgence as distinguished from,' a 
right. See also Days of grace; Grace, days of; Grace 
period; Of grace. 
Grace, days of. Time of indulgence granted to an accep
tor or maker for the payment of his bill of exchange or 
note. It was originally a gratuitous favor (hence the 
name), but custom has rendered it a legal right. See 
also Days of grace; Grace period. 
Grace period. In insurance law, a period beyond the 
due date of premium (usually 30 or 31 days) during 
which insurance is continued in force and during which 
payment may be made to keep policy in good stand'"ng. 
The grace period for payment of premium does not 
contemplate free insurance or operate to continue the 
policy in force after it expires by agreement of the 
parties. Miller v. Travelers Ins. Co., 143 Pa.Super. 270, 
17 A.2d 907, 909. May also refer to period of time 
provided for in a loan agreement during which default 
will not occur even though payment is overdue.

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GRADATIM 
Gradatim /gr;)deyt;)m/. In old English law, by degrees 
or steps; step by step; from one degree to another. 
Grade, v. To establish a level by mathematical points 
and lines, and then to bring the surface of the street or 
highway to the level by the elevation or depression of 
the natural surface to the line fixed. To bring property 
to the level of an abutting highway. Nassau County v. 
O'Connell, Sup., 37 N.Y.S.2d 1009, 1012. 
Grade, n. Used in reference to streets: (1) The line of 
the street's inclination from the horizontal; (2) a part of 
a street inclined from the horizontal. The hypothetical 
line to which the work is to be constructed. Musto
Keenan Co. v. City of Los Angeles, 139 Cal.App. 506, 34 
P.2d 506, 509. The street wrought to the line. 
"Grades of crime" in legal parlance are understood as 
higher or lower in grade or degree, according to the 
measure of punishment attached and meted out on 
conviction and the consequences resulting to the party 
convicted; e.g. first, second or, third degree murder. See 
Classification of crimes; Graded offense. 
Quality, value, relative position, rank, status, or 
standing. Mossman v. Chicago & Southern Air Lines, 
236 Mo.App. 282, 153 S.W.2d 799, 801, 802. 
Grade crossing. A place where a railroad is crossed at 
grade by a public or private road, or by another railroad, 
or where one highway crosses another. 
Graded offense. One for which offender is subject to a 
more severe penalty for a higher grade than for a lower 
grade of offense according to terms of statute; e.g., first 
degree murder, as opposed to second or third degree; 
aggravated as opposed to simple assault. Most state 
criminal statutes provide for degrees of crimes with 
corresponding differing punishments or sentences. See 
Classification of crimes. 
Graduate. One who has received a degree, or other 
evidence of completion, from a grade school, high school, 
trade or vocational school, college, university, graduate 
or professional school, or the like. 
Graduated lease. A type of lease arrangement which 
provides that rent will vary depending upon future 
contingencies, such as the amount of traffic or gross 
income produced. 
Graduated payment mortgages (GPM). See Mortgage. 
Graduated tax. Tax structured so that the rate increas
es as the amount of income of taxpayer increases. 
Gradus /greyd;)s/. In the civil and old English law, a 
measure of space. A degree of relationship. 
A step or degree generally; e.g., gradus honorum, 
degrees of honor. A pulpit; a year; a generation. 
A port; any place where a vessel can be brought to 
land. 
Gradus parentelre /greyd;)s prer;)ntiyliy/. A pedigree; a 
table of relationship. 
Graffarius / gr;)feriy;)s/ . In old English law, a graffer, 
notary, or scrivener. 
698 
Graffer /grref;)r/. A notary or scrivener. The word is a 
corruption of the French "greffier" (q.v.). 
Graffium /grrefiy;)m/. A writing-book, register, or cartu
lary of deeds and evidences. 
Grafio / greyf(i)yow /. A baron, inferior to a count. A 
fiscal judge. An advocate. 
Graft. The popular meaning is the fraudulent obtaining 
of public money unlawfully by the corruption of public 
officers. Smith v. Pure Oil Co., 278 Ky. 430, 128 S.W.2d 
931, 933. Advantage or personal gain received because 
of peculiar position or superior influence of one holding 
position of trust and confidence without rendering com
pensatory services, or dishonest transaction in relation 
to public or official acts, and sometimes implies theft, 
corruption, dishonesty, fraud, or swindle, and always 
want of integrity. See e.g. 18 U.S.C.A. § 201 et seq. See 
also Bribery. 
A term used in equity to denote the confirmation, by 
relation back, of the right of a mortgagee in premises to 
which, at the making of the mortgage, the mortgagor 
had only an imperfect title, but to which the latter has 
since acquired a good title. 
Grain. In Troy weight, the twenty-fourth part of a 
pennyweight. Any kind of corn sown in the ground. 
Grainage. An ancient duty in London under which the 
twentieth part of salt imported by aliens was taken. 
Grain rent. A payment for the use of land in grain or 
other crops; the return to the landlord paid by share
croppers or persons working the land on shares. 
Grammar school. In England, this term designates a 
school in which such instruction is given as will prepare 
the student to enter a college or university, and in this 
sense the phrase was used in the Massachusetts Colonial 
Act of 1647, requiring every town containing a hundred 
householders to set up a "grammar school." But in 
American usage the term usually denotes a school, in
termediate between the primary school and the high 
school. 
Grammatica falsa non vitiat chartam / gr;)mret;)k;) f61s;) 
non vishiy;)t kart;)m/. False grammar does not vitiate a 
deed. 
Grammatophylacium / grrem;)t;)f;)leysh(iy);)m/. (Grreco
Lat.) In the civil law, a place for keeping writings or 
records. 
Gramme / grrem/. The unit of weight in the metric 
system. The gramme is the weight of a cubic centi
meter of distilled water at the temperature of 40 C. It is 
equal to 15.4341 grains troy, or 5.6481 drachms avoirdu
pois. 
Gramm-Rudman-Hollings amendment. Federal law 
(1986) setting balanced budget goals and requiring auto
matic reductions in federal expenditures (with certain 
programs exempted) if Congress fails to meet such annu
al goals.

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699 
Granatarius Igrren::lter(i)Y::ls/. In old English law, an 
officer having charge of a granary. 
Grand, n. Jargon term for one thousand dollars. 
As to grand Assize; Cape; Distress; Jury; Larceny; 
Serjeanty, see those titles. 
Grandchild. Generally, child of one's child. Descen
dant of second degree. 
Grand coutumier I grcm kuwtyuwmyey I. A collection of 
customs, laws, and forms of procedure in use in early 
times in France. See Coustoumier. 
Grand days. In English practice, certain days in the 
terms, which are solemnly kept in the inns of court and 
chancery, viz., Candlemas day in Hilary term, Ascension 
day in Easter, St. John the Baptist day in Trinity, and 
All Saints in Michaelmas; which are dies non juridici. 
They are days set apart for peculiar festivity; the mem
bers of the respective inns being on such occasions 
regaled at their dinner in the hall, with more than usual 
sumptuousness. 
Grandfather. The father of either of one's parents. 
Grandfather clause. Provision in a new law or regula
tion exempting those already in or a part of the existing 
system which is being regulated. An exception to a 
restriction that allows all those already doing something 
to continue doing it even if they would be stopped by the 
new restriction. A clause introduced into several of the 
constitutions of the southern states, limiting the right to 
vote to those who can read and write any article of the 
constitution of the United States, and have worked or 
been regularly employed in some lawful employment for 
the greater part of the year next preceding the time 
they offer to register unless prevented from labor or 
ability to read or write by physical disability, or who 
own property assessed at three hundred dollars upon 
which the taxes have been paid; but excepting those 
who have served in the army or navy of the United 
States or in the Confederate States in time of war, their 
lawful descendants in every degree, and persons of good 
character who understand the duties and obligations of 
citizenship under a republican form of government. 
One of the original purposes of the "grandfather" 
clause of the Motor Carrier Act was to permit the 
continued operation of carrier businesses already estab
lished prior to passage of the Act. Transamerican 
Freight Lines v. United States, D.C.Del., 51 F.Supp. 405, 
409. 
Grand jury. See Jury. 
Grand jury investigation. Investigations conducted by 
a grand jury into possible wrongdoing. Generally, such 
are conducted under the aegis of the prosecuting official 
and they may or may not result in indictments. See 
Jury (Grand jury). 
Grand larceny. See Larcency. 
Grandmother. The mother of either of one's parents. 
Grand remonstrance. A constitutional document 
passed by the British House of Commons in November, 
GRANT 
1641. It was in the nature of an appeal to the country, 
setting forth political grievances. It consisted of a 
preamble of 20 clauses and the body of the remonstrance 
with 206 clauses, each of which was voted separately. 
Its first remedial measure was against papists; its sec-
. ond demanded that all illegal grievances and exactions 
should be presented and punished at the sessions and 
assizes and that judges and justices should be sworn to 
the due execution of the Petition of Rights and other 
laws. The third was a series of precautions to prevent 
the employment of evil councillors. 
Grange. A farm furnished with barns, granaries, sta
bles, and all conveniences for husbandry. 
Grangearius Igreynj(iy)eriY::ls/. A keeper of a grange or 
farm. 
Granger Cases. A name applied to six cases decided by 
the supreme court of the United States in 1876, which 
are reported in Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 
77; Chicago, B. & Q. R. Co. v. Iowa, 94 U.S. 155, 24 L.Ed. 
94; Peik v. Ry. Co., 94 U.S. 164, 24 L.Ed. 97; Chicago, M. 
& St. P. R. Co. v. Ackley, 94 U.S. 179, 24 L.Ed. 99; 
Winona & St. Peter R. Co. v. Blake, 94 U.S. 180, 24 L.Ed. 
99; those most frequently cited being Munn v. Illinois, 
and C., B. & Q. R. Co. v. Iowa. They are so called 
because they arose out of an agitation commenced by 
the grangers which resulted in the enactment of statutes 
for the regulation of the tolls and charges of common 
carriers, warehousemen, and the proprietors of eleva
tors. The enforcement of these acts was resisted and 
their constitutionality questioned. The supreme court 
affirmed the common-law doctrine that private property 
appropriated by the owner to a public use is thereby 
subjected to public regulation. They also held that the 
right of regulation was not restrained by the prohibition 
of the fourteenth amendment of the federal constitution 
against the taking by the states of private property 
without due process of law. 
Grangia Igreynj(iY)::I/. A grange. 
Grant. To bestow; to confer upon some one other than 
the person or entity which makes the grant. Porto Rico 
Ry., Light & Power Co. v. Colom, C.C.A.Puerto Rico, 106 
F.2d 345, 354. To bestow or confer, with or without 
compensation, a gift or bestowal by one having control 
or authority over it, as of land or money. Palmer v. U. 
S. Civil Service Commission, D.C.Ill., 191 F.Supp. 495, 
537. 
A conveyance; i.e. transfer of title by deed or other 
instrument. Dearing v. Brush Creek Coal Co., 182 
Tenn. 302, 186 S.W.2d 329, 331. Transfer of property 
real or personal by deed or writing. Commissioner of 
Internal Revenue v. Plestcheeff, C.C.A.9, 100 F.2d 62, 64, 
65. A generic term applicable to all transfers of real 
property, including transfers by operation of law as well 
as voluntary transfers. White v. Rosenthal, 140 Cal. 
App. 184, 35 P.2d 154, 155. A technical term made use 
of in deeds of conveyance of lands to import a transfer. 
A deed for an incorporeal interest such as a reversion.

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GRANT 
As distinguished from a mere license, a grant passes 
some estate or interest, corporeal or incorporeal, in the 
lands which it embraces. 
To give or permit as a right or privilege; e.g. grant of 
route authority to a public carrier. 
By the word "grant," in a treaty, is meant not only a 
formal grant, but any concession, warrant, order, or 
permission to survey, possess, or settle, whether written 
or parol, express, or presumed from possession. Such a 
grant may be made by law, as well as by a patent 
pursuant to a law. Bryan v. Kennett, 113 U.S. 179, 5 
S.Ct. 407, 28 L.Ed. 908. 
In England, an act evidenced by letters patent under 
the great seal, granting something from the king to a 
subject. 
Land grant. See Land grant. 
Office grant. See Office. 
Private land grant. A grant by a public authority 
vesting title to public land in a private (natural) person. 
Public grant. A grant from the public; a grant of a 
power, license, privilege, or property, from the state or 
government to one or more individuals, contained in or 
shown by a record, conveyance, patent, charter, etc. 
Grant and to freight let. Operative words in a charter 
party, implying the placing of the vessel at the disposi
tion of the charterer for the purposes of the intended 
voyage, and generally, transferring the possession. 
Grant, bargain, and sell. Operative words in convey
ances of real estate. 
Grantee. One to whom a grant is made. 
Grant-in-aid. Sum of money given by a governmental 
agency to a person or institution for a specific purpose 
such as education or research. 
Granting clause. That portion of a deed or instrument 
of conveyance which contains the words of transfer of a 
present interest. New Home Building Supply Co. v. 
Nations, 259 N.C. 681, 131 S.E.2d 425. For example, the 
clause in an oil and gas lease that spells out what rights 
are given by the lessor to the lessee. Typically, an oil 
and gas lease granting clause will specify kinds of uses 
permitted and substances covered by the lease. 
Grant of patent. Written transfer of rights to an inven
tion or of a right to use or sell the thing patented. See 
also License; Patent. 
Grant of personal property. A method of transferring 
personal property, distinguished from a gift by being 
always founded on some consideration or equivalent. 
Its proper legal designation is an "assignment," or "bar
gain and sale." 
Grantor. The person by whom a grant is made. A 
transferor of property. The creator of a trust is usually 
designated as the grantor of the trust. See also Settlor. 
Grantor-grantee index. Master index, as kept in coun
ty recorder's office, to all recorded instruments. Such 
700 
index contains the volume and page number where the 
specific instrument can be located in the record books. 
Grantor's lien. Lien which exists for payment of pur
chase money when title is transferred. Kosters v. Hoo
ver, 69 App.D.C. 66, 98 F.2d 595, 596. Such lien arises 
when vendor has conveyed title to vendee without re
ceiving full consideration. Birnbaum v. Rollerama, Inc., 
232 N.Y.S.2d 188, 191. 
Grantor trusts. Trusts whereby the grantor retains 
control over the income or corpus, or both, to such an 
extent that such grantor will be treated as the owner of 
the property and its income for income tax purposes. 
The result is that the income and deductions attributa
ble to the trust is taxable to the grantor and not to the 
beneficiary who receives it. I.R.C. §§ 671-677. See also 
Clifford trust; Reversionary interest. 
Grant to uses. The common grant with uses super
added, which became the favorite mode of transferring 
realty in England. 
Grantz /gronts/grrendz/. In old English law, noblemen 
or grandees. 
Grass. Jargon name for marihuana. 
Grass hearth /grres har8/. In old English records, the 
grazing or turning up the earth with a plow. The name 
of a customary service for inferior tenants to bring their 
plows, and do one day's work for their lords. 
Grasson, or grassum /grres;}m/. A fine paid upon the 
transfer of a copyhold estate. See Gressume. 
Grass week. In old England, rogation week, so called 
anciently in the inns of court and chancery. 
Grass widow. A slang term for a woman separated 
from her husband by abandonment or prolonged ab
sence; a woman living apart from her husband. A 
divorcee. 
Gratian. Italian monk, circa 1151, who made a compila
tion of canon law. 
Gratification. A gratuity; a recompense or reward for 
services or benefits, given voluntarily, without solicita
tion or promise. 
Gratis /greyt;}s/grret;}s/. Without reward or considera
tion. Done or received freely or gratuitously. 
Gratis dictum / greyt;}s dikt;}m/. A voluntary assertion; 
a statement which a party is not legally bound to make, 
or in which he is not held to precise accuracy. 
Gratuitous. Given or granted without valuable or legal 
consideration. A term applied to deeds of conveyance 
and to bailments and other contracts. 
In old English law, voluntary; without force, fear, or 
favor. 
As to gratuitous Bailment; Contract; Deposit, see those 
titles. See also Gratis. 
Gratuitous allowance. A pension. Moran v. Firemen's 
and Policemen's Pension Fund Commission of Jersey 
City, 20 N.J.Misc. 479, 28 A.2d 885, 887; State ex reI.

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701 
Parker v. Board of Education of City of Topeka, 155 
Kan. 754, 129 P.2d 265, 267. 
Gratuitous bailee. Person to whom possession of per
sonal property is transferred and who furnishes no con
sideration for such transfer and hence is required to use 
great care to avoid liability for negligence. One respon
sible for goods entrusted to him or her when goods are 
damaged or lost through one's gross negligence. ChrIS
tensen v. Dady, 238 Ark. 577, 383 S.W.2d 283, 285. See 
also Bailee. 
Gratuitous guest. In motor vehicle law, a person riding 
at invitation of owner or authorized agent without pay
ment of a consideration or fare. Hart v. Hogan, 173 
Wash. 598, 24 P.2d 99. See Guest; Guest statute. 
Gratuitous licensee. Person who has permission 
though not an invitation to come on to the property of 
another and who has furnished no consideration for 
such permission. He is not an invitee, though, because 
of the permission, he is not a trespasser. 
Gratuitous passenger. See Gratuitous guest; Guest. 
Gratuitous promise. Promise made by one who has not 
received consideration for it. The absence of considera
tion makes such unenforceable as legal contracts. 
Gratuity. Something acquired or otherwise received 
without bargain or inducement. State ex reI. Stafford v. 
Fox-Great Falls Theatre Corporation, 114 Mont. 52, 132 
P.2d 689, 697. Something given freely or without rec
ompense; a gift. Something voluntarily given in return 
for a favor or especially a service, hence, a bounty; a tip; 
a bribe. McCook v. Long, 193 Ga. 299, 18 S.E.2d 488, 
490. See also Honorarium. 
Gravamen / gr;)veym;)n/. The material part of a griev
ance, complaint, indictment, charge, cause of action, etc. 
Williamson v. Pacific Greyhound Lines, 67 CaI.App.2d 
250, 153 P.2d 990, 991. The burden or gist of a charge; 
the grievance or injury specially complained of. 
In English Ecclesiastical law, a grievance complained 
of by the clergy before the bishops in convocation. 
Gravatio /gr;)veysh(iy)ow/. In old English law, an accu
sation or impeachment. 
Grave. An excavation in earth in which a dead body is 
or is to be buried, or place for interment of a corpse, 
such as a tomb, or a sepulcher. 
Graveyard. A cemetery; a place for the interment of 
dead bodies; sometimes defined in statutes as a place 
where a minimum number of persons (as "six or more") 
are buried. 
Graveyard insurance. A term applied to insurances 
fraudulently obtained (as, by false personation or other 
means) on the lives of infants, very aged persons, or 
those in the last stages of disease. Also occasionally 
applied to an insurance company which writes wager 
policies, takes extra-hazardous risks, or otherwise ex
ceeds the limits of prudent and legitimate business. 
Gravis / greyv;)s/ grrev;)s/ . Grievous; great. Ad grave 
damnum, to the grievous damage. 
GREAT CHARTER 
Gravius /greyviy;)s/. A graf; a chief magistrate or 
officer. A term derived from the more ancient "gratio," 
and used in combination with various other words, as an 
official title in Germany; as Margravius, Rheingravius, 
Landgravius, etc. 
Gravius est divinam quam temporalem lredere majes
tatem /greyviy;)s est d;)vayn;)m kwrem temp;)reyl;)m 
liyd;)riy mrej;)steyt;)m/. It is more serious to hurt divine 
than temporal majesty. 
Gray market goods. Foreign-manufactured goods, bear
ing a valid United States trademark, that are imported 
without the consent of the U.S. trademark holder. 
The gray market arises in three general contexts. In 
the first case, despite a domestic firm's having pur
chased from an independent foreign firm the rights to 
register and use the latter's trademark as a U.S. trade
mark and to sell its foreign manufactured products here, 
the foreign firm imports the trademarked goods and 
distributes them here, or sells them abroad to a third 
party who imports them here. 
In the second case, domestic firms register the trade
mark in the U.S. for goods which are manufactured 
abroad by an affiliated manufacturer. The foreign affil
iate may be a subsidiary of the U.S. firm, the parent 
company or an unincorporated manufacturing division 
of the U.S. firm. The gray market arises when the 
trademark holder or its foreign affiliate sells trade
marked articles overseas which are then imported into 
the U.S. by a third party without authorization of the 
U.S. trademark holder. 
In the third case, the domestic holder of a U.S. trade
mark authorizes an independent foreign manufacturer 
to use that trademark in a particular foreign location. 
The foreign manufacturer or a third party then imports 
and distributes the foreign made goods. K Mart Corp. v. 
Cartier, Inc., et aI., 486 U.S. 281, 108 S.Ct. 1811, 100 
L.Ed.2d 313. 
Gray's inn. An inn of court. See Inns of Court. 
Great. Considerable in magnitude, power, importance, 
intensity or degree. Thompson v. Anderson, 107 Utah 
331, 153 P.2d 665, 666. As used in various compound 
legal terms, this word generally means extraordinary, 
that is, exceeding the common or ordinary measure or 
standard, in respect to physical size, or importance, 
dignity, etc. 
For presumption great, see Proof. As to great Care; 
Pond; Seal; Tithes; see those titles. 
Great bodily injury. Bodily injury which involves a 
substantial risk of death, serious permanent disfigure
ment, or protracted loss or impairment of function of 
any part of an organ of the body. People v. Reed, 
Colo.App., 695 P.2d 806, 808. Term as used in statute 
stating when an assault and battery becomes aggrava
ted, is not susceptible of precise definition, but implies 
an injury of a graver and more serious character than 
ordinary battery. Herrington v. State, OkI.Cr., 352 P.2d 
931, 933. 
Great charter. Magna Charta (q.v.).

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GREAT-GRANDCHILDREN 
Great-grandchildren. Children of one's grandchildren. 
Great Law, The. "The Body of Laws of the Province of 
Pennsylvania and Territories thereunto belonging, Past 
at an Assembly held at Chester alias Upland, the 7th 
day of the tenth month, called 'December,' 1682." This 
was the first code of laws established in Pennsylvania, 
and is justly celebrated for the provision in its first 
chapter for liberty of conscience. 
Great tithes. In ecclesiastical law, the more valuable 
tithes: as, corn, hay, and wood. See Tithes. 
Great writ of liberty. The writ of "habeas corpus and 
subjiciendum", issuing at common law out of courts of 
Chancery, King's Bench, Common Pleas, and Exchequer. 
See Habeas corpus. 
Gree. Satisfaction for an offense committed or injury 
done. 
Greek cross. See Cross. 
Greek kalends. A colloquial expression to signify a 
time indefinitely remote, there being no such division of 
time known to the Greeks. 
Greenback. The popular name applied to United States 
paper currency. 
Green card. Registration card issued to alien as evi
dence of the alien's status as a permanent resident of 
the United States. 
Green cloth. In old English law, a board or court of 
justice held in the countinghouse of the king's (or 
queen's) household, and composed of the lord steward 
and inferior officers. It takes its name from the green 
cloth spread over the board at which it is held. 
Greenmail. In corporate takeovers, term that refers to 
payment by target company to buy back shares owned 
by potential acquirer at a premium over market. The 
acquirer in exchange agrees not to pursue its hostile 
takeover bid. A special tax is imposed on greenmail 
payments. I.R.C. § 5881. 
Green River ordinance. Type of local licensing law 
which protects persons from unwanted peddlers and 
salespersons who call on homes and business establish
ments. Green River v. Bunger, 50 Wyo. 52, 70, 58 P.2d 
456, 462. 
Green wax. In English law, the name of the estreats in 
the exchequer, delivered to the sheriff under the seal of 
that court which was impressed upon green wax. 
Greffiers Igrer(i)y�rz/greryey/. In French law, regis
trars, or clerks of the courts. They are officials attached 
to the courts to assist the judges in their duties. They 
keep the minutes, write out the judgments, orders, and 
other decisions given by the tribunals, and deliver copies 
thereof to applicants. 
Gregorian code. The code or collection of constitutions 
made by the Roman jurist Gregorius. See Codex Grego
rianus. 
Gregorian epoch. The time from which the Gregorian 
calendar or computation dates; i.e., from the year 1582. 
702 
Gremio Igreymiyow/. In Spanish law, a guild; an asso
ciation of workmen, artificers, or merchants following 
the same trade or business; designed to protect and 
further the interests of their craft. 
Gremium I griym(i)y�m/. Lat. The bosom or breast; 
hence, derivatively, safeguard or protection. In English 
law, an estate which is in abeyance is said to be in 
gremio legis lin griym(i)yow liyj�s/; that is, in the 
protection or keeping of the law. 
Grenville Act. The English statute 10 Geo. III, c. 16, by 
which the jurisdiction over parliamentary election peti
tions was transferred from the whole house of commons 
to select committees. 
Gressume Igres(y)�m/. In English law, a customary fine 
due from a copyhold tenant on the death of the lord. 
Spelled also ''grassum,'' ''grossome, '' and "gressame." 
Greva Igriyv�/. In old records, the seashore, sand, or 
beach. 
Greve I griyv I. A word of power or authority. 
Grievance. In labor law, a complaint filed by an em
ployee, or by his or her union representative, regarding 
working conditions and for resolution of which there is 
procedural machinery provided in the union contract. 
An injury, injustice or wrong which gives ground for 
complaint because it is unjust, discriminatory, and op
pressive. See Complaint. 
Grieved. Aggrieved. 
Grievous. Causing grief or sorrow, painful, afflictive, 
hard to bear, offensive, harmful. 
Grith. In Saxon law, peace; protection. 
Grithbrech, or grithbreche I griObriychl . Breach of the 
peace. 
Grithstole IgriOstuwl/. A place of sanctuary. 
Groat Igrowt/. oAn English silver coin (value four pence) 
issued from the fourteenth to the seventeenth century. 
Grocer Igrows�r/. In old English law, a merchant or 
trader who engrossed all vendible merchandise; an en
grosser. 
Grog-shop. A liquor saloon, bar, liquor store, or dram
shop; a place where intoxicating liquor is sold. 
Gross. Great; culpable; general; absolute. A thing in 
gross exists in its own right, and not as an appendage to 
another thing. Before or without diminution or deduc
tion. Whole; entire; total; as the gross sum, amount, 
weight-o pposed to net. State v. Hallenberg-Wagner 
Motor Co., 341 Mo. 771, 108 S.W.2d 398, 401. Not 
adjusted or reduced by deductions or subtractions. Con
trast with Net. 
Out of all measure; beyond allowance; flagrant; 
shameful; as a gross dereliction of duty, a gross injus
tice, gross carelessness or negligence. State Board of 
Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 
697. Such conduct as is not to be excused. 
As to gross Adventure; Average; Fault; Weight, see 
those titles.

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703 
Gross alimony. The terms "alimony in gross" and 
"gross alimony" are applied to an amount agreed upon 
or determined in full or in lieu of all alimony, and such 
amount is frequently payable in installments. Whitney 
v. Whitney, 15 Ill.App.2d 425, 146 N.E.2d 800, 804. See 
also Alimony. 
Gross earnings. Total income and receipts of a person 
or business before deductions and expenses. See Gross 
income. 
Grosse aventure Igrows avontyur/. Fr. In French 
marine law, the contract of bottomry. 
Gross estate. Income subject to federal income tax. 
The property owned by a decedent that will be subject to 
the Federal estate tax. It can be distinguished from the 
probate estate which is property actually subject to 
administration by the administrator or executor of an 
estate. I.RC. §§ 2031-2044. See also Adjusted gross 
estate. 
Gross income. Under I.RC. Section 61(a) gross income 
means all income from whatever source derived, includ
ing (but not limited to) the following items: (1) Compen
sation for services, including fees, commissions, and sim
ilar items; (2) Gross income derived from business; (3) 
Gains derived from dealings in property; (4) Interest; (5) 
Rents; (6) Royalties; (7) Dividends; (8) Alimony and 
separate maintenance payments; (9) Annuities; (10) In
come from life insurance and endowment contracts; (11) 
Pensions; (12) Income from discharge of indebtedness; 
(13) Distributive share of partnership gross income; (14) 
Income in respect of a decedent; and (15) Income from 
an interest in an estate or trust. See Heard v. C. I. R, 
C.A.Mo., 326 F.2d 962, 966. See also Gross profit. 
In the case of a manufacturing or merchandising 
business, gross income means gross profit (i.e., gross 
sales or gross receipts less cost of goods sold). 
Adjusted gross income. A determination peculiar to 
individual taxpayers. Generally, it represents gross in
come less business expenses, expenses attributable to 
the production of rent or royalty income and the long
term capital gain deduction. 
Gross income multiplier. Valuation technique used to 
estimate the valuation of real property. For example, 
the gross income times a given gross income multiplier 
to produce the estimated value. 
Gross income tax. Levy on total receipts of business 
without allowance for expenses and deductions. Any 
tax imposed on gross receipts; may include retail sales 
tax and general sales tax. 
Gross interest. Total interest payment by borrower 
including administrative, service, and insurance 
charges. 
Gross lease. See Lease. 
Gross margin. The difference between the amount of 
sales after returns and allowances and the cost of goods 
sold. 
GROSS UP 
Gross misdemeanor. Classification of a type of crime 
which, while not a felony, is ranked as a serious misde
meanor. 
Gross National Product (GNP). The market value 
within a nation for a year of all goods and services 
produced as measured by final sales of goods and servic
es to individuals, corporations, and governments plus 
the excess of exports over imports. The total market 
value of the output of all goods and services of a country 
without doublecounting, divided into four main catego
ries: consumption, gross private domestic investment, 
government purchases of goods and services, and net 
exports (exports minus imports). 
Gross neglect of duty. Type of serious nonfeasance or 
failure to attend to one's duties, either public or private. 
See Desertion; Non-support. 
Gross negligence. See Negligence. 
Grossome Igr6ws�m/. In old English law, a fine, or sum 
of money paid for a lease. Supposed to be a corruption 
of gersuma (q.v.). See Gressume. 
Gross premium. Net (insurance) premium plus loading 
for expenses and contingencies; i.e., the net premium 
represents the cost of insurance. Fox v. Mutual Ben. 
Life Ins. Co., C.C.A.Mo., 107 F.2d 715, 719. 
Gross profit. The difference between sales and the cost 
of goods sold before. allowance for operating expenses 
and income taxes. See also Gross income. 
Gross receipts. The total amount of money or the value 
of other considerations received from selling property or 
from performing services. New Mexico Enterprises, Inc. 
v. Bureau of Revenue, App., 86 N.M. 799, 528 P.2d 212, 
213. See also Gross income. 
Gross receipts tax. See Gross income tax. 
Gross revenue. Receipts of a business before deductions 
for any purpose except those items specifically exempt
ed. Public Service Co. v. City and County of Denver, 
153 Colo. 396, 387 P.2d 33, 36. See also Gross income. 
Gross sales. Total of all sales at invoice prices, not 
reduced by discounts, allowances, returns, commissions, 
or other adjustments. 
Gross spread. In finance, the difference between the 
price paid by an investment banker for an issue and the 
price paid by the buying public. 
Gross stress reaction. A term employed for an acute 
emotional reaction incident to severe environmental 
stress. 
Gross up. To add back to the value of the property or 
income received the amount of the tax that has been 
paid. For gifts made within three years of death, any 
gift tax paid on the transfer is added to the gross estate. 
I.RC. § 2035. Process by which U.S. corporations add 
pre-foreign tax income in federal income tax returns in 
order to acquire credit against federal taxes for foreign 
income taxes paid.

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GROUND 
Ground. Soil; earth; the earth's surface appropriated 
to private use and under cultivation or susceptible of 
cultivation. 
A foundation or basis; points relied on; e.g. "ground" 
for bringing civil action, or charging criminal defendant, 
or foundation for admissibility of evidence. See also 
Ground of action. 
Groundage. Old custom or tribute paid for the standing 
of shipping in port. See also Demurrage. 
Ground landlord. The grantor of an estate on which a 
ground-rent is reserved. 
Ground lease. A lease of vacant land, or land exclusive 
of any buildings on it, or unimproved real property. 
Usually a net lease. See also Ground rent; Lease. 
Groundless. See Frivolous. 
Ground of action. The basis of a suit; the foundation 
or fundamental state of facts on which an action rests 
(e.g. negligence; breach of contract); the real object of 
the plaintiff in bringing his suit. See also Cause of 
action. 
Ground rent. Rent paid to owner of land for use of 
property; normally to construct building on such. Gen
erally, rent is paid for a long-term lease (e.g. 99 year 
lease) with lessor retaining title to land. Such long
term lease is commonly renewable. Office buildings, 
hotels, and similar large structures in cities are com
monly built on land under such types of ground leases. 
A perpetual rent reserved to himself and his heirs, by 
the grantor of land in fee-simple, out of the land con
veyed. It is in the nature of an emphyteutic rent. Also, 
in English law, rent paid on a building lease. 
Ground water. Water in the subsoil or of a spring or 
shallow well. Underground streams and percolating 
waters. Woodsum v. Pemberton Tp., 172 N.J.Super. 
489, 412 A.2d 1064, 1067. 
Ground writ. Prior to the English common-law proce
dure act, 1852, c. 121 a ca. sa. or fi. fa. could not be 
issued into a county different from that in which the 
venue in the action was laid, without first issuing a writ, 
called a "ground writ," into the latter county, and then 
another writ, which was called a "testatum writ," into 
the former. 
Group annuity. Type of pension plan for employees 
under a master plan or contract in which employer each 
year buys a deferred annuity for each qualified employ
ee. The · individual members of the group hold certifi
cates as evidence of their coverage. 
Group boycott. A concerted refusal by traders to deal 
with other traders. Occurs when competitors combine 
to exclude a would-be competitor by threatening to with
hold their business from firms that deal with the poten
tial competitor. KOS v. Alyeska Pipeline Service Co., 
Alaska, 676 P.2d 1069, 1076. Such is a per se violation 
of Sherman Antitrust Act because it restrains freedom 
of parties to the boycott independently to decide wheth
er to deal with boycotted party. A single trader's refus
al to deal with another does not constitute a group 
704 
boycott. Arzee Supply Corp. of Conn. v. Ruberoid Co., 
D.C.Conn., 222 F.Supp. 237, 242. 
Grouping of contacts. In conflict of laws, when choice
of-law issue arises, court will apply the law of the 
jurisdiction most intimately concerned with the outcome 
of the litigation; also known as "center of gravity" 
approach or doctrine. Industrial Credit Co. v. J. A. D. 
Const. Co., 29 A.D.2d 952, 289 N.Y.S.2d 243. See also 
Center of gravity doctrine. 
Group life insurance. A contract of group life insur
ance is one between insurer and employer for benefit of 
employees. Crawford v. Metropolitan Life Ins. Co., Mo. 
App., 167 S.W.2d 915, 924. In its nature, group life 
insurance is similar, if not identical, with that form of 
insurance known as "term" life insurance. See Group 
policy; Insurance. 
Group libel. See Libel. 
Group policy. A contract of insurance whereby persons, 
usually employees of a business enterprise, are insured 
in consideration of a determined payment per period, so 
long as the person remains in employment and the 
premiums are paid. The employer holds a master policy 
from the insurer, and each employee participant holds a 
certificate as evidence of coverage. Martin v. Prier 
Brass Mfg. Co., Mo.App., 710 S.W.2d 466, 469. See also 
Insurance. 
Growing crop. A crop in the process of growth; though 
decisions differ as to whether such must be above the 
surface of the soil, and as to whether matured crops are 
"growing" crops. The cases as well differ as to whether 
pasturage grass is a growing crop. Growing crops are 
personal property. Estate of Ruwe v. Ruwe, 190 Neb. 
663, 211 N.W.2d 610, 613. 
Growth half-penny. In old English law, a rate paid in 
some places for the tithe of every fat beast, ox, or other 
unfruitful cattle. 
Growth stock. Type of security characterized by the 
prospect of increase in market value, but not necessarily 
with a good dividend return. 
Gruarii / gruweriyay /. The principal officers of a forest. 
Grub stake. In mining law, a contract between two 
parties by which one undertakes to furnish the neces
sary provisions, tools, and other supplies, and the other 
to prospect for and locate mineral lands and stake out 
mining claims thereon, the interest in the property thus 
acquired inuring to the benefit of both parties, either 
equally or in such proportion as their agreement may 
fix. 
G.S.A. General Services Administration. 
Guadalupe Hidalgo, Treaty of /triydiy ;}v gwad;}luwpey 
hi(y)daIgow/. A treaty between the United States and 
Mexico, terminating the Mexican War, dated February 
2, 1848. See Gadsden Purchase. 
Guadia /(g)weydiy;)/. In old European law, a pledge. A 
custom. Spelled also "wadia."

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705 
Guarantee. One to whom a guaranty is made. This 
word is also used, as a noun, to denote the contract of 
guaranty or the obligation of a guarantor, and, as a 
verb, to denote the action of assuming the responsibili
ties of a guarantor. 
Guarantee clause. That provision in a contract, deed, 
mortgage, etc. by which one person promises to pay the 
obligation of another. Also, the provision in Art. IV, 
§ 4, U.S.C onst., in which the federal government guaran
tees to every state a republican form of government and 
the protection of the federal government in the event of 
domestic violence. 
Guaranteed annual wage. Provision in labor agree
ment in which employer agrees to pay an employee a 
certain basic sum of money each year, even though the 
employee has an hourly or weekly salary arrangement. 
Guaranteed payment. See Payment guaranteed. 
Guaranteed sale. A guarantee in a real estate listing 
agreement which states that after a specified length of 
time, if the subject property has not been Gold, the real 
estate firm will buy it, under particular terms and 
conditions, usually at a substantial discount from the 
listed price. 
Guaranteed stock. See Stock. 
Guarantee stock. Guarantee stock of a building and 
loan association is a fixed non-withdrawal investment 
which guarantees to all other investors in the associa
tion a fixed rate of dividend or interest. Stumph v. 
Wheat Belt Building & Loan Ass'n of Pratt, 148 Kan. 25, 
79 P.2d 896, 899. 
Guarantor. One who makes a guaranty. Person who 
becomes secondarily liable for another's debt or perform
ance in contrast to a strict surety who is primarily liable 
with the principal debtor. One who promises to answer 
for a debt, default or miscarriage of another. Superior 
Wholesale Elec. Co. v. Cameron, 264 Cal.App.2d 488, 70 
Cal.Rptr. 636, 638. See also Surety. 
For purposes of U.C.C. Article 3, a party to an instru
ment who, by adding words to her signature, makes 
either a guaranty of collectibility or a guaranty of pay
ment. A guarantor is usually also an accommodation 
party. 
Guaranty, v. To undertake collaterally to answer for 
the payment of another's debt or the performance of 
another's duty, liability, or obligation; to assume the 
responsibility of a guarantor; to warrant. See Guaranty, 
n. 
Guaranty, n. A collateral agreement for performance of 
another's undertaking. An agreement in which the 
guarantor agrees to satisfy the debt of another (the 
debtor), only if and when the debtor fails to repay 
(secondarily liable). An undertaking or promise that is 
collateral to primary or principal obligation and that 
binds guarantor to performance in event of nonperform
ance by the principal obligor. Commercial Credit Corp. 
v. Chisholm Bros. Farm Equipment Co., 96 Idaho 194, 
525 P.2d 976, 978. 
Black's Law Dictionary 6th Ed.-16 
GUARANTY 
A promise to answer for payment of debt or perform
ance of obligation if person liable in first instance fails 
to make payment or perform obligation. An undertak
ing by one person to be answerable for the payment of 
some debt, or the due performance of some contract or 
duty, by another person, who himself remains liable to 
pay or perform the same. A promise to answer for the 
debt, default, or miscarriage of another person. See 
Guaranty of payment. 
A guaranty is a contract that some particular thing 
shall be done exactly as it is agreed to be done, whether 
it is to be done by one person or another, and whether 
there be a prior or principal contractor or not. A 
guarantor of a bill or note is said to be one who engages 
that the note shall be paid, but is not an indorser or 
surety. 
The contract of a guarantor is the guarantor's own 
separate contract. It is in the nature of a warranty by 
guarantor that the thing guaranteed to be done by the 
principal shall be done, not merely an engagement joint
ly with the principal to do the thing. See Suretyship, 
contract of; also Collateral guaranty, below. 
Synonyms 
The terms guaranty and suretyship are sometimes 
used interchangeably; but they should not be confound
ed. The distinction between contract of suretyship and 
contract of guaranty is whether or not the undertaking 
is a joint undertaking with the principal or a separate 
and distinct contract; if it is the former it is one of 
"suretyship", and if the latter, it is one of "guaranty". 
General Finance Corp. of Atlanta, Northeast v. Welborn, 
98 Ga.App. 280, 105 S.E.2d 386, 389. 
Guaranty and warranty are derived from the same 
root, and are in fact etymologically the same word, the 
"g" of the Norman French being interchangeable with 
the English "w." They are often used colloquially and 
in commercial transactions as having the same significa
tion, as where a piece of machinery or the produce of an 
estate is "guarantied" for a term of years, "warranted" 
being the more appropriate term in such a case. A 
distinction is also sometimes made in commercial usage, 
by which the term "guaranty" is understood as a collat
eral warranty (often a conditional one) against some 
default or event in the future, while the term "warran
ty" is taken as meaning an absolute undertaking in 
prresenti, against the defect, or for the quantity or quali
ty contemplated by the parties in the sub ject-matter of 
the contract. But in strict legal usage the two terms are 
widely distinguished in this, that a warranty is an 
absolute undertaking or liability on the part of the 
warrantor, and the contract is void unless it is strictly 
and literally performed, while a guaranty is a promise, 
entirely collateral to the original contract, and not im
posing any primary liability on the guarantor, but bind
ing him to be answerable for the failure or default of 
another. See Warranty. 
Absolute guaranty. An unconditional undertaking by a 
guarantor that debtor will pay debt or perform the 
obligation. An unconditional promise of payment or

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GUARANTY 
performance of principal contract on default of principal 
debtor or obligor. Robey v. Walton Lumber Co., 17 
Wash.2d 242, 135 P.2d 95, 102. 
Collateral guaranty. A contract by which the guarantor 
undertakes, in case the principal fails to do what he has 
promised or undertaken to do, to pay damages for such 
failure; distinguished from an engagement of suretyship 
in this respect, that a surety undertakes to do the very 
thing which the principal has promised to do, in case the 
latter defaults. 
Conditional guaranty. One which depends upon some 
extraneous event, beyond the mere default of the princi
pal, and generally upon notice of the guaranty, notice of 
the principal's default, and reasonable diligence in ex
hausting proper remedies against the principal. One 
which is not immediately enforceable against the guar
antor upon default of the principal but one in which the 
creditor must take some action in order that liability 
arise. Shur-Gain Feed Division William Davies Co., Inc. 
v. Huntsville Production Credit Ass'n, Ala.Civ.App., 372 
So.2d 1317 , 1320. 
Continuing guaranty. A guaranty which is not limited 
to a particular transaction but which is intended to 
cover future transactions until revoked. Farmers-Peo
ple Bank v. Clemmer, Tenn., 519 S.W.2d 801, 805. One 
relating to a future liability of the principal, under 
successive transactions, which either continue the prin
cipal's liability or from time to time renew it after it has 
been satisfied. 
Special guaranty. A guaranty which is available only to 
the particular person to whom it is offered or addressed; 
as distinguished from a general guaranty, which will 
operate in favor of any person who may accept it. 
Guaranty company. A corporation authorized to trans
act the business of entering into contracts of guaranty 
and suretyship; as one which, for fixed premiums, be
comes surety on judicial bonds, fidelity bonds, and the 
like. 
Guaranty bond. See Bond. 
Guaranty clause. See Guarantee clause. 
Guaranty fund. Statutes have made provision for de
positors' guaranty funds to be raised, in whole or in 
part, by assessments on banks and to be used to pay the 
depositors of an insolvent bank. Noble State Bank v. 
Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 11 2; Shal
lenberger v. Bank, 219 U.S. 11 4, 31 S.Ct. 189, 55 L.Ed. 
11 7; Assaria State Bank v. Dolley, 219 U.S. 121, 31 S.Ct. 
189, 55 L.Ed. 123; Abilene Nat. Bank v. Dolley, 228 U.S. 
1, 33 S.Ct. 409, 57 L.Ed. 707. Most bank deposits are 
insured to a specified limit by the Federal Deposit Insur
ance Corporation (q.v.). 
Guaranty insurance. See Insurance. 
Guaranty of payment. A party to an instrument who, 
by adding "payment guaranteed" or equivalent words to 
signature, affects contract of liability on the instrument 
such that, regardless of the capacity in which he signs, 
706 
he "engages that if the instrument is not paid when due 
he will pay it according to its tenor without resort by 
the holder to any other party." U.C.C. § 3-416(1). A 
person who makes a guaranty of payment is a guaran
tor, specifically a guarantor of payment. 
Guardage. A state of wardship. 
Guardian. A person lawfully invested with the power, 
and charged with the duty, of taking care of the person 
and managing the property and rights of another per
son, who, for defect of age, understanding, or self-con
trol, is considered incapable of administering his own 
affairs. One who legally has responsibility for the care 
and management of the person, or the estate, or both, of 
a child during its minority. See also Next friend. 
Classification 
A testamentary guardian is one appointed by the deed 
or last will of the child's father or mother; while a 
guardian by election is one chosen by the infant in a case 
where he or she would otherwise be without one. 
A general guardian is one who has the general care 
and control of the person and estate of a ward; while a 
special guardian is one who has special or limited pow
ers and duties with respect to a ward, e.g., a guardian 
who has the custody of the estate but not of the person, 
or vice versa, or a guardian ad litem. 
A domestic guardian is one appointed at the place 
where the ward is legally domiciled; while a foreign 
guardian derives authority from appointment by the 
courts of another state, and generally has charge only of 
such property as may be located within the jurisdiction 
of the power appointing him. 
A guardian ad litem is a special guardian appointed by 
the court in which a particular litigation is pendi�g to 
represent an infant, ward or unborn person in that 
particular litigation, and the status of guardian ad litem 
exists only in that specific litigation in which the ap
pointment occurs. Bowen v. Sonnenburg, Ind.App., 411 
N .E.2d 390, 396. 
A guardian by estoppel is one who assumes to act as 
guardian without legal authority; similar to a guardian 
de son tort (see below). 
A guardian by nature, at common law, is the father, 
and, on his death, the mother, of a child. Daniels v. 
Metropolitan Life Ins. Co., 135 Pa.Super. 450, 5 A.2d 
608, 611. This guardianship extends only to the custody 
of the person of the child to the age of majority. Some
times called "natural guardian". The common law pref
erence for the father has been changed by statute in 
many states; e.g., in New York mothers and fathers are 
now equal in their rights of guardianship over their 
children. N.Y.Dom.Rel.L. § 81. 
A guardian by statute or testamentary guardian is a 
guardian appointed for a child by the deed or last will of 
the father, and who has the custody both of his person 
and estate until the attainment of full age. This kind of 
guardianship is founded on the statute of 12 Car. II, c. 
24, and has been extensively adopted in this country. 1 
Bl.Comm. 462.

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707 
A guardian for nurture is the father, or, at his de
cease, the mother, of a child. This kind of guardianship 
at common law extended only to the person, and ended 
when the infant arrived at the age of fourteen. 1 
Bl.Comm. 461. 
With respect to a child born out of wedlock, the child's 
mother was the guardian by nurture and had the sole 
right to the custody and control of her child. Morey v. 
Peppin, Minn., 375 N.W.2d 19. Today, statutes have 
superseded the common law in this regard. 
A guardian de son tort, sometimes described as "quasi 
guardian" or "guardian by estoppel," is one who as
sumes to act as guardian without valid authority. Sim
ilar to guardian by estoppel (see above). 
Guardian in chivalry. In the tenure by knight's service, 
in the feudal law, if the heir of the feud was under the 
age of twenty-one, being a male, or fourteen, being a 
female, the lord was entitled to the wardship (and mar
riage) of the heir, and was called the "guardian in 
chivalry." This wardship consisted in having the custo
dy of the body and lands of such heir, without any 
account of the profits. 2 Bl.Comm. 67. 
Guardian in socage. At the common law, this was a 
species of guardian who had the custody of lands coming 
to the infant by descent, as also of the infant's person, 
until the latter reached the age of fourteen. Such 
guardian was always "the next of kin to whom the 
inheritance cannot possibly descend." 1 Bl.Comm. 461. 
Natural guardian. At common law, the father of the 
child, or the mother if the father be dead. In most 
states, statutes have superseded this rule and mothers 
and fathers are equal in their rights of guardianship 
over their children. E.g., N.Y.Dom.Rel.L. § 81. 
Guardian of the peace /gard(i)y:m �v O� piys/. A ward
en or conservator of the peace. 
Guardian of the poor. In English law, a person elected 
by the ratepayers of a parish to have the charge and 
management of the parish work-house or union. 
Guardian of the spiritualities / gard(i)y�n �v O� spiri
tyuwrebtiyz/. In England, the person to whom the 
spiritual jurisdiction of any diocese is committed during 
the vacancy of the see. 
Guardian of the temporalities / gard(i)y�n �v O� 
temp�rrel�tiyz/. The person to whose custody a vacant 
see or abbey was committed by the crown. 
Guardian or warden of the cinque ports / gard(i)y�n �v 
O� silJk p6rts/w6rd�n 0/. A magistrate who has the juris
diction of the ports or havens which are called the 
"Cinque Ports" (q.v.). This office was first created in 
England, in imitation of the Roman policy, to strengthen 
the sea-coasts against enemies, etc. 
Guardianship. The office, duty, or authority of a guard
ian. Also the relation subsisting between guardian and 
ward. A legal arrangement under which one person (a 
guardian) has the legal right and duty to care for anoth
er (the ward) and his or her property. A guardianship is 
established because of the ward's inability to legally act 
GUEST STATUTE 
on his or her own behalf [e.g., because of minority (he or 
she is not of age) or mental or physical incapacity]. See 
Guardian; Ward. 
Guardianus / gardiyeyn�s/. A guardian, warden, or 
keeper. 
Guarentigio /garentiyhiyow/. In Spanish law, a written 
authorization to a court to enforce the performance of 
an agreement in the same manner as if it had been 
decreed upon regular legal proceedings. 
Guarnimentum / garn�ment�m/. In old European law, 
a provision of necessary things. A furnishing or gar
nishment. 
Guastald. In old English law, one who had the custody 
of the royal mansions. 
Gubernator /gyuwb�rneyt�r/. Lat. In Roman law, the 
pilot or steersman of a ship. 
Guerpi, Guerpy. L. Fr. Abandoned; left; deserted. 
Guerra, guerre /ger(�)/. War. 
Guest. A person receiving lodging for pay at an inn, 
motel, or hotel on general undertaking of keeper there
of. A traveler who lodges with the consent of the 
keeper or owner. 
Guest is a person who is received and entertained at 
one's home, club, etc., and who is not a regular member. 
Stadelmann v. Glen Falls Ins. Co. of Glen Falls, 5 
Mich.App. 536, 147 N.W.2d 460, 463. See also Social 
guest. 
A "guest" in an automobile is one who takes ride in 
automobile driven by another person, merely for his own 
pleasure or on his own business, and without making 
any return or conferring any benefit on automobile 
driver. Guest is used to denote one whom owner or 
possessor of vehicle invites or permits to ride with him 
as gratuity, without any financial return except such 
slight benefits as are customarily extended as part of 
ordinary courtesies of road. Rothwell v. Transmeier, 
206 Kan. 199, 477 P.2d 960, 963, 966. See Guest statute. 
Business guest. See Business. 
Guest statute. Many states have statutes referred to as 
"automobile guest statutes," which provide that opera
tors of automobiles shall only be liable for injuries to 
guests carried gratuitously for gross or willful negli
gence, willful or wanton misconduct, or the like, with a 
further provision in some statutes continuing liability 
for want of ordinary care in case of hosts operating 
automobiles while intoxicated. In recent years however 
there has been a trend towards repealing or delimiting 
such statutes. 
While a typical guest statute excludes all non-paying 
guests from suing the host-driver or owner for damages 
arising out of the host-driver's ordinary negligence, cer
tain statutes are more narrow in their scope; e.g. pre
cluding only those guests without payment who are 
related within the second degree of consanguinity or 
affinity to the owner or operator from suing.

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GUEST STATUTE 
A "guest," under provisions of guest statute, is a 
recipient of the voluntary hospitality of the driver or 
owner, that is, one who is invited or permitted by owner 
or possessor of automobile to ride with owner-possessor 
as a gratuity. Walker v. Bounds, Tex.Civ.App., 510 
S.W.2d 392, 394. 
Guidage /gayd�j/. In old English law, that which was 
given for safe conduct through a strange territory, or 
another's territory. The office of guiding of travelers 
through dangerous and unknown ways. 
Guidon de la mer / giyd6wn d� Iii mer /. The name of a 
treatise on maritime law, by an unknown author, sup
posed to have been written about 1671 at Rouen, and 
considered, in continental Europe, as a work of high 
authority. 
Guild. A voluntary association of persons, pursuing the 
same trade, art, profession or business, such as printers, 
goldsmiths, artists, wool merchants, etc., united under a 
distinct organization of their own, analogous to that of a 
corporation, regulating the affairs of their trade or busi
ness by their own laws and rules, and aiming, by cooper
ation and organization, to protect and promote the inter
ests of their common vocation. Goodman v. Federal 
Trade Commission, C.A.9, 244 F.2d 584, 594. 
In medieval history these fraternities or guilds played 
an important part in the government of some states; as 
at Florence, in the thirteenth and following centuries, 
where they chose the council of government of the city. 
The word is said to be derived from the Anglo-Saxon 
"gild" or "geld," a tax or tribute, because each member 
of the society was required to pay a tax towards its 
support. 
Guildhall. The hall or place of meeting of a guild, or 
gild. 
The place of meeting of a municipal corporation. The 
mercantile or commercial gilds of the Saxons are sup
posed to have given rise to the present municipal corpo
rations of England, whose place of meeting is still called 
the "Guildhall." 
Guildhall sittings. The sittings held in the Guildhall of 
the city of London for city of London causes. 
Guild rents. In England, rents payable to the crown by 
any guild, or such as formerly belonged to religious 
guilds, and came to the crown at the general dissolution 
of the monasteries. 
Guillotine / gil�tiyn/ giy�tiyn/ . An instrument for de
capitation, used in France for the infliction of the death 
penalty on convicted criminals, consisting, essentially, of 
a heavy and weighted knife-blade moving perpendic
ularly between grooved posts, which is made to fall from 
a considerable height upon the neck of the sufferer, 
immovably fixed in position to receive the impact. 
Guilt. In criminal law, that quality which imparts crim
inality to a motive or act, and renders the person ame-
708 
nable to punishment by the law. Responsibility for 
offense. That disposition to violate the law which has 
manifested itself by some act already done. The oppo
site of innocence. 
Guilty. Having committed a crime or other breach of 
conduct; justly chargeable with a crime; responsible for 
a crime or tort or other offense or fault. The word used 
by an accused in pleading or otherwise answering to an 
indictment when he confesses to the crime of which he 
is charged, and by the jury in convicting a person on 
trial for a particular crime. The connotation of such 
word is "evil," "wrongdoing," or "culpability." Hilkert 
v. Canning, 58 Ariz. 290, 11 9 P.2d 233, 236. 
Guilty plea. Formal admission in court as to guilt of 
having committed criminal act charged which a defen
dant may make if he or she does so intelligently and 
voluntarily; i.e., accused can only make such plea after 
he or she has been fully advised of rights and court has 
determined that accused understands such rights and is 
making plea voluntarily. Boykin v. Alabama, 395 V.S. 
238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Fed.R.Crim.P.11. It 
is equivalent to and is binding as a conviction after trial 
on the merits, and it has the same effect in law as a 
verdict of guilt and authorizes imposition of punishment 
prescribed by law. State v. Cantrell, 250 S.C. 376, 158 
S.E.2d 189, 191. See also Alford plea; Nolo contendere; 
Plea; Plea bargaining. 
Guilty verdict. Formal pronouncement by jury that 
they adjudge the defendant guilty of the offense 
charged. 
Guinea / giniy /. A coin formerly issued by the English 
mint, but all these coins were called in the time of Wm. 
IV. The word now means only the sum of £1 Is., in 
which denomination the fees of counsel are always giv
en. 
Gun. Portable firearm such as a rifle, pistol, revolver, 
shotgun, carbine, etc. See also Firearm. 
Gun control laws. Laws which regulate the sale and 
use of guns and firearms in a variety of ways such as 
prohibitions against carrying concealed weapons or re
quiring a license to buy or possess a handgun or any 
type of firearm. e.g. N.Y. Penal Law §§ 265.11, 265.12; 
M.G.L.A. (Mass.) Ch. 140; 18 V.S.C.A. §§ 921-928. 
Gwalstow. A place of execution. 
Gwayf /gweyf/. In old English law, waif, or waived; 
that which has been stolen and afterwards dropped in 
the highway for fear of a discovery. 
Gyltwite, or guiltwit /giltw�t/. Sax. Compensation for 
fraud or trespass. 
Gynecocracy. . Government by a woman; a state in 
which women are legally capable of the supreme com
mand; e.g. in Great Britain (Queen). 
Gyves /jayvs/. Fetters or shackles for the legs.

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H 
H. This letter, as an abbreviation, stands for Henry (a 
king of that name) in the citation of English statutes. 
In the Year Books, it is used as an abbreviation for 
Hilary term. In tax assessments and other such official 
records, "h" may be used as an abbreviation for "house". 
Also, abbreviation for House, as in House of Representa
tives, House Report, House Bill. 
H.A. An abbreviation for hoc anno, this year, in this 
year. 
Habe, or have. Lat. A form of the salutatory expres
sion ':Ave" (hail) in the titles of the constitutions of the 
Theodosian and Justinian Codes. 
Habeas corpora juratorum. Iheybiy;}s korp;}r;} jur;}
tor;}m/. In old English law, a writ commanding the 
sheriff to bring up the persons of jurors, and, if need 
were, to distrain them of their lands and goods, in order 
to insure or compel their attendance in court on the day 
of trial of a cause. It issued from the Common Pleas, 
and served the same purpose as a distringas jura tores in 
the King's Bench. Such writ was abolished by the 
C.L.P. Act, 1852, § 104. 
Habeas corpus Iheybiy;}s korp;}s/heybiyzO I. Lat. (You 
have the body.) The name given to a variety of writs (of 
which these were anciently the emphatic words), having 
for their object to bring a party before a court or judge. 
In common usage, and whenever these words are used 
alone, they are usually understood to mean the habeas 
corpus ad subjiciendum (see infra). U. S. v. Tod, 263 
U.S. 149, 44 S.Ct. 54, 57, 68 L.Ed. 221. The primary 
function of the writ is to release from unlawful impris
onment. People ex reI. Luciano v. Murphy, 160 Misc. 
573, 290 N.Y.S. 1011. The office of the writ is not to 
determine prisoner's guilt or innocence, and only issue 
which it presents is whether prisoner is restrained of his 
liberty by due process. Ex parte Presnell, 58 Okl.Cr. 50, 
49 P.2d 232. 
ed that the writ now extends to all constitutional chal
lenges. 
See also Post-conviction remedies with respect to re
view of sentence of federal prisoner. 
Habeas corpus acts. The English statute of 31 Car. II, 
c. 2, is the original and prominent habeas cor pus act. It 
was amended and supplemented by St. 56 Geo. III, c. 
100. Similar statutes have been enacted in all the 
United States. This act is regarded as the great consti
tutional guaranty of personal liberty. See Art. I, § 9, 
U.S.Const.; 28 U.S.C.A § 2241 et seq. 
Habeas corpus ad deliberandum et recipiendum 
Iheybiy;}s korp;}s red d;}lib;}rrend;}m et r;}sipiyend;}m/. A 
writ which is issued to remove, for trial, a person con
fined in one county to the county or place where the 
offense of which he is accused was committed. Thus, it 
has been granted to remove a person in custody for 
contempt to take his trial for perjury in another county. 
Habeas corpus ad faciendum et recipiendum Ihey
biy;}s korp;}s red fres(h)iyend;}m et r;}sipiyend;}m/. A writ 
issuing in civil cases to remove the cause, as also the 
body of the defendant, from an inferior court to a 
superior court having jurisdiction, there to be disposed 
of. It is also called "habeas cor pus cum causa. " 
Habeas corpus ad prosequendum Iheybiy;}s korp;}s red 
pros;}kwend;}m/. A court issues a writ of "habeas cor
pus ad prosequendum" when it is necessary to bring a 
person who is confined for some other offense before the 
issuing court for trial. U.S. v. Cogdell, C.A, 585 F.2d 
1130, 1132, 190 U.S.App.D.C. 185. 
Habeas corpus ad respondendum Iheybiy;}s korp;}s red 
respondend;}m/. A writ which is usually employed in 
civil cases to remove a person out of the custody of one 
court into that of another, in order that he may be sued 
and answer the action in the latter. 
A form of collateral attack. An independent proceed- Habeas corpus ad satisfaciendum Iheybiy;}s korp;}s red 
ing instituted to determine whether a defendant is being sred;}sfres(h)iyend;}m/. In English practice, a writ which 
unlawfully deprived of his or her liberty. It is not an issues when a prisoner has had judgment against him in 
appropriate proceeding for appeal-like review of discre- an action, and the plaintiff is desirous to bring him up to 
tionary decisions of a lower court. Sheriff, Clark Coun- some superior court, to charge him with process of 
ty v. Hatch, 100 Nev. 664, 691 P.2d 449, 450. For execution. 
federal habeas corpus procedures, see 28 U.S.C.A Habeas corpus ad subjiciendum Iheybiy;}s korp;}s red 
§ 2241 et seq. s;}bjis(h)iyend;}m/. A writ directed to the person detain-
Initially, the writ only permitted a prisoner to chal- ing another, and commanding him to produce the body 
lenge a state conviction on constitutional grounds that of the prisoner, or person detained. This is the most 
related to the jurisdiction of the state court. But the common form of habeas corpus writ, the purpose of 
scope of the inquiry was gradually expanded, and Fay v. which is to test the legality of the detention or imprison-
Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, conclud- ment; not whether he is guilty or innocent. This writ is 
709

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HABEAS CORPUS AD SUBJICIENDUM 
guaranteed by U.S.Const. Art. I, § 9, and by state consti
tutions. See 28 U.S.C.A. § 2241 et seq. for federal 
habeas corpus procedures. 
This is the well-known remedy in England and the 
United States for deliverance from illegal confinement, 
called by Sir William Blackstone the most celebrated 
writ in the English law, and the great and efficacious 
writ in all manner of illegal confinement. 3 B1.Comm. 
129. The "great writ of liberty," issuing at common law 
out of courts of Chancery, King's Bench, Common Pleas, 
and Exchequer. 
Habeas corpus ad testificandum Iheybiy;}s korp;}s red 
test;}f;}krend;}m/. The writ, meaning "you have the body 
to testify", used to bring up a prisoner detained in a jail 
or prison to give evidence before the court. Hottle v. 
District Court in and for Clinton County, 233 Iowa 904, 
11 N.W.2d 30, 34; 3 B1.Comm. 130. 
Habeas corpus cum causa Iheybiy;}s korp;}s k;}m koz;} I . 
(You have the body, with the cause.) Another name for 
the writ of habeas corpus ad faciendum et recipiendum 
(q.v.). 
Habemus optimum testem, confitentem reum 
Ih;}biym;}s opt;}m;}m test;}m, k;}nf;}dent;}m riy;}m/. We 
have the best witness,-a confessing defendant. 
Habendum clause Ih;}bend;}m kloz/. Portion of deed 
beginning with the words "To have and to hold". Ban
nin v. Peck, 266 App.Div. 209, 41 N.Y.S.2d 668, 670. 
The clause usually following the granting part of the 
premises of a deed, which defines the extent of the 
ownership in the thing granted to be held and enjoyed 
by the grantee. New York Indians v. U. S., 170 U.S. 1, 
18 S.Ct. 531, 42 L.Ed. 927. The office of the "haben
dum" is properly to determine what estate or interest is 
granted by the deed, though office may be performed by 
the premises, in which case the habendum may lessen, 
enlarge, explain, or qualify, but not totally contradict or 
be repugnant to, estate granted in the premises. Clar
idge v. Phelps, 105 Ind.App. 344, 11 N.E.2d 503, 504. 
Habendum et tenendum Ih;}bend;}m et t;}nend;}m/. In 
old conveyancing "to have and to hold". Formal words 
in deeds of land from a very early period. 
Habentes homines Ih;}bentiyz hom;}niyz/. In old Eng
lish law, rich men; literally, having men. The same 
with fcesting-men (q. v.). 
Habere Ih;}biriy/. Lat. In the civil law, to have. Some
times distinguished from tenere (to hold), and possidere 
(to possess); habere referring to the right, tenere to the 
fact, and possidere to both. 
Habere facias possessionem Ih;}biriy feys(h)iy;}s 
p;}zes(h)iyown;}m/. Lat. That you cause to have posses
sion. The name of the process commonly resorted to by 
the successful party in an action of ejectment, for the 
purpose of being placed by the sheriff in the actual 
possession of the land recovered. It is commonly termed 
simply "habere facias," or "hab. fa. " 
Habere facias seisinam Ih;}biriy feys(h)iy;}s siyz;}n;}m/. 
L. Lat. That you cause to have seisin. The writ of 
710 
execution in real actions, directing the sheriff to cause 
the demandant to have seisin of the lands recovered. It 
was the proper process for giving seisin of a freehold, as 
distinguished from a chattel interest in lands. 
Habere facias visum Ih;}biriy feys(h)iy;}s vayz;}m/. Lat. 
That you cause to have a view. A writ to cause the 
sheriff to take a view of lands or tenements. 
Habere licere Ih;}biriy l;}siriy I. Lat. In Roman law, to 
allow [one] to have [possession]. This phrase denoted 
the duty of the seller of property to allow the purchaser 
to have the possession and enjoyment. For a breach of 
this duty, an actio ex empto might be maintained. 
Habeto tibi res tuas Ih;}biytow tibay riyz tyuw;}s/. Lat. 
Have or take your effects to yourself. One of the old 
Roman forms of divorcing a wife. 
Habilis Ihreb;}l;}s/. Lat. Fit; suitable; active; useful (of 
a servant). Proved; authentic (of Book of Saints). 
Fixed; stable (of authority of the king). 
Habit. A disposition or condition of the body or mind 
acquired by custom or a usual repetition of the same act 
or function. The customary conduct, to pursue which 
one has acquired a tendency, from frequent repetition of 
the same acts. Knickerbocker Life Ins. Co. v. Foley, 105 
U.S. 350, 26 L.Ed. 1055. A regular practice of meeting a 
particular kind of situation with a certain type of con
duct, or a reflex behavior in a specific set of circum
stances. Frase v. Henry, C.A.Kan., 444 F.2d 1228, 1232. 
Course of behavior of a person regularly repeated in like 
circumstances. Evidence of a specific habit may be 
admissible to show specific conduct or acts within the 
sphere of the developed habit. Fed.Evid. R. 406. See 
also Custom and usage; Habitual. 
Habitable. See Habitability. 
Habitability. Condition of premises which permits in
habitant to live free of serious defects to health and 
safety. 
Warr anty of habitability. Under "implied warranty of 
habitability," applicable to new housing, the builder-ven
dor warrants that he has complied with the building 
code of the area in which the structure is located and 
that the residence was built in a workmanlike manner 
and is suitable for habitation. Duncan v. Schuster-Gra
ham Homes, Inc., 39 Colo.App. 92, 563 P.2d 976, 977. In 
most states, either by statute or case law, every landlord 
is held to impliedly warrant that the residential premis
es rented are fit for human habitation (i.e. free of 
violations of building and sanitary codes) at the time of 
the inception of the tenancy, and will continue as such 
during the term. Boston Housing Authority v. Heming
way et aI., 363 Mass. 184, 293 N.E.2d 831; Hinson v. 
Delis, 26 Ca1.App.3d 62, 102 Ca1.Rptr. 661. See Uniform 
Residential Landlord and Tenant Law, § 2.104. See also 
Constructive eviction; Home Owners Warranty. 
Habitable repair. A covenant by a lessee to "put the 
premises into habitable repair" binds him to put them 
into such a state that they may be occupied, not only 
with safety, but with reasonable comfort, for the pur
poses for which they are taken. See Habitability.

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711 
Habitancy. That fIXed place of abode to which a person 
intends to return habitually when absent. Owens v. 
Huntling, C.C.A.Or., 115 F.2d 160, 162. Settled dwelling 
in a given place; fixed and permanent residence there. 
Place of abode; settled dwelling; residence; house. 
Moore v. Tiller, Ky., 409 S.W.2d 813, 815. 
It is difficult to give an exact definition of "habitan
cy." In general terms, one may be designated as an 
"inhabitant" of that place which constitutes the princi
pal seat of his residence, of his business, pursuits, con
nections, attachments, and of his political and municipal 
relations. The term, therefore, embraces the fact of 
residence at a place, together with the intent to regard 
it and make it a home. The act and intent must concur. 
See also Domicile; Residence. 
Habitant. Fr. In French and Canadian law, a resident 
tenant; a settler; a tenant who kept hearth and home 
on the seigniory. A native of Canada of French descent, 
particularly of the peasant or farming class. 
Habitatio Ihreb�teysh(iy)ow/. Lat. In the civil law, the 
right of dwelling; the right of free residence in another's 
house. 
Habitation. Place of abode; dwelling place; residence. 
In the civil law, the right of a person to live in the 
house of another without prejudice to the property. It 
differed from a usufruct, in that the usufructuary might 
apply the house to any purpose, as of a business; where
as the party having the right of habitation could only 
use it for the residence of himself and family. 
See Domicile; Habitancy; Residence. 
Habitual. Customary, usual, of the nature of a habit. 
Synonyms are customary, common, regular; while its 
antonyms are unusual, unwonted, extraordinary, rare. 
Illinois Bankers Life Ass'n v. Theodore, 47 Ariz. 314, 55 
P.2d 806, 811. Formed or acquired by or resulting from 
habit; frequent use or custom. See also Habit. 
Habitual criminal. A recidivist (q.v.). A legal category 
created by statute in many states by which more severe 
penalties can be imposed on offenders who have multi
ple felony convictions. In general, habitual offender 
statutes (which differ from state-to-state) impose greater 
sentences on offender for repeated crimes, with life 
imprisonment being imposed upon commission of sever
al felonies. (see e.g. 21 U.S.C.A. § 848 repeat drug of
fenders). The criminal history of a defendant is an 
important factor in imposing sentence under federal 
sentencing guidelines. 18 U.S.C.A. § 3553. See also 
Model Penal Code § 7.03. 
Habitual drunkenness or intoxication. One who fre
quently and repeatedly becomes intoxicated by excessive 
indulgence in intoxicating liquor so as to acquire a fixed 
habit and an involuntary tendency to become intoxicat
ed as often as the temptation is presented, even though 
he remains sober for days or even weeks at a time. A 
person given to inebriety or the excessive use of intoxi
cating drink, who has lost the power or the will, by 
frequent indulgence, to control his appetite for it. The 
custom or habit of getting drunk; the constant indul
gence in stimulants, whereby intoxication is produced; 
HlBREDE ABDUCTO 
not the ordinary use, but the habitual use of them; the 
habit should be actual and confirmed, but need not be 
continuous, or even of daily occurrence. That degree of 
intemperance from the use of intoxicating drinks which 
disqualifies the person a great portion of the time from 
properly attending to business, or which would reason
ably inflict a course of great mental anguish upon the 
innocent party. 
Habitually. Customarily; by frequent practice or use. 
It does not mean entirely or exclusively. See Habitual. 
Hable. L. Fr. In old English law, a port or harbor; a 
station for ships. 
Hacienda l(h)as(i)yenda/hosiyend�/. In Spanish law, 
the public domain; the royal estate; the aggregate 
wealth of the state. The science of administering the 
national wealth; public economy. 
Also an estate or farm belonging to a private person. 
A royal estate. 
Had. As used in a statute providing that no suit, action 
or proceeding to foreclose a mortgage or trust deed shall 
be had or maintained, "had" means commenced or be
gun. 
Hadbote Ihredbowt/. In Saxon law, a recompense or 
satisfaction for the violation of holy orders, or violence 
offered to persons in holy orders. 
Hadd. In Hindu law, a boundary or limit. A statutory 
punishment defined by law, and not arbitrary. 
Haderunga Ihred�r;}IJg�/. In old English law, hatred; ill 
will; prejudice, or partiality. 
Respect or distinction of persons. 
Hadgonel. In old English law, a tax or mulct. 
Hadley v. Baxendale, rule of. Under the rule of Had
ley v. Baxendale, "special" or "consequential" damages 
(as opposed to "general" damages which so obviously 
result from a breach that all contracting parties are 
deemed to have contemplated them) will only be award
ed if they were in the parties' contemplation, at the time 
of contracting, as a probable consequence of a breach of 
contract. See also Damages (Consequential damages). 
Hrec est conventio Ihiyk est k�nvensh(iy)ow/. Lat. 
This is an agreement. Words with which agreements 
anciently commenced. 
Hrec est finalis concordia Ihiyk est f�neyl�s 
k�nk6rd(i)y�/. L. Lat. This is the final agreement. 
The words with which the foot of a fine commenced. 
Hrereda Ih�riyd�/. In Gothic law, a tribunal answering 
to the English court-leet or hundred court. 
Hrerede abducto Ih�riydiy �bd;}ktow I. An ancient writ 
that lay for the lord, who, having by right the wardship 
of his tenant under age, could not obtain his person, the 
same being carried away by another person. 
Hrerede deliberando alteri qui habet custodium terrre 
Ih�riydiy d�lib�rrendow 6lt�ray kway heyb�t k�st6w
diy�m tehriy I. An ancient writ, directed to the sheriff, 
to require one that had the body of an heir, being in

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HreREDE RAPTO 
ward, to deliver him to the person whose ward he was by 
reason of his land. 
Hreredem deus facit, non homo Ih:lriyd:lm diY:ls feys:lt, 
non howmow/. God makes the heir, not man. 
Hrerede rapto Ih:lriydiy rreptow I. An ancient writ that 
lay for the ravishment of the lord's ward. 
Hreredes Ih:lriydiyz/. Lat. In the civil law, heirs. The 
plural of hreres (q. v.). 
Hreredes proximi Ih:lriydiyz proks:lmay/. Nearest or 
next heirs. The children or descendants of the deceased. 
Hreredes remotiores Ih:lriydiyz r:lmowshiyoriyz/. More 
remote heirs. The kinsmen other than children or 
descendants. 
Hreredes sui et necessarii Ih:lriydiyz syuway et 
nes:lseriyay/. In Roman law, own and necessary heirs; 
i.e., the lineal descendants of the estate-Ieaver. They 
were called "necessary" heirs, because it was the law 
that made them heirs, and not the choice of either the 
decedent or themselves. But since this was also true of 
slaves (when named "heirs" in the will) the former class 
was designated "sui et necessarii, " by way of distinction, 
the word "sui " denoting that the necessity arose from 
their relationship to the decedent. 
Hreredipeta Ihir:ldip:lt:l/. Lat. In old English law, a 
seeker of an inheritance; hence, the next heir to lands. 
Hreredipetre suo propinquo vel extraneo periculoso 
sane custodi nullus committatur Ihir:ldip:lt:l s(y)uwow 
pr:lpiIJkwow vel ekstreyniyow p:lrikY:llowsow seyniy 
k:lstowday n.JI:ls kom:lteyt:lr/. To the next heir, whether 
a relation or a stranger certainly a dangerous guardian, 
let no one be committed. 
Hrereditas I h:lred:lbes I . In Roman law, the hcereditas 
was a universal succession by law to any deceased per
son, whether such person had died testate or intestate, 
and whether in trust (ex fideicommisso) for another or 
not. The like succession according to Prretorian law was 
bonorum possessio. 
In old English law, an estate transmissible by descent; 
an inheritance. 
Hrereditas, alia corporalis, alia incorporalis; corpo
ralis est, qure tangi potest et videri; incorporalis 
qure tangi non potest nec videri Ih:lred:ltres eyl(i)Y:l 
korp:lreyl:ls eyl(i)Y:l inkorp:lreyl:ls; korp:lreyl:ls est, kwiy 
trenjay powt:lst et v:ldiray; inkorp:lreybs kwiy trenjay 
non powd:lst nek v:ldiray I. An inheritance is either 
corporeal or incorporeal. Corporeal is that which can be 
touched and seen; incorporeal, that which can neither 
be touched nor seen. 
Hrereditas damnosa Ih:lred:ltres dremnows:l/. A burden
some inheritance; one which would be a burden instead 
of a benefit, that is, the debts to be paid by the heir 
would exceed the assets. 
Hrereditas est successio in universum jus quod de
functus habuerit Ih:lred:ltres est s:lkses(h)(i)yow in 
yUwn:lv.Jrs:lm j.Js kwod d:lf.JIJt:ls h:lbyliw:lr:lt/. Inheri-
712 
tance is the succession to every right which the deceased 
had. 
Hrereditas jacens Ih:lred:ltres jeys:lnz/. In civil law, a 
prostrate or vacant inheritance. The inheritance left to 
a voluntary heir was so called so long as he had not 
manifested, either expressly or by silence, his accept
ance or refusal of the inheritance. So long as no one 
had acquired the inheritance, it was termed "hcereditas 
jacens':' and this, by a legal fiction, represented the 
person of the decedent. The estate of a person deceased, 
where the owner left no heirs or legatee to take it, called 
also "caduca ':. an escheated estate. The term has also 
been used in English law to signify an estate in abey
ance; that is, after the ancestor's death, and before 
assumption of heir. An inheritance without legal own
er, and therefore open to the first occupant. 
Hrereditas legitima Ih:lred:ltres l:ljit:lm:l/. A succession 
or inheritance devolving by operation of law (intestate 
succession) rather than by the will of the decedent. 
Hrereditas luctuosa Ih:lred:ltres l;}ktyuwows:l/. A sad or 
mournful inheritance or succession; as that of a parent 
to the estate of a child, which was regarded as disturb
ing the natural order of mortality (turbato ordine mor
talitatis). It was sometimes termed tristis successio. 
Hrereditas nihil aliud est, quam successio in univer
sum jus, quod defunctus habuerit Ih:lred:ltres nay(h):ll 
reliY:ld est, kwrem s:lksesh(iy)ow in yUwn:lv.Jrs:lm j.Js, 
kwod d:lf.JI]kt:ls h:lbyuw:lr:lt/. The right of inheritance is 
nothing else than the faculty of succeeding to all the 
rights of the deceased. 
Hrereditas nunquam ascendit Ih:lred:ltres n.JIJkw:lm 
:lsend:lt/. An inheritance never ascends. 2 Bl.Comm. 
211. A maxim of feudal origin, and which invariably 
prevailed in the law of England down to the passage of 
the statute 3 & 4 Wm. IV, c. 106, § 6, by which it was 
abrogated. 
Hrereditas testamentaria Ih:lred:ltres test:lmenteriY:l/. 
Testamentary inheritance, that is, succession to an es
tate under and according to the last will and testament 
of the decedent. 
Hreredum appellatione veniunt hreredes hreredum in 
infinitum Ih:lriyd:lm rep:lleyshiyowniy veniY:lnt h:lriy
diyz h:lriyd:lm in inf:lnayt:lm/. By the title of heirs, 
come the heirs of heirs to infinity. 
Hreres Ihiriyz/. In Roman law, the heir, or universal 
successor in the event of death. The heir is he who 
actively or passively succeeds to the entire property of 
the estate-Ieaver. He is not only the successor to the 
rights and claims, but also to the estate-leaver's debts, 
and in relation to his estate is to be regarded as the 
identical person of the estate-leaver, inasmuch as he 
represents him in all his active and passive relations to 
his estate. 
The institution of the hceres was the essential charac
teristic of a testament: if this was not done, the instru
ment was called a codicillus. The office, powers, and 
duties of the hceres, in Roman law, were much more 
closely assimilated to those of a modern executor than to

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713 
those of an heir at law. Hence "heir" is not at all an 
accurate translation of "hreres," unless it be understood 
in a special technical sense. 
In Common law, an heir; he to whom lands, tene
ments, or hereditaments by the act of God and right of 
blood to descend, of some estate of inheritance. 
Hceres astrarius Ihiriyz �streriy�s/. In old English law, 
an heir in actual possession of the house of his ancestor. 
Hceres de facto Ihiriyz diy frektow/. In old English law, 
heir from fact; that is, from the disseisin or other act of 
his ancestor, without or against right. An heir in fact, 
as distinguished from an heir de jur e, or by law. 
Hceres est alter ipse, et filius est pars patris Ihiriyz est 
olt�r ipsiy et filiy�s, est parz pretr�s/. An heir is anoth
er self, and a son is part of the father. 
Hceres est aut jure proprietatis aut jure representa
tionis Ihiriyz est ot juriy pr�pray�teyt�s ot juriy 
repr;}Z;}nteyshiyown;}s/. An heir is either by right of 
property, or right of representation. 
Hceres est eadem persona cum antecessore Ihiriyz est 
iyeyd�m p;}rsown;} k;)m rent;}s;}soriy I. An heir is the 
same person with his ancestor. 
Hceres est nomen collectivum Ihiriyz est nowm;}n 
kol;}ktayv;}m/. "Heir" is a collective name or noun. 
Hceres est nomen juris; filius est nomen naturce 
Ihiriyz est nowm�n jur;}s, filiy;}s est nowm;}n n�tyuriy I. 
"Heir" is a name or term of law; "son" is a name of 
nature. 
Hceres est pars antecessoris Ihiriyz est parz rent;}
s;}sor;}s/. An heir is a part of the ancestor. So said 
because the ancestor, during his life, bears in his body 
(in judgment of law) all his heirs. 
Hceres ex asse Ihiriyz eks resiy/. In the civil law, an 
heir to the whole estate; a sole heir. 
Hceres extraneus Ihiriyz �kstreyniy�s/. In the civil law, 
a strange or foreign heir; one who was not subject to the 
power of the testator, or person who made him heir. 
Qui testatoris juri subjecti non sunt, extranei hreredes 
appellantur. 
Hceres factus Ihiriyz frekt;}s/. In the civil law, an heir 
made by will; a testamentary heir; the person created 
universal successor by will. Otherwise called "hreres ex 
testamento, "and "hreres institutus." 
Hceres fideicommissarius Ihiriyz fidiyaykom;}seriy;}s/. 
In the civil law, the person for whose benefit an estate 
was given to another (termed "hreres fiduciarius, " q. v.) 
by will. Answering nearly to the cestui que trust of the 
English law. 
Hceres fiduciarius Ihiriyz f�duws(h)iyeriy;}s/. A fiduci
ary heir, or heir in trust; a person constituted heir by 
will, in trust for the benefit of another, called the 
"fideicommissarius. " 
Hceres hceredis mei est meus hceres Ihiriyz h�riyd;}s 
miyay est miy;}s hiriyz/. The heir of my heir is my heir. 
HAFNE COURTS 
Hceres institutus Ihiriyz inst;}tyuwt;}s/. A testamentary 
heir; one appointed by the will of the decedent. 
Hceres legitimus Ihiriyz l;}jit;}m;}s/. A lawful heir; one 
pointed out as such by the marriage of his parents. 
Hceres legitimus est quem nuptice demonstrant Ihiriyz 
l;}jit�m;}s est kwem n�pshiyiy d;}monstr;}nt/. He is a 
lawful heir whom marriage points out as such; who is 
born in wedlock. 
Hceres minor uno et viginti annis non respondebit, 
nisi in casu dotis Ihiriyz mayn�r yuwnow et v;}jintay 
ren;}s non respondiyb;}t naysay in keysyuw dowt;}s/. An 
heir under twenty-one years of age is not answerable, 
except in the matter of dower. 
Hceres natus Ihiriyz neyt;}s/. In the civil law, an heir 
born; one born heir, as distinguished from one made 
heir (hreres factus, q.v.); an heir at law, or by intestacy 
(ab intestato); the next of kin by blood, in cases of 
intestacy. 
Hceres necessarius Ihiriyz nes;}seriy;}s/. In the civil 
law, a necessary or compulsory heir. This name was 
given to the heir when, being a slave, he was named 
"heir" in the testament, because on the death of the 
testator, whether he would or not, he at once became 
free, and was compelled to assume the heirship. 
Hceres non tenetur in Anglia ad debita antecessoris 
reddenda, nisi per antecessorem ad hoc fuerit obli
gatus, prceterquam debita regis tantum Ihiriyz non 
t;}niyt;}r in rel)gliy;} red deb;}t� rent;}S�SOr;}S r�dend;}, nay
say p;}r rent;}s;}sor;}m eM h6k fyuw�r;}t obbgeyt;}s 
pr�t�rkw;}m deb;}t;} rij�s trent�m/. In England, the heir 
is not bound to pay his ancestor's debts, unless he be 
bound to it by the ancestor, except debts due to the king. 
However, by 3 & 4 Wm. IV, c. 104, he is now liable. 
Hceres rectus Ihiriyz rekt;}s/. In old English law, a right 
heir. 
Hceres suus lhiriyz s(y)uw;}s/. In the civil law, a man's 
own heir; a decedent's proper or natural heir. This 
name was given to the lineal descendants of the de
ceased. Persons who were in the power of the testator 
but became sui juris at his death. Those descendants 
who were under the power of the deceased at the time of 
his death, and who are most nearly related to him. 
Hceretare Ihehr;}teriy/. In old English law, to give a 
right of inheritance, or make the donation hereditary to 
the grantee and his heirs. 
Hceretico comburendo Ih�ret;}kow komby;}rendow I. 
The English statute 2 Hen. IV, c. 15, de hreretico combu
rendo, was the first penal law enacted against heresy, 
and imposed the penalty of death by burning against all 
heretics who relapsed or who refused to abjure their 
opinions. This statute was repealed by the statute 29 
Car. II, c. 9. This was also the name of a writ for the 
purpose indicated. 
Hafne Iheyv;}n/. A haven or port. 
Hafne courts Iheyv;}n k6rts/. Haven courts; courts 
anciently held in certain ports in England.

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HAGNE 
Hagne Iheyk/hreg/. A little handgun. A misspelling of 
hague. 
Hagnebut Ihrekb�t/hregO I. A handgun of a larger de
scription than the hagne. 
Hague Tribunal Iheyg tr�byuwn�l/. The Court of Arbi
tration established by the Hague Peace Conference of 
1899. The object of the establishment was to facilitate 
the immediate recourse to arbitration for the settlement 
of international differences by providing a permanent 
court, "accessible at all times, and acting, in default of 
agreement to the contrary between the parties, in ac
cordance with the rules of procedure inserted in the 
present convention." The court was given jurisdiction 
over all arbitration cases, provided the parties did not 
agree to institute a special tribunal. An international 
Bureau was likewise established to serve as a registry 
for the court and to be the channel of communications 
relative to the meetings of the court. The court, al
though called "permanent," is really so only in the fact 
that there is a permanent list of members from among 
whom the arbitrators in a given case are selected. At 
the Second Hague Conference of 1907, apart from minor 
changes made in the court, it was provided that, of the 
two arbitrators appointed by each of the parties, only 
one should be a national of the appointing state. 
Haia Ihey�/. In old English law, a park inclosed. A 
hedge. 
Hakh Ihlik/. Truth; the true God; a just or legal 
prescriptive right or claim; a perquisite claimable under 
established usage by village officers. 
Hakhdar Ihlikdar I. The holder of a right. 
Halakar IhaIakar I. The realization of the revenue. 
Half. One of two equal parts into which anything may 
be divided. Hoyne v. Schneider, 138 Kan. 545, 27 P.2d 
558. A moiety. 
Half blood. See Blood relations. 
Half brother; half sister. Persons who have the same 
father, but different mothers; or the same mother, but 
different fathers. 
Half cent. A copper coin of the United States, of the 
value of five mills, and of the weight of ninety-four 
grains. The coinage of these was discontinued in 1857. 
Half defense. See Defense. 
Half dime. A silver (now nickel) coin of the United 
States, of the value of five cents. 
Half dollar. A silver (now only partially silver) coin of 
the United States, of the value of fifty cents, or one-half 
the value of a dollar. 
Half eagle. A gold coin of the United States, of the 
value of five dollars. No longer in general circulation. 
Half endeal or halfen-deal Ihaf' IhOf�ndiyl/ . A moiety 
or half of a thing. 
Half-kineg Ihafkin�g/. In Saxon law, half-king (semi
rex). A title given to the aldermen of all England. 
714 
Half-mark. A noble, or six shillings and eight pence in 
English money. 
Half nephew or half niece. Son or daughter of a half 
brother or half sister. 
Half pilotage. Compensation for services which a pilot 
has put himself in readiness to perform, by labor, risk, 
and cost, and has offered to perform, at half the rate he 
would have received if the services had actually been 
performed. Gloucester Ferry Co. v. Pennsylvania, 114 
U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158. 
Half-proof. In the civil law, proof by one witness, or a 
private instrument. Or prima facie proof, which yet 
was not sufficient to found a sentence or decree. 
Half-seal. That which was formerly used in the English 
chancery for sealing of commissions to delegates, upon 
any appeal to the court of delegates, either in ecclesiasti
cal or marine causes. 
Half section. The half of a section of land according to 
the divisions of the government survey, laid off either by 
a north-and-south or by an east-and-west line, and con
taining 320 acres. 
Half-timer. A child who, by the operation of the English 
factory and education acts, was employed for less than 
the full time in a factory or workshop, in order that he 
might attend some "recognized efficient school." 
Half-tongue. A jury half of one tongue or nationality 
and half of another. 
Halfway house. Loosely structured residential facility 
designed to rehabilitate persons who have recently left a 
medical care facility or prison or who, for personal 
reasons, need help in readjusting. Such houses, for 
example, assist a recently discharged prisoner in making 
the often difficult transition from prison to civilian life. 
Half year. In legal computation, the period of one 
hundred and eighty-two days; the odd hours being re
jected. 
Halifax law Ihrebfreks 16/. A synonym for lynch law, or 
the summary (and unauthorized) trial of a person ac
cused of crime and the infliction of death upon him; 
from the name of the parish of Halifax, in England, 
where anciently this form of private justice was prac
tised by the free burghers in the case of persons accused 
of stealing; also called "gibbet law." 
Haligemot or halimote Ihreb(g�)mowt/. In Saxon law, 
the meeting of a hall (conventus au lre), that is, a lord's 
court; a court of a manor, or court-baron. So called 
from the hall, where the tenants or freemen met, and 
justice was administered. It was sometimes used to 
designate a convention of citizens in their public hall 
and was also called folkmote and hallmote. The word 
halimote rather signifies the lord's court or a court 
baron held in a manor in which the differences between 
the tenants were determined. Furthermore, it seems to 
have been a common practice for a wealthy abbey to 
keep a court, known as a halimo te, on each of its 
manors, while in addition to these manorial courts it

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715 
kept a central court, a Libera curia for all its greater 
freehold tenants. 
Halimas Ihrel�m�s/. In English law, the feast of All 
Saints, on the 1st of November; one of the cross-quar
ters of the year, was computed from Halimas to Candle
mas. 
Hall. A building or room of considerable size, used as a 
place for the meeting of public assemblies, conventions, 
courts, etc.; as, the city hall, the town hall. 
In old English law, a name given to many manorhous
es because the magistrate's court was held in the hall of 
his mansion; a chief mansion-house. 
Hence, hall day, a court day. 
Hallage Ih61�j/. In old English law, a fee or toll due for 
goods or merchandise vended in a halL A toll due to 
the lord of a fair or market, for such commodities as 
were vended in the common hall of the place. 
Hallazgo I(h)a(l)yaskow/. In Spanish law, the finding 
and taking possession of something which previously 
had no owner, and which thus becomes the property of 
the first occupant. 
Halle-gemote Ih6Ig�mowt/. In Saxon law, haligemot 
(q.v.). 
Hallmark. An official stamp affixed by the goldsmiths 
upon articles made of gold or silver as an evidence of 
genuineness, and hence used to signify any mark of 
genuineness. 
Hallmoot Ih6lmowt/. See Haligemot. 
Hallucination Ih�l(y)uws�neysh�n/. An apparently real 
sensory perception (auditory or visual) without any real 
external stimuli to cause it; commonly experienced by 
psychotics. It may occur with relation to any of the 
special senses, e.g. hearing sounds or seeing things that 
do not exist. The perception by any of the senses of an 
object which has no existence. The conscious recogni
tion of a sensation of sight, hearing, feeling, taste, or 
smell which is not due to any impulse received by the 
perceptive apparatus from without, but arises within the 
perceptive apparatus itself. 
Hallucinogenic drug. Drugs that induce hallucina
tions, such as mescaline, LSD, and the like. 
Halmote Ih6lmowt/. See Haligemot. 
Halved notes. Payment notes which are torn in half, 
one half of each note being given to seller when order is 
placed, the other half, when the goods are delivered. 
Halymote Ihrel�mowt/. A holy or ecclesiastical court. 
It was anciently held on Sunday next before St. Thomas' 
day, and therefore called the "holymote': or holy court. 
Halywercfolk Ihrel�w;}rkf6wk/. Sax. In old English 
law, tenants who held land by the service of repairing or 
defending a church or monument, whereby they were 
exempt from feudal and military services. Especially in 
the county of Durham, those who held by service of 
defending the corpse of St. Cuthbert. 
HAND 
Ham. In England, a place of dwelling; a homeclose; a 
little narrow meadow. A house or little village. 
Hama Iheym�/. In English law, a piece of land. 
Hamel, hameleta, or hamleta Ihrem�l/hreml�t�/. A 
hamlet. 
Hamesecken Iheymsek�n/. In old English law, the 
crime of housebreaking or burglary. See also Ham
socne. 
Hamfare Ihremfer/. (Sax. From ham, a house.) In 
Saxon law, an assault made in a house; a breach of the 
peace in a private house. This word by some is said to 
signify the freedom of a man's house. See also Ham
socne. 
Hamlet. A small village; a part or member of a vill. It 
is the diminutive of "ham ': a village. A "village" or 
"hamlet" in a rural community may be no more than a 
store, a school, a church, and a few residences. 
Hammer. Metaphorically, a forced sale or sale at public 
auction. "To bring to the hammer", i.e. to put up for 
sale at auction. "Sold under the hammer", i.e. sold by 
an officer of the law or by an auctioneer. See also 
Forced sale. 
Hammurabi, Code of. Set of laws once considered the 
oldest promulgation of laws in human history prepared 
by Babylonian king, 1792-1750 B.C. (circa). 
Hamsocne Ihremsowk�n/. In Saxon law, the word is 
variously spelled hamsoca, hamsocna, haimsu ken, hame
saken, hamsocn. The right of security and privacy in a 
man's house. The breach of this privilege by a forcible 
entry of a house is breach of the peace. 
Among the Anglo-Saxons it was breaking into a house; 
perhaps the time of the day was not an element. See 
also Hamesecken. 
Hanaper Ihren�p�r/. In old English law, a hamper or 
basket in which were kept the writs of the court of 
chancery relating to the business of a subject, and their 
returns; equivalent to the Roman fiscus. The fees ac
cruing on writs, etc., were there kept. 
Hanaper-office Ihren�p�r 6f�s/. An office formerly be
longing to the common-law jurisdiction of the court of 
chancery, so called because all writs relating to the 
business of a subject, and their returns, were formerly 
kept in a hamper, in hanaperio. 
Hand. A measure of length equal to four inches, used in 
measuring the height of horses. 
A person's signature. 
In anatomical usage the hand, or manus, includes the 
phalanges, or fingers and thumb; the metacarpus, or 
hand proper; and the carpus, or wrist; but in popular 
usage the wrist is often excluded. 
An instrumental part; e.g. "he had a hand in the 
crime". One who performs some work or labor; e.g. a 
"hired hand". To give assistance; e.g. to lend a "hand". 
To deliver; e.g. to "hand over".

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HAND 
In the plural, the term may be synonymous with 
"possession"; as, the "hands" of an executor, garnishee, 
etc. 
In old English law, an oath. 
For the meaning of the terms Strong hand and Clean 
hands doctrine, see those titles. 
Handbill. A written or printed notice displayed, handed 
out, or posted, to inform those concerned of something to 
be done or some event. Posting and distribution of 
handbills is regulated by ordinance or statute in most 
localities. 
Handborow. In Saxon law, a hand pledge; a name 
given to the nine pledges in a decennary or friborg; the 
tenth or chief, being called "headborow " (q.v.). So called 
as being an inferior pledge to the chief. 
Handcuffs. See Fetters. 
Hand down. To announce or file an opinion in a cause. 
Used originally and properly of the opinions of appellate 
courts transmitted to the court below; but in later usage 
the term is employed more generally with reference to 
any decision by a court upon a case or point reserved for 
consideration. 
Hand-fasting. In old English law, betrothment. 
Hand-grith. Peace or protection given by the king with 
his own hand; used in the laws of Henry I. 
Handhabend or hand-habende Ihrendhreb:md/. In Sax
on law, one having a thing in his hand, that is, a thief 
found having the stolen goods in his possession. Juris
diction to try such thief. 
Handle. To control, direct, to deal with, to act upon, to 
perform some function with regard to or to have passed 
through one's hands. To buy and sell, or to deal or 
trade in. State ex reI. Bell v. Phillips Petroleum Co., 
349 Mo. 360, 160 S.W.2d 764, 769. To manage or oper
ate. 
Hand money. Money paid in hand to bind a bargain; 
earnest money, when it is in cash. 
Handsale. Anciently, among the northern European 
nations, shaking of hands was held necessary to bind a 
bargain,-a custom still retained in verbal contracts. A 
sale thus made was called "handsale" (venditio per mu
tuam manum complexionem). In process of time the 
same word was used to signify the price or earnest 
money which was given immediately after the shaking 
of hands, or instead thereof. 2 BI.Comm. 448. 
Handsel. Handsale, or earnest money. 
Handwriting. The chirography of a person. The cast or 
form of writing peculiar to a person, including the size, 
shape, and style of letters, tricks of penmanship, and 
whatever gives individuality to his writing, distinguish
ing it from that of other persons. Anything written by 
hand; an instrument written by the hand of a person, or 
a specimen of his writing. 
Handwriting, considered under the law of evidence, 
includes not only the ordinary writing of one able to 
write, but also writing done in a disguised hand, or in 
716 
cipher, and a mark made by one able or unable to write. 
For nonexpert opinion as to genuineness of handwriting, 
as based on familiarity not required for purposes of 
litigation, see Fed.Evid. R. 901(b)(2). 
Handwriting exemplars. Samples of one's handwriting 
required in criminal cases involving forgery, kidnapping, 
etc., for comparison purposes. 
Compelling grand jury witness to produce handwrit
ing and printing exemplars, to be used solely as stan
dard of comparison in order to determine whether wit
ness was author of certain writings, does not violate 
Fifth Amendment privilege although privilege might be 
asserted if government should seek more than physical 
characteristics of handwriting as by seeking to obtain 
written answers to incriminating questions or a signa
ture on incriminating statement. U.S.C.A.Const. 
Amend. 5. U. S. v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 
L.Ed.2d 99. 
Hang. In old practice, to remain undetermined. Thus, 
the present participle means pending; during the pend
ency. Remaining undetermined. See Pending. 
Hanged, drawn and quartered. A method of executing 
traitors in England, said to have been introduced in 
1241. The traitor was carried on a sled, or hurdle to the 
gallows (formerly dragged there tied to the tail of a 
horse); hanged till half dead and then cut down; his 
entrails cut out and burnt; his head cut off and his body 
to be divided into quarters, which, with his head, were 
hung in some public place. In practice the executioner 
usually cut out the heart and held it up to view. 
Hanging. As a form of capital punishment, means sus
pension by neck until de�d. Such means of capital 
punishment is seldom used in United States. 
Hanging in chains. In atrocious cases it was at one 
time usual, in England, for the court to direct a murder
er, after execution, to be hanged upon a gibbet in chains 
near the place where the murder was committed. Its 
legality was declared by acts in 1751 and 1828, and 
abolished by 4 & 5 Wm. IV, c. 26. 
Hangman. An executioner. One who executes con
demned criminals by hanging. 
Hangwite Ihrel)w:lt/. In Saxon law, a fine for illegal 
hanging of a thief, or for allowing him to escape. Immu
nity from such fine. 
Hanse Ihrens/hanz:l/. In Germany, formerly an alliance 
or confederation among merchants or cities, for the good 
ordering and protection of the commerce of its members. 
An imposition upon merchandise. 
Hanseatic Ihrenziyred:lk/. Pertaining to a hance or com
mercial alliance; but, generally, the union of the Hanse 
Towns is the one referred to, as in the expression the 
"Hanseatic League." 
Hanse Towns Ihrens tawnz/. The collective name of 
certain German cities, including Lubeck, Hamburg, and 
Bremen, which formed an alliance for the mutual pro
tection and furtherance of their commercial interests, in 
the twelfth century. The powerful confederacy thus

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717 
formed was called the uHanseatic League." The league 
framed and promulgated a code of maritime law, which 
was known as the uLaws of the Hanse Towns," or Jus 
Hanseaticum Mari timum. 
The years 1356 to 1377 marked the zenith of the 
league's power. The league gradually declined till, in 
1669, the last general assembly was held and Lubeck, 
Hamburg and Bremen were left alone to preserve the 
name and small inheritance of the uHansa." 
Hanse Towns, laws of the 116z ;}V a;} hrens tawnz/. The 
maritime ordinances of the Hanseatic towns, first pub
lished in German at Lubeck, in 1597, and in May, 1614, 
revised and enlarged. 
Hantelod, or hantelode Ihrent;}lowd/. In old European 
law, an arrest, or attachment. 
Haole Ihawliy I. White foreign person. International 
Longshoremen's & Warehousemen's Vnion v. Acker
man, D.C.Hawaii, 82 F.Supp. 65, 76. 
Hap. To catch. Thus, "hap the rent," "hap the deed
poll," were formerly used. 
Happiness. Comfort, consolation, contentment, ease, en
joyment, pleasure, satisfaction. The constitutional right 
of men to pursue their "happiness" means the right to 
pursue any lawful business or vocation, in any manner 
not inconsistent with the equal rights of others, which 
may increase their prosperity, or develop their faculties, 
so as to give to them their highest enjoyment. Butchers' 
Vnion Co. v. Crescent City Co., 111 V.S. 746, 4 S.Ct. 652, 
28 L.Ed. 585. 
Harassment. As defined in federal statute providing for 
a civil action to restrain harassment of a victim or 
witness, is "a course of conduct directed at a specific 
person that causes substantial emotional distress in such 
person and serves no legitimate purpose." 18 V.S.C.A. 
§ 1514(c)(1). Term is used in a variety of legal contexts 
to describe words, gestures and actions which tend to 
annoy, alarm and abuse (verbally) another person; e.g., 
the use of "obscene or profane language or language the 
natural consequence of which is to abuse the hearer or 
reader" is unlawful harassment under the Federal Fair 
Debt Collection Practices Act. 15 V.S.c.A. § 1692(d)(2). 
Sexual harassment by employers against employees is 
recognized as a cause of action under Title VII of the 
Civil Rights Act of 1964, 42 V.S.C.A. § 2000e et seq., e.g., 
Tomkins v. Public Service Electric & Gas Co., C.A.N.J., 
568 F.2d 1044. See also Sexual harassment. 
A person commits a petty misdemeanor if, with pur
pose to harass another, he: (1) makes a telephone call 
without purpose of legitimate communication; or (2) 
insults, taunts or challenges another in a manner likely 
to provoke violent or disorderly response; or (3) makes 
repeated communications anonymously or at extremely 
inconvenient hours, or in offensively coarse language; 
or (4) subjects another to an offensive touching; or (5) 
engages in any other course of alarming conduct serving 
no legitimate purpose of the actor. Model Penal Code, 
§ 250.4. 
HARDSHIP 
The federal Fair Debt Collection Practices Act prohib
its debt collectors from using such harassment tactics as 
threats, abusive language, or telephone excesses. 15 
V.S.C.A. § 1692c et seq. 
Harbinger Iharb;}nj;}r I. In England, an officer of the 
royal household. 
Harbor, n. A haven, or a space of deep water so shel
tered by the adjacent land and surroundings as to afford 
a safe anchorage for ships. A port or haven for ships; a 
sheltered place, natural or artificial, on the coast of a 
sea, lake, or other body of water. A place of security 
and comfort; a refuge. See also Haven. 
Harbor, v. To afford lodging to, to shelter, or to give a 
refuge to. To clandestinely shelter, succor, and protect 
improperly admitted aliens. Susnjar v .. V. S., C.C.A. 
Ohio, 27 F.2d 223, 224. To receive clandestinely and 
without lawful authority a person for the purpose of so 
concealing him that another having a right to the lawful 
custody of such person shall be deprived of the same. 
Or, in a less technical sense, it is the reception of 
persons improperly. It may be aptly used to describe 
the furnishing of shelter, lodging, or food clandestinely 
or with concealment, and under certain circumstances, 
may be equally applicable to those acts divested of any 
accompanying secrecy. Harboring a criminal is a crime 
under both federal and state statutes, and a person who 
harbors a criminal is an accessory after the fact. See, 
e.g., 18 V.S.C.A. §§ 2, 1071, 1072; Model Penal Code, 
§ 242.3. See also Accessory (Accessory after the fact); 
Aid and abet. 
Harboring a criminal. See Harbor. 
Harbor line. A line marking the boundary of a certain 
part of a public water which is reserved for a harbor. 
The line beyond which wharves and other structures 
cannot be extended. 
Hard cases. A phrase used to indicate judicial decisions 
which, to meet a case of hardship to a party, are not 
entirely consonant with the true principle of the law. It 
is said of such: "Hard cases make bad law." 
Hard goods. Durable merchandise (e.g., appliances, fur
niture, hardware). 
Hard labor. A punishment, additional to mere impris
onment, sometimes imposed upon convicts sentenced to 
a penitentiary for serious crimes, or for misconduct 
while in prison. 
Hru;d money. Lawful coined money (as contrasted with 
paper currency). 
Hardship. In general, privation, suffering, adversity. 
As used in zoning statutes as grounds for variance, it 
refers to fact that zoning ordinance or restriction as 
applied to a particular property is unduly oppressive, 
arbitrary or confiscatory. St. Onge v. City of Concord, 
95 N.H. 306, 63 A.2d 221. 
The severity with which a proposed construction of 
the law would bear upon a particular case, founding, 
sometimes, an argument against such construction, 
which is otherwise termed the "argument ab inconven
ienti." See Hard cases.

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HARM 
Harm. The existence of loss or detriment in fact of any 
kind to a person resulting from any cause. See also 
Damages; Injury; Physical injury. 
Harmful. As used in connection with foods, means nox
ious, hurtful, pernicious, likely to cause illness or dam
age. See also Adulteration. 
As used in connection with errors committed at trial, 
it means that rights were seriously affected; an appel
late court will consider harmful error but not harmless 
error. See also Error; Harmless error doctrine; Plain error 
rule. 
Harmless error doctrine. The doctrine that minor or 
harmless errors during a trial do not require reversal of 
the judgment by an appellate court. An error which is 
trivial or formal or merely academic and was not preju
dicial to the substantial rights of the party assigning it, 
and in no way affected the final outcome of the case. 
State v. Johnson, 1 Wash.App. 553, 463 P.2d 205, 206. 
An error is "harmless" if reviewing court, after viewing 
entire record, determines that no substantial rights of 
defendant were affected and that error did not influence 
or had only very slight influence on verdict. V.S. v. 
McCrady, C.A.Minn., 774 F.2d 868, 874. Doctrine which 
permits an appellate court to affirm a conviction in spite 
of such type error appearing in the record. State v. 
Michelli, La., 301 So.2d 577, 579. 
Harmless error is not a ground for granting a new 
trial or for setting aside a verdict or for vacating, modi
fying or otherwise disturbing a judgment or order, un
less such refusal appears to the court inconsistent with 
substantial justice. Fed.R.Civil P. 61. Any error, de
fect, irregularity or variance which does not affect sub
stantial rights will be disregarded by court. Fed.R. 
Crim.P. 7(c), 52. 
See also Error. 
Harmonic plane. The zero adopted by the Vnited 
States Coast and Geodetic Survey of the Department of 
Commerce upon which its tidal tables, charts, and maps 
are based. It is an arbitrary plane, and, in Puget Sound, 
is the lowest plane of the tide recognized by that depart
ment. 
Harmonize. See Harmony. 
Harmony. The phrase "in harmony with" is synon
ymous with "in agreement, conformity, or accordance 
with." 
Haro, harron Ihrerow/. Fr. In Norman and early Eng
lish law, an outcry, or hue and cry after felons and 
malefactors. 
Harter Act. A name commonly applied to the act of 
Congress of February 13, 1893, c. 105, providing: (§ 1) 
that agreements in a bill of lading relieving the owner, 
etc., of a vessel sailing between the Vnited States and 
foreign ports, from liability for negligence or fault in 
proper loading, storage, custody, care, or delivery of 
merchandise, are void (46 V.S.C.A. § 190); (§ 2) that no 
bill of lading shall contain any agreement whereby the 
obligations of the owner to exercise due diligence, prop
erly equip, man, provision and outfit a vessel and make 
it seaworthy, and whereby the obligations of the master, 
718 
etc., carefully to handle, store, care for and deliver the 
cargo, are in any way lessened, weakened or avoided (46 
V.S.C.A. § 191); (§ 3) that if the owner shall exercise due 
diligence to make such vessel in all respects seaworthy 
and properly manned, equipped and supplied, neither 
the vessel nor her owners, etc., shall be liable for loss 
resulting from faults or errors in navigation or manage
ment, nor for losses arising from dangers of the sea, acts 
of God, or public enemies, or the inherent defect of the 
thing carried, or insufficiency of package, or seizure 
under legal process, or any act or omission of the ship
per of the goods, or from saving or attempting to save 
life at sea, or deviation in rendering such service (46 
V.S.C.A. § 192). 
Hart-Scott-Rodino Antitrust Improvement Act. A 
(1976) procedural statute that gives states attorneys 
general the right to sue as parens patriae for injuries 
suffered by consumers in the state, provides for premer
ger notification, and generally strengthens the antitrust 
enforcement powers of the Department of Justice. 
Harvesting. The act or process of gathering of crops of 
any kind. Also the quantity or yield of a crop. 
Hashish. Drug which is formed of resin scraped from 
the flowering top of the cannabis plant, as distinguished 
from marijuana which consists of the chopped leaves 
and stems of the cannabis plant. 
Haspa Ihresp�/. In old English law, the hasp of a door; 
by which livery of seisin might anciently be made, 
where there was a house on the premises. 
Hasta Ihrest�/. Lat. A spear. In the Roman law, a 
spear was the sign of a public sale of goods or sale by 
auction. Hence the phrase "hastre subjicere" (to put 
under the spear) meant to put up at auction. 
In feudal law, a spear, the symbol used in making 
investiture of a fief. 
Hatch Act. Federal statute which prohibits federal, 
state, and local employees from partaking in certain 
types of political activities. 5 V.S.C.A. § 7324. 
Hat money. In maritime law, primage; a small duty 
paid to the captain and mariners of a ship. 
Hauber 16wb�r/. O. Fr. A high lord; a great baron. 
Haul. To pull or draw with force; to drag; to transport 
by hauling. 
Haula. See Aula. 
Haulage royalty Ih61�j r6y�ltiy I. Damages at a certain 
amount per ton for coal from adjacent lands hauled 
through subterranean passageways of lessor's land. 
Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 
S.W.2d 728, 732. 
Haustus Ih6st�s/. Lat. In the civil law, a species of 
servitude, consisting in the right to draw water from 
another's well or spring, in which the iter (right of way 
to the well or spring), so far as it is necessary, is tacitly 
included.

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719 
Have. Lat. A form of the salutatory expression ":Ave," 
used in the titles of some of the constitutions of the 
Theodosian and Justinian Codes. 
Have. Imports ownership, and has been defined to mean 
"to keep," "to hold in possession," "to own." To bear 
(children). 
Have and hold. A common phrase in conveyancing, 
derived from the habendum et tenendum of the old 
common law. See Habendum et tenendum. 
Haven. A place of a large receipt and safe riding of 
ships, so situate and secured by the land circumjacent 
that the vessels thereby ride and anchor safely, and are 
protected by the adjacent land from dangerous or vio
lent winds; as Milford Haven, Plymouth Haven, and the 
like. Lowndes v. Board of Trustees, 153 U.S. 1, 14 S.Ct. 
758, 38 L.Ed. 615. A place of refuge. See also Harbor. 
Hawker. An itinerant or traveling salesman who 
carries goods about in order to sell them, and who 
actually sells them to purchasers, in contradistinction to 
a trader who has goods for sale and sells them in a fixed 
place of business. A hawker or peddler usually sells his 
goods in the public streets, or from door-to-door, and 
commonly is required to have a license. 
Formerly, a peddler who used beast of burden to carry 
wares and who cried out merits of wares in street. City 
of Washington v. Reed, 229 Mo.App. 1195, 70 S.W.2d 
121, 122. See Hawking; Peddler. 
HaWking. The act of offering goods for sale from door
to-door, or on the streets by outcry or by attracting the 
attention of persons by exposing goods in a public place, 
or by placards, labels, or signals. The business of ped
dling or hawking is distinct from that of a manufacturer 
selling his own products, and those who raise or produce 
what they sell, such as farmers and butchers, are not 
peddlers or hawkers. 
Hay-bote Iheybowt/. In old English law, another name 
for "hedge-bote," being one of the estovers allowed to a 
tenant for life or years, namely, material for repairing 
the necessary hedges or fences of his grounds, or for 
making necessary farming utensils. 2 BLComm. 35. 
Hayward. In old English law, an officer appointed in 
the lord's court to keep a common herd of cattle of a 
town; so called because he was to see that they did not 
break or injure the hedges of inclosed grounds. His 
duty was also to impound trespassing cattle, and to 
guard against poundbreaches. 
Hazard. A risk or peril, assumed or involved, whether 
in connection with contract relation, employment, per
sonal relation, sport or gambling. A danger or risk 
lurking in a situation which by change or fortuity devel
ops into an active agency of harm. Hough v. Contrib
utory Retirement Appeal Board, 309 Mass. 534, 36 
N.E.2d 415, 417, 418. Exposure to the chance of loss or 
injury. Caminetti v. Guaranty Union Life Ins. Co., 52 
Cal.App.2d 330, 126 P.2d 159, 163. A game of chance or 
wagering. 
HAzAR·ZAMIN 
In insurance law, the risk, danger, or probability that 
the event insured against may happen, varying with the 
circumstances of the particular case. 
In old English law, an unlawful game at dice, those 
who play at it being called "hazardors." 
See also Dangerous; Extraordinary hazard; Risk. 
Moral hazard. In fire insurance, the risk or danger of 
the destruction of the insured property by fire, as mea
sured by the character and interest of the insured own
er, his habits as a prudent and careful man or the 
reverse, his known integrity or his bad reputation, and 
the amount of loss he would suffer by the destruction of 
the property or the gain he would make by suffering it 
to burn and collecting the insurance. 
Hazardor Ihli!z;;)rd;;)r/. In old English law, one who 
played at a hazard, i.e., an unlawful game of dice. 
Hazardous. Exposed to or involving danger; perilous; 
risky; involving risk of loss. Caminetti v. Guaranty 
Union Life Ins. Co., 52 CaLApp.2d 330, 126 P.2d 159, 
162, 163. 
The terms "hazardous", "extra-hazardous", "specially 
hazardous", and "not hazardous" are well-understood 
technical terms in the business of insurance, having 
distinct and separate meanings. See Extraordinary haz
ard. 
Hazardous contract. See Contract. 
Hazardous employment. High risk and extra perilous 
work. When used in context of workers' compensation, 
it refers to employment which requires employer to 
carry workers' compensation coverage or its equivalent 
regardless of the number of employees. 
Hazardous insurance. Insurance effected on property 
which is in unusual or peculiar danger of destruction by 
fire, or on the life of a person whose occupation exposes 
him to special or unusual perils. 
Hazardous negligence. See Negligence. 
Hazardous substance. A solid waste, or combination of 
solid wastes, which because of its quantity, concentra
tion or physical, chemical, or infectious characteristics 
may cause, or significantly contribute to an increase in 
mortality or an increase in serious irreversible, or inca
pacitating reversible, illness or pose a substantial 
present or potential hazard to human health or the 
environment when improperly treated, stored, trans
ported, or disposed of, or otherwise managed. 42 U.S. 
C.A. § 6903(5). 
Includes certain flammable, toxic or radioactive sub
stances. Under the Federal Hazardous Substance Act, a 
substance may be a "hazardous substance" if it meets 
the statutory definition or has been so defined by regula
tion. U.S. v. Articles of Hazardous Substance, C.A.N.C., 
588 F.2d 39. See 15 U.S.c.A. § 1261(f) et seq. 
Hazard pay. Special compensation for work under un
pleasant or unsafe conditions. 
Hazar-zamin. A bail or surety for the personal attend
ance of another.

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H.B. 
H.B. House Bill; a bill in the process of going through 
the House of Representatives on its way to becoming a 
law. 
H.B.M. An abbreviation for His (or Her) Britannic Maj
esty. 
H.C. An abbreviation for House of Commons, or for 
habeas cor pus. 
He. Properly a pronoun of the masculine gender, but 
usually used and construed in status to include both 
sexes as well as corporations. May be read "they". 
Buono v. Yankee Maid Dress Corporation, C.C.A.N.Y., 
77 F.2d 274, 278. 
Head. Chief; leading; principal; the upper part or 
principal source of a stream. 
The principal person or chief of any agency, bureau, 
organization, corporation, or firm. 
Headborough. In Saxon law, the head or chief officer of 
a borough; chief of the frank-pledge tithing or decen
nary. This office was afterwards, when the petty con
stableship was created, united with that office. 
Head money. A sum of money reckoned at a fixed 
amount for each head (person) in a designated class. 
Particularly (1) a capitation or poll tax. (2) A bounty 
offered by the laws of the United States for each person 
on board an enemy's ship or vessel, at the commence
ment of a naval engagement, which shall be sunk or 
destroyed by a ship or vessel of the United States of 
equal or inferior force, the same to be divided among the 
officers and crew in the same manner as prize money. 
A similar reward is offered by the British statutes. (3) 
The tax or duty imposed by act of congress of Aug. 3, 
1882, on owners of steamships and sailing vessels for 
every immigrant brought into the United States. Head 
Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798. (4) 
A bounty or reward formerly paid to one who pursued 
and killed a bandit or outlaw and produced his head as 
evidence; the offer of such a reward being popularly 
called "putting a price on his head". See Bounty; Re
ward. 
Headnote. A brief summary of a legal rule or signifi
cant facts in a case, which, among other headnotes 
applicable to the case, precedes the printed opinion in 
reports. A syllabus to a reported case; a summary of 
the points decided in the case, which is placed at the 
head or beginning of the opinion. See also Digest; Sylla
bus. 
Head of household. An individual who actually sup
ports and maintains in one household one or more 
individuals who are closely connected with him by blood 
relationship, relationship by marriage, or by adoption, 
and whose right to exercise family control and provide 
for the dependent individuals is based upon some moral 
or legal obligation. Miller v. Glenn, D.C.Ky., 47 F.Supp. 
794, 796, 797. 
A taxpayer classification which, generally, describes 
an unmarried individual (other than a surviving spouse) 
who provides a home for his or her dependent(s). I.R.C. 
§ 2(b). The Internal Revenue Code provides for prefer-
720 
ential treatment for those individuals that qualify as a 
head of household. The head of household status en
titles the taxpayer to use income tax rates which are 
lower than those applicable to other unmarried individ
uals, but higher than those applicable to surviving 
spouses and married persons filing a joint return. 
A term used in homestead and exemption laws to 
designate a person who maintains a family; a house
holder. Not necessarily a husband or father, but any 
person who has charge of, supervises, supports, main
tains, and manages the affairs of the household or the 
collective body of persons residing together and consti
tuting the family. The term may thus include an aban
doned wife maintaining minor children or a bachelor 
supporting his parents. 
Head of stream. The highest point on the stream which 
furnishes a continuous stream of water, not necessarily 
the longest fork or prong. The source of a stream. See 
also Headstream. 
Headright. An interest in trust funds arising from 
mineral income from land held or once held by an 
Indian tribe as well as the right to any royalties or 
interest. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 
895, 904. Under the Allotment Act (Act Congo June 28, 
1906 [34 Stat. 539]), creating a trust fund from all tribal 
funds which included funds from sale of tribal lands, 
funds allowed on claims against the United States and 
received from tribal oil, gas, and mineral rights, each 
allottee owned his pro rata share of the trust fund, and 
this pro rata beneficial interest is commonly called a 
"headright." 
Headright certificate. In the laws of the republic of 
Texas, a certificate issued under authority of an act of 
1839, which provided that every person immigrating to 
the republic between October 1, 1837, and January 1, 
1840, who was the head of a family and actually resided 
within the government with his or her family should be 
entitled to a grant of 640 acres of land, to be held under 
such a certificate for three years, and then conveyed by 
absolute deed to the settler, if in the meantime he had 
resided permanently within the republic and performed 
all the duties required of citizens. 
Head-silver. In old English law, a name sometimes 
given to a Common Fine (q.v.). By a payment of a 
certain sum of money to the lord, litigants might try 
their suits nearer home. 
Headstream. Stream that is the source of a river. See 
also Head of stream. 
Head tax. Tax of flat amount per person. 
Heafodweard. In old English law, one of the services to 
be rendered by a thane, or a geneath or villein, the 
precise nature of which is unknown. 
Healer. One who heals or cures; specifically, one who 
professes to cure bodily diseases without medicine or 
any material means, according to the tenets and practic
es of so-called "Christian Science," whose beliefs and 
practices are founded on their religious convictions.

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721 
Healgemote Iheylg:lmowt/. In Saxon law, a court-bar
on; an ecclesiastical court; Haligemot (q.v.). 
Healing act. Another name for a curative act or stat
ute. See Curative (Curative statute). 
Healsfang IheylsfaIJ/. In Saxon law, a sort of pillory, by 
which the head of the culprit was caught between two 
boards, as feet are caught in a pair of stocks. It was 
very early disused, no mention of it occurring in the 
laws of the Saxon. Kings. 
Health. State of being hale, sound, or whole in body, 
mind or soul, well being. Freedom from pain or sick
ness. See Healthy. 
Bill of health. See Bill. 
Board of health. See Board. 
Health laws. Laws, ordinances, or codes prescribing 
sanitary standards and regulations, designed to promote 
and preserve the health of the community. 
Health officer. The officer charged with the execution 
and enforcement of health laws, e.g. Surgeon General. 
The powers and duties of health officers are regulated 
by federal, state and local laws. 
Public health. As one of the objects of the police power 
of the state, the "public health" means the prevailingly 
healthful or sanitary condition of the general body of 
people or the community in mass, and the absence of 
any general or widespread disease or cause of mortality. 
The wholesome sanitary condition of the community at 
large. Many cities have "Public Health Departments" 
or agencies of similar function and status. Federal laws 
dealing with health are administered by the Department 
of Health, Education and Welfare. 
Sound health. See Sound. 
Health Maintenance Organization (HMO). Groups of 
participating health care providers (physicians, hospi
tals, clinics) that provide medical services to enrolled 
members of group health insurance plan. 
Healthy. Free from disease, injury, or bodily ailment, or 
any state of the system peculiarly susceptible or liable to 
disease or bodily ailment. 
Hearing. A proceeding of relative formality (though 
generally less formal than a trial), generally public, with 
definite issues of fact or of law to be tried, in which 
witnesses are heard and evidence presented. It is a 
proceeding where evidence is taken to determine issue of 
fact and to render decision on basis of that evidence. 
People v. Ivenditti, 276 C.A.2d 178, 80 Cal.Rptr. 761, 
762. The parties proceeded against or otherwise in
volved have right to be heard, in much the same manner 
as a trial and such proceedings may terminate in final 
order. See e.g. 5 U.S.C.A. § 556. 
It is frequently used in a broader and more popular 
significance to describe whatever takes place before 
magistrates clothed with judicial functions and sitting 
without jury at any stage of the proceedings subsequent 
to its inception (see Preliminary hearing, below ), and to 
hearings before administrative agencies as conducted by 
HEARING EXAMINER 
a hearing examiner or Administrative Law Judge. As 
to the later type, it consists of any confrontation, oral or 
otherwise, between an affected individual and an agency 
decision-maker sufficient to allow individual to present 
his case in a meaningful manner. Gray Panthers v. 
Schweiker, C.A., 652 F.2d 146, 151, 209 U.S.App.D.C. 
153. 
The introduction and admissibility of evidence is 
usually more lax in a hearing than in a civil or criminal 
trial (see e.g., 42 U.S.C.A. § 405(b) which provides for 
admissibility of evidence at social security hearings that 
would otherwise be inadmissible at regular trial). 
Hearings are extensively employed by both legislative 
and administrative agencies and can be adjudicative or 
merely investigatory. Adjudicative hearings can be ap
pealed in a court of law. Congressional committees 
often hold hearings prior to enactment of legislation; 
these hearings are then important sources of legislative 
history. 
See also Adminis trative hearing; Detention hearing; Fair 
hearing; Full hearing; Omnibus hearing. 
Ex parte hearing. See Ex parte. 
Final hearing. See Final. 
In criminal law. The examination of a person charged 
with a crime or misdemeanor, and of the witnesses for 
or against the accused; See Preliminary hearing, below. 
Preliminary examination. The examination of a person 
charged with crime, before a magistrate or judge. See 
Preliminary hearing, below. 
Preliminary hearing. In criminal law, synonymous with 
"preliminary examination". The hearing given to a 
person accused of crime, by a magistrate or judge, exer
cising the functions of a committing magistrate, to 
ascertain whether there is sufficient evidence to war
rant and require the commitment and holding to bail of 
the persons accused. It is in no sense a trial for the 
determination of accused's guilt or innocence, but sim
ply a course of procedure whereby a possible abuse of 
power may be prevented, and accused discharged or held 
to answer, as the facts warrant. See Fed.R.Crim.P. 5(c), 
5.1. See also Suppression hearing. 
Probable cause hearing. See Preliminary hearing, above. 
Unfair hearing. See that title. 
Hearing de novo IhiriIJ diy nowvow/. Generally, a new 
hearing or a hearing for the second time, contemplating 
an entire trial in same manner in which matter was 
originally heard and a review of previous hearing. Try
ing matter anew the same as if it had not been heard 
before and as if no decision had been previously ren
dered. Ray v. Illinois Racing Bd., 1 Dist., 113 Ill.App.3d 
510, 69 Ill.Dec. 451, 454, 447 N�E.2d 886, 889. On 
hearing "de novo" court hears matter as court of origi
nal and not appellate jurisdiction. Collier & Wallis v. 
Astor, 9 Cal.2d 202, 70 P.2d 171, 173. 
Hearing examiner. Generally, a civil service employee 
of an administrative agency whose responsibility is to 
conduct hearings on matters within the agency's juris
diction. See e.g. 5 U.S.C.A. § 556(b). Now called "Ad-

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HEARING EXAMINER 
ministrative Law Judge" (q.v.) in the federal govern
ment. 
Hearing officer. See Admin istrative law judge. 
Hearsay. A term applied to that species of testimony 
given by a witness who relates, not what he knows 
personally, but what others have told him, or what he 
has heard said by others. A statement, other than one 
made by the declarant while testifying at the trial or 
hearing, offered in evidence to prove the truth of the 
matter asserted. Fed.R.Evid. 801(c). Hearsay includes 
any statement made outside the present proceeding 
which is offered as evidence of the truth of matters 
asserted therein. Also included as hearsay is nonverbal 
conduct which is intended to be the equivalent of a 
spoken assertion. Such conduct is called assertive con
duct. Under Fed.R.Evid. Rule 801(a) conduct which was 
not intended as an assertion at the time it was done is 
not hearsay. Such conduct is called nonassertive con
duct. Fed.R.Evid. Rule 801(c) also provides that asser
tions which are offered to prove something other than 
the matter asserted are not hearsay. 
Hearsay evidence is testimony in court of a statement 
made out of the court, the statement being offered as an 
assertion to show the truth of matters asserted therein, 
and thus resting for its value upon the credibility of the 
out-of-court asserter. Mutyambizi v. State, 33 Md.App. 
55, 363 A.2d 511, 518. Evidence not proceeding from 
the personal knowledge of the witness, but from the 
mere repetition of what he has heard others say. That 
which does not derive its value solely from the credit of 
the witness, but rests mainly on the veracity and compe
tency of other persons. The very nature of the evidence 
shows its weakness, and, as such, hearsay evidence is 
generally inadmissable unless it falls within one of the 
many exceptions which provides for admissibility (see 
e.g., Fed.R.Evid. 803, 804). 
See also Double (or multiple) hearsay. 
Heart balm statutes. State statutes abolishing right of 
action for alienation of affections, breach of promise to 
marry, criminal conversation, and seduction of person 
over legal age of consent. 
Hearth money. A tax levied in England by St. 14 Car. 
II, c. 10, consisting of two shillings on every hearth or 
stove in the kingdom. It was extremely unpopular, and 
was abolished by 1 W. & M., St. 1, c. 10. This tax was 
otherwise called "chimney money." 
Hearth silver. In old English law, a species of modus or 
composition for tithes; viz.: a prescription for cutting 
down and using for fuel the tithe of wood. 
Heat of passion. A term used by the common law to 
refer to the condition of a defendant who can assert 
provocation as a basis for mitigating murder to man
slaughter. Refers to passion or anger suddenly aroused 
at the time by some immediate and reasonable provoca
tion, by words or acts of one at the time. As sufficient 
to reduce killing from murder to voluntary manslaugh
ter means any intense or vehement emotional excite
ment of the kind prompting violent and aggressive ac-
722 
tion, which would cause an ordinary person to act on 
impulse without reflection. State v. Guebara, 236 Kan. 
791, 696 P.2d 381, 385. The term includes an emotional 
state of mind characterized by anger, rage, hatred, furi
ous resentment or terror. State v. Lott, 207 Kan. 602, 
485 P.2d 1314, 1317. See also Hot blood. 
Heave to. In maritime parlance and admiralty law, to 
stop a sailing vessel's headway by bringing her head 
"into the wind," that is, in the direction from which the 
wind blows. A steamer is said to be "hove to" when 
held in such a position that she takes the heaviest seas 
upon her quarter. 
Hebberthef Iheb::lrlJeyf/. In Saxon law, the privilege of 
having the goods of a thief, and the trial of him, within 
a certain liberty. 
Hebdomad Ihebd::lmred/. A week; a space of seven 
days. 
Hebephrenia Ihiyb::lfriyn(i)Y::l/. Psychotic form of schiz
ophrenia featuring regression into silly, deteriorated, or 
infantile behavior and mannerisms. 
Hebote. The king's edict commanding his subjects into 
the field. 
Heda. A small haven, wharf, or landing place. See 
Harbor; Haven. 
Hedagium Ih::ldeyjiy;:)m/. In old English law, a toll or 
customary dues at the hithe or wharf, for landing goods, 
etc., from which exemption was granted by the crown to 
some particular persons and societies. 
Hedge fund. Mutual funds that utilize various types of 
hedging techniques for their investments. See J-Iedging. 
Hedger. A commodities trader with an interest in the 
cash market for the commodity, who deals in futures 
contracts as a means of transferring risks which he or 
she faces in the cash market. Leist v. Simplot, C.A. 
N.Y., 638 F.2d 283, 287. See Hedging. 
Hedging. A means by which traders and exporters of 
grain or other products, and manufacturers who make 
contracts in advance for the sale of their goods, secure 
themselves against the fluctuations of the market by 
counter-contracts for the purchase or sale of an equal 
quantity of the product or of the material of manufac
ture. Whorley v. Patton-Kjose Co., 90 Mont. 461, 5 P.2d 
210, 214. A means by which a party who deals in the 
purchase of commodities in large quantities for actual 
delivery at some future time insures itself against unfa
vorable changes in the price of such commodities by 
entering into compensatory arrangements or counterbal
ancing transactions on the other side. Ralston Purina 
Co. v. McFarland, C.A.N.C., 550 F.2d 967, 970. A trans
action where an identified forward exchange contract is 
locked into an identified agreement to purchase or sell 
goods in the future. Siegel v. Titan Indus. Corp., C.A. 
N.Y., 779 F.2d 891, 893. 
Safeguarding one's self from loss on a bet or specula
tion by making compensatory arrangements on the oth
er side. Whorley v. Patton-Kjose Co., 90 Mont. 461, 5 
P.2d 210, 214.

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723 
For various types of hedging techniques, see Arbitrage; 
Call option; Futures contract; Option; Put option; Short 
sale. 
Cross-hedging. The use of a futures contract on one 
financial instrument to hedge a position in a different 
financial instrument. 
Hedonic damages. See Damages. 
Heedless. Term is almost as strong as word "reckless" 
and includes the element of disregard of the rights or 
safety of others. Thoughtless; inconsiderate. 
Hegemony Ih;}jem;}niy Ihej;}mowniy Ih;}geO I. The leader
ship of one among several independent confederate 
states. 
Heir I er I. See Heirs. 
Heir apparent. An heir whose right of inheritance is 
indefeasible, provided he outlive the ancestor; as in 
England the eldest son, or his issue, who must, by the 
course of the common law, be heir to the father whenev
er he happens to die. One who, before the death of the 
ancestor, is next in the line of succession, provided he be 
heir to the ancestor whenever he happens to die. See 
also Apparent heir. 
Heir at law. At common law, he who, after his ancestor 
dies intestate, has a right to all lands, tenements, and 
hereditaments which belonged to him or of which he 
was seised. The same as "heir general." 
A deceased person's "heirs at law" are those who 
succeed to his estate of inheritance under statutes of 
descent and distribution, in absence of testamentary 
disposition, and not necessarily his heirs at common law, 
who are persons succeeding to deceased's realty in case 
of his intestacy. In re Towndrow's Will, 47 N.M. 173, 
138 P.2d 1001, 1003. 
As the term is used in wrongful death statute, means 
lineal descendants. Howlett v. Greenberg, 34 Colo.App. 
356, 530 P .2d 1285, 1287. 
See also Descent; Heir, legal. 
Heir beneficiary. In the civil law, one who has accepted 
the succession under the benefit of an inventory regular
ly made. 
Heirs are divided into two classes, according to the 
manner in which they accept the successions left to 
them, to-wit, unconditional and beneficiary heirs. U n
conditional heirs are those who inherit without any 
reservation, or without making an inventory, whether 
their acceptance be express or tacit. Beneficiary heirs 
are those who have accepted the succession under the 
benefit of an inventory regularly made. Civ.Code La. 
art. 883. If the heir apprehend that the succession will 
be burdened with debts beyond its value, he accepts with 
benefit of inventory, and in that case he is responsible 
only for the value of the succession. See Beneficiary. 
Heir by adoption. By statute in most all jurisdictions, 
an adopted child takes all the rights of succession to 
intestate property as those of a natural born child unless 
a contrary intention is clearly expressed. Statutes dif-
HEIR OF THE BLOOD 
fer however as to whether such adopted child may in 
addition inherit from its natural parents or family. 
Heir by custom. In old English law, one whose right of 
inheritance depends upon a particular and local custom, 
such as gavelkind, or borough English. 
Heir by devise. One to whom lands are devised by will; 
a devisee of lands. Answering to the hreres factus (q.v.) 
of the civil law. 
Heir collateral. One who is not lineally related to the 
decedent, but is of collateral kin; e.g., his uncle, cousin, 
brother, nephew. 
Heir conventional. In the civil law, one who takes a 
succession by virtue of a contract or settlement entitling 
him thereto. 
Heirdom I erd;}m/. Succession by inheritance. 
Heiress I er;}sl . A female heir to a person having an 
estate of inheritance. When there are more than one, 
they are called "co-heiresses," or "co-heirs." 
Heir expectant. See Heir apparent. 
Heir, forced. One who cannot be disinherited. See 
Forced heirs. 
Heir general. An heir at law. The ordinary heir by 
blood, succeeding to all the lands. 
Heir hunter. Those whose business or occupation con
sists in tracking down missing heirs. 
Heir, legal. The person to whom the law would give the 
decedent's property, real and personal, if he should die 
intestate. In legal strictness, the term signifies one who 
would inherit real estate, but it is also used to indicate 
one who would take under the statute of distribution. 
See also Descent; Heir at law; Heirs. 
Heirless estate. The property of one who dies intestate 
leaving no heirs in which case there generally is escheat 
(q.v.). 
Heirlooms I erhlwmzl . In general, valued possessions of 
great sentimental value passed down through genera
tions within a family. 
In old English law, such goods and chattels as, con
trary to the nature of chattels, shall go by special 
custom to the heir along with the inheritance, and not 
to the executor. The termination "loom " (Sax.) signifies 
a limb or member; so that an heirloom is nothing else 
but a limb or member of the inheritance. They are 
generally such things as cannot be taken away without 
damaging or dismembering the freehold; such as deer in 
a park, doves in a cote, deeds and charters, etc. 
Heir, male. In English law, the nearest male blood-rela
tion of the decedent, unless further limited by the words 
"of his body," which restrict the inheritance to sons, 
grandsons, and other male descendants in the right line. 
Heir of the blood. An inheritor who succeeds to the 
estate by virtue of consanguinity with the decedent, 
either in the ascending or descending line, including 
illegitimate children, but excluding husbands, wives, 
and adopted children.

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HEIR OF THE BODY 
Heir of the body. An heir begotten or borne by the 
person referred to, or a child of such heir; any lineal 
descendant of the decedent, excluding a surviving hus
band or wife, adopted children, and collateral relations; 
bodily heir. May be used in either of two senses: In 
their unrestricted sense, as meaning the persons who 
from generation to generation become entitled by de
scent under the entail; and in the sense of heirs at law, 
or those persons who are descendants of him whom the 
statute of descent appoints to take intestate estate. 
Heir presumptive. The person who, if the ancestor 
should die immediately, would, in the present circum
stances of things, be his heir, but whose right of inheri
tance may be defeated by the contingency of some near
er heir being born; as a brother or nephew, whose 
presumptive succession may be destroyed by the birth of 
a child. 
Heir, pretermitted. One who, except for an unambig
uous act of the ancestor, would take his property on his 
death. See also Pretermitted heir. 
Heirs /erz/. At common law, the person appointed by 
law to succeed to the estate in case of intestacy. One 
who inherits property, whether real or personal. A 
person who succeeds, by the rules of law, to an estate in 
lands, tenements, or hereditaments, upon the death of 
his ancestor, by descent and right of relationship. One 
who would receive his estate under statute of descent 
and distribution. Faulkner's Guardian v. Faulkner, 237 
Ky. 147, 35 S.W.2d 6, 7. Moreover, the term is frequent
ly used in a popular sense to designate a successor to 
property either by will or by law. Word "heirs" is no 
longer limited to designated character of estate as at 
common law. Jay v. Dollarhide, 3 Cal.App.3d 1001, 84 
Cal.Rptr. 538, 547. 
Word "heirs" is a technical term and is used to desig
nate persons who would, by statute, succeed to an estate 
in case of intestacy. Wells Fargo Bank v. Title Ins. & 
Trust Co., 22 Cal.App.3d 295, 99 Cal.Rptr. 464, 466. 
See also Descent. 
Bodily laws. See Heir of the body. 
Civil law. A universal successor in the event of death. 
He who actively or passively succeeds to the entire 
property or estate, rights and obligations, of a decedent, 
and occupies his place. 
The term is indiscriminately applied to all persons 
who are called to the succession, whether by the act of 
the party or by operation of law. The person who is 
created universal successor by a will is called the "testa
mentary heir;" and the next of kin by blood is, in cases 
of intestacy, called the "heir at law," or "heir by intesta
cy." The executor of the common law in many respects 
corresponds to the testamentary heir of the civil law. 
Again, the administrator in many respects corresponds 
with the heir by intestacy. By the common law, execu
tors and administrators have no right except to the 
personal estate of the deceased; whereas the heir by the 
civil law is authorized to administer both the personal 
and real estate. The term "heir" has several significa
tions. Sometimes it refers to one who has formally 
724 
accepted a succession and taken possession thereof; 
sometimes to one who is called to succeed, but still 
retains the faculty of accepting or renouncing, and it is 
frequently used as applied to one who has formally 
renounced. 
Collateral heir. See that title. 
Joint heirs. Co-heirs. The term is also applied to those 
who are or will be heirs to both of two designated 
persons at the death of the survivor of them, the word 
"joint" being here applied to the ancestors rather than 
the heirs. 
Known heirs. See that title. 
Lawf ul heirs. See Descent; Heir at law; Heir, legal. 
Le gitimate heirs. Children born in lawful wedlock and 
their descendants, not including collateral heirs or issue 
in indefinite succession. 
Lineal heir. See Lineal heir. 
Natural heirs. Heirs by consanguinity as distingushed 
from heirs by adoption, and also as distinguished from 
collateral heirs. 
Right heir. This term was formerly used, in the case of 
estates tail, to distinguish the preferred heir, to whom 
the estate was limited, from the heirs in general, to 
whom, on the failure of the preferred heir and his line, 
the remainder over was usually finally limited. With 
the abolition of estates tail, the term has fallen into 
disuse, but when still used, in modern law, it has no 
other meaning than "heir at law." 
Heirs and assigns. Ordinarily words of limitation and 
not of purchase. At common law, the words were essen
tial to conveyance granting title in fee simple, and 
though they are unnecessary for that or any purpose 
under statute when used in wills or deeds, words still 
have that meaning. 
Heirs at law shall not be disinherited by conjecture, 
but only by express words or necessary implication. 
Maxim which means that ancestor must clearly cut off 
heir and that such disinheritance is not lightly inferred. 
Heirship / ersh:lp/. The quality or condition of being 
heir, or the relation between the heir and his ancestor. 
It is a legal right, regulated by law, to be enjoyed subject 
to the provisions of the statute. 
Heir special. In English law, the issue in tail, who 
claims per formam doni; by the form of the gift. 
Heirs per stirpes. See Per stirpes. 
Heir testamentary. In the civil law, OT '� who is named 
and appointed heir in the testament of the decedent. 
This name distinguishes him from a legal heir (one upon 
whom the law casts the succession), and from a conven
tional heir (one who takes it by virtue of a previous 
contract or settlement). 
Held. In reference to the decision of a court, means 
decided. In context of kidnapping offense, connotes a 
state or degree of physical restraint. See also Hold; 
Judgment.

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725 
HelL The name formerly given in England to a place 
under the exchequer chamber, where the king's debtors 
were confined. 
Helsing. A Saxon brass coin, of the value of a half-pen
ny. 
Henceforth IhensforOI. A word of futurity, which, as 
employed in legal documents, statutes, and the like, 
always imports a continuity of action or condition from 
the present time forward, but excludes all the past. 
Henchman. A page; an attendant; servant; a herald. 
A loyal and trusted follower. A footman; one who holds 
himself at the bidding of another. It has come to mean 
here a political follower and supporter, as used in a 
rather derogatory sense. Gates v. State, 140 Tex.Cr.R. 
228, 143 S.W.2d 780, 783, 784. Member of criminal 
gang. 
Henfare. In old English law, a fine for flight on account 
of murder. 
Henghen IheIJ�n/. In Saxon law, a prison, a gaol, or 
house of correction. 
Hengwyte IheIJw�t/. Sax. In old English law, an ac
quittance from a fine for hanging a thief. 
Henricus Vetus Ihenrayk�s viyt�s/. Henry the Old, or 
Elder. King Henry I is so called in ancient English 
chronicles and charters, to distinguish him from the 
subsequent kings of that name. 
Heordfrete, or Hedefrest. In Saxon law, a master of a 
family, keeping house, distinguished from a lower class 
of freemen, viz., folgeras (folgarii), who had no hab
itations of their own, but were house-retainers of their 
lords. 
Heordpenny Ih�rdpeniy/. Peter-pence (q.v.). 
Heordwerch Ih�rdw;)rk/. In Saxon law, the service of 
herdsman, done at the will of their lord. 
Hepburn Act. The name commonly given to an act of 
Congress (1906), amending §§ 1, 6, 14, 15, 16 and 20 of 
the Interstate Commerce Act. Such Act increased the 
jurisdiction of the I.C.C. to include pipelines; prohibited 
free passes except to employees; prohibited common 
carriers from transporting any products, except timber, 
in which they had an interest; required joint tariffs and 
uniform system of accounts. 
Heptarchy Iheptarkiy I. A government exercised by 
seven persons, or a nation divided into seven govern
ments. In the year 560, seven different monarchies had 
been formed in England by the German tribes, namely, 
that of Kent by the Jutes; those of Sussex, Wessex, and 
Essex by the Saxons; and those of East Anglia, Bernicia, 
and Deira by the Angles. To these were added, about 
the year 586, an eighth, called the "Kingdom of Mercia," 
also founded by the Angles, and comprehending nearly 
the whole of the heart of the kingdom. These states 
formed what has been designated the "Anglo-Saxon Oc
tarchy," or more commonly, though not so correctly, the 
"Anglo-Saxon Heptarchy," from the custom of speaking 
HEREDAD 
of Deira and Bernicia under the single appellation of the 
UKingdom of Northumberland." 
Herald In ancient law, a herald was a diplomatic 
messenger who carried messages between kings or 
states, and especially proclamations of war, peace, or 
truce. In English law, a herald is an officer whose duty 
is to keep genealogical lists and tables, adjust armorial 
bearings, and regulate the ceremonies at royal corona
tions and funerals. 
Heraldry Ihehr�ldriy I. The art, office, or science of 
heralds. Also an old and obsolete abuse of buying and 
selling precedence in the paper of causes for hearing. 
Heralds' College. In England, an ancient royal corpora
tion, first instituted by Richard III, in 1483. It com
prised three kings of arms, six heralds, and four mar
shals or pursuivants of arms, together with the earl 
marshal and a secretary. The heralds' books, compiled 
when progresses were solemnly and regularly made into 
every part of the kingdom, to inquire into the state of 
families, and to register such marriages and descents as 
were verified to them upon oath, are allowed to be good 
evidence of pedigrees. The heralds' office is still allowed 
to make grants of arms and to permit change of names. 
Herbage I(h)�rb�j/. In English law, an easement or 
liberty, which consists in the right to pasture cattle on 
another's ground. 
Herciscunda l(h);)rs�sk�nd�/. In the civil law, to be 
divided. Familia herciscunda, an inheritance to be di
vided. Actio familire herciscundre, an action for dividing 
an inheritance. Erciscunda is more commonly used in 
the civil law. 
Herd, n. An indefinite number, more than a few, of 
cattle, sheep, horses, or other animals of the larger sorts, 
assembled and kept together as one drove and under one 
care and management. Boland v. Cecil, 65 Cal.App.2d 
Supp. 832, 150 P.2d 819, 822. ' 
Herd, v. To tend, take care of, manage, and control a 
herd of cattle or other animals, implying something 
more than merely driving them from place to place. 
Herder. One who herds or has charge of a herd of cattle, 
in the senses above defined. 
Herdwerch, heordwerch Ih�rdw;)rk/. In old English 
law, herdsmen's work, or customary labor, done by shep
herds and inferior tenants, at the will of the lord. 
Hereafter. A word of futurity, used in statutes and legal 
documents as indicative of future time, excluding both 
the present and the past. 
Herebannum Iher�bren�m/. In old English law, a proc
lamation summoning the army into the field. A mulct 
or fine for not joining the army when summoned. A tax 
or tribute for the support of the army. 
Herebote Iherbowt/. In old English law, the royal edict 
summoning the people to the field. 
Heredad I(h)ereyoad/. In Spanish law, a piece of land 
under cultivation; a cultivated farm, real estate; an 
inheritance or heirship.

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HEREDAD YACENTE 
Heredad yacente I(h)ereydad yasentey/. From Lat. 
"Hrereditas jacens" (q.v.). In Spanish law, an inheri
tance not yet entered upon or appropriated. 
Heredero I(h)ereyderow/. In Spanish law, heir; he who, 
by legal or testamentary disposition, succeeds to the 
property of a deceased person. "Hreres censeatur cum 
defuncto una eademque persona. " 
Hereditagium Ih�red�teyj(iy)�m /. In Sicilian and Nea
politan law, that which is held by hereditary right; the 
same with hereditamentum (hereditament) in English 
law. 
Hereditaments Ih�red�t�m�nts/hehr�dit�m�nts /. 
Things capable of being inherited, be it corporeal or 
incorporeal, real, personal, or mixed, and including not 
only lands and everything thereon but also heirlooms, 
and certain furniture which, by custom, may descend to 
the heir together with the land. Things which may be 
directly inherited, as contrasted with things which go to 
the personal representative of a deceased. Denver Joint 
Stock Land Bank of Denver v. Dixon, 57 Wyo. 523, 122 
P.2d 842, 846. 
At common law corporeal hereditaments were physi
cal objects, comprehended under the term land, and 
were said to lie in livery, while incorporeal heredit
aments existed only in contemplation of law, were said 
to lie in grant and were affiliated with chattel interests. 
Corporeal hereditaments. Substantial permanent ob� 
jects which may be inherited. The term "land" will 
include all such. 
Incorporeal hereditaments. Anything, the subject of 
property, which is inheritable and not tangible or visi
ble. A right issuing out of a thing corporate (whether 
real or personal) or concerning or annexed to or exercis
able within the same. A right growing out of, or con
cerning, or annexed to, a corporeal thing, but not the 
substance of the thing itself. 
Hereditary Ih�red�t(eh)riy/. That which is the subject 
of inheritance. Genetically transmitted or transmit
table from parent to offspring. 
Hereditary right to the crown. The crown of England, 
by the positive constitution of the kingdom, has ever 
been descendible, and so continues, in a course peculiar 
to itself, yet subject to limitation by parliament; but, 
notwithstanding such limitation, the crown retains its 
descendible quality, and becomes hereditary in the 
prince to whom it is limited. 1 Bl.Comm. 19l. 
Hereditary succession. Inheritance by law; title by 
descent. The title whereby a person, on the death of his 
ancestor, acquires his estate by right of representation 
as his heir at law. See Descent. 
Heredity Ih�red�tiy I. Inheritance. That biological law 
by which all living beings tend to repeat themselves in 
their descendants. The transmission through genes of 
characteristics from parents to children. 
Herefare Iher�fer I. Sax. A going into or with an army; 
a going out to war (profectio militaris); an expedition. 
Heregeat Iheriy�tI. A heriot (q.v.). 
726 
Heregeld Iher�geld/. Sax. In old English law, a tribute 
or tax levied for the maintenance of an army. 
Heremones Iher�mowniyz/. Followers of an army. 
Herenach Iher�mi!k/. An archdeacon. 
Heres Ihiriyz/. Heir; an heir. A form of hreres, very 
common in the civil law. See Hreres. 
Hereslita, heressa, heressiz. A hired soldier who de
parts without license. 
Heresy Ihehr�siy/. In English law, an offense against 
religion, consisting not in a total denial of Christianity, 
but of some of its essential doctrines, publicly and obsti
nately avowed. Opinion or doctrine contrary to church 
dogma. An opinion on divine subjects devised by hu
man reason, openly taught, and obstinately maintained. 
This offense is now subject only to ecclesiastical correc
tion, and is no longer punishable by the secular law. 
Heretoch Ihertok/. A general, leader, or commander; 
also a baron of the realm. 
Heretofore. This word simply denotes time past, in 
distinction from time present or time future, and has no 
definite and precise signification beyond this. 
Hereunder. A word of reference in a document or law, 
directing attention to matter therein which follows in 
such document or is contained therein. 
Herge. In Saxon law, offenders who joined in a body of 
more than thirty-five to commit depredations. 
Heriot Iheriy�tI. In English law, a customary tribute of 
goods and chattels, payable to the lord of the fee on the 
decease of the owner of the land. Heriots are divided 
into heriot service and heriot custom. The former ex
pression denotes such as are due upon a special reserva
tion in a grant or lease of lands, and therefore amount 
to little more than a mere rent; the latter arise upon no 
special reservation whatever, but depend solely upon 
immemorial usage and custom. 
Herischild Iher�shild/. In old English law, a species of 
military service, or knight's fee. 
Heriscindium Iher�sindiy�m/. A division of household 
goods. 
Herislit Iher�sliyt/. Laying down of arms. Desertion 
from the army. 
Heristal Iher�stOl/. The station of an army; the place 
where a camp is pitched. 
Heritable bond Ihehr�t�b�l bond/. A bond for a sum of 
money to which is added, for further security of the 
creditor, a conveyance of land or heritage to be held by 
the creditor as pledge. 
Heritable security Ihehr�t�b�l s�kyur�diy I. Security 
constituted by heritable property. 
Heritage Ihehr�t�j/. In the civil law, every species of 
immovable which can be the subject of property; such as 
lands, houses, orchards, woods, marshes, ponds, etc., in 
whatever mode they may have been acquired, either by 
descent or purchase.

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727 
Hennandad lermandad/. In Spanish law, a fraternity 
formed among different towns and villages to prevent 
the commission of crimes, and to prevent the abuses and 
vexations to which they were subjected by men in pow
er. 
Hennapbroditus tam masculo quam feminre compar
atur, secundum prrevalentiam sexus incalescentis 
Ih;:)rmrefr;:)dayt;:)s trem mresky;:)low kwrem fem;:)niy 
komp;:)reyt;:)r, s;:)k�nd;:)m prev;:)lensh(iy);:)m seks;:)s 
inkrebsent;:)s/. An hermaphrodite is to be considered 
male or female according to the predominance of the 
exciting sex. 
Hermeneutics Ih'}rm;:)n(y)uwt;:)ks/. The science or art of 
construction and interpretation. By the phrase "legal 
hermeneutics" is understood the systematic body of 
rules which are recognized as applicable to the construc
tion and interpretation of legal writings. 
Henner Ih�rm;:)r I. A great lord. 
Hermogenian Code Ih;:)rm;:)jiyniy;:)n k6wd/. See Codex 
Hermogenianus. 
Hernescus Ih;:)rnesk;:)s/. A heron. 
Heroin. Narcotic drug which is a derivative of opium 
and whose technical name is diacetyl-morphine. It is 
classified as a Class A substance for criminal purposes 
and the penalty for its unlawful manufacture, distribu
tion, sale, or possession is severe. 21 V.S.C.A. § 84 1. 
Heroud, heraud Iher;:)(l)d/. L. Fr. A herald. 
Herus I(h)ir;:)s/. Lat. A master. Servus tacit ut herus 
det, the servant does [the work] in order that the master 
may give [him the wages agreed on]. Herus dat ut 
servus tacit, the master gives [or agrees to give, the 
wages], in consideration of, or with a view to, the serv
ant's doing [the work]. 2 Bl.Comm. 445. 
Hesia Ihiyz(h)(i)y;:)/. An easement. 
Hetrerarcha I het;:)rark;:) I . The head of a religious house; 
the head of a college; the warden of a corporation. 
Hetreria Ih;:)tiriy;:)/. In Roman law, a company, society, 
or college. 
Heuvelborh Ihyuwv;:)lbor(k)/. Sax. In old English law, 
a surety (warrantus). 
He who comes into a court of equity must come with 
clean hands. See Clean hands doctrine. 
He who has committed iniquity shall not have equi
ty. See Clean hands doctrine. 
He who is silent when conscience requires him to 
speak shall be debarred from speaking when con
science requires him to be silent. A maxim of equity 
invoked when a person who has a duty to speak and to 
disclose a matter is silent so as to conceal that which 
should be revealed but who seeks equitable relief against 
him to whom it should have been disclosed. 
He who seeks equity must do equity. This expression 
means that the party asking the aid of a court for 
equitable relief must stand in a conscientious relation 
toward his adversary and the transaction from which 
HIERARCHY 
his claim arises must be fair and just and the relief must 
not be harsh and oppressive upon defendant. Jacklich 
v. Baer, 57 Cal.App.2d 684, 135 P.2d 179, 184. This 
maxim provides that court will not confer equitable 
relief on party seeking its aid, unless he has acknowl
edged and conceded or will admit and provide for all 
equitable rights, claims, and demands justly belonging 
to adverse party and growing out of or necessarily 
involved in subject matter of controversy. Bates v. 
Dana, 345 Mo. 311, 133 S.W.2d 326, 329. It is in 
pursuance of this maxim that equity enforces the right 
of the wife's equity to a settlement. 
He who will have equity done to him must do equity 
to the same person. This maxim of equity provides 
that conduct which, by itself, is not illegal or even 
morally reprehensible but which is contrary to princi
ples of equity will bar one who seeks equitable relief 
from one against whom such conduct is directed. 
HHS. Federal Department of Health and Human Servic
es. 
Hidage Ihayd;:)j/. In old English law, an extraordinary 
tax formerly payable to the crown for every hide of land. 
This taxation was levied, not in money, but provision of 
armor, etc. 
Hidalgo I(h)iyoalgow/. In Spanish law, a noble; a per
son entitled to the rights of nobility. By hidalgos are 
understood men chosen from good situations in life (de 
buenos lugures), and possessed of property (algo). 
Hidalguia I (h)iyoalgiy;:) I . In Spanish law, nobility by 
descent or lineage. 
Hidden asset. Asset carried on books at a SUbstantially 
reduced or understated value; its market value being 
greater than its book value. 
Hidden defect. Type of deficiency in property which is 
not discoverable by reasonable inspection and for which 
a lessor or seller is generally liable if such defect causes 
harm to a user, and for which a purchaser is provided a 
right to revoke a prior acceptance. V.C.C. § 2-608(1)(b). 
See also Defect; Latent defect. 
Hidden tax. Tax built into ultimate selling price that 
was incurred at a prior manufacturing or distribution 
stage. 
Hide. In old English law, a measure of land, being as 
much as could be worked with one plow. It is variously 
estimated at from 60 to 100 acres, but was probably 
determined by local usage. Another meaning was as 
much land as would support one family or the dwellers 
in a mansion-house. Also a house; a dwelling-house. A 
hide was anciently employed as a unit of taxation. 
Hidel Ihayd;:)l/. In old English law, a place of protection; 
a sanctuary. 
Hidgild Ihaydgild/. A sum of money paid by a villein or 
servant to save himself from a whipping. 
Hierarchy Ihay(;:))rarkiy/hiy;:)ro. Originally, government 
by a body of priests. Now, the body of of ficers in any 
church or ecclesiastical institution, considered as form-

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HIERARCHY 
ing an ascending series of ranks or degrees of power and 
authority, with the correlative subjection, each to the 
one next above. Derivatively, any body of persons orga
nized or classified according to authority, position, rank, 
or capacity. 
High. This term, as used in various compound legal 
phrases, is sometimes merely an addition of dignity, not 
importing a comparison; but more generally it means 
exalted, either in rank or location, or occupying a posi
tion of superiority, and in a few instances it implies 
superiority in respect to importance, size, or frequency 
or publicity of use, e.g., "high seas," "highway." 
As to high Bailiff; Constable; Crime; Justice; Justiciar; 
License; Prerogative writs; Probabil ity (High probability 
rule); School; Sea; Sheriff; Tide; Treason; Water-mark, 
see those titles. 
High Commission Court. See Court of High Commission. 
High Court of Admiralty. See Court of Admir alty. 
High Court of Delegates. See Court of Delegates. 
High Court of Errors and Appeals. See Court of Errors 
and Appeals. 
High Court of Parliament. See Parliament. 
High degree of care and diligence. See Care. 
High degree of negligence. See Negligence (Gross neg
ligence). 
Higher and lower scale. In the practice of the English 
supreme court of judicature there were two scales regu
lating the fees of the court and the fees which solicitors 
were entitled to charge. The lower scale applied (unless 
the court otherwise ordered) to the following cases: All 
causes and matters assigned by the judicature acts to 
the king's bench, or the probate, divorce, and admiralty 
divisions; all actions of debt, contract, or tort; and in 
almost all causes and matters assigned by the acts to the 
chancery division in which the amount in litigation was 
under £1,000. The higher scale applied in all other 
causes and matters, and also in actions falling under one 
of the above classes, but in which the principal relief 
sought to be obtained was an injunction. 
Highest and best use. In real estate valuation (e.g. in 
condemnation proceedings) the use of land or buildings 
which will bring the greatest economic return over a 
given time. This method of valuation requires expert to 
determine what condemned property's fair market value 
would realistically be if owner were hypothetically al
lowed to adapt his property to its most advantageous 
and valuable use. Raleigh-Durham Airport Authority v. 
King, 75 N.C.App. 57, 330 S.E.2d 622, 626. 
Highest court. Court of last resort; a court whose 
decision is final and cannot be appealed because there is 
no higher court to further consider such matter; e.g. 
U.S. Supreme Court is highest federal court. 
Highest degree of care. That degree of care that a very 
careful and prudent person would use under same or 
similar circumstances. Schneider v. Bi-State Develop
ment Agency, Mo.App., 447 S.W.2d 788, 791. A stan
dard of care exacted in some jurisdictions of common 
728 
carriers of passengers. The standard is relative, not 
absolute, and is sometimes regarded as no more than 
reasonable care measured by the circumstances. 
Highest proved value. In an action of trover the 
amount which the jury from a consideration of all the 
evidence, may find to be the highest value of the proper
ty during the period between the conversion and the 
trial. 
Highgrading. The practice, in mining vernacular, of 
stealing ore. People v. Siderius, 29 Cal.App.2d 361, 84 
P.2d 545, 547. 
Highness. A title of honor given to princes. The kings 
of England, before the time of James I were not usually 
saluted with the title of "Majesty", but with that of 
"Highness". The children of crowned heads generally 
receive the title of "Highness". Since 1917 the title 
"Royal Highness" is limited to the sovereign's children, 
and children of sons of the sovereign, and the eldest 
living son of the eldest living son of the Prince of Wales. 
High seas. That portion of ocean which is beyond the 
territorial jurisdiction of any country. The "high seas" 
lie seaward of a nation's territorial sea, which is the 
bank of water that extends up to three miles out from 
the coast. U.S. v. Romero-Galue, C.A.Fla., 757 F.2d 
11 47, 1149. See 18 U.S.C.A. § 3241 for jurisdiction of 
federal courts over crimes committed on high seas. See 
also Sea; Territorial waters. 
High water line or mark. The line on the shore to 
which high tide rises under normal weather conditions. 
High-water mark is generally computed as a mean or 
average high tide and not as extreme height of water. 
Carolina Beach Fishing Pier, Inc. v. Town of Carolina 
Beach, 277 N.C. 297, 177 S.E.2d 513, 516. High water 
mark of navigable river is line to which high water 
ordinarily reaches and is not line reached by water in 
unusual floods; it is that line below which soil is unfit 
for vegetation or agricultural purposes. State v. Bonelli 
Cattle Co., 108 Ariz. 258, 495 P.2d 1312, 1314. 
Highway. A free and public roadway, or street; one 
which every person has the right to use. In popular 
usage, refers to main public road connecting towns or 
cities. The entire width between boundaries of every 
publicly maintained way when any part is open to use of 
the public for purposes of vehicular traffic. Kimes By 
and Through Kimes v. Herrin, 217 Mont. 330, 705 P.2d 
108, 11 0. In broader sense, refers to any main route on 
land, water, or in the air. 
The term "highway," as generally understood, does 
not have a restrictive or a static meaning, but it denotes 
ways laid out or constructed to accommodate modes of 
travel and other related purposes that change as cus
toms change and as technology develops, and the term 
"highway," as it is generally understood, includes areas 
other than and beyond the boundaries of the paved 
surface of a roadway. Opinion of the Justices to the 
Senate, Mass., 352 N.E.2d 197, 201. 
Commissioners of Highways. Public officers appointed 
in states, counties and municipalities to take charge of 
constructing, altering, repairing and vacating of high
ways within their respective jurisdictions.

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729 
Common highway. A road to be used by the community 
at large for any purpose of transit or traffic. 
Highway acts, or laws. The body or system of laws 
governing the laying out, construction, repair, and use of 
highways. 
Highway crossing. A place where the track of a railroad 
crosses the line of a highway. 
Highway-rate. In English law, a tax for the mainte
nance and repair of highways, chargeable upon the same 
property that is liable to the poorrate. 
Highway robbery. See Hijacking; Robbery. 
Highway tax. A tax for and applicable to the making 
and repair of highways. 
Highway toll. See Toll. 
Public highway. One under the control of and main
tained by public authorities for use of the general public; 
including every public street, road or highway. Calif. 
Code Pub. Utilities, § 3509. 
Highwayman. A bandit; one who robs travelers upon 
the highway. Anderson v. Hartford Accident & Indem
nity Co., 77 Cal.App. 641, 247 P. 507, 510. See also 
Hijacking. 
Higler Ihigbr/. In English law, a hawker or peddler. A 
person who carries from door to door, and sells by retail, 
small articles of provisions, and the like. 
Higuela l(h)iygeyl�/. In Spanish law, a receipt given by 
an heir of a decedent, setting forth what property he has 
received from the estate. 
H.I.H. His (or her) Imperial Highness. 
Hiis testibus Ihays test�b�s/. Words formerly used in 
deeds, signifying these being witness. They have been 
disused since Henry VIII. 
Hijacking. Robbery of goods while in transit, commonly 
from trucks. May involve robbery of only goods, or of 
both vehicle and goods. May also refer to commandeer
ing an airplane. See 18 U.S.C.A. §§ 1951, 211 7. See 
also Piracy. 
Hilary Rules lhil�riy ruwlz/. A collection of orders and 
forms extensively modifying the pleading and practice 
in the English superior courts of common law, estab
lished in Hilary term, 1834. 
Hilary term. In English law, a term of court, beginning 
on the 11 th and ending on the 31st of January in each 
year. Superseded (1875) by Hilary sittings, which begin 
January 11th, and end on the Wednesday before Easter. 
See also Easter, Michaelmas, Trinity terms. 
Hilton doctrine. In civil procedure, rule that in a 
dispute between parties to an oil and gas lease, royalty 
holders who would lose their rights if the lease to the 
defendant was terminated are regarded as indispensable 
parties to the proceeding challenging the lease. Hilton 
v. Atlantic Refining Co., C.A.Tex., 327 F.2d 217. 
Hindeni homines Ihindiynay h6m�niyz /. A society of 
men. The Saxons ranked men into three classes, and 
valued them, as to satisfaction for injuries, etc., accord-
HISSA 
ing to their class. The highest class were valued at 
1,200s., and were called "twelf hindmen" ; the middle 
class at 600s., and called "sexhindmen ':. the lowest at 
200s., called "twyhindmen " . Their wives were termed 
"hindas." 
Hinder. Obstruct or impede. 
Hine, or hind. In old English law, a husbandry servant. 
Hinefare Ihayn(d)fer/. In old English law, the loss or 
departure of a servant from his master. 
Hinegeld Ihayn(d)geld/. A ransom for an offense com
mitted by a servant. 
Hipoteca I(h)iypowteyka/. In Spanish law, a mortgage 
of real property. 
Hirciscunda l(h);)rs�sk;)nd�/. See Herciscunda. 
Hire, v. To purchase the temporary use of a thing, or to 
arrange for the labor or services of another for a stipu
lated compensation. See also Employ; Rent. Compare 
Lease. 
Hire, n. Compensation for the use of a thing, or for labor 
or services. State v. Kenyon, Inc., Tex.Civ.App., 153 
S.W.2d 195, 197. Act of hiring. A bailment in which 
compensation is to be given for the use of a thing, or for 
labor and services about it. 
Hirer. One who hires a thing, or the labor or services of 
another person. See also Employer. 
Hiring. See Hire. 
Hiring at will. A general or indefinite hiring with right 
to terminate such at will of employer. Long v. Forbes, 
58 Wyo. 533, 136 P.2d 242, 246. See Emplo yment at will. 
Hiring hall. Agency or office operated by union, by 
employer and union, or by state or local employment 
service, to provide and place employees for specific jobs. 
His. This pronoun, generically used, may refer to a 
person of either sex. Its use in a written instrument, in 
referring to a person whose Christian name is designat
ed therein by a mere initial, is not conclusive that the 
person referred to is a male; it may be shown by parol 
that the person intended is a female. 
His Excellency. In English law, the title of a viceroy, 
governor general, ambassador, or commander in chief. 
In American law, this title is given to the governor of 
Massachusetts by the constitution of that state; and it is 
commonly given, as a title of honor and courtesy, to the 
governors of the other states and to the president of the 
United States and also to certain members of the clergy. 
It is also customarily used by foreign ministers in ad
dressing the secretary of state in written communica
tions. 
His Honor. A title given by the Constitution of Massa
chusetts to the lieutenant governor of that common
wealth. Mass.Const. part 2, c. 2, § 2, art. 1. It is also 
customarily given to some inferior magistrates, as the 
mayor of a city. 
Hissa Ihis�/. A lot or portion; a share of revenue or 
rent.

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HIS TESTIBUS 
His testibus Ihilys test�b�s /. Lat. These being witness
es. The attestation clause in old deeds and charters. 
See Hiis testibus. 
Historical cost. In accounting, acquisition or original 
cost; e.g. original construction cost of bUilding. 
Historic bay. Those bays over which a coastal nation 
has traditionally asserted and maintained dominion 
with the acquiescence of foreign nations. V.S. v. Louisi
ana, 470 V.S. 93, 105 S.Ct. 1074, 84 L.Ed.2d 73. 
Historic preservation. An ordinance which prohibits 
the demolition or exterior alteration of certain historic 
buildings or of all buildings in an historic district. See 
Historic site. 
Historic site. Any building, structure, area or property 
that is significant in the history, architecture, archeolo
gy or culture of a State, its communities or the Nation 
and has been so designated pursuant to statute. Such 
structures are commonly statutorily protected and can
not be altered without permission of the appropriate 
authorities. See, e.g., 16 V.S.C.A. § 461 et seq. 
Hit and run accident. Collision generally between mo
tor vehicle and pedestrian or with another vehicle in 
which the operator of vehicle leaves scene without iden
tifying himself and without giving certain other infor
mation to other motorist and police as usually required 
by statute. Such an act is a crime. 
Most states by statute require that motorists involved 
in accidents to stop at the scene and provide certain 
information to police and other drivers and passengers 
involved. 
Hitherto. In legal use, this term always restricts the 
matter in connection with which it is employed to a 
period of time already passed. 
H.L. House of Lords. 
Hlafreta l(h)lilfiyt� /. Sax. A servant fed at his master's 
cost. 
Hlaford I(h)hl!v;}rd/. Sax. A lord. 
Hlafordsocna l(h)lrev�rdsowkn� /. Sax. A lord's protec
tion. 
Hlafordswice I(h)lrev;}rdzwitys/. Sax. In Saxon law, 
the crime of betraying one's lord (proditio domini); trea
son. 
Hlasocna l(h)lresowkn� /. Sax. The benefit of the law. 
HLA test. A system of tissue typing for determining the 
probability of paternity and which involves the drawing 
of blood. Pizana v. Jones, 127 Mich.App. 123, 339 
N.W.2d 1, 3. See also DNA identification. 
Hlothbote l(h)l60bowt/. In Saxon law, a fine for being 
present at an unlawful assembly. 
Hlothe l(h)l6wOI. In Saxon law, an unlawful assembly 
from eight to thirty-five, inclusive. 
HMO. See Health Maintenance Organization. 
730 
Hoarding. Act of holding and acquiring goods in short 
supply beyond the reasonable needs of the person so 
holding. See also Profiteering. 
Fence enclosing house and materials while builders 
are at work. 
Hobblers Ih6bl;}rzl. In old English law, light horsemen 
or bowmen; also certain tenants, bound by their tenure 
to maintain a little light horse for giving notice of any 
invasion, or such like peril, towards the seaside. 
Hobbs Act. Federal anti-racketeering act making it a 
crime to interfere with interstate commerce by extor
tion, robbery, or physical violence. 18 V.S.C.A. § 19 51. 
Racketeering offenses are defined in 18 V.S.C.A. § 1961. 
See Racketeering; RIC O laws. 
Hobby. An activity not engaged in for profit. The IRC 
restricts the amount of losses that an individual can 
deduct with respect to hobby activities so that such 
transactions cannot be used to offset income from other 
sources. I.R.C. § 183. See Hobby loss. 
Hobby loss. A nondeductible loss arising from a person
al hobby as contrasted with an activity engaged in for 
profit. Generally, the law provides a presumption that 
an activity is engaged in for profit if gross profits are 
earned during any 2 or more years during a 5 year 
period. I.R.C. § 183. 
Hoc Ih6k/. Lat. This. Hoc intuitu, with this expecta
tion. Hoc loco, in this place. Hoc nomine, in this name. 
Hoc titulo, under this title. Hoc voce, under this word. 
Hoc paratus est verificare Ih6k p�reyt;}s est ver�
f�keriy/. Lat. This he is ready to verify. 
Hoc quidem perquam durum est, sed ita lex scripta 
est Ih6k kwilyd;}m p�rkw�m dyUr;}m est, sed ilyt;} leks 
skript� est/. Lat. This indeed is exceedingly hard, but 
so the law is written; such is the written or positive law. 
An observation quoted by Blackstone as used by Vlpian 
in the civil law; and applied to cases where courts of 
equity have no power to abate the rigor of the law. 
Hoc servabitur quod initio convenit Ih6k s�rveyb;}t;}r 
kwod �nish(iy)ow k�nviyn ;}t/. This shall be preserved 
which is useful in the beginning. 
Hodge-Podge Act. A name applied to a statute which 
comprises a medley of incongruous subjects. 
Hoghenhyne Ih6w�nhityn(d)/. In Saxon law, a house
servant. Any stranger who lodged three nights or more 
at a man's house in a decennary was called "hoghen
hyne, " and his host became responsible for his acts as for 
those of his servant. 
Hold, v. 1. To possess in virtue of a lawful title; as in 
the expression, common in grants, "to have and to 
hold," or in that applied to notes, "the owner and 
holder." 
2. To be the grantee or tenant of another; to take or 
have an estate from another. Properly, to have an 
estate on condition of paying rent, or performing service.

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3. To adjudge or decide, spoken of a court, particular
ly to declare the conclusion of law reached by the court 
as to the legal effect of the facts disclosed. See Holding. 
4. To maintain or sustain; to be under the necessity 
or duty of sustaining or proving; as when it is said that 
a party "holds the af firmative" or negative of an issue in 
a cause. 
5. To bind or obligate; to restrain or constrain; to 
keep in custody or under an obligation; as in the phras
es "hold to bail," "hold for court," "held and firmly 
bound," etc. 
6. To administer; to conduct or preside at; to con
voke, open, and direct the operations of; as to hold a 
court, hold pleas, etc. 
7. To prosecute; to direct and bring about officially; 
to conduct according to law; as to hold an election. 
8. To possess; to occupy; to be in possession and 
administration of; as to hold office. 
9. To keep; to retain; to maintain possession of or 
authority over. 
See also Ownership; Possession. 
Hold over. To retain possession as tenant of property 
leased, after the end of the term. To continue in posses
sion of an office and continue to exercise its functions, 
after the end of the officer's lawful term. 
Hold pleas. To hear or try causes. 3 BI.Comm. 35, 298. 
Hold, n. In old English law, tenure. A word constantly 
occurring in conjunction with others, as freehold, lease
hold, copyhold, etc., but rarely met with in the separate 
fo rm. 
Holder. The holder of a bill of exchange, promissory 
note, check, or other commercial paper, is the person 
who has legally acquired possession of the same, by 
indorsement or delivery, and who is entitled to receive 
payment of the instrument. Person who is in possession 
of a document of title or an instrument or an investment 
security drawn, issued or endorsed to him or to his 
order, or to bearer or in blank. V.C.C. § 1-201(20). 
Holder for value. A holder who has given a valuable 
consideration for the document of title, instrument or 
investment security which he has in his possession. A 
holder takes an instrument for value: (a) to the extent 
that the agreed consideration has been performed or 
that he acquires a security interest in, or a lien on, the 
instrument otherwise than by legal process; or (b) when 
he takes the instrument in payment of, or as security 
for, an antecedent claim against any person whether or 
not the claim is due; or (c) when he gives a negotiable 
instrument for it or makes an irrevocable commitment 
to a third person. V.C.C. § 3-303. 
Holder in due course. In commercial law, a holder of 
an instrument who took it for value, in good faith and 
without notice of any claim or defense against it, V.C.C. 
§ 3-302(1), and who can enforce the instrument free 
from all claims and personal defenses. V.C.C. § 3-305. 
A payee may be a holder in due course. A holder does 
not become a holder in due course of an instrument by 
HOLDING COMPANY 
purchase of it at a judicial sale or by taking it under 
legal process, or by acquiring it in taking over an estate, 
or by purchasing it as part of a bulk transaction not in 
regular course of business of the transferor. A purchas
er of a limited interest can be a holder in due course 
only to the extent of the interest purchased. Kaw 
Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, 
549 P .2d 927, 933. 
A holder in due course of a consumer credit contract 
(i.e. consumer paper) is subject to all claims and defenses 
which the debtor (buyer) could assert against the seller 
of the goods or services obtained pursuant to the credit 
contract or with the proceeds thereof. 16 CFR § 433.1 et 
seq. 
Compare Bona fide purchaser. See also Real defenses. 
Holder in good faith. One who takes property or an 
instrument without knowledge of any defect in its title. 
Hold harmless agreement. A contractual arrangement 
whereby one party assumes the liability inherent in a 
situation, thereby relieving the other party of responsi
bility. Such agreements are typically found in leases, 
and easements. Agreement or contract in which one 
party agrees to hold the other without responsibility for 
damage or other liability arising out of the transaction 
involved. See also Guaranty; Indemn ity; Surety. 
Holding. The legal principle to be drawn from the 
opinion (decision) of the court. Opposite of dictum (q.v.). 
It may refer to a trial ruling of the court upon evidence 
or other questions presented during the trial. Edward 
L. Eyre & Co. v. Hirsch et aI., 36 Wash.2d 439, 218 P.2d 
888. Also, general term for property, securities, etc. 
owned by person or corporation. See also Decision; 
Dicta. 
In English law, a piece of land held under a lease or 
similar tenancy for agricultural, pastoral, or similar 
purposes. 
Holding company. A company that usually confines its 
activities to owning stock in, and supervising manage
ment of, other companies. A holding company usually 
owns a controlling interest in the companies whose stock 
it holds. In order for a corporation to gain the benefits 
of tax consolidation, including tax free dividends and the 
ability to share operating losses, the holding company 
must own 80% or more of the voting stock of the 
corporation. I.R.C. § 243. See also Investment company. 
Personal holding company. A closely held corporation 
which receives personal holding company income. Per
sonal holding income includes but is not limited to: 
dividends, interest, rents, royalties, etc. If a company 
comes within the definition of a personal holding compa
ny, it may be subject to the regular corporate tax, as 
well as a personal holding company tax on the undistrib
uted personal holding company income. The tax is 
imposed to prevent individuals from accumulating in
come in the corporation and not sub jecting the individu
als to the personal income tax on the earnings. See also 
Holding company tax; Personal holding company.

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HOLDING COMPANY TAX 
Holding company tax. Tax on undistributed personal 
holding company income after allowable deductions for 
dividends paid, etc. I.R.C. § 545. 
Holding period. In taxation, that period of time in 
which a capital asset must be held to determine whether 
gain or loss from its sale or exchange is long term or 
short term. I.R.C. §§ 1222-1223. 
Holdings. Extent of ownership of investments (real es
tate, securities, etc.). 
Holdover tenant. A tenant who remains in possession 
after the expiration of a lease, or after a tenancy at will 
has been terminated. 
Holiday. A religious festival; a day set apart for com
memorating some important event in history; a day of 
exemption from labor. A day upon which the usual 
operations of business and government are suspended 
and the courts closed, and, generally, no legal process is 
permitted to be served. In addition to national holidays 
(e.g. Fourth of July), there are also state holidays (e.g. 
"Bunker Hill" holiday in Massachusetts). 
Legal holiday. See Legal holiday. 
Public holiday. A legal holiday (q. v.). 
Statutory holidays. Most states observe the same holi
days as those observed by the federal government (see 5 
U.S.C.A. § 6103). There are variations however, e.g., 
several states do not celebrate Columbus Day, several 
states do not observe the National Memorial Day, while 
many other states have special holidays commemorating 
historical events, the birthdays of state or regional he
ros, religious festival days, or other occasions deemed 
worthy of celebration. See also Legal holiday. 
Holografo I(h)owlografow/. In Spanish law, a holo
graph. An instrument (particularly a will) wholly in 
the handwriting of the person executing it; or which, to 
be valid, must be so written by his own hand. 
Holograph Iho(w)l;)grrefl. A will or deed written entire
ly by the testator or grantor with his own hand and not 
witnessed (attested). State laws vary widely with re
spect to the status of self-written "holographic" wills. 
Some states categorically refuse to recognize any will 
not meeting the formal statutory requirements relating 
to attestation clause, witnesses, etc. Others will recog
nize a holographic will if all or certain portions are in 
the handwriting of the testator. And many states that 
do not recognize holographic wills executed by their own 
citizens within their borders will nevertheless recognize 
such wills if valid under other jurisdictions. Under the 
Uniform Probate Code (as adopted by several states), 
such will is valid, whether or not witnessed, if the 
signature and the material provisions are in the hand
writing of the testator. § 2-503. 
Holy Orders. In ecclesiastical law, the orders of bishops 
(including archbishops), priests, and deacons in the 
Church of England. The Roman canonists had the 
orders of bishop (in which the pope and archbishops 
were included), priest, deacon, subdeacon, psalmist, aco-
732 
lyte, exorcist, reader, ostiarius. One of the seven sacra
ments of the Roman Catholic Church. 
Homage I(h)om;)j/. In feudal law, a service (or the 
ceremony of rendering it) which a tenant was bound to 
perform to his lord on receiving investiture of a fee, or 
succeeding to it as heir, in acknowledgment of the ten
ure. It is described as the most honorable service of 
reverence that a free tenant might do to his lord. The 
ceremony was as follows: The tenant, being ungirt and 
with bare head, knelt before the lord, the latter sitting, 
and held his hands extended and joined between the 
hands of the lord, and said: "I become your man [homo] 
from this day forward, of life and limb and earthly 
honor, and to you will be faithful and loyal, and bear 
you faith, for the tenements that I claim to hold of you, 
saving the faith that l owe unto our sovereign lord the 
king, so help me God." The tenant then received a kiss 
from the lord. Homage could be done only to the lord 
himself. "Homage" is to be distinguished from "fealty," 
another incident of feudalism, and which consisted in 
the solemn oath of fidelity made by the vassal to the 
lord, whereas homage was merely an acknowledgment 
of tenure. If the homage was intended to include fealty, 
it was called "liege homage;" but otherwise it was called 
"simple homage." 
Homage ancestral. In feudal law, homage was called 
by this name where a man and his ancestors had imme
morially held of another and his ancestors by the service 
of homage, which bound the lord to warrant the title, 
and also to hold the tenant clear of all services to 
superior lords. If the tenant aliened in fee, his alienee 
was a tenant by homage, but not by homage ancestral. 
2 Bl.Comm. 300. 
Homage jury. In feudal law, a jury in a court-baron, 
consisting of tenants that do homage, who are to inquire 
and make presentments of the death of tenants, surren
ders, admittances, and the like. 
Homage liege l(h)om;)j liyj/. In feudal law, that kind of 
homage which was due to the sovereign alone as su
preme lord, and which was done without any saving or 
exception of the rights of other lords. 
Homager I(h)om;)j;)r/. In feudal law, one who does or is 
bound to do homage. 
Homagio respectuando Ih;)meyj(iy)ow r;)spekty
wrendow I. A writ to the escheator commanding him to 
deliver seisin of lands to the heir of the king's tenant, 
notwithstanding his homage not done. 
Homagium Ih;)meyj(iy);)m/. L. Lat. Homage (q.v.). 
Homagium ligium Ih;)meyj(iy);)m layj(iy);)m/. In feudal 
law, liege homage; that kind of homage which was due 
to the sovereign alone as supreme lord, and which was 
done without any saving or exception of the rights of 
other lords. So called from ligando (binding), because it 
could not be renounced like other kinds of homage. 
Homagium, non per procuratores nec per literas fieri 
potuit, sed in propria persona tam domini quam 
tenentis capi debet et fieri Ih;)meyj(iy);)m, non p;)r 
prokyur;)tOriyz nek p;)r lit;)r;)s fay;)ray potuw;)t, sed in

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pr6wpriy� p�rs6wn� trem d6m�nay kwrem t�nent�s 
krepay deb�t et fay�ray I. Homage cannot be done by 
proxy, nor by letters, but must be paid and received in 
the proper person, as well of the lord as the tenant. 
Homagium planum Ih�meyj(iy)�m pleyn�m/. In feudal 
law, plain homage; a species of homage which bound 
him who did it to nothing more than fidelity, without 
any obligation either of military service or attendance in 
the courts of his superior. 
Homagium reddere Ih�meyj(iy)�m red�riy I. In feudal 
law, to renounce homage. This was when a vassal made 
a solemn declaration of disowning and defying his lord; 
for which there was a set form and method prescribed 
by the feudal laws. 
Homagium simplex Ih�meyj(iy)�m simpleks/. In feudal 
law, simple homage; that kind of homage which was 
merely an acknowledgment of tenure, with a saving of 
the rights of other lords. 
Hombre bueno l(h)6mbrey bweynow/. In Spanish law, 
the judge of a district. Also an arbitrator chosen by the 
parties to a suit. Also a man in good standing; one who 
is competent to testify in a suit. 
Home. One's own dwelling place; the house in which 
one lives, especially the house in which one lives with 
his family; the habitual abode of one's family; a dwell
ing house. Mann v. Haines, 146 Kan. 988, 73 P.2d 1066, 
1072. That place in which one in fact resides with the 
intention of residence, or in which he has so resided, and 
with regard to which he retains residence or to which he 
intends to return. Place where a person dwells and 
which is the center of his domestic, social and civil life. 
Restatement of Conflicts, Second, § 12. As relating to 
deductions of expenses for carrying on a trade or busi
ness while living away from home, "home" within I.R.C. 
§ 162(a)(2) is defined as taxpayer's principal place of 
business. Ellwein v. U.S., C.A.N.D., 778 F.2d 506, 509. 
See also Domicile; Residence; Tax home. 
Home brew. An intoxicating beverage made at home or 
on general premises. Moonshine. 
Home loan bank. See Federal Home Loan Banks. 
Home ne sera puny pur suer des briefes en court Ie 
roy, soit il a droit ou a tort. A man shall not be 
punished for suing out writs in the king's court, whether 
he be right or wrong. 
Home office. The department of state through which 
the English sovereign administers most of the internal 
affairs of the kingdom, especially the police, and commu
nicates with the judicial functionaries. As applied to a 
corporation, its principal office or corporate head
quarters. 
Homeowner's association. An association of people 
who own homes in a given area, formed for the purpose 
of improving or maintaining the quality of the area. 
An association formed by a land developer or the 
builder of condominiums or planned unit developments 
to provide management for and maintenance of property 
in which they own undivided, common interest. The 
HOME RULE 
builder's participation as well as the duties of the associ
ation are controlled by statute in certain states. Such 
non-profit associations are commonly formed pursuant 
to a restrictive covenant or a declaration of restrictions. 
Homeowner's equity loan. See Equity loan. 
Homeowners policy. In insurance, multi-peril type pol
icy available to homeowners, combining coverage for 
fire, water, burglary, liability, etc. 
Home Owners Warranty (HOW). A warranty and in
surance protection program offered by many home 
builders in the United States. The program was devel
oped by the Home Owners Warranty Corporation, a 
subsidiary of the National Association of Home Builders. 
The major provisions of the program are that a new 
home is protected for ten years against major structural 
defects. Similar warranty protection is provided by 
statute in many states. 
Home port. In maritime law, the home port of a vessel 
is either the port where she is registered or enrolled, or 
the port at or nearest to which her owner usually 
resides, or, if there be more than one owner, the port at 
or nearest to which the husband, or acting and manag
ing owner resides. But for some purposes any port 
where th� owner happens at the time to be with his 
vessel is its home port. Under the shipping laws, every 
vessel has what is called her "home port," to which she 
belongs, and which constitutes her legal abiding place or 
residence, regardless of her actual absence therefrom. 
See also Port. 
Home port doctrine. Under "home-port" doctrine ves
sels engaged in interstate and foreign commerce are 
taxable at their home port only. Scandinavian Airlines 
System, Inc. v. Los Angeles County, 56 Ca1.2d 11, 14 
Cal.Rptr. 25, 29, 363 P.2d 25. Under this doctrine a 
vessel plying the high seas may be taxed at its full value 
in its home port or in true domicile of its owner, and no 
other jurisdiction, including those ports visited by the 
vessel during its voyages, has power to tax it. Star-Kist 
Foods, Inc. v. Byram, 241 C.A.2d 313, 50 Cal.Rptr. 381, 
382, 385. 
Where repairs have been made, or necessaries fur
nished to a foreign ship, or to a ship in a port of the 
State to which she does not belong, the general mari
time law, following the civil law, gives the party a lien 
on the ship itself for his security; and he may well 
maintain a suit in rem in the Admiralty to enforce his 
right. But in respect to repairs and necessaries in the 
port or State to which the ship belongs, the case is 
governed altogether by the municipal law of that State; 
and no lien is implied, unless it is recognized by that 
law. The General Smith, 17 U.S. (4 Wheat.) 438, 442, 4 
L.Ed. 609. 
Home rule. State constitutional provision or type of 
legislative action which results in apportioning power 
between state and local governments by providing local 
cities and towns with a measure of self government if 
such local government accepts terms of the state legisla
tion. See also Local option.

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HOME RULE CHARTER 
Home rule charter. The organizational plan or frame
work of a municipal corporation, analogous to a consti
tution of a state or nation, drawn by the municipality 
itself and adopted by popular vote of its people. 
Homestead. The dwelling house and the adjoining land 
where the head of the family dwells; the home farm. 
The fixed residence of the family, with the land, usual 
and customary appurtenances, and buildings surround
ing the main house. 
Technically, and under the modern homestead laws, 
an artificial estate in land, devised to protect the posses
sion and enjoyment of the owner against the claims of 
his creditors, by withdrawing the property from execu
tion and forced sale, so long as the land is occupied as a 
home. See Homestead exemption laws, below. 
Homestead corporations. Corporations organized for the 
purpose of acquiring lands in large tracts, paying off 
incumbrances thereon, improving and subdividing them 
into homestead lots or parcels, and distributing them 
among the shareholders, and for the accumulation of a 
fund for such purposes. 
Homestead entry. See Entry. 
Homestead exemption laws. Laws passed in most states 
allowing a householder or head of a family to designate 
a house and land as his homestead, and exempting the 
same homestead from execution by creditors for his 
general debts (in, for example, bankruptcy proceedings). 
Property tax reductions or exemptions (for all or part of 
the tax) are also available in some states for homestead
ed property. Statutory requirements to establish a 
homestead may include a formal declaration to be re
corded annually. 
Homestead right. The personal right to the beneficial, 
peaceful and uninterrupted use of the home property 
free from claims of creditors. 
Probate homestead. A homestead set apart by the pro
bate court for the use of a surviving husband or wife and 
the minor children out of the common property, or out 
of the real estate belonging to the deceased. 
Homicidal. Pertaining, relating, or impelling to homi
cide, as a homicidal mania. 
Homicide. The killing of one human being by the act, 
procurement, or omission of another. A person is guilty 
of criminal homicide if he purposely, knowingly, reck
lessly or negligently causes the death of another human 
being. Criminal homicide is murder, manslaughter or 
negligent homicide. Model Penal Code, § 210. 1; 18 
V.S.C.A. § 1111 et seq. See Manslaughter; Murder. 
Homicide is not necessarily a crime. It is a necessary 
ingredient of the crimes of murder and manslaughter, 
but there are other cases in which homicide may be 
committed without criminal intent and without criminal 
consequences, as, where it is done in the lawful execu
tion of a judicial sentence, in self-defense, or as the only 
possible means of arresting an escaping felon. The term 
"homicide" is neutral; while it describes the act, it 
pronounces no judgment on its moral or legal quality. 
734 
People v. Mahon, 77 Ill.App.3d 413, 395 N.E.2d 950, 958. 
See Excusable homicide; Ju stifiable homicide, below. 
Classification 
Homicide is ordinarily classified as "justifiable," "ex
cusable," and "felonious ." For the definitions of these 
terms, and of some other compound terms, see below. 
Cul pable homicide. Described as a crime varying from 
the very lowest culpability, up to the very verge of 
murder. 
Excusable homicide. The killing of a human being, 
either by misadventure or in self-defense. Such homi
cide consists of a perpetrator's acting in a manner which 
the law does not prohibit, such as self-defense or acci
dental homicide. Law v. State, 21 Md.App. 13, 318 A.2d 
859, 869. The name itself imports some fault, error, or 
omission, so trivial, however, that the law excuses it 
from guilt of felony, though in strictness it judges it 
deserving of some little degree of punishment. It is of 
two sorts,-either per infortunium, by misadventure, or 
se defendendo, upon a sudden affray. Homicide per 
infortunium is where a man, doing a lawful act, without 
any intention of hurt, unfortunately kills another; but, 
if death ensue from any unlawful act, the offense is 
manslaughter, and not misadventure. Homicide se de
fendendo is where a man kills another upon a sudden 
affray, merely in his own defense, or in defense of his 
wife, child, parent, or servant, and not from any vindic
tive feeling. See Self-defense; also Justifiable homicide, 
below. 
Felonious homicide. The wrongful killing of a human 
being, of any age or either sex, without justification or 
excuse in law; of which offense there are two degrees, 
manslaughter and murder. 
Homicide by misadventure. The accidental killing of 
another, where the slayer is doing a lawful act, unac
companied by any criminally careless or reckless con
duct. The same as "homicide per infortunium." See 
Manslaughter. 
Homicide by necessity. A species of justifiable homicide, 
because it arises from some unavoidable necessity, with
out any will, intention, or desire, and without any inad
vertence or negligence in the party killing, and there
fore without any shadow of blame. See Self-defense. 
Homicide per infortunium. Homicide by misfortune, or 
accidental homicide; as where a man doing a lawful act 
without any intention of hurt, accidentally kills another; 
a species of excusable homicide. See Negligent homicide. 
Homicide se defendendo. Homicide in self-defense; the 
killing of a person in self-defense upon a sudden affray, 
where the slayer had no other possible (or, at least, 
probable) means of escaping from his assailant. A spe
cies of excusable homicide. See Self defense. 
Justifiable homicide. Such as is committed intentional
ly, but without any evil design, and under such circum
stances of necessity or duty as render the act proper, 
and relieve the party from any shadow of blame; as 
where a sheriff lawfully executes a sentence of death

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735 
upon a malefactor, or where the killing takes place in 
the endeavor to prevent the commission of felony which 
could not be otherwise avoided, or, as a matter of right, 
such as self-defense or other causes provided for by 
statute. See Self-defense; also Excusable homicide, 
above. 
Negligent homicide. Criminal homicide constitutes neg
ligent homicide when it is committed negligently. Mod
el Penal Code, § 210.4. See Negligent homicide; also 
Vehicular homicide, below. 
Reckless homicide. See that title. 
Vehicular homicide. The killing of a human being by 
the operation of an automobile, airplane, motorboat or 
other motor vehicle in a manner which creates an 
unreasonable risk of injury to the person or property of 
another and which constitutes a material deviation from 
the standard of care which a reasonable person would 
observe under the same circumstances. 
Homicidium. Ihom;)saydiy;)m/. Lat. Homicide (q.v.). 
Homicidium ex casu, homicide by accident. 
Homicidium ex justitia, homicide in the administra
tion of justice, or in the execution of the sentence of the 
law. 
Homicidium ex necessitate, homicide from inevitable 
necessity, as for the protection of one's person or proper
ty. 
Homicidium ex voluntate, voluntary or willful homi
cide. 
Hominatio Ihom;)neysh(iy)ow I. The mustering of men; 
the doing of homage. 
Homine capto in withernamium Ihom;)niy kreptow in 
wit5;)rneymiy;)m/. A writ to take him that had taken 
any bond man or woman, and led him or her out of the 
country, so that he or she could not be replevied accord
ing to law. 
Homine eligendo Ihom;)niy el;)jendow I. In old English 
law, a writ directed to a corporation, requiring the 
members to make choice of a man to keep one part of 
the seal appointed for statutes merchant, when a former 
is dead, according to the statute of Acton Burnell. 
Homine replegiando Ihom;)niy r;)pliyjiyrendow I. In old 
English law, a writ which lay to replevy a man out of 
prison, or out of the custody of any private person, in 
the same manner that chattels taken in distress may be 
replevied. 
Homines Ihom;)niyz/. Lat. In feudal law, men; feuda
tory tenants who claimed a privilege of having their 
causes, etc., tried only in their lord's court. 
Homines ligii Ihom�niyz layjiyay I. Liege men; feudal 
tenants or vassals, especially those who held immediate
ly of the sovereign. 1 Bl.Comm. 367. 
Hominum causa jus constitutum. est Ihom;)n;)m koz;) 
j�s konst�tyuwt�m est!. Law is established for the bene
fit of man. 
Homiplagium. Ihom�pleyjiy ;)m/. In old English law, the 
maiming of a man. 
HOMOLOGATE 
Homme lo m/. Fr. Man; a man. The term "man" as 
sometimes used may include a woman or women. 
Hommes de fief. Fr. In feudal law, men of the fief; 
feudal tenants; the peers in the lords' courts. 
Hommes feodaux. Fr. Feudal tenants; the same with 
hommes de fief (q.v.). 
Homo Ihowmow I. Lat. A man; a human being, male 
or female; a vassal, or feudal tenant; a retainer, de
pendent, or servant. 
Homo . chartularius Ihowmow karty;)leriy;)s/. A slave 
manumitted by charter. 
Homo commendatus Ihowmow kom;)ndeyt;)s/. In feu
dal law, one who surrendered himself into the power of 
another for the sake of protection or support. See 
Commen dation. 
Homo ecclesiasticus Ihowmow ;)kliyziyrest�k;)s/. A 
church vassal; one who was bound to serve a church, 
especially to do service of an agricultural character. 
Homo exercitalis Ihowmow ;)gz�rs(h);)teyl�s/. A man of 
the army (exercitus); a soldier. 
Homo feodalis Ihowmow fyuwdeyl;)s/. A vassal or ten
ant; one who held a fee (feodum), or part of a fee. 
Homo fiscalis, or fiscalinus Ihowmow f;)skeyl;)s/"fisk;)
layn;)s/. A servant or vassal belonging to the treasury 
or fiscus. 
Homo francus Ihowmow frre1Jk;)s/. In old English law, 
a freeman. A Frenchman. 
Homo ingenuus Ihowmow injenyuw�s/. A freeman. A 
free and lawful man. A yeoman. 
Homo liber Ihowmow layb;)r I. A free man; a freeman 
lawfully competent to act as juror. An allodial proprie
tor, as distinguished from a vassal or feudatory. This 
was the sense of the term in the laws of the barbarous 
nations of Europe. 
Homo ligius Ihowmow layj(iy)�s /. A liege man; a sub
ject; a king's vassal. The vassal of a subject. 
Homologacion I(h)owmowlowgas(i)yown/. In Spanish 
law, the tacit consent and approval inferred by law from 
the omission of the parties, for the space of ten days, to 
complain of the sentences of arbitrators, appointment of 
syndics, or assignees of insolvents, settlements of succes
sions, etc. Also the approval given by the judge of 
certain acts and agreements for the purpose of render
ing them more binding and executory. 
Homologare Ihom;)bgeriy/. In the civil law, to confirm 
or approve; to consent or assent; to confess. 
Homologate Ih;)mol�geyt/. In civil law, to approve; to 
confirm; as a court homologates a proceeding. See 
Homolo gation. Literally, to use the same words with 
another; to say the like. To assent to what another 
says or writes.

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HOMOLOGATION 
Homologation Ih�mol�gey sh;m/. In the civil law, ap
probation; confirmation by a court of justice; a judg
ment which orders the execution of some act. 
In English law, an estoppel in pais. 
Homo novus Ihowmow nowv �sl. In feudal law, a new 
tenant or vassal; one who was invested with a new fee. 
Also one who, after conviction of a crime, had been 
pardoned, thus "making a new man of him." 
Homonymire Ihom�nimiyiy I. A term applied in the 
civil law to cases where a law was repeated, or laid down 
in the same terms or to the same effect, more than once. 
Cases of iteration and repetition. 
Homo pertinens Ihowmow p;}rt�n�nz/. In feudal law, a 
feudal bondman or vassal; one who belonged to the soil 
(qui glebre adscribitur). 
Homo potest esse habilis et inhabilis diversis tempo
ribus Ihowmow powt�st esiy hreb�bs et inhreb�l�s 
d�v;}rs�s tempor�b�sl. A man may be capable and in
capable at different times. 
Homo regius Ihowmow riyj(iy)�sl. A king's vassal. 
Homo romanus Ihowmow r�meyn�sl. A Roman. An 
appellation given to the old inhabitants of Gaul and 
other Roman provinces, and retained in the laws of the 
barbarous nations. 
Homo trium litterarum Ihowmow tray�m lit�rer�m/. 
A man of the three letters; that is, the three letters, "f," 
"u," "r;" the Latin word fur meaning "thief. " 
Homo vocabulum est naturre; persona juris civilis 
Ihowmow v�kreby�l�m est n�tyuriy, p�rsown� jur�s 
siv�l�srs�vayl� sl. Man (homo) is a term of nature; 
person (persona) of civil law. 
Hondhabend Ihondhreb�nd/. Sax. Having in hand. 
See Handhabend. 
Honeste vivere I(h)�nestiy viv�riy/. Lat. To live hon
orably, creditably, or virtuously. One of the three gen
eral precepts to which Justinian reduced the whole 
doctrine of the law, the others being alterum non lredere 
(not to injure others), and suum cuique tribuere (to 
render to every man his due). 
Honestus I(h)�nest�sl. Lat. Of good character or stand
ing. Coram duo bus vel pluribus viris legalibus et hones
tis, before two or more lawful and good men. 
Honi I(h)owniy/. See Hony. 
Honor, v. To accept a bill of exchange, or to pay a note, 
check, or accepted bill, at maturity and according to its 
tenor. To pay or to accept and pay, or where a credit so 
engages to purchase or discount a draft complying with 
the terms of the draft. U.C.C. § 1-201(21). See also 
Dishonor. 
Honor, n. In old English law, a seigniory of several 
manors held under one baron or lord paramount. Also 
those dignities or privileges, degrees of nobility, knight
hood, and other titles, which flow from the crown as the 
fountain of honor. 
736 
In America, the customary title of courtesy given to 
judges, and occasionally to some other officers; as, "his 
honor," "your honor," "honorab le". 
Act of honor. When a bill has been protested, and a 
third person wishes to take it up, or accept it, for the 
"honor" (credit) of one or more of the parties, the notary 
draws up an instrument, evidencing the transaction, 
which is called by this name. Such acts of honor have 
been eliminated by the U .C.C. 
Honor courts. In old English law, tribunals held within 
honors or seigniories. 
Office of honor. As used in constitutional and statutory 
provisions, this term denotes a public office of considera
ble dignity and importance, to which important public 
trusts or interests are confided, but which is not com
pensated by any salary or fees, being thus contrasted 
with an "office of profit." 
Honorable. A title of courtesy given in England to the 
younger children of earls, and the children of viscounts 
and barons; and, collectively, to the house of commons. 
In America, the word is' used as a title of courtesy for 
various classes of officials and judges, but without any 
clear lines of distinction. 
Honorable discharge. A formal final judgment passed 
by the government upon the entire military record of a 
soldier, and an authoritative declaration by the govern
ment that he has left the service in a status of honor. 
Zearing v. Johnson, 10 CaLApp.2d 654, 52 P.2d 1019, 
1020. Full veterans benefits are only given to those 
with an "honorable discharge" status. 
Honorarium lon�reriy�m/. In the civil law, an honor
ary or free gift; a gratuitous payment, as distinguished 
from hire or compensation for service. 
A voluntary reward for that for which no remunera
tion could be collected by law. Cunningham v. Commis
sioner of Internal Revenue, C.C.A., 67 F.2d 205. A 
voluntary donation, in consideration of services which 
admit of no compensation in money. 
A payment of money or anything of value made to a 
person for services rendered for which fees cannot legal
ly or are not traditionally made. Federal laws place 
restrictions on the payment of honoraria to members of 
Congress. 2 U.S.C.A. § 31-1 . See also Gratuity. 
Honorary. As applied to public offices and other posi
tions of responsibility or trust, this term means either 
that the office or title is bestowed upon the incumbent 
as a mark of honor or compliment, without intending to 
charge him with the active discharge of the duties of the 
place, or else that he is to receive no salary or other 
compensation in money, the honor conferred by the 
incumbency of the office being his only reward. In 
other contents or usages, it means attached to or grow
ing out of some honor or dignity or honorable office, or 
else it imports an obligation or duty growing out of 
honor or trust only, as distinguished from legal account
ability. 
Honorary canons. Those without emolument.

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737 
Honorary feuds. In old English law, titles of nobility, 
descendible to the eldest son, in exclusion of all the rest. 
2 BI.Comm. 56. 
Honorary services. In feudal law, special services to be 
rendered to the king in person, characteristic of the 
tenure by grand serjeanty; such as to carry his banner, 
his sword, or the like or to be his butler, champion, or 
other officer, at his coronation. 
Honorary trust. See Trust. 
Honorary trustees. Trustees to preserve contingent 
remainders, so called because they are bound, in honor 
only, to decide on the most proper and prudential 
course. 
Honoris respectum I(h):mor�s r�spekt�m /. By reason of 
honor or privilege. See Challenge. 
Hontfongenethef Ihontfo1J�n(Jeyf/. In Saxon law, a 
thief taken with hondhabend; i.e., having the thing 
stolen in his hand. 
Hony I(h)owniy/. L. Fr. Shame; evil; disgrace. Hony 
soit qui mal y pense, evil be to him who evil thinks. 
Preferably written honi. 
Hootch. Slang for intoxicating liquor illicitly distilled 
for beverage purposes. State v. Cook, 318 Mo. 1233, 3 
S.W.2d 365, 369. Also called "moonshine." 
Hope, v. A desire or expectation. As used in a will, this 
term is a precatory word, rather than mandatory or 
dispositive, but it is sufficient, in proper cases, to create 
a trust in or in respect to the property spoken of. 
Horre juridicre or judicire Ihoriy j�rid�siy I °juwdishiyiy I. 
Hours during which the judges sat in court to attend to 
judicial business. 
Hora non est multum de substantia negotii, licet in 
appello de ea aliquando fiat mentio Ihor� non est 
m;)1t�m diy s�bstrenshiy� n�gowshiyay, lays�t in �pelow 
diy iy� rel�kwondow fay�t mensh(iy )ow I. The hour is 
not of much consequence as to the substance of business, 
although in appeal it is sometimes mentioned. 
Horca I(h)orka/. In Spanish law, a gallows; the punish
ment of hanging. 
Hordera Ihord�r�/. In old English law, a treasurer. 
Horderium Ihordiriy�m /. In old English law, a hoard; 
a treasurer, repository. 
Horizontal agreements. Agreements among competi
tors at same level of distribution. Gilchrist Machinery 
Co., Inc. v. Komatsu America Corp., D.C.Miss., 601 
F.Supp. 11 92, 11 99. See Horizontal restraints of trade. 
Horizontal merger. A combination of two or more 
companies that compete directly with each other. 
Merger of one company with another company produc
ing same product or similar product and selling it in 
same geographic market. U.S. v. International Tel. & 
Tel. Corp., D.C.Conn., 306 F.Supp. 766, 774. See Merger. 
Compare Vertical merger. 
Horizontal price-iJ.Xi.ng. Agreements between produc
ers, wholesalers, or retailers as to sale or resale prices. 
HOSPITAL 
Price fixing among businesses on the same level the 
effect of which is to eliminate competition based on 
price. Such agreements are prohibited by federal and 
state antitrust laws. See also Price-fixing. 
Horizontal property acts. Statutes dealing with coop
eratives and condominiums. 
Horizontal restraints of trade. A restraint of trade 
involving businesses at the same level of operation. A 
"horizontal restraint" is an agreement between competi
tors to refuse to deal with one or more persons, while a 
"vertical restraint" involves combinations of parties on 
different levels of the distribution system. Both types of 
restraints constitute per se violations of Sherman Anti
trust Act. Sakamoto v. Duty Free Shoppers, Ltd., D.C. 
Guam, 613 F.Supp. 381, 391. See also Horizontal price
fixing. 
Hornbook. A primer; a book explaining the basics, 
fundamentals or rudiments of any science or branch of 
knowledge. The phrase "hornbook law" is a colloquial 
designation of the rudiments or general principles of 
law. 
PopUlar reference to a series of textbooks which re
view various fields of law in summary, narrative form, 
as opposed to casebooks which are designed as primary 
teaching tools and include many reprints of court opin
ions. 
Horner. A narcotic addict who inhales or snuffs heroin 
rather than one who takes it by injection. People v. 
Carner, 117 Cal.App.2d 362, 255 P.2d 835, 836. 
Horngled. Sax. In old English law, a tax within a 
forest, paid for horned beasts. 
Hornswoggle. To triumph over; overcome; beat; bede
vil. 
Horn tenure. In old English law, tenure by cornage; 
that is, by the service of winding a horn when the Scots 
or other enemies entered the land, in order to warn the 
king's subjects. This was a species of grand serjeanty. 
2 Bl.Comm. 74. 
Hors de son fee. Out of his fee. In old common law 
pleading, this was the name of a plea in an action for 
rent or services, by which the defendant alleged that the 
land in question was out of the compass of the plaintiffs 
fee. 
Horse power. A unit of power capable of lifting 33,000 
pounds a foot a minute. 
Hospes Ihospiyz /. Lat. A guest. 
Hospes generalis Ihospiyz jen�reybs/. A great cham
berlain. 
Hospital. An institution for the treatment and care of 
sick, wounded, infirm, or aged persons; generally incor
porated, and then of the class of corporations called 
"eleemosynary" or "charitable." Also the building used 
for such purpose. Hospitals may be either public or 
private, and may be limited in their functions or servic
es; e.g. children's hospital.

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HOSPITAL 
Base hospital. One established at a definite military or 
naval base of operations. 
Field hospital. One set up near the field of operations. 
It is generally equipped to care for emergency cases and 
can be moved readily. 
Hospitallers. The knights of a religious order, so called 
because they built a hospital at Jerusalem, wherein 
pilgrims were received. All their lands and goods in 
England were given to the sovereign by 32 Hen. VIII, c. 
24. 
Hospitator. A host or entertainer. Hospitator commun
is. An innkeeper. Hospitator magnus. The marshal of 
a camp. 
Hospitia Ihospish(iy)�/. Inns. Hospitia communia, com
mon inns. Hospitia curi re, inns of court. Hospitia 
cancellarire, inns of chancery. 
Hospiticide Ih�spit�sayd /. One that kills his guest or 
host. 
Hospitium Ihospish(iy)�m/. An inn; a household. 
Host. L. Fr. An army. A military expedition; war. 
Hostage. An innocent person held captive by one who 
threatens to kill or harm him if his demands are not 
met. A person who is given into the possession of the 
enemy, in time of war, his freedom (or life) to stand as 
security for the performance of some contract or prom
ise made by the belligerent power giving the hostage 
with the other. 
Hostage taking is a federal crime. 18 U.S.C.A. 
§ 1203. 
Term, when used with reference to person and in 
context in which it is used in kidnapping statute, im
plies unlawful taking, restraining or confining of person 
with intent that person, or victim, be held as security for 
performance, or forbearance, of some act by third per
son. State v. Crump, N.M., 82 N.M. 487, 484 P.2d 329, 
334. See Kidnapping. 
Hostelagium Ihost�leyj(iy)�m/. A right to receive lodg
ing and entertainment, anciently reserved by lords in 
the houses of their tenants. 
Hosteler. An innkeeper. See also Hostler. 
Hostes Ih6stiyz/. Lat. Enemies. Hostes humani gener
is, enemies of the human race; i.e., pirates. 
Hostes sunt qui nobis vel quibus nos bellum decerni
mus; creteri proditores vel prredones sunt Ih6stiyz 
s�nt kway n6wb�s vel kwib�s nows bel�m d�s�rn�m�s; 
set�ray prowd�t6riyz vel pr�d6wniyz s�nt/. Enemies are 
those with whom we declare war, or who declare it 
against us; all others are traitors or pirates. 
Hosticide Ih6st�sayd/. One who kills an enemy. 
Hostilaria, hospitalaria Ihos(p�)t�leriy�/. A place or 
room in religious houses used for the reception of guests 
and strangers. 
Hostile. Having the character of an enemy; standing in 
the relation of an enemy. Feeling or displaying enmity 
738 
or antagonism such as a hostile witness. See Hostile or 
adverse witness. 
Within requirement for adverse possession that pos
session be asserted in hostile manner, "hostile" means 
that it is asserted against claim of ownership of all 
others, including record owner, but does not mean that 
adverse possessor display a subjective evil intent or 
emotion against title owner. Steller v. David, Del.Su
per., 257 A.2d 391, 395. See also Adverse possession; 
Notorious possession. 
Hostile embargo. One laid upon the vessels of an 
actual or prospective enemy. 
Hostile fire. In fire insurance law, a fire which breaks 
out in place not anticipated; fire which escapes into 
area not expected. One which becomes uncontrollable 
or breaks out from where it was intended to be and 
becomes hostile element. Reliance Ins. Co. v. Naman, 
118 Tex. 21, 6 S.W.2d 743, 744. 
Hostile or adverse witness. A witness who manifests 
so much hostility or prejudice under examination in 
chief that the party who has called him, or his repre
sentative, is allowed to cross-examine him, i.e., to treat 
him as though he had been called by the opposite party. 
When a party calls a hostile witness, an adverse party, 
or a witness identified with an adverse party, interroga
tion may be by leading questions. Fed.Evid. R. 611. See 
also Adverse witness. 
Hostile possession. See Possession. 
Hostility. State of enmity between individuals or na
tions. An act or series of acts displaying antagonism. 
Hostile act or state. Acts of war. 
Hostler Ih6st1�r/. In Norman and old English law, this 
was the title of the officer in a monastery charged with 
the entertainment of guests. It was also applied (until 
about the time of Queen Elizabeth) to an innkeeper, and 
afterwards, when the keeping of horses at livery became 
a distinct occupation, to the keeper of a livery stable, 
and then (under the modern form "ostler") to the groom 
in charge of the stables of an inn. 
Hot blood. In criminal law, condition of one whose 
passions have been aroused to an uncontrollable degree 
and whose homicide may be reduced, therefore, from 
murder to manslaughter. See also Heat of passion; 
Manslaughter. 
Hot cargo. In labor law, goods produced or handled by 
employer with whom union has dispute. 
Hot cargo agreement. Voluntary agreement between 
union and neutral employer by which latter agrees to 
exert pressure on another employer with whom union 
has a dispute; by, for example, ceasing or refraining 
from handling, using, selling, transporting or otherwise 
dealing in any of the products of any other employer the 
union has labeled as unfair or "hot". N. L. R. B. v. 
Amalgamated Lithographers of America, C.C.A.lnd., 309 
F.2d 31. See Landrum-Griffin Act. 
Hotchpot. The blending and mixing property belonging 
to different persons, in order to divide it equally. An-

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ciently applied to the mU[lng and blending of lands 
given to one daughter in frank marriage, with those 
descending to her and her sisters in fee-simple, for the 
purpose of dividing the whole equally among them; 
without which the daughter who held in frank marriage 
could have no share in the lands in fee-simple. 2 
Bl.Comm. 190. 
Hotchpot, or the putting in hotchpot, is applied in 
modern law to the throwing the amount of an advance
ment made to a particular child, in real or personal 
estate, into the common stock, for the purpose of a more 
equal division, or of equalizing the shares of all the 
children. This answers to or resembles the collatio 
bonorum, or collation of the civil law. 
Hotel. A building held out to the public as a place 
where all transient persons who come will be received 
and entertained as guests for compensation and it opens 
its facilities to the public as a whole rather than limited 
accessibility to a well-defined private group. Ambassa
dor Athletic Club v. Utah State Tax Commission, 27 
Utah 2d 377, 496 P.2d 883. 
Hotel divorce. Form of collusive divorce in which by 
agreement of both spouses, one spouse stages a fake 
adultery scene. 
Hotelkeeper's lien. A possessory or statutory lien al
lowing the hotelkeeper or innkeeper to take the person
al property of a guest, brought into the hotel, as security 
for nonpayment of the guest's bill. 
Hot issue. See Issue (Securities). 
Hot pursuit. See Fresh pursuit. 
Hot-water ordeal. In old English law, this was a test, in 
cases of accusation, by hot water; the party accused and 
suspected being appointed by the judge to put his arms 
up to the elbows in seething hot water, which, after 
sundry prayers and invocations, he did, and was, by the 
effect which followed, judged guilty or innocent. 
Hour. The twenty-fourth part of a natural day; sixty 
minutes of time. 
Office hours. See Office. 
Hours of labor. Time period in which employees work 
and which is governed in part by state and federal (e.g. 
Adamson Act; Fair Labor Standards Act) laws enacted 
under police power insofar as such legislation deals with 
the safety and welfare of laborers and the public. See 
Child labor laws; Fair Labor Standards Act; Wage and 
hour laws. 
House. Structure that serves as living quarters for one 
or more persons or families. See also Curtilage; Domi
cile; Home; Residence. 
A legislative assembly, or (where the bicameral sys
tem obtains) one of the two branches of the legislature; 
as the "house of lords" or "house of representatives". 
Also a quorum of a legislative body. 
The name "house" is also given to some collections of 
persons other than legislative bodies, to some public 
institutions, and (colloquially) to commercial firms or 
joint-stock companies (e.g. publishing or securities busi
nesses). 
HOUSE 
Ancient house. In old English law, one which has stood 
long enough to acquire an easement of support against 
the adjoining land or building. 
Bawdy house. A brothel; a house maintained for pur
poses of prostitution. 
Disorderly house. See that title. 
Duplex house. A double house. 
Dwelling house. See Dwelling. 
House-bote. In old English law, a species of estovers, 
belonging to a tenant for life or years, consisting in the 
right to take from the woods of the lessor or owner such 
timber as may be necessary for making repairs upon the 
house. 
House-burnin g. See Arson. 
House-duty. In England, a tax on inhabited houses 
imposed by 14 & 15 Vict., c. 36, in lieu of window-duty, 
which was abolished. 
House of Commons. One of the constituent houses of 
the British parliament, composed of representatives of 
the counties, cities, and boroughs. The lower house, so 
called because the commons of the realm, that is, the 
knights, citizens, and burgesses returned to parliament, 
representing the whole body of the commons, sit there. 
Its jurisdiction is limited to bills of attainder and pains 
and penalties, and breach of privileges of the House and 
its members. See also House of Lords, below. 
House of correction. A reformatory. A place for the 
confinement of juvenile offenders, or those who have 
committed crimes of lesser magnitude. 
House of Delegates. The official title of the lower 
branch of the legislative assembly of several of the 
states, e.g., Maryland and Virginia. 
House of ill fame. A bawdy house; house of prostitu
tion; a brothel; a dwelling allowed by its chief occupant 
to be used as a resort of persons desiring unlawful 
sexual intercourse. People v. Lee, 307 Mich. 743, 12 
N.W.2d 418, 421. See Bawdy-house. 
House of Lords. The upper chamber of the British 
parliament. It comprises the lords spiritual and the 
lords temporal, and a certain number of Scottish peers. 
The House of Lords is also the court of final appeal in 
most civil cases and has jurisdiction over impeachment. 
See Privy council; also House of Commons, above. 
House of refuge. A prison for juvenile delinquents. A 
house of correction or reformatory. 
House of Representatives. See House of Representatives. 
House of worship. A building or place set apart for and 
devoted to the holding of religious services or exercises 
or public worship; a church or chapel or place similarly 
used. 
Mansion house. See Mansion-house. 
Public house. An inn or tavern; a house for the enter
tainment of the public, or for the entertainment of all 
who come lawfully and pay regularly. A place of public

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HOUSE 
resort, particularly for purposes of drinking or gaming. 
In a more general sense, any house made public by the 
occupation carried on in it and the implied invitation to 
the public to enter, such as inns, taverns, drinking 
saloons, gambling houses, and perhaps also shops and 
stores. This term is now generally obsolete. 
Tippling house. A place where intoxicating liquors are 
sold to be drunk on the premises. 
Houseage. A fee paid for housing goods by a carrier, or 
at a wharf, etc. 
Housebreaking. Burglary. Breaking and entering a 
dwelling-house with intent to commit any felony there
in. See Burglary. 
Under some statutes housebreaking may consist in 
"breaking out" of a house after access had been gained 
without breaking. 
House counsel. Lawyer who acts as attorney for busi
ness though carried as an employee of that business and 
not as an independent lawyer. Generally, such lawyer 
advises business on day to day matters. Larger busi
nesses have legal departments with attorneys assigned 
to specialized areas of law affecting their particular 
business; . e.g. labor law, taxes, personal injury litigation, 
corporate law, etc. 
Household, adj. Belonging to the house and family; 
domestic. 
Household, n. A family living together. Schurler v. 
Industrial Commission, 86 Utah 284, 43 P.2d 696, 699. 
Those who dwell under the same roof and compose a 
family. 
Term "household" is generally synonymous with 
"family" for insurance purposes, and includes those who 
dwell together as a family under the same roof. Van 
Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 
387, 227 N.W.2d 807, 810. Generally, the term "house
hold" as used in automobile policies is synonymous with 
"home" and "family." Bartholet v. Berkness, 291 Minn. 
123, 189 N.W.2d 410, 412. 
For Family, see that title. 
Householder. The occupier of a house. More correctly, 
one who keeps house with his or her family; the head or 
master of a family. Berghean v. Berghean, 113 Ind.App. 
412, 48 N.E.2d 1001, 1003. One who has a household; 
the head of a household. See also Head of household. 
House law. A peculiar type of regulatory code, now 
largely obsolete, promulgated by the head of a royal or 
noble family, or of a prominent private family, govern
ing intra-family relationships and acts with respect to 
policies of marriage, disposition of property, inheritance 
and the like. Usually these codes had no legal authority 
but were enforced within the family by sufficient per
sonal and economic sanctions. 
House of delegates. When used in connection with the 
American Bar Association, the House of Delegates is the 
body in which is vested the control and administration 
of the ABA. See ABA Constitution, Art. VI. 
House of prostitution. See Bawdy-house. 
740 
House of Representatives. The House of Representa
tives of Congress comprises 435 representatives. The 
number representing each State is determined by popu
lation but every State is entitled to at least one repre
sentative. Members are elected by the people by district 
for 2-year terms, all terms running for the same period. 
Representatives must be at least 25 years of age, citizens 
of United States for at least seven years, and live in the 
state they represent. Art. I, § 2 of U.S .Const. 
Housing code. See Building code. 
Housing courts. Such courts, as existing in a number of 
cities, deal primarily with landlord and tenant matters, 
including disputes concerning maintenance of premises, 
terms of lease, building and fire codes, and the like. 
HOW. See Home Owners Warranty. 
H.R. House of Representatives; House Report. 
H.R. 10 Plans. See Keogh Plan. 
H.T. An abbreviation for hoc titulo, this title, or under 
this title; used in references to books. 
Huckster Ih�kst;)r/. A petty hawker or peddler. 
Hucusque Ih�k�skwiy I. In old pleading, hitherto. 
HUD. Department of Housing and Urban Development. 
Hude-geld Ihay(n)dgeld/. In old English law, an acquit-
tance for an assault upon a trespassing servant. Also, 
the price on one's skin, or the money paid by a servant 
to save himself from a whipping. 
Hue and cry. In old English law, a loud outcry with 
which felons (such as robbers, burglars, and murderers) 
were anciently pursued, and which all who heard it 
were bound to take up, and join in the pursuit, until the 
malefactor was taken. 4 Bl.Comm. 293. A written 
proclamation issued on the escape of a felon from prison, 
requiring all officers and police to assist in retaking 
him. 
Hui Ihuwiy/. Under the law of Hawaii, an association of 
persons in the ownership of land, members of which 
ordinarily hold the property as tenants in common. De 
Fries v. Scott, C.C.A .Hawaii, 268 F.2d 952. 
Huissiers Iwisyey/. In French law, marshals; ushers; 
process-servers; sheriffs officers. Ministerial officers 
attached to the courts, to effect legal service of process 
required by law in actions, to issue executions, etc., and 
to maintain order during the sitting of the courts. 
Hulks. A place of punishment for convicts in England, 
abandoned with the reform in the punishment of con
victs which began in England about 1840. 
Humanitarian doctrine. Doctrine evolved from Mis
souri (Wonnack v. Missouri Pacific R. Co., 337 Mo. 1160, 
88 S.W.2d 368) in which a plaintiff is relieved of respon
sibility for his negligence if he can show that the defen
dant (generally one operating a train or motor vehicle 
while plaintiff is pedestrian) had last opportunity to 
avoid the accident. It is only when plaintiff comes into 
a position of imminent, impending and immediate dan
ger in which injury to plaintiff is reasonably certain if

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the existing circumstances remain unchanged that the 
"humanitarian doctrine" seizes upon the situation and 
imposes upon defendant a duty to thereafter exercise 
proper care to avoid the threatened injury. Finch v. 
Kegevic, Mo.App., 486 S.W.2d 515, 518, 519, 521. Only a 
very few states follow this doctrine. 
See also Im mediate danger; Imm inent peril; Last clear 
chance doctrine. 
Hundred. Under the Saxon organization of England, 
each county or shire comprised of an indefinite number 
of hundr eds, each hundred containing ten tithings, or 
groups of ten families of freeholders or frankpledges. 
The hundred was governed by a high constable, and had 
its own court; but its most remarkable feature was the 
corporate responsibility of the whole for the crimes or 
defaults of the individual members. The introduction of 
this plan of organization into England is commonly 
ascribed to Alfred, but the idea, as well of the collective 
liability as of the division, was probably known to the 
ancient German peoples, as we find the same thing 
established in the Frankish kingdom under Clothaire, 
and in Denmark. 1 BI.Comm. 11 5; 4 BI.Comm. 411. 
Hundredarius Ih;)ndr�deriy�s/. In old English law, a 
hundredary or hundredor. A name given to the chief 
officer of a hundred, as well as to the freeholders who 
composed it. 
Hundredary Ih;}ndr�deriy I. The chief or presiding offi
cer of a hundred. 
Hundred Court. In English hiw, a larger court-baron, 
being held for all the inhabitants of a particular hun
dred, instead of a manor. The free suitors were the 
judges, and the steward the registrar, as in the case of a 
court-baron. It was not a court of record, and resembled 
a court-baron in all respects except that in point of 
territory it was of greater jurisdiction. These courts no 
longer exist. 3 BI.Comm. 34, 35. 
Hundredes earldor, or hundredes man Ih;}ndr�dz ;}rl
d�r/h;}ndr�dzm�n/. The presiding officer in the hun
dred court. 
Hundred-fecta Ih;}ndr�d fekb /. The performance of 
suit and service at the hundred court. 
Hundred gemote Ih;}ndr�d g�mowt /. Among the Sax
ons, a meeting or court of the freeholders of a hundred, 
which assembled, originally, twelve times a year, and 
possessed civil and criminal jurisdiction and ecclesiasti
cal powers. 
Hundred lagh Ih;}ndr�d 10/. The law of the hundred, or 
hundred court; liability to attend the hundred court. 
Hundredors Ih;}ndr�d�rzl. In English law, the inhab
itants or freeholders of a hundred, anciently the suitors 
or judges of the hundred court. Persons impaneled or 
fit to be impaneled upon juries, dwelling within the 
hundred where the cause of action arose. It was former
ly necessary to have some of these upon every panel of 
jurors. 3 BI.Comm. 359, 360. The term "hundredor" 
was also used to signify the officer who had the jurisdic-
HUSBAND-WIFE PRIVILEGE 
tion of a hundred, and held the hundred court, and 
sometimes the bailiff of a hundred. 
Hundred penny. In old English law, a tax collected 
from the hundred, by the sheriff or lord of the hundred. 
Hundred rolls. In England, rolls embodying the result 
of investigations made by the commissioners in 1274 as 
to usurpations of the royal rights. 
Hundred secta Ih;}ndr�d sekt�/. The performance of 
suit and service at the hundred court. 
Hundred setena /h;}ndr�d s�tiyn� /. In Saxon law, the 
dwellers or inhabitants of a hundred. 
Hundredweight. A denomination of weight containing, 
according to the English system, 112 pounds; but in this 
country, generally, it consists of 100 pounds avoirdupois. 
Hung jury. A jury so irreconcilably divided in opinion 
that they cannot agree upon any verdict by the required 
unanimity. See Dynamite instruction. 
Huntley hearing. In New York, a separate proceeding 
in a criminal case wherein the admissibility of an ac
cused's extrajudicial statements is determined. People 
v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 
179. 
Hurdereferst Ih;}rd�rf;)rst/. A domestic; one of a fami
ly. 
Hurt. In such phrases as "to the hurt or annoyance of 
another," or "hurt, molested, or restrained in his person 
or estate," this word is not restricted to physical inju
ries, but includes also mental pain, as well as discomfort 
.or annoyance. See also Damage; Injury. 
Hurto I(h)urtow/. In Spanish law, theft. 
Husband. A married man; one who has a lawful wife 
living. The correlative of "wife." 
Etymologically, the word signified the "house bond;" 
the man who, according to Saxon ideas and institutions, 
held around him the family, for whom he was in law 
responsible. 
Husbandman. A farmer, a cultivator or tiller of the 
ground. The word "farmer" is colloquially used as 
synonymous with "husbandman", but originally meant 
a tenant who cultivates leased ground. 
Husband of a ship. See Ship (Ship's husband). 
Husbandria Ih;)zb�ndriy�/. In old English law, hus
bandry. 
Husbandry. Agriculture; farming; cultivation of the 
soil for food. Farming, in the sense of operating land to 
raise crops and livestock. State ex reI. Boynton v. 
Wheat Farming Co., 137 Kan. 697, 22 P.2d 1093. Care 
of household. Careful management of resources. 
Husband-wife privilege. Term refers to privilege ex
tended to confidential marital communications. While 
state statutes vary, in general such provide that a 
spouse has a privilege to refuse to disclose, and to 
prevent the other from disclosing, a confidential commu
nication made while spouses were married. There are

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HUSBAND-WIFE PRIVILEGE 
certain exceptions to this privilege, the major one being 
where one spouse is the victim of a crime by the other. 
Husband-wife tort actions. The common law rule, 
carried forward by statute in many states, prohibits tort 
actions between spouses. The current trend however is 
to abolish this interspousal immunity doctrine, thus 
permitting such suits between spouses. Some states 
have abolished the doctrine only insofar as automobile 
tort actions. See also Consortium. 
Husbrec Ihuwsbreyk/. In Saxon law, the crime of 
housebreaking or burglary. 
Huscarle Ihuwskarll. In old English law, a house serv
ant or domestic; a man of the household. A king's 
vassal, thane, or baron; an earl's man or vassal. 
Husfastne Ihuwsfres(t):m/. He who holds house and 
land. 
Husgablum Ihuwsgrebbm /. In old English law, house 
rent; or a tax or tribute laid upon a house. 
Hush-money. A colloquial expression to designate a 
bribe to hinder information; pay to secure silence. 
Hustings. Council; court; tribunal. Apparently so 
called from being held within a building, at a time when 
other courts were held in the open air. It was a local 
court. The county court in the city of London bore this 
name. There were hustings at York, Winchester, Lin
coln, and in other places similar to the London hustings. 
Also the raised place from which candidates for seats in 
parliament address the constituency, on the occasion of 
their nomination. Courts of Husting in England no 
longer exist. 
Hutesium et clamor Ih;;>tiyz(h)(i)y;;>m et klci!m;;>r/. Hue 
and cry. 
H.V. An abbreviation for hoc verbo or hac voce, this 
word, under this word; used references to diction
aries and other works alphabetically arranged. 
Hybrid class action. Term refers to type of actions 
where the right to be enforced is several but the object 
of the action is the adjudication of claims which do or 
may affect specific property in the action. Eastham v. 
Public Emp. Retirement Ass'n Bd., 89 N.M. 399, 553 
P.2d 679, 682. See Class or representative action. 
Hybrid securities. Securities that have some of the 
attributes of both debt securities and equity securities. 
Type of security which, in the form of a debenture, 
contains elements of indebtedness and elements of equi
ty stock. J.S. Biritz Const. Co. v. C.I.R., C.A.Mo., 387 
F.2d 451, 455. 
Hypnosis. The act of inducing artificially a state of 
sleep or trance in a subject by means of verbal sugges
tion by the hypnotist or by the subject's concentration 
upon some object. It is generally characterized by ex
treme responsiveness to suggestions from the hypnotist. 
A state of heightened concentration with diminished 
awareness of peripheral events. State v. Hurd, 86 N.J. 
525, 432 A.2d 86. A majority of states have held that 
hypnotically induced testimony is admissible in a crimi-
742 
nal trial, e.g. United States v. Awkard, C.A.Cal., 597 
F.2d 667 cert. den. 444 U.S. 885, 100 S.Ct. 179, 62 
L.Ed.2d 11 6; Clark v. State, Fla.App., 379 So.2d 372. 
Some courts hold, however, that hypnotically refreshed 
testimony must satisfy the standard of acceptability for 
scientific evidence before it is admissible in a criminal 
trial. E.g. State v. Hurd, 86 N.J. 525, 432 A.2d 86, 91. 
Hypobolum I h;;>pob;;>l;;>m I . In the civil law, the name of 
the bequest or legacy given by the husband to his wife, 
at his death, above her dowry. 
Hypochondria; hypomania Ihayp;;>kondr�y;;>, hip;;> ° Iha
yp;;>meyn(i)y;;>, hip;;>o I. See Insanity. 
Hypotheca Ihayp;;>Oiyk;;>, hip;;> ° I. "Hypotheca" was a 
term of the Roman law, and denoted a pledge or mort
gage. As distinguished from the term "pignus," in the 
same law, it denoted a mortgage, whether of lands or of 
goods, in which the subject in pledge remained in the 
possession of the mortgagor or debtor; whereas in the 
pignus the mortgagee or creditor was in the possession. 
Such an hypotheca might be either express or implied; 
express, where the parties upon the occasion of a loan 
entered into express agreement to that effect; or im
plied, as, e.g., in the case of the stock and utensils of a 
farmer, which were subject to the landlord's right as a 
creditor for rent; whence the Scotch law of hypothec. 
The word has suggested the term "hypotheca te," as 
used in the mercantile and maritime law of England. 
Thus, under the factor's act, goods are frequently said to 
be "hypothecat ed;" and a captain is said to have a right 
to hypothecate his vessel for necessary repairs. 
Hypothecaria actio Ih;;>poO;;>keriy;;> reksh(iy)ow/. Lat. 
In the civil law, an hypothecary action; an action for 
the enforcement of an hypo theca, or right of mortgage; 
or to obtain the surrender of the thing mortgaged. 
Hypothecarii creditores Ih;;>poO;;>keriyay kred;;>toriyz/. 
Lat. In the civil law, hypothecary creditors; those who 
loaned money on the security of an hypotheca (.'1. v.). 
Hypothecary action Ih;;>poO;;>kehriy reksh;;>n/. The name 
of an action allowed under the civil law for the enforce
ment of the claims of a creditor by the contract of 
hypotheca (q.v.). Lovell v. Cragin, 136 U.S. 130, 10 S.Ct. 
1024, 34 L.Ed. 372. 
Hypothecate Ih;;>poO;;>keyt/. To pledge property as se
curity or collateral for a debt. Generally, there is no 
physical transfer of the pledged property to the lender, 
nor is the lender given title to the property; though he 
has the right to sell the pledged property upon default. 
Moore v. Wardlaw, C.C.A.Tex., 522 S.W.2d 552, 554. See 
also Pledge; Rehypothecation. 
Hypothecation bond Ih;;>poO;;>keysh;;>n bond I . A bond 
given in the contract of bottomry or respondentia. 
Hypotheque liypowt ek/. In French law, hypothecation; 
a mortgage on real property; the right vested in a 
creditor by the assignment to him of real estate as 
security for the payment of his debt, whether or not it 
be accompanied by possession.

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It corresponds to the mortgage of real property in 
English law, and is a real charge, following the property 
into whosesoever hands it comes. It may be legale, as in 
the case of the charge which the state has over the lands 
of its accountants, or which a married woman has over 
those of her husband; judicia ire, when it is the result of 
a judgment of a court of justice; and conventionelle, 
when it is the result of an agreement of the parties. 
Hypothesis I h;}p60;}s;}s I . A supposition, assumption, or 
theory; a theory set up by the prosecution, on a crimi
nal trial, or by the defense, as an explanation of the 
facts in evidence, and a ground for inferring guilt or 
innocence, as the case may be, or as indicating a proba
ble or possible motive for the crime. 
Hypothetical question. A hypothetical question is a 
form of question framed in such a manner as to call for 
an opinion from an expert based on a series of assump
tions claimed to have been established as fact by the 
evidence in a case. It is a device which is used at trial 
to enable an expert witness to express an opinion con
cerning facts about which he did not have personal 
knowledge. It should be so framed as to recite all the 
facts in evidence which are relevant to the formation of 
an opinion and then, assuming the facts recited to be 
true, the witness should be asked whether he is able to 
HYSTEROPOTMOI 
form an opinion therefrom and if so to state his opinion. 
McMurrey v. State, 145 Tex.Cr.R. 439, 168 S.W.2d 858, 
860. Federal Rules of Evidence 705 and 703 eliminate 
the requirement that a hypothetical question must be 
used in Federal Court, but either the court or the 
questioner may decide that one should be used. 
Hypothetical yearly tenancy. The basis, in England, 
of rating lands and hereditaments to the poor-rate, and 
to other rates and taxes that are expressed to be leviable 
or assessable in like manner as the poor-rate. 
Hysteria. Disorder of the psychoneurotic system charac
terized by disturbances of the psychic, sensory, motor, 
and visceral functions. Extreme emotionalism, com
monly characterized by attention-seeking, impulsive 
demonstrations. 
Hysteropotmoi. Those who, having been thought dead, 
had, after a long absence in foreign countries, returned 
safely home; or those who, having been thought dead in 
battle, had afterwards unexpectedly escaped from their 
enemies and returned home. These, among the Ro
mans, were not permitted to enter their own houses at 
the door, but were received at a passage opened in the 
roof.

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I 
lb. See Ibidem. 
Ibidem lib�d�m/�bayd�m/. Lat. In the same place; in 
the same book; on the same page, etc. Abbreviated to 
"ibid. "or "ib. " 
Ibi semper debet fieri triatio ubi juratores meliorem 
possunt habere notitiam libay semp�r deb�t fay�ray 
triyeysh(iy)ow yuwbay jur�toriyz pos�nt h:llbiriy 
nowtish(iy)�m/. A trial should always be had where the 
jurors can be the best informed. 
I.C.C. Interstate Commerce Commission. 
I-ctus. An abbreviation for ,)uriseonsultus," one 
learned in the law; a jurisconsult. See Jurisconsultus. 
Ictus orbis likt�s orb �s/. A maim, a bruise, or swelling; 
any hurt without cutting the skin. When the skin is 
cut, the injury is called a "wound." 
Id. See Idem. 
I.D. Identification. 
Id certum est quod certum reddi potest lid s;}rt�m est 
kwod s;}rt�m reday powt�st/. That is certain which can 
be made certain. 2 Bl.Comm. 143; 1 Bl.Comm. 78. 
Id certum est quod certum reddi potest, sed id magis 
certum est quod de semetipso est certum lid s;}rt�m 
est kwod s;}rt�m reday powt�st, sed id meyj�s s;}rt�m est 
kwod diy siym�tipsow est s;}rt�m/. That is certain 
which can be made certain, but that is more certain 
which is certain of itself. 
Idem I ayd�m/. Lat. The same; used to indicate a 
reference previously made. According to Lord Coke, 
"idem " has two significations, se., idem syllabis seu 
verbis (the same in syllabus or words), and idem re et 
sensu (the same in substance and in sense). 
Idem agens et patiens esse non potest I ayd�m eyj�nz 
et peysh(iy)�nz esiy non powt�st/. The same person 
cannot be both agent and patient; i.e., the doer and 
person to whom the thing is done. 
Idem est facere, et non prohibere cum possis; et qui 
non prohibit, cum prohibere possit, in culpa est (aut 
jubet) layd�m est feys�riy et non prowh�biriy, k�m 
pos�s, et kway non prow(h)�b�t k�m prowh�biriy pos�t in 
k;}lp� est/. To commit, and not to prohibit when in your 
power, is the same thing; and he who does not prohibit 
when he can prohibit is in fault, or does the same as 
ordering it to be done. 
Idem est nihil dicere, et insufficienter dicere I ayd�m 
est nay(h)�l dis�riy et ins�fis(h)iyent�r dis�riy I. It is the 
same thing to say nothing, and to say a thing insuffi
ciently. To say a thing in an insufficient manner is the 
same as not to say it at all. Applied to the plea of a 
prisoner. 
Idem est non esse, et non apparere I ayd�m est non 
esiy et non rep�ririy I. It is the same thing not to be as 
not to appear. Not to appear is the same thing as not to 
be. 
Idem est non probari et non esse; non deficit jus, sed 
probatio layd�m est non pr�beray et non esiy, non 
der�s�t j;}s sed pr�beysh(iy)ow I. What is not proved and 
what does not exist are the same; it is not a defect of 
the law, but of proof. 
Idem est scire aut scire debere aut potuisse I ayd�m 
est sayriy ot sayriy d�biriy ot potuwisiy I. To be bound 
to know or to be able to know is the same as to know. 
Idem per idem I ayd�m p�r ayd�m/. The same for the 
same. An illustration of a kind that really adds no 
additional element to the consideration of the question. 
Idem semper antecedenti proximo refertur I ayd�m 
semp�r rent�s�dentay proks�mow r�f;}rt�r/. "The same" 
is always referred to its next antecedent. 
Idem sonans I ayd�m sownrenz/. Sounding the same or 
alike; having the same sound. A term applied to names 
which are substantially the same, though slightly varied 
in the spelling, as "Lawrence" and "Lawrance," and the 
like. State v. Culbertson, 6 N.C.App. 327, 170 S.E.2d 
125, 127. Under the rule of "idem sonans," variance 
between allegation and proof of a given name is not 
material if the names sound the same or the attentive 
ear finds difficulty in distinguishing them when pro
nounced. Martin v. State, Tex.Cr.App., 541 S.W.2d 605, 
606. 
Two names are said to be "idem sonantes" if the 
attentive ear finds difficulty in distinguishing them 
when pronounced, or if common and long-continued 
usage has by corruption or abbreviation made them 
identical in pronunciation. The rule of "idem sonans" is 
that absolute accuracy in spelling names is not required 
in a legal document or proceedings either civil or crimi
nal; that if the name, as spelled in the document, 
though different from the correct spelling thereof, con
veys to the ear, when pronounced according to the 
commonly accepted methods, a sound practically identi
cal with the correct name as commonly pronounced, the 
name thus given is a sufficient identification of the 
individual referred to, and no advantage can be taken of 
the clerical error. The doctrine of "idem sonans" has 
744

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745 
been much enlarged by decisions, to conform to the 
growing rule that a variance, to be material, must be 
such as has misled the opposite party to his prejudice. 
Identical. Exactly the same for all practical purposes. 
Identification. Proof of identity. The proving that a 
person, subject, or article before the court is the very 
same that he or it is alleged, charged, or reputed to be; 
as where a witness recognizes the prisoner as the same 
person whom he saw committing the crime; or where 
handwriting, stolen goods, counterfeit coin, etc., are rec
ognized as the same which once passed under the obser
vation of the person identifying them. 
The requirement of identification as a condition prece
dent to admissability is satisfied by evidence sufficient 
to support a finding that the matter in question is what 
its proponent claims. Fed.Evid.R. 901. 
See also Authentication; Blood test evidence; DNA iden
tification; Eyewitness identification; Lineup; Mug book; 
Voice identification; Voiceprint. 
Identification of goods. The buyer obtains a special 
property and an insurable interest in goods by identifi
cation of existing goods as goods to which the contract 
refers even though the goods so identified are non-con
forming and he has an option to return or reject them. 
Such identification can be made at any time and in any 
manner explicitly agreed to by the parties. U.C.C. 
§ 2- 501. 
Identitas vera colligitur ex multitudine signorum 
I �dent�tres vir� k�lij�t�r eks m;}lt�tyuwd�niy s�g
n6r�m/. True identity is collected from a multitude of 
signs. 
Identitate nominis I �dent�teytiy n6m�n�sl. In English 
law, an ancient writ (now obsolete) which lay for one 
taken and arrested in any personal action, and commit
ted to prison, by mistake for another man of the same 
name. 
Identity. Evidence. Sameness; the fact that a subject, 
person, or thing before a court is the same as it is 
represented, claimed, or charged to be. See Authentica
tion; Identification. 
Patent Law. Such sameness between two designs, in
ventions, combinations, etc., as will constitute the one 
an infringement of the patent granted for the other. To 
constitute "identity of invention," and therefore in
fringement, not only must the result obtained be the 
same, but, in case the means used for its attainment is a 
combination of known elements, the elements combined 
in both cases must be the same, and combined in the 
same way, so that each element shall perform the same 
function; provided that the differences alleged are not 
merely colorable according to the rule forbidding the use 
of known equivalents. Electric Railroad Signal Co. v. 
Hall Railroad Signal Co., 114 U.S. 87, 5 S.Ct. 1069, 29 
L.Ed. 96. "Identity of design" means sameness of ap
pearance, or, in other words, sameness of effect upon the 
eye,-not the eye of an expert, but of an ordinary 
intelligent observer. Smith v. Whitman Saddle Co., 148 
U.S. 674, 13 S.Ct. 768, 37 L.Ed. 606. 
IDONEUS 
Identity of interests. In civil procedure, an amendment 
(addition) of a party will be allowed if the party sought 
to be joined is so closely related in business operations 
or other activities that the institution of an action 
against one serves as notice of litigation to the other, 
and hence the amendment will relate back. Grooms v. 
Greyhound Corp., C.A.O hio, 287 F.2d 95; Fed.R. Civil P. 
15(c). See also Ident ity of parties; Privity. 
Identity of parties. Refers to condition of persons in 
relation to each other so that a former judgment against 
one bars action against others because of res adjudicata; 
hence, same parties and those in privity are so barred. 
See Res (Res judicata). 
Ideo I aydiyow I. Lat. Therefore. 
Ideo consideratum est I aydiyow k�nsid�reyt�m est/. 
Lat. Therefore it is considered. These were the words 
used at the beginning of the entry of judgment in an 
action, when the forms were in Latin. They are also 
used as a name for that portion of the record. 
Ides I aydz/. A division of time among the Romans. In 
March, May, July, and October, the Ides were on the 
15th of the month; in the remaining months, on the 
13th. This method of reckoning is still retained in the 
chancery of Rome, and in the calendar of the breviary. 
Id est lid est/. Lat. That is. Commonly abbreviated 
"i.e. " 
Idiochira /idiyowkayr�/. Grreco-Lat. In the civil law, 
an instrument privately executed, as distinguished from 
such as were executed before a public officer. 
Idiocy, idiopathic insanity lid(i)y�siy, idiyowpre8�k 
insren�tiy/. See Insanity. 
Idiota lidiy6wt�/. In the civil law, an unlearned, illit
erate, or simple person. A private man; one not in 
office. 
Idiota inquirendo, writ de lrit diy idiy6wt� iIJkw�ren
dow I. This is the name of an old writ which directs the 
sheriff to inquire whether a man be an idiot or not. The 
inquisition is to be made by a jury of twelve men. And, 
if the man were found an idiot, the profits of his lands 
and the custody of his person might be granted by the 
king to any subject who had interest enough to obtain 
them. 1 Bl.Comm. 303. 
Idoneitas lid�niy�tresl. In old English law, ability or 
fitness (of a person). 
Idoneum se facere; idoneare se lid6wniy�m siy fey
s�riy/id�n(iy)eriy siy/. To purge one's self by oath of a 
crime of which one is accused. 
Idoneus lid6wniy�s/. Lat. In the civil and common 
law, sufficient; competent; fit or proper; responsible; 
unimpeachable. Idoneus homo, a responsible or solvent 
person; a good and lawful man. Sufficient; adequate; 
Satisfactory. Idonea cautio, sufficient security. 
Id perfectum est quod ex omnibus suis partibus cons
tat lid p�rfekt�m est kw6d eks 6mn�b�s s(y)uw�s 
part�b�s k6nst�t/. That is perfect which consists of all 
its parts.

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ID POSSUMUS, ETC. 
Id possumus quod de jure possumus lid pos�m�s kwod 
diy juriy pos�m�s/. We may do only that which by law 
we are allowed to do. 
Id quod est magis remotum, non trahit ad se quod est 
magis junctum, sed e contrario in omni casu lid 
kwod est meyj�s r�mowt�m, non trey(h)�t red siy kwod 
est mey j�s j;}1Jkt�m, sed iy k�ntreriyow in omnay 
keys(y)uw/. That which is more remote does not draw 
to itself that which is nearer, but the contrary in every 
case. 
Id quod nostrum est sine facto nostro ad alium trans
ferri non potest lid kwod nostr�m est sayniy frektow 
nostrow red eyl(i)y�m trrensf;}ray non powt�st/. That 
which is ours cannot be transferred to another without 
our act. 
Id solum nostrum quod debitis deductis nostrum est 
lid sowl�m nostr�m kwod deb�t�s d�d;}kt�s nostr�m est/. 
That only is ours which remains to us after deduction of 
debts. 
I.e. An abbreviation for "id est," that is; that is to say. 
If. In deeds and wills, this word, as a rule, implies a 
condition precedent, unless it be controlled by other 
words. Hughes v. John Hancock Mut. Life Ins. Co., 163 
Misc. 31, 297 N.Y.S. 11 6, 122. 
I.F.B. Invitation for Bids. 
Ignis judicium lign�s j�dish(iy)�m/. Lat. The old judi
cial trial by fire. 
Ignitegium lign�tiyj(iy)�m/. In old English law, the 
curfew, or evening bell. See Curfew. 
Ignominy lign�miniy/. Public disgrace; infamy; re
proach; dishonor. Ignominy is the opposite of esteem. 
Ignoramus /ign�reym�s/. Lat. "We are ignorant;" 
"We ignore it." Formerly the grand jury wrote this 
word on bills of indictment when, after having heard the 
evidence, they thought the accusation against the pris
oner was groundless, intimating that, though the facts 
might possibly be true, the truth did not appear to them; 
but now they usually write in English the words "No 
bill", "Not a true bill," or "Not found," if that is their 
verdict. But they are still said to ignore the bill. 
Ignorance. The want or absence of knowledge, unaware 
or uninformed. 
Ignorance of law is want of knowledge or acquain
tance with the laws of the land in so far as they apply to 
the act, relation, duty, or matter under consideration. 
Ignorance of fact is want of knowledge of some fact or 
facts constituting or relating to the subject-matter in 
hand. 
Ignorance is not a state of the mind in the sense in 
which sanity and insanity are. When the mind is igno
rant of a fact, its condition still remains sound; the 
power of thinking, of judging, of willing, is just as 
complete before communication of the fact as after. The 
essence or texture, so to speak, of the mind, is not, as in 
the case of insanity, affected or impaired. Ignorance of 
a particular fact consists in this: that the mind, al-
746 
though sound and capable of healthy action, has never 
acted upon the fact in question, because the subject has 
never been brought to the notice of the perceptive facul
ties. 
In criminal law, ignorance as to a fact may be a 
defense, but ignorance as to law generally is no defense. 
See Model Penal Code, § 2.04. 
See also Mistake (Mistake of fact and law). 
Synonyms 
"Ignorance" and "error" or "mistake" are not convert
ible terms. The former is a lack of information or 
absence of knowledge; the latter, a misapprehension or 
confusion of information, or a mistaken supposition of 
the possession of knowledge. Error as to a fact may 
imply ignorance of the truth; but ignorance does not 
necessarily imply error. 
General Types 
Culpable ignorance is that which results from a failure 
to exercise ordinary care to acquire knowledge, and 
knowledge which could be acquired by the exercise of 
ordinary care is by law imputed to the person and he is 
held to have constructive knowledge. Luck v. Buffalo 
Lakes, Tex.Civ.App., 144 S.W.2d 672, 676. 
Essential ignorance is ignorance in relation to some 
essential circumstance so intimately connected with the 
matter in question, and which so influences the parties, 
that it induces them to act in the business. 
Involuntary ignorance is that which does not proceed 
from choice, and which cannot be overcome by the use of 
any means of knowledge known to a person and within 
his power; as the ignorance of a law which has not yet 
been promulgated. 
Nonessential or accidental ignorance is that which has 
not of itself any necessary connection with the business 
in question, and which is not the true consideration for 
entering into the contract. 
Voluntary ignorance exists when a party might, by tak
ing reasonable efforts, have acquired the necessary 
knowledge. For example, every man might acquire a 
knowledge of the laws which have been promulgated. 
Ignorantia lign�rrensh(iy)�/. Lat. Ignorance; want of 
knowledge. Distinguished from mistake (error), or 
wrong conception. Divided by Lord Coke into ignoran
tia facti (ignorance of fact) and ignorantia juris (igno
rance of law). And the former, he adds, is twofold-lec
tionis et lingure (ignorance of reading and ignorance of 
language). See Ignorance. 
Ignorantia eorum qUa! quis scire tenetur non excusat 
/ign�rrensh(iy)� iyor�m kwiy kwis sayriy t�niyt�r non 
�ksk(y)uwz�tI. Ignorance of those things which one is 
bound to know excuses not. 
Ignorantia facti excusat /ign�rrensh(iy)� frektay �ks
kyuwz�t/. Ignorance of fact excuses or is a ground of 
relief. Acts done and contracts made under mistake or

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747 
ignorance of a material fact are voidable and relievable 
in law and equity. 
Ignorantia facti excusat, ignorantia juris non excu
sat lign�rrensh(iy)� frektay �kskyuwz�t, ign�rrensh(iy)� 
jur�s non �kskyuwz�t/. Ignorance of the fact excuses; 
ignorance of the law excuses not. Every man must be 
taken to be cognizant of the law; otherwise there is no 
saying to what extent the excuse of ignorance may not 
be carried. 
Ignorantia juris quod quisque tenetur scire, nemi
nem excusat lign�rrensh(iy)� jur�s kwod kwiskwiy 
t�niyt�r sayriy, nem�n�m �kskyuwz�t/. Ignorance of 
the [or a] law, which every one is bound to know, 
excuses no man. A mistake in point of law is, in 
criminal cases, no sort of defense. And, in civil cases, 
ignorance of the law, with a full knowledge of the facts, 
furnishes no ground, either in law or equity, to rescind 
agreements, or reclaim money paid, or set aside solemn 
acts of the parties. 
Ignorantia juris sui non prrejudicat juri 
lign�rrensh(iy)� juris s(y)uway non pr�juwd�k�t juray/. 
Ignorance of one's right does not prejudice the right. 
Ignorantia legis neminem excusat lign�rrensh(iy)� 
liyj�s nem�n�m �kskyuwz�t/. Ignorance of law excuses 
no one. 
Ignorantia prresumitur ubi scientia non probatur 
lign�rrensh(iy)� pr�z(y)uwm;}t;}r yuwbay sayensh
(iy);} non pr;}beyt;}r/. Ignorance is presumed where 
knowledge is not proved. 
Ignorare legis est lata culpa lign�reriy liyj;}s est leyt;} 
k�lp�/. To be ignorant of the law is gross neglect. 
Ignoratio elenchi lign;}reysh(iy)ow ;}lelJkay/. Lat. A 
term of logic, sometimes applied to pleadings and to 
arguments on appeal, which signifies a mistake of the 
question, that is, the mistake of one who, failing to 
discern the real question which he is to meet and 
answer, addresses his allegations or arguments to a 
collateral matter or something beside the point. 
Ignoratis terminis artis, ignoratur et ars lign;}reyd;}s 
t�rm;}n;}s art;}s, ign;}reyt;}r ed arz/. Where the terms of 
an art are unknown, the art itself is unknown also. 
Ignore. To be ignorant of, or unacquainted with. To 
disregard willfully; to refuse to recognize; to decline to 
take notice of. 
To reject as groundless, false or unsupported by evi
dence; as when a grand jury ignores a bill of indictment. 
Ignoscitur ei qui sanguinem suum qualiter redemp
tum voluit lign6s;}t;}r iyay kway srelJgw;}n;}m s(y)uw;}m 
kw61;}t;}r r;}dem(p)t;}m v61(y)uw;}t/. The law holds him 
excused from obligation who chose to redeem his blood 
(or life) upon any terms. Whatever a man may do 
under the fear of losing his life or limbs will not be held 
binding upon him in law. 1 Bl.Comm. 131. 
Ikbal. Acceptance (of a bond, etc.). 
Ikbal dawa. Confession of judgment. 
ILLEGITIMATE CmLD 
Ikrah. Compulsion; especially constraint exercised by 
one person over another to do an illegal act, or to act 
contrary to his inclination. 
Ikrar. Agreement, assent, or ratification. 
Ikrar nama. A deed of assent and acknowledgment. 
Ill. In old pleading, bad; defective in law; null; naught; 
the opposite of good or valid. 
Illegal. Against or not authorized by law. 
Illegal contract. Contract is illegal where its formation 
or performance is expressly forbidden by a civil or 
criminal statute or where penalty is imposed for doing 
act agreed upon. Hiltpold v. T-Shirts Plus, Inc., App., 
98 Wis.2d 711, 298 N.W.2d 217, 220. 
Illegal entry. An alien is guilty of illegal entry if: (1) he 
enters the country at the wrong time or place, or (2) 
eludes an examination by immigration officers, or (3) 
obtains entry by fraud, or (4) knowingly enters into a 
marriage for the purpose of evading any provision of the 
immigration laws. 8 U.S.C.A. § 1325. 
Illegal interest. Usury; interest at a higher rate than 
the law allows. 
Illegality lil;}grebtiy/. That which is contrary to the 
principles of law, as contradistinguished from mere 
rules of procedure. 
Illegally obtained evidence. Evidence which is ob
tained in violation of defendant's rights because officers 
had no warrant and no probable cause to arrest or 
because the warrant was defective and no valid grounds 
existed for seizure without a warrant. Evidence secured 
in violation of statutes or constitutional guarantee 
against unreasonable searches; U.S. Constitution, 4th 
Amendment. Such evidence is inadmissible in criminal 
trial of victim of such search. Mapp v. Ohio, 367 U.S. 
643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Exclusionary 
Rule; Fruit of poisonous tree doctrine; Suppression hear
ing; Suppression of evidence. 
Illegal per see Unlawful in and of itself and not because 
of some extraneous circumstance, e.g. a contract to as
sassinate a public official. 
Illegal trade. Such traffic or commerce as carried on itn 
violation of federal, state, or local laws; e.g. trade in 
violation of antitrust laws; trade in stolen goods. 
Illegitimacy lil;}jit;}m;}siy/. The condition before the 
law, or the social status, of a child born out of wedlock; 
condition of one whose parents were not intermarried at 
the time of his or her birth. 
Illegitimate lil;}jit;}m;}t/. That which is contrary to law; 
term is usually applied to children born out of lawful 
wedlock. See Il legitima te child. 
Illegitimate child. Child who is born at a time when his 
parents, though alive, are not married to each other. 
Such child however is legitimate if they were married 
after his conception and before his birth. Home of Holy 
Infancy v. Kaska, Tex., 397 S.W.2d 208. An illegitimate 
child has a constitutionally protected right to inherit 
from his or her father. Trimble v. Gordon, 430 U.S. 762,

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ILLEGITIMATE CHILD 
97 S.Ct. 1459, 52 L.Ed.2d 31. Since the Supreme Court's 
decision in Trimble, many state statutes dealing with 
the inheritance rights have been amended to avoid un
justified discrimination against illegitimate children. 
E.g. , Reed v. Campbell, 476 U.S. 852, 106 S.Ct. 2234, 90 
L.Ed.2d 858. See also Person. 
III fame. Evil repute; notorious bad character. Houses 
of prostitution, gaming houses, and other such disorder
ly places are called "houses of ill fame," and a person 
who frequents them is a person of ill fame. 
Illicenciatus /ibsEmsiyeyt�s/. In old English law, with
. out license. 
Illicit /�lis�t/. Not permitted or allowed; prohibited; 
unlawful; as an illicit trade; illicit intercourse. 
Illicit cohabitation. The living together as man and 
wife of two persons who are not lawfully married, with 
the implication that they habitually practice fornication. 
Thomas v. United States, D.C.Mass., 14 F.2d 228, 229. 
At common law and by statutes in many states, living 
together either in adultery or fornication is a crime, 
though at common law such cohabitation had to be open 
and notorious so as to cause a public scandal. Such 
statutes are seldom enforced. See Adultery. 
Illicit connection. Unlawful sexual intercourse. See 
Il licit relations. 
Illicit distillery. One carried on in violation of the laws 
of the United States relating to the distribution and 
taxation of spirituous liquor. 
Illicit relations. Any form of unlawful sexual inter
course such as fornication or adultery. See Il licit cohab
itation. 
Illicit trade. Policies of marine insurance usually con
tain a covenant of warranty against "illicit trade", 
meaning thereby trade which is forbidden, or declared 
unlawful, by the laws of the country where the cargo is 
to be delivered. 
Illicitum collegium / �lis�t�m k�liyj(i)y�m/. Lat. An 
illegal corporation. 
Illinois land trust. See Land trust. 
Illiteracy. The condition of one who cannot read or 
write and, in general, of one who is unlettered or un
learned. 
Illness. Sickness, disease or disorder of body or mind. 
In insurance law, a disease or ailment of such a charac
ter as to affect the general soundness and healthfulness 
of the system seriously, and not a mere temporary 
indisposition which does not tend to undermine or weak
en the constitution of the insured. Zogg v. Bankers' Life 
Co. of Des Moines, Iowa, C.C.A.W.Va., 62 F.2d 575, 578. 
For mental illness, see Insanity. See also Serious ill ness. 
Illocable /ilo(w)k�b�l/. Incapable of being placed out or 
hired. 
Illud /il�dI. Lat. That. 
Illud, quod alias licitum non est, necessitas facit 
licitum; et necessitas inducit privilegium quoad 
748 
jura privata /il�d kwod eyliy�s lis�t�m non est 
n�ses�tres feys�t lis�t�m; et n�ses�tres �nd(y)uws�t 
priv�liyj(iy)�m kwowred jur� pr�veyt�/. That which is 
otherwise not permitted, necessity permits; and necessi
ty makes a privilege as to private rights. 
Illud, quod alteri unitur, extinguitur, neque amplius 
per se vacare licet /il�d, kwod olt�ray yuwn�t�r, 
�kstiIJgw�t�r, nekwiy rempliy�s p�r siy v�keriy lays�t/. 
That which is united to another is extinguished, nor can 
it be any more independent. 
Illusion /�l(y)uwzh�n/. Distorted or misinterpreted sen
sory impression which, in contrast to hallucinations, 
arises from an actual stimulus, i.e., shadow is taken to 
be a man, specks on window are seen as a swarm of 
mosquitos. Prevalent in delirious states. The misinter
pretation of a real, external sensory experience. 
An image or impression in the mind, excited by some 
external object addressing itself to one or more of the 
senses, but which, instead of corresponding with the 
reality, is perverted, distorted, or wholly mistaken, the 
error being attributable to the imagination of the ob
server, not to any defect in the organs of sense. See 
Hallucination. 
Illusory / �l(y)uws�riy ;Ouwz· /. Deceiving by false ap
pearances; nominal, as distinguished from substantial; 
fallacious; illusive. Bolles v. Toledo Trust Co., 144 Ohio 
St. 195, 58 N.E.2d 381, 390. 
Illusory appointment. Nominal, overly restrictive or 
conditional transfer of property under power of appoint
ment; lacking in substantial existence. 
Formerly the appointment of a merely nominal share 
of the property to one of the objects of a power, in order 
to escape the rule that an exclusive appointment could 
not be made unless it was authorized by the instrument 
creating the power, was considered illusory and void in 
equity. This rule has been abolished in England. 
Brown v. Fidelity Union Trust Co., 126 N.J.Eq. 406, 9 
A.2d 311. See Ill usory AppOintment Act. 
Illusory Appointment Act. This English statute pro
vided that no appointment made after its passing (July 
16, 1830), in exercise of a power to appoint property, real 
or personal, among several objects, shall be invalid, or 
impeached in equity, on the ground that an unsubstan
tial, illusory, or nominal share only was thereby ap
pointed, or left unappointed, to devolve upon any one or 
more of the objects of such power; but that the appoint
ment shall be valid in equity, as at law. See now Law of 
Property Act (1925), § 158. 
Illusory contract. An expression cloaked in promissory 
terms, but which, upon closer examination, reveals that 
the promisor has not committed himself in any manner. 
Harrington v. Harrington, N.D., 365 N.W.2d 552, 555. 
See also Ill usory promise. 
Illusory promise. A purported promise that actually 
promises nothing because it leaves to speaker the choice 
of performance or nonperformance. When promise is 
illusory, there is no actual requirement upon promisor 
that anything be done because promisor has an alterna-

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tive which, if taken, will render promisee nothing. 
When provisions of supposed promise leave promisor's 
performance optional or entirely within discretion, 
pleasure and control of promisor, the promise is illusory. 
Interchange Associates v. Interchange, Inc., 16 Wash. 
App. 359, 557 P.2d 357, 358. 
An illusory promise is an expression cloaked in prom
issory terms, but which, upon closer examination, re
veals that the promisor has really not committed him
self to anything. If performance of an apparent promise 
is entirely optional with the provisor, the promise is 
illusory. 
Illusory tenant. A straw man who, as landlord's alter 
ego, subleases apartment to permit landlord to circum
vent or evade obligations under rent laws, or prime 
tenant who is individual entrepreneur trafficking in 
stabilized or controlled apartments which he subleases 
as business. Conti v. Citrin, Sup., 132 Misc.2d 834, 505 
N.Y.S.2d 481, 482. 
Illusory trust. Where a settlor in form either declares 
himself trustee of, or transfers to a third party, property 
in trust, but by the terms of the trust, or by his dealings 
with the trust property, in substance exercises so much 
control over the trust property that it is clear that he 
did not intend to relinquish any of his rights in the trust 
property, the trust is invalid as illusory. A trust ar
rangement which takes the form of a trust, but because 
of powers retained in the settlor has no real substance 
and in reality is not a completed trust. In re Herron's 
Estate, Fla.App., 237 So.2d 563, 566. 
Dlustrious / �l:}striy�s/. The prefix to the title of a 
prince of the blood in England. 
Imagine. In old English law, in cases of treason the law 
made it a crime to imagine the death of the king. But, 
in order to complete the crime, this act of the mind must 
have been demonstrated by some overt act. The terms 
"imagining" and "compassing" are in this connection 
synonymous. 4 Bl.Comm. 78. 
Imbargo. An old form of "embargo" (q.v.). 
Imbecility. See Insanity. 
Imbezzle. An occasional or obsolete form of "embezzle" 
(q.v.). 
Imbracery. See Embracery. 
Imitation. The making of one thing in the similitude or 
likeness of another; as, counterfeit coin is said to be 
made "in imitation" of the genuine. That which is 
. made or produced as a copy; an artificial likeness; a 
counterfeit; simulating something superior. Coffee
Rich, Inc. v. Kansas State Bd. of Health, 192 Kan. 431, 
388 P.2d 582, 585, 587. 
An imitation of a trademark is that which so far 
resembles the genuine trademark as to be likely to 
induce the belief that it is genuine, whether by the use 
of words or letters similar in appearance or in sound, or 
by any sign, device, or other means. The test of "color
able imitation" is, not whether a difference may be 
recognized between the names of two competing articles 
IMMEDIATE 
when placed side by side, but whether the difference will 
be recognized by the purchaser with no opportunity for 
comparison. The Best Foods v. Hemphill Packing Co., 
D.C.Del., 5 F.2d 355, 357. 
See Counterfeit; Forgery. 
Immaterial. Not material, essential, or necessary; not 
important or pertinent; not decisive; of no substantial 
consequence; without weight; of no material signifi
cance. See also Impertinence; Irrelevancy: Irrelevant alle
gation. Compare Material; Material fact; Relevant. 
Immaterial averment. In pleading, an averment alleg
ing with needless particularity or unnecessary circum
stances what is material and necessary, and which 
might properly have been stated more generally, and 
without such circumstances and particulars; or, in other 
words, a statement of unnecessary particulars in connec
tion with and as descriptive of what is material. Such 
immaterial matter may be ordered stricken from the 
pleading. Fed.R. Civil P. 12(f). See also Irrelevant allega
tion. 
Immaterial evidence. Evidence which lacks probative 
weight and is unlikely to influence the tribunal in 
resolving the issue before it. Such evidence is common
ly objected to by opposing counsel, and disallowed by the 
court. See also Irrelevancy. Compare Relevant evidence. 
Immaterial facts. Those which are not essential to the 
right of action or defense. See Immaterial averment . 
Compare Material fact. 
Immaterial issue. In pleading, an issue taken on an 
immaterial point; that is, a point not proper to decide 
the action. 
Immaterial variance. Discrepancy between the plead
ing and proof of a character so slight that the adverse 
party cannot say that he was misled thereby. One in 
which difference between allegations and proof is so 
slight and unimportant that adverse party is not misled 
or prejudiced in maintaining his defense. Strimiska v. 
Yates, 158 Conn. 179, 257 A.2d 814, 817. See also 
Variance. 
Immediacy. The state or quality of being immediately 
and directly perceived; urgency; occurring without de
lay. 
Immediate. Present; at once; without delay; not de
ferred by any interval of time. In this sense, the word, 
without any very precise signification, denotes that ac
tion is or must be taken either instantly or without any 
considerable loss of time. A reasonable time in view of 
particular facts and circumstances of case under consid
eration. Next in line or relation; directly connected; 
not secondary or remote. Not separated in respect to 
place; not separated by the intervention of any interme
diate object, cause, relation, or right. Thus we speak of 
an action as prosecuted for the "immediate benefit" of 
A., of a devise as made to the "immediate issue" of B., 
etc. 
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IMMEDIATE CAUSE 
Immediate cause. The last of a series or chain of causes 
tending to a given result, and which, of itself, and 
without the intervention of any further cause, directly 
produces the result or event. A cause may be immedi
ate in this sense, and yet not "proximate;" and con
versely, the proximate cause (that which directly and 
efficiently brings about the result) may not be immedi
ate. The familiar illustration is that of a drunken man 
falling into the water and drowning. His intoxication is 
the proximate cause of his death, if it can be said that 
he would not have fallen into the water when sober; but 
the immediate cause of death is suffocation by drowning. 
See also Proximate cause. 
Immediate control. Such constant control as would 
enable driver to instantly govern vehicle's movements, 
including the power to stop within a distance in which 
such a vehicle, in good mechanical condition, driven by a 
reasonably skillful driver, and traveling at a lawful rate 
of speed, could be stopped. 
Immediate danger. Definition of "immediate danger" 
as part of humanitarian doctrine contemplates that 
there be some inexorable circumstance, situation or 
agency bearing down on plaintiff with reasonable proba
bility of danger prior to negligent act of defendant. 
Curran v. Bi-State Development Agency, Mo.App., 522 
S.W.2d 98, 100. See also Immin ent danger; Immin ent 
peril. 
Immediate descent. See Descent. 
Immediate family. Term generally referring to one's 
parents, wife or husband, children, and brothers and 
sisters. 
Immediately. Without interval of time, without delay, 
straightway, or without any delay or lapse of time. 
Drumbar v. Jeddo-Highland Coal Co., 155 Pa.Super. 57, 
37 A.2d 25, 27. When used in contract is usually con
strued to mean "within a reasonable time having due 
regard to the nature of the circumstances of the case", 
although strictly, it means "not deferred by any period 
of time". Integrated, Inc. v. Alec Fergusson Elec. Con
tractors, 250 C.A.2d 287, 58 Cal.Rptr. 503, 508, 509. The 
words "immediately" and "forthwith" have generally 
the same meaning. They are stronger than the expres
sion "within a reasonable time" and imply prompt, 
vigorous action without any delay. Alsam Holding Co. 
v. Consolidated Taxpayers' Mut. Ins. Co., 4 N.Y.S.2d 498, 
505, 167 Misc. 732. 
Immediate notice. As required by insurance policy as 
for proof of loss means within a reasonable time. Lydon 
v. New York Life Ins. Co., C.C.A.Mo., 89 F.2d 78, 82. 
Immemorial. Beyond human memory; time out of 
mind. 
Immemorial usage. A practice which has existed time 
out of mind; custom; prescription. 
Immeubles limyuwbb /. Fr. These are, in French law, 
the immovables of English law. Things are immeubles 
from any one of three causes: (1) From their own 
nature, e.g., lands and houses; (2) from their destination, 
e.g., animals and instruments of agriculture when sup-
750 
plied by the landlord; or (3) by the object to which they 
are annexed, e.g., easements. 
Immigrant. An alien in a country except, in United 
States, one within a specified class within the Immigra
tion and Nationality Act. 8 U.S.C.A. § 11 01(a)(15). One 
who leaves a country to permanently settle in another. 
Immigration. The coming into a country of foreigners 
for purposes of permanent residence. The correlative 
term "emigration" denotes the act of such persons in 
leaving their former country. 
Immigration and Nationality Act. A comprehensive 
federal law which deals with immigration, naturaliza
tion and exclusion of aliens. 8 U.S.C.A. § 11 01 et seq. 
Immigration and Naturalization Service. Such Ser
vice is responsible for administering the immigration 
and naturalization laws relating to the admission, exclu
sion, deportation, and naturalization of aliens. Specifi
cally, the Service inspects aliens to determine their 
admissibility into the United States; adjudicates re
quests of aliens for benefits under the law; guards 
against illegal entry into the United States; investi
gates, apprehends, and removes aliens in this country in 
violation of the law; and examines alien applicants 
wishing to become citizens. 
Immigration Appeals Board. The Board of Immigra
tion Appeals, the highest administrative tribunal in the 
immigration field, is charged with the interpretation 
and administration of the immigration laws. The Board 
has jurisdiction, defined by regulation, to hear appeals 
from certain decisions of the Immigration and Naturali
zation Service. Most of the cases reaching the Board 
consist of appeals from formal orders of the Service's 
Immigration Judges entered in due process deportation 
hearings against aliens. These usually also involve ap
plications by aliens for discretionary relief from deporta
tion. 
Imminent. Near at hand; mediate rather than immedi
ate; close rather than touching; impending; on the 
point of happening; threatening; menacing; perilous. 
Something which is threatening to happen at once, 
something close at hand, something to happen upon the 
instant, close although not yet touching, and on the 
point of happening. Continental Illinois Nat. Bank & 
Trust Co. of Chicago v. U.S., C.A.Ill., 504 F.2d 586, 588. 
Imminent danger. In relation to homicide in self-de
fense, this term means immediate danger, such as must 
be instantly met, such as cannot be guarded against by 
calling for the assistance of others or the protection of 
the law. Or, as otherwise defined, such an appearance 
of threatened and impending injury as would put a 
reasonable and prudent man to his instant defense. See 
Self-defense. 
Imminently dangerous article. One that is reasonably 
certain to place life or limb in peril. Employers' Liabili
ty Assur. Corporation v. Columbus McKinnon Chain Co., 
D.C.N.Y., 13 F.2d 128. 
Imminent peril. Such peril under humanitarian doc
trine means certain, immediate, and impending, and not

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remote, uncertain, or contingent; and likelihood or bare 
possibility of injury is not sufficient to create uimminent 
peril." HaStings v. Coppage, Mo., 411 S.W.2d 232, 236. 
That position of danger to the plaintiff in which-if the 
existing circumstances remain unchanged-injury to 
him is reasonably certain. Elam v. Allbee, Mo.App., 432 
S.W.2d 379, 38 1. Doctrine of uimminent peril" is prop
erly applied only in cases where an unexpected physical 
danger is presented so suddenly as to deprive driver of 
his power of using reasonable judgment, and a party will 
be denied benefit of the doctrine where that party's 
negligence causes or contributes to creation of the peril
ous situation. Pittman v. Boiven, 249 C.A.2d 207, 57 
Cal.Rptr. 319, 325. See also Emergency doctrine; Hu
manitarian doctrine. 
Immiscere /imis;}riy/. Lat. In the civil law, to mix or 
mingle with; to meddle with; to join with. 
Immobilia situm sequuntur lim;}bil(i)y;} sayt;}m s;}k
w�nt;}r/. Immovable things follow their site or position; 
are governed by the law of the place where they are 
fixed. Cf. Mobilia Sequuntur Personam. 
Immobilis /imowb;}bs/. Lat. Immovable. Immobilia 
or res immobiles, immovable things, such as lands and 
buildings. 
Immoderate /imod;}r;}t/. Exceeding just, usual, or suit
able bounds; not within reasonable limits. 
Immoral. Contrary to good morals; inconsistent with 
the rules and principles of morality; inimical to public 
welfare according to the standards of a given communi
ty, as expressed in law or otherwise. Morally evil; 
impure; obscene; unprincipled; vicious; or dissolute. 
U. S. v. One Book, Entitled "Contraception," by Marie C. 
Stopes, D.C.N.Y., 51 F.2d 525, 527. Immorality has not 
been confined to sexual matters, but includes conduct 
inconsistent with rectitude, or indicative of corruption, 
indecency, depravity, and dissoluteness; or is wilful, 
flagrant, or shameless conduct showing moral indiffer
ence to opinions of respectable members of the commu
nity, and as an inconsiderate attitude toward good order 
and public welfare. Clarke v. Board of Educ. of School 
Dist. of Omaha, in Douglas County, in State of Neb., 215 
Neb. 250, 338 N.W.2d 272, 277. 
Immoral act or conduct. Within rules authorizing dis
barment of attorney is that conduct which is willful, 
flagrant, or shameless, and which shows a moral indif
ference to the opinions of the good and respectable 
members of the community. In re Monaghan, 126 Vt. 
53, 222 A.2d 665, 674. 
Immoral consideration. One contrary to good morals, 
and therefore invalid. Contracts based upon an immor
al consideration are generally void. 
Immoral contracts. Contracts founded upon considera
tions contra bonos mores are void. 
Immorality. That which is contra bonos mores. See 
Im moral. 
IMMUNITY 
Immovables. In the civil law, property which, from its 
nature, destination, or the object to which it is applied, 
cannot move itself, or be removed. 
In conflicts of law, refers to land and those things so 
firmly attached thereto that they may be regarded as 
part of it and the law of the situs governs in choice of 
law. Restatement, Second, Conflict of Laws, § 223. 
Immunity. Exemption, as from serving in an office, or 
performing duties which the law generally requires oth
er citizens to perform; e.g. exemption from paying taxes. 
Freedom or exemption from penalty, burden, or duty. 
Special privilege. See also Exemption; Judicial immuni ty; 
Legislative immuni ty; Parent-child immuni ty; Privilege; 
Sovereign immuni ty. 
Governmental tort immunity. The federal, and deriva
tively, the state and local governments are free from 
liability for torts committed except in cases in which 
they have consented by statute to be sued; e.g. Federal 
Tort Claims Act; state tort claims acts. Most states, 
either by statute or court decision, have abolished or 
greatly restricted the doctrine of sovereign immunity at 
both the state and local levels. 
The Supreme Court has held that local governments 
can be sued directly under 42 U.S.C.A. § 1983 for mone
tary, declaratory, or injunctive relief where "the action 
that is alleged to be unconstitutional implements or 
executes a policy statement, ordinance, regulation, or 
decision officially adopted and promulgated by that 
body's officers." Monell v. Department of Social Servic
es of N. Y., 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789. 
A state law that immunizes government conduct other
wise subject to suit under 42 U.S.C.A. § 1983 is preempt
ed. Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 
L.Ed.2d 123. 
See also Color of law; Federal Tort Claims Act; Official 
immu nity doctrine; Sovereign immuni ty. 
Immunity from prosecution. By state and federal stat
utes, a witness may be granted immunity from prosecu
tion for his or her testimony (e.g. before grand jury). 
States either adopt the "use" or the "transactional" 
immunity approach. The federal government replaced 
the later with the former approach in 1970. The dis
tinction between the two is as follows: "Use immunity" 
prohibits witness' compelled testimony and its fruits 
from being used in any manner in connection with 
criminal prosecution of the witness; on the other hand, 
"transactional immunity" affords immunity to the wit
ness from prosecution for offense to which his compelled 
testimony relates. People v. Henson, Colo.App., 705 
P.2d 996. See 18 U.S.C.A. §§ 6001--6005. 
Protection from prosecution must be commensurate 
with privilege against self incrimination, but it need not 
be any greater and hence a person is entitled only to 
protection from prosecution based on the use and deriva
tive use of his testimony; he is not constitutionally 
entitled to protection from prosecution for everything 
arising from the illegal transaction which his testimony 
concerns (transactional immunity). Kastigar v. U. S., 
406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212.

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IMMUNITY 
Interspousal immunity. See Husban d-wife tort actions. 
Qualified immunity. Affirmative defense which shields 
public officials performing discretionary functions from 
civil damages if their conduct does not violate clearly 
established statutory or constitutional rights of which 
reasonable person would have known. Lowe v. Letsing
er, C.A.lnd., 772 F.2d 30B. 
Property law. A freedom on the part of one person 
against having a given legal relation altered by a given 
act or omission to act on the part of another person. 
Restatement of Property, § 4. 
Immunization. The condition of being, or the act ren
dering one, immunized or protected, especially from 
communicable diseases. 
Impacted area. An area whose school population has 
been burdened because of attendance by a large number 
of federal employees' children and which may at the 
same time be losing school tax revenue because of the 
United States Government's immunity from land taxes. 
Douglas Independent School Dist. v. Jorgenson, D.C.S.D., 
293 F.Supp. 849, 850. 
Impact rule. Rule formerly prevailing in many jurisdic
tions which required a blow or impact from without as a 
condition for recovering damages in negligence for emo
tional distress. Such rule has been abandoned in most 
jurisdictions today. 
Impair. To weaken, to make worse, to lessen in power, 
diminish, or relax, or otherwise affect in an injurious 
manner. To diminish in quality, value, excellence or 
strength, and not every change that affects contract 
constitutes an impairment. Beaumont v. Faubus, 239 
Ark. 801, 394 S.W.2d 478, 482. 
Impaired capital. Condition of a business when the 
surplus account shows a negative balance and hence the 
capital is reduced below its value from when the stock 
was issued (i.e. less than the stated or par value of 
business' capital stock). 
Impairing the obligation of contracts. A law which 
impairs the obligation of a contract is one which renders 
the contract in itself less valuable or less enforceable, 
whether by changing its terms and stipulations, its legal 
qualities and conditions, or by regulating the remedy for 
its enforcement. 
To "impair the obligation of a contract", within prohi
bition of Art. I, § 10, U.S .Const., is to weaken it, lessen 
its value, or make it worse in any respect or in any 
degree, and any law which changes the intention and 
legal effect of the parties, giving to one a greater and to 
the other a less interest or benefit, or which imposes 
conditions not included in the contract or dispenses with 
the performance of those included, impairs the obli
gation of the contract. 
A statute "impairs the obligation of a contract" when 
by its terms it nullifies or materially changes existing 
contract obligations. 
Impanel. The act of the clerk of the court in making up 
a list of the jurors who have been selected for the trial of 
752 
a particular cause. All the steps of ascertaining who 
shall be the proper jurors to sit in the trial of a particu
lar case up to the final formation. See also Jury-list; 
Jury panel. 
Imparcare limparkeriy/. In old English law, to im
pound. To shut up, or confine in prison. Inducti sunt 
in carcerem et imparcati, they were carried to prison and 
shut up. 
Imparl I ::lmparl/. To have license to settle a litigation 
amicably; to obtain delay for adjustment. 
Imparlance I ::lmparl:m(t)s/. In early practice, impar
lance meant time given to either of the parties to an 
action to answer the pleading of the other. It thus 
amounted to a continuance of the action to a further 
day. Literally the term signified leave given to the 
parties to talk together; i.e., with a view to settling their 
differences amicably. But in modern practice it denotes 
a time given to the defendant to plead. 
A general imparlance is the entry of a general prayer 
and allowance of time to plead till the next term, with
out reserving to the defendant the benefit of any excep
tion; so that after such an imparlance the defendant 
cannot object to the jurisdiction of the court, or plead 
any matter in abatement. This kind of imparlance is 
always from one term to another. 
A general special imparlance contains a saving of all 
exceptions whatsoever, so that the defendant after this 
may plead not only in abatement, but he may also plead 
a plea which affects the jurisdiction of the court, as 
privilege. He cannot, however, plead a tender, and that 
he was always ready to pay, because by craving time, he 
admits that he is not ready, and so falsifies his plea. 
A special imparlance reserves to the defendant all 
exceptions to the writ, bill, or count; and therefore after 
it the defendant may plead in abatement, though not to 
the jurisdiction of the court. 
Impartial. Favoring neither; disinterested; treating all 
alike; unbiased; equitable, fair, and just. 
Impartial expert. Witness appointed by tribunal for 
unbiased opinion on matter addressed to the court. 
Commonly, Worker's Compensation Board will appoint 
an impartial physician to examine and report his find
ings to Board. Similar usage of experts is made in 
social security disability hearings. Also, a court may 
appoint an expert witness (see e.g., Fed.R.Evid. 706). 
Impartial jury. The provision of the Bill of Rights 
(Sixth Amendment to Const. of U.S.) requiring that the 
accused shall have a fair trial by an impartial jury, 
means that the jury must be not partial, not favoring 
one party more than another, unprejudiced, disinterest
ed, equitable, and just, and that the merits of the case 
shall not be prejudged. Term refers to a jury which is of 
impartial frame of mind at beginning of trial, is influ
enced only by legal and competent evidence produced 
during trial, and bases its verdict upon evidence con
necting defendant with the commission of the crime 
charged. Houston v. State, Tenn., 593 S.W.2d 267, 272.

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753 
For Fair and impartial jury, and Fair and impartial trial, 
see those titles. 
Impartible feud /impart�b�l fyuwd/. See Feudum indi
viduum. 
Impeach. To accuse; to charge a liability upon; to sue. 
To dispute, disparage, deny, or contradict; as, to im
peach a judgment or decree, or impeach a witness; or as 
used in the rule that a jury cannot "impeach their 
verdict". To proceed against a public officer for crime 
or misfeasance, before a proper court, by the presenta
tion of a written accusation called "articles of impeach
ment". See Impeachment. 
Impeachment. A criminal proceeding against a public 
officer, before a quasi political court, instituted by a 
written accusation called "articles of impeachment"; for 
example, a written accusation by the House of Repre
sentatives of the United States to the Senate of the 
United States against the President, Vice President, or 
an officer of the United States, including federal judges. 
Such federal power of impeachment is provided for in 
Art. II, § 4 of the Constitution. Under Art. I, § 2, cl. 5, 
the House of Representatives "shall have the sole Power 
of Impeachment", and under § 3, cl. 6, "The Senate shall 
have the sole Power to try all Impeachments". A two 
thirds vote of the ,Senate is required for impeachment. 
Articles of impeachment. The formal written allegation 
of the causes for an impeachment, answering the same 
purpose as an indictment in an ordinary criminal pro
ceeding. Under the above cited constitutional provi
sions, Articles of Impeachment are initiated by the 
House of Representatives with the trial conducted by 
the Senate. See also Address (Bill of address). 
Collateral impeachment. See Collateral attack. 
Impeachment of verdict. Attack on verdict because of 
alleged improprieties in the jury's deliberations or con
duct. 
Impeachment of witness. To call in question the veraci
ty of a witness, by means of evidence adduced for such 
purpose, or the adducing of proof that a witness is 
unworthy of belief. McWethy v. Lee, 1 Ill.App.3d 80, 
272 N .E.2d 663, 666. In general, though there are 
variations from state to state, a witness may be im
peached with respect to prior inconsistent statements, 
contradiction of facts, bias, or character. A witness, 
once impeached, may be rehabilitated with evidence 
supporting credibility. State v. Peterson, Iowa, 219 
N.W.2d 665, 671. 
Fed.R.Civil P. 32(a)(1) permits the use at trial of a 
witness's prior deposition to discredit or impeach testi
mony of the deponent as a witness. 
Fed.Evid.R. 607 provides that the "credibility of a 
witness may be attached by any party, including the 
party calling him." Rule 608 governs impeachment by 
evidence of character and conduct of witness, and Rule 
609 impeachment by evidence of conviction of crime. 
See also Address (Bill of address); Cross-ex amination; 
Jenks Act or Rule; Prior inconsistent statements. 
Black's Law Dictionary 6th Ed,-17 
IMPERITIA 
Impechiare I�mpiychiyolriy/. To impeach, to accuse, or 
prosecute for felony or treason. 
Impede. To obstruct; hinder; check; delay. 
Impediens limpiydiyimz/. In old English practice, one 
who hinders; an impedient. The defendant or deforci
ant in a fine was sometimes so called. 
Impedimento limpey3imentow/. In Spanish law, a pro
hibition to contract marriage, established by law be
tween certain persons. 
Impediments limped�m�nts/. Disabilities, or hindranc
es to the making of contracts, such as infancy, want of 
reason, etc. 
Civil law. Absolute impediments are those which pre
vent the person subject to them from marrying at all, 
without either the nullity of marriage or its being pun
ishable. Diriment impediments are those which render 
a marriage void; as where one of the contracting parties 
is unable to marry by reason of a prior undissolved 
marriage. Prohibitive impediments' are those which do 
not render the marriage null, but subject the parties to 
a punishment. Relative impediments are those which 
regard only certain persons with respect to each other; 
as between two particular persons who are related with
in the prohibited degrees. 
Impediment to marriage. Legal obstacle to contracting 
a valid marriage such as relationship of blood within 
prohibited degree of consanguinity between parties. See 
also Impediments. 
Impeditor limped�t�r/. In old English law, a disturber 
in the action of quare impedit. 
Impensre limpensiy/. Lat. In the civil law, expenses; 
outlays. Divided into necessary (necessarice), useful 
(utiles), and tasteful or ornamental (voluptuarire). 
Imperative. Mandatory. See Directory. 
Imperator limp�reyt�r/. Emperor. The title of the 
Roman emperors, and also of the Kings of England 
before the Norman conquest. 1 Bl.Comm. 242. See 
Emperor. 
Imperfect. As used in various legal compound terms, 
this word means defective or incomplete; wanting in 
some legal or formal requisite; wanting in legal sanc
tion or effectiveness; as in speaking of imperfect "obli
gations," "ownership," "rights," "title," "usufruct," or 
"war." See those nouns. 
Imperii majestas est tutelre salus limpiriyay m�jestres 
est t(y)uwtiyliy srebs/. The majesty of the empire is the 
safety of its protection. 
Imperitia limp�rish(iy)�/. Lat. Unskillfulness; want of 
skill. 
Imperitia culpre adnumeratur limp�rish(iy)� kollpiy �d
n(y)uwm�reyt�r/. Want of skill is reckoned as culpa; 
that is, as blamable conduct or neglect. 
Imperitia est maxima mechanicorum prena limp�r
ish(iy)� est mreks�m� m�kren�k6r�m piyn�/. Unskillful
ness is the greatest punishment of mechanics [that is,

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IMPERIUM 
from its effect in making them liable to those by whom 
they are employed]. The word "prena" in some transla
tions is erroneously rendered "fault." 
Imperium limpiriy;}m/. The right to command, which 
includes the right to employ the force of the state to 
enforce the laws. This is one of the principal attri
butes of the power of the executive. 
Impersonalitas /imp;)rs;}neyl;}bes/. Lat. Impersonality. 
A mode of expression where no reference is made to any 
person, such as the expression "ut dicitur" (as is said). 
Impersonalitas non concludit nec ligat 
/imp;)rs;}neyl;}tres non k;}lJkl(y)uwd;}t nek lig;}t/. Imper
sonality neither concludes nor binds. 
Impersonation. False impersonation is representing 
oneself to be a public officer or employee or a person 
licensed to practice or engage in any profession or voca
tion for which a license is required by state law with 
knowledge that such representation is false. The act of 
pretending or representing oneself to be another, com
monly a crime if the other is a public official or police 
officer. People v. Vaughn, 196 Cal.App.2d 622, 16 Cal. 
Rptr. 711. See 18 U.S.C.A. § 911 et seq. See also 
Personate. 
Impertinence. Irrelevancy; the fault of not properly 
pertaining to the issue or proceeding. The introduction 
of any matters into a bill, complaint, answer, or other 
pleading or proceeding in a suit, which are not properly 
before the court for decision, at any particular stage of 
the suit. Harrison v. Perea, 168 U.S. 311, 18 S.Ct. 129, 
42 L.Ed. 478. See Impertinent. 
A question propounded to a witness, or evidence of
fered or sought to be elicited, is called "impertinent" 
when it has no logical bearing upon the issue, is not 
necessarily connected with it, or does not belong to the 
matter in hand. See also Immaterial evidence. 
Impertinent. That which does not belong to a pleading, 
interrogatory, or other proceeding; out of place; super
fluous; irrelevant. A term applied to matter not neces
sary to constitute the cause of action or ground of 
defense. Such matter may be ordered stricken from the 
pleading. Fed.R. Civil P. 12(f). See also Immaterial aver
ment; Surplusage. 
Impescare /imp;}skeriy/. In old records, to impeach or 
accuse. Impescatus, impeached. 
Impetitio vasti /imp;}tish(iy)ow vrestay/. Impeachment 
of waste (q.v.). 
Impetrare /imp;}treriy/. In old English practice, to ob
tain by request, as a writ or privilege. This application 
of the word seems to be derived from the civil law. 
Impetration /imp;}treysh;}n/. In old English law, the 
obtaining anything by petition or entreaty. Particular
ly, the obtaining of a benefice from Rome by solicitation, 
which benefice belonged to the disposal of the king or 
other lay patron. 
Impier /impay(;})r/. Umpire (q.v.). 
Impierment /imperm;}nt/. Impairing or prejudicing. 
754 
Impignorata / ;}mpign;}reyd;}/ . Pledged; given in pledge 
(pignori data); mortgaged. 
Impignoration / ;}mpign;}reysh;}n/. The act of pawning 
or putting to pledge. 
Impius et crudelis judicandus est qui libertati non 
favet /impiy;}s et kruwdiyl;}s juwd;}krend;}s est kway 
Hb;}rteytay non feyv;}t/. He is to be judged impious and 
cruel who does not favor liberty. 
Implacitare /implres;}teriy/. Lat. To implead; to sue. 
Implead. To sue; to prosecute. To bring a new party 
into action on ground that new party is, or may be, 
liable to party who brings him in, for all or part of the 
subject matter claim. Fed.R. Civil P. 14. See Third-party 
practice. 
Impleader. Procedure by which party is impleaded. 
See Implead; Third-party practice; Vouching-in. Compare 
Interpleader; Joinder. 
Implements /impl;}m;}nts/. Such things as are used or 
employed for a trade, or furniture of a house. Particu
larly applied to tools, utensils, instruments of labor; as 
the implements of trade or of farming. 
Implication. Intendment or inference, as distinguished 
from the actual expression of a thing in words. In a 
will, an estate may pass by mere implication, without 
any express words to direct its course. 
An inference of something not directly declared, but 
arising from what is admitted or expressed. Act of 
implying or condition of being implied. 
"Implication" is also used in the sense of "inference"; 
i.e., where the existence of an intention is inferred from 
acts not done for the sole purpose of communicating it, 
but for some other purpose. 
See also Inference. 
Implied. This word is used in law in contrast to "ex
press"; i.e., where the intention in regard to the subject
matter is not manifested by explicit and direct words, 
but is gathered by implication or necessary deduction 
from the circumstances, the general language, or the 
conduct of the parties. Term differs from "inferred" to 
the extent that the hearer or reader "infers" while the 
writer or speaker "implies". 
As to implied Abrogation; Agency; Agreement; As
sumpsit; Condition; Confession; Consent; Consideration; 
Contract; Covenant; Dedication; Easement; Invitation; 
Malice; Notice; Obligation; Power; Trust; Use; Waiver; 
and Warranty, see those titles. 
Implied assertions. Statements which, while not ex
pressed, may be deduced from what is written or spoken. 
Implied authority. In law of agency, power given by 
principal to agent which necessarily follows from the 
express authority given though such power is not ex
pressly asserted. The power of an agent to act on behalf 
of his principal which is inferred from the responsibili
ties imposed on the agent or necessary to carry out an 
agent's express authority. Actual authority may be 
either express or implied, "implied authority" being that

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755 
which is necessary, usual and proper to accomplish or 
perform the main authority expressly delegated to an 
agent. Clark v. Gneiting, 95 Idaho 10, 501 P.2d 278, 
280. 
Implied consent. See Consent. 
Implied intent. Intent which necessarily arises from 
language used in an instrument or from conduct of 
parties. 
Implied promise. Fiction which the law creates to 
render one liable on contract theory so as to avoid fraud 
or unjust enrichment. See also Equitable estoppel. 
Implied reservation. Type of easement created by 
grantor for benefit of land retained by him and not 
included in conveyance. Wolek v. Di Feo, 60 N.J.S uper. 
324, 159 A.2d 127. 
Implied reservation of water doctrine. When Federal 
Government withdraws its land from public domain and 
reserves it for a federal purpose, the government, by 
implication, reserves appurtenant water then unappro
priated to the extent needed to accomplish the purpose 
of the reservation. However, it reserves only that 
amount of water necessary to fulfill the purpose of the 
reservation, and no more. Cappaert v. U. S., 426 U.S. 
128, 96 S.Ct. 2062, 2071, 48 L.Ed.2d 523. 
Implied warranty. See Warranty. 
Import. A product manufactured in a foreign country, 
and then shipped to and sold in this country. See also 
Importa tion. 
Importation. The act of bringing goods and merchan
dise into a country from a foreign country. Cunard 
Steamship Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 
L.Ed. ·894. See Customs duties. 
Importer. Person who brings (i.e., imports) goods into 
country from foreign country and pays customs duties. 
See Customs duties. 
Import-export clause. Provision in U.S. Constitution, 
Art. I, § 10, cl. 2, to the effect that no state shall, 
without the consent of Congress, lay imposts or duties 
on imports or exports, except what may be absolutely 
necessary for executing its inspection laws. 
Import quota. A quantitative restriction on the impor
tation of an article into the United States. 19 U.S.C.A. 
§ 22.53 (a)(3)(C). The establishment of a quota is one of 
the remedies available to the President upon his deter
mination that an imported article threatens serious in
jury to a domestic industry. See also Dumping; Most 
favored nation clause. 
Imports clause. See Import-export clause. 
Importunity. Pressing solicitation; urgent request; ap
plication for a claim or favor which is urged with trou
blesome frequency or pertinacity. 
Impose. To levy or exact as by authority; to lay as a 
burden, tax, duty or charge. 
Imposition. An impost; tax; contribution. Unreason
able request or burden. Act of imposing. 
IMPOSSIBILITY 
Impossibility. That which, in the constitution and 
course of nature or the law, no person can do or per
form. 
Impossibility is of the following several sorts: 
An act is physically impossible when it is contrary to 
the course of nature. Such an impossibility may be 
either absolute, i.e., impossible in any case, (e.g., to stop 
earth rotation) or relative (sometimes called "impossibil
ity in fact"), i.e., arising from the circumstances of the 
case (e.g., for A. to make a payment to B., he being a 
deceased person). To the latter class belongs what is 
sometimes called "practical impossibility," which exists 
when the act can be done, but only at an excessive or 
unreasonable cost. An act is legally or juridically im
possible when a rule of law makes it impossible to do it; 
e.g., for A. to make a valid will before his majority. This 
class of acts must not be confounded with those which 
are possible, although forbidden by law, as to commit a 
theft. An act is logically impossible when it is contrary 
to the nature of the transaction, as where A. gives 
property to B. expressly for his own benefit, on condition 
that he transfers it to C. See also Legal impossibil ity. 
Impossibility of performance of contract. A doctrine 
under which a party to a contract is relieved of his or 
her duty to perform when performance has become 
impossible or totally impracticable (through no fault of 
the party). As a defense to nonperformance, such arises 
when performance is not possible because of, for exam
ple, destruction of subject of contract or death of person 
necessary for performance or where act contracted for 
has become illegal. The doctrine of "impossibility of 
performance" is an exception to the general rule that 
the promisor must either perform, or pay damages for 
his failure to perform, no matter how burdensome his 
performance has become because of unforeseen circum
stances. While the doctrine has evolved around various 
specific categories, one basic part of the doctrine is that 
the impossibility of performance must be objective rath
er than merely subjective. 
It is now recognized that a thing is impossible in legal 
contemplation when it is not practicable; and a thing is 
impracticable when it can only be done at an excessive 
and unreasonable cost. Transatlantic Fin. Corp. v. 
United States, 363 F.2d 312, 315. When the issue is 
raised, the court is asked to construct a condition of 
performance based on changed circumstances, a process 
which involves at least three reasonably definable steps. 
First, a contingency-something unexpected-must have 
occurred. Second, the risk of the unexpected occurrence' 
must not have been allocated either by agreement or by 
custom. Finally, occurrence of the contingency must 
have rendered performance commercially impracticable. 
Although impossibility or impracticability of perform
ance may arise in many different ways, the tendency 
has been to classify the cases into several categories. 
These are: 1) Destruction, deterioration or unavailabili
ty of the subject matter or the tangible means of per
formance; 2) Failure of the contemplated mode of deliv
ery or payment; 3) Supervening prohibition or preven
tion by law; 4) Failure of the intangible means of

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IMPOSSIBILITY 
performance and 5) Death or illness. The basic V.C.C. 
sections dealing with impossibility of performance are 
§§ 2- 613, 2-615, 2-616. See in this regard, Commer cial 
frustration; Commercial impracticability; Frustration of 
contract; Imp racticability. 
Impossible contract. One which the law will not hold 
binding upon the parties, because of the natural or legal 
impossibility of the performance by one party of that 
which is the consideration for the promise of the other. 
Impossibilium nulla obligatio est /impos�bil(i)y�m n:}l� 
obbgeysh(iy)ow est!. There is no obligation to do impos
sible things. 
Imposter. One who pretends to be somebody other than 
who he is, with intent to deceive; a faker, charlatan; 
mountebank. See also Impersonation; Personate. 
Impostor rule. Refers to a VCC Article 3 provision, 
§ 3-405(1)(a), that renders effective any person's in
dorsement of a check drawn payable to an impostor. 
Imposts. Taxes, duties, or impositions levied for divers 
reasons. Crew Levick Co. v. Commonwealth of Pennsyl
vania, 245 V.S. 292, 38 S.Ct. 126, 62 L.Ed. 295. Generic 
term for taxes. See Customs duties; Duty; Excise tax. 
Impotence. The inability to have sexual intercourse; it 
is not sterility. T. v. M., 100 N.J.Super. 530, 242 A.2d 
670, 673. Properly used of the male. Impotency as a 
ground for divorce means want of potentia copulandi or 
incapacity to consummate the marriage, and not merely 
incapacity for procreation. Reed v. Reed, 26 Tenn.App. 
690, 177 S.W.2d 26, 27. 
Impotentia excusat legem /imp�tensh(iy)� �kskyuwz�t 
liyj�m/. The impossibility of doing what is required by 
the law excuses from the performance. 
Impotentiam, property propter /pr6p�rtiy pr6pt�r 
imp�tensh(iy)�m/. A qualified property, which may sub
sist in animals ferce naturce on account of their inability, 
as where hawks, herons, or other birds build in a per
son's trees, or conies, etc., make their nests or burrows 
in a person's land, and have young there, such person 
has a qualified property in them till they can fly or run 
away, and then such property expires. 
Impound. To shut up stray animals or distrained goods 
in a pound. To seize and take into the custody of the 
law or of a court. Thus, a court will sometimes im
pound a suspicious document produced at a trial or a 
vehicle, funds, records, or other items used in commis
sion of a crime. The term, in its application to funds, 
means to take or retain in the custody of the law, and 
that obligation, as is an escrow, is to hold and deliver 
property intact. V.S. v. Louisiana, 446 V.S. 253, 100 
S.Ct. 1618, 1625, 64 L.Ed.2d 196. See also Confiscate; 
Forfeiture; Seizure; Sequestered account. 
Impound account. Accumulated funds (normally col
lected monthly from mortgagor or trustor) held by a 
lender for payment of taxes, insurance, or other periodic 
debts against real property. The lender pays the tax 
bill, premium, etc. from the accumulated funds when 
due. See also Escrow. 
756 
Impoundment. Action, or inaction, by President or 
other offices of V.S. Government, that precludes the 
obligation or expenditure of budget authority by Con
gress. 
Impracticability. The term "impracticability" in feder
al rule (Fed.R.Civ.P. 23) providing for class action if 
class is so numerous that joinder of all members is 
impracticable does not mean "impossibility" but only 
the difficulty of inconvenience of joining all members of 
the class. Vnion Pac. R. Co. v. Woodahl, D.C.Mont., 308 
F.Supp. 1002, 1008. 
Commercial impracticability. A broadened interpreta
tion of the doctrine of impossibility which holds that a 
party to a contract for the sale of goods will be relieved 
of his or her duty to perform when the premise (e.g., 
existence of certain goods) on which the contract was 
based no longer exists due to unforeseeable events. See 
V.C.C. § 2-615. See also Commercial frustration; Com
mercial impracticability; Impossibility. 
Imprescriptibility. The state or quality of being incapa
ble of prescription; not of such a character that a right 
to it can be gained by prescription. 
Imprescriptible rights. Such rights as a person may 
use or not, at pleasure, since they cannot be lost to him 
by the claims of another founded on prescription. 
Impression, case of first. One without a precedent; 
one presenting a wholly new state of facts; one involv
ing a question never before determined. 
Impressment. A power possessed by the English crown 
of taking persons or property to aid in the defense of the 
country, with or without the consent of the persons 
concerned. It is usually exercised to obtain hands for 
the royal ships in time of war, by taking seamen en
gaged in merchant vessels, but in former times impress
ment of merchant ships was also practiced. The admi
ralty issues protections against impressment in certain 
cases, either under statutes passed in favor of certain 
callings or voluntarily. 
Imprest fund. Petty cash fund used by business for 
small, routine expenses. 
Imprest money. Money paid on enlisting or impressing 
soldiers or sailors. 
Impretiabilis / �mpreshiyeyb�l�s/. Lat. Beyond price; 
invaluable. 
Imprimatur /impr�meyt�r/. Lat. Let it be printed. A 
license or allowance, granted by the constituted authori
ties, giving permission to print and publish a book. This 
allowance was formerly necessary, in England, before 
any book could lawfully be printed, and in some other 
countries is still required. 
Imprimere /imprim�riy/. To press upon; to impress or 
press; to imprint or print. 
Imprimery /imprim�riy/. In some of the ancient Eng
lish statutes this word is used to signify a printing-office, 
the art of printing, a print or impression.

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757 
Imprimis /impraym::ls/. Lat. In the first place; first of 
all. 
Imprison. To put in a prison; to put in a place of 
confinement. To confine a person, or restrain his liber
ty, in any way. 
Imprisonment. The detention of a person contrary to 
his will. The act of putting or confining a person in 
prison. The restraint of a person's personal liberty; 
coercion exercised upon a person to prevent the free 
exercise of his powers of locomotion. It is not a neces
sary part of the definition that the confinement should 
be in a place usually appropriated to that purpose; it 
may be in a locality used only for the specific occasion; 
or it may take place without the actual application of 
any physical agencies of restraint (such as locks or bars), 
as by verbal compulsion and the display of available 
force. Every confinement of the person is an "imprison
ment," whether it be in a prison, or in a private house, 
or even by forcibly detaining one in the public streets. 
Any unlawful exercise or show of force by which person 
is compelled to remain where he does not wish to be. 
McKendree v. Christy, 29 1ll.App.2d 866, 172 N.E.2d 380, 
381. See also Sol itary confinement. 
False imprisonment. The unlawful arrest or detention 
of a person without warrant, or by an illegal warrant, or 
a warrant illegally executed, and either in a prison or a 
place used temporarily for that purpose, or by force and 
constraint without confinement. False imprisonment 
consists in the unlawful detention of the person of 
another, for any length of time, whereby he is deprived 
of his personal liberty. Dupler v. Seubert, 69 Wis.2d 
626, 230 N.W.2d 626, 631. The unlawful detention of 
the occupant of an automobile may be accomplished by 
driving so rapidly that he cannot alight. 
A person commits a misdemeanor if he knowingly 
restrains another unlawfully so as to interfere substan
tially with his liberty. Model Penal Code, § 212.3. 
The tort of "false imprisonment" is the nonconsensu
aI, intentional confinement of a person, without lawful 
privilege, for an appreciable length of time, however 
short. City of Newport Beach v. Sasse, 9 Cal.App.3d 
803, 88 Cal.Rptr. 476, 480. Restatement, Second, Torts 
§ 35. 
See also False arrest; False imprisonment. 
Impristi limpristay /. Adherents; followers. Those who 
side with or take the part of another, either in his 
defense or otherwise. 
Improbable. Unlikely to be true, or to occur, not to be 
readily believed. Johnson v. Tregle, La.App., 8 So.2d 
755, 758. 
Improper. Not suitable; unfit; not suited to the charac
ter, time, and place. Godbey v. Godbey, 70 Ohio App. 
455, 44 N.E.2d 810, 813. Not in accordance with fact, 
truth, or right procedure and not in accord with proprie
ty, modesty, good taste, or good manners. Landry v. 
Daley, D.C.Ill., 280 F.Supp. 968, 970. 
Improper cumulation of actions. In common law 
pleading, an attempt to join in one proceeding inconsist-
IMPROVEMENT BONDS 
ent causes of action. Toms v. Nugent, La.App., 12 So.2d 
713, 715. This is permitted under Rule of Civil Proce
dure 8(e)(2). 
Improper feuds. In old English law, these were deriva
tive feuds; as, for instance, those that were originally 
bartered and sold to the feudatory for a price, or were 
held upon base or less honorable services, or upon a rent 
in lieu of military service, or were themselves alienable, 
without mutual license, or descended indifferently to 
males or females. 
Improper influence. Undue influence (q.v.). 
Improperly obtained evidence. See Il legally obtained 
evidence. 
Impropriate rector. In ecclesiastical law, commonly 
signifies a lay rector as opposed to a spiritual rector; 
just as impropriate tithes are tithes in the hands of a lay 
owner, as opposed to appropriate tithes, which are tithes 
in the hands of a spiritual owner. 
Impropriation. In ecclesiastical law, the annexing an 
ecclesiastical benefice to the use of a lay person, wheth
er individual or corporate, in the same way as appropria
tion is the annexing of any such benefice to the proper 
and perpetual use of some spiritual corporation, wheth
er sole or aggregate, to enjoy forever. 
Improve. To meliorate, make better, to increase the 
value or good qualities of, mend, repair, as to "improve" 
a street by grading, parking, curbing, paving, etc. 
Improved land. Real estate whose value has been in
creased by landscaping and addition of sewers, roads, 
utilities, and the like. 
Improved value. Appraisal term encompassing the to
tal value of land and improvements rather than the 
separate values of each. 
Improvement. A valuable addition made to property 
(usually real estate) or an amelioration in its condition, 
amounting to more than mere repairs or replacement, 
costing labor or capital, and intended to enhance its 
value, beauty or utility or to adapt it for new or further 
purposes. Generally has reference to buildings, but may 
also include any permanent structure or other develop
ment, such as a street, sidewalks, sewers, utilities, etc. 
An expenditure to extend the useful life of an asset or to 
improve its performance over that of the original asset. 
Such expenditures are capitalized as part of the asset's 
cost. Contrast with Maintenance and Repair. See also 
Betterment; Internal improvements; Leasehold improve
ments. 
In the law of patents, an addition to, or modification 
of, a previous invention or discovery, intended or 
claimed to increase its utility or value. Steiner Sales 
Co. v. Schwartz Sales Co., C.C.A. Utah, 98 F.2d 999, 1010. 
It includes two necessary ideas: the idea of a complete 
and practical operative art or instrument and the idea of 
some change in such art or instrument not affecting its 
essential character but enabling it to produce its appro
priate results in a more perfect or economical manner. 
Improvement bonds. See Bond.

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IMPROVIDENCE 
Improvidence. As used in a statute excluding one 
found incompetent to execute the duties of an adminis
trator by reason of improvidence, means that want of 
care and foresight in the management of property which 
would be likely to render the estate and effects of the 
intestate unsafe, and liable to be lost or diminished in 
value, in case the administration should be committed to 
the improvident person. 
Improvidently. A judgment, decree, rule, injunction, 
etc., when given or rendered without adequate consider
ation by the court, or without proper information as to 
all the circumstances affecting it, or based upon a mis
taken assumption or misleading information or advice, 
is sometimes said to have been "improvidently" given or 
issued. 
Impruiare limpruwiyeriy/. In old English law, to im
prove land. Impruiamentum, the improvement so made 
of it. 
Impubes limpyuwbiyz /. Lat. In the civil law, a minor 
under the age of puberty; a male under fourteen years 
of age; a female under twelve. 
Impulse. Sudden urge or inclination; thrusting or im
pelling force within a person. See also Insanity; Irresisti
ble impulse. 
Impunitas continuum affectum tribuit delinquendi 
limpyuwn;}tres k;}ntinyuw;}m ;}fekt;}m tribyuw;}t 
del;}IJkwenday I. Impunity confirms the disposition to 
commit crime. 
Impunitas semper ad deteriora invitat limpyuwn;}tres 
semp;}r red d;}tiriyor;} ;}nvayt;}t/. Impunity always in
vites to greater crimes. 
Impunity. Exemption or protection from penalty or 
punishment. See also Imm unity. 
Imputability. The state or condition rendering one 
chargeable for an act. Liability or responsibility for 
conduct or omission. See Liability. 
Imputatio limpy;}teysh(iy)ow/. Lat. In the civil law, 
legal liability. 
Imputation of payment. In the civil law, the applica
tion of a payment made by a debtor to his creditor. 
Imputed. As used in legal phrases, this word means 
attributed vicariously; that is, an act, fact, or quality is 
said to be "imputed" to a person when it is ascribed or 
charged to him, not because he is personally cognizant 
of it or responsible for it, but because another person is, 
over whom he has control or for whose acts or knowl
edge he is responsible. See also Estoppel. 
Imputed cost. See Cost. 
Imputed income. See Income. 
Imputed interest. See Interest. 
Imputed knowledge. This phrase is sometimes used as 
equivalent to "implied notice," i.e., knowledge attributed 
or charged to a person because the facts in question 
were open to his discovery and it was his duty to inform 
himself as to them. In law of agency, notice of facts 
758 
brought to the attention of an agent within the scope of 
his authority or employment is chargeable to his princi
pal in most cases. See Imputed notice. 
Imputed negligence. The negligence of one person may 
be chargeable to another depending upon the relation
ship of the parties, as for example, the negligence of an 
agent acting within the scope of his employment is 
chargeable to the principal. Negligence which is not 
directly attributable to the person himself, but which is 
the negligence of a person who is in privity with him, 
and with whose fault he is chargeable. See also Negli
gence. 
Imputed notice. Information as to a given fact or 
circumstance charged or attributed to a person, and 
affecting his rights or conduct on the ground that actual 
notice was given to some person whose duty was to 
report it to the person to be affected, as, his agent or his 
attorney of record. See also Notice. 
In. In the law of real estate, this preposition is used to 
denote the fact of seisin, title, or possession, and serves 
as an elliptical expression for some such phrase as "in 
possession," or as an abbreviation for "intitled" or "in
vested with title." 
An elastic preposition in other cases, expressing rela
tion of presence, existence, situation, inclusion, action, 
etc.; inclosed or surrounded by limits, as in a room; also 
meaning for, in and about, on, within etc.; and is synon
ymous with expressions "in regard to", "respecting", 
"with respect to", and "as is". 
In action. Attainable or recoverable by action; not in 
possession. A term applied to property of which a party 
has not the possession, but only a right to recover it by 
action. Things in action are rights of personal things, 
which nevertheless are not in possession. See Chose in 
action. 
Inadequate. Insufficient; disproportionate; lacking in 
effectiveness or in conformity to a prescribed standard 
or measure. 
Inadequate consideration. One not adequate or equal 
in value to the thing conveyed. Farrell v. Third Nat. 
Bank, 20 Tenn.App. 540, 101 S.W.2d 158, 163. 
Inadequate damages. See Damages. 
Inadequate price. A term applied to indicate the want 
of a sufficient consideration for a thing sold, or such a 
price as would ordinarily be entirely incommensurate 
with its intrinsic value. 
Inadequate remedy at law. Within the meaning of the 
rule that equity will not entertain a suit if there is an 
adequate remedy at law, this does not mean that there 
must be a failure to collect money or damages at law, 
but the remedy is considered inadequate if it is, in its 
nature and character, unfitted or not adapted to the end 
in view, as, for instance, when the relief sought is 
preventive (e.g. injunction) rather than compensatory. 
Cruickshank v. Bidwell, 176 U.S. 73, 20 S.Ct. 280, 44 
L.Ed. 377. Compare Adequate remedy.

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759 
Inadmissible. That which, under the established rules 
of law, cannot be admitted or received; e.g., parol evi
dence to contradict a written contract; evidence ob
tained from illegal search and seizure; certain types of 
hearsay evidence. 
In adversum lin redv�rs;}m/. Against an adverse, un
willing, or resisting party. "A decree not by consent, 
but in adversum." 
Inadvertence. Heedlessness; lack of attention; want of 
care; carelessness; failure of a person to pay careful 
and prudent attention to the progress of a negotiation or 
a proceeding in court by which his rights may be affect
ed. Used chiefly in statutory and rule enumerations of 
the grounds on which a judgment or decree may be 
vacated or set aside; as, "mistake, inadvertence, sur
prise, or excusable neglect." Fed.R. Civil P. 60(b). State 
ex reI. Regis v. District Court of Second Judicial Dist. in 
and for Silver Bow County, 102 Mont. 74, 55 P.2d 1295, 
1298. 
In redificatio lin iyd;}f;}keysh(iy)ow/. Lat. In the civil 
law, building on another's land with one's own materi
als, or on one's own land with another's materials. 
In requali jure lin ;}kweylay juriy/. In equal right; on 
an equality in point of right. 
In requali jure melior est conditio possidentis lin 
;}kweylay juriy miyliy;}r est k;}ndish(iy)ow p;}sidi
yen�s/. In [a case of] equal right the condition of the 
party in possession is the better. 
In requali manu lin ;}kweylay mrenyuw/. In equal hand; 
held equally or indifferently between two parties. 
Where an instrument was deposited by the parties to it 
in the hands of a third person, to keep on certain 
conditions, it was said to be held in cequali manu. 
In requa manu lin iykw;} mrenyuw I. In equal hand. 
Inalienable I ineyl(i)y;}n;}b;}l I . Not subject to alienation; 
the characteristic of those things which cannot be 
bought or sold or transferred from one person to anoth
er, such as rivers and public highways, and certain 
personal rights; e.g., liberty. 
Inalienable interests. Type of interest in property 
which cannot be sold or traded. 
Inalienable rights. Rights which are not capable of 
being surrendered or transferred without the consent of 
the one possessing such rights; e.g., freedom of speech or 
religion, due process, and equal protection of the laws. 
Morrison v. State, Mo.App., 252 S.W.2d 97, 101. See Bill 
of rights. 
In alieno solo lin reliyiynow sowlow/. In another's land. 
In aUo loco lin eyl(i)yow lowkow/. In another place. 
In alta proditione nullus potest esse accessorius sed 
principalis solummodo lin relt;} pr;}dishiyowniy n�l;}s 
powt;}st esiy reks;}soriy;}s sed prins;}peybs sowbmow
dow I. In high treason no one can be an accessory but 
only principal. 
INAUGURATION 
In alternativis electio est debitoris lin olt�rn;}tl:iyv;}s 
;}leksh(iy)ow est deb;}tor;}s/. In alternatives the debtor 
has the election. 
In ambigua voce legis ea potius accipienda est signi
ficatio qure vitio caret, prresertim cum etiam volun
tas legis ex hoc colligi possit lin rembigyuw;} vowsiy 
liyj;}s iy;} powsh(iy);}s ;}ksipiyend;} est sign;}f;}keysh(iy)ow 
kwiy vish(iy)ow ker;}t, pr;}s�rd;}m k�m esh(iy);}m v;}l�ntres 
liyj;}s eks hok kol;}jay pos;}t/. In an ambiguous expres
sion of law, that signification is to be preferred which is 
consonant with equity, especially when the spirit of the 
law can be collected from that. 
In ambiguis casibus semper prresumitur pro rege lin 
rembigyuw;}s keys;}b;}s semp;}r pr;}z(y)uwm;}t;}r prow 
riyjiy I. In doubtful cases the presumption is always in 
favor of the king. 
In ambiguis orationibus maxime sententia spectanda 
est ejus qui eas protulisset lin rembigyuw;}s ;}reysh
iyown;}b;}s mreks;}miy sentensh(iy);} spektrend;} est 
iyj;}s kway iy;}s prowt;}lis;}t/. In ambiguous expressions, 
the intention of the person using them is chiefly to be 
regarded. 
In ambiguo lin rembigyuwow/. In doubt. 
In ambiguo sermone non utrumque dicimus sed id 
duntaxat quod volumus lin rembigyuwow s;}rmowniy 
non yuwtr�mkwiy dis;}m;}s sed id d�ntreks;}t kwod 
vol(y);}m;}s/. When the language we use is ambiguous, 
we do not use it in a double sense, but in the sense in 
which we mean it. 
In anglia non est interregnum lin rel)gliy;} non est 
int;}regn;}m/. In England there is no interregnum. 
In aperta luce lin ;}P�rt;} l(y)uwsiy I. In open daylight; 
in the day-time. 
In apicibus juris lin ;}pis;}b;}s jur;}s/. Among the subtle
ties or extreme doctrines of the law. 
In arbitrium judicis lin arbitriy;}m juwd;}s;}s/. At the 
pleasure of the judge. 
In arcta et salva custodia lin arkt;} et srelv;} k;}s
towd(i)y;}I . In close and safe custody. 
In articulo lin artiky;}low/. In a moment; immediately. 
In articulo mortis lin artiky;}low mort;}s/. In the arti
cle of death; at the point of death. 
In atrocioribus delictis punitur affectus licet non 
sequatur effectus lin ;}trows(h)iyor;}b;}s d;}likt;}s 
pyuwn;}t;}r ;}fekt;}s lays;}t non s;}kweyt;}r ;}fekt;}s/. In 
more atrocious crimes the intent is punished, though an 
effect does not follow. 
Inauguration. The act of installing or inducting into 
office with formal ceremonies, as the coronation of a 
sovereign, the inauguration of a president or governor, 
or the consecration of a prelate. A word applied by the 
Romans to the ceremony of dedicating a temple, or 
raising a man to the priesthood, after the augurs had 
been consulted.

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IN AUTRE DROIT 
In autre droit lin owtr;) droyt/. L. Fr. In another's 
right. As representing another. An executor, adminis
trator, or trustee sues in autre droit. 
In banco See En banco 
In banco lin breukow/. In bank; in the bench. A term 
applied to proceedings in the court in bank, as distin
guished from the proceedings at nisi prius. Also, in the 
English court of common bench. See Banc; En banco 
In being. In existence or life at a given moment of time, 
as, in the phrase "life or lives in being" in the rule 
against perpetuities. An unborn child may, in some 
circumstances be considered as "in being." 
In blank. A term applied to the indorsement of a bill or 
note where it consists merely of the indorser's name, 
without restriction to any particular indorsee. U.C.C. 
§ 3-204(2). 
Inblaura linblohr;)/. In old records, profit or product of 
ground. 
Inboard. In maritime law, and particularly with refer
ence to the stowage of cargo, this term is contrasted 
with "outboard." It does not necessarily mean under 
deck, but is applied to a cargo so piled or stowed that it 
does not project over the "board" (side or rail) of the 
vessel. 
In bonis lin bOwn;)s/. Among the goods or property; in 
actual possession. In bonis defuncti, among the goods of 
the deceased. 
Inborh linborg/. In Saxon law, a security, pledge, or 
hypotheca, consisting of the chattels of a person unable 
to obtain a personal "borg," or surety. 
Inbound common. An uninclosed common, marked 
out, however, by boundaries. 
In bulk. As a whole; as an entirety, without division 
into items or physical separation in packages or parcels. 
See also Bulk. 
Inc. Incorporated. 
In cahoots lin k;)huwts/. Jointly interested in property; 
or, common participants in enterprise or illegal act. 
In camera lin krem(;)r;)/. In chambers; in private. A 
judicial proceeding is said to be heard in camera either 
when the hearing is had before the judge in his private 
chambers or when all spectators are excluded from the 
courtroom. See also In chambers. 
In camera inspection. Under certain circumstances, a 
trial judge may inspect a document which counsel 
wishes to use at trial in his chambers before ruling on 
its admissibility or its use; e.g. grand jury testimony. 
See, e.g., Fed.R.Crim. P. 14. 
In camera proceedings. Trial or hearing held in a 
place not open to the public such as the judge's lobby or 
chambers. 
Incapacitated person. Any person who is impaired by 
reason of mental illness, mental deficiency, physical 
illness or disability, advanced age, chronic use of drugs, 
chronic intoxication, or other cause (except minority) to 
760 
the extent that he lacks sufficient understanding or 
capacity to make or communicate responsible decisions 
concerning his person. Uniform Probate Code, § 5-101. 
See also Incapacity. 
Incapacity. Want of legal, physical, or intellectual ca
pacity; want of power or ability to take or dispose; want 
of legal ability to act. Inefficiency; incompetency; lack 
of adequate power. The quality or state of being incapa
ble, want of capacity, lack of physical or intellectual 
power, or of natural or legal qualification; inability, 
incapability, disability, incompetence. Bole V. Civil City 
of Ligonier, 130 Ind.App. 362, 161 N.E.2d 189, 194. See 
also Incom petency; Partial incapacity. 
Legal incapacity. This expression implies that the per
son in view has the right vested in him, but is prevented 
by some impediment from exercising it; as in the case of 
minors, committed persons, prisoners, etc. See Civil 
death; Mino rity. 
Total incapacity. In workers' compensation acts, such 
disqualification from performing the usual tasks of a 
worker that he or she . cannot procure and retain em
ployment. Incapacity for work is total not only so long 
as the injured employee is unable to do any work of any 
character, but also while he remains unable, as a result 
of his injury, either to resume his former occupation or 
to procure remunerative employment at a different oc
cupation suitable to his impaired capacity. Such period 
of total incapacity may be followed by a period of partial 
incapacity, during which the injured employee is able 
both to procure and to perform work at some occupation 
suitable to his then-existing capacity, but less remunera
tive than the work in which he was engaged at the time 
of his injury. That situation constitutes "partial inca
pacity." Synonymous with "total disability." See Dis
ability. 
In capita lin krep;)t;)/. To the heads; by heads or polls. 
Persons succeed to an inheritance in capita when they 
individually take equal shares. So challenges to individ
ual jurors are challenges in capita, as distinguished 
from challenges to the array. See also Challenge; Per 
capita. 
In capite lin krep;)tiy/. In chief. Tenure in capite was a 
holding directly from the king. 
Incarceration linkars;)reysh;)n/. Imprisonment; con
finement in a jail or penitentiary. See Imprisonment. 
In case. If; in the event. 
In casu extremre necessitatis omnia sunt communia 
lin keys(y)uw ;)kstriymiy n;)ses;)teyt;)s omniy;) s,)nt 
bmyuwn(i)y;) /. In cases of extreme necessity, every
thing is in common. 
In casu proviso lin keys(y)uw pr;)vayzow/. In a (or the) 
case provided. In tali casu editum et pro visum, in such 
case made and provided. 
Incaute factum pro non facto habetur linkotiy frekt;)m 
prow non frektow h;)biyt;)r/. A thing done unwarily (or 
unadvisedly) will be taken as not done.

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761 
Incendiary linsEmd(i)y�riy/. A house-burner; one guilty 
of arson; one who maliciously and willfully sets another 
person's building on fire. 
Incendium rere alieno non exuit debitorem linsen
d(i)y�m lrlY reliyiynow non egzyuw�t deb�
t6r�ml . A fire does not release a debtor from his debt. 
Incentive pay plans. Compensation programs whereby 
wages increase as productivity increases above a set 
standard or base. 
Incentive stock option. An option granted to an em
ployee of a corporation to purchase stock of such corpo
ration at a specified price for a specified period of time. 
Generally, there are no tax consequences until such 
time as the stock is sold. 
Inception. Commencement; opening; initiation. The 
beginning of the operation of a contract or will, or of a 
note, mortgage, lien, etc.; the beginning of a cause or 
suit in court. Oriental Hotel Co. v. Griffiths, 88 Tex. 
574, 33 S.W. 652. 
Incertre personre lins:)rtiy p�rs6wniy/. Uncertain per
sons, as posthumous heirs, a corporation, the poor, a 
juristic person, or persons who cannot Qe ascertained 
until after the execution of a will. 
Incerta pro nullis habentur /ins:)rt� prow n:)l�s 
h�bent�r/. Uncertain things are held for nothing. 
Incerta quantitas vitiat actum lins:)rt� kw6nt�tces 
vishiy�t rekt�m/. An uncertain quantity vitiates the 
act. 
Incest. The crime of sexual intercourse or cohabitation 
between a man and woman who are related to each 
other within the degrees wherein marriage is prohibited 
by law. 
A person is guilty of incest, a felony of the third 
degree, if he knowingly marries or cohabits or has 
sexual intercourse with an ancestor or descendant, a 
brother or sister of the whole or half blood [or an uncle, 
aunt, nephew or niece of the whole blood]. "Cohabit" 
means to live together under the representation or ap
pearance of being married. The relationships referred 
to herein includes blood relationships without regard to 
legitimacy, and relationship of parent and child by adop
tion. Model Penal Code, § 230.2. 
Incestuosi linsestyuw6wsay/. Those offspring incestu
ously begotten. 
Incestuous adultery. The elements of this offense are 
that defendant, being married to one person, has had 
sexual intercourse with another related to the defendant 
within the prohibited degrees. 
Incestuous bastards. Incestuous bastards are those 
who are produced by the illegal connection of two per
sons who are relations within the degrees prohibited by 
law. 
Inch. A measure of length, containing one-twelfth part 
of a foot; originally supposed equal to three barleycorns. 
Its metric equivalent is 2.540 centimeters. 
INCHOATE DOWER 
Miner's inch. A unit of measurement of the rate of 
discharge of water, appearing in deeds to water rights 
and fixed by statute in most Western States, being the 
amount of water passing through a specified orifice 
under a prescribed pressure. 
1 cubic ft. per sec. = 50 miner's inches (Idaho, Kansas, 
Nebraska, N. Mexico, N. Dakota, S. Dakota) 
1 cubic ft. per sec. = 40 miner's inches (Arizona, Cali
fornia, Montana, Oregon) 
1 cubic ft. per sec. = 38.4 miner's inches (Colorado) 
1 miner's inch = .02 cubic ft. per sec. (Idaho, Kansas, 
Nebraska, N. Mexico, N. Dakota, S. Dakota) 
1 miner's inch = .025 cubic ft. per sec. (Arizona, Cali
fornia, Montana, Oregon) 
1 miner's inch = .026 cubic ft. per sec. (Colorado) 
In chambers. While a common meaning of word "cham
bers" is room adjacent to courtroom in which judge 
performs the duties of his office when court is not in 
session, it also connotes fact that judicial action was 
taken when court was not in session. Thus, when judge 
performs judicial act while court is not in session in the 
matter acted upon, it is said that he acted "in cham
bers" whether the act was performed in the judge's 
chambers, the library, at his home, or elsewhere. Mor
ris v. State, 573 P.2d 11 30, 11 32, 2 Kan.App.2d 34. See 
also In camera. 
In charge of. Means in the care or custody of, under 
control of, or intrusted to the management or direction 
of. See Guardian; Ward. 
Inchartare linkarteriy/. To give, or grant, and assure 
anything by a written instrument. 
In chief. Principal; primary; directly obtained. A term 
applied to the evidence obtained from a witne�s upon his 
examination in court by the party producing him; i.e. 
direct examination of witness. 
Tenure in chief, or in capite, is a holding directly of 
the king or chief lord. 
Inchmaree clause. In marine insurance, provision in 
policy protecting one from perils resulting from negli
gence of master, or from any latent defect in machinery 
or hull, charterer, mariners, engineers and pilots. 
Inchoate link6w�t/. Imperfect; partial; unfinished; be
gun, but not completed; as a contract not executed by 
all the parties. State ex reI. McCubbin v. McMillian, 
Mo.App., 349 S.W.2d 453, 462. 
Inchoate crimes. An incipient crime which generally 
leads to another crime. An assault has been referred to 
as an inchoate battery, though the assault is a crime in 
and of itself. The Model Penal Code classifies attempts, 
solicitation and conspiracy as such. §§ 5.01-5.03. 
Inchoate dower. A wife's interest in the lands of her 
husband during his life, which may become a right of 
dower upon his death. A contingent claim or possibility 
of acquiring dower by outliving husband and arises, not 
out of contract, but as an institution of law constituting 
a mere chose in action incapable of transfer by separate 
grant but susceptible of extinguishment, which is effect-

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INCHOATE DOWER 
ed by wife joining with husband in deed, which operates 
as release or satisfaction of interest and not as convey
ance. 
Inchoate instrument. Instruments which the law re
quires to be registered or recorded are said to be "incho
ate" prior to registration, in that they are then good 
only between the parties and privies and as to persons 
having notice. 
Inchoate interest. An interest in real estate which is 
not a present interest, but which may ripen into a 
vested estate, if not barred, extinguished, or divested. 
Inchoate lien. The lien of a judgment, from the day of 
its entry, subject to be defeated by its vacation, becom
ing a consummate lien if the motion for a new trial is 
thereafter overruled; such lien then relating back to the 
original entry of the judgment. 
Inchoate right. In patent law, the right of an inventor 
to his invention while his application is pending which 
matures as "property" when the patent issues. Mullins 
Mfg. Co. v. Booth, C.C.A.Mich., 125 F.2d 660, 664. 
Incident. Something dependent upon, appertaining or 
subordinate to, or accompanying something else of 
greater or principal importance, something arising or 
resulting from something else of greater or principal 
importance. Mola v. Reiley, 100 N.J.Super. 343, 241 
A.2d 861, 864. Used both substantively and adjectively 
of a thing which, either usually or naturally and insepa
rably, depends upon, appertains to, or follows another 
that is more worthy. Used as a noun, it denotes any
thing which inseparably belongs to, or is connected with, 
or inherent in, another thing, called the "principal". 
Also, less strictly, it denotes anything which is usually 
connected with another, or connected for some purposes, 
though not inseparably. Thus, the right of alienation is 
incident to an estate in fee-simple, though separable in 
equity. 
Incident of ownership. An element of ownership or 
degree of control over a life insurance policy. The 
retention by an insured of an incident of ownership in a 
life insurance policy will cause the policy proceeds to be 
included in the insured's gross estate upon death. I.R.C. 
§ 2042(2). 
In estate taxation, if decedent retains control or right 
in property, as for example the right to change benefi
ciary of insurance policy, the property falls into his 
gross estate for estate tax purposes. In re Lumpkin's 
Estate, C.A.Tex., 474 F.2d 1092. 
Incidental. Depending upon or appertaining to some
thing else as primary; something necessary, appertain
ing to, or depending upon another which is termed the 
principal; something incidental to the main purpose. 
Davis v. Pine Mountain Lumber Co., 273 C.A.2d 218, 77 
Cal.Rptr. 825. 
Incidental beneficiary. Person who may derive benefit 
from performance of contract, though he is neither the 
promisee nor the one to whom performance is to be 
rendered. Salzman v. Holiday Inns, Inc., 48 A.D.2d 258, 
369 N.Y.S.2d 238, 242. A person who is a donee or 
762 
creditor (third party) beneficiary of a contract is enti
tled, in certain circumstances, to enforce such contract. 
Since there will often be many people indirectly or even 
directly benefitted by any given contractual perform
ance, the term "incidental beneficiary" is used to de
scribe those persons who would benefit by the perform
ance but who were not intended by the parties to be 
benefitted and who thus cannot enforce the contract. 
A person is not a beneficiary of a trust if the settlor 
does not manifest an intention to give him a beneficial 
interest, although he may incidentally benefit from the 
performance of the trust. Restatement, Second, Trusts, 
§ 126. 
Incidental damages. See Damages. 
Incidental powers. This term, within the rule that a 
corporation possesses only those powers which its char
ter confers upon it, either expressly or as incidental to 
its existence, means such powers as are directly and 
immediately appropriate to the execution of the powers 
expressly granted and exist only to enable the corpora
tion to carry out the purpose of its creation. 
Incident to arrest. A search can be "incident to arrest" 
only if it is substantially contemporaneous with the 
arrest and is confined to the immediate vicinity of the 
arrest. James v. State of La., La., 382 U.S. 36, 86 S.Ct. 
151, 15 L.Ed.2d 30. See also Search incident to arrest. 
Incidental to employment. A risk is "incidental to 
employment" within Worker's Compensation Act, when 
it belongs to or is connected with what a worker has to 
do in fulfilling the duties of his or her employment. 
Incidental use. In zoning, use of premises which is 
dependent on or affiliated with the principal use of such 
premises. Needham v. Winslow Nurseries, Inc., 330 
Mass. 95, 111 N.E.2d 453. 
Incidere linsit:)riy/. Lat. In the civil and old English 
law, to fall into; to fall out; to happen; to come to pass. 
To fall upon or under; to become subject or liable to. 
Incidere in legem, to incur the penalty of a law. 
Incipitur linsip:)t:)r/. Lat. It is begun; it begins. In 
old practice, when the pleadings in an action at law, 
instead of being recited at large on the issue-roll, were 
set out merely by their commencements, this was de
scribed as entering the incipitur; i.e., the beginning. 
Incite linsayt/. To arouse; urge; provoke; encourage; 
spur on; goad; stir up; instigate; set in motion; as, to 
"incite" a riot. Also, generally, in criminal law to 
instigate, persuade, or move another to commit a crime; 
in this sense nearly synonymous with "abet." 
Inciter. In criminal law, an aider or abettor; an accesso
ry. 
Incivile linsiv:)liy/. Lat. Irregular; improper; out of 
the due course of law. 
Incivile est, nisi tota lege perspecta, una aliqua parti. 
cula ejus proposita, judicare, vel respondere 
linsiv:)liy est, naysay tOwt:) liyjiy p:)rspekt:), yuwn:) 
rel.,kw., partiky.,l., iyj.,s pr.,p6z.,�, juwd.,keriy, vel . 
r:)spondiriy/. It is improper, without looking at t he

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763 
whole of a law, to give judgment or advice, upon a view 
of any one clause of it. 
Incivile est, nisi tota sententia inspecta, de aliqua 
parte judicare linsiv:)liy est, miysay towt:) s:)ntimsh(iy):) 
inspek�, diy rebkw:) partiy juwd:)keriy I. It is irregular, 
or legally improper, to pass an opinion upon any part of 
a sentence, without examining the whole. 
In civilibus ministerium excusat, in criminalibus non 
item lin s:)vibb:)s min:)stiriy:)m :)kskyuwz:)t, in 
krim:)nEflybb:)s non ayt:)m/. In civil matters agency (or 
service) excuses, but not so in criminal matters. 
Incivism lins:)viz:)m/. Unfriendliness to the state or 
government of which one is a citizen. 
In claris non est locus conjecturis I in kler:)s non est 
lowk:)s konj:)kt(y)ur:)sl. In things obvious there is no 
room for conjecture. 
Inclausa linkloz:)/. In old records, a home close or 
inclosure near the house. 
Inclose. To surround; to encompass; to bound; fence, 
or hem in, on all sides. To shut up. 
Inclosed lands. Lands which are actually inclosed and 
surrounded with fences. 
Inclosure. In old English law, act of freeing land from 
rights of common, commonable rights, and generally all 
rights which obstruct cultivation and the productive 
employment of labor on the soil. 
Land surrounded by some visible obstruction. An 
artificial fence around one's estate. See Close. 
Include. (Lat. Inclaudere, to shut in, keep within.) To 
confine within, hold as in an inclosure, take in, attain, 
shut up, contain, inclose, comprise, comprehend, em
brace, involve. Term may, according to context, express 
an enlargement and have the meaning of and or in 
addition to, or merely specify a particular thing already 
included within general words theretofore used. "In
cluding" within statute is interpreted as a word of 
enlargement or of illustrative application as well as a 
word of limitation. Premier Products Co. v. Cameron, 
240 Or. 123, 400 P.2d 227, 228. 
Included offense. In criminal law, a crime which is 
part of another crime; e.g. included in every murder is 
assault and battery. One which is established by proof 
of the same or less than all of the facts, or a less 
culpable mental state, or both, than that which is re
quired to establish commission of offense charged. Peo
ple v. Lyons, 26 lll.App.3d 193, 324 N.E.2d 677, 680. To 
be an "included offense", all elements of the lesser 
offense must be contained in the greater offense, the 
greater containing certain elements not contained in the 
lesser. Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407, 
409. It is impossible to commit a greater offense with
out necessarily committing included offense. State v. 
Muise, App., 103 N.M. 382, 707 P.2d 1192, 1202. The 
defendant may be found guilty of an offense necessarily 
included in the offense charged. Fed.R.Crim.P. 31. 
Inclusionary approach. Under the "inclusionary ap
proach", evidence of prior crimes, wrongs, or acts is 
admissible for any purpose other than to show defen
dant's criminal propensity, as long as it is relevant to 
INCOME 
some disputed issue in trial, and satisfies probative-prej
udice balancing test. U.S. v. Brennan, C.A.N.Y., 798 
F.2d 581, 589. 
Inclusio unius est exclusio alterius linkluwzh(iy)ow 
y:)nay:)s est :)kskluwzh(iy)ow olt:)ray:)s/. The inclusion 
of one is the exclusion of another. The certain designa
tion of one person is an absolute exclusion of all others. 
Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325. 
This doctrine decrees that where law expressly describes 
particular situation to which it shall apply, an irrefuta
ble inference must be drawn that what is omitted or 
excluded was intended to be omitted or excluded. Kevin 
McC v. Mary A, 123 Misc.2d 148, 473 N.Y.S.2d 11 6, 11 8. 
Inclusive. Embraced; comprehended; comprehending 
the stated limits or extremes. Opposed to "exclusive." 
Inclusive survey. In land law, one which includes with
in its boundaries prior claims excepted from the compu
tation of the area within such boundaries and excepted 
in the grant. 
Incognito. Status of person who appears or travels 
without disclosing his true identity. 
Incola. Lat. In the civil law, an inhabitant; a dweller 
or resident. Properly, one who has transferred his 
domicile to any country. 
Incolas domicilium facit liI]k:)l:)s dom:)sil(i)y:)m feys:)t/. 
Residence creates domicile. 
Income. The return in money from one's business, la
bor, or capital invested; gains, profits, salary, wages, etc. 
The gain derived from capital, from labor or effort, or 
both combined, including profit or gain through sale or 
conversion of capital. Income is not a gain accruing to 
capital or a growth in the value of the investment, but is 
a gain, a profit, something of exchangeable value, pro
ceeding from the property, severed from the capital, 
however invested or employed, and coming in, being 
derived, that is, received or drawn by the recipient for 
his separate use, benefit, and disposal. Goodrich v. 
Edwards, 255 U.S. 527, 41 S.Ct. 390, 65 L.Ed. 758. The 
true increase in amount of wealth which comes to a 
person during a stated period of time. That which 
comes in or is received from any business, or investment 
of capital, without references to outgoing expenditures. 
City of Fitzgerald v. Newcomer, 162 Ga.App. 646, 291 
S.E.2d 766, 768. 
See also Allocation of income; Blocked income; Clear 
reflection of income; Constructive receipt of income; De
ferred income; Earned income; Earnings; Fixed income; 
Gross income; Income averaging; Income basis; Income 
in respect of decedent; Income tax; Net income; Net 
operating income; Personal income; Profit; Real income; 
Split income; Taxable income; and Unearned income, 
below. 
Accrued income. Income earned during a certain ac
counting period but not received. 
Adjusted gross income. The difference between the tax
payers' gross income and allowable adjustments. Ad
justments include but are not limited to; contributions 
to an individual retirement account, alimony payments

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INCOME 
and reimbursed employee business expenses. I.R.C. 
§ 162. 
Deferred income. Income received before it is earned, 
such as rents received in one accounting period for use 
of the premises in the following period. 
Earned income. Income derived from one's own labor or 
through active participation in a business as distin
guished from income from, for example, dividends or 
investments. See also Earnings. 
Fixed income. That type of income which is stable over 
a considerable period of time such as a pension or 
annuity. 
Gross income. The total income of a business or individ
ual before deductions; including salary, commissions, 
royalties, gains from dealings in property, interest, divi
dends, etc. I.R.C. § 61. 
Imputed income. Value assigned to property or income, 
sometimes artificially for tax purposes, as in the case of 
a non-interest bearing or low interest bearing loan be
tween persons or organizations related to each other. 
I.R.C. § 483. The value of property enjoyed by the 
taxpayer as part of his salary; e.g. use of home provided 
by employer to employee. 
The monetary value of goods and services which some
one produces and is consumed within the immediate 
family unit as well as the monetary value of the use of 
property which someone within the family unit owns. 
Imputed income is not included in gross income. 
Investment income. See Unearned income, below. 
Net (business) income. The profit of a business arrived 
at by deducting operating expenses and taxes from gross 
receipts. Income after costs and taxes. 
Nonoperating income. Income of a business from invest
ments and not from operations. 
Operating income. Income derived from operations of 
business in contrast to income from investments. 
Ordinary income. See Ordinary. 
Personal income. In taxation, the total of income re
ceived by individuals from all sources. 
Unearned income. Income derived from investments, 
such as dividends and interest, as distinguished from 
income derived from personal labor. 
Income received but not yet earned. Normally, such 
income is taxed when received, even for accrual basis 
taxpayers. 
Income averaging. Method of computing tax by aver
aging an individual's current income with that of the 
three preceding years. Income averaging was common 
with individuals such as athletes, or actors whose in
come may be very high in a given year in contrast to 
prior years. The tax benefits of income averaging were 
repealed with the Tax Reform Act of 1986. 
Income basis. Method of computing the rate of return 
on a security based on the dividend or interest and on 
the price paid rather than on its face or par v alue. 
764 
Income beneficiary. The party entitled to income from 
property. A typical example would be a trust where A 
is to receive the income for life with corpus or principal 
passing to B upon A's death. In this case, A would be 
the income beneficiary of the trust. 
Income bond. See Bond. 
Income exclusions. Items of income which are not 
subject to federal taxes. An example of such includes 
interest earned on municipal bonds, as well as money or 
property received by gift or inheritance. 
Income in respect of decedent. Income earned by a 
decedent at the time of death but not reportable on the 
final income tax return because of the method of ac
counting utilized. Typically it includes any accrued 
income to date of death for cash basis decedent/taxpay
er. Estate of Rose, 465 Pa. 53, 348 A.2d 11 3, 11 6. Such 
income is included in the gross estate and will be taxed 
to the eventual recipient (i.e., either the estate or heirs). 
The recipient will, however, be allowed an income tax 
deduction for the death tax attributable to the income. 
I.R.e. § 691. 
In estate taxation, term refers to inclusion of certain 
income in estate as if it had been collected by decedent 
in his or her lifetime, Grill v. U. S., 157 Ct.Cl. 804, 303 
F.2d 922, 927, e.g. payments received toward satisfaction 
of a right or expectancy created almost entirely through 
the efforts or status of the decedent and which, except 
for his death and without further action on his part, the 
decedent would have realized as gross income. 
Income property. Property which produces income; 
e.g. rental property. Such property can be either resi
dential, commercial, or industrial. 
Income security. Government programs to maintain 
the income of people, including Social Security, govern
ment pensions, unemployment compensation, welfare, 
food stamps, disability benefits, subsidized housing, and 
energy assistance. Medicare and Medicaid are catego
rized as health programs. 
Income shifting. An attempt by a taxpayer to transfer 
money to one or many family members in an effort to 
reduce the transferors' tax liability. The Tax Reform 
Act of 1986 has reduced the benefits of income shifting 
by such regulations as; taxing children under the age of 
14 on unearned income (interest and dividends) at the 
parents' highest rate. See Kiddie tax. 
Income splitting. See Joint tax return. 
Income statement. The statement of revenues, ex
penses, gains, and losses for the period ending with net 
income (or loss) for the period. A financial statement 
that indicates how a firm performed during a period of 
time. See also Balance (Balance sheet); Earnings report; 
Profit and loss statement. 
Income tax. A tax on the annual profits arising from 
property, business pursuits, professions, trades, or of
fices. A tax on a person's income, wages, salary, com
missions, emoluments, profits, and the like, or the excess 
thereof over a certain amount. Tax levied by the U.S.

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760 
Government, and by some state governments, on an 
individual, corporation, or other taxable unit's income. 
See also Tax. 
Income tax deficiency. Such exists whenever taxpayer 
has failed to pay sufficient taxes on income, notwith
standing lack of determination by commissioner or his 
agents. Moore v. Cleveland Ry. Co., C.C.A.O hio, 108 
F.2d 656, 659. 26 V.S.C.A. § 6211 et seq. See Deficiency 
notice; Ninety day letter. 
Income tax return. Forms required by federal and 
state taxing authority to be completed by taxpayer, 
disclosing all items necessary for computation of tax and 
the computation itself. See also Return. 
In commendam lin k�mend�m/. In commendation; as 
a commended living. See Commenda. 
A term applied in Louisiana to a limited partnership, 
answering to the French "en commandite". 
In commerce. The words "in commerce" normally 
mean in interstate commerce. Rose v. Vulcan Materials 
Co., 282 N.C. 643, 194 S.E.2d 521, 528. See In commerce 
test; Interstate commerce. 
In commerce test. Jurisdiction under the Sherman Act 
is conferred if the acts complained of occur in the flow of 
commerce or if those acts, though local in nature, sub
stantially affect interstate commerce. With the "in 
commerce test," the impact on interstate commerce is 
judged according to a qualitative standard, even insub
stantial activity placed directly in the flow of commerce 
satisfies the jurisdictional requirements. McLain v. 
Real Estate Bd. of New Orleans, Inc., C.A.La., 583 F.2d 
1315, 1318. 
In commodato hrec pactio, ne dolus prrestetur, rata 
non est lin kom�deytow hiyk preksh(iy)ow, niy d6wl�s 
pr�stiyt�r, reyt� non est!. In the contract of loan, a 
stipulation not to be liable for fraud is not valid. 
Incommodum non solvit argumentum link6m�d�m 
non s6lv�t argy�ment�m/. An inconvenience does not 
destroy an argument. 
In common. Shared in respect to title, use, or enjoy
ment; without apportionment or division into individual 
parts. Held by several for the equal advantage, use, or 
enjoyment of all. See Condominium. 
In communi lin k�myuwnay I. In common. 
Incommunicado. A person accused of a crime who does 
not have the right of communicating with other than 
the ones in charge of his custody or the one investigat
ing the crime. 
Incommunication. In Spanish law, the condition of a 
prisoner who is not permitted to see or to speak with 
any person visiting him during his confinement. A 
person accused cannot be subjected to this treatment 
unless it be expressly ordered by the judge, for some 
grave offense, and it cannot be continued for a longer 
period than is absolutely necessary. This precaution is 
resorted to for the purpose of preventing the accused 
from knowing beforehand the testimony of the witness
es, or from attempting to corrupt them and concert such 
IN CONSIDERATIONE PRlEMISSORUM 
measures as will efface the traces of his guilt. As soon, 
therefore, as the danger of his doing so has ceased, the 
interdiction ceases likewise. 
Incommutable. Not capable of or entitled to be com
muted. See Commutation. 
Incompatibility. Incapability of existing or being exer
cised together. As ground for divorce, refers to such 
deep and irreconcilable conflict in personalities or tem
perments of parties as makes it impossible for them to 
continue normal marital relationship. Such conflict of 
personalities and dispositions must be so deep as to be 
irreconcilable and irremediable. Berry v. Berry, 215 
Kan. 47, 523 P.2d 342, 345. Such condition is a ground 
for divorce in states with no-fault divorce statutes. See 
Irretrievable breakdown of marriage. 
Incompetency. Lack of ability, knowledge, legal qualifi
cation, or fitness to discharge the required duty or 
professional obligation. A relative term which may be 
employed as meaning disqualification, inability or inca
pacity and it can refer to lack of legal qualifications or 
fitness to discharge the required duty and to show want 
of physical or intellectual or moral fitness. County Bd. 
of Ed. of Clarke County v. Oliver, 270 Ala. 107, 11 6 So.2d 
566, 567. See also Guardian; Incapacity; Insanity; Non 
compos mentis. Compare Competency. 
Incompetent evidence. Evidence which is not admissi
ble under the established rules of evidence; e.g. Fed. 
Rules of Evidence. Evidence which the law does not 
permit to be presented at all, or in relation to the 
particular matter, on account of lack of originality or of 
some defect in the witness, the document, or the nature 
of the evidence itself. See e.g. Hearsay. See also Inad
missible. 
Incomplete transfer. A transfer made by a decedent 
during lifetime which, because of certain control or 
enjoyment retained by the transferor, will not be con
sidered complete for Federal death tax purposes. Thus, 
some or all of the fair market value of the property 
transferred will be included in the transferor's gross 
estate. I.R.C. §§ 2036-2038. See also Revocable trans
fer. 
Inconclusive. That which may be disproved or rebut
ted; not shutting out further proof or consideration. 
Applied to evidence and presumptions. See Presumption. 
In conjunction with lin k�nj;}IJksh�n wi()l. In associa
tion with. 
In conjunctivis, oportet utramque partem esse veram 
lin konj�IJktayv�s, �p6rt�t yuwtrremkwiy part�m esiy 
vir�ml . In conjunctives it is necessary that each part be 
true. In a condition consisting of divers parts in the 
copulative, both parts must be performed. 
In consideratione inde I in k�nsid�reyshiy6wniy indiy I. 
In consideration thereof. 
In consideratione legis lin k�nsid�reyshiy6wniy liyj�s/. 
In consideration or contemplation of law; in abeyance. 
In consideratione prremissorum lin k�nsid�reyshiy<?w
niy prem�s6r�m/. In consideration of the premises.

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IN CONSIMILI CASU 
In consimili casu lin k:msim;}lay keys(y)uw/. See Consi
mili casu. 
In consimili casu, consimile debet esse remedium lin 
k;}nsim;}lay keys(y)uw, k;}nsim;}liy deb;}t eSlY 
r;}miyd(i)y;}m/. In a similar case the remedy should be 
similar. 
Inconsistent. Mutually repugnant or contradictory. 
Contrary, the one to the other, so that both cannot 
stand, but the acceptance or establishment of the one 
implies the abrogation or abandonment of the other; as, 
in speaking of "inconsistent defenses," or the repeal by a 
statute of "all laws inconsistent herewith." Berry v. 
City of Fort Worth, Tex.Civ.App., 11 0 S.W.2d 95, 103. 
Inconsistent statement. See Prior inconsistent state
ments. 
In conspectu ejus lin k;}nspekt(y)uw iyj;}s/. In his sight 
or view. 
In consuetudinibus, non diuturnitas temporis sed 
soliditas rationis est consideranda lin konsw;}t(y)u
wdin;}b;}s, non day;}t�rn;}tres temp;}r;}s sed s;}lid;}tres 
reyshiyown;}s est k;}nsid;}rrend;}/. In customs, not length 
of time, but solidity of reason, is to be considered. The 
antiquity of a custom is to be less regarded than its 
reasonableness. 
In contemplation of death. In taxation and property 
law, a transaction, commonly a transfer or gift of prop
erty, made by the donor with a view towards his death. 
For federal estate tax purposes, a transfer made within 
three years of the decedent's death is deemed to be made 
in contemplation of death and the value of the property 
is included in his or her estate for such tax purposes. 
I.R.C. § 2035(b). See also Contemplation of death. 
Incontestability clause. A clause in a life or health 
insurance policy providing that after the policy has been 
in force for a given length of time (e.g. two or three 
years) the insurer shall not be able to contest it as to 
statements contained in the application; and, in the 
case of health insurance, the provision also states that 
no claim shall be denied or reduced on the grounds that 
a condition not excluded by name at the time of issue 
existed prior to the effective date. 
Incontinence linkont;}n;}ns/. Want of chastity; indul
gence in unlawful carnal connection. 
In continenti lin kont;}nentay/. Immediately; without 
any interval or intermission. Sometimes written as one 
word "incontinenti. " 
In contractibus, benigna; in testamentis, benignior; 
in restitutionibus, benignissima interpretatio fa
cienda est lin k;}ntrrekt;}b;}s, b;}nign;}, in test;}ment;}s, 
b;}nigniy;}r, in rest;}t(y)uwshiyown;}b;}s, b;}nignis;}m;} 
int�r-
pr;}teysh(iy)ow fres(h)iyend;} est I . In contracts, the inter
pretation is to be liberal; in wills, more liberal; in 
restitutions, most liberal. 
In contractibus, rei veritas potius quam scriptura 
perspici debet lin k;}ntrrekt;}b;}s, riyay vehr;}tres 
powsh(iy);}s kwrem skriptyur;} p�rsp;}say deb;}t/. In con-
766 
tracts, the truth of the matter ought to be regarded 
rather than the writing. 
In contractibus, tacite insunt [veniunt] qure sunt 
moris et consuetudinis lin k;}ntrrekt;}b;}s, tres;}tiy 
ins�nt kwiy s�nt mor;}s et konsw;}t(y)uwd�n�s/"v iyn(i)y
;}ntO I. In contracts, matters of custom and usage are 
tacitly implied. A contract is understood to contain the 
customary clauses, although they are not expressed. 
In contrahenda venditione, ambiguum pactum con
tra venditorem interpretandum est lin kontr;}hend;} 
v;}ndishiyowniy rembigyuw;}m prekt;}m kontr;} 
vend;}tor�m int�rpr;}trend;}m est!. In the contract of 
sale, an ambiguous agreement is to be interpreted 
against the seller. 
Inconvenience. In the rule that statutes should be so 
construed as to avoid "inconvenience," this means, as 
applied to the public, the sacrifice or jeopardizing of 
important public interests or hampering the legitimate 
activities of government or the transaction of public 
business, and, as applied to individuals, serious hardship 
or injustice. 
In conventionibus, contrahentium voluntas potius 
quam verba spectari placuit lin k;}nvEmshiyown�b;}s, 
kontr;}hensh(iy);}m v;}l�ntres powsh(iy)�s kwrem v�rb;} 
spekteray plrek(y)uw;}t!. In agreements, the intention of 
the contracting parties, rather than the words used, 
should be regarded. 
Incopolitus link;}pol;}t;}s/. A proctor or vicar. 
Incorporalia bello non adquiruntur linkorp;}reyl(i)y;} 
below non redkw;}r�nt;}r/. Incorporeal things are not 
acquired by war. 
Incorporamus linkorp;}reym;}s/. We incorporate. One 
of the words by which a corporation may be created in 
England. 1 Bl.Comm. 473. 
Incorporate. To create a corporation; to confer a corpo
rate franchise upon determinate persons. See Incorpo
ration. 
To declare that another document shall be taken as 
part of the document in which the declaration is made 
as much as if it were set out at length therein. See 
Incorporation by reference. 
Incorporation. The act or process of forming or creat
ing a corporation. The formation of a legal or political 
body, with the quality of perpetual existence and succes
sion, unless limited by the act of incorporation. Abbott 
v. Limited Mut. Compensation Ins. Co., 30 Cal.App.2d 
157, 85 P.2d 961, 964. Incorporation procedure and 
requisites are governed by state statutes; a number of 
which are patterned on the Model Business Corporation 
Act. See also Incor porator. 
In the civil law, the union of one domain to another. 
See also Articles of incorporation; Certificate of incorpo
ration. 
Incorporation by reference. The method of making 
one document of any kind become a part of another 
separate document by referring to the former in the 
latter, and declaring that the former shall be taken and

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767 
considered as a part of the latter the same as if it were 
fully set out therein. If the one document is copied at 
length in the other, it is called "actual incorporation." 
Incorporator. Person who joins with others to form a 
corporation and the successors of those who actually 
sign the papers of incorporation. The person or persons 
who execute the articles of incorporation. In modern 
corporation statutes only a single incorporator is re
quired. Under such statutes the role of the incorporator 
is largely limited to the act of execution of the articles of 
incorporation, and restrictions on who may serve as 
incorporators have largely been eliminated. See, e.g., 
Rev. Model Bus. Corp. Act, § 2.01. 
In corpore lin korp�riy/. In body or substance; in a 
material thing or object. 
Incorporeal link�rporiy�lI. Without body; not of mate
rial nature; the opposite of "corporeal" (q.v .). 
Incorporeal chattels. A class of incorporeal rights 
growing out of or incident to things personal; such as 
patent-rights and copyrights. 
Incorporeal hereditaments. See Hereditaments. 
Incorporeal property. In the civil law, that which 
consists in legal right merely. The same as choses in 
action at common law. 
Incorporeal rights. Rights to intangibles, such as legal 
actions, rather than rights to property (rights to posses
sion or use of land). 
Incorporeal things. Things that have no body, but are 
comprehended by the understanding, such as rights of 
inheritance, servitudes, obligations, and right of intellec
tual property. Webb v. State Through Dept. of Transp. 
& Development, La.App. 1 Cir., 470 So.2d 994, 996. 
Incorrigi ble linkor�j�b�lI. Incapable of being corrected, 
reformed, amended, or improved. With respect to juve
nile offenders, unmanageable by parents or guardians. 
Shinn v. Barrow, Tex.Ci v.App., 121 S.W.2d 450, 45 1. 
See Delinquent child ; Disobedient child . 
Incorruptible link�r�pt�b�lI. That which cannot be 
affected by immoral or debasing influences, such as 
bribery or the hope of gain or advancement. 
Increase. Enlargement, growth, development, incre
ment, addition, accession, extension, production, profit, 
interest, issue. The produce of land; the offspring of 
animals. 
Increase, affidavit of. Affidavit of payment of in
creased costs, produced on taxation. 
Increase, costs of. In old English law, it was formerly a 
practice with the jury to award to the successful party 
in an action the nominal sum of 40s. only for his costs; 
and the court assessed by their own officer the actual 
amount of the successful party's costs; and the amount 
so assessed, over and above the nominal sum awarded by 
the jury, was thence called "costs of increase." The 
practice has now wholly ceased. 
Increment li1Jkr�m�ntl. An increasing in quantity, 
number, value, etc. That which is gained or added; the 
INCULPATE 
act or process of increasing, augmenting, or growing; 
enlargement, that which is added; increase; opposed to 
decrement. In re Corning's Will, 160 Misc. 434, 289 
N.Y.S. 11 01, 1103. 
Incremental cost. Additional or increased costs. For 
example, as applied to cost of gas, includes cost of gas to 
distributors plus transportation costs and taxes. Fuels 
Research Council Inc. v. Federal Power Commission, 
C.A.Ill., 374 F.2d 842. 
Incrementum li1Jkr�m{mt�m/. Lat. Increase or im
provement, opposed to decrementum or abatement. 
In criminalibus, probationes debent esse luce clari
ores lin krim�neyl�b�s, pr�leyshiyowniyz deb�nt esiy 
l(y)uwsiy klreriyoriyz/. In criminal cases, the proofs 
ought to be clearer than light. 
In criminalibus, sufficit generalis malitia intentionis, 
cum facto paris gradus lin krim�neyl�b�s, sM�s�t 
jen�reyl�s m�lish(iy)� intenshiyown�s k;}m frektow prer�s 
greyd�s/. In criminal matters or cases, a general malice 
of intention is sufficient [if united], with an act of equal 
or corresponding degree. 
In criminalibus, voluntas reputabitur pro facto lin 
krim�neyl�b�s v�l�ntres repy�teyb�t�r prow frektow/. In 
criminal acts, the will will be taken for the deed. 
Incriminate linkrim�neyt/. To charge with crime; to 
expose to an accusation or charge of crime; to involve 
oneself or another in a criminal prosecution or the 
danger thereof; as, in the rule that a witness is not 
bound to give testimony which would tend to incrimi
nate him. In re Dendy, Tex.Civ.App., 175 S.W.2d 297, 
302. See Inculp atory; Self-incrimination. 
Incriminating admission. An acknowledgment of facts 
tending to establish guilt. 
Incriminating circumstance. A fact or circumstance, 
collateral to the fact of the commission of a crime, which 
tends to show either that such a crime has been commit
ted or that some particular person committed it. 
Incriminating evidence. Evidence which tends to es
tablish guilt of the accused or from which, with other 
evidence, his or her guilt may be inferred. See also 
Inculp atory. Compare Excul patory statement or evidence. 
Incrimination. See Incrimi nate; Self-incrimination. 
Incriminating statement. A statement which tends to 
establish guilt of the accused or from which, with other 
facts, his guilt may be inferred, or which tends to 
disprove some defense. 
Incroachment linkrowchm�nt/. An unlawful gaining 
upon the right or possession of another. See Encroach
ment; Trespass. 
In cujus rei testimonium lin kyuwj�s riyay test�mow
n(i)y�m/. In testimony whereof. The initial words of 
the concluding clause of ancient deeds in Latin, literally 
translated in the English forms. 
Inculpate link�lpeyt/i1Jk�lpeyt/. To impute blame or 
guilt; to accuse; to involve in guilt or crime. See 
Incrimi nate.

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INCULPATORY 
Inculpatory link�lp�t(o)riy/. In the law of evidence, 
going or tending to establish guilt; that which tends to 
incriminate. People v. White, 35 Cal.App.2d 61, 94 P.2d 
617, 621. While a "confession" admits commission of a 
crime, an "inculpatory statement" admits a fact, circum
stance or involvement which tends to establish guilt or 
from which guilt may be inferred. State v. Brumfield, 
La., 329 So.2d 181, 188. See also Incrimi nate; Incrimina
ting evidence. Compare Excul patory statement or evi
dence. 
Incumbent link�mb�nt/. A person who is in present 
possession of an office, and it is not limited, qualified or 
restricted by the method by which one attained office. 
Keller v. Smith, 170 Mont. 399, 553 P.2d 1002, 1007. 
One who is legally authorized to discharge the duties of 
an office. Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 
829, 839. 
In ecclesiastical law, the term signifies a clergyman 
who is in possession of a benefice. 
Incumber. See Encumb rance. 
Incumbrance. See Encumbr ance. 
Incumbrances, covenant against. See Covenant. 
Incur. To have liabilities cast upon one by act or opera-
tion of law, as distinguished from contract, where the 
party acts affirmatively. To become liable or subject to, 
to bring down upon oneself, as to incur debt, danger, 
displeasure and penalty, and to become through one's 
own action liable or subject to. Com. v. Benoit, 346 
Mass. 294, 191 N.E.2d 749, 751. 
Incurable disease. Any disease which has reached an 
incurable stage in the patient afflicted therewith, ac
cording to general state of knowledge of the medical 
profession. Disease for which there is no known cure. 
Incurramentum link;}r�ment�m/. L. Lat. The liability 
to a fine, penalty, or amercement. 
Incurred risk. A defense to a claim of negligence, 
separate and distinct from defense of contributory negli
gence. It contemplates acceptance of a specific risk of 
which the plaintiff has actual knowledge. Power v. 
Brodie, Ind.App. 1 Dist., 460 N.E.2d 1241. See also 
Assumption of risk. 
In custodia legis lin k�st6wd(i)y� liyj�s/. In the custody 
or keeping of the law, as when a defendant's property is 
seized through the remedy of attachment and is held by 
the sheriff pending resolution of the main action be
tween the parties. 
In custody. A suspect is "in custody" for purpose of 
determining necessity of Miranda warnings if police, by 
word or by conduct, have manifested to suspect that he 
is not free to leave. Hammill v. U.S., D.C.App., 498 
A.2d 551, 558. Such custody exists when the suspect 
has been deprived of his freedom in a significant way, 
and the place where the interrogation takes place does 
not conclusively establish presence or absence of custo
dy. U.S. v. Jones, C.A.Ark., 630 F.2d 613, 615. See also 
Miranda Rule. 
Inde lindiy/. Lat. Thence; thenceforth; thereof; there
upon; for that cause. 
768 
Indebitatus lindeb�teyt�s/. Lat. Indebted. Nunquam 
indebitatus, never indebted. The title of the plea substi
tuted in England for nil debet. 
Indebitatus assumpsit lindeb�teyt�s �s�m(p)s�tI. Lat. 
Being indebted, he promised or undertook. That form of 
the action of assumpsit in which the declaration alleges 
a debt or obligation to be due from the defendant, and 
then avers that, in consideration thereof, he promised to 
pay or discharge the same. 
Indebiti solutio lindeb�tay s�l(y)uwsh(iy)ow/. Lat. In 
the civil and Scotch law, a payment of what is not due. 
When made through ignorance or by mistake, the 
amount paid might be recovered back by an action 
termed "conditio indebiti. " 
Indebitum lindeb�t�m/. In the civil law, not due or 
owing. 
Indebtedness. The state of being in debt, without re
gard to the ability or inability of the party to pay the 
same. The owing of a sum of money upon a certain and 
express agreement. Obligations yet to become due con
stitute indebtedness, as well as those already due. And 
in a broad sense and in common understanding the word 
may mean anything that is due and owing. See also 
Debt. 
Indecent. Offensive to common propriety; offending 
against modesty or delicacy; grossly vulgar; obscene; 
lewd; unseemly; unbecoming; indecorous; unfit to be 
seen or heard. See Obscene. 
Indecent assault. The act of a male person taking 
indecent liberties with the person of a female, without 
her consent and against her will, but with no intent to 
commit the crime of rape. 
Indecent exhibition. Any exhibition contra bonos mores, 
as the taking a dead body for the purpose of dissection 
or public exhibition. 
Indecent exposure. Exposure to sight of the private 
parts of the body in a lewd or indecent manner in a 
public place. It is an indictable offense at common law, 
and by statute in most states. Term refers to exhibition 
of those private parts which instinctive modesty, human 
decency or self-respect require shall be kept covered in 
presence of others. Exposure of person becomes inde
cent when it occurs at such time and place where 
reasonable person knows or should know his act will be 
open to observation of others. State v. Borchard, 24 
Ohio App.2d 95, 264 N.E.2d 646, 650. 
A person commits a misdemeanor if, for the purpose 
of arousing or gratifying sexual desire of himself or of 
any person other than his spouse, he exposes his geni
tals under circumstances in which he knows his conduct 
is likely to cause affront or alarm. Model Penal Code, 
§ 213.5. 
Indecent liberties. In the statutory offense of "taking 
indecent liberties with the person of a female child," 
this phrase means such liberties as the common sense of 
society would regard as indecent and improper. Accord
ing to some authorities, it involves an assault or attempt

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at sexual intercourse, but according to others, it is not 
necessary that the liberties or familiarities should have 
related to the private parts of the child. See Obscene. 
Indecent publications. Such as are offensive to modesty 
and delicacy; obscene; lewd; tending to the corruption 
of morals. Dunlop v. U. S., 165 U.S. 486, 17 S.Ct. 375, 41 
L.Ed. 799. See Obscene. 
Public indecency. This phrase has no fixed legal mean
ing, is vague and indefinite, and cannot, in itself, imply 
a definite offense. The courts, by a kind of judicial 
legislation, in England and the United States, have 
u�ually limited the operation of the term to public 
displays of the naked person, the publication, sale, or 
exhibition of obscene books and prints, or the exhibition 
of a monster,-acts which have a direct bearing on 
public morals, and affect the body of society. Irven v. 
State, 138 Tex.Cr.R. 368, 136 S.W.2d 608, 609. See 
Obscene; also, Indecent exposure, above. 
Indecimable lindes(�)m�b�l/. In old English law, that 
which is not titheable, or liable to pay tithe. 
Inde datre leges ne fortior omnia posset I indiy deytiy 
liyjiyz niy f6rsh(iy)�r 6mn(i)y� p6s�t/. Laws are made to 
prevent the stronger from having the power to do every
thing. 
Indefeasible /ind�fiyz�b�l/. That which cannot be de
feated, revoked, or made void. This term is usually 
applied to an estate or right which cannot be defeated. 
Indefensus lind�fens�s/. Lat. In old English practice, 
undefended; undenied by pleading. A defendant who 
makes no defense or plea. 
Indefinite. Without fixed boundaries or distinguishing 
characteristics; not definite, determinate, or precise. 
Term is more synonymous with temporary than with 
permanent; indefinite contemplates that condition will 
end at unpredictable time, whereas "permanent" does 
not contemplate that condition will cease to exist. Twis
dale v. Womack & Martel, Fla., 148 So.2d 21, 23. 
Indefinite failure of issue. A failure of issue not mere
ly at the death of the party whose issue are referred to, 
but at any subsequent period, however remote. A fail
ure of issue whenever it shall happen, sooner or later, 
without any fixed, certain, or definite period within 
which it must happen. 
Indefinite legacy, See Legacy. 
Indermite number. A number which may be increased 
or diminished at pleasure. 
Indefinitum requipoUet universali lindef�nayt�m 
ekw�p6bt yuwn�v�rseylay I. The undefined is equiva
lent to the whole. 
Indefinitum supplet locum universalis lindef�nayt�m 
s;}pl�t 16wk�m yuwn�v�rseyl�s/. The undefined or gen
eral supplies the place of the whole. 
In delicto lin d�liktow/. In fault. See In pari delicto. 
Indemnification. In corporate law, the practice by 
which corporations pay expenses of officers or directors 
who are named as defendants in litigation relating to 
INDEMNITY BOND 
corporate affairs. In some instances corporations may 
indemnify officers and directors for fines, judgments, or 
amounts paid in settlement as well as expenses. See 
also Indem nify; Indemnity; Insurance (Directors' and offi
cers' (D&O) liability insurance). 
Indemnify lindemn�fay/. To restore the victim of a 
loss, in whole or in part, by payment, repair, or replace
ment. To save harmless; to secure against loss or 
damage; to give security for the reimbursement of a 
person in case of an anticipated loss falling upon him. 
To make good; to compensate; to make reimbursement 
to one of a loss already incurred by him. Several states 
by statute have provided special funds for compensating 
crime victims. See also Contribution; Hold harmless 
agreement; Indemnity; Reparation; Restitution; Subroga
tion. 
Indemnis lindemn�s/. Lat. Without hurt, harm, or 
damage; harmless. 
Indemnitee lindemn�tiy/. The person who, in a con
tract of indemnity, is to be indemnified or protected by 
the other. 
Indemnitor lindemn�t�r/. The person who is bound, by 
an indemnity contract, to indemnify or protect the oth
er. 
Indemnity lindemn�diy/. Reimbursement. An under
taking whereby one agrees to indemnify another upon 
the occurrence of an anticipated loss. Dawson v. Fideli
ty & Deposit Co. of Md., D.C.S.D., 189 F.Supp. 854, 865. 
A contractual or equitable right under which the entire 
loss is shifted from a tortfeasor who is only technically 
or passively at fault to another who is primarily or 
actively responsible. Moorhead v. Waelde, La.App., 499 
So.2d 387, 389. Compare Contribution; Subrogation. See 
also Double indemn ity; Exoneration; Indem nify. 
The benefit payable under an insurance policy. 
Immunity from the punishment of past offenses. 
Lawson v. Halifax-Tonopah Min. Co., 36 Nev. 591, 135 
P. 611, 613. 
The term is also used to denote the compensation 
given to make a person whole from a loss already 
sustained; as where the government gives indemnity for 
private property taken by it for public use. See Con
demnation; Eminent domain; Expropriation; Just compen
sation. 
Indemnity against liability. As contrasted with indem
nity against loss, which is an obligee's right to compen
sation for a loss already sustained, it is an obligee's right 
to indemnification at the time a liability arises. The 
claim arises upon the obligor's default, regardless of 
whether the obligee has suffered loss. Central National 
Bank of Poteau v. McDaniel, Okl.App., 734 P.2d 1314, 
1316. See also Subrogation. 
Indemnity bond. An undertaking given by an obligor 
to reimburse an obligee for any loss suffered due to the 
conduct of the obligor or a third person. State Street 
Bank v. U.S. Fid. & Guar., 181 Ill.App.3d 1081, 132 
Ill.Dec. 216, 539 N.E.2d 779, 780.

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INDEMNITY INSURANCE 
Indemnity insurance. See Insurance. 
Indemnity lands. Lands granted to railroads, in aid of 
their construction, being portions of the public domain, 
to be selected in lieu of other parcels embraced within 
the original grant, but which were lost to the railroad by 
previous disposition or by reservation for other pur
poses. See Land grant. 
Indemnity policy. See Indemnity insurance and Liabili
ty insurance under Insurance. 
Indenization linden;)zeysh:m/. The act of making a 
denizen, or of naturalizing. 
Indent, n. A certificate or indented certificate issued by 
the government of the United States at the close of the 
Revolution for the principal or interest of the public 
debt. 
Indent, v. To cut in a serrated or wavy line. In old 
conveyancing, if a deed was made by more parties than 
one, it was usual to make as many copies of it as there 
were parties, and each was cut or indented (either in 
acute angles, like the teeth of a saw, or in a wavy line) 
at the top or side, to tally or correspond with the others, 
and the deed so made was called an "indenture". An
ciently, both parts were written on the same piece of 
parchment, with some word or letters written between 
them through which the parchment was cut, but after
wards, the word or letters being omitted, indenting came 
into use, the idea of which was that the genuineness of 
each part might be proved by its fitting into the angles 
cut in the other. But at length even this was discontin
ued, and eventually the term served only to give name 
to the species of deed executed by two or more parties, 
as opposed to a deed-poll (q.v.). 2 Bl.Comm. 295. 
Indenture lind€mty;)r/. In business financing, a written 
agreement under which bonds and debentures are is
sued, setting forth form of bond, maturity date, amount 
of issue, description of pledged assets, interest rate, and 
other terms. Typically, the contract is entered into 
between the corporation and an indenture trustee whose 
responsibility is to protect the bondholders. The inden
ture often constitutes a mortgage on specified corporate 
property to secure the bonds. See Debenture; Trust inden
ture; Trust Indenture Act. 
In real estate conveyancing, a deed to which two or 
more persons are parties, and in which these enter into 
reciprocal and corresponding grants or obligations to
wards each other; whereas a deed-poll is properly one in 
which only the party making it executes it, or binds 
himself by it as a deed, though the grantors or grantees 
therein may be several in number. See Indent, v. 
In bankruptcy law, indenture means mortgage, deed 
of trust, or indenture, under which there is outstanding 
a security, other than a voting-trust certificate, consti
tuting a claim against the debtor, a claim secured by a 
lien on any of the debtor's property, or an equity securi
ty of the debtor. Bankruptcy Code, § 101. 
Indenture of a fine. In old English law, indentures 
made and engrossed at the chirographer's office and 
delivered to the cognizor and the cognizee, usually be-
770 
ginning with the words: "Hcec est finalis concordia." 
And then reciting the whole proceedings at length. 2 
Bl.Comm. 35 1. 
Indenture of trust. See Trust indenture. 
Indenture trustee. Person or institution named in a 
trust indenture and charged with holding legal title to 
the trust property and with carrying out the terms of 
the indenture. Trustee under an indenture. Bankrupt
cy Code, § 101. 
Independence. The state or condition of being free 
from dependence, subjection, or control. Political inde
pendence is the attribute of a nation or state which is 
entirely autonomous, and not subject to the government, 
control, or dictation of any exterior power. 
Independent. Not dependent; not subject to control, 
restriction, modification, or limitation from a given out
side source. 
Independent adjuster. A person, firm or corporation 
who holds himself or itself out for employment as claims 
adjuster to more than one insurance company, is not a 
regular employee of the company, does not work exclu
sively for one company and is paid in each case assigned 
for time consumed and expenses incurred. 
Independent advice. Concerning a trust deed or will 
which must be shown where a fiduciary relationship 
exists, means that the donor had the preliminary benefit 
of conferring fully and privately upon the subject of his 
intended gift with a person who was not only competent 
to inform him correctly as to its legal effect, but who 
was, furthermore, so disassociated from the interests of 
the donee as to be in a position to advise with the donor 
impartially and confidentially as to the consequences to 
himself of his proposed benefaction. 
Independent contract. See Contract. 
Independent contractor. Generally, one who, in exer
cise of an independent employment, contracts to do a 
piece of work according to his own methods and is 
subject to his employer's control only as to end product 
or final result of his work. Hammes v. Suk, 291 Minn. 
233, 190 N.W.2d 478, 480, 481. One who renders service 
in course of self employment or occupation, and who 
follows employer's desires only as to results of work, and 
not as to means whereby it is to be accomplished. 
Sparks v. L. D. Folsom Co., 217 Cal.App.2d 279, 31 
Cal.Rptr. 640, 643. 
An independent contractor is a person who contracts 
with another to do something for him but who is not 
controlled by the other nor subject to the other's right to 
control with respect to his physical conduct in the per
formance of the undertaking. He may or may not be an 
agent. Restatement, Second, Agency, § 2. 
Independent counsel. The Ethics in Government Act, 
28 U.S.C.A. § 591 et seq., provides for a Special Division 
with authority to appoint independent counsel to inves
tigate possible criminal misconduct by high level govern
ment officials. The constitutionality of this Act was

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upheld in Morrison v. Olson et aI., 487 U.S. 654, 108 
S.Ct. 2597, 101 L.Ed.2d 569. 
Independent covenant. See Covenant. 
Independent intervening cause. A conclusory label 
used by the common law to refer to a cause that inter
venes between the defendant's behavior and a given 
result such that it is regarded as unfair to hold the 
defendant responsible for the result. See also Interven
ing cause. 
Independenter se habet assecuratio a viaggio navis 
lind;}pemdent;}r siy heyb;}t ;}seky;}reysh(iy)ow ey 
viyeyj(iy)ow neyv;}s/. The voyage insured is an indepen
dent or distinct thing from the voyage of the ship. 
Independent significance. An act or document is said 
to have independent legal significance so as to carry out 
the wishes of the testator or decedent if it is not exe
cuted solely to avoid the requirements of a will; and, 
hence, what may appear to be a testamentary disposi
tion without observing the requirements of the statutes 
on wills will be given effect. 
Independent source rule. In connection with evidence, 
if the evidence to be introduced can be traced to a source 
independent of the originally illegally obtained fruits of 
interrogation or arrest, it is admissible. Wong Sun v. U. 
S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This 
exception to exclusionary rule allows admission of evi
dence which was gained through independent source as 
well as tainted source. U.S. v. Silvestri, C.A.Mass., 787 
F .2d 736, 740. 
Indestructible trust. A trust which, inter alia, does not 
permit the invasion of principal by the trustees but 
which provides for income to A for life, with remainder 
to A's son's issue and for failure to A's daughter or issue. 
Application of Renn, 177 Misc. 95, 29 N.Y.S.2d 410, 412. 
Indeterminate. That which is uncertain, or not particu
larly designated. 
Indeterminate conditional release. Type of release 
from penal confinement after fulfillment of conditions 
but subject to revocation for breach of conditions of 
release. See also Parole. 
Indeterminate obligation. See Obligation. 
Indeterminate sentence. A sentence to imprisonment 
for the maximum period defined by law, subject to 
termination by the parole board or other agency at any 
time after service of the minimum period. Such a 
sentence is invalid unless specifically authorized by stat
ute. 
A sentence of imprisonment the duration of which is 
not fixed by the court but is left to the determination of 
penal authorities within minimum and maximum time 
limits fixed by the court of law. See also Sentence; 
Sentencing guidelines. 
Index. A book containing references, alphabetically ar
ranged, to the contents of a series or collection of doc
uments or volumes; or a section (normally at the end) of 
a single volume or set of volumes containing such refer
ences to its contents. 
INDIAN TRIBAL PROPERTY 
Statistical indexes are also used to track or measure 
changes in the economy (see, e.g., Consumer Price Index) 
and movement in stock markets (e.g., Standard & Poor's 
Index). Such indexes are usually keyed to a base year, 
month, or other period of comparison. 
In mortgage financing, term used to determine adjust
able-rate mortgage interest rates after the discount peri
od ends. Common indexes for ARMs are one-year Trea
sury securities and the national average cost of funds to 
savings and loan associations. 
Index animi sermo lind;}ks ren;}may s,)rmow/. Lan
guage is the exponent of the intention. The language of 
a statute or instrument is the best guide to the inten
tion. 
Index fund. See Mutual fund. 
Indexing. Adjusting or tying wages, pensions, mortgag
es, or other debt issues to some measure of inflation (e.g., 
Consumer Price Index) to preserve the purchasing power 
of future benefits and investment earnings. 
Index offenses. The term designating the eight classes 
of offenses reported annually by the FBI in its Uniform 
Crime Reports. They include: murder, forcible rape, 
robbery, burglary, aggravated assault, larceny over a 
specified amount, arson, and motor vehicle theft. 
Index options. See Option. 
Indian Claims Commission. The Indian Claims Com
mission hears and determines claims against the United 
States on behalf of any Indian tribe, band, or other 
identifiable group of American Indians residing within 
the United States. 
Indian country. Part of public domain set apart for 
use, occupancy and protection of Indian peoples. 
Youngbear v. Brewer, 415 F.Supp. 807, 809. See Indian 
lands; Indian reservation; Indian tribal property. 
Indian lands. Real property ceded to the U.S. by Indi
ans, commonly to be held in trust for Indians. See 
Indian country; Indian reservation; Indian tribal property; 
Indian tribe. 
Indian reservation. A part of public domain set aside 
by proper authority for use and occupation of tribe or 
tribes of Indians, United States v. Parton, D.C.N.C., 46 
F.Supp. 843, 844, and under superintendence of the 
government which retains title to the land, Healing v. 
Jones, D.C.Ariz., 210 F.Supp. 125, 180. See also Execu
tive order Indian reservation. 
Indian title. Claim of Indian tribes of right, because of 
immemorial occupancy, to occupy certain territory to 
exclusion of any other Indians. Northwestern Bands of 
Shoshone Indians v. U. S., Ct.Cl., 324 U.S. 335, 65 S.Ct. 
690, 692, 89 L.Ed. 985. Permissive right of occupancy 
granted by federal government to aboriginal possessors 
of the land; it is mere possession not specifically recog
nized as ownership and may be extinguished by federal 
government at any time. U. S. v. Gemmill, C.A.Cal., 
535 F.2d 1145, 1147. 
Indian tribal property. Property in which an Indian 
tribe has a legally enforceable interest. Such term

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INDIAN TRIBAL PROPERTY 
refers to real property, the title to which is vested in 
United States but held in trust for the Indian tribe. 
Such property, depending on context in which the term 
is used, may or may not be "public property" of the 
United States. Chief Seattle Properties, Inc. v. Kitsap 
County, 86 Wash.2d 7, 541 P.2d 699, 704. See Indian 
lands; Indian reservation. 
Indian tribe. A separate and distinct community or 
body of the aboriginal Indian race of men found in the 
United States. Montoya v. U. S., 180 U.S. 261, 21 S.Ct. 
358, 45 L.Ed. 521. An "Indian tribe" within meaning of 
Indian Nonintercourse Act is a body of Indians of the 
same or similar race, united in a community under one 
leadership or government, and inhabiting a particular, 
though sometimes ill-defined, territory. Mashpee Tribe 
v. New Seabury Corp., D.C.Mass., 427 F.Supp. 899, 902. 
For purpose of statute governing federal court juris
diction of actions brought by Indian tribe or band, "Indi
an tribes or bands" are separate communities of citizens 
of Indian descent, possibly with a common racial origin, 
possessing the power of a sovereign to regulate their 
internal and social relations. Navajo Tribal Utility 
Authority v. Arizona Dept. of Revenue, C.A.Ariz., 608 
F.2d 1228, 1231. 
Indicare lind;)keriy/. Lat. In the civil law, to show or 
discover. To fix or tell the price of a thing. To inform 
against; to accuse. 
Indicatif. An abolished English writ by which a prose
cution was in some cases removed from a court-christian 
to the queen's bench. 
Indication. In the law of evidence, a sign or token; a 
fact pointing to some inference or conclusion. See Infer
ence. 
Indicative evidence. This is not evidence properly so 
called, but the mere suggestion of evidence proper, 
which may possibly be procured if the suggestion is 
followed up. See Inference. 
Indicavit lind;)keyv;)t/. In old English practice, a writ 
of prohibition that lies for a patron of a church, whose 
clerk is sued in the spiritual court by the clerk of 
another patron, for tithes amounting to a fourth part of 
the value of the living. 3 Bl.Comm. 91. So termed from 
the emphatic word of the Latin form. 
Indicia lindis(h)(i)y;)/. Signs; indications. Circumstanc
es which point to the existence of a given fact as proba
ble, but not certain. For example, "i ndicia of partner
ship" are any circumstances which would induce the 
belief that a given person was in reality, though not 
ostensibly, a member of a given firm. See Circumstantial 
evidence. 
The term is much used in the civil law in a sense 
nearly or entirely synonymous with circumstantial evi
dence. It denotes facts which give rise to inferences, 
rather than the inferences themselves. 
Indicia of title. Generally, a document evidencing title 
to property, real or personal; e.g. carbon copy of bill of 
sale to automobile. Edwards v. Central Motor Co., 38 
Tenn.App. 577, 277 S.W.2d 413, 416. 
772 
Indicium lindis(h)(i)y;)m/. In the civil law, a sign or 
mark. A species of proof, answering very nearly to the 
circumstantial evidence of the common law. 
Indict lindayt/. See Indictment. 
Indictable offense lindayt;)b;)l/. Subject to being indict
ed. An offense, the nature of which is proper or neces
sary to be prosecuted by process of indictment. Indict
able offenses embrace common-law offenses or statutory 
offenses the punishments for which are infamous. See 
also Indictment. 
Indicted lindayt;)d/. Charged in an indictment with a 
criminal offense. See Indictment; Jury. 
Indictee I indaytiy I. A person indicted. 
Indictio lindiksh(iy)ow/. In old public law, a declara
tion; a proclamation. Indictio belli, a declaration or 
indiction of war. An indictment. 
Indictment lindaytm;)nt/. An accusation in writing 
found and presented by a grand jury, legally convoked 
and sworn, to the court in which it is impaneled, charg
ing that a person therein named has done some act, or 
been guilty of some omission, which by law is a public 
offense, punishable on indictment. A formal written 
accusation originating with a prosecutor and issued by a 
grand jury against a party charged with a crime. An 
indictment is referred to as a "true bill", whereas failure 
to indict is called a "no bill". 
An indictment is merely a charge which must be 
proved at trial beyond a reasonable doubt before defen
dant may be convicted. U. S. v. Zovluck, D.C.N.Y., 274 
F.Supp. 385, 390. An indictment is only an accusation; 
it is the physical means by which a defendant is brought 
to trial. Its sole purpose is to identify defendant's 
alleged offense, and it is not evidence that offense 
charged was committed and may not be considered as 
evidence by jury during its deliberations. U. S. v. Gla
ziou, C.A.N.Y., 402 F.2d 8, 15. 
An offense which may be punished by death shall be 
prosecuted by indictment. An offense which may be 
punished by imprisonment for a term exceeding one 
year or at hard labor shall be prosecuted by indictment 
or, if indictment is waived, it may be prosecuted by 
information. Any other offense may be prosecuted by 
indictment or by information. Fed.R.Crim.P. 7. 
See also Grand jury; Information; Presentment; True 
bill. 
Joinder of indictments. See Joinder. 
Joint indictment. When several offenders are joined in 
the same indictment, as when principals in the first and 
second degree, and accessories before and after the fact, 
are all joined in the same indictment. 
Indictment de felony est contra pacem domini regis, 
coronam et dignitatem suam, in genere et non in 
individuo; quia in AngUa non est interregnum 
lindaytm;)nt diy fel;)niy est kontr;) peys;)m dom;)nay 
riyj;)s, k;)rown;)m et dign;)teyt;)m s(y)uw;)m, in jeneriy et 
non in ind;)vidyuwow, kway;) in reIJgliy;) non est 
int;)regn;)m/. Indictment for felony is against the peace

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of our lord the king, his crown and dignity in general, 
and not against his individual person; because in Eng
land there is no interregnum. 
Indictor lindayt;)r/. He who causes another to be indict
ed. The latter is sometimes called the "indictee." 
In diem lin day;)m/. For a day; for the space of a day. 
See also Per diem. 
Indifferent. Impartial; unbiased; disinterested. 
Indigena lindij;)n;)/. In old English law, a subject born; 
one born within the realm, or naturalized by act of 
parliament. The opposite of "alienigena" (q.v.). 
Indigent lind;)j;)nt/. In a general sense, one who is 
needy and poor, or one who has not sufficient property 
to furnish him a living nor anyone able to support him 
to whom he is entitled to look for support. Term com
monly used to refer to one's financial ability, and ordi
narily indicates one who is destitute of means of com
fortable subsistence so as to be in want. Powers v. 
State, 194 Kan. 820, 402 P.2d 328, 332. 
Indigent defendant. A person indicted or complained 
of who is without funds or ability to hire a lawyer to 
defend him is, in most instances, entitled to appointed 
counsel to represent him at every stage of the criminal 
proceedings, through appeal, consistent with the protec
tion of the Sixth and Fourteenth Amendments to U.S. 
Const. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 
792, 9 L.Ed.2d 799; Fed.R.Crim.P. 44; 18 U.S.C.A. 
§ 3006A. Provision also may be made for waiver of 
court costs and fees for indigent defendants in appealing 
a case (e.g. Fed.R.App.P. 24); and, the financial condi
tion of the defendant will be considered in imposing 
fines (see 18 U.S.C.A. § 3572). See also Counsel, right to; 
In forma pauperis; Pauper's oath. 
Indignity lindign;)tiy/. In the law of divorce, a species 
of cruelty addressed to the mind, sensibilities, self-re
spect, or personal honor of the subject, rather than to 
the body. "Indignities" justifying grant of divorce may 
consist of vulgarity, un� erited reproach, habitual con
tumely, studied neglect, intentional incivility, manifest 
disdain, abusive language, or malignant ridicule. Har
grove v. Hargrove, Pa.Super., 381 A.2d 143, 148. See 
Mental cruelty. 
Indirect. Not direct in relation or connection; not hav
ing an immediate bearing or application; not related in 
the natural way. Circuitous, not leading to aim or 
result by plainest course or method or obvious means, 
roundabout, not resulting directly from an act or cause 
but more or less remotely connected with or growing out 
of it. Cahen Trust v. U.S., C.A.IlL, 292 F.2d 33, 36. 
Almost always used in law in opposition to "direct," 
though not the only antithesis of the latter word, as the 
terms "collateral" and "cross" are sometimes used in 
contrast with "direct." 
As to indirect Confession; Contempt; Costs, and Tax, 
see those titles. 
Indirect attack. See Colla teral attack. 
Indirect evidence. Such evidence which only tends to 
establish the issue by proof of various facts sustaining by 
INDIVIDUAL 
their consistency the hypothesis claimed. It consists of 
both inferences and presumptions. Proof of collateral 
circumstances, from which a fact in controversy, not 
directly attested to by direct evidence (witnesses or 
documents), may be inferred. Proof of some other fact 
or facts from which, taken either singly or collectively, 
existence of particular fact in question may be inferred 
as necessary or probable consequence. United Textile 
Workers of America, AFL--CIO, Local Union No. 120 v. 
Newberry Mills, Inc., D.C.S.C., 238 F.Supp. 366, 372. 
See also Circumstantial evidence; Inference; Presumption. 
Indirect tax. A tax upon some right or privilege or 
corporate franchise; e.g. privilege tax; franchise tax. 
Madison Suburban Utility Dist. of Davidson County v. 
Carson, 191 Tenn. 300, 232 S.W.2d 277, 280. A tax laid 
upon the happening of an event as distinguished from 
its tangible fruits. Chickering v. Commissioner of Inter
nal Revenue, C.C.A.Mass., 118 F.2d 254, 258. 
In disjunctivis sufficit alteram partem esse veram.Jin 
disj;)1)(k)tayv;)s s;)f;)S;)t 61t;)r;)m part;)m esiy vir;)m/. In 
disjunctives it is sufficient that either part be true. 
Where a condition is in the disjunctive, it is sufficient if 
either part be performed. 
Indispensable. That which cannot be spared, omitted, 
or dispensed with. 
Indispensable evidence. That without which a particu
lar fact cannot be proved. 
Indispensable parties. One without whose presence no 
adequate judgment can be entered determining rights of 
parties before a court. Insurance Co. of North America 
v. Allied Crude Vegetable Oil Refining Corp., 89 N.J.Su
per. 518, 215 A.2d 579, 588. Those who have such an 
interest in the controversy that the court cannot render 
a final decree without affecting their interests. Ohmart 
v. Dennis, 188 Neb. 260, 196 N.W.2d 181, 184. Those 
who must be joined because non joinder prejudices their 
rights and those of parties already joined such that the 
action cannot continue without them. Wright Farms 
Const., Inc. v. Kreps, D.C.Vt., 444 F.Supp. 1023, 1028. 
Those without whom the action cannot proceed, and 
must be joined even if by such joinder the court loses 
jurisdiction over the controversy. Milligan v. Anderson, 
C.A.Okl., 522 F.2d 1202, 1205. Fed.R.Civil P. 19. See 
Joinder (Joinder of parties); Necessary Parties; Parties. 
Indistanter lind;)stren�r/. Forthwith; without delay. 
Inditee lindaytiy/. L. Fr. In old English law, a person 
indicted. 
Individual. As a noun, this term denotes a single per
son as distinguished from a group or class, and also, very 
commonly, a private or natural person as distinguished 
from a partnership, corporation, or association; but it is 
said that this restrictive signification is not necessarily 
inherent in the word, and that it may, in proper cases, 
include artificial persons. See also Person. 
As an ad jective, "individual" means pertaining or 
belonging to, or characteristic of, one single person, 
either in opposition to a firm, association, or corpora
tion, or considered in his relation thereto.

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INDIVIDUAL ASSETS 
Individual assets. In the law of partnership, property 
belonging to a member of a partnership as his separate 
and private property, apart from the assets or property 
belonging to the firm as such or the partner's interest 
therein. 
Individual debts. Such as are due from a member of a 
partnership in his private or personal capacity, as distin
guished from those due from the firm or partnership. 
Individually. Separately and personally, as distin
guished from jointly or officially, and as opposed to 
collective or associate action or common interest. 
Individual proprietorship. See Sole proprietor ship. 
Individual retirement account (I.R.A.). Individuals 
with earned income are permitted, under certain cir
cumstances, to set aside a limited amount of such in
come per year for a retirement account. The amount so 
set aside can be deducted by the taxpayer and is subject 
to income tax only upon withdrawal. The Internal 
Revenue Code limits the amount of this contribution 
that can be deducted for adjusted gross income depend
ing upon (1) whether the taxpayer or spouse is an active 
participant in an employer-provided qualified retire
ment plan and (2) the magnitude of the taxpayer's 
adjusted gross income before the IRA contribution is 
considered. I.R.C. § 219. Specific statutory require
ments are established for the establishment of the trust 
or custodial account, contributions, and withdrawal of 
such amounts with penalties provided for failure to 
comply. I.R.C. § 408(a). See also Keogh Plan. 
Individual system of location. A term formerly used 
in some states to designate the location of public lands 
by surveys, in which the land called for by each warrant 
was separately surveyed. 
Indivisible. Not susceptible of division or apportion
ment; inseparable; entire. Thus, a contract, covenant, 
consideration, etc., may be divisible or indivisible; i.e., 
separable or entire. See also Contract. 
Indivisum /ind�vayz�m/. Lat. That which two or more 
persons hold in common without partition; undivided. 
Indorsee / �ndorsiy lindorsiy /. The person to whom or 
for whose benefit an instrument, document or other 
commercial paper is indorsed, usually referring to the 
indorser's transferee. 
Indorsee in due course. An indorsee in due course is 
one who, in good faith, in the ordinary course of busi
ness, and for value, before its apparent maturity or 
presumptive dishonor, and without knowledge of its 
actual dishonor, acquires a negotiable instrument duly 
indorsed to him, or indorsed generally, or payable to the 
bearer. 
Indorsement /�nd6rsm�nt/. The act of a payee, drawee, 
accommodation indorser, or holder of a bill, note, check, 
or other negotiable instrument, in writing his name 
upon the back of the same, with or without further or 
qualifying words, whereby the property in the same is 
assigned and transferred to another. U.C.C. § 3-202 et 
seq. 
774 
The signature on an instrument of a person who has 
the liability thereon of an indorser. Any signature in 
an ambiguous capacity is an indorsement. U.C.C. 
§ 3-402. As applied to documents, the term means the 
signature thereon of a person to whose order the doc
ument runs. 
An indorsement must be written by or on behalf of 
the holder and on the instrument or on a paper so 
firmly affixed thereto as to become a part thereof. An 
indorsement is effective for negotiation only when it 
conveys the entire instrument or any unpaid residue. If 
it purports to be of less it operates only as a partial 
assignment. U.C.C. § 3-202. 
Accommodation indorsement. In the law of negotiable 
instruments, one made by a third person without any 
consideration, but merely for the benefit of the holder of 
the instrument, or to enable the maker to obtain money 
or credit on it. Unless otherwise explained, it is under
stood to be a loan of the indorser's credit without restric
tion. Accommodation indorser is not liable to party 
accommodated. U.C.C. § 3-415. 
Blank indorsement. One made by the mere writing of 
the indorser's name on the back of the note or bill, 
without mention of the name of any person in whose 
favor the indorsement is made, but with the implied 
understanding that any lawful holder may fill in his 
own name above the indorsement if he so chooses. An 
indorsement in blank specifies no particular indorsee 
and may consist of a mere signature. An instrument 
payable to order and indorsed in blank becomes payable 
to bearer and may be negotiated by delivery alone until 
specially indorsed. The holder may convert a blank 
indorsement into a special indorsement by writing over 
the signature of the indorser in blank any contract 
consistent with the character of the indorsement. 
U.C.c. § 3-204(2), (3). 
Collection indorsement. See that title. 
Conditional indorsement. An indorsement that is re
strictive because it purports to limit when the instru
ment can be paid or further transferred, or to condition 
payment or further transfer on the occurrence of a 
specified event. One by which the indorser annexes 
some condition (other than the failure of prior parties to 
pay) to his liability. The condition may be either 
present or subsequent. Special indorsement with addi
tional words of condition. U.C.C. § 3-205(a). 
Full indorsement. One by which the indorser orders the 
money to be paid to some particular person by name; it 
differs from a blank indorsement, which consists merely 
in the name of the indorser written on the back of the 
instrument. 
General indorsement. See Blank indorsement, above. 
Irregular indorsement. An indorsement out of the chain 
of title which is ordinarily added to an instrument prior 
to delivery to the payee. Also known as an anomalous 
indorsement. E.g., M makes a note payable to P; Mi s 
the maker and P is the payee. If when the note is 
executed by M, I also signs in the margin of the instru-

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775 
ment, or on the back of it, I's indorsement is irregular. 
An irregular indorsement is notice of accommodation 
status. V.C.C. § 3-415(4). 
Qualified indorsement. One which restrains or limits, 
or qualifies or enlarges, the liability of the indorser, in 
any manner different from what the law generally im
ports as his true liability, deducible from the nature of 
the instrument. Stover Bank v. Welpman, Mo.App., 284 
S.W. 177, 180. A transfer of a bill or promissory note to 
an indorsee, without any liability to the indorser. Such 
is accomplished by adding after signature words such as 
"without recourse" or the like. U.C.c. §§ 3-414(1), 3-
417(2)(3). 
Restrictive indorsement. One which stops the negotia
bility of the instrument, or which contains such a defi
nite direction as to the payment as to preclude the 
indorsee from making any further transfer of the instru
ment. An indorsement is restrictive which either: (a) is 
conditional; or (b) purports to prohibit further transfer 
of the instrument; or (c) includes the words "for collec
tion", "for deposit", "pay any bank", or like terms 
signifying a purpose of deposit or collection; or (d) 
otherwise states that it is for the benefit or use of the 
indorser or of another person. V.C.C. § 3-205. 
Special indorsement. An indorsement that specifies a 
person to whom or to whose order the instrument is 
thereafter payable, V.C.C. § 3-204(1), or, in the case of a 
document, as the person to whom or to whose order the 
goods should be delivered. Any instrument specially 
indorsed becomes payable to the order of the special 
indorsee and may be further negotiated only by his 
indorsement. 
Trust indorsement. An indorsement of an instrument 
that is restrictive because it states that it is for the 
benefit or use of the indorser or of another person. 
V.C.C. § 3-205(d). 
Unauthorized indorsement. One made without actual, 
implied or apparent authority and includes a forgery. 
V.C.C. § 3-404. 
Without recourse. See Qualified indorsement, above. 
Indorser I;mdors;}r/. Person who indorses; i.e., being 
the payee or holder, writes his name on the back of a 
negotiable instrument. One who signs his name as 
payee on the back of a check to obtain the cash or credit 
represented on its face. 
A signer of an instrument who engages to pay it only 
upon dishonor and any necessary notice of dishonor and 
protest. V.C.C. § 3-414(1). As applied to documents, 
the term means the person who signs a document that 
runs to her order. 
In dorso lin dorsow/. On the back. 2 Bl.Comm. 468. 
In dorso recordi, on the back of the record. Hence the 
English indorse, indorsement, etc. 
In dubiis, benigniora prreferenda sunt lin d(y)uwbiy;}s, 
b;migniyor;} pref;}rend;} s;}nt/. In doubtful cases, the 
more favorable views are to be preferred; the more 
liberal interpretation is to be followed. 
INDUCTION 
In dubiis, magis dignum est accipiendum lin d(y)uw
biy;}s, meyj;}s dign�m est �ksipiyend�m/. In doubtful 
cases, the more worthy is to be accepted. 
In dubiis, non prresumitur pro testamento lin d(y)uw
biy�s, non pr�z(y)uwm�t�r prow test�mentow/. In cases 
of doubt, the presumption is not in favor of a will. 
In dubio lin d(y)uwbiyow/. In doubt; in a state of 
uncertainty, or in a doubtful case. 
In dubio, hrec legis constructio quam verba osten
dunt lin d(y)uwbiyow, hiyk liyj�s k�nstr;}ksh(iy)ow 
kwrem v;}rb� �stend�nt!. In a case of doubt, that is the 
construction of the law which the words indicate. 
In dubio, pars mitior est sequenda lin d(y)uwbiyow, 
parz maysh(iy);}r est s�kwend�/. In doubt, the milder 
course is to be followed. 
In dubio, pro lege fori lin d(y)uwbiyow, prow liyjiy 
foray I. In a doubtful case, the law of the forum is to be 
preferred. "A false maxim." 
In dubio, sequendum quod tutius est lin d(y)uwbiyow, 
s�kwend�m kwod t(y)uwsh(iy)�s est!. In doubt, the safer 
course is to be adopted. 
Indubitable proof lind(y)uwb�t�b�l pruwf/. Evidence 
which is not only found credible, but is of such weight 
and directness as to make out the facts alleged beyond a 
doubt. See Prima facie. 
Induce. To bring on or about, to affect, cause, to influ
ence to an act or course of conduct, lead by persuasion 
or reasoning, incite by motives, prevail on. See also 
Seduce. 
Inducement. In contracts, the benefit or advantage 
which the promisor is to receive from a contract is the 
inducement for making it. To cause party to choose one 
course of conduct rather than another. Stoltz v. Dela
ware Real Estate Com'n, Del.Super., 473 A.2d 1258, 
1264. 
In criminal law, motive; that which leads or tempts to 
the commission of crime. For purposes of entrapment 
defense, may be defined as government conduct which 
creates substantial risk that undisposed person or other
wise law-abiding citizen would commit the offense. V.S. 
v. Ortiz, C.A.V tah, 804 F.2d 11 61, 1165. See Entrapment. 
Inducire lind(y)uws(h)iyiy/. In international law, a 
truce; a suspension of hostilities; an agreement during 
war to abstain for a time from warlike acts. 
Induct. To put in enjoyment or possession, especially to 
introduce into possession of an office or benefice, with 
customary ceremonies. To bring in, initiate; to put 
formally in possession; to enter formerly into military 
service; to inaugurate or install. See Induction. 
Inductio lind;}ksh(iy)ow/. Lat. In the civil law, obliter
ation, by drawing the pen over the writing. 
Induction. Act or process of inducting; e.g. process of 
inducting civilian into military service. 
Inducti sunt in carcerem et imparcati lind;}ktay s;}nt 
in kars�r�m et imparkeytay/. See Imparcare.

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INDULTO 
Indulto lind�1tow/. In Ecclesiastical law, a dispensation 
granted by the pope to do or obtain something contrary 
to the common law. 
In old Spanish law, the condonation or remission of 
the punishment imposed on a criminal for his offense. 
This power was exclusively vested in the king. 
Indument lindyuwm:mt/. Endowment (q.v.). 
In duplo lin dCy)uwplow/. In double. Damna in duplo, 
double damages. 
Industrial development bonds. See Bond. 
Industrial disease. In law of worker's compensation, 
physical disorder which is caused by or is incident to 
particular occupation. Lumbermen's Mut. Cas. Co. v. 
Rozan, 92 N.H. 328, 30 A.2d 474, 475. See also Occupa
tional disease. 
Industrial goods. Goods which are destined and de
signed to produce other goods as contrasted with con
sumer goods. 
Industrial relations. Term includes all phases of rela
tions between employer and employee, including collec
tive bargaining, safety, employee benefits, etc. 
Industrial revenue bond. See Bond. 
Industriam, per Ip�r ind�striy�m/. Lat. A qualified 
property in animals ferre naturre may be acquired per 
industriam, i.e., by a man's reclaiming and making them 
tame by art, industry, and education; or by so confining 
them within his own immediate power that they cannot 
escape and use their natural liberty. 
Industry. Any department or branch of art, occupation, 
or business conducted as a means of livelihood or for 
profit; especially, one which employs much labor and 
capital and is a distinct branch of trade. Dessen v. 
Department of Labor and Industries of Washington, 190 
Wash. 69, 66 P.2d 867, 869. 
Term is susceptible of more than one meaning: it may 
be defined in terms of end uses for which various prod
ucts compete; it may also denote an aggregate of enter
prises employing similar production and marketing fa
cilities and producing products having markedly similar 
characteristics. U.S. v. Continental Can Co., N.Y., 378 
U.S. 441, 84 S.Ct. 1738, 1740, 12 L.Ed.2d 953. 
Industry wide liability. See Enterprise liabili ty. 
In eadem causa lin iyeyd�m k6z�/. In the same state or 
condition. 
Inebriate I �niybriy�tI. A person under the influence of 
or addicted to the use of intoxicating liquors. 
Ineligibility. Disqualification or legal incapacity to be 
elected to an office or appointed to a particular position. 
Thus, an alien or naturalized citizen is ineligible to be 
elected president of the United States. This incapacity 
arises from various causes, and a person may be incapa
ble of being elected to one office who may be elected to 
another; the incapacity may also be perpetual or tempo
rary. See also Incapacity. 
776 
In emulationem vicini lin emCy)�leyshiy6wn�m v�say
nay/. In envy or hatred of a neighbor. Where an act is 
done, or action brought, solely to hurt or distress anoth
er, it is said to be in emulationem vicini. 
In eo quod plus sit, semper inest et minus lin iyow 
kwod pl�s sit, semp�r inest et mayn�s/. In the greater 
is always included the less also. 
In equity. In a court of equity, as distinguished from a 
court of law; in the purview, consideration, or contem
plation of equity; according to the doctrines of equity. 
See Equitable; Equity. 
Inescapable peril. Within last clear chance doctrine, 
means peril which the plaintiff is helpless to avoid by 
his own efforts, but which requires action on part of 
defendant to avert it. Melenson v. Howell, 344 Mo. 
11 37, 130 S.W.2d 555, 560. 
In esse lin esiy/. In being. Actually existing. Distin
guished from in posse, which means "that which is not, 
but may be." A child before birth is in posse; after 
birth, in esse. 
Inesse potest donationi, modus, conditio sive causa; 
ut modus est; si conditio; quia causa linesiy p6wt�st 
d�neyshiy6wnay, m6wd�s, k�ndish(iy)ow sayviy k6z�; �t 
m6wd�s est; say k�ndish(iy)ow; kway� k6z�/. In a gift 
there may be manner, condition, and cause; as rut} 
introduces a manner; if lsi}, a condition; because [quia}, 
a cause. 
In est de jure linest diy juriy/. (Lat.) It is implied of 
right or by law. 
In evidence. Included in the evidence already adduced. 
The "facts in evidence" are such as have already been 
proved in the cause. 
Inevitable. Incapable of being avoided; fortuitous; 
transcending the power of human care, foresight, or 
exertion to avoid or prevent, and therefore suspending 
legal relations so far as to excuse from the performance 
of contract obligations, or from liability for consequent 
loss. 
Inevitable accident. An unavoidable accident; one pro
duced by an irresistible physical cause; an accident 
which cannot be prevented by human skill or foresight, 
but results from natural causes, such as lightning or 
storms, perils of the sea, inundations or earthquakes, or 
sudden death or illness. By irresistible force is meant 
an interposition of human agency, from its nature and 
power absolutely uncontrollable. 
An accident is "inevita ble", so as to preclude recovery 
on ground of negligence, if person by whom it occurs 
neither has nor is legally bound to have sufficient power 
to avoid it or prevent its injuring another. Stephens v. 
Virginia Elec. & Power Co., 184 Va. 94, 34 S.E.2d 374, 
377. 
The highest degree of caution that can be used is not 
required. It is enough that it is reasonable under the 
circumstances; such as is usual in similar cases, and has 
been found by long experience to be sufficient to answer 
the end in view,-the safety of life and property. Inev-

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777 
itable accident is only when the disaster happens from 
natural causes, without negligence or fault on either 
side, and when both parties have endeavored, by every 
means in their power, with due care and caution, and 
with a proper display of nautical skill, to prevent the 
occurrence of the accident. The Philip J. Kenny, C.C.A. 
N.J., 60 F.2d 457, 458. 
See also Act of God; Unavoidable accident. 
Inevitable discovery rule. An exception to the exclu
sionary rule which permits evidence to be admitted in a 
criminal case, even though it was obtained unlawfully, 
when the government can show that discovery of the 
evidence by lawful means was inevitable. U.S. v. Gor
ski, C.A.Conn., 852 F.2d 692, 695. 
In excambio lin �kskremb(i)yow/. In exchange. Formal 
words in old deeds of exchange. 
Inexcusable neglect. Such neglect which will preclude 
setting aside of default judgment, implies something 
more than the unintentional inadvertence or neglect 
common to all who share the ordinary frailties of man
kind. Montez v. Tonkawa Village Apartments, 215 
Kan. 59, 523 P.2d 351, 356. 
In execution and pursuance of lin eks�kyuwsh�n rend 
p�rs(y)uw�ns QV I. Words used to express the fact that 
the instrument is intended to carry into effect some 
other instrument, as in case of a deed in execution of a 
power. 
In exitu lin egz�t(y)uw/. In issue. De materia in exitu, 
of the matter in issue. 
In expositione instrumentorum, mala grammatica, 
quod fieri potest, vitanda est lin eksp�zishiy6wniy 
instr�m�nt6r�m, mrel� gr�mret�k�, kwod fay�ray p6wt�st, 
v�trend� est/. In the construction of instruments, bad 
grammar is to be avoided as much as possible. 
In extenso lin �kst€msow/. In extension; at full length; 
from beginning to end, leaving out nothing. 
In extremis lin �kstriym�s/. In extremity; in the last 
extremity; in the last illness. Agens in extremis, being 
in extremity. Declarations in extremis, dying declara
tions. In extremis does not always mean in articulo 
mortis. In re Mallery's Will, 127 Misc. 784, 217 N.Y.S. 
489, 492. 
In facie curire lin feys(h)iy(iy) kyuriy(iy)I . In the face of 
the court. 
In facie ecclesire lin feys(h)iy(iy) �kliyziy(iy)/. In the 
face of the church. A term applied in the law of 
England to marriages, which are required to be solem
nized in a parish church or public chapel, unless by 
dispensation or license. 
In faciendo lin feys(h)iyendow I. In doing; in feasance; 
in the performance of an act. 
In fact. Actual, real; as distinguished from implied or 
inferred. Resulting from the acts of parties, instead of 
from the act or intendment of law. 
In facto lin frektow/. In fact; in deed. In facto dicit, in 
fact says. 
INFANT 
In facto quod se habet ad bonum et malum, magis de 
bono quam de malo lex intendit lin frektow kwod siy 
heyb�t red b6wn�m et mrel�m, meyj�s diy b6wnow kwrem 
diy mrelow leks �ntend�tI. In an act or deed which 
admits of being considered as both good and bad, the law 
intends more from the good than from the bad; the law 
makes the more favorable construction. 
Infamia linfeym(i)y�/. Lat. Infamy; ignominy or dis
grace. 
By infamia juris is meant infamy established by law 
as the consequence of crime; infamia facti is where the 
party is supposed to be guilty of such crime, but it has 
not been judicially proved. 
Infamis linfeym�s/. Lat. In Roman law, a person 
whose right of reputation was diminished (involving the 
loss of some of the rights of citizenship) either on ac
count of his infamous avocation or because of conviction 
for crime. 
Infamous linf�m�s/. Shameful or disgraceful. Possess
ing notorious reputation. Famous or well known in a 
derogatory sense. 
Infamous crime. See Crime. 
Infamous punishment. See Punishment. 
Infamy linf�miy/. Condition of being infamous. A 
qualification of a man's legal status produced by his 
conviction of an infamous crime and the consequent loss 
of honor and credit, which, at common law, rendered 
him incompetent as a witness, and by statute in some 
jurisdictions entails other disabilities. See Civil death. 
Infancy. Minority; the state of a person who is under 
the age of legal majority,-at common law, twenty-one 
years; now, generally 18 years. According to the sense 
in which this term is used, it may denote the condition 
of the person merely with reference to his years, or the 
contractual disabilities which non-age entails, or his 
status with regard to other powers or relations. 
At common law, children under the age of seven are 
conclusively presumed to be without criminal capacity, 
those who have reached the age of fourteen are treated 
as fully responsible, while as to those between the ages 
of seven and fourteen there is a rebuttable presumption 
of criminal incapacity. Many states have made some 
change by statute in the age of criminal responsibility 
for minors. In addition, all jurisdictions have adopted 
juvenile court legislation providing that some or all 
criminal conduct by those persons under a certain age 
(usually eighteen) must or may be adjudicated in the 
juvenile court rather than in a criminal prosecution. 
See also Child; Children; Minor. 
Infangenthef linfreIJ�n(Jiyf/. In old English law, a privi
lege of lords of certain manors to judge any thief taken 
within their fee. See Outfangthef. 
Infans linfrenz/. Lat. In the civil law, a child under the 
age of seven years; so called "quasi impos fandi" (as not 
having the faculty of speech). 
Infant. See Child; Children; Infancy; Minor.

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INFANTIA 
Infantia linfrensh(iy)�/. Lat. In the civil law, the peri
od of infancy between birth and the age of seven years. 
Infanticide linfrent�sayd/. The murder or killing of an 
infant soon after its birth. The fact of the birth distin
guishes this act from "feticide" or "procuring abortion," 
which terms denote the destruction of the fetus in the 
womb. See also Prolicide. 
Infanzon linfansown/. In Spanish law, a person of 
noble birth, who exercises within his domains and inher
itance no other rights and privileges than those con
ceded to him. 
In favorabilibus magis attenditur quod prodest 
quam quod nocet lin feyv�r�bil�b�s meyj�s �tend�t�r 
kwod prowdest kwrem kwod nos�tI . In things favored, 
what profits is more regarded than what prejudices. 
In favorem libertatis lin f�vor�m lib�rteyt�s/. In favor 
of liberty. 
In favorem vitre lin f�vor�m vaytiy/. In favor of life. 
In favorem vitre, libertatis, et innocentire, omnia 
prresumuntur lin f�vor�m vaytiy, lib�rteyt�s, ed in�sen
shiyiy, omniy� priyzy�m�nt�r/. In favor of life, liberty, 
and innocence, every presumption is made. 
Infensare curiam /inf�nseriy kyuriy�m/. Lat. An ex
pression applied to a court when it suggested to an 
advocate something which he had omitted through mis
take or ignorance. 
In feodo lin fyuwdow/. In fee. Seisitus in feodo, seised 
in fee. 
Infeoffment linfiyfm�nt;ofero I. The act or instrument 
of feoffment. 
Inference. In the law of evidence, a truth or proposition 
drawn from another which is supposed or admitted to be 
true. A process of reasoning by which a fact or proposi
tion sought to be established is deduced as a logical 
consequence from other facts, or a state of facts, already 
proved or admitted. A logical and reasonable conclu
sion of a fact not presented by direct evidence but which, 
by process of logic and reason, a trier of fact may 
conclude exists from the established facts. State v. 
Hyde, Mo.App., 682 S.W.2d 103, 106. Computer Identics 
Corp. v. Southern Pacific Co., C.A.Mass., 756 F.2d 200, 
204. Inferences are deductions or conclusions which 
with reason and common sense lead the jury to draw 
from facts which have been established by the evidence 
in the case. 
See also Reasonable inference rule. Compare Presump
tion. 
Inference on inference, rule of. Means that one pre
sumption or inference may not be based upon another. 
McManimen v. Public Service Co. of Northern Illinois, 
317 Ill.App. 649, 47 N.E.2d 385. 
Inferential. In the law of evidence, operating in the way 
of inference; argumentative. Presumptive evidence is 
sometimes termed "inferential". 
778 
Inferential facts. Such as are established not directly 
by testimony or other evidence, but by inferences or 
conclusions drawn from the evidence. See Inference. 
Inferior. One who, in relation to another, has less power 
and is below him; one who is bound to obey another. 
He who makes the law is the superior; he who is bound 
to obey it, the inferior. 
Inferior court. This term may denote any court subor
dinate to the chief appellate tribunal in the particular 
judicial system (e.g. trial court); but it is also commonly 
used as the designation of a court of special, limited, or 
statutory jurisdiction, whose record must show the exist
ence and attaching of jurisdiction in any given case, in 
order to give presumptive validity to its judgment. 
Infeudation linfyuwdeysh�n/. The placing in posses
sion of a freehold estate; also the granting of tithes to 
laymen. 
Inficiari linfis(h)iyeray/. Lat. In the civil law, to deny; 
to deny one's liability; to refuse to pay a debt or restore 
a pledge; to deny the allegation of a plaintiff; to deny 
the charge of an accuser. 
Inficiatio linfis(h)iyeysh(iy)ow/. Lat. In the civil law, 
denial; the denial of a debt or liability; the denial of the 
claim or allegation of a party plaintiff. 
In fictione juris semper requitas existit lin fikshiyow
niy jur�s semp�r iykw�tres �gzist�tI. In the fiction of 
law there is always equity; a legal fiction is always 
consistent with equity. 
Infidel. One who does not believe in the existence of a 
God who will reward or punish in this world or in that 
which is to come. One who professes no religion that 
can bind his conscience to speak the truth. One who 
does not recognize the inspiration or obligation of the 
Holy Scriptures, or generally recognized features of the 
Christian religion. 
Infidelis linf�diyl�s;odelo I. In old English law, an infi
del or heathen. 
In feudal law, one who violated fealty. 
Infidelitas linf�del�tres/. In feudal law, infidelity; faith
lessness to one's feudal oath. 
Infidelity. Unfaithfulness in marriage; usually refer
ring to commission of adultery by one spouse. 
Infiduciare linf�d(y)uws(h)iyeriy/. In old European law, 
to pledge property. 
In fieri lin fay�ray/. In being made; in process of 
formation or development; hence, incomplete or incho
ate. Legal proceedings are described as in fieri until 
judgment is entered. 
Infiht linfayt/. Sax. An assault made on a person 
inhabiting the same dwelling. 
In ime lin fayn(iy)/. Lat. At the end. Used, in refer
ences, to indicate that the passage cited is at the end of 
a book, chapter, section, etc.

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779 
Infinitum in jure reprobatur linf;miyt;m in juriy 
repr;beyt;r /. As applied to litigation, that which is 
endless is reprobated in law. 
Infirm. Weak, feeble. Lacking moral character or weak 
of health. The testimony of an "infirm" witness may be 
taken de bene esse in some circumstances. See also 
Incapacity. 
Infirmative. In the law of evidence, having the quality 
of diminishing force; having a tendency to weaken or 
render infirm. Exculpatory is used by some authors as 
synonymous. 
Infirmative consideration. In the law of evidence, a 
consideration, supposition, or hypothesis of which the 
criminative facts of a case admit, and which tends to 
weaken the inference or presumption of guilt deducible 
from them. 
Infirmative fact. In the law of evidence, a fact set up, 
proved, or even supposed, in opposition to the crimina
tive facts of a case, the tendency of which is to weaken 
the force of the inference of guilt deducible from them. 
Infirmative hypothesis. A term sometimes used in 
criminal evidence to denote an hypothesis or theory of 
the case which assumes the defendant's innocence, and 
explains the criminative evidence in a manner consist
ent with that assumption. 
Infirmity. Disability; feebleness. In an application for 
insurance is an ailment or disease of a substantial 
character, which apparently in some material degree 
impairs the physical condition and health of the appli
cant and increases the chance of his death or sickness 
and which if known, would have been likely to deter the 
insurance company from issuing the policy. See also 
Incapacity. 
Inflation. An overall rise in prices which results in a 
decline in the real value of the dollar. 
Inflation rate. Rate of change in prices of goods and 
services as measured for a particular period. The pri
mary indexes for measuring the rate of change are the 
Consumer Price Index and Producer Price Index. 
Influence. Power exerted over others. To affect, modify 
or act upon by physical, mental or moral power, espe
cially in some gentle, subtle, and gradual way. State v. 
Robertson, 241 La. 249, 128 So.2d 646, 648. See also 
Coercion; Duress; Undue influence. 
Informal. Deficient in legal form; inartificially drawn 
up. 
Informal contract. A contract that does not require a 
specified form or formality for its validity. Generally 
refers to an oral contract as contrasted with a written 
contract or specialty instrument. See Contract. 
Informality. Want of legal form. 
Informal proceedings. Proceedings less formal than a 
normal trial; e.g. small claims or conciliation court, 
administrative hearings, etc. Those conducted without 
prior notice to interested persons by an officer of the 
Court acting as registrar for probate of a will or appoint-
INFORMED CONSENT 
ment of a personal representative. Uniform Probate 
Code, § 1-201(19). 
Informant. See Informer. 
In forma pauperis lin form; pop;r;s /. In the character 
or manner of a pauper. Describes permission given to a 
poor person (i.e. indigent) to proceed without liability for 
court fees or costs. An indigent will not be deprived of 
his rights to litigate and appeal; if the court is satisfied 
as to his indigence he may proceed without incurring 
costs or fees of court. Fed.R.App.P. 24. See also Coun
sel, right to; Indigent defendant; Pauper's oath. 
Information. An accusation exhibited against a person 
for some criminal offense, without an indictment. An 
accusation in the nature of an indictment, from which it 
differs only in being presented by a competent public 
officer on his oath of office, instead of a grand jury on 
their oath. A written accusation made by a public 
prosecutor, without the intervention of a grand jury. 
Salvail v. Sharkey, 108 R.I. 63, 271 A.2d 814, 817. 
Function of an "information" is to inform defendant of 
the nature of the charge made against him and the act 
constituting such charge so that he can prepare for trial 
and to prevent him from being tried again for the same 
offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 
287, 288. 
While Fifth Amendment of U.S. Constitution requires 
federal government to prosecute infamous crimes only 
upon presentment of grand jury indictment, in most 
states the information may be used in place of grand 
jury indictment to bring a person to trial. As regards 
federal crimes, see Fed.R.Crim.P. 7. See also Arraign
ment; Indictment; Prelimi nary hearing. As to joinder of 
informations, see Joinder. 
Information and belief. A standard legal term which is 
used to indicate that the allegation is not based on the 
firsthand knowledge of the person making the allega
tion, but that person nevertheless, in good faith, believes 
the allegation to be true. A request for a search war
rant may be based upon information and belief. U.S. v. 
Gaertner, C.A.Wis., 705 F.2d 210, 211. See Probable 
cause. 
Informed consent. A person's agreement to allow some
thing to happen (such as surgery) that is based on a full 
disclosure of facts needed to make the decision intelli
gently; i.e., knowledge of risks involved, alternatives, 
etc. Informed consent is the name for a general princi
ple of law that a physician has a duty to disclose what a 
reasonably prudent physician in the medical community 
in the exercise of reasonable care would disclose to his 
patient as to whatever grave risks of injury might be 
incurred from a proposed course of treatment, so that a 
patient, exercising ordinary care for his own welfare, 
and faced with a choice of undergoing the proposed 
treatment, or alternative treatment, or none at all, may 
intelligently exercise his judgment by reasonably bal
ancing the probable risks against the probable benefits. 
Ze Barth v. Swedish Hospital Medical Center, 81 
Wash.2d 12, 499 P.2d 1, 8.

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INFORMER 
Informer. An undisclosed person who confidentially dis
closes material information of a law violation, thereby 
supplying a lead to officers for their investigation of a 
crime. Jackson v. State, Wyo., 522 P.2d 1286, 1288. 
This does not include persons who supply information 
only after being interviewed by police officers, or who 
give information as witnesses during course of investiga
tion. Gordon v. U.S., C.A.Fla., 438 F.2d 858, 874. Re
wards for information obtained from informers is provid
ed for by 18 U.S.C.A. § 3059. See also Citizen informant.. 
Informer's privilege. The government's privilege to 
withhold from disclosure the identity of persons who 
furnish information on violations of law to officers 
charged with enforcement of that law. Roviaro v. Unit
ed States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 
639. In the exercise of its power to formulate evidentia
ry rules for federal criminal cases, the Supreme Court 
has consistently declined to hold that an informer's 
identity need always be disclosed in a federal criminal 
trial or in a preliminary hearing. McCray v. Illinois, 
386 U.S. 300, 312, 87 S.Ct. 1056, 1063, 18 L.Ed.2d 62. A 
defendant is entitled to a veracity hearing if he makes a 
substantial preliminary showing that an af fiant know
ingly and intentionally, or with reckless disregard for 
the truth, included in a warrant affidavit a false state
ment necessary to the finding of probable cause. How
ever, the deliberate falsity or reckless disregard whose 
impeachment is permitted is only that of the affiant, not 
of any nongovernmental informant. Franks v. Dela
ware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 
667. 
In foro lin forow/. In a (or the) forum, court, or tribu
nal. 
In foro conscientire lin forow kons(h)iy€mshiyCiy)/. In 
the tribunal of conscience; conscientiously, considered 
from a moral, rather than a legal, point of view. 
In foro contentioso lin forow k:mtenshiyowsow I. In 
the forum of contention or litigation. 
In foro ecciesiastico I in forow ;}kliyziyrest;}kow I. In an 
ecclesiastical forum; in the ecclesiastical court. 
In foro sreculari I in forow seky;}leray I. In a secular 
forum or court. 
Infortunium, homicide per Ihom;}sayd p::lr inf;}rtyuwn
(i)y;}m/. Where a man doing a lawful act, without 
intention of hurt, unfortunately kills another. 
Infra linfr;}/. (Lat.) Below, under, beneath, under
neath. The opposite of supra, above. Thus, we say, 
primo gradu est-s upra, pater, mater, infra, filius, filia: 
in the first degree of kindred in the ascending line, 
above is the father and the mother, below, in the de
scending line, son and daughter. 
In another sense, this word signifies within; as, infra 
corpus civitatis, within the body of the country; infra 
prl£sidia, within the guards. So of time, during: infra 
furorem, during the madness. This use is not classical. 
The use of infra for intra seems to have sprung up 
among the barbarians after the fall of the Roman em
pire. 
780 
Infra retatem linfr;} ;}teyt;}m/. Under age; not of age. 
Applied to minors. 
Infra annos nubiles linfr;} renows n(y)uwb;}liyz/. Under 
marriageable years; not yet of marriageable age. 
Infra annum linfr;} ren;}m/. Under or within a year. 
Infra annum Iuctus linfr;} ren;}m l�kt;}s/. (Within the 
year of mourning.) The phrase is used in reference to 
the marriage of a widow within a year after her hus
band's death, which was prohibited by the civil law. 
Infra brachia linfr;} breyk(i)y;}/. Within her arms. 
Used of a husband de jure, as well as de facto. Also 
inter brachia. It was in this sense that a woman could 
only have an appeal for murder of her husband inter 
brachia sua. 
Infra civitatem linfr;} siv;}teyt;}m/. Within the state. 
Infra corpus comitatus linfr;} korp;}s kom;}ooyt;}s/. 
Within the body (territorial limits) of a county. In 
English law, waters which are infra corpus comitatus 
are exempt from the jurisdiction of the admiralty. 
Infraction. A breach, violation, or infringement; as of a 
law, a contract, a right or duty. A violation of a statute 
for which the only sentence authorized is a fine and 
which violation is expressly designated as an infraction. 
Infra dignitatem curire linfr;} dign;}teyt;}m kyliriy(iy)/. 
Beneath the dignity of the court; unworthy of the con
sideration of the court. Where a bill in equity is 
brought upon a matter too trifling to deserve the atten
tion of the court, it is demurrable, as being infra digni
tatem curil£. 
Infra furorem linfr;} fy;}ror;}m/. During madness; while 
in a state of insanity. 
Infra hospitium linfr;} hospish(iy);}m/. Within the inn. 
When a traveler's baggage comes infra hospitium, i.e., in 
the care and under the custody of the innkeeper, the 
latter's liability attaches. Davidson v. Madison Corpora
tion, 231 App.Div. 421, 247 N.Y.S. 789, 795. 
Infra jurisdictionem linfr;} jur;}sdikshiyown;}m/. With
in the jurisdiction. 
Infra prresidia linfr;} pr;}sid(i)y;}/. Within the protec
tion; within the defenses. In international law, when a 
prize, or other captured property, is brought into a port 
of the captors, or within their lines, or otherwise under 
their complete custody, so that the chance of rescue is 
lost, it is said to be infra prl£sidia. 
In fraudem creditorum lin frod;}m kred;}tOr;}m/. In 
fraud of creditors; with intent to defraud creditors. 
In fraudem legis lin frod;}m Hyj;}s/. In fraud of the law. 
With the intent or view of evading the law. 
Infringement linfrinjm;}ntl. A breaking into; a tres
pass or encroachment upon; a violation of a law, regula
tion, contract, or right. Used especially of invasions of 
the rights secured by patents, copyrights, and trade
marks. See also Encroachment; Trespass. 
Contributory infringement. The intentional aiding of 
one person by another in the unlawful making or selling

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of a patented invention; usually done by making or 
selling one part of the patented invention, or one ele
ment of the combination, with the intent and purpose of 
so aiding. 
Criminal infringement. Any person who infringes a 
copyright willfully and for purposes of commercial ad
vantage or private financial gain is subject to a fine 
and/or imprisonment. Copyright Act, § 506 (17 U.S.C. 
A). 
Infringement of copyright. Unauthorized use of copy
righted material; i.e. use without permission of copy
right holder. In determining whether there is a copy
right infringement, and not a "fair use" exemption, the 
factors to be considered include: (1) the purpose and 
character of the use, including whether such use is of a 
commercial nature or is for nonprofit educational pur
poses; (2) the nature of the copyrighted work; (3) the 
amount and sUbstantiality of the portion used in rela
tion to the copyrighted work as a whole; and (4) the 
effect of the use upon the potential market for or value 
of the copyrighted work. Copyright Act, § 107 (17 
U.S.C.A). 
Remedies for copyright infringement include injunc
tive relief, impounding and disposition of infringing arti
cles, and recovery of actual damages and profits. In lieu 
of actual damages, the federal Copyright Act provides 
for statutory damages which will vary as to whether the 
infringement was willful or unintentional. Copyright 
Act, § 504 (17 U.S.C.A). 
See also Fair use doctrine; Fragmented literal simila rity. 
Infringement of patent. The unauthorized making, us
ing, or selling for practical use, or for profit, of an 
invention covered by a valid claim of a patent during 
the life of the patent. It may involve any one or all of 
the acts of making, using, and selling. Phillips Elec
tronic & Pharmaceutical Industries Corp. v. Thermal & 
Electronics Industries, Inc., D.C.N.J., 311 F.Supp. 17, 39. 
To constitute infringement of a patent claim there must 
be present in the infringing device or combination every 
element of such claim or its equivalent, so combined as 
to produce substantially the same result operating in 
substantially the same way. Montgomery Ward and Co. 
v. Clair, C.C.A.Mo., 123 F.2d 878, 881. See 35 U.S.C.A. 
§ 100 et seq. See also Contributory infringement. 
Infringement of trademark. The unauthorized use, or 
colorable imitation of the mark already appropriated by 
another, on goods of a similar class. Northam Warren 
Corporation v. Universal Cosmetic Co., C.C.AIll., 18 
F.2d 774, 775. It exists if words or designs used by 
defendant are identical with or so similar to plaintiffs 
that they are likely to cause confusion, or deceive or 
mislead others. One who affixes the trademark of an
other to similar articles in such way that his use of it is 
liable to cause confusion in the trade, or is calculated to 
mislead purchasers and induce them to buy infringer's 
articles as goods of the other thus depriving the latter of 
the full benefit of his property. James Heddon's Sons v. 
Millsite Steel & Wire Works, C.C.AMich., 128 F.2d 6, 8. 
IN GREMIO LEGIS 
See 15 U.S.C.A § 1051 et seq. See also Likelihood of 
confusion. 
Infringer. One who infringes the rights secured by 
copyright, patent or trademark holders. See Infringement. 
In full. Relating to the whole or full amount; as a 
receipt in full. Complete; giving all details. 
In full life. Continuing in both physical and civil exist
ence; that is, neither actually dead nor civiliter mortu
us. 
In futuro lin f(y)�tyUrow/. In future; at a future time; 
the opposite of in prresenti. 
In generalibus versatur error lin j(m�reyl�b�s 
v�rseyt�r ehr�r I. Error dwells in general expressions. 
In generali passagio lin jen�reylay p�seyj(iy)ow I. In 
the general passage; that is, on the journey to Palestine 
with the general company or body of Crusaders. This 
term was of frequent occurrence in the old law of 
essoins, as a means of accounting for the absence of the 
party, and was distinguished from simplex passagium, 
which meant that he was performing a pilgrimage to the 
Holy Land alone. 
In genere lin jen�riy/. In kind; in the same genus 01' 
class; the same in quantity and quality, but not individ
ually the same. For example, laws on the same subject. 
See In pari materia. In the Roman law, things which 
may be given or restored in genere are distinguished 
from such as must be given or restored in specie; that is, 
identically. 
For easement in gross, see Easement. 
Ingenuitas linj�n(y)uw�tres/. Lat. Freedom; liberty; 
the state or condition of one who is free. Also liberty 
given to a servant by manumission. 
Ingenuitas regni linj�n(y)uw�tres regnay/. In old Eng
lish law, the freemen, yeomanry, or commonalty of the 
kingdom. Applied sometimes also to the barons. 
Ingenuus linjenyuw�s/. In Roman law, a person who, 
immediately that he was born, was a free person. He 
was opposed to libertinus, or libertus, who, having been 
born a slave, was afterwards manumitted or made free. 
It is not the same as the English law term "generosus': 
which denoted a person not merely free, but of good 
family. There were no distinctions among ingenui; but 
among libertini there were (prior to Justinian's abolition 
of the distinctions) three varieties, namely: Those of the 
highest rank, called "Cives Romani ':. those of the sec
ond rank, called "Latini Juniani ':. and those of the 
lowest rank, called "Dediticii" . 
Ingratitude. In Roman law, ingratitude was accounted 
a sufficient cause for revoking a gift or recalling the 
liberty of a freedman. Such is also the law of France 
with respect to the first c�e. But the English and 
American law has left the matter entirely to the moral 
sense. Ungrateful. 
In gremio legis lin griym(i)yow liyj�s/. In the bosom of 
the law; in the protection of the law; in abeyance.

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INGRESS 
Ingress. The act, or right of, entering. Access; en
trance. 
Ingress, egress, and regress. These words express the 
right (e.g. of a lessee) to enter, go upon, and return from 
the lands in question. 
Ingressu lingres(y)uw/. In English law, an ancient writ 
of entry, by which the plaintiff or complainant sought 
an entry into his lands. Abolished in 1833. 
Ingressus li1Jgres:::ls/. In old English law, ingress; entry. 
The relief paid by an heir to the lord was sometimes so 
called. 
In gross. In a large quantity or sum; without deduction, 
division, or particulars; by wholesale. At large, in one 
sum; not annexed to or dependent upon another thing. 
Common in gross is such as is neither appendant nor 
appurtenant to land, but is annexed to a man's person. 
See also In bulk. 
For easement in gross, see Easement. 
Ingrossator lingr:::lseyt:::lr/. In old English law, an en
grosser. Ingrossator magni rotuli lingr:::lseyt:::lr mregnay 
rotY:::llay/, engrosser of the great roll; called "clerk of 
the pipe". 
Ingrossing. The act of making a fair and perfect copy of 
any document from a rough draft of it, in order that it 
may be executed or put to its final purpose. See En
grossment. 
Inhabit. Synonymous with dwell, live, reside, sojourn, 
stay, rest. See also Domicile; Residence. 
Inhabitant. One who resides actually and permanently 
in a given place, and has his domicile there. Ex parte 
Shaw, 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768. 
The words "inhabitant," "citizen," and "resident," as 
employed in different constitutions to define the qualifi
cations of electors, means substantially the same thing; 
and, in general, one is an inhabitant, resident, or citizen 
at the place where he has his domicile or home. But the 
terms "resident" and "inhabitant" have also been held 
not synonymous, the latter implying a more fixed and 
permanent abode than the former, and importing privi
leges and duties to which a mere resident would not be 
subject. A corporation can be an inhabitant only in the 
state of its incorporation. Sperry Products v. Associa
tion of American Railroads, C.C.A.N.Y., 132 F.2d 408, 
411. See also Domicile; Residence. 
In hac parte I in hrec partiy I. In this behalf; on this 
side. 
In hrec verba lin hiyk v�rb:::l/. In these words; in the 
same words. 
In hreredes non solent transire actiones qure prenales 
ex maleficio sunt lin hariydiyz non sowl:::lnt trrenzayriy 
rekshiyowniyz kwiy p:::lneyliyz eks :::Ifish(iy)ow s�nt/. Pe
nal actions arising from anything of a criminal nature 
do not pass to heirs. 
Inhere I inhir I. To exist in and inseparable from some
thing else; to stick fast. To be inherent. 
782 
Inherently dangerous. Danger inhering in instrumen
tality or condition itself at all times, so as to require 
special precautions to prevent injury; not danger arising 
from mere casual or collateral negligence of others with 
respect thereto under particular circumstances. Brown 
v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1082. An 
object which has in itself the potential for causing harm 
or destruction, against which precautions must be taken. 
Dangerous per se, without requiring human interven
tion to produce harmful effects; e.g., explosives. 
Product is "inherently dangerous" where danger of an 
injury arises from product itself, and not from defect in 
product. General Bronze Corp. v. Kostopulos, 203 Va. 
66, 122 S.E.2d 548, 551. Work is "inherently danger
ous" when in ordinary course of events its performance 
would probably, and not merely possibly, cause injury if 
proper precautions are not taken. Palaidis v. U.S., 
D.C.Fla., 564 F.Supp. 1397, 1401. 
See also Dangerous instrume ntality; Dangerous weapon; 
Strict liability. 
Inherent or latent defect. Fault or deficiency in a 
thing, no matter the use made of such, which is not 
easily discoverable and which is fixed in the object itself 
and not from without. See also Latent defect; Strict 
liability. 
Inherent powers linhir:::lnt paw:::lrz/. An authority pos
sessed without its being derived from another. A right, 
ability, or faculty of doing a thing, without receiving 
that right, ability, or faculty from another. Powers 
originating from the nature of government or sovereign
ty, i.e., powers over and beyond those explicitly granted 
in the Constitution or reasonably to be implied from 
express grants; e.g. in the foreign policy area, the Exec
utive's inherent powers have been held to confer author
ity upon the President to settle the claims of American 
nationals against a foreign state as part of a diplomatic 
agreement. Charles T. Main Int'l, Inc. v. Khuzestan 
Water & Power Author., C.A.Mass., 651 F.2d 800, 809-
10. See also Power. 
Inherent powers of court. The "inherent power" of a 
court is that which is necessary for the proper and 
complete administration of justice and such power is 
resident in all courts of superior jurisdiction and essen
tial to their existence; e.g., sentencing and contempt 
powers. People v. Cirillo, 100 Misc.2d 527, 419 N.Y.S.2d 
820, 824; power to enjoin vexatious litigation, In re 
Martin-Trigona v. Lavien, et aI., C.A.Conn., 737 F.2d 
1254. 
Inherent right. One which abides in a person and is not 
given from something or someone outside itself. A right 
which a person has because he is a person. See Inalien
able rights. 
Inheretrix linhehr:::ltriks/. The old term for "heiress". 
Inherit linhehr:::lt/. To take or receive by inheritance; 
to take by descent as a matter of law as heir on death of 
ancestor; though this item has also come to mean to 
receive by devise (i.e., by will). Acquisition of property 
by descent and distribution. The word is also used in its

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popular sense as the equivalent of to take or receive. 
See also Descent; Inheritance. 
Inheritable blood. Blood which has the purity (freedom 
from attainder) and legitimacy necessary to give its 
possessor the character of a lawful heir. That which is 
capable of being the medium for the transmission of an 
inheritance. 
Inheritance linhehrad:ms/. That which is inherited or 
to be inherited. Property which descends to heir on the 
intestate death of another. An estate or property which 
a person has by descent, as heir to another, or which he 
may transmit to another, as his heir. See Bequest; 
Descent; Heirs; Inherit; Legacy. 
Civil law. The succession of the heir to all the rights 
and property of the estate-Ieaver. It is either testamen
tary, where the heir is created by will, or ab intestato, 
where it arises merely by operation of law. 
Inheritance tax. Tax imposed in some states upon the 
privilege of receiving property from a decedent at death 
as contrasted with an estate tax which is imposed on the 
privilege of transmitting property at death. A tax on 
the transfer or passing of estates or property by legacy, 
devise, or intestate succession; not a tax on the property 
itself, but on the right to acquire it by descent or 
testamentary gift. Compare Estate tax. 
Inhibition lin(h)abishan/. Restraining or holding back. 
In Ecclesiastical law, a writ issuing from a superior 
ecclesiastical court, forbidding an inferior judge to pro
ceed further in a cause pending before him. In this 
sense it is closely analogous to the writ of prohibition at 
common law. Also the writ of a bishop or ecclesiastical 
judge that a clergyman shall cease from taking any 
duty. 
In old English law, the name of a writ which forbids a 
judge from further proceeding in a cause pending before 
him; it was in the nature of a prohibition. 
In the civil law, a prohibition which the law makes or 
a judge ordains to an individual. See Immigration. 
In his enim qure sunt favorabilia animre, quamvis 
sunt damnosa rebus, fiat aliquando extentio statuti 
lin his enam kwiy s;)nt feyvarabil(i)ya renamiy, kwremvas 
s;)nt dremnowsa riybas, fayat relakwrendow akstensh(iy)ow 
statyuwtay I. In things that are favorable to the spirit, 
though injurious to property, an extension of the statute 
should sometimes be made. 
In his qure de jure communi omnibus conceduntur, 
consuetudo alicujus patrire vel loci non est allegen
da lin his kwiy diy juriy kamyuwnay omnabas 
konsad:lntar, konswat(y)uwdow relakyuwjas pretriyiy vel 
lowsay non est relajenda/. In those things which by 
common right are conceded to all, the custom of a 
particular district or place is not to be alleged. 
In hoc lin hok/. In this; in respect to this. 
Inhonestus linhanestas/. In old English law, unseemly; 
not in due order. 
Inhuman treatment. In the law of divorce, such mental 
or physical cruelty or severity as endangers the life or 
INITIAL CARRIER 
health of the party to whom it is addressed, or creates a 
well-founded apprehension of such danger. The phrase 
commonly employed in statutes is "cruel and inhuman 
treatment," from which it may be inferred that "inhu
manity" is an extreme or aggravated "cruelty." Such 
treatment commonly constitutes a ground for divorce. 
See also Cruel and inhuman treatment; Cruelty; Mental 
cruelty. 
In iisdem terminis lin iyaysdam t:lrmanas/ . In the 
same terms. 
In tis qure sunt merre facultatis nunquam prrescribi
tur lin ayas kwiy s;)nt miriy frekalteytas n;}l)kwam 
praskribatar/. Prescription does not run against a mere 
power or faculty to act. 
In individuo lin indavid(y)uwow/. In the distinct, iden
tical, or individual form; in specie. 
In infinitum lin inf:maytam/. Infinitely; indefinitely. 
Imports indefinite succession or continuance. 
In initio lin anish(iy)ow/. In or at the beginning. In 
initio litis, at the beginning, or in the first stage of the 
suit. 
In integrum lin antegram/. To the original or former 
state. 
In invidiam lin anvid(i)yam/. To excite a prejudice. 
In invitum lin anvaytam/. Against an unwilling party; 
against one not assenting. A term applied to proceed
ings against an adverse party, to which he does not 
consent. 
In ipsis faucibus lin ipsas fosabas/. In the very throat 
or entrance. In ipsis faucibus of a port, actually enter
ing a port. 
Iniquissima pax est anteponenda justissimo bello 
linikwisama preks est rentapanenda j;)stisamow below/. 
The most unjust peace is to be preferred to the justest 
war. 
Iniquum est alios permittere, alios inhibere mercatu
ram linaykwam est eyl(i)yows parmitariy, eyl(i)yows 
in(h)abiriy m;)rkatyur;}m/. It is inequitable to permit 
some to trade and to prohibit others. 
Iniquum est aliquem rei sui esse judicem I anaykwam 
est relakwam riyay s(y)uway esiy juwdasam/. It is wrong 
for a man to be a judge in his own cause. 
Iniquum est ingenuis hominibus non esse liberam 
rerum suarum alienationem I anaykwam est injen
yuwas haminabas non esiy libaram riram s(y)uweram 
eyliyeyshiyownam/. It is unjust that freemen should 
not have the free disposal of their own property. 
Initial. That which begins or stands at the beginning. 
The first letter of a person's name. 
Initial appearance. After arrest, the first appearance 
of the accused before a judge or magistrate. See Arraign
ment; Prelimi nary hearing. 
Initial carrier. In the law of bailments, the carrier who 
first receives the goods and begins the process of their 
transportation, afterwards delivering them to another

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INITIAL CARRIER 
carrier for the further prosecution or completion of their 
journey. But it has also been defined as the one con
tracting with the shipper, and not necessarily the one 
whose line constitutes the first link in transportation. 
Initial determination. With respect to social security 
benefit claims, refers to first determination of agency of 
claimants' application for benefits. Several levels of 
appeal are provided for from an initial claim denial. 42 
U.S.C.A. § 405(b). 
Initiate. Commence; start; originate; introduce; incho
ate. Curtesy initiate is the interest which a husband has 
in the wife's lands after a child is born who may inherit, 
but before the wife dies. To propose for approval-as 
schedule of rates. Idaho Power Co. v. Thompson, D.C. 
Idaho, 19 F.2d 547, 579. 
Initiation fee. The sum paid on joining an organization 
or club for privileges of membership. Derby v. U. S., 
D.C.Mass., 17 F.2d 119, 120. 
Initiative. An electoral process whereby designated per
centages of the electorate may initiate legislative or 
constitutional changes through the filing of formal peti
tions to be acted on by the legislature or the total 
electorate. The power of the people to propose bills and 
laws, and to enact or reject them at the polls, indepen
dent of legislative assembly. Hughes v. Bryan, Okl., 425 
P.2d 952, 954. Not all state constitutions provide for 
initiative. See also Referendum. 
In itinere lin aytin�riy/. In eyre; on a journey or 
circuit. In old English law, the justices in itinere (or in 
eyre) were those who made a circuit through the king
dom once in seven years for the purposes of trying 
causes. In course of transportation; on the way; not 
delivered to the vendee. In this sense the phrase is 
equivalent to "in transitu. " 
Iniurcolleguia /iynyurkalyeygiy�/. A body of Soviet 
lawyers in Moscow organized and constituted pursuant 
to statute under jurisdiction and control of the U.S.S.R. 
Ministry of Justice for the purpose of exclusive represen
tation of Soviet nationals in foreign legal matters. In re 
Mitzkel's Estate, 36 Misc.2d 671, 233 N.Y.S.2d 519, 524; 
In re Kapocius' Estate, 36 Misc.2d 1087, 234 N.Y.S.2d 
346, 348. 
In judgment. In a court of justice; in a seat of judg
ment. 
In judiciis, minori retati succurritur lin j�dis(h)iy�s, 
m�n6ray �teytay s�k�r�t�r I. In courts or judicial pro
ceedings, infancy is aided or favored. 
In judicio lin j�dis(h)(i)yow/. In Roman law, in the 
course of an actual trial; before a judge (judex). A 
cause, during its preparatory stages, conducted before 
the prretor, was said to be in jure; in its second stage, 
after it had been sent to a judex for trial, it was said to 
be in judicio. 
In judicio non creditur nisi juratis lin j�dis(h)(i)yow 
non kred�t�r naysay j�reyt�s /. In a trial, credence is 
given only to those who are sworn. 
784 
Injunction. A court order prohibiting someone from 
doing some specified act or commanding someone to 
undo some wrong or injury. A prohibitive, equitable 
remedy issued or granted by a court at the suit of a 
party complainant, directed to a party defendant in the 
action, or to a party made a defendant for that purpose, 
forbidding the latter from doing some act which he is 
threatening or attempting to commit, or restraining him 
in the continuance thereof, such act being unjust and 
inequitable, injurious to the plaintiff, and not such as 
can be adequately redressed by an action at law. A 
judicial process operating in personam, and requiring 
person to whom it is directed to do or refrain from doing 
a particular thing. Gainsburg v. Dodge, 193 Ark. 473, 
101 S.W.2d 178, 180. Generally, it is a preventive and 
protective remedy, aimed at future acts, and is not 
intended to redress past wrongs. Snyder v. Sullivan, 
Colo., 705 P.2d 510, 513. Fed.R.Civil P. 65. See also 
Tempor ary restraining order. 
Interlocutory injunction. Interlocutory injunctions are 
those issued at any time during the pendency of the 
litigation for the short-term purpose of preventing irrep
arable injury to the petitioner prior to the time that the 
court will be in a position to either grant or deny 
permanent relief on the merits. In accordance with 
their purpose, interlocutory injunctions are limited in 
duration to some specified length of time, or at the very 
outside, to the time of conclusion of the case on the 
merits. Within the category of interlocutory injunctions 
there are two distinct types which must be considered 
individually. The first is generally referred to as a 
preliminary injunction, and includes any interlocutory 
injunction granted after the respondent has been given 
notice and the opportunity to participate in a hearing on 
whether or not that injunction should issue. The second 
is generally referred to as a temporary restraining or
der, and differs from a preliminary injunction primarily 
in that it is issued ex parte, with no notice or opportuni
ty to be heard granted to the respondent. Temporary 
restraining orders supply the need for relief in those 
situations in which the petitioner will suffer irreparable 
injury if relief is not granted immediately, and time 
simply does not permit either the delivery of notice or 
the holding of a hearing. Fed.R.C ivil P. 65. See also 
Injury (Irreparable injury); Temporary restraining order. 
Mandatory injunction. One which (1) commands the 
defendant to do some positive act or particular thing; (2) 
prohibits him from refusing (or persisting in a refusal) to 
do or permit some act to which the plaintiff has a legal 
right; or (3) restrains the defendant from permitting his 
previous wrongful act to continue operative, thus virtu
ally compelling him to undo it. 
Permanent injunction. One intended to remain in force 
until the final termination of the particular suit. 
Perpetual injunction. An injunction which finally dis
poses of the suit, and is indefinite in point of time. 
Preliminary injunction. An injunction granted at the 
institution of a suit, to restrain the defendant from 
doing or continuing some act, the right to which is in

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785 
dispute, and which may either be discharged or made 
perpetual, according to the result of the controversy, as 
soon as the rights of the parties are determined. Fed.R. 
Civil P. 65. 
Preventive injunction. One which prohibits the defen
dant from doing a particular act or commands him to 
refrain from it. 
Prohibitory injunction. An order of a court in the form 
of a judgment which directs one not to do a certain 
thing; sometimes called a restraining order. See Re
straining order. 
Provisional injunction. Another name for a prelimi
nary or temporary injunction or an injunction pendente 
lite. 
Restraining order. See Order; Restraining order; T empo
rary restraining order. 
Temporary injunction. A preliminary or provisional 
injunction, or one granted pendente lite; as opposed to a 
final or perpetual injunction. A provisional remedy to 
preserve subject matter of controversy pending trial. 
Electronic Data Systems Corp. v. Powell, Tex.Civ.App., 
508 S.W.2d 137, 139. It is one which operates until 
dissolved by interlocutory order or until final hearing on 
matter. Brines v. Mcllhaney, Tex., 596 S.W.2d 519, 523. 
See also Temporary restraining order. 
In jure lin juriy/. In law; according to law. 
In the Roman practice, the procedure in an action was 
divided into two stages. The first was said to be in jure; 
it took place before the prretor, and included the formal 
and introductory part and the settlement of questions of 
law. The second stage was committed to the judex, and 
comprised the investigation and trial of the facts; this 
was said to be in judicio. 
Injure. To violate the legal right of another or inflict an 
actionable wrong. To do harm to, damage, or impair. 
To hurt or wound, as the person; to impair the sound
ness of, as health; to damage. Ziolkowski v. Continen
tal Casualty Co., 284 11l.App. 505, 1 N.E.2d 410, 412. As 
applied to a building, "injure" means to materially im
pair or destroy any part of the existing structure. See 
Injury. 
In jure alterius lin juriy olt�ray;}s/. In another's right. 
In jure, non remota causa sed proxima spectatur lin 
juriy, non r;}mowt;} koz;} sed proks;}m;} spekteyt;}r/. In 
law, the proximate, and not the remote, cause is regard .. 
ed. 
In jure proprio lin juriy prowpriyow I. In one's own 
right. 
Injures graves linj;}riyz greyvz/renzhyur grav/. Fr. In 
French law, grievous insults or injuries, including per
sonal insults and reproachful language, constituting a 
just cause of divorce. 
Injuria I ;}njur(i)y;}1 . Lat. Injury; wrong; the privation 
or violation of right. 
Injuria absque damno I ;}njur(i)y;} rebskwiy dremnow I. 
Injury or wrong without damage. A wrong done, but 
INJURY 
from which no loss or damage results, and which, there
fore, will not sustain an action. 
In juria fit ei cui convicium dictum est, vel de eo 
factum carmen famosum I;}njur(i)y;} fit iyay k(yuw)ay 
k;}nvis(h)(i)y;}m dikt;}m est, vel diy iyow frekt;}m karm;}n 
f;}mows;}m/. An injury is done to him of whom a re
proachful thing is said, or concerning whom an infa
mous song is made. 
Injuria illata judici, seu locum tenenti regis, videtur 
ipsi regi illata maxime si fiat in exercentem offici
um I;}njur(i)y;} ;}leyt;} juwd;}say, s(y)uw lowk;}m t;}nentay 
riyj;}s, v;}diyt;}r ipsay riyj:y ;}leyt;} mreks;}miy say fay;}t in 
egz;}rsent;}m ;}fish(iy);}m/. An injury offered to a judge, 
or person representing the king, is considered as offered 
to the king himself, especially if it be done in the 
exercise of his office. 
Injuria non excusat mJuriam I ;}njur(i)y;} non 
;}kskyuwz;}t ;}njur(i)y;}mI . One wrong does not justify 
another. 
In juria non prresumitur I ;}njur(i)y;} non 
pr;}z(y)uwm;}t;}r/. Injury is not presumed. Cruel, op
pressive, or tortious conduct will not be presumed. 
Injuria propria non cadet in beneficium facientis 
I;}njur(i)y;} prowpriy;} non keyd;}t ;}n ben;}fish(iy);}m 
fres(h)(i)yent;}s/. One's own wrong shall not fall to the 
advantage of him that does it. A man will not be 
allowed to derive benefit from his own wrongful act. 
Injuria servi dominum pertingit I ;}njur(i)y;} s�rvay 
dom;}n;}m p;}rtinj;}t/. The master is liable for injury 
done by his servant. 
Injurious exposure. Such exposure as will render em
ployer liable for occupational disease of employee, is 
concentration of toxic material which would be suffi
cient to cause disease in event of prolonged exposure to 
such concentration regardless of length of exposure re
quired actually to cause the disease. Union Carbide 
Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 
734, 736. See also Occupational disease. 
Injurious falsehood. In law of slander and libel, a 
defamation which does actual damage. See Libel; Slan
der. 
Injurious words I;}njuriy;}s w�rdz/. Slander, or libelous 
words. See Libel; Slander. 
Injury. Any wrong or damage done to another, either in 
his person, rights, reputation, or property. The invasion 
of any legally protected interest of another. Restate
ment, Second, Torts, § 7. 
Absolute injuries. Injuries to those rights which a per
son possesses as being a member of society. 
Accidental injury. A bodily injury by accident. 
Within worker's compensation acts, one which occurs 
in the course of the employment, unexpectedly, and 
without the affirmative act or design of the employee; it 
being something which is unforeseen and not expected 
by the person to whom it happens. Any injury to an 
employee in the course of his employment due to any

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INJURY 
occurrence referable to a definite time, and of the hap
pening of which he can give notice to his employer, 
regardless of whether the injury is a visible hurt from 
external force, or disease or infection induced by sudden 
and castastrophic exposure. Lerner v. Rump Bros., 212 
App.Div. 747, 209 N.Y.S. 698, 701. The term is to 
receive a broad and liberal construction with a view to 
compensating injured employes where injury resulted 
through some accidental means, was unexpected and 
undesigned and may be the result of mere mischance or 
miscalculation as to effect of voluntary action. It in
cludes an accident causing injury to the physical struc
ture of the body, notwithstanding a natural weakness 
predisposing to injury. For purposes of workers' com
pensation act, a "pain" can be classified as an "injury," 
Herndon v. Albuquerque Public Schools, App., 92 N.M. 
635, 593 P.2d 470, 475; as can mental ailments or 
nervous conditions directly resulting from physical inju
ry, Campbell v. Kiser Corp. & Diecast, 137 Ind.App. 366, 
208 N.E.2d 727, 730. The words indicate, not so much 
the existence of an accident, but rather the idea that the 
injury was unexpected or unintended. 
See also Accident; Compensable injury; Continuous inju
ry; Damages; Disability; Great bodily injury; Harm; Loss; 
Malicious injury; Pain and suffering; Pecuniary injury. 
Bankruptcy law. Willful and malicious conversion is an 
"injury" within meaning of Bankruptcy Code section 
stating that individual is not discharged from debt for 
willful and malicious "injury" by debtor. Bankruptcy 
Code § 523. In re Holtz, Bkrtcy.N.D.I owa, 62 B.R. 782, 
785. 
Bodily injury. Physical pain, illness or any impairment 
of physical condition. "Serious bodily injury" means 
bodily injury which creates a substantial risk of death or 
which causes serious, permanent disfigurement, or pro
tracted loss or impairment of the function of any bodily 
member or organ. Model Penal Code, § 210.0. 
Civil injury. Injuries to person or property, resulting 
from a breach of contract, delict, or criminal offense, 
which may be redressed by means of a civil action. An 
infringement or privation of the civil rights which be
long to individuals considered as individuals. 
Injury in fact. Such as is required to give a plaintiff 
standing to sue means concrete and certain harm and, 
to warrant granting of standing, there must also be 
reason to think that the harm can be redressed by relief 
the court can grant. National Collegiate Athletic Ass'n 
v. Califano, C.A.Kan., 622 F.2d 1382, 1386. 
Irreparable injury. This phrase does not mean such an 
injury as is beyond the possibility of repair, or beyond 
possible compensation in damages, or necessarily great 
damage, but includes an injury, whether great or small, 
which ought not to be submitted to, on the one hand, or 
inflicted, on the other; and which, because it is so large 
or so small, or is of such constant and frequent occur
rence, or because no certain pecuniary standard exists 
for the measurement of damages, cannot receive reason
able redress in a court of law. Wrongs of a repeated and 
continuing character, or which occasion damages that 
786 
are estimated only by conjecture, and not by any accu
rate standard, are included. The remedy for such is 
commonly in the nature of injunctive relief. "Irrepara
ble injury" justifying an injunction is that which cannot 
be adequately compensated in damages or for which 
damages cannot be compensable in money. Caffery v. 
Powell, La.App., 320 So.2d 223, 226. Contrast Reparable 
injury, below. See Injunction; Tempor ary restraining or
der. 
Permanent injury. An injury that, according to every 
reasonable probability, will continue throughout the re
mainder of one's life. 
Personal injury. In a narrow sense, a hurt or damage 
done to a man's person, such as a cut or bruise, a broken 
limb, or the like, as distinguished from an injury to his 
property or his reputation. The phrase is chiefly used 
in this connection with actions of tort for negligence and 
under worker's compensation statutes. But the term is 
also used (usually in statutes) in a much wider sense, 
and as including any injury which is an invasion of 
personal rights, and in this signification it may include 
such injuries to the person as libel or slander, criminal 
conversation, malicious prosecution, false imprisonment, 
and mental suffering. Gray v. Wallace, 319 S.W.2d 582. 
In worker's compensation acts, "personal injury" 
means any harm or damage to the health of an employ
ee, however caused, whether by accident, disease, or 
otherwise, which arises in the course of and out of his 
employment, and incapacitates him in whole or in part. 
The occurrence of disability or impairment. Such in
cludes the aggravation of a preexisting injury. 
Private injuries. Infringements of the private or civil 
rights belonging to individuals considered as individuals. 
Public injuries. Breaches and violations of rights and 
duties which affect the whole community as a communi
ty. 
Real injury. A real in jury is inflicted by any act by 
which a person's honor or dignity is affected. 
Relative injuries. Injuries to those rights which a per
son possesses in relation to the person who is immediate
ly affected by the wrongful act done. 
Reparable injury. The general principle is that an inju
ry, the damage from which is merely in the nature of 
pecuniary loss, and can be exactly and fully repaired by 
compensation in money, is a "reparable injury". Con
trast Irreparable injury, above. 
Unknown injury rule. Under this rule, release of claims 
for personal injuries may be avoided on the ground of 
mutual mistake if parties at the time of signing the 
agreement were mistaken as to the existence of injury, 
as opposed to unknown consequences of known injuries. 
LaFleur v. C.C. Pierce Co., Inc., et aI., 398 Mass. 254, 496 
N.E.2d 827. 
Verbal injury. See Libel; Slander. 
Violation of constitutional rights. "Injury" within 
meaning of state Tort Claims Act includes damage 
caused by violation of constitutional rights. Lloyd v.

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787 
Borough of Stone Harbor, 179 N.J.Super. 496, 432 A.2d 
572, 580. 
Injustice. The withholding or denial of justice. In law, 
almost invariably applied to the act, fault, or omission of 
a court, as distinguished from that of an individual. 
"Fraud" is deception practiced by the party; "injustice" 
is the fault or error of the court. They are not equiva
lent words in substance, or in a statute authorizing a 
new trial on a showing of fraud or injustice. Fraud is 
always the result of contrivance and deception; injustice 
may be done by the negligence, mistake, or omission of 
the court itself. Silvey v. U. S., 7 Ct.Cl. 305, 324. 
Injustum est, nisi tota lege inspecta, de una aliqua 
ejus particula proposita judicare vel respondere 
linj:}st�m est, naysay t6wt� liyjiy inspekt�, diy yuwn� 
rel�kw� iyj�s partik(y)�b pr�p6z�t� juwd�keriy vel 
respondiriy I. It is unjust to decide or respond as to any 
particular part of a law without examining the whole of 
the law. 
In jus vocare lin j:}s vowkeriy I. To call, cite, or sum
mon to court. In jus vocando, summoning to court. 
In kind. Of the same species or category. In the same 
kind, class, or genus. A loan is returned "in kind" when 
not the identical article, but one corresponding and 
equivalent to it, is given to the lender. See Distribution in 
kind; In genere; Like-kind exchange. 
Inlagare linbgeriy/. In old English law, to restore to 
protection of law. To restore a man from the condition· 
of outlawry. Opposed to utlagare. 
Inlagation linl�geysh�n/. Restoration to the protection 
of law. Restoration from a condition of outlawry. 
Inlagh linlOi. A person within the law's protection; 
contrary to utlagh, an outlaw. 
Inland. Within a country, state or territory; within the 
interior part of a land mass. 
In old English law, inland was used for the demesne 
(q.v.) of a manor; that part which lay next or most 
convenient for the lord's mansion-house, as within the 
view thereof, and which, therefore, he kept in his own 
hands for support of his family and for hospitality; in 
distinction from outland or utland, which was the por
tion let out to tenants. 
Inland bill of exchange. A bill of which both the 
drawer and drawee reside within the same state or 
country. Otherwise called a "domestic bill," and distin
guished from a "foreign bill." See Bill. 
Inland marine insurance. See Insurance. 
Inland navigation. Within the meaning of the legisla
tion of congress upon the subject, this phrase means 
navigation upon inland waters (q. v.). 
Inland trade. Trade wholly carried on at home; as 
distinguished from foreign commerce. See Commerce. 
Inland waters. Such waters as canals, lakes, rivers, 
watercourses, inlets and bays, within, or partly within, 
the United States, exclusive of the open sea, though the 
water in question may open or empty into the ocean. 
IN MALAM PARTEM 
United States v. Steam Vessels of War, 106 U.S. 607, 1 
S.Ct. 539, 27 L.Ed. 286. 
Inlantal, inlantale linlrent�l, inlrenteyliy/. Demesne or 
inland, opposed to delantal, or land tenanted. 
Inlaughe linlOi. Sax. In old English law, under the 
law (sub lege), in a frank-pledge, or decennary. 
Inlaw. To place under the protection of the law. 
In law. In the intendment, contemplation, or inference 
of the law; implied or inferred by law; existing in law 
or by force of law. See In fact. 
In laws. Persons related by marriage rather than blood; 
e.g. relationship of parents of wife to husband. 
In lecto mortali lin lektow morteylay/. On the 
deathbed. 
Inlet. A narrow strip of water running into the land or 
between islands. Burns v. Coastal Petroleum Co., Fla. 
App., 194 So.2d 71, 75. 
In liberam elemosinam lin lib�r�m iyl�m6s�n�m/. In 
free alms. Land given for a charitable motive was said 
to be so given. See Frankal moign. 
In lieu of lin lyuw �v/. Instead of; in place of; in 
substitution of. It does not mean "in addition to." 
Glassman Const. Co. v. Baltimore Brick Co., 246 Md. 
478, 228 A.2d 472, 474. 
In limine lin lim�niy I. On or at the threshold; at the 
very beginning; preliminarily. Any motion, whether 
used before or during trial, by which exclusion is sought 
of anticipated prejudicial evidence. Braden v. Hen
dricks, Okl., 695 P.2d 1343, 1348. See Motion in limine. 
In litem lin layt�m/. For a suit; to the suit. 
In loco lin 16wkow I. In place; in lieu; instead; in the 
place or stead. 
In loco parentis lin 16wkow p�rent�s/. In the place of a 
parent; instead of a parent; charged, factitiously, with a 
parent's rights, duties, and responsibilities. 
"Loco parentis" exists when person undertakes care 
and control of another in absence of such supervision by 
latter's natural parents and in absence of formal legal 
approval, and is temporary in character and is not to be 
likened to an adoption which is permanent. Griego v. 
Hogan, 71 N.M. 280, 377 P.2d 953, 955. 
In majorem cautelam lin m�j6r�m kotiyl�m/. For 
greater security. 
In majore summa continetur minor lin m�j6riy s:}m� 
kont�niyt�r mayn�r/. In the greater sum is contained 
the less. 
In malam partem lin mrel�m part�m/. In a bad sense, 
so as to wear an evil appearance. 
In maleficiis voluntas spectatur, non exitus lin 
mrebfis(h)iy�s v�l:}ntres spekteyt�r, non egz�t�s/. In evil 
deeds regard must be had to the intention, and not to 
the result. 
In maleficio, ratihabitio mandato comparatur lin 
mrel�fis(h)(i)yow, reyt�yh�bish(iy)ow mrendeytow

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INMATE 
kompareytar/. In a case of malfeasance, ratification is 
equivalent to command. 
Inmate. A person confined to a prison, penitentiary, or 
the like. A person who lodges or dwells in the same 
house with another, occupying different rooms, but us
ing the same door for passing in and out of the house. 
In maxima potentia minima licentia lin mreksama 
patensh(iy)a minama lasensh(iy)a/. In the greatest pow
er there is the least freedom. 
In medias res lin miydiyas riyz/. Into the heart of the 
subject, without preface or introduction. 
In mercibus illicitis non sit commercium lin m�rsabas 
alisatas non sit kam�rs(h)(i)yam/. There should be no 
commerce in illicit or prohibited goods. 
In mercy. To be in mercy is to be at the discretion of 
the king, lord, or judge in respect to the imposition of a 
fine or other punishment. See Clemency. 
In misericordia lin mizarakord(i)ya/. The entry on the 
record where a party was in mercy was, "Ideo in miseri
cordia, "e tc. Sometimes "misericordia" means the being 
quit of all amercements. 
In mitiori sensu lin mishiyoray sens(y)uw/. In the 
milder sense; in the less aggravated acceptation. 
In actions of slander, it was formerly the rule that, if 
the words alleged would admit of two constructions, they 
should be taken in the less injurious and defamatory 
sense, or in mitiori sensu. 
In modum assisre lin mowdam asayziy/. In the manner 
or form of an assize. In modum juratre, in manner of a 
jury. 
In mora lin moral. In default; literally, in delay. In 
the civil law, a borrower who omits or refuses to return 
the thing loaned at the proper time is said to be in mora. 
In mortua manu lin mortyuwa mrenyuw/. Property 
owned by religious societies was said to be held in 
mortua manu, or in mortmain, since religious men were 
civilit er mortui. 
Inn. A public lodging establishment. A lodging house 
where all who conduct themselves properly, and who are 
able and ready to pay for their entertainment, are 
received, if there is accommodation for them, and who, 
while there, are supplied at a reasonable charge with 
their meals, their lodging, and such services and atten
tion as are necessarily incident to the use of the house 
as a temporary home. A place where the public will be 
received and accommodations provided to guests for 
compensation. Edwards v. City of Los Angeles, 48 Cal. 
App.2d 62, 119 P.2d 370, 373, 374. A hotel, tavern, 
motel, or hostel. 
Innamium lineymiyam/. In old English law, a pledge. 
Innavigability. In insurance law, the condition of being 
innavigable (q.v.). The term is also applied to the condi
tion of streams which are not large enough or deep 
enough, or are otherwise unsuited, for navigation. 
788 
Innavigable. As applied to streams, not capable of or 
suitable for navigation; impassable by ships or vessels. 
As applied to vessels in the law of marine insurance, it 
means unfit for navigation; so damaged by misadven
tures at sea as to be no longer capable of making a 
voyage. Compare Navigable waters. 
Inner barrister. A serjeant or king's counsel, in Eng
land, who is admitted to plead within the bar. See also, 
Outer Bar. 
Innings. In old records, lands recovered from the sea by 
draining and banking. 
Innkeeper. One who keeps an inn, hotel, motel or house 
for the lodging and entertainment of travelers. 
Innocence. The absence of guilt. See also Presumption 
of innocence. 
Innocent. Free from guilt; acting in good faith and 
without knowledge of incriminatory circumstances, or of 
defects or objections. See Not guilty. 
Innocent agent. In criminal law, one who, being igno
rant of any unlawful intent on the part of his principal, 
is merely the instrument of the guilty party in commit
ting an offense; one who does an unlawful act at the 
solicitation or request of another, but who, from defect 
of understanding or ignorance of the inculpatory facts, 
incurs no legal guilt. 
Innocent construction rule. In libel law, this rule 
requires that allegedly libelous words that are capable of 
being read innocently must be so read and declared 
nonactionable as matter of law. Belmonte v. Rubin, 68 
Ill.App.3d 700, 25 Ill.Dec. 430, 386 N.E.2d 904. 
Innocent conveyances. A technical term of the old 
English law of conveyancing, used to designate such 
conveyances as may be made by a leasehold tenant 
without working a forfeiture. These are said to be lease 
and re-lease, bargain and sale, and, in case of a life-ten
ant, a covenant to stand seised. 
Innocent party. Person who did not consciously or 
intentionally participate in event, transaction, etc. 
Innocent purchaser. One who, by an honest contract 
or agreement, purchases property or acquires an inter
est therein, without knowledge, or means of knowledge 
sufficient to charge him in law with knowledge, of any 
infirmity in the title of the seller. Treit v. Oregon Auto. 
Ins. Co., 262 Or. 549, 499 P.2d 335, 336. Person is 
"innocent purchaser" when he purchases without notice, 
actual or constructive, of any infirmity and pays valu
able consideration and acts in good faith. Morehead v. 
Harris, 262 N.C. 330, 137 S.E.2d 174, 182, 185. See also 
Good faith purchaser. 
Innocent trespass. A trespass to land, committed, not 
recklessly, but through inadvertence or mistake, or in 
good faith, under an honest belief that the trespasser 
was acting within his legal rights. 
Innocent trespasser. One who enters another's land 
unlawfully, but inadvertently or unintentionally, or in 
the honest, reasonable belief of his own right so to do,

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789 
and removes sand or other material therefrom, is an 
"innocent trespasser." Restatement, Second, Torts, 
§ 164. 
Innominate linom:meyt/. In the civil law, not named or 
classed; belonging to no specific class; ranking under a 
general head. A term applied to those contracts for 
which no certain or precise remedy was appointed, but a 
general action on the case only. 
Innominate contracts. Literally, are the "unclassified" 
contracts of Roman law. They are contracts which are 
neither re, verbis, literis, nor consensu simply, but some 
mixture of or variation upon two or more of such con
tracts. They are principally the contracts of permutatio, 
de restimato, precarium, and transactio. 
In nomine Dei, Amen lin nom:miy diyay, eymen/. In 
the name of God, Amen. A solemn introduction, an
ciently used in wills and many other instruments. The 
translation is often used in wills at the present day. 
Innotescimus lin�tes�m�s/. Lat. We make known. A 
term formerly applied to letters patent, derived from the 
emphatic word at the conclusion of the Latin forms. It 
was a species of exemplification of charters of feoffment 
or other instruments not of record. 
In novo casu, novum remedium apponendum est lin 
nowvow keys(y)uw, nowv�m r�miyd(i)y�m rep�nen
d�m est/. A new remedy is to be applied to a new case. 
Innoxiare I�noks(h)iyeriy/. In old English law, to purge 
one of a fault and make him innocent. 
Inns of Chancery. So called because anciently inhabit
ed by such clerks as chiefly studied the framing of writs, 
which regularly belonged to the cursitors, who were 
officers of the Court of Chancery. There were nine of 
them,--Clement's, Clifford's, and Lyon's Inn; Furnival's, 
Thavies', and Symond's Inn; New Inn; and Barnard's 
and Staples' Inn. These were formerly preparatory 
colleges for students, and many entered them before 
they were admitted into the inns of court. They consist 
chiefly of solicitors, and possess corporate property, hall, 
chambers, etc., but perform no public functions like the 
inns of court. 
Inns of Court. These are certain private unincorporated 
associations, in the nature of collegiate houses, located 
in London, and invested with the exclusive privilege of 
calling people to the bar; that is, conferring the rank or 
degree of a barrister. They were founded probably 
about the beginning of the fourteenth century. The 
principal inns of court are the Inner Temple, Middle 
Temple, Lincoln's Inn, and Gray's Inn. (The two former 
originally belonged to the Knights Templar; the two 
latter to the earls of Lincoln and Gray respectively.) 
These bodies now have a "common council of legal 
education," for giving lectures and holding examina
tions. The inns of chancery, distinguishable from the 
foregoing, but generally classed with them under the 
general name, are the buildings known as "Clifford's 
Inn," "Clement's Inn," "New Inn," "Staples' Inn," and 
"Barnard's Inn." They were formerly a sort of collegi
ate houses in which law students learned the elements 
IN ODIUM SPOLIATORIS 
of law before being admitted into the inns of court, but 
they have long ceased to occupy that position. The Inns 
of Court (governed by officers called "benchers") hold 
the exclusive privilege of conferring the degree of barris
ter-at-Iaw which is required to practice as an advocate or 
counsel in the superior courts. 
In nubibus lin n(y)uwb�b�s/. In the clouds; in abey
ance; in custody of law. In nubibus, in mare, in terra, 
vel in custodia legis, in the air, sea, or earth, or in the 
custody of the law. In case of abeyance, the inheritance 
is figuratively said to rest in nubibus, or in gremio legis. 
Innuendo linyuwendow I. This Latin word (commonly 
translated "meaning") was the technical beginning of 
that clause in a declaration or indictment for slander or 
libel in which the meaning of the alleged libelous words 
was explained, or the application of the language 
charged to the plaintiff was pointed out; hence it gave 
its name to the whole clause. Indirect or subtle implica
tion in words or expression, usually derogatory. 
An "innuendo" in pleading in libel action is a state
ment by plaintiff of construction which he puts upon 
words which are alleged to be libelous and which mean
ing he will induce jury to adopt at trial. Its function is 
to set a meaning upon words or language of doubtful or 
ambiguous import which alone would not be actionable. 
The word is also used (though more rarely) in other 
species of pleadings, to introduce an explanation of a 
preceding word, charge, or averment. Guide Pub. Co. v. 
Futrell, 175 Va. 77, 7 S.E.2d 133, 138. 
In nullius bonis lin n�lay�s bown�s/. Among the goods 
or property of no person; belonging to no person, as 
treasure-trove and wreck were anciently considered. 
In nullo est erratum lin n;}low est �reyt�m/. In noth
ing is there error. The name of the common plea or 
joinder in error, denying the existence of error in the 
record or proceedings; which is in the nature of a 
demurrer, and at once refers the matter of law arising 
thereon to the judgment of the court. 
In obscura voluntate manumittentis, favendum est 
libertati lin �bskyur� vobnteytiy mren(y)�m�tend�s, 
f�vend�m est lib�rteytay I. Where the expression of the 
will of one who seeks to manumit a slave is ambiguous, 
liberty is to be favored. 
In obscuris, inspici solere quod verisimilius est, aut 
quod plerumque fieri solet lin �bskyur�s, insp�say 
s�liriy kwod vehr�s�miliy�s est, ot kwod pl�r;}mkwiy 
fay�ray sowl�t/. In obscure cases, we usually look at 
what is most probable, or what most commonly happens. 
In obscuris, quod minimum est sequimur lin 
�bskyur�s, kwod min�m�m est sekw�m�r I. In obscure 
or doubtful cases, we follow that which is the least. 
In odium spoliatoris lin owd(i)y�m spowl(i)y�tor�s/. In 
hatred of a despoiler, robber, or wrongdoer. 
In odium spoliatoris omnia prresumuntur lin 
owd(i)y�m spowl(i)y�tor�s omniy� priyz(y)�m;}nt�r/. To 
the prejudice (in condemnation) of a despoiler all things

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INOFFICIOSUM 
are presumed; every presumption is made against a 
wrongdoer. 
Inofficiosum lin::lfis(h)iyows::lm/. In the civil law, inoffi
cious; contrary to natural duty or affection. Used of a 
will of a parent which disinherited a child without just 
cause, or that of a child which disinherited a parent, and 
which could be contested by querela inofficiosi testamen
ti. 
Inofficious testament lin::lfish::ls test::lm::lnt/. A will not 
in accordance with the testator's natural affection and 
moral duties. But particularly, in the civil law, a will 
which deprives the heirs of that portion of the estate to 
which the law entitles them, and of which they cannot 
legally be disinherited. A testament contrary to the 
natural duty of the parent, because it totally disinherits 
the child, without expressly giving the reason therefor. 
Inoficiosidad. linowfiysiyowsiyoad/. In Spanish law, 
everything done contrary to a duty or obligation as
sumed, as well as in opposition to the piety and affection 
dictated by nature: inofficiosum dicitur id omne quod 
contra pietatis officium factum est. The term applies 
especially to testaments, donations, dower, etc., which 
may be either revoked or reduced when they affect 
injuriously the rights of creditors or heirs. 
In omni actione ubi dure concurrunt districtiones, 
videlicet, in rem et in personam, ilIa districtio ten
enda est qure magis timetur et magis ligat lin omnay 
rekshiyowniy yuwbay d(y)uwiy k::lnk�hr::lnt 
distrikshiyowniyz, vaydiylis::lt in rem et in p::lrsown::lm, 
il::l distriksh(iy)ow t::lnend::l est kwiy meyj::ls t::lmiyt::lr et 
meyj::ls lig::lt/. In every action where two distresses 
concur, that is, in rem and in personam, that is to be 
chosen which is most dreaded, and which binds most 
firmly. 
In omnibus lin omn::lb::ls/. In all things; on all points. 
"A case parallel in omnibus." 
In omnibus contractibus, sive nominatis sive innomi
natis, permutatio continetur lin omn::lb::ls 
k::lntrrekt::lb::ls, sayviy nom::lneyt::ls sayviy inom::lneyt::ls, 
p�rmyuwteysh(iy)ow kont::lniyd::lr/. In all contracts, 
whether nominate or innominate, an exchange [of value, 
i.e., a consideration] is implied. 
In omnibus obligationibus in quibus dies non poni
tur, prresenti die debetur lin omn::lb::ls obl::lgey
shiyown::lb::ls in kwib::ls dayiyz non pown::lt::lr, pr::lzentay 
dayiy d::lbiyt::lr I. In all obligations in which a date is not 
put, the debt is due on the present day; the liability 
accrues immediately. 
In omnibus [fere] prenalibus judiciis, et retati et im
prudentire succurritur lin omn::lb::ls (firiy) p::lneybb::ls 
j::ldishiY::ls, ed ::Iteytay et impruwdenshiy(iy) s::lk�hr::lt::lr/. 
In nearly all penal judgments, immaturity of age and 
imbecility of mind are favored. 
In omnibus quidem, maxime tamen in jure, requitas 
spectanda sit lin omn::lb::ls kwayd::lm mreks::lmiy teym::ln 
in juriy, iykw::ltres spektrend::l sit/ . In all things, but 
especially in law, equity is to be regarded. 
790 
In omni re nascitur res qure ipsam rem exterminat 
lin omnay riy nres::lt::lr riyz kwiy ips::lm rem ::Ikst�r
m::ln::lt/. In everything there arises a thing which de
stroys the thing itself. Everything contains the element 
of its own destruction. 
Inops consilii linops k::lnsiliyay/. Lat. Destitute of 
counsel; without legal counsel. A term applied to the 
acts or condition of one acting without legal advice, as a 
testator drafting his own will. 
Inordinatus linord::lneyt::ls/. An intestate. 
In pacato solo lin p::lkeytow sowlow I. In a country 
which is at peace. 
In pace Dei et regis lin peysiy diyay et riyj::ls/. In the 
peace of God and the king. Formal words in old appeals 
of murder. 
In pais lin pey(s)/. This phrase, as applied to a legal 
transaction, primarily means that it has taken place 
without legal proceedings. Thus a widow was said to 
make a request in pais for her dower when she simply 
applied to the heir without issuing a writ. So convey
ances are divided into those by matter of record and 
those by matter in pais. In some cases, however, "mat
ters in pais " are opposed not only to "matters of record," 
but also to "matters in writing," i.e., deeds, as where 
estoppel by deed is distinguished from estoppel by mat
ter in pais. See also Pais. 
In pais, estoppel I ::Istop::ll in pey(s)I . An estoppel not 
arising from deed or record or written contract. The 
doctrine is that a person may be precluded by his act or 
conduct or silence, when it is his duty to speak, from 
asserting a right which he otherwise would have had. 
Marshall v. Wilson, 175 Or. 506, 154 P.2d 547, 551. The 
effect of a party's voluntary conduct whereby he is 
precluded from asserting rights as against another per
son who has in good faith relied upon such conduct and 
has been led thereby to change his condition for the 
worse and who acquires some corresponding right of 
property or contract. Oswego Falls Corporation v. City 
of Fulton, 148 Misc. 170, 265 N.Y.S. 436. 
Elements or fundamentals of "estoppel in pais" in
clude admission, statement, or act inconsistent with 
claim afterwards asserted, National Match Co. v. Em
pire Storage & Ice Co., 227 Mo.App. 111 5, 58 S.W.2d 797; 
change of position to loss or injury of party claiming 
estoppel, Malloy v. City of Chicago, 369 Ill. 97, 15 N.E.2d 
861, 865; circumstances such that party estopped knew 
or should have known facts to be otherwise or pretended 
to know facts which he did not know; false representa
tion or concealment of material facts, Pickens v. Mary
land Casualty Co., 141 Neb. 105, 2 N.W.2d 593, 596; 
inducement to alter position; intention that false repre
sentation or concealment be acted on, Peterson v. City of 
Parsons, 139 Kan. 701, 33 P.2d 715, 720; knowledge of 
facts, by party to be estopped; lack of knowledge or 
means of knowledge of party claiming estoppel, Sinclair 
Refining Co. v. Jenkins Petroleum Process Co., C.C.A. 
Me., 99 F.2d 9, 13, 14; misleading of one person by 
another person to his prejudice or injury, Current News 
Features v. Pulitzer Pub. Co., C.C.A.Mo., 81 F.2d 288,

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791 
292; prejudice or loss or injury to party claiming estop
pel, City of St. Louis v. Mississippi River Fuel Corpora
tion, D.C.Mo., 57 F.Supp. 549, 554; reliance by one party 
on belief induced by other party, Strand v. State, 16 
Wash.2d 107, 132 P.2d 101 1, 1016. 
See also Equitable estoppel. 
In paper. In old English law, a term formerly applied to 
the proceedings in a cause before the record was made 
up. Probably from the circumstance of the record being 
always on parchment. The opposite of "on record." 
In pari causa lin preray koz;)/"perayO I. In equal fault or 
guilt; equally culpable or criminal. A common law 
defense that prohibited a plaintiff from suing if it had 
been a participant in the contract or conspiracy that led 
to the violation of law at issue. As a general rule, the 
defense of in pari delicto is not recognized in the anti
trust laws. See also Unclean hands doctrine. 
In pari causa possessor potior haberi debet lin preray 
koz;) p;)zes;)r powsh(iy);)r h;)biray deb;)t/. In an equal 
cause he who has the possession should be preferred. 
In pari delicto I in preray d;)liktow I"perayO I . In equal 
fault; equally culpable or criminal; in a case of equal 
fault or guilt. A person who is in pari delicto with 
another differs from a particeps criminis in this, that the 
former term always includes the latter, but the latter 
does not always include the former. 
In pari delicto potior est conditio possidentis [defen
dentis] lin preray d;)liktow powsh(iy);)r est k;)ndish(iy)ow 
pos;)dent;)sl"d;)fendent;)sl. In a case of equal or mutual 
fault [between two parties] the condition of the party in 
possession [or defending] is the better one. Where each 
party is equally in fault, the law favors him who is 
actually in possession. Where the fault is mutual, the 
law will leave the case as it finds it. 
In pari materia lin preray m;)tir(i)y;)/. Upon the same 
matter or subject. Statutes "in pari materia" are those 
relating to the same person or thing or having a com
mon purpose. Undercofler v. L.C. Robinson & Sons, 
Inc., 111 Ga.App. 411, 141 S.E.2d 847, 849. This rule of 
statutory construction, that statutes which relate to the 
same subject matter should be read, construed and ap
plied together so that the legislature's intention can be 
gathered from the whole of the enactments, applies only 
when the particular statute is ambiguous. Kimes v. 
Bechtold, W.Va., 342 S.E.2d 147, 150. 
In patiendo lin preshiyendow I. In suffering, permitting, 
or allowing. 
In pectore judicis lin pekt;)riy juwd;)s;)sl. In the breast 
of the judge. A phrase applied to a judgment. 
In pejorem partem lin p;)jor;)m part;)m/. In the worst 
part; on the worst side. 
Inpeny and outpeny linpeniy rend awtpeniy/. In old 
English law, a customary payment of a penny on enter
ing into and going out of a tenancy (pro exitu de tenura, 
et pro ingressu). 
In perpetuam rei memoriam lin p;)rpetyuw;)m riyay 
m;)moriy;)m/. In perpetual memory of a matter; for 
IN PR)EMISSORUM FIDEM 
preserving a record of a matter. Applied to depositions 
taken in order to preserve the testimony of the depo
nent. 
In perpetuity lin p�rp;)tyUw;)tiy/. Endless duration; 
lasting; forever. 
In perpetuum rei testimonium lin p;)rpetyuw;)m riyay 
test;)mown(i)y;)m/. In perpetual testimony of a matter; 
for the purpose of declaring and settling a thing forever. 
In person. A party, plaintiff or defendant, who sues out 
a complaint, writ or other process, or appears to conduct 
his case in court himself, instead of through a solicitor 
or counsel, is said to act and appear in person. See Pro 
se. 
In personam lin p;)rsown;)m/. Against the person. Ac
tion seeking judgment against a person involving his 
personal rights and based on jurisdiction of his person, 
as distinguished from a judgment against property (i.e. 
in rem). Type of jurisdiction or power which a court 
may acquire over the defendant himself in contrast to 
jurisdiction over his property. See also In personam 
jurisdiction; In rem; Jurisdiction in personam. 
In personam actio est, qua cum eo agimus qui obliga
tus est nobis ad faciendum aliquid vel dandum lin 
p;)rsown;)m reksh(iy)ow est, kwey k�m iyow rej;)m;)s kway 
obl;)geyt;)s est nowb;)s red feys(h)iyend;)m rel;)kwid vel 
drend;)m/. The action in personam is that by which we 
sue him who is under obligation to us to do something or 
give something. 
In personam jurisdiction. Power which a court has 
over the defendant himself in contrast to the court's 
power over the defendant's interest in property (quasi in 
rem) or power over the property itself (in rem). A court 
which lacks personal jurisdiction is without power to 
issue an in personam judgment. Pennoyer v. Neff, 95 
U.S. 714, 24 L.Ed. 565. See also In rem; Jurisdiction in 
personam. 
In pios usus lin pay;)s yuwz;)sl. For pious uses; for 
religious purposes. 2 Bl.Comm. 505. 
In plena vita lin pliyn;) vayt;) I . In full life. 
In pleno comitatu lin pliynow kom;)teyt(y)uw/. In full 
county court. 3 Bl.Comm. 36. 
In pleno lumine lin pliynow l(y)uwm;)niy/. In public; 
in common knowledge; in the light of day. 
In prenalibus causis benignius interpretandum est 
lin p;)neyl;)b;)s koz;)s b;)nign(i)y;)s int�rpr;)trend;)m est/. 
In penal causes or cases, the more favorable interpreta
tion should be adopted. 
In posse lin posiy/. In possibility; not in actual exist
ence. See In esse. 
In potestate parentis lin powt;)steytiy p;)rent;)sl. In the 
power of a parent. 2 Bl.Comm. 498. 
In prremissorum fidem lin prem;)sor;)m fayd;)m/. In 
confirmation or attestation of the premises. A notarial 
phrase.

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IN PRJESENTI 
In prreparatoriis ad judicium favetur actori lin 
prep�r�toriy�s red juwdish(iy)�m f�viyt�r rektoray/. In 
things preceding judgment the plaintiff is favored. 
In prresenti lin pr�z(mtay I. At the present time. 2 
Bl.Comm. 166. Used in opposition to in futuro. Van 
Wyck v. Knevals, 106 U.S. 360, 1 S.Ct. 336, 27 L.Ed. 20 l. 
In prresentia majoris potestatis, minor potestas cessat 
lin pr�zensh(iy)� m�jor�s powt�steyt�s, mayn�r p�testres 
ses�t/. In the presence of the superior power, the inferi
or power ceases. The less authority is merged in the 
greater. 
In prender lin prend�r/. L. Fr. In taking. A term 
applied to such incorporeal hereditaments as a party 
entitled to them was to take for himself; such as com
mon. 3 Bl.Comm. 15. See In render. 
In pretio emptionis et venditionis, naturaliter licet 
contrahentibus se circumvenire lin presh(iy)ow 
em(p)sh(iy)own�s et v�ndishiyown�s, nrety�reyl�t�r lays�t 
kontr�hent�b�s siy s,}rk�mv�nayriy I. In the price of 
buying and selling, it is naturally allowed to the con
tracting parties to overreach each other. 
In primis lin praym�slimpro I. In the first place. A 
phrase used in argument. 
In principio lin pr�nsip(i)yow/. At the beginning. 
In promptu lin prom(p)t(y)uw/impro I. In readiness; at 
hand. Usually written impromptu. 
In propria causa nemo judex lin prowpriy;} koz� 
niymow juwd�ksl. No one can be judge in his own 
cause. 
In propria persona lin prowpriy� p�rsown�/. In one's 
own proper person. It was formerly a rule in pleading 
that pleas to the jurisdiction of the court must be plead 
in propria persona, because if pleaded by attorney they 
admit the jurisdiction, as an attorney is an officer of the 
court, and he is presumed to plead after having obtained 
leave, which admits the jurisdiction. See Pro se. 
Inquest. The inquiry by a coroner or medical examiner, 
sometimes with the aid of a jury, into the manner of the 
death of any one who has been killed, or has died 
suddenly under unusual or suspicious circumstances, or 
by violence, or while in prison. 
A body of men appointed by law to inquire into 
certain matters. The grand jury is sometimes called the 
"grand inquest." The judicial inquiry made by a jury 
summoned for the purpose is called an "inquest." The 
finding of such men, upon an investigation, is also called 
an "inquest." 
See also Inquisition. 
Coroner's inquest. See Coroner. 
Inquest, arrest of. See Arrest. 
Inquest jury. See Jury. 
Inquest of office. In old English practice, an inquiry 
made by the king's (or the queen's) officer, his sheriff, 
coroner, or escheator, virtute officii, or by writ sent to 
them for that purpose, or by commissioners specially 
792 
appointed, concerning any matter that entitles the king 
to the possession of lands or tenements, goods or chat
tels; as to inquire whether the king's tenant for life died 
seised, whereby the reversion accrues to the king; 
whether A., who held immediately of the crown, died 
without heir, in which case the lands belong to the king 
by escheat; whether B. be attainted of treason, whereby 
his estate is forfeited to the crown; whether C., who has 
purchased land, be an alien, which is another cause of 
forfeiture, etc. 3 Bl.Comm. 258. These inquests of 
office were most frequent in practice during the continu
ance of the military tenures; and were devised by law as 
an authentic means to give the king his right by solemn 
matter of record. Id. 258, 259. Sometimes simply 
termed "office," as in the phrase "office found" (q. v.). 
Ahlantic & P. R. Co. v. Mingus, 165 U.S. 413, 17 S.Ct. 
348, 41 L.Ed. 770. 
Inquilinus linkw�layn�s/. In Roman law, a tenant; one 
who hires and occupies another's house; but particular
ly, a tenant of a hired house in a city, as distinguished 
from colon us, the hirer of a house or estate in the 
country. 
Inquirendo liIJkw�rendow/. An authority given to some 
official person to institute an inquiry concerning the 
crown's interests. 
Inquiry court. See Court of inquiry; Inquest. 
Inquiry notice. Information which is charged to a per
son where a duty is imposed upon him by law to make a 
reasonable investigation; the information which such 
investigation would have revealed is imputed to such 
person. 
Inquiry, writ of. A common law writ (now obsolete), 
sued out by a plaintiff in a case where the defendant 
had let the proceedings go by default, and an interlocu
tory judgment had been given for damages generally, 
where the damages did not admit of calculation. It 
issued to the sheriff of the county in which the venue 
was laid, and commanded him to inquire, by a jury of 
twelve men, concerning the amount of damages. The 
sheriff thereupon tried the cause in his sheriffs court, 
and some amount was always returned to the court. 
But the return of the inquest merely informed the court, 
which could, if it chose, in all cases assess damages and 
thereupon give final judgment. 
Inquisitio IiIJkw�zish(iy)ow/. In old English law, an 
inquisition or inquest. Inquisitio post mortem, an inqui
sition after death. An inquest of office held, during the 
continuance of the military tenures, upon the death of 
every one of the king's tenants, to inquire of what lands 
he died seised, who was his heir, and of what age, in 
order to entitle the king to his marriage, wardship, 
relief, primer seisin, or other advantages, as the circum
stances of the case might turn out. 3 Bl.Comm. 258. 
Inquisitio patrice, the inquisition of the country; the 
ordinary jury, as distinguished from the grand assise. 
Inquisition linkw�zish�n/. An i�quiry or inquest; par
ticularly, an investigation of certain facts made by a 
sheriff, together with a jury impaneled by him for the

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793 
purpose. The instrument of writing on which their 
decision is made is also called an inquisition. In its 
broadest sense, "inquisition," includes any judicial in
quiry. See Inquest. 
Inquisition after death. See Inquest; Inquisitio. 
Inquisitor I :mkwiz:lt:lr I. A designation of sheriffs, coro
ners super visum corporis, and the like, who have power 
to inquire into certain matters. 
In Ecclesiastical law, the name of an officer who is 
authorized to inquire into heresies, and the like, and to 
punish them. A judge. 
In quo quis delinquit, in eo de jure est puniendus lin 
kwow kwis d:llilJkw:lt, in iyow diy juriy est pyuwni
y€md:ls/. In whatever thing one offends, in that is he 
rightfully to be punished. The punishment shall have 
relation to the nature of the offense. 
In re lin riy/. In the affair; in the matter of; concern
ing; regarding. This is the usual method of entitling a 
judicial proceeding in which there are not adversary 
parties, but merely some res concerning which judicial 
action is to be taken, such as a bankrupt's estate, an 
estate in the probate court, a proposed public highway, 
etc. It is also sometimes used as a designation of a 
proceeding where one party makes an application on his 
own behalf, but such proceedings are more usually enti
tled "Ex parte __ " 
In rebus lin riyb:ls/. (Lat.) In things, cases, or matters. 
In rebus manifestis, errat qui auctoritates legum 
allegat; quia perspicua vera non sunt probanda lin 
riyb:ls mren:lfest:ls, ehr:lt kway oktor:lteytiyz liyg:lm 
rel:lg:lt; kwaY:l p:lrspikyuw:l vir:l non s.Jnt pr:lbrend:l/. In 
clear cases, he mistakes who cites legal authorities; for 
obvious truths are not to be proved. Applied to cases 
too plain to require the support of authority; "because," 
says the report, "he who endeavors to prove them ob
scures them." 
In rebus qure sunt favorabilia animre, quamvis sunt 
damnosa rebus, fiat aliquando extensio statuti lin 
riyb:ls kwiy s.Jnt feYV:lr:lbil(iY):l ren:lmiy, kwremv:ls s.Jnt 
dremnows:l riyb:ls, faY:lt rel:lkwrendow :lkstensh(iy)ow 
st:ltyuwtay I. In things that are favorable to the spirit, 
though injurious to things, an extension of a statute 
should sometimes be made. 
In re communi melior est conditio prohibentis lin riy 
k:lmyuwnay miyl(i)Y:lr est k:lndish(iy)ow prow
h:lbent:ls/. In common property the condition of the one 
prohibiting is the better. In other words, either co-own
er has a right of veto against the acts of the other. Gulf 
Refining Co. of Louisiana v. Carroll, 145 La. 299, 82 So. 
277, 279. 
In re communi neminem dominorum jure facere 
quicquam, invito altero, posse lin riy k:lmyliwnay 
nem:ln:lm dom:lnor:lm juriy feys:lriy kwaykw:lm, :lnvay
tow olt:lrow, posiy/. One co-proprietor can exercise no 
authority over the common property against the will of 
the other. In other words, either co-owner has a right of 
veto against the acts of the other. 
IN REM 
In re communi potior est conditio prohibentis lin riy 
k:lmyuwnay powsh(iY):lr est k:lndish(iy)ow prowh:l
bent:ls/. In a partnership the condition of one who 
forbids is the more favorable. 
In re dubia, benigniorem interpretationem sequi, 
non minus justius est quam tutius lin riy d(y)uwbiY:l, 
b:lnigniyor:lm :lnt.Jrpr:lteyshiyown:lm sekway, non 
mayn:ls j�st(i)Y:lS est kwrem tyuwsh(iY):ls/. In a doubtful 
matter, to follow the more liberal interpretation is not 
less the juster than the safer course. 
In re dubia, magis inficiatio quam affirmatio intelli· 
genda lin riy d(y)uwbiY:l, meyj:ls :lnfis(h)iyeysh(iy)ow 
kwrem ref:lrmeysh(iy)ow :lntel:ljend:l/. In a doubtful mat
ter, the denial or negative is to be understood [or regard
ed], rather than the affirmative. 
In regard to lin r:lgard tuw/. Concerning; relating to; 
in respect of; with respect to; about. Hart v. Hart, 181 
Iowa 527, 164 N.W. 849, 850. 
In re lupanari, testes lupanares admittentur lin riy 
l(y)uwp:lneray, testiyz l(y)uwp:lneriyz redm:ltent:lr/. In a 
matter concerning a brothel, prostitutes are admitted as 
witnesses. 
In rem lin rem/. A technical term used to designate 
proceedings or actions instituted against the thing, in 
contradistinction to personal actions, which are said to 
be in personam. 
"In rem" proceedings encompass any action brought 
against person in which essential purpose of suit is to 
determine title to or to affect interests in specific proper
ty located within territory over which court has jurisdic
tion. ReMine ex reI. Liley v. District Court for City and 
County of Denver, Colo., 709 P.2d 1379, 1382. It is true 
that, in a strict sense, a proceeding in rem is one taken 
directly against property, and has for its object the 
disposition of property, without reference to the title of 
individual claimants; but, in a larger and more general 
sense, the terms are applied to actions between parties, 
where the direct object is to reach and dispose of proper
ty owned by them, or of some interest therein. Such are 
cases commenced by attachment against the property of 
debtors, or instituted to partition real estate, foreclose a 
mortgage, or enforce a lien. Pennoyer v. Neff, 95 U.S. 
714, 24 L.Ed. 565. In the strict sense of the term, a 
proceeding "in rem" is one which is taken directly 
against property or one which is brought to enfo:r:ce a 
right in the thing itself. 
Actions in which the court is required to have control 
of the thing or object and in which an adjudication is 
made as to the object which binds the whole world and 
not simply the interests of the parties to the proceeding. 
Flesch v. Circle City Excavating & Rental Corp., 137 
Ind.App. 695, 210 N.E.2d 865. 
See also In personam; In rem jurisdiction; Quasi in rem 
jurisdiction. 
Judgment in rem. See that title. 
Quasi in rem. A term applied to proceedings which are 
not strictly and purely in rem, but are brought against 
the defendant personally, though the real object is to 
deal with particular property or subject property to the

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IN REM 
discharge of claims asserted; for example, foreign at
tachment, or proceedings to foreclose a mortgage, re
move a cloud from title, or effect a partition. Freeman 
v. Alderson, 11 9 U.S. 185, 7 S.Ct. 165, 30 L.Ed. 372. An 
action in which the basis of jurisdiction is the defen
dant's interest in property, real or personal, which is 
within the court's power, as distinguished from in rem 
jurisdiction in which the court exercises power over the 
property itself, not simply the defendant's interest 
therein. 
In rem actio est per quam rem nostram qure ab alio 
possidetur petimus, et semper adversus eum est qui 
rem possidet. lin rem aksh(iy)ow est p�r kwrem rem 
n6str�m kwiy reb eyliyow pos�diyt�r pet�m�s, et semp�r 
redv�rs�s iy�m est kway rem p6s�d�t/. The action in 
rem is that by which we seek our property which is 
possessed by another, and is always against him who 
possesses the property. 
In rem jurisdiction. Refers to an action that is taken 
directly against the defendant's property. The term 
may be contrasted with in personam jurisdiction. Power 
over a thing possessed by a court which allows it to seize 
and hold the object for some legal purpose; e.g. boat on 
which narcotics are found. Calero Toledo v. Pearson 
Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 
L.Ed.2d 452. See also Jurisdiction in rem; Jurisdiction 
quasi in rem. 
In rem mortgage. Foreclosure of mortgage is in the 
nature of an in rem proceeding but it approximates 
more closely a quasi in rem action because it is directed 
to the extinguishment of the rights of mortgagor as well 
as all others. 
In render. A thing is said to lie in render when it must 
be rendered or given by the tenant; as rent. It is said to 
lie in prender when it consists in the right in the lord or 
other person to take something. See In prender. 
In re pari potiorem causam esse prohibentis constat 
lin riy peray powshiy6r�m k6z;)m esiy prowh�bent�s 
k6nst�t/. In a thing equally shared [by several] it is 
clear that the party refusing [to permit the use of it] has 
the better cause. A maxim applied to partnerships, 
where one partner has a right to withhold his assent to 
the acts of his copartner. 
In re propria iniquum admodum est alicui licentiam 
tribuere sententire lin riy pr6wpriy� �miykw�m 
redm�d�m est rel�k(yuw)ay l;)sensh(iy)�m tr�byuw�riy 
sentenshiy(iy)/. It is extremely unjust that any one 
should be judge in his own cause. 
In republica maxime conservanda sunt jura belli lin 
r�p�bl�k� mreks;)miy kons�rvrend� s�nt jur� belay/. In a 
state the laws of war are to be especially upheld; 
In rerum natura lin rir�m n�tyUr;)/. In the nature of 
things; in the realm of actuality; in existence. In a 
dilatory plea, an allegation that the plaintiff is not in 
rerum natura is equivalent to averring that the person 
named is fictitious. 3 Bl.Comm. 30l. 
In respect of decedent. See Income in respect of dece
dent. 
794 
In restitutionem, non in prenam hreres succedit lin 
rest�t(y)uwshiy6wn�m, n6n in piyn�m hiriyz s�ksiyd�t/. 
The heir succeeds to the restitution, not to the penalty. 
An heir may be compelled to make restitution of a sum 
unlawfully appropriated by the ancestor, but is not 
answerable criminally, as for a penalty. 
In restitutionibus benignissima interpretatio facien
da est lin rest�t(y)uwshiy6wn�b�s ben�gnis�m� int�rpr�
teysh(iy)ow feys(h)iyend� est/. The most benignant in
terpretation is to be made in restitutions. 
Inroll. A form of "enroll," used in the old books. See 
Enroll. 
Inrollment. See Enrollment. 
I.N.S. Immigration and Naturalization Service. 
Insane delusion. An "insane delusion" is a conception 
of a disordered mind which imagines facts to exist of 
which there is no evidence and belief in which is ad
hered to against all evidence and argument to contrary, 
and which cannot be accounted for on any reasonable 
hypothesis. In re Nigro's Estate, 243 Cal.App.2d 152, 52 
Cal.Rptr. 128, 133. 
Insanity. The term is a social and legal term rather 
than a medical one, and indicates a condition which 
renders the affected person unfit to enjoy liberty of 
action because of the unreliability of his behavior with 
concomitant danger to himself and others. The term is 
more or less synonymous with mental illness or psycho
sis. In law, the term is used to denote that degree of 
mental illness which negates the individual's legal re
sponsibility or capacity. 
Insanity as Defense to Crime 
There are various tests used by the courts to deter
mine criminal responsibility, or lack thereof, of a defen
dant who asserts the defense that he or she was insane 
at the time of the crime. A frequently used test as 
provided in Section 4.01 of the Model Penal Code is as 
follows: "A person is not responsible for criminal con
duct if at the time of such conduct as a result of mental 
disease or defect he lacks substantial capacity either to 
appreciate the criminality (wrongfulness) of his conduct 
or to conform his conduct to the requirements of law." 
Under this test there must be a sufficient causal link 
between the defendant's mental disease or defect and his 
inability to control his behavior. U.S. v. Jackson, 553 
F.2d 109, 11 3, 179 U.S.App.D.C. 375. This test, as de
fined by the American Law Institute, has been adopted 
(sometimes with slight modifications) by a number of 
states and also in most federal courts. See 18 U.S.C.A. 
§ 424l. 
If a defendant intends to rely upon the defense of 
insanity at the time of the alleged crime, he is required 
to notify the attorney for the government of such inten
tion. Fed.R.Crim.P. 12.2.; 18 U.S.C.A. § 4242. 
It is an affirmative defense to a prosecution under any 
Federal statute that, at the time of the commission of 
the acts constituting the offense, the defendant, as a 
result of a severe mental disease or defect, was unable to 
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795 
his acts. Mental disease or defect does not otherwise 
constitute a defense. 18 V.S.C.A. §§ 17(a), 4241. 
In certain states, once the insanity defense is made 
the burden is on the prosecution to prove that the 
defendant is mentally competent, while in others the 
burden is on the defense to prove the defendant is 
insane. In federal criminal cases, the defendant has the 
burden of proving the defense of insanity by clear and 
convincing evidence. 18 V.S.C.A. § 17. 
See also Automatism; Diminished respo nsibili ty doctrine; 
Durham rule; Irresistible impulse; M'Na ghten Rule and 
Right and wrong test, for various other tests used by 
courts to determine criminal responsibility of defendant 
who asserts insanity defense. See also Competency; 
Incompetency; Insane delusion; Lucid interval; Lunacy; 
Melancholia; Sanity hearing; Substantial capacity test; 
Uncontrollable impulse. 
Insanity as Affecting Capacity 
Capacity to make a will includes an intelligent under
standing of the testator's property, its extent and items, 
and of the nature of the act he is about to perform, 
together with a clear understanding and purpose as to 
the manner of its distribution and the persons who are 
to receive it. Lacking these, the testator is not mentally 
competent. The presence of insane delusions is not 
inconsistent with testamentary capacity, if they are of 
such a nature that they cannot reasonably be supposed 
to have affected the dispositions made by the will; and 
the same is true of the various forms of monomania and 
of all kinds of eccentricity and personal idiosyncrasy. 
But imbecility, senile dementia, and all forms of system
atized . mania which affect the understanding and judg
ment generally disable the person from making a valid 
will. To constitute "senile dementia," incapacitating 
one to make a will, there must be such a failure of the 
mind as to deprive the testator of intelligent action. See 
also Capacity. 
As a ground for voiding or annulling a contract or 
conveyance, insanity does not mean a total deprivation 
of reason, but an inability, from defect of perception, 
memory, and judgment, to do the act in question or to 
understand its nature and consequences. The insanity 
must have entered into and induced the particular con
tract or conveyance; it must appear that it was not the 
act of the free and untrammeled mind, and that on 
account of the diseased condition of the mind the person 
entered into a contract or made a conveyance which he 
would not have made if he had been in the possession of 
his reason. 
Most state statutes provide for annulment of a mar
riage because of insanity. Insanity sufficient to justify 
the annulment of a marriage means such a want of 
understanding at the time of the marriage as to render 
the party incapable of assenting to the contract of mar
riage. Also, under most state statutes, insanity, if suffi
cient in degree and/or duration, constitutes a ground for 
divorce. In general, the same degree of mental capacity 
which enables a person to make a valid deed or will is 
sufficient to enable him to marry. 
IN REM 
As a ground for restraining the personal liberty of the 
person (i.e. commitment), it may be said in general that 
the form of insanity from which he suffers should be 
such as to make his going at large a source of danger to 
himself or to others, though this matter is largely regu
lated by statute, and in many places the law permits the 
commitment of persons whose insanity does not mani
fest itself in homicidal or other destructive forms of 
mania, but who are incapable of caring for themselves 
and their property or who are simply fit subjects for 
treatment in hospitals and other institutions specially 
designed for the care of such patients. See Commitment. 
To constitute insanity such as will authorize the ap
pointment of a guardian or conservator, there must be 
such a deprivation of reason and judgment as to render 
him incapable of understanding and acting with discre
tion in the ordinary affairs of life; a want of sufficient 
mental capacity to transact ordinary business and to 
take care of and manage his property and affairs. 
Insanity as a plea or proceeding to avoid the effect of 
the statute of limitations means practically the same 
thing as in relation to the appointment of a guardian. 
On the one hand, it does not require a total deprivation 
of reason or absence of understanding. On the other 
hand, it does not include mere weakness of mind short 
of imbecility. It means such a degree of derangement as 
renders the subject incapable of understanding the na
ture of the particular affair and his rights and remedies 
in regard to it and incapable of taking discreet and 
intelligent action. The time of sanity required in order 
to allow the statute to begin to run is such as will enable 
the party to examine his affairs and institute an action, 
and is for the jury. 
There are a few other legal rights or relations into 
which the question of insanity enters, such as the capac
ity of a witness or of a voter; but they are governed by 
the same general principles. The test is capacity to 
understand and appreciate the nature of the particular 
act and to exercise intelligence in its performance. A 
witness must understand the nature and purpose of an 
oath and have enough intelligence and memory to relate 
correctly the facts within his knowledge. So a voter 
must understand the nature of the act to be performed 
and be able to make an intelligent choice of candidates. 
In either case, eccentricity, feeble-mindedness not 
amounting to imbecility, or insane delusions which do 
not affect the matter in hand, do not disqualify. Dis
trict of Columbia v. Armes, 107 V.S. 519, 2 S.Ct. 840, 27 
L.Ed. 618. 
Insanus est qui, abjecta ratione, omnia cum impetu 
et furore facit /inseyn;)s est kway ;)bjekt;) reyshiyowniy 
omniy;) k�m imp;)t(y)uw et fy;)roriy feys;)t/. He is insane 
who, reason being thrown away, does everything with 
violence and rage. 
In satisfactionibus non permittitur amplius fieri 
quam semel factum est lin sret;)sfrekshiyown;)b;)s non 
p;)rmit;)t;)r rempliy;)s fay;)ray kwrem sem;)l frekt;)m est/. 
In payments, more must not be received than has been 
received once for all.

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INSCRIBED 
Inscribed. Entered (e.g. a name) on a list or in a 
register. Type of government bonds, such as Series E, 
whose records are kept by the Federal Reserve Bank 
rather than by the Treasury Dept. 
Inscribere linskrib::lriy/. Lat. In the civil law, to sub
scribe an accusation. To bind one's self, in case of 
failure to prove an accusation, to suffer the same pun
ishment which the accused would have suffered had he 
been proved guilty. 
Inscriptio linskripsh(iy)ow/. Lat. In the civil law, a 
written accusation in which the accuser undertakes to 
suffer the punishment appropriate to the offense 
charged, if the accused is able to clear himself of the 
accusation. 
Inscription. In evidence, anything written or engraved 
upon a metallic or other solid substance, intended for 
great durability; as upon a tombstone, pillar, tablet, 
medal, ring, etc. 
The entry of a mortgage, lien, or other document at 
large in a book of public records; corresponding to 
"recording" or "registration." 
In civil law, an engagement which a person who 
makes a solemn accusation of a crime against another 
enters into that he will suffer the same punishment, if 
he has accused the other falsely, which would have been 
inflicted upon him had he been guilty. 
Inscriptiones linskripshiyowniyz/. The name given by 
the old English law to any written instrument by which 
anything was granted. 
Insecure. Unsafe and dangerous. Not secure or safe; 
not certain. Impairment or loss of security. See Accel
eration clause; Insecurity clause. 
Insecurity clause. Provision in contract that allows a 
creditor to make an entire debt come due if there is good 
reason to believe that the debtor cannot or will not pay. 
See also Acceleration clause. 
In separali lin sep::lreylay/. In several; in severalty. 
Insider. With respect to federal regulation of purchase 
and sale of securities, refers to anyone who has knowl
edge of facts not available to the general public (e.g., 
officers, directors, key employees, relatives). 15 U.S. 
C.A. § 78p(a). An insider is liable for insider stock 
trading under section 1O(b) of the Securities Exchange 
Act of 1934 and SEC Rule 10b-5 only where he or she 
fails to disclose material non-public information before 
trading on it and thus makes secret profits. Dirks v. 
S.E.C., 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911. In 
determining whether a person, not a director or officer, 
is a corporate "insider" who as a purchaser of stock has 
a duty to disclose material facts unknown to seller, the 
test is whether he had such a relationship to corporation 
that he had access to information which should be used 
only for corporate purposes and not for personal benefit 
of anyone. Ross v. Licht, D.C.N.Y., 263 F.Supp. 395, 
409. See also In sider information; In sider reports; In sider 
trading; Rule 10 b-5; Short swing profits; Tippees. 
796 
For purposes of Bankruptcy Code, "insider" is entity 
or person with sufficiently close relationship with debtor 
that his conduct is made subject to closer scrutiny than 
those dealing at arm's length with debtor. In re Acme
Dunham Inc., D.C.Me., 50 B.R. 734, 739; Bankruptcy 
Code § 101. 
Insider information. Information about a company's 
financial situation that is obtained by insiders (officers, 
directors, employees, etc.), before the public obtains it. 
True inside information is usually only known by corpo
rate officials or other "insiders." SEC rules and court 
decisions restrict stock trading by insiders on the basis 
of such information. See also Insider; Insider trading; 
Tippees. 
Insider reports. Monthly reports required by Securities 
and Exchange Commission from directors, officers and 
stockholders of their transactions in stock of which they 
own more than 10% of such shares. 15 U.S.C.A. 
§ 78p(a). 
Insider trading. Term refers to transactions in shares 
of publicly held corporations by persons with inside or 
advance information on which the trading is based. 
Usually the trader himself is an insider with an employ
ment or other relation of trust and confidence with the 
corporation. Such transactions must be reported 
monthly to Securities and Exchange Commission (see 
Insider reports). 
The Supreme Court has established rules governing 
liability for insider trading under section 10(b) of the 
Securities Exchange Act of 1934 and SEC Rule 1Ob-5. 
Two elements for establishing a violation of section 1O(b) 
and Rule 1Ob-5 by corporate insiders are the existence 
of a relationship affording access to inside information 
intended to be available only for a corporate purpose, 
and the unfairness of allowing a corporate insider to 
take advantage of that information by trading without 
disclosure. Chiarella v. United States, 445 U.S. 222, 100 
S.Ct. 1108, 63 L.Ed.2d 348; Dirks v. S.E.C., 463 U.S. 646, 
103 S.Ct. 3255, 77 L.Ed.2d 911. See Insider. 
Insidiatores viarum linsidiY::ltoriyz vayer::lm/. Lat. 
Highwaymen; persons who lie in wait in order to com
mit some felony or other misdemeanor. 
Insignia linsign(i)Y::l/. Ensigns or arms; distinctive 
marks; badges; indicia; characteristics. 
Insiliarius I insiliyeriY::ls I . An evil counsellor. 
Insilium linsil(i)Y::lm/. Evil advice or counsel. 
In simili materia lin sim::llay m::ltir(i)Y::l/. Dealing with 
the same or a kindred subject-matter. 
Insimul lins::lm::lll. Lat. Together; jointly. 
Insimul computassent lins::lm::ll kompY::ltres::lntl. They 
accounted together. In common law pleading, the name 
of the count in assumpsit upon an account stated; it 
being averred that the parties had settled their accounts 
together, and defendant engaged to pay plaintiff the 
balance.

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797 
Insimul tenuit lins;}m;}l tenyuw;}t/. One species of the 
writ of formedon brought against a stranger by a copar
cener on the possession of the ancestor, etc. 
Insinuacion liynsiynuwasyown/. In Spanish law, the 
presentation of a public document to a competent judge, 
in order to obtain his approbation and sanction of the 
same, and thereby give it judicial authenticity. 
Insinuare linsinyuweriy/. Lat. In the civil law, to put 
into; to deposit a writing in court, answering nearly to 
the modern expression "to file." Si non mandatum actis 
insinuatum est, if the power or authority be not deposit
ed among the records of the court. To declare or ac
knowledge before a judicial officer; to give an act an 
official form. 
Insinuatio linsinyuweysh(iy)ow/. Lat. In old English 
law, information or suggestion. Ex insinuatione, on the 
information. 
Insinuation. To hint or suggest doubt or suspicion. 
In the civil law, the transcription of an act on the 
public registers like our recording of deeds. It was not 
necessary in any other alienation but that appropriated 
to the purpose of donation. 
Insinuation of a will. In the civil law, the first produc
tion of a will, or the leaving it with the registrar, in 
order to its probate. 
In solido lin sol;}dow/. In the civil law, for the whole; 
as a whole. An obligation in solido is one where each of 
the several obligors is liable for the whole; that is, it is 
joint and several. Henderson v. Wadsworth, 11 5 V.S. 
264, 6 S.Ct. 40, 29 L.Ed. 377. Possession in solidum is 
exclusive possession. When several persons obligate 
themselves to the obligee by the terms "in solido, " or 
use any other expressions which clearly show that they 
intend that each one shall be separately bound to per
form the whole of the obligation, it is called an "obli
gation in solido " on the part of the obligors. 
In solidum lin sol;}d;}m/. For the whole. Si plures sint 
fidejussores, quotquot erunt numero, singuli in solidum 
tenentur, if there be several sureties, however numerous 
they may be, they are individually bound for the whole 
debt. In parte sive in solidum, for a part or for the 
whole. 
In solo lin sowlow/. In the soil or ground. In solo 
alieno, in another's ground. In solo proprio, in one's 
own ground. 
Insolvency. The condition of a person or business that 
is insolvent; inability or lack of means to pay debts. 
Such a relative condition of a person's or entity's assets 
and liabilities that the former, if all made immediately 
available, would not be sufficient to discharge the latter. 
Vnder bankruptcy law, the condition of a person or firm 
that is unable to pay debts as they fall due, or in the 
usual course of trade or business. Financial condition 
such that businesses' or person's debts are greater than 
aggregate of such debtor's property at a fair valuation. 
American Nat. Bank & Trust Co. of Chicago, Ill. v. Bone, 
C.A.Mo., 333 F.2d 984, 987. In general, state insolvency 
INSPECTION LAWS 
laws have been superseded by the Federal Bankruptcy 
Code (11 V.S.C.A.). See Ban kruptcy proceedings. 
"Insolvency" under the Bankruptcy Code is defined in 
§ 1Ol. 
"Technical" insolvency is a situation in which a firm 
is unable to meet its current obligations as they come 
due, even though the value of its assets may exceed its 
liabilities. 
Vnder V.C.C., a person is insolvent who either has 
ceased to pay his debts in the ordinary course of busi
ness or cannot pay his debts as they fall due or is 
insolvent within the meaning of the Federal Bankruptcy 
Law. V.C.C. § 1-201(23). 
Insolvency proceeding. Any proceeding intended to 
liquidate or rehabilitate the estate of the person in
volved, including any assignment for the benefit of cred
itors and any chapter proceeding under federal bank
ruptcy law. V.C.C. § 1-201(22). See Bankru ptcy pro
ceedings. 
In specie lin spiys(h)iy(iy)I . Specific; specifically. 
Thus, to decree performance in specie is to decree specif
ic performance. In kind; in the same or like form. A 
thing is said to exist in specie when it retains its exist
ence as a distinct individual of a particular class. 
Inspectator. A prosecutor or adversary. 
Inspection. To examine; scrutinize; investigate; look 
into; check over; or view for the purpose of ascertaining 
the quality, authenticity or conditions of an item, prod
uct, document, residence, business, etc. Word has 
broader meaning than just looking, and means to exam
ine carefully or critically, investigate and test officially, 
especially a critical investigation or scrutiny. State ex 
reI. State Farm Mutual Auto. Ins. Co. v. Rickhoff, Mo. 
App., 509 S.W.2d 485, 487. See also Freedom of Informa
tion Act; In camera inspection; Privacy laws. 
Discovery practice. Rights of parties in civil actions to 
inspect papers, documents, land, etc. of opposing party 
are governed by Fed.R. Civil P. 26 and 34. Similar 
rights of prosecutor and defendant in criminal cases are 
governed by Fed.R.Crim.P. 16. Vnder discovery rules 
and statutes, "inspection" is sufficiently broad to include 
testing of evidence, and is not necessarily confined to 
visual observation but is ordinarily understood to em
brace tests and examinations. State ex reI. Remington 
Arms Co., Inc. v. Powers, Okl., 552 P.2d 1150, 1152. See 
also Inspection of documents; Jencks Act; Subpoena 
duces tecum. 
Reasonable inspection. As relates to duty of employer to 
provide employee with proper instrumentalities with 
which to work, does not mean such an inspection as 
would necessarily or infallibly disclose a defect if one 
existed, but only such inspection as reasonably prudent 
man, in the exercise of ordinary care, would make. 
Inspection laws. Laws authorizing and directing the 
inspection and examination of various kinds of merchan
dise intended for sale, especially food, with a view to 
ascertaining its fitness for use, and excluding unwhole
some or unmarketable goods from sale that do not 
conform to standards prescribed by regulations, and

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INSPECTION LAWS 
directing the appointment of official inspectors for that 
purpose; e.g. grain or meat inspection laws. Patapsco 
Guano Co. v. Board of Agriculture, 171 U.S. 345, 18 S.Ct. 
862, 43 L.Ed. 191. State and federal inspection laws 
may also be concerned with employment safety condi
tions (e.g. Occupational Safety and Health Act (OSHA)); 
building construction safety (e.g. building ordinances); 
health conditions of restaurants or food processors; and 
safety conditions of motor vehicles. See Food and Drug 
Adminis tration; Occupational Safety and Health Adminis
tration. 
If a resident refuses permission to a fire, health, 
building, etc. inspector to inspect the premises, a search 
warrant will be required. Camara v. Municipal Court of 
etc. San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 
L.Ed.2d 930. A warrant is likewise required for inspec
tion of business premises by OSHA inspectors. Mar
shall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 
L.Ed.2d 305. 
See also Freedom of Information Act; Inspection rights; 
Inspection searches; Privacy laws. 
Inspection of documents. This phrase refers to the 
right of a party, in a civil action, to inspect and make 
copies of documents which are essential or material to 
the maintenance of his cause, and which are either in 
the custody of an officer of the law or in the possession 
of the adverse party. Fed.R Civil P. 26, 34 and 37. 
Such opportunity for inspection in criminal cases is 
afforded both the prosecutor and defendant under Fed. 
RCrim.P. 16. See also Subpoena duces tecum. 
Inspection rights. Buyer of goods has right to inspect 
them before payment or acceptance at any reasonable 
place and time and in any reasonable manner. U.C.C. 
§ 2-5 13(1). See also Ins pection. 
With respect to discovery in civil actions, Fed.R Civil 
P. 26 and 34 affords a party the right to inspect doc
uments, records, land, etc. of the other party. Similar 
rights are afforded the prosecutor and defendant under 
Fed.RCrim.P. 16. See also Inspection of documents; 
Subpoena duces tecum. 
Inspection searches. Administrative searches conduct
ed by local or state authorities for health or building law 
enforcement must be based on a warrant issued on 
probable cause. Camara v. Municipal Court of etc. San 
Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. 
A warrant is likewise required for inspection of business 
premises by OSHA inspectors. Marshall v. Barlow's, 
Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305. An 
exception to the warrant requirement is in cases involv
ing closely regulated industries where the commercial 
operator's privacy interest is adequately protected by 
detailed regulatory schemes authorizing warrantless in
spections. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 
2534, 69 L.Ed.2d 262; New York v. Burger, 482 U.S. 691, 
107 S.Ct. 26, 36, 96 L.Ed.2d 601. See also Inspection 
laws. 
Inspection, trial by. A mode of trial formerly in use in 
England, by which the judges of a court decided a point 
in dispute, upon the testimony of their own senses, 
without the intervention of a jury. This took place in 
798 
cases where the fact upon which issue was taken must, 
from its nature, be evident to the court from ocular 
demonstration, or other irrefragable proof; and was 
adopted for the greater expedition of a cause. 
Inspector. The name given to certain officers whose 
duties are to examine and inspect things over which 
they have jurisdiction. Officers whose duty it is to 
examine the quality of certain articles of merchandise, 
food, weights and measures, working conditions of busi
ness, structural soundness of building, etc.; e.g. federal 
grain or meat inspectors; OSHA inspectors; building 
inspectors; health inspectors. See also Inspection laws. 
Inspector general. Various agencies of the federal 
government have an office of Inspector General whose 
primary function is to conduct and supervise audits and 
investigations relating to programs and operations of 
the particular agency. 5 U.S.C.A.App. 
Inspectorship, deed of. In old English law, an instru
ment entered into between an insolvent debtor and his 
creditors, appointing one or more persons to inspect and 
oversee the winding up of such insolvent's affairs on 
behalf of the creditors. 
Inspeximus /inspeks;)m;)s/. (Lat.) We have seen. A 
word sometimes used in letters patent, reciting a grant, 
inspeximus such former grant, and so reciting it verba
tim; it then grants such further privileges as are 
thought convenient. 
Install. To place in a seat, give a place to; to set, place, 
or instate in an office, rank, or order, etc. To set up or 
fix in position for use or service. 
Installation. The ceremony of inducting or investing 
with any charge, office, or rank, as the placing a bishop 
into his see, a dean or prebendary into his stall or seat, 
or a knight into his order. The act by which an officer 
is put in public possession of the place he is to fill. The 
President of the United States, or a governor, is install
ed into office, by being sworn agreeably to the constitu
tion and laws. 
Installment. Partial payment of a debt or collection of a 
receivable. Different portions of the same debt payable 
at different successive periods as agreed. Partial pay
ments on account of a debt due. Kenney v. Los Feliz 
Inv. Co., 121 Cal.App. 378, 9 P.2d 225, 228. See Install
ment loan. 
Installment contract. Type of agreement calling for 
periodic performances and payments. 
An "installment contract" is one which requires or 
authorizes the delivery of goods in separate lots to be 
separately accepted, even though the contract contains a 
clause "each delivery is a separate contract" or its 
equivalent. U.C.C. § 2-612. 
See Installment land contract; Installment sale; Retail 
installment contract. 
Installment credit. Commercial arrangement in which 
buyer undertakes to pay in more than one payment and 
seller agrees to sell on such basis and in which a finance 
charge may be exacted. Such agreements are common-

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799 
ly subject to statutory disclosure regulation; e.g. Truth
in-Lending laws. See also Annual percentage rate. 
Installment land contract. Type of contract by which 
buyer is required to make periodic payments towards 
purchase price of land and only on the last payment is 
the seller required to deliver a deed. Also called a 
"contraCt for deed" or "long-term land contract." See 
also Land contract. 
Installment loan. A loan made to be repaid in specified, 
usually equal, amounts over a certain number of 
months. The contract specifies the amount and method 
of payment. Consumer installment loan contracts are 
subject to disclosure requirements of Truth-in-Lending 
Act (q.v.). See also Annual percentage rate; Balloon 
payment; Installment credit; Installment sale. 
Installment method. A method of accounting enabling 
a taxpayer to spread the recognition of gain on the sale 
of property over the payout period. Under this elective 
procedure, the seller computes the gross profit percent
age from the sale (i.e., the gain divided by the selling 
price) and applies it to each payment received to arrive 
at the gain to be recognized. Effective for tax years 
beginning after 1987, a restriction has been placed on 
the use of the installment method and dealers in real 
estate or personal property are not permitted to use the 
installment method to report gains from the sale of 
property. I.R.C. § 453. 
Installment note. See Installment loan. 
Installment plan. Commercial sales arrangement by 
which goods are sold and buyer pays for them in period
ic payments. See also Installment contract; Installment 
credit; Installment loan; Installment sale. 
Installment sale. Commercial arrangement by which 
buyer makes initial down payment and signs a contract 
for payment of the balance in installments over a period 
of time. In accounting for such sales, the seller may 
either account for the profits on basis of each install
ment payment received or the entire amount in the 
period of the sale; in latter case, reserves are estab
lished for bad debts, collection expenses and costs of 
reconditioning returned merchandise. See also Install
ment contract; Installment credit; Installment loan; Install
ment method; Truth-in-Lending Act. 
Retail installment sale. The sale of goods or the fur
nishing of services by a retail seller to a retail buyer for 
a deferred payment price payable in installments. Re
tail installment sales contracts are governed with re
spect to disclosure of terms and finance charges by 
Truth-in-Lending Act (q.v.). See also Annual percentage 
rate. 
Instance court. In English law, that division or depart
ment of the court of admiralty which exercised all the 
ordinary admiralty jurisdiction, with the single excep
tion of prize cases, the latter belonging to the branch 
called the "Prize Court." Now part of High Court. 
Instancia liynstansiya/. In Spanish law, the institution 
and prosecution of a suit from its commencement until 
definitive judgment. The first instance, "primera in-
IN STIRPES 
stancia, " is the prosecution of the suit before the judge 
competent to take cognizance of it at its inception; the 
second instance, "secunda instancia," is the exercise of 
the same action before the court of appellate jurisdic
tion; and the third instance, "tercera instancia," is the 
prosecution of the same suit, either by an application of 
revision before the appellate tribunal that has already 
decided the cause, or before some higher tribunal, hav
ing jurisdiction of the same. 
Instans est finis unius temporis et principium alteri
us linstrenz est fayn�s y�nay�s temp�r�s et prinsip(i)y�m 
olt�ray�s/. An instant is the end of one time and the 
beginning of another. 
Instant. Present, current, as instant case. 
Instantaneous crime. An "instantaneous" crime is one 
which is fully consummated or completed in and by a 
single act (such as arson or murder) as distinguished 
from one which involves a series or repetition of acts. 
Instantaneous death. See Death. 
Instanter linstrent�r/. Immediately; instantly; forth
with; without delay. Trial instanter was had where a 
prisoner between attainder and execution pleaded that 
he was not the same who was attainted. When a party 
was ordered to plead instanter, he was required to plead 
the same day. The term was usually understood to 
mean within twenty-four hours. 
Instantly. Immediately; directly; without delay; at 
once. 
Instar linstar/. Lat. Likeness; the likeness, size, or 
equivalent of a thing. Instar dentium, like teeth. Ins
tar omnium, equivalent or tantamount to all. 
In statu quo lin steyt(y)uw kwow/"stret(ytl. In the 
condition in which it was. Status quo. 
Instigate linst�geyt/. To stimulate or goad to an action, 
especially a bad action; one of its synonyms is "abet". 
Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 499. 
See Aid and abet; Entrapment. 
Instigation linst�geysh�n/. Incitation; urging; solicita
tion. The act by which one incites another to do some
thing, as to commit some crime or to commence a suit. 
See Aid and abet; Entrapment; Incite. 
In stipulationibus cum qureritur quid actum sit verba 
contra stipulatorem interpretanda sunt lin stipy�ley
shiyown�b�s k;)m kwir�t�r kwid rekt�m sit v�rb� kontr� 
stipy�l�tor�m int;)rpr�trend� s;)nt/. In the construction 
of agreements words are interpreted against the person 
using them. Thus, the construction of the stipulatio is 
against the stipulator, and the construction of the prom
issio against the promissor. 
In stipulationibus, id tempus spectatur quo contrahi
mus lin stipy�leyshiyown�b�s id temp�s spekteyt�r 
kwow bntrreh�m�s/. In stipulations, the time when we 
contract is regarded. 
Instirpare linst�rperiy/. To plant or establish. 
In stirpes lin st�rpiyz/. In the law of intestate succes
sion, according to the roots or stocks; by representation;

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IN STIRPES 
as distinguished from succession per capita. See Per 
capita; Per stirpes. 
Institor linst;)t;)r/. Lat. In the civil law, a clerk in a 
store; an agent. 
Institoria actio linst;)tor(i)y;) reksh(iy)ow/. Lat. In the 
civil law, the name of an action given to those who had 
contracted with an institor (q.v.) to compel the principal 
to performance. 
Institorial power linst;)tor(i)y;)l paw;)r/. In the civil 
law, the charge given to a clerk to manage a shop or 
store. 
Institute, v. To inaugurate or commence, as to institute 
an action. Post v. U. S., 161 U.S. 583, 16 S.Ct. 611, 40 
L.Ed. 816. To set up; to originate; to initiate; to start; 
to introduce. To nominate, constitute, or appoint, as to 
institute an heir by testament. See Institution. 
Institute, n. Act of instituting; something that is insti
tuted. A principle recognized as authoritative; also the 
organization which drafts and authors such author
itative principles; e.g. American Law Institute. See also 
Institution. 
In the civil law, a person named in the will as heir, 
but with a direction that he shall pass over the estate to . 
another designated person, called the "substitute." 
Instituted executor. An instituted executor is one who 
is appointed by the testator without any condition. 
Institutes. A name sometimes given to textbooks con
taining the elementary principles of jurisprudence, ar
ranged in an orderly and systematic manner. For ex
ample, the Institutes of Justinian, of Gaius, of Lord 
Coke. 
Institutes of Gaius. An elementary work of the Roman 
jurist Gaius; important as having formed the foundation 
of the Institutes of Justinian (q.v.). These Institutes 
were discovered by Niebuhr in 1816, in a codex rescrip
tus of the library of the cathedral chapter at Verona, 
and were first published at Berlin in 1820. 
Institutes of Justinian. One of the four component 
parts or principal divisions of the Corpus Juris Civilis, 
being an elementary treatise on the Roman law, in four 
books. This work was compiled from earlier sources 
(resting principally on the Institutes of Gaius), by a 
commission composed of Tribonian and two others, by 
command and under direction of the emperor Justinian, 
and was first published November 21, A.D. 533. 
Institutes of Lord Coke. The name of four volumes by 
Lord Coke, published A.D. 1628. The first is an exten
sive comment upon a treatise on tenures, compiled by 
Littleton, a judge of the common pleas, temp. Edward 
IV. This comment is a rich mine of valuable common
law learning, collected and heaped together from the 
ancient reports and Year Books, but greatly defective in 
method. It is usually cited by the name of "Co. Litt.," or 
as "1 Inst." The second volume is a comment upon old 
acts of parliament, without systematic order; the third a 
more methodical treatise on the pleas of the crown; and 
the fourth an account of the several species of courts. 
800 
These are cited as 2, 3, or 4 "Inst.," without any author's 
name. 
Theophilus' Institutes. A paraphrase of Justinian, 
made, it is believed, soon after A.D. 533. This para
phrase maintained itself as a manual of law until the 
eighth or tenth century. This text was used in the time 
of Hexabiblos of Harmenipulus, the last of the Greek 
jurists. It is also conjectured that Theophilus was not 
the editor of his own paraphrase, but that it was drawn 
up by some of his pupils after his explanations and 
lectures, inasmuch as it contains certain barbarous 
phrases, and the texts of the manuscripts vary greatly 
from each other. 
Institutio hreredis linst;)t(y)uwsh(iy)ow h;)riyd;)s/. Lat. 
In Roman law, the appointment of the hreres in the will. 
It corresponds very nearly to the nomination of an 
executor in English law. Without such an appointment 
the will was void at law, but the prretor (i.e., equity) 
would, under certain circumstances, carry out the inten
tions of the testator. 
Institution. The commencement or inauguration of any
thing, as the commencement of an action. The first 
establishment of a law, rule, rite, etc. Any custom, 
system, organization, etc., firmly established. An ele
mentary rule or principle. See also Institute. 
An establishment, especially one of eleemosynary or 
public character or one affecting a community. An 
established or organized society or corporation. It may 
be private in its character, designed for profit to those 
composing the organization, or public and charitable in 
its purposes, or educational (e.g. college or university). 
In re Peabody's Estate, 21 Cal.App.2d 690, 70 P.2d 249, 
250. A foundation, as a literary or charitable institu
tion. Prescott Courier v. Board of Sup'rs of Yavapai 
County, 49 Ariz. 423, 67 P.2d 483, 486. 
Civil law. The appointment of an heir; the act by 
which a testator nominates one or more persons to 
succeed him in all his rights active and passive. 
Political law. A law, rite, or ceremony enjoined by 
authority as a permanent rule of conduct or of govern
ment. An organized society, established either by law 
or the authority of individuals, for promoting any object, 
public or social. 
A system or body of usages, laws, or regulations, of 
extensive and recurring operation, containing within 
itself an organism by which it effects its own indepen
dent action, continuance, and generally its own further 
development. Its object is to generate, effect, regulate, 
or sanction a succession of acts, transactions, or produc
tions of a peculiar kind or class. We are likewise in the 
habit of calling single laws or usages "institutions," if 
their operation is of vital importance and vast scope, 
and if their continuance is in a high degree independent 
of any interfering power. 
Practice. Commencement of civil action or criminal 
prosecution. See Commence.

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801 
Public institution. One which is created and exists by 
law or public authority, for benefit of public in general; 
e.g., a public hospital, charity, college, university, etc. 
Institutional investors. Large investors, such as mutu
al funds, pension funds, insurance companies, and oth
ers who largely invest other people's money. 
Institutional lender. Banks, savings and loan associa
tions, and other businesses which make loans in the 
ordinary course of business, rather than individuals, 
credit unions, or companies which may make loans to 
employees. 
Institutiones Iinst�t(y)uwshiy6wniyz/. Lat. Works con
taining the elements of any science; institutions or 
institutes. One of Justinian's principal law collections, 
and a similar work of the Roman jurist Gaius, are so 
entitled. See Institutes. 
Instruct. To convey information as a client to an attor
ney, or as an attorney to a counsel, or as a judge to a 
jury. To authorize one to appear as advocate; to give a 
case in charge to the jury. 
Instructions to jury. See Jury instructions. 
Instrument. A formal or legal document in writing, 
such as a contract, deed, will, bond, or lease. A writing 
that satisfies the requisites of negotiability prescribed by 
U.C.C. Art. 3. A negotiable instrument (defined in 
U.C.C. § 3--104), or a security (defined in U.C.C. § 8-102) 
or any other writing which evidences a right to the 
payment of money and is not itself a security agreement 
or lease and is of a type which is in ordinary course of 
business transferred by delivery with any necessary 
indorsement or assignment. U.C.C. § 9-105(1). 
Anything reduced to writing, a document of a formal 
or solemn character, a writing given as a means of 
affording evidence. A document or writing which gives 
formal expression to a legal act or agreement, for the 
purpose of creating, securing, modifying, or terminating 
a right. A writing executed and delivered as the evi
dence of an act or agreement. Moore v. Diamond Dry 
Goods Co., 47 Ariz. 128, 54 P.2d 553, 554. Anything 
which may be presented as evidence to the senses of the 
adjudicating tribunal. 
Incomplete instrument. A paper whose contents show, 
at the time of signing, that it is intended to become an 
instrument but that is not an instrument because a 
necessary element is missing. See U.C.C. § 3--115(1). 
See also Bearer instrument; Bill; Commercial paper; 
Negotiable instruments; Note. 
Instrumenta linstr�m€mt�/. Lat. That kind of evidence 
which consists of writings not under seal; as court-rolls, 
accounts, and the like. 
Instrumental. Serviceable, helpful; serving as a means 
or agent; something by which an end is achieved. 
Instrumentality. Something by which an end is 
achieved; a means, medium, agency. Perkins v. State, 
61 Wis.2d 341, 212 N.W.2d 141, 146. 
Black's Law Dictionary 6th Ed.-18 
INSULA 
Instrumentality rule. Under this rule, corporate exist
ence will be disregarded where a corporation (subsidi
ary) is so organized and controlled and its affairs so 
conducted as to make it only an adjunct and instrumen
tality of another corporation (parent corporation), and 
parent corporation will be responsible for the obligations 
of its subsidiary. Taylor v. Standard Gas & Electric Co., 
C.C.A.Okl., 96 F.2d 693, 704. 
The so-called "instrumentality" or "alter ego" rule 
states that when a corporation is so dominated by anoth
er corporation that the subservient corporation becomes 
a mere instrument and is really indistinct from control
ling corporation, then the corporate veil of dominated 
corporation will be disregarded, if to retain it results in 
injustice. National Bond Finance Co. v. General Motors 
Corp., D.C.Mo., 238 F.Supp. 248, 255. 
Instrument of appeal. The document by which an 
appeal is brought in an English matrimonial cause from 
the president of the probate, divorce, and admiralty 
division to the full court. It is analogous to a petition. 
Instrument of evidence. Instruments of evidence are 
the media through which the evidence of facts, either 
disputed or required to be proved, is conveyed to the 
mind of a judicial tribunal; and they comprise persons 
and living things as well as writings. Demonstrative 
evidence. 
Insubordination. State of being insubordinate; disobe
dience to constituted authority. Refusal to obey some 
order which a superior officer is entitled to give and 
have obeyed. Term imports a wilful or intentional 
disregard of the lawful and reasonable instructions of 
the employer. Porter v. Pepsi-Cola Bottling Co. of Co
lumbia, 247 S.C. 370, 147 S.E.2d 620, 622. 
Insufficiency of evidence to support verdict. This 
phrase in a motion for new trial, motion for directed 
verdict, or for judgment notwithstanding the verdict, 
means that there is some evidence, but not enough in 
light of the evidence to the contrary to support a verdict. 
Arnold v. Haskins, 147 S.W.2d 469, 472, 347 Mo. 320. It 
does not mean that evidence is factually insufficient to 
support affirmative finding on an issue, but that there is 
no evidence to warrant submission of the issue. Gan
nett Outdoor Co. of Texas v. Kubeczka, Tex.App.-Hous. 
(14 Dist.), 710 S.W.2d 79, 87. See also Directed verdict; 
Dismissal; Judgment (Judgment notwithstanding ver
dict). Compare Sufficiency of evidence. 
Insufficient. Not sufficient; inadequate to some need, 
purpose, or use; wanting in needful value, ability, or 
fitness; incompetent; unfit, as insufficient food; insuffi
cient means. It is the antonym of "sufficient." Nissen 
v. Miller, 44 N.M. 487, 105 P.2d 324, 325. 
Insufficient funds. Bank term meaning that the draw
ers deposit balance is less than the amount of the check 
drawn on such account. See Bad check. 
Insula /ins(y)�l�/. Lat. An island; a house not connect
ed with other houses, but separated by a surrounding 
space of ground.

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INSULAR COURTS 
Insular courts. Federal courts established by Congress 
with jurisdiction over insular possessions of the United 
States. 
Insular possessions. Island territories of the U.S., e.g. 
Puerto Rico. 
Insulation period. The sixty days immediately preced
ing the expiration of a collective bargaining agreement 
when no representation petition may be filed. This is to 
permit the employer and incumbent union the opportu
nity to negotiate a new contract without rival claims for 
recognition. 
Insuper lins(y)uwp;}r/. Lat. Moreover; over and above. 
An old English exchequer term, applied to a charge 
made upon a person in his account. 
Insurable. Capable of being insured against loss, dam
age, illness, death, etc.; proper to be insured as based on 
standards of insurer; affording a sufficient ground for 
insurance. Greenberg v. Continental Casualty Co., 24 
Cal.App.2d 506, 75 P.2d 644, 649. 
Insurable interest. Such a real and substantial interest 
in specific property as will prevent a contract to indem
nify the person interested against its loss from being a 
mere wager policy. Such an interest as will make the 
loss of the property of pecuniary damage to the insured. 
A right, benefit, or advantage arising out of the property 
or dependent thereon, or any liability in respect thereof, 
or any relation thereto or concern therein, of such a 
nature that it might be so affected by the contemplated 
peril as to directly damnify the insured. Generally, an 
"insurable interest" exists where insured derives pecuni
ary benefit or advantage by preservation and continued 
existence of property or would sustain pecuniary loss 
from its destruction. Hinojosa v. Allstate Ins. Co., Tex. 
Civ.App., 520 S.W.2d 936, 938. 
In the case of life insurance, a reasonable expectation 
of pecuniary benefit from the continued life of another; 
also, a reasonable ground, founded upon the relation of 
the parties to each other, either pecuniary or of blood or 
affinity, to expect some benefit or advantage from the 
continuance of the life of the assured. Connecticut Mut. 
Life Insurance Co. v. Schaefer, 94 U.S. 457, 460, 24 L.Ed. 
251. Essential thing being that policy be obtained in 
good faith, not for purpose of speCUlating on hazard of 
life in which insured has no interest. Alexander v. 
Griffith Brokerage Co., 228 Mo.App. 773, 73 S.W.2d 418, 
423. 
Insurable value. Value of property for insurance pur
poses. Based on the value of the property, less inde
structible parts (land) for fire insurance. For title insur
ance purposes, the sales price (market value) is used. 
Insurance. A contract whereby, for a stipulated consid
eration, one party undertakes to compensate the other 
for loss on a specified subject by specified perils. The 
party agreeing to make the compensation is usually 
called the "insurer" or "underwriter;" the other, the 
"insured" or "assured;" the agreed consideration, the 
"premium;" the written contract, a "policy;" the events 
insured against, "risks" or "perils;" and the subject, 
802 
right, or interest to be protected, the "insurable inter
est." A contract whereby one undertakes to indemnify 
another against loss, damage, or liability arising from an 
unknown or contingent event and is applicable only to 
some contingency or act to occur in future. An agree
ment by which one party for a consideration promises to 
pay money or its equivalent or to do an act valuable to 
other party upon destruction, loss, or injury of some
thing in which other party has an interest. 
See also Additional insurance; Insurable interest; Lloyd's 
insurance; Lloyd's of London; Loss; Named insured; Par
tial limitation; PartiCipation; Policy of insurance; Premium; 
Pro rata clause; Reinsurance; Replacement insurance; 
Self-insurance. 
Classification 
Accident insurance. Form of insurance which under
takes to indemnify the assured against expense, loss of 
time, and suffering resulting from accidents causing him 
physical injury, usually by payment at a fixed rate per 
month while the consequent disability lasts, and some
times including the payment of a fixed sum to his heirs 
in case of his death by accident within the term of the 
policy. See also, Casualty insurance below. 
Accounts receivable insurance. Insurance coverage de
signed to protect against inability to collect because of 
damage to records which support the accounts. 
Additional insured. A person other than the named 
insured, such as the insured's spouse, who is protected 
under the terms of the contract. 
Air travel insurance. Form of life insurance which may 
be purchased by air travelers according to the terms of 
which the face value of the policy is paid to the named 
beneficiary in the event of death resulting from a partic
ular flight. 
All-risk insurance. Type of insurance policy which ordi
narily covers every loss that may happen, except by 
fraudulent acts of the insured. Miller v. Boston Ins. Co., 
218 A.2d 275, 278, 420 Pa. 566. Type of policy which 
protects against all risks and perils except those specifi
cally enumerated. 
Annuity insurance. An insurance contract calling for 
periodic payments to the insured or annuitant for a 
stated period or for life. 
Assessment insurance. A species of mutual insurance in 
which the policyholders are assessed as losses are in
curred. A contract by which payments to insured are 
not unalterably fixed, but dependent on collection of 
assessments necessary to pay amounts insured, while an 
"old-line policy" unalterably fixes premiums and defi
nitely and unchangeably fixes insurer's liability. 
Automobile insurance may embrace insurance against 
loss of or damage to a motor vehicle caused by fire, 
windstorm, theft, collision, or other insurable hazards, 
and also against legal liability for personal injuries or 
damage to property reSUlting from operation of the 
vehicle. Policy of indemnity to protect the operator and 
owner from liability to third persons. as a result of the

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803 
operation of the automobile. See also Collision insur
ance,' and No-fault auto insurance, below, this topic. 
Business insurance. Type of insurance which protects a 
business on the disability or death of a key employee. 
See also Key man life insurance, below. 
Business interruption insurance. Type of insurance 
which protects a business from losses due to inability to 
operate because of fire or other hazards. 
Cargo insurance. Insures risk that cargo will not be 
delivered in the same condition in which it was initially 
shipped. 
Casualty insurance. That type of insurance that is 
primarily concerned with losses caused by injuries to 
persons and legal liability imposed upon the insured for 
such injury or for damage to the property of others. 
Coinsurance. Provision in a policy that the liability of 
the insurer is limited to that proportion of the loss 
which the amount of insurance bears to a particular 
percentage of the value of property at the time of the 
loss. See also Coinsurance. 
Collision insurance. A form of automobile insurance 
that covers loss to the insured vehicle from its collision 
with another vehicle or object, but not covering bodily 
injury or liability also arising out of the collision. Type 
of coverage which protects insured for damage to his 
own property in an accident as contrasted with liability 
insurance which protects him in an action or claim for 
loss to another's property. 
See also Convertible collision insurance, below. 
Commercial insurance. Indemnity agreements, in the 
form of insurance bonds or policies, whereby parties to 
commercial contracts are to a designated extent guaran
teed against loss by reason of a breach of contractual 
obligations on the part of the other contracting party. 
To this class belong policies of contract credit and title 
insurance. 
Comprehensive insurance. See All-risk insurance, above. 
Concurrent insurance. Insurance coverage under two or 
more similar policies of varying dates and amounts. 
Convertible collision insurance. Type of collision cover
age generally carrying lower premium but requiring 
higher premium after first loss or claim; an alternative 
form of deductible collision coverage. 
Convertible insurance. A policy that may be changed to 
another form by contractual provision and without evi
dence of insurability. Usually used to refer to term life 
insurance convertible to permanent insurance. 
Convertible life insurance. Generally a form of term life 
insurance which gives the insured the right to change 
policy to permanent life insurance without medical ex
amination. 
Cooperative insurance. Type of non-stock mutual insur
ance in which the policyholders are the owners; may be 
assessable or nonassessable. 
INSURANCE 
Credit insurance. Type of insurance protection against 
losses due to death, disability, insolvency or bankruptcy 
of debtor. Policy covers balance of debt due, with pro
ceeds payable to creditor. Commonly offered by banks 
and other lenders. Terms and conditions of such are 
regulated by federal and state statutes; e.g. Truth-in
Lending laws. See also Credit insurance. 
Crime insurance. Type of insurance which protects in
sured from losses due to criminal acts against insured 
such as burglary, etc. Such insurance is sponsored by 
federal government for residents of certain high-crime 
localities. 
Crop insurance. Insurance coverage against financial 
loss due to destruction of agricultural products resulting 
from rain, hail, and other elements of nature. Such 
insurance is sponsored by Federal Crop Insurance Cor
poration. 
Decreasing term insurance. A term insurance policy 
where the premiums are uniform throughout its life, but 
the face value of the policy declines. Sometimes called 
a home protection plan because the face value declines 
much in the same way a mortgage due on a house 
declines. A form of life insurance that provides a death 
benefit of amount declining throughout the term of the 
contract to zero at the end of the term. 
Deposit insurance. Federally sponsored (Federal Depos
it Insurance Corp.) insurance coverage against loss of 
deposits due to bank or savings and loan closings. 
Directors' and officers' (D & 0) liability insurance. Such 
insures corporate directors and officers against claims 
based on negligence, failure to disclose, and to a limited 
extent, other defalcations. Such insurance provides cov
erage against expenses and to a limited extent fines, 
judgments and amounts paid in settlement. 
Disability insurance. See Disability insurance. 
Employer's liability insurance. In this form of insur
ance the risk insured against is the liability of the 
assured to make compensation or pay damages for an 
accident, injury, or death occurring to a servant or other 
employee in the course of his employment, either at 
common law or under statutes imposing such liability on 
employers. Coverage which protects employer as to 
claims not covered under worker's compensation insur
ance. 
Endowment insurance. Type of protection which com
bines life insurance and investment so that if the in
sured outlives the policy the face value is paid to him. 
If he does not outlive it, the face value is paid to his 
beneficiary. 
Errors and omissions insurance. Insurance that indem
nifies the insured for any loss sustained because of an 
error or oversight on his part. 
Excess insurance. Coverage against loss in excess of a 
stated amount or in excess of coverage provided under 
another insurance contract. 
Extended term insurance. A non-forfeiture provision in 
most policies which continues the existing amount of life

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insurance for as long a period of time as the contract's 
cash value will purchase term coverage. 
Family income insurance. Type of term insurance de
signed to give maximum coverage during the period of 
maximum family dependency. 
Fidelity insurance. Form of insurance in which the 
insurer undertakes to guaranty the fidelity of an officer, 
agent, or employee of the assured, or rather to indemni
fy the latter for losses caused by dishonesty or a want of 
fidelity on the part of such a person. See also Fidelity 
and guaranty insurance. 
Fire insurance. A contract of insurance by which the 
underwriter, in consideration of the premium, under
takes to indemnify the insured against all losses in his 
houses, buildings, furniture, ships in port, or merchan
dise, by means of accidental fire happening within a 
prescribed period. See also Loss payable clause; Pro 
rata distribution clause. 
First party insurance. Insurance which applies to the 
insured's own property or person. 
Fleet policy insurance. Type of blanket policy covering 
a number of vehicles of the same insured; e.g. covers 
pool or fleet of vehicles owned by business. 
Floater insurance. A form of insurance that applies to 
moveable property whatever its location, if within the 
territorial limits imposed by the contract. 
Flood insurance. Insurance indemnifying against loss 
by flood damage. Required by lenders in areas designat
ed as potential flood areas. The insurance is privately 
issued but federally subsidized. 
Fraternal insurance. The form of life or accident insur
ance furnished by a fraternal beneficial association, 
consisting in the undertaking to pay to a member, or his 
heirs in case of death, a stipulated sum of money, out of 
funds raised for that purpose by the payment of dues or 
assessments by all the members of the association. 
Government insurance. Life insurance underwritten 
and offered by Federal government to war veterans. 
See also National service life insurance; War risk insur
ance, below. 
Group health insurance. Provides protection to employ
ees or other members covered under group policy for 
hospital, surgical and other medical expenses. 
Group insurance. A form of insurance whereby individ
ual lives of a group of persons, usually employees, are in 
consideration of a flat periodical premium based on 
average age and paid either by employer in whole or 
partially by both employer and employee, insured each 
in a definite sum so long as insured remains in such 
employment and the premiums are paid. Holland v. 
Lincoln Nat. Life Ins. Co., 45 N.J.Super. 66, 131 A.2d 
428, 429. Coverage of number of individuals by means 
of single or blanket policy. McFarland v. Business 
Men's Assur. Co. of America, 105 Ga.App. 209, 124 
S.E.2d 432, 433. Type of insurance (life, medical, dental, 
automobile, legal) offered to employees or other homoge
neous group under . a single master policy. Generally, 
804 
each employee receives a certificate of participation 
instead of a policy. 
Group term life insurance. Life insurance coverage per
mitted by an employer for a group of employees. Such 
insurance is renewable on a year-to-year basis and does 
not accumulate in value (i.e., no cash surrender value is 
built up). The premiums paid by the employer on such 
insurance are not taxed to an employee on coverage of 
up to a specified amount per year. 
Guaranty or fidelity insurance. A contract whereby one, 
for a consideration, agrees to indemnify another against 
loss arising from the want of integrity or fidelity of 
employees and persons holding positions of trust, or 
embezzlements by them, or against the insolvency of 
debtors, losses in trade, loss by non-payment of notes, or 
against breaches of contract. 
Hail insurance. Type of insurance which provides pro
tection against loss of crops, grain, etc. because of hail 
storms. See also Crop insurance, above. 
Health insurance. A contract or agreement whereby an 
insurer is obligated to pay or allow a benefit of pecuni
ary value with respect to the bodily injury, disablement, 
sickness, death by accident or accidental means of a 
human being, or because of any expense relating there
to, or because of any expense incurred in prevention of 
sickness, and includes every risk pertaining to any of 
the enumerated risks. 
Homeowners insurance. Policy insuring individuals 
against any, some, or all of the risks of loss to personal 
dwellings or the contents thereof or the personal liabili
ty pertaining thereto. 
Hull insurance. Marine or aviation insurance covering 
loss to vessel or plane or its machinery or equipment. 
Indemnity insurance. Insurance which provides indem
nity against loss, in contrast to contracts which provide 
for indemnity against liability. The latter are known as 
liability contracts or policies, and the former as indem
nity contracts or policies. 
Inland marine insurance. Originally, a form of insur
ance protection for goods transported other than on the 
ocean. Now, term applies to a variety of coverages on 
floating personal property and to general liability as a 
bailee. 
Joint life insurance. Form of life insurance on two or 
more persons and payable on the death of the first to 
die. 
Key man life insurance. Type of life insurance written 
on the life of an important or key officer or employee in 
a business organization. The business is the beneficiary 
and is entitled to the proceeds on his death. See also 
Key man insurance. 
Last survivor insurance. Life insurance on two or more 
persons, the benefits of which are payable on the death 
of the last survivor.

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805 
Lease insurance. Protects against the loss sustained 
through the termination of a lease by hazards specifical
ly insured against such as, for example, fire. 
Level premium insurance. Type of insurance in which 
the cost is spread evenly over the premium paying 
period. 
Liability insurance. Insurance that covers suits against 
the insured for such damages as injury or death to other 
drivers or passengers, property damage, and the like. It 
is insurance for those damages for which the driver can 
be held liable. 
Liability insurance is that form of insurance which 
indemnifies against liability on account of injuries to the 
person or property of another. It is distinguished from 
uindemnity insurance" (see that title, above ), and may 
be issued to cover the liability of, for example, carriers, 
contractors, employers, landlords, manufacturers, driv
ers. 
Life insurance. A contract between the holder of a 
policy and an insurance company (i.e., the carrier) 
whereby the company agrees, in return for premium 
payments, to pay a specified sum (i.e., the face value or 
maturity value of the policy) to the designated benefi
ciary upon the death of the insured. 
That kind of insurance in which the risk contemplated 
is the death of a particular person; upon which event (if 
it occurs within a prescribed term, or, according to the 
contract, whenever it occurs) the insurer engages to pay 
a stipulated sum to the legal representatives of such 
person, or to a third person having an insurable interest 
in the life of such person. 
See also Life insurance proceeds; Life insurance trust; 
Term insurance (this topic). 
Group life insurance. Type of life insurance commonly 
offered by companies to their employees in which there 
is a master insurance contract providing life insurance 
benefits to each covered employee who holds a certifi
cate indicating his participation. See also Group term 
life insurance, above. 
Limited payment life insurance. Type of life insurance 
for which premiums are payable for a definite period 
after which the policy is fully paid. 
Straight life insurance or whole life insurance is insur
ance for which premiums are collected so long as the 
insured may live, whereas, term insurance is insurance 
which promises payment only within a stipulated term 
covered by the policy; though such term policies are 
commonly renewed each term. The premium for 
whole life insurance remains the same whereas the 
premium for term insurance increases with the age of 
the insured, i.e. as the risk increases. Also, whole life 
policies build up cash reserves, whereas term policies 
do not. See also Term insurance, below. 
Universal life insurance. Insurance over a specified 
period of time, which builds a cash value for policyhold
ers over time. This coverage emphasizes the separa
tion of the portion of the premium that is used to cover 
the insurance protection from the portion of the premi
um allocated to an investment that is used to build the 
INSURANCE 
policy's cash value. Investments are usually selected 
with a view to maximizing the rate of return. 
Variable life insurance. A distinct type of whole-life 
insurance in which some amount of death benefit is 
guaranteed by the insurer, but the total death benefit 
and the cash-value of the insurance before death de
pend on the investment performance of that portion of 
the premium which is allocated to a separate fund. 
Some variable-life insurance policies allow the insured 
to decide how the separate account is to be invested. 
Whole life insurance. A life insurance policy in which 
the insured pays a level premium for his or her entire 
life and in which there is a constantly accumulating 
cash value against which the insured can withdraw or 
borrow. Sometimes referred to as straight life insur
ance. 
Limited policy insurance. Type of coverage which offers 
protection against specific perils or accidents and 
against no others. 
Major medical insurance. Insurance protection against 
large medical, surgical and hospital expenses of the 
insured. 
Malpractice insurance. Type of liability insurance 
which protects professional people (e.g. doctors, lawyers, 
accountants) against claims of negligence brought 
against them. 
Manual rating insurance. Type of insurance in which 
the premium is set from a manual classifying types of 
risk on a general basis such as a particular industry 
without reference to the individual case. 
Marine insurance. A contract whereby one party, for a 
stipulated premium, undertakes to indemnify the other 
against certain perils or sea-risks to which his ship, 
freight, and cargo, or some of them, may be exposed 
during a certain voyage, or a fixed period of time. An 
insurance against risks connected with navigation, to 
which a ship, cargo, freightage, profits, or other insur
able interest in movable property may be exposed dur
ing a certain voyage or a fixed period of time. See also 
Inland marine insurance, above. 
Mortgage insurance. Insurance from which the benefits 
are intended by the policyowner to pay off the balance 
due on a mortgage upon the death of the insured or to 
meet the payments on a mortgage as they fall due in 
case of the death or disability of the insured. Insurance 
against loss to the mortgagees in the event of default 
and a failure of the mortgaged property to satisfy the 
balance owing plus costs of foreclosure. 
National service life insurance. Life insurance on ser
vicemen. The contract is between the U.S. Government 
and private insurers for benefit of servicemen. 
No-fault auto insurance. Type of automobile insurance 
in which claims for personal injury (and sometimes 
property damage) are made against the claimant's own 
insurance company (no matter who was at fault) rather 
than against the insurer of the party at fault. Under 
such state Uno-fault" statutes only in cases of serious 
personal injuries and high medical costs may the injured

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bring an action against the other party or his insurer. 
No-fault statutes vary from state to state in terms of 
scope of coverage, threshold amounts, threshold types 
(e.g. monetary or verbal), etc. 
Nonassessable insurance. Type of insurance in which 
the rate of premium is guaranteed and no additional 
assessments may be made against the policyholder. 
Old line life insurance. Insurance on a level or flat rate 
plan where, for a fixed premium payable without condi
tion at stated intervals, a certain sum is to be paid upon 
death without condition. 
Ordinary life insurance. Whole life and permanent in
surance as distinguished from term, group and industri
al insurance. 
Paid-up insurance. Insurance policy on which all pre
miums have been paid and on which no further premi
ums are due and for which benefits company is liable. 
Participating insurance. Type of insurance issued by a 
mutual company on which policyholder may participate 
in dividend distributions. 
Partnership insurance. Life insurance on lives of part
ners designed to enable surviving partners to buy out 
deceased partner's estate. Life or health insurance sold 
to a partnership, usually for guaranteeing business con
tinuity in case of disability or death of a partner. 
Patent insurance. Insurance against loss due to in
fringement of the insured's patent, or due to claim of 
infringement of the other's patent by the insured. 
Product liability insurance. Type of liability coverage 
which protects manufacturers and suppliers from claims 
for accidents arising out of the use of their products. 
Profits insurance. Policy that pays the insured for loss 
of profits he would have had if the damage or loss had 
not occurred. 
Public liability insurance. Insurance liability protection 
against claims arising out of the insured's property, 
conduct or the conduct of his agent. 
Reciprocal insurance. Type of insurance plan adminis
tered by an exchange rather than an insurance company 
and in which each insured is the insurer of the other 
members of the plan. 
Renewable term insurance. Type of term insurance in 
which the premiums are level during each term, but 
increases at each new term with the age of the insured. 
The insured generally has the right to renew for addi
tional terms without a medical examination. 
Retirement income insurance. Type of insurance in 
which the insurer guarantees payment of the policy if 
the insured dies before a certain age and an annuity if 
the insured survives beyond the specified period. 
Self insurance. Plan in which the insured (e.g. business) 
places aside in a fund sufficient sums to cover liability 
losses that may be sustained. Commonly, under such 
plan the business will self-insure itself up to a certain 
amount and then carry regular liability insurance to 
cover any excesses. 
806 
Single premium insurance. Type of policy on which the 
insured makes but one premium payment. 
Social insurance. A comprehensive welfare plan estab
lished by law, generally compulsory in nature, and 
based on a program which spreads the cost of benefits 
among the entire population rather than on individual 
recipients. The federal government began to use social 
insurance programs in 1935 with the passage of the 
Social Security Act. The basic federal and state ap
proaches to social insurance presently in use are: Old 
Age, Survivors, and Disability Insurance (i.e. social se
curity); Medicare and Medicaid; unemployment insur
ance; and worker's compensation. 
Split dollar insurance. Type of insurance in which the 
insurer divides the premium dollar between life insur
ance protection and investment for the benefit of the 
insured. 
Step-rate premium insurance. Type of insurance in 
which the premium may vary from time to time at the 
option of the insurer. 
Surety and fidelity insurance. Form of insurance which 
more approximates a bond which protects the insured 
against dishonesty of employees, agents and the public. 
Term insurance. Form of pure life insurance having no 
cash surrender or loan value and generally furnishing 
insurance protection for only a specified or limited peri
od of time; though such policy is usually renewable 
from term to term. See also Convertible life; Decreasing 
term; Extended term; Family income; Group term; Re
newable term insurance, above. 
Title insurance. A policy issued by a title company 
after searching the title, representing the state of that 
title and insuring the accuracy of its search against 
claims of title defects. Insurance against loss or damage 
resulting from defects or failure of title to a particular 
parcel of realty, or from the enforcement of liens exist
ing against it at the time of the insurance. This form of 
insurance is taken out by a purchaser of the property or 
one loaning money on mortgage, and is furnished by 
companies specially organized for the purpose, and 
which keep complete sets of abstracts or duplicates of 
the records, employ expert title-examiners, and prepare 
conveyances and transfers of all sorts. A "certificate of 
title" furnished by such a company is merely the formal
ly expressed professional opinion of the company's ex
aminer that the title is complete and perfect (or other
wise, as stated), and the company is liable only for a 
want of care, skill, or diligence on the part of its examin
er; whereas an "insurance of title" warrants the validi
ty of the title in any and all events. It is not always 
easy to distinguish between such insurance and a "guar
anty of title" given by such a company, except that in 
the former case the maximum limit of liability is fixed 
by the policy, while in the latter case the undertaking is 
to make good any and all loss resulting from defect or 
failure of the title. See also Back title letter. 
Trust insurance. A trust, the res of which consists in 
whole or in part of insurance policies.

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Unemployment insurance. Form of taxation collected 
from business to fund unemployment payments and 
benefits. 
War risk insurance. Insurance offered by the federal 
government to protect persons against wartime loss of 
vessels and property on the high seas, and death or 
injury while in the armed forces. Insurance covering 
damage caused by acts of war. War risk insurance 
refers to those contracts which were brought into being 
by the United States government during the first World 
War to replace ordinary life and accident insurance 
which was no longer available to those in the hazardous 
occupation of military service. See also National service 
life insurance, above. 
Worker's compensation insurance. Type of protection 
purchased by employers to cover payments to employees 
who are injured in accidents arising out of and in the 
course of their employment; governed by statutes in all 
jurisdictions. See also Employer's liability insurance, 
above. 
Other Insurance Terms 
Aviation clause. Insurance clause limiting the liability 
of the insurer in case of death or injury is connected in a 
specified degree with aviation. 
Blanket policy. Policy covering more than one type of 
property in one location, or one or more types of proper
ty at more than one location. 
Claims made policy. Under this type policy the insured 
is indemnified for claims made during the policy period 
regardless of when the acts giving rise to those claims 
occur. Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 
C.A.Pa., 676 F.2d 56, 59. Also called "discovery" policy. 
Compare Occurrence policy, below. 
Comprehensive coverage. A simple and convenient form 
of indemnity now commonly available in contracts of 
automobile insurance. It includes not only the conven
tional coverages against loss caused by fire, theft, wind, 
water, or malicious mischief, but is generally designed to 
protect against all damage to the insured vehicle except 
collision or upset. 
Concurrent insurance. That which to any extent insures 
the same interest against the same casualty, at the same 
time, as the primary insurance, on such terms that the 
insurers would bear proportionately the loss happening 
within the provisions of both policies. 
Contract of insurance. See Contract of insurance. 
Discovery policy. See Claims made policy, above. 
Double insurance. See Double. 
Excess insurance. See Excess insurance, above. 
General and special insurance. In marine insurance, a 
general insurance is effected when the perils insured 
against are such as the law would imply from the nature 
of the contract considered in itself and supposing none 
to be specified in the policy. In the case of special 
INSURANCE 
insurance, further perils (in addition to implied perils) 
are expressed in the policy. 
Insurance adjuster. One undertaking to ascertain and 
report the actual loss to the subject-matter of insurance 
due to the peril insured against. The adjuster also 
settles claims against the insurer. Such adjuster may 
be employed either by the insurer or the insured. See 
Adjuster. 
Insurance agent. Person authorized to represent insurer 
in dealing with third parties in matters relating to 
insurance. Travelers Indem. Co. v. National Indem. Co., 
C.A.Minn., 292 F.2d 214, 219. An agent employed by an 
insurance company to solicit insurance business. 
Agents of insurance companies are called "general 
agents" when clothed with the general oversight of the 
companies' business in a state or large section of coun
try, and "local agents" when their functions are limited 
and confined to some particular locality. See also Insur
ance broker, below. 
Insurance binder. A memorandum of the insurance 
coverage agreement. It extends temporary protection 
pending issuance of the formal policy, while the insurer 
is investigating the risks and setting appropriate premi
um rates. Blackburn v. Crum & Forster, C.A.Tex., 611 
F.2d 102, 103. 
Insurance broker. One who acts as middleman between 
insured and company, and who solicits insurance from 
public under no employment from any special company 
and places order of insurance with company selected by 
insurer or, in absence of any selection, with company 
selected by such broker. Broker is agent for insured 
though at same time for some purposes he may be agent 
for insurer, and his acts and representations within 
scope of his authority as such agent are binding on 
insured. An "insurance agent" is tied to his company, 
whereas an "insurance broker" is an independent mid
dleman not tied to a particular company. Osborn v. 
Ozlin, Va., 310 U.S. 53, 60 S.Ct. 758, 761, 84 L.Ed. 1074. 
Insurance commissioner. A public officer in most states, 
whose duty is to supervise the business of insurance as 
conducted in the state by foreign and domestic compa
nies, for the protection and benefit of policy-holders, and 
especially to issue licenses, approve rates, make periodi
cal examinations into the condition of such companies, 
and receive, file, and publish periodical statements of 
their business as furnished by them. 
Insurance company. A corporation or association whose 
business is to make contracts of insurance. They are 
generally either mutual companies or stock companies. 
A "mutual" insurance company is one whose fund for 
the payment of losses consists not of capital subscribed 
or furnished by outside parties, but of premiums mutu
ally contributed by the parties insured, or in other 
words, one in which all persons insured become mem
bers of the association and contribute either cash or 
assessable premium notes, or both, to a common fund, 
out of which each is entitled to indemnity in case of loss. 
A "stock" company is one organized according to the 
usual form of business corporations, having a capital

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stock divided into shares, which, with current income 
and accumulated surplus, constitutes the fund for the 
payment of losses, policy-holders paying fixed premiums 
and not being members of the association unless they 
also happen to be stockholders. See also Joi nt-stock 
insurance company. 
Insurance contract. See Policy of insurance. 
Insurance policy. See Policy of insurance. 
Insurance pool. Combining together of several insurers 
to share premiums and losses so as to spread risks. 
Insurance premium. The consideration paid by insured 
to insurer for insurance protection. Alyea-Nichols Co. 
v. U. S., D.C.Ill., 12 F.2d 998, 1005. See Premium. 
Insurance rating. Process by which the premium for a 
policy is set after considering the risks involved. 
Insurance trust. An agreement between insured and 
trustee, whereby proceeds of policy are paid directly to 
trustee for investment and distribution to designated 
beneficiaries in manner and at such time as insured has 
directed in trust agreement. See also Trust. 
Insuring clause. Provision in insurance policy or bond 
which recites the agreement of the insurer to protect the 
insured against some form of loss or damage. 
Interinsurance. Insurance system whereby several indi
viduals, partnerships, or corporations, through common 
attorney in fact, underwrite one another's risks against 
loss under agreement that underwriters act separately 
and severally. Hoopeston Canning Co. v. Cullen, 318 
U.S. 313, 63 S.Ct. 602, 604, 87 L.Ed. 777. It is distin
guishable from all other forms of insurance, in that 
every insured is interinsurer, and every insurer is in
sured. 
Loss. See Loss. 
Mutual insurance company. See that term. 
Occurrence policy. This type policy provides for indem
nity, regardless of when claim is made or reported, if act 
giving rise to the claim occurred during policy period. 
Yazoo County, Miss. v. International Surplus Lines Inc. 
Co., D.C.Miss., 616 F.Supp. 153, 154. Compare Claims 
made policy, above. 
Over-insurance. Insurance effected upon property, ei
ther in one or several companies, to an amount which, 
separately or in the aggregate, exceeds the actual value 
of the property. See Excess insurance, above. 
Policy of insurance. See that title. 
Reinsurance. Insurance of an insurer; a contract by 
which an insurer procures a third person (usually anoth
er insurance company) to insure it against loss or liabili
ty, or a portion of such, by reason of the original 
insurance. 
Standard policy. A form of insurance contract which is 
required, or recommended, to be issued in a particular 
state. Such is regulated by various state statutes and 
administrative officials. 
808 
Umbrella policy. A form of insurance protection against 
losses in excess of the amount covered by other liability 
insurance policies. Type of supplemental or excess lia
bility policy that provides coverage above basic or nor
mal limits of liability. 
Under-insurance. Insurance coverage for less than the 
value of the property. Under such policy, coverage for 
loss or damage to property will be reduced by percentage 
of under-insurance. 
Underwriter. Party (insurer) who assumes a risk in 
return for the payment of a premium. See Insurer; 
Underwriter. 
Insure. To make sure or secure, to guarantee, as, to 
insure safety to any one. To engage to indemnify a 
person against pecuniary loss from specified perils or 
possible liability. To provide insurance. See also Un
derwrite. 
Insured. The person who obtains or is otherwise covered 
by insurance on his health, life, or property. The "in
sured" in a policy is not limited to the insured named in 
the policy, but applies to anyone who is insured under 
the policy. Midwest Contractors Equipment Co. v. Bitu
minous Cas. Corp., 11 2 Ill.App.2d 134, 251 N.E.2d 349, 
352. The owner of a policy of insurance. Detrick v. 
Aetna Cas. & Sur. Co., Iowa, 158 N.W.2d 99, 104. 
Insurer. The underwriter or insurance company with 
whom a contract of insurance is made. The one who 
assumes risk or underwrites a policy, or the underwriter 
or company with whom contract of insurance is made. 
National Securities, Inc. v. Johnson, 14 Ariz.App. 31, 480 
P.2d 368, 370. See also Underwriter. 
Insurgent. One who participates in an insurrection; 
one who opposes the execution of law by force of arms, 
or who rises in revolt against the constituted authori
ties. An enemy. 
Insurrection. A rebellion, or rising of citizens or sub
jects in resistance to their government. Insurrection 
consists in any combined resistance to the lawful author
ity of the state, with intent to cause the denial thereof, 
when the same is manifested, or intended to be mani
fested, by acts of violence. It is a federal crime to incite, 
assist, or engage in a rebellion or insurrection against 
the United States. 18 U.S.C.A. § 2383. See also Internal 
security acts. 
Intakes. In old English law, temporary inclosures made 
by customary tenants of a manor under a special custom 
authorizing them to inclose part of the waste until one 
or more crops have been raised on it. 
In tali casu editum et provisum lin teylay keys(y)uw 
ed;)t;)m et pr;)vliyz;)m/. See In casu proviso. 
Intangible asset. Property that is a "right" such as a 
patent, copyright, trademark, etc., or one which is lack
ing physical existence, such as goodwill. A nonphysical, 
noncurrent asset which exists only in connection with 
something else, such as the goodwill of a business. An 
intangible asset generally has a life longer than one

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809 
year, and is amortized over the period benefited, not to 
exceed forty years. See Amortization; Intangible property. 
Intangible drilling costs. Costs incurred incident to 
and necessary for the drilling and preparation of oil or 
gas wells for production that have no salvage value. 
Under I.R.C. § 263, such costs may be deducted in the 
year paid rather than capitalized and depreciated. 
Intangible property. As used chiefly in the law of 
taxation, this term means such property as has no 
intrinsic and marketable value, but is merely the repre
sentative or evidence of value, such as certificates of 
stock, bonds, promissory notes, copyrights, and franchis
es. See Intangible asset. Compare Tangible property. 
Intangibles. Property that is a "right" such as a patent, 
copyright, trademark, etc., or one which is lacking physi
cal existence; such as goodwill. See Amor tization; Gen
eral intangibles; Intangible asset. 
Intangibles tax. In certain states such tax is imposed 
on every resident for right to exercise following privi
leges: (a) Signing, executing and issuing intangibles; (b) 
selling, assigning, transferring, renewing, removing, con
signing, mailing, shipping, trading in and enforcing in
tangibles; (c) receiving income, increase, issues and prof
its of intangibles; (d) transmitting intangibles by will or 
gift or under state laws of descent; (e) having intangi
bles separately classified for taxes. 
Intangible value. Nonphysical value of such assets as 
patents, copyrights, goodwill. 
Integer lintajar/. Lat. Whole; untouched. Res integra 
lriyz intagral means a question which is new and unde
cided. 
Integral. Term in ordinary usage means part or constit
uent component necessary or essential to complete the 
whole. Matczak v. Secretary of Health, Ed. and Wel
fare, D.C.N.Y., 299 F.Supp. 409, 413. 
Integrated agreement. See Integrated contract; Integrat
ed writing. 
Integrated bar. The act of organizing the bar of a state 
into an association, membership in which is a condition 
precedent to the right to practice law. Integration is 
generally accomplished by enactment of a statute con
ferring authority upon the highest court of the state to 
integrate the bar, or by rule of court in the exercise of 
its inherent power. Integration of Bar Case, 244 Wis. 8, 
11 N.W.2d 604. 
A "unified bar" or an "integrated bar" is qualitatively 
different from a "voluntary bar"; membership in a 
unified or integrated bar is compulsory, whereas mem
bership in a voluntary bar is voluntary, and in effect, 
one is not at liberty to resign from a unified bar, for, by 
so doing, one loses the privilege to practice law. Peti
tion of Chapman, 128 N.H. 24, 509 A.2d 753, 756. 
Integrated contract. Contract which contains within 
its four corners the entire agreement of the parties and 
parol evidence tending to contradict, amend, etc., is 
inadmissible; the parties having made the contract the 
final expression of their agreement. 
INTEND 
An agreement is integrated where the parties thereto 
adopt the writing or writings as the final and complete 
expression of the agreement and an "integration" is the 
writing or writings so adopted. Wilson v. Viking Corpo
ration, 134 Pa.Super. 153, 3 A.2d 180, 183. See Integrat
ed writing. 
Partial integration. Such exists where only a certain 
part of transaction is embodied in writing and the re
mainder is left in parol. Schwartz v. Shapiro, 299 
C.A.2d 238, 40 Cal.Rptr. 189, 197. 
Integrated property settlements. Contract commonly 
made on separation or divorce of spouses wherein the 
parties intend that the contract become part of the court 
order, decree or judgment. 
Integrated writing. The writing or writings adopted by 
the parties to an agreement as the final and complete 
expression of the agreement. Restatement, Second, 
Contracts, § 209. Pettett v. Cooper, 62 Ohio App. 377, 
24 N.E.2d 299, 302. See also Integrated contract. 
Integration. The act or process of making whole or 
entire. Bringing together different groups (as races) as 
equals. 
Horizontal in tegration. Combination of two or more 
businesses of the same type such as manufacturers of 
the same type of products. Such combinations may 
violate antitrust laws under certain conditions. See also 
Merger. 
Vertical in tegration. Combination of two or more busi
nesses on different levels of operation such as manufac
turing, wholesaling and retailing the same product. See 
also Merger. 
Integrity. As used in statutes prescribing the qualifica
tions of public officers, trustees, etc., this term means 
soundness or moral principle and character, as shown by 
one person dealing with others in the making and per
formance of contracts, and fidelity and honesty in the 
discharge of trusts; it is synonymous with "probity," 
"honesty," and "uprightness." 
Intelligibility. In pleading, the statement of matters of 
fact directly (excluding the necessity of inference or 
argument to arrive at the meaning) and in such appro
priate terms, so arranged, as to be comprehensible by a 
person of common or ordinary understanding, "Each 
averment of a pleading shall be simple, concise, and 
direct." Fed.R. Civil P. 8(e). 
Intemperance. A lack of moderation. Habitual intem
perance is that degree of intemperance from the use of 
intoxicating liquor which disqualifies the person a great 
portion of the time from properly attending to business, 
or which would reasonably inflict a course of great 
mental anguish upon an innocent party. Habitual or 
excessive use of liquor. See Intoxication. 
Intend. To design, resolve, propose. To plan for and 
expect a certain result. To apply a rule of law in the 
nature of presumption; to discern and follow the proba
bilities of like cases. See also Intent.

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INTENDANT 
Intendant. One who has the charge, management, or 
direction of some office, department, or public business. 
Used in the constitutional and statutory law of some 
European governments to designate a principal officer of 
state corresponding to the cabinet or secretaries of the 
various departments of the United States government, 
as, "intendant of marine," "intendant of finance." 
Intended to be recorded. Phrase used in conveyances, 
when reciting some other conveyance which has not yet 
been recorded, but which forms a link in the chain of 
title. 
Intended use doctrine. In determining "intended use" 
for which products must be reasonably safe, manufactur
er has duty to take into consideration the environment 
in which product will be used. Larsen v. General Mo
tors Corp., C.A.Minn., 391 F.2d 495, 501. In product 
liability cases, two factors are considered: the market
ing scheme of the maker, and the foreseeability of the 
risks which are inherent in the product when used for 
the purposes intended. Helene Curtis Industries, Inc. v. 
Pruitt, C.A.Tex., 385 F.2d 84 1. 
Intendente /intend€mtey/. In Spanish law, the immedi
ate agent of the minister of finance, or the chief and 
principal director of the different branches of the reve
nue, appointed in the various departments in each of the 
provinces into which the Spanish monarchy is divided. 
Intendment of law. The true meaning, the correct 
understanding or intention of the law. A presumption 
or inference made by the courts. 
Common intendment. The natural and usual sense; the 
common meaning or understanding; the plain meaning 
of any writing as apparent on its face without straining 
or distorting the construction. 
Intent. Design, resolve, or determination with which 
person acts. Witters v. United States, 70 U.S.App.D.C. 
316, 106 F.2d 837, 840. A state of mind in which a 
person seeks to accomplish a given result through a 
course of action. As used in intentional torts, "intent" 
is desire to bring about result that will invade interests 
of another. Wager v. Pro, C.A., 603 F.2d 1005, 10lD, 195 
U.S.App.D.C. 423. A mental attitude which can seldom 
be proved by direct evidence, but must ordinarily be 
proved by circumstances from which it may be inferred. 
State v. Gantt, 26 N.C.App. 554, 217 S.E.2d 3, 5. A state 
of mind existing at the time a person commits an offense 
and may be shown by act, circumstances and inferences 
deducible therefrom. State v. Evans, 219 Kan. 515, 548 
P.2d 772, 777. 
The word "intent" is used throughout the Restate
ment of Torts, 2nd, to denote that the actor desires to 
cause consequences of his act, or that he believes that 
the consequences are substantially certain to result from 
it. Sec. 8A. See Intentional tort. 
Intent and motive should not be confused. Motive is 
what prompts a person to act, or fail to act. Intent 
refers only to the state of mind with which the act is 
done or omitted. 
810 
See also Afore thought; Constructive intent; Intention; 
Larcenous intent; Legislative intent; Malice afor ethought; 
Manifestation of intention; Mens rea; Predatory intent; 
Premeditation; Presumed intent; Scienter; Specific intent; 
Willful. 
Common intent. The natural sense given to words. 
Criminal intent. See Criminal; Knowingly; Mens rea 
Premeditation. 
General intent. In criminal law, the intent to do that 
which the law prohibits. It is not necessary for the 
prosecution to prove that the defendant intended the 
precise harm or the precise result which eventuated. 
Specific intent. In criminal law, the intent to accom
plish the precise act which the law prohibits; e.g. as
sault with intent to rape. 
Transferred intent. In tort law, if A, intending to strike 
B, misses B and hits C instead, the intent to strike B is 
transferred and supplies the necessary intent for the 
tort against C. See also Transferred intent doctrine. 
Intentio /intEmsh(iy)ow/. Lat. In the civil law, the 
formal complaint or claim of a plaintiff before the 
prretor. 
In old English law, a count or declaration in a real 
action (narratio). 
Intentio creca mala /intensh(iy)ow siyk::l mrel::l/. A blind 
or obscure meaning is bad or ineffectual. Said of a 
testator's intention. 
Intentio inservire debet legibus, non leges intentioni 
/intensh(iy)ow ins::lrvayriy deb::lt liyj::lb::ls, non liyjiyz 
intenshiyownay/. The intention [of a party] ought to be 
subservient to [or in accordance with] the laws, not the 
laws to the intention. 
Intentio mea imponit nomen operi meo /intensh(iy)ow 
miY::l impown::lt nowm::ln op::lray miyow /. My intent 
gives a name to my act. 
Intention. Determination to act in a certain way or to 
do a certain thing. Meaning; will; purpose; design. 
"Intention," when used with reference to the construc
tion of wills and other documents, means the sense and 
meaning of it, as gathered from the words used therein. 
When used with reference to civil and criminal responsi
bility, a person who contemplates any result, as not 
unlikely to follow from a deliberate act of his own, may 
be said to intend that result, whether he desires it or 
not. See also Four corners rule; Intent; Intentionally. 
Intentional. See Intent; Intention. 
Intentionally. To do something purposely, and not acci
dentally. State v. Marshall, 15 Ohio App.2d 187, 239 
N.E.2d 755, 758. Person acts "intentionally" if he de
sires to cause consequences of his act or he believes 
consequences are substantially certain to result. State 
v. Bright, 78 App. 239, 337 S.E.2d 87, 89. For purposes 
of criminal statute means willfully or purposely, and not 
accidentally or involuntarily. State v. Schott, 222 Neb. 
456, 384 N.W.2d 620, 624. See also Intent; Intention.

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811 
Intentional tort. A tort in which the actor is expressly 
or impliedly judged to have possessed intent or purpose 
to injure. 
Intentione lintenshiyowniy/. In old English law, a writ 
that lay against him who entered into lands after the 
death of a tenant in dower, or for life, etc., and held out 
to him in reversion or remainder. 
Intent to kill. An element in certain aggravated as
saults and batteries which requires the prosecution to 
prove the intent to kill in addition to the other elements 
of the assault and battery. See Aggravated assault; Mal
ice aforeth ought; Premeditation. 
Inter lint�r. Lat. Among; between. 
Inter alia lint�r eyl(i)y�/"reliy�/. Among other things. 
A term anciently used in pleading, especially in reciting 
statutes, where the whole statute was not set forth at 
length. Inter alia enactatum fuit, among other things it 
was enacted. 
Inter alias causas acquisitionis, magna, celebris, et 
famosa est causa donationis lint�r eyl(i)y�s koz�s 
rekw�zishiyown�s, mregn�, sebbr�s, et f�mows� est koz� 
d�neyshiyown�sl. Among other methods of acquiring 
property, a great, much-used, and celebrated method is 
that of gift. 
Inter alios lint�r eyliy�sl. Between other persons; be
tween those who are strangers to a matter in question. 
Inter alios res gestas aliis non posse prrejudicium 
facere srepe constitutum est lint�r eyliy�s riyz jest�s 
reliy�s non posiy pr�juwd�krend�m fres�riy siypiy 
konst�tyuwt�m est!. It has been often settled that 
things which took place between other parties cannot 
prejudice. 
Inter apices juris lint�r eyp�siyz jur�sl. Among the 
subtleties of the law. See Apex juris. 
Inter arma silent leges lint�r arm� saybnt liyjiyz/. In 
time of war the laws are silent. It applies as between 
the state and its external enemies; and also in cases of 
civil disturbance where extrajudicial force may super
sede the ordinary process of law. 
Inter brachia lint�r breykiy�/. Between her arms. 
Inter creteros lint�r set�rowsl. Among others; in a 
general clause; not by name (nominatim). A term ap
plied in the civil law to clauses of disinheritance in a 
will. 
Intercalare /int�rk�leriy/. Lat. In the civil law, to 
introduce or insert among or between others; to intro
duce a day or month into the calendar; to intercalate. 
Intercedere /int�rsiyd�riy/. Lat. In the civil law, to 
become bound for another's debt. 
Intercept. As used in federal wiretapping statute, 
means the aural acquisition of the contents of any wire 
or oral communication through the use of any electron
ic, mechanical, or other device. 18 U.S.C.A. § 2510. See 
Eavesdropping; Interception; Wiretapping. 
INTERDICTION 
Interception. Within Federal Communications Act, pro
hibiting interception of communication by wire or radio, 
indicates taking or seizure by the way or before arrival 
at destined place, and does not ordinarily connote ob
taining of what is to be sent before, or at the moment, it 
leaves the possession of the proposed sender, or after, or 
at the moment, it comes into possession of intended 
receiver. Communications Act of 1934, § 605, 47 U.S. 
C.A. § 605; Goldman v. United States, N.Y., 316 U.S. 
129, 62 S.Ct. 993, 995, 86 L.Ed. 1322. See Eavesdropping; 
Wiretapping. 
Interchangeably. By way of exchange or interchange. 
This term properly denotes the method of signing deeds, 
leases, contracts, etc., executed in duplicate, where each 
party signs the copy which he delivers to the other. 
Inter conjuges lint�r konj�giyz/. Between husband and 
wife. 
Intercourse. Communication; literally, a running or 
passing between persons or places; commerce; sexual 
relations. 
Interdict lint�rdikt/. A prohibitory decree. 
Ecclesiastical law. An ecclesiastical censure, by which 
divine services (i.e. sacraments) are prohibited to be 
administered either to particular persons or in particu
lar places. 
Roman and civil law. A decree of the prretor by means 
of which, in certain cases determined by the edict, he 
himself directly commanded what should be done or 
omitted, particularly in causes involving the right of 
possession or a quasi possession. In the modern civil 
law, interdicts are regarded precisely the same as ac
tions, though they give rise to a summary proceeding. 
Interdicts are either prohibitory, restorative, or exhi
bitory; the first being a prohibition, the second a decree 
for restoring possession lost by force, the third a decree 
for the exhibiting of accounts, etc. 
An interdict was distinguished from an "action" (ac
tio), properly so called, by the circumstance that the 
prretor himself decided in the first instance (principali
ter), on the application of the plaintiff, without previous
ly appointing a judex, by issuing a decree commanding 
what should be done, or left undone. It might be 
adopted as a remedy in various cases where a regular 
action could not be maintained, and hence interdicts 
were at one time more extensively used than were the 
actiones themselves. Afterwards, however, they fell into 
disuse, and in the time of Justinian were generally 
dispensed with. 
Interdiction /int�rdiksh�n/. French law. Every person 
who, on account of insanity, has become incapable of 
controlling his own interests, can be put under the 
control of a guardian, who shall administer his affairs 
with the same effect as he might himself. Such a 
person is said to be "interdit," and his status is described 
as "interdiction." 
Civil law. A judicial decree, by which a person is 
deprived of the exercise of his civil rights.

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INTERDICTION 
French-Canadian law. A proceeding instituted for the 
purpose of obtaining a curator of the person and proper
ty, and includes the calling of a family council and a 
petition to the court or its prothonotary, followed by a 
hearing. 
International law. An "interdiction of commercial in
tercourse" between two countries is a governmental 
prohibition of commercial intercourse, intended to bring 
about an entire cessation for the time being of all trade 
whatever. The Edward, 1 Wheat. 272, 4 L.Ed. 86. 
Interdum evenit ut exceptio qure prima facie justa 
videtur, tamen inique noceat /int�rd�m �viyn�t �t 
�ksepsh(iy)ow kwiy praym� feyshiy(iy) j�st� v�diyt�r, 
trem�n �naykwiy n6siy�t/. It sometimes happens that a 
plea which seems prima facie just, nevertheless is injuri
ous and unequal. 
Interesse /int�resiy/. Lat. Interest. The interest of 
money; also an interest in lands. 
Interesse termini. An interest in a term. That species 
of interest or property which a lessee for years acquires 
in the lands demised to him, before he has actually 
become possessed of those lands; as distinguished from 
that property or interest vested in him by the demise, 
and also reduced into possession by an actual entry upon 
the lands and the assumption of ownership therein, and 
which is then termed an "estate for years." 
Pro interesse suo. For his own interest; according to, or 
to the extent of, his individual interest. Used (in prac
tice) to describe the intervention of a party who comes 
into a suit for the purpose of protecting interests of his 
own which may be involved in the dispute between the 
principal parties or which may be affected by the settle
ment of their contention. 
Interest. The most general term that can be employed 
to denote a right, claim, title, or legal share in some
thing. In its application to real estate or things real, it 
is frequently used in connection with the terms "estate," 
"right," and "title." More particularly it means a right 
to have the advantage accruing from anything; any 
right in the nature of property, but less than title. 
The word "interest" is used throughout the Restate
ment of · Torts, Second, to denote the object of any 
human desire. Sec. 1. 
The word "interest" is used in the Restatement of 
Property both generically to include varying aggregates 
of rights, privileges, powers and immunities and distrib
utively to mean any one of them. Sec. 5. 
"Interest" which may disqualify a judge from hearing 
a suit is a personal proprietary or pecuniary interest or 
one affecting individual rights of the judge, and liability, 
gain or relief to judge must turn on outcome of suit. 
Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91, 94. 
See also Add on interest; Adverse interest; Against 
interest; Beneficial interest; Communi ty of interest; Com
pelling state interest; Compound interest; Conflict of inter
est; Contingent interest in personal property; Coupons; 
Equitable interest; Executory interests; Future interests; 
Identity of interests; Insurable interest; Leasehold interest; 
812 
Legal interest; Lessee's interest; Lessor's interest; New 
York interest; Ownership; Pecuniary interest; Possessory 
interest; Public interest; Security interest; Senior interest; 
Terminable interest; Usury; Vested interest. 
Absolute interest. Person has absolute interest in prop
erty when such is so completely vested in individual that 
no contingency can deprive him of it without his con
sent. So, too, he is the owner of such absolute interest 
who must necessarily sustain the loss if the property is 
destroyed. See also Fee simple; Title. 
Easement. An easement is an "interest" in land and 
involves the title. Allen v. Smith, Mo.App., 375 S.W.2d 
874, 878. See Easement. 
For use of money. Interest is the compensation allowed 
by law or fixed by the parties for the use or forbearance 
of borrowed money. Jones v. Kansas Gas & Electric Co., 
222 Kan. 390, 565 P.2d 597, 604. Basic cost of borrow
ing money or buying on installment contract. Pay
ments a borrower pays a lender for the use of the 
money. Cost of using credit or funds of another. A 
corporation pays interest on its bonds to the bondhold
ers. 
Accrued interest. Interest earned but not yet paid. See 
also Accruing interest. 
Accumulated interest. Interest on bonds and other 
debts which is due or overdue but not yet paid. 
Boston interest. See Boston interest. 
Compound interest. Interest upon interest; i.e. interest 
paid on principal plus accrued interest. Exists where 
accrued interest is added to the principal sum, and the 
whole treated as a new principal for the calculation of 
the interest for the next period. Interest added to 
principal as interest becomes due and thereafter made 
to bear interest. Wieland v. Loon, 79 S.D. 608, 11 6 
N.W.2d 391, 393. 
Conventional interest. Interest at the rate agreed upon 
and fixed by the parties themselves, as distinguished 
from that which the law would prescribe in the absence 
of an explicit agreement. 
Excessive interest. See Usury. 
Ex-interest. In the language of stock exchanges, a bond 
or other interest-bearing security is said to be sold 
"ex-interest" when the seller reserves to himself the 
interest already accrued and payable (if any) or the 
interest accruing up to the next interest day. 
Gross interest. The total interest paid by the borrower 
which includes administrative costs and expenses to 
lender. 
Interest rate. See Interest rate. 
Interest upon interest. See Compound interest, above. 
Legal interest. See Legal interest. 
New York interest. Computation of interest on the 
exact number of days in a month and not on a thirty 
day month. See also Boston interest. 
Nominal interest. The interest stated on the security 
and not the rate based on the price of the security.

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813 
Ordinary interest. Interest computed entirely on the 
principal with no interest computed on the interest 
past due. 
Simple interest. That which is paid for the principal or 
sum lent, at a certain rate or allowance, made by law 
or agreement of parties. Interest calculated on princi
pal where interest earned during periods before matu
rity of the loan is neither added to the principal nor 
paid to the lender. That paid on the principal lent as 
distinguished from compound interest which is interest 
paid on unpaid interest. B. F. Saul Co. v. West End 
Park North, Inc., 250 Md. 707, 246 A.2d 591, 598. 
Difference between "simple interest" and "compound 
interest" is that "simple interest" does not merge with 
principal and thus does not become part of base on 
which future interest is calculated. Stewart v. Isbell, 
155 Mich.App. 65, 399 N.W.2d 440, 446. 
Imputed interest. In taxation, taxable income resulting 
from the purchase at a bargain of assets for less than 
their fair value; such occurs when one is so placed as to 
take advantage of an opportunity not available to oth
ers. An estimated charge for interest for use of capital 
though no cash payment is provided. See also Cost 
(Imputed cost J. 
For certain long-term sales of property, the IRS has 
the authority to convert some of the gain from the sale 
into interest income if the contract does not provide for 
a minimum rate of interest to be paid by the purchaser. 
The application of this procedure has the effect of forc
ing the seller to recognize less long-term capital gain 
and more ordinary income (i.e., interest income). I.R.C. 
§ 483. See also Cost (Imputed cost). 
Insurance. See Insurable interest. 
Intervention. Word "interest" as used in prOVISIon of 
Federal Rule of Civil Procedure that on timely applica
tion anyone shall be permitted to intervene in an action 
when representation of his "interest" by existing parties 
is or may be inadequate and he is or may be bound by 
judgment in action means specific legal or equitable 
interest in case. Toles v. U. S., C.A.N.M., 371 F.2d 784, 
785, 786. See Fed.R. Civil P. 24. 
Interest sufficient to support intervention as of right 
must be significant, must be direct rather than contin
gent, and must be based on a right which belongs to the 
proposed intervenor rather than to an existing party to 
the suit. Vazman, S. A. v. Fidelity Intern. Bank., D.C. 
N.Y., 418 F.Supp. 1084, 1085. An "interest" in the 
subject of an action so as to render the holder thereof a 
necessary party or a proper intervenor does not include 
a mere, consequential, remote or conjectural possibility 
of being in some manner affected by the result of the 
action but must be such a direct claim upon the subject 
matter of the action that the holder will either gain or 
lose by direct operation of the judgment to be rendered. 
Bunting v. McDonnell Aircraft Corp., Mo., 522 S.W.2d 
161, 169. 
Penalty. Interest as a penalty is exaction for past-due 
obligations; it is compensation for delay in payment (e.g. 
interest impose by IRS on overdue taxes). Wayne Tp. in 
INTEREST RATE 
Passaic County v. Ricmin, Inc., 124 N.J.S uper. 509, 308 
A.2d 27, 30. See also Penalty. 
Interested party. For purposes of administrative hear
ing, are those who have a legally recognized private 
interest, and not simply a possible pecuniary benefit. 
First Nat. Bank v. Oklahoma Sav. and Loan Bd., OkL, 
569 P.2d 993, 996. 
Interest equalization tax. Tax imposed on each acqui
sition by a U.S. person of stock of a foreign issuer, or of 
a debt obligation of a foreign obligor if such obligation 
has a period remaining to maturity of a year or more. 
I.R.C. § 491 1(a). This tax expired in 1974. 
Interest-free loans. Bona fide loans that carry no inter
est (or a below-market rate). If made in a nonbusiness 
setting, the imputed interest element is treated as a gift 
from the lender to the borrower. If made by a corpora
tion to a shareholder, a constructive dividend could 
result. In either event, the lender may have interest 
income to recognize. I.R.C. § 7872. 
Interest rate. The percentage of an amount of money 
which is paid for its use for a specified time. Commonly 
expressed as an annual percentage rate (APR). Federal 
and state laws regulate interest rate amounts and disclo
sures on consumer loans. See Annual percentage rate; 
Coupon rate of interest; Truth-in-Lending Act; Usury. 
Lock rate. An interest rate established at the time of 
the mortgage application and guaranteed for a specified 
period, usually until closing. A rate can be "locked" for 
varying periods-30, 60 or 90 days, in most cases. 
Nominal interest rate. The periodic rate of interest that 
is stated in a loan agreement or security. Frequently 
the effective interest rate is greater than the nominal 
rate because of factors like the frequency of compound
ing and the deduction of interest in advance. 
Prime rate. The most favorable interest rates charged 
by a commercial bank on short-term loans to its best (i.e. 
most credit worthy) customers. 
Real interest rate. The inflation-adjusted rate charged 
for borrowing funds. 
Variable interest rate. A flexible rate of interest which 
increases or decreases according to current market 
rates. 
Interest reipublicre ne maleficia remaneant impunita 
/int�rest riyayp;)bl�siy niy m,H:}fis(h)(i)y:} r:}mreniy:}nt 
impy:}nayt:}/. It concerns the state that crimes remain 
not unpunished. 
Interest reipublicre ne sua quis male utatur /int:}rest 
riyayp;)bl:}siy niy s(y)uw� kwis mreliy y:}teyt�r/. It con
cerns the state that persons do not misuse their proper
ty. 
Interest reipublicre quod homines conserventur 
/int:}rest riyayp;)bl�siy kw6d h6m�niyz kons�rvent�r/. 
It concerns the state that [the lives of] men be preserved. 
Interest reipublicre res judicatas non rescindi 
/int�rest riyayp;)bl:}siy riyz juwd:}keyt:}s non r:}sinday/. 
It concerns the state that things adjudicated be not

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INTERFERE 
rescinded. It is matter of public concern that solemn 
adjudications of the courts should not be disturbed. 
Interest reipublicre suprema hominum testamenta 
rata haberi lintarest riyayp:iblasiy s(y)apriyma 
h6manam testamenta reyta habiray I. It concerns the 
state that men's last wills be held valid (or allowed to 
stand). 
Interest reipublicre ut carceres sint in tuto lintarest 
riyayp:iblasiy �t kitrsariyz sint in t(y)uwtow/. It con
cerns the state that prisons be safe places of confine
ment. 
Interest (imprimis) reipublicre ut pax in regno con
servetur, et qurecunque paci adversentur provide 
declinentur lintarest ampritymas riyayp:iblasiy �t preks 
in regnow konsarveytar et kwiyk:i1Jkwiy peysay 
redvarsentar pravitydiy deklanentar/. It especially con
cerns the state that peace be preserved in the kingdom, 
and that whatever things are against peace be prudently 
avoided. 
Interest reipublicre ut quilibet re sua bene utatur 
lintarest riyayp:iblasiy �t kwitylabat riy s(y)uwa biyniy 
yateytar I. It is the concern of the state that every one 
uses his property properly. 
Interest reipublicre ut sit finis litium lintarest 
riyayp:iblasiy �t sit fitynas litysh(iy)am/. It concerns the 
state that there be an end of lawsuits. It is for the 
general welfare that a period be put to litigation. 
Interfere. To check; hamper; hinder; infringe; en
croach; trespass; disturb; intervene; intermeddle; in
terpose. To enter into, or to take part in, the concerns 
of others. People ex reI. Benefit Ass'n of Railway Em
ployees v. Miner, 387 Ill. 393, 56 N.E.2d 353, 356. 
Interference. A Patent and Trademark Offi ce proceed
ing to determine priority of invention between two or 
more parties claiming patentably indistinct subject mat
ter. An interference may be between two or more 
patent applicants or one or more patentees and at least 
one patent applicant. It may be declared sua sponte by 
the Patent and Trademark Office or requested by a 
patent applicant. An interference is decided by the 
Board of Patent Appeals. 35 V.S.C.A. § 135. See also 
Infringement. 
Interference with business relationship. The ele
ments of this tort are the existence of a business rela
tionship under which the plaintiff has legal rights, an 
intentional and unjustified interference with that rela
tionship by defendant, and damage to plaintiff as result 
of breach of that business relationship. Gerber v. Keyes 
Co., Fla.App. 3 Dist., 443 So.2d 199, 200. 
Interference with contractual relationship. This tort 
has four elements: existence of valid contract, defen
dant's knowledge of that contract, defendant's intention
al procuring of breach of that contract and damages. 
Wegman v. Dairylea Cooperative, Inc., 50 A.D.2d 108, 
376 N.Y.S.2d 728, 736. 
Interim lintaram/. Lat. In the meantime; meanwhile; 
temporary; between. An assignee ad interim is one 
814 
appointed between the time of bankruptcy and appoint
ment of the regular assignee. See also Interlo cutory. 
Interim committitur lintaram kamitatar/. "In the 
meantime, let him be committed." An order of court (or 
the docket-entry noting it) by which a prisoner is com
mitted to prison and directed to be kept there until some 
further action can be taken, or until the time arrives for 
the execution of his sentence. 
Interim curator lintaram kyareytarl"kyuratar/. In old 
English law, a person appointed by justices of the peace 
to take care of the property of a felon convict, until the 
appointment by the crown of an administrator or admin
istrators for the same purpose. 
Interim financing. A short-term loan secured to cover 
interim costs associated with building construction, cor
porate takeovers, or the like, until permanent financing 
(e.g., mortgage, bonds) is obtained. Also called a bridge 
loan. 
Interim officer. One appointed to fill the office during a 
temporary vacancy, or during an interval caused by the 
absence or incapacity of the regular incumbent. 
Interim order. One made in the meantime, and until 
something is done. 
Interim receipt. A receipt for money paid by way of 
premium for a contract of insurance for which applica
tion is made. If the risk is re jected, the money is 
refunded, less the pro rata premium. 
Interim statements. In accounting, statements issued 
for periods less than the regular, annual accounting 
period. Most corporations are required to issue interim 
statements on a quarterly basis. 
Interinsurance exchange lintarinshurans akscheynj/. 
Reciprocal exchange (q. v.). 
Interior Department. Executive level department of 
federal government overseeing agencies concerned with 
Indian affairs, mining, fish and wildlife, geologic re
search, land management, national parks and monu
ments, territories, flood control, conservation, public 
works, and related areas. See also Bureau of Land 
Management. 
Interlaqueare lintarlrekwiyeriy/. In old English prac
tice, to link together, or interchangeably. Writs were 
called "interlaqueata" where several were issued 
against several parties residing in different counties, 
each party being summoned by a separate writ to war
rant the tenant, together with the other warrantors. 
Interlineation. The act of writing between the lines of 
an instrument; also what is written between lines. See 
also Interpolate. 
Interlining. The practice whereby a carrier, whose cer
tificated routes do not reach the shipment destination, 
transfers the shipment to another carrier for delivery. 
Gilbertville Trucking Co. v. V. S., Mass., 371 V.S. 11 5, 83 
S.Ct. 217, 221, 9 L.Ed.2d 177. See also Joint through rate. 
Interlocking confession. Confessions which are sub
stantially the same and consistent concerning the major

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815 
elements of the crime involved. They are admissible in 
joint trials. State v. Chaffee, 285 S.C. 21, 328 S.E.2d 
464, 469. 
Interlocking directors. Persons who serve simulta
neously on the boards of directors of two or more corpo
rations that have dealings with each other. Federal 
antitrust law prohibits interlocking directors of compet
ing businesses (15 U.S.C.A. § 19); such directors may 
also create problems involving fiduciary duties. 
Interlocutory lintarI6k(y)atariy I. Provisional; interim; 
temporary; not finaL Something intervening between 
the commencement and the end of a suit which decides 
some point or matter, but is not a final decision of the 
whole controversy. An interlocutory order or decree is 
one which does not finally determine a cause of action 
but only decides some intervening matter pertaining to 
the cause, and which requires further steps to be taken 
in order to enable the court to adjudicate the cause on 
the merits. In re Merle's Inc., C.A.Wash., 481 F.2d 
1016, 1018. 
As to interlocutory Costs; Decree; Injunction; Judg
ment; Order; and Sentence. see those titles. See also 
Intermedia te order. 
Interlocutory appeal. An appeal of a matter which is 
not determinable of the controversy, but which is neces
sary for a suitable adjudication of the merits. See also 
Final decision rule. 
Interlocutory Appeals Act. Federal Act which grants 
discretion to the courts of appeals to review any interloc
utory order whatever in a civil case if the trial (i.e. 
federal district court) judge, in making the order, has 
stated in writing that the order involves a controlling 
question of law as to which there is substantial ground 
for difference of opinion and that an immediate appeal 
from the order may materially advance the ultimate 
termination of litigation. 28 U.S.C.A. § 1292. 
Interlocutory decision. Any decision prior to a final 
decision. See Interlocutory. Compare Final decision or 
judgment. 
Interloper. Persons who interfere or intermeddle into 
business to which they have no right. Persons who 
enter a country or place to trade without license. One 
who meddles in affairs which are none of his business 
and for which he has no responsibility; an intruder; an 
intermeddler. Encroachment on rights of others. 
Intermarriage. See Miscegenation. 
Intermeddle. To interfere wrongly with property or the 
conduct of business affairs officiously or without right or 
title. See also Interfere; Interloper. 
Not a technical legal term, but sometimes used with 
reference to the acts of an executor de son tort or a 
negotiorum gestor in the civil law. 
Intermediary. An arbitrator or mediator. A broker; 
one who is employed to negotiate a matter between two 
parties, and who for that purpose may be agent of both; 
e.g. insurance broker. See also Finder. 
INTERNAL AUDIT 
Intermediary bank. Any bank to which an item is 
transferred in the course of collection except the deposi
tary or payor bank. U.C.C. § 4--105(c). 
Intermediate. Intervening; interposed during the 
progress of a suit, proceeding, business, etc., or between 
its beginning and end. See Interlocutory; Intervention. 
Intermediate account. In probate law, an account of 
an executor, administrator, or guardian filed subsequent 
to his first or initial account and before his final ac
count. An account filed with the court for the purpose 
of disclosing the acts of the person accounting and the 
state or condition of the fund in his hands, and not made 
the subject of a final judicial settlement. 
Intermediate courts. Those courts which have general 
jurisdiction, either trial or appellate or both, but which 
are below the court of last resort in the jurisdiction. 
Intermediate order. An order made between the com
mencement of the action and its final determination, 
incident to and during its progress, which does not 
determine the cause but only some intervening matter 
relating thereto; one that is not directly appealable. 
See Interlocutory. 
Intermediation. A financial term which refers to the 
placement of funds with a bank or other financial insti
tution, also known as an intermediary, with the objec
tive of investing such funds in stocks, bonds, etc. 
In terminis terminantibus lin t;)rmanas 
t�rmamentabas/. In terms of determination; exactly in 
point. In express or determinate terms. 
Intermittent easement. See Easement. 
Intermittent stream. A stream, the flow of which in 
the state of nature is interrupted either from time to 
time during the year or at various places along its 
course, or both. U. S. v. Fallbrook Public Utility Dist., 
D.C.CaL, 109 F.Supp. 28, 78. 
Intermixture of goods. Confusion of goods; the confus
ing or commingling together of goods belonging to differ
ent owners in such a way that the property of no 
particular owner can be separately identified or extract
ed from the mass. See also Confusion of goods. 
Intern. To restrict or confine a person or group of 
persons, particularly in time of war (e.g. enemy aliens). 
An advanced student or recent graduate in a profession
al field; e.g. one trained in a profession allied to medi
cine who undergoes a period of practical clinical experi
ence prior to practicing his profession. Regents of Univ
ersity of Mich. v. Michigan Employment Relations Com
mission, 38 Mich.App. 55, 195 N.W.2d 875, 878. See also 
Internment. 
Internal. Relating to the interior; comprised within 
boundary lines; of interior concern or interest; domes
tic, as opposed to foreign. 
Internal act. That which transpires within a person or 
organization or government as contrasted with a hap
pening outside such. 
Internal audit. See Audit.

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INTERNAL AFFAIRS OF CORPORATION 
Internal affairs of corporation. In conflicts, the rights 
and liabilities of a corporation are determined by the 
local law of the state which has the most significant 
relationship to the occurrence and the parties. Restate
ment, Second, Conflicts, § 302(1). Such affairs are gen
erally left to courts of the state of incorporation. 
Internal commerce. See Commerce. 
Internal im ancing. Financing of business from funds 
generated from normal operations in contrast to financ
ing from borrowed funds or stock issues. 
Internal improvements. With reference to governmen
tal policy and constitutional provisions restricting taxa
tion or the contracting of public debts, this term means 
works of general public utility or advantage, designed to 
promote facility of intercommunication, trade, and com
merce, the transportation of persons and property, or 
the development of the natural resources of the state, 
such as railroads, public highways, turnpikes, and ca
nals, bridges, the improvement of rivers and harbors, 
systems of artificial irrigation, and the improvement of 
water powers; but it does not include the building and 
maintenance of state institutions. 
Internal police. A term sometimes applied to the police 
power, or power to enact laws in the interest of the 
public safety, health, and morality, which is inherent in 
the legislative authority of each state, is to be exercised 
with reference only to its domestic affairs and its own 
citizens, and is not surrendered to the federal govern
ment. See also Police power. 
Internal revenue. Governmental revenues from inter
nal sources by way of taxes as contrasted with revenues 
from customs and foreign sources. 
Internal Revenue Code (I.R.C.). That body of law 
which codifies all federal tax laws including income, 
estate, gift, excise, etc. taxes. Such laws comprise Title 
26 of the U.S. Code, and are implemented by the Inter
nal Revenue Service and through it by Treasury Regula
tions; Revenue Rulings, etc. Because of the extensive 
revisions to the tax statutes that occurred with the Tax 
Reform Act of 1986, Title 26 of the U.S. Code is now 
known as the Internal Revenue Code of 1986. 
Internal Revenue Service. The Internal Revenue Ser
vice (I.R.S.) is responsible for administering and enforc
ing the internal revenue laws, except those relating to 
alcohol, tobacco, firearms, explosives, and wagering. It 
is a part of the Department of the Treasury. Basic 
I.R.S. activities include providing taxpayer service and 
education; determination, assessment, and collection of 
internal revenue taxes; determination of pension plan 
qualification and exempt organization status; and prep
aration and issuance of rulings and regulations to inter
pret the provisions of the Internal Revenue Code. 
Internal security. That branch of law and government 
(e.g. CIA, FBI) dealing with measures to protect the 
country from subversive activities. 
Internal security acts. Federal Acts (Smith Act, 18 
U.S.C.A. §§ 2385, 2386; McCarran Act, 50 U.S.C.A. § 781 
et seq.) controlling and making illegal subversive activi-
816 
ties of communist organizations and other groups whose 
purpose is to overthrow or disrupt the government. 
Internal waters. Such as lie wholly within the body of 
the particular state or country. See also In land waters. 
International agreements. Treaties and other agree
ments of a contractual character between different coun
tries or organizations of states (foreign) creating legal 
rights and obligations between the parties. 
International commerce. See Commerce. 
International Court of Justice. Judicial arm of the 
United Nations. It has jurisdiction to give advisory 
opinions on matters of law and treaty construction when 
requested by the General Assembly, Security Council or 
any other international agency authorized by the Gener
al Assembly to petition for such opinion. It has jurisdic
tion, also, to settle legal disputes between nations when 
voluntarily submitted to it. Its judgments may be en
forced by the Security Council. Its jurisdiction and 
powers are defined by statute, to which all member 
states of the U.N. are parties. Judges of such court are 
elected by the General Assembly and Security Council of 
U.N. 
International jurisdiction. Power of a court or other 
organization to hear and determine matters between 
different countries or persons of different countries or 
foreign states. See International Court of Justice. 
International law. Those laws governing the legal rela
tions between nations. Rules and principles of general 
application dealing with the conduct of nations and of 
international organizations and with their relations in
ter se, as well as with some of their relations with 
persons, whether natural or juridical. Restatement For
eign Relations (Third) § 101. Body of consensual princi
ples which have evolved from customs and practices 
civilized nations utilize in regulating their relationships 
and such customs have great moral force. Zenith Radio 
Corp. v. Matsushita Elec. Indus. Co., Ltd., D.C.Pa., 494 
F.Supp. 11 61, 11 78. International customs and treaties 
are generally considered to be the two most important 
sources of international law. 
International Monetary Fund. Agency of United Na
tions established to stabilize international exchange and 
promote balanced international trade. See also World 
Bank. 
International Shoe Case. Due process requires that a 
foreign corporation be "present" within a state by a 
measure of minimal activity within the state for suits to 
be maintained against it in the state. International 
Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 
S.Ct. 154, 90 L.Ed. 95. See also McGee v. International 
Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; 
Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 
L.Ed.2d 1283. See Minimum contacts. 
International Trade Court. See Court of International 
Trade. 
Internment. The detainment or confinement of enemy 
aliens or persons suspected of disloyalty in specially

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817 
designated areas; e.g. Japanese during World War II. 
Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 
L.Ed. 1255. 
Internuncio /int�rn�ns(h)(i)yow /. A minister of a sec
ond order, charged with the affairs of the papal court in 
countries where that court has no nuncio. 
Internuncius /int�rn�ns(h)(i)y�s/. A messenger between 
two parties; a go-between. Applied to a broker, as the 
agent of both parties. 
Inter pares /int�r periyz/. Between peers; between 
those who stand on a level or equality, as respects 
diligence, opportunity, responsibility, etc. 
Inter partes /int�r partiyz/. Between parties. Instru
ments in which two persons unite, each making convey
ance to, or engagement with, the other, are called "pa
pers inter partes." 
Judgment inter partes. See Judgment in personam or 
inter partes. 
Interpellate /int�rpeleytrp�leyt/. To address with a 
question, especially when formal and public; originally 
used with respect to proceedings in the French legisla
ture. Used in reference to questions by the court to 
counsel during an argument. 
Interpellation /int�rp�leysh�n/. In the civil law, the 
act by which, in consequence of an agreement, the party 
bound declares that he will not be bound beyond a 
certain time. 
Interplea /int�rpliy/. A plea by which a person sued in 
respect to property disclaims any interest in it and 
demands that rival claimants shall litigate their titles 
between themselves and relieve him from responsibility. 
See Interpleader. 
A statutory proceeding, serving as a substitute for the 
action of replevin, by which a third person intervenes in 
an action of attachment, sets up his own title to the 
specific property attached, and seeks to recover the 
possession of it. 
Interpleader. An equitable proceeding to determine the 
rights of rival claimants to property held by a third 
person having no interest therein. Balish v. Farnham, 
92 Nev. 133, 546 P.2d 1297, 1299. When two or more 
persons claim the same thing (or fund) of a third, and 
he, laying no claim to it himself, is ignorant which of 
them has a right to it, and fears he may be prejudiced by 
their proceeding against him to recover it, he may join 
such claimants as defendants and require them to inter
plead their claims so that he may not be exposed to 
double or multiple liability. A defendant exposed to 
similar liability may obtain such interpleader by way of 
cross-claim or counterclaim. Interpleader in federal 
court is governed by the federal Interpleader Act, 28 
U.S.C.A. § 1335, and Fed.R. Civil P. 22. Similar statutes 
and court rules govern interpleader in state courts. 
Statutory interpleader. A federal statutory right (28 
U.S.C.A. § 1335) whereby disinterested stakeholder from 
whom several people claim same proceeds may require 
claimants to litigate matter among themselves without 
INTERPRETATION 
embroiling stakeholder. Glens Falls Ins. Co. v. Strom, 
D.C.Cal., 198 F.Supp. 450, 455. 
Interpol. International Criminal Police Organization; a 
coordinating group for international law enf orcement. 
Interpolate /int�rp�leyt/. To insert (additional or false) 
words in a complete instrument or document, thus alter
ing meaning of such. See also Interlineation. 
Interpolated terminal reserve. The method used in 
valuing insurance policies for gift and estate tax pur
poses when the policies are not paid-up at the time of 
their transfer. 
Interpolation /int;}rp�leysh�n/. The act of interpolat
ing; the words interpolated. See also Interlineation; In
terpretation. 
Interposition /int�rp�zish�n/. The doctrine that a 
state, in the exercise of its sovereignty, may reject a 
mandate of the federal government deemed to be uncon
stitutional or to exceed the powers delegated to the 
federal government. The doctrine denies constitutional 
obligation of states to respect Supreme Court decisions 
with which they do not agree. Bush v. Orleans Parish 
School Bd., D.C.La., 188 F.Supp. 916. The concept is 
based on the 10th Amendment of the Constitution of the 
United States reserving to the states powers not delegat
ed to the United States. Historically, the doctrine ema
nated from Chisholm v. Georgia, 2 U.S. (Dall.) 419, 
wherein the state of Georgia, when sued in the Supreme 
Court by a private citizen of another state, entered a 
remonstrance and declined to recognize the court's juris
diction. The U.S. Supreme Court rejected this doctrine 
of interposition in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 
1401, 3 L.Ed.2d 5. 
Interpret. To construe; to seek out the meaning of 
language; to translate orally from one tongue to anoth
er. 
Interpretare et concordare leges legibus, est optimus 
interpretandi modus /int;}rpr�teriy et kOlJk�rderiy 
liyjiyz liyj�b�s, est 6pt�m�s int;}rpr�trenday m6wd�s/. To 
interpret, and [in such a way as] to harmonize laws with 
laws, is the best mode of interpretation. 
Interpretatio chartarum benigne facienda est, ut res 
magis valeat quam pereat /int;}rpr�teysh(iy)ow 
karter�m b�nigniy feys(h)iyend� est �t riyz meyj�s 
vreliy�t kwrem pehriy�t/. The interpretation of deeds is 
to be liberal, that the thing may rather have effect than 
fail. 
Interpretatio fienda est ut res magis valeat quam 
pereat /int;}rpr�teysh(iy)ow fayend� est �t riyz meyj�s 
vreliy�t kwrem pehriy�t/. Such an interpretation is to 
be adopted that the thing may rather stand than fall. 
Interpretation. The art or process of discovering and 
ascertaining the meaning of a statute, will, contract, or 
other written document. The discovery and representa
tion of the true meaning of any signs used to convey 
ideas. 
It is said to be either "legal," which rests on the same 
authority as the law itself, or "doctrinal," which rests

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INTERPRETATION 
upon its intrinsic reasonableness. Legal interpretation 
may be either "authentic," when it is expressly provided 
by the legislator, or "usual," when it is derived from 
unwritten practice. Doctrinal interpretation may turn 
on the meaning of words and sentences, when it is called 
"grammatical," or on the intention of the legislator, 
when it is described as "logical." When logical interpre
tation stretches the words of a statute to cover its 
obvious meaning, it is called "extensive;" when, on the 
other hand, it avoids giving full meaning to the words, 
in order not to go beyond the intention of the legislator, 
it is called "restrictive." 
As to strict and liberal interpretation, see Construction. 
See also Broad interpretation; Last antecedent rule. 
Construction distinguished. In the strict usage of this 
term, "construction" is a term of wider scope than 
"interpretation;" for, while the latter is concerned only 
with ascertaining the sense and meaning of the subject
matter, the former may also be directed to explaining 
the legal effects and consequences of the instrument in 
question. Hence interpretation precedes construction, 
but stops at the written text. Interpretation and con
struction of written instruments are not the same. A 
rule of construction is one which either governs the 
effect of an ascertained intention, or points out what the 
court should do in the absence of express or implied 
intention, while a rule of interpretation is one which 
governs the ascertainment of the meaning of the maker 
of the instrument. In re Union Trust Co., 89 Misc. 69, 
151 N.Y.S. 246, 249. 
These two terms are however, commonly used inter
changeably. 
Close or strict interpretation (interpretatio restricta) is 
adopted if just reasons, connected with the formation 
and character of the text, induce us to take the words in 
their narrowest meaning. This species of interpretation 
has generally been called "literal." 
Extensive interpretation (interpretatio ex tens i va, 
called, also, "liberal interpretation") adopts a more com
prehensive signification of the word. 
Extravagant interpretation (interpretatio excedens) is 
that which substitutes a meaning evidently beyond the 
true one. It is therefore not genuine interpretation. 
Free or unrestricted interpretation (interpretatio soluta) 
proceeds simply on the general principles of interpreta
tion in good faith, not bound by any specific or superior 
principle. 
Limited or restricted inter pretation (interpretatio limi
tata) is when we are influenced by other principles than 
the strictly hermeneutic ones. 
Predestined interpretation (interpretatio predestinata) 
takes place if the interpreter, laboring under a strong 
bias of mind, makes the text subservient to his precon
ceived views or desires. This includes artful interpreta
tion (interpretatio vater), by which the interpreter seeks 
to give a meaning to the text other than the one he 
knows to have been intended. 
In the civil law, authentic interpretation of laws is 
that given by the legislator himself, which is obligatory 
818 
on the courts. Customary interpretation (also called 
"usual") is that which arises from successive or concur
rent decisions of the court on the same subject-matter, 
having regard to the spirit of the law, jurisprudence, 
usages, and equity; as distinguished from "authentic" 
interpretation, which is that given by the legislator 
himself. 
Interpretation clause. A section of a statute which 
defines the meaning of certain words occurring frequent
ly in the other sections. 
Interpretatio talis in ambiguis semper fienda est ut 
evitetur inconveniens et absurdum /int�rpr;}teysh(iy)
ow trel;}s in rembigyuw;}s semp;}r fayend;} est �t ev;}tiyt;}r 
ink;}nviyn(i)yenz et ;}bs;)rd;}m/. In cases of ambiguity, 
such an interpretation should always be made that what 
is inconvenient and absurd may be avoided. 
Interpreter. A person sworn at a trial to interpret the 
evidence of a foreigner or a deaf person to the court. 
Interpretative rule. Rule which is promUlgated by ad
ministrative agency to interpret, clarify or explain stat
utory regulations under which agency operates. Young 
v. South Carolina Dept. of Highways and Public Transp., 
287 S.C. 108, 336 S.E.2d 879, 88 1. 
Inter quatuor parietes /int;}r kw6tuw;}r p;}ray;}diyz/. 
Between four walls. 
Inter regalia /int;}r r;}geyl(i)y;}/. In English law, among 
the things belonging to the sovereign. Among these are 
rights of salmon fishing, mines of gold and silver, for
ests, forfeitures, casualties of superiority, etc., which are 
called "regalia minora," and may be conveyed to a 
subject. The regalia majora include the several branch
es of the royal prerogative, which are inseparable from 
the person of the sovereign. 
Interregnum /int;}regn;}m/. An interval between 
reigns. The period which elapses between the death of a 
sovereign and the election of another. The vacancy 
which occurs when there is no government. 
Interrogation. In criminal law, the process of questions 
propounded by police to person arrested or suspected to 
seek solution of crime. Such person is entitled to be 
informed of his rights, including right to have counsel 
present, and the consequences of his answers. If the 
police fail or neglect to give these warnings, the ques
tions and answers are not admissible in evidence at the 
trial or hearing of the arrested person. Miranda v. 
State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 
694. As conceptualized in the Miranda decision of the 
United States Supreme Court, constitutionally protected 
interrogation must reflect a measure of compulsion 
above and beyond that inherent in custody itself. Rhode 
Island v. Innis, R.I., 446 U.S. 291, 100 S.Ct. 1682, 1688, 
64 L.Ed.2d 297. See also Confession; Custodial interroga
tion; Exclusionary Rule; Investigatory interrogation; Mi
randa Rule. 
Custodial interrogation. Questioning initiated by law 
enforcement officers after a person has been taken into 
custody or otherwise deprived of his freedom of action in 
any significant way. See also Miranda Rule.

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819 
Interrogatoire linterogatwar/. In French law, an act 
which contains the interrogatories made by the judge to 
the person accused, on the facts which are the object of 
the accusation, and the answers of the accused. 
Interrogatories lint::lrog::lt(o)riyz/. A set or series of 
written questions drawn up for the purpose of being 
propounded to a party, witness, or other person having 
information of interest in the case. 
A pretrial discovery device consisting of written ques
tions about the case submitted by one party to the other 
party or witness. The answers to the interrogatories 
are usually given under oath, i.e., the person answering 
the questions signs a sworn statement that the answers 
are true. Fed.R. Civil P. 33. 
The court may submit to the jury, together with 
appropriate forms for a general verdict, written inter
rogatories upon one or more issues of fact the decision of 
which is necessary to a verdict. See Fed.R. Civil P. 49. 
See also Deposition; Discovery; Special interrogatories. 
In terrorem lin tehror::lm/. Lit. In fright or alarm or 
terror. In terror or warning; by way of threat. Ap
plied to legacies given upon condition that the recipient 
shall not dispute the validity or the dispositions of the 
will; such a condition being usually regarded as a mere 
threat. See In terrorem clause. 
In terrorem clause. A provision in a document such as 
a lease or will designed to frighten a beneficiary or 
lessee into doing or not doing something; e.g. clause in a 
will providing for revocation of a bequest or devise if the 
legatee or devisee contests the will. A condition "in 
terrorem" is a provision in a will which threatens bene
ficiaries with forfeiture of their legacies and bequests 
should they contest validity or dispositions of will. Tay
lor v. Rapp, 217 Ga. 654, 124 S.E.2d 271, 272. Such 
provisions are unenforceable in many states. 
In terrorem populi lin tehror::lm popY::llay I. Lat. To 
the terror of the people. A technical phrase formerly 
necessary in indictments for riots. 
Interruptio lint::lr�psh(iy)ow/. Lat. Interruption. A 
term used both in the civil and common law of prescrip.
tion. 
Interruptio multiplex non tollit prrescriptionem sem
el obtentam lint::lr�psh(iy)ow m�lt::lpleks non tol::lt 
pr::lskripshiyown::lm sem::ll ::Ibtent::lm/. Frequent inter
ruption does not take away a prescription once secured. 
Interruption. A break in continuity or uniformity. The 
occurrence of some act or fact, during the period of 
prescription, which is sufficient to arrest the running of 
the statute of limitations. It is said to be either "natu
ral" or "civil," the former being caused by the act of the 
party; the latter by the legal effect or operation of some 
fact or circumstance. Interruption of the possession is 
where the right is not enjoyed or exercised continuously; 
interruption of the right is where the person having or 
claiming the right ceases the exercise of it in such a 
manner as to show that he does not claim to be entitled 
to exercise it. 
INTERSTATE COMMERCE COMMISSION 
Inter rusticos lint::lr r:ist::lkows/. Among the illiterate 
or unlearned. 
Intersection. As applied to a street or highway means 
the space occupied by two streets at the point where 
they cross each other. Space common to both streets or 
highways, formed by continuing the curb lines. West
ern Union Tel. Co. v. Dickson, 27 Tenn.App. 752, 173 
S.W.2d 714, 718. 
Point of intersection of two roads is the point where 
their middle lines intersect. But the term may also 
mean the point which each of two approaching vehicles 
will reach at the same moment. "Intersection" may 
also apply where street or highway runs into but with
out crossing another; e.g. a "T" intersection. 
Inter se or inter sese lint::lr siy(siy)I . Lat. Among or 
between themselves; used to distinguish rights or duties 
between two or more parties from their rights or duties 
to others. 
Interspousal. Between husband and wife. 
Interspousal immunity. See Husband- wife tort actions. 
Interstate. Between two or more states; between places 
or persons in different states; concerning or affecting 
two or more states politically or territorially. Compare 
Intrastate commerce. 
Interstate agreements. See Interstate compact. 
Interstate and foreign commerce. Commerce between 
a point in one State and a point in another State, 
between points in the same State through another State 
or through a foreign country, between points in a for
eign country or countries through the United States, 
and commerce between a point in the United States and 
a point in a foreign country or in a Territory or posses
sion of the United States, but only insofar as such 
commerce takes place in the United States. The term 
"United States" means all the States and the District of 
Columbia. 49 U.S.C.A. § 10102. 
Interstate commerce. Traffic, intercourse, commercial 
trading, or the transportation of persons or property 
between or among the several states of the Union, or 
from or between points in one state and points in 
another state; commerce between two states, or between 
places lying in different states. Gibbons v. Ogden, 22 
U.S. (9 Wheat.) 1, 6 L.Ed. 23; Wabash, etc. R. Co. v. 
Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244. It compre
hends all the component parts of commercial inter
course between different states. Furst v. Brewster, 282 
U.S. 493, 51 S.Ct. 295, 296, 75 L.Ed. 478. See Balancing 
of interests. 
Interstate Commerce Act. The act of congress of Feb
ruary 4, 1887 (49 U.S.C.A. § 10101 et seq.), designed to 
regulate commerce between the states, and particularly 
the transportation of persons and property, by carriers, 
between interstate points. 
Interstate Commerce Commission. The Interstate 
Commerce Commission regUlates interstate surface 
transportation, including trains, trucks, buses, water 
carriers, freight forwarders, transportation brokers, and

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INTERSTATE COMMERCE COMMISSION 
a coal slurry pipeline. The regulatory laws vary de
pending on the type of transportation; however, they 
generally involve certification of carriers seeking to pro
vide transportation for the public, rates, adequacy of 
service, purchases, and mergers. The Commission as
sures that the carriers it regulates will provide the 
public with rates and services that are fair and reason
able. 49 U.S.C.A. § 10301 et seq. 
Interstate compact. A voluntary agreement between 
two or more states which is designed to meet common 
problems of the parties concerned. Compacts on major 
matters must receive the consent of the U.S. Congress as 
specified in Article I, Section 10 of the Constitution. 
They usually relate to such things as conservation, 
boundary problems, education, port control, flood con
trol, water rights, and penal matters. 
Interstate extradition. The reclamation and surrender, 
according to due legal proceedings, of a person who, 
having committed a crime in one of the states of the 
Union, has fled into another state to evade justice or 
escape prosecution. Art. IV, § 2, U.S.Const.; 18 U.S. 
C.A. § 3181 et seq. See Extradition; Interstate rendition. 
Interstate Land Sales Full Disclosure Act. Federal 
Act (15 U.S.C.A. § 1701 et seq.), the purpose of which is 
to provide purchasers and lessees of undeveloped land 
with the information they need in order to make an 
informed decision with regard to the land being sold or 
leased. As indicated by its title, this is a "disclosure" 
act. 
Interstate law. That branch of law which affords rules 
and principles for the determination of controversies 
between citizens of different states in respect to mutual 
rights or obligations, in so far as the same are affected 
by the diversity of their citizenship or by diversity in the 
laws or institutions of the several states. 
Interstate rendition. Right of one state to demand 
from asylum state surrender of a fugitive from justice 
from the demanding state when the fugitive is found in 
the asylum state. Art. IV, § 2, U.S.C onst. Application 
of Dugger, 17 Ariz.App. 297, 497 P.2d 413. Nearly all 
states have adopted the Uniform Criminal Extradition 
Act. See Extradition; Interstate extradition. 
Interval ownership. Type of ownership of second (i.e. 
vacation) home whereby the property is owned for only 
an interval (e.g. two weeks or a month) of the year. 
Each owner receives a deed covering his interval period. 
See also Timesharing. 
Intervening act. Such act of third person in order to 
break chain of causation and obviate liability for origi
nal breach of duty must be a superseding cause and one 
which original wrongdoer was not bound to anticipate as 
the natural or ordinary result of his acts. Littell v. 
Argus Production Co., C.C.A.Kan., 78 F.2d 955, 957. See 
also Intervening cause; Superseding cause. 
Intervening agency. To render an original wrong a 
remote cause, an "intervening agency" must be indepen
dent of such wrong, adequate to produce the injury, so 
interrupting the natural sequence of events as to pro
duce a result different from what would have been 
820 
produced, and one that could not have been reasonably 
expected from the original wrong. An independent "in
tervening agency" which will protect the original wrong
doer must be the efficient cause of the injury of which 
complaint is made, and not a negligent act or omission 
of such agency concurring with or succeeding the origi
nal negligence permitted by the original wrongdoer to 
continue and which in the natural course of events 
results in such injury. In short, the result prevented by 
the intervening agency must be the injury complained 
of, and not the requital for that injury. Swanson v. 
Slagal, 212 Ind. 394, 8 N.E.2d 993, 1000. See also 
Intervening cause. 
Intervening cause. In tort law, as will relieve of liabili
ty for an injury, is an independent cause which inter
venes between the original wrongful act or omission and 
the injury, turns aside the natural sequence of events, 
and produces a result which would not otherwise have 
followed and which could not have been reasonably 
anticipated. Kopriva v. Union Pacific R. Co., 592 P.2d 
711, 713. An act of an independent agency which de
stroys the causal connection between the negligent act 
of the defendant and the wrongful injury; the indepen
dent act being the immediate cause, in which case 
damages are not recoverable because the original wrong
ful act is not the proximate cause. An "intervening 
efficient cause" is a new and independent force which 
breaks the causal connection between the original 
wrong and injury, and itself becomes direct and immedi
ate cause of injury. Phillabaum v. Lake Erie & W. R. 
Co., 315 Ill. 131, 145 N.E. 806, 808. 
In criminal law, a cause which comes between an 
antecedent and a consequence; it may be either inde
pendent or dependent, but in either case it is sufficient 
to negate criminal responsibility. 
See also Intervening act; Intervening agency; Supersed
ing cause. 
Intervening damages. See Damages. 
Intervening force. One which actively operates in pro
ducing harm to another after defendant's act or omis
sion has been committed. Intervening force will not 
break a causal connection if that force was itself proba-
. ble or foreseeable by the original wrongdoer. Kerns v. 
Engelke, 54 Ill.App.3d 323, 12 Ill.Dec. 270, 369 N.E.2d 
1284, 1293. See Intervening cause. 
Intervenor. An intervenor is a person who voluntarily 
interposes in an action or other proceeding with the 
leave of the court. See Intervention. 
Intervention. The procedure by which a third person, 
not originally a party to the suit, but claiming an 
interest in the subject matter, comes into the case, in 
order to protect his right or interpose his claim. The 
grounds and procedure are usually defined by various 
state statutes or Rules of Civil Procedure; e.g., Fed.R. 
Civil P. 24; 28 U.S.C.A. § 2403. Intervention may exist 
either as a matter of right (Rule 24(a)) or at the discre
tion of the court (Rule 24(b)). 
In English ecclesiastical law, the proceeding of a third 
person, who, not being originally a party to the suit or 
proceeding, but claiming an interest in the subject-mat-

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821 
ter in dispute, in order the better to protect such inter
est, i nterposes his claim. Stillwell Hotel Co. v. 
Anderson, 16 Cal.App.2d 636, 61 P.2d 71, 72. 
Inter virum· et uxorem lint�r vayr�m et �ks6r�m/. 
Between husband and wife. 
Inter vivos lint�r vayvows/. Between the living; from 
one living person to another. Where property passes by 
conveyance, the transaction is said to be inter vivos, to 
distinguish it from a case of succession or devise. So an 
ordinary gift from one person to another is called a "gift 
inter vivos," to distinguish it from a gift made in con
templation of death (mortis causa) or a testamentary 
gift. 
Inter vivos gift. Gift made when donor is living and 
provides that gift take effect while donor is living as 
contrasted with testamentary gift which is to take effect 
on death of donor (testator). 
Inter vivos transfer. A transfer of property during the 
life of the owner. To be distinguished from testamenta
ry transfers where the property passes at death. See e.g. 
Inter vivos gift. 
Inter vivos trust. Trust created during lifetime of set
tlor and to become effective in his lifetime as contrasted 
with a testamentary trust which takes effect at death of 
settlor or testator. See also Trust. 
Intestabilis lintesteyb�bs/. Lat. A witness incompe
tent to testify. 
Intestable. One who has not testamentary capacity; 
e.g., an infant, lunatic, or person civilly dead. 
Intestacy lintest�siy/. The state or condition of dying 
without having made a valid will, or without having 
disposed by will of a part of his property. 
In testamentis plenius testatoris intentionem scruta
mur lin test�ment�s pliyniy�s test�t6r�s inten
shiy6wn�m skruwteym�r/. In wills we more especially 
seek out the intention of the testator. 
In testamentis plenius voluntates testantium inter
pretantur lin test�ment�s p1iyniy�s vol�nteytiyz tes
trensh(iy )�m int�rpr�trent�r I. In wills the intention of 
testators is more especially regarded. 
In testamentis ratio tacita non debet considerari, sed 
verba solum spectari debent; adeo per divination
em mentis a verbis recedere durum est lin 
test�m{mt�s reysh(iy)ow tres�t� non deb�t k�nsid�reray, 
sed v;)rb� s6wl�m spekteray deb�nt, rediyow p�r div�ney
shiy6wn�m m{mt�s ey v;)rb�s r�siyd�riy d(y)ur�m est!. 
In wills an unexpressed meaning ought not to be con
sidered, but the words alone ought to be looked to; so 
hard is it to recede from the words by guessing at the 
intention. 
Intestate. To die without a will. A person is said to die 
intestate when he dies without making a will, or dies 
without leaving anything to testify what his wishes were 
with respect to the disposal of his property after his 
death. Under such circumstances, state law prescribes 
who will receive the decedent's property. The laws of 
INTIMIDATION 
intestate succession generally favor the surviving 
spouse, children, and grandchildren and then move to 
parents and grandparents and to brothers and sisters. 
The word is also often used to signify the person 
himself. Thus, in speaking of the property of a person 
who died intestate, it is common to say "the intestate's 
property;" i.e., the property of the person dying in an 
intestate condition. Compare Testate. 
Intestate laws. State statutes which provide and pre
scribe the devolution of estates of persons who die with
out disposing of their estates by will. See Descent. 
Intestate succession. A succession is called "intestate" 
when the deceased has left no will or when his will has 
been revoked or annulled as irregular. In such case the 
property of the deceased will be disposed of under the 
laws of descent and distribution. See Intestate. 
Intestato lintesteytow/. Lat. In the civil law, intestate; 
without a will. 
Intestatus lintesteyt�s/. Lat. In the civil and old Eng
lish law, an intestate; one who dies without a will. 
Intestatus decedit, qui aut omnino testamentum non 
fecit; aut non jure fecit; aut id quod fecerat ruptum 
irritumve factum est; aut nemo ex eo hreres exstitit 
lintesteyt�s d�siyd�t kway ot omnaynow test�ment�m 
non fiys�t, ot non juriy fiys�t, ot id kwod fiys�r�t r;)pt�m 
ir�t;)mviy frekt�m est, ot niymow eks iyow hiriyz 
ekst�t�t/. A person dies intestate who either has made 
no testament at all or has made one not legally valid; or 
if the testament he has made be revoked, or made 
useless; or if no heir has come forward. 
In testimonium lin test�m6wn(i)y�m/. Lat. In witness; 
in evidence whereof. 
In the course of employment. The phrase "in the 
course of' employment, as used in workers' compensa
tion acts, relates to time, place and circumstances under 
which accident occurred, and means injury happened 
while worker was at work in his or her employer's 
service. Peter Kiewitt Sons' Co. v. Industrial Commis
sion, 88 Ariz. 164, 354 P.2d 28, 30. See also Arising out of 
and in the course of own employment; Course of employ
ment. 
Intimacy lint�m�siy/. As generally applied to persons, 
it is understood to mean a proper, friendly relation of 
the parties, but it is frequently used to convey the idea 
of an improper relation. 
Intimate. Close in friendship or acquaintance, familiar, 
near, confidential. Atkins Corporation v. Tourny, 6 
Cal.2d 206, 57 P.2d 480, 484. To communicate indirect
ly; to hint or suggest. 
Intimation. In the civil law, a notification to a party 
that some step in a legal proceeding is asked or will be 
taken. Particularly, a notice given by the party taking 
an appeal, to the other party, that the court above will 
hear the appeal. 
Intimidation. Unlawful coercion; extortion; duress; 
putting in fear.

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INTIMIDATION 
To take, or attempt to take, "by intimidation" means 
willfully to take, or attempt to take, by putting in fear of 
bodily harm. Such fear must arise from the willful 
conduct of the accused, rather than from some mere 
temperamental timidity of the victim; however, the fear 
of the victim need not be so great as to result in terror, 
panic, or hysteria. 
Intitle. An old form of "entitle. " 
Into. A preposition signifying to the inside of; within. 
It expresses entrance, or a passage from the outside of a 
thing to its interior, and follows verbs expressing mo
tion. It has been held equivalent to, or synonymous 
with, "at," "inside of," and "to," and has been distin
guished from the words "from" and "through." 
Intol and uttol lint;;ll rend �t;;ll/. Toll or custom paid for 
things imported and exported, or bought in and sold out. 
In totidem verbis lin towdayd;;lm v�rb;;ls/. In so many 
words; in precisely the same words; word for word. 
In toto lin t6wtow I. In the whole; wholly; completely; 
as the award is void in toto. 
In toto et pars continetur lin t6wtow et parz 
kont;;lniyt;;lr/. In the whole the part also is contained. 
Intoxicated. Affected by an intoxicant, under the influ
ence of an intoxicating liquor. Taylor v. Joyce, 4 Cal. 
App.2d 612, 41 P.2d 967, 968. See Intoxication. 
Intoxicating liquor. Any liquor used as a beverage, and 
which, when so used in sufficient quantities, ordinarily 
or commonly produces entire or partial intoxication. 
Any liquor intended for use as a beverage or capable of 
being so used, which contains alcohol, either obtained by 
fermentation or by the additional process of distillation, 
in such proportion that it will produce intoxication 
when imbibed in such quantities as may practically be 
drunk. Frisvold v. Leahy, 15 Cal.App.2d 752, 60 P.2d 
151, 153. See also Alcoholic liquors. 
Intoxication. Term comprehends situation where, by 
reason of taking intoxicants, an individual does not have 
the normal use of his physical or mental faculties, thus 
rendering him incapable of acting in the manner in 
which an ordinarily prudent and cautious man, in full 
possession of his faculties, using reasonable care, would 
act under like conditions. Hendy v. Geary, 105 R.1. 419, 
252 A.2d 435, 441. 
A disturbance of mental or physical capacities result
ing from the introduction of substances into the body. 
Model Penal Code, § 2.08. 
The fact that a person charged with a crime was in an 
intoxicated condition at the time the alleged crime was 
committed is a defense only if such condition was invol
untarily produced and rendered such person substantial
ly incapable of knowing or understanding the wrongful
ness of his conduct and of conforming his conduct to the 
requirements of law. An act committed while in a state 
of voluntary intoxication is not less criminal by reason 
thereof, but when a particular intent or other state of 
mind is a necessary element to constitute a particular 
822 
crime, the fact of intoxication may be taken into consid
eration in determining such intent or state of mind. 
Under most state statutes dealing with driving while 
intoxicated, "intoxication" includes such by alcohol or 
by drug or by both. See Driving while intoxicated. 
Confirmed habits of intoxication caused by voluntary 
and excessive use of liquor is a ground for divorce under 
many state divorce statutes. 
See also Habitual drunkenness or intoxication; Intemper
ance. 
Public intoxication. Public intoxication is being on a 
highway or street or in a public place or public building 
while under the influence of intoxicating liquor, narcot
ics or other drug to the degree that one may endanger 
himself or other persons or property, or annoy persons 
in his vicinity. 
Voluntary intoxication. The voluntary introduction of 
any substances into the body which the defendant knows 
or should know are likely to have intoxicating effects. 
The Model Penal Code (§ 2.08) uses the term "self-in
duced intoxication" to refer to this idea. Evidence of 
voluntary or self-induced intoxication can be admitted 
in some circumstances but not others. 
Intoxilyzer. Breath analysis. A device used to measure 
the concentration of alcohol in the blood of motorists 
suspected of driving while under the influence of intoxi
cating liquor. California v. Trombetta, 467 U.S. 479, 
481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413. See Breatha
lyzer test; Intoximeter. 
Intoximeter. A trade name for scientific breath testing 
device that operates on assumption that concentration 
of blood alcohol bears fixed relation to concentration of 
alcohol in the deep lung, or alveolar air. Also common
ly called breathalyzer test. See Breathalyzer test. 
Intra I intr;;l I . Lat. In; near; within. "Infra" or "inter" 
has taken the place of "intra" in many of the more 
modern Latin phrases. 
Intra anni spatium lintr;;l renay speysh(iY);;Im/. Within 
the space of a year. 
In traditionibus scriptorum, non quod dictum est, 
sed quod gestum est, inspicitur lin tr;;ldishiyown;;lb;;ls 
skript6r;;lm, non kwod dikt;;lm est, sed kwod jest;;lm est, 
;;Inspis;;lt;;lr/. In the delivery of writings, not what is 
said, but what is done, is looked to. 
Intra fidem lintr;;l fayd;;lm/. Within belief; credible. 
In trajectu/in tr;;ljekt(y)uw/. In the passage over; on 
the voyage over. 
Intraliminal lintr;;llim;;ln;;ll/. In mining law, the term 
"intraliminal rights" denotes the right to mine, take, 
and possess all such bodies or deposits of ore as lie 
within the four planes formed by the vertical extension 
downward of the boundary lines of the claim; as distin
guished from "extraliminal," or more commonly "extra
lateral," rights. 
Intra luctus tempus lintr;;l l�kt;;ls temp;;ls/. Within the 
time of mourning.

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823 
Intra mrenia lintr;) miyn(i)y;)I . Within the walls (of a 
house). A term applied to domestic or menial servants. 
Intramural. Within the walls. Existing within. The 
confines of an institution or governmental body. The 
powers of a municipal corporation are "intramural" and 
"extramural"; the one being the powers exercised with
in the corporate limits, and the other being those exer
cised without. 
In transitu lin trrenz;)t(y)uw I. In transit; on the way or 
passage; while passing from one person or place to 
another. In the course of transportation. 
Intra parietes lintr;) p;)ray;}tiyz/. Between walls; 
among friends; out of court; without litigation. 
Intra prresidia lintr;} pr;}sid(i)y;}I . Within the defenses. 
See Infra prresidia. 
Intra quatuor maria lintr;} kwotuw;}r mreriy;}I . Within 
the four seas. 
Intrastate commerce. Commerce within a state, as 
opposed to commerce between states (i.e. interstate). 
See also Balancing of interests; Commerce; compare In
terstate commerce. 
Intra vires lintr;} vayriyz/. An act is said to be intra 
vires ("within the power") of a person or corporation 
when it is within the scope of his or its powers or 
authority. It is the opposite of ultra vires (q. v.). 
Intrinsecum servitium I;)ntrinz;)k;}m s;)rvish(iy);}m/. 
Lat. In old English law, common and ordinary duties 
with the lord's court. 
Intrinsic. Internal; inherent. Pertaining to the essen
tial nature of a thing. 
Intrinsic evidence. Evidence brought out by the exami
nation of the very witness testifying. Compare Circum
stantial evidence; Extrinsic evidence. 
Intrinsic fraud. That fraud which occurs within frame
work of actual conduct of trial and pertains to and 
affects determination of issues presented therein, and it 
may be accomplished by perjury, or by use of false or 
forged instruments, or by concealment or misrepresenta
tion of evidence. Auerbach v. Samuels, 10 Utah 2d 152, 
349 P.2d 11 12, 111 4. Fraud is "intrinsic fraud" where 
judgment is founded on fraudulent instruments or per
jured evidence or the fraudulent actions pertain to an 
issue involved in original action and litigated therein. 
Alleghany Corp. v. Kirby, D.C.N.Y., 218 F.Supp. 164, 
183. 
Species of fraud which renders the document void as, 
for example, an instrument signed by one who had 
neither knowledge nor reasonable opportunity to obtain 
knowledge of its character or its essential terms, is not 
enforceable even by a holder in due course because such 
fraud is intrinsic. U.C.C. § 3-305(2)(c). 
Intrinsic value. The true, inherent and essential value 
of thing, not depending upon accident, place or person 
but same everywhere and to everyone. King v. U. S., 
D.C.Colo., 292 F.Supp. 767, 776. The value of the thing 
INVADIATUS 
itself, rather than any special features which make its 
market value different (e.g. value of silver in coin). 
Introduction. The part of a writing which sets forth 
preliminary matter, or facts tending to explain the sub
ject. 
Intromission. Introduction; admission. 
In English law, term means dealings in stock, goods, 
or cash of a principal coming into the hands of his agent, 
to be accounted for by the agent to his principal. 
Intruder. One who enters upon land without either 
right of possession or color of title. In a more restricted 
sense, a stranger who, on the death of the ancestor, 
enters on the land, unlawfully, before the heir can 
enter. Williams v. Alt, 226 N.Y. 283, 123 N.E. 499, 500. 
Also one who intrudes on office and assumes to exercise 
its functions without legal title or color of right thereto. 
Alleger v. School Dist. No. 16, Newton County, Mo.App., 
142 S.W.2d 660, 663. See Encroachment; Intrusion; Tres
pass. 
Intrusion. Act of wrongfully entering upon or taking 
possession of property of another. See also Encroach
ment; Trespass. 
At common law, a species of injury by ouster or 
amotion of possession from the freehold, being an entry 
of a stranger, after a particular estate of freehold is 
determined, before him in remainder or reversion. Boy
lan v. Deinzer, 45 N.J.Eq. 485, 18 A. 11 9, 121. 
Intrust. To confer a trust upon; to deliver to another 
something in trust or to commit something to another 
with a certain confidence regarding his care, use or 
disposal of it. See also Bailment; Fiduciary; Trust. 
Intuitus I ;)ntyUw;)t;}s/. Lat. A view; regard; contem
plation. Diverso intuitu (q.v.), with a different view. 
Inundation. To flood or swamp. The overflow of waters 
by coming out of their natural bed or confines. See also 
Backwater; Flood; Water; Water course. 
Inure linyur /. To take effect; to result. In property 
law, to come to the benefit of a person or to fix his 
interest therein. 
Inurement linyurm;)nt/. Useful, beneficial; serving to 
the use or benefit of a person or thing. Dickerson v. 
Colgrove, 100 U.S. 578, 25 L.Ed. 618. 
Inutilis labor et sine fructu non est effectus legis 
linyuwt;)};}s l{�yb;)r et sayniy fr�kt(y)uw non est ;)fekt;)s 
liyj;}s/. Useless and fruitless labor is not the effect of 
law. The law forbids such recoveries whose ends are 
vain, chargeable, and unprofitable. 
In utroque jure lin y;}trowkwiy juriy/. In both laws; 
i.e., the civil and canon law. 
Invadiare linveydiyeriy/. To pledge or mortgage lands. 
Invadiatio linveydiyeysh(iy)ow/. A pledge or mortgage. 
Invadiatus linveydiyeyt;)s/. One who is under pledge; 
one who has had sureties or pledges given for him.

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INVALID 
Invalid. Vain; inadequate to its purpose; not of binding 
force or legal efficacy; lacking in authority or obli
gation. See also Illegal; VOid; Voidable. 
Invasion. An encroachment upon the rights of another. 
The incursion of an army for conquest or plunder. Act 
of invading; intrusion; encroachment. 
Invasiones /inveyz(h)iyowniyz/. The inquisition of ser
jeanties and knights' fees. 
Invasion of corpus principal. Payments made from 
the sum created to generate income (e.g. trust res) and 
not from the income so generated. 
Invasion of privacy. The unwarranted appropriation 
or exploitation of one's personality, publicizing one's 
private affairs with which public has no legitimate con
cern, or wrongful intrusion into one's private activities, 
in such a manner as to cause mental suffering, shame or 
humiliation to person of ordinary sensibilities. Shorter 
v. Retail Credit Co., D.C.S.C., 251 F.Supp. 329, 330. 
Violation of right which one has to be left alone and 
unnoticed if he so chooses. Such invasion by an individ
ual or the government may constitute an actionable 
tort; though public figures have less protection than 
private persons. See Eavesdropping; Privacy laws. 
Invecta et illata /invekt� ed �leyt�/. Lat. In the civil 
law, things carried in and brought in. Articles brought 
into a hired tenement by the hirer or tenant, and which 
became or were pledged to the lessor as security for the 
rent. 
Inveigle. To "inveigle" means to lure or entice or lead 
astray, by false representations or promises, or other 
deceitful means. 
Inveniens libellum famosum et non corrumpens pu
nitur /inviyn(i)yenz l�hel�m f�mows�m et non 
k�r;}mp�nz pyuwn�t�r/. He who finds a libel and does 
not destroy it is punished. 
Invent. To find out something new. To devise, contrive, 
and produce something not previously known or exist
ing, by the exercise of independent investigation and 
experiment; particularly applied to machines, mechani
cal appliances, compositions, and patentable inventions 
of every sort. To create. E. W. Bliss Co. v. United 
States, 248 U.S. 37, 39 S.Ct. 42, 43, 63 L.Ed. 11 2. See 
also Invention; Patent. 
Inventio /invensh(iy)ow/. In the civil law, finding; one 
of the modes of acquiring title to property by occupancy. 
In old English law, a thing found; as goods or treas
ure-trove. The plural, "inventiones," is also used. 
Invention. In patent law, the act or operation of finding 
out something new; the process of contriving and pro
ducing something not previously known or existing, by 
the exercise of independent investigation and experi
ment. Also the article or contrivance or composition so 
invented. Smith v. Nichols, 88 U.S. (21 Wall.) 11 2, 22 
L.Ed. 566; Hollister v. Mfg. Co., 113 U.S. 59, 5 S.Ct. 717, 
28 L.Ed. 901. 
Invention is a concept; a thing involved in the mind; 
it is not a revelation of something which exists and was 
824 
unknown, but is creation of something which did not 
exist before, possessing elements of novelty and utility 
in kind and measure different from and greater than 
what the art might expect from skilled workers. 
Pursche v. Atlas Scraper & Engineering Co., C.A.Cal., 
300 F.2d 467, 472. The finding out-the contriving, the 
creating of something which did not exist, and was not 
known before, and which can be made useful and advan
tageous in the pursuits of life, or which can add to the 
enjoyment of mankind. Not every improvement is in
vention; but to entitle a thing to protection it must be 
the product of some exercise of the inventive faculties 
and it must involve something more than what is obvi
ous to persons skilled in the art to which it relates. 
Mere adaptation of known process to clearly analogous 
use is not invention; Firestone Tire and Rubber Co. v. 
U. S. Rubber Co., C.C. A.Ohio, 79 F.2d 948, 952, 953. 
Inventive skill has been defined as that intuitive fac
ulty of the mind put forth in the search for new results, 
or new methods, creating what had not before existed, or 
bringing to light what lay hidden from vision; it differs 
from a suggestion of that common experience which 
arose spontaneously and by a necessity of human rea
soning in the minds of those who had become acquainted 
with the circumstances with which they had to deal. 
Hollister v. Mfg. Co., 11 3 U.S. 59, 5 S.Ct. 717, 28 L.Ed. 
901. Invention, in the nature of improvements, is the 
double mental act of discerning, in existing machines, 
processes or articles, some deficiency, and pointing out 
the means of overcoming it. 
For Examination of invention, see Examination. See 
also Patent; Reduced to practice. 
Inventiones /invenshiyowniyz/. See Inventio. 
Inventor. One who invents or has invented. One who 
finds out or contrives some new thing; one who devises 
some new art, manufacture, mechanical appliance, or 
process; one who invents a patentable contrivance. See 
Invention. 
Inventory. A detailed list of articles of property; a list 
or schedule of property and other assets, containing a 
designation or description of each specific article; quan
tity of goods or materials on hand or in stock; an 
itemized list of the various items or articles constituting 
a collection, estate, stock in trade, etc., with their esti
mated or actual values. In law, the term is often 
applied to such a list made by an executor, administra
tor, or trustee in bankruptcy. 
In accounting, refers to segment of financial state
ment reflecting value of businesses' raw materials, work 
in process, and finished goods. The two primary types 
of inventory accounting methods are First-in, first-out, 
and Last-in, first-out. See FIFO and LIFO. 
Goods held for sale or lease or furnished under con
tracts of service; also, raw materials, work in process or 
materials used or consumed in a business. U.C.C. 
§ 9-109(4). Also, written schedule of such goods. 
Inventory search. An inventory search is not an inde
pendent legal concept but rather an incidental adminis
trative step following arrest and preceding incarcera-

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825 
tion. Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 
2605, 2608, 77 L.Ed.2d 65. To determine whether such 
search is unreasonable, the court balances its intrusion 
on the individual's Fourth Amendment interests against 
its promotion of legitimate governmental interests. De
laware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 
59 L.Ed.2d 650. See Fed.R.Crim.P. 41. 
In ventre sa mere lin v€mtriy sa mer/. L. Fr. In his 
mother's womb; spoken of an unborn child. 
Inventus linvent�s/. Lat. Found. Thesaurus inventus, 
treasure-trove. Non est inventus, [he] is not found. 
In veram quantitatem fidejussor teneatur, nisi pro 
certa quantitate accessit lin vir�m kwont�teyt�m 
faytiyj�s�r teniyeyt�r, naysay prow s�rt� kwont�teytiy 
�kses�t/. Let the surety be holden for the true quantity, 
unless he agree for a certain quantity. 
In verbis, non verba, sed res et ratio, qurerenda est 
lin v�rb�s non v;)rb�, sed riyz et reysh(iy)ow, kw�rend� 
est/. In the construction of words, not the mere words, 
but the thing and the meaning, are to be inquired after. 
Inveritare linvehr�teriy/. To make proof of a thing. 
Inverse condemnation. An action brought by a proper
ty owner seeking just compensation for land taken for a 
public use, against a government or private entity hav
ing the power of eminent domain. It is a remedy 
peculiar to the property owner and is exercisable by him 
where it appears that the taker of the property does not 
intend to bring eminent domain proceedings. Ossman 
v. Mountain States Tel. & Tel. Co., 32 Colo.App. 230, 511 
P.2d 517, 519. Such an action might result, for exam
ple, where use and value of property adjacent to new 
airport or freeway is materially diminished. 
Inverse order of alienation doctrine. Under this doc
trine, mortgage or other lienor, where land subject to 
lien has been aliened in separate parcels successively, 
shall satisfy his lien out of land remaining in grantor or 
original owner if possible, and, if that be insufficient, he 
shall resort to parcels aliened in inverse order of their 
alienation. Fidelity & Casualty Co. of New York v. 
Massachusetts Mut. Life Ins. Co., C.C.A.N.C., 74 F.2d 
881, 884. 
Invest. See Investment. 
Investigate. To follow up step by step by patient in
quiry or observation. To trace or track; to search into; 
to examine and inquire into with care and accuracy; to 
find out by careful inquisition; examination; the taking 
of evidence; a legal inquiry. See also Discovery; Inspec
tion. 
Investigation. The process of inquiring into or tracking 
down through inquiry. Mason v. Peaslee, 173 C.A.2d 
587, 343 P.2d 805, 808. 
Investigatory interrogation. An "investigatory inter
rogation" outside scope of Miranda Rule is questioning 
of persons by law enforcement officers in a routine 
manner in an investigation which has not reached an 
accusatory stage and where such persons are not in legal 
custody or deprived of their freedom of action in any 
INVESTMENT ADVISORS ACT 
significant way. State v. Price, 233 Kan. 706, 664 P.2d 
869, 874. See also Interrogation. 
Investigatory powers. Authority conferred on govern
mental agencies to inspect and compel disclosure of facts 
germane to the investigation. See also Inquest; Inspec
tion laws; Search warrant; Subpoena. 
Investigatory stop. Such stop, which is limited to brief, 
nonintrusive detention during a frisk for weapons or 
preliminary questioning, is considered a "seizure" suffi
cient to invoke Fourth Amendment safeguards, but be
cause of its less intrusive character requires only that 
the stopping officer have specific and articulable facts 
sufficient to give rise to reasonable suspicion that a 
person has committed or is committing a crime. U.S. v. 
Black, C.A.Ill., 675 F.2d 129, 133. See also Stop and 
frisk. 
Investitive fact linvest�t�v frektl. The fact by means of 
which a right comes into existence; e.g., a grant of a 
monopoly; the death of one's ancestor. 
Investiture linvest�ty�r/. A ceremony which accompa
nied the grant of lands in the feudal ages, and consisted 
in the open and notorious delivery of possession in the 
presence of the other vassals, which perpetuated among 
them the ;era of their new acquisition at the time when 
the art of writing was very little known; and thus the 
evidence of the property was reposed in the memory of 
the neighborhood, who, in case of disputed title, were 
afterwards called upon to decide upon it. 
In. Ecclesiastical law, investiture is one of the formali
ties by which the election of a bishop is confirmed by the 
archbishop. 
Investment. An expenditure to acquire property or oth
er assets in order to produce revenue; the asset so 
acquired. The placing of capital or laying out of money 
in a way intended to secure income or profit from its 
employment. Securities & Exchange Commission v. 
Wickham, D.C.Minn., 12 F.Supp. 245, 247. To purchase 
securities of a more or less permanent nature, or to 
place money or property in business ventures or real 
estate, or otherwise lay it out, so that it may produce 
revenue or gain (or both) in the future. See also Invest
ment contract. 
To clothe one with the possession of a fief or benefice. 
See Investiture. 
For Capital investment, see Capital. See also Legal 
investments; Legal list; Prudent Man Rule. 
Investment advisor. Any person who, for compensa
tion, engages in the business of advising others, either 
directly or through publications or writings, as to the 
value of securities or as to the advisability of investing 
in, purchasing, or selling securities, or who, for compen
sation and as a part of a regular business, issues or 
promulgates analyses or reports concerning securities. 
Uniform Securities Act, § 401(f). 
Investment Advisors Act. Federal statute which regu
lates activities of those who furnish investment advice 
and counselling. 15 U.S.C.A. § 80b. The Act is admin
istered by the Securities and Exchange Commission

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INVESTMENT ADVISORS ACT 
which, among other things, requires registration of in
vestment advisors. 
Investment banker. A financial institution that under
writes and sells new securities. In general, investment 
bankers assist firms in obtaining new financing. An 
underwriter, the middleman or broker between the cor
poration issuing new securities and the public. The 
usual practice is for one or more investment bankers to 
buy outright from a corporation a new issue of stocks or 
bonds. The group forms a syndicate to sell the securi
ties to individuals and institutions. Investment bankers 
also distribute very large blocks of stocks or bonds-per
haps held by an estate. Thereafter the market in the 
security may be over-the-counter or on a stock exchange. 
See also Underwriter. 
Investment banking. Underwriting and selling primar
ily new issues of stocks and bonds to investors. See 
Investment banker. 
Investment bill. Type of bill of exchange purchased at a 
discount and intended to be held to maturity in the form 
of an investment. 
Investment company. Any issuer which: (1) is or holds 
itself out as being engaged primarily, or proposes to 
engage primarily, in the business of investing, reinvest
ing, or trading in securities; (2) is engaged or proposes 
to engage in the business of issuing face-amount certifi
cates of the installment type, or has been engaged in 
such business and has any such certificates outstanding; 
or (3) is engaged or proposes to engage in the business of 
investing, reinvesting, owning, holding, or trading in 
securities, and owns or proposes to acquire investment 
securities having a value exceeding 40 percentum of the 
value of such issuer's total assets (exclusive of Govern
ment securities and cash items) on an unconsolidated 
basis. Investment Company Act, § 3. 
A company or trust which uses its capital to invest in 
other companies. The most common kind of investment 
company is the mutual fund. An investment company 
differs from a holding company in that the latter seeks 
control of the ventures in which it invests while an 
investment company seeks the investment for its own 
sake and normally diversifies its investments. There 
are two principal types: the closed-end and the open
end, or mutual fund. Shares in closed-end investment 
companies are readily transferable in the open market 
and are bought and sold like other shares. Capitaliza
tion of these companies remains the same unless action 
is taken to change. Open-end funds sell their own new 
shares to investors, stand ready to buy back their old 
shares, and are not listed. Open-end funds are so called 
because their capitalization is not fixed; they issue more 
shares as demanded. See also Mutual fund. 
Investment Company Act. Federal statute passed in 
1940 which regulates investment companies. 15 U.S. 
C.A. § 80a-l et seq. See Investment company. 
Investment contract. A contract, transaction or 
scheme whereby a person invests his money in a com
mon enterprise and is led to expect profits solely from 
the efforts of the promoter or a third party. S. E. C. v. 
826 
W. J. Howey Co., 328 U.S. 293, 298, 66 S.Ct. 1100, 1103, 
90 L.Ed. 1244, 1249. The placing of capital or laying out 
of money in a way intended to secure income or profit 
from its employment. State by Spannaus v. Coin 
Wholesalers, Inc., Minn., 250 N.W.2d 583. 
To fall within scope of the federal securities acts an 
"investment contract" must involve three elements: (1) 
an investment of money, (2) in a common enterprise, 
and (3) an expectation of profits solely from the efforts 
of others. Hector v. Wiens, C.A.Mont., 533 F.2d 429, 
432. 
Investment credit. See Investment tax credit. 
Investment indebtedness. Debt incurred to carry or 
acquire investments by the taxpayer in assets that will 
produce portfolio income. Limitations are placed upon 
interest deductions that are incurred with respect to 
such debt (i.e., generally to the corresponding amount of 
investment income). 
Investment property. Generally, any property pur
chased for the primary purpose of profit. The profit 
may be from income or from resale. 
Investment security. Under U.C.C., an instrument is
sued in bearer or registered form as a type commonly 
recognized as a medium for investment and evidencing a 
share or other interest in the property or enterprise of 
the issuer. § 8-102(1)(a). See also Investment contract; 
Security. 
Investment tax credit. Federal legislation designed to 
stimulate investment by business in capital goods and 
equipment by allowing a percentage of the purchase 
price as a credit against individual and corporate taxes 
due and not merely as a deduction from taxable income. 
The Tax Reform Act of 1986 generally repealed this 
credit retroactively for most property placed in service 
after January 1, 1986. See also Recapture of investment 
tax credit. 
Investment trust. A company which sells its own stock 
and invests the money in stocks, real estate, and other 
investments. See also Investment company; Mutual fund; �-" 
Real estate investment trust. 
Invidious discrimination. Term "invidious" in context 
of claim that difference in treatment amounts to "invid
ious" discrimination in violation of the Fourteenth 
Amendment, means arbitrary, irrational and not reason
ably related to a legitimate purpose. Eaton v. State, 
Del., 363 A.2d 440, 44l. 
In vinculis lin viIJk(y);)I;)s/. In chains; in actual custo
dy. Applied also, figuratively, to the condition of a 
person who is compelled to submit to terms which op
pression and his necessities impose on him. 
Inviolability linvay;)l;)bil;)diy/. The attribute of being 
secured against violation. Safe from trespass or assault. 
Inviolate. Intact; not violated; free from substantial 
impairment. Com. v. Almeida, 362 Pa. 596, 68 A.2d 595. 
In viridi observania lin vir;)day obz�rvrensh(iy)�/. 
Present to the minds of men, and in full force and 
operation.

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827 
Invitation. In the law of negligence, and with reference 
to trespasses on realty, invitation is the act of one who 
solicits or incites others to enter upon, remain in, or 
make use of, his property or structures thereon, or who 
so arranges the property or the means of access to it or 
of transit over it as to induce the reasonable belief that 
he expects and intends that others shall come upon it or 
pass over it. Thus the proprietor of a store, theatre or 
amusement park "invites" the public to come upon his 
premises for such purposes as are connected with its 
intended use. 
The differences in duties of care owed as between and 
among licensees, business guests and social guests have 
been eliminated in many jurisdictions so that today 
reasonable care is owed to all lawful visitors and this 
phrase includes all but trespassers. Mounsey v. Ellard, 
363 Mass. 693, 297 N .E.2d 43. 
An invitation may be express, when the owner or 
occupier of the land by words invites another to come 
upon it or make use of it or of something thereon; or it 
may be implied when such owner or occupier by acts or 
conduct leads another to believe that the land or some
thing thereon was intended to be used as he uses them, 
and that such use is not only acquiesced in by the owner 
or occupier, but is in accordance with the intention or 
design for which the way or place or thing was adapted 
and prepared and allowed to be used. 
See also Attractive nuisance doctrine; Invitee. 
Invitation to bid. Type of advertisement used by one 
who desires bids to be submitted for a particular job; it 
usually contains sufficient specifications to permit an 
intelligent bid. 
Invited error. Doctrine of "invited error" provides that 
when the court acquiesces in course of conduct urged by 
defendant, defendant is estopped on appeal from raising 
as error that conduct or its result. People v. Crespin, 
Colo.App., 682 P.2d 58, 59. See also Error. 
Invitee. A person is an "invitee" on land of another if 
(1) he enters by invitation, express or implied, (2) his 
entry is connected with the owner's business or with an 
activity the owner conducts or permits to be conducted 
on his land and (3) there is mutuality of benefit or 
benefit to the owner. Madrazo v. Michaels, 1 Ill.App.2d 
583, 274 N.E.2d 635, 638. Person who is on property of 
another for economic benefit of owner or for the econom
ic benefit of both parties. Joseph v. Calvary Baptist 
Church, Ind.App. 4 Dist., 500 N.E.2d 250, 253. 
The leading English case of Indermaur v. Dames laid 
down the rule that as to those who enter premises upon 
business which concerns the occupier, and upon his 
invitation express or implied, the latter is under an 
affirmative duty to protect them, not only against dan
gers of which he knows, but also against those which 
with reasonable care he might discover. The case has 
been accepted in all common law jurisdictions, and the 
invitee, or as he is sometimes called the business visitor, 
is placed upon a higher footing than a licensee. The 
typical example, of course, is the customer in a store. 
There is however a conflict of decisions as to whether 
INVOLUNTARY CONFESSION 
certain visitors are to be included in the definition of 
invitee. The minority view is that there must be some 
economic benefit to the occupier before his duty to the 
visitor attaches. The majority view holds however that 
the basis of liability is not any economic benefit to the 
occupier, but a representation to be implied when he 
encourages others to enter to further a purpose of his 
own, that reasonable care has been exercised to make 
the place safe for those who come for that purpose; e.g. 
persons attending free public lectures, persons using 
municipal parks, playgrounds, libraries and the like. 
The element of "invitation" however must exist. 
See also Guest; Licensee; Public invitee. 
Invito linvaytow/. Lat. Being unwilling. Against or 
without the assent or consent. 
Invito beneficium non datur linvaytow bEm�
fish(i)y�m non deyt�r/. A benefit is not conferred on 
one who is unwilling to receive it; that is to say, no one 
can be compelled to accept a benefit. 
In vocibus videndum non a quo sed ad quid sumatur 
lin v6ws�b�s v�dend�m non ey kw6w sed red kwid 
s�meyt�r I. In discourses, it is to be considered not from 
what, but to what, it is advanced. 
Invoice. A written account, or itemized statement of 
merchandise shipped or sent to a purchaser, consignee, 
factor, etc., with the quantity, value or prices and 
charges annexed, and may be as appropriate to a con
signment or a memorandum shipment as it is to a sale. 
Joseph B. Cooper & Son, Inc. v. Finlay Depts., Inc., 11 
Misc.2d 382, 174 N.Y.S.2d 265, 269. Document showing 
details of a sale or purchase transaction. A list sent to a 
purchaser, factor, consignee, etc., containing the items, 
together with the prices and charges of merchandise 
sent or to be sent to him. A writing made on behalf of 
an importer, specifying the merchandise imported, and 
its true cost or value. See also Consular invoice. 
Invoice book. A book in which invoices are copied. 
Involuntary. Without will or power of choice; opposed 
to volition or desire. An involuntary act is that which is 
performed with constraint (q.v.) or with repugnance, or 
without the will to do it. An action is involuntary, then, 
which is performed under duress, force, or coercion. See 
Coercion; Duress. 
As to involuntary Dismissal; Indebtedness; Nonsuit; 
and Trust, see those titles. For involuntary bankruptcy, 
see Ban kruptcy proceedings. 
Involuntary alienation. A loss of or parting with prop
erty by attachment, levy, sale for taxes or other debts. 
See also Involu ntary conveyance. 
Involuntary confession. Confession is "involuntary" if 
it is not the product of an essentially free and unre
strained choice of its maker or where maker's will is 
overborne at the time of the confession. People v. 
Pickerel, 32 Ill.App.3d 822, 336 N.E.2d 778, 780. Term 
refers to confessions that are extracted by any threats of 
violence, or obtained by direct or implied promises, or by 
exertion of improper influence. Phillips v. State, Okl. 
Cr., 330 P.2d 209, 214.

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INVOLUNTARY CONFESSION 
An involuntarily obtained confession cannot be used 
in prosecuting a defendant. Such a confession is inad
missible both because it is likely to be unreliable and 
because of society's aversion to forced confessions, even 
if true. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 
12 L.Ed.2d 908. Coercive activity is a necessary predi
cate to the finding that a confession is not voluntary 
within the meaning of the Due Process Clause of the 
14th Amendment. Colorado v. Connelly, 479 U.S. 157, 
107 S.Ct. 515, 93 L.Ed.2d 473. See 18 U.S.C.A. § 350l. 
See also Confession; Interrogation; Self-incrimination. 
Involuntary conversion. The loss or destruction of 
property through theft, casualty, or condemnation. Any 
gain realized on an involuntary conversion can, at the 
taxpayer's election, be considered nonrecognizable for 
Federal income tax purposes if the owner reinvests the 
proceeds within a prescribed period of time in property 
that is similar or related in service or use. I.R.C. § 1033. 
Involuntary conversion for federal income tax pur
poses must result from (1) destruction of property in 
whole or in part; or (2) theft; or (3) actual seizure; or (4) 
requisition or condemnation or threat or imminence of 
requisition or condemnation. Hitke v. C. I. R., c.A.m., 
296 F.2d 639, 643, 644. 
See also Condemnation. 
Involuntary conveyance. A transfer of real property 
without the consent of the owner, such as in a divorce, 
in condemnation, etc. See also Involu ntary alienation; 
Sheriff's sale. 
Involuntary deposit. In the law of bailments, one made 
by the accidental leaving or placing of personal property 
in the possession of another, without negligence on the 
part of the owner, or, in cases of fire, shipwreck, inunda
tion, riot, insurrection, or the like extraordinary emer
gencies, by the owner of personal property committing it 
out of necessity to the care of any person. 
Involuntary discontinuance. A discontinuance is in
voluntary where, in consequence of technical omission, 
mispleading, or the like, the suit is regarded as out of 
court, as where the parties undertake to refer a suit that 
is not referable, or omit to enter proper continuances. 
Involuntary lien. A lien, such as a tax lien, judgment 
lien, etc., which attaches to property without the con
sent of the owner, rather than a mortgage lien, to which 
the owner agrees. 
Involuntary manslaughter. The unlawful killing of a 
human being in the commission of an unlawful act not 
amounting to felony, or in the commission of a lawful 
act which might produce death in an unlawful manner, 
or without due caution and circumspection. An unlaw
ful homicide, unintentionally caused by an act which 
constitutes such disregard of probable harmful conse
quences to another as to constitute wanton or reckless 
conduct. Com. v. McCauley, 355 Mass. 554, 246 N.E.2d 
425, 428. See also Manslaughter. 
Involuntary payment. One obtained by fraud, oppres
sion, or extortion, or to avoid the use of force to coerce 
828 
it, or to obtain the release of the person or property 
from detention. 
Involuntary servitude. The condition of one who is 
compelled by force, coercion, or imprisonment, and 
against his will, to labor for another, whether he is paid 
or not. Ex parte Wilson, 11 4 U.S. 417, 5 S.Ct. 935, 29 
L.Ed. 89; In re Slaughterhouse Cases, 83 U.S. (16 Wall.) 
69, 21 L.Ed. 394; Robertson v. Baldwin, 165 U.S. 275, 17 
S.Ct. 326, 41 L.Ed. 715. Slavery, peonage, or compulsory 
labor for debts; all of which are prohibited by the 13th 
Amendment, U.S.C onst. 
Involuntary transfer. See Involu ntary conveyance. 
Involuntary trust. An implied trust which arises be
cause the law imposes trust-like consequences on certain 
transactions where, for example, an agent breaches his 
fiduciary duty and buys property in his own name which 
rightfully should have been purchased for the benefit of 
his principal (constructive trust) or A supplies the funds 
for purchase of property by B with the understanding 
that A will own it but title will be taken in the name of 
B (resulting trust). 
In witness whereof lin witn::ls (h)werov/. The initial 
words of the concluding clause in deeds: "In witness 
whereof the said parties have hereunto set their hands", 
etc. A translation of the Latin phrase "in cujus rei 
testimonium '� 
IOLTA. Interest on Lawyers' Trust Accounts. In some 
states, lawyers turn over such interest to public service 
institutions (e.g., Mass.). 
Iota. The minutest quantity possible. Iota is the small
est Greek letter. The word "jot" is derived therefrom. 
IOU. A memorandum of debt, consisting of these letters 
("l owe you"), a sum of money and the debtor's signa
ture, is termed an "IOU". 
IpSa! leges cupiunt ut jure regantur lipsiy liyjiyz 
kyuwpiY::lnt ;}t juriy r::lgrent::lr/. The laws themselves 
require that they should be governed by right. 
Ipse lipsiy I. Lat. He himself; the same; the very 
person. 
Ipse dixit lipsiy diks::lt!. He himself said it; a bare 
assertion resting on the authority of an individual. 
Ipsissimis verbis lipsis::lm::ls v�rb::ls/. In the identical 
words; opposed to "substantially". 
Ipso facto lip sow frektow/. By the fact itself; by the 
mere fact. By the mere effect of an act or a fact. 
Ipso jure lipsow juriy/. By the law itself; by the mere 
operation of law. 
IRA. Individual Retirement Account. 
Ira furor brevis est I ayr::l fyur::lr briYV::ls est!. Anger is 
a short insanity. 
Ira motus I ayr::l mowt::ls/. Lat. Moved or excited by 
anger or passion. A term sometimes formerly used in 
the plea of son assault demesne. 
IRAN. Individual Retirement Annuity.

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829 
IRB. Individual Retirement Bond. 
I.R.C. Internal Revenue Code. 
I.R.D. Income in respect of decedent. 
Ire ad largum / ayriy red larg�m/. Lat. To go at large; 
to escape; to be set at liberty. 
Iron-safe clause. A clause in policies of fire insurance, 
requiring the insured to preserve his books and invento
ry in an iron or fireproof safe, or in some secure place 
not exposed to a fire which would destroy the building. 
This provision casts on the insured the responsibility for 
the loss of books and records if due to the wrongful act 
or negligence of himself or his employees in failing to 
comply with the requirement. 
Irrational. Unreasonable, foolish, illogical, absurd; a 
person may be irrational in such sense, and still not be 
insane in the legal sense. 
Irreconcilable differences. No-fault ground for dissolu
tion of marriage under many state divorce statutes. See 
also Irretrievable breakdown of marriage. 
Irrecusable /ir�kyuwz�b�l/. A term used to indicate a 
certain class of contractual obligations recognized by the 
law which are imposed upon a person without his con
sent and without regard to any act of his own. They are 
distinguished from recusable obligations which are the 
result of a voluntary act on the part of a person on 
whom they are imposed by law. A clear example of an 
irrecusable obligation is the obligation imposed on every 
man not to strike another without some lawful excuse. 
A recusable obligation is based upon some act of a 
person bound, which is a condition precedent to the 
genesis of the obligation. These terms were first sug
gested by Prof. Wigmore in 8 Harv.Law Rev. 200. 
Irregular. Not regular; not according to established 
law, method, or usage; not conformable to nature, to 
rules of moral rectitude, or to established principles; not 
normal, disorderly. Sultan Turkish Bath, Inc. v. Board 
of Police Com'rs of City of Los Angeles, 169 C.A.2d 188, 
337 P.2d 203, 210. As to irregular Deposit; Indo rsement; 
Process; and Succession, see those titles. 
Irregularity. The doing or not doing that, in the con
duct of a suit at law, which, conformably with the 
practice of the court, ought or ought not to be done. 
Violation or nonobservance of established rules and 
practices. The want of adherence to some prescribed 
rule or mode of proceeding; consisting either in omitting 
to do something that is necessary for the due and 
orderly conducting of a suit, or doing it in an unseasona
ble time or improper manner. The technical term for 
every defect in mechanics of proceedings, or the mode of 
conducting an action or defense, as distinguishable from 
defects in pleadings (see e.g. Fed.R.C ivil P. 32(d), irregu
larities in taking of depositions). Term is not synon
ymous with "illegality." 
In Canon law, any impediment which prevents a man 
from taking holy orders. 
Irregular judgment. One rendered contrary to the 
method of procedure and practice allowed by the law in 
IRRESISTIBLE IMPULSE 
some material respect. Davidson Chevrolet, Inc. v. City 
and County of Denver, 138 Colo. 171, 330 P.2d 111 6, 
111 8, 111 9. 
Irrelevancy. The absence of the quality of relevancy, as 
in evidence or pleadings. The quality or state of being 
inapplicable or impertinent to a fact or argument. Ir
relevancy, in an answer, consists in statements which 
are not material to the decision of the case; such as do 
not form or tender any material issue. Such irrelevancy 
in pleadings may be stricken on motion of party. Fed.R. 
Civil P. 12(f). See also Im material; Irrelevant allegation; 
Irrelevant evidence. 
Irrelevant allegation. One which has no substantial 
relation to the controversy between the parties to the 
suit, and which cannot affect the decision of the court. 
Wayte v. Bowker Chemical Co., 196 App.Div. 665, 187 
N.Y.S. 276, 277; Commander Milling Co. v. Westing
house Electric and Mfg. Co., C.C.A.Minn., 70 F.2d 469, 
472. The test of any allegation being whether it tends 
to constitute a cause of action or a defense. Isaacs v. 
Salomon, 159 App.Div. 675, 144 N.Y.S. 876, 877. See 
also Immaterial argument. 
An allegation is irrelevant, where the issue made by 
its denial has no effect upon the cause of action or no 
connection with the allegation. In this connection, "re
dundant" is almost a synonym for "irrelevant". Irrele
vant matters may be stricken from pleadings on motion 
of party. Fed.R. Civil P. 12(f). 
Irrelevant answer. See Answer. 
Irrelevant evidence. Not relevant; immaterial; not 
relating or applicable to the matter in issue; not sup
porting the issue or fact to be proved. Evidence is 
irrelevant where it has no tendency to prove or disprove 
any issue of fact involved. Irrelevant evidence is com
monly objected to and disallowed at trial. Fed.Evid.R. 
402. See also Im material; Impertinence; Irrelevancy. 
Irreparable damages. See Damages. 
Irreparable harm. See Injury (Irreparable injury). 
Irreparable injury. See Damages; Injun ction; Injury (Ir-
reparable injury). 
Irrepleviable /ir�plE�viy�b�l/. That cannot be replevied 
or delivered on sureties. Spelled, also, "irreplevisable" 
/ir�plev�z�b�l/ . 
Irresistible force. A term applied to such an interposi
tion of human agency as is, from its nature and power, 
absolutely uncontrollable; . as the inroads of a hostile 
army. See also Act of God. 
Irresistible impulse. As used as insanity defense, an 
"irresistible impulse" means an impulse to commit an 
unlawful or criminal act which cannot be resisted or 
overcome because mental disease has destroyed the free
dom of will, the power of self-c ontrol, and the choice of 
actions. Snider v. Smyth, D.C.Va., 187 F.Supp. 299, 302. 
The "irresistible impulse" test for insanity is a test 
which is broader than the M'Naghten test. Under the 
"irresistible impulse" test a person may avoid criminal 
responsibility even though he is capable of distinguish-

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IRRESISTIBLE IMPULSE 
ing between right and wrong, and is fully aware of the 
nature and quality of his acts, provided that he estab
lishes that he was unable to refrain from acting. Com. 
v. Walzack, 468 Pa. 210, 360 A.2d 914, 919. See also 
Insanity; M'Na ghten Rule. 
Irretrievable breakdown of marriage. As a no-fault 
ground for divorce means a condition in which either or 
both spouses are unable or unwilling to cohabit as 
husband and wife and for which there are no prospects 
for reconciliation. Harwell v. Harwell, 233 Ga. 89, 209 
S.E.2d 625. In some jurisdictions, it is the sole ground 
for so-called no-fault divorce. See also Irreconcilable 
differences. 
Irrevocable. That which cannot be revoked or recalled. 
Commissioner of Internal Revenue v. Strong Mfg. Co., 
C.C.A.O hio, 124 F.2d 360, 363. 
Irrevocable letter of credit. A confirmed irrevocable 
letter of credit, irrevocable letter, or a confirmed credit 
is a contract to pay on compliance with its terms, and 
needs no formal acknowledgment or acceptance other 
than is therein stated. See also Letter of credit. 
Irrevocable offer. An offer which cannot be revoked or 
recalled by the offeror without liability. U.C.C. 2-205. 
See Firm offer. 
Irrevocable trust. See Trust. 
Irrigation company. A private corporation, authorized 
and regulated by statute in several states, having for its 
object to acquire exclusive rights to the water of certain 
streams or other sources of supply, and to convey it by 
means of ditches or canals through a region where it can 
be beneficially used for agricultural purposes, and either 
dividing the water among stockholders, or making con
tracts with consumers, or furnishing a supply to all who 
apply at fixed rates. 
Irrigation district. A public and quasi-municipal corpo
ration authorized by law in several states, comprising a 
defined region or area of land which is susceptible of one 
mode of irrigation from a common source and by the 
same system of works. These districts are created by 
proceedings in the nature of an election under the 
supervision of a court, and are authorized to purchase or 
condemn the lands and waters necessary for the system 
of irrigation proposed and to construct necessary canals 
and other works, and the water is apportioned ratably 
among the landowners of the district. 
Irrogare lir;}geriy/. Lat. In the civil law, to impose or 
set upon, as a fine. To inflict, as a punishment. To 
make or ordain, as a law. 
Irrotulatio I;}roty;}leysh(iy)ow/. L. Lat. An enrolling; a 
record. 
I.R.S. Internal Revenue Service. 
Is. This word, although normally referring to the 
present, often has a future meaning, but is not synon
ymous with "shall have been." It may have, however, a 
past signification, as in the sense of "has been." 
830 
Island. A piece of land surrounded by water. Land in a 
navigable stream which is surrounded by water only in 
times of high water is not an island within the rule that 
the state takes title to newly formed islands in navigable 
streams. 
Isolated sale. Isolated sale which does not entail im
plied warranty of merchantability is one which occurs 
only once or at least very infrequently within ordinary 
course of business. McHugh v. Carlton, D.C.S.C., 369 
F.Supp. 1271, 1277. 
Is qui cognoscit lis kwity k;}gno(w)s;}t/. Lat. The cogni
zor in a fine. Is cui cognoscitur lis k(yuw)ay 
k;}gnos;}t;}r I, the cognizee. 
Issei liysey/. Jap. A term used to describe alien Japa
nese residing in the United States. 
Issuable. Leading or tending to, or producing, an issue; 
relating to an issue or issues. 
Issuable defense. In common law pleading, a technical 
expression meaning a plea to the merits, properly set
ting forth a legal defense, as distinguished from a plea 
in abatement, or any plea going only to delay the case. 
Issuable plea. In common law pleading, a plea to the 
merits; a traversable plea. A plea such that the ad
verse party can join issue upon it and go to trial. It is 
true a plea in abatement is a plea, p_�d if it be properly 
pleaded, issues may be found on it. In the ordinary 
meaning of the word "plea", and of the word "issuable," 
such pleas may be called "issuable pleas," but, when 
these two words are used together, "issuable plea," or 
"issuable defense," they have a technical meaning, to
wit, pleas to the merits. 
Issuable terms. In the former practice of the English 
courts, Hilary term and Trinity term were called "issua
ble terms," because the issues to be tried at the assizes 
were made up at those terms. But the distinction was 
superseded by the provisions of the judicature acts of 
1873 and 1875. 
Issue, v. To send forth; to emit; to promulgate; as, an 
officer issues orders, process issues from a court. To put 
into circulation; as, the treasury issues notes. To send 
out, to send out officially; to deliver, for use, or author
itatively; to go forth as authoritative or binding. When 
used with reference to writs, process, and the like the 
term is ordinarily construed as importing delivery to the 
proper person, or to the proper officer for service, etc. 
With respect to securities, refers to act or process of 
offering stocks or bonds -for sale to public or institutional 
investors. 
In financial parlance the term "issue" has two phases 
of meaning. "Date of issue" when applied to notes, 
bonds, etc., of a series, usually means the arbitrary date 
fixed as the beginning of the term for which they run, 
without reference to the precise time when convenience 
or the state of the market may permit of their sale or 
delivery. When the securities are delivered to the pur
chaser, they will be "issued" to him, which is the other 
meaning of the term. See also "Securities ': below.

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831 
Issue, n. The act of issuing, sending forth, emitting or 
promulgating; the giving a thing its first inception; as 
the issue of an order or a writ. 
See also Date of issue. 
Pleading and Practice 
A single, certain, and material point, deduced by the 
allegations and pleadings of the parties, which is af
firmed on the one side and denied on the other. A fact 
put in controversy by the pleadings; such may either be 
issues of law or fact. An "issue" is a disputed point or 
question to which parties to action have narrowed their 
several allegations and upon which they are desirous of 
obtaining either decision of court on question of law or 
of court or jury on question of fact. Muller v. Muller, 
235 Cal.App.2d 341, 45 Cal.Rptr. 182, 184. 
Real or feigned. A real or actual issue is one formed in 
a regular manner in a regular suit for the purpose of 
determining an actual controversy. A feigned issue is 
one made up by direction of the court, upon a supposed 
case, for the purpose of obtaining the verdict of a jury 
upon some question of fact collaterally involved in the 
cause. Such issues are generally ordered by a court of 
equity, to ascertain the truth of a disputed fact. They 
are also used in courts of law, by the consent of the 
parties, to determine some disputed rights without the 
formality of pleading; and by this practice much time 
and expense are saved in the decision of a cause. The 
name is a misnomer, inasmuch as the issue itself is upon 
a real, material point in question between the parties, 
and the circumstances only are fictitious. 
Ultimate issue. Signifies either such an issue as within 
itself is sufficient and final for the disposition of the 
entire case or one which in connection with other issues 
will serve such end. First State Bank of Seminole v. 
Dillard, Tex.Civ.App., 71 S.W.2d 407, 410. 
See also Failure of issue; Feigned issue; Genuine issue; 
Issue of fact; Issue of law; Issue preclusion; Lawful issue; 
Legal issue; Ulti mate issue. 
Commercial Transactions 
Issue. The first delivery of an instrument to a holder or 
remitter. V.C.C. § 3-102(1)(a). The term also applies to 
documents and refers to the first delivery of a document 
by the person who created it. See V.C.C. § 7-102(1 )(g) 
(definition of "issuer"). Also describes the act of the 
issuer of a letter of credit in sending the credit for the 
purpose of establishing it. 
Descendant's Estates 
All persons who have descended from a common an
cestor. Off spring; progeny; descent; lineage; lineal 
descendants. In this sense, the word includes not only a 
child or children, but all other descendants in whatever 
degree, and it is so construed generally in deeds. But, 
when used in wills, it is, of course, subject to the rule of 
construction that the intention of the testator, as ascer
tained from the language used by him; and hence issue 
may, in such a connection, be restricted to children, or 
ISSUE OF FACT 
to descendants living at the death of the testator, where 
such an intention clearly appears. 
The term "issue" and "descendants" have been held to 
be co-extensive and interchangeable. In re Radt's Will, 
6 Misc.2d 716, 167 N.Y.S.2d 817, 818. 
"Issue" within its normal usage in wills connotes at 
least all progeny or blood descendants. In re Wolfs 
Estate, 98 N.J.Super. 89, 236 A.2d 166, 170. 
The word "issue" in a will is generally a word of 
limitation, and when so used, is sometimes said to be 
equivalent to "heirs of the body". But it has been 
pointed out in other cases that this word is not as strong 
a word of limitation as the words "heirs of the body", 
and yields readily to a context indicating its use as a 
work of purchase. 
Formerly, this term included only legitimate issue. 
Large v. National City Bank of Cleveland, Ohio Prob., 
170 N.E.2d 309, 312; contra Will of Hoffman, 53 A.D.2d 
55, 385 N.Y.S.2d 49. This limitation, however, is chang
ing as a result of Supreme Court cases which prohibit 
unjustified discrimination against children born out of 
wedlock. Reed v. Campbell, 476 V.S. 852, 106 S.Ct. 
2234, 90 L.Ed.2d 858; Trimble v. Gordon, 430 V.S. 762, 
97 S.Ct. 1459, 52 L.Ed.2d 31. In New York, for example, 
an illegitimate child shares in the intestate estate of the 
father. N.Y .EPTL 4-1.2(a)(2)(c). In Massachusetts, the 
word "issue" in a trust was formerly construed to mean 
legitimate children. In trusts executed after April 16, 
1987, however, the word "issue" is to be construed to 
include all biological descendants unless the donor clear
ly expresses a contrary intent. Powers v. Wilkinson, 
399 Mass. 650, 506 N .E.2d 842. 
Many state intestacy statutes provide that an adopted 
child is "issue" of his or her adopted parents. 
Securities 
Any of a corporation's or government's securities of
fered for sale at a certain time to the public, or the act 
or process of distributing (i.e. offering) such for sale by a 
corporation or government entity. A class or series of 
bonds, debentures, etc., comprising all that are emitted 
at one and the same time. See also Distribution; Issuer; 
Offering; Prospectus; Underwriter; When issued. 
Hot issue. A public offering where securities, after their 
initial sale to the public, are resold in the open market 
at prices substantially higher than the original public 
offering price. 
New issue. A stock or bond sold by a corporation for the 
first time. Proceeds may be used to retire outstanding 
securities of the company, for new plant or equipment, 
or for additional working capital. 
Issue of fact. An issue of fact arises when a fact is 
maintained by one party and is controverted by the 
other in the pleadings. General Elec. Co. v. Employ
ment Relations Bd., 3 Wis.2d 227, 88 N.W.2d 691, 701. 
An issue which arises upon a denial in the answer of a 
material allegation of the complaint or in the reply of a 
material allegation in the answer.

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ISSUE OF LAW 
Issue of law. An issue of law arises where evidence is 
undisputed and only one conclusion can be drawn there
from. Chaison v. Stark, Tex.Civ.App., 29 S.W.2d 500, 
503. An issue of law arises upon a demurrer to the 
complaint, cross-complaint, or answer, or to some part 
thereof; or, upon a motion to strike. Calif.C.C.P. § 589. 
In making motion for summary judgment, party must 
show that only issues of law exist for court to consider; 
i.e. must show that there is no genuine issue of material 
facts. Fed.R. Civil P. 56. 
In pleading, an issue upon matter of law, or consisting 
of matter of law, being produced by a demurrer on the 
one side, and a joinder in demurrer on the other. The 
term "issue" may be so used as to include one of law 
raised by demurrer to the complaint, as well as one 
raised by answer. 
Issue preclusion. Term means that when a particular 
issue has already been litigated, further litigation of 
same issue is barred. Hawkeye Sec. Ins. Co. v. Ford 
Motor Co., Iowa, 199 N.W.2d 373, 379. As it relates to 
civil actions, concept of "issue preclusion" is in sub
stance that any fact, question or matter in issue and 
directly adjudicated or necessarily involved in determi
nation of action before court of competent jurisdiction in 
which judgment or decree is rendered on merits, is 
conclusively settled by judgment therein and cannot be 
relitigated in any future action between parties or priv
ies, either in same court or court of concurrent jurisdic
tion, while judgment remains unreversed or unvacated 
by proper authority, regardless of whether claim or 
cause of action, purpose or subject matter of two suits is 
same. Palma v. Powers, D.C.Ill., 295 F.Supp. 924, 933. 
See also Colla teral estoppel doctrine; Res (Res judicata). 
Issuer. Corporation, governmental bodies, and other en
tities that issue and distribute securities. With respect 
to obligations on or defenses to investment securities 
"issuer" includes a person who: (a) places or authorizes 
the placing of his name on a security (otherwise than as 
authenticating trustee, registrar, transfer agent or the 
like) to evidence that it represents a share, participation 
or other interest in his property or in an enterprise or to 
evidence his duty to perform an obligation evidenced by 
the security; or (b) directly or indirectly creates frac
tional interests in his rights or property which fraction
al interests are evidenced by securities; or (c) becomes 
responsible for or in place of any other person described 
as an issuer in this section. U.C.C. § 8-20 1(1). Every 
person who issues or proposes to issue any securities; 
generally the legal entity owning the securities and 
which has the responsibility for causing the same to be 
offered publicly or privately. See also Issue (Securities). 
As regards letters of credit, means a bank or other 
person issuing a credit. U.C.C. § 5-103(1)(c). 
As regards documents of title, means a bailee who 
issues a document except that in relation to an unac
cepted delivery order it means the person who orders 
the possessor of goods to deliver. Issuer includes any 
person for whom an agent or employee purports to act 
in issuing a document if the agent or employee has real 
or apparent authority to issue documents, notwithstand-
832 
ing that the issuer received no goods or that the goods 
were misdescribed or that in any other respect the agent 
or employee violated his instructions. U.C.C. 
§ 7-102(g). 
Issue roll. In English practice, a roll upon which the 
issue in actions at law was formerly required to be 
entered, the roll being entitled of the term in which the 
issue was joined. It was not, however, the practice to 
enter the issue at full length, if triable by the country, 
until after the trial, but onl y to make an incipitur on 
the roll. It was abolished by the rules of Hilary Term, 
1834. 
Issues and profits. As applied to real estate, compre
hend every available return therefrom, whether it arise 
above or below the surface. "Issues" are goods and 
profits of the land. Costanzo v. Harris, 71 Wash.2d 254, 
427 P.2d 963, 965. 
Ita est / ayt;} est/. Lat. So it is; so it stands. In modern 
civil law, this phrase is a form of attestation added to 
exemplifications from a notary's register when the same 
are made by the successor in office of the notary who 
made the original entries. 
Ita lex scripta est / ayt;} leks skript;}m est/. Lat. So the 
law is written. The law must be obeyed notwithstand
ing the apparent rigor of its application. 3 Bl.Comm. 
430. We must be content with the law as it stands, 
without inquiring into its reasons. 1 Bl.Comm. 32. 
Ita semper fiat relatio ut valeat dispositio / ayt;} 
semp;}r fay;}t r;}leysh(iy)ow ;}t vreliy;}t disp;}zish(iy)ow/. 
Let the interpretation be always such that the disposi
tion may prevail. 
Ita te Deus adjuvet / ayt;} tiy diy;}s rej;}v;}t/. Lat. So 
help you God. The old form of administering an oath in 
England, generally in connection with other words, thus: 
Ita te Deus adjuvet, et sacrosancta Dei Evangelia, So 
help you God, and God's holy Evangelists. Ita te Deus 
adjuvet et omnes sancti, So help you God and all the 
saints. 
Ita utere tuo ut aIienum non lredas / ayt;} yuwt;}riy 
t(y)uwow ;}t reliyiyn;}m non liyd;}s/. Use your own prop
erty and your own rights in such a way that you will not 
hurt your neighbor, or prevent him from enjoying his. 
Frequently written "Sic utere tuo': etc. (q.v.). 
Item / ayt;}m/. Also; likewise; in like manner; again; a 
second time. This word was formerly used to mark the 
beginning of a new paragraph or division after the first, 
whence is derived the common application of it to de
note a separate or distinct particular of an account or 
bill. One of the portions, equal or unequal, into which 
anything is divided, or regarded as divided; something 
less than a whole; a number, quantity, mass, or the like, 
regarded as going to make up, with others or another, a 
larger number, quantity, mass, etc., whether actually 
separate or not; a piece, fragment, fraction, member or 
constituent. A separate entry in an account or a sched
ule, or a separate particular in an enumeration of a 
total. An "item" in an appropriation is an indivisible 
sum of money dedicated to a stated purpose. Common-

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833 
wealth v. Dodson, 176 Va. 281, 11 S.E.2d 120, 124, 127, 
130, 131. 
For commercial paper purposes, a negotiable or non
negotiable writing for the payment of money that is 
collected through the collection process governed by 
V.C.C. Article 4. V.C.C. § 4-104(1)(g). 
Itemize. To set down by items. To state each item or 
article separately. Vsed commonly with reference to 
tax accounting. 
Itemized deductions. Certain personal expenditures al
lowed by the Internal Revenue Code as deductions from 
adjusted gross income if an individual taxpayer chooses 
not to use the standard deduction and total itemized 
deductions exceed the standard deduction. Examples 
include certain medical expenses, interest on home 
mortgages, state income taxes, and charitable contribu
tions. 
Iter /ayt�r/. Lat. In the civil law, a way; a right of way 
belonging as a servitude to an estate in the country 
(prredium rusticum). The right of way was of three 
kinds: (1) iter, a right to walk, or ride on horseback, or 
in a litter; (2) actus, a right to drive a beast or vehicle; 
(3) via, a full right of way, comprising right to walk or 
ride, or drive beast or carriage. Or, as some think, they 
were distinguished by the width of the objects which 
could be rightfully carried over the way; e.g., via, 8 feet; 
actus, 4 feet, etc. 
In old English law, a journey, especially a circuit 
made by a justice in eyre, or itinerant justice, to try 
causes according to his own mission. 
In maritime law, a way or route. The route or di
rection of a voyage; the route or way that is taken to 
make the voyage assured. Distinguished from the voy
age itself. 
IUS COGENS 
Iteratio lit�reysh(iy )ow / . Lat. Repetition. In the Ro
man law, a bonitary owner might liberate a slave, and 
the quiritary owner's repetition (iteratio) of the process 
effected a complete manumission. 
Iter est jus eundi, ambulandi hominis; non etiam 
jumentum agendi vel vehiculum / ayt�r est j�s 
iy�nday, remby�lrenday h6m�n�s, non iysh(iy)�m 
j�ment�m �jenday vel v�hik(y)�l�m/. A way is the right 
of going or walking, and does not include the right of 
driving a beast of burden or a carriage. 
Itinera / aytin�r�/. Eyres, or circuits. 
Itinerant. Wandering or traveling from place to place; 
formerly applied to justices who made circuits. Also 
applied in various statutory and municipal laws (in the 
sense of traveling from place to place) to certain classes 
of merchants, traders, and salesmen. 
Itinerant peddling. The going about of a merchant 
from place to place, meeting and dealing with his cus
tomers where he finds them. Good Humor Corporation 
v. City of New York, 264 App.Div. 620, 36 N.Y.S.2d 85, 
91. See Hawker. 
Itinerant vendor. This term is variously defined in 
statutes; e.g., a person engaged in transient business 
either in one locality or in traveling from place to place 
selling goods. See also Hawker; Peddler. 
Ius cogens. A peremptory norm of general internation
al law. For the purposes of the present convention, a 
peremptory norm of general international law is a norm 
accepted and recognized by the international community 
of states as a whole as a norm from which no derogation 
is permitted and which can be modified only by a 
subsequent norm of general international law having 
the same character. (cf. Vienna Convention on the Law 
of Treaties, 1958, Article 53.)

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J 
J. The initial letter of the words "judge" and "justice," 
for which it frequently stands as an abbreviation. Thus, 
"J.A.," judge advocate; "J. J.," junior judge; "L.J.," law 
judge; "A.L.J.," administrative law judge; "P.J.," presi
dent judge; "F.J.," first judge; "A.J.," associate judge; 
"C.J.," chief justice or judge; "J.P.," justice of the peace; 
"JJ.," judges or justices; "J.C.P.," justice of the common 
pleas; "J.K.B.," justice of the king's bench; "J.Q.B.," 
justice of the queen's bench; "J. U.B.," justice of the 
upper bench. 
Jac. An abbreviation for "Jacobus': the Latin form of 
the name James; used principally in citing statutes 
enacted in the reigns of the English kings of that name; 
e.g., "St. 1, Jac. II." 
Jacens /jeys:mz/. Lat. Lying in abeyance, as in the 
phrase "hcereditas jacens': which is an inheritance or 
estate lying vacant or in abeyance prior to the ascertain
ment of the heir or his assumption of the succession. 
Jacens hrereditas /jeys:mz h;)riyd;)tres/. See Hrereditas 
jacens. 
Jacobus /j;)k6wb;)s/. A gold coin an inch and three
eighths in diameter, in value about twenty-five shill
ings, so called from James I., in whose reign it was first 
coined. It was also called broad, laurel, and broad-piece. 
Its value is sometimes put at twenty-four shillings, but 
Macaulay speaks of a salary of eight thousand Jacobuses 
as equivalent to ten thousand pounds sterling. 
Jactitation /jrekt;)teysh;)n/. Boasting of something 
which is challenged by another. A false boasting; a 
false claim; assertions repeated to the prejudice of an
other's right. 
The species of defamation or disparagement of anoth
er's title to real estate known at common law as "slan
der of title" comes under the head of jactitation, and in 
some jurisdictions (as in Louisiana) a remedy for this 
injury is provided under the name of an "action of 
jactitation." 
Jactitation of marriage. In English ecclesiastical law, 
the boasting or giving out by a party that he or she is 
married to some other, whereby a common reputation of 
their matrimony may ensue. To defeat that result, the 
person may be put to a proof of the actual marriage, 
failing which proof, he or she is put to silence about it. 
3 BLComm. 93. The High Court has jurisdiction over 
such actions. 
Jactitation of tithes. In English ecclesiastical law, the 
boasting by a man that he is entitled to certain tithes, to 
which he has legally no title. 
Jactivus /jrektayv;)s/. Lost by default; tossed away. 
Jactura /jrekt(y)ur;)/. In the civil law, a throwing of 
goods overboard in a storm; jettison. Loss from such a 
cause. 
Jactus /jrekt;)s/. A throwing of goods overboard to light
en or save the vessel, in which case the goods so sacri
ficed are a proper subject for general average. See 
Jettison. 
Jactus lapilli /jrekt;)s l;)pilay/. The throwing down of a 
stone. One of the modes, under the civil law, of inter
rupting prescription. Where one person was building on 
another's ground, and in this way acquiring a right by 
usucapio, the true owner challenged the intrusion and 
interrupted the prescriptive right by throwing down one 
of the stones of the building before witnesses called for 
the purpose. 
J.A.G. Judge Advocate General. 
Jail. A gaol; a prison. A building designated by law, or 
regularly used, for the confinement of persons held in 
lawful custody. A place of confinement that is more 
than a police station lockup and less than a prison. It is 
usually used to hold persons either convicted of misde
meanors (minor crimes) or persons awaiting trial or as a 
lockup for intoxicated and disorderly persons. See also 
Gaol; Lockup; Prison. 
Jail credit. Refers to time spent by criminal defendant 
in confinement awaiting trial that will be deducted from 
his or her final sentence. 
Jail delivery. See Gaol. 
Jailer. A keeper or warden of a prison or jail. 
Jailhouse lawyer. Inmate of a penal institution who 
spends his time reading the law and giving legal assist
ance and advice to inmates, especially to those who are 
illiterate. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 
21 L.Ed.2d 718. 
Jail liberties. See Gaol. 
Jamunlingi, jamundilingi. Freemen who delivered 
themselves and property to the protection of a more 
powerful person, in order to avoid military service and 
other burdens. Also a species of serfs among the Ger
mans. The same as commendati. 
Janus-faced. An argument looking in both directions at 
the same time, e.g., urging jurors not to be swayed by 
sympathy, but adding that any sympathy should be in 
favor of the arguing counsel's client. Davis v. Franson, 
141 CaLApp.2d 263, 296 P.2d 600, 606. 
834

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835 
Jaques. In old English law, small money. 
Jason clause. Clause in bills of lading which obligates 
cargo owners to contribute in general average in cases of 
danger, damage, or disaster resulting from faults or 
errors in navigation or in management of vessel, her 
machinery or appurtenances, provided that shipowner 
shall have exercised due diligence to make vessel in all 
respects seaworthy, and to have her properly manned, 
equipped, and supplied. Merklen v. Johnson & Higgi ns, 
D.C.N.Y., 3 F.Supp. 897, 898. 
Javelin-men Ijrev(a)l:mmEm/. In old English law, yeo
men retained by the sheriff to escort the judge of assize. 
Jay walking. Proceeding diagonally across a street 
intersection. Also, crossing a street between intersec
tions, or at a place other than a crosswalk. 
J.D. Short for "Juris Doctor" or "Doctor of Jurispru
dence." This is now the basic law degree, replacing the 
"LL.B." in the late 1960's. 
Jedburgh justice Ijedbara j;}stas/. Summary justice in
flicted upon a marauder or felon without a regular trial, 
equivalent to "lynch law." So called from a Scotch 
town, near the English border, where raiders and cattle 
lifters were often summarily hung. Also written "Jed
dart" Ijedartl or "Jedwood" Ijedwadl justice. 
Jencks Act or Rule. A criminal defendant in a Federal 
Court is entitled to access to government documents for 
assistance in cross-examination of witnesses in order to 
impeach for prior inconsistent statements. Jencks v. U. 
S., 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. Follow
ing this case, a federal statute was enacted to the same 
effect; 18 U.S.C.A. § 3500. See also Fed.R.Crim.P. 26.2. 
Jeofaile Ijefeyll. L. Fr. I have failed; I am in error. 
An error or oversight in pleading. 
Jeopardy. Danger; hazard; peril. 
The danger of conviction and punishment which the 
defendant in a criminal action incurs when a valid 
indictment has been found, and a petit jury has been 
impaneled and sworn to try the case and give a verdict 
in a court of competent jurisdiction. Hanley v. State, 83 
Nev. 461, 434 P.2d 440, 442. The condition of a person 
when he is put upon trial, before a court of competent 
jurisdiction, upon an indictment or information which is 
sufficient in form and substance to sustain a conviction, 
and a jury has been charged with his deliverance. For 
purpose of constitutional prohibition against double 
jeopardy, a court proceeding which may result in incar
ceration places a person, adult or juvenile, in "jeopar
dy." Fain v. Duff, C.A.Fla., 488 F.2d 218, 225. 
The terms "jeopardy of life and liberty for the same 
offense," "jeopardy of life or limb," "jeopardy for the 
same offense," "in jeopardy of punishment," and other 
similar provisions used in the various constitutions, are 
to be construed as meaning substantially the same 
thing. 
See also Double jeopardy; Former jeopardy; Legal jeop
ardy. 
JOCUS PARTITUS 
Jeopardy assessment. If the Internal Revenue Service 
believes that the collection of a tax deficiency is in 
jeopardy due to delay, the IRS may assess and collect 
the tax immediately and without the usual formalities. 
I.R.C. § 6861. 
Jetsam Ijetsam/. Goods which, by the act of the owner, 
have been voluntarily cast overboard from a vessel, in a 
storm or other emergency, to lighten the ship. See also 
Jactus; Jettison. 
Jettison Ijedasan/. The act of throwing overboard from 
a vessel part of the cargo, in case of extreme danger, to 
lighten the ship. The thing or things so cast out; 
jetsam. A carrier by water may, when in case of ex
treme peril it is necessary for the safety of the ship or 
cargo, throw overboard, or otherwise sacrifice, any or all 
of the cargo or appurtenances of the ship. Throwing 
property overboard for such purpose is called "jettison," 
and the loss incurred thereby is called a "general aver
age loss." See also Jactus; Jetsam. 
Jetty. A projection of stone or other material serving as 
a protection against the waves. 
Jeux de bourse Izhuw da burs/. Fr. In French law, 
speculation in the public funds or in stocks; gambling 
speculations on the stock exchange; dealings in "op
tions" and "futures." 
A kind of gambling or speculation, which consists of 
sales and purchases which bind neither of the parties to 
deliver the things which are the object of the sale, and 
which are settled by paying the difference in the value 
of the things sold between the day of the sale and that 
appointed for delivery of such things. 
J.N.O.V., Abr. Judgment non obstante veredicto; judg
ment notwithstanding verdict. See Non obstante vere
dicto. 
Job. The whole of a thing which is to be done. A 
specific task or piece of work to be done for a set fee or 
compensation. Employment position. Criminal act (e.g. 
robbery). 
Jobber. One who buys and sells goods for others. One 
who buys or sells on the stock exchange; a dealer in 
stocks, shares, or securities. One who buys and sells 
articles in bulk and resells them to dealers. A mer
chant buying and selling in job lots. In general, a 
middleman in the sale of goods; one who buys from a 
wholesaler and sells to a retailer. Person who does 
piecework. See also Agent; Broker; Factor; Middleman; 
Wholesaler. 
Jocelet Ijos(a)lat/. A little manor or farm. 
Jocus Ijowkas/. In old English law, a game of hazard. 
Jocus partitus Ijowkas partadas/. In old English prac-
tice, a divided game, risk, or hazard. An arrangement 
which the parties to a suit were anciently sometimes 
allowed to make by mutual agreement upon a certain 
hazard, as that one should lose if the case turned out in 
a certain way, and, if it did not, that the other should 
gain.

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JOHN DOE 
John Doe. A fictitious name frequently used to indicate 
a person for the purpose of argument or illustration, or 
in the course of enforcing a fiction in the law. The 
name which was usually given to the fictitious lessee of 
the plaintiff in the mixed action of ejectment. He was 
sometimes called "Goodtitle." So the Romans had their 
fictitious personages in law proceedings, as Titius, Seius. 
The name "John Doe" is, and for some centuries has 
been, used in legal proceedings as a fictitious name to 
designate a party until his real name can be ascertained. 
State v. Rossignol, 22 Wash.2d 19, 153 P.2d 882, 885. 
When "John Doe" is used in a search warrant, case 
report, textbook, or other legal document, it refers to an 
unknown or nonexistent person. Garner v. State, 220 
Tenn. 680, 423 S. W .2d 480, 482. 
John Doe summons. A summons used when the defen
dant's name is unknown and which is therefore made 
out to John Doe. After the true name of the defendant 
is known, it is substituted. 
Join. To unite; to come together; to combine or unite in 
time, effort, action; to enter into an alliance. 
Joinder. Joining or coupling together; uniting two or 
more constituents or elements in one; uniting with 
another person in some legal step or proceeding; union; 
concurrence. 
The consent to an agreement or document by a party 
who has an interest in the subject matter of the agree
ment or document, but who is not himself an active 
party to the agreement or document. 
Collusive joinder. The joinder of a defendant, common
ly a nonresident, for purpose of removal to or conferring 
jurisdiction on a Federal Court. Bentley v. Halliburton 
Oil Well Cementing Co., D.C.Tex., 174 F.2d 788, 791. 
Compulsory joinder. A person must be joined in an 
action if complete relief cannot be afforded the parties 
without his joinder or if his interest is such that grave 
injustice will be done without him. Fed.R.Civ.P. 19(a). 
See Joinder of parties, below. 
Joinder in demurrer. In common law pleading, when a 
defendant in an action tenders an issue of law (called a 
"demurrer"), the plaintiff, if he means to maintain his 
action, must accept it, and this acceptance of the defen
dant's tender, signified by the plaintiff in a set form of 
words, is called a "joinder in demurrer." 
Joinder in issue. In common law pleading, a formula by 
which one of the parties to a suit joins in or accepts an 
issue in fact tendered by the opposite party. Also called 
"similiter". 
Joinder in pleading. In common law pleading, accept
ing the issue, and mode of trial tendered, either by 
demurrer, error, or issue, in fact, by the opposite party. 
Joinder of claims. Under rules practice, a party assert
ing a claim to relief as an original claim, counterclaim, 
cross claim or third party claim may join as many 
claims as he has against an opposing party whether they 
are legal or equitable. Fed.R.Civ.P. 18(a); New York 
C.P.L.R. § 60 1. 
836 
Joinder of defendants. Two or more defendants may be 
charged in the same indictment or information if they 
are alleged to have participated in the same act or 
transaction or in the same series of acts or transactions 
constituting an offense or offenses. Such defendants 
may be charged in one or more counts together or 
separately and all of the defendants need not be charged 
in each count. Fed.R.Crim.Proc. 8(b). 
Joinder of error. In proceedings on a writ of error in 
criminal cases, the joinder of error is a written denial of 
the errors alleged in the assignment of errors. It an
swers to a joinder of issue in an action. 
Joinder of indictments or informations. The court may 
order two or more indictments or informations or both 
to be tried together if the offenses, and the defendants if 
there is more than one, could have been joined in a 
single indictment or information. The procedure shall 
be the same as if the prosecution were such single 
indictment or information. Fed.R.Crim.P. 13. 
Joinder of issue. The act by which the parties to a cause 
arrive at that stage of it in their pleadings, that one 
asserts a fact to be so, and the other denies it. 
Joinder of offenses. Two or more offenses may be 
charged in the same indictment or information in a 
separate count for each offense if the offenses charged, 
whether felonies or misdemeanors or both, are of the 
same or similar character or are based on the same act 
or transaction or on two or more acts or transactions 
connected together or constituting parts of a common 
scheme or plan. Fed.R. Crim.Proc . 8(a). 
Joinder of parties. The act of uniting as parties to an 
action all persons who have the same rights or against 
whom rights are claimed, as either co-plaintiffs or co-de
fendants. Fed.R. Civil P. 19 and 20. 
Necessary and indispensible parties. Prior to 1966 the 
federal, and most state, courts used classifications to 
determine if a person should or must be joined in an 
action. The label "indispensible" was used if the con
nection to the action of the absentee party was so close 
that the action should be dismissed unless the party 
was joined. The label "necessary" was used if the 
party was one who ought to be joined if this was 
possible. These classifications proved unsatisfactory 
and in 1966 Fed.Rule of Civil Proc. 19 was replaced 
with a new Rule 19, "Joinder of Persons needed for 
Just Adjudication." Rule 19(a) defines the class of 
persons who are needed for just adjudication. If an 
absentee meets this test, and is subject to process, the 
court must require that he be joined. If the absentee is 
needed for just adjudication and is not subject to pro
cess, Rule 19(b) states the factors to be considered in 
deciding whether to proceed in his absence or to dis
miss the action. 
Proper parties. If a party has some relation to the 
action, but it is not so close as to make him a person 
needed for just adjudication within Rule of Civil Proc. 
19(a), he is a "proper" party, and the plaintiff has an 
option whether to join him if the tests of Rule 20 are 
met.

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887 
Joinder of remedies. Whenever a claim is one thereto
fore cognizable only after another claim has been prose
cuted to a conclusion, the two claims may be joined in a 
single action; but the court will grant relief in that 
action only in accordance with the relative substantive 
rights of the parties. In particular, a plaintiff may state 
a claim for money and a claim to have set aside a 
conveyance fraudulent as to him, without first having 
obtained a judgment establishing the claim for money. 
Fed.R.Civ.P. 18(b). 
Misjoinder. The improper joining together of parties to 
a suit, as plaintiffs or defendants, or of different causes 
of action. Mis joinder, however, is not a ground for 
dismissal. The improper party is merely dropped on 
motion of any party or on courts own motion. Fed.R. 
Civil P. 21. Relief from prejudicial joinder of offenses or 
defendants in an indictment or information is permitted 
under Fed.R.Crim.P. 14. 
Misjoinder in a criminal prosecution is the charging in 
separate counts of separate and distinct offenses arising 
out of wholly different transactions having no connec
tion or relation with each other. Optner v. U. S., 
C.C.A.Mich., 13 F.2d 11 , 13. 
Nonjoinder. The omission to join some person as party 
to a suit, whether as plaintiff or defendant, who ought to 
have been so joined. An omitted party may be added on 
motion of any party or on courts own motion. Fed.R. 
Civil P. 21. 
Permissive joinder. All persons may join in one action 
as plaintiffs if they assert any right to relief jointly, 
severally, or in the alternative in respect of or arising 
out of the same transaction, occurrence, or series of 
transactions or occurrences and if any question of law or 
fact common to all these persons will arise in the action. 
All persons (and any vessel, cargo or other property 
subject to admiralty process in rem) may be joined in 
one action as defendants if there is asserted against 
them jointly, severally, or in the alternative, any right 
to relief in respect of or arising out of the same transac
tion, occurrence, or series of transactions or occurrences 
and if any questions of law or fact common to all 
defendants will arise in the action. A plaintiff or defen
dant need not be interested in obtaining or defending 
against all the relief demanded. Judgment may be 
given for one or more of the plaintiffs according to their 
respective rights to relief, and against one or more 
defendants according to their respective liabilities. Fed. 
R.Civ.P. 20(a). 
Joint. United; combined; undivided; done by or against 
two or more unitedly; shared by or between two or 
more; coupled together in interest or liability. 
The term is used to express a common property inter
est enjoyed or a common liability incurred by two or 
more persons. Thus, it is one in which the obligors 
(being two or more in number) bind themselves jointly 
but not severally, and which must therefore be prose
cuted in a joint action against them all; distinguished 
from "joint and several" obligation. 
JOINT AUTHORSHIP 
As to joint Annuity; Ballot; Committee; Contract; Cov
enant; Creditor; Custody; Fiat; Fine; Indictment; Obli
gation; Obligee; Obligor; Owner; Rate; Resolution; Ses
sion; Tenancy; Tenant; Trespass; Trespasser; Trustee; 
Will, see those titles. As to joint-stock banks, see Bank; 
joint-stock company, see Company; joint-stock corpora
tion, see Corporation. 
Joint account. An account (e.g. bank or brokerage 
account) in two or more names. Harbour v. Harbour, 
207 Ark. 551, 181 S.W.2d 805, 807. 
Joint action. An action brought by two or more as 
plaintiffs or against two or more as defendants. See 
Joinder. 
Joint adventure. Any association of persons to carry 
out a single business enterprise for profit, for which 
purpose they combine their property, money, effects, 
skill, and knowledge. A "joint adventure" exists where 
there is a special combination of two or more persons 
jointly seeking to profit in some specific venture without 
actual partnership or corporate designation; it is an 
association of persons to carry out a single business 
enterprise for profit, for which purpose they combine 
their property, money, effects, skill, and knowledge. 
Fulton v. Fulton, Mo.App., 528 S.W.2d 146, 155. See 
also Comm unity of interest; Joint enterprise; Joint ven
ture. 
Joint and several contracts. Contracts in which the 
parties bind themselves both individually and as a unit 
(jointly). 
Joint and several liability. Describes the liability of 
copromisors of the same performance when each of 
them, individually, has the duty of fully performing the 
obligation, and the obligee can sue all or any of them 
upon breach of performance. A liability is said to be 
joint and several when the creditor may demand pay
ment or sue one or more of the parties to such liability 
separately, or all of them together at his option. A joint 
and several bond or note is one in which the obligors or 
makers bind themselves both jointly and individually to 
the obligee or payee, so that all may be sued together for 
its enforcement, or the creditor may select one or more 
as the object of his suit. 
Term also refers to the liability of joint tortfeasors 
(i.e., liability that an individual or business either shares 
with other tortfeasors or bears individually without the 
others). See Contribution; Indemnity; Joint liability; Joint 
tort-feasors; Liability. 
Such liability permits the Internal Revenue Service to 
collect a tax from one or all of several taxpayers. A 
husband and wife that file a joint income tax return 
usually are collectively or individually liable for the full 
amount of the tax liability. I.R.C. § 6013. 
Joint authorship. As to literary property, such exists 
where there is a common design to the execution of 
which several persons contribute. Mere alterations, ad
ditions or improvements, whether with or without the 
sanction of the author, will not entitle the person mak
ing them to claim to be a joint author of the work.

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JOINT AUTHORSHIP 
Joint labor in furtherance of a common design. Edward 
B. Marks Music Corporation v. Jerry Vogel Music Co., 
D.C.N.Y., 140 F.2d 266, 267. 
Joint bank account. An account in the names of two or 
more persons who have equal right to it, generally with 
the right of survivorship. 
Joint cause of action. See Joinder. 
Joint debtors. Persons united in a joint liability or 
indebtedness. Two or more persons jointly liable for the 
same debt. 
Joint debtors' acts. Statutes enacted in many of the 
states, which provide that judgment may be given for or 
against one or more of several defendants, and that, <tin 
an action against several defendants, the court may, in 
its discretion, render judgment against one or more of 
them, leaving the action to proceed against the others, 
whenever a several judgment is proper". The name is 
also given to statutes providing that where an action is 
instituted against two or more defendants upon an al
leged joint liability, and some of them are served with 
process, but jurisdiction is not obtained over the others, 
the plaintiff may still proceed to trial against those who 
are before the court, and, if he recovers, may have 
judgment against all of the defendants whom he shows 
to be jointly liable. Hall v. Lanning, 91 U.S. 160, 168, 
23 L.Ed. 271. 
Joint defendants. Persons who are sued and tried 
together. In criminal law, persons who are indicted for 
the same crime and tried together. See Joinder; Trial. 
Joint defense doctrine. This doctrine generally allows 
defendant to assert attorney-client privilege to protect 
his statements made in confidence not to his own law
yer, but to attorney for codefendant for common purpose 
related to defense of both. U.S. v. Keplinger, C.A.Ill., 
776 F.2d 678, 701. 
Joint enterprise. Also called <tcommon enterprise". 
The joint prosecution of common purpose under such 
circumstances that each has authority express or im
plied to act for all in respect to the control, means or 
agencies employed to execute such common purpose. 
The necessary elements are: (1) an agreement among 
the group's members, either express or implied; (2) a 
common purpose that the group intends to carry out; (3) 
community of pecuniary interest among members of the 
group in that purpose; and (4) an equal right to a voice 
in control and direction of the enterprise which gives an 
equal right of control. Fredrickson v. Kluever, 82 S.D. 
579, 152 N.W.2d 346, 348. See also Joint adventure; 
Joint venture. 
Joint estate. Joint estate involves unity of interest, 
unity of title, unity of time, and unity of possession, and 
joint tenants must have the same interest accruing 
under the same conveyance, commencing at the same 
time, and held under the same undivided possession. 
Mosser v. Dolsay, 132 N.J.Eq. 121, 27 A.2d 155. See also 
Joint tenancy. 
Joint executors. Co-executors; two or more who are 
joined in the execution of a will. See also Co-executor. 
838 
Joint feasors in pari delicto /joynt fiyz�rz in peray 
d�liktow /. Phrase means as between persons who by 
concert of action intentionally commit the wrong com
plained of; there is no right of contribution. Commer
cial Cas. Ins. Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 
919, 920. 
Joint indictment. See Indictment. 
Joint inventions. Such as are made when two or more 
persons jointly work or collaborate in devising and put
ting into practical f()rm the subject-matter of patent. 
Altoona Publix Theatres v. American Tri-Ergon Corpo
ration, C.C.A.Pa., 72 F.2d 53, 56. 
Jointist. A person established in a definite place of 
business, for the purpose of illegally selling intoxicants. 
One who opens up, conducts, or maintains any place for 
the unlawful sale of intoxicating liquors. 
Joint liability. Liability that is owed to a third party by 
two or more other parties together. One wherein joint 
obligor has right to insist that co-obligor be joined as a 
codefendant with him, that is, that they be sued jointly. 
Schram v. Perkins, D.C.Mich., 38 F.Supp. 404, 407. See 
Contribution; Indemnity; Joinder; Joint and several liabili
ty; Joint tort-feasors; Liability. 
Joint lives. This expression is used to designate the 
duration of an estate or right which is granted to two or 
more persons to be enjoyed so long as they both (or all) 
shall live. As soon as one dies, the interest determines. 
Jointly. Unitedly, combined or joined together in unity 
of interest or liability. Soderberg v. Atlantic Lighterage 
Corporation, D.C.N.Y., 15 F.2d 209. In a joint manner; 
in concert; not separately; in con junction. To be or 
become liable to a joint obligation. Creighton v. Conti
nental Roll & Steel Foundry Co., 155 Pa.Super. 165, 38 
A.2d 337, 342. Participated in or used by two or more, 
held or shared in common. 
Jointly acquired property. Property accumulated by 
joint industry of husband and wife during marriage. 
See also Commu nity property. 
Jointly and severally. See Joint and several contracts; 
Joint and several liability. 
Jointly owned property. See Commu nity property; Joint 
bank account; Tenancy. 
Joint negligence. In case of <tjoint negligence" of sever
al people, proximately causing accident, they act togeth
er in concert and either do something together which 
they should not do or fail to do something which they 
are together obligated to do under circumstances. Rus
so v. Aucoin, La.App., 7 So.2d 744, 747. See also Compa
rative negligence; Contribution; Joint tort-feasors; Negli
gence (Contributory negligence). 
Joint offense. One offense committed by two or more 
persons jointly. Crime committed by the participation 
of two or more persons. See Conspiracy. 
Joint ownership. See Tenancy (Joint tenancy). 
Joint possession. Exists where two or more persons 
share actual or constructive possession. Sewell v. U.S., 
C.A.Ark., 406 F.2d 1289, 1293.

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839 
Joint policy. Insurance on lives of spouses, for benefit 
of survivor. O'Boyle v. Home Life Ins. Co. of America, 
D.C.Pa., 20 F.Supp. 33, 36. 
Joint rate. See Joint through rate; Rate. 
Jointress, jointuress. A woman who has an estate 
settled on her by her husband, to hold during her life, if 
she survives him. 
Joint return. See Joint tax return. 
Joint-stock association or company. An unincorporat
ed business enterprise with ownership interests repre
sented by shares of stock. This type enterprise was 
recognized at common law and by statute is generally 
treated as a corporate entity for certain purposes. Such 
entities bear a resemblance to both a corporation and a 
partnership. They appear to be like corporations to the 
extent that they have capital stock, but are not treated 
as corporations in many jurisdictions. Brocki v. Ameri
can Express Co., C.A.Mich., 279 F.2d 785, 787. 
Joint-stock company. See Joint-stock association or 
company. 
Joint-stock insurance company. See Stock insurance 
company. 
Joint tax return. Tax return filed for federal or state 
taxes by a husband and wife together and each is 
individually liable. Such return includes the income of 
both spouses, though one spouse need not have any 
income. It is usually more beneficial from a tax stand
point for spouses to file a joint return than as "married 
filing separately". 
Joint tenancy. See Tenancy. 
Joint through rate. Transportation charge applicable 
from a point on one transportation line to a point on 
another transportation line. Occurs when freight is to 
be shipped to its destination by more than one carrier. 
Joint tort. Where two or more persons owe to another 
the same duty and by their common neglect such other 
is injured, the tort is "joint." See Contribution; Joint 
negligence; Joint tort-teasors. 
Joint tort-feasors. Term refers to two or more persons 
jointly or severally liable in tort for the same injury to 
person or property. American Tobacco Co. v. Transport 
Corp., D.C.Va., 277 F.Supp. 457, 461. Those persons 
who have acted in concert in their tortious conduct and 
are, accordingly, jointly and severally liable. Those who 
act together in committing wrong, or whose acts if 
independent of each other, unite in causing single inju
ry. Bowen v. Iowa Nat. Mut. Ins. Co., 270 N.C. 486, 155 
S.E.2d 238, 242. Several states have adopted the Uni
form Contribution Among Tortfeasors Act. See also 
Contribution. 
Joint trial. The trial of two or more persons for the 
same or similar offenses conducted within the frame
work of one trial. See also Joinder; Trial. 
Jointure. A freehold estate in lands or tenements se
cured to the wife, and to take effect on the decease of 
the husband, and to continue during her life at the least, 
unless she be herself the cause of its determination. 
JOUR IN COURT 
Property provision for wife, made prior to marriage, in 
lieu of dower. 
Joint venture. A legal entity in the nature of a partner
ship engaged in the joint undertaking of a particular 
transaction for mutual profit. Tex-Co Grain Co. v. Hap
py Wheat Growers, Inc., Tex.Civ.App., 542 S.W.2d 934, 
936. An association of persons or companies jointly 
undertaking some commercial enterprise; generally all 
contribute assets and share risks. It requires a commu
nity of interest in the performance of the subject matter, 
a right to direct and govern the policy in connection 
therewith, and duty, which may be altered by agree
ment, to share both in profit and losses. Russell v. 
Klein, 33 Ill.App.3d 1005, 339 N.E.2d 510, 512. 
A one-time grouping of two or more persons in a 
business undertaking. Unlike a partnership, a joint 
venture does not entail a continuing relationship among 
the parties. A joint venture is. treated like a partner
ship for Federal income tax purposes. I.R.C. § 7701(a). 
See also Comm unity ot interest; Joint adventure; Joint 
enterprise. Compare Corporation; Partnership. 
Joint venture corporation. See Corporation. 
Joint verdict. Jury verdict covering more than one 
party to the action and combining two or more verdicts 
in one. See also Verdict. 
Joint will. See Will. 
Joint work. In copyright law, a "joint work" is a work 
prepared by two or more authors with the intention that 
their contributions be merged into inseparable or inter
dependent parts of a unitary whole. Copyright Act, 17 
U.S.C.A. § 101. 
Joker. In political usage, a clause in legislation that is 
ambiguous or apparently immaterial, inserted to render 
it inoperative or uncertain without arousing opposition 
at the time of passage. 
Jones Act. Federal statute passed in 1920 which pro
vides that a seaman injured in the course of his employ
ment by the negligence of the owner, master or fellow 
crew members can recover damages for his injuries. 46 
U.S.C.A. § 688. Similar remedies are available under 
the Act to the personal representative of a seaman 
killed in the course of his employment. See also Long
shore and Harbor Workers' Compensation Act. 
Jornale Ijorneyliy/juro/. In old English law, as much 
land as could be plowed in one day. 
Josh. To ridicule or tease, or make fun of in a joke, to 
lure or tease by misrepresenting the facts. 
Jouir Izhuwir/. A French word, meaning to enjoy; to 
have enjoyment of; or to possess. 
Jour Izhur/jur/. A French word, signifying "day." 
Jour en banc Ijur :m brel)k/. A day in bane. Distin
guished from "jour en pays" (a day in the country), 
otherwise called "jour en nisi prius. " 
Jour in court Ijur �n kart/. In old practice, day in 
court; day to appear in court; appearance day. "Every 
process gives the defendant a day in court."

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JOURNAL 
Journal. A daily book; a book in which entries are 
made or events recorded from day to day. The place 
where transactions are recorded as they occur. The 
book of original entry. 
In maritime law, the journal (otherwise called "log" or 
"log-book") is a book kept on every vessel, which con
tains a brief record of the events and occurrences of 
each day of a voyage, with the nautical observations, 
course of the ship, account of the weather, etc. In the 
system of double-entry bookkeeping, the journal is an 
account-book -into which are transcribed, daily or at 
other intervals, the items entered upon the day-book, for 
more convenient posting into the ledger. In the usage 
of legislative bodies, the journal is a daily record of the 
proceedings of either house. It is kept by the clerk, and 
in it are entered the appointments and actions of com
mittees, introduction of bills, motions, votes, resolutions, 
etc., in the order of their occurrence. 
Journal entry. A recording in an accounting journal of 
equal debits and credits, with, when necessary, an expla
nation of the transaction. 
Journal entry rule. Regularity of enactment of statute 
may be inquired into by examining legislative journals. 
Journalists' privilege. In the law of defamation, a 
publisher is protected in actions of defamation if the 
publication constitutes fair comment on the subject of 
public officers and employees in matters of public con
cern. Such privilege is qualified and hence is lost on 
proof of malice which, in this context, consists in pub
lishing material either knowing it to be false or heedless 
in the reckless disregard of whether it is true or false 
when, in fact, it is false. New York Times Co. v. 
)Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. See 
also Libel; Shield laws. 
Journeyman. A craftsman who has progressed through 
an apprenticeship and is qualified in his trade. 
Journeys account. In English practice, a new writ 
which the plaintiff was permitted to sue out within a 
reasonable time after the abatement, without his fault, 
of the first writ. This time was computed with refer
ence to the number of days which the plaintiff must 
spend in journeying to reach the court; hence the name 
of journeys account, that is, journeys accomptes or count
ed. 
Joyriding. The temporary taking of an automobile 
without intent to deprive owner permanently of the 
vehicle. People v. Rivera, 185 Colo. 337, 524 P.2d 1082, 
1083. Called in some jurisdictions the crime of use of 
motor vehicle without authority which is commonly a 
misdemeanor in contrast to larceny of motor vehicle 
which is a more serious offense. 
J.P. Justice of the Peace. 
Jubere Ij�biriy/. Lat. In the civil law, to order, direct, 
or command. The word jubeo (I order), in a will, was 
called a "word of direction," as distinguished from "prec
atory words." To assure or promise. To decree or pass 
a law. 
840 
Judex Ijuwdeks/. Lat. In Roman law, a private person 
appointed by the prretor, with the consent of the parties, 
to try and decide a cause of action commenced before 
him. He received from the prretor a written formula 
instructing him as to the legal principles according to 
which the action was to be judged. Hence the proceed
ings before him were said to be in judicio, as those 
before the prretor were said to be in jure. A judge who 
conducted the trial from beginning to end; magistratus. 
The practice of calling in judices was disused before 
Justinian's time: therefore, in the Code, Institutes, and 
Novels, judex means judge in its modern sense. The 
term judex is used with very different significations at 
different periods of Roman law. 
In later and modern civil law, a judge. 
In old English law, a juror. A judge, in modern sense, 
especially-as opposed to justiciarius, i.e., a common-law 
judge-to denote an ecclesiastical judge. 
Judex ad quem Ijuwdeks red kwem/. A judge to whom 
an appeal is taken. 
Judex requitatem semper spectare debet Ijuwdeks 
iykw�teyt�m semp�r spekteriy deb�t/. A judge ought 
always to regard equity. 
Judex ante oculos requitatem semper habere debet 
Ijuwdeks rentiy oky�lows iykw�teyt�m semp�r h�biriy 
deb�t/. A judge ought always to have equity before his 
eyes. 
Judex a quo Ijuwdeks ey kwow/. In civil law, the judge 
from whom, as judex ad quem is the judge to whom, an 
appeal is made or taken. 
Judex bonus nihil ex arbitrio suo faciat, nec proposi· 
to domesticre voluntatis, sed juxta leges et jura 
pronunciet Ijuwdeks bown�s nay(h)�l eks arbitriyow 
s(y)uwow feysh(iy)�t, nek pr�poz�tow d�mest�siy 
vobnteyt�s, sed jukst� liyjiyz et jur� pr�n�nshiy�t/. A 
good judge should do nothing of his own arbitrary will, 
nor on the dictate of his personal inclination, but should 
decide according to law �nd justice. 
Judex damnatur cum nocens absolvitur Ijuwdeks 
dremneyt�r k�m nos�nz �bzolv�t�r/. The judge is con
demned when a guilty person escapes punishment. 
Judex datus Ijuwdeks deyt�s/. In Roman law, a judge 
given, that is, assigned or appointed, by the prretor to try 
a cause. 
Judex debet judicare secundum allegata et probata 
Ijuwdeks deb�t juwd�keriy s�k�nd�m rel�geyt� et 
pr�beyt�1 . The judge ought to decide according to the 
allegations and the proofs. 
Judex delegatus Ijuwdeks debgeyt �s/. A delegated 
judge; a special judge. 
Judex est lex loquens Ijuwdeks est leks lowkwenz/. A 
judge is the law speaking [the mouth of the law]. 
Judex fiscalis Ijuwdeks f�skeybs /. A fiscal judge; one 
having cognizance of matters relating to the fiscus (q.v.). 
Judex habere debet duos sales,-salem sapientire, ne 
sit insipidus; et salem conscientire, ne sit diabolus

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841 
Ijudeks h;}biriy deb;}t d(y)uwows seyliyz: seybm 
srepiyenshiyiy niy sid ;}nsip;}d;}s et seybm kon
s(h)iyenshiyiy, niy sit diyreb;}l;}s/. A judge should have 
two salts,-the salt of wisdom, lest he be insipid [or 
foolish]; and the salt of conscience, lest he be devilish. 
Judex non potest esse testis in propria causa 
Ijuwdeks non powt;}st esiy test;}s in prowpriy;} koz;} I . A 
judge cannot be a witness in his own cause. 
Judex non potest injuriam sibi datam punire 
Ijuwdeks non powt;}st ;}njuriy;}m sway deyt;}m py;}nay
riy I. A judge cannot punish a wrong done to himself. 
Judex non reddit plus quam quod petens ipse requir
it Ijuwdeks non red;}t pl�s kwrem kwod ped;}nz ipsiy 
r;}kwayr;}t/. A judge does not give more than what the 
complaining party himself demands. 
Judex ordinarius Ijuwdeks ord;}ner(i)y;}s/. In the civil 
law, an ordinary judge; one who had the right of hear
ing and determining causes as a matter of his own 
proper jurisdiction (ex propria jurisdictione), and not by 
virtue of a delegated authority. According to Black
stone judices ordinarii determined only questions of fact. 
3 Bl.Comm. 315. 
Judex pedaneus Ijuwdeks p;}deyniy;}s/. In Roman law, 
inferior judge; deputy judge. The judge who was com
missioned by the prretor to hear a cause was so-called, 
from the low seat which he anciently occupied at the 
foot of the prretor's tribunal. 
Judex qurestionis Ijuwdeks kwes(h)tiyown;}s/. A magis
trate who decided the law of a criminal case, when the 
prretor himself did not sit as a magistrate. The director 
of the criminal court under the presidency of the prretor. 
Judex selectus Ijuwdeks s;}lekt;}s/. A select or selected 
judex or judge. The judges in criminal suits selected by 
the prretor. These judices selecti were used in criminal 
causes, and between them and modern jurors many 
points of resemblance have been noticed; 3 Bl.Comm. 
366. 
Judge. An officer so named in his commission, who 
presides in some court; a public officer, appointed to 
preside and to administer the law in a court of justice; 
the chief member of a court, and charged with the 
control of proceedings and the decision of questions of 
law or discretion. Todd v. V. S., 158 V.S. 278, 15 S.Ct. 
889, 39 L.Ed. 982. A public officer who, by virtue of his 
office, is clothed with judicial authority. State ex reI. 
Mayer v. City of Cincinnati, 60 Ohio App. 119, 19 N.E.2d 
902. Presiding officer of court. State v. Horn, 336 Mo. 
524, 79 S.W.2d 1044, 1045. Any officer authorized to 
function as or for judge in doing specified acts. In re 
Roberts' Estate, 49 Cal.App.2d 71, 120 P.2d 933, 937. 
"Judge", "justice", and "court" are often used synon
ymously or interchangeably. 
See also Magistrate. 
Judge advocate. An officer of the Judge Advocate 
General's Corps of the Army or the Navy or an officer of 
the Air Force or the Marine Corps who is designated as 
a judge advocate. 10 V.S.C.A. § 80 1. 
JUDGMENT 
In American usage, the term "judge advocate" . no 
longer refers to any of the parties involved in a court
martial. Instead, it refers to the principal legal adviser 
on the staff of a military commander (usually with a 
more definitive title, such as Staff Judge Advocate, Post 
Judge Advocate, or Command Judge Advocate) or, more 
broadly, to any officer in the Judge Advocate General's 
Corps or Department (i.e., branch) of one of the V.S. 
armed forces. British usage is different. 
Judge advocate corps. Staff of Judge Advocate Gener
al. 
Judge Advocate General. Senior legal officer and chief 
legal advisor of the Army, Navy, and Air Force and, 
except when the Coast Guard is operating as a service in 
the Navy, the General Counsel of the Department of 
Transportation. 10 V.S.C.A. § 801. 
Judge de facto. One who holds and exercises the office 
of a judge under color of lawful authority and by a title 
valid on its face, though he has not full right to the 
office, as where he was appointed under an unconstitu
tional statute, or by an usurper of the appointing power, 
or has not taken the oath of office. 
Judge-made law. A phrase used to indicate judicial 
decisions which construe away the meaning of statutes, 
or find meanings in them the legislature never intended. 
It is perhaps more commonly used as meaning, simply, 
the law established by judicial precedent and decisions. 
Laws having their source in judicial decisions as opposed 
to laws having their source in statutes or administrative 
regulations. 
Judge pro tempore Ij;}j prow temp;}riy/. One appointed 
for the term or some part thereof, during which time he 
exercises all the functions of the regular judge. State ex 
reI. Hodshire v. Bingham, 218 Ind. 490, 33 N.E.2d 771. 
As opposed to a special judge who is appointed to act in 
a particular case, such judge is appointed to act during 
the absence of the regular judge and exercises all of the 
powers of the regular judge during that period. Sur
vance v. State, Ind., 465 N.E.2d 1076, 1081. 
Judge's minutes, or notes. Memoranda usually taken 
by a judge, while a trial is proceeding, of the testimony 
of witnesses, or documents offered or admitted in evi
dence, of offers of evidence, and whether it has been 
received or rejected, and the like matters. 
Judge trial. Trial conducted before a judge without a 
jury. Jury waived trial; bench trial; non-jury trial. 
Judgment. A sense of knowledge sufficient to compre
hend nature of transaction. Thomas v. Young, 57 App. 
D.C. 282, 22 F.2d 588, 590. An opinion or estimate. 
McClung Const. Co. v. Muncy, Tex.Civ.App., 65 S.W.2d 
786, 790. The formation of an opinion or notion con
cerning some thing by exercising the mind upon it. 
Cleveland Clinic Foundation v. Humphrys, C.C.A.O hio, 
97 F.2d 849, 857. 
The official and authentic decision of a court of justice 
upon the respective rights and claims of the parties to 
an action or suit therein litigated and submitted to its 
determination. The final decision of the court resolving

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JUDGMENT 
the dispute and determining the rights and obligations 
of the parties. The law's last word in a judicial contro
versy, it being the final determination by a court of the 
rights of the parties upon matters submitted to it in an 
action or proceeding. Towley v. King Arthur Rings, 
Inc., 40 N.Y.2d 129, 386 N.Y.S.2d 80, 351 N.E.2d 728, 
730. Conclusion of law upon facts found or admitted by 
the parties or upon their default in the course of the 
suit. Decision or sentence of the law, given by a court of 
justice or other competent tribunal, as the result of 
proceedings instituted therein, Allegheny County v. Ma
ryland Casualty Co., C.C.A.Pa., 132 F.2d 894, 897. Deci
sion or sentence of the law pronounced by the court and 
entered upon its docket, minutes or record. Determina
tion of a court of competent jurisdiction upon matters 
submitted to it. State ex reI. Curran v. Brookes, 142 
Ohio St. 107, 50 N .E.2d 995, 998. Determination or 
sentence of the law, pronounced by a competent judge or 
court, as the result of an action or proceeding instituted 
in such court, affirming that, upon the matters sub
mitted for its decision, a legal duty or liability does or 
does not exist. 
Term "judgment" under rules practice includes "de
cree". Fed.R.Civ.P. 54(a). Terms "decision" and "judg
ment" are commonly used interchangeably. "Sentence" 
and "judgment" are synonymous in criminal action and 
appeal from sentence is same as appeal from judgment. 
People v. Spencer, 71 C.2d 933, 80 CaI.Rptr. 99, 101, 458 
P.2d 43. 
The term "judgment" is also used to denote the reason 
which the court gives for its decision; but this is more 
properly denominated an "opinion." 
An award may be in the nature of, or equivalent of, a 
judgment. Holliday v. Salling, 54 Ariz. 496, 97 P.2d 22 1, 
223. Also, an order may be a judgment. Traders & 
General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837, 
839, 840. 
See also Amendment of judg ment; Decree; Entering 
judg ments; Judg ment in rem; Judgment quasi in rem; 
Rendition of judg ment; Sentence; Simula ted judgme nt; 
Vacation of judgment; Void judgment. 
Specific Types of Judgments 
Agreed judgment. A judgment entered on agreement of 
the parties, which receives the sanction of the court, and 
it constitutes a contract between the parties to the 
agreement, operates as an adjudication between them 
and when court gives the agreement its sanction, be
comes a judgment of the court. Traveler's Ins. Co. v. U. 
S. , D.C.Tex., 283 F.Supp. 14, 28. See also Consent Judg
ment, below. 
Alternative judgment. One that by its terms might be 
satisfied by doing either of several acts at the election of 
the party or parties against whom the judgment is 
rendered and from whom performance is by the judg
ment required. A judgment for one thing or another 
which does not specifically and in a definite manner 
determine the rights of the parties. 
842 
Appealable judgment. One which disposes of all parties 
and issues in case. Chuning v. Calvert, Mo.App., 452 
S.W.2d 580, 582. See also Final judgment, below. 
Arrest of judgment. See Arrest of judgment. 
Assets in fu turo, judgment of One against an executor 
or heir, who holds at the time no property on which it 
can operate. 
Cognovit actionem. See Cognovit actionem. 
Cognovit judgment. See Cognovit judgme nt; also, Confes
sion of judgment, below. 
Conditional judgment. One whose force depends upon 
the performance of certain acts to be done in the future 
by one of the parties; as, one which may become of no 
effect if the defendant appears and pleads according to 
its terms, or one which orders the sale of mortgaged 
property in a foreclosure proceeding unless the mortga
gor shall pay the amount decreed within the time limit
ed. 
Confession of judgment. At common law, judgment 
entered where defendant, instead of entering plea, con
fessed action, or withdrew plea and confessed action. 
Judgment where a defendant gives the plaintiff a cogno
vit or written confession of the action by virtue of which 
the plaintiff enters judgment. The act of a debtor in 
permitting judgment to be entered against him by his 
creditor, for a stipulated sum, by a written statement to 
that effect or by warrant of attorney, without the insti
tution of legal proceedings of any kind; voluntary sub
mission to court's jurisdiction. O'Hara v. Manley, 140 
Pa.Super. 39, 12 A.2d 820, 822. Such agreements for 
confession of judgment are void in many states; e.g. 
Mas s.G.L. c. 231, § 13A. 
The negotiability of an instrument is not affected by a 
term authorizing a confession of judgment if the instru
ment is not paid when due. U.C.C. § 3-112. 
See also Cognovit judgme nt. 
Consent judgment. A judgment, the provisions and 
terms of which are settled and agreed to by the parties 
to the action. Matthews v. Looney, 132 Tex. 313, 123 
S.W.2d 871, 872. See also Decree (Consent decree); and 
Agreed judgment, above. 
Contradictory judgment. A judgment which has been 
given after the parties have been heard, either in sup
port of their claims or in defense. Used in Louisiana to 
distinguish such judgments from those rendered by de
fault. 
Declaratory judgment. See Declaratory judgme nt. 
Default and inquiry, judgment by. It establishes right of 
action of kind properly pleaded in complaint, determines 
right of plaintiff to recover at least nominal damages 
and costs, and precludes defendant from offering any 
evidence on execution of inquiry to show that plaintiff 
has no right of action. Such type judgment is obsolete. 
Default judgment. A judgment rendered in consequence 
of the non-appearance of the defendant. Fed.R. Civil P. 
55(a). One entered upon the failure of a party to appear

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843 
or plead at the appointed time. The term is also applied 
to judgments entered under statutes or rules of court, 
for want of affidavit of defense, plea, answer, and the 
like, or for failure to take some required step in the 
cause. 
Judgments rendered on defendant's default are: Judg
ment by default; Judgment by non sum informatus; 
judgment nil dicit. Judgments rendered on plaintiffs 
default are: Judgment of non pros. (from non prosequi
tur) and judgment of nonsuit (from non sequitur, or ne 
suit pas). 
Deficiency judgment. A judgment in favor of a creditor 
for the difference between the amount of the indebted
ness and the amount derived from the judicial sale held 
in order to satisfy the indebtedness. Cameron Brown 
South, Inc. v. East Glen Oaks, Inc., La.App., 341 So.2d 
450, 456. See also Deficiency judgment. 
De melioribus damnis. See De melioribus damnis. 
Demurrer, judgment on. Such concludes party demur
ring, because by demurring, a party admits the facts 
alleged in the pleadings of his adversary and relies on 
their insufficiency in law. See Demurrer. 
Dismissal, judgment of See Dismissal. 
Domestic judgment. A judgment is domestic in the 
courts of the same state or country where it was origi
nally rendered; in other states or countries it is called 
foreign. See Foreign judgment, below. 
Dormant judgment. One which has not been satisfied or 
extinguished by lapse of time, but which has remained 
so long unexecuted that execution cannot now be issued 
upon it without first reviving the judgment. Or one 
which has lost its lien on land from the failure to issue 
execution on it or take other steps to enforce it within 
the time limited by statute. 
Execution of judgment. See Execution of judgment or 
decree. 
Face of judgment. See Face of judgment. 
Final judgment. One which puts an end to an action at 
law by declaring that the plaintiff either has or has not 
entitled himself to recover the remedy he sues for. So 
distinguished from interlocutory judgments. A judg
ment which disposes of the subject-matter of the contro
versy or determines the litigation as to all parties on its 
merits. A judgment which terminates all litigation on 
the same right. Appeals in federal courts will only lie 
from "final" judgments. 28 UB.C.A. § 1291. See Final 
decision or judgment; Final decision rule. 
Foreign judgment. One rendered by the courts of a 
state or country politically and judicially distinct from 
that where the judgment or its effect is brought in 
question. One pronounced by a tribunal of a foreign 
country, or of a sister state. Grover & B. Sewing Mach. 
Co. v. Radcliffe, 137 U.S. 287, 11 S.Ct. 92, 34 L.Ed. 670. 
Several states have adopted the Uniform Foreign Money 
Judgments Recognition Act, and also the Uniform En
forcement of Foreign Judgments Act. 
JUDGMENT 
General verdict subject to a special case, judgment on. 
Where at the trial the parties agree on the facts and the 
only question is one of law and a verdict pro forma is 
taken and the jury find for the plaintiff generally but 
subject to the opinion of the court on a special case. 
In personam or inter partes judgment. See Personal 
judgment, below; Judg ment in personam or inter partes. 
In rem judgment. See Judgment in rem. 
Interlocutory judgment. One given in the progress of a 
cause upon some plea, proceeding, or default which is 
only intermediate and does not finally determine or 
complete the suit. One which determines some prelimi
nary or subordinate point or plea, or settles some step, 
question, or default arising in the progress of the cause, 
but does not adjudicate the ultimate rights of the par
ties, or finally put the case out of court. Thus, a 
judgment or order passed upon any provisional or acces
sory claim or contention is, in general, merely interlocu
tory, although it may finally dispose of that particular 
matter. An "interlocutory judgment" is one which re
serves or leaves some further question or direction for 
future determination. State ex reI. Great Am. Ins. Co. 
v. Jones, Mo., 396 S.W.2d 601, 603. See Interlocutory 
appeal. 
Judgment notwithstanding verdict. See Non obstante 
veredicto. 
Judgment of conviction. A judgment of conviction shall 
set forth the plea, the verdict or findings, and the 
adjudication and sentence. If the defendant is found not 
guilty or for any other reason is entitled to be dis
charged, judgment shall be entered accordingly. The 
judgment shall be signed by the judge and entered by 
the clerk. Fed.R. Crim.P. 32(b). 
Judgment on pleadings. After the pleadings are closed 
but within such time as not to delay the trial, any party 
may move for judgment on the pleadings. If, on a 
motion for judgment on the pleadings, matters outside 
the pleadings are presented to and not excluded by the 
court, the motion shall be treated as one for summary 
judgment and disposed of as provided in Rule 56, and all 
parties shall be given reasonable opportunity to present 
all material made pertinent to such a motion by Rule 
56. Fed.R.Civ.P. 12(c). This device resembles closely a 
demurrer to the extent that it attacks the pleadings on 
the same basis as a demurrer. 
Junior judgment. One which was rendered or entered 
after the rendition or entry of another judgment, on a 
different claim, against the same defendant. 
Merits, judgment on. One rendered after argument and 
investigation, and when it is determined which party is 
in the right, as distinguished from a judgment rendered 
upon some preliminary or formal or merely technical or 
procedural point, or by default and without trial. A 
decision that was rendered on the basis of the evidence 
and facts introduced. Normally, a judgment based sole
ly on some procedural error is not a judgment on the 
merits. The latter kind of judgment is often referred to 
as a "dismissal without prejudice." A party who has

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JUDGMENT 
received a judgment on the merits cannot bring the 
same suit again. A party whose case has been dismissed 
without prejudice can bring the same suit again so long 
as the procedural errors are corrected (i.e., cured) in the 
later action. 
For res judicata purposes is one which determines the 
rights and liabilities of the parties based on the ultimate 
fact as disclosed by the pleadings or issues presented for 
trial. Thompson-Hayward Chemical Co. v. Cyprus 
Mines Corp., 8 Kan.App.2d 487, 660 P.2d 973, 975. 
Money judgment. One which adjudges the payment of a 
sum of money, as distinguished from one directing an 
act to be done or property to be restored or transferred. 
A judgment, or any part thereof, for a sum of money or 
directing the payment of a sum of money. For enforce
ment or satisfaction of money judgment, see Execution. 
Several states have adopted the Uniform Foreign Money 
Judgments Recognition Act. 
Nihil dicit judgment. See Nihil dicit. 
Nil capiat per breve or per billa (that he take nothing by 
his writ, or by his bill). A judgment in favor of the 
defendant upon an issue raised upon a declaration or 
peremptory plea. 
Nil dicit, judgment by. Judgment for plaintiff rendered 
when defendant has appeared but has failed to answer 
or when answer has been withdrawn or abandoned and 
no further defense is made. Bredeson v. Merrill Lynch, 
Pierce, Fenner & Smith, Inc., Tex.Civ.App., 513 S.W.2d 
110, 112. At common law, it may be taken against 
defendant who omits to plead or answer whole or any 
separable substantial portion of declaration. It amounts 
to judgment by confession with reference to cause of 
action states. Grand Lodge Brotherhood of Railroad 
Trainmen v. Ware, Tex.Civ. App., 73 S.W.2d 1076, 1077. 
Under current rules practice, such judgment is substan
tially identical with default judgment. See also Nihil 
dicit. 
Nisi. At common law, judgment nisi was a judgment 
entered on the return of the nisi prius record, which, 
according to the terms of the postea indorsed thereon 
was to become absolute unless otherwise ordered by the 
court within the first four days of the next succeeding 
term. See also Nisi; Show cause order. 
Nolle prosequi, judgment of. One entered against plain
tiff when, after appearance and before judgment, he 
declares that he will not further prosecute his suit. 
Merchants Mut. Casualty Co. v. Kiley, 92 N.H. 323, 30 
A.2d 681, 683. See also Nolle prosequi. 
Non obstante veredicto. See Non obstante veredicto. 
Non pros. (Non prosequitur [he does not follow up, or 
pursue]). See Non prosequitur. 
Nonsuit. See Nonsuit. 
Non sum informatus. See Non sum informatus. 
Notwithstanding verdict. See Non obstante verdicto. 
Nul tiel record. See Nul tiel record. 
844 
Nunc pro tunc. Judgment given effect as of a date in 
the past. One entered on a day subsequent to the time 
at which it should have been entered, as of the latter 
date. See Nunc pro tunc. 
Offer of judgment. Before trial, a party defending 
against a claim may serve upon the adverse party an 
offer to allow judgment to be taken against him for the 
money or property or to the effect specified in his offer, 
with costs then accrued. If after service of the offer the 
adverse party serves written notice that the offer is 
accepted, either party may then file the offer and notice 
of acceptance together with proof of service thereof and 
thereupon the clerk shall enter judgment. Fed.R.Civil 
P. 68. 
Personal judgment. One imposing on the defendant a 
personal liability to pay it, and which may therefore be 
satisfied out of any of his property which is within the 
reach of process, as distinguished from one which may 
be satisfied only out of a particular fund or the proceeds 
of particular property. Judgments in which court has 
personal jurisdiction over parties. State v. Dreyer, 188 
Kan. 270, 362 P.2d 55, 57. 
Pro retorno habendo. A judgment that the party have a 
return of the goods. 
Quod computet. See Quod computet. 
Quod partes replacitent. See Quod partes replacitent. 
Quod partitio fiat. Interlocutory judgment in a writ of 
partition, that partition be made. 
Quod recuperet. See Quod recuperet. 
Relicta verif icatione. See Relicta verificatione. 
Repleader, judgment of. See Repleader. 
Respondeat ouster. When the issue in law arises on a 
dilatory plea, and is determined for the plaintiff, the 
judgment is only that the defendant "do answer over," 
called a judgment of respondeat ouster; it is interlocu
tory only. 
Retraxit. See Retraxit. 
Revival of judgment. See Revival. 
Stet processus. See Stet processus. 
Summary judgment. See Summary judgment. 
Verdict, judgment on. The most usual of the judgments 
upon facts found, and is for the party obtaining the 
verdict. See also Verdict. 
Warrant of attorney. See Warrant. 
Judgment book. A book required to be kept by the 
clerk, among the records of the court, for the entry of 
judgments. Such is called a "civil docket" or "criminal 
docket" in the federal and many state courts. Fed.R. 
Civil P. 79; Fed.R.Crim.P. 55. See also Judgment docket. 
Judgment creditor. A person in whose favor a money 
judgment has been entered by a court of law and who 
has not yet been paid. One who has obtained a judg
ment against his debtor, under which he can enforce 
execution. A person in whose favor a money judgment

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845 
is entered or a person who becomes entitled to enforce 
it. Owner of an unsatisfied judgment. For purpose of 
Internal Revenue Code, term is used in conventional 
sense of judgment of court of record. U.S. v. Gilbert 
Associates, 345 U.S. 361, 364, 73 S.Ct. 701, 703-704, 97 
L.Ed. 1071. C{. U.C.C. 9-301(3) (lien creditor). Compare 
Judgment debtor. See also Attachment; Execution (Writ 
of execution); Judgment lien. 
Judgment debt. A monetary obligation which is either 
evidenced by a written record, or brought about by 
successful legal action against the debtor. A debt, 
whether on simple contract or by specialty, for the 
recovery of which judgment has been entered, either 
upon a cognovit or upon a warrant of attorney or as the 
result of a successful action. See also Judgment debtor. 
Judgment debtor. A person against whom judgment 
has been recovered, and which remains unsatisfied. 
The term has been construed to include a judgment 
debtor's successors in interest. Compare Judgment credi
tor. See also Attachment; Execution (Writ of execution); 
Judgment lien. 
Judgment docket. A list or docket of the judgments 
entered in a given court, methodically kept by the clerk 
or other proper officer, open to public inspection, and 
intended to afford official notice to interested parties of 
the existence or lien of judgments. See Fed.R.Civ.P. 79; 
Fed.R.Crim.P. 55. See also Docket; Judgment book. 
Judgment, estoppel by. The estoppel raised by the 
rendition of a valid judgment by a court having jurisdic
tion. The essence of estoppel by judgment is that there 
has been a judicial determination of a fact. Price v. 
Clement, 187 Okl. 304, 102 P.2d 595, 597. It rests upon 
principles forbidding one to relitigate matter in dispute 
between parties which has been determined by compe
tent court, on ground that record of judgment imports 
absolute verity. Where subsequent proceeding is on 
same cause of action between same parties a former 
adjudication is conclusive. Kimpton v. Spellman, 351 
Mo. 674, 173 S.W.2d 886. Ordinarily, "estoppel" of 
judgment does not extend to matters not expressly adju
dicated. Sonken-Galamba Corporation v. Atchison, T. & 
S. F. Ry. Co., C.C.A.Mo., 124 F.2d 952, 956; and a 
judgment or decree without prejudice does not work an 
"estoppel". In re McDermott, C.C.A.Ill., 115 F.2d 582, 
584. See also Collateral estoppel doctrine; Issue preclu
sion; Judi cial estoppel; Res (Res judicata). 
Judgment execution. The formal or written evidence 
of the judgment which commands the officer to seize the 
goods and property of the judgment debtor to satisfy the 
judgment. Procedure on execution is governed by Fed. 
R.Civil P. 69. See Execution. 
Judgment file. The docket in which the entry of a 
judgment is recorded and preserved as a permanent 
court record. Fed.R.Civ.P. 79; Fed.R.Crim.P. 55. See 
also Docket; Judgment docket. 
Judgment in personam or inter partes /jajm:mt in 
p�rs6wn�m;oint�r partiyz/. A judgment against a par
ticular person, as distinguished from a judgment against 
JUDGMENT QUASI IN REM 
a thing or a right or status. See also Judgment (Personal 
judgment). 
Judgment in rem. An ad judication pronounced upon 
the status of some particular thing or subject matter, by 
a tribunal having competent authority. Booth v. Cop
ley, 283 Ky. 23, 140 S.W.2d 662, 666. It is founded on 
proceeding instituted against or on some thing or subject 
matter whose status or condition is to be determined, 
Eureka Building & Loan Ass'n v. Shultz, 139 Kan. 435, 
32 P.2d 477, 480; or one brought to enforce a right in 
the thing itself, Federal Land Bank of Omaha v. Jeffer
son, 229 Iowa 1054, 295 N.W. 855, 857. It operates 
directly upon the property. Guild v. Wallis, 150 Or. 69, 
40 P.2d 737, 742. It is a solemn declaration of the status 
of some person or thing. Jones v. Teat, Tex.Civ.App., 57 
S.W.2d 617, 620. It is binding upon all persons in so far 
as their interests in the property are concerned. See 
also Judgment quasi in rem. 
Judgment in retraxit /jajm�nt in r�trreks�tI. A judg
ment which is usually based upon and follows a settle
ment out of court, and like a judgment on the merits is a 
bar and estops plaintiff from again proceeding in anoth
er suit on same cause of action. Steele v. Beaty, 215 
N.C. 680, 2 S.E.2d 854, 856, 857. See Retraxit. 
Judgment lien. An encumbrance that arises by law 
when a judgment for the recovery of money is docketed 
and that attaches to the debtor's real estate located in 
the county where the judgment is docketed. A lien 
binding the real estate of a judgment debtor, in favor of 
the holder of the judgment, and giving the latter a right 
to levy on the property for the satisfaction of his judg
ment to the exclusion of other adverse interests subse
quent to the judgment. Right to subject property of 
judgment debtor to satisfaction of judgment. A charge 
on or attachment of property of one who owes a debt 
and is subject to a judgment thereon. See also Execu
tion. 
Judgment note. A promissory note (also called cognovit 
note) embodying an authorization to an attorney, or to a 
designated attorney, or to the holder, or the clerk of the 
court, to enter an appearance for the maker and confess 
a judgment against him for a sum therein named, upon 
default of payment of the note. Such are invalid in 
many states. See Judgment (Confession of judgment). 
Judgment of his peers. A term of expression borrowed 
from Magna Charta meaning trial by jury. Ex parte 
Wagner, 58 Okl.Cr. 161, 50 P.2d 113 5, 11 39. 
Judgment paper. In English practice, a sheet of paper 
containing an incipitur of the pleadings in an action at 
law, upon which final judgment is signed by the master. 
Judgment proof. Descriptive of all persons against 
whom judgments for money recoveries are of no effect; 
e.g., persons who are insolvent, who do not have suffi
cient property within the jurisdiction of the court to 
satisfy the judgment, or who are protected by statutes 
which exempt wages and property from execution. 
Judgment quasi in rem. A judgment based on the 
court's jurisdiction over the defendant's interest in prop-

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JUDGMENT QUASI IN REM 
erty within the jurisdiction of the court and not on the 
court's jurisdiction over the person of the defendant (in 
personam) or over the thing itself (in rem). 
Judgment record. In English practice, a parchment 
roll, on which are transcribed the whole proceedings in 
the cause, deposited and filed of record in the treasury 
of the court, after signing of judgment. In American 
practice, the record is signed, filed, and docketed by the 
clerk. See Fed.R.C ivil P. 79. See also Docket; Judgment 
docket. 
Judgment recovered. A plea by a defendant that the 
plaintiff has already recovered that which he seeks to 
obtain by his action. This was formerly a species of 
sham plea, often put in for the purpose of delaying a 
plaintiffs action. Under current rules practice, the 
defense of prior judgment would be raised as an affirma
tive defense. Fed.R.Civ.P. 8(c). 
Judgment roll. See Roll. 
Judgment void on its face. A judgment or order is 
"void on its face" when its invalidity is apparent upon 
inspection of judgment roll. Application of Behymer, 
130 Cal.App. 200, 19 P.2d 829, 830. 
Judicandum est legibus, non exemplis Ijuwd�kamd�m 
est liyj�b�s non �gzempl�s/. Judgment is to be given 
according to the laws, not according to examples or 
precedents. 
Judicare Ijuwd�keriy/. Lat. In the civil and old Eng
lish law, to judge; to decide or determine judicially; to 
give judgment or sentence. 
Judicatio Ijuwd�keysh(iy)ow/. Lat. In the civil law, 
judging; the pronouncing of sentence after hearing a 
cause. 
Judicatories Ijuwd�k�toriyz/juwdik�t(�)riyz/. The term 
as used designates that department of government 
which it was intended should interpret and administer 
the laws. 
Judicature. The state or profession of those officers 
who are employed in administering justice; the judi
ciary. A judicatory, tribunal, or court of justice. Juris
diction; the right of judicial action; the scope or extent 
of jurisdiction. 
Judicature Acts (England). The acts under which the 
present system of courts in England was organized and 
is continued. 
The statutes of 36 & 37 Vict., c. 66, and 38 & 39 Vict., 
c. 77, which went into force November 1, 1875, with 
amendments in 1877, 40 & 41 Vict., c. 9; 1879, 42 & 43 
Vict., c. 78; and 1881, 44 & 45 Vict., c. 68, made very 
important changes in the organization of, and methods 
of procedure in, the superior courts of England, consol
idating them together so as to constitute one supreme 
court of judicature, consisting of two divisions,-her 
majesty's high court of justice, having chiefly original 
jurisdiction; and her majesty's court of appeal, whose 
jurisdiction is chiefly appellate. 
Such acts were superseded by the Supreme Court Act 
of 1981. Also, the High Court was reorganized in 1970. 
846 
The Court of Appeal was reorganized in 1966. By the 
Courts Act of 1971 the Crown Court replaces the Quar
ter Sessions and the courts of assize and was made a 
part of the Supreme Court. 
See also Judiciar y Acts. 
Judices Ijuwd�siyz/. Lat. Judges. See Judex. 
Judices non tenentur exprimere causam sententire 
sure Ijuwd�siyz non t�nent�r �kspraym�riy k6z�m 
sentenshiy(iy) s(y)uwiy/. Judges are not bound to ex
plain the reason of their sentence. 
Judices ordinarii Ijuwd�siyz ord�neriyay/. Lat. Plural 
of judex ordinarius (q.v.). 
Judices pedanei Ijuwd�siyz p�deyniyay/. Lat. Plural 
of judex pedaneus (q. v.). 
Judices selecti Ijuwd�siyz s�lektay/. Lat. Plural of 
judex selectus (q. v.). 
Judicia; judicia publica Ij�dis(h)(i)y�rp�bl�k�/. Lat. 
In Roman law. Judicial proceedings; trials. Judicia 
publica, criminal trials. See also Judicium. 
Judicia in curia regis non adnihilentur, sed stent in 
robore suo quousque per errorem aut attinctum 
adnullentur Ij�dis(h)(i)y� in kyuriy� rlYJ�S non 
�dnay(h)�lent�r, sed stent in r�b6riy s(y)uwow 
kwow�skwiy p�r �r6r�m ot �tiIJ(k)t�m ,Mn�lent�r /. 
Judgments in the king's court are not to be annihilated, 
but to remain in force until annulled by error or attaint. 
Judicia in deliberationibus crebro maturescunt, in 
accelerato processu nunquam Ij�dis(h)(i)y� in 
d�lib�reyshiy6wn�b�s kriybrow mrety�resk�nt, in 
�ksel�reytow pr�ses(y)uw n�IJkw�m/. Judgments fre
quently become matured by deliberations, never by hur
ried process or precipitation. 
Judicial. Belonging to the office of a judge; as judicial 
authority. Relating to or connected with the adminis
tration of justice; as a judicial officer. Having the 
character of judgment or formal legal procedure; as a 
judicial act. Proceeding from a court of justice; as a 
judicial writ, a judicial determination. Involving the 
exercise of judgment or discretion; as distinguished 
from ministerial. 
Of or pertaining or appropriate to the administration 
of justice, or courts of justice, or a judge thereof, or the 
proceedings therein; as, judicial power, judicial proceed
ings. State v. Freitag, 53 Idaho 726, 27 P.2d 68. 
As to judicial Action; Confession; Day; Discretion; 
Document; Estoppel; Evidence; Factor; Mortgage; No
tice; Process; Record; Sale; Sequestration; Writ, see 
those titles. As to Quasi judicial, see that title. 
Judicial act. An act which invol ·es exercise of discre
tion or judgment. It is also defined as an act by court or 
magistrate touching rights of parties or property 
brought before it or him by voluntary appearance, or by 
prior action of ministerial officers. An act by member 
of judicial department in construing law or applying it 
to a particular state of facts. State ex reI. Tharel v. 
Board of Com'rs of Creek County, 188 Ok!. 184, 107 P.2d 
542, 549. An act of administrative board if it goes to

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847 
determination of some right, protection of which is pecu
liar office of courts. Belk's Dept. Store v. Guilford 
County, 222 N.C. 441, 23 S.E.2d 897, 902. An act which 
imposes burdens or confers privileges according to find
ing of some person or body whether a general rule is 
applicable or according to discretionary judgment as to 
propriety. An act which undertakes to determine a 
question of right or obligation or of property as founda
tion on which it proceeds. The action of judge in trying 
a cause and rendering a decision. Application of Gleit, 
178 Misc. 198, 33 N.Y.S.2d 629, 630, 631. 
Rendition or pronouncement of a judgment is a judi
cial act and entry thereof a ministerial act. Peoples 
Electric Co-op. v. Broughton, 191 Okl. 229, 127 P.2d 850, 
853. But if there are matters requiring exercise of 
court's discretion, entry of decree is judicial act. Stew
art v. Superior Court in and for Los Angeles County, 3 
Cal.App.2d 702, 40 P.2d 529. 
For purposes of judicial immunity, an act is "judicial" 
if it is a function normally performed by a judge, and 
parties dealt with judge in his judicial capacity. Mar
tinez v. Winner, C.A.Colo., 771 F.2d 424, 434. 
See also Decision; Decree; Judg ment; Order. 
Judicial action. An adjudication upon rights of parties 
who in general appear or are brought before tribunal by 
notice or process, and upon whose claims some decision 
or judgment is rendered. Action of a court upon a 
cause, by hearing it, and determining what shall be 
adjudged or decreed between the parties, and with 
which is the right of the case. 
Judicial activism. Judicial philosophy which motivates 
judges to depart from strict adherence to judicial prece
dent in favor or progressive and new social policies 
which are not always consistent with the restraint ex
pected of appellate judges. It is commonly marked by 
decisions calling for social engineering and occasionally 
these decisions represent intrusions into legislative and 
executive matters. 
Judicial acts. See Jud iciary Acts. 
Judicial admission. See Admission. 
Judicial Article. Article III of the U.S .Const. which 
creates the U.S. Supreme Court; vests in Congress the 
right to create inferior courts; provides for life tenure 
for Federal Court judges; and specifies the powers and 
jurisdiction of the Federal Courts. See Federal Judi cial 
Code; Judi cial branch; Jud icial power; Judicial system; 
Judi ciary Acts. 
Judicial authority. The power and authority apper
taining to the office of a judge. Jurisdiction; the official 
right to hear and determine questions in controversy. 
Judicial bonds. Generic term for bonds required by 
court for appeals, costs, attachment, injunction, etc. 
Judicial branch. Branch of state and federal govern
ment whose function it is to interpret, construe, apply, 
and generally administer and enforce the laws. This 
branch, together with the executive and legislative 
branches forms our tripartite form of federal and state 
government. See U.S. Constitution, Article III. See 
JUDICIAL DISCRETION 
Ju dicial Article; Judi cial power; Judicial system; Ju diciary 
Acts. 
Judicial business. Such as involves the exercise of 
judicial power, or the application of the mind and au
thority of a court to some contested matter, or the 
conduct of judicial proceedings, as distinguished from 
such ministerial and other acts, incident to the progress 
of a cause, as may be performed by the parties, counsel, 
or officers of the court without application to the court 
or judge. See Judic ial act; Judicial action. 
Judicial Code. See Federal Judi cial Code. 
Judicial cognizance. Judicial notice, · or knowledge 
upon which a judge is bound to act without having it 
proved in evidence. See Judicial notice. 
Judicial comity. Principle in accordance with which 
courts of one state or jurisdiction give effect to laws and 
judicial decisions of another state out of deference and 
respect, not obligation. See also Full faith and credit 
clause. 
Judicial council. Provision is made in 28 U.S.C.A. 
§ 332 for the Chief Judge of each Circuit Court of Appeal 
to call a council of all the judges of the circuit twice each 
year. The primary function of the councils is to assure 
expeditious and effective administration of the business 
of the courts. 
Judicial cy pres /j;;)dish;;)l siy prey/. Doctrine of "judi
cial cy pres" is a principle of construction based on a 
judicial finding of donor's intention as applied to new 
conditions. Rohlff v. German Old People's Home, 143 
Neb. 636, 10 N.W.2d 686, 691. When only minor fea
tures of a trust for charity become impossible or imprac
ticable of performance and it cannot properly be said 
that general scheme of testator has failed, doctrine of 
"judicial cy pres" operates to avoid failure of charity. 
Noel v. OIds, 78 U.S.App.D.C. 155, 138 F.2d 581, 586, 
587. See also Cy-pres. 
Judicial decision. Application by a court or tribunal 
exercising judicial authority of competent jurisdiction of 
the law to a state of facts proved, or admitted to be true, 
and a declaration of the consequences which follow. In 
re Knofler's Estate, 73 Ohio App. 383, 52 N.E.2d 667, 
668. See also DeciSion; Decree; Judg ment; Opinion; 
Order. 
Judicial department. See also Ju dicial branch. 
Judicial dictum /juwdish;;)l dikt;}m/. A dictum made by 
a court or judge in the course of a judicial decision or 
opinion. Com. v. Paine, 207 Pa. 45, 56 A. 317. Expres
sion of opinion by court on question directly involved, 
argued by counsel and deliberately passed on by court, 
which is not necessary to decision in the case. Atlantic 
City Casino Ass'n v. Kimmelman, 204 N.J.Super. 652, 
499 A.2d 1049, 1054. See Dictum. 
Judicial discretion. Term is a broad and elastic one 
which is equated with sound judgment of court to be 
exercised according to rules oflaw. People v. Russel, 70 
Cal.Rptr. 210, 215, 448 P.2d 794. The option the trial 
judge has in doing or not doing a thing that cannot be

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JUDICIAL DISCRETION 
demanded by a litigant as an absolute right. Kasper v. 
Helfrich, Mo.App., 421 S.W.2d 66, 69. A sound judg
ment which is not exercised arbitrarily, but with regard 
to what is right and equitable in circumstances and law, 
and which is directed by the reasoning conscience of the 
trial judge to a just result. State v. Grant, 10 Wash. 
App. 468, 519 P.2d 261, 265. See also Judi cial duty. 
Judicial district. One of the circuits or precincts into 
which a state is commonly divided for judicial purposes; 
a court of general original jurisdiction being usually 
provided in each of such districts, and the boundaries of 
the district marking the territorial limits of its authori
ty; or the district may include two or more counties, 
having separate and independent county courts, but in 
that case they are presided over by the same judge. 
Term is also used to describe or refer to federal judicial 
districts of the various states. See 28 U.S.C.A. § 81 et 
seq. 
Judicial duty. One that requires exercise of judgment 
or choice of alternatives in its performance. One that 
requires exercise of judgment or decision of a question of 
fact. State ex reI. Coast Holding Co. v. Ekwall, 144 Or. 
672, 26 P.2d 52. One that requires use of discretion or 
examination of evidence and decision of questions of law 
and fact. One that legitimately pertains to an officer in 
judicial department. Harding v. McCullough, 236 Iowa 
556, 19 N.W.2d 613, 617; Ex parte Lewis, 328 Mo. 843, 
42 S.W.2d 21, 22. See also Judicial act; Judicial action; 
Ju dicial discretion. 
Judicial errors. Errors into which the court itself falls 
are "judicial errors." An error of this character occurs 
when the judgment rendered is erroneous in some par
ticular, requiring it to be changed. See Error. 
Judicial estoppel. Under doctrine of "judicial estop
pel," a party is bound by his judicial declarations and 
may not contradict them in a subsequent proceeding 
involving same issues and parties. Sailes v. Jones, 17 
Ariz.App. 593, 499 P.2d 721, 726. Under this doctrine, a 
party who by his pleadings, statements or contentions, 
under oath, has assumed a particular position in a 
judicial proceeding is estopped to assume an inconsistent 
position in a subsequent action. Yarber v. Pennell, 
Tex.Civ.App., 443 S.W.2d 382, 384. It is the doctrine of 
the conclusiveness of the judgments. State v. Ohio Oil 
Co., Tex.Civ.App., 173 S.W.2d 470, 478, 479. See also 
Collateral estoppel doctrine; Issue preclusion; Judg ment, 
estoppel by; Res (Res judicata). 
Judicial evidence. The means, sanctioned by law, of 
ascertaining in a judicial proceeding the truth respect
ing a question. See Evidence. 
Judicial foreclosure. See Foreclosure sale. 
Judicial function. The exercise of the judicial faculty 
or office. The capacity to act in the specific way which 
appertains to the judicial power, as one of the powers of 
government. The term is used to describe generally 
those modes of action which appertain to the judiciary 
as a department of organized government, and through 
and by means of which it accomplishes its purposes and 
848 
exercises its peculiar powers. See also Judi cial act; Judi
cial action; Judicial business. 
Judicial immunity. The absolute protection from civil 
liability arising out of the discharge of judicial functions 
which every judge enjoys. Under doctrine of "judicial 
immunity," a judge is not subject to liability for any act 
committed within the exercise of his judicial function; 
the immunity is absolute in that it is applicable even if 
the actions of the judicial official are taken in bad faith. 
C. M. Clark Ins. Agency, Inc. v. Reed, D.C.Tex., 390 . 
F.Supp. 1056, 1060. However, a · person may be given 
injunctive relief and an award of attorneys' fees under 
the Civil Rights Act (42 U.S.C.A. §§ 1983, 1988). Pul
liam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 
565. 
Judicial inquiry. Such inquiry investigates, declares, 
and enforces liabilities as they stand on present or past 
facts and under laws supposed already to exist. Okla
homa Gas & Electric Co. v. Wilson & Co. of Oklahoma, 
C.C.A.OkI., 54 F.2d 596, 598. 
Judicial knowledge. Knowledge of that which is so 
notorious that everybody, including judges, knows it, 
and hence need not be proved. Ex parte Ferguson, 112 
Tex.Cr.R. 152, 15 S.W.2d 650, 652. See Judi cial notice. 
Judicial legislation. See Judge-made law. 
Judicial lien. One obtained by judgment, levy, seques
tration, or other legal or equitable process or proceeding. 
Within meaning of Bankruptcy Code lien avoidance 
section, is charge against or interest in property to 
secure payment of debt, obtained by judgment or other 
legal proceedings. In re Ashe, c.A.Pa., 669 F.2d 105, 
108. Bankruptcy Code § 101. 
Judicial notice. The act by which a court, in conduct
ing a trial, or framing its decision, will, of its own 
motion or on request of a party, and without the produc
tion of evidence, recognize the existence and truth of 
certain facts, having a bearing on the controversy at 
bar, which, from their nature, are not properly the 
subject of testimony, or which are universally regarded 
as established by common notoriety, e.g., the laws of the 
state, international law, historical events, the constitu
tion and course of nature, main geographical features, 
etc. The cognizance of certain facts which judges and 
jurors may properly take and act upon without proof, 
because they already know them. Such notice excuses 
party having burden of establishing fact from necessity 
of producing formal proof. Hutchinson v. State, Ind., 
477 N.E.2d 850, 854. Fed.Evid.Rule 201. 
Judicial oath. See Oath. 
Judicial office. Offices which relate to the administra
tion of justice; and which should be exercised by persons 
of sufficient skill and experience in the duties which 
appertain to them. A general term including courts of 
record and courts not of record. 
Judicial officer. A judge or magistrate. The term, in 
the popular sense, applies generally to any officer of a 
court, but in the strictly legal sense applies only to an 
officer who determines causes between parties or ren-

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849 
ders decision in a judicial capacity. One who exercises 
judicial function. Adams v. State, 214 Ind. 603, 17 
N.E.2d 84. A person in whom is vested authority to 
decide causes or exercise powers appropriate to a court. 
Judicial opinion. A term synonymous with what has 
been adjudged or decreed and final in its character. See 
DeCision; Decree; Judg ment; Opinion; Order. 
Judicial order. One which involves exercise of judicial 
discretion and affects final result of litigation. Happy 
Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23, 27. See 
also Decision; Decree; Judg ment; Order. 
Judicial power. The authority exercised by that de
partment of government which is charged with declara
tion of what law is and its construction. The authority 
vested in courts and judges, as distinguished from the 
executive and legislative power. Courts have general 
powers to decide and pronounce a judgment and carry it 
into effect between two persons and parties who bring a 
case before it for decision; and also such specific powers 
as contempt powers, power to control admission and 
disbarment of attorneys, power to adopt rules of court, 
etc. 
A power involving exercise of judgment and discretion 
in determination of questions of right in specific cases 
affecting interests of person or property, as distin
guished from ministerial power involving no discretion. 
Inherent authority not only to hear and determine con
troversies between adverse parties, but to make binding 
orders or judgments. Fewel v. Fewel, 23 Ca1.2d 431, 144 
P.2d 592, 594. Power to decide and pronounce a judg
ment and carry it into effect between persons and par
ties who bring a case before court for decision. Power 
that adjudicates upon and protects the rights and inter
ests of persons or property, and to that end declares, 
construes and applies the law. 
The primary source of powers of federal courts is 
provided in Art. III of U.S.C onst., and Judiciary Act of 
1789 (Title 28 of U.S .Code). See Judi Ciary Acts. 
Judicial proceeding. Any proceeding wherein judicial 
action is invoked and taken. Mannix v. Portland Tele
gram, 144 Or. 172, 23 P.2d 138. Any proceeding to 
obtain such remedy as the law allows. Any step taken 
in a court of justice in the prosecution or defense of an 
action. A general term for proceedings relating to, 
practiced in, or proceeding from, a court of justice; or 
the course prescribed to be taken in various cases for the 
determination of a controversy or for legal redress or 
relief. A proceeding in a legally constituted court. A 
proceeding wherein there are parties, who have opportu
nity to be heard, and wherein the tribunal proceeds 
either to a determination of facts upon evidence or of 
law upon proved or conceded facts. See also Trial. 
Judicial question. One proper for the determination of 
a court of justice, as distinguished from moot questions 
or from such questions as belong to the decision of the 
legislative or executive departments of government and 
with which the courts will not interfere, called "politi
cal" or "legislative" questions. See also Case (Cases and 
controvers ies). 
Black's Law Dictionary 6th Ed.-19 
JUDICIARY 
Judicial records. Dockets or records of judicial proceed
ings; a judgment is a judicial record. Little v. Stevens, 
23 Cal.App.3d 112, 99 Cal. Rptr. 885, 886; Fed.R.C ivil P. 
79. See Docket; Judgm ent docket; Judgm ent record. 
Judicial remedy. Such as is administered by the courts 
of justice, or by judicial officers empowered for that 
purpose by the constitution and laws of the state or 
nation. See also Remedy. 
Judicial reprieve. See Reprieve. 
Judicial review. Power of courts to review decisions of 
another department or level of government. Marbury v. 
Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60. Form of 
appeal from an administrative body to the courts for 
review of either the findings of fact, or of law, or of both. 
May also refer to appellate court review of decisions of 
trial court or of an intermediate appellate court. See 
also Appeal. 
Judicial Review Act. Federal statute which sets forth 
scope of review of decisions of federal administrative 
agencies. 28 U.S.C.A. §§ 2341-2351. 
Judicial sale. Sale conducted under a judgment, order, 
or supervision of a court as in a sale under a petition for 
partition of real estate or an execution or a foreclosure 
sale. One which must be based upon an order or a 
decree of a court directing the sale. Petition of Ac
chione, 425 Pa. 23, 227 A.2d 816, 821, 823. A sale in a 
bankruptcy proceeding is a "judicial sale". In re Dennis 
Mitchell Industries, Inc., D.C.Pa., 280 F.Supp. 433, 436. 
See also Execution sale; Foreclosure sale; Sale; Sheriff's 
sale; Tax sale. 
Judicial self-restraint. Self-imposed discipline by 
judges in deciding cases without permitting themselves 
to indulge their own personal views or ideas which may 
be inconsistent with existing decisional or statutory law. 
Judicial separation. A separation of man and wife by 
decree of court, less complete than an absolute divorce. 
A "limited divorce" or a "divorce a mensa et thoro." 
Judicial system. Entire network of courts in a particu
lar jurisdiction. The federal judicial system consists of 
the Supreme Court, Courts of Appeals, District Courts, 
and specialized courts such as the Court of Claims, Court 
of Customs and Patent Appeals, etc. See 28 U.S.C.A. 
§ 1 et seq.; Art. III, U.S. Const. See also Judi cial Article; 
Judi ciary (n). 
Judicia posteriora sunt in lege fortiora /j;}dis(h)(i)y;} 
p;}stiriyor;} s;lnt in liyjiy forsh(iy)or;}/. The later deci
sions are the stronger in law. 
Judiciary, adj. / j;}dish(iy );}riy / . Pertaining or relating 
to the courts of justice, to the judicial department of 
government, or to the administration of justice. 
Judiciary, n. That branch of government invested with 
the judicial power; the system of courts in a country; 
the body of judges; the bench. That branch of govern
ment which is intended to interpret, construe and apply 
the law. Board of Com'rs of Wyandotte County v. Gen
eral Securities Corporation, 157 Kan. 64, 138 P.2d 479, 
487. See also Judi cial system.

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JUDICIARY ACTS 
Judiciary Acts. The Judiciary Article (Art. III) of the 
U.S. Constitution created a Supreme Court and "such 
inferior courts as the Congress may from time to time 
ordain or establish". The First Congress established 
such inferior federal courts under the Judiciary Act of 
1789. Subsequent major judiciary acts include the fol
lowing: Act of 1875 granting federal question jurisdic
tion; Act of 1891 (Evarts Act) establishing circuit courts 
of appeals and fixing the outline of the contemporary 
scheme of federal appellate review; Act of 1911 enacting 
the Federal Judicial Code (which was recodified in 1948 
and 1958); Act of 1925 (Judges' Bill), and 1988, further 
narrowing the scope of discretionary review by certiora
ri of the Supreme Court. See also Federal Judi cial Code. 
Judicia sunt tanquam juris dicta, et pro veritate 
accipiuntur /j;}dis(h)(i)y;} s�nt treI]kw;}m jur;}s dikt;} , et 
prow vehr;}teytiy ;}ksipiy�nt;}r/. Judgments are, as it 
were, the sayings of the law, and are received as truth. 
Judiciis posterioribus fides est adhibenda 
/j;}dis(h)iy;}s p;}stiriyor;}b;}s faydiyz est redh;}bend;}/. 
Faith or credit is to be given to the later judgments. 
Judici officium suum excedenti non paretur 
/juwd;}say ;}fish(iy);}m s(y)uw;}m eks;}dentay non 
p;}riyt;}r/. A judge exceeding his office (or jurisdiction) 
is not to be obeyed. Said of void judgments. 
Judiciously. Directed by sound judgment. Shivers v. 
Stovall, Tex.Civ.App., 75 S.W.2d 276, 279. 
Judici satis prena est, quod Deum habet ultorem 
/juwd;}say seyt;}s piyn;} est kwod diy;}m heyb;}t �ltor;}m/. 
It is punishment enough for a judge that he has God as 
his avenger. 
Judicis est in pronuntiando sequi regulam, excep
tione non probata /juwd;}s;}s est in pr;}n�ns(h)iyrendow 
sekway regy;}l;}m, ;}ksepshiyowniy non pr;}beyt;}/. The 
judge in his decision ought to follow the rule, when the 
exception is not proved. 
Judicis est judicare secundum allegata et probata 
/juwd;}s;}s est juwd;}keriy s;}k�nd;}m rel;}geyt;} et 
pr;}beyt;}/. It is the duty of a judge to decide according 
to facts alleged and proved. 
Judicis est jus dicere, non dare /juwd;}s;}s est j�s 
dis;}riy, non deriy r days;}riy· / . It is the province of a 
judge to declare the law, not to give it. 
Judicis officium est opus diei in die suo perficere 
/juwd;}s;}s ;}fish(iy);}m est OWP;}s dayiyay in dayiy 
s(y)uwow p;}rfis;}riy/. It is the duty of a judge to finish 
the work of each day within that day. 
Judicis officium est ut res, ita tempora rerum, 
qurerere /juwd;}s;}s ;}fish(iy);}m est �t riyz, ayt;} temp;}r;} 
rir;}m, kwir;}riy /. It is the duty of a judge to inquire 
into the times of things, as well as into things them
selves. 
Judicium /j�dis(h)(i)y�m/. Lat. Judicial authority or 
jurisdiction; a court or tribunal; a judicial hearing or 
other proceeding; a verdIct or judgment; a proceeding 
before a judex or judge. 
850 
Judicium a non suo judice datum nullius est momen
ti /j;}dis(h)(i)y;}m ey non s(y)uwow juwd;}siy deyt�m 
n�lay�s est m;}mentay/. A judgment given by one who 
is not the proper judge is of no force. 
Judicium capitale /j;}dis(h)(i)y�m krep�teyliy/. In old 
English law, judgment of death; capital judgment. 
Called, also, "judicium vitre amissionis," judgment of 
loss of life. 
Judicium Dei /j;}dis(h)(i)y�m diyay/. In old English and 
European law, the judgment of God; otherwise called 
"divinum judicium, " the "divine judgment." A term 
particularly applied to the ordeals by fire or hot iron 
and water, and also to the trials by the cross, the 
Eucharist, and the corsned, and the duellum or trial by 
battle (q. v.), it being supposed that the interposition of 
Heaven was directly manifest, in these cases, in behalf 
of the innocent. 
Judicium est quasi juris dictum /j;}dis(h)(i)y;}m est 
kweysay jur;}s dikt�m/. Judgment is, as it were, a 
declaration of law. 
Judicium non debet esse illusorium; suum effectum 
habere debet /j�dis(h)(i)y;}m non deb;}t esiy il
(y)uwzoriy�m; s(y)uw�m �fekt;}m h�biriy deb�tI. A judg
ment ought not to be illusory; it ought to have its 
proper effect. 
Judicium parium /j;}dis(h)(i)y;}m preriy;}m/. In old Eng
lish law, judgment of the peers; judgment of one's peers: 
trial by jury. 
Judicium (semper) pro veritate accipitur 
/j;}dis(h)(i)y;}m (semp;}r) prow vehr;}teytiy ;}ksipit;}r/. A 
judgment is always taken for truth [that is, as long as it 
stands in force it cannot be contradicted]. 
Judicium redditur in invitum /j;}dis(h)(i)y�m red�t�r in 
;}nvayt;}m/. Judgment is given against one, whether he 
will or not. 
Juge. In French law, a judge. 
Juge de paix /zhyuwz d;} pey/. An inferior judicial 
functionary, appointed to decide summarily controver
sies of minor importance, especially such as turn mainly 
on questions of fact. He has also the functions of a 
police magistrate. 
Juge d'instruction. See Instruct. 
Jugerum /j;}gir;}m/. An acre. As much as a yoke (ju
gum) of oxen could plow in one day. 
Jugulator /j�gy;}leyt;}r/. In old records, a cutthroat or 
murderer. 
Jugum /juwg;}m/. Lat. In the civil law, a yoke; a 
measure of land; as much land as a yoke of oxen could 
plow in a day. 
Jugum terrre /juwg�m tehriy/. In old English law, a 
yoke of land; half a plow-land. 
Juicio /huwiysiyow/. In Spanish law, a trial or suit. 
Juicio de apeo /huwiysiyow dey apeyow/. The decree 
of a competent tribunal directing the determining and 
marking the boundaries of lands or estates.

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851 
Juicio de concurso de acreedores Ihuwiysiyow dey 
konkursow dey akreyey<'5oreys/. The judgment granted 
for a debtor who has various creditors, or for such 
creditors, to the effect that their claims be satisfied 
according to their respective form and rank, when the 
debtor's estate is not sufficient to discharge them all in 
full. 
Julian law Ijuwl(i)y:m 16/. See Lex Julia. 
Jump bail. To abscond, withdraw, leave the jurisdic
tion, or secrete one's self, in violation of the obligation of 
a bail bond. See Forfeiture of bond. 
Junior. Younger. Lower in rank, tenure, preference, or 
position. 
This has been held to be no part of a man's name, but 
an addition by use, and a convenient distinction between 
a father and son of the same name. 
As to junior Barrister; Counsel; Creditor; Judgment; 
Partner; Security; Writ, see those titles. 
Junior execution. One which was issued after the 
issuance of another execution, on a different judgment, 
against the same defendant. 
Junior interest. A legal right which is subordinate to 
another's right as applied to property; e.g. a second 
mortgage is subordinate to a first mortgage. See also 
Creditor (Junior creditor). 
Junior lien. Lien which is subordinate to prior lien. 
See Lien. 
Junior mortgage. A mortgage which is subordinate to 
another mortgage, called the priority, prior, or senior 
mortgage. See also Mortgage. 
Junior security issue. Debt or equity issue that is 
subordinate to another security issue in terms of inter
est, principal, dividends, payment on dissolution, etc. 
See also Security. 
Junk bond. See Bond. 
Junket. An arrangement or arrangements the primary 
purpose of which is to induce any person to gamble at a 
licensed casino and pursuant to which, and as considera
tion for which, a certain portion of the cost of transpor
tation, food, lodging, and entertainment for said person 
is directly or indirectly paid by a casino licensee or 
employee or agent thereof. 
Jura Ijur:l/. Lat. Plural of "jus." Rights; laws. 
Jura ecclesiastica limitata sunt infra limites separa
tos Ijur:l :lkliyziyrest:lk:l lim:lteyt:l s�nt infr:l lim:ltiyz 
sep:lreytows/. Ecclesiastical laws are limited within 
separate bounds. 
Jura eodem modo destituuntur quo constituuntur 
Ijur:l iyowd:lm mowdow d:lstityuw�nt:lr kwow 
k:lnstityuw�nt:lr/. Laws are abrogated by the same 
means [authority] by which they are made. 
Jura fiscalia Ijur:l f:lskeyl(i)Y:l/. In English law, fiscal 
rights; rights of the exchequer. 
Jura in re Ijur:l in riy/. In the civil law, rights in a 
thing; rights which, being separated from the domini-
JURAMENTUM JUDICIALE 
um, or right of property, exist independently of it, and 
are enjoyed by some other person than him who has the 
dominium. 
Jural /jur:ll/. Pertaining to natural or positive right, or 
to the doctrines of rights and obligations; as "jural 
relations." Of or pertaining to jurisprudence; juristic; 
juridical. 
Recognized or sanctioned by positive law; embraced 
within, or covered by, the rules and enactments of 
positive law. Founded in law; organized upon the basis 
of a fundamental law, and existing for the recognition 
and protection of rights. 
The "jural sphere" is to be distinguished from the 
"moral sphere;" the latter denoting the whole scope or 
range of ethics or the science of conduct, the former 
embracing only such portions of the same as have been 
made the subject of legal sanction or recognition. 
The term "jural society" is used as the synonym of 
"state" or "organized political community." 
Jural cause. A matter or item involving law as con
trasted with social obligations or ethics. A judicial 
matter. 
Jura majestatis Ijur:l mrej:lsteyt:ls/. Rights of sovereign
ty or ma jesty; a term used in the civil law to designate 
certain rights which belong to each and every sovereign
ty and which are deemed essential to its existence. 
Juramentre corporales Ijur:lmentiy korp:lreyliyz/. Lat. 
Corporal oaths, q. v. 
Juramentum Ijur:lment:lm/. Lat. In the civil law, an 
oath. 
Juramentum calumnire Ijur:lment:lm k:ll�mniyiy/. In 
the civil and canon law, the oath of calumny. An oath 
imposed upon both parties to a suit, as a preliminary to 
its trial, to the effect that they are not influenced by 
malice or any sinister motives in prosecuting or defend
ing the same, but by a belief in the justice of their cause. 
It was also required of the attorneys and proctors. 
Juramentum corporalis Ijur:lment:lm korp:lreyl:ls/. A 
corporal oath. See Corporal oath. 
Juramentum est indivisibile; et non est admitten
dum in parte verum et in parte falsum Ijur:lment:lm 
est indiv:lzib:lliy et non est redm:ltend:lm in partiy viram 
ed in partiy fols:lm/. An oath is indivisible; it is not to 
be held partly true and partly false. 
Juramentum in litem Ijur:lment:lm in layt:lm/. In the 
civil law, an assessment oath; an oath, taken by the 
plaintiff in an action, that the extent of the damages he 
has suffered, estimated in money, amounts to a certain 
sum, which oath, in certain cases, is accepted in lieu of 
other proof. 
Juramentum judiciale Ijur:lment:lm juwdishiyeyliy/. 
In the civil law, an oath which the judge, of his own 
accord, defers to either of the parties. It is of two kinds: 
First, that which the judge defers for the decision of the 
cause, and which is understood by the general name 
'Juramentum judiciale, " and is sometimes called "sup
pletory oath," juramentum suppletorium; second, that

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JURAMENTUM JUDICIALE 
which the judge defers in order to fix and determine the 
amount of the condemnation which he ought to pro
nounce, and which is called "juramentum in litem." 
Juramentum necessarium Ijur;)m€mt;)m nes;)seriy;)m/. 
In Roman law, a compulsory oath. A disclosure under 
oath, which the prretor compelled one of the parties to a 
suit to make, when the other, applying for such an 
appeal, agreed to abide by what his adversary should 
swear. 
Juramentum voluntarium Ijur;}ment;}m vol;}nteriy;}m/. 
In Roman law, a voluntary oath. A species of appeal to 
conscience, by which one of the parties to a suit, instead 
of proving his case, offered to abide by what his adver
sary should answer under oath. 
Jura mixti dominii Ijur;} mikstay d;)miniyay/. In old 
English law, rights of mixed dominion. The king's right 
or power of jurisdiction was so termed. 
Jura naturre sunt immutabilia Ijur;} n;}t(y)uriy s;}nt 
imyuwt;}bH(i)y;}I . The laws of nature are unchangeable. 
Jura novit curia Ijur;} nowv;}t kyuriy;}/. The court 
knows the laws; the court recognizes rights. 
Jura personarum Ijur;} p;}rs;}ner;}m/. Rights of persons; 
the rights of persons. Rights which concern and are 
annexed to the persons of men. 
Jura prrediorum Ijur;} priydiyor;}m/. In the civil law, 
the rights of estates. 
Jura publica anteferenda privatis Ijur;} p;}bl;}k;) 
rent;}f;}rend;} pr;}veyt;}s/. Public rights are to be pre
ferred to private. 
Jura publica ex privato [privatis] promiscue decidi 
non debent Ijur;) p;}bl;}k;} eks pr;}veytow pr;)miskyuwiy 
d;}sayday non deb;}ntreks pr;}veyt;}so I. Public rights 
ought not to be decided promiscuously with private. 
Jurare Ij;}reriy/. Lat. To swear; to take an oath. 
Jurare est Deum in testem vocare, et est actus divini 
cultus Ij;}reriy est diy;)m in test;}m v;)keriy et est rekt;)s 
d;}vaynay k;}lt;}s/. To swear is to call God to witness, 
and is an act of religion. 
Jura regalia Ijur;} r;}geyl(i)y;}/. In English law, royal 
rights or privileges. 
Jura regia Ijur;} riyj(iy);}/. In English law, royal rights; 
the prerogatives of the crown. 
Jura regis specialia non conceduntur per generalia 
verba Ijur;} riyj;}s speshiyeyl(i)y;} non kons;}d;}nt;)r p;}r 
jen;}reyl(i)y;} v;}rb;} I . The special rights of the king are 
not granted by general words. 
Jura rerum Ijur;} rir;}m/. Rights of things; the rights of 
things; rights which a man may acquire over external 
objects or things, unconnected with his person. 
Jura sanguinis nullo jure civili dirimi possunt Ijur;} 
sre1Jgwtlntls n�low juriy sivtllay dirtlmay pOstlnt/. The 
right of blood and kindred cannot be destroyed by any 
civil law. 
852 
Jura summi imperii Ijur;} s;}may ;}mpiriyay/. Rights of 
supreme dominion; rights of sovereignty. 
Jurat Ijur;}t/. Certificate of officer or person before 
whom writing was sworn to. In common use term is 
employed to designate certificate of competent adminis
tering officer that writing was sworn to by person who 
signed it. The clause written at the foot of an affidavit, 
stating when, where, and before whom such affidavit 
was sworn. U. S. v. McDermott, 140 U.S. 151, 11 S.Ct. 
746, 35 L.Ed. 391; U. S. v. Julian, 162 U.S. 324, 16 S.Ct. 
801, 40 L.Ed. 984. See also Affidavit; Verification. 
Jurata Ij;}reyt;}/. In old English law, a jury of twelve 
men sworn. Especially, a jury of the common law, as 
distinguished from the assisa. 
The jury clause in a nisi prius record, so called from 
the emphatic words of the old forms: "Jurata ponitur in 
respectum, " the jury is put in respite. 
See also Jur at. 
Juration Ij;}reysh;}n/. The act of swearing; the adminis
tration of an oath. 
Jurato creditur in judicio Ij;}reydow kred;}t;}r in 
j;}dish(iy)ow/. He who makes oath is to be believed in 
judgment. 
Jurator Ij;}reyt;)r/. A juror; a compurgator (q.v.). 
Juratores debent esse vicini, sufficientes, et minus 
suspecti Ijur;}toriyz debtlnt esiy v;}saynay, s;)fis(h)iyen
tiyz, et mayn;}s s;}spektay/. Jurors ought to be neigh
bors of sufficient estate, and free from suspicion. 
Juratores sunt judices facti Ijur;)toriyz s;}nt juwd;}siyz 
frektay I. Juries are the judges of fact. 
Jurats Ijurrets/. In English law, officers in some corpo-
rations in Kent and Sussex in the nature of aldermen. 
Jure Ijuriy/. Lat. By right; in right; by the law. 
Jure belli Ijuriy belay/. By the right or law of war. 
Jure civili Ijuriy siv;}lay/. By the civil law. 
Jure coronre Ijuriy k;}rowniy/. In right of the crown. 
Jure divino Ijuriy d;}vitynow/. By divine right. 
Jure ecclesire Ijuriy ;}kliyziy(iy)I . In right of the 
church. 
Jure emphyteutico Ijuriy emf;}tyuwt;}kow/. By the 
right or law of emphyteusis. See Emphyteusis. 
Jure gentium Ijuriy jensh(iy);}m/. By the law of na
tions. 
Jure naturre requum est neminem cum alterius detri
Mento et injuria fieri locupletiorem Ijuriy ntltyliriy 
iykw;}m est nemtlntlm k;}m oltiriytls detrtlmentow et 
;}njuriy;} fay;}ray lowk;}pliyshiyor;}m/. By the law of 
nature it is not just that any one should be enriched by 
the detriment or injury of another. 
Jure representationis I juriy repr;}zenteyshiyowntls/. 
By right of representation; in the right of another 
person. 
Jure uxoris Ijuriy ;}ksor;}sl. In right of a wife.

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853 
Juridical Ijaridakall. Relating to administration of jus
tice, or office of a judge. 
Regular; done in conformity to the laws of the coun
try and the practice which is there observ ed. 
Juridical day. Day on which court is in session. Black 
v. National Bank of Kentucky, 226 Ky. 152, 10 S.W.2d 
629, 630. 
Juridicus Ijaridakas/. Lat. Relating to the courts or to 
the administration of justice; juridical; lawful. 
Juri non est consonum quod aliquis accessorius in 
curia regis convincatur antequam aliquis de facto 
fuerit attinctus Ijuray non est kons:m�m kwod relakwas 
reksasoriyas in kyuriya riyjas konvi1Jkeytar rentiykwam 
relakw�s diy frektow fyuwarat �tiIJkt�s/. It is not conso
nant to justice that any accessory should be convicted in 
the king's court before any one has been attainted of the 
fact. 
Juris Ijuras/. Lat. Of right; of law. 
Juris affectus in executione consistit Ijuras afektas in 
eksakyuwshiyowniy k�nsist�t/. The effect of the law 
consists in the execution. 
Jurisconsult Ijuraskons�lt/"k�ns�lt/. A jurist; a person 
skilled in the science of law, particularly of internation
al or public law. 
Jurisconsultus Ijurask�ns�ltas/. Lat. In Roman law, 
an expert in juridical science; a person thoroughly 
versed in the laws, who was habitually resorted to, for 
information and advice, both by private persons as his 
clients, and also by the magistrates, advocates, and 
others employed in administering justice. Abbreviated 
i-ctus. 
Jurisdictio est potestas de publico introducta, cum 
necessitate juris dicendi Ijur�sdiksh(iy)ow est patestres 
diy p�blakow intrad�kta, k�m nasesateytiy juras dasen
day/. Jurisdiction is a power introduced for the public 
good, on account of the necessity of dispensing justice. 
Jurisdiction. A term of comprehensive import embrac
ing every kind of judicial action. Federal Land Bank of 
Louisville, Ky. v. Crombie, 258 Ky. 383, 80 S.W.2d 39, 
40. It is the power of the court to decide a matter in 
controversy and presupposes the existence of a duly 
constituted court with control over the subject matter 
and the parties. Pinner v. Pinner, 33 N.C.App. 204, 234 
S.E.2d 633. Jurisdiction defines the powers of courts to 
inquire into facts, apply the law, make decisions, and 
declare judgment. Police Com'r of Boston v. Municipal 
Court of Dorchester Dist., 374 Mass. 640, 374 N.E.2d 272, 
285. The legal right by which judges exercise their 
authority. Max Ams, Inc. v. Barker, 293 Ky. 698, 170 
S.W.2d 45, 48. It exists when court has cognizance of 
class of cases involved, proper parties are present, and 
point to be decided is within powers of court. United 
Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 
762, 765. Power and authority of a court to hear and 
determine a judicial proceeding; and power to render 
particular judgment in question. In re De Camillis' 
Estate, 66 Misc.2d 882, 322 N.Y.S.2d 551, 556. The right 
JURISDICTIONAL PLEA 
and power of a court to adjudicate concerning the sub
ject matter in a given case. Biddinger v. Fletcher, 224 
Ga. 501, 162 S.E.2d 414, 416. The term may have 
different meanings in different contexts. Martin v. Lu
ther, C.A.Ill., 689 F.2d 109, 11 4. 
Areas of authority; the geographic area in which a 
court has power or types of cases it has power to hear. 
Scope and extent of jurisdiction of federal courts is 
governed by 28 U.S.C.A. § 1251 et seq. 
For Ancillary; Appellate; Concurrent; Contentious; 
Continuing; Coordinate; Criminal; Equity; Exclusive; For
eign; General; Legislative; Limited or special jurisdiction; 
Military; Pendent jurisdiction; Plenary; Primary; Probate; 
Special; Subject-matter; Summary; Territorial; and Vol
untary jurisdiction, see those titles. See also Excess of 
jurisdiction; Jurisdiction in personam; Jurisdiction in rem; 
Jurisdiction of the subject matter; Jurisdiction quasi in rem; 
Lack of jurisdiction. For original jurisdiction, see Origi
nal. For diversity jurisdiction, see Diversity of citizenship. 
For federal question jurisdiction, see Federal question 
jurisdiction. For jurisdiction over nonresidents or for
eign corporations, see Long arm statutes; Minimum con
tacts. 
Jurisdictional. Pertaining or relating to jurisdiction; 
conferring jurisdiction; showing or disclosing jurisdic
tion; defining or limiting jurisdiction; essential to juris
diction. 
Jurisdictional amount. Required amount involved in 
the particular case to give court jurisdiction, Shabotzky 
v. Massachusetts Mut. Life Ins. Co., D.C.N.Y., 21 F.Supp. 
166, 167; sum of all claims that are properly joined, 
Gray v. Blight, C.A.Colo., 11 2 F.2d 696, 700; value of the 
object sought to be attained in the litigation, Ronzio v. 
Denver & RG.W.R Co., C.C.A.U tah, 116 F.2d 604, 606. 
The jurisdiction of the trial court is commonly limited 
by the amount in controversy in the particular action; 
e.g. the requisite jurisdictional amount for diversity of 
citizenship jurisdiction in the federal district courts is 
set forth in 28 U.S.C.A. § 1332. 
Jurisdictional dispute. The competing claims made to 
an employer by different unions that each of their 
members are entitled to perform certain specific work. 
There must be evidence of a threat of coercive action for 
the N.L.RB. to conduct a hearing and make an assign
ment of the work. 
Jurisdictional facts. Those matters of fact which must 
exist before the court can properly take jurisdiction of 
the particular case, as, that the defendant has been 
properly served with process, that the amount in contro
versy exceeds a certain sum, that the parties are citizens 
of different states, etc. Noble v. Union River Logging 
Railroad Co., 147 U.S. 165, 13 S.Ct. 27 1, 37 L.Ed. 123. 
See Jurisdictional statement; Jurisdiction clause. 
Jurisdictional limits. The constitutional or statutory 
parameters within which judicial power may be exer
cised such as limits based on the monetary value of the 
action. See Jurisdictional amount. 
Jurisdictional plea. Form of answer addressed to the 
issue of whether the court has the power over the

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JURISDICTIONAL PLEA 
defendant or over the subject matter of the litigation; 
e.g. Fed.R.Civ.P. 12(b)(1), (2). 
Jurisdictional statement. In some states, a statement 
required to set forth the amount claimed to be in contro
versy so as to permit a court of general jurisdiction to 
hear the case without remanding it to an inferior court. 
See also Jurisdiction clause. 
Jurisdiction clause. A pleading which sets forth a 
claim for relief, whether an original claim, counter
claim, crossclaim, or third party claim, shall contain "a 
short and plain statement of the grounds upon which 
the court's jurisdiction depends, unless the court already 
has jurisdiction and the claim needs no new grounds to 
support it." Fed.R.Civ.P. 8(a). 
In equity practice, that part of a bill which is intended 
to give jurisdiction of the suit to the court, by a general 
averment that the acts complained of are contrary to 
equity, and tend to the injury of the complainant, and 
that he has no remedy, or not a complete remedy, 
without the assistance of a court of equity, is called the 
"jurisdiction clause." 
See also Ju risdictional statement. 
Jurisdiction in personam. Power which a court has 
over the defendant's person and which is required before 
a court can enter a personal or in personam judgment. 
Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. It may be 
acquired by an act of the defendant within a jurisdiction 
under a law by which the defendant impliedly consents 
to the personal jurisdiction of the court, e.g. operation of 
a motor vehicle on the highways of state confers juris
diction of operator and owner on courts of state. Hess v. 
Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. A 
judgment in personam brings about a merger of the 
original cause of action into the judgment and there
after the action is upon the judgment and not on the 
original cause of action. See also In personam; Jurisdic
tion over person. 
Jurisdiction in rem. Power of a court over a thing so 
that its judgment is valid as against the rights of every 
person in the thing, e.g. a judgment or decree of registra
tion of title to land. See also In rem; Jurisdiction quasi in 
rem. 
Jurisdiction of the person. See Jurisdiction in person
am. 
Jurisdiction of the subject matter. Power of a particu
lar court to hear the type of case that is then before it. 
Alfaro v. Meagher, 27 Ill.App.3d 292, 326 N.E.2d 545, 
548. Term refers to jurisdiction of court over class of 
cases to which particular case belongs, Ferree v. Ferree, 
285 Ky. 825, 149 S.W.2d 719, 721; jurisdiction over the 
nature of the cause of action and relief sought, Mid-City 
Bank & Trust Co. v. Myers, 343 Pa. 465, 23 A.2d 420, 
423; or the amount for which a court of limited jurisdic
tion is authorized to enter judgment. 
A court is without authority to adjudicate a matter 
over which it has no jurisdiction even though the court 
possesses jurisdiction over the parties to the litigation; 
e.g. a court of limited criminal jurisdiction has no power 
854 
to try a murder indictment and its judgment therein 
would be void and of no effect because it lacks subject 
matter jurisdiction. 
Jurisdiction over person. The legal power of the court 
to render a personal judgment against a party to an 
action or a proceeding. Imperial v. Hardy, La., 302 
So.2d 5, 7. See Jurisdiction in personam. 
Jurisdiction quasi in rem. The power of a court over 
the defendant's interest in property, real or personal, 
within the geographical limits of the court. The court's 
judgment or decree binds only the defendant's interest 
and not the whole world as in the case of jurisdiction in 
rem. The original cause of action is not merged in the 
judgment as in the case of a judgment predicated on 
personal jurisdiction. 
Juris et de jure I jur;)s et diy juriy I. Of law and of right. 
A presumption juris et de jure, or an irrebuttable 
presumption, is one which the law will not suffer to be 
rebutted by any counter-evidence, but establishes as 
conclusive; while a presumption juris tantum is one 
which holds good in the absence of evidence to the 
contrary, but may be rebutted. 
Juris et seisinre conjunctio Ijur;)s et siyz;)niy k;)nj�IJ(k)
sh(iy )ow I. The union of seisin or possession and the 
right of possession, forming a complete title. 2 Bl. 
Comm. 199, 311. 
Juris ignorantia est cum jus nostrum ignoramus 
Ijur;)s ign;)rrensh(iy);) est k�m j�s nostr;)m ign;)reym;)s/. 
It is ignorance of the law when we do not know our own 
rights. 
Jurisinceptor Iju.r;)s;)nsept;)r/. Lat. A student of the 
civil law. 
Jurisperitus Ijur;)sp;)rayt;)s/. Lat. Skilled or learned in 
the law. 
Juris positivi Ijur;)s poz;)tayvay/. Of positive law; a 
regulation or requirement of positive law, as distin
guished from natural or divine law. 
Juris prrecepta sunt hrec: honeste vivere; alterum 
non lredere; suum cuique tribuere Ijur;)s pr;)sept;) 
s�nt hiyk: (h)onestiy viv;)riy; olt;)r;)m non liyd;)riy; 
s(y)uw;)m k(yuw)aykwiy tr;)byuw;)riy/. These are the 
precepts of the law: To live honorably; to hurt nobody; 
to render to every one his due. 
Juris privati Ijur;)s pr;)veytay/. Of private right; sub
jects of private property. 
Jurisprudence. The philosophy of law, or the science 
which treats of the principles of positive law and legal 
relations. 
In the proper sense of the word, "jurisprudence" is the 
science of law, namely, that science which has for its 
function to ascertain the principles on which legal rules 
are based, so as not only to classify those rules in their 
proper order, and show the relation in which they stand 
to one another, but also to settle the manner in which 
new or doubtful cases should be brought under the 
appropriate rules. Jurisprudence is more a formal than

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855 
a material science. It has no direct concern with ques
tions of moral or political policy, for they fall under the 
province of ethics and legislation; but, when a new or 
doubtful case arises to which two different rules seem, 
when taken literally, to be equally applicable, it may be, 
and often is, the function of jurisprudence to consider 
the ultimate effect which would be produced if each rule 
were applied to an indefinite number of similar cases, 
and to choose that rule which, when so applied, will 
produce the greatest advantage to the community. 
For Comparative jurisprudence and Medical jurispru
dence, see those titles. For equity jurisprudence, see 
Equity. 
Jurisprudentia /jur;}spruwdensh(iy);}/. Lat. In the civ
il and common law, jurisprudence, or legal science. 
Jurisprudentia est divinarum atque humanarum re
rum notitia, justi atque injusti scientia /jur;}s
pruwdensh(iy);} est div;}ner;}m retkwiy hyuwm;}ner;}m 
rir;}m nowtish(iy);}, j�stay retkwiy inj�stay sayensh(iy);}/. 
Jurisprudence is the knowledge of things divine and 
human, the science of what is right and what is wrong. 
Jurisprudentia legis communis anglire est scientia 
socialis et copiosa /jur;}spruwdensh(iy);} liyj;}s 
k;}myUwn;}s re1)gliyiy est sayensh(iy);} sows(h)iyeyl;}s et 
kowpiy6ws;}/. The jurisprudence of the common law of 
England is a science social and comprehensive. 
Juris publici /jur;}s p�bbsay/. Of common right; of 
common or public use; such things as, at least in their 
own use, are common to all the king's subjects; as 
common highways, common bridges, common rivers, and 
common ports. 
Jurist. One who is versed or skilled in law; answering 
to the Latin '}urisperi tus" (q.v .). A judge; a legal schol
ar. 
The term is commonly applied to those who have 
distinguished themselves by their writings on legal sub
jects or to judges. 
Juristic /j;}rist;}k/. Pertaining or belonging to, or char
acteristic of, jurisprudence, or a jurist, or the legal 
profession. 
Juristic act. One designed to have a legal effect, and 
capable thereof. An act of a private individual directed 
to the origin, termination, or alteration of a right. 
Juris doctor. See J.D. 
Juris utrum /jur;}s yuwtr;}m/. In English law, an abol
ished writ which lay for the parson of a church whose 
predecessor had alienated the lands and tenements 
thereof. 
Juror. Member of jury. In addition to regular jurors, 
term includes special and alternate jurors. 
Alternate juror. Additional juror impanelled in case of 
sickness or disability of another juror; generally in 
trials of expectedly long duration. Fed.R.Civil P. 47(b). 
Juror designate. A juror who has been drawn as a 
juror. Summers v. State ex reI. Boykin, 66 Ga.App. 648, 
19 S.E.2d 28, 31. 
JURY 
Juror's book. A list of persons qualified to serve on 
juries. See also Ju ry-list. 
Jury. A certain number of men and women selected 
according to law, and sworn (jurati) to inquire of certain 
matters of fact, and declare the truth upon evidence to 
be laid before them. This definition embraces the vari
ous subdivisions of juries; as grand jury, petit jury, 
common jury, special jury, coroner's jury, sheriffs jury 
(q.v .). 
A jury is a body of persons temporarily selected from 
the citizens of a particular district, and invested with 
power to present or indict a person for a public offense, 
or to try a question of fact. See also Trier of fact. 
Advisory jury. A body of jurors impanelled to hear a 
case in which the parties have no right to a jury trial. 
The judge remains solely responsible for the findings 
and he may accept or reject the jury's verdict. Fed.R. 
Civil P. 39(c). See also Advisory jury. 
Blue ribbon jury. Jury not drawn from the community 
at large, but one selected from unusually qualified peo
ple; an exceptional jury. 
Challenge to jury. See Jury challenge. 
Common jury. The ordinary kind of jury (i.e. petit jury) 
by which issues of fact are generally tried, as distin
guished from a special jury (q.v .). 
Deadlocked jury. See Hung jury, below. 
Fair and im partial jury. See Fair and impartial jury. 
Foreign jury. A jury obtained from a county or jurisdic
tion other than that in which issue was joined. 
Grand jury. A jury of inquiry who are summoned and 
returned by the sheriff to each session of the criminal 
courts, and whose duty is to receive complaints and 
accusations in criminal cases, hear the evidence adduced 
on the part of the state, and find bills of indictment in 
cases where they are satisfied a trial ought to be had. 
They are first sworn, and instructed by the court. This 
is called a "grand jury" because it comprises a greater 
number of jurors than the ordinary trial jury or "petit 
jury." At common law, a grand jury consisted of not 
less than twelve nor more than twenty-three men. 
Body of citizens, the number of whom varies from 
state to state, whose duties consist in determining 
whether probable cause exists that a crime has been 
committed and whether an indictment (true bill) should 
be returned against one for such a crime. If the grand 
jury determines that probable cause does not exist, it 
returns a "no bill." It is an accusatory body and its 
function does not include a determination of guilt. 
Federal grand jury. Every grand jury impaneled be
fore any federal district court shall consist of not less 
than sixteen nor more than twenty-three persons. If 
less than sixteen of the persons summoned attend, they 
shall be placed on the grand jury, and the court shall 
order the marshal to summon, either immediately or 
for a day fixed, from the body of the district, and not 
from the bystanders, a sufficient number of persons to

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JURY 
complete the grand jury. 18 U.S.C.A. § 3321; Fed.R. 
Crim.P. 6. 
See also Inquest; Special grand jury. 
Hung jury. A jury which is unable to agree on a verdict 
after a suitable period of deliberation; a deadlocked 
jury. The result is a mistrial of the case. See Dynamite 
instruction. 
Impanelling of jury. See Impanel; Jury challenge. 
Impartial jury. See Impartial jury. 
Inquest jury. A jury of inquest is a body of persons 
summoned from the citizens of a particular district 
before the sheriff, coroner, or other ministerial officers, 
to inquire of particular facts. See Inquest. 
Jury instructions. See Jury instructions. 
Jury size. While at common law, and traditionally, a 
jury consisted of 12 members, there is no constitutional 
infirmity or deficiency in a jury of less than twelve; and 
it is common for state and Federal district court juries 
to consist of six persons for civil cases, instead of twelve 
(e.g. Dist. of Mass.). Colgrove v. Battin, 413 U.S. 149, 93 
S.Ct. 2448, 37 L.Ed.2d 522. Also, in federal district 
courts, and many state courts, the parties may stipulate 
that the jury shall consist of any number less than 
twelve. Fed.R.C ivil P. 48; Fed.R.Crim.P. 23. For size of 
federal grand jury, see Federal grand jury, above. 
Jury tampering. The unauthorized communication with 
a juror for the purpose of exerting improper influence. 
State v. Boudreaux, La.App., 526 So.2d 230, 233. It is 
proscribed by Federal and state statutes. Cf. 18 U.S. 
C.A. §§ 1503, 1504; N.Y. McKinney'S Penal Law 
§ 215.25. 
Petit jury. The ordinary jury for the trial of a civil or 
criminal action; so called to distinguish it from the 
grand jury. 
Polling of jury. See Polling the jury. 
Sequestration of jury. In some cases of great notoriety, 
the trial judge will order the jury to be isolated from the 
public (e.g. confined to area of hotel while trial not in 
session) for the duration of the trial to prevent tamper
ing and exposure to trial publicity. In these cases the 
jurors are always in the custody of the court. 
Special jury. A jury ordered by the court, on the motion 
of either party, in cases of unusual importance or intri
cacy. Called, from the manner in which it is constitut
ed, a "struck jury." See Striking a jury. 
At common law, a jury composed of persons above 
the rank of ordinary freeholders; usually summoned to 
try questions of greater importance than those usually 
submitted to common juries. 
Traverse jury. See Traverse. 
Trial jury. The jury participating in the trial of a given 
case; or a jury summoned and impaneled for the trial of 
a case, and in this sense a petit jury as distinguished 
from a grand jury. A body of persons returned from the 
citizens of a particular district before a court or officer 
856 
of competent jurisdiction, and sworn to try and deter
mine, by verdict, a question of fact. 
Jury-box. The place in court (strictly an inclosed place) 
where the jury sits during the trial of a cause. 
Jury challenge. Challenge for cause. In most jurisdic
tions, each party to the litigation has right to a certain 
number of peremptory challenges to jurors at the time 
of impanelling. In addition, a party has the right to 
challenge a juror by furnishing a satisfactory reason 
why such juror should not be seated such as bias or 
knowledge of the case. Unlike the peremptory chal
lenge for which no reason need be given, the party 
challenging a juror for cause must satisfy the trial judge 
that his reasons are compelling. See e.g. Fed.R.Crim.P. 
24. See also Challenge. 
Challenge to array. A challenge to the entire jury 
venire based on such grounds as systematic exclusion of 
women, blacks, young persons, etc. in the selection pro
cess. 
Peremptory challenge. A challenge to a juror at the 
time of impanelling for which no reason need be ad
vanced; in most jurisdictions each party is entitled to a 
certain number of such challenges in addition to chal
lenges for cause. See e.g. Fed.R.Crim.P. 24. 
Jury commissioner. An officer charged with the duty 
of selecting the names to be put into the jury wheel, or 
of drawing the panel of jurors for a particular term of 
court. Local official responsible for collecting lists of 
qualified prospective jurors for submission to court. 
Jury instructions. A direction given by the judge to the 
jury concerning the law of the case; a statement made 
by the judge to the jury informing them of the law 
applicable to the case in general or some aspect of it; an 
exposition or the rules or principles of law applicable to 
the case or some branch or phase of it, which the jury 
. are bound to accept and apply. Attorneys for both sides 
normally furnish judge with suggested instructions. 
Fed.R. Civil P. 51; Fed.R.Crim.P. 30. Many states and 
federal courts have model or pattern jury instructions 
which are required to be used, or substantially followed, 
by the trial judge. 
See also Alle n charge; Argum entative instruction; Cau
tionary instruction; Charge (Charge to jury); Converse 
instruction; Dynamite instruction; Formula instruction; 
Golden Rul e argument. For request for instructions, see 
Request. 
Additional instructions. If during the course of deliber
ations the jury is unclear about a particular point of law 
or aspect of the evidence it may request the court for 
additional or supplementary instructions. 
Mandatory instruction. A mandatory instruction un
equivocally charges the jury that if jurors find from 
preponderance of evidence that certain set of facts ex
ists, jurors must find for one party and against the 
other. Skaggs v. Davis, 424 N.E.2d 137, 141. Mandato
ry instructions are those which attempt to set up a 
factual situation and direct jury to a certain result and 
they are to be distinguished from instructions which

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857 
merely state propositions of law without incorporating a 
factual situation. LaNoux v. Hagar, Ind.App., 308 
N.E.2d 873, 878. 
Peremptory instruction. An instruction given by a court 
to a jury which the latter must obey implicitly; as an 
instruction to return a verdict for the defendant, or for 
the plaintiff, as the case may be. See also Mandatory 
instruction, above. 
Jury-list. A paper containing the names of jurors im
paneled to try a cause, or the names of all the jurors 
summoned to attend court. See also Jury panel. 
Jury of matrons. See Matrons, jury of. 
Jury panel. The group of prospective jurors who are 
summoned to appear on a stated day and from which a 
grand jury or petit jury is chosen. See Impanel; Jury-list. 
Jury polling. See Polling the jury. 
Jury process. The process by which a jury is summoned 
in a cause, and by which their attendance is enforced. 
See also Impanel. 
Jury questions. In general, term refers to questions of 
fact which are peculiarly within the province of the jury 
as contrasted with questions of law which must be 
decided by the judge. Term may also refer to special 
questions or interrogatories which the court may direct 
to the jury for a special verdict. Fed.R.Civil P. 49. See 
also Voir dire. 
Jury Selection and Service Act. Federal Act (1968) to 
insure non-discrimination in federal jury selection and 
service. 28 U.S.C.A. § 1861. 
Jury summation. See Closing argument. 
Jury trial. Trial of matter or cause before jury as 
opposed to trial before judge. Such right is guaranteed 
with respect to criminal cases by Art. III, Sec. 2, cl. 3 of 
U.S .Const., and with respect to "suits at common law, 
where the value in controversy shall exceed twenty 
dollars" by the Seventh Amendment. Such right is also 
preserved by rule of court (e.g. Fed.R.Civil P. 38) and by 
the Fifth Amendment which provides inter alia for 
indictment by grand jury, and the Sixth Amendment 
which contains further specifications respecting jury 
trial in criminal cases. In addition, state constitutions 
provide for right to jury trial and the Supreme Court 
has held that the Fourteenth Amendment guarantees a 
right of jury trial in all state criminal cases which
were they to be tried in federal court-would come 
within the Sixth Amendment's guarantee. Duncan v. 
Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. 
The right to "jury trial" of controverted issues implies 
a trial by an impartial and qualified jury. Alexander v. 
R. D. Crier & Sons Co., 181 Md. 415, 30 A.2d 757, 759. 
See also Trial. 
Jury wheel. Physical device or electronic system for the 
storage and random selection of the names or identify
ing numbers of prospective jurors. A machine contain
ing the names of persons qualified to serve as grand and 
JUS ACCRESCENDI 
petit jurors, from which, in an order determined by the 
hazard of its revolutions, are drawn a sufficient number 
of such names to make up the panels for a given term of 
court. 
Jurywoman. Member of a jury of matrons. 
Jus Ij�sl. Lat. In Roman law, right; justice; law; the 
whole body of law; also a right. The term is used in two 
meanings: 
1. "Jus" means "law," considered in the abstract; 
that is, as distinguished from any specific enactment, 
the science or department of learning, or quasi personi
fied factor in human history or conduct or social devel
opment, which we call, in a general sense, "the law." 
Or it means the law taken as a system, an aggregate, a 
whole; "the sum total of a number of individual laws 
taken together." Or it may designate some one particu
lar system or body of particular laws; as in the phrases 
"jus civile, " 'jus gentium, " 'jus prretorium. " 
2. In a second sense, "jus" signifies "a right;" that is, 
a power, privilege, faculty, or demand inherent in one 
person and incident upon another; or a capacity resid
ing in one person of controlling, with the assent and 
assistance of the state, the actions of another. This is 
its meaning in the expressions "jus in rem, " 'jus accres
cendi, " "jus possess ion is. " 
It is thus seen to possess the same ambiguity as the 
words "droit, " "recht," and "right" (q. v.). 
Within the meaning of the maxim that "ignorantia 
juris non excusat" (ignorance of the law is no excuse), 
the word "jus" is used to denote the general law or 
ordinary law of the land, and not a private right. 
Some further meanings of the word are: 
An action, or, rather, those proceedings in the Roman 
action which were conducted before the prretor. 
Power or authority. Sui juris, in one's own power; 
independent. Alieni juris, under another's power. 
The profession (ars) or practice of the law. Jus poni
tur pro ipsa arte. 
A court or judicial tribunal (locus in quo redditur jus). 
Jus abstinendi Ij�s rebst:m€mday/. The right of renun
ciation; the right of an heir, under the Roman law, to 
renounce or decline the inheritance, as, for example, 
where his acceptance, in consequence of the necessity of 
paying the debts, would make it a burden to him. 
Jus abutendi Ij�s reby�tenday/. The right to abuse. By 
this phrase is understood the right to do exactly as one 
likes with property, or having full dominion over proper
ty. 
Jus accrescendi Ij�s rekr�senday/. The right of surviv
orship. In re Brogan's Estate, 165 Misc. 111, 300 N.Y.S. 
447, 455. The right of the survivor or survivors of two 
or more joint tenants to the tenancy or estate, upon the 
death of one or more of the joint tenants. In re Capria's 
Estate, 89 Misc. 101, 151 N.Y.S. 385, 386. 
Jus accrescendi inter mercatores, pro beneficio com
mercii, locum non habet Ij�s rekr�s€mday int�r mclrk�
toriyz, prow ben�fis(h)(i)yow k�m�rsiyay, lowk�m non

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JUS ACTUS 
heyb�t/. The right of survivorship has no place between 
merchants, for the benefit of commerce. There is no 
survivorship in cases of partnership, as there is in joint
tenancy. 
Jus accrescendi prrefertur oneribus /j�s rekr�senday 
pr�f�rt�r ownehr�b�s/. The right of survivorship is pre
ferred to incumbrances. Hence no dower or curtesy can 
be claimed out of a joint estate. 
Jus accrescendi prrefertur ultimre voluntati /j�s 
rekr�senday pr�f�rt�r �lt�miy vol�nteytay /. The right of 
survivorship is preferred to the last will. A devise of 
one's share of a joint estate, by will, is no severance of 
the jointure; for no testament takes effect till after the 
death of the testator, and by such death the right of the 
survivor (which accrued at the original creation of the 
estate, and has therefore a priority to the other) is 
already vested. 2 Bl.Comm. 186. 
Jus actus /j�s rekt�s/. In Roman law, a rural servitude 
giving to a person a passage for carriages, or for cattle. 
Jus ad rem /j�s red rem/. A term of the civil law, 
meaning "a right to a thing;" that is, a right exercisable 
by one person over a particular article of property in 
virtue of a contract or obligation incurred by another 
person in respect to it, and which is enforceable only 
against or through such other person. It is thus distin
guished from jus in re, which is a complete and absolute 
dominion over a thing available against all persons. 
Mire v. Sunray DX Oil Co., D.C.La., 285 F.Supp. 885, 
889. 
The disposition of writers is to use the term "jus ad 
rem " as descriptive of a right without possession, and 
"jus in re" as descriptive of a right accompanied by 
possession. Or, in a somewhat wider sense, the former 
denotes an inchoate or incomplete right to a thing; the 
latter, a complete and perfect right to a thing. The 
Carlos F. Roses, 177 U.S. 655, 20 S.Ct. 803, 44 L.Ed. 929. 
In canon law, a right to a thing. An inchoate and 
imperfect right, such as is gained by nomination and 
institution; as distinguished from jus in re or complete 
and full right, such as is acquired by corporal possession. 
2 Bl.Comm. 312. 
Jus lElianum /j�s iyliyeyn�m/. A body of laws drawn 
up by Sextus lElius, and consisting of three parts, where
in were explained, respectively: (1) The laws of the 
Twelve Tables; (2) the interpretation of and decisions 
upon such laws; and (3) the forms of procedure. In 
date, it was subsequent to the jus Flavianum (q. v.). 
Jus requum /j�s iykw�m/. A term used by the Romans 
to express the adaptation of the law to the circumstanc
es of the individual case as opposed to jus strictum (q. v.). 
Jus resnecire /j�s �sniys(h)iyiy/. The right of primo
geniture (q. v.). 
Jus albinatus /j�s relb�neyt�s/. The droit d'aubaine 
(q. v.). See Albinatus jus. 
Jus angarire /j;)S reI)geriyiy/. See Angaria; Angary, right 
of. 
858 
Jus aqureductus /j�s rekw�d�kt�s/. In the civil law, the 
name of a servitude which gives to the owner of land the 
right to bring down water through or from the land of 
another. 
Jus aqure haustus /j�s rekwiy h6st�s/. In Roman law, a 
rural servitude giving to a person a right of watering 
cattle on another's field, or of drawing water from 
another's well. 
Jus banci /j�s brensay/. In old English law, the right of 
bench. The right or privilege of having an elevated and 
separate seat of judgment, anciently allowed only to the 
king's judges, who hence were said to administer high 
justice (summam administrant justitiam). 
Jus belli /j�s belay/. The law of war. The law of 
nations as applied to a state of war, defining in particu
lar the rights and duties of the belligerent powers them
selves, and of neutral nations. That which may be done 
without injustice with regard to an enemy. 
Jus bellum dicendi /j�s bel�m d�senday/. The right of 
proclaiming war. 
Jus canonicum /j�s k�n6n�k�m/. The canon law. 
Jus civile /j�s siv�liy/. Civil law. The system of law 
peculiar to one state or people. Particularly, in Roman 
law, the civil law of the Roman people, as distinguished 
from the jus gentium. The term is also applied to the 
body of law called, emphatically, the "civil law." See 
also Civil law. 
The jus civile and the jus gentium are distinguished in 
this way. All people ruled by statutes and customs use 
a law partly peculiar to themselves, partly common to 
all men. The law each people has settled for itself is 
peculiar to the state itself, and is called "jus civile, " as 
being peculiar to that very state. The law, again, that 
natural reason has settled among all men,-the law that 
is guarded among all peoples quite alike,-is called the 
"jus gentium, " and all nations use it as if law. The 
Roman people, therefore, use a law that is partly pecu
liar to itself, partly common to all men. 
But this is not the only, or even the general, use of the 
words. What the Roman jurists had chiefly in view, 
when they spoke of "jus civile, "was not local as opposed 
to cosmopolitan law, but the old law of the city as 
contrasted with the newer law introduced by the prretor 
(jus prretorium, jus honorarium ). Largely, no doubt, the 
jus gentium corresponds with the jus prretorium; but the 
correspondence is not perfect. 
Jus civile est quod sibi populus constituit /j�s siv�liy 
est kw6d sibay p6py�bs k�nstit(y)uw�t/. The civil law is 
what a people establishes for itself. 
Jus civitatus /j�s siv�teyt�s/. The right of citizenship; 
the freedom of the city of Rome. It differs from jus 
quiritium, which comprehended all the privileges of a 
free native of Rome. The difference is much the same 
as between "denization" and "naturalization". 
Jus cloacre /j;)S kloweysiyrkl6w�siy/. In the civil law, 
the right of sewerage or drainage. An easement consist
ing in the right of having a sewer, or of conducting

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859 
surface water, through the house or over the ground of 
one's neighbor. 
Jus commune Ij�s k�myuwniy/. In the Civil law, com
mon right; the common and natural rule of right, as 
opposed to jus singulare (q.v .). 
In English law, the common law, answering to the 
Saxon "folcright." 
Jus constitui oportet in his qure ut plurimum acci
dunt non qure ex inopinato Ij�s k�nstityuway �port�t 
in his kwiy �t plur�m�m reks�d�nt non kwiy eks 
inop�neytow I. Laws ought to be made with a view to 
those cases which happen most frequently, and not to 
those which are of rare or accidental occurrence. 
Jus coronre Ij�s k�rowniy/. In English law, the right of 
the crown, or to the crown; the right of succession to the 
throne. 
Jus cudendre monetre Ij�s k�dendiy m�niytiy/. In old 
English law, the right of coining money. 
Jus curialitatis Ij�s kyuriyrel�teyt�s/. In English law, 
the right of curtesy. 
Jus dare Ij�s deriy/. To give or to make the law; the 
function and prerogative of the legislative department. 
Jus deliberandi Ij�s d�lib�rrenday/. In the civil law 
the right of deliberating. A term granted by the proper 
officer at the request of him who is called to the inheri
tance (the heir), within which he has the right to investi
gate its condition and to consider whether he will accept 
or reject it. 
Jus descendit, et non terra Ij�s d�send�t, et non tehr�/. 
A right descends, not the land. 
Jus devolutum Ij�s d�v�l(y)uwt�m/. The right of the 
church of presenting a minister to a vacant parish, in 
case the patron shall neglect to exercise his right within 
the time limited by law. 
Jus dicere Ij�s days�riy/. To declare the law; to say 
what the law is. The province of a court or judge. 
Jus dicere, et non jus dare Ij�s days�riy, et non j�s 
deriy/. To declare the law, not to make it. 
Jus disponendi Ij�s disp�nenday/. The right of dispos
ing. An expression used either generally to signify the 
right of alienation, as when we speak of depriving a 
married woman of the jus disponendi over her separate 
estate, or specially in the law relating to sales of goods, 
where it is often a question whether the vendor of goods 
has the intention of reserving to himself the jus dispo
nendi; i.e., of preventing the ownership from passing to 
the purchaser, notwithstanding that he (the vendor) has 
parted with the possession of the goods. 
Jus distrahendi Ij�s distr�henday/. The right of sale of 
goods pledged in case of non-payment. See Distress; 
Pledge. 
Jus dividendi Ij�s div�denday/. The right of disposing 
of realty by will. 
JUS GENTIUM 
Jus duplicatum Ij�s d(y)uwpbkeyt�m/. A double right; 
the right of possession united with the right of property; 
otherwise called "droit-droit. " 2 Bl.Comm. 199. 
Jus edicere or jus edicendi Ij�s �days�riy/j�s iyd�sen
day/. The right to issue edicts. It belonged to all the 
higher magistrates, but special interest is attached to 
the prretorian edicts in connection with the history of 
Roman law. 
Jus est ars boni et requi Ij�s est arz bownay et iykway/. 
Law is the science of what is good and just. 
Jus est norma recti; et quicquid est contra normam 
recti est injuria Ij�s est norm� rektay, et kwi(d)kwid est 
kontr� norm�m rektay est ;mjur(i)y�/. Law is a rule of 
right; and whatever is contrary to the rule of right is an 
injury. 
Jus et fraus nunquam cohabitant Ij�s et fros n�IJkw�m 
kowhreb�t�ntl. Right and fraud never dwell together. 
Jus ex injuria non oritur Ij�s eks �njur(i)y� non or�t�r/. 
A right does (or can) not rise out of a wrong. 
Jus ex non scripto Ij�s eks non skriptow/. Law consti
tuted by custom or such usage as indicates the tacit 
consent of the community. 
Jus falcandi Ij�s fOlkrenday/. The right of mowing or 
cutting. The right of cutting wood. 
Jus feciale Ij�s fes(h)iyeyliy/. In Roman law, the law of 
arms, or of heralds. A rudimentary species of interna
tional law founded on the rites and religious ceremonies 
of the different peoples. 
Jus fiduciarium Ij�s f�d(y)uws(h)iyer�m/. In the civil 
law, a right in trust; as distinguished from jus legiti
mum, a legal right. 2 Bl.Comm. 328. 
Jus fluminum Ij�s fl(y)uwm�n�m/. In the civil law, the 
right to the use of rivers. 
Jus fodiendi Ij�s fo(w)diyenday/. In the civil and old 
English law, a right of digging on another's land. 
Jus futurum Ij�s fy�tyUr;}m/. In the civil law, a future 
right; an inchoate, incipient, or expectant right, not yet 
fully vested. It may be either "jus delatum," when the 
subsequent acquisition or vesting of it depends merely 
on the will of the person in whom it is to vest, or 'Jus 
nondum delatum, " when it depends on the future occur
rence of other circumstances or conditions. 
Jus gentium Ij�s jensh(iy)�m/. The law of nations. 
That law which natural reason has established among 
all men is equally observed among all nations, and is 
called the "law of nations," as being the law which all 
nations use. Although this phrase had a meaning in the 
Roman law which may be rendered by our expression 
"law of nations," it must not be understood as equiva
lent to what we now call "international law," its scope 
being much wider. It was originally a system of law, or 
more properly equity, gathered by the early Roman 
lawyers and magistrates from the common ingredients 
in the customs of the old Italian tribes,-those being the 
nations, gentes, whom they had opportunities of observ
ing,-to be used in cases where the jus civile did not

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JUS GENTIUM 
apply; that is, in cases between foreigners or between a 
Roman citizen and a foreigner. The principle upon 
which they proceeded was that any rule of law which 
was common to all the nations they knew of must be 
intrinsically consonant to right reason, and therefore 
fundamentally valid and just. From this it was an easy 
transition to the converse principle, viz., that any rule 
which instinctively commended itself to their sense of 
justice and reason must be a part of the jus gentium. 
And so the latter term came eventually to be about 
synonymous with "equity" (as the Romans understood 
it), or the system of prretorian law. 
Jurists frequently employed the term "jus gentium 
priv atum" to denote private international law, or that 
subject which is otherwise styled the "conflict of laws"; 
and "jus gentium publicum " for public international 
law, or the system of rules governing the intercourse of 
nations with each other as persons. 
Jus gladii /j;}S glrediyay/. The right of the sword; the 
executory power of the law; the right, power, or prerog
ative of punishing for crime. 4 Bl.Comm. 177. 
Jus habendi /j;}S h�benday/. The right to have a thing. 
The right to be put in actual possession of property. 
Jus habendi et retinendi /j;}S h�b€mday et ret�nenday/. 
A right to have and to retain the profits, tithes, and 
offerings, etc., of a rectory or parsonage. 
Jus hrereditatis /j;}S h�red�teyt�s/. The right of inheri
tance. 
Jus hauriendi /j;}S hohriyenday/ . In the civil and old 
English law, the right of drawing water. 
Jus honorarium /j;}S (h)on�reriy�m/. The body of Ro
man law, which was made up of edicts of the supreme 
magistrates, particularly the prretors. 
Jus honorum /j;}S (h)�n6r�m/. In Roman law, the right 
of holding offices. See Jus suffragii. 
Jus imaginis /j;}S �mrej�n�s/. In Roman law, the right 
to use or display pictures or statues of ancestors; some
what analogous to the right, in English law, to bear a 
coat of arms. 
Jus immunitatis /j;}S �myuwn�teyt�s/. In the civil law, 
the law of immunity or exemption from the burden of 
public office. 
Jus incognitum /j;}S ink6gn�t�m/. An unknown law. 
This term is applied by the civilians to obsolete laws. 
Jus individuum /j;}S ind�vidyuw�m/. An individual or 
indivisible right; a right incapable of division. 
Jus in personam /j;}S in p�rs6wn�m/. A right against a 
person; a right which gives its possessor a power to 
oblige another person to give or procure, to do or not to 
do, something. 
Jus in re /j;)S in riy/. A right in a thing. Denver Joint 
Stock Land Bank of Denver v. Dixon, 57 Wyo. 523, 122 
P.2d 842, 847. A right existing in a person with respect 
to an article or subject of property, inherent in his 
860 
relation to it, implying complete ownership with posses
sion, and available against all the world. 
See Jus ad rem. 
Jus in re aliena /j;}S in riy eyliyiyn�/. An easement on 
servitude, or right in, or arising out of, the property of 
another. 
Jus in re inhrerit ossibus usufructuarii /j;)S in riy 
inhir�t 6s�b�s yuwz(h)uwfr;)kteriyay /. A right in the 
thing cleaves to the person of the usufructuary. 
Jus in re propria /j;)S in riy pr6wpriy�/. The right of 
enjoyment which is incident to full ownership or proper
ty, and is often used to denote the full ownership or 
property itself. It is distinguished from jus in re aliena, 
which is a mere easement or right in or over the 
property of another. 
Jus italicum /j;}S �trel�k�m/. A term of the Roman law 
descriptive of the aggregate of rights, privileges, and 
franchises possessed by the cities and inhabitants of 
Italy, outside of the city of Rome, and afterwards extend
ed to some of the colonies and provinces of the empire, 
consisting principally in the right to have a free consti
tution, to be exempt from the land tax, and to have the 
title to the land regarded as Quiritarian property. 
Jus itineris /j;}S aytin�r�s/. In Roman law, a rural 
servitude giving to a person the right to pass over an 
adjoining field, on foot or horseback. 
Jus jurandi forma verbis differt, re convenit; hunc 
enim sensum habere debet: ut deus invocetur /j;)S 
j�rrenday f6rm� v;}rb�s dif�rt, riy k�nviyn�t; h;}IJk iy�m 
sens�m h�biriy deb�t: ;)t diy�s inv�siyt�r/. The form of 
taking an oath differs in language, agrees in meaning; 
for it ought to have this sense; that the deity is invoked. 
Jus jurandum /j;}S j�rrend�m/. Lat. An oath. 
Jus jurandum inter alios factum nec nocere neo 
prodesse debet /j;}S j�rrend�m int�r reliyows frekt�m nek 
n�siriy nek pr�desiy deb�t1. An oath made between 
others ought neither to hurt nor profit. 
Jus Latii /j;}S leyshiyay/. In Roman law, the right of 
Latium or of the Latins. 
The principal privilege of the Latins seems to have 
been the use of their own laws, and their not being 
subject to the edicts of the prretor, and that they had 
occasional access to the freedom of Rome, and a partic
ipation in her sacred rites. 
Jus Latium /j;)S leysh(iy)�m/. In Roman law, a rule of 
law applicable to magistrates in Latium. It was either 
majus Latium or minus Latium,-the majus Latium 
raising to the dignity of Roman citizen not only the 
magistrate himself, but also his wife and children; the 
minus Latium raising to that dignity only the magis
trate himself. 
Jus legitimum /j;}S l:ljit�m�m/. A legal right. In the 
civil law, a right which was enforceable in the ordinary 
course of law.

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861 
Jus liberorum Ij.,s Hb;)ror;)m/. In Roman law, the privi
lege conferred upon a woman who had three or four 
children. 
Jus mariti Ij.,s mrer;)tay/. The right of a husband; 
especially the right which a husband acquires to his 
wife's movable estate by virtue of the marriage. 
Jus merum Ij.,s mir;)m/. In old English law, mere or 
bare right; the mere right of property in lands, without 
either possession or even the right of possession. 
Jus moribus constitutum Ij.,s mor;)b;)s konst;:)tyuwbm/. 
See Jus ex non scripto. 
Jus naturre Ij.,s n;:)tyuriy/. The law of nature. See Jus 
naturale. 
Jus naturale Ij.,s mHy;:)reyliy/. The natural law, or law 
of nature; law, or legal principles, supposed to be dis
coverable by the light of nature or abstract reasoning, or 
to be taught by nature to all nations and men alike; or 
law supposed to govern men and peoples in a state of 
nature, i.e., in advance of organized governments or 
enacted laws. See Natural law. 
This concept originated with the philosophical jurists 
of Rome, and was gradually extended until the phrase 
came to denote a supposed basis or substratum common 
to all systems of positive law, and hence to be found, in 
greater or less purity, in the laws of all nations. And, 
conversely, they held that if any rule or principle of law 
was observed in common by all peoples with whose 
systems they were acquainted, it must be a part of the 
jus naturale, or derived from it. Thus the phrases "jus 
naturale" and "jus gentium " came to be used inter
changeably. 
Jus naturale est quod apud homines eandem habet 
potentiam Ij.,s mHy;:)reyliy est kwod rep;:)d hom;:)niyz 
iyrend;:)m heyb;:)t p;:)tensh(iy);:)m/. Natural right is that 
which has the same force among all mankind. 
Jus navigandi Ij.,s nrev;:)grenday/. The right of navigat
ing or navigation; the right of commerce by ships or by 
sea. 
Jus necis Ij.,s niys;:)sl. In Roman law, the right of death, 
or of putting to death. A right which a father anciently 
had over his children. See Jus vitre necisque. 
Jus non habenti tute non paretur Ij.,s non h;:)bentay 
t(y)uwtiy non p;:)riyt;:)r/. One who has no right cannot 
be safely obeyed. 
Jus non patitur ut idem bis solvatur Ij.,s non pret;:)t;:)r 
�t ayd;:)m bis solveyt;:)r/. Law does not suffer that the 
same thing be twice paid. 
Jus non sacrum Ij.,s non srekr;:)m/. In Roman law, that 
portion of the jus publicum which regulated the duties 
of magistrates. 
Non-sacred law; that which dealt with the duties of 
civil magistrates, the preservation of public order, and 
the rights and duties of persons in their relation to the 
state. It was analogous to that which would now be 
called the police power. 
JUS PRECARIUM 
Jus non scriptum Ij.,s non skript;)m/. The unwritten 
law. 
Jus offerendi Ij.,s Of;)renday/. In Roman law, the right 
of subrogation, that is, the right of succeeding to the lien 
and priority of an elder creditor on tendering or paying 
into court the amount due to him. 
Jus oneris ferendi Ij.,s own;:)r;:)s f;:)renday/. An urban 
servitude in the Roman law, the owner of which had the 
right of supporting and building upon the house wall of 
another. 
Jus pascendi Ij.,s presenday/. In the civil and old Eng
lish law, the right of pasturing cattle. 
Jus patronatus Ij.,s pretr;:)neyt;:)sl. In English ecclesias
tical law, the right of patronage; the right of presenting 
a clerk to a benefice. 
A commission from the bishop, where two presenta
tions are offered upon the same avoidance, directed 
usually to his chancellor and others of competent learn
ing, who are to summon a jury of six clergymen and six 
laymen to inquire into and examine who is the rightful 
patron. 3 BLComm. 246. 
Jus personarum Ij.,s p�rs;:)ner;:)m/. Rights of persons. 
Those rights which, in the civil law, belong to persons as 
such, or in their different characters and relations; as 
parents and children, masters and servants, etc. 
Jus prenitendi Ij.,s pen;:)tenday/. In Roman law, the 
right of rescission or revocation of an executory contract 
on failure of the other party to fulfill his part of the 
agreement. 
Jus portus Ij.,s port ;:)sl. In maritime law, the right of 
port or harbor. 
Jus possessionis Ij.,s p;:)zeshiyown;:)sl. The right of pos
session. 
Jus possidendi Ij.,s pos;:)denday/. The right of possess
ing, which is the legal consequence of ownership. It is 
to be distinguished from the jus possession is (q. v.), which 
is a right to possess which may exist without ownership. 
Jus postliminii Ij.,s powstl;:)miniyay/. In the civil law, 
the right of postliminy; the right or claim of a person 
who had been restored to the possession of a thing, or to 
a former condition, to be considered as though he had 
never been deprived of it. 
In International law, the right by which property 
taken by an enemy, and recaptured or rescued from him 
by the fellow-subjects or allies of the original owner, is 
restored to the latter upon certain terms. 
Jus prresens Ij.,s priyzenz/. In the civil law, a present 
or vested right; a right already completely acquired. 
Jus prretorium Ij.,s pr;:)toriy;:)m/. In the civil law, the 
discretion of the prretor, as distinct from the leges, or 
standing laws. 3 BLComm. 49. That kind of law which 
the prretors introduced for the purpose of aiding, supply
ing, or correcting the civil law, for the public benefit. 
Called, also 'Jus honorari um " (q. v.). 
Jus precarium Ij.,s pr;:)keriy;:)m/. In the civil law, a 
right to a thing held for another, for which there was no

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JUS PRECARIUM 
remedy by legal action, but only by entreaty or request. 
2 Bl.Comm. 328. 
Jus presentationis /j�s prez;mteyshiy6wn�s/. The right 
of presentation. 
Jus privatum /j�s pr�veyt�m/. Private law; the law 
regulating the rights, conduct, and affairs of individuals, 
as distinguished from "public" law, which relates to the 
constitution and functions of government and the ad
ministration of criminal justice. The right of a person 
acquiring title to lands under navigable waters to fill in 
such lands, making upland out of foreshore, and thus 
extinguishing jus publicum, subject to right of sovereign 
to make public improvements on tide water for benefit 
of commerce. Arnold's Inn, Inc. v. Morgan, 63 Misc.2d 
279, 310 N.Y.S.2d 541, 547. 
Also private ownership, or the right, title, or dominion 
of a private owner, as distinguished from "jus publi
cum, " which denotes public ownership, or the ownership 
of property by the government, either as a matter of 
territorial sovereignty or in trust for the benefit and 
advantage of the general public. In this sense, a state 
may have a double right in given property, e.g., lands 
covered by navigable waters within its boundaries, in
cluding both "jus publicum, " a sovereign or political 
title, and 'Jus privatum, " a proprietary ownership. 
Jus projiciendi /j�s pr�jis(h)iyenday/. In the civil law, 
the name of a servitude which consists in the right to 
build a projection, such as a balcony or gallery, from 
one's house in the open space belonging to one's neigh
bor, but without resting on his house. 
Jus proprietatis /j�s pr�pray�teyt�s/. The right of 
property, as distinguished from the jus possession is or 
right of possession. 
Jus protegendi /j�s prowt�jenday/. In the civil law, the 
name of a servitude. It is a right by which a part of the 
roof or tiling of one house is made to extend over the 
adjoining house. 
Jus protimeseos /j�s prowt�miysiyos/. The right of 
pre-emption of a landlord in case the tenant wishes to 
dispose of his rights as a perpetual lessee. Pactum 
protimeseos was the right of pre-emption to the seller; 
i.e. in case the buyer should sell, he must sell to the 
former seller. 
Jus publicum /j�s p�bl�k�m/. Public law, or the law 
relating to the constitution and functions of government 
and its officers and the administration of criminal jus
tice. Also public ownership, or the paramount or sover
eign territorial right or title of the state or government. 
The right shared by all to navigate on waters covering 
foreshore at high tide and, at low tide, to have access 
across foreshore to waters for fishing, bathing or any 
other lawful purpose. Arnold's Inn, Inc. v. Morgan, 63 
Misc.2d 279, 310 N.Y.S.2d 541. See Jus privatum. 
It implies a right in a sovereign or public capacity to 
be exercised for the interest or benefit of the state or the 
public, as distinguished from the exercise in a proprie
tary capacity of a right of the sovereign or a right 
possessed by an individual in common with the public. 
862 
Sovereign's right of jurisdiction and dominion for gov
ernmental purposes over all lands and waters within its 
territorial limits, including tidal waters and their bot
toms, is sometimes termed "jus publicum. " 
Jus publicum et privatum quod ex naturalibus 
prreceptis aut gentium aut civilibus est collectum.; 
et quod in jure scripto jus appellatur, id in lege 
Anglire rectum esse dicitur /j�s p�bl�k�m et pr�veyt�m 
kwod eks mHy�reyl�b�s pr�sept�s ot jensh(iy)�m ot 
s�vil�b�s est k�lekt�m, et kw6d in juriy skriptow j�s 
rep�leyt�r, id in liyjiy rengliyiy rekt�m esiy dis�t�r/. 
Public and private law is that which is collected from 
natural principles, either of nations or in states; and 
that which in the civil law is called 'Jus," in the law of 
England is said to be "right." 
Jus publicum privatorum pactis mutari non potest 
/j�s p�bl�k�m prayv�t6r�m prekt�s myuwteray non 
p6wt�st/. A public law or right cannot be altered by the 
agreements of private persons. 
Jus quresitum /j�s kw�zayt�m/. A right to ask or recov
er; for example, in an obligation there is a binding of 
the obligor, and a jus quresitum in the obligee. 
Jus quiritium /j�s kw�raysh(iy)�m/. The old law of 
Rome, that was applicable originally to patricians only, 
and, under the Twelve Tables, to the entire Roman 
people, was so called, in contradistinction to the jus 
prretorium (q.v.), or equity. 
Jus recuperandi /j�s r�k(y)uwp�rrenday/. The right of 
recovering [lands]. 
Jus representationis /j�s repr�zenteyshiy6wn�s/. The 
right of representing or standing in the place of another, 
or of being represented by another. 
Jus rerum /j�s rir�m/. The law of things. The law 
regulating the rights and powers of persons over things; 
how property is acquired, enjoyed, and transferred. 
Jus respicit requitatem /j�s resp�s�t ekw�teyt�m/. Law 
regards equity. 
Jus sacrum /j�s srekr�m/. In Roman law, that portion 
of the public law which was concerned with matters 
relating to public worship and including the regulation 
of sacrifices and the appointment of priests. There was 
a general division of the jus publicum into jus sacrum 
and jus non sacrum (q. v.). 
Jus sanguinis /j�s srelJgw�n�s/. The right of blood. The 
principle that a person's citizenship is determined by the 
citizenship of the parents. See Jus soli. 
Jus scriptum /j�s skript�m/. In English law, written 
law, or statute law, otherwise called "lex scripta," as 
distinguished from the common law, "lex non scripta." 
1 Bl.Comm. 62. 
In Roman law, all law that was actually committed to 
writing, whether it had originated by enactment or by 
custom, in contradistinction to such parts of the law of 
custom as were not committed to writing. 
Jus singulare /j�s silJgy�leriy/. In the civil law, a 
peculiar or individual rule, differing from the jus com-

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863 
mu ne, or common rule of right, and established for some 
special reason. 
Jus soli Ij;)s s6wlay/. The law of the place of one's birth 
as contrasted with jus sanguinis, the law of the place of 
one's descent or parentage. The principle that a per
son's citizenship is determined by place of birth rather 
than by the citizenship of one's parents. It is of feudal 
origin. 
Jus spatiandi Ij;)s speyshiyrenday/. A right of way over 
land by the public by uses merely for the purposes of 
recreation and instruction. 
Jus stapulre Ij;)s steypy;}liy/. In old European law, the 
law of staple; the right of staple. A right or privilege of 
certain towns of stopping imported merchandise, and 
compelling it to be offered for sale in their own markets. 
Jus stillicidii vel fluminis recipiendi Ij;}s stil;}sidiyay 
vel fl(y)uwm;}n;}s r;}sipiyenday/. In Roman law, an ur
ban servitude giving the owner a right to project his roof 
over the land of another or to open a house drain upon 
it. 
Jus strictum Ij;}s strikt;}m/. Strict law; law interpreted 
without any modification, and in its utmost rigor. 
Jus suffragii Ij;}s sMreyjiyay/. In Roman law, the right 
of voting. This and the jus honorum (q.v .) were the 
public rights of the Roman citizen. 
Jus superveniens auctori accrescit successori Ij;}s
s(y)uwp;}rviyn(i)yenz oktoray ;}kres;}t s�kses6ray/. A 
right growing to a possessor accrues to the successor. 
Just. Conforming to or consonant with what is legal or 
lawful; legally right; lawful. National Surety Corpora
tion v. Mullins, 262. Ky. 465, 90 S.W.2d 707, 708. Cor
rect, true, due. Wisdom v. Board of Sup'rs of Polk 
County, 236 Iowa 669, 19 N.W.2d 602, 606. Equitable. 
Carter v. Carter, 181 Okl. 204, 73 P.2d 404, 405. Rea
sonable. National Surety Corporation v. Mullins, 262 
Ky. 465, 90 S.W.2d 707, 708. Right; in accordance with 
law and justice. See also Equitable. 
Justa causa Ij;}st;} k6z;}/. In the civil law, a just cause; 
a lawful ground; a legal transaction of some kind. 
Just cause. A cause outside legal cause, which must be 
based on reasonable grounds, and there must be a fair 
and honest cause or reason, regulated by good faith. 
Dubois v. Gentry, 182 Tenn. 103, 184 S.W.2d 369, 371. 
Fair, adequate, reasonable cause. In re Municipal Ga
rage in and for City of Utica, 141 Misc. 15, 252 N.Y.S. 
18, 32. Legitimate cause; legal or lawful ground for 
action; such reasons as will suffice in law to justify the 
action taken. Boston Elevated Ry. Co. v. Common
wealth, 310 Mass. 528, 39 N.E.2d 87, 11 2, 124. As used 
in statutory sense is that which to an ordinary intelli
gent person is justifiable reason for doing or not doing a 
particular act. Daugherty v. Admr., Bureau of Employ
ment Services, 21 Ohio App.3d 1, 486 N.E.2d 242, 243, 21 
O.B.R. 1. See Cause of action. 
Under provision that no license shall be revoked with
out "just cause," the words imply that charges should be 
made and notice of hearing given and an opportunity to 
JUST COMPENSATION 
be heard afforded. Carroll v. California Horse Racing 
Board, 16 Ca1.2d 164, 105 P.2d 110, 111. 
Just cause of provocation. That which will constitute 
the homicide murder in the second degree, as distin
guished from a lawful provocation, which will reduce it 
to manslaughter. State v. McCracken, 341 Mo. 697, 108 
S.W.2d 372, 376. 
Just compensation. Compensation which is fair to both 
the owner and the public when property is taken for 
public use through condemnation (eminent domain). 
Consideration is taken of such criteria as the cost of 
reproducing the property, its market value, and the 
resulting damage to the remaining property of the own
er. The Fifth Amendment to the U.S. Constitution 
provides that no private property shall be taken for 
public use, without "just compensation." Within Fifth 
Amendment provision that private property shall not be 
taken for public use without just compensation, "just 
compensation" means the full monetary equivalent of 
the property taken. U. S. v. Reynolds, Ky., 397 U.S. 14, 
90 S.Ct. 803, 805, 25 L.Ed.2d 12. 
As regards property taken for public use, the term is 
comprehensive and includes all elements, Jacobs v. U. 
S., Ala., 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142; Metropol
itan Water Dist. of Southern California v. Adams, 16 
Cal.2d 676, 107 P.2d 618, 621, but does not exceed 
market value. U. S. v. Waterhouse, C.C.A. Hawaii, 132 
F.2d 699, 703. It means a settlement which leaves one 
no poorer or richer than he was before the property was 
taken. U. S. ex reI. Tennessee Valley Authority v. 
Indian Creek Marble Co., D.C.Tenn., 40 F.Supp. 811, 818, 
819. Adequate compensation. State v. Hale, Tex.Civ. 
App., 96 S.W.2d 135, 141. Fair market value. Cameron 
Development Co. v. United States, C,C.A.Fla., 145 F.2d 
209, 210. Full and perfect equivalent of the property 
taken. U. S. v. 2.4 Acres of Land, More or Less, in Lake 
County, Ill., C.C.A.Ill., 138 F.2d 295, 297. It is the fair 
market value of property taken at time of taking, Dan
forth v. U. S., Mo., 308 U.S. 271, 60 S.Ct. 231, 236, 84 
L.Ed. 240; plus compensation for delay in payment, 
Kieselbach v. Commissioner of Internal Revenue, 317 
U.S. 399, 63 S.Ct. 303, 305, 87 L.Ed. 358; or consequen
tial damages to the owner, In re Board of Water Supply 
of City of New York, 277 N.Y. 452, 14 N.E.2d 789; or 
value of use of property from date of taking possession 
to date of judgment if possession is taken by condemnor 
prior to judgment. Los Angeles County Flood Control 
Dist. v. Hansen, 48 Cal.App.2d 314, 119 P.2d 734, 735. 
It requires that the owner be put in as good position 
pecuniarily as he would otherwise have been if the 
property had not been taken. Almota Farmers Elevator 
& Warehouse Co. v. U.S., Wash., 93 S.Ct. 791, 794, 409 
U.S. 470. Interest is recoverable in eminent domain 
proceedings as part of "just compensation" when pay
ment is not contemporaneous with the taking. New 
Hampshire Water Resources Bd. v. Pera, 108 N.H. 18, 
226 A.2d 774, 775, 776. Market value at time of taking; 
i.e. highest price for which property considered at its 
best and most profitable use can be sold in open market 
by willing seller to willing buyer, neither acting under

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JUST COMPENSATION 
compulsion and both exercising reasonable judgment. 
State Highway Commission v. American Memorial 
Parks, Inc., 82 S.D. 231, 144 N.W.2d 25, 27. See also 
Adequate compensation; Similar sales. 
On government's cancellation of contract, "just com
pensation" recoverable consists of such sum as in court's 
judgment will fairly compensate contractor. Enright v. 
U. S., 73 Ct.Cl. 416, 54 F.2d 182, 190. It is the value of 
contract at time of cancellation, not profits which it 
would have produced. De Laval Steam Turbine Co. v. 
U. S., 284 U.S. 61, 52 S.Ct. 78, 79, 76 L.Ed. 168. 
Just debts. As used in a will or a statute, this term 
means legal, valid, and incontestable obligations, not 
including such as are barred by the statute of limita
tions or voidable at the election of the party. Jones' 
Ex'r v. Jones, 275 Ky. 753, 122 S.W.2d 779, 780. 
Jus tertii /j�s t�rshiyay/. The right of a third party. 
A tenant, bailee, etc., who pleads that the title is in 
some person other than his landlord, bailor, etc., is said 
to set up a jus tertii. Dempsey Oil & Gas Co. v. Citizens' 
Nat. Bank, 110 Okl. 39, 235 P. 1104, 1107. 
Jus testamentorum pertinet ordinario /j�s tes
t;)mentor;)m p�rt;)n;)t ord;)neriyow /. The right of testa
ments belongs to the ordinary. 
Justice, v. To do justice, to see justice done; to summon 
one to do justice. 
Justice, n. Title given to judges, particularly to judges 
of U.S. and state supreme courts, and as well to judges 
of appellate courts. The U.S. Supreme Court, and most 
state supreme courts are composed of a chief justice and 
several associate justices. 
Proper administration of laws. In jurisprudence, the 
constant and perpetual disposition of legal matters or 
disputes to render every man his due. 
Commutative justice concerns obligations as between 
persons (e.g., in exchange of goods) and requires propor
tionate equality in dealings of person to person; Distrib
utive justice concerns obligations of the community to 
the individual, and requires fair disbursement of com
mon advantages and sharing of common burdens; Social 
justice concerns obligations of individual to community 
and its end is the common good. 
In Feudal law, jurisdiction; judicial cognizance of 
causes or offenses. High justice was the jurisdiction or 
right of trying crimes of every kind, even the highest. 
This was a privilege claimed and exercised by the great 
lords or barons of the middle ages. Low justice was 
jurisdiction of petty offenses. 
See also Miscarriage of justice; Obstructing justice. 
Justice Department. One of the executive departments 
of the federal government, headed by the Attorney Gen
eral. The chief purposes of the Department of Justice 
are to enforce the federal laws, to furnish legal counsel 
in federal cases, and to construe the laws under which 
other departments act. It conducts all suits in the 
Supreme Court in which the United States is concerned, 
supervises the federal penal institutions, and investi
gates and detects violations against federal laws. It 
864 
represents the government in legal matters generally, 
rendering legal advice and opinions, upon request, to the 
President and to the heads of the executive depart
ments. The Attorney General supervises and directs 
the activities of the U.S. attorneys and marshals in the 
various judicial districts. See Attorney General. 
Justice in eyre / j�st;)S in er /. From the old French 
word "eire, " i.e., a journey. Those justices who in an
cient times were sent by commission into various coun
ties, to hear more especially such causes as were termed 
"pleas of the crown," were called "justices in eyre." 
They differed from justices in oyer and terminer, inas
much as the latter were sent to one place, and for the 
purpose of trying only a limited number of special 
causes; whereas the justices in eyre were sent through 
the various counties, with a more indefinite and general 
commISSIOn. In some respects they resembled our 
present justices of assize, although their authority and 
manner of proceeding differed much from them. In 
England, such justices made a circuit every seven years 
throughout the Kingdom to try causes. 
Justicements /j�st;)sm;)nts/. An old general term for all 
things appertaining to justice. 
Justice of the peace. A judicial magistrate (of English 
origin) of inferior rank having (usually) jurisdiction lim
ited to that prescribed by statute in civil matters (e.g. 
performance of marriages) and jurisdiction over minor 
criminal offenses, committing more serious crimes to 
higher courts. Trend in most states has been to abolish 
office and courts of justice of the peace, transferring 
their powers and functions to other courts; e.g. munici
pal or district courts. See Justice's courts. 
Justicer /j�st;)s;)r/. The old form of justice. 
Justice's clerk. An amanuensis of the justice. A jus
tice of the peace is regarded as his own clerk, and, in 
making entries on his docket, he acts in a ministerial 
capacity. State ex reI. Morris Bldg. & Inv. Co. v. Brown, 
228 Mo.App. 760, 72 S.W.2d 859, 862. 
Justice's courts. Inferior tribunals, not of record, with 
limited jurisdiction, both civil and criminal, held by 
justices of the peace. The trend has been to abolish 
such courts, transferring their powers and functions to 
other courts; e.g. municipal or district courts. 
Justice seat. In old English law, the principal court of 
the forest, held before the chief justice in eyre, or chief 
itinerant judge or his deputy; to hear and determine all 
trespasses within the forest, and all claims of franchises, 
liberties, and privileges, and all pleas and causes what
soever therein arising. 3 Bl.Comm. 72. 
Justiceship. Rank or office of a justice. 
Justices of assize /j�st;)S;)Z ;)v ;)siiyz/. These justices, or, 
as they were sometimes called, "justices of nisi prius, " 
were judges of the superior English courts, who went on 
circuit into the various counties of England and Wales 
for the purpose of disposing of such causes as were ready 
for trial at the assizes. See Assize.

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865 
Justices of gaol delivery. In old English law, those 
justices who were sent with a commission to hear and 
determine all causes appertaining to persons, who, for 
any offense, had been cast into gaol. Part of their 
authority was to punish those who let to mainprise 
those prisoners who were not bailable by law, and they 
seem formerly to have been sent into the country upon 
this exclusive occasion, but afterwards had the same 
authority given them as the justices of assize. 
Justices of laborers. In old English law, justices ap
pointed to redress the frowardness of laboring men, who 
would either be idle or have unreasonable wages. 
Justices of nisi prius /j�st�s�z �v naysay pray�s/. In 
old English law, this title was usually coupled with that 
of justices of assize; the judges of the superior courts 
acting on their circuits in both these capacities. See 
Assise. 
Justices of oyer and terminer /j�sbs�z �v 6y�r rend 
t�rm�n�r/. In England, certain persons appointed by 
the king's commission, among whom were usually two 
judges of the courts at Westminster, and who went twice 
in every year to every county of the kingdom (except 
London and Middlesex), and, at what was usually called 
the "assizes," heard and determined all treasons, felo
nies, and misdemeanors. See Oyer and terminer. 
Justices of the bench. In England, the justices of the 
court of common bench or common pleas. 
Justices of the forest. In old English law, officers who 
had jurisdiction over all offenses committed within the 
forest against vert or venison. The court wherein these 
justices sat and determined such causes was called the 
"justice seat of the forest." They were also sometimes 
called the "justices in eyre of the forest." See Forest 
courts. 
Justices of the hundred. Hundredors; lords of the 
hundreds. In old English law, they who had the juris
diction of hundreds and held the hundred courts. See 
Hundred Court. 
Justices of the quorum. See Quorum. 
Justices of trail-baston. See Trail-baston. 
Justiciability. See Justiciable controversy. 
Justiciable /j;}stish(iy)�b�l/. Matter appropriate for 
court review. See Justiciable controversy. 
Justiciable controversy. A controversy in which a 
present and fixed claim of right is asserted against one 
who has an interest in contesting it; rights must be 
declared upon existing state of facts and not upon state 
of facts that may or may not arise in future. A question 
as may properly come before a tribunal for decision. 
Duart Mfg. Co. v. Philad Co., D.C.Del., 30 F.Supp. 777, 
779, 780. Courts will only consider a "justiciable" con
troversy, as distinguished from a hypothetical difference 
or dispute or one that is academic or moot. Aetna Life 
Ins. Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463, 
81 L.Ed. 617. Term refers to real and substantial con
troversy which is appropriate for judicial determination, 
as distinguished from dispute or difference of contin-
JUSTIFICATION 
gent, hypothetical or abstract character. State v. Nardi
ni, 187 Conn. 109, 445 A.2d 304, 307. Compare Political 
questions. See Case; Cause of action; Controversy. 
Justiciar /j;}stish(iy)�r/. In old English law, a judge or 
justice. One of several persons learned in the law, who 
sat in the aula regis, and formed a kind of court of 
appeal in cases of difficulty. Also spelled justicier. 
J usticiarii itinerantes / j;}stis(h)iyeriyay aytin�rrentiyz/. 
In old English law, justices in eyre, who formerly went 
from county to county to administer justice. They were 
so called to distinguish them from justices residing at 
Westminster, who were called '}usticii residentes". 
Justiciarii residentes /j;}stis(h)iyeriyay rez�dentiyz/. In 
old English law, justices or judges who usually resided in 
Westminster. They were so called to distinguish them 
from justices in eyre. 
Justiciary /j;}stish(iy)�ry/. An old name for a judge or 
justice. The word is formed on the analogy of the Latin 
'}uriciarius" and French "justicier': and is a variant of 
justiciar (q.v.). 
Justiciatus /j;}stishiyeyt�s/. Judicature; prerogative. 
The proceeding by which bail establishes the ability to 
perform the undertaking of the bond or recognizance. 
Justicier. Fr. See Justiciar. 
Justicies /j�stis(h)iy(iy)z/. In old English law, a writ 
directed to the sheriff, empowering him, for the sake of 
dispatch, to try an action in his county court for a larger 
amount than he has the ordinary power to do. It is so 
called because it is a commission to the sheriff to do the 
party justice, the word itself meaning, "You may do 
justice to _". 3 Bl.Comm. 36. 
Justifiable. Rightful; defensible; warranted · or sanc
tioned by law; that which can be shown to be sustained 
by law, as justifiable homicide. See Homicide; Ju stifiable 
homicide. 
Justifiable cause. Justifiable cause for prosecution is 
well-founded belief of person of ordinary caution, pru
dence, and judgment in existence of facts essential to 
prosecution. See also Probable cause. 
Justifiable homicide. Killing of another in self-defense 
when danger of death or serious bodily injury exists. 
Such homicide generally connotes only the use of force 
which is necessary, or which reasonably appears to be 
necessary, to resist other party's misconduct; and use of 
excessive force destroys the justification. People v. 
Bates, 256 C.A.2d 935, 64 Cal.Rptr. 575, 578. An act 
which the law positively enjoins upon the perpetrator or 
positively permits him to perform, such as a capital 
crime execution or the prevention of a crime or escape 
by a proper officer. Law v. State, 21 Md.App. 13, 318 
A.2d 859, 869. See Self-defense. 
Justification. Just, lawful excuse or reason for act or 
failing to act. A maintaining or showing a sufficient 
reason in court why the defendant did what he is called 
upon to answer, particularly in an action of libel and as 
a defense to criminal charges of assault or homicide (e.g. 
self defense).

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JUSTIFICATION 
Justification is a procedure with common-law origins 
by which a surety must demonstrate to the satisfaction 
of the court that it has sufficient ability to perform its 
obligations. Matthews v. IMC Mint Corp., C.A. Utah, 
542 F.2d 544, 546. 
Justification means explanation with supporting data. 
American Export-Isbrandtsen Lines, Inc. v. Federal Mar
itime Commission, 135 U.S.App.D.C. 181, 417 F.2d 749, 
752. As defense in criminal and tort law, term means 
maintaining or showing a sufficient reason in court why 
the defendant did what he is called upon to answer or, 
just cause or lawful excuse for act, reasonable excuse. 
Young Women's Christian Ass'n of Princeton, N. J. v. 
Kugler, D.C.N.J., 342 F.Supp. 1048, 1062. See Model 
Penal Code § 3.01 et seq. 
Term is not widely used in torts where, instead, de
fenses and privileges are common. 
See also Legal excuse; Necessity; Self-defense. 
Justificators Ij;)st;;,f;;,keyt;;,rz/. A kind of compurgators 
(q.v .), or those who by oath justified the innocence or 
oaths of others; as in the case of wager or law. 
Justifying bail. Consists in the requirement of proving 
the sufficiency of bail or sureties in point of property, 
etc. See Bail (Bail point scale). 
Jus tigni immittendi Ij;)s tignay im;;,tenday/. In Roman 
law, an urban servitude which gave the right of insert
ing a beam into the wall of another. 
Justinianist Ij�stin(i)y;;,n;;,st!. A civilian; one who stud
ies the civil law. 
Justinian's institutes Ij�stin(i)y;;,nz inst;;,t(y)uwts/. See 
Institutes. 
Justitia Ij�stish(iy);;,/. Lat. Justice. A jurisdiction, or 
the office of a judge. 
Justitia debet esse libera, quia nihil iniquis venali 
justitia; plena, quia justitia non debet claudicare; 
et celeris, quia dilatio est quredam negatio 
Ij�stish(iy);;, deb;;,t esiy lib;;,r;;" kway;;, nay(h);;,l ;;,nikwiy;;,s 
v;;,neylay j�stish(iy);;,; pliyn;;" kwiy;;" j;;,stish(iy);;, non deb;;,t 
klod;;,keriy, et sebr;;,s, kway;;, d;;,leysh(iy)ow est kwiyd;;,m 
n;;,geysh(iy)ow/. Justice ought to be free, because noth
ing is more iniquitous than venal justice; full, because 
justice ought not to halt; and speedy, because delay is a 
kind of denial. 
Justitia est constans et perpetua voluntas jus suum 
cuique tribuendi Ij�stish(iy);;, est konstrenz et 
p;;,rpetyuw;;, v;;,l;)ntres j;)S s(y)uw;;,m k(yuw)aykwiy 
trib(y)uwenday/. Justice is a steady and unceasing dis
position to render to every man his due. 
Justitia est duplex, viz., severe puniens et vere 
prreveniens Ij�stish(iy);;, est d(y)uwpleks viz: s;;,viriy 
pyuwn(i)yenz et viriy pr;;,viyn(i)yenz/. Justice is double; 
punishing severely, and truly preventing. 
Justitia est virtus excellens et altissimo complacens 
Ij�stish(iy);;, est v;)rt;;,s eks;;,bnz et reltis;;,mow 
k;;,mpleys;;,nz/. Justice is excellent virtue and pleasing 
to the most high. 
866 
Justitia firmatur solium Ij�stish(iy);;, f;;,rmeyt;;,r sow
liy;;,m/. By justice the throne is established. 
Justitia nemini neganda est Ij�stish(iy);;, nem;;,nay 
n;;,grend;;, est!. Justice is to be denied to none. 
Justitia non est neganda non differenda Ij�stish(iy);;, 
non est n;;,grend;;" non dif;;,rend;;,/. Justice is neither to 
be denied nor delayed. 
Justitia non novit patrem nec matrem; solam verita
tem spectat justitia Ij�stish(iy);;, non nowv;;,t pretr;;,m 
nek meytram; sowl;;,m vehr;;,teyt;;,m spekt;;,t j�stish(iy);;,/. 
Justice knows not father nor mother; justice looks at 
truth alone. 
Justitia piepoudrous. Speedy justice. 
Justitium Ij;;,stish(iy);;,m/. Lat. In the civil law, a sus
pension or intermission of the administration of justice 
in courts; vacation time. 
Justness. Conformity to truth, propriety, accuracy, or 
the like. John W. Masury & Son v. Bisbee Lumber Co., 
49 Ariz. 443, 68 P.2d 679, 693. 
As used in statute providing for acknowledgment of 
"justness" of claim to remove bar of limitations, refers 
to moral obligation. John W. Masury & Son v. Bisbee 
Lumber Co., 49 Ariz. 443, 68 P.2d 679, 693. 
Just prior. Immediately preceding; just before; without 
appreciable lapse of time before. Jackson v. McCrary, 
Tex.Civ.App., 148 S.W.2d 942, 944. It means before the 
time and connotes nearness in point of time. Some 
period of time before. Hoelzel v. Chicago, R. I. & P. Ry. 
Co., 337 Mo. 61, 85 S.W.2d 126, 129. 
Jus tripertitum Ij�s trayp;;,rtayd;;,m/. In Roman law, a 
name applied to the Roman law of wills, in the time of 
Justinian, on account of its three-fold derivation, viz., 
from the prretorian edict, from the civil law, and from 
the imperial constitutions. 
Jus triplex est,-propietatis, possessionis, et possibil
itatis Ij�s tripleks est: pr;;,pray;;,teyt;;,s p;;,zeshiyown;;,s et 
pos;;,bil;;,teyt;;,s/. Right is three-fold,-<>f property, of pos
session, and of possibility. 
Jus trium liberorum Ij�s tray;;,m layb;;,ror;;,m/. In Ro
man law, a right or privilege allowed to the parent of 
three or more children. These privileges were an ex
emption from the trouble of guardianship, priority in 
bearing offices, and a treble proportion of corn. 
Just title. By the term "just title," in cases of prescrip
tion, is meant a title which the possessor may have 
received from any person whom he honestly believed to 
be the real owner, provided the title was such as to 
transfer the ownership of the property. Davis v. Gaines, 
104 U.S. 386, 400, 26 L.Ed. 757; B. Fernandez & Bros. v. 
Ayllon, 266 U.S. 144, 45 S.Ct. 52, 69 L.Ed. 209. One 
good against all the world. See Marketable title. 
J ustum non est aliquem antenatum mortuum facere 
bastardum, qui pro tota vita sua pro legitimo habe
tur Ij�st;;,m non est rel;;,kw;;,m rent;;,neyt;;,m mortyuw;;,m 
feys;;,riy brestard;;,m, kway prow towt;;, vayt;;, s(y)uw;;, prow 
bj it;;,mow h;;,biyt;;,r/. It is not just to make a bastard

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867 
after his death one elder born who all his life has been 
accounted legitimate. 
Just value. In taxation, the fair, honest, and reasonable 
value of property, without exaggeration or depreciation; 
its actual market value. See also Fair market value. 
Jus utendi Ij�s yuwt{mday/. The right to use property 
without destroying its substance. It is employed in 
contradistinction to the jus abutendi. 
Jus venandi et piscandi Ij�s v;}nrenday et piskrenday I. 
The right of hunting and fishing. 
Jus vendit quod usus approbavit Ij�s vend;}t kwod 
YUWZ;}s repr;}beyv;}t/. The law dispenses what use has 
approved. 
Jus vita! necisque Ij�s vaytiy n;}siskwiy/. In Roman 
law, the right of life and death. Originally a father, or 
his pater-familias if he was himself in domestic subjec
tion, could decide-not arbitrarily, but judicially
whether or not to rear his child; and while this right 
became subject to certain restrictions, yet when the 
child had grown up, the father, in the exercise of his 
domestic jurisdiction, might visit his son's misconduct, 
both in private and public life, with such punishment as 
he thought fit, even banishment, slavery, or death. In 
the early Empire these rights became relaxed, and they 
disappeared in the Justinian law. 
Juvenile. A young person who has not yet attained the 
age at which he or she should be treated as an adult for 
purposes of criminal law. In some states, this age is 
seventeen. Under the federal Juvenile Delinquency 
Act, a "juvenile" is a person who has not attained his 
eighteenth birthday. 18 U.S.c.A. § 5031. A term which 
may be, though not commonly is, applied to a person 
who has not reached his or her legal majority for pur
poses of contracting, marrying, etc. In law, the terms 
"juvenile" and "minor" are usually used in different 
contexts; the former used when referring to young crim-
JUZGADO 
inal offenders, the latter to legal capacity or ma jority. 
See also Minor; Youthful offender. 
Juvenile courts. A court having special jurisdiction, of 
a paternal nature, over delinquent, dependent, and ne
glected children. In juvenile court proceedings, due 
process requires that juveniles have right to notice of 
charges, to counsel, to confrontation and cross-examina
tion of witnesses, and to privilege against self-incrimina
tion. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 
527. 
Juvenile delinquency. Participation in illegal behavior 
by a minor who falls under a statutory age limit. See 
also Delinquent child. 
Juvenile delinquent. See Delinquent child. 
Juvenile offenders. See Delinquent child. 
Juxta Ij�kst;}/. Lat. Near; following; according to. 
Juxta conventionem Ij�kst;} k;}nvenshiyown;}m/. Ac-
cording to the covenant. 
Juxta formam statuti Ij�kst;} fOrm;}m st;}t(y)uwtay/. 
According to the form of the statute. 
Juxtaposition Ij�kst;}p;}zish;}n/. A placing or being 
placed in nearness or contiguity; or side by side; as a 
juxtaposition of words. Brown v. State, 126 Tex.Cr.R. 
449, 72 S.W.2d 269, 270. 
In patent law, "juxtaposition" is the English equiva
lent of "aggregation." Mesta Mach. Co. v. Federal Ma
chine & Welder Co., C.C.A.Pa., 110 F.2d 479, 481. 
Juxta ratam Ij�kst;} reyt;}m/. At or after the rate. 
Juxta tenorem sequentem Ij�kst;} t;}nor;}m s;}kwent;}m/. 
According to the tenor following. A phrase used in the 
old books when the very words themselves referred to 
were set forth. 
Juzgado Ihuwsgaoow/. In Spanish law, the judiciary; 
the body of judges; the judges who concur in a decree.

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K 
Kahawai Ikahavayiy I. Hawaiian. The flowing stream. 
It may include the bed or channel of the stream and 
may, also, include the portion of such channel covered 
only in times of high water or of freshets. 
Kaiage, or kaiagium Ikey;}j/keyeyj(iy);}m/. A wharfage
due. 
Kalendar Ik,i!l;}nd;}r/. An account of time, exhibiting 
the days of the week and month, the seasons, etc. More 
commonly spelled "calendar." 
Kalendarium Ikrel;}nderiy;}m/. In the civil law, a calen
dar; a book of accounts, memorandum-book, or debt
book; a book in which accounts were kept of moneys 
loaned out on interest. So called because the Romans 
used to let out their money and receive the interest on 
the calends of each month. 
Kalends Ik,i!l;}ndz/. See Calends. 
Kangaroo court. Term descriptive of a sham legal 
proceeding in which a person's rights are totally dis
regarded and in which the result is a foregone conclu
sion because of the bias of the court or other tribunal. 
Kast-geld. Contribution for a jettison; average. 
Katatonia I k,et;}town(i)y;} I . See Insanity. 
Kay. A quay, or key. 
Kayage. See Cayagium. 
K.B. Abbreviation for "King's Bench". 
K.C. Abbreviation for "King's Counsel". 
that is, continue in motion in the same general direction 
in which she was previously sailing. The Britannia, 153 
V.S. 130, 14 S.Ct. 795, 38 L.Ed. 660. To maintain, to 
cause to continue without essential change of condition. 
To take care of and to preserve from danger, harm, or 
loss. 
Keeper. A custodian, manager, or superintendent; one 
who has the care, custody, or management of any thing 
or place; one who has or holds possession of anything. 
See Bailment; Custodian; Depository. 
Keeper of a bawdy house or house of ill fame. A 
person who has control, proprietorship, or management 
of the house in question. State v. Weston, 235 Iowa 148, 
15 N.W.2d 922, 923. 
Keeper of dog. A harborer of a dog. Elender v. White, 
La.App., 14 So.2d 280, 282. Any person, other than 
owner, harboring or having in his possession any dog. 
Hancock v. Finch, 126 Conn. 121, 9 A.2d 811. One who, 
either with or without owner's permission, undertakes 
to manage, control, or care for it as dog owners in 
general are accustomed to do. 
Keeper of the forest. In old English law, an officer 
(called also chief warden of the forest) who had the 
principal government of all things relating to the forest, 
and the control of all officers belonging to the same. 
Keeper of the great seal. In English law, a high officer 
of state, through whose hands pass all charters, grants, 
and commissions of the king under the great seal. 
Keelage Ikiyl;}j/. The right to demand money for the Keeper of the king's conscience. A name sometimes 
privilege of anchoring a vessel in a harbor; also the applied to the chancellor of England, as being formerly 
money so paid. an ecclesiastic and presiding over the royal chapel. 
K T . P 1 R b 23 C 1 Keeper of the privy seal. In English law, an officer eep, v. 0 contmue. eop e v. ose erry, a. 
A d P 2d B . V S C CAM ' h through whose hands pass all charters signed by the pp.2 13, 71 . 944; rIggs v. . ., . . . IC ., 45 
F.2d 479, 480. To have or retain in one's power or king before they come to the great seal. He is a privy 
possession; not to lose or part with; to preserve or councillor, and was anciently called "clerk of the privy 
retain. To maintain, carryon, conduct, or manage; as, seal," but is now generally called the "lord privy seal." 
to "keep" a bawdy house, gaming table, nuisance, or the Keeper of the touch. The master of the assay in the 
like. To maintain, tend, harbor, feed, and shelter; as, to English mint. 
"keep" a dangerous animal. Keeping a gambling house or place. A proprietor is 
To maintain continuously and methodically for the guilty if with his knowledge, acquiescence, and consent, 
purposes of a record; as, to "keep" books. Thus to express or implied, gambling is carried on upon premis-
"keep" records of court means, not only to preserve the es in his possession as owner or lessee, or under his 
manual possession of the records, books, and papers, but management or control, by his associates or subor-
to correctly transcribe therein the proceedings of the dinates who are likewise guilty if they are present 
court. aiding and assisting in carrying on such gambling opera-
To maintain continuously and without stoppage or tions for him. Commonwealth v. Pinkenson, 138 Pa.Su-
variation; as, when a vessel is said to "keep her course," per. 485, 11 A.2d 176, 179. A proprietor of a place not 
868

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869 
kept for the purpose of gambling is guilty if he allows 
gambling to be carried on and participates in it or 
receives a benefit from it in some way. People v. 
Dubinsky, Sp.Sess., 31 N.Y.S.2d 234, 238. See e.g. 18 
V.S.C.A. § 1955. See also Gambling. 
Keeping a gambling table or bank. If one has posses
sion or custody of a gaming table, and authority over its 
use, and supervises the gaming, he is guilty of such 
crime. 
Keeping a lookout. Being watchful of movements of 
driver's own vehicle, as well as other vehicles and pedes
trians. See Lookout. 
Keeping books. Preserving an intelligent record of a 
merchant's or tradesman's affairs with such reasonable 
accuracy and care as may properly be expected from a 
person in that business. See Accounting. 
Keeping the peace. Avoiding a breach of the peace; 
dissuading or preventing others from breaking the 
peace. See also Articles of the peace. 
Keep in repair. When a lessee is bound to keep the 
premises in repair, he must have them in repair at all 
times during the term; and, if they are at any time out 
of repair, he is guilty of a breach of the covenant. See 
Habitability. 
Kefauver-Cellar Act. Federal anti-merger statute en
acted in 1950 prohibiting the acquisition of assets of one 
company by another (generally in the same line of 
business) when the effect is to lessen competition. 15 
V.S.C.A. §§ 18, 21. 
Keiki Ikeykiy I. Hawaiian. Popular meaning is child, 
but the meaning of that word in any particular instance 
depends on context in which it is used, and it can mean 
"descendant of any generation." In re Kanoa's Trust 
Estate, 47 Hawaii 160, 393 P.2d 753, 760; Kalakaua v. 
Parke, 8 Hawaii 620, 621. 
Kelp-shore. The land between high and low water 
mark. 
Kentucky Resolutions. A series of resolutions drawn 
up by Jefferson, and adopted by the legislature of Ken
tucky in 1799, protesting against the "alien and sedition 
laws," declaring their illegality, announcing the strict 
constructionist theory of the federal government, and 
declaring "nullification" to be "the rightful remedy." 
Kentucky Rule. In the allocation of dividends by trust
ees as between income and principal, all dividends 
whether paid in cash or stock are regarded as income 
though in most jurisdictions accepting this rule a divi
dend paid in the stock of the issuing corporation is 
considered principal and brings about an adjustment in 
the basis of such stock in the portfolio. 
Keogh Plan. A designation for retirement plans avail
able to self-employed taxpayers (also referred to as 
H.R.10 plans). Such plans extend to the self-employed 
tax benefits similar to those available to employees 
under qualified pension and profit sharing plans. Year
ly contributions to the plan (up to a certain amount) are 
tax deductible. See also Individual retirement account. 
KIDDIE TAX 
Kerhere. A customary cart-way; also a commutation 
for a customary carriage-duty. 
Kernellatus Ik�rn�leyt�s/. Fortified or embattled. 
Kernes Ik�rnz/. In English law, idlers; vagabonds. 
Ketubah. The Jewish "Ketubah" is a marriage contract 
or marriage settlement. Hurwitz v. Hurwitz, 216 App. 
Div. 362, 215 N.Y.S. 184, 185. 
Key. A wharf for the lading and unlading of merchan
dise from vessels. More commonly spelled "quay." 
An instrument for fastening and opening a lock. 
Any descriptive words in a land contract which lead 
unerringly to the land. Blumberg v. Nathan, 190 Ga. 
64, 8 S.E.2d 374, 375. Reference to something more 
definite by which an indefinite description of property is 
made certain. 
Keyage. A toll paid for loading and unloading merchan
dise at a key or wharf. 
Key man insurance. Type of insurance coverage pur
chased by companies to protect them on the death or 
disability of a valued employee or by partnership to 
provide for funds with which to buy out the interest of 
such partner on his death or disability. 
Key number system. A standard legal research tool in 
which each point of law derived from reported cases is 
topically arranged in a digest and assigned a "key" 
number. Once the key number for a relevant point of 
law is determined, generally through a digest index, a 
researcher may look under that topic, in either a digest 
or on WESTLA W, for topically related cases. See also 
Digest (American Digest System). 
Keyus Ikiy�s/. A guardian, warden, or keeper. 
Kibei 1 lciybey I. A Japanese-American (person born in 
the Vnited States of Japanese parents) who has been 
educated in Japan, but has returned to the United 
States. See Hohri v. U.S., C.A.D.C., 782 F.2d 227, 234; 
McGrath v. Abo, C.A., 186 F.2d 766, 772. [Japanese-v. 
to return to the United States; ki meaning "to return" 
and bei meaning "the United States"]. 
Kickback. Payment back by seller of a portion of the 
purchase price to buyer or public official to induce 
purchase or to improperly influence future purchases or 
leases. Such payments are not tax deductible as ordi
nary and necessary expenses. I.R.C. § 162. 
Under federal statute kickbacks are a criminal offense 
in connection with a contract for construction or repair 
of a public building or a building financed by loans from 
the government. 18 V.S.C.A. § 874. Such acts are also 
generally prohibited by state commercial bribery stat
utes. See also Bribery. 
Kiddie tax. A tax imposed on unearned income (in 
excess of a minimal amount) of a child under the age of 
14. Such income is taxed at the parents' highest rate. 
The Tax Reform Act of 1986 instituted the "kiddie tax" 
in an effort to stop the shifting of income producing 
assets within families (i.e., from parents to minor chil-

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KIDDIE TAX 
dren) which, prior to the TRA, resulted in substantial 
tax savings to upper bracket parents. I.R.C. § 1(i). 
Kidnapping. At common law, the forcible abduction or 
stealing and carrying away of a person from own coun
try to another. 4 Bl.Comm. 219. Collier v. Vaccaro, 
C.C.A.Md., 51 F.2d 17, 19; State v. Berry, 200 Wash. 495, 
93 P.2d 782, 787, 792. The unlawful seizure and remov
al of a person from own country or state against his will. 
In American law, the intent to send the victim out of the 
country does not constitute a necessary part of the 
offense; the unlawful taking and carrying away of a 
human being by force or fraud or threats or intimidation 
and against his will being the essential elements. State 
v. Roberts, 210 S.E.2d 396, 404, 286 N.C. 265. At com
mon law kidnapping was a misdemeanor, but under 
modern statutes such crime.is a felony. 18 V.S.C.A. 
§ 1201. 
A person is guilty of kidnapping if he unlawfully 
removes another from his place of residence or business, 
or a substantial distance from the vicinity where he is 
found, or if he unlawfully confines another for a sub
stantial period in a place of isolation, with any of the 
following purposes: (a) to hold for ransom or reward, or 
as a shield or hostage; or (b) to facilitate commission of 
any felony or flight thereafter; or (c) to inflict bodily 
injury on or to terrorize the victim or another; or (d) to 
interfere with the performance of any governmental or 
political function. Model Penal Code, § 212.1. 
With respect to federal kidnapping act, see Lindbergh 
Act. See also Abduction; Hostage; Parental Kidnapping 
Prevention Act; Ransom. 
Child-stealing. Child-stealing statutes commonly pro
vide a penalty for any one who shall lead, take, entice or 
detain a child under a specified age with intent to keep 
or conceal it from its parent, guardian, or other person 
having lawful care or control thereof. 
Kidnapping for ransom. One who detains another for 
the purpose of extorting money from him or from anoth
er person as the price of his release is guilty of the 
felony of kidnapping for ransom. 18 V.S.C.A. § 1201. 
Simple kidnapping. Kidnapping which is not in some 
aggravated form, such as holding for ransom, is com
monly referred to as "simple kidnapping." 
Kilberg doctrine. In conflicts of law, a rule to the effect 
that the forum is not bound by the law of the place of 
the death as to the limitations on damages for wrongful 
death because such law is procedural and hence the law 
of the forum governs on this issue. Kilberg v. Northeast 
Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 
526. 
Kilketh. An ancient servile payment made by tenants 
in husbandry. 
Kill, v. To deprive of life; to destroy the life of an 
animal or person. The word "homicide" expresses the 
killing of a human being. See also Homicide; Man
slaughter; Murder. 
Killing by misadventure. Accidental killing of a per
son where the slayer is doing a lawful act, unaccompa-
870 
nied by any criminal carelessness or reckless conduct. 
Excusable homicide occurring where one engaged in 
doing lawful act, without intention to do harm and, with 
proper precaution to avoid danger, unfortunately kills 
another. See also Accidental killing; Manslaughter. 
Kind. Class, grade, or sort. City of St. Louis v. James 
Braudis Coal Co., Mo.App., 137 S.W.2d 668, 670. Genus; 
generic class; description. See In kind; Like-kind ex
change; Sample. 
Kindred. See Kin or kindred; Next of kin. 
King. The sovereign, ruler, or chief executive magis
trate of a state or nation whose constitution is of the 
kind called "monarchical" is thus named if a man; if it 
be a woman, she is called "queen." 
The word expresses the idea of one who rules singly 
over a whole people or has the highest executive power; 
but the office may be either hereditary or elective, and 
the sovereignty of the king may or may not be absolute, 
according to the constitution of the country. 
King can do no wrong. . This maxim means that the 
king is not responsible legally for aught he may please 
to do, or for any omission. It does not mean that 
everything done by the government is just and lawful, 
but that whatever is exceptionable in the conduct of 
public affairs is not to be imputed to the king. See 
Sovereign immunity; Sovereignty. 
King-craft. The art of governing. 
Kingdom. A country where an officer called a "king" 
exercises the powers of government, whether the same 
be absolute or limited. In some kingdoms, the executive 
officer may be a woman, who is called a "queen." 
King-geld. A royal aid; an escuage (q. v.J. 
King's (Queen's) advocate. An English advocate who 
holds, in the courts in which the rules of the canon and 
civil law prevail, a similar position to that which the 
attorney general holds in the ordinary courts, i.e., he 
acts as counsel for the crown in ecclesiastical, admiralty, 
and probate cases, and advises the crown on questions of 
international law. In order of precedence, he ranks 
after the attorney general. 
King's (Queen's) Bench. One of the superior courts of 
common law in England, being so called because the 
king (or queen) used formerly to sit there in person, the 
style of the court being "coram ipso rege." 
It was called the "queen's bench" in the reign of a 
queen, and during the protectorate of Cromwell it was 
styled the "upper bench." It consisted of a chief justice 
and three puisne justices, who were by their office the 
sovereign conservators of the peace and supreme coro
ners of the land. It was a remnant of the aula regis, 
and was not originally fixed to any certain place, but 
might follow the king's person, though for some centu
ries past it usually sat at Westminster. It had a very 
extended jurisdiction both in criminal and civil causes; 
the former in what was called the "crown side" or 
"crown office," the latter in the "plea side," of the court.

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871 
Its civil jurisdiction was gradually enlarged until it 
embraced all species of personal actions. By the Judica
ture Act of 1873 the jurisdiction of this court was 
assigned to the Queens Bench Division of the High Court 
of Justice. See Court of King's (Queen's) Bench. 
King's (Queen's) coroner and attorney. In England, 
an officer of the court of king's (or queen's) bench, 
usually called "the master of the crown office," whose 
duty it was to file informations at the suit of a private 
subject by direction of the court. 4 Bl.Comm. 308, 309. 
The office is now merged in that of Master of the Crown 
Office. 
King's (Queen's) counsel. Barristers or serjeants· who 
have been called within the bar and selected to be the 
king's (or queen's) counsel. They answer in some mea
sure to the advocati ftSci, or advocates of the revenue, 
among the Romans. They could not formerly be em
ployed in any cause against the Crown (e.g. in defending 
a prisoner) without special license. Now, however, by a 
general dispensation granted in 1920, they can appear 
against the Crown without such license. Called 
"Queen's" counsel when a queen holds the crown. 
King's (Queen's) evidence. When several persons are 
charged with a crime, and one of them gives evidence 
against his accomplices, on the promise of being granted 
a pardon, he is said to be admitted king's or (in America) 
state's evidence. Called "Queen's" evidence when a 
queen holds the crown. See also State's evidence. 
King's (Queen's) proctor. A proctor or solicitor repre
senting the crown in the Family Division. In petitions 
for dissolution of marriage, or for declarations of nullity 
of marriage, the king's (or queen's) proctor may, under 
the direction of the attorney general, and by leave of the 
court, intervene in the suit for the purpose of proving 
collusion between the parties. Called "Queen's" proctor 
when a queen holds the crown. 
King's (Queen's) remembrancer. An officer of the cen
tral office of the English supreme court. Formerly he 
was an officer of the exchequer, and had important 
duties to perform in protecting the rights of the crown; 
e.g., by instituting proceedings for the recovery of land 
by writs of intrusion (q.v.), and for the recovery of legacy 
and succession duties; but of late years administrative 
changes have lessened the duties of the office. He was 
at the head of the department which had charge of all 
revenue suits, and of matters pertaining to the office of 
sheriff. He attended as the officer of the king's 
(queen's) bench when the lord mayor made his appear
ance on November 9th, and was representing the old 
court of exchequer when the city of London did suit and 
service in discharge of quit-rents for certain lands an
ciently held under the crown. Called a "Queen's" re
membrancer when a queen holds the crown. 
King's silver. In old English practice, a fine due the 
king pro licentia concordandi (for leave to agree), in the 
process of levying a fine. 
KNIGHTHOOD 
King's widow. In feudal law, a widow of the king's 
tenant in chief, who was obliged to take oath in chan
cery that she would not marry without the king's leave. 
Kin or kindred. Relation or relationship by blood or 
consanguinity. Relatives by blood; by birth. May be 
either lineal (ascending or descending) or collateral. 
Poff v. Pennsylvania R. Co., D.C.N.Y., 57 F.Supp. 625, 
626. See also Blood relations; Heirs; Next of kin. 
Kinsfolk. Relations; those who are of the same family. 
Kinship. Relationship by blood. See Kin or Kindred. 
Kinsman Ikinzm;;,n/. A man of the same race or family. 
Kinswoman. A female relation. 
Kintal, or kintle Ik(w)int;;,l/. A hundred pounds in 
weight. See Quintal or Kintal. 
Kissing the book. The ceremony of touching the lips to 
a copy of the Bible, used in administering oaths. It is 
the external symbol of the witness' acknowledgment of 
the obligation of the oath. 
Kist. In Hindu law, a stated payment; installment of 
rent. 
Kiting. The wrongful practice of taking advantage of 
the float, the time that elapses between the deposit of a 
check in one bank and its collection at another. Method 
of drawing checks by which the drawer uses funds which 
are not his by drawing checks against deposits which 
have not yet cleared through the banks. "Kiting" con
sists of writing checks against a bank account where 
funds are insufficient to cover them, hoping that before 
they are presented the necessary funds will be deposited. 
Sutro Bros. & Co. v. Indemnity Ins. Co. of North Amer
ica, D.C.N.Y., 264 F.Supp. 273, 283. See also Float. 
Kleptomania I klept;;,meyn(i)y;;, I . In medical jurispru
dence, a species (or symptom) of mania, consisting of an 
irresistible propensity to steal. 
Knave Ineyv/. A rascal; a false, tricky, or deceitful 
person. The word originally meant a boy, attendant, or 
servant, but long-continued usage has given it its 
present signification. 
Knight. In English law, the next personal dignity after 
the nobility. Of knights there are several orders and 
degrees. The first in rank are knights of the Garter, 
instituted by Richard I and improved by Edward III in 
1344; next follows a knight banneret; then come 
knights of the Bath, instituted by Henry IV, and revived 
by George I; and they were so called from a ceremony of 
bathing the night before their creation. The last order 
are knights bachelors, who, though the lowest, are yet 
the most ancient, order of knighthood; for we find that 
King Alfred conferred this order upon his son Athelstan. 
Other degrees of knights include Knight of the Order of 
St. Michael and St. George (instituted in 1345), Knight 
of the Thistle (reestablished in 1703), and Knight of the 
Most Excellent Order of the British Empire (instituted 
in 1917). 1 Bl.Comm. 403. 
Knighthood. The rank, order, character, or dignity of a 
knight.

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KNIGHT-MARSHAL 
Knight-marshal. In English law, an officer in the royal 
household who has jurisdiction and cognizance of of
fenses committed within the household and verge, and 
of all contracts made therein, a member of the house
hold being one of the parties. 
Knights bachelors. In English law, the most ancient, 
though lowest, order of knighthood. See Knight. 
Knights banneret. In English law, those created by the 
sovereign in person on the field of battle. They rank, 
generally, after knights of the Garter. See Knight. 
Knights fee. The determinate quantity of land (held by 
an estate of inheritance), or of annual income therefrom, 
which was sufficient to maintain a knight. 
Knights of the Garter. See Garter; Knight. 
Knights of the post. A term for hireling witnesses. 
Knights of the shire. In English law, members of 
parliament representing counties or shires, in contradis
tinction to citizens or burgesses, who represent boroughs 
or corporations. 
Knight's service. Upon the Norman conquest, all the 
lands in England were divided into knight's fees, in 
number above sixty thousand. For every knight's fee, a 
knight was bound to attend the king in his wars forty 
days in a year, in which space of time a campaign was 
generally finished. If a man only held half a knight's 
fee, he was only bound to attend twenty days; and so in 
proportion. But this personal service, in process of 
time, grew into pecuniary commutations, or aids; until 
at last, with the military part of the feudal system, it 
was abolished by the Tenures Abolition Act of 1660. 1 
Bl.Comm. 410. 
Knock and announce rule. This rule for execution of 
arrest and search warrants requires that police knock 
and announce their authority and purpose before enter
ing into home. Davenport v. State, Ind., 464 N.E.2d 
1302, 1305. A peace officer, whether he arrests by 
virtue of warrant or by virtue of his authority to arrest 
without warrant on probable cause, can break door of 
house to effect arrest only after first stating his authori
ty and purpose for demanding admission. Miller v. U. 
S., 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332. The 
officer may break open any outer or inner door or 
window of a house, or any part of a house, or anything 
therein, to execute a search warrant, if, after notice of 
his authority and purpose, he is refused admittance or 
when necessary to liberate himself or a person aiding 
him in the execution of the warrant. 18 U.S.C.A. 
§ 3109. 
Knock down. To assign to a bidder at an auction by a 
knock or blow of the hammer. Property is said to be 
"knocked down" when the auctioneer, by the fall of his 
hammer, or by any other audible or visible announce
ment, signifies to the bidder that he is entitled to the 
property on paying the amount of his bid, according to 
the terms of the sale. "Knocked down" and "struck ofr' 
are synonymous terms. 
872 
Knot. In seamen's language, a "knot" is a division of the 
log-line serving to measure the rate of the vessel's mo
tion. The number of knots which run off from the reel 
in half a minute shows the number of miles the vessel 
sails in an hour. Hence when a ship goes 8 nautical 
miles an hour she is said to go "8 knots." 
Know. To have knowledge; to possess information, in
struction, or wisdom. To perceive or apprehend; to 
understand. International-Great Northern R. Co. v. 
Pence, Tex.Civ.App., 113 S.W.2d 206, 210. The word 
"familiar" is equivalent. See Knowingly; Knowledge; 
Notice; Scienter. 
Know all men. A form of public address, of great 
antiquity, and with which many written instruments, 
such as bonds, letters of attorney, etc., still commence. 
Knowingly. With knowledge; consciously; intelligent
ly; willfully; intentionally. An individual acts "know
ingly" when he acts with awareness of the nature of his 
conduct. State v. Kroll, Mo;App., 682 S.W.2d 78, 81. 
Act is done "knowingly" or "purposely" if it is willed, is 
product of conscious design, intent or plan that it be 
done, and is done with awareness of probable conse
quences. Horne v. State, Ind., 445 N.E.2d 976, 978. 
A person acts knowingly with respect to a material 
element of an offense when: (i) if the element involves 
the nature of his conduct or the attendant circumstanc
es, he is aware that his conduct is of that nature or that 
such circumstances exist; and (ii) if the element involves 
a result of his conduct, he is aware that it is practically 
certain that his conduct will cause such a result. Model 
Penal Code, § 2.202. 
The use of the word in an indictment is equivalent to 
an averment that the defendant knew what he was 
about to do, and, with such knowledge, proceeded to do 
the act charged. 
See also Intent; Knowledge; Scienter. 
Knowingly and willfully. This phrase, in reference to 
violation of a statute, means consciously and intention
ally. 
Knowledge. Acquaintance with fact or truth. People v. 
Henry, 23 Cal.App.2d 155, 72 P.2d 915, 921. 
It has also been defined as act or state of knowing or 
understanding, Witters v. U. S., 70 App.D.C. 316, 106 
F.2d 837, 840; actual knowledge, notice or information, 
New York Underwriters Ins. Co. v. Central Union Bank 
of South Carolina, C.C.A.S.C., 65 F.2d 738, 739; assur
ance of fact or proposition founded on perception by 
senses, or intuition; clear perception of that which ex
ists, or of truth, fact or duty; firm belief, Witters v. U. 
S., 70 App.D.C. 316, 106 F.2d 837, 840; guilty knowledge, 
Goldsworthy v. Anderson, 92 Colo. 446, 21 P.2d 718; 
information of fact, Green v. Stewart, 106 Cal.App. 518, 
289 P. 940, 944; means of mental impression, Howard v. 
Whittaker, 250 Ky. 836, 64 S.W.2d 173; miscellaneous 
information and circumstances which engender belief to 
moral certainty or induce state of mind that one consid
ers that he knows, Wise v. Curdes, 219 Ind. 606, 40 
N.E.2d 122, 126; notice or knowledge sufficient to excite

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873 
attention and put person on guard and call for inquiry, 
Iberville Land Co. v. Amerada Petroleum Corporation, 
C.C.A.La., 141 F.2d 384, 389; personal cognizance or 
knowledge or means of knowledge, The Chickie, D.C.Pa., 
54 F.Supp. 19, 20; state of being or having become 
aware of fact or truth, Howard v. Whittaker, 250 Ky. 
836, 64 S.W.2d 173. 
In commercial law, the level of a person's awareness 
of information at which the person actually knows the 
information. See U.C.C. § 1-201(25). 
When knowledge of the existence of a particular fact 
is an element of an offense, such knowledge is estab
lished if a person is aware of a high probability of its 
existence, unless he actually believes that it does not 
exist. Model Penal Code, § 2.202. 
Knowledge consists in the perception of the truth of 
affirmative or negative propositions, while "belief' ad
mits of all degrees, from the slightest suspicion to the 
fullest assurance. The difference between them is ordi
narily merely in the degree, to be judged of by the court, 
when addressed to the court; by the jury, when ad
dressed to the jury. 
See also Constructive knowledge; Imputed knowledge; 
Knowingly; Notice; Scienter. 
Actual knowledge. Positive, in contrast to imputed or 
inferred, knowledge of a fact. Roberts Const. Co. v. 
Brown, 272 Ala. 440, 131 So.2d 710, 712. For notice 
purposes, "actual knowledge" embraces those things of 
which the one sought to be charged has express informa
tion and those things which a reasonably diligent in
quiry and exercise of the means of information at hand 
would have disclosed. Morris v. Reaves, Tex.Civ.App., 
580 S.W.2d 891, 893. 
Agency relationship. Unless the parties have otherwise 
agreed, a principal or agent, with respect to the other, 
should know what a person of ordinary experience and 
intelligence would know, and in addition, what he would 
know if, having the knowledge and intelligence which he 
has or which he purports to have, he were to use due 
care in the performance of his duties to the other. 
Restatement, Second, Agency, § 10. 
Carnal knowledge. See Carnal knowledge. 
Knowledge of another's peril. One has "knowledge of 
peril of another," within doctrine of discovered peril, 
whenever it reasonably appears from the known facts 
and circumstances that the latter is pursuing a course 
which will probably terminate in serious bodily injury to 
him, and that he probably will pursue it to the end. 
KYTH 
Personal knowledge. Knowledge of the truth in regard 
to a particular fact or allegation, which is original, and 
does not depend on information or hearsay. Personal 
knowledge of an allegation in an answer is personal 
knowledge of its truth or falsity; and if the allegation is 
a negative one, this necessarily includes a knowledge of 
the truth or falsity of the allegation denied. In the law 
of evidence means something which the witness actually 
saw or heard, as distinguished from something he 
learned from some other person or sources. Hidalgo v. 
General Fire & Cas. Co., La.App., 254 So.2d 493, 496. 
Reason to know. The words "reason to know" are used 
throughout the Restatement of Torts to denote the fact 
that the actor has information from which a person of 
reasonable intelligence or of the superior intelligence of 
the actor would infer that the fact in question exists, or 
that such person would govern his conduct upon the 
assumption that such fact exists. Restatement, Second, 
Torts, § 12. 
Should know. The words "should know" are used 
throughout the Restatement of Torts to denote the fact 
that a person of reasonable prudence and intelligence or 
of the superior intelligence of the actor would ascertain 
the fact in question in the performance of his duty to 
another, or would govern his conduct upon the assump
tion that such fact exists. Restatement, Second, Torts, 
§ 12. 
Known. Familiar; perceived; recognized; understood; 
especially, when used absolutely, familiar to all; gener
ally understood or perceived. Term may, according to 
context, refer to both actual and constructive knowl
edge. 
Known heirs. In a statute relating to the sale of proper
ty of unknown heirs, it has been held to mean those 
persons who are known, and whose right to inherit, or 
the extent of whose right, to inherit, is dependent on the 
non-existence of other persons nearer or as near as the 
ancestor in the line of descent. 
Ku Klux Act. Federal statute which creates civil liabili
ty for interfering with a person's civil rights. 42 U.S. 
C.A. § 1985(3). 
Kuleana /kuwleyan�/. The Hawaiian term "kuleana" 
means a small area of land, such as were awarded in fee 
by the Hawaiian monarch, about the year 1850, to all 
Hawaiians who made application therefor. 
Kyth /kiB/. Sax. Kin or kindred.

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L 
L. This letter, as a Roman numeral, stands for the 
number "fifty." It is also used as an abbreviation for 
"law," "liber," (a book) "lord," and some other words of 
which it is the initial. 
La. Fr. The. The definite article in the feminine 
gender. Occurs in some legal terms and phrases. 
Label. Anything appended to a larger writing, as a 
codicil. 
A narrow slip of paper or parchment affixed to a deed 
or writ, in order to hold the appending seal. 
An affixation to or marking on a manufactured arti
cle, giving information as to its nature or quality, or the 
contents of a material, package or container, or the 
name of the maker, etc. Higgins v. Keuffel, 140 U.S. 428, 
11 S.Ct. 731, 35 L.Ed. 470. The informational content of 
such labels is often governed by federal and state laws; 
e.g. Fair Packaging and Labeling Act. 15 U.S.C.A. 
§ 1457. 
In English law, a copy of a writ in the exchequer. 
Labina /l;}bityn;}/. In old records, water land. 
Labor. Work; toil; service; mental or physical exertion. 
Term in its ordinary use is synonymous with "employ
ment," "job" or "position." Don Nelsen Const. Co. v. 
Landen, 198 Neb. 533, 253 N.W.2d 849, 852. Term 
normally refers to work for wages as opposed to work for 
profits; though the word is sometimes construed to 
mean service rendered or part played in production of 
wealth. Britt v. Cotter Butte Mines, 108 Mont. 174, 89 
P.2d 266, 267. Includes superintendence or supervision 
of work. Kirk & Co. v. Shea-Adamson Co., D.C.Minn., 
21 F.Supp. 831, 837. 
Term "labor" as used in the Clayton Act is not limited 
to the work of manual laborers or of mechanics, but 
comprises intellectual labor as well. U. S. v. National 
Ass'n of Real Estate Boards, D.C.D.C., 84 F.Supp. 802, 
803. 
A Spanish land measure, in use in Mexico and former
ly in Texas, equivalent to 177% acres. 
See also Agricultural labor; Farm labor or laborer; La
borer. 
Labor agreement. See Labor contract. 
Labor a jury. To tamper with a jury; to endeavor to 
influence them in their verdict, or their verdict general
ly. Jury tampering is a crime. See e.g. 18 U.S.C.A. 
§§ 1503, 1504. 
Laborariis /leyb;}reriy;}s/. An ancient. writ against per
sons who refused to serve and do labor, and who had no 
means of living; or against such as, having served in the 
winter, refused to serve in the summer. 
Labor contract. Contract between employer and em
ployees (i.e. union) which governs working conditions, 
wages, fringe benefits, and grievances. See Collective 
bargaining agreement; Master agreement; More favorable 
terms clause. 
Labor dispute. Term generally includes any controver
sy between employers and employees concerning terms, 
tenure, hours, wages, fringe benefits, or conditions of 
employment, or concerning the association or represen
tation of persons in negotiating, fixing, maintaining, 
changing, or seeking to arrange terms or conditions or 
employment. National Labor Relations Act, § 2(9). 
However, not every activity of labor organization and 
not even every controversy in which it may become 
involved is "labor dispute" within National Labor Rela
tions Act. N. L. R. B. v. International Longshoremen's 
Ass'n, Md., 332 F.2d 992, 995, 996. 
Laborer. The word ordinarily denotes one who subsists 
by physical labor. American Surety Co. of New York v. 
Stuart, Tex.Civ.App., 151 S.W.2d 886, 888. One who, as 
a means of livelihood, performs work and labor for 
another. Person who follows any legitimate employ
ment or discharges the duties of any office. Devillier v. 
City of Opelousas, La.App., 247 So.2d 412, 416. See 
Farm labor or laborer; Labor; Work. 
Laborers' lien. Species of non-possessory lien which 
gives preference to laborer who works on job for pay
ment of his wages ahead of general creditors. Such 
liens are generally governed by state statutes. See 
Mechanic's lien. 
Labor-management relations. Term used to describe 
broad spectrum of activities which concern relationship 
of employees to employers both union and non-union. 
See Fair Labor Standards Act; Labor-Management Rela
tions Act; National Labor Relations Act; National Labor 
Relations Board; Wage and hour laws. 
Labor-Management Relations Act. Federal statute 
(Taft-Hartley Act) which regulates certain union activi
ties, permits suits against unions for proscribed acts, 
prohibits certain strikes and boycotts and provides ma
chinery for settling strikes which involve national emer
gencies. 29 U.S.C.A. § 141 et seq. 
Labor organization. Any organization of any kind, or 
any agency or employee representation committee, 
group, association, or plan so engaged in which employ
ees participate and which exists for the purpose, in 
874

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875 
whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay; hours, or 
other terms or conditions of employment, and any con
ference, general committee, joint or system board, or 
joint council so engaged which is subordinate to a na
tional or international labor organization, other than a 
State or local central body. National Labor Relations 
Act, § 2(5); 29 V.S.C.A. § 152(5). 
A combination of workers usually, but not necessarily, 
of the same trade or of several allied trades, for securing 
by united action, the most favorable conditions as re
gards wages, hours of labor, etc., for its members. 
See also Closed shop; Labor union; Open shop. 
Labor picketing. The act of patrolling in motion at or 
near employer or customer entrances; usually carrying 
placards with a terse legend communicating the gist of 
the union's claims. Certain forms are prohibited. 
Landrum-Griffin Act, § 8(b)(7). See also Picketing. 
Labor relations acts. State and federal laws that regu
late relations between employers and employees; e.g. 
Fair Labor Standards Act; Equal Pay Act. See Labor
management relations. 
Labor Relations Board. See National Labor Relations 
Board. 
Labor standards. See Fair Labor Standards Act. 
Labor union. A combination or association of workers 
organized for purpose of securing favorable wages, im
proved labor conditions, better hours of labor, etc., and 
righting grievances against employers. Such unions 
normally represent trades, crafts, and other skilled 
workers (e.g. plumbers, truck drivers). See also Labor 
organization; Union. 
Lacey Act. An act of Congress, May 25, 1900, under 
which the states may enforce game laws against ani
mals, birds, etc., imported from other states or countries. 
See 16 U.S.c.A. § 661 et seq. See also Game laws. 
La chambre des esteilles. The star-chamber. 
Laches Ilrech�z/leych�z/h�sh�z/. "Doctrine of laches," is 
based upon maxim that equity aids the vigilant and not 
those who slumber on their rights. It is defined as 
neglect to assert a right or claim which, taken together 
with lapse of time and other circumstances causing 
prejudice to adverse party, operates as bar in court of 
equity. Wooded Shores Property Owners Ass'n, Inc. v. 
Mathews, 37 IlI.App.3d 334, 345 N.E.2d 186, 189. The 
neglect for an unreasonable and unexplained length of 
time under circumstances permitting diligence, to do 
what in law, should have been done. Lake Development 
Enterprises, Inc. v. Kojetinsky, Mo.App., 410 S.W.2d 361, 
367. 
Neglect or omission to assert right as, taken in con
junction with lapse of time and other circumstances, 
causes prejudice to adverse party, People ex reI. Mulvey 
v. City of Chicago, 292 Ill.App. 589, 12 N.E.2d 13, 16; 
neglect or omission to do what one should do as war
rants presumption that one has abandoned right or 
claim, Eldridge v. Idaho State Penitentiary, 54 Idaho 
213, 30 P.2d 781, 784; negligence by which another has 
LACK OF JURISDICTION 
been led into changing his condition with respect to 
property or right, Heyburn Bldg. Co. v. Highland Motor 
Transfer Co., 245 Ky. 514, 53 S.W.2d 944, 946; negli
gence or omission seasonably to assert a right, Davidson 
v. Grady, C.C.A.Fla., 105 F.2d 405, 408; omission of 
something which a party might do and might reasonably 
be expected to do towards vindication or enforcement of 
his rights, McCauley v. Northern Texas Traction Co., 
Tex.Civ.App., 21 S.W.2d 309, 313; omission to do what 
law requires to protect one's rights under circumstances 
misleading or prejudicing adverse party; unconsciona
ble, undue, unexcused, unexplained or unreasonable de
lay in assertion of right, Loveland Camp No. 83, W. O. 
W., v. Woodmen Bldg. & Benev. Ass'n, 108 Colo. 297, 116 
P.2d 195, 199; unreasonable or unexplained delay in 
asserting right which works disadvantage to another, 
Kennedy v. Denny, 237 Ky. 649, 36 S.W.2d 41, 42. 
Conduct of party which has placed other party in a 
situation where his rights will be imperiled and his 
defenses embarrassed is a basis of laches. State v. 
Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 19. Knowl
edge, unreasonable delay, and change of position are 
essential elements. Shanik v. White Sewing Mach. Cor
poration, 25 DeI.Ch. 371, 19 A.2d 831, 837. Laches 
requires an element of estoppel or neglect which has 
operated to prejudice of defendant. Scarbrough v. Pick
ens, 26 Tenn.App. 213, 170 S.W.2d 585, 588. See also 
Equitable estoppel. 
Laches, estoppel by / �st6p�1 bay lrech�z/. A failure to 
do something which should be done or to claim or 
enforce a right at a proper time. Hutchinson v. Kenney, 
C.C.A.N.C., 27 F.2d 254, 256. A neglect to do something 
which one should do, or to seek to enforce a right at a 
proper time. A species of "equitable estoppel" or "estop
pel by matter in pais." See Equitable estoppel; In pais, 
estoppel. 
An element of the doctrine is that the defendant's 
alleged change of position for the worse must have been 
induced by or resulted from the conduct, misrepresenta
tion, or silence of the plaintiff. Croyle v. Croyle, 184 
Md. 126, 40 A.2d 374, 379. Delay in enforcement of 
rights until condition of other party has become so 
changed that he cannot be restored to his former state. 
Wisdom's Adm'r v. Sims, 284 Ky. 258, 144 S.W.2d 232, 
235, 236. Essence of "laches" is estoppel. Burke v. 
Gunther, 128 N.J.Eq. 565, 17 A.2d 481, 487. To create 
"estoppel by laches" party sought to be estopped must 
with knowledge of transaction have done something to 
mislead other party to his prejudice. Wisdom's Adm'r v. 
Sims, 284 Ky. 258, 144 S.W.2d 232, 235, 236. See also 
Laches. 
Lack of jurisdiction. The phrase may mean lack of 
power of a court to act in a particular manner or to give 
certain kinds of relief. In re Rowe's Estate, 66 Cal. 
App.2d 594, 152 P.2d 765, 770. It may consist in court's 
total want of power to act at all, or lack of power to act 
in particular case because conditions essential to exer
cise of jurisdiction have not been complied with, or may 
consist of lack of jurisdiction over subject matter or over 
person. See Jurisdiction.

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LACTA 
La conscience est la plus changeante des regles Ila 
konsiy6ns ey la plyuw shonzh6nt dey reygb /. Con
science is the most changeable of rules. 
Lacta Ilc�kt�/. L. Lat. In old English law, defect in the 
weight of money; lack of weight. This word and the 
verb "lactare" are used in an assise or statute of the 
sixth year of King John. 
Lada Ileyd�/. In old English law, a court of justice; a 
lade or lath. 
In Saxon law, a purgation, or mode of trial by which 
one purged himself of an accusation; as by oath or 
ordeal. A watercourse; a trench or canal for draining 
marshy grounds. In old English, a lade or lode. 
Lade, or lode. The mouth of a river. 
Laden in bulk. A term of maritime law, applied to a 
vessel which is freighted with a cargo which is neither 
in casks, boxes, bales, nor cases, but lies loose in the 
hold, being defended from wet or moisture by a number 
of mats and a quantity of dunnage. Cargoes of corn, 
salt, etc., are usually so shipped. 
Lading, bill of. See Bill of lading. 
Lady. In English law, the title belonging to the wife of a 
peer, and (by courtesy) the wife of a baronet or knight, 
and also to any woman, married or sole, whose father 
was a nobleman of a rank not lower than that of earl. 
Lady-court. In old English law, the court of a lady of 
the manor. 
Lady's friend. The style of an officer of the English 
house of commons, whose duty was to secure a suitable 
provision for the . wife, when her husband sought a 
divorce by special act of parliament. The act of 1857 
abolished parliamentary divorces, and this office with 
them. 
Lren (Anglo-Saxon). A loan. See Beneficium. 
Lrenland I leynlci!nd I . Land held of a superior whether 
much or little. Land given to the lessee and to two or 
three successive heirs of his; synonymous with loan 
land. This species of tenure seems to have been re
placed by that of holding by book or bocland. See 
Folc-Iand. 
Lresa majestas lliyz� m�jestres/. Lat. Leze-majesty, or 
injured majesty; high treason. It is a phrase taken 
from the civil law, and anciently. meant any offense 
against the king's person or dignity. 
Lresione fidel, suits pro Is(y)uwts prow liyz(h)iy6wniy 
faydiyay I. Suits in the ecclesiastical courts for spiritual 
offenses against conscience, for non-payment of debts, or 
breaches of civil contracts. This attempt to turn the 
ecclesiastical courts into courts of equity was checked by 
the constitutions of Clarendon, A.D.1 164. 3 Bl.Comm. 
52. 
Lresio ultra dimidium vel enormis lliyz(h)(i)yow �ltr� 
d�midiy�m vel �n6rm�s/. In Roman Jaw, the injury 
sustained by one of the parties to an onerous contract 
when he had been overreached by the other to the 
extent of more than one-half of the value of the subject-
876 
matter; e.g. , when a vendor had not received half the 
value of property sold, or the purchaser had paid more 
than double value. 
Lresiwerp lliyz�w�rp/. A thing surrendered into the 
hands or power of another; a thing given or delivered. 
Lret lliyt/. In old English law, one of a class between 
servile and free. 
Lafordswic. I(h)lc�v�rdzways/. In Saxon law, a betray
ing of one's lord or master. 
Laga lleyg�/. L. Lat., from the Saxon "lag." Law; a 
law. 
Lagan Ilc�g�n/. See Ligan. 
Lage Iley 11 6/. Laws in early Saxon times; e.g., Dane
lage, Mercen-Iage, and West Saxon Lage (see those ti
tles). 
Lage day. In old English law, a law day; a time of open 
court; the day of the county court; a juridical day. 
Lage-man /leym�n/. A lawful man; a good and lawful 
man. A juror. 
Laghday or lahdy 116dey I. A day of open court; a day 
of the county court. 
Lagu Iley 116/ . In old English law; law; also used to 
express the territory or district in which a particular 
law was in force, as Dena lagu, Mercna lagu, etc. See 
Lage. 
Lahlslit. A breach of law. A mulct for an offense, viz., 
twelve "ores." 
Lahman, or lagemannus 1l6m�n/leym�n/lrej�mren�s/. 
An old word for a lawyer. 
Laicus Iley�k�s/. Lat. A layman. One who is not in 
holy orders, or not engaged in the ministry of religion. 
Lairwite, or lairesite Ilerwayt/. A fine for adultery or 
fornication, anciently paid to the lords of some manors. 
Lais gents Iley zhon(ts)/. L. Fr. Lay people; a jury. 
Laissez-faire Ilesey fer/. Expresses a political-economic 
philosophy of the government of allowing the market
place to operate relatively free of restrictions and inter
vention. 
Laity. Those persons who do not make a part of the 
clergy. 
Laiz, leez (0. Fr.). A legate. 
Lake. A considerable body of standing water in a de
pression of land or expanded part of a river. An inland 
body of water or naturally enclosed basin serving to 
drain surrounding country; or a body of water of consid
erable size surrounded by land; a widened portion of a 
river or a lagoon. Wood v. Maitland, 169 Misc. 484, 8 
N.Y.S.2d 146, 150. Body of water, more or less, stag
nant, in which the water is supplied from drainage. 
Amerada Petroleum Corporation v. State Mineral 
Board, 203 La. 473, 14 So.2d 61, 68, 69. An inland body 
of water of considerable size occupying natural basin or 
depression in earth's surface below ordinary drainage 
level of region. Keener v. Sharp, Mo.App., 95 S.W.2d

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877 
648, 652. A large body of water, contained in a depres
sion of the earth's surface, and supplied from the drain
age of a more or less extended area. 
La ley favour la vie d'un home Ila ley favur la viy 
d�n6m/. The law favors the life of a man. 
La ley favour l'enheritance d'un home Ila ley favur 
loner�t6ns d�n6m/. The law favors the inheritance of a 
man. 
La ley voit plus tost suffer un mischeife que un 
inconvenience Ila ley vwa plyuwt6wst sufey �n 
mischiyf k�n reIJk�nveyn(i)y6ns/. The law will sooner 
suffer a mischief than an inconvenience. It is holden 
for an inconvenience that any of the maxims of the law 
should be broken, though a private man suffer loss. 
Lambard's Archaion Ilrembardz arkay�n/. A discourse 
upon the high court of justice in England, by William 
Lambard, published in 1635. 
Lambard's Archaionomia Ilrembardz arkiy�n6wmiy�/. 
A work printed in 1568, containing the Anglo-Saxon 
laws, those of William the Conqueror, and of Henry I. 
Lambard's Eirenarcha Ilrembardz ayr�nark�/. A work 
upon the office of a justice of the peace, which, having 
gone through two editions, one in 1579, the other in 
1581, was reprinted in English in 1599. 
Lambeth degree Ilremb�(} d�griy/. In English law, a 
degree conferred by the Archbishop of Canterbury, in 
prejudice of the universities. 
Lame duck. An elected officeholder who is to be suc
ceeded by another, between the time of the election and 
the date that his successor is to take office. A specu
lator in stock who has overbought and cannot meet his 
commitments. 
Lame Duck Amendment. Twentieth Amendment to U. 
S. Constitution, abolishing the short congressional term. 
Lame duck session. Legislative session conducted after 
election of new members but before they are installed 
and hence one in which some participants are voting for 
the last time as elected officials because of failure to 
become reelected or voluntary retirement. 
Lammas lands Ilrem�s lrendz/. Lands over which there 
is a right of pasturage by persons other than the owner 
from about Lammas, or reaping time, until sowing time. 
Land. In the most general sense, comprehends any 
ground, soil, or earth whatsoever; including fields, 
meadows, pastures, woods, moors, waters, marshes, and 
rock. State v. Coff ee, 556 P.2d 11 85, 11 93, 97 Idaho 905. 
In its more limited sense, "land" denotes the quantity 
and character of the interest or estate which a person 
may own in land. Holmes v. U. S., C.C.A.O kl., 53 F.2d 
960, 963. "Land" may include any estate or interest in 
lands, either legal or equitable, as well as easements and 
incorporeal hereditaments. Reynard v. City of Caldwell, 
55 Idaho 342, 42 P.2d 292, 297. The land is one thing, 
and the estate in land is another thing, for an estate in 
land is a time in land or land for a time. 
LAND BOUNDARIES 
Technically land signifies everything which may be 
holden; and the term is defined as comprehending all 
things of a permanent and substantial nature, and even 
of an unsubstantial, provided they be permanent. Rey
nard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292, 296. 
Ordinarily, the term is used as descriptive of the subject 
of ownership and not the ownership. Southern Pac. Co. 
v. Riverside County, 35 Cal.App.2d 380, 95 P.2d 688, 692. 
Land is the material of the earth, whatever may be 
the ingredients of which it is composed, whether soil, 
rock, or other substance, and includes free or occupied 
space for an indefinite distance upwards as well as 
downwards, subject to limitations upon the use of air
space imposed, and rights in the use of airspace granted, 
by law. Calif. Civil Code, § 659. See Air rights. 
The term "land" may be used interchangeably with 
"property"; it may include anything that may be 
classed as real estate or real property. Reynard v. City 
of Caldwell, 55 Idaho 342, 42 P.2d 292, 297. 
See also Lands; Ownership; Parcel; Partition; Property 
(Real property); Real estate. 
Accommodation lands. See Accommodation lands. 
Bounty lands. See Bounty . 
Certificate lands. See Certificate lands. 
Crown lands. See Crown lands. 
Demesne lands. See Demesne. 
Donation lands. See Donation lands. 
Fabric lands. See Fabric lands. 
General land offi ce. See General Land Office. 
Land patent. See Patent. 
Mineral lands. See Mineral lands. 
Place lands. See Place lands. 
Public lands. See Public lands. 
School lands. See School. 
Seated land. See Seated land. 
Swamp and overflowed lands. See Swamp and over
flowed lands. 
Tide lands. See Tide. 
Landa. An open field without wood; a lawnd or lawn. 
Landagende, landhlaford, or landrica Ilrendeyj�ndl 
lrendlord/lrend(h)lrev�rd/lrendr�k�/. In Saxon law, a 
proprietor of land; lord of the soil. 
Land bank. A federally created bank under the Federal 
Farm Loan Act and organized to make loans on farm 
security at low interest rates. May also describe pro
gram in which land is retired from agricultural produc
tion for use in conservation or in tree cultivation and as 
such is sometimes called a Soil Bank. See Federal Home 
Loan Banks. 
Landboc I lrendbuk I . In Saxon law, a charter or deed by 
which lands or tenements were given or held. 
Land boundaries. Limits of land holdings described by 
linear measurements of the borders, or by points of the

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LAND BOUNDARIES 
compass, or by stationary markers. See Boundaries; 
Forty; Landmark; Land measure; Legal description; Lot 
line; Metes and bounds; Plat map; Section. 
Land certificate. An obligation of government entitling 
owner to secure designated quantity of land by following 
the requirements of law. State v. Balli, Tex.Civ.App., 
173 S.W.2d 522, 538. It contains a description of the 
land as it appears on the register and the name and 
address of the proprietor, and is prima fa cie evidence of 
the truth of the matters therein set forth. See also Land 
warrant. 
Landcheap. In old English law, an ancient customary 
fine, paid either in money or cattle, at every alienation 
of land lying within some manor, or within the liberty of 
some borough. 
Land contract See Land sale contract. 
Land cop. The sale of land which was evidenced in 
early English law by the transfer of a rod or festuca 
(q.v.) as a symbol of possession which was handed by the 
seller to the reeve and by the reeve to the purchaser. 
The conveyance was made in court, it is supposed, for 
securing better evidence of it, and barring the claims of 
expectant heirs. 
Land court. In Massachusetts such court has exclusive 
original jurisdiction of all applications for registration of 
title to land within Commonwealth, and power to hear 
and determine all questions arising upon such applica
tions. It has exclusive original jurisdiction over writs of 
entry and various petitions for clearing title to real 
estate; of petitions for determining validity and extent 
of municipal zoning ordinances, by-laws and regulations; 
original concurrent general equity jurisdiction in mat
ters relating to land except in cases of specific perform
ance of contracts relating to same; exclusive original 
jurisdiction of proceedings for foreclosure of and re
demption from tax titles; and it has original jurisdic
tion, concurrent with Supreme Judicial, superior and 
probate courts, of declaratory judgment proceedings. 
Land damages. See Damages. 
Land department. See Bureau of Land Management; 
Interior Department. 
Land descriptions. See Land boundaries. 
Land district. A division of a state or territory, created 
by federal authority, in which is located a United States 
land office, with a "register of the land office" and a 
"receiver of public money," for the disposition of the 
public lands within the district. 
Landed. Consisting in real estate or land; having an 
estate in land. 
Landed estate or property. A colloquial or popular 
phrase to denote real property. Landed estate ordinari
ly means an interest in and pertaining to lands. Real 
estate in general, or sometimes, by local usage, suburban 
or rural land, as distinguished from real estate situated 
in a city. 
878 
Landed estates court. In English law, tribunals estab
lished by statute for the purpose of disposing more 
promptly and easily than could be done through the 
ordinary judicial machinery, of incumbered real estate. 
These courts were first established in Ireland by the act 
of 11 & 12 Vict., c. 48, which being defective was 
followed by 12 & 13 Vict., c. 77. The purpose of these 
was to enable the owner, or a lessee for any less than 63 
years unexpired, of land subject to incumbrance, to 
apply to commissioners who constituted a court of 
record to direct a sale. This court was called the Incum
bered Estates Court. A new tribunal called the Landed 
Estates Court was created by 21 & 22 Vict., c. 72, which 
abolished the former court and established a permanent 
tribunal. 
Landed securities. Mortgages or other encumbrances 
affecting land. 
Landefricus Ihi!nd;}frayk;}s/. A landlord; a lord of the 
soil. 
Landegandman. In old English law, a kind of custom
ary tenant or inferior tenant of a manor. 
Land gabel. A tax or rent issuing out of land. 
Land grant. A donation of public lands to a subordinate 
government, a corporation, or an individual; as, from 
the United States to a state, or to a railroad company to 
aid in the construction of its road. See also Land patent 
under Patent. 
Landhlaford Ilrendlord/. In old English law, a proprie
tor of land; lord of the soil. 
Land improvements. See Improvement. 
Landing. A place on a river or other navigable water 
for loading and unloading of goods, or for the reception 
and delivery of passengers or pleasure boats. The ter
minus of a road on a river or other navigable water for 
these purposes. Act or process of coming back to land 
after voyage or flight. See also Port. 
Landirecta Ilrend;}rekt;}I . In Saxon law, services and 
duties laid upon all that held land, including the three 
obligations called "trinoda necessitas," (q.v.) quasi land 
rights. 
Land, law of. See Law of the land. 
Landlocked. An expression applied to a piece of land 
belonging to one person and surrounded by land belong
ing to other persons, so that it cannot be approached 
except over their land. Access to such land will normal
ly be via an easement from surrounding landowner. 
Landlord. He of whom lands or tenements are holden. 
The owner of an estate in land, or a rental property, 
who has leased it to another person, called the "tenant." 
Also called "lessor." 
Landlord and tenant relationship. A phrase used to 
denote the familiar legal relation existing between les
sor and lessee of real estate. The relation is contractu
al. Smith v. Royal Ins. Co., C.C.A.Cal., 111 F.2d 667, 
670, 671. A lease (or agreement therefor) of lands for a 
term of years, from year to year, for life, or at will

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879 
creates the relation. The relation exists where one 
person occupies premises of another in subordination to 
other's title or rights and with his permission or con
sent. There must be reversion in landlord, an estate in 
tenant, transfer of possession and control of premises, 
and, generally, a contract, express or implied. Coggins 
v. Gregorio, C.C.A.N.M., 97 F.2d 948, 950, 951. See also 
Lease. 
Landlord's warrant. A distress warrant; a warrant 
from a landlord to levy upon the tenant's goods and 
chattels, and sell the same at public sale, to compel 
payment of the rent or the observance of some other 
stipulation in the lease. See Distraint; Distress. See also 
Habitability (Warranty of habitability). 
Land management. See Bureau of Land Management. 
Landmark. A feature of the land, monument, marker, 
or other erection set up on the boundary line of two 
adjoining estates, to fix such boundary. The removing 
of a landmark is a wrong for which an action lies. 
Building or site having historical significance. See also 
Monument. 
Landmark decision. A decision of the Supreme Court 
that significantly changes existing law. See e.g. , Brown 
decision; Miranda Rule. 
Land measure. 
1 mile----80 chains, 320 rods, 1,760 yards or 5,280 feet. 
16 1/2 feet-1 rod, perch or pole. 
1 chain----66 feet, 100 links or 4 rods. 
1 link-7.92 inches. 
25 links-1 rod. 
4 rods-1 chain. 
144 square inches-1 square foot. 
9 square feet-1 square yard. 
30 1/4 square yards-1 square rod. 
160 square rods-1 acre. 
10,000 square links-1 square chain. 
10 square chains-1 acre. 
1 acre-208.708 feet by 208.708 feet. 
1 acre-43,560 square feet. 
1 acre-4,840 square yards. 
1 acre-160 square rods. 
640 acres-1 square mile or section. 
36 square miles or sections-1 township. 
See also Land boundaries; Survey. 
Land offices. Government offices, administered by Bu
reau of Land Management, established principally in 
the Western States, for the transaction of local business 
relating to the survey, location, settlement, pre-emption, 
and sale of the public lands. A former primary function 
of these offices was to administer land grants. 
LAND TENAN1' 
Land patent. An instrument conveying a grant of pub
lic land; also, the land so conveyed. See also Patent. 
Land-poor. Term used to describe person that owns a 
substantial amount of land, but is nonetheless short of 
cash to pay bills because, for example, land is unproduc
tive, market for crops depressed, etc. 
Land-reeve. In old English law, a person whose busi
ness it was to overlook certain parts of a farm or estate; 
to attend not only to the woods and hedge-timber, but 
also to the state of the fences, gates, buildings, private 
roads, driftways, and water-courses; and likewise to the 
stocking of commons, and encroachments of every kind, 
as well as to prevent or detect waste and spoil in 
general, whether by the tenants or others; and to report 
the same to the manager or land steward. 
Land revenues. This term denotes income derived from 
crown lands in Great Britain. These lands have been so 
largely granted away to subjects that they are now 
contracted within very narrow limits. 
Landrum-Grifim Act. Federal statute enacted in 1959, 
known as the Labor-Management Reporting and Disclo
sure Act, designed to curb corruption in union leader
ship and undemocratic conduct of internal union affairs 
as well as to outlaw certain types of secondary boycotts 
and "hot cargo" provisions in collective bargaining 
agreements. 29 U.S.C.A. § 401 et seq. 
Lands. This term, the plural of "land," is said, at 
common law, to be a word of less extensive signification 
than either "tenements" or "hereditaments." But in 
some of the states it has been provided by statute that it 
shall include both those terms. See also Land. 
Land sale contract. Contract for the purchase and sale 
of land upon execution of which title is transferred. 
Term commonly refers to an installment contract for 
the sale of land whereby purchaser (vendee) receives the 
deed from the owner (vendor) upon payment of final 
installment. The vendor retains legal title to the prop
erty (deed) as security for payment of contract price. 
May also be called "contract for deed", or "installment 
land contract". 
Lands, public. See Public lands. 
Lands, tenements, and hereditaments. The technical 
and most comprehensive description of real property, as 
"goods and chattels" is of personalty. The term refers 
to property in land. Denver Joint Stock Land Bank of 
Denver v. Dixon, 57 Wyo. 523, 122 P.2d 842, 846. Under 
ancient law, the words comprehended only freehold es
tate and did not apply to easements or other incorporeal 
hereditaments. Hester v. Sawyers, 41 N.M. 497, 71 P.2d 
646, 649. 
Land tax. Property tax. A tax laid upon the legal or 
beneficial owner of real property, and apportioned upon 
the assessed value of his land. A tax on land. Texas 
Co. v. Moynier, 129 Cal.App. 738, 19 P.2d 280, 282. See 
Property tax. 
Land tenant. The person actually in possession of land.

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LAND TITLES AND TRANSFER ACT 
Land Titles and Transfer Act. An English statute (38 
& 39 Vict., c. 87) providing for the establishment of a 
registry for titles to real property, and making sundry 
provisions for the transfer of lands and the recording of 
the evidences thereof. It presents some analogies to the 
recording laws of the American states; e.g. Registry of 
Deeds office in many states. This Act was superceded 
by a system of title registration in 1925. 
Land trust. Property ownership arrangement whereby, 
pursuant to statute, trustee holds legal and equitable 
title to trust, and beneficiary, who has personal property 
interest, retains power of direction over trustee and 
power to manage and receive income from trust proper
ty. Pepper Pot II, Inc. v. Imperial Realty Co., 1 Dist., 
133 Ill.App.3d 951, 88 Ill. Dec. 929, 931, 479 N.E.2d 949, 
951. A land trust (also called Illinois Land Trust) is a 
trust in which corpus consists of real estate and in 
which deed to trustee appears to confer upon him full 
powers to deal with real estate and complete legal and 
equitable title to trust property. So far as public 
records are concerned, trustee's powers are complete. 
Such powers, however, are in fact restricted by a trust 
agreement mentioned in the deed in trust. Such trust 
agreements typically vest in beneficiary full powers of 
management and control. However, beneficiary cannot 
deal with property as if no trust existed. Such trusts 
generally continue for a definite term. Unlike trustees 
under classical testamentary or inter vivos trust, trust
ees under land trust"may be personally liable. Taylor v. 
Richmond's New Approach Assoc., Inc., Fla.App., 351 
So.2d 1094. 
Land trust certificate. Instrument granting partic
ipation in benefits of ownership of property, while trust
ee retains title. See Land Trust. 
Land use planning. Generic term used to describe 
activities such as zoning, control of real estate develop
ments and use, environmental impact studies and the 
like. Many states have land use planning laws which 
are implemented by local zoning and land use laws and 
ordinances. See also Master plan; Planned unit develop
ment (PUD); Zoning. 
Land waiter. In English law, an officer of the custom
house, whose duty is, upon landing any merchandise, to 
examine, taste, weigh, or measure it, and to take an 
account thereof. 
Land warrant. A warrant issued at the local land 
offices of the United States to purchasers of public 
lands, on the surrender of which at the general land 
office at Washington, they receive a conveyance from 
the general government. See Land certificate. 
The evidence which the state, on good consideration, 
gives that the person therein named is entitled to the 
quantity of land therein specified, the bounds and de
scription of which the owner of the warrant may fix by 
entry and survey, in the section of country set apart for 
its location and satisfaction. 
Langeman. A lord of a manor. 
Langemanni. The lords of manors. 
880 
Language. Any means of conveying or communicating 
ideas; specifically, human speech, or the expression of 
ideas by written characters or by means of sign lan
guage. The letter, or grammatical import, of a doc
ument or instrument, as distinguished from its spirit; as 
"the language of the statute." As to off ensive language, 
see Offensive language. 
Languidus /lc:eIJgw�d�s/. (Lat., sick.) In common law 
practice, the name of a return made by the sheriff when 
a defendant, whom he had taken by virtue of process, 
was so dangerously sick that to remove him would 
endanger his life or health. 
Lanham Trademark Act. Federal statute enacted in 
1946 which revised federal trademark law and registra
tion process. Purposes of Act (15 U.S.C.A. § 1501 et 
seq.), are to protect the public so it may buy a product 
bearing a particular trademark with confidence that it 
will get the product it wants. It also protects the holder 
of the mark's investment in time and money from its 
misappropriation by pirates and cheats. Getty Petrole
um Corp. v. Bartco Petroleum Corp., C.A.N.Y., 858 F.2d 
103. See also Likelihood of confusion. 
Lanns manus. (Old Fr.) A lord of the manor. 
Lapidation Ilrep�deys h�n/. The act of stoning a person 
to death. 
Lappage Ilrep�j/. A term synonymous with "interfer
ence," "conflict," "interlock," "lap" and "overlap" as 
regards adverse possession. It applies to a situation 
existing when a deed under which one party claims and 
grant under which another claims cover in large part 
the same land. Turk v. Wilson's Heirs, 265 Ky. 78, 98 
S.W.2d 4, 8. 
Lapse, v. To glide; to pass slowly, silently, or by de
grees. To slip; to deviate from the proper path. To fall 
or fail. Life & Casualty Ins. Co. of Tennessee v. Wheel
er, 265 Ky. 269, 96 S.W.2d 753, 755. See also Expiration; 
Termination. 
Lapse, n. The termination or failure of a right or 
privilege through neglect to exercise it within some 
limit of time, or through failure of some contingency. 
Failure to vest a bequest or devise by reason of death 
of devisee of legatee prior to death of testator. Farmers 
and Merchants State Bank v. Feltis, 150 Ind.App. 284, 
276 N.E.2d 204, 206. The death of a legatee before the 
testator causes the legacy to lapse and to fall into the 
residue unless there is a statute which provides for its 
disposition as, for example, if the legatee is a child or 
relation of the testator, the legacy passes to the issue of 
the legatee. 
The expiration of a right either by the death of the 
holder or upon the expiration of a period of time. Thus, 
a power of appointment lapses upon the death of the 
holder if such holder has not exercised the power during 
life or at death (i.e., through a will). 
Termination of insurance policy because of failure to 
pay the premium.

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881 
In the law of wills, the failure of a testamentary gift. 
Gredig v. Sterling, C.C. A.Tex., 47 F.2d 832, 834. 
See also Anti-lapse statute. 
Lapsed devise. See Devise. 
Lapsed legacy. See Legacy. 
Lapsed policy. Insurance policy on which there has 
been default in payment of premiums. Policy remain
ing in force according to statutory provisions after such 
default (normally a 30 or 31 day grace period on non
payment of premiums is provided). 
Lapse patent. A patent for land issued in substitution 
for an earlier patent to the same land, which was issued 
to another party, but has lapsed in consequence of his 
neglect to avail himself of it. 
Lapse statutes. Those state statutory enactments which 
prevent the lapse or passing into the residue or by 
intestacy of legacies and devises when the legatee or 
devisee predeceases the testator, and which commonly 
provide that, if the legatee or devisee is a child or other 
relation of the testator, the legacy or devise passes to the 
issue of such legatee or devisee. 
Larcenous Ilars:m;}s/. Having the character of larceny; 
as a "larcenous taking." Contemplating or intending 
larceny; as a "larcenous purpose." 
Larcenous intent. A larcenous intent exists where a 
man knowingly takes and carries away the goods of 
another without any claim or pretense of right, with 
intent wholly to deprive the owner of them or convert 
them to his own use. 
Larceny Ilars;}niy I. Felonious stealing, taking and 
carrying, leading, riding, or driving away another's per
sonal property, with intent to convert it or to deprive 
owner thereof. The unlawful taking and carrying away 
of property of another with intent to appropriate it to 
use inconsistent with latter's rights. U. S. v. Johnson, 
140 U.S.A pp.D.C. 54, 433 F.2d 11 60, 1163. The essential 
elements of a "larceny" are an actual or constructive 
taking away of the goods or property of another without 
the consent and against the will of the owner or posses
sor and with a felonious intent to convert the property 
to the use of someone other than the owner. U.S. v. 
Waronek, 582 F.2d 115 8. 
Obtaining possession of property by frau d, trick or 
device with preconceived design or intent to appropriate, 
convert or steal is "larceny." John v. United States, 65 
U.S.A pp.D.C. 11, 79 F.2d 136; People v. Cook, 10 Cal. 
App.2d 54, 51 P.2d 169, 170. 
Common-law distinctions between obtaining money 
under false pretenses, embezzlement, and larceny no 
longer exist in many states; all such crimes being em
braced within general definition of "larceny." Some 
states classify larceny as either grand or petit, depend
ing on the property's value. 
See also Burglary; Robbery; Shoplifting; Stolen; Theft. 
Compound larceny. Larceny or theft accomplished by 
taking the thing stolen either from one's person or from 
his house; otherwise called "mixed" larceny, and distin-
LARCENY 
guished from usimple" or "plain" larceny, in which the 
theft is not aggravated by such an intrusion either upon 
the person or the dwelling. Sometimes referred to as 
larceny from the person. 
Constructive larceny. One where the felonious intent to 
appropriate the goods to his own use, at the time of the 
asportation, is made out by construction from the defen
dant's conduct, although, originally, the taking was not 
apparently felonious. 
False pretenses and larceny distinguished. See False 
pretenses. 
Grand larceny. Taking and carrying away the personal 
property of another to a value in excess of $100.00 (or 
whatever the cut-off amount may be in a given jurisdic
tion) with the intent to feloniously deprive the owner or 
possessor of it permanently. Distinguished from petit 
larceny (q.v.) only by the value of the property stolen. 
In England, simple larceny, was originally divided 
into two sorts,-grand larceny, where the value of the 
goods stolen was above twelve pence, and petit larceny, 
where their value was equal to or below that sum. 4 
Bl.Comm. 229. The distinction was abolished in Eng
land by St. 7 & 8 Geo. IV, c. 29, and is not generally 
recognized in the United States, although in a few states 
there is a statutory offense of grand larceny, one essen
tial element of which is the value of the goods stolen, 
which value varies. 
Larceny by bailee. The crime of larceny committed 
where any person, being a bailee of any property, shall 
fraudulently take or convert the same to his own use, or 
to the use of any other person except the owner thereof, 
although he shall not break bulk or otherwise determine 
the bailment. 
Larceny by extortion. A person is guilty of theft if he 
purposely obtains property of another by threatening to: 
(1) inflict bodily injury on anyone or commit any other 
criminal offense; or (2) accuse anyone of a criminal 
offense; or (3) expose any secret tending to subject any 
person to hatred, contempt or ridicule, or to impair his 
credit or business repute; or (4) take or withhold action 
as an official, or cause an official to take or withhold 
action; or (5) bring about or continue a strike, boycott or 
other collective unofficial action, if the property is not 
demanded or received for the benefit of the group in 
whose interest the actor purports to act; or (6) testify or 
provide information or withhold testimony or informa
tion with respect to another's legal claim or defense; or 
(7) inflict any other harm which would not benefit the 
actor. Model Penal Code, § 223.4. See also Extortion. 
Larceny by fraud or deception. A person is guilty of 
theft if he purposely obtains property of another by 
deception. A person deceives if he purposely: (1) cre
ates or reinforces a false impression, including false 
impressions as to law, value, intention or other state of 
mind; but deception as to a person's intention from the 
act alone that he did not subsequently perform the 
promise; or (2) prevents another from acquiring infor
mation which would affect his judgment of a transac
tion; or (3) fails to correct a false impression which the

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LARCENY 
deceiver previously created or reinforced, or which the 
deceiver knows to be influencing another to whom he 
stands in a fiduciary or confidential relationship; or (4) 
fails to disclose a known lien, adverse claim or other 
legal impediment to the enjoyment of property which he 
transfers or encumbers in consideration for the property 
obtained, whether such impediment is or is not valid, or 
is or is not a matter of official record. Model Penal 
Code, § 223.3. 
Larceny by trick. See Larceny by fra ud or deception, 
above. 
Larceny fr om the person. Act of taking property from 
the person by merely lifting it from the person or 
pocket. State v. Stanton, Mo., 68 S.W.2d 811, 812. 
Larceny committed where the property stolen is on the 
person or in the immediate charge or custody of the 
person from whom the theft is made, but without such 
circumstances of force or violence as would constitute 
robbery, including pocket-picking and such like crimes. 
Larceny of auto. See Auto theft. 
Larceny of property lost, mislaid, or delivered by mistake. 
A person who comes into control of property of another 
that he knows to have been lost, mislaid, or delivered 
under a mistake as to the nature or amount of the 
property or the identity of the recipient is guilty of theft 
if, with purpose to deprive the owner thereof, he fails to 
take reasonable measures to restore the property to a 
person entitled to have it. Model Penal Code, § 223.5. 
Mixed larceny. Otherwise called "compound" or "com
plicated larceny;" that which is attended with circum
stances of aggravation or violence to the person, or 
taking from a house. 
Petit (Petty) larceny. Larceny of things or goods whose 
value is below a statutorily set amount (e.g. $100). The 
value at common law was twelve pence. Compare 
Grand larceny, above. 
Simple larceny. Felonious or wrongful taking and 
carrying away of personal goods of another with intent 
to steal, unattended by acts of violence. Larceny which 
is not complicated or aggravated with acts of violence. 
Larceny from the person, or with force and violence, is 
called "compound" larceny. 
Larger parcel. A term used in eminent domain pro
ceedings, signifying that the parcel taken is not a com
plete parcel but part of a "larger parcel"; the owner, 
therefore is entitled to damages from the severance as 
well as the value of the parcel taken. Unity of owner
ship, use, and contiguity must be present, although 
federal courts and some states do not require contiguity 
where there is a strong unity of use. 
Larons /ler;}nz/. In old English law, thieves. 
Lascivious /l;}siviy;}s/. Tending to excite lust; lewd; 
indecent; obscene; sexual impurity; tending to deprave 
the morals in respect to sexual relations; licentious. 
See Swearingen v. U. S., 161 U.S. 446, 16 S.Ct. 562, 40 
L.Ed. 765; People on Complaint of Sumner v. Dial Press, 
182 Misc.-416, 48 N.Y.S.2d 480, 481; Dunlop v. U. S., 165 
882 
U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799. Conduct which is 
wanton, lewd, and lustful, and tending to produce volup
tuous or lewd emotions. See Lewd; Obscene. 
Lascivious cohabitation. The offense committed by 
two persons (not married to each other) who live togeth
er in one habitation as man and wife and practice sexual 
intercourse. Such offense, where it still exists, is seldom 
enforced. 
Last, n. In old English law, signifies a burden; also a 
measure of weight used for certain commodities of the 
bulkier sort. 
Last, adj. Latest; ultimate; final; most recent. 
Last antecedent rule. A canon of statutory construc
tion that relative or qualifying words or phrases are to 
be applied to the words or phrases immediately preced
ing, and as not extending to or including other words, 
phrases, or clauses more remote, unless such extension 
or inclusion is clearly required by the intent and mean
ing of the context, or disclosed by an examination of the 
entire act. 
Last clear chance doctrine. This doctrine permits a 
plaintiff in a negligence action to recover, notwithstand
ing his own negligence, on a showing that the defendant 
had the last clear chance to avoid the accident. Jarrett 
v. Madifari, 67 A.D.2d 396, 415 N.Y.S.2d 644, 649. Un
der the doctrine of last clear chance (or "discovered 
peril" doctrine), as applied in automobile law, a plaintiff 
may recover from a defendant motorist for injuries or 
damages suffered, notwithstanding his own contributory 
negligence, where, as stated in terms of the essential 
elements of the doctrine, plaintiff was in a place of peril 
of which he was unaware or from which he was unable 
to extricate himself, the motorist discovered or had the 
opportunity to discover plaintiffs peril, and the motorist 
had the opportunity to avoid the accident through the 
exercise of reasonable care. The last clear chance doc
trine is not recognized in every jurisdiction and is sub
ject to limitations in others. There are many variant 
forms and applications of this doctrine in the jurisdic
tions which apply it. 
Doctrine imposes upon person duty to exercise ordi
nary care to avoid injury to another who has negligently 
put himself in position of peril, and who he can reason
ably apprehend is unconscious of or inattentive to peril 
or unable to avoid imminent harm. Vernon v. Crist, 28 
N.C.App. 631, 222 S.E.2d 445, 447. Necessary elements 
of doctrine are: (1) plaintiff was contributorily negligent 
by placing herself in a position of immediate peril, (2) 
plaintiff was unable to remove herself from such peril 
by the exercise of reasonable care, (3) defendant discov
ered or should have discovered plaintiffs dangerous 
situation in time so that by exercising reasonable care 
defendant could have prevented the accident, (4) defen
dant failed to exercise any reasonable care, and (5) 
defendant had the last clear chance to prevent the 
accident. Shanahan v. Patterson, Colo.App., 539 P.2d 
1289, 1290. 
See also Discovered peril doctrine.

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Last heir. In English law, he to whom lands come by 
escheat for want of lawful heirs; that is, in some cases, 
the lord of whom the lands were held; in others, the 
sovereign. 
Last illness. The illness terminating in person's death. 
Proto v. Chenoweth, 40 Ariz. 312, 11 P.2d 950, 951. 
Last-in, first-out (LIFO). A method of accounting which 
assumes that the most recent purchases are sold first. 
In times of inflation, the LIFO method results in a lower 
net income figure and lower inventory valuation than 
the FIFO method. This is due to the current costs being 
matched against current revenues and older costs and 
dollars which remain in inventory. 
A method of identifying and valuing inventories 
which assumes that last goods purchased are the first 
ones sold and therefore the goods left in inventory at the 
end of the year are assumed to be those first purchased. 
L. S. Ayres & Co. v. U. S., C.A.Ind., 285 F.2d 11 3, 11 4. 
Compare FIF O. 
Last resort, court of. A court from which there is no 
further appeal is called the "court of last resort." For 
example, the United States Supreme Court. 
Last sickness. See Last illness. 
Last will. Term used alone or with "and testament" to 
designate the instrument which ultimately fixes the 
disposition of real and personal property at death. 
Usually used in reference to most recent will of de
ceased. See Will. 
Lata culpa Ileyt;) k:llp;) I . Lat. In the law of bailment, 
gross fault or neglect; extreme negligence or careless
ness (nimia negligen tia). 
Lata culpa dolo requiparatur Ileyt;) k:llp;) d6wlo 
iykw;)p;)reyt;)r/. Gross negligence is equivalent to fraud. 
Latching. An under-ground survey. 
Late. Defunct; existing recently, but now dead. For
merly; recently; lately. 
Latens Ileytenz/. Lat. Latent; hidden; not apparent. 
See Ambigu itas. 
Latent. Hidden; concealed; dormant; that which does 
not appear upon the face of a thing; as, a latent ambi
guity or defect. 
Latent ambiguity. A defect which does not appear on 
the face of language used or an instrument being con
sidered. It arises when language is clear and intelligi
ble and suggests but a single meaning, but some extrin
sic fact or some extraneous evidence creates a necessity 
for interpretation or a choice between two or more 
possible meanings. Conkle v. Conkle, 31 Ohio App.2d 
44, 285 N.E.2d 883, 887. 
That species of uncertainty or ambiguity in an instru
ment which is not apparent from a reading of it but 
which is revealed when the terms of the instrument are 
applied or made operative; e.g. in a bill of lading goods 
are to be delivered at "Essex Railroad Wharf', and there 
are two such wharfs with the same name. Parol evi
dence is admissible to prove the intention of the party 
drawing the instrument. 
LATITA1' 
Parol evidence may be admitted to explain terms of 
contract, but not to contradict. S ee U.C.C. § 2-202. 
See also Ambiguity. Compare Patent ambiguity. 
Latent deed. A deed kept for twenty years or more in a 
strongbox or other secret place. 
Latent defect. A hidden or concealed defect. One 
which could not be discovered by reasonable and custom
ary observation or inspection; one not apparent on face 
of goods, product, document, etc. 
Defect of which owner has no knowledge, or which, in 
exercise of reasonable care, he should have had no 
knowledge. Biehl v. Poinier, 71 Wash.2d 492, 429 P.2d 
228, 23 1. One which cannot be discovered by observa
tion or inspection made with ordinary care. U.S. v. 
Lembke Const. Co., Inc., C.A.Ariz., 786 F.2d 1386, 1387. 
A latent defect in the title of a vendor of land is one not 
discoverable by inspection made with ordinary care, 
even though a matter of public record. 
Latent equity. See Equity. 
Lateral railroad. A lateral road is one which proceeds 
from some point on the main trunk between its termi
nal. It is but another name for a branch road, both 
being a part of the main road. An offshoot from main 
line of railroad. Union Pac. R. Co. v. Anderson, 167 Or. 
687, 120 P.2d 578, 588. 
Lateral support. The right of lateral and subjacent 
support is the right to have land supported by the 
adjoining land or the soil beneath. The right of a 
landowner to the natural support of his land by adjoin
ing land. The ad joining owner has the duty not to 
change his land (such as lowering it) so as to cause this 
support to be weakened or removed. 
Laterare Ilret;)reriy I. To lie sideways, in opposition to 
lying endways; used in descriptions of lands. 
Latifundium Ilret;)f:lndiy;)m/. Lat. In the civil law, 
great or large possessions; a great or large field; a 
common. A great estate made up of smaller ones (fu n
dis), which began to be common in the latter times of 
the empire. 
Latifundus I lret;)f:lnd;)s I . A possessor of a large estate 
made up of smaller ones. 
Latin. The language of the ancient Romans. There are 
three sorts of law Latin: (1) Good Latin, allowed by the 
grammarians and lawyers; (2) false or incongruous Lat
in, which in times past would abate original writs, 
though it would not make void any judicial writ, decla
ration, or plea, etc.; (3) words of art, known only to the 
sages of the law, and not to grammarians, called "Law
yers' Latin ." 
Latinarius Ilret;)neriy;)s/. An interpreter of Latin. 
Latini juniani Ibtaynay juwniyeynay I. Lat. In Roman 
law, a class of freedmen aibertini) intermediate between 
the two other classes of freedmen called, respectively, 
"Cives Romani" and "Dediticii. " 
Latitat IlcH;)d;)t/. In old English practice, a writ which 
issued in personal actions, on the return of non est

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LATITAT 
inventus to a bill of Middlesex; so called from the 
emphatic word in its recital, in which it was "testified 
that the defendant lurks [latitatJ and wanders about" in 
the county. 3 BLComm. 286. Abolished by St. 2, Wm. 
IV, c. 39. 
Latitatio IlcH;}teysh(iy)ow/. Lat. In the civil law and 
old English practice, a lying hid; lurking, or conceal
ment of the person. 
Lator /leyt;}r/. Lat. In the civil law, a bearer; a mes
senger. Also a maker or giver of laws. 
Latro IlcHrow/. Lat. In the civil and old English law, a 
robber; a thief. 
Latrocination Ihetr;}s;}neysh;}n/. The act of robbing; a 
depredation. 
Latrocinium Ilcetr;}siniy;}m/. The prerogative of adjudg
ing and executing thieves; also larceny; theft; a thing 
stolen. 
Latrociny /lretr;}s;}niy I. Larceny. 
Laudare Iloderiy/. Lat. In Civil law, to name; to cite 
or quote; to show one's title or authority. 
In Feudal law, to determine or pass upon judicially. 
Laudamentum, the finding or award of a jury. 2 BL 
Comm. 285. 
Laudatio /lodeysh(iy)ow/. Lat. In Roman law, testimo
ny delivered in court concerning an accused person's 
good behavior and integrity of life. It resembled the 
practice which prevails in our trials of calling persons to 
speak to a prisoner's character. The least number of 
the laudatores among the Romans was ten. 
Laudator Ilodeyt;}r/. Lat. An arbitrator; a witness to 
character. 
Laudemium Ilodiymiy;}m/. Lat. In the civil law, a sum 
paid by a new emphyteuta (q.v.) who acquires the emphy
teusis, not as heir, but as a singular successor, whether 
by gift, devise, exchange, or sale. It was a sum equal to 
the fiftieth part of the purchase money, paid to the 
dominus or proprietor for his acceptance of the new 
emphyteuta. Called, in old English law, "acknowledg
ment money." 
Laudum /l6d;}m/. Lat. An arbitrament or award. 
Laughe. Frank-pledge. 
Launch. The act of launching a vessel; the movement 
of a vessel from the land into the water, especially the 
sliding on ways from the stocks on which it is built. An 
open boat of large size used in any service; a lighter. 
Laundering. Term used to describe investment or other 
transfer of money flowing from racketeering, drug trans
actions, and other illegal sources into legitimate chan
nels so that its original source cannot be traced. Money 
laundering is a federal crime. 18 U.S.C.A. § 1956. 
Laureate 116hriy;}t/. In old English law, an officer of 
the household of the sovereign, whose business formerly 
consisted only in composing an ode annually, on the 
sovereign's birthday, and on the new year; sometimes 
884 
also, though rarely, on occasion of any remarkable victo
ry. 
Laurels 116hr;}lzl. Pieces of gold, coined in 1619, with 
the king's head laureated; hence the name. See Jaco
bus. 
Laus Deo /l6s diyow I. Lat. Praise be to God. An old 
heading to bills of exchange. 
Law. That which is laid down, ordained, or established. 
A rule or method according to which phenomena or 
actions co-exist or follow each other. Law, in its generic 
sense, is a body of rules of action or conduct prescribed 
by controlling authority, and having binding legal force. 
United States Fidelity and Guaranty Co. v. Guenther, 
281 U.S. 34, 50 S.Ct. 165, 74 L.Ed. 683. That which 
must be obeyed and followed by citizens subject to sanc
tions or legal consequences is a law. Law is a solemn 
expression of the will of the supreme power of the State. 
Calif.Civil Code, § 22. 
The "law" of a state is to be found in its statutory and 
constitutional enactments, as interpreted by its courts, 
and, in absence of statute law, in rulings of its courts. 
Dauer's Estate v. Zabel, 9 Mich.App. 176, 156 N.W.2d 34, 
37. 
Word "law" generally contemplates both statutory 
and case law. Matter of Estate of Perlberg, Tenn.App., 
694 S.W.2d 304, 308. 
In old English jurisprudence, "law" is used to signify 
an oath, or the privilege of being sworn; as in the 
phrases "to wage one's law," "to lose one's law." 
The term is also used in opposition to "fact." Thus 
questions of law are to be decided by the court, while it 
is the province of the jury to resolve questions of fact. 
The word may mean or embrace: body of principles, 
standards and rules promulgated by government, State 
ex reI. Conway v. Superior Court within and for Green
lee County, 60 Ariz. 69, 131 P.2d 983, 986; command 
which obliges a person or persons and obliges generally 
to acts or forbearances of a class; constitution or consti
tutional provision. Wickham v. Grand River Dam Au
thority, 189 OkL 540, 11 8 P.2d 640, 643; county ordi
nance, People v. Ziady, 8 CaL2d 149, 64 P.2d 425, 430; 
distinct and complete act of positive law; doctrine or 
procedure of the common law, from which equity is a 
departure; enrolled bill attested by presiding officers of 
two branches of General Assembly, Shannon v. Dean, 
279 Ky. 279, 130 S.W.2d 812, 815; general rule of 
human action, taking cognizance only of external acts, 
enforced by a determinate authority, which authority is 
human, and among human authorities is that which is 
paramount in a political society; grant by Legislature, 
City of Los Angeles v. Pacific Land Corporation, 41 
CaLApp.2d 223, 106 P.2d 242, 244; administrative agen
cy rules and regulations, Columbia Broadcasting System 
v. United States, 316 U.S. 407, 62 S.Ct. 1194, 1200, 86 
L.Ed. 1563; judicial decisions, judgments or decrees, 
West v. American Telephone & Telegraph Co., 311 U.S. 
223, 61 S.Ct. 179, 183, 85 L.Ed. 139; law of the state; 
legislation by initiative method, Opinion of the Justices, 
309 Mass. 676, 35 N.E.2d 676, 680; local rules of deci-

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885 
sion, National Fruit Product Co. v. Dwinell-Wright Co., 
D.C.Mass., 47 F.Supp. 499, 502; long-established local 
custom which has the force of law, Dubois v. Hepburn, 
35 U.S. (10 Pet.) 1, 9 L.Ed. 325; Bush v. Brenner, 
D.C.Minn., 29 F.2d 844, 845; municipal ordinance; pre
scribed rules of action or conduct, U. S. Fidelity & 
Guaranty Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 166, 
74 L.Ed. 683; proclamation of Governor, Williams v. 
State, 146 Tex.Cr.R. 430, 176 S.W.2d 177, 184; resolution 
passed by Legislature and approved by Governor, City of 
Bangor v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205, 
208; revised statutes, W. R. McCullough Life Ins. Co. v. 
Armstrong, Tex.Civ.App., 158 S.W.2d 585, 586; rule of 
civil conduct commanding what is right and prohibiting 
what is wrong, City of Bangor v. Inhabitants of Etna, 
140 Me. 85, 34 A.2d 205, 208; rule of civil conduct 
prescribed by the supreme power in a state, City of 
Bangor v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205, 
208; rule of conduct prescribed by lawmaking power of 
state, Board of Education of Union Free School Dist. No. 
Six of Town of Greenburgh v. Town of Greenburgh, 277 
N.Y. 193, 13 N.E.2d 768, 770; rules of court, State ex rel. 
Conway v. Superior Court within and for Greenlee Coun
ty, 60 Ariz. 69, 131 P.2d 983, 986; rules of decision 
commonly accepted and acted upon by bar and inferior 
courts, West v. American Telephone & Telegraph Co., 
Ohio, 311 U.S. 223, 61 S.Ct. 179, 183, 85 L.Ed. 139; rules 
promulgated by government, State ex rel. Conway v. 
Superior Court within and for Greenlee County, 60 Ariz. 
69, 131 P.2d 983, 986; science or system of principles or 
rules of human conduct, Secretary of the Treasury regu
lations, In re Deyo's Estate, 180 Misc. 32, 42 N.Y.S.2d 
379, 386; statute laws as construed by highest courts of 
state, National City Bank v. National Sec. Co., C.C.A. 
Tenn., 58 F.2d 7, 9; statute or enactment of legislative 
body, State ex rel. McKittrick v. Missouri Public Service 
Commission, 252 Mo. 29, 175 S.W.2d 857, 861; United 
States law, U. S. v. Wagner, C.C.A.Cal., 93 F.2d 77, 79; 
War Department regulations, Standard Oil Co. of Cali
fornia v. Johnson, Cal., 316 U.S. 481, 62 S.Ct. 11 68, 1169, 
86 L.Ed. 1611. 
A concurrent or joint resolution of legislature is not 
"a law", Koenig v. Flynn, 258 N.Y. 292, 179 N.E. 705, 
707; Ward v. State, 176 Okl. 368, 56 P.2d 136, 137; a 
resolution of the house of representatives is not a "law", 
State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162, 
165; an unconstitutional statute is not a "law", Flour
noy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 
So.2d 244, 248. 
With reference to its origin, "law" is derived either 
from judicial precedents, from legislation, or from cus
tom. 
As to the different kinds of law, or law regarded in its 
different aspects, see Absolute law; Adjective law; Admin
istrative law; Arms, law of; Bankrup tcy Code; Can
on (Canon law); Case law; Citations, law of; Civil law; 
Commercial law; Common law; Conclusion of law; Con
flicts of laws; Constitutional law; Criminal law; Custom 
and usage; Ecclesiastical law; Edict; Enabling statute; 
Equity; Evidence, law of; Flag, law of; Foreign laws; 
Forest law; General law; International law; Local law; 
LAWFUL 
Maritime; Maritime law; Marque, law of; Martial law; Mer
cantile law; Military law; Moral law; Muni cipal law; Natural 
law; Oleron, laws of; Ordinance; Organic law; Parliamen
tary law; Penal laws; Positive law; Private law; Probate; 
Procedural law; Prospective law; Public law; Remedial 
laws and statutes; Retrospective law; Revenue law or 
measure; Road (Law of the road); Roman law; Special 
law; Staple (Law of the staple); Statute; Substantive law; 
Unwritten law; War; Wisby, laws of; Written law. 
For "facts" and "law" as distinguishable, see Fact. 
For practice of law, see Practice. 
Law arbitrary. Opposed to immutable, a law not found
ed in the nature of things, but imposed by the mere will 
of the legislature. 
Law court of appeals. An appellate tribunal, formerly 
existing in the state of South Carolina, for hearing 
appeals from the courts of law. 
Law day. See Day. 
Law department. Department having charge of law 
business of government. See Judicial branch. 
Law enforcement officer. Those whose duty it is to 
preserve the peace. Frazier v. Elmore, 180 Tenn. 232, 
173 S.W.2d 563, 565. See also Police officer; Sheriff. 
Law French. The Norman French language, introduced 
into England by William the Conqueror. For several 
centuries, it was, in an emphatic sense, the language of 
the English law. It is called by Blackstone a "barbarous 
dialect," and the later specimens of it fully warrant the 
appellation, but at the time of its introduction it was, as 
has been observed, the best form of the language spoken 
in Normandy. 
Lawful. Legal; warranted or authorized by the law; 
having the qualifications prescribed by law; not con
trary to nor forbidden by the law; not illegal. 
The principal distinction between the terms "lawful" 
and "legal" is that the former contemplates the sub
stance of law, the latter the form of law. To say of an 
act that it is "lawful" implies that it is authorized, 
sanctioned, or at any rate not forbidden, by law. To say 
that it is "legal" implies that it is done or performed in 
accordance with the forms and usages of law, or in a 
technical manner. In this sense "illegal" approaches 
the meaning of "invalid ." For example, a contract or 
will, executed without the required formalities, might be 
said to be invalid or illegal, but could not be described as 
unlawful. Further, the word "lawful" more clearly im
plies an ethical content than does "legal." The latter 
goes no further than to denote compliance, with positive, 
technical, or formal rules; while the former usually 
imports a moral substance or ethical permissibility. A 
further distinction is that the word "legal" is used as the 
synonym of "constructive," which "lawful" is not. Thus 
"legal fraud" is fraud implied or inferred by law, or 
made out by construction. "Lawful fraud" would be a 
contradiction of terms. Again, "legal" is used as the 
antithesis of "equitable." Thus, we speak of "legal 
assets," "legal estate," etc., but not of "lawful assets," or 
"lawful estate." But there are some connections in

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which the two words are used as exact equivalents. 
Thus, a "lawful" writ, warrant, or process is the same as 
a "legal" writ, warrant, or process. 
See also Legal; Legitimate; Valid. 
Lawful age. Full age, legal age, majority; generally 18 
years of age, though the "lawful age" for certain acts 
(e.g. drinking, driving motor vehicle, etc.) may vary from 
state to state. See also Capacity; Legal age. 
Lawful arrest. The taking of a person into legal custody 
either under a valid warrant or on probable cause for 
believing that he has committed a crime or under civil 
process which permits his arrest; e.g. capias for arrest of 
debtor. Term is used in connection with right to search 
a person and his immediate surroundings without a 
warrant as an incident of the arrest. Chimel v. Califor
nia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. See 
Arrest; Probable cause; Search; Search-warrant. 
Lawful authorities. Those persons who have right to 
exercise public power, to require obedience to their 
lawful commands, to command or act in the public 
name; e.g. police. 
Lawful cause. Legitimate reason for acting, based on 
the law or on the evidence in a particular case as 
contrasted with acting on a whim or out of prejudice, or 
for a reason not recognized by the law. See also Cause 
of action. 
Lawful damages. Such damages as the law fixes and 
are ascertainable in a court of law. Carr v. U. S., 
D.C.Ky., 28 F.Supp. 236, 241. See Damages. 
Lawful dependents. Term generally associated with 
allowances or benefits from public (e.g. Social Security 
benefits) or private funds to those who qualify as de
pendents and whose dependency is within the terms of 
the law which govern the distribution. Term is also 
used with respect to tax exemptions for dependents. See 
also Dependent; Legal dependent. 
Lawful discharge. Such a discharge in insolvency as 
exonerates the debtor from his debts; e.g. discharge 
pursuant to bankruptcy proceeding. 
Lawful entry. An entry on real estate, by one out of 
possession, under claim or color of right and without 
force or fraud. An entry of premises pursuant to a 
search warrant. See Ejection; Eviction; Process (Sum
mary process); Search Warrant. 
Lawful goods. Property which may be legally held, 
sold, or exported; non-contraband property. 
Lawful heirs. See Heirs. 
Lawful issue. As used in will the words primarily and 
generally mean descendants, In re Marsh's Will, 143 
Misc. 609, 257 N.Y.S. 514, 521; including descendants 
more remote than children. In re Woodcock's Will, 
Sur., 55 N.Y.S.2d 656, 658. At common law, the term 
includes only those who were children of legally recog
nized subsisting marriage. Lawful descendants; lineal 
descendants by blood; heirs. In re Sheffer's Will, 139 
Misc. 519, 249 N.Y.S. 102, 104. See Descendent; Heirs; 
Issue. 
886 
Lawful man. A freeman, unattainted, and capable of 
bearing oath; a legalis homo. 
Lawful money. Money which is a legal tender in pay
ment of debts. See Legal tender. 
Lawful representatives. Where real property is in
volved as subject-matter, term "lawful representatives" 
includes or means legal heirs. Where personal property 
is involved the term, when not qualified by context, is 
limited to executors and administrators. 
Law latin. The corrupt form of the Latin language 
employed in the old English lawbooks and legal proceed
ings. 
Lawless. Not subject to law; not controlled by law; not 
authorized by law; not observing the rules and forms of 
law. 
Law list. A publication compiling the names and ad
dresses of those engaged in the practice of law and 
information of interest to the legal profession often 
including the courts, court calendars, lawyers engaged 
in specialized fields (as admiralty or patent law), public 
officers, stenographers, handwriting experts, private in
vestigators, or abstracts of law. A legal directory; e.g. 
the "Law Directory", as published by Martindale-Hub
bell. There are law listings or directories for most 
states and also for many of the larger cities. 
Law lords. Peers in the British parliament who have 
held high judicial office, or have been distinguished in 
the legal profession; i.e. a puisne judge of the High 
Court or higher office. 
Law martial. See Martial law. 
Law merchant. Body of law governing commercial 
transactions which had its origin in common law of 
England regulating merchants. See U.C.C. § 1-103. 
See also Commercial law; Mercantile law; Uniform Com
mercial Code. 
Law of a general nature. One which relates to a 
subject that may exist throughout the state; one whose 
subject-matter is common to all the people. Panhandle 
Eastern Pipe Line Co. v. Board of Com'rs of Miami 
County, 151 Kan. 533, 99 P.2d 828, 829. 
Law of arms. See Arms, law of. 
Law of capture. Under "law of capture," landowner 
does not own migratory substances underlying his land, 
but has exclusive right to drill for, produce, or otherwise 
gain possession of such substances, subject only to re
strictions and regulations pursuant to police power. 
Frost v. Ponca City, Okl., 541 P.2d 13 21, 1323. 
Law of citations. See Citations, law of. 
Law of evidence. See Evidence, law of. 
Law of marque. See Marque, law of. 
Law of nations. See International law. 
Law of nature. See Natural law. 
Law of the case. Term "law of the case," as generally 
used, designates the principle that if an appellate court

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has passed on a legal question and remanded the cause 
to the court below for further proceedings, the legal 
question thus determined by the appellate court will not 
be differently determined on a subsequent appeal in the 
same case where the facts remain the same. Allen v. 
Michigan Bell Tel. Co., 61 Mich.App. 62, 232 N.W.2d 
302, 303. Doctrine which provides that an appellate 
court's determination on a legal issue is binding on both 
the trial court on remand and an appellate court on a 
subsequent appeal given the same case and substantially 
the same facts. Hinds v. McNair, Ind.App., 413 N.E.2d 
586, 607. 
Doctrine is that principle under which determination 
of questions of law will generally be held to govern case 
throughout all its subsequent stages where such deter
mination has already been made on a prior appeal to a 
court of last resort. Transport Ins. Co. v. Employers 
Cas. Co., Tex.Civ.App., 470 S.W.2d 757, 762. The doc
trine expresses practice of courts generally to refuse to 
reopen what has been decided. White v. Higgins, C.C.A. 
Mass., 11 6 F.2d 312, 317, 318; Fleming v. Campbell, 148 
Kan. 516, 83 P.2d 708, 709. It expresses the rule that 
final judgment of highest court is final determination of 
parties' rights. 
Doctrine of "law of the case" is one of policy only and 
will be disregarded when compelling circumstances call 
for a redetermination of the determination of point of 
law on prior appeal, and this is particularly true where 
intervening or contemporaneous change in law has oc
curred by overruling former decisions or establishment 
of new precedent by controlling authority. Ryan v. 
Mike-Ron Corp., Cal.App., 63 Cal.Rptr. 601, 605. Doc
trine is merely a rule of procedure and does not go to 
the power of the court, and will not be adhered to where 
its application will result in an unjust decision. People 
v. Medina, CaL, 99 Cal.Rptr. 630, 635, 492 P.2d 686. 
Jury instructions. It has been held that jury instruc
tions are the "law of the case" where appealing defen
dant accepted instructions as correct, lEtna Life Ins. Co. 
v. McAdoo, C.C.A.Ark., 11 5 F.2d 369, 370; where such 
were approved on former appeal and given at second 
trial, Whitehead v. Stith, 279 Ky. 556, 131 S.W.2d 455, 
460; where instructions were not challenged in any 
manner or in any particular, New York Life Ins. Co. v. 
Stone, C.C.A.Mass., 80 F.2d 614, 616; Codd v. New York 
Underwriters Ins. Co., 19 Wash.2d 671, 144 P.2d 234, 
237; where no objections or exceptions taken, Miller v. 
Mohr, 198 Wash. 619, 89 P.2d 807, 814. 
See also Collateral estoppel; Res judic ata. 
Law of the flag. See Flag, law of. 
Law of the land. Due process oflaw (q.v.). Body of law 
consisting of court decisions, statutes, and treaties. See 
U.S. Const., Art. VI, § 2. By the law of the land is most 
clearly intended the general law which hears before it 
condemns, which proceeds upon inquiry, and renders 
judgment only after trial. Dupuy v. Tedora, 204 La. 
560, 15 So.2d 886, 891. The meaning is that every 
citizen shall hold his life, liberty, property, and immuni-
LAW WORTHY 
ties under the protection of general rules which govern 
society. See also Due process of law; Law. 
Law of the road. See Road (Law of the road). 
Law of the staple. See Staple (Law of the staple). 
Law questions. Issues or questions in a case which do 
not require findings of fact but are addressed to the 
judge for application of the law. In those instances 
wherein the law depends on the facts, the factual ques
tions are first decided and then the law is applied to the 
facts as found by the judge or jury. Compare Fact 
question. 
Law reporters or reports. Published volumes contain
ing the decisions and opinions of state and federal 
courts; e.g. National Reporter System. Commonly such 
decisions are first published in advance sheets and 
thereafter in bound reports or reporter volumes. Law 
reports or reporters may be either official (published by 
the state or federal government) or unofficial (published 
by private publisher). See e.g. Federal Reporter. 
Law review. A periodic publication of most law schools 
containing lead articles on topical subjects by law profes
sors, judges or attorneys, and case summaries by law 
review member-students. Normally only honor or top 
law students are members of the law review staff. 
Laws. Rules promulgated by government as a means to 
an ordered society. Strictly speaking, session laws or 
statutes and not decisions of court; though in common 
usage refers to both legislative and court made law, as 
well as to administrative rules, regulations and ordi
nances. See also Law. 
Law School Admissions Test. See LSAT. 
Laws of oleron. See Oleron, laws of. 
Laws of the several states. As used in statute requir
ing federal courts to apply laws of the several states, 
includes not only state statutory law, but also state 
decisions on questions of general law. Erie R. Co. v. 
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 822, 82 L.Ed. 1188. 
See Erie v. Tompkins. 
Laws of war. See War. 
Law Society. In England, the professional organization 
governing the education and practice of articled clerks 
and solicitors. To be admitted to the profession one 
must be enrolled on the Society's Roll. Constituted by 
Royal Charter 1845. See generally the Solicitors Act, 
1974. 
Law spiritual. The ecc1esiasticallaw, or law Christian. 
See also Ecclesiastical law. 
Lawsuit. A vernacular term for a suit, action, or cause 
instituted or depending between two private persons in 
the courts of law. A suit at law or in equity; an action 
or proceeding in a civil court; a process in law instituted 
by one party to compel another to do him justice. Shep
herd v. Standard Motor Co., 263 Ky. 329, 92 S.W.2d 337. 
See also Action; Cause of action. 
Law worthy. Being entitled to, or having the benefit 
and protection of, the law.

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LAWYER 
Lawyer. A person learned in the law; as an attorney, 
counsel, or solicitor; a person licensed to practice law. 
Any person who prosecutes or defends causes in courts 
of record or other judicial tribunals of the United States, 
or of any of the states, or whose business it is to give 
legal advice or assistance in relation to any cause or 
matter whatever. See also Attorney; House counsel. 
For right to attorney, see Counsel, right to. 
Lay, n. A share of the profits of a fishing or whaling 
voyage, allotted to the officers and seamen, in the na
ture of wages. See also Lay system. 
Lay, adj. Relating to persons or things not clerical or 
ecclesiastical; a person not in ecclesiastical orders. Also 
non-professionaL See also Layman. 
Lay, v. To state or allege in pleading. 
Layaway. To hold goods for future sale. An agreement 
by a retail seller with a consumer to retain specified 
consumer goods for sale to the consumer at a specified 
price, in earnest of which sale the consumer has deposit
ed with the retail seller an agreed upon sum of money, 
and any other terms and conditions not contrary to law 
which are mutually agreed upon. 
Lay corporation. See Corporation. 
Lay damages. To state at the conclusion of the com
plaint declaration the amount of damages which the 
plaintiff claims. See Ad damnum. 
Lay days. In the law of shipping, days allowed without 
penalty to charter-parties for loading and unloading the 
cargo. 
Laye /ley/. Fr. Law. 
Lay fee. A fee held by ordinary feudal tenure, as distin
guished from the ecclesiastical tenure of fra nk
almoign, by which an ecclesiastical corporation held of 
the donor. The tenure of fr ankalmoi gn is reserved by 
St. 12, Car. II, which abolished military tenures. 2 
BLComm. 101. 
Lay impropriator. In English ecclesiastical law, a lay 
person holding a spiritual appropriation. 
Laying foundation. In law of evidence, the practice or 
requirement of introducing evidence of things necessary 
to make further evidence relevant, material or compe
tent; e.g. the hypothetical question propounded before 
an expert is permitted to render his opinion. See Fed. 
Evid.R. 104. 
Laying the venue. Stating in the complaint or declara
tion the district or county in which the plaintiff propos
es that the trial of the action shall take place. 
Lay investiture. In Ecclesiastical law, the ceremony of 
putting a bishop in possession of the temporalities of his 
diocese. 
Lay judge. A judge who is not learned in the law, i.e., 
not a lawyer; employed in some of the states as asses
sors or assistants to the presiding judges in the nisi 
prius courts or courts of first instance. Many justices of 
the peace are, or were, not lawyers. 
888 
Layman. One of the people, and not one of the clergy; 
one who is not of a particular profession (i.e. non-law
yer). 
Layoff. A termination of employment at the will of 
employer. Such may be temporary (e.g. caused by sea
sonal or adverse economic conditions) or permanent. 
Lay people. Jurymen. 
Lay system. As applied to fishing vessels, exists where 
the fish caught are sold at auction and from the pro
ceeds is deducted charges for supplies furnished and 
balance distributed to the master and the crew. 
Lay witness. Person called to give testimony who does 
not possess any expertise in the matters about which he 
testifies. Used in contrast to expert witness who may 
render an opinion based on his expert knowledge if 
proper foundation is laid. Generally, such non-expert 
testimony in the form of opinions or inferences is limit
ed to those opinions or inferences which are (a) rational
ly based on the perception of the witness (i.e. first-hand 
knowledge or observation) and (b) helpful to a clear 
understanding of his testimony or the determination of 
a fact at issue. Fed.Evid.R. 701. See Opinion evidence 
or testimony. Compare Expert witness. 
Lazzi. A Saxon term for persons of a servile condition. 
L.C. An abbreviation which may stand either for "Lord 
Chancellor," "Lower Canada," or "Leading Cases." 
LEAA. Law Enforcement Assistance Act. 
Lead counsel. The counsel on either side of a litigated 
action who is charged with the principal management 
and direction of the party's case, as distinguished from 
his juniors or subordinates, is said to "lead in the 
cause," and is termed the "leading counsel" on that side. 
May also refer to chief or primary attorney in class 
action or multi-district litigation. 
Leading a use. In common law, where a deed was 
executed before the levy of a fine of land, for the 
purpose of specifying to whose use the fine should inure, 
it was said to "lead" the use. If executed after the fine, 
it was said to "declare" the use. 2 BLComm. 363. 
Leading case. Among the various cases that are argued 
and determined in the courts, some, from their impor
tant character, have demanded more than usual atten
tion from the judges, and from this circumstance are 
frequently looked upon as having settled or determined 
the law upon all points involved in such cases, and as 
guides for subsequent decisions, and from the impor
tance they thus acquire are familiarly termed "leading 
cases." See e.g. Marbury v. Madison. 
Leading object rule. If the leading object or main 
purpose of a person's promise to answer for the debt of 
another is the promisor's own benefit, such promise 
need not be in writing as required by the statute of 
frauds; sometimes known as the "main purpose" doc
trine. 
Leading question. One which instructs witness how to 
answer or puts into his mouth words to be echoed back,

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889 
People v. Hamilton, Gen.Sess., 30 N.Y.S.2d 155, 158; one 
which suggests to witness answer desired, or a question 
admitting of being answered by a simple "yes" or "no". 
Boone v. State, 223 A.2d 476, 492. 
Leading questions are usually deemed improper on 
the direct examination of a witness except as may be 
necessary to develop the witnesses' testimony. Ordi
narily leading questions are permitted on cross-examina
tion. When a party calls a hostile witness, an adverse 
party, or a witness identified with an adverse party, 
interrogation may be by leading questions. Fed.Evid.R. 
611( c). 
Even on direct examination, leading questions may be 
permitted if the witness is very young, mentally dis
abled, or unfamiliar with the language spoken. And 
may, in certain circumstances, also be permitted to 
facilitate a witness's introduction of subject of inquiry; 
e.g. , police officer may be led as to activities leading up 
to events in dispute in order to save time. 
League. An association or treaty of alliance between 
different nations, states, organizations, sports teams, or 
parties. See also Compact; Treaty. 
A measure of distance, varying in different countries 
(equal to about three statute miles). 
Leakage. The waste or diminution of a liquid caused by 
its leaking from the cask, barrel, or other vessel in 
which it was placed. Also an allowance made to an 
importer of liquids, at the custom-house, in the collec
tion of duties, for his loss sustained by the leaking of the 
liquid from its cask or vessel. 
Leal /l(w)eyal/. L. Fr. Loyal; that which belongs to the 
law. 
Lealte lliy(;})ltiy/. L. Fr. Legality; the condition of a 
legalis homo, or lawful man. 
Lean. To incline in opinion or preference. A court is 
sometimes said to "lean against" a doctrine, construc
tion, or view contended for, whereby it is meant that the 
court regards it with disfavor or repugnance, becaft1;e of 
its inexpedience, injustice, or inconsistency. 
Leap-year. See Bissextile. 
Learn. To gain knowledge or information of; to ascer
tain by inquiry, study, or investigation. 
Learned. Possessing learning; erudite; versed in the 
law; informed. In statutes prescribing the qualifica
tions of judges, "learned in the law" designates one who 
has received a regular legal education, the almost invar
iable evidence of which is the fact of his admission to the 
bar. 
Learning. Legal doctrine. 
Lease. Any agreement which gives rise to relationship 
of landlord and tenant (real property) or lessor and 
lessee (real or personal property). Smith v. Royal Ins. 
Co., C.C.A.Cal., 111 F.2d 667, 671. A contract for exclu
sive possession of lands, tenements or hereditaments for 
life, for term of years, at will, or for any interest less 
than that of lessor, usually for a specified rent or com
pensation. Feeley v. Michigan Ave. Nat. Bank, 1 Dist., 
LEASE 
141 Ill.App.3d 187, 95 Ill.Dec. 542, 545, 490 N.E.2d 15, 
18. Contract wherein one lets to the other a certain 
space, property or building for specified unit of time, 
generally a week, month or year. Spiers v. Lake Shore 
Enterprises, Inc., La.App., 210 So.2d 901, 903. Agree
ment under which owner gives up possession and use of 
his property for valuable consideration and for definite 
term and at end of term owner has absolute right to 
retake, control and use property. Transamerica Leasing 
Corp. v. Bureau of Revenue, App., 80 N.M. 48, 450 P.2d 
934, 937. 
When used with reference to tangible personal proper
ty, word "lease" means a contract by which one owning 
such property grants to another the right to possess, use 
and enjoy it for specified period of time in exchange for 
periodic payment of a stipulated price, referred to as 
rent. Vndercofler v. Whiteway Neon Ad, Inc., 114 Ga. 
App. 644, 152 S.E.2d 616, 618. 
The Federal Consumer Leasing Act provides for cer
tain disclosure requirements in consumer leases. 15 
V.S.C.A. § 1667 et seq. In addition, certain states re
quire that consumer (e.g. residential) leases be written in 
"plain language." See McKinney's (N.Y.) Consol.Laws, 
Gen ObI, § 5-702. See also V.C.C. Article 2A with 
respect to consumer leases. 
The person who conveys is termed the "lessor," and 
the person to whom conveyed, the "lessee;" and when 
the lessor conveys lands or tenements to a lessee, he is 
said to lease, demise, or let them. The word when used 
as verb, means to transfer for term specified therein 
from lessor to lessee property therein demised, also to 
let, to farm out, to rent. 
See also Assignable lease; Community lease; Consumer 
lease; Demise; Finance lease; Graduated lease; Ground 
lease; Min ing lease; Net lease; Operating lease; Percent
age lease; Sale and leaseback; Sandwich lease; Under
lease. For Extension of lease, see Extension. Compare 
License. 
Concurrent lease. One granted for a term which is to 
commence before the expiration or other determination 
of a previous lease of the same premises made to anoth
er person; or, in other words, an assignment of a part of 
the reversion, entitling the lessee to all the rents accru
ing on the previous lease after the date of his lease and 
to appropriate remedies against the holding tenant. 
Graduated lease. Lease that takes into consideration 
future increases in operating expenses. In a graduated 
lease there must be a base year on which an increase is 
judged. With inflation and continuing increases in tax
es, energy costs, and other expenses, this type lease has 
become more popular than the fixed-straight lease. 
Gross lease. Lease in which lessee pays a flat sum for 
rent out of which the lessor is required to pay all 
expenses such as taxes, water, utilities, insurance, etc. 
Index lease. A lease arrangement that provides for 
increases in rent according to increases in the consumer 
price index. See also Graduated lease.

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LEASE 
Lease and release. A species of conveyance much used 
in England, said to have been invented by Serjeant 
Moore, soon after the enactment of the Statute of Uses. 
It is thus contrived: A lease, or rather bargain and sale 
upon some pecuniary consideration for one year, is made 
by the tenant of the freehold to the lessee or bargainee. 
This, without any enrolment, makes the bargainor stand 
seised to the use of the bargainee, and vests in the 
bargainee the use of the term for one year, and then the 
statute immediately annexes the possession. Being thus 
in possession, he is capable of receiving a release of the 
freehold and reversion, which must be made to the 
tenant in possession, and accordingly the next day a 
release is granted to him. The lease and release, when 
used as a conveyance of the fee, have the joint operation 
of a single conveyance. 2 Bl.Comm. 339. By the Law of 
Property Act of 1925 all lands and all interests therein 
now lie in grant only. 
Long term lease. See Ground rent. 
Master lease. A main lease controlling subsequent leas
es or subleases. 
Mineral lease. Lease in which the lessee acquires the 
right to work a mine of oil or gas, etc. The rent is 
commonly based on the amount or value of the mineral 
withdrawn. 
Mining lease. See Mining. 
Month to month lease. Tenancy where no lease is 
involved, rent being paid monthly. Statutes often re
quire one month's notice to landlord of intent to termi
nate such tenancy. 
Net lease. Lease which requires the tenant to pay, in 
addition to rent, the expenses of the leased property, e.g. 
taxes, insurance, maintenance, etc. 
Net-net-net lease. Lease in which the lessee pays all the 
expenses including mortgage interest and amortization 
leaving the lessor with an amount free of all claims. 
Parol lease. A lease of real estate not evidenced by 
writing, but resting in an oral agreement. 
Percentage lease. A percentage lease is one in which the 
amount of rent is based upon a percentage of the gross 
or net profits of the lessee's business, or of his gross 
sales, with a stipulated minimum rent. Such leases are 
mainly used where location of the property is an impor
tant part of its value (e.g. in shopping center). 
Perpetual lease. A lease of lands which may last with
out limitation as to time; a grant of lands in fee with 
the reservation of a rent in fee; a fee-farm. 
Proprietary lease. Lease used in cooperative form of 
ownership in which lessee acquires right to possession. 
Sublease, or underlease. One executed by the lessee to a 
third person, conveying the same estate for a shorter 
term than that for which the lessee holds it. See also 
Sublease. 
Top lease. A lease granted on property already subject 
to an oil and gas lease. Generally, a top lease grants 
890 
rights if and when the existing lease expires. Shown v. 
Getty Oil Co., Tex.App., 645 S.W.2d 555. 
Leaseback. Transaction whereby transferor sells prop
erty and later leases it back. In a sale-leaseback situa
tion, for example, R would sell property to S and subse
quently lease such property from S. Thus, R becomes 
the lessee and S the lessor. 
Leasehold. An estate in real property held by leas
ee/tenant under a lease. The four principal types of 
leasehold estates are the estate for years, periodic tenan
cy, tenancy at will, and tenancy at sufferance. The 
asset representing the right of the lessee to use leased 
property. 
Leasehold improvements. Improvements made by les
see to leased property such as parking lot or driveway. 
The term is used in condemnation proceedings to deter
mine the portion of the award to which the lessee is 
entitled. 
Leasehold interest. The interest of the lessor or the 
lessee under a lease contract. U.C.C. § 2A-103. The 
interest which the lessee has in the value of the lease 
itself in condemnation award determination. The dif
ference between the total remaining rent under the 
lease, and the rent lessee would currently pay for sim
ilar space for the same time period. See also Leasehold 
value; No bonus clause. 
Leasehold mortgage. See Mortgage. 
Leasehold mortgage bond. See Bond. 
Leasehold value. The value of a leasehold interest. 
Usually applies to a long term lease when market rental 
for similar space is higher than rent paid under the 
lease. Some states allow the lessee to claim the lease
hold value against the landlord in eminent domain 
proceedings, unless specifically prohibited by the lease 
itself. Other states, by statute, do not allow for such a 
claim. See also Leasehold interest; No bonus clause. 
Lease with option to purchase. A lease under which 
the lessee has the right to purchase the property. The 
price and terms of the purchase must be set forth for the 
option to be valid. The option may run for the length of 
the lease period. 
Leaute Il(w)eyowtey/. L. Fr. Legality; sufficiency in 
law. 
Leave, v. To give. To allow or cause to remain; to let 
remain, unmoved or undone; to refrain from or neglect 
taking, doing, or changing; to let stay or continue; to let 
be without interference; to suffer to remain subject to 
another's action, control, or the like; to suffer to be 
undisturbed in action. To give or dispose of by will; to 
bequeath or devise. To put, place, deposit, deliver, or 
the like. 
Leave, n. Permission or authorization to do something. 
Willful departure with intent to remain away, and not 
temporary absence with intention of returning. See also 
Desertion.

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891 
Leave and license. A defense to an action in trespass 
setting up the consent of the plaintiff to the trespass 
complained of. 
Leave no issue. Not survived by a child or children or 
their descendants. A spouse of a deceased child is not 
"issue" (q.v .). In re Vigil's Estate, 38 N.M. 383, 34 P.2d 
667, 668. 
Leave of absence. Temporary absence from employ
ment or duty with intention to return during which 
time remuneration and seniority are not normally af
fected. State ex reI. McGaughey v. Grayston, 349 Mo. 
700, 163 S.W.2d 335, 341. See also Furlough; Sick leave. 
Leave of court. Permission obtained from a court to 
take some action which, without such permission, would 
not be allowable; as, to receive an extension of time to 
answer complaint. Fed.R. Civil P. 6. 
Leccator II�keyt�r I. A debauched person. 
Lecherwite, lairwite, or legerwite /lech�rwaytl 
l{�rwayt/lej�rwayt/. At common law, a fine for adultery 
or fornication, anciently paid to the lords of certain 
manors. 
Le congres II� kOIJgres/. A species of proof on charges 
of impotency in France, coitus coram testibus. Abol
ished in 1677. 
Le contrat fait la loi II� kontra fey la lwa/. The 
contract makes the law. 
Ledger Ilej�r/. A book of accounts, often referred to as 
a general ledger, in which a business records transac
tions; there being two parallel columns in each account, 
one for the debit entries, the other for the credits. Into 
this book are posted the items from the books of original 
entry or journals. The principal book of accounts of a 
business establishment in which all the transactions of 
each day are entered under appropriate heads so as to 
show at a glance the debits and credits of each account. 
Foothill Ditch Co. v. Wallace Ranch Water Co., 25 Cal. 
App.2d 555, 78 P.2d 215, 220. See also Journal. 
Ledo lliydow I. The rising water or increase of the sea. 
Leet. In English law, the name of a court of criminal 
jurisdiction, formerly of much importance, but latterly 
fallen into disuse. See Court-Leet. 
Left. To let remain or have remaining at death; to 
transmit, bequeath or give by will. Grimes v. Crouch, 
175 Va. 126, 7 S.E.2d 11 5, 11 7. See also Bequest; De
vise; Leave; Legacy. 
Legabilis /l�geyb�l�s/. In old English law, that which 
may be bequeathed. 
Legacy. A disposition of personalty by will. A bequest. 
In a technical sense and strictly construed, "legacy" is 
a gift or bequest by will of personal property, whereas a 
"devise" is a testamentary disposition of real estate, but 
such distinction will not be permitted to defeat the 
intent of a testator, and such terms may be construed 
interchangeably or applied indifferently to either per
sonalty or real estate if the context of the will shows 
that such was the intention of the testator. Festorazzi 
LEGACY 
v. First Nat. Bank of Mobile, 288 Ala. 645, 264 So.2d 
496, 505. 
See also Ademption; Bequest; Cumula tive legacies; De
vise; Legatee; Vested legacy. 
Absolute legacy. One given without condition and in
tended to vest immediately. 
Accumulative legacy. A second, double, or additional 
legacy; a legacy given in addition to another given by 
the same instrument, or by another instrument. 
Additional legacy. One given to the same legatee in 
addition to (and not in lieu of) another legacy given 
before by the same will or in a codicil thereto. 
Alternate legacy. One by which the testator gives one of 
two or more things without designating which. 
Conditional legacy. One which is liable to take effect or 
to be defeated according to the occurrence or non-occur
rence of some uncertain event. 
Contingent legacy. A legacy given to a person at a 
future uncertain time, that may or may not arrive; as 
"at his age of twenty-one," or "if' or "when he attains 
twenty-one." A legacy made dependent upon some un
certain event. A legacy which has not vested. 
Cumulative legacies. These are legacies so called to 
distinguish them from legacies which are merely re
peated. In the construction of testamentary instru
ments, the question often arises whether, where a testa
tor has twice bequeathed a legacy to the same person, 
the legatee is entitled to both, or only to one of them; in 
other words, whether the second legacy must be con
sidered as a mere repetition of the first, or as cumula
tive, i.e., additional. In determining this question, the 
intention of the testator, if it appears on the face of the 
instrument, prevails. 
Demons trative legacy. A bequest of a certain sum of 
money, with a direction that it shall be paid out of a 
particular fund. It differs from a specific legacy in this 
respect: that, if the fund out of which it is payable fails 
for any cause, it is nevertheless entitled to come on the 
estate as a general legacy. And it differs from a general 
legacy in this: that it does not abate in that class, but in 
the class of specific legacies. Kenaday v. Sinnott, 179 
U.S. 606, 21 S.Ct. 233, 45 L.Ed. 339. A bequest of a 
certain sum of money, stock, or other property, payable 
out of a particular fund of property or security, but it 
can neither amount to a gift of the corpus nor serve the 
purpose of releasing the estate from liability in evellt 
particular fund or property should fail. In re Jeffcott's 
Estate, Fla.App., 186 So.2d 80, 83. A legacy of quantity 
is ordinarily a general legacy; but there are legacies of 
quantity in the nature of specific legacies, as of so much 
money, with reference to a particular fund for payment. 
This kind of legacy is called by the civilians a "demons
trative legacy," and it is so far general and differs so 
much in effect from one properly specific that, if the 
fund be called in or fail, the legatee will not be deprived 
of his legacy, but be permitted to receive it out of the 
general assets; yet the legacy is so far specific that it

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LEGACY 
will not be liable to abate with general legacies upon a 
deficiency of assets. 
General legacy. A pecuniary legacy which is payable 
out of general assets of estate of testator, being bequest 
of money or other thing in quantity and not separated 
or distinguished from others of the same kind. Sham
berger v. Dessel, 240 Md. 650, 215 A.2d 177, 179, 15 
A.L.R.3d 1029. One so given as not to amount to a 
bequest of a particular thing or particular money of the 
testator, distinguished from others of the same kind; 
one of quantity merely, not specific. Compare Specific 
legacy, below. 
Indef inite legacy. One which passes property by a gen
eral or collective term, without enumeration of number 
or quantity; as, a bequest of "all" the testator's "goods," 
or his "bank stock." 
Lapsed legacy. Where the legatee dies before the testa
tor, or before the legacy is payable, the bequest is said to 
lapse. Such legacy then falls into residue unless there is 
an anti-lapse statute in which case the legacy passes to 
the issue of the legatee. See Lapse statutes. 
Modal legacy. A bequest accompanied by directions as 
to the mode or manner in which it shall be applied for 
the legatee's benefit, e.g., a legacy to A. to buy him a 
house. 
Pecuniary legacy. A bequest of a sum of money, or of an 
annuity. It may or may not specify the fund from 
which it is to be drawn. It is none the less a pecuniary 
legacy if it comprises the specific pieces of money in a 
designated receptacle, as a purse or chest. 
Residuary legacy. A bequest of all the testator's person
al estate not otherwise effectually disposed of by his will. 
A bequest of "all the rest, residue, and remainder" of 
the personal property after payment of debts and satis
faction of the particular legacies. Legacy containing 
assets after other legacies and estate debts and costs of 
administration have been paid. Alston v. U. S., C.A.Ga., 
349 F.2d 87, 89. 
Special legacy. A "specific legacy" (q.v.) is sometimes so 
called. 
Specific legacy. One which operates on property partic
ularly designated. A legacy or gift by will of a particu
lar specified thing, as of a horse, a piece of furniture, a 
term of years, and the like. In a strict sense, a legacy of 
a particular chattel, which is specified and distinguished 
from all other chattels of the testator of the same kind; 
as of a horse of a certain color. A legacy of a quantity of 
chattels described collectively; as a gift of all the testa
tor's pictures. A legacy is specific, when it is limited to 
a particular thing, subject, or chose in action, so identi
fied as to render the bequest inapplicable to any other; 
as the bequest of a horse, a picture, or jewel, or a debt 
due from a person named, and, in special cases, even of 
a sum of money. Compare General legacy, above. 
Trust legacy. A bequest of personal property to trustees 
to be held upon trust; as, to pay the annual income to a 
beneficiary for life. 
892 
Universal legacy. In the civil law, a testamentary dispo
sition by which the testator gives to one or several 
persons the whole of the property which he leaves at his 
decease. 
Void legacy. Term formerly used to describe legacy 
given to one who died before execution of will. Now, 
such legacy is considered a lapsed legacy and is treated 
as such. See Legacy (Lapsed legacy). 
Legacy duty. A duty formerly imposed in England 
upon personal property (other than leaseholds) devolv
ing under any will or intestacy. 
Legacy or succession tax. An excise on privilege of 
taking property by will or inheritance or by succession 
on death of owner. In re Rosing's Estate, 337 Mo. 544, 
85 S.W.2d 495, 496; State Tax Commission v. Backman, 
88 Utah 424, 55 P.2d 171, 174. See also Inh eritance tax. 
Legal. 1. Conforming to the law; according to law; 
required or permitted by law; not forbidden or dis
countenanced by law; good and effectual in law; of or 
pertaining to the law; lawful. Freeman v. Fowler Pack
ing Co., 135 Kan. 378, 11 P.2d 276, 277. See Lawful; 
Valid. 
2. Proper or sufficient to be recognized by the law; 
cognizable in the courts; competent or adequate to ful
fill the requirements of the law. 
3. Cognizable in courts of law, as distinguished from 
courts of equity; construed or governed by the rules and 
principles of law, in contradistinction to rules of equity. 
With the merger in most states of law and equity courts, 
this distinction generally no longer exists. Fed.R.C ivil 
Proc. 2. 
4. Posited by the courts as the inference or imputa
tion of the law, as a matter of construction, rather than 
established by actual proof; e.g., legal malice. 
5. Created by law. 
As to legal Consideration; Damages; Day; Debt; De
fense; Demand; Disability; Discretion; Estate; Incapacity; 
Irregularity; Memory; Mortgage; Process; Relevancy; 
Remedy; Reversion, and Tender, see those titles. 
Legal acumen /liyg::ll ::Ikyuwm::ln/. The doctrine of legal 
acumen is that if a defect in, or invalidity of, a claim to 
land is such as to require legal acumen to discover it, 
whether it appears upon the face of the record or pro
ceedings, or is to be proved aliunde, then the powers or 
jurisdiction of a court of equity may be invoked to 
remove the cloud created by such defect or invalidity. 
Legal age. The age at which the person acquires full 
capacity to make his own contracts and deeds and trans
act business generally (age of majority) or to enter into 
some particular contract or relation, as the " legal age of 
consent" to marriage. The age at which a person may 
enter into binding contracts or commit other legal acts. 
In most states a minor reaches legal age or ma jority (i.e., 
becomes of age) at age 18; though for certain acts (e.g. 
drinking) it may be higher, and for others (e.g. driving) it 
may be lower. See also Capacity; Majority.

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Legal aid. Country-wide system administered locally by 
which legal services are rendered to those in financial 
need and who cannot afford private counsel. See Coun
sel, right to; Indigent; Legal Services Corporation; Public 
defender. 
Legal assets. That portion of the assets of a deceased 
party which by law is directly liable, in the hands of his 
executor or administrator, to the payment of debts and 
legacies. Such assets as can be reached in the hands of 
an executor or administrator, by a suit at law against 
him. 
Legal brief. Document containing brief statement of 
facts of case, issues and arguments; used most common
ly on appeal, but also used at trial level (trial brief) 
when requested by trial judge. Content of appellate 
briefs is usually governed by court rules; e.g. Fed.R. 
App.P. 28-- 32. See also Brief. 
Legal capacity to sue. Right to come into court. 
American Home Benefit Ass'n v. United American Ben
efit Ass'n, 63 Idaho 754, 125 P.2d 1010, 1016. It is not 
necessary in pleadings to aver the capacity of a party to 
sue or be sued, except to the extent required to show the 
jurisdiction of the court. A party desiring to raise the 
issue of lack of capacity shall do so by specific negative 
averment. Fed.R. Civil P. 9(a). See also Capacity; Stand
ing to sue doctrine. 
Legal capital. Par or stated value of issued capital 
stock. The amount of contributed capital that, accord
ing to state law, must remain permanently in the firm 
as protection for creditors. Property sufficient to bal
ance capital stock liability. Crocker v. Waltham Watch 
Co., 315 Mass. 397, 53 N.E.2d 230, 238. 
Legal cause. Proximate cause (q.v.). Substantial factor 
in bringing about harm. Krauss v. Greenbarg, C.C.A. 
Pa., 137 F.2d 569, 572; Giles v. Moundridge Milling Co., 
351 Mo. 568, 173 S.W.2d 745, 750. In conflicts, denotes 
fact that the manner in which the actor's tortious con
duct has resulted in another's injury is such that the 
law holds the actor responsible unless there is some 
defense to liability. Restatement, Second, Conflicts, 
§ 160, Comment a. 
The words "legal cause" are used throughout the 
Restatement of Torts to denote the fact that the causal 
sequence by which the actor's tortious conduct has re
sulted in an invasion of some legally protected interest 
of another is such that the law holds the actor respon
sible for such harm unless there is some defense to 
liability. Restatement, Second, Torts, § 9. 
See also Cause; Cause of action. 
Legal conclusion. A statement of legal duty without 
stating fact from which duty arises. Burton-Lingo Co. v. 
Morton, Tex.Civ.App ., 126 S.W.2d 727, 733. A particu
lar statement which would be considered a statement of 
fact in everyday conversation might, nevertheless, be 
considered a "legal conclusion" when used in connection 
with a legal proceeding if the truth of the fact stated is 
one of the ultimate issues to be determined in such 
proceeding. Cortner v. National Cash Register Co., 25 
LEGAL ENTITY 
Ohio Misc. 156, 262 N.E.2d 586, 588. See also Decision; 
Judgment. 
Legal cruelty. Such as will warrant the granting of a 
divorce to the injured party, as distinguished from such 
kinds or degrees of cruelty as do not. Such conduct on 
the part of a spouse as will endanger the life, person, or 
health (bodily or mental) of his or her spouse, or create a 
reasonable apprehension of bodily or mental hurt; such 
acts as render cohabitation unsafe, or are likely to be 
attended with injury to the person or to the health of 
the spouse. See also Cruelty; Mental cruelty. 
Legal custody. Restraint of or responsibility for a per
son according to law, such as a guardian's authority over 
the person or property, or both, of his ward. See also 
Commitment; Custody; Guardian; Ward. 
Legal death. See Brain death; Civil death. 
Legal dependent. Dependent according to law. The 
term imports right to invoke aid of law to require 
support. See Dependent; Lawful dependents; Support; 
Ward. 
Legal description. A description of real property by 
government survey, metes and bounds, or lot numbers of 
a recorded plat including a description of any portion 
thereof subject to an easement or reservation, if any. 
Such must be complete enough that a particular parcel 
of land can be located and identified. See Land bound
aries; Metes and bounds. 
Legal detriment. Legal detriment to promisee means 
that promisee changed his legal position, or assumed 
duties or liabilities not theretofore imposed on him on 
reliance of actions of promisor. State ex reI. Kansas 
City v. State Highway Commission, 349 Mo. 865, 163 
S.W.2d 948, 953. Term refers to giving up something 
which immediately prior thereto the promisee was privi
leged to retain, or doing or refraining from doing some
thing which he was then privileged not to do, or not to 
refrain from doing. See also Consideration; Detriment. 
Legal discretion. See Discretion. 
Legal distributees. As used in will, term is construed to 
mean persons who would be entitled to take under the 
law. 
Legal duty. An obligation arising from contract of the 
parties or the operation of the law; e.g. legal duty of 
parents to support children. Ferrell v. Hass, 136 Ga. 
App. 274, 220 S.E.2d 771, 773. That which the law 
requires to be done or forborne to a determinate person 
or the public at large, correlative to a vested and coex
tensive right in such person or the public, and the 
breach of which constitutes negligence. An obligation 
recognized by law which requires an actor to conform to 
a certain standard of conduct for the protection of others 
against unreasonable risk. Swartz v. Huffmaster 
Alarms Systems, Inc., 145 Mich.App. 431, 377 N.W.2d 
393, 395. See also Legal obligation; Support. 
Legal entity. Legal existence. An entity, other than a 
natural person, who has sufficient existence in legal 
contemplation that it can function legally, be sued or

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LEGAL ENTITY 
sue and make decisions through agents as in the case of 
corporations. 
Legal estoppel. Estoppel by deed or record, as distin
guished from estoppel by matter in pais. It excludes 
evidence of the truth and the equity of the particular 
case to support a strict rule of law on grounds of public 
policy. See also Estoppel. 
Legal ethics. Usages and customs among members of 
the legal profession, involving their moral and profes
sional duties toward one another, toward clients, and 
toward the courts. That branch of moral science which 
treats of the duties which a member of the legal profes
sion owes to the public, to the court, to his professional 
brethren, and to his client. Most states have adopted 
the Model Rules of Professional Conduct of the Ameri
can Bar Association. See also Canon. 
Legal evidence. A broad general term meaning all 
admissible evidence, including both oral and documenta
ry, but with a further implication that it must be of such 
a character as tends reasonably and substantially to 
prove the point, not to raise a mere suspicion or conjec
ture. See also Admissible; Evidence; Relevant evidence. 
Legal excuse. Doctrine by which one seeks to avoid the 
consequences of his own conduct by showing justification 
for acts which would otherwise be considered negligent 
or criminal; e.g. killing of another in self defense. 
Gibbs v. Wilmeth, 261 Iowa 1015, 157 N.W.2d 93, 96. 
See also Excusable; Justification; Legal impossibility; Self
defense. 
Legal fiction. Assumption of fact made by court as 
basis for deciding a legal question. A situation con
trived by the law to permit a court to dispose of a 
matter, though it need not be created improperly; e.g. 
fiction of lost grant as basis for title by adverse posses
sion. 
Legal fraud. Contracts or acts as, though not originat
ing in actual evil design to perpetrate fraud, yet by their 
tendency to mislead others or· to violate confidence, are 
prohibited by law. Ruedy v. Toledo Factories Co., 61 
Ohio App. 21, 22 N.E.2d 293, 297, 15 0.0. 56. Breach of 
some legal or equitable duty which, irrespective of moral 
guilt, the law declares fraudulent because of its tenden
cy to deceive others, to violate confidence, or to injure 
public interests. Capitol Rod & Gun Club v. Lower 
Colorado River Authority, Tex.App., 622 S.W.2d 887, 
892. Misrepresentation of a material fact made wilfully 
to deceive, or recklessly without knowledge, and acted 
on by the opposite party to his damages constitutes 
"legal fraud." Coffey v. Wininger, 156 Ind.App. 233, 296 
N.E.2d 154, 160. 
Synonymous with "constructive fraud". Purcell v. 
Robertson, 122 W.Va. 287, 8 S.E.2d 881, 883; Tom Reed 
Gold Mines Co. v. United Eastern Mining Co., 39 Ariz. 
533, 8 P.2d 449, 451. For definition of Constructive 
fra ud, see Fraud. 
Legal heirs. As used in will, term means decedent's 
next of kin. In re Farkouh's Will, 134 Misc. 285, 235 
N.Y.S. 165, 167. Persons entitled under laws of descent 
894 
and distribution. Person to whom law would give dece
dent's property if decedent died intestate. In re Wagar's 
Estate, 302 Mich. 243, 4 N.W.2d 535, 536. "Heirs at 
law," "lawful heirs," "legal heirs," and similar expres
sions are synonymous. Corwin v. Rheims, 390 Ill. 205, 
61 N.E.2d 40, 48; In re Fahnestock's Estate, 384 Ill. 26, 
50 N.E.2d 733, 736. See also Heirs; Legal issue. 
Legal holiday. A day designated by law as exempt from 
judicial proceedings, service of process, demand and pro
test of commercial paper, etc. A day designated by 
legislative enactment for purpose within meaning of 
term "holiday." Vidal v. Backs, 218 Cal. 99, 21 P.2d 
952. Fed.R.C ivil P. 6(a), 77(c). 
The legal or practical effect of a day being a "legal 
holiday" varies from state to state. A "holiday" may in 
some states be a day on which service of process is 
invalid, on which all or only some businesses are closed, 
on which state offices may or may not be closed. The 
statutes should be consulted in individual cases, as well 
as local custom, to determine if a "holiday" affects some 
particular contemplated action. See also Holiday. 
Legal impossibility. As defense to criminal charge, 
occurs when the actions which the defendant performs 
or sets in motion, even if fully carried out as he desires, 
would not constitute a crime, whereas "factual impossi
bility" occurs when the objective of the defendant is 
proscribed by the criminal law but a circumstance un
known to the actor prevents him from bringing about 
that objective. U.S. v. Oviedo, C.A.Tex., 525 F.2d 88 1, 
883. Defense of "legal impossibility" may be established 
only where a defendant's actions, if fully performed, 
would not constitute a crime, while "factual impossibili
ty" can serve as a defense only where circumstances 
unknown to the actor prevent his commission of an 
offense. U. S. v. Johnston, C.A.Ark., 543 F.2d 55, 58. 
See also Impossibility. 
Legal injury. Violation or invasion of legal right. 
American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 
106 S.W.2d 763, 765. See Injury. 
Legal insanity. See Insanity. 
Legal interest. A rate of interest fixed by statute as 
either the maximum rate of interest permitted to be 
charged by law, or a rate of interest to be applied when 
the parties to a contract intend an interest rate to be 
paid but do not fix the rate in the contract. Even in the 
latter case, frequently this rate is the same as the 
statutory maximum rate permitted. Term may also be 
used to distinguish interest in property or in claim 
cognizable at law in contrast to equitable interest. See 
also Legal owner; Usury. 
Legal investments. Those investments sometimes 
called "legal lists" in which banks and other financial 
institutions may invest. State statutes often provide 
that trust funds be invested only in high grade, "legal 
list," securities. See also Legal list; Prudent Man Rule. 
Legalis homo /bgeybs h6wmow /. Lat. A lawful man; 
a person who stands rectus in curia; a person not 
outlawed, excommunicated, or infamous. It occurs in

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the phrase, "probi et legales homines " (good and lawful 
men, ' competent jurors), and "legality" designates the 
condition of such a man. 
Legalis moneta anglire Ibgeyl�s m�niyt� reIJgliyiy/. 
Lawful money of England. 
Legal issue. When used in will and unexplained by 
context, means descendants. In proper context, may 
refer to legal question which is at the foundation of a 
case and which requires decision by court. See Issue; 
Legal heirs. 
Legality, or legalness. Lawfulness. 
Legalization. The act of legalizing or making legal or 
lawfuL 
Legalize. To make legal or lawfuL Wight v. New 
Jersey Racing Commission, 128 N.J.L. 517, 26 A.2d 709, 
71 2. To confirm or validate what was before void or 
unlawfuL To add the sanction and authority of law to 
that which before was without or against law. See also 
Legitimate, v. 
Legalized nuisance. A structure, erection, or other 
thing which would constitute a nuisance at common law, 
but which cannot be objected to by private persons 
because constructed or maintained under direct and 
sufficient legislative authority. Such, for example, are 
hospitals or recreational areas maintained by cities. 
Legal jeopardy. A person is in "legal jeopardy" when 
he is put upon trial before a court of competent jurisdic
tion upon an indictment or information which is suffi
cient in form and substance to sustain a conviction, and 
a jury has been "charged with his deliverance," and a 
jury is thus charged when they have been impaneled 
and sworn. State v. Whitman, 93 Utah 557, 74 P.2d 
696, 697. See also Jeopardy. 
Legal liability. A liability which courts recognize and 
enforce as between parties litigant. See also Legally 
liable; Liability; Strict liability. 
Legal life estate. Interest in real or personal property 
for the life of the holder and enforceable at law in 
contrast to equitable life estate. 
Legal list. A list of investments selected by various 
states in which certain institutions and fiduciaries, such 
as insurance companies and banks, may invest. Legal 
lists are often restricted to high quality securities meet
ing certain specifications. See also Legal investments; 
Prudent Man Rule. 
Legally. Lawfully; according to law. 
Legally adopted. Adopted in accordance with laws of 
state. 
Legally committed. Refers to accused who has been 
committed by magistrate who has jurisdiction to hold 
examination and who has actually heard evidence and 
determined probable cause exists for holding defendant. 
People v. Dal Porto, 17 CaLApp.2d 755, 63 P.2d 11 99, 
1200. See also Commitment. 
Legally competent. Words "legally competent" in stat
ute prescribing qualifications of executor mean fit or 
LEGAL MALICE 
qualified to act according to judicial standards essential 
to proper course of justice. In re Haeffele's Estate, 145 
Neb. 809, 18 N.W.2d 228, 23 1. See also Capacity. 
Legally constituted court. One known to and recog
nized by law. See Constitutional court. 
Legally contributing cause of injury. Substantial 
factor in bringing about injury. Farmer v. Central Mut. 
Ins. Co. of Chicago, Ill., 145 Kan. 951, 67 P.2d 511, 514. 
See also Cause; Proximate cause. 
Legally determined. Determined by process of law. 
Black Diamond S. S. Corporation v. Fidelity & Deposit 
Co. of Maryland, D.C.Md., 33 F.2d 767, 769. 
Legally liable. Liable under law as interpreted by 
courts. Beck v. Kansas City Public Service Co., Mo. 
App., 48 S.W.2d 213, 215. Liability imposed by law or 
liability which law fixes by contract. Home Ins. Co. of 
New York v. Moore & Rawls, 151 Miss. 189, 117 So. 524, 
526. See Liability; Strict liability. 
Legally operating automobile. As used in liability 
policy, means operating automobile by right or by lawful 
authority. Universal Automobile Ins. Co. v. Benoit, 
C.C.A.Ariz., 67 F.2d 52, 53; Zurich General Accident & 
Liability Ins. Co. v. Thompson, C.C.A.CaL, 49 F.2d 860, 
861. 
Legally reside. Domicile. Mitchell v. Kinney, 242 Ala. 
196, 5 So.2d 788, 793. See Domicile; Legal residence; 
Residence. 
Legally sufficient consideration. Consideration which 
the law recognizes as legally adequate to support a valid 
contract. See Consideration. 
Legally sufficient evidence. Competent, pertinent 'evi
dence coming from a legal source. Evidence is "legally 
sufficient to sustain finding", if supported by substantial 
evidence, and record as whole does not clearly, convinc
ingly, or even, possibly, indisputably require contrary 
conclusion. Tracey v. Commissioner of Internal Reve
nue, C.C.A.6, 53 F.2d 575, 579. See Evidence; Relevant 
evidence. 
Legally sufficient tender. A tender made under cir
cumstances that fulfill obligations assumed by vendors. 
Kolling v. Martin, 109 Ind.App. 184, 33 N.E.2d 808, 815. 
See Legal tender. 
Legally using automobile. See Legally operating auto
mobile, supra. 
Legal malice. Such consists of either an express intent 
to kill or inflict great bodily harm, or of a wickedness of 
disposition, hardness of heart, cruelty, recklessness of 
consequences and a mind regardless of social duty which 
indicates an unjustified disregard for the likelihood of 
death or great bodily harm and an extreme indifference 
to the value of human life. Cmwlth. v. Coleman, 455 
Pa. 508, 318 A.2d 716, 717. 
An expression used as the equivalent of "constructive 
malice," or "malice in law." Inference of malice which 
. can be reasonably drawn from wrongful act. Chrisman 
v. Terminal R. Ass'n of St. Louis, 237 Mo.App. 181, 157 
S.W.2d 230, 235. Intentional doing of a wrongful act

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LEGAL MALICE 
without just cause. For purposes of determining puni
tive damages, standard for "legal malice" is that there 
be wrongful act intentionally committed and without 
just cause or excuse. Labrier v. Anheuser Ford, Inc., 
Mo., 621 S.W.2d 51, 58. See also Malice. 
Legal malpractice. See Malpractice. 
Legal monopoly. See Monopoly. 
Legal name. Under common law consists of one Chris
tian name and one surname, and the insertion, omis
sion, or mistake in middle name or initial is immaterial. 
The "legal name" of an individual consists of a given or 
baptismal name, usually assumed at birth, and a sur
name deriving from the common name of the parents. 
Application of Green, 54 Misc.2d 606, 283 N.Y.S.2d 242, 
245. 
Legal negligence. Negligence per se; the omission of 
such care as ordinarily prudent persons exercise and 
deem adequate to the circumstances of the case. In 
cases where the common experience of mankind and the 
common judgment of prudent persons have recognized 
that to do or omit certain acts is productive of danger, 
the doing or omission of them is "legal negligence." 
Failure to perform duty law imposes on one person for 
benefit of another. See also Strict liability. 
Legal newspaper. Newspapers published nationally 
and in major cities containing summaries of important 
court decisions, recently enacted or pending legislation 
or regulatory changes, and, locally, notices of bankrupt
cy, probate, foreclosure, divorce, etc. proceedings, and 
also news of general interest to the legal profession. 
Legal notice. Such notice as is adequate in point of law; 
notice as the law requires to be given for the specific 
purpose or in the particular case. Such legal notice is 
typically required to be published a specified number of 
times in a legal and/or general circulation newspaper; 
may also be required to be posted in designated area in 
court house. See also Notice. 
Legal obligation. A legal obligation against state is an 
obligation which would form basis of judgment against 
state in court of competent jurisdiction should Legisla
ture permit state to be sued. Fort Worth Cavalry Club, 
Inc. v. Sheppard, 125 Tex. 339, 83 S.W.2d 660, 663. In 
its broadest sense, any duty imposed by law; e.g. duty of 
parent to support children. See also Legal duty; Sup
port. 
Legal owner. The term has come to be used in techni
cal contrast to the equitable owner, and not as opposed 
to an illegal owner. The legal owner has title to the 
property, although the title may actually carry no rights 
to the property other than a lien. 
Legal opinion. A document in which an official such as 
a state attorney general, a city solicitor or a private 
attorney, renders his or her understanding of the law as 
applied to the assumed facts. It may or may not serve 
as protection to one acting on it, depending on the 
nature of it and the law governing such opinions. It 
may concern the state of a real estate title on which a 
buyer or lender may act. 
896 
Legal personal representative. Generally, when ap
plied by testator to personalty, signifies "executors and 
administrators" and when applied to realty those upon 
whom law casts real estate immediately upon death of 
ancestor. Hogate v. Hogate, 132 N.J.Eq. 480, 28 A.2d 
769, 771. As respects delivery of deposit on behalf of 
deceased seaman, means the public administrator, or 
executor or administrator appointed in state where sea
man resided. See Legal representative. 
Legal possessor. One who, but for the reservation of 
strict legal title in conditional vendor, or the giving of a 
strict legal title in a conditional vendor, or the giving of 
a strict legal title to a chattel mortgagee, would have the 
status of a full and unqualified owner. One who has the 
legal right to possession of property as contrasted with 
the owner of such property who has legal title. See 
Legal owner. 
Legal pre judice. Legal prejudice which will defeat 
plaintiffs motion to dismiss is such as deprives defen
dant of substantive rights of property, or concerns his 
defense, which will not be available or may be endan
gered in a second suit. General Motors Acceptance 
Corporation v. Baker, 161 Misc. 238, 291 N.Y.S. 1015. 
Legal presumption. For presumption of law, see Pre
sumption. 
Legal privity. "Legal privity", within rule that defense 
of usury is personal to debtor and those in legal privity 
with him, means those upon whom title or interest is 
cast by law. An agent and his principal are in legal 
privity to each other. See also Privity. 
Legal proceedings. Term includes all proceedings au
thorized or sanctioned by law, and brought or instituted 
in a court or legal tribunal, for the acquiring of a right 
or the enforcement of a remedy. 
Legal rate of interest. See Legal interest; Usury. 
Legal representative. The term in its broadest sense, 
means one who stands in place of, and represents the 
interests of, another. A person who oversees the legal 
affairs of another. Examples include the executor or 
administrator of an estate and a court appointed guardi
an of a minor or incompetent person. 
Term "legal representative," which is almost always 
held to be synonymous with term "personal representa
tive," means, in accident cases, member of family enti
tled to benefits under wrongful death statute. Unsat
isfied Claim and Judgment Fund v. Hamilton, 256 Md. 
56, 259 A.2d 303, 306. 
Legal rescission. Rescission by act of parties. Aron v. 
Mid-Continent Co., 141 Neb. 806, 4 N.W.2d 884, 886. 
See also Rescind; Recission of contract; Void; Voidable. 
Legal reserve. Liquid assets which life insurance com
panies are required by statute to set aside and maintain 
to assure payment of claims and benefits. Lubin v. 
Equitable Life Assur. Soc. of U. S., 326 Ill.App. 358, 61 
N.E.2d 753, 754; Old Surety Life Ins. Co. of Alva, Okl., 
v. Morrow, 195 Okl. 442, 158 P.2d 715, 717. In banking, 
that amount of percentage of bank deposits which must

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897 
by law be maintained in cash or equally liquid assets to 
meet the demands of depositors. 
Legal residence. The place of domicile or permanent 
abode, as distinguished from temporary residence. Per
manent fixed place of abode which person intends to be 
his residence and to which he intends to return despite 
temporary residences elsewhere or despite temporary 
absences. U. S. v. Calhoun, C.A.Fla., 566 F.2d 969, 973. 
Place recognized by law as residence of person. See also 
Domicile; Residence. 
Legal right. Natural rights, rights existing as result of 
contract, and rights created or recognized by law. Fine 
v. Pratt, Tex.Civ.App., 150 S.W.2d 308, 31l. 
Legal secretary. An employee of an attorney or law 
office whose responsibilities include the typing of legal 
documents, memoranda and correspondence, the keep
ing of records and files, giving and receiving notices, and 
such other duties as required by her or his employer in 
the practice of law. 
Legal separation. A court order arranging the terms 
(custody, support, etc.) under which a married couple 
will live separately. See also Divorce (divorce a mensa et 
thoro); Separate maintenance; Separation of spouses. 
Legal Services Corporation. The Legal Services Corpo
ration was established by the Legal Services Corporation 
Act of 1974 (42 U.S.C.A. § 2996) to provide financial 
support for legal assistance in noncriminal proceedings 
to persons financially unable to afford legal services. 
The Corporation provides financial assistance to quali
fied programs furnishing legal assistance to eligible 
clients and makes grants to and contracts with individu
als, firms, corporations, organizations, and State and 
local governments for the purpose of providing legal 
assistance to these clients. 
Legal subdivisions. Divisions of land which result from 
application of ordinary methods used in making of a 
government survey. 
Legal subrogation. A right arising by operation of law. 
Federal Land Bank of Baltimore v. Joynes, 179 Va. 394, 
18 S.E.2d 917, 920. Where one having liability, right, or 
fiduciary relation pays another's debt under circum
stances equitably entitling former to rights, remedies or 
securities held by creditor. Where person pays in per
formance of legal duty imposed by contract, statute, or 
rule of law or where payment is favored by public policy. 
Where person secondarily liable pays debt and becomes 
subrogated to creditor's rights. Where person who pays 
stands in situation of a surety or is compelled to pay to 
protect his own right or property. Martin v. Hicken
looper, 90 Utah 150, 59 P.2d 11 39, 11 41; Lervold v. 
Republic Mut. Fire Ins. Co., 142 Kan. 43, 45 P.2d 839, 
842. See Subrogation. 
Legal tender. All coins and currencies of the United 
States (including Federal Reserve notes and circulating 
notes of Federal Reserve banks and national banking 
associations), regardless of when coined or issued, are 
legal tender for all debts, public and private, public 
charges, taxes, duties, and dues. 31 U.S.C.A. § 392. 
Black's Law Dictionary 6th Ed.-20 
LEGATEE 
Seller of goods may demand payment by legal tender 
but he is required to give an extension of time reason
ably necessary to procure it. U.C.C. § 2- 51 1(2). 
Legal tender cases. Two cases upholding the constitu
tionality of the Acts of Congress in 1862 and 1863 
calling for the issuance of paper money. Knox v. Lee, 
79 U.S. (12 Wall.) 457, 20 L.Ed. 287, Juilliard v. Green
man, 11 0 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204. 
Legal title. One cognizable or enforceable in a court of 
law, or one which is complete and perfect so far as 
regards the apparent right of ownership and possession, 
but which carries no beneficial interest in the property, 
another person being equitably entitled thereto; in ei
ther case, the antithesis of "equitable title." It may also 
mean appearance of title as distinguished from complete 
title, Southern Carbon Co. v. State, 171 Misc. 566, 13 
N.Y.S.2d 7, 9; full and absolute title or apparent right of 
ownership with beneficial or equitable title in another; 
not necessarily record title. Barnes v. Boyd, D.C.W.Va., 
8 F.Supp. 584, 597. A tax title, which is prima facie 
valid, is a "legal title". Murray v. Holland, 108 Ind. 
App. 236, 27 N.E.2d 126, 128. See Title. 
Legal usufruct /liyg;}l yuwz;}fr�kt/. Usufructs estab
lished by operation of law are legal usufructs, Hartford 
Accident & Indemnity Co. v. Abdalla, 203 La. 999, 14 
So.2d 815; e.g. , the usufruct collated for surviving 
spouse in necessitous circumstances. See also Usufruct. 
Legal voter. A person meeting constitutional require
ments and who is registered. A person invested by law 
with right to vote. Wright v. Lee, 125 N.J.L. 256, 15 
A.2d 610, 611. A person qualified by U.S. Constitution 
and laws of state to vote. Lefler v. City of Dallas, 
Tex.Civ.App., 177 S.W.2d 231, 235. 
Legal willfulness. Intentional disregard of known duty 
necessary to safety of person or property of another and 
entire absence of care for life, person or property of 
others. Bartolucci v. Falleti, 314 Ill.App. 551, 41 N.E.2d 
777, 780. 
Legantine constitutions /leg;}nt;}n konst;}t(y)uwsh;}nz/. 
The name of a code of ecclesiastical laws, enacted in 
national synods, held under legates from Pope Gregory 
IX, and Clement IV, in the reign of Henry III, about the 
years 1220 and 1268. 
Legare /bgeriy/. Lat. In the civil and old English law, 
to bequeath; to leave or give by will; to give in anticipa
tion of death. 
Legatarius /leg;}teriy;}s/. Lat. In the civil law, one to 
whom a thing is bequeathed; a legatee or legatary. In 
old European law, a legate, messenger, or envoy. 
Legatary /leg;}t;}riy /. One to whom anything is be
queathed; a legatee. This word is sometimes, though 
seldom, used to designate a legate or nuncio. 
Legatee /leg;}tiy /. The person to whom a legacy in a 
will is given. The term may be used to denominate 
those who take under will without any distinction be
tween realty and personalty, Brooker v. Brooker, Tex. 
Civ.App ., 76 S.W.2d 180, 183; though commonly it refers

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LEGATEE 
to one who takes personal property under a will. See 
Legacy. 
Residuary legatee. The person to whom a testator be
queaths the residue of his personal estate, after the 
payment of such other legacies as are specifically men
tioned in the will. 
Legates /U�g�ts/. Nuncios, deputies, or extraordinary 
ambassadors sent by the pope to be his representatives 
and to exercise his jurisdiction in countries where the 
Roman Catholic Church is established by law. 
Legation. An embassy; a diplomatic minister and his 
suite. The persons commissioned by one government to 
exercise diplomatic functions at the court of another, 
including the minister, secretaries, attaches, interpret
ers, etc., are collectively styled the "legation" of their 
government. The word also denotes the official resi
dence of a foreign minister. 
Legator /l�geyt�r/. One who makes a will, and leaves 
legacies. 
Legatory Ileg�t�riy/. In old English law, the third part 
of a freeman's personal estate, which by the custom of 
London, in case he had a wife and children, the freeman 
might always have disposed of by will. 
Legatos violare contra jus gentium est Il�geytows 
vay�leriy kontr� j�s jensh(iy)�m est/. It is contrary to 
the law of nations to injure ambassadors. 
Legatum Il�geyt�m/. Lat. In old English law, a legacy 
given to the church, or an accustomed mortuary. In the 
civil law, a legacy; a gift left by a deceased person, to be 
executed by the heir. 
Legatum morte testatoris tantum confirmatur, sicut 
donatio inter vivos traditione sola Il�geyt�m mortiy 
test�tor�s trent�m konf�rmeyt�r sik�t d�neysh(iy)ow 
int�r vayvows tr�dishiyowniy sowl�/. A legacy is con
firmed by the death of a testator, in the same manner as 
a gift from a living person is by delivery alone. 
Legatum optionis Il�geyt�m opshiyown�s/. In Roman 
law, a legacy to A. B. of any article or articles that A. B. 
liked to choose or select out of the testator's estate. If 
A. B. died after the testator, but before making the 
choice or selection, his representative (hreres) could not, 
prior to Justinian, make the selection for him, but the 
legacy failed altogether. Justinian, however, made the 
legacy good, and enabled the representative to chose. 
Legatus regis vice fungitur a quo destinatur et hono
randus est sicut ille cujus vicem gerit Il�geyt�s riyj�s 
vaysiy f�nj�t�r ey kwow dest�neyt�r et on�rrend�s est 
sik�t iliy kyUwj�s vays�m jehr�tI. An ambassador fills 
the place of the king by whom he is sent, and is to be 
honored as he is whose place he fills. 
Legem /liyj�m/. Lat. Accusative of lex, law. Occur
ring in various legal phrases, as follows: 
Legem amittere /liyj�m �mit�riy / . To lose one's law; 
that is, to lose one's privilege of being admitted to take 
an oath. 
898 
Legem facere /liyj�m feys�riy/. In old English law, to 
make law or oath. 
Legem ferre /liyj�m fehriy/. In Roman law, to propose 
a law to the people for their adoption. 
Legem habere /liyj�m h�biriy /. To be capable of giving 
evidence upon oath. Witnesses who had been convicted 
of crime were incapable of giving evidence, until 6 & 7 
Vict., c. 85. 
Legem jubere /liyj�m j�biriy/. In Roman law, to give 
consent and authority to a proposed law; to make or 
pass it. 
Legem pone Iliyj�m powniy /. To propound or lay down 
the law. By an extremely obscure derivation or analo
gy, this term was formerly used as a slang equivalent for 
payment in cash or in ready money. 
Legem sciscere /liyj�m sis�riy /. To give consent and 
authority to a proposed law; applied to the consent of 
the people. 
Legem terrre amittentes, perpetuam infamire notam 
inde merito incurrunt /liyj�m tehriy rem�tentiyz 
p�rpetyuw�m infeymiyiy nowt�m indiy mehr�tow 
ink�hr�nt/. Those who lose the law of the land, then 
justly incur the ineffaceable brand of infamy. 
Legem vadiare /liyj�m vrediyeriy/. In old English law, 
to wage law; to offer or to give pledge to make defense, 
by oath, with compurgators. 
Legenita. A fine for criminal conversation with a wom
an. See Legruita. 
Leges /liyjiyz/. Lat. Laws. At Rome, the leges (the 
decrees of the people in a strict sense) were laws which 
were proposed by a magistrate presiding in the senate, 
and adopted by the Roman people in the comitia centuri
ata. 
Leges Anglire /liyjiyz re1)gliyiy / . The laws of England, 
as distinguished from the civil law and other foreign 
systems. 
Leges Anglire sunt tripartitre,-jus commune, consue
tudines, ac decreta comitiorum /liyjiyz re1)gliyiy s�nt 
traypart�tiy, j�s k�myuwniy, konsw�tCy)uwd�niyz, rek 
d�kriyt� k�mishiyor�m/. The laws of England are 
threefold,-common law, customs, and decrees of par
liament. 
Leges barbarorum /liyjiyz barbaror�m/. A class name 
for the codes of medireval European law. 
Leges Edwardi confessoris /liyjiyz edwarday konf�
sor�s/. A name used for a legal treatise written from 
11 30 to 113 5, which presents the law in force toward the 
end of Henry I. Its authority is said to be undeserved. 
Leges et consuetudini regni /liyjiyz et konsw�
tCy)uwd�nay regnay/. The accepted name for the com
mon law from an early time; since the latter half of the 
12th century at least. 
Leges figendi et refigendi consuetudo est periculosis
sima /liyjiyz f�jenday et rer�jenday konsw;tCy)uwdow 
est p;rikCy)�lowsis�m�/. The practice of fIXing and re-

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fixing [making and remaking] the laws is a most danger
ous one. 
Leges Henrici lliyjiyz hEmraysay I. A book written be
tween 111 4 and 111 8 containing Anglo-Saxon and Nor
man law. It is said to be an invaluable source of 
knowledge of the period preceding the full development 
of the Norman law. 
Leges bumanc:e nascuntur, vivunt, et moriuntur 
lliyjiyz hy;:,meyniy n;:,sk�nt;:,r, vayv;:,nt, et moriy�nt;:,r/. 
Human laws are born, live, and die. 
Leges Julire lliyjiyz juwliyiy/. Laws enacted during the 
reign of Augustus or of Julius Cresar which, with the lex 
abutia, effectually abolished the legis actiones. 
Leges naturre perfectissimre sunt et immutabiles; bu
mani vero juris conditio semper in infinitum decur
rit, et nihil est in eo quod perpetuo stare possit. 
Leges bumanre nascuntur, vivunt, moriuntur /liyjiyz 
n;:,tyuriy p�rfektis;:,miy s�nt et imyuwteyb;:,liyz; 
hyuwmeyniy virow jur;:,s k;:,ndish(iy)ow semp;:,r in 
inf;:,nayt;:,m d;:,k�hr;:,t, et nay(h);:,l est in iyow kwod 
p;:,rpet(y)uwow steriy pos;:,t. liyjiyz hyumeyniy 
n;:,sk�nt;:,r, vayv;:,nt, moriy�nt;:,r/. The laws of nature 
are most perfect and immutable; but the condition of 
human law is an unending succession, and there is 
nothing in it which can continue perpetually. Human 
laws are born, live, and die. 
Leges non scriptre lliyjiyz non skriptiy I. In English 
law, unwritten or customary laws, including those an
cient acts of parliament which were made before time of 
memory. 
Leges non verbis, sed rebus, sunt impositre lliyjiyz 
non v�rb;:,s sed riyb;:,s s�nt ;:,mpoz;:,tiy I. Laws are im
posed, not on words, but things. 
Leges posteriores priores contrarias abrogant lliyjiyz 
p;:,stiriyoriyz prayoriyz k;:,ntreriy;:,s rebr;:,g;:,nt/. Later 
laws abrogate prior laws that are contrary to them. 
Leges sacratre lliyjiyz s;:,kreydiy I. All solemn compacts 
between the plebeians and patricians were so called. 
Leges scriptre lliyjiyz skriptiy/. In English law, written 
laws; statute laws, or acts of parliament which are 
originally reduced into writing before they are enacted, 
or receive any binding power. 
Leges sub graviori lege lliyjiyz s�b grreviyoray liyjiy I. 
Laws under a weightier law. 
Leges suum ligent latorem lliyjiyz s(y)uw;:,m lij;:,nt 
l;:,tor;:,m/. Laws should bind their own maker. 
Leges tabellarire lliyjiyz treb;:,leriyiy I. Roman laws reg
ulating the mode of voting by ballot (tabella). 
Leges vigilantibus, non dormientibus, subveniunt 
I liyj iyz vij;:,lrent;:,b;:,s non dormiyent;:,b;:,s s;:,bviy
n(i)y;:,nt/. The laws aid the vigilant, not the negligent. 
Legibus solutus lliyj;:,b;:,s s;:,l(y)uwt;:,s/. Lat. Released 
from the laws; not bound by the laws. An expression 
applied in the Roman civil law to the emperor. 
LEGISLATIVE COURTS 
Legibus sumptis desinentibus, lege natureae, uten
dum est lliyj;:,b;:,s s�m(p)t;:,s des;:,nent;:,b;:,s liyjiy n;:,t(y)uriy 
yuwtend;:,m est I . When laws imposed by the state fail, 
we must act by the law of nature. 
Legiosus lliyjiyows;:,s/. In old records, litigious, and so 
subjected to a course of law. 
Legis constructio non facit injuriam lliyj;:,s k;:,n
str�ksh(iy)ow non feys;:,t ;:,njuriy;:,m/. The construction 
of law does no injury. 
Legis interpretatio legis vim obtinet lliyj;:,s ;:,nt�rpr;:,te
ysh(iy)ow liyj;:,s vim obt;:,n;:,t/. The interpretation of law 
obtains the force of law. 
Legislate. To enact laws or pass resolutions via legisla
tion, in contrast to court-made law. State ex reI. Nunez 
v. Baynard, La.App., 15 So.2d 649, 655. 
Legislation. The act of giving or enacting laws; the 
power to make laws; the act of legislating; preparation 
and enactment of laws; the making of laws via legisla
tion, in contrast to court-made laws. Formulation of 
rule for the future. Laws enacted by lawmaking body 
(e.g. by Congress or state legislature). Oklahoma City, 
OkI. v. Dolese, C.C.A.OkI., 48 F.2d 734, 738. See also Act 
(Legislative act); Bill; Class legislation; Statute. 
Legislative. Making or giving laws; pertaining to the 
function of law-making or to the process of enactment of 
laws. Actions which relate to subjects of permanent or 
general character are "legislative". Keigley v. Bench, 
97 Utah 69, 89 P.2d 480, 484, 485. Making or having 
the power to make a law or laws. 
Legislative act. Enactment of laws. Law (i.e. statute) 
passed by legislature in contrast to court-made law. 
One which prescribes what the law shall be in future 
cases arising under its provisions. Forstner v. City and 
County of San Francisco, 52 CaI.Rptr. 621, 626, 243 
C.A.2d 625, 67 C.2d 666. See Statute. 
Legislative apportionment. Amend. XIV, § 2, of U.S. 
Const. provides that representatives to congress "shall 
be apportioned among the several states according to 
their respective numbers, counting the whole number of 
persons in each state." Equal protection under the 
Fourteenth Amendment of the U.S. Constitution re
quires the allocation of representatives on a population 
basis and a justiciable issue is presented when a claim is 
made that states are denying right of representation to 
its citizens. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 
L.Ed.2d 663. See also Apportionment; Reapportionment. 
Legislative council. A legislative agency used in some 
states which is composed of legislators and other select
ed officials who study legislative problems and plan 
legislative strategy between regular legislative sessions. 
Legislative counsel. A person or agency specially 
charged with assisting legislators in fulfilling their legis
lative tasks. Legislative counsel handles problems of 
research, drafting bills, legislative hearings, and other 
technical legislative details. 
Legislative courts. Courts created by legislature in 
contrast to those created by constitution (e.g. Art. III of

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LEGISLATIVE COURTS 
U.S.Const.). In many states almost all courts are cre
ated by Legislature, though court of last resort is com
monly creature of its constitution. Compare Constitu
tional court. 
Legislative department. That department of govern
ment (i.e. Congress, consisting of Senate and House of 
Representatives; Art. I of U.S.C onst.) whose appropriate 
function is the making or enactment of laws, as distin
guished from the judicial department (Article III), which 
interprets and applies the laws, and the executive de
partment (Article II), which carries them into execution 
and effect. See also Legislature. 
Legislative districting. The apportionment or division 
of a legislative body into territorial districts. See Appor
tionment; Legislative apportionment; Reapportionment. 
Legislative divorce. A divorce decreed by an act of the 
legislature as to one particular couple and not by judi
cial decree. While legislative divorces once existed in 
New England states, and parliamentary divorces once 
were granted in England, such have long been supersed
ed by judicial divorces. 
Legislative functions. The determination of legislative 
policy and its formation as rule of conduct. Yakus v. 
United States, 321 U.S. 414, 64 S.Ct. 660, 667, 88 L.Ed. 
834. The formation and determination of future rights 
and duties. Dal Maso v. Board of Com'rs of Prince 
George's County, 182 Md. 200, 34 A.2d 464, 466. See 
also Legislative power. 
Legislative history. The background and events, in
cluding committee reports, hearings, and floor debates, 
leading up to enactment of a law. Such history is 
important to courts when they are required to deter
mine the legislative intent of a particular statute. Leg
islative histories of major statutes are published in U.S. 
Code, Congressional and Administrative News. 
Legislative immunity. The Constitution grants two im
munities to Congressmen, first, that except for treason, 
felony, and a breach of the peace, they are "privileged 
from Arrest during their Attendance" at sessions of 
their body, and, second, that "for any Speech or Debate 
in either House, they shall not be questioned in any 
other Place." (Art. I, § 6, cl. 1). The first immunity is 
of little practical value, for its exceptions withdraw all 
criminal offenses and arrests therefor from the privi
lege, and it does not apply to the service of any process 
in a civil or criminal matter. The second immunity is 
liberally construed and includes not only opinion, 
speeches, debates, or other oral matter, but also voting, 
making a written report or presenting a resolution, and 
in general to whatever a congressman feels necessary to 
transact the legislative functions and business. Even a 
claim of a bad motive does not destroy the immunity, for 
it is the public good which is thereby served. E.g., 
United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 
321; United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 
L.Ed. 954. 
Legislative intent. Such is looked to when court at
tempts to construe or interpret a statute which is ambig
uous or inconsistent. See also Legislative history. 
900 
Legislative investigations. Legislatures are empow
ered to make investigations as an incident of their 
legislative authority; included are powers of subpoena, 
cross examination, etc. Quinn v. United States, 349 
U.S. 155, 161, 75 S.Ct. 668, 99 L.Ed. 964. 
Legislative jurisdiction. The sphere of authority of a 
legislative body to enact laws and to conduct all business 
incidental to its law-making function. Art. I of U.S. 
Constitution. 
Legislative officer. A member of the legislative body or 
department of a state or municipal corporation. One of 
those whose duties relate mainly to the enactment of 
laws, such as members of congress and of the several 
state legislatures. These officers are confined in their 
duties by the constitution generally to make laws, 
though sometimes, in cases of impeachment, one of the 
houses of the legislature exercises judicial functions 
somewhat similar to those of a grand jury, by presenting 
to the other articles of impeachment, and the other 
house acts as a court in trying such impeachment. 
Legislative power. The lawmaking powers of a legisla
tive body, whose functions include the power to make, 
alter, amend and repeal laws. In essence, the legisla
ture has the power to make laws and such power is 
reposed exclusively in such body though it may delegate 
rule making and regulatory powers to departments in 
the executive branch. It may not, however, delegate its 
law making powers nor is the judicial branch permitted 
to obtrude into its legislative powers. The enumerated 
powers of Congress are provided for in Article I of the 
U.S. Constitution. 
Legislative rule. A rule issued by an administrative 
agency pursuant to statutory authority implementing 
statute that has force and effect of law. American 
Medical Ass'n v. Heckler, D.C.lnd., 606 F.Supp. 1422, 
1439. Those rules that are promulgated pursuant to 
congressional delegation of power to issue rules and 
regulations that have force of law and are binding on 
courts because they are source of law that court and 
agency must enforce. American Trucking Ass'n, Inc. v. 
U.S., C.A. ll, 688 F.2d 1337, 1341. 
Legislator. One who makes laws; a member of a feder
al, state or municipal lawmaking body; senator, repre
sentative, assemblyman. 
Legislatorum est viva vox, rebus et non verbis legem 
imponere /lej�sl�t6r�m est vayv� v6ks, riyb�s et non 
v;}rb�s liyj�m imp6wn�riy /. The voice of legislators is a 
living voice, to impose laws on things, and not on words. 
Legislature. The department, assembly, or body of per
sons that makes statutory laws for a state or nation. At 
the federal level, and in most states, the legislature is 
bicameral in structure, usually consisting of two branch
es; i.e. upper house (Senate) and lower house (House of 
Representatives or Assembly). Legislative bodies at the 
local levels are variously called city councils, boards of

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901 
aldermen, etc. See Chamber; Congress; Legislative de
partment; Legislative districting. 
Legis minister non tenetur in executione officii sui, 
fugere aut retrocedere lliyj�s m�nist�r non t�niyt�r in 
eks�kyuwshiyowniy �fis(h)iyay s(y)uway fyuwj�riy ot 
retr�siyd�riy I. The minister of the law is bound, in the 
execution of his office, not to fly nor to retreat. 
Legisperitus lliyj�sp�rayt�sl. Lat. A person skilled or 
learned in the law; a lawyer or advocate. 
Legitimacy. Lawful birth; the condition of being born 
in wedlock; the opposite of illegitimacy or bastardy. 
Legitimate, v. To make lawf ul; to confer legitimacy; 
e.g. , to place a child born before marriage on the legal 
footing of those born in lawful wedlock. 
Legitimate, adj. That which is lawful, legal, recognized 
by law, or according to law; as, legitimate children, 
legitimate authority, lawful power, legitimate sport or 
amusement. People v. Commons, 64 Cal.App.2d Supp. 
925, 148 P.2d 724, 731. Real, valid, or genuine. United 
States v. Schenck, C.C.A.N.Y., 126 F.2d 702, 705, 707. 
See Presumption of legitimacy. 
Legitimation. The making legitimate or lawful that 
which was not originally so; especially the statutory 
procedure of legalizing (legitimating) the status of an 
illegitimate child. Such is usually necessary to assure 
inheritance rights to child. 
Legitimation per subsequens matrimonium 
Ibjit�meysh�n p�r s�bsiykw�nz mretr�mown(i)y�ml . 
The legitimation of a bastard by the subsequent mar
riage of his parents. 
Legitime Ibjit�miy/. Lat. In the civil law, that portion 
of a parent's estate of which he cannot disinherit his 
children without a legal cause. That interest in a 
succession of which forced heirs may not be deprived. It 
may also apply to father or mother. 
Legitime imperanti parere necesse est Il�jit�miy 
imp�rrentay p�ririy n�sesiy est/. One lawfully com
manding must be obeyed. 
Legitimi hreredes Il�jit�may h�riydiyz/. Lat. In Ro
man law, legitimate heirs; the agnate relations of the 
estate-leaver; so called because the inheritance was 
given to them by a law of the Twelve Tables. 
Legitimus Il�jit�m�sl. Lawful; legitimate. Legitimus 
hreres et filius · est quem nuptire demons tran t, a lawful 
son and heir is he whom the marriage points out to be 
lawful. 
Legit vel non? lliyj�t vel non/. In old English practice, 
this was the formal question propounded to the ordinary 
when a prisoner claimed the benefit of clergy,--does he 
read or not? If the ordinary found that the prisoner 
was entitled to clergy, his formal answer was, "Legit ut 
clericus, " he reads like a clerk. 
Lego lliygow/. Lat. In Roman law, I bequeath. A 
common term in wills. 
Legruita. In old records, a fine for criminal conversa
tion with a woman. See Legenita. 
LENDER 
Le guidon de la mer /b giydown d� la mer /. The title 
of a French work on marine insurance, by an unknown 
author, dating back, probably, to the sixteenth century, 
and said to have been prepared for the merchants of 
Rouen. It is noteworthy as being the earliest treatise on 
that subject now extant. 
Leguleius Ilegy�liy�sl. A person skilled in law (in legi
bus versatus); one versed in the forms of law. 
Lehurecht. The German feudal law. 
Leidgrave Ileydgreyv I. An officer under the Saxon 
government, who had jurisdiction over a lath. 
Leipa lliyp�/. In old English law, a fugitive or runaway. 
Le ley de dieu et ley de terre sont tout un; et l'un et 
l'autre preferre et favour Ie common et pubUque 
bien del terre. The law of God and the law of the land 
are all one; and both preserve and favor the common 
and public good of the land. 
Le ley est Ie plus haut enheritance que Ie roy ad, car 
per Ie ley il mesme et touts ses sujets sont rules; et, 
si Ie ley ne fuit, nul roy ne nul enheritance serra. 
The law is the highest inheritance that the king possess
es, for by the law both he and all his subjects are ruled; 
and, if there were no law, there would be neither king 
nor inheritance. 
Lemon laws. Laws enacted in many states governing 
rights of purchasers of new and used motor vehicles 
which do not function properly and which have to re
peatedly be returned to the dealer for repairs. Such 
laws give redress to purchasers and permit refund of 
purchase price after certain steps are taken and oppor
tunity has been given dealer to correct defects. 
Le mort saisit Ie vif. Doctrine of "Ie mort saisit Ie vif' 
requires that there can be no gap in seisin, and on death 
of de cujus, legal title immediately vests in heirs of 
deceased, and that is not to say that doctrine is so 
narrow as to exclude unknown heirs or absent heirs at 
date of death. Kuchenig v. California Co., C.A.La., 410 
F.2d 222, 230. 
Lend. To give or put out for hire or compensation. To 
part with a thing of value to another for a time fixed or 
indefinite, yet to have some time in ending, to be used or 
enjoyed by that other; the thing itself or the equivalent 
of it to be given back at the time fixed, or when lawfully 
asked for, with or without compensation for the use as 
may be agreed upon. Term "lend" when used in a will 
means to "give" or "devise." To provide money to 
another for a period of time, usually with interest 
charge to be incurred by borrower. See also Loan. 
Lender. He from whom a thing or money is borrowed. 
The bailor of an article loaned. A bank or other lending 
institution. 
Lending or loaning money or credit. Transactions 
creating customary relation of borrower and lender, in 
which money is borrowed for fixed time on borrower's 
promise to repay amount borrowed at stated time in 
future with interest at fixed rate. Bannock County v. 
Citizens' Bank & Trust Co., 53 Idaho 159, 22 P.2d 674.

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LENITY RULE 
Lenity Rule. This rule provides that where there is 
ambiguity in the language of a statute concerning multi
ple punishment, ambiguity should be resolved in favor 
of lenity in sentencing. U.S. v. Barrington, C.A.Va., 662 
F.2d 1046, 1054. 
Lent. In Ecclesiastical law, the quadragesimal fast; a 
time of abstinence; the time from Ash Wednesday to 
Easter. 
Leod. People; a people; a nation. 
Leodes Iliyowdiyzl. In old European law, a vassal, or 
leige man; service; a were or weregild. 
Leonina societas Iliy:mayn� s�say�tres/. . Lat. An at
tempted partnership, in which one party was to bear all 
the losses, and have no share in the profits. This was a 
void partnership in Roman law; and, apparently, it 
would also be void as a partnership in English law, as 
being inherently inconsistent with the notion of partner
ship. 
Leproso amovendo Ileprowsow eym�vendow I. An an
cient writ that lay to remove a leper or lazar, who thrust 
himself into the company of his neighbors in any parish, 
either in the church or at other public meetings, to their 
annoyance. 
Le roi, or roy Il� royll� r(w)ey/. The old law-French 
words for "the king". 
Le roi veut en deliberer. The king will deliberate on it. 
This is the formula which the king of the French used 
when he intended to veto an act of the legislative 
assembly. 
Le roy (or la reine) Ie veut. The king (or the queen) 
wills it. The form of the royal assent to public bills in
parliament. 
Le roy (or la reine) remercie ses loyal sujets, accepte 
leur benevolence, et ainsi Ie veut. The king (or the 
queen) thanks his (or her) loyal subjects, accepts their 
benevolence, and therefore wills it to be so. The form of 
the royal assent to a bill of supply. 
Le roy (or la reine) s'avisera. The king (or queen) will 
advise upon it. The form of words used to express the 
refusal of the royal assent to public bills in parliament. 
1 Bl.Comm. 184. This is supposed to correspond to the 
judicial phrase "curia advisari vult" (q.v .). 
Le salut du peuple est la supreme loi. The safety of 
the people is the highest law. 
Leschewes. Trees fallen by chance or windfalls. 
Lese majesty lliyz mrej�stiy/. The old English and 
Scotch translation of "lcesa majestas," or high treason. 
Les fictions naissent de la loi, et non la loi des 
fictions Iley fiksyown nes d� la lwa, ey nown la lwa dey 
fiksyown/. Fictions arise from the law, and not law 
from fictions. 
Lesing or leasing. Gleaning. 
Lesion lliyzh�n/. Damage; injury; detriment; sore; 
wound. Gasperino v. Prudential Ins. Co. of America, 
Mo.App., 107 S.W.2d 819, 827. Hurt, loss, or injury. 
902 
Order of United Commercial Travelers of America v. 
Sevier, C.C.A.Mo., 121 F.2d 650, 654. Any change in the 
structure of an organ due to injury or disease, whether 
apparent or diagnosed as the cause of a functional 
irregularity or disturbance. 
In the civil law, the injury suffered by one who does 
not receive a full equivalent for what he gives in a 
commutative contract. Inequality in contracts. 
Les lois ne se chargent de punir que les actions 
exterieures Iley lwa n� s� sharzh d� pyunir k� 
leyzaksyownz eksteriyur I. Laws do not undertake to 
punish other than outward actions. 
Lessee. One who rents property from another. In the 
case of real estate, the lessee is also known as the 
tenant. He to whom a lease is made. He who holds an 
estate by virtue of a lease. One who has been given 
possession of land which is exclusive even of the land
lord, except as the lease permits his entry, and except 
right to enter to demand rent or to make repairs. 
Seabloom v. Krier, 219 Minn. 362, 18 N.W.2d 88, 91. 
See also Tenant. 
A person who acquires the right to possession and use 
of goods under a lease. Unless the context clearly 
indicates otherwise, the term includes a sublessee. 
U.C.C. § 2A-103. 
Lessee's interest. The appraised value of a lessee's 
interest in order to determine its worth for assignment 
or sale. In appraising the value of a potential sublease 
or assignment (sale) of the lease, the value is the market 
value of the property, less the interest of the lessor. 
The lessor's interest would be largely determined by the 
ratio of the return on the lease to the market value 
without the lease. 
Lesser included offense. One which is composed of 
some, but not all elements of a greater offense and 
which does not have any element not included in greater 
offense so that it is impossible to commit greater offense 
without necessarily committing the lesser offense. 
State v. Garcia, App., 100 N.M. 120, 666 P.2d 1267, 1272. 
One that does not require proof of any additional ele
ment beyond those required by the greater offense. 
Government of Virgin Islands v. Bedford, C.A. Virgin 
Islands, 671 F_2d 758, 765. One which must necessarily 
be included in the greater offense. State v. Etzweiler, 
125 N.H. 57, 480 A.2d 870, 876. One which includes 
some of the elements of the crime charged in the infor
mation without the addition of any element irrelevant 
to the original charge. State v. Johnsen, 197 Neb. 216, 
247 N.W.2d 638, 640. When it is impossible to commit a 
particular crime without concomitantly committing, by 
the same conduct, another offense of lesser grade or 
degree, the latter is, with respect to the former, a "lesser 
included offense". In any case in which it is legally 
possible to attempt to commit a crime, such attempt 
constitutes a lesser included offense with respect there
to. The defendant may be found guilty of an offense 
necessarily included in the offense charged. Fed.R. 
Cr im.P. 31. See also Necessarily included offense. 
Lessor. He who grants a lease. One who rents property 
to another. In the case of real estate, the lessor is also 
known as the landlord. One who has leased land for a

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definite or indefinite period, by a written or parol lease, 
irrespective of whether a statute of fraud requires the 
lease to be in writing. City of Tyler v. Ingram; 139 Tex. 
600, 164 S.W.2d 516, 520. See also Landlord. 
A person who transfers the right to possession and use 
of goods under a lease. Unless the context clearly 
indicates otherwise, the term includes a sublessor. 
U.C.C. § 2A-103. 
Lessor of the plaintiff. In the common law action of 
ejectment, this was the party who really and in effect 
prosecuted the action and was interested in its result. 
The reason of his having been so called arose from the 
circumstance of the action having been carried on in the 
name of a nominal plaintiff (John Doe), to whom the 
real plaintiff had granted a fictitious lease, and thus had 
become his lessor. 
Lessor's interest. The present value of the future in
come under the lease, plus the present value of the 
property after the lease expires (reversion). 
Let, v. Contracts. To award to one of several persons, 
who have submitted proposals (bids) therefor, the con
tract for erecting public works or doing some part of the 
work connected therewith, or rendering some other ser
vice to government for a stipulated compensation. Let
ting the contract is the choosing one from among the 
number of bidders, and the formal making of the con
tract with him. The letting, or putting out, is a differ
ent thing from the invitation to make proposals; the 
letting is subsequent to the invitation. It is the act of 
awarding the contract to the proposer, after the propos
als have been received and considered. 
Conveyancin g. To demise or lease a certain property. 
See Lease. 
Judicial orders and decrees. The word "let" (in the 
imperative) imports a positive direction or command. 
Thus the phrase "let the writ issue as prayed" is equiva
lent to "it is hereby ordered that the writ issue," etc. 
Practice. To deliver. "To let to bail" is to deliver to bail 
on arrest. 
Let, n. In old conveyancing, hindrance; obstruction; 
interruption. 
Lethal. Deadly, mortal, fatal. Vaughn v. Kansas City 
Gas Co., 236 Mo.App. 669, 159 S.W.2d 690, 698. 
Lethal weapon. A deadly weapon (q.v .). 
Letter. One of the arbitrary marks or characters consti
tuting the alphabet, arid used in written language as the 
representatives of sounds or articulations of the human 
organs of speech. 
A dispatch or epistle; a written or printed message; a 
communication in writing from one person to another at 
a distance. In the imperial law of Rome, "letter" or 
"epistle" was the name of the answer returned by the 
emperor to a question of law submitted to him by the 
magistrates. 
A communication inclosed, sealed, stamped, carried 
and delivered by private or U.S. Postal service. Hyney 
LETTER OF CREDIT 
v. U. S., C.C.A.Mich., 44 F.2d 134, 136; Wolpa v. U. S., 
C.C.A.Neb., 86 F.2d 35, 39. 
A commission, patent, or written instrument contain
ing or attesting the grant of some power, authority, or 
right. 
The word appears in this generic sense in many com
pound phrases known to commercial law and jurispru
dence; e.g., letter of attorney, letter missive, letter of 
credit, letters patent. The plural is frequently used. 
Metaphorically, the verbal expression; the strict liter
al meaning. The letter of a statute, as distinguished 
from its spirit, means the strict and exact force of the 
language employed, as distinguished from the general 
purpose and policy of the law. 
As to letters of Administration; Advice; Attorney; Cred
it; Recommendation, see those titles. As to Letters pat
ent, see Patent. 
Letter-book. A book in which a merchant or trader 
keeps copies of letters sent by him to his correspondents. 
Letter contract. In federal contract law, a written 
contractual instrument with sufficient provisions to per
mit contractor to begin performance. Boeing Co. v. 
Omdahl, N.D., 169 N.W.2d 696, 702. 
Letter missive. In old English law, a letter from the 
king or queen to a dean and chapter, containing the 
name of the person whom he would have them elect as 
bishop. A request addressed to a peer, peeress, or lord 
of parliament against whom a bill has been filed desir
ing the defendant to appear and answer to the bill. In 
civil-law practice, the phrase "letters missive," or "let
ters dimissory," is sometimes used to denote the papers 
sent up on an appeal by the judge or court below to the 
superior tribunal, otherwise called the "apostles" (q.v.). 
Letter of administration. See Letters of administration. 
Letter of advice. Drawer's communication to the 
drawee that a described draft has been drawn. U.C.C. 
§ 3-701(1). 
Letter of attornment. A letter from a grantor to a 
tenant, stating that the property has been sold, and 
directing rent to be paid to the grantee (new owner). 
Letter of comment. Letters of comment are sent out by 
the S.E.C. in most cases as a means of informing regis
trants of securities offerings of the respects in which a 
registration statement is deemed not to meet the disclo
sure and other requirements of the Securities Exchange 
Act and the forms and regulations thereunder. A letter 
of comment may not be sent out, however, where the 
circumstances are such that an investigatory or stop 
order proceeding is deemed more appropriate. 
Letter of credence. In international law, the document 
which accredits an ambassador, minister, or envoy to 
the courts or government to which he is sent; i.e., 
certifies to his appointment and qualification, and be
speaks credit for his official actions and representations. 
Letter of credit. An engagement by a bank or other 
person made at the request of a customer that the issuer 
will honor drafts or other demands for payment upon

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LETTER OF CREDIT 
compliance with the conditions specified in the credit. 
A credit may be either revocable or irrevocable. The 
engagement may be either an agreement to honor or a 
statement that the bank or other person is authorized to 
honor. U.C.C. § 5-103. Letters of credit are intended 
generally to facilitate purchase and sale of goods by 
providing assurance to the seller of prompt payment 
upon compliance with specified conditions or presenta
tion of stipulated documents without the sellers having 
to rely upon the solvency and good faith of the buyer. 
Lustrelon, Inc. v. Prutscher, 178 N.J.S uper. 128, 428 
A.2d 518, 523. 
See also. Advice af credit. 
CDmmercial letter. Type of letter Df credit used by 
buyer of merchandise who sends it to bank in district in 
which he is to. buy and seller then presents his bill of 
sale, etc. to obtain payment. See also. Cammercial credit. 
CDnf irmed letter. Type of letter of credit in which local 
bank gives its guarantee that seller's draft will be hon
ored if the bank which issued letter fails to honor it. 
EXpDrt letter. Type of letter of credit forwarded to seller 
or exporter advising him that a credit has been estab
lished in his favor by a foreign bank and further con
senting to honor the seller's or exporter's draft for the 
goods. 
General and special. A general letter of credit is one 
addressed to any and all persons, without naming any 
one in particular, while a special letter of credit is 
addressed to a particular individual, firm, or corporation 
by name. 
Im pDrt letter. Type of letter of credit issued by a foreign 
bank to a local seller permitting him to draw draft on 
the foreign bank against shipment of the merchandise. 
Irr evDcable letter. Type of letter of credit in which 
issuing bank guarantees that it will not withdraw the 
credit or cancel the letter before the expiration date. A 
letter of credit which cannot be m odified or revoked as 
regards the customer or the beneficiary without his or 
her consent. 
Open credit. See Open letter af credit. 
RevDcable letter. Letter of credit in which the issuing 
bank reserves the right to cancel and withdraw from the 
transaction upon appropriate notice. 
RevDlvin g credit. See Revalving credit. 
Standby letter. A letter of credit which commits the 
issuer to honor the credit not upon evidence of perform
ance by the beneficiary, as by presenting evidence of the 
shipment of goods to the customer, but upon evidence or 
a mere declaration of the customer's default in the 
underlying transaction with the beneficiary. 
Straight credit. A letter of credit that does not run in 
favor of purchasers of drafts drawn thereunder. 
Time credit. A letter of credit that is duly honored by 
the issuer accepting drafts drawn thereunder. Essen
tially synonymous with "usance credit" and "acceptance 
credit." 
904 
Transferable credit. A letter of credit that authorizes 
the beneficiary to assign the right to draw thereunder. 
Traveler's letter. Type of letter of credit used by one 
traveling abroad in which the issuing bank authorizes 
payment of funds to holder in the local currency by a 
local bank. The holder signs a check on the issuing 
bank and the local bank forwards it to the issuing bank 
for its credit. 
Letter of exchange. A bill of exchange (q.v .). 
Letter of intent. A letter of intent is customarily em
ployed to reduce to writing a preliminary understanding 
of parties who intend to enter into contract, Garner v. 
Boyd, D.C.Tex., 330 F.Supp. 22, 25, or who intend to take 
some other action such as merger of companies. 
Letter of license. In English law, a written instrument 
in the nature of an agreement, signed by all the credi
tors of a failing or embarrassed debtor in trade, granting 
him an extension of time for the payment of the debts, 
allowing him in the meantime to carry on the business 
in the hope of recuperation, and protecting him from 
arrest, suit, or other interference pending the agree
ment. A similar arrangement with creditors is provided 
for in United States under the federal Bankruptcy Act. 
See Arrangement with creditars. 
Letter of marque and reprisal. An authorization for
merly granted in time of war by a government to the 
owner of a private vessel to capture enemy vessels and 
goods on the high seas. Art. I, Sec. 8 of U.S.C onst. The 
signatory powers to the Declaration of Paris in 1856 
agreed to stop issuing such authorizations. 
Letter of recall. A document addressed by the executive 
of one nation to that of another, informing the latter 
that a minister sent by the former has been recalled. 
May also refer to letter sent by manufacturer of product 
to purchasers requesting that they bring product, auto
mobile, etc. into dealer to repair or replace item. 
Letter of recredentials /led�r �v riykr�densh�lz/. A 
document embodying the formal action of a government 
upon a letter of recall of a foreign minister. It, in effect, 
accredits him back to his own government. It is ad
dressed to the latter government, and is delivered to the 
minister by the diplomatic secretary of the state from 
which he is recalled. 
Letter of the law. Expression used to denote the exact, 
strict interpretation of a statute, ordinance, regulation, 
or law. 
Letter patent. See Letters patent. 
Letter ruling. A written statement which is issued to a 
taxpayer by Office of Assistant Commissioner of I.R.S. in 
which interpretations of tax laws are made and applied 
to a specific set of fRctS. Tax Analysts and Advocates v. 
Internal Revenue Service, D.C.D.C., 362 F.Supp. 1298, 
1301. Such is issued in response to request for ruling by 
a private party of tax implications of a particular trans
action. 
Letters. In probate practice, includes letters testamenta
ry, letters of guardianship, letters of administration, and

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letters of conservatorship. Uniform Probate Code, 
§ 1-201(23). See Letters of admin istration. 
Letters ad colligendum bona defuncti Ilet::lrz eM 
k6bjend::lm bown::l d::lf�lJ(k)tay I. In default of the repre
sentatives and creditors to administer to the estate of an 
intestate, the officer entitled to grant letters of adminis
tration may grant to such person as he approves, letters 
to collect the goods of the deceased, which neither make 
him executor nor administrator; his only business being 
to collect the goods and keep them in his safe custody. 2 
Bl.Comm. 505. 
Letters close. In English law, close letters are grants of 
the King, or instructions by the King, and, being of 
private concern, they are thus distinguished from letters 
patent. Also refers to certain Chancery Letters from 
the Close Rolls which have in part been indexed and 
dated. 
Letters of absolution. Absolvatory letters, used in for
mer times, when an abbot released any of his brethren 
ab omnia subjectione et obedientia, etc., and made them 
capable of entering into some other order of religion. 
Letters of administration. Formal document issued by 
probate court appointing one an administrator of an 
estate. 
Letters of administration C.T.A. Document issued by 
probate court appointing one administrator cum testam
ento annexo (with the will annexed) by reason of the 
failure of the named executor to qualify. 
Letters of administration D.B.N. Document issued by 
probate court appointing one administrator de bonis non 
(concerning goods-not already administered) because of 
failure of named executor to complete the probate of the 
estate. 
Letters of administration D.B.N. C.T.A. Document 
issued by probate court to one who is thereby authorized 
to administer estate in place of named executor in 
accordance with will of testator. See Letters of Adminis
tration C.T.A.; Letters of Admin istration D.S.N. 
Letters of guardianship. A commission placing ward's 
property in the care of officer of court as custodian. 
Walker v. Graves, 174 Tenn. 336, 125 S.W.2d 154, 157. 
Letters of safe conduct. No subject of a nation at war 
with England can, by the law of nations, come into the 
realm, nor can travel himself upon the high seas, or 
send his goods and merchandise from one place to anoth
er, without danger of being seized, unless he has letters 
of safe conduct. By divers old statutes these must be 
granted under the great seal, and enrolled in chancery, 
or else are of no effect; the sovereign being the best 
judge of such emergencies as may deserve exemption 
from the general law of arms. But passports or licenses 
from the ambassadors abroad are now more usually 
obtained, and are allowed to be of equal validity. 
Letters of slains, or slanes. In England, letters sub
scribed by the relatives of a person who had been slain, 
declaring that they had received an assythment, and 
concurring in an application to the crown for a pardon 
LETTRES DE CACHET 
to the offender. These or other evidences of their con
currence were necessary to found the application. 
Letters patent Ilet::lrz peyt::lntl"pel!t° I. An instrument 
issued by a government to the patentee, granting or 
confirming a right to the exclusive possession and enjoy
ment of land, or of a new invention or discovery. See 
also Land patent; Patent. 
Letters rogatory Ilet::lrz rog::lt(::l)riy/. A request by one 
court of another court in an independent jurisdiction, 
that a witness be examined upon interrogatories sent 
with the request. The medium whereby one country, 
speaking through one of its courts, requests another 
country, acting through its own courts and by methods 
of court procedure peculiar thereto and entirely within 
the latter's control, to assist the administration of jus
tice in the former country. The Signe, D.C.La., 37 
F.Supp. 819, 820. 
A formal communication in writing, sent by a court in 
which an action is pending to a court or judge of a 
foreign country, requesting that the testimony of a wit
ness resident within the jurisdiction of the latter court 
may be there formally taken under its direction and 
transmitted to the first court for use in the pending 
action. Fed.R. Civil P. 28; 28 U.S.C.A. §§ 1781, 1782. 
This process was also in use, at an early period, 
between the several states of the Union. The request 
rests entirely upon the comity of courts towards each 
other. 
Letters testamentary. The formal instrument of au
thority and appointment given to an executor by the 
proper court, empowering him to enter upon the dis
charge of his office as executor. It corresponds to letters 
of administration granted to an administrator. 
Letter stock. Stock not registered under the Securities 
Act of 1933, where the buyer gives the seller a letter 
stating the buyer intends to hold for investment pur
poses and does not contemplate reoffering the stock to 
others. Securities and Exchange Commission v. Conti
nental Tobacco Co. of S.C., C.A.Fla., 463 F.2d 137, 150. 
Letting. Leasing or awarding. City and County of San 
Francisco v. United States, C.C.A.Cal., 106 F.2d 569, 576. 
See also Lease; Let. 
Letting out. The act of leasing property or awarding a 
contract. See Let. 
Lettre Iletr::l/. Fr. In French law, a letter. It is used, 
like our English "letter," for a formal instrument giving 
authority. 
Lettres de cachet Iletr::l d::l kitshey I. Letters issued and 
signed by the kings of France, and countersigned by a 
secretary of state, authorizing the imprisonment of a 
person. Under them, persons were imprisoned for life 
or for a long period on the most frivolous pretexts, for 
the gratification of private pique or revenge, and with
out any reason being assigned for such punishment. 
They were also granted by the king for the purpose of 
shielding his favorites or their friends from the conse
quences of their crimes; and thus were as pernicious in 
their operation as the protection afforded by the church

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LETTRES DE CACHET 
to criminals in a former age. Abolished during the 
Revolution of 1789. 
Leuca II(y)uwk�/. In old French law. A league, consist
ing of fifteen hundred paces. 
In old English law, a league or mile of a thousand 
paces. A privileged space around a monastery of a 
league or mile in circuit. 
Levandre navis causa Il�vrendiy neyv�s koz�/. Lat. 
For the sake of lightening the ship; denotes a purpose of 
throwing overboard goods, which renders them subjects 
of general average. 
Levant et couchant Ilev�nt ey kawch�ntl. L. Fr. Ris
ing up and lying down. A term applied to trespassing 
cattle which have remained long enough upon land to 
have lain down to rest and risen up to feed; generally 
the space of a night and a day, or, at least, one night. 
Levari facias Ibveray feys(h)(i)y�s/. Lat. A writ of 
execution directing the sheriff to cause to be made of the 
lands and chattels of the judgment debtor the sum 
recovered by the judgment. Also a writ to the bishop of 
the diocese, commanding him to enter into the benefice 
of a judgment debtor, and take and sequester the same 
into his possession, and hold the same until he shall 
have levied the amount of the judgment out of the rents, 
tithes, and profits thereof. 
Levari facias damna de disseisitoribus Ibveray 
feys(h)(i)y�s dremn� diy d�siyz�tor�b�s/. A writ formerly 
directed to the sheriff for the levying of damages, which 
a disseisor had been condemned to pay to the disseisee. 
Levari facias quando vicecomes returnavit quod non 
habuit emptores Il�veray feys(h)(i)y�s kwondow 
vaysiykowmiyz r�t�rneyv�t kwod non hrebyuw�t 
em(p)toriyz/. An old writ commanding the sheriff to 
sell the goods of a debtor which he had already taken, 
and had returned that he could not sell them; and as 
much more of the debtor's goods as would satisfy the 
whole debt. 
Levari facias residuum debiti Il�veray feys(h)(i)y�s 
r�sidyuw�m deb�tay I. An old writ directed to the sher
iff for levying the remnant of a partly-satisfied debt 
upon the lands and tenements or chattels of the debtor. 
Levato velo Il�veytow viylow I. Lat. An expression 
used in the Roman law, and applied to the trial of wreck 
and salvage. Commentators disagree about the origin of 
the expression; but all agree that its general meaning is 
that these causes were to be heard summarily. The 
most probable solution is that it refers to the place 
where causes were heard. A sail was spread before the 
door and officers employed to keep strangers from the 
tribunal. When these causes were heard, this sail was 
raised, and suitors came directly to the court, and their 
causes were heard immediately. As applied to maritime 
courts, its meaning is that causes should be heard with
out delay. These causes require dispatch, and a delay 
amounts practically to a denial of justice. 
Levee Ileviy I. An embankment or artificial mound of 
earth constructed along the margin of a river, to confine 
906 
the stream to its natural channel or prevent inundation 
or overflow. Also, a landing place on a river or lake; a 
place on a river or other navigable water for lading and 
unlading goods and for the reception and discharge of 
passengers to and from vessels lying in the contiguous 
waters, which may be either a wharf or pier or the 
natural bank. 
Levee district. A municipal subdivision of a state 
(which may or may not be a public corporation) orga
nized for the purpose, and charged with the duty, of 
constructing and maintaining such levees within its 
territorial limits as are to be built and kept up at public 
expense and for the general public benefit. 
Level rate, legal reserve policy. Insurance which 
seeks to build up a reserve which will equal face value of 
policy at the end of insured's life. 
Leverage. The ability to finance an investment with a 
small amount of one's own funds, such as a down pay
ment, with the balance consisting of borrowed funds. 
The use of a smaller investment to generate a larger 
rate of return through borrowing. 
The amount of money borrowed by party in business 
in excess of money or assets invested personally in the 
business. Community Bank v. Jones, 278 Or. 647, 566 
P.2d 470, 475. Term refers to the advantages that may 
accrue to a business through the use of debt obtained 
from third persons (e.g. banks or outside investors) in 
lieu of contributed capital. Such debt improves the 
earnings allocable to contributed capital if the business 
earns more on each dollar invested than the interest 
cost of borrowing funds. 
The effect on common stockholders of the require
ments to pay bond interest and preferred stock divi
dends before payment of common stock dividends. 
Leveraged buyout. Method of purchasing outstanding 
stock of publicly held corporation by management or 
outside investors, with financing consisting primarily of 
funds borrowed from investment bankers or brokers. 
The initial and subsequent long term capital used for 
the buyout is usually secured by the target company's 
assets with repayment generated from the company's 
retained or future earnings, sales of certain of its assets, 
and the like. For a type of employee buyout method, see 
Employee Stock Ownership Plan. See also Going private. 
Leveraged lease. A type of financial lease in which the 
lessor borrows a high percentage of the cost of the leased 
asset on a nonrecourse basis from lenders. This is also 
sometimes called a third-party equity lease or a tax 
lease. 
Leviable Ileviy�b�l/. That which may be levied. That 
which is a proper or permissible subject for a levy; as, a 
"leviable interest" in land. 
Levir Iliyv�r/lev�r/. In Roman law, a husband's broth
er; a wife's brother-in-law. 
Levis lliyv�s/. Lat. Light; slight; trifling. Levis cul
pa, slight fault or neglect. Levissima culpa, the slight
est neglect. Levis nota, a slight mark or brand.

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Levitical degrees /bvit;)k;)l d;)griyz/. Degrees of kin
dred within which persons are prohibited to marry. 
They are set forth in the eighteenth chapter of Leviti
cus. 
Levy, v. To assess; raise; execute; exact; tax; collect; 
gather; take up; seize. Thus, to levy (assess, exact, 
raise, or collect) a tax; to levy (raise or set up) a 
nuisance; to levy (acknowledge) a fine; to levy (inau
gurate) war; to levy an execution, i.e., to levy or collect 
a sum of money on an execution. 
Levy, n. A seizure. The obtaining of money by legal 
process through seizure and sale of property; the raising 
of the money for which an execution has been issued. 
The process whereby a sheriff or other state official 
empowered by writ or other judicial directive actually 
seizes, or otherwise brings within her control, a judg
ment debtor's property which is taken to secure or 
satisfy the judgment. 
In reference to taxation, the word may mean the 
legislative function and declaration of the subject and 
rate or amount of taxation, People v. Mahoney, 13 
CaL2d 729, 91 P.2d 1029; or the rate of taxation rather 
than the physical act of applying the rate to the proper
ty, Lowden v. Texas County Excise Board, 187 OkL 365, 
103 P.2d 98, 100; or the formal order, by proper authori
ty declaring property subject to taxation at fixed rate at 
its assessed valuation, State v. Davis, 335 Mo. 159, 73 
S.W.2d 406, 407; or the ministerial function of assessing, 
listing and extending taxes, City of Plankinton v. Kief
fer, 70 S.D. 329, 17 N.W.2d 494, 495, 496; or the exten
sion of the tax, Day v. Inland Steel Co., 185 Minn. 53, 
239 N.W. 776, 777; or the doing of whatever is necessary 
in order to authorize the collector to collect the tax, 
Syracuse Trust Co. v. Board of Sup'rs of Oneida County, 
13 N.Y.S.2d 390, 394. When used in connection with 
authority to tax, denotes exercise of legislative function, 
whether state or local, determining that a tax shall be 
imposed and fixing amount, purpose and subject of the 
exaction. Carkonen v. Williams, 76 Wash.2d 617, 458 
P.2d 280, 286. The qualified electors "levy" a tax when 
they vote to impose it. 
See also Assess; Assessment; Tax. 
Equitable levy. The lien in equity created by the filing 
of a creditor's bill to subject real property of the debtor, 
and of a lis pendens, is sometimes so called. The right 
to an equitable lien is sometimes called an "equitable 
levy." 
Levy court. A court formerly existing in the District of 
Columbia. It was a body charged with the administra
tion of the ministerial and financial duties of Washing
ton county. It was charged with the duty of laying out 
and repairing roads, building bridges, providing poor
houses, laying and collecting the taxes necessary to 
enable it to discharge these and other duties, and to pay 
the other expenses of the county. It had capacity to 
make contracts in reference to any of these matters, and 
to raise money to meet such contracts. It had perpetual 
succession, and its functions were those which, in the 
several states, are performed by "county commission-
LEX 
ers," "overseers of the poor," "county supervisors," and 
similar bodies with other designations. Levy Court v. 
Coroner, 69 U.S. 501 (2 WalL) 507, 17 L.Ed. 851. 
Levying war. In criminal law, the assembling of a body 
of men for the purpose of effecting by force a treasona
ble object; and all who perform any part, however 
minute, or however remote from the scene of action, and 
who are leagued in the general conspiracy, are con
sidered as engaged in levying war, within the meaning 
of the constitution. Art. III, § 3, U.S. Constitution. See 
also In surrection 
The words include forcible opposition, as the result of 
a combination of individuals, to the execution of any 
public law of the United States; and to constitute trea
son within the Federal Constitution, there must be a 
combination of individuals united for the common pur
pose of forcibly preventing the execution of some public 
law and the actual or threatened use of force by the 
combination to prevent its execution. Kegerreis v. Van 
Zile, 180 App.Div. 414, 167 N.Y.S. 874, 876. 
Lewd /l(y)uwd/. Obscene, lustful, indecent, lascivious, 
lecherous. The term imports a lascivious intent. It 
signifies that form of immorality which has relation to 
moral impurity, United States v. Barlow, D.C. Utah, 56 
F.Supp. 795-797; or that which is carried on in a wan
ton manner. Rebhuhn v. Cahill, D.C.N.Y., 31 F.Supp. 
47, 49. Given to unlawful indulgence of lust, eager for 
sexual indulgence. State v. Jones, 2 Conn.Cir. 698, 205 
A.2d 507, 509. See also In decent (Inde cent exposure); 
Lascivious; Lewdness; Obscene; Obscenity. 
Lewd and lascivious cohabitation. Within criminal 
statutes, the living together of a man and woman not 
married to each other as husband and wife. Also called 
"illicit cohabitation". Where existing, such statutes are 
seldom enforced. See also Lewdness. 
Lewd house. See Bawdy-house 
Lewdness. Gross and wanton indecency in sexual rela
tions so notorious as to tend to corrupt community's 
morals. Hensley v. City of Norfolk, 218 N.E.2d 735, 740, 
216 Va. 369. Licentiousness; that form of immorality 
which has relation to sexual impurity. Moral turpitude. 
Lane ex reL Cronin v. Tillinghast, C.C.A.Mass., 38 F.2d 
231, 232. Open and public indecency. State v. Brenner, 
132 N.J.L. 607, 41 A.2d 532, 534, 535. Sensuality; de
bauchery. 
Any act which the actor knows is likely to be observed 
by others who would be affronted or alarmed and hence 
it is a criminal offense. Model Penal Code, § 251 .1. 
Lewdness is specifically made an offense under some 
state statutes, and is included under more general claus
es in others. 
See also Indecent (Inde cent exposure); Lascivious; Ob
scene; Obscenity. 
Lewd person. One who is lawless, bad, vicious, un
chaste, indecent, obscene, lascivious. State v. Harlowe, 
174 Wash. 227, 24 P.2d 601. 
Lex /leks/. Lat. In medieval jurisprudence, a body or 
collection of various laws peculiar to a given nation or

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LEX 
people; not a code in the modern sense, but an aggrega
tion or collection of laws not codified or systematized. 
Also, a similar collection of laws relating to a general 
subject, and not peculiar to any one people. 
In modern American and English jurisprudence, a 
system or body of laws, written or unwritten, or so much 
thereof as may be applicable to a particular case or 
question, considered as being local or peculiar to a given 
state, country, or jurisdiction, or as being different from 
the laws or rules relating to the same subject-matter 
which prevail in some other place. 
In old English law, a body or collection of laws, and 
particularly the Roman or civil law. Also a form or 
mode of trial or process of law, as the ordeal or battel, or 
the oath of a party with compurgators, as in the phrases 
legem fa cere, legem vadiare, etc. Also used in the sense 
of legal rights or civil rights or the protection of the law, 
as in the phrase legem amittere. 
In Roman law, a law; the law. 
This term was often used as the synonym of jus, in the 
sense of a rule of civil conduct authoritatively prescribed 
for the government of the actions of the members of an 
organized jural society. 
Lex is used in a purely juridical sense, law, and not 
also right; while jus has an ethical as well as a juridical 
meaning, not only law, but right. Lex is usually con
crete, while jus is abstract. In English we have no term 
which combines the legal and ethical meanings, as do 
jus and its French equivalent, droit. 
In a more limited and particular sense, it was a 
resolution adopted by the whole Roman "populus " (pa
tricians and plebeians) in the comitia, on the motion of a 
magistrate of senatorial rank, as a consul, a prretor, or a 
dictator. Such a statute frequently took the name of 
the proposer; as the lex Falcidia, lex Cornelia, etc. 
A rule of law which magistrates and people had 
agreed upon by means of a solemn declaration of consen
sus. 
In a somewhat wider and more generic sense, a law 
(whatever its origin) or the aggregate of laws, relating to 
a particular subject-matter, thus corresponding to the 
meaning of the word "law" in some modern phrases, 
such as the "law of evidence," "law of wills," etc. 
Other specific meanings of the word in Roman juris
prudence were as follows: Positive law, as opposed to 
natural. That system of law which descended from the 
Twelve Tables, and formed the basis of all the Roman 
law. The terms of a private covenant; the condition of 
an obligation. A form of words prescribed to be used 
upon particular occasions. 
Lex actus /leks rekt;)s/. In conflicts, the law of the 
transaction; this governs in choice of law situation. 
Lex lEbutia /leks ;)byuwsh(iy);)/. A statute which intro
duced and authorized new and more simple methods of 
instituting actions at law. 
Lex requitate gaudet /leks iykw;)teytiy god;)t/. Law 
delights in equity. 
908 
Lex requitate gaudet; appetit perfectum; est norma 
recti /leks iykw;)teytiy g6d;)t, �ped�t p�rfekt�m, est 
norm;) rektay /. The law delights in equity; it covets 
perfection; it is a rule of right. 
Lex aliquando sequitur requitatem /leks rel;)kwrendow 
siykw;)t;)r iykw�teyt;)m/. Law sometimes follows equity. 
Lex amissa /leks �mis;)/. One who is an inf amous, 
perjured, or outlawed person. 
Lex Anastasiana /leks ren�strezhiyeyn�/. The law ad
mitting as agnati the children of emancipated brothers 
and sisters. A law which provided that a third person 
who purchased a claim or debt for less than its true or 
nominal value should not be permitted to recover from 
the debtor more than the price paid with lawful interest. 
Lex Anglire /leks re1Jgliyiy /. The law of England. The 
common law; or, the curtesy of England. 
Lex Anglire est lex misericordire /leks re1Jgliyiy est leks 
miz;)r�k6rdiyiy/. The law of England is a law of mercy. 
Lex Anglire non patitur absurdum /leks re1Jgliyiy non 
pret�t;)r ;)bs;}rd�m/. The law of England does not suffer 
an absurdity. 
Lex Anglire nunquam matris sed semper patris condi
tionem imitari partum judicat /leks re1Jgliyiy 
n;}1Jkw;)m meytr�s sed semp�r pretr�s bndishiyown�m 
im;)teray part;)m juwd;)k;)t/. The law of England rules 
that the offspring shall always follow the condition of 
the father, never that of the mother. 
Lex Anglire nunquam sine parliamento mutari potest 
/leks re1Jgliyiy n;}1Jkw�m sayniy parlCy);)mentow 
myuwteray powt�st/. The law of England cannot be 
changed but by parliament. 
Lex apostata /leks rep;)steyt�/. A thing contrary to law. 
Lex apparens /leks �prer�nz/. In old English and Nor
man law, apparent or manifest law. A term used to 
denote the trial by battel or duel, and the trial by 
ordeal, "lex" having the sense of process of law. Called 
"apparent" because the plaintiff was obliged to make his 
right clear by the testimony of witnesses, before he could 
obtain an order from the court to summon the defen
dant. 
Lex Apuleja, or Apuleia /leks repy�liy;)/. A law giving 
to one of several joint sureties or guarantors, who had 
paid more than his proportion of the debt secured, a 
right of action for reimbursement against his co-sureties 
as if a partnership existed between them. 
Lex Aquilia /leks ;)kwiliy;)/. The Aquilian law; a cele
brated law passed on the proposition of the tribune C. 
Aquilius Gallus, A.U.c. 672, superseding the earlier 
portions of the Twelve Tables, and regulating the com
pensation to be made for that kind of damage called 
"injurious," in the cases of killing or wounding the slave 
or beast of another. 
Lex Atilia /leks ;)tiliy;)/. The Atilian law. A law of 
Rome proposed by the tribune L. Atilius Regulus, A. U .C. 
443, which conferred upon the magistrate the right of

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909 
appointing guardians. It applied only to the city of 
Rome. 
Lex AtiDia /leks ;)tiniy;)/. The Atinian law. A law 
declaring that the property in things stolen should not 
be acquired by prescription (usucapione). 
Lex baiuvariorum, (baioriorum, or boiorum) /leks be
y;)veriyor;)mrbey(oriy)or;)m/. The law of the Bavarians, 
a barbarous nation of Europe, first collected (together 
with the law of the Franks and Alemanni) by Theodoric 
I, and finally completed and promulgated by Dagobert. 
Lex barbara /leks barb;)r;)/. The barbarian law. The 
laws of those nations that were not subject to the Roman 
empire were so called. 
Lex beneficialis rei consimili remedium prrestat /leks 
ben;)fis(h)iyeyl;:)s riyay k;:)nsim;)lay r;:)miyd(i)y;:)m 
priyst;:)t/. A beneficial law affords a remedy for a sim
ilar case. 
Lex brehonia /leks br;:)hown(i)y;:)/. The Brehon or Irish 
law, overthrown by King John. 
Lex bretoise /leks bretoyz/. The law of the ancient 
Britons, or Marches of Wales. 
Lex burgundionum /leks b;:)rg�ndiyor;:)m/. The law of 
the Burgundians, a barbarous nation of Europe, first 
compiled and published by Gundebald, one of the last of 
their kings, about A.D. 500. 
Lex Calpurnia /leks krelp�rn(i)y;:)/. A law relating to 
the form and prosecution of actions for the recovery of 
specific chattels other than money. The law which 
extended the scope of the action allowed by the lex Silia 
to all obligations for any certain definite thing. 
Lex Canuleia /leks krenyuwlay;:)/. The law which con
ferred upon the plebeians the connubium, or the right of 
intermarriage with Roman citizens. 
Lex celebrationis. In conflicts, the law of the place 
where a marriage was celebrated will govern in most 
cases when the court is determining the validity of the 
marriage. Restatement of Conflicts, Second, § 283(2). 
Lex Cincia /leks sinsh(iy);:)/. A law which prohibited 
certain kinds of gifts and all gifts or donations of proper
ty beyond a certain measure, except in the case of near 
kinsmen. 
Lex citius tolerare vult privatum damnum quam pu
blicum malum /leks sish(iy);:)s tol;:)reriy v�lt pr;:)veyt;:)m 
dremn;:)m kwod p�bl;:)bm mrebm/. The law will more 
readily tolerate a private loss than a public evil. 
Lex Claudia /leks klod(i)y;:)/. A law which abolished the 
ancient guardianship of adult women by their male 
agnate relations. 
Lex comitatus /leks kom;:)teyt;:)s/. The law of the coun
ty, or that administered in the county court before the 
earl or his deputy. 
Lex commercii. The law of business transactions or 
commerce. 
Lex communis Ileks k;:)myuwn;:)s/. The common law. 
See Jus commune. 
LEX. DE RESPONSIS PRUDENTUM 
Lex contractus /leks k;)ntrrekt;)s/. In conflicts, the law 
of the place where the contract was formed, though the 
term today has undergone changes from the time that 
substantive questions of law were decided by the law of 
the place of the making while procedural questions were 
decided by the law of the forum. 
Lex contra id quod prresumit, probationem non re
cipit /leks kontr;:) id kwod pr;:)z(y)uwm;:)t 
pr;:)beyshiyown;:)m non res;:)p;:)t/. The law admits no 
proof against that which it presumes. 
Lex Cornelia /leks korniyl(i)y;:)/. The Cornelian law; a 
law passed by the dictator L. Cornelius Sylla, providing 
remedies for certain injuries, as for battery, forcible 
entry of another's house, etc. 
Lex Cornelia de redictis /leks korniyl(i)y;:) diy ;:)dikt;:)s/. 
The law forbidding a prretor to depart during his term of 
office from the edict he had promulgated at its com
mencement. 
Lex Cornelia de falso (or falsis) /leks korniyl(i)y;:) diy 
folsow/ ofals;:)s/. The Cornelian law respecting forgery or 
counterfeiting. Passed by the dictator Sylla. The law 
which provided that the same penalty should attach to 
the forgery of a testament of a person dying in captivity 
as to that of a testament made by a person dying in his 
own country. 
Lex Cornelia de lDJuriis /leks korniyl(i)y;:) diy 
;:)njuriy;:)s/ . The law providing a civil action for the 
recovery of a penalty in certain cases of bodily injury. 
Lex Cornelia de sicariis et veneficis /leks korniyl(i)y;:) 
diy s;:)keriy;:)s et v;:)niyf;:)s;:)s/. The Cornelian law respect
ing assassins and poisoners, passed by the dictator Sylla, 
and containing provisions against other deeds of vio
lence. It made the killing of the slave of another person 
punishable by death or exile, and the provisions of this 
law were extended by the Emperor Antoninus Pius to 
the case of a master killing his own slave. 
Lex Cornelia de sponsu /leks korniyl(i)y;:) diy span
s(y)uw/. A law prohibiting one from binding himself for 
the same debtor to the same creditor in the same year 
for more than a specified amount. 
Lex Danorum /leks d;:)nar;:)m/. The law of the Danes; 
Dane-law or Dane-lage. 
Lex deficere non potest in justitia exhibenda /leks 
d;:)fis;)riy non pawt;:)st in j;:)stish(iy);) egz;:)bend;:)/. The law 
cannot be defective [or ought not to fail] in dispensing 
justice. 
Lex de futuro, judex de prreterito /leks diy f(y);:)tyurow, 
juwdeks diy pr;:)ter;:)tow /. The law provides for the fu
ture, the judge for the past. 
Lex deraisnia /leks d;:)rey(z)n(i)y;:)/. The proof of a thing 
which one denies to be done by him, where another 
affirms it; defeating the assertion of his adversary, and 
showing it to be against reason or probability. This was 
used among the old Romans, as well as the Normans. 
Lex de responsis prudentum /leks diy r;:)spons;:)s 
pr;:)dent;:)m/. The law of citations.

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LEX DILATIONES SEMPER EXHORRET 
Lex dilationes semper exhorret Ileks d�leyshiy6wniyz 
semp�r egz6hr�t/. The law always abhors delays. 
Lex domicilii !leks dom�siliyay I. The law of the domi
cile. In conflicts, the law of one's domicile applied in 
choice of law questions. 
Lex est ab reterno !leks est reb �t�rnow I. Law is from 
everlasting. A strong expression to denote the remote 
antiquity of the law. 
Lex est dictamen rationis Ileks est dikt�m�n rey
shiy6wn�sl . Law is the dictate of reason. The common 
law will judge according to the law of nature and the 
public good. 
Lex est norma recti Ileks est n6rm� rektay I. Law is a 
rule of right. 
Lex est ratio summa, qure jubet qure sunt utilia et 
necessaria, et contraria prohibet Ileks est reysh(iy)ow 
s�m� kwiy juwb�t kwiy s;}nt yuwtil(i)y� et k�ntreriy� 
pr6w(h)�b�tI. Law is the perfection of reason, which 
commands what is useful and necessary, and forbids the 
contrary. 
Lex est sanctio sancta, jubens honesta, et prohibens 
contraria Ileks est sreIJ(k)sh(iy)ow sreIJ(k)t�, juw
b�nz �nest� et pr6w(h)�benz k�ntreriy�/. Law is a sa
cred sanction, commanding what is right, and prohibit
ing the contrary. 
Lex est tutissima cassis; sub clypeo legis nemo deci
pitur !leks est t(y)uwtis�m� kres�s; s;}b klipiyow liyj�s 
niymow d�sip�t�r/. Law is the safest helmet; under the 
shield of the law no one is deceived. 
Lex et consuetudo parliamenti Ileks et konsw�t(y)uw
dow parl(y)�mentay/. The law and custom (or usage) of 
parliament. The houses of parliament constitute a 
court not only of legislation, but also of justice, and have 
their own rules, by which the court itself and the suitors 
therein are governed. 
Lex et consuetudo regni !leks et konsw�t(y)uwdow reg
nay I. The law and custom of the realm. One of the 
names of the common law. It was bad pleading to apply 
the term to law made by a statute. 
Lex fabia de plagiariis Ileks feybiy� diy plrejiyeriy�s/. 
The law providing for the infliction of capital punish
ment in certain cases. 
Lex falcidia !leks folsidiy�/. See Falcidian law. 
Lex favet doti Ileks feyv�t d6wtay I. The law favors 
dower. 
Lex fingit ubi subsistit requitas Ileks finj�t yuwbay 
s�bsist�t iykw�tres/. The law makes use of a fiction 
where equity subsists. 
Lex fori Ileks f6ray I. The law of the forum, or court; 
that is, the positive law of the state, country, or jurisdic
tion of whose judicial system the court where the suit is 
brought or remedy sought is an integral part. Substan
tive rights are determined by the law of the place where 
the action arose, "lex loci," while the procedural rights 
are governed by the law of the place of the form, "lex 
910 
forL" Mitchell v. Mitchell, La.App. 5 Cir., 483 So.2d 
1152, 1154. See Lex loci contractus. 
Lex Francorum Ileks frreIJk6r�m/. The law of the 
Franks, promulgated by Theodoric I, son of Clovis I, at 
the same time with the law of the Alemanni and Bavari
ans. This was a different collection from the Salie law. 
Lex Frisionum Ileks friz(h)(i)y6wn�m/. The law of the 
Frisians, promulgated about the middle of the eighth 
century. 
Lex Furia Caninia Ileks fyuriy� k�niniy�/. The Furian 
Caninian law. A law passed in the consulship of P. 
Furius Camillus and C. Caninius Gallus, A.U.C. 752, 
prohibiting masters from manumitting by will more 
than a certain number or proportion of their slaves. 
This law was abrogated by Justinian. 
Lex Furia testamentaria Ileks fyUriy� test�menteriy�/. 
A law enacting that a testator might not bequeath as a 
legacy more than one thousand asses. 
Lex Gabinia Ileks g�biniy�/. A law introducing the 
ballot in elections. 
Lex Genucia Ileks j�n(y)uws(h)(i)y�/. A law which en
tirely forbade the charging or taking of interest for the 
use of money among Roman citizens, but which was 
usually and easily evaded, as it did not declare an 
agreement for interest to be a nUllity. 
Lex Gothica Ileks g68�k�/. The Gothic law, or law of 
the Goths. First promUlgated in writing A.D. 466. 
Lex Horatia Valeria Ileks h�reysh(iy)� v�liriy�/. A law 
which assured to the tribal assembly its privilege of 
independent existence. See Lex Horatii. 
Lex Horatii Ileks h�reyshiyay I. An important constitu
tional statute, taking its name from the consul who 
secured its enactment, to the effect that all decrees 
passed in the meetings of the plebeians should be laws 
for the whole people; formerly they were binding only 
on the plebeians. 
Lex Hortensia Ileks hortens(h)(i)y�rhortenz(h)(i)y�/. 
The law giving the plebeians a full share in the jus 
publicum and the jus sacrum. 
Lex hostilia de furtis Ileks hostil(i)y� diy f�rt�sl. A 
Roman law, which provided that a prosecution for theft 
might be carried on without the owner's intervention. 
Lex imperatoria Ileks imp�r�t6riy�/. The Imperial or 
Roman law. 
Lex intendit vicinum vicini facta scire Ileks �ntendClt 
v�sayn�m v�saynay frekt� sayriy I. The law intends [or 
presumes] that one neighbor knows what another neigh
bor does. 
Lexis. A computer-assisted legal research service pro
vided by Mead Data Central. LEXIS provides on-line 
access to a database of legal information including feder
al and state caselaw, statutes, and administrative, regu
latory, and secondary materials. 
Lex judieat de rebus neeessario faeiendis quasi re 
ipsa faetia Ileks juwdClk;t diy riyb;s nes;seriyow

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91 1 
fres(h)iyend;s kweysay riy ips; frekt;s/. The law judges 
of things which must necessarily be done as if actually 
done. 
Lex judicialis /leks j;dis(h )iyeyl;s /. An ordeal. 
Lex Julia /leks juwl(i)y;/. Several statutes bore this 
name, being distinguished by the addition of words de
scriptive of their subject matter. 
The "lex Ju lia de adulteriis" related to marriage, 
dower, and kindred subjects. The lex Ju lia de ambitu 
was a law to repress illegal methods of seeking office. 
The lex Ju lia de annona was designed to repress combi
nations for heightening the price of provisions. The 
"lex Ju lia de cessione bonorum " related to bankruptcies. 
The lex Ju lia de majestate inflicted the punishment of 
death on all who attempted anything against the emper
or or state. The lex Julia de maritandis ordinibus 
forbade senators and their children to intermarry with 
freedmen or infames, and freedmen to intermarry in
fames. The lex Ju lia de residuis was a law punishing 
those who gave an incomplete account of public money 
committed to their charge. The lex Ju lia de peculatu 
punished those who had stolen public money or property 
or anything sacred or religious. Magistrates and those 
who had aided them in stealing public money during 
their administration were punished capitally; other per
sons were deported. As to lex Julia et Papia Popprea, 
see Lex Papia Popprea. 
Lex Julia majestatis /leks juwl(i)y;) mrej;)steyt;)s/. The 
Julian law of majesty. A law promulgated by Julius 
Cresar, and again published with additions by Augustus, 
comprehending all the laws before enacted to punish 
transgressors against the state. 
Lex Junia Norbana /leks juwn(i)y;) norbeyn;)/. The law 
conferring legal freedom on all such freedmen as were 
tuitione prretoris. See Latini ju niani. 
Lex Junia velleja conferred the same right on post
humous children born in the lifetime of the testator, but 
after the execution of the will, as were enjoyed by those 
born after the death of the testator. 
Lex Junia Velleja /leks juwn(i)y;) v;)liy;)/. A law provid
ing that descendants who became sui heredes of the 
testator otherwise than by birth, as by the death of their 
father, must be disinherited or instituted heirs in the 
same way as posthumous children. 
Lex Kantire /leks krenshiyiy / . The body of customs 
prevailing in Kent during the time of Edward I. A 
written statement of these customs was sanctioned by 
the king's justices in eyre. They were mainly concerned 
with the maintenance of a form of land tenure known as 
gavelkind (q. v.). 
Lex loci /leks 16wsay / . The law of the place. This may 
be of several descriptions but, in general, lex loci is only 
used for lex loci contractus (q.v .). 
The "lex loci" furnishes the standard of conduct, Russ 
v. Atlantic Coast Line R. Co., 220 N.C. 715, 18 S.E.2d 
130, 131; it governs as to all matters going to the basis 
of the right of action itself, State of Maryland, for Use of 
Joynes, v. Coard, 175 Va. 571, 9 S.E.2d 454, 458. The 
LEX NATURALE 
substantive rights of parties to action are governed by 
"lex loci" or law of place where rights were acquired or 
liabilities incurred. Gray v. Blight, C.C.A.Colo., 11 2 
F.2d 696, 699. Compare Lex fori. 
Lex loci actus /leks 16wsay rekt;)s/. The law of the place 
where the act was done. 
Lex loci celebrationis /leks 16wsay sebbreyshiy6wn ;)s/. 
The law of the place where a contract is made. 
Lex loci contractus /leks 16wsay k;)ntrrekt;)s/. Used 
sometimes to denote the law of the place where the 
contract was made, and at other times to denote the law 
by which the contract is to be governed (i.e. place of its 
performance), which may or may not be the same as 
that of the place where it was made. The earlier cases 
do not regard this distinction. Pritchard v. Norton, 106 
U.S. 124, 1 S.Ct. 102, 27 L.Ed. 104; Hayward v. LeBaron, 
4 Fla. 404; Scudder v. Bank, 91 U.S. 406, 23 L.Ed. 245. 
Lex loci delicti /leks 16wsay d;)likt;)s/. The law of the 
place where the crime or wrong took place. The "lex 
loci delicti", or "place of the wrong", is the state where 
the last event necessary to make an actor liable for an 
alleged tort takes place. Sestito v. Knop, C.A.Wis., 297 
F.2d 33, 34. More fully expressed by the words lex loci 
delicti commissi (law of the place where a tort is com
mitted), usually written more briefly as lex loci delicti, 
or, sometimes, simply lex delicti. 
Lex loci domicilii /leks 16wsay dom;)siliyay / . The law 
of the place of domicile. 
Lex loci rei sitre /leks 16wsay riyay saytiy / . The law of 
the place where a thing or subject-matter is situated. 
The title to realty or question of real estate law can be 
affected only by the law of the place where the realty is 
situated. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 
328, 335; United States v. Becktold Co., C.C.A.Mo., 129 
F.2d 473, 477. 
. 
Lex loci solutionis /leks 16wsay s;)I(y)uwshiy6wn;)s/. 
The law of the place of solution; the law of the place 
where payment or performance of a contract is to be 
made. 
Lex longobardorum /leks lreI);)bard6r;)m/. The law of 
the Lombards. The name of an ancient code of laws 
among that people, framed, probably, between the fifth 
and eighth centuries. It continued in force after the 
incorporation of Lombardy into the empire of Charle
magne, and traces of its laws and institutions are said to 
be still discoverable in some parts of Italy. 
Lex manifesta /leks mren;)fest;)/. Manifest or open law; 
the trial by duel or ordeal. 
Lex mercatoria /leks m�rk;)t6riy;)/. The law-merchant; 
commercial law. That system of laws which is adopted 
by all commercial nations, and constitutes a part of the 
law of the land. It is part of the common law. 
Lex naturale /leks nrety;)reyliy/. Natural law. See Jus 
naturale. 
Lex necessitatis est lex temporis; i.e., instantis /leks 
n;)SeS;)teyt;)S est leks temp;)r;)s, id est ;)nstrent;)s/. The

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LEX NEMINI FACIT INJURIAM 
law of necessity is the law of the time; that is, of the 
instant, or present moment. 
Lex neminem cogit ad vana seu inutilia peragenda 
/leks nem:m;}m kowj;}t eM veyn;} s(y)uw in(y)uwtiliy;} 
p;}r;}jend;}/leks niym 0/. The law compels no one to do 
vain or useless things. 
Lex neminem cogit ostendere quod nescire prresumi
tur /leks nem;}n;}m kowj;}t ;}stend;}riy kwod n;}sayriy 
pr;}z(y)um;}t;}r/. The law compels no one to show that 
which he is presumed not to know. 
Lex nemini facit injuriam /leks nem;}nay feys;}t 
;}njuriy;}m/ . The law does injury to no one. 
Lex nemini operatur iniquum /leks nem;}nay op;}reyt;}r 
;}naykw;}m/. The law works injustice to no one. 
Lex nemini operatur iniquum, nemini facit injuriam 
/leks nem;}nay op;}reyt;}r ;}naykw;}m, nem;}nay feys;}t 
;}njuriy;}m/. The law never works an injury, or does a 
wrong. 
Lex nil facit frustra /leks nil feys;}t fr;)str;}/. The law 
does nothing in vain. 
Lex nil facit frustra, nil jubet frustra /leks nil feys;}t 
fr;)str;}, nil juwb;}t fr;)str;}/. The law does nothing and 
commands nothing in vain. 
Lex nil frustra jubet /leks nil fr;)str;} juwb;}t/. The law 
commands nothing vainly. 
Lex non a rege est violanda /leks non ey riyjiy est 
vay;}lrenda/. The law is not to be violated by the king. 
Lex non cogit ad impossibilia /leks non kowj;}t red 
;}mpos;}bil(i)y;}/. The law does not compel the doing of 
impossibilities. 
Lex non curat de minimis /leks non kyur;}t diy 
min;}m;}s/. The law cares not about trifles. The law 
does not regard small matters. 
Lex non deficit in justitia exhibenda /leks non def;}s;}d 
in j;}stish(iy);} egz;}bend;}/. The law does not fail in 
showing justice. 
Lex non exacte definit, sed arbitrio boni viri permit
tit /leks non ;}gzrektiy d;}fayn;}t, sed arbitriyow bownay 
viray p;}rmit;}t/. The law does not define exactly, but 
trusts in the judgment of a good man. 
Lex non favet delicatorum votis /leks non feyv;}t 
debk;}tor;}m vowt;}s/. The law favors not the wishes of 
the dainty. 
Lex non intendit aliquid impossibile /leks non 
;}ntend;}t rel;}kw;}d imposib;}liy/. The law does not intend 
anything impossible. For otherwise the law should not 
be of any effect. 
Lex non patitur fractiones et divisiones statuum 
/leks non peyt;}tar frrekshiowniyz et d;}viz(h)iyowniyz 
stretyuw;}m/. The law does not suffer fractions and 
divisions of estates. 
Lex non prrecipit inutilia, quia inutilis labor stultus 
/leks non preS;}pat inyuwtil(i)ya, kway;} inyU�bs 
912 
leyb;}r st;)1t;}s/. The law commands not useless things, 
because useless labor is foolish. 
Lex non requirit verificari quod apparet curire /leks 
non r;}kwir;}t vehr;}f;}keray kwod ;}prer;}t kyuriyiy /. The 
law does not require that to be verified [or proved] which 
is apparent to the court. 
Lex non scripta /leks non skript;}/. The unwritten or 
common law, which includes general and particular 
customs, and particular local laws. 
Lex ordinandi /leks ord;}nrenday /. The same as lex fo ri 
(q.v.). 
Lex Papia Popprea /leks peypiy;} popiy;}/. The Papian 
Popprean law. A law proposed by the consuls Papius 
and Poppreus at the desire of Augustus A.U.C. 762, 
enlarging the Lex Prretoria (q.v.). The law which ex
empted from tutelage women who had three children. 
It is usually considered with the Lex Julia de maritandis 
ordinibus as one law. 
Lex patrire /leks pretriyiy/. National law. 
Lex Petronia /leks p;}trowniy;}/. The law forbidding 
masters to expose their slaves to contests with wild 
beasts. 
Lex Plretoria /leks pl;}toriy;}/. A law designed for the 
protection of minors against frauds and allowing them 
in certain cases to apply for the appointment of a 
guardian. 
Lex plus laudatur quando ratione probatur /leks pl;)s 
lodeyt;}r kwondow reyshiyowniy pr;}beyt;}r /. The law is 
the more praised when it is approved by reason. 
Lex Poetelia /leks p(ow)atiyliy;}/. The law abolishing 
the right of a creditor to sell or kill his debtor. 
Lex Pompeia de parricidiis /leks pompiy;} diy prer;}say 
diy;}s/. The law which inflicted a punishment on one 
who had caused the death of a parent or child. The 
offender was by this law to be sewn up in a sack with a 
dog, a cock, a viper, and an ape, and thrown into the sea 
or a river, so that even in his lifetime he might begin to 
be deprived of the use of the elements; that the air 
might be denied him whilst he lived and the earth when 
he died. 
Lex posterior derogat priori /leks p;}stiriy;}r der;}wg;}t 
priyoray /. A later statute takes away the effect of a 
prior one. But the later statute must either expressly 
repeal, or be manifestly repugnant to, the earlier one. 
Lex prretoria /leks pr;}toriya/. The prretorian law. A 
law by which every freedman who made a will was 
commanded to leave a moiety to his patron. The term 
has been applied to the rules that govern in a court of 
equity. 
Lex prospicit, non respicit /leks pro(w)sp;}S;}t, non 
reSP;}S;}t/. The law looks forward, not backward. 
Lex Publilia /leks pyuwbliliya/. The law providing that 
the plebiscita should bind the whole people. The lex 
Publilia de sponsu allowed sponsores, unless reimbursed 
within six months, to recover from their principal by a 
special actio what they had paid.

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913 
Lex punit mendacium Ileks pyUwn;t m;ndeys(h)
(i)y;m /. The law punishes false hood. 
Lex regia /leks riyjiy;l . The royal or imperial law. A 
law enacted (or supposed or claimed to have been enact
ed) by the Roman people, constituting the emperor a 
source of law, conferring the legislative power upon him, 
and according the force and obligation of law to the 
expression of his mere will or pleasure. 
Lex rei sitre /leks riyay saytiy I. The law of the place of 
situation of the thing. It is said to be an inexact mode 
of expression; lex situs, or lex loci rei sitre are better. 
Lex rejicit superflua, pugnantia, incongrua /leks 
riyj;s;t s;p�rfluw;, p�gmensh(iy);, ilJkolJgruw;l. The 
law rejects superfluous, contradictory, and incongruous 
things. 
Lex reprobat moram /leks r;prowb;t mor;m /. The law 
dislikes delay. 
Lex respicit requitatem Ileks resp;s;d iykw;teyt ;m /. 
The law pays regard to equity. 
Lex Rhodia /leks rowd(i)y;l. See Rhodian laws. 
Lex romana /leks r;meyn; l. See Civil law; Roman law. 
Lex sacramentalis /leks srekr;m;nteyl; s/. Purgation 
by oath. 
Lex Scribonia Ileks skr;bowniy; l. The law abolishing 
the usucapio servitutis. 
Lex scripta /leks skript; l. Written law; law deriving 
its force, not from usage, but from express legislative 
enactment; statute law. 
Lex scripta si cesset, id custodiri oportet quod mori
bus et consuetudine inductum est; et, si qua in re 
hoc defecerit, tunc id quod proximum et consequens 
ei est; et, si id non appareat, tunc jus quo urbs 
romana utitur servari oportet. /leks skript; say 
ses;t, id k�st;dayray ;port;t kwod mor;b;s et 
konsw;tyuwd;niy ind�kt;m est; et say kwey in riy hok 
def;sir;t, t�nk id kwod proks;m;m et kons;kwenz iyay 
est; et, say id non ;preriy;t, t�nk j�s kwow �rbz 
rowmeyn; yuwt;t;r s;rveray ;port;t /. If the written 
law be silent, that which is drawn from manners and 
custom ought to be observed; and, if that is in any 
manner defective, then that which is next and analogous 
to it; and, if that does not appear, then the law which 
Rome uses should be followed. 
Lex semper dabit remedium Ileks semp;r deyb;t 
r;miyd(i)y;m/. The law will always give a remedy. 
Lex semper intendit quod con venit rationi /leks 
semp;r ;ntend;t kwod k;nviyn;t rreshiyownay I. The 
law always intends what is agreeable to reason. 
Lex Sempronia /leks semprowniy; l. The law prevent
ing senators from being judges and allowing the office to 
the knights. 
Lex Silia /leks siliy; l. A law concerning personal ac
tions. 
Lex situs /leks sayt;s /. Modern law Latin for "the law 
of the place where property is situated." The general 
LEY GAGER 
rule is that lands and other immovables are governed by 
the lex situs; i.e., by the law of the country in which 
they are situated. 
Lex solutionis. /leks s; l(y)uwshiyown;s/. The law of 
the place in which a contract is to be performed or 
payment is to be made. 
Lex spectat naturre ordinem /leks spekt;t n;tyuriy 
ord;n;m/. The law regards the order of nature. 
Lex succurrit ignoranti /leks s;k�hr;t ign;rrentay I. 
The law assists the ignorant. 
Lex succurrit minoribus /leks s;k�hr;t m;nor;b ;s /. 
The law aids minors. 
Lex talionis /leks treliyown;s/. The law of retaliation; 
which requires the infliction upon a wrongdoer of the 
same injury which he has caused to another. Expressed 
in the Mosaic law by the formula, "an eye for an eye; a 
tooth for a tooth," etc. In modern international law, the 
term describes the rule by which one state may inflict 
upon the citizens of another state death, imprisonment, 
or other hardship, in retaliation for similar injuries 
imposed upon its own citizens. 
Lex terrre /leks tehriy I. The law of the land. The 
common law, or the due course of the common law; the 
general law of the land. Equivalent to "due process of 
law". In the strictest sense, trial by oath; the privilege 
of making oath. 
Lex uno ore omnes alloquitur /leks yuwnow oriy om
niyz ;lowkw;t;r /. The law addresses all with one [the 
same] mouth or voice. 
Lex validitatis /leks v;lid;tey t;s/. In conflicts, refers to 
presumptions of validity in marriages, contracts, etc. 
Lex vigilantibus, non dormientibus, subvenit /leks 
vij;lrent;b;s non dormiyent;b;s s�bv;n;t I. Law assists 
the wakeful, not the sleeping. 
Lex Voconia Ileks v;kowniy; l. A plebiscitum forbid
ding a legatee to receive more than each heir had. 
Lex Wallensica /leks wolenz; k;l. The Welsh law; the 
law of Wales. 
Lex Wisigothorum /leks viz;g;O or;m /. The law of the 
Visigoths, or Western Goths who settled in Spain; first 
reduced to writing A.D. 466. A revision of these laws 
was made by Egigas. 
Ley /ley/. L. Fr. (A corruption of loi.) Law; the law. 
For example, Termes de la Ley, Terms of the Law. In 
another, and an old technical, sense, ley signifies an 
oath, or the oath with compurgators; as, il tend sa ley 
aiu pleyntiffe. See also Lex. 
In Spanish law, a law; the law; law in the abstract. 
Ley civile /ley s;viyl /. In old English law, the civil or 
Roman law. Otherwise termed "ley escripte," the writ
ten law. See also Civil law. 
Ley gager /ley geyj;r I. Law wager; wager of law; the 
giving of gage or security by a defendant that he would 
make or perfect his law at a certain day.

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LEY GAGER 
An offer to make an oath denying the cause of action 
of the plaintiff, confirmed by compurgators, which oath 
was allowed in certain cases. When it was accom
plished, it was called the "doing of the law," "{esans de 
ley." 
Leze majesty, or lese majesty lliyz mrej;;,stiy/. An 
offense against sovereign power; treason; rebellion. 
L.H.W.C.A. Longshore and Harbor Workers' Compensa
tion Act. 
Liability. The word is a broad legal term. Mayfield v. 
First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn., 137 
F.2d 1013, 1019. It has been referred to as of the most 
comprehensive significance, including almost every 
character of hazard or responsibility, absolute, contin
gent, or likely. It has been defined to mean: all charac
ter of debts and obligations, Public Market Co. of Port
land v. City of Portland, 171 Or. 522, 130 P.2d 624, 643, 
646; amenability or responsibility, Eberhard v. )Etna 
Ins. Co., 134 Misc. 386, 235 N.Y.S. 445, 447; an obli
gation one is bound in law or justice to perform, State ex 
reI. Diederichs v. Board of Trustees of Missoula County 
High School, 91 Mont. 300, 7 P.2d 543, 545; an obli
gation which may or may not ripen into a debt; any 
kind of debt or liability, either absolute or contingent, 
express or implied, Public Market Co. of Portland v. City 
of Portland, 171 Or. 522, 130 P.2d 624, 643, 646; condi
tion of being actually or potentially subject to an obli
gation; condition of being responsible for a possible or 
actual loss, penalty, evil, expense, or burden; condition 
which creates a duty to perform an act immediately or 
in the future, Union Oil Co. of California v. Basalt Rock 
Co., 30 CaI.App.2d 317, 86 P.2d 139, 141; duty to pay 
money or perform some other service, Dehne v. Hillman 
Inv. Co., C.C.A.Pa., 11 0 F.2d 456, 458; duty which must 
at least eventually be performed, Vandegrift v. Riley, 
CaI.Sup., 16 P.2d 734, 736; estate tax, Lyeth v. Hoey, 
C.C.A.N.Y., 11 2 F.2d 4, 6; every kind of legal obligation, 
responsibility, or duty, Mayfield v. First Nat. Bank of 
Chattanooga, Tenn., C.C.A.Tenn., 137 F.2d 1013, 1019; 
fixed liability, Ivester v. State ex reI. Gillum, 183 OkI. 
519, 83 P.2d 193, 196; legal responsibility, Clark v. 
Lowden, D.C.Minn., 43 F.Supp. 261, 263; penalty for 
failure to pay tax when due, State v. Fischl, 94 Mont. 92, 
20 P.2d 1057, 1059; present, current, future, fixed or 
contingent debts, Erickson v. Grande Ronde Lumber Co., 
162 Or. 556, 92 P.2d 170, 174; punishment, Holliman v. 
Cole, 168 OkI. 473, 34 P.2d 597, 599; responsibility for 
torts, Italiani v. Metro-Goldwyn-Mayer Corporation, 45 
CaI.App.2d 464, 11 4 P.2d 370, 372; tax, Thompson v. 
Smith, 189 OkI. 217, 11 4 P.2d 922, 924; that which one 
is under obligation to pay, or for which one is liable, 
Reconstruction Finance Corporation v. Gossett, Tex., 111 
S.W.2d 1066; the state of being bound or obliged in law 
or justice to do, pay, or make good something; the state 
of one who is bound in law and justice to do something 
which may be enforced by action, Fidelity Coal Co. v. 
Diamond, 310 Ill.App. 387, 34 N.E.2d 123; Clark v. 
Lowden, D.C.Minn., 48 F.Supp. 261, 263; unliquidated 
claim. 
914 
All the claims against a corporation. Liabilities in
clude accounts and wages and salaries payable, divi
dends declared payable, accrued taxes payable, fixed or 
long-term liabilities such as mortgage bonds, debentures 
and bank loans. 
See also Current liabilities; Derivative liability; Employ
er's liability acts; Enterprise liability; Legal liability; Liable; 
Limitation of liability acts; Malpractice; No fault; Parental 
liability; Personal liability; Product liability; Several liability; 
Strict liability; Vicarious liability. 
Absolute liability. See Strict liability. 
Accrued liability. Obligation which has been incurred 
but not yet paid; e.g. taxes, rent. 
Children. See Parental liability. 
Contingent liability. A liability not yet fixed but de
pendent on events to occur in the future (e.g. a pending 
law suit). 
Fixed liability. One fixed as to time, amount, etc.; e.g. 
mortgage. 
Joint and several liability. Responsible together and 
individually. The person who has been harmed can sue 
and recover from both wrongdoers or from either one of 
the wrongdoers (if he goes after both of them, he does 
not, however, receive double compensation). See also 
Joint and several liability; Joint tort-feasors. 
Joint liability. Liability for which more than one per
son is responsible. See also Contribution; Joint liability; 
Joint tort-feasors. 
Liability bond. See Bond. 
Primary liability. A liability for which a person is 
directly responsible as contrasted with one which is 
contingent or secondary. 
Secondary liability. A liability in the nature of a conti
gent claim such as the liability of a guarantor as con
trasted with that of a strict surety or comaker. A 
guarantor's liability does not arise until the principal 
debtor has failed to pay the creditor. 
Liability created by statute. One depending for its 
existence on the enactment of a statute, and not on the 
contract of the parties. One which would not exist but 
for the statute. Cannon v. Miller, 22 Wash.2d 227, 155 
P.2d 500, 507, 508. 
Liability for damages. Liability for an amount to be 
ascertained by trial of the facts in particular cases. 
Liability imposed by law. Liability imposed in a defi
nite sum by a final judgment against assured. Girard v. 
Commercial Standard Ins. Co., 66 CaI.App.2d 483, 152 
P.2d 509, 513. Total liability imposed by law upon a 
person. Schwartz v. Merola Bros. Const. Corporation, 
290 N.Y. 145, 48 N.E.2d 299, 303. 
Liability in solido. Liability in solido, whether emanat
ing from tort or contract, means that either of the 
debtors may be required to discharge obligation in full 
at creditor's election. Cunningham v. Hardware Mut. 
Cas. Co., La.App., 228 So.2d 700, 705.

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915 
Liability insurance. Contract by which one party 
promises on consideration to compensate or reimburse 
other if he shall suffer loss from specified cause or to 
guaranty or indemnify or secure him against loss from 
that cause. Fidelity General Ins. Co. v. Nelsen Steel & 
Wire Co., 132 Ill.App.2d 635, 270 N .E.2d 616, 620. That 
type of insurance protection which indemnifies one from 
liability to third persons as contrasted with insurance 
coverage for losses sustained by the insured. See also 
In surance. 
Liability limits. The sum beyond which a liability in
surance company does not protect the insured on a 
particular policy. Most policies covering liability for 
bodily injury have two limits, a limit of liability to any 
one person, and, subject to the personal limit, another 
and usually higher limit for any single accident, where 
more than one person is involved. 
Liable. Bound or obliged in law or equity; responsible; 
chargeable; answerable; compellable to make satisfac
tion, compensation, or restitution. Homan v. Employers 
Reinsurance Corporation, 345 Mo. 650, 136 S.W.2d 289, 
298. Obligated; accountable for or chargeable with. 
Condition of being bound to respond because a wrong 
has occurred. Condition out of which a legal liability 
might arise. Pacific Fire Ins. Co. v. Murdoch Cotton Co., 
193 Ark. 327, 99 S.W.2d 233, 235. Justly or legally 
responsible or answerable. 
Exposed or subject to a given contingency, risk, or 
casualty, which is more or less probable. Exposed, as to 
damage, penalty, expense, burden, or anything unpleas
ant or dangerous. See also Liability. 
Future possible or probable happening which may not 
actually occur, and relates to an occurrence within the 
range of possibility. Pacific Fire Ins. Co. v. Murdoch 
Cotton Co., 193 Ark. 327, 99 S.W.2d 233, 235. In all 
probability. Neely v. Chicago Great Western R. Co., 
Mo.App., 14 S.W.2d 972, 978. See also Contingency; 
Contingent. 
Liable to action. Liable to judgment in given action. 
Haas v. New York Post Graduate Medical School and 
Hospital, 131 Misc. 395, 226 N.Y.S. 617, 620. 
Liable to penalty. Subject to penalty. The Motorboat, 
D.C.N.J., 53 F.2d 239, 24 1. 
Libel Ilayb;}l/. A method of defamation expressed by 
print, writing, pictures, or signs. In its most general 
sense, any publication that is injurious to the reputation 
of another. A false and unprivileged publication in 
writing of defamatory material. Bright v. Los Angeles 
Unified School Dist., 51 Cal.App.3d 852, 124 Cal.Rptr. 
598, 604. A maliciously written or printed publication 
which tends to blacken a person's reputation or to 
expose him to public hatred, contempt, or ridicule, or to 
injure him in his business or profession. Corabi v. 
Curtis Pub. Co., 441 Pa. 432, 273 A.2d 899, 904. 
Accusation in writing or printing against the charac
ter of a person which affects his reputation, in that it 
tends to hold him up to ridicule, contempt, shame, 
disgrace, or obloquy, to degrade him in the estimation of 
the community, to induce an evil opinion of him in the 
LIBEL 
minds of rightthinking persons, to make him an object 
of reproach, to diminish his respectability or abridge his 
comforts, to change his position in society for the worse, 
to dishonor or discredit him in the estimation of the 
public, or his friends and acquaintances, or to deprive 
him of friendly intercourse in society, or cause him to be 
shunned or avoided, or where it is charged that one has 
violated his public duty as a public officer. Almost any 
language which upon its face has a natural tendency to 
injure a man's reputation, either generally or with re
spect to his occupation. Washer v. Bank of America 
Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 136 P.2d 297, 
300. 
States are free to fashion their own law of defamation 
of a private person so long as they do not impose 
liability without fault. Gertz v. Robert Welch, Inc., 418 
U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789. 
There can be no presumption of malice or bad faith 
consistent with freedom of the press under First 
Amend., U.S. Const. if plaintiff is a public figure. Malice 
must be proved on a showing that defendant published 
material either knowing it to be false or recklessly 
without regard as to whether it is true or false. N. Y. 
Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 
686. 
See also Actionable per quod; Actionable per se; Crimi
nal (Criminal libel); Defamation; False implication libel; 
False light privacy; In nocent construction rule; In nuendo; 
Libelous per quod; Libelous per se; Malice; Obscene 
libel; Privilege; Publication; Seditious libel; Single publica
tion rule; Trade libel. Compare Slander. 
Constitutional privilege. Prior to New York Times v. 
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 
(1964), media comment on the conduct of public officials 
or public figures was free from liability for libel only in 
certain limited circumstances, usually difficult to prove 
at trial. If a statement of fact was involved, it had to be 
substantially true; if a comment or opinion was in
volved, it had to be based on true facts which fully and 
fairly justified the comment or opinion. The United 
States Supreme Court, however, in a series of decisions 
beginning with New York Times Co. v. Sullivan, im
posed constitutional limitations on State libel laws, 
based upon the First Amendment guarantees of freedom 
of speech and press. In New York Times, the Supreme 
Court eroded the prior common law libel standard of 
strict liability, holding that misstatements of fact or 
unjustified comments or opinions published by the me
dia about the conduct of public officials were constitu
tionally privileged, unless the false or unjustified mate
rial was published with "actual malice," i.e., with actual 
knowledge of falsity or with reckless disregard of proba
ble falsity. By requiring a public official plaintiff to 
prove actual malice on the part of defendant, the burden 
of proving that the material was false was shifted to 
plaintiff, contrary to the common law rule which pre
sumed falsity. 
Group libel. The holding up of a group to ridicule, scorn 
or contempt to a respectable arid considerable part of

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the community. The plaintiff must prove that he is a 
member of the group. 
Pleadings. Formerly, the initiatory pleading in an ad
miralty action, corresponding to the declaration, bill or 
complaint. Since 1966 the Federal Rules of Civil Proce
dure and Supp. Admiralty Rules have governed admiral
ty actions and as such, admiralty actions are now com
menced by complaint. 
Libelant /layb;;,h:mt/. Formerly, the complainant or par
ty who files a libel in an ecclesiastical or admiralty case, 
corresponding to the plaintiff in actions at law. See 
Libel (Pleadings). 
Libelee Ihiyb;;,liy/. Formerly, a party against whom a 
libel has been filed in an ecclesiastical court or in 
admiralty, corresponding to the defendant in actions at 
law. See Libel (Pleadings). 
Libellus I bbel;;,s I . Lat. In the civil law, a little book. 
Feudal law. An instrument of alienation or convey
ance, as of a fief, or a part of it. 
Libellus supplex. A petition, especially to the emperor, 
all petitions to whom must be in writing. Libellum 
rescribere, to mark on such petition the answer to it. 
Libellum agere, to assist or counsel the emperor in 
regard to such petitions. Libellus accusatorius, an infor
mation and accusation of a crime. Libellus divortii, a 
writing of divorcement. Libellus rerum, an inventory. 
Libellus or oratio consultoria, a message by which em
perors laid matters before the senate. Libellus appella
tori us, an appeal. 
Libellus conventionis Ibbel;;,s k;;,nvenshiyown;;,s/. In 
the civil law, the statement of a plaintiffs claim in a 
petition presented to the magistrate, who directed an 
officer to deliver it to the defendant. 
Libellus famosus Ibbel;;,s f;;,mows;;,s/. In the civil law, a 
defamatory publication; a publication injuriously affect
ing character; a libel. 
Libel of review. New proceeding instituted to attack 
final decree after expiration of term and right to appeal. 
The Astorian, C.C.A.Cal., 57 F.2d 85, 87. 
Libelous /laybl;;,s/. Defamatory; of the nature of a libel; 
constituting or involving libel. See also Libel. 
Libelous per quod Ilaybbs p�r kwod/. Expressions 
"libelous per quod" are such as require that their injuri
ous character or effect be established by allegation and 
proof. They are those expressions which are not action
able upon their face, but which become so by reason of 
the peculiar situation or occasion upon which the words 
are written. Publications which are susceptible of two 
reasonable interpretations, one of which is defamatory 
and the other is not, or publications which are not 
obviously defamatory, but which become so when con
sidered in connection with innuendo, colloquium, and 
explanatory circumstances. Compare Actionable per 
quod. 
Libelous per se Ilaybbs p�r siy I. A publication is 
libelous per se when the words are of such a character 
916 
that an action may be brought upon them without the 
necessity of showing any special damage, the imputation 
being such that the law will presume that any one so 
slandered must have suffered damage. Robinson v. Na
tionwide Ins. Co., 273 N.C. 391, 159 S.E.2d 896, 898. To 
render words "libelous per se," the words must be of 
such character that a presumption of law will arise 
therefrom that the plaintiff has been degraded in the 
estimation of his friends or of the public or has suffered 
some other loss either in his property, character, reputa
tion, or business or in his domestic or social relations. 
When a publication is "libelous per se", that is, defam
atory on its face, it is actionable per se; i.e. one need not 
prove that he received any injury as a result of the 
publication in order to recover damages, and in such a 
case general damages for loss of personal or business 
reputation are recoverable and no averments or proof of 
special damages are necessary. Rosenbloom v. Me
tromedia, Inc., D.C.Pa., 289 F.Supp. 737, 743. Compare 
Actionable per se. 
Liber, adj. Ilayb;;,r/. Lat. Free; open and accessible, as 
applied to courts, places, etc.; of the state or condition of 
a freeman, as applied to persons. Exempt from the 
service or jurisdiction of another. 
Liber, n. /layb;;,r/. Lat. A book, of whatever material 
composed; a main division or unit of a literary or 
professional work. 
Libera llib(;;,)r;;,/. Lat. (Feminine of liber, adj.) Free; at 
liberty; exempt; not subject to toll or charge. 
Libera batella Ilib(;;,)r;;, b;;,tel;;,/. In old records, a free 
boat; the right of having a boat to fish in a certain 
water; a species of free fishery. 
Libera chasea habenda llib(;;,)r;;, cheys(h)(i)y;;, h;;,b€md;;,/. 
In old English law, a judicial writ granted to a person 
for a free chase belonging to his manor after proof made 
by inquiry of a jury that the same of right belongs to 
him. 
Libera eleemosyna llib(;;,)r;;, iyl;;,mos;;,n;;,/. In old English 
law, free alms, frankalmoigne. 
Libera falda Ilib(;;,)r;;, fold;;,/. In old English law, frank 
fold; free fold; free foldage. 
Liberal Ilib(;;,)r;;,l/. Free in giving; generous; not re
strained or narrow-minded; not literal or strict. 
Liberal construction or interpretation /lib(;;,)r;;,l k;;,n
str�ksh;;,nr;;,nt�rpr;;,teysh;;,n/. See Construction. 
Libera lex Ilib(;;,)r;;, leks/. In old English law, free law; 
frank law; the law of the land. The law enjoyed by free 
and lawful men, as distinguished from such men as have 
lost the benefit and protection of the law in consequence 
of crime. Hence this term denoted the status of a man 
who stood guiltless before the law, and was free, in the 
sense of being entitled to its full protection and benefit. 
Amittere liberam legem (to lose one's free law) was to fall 
from that status by crime or infamy. 
Liberam legem amittere /lib;;,ram liyjam amidariy /. To 
lose one's free law (called the villainous judgment), to 
become discredited or disabled as juror and witness, to

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917 
forfeit goods and chattels and lands for life, to have 
those lands wasted, houses razed, trees rooted up, and 
one's body committed to prison. It was anciently pro
nounced against conspirators but is· now disused, the 
punishment substituted being fine and imprisonment. 
Libera piscaria llib(;))r;) p;)skeriy;)I . In old E nglish law, 
a free fishery. 
Liberare llib;)reriy/. Lat. In old English law, to deliv
er, transfer, or hand over. Applied to writs, panels of 
jurors, etc. 
In the civil law, to free or set free; to liberate; to give 
one his liberty. 
Liber assisarum Ilayb;)r ;)sayzer;)m/. The Book · of As
sizes or pleas of the crown. A collection of cases that 
arose on assizes and other trials in the country. It was 
the fourth volume of the reports of the reign of Edward 
III. 
Liberata pecunia non liberat offerentem llib;)reyt;) 
p;)kyuwn(iy);) non lib;)r;)t Of;)rent;)m/. Money being re
stored does not set free the party offering. 
Liberate llib;)reytiy I. In old English practice, an origi
nal writ issuing out of chancery to the treasurer, cham
berlains, and barons of the exchequer, for the payment 
of any annual pension, or other sum. 
A writ issued to a sheriff, for the delivery of any lands 
or goods taken upon forfeits of recognizance. A writ 
issued to a gaoler for the delivery of a prisoner that had 
put in bail for his appearance. A writ which issues on 
lands, tenements, and chattels, being returned under an 
extent on a statute staple, commanding the sheriff to 
deliver them to the plaintiff, by the extent and appraise
ment mentioned in the writ of extent and in the sheriffs 
return thereto. 
To set free, as from bondage, slavery, oppression, or 
enemy control. 
Liberatio llib;)reysh(iy)ow/. In old English law, livery; 
money paid for the delivery or use of a thing. 
Liberation llib;)reysh;)n/. In civil law, the extinguish
ment of a contract, by which he who was bound becomes 
free or liberated. Synonymous with payment. 
Liber authenticorum Ilayb;)r ;)Oent;)kor;)m/. The au
thentic collection of the novels of Justinian, so called to 
distinguish them from the Epitome Juliani. 
Libera warrena llib(;))r;) wohr;)n;)I . In old English law, 
free warren (q.v.). 
Liber bancus Ilayb;)r brel)k;)s/. In old English law, free 
bench. 
Liber et legalis homo Ilayb;)r et l;)geyl;)s howmow I. In 
old English law, a free and lawful man. A term applied 
to a juror, or to one worthy of being a juryman, from the 
earliest period. 
Liber feudorum Ilayb;)r fyuwdor;)m/. See Feudorum 
liber. 
Liber homo Ilayb;)r howmow I. See Homo liber. 
LIBERTI 
Liberi l lib;)ray /. In Saxon law, freemen; the possessors 
of allodial lands. 
In the civil law, children. The term included "grand
children." 
Liber judicialis of Alfred Ilayb;)r j;)dis(h)iyeyl;)s ;)v 
relfr;)d/. Alfred's dome-book. See Dombec, domboc; 
Dome-book. 
Liber judiciarum Ilayb;)r j�dis(h)iyer;)m/. The book of 
judgment, or doom-book. The Saxon Domboc. Conjec
tured to be a book of statutes of ancient Saxon kings. 
Liber niger Ilayb;)r nayj;)r/. Black book or register in 
the exchequer. Chartularies of abbeys, cathedrals, etc. 
A name given to several ancient records. 
Liber niger domus regis Ilayb;)r nayj;)r dowm;)s riyj;)s/. 
The black book of the king's household. 
Liber ruber scaccarii Ilayb;)r ruwb;)r sk;)keriyay I. The 
red book of the exchequer. 
Libertas llib;)rtres/. Lat. Liberty; freedom; a privilege; 
a franchise. 
Libertas ecclesiastica Ilib;)rtres ;)kliyziyrest;)k;)/. 
Church liberty, or ecclesiastical immunity. 
Libertas est naturalis facultas ejus quod cuique fa
cere libet, nisi quod de jure aut vi prohibetur 
llib;)rtres est nrety;)reyl;)s f;)k;)ltres iyj;)s kwod k(yuw)ay
kwiy feys;)riy layb;)t, naysay kwod diy juriy ot vay 
prow(h);)biyt;)r I. Liberty is that natural faculty which 
permits every one to do [or the natural power of doing] 
anything he pleases except that which is restrained by 
law or force. 
Libertas inestimabilis res est Ilib;)rtres inest;)meyb;)l;)s 
riyz est!. Liberty is an inestimable thing; a thing above 
price. 
Libertas non recipit restimationem Ilib;)rtres non 
res;)p;)t est;)meyshiyown;)m/. Freedom does not admit of 
valuation. 
Libertas omnibus rebus favorabilior est Ilib;)rtres 
omn;)b;)s riyb;)s feyv;)r;)biliy;)r est/. Liberty is more fa
vored than all things [anything]. 
Libertates regales ad coronam spectantes ex conces
sione regum a corona exierunt llib;)rteytiyz r;)geyliyz 
red brown;)m spektrentiyz eks k;)nseshiyowniy riyg;)m ey 
k;)rown;) egziyir;)nt/. Royal franchises relating to the 
crown have emanated from the crown by grant of kings. 
Libertatibus allocandis llib;)rteyt;)b;)s rebkrend;)s/. A 
writ lying for a citizen or burgess, impleaded contrary to 
his liberty, to have his privilege allowed. 
Libertatibus exigendis in itinere llib;)rteyt;)b;)s egz;)
jend;)s in aytin;)riy I. An ancient writ whereby the king 
commanded the justices in eyre to admit an attorney for 
the defense of another's liberty. 
Liberti II;)b;)rtay I, libertini llib;)rtaynay I. Lat. In Ro
man law, freedmen. The condition of those who, having 
been slaves, had been made free. There seems to have 
been some difference in the use of these two words; the 
former denoting the manumitted slaves considered in 
their relations with their former master, who was now

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LIBERTI 
called their "patron;" the latter term applying to them 
in their status in the general social economy of Rome 
subsequent to manumission. 
Liberticide Il;}Mrt;}sayd/lib;}ro I. A destroyer of liberty. 
Liberties Ilw;}rtiyz/. Privileged districts exempt from 
the sheriffs jurisdiction; as, "gaol liberties." See Gaol. 
In colonial times, laws, or legal rights resting upon 
them. The early colonial ordinances in Massachusetts 
were termed laws and liberties, and the code of 1641 the 
"Body of Liberties." 
Formerly, political subdivisions of Philadelphia; as, 
Northern Liberties . 
Libertinum ingratum leges civiles in pristinam servi
tutem redigunt; sed leges Anglire semel manumis
sum semper liberum judicant llib;}rbiyn;}m ingreyt;}m 
liyjiyz siv;}liyz in prist;}n;}m S;}rv;}t(y)uwt;}m red;}g;}nt, sed 
liyjiyz reI]gliyiy sem;}l mrenyuwmis;}m semp;}r 1w;}r;}m 
juwd;}krent/. The civil laws reduce an ungrateful freed
man to his original slavery; but the laws of England 
regard a man once manumitted as ever after free. 
Liberty, Freedom from all restraints except such as are 
justly imposed by law. Freedom from restraint, under 
conditions essential to the equal enjoyment of this same 
right by others; freedom regulated by law. The absence 
of arbitrary restraint, not immunity from reasonable 
regulations and prohibitions imposed in the interests of 
the community. Brazo v. Connecticut Real Estate Com
mission, 177 Conn. 515, 418 A.2d 883, 890. 
The "liberty" guaranteed and protected by constitu
tional provisions denotes not only freedom from unau
thorized physical restraint, but embraces also the free
dom of an individual to use and enjoy his faculties in all 
lawful ways, acquire useful knowledge, marry, establish 
a home, and bring up children, worship God according to 
the dictates of his own conscience, live and work where 
he chooses, engage in any of the common and lawful 
occupations of life, enter into all contracts which may be 
proper and essential to carrying out successfully the 
foregoing purposes, and generally to enjoy those privi
leges long recognized at common law as essential to the 
orderly pursuit of happiness by free people. See also 
Liberty in terest, below. 
The "personal liberty" guaranteed by Thirteenth 
Amend., U.S.C onst., consists in the power of locomotion 
without imprisonment or restraint unless by due course 
of law, except those restraints imposed to prevent com
mission of threatened crime or in punishment of crime 
committed, those in punishment of contempts of courts 
or legislative bodies or to render their jurisdiction effec
tual, and those necessary to enforce the duty citizens 
owe in defense of the state to protect community against 
acts of those who by reason of mental infirmity are 
incapable of self-control. Ex parte Hudgins, 86 W.Va. 
526, 103 S.E. 327, 329. 
Also, a franchise or personal privilege, being some 
part of the sovereign power, vested in an individual, 
either by grant or prescription. 
918 
The term is used in the expression, rights, liberties, 
and franchises, as a word of the same general class and 
meaning with those words and privileges. This use of 
the term is said to have been strictly conformable to its 
sense as used in Magna Charta and in English declara
tions of rights, statutes, grants, etc. 
In a derivative sense, the place, district, or boundaries 
within which a special franchise is enjoyed, an immuni
ty claimed, or a jurisdiction exercised. In this sense, the 
term is commonly used in the plural; as the "liberties of 
the city." 
Civil liberty. The liberty of a member of society, being a 
man's natural liberty, so far restrained by human laws 
(and no further) as is necessary and expedient for the 
general advantage of the public. 1 Bl.Comm. 125. The 
power of doing whatever the laws permit. 1 Bl.Comm. 
6. The greatest amount of absolute liberty which can, 
in the nature of things, be equally possessed by every 
citizen in a state. Guaranteed protection against inter
ference with the interests and rights held dear and 
important by large classes of civilized men, or by all the 
members of a state, together with an effectual share in 
the making and administration of the laws, as the best 
apparatus to secure that protection. See Civil rights. 
Liberty in terest. An interest recognized as protected by 
the due process clauses of state and federal constitu
tions. U.S.C.A. Const.Amend. 5, 14. Generally included 
are liberties guaranteed by the first eight amendments 
of the United States Constitution, as well as interests 
created when states either legislatively or administra
tively impose limitations on their discretion and require 
that a specific standard prevail in decision making. 
Adams v. Wainwright, D.C.Fla., 512 F.Supp. 948, 953. 
Liberty of a port. In marine insurance, a license or 
permission incorporated in a marine policy allowing the 
vessel to touch and trade at a designated port other than 
the principal port of destination. 
Liberty of conscience. Liberty for each individual to 
decide for himself what is to him religious. Gobitis v. 
Minersville School Dis t., D.C.Pa., 21 F.Supp. 581, 584. 
See, also, Religious liberty, as defined below. 
Liberty of contract. The ability at will, to make or 
abstain from making, a binding obligation enforced by 
the sanctions at the law. The right to contract about 
one's affairs, including the right to make contracts of 
employment, and to obtain the best terms one can as the 
result of private bargaining. Adkins v. Children's Hos
pital of District of Columbia, 261 U.S. 525, 43 S.Ct. 394, 
396, 67 L.Ed. 785. It includes the corresponding right to 
accept a contract proposed. There is, however, no abso
lute freedom of contract. The government may regulate 
or forbid any contract reasonably calculated to affect 
injuriously public interest. Atlantic Coast Line R. Co. v. 
Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167. 
It means freedom from arbitrary or unreasonable re
straint, not immunity from reasonable regulation to 
safeguard public interest; or the right to make contracts 
with competent persons on a plane of relative parity or 
freedom of choice and within the limits allowed or not

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919 
forbidden by law. McGrew v. Industrial Commission, 96 
Utah 203, 85 P.2d 608, 612. See Art. I, § 10, U.S. 
Constitution. 
Liberty of speech. Freedom accorded by the Constitu
tion (First Amendment of U.S .Const.) or laws to express 
opinions and facts by word of mouth, uncontrolled by 
any censorship or restrictions of government. As used 
in Constitution, "freedom of speech" means freedom of 
speech as it was understood by the common law when 
the Constitution was adopted. State v. Boloff, 138 Or. 
568, 7 P.2d 775, 781. See however Clear and present 
danger doctrine. See also Symbolic speech. 
Liberty of the globe. In marine insurance, a license or 
permission incorporated in a marine policy authorizing 
the vessel to go to any part of the world, instead of being 
confined to a particular port of destination. 
Liberty of the press. The right to print and publish the 
truth, from good motives and for justifiable ends, as 
guaranteed by First Amendment of U.S. Constitution. 
Kline v. Robert M. McBride & Co., 170 Misc. 974, 11 
N.Y.S.2d 674, 679. The right to print without any 
previous license, subject to the consequences of the law. 
The right to publish whatever one may please, Knapp v. 
Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 
981, 985; and to be protected against any responsibility 
for so doing except so far as such publications, from 
their blasphemy, obscenity, or scandalous character, 
may be a public offense, or as by their falsehood and 
malice they may injuriously affect the standing, reputa
tion, or pecuniary interests of individuals. Immunity 
from previous restraints or [from] censorship. Grosjean 
v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 449, 80 
L.Ed. 660; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 
75 L.Ed. 1357. See Censor; Censorship; Prior restraint. 
Liberty to hold pleas. The liberty of having a court of 
one's own. Thus certain lords had the privilege of 
holding pleas within their own manors. 
Natural liberty. The power of acting as one thinks fit, 
without any restraint or control, unless by the law of 
nature. The right which nature gives to all mankind of 
disposing of their persons and property after the man
ner they judge most consistent with their happiness, on 
condition of their acting within the limits of the law of 
nature, and so as not to interfere with an equal exercise 
of the same rights by other men. 1 Bl.Comm. 125. 
Personal liberty. The right or power of locomotion; of 
changing situation, or moving one's person to whatsoev
er place one's own inclination may direct, without im
prisonment or restraint, unless by due course of law. 
Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 42, 27 L.Ed. 835. 
Political liberty. Liberty of the citizen to participate in 
the operations of government, and particularly in the 
making and administration of the laws. 
Religious liberty. Freedom, as guaranteed by First 
Amendment of U.S. Constitution, from constraint, or 
control in matters affecting the conscience, religious 
beliefs, and the practice of religion. Freedom to enter
tain and express any or no system of religious opinions, 
LICENSE 
and to engage in or refrain from any form of religious 
observance or public or private religious worship, not 
inconsistent with the peace and good order of society 
and the general welfare. See also Freedom of religion; 
Religion. 
Liberum corpus nullam. recipit restimationem 
/lib;)r;)m k6rp;)s n;}bm res;)p;)t est;)meyshiy6wn;)m/. 
The body of a freeman does not admit of valuation. 
Liberum est cuique apud se explorare an expediat 
sibi consilium /lib;)r;)m est k(yuw)aykwiy rep;)d siy 
ekspl;)reriy cen ;)kspiydiy;)t sibay k;)nsil(i)y;)m/. Every 
one is free to ascertain for himself whether a recommen
dation is advantageous to his interest. 
Liberum maritagium /lib;)r;)m mcer;)teyj(iy);)m/. In old 
English law, frank-marriage. 
Liberum servitium /lib;)r;)m s;)rvish(iy);)m/. Free ser
vice. Service of a warlike sort by a feudatory tenant; 
sometimes called "servitium liberum armorum. " See 
also Servitium liberum. Service not unbecoming the char
acter of a freeman and a soldier to perform; as to serve 
under the lord in his wars, to pay a sum of money, and 
the like. 2 Bl.Comm. 60. 
Liberum socagium /lib;)r;)m s;)keyj(iy);)m/. In old Eng
lish law, free socage. 
Liberum tenementum /lib;)r;)m ten;)ment;)m/. In com
mon law pleading, a plea of freehold. A plea by the 
defendant in an action of trespass to real property that 
the locus in quo is his freehold, or that of a third person, 
under whom he acted. 
In realty law, freehold. Frank-tenement. 
Liblac /liblcek/. In Saxon law, witchcraft, particularly 
that kind which consisted in the compounding and ad
ministering of drugs and philters. Sometimes occurring 
in the Latinized form liblacum /l;)bleyk;)m/. 
Libra /laybr;)/. In old English law, a pound; also a sum 
of money equal to a pound sterling. 
Libra arsa /laybr;) ars;)/. A pound burned; that is, 
melted, or assayed by melting, to test its purity. Librre 
arsre et pensatre, pounds burned and weighed. A fre
quent expression in Domesday, to denote the purer coin 
in which rents were paid. 
Libra numerata /laybr;) n(y)uwm;)reyt;)/. A pound of 
money counted instead of being weighed. 
Libra pensa /laybr;) pens;)/. A pound of money by 
weight. 
Libripens /libr;)penz/. In Roman law, a weigher or 
balance-holder. The person who held a brazen balance 
in the ceremony of emancipation, per res et libram. A 
neutral person or balance holder, who was present at a 
conveyance of real property. He held in his hand the 
symbolic balance, which was struck by the purchaser 
with a piece of bronze as a sign of the completion of the 
conveyance. The bronze was then transferred to the 
seller as a sign of the purchase money. 
License. A personal privilege to do some particular act 
or series of acts on land without possessing any estate or

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LICENSE 
interest therein, and is ordinarily revocable at the will 
of the licensor and is not assignable. Lehman v. Wil
liamson, 35 Colo.App. 372, 533 P.2d 63, 65. The permis
sion by competent authority to do an act which, without 
such permission, would be illegal, a trespass, a tort, or 
otherwise not allowable. People v. Henderson, 391 
Mich. 612, 218 N.W.2d 2, 4. Certificate or the document 
itself which gives permission. Leave to do thing which 
licensor could prevent. Western Electric Co. v. Pacent 
Reproducer Corporation, C.C.A.N.Y., 42 F.2d 11 6, 11 8. 
Permission to do a particular thing, to exercise a certain 
privilege or to carry on a particular business or to 
pursue a certain occupation. Blatz Brewing Co. v. Col
lins, 88 Cal.App.2d 639, 160 P.2d 37, 39, 40. 
A permit, granted by an appropriate governmental 
body, generally for a consideration, to a person, firm, or 
corporation to pursue some occupation or to carry on 
some business subject to regulation under the police 
power. A license is not a contract between the state and 
the licensee, but is a mere personal permit. Rosenblatt 
v. California State Board of Pharmacy, 69 Cal.App.2d 69, 
158 P.2d 199, 203. Neither is it property or a property 
right. American States Water Service Co. of California 
v. Johnson, 31 Cal.App.2d 606, 88 P.2d 770, 774. 
See also Bare or mere license; Certificate; Compulsory 
license; Exclusive license; Franchise; Letter of license; 
Licensee; Marriage license; Permit. 
Executed license. That which exists when the licensed 
act has been done. 
Executory license. That which exists where the licensed 
act has not been performed. 
Express license. One which is granted in direct terms. 
Imp lied license. One which is presumed to have been 
given from the acts of the ; party authorized to give it. 
License bond. See Bond. 
Patents. A written authority granted by the owner of a 
patent to another person empowering the latter to make 
or use the patented article for a limited period or in a 
limited territory. A permission to make, use or sell 
articles embodying invention. De Forest Radio Tele
phone & Telegraph Co. v. Radio Corporation of America, 
D.C.Del., 9 F.2d 150, 151. A transfer which does not 
affect the monopoly, except by estopping licensor from 
exercising his prohibitory powers in derogation of privi
leges conferred upon licensee. L. L. Brown Paper Co. v. 
Hydroiloid, Inc., D.C.N.Y., 32 F.Supp. 857, 867, 868. An 
assignment by the patentee to another of rights less in 
degree than the patent itself. Any right to make, use, 
or sell the patented invention, which is less than an 
undivided part interest in the patent itself. Any trans
fer of patent rights short of assignment. Language used 
by owner of patent, or any conduct on his part exhibited 
to another, from which that other may properly infer 
that owner consents to his use of patent, on which the 
other acts, constitutes a license. General Motors Corpo
ration v. Dailey, C.C.A.Mich., 93 F.2d 938, 941; Finley v. 
Asphalt Paving Co. of St. Louis, C.C.A.Mo., 69 F.2d 498, 
504. Transfer of exclusive right to do merely two of the 
920 
three rights under patent to make, use, and vend inven
tion. Overman Cushion Tire Co. v. Goodyear Tire & 
Rubber Co., C.C.A.N.Y., 59 F.2d 998, 1000. See also 
Patent. 
Pleading. The defense of justification to an action of 
trespass that the defendant was authorized by the owner 
of the land to commit the trespass complained of. Li
cense is an affirmative defense which must be pleaded 
by defendant. Fed.R.Civil P. 8(c). 
Real property. A license is ordinarily considered to be a 
mere personal or revocable privilege to perform an act 
or series of acts on the land of another. Hennebont Co. 
v. Kroger Co., 221 Pa.Super. 65, 289 A.2d 229, 231 . A 
privilege to go on premises for a certain purpose, but 
does not operate to confer on, or vest in, licensee any 
title, interest, or estate in such property. Timmons v. 
Cropper, 40 Del.Ch. 29, 172 A.2d 757, 759. Such privi
lege is unassignable. 
A license is distinguished from an "easement," which 
implies an interest in the land, and a "lease," or right to 
take the profits of land. It may be, however, and often, 
is, coupled with a grant of some interest in the land 
itself, or right to take the profits. National Memorial 
Park v. C. I. R., C.C.A.4, 145 F.2d 1008, 1015 . 
Simple license. One revocable at the will of the grantor; 
i.e., one not coupled with a grant. 
Streets and highways. A permit to use street is a mere 
license revocable at pleasure. Lanham v. Forney, 196 
Wash. 62, 81 P.2d 777, 779. The privilege of using the 
streets and highways by the operation thereon of motor 
carriers for hire can be acquired only by permission or 
license from the state or its political subdivisions. 
Trade, business or calling. Authority or permission to 
do or carry on some trade or business which would 
otherwise be unlawful. Standard Oil Co. (Indiana) v. 
State Board of Equalization, 11 0 Mont. 5, 99 P.2d 229, 
234. Permission conferred by proper authority to pur
sue certain trade, profession, or calling. Lloyds of Texas 
v. Bobbitt, Tex.Civ.App., 40 S.W.2d 897, 901. A license 
confers upon licensee neither contractual nor vested 
rights. Rosenblatt v. California State Board of Pharma
cy, 69 Cal.App.2d 69, 158 P.2d 199, 203. Nor does it 
create a property right. See also Franchise. 
Trademark. Permission to use a trademark in an area 
where the purported owner's goods have not become 
known and identified by his use of mark is a naked 
"license". E. F. Prichard Co. v. Consumers Brewing Co., 
C.C.A.Ky., 136 F.2d 512, 521. See Trademark. 
License cases. The name given to the group of cases 
including Peirce v. New Hampshire, 46 U.S. (5 How.) 
504, 12 L.Ed. 256, decided by the United States Supreme 
Court in 1847, to the effect that state laws requiring a 
license or the payment of a tax for the privilege of 
selling intoxicating liquors were not in conflict with the 
constitutional provision giving to Congress the power to 
regulate interstate commerce, even as applied to liquors 
imported from another state and remaining in the origi
nal and unbroken packages. This decision was over-

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921 
ruled in Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 
L.Ed. 128, which in turn was overturned by the act of 
Congress of August 8, 1890, commonly called the "Wil
son law." 
Licensee. A person who has a privilege to enter upon 
land arising from the permission or consent, express or 
implied, of the possessor of land but who goes on the 
land for his own purpose rather than for any purpose or 
interest of the possessor. Reddington v. Beefeaters Ta
bles, Inc., 72 Wis.2d 11 9, 240 N.W.2d 363, 366. For duty 
of care purposes, one who is privileged to enter or 
remain upon land by virtue of possessor's consent, 
whether given by invitation or permission. Backman v. 
Vickers Petroleum Co., 187 Kan. 448, 357 P.2d 748, 751. 
Person to whom a license has been granted. 
Formerly, the duty owed to a licensee was that of 
refraining from wilful, wanton and reckless conduct. 
This rule has been changed and now, in most jurisdic
tions, the occupier of land owes the licensee the duty of 
reasonable or due care. Mounsey v. Ellard, 363 Mass. 
693, 297 N .E.2d 43. 
See also Exclusive licensee; Invitee. 
Licensee by invitation. A person who goes upon the 
lands of another with express or implied invitation to 
transact business with the owner or occupant or do sotne 
act to his advantage or to the mutual advantage of both 
the licensee and the owner or occupant. Samuel E. 
Pentecost Const. Co. v. O'Donnell, 11 2 Ind.App. 47, 39 
N.E.2d 812. An invitee. 
Licensee by permission. One who, for his own conve
nience, curiosity, or entertainment, goes upon the prem
ises of another by the owner's or occupant's permission 
or sufferance. Samuel E. Pentecost Const. Co. v. O'Don
nell, 112 Ind.App. 47, 39 N.E.2d 812, 817. 
License fee or tax. Charge imposed by governmental 
body for the granting of a privilege. Pennsylvania Li
quor Control Board v. Publicker Commercial Alcohot 
Co., 347 Pa. 555, 32 A.2d 914, 917. Charge or fee 
imposed primarily for the discouragement of dangerous 
employments, the protection of the safety of the public, 
or the regulation of relative rights, privileges, or duties 
as between individuals. Conard v. State, Del.Super., 2 
Terry 107, 16 A.2d 121, 125. Price paid to governmental 
or municipal authority for a license to engage in and 
pursue a particular calling or occupation. Tax on privi
lege of exercising corporate franchise. City Investments 
v. Johnson, 6 Ca1.2d 150, 56 P.2d 939, 940. The term 
"license tax" includes both charge imposed under police 
power for privilege of obtaining license to conduct par
ticular business, and tax imposed upon business for sole 
purpose of raising revenue; "license tax" being defined 
as sum exacted for privilege of carrying on particular 
occupation. Where a fee is exacted and something is 
required or permitted in addition to the payment of the 
sum, either to be done by the licensee, or by some 
regulation or restriction imposed on him, then the fee is 
a "license fee". Conard v. State, Del.Super., 2 Terry 
107, 16 A.2d 121, 125. A license fee is charge made 
primarily for regulation, with the fee to cover cost and 
LICET 
expenses of supervision or regulation. State v. Jack
man, 60 Wis.2d 700, 211 N.W.2d 480, 487. See also 
Franchise tax. 
License in amortization. A license authorizing a con
veyance of property which, without it, would be invalid 
under the statutes of mortmain. 
License tax. See License fee or tax. 
Licensing. The sale of a license permitting the use of 
patents, trademarks, or other technology to another 
firm. See also Cross-licensing. 
Licensing involves the many procedures administra
tive agencies perform in conjunction with issuance of 
various types of licenses. Westland Convalescent Cen
ter v. Blue Cross & Blue Shield of Michigan, 414 Mich. 
247, 324 N.W.2d 851, 859. 
Licensing power. The authority in a governmental 
body to grant a license to pursue a particular activity; 
e.g. license to sell liquor. 
Licensor /lays;}ns;}r/. The person who gives or grants a 
license. 
Licentia I l;}sensh(iy);} I . Lat. License; leave; permis
sion. 
Licentia concordandi II;}sensh(iy);} kOI)k;}rdrenday/. In 
old practice and conveyancing, license or leave to agree; 
one of the proceedings on levying a fine of lands. 2 
Bl.Com m. 350. 
Licentia loquendi II;}sensh(iy);} l;}kwenday I. In old 
practice, leave to speak (i.e., with the plaintiff); an 
imparlance; or rather leave to imparl. 3 Bl.Comm. 299. 
Licentia surgendi II;}sensh(iy);} s;}rjenday I. In old Eng
lish practice, license to arise; permission given by the 
court to a tenant in a real action, who had cast an essoin 
de malo lecti, to arise out of his bed. Also, the writ 
thereupon. If the demandant can show that the tenant 
was seen abroad before leave of court, and before being 
viewed by the knights appointed by the court for that 
purpose, such tenant shall be taken to be deceitfully 
essoined, and to have made default. 
Licentiate Ibsensh;}t/laysenshiyeyt/. One who has li
cense to practice any art or faculty. 
Licentiousness Ibsensh;}sn;}s/. The indulgence of the 
arbitrary will of the individual, without regard to ethics 
or law, or respect for the rights of others. Also, lewd
ness or lasciviousness. 
Licere II;}siriy I. Lat. To be lawful; to be allowed or 
permitted by law. 
Licere, Hceri /l;}siriy/l;}siray/. Lat. In Roman law, to 
offer a price for a thing; to bid for it. 
Licet Ilays;}t/lis;}t/. Lat. From the verb "/icere" (q.v.). 
It is allowed; it is permissible; it is lawful; not forbid
den by law. 
Licet dispositio de interesse futuro sit inutilis, tamen 
potest fieri declaratio prrecedens qure sortiatur ef
fectum, interveniente novo actu Ilays;}t 
disp;}zish(iy)ow diy int;}resiy fyuwt(y)urow sit inyuwt;}l;}s,

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LICITARE 
teym;}n p6wt;}st fay;}ray dekl;}reysh(iy)ow pr;}siydenz 
kwiy sorshiyeyt;}r ;}fekt;}m, int;}rviyniyentiy n6wvow 
rekt(y)uw/. Although the grant of a future interest be 
inoperative, yet a declaration precedent may be made, 
which may take effect provided a new act intervene. 
Licita bene miscentur, formula nisi juris obstet 
llis;}d;} biyniy m;}sent;}r, f6rmy;}l;} naysay jur;}s 6bst;}t/. 
Lawful acts [done by several authorities] are well min
gled [i.e., become united or consolidated into one good 
act], unless some form of law forbid. (E.g., Two having a 
right to convey, each a moiety, may unite and convey 
the whole.) 
Licitare llis;}teriy/. Lat. In Roman law, to offer a price 
at a sale; to bid; to bid often; to make several bids, one 
above another. 
Licitation I lis;}teysh;}n I . In the civil law, an offering for 
sale to the highest bidder, or to him who will give most 
for a thing. An act by which co-heirs or other co-propri
etors of a thing in common and undivided between them 
put it to bid between them, to be adjudged and to belong 
to the highest and last bidder, upon condition that he 
pay to each of his co-proprietors a part in the price equal 
to the undivided part which each of the said co-proprie
tors had in the estate licited, before the adjudication. 
Licitator llis;}teyt;}r/. In Roman law, a bidder at a sale. 
Licking of thumbs llikilJ ;}v (}�mzl. An ancient formali
ty by which bargains were completed. 
Lidford law llidf;}rd 161. A sort of lynch law, whereby a 
person was first punished and then tried. 
Lie, n. A falsehood uttered for the purpose of deception; 
an intentional statement of an untruth designed to 
mislead another; anything which misleads or deceives; 
it means an untruth deliberately told; the uttering or 
acting of that which is false for the purpose of deceiving; 
intentional misstatement. Ward v. University of South, 
209 Tenn. 412, 354 S.W.2d 246, 248. See Perjury. 
Lie, v. To subsist; to exist; to be sustainable; to be 
proper or available. Thus the phrase "an action will not 
lie " means that an action cannot be sustained, or that 
there is no ground upon which to found the action. 
Lie detector. See Polygraph. 
Liege. In feudal law, bound by a feudal tenure; bound 
in allegiance to the lord paramount, who owned no 
superior. The term was applied to the lord, or liege 
lord, to whom allegiance was due, since he was bound to 
protection and a just government, and also to the feuda
tory, liegeman, or subject bound to allegiance, for he was 
bound to tribute and due subjection. So lieges are the 
king's subjects. 
In old records, full; absolute; perfect; pure. Liege 
widowhood was pure widowhood. Ligius was also used; 
e.g. ligia potestas, full and free power of disposal. 
Liege homage lliyzh (h)6m;}j/liyf I. Homage which, 
when performed by one sovereign prince to another, 
included fealty and services, as opposed to simple hom
age, which was a mere acknowledgment of tenure. 
922 
Liege lord lliyzh 16rd/liyf I . A sovereign; a superior 
lord. 
Liegeman lliyjm;}n/. He that oweth allegiance. 
Lieger, or leger Ilej;}r/liyj;}r/. A resident ambassador. 
Lieges, or liege people lliyzh;}z/liyzh/piyp;}lIliyj" I. 
Subjects. 
Lie in franchise. Property is said to "lie in franchise" 
when it is of such a nature that the persons entitled 
thereto may seize it without the aid of a court; e.g., 
wrecks, waifs, estrays. 
Lie in grant. Incorporeal hereditaments are said to "lie 
in grant;" that is, they pass by force of the grant (deed 
or charter) without livery. 
Lie in livery. A common law term applied to corporeal 
hereditaments, freeholds, etc., signifying that they pass 
by livery, not by the mere force of the grant. 
Lie in wait. See Lying in wait. 
Lien I liy(;})n I . A claim, encumbrance, or charge on 
property for payment of some debt, obligation or duty. 
Sullins v. Sullins, 65 Wash.2d 283, 396 P.2d 886, 888. 
Qualified right of property which a creditor has in or 
over specific property of his debtor, as security for the 
debt or charge or for performance of some act. Right or 
claim against some interest in property created by law 
as an incident of contract. Right to enforce charge upon 
property of another for payment or satisfaction of debt 
or claim. Vaughan v. John Hancock Mut. Life Ins. Co., 
Tex.Ci v.App., 61 S.W.2d 189, 190. Right to retain prop
erty for payment of debt or demand. Bell v. Dennis, 43 
N.M. 350, 93 P.2d 1003, 1006. Security for a debt, duty 
or other obligation. Hurley v. Boston R. Holding Co., 
315 Mass. 591, 54 N.E.2d 183, 193. Tie that binds 
property to a debt or claim for its satisfaction. United 
States v. 1364.76875 Wine Gallons, More or Less, of 
Spirituous Liquors, D.C.Mo., 60 F.Supp. 389, 392. Liens 
� are "property rights". In re Pennsylvania Central 
Brewing Co., C.C.A.Pa., 11 4 F.2d 1010, 1013. The word 
"lien" is a generic term and, standing alone, includes 
liens acquired by contract or by operation of law. Egyp
tian Supply Co. v. Boyd, C.C.A.Ky., 117 F.2d 608, 612. 
A change against or interest in property to secure 
payment of a debt or performance of an obligation. 
Bankruptcy Code § 10l . 
Lie� by operation of law. Where the law itself, with
out the stipulation of the parties, raises a lien, as an 
implication or legal consequence from the relation of the 
parties or the circumstances of their dealings. Liens of 
this species may arise either under the rules of common 
law or of equity or under a statute. In the first case 
they are called "common-law liens;" in the second, 
"equitable liens;" in the third, "statutory liens." 
Roman or Civil law. The peculiar securities which, in 
the common and maritime law and equity, are termed 
"liens," are embraced under the head of "mortgage and 
privilege." 
See also Agent's lien; Architect's lien; Artisan's lien; 
Attorney's lien; Banker's lien; Charging Lien; Chattel lien;

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923 
Common-law lien; Concurrent liens; Deferred lien; Eq
uitable lien; Execution lien; Factor's lien; First lien; Float
ing lien; General lien; Incho ate lien; Involuntary lien; 
Judgment lien; Judicial lien; Laborers' lien; Maritime lien; 
Materialman's lien; Mechanic's lien; Municipal lien; Re
taining lien; Second lien; Secret lien; Special lien; Statu
tory lien; Tax lien; Vendor's lien; Warehousemen's lien. 
Lien account. Such statement of claims as fairly appris
es property owner and public of nature and amount of 
demand asserted as lien. Hanenkamp v. Hagedorn, 
Mo.App., 11 0 S.W.2d 826, 829. 
Lien creditor. One whose debt or claim is secured by a 
lien on particular property, as distinguished from a 
"general" creditor, who has no such security. A credi
tor who has acquired a lien on the property involved, by 
attachment, levy or the like, and includes an assignee 
for benefit of creditors from the time of assignment, and 
a trustee in bankruptcy from the date of the filing of the 
petition, or a receiver in equity from the time of appoint
ment. u.c.n § 9-301(3). See also Creditor. 
Lienee lliyniy I. One whose property is subject to a lien. 
Lien of a covenant. The commencement of a covenant 
stating the names of the covenantors and convenantees, 
and the character of the covenant, whether joint or 
several. 
Lien of attachment. An encumbrance on property 
seized through the pre-judgment remedy of attachment 
that is inchoate when it first arises, usually upon the 
sheriffs levy of the property, and that becomes final and 
perfected upon judgment for the attaching creditor in 
the action who caused attachment to issue. For pur
poses of priority against third parties' claims to the 
property, a lien of attachment perfected by judgment 
dates from the time the lien first arose. See Attachment. 
Lien of execution. An encumbrance that attaches by 
operation of law to a judgment debtor's real and person
al property when the property is subjected to execution 
process and that gives the execution creditor a priority 
over subsequent transferees of the property and also 
over prior unrecorded conveyances of interests in the 
property. See Attachment; Execution. 
Lien of factor at common law. Lien not created 
through statutory enactment, but lien of ordinary factor 
as known to common law. 
Lien of garnishment. Encumbrance on property of a 
debtor held by a garnishee that attaches in favor of the 
garnishing creditor when garnishment summons is 
served upon the garnishee and that also impounds cred
its owed by the garnishee to the debtor so that they 
must be paid to the garnishing creditor. See Garnish
ment. 
Lienor lliy(�)n�r/. The person having or owning a lien; 
one who has a right of lien upon property of another. 
Lien waiver. A waiver of mechanic's lien rights, signed 
by subcontractors so that the owner or general contrac
tor can receive a draw on a construction loan. 
LIFE 
Lie to. To adjoin. 
Lieu conus II(y)uw k6nyuw/. L. Fr. In old pleading, a 
known place; a place well known and generally taken 
notice of by those who dwell about it, as a castle, a 
manor, etc. 
Lieu lands. A term used to indicate public lands within 
the indemnity limits granted in lieu of those lost within 
place limits. Weyerhaeuser v. Hoyt, 219 U.S. 380, 31 
S.Ct. 300, 55 L.Ed. 258. 
Lieu tax. A lieu tax means instead of or a substitute for, 
and it is not an additional tax. Lebeck v. State, 62 Ariz. 
171, 156 P.2d 720, 721. 
Lieutenancy, commission of. See Commission of array. 
Lieutenant Il(y)uwt€m�nt/leften�nt/. A deputy; substi
tute; an officer who supplies the place of another; one 
acting by vicarious authority. Etymologically, one who 
holds the post or office of another, in the place and stead 
of the latter. 
The word is used in composition as part of the title of 
several civil and military officers, who are subordinate 
to others, and especially where the duties and powers of 
the higher officer may, in certain contingencies, devolve 
upon the lower; as lieutenant governor, lieutenant colo
nel, etc. (see inf ra). 
In the army, a lieutenant is a commissioned officer, 
ranking next below a captain. In the United States 
navy, he is an officer whose rank is intermediate be
tween that of an ensign and that of a lieutenant com
mander. In the British navy, his rank is next below 
that of a commander. 
Lieutenant colonel. An officer of the army whose rank 
is above that of a major and below that of a colonel. 
Lieutenant commander. A commissioned officer of the 
United States navy, whose rank is above that of lieuten
ant and below that of commander. 
Lieutenant general. An officer in the army, whose 
rank is above that of Major General and below that of a 
Full General or Four Star General which is below a 
General of the Army or Five Star General. 
Lieutenant governor. An elected officer of a state, 
sometimes charged with special duties, but chiefly im
portant as the deputy or substitute of the governor, 
acting in the place of the governor upon the latter's 
death, resignation, or disability. 
Life. That state of animals, humans, and plants or of an 
organized being, in which its natural functions and 
motions are performed, or in which its organs are capa
ble of performing their functions. The interval between 
birth and death. The sum of the forces by which death 
is resisted.

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LIFE 
"Life" protected by the Federal Constitution includes 
all personal rights and their enjoyment of the faculties, 
acquiring useful knowledge, the right to marry, estab
lish a home, and bring up children, freedom of worship, 
conscience, . contract, occupation, speech, assembly and 
press. 
See also Natural life; Useful life; Viability; Viable child; 
Wrongful life. 
Life annuity. An engagement to pay an income yearly · 
during the life of some person; also the sum thus 
promised. An annuity, depending on the continuance of 
an assigned life or lives, is sometimes called a life 
annuity. Bodine v. Commissioner of Internal Revenue, 
C.C.A.3, 103 F.2d 982, 985. See also Annui ty. 
Life beneficiary. One who receives payments or other 
rights from a trust for his or her lifetime. 
Life care contract. An agreement in which one party is 
assured of care and maintenance for his natural life in 
consideration of a transfer of property to the other 
party. Such contracts exist, for example, between el
derly persons and nursing homes. 
Life estate. An estate whose duration is limited to the 
life of the party holding it, or some other person. See 
also Life interest. 
A legal arrangement whereby the beneficiary (i.e., the 
life tenant) is entitled to the income from the property 
for his or her life. Upon the death ofthe life tenant, the 
property will go to the holder of the remainder interest 
or to the grantor by reversion. 
Life expectancy. The period of time in which a person 
of a given age and sex is expected to live according to 
statistical (i.e. actuarial) tables. See also Actuarial table; 
Life tables. 
Life in being. A phrase used in the common-law and 
statutory rules against perpetuities, meaning the re
maining duration of the life of a person who is in 
existence at the time when the deed or will takes effect. 
McArthur v. Scott, 113 U.S. 340, 5 S.Ct. 652, 28 L.Ed. 
1015. 
Life insurance. See Insurance. 
Life insurance proceeds. Generally, life insurance pro
ceeds paid to a beneficiary upon the death of the insured 
are exempt from Federal income tax. An exception is 
provided where a life insurance contract has been trans
ferred for valuable consideration to another individual 
who assumes ownership rights. In such case the pro
ceeds are income to the assignee to the extent that the 
proceeds exceed the amount paid for the policy plus any 
subsequent premiums paid. Insurance proceeds may be 
subject to the Federal estate tax if the decedent retained 
any incidents of ownership in the policy prior to death 
or if the proceeds are payable to his estate. I.R.C. 
§§ 101 and 2042. 
Life insurance reserves. Fund which, together with 
future premiums and interest, will be sufficient to pay 
future claims. Jefferson Standard Life Ins. Co. v. U. S., 
C.A.N.C., 408 F.2d 842, 845. 
924 
Life insurance trust. Type of trust, the res of which 
consists in whole or in part of life insurance policies 
owned by the trustees and payable to the trust on the 
death of the insured. A device commonly used in estate 
planning. 
Life interest. A claim or interest in real or personal 
property, not amounting to ownership, and limited by a 
term of life, either that of the person in whom the right 
is vested or that of another. See also Life estate. 
Life-land, or life-hold. Land held on a lease for lives. 
Life of a writ. The period during which a writ (execu
tion, etc.) remains effective and can lawfully be served 
or levied, terminating with the day on which, by law or 
by its own terms, it is to be returned into court. 
Life or limb. The phrase "life or limb" within constitu
tional provision that no person shall be subject for the 
same offense to be twice put in jeopardy of life or limb is 
not construed strictly but applies to any criminal penal
ty. Fifth Amend., U.S.C onst. Clawans v. Rives, 70 
U.S.App.D.C. 107, 104 F.2d 240, 242. 
Life peerage. Letters patent, conferring the dignity of 
baron for life only, do not enable the grantee to sit and 
vote in the house of lords, not even with the usual writ 
of summons to the house. 
Life policy. See Ins urance (Life insurance). 
Life sentence. See Sentence. 
Life sustaining procedures. Such procedures which 
may be suspended on a court order or pursuant to a 
living will in case of, for example, a comatose and 
terminally ill individual, are medical procedures which 
utilize mechanical or other artificial means to sustain, 
restore, or supplant a vital function, which serve only or 
primarily to prolong the moment of death, and where, in 
the judgment of the attending and consulting physi
cians, as reflected in the patient's medical records, death 
is imminent if such procedures are not utilized. John F. 
Kennedy Memorial Hosp., Inc. v. Bludworth, Fla.App. 4 
Dist., 432 So.2d 611, 619. See also Right to die laws; Will 
(Livin g will). 
Life tables. Statistical (i.e. actuarial) tables exhibiting 
the probable proration of persons who will live to reach 
different ages. Such tables are used for many purposes, 
such as the computation of the present value of annui
ties, dower rights, etc.; and for the computation of 
damages resulting from i,njuries which destroy the earn
ing capacity of a person, or those resulting from the 
death of a person to those who are dependent upon him. 
See also Actuarial tables. 
Life tenancy. An estate in real property in which the 
tenant has a freehold interest for his life or for the life 
of another (pur autre vie). 
Life tenant. One who holds an estate in lands for the 
period of his own life or that of another certain person. 
LIFO. See last-in, first-out. 
Lift. To raise; to take up. To "lift" a promissory note is 
to discharge its obligation by paying its amount or 
substituting another evidence of debt. To "lift the bar"

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925 
of the statute of limitations, or of an estoppel, is to 
remove the obstruction which it interposes, by some 
sufficient act or acknowledgment. 
Liga lliyg�/. In old European law, a league or confeder
ation. 
Ligan, lagan Ilayg�n/leyg�n/. Goods cast into the sea 
tied to a buoy, so that they may be found again by the 
owners, are so denominated. When goods are cast into 
the sea in storms or shipwrecks, and remain there, 
without coming to land, they are distinguished by the 
barbarous names of "jetsam," "flotsam," and "ligan." 
Ligare /l�geriy I. To tie or bind. To enter into a league 
or treaty. 
Ligea lliyj(iy)�/. In old English law, a liege-woman; a 
female subject. 
Ligeance lliyj�n(t)sl. Allegiance; the faithful obedience 
of a subject to his sovereign, of a citizen to his govern
ment. Also, derivatively, the territory of a state or 
sovereignty. 
Ligeantia llijiyrensh(iy)�/. Lat. Ligeance; allegiance. 
Ligeantia est quasi legis essentia; est vinculum fidei 
llijiyrensh(iy)� est kweyzay liyj�s �sensh(iy)�, est 
vi1Jk(y)�bm faydiyay/. Allegiance is, as it were, the 
essence of law; it is the chain of faith. 
Ligeantia naturalis nullis claustris coercetur, nullis 
Metis refrrenatur, nullis finibus premitur 
llijiyrensh(iy)� nrety�reyl�s n�bs kl6str�s kow�rs�t�r, 
n�l�s met�s rerr�neyt�r, n�l�s fin�b�s prem�t�r I. N atu
ral allegiance is restrained by no barriers, reined by no 
bounds, compressed by no limits. 
Ligeas lliyj(iy)�s/. In old records, a liege. 
Light, right to. A privilege or easement to have light 
admitted into one's building by the openings made for 
that purpose, without obstruction or obscuration by the 
walls of adjacent or neighboring structures. Santos v. 
Dondero, 11 Cal.App.2d 720, 54 P.2d 764, 766. 
Lighterage. The business of transferring, loading, and 
unloading, merchandise to and from vessels by means of 
lighters; also the compensation or price demanded for 
such service. The loading, unloading and transfer of 
freight between a car and a ship's side. Hoboken Manu
facturers' R Co. v. United States, D.C.N.J., 47 F.Supp. 
779, 782. 
Lighterman Ilayd�rm�n/. The master or owner of a 
lighter. He is liable as a common carrier. 
Lights, ancient. English doctrine under which a land
owner acquired, by uninterrupted use for 20 years, an 
easement or right by prescription over adjoining land 
for the unobstructed passage of light and air. 
Ligius lliyj(iy)�s/. A person bound to another by a 
solemn tie or engagement; used to express the relation 
of a subject to a sovereign. See also Liege. 
Lignagium lligneyj(iy)�m/. A right of cutting fuel in 
woods; also a tribute or payment due for the same. 
LIMENARCHA 
Ligula lligy�b/. In old English law, a copy, exemplifica
tion, or transcript of a court roll or deed. 
Like. Equal in quantity, quality, or degree or exactly 
corresponding. Bader v. Coale, 48 Cal.App.2d 276, 119 
P.2d 763, 765. Also means having the same, or nearly 
the same, appearance, qualities, or characteristics, Ja
pan Import Co. v. United States, Cust. & Pat.App., 86 
F.2d 124, 131; resembling another; same manner, Seilaz 
v. Seilaz, 24 Tenn.App. 611, 148 S.W.2d 23, 25; similar, 
Castell v. United States, D.C.N.Y., 20 F.Supp. 175, 179; 
or, substantially similar, Jones v. H. D. & J. K. Cross
well, C.C.A.S.C., 60 F.2d 827, 829. 
Like benefits. Similar in salient features. 
Like character. Similarity. Bader v. Coale, 48 Cal. 
App.2d 276, 11 9 P.2d 763, 765. 
Like-kind exchange. An exchange of property held for 
productive use in a trade or business or for investment 
(except inventory and stocks and bonds) for other invest
ment or trade or business property. Unless cash is 
received, the exchange is nontaxable. I.RC. § 1031. 
Test for determining whether exchanged properties are 
of "like kind," such that gain from the exchange is not 
recognized for federal income tax purposes, is whether 
the property is of the same nature or character and a 
mere difference in grade or quality does not disqualify 
the exchange. California Federal Life Ins. Co. v. C.I.R, 
C.A. 9, 680 F.2d 85, 87. See also Boot. 
Like-kind property. See Like-kind exchange. 
Likelihood. Probability. Clark v. Welch, C.C.A.Mass., 
140 F.2d 271, 273. The word imports something less 
than reasonably certain. 
Likelihood of confusion. Touchstone of trademark in
fringement under Lanham Trade-Mark Act is "likeli
hood of confusion," or whether substantial number of 
ordinarily prudent purchasers are likely to be misled or 
confused as to source of different product. Mushroom 
Makers, Inc., v. RG. Barry Corp., D.C.N.Y., 441 F.Supp. 
1220, 1225. Factors to be considered in determining 
"likelihood of confusion" are the degree of resemblance 
between the marks in appearance, pronunciation, trans
lation and suggestiveness, the intent of the second user 
in adopting the allegedly infringing mark, similarity of 
circumstances and conditions surrounding the purchase 
of the goods involved and the degree of care likely to be 
exercised by purchasers. Schmid Laboratories v. 
Youngs Drug Products Corp., D.C.N.J., 482 F.Supp. 14, 
17. 
Likely. Probable. Horning v. Gerlach, 139 Cal.App. 
470, 34 P.2d 504, 505. In all probability. Neely v. 
Chicago Great Western R Co., Mo.App., 14 S.W.2d 972, 
978. Likely is word of general usage and common 
understanding, broadly defined as of such nature or so 
circumstantial as to make something probable and hav
ing better chance of existing or occurring than not. 
People v. Randall, Colo., 711 P.2d 689, 692. 
Limenarcha llim�nark�/. In Roman law, an officer who 
had charge of a harbor or port.

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LIMINE 
Limine. See Motion in limine. 
Limit, v. To abridge, confine, restrain, and restrict. To 
mark out; to define; to fix the extent of. Thus, to limit 
an estate means to mark out or to define the period of 
its duration, and the words employed in deeds for this 
purpose are thence termed "words of limitati on," and 
the act itself is termed "limiting the estate." 
Limit, n. A bound; a restriction; a restraint; a circum
scription. Boundary, border, or outer line of thing. 
Extent of power, right or authority conferred. 
Limitation. Restriction or circumspection; settling an 
estate or property. A certain time allowed by a statute 
for bringing litigation (see Statute of limitations, below). 
The provisions of state constitution are not a "grant" 
but a "limitation" of legislative power. Ellerbe v. 
David, 193 S.C. 332, 8 S.E.2d 518, 520; Mulholland v. 
Ayers, 109 Mont. 558, 99 P.2d 234, 239. See also Provi
so. 
Corporations. Under statute providing that all corpora
tions expiring by their own "limitation" shall for certain 
purposes be continued as bodies corporate for a term of 
three years, the word "limitation" is an act of limiting, a 
restriction of power, a qualification. Porter v. Tempa 
Min. & Mill. Co., 59 Nev. 332, 93 P.2d 74 1, 743. 
Estates. The restriction or circumscription of an estate, 
in the conveyance by which it is granted, in respect to 
the interest of the grantee or its duration. The specific 
curtailment or confinement of an estate, by the terms of 
the grant, so that it cannot endure beyond a certain 
period or a designated contingency. A "limitation" on a 
grant determines an estate upon the happening of the 
event itself without the necessity of doing any act to 
regain the estate, such as re-entry. Gulf Production Co. 
v. Continental Oil Co., Tex., 132 S.W.2d 553, 563. A 
limitation, whether made by the express words of the 
party or existing in intendment of law, circumscribes 
the continuance of time for which the property is to be 
enjoyed, and by positive and certain terms, or by refer
ence to some event which possibly may happen, marks 
the period at which the time of enjoyment shall end. 
Collateral limitation. One which gives an interest in an 
estate for a specified period, but makes the right of 
enjoyment to depend on some collateral event, as an 
estate to A. till B. shall go to Rome. 
Conditional limitation. A condition followed by a limi
tation over to a third person in case the condition be not 
fulfilled or there be a breach of it. A conditional limita
tion is where an estate is so expressly defined and 
limited by the words of its creation that it cannot 
endure for any longer time than till the contingency 
happens upon which the estate is to fail. Between 
conditional limitations and estates depending on condi
tions subsequent there is this difference: that in the 
former the estate determines as soon as the contingency 
happens; but in the latter it endures until the grantor 
or his heirs take advantage of the breach. 
926 
A conveyance of an estate in fee, subject to this limita
tion, passes the grantor's whole interest at once and 
creates an estate to arise and vest in a third person on 
contingency at a future uncertain time. Roadcap v. 
County School Bd. of Rockingham County, 194 Va. 201, 
72 S.E.2d 250, 254. 
In landlord and tenant law, a prOVISIOn in a lease 
which gives a landlord added protection by enabling the 
landlord to end the term before its natural expiration 
date. Varela v. Miller, 204 Misc. 88, 120 N.Y.S.2d 688, 
690. Such exists, for example, when lease provides that 
it shall terminate upon the happening of an event 
without any further election, entry, or re-entry. Pisa
rek v. Sikora, 29 Misc.2d 457, 216 N.Y.S.2d 202, 203. 
Contingent limitation. When a remainder in fee is 
limited upon any estate which would by the common 
law be adjudged a fee tail, such a remainder is valid as a 
contingent limitation upon a fee, and vests in possession 
on the death of the first taker without issue living at the 
time of his death. 
Limitation in law. A limitation in law, or an estate 
limited, is an estate to be holden only during the contin
uance of the condition under which it was granted, upon 
the determination of which the estate vests immediately 
in him in expectancy. 
Limitation over. This term includes any estate in the 
same property created or contemplated by the convey
ance, to be enjoyed after the first estate granted expires 
or is exhausted. Lane v. Citizens & Southern Nat. 
Bank, 195 Ga. 828, 25 S.E.2d 800, 802, 803. Thus, in a 
gift to A. for life, with remainder to the heirs of his 
body, the remainder is a "limitation over" to such heirs. 
Limitation title. Full title, precluding all claims. Free 
v. Owen, 131 Tex. 281, 113 S.W.2d 1221, 1224. 
Special limitation. A qualification serving to mark out 
the bounds of an estate, so as to determine it ipso fa cto 
in a given event, without action, entry, or claim, before 
it would, or might, otherwise expire by force of, or 
according to, the general limitation. 
Title by limitation. A prescriptive title; one which is 
indefeasible because of the expiration of the time pre
scribed by the statute of limitations for the bringing of 
actions· to test or defeat it. 
Words of limitation. In a conveyance or will, words 
which have the effect of marking the duration of an 
estate are termed "words of limitation." Thus, in a 
grant to A. and his heirs, the words "and his heirs" are 
words of limitation, because they show that A. is to take 
an estate in fee-simple and do not give his heirs any
thing. Summit v. Yount, 109 Ind. 506, 9 N.E. 582. 
Limitation of actions. See Statute of limitations, below.

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927 
Limitation of assize. In old practice, a certain time 
prescribed by statute, within which a man was required 
to allege himself or his ancestor to have been seized of 
lands sued for by a writ of assize. 
Statute of limitations. Statutes of the federal govern
ment and various states setting maximum time periods 
during which certain actions can be brought or rights 
enforced. After the time period set out in the applicable 
statute of limitations has run, no legal action can be 
brought regardless of whether any cause of action ever 
existed. 
A statute prescribing limitations to the right of action 
on certain described causes of action or criminal prose
cutions; that is, declaring that no suit shall be main
tained on such causes of action, nor any criminal charge 
be made, unless brought within a specified period of 
time after the right accrued. See e.g. 28 U.S.C.A. 
§§ 2401, 2501 (statutes of limitation for actions against 
U.S. government). In criminal cases, however, a statute 
of limitation is an act of grace, a surrendering by sover
eign of its right to prosecute. See e.g. 18 U.S.C.A. 
§ 3281 et seq. (statutes of limitations for federal crimi
nal prosecutions). See also Laches; Statute (Statute of 
repose). 
Statute of re pose compared. While statutes of limita
tion are sometimes called "statutes of repose," the 
former bars right of action unless it is filed within a 
specified period of time after injury occurs, while "stat
ute of repose" terminates any right of action after a 
specific time has elapsed, regardless of whether there 
has as yet been an injury. Hanson v. Williams County, 
N.D., 389 N.W.2d 319, 321. See also Statute (Statute of 
repose). 
Words of limitation. Words that limit or define the 
interest in land that a grantee receives such as "and his 
heirs." Language in a deed indicating how long the 
estate granted is to endure. 
Limitation of liability acts. State and federal statutes 
that limit liability for certain types of damages (e.g. , 
pain and suffering) or limit liability of certain persons or 
groups (e.g. , liability of corporate directors for acts of 
corporation), or limit time period in which action can be 
maintained (see Limitation (Statute of limitations» . See 
also Cap; Federal Tort Claims Act; Sovereign Im munity; 
No-fault. 
Limitation of prosecutions. See Limitation (Statute of 
limitations). 
Limitations, statute of. See Limitation (Statute of limita
tions). 
Limited. Restricted; bounded; prescribed. Confined 
within positive bounds; restricted in duration, extent, or 
scope. 
As to limited Company; Divorce; Fee; and Partner
ship, see those titles. 
Ltd. A designation following a corporate business name 
and indicating its corporate and limited liability status. 
It is found most commonly after British and Canadian 
LIMITED OR SPECIAL JURISDICTION 
corporate names, though it is sometimes used in the 
United States. 
Limited administration. An administration of a tempo
rary character, granted for a particular period, or for a 
special or particular purpose. 
Limited admissibility. In law of evidence, testimony or 
things may be admitted into evidence for a restricted 
purpose, and the trial judge should so instruct the jury 
at the time of its admission; e.g. prior contradictory 
statements are admissible to impeach but not admissible 
for the truth of the statements. However, if the evi
dence has multiple purposes, one being in violation of a 
constitutional protection for a criminal defendant, such 
evidence should not be admitted. Bruton v. United 
States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. 
Similarly, evidence may frequently be competent as 
against one party, but not as against another, in which 
event the practice is to admit the evidence, with an 
instruction, if requested, that the jury are to consider it 
only as to the party against whom it is competent. 
Fed.Evid.R. 105. 
Limited appeal. An appeal from only adverse portions 
of a decree; such is limited to the particular portions of 
the decree appealed from. Fox v. River Heights, 22 
Tenn.App. 166, 11 8 S.W.2d 1104, 111 4. See also Interloc
utory appeal; Interlocutory Appeals Act. 
Limited court. Where special authority, in derogation 
of common law, is conferred by statute on a court of 
general jurisdiction, it becomes an "inferior or limited 
court". For example, a probate court is a court of 
limited jurisdiction. Partlow v. Partlow, 246 Ala. 259, 
20 So.2d 517, 518. See Limited or special jurisdiction. 
Limited divorce. A divorce decree or judgment may be 
restricted to a dissolution of the marriage with no provi
sion for support. In another sense, term refers to a 
divorce a mensa et thoro (from bed and board) with no 
right to remarry. 
Limited executor. An executor whose appointment is 
qualified by limitations as to the time or place wherein, 
or the subject-matter whereon, the office is to be exer
cised; as distinguished from one whose appointment is 
absolute, i.e., certain and immediate, without any re
striction in regard to the testator's effects or limitation 
in point of time. 
Limited guaranty. A limited guaranty is ordinarily one 
restricted in its application to a single transaction. 
Cooling v. Springer, 3 Terry 228, 30 A.2d 466, 469. 
Limited liability. See Limitation of liability acts. 
Limited or special jurisdiction. Jurisdiction of court 
which is confined to particular types of cases or actions, 
or which can be exercised only under the limitations 
and circumstances prescribed by the statute. A court's 
power over an action is governed generally by statute 
and some courts have limited authority or power and 
the limitation is in terms of the nature of the case (e.g. 
probate courts), or the amount in controversy (e.g. small 
claims court), or the type of crime with which the

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LIMITED OR SPECIAL JURISDICTION 
defendant is charged or the age of the accused (e.g. 
juvenile courts). See also Limited court. 
Limited owner. A tenant for life, or by the curtesy, or 
other person not having absolute ownership. 
Limited partner. A person who has been admitted to a 
limited partnership as a limited partner in accordance 
with the partnership agreement. Uniform Partnership 
Act, § 101 . A partner whose liability to third party 
creditors of the partnership is limited to the amount 
invested by such partner in the partnership. See Limited 
partnership. Compare General partner. 
Limited partnership. Type of partnership comprised of 
one or more general partners who manage business and 
who are personally liable for partnership debts, and one 
or more limited partners who contribute capital and 
share in profits but who take no part in running busi
ness and incur no liability with respect to partnership 
obligations beyond contribution. Evans v. Galardi, 16 
Ca1.3d 300, 128 Cal.Rptr. 25, 30, 546 P.2d 313. 
A partnership formed by two or more. persons under 
the provisions of the Uniform Limited Partnership Act, 
having as members one or more general partners and 
one or more limited partners. The limited partners, as 
such, are not bound by the obligations of the partner
ship. Uniform Limited Partnership Act § 101(7). Most 
all states have adopted the Uniform Limited Partner
ship Act. 
See also General partner; Limited partner. 
Master limited partnership. A standard limited part
nership in which its interests are publicly traded. 
"Master" merely refers to the two tier form often em
ployed to meet state law requirements as to limited 
liability. 
Limited payment plan. A policy upon a "limited pay
ment plan" is a paid-up policy, and insurance upon 
which no further premium is to be paid. Bankers Life 
& Loan Ass'n v. Chase, Tex.Civ.App., 11 4 S.W.2d 374, 
376. 
Limited policy. Insurance policy specifically excluding 
certain classes or types of loss. State Compensation Ins. 
Fund v. Industrial Accident Commission, 56 Cal.App.2d 
443, 132 P.2d 890, 894. 
Limited power of appointment. Power of appointment 
is limited when it is exercisable only in favor of persons 
or a class of persons designated in the instrument creat
ing the power. Johnstone v. Commissioner of Internal 
Revenue, C.C.A.9, 76 F.2d 55, 57. See also Power of 
appointment. 
Limited publication. Copyrighted material loses its 
protected status if it is published without notice of 
copyright; an exception to such doctrine exists for mate
rial whose publication can be characterized as "limited," 
but to qualify as a "limited publication," the pUblication 
must communicate the contents of a manuscript to a 
definitely selected group and for a limited purpose with
out the right of diffusion, reproduction, distribution or 
sale. Rexnord, Inc. v. Modern Handling Systems, Inc., 
D.C.Del., 379 F.Supp. 1190, 11 97. Circulation must be 
928 
restricted both as to persons and purpose or it cannot be 
called a private or limited publication. Conner v. Mark 
I, Inc., D.C.Ill., 509 F.Supp. 11 79, 1180. 
Limit order. Requests by customers to purchase or sell 
securities at the market price existing when the order 
reaches the exchange floor. A restriction on the sale or 
purchase of a security placed by a customer with a 
broker, limiting the price at which the customer is 
willing to buy or sell. 
Lincoln's Inn /li1Jk:mz info An inn of court. See In ns of 
Court. 
Lindbergh Act. Federal law which punishes kidnap
ping for ransom or reward when the victim is transport
ed from one state to another or to a foreign country. 
The failure to release the victim within 24 hours creates 
a rebuttable presumption that such person has been 
transported in interstate or foreign commerce. 18 U.S. 
C.A. § 1201. 
Line. A demarcation, border, or limit. The boundary or 
line of division between two estates. Person's trade, 
occupation or business. Carrier's route. 
Building line. See Buildin g line. 
Collateral line. See Descent. 
De scent. See Descent. 
Direct line. See Descent. 
Line by line budget. A detailed itemization of all ex
penditures by budget line. Block V. Sprague, Sup., 24 
N.Y.S.2d 245, 247. 
Line of an intersection. A straight line substantially at 
right angles to bounds of highway at a point where, to 
the reasonable perception of a driver, the highway starts 
to widen as the result of the outcurving of its bounds to 
form the junction. Beck V. Sosnowitz, 125 Conn. 553, 7 
A.2d 389, 391. 
Line of credit. A margin or fixed limit of credit granted 
by one to another, typically from bank, retailer, or 
credit card issuer to customer, to the full extent of 
which the latter may avail himself in his dealings with 
the former, but which he must not exceed; usually 
intended to cover a series of transactions, in which case, 
when the customer's line of credit is nearly or quite 
exhausted, he is expected to reduce his indebtedness by 
payments before drawing upon it further. Modoc Meat 
& Cattle CO. V. First State Bank of Oregon, 271 Or. 276, 
532 P.2d 21, 25. The maximum borrowing power (i.e. 
credit limit) of a person from a financial institution, 
credit card issuer, or the like. Agreement with bank or 
number of banks for short-term borrowings on demand. 
Line of duty. In military law and usage, an act is said 
to be done, or an injury sustained, "in the line of duty," 
when done or suffered in the performance or discharge 
of a duty incumbent upon the individual in his character 
as a member of the military or naval forces. An injury 
suffered or disease contracted by a sailor is considered to 
have been in "line of duty" unless actually caused by 
something for which sailor is responsible which inter-

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929 
venes between his performance of duty and the injury or 
disease. Meyer v. Dollar S. S. Line, C.C.A.Wash., 49 
F.2d 1002, 1003. Phrase in Federal Tort Claims Act, as 
applicable to military and naval personnel, has no 
broader significance than "scope of employment" as 
used in master and servant cases. State of Md., to Use 
of Bennus v. U.S., D.C.Pa., 221 F.Supp. 740, 743. 
Line of ordinary high tide. Ordinary high tide may, for 
practical purposes, within a restricted area, be conceived 
as a level plane; the "line of ordinary high tide" is the 
intersection of said plane with the surface of the land. 
Swarzwald v. Cooley, 39 Cal.App.2d 306, 103 P.2d 580, 
584. See Tide. 
Maternal line. See Maternal line. 
Paternal line. See Paternal line. 
Public utilities. See Public utility. 
Linea /liniy�/. Lat. A line; line of descent. See De
scent. 
Lineage /lin(i)y�j/. Race; progeny; family, ascending or 
descending. Line of descent from an ancestor, hence, 
family, race, stock. See also Descent. 
Lineal /liniy�l/. That which comes in a line; especially 
a direct line, as from father to son. Collateral relation
ship is not called "lineal," though the expression "collat
eral line," is not unusual. Proceeding in direct or 
unbroken line, hereditary, unbroken in course; distin
guished from collateral, as lineal descent, lineal succes
sion, having an ancestral basis or right. See also De
scent. 
Lineal consanguinity /liniy�l konsrelJgwin�diy / . That 
kind of consanguinity which subsists between persons of 
whom one is descended in a direct line from the other; 
as between a particular person and his father, grandfa
ther, great-grandfather, and so upward, in the direct 
ascending line; or between the same person and his son, 
grandson, great-grandson, and so downwards in the di
rect descending line. See Descent. 
Lineal descendent. A person in the direct line of de
scent such as a child or grandchild as contrasted with a 
collateral descendent such as a niece. 
Lineal descent. See Descent. 
Lineal heir /liniy�l e(y�)r/. One who inherits in a line 
either ascending or descending from a common source as 
distinguished from a collateral heir. Ferraro v. Augus
tine, 45 Ill.App.2d 295, 196 N.E.2d 16, 19. The words 
"lineal heirs" like "heirs of the body" mean all lineal 
descendants to the remotest posterity and are words of 
"inheritance" and not of "purchase", unless the instru
ment clearly shows that they were used in a restricted 
sense to denote "children". Sims v. Clayton, 193 S.C. 
98, 7 S.E.2d 724, 727. See also Heirs. 
Lineals. Blood relatives of decedent. 
Lineal warranty. A warranty by an ancestor from 
whom the title did or might have come to the heir. 
LINK 
Linea obliqua /liniy� �bhiykw�;o�bliykw�/. In the civil 
law, the oblique line. More commonly termed "linea 
transversalis. " 
Linea recta /liniy� rekt�/. The direct line; the vertical 
line. In computing degrees of kindred and the succes
sion to estates, this term denotes the direct line of 
ascendants and descendants. Where a person springs 
from another immediately, or mediately through a third 
person, they are said to be in the direct line (linea recta), 
and are called "ascendants" and "descendants." 
Linea recta est index sui et obliqui; lex est linea 
recti /liniy� rekt� est indeks s(y)uway et �blaykway; 
leks est liniy� rekt�/. A right line is a test of itself, and 
of an oblique; law is a line of right. 
Linea recta semper prrefertur transversali /liniy� 
rekt� semp�r pr�f;}rt�r trrenzv�rseylay /. The right line 
is always preferred to the collateral. 
Linea transversalis /liniy� trrenzv�rseyl�s/. A collat
eral, transverse, or oblique line. Where two persons are 
descended from a third, they are called "collaterals," 
and are said to be related in the collateral line (linea 
transversa or obliqua). 
Line of credit. See Line (Line of credit). 
Lines and corners. In deeds and surveys, boundary
lines and their angles with each other. 
Lineup. A police identification procedure by which the 
suspect in a crime is exhibited, along with others with 
similar physical characteristics, before the victim or 
witness to determine if he can be identified as having 
committed the offense. To be accepted as valid, the 
lineup must meet certain standards and be free of undue 
suggestiveness. U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 
1926, 18 L.Ed.2d 1149. If the standards are met, the 
person who has identified the defendant may so testify 
at trial. "Lineup" involves and requires lining up of a 
number of individuals from which one of those lined up 
may or may not be identified as committer of a crime 
and there cannot be a one-man lineup. Dozie v. State, 
49 Wis.2d 209, 181 N.W.2d 369, 371. 
Post-indictment lineups are considered to be a "crit
ical stage" of criminal proceedings at which the accused 
has the constitutional right to be represented by coun
sel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 
18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 
S.Ct. 1951, 18 L.Ed. 11 78. 
Though stationhouse lineup may be suggestive, it is 
admissible if under totality of circumstances victim's 
identification was reliable. Neil v. Biggers, 409 U.S. 
188, 93 S.Ct. 375, 34 L.Ed.2d 401. 
Compare ShOW-Up. 
Link. A unit in a connected series; anything which 
serves to connect or bind together the things which 
precede and follow it. Thus, we speak of a "link in the 
chain of title." Something which binds together, or 
connects, separate things; a part of a connected series;

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LINK 
a tie, a bond. City of Independence v. Board of Com'rs 
of Montgomery County, 140 Kan. 661, 38 P.2d 105, 106. 
As a unit of land measurement, see Land measure. 
Link-in-chain. The 5th Amendment (U.S.C onst.) privi
lege against self incrimination protects a witness not 
only from the requirement of answering questions which 
might call for directly incriminating answers but also 
from answers which might tie or link the defendant to 
criminal activity in the chain of evidence. Estes v. 
Potter, C.A.Tex., 183 F.2d 865. Immunity also protects 
one from such result. State v. Buchanan, Fla.App., 207 
So.2d 711, 717. 
Liquere /l;)kwiriy/. Lat. In the civil law, to be clear, 
evident, or satisfactory. When a judex was in doubt 
how to decide a case, he represented to the prretor, 
under oath, sibi non liquere (that it was not clear to 
him), and was thereupon discharged. 
Liquet /likw;)t/. It is clear or apparent; it appears. 
Satis liquet, it sufficiently appears. 
Liquid. Said of a business with a substantial amount 
(the amount is unspecified) of working capital, especially 
quick assets. See also Liquidity. 
Liquid assets. Cash, or assets readily convertible to 
cash. 
Liquidate. To pay and settle. To convert assets to cash. 
Farmers State Bank & Trust Co. v. Brady, 137 Tex. 39, 
152 S.W.2d 729, 732; Fleckner v. Bank of U. S., 21 U.S. 
(8 Wheat.) 338, 362, 5 L.Ed. 631. To adjust or settle a 
debt. Belden v. Modern Finance Co., Ohio App., 61 
N.E.2d 801, 804, 44 O.L.A. 163. To ascertain the 
amount, or the several amounts, of the liabilities of the 
debtor and apportion the assets toward discharge of the 
indebtedness, Farmers State Bank & Trust Co. v. Brady, 
137 Tex. 39, 152 S.W.2d 729, 732; to ascertain the 
balance due and to whom payable, State ex reI. Banister 
v. Cantley, 330 Mo. 943, 52 S.W.2d 397, 399; to assemble 
and mobilize the assets, settle with the creditors and the 
debtors and apportion the remaining assets, if any, 
among the stockholders or owners, United States v. 
Metcalf, C.c.A.Cal., 131 F.2d 677, 679; to clear up, State 
ex reI. Banister v. Cantley, 330 Mo. 943, 52 S.W.2d 397, 
399; Fleckner v. Bank of U. S., La., 21 U.S. (8 Wheat.) 
338, 362, 5 L.Ed. 631; to determine by agreement or 
litigation precise amount of indebtedness, Continental 
Ins. Co. v. Harris, 190 Ark. 111 0, 82 S.W.2d 841, 843; to 
discharge, Continental Ins. Co. v. Harris, 190 Ark. 111 0, 
82 S.W.2d 841, 843; to extinguish an indebtedness, Bel
den v. Modern Finance Co., Ohio App., 61 N.E.2d 801, 
804, 44 O.L.A. 163; to gather in the assets, convert them 
into cash and distribute them according to the legal 
rights of the parties interested; to lessen, Fleckner v. 
Bank of U. S. , La., 21 U.S. (8 Wheat.) 338, 362, 5 L.Ed. 
631; to make amount of indebtedness clear and certain, 
Continental Ins. Co. v. Harris, 190 Ark. 111 0, 82 S.W.2d 
841, 843; to reduce to precision in amount and to 
satisfy, State ex reI. Banister v. Cantley, 330 Mo. 943, 52 
S.W.2d 397, 399; to sell, Esser v. Chimel, 27 Del.Ch. 69, 
30 A.2d 685, 687; to "wind up" affairs of a business. See 
930 
also Bankr uptcy proceedings; Liquidation; Settle; Settle
ment. 
Liquidated. Ascertained; determined; fixed; settled; 
made clear or manifest. Cleared away; paid; dis
charged. Adjusted, certain, or settled. Murchison v. 
Levy Plumbing Co., Tex.Civ.App., 73 S.W.2d 967, 96B. 
Declared by the parties as to amount, U. S. v. Skinner & 
Eddy Corporation, D.C.Wash., 28 F.2d 373, 386; made 
certain as to what and how much is due, Electrical 
Products Corporation of Oregon v. Ziegler Drug Stores, 
157 Or. 267, 71 P.2d 583, 584. Made certain or fixed by 
agreement of parties or by operation of law, Miller v. 
Prince Street Elevator Co., 41 N.M. 330, 68 P.2d 663, 
666. Settled, paid, discharged. Trenton Banking Co. v. 
Kennedy, 17 N.J.Misc. 222, 8 A.2d 232, 234. See also 
Liquidate; Liquidation; Settle; Settlement. 
Liquidated account. An account whereof the amount is 
certain and fixed, either by the act and agreement of the 
parties or by operation of law. Gasper v. Mayer, 171 
Okl. 457, 43 P.2d 467, 47 1; Williamson v. City of East
land, Tex.Civ.App., 65 S.W.2d 774, 775. 
Liquidated claim. Claim, amount of which has been 
agreed on by parties to action or is fixed by operation of 
law. Tapp v. Tapp's Trustee, 299 Ky. 345, 185 S.W.2d 
534, 535; United States Fidelity & Guaranty Co. v. 
American Bldg. Maintenance Co. of Los Angeles, 7 Cal. 
App.2d 683, 46 P.2d 984, 988. A claim which can be 
determined with exactness from parties' agreement or 
by arithmetical process or application of definite rules of 
law, without reliance on opinion or discretion. Lester 
N. Johnson Co., Inc. v. City of Spokane, 22 Wash.App. 
265, 588 P.2d 1214, 12 21. Claim for debt or damages is 
"liquidated" in character if amount thereof is fixed, has 
been agreed upon, or is capable of ascertainment by 
mathematical computation or operation of law. Robin
son v. Loyola Foundation, Inc., Fla.App., 236 So.2d 154, 
157. 
Liquidated damages. See Damages. 
Liquidated debt. A debt is liquidated when it is certain 
what is due and how much is due. That which has been 
made certain as to amount due by agreement of parties 
or by operation of law. Gasper v. Mayer, 171 Okl. 457, 
43 P.2d 467, 471. Compare Un liquidated debt. 
Liquidated demand. A demand the amount of which 
has been ascertained or settled by agreement of the 
parties, or otherwise. Williamson v. City of Eastland, 
Tex.Civ.App., 65 S.W.2d 774, 775. Amount claimed is a 
"liquidated demand" if it is susceptible of being made 
certain in amount by mathematical calculations from 
factors which are or ought to be in possession or knowl
edge of party to be charged. Rifkin v. Safenovitz, 131 
Conn. 411, 40 A.2d 188, 189. 
Liquidating distribution. A distribution by a partner
ship or corporation that is in complete liquidation of the 
entity's trade or business activities. Typically, such 
distributions generate capital gain or loss to the inves
tors without regard, for instance, to the earnings and 
profits of the corporation or to the partnership's basis in

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the distributed property. They can, however, lead to 
recognized gain or loss at the corporate level. See also 
Liquidating dividend; Liquidation. 
Liquidating dividend. A distribution of assets in the 
form of a dividend from a corporation that is reducing 
capital or going out of business. Such a payment may 
arise, for example, when management decides to sell off 
certain company assets and distribute the proceeds to 
the shareholders. Such a distribution may not be from 
current or retained earnings. See also Liquidating distri
bution. 
Liquidating partner. The partner who upon the disso
lution or insolvency of the firm, is appointed to settle its 
accounts, collect assets, adjust claims, and pay debts. 
Liquidating trust. A trust, the object of which is liqui
dation as soon as possible. Helvering v. Washburn, 
C.C.A.Minn., 99 F.2d 478. 
Liquidation. The act or process of settling or making 
clear, fixed, and determinate that which before was 
uncertain or unascertained. Payment, satisfaction, or 
collection; realization on assets and discharge of liabili
ties. To clear away (to lessen) a debt. Craddock-Terry 
Co. v. Powell, 180 Va. 242, 22 S.E.2d 30, 34. To pay or 
settle. In re Klink's Estate, 310 Ill.App. 609, 35 N.E.2d 
684, 687. To take over for collection. Belden v. Modern 
Finance Co., Ohio App., 61 N.E.2d 801, 804, 44 O.L.A. 
163. Winding up or settling with creditors and debtors. 
Wilson v. Superior Court in and for Santa Clara County, 
2 Cal.2d 632, 43 P.2d 286, 288. 
With respect to winding up of affairs of corporation, is 
process of reducing assets to cash, discharging liabilities 
and dividing surplus or loss. Occurs when a corporation 
distributes its net assets to its shareholders and ceases 
its legal existence. 
The settling of financial affairs of a business or indi
vidual, usually by liquidating (turning to cash) all assets 
for distribution to creditors, heirs, etc. It is to be 
distinguished from dissolution which is the end of the 
legal existence of a corporation. Liquidation may pre
cede or follow dissolution, depending upon statutes. 
See also Bankruptcy proceedings; Distressed sale; Dis
tribution in liquidation; Liquidate; Liquidated; Receiver
ship. 
One month liquidation. A special election available to 
certain shareholders of a corporation which determines 
how the distributions received in liquidation by the 
electing shareholders will be treated for Federal income 
tax purposes. In order to qualify for the election, the 
corporation must be completely liquidated within the 
time span of any one calendar month. I.R.C. § 333. 
Partial liquidation. A partial liquidation occurs when 
some of the corporation's assets are distributed to its 
shareholders (usually on a pro rata basis) and the corpo
ration continues doing business in a contracted form. 
Distributions of cash or property beyond the amount of 
earned surplus of a corporation is a partial liquidation. 
Tax implications. In a complete or partial liquidation of 
a corporation, amounts received by the shareholders in 
LIS ALIBI PENDENS 
exchange for their stock are usually treated as a sale or 
exchange of the stock resulting in capital gain or loss 
treatment. Special rules apply to one month liqui
dations, twelve month liquidations, and the liquidation 
of a subsidiary. 
Twelve-month liquidation. A provision of the Internal 
Revenue Code that requires a corporation selling proper
ty within the 12-month period from the adoption of a 
plan of liquidation to its complete liquidation to recog
nize no gain or loss on such sales. Generally, inventory 
is not included within the definition unless a bulk sale 
occurs. See I.R.C. § 337. 
Liquidation dividend. Act or operation in winding up 
affairs of firm or corporation, a settling with its debtors 
and creditors, and an appropriation and distribution to 
its stockholders ratably of the amount of profit and loss. 
Hellman v. Helvering, 63 App.D.C. 18, 68 F.2d 763, 765. 
See also Liquidating dividend. 
Liquidation price. A price paid for property sold to 
liquidate a debt. Usually less than market value since 
there is pressure to sell or a forced sale, either of which 
does not usually bring the highest price. Compare Going 
concern value. 
Liquidator. A person appointed to carry out the wind
ing up of a company. In England and Canada, a receiv
er who liquidates a corporation on dissolution. 
Liquid debt llikw;:)d det/. A debt immediately and 
unconditionally due. See Liquidated debt. 
Liquidity. The status or condition of a person or a 
business in terms of his or its ability to convert assets 
into cash. The degree to which an asset can be acquired 
or disposed of without danger of intervening loss in 
nominal value. Money is the most liquid asset. 
With respect to securities markets, refers to the mar
ket characteristic of a security or commodity with 
enough units outstanding and traded to allow large 
transactions to occur without a substantial variation in 
price. Most shares traded at the New York Stock Ex
change have liquidity. 
Liquor. Alcoholic beverage made by distillation; to be 
contrasted with wines which are made by fermentation. 
See also Alcoholic liquors; Intoxicating liquor. 
Liquor offenses. Generic term describing crimes con
nected with the use, sale or abuse of intoxicating liquor 
or the absence of a license to sell liquor (e.g. federal 
liquor traffic offenses, 18 U.S.C.A. § 1261 et seq.). See 
Dram Shop Acts; Driving while intoxicated. 
Lis llis/. Lat. A controversy or dispute; a suit or action 
at law. 
Lis alibi pendens llis rel;:)bay pendimz/. A suit pending 
elsewhere. The fact that proceedings are pending be
tween a plaintiff and defendant in one court in respect 
to a given matter is a ground for preventing the plaintiff 
from taking proceedings in another court against the 
same defendant for the same object arising out of the 
same cause of action.

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LIS MOTA 
Lis mota llis mowt;} I . A controversy moved or begun. 
By this term is meant a dispute which has arisen upon a 
point or question which afterwards forms the issue upon 
which legal proceedings are instituted. After such con
troversy has arisen (post litem motam), it is held, decla
rations as to pedigree, made by members of the family 
since deceased, are not admissible. 
Lis pendens llis p€mdEmz/. A pending suit. Jurisdic
tion, power, or control which courts acquire over proper
ty in litigation pending action and until final judgment. 
A common-law doctrine, now codified in many states 
so as to condition its effect on the filing of a notice, that 
binds a purchaser or encumbrancer of property to the 
results of any pending lawsuit which may affect the title 
to, any lien on, or possession of the property. Purpose 
of "lis pendens" is to notify prospective purchasers and 
encumbrancers that any interest acquired by them in 
property in litigation is subject to decision of court and 
while it is simply a notice of pending litigation the effect 
thereof on the owner of property is constraining. Beefy 
King Intern., Inc., v. Veigle, C.A.Fla., 464 F.2d 1102, 
1104. 
Notice of lis pendens. A notice filed on public records 
for the purpose of warning all persons that the title to 
certain property is in litigation,\ and that they are in 
danger of being bound by an adverse judgment. The 
notice is for the purpose of preserving rights pending 
litigation. Mitchell v. Federal Land Bank of St. Louis, 
206 Ark. 253, 174 S.W.2d 671, 674. This is termed a 
"notice of pendency" in New York. CPLR § 650l. 
List. A docket or calendar of cases ready for trial or 
argument, or of motions ready for hearing. Entering in 
an official list or schedule; as, to list property for 
taxation, to put into a list or catalogue, to register, to 
list a property with a real estate broker. Official regis
try of voters. See also Docket; Listing. 
Listed. Included in a list; put on a list; e.g. on a list of 
taxable persons or property. See Listing. 
Listed security. A security of a company that has met 
the registration requirements of the SEC and has been 
accepted for trading on a securities exchange, having 
complied with the rules of the stock exchange on which 
it is traded. Such requirements include submitting peri
odic financial reports and consenting to certain supervi
sion. "Unlisted" securities are traded on the over-the
counter markets. See also Listing (Securities), Offering. 
Dual listing. Listing of a security on more than one 
security exchange. 
Listed security exchanges. Organized secondary secur
ity markets that operate at designated places of busi
ness. The New York Stock Exchange (NYSE) is an 
example of a listed security exchange. 
Listers. This word is used in some of the states to 
designate the persons appointed to make lists of tax
abIes. 
Listing. Real estate. An agreement between an owner 
of real property and a real estate agent, whereby the 
932 
agent agrees to attempt to secure a buyer or tenant for 
specific property at a certain price and terms in return 
for a fee or commission. The various types of real estate 
listings are as follows: 
An open or general listing is the right to sell that may 
be given to more than one agent at a time. An exclu
sive agency listing is the right of one agent to be the 
only one other than the owner who may sell the prop
erty during a period of time. An exclusive authoriza
tion to sell listing is a written contract that gives one 
agent the sole right to sell the property during a time 
period. This means that even if the owner finds the 
buyer, the agent will get a commission. Multiple list
ing occurs when an agent with an exclusive listing 
shares information about the property sale with many 
members of a real estate association and shares the 
sale commission with an agent who finds the buyer. A 
net listing is an arrangement in which the seller sets a 
minimum price he or she will take for the property and 
the agent's commission is the amount the property sells 
for over that minimum selling price. Nonexclusive 
listing exists when the real estate broker has an exclu
sive listing as opposed to other agents, but the owner 
may sell the property without using an agent, and not 
be liable to pay a commission. Also called an agency 
agreement. An open listing obligates a seller to pay a 
commission when a specified broker makes a sale, but 
which reserves the right of the seller to sell his own 
property without paying a commission. Such listings 
may be given to any number of brokers on the same 
property. 
See also Brokerage listing; Multiple listing; Open listing. 
Securities. In securities, the contract between a firm 
and a stock exchange covering the trading of that firm's 
securities on the stock exchange. See also Listed securi
ty; Offering. 
Taxation. "Listing property for taxation" is the making 
of a schedule or inventory of such property, whereby 
owner makes statement of property in response to asses
sor's inquiries. Templing v. Bennett, 156 Kan. 68, 131 
P.2d 904, 907. The word listing ordinarily implies an 
official listing of the persons and property to be taxed, 
and a valuation of the property of each person as a basis 
of apportionment. 
Listing agent. The broker's representative who obtains 
a listing agreement with the seller, as opposed to the 
selling agent who may represent another broker. 
List of creditors. Documentation in the form of a list 
with names and addresses and amounts owed to credi
tors, required as a schedule in bankruptcy proceedings. 
List price. The published or advertised price of goods 
which may change after negotiation and be reduced by a 
discount or rebate for prompt payment or volume pur
chase. 
Litem denunciare Ilayt;}m d;}n;}nsiyeriy I. Lat. In the 
civil law, to cast the burden of a suit upon another; 
particularly used with reference to a purchaser of prop
erty who, being sued in respect to it by a third person,

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933 
gives notice to his vendor and demands his aid in its 
defense. 
Litem suam facere /layt�m s(y)uw�m fres�riy/. Lat. To 
make a suit his own. Where a judex, from partiality or 
enmity, evidently favored either of the parties, he was 
said litem suam fa cere. 
Lite pendente Ilaytiy p�ndentiy /. Lat. Pending the 
suit. 
Litera /lit�r�/. Lat. A letter. The letter of a law, as 
distinguished from its spirit. See Letter. 
Literacy. Term as generally defined requires both abili
ty to read and ability to write a language. Castro v. 
State, 2 C.3d 223, 85 Cal.Rptr. 20, 21, 466 P.2d 244. 
Literacy test. Test required in certain states as a pre
condition to right to vote. Such tests are unconstitu
tional if invidiously discriminatory. Lassiter v. North
hampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 
L.Ed.2d 1072. The Voting Rights Act of 1965 suspended 
such tests in states where less than half the adult 
population were registered or had voted in the previous 
election. 
Literre /lit�riy /. Letters. A term applied in old English 
law to various instruments in writing, public and pri
vate. 
Literre dimissorire /lit�riy dim�s6riyiy /. Dimissory let
ters (q.v.). 
Literre morture /lit�riy m6rtyuwiy /. Dead letters; ful
filling words of a statute. 
Literre patentes /lit�riy p�tentiyz/. Letters patent; lit
erally, open letters. 
Literre patentes regis non erunt vacure /lit�riy p�ten
tiyz riyj�s non er�nt vrekyuwiy /. The king's letters 
patent shall not be void. 
Literre procuratorire /lit�riy proky�r�t6riyiy / . In old 
English law, letters procuratory; letters of procuration; 
letters of attorney. 
Literre recognitionis /lit�riy rek�gnishiy6wn�s/ . In 
maritime law, a bill of lading. 
Literre scriptre manent /lit�riy skriptiy mren�nt/. Writ
ten words last. 
Literre sigillatre /lit�riy sij�leydiy/. In old English law, 
sealed letters. The return of a sheriff was so called. 
Literal /lit�r�l/. According to language; following ex
pression in words. A literal construction of a document 
adheres closelY,to its words, without making differences 
for extrinsic circumstances; a literal performance of a 
condition is one which complies exactly with its terms. 
Literal construction. The interpretation of a document 
according to its words alone without any consideration 
of the intent of the parties who drafted or signed it 
beyond the fact that they used such language. 
Literal contract. In Roman law, a species of written 
contract, in which the formal act by which an obligation 
was superinduced on the convention was an entry of the 
LITERIS OBLIGATIO 
sum due, where it should be specifically ascertained, on 
the debit side of a ledger. A contract, the whole of the 
evidence of which is reduced to writing, and binds the 
party who subscribed it, although he has received no 
consideration. 
Literal proof. In the civil law, written evidence. 
Literary /lit�rehriy / . Pertaining to literature; connect
ed with authors and the study or use of books and 
writings. 
Literary composition. An original result of mental 
production, developed in a series of written or printed 
words, arranged for an intelligent purpose, in an orderly 
succession of expressive combinations. See also Literary 
work. 
Literary property. The right which entitles an author 
and his assigns to all the use and profit of his composi
tion, to which no independent right is, through any act 
or omission on his or their part, vested in another 
person. The exclusive right of owner to possess, use and 
dispose of intellectual productions. The term denotes 
the corporal property in which an intellectual produc
tion is embodied; and it may consist of letters, lectures, 
sermons or addresses. Carpenter Foundation v. Oakes, 
26 Cal.App.3d 784, 103 Cal.Rptr. 368, 375. See also 
Copyright; Literary work. 
Literary work. Under Copyright Act, "literary works" 
are works, other than audiovisual works, expressed in 
words, numbers, or other verbal or numerical symbols or 
indicia, regardless of the nature of the material objects, 
such as books, periodicals, manuscripts, phonorecords, 
film, tapes, disks, or cards in which they are embodied. 
17 U.S.C.A. § 101. 
Literate. A person is literate if he can read and write a 
language. Knowledgable and educated. 
Literatura /lit�r�t(y)ur�/. f�d literaturam ponere" 
means to put children to school. This liberty was an
ciently denied to those parents who were servile tenants, 
without the lord's consent. The prohibition against the 
education of sons arose from the fear that the son, being 
bred to letters, might enter into holy orders, and so stop 
or divert the services which he might otherwise do as 
heir to his father. 
Literis obligatio /lit�r�s obl�geysh(iy)ow/. In Roman 
law, the contract of nomen, which was constituted by 
writing (scriptura). It was of two kinds, viz.: (1) A re in 
personam, when a transaction was transferred from the 
daybook (adversaria) into the ledger (codex) in the form 
of a debt under the name or heading of the purchaser or 
debtor (nomen); and (2) a persona in personam, where a 
debt already standing under one nomen or heading was 
transferred in the usual course of novatio from that 
nomen to another and substituted nomen. By reason of 
this transferring, these obligations were called "nomina 
transcriptia. " No money was, in fact, paid to constitute 
the contract. If ever money was paid, then the nomen 
was arcarium (i.e., a real contract, re contractus), and 
not a nomen proprium.

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LITIGANT 
Litigant. A party to a lawsuit (i.e. plaintiff or defen
dant); one engaged in litigation; usually spoken of ac
tive parties, not of nominal ones. 
Litigare /lit�geriy /. Lat. To litigate; to carry on a suit 
aitem agere), either as plaintiff or defendant; to claim or 
dispute by action; to test or try the validity of a claim 
by action. 
Litigate /lit�geyt/. To dispute or contend in form of 
law; to settle a dispute or seek relief in a court of law; 
to carry on a lawsuit. To bring into or engage in 
litigation; the act of carrying on a suit in a law court; a 
judicial contest; hence, any controversy that must be 
decided upon evidence in a court of law. To make the 
subject of a lawsuit; to contest in law; to prosecute or 
defend by pleadings, evidence, and debate in a court. 
Valley Exp., Inc. v. U. S., D.C.Wis., 264 F.Supp. 1006, 
1009. See also Adjudge; Adjudication. 
Litigation /lit�geysh�n/. A lawsuit. Legal action, in
cluding all proceedings therein. Contest in a court of 
law for the purpose of enforcing a right or seeking a 
remedy. A judicial contest, a judicial controversy, a suit 
at law. 
Litigious /l�tij�s/. That which is the subject of a law
suit or action; that which is contested in a court of law. 
In another sense, "litigious" signifies fond of litigation; 
prone to engage in suits. 
Litigious right /l�tij�s rayt/. In the civil law, a right 
which cannot be exercised without undergoing a lawsuit. 
Civil Code La. art. 3556, par. 18. 
A right, to be considered "litigious" under Louisiana 
law, must be in litigation at time of the sale thereof, and 
ceases to be litigious if at time of the sale judgment has 
become final. Saucier v. Crichton, C.C.A.La., 147 F.2d 
430, 435. 
Litis restimatio /layt�s est�meysh(iy)ow/. Lat. The 
measure of damages. 
Litis contestatio /layt�s kont�steysh(iy)ow /. Lat. 
Civil and Canon Law. Contestation of suit; the process 
of contesting a suit by the opposing statements of the 
respective parties; the process of coming to an issue; 
the attainment of an issue; the issue itself. 
Ecclesiastical Courts. The general answer made by the 
defendant, in which he denied the matter charged 
against him in the libel. 
Litis denunciatio /layt�s d�n�nsiyeysh(iy)ow/. Lat. In 
old civil law , the process by which a purchaser of proper
ty, who is sued for its possession or recovery by a third 
person, falls back upon his vendor's covenant of warran
ty, by giving the latter notice of the action and demand
ing his aid in defending it. 
Litis dominium /layt�s d�miniy�m/. Lat. In old civil 
law, ownership, control, or direction of a suit. A fiction 
of law by which the employment of an attorney or 
proctor (procurator) in a suit was authorized or justified, 
he being supposed to become, by the appointment of his 
principal (dominus) or client, the dominus litis. 
934 
Litis nomen omnem actionem significat, sive in rem, 
sive in personam sit /layt�s n6wm�n 6mn�m 
rekshiy6wn�m s�gnif�k�t, sayviy in rem, sayviy in 
p�rs6wn�m sit!. A lawsuit signifies every action, 
whether it be in rem or in personam. 
Litispendence /layt�spend�ns/. An obsolete term for 
the time during which a lawsuit is going on. 
Litre /liyt�r/. Fr. A measure of capacity in the metric 
system, being a cubic decimetre, equal to 61.022 cubic 
inches, or 2.113 American pints, or 1.76 English pints. 
Littering. Littering is dumping, throwing, placing, de
positing or leaving, or causing to be dumped, thrown, 
deposited or left any refuse of any kind or any object or 
substance which tends to pollute, mar or deface, into, 
upon or about: (a) Any public street, highway, alley, 
road, right-of-way, park or other public place, or any 
lake, stream, watercourse, or other body of water, except 
by direction of some public officer or employee autho
rized by law to direct or permit such acts; or (b) Any 
private property without the consent of the owner or 
occupant of such property. 
Littoral. Belonging to shore, as of seas and great lakes. 
Wernberg v. State, Alaska, 516 P.2d 11 91, 11 95. 
Littoral land. Land bordering ocean, sea, or lake. 
Littoral rights. Rights concerning properties abutting 
an ocean, sea or lake rather than a river or stream 
(riparian). Littoral rights are usually concerned with 
the use and enjoyment of the shore. See Water rights 
(Water rights). 
Litura /bt(y)ur�/. Lat. In the civil law, an obliteration 
or blot in a will or other instrument. 
Litus /layt�s/. In civil law, the bank of a stream or 
shore of the sea; the coast. 
In old European law, a kind of servant; one who 
surrendered himself into another's power. 
Litus est quousque maximus fluctus a mari pervenit 
/layt�s est kwow;}skwiy mreks�m�s fl;}kt�s ey mreray 
p�rviyn�t!. The shore is where the highest wave from 
the sea has reached. 
Litus maris /layt�s mrer�s/. The sea-shore. 
Live, adj. Having or possessing life. See also Alive; Life. 
Live, v. To live in a place, is to reside there, to abide 
there, to occupy as one's home. Leroux v. Industrial 
Accident Commission of California, 140 Cal.App. 569, 35 
P.2d 624, 626. See also Domicile; Living; Residence. 
Live and cohabit together as husband and wife. As 
applied to common-law marriages, means a living to
gether, claiming to be married, in the relationship of 
husband and wife. Drummond v. Benson, Tex.Civ.App., 
133 S.W.2d 154, 159. 
Livelihood. Means of support or subsistence. 
Livelode. Maintenance; support. 
Livery /liv(�)riy/. In old English law, delivery of posses
sion of their lands to the king's tenants in capite or 
tenants by knight's service. A wr it which could be sued

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935 
out by a ward in chivalry, on reaching his majority, to 
obtain delivery of the possession of his lands out of the 
hands of the guardian. 
Act of delivering legal possession of property. See 
Livery of seisin. 
A particular dress or garb appropriate or peculiar to 
certain persons, as the members of a guild, or, more 
particularly, the servants of a nobleman or gentleman. 
The privilege of a particular guild or company of 
persons, the members thereof being called "livery-men." 
A contract of hiring out of work-beasts, particularly 
horses, to the use of the hirer. It is commonly used in 
the compound, "livery-stable." Feeding, stabling, and 
care of horses for pay. Rental of vehicles, boats, etc. 
Word "livery" as used in automobile policy excluding 
coverage for automobile while being used as a livery 
conveyance means the hiring out of horses and carriages 
or a concern offering vehicles of various kinds for rent. 
Gagnard v. Thibodeaux, La.App., 336 So.2d 1069, 1070. 
Livery conveyance. A vehicle used indiscriminately in 
conveying the public, without limitation to certain per
sons or particular occasions or without being governed 
by special terms. Elliott v. Behner, 150 Kan. 876, 96 
P.2d 852, 857. 
Livery in chivalry. In feudal law, the delivery of the 
lands of a ward in chivalry out of the guardian's hands, 
upon the heir's attaining the requisite age,-twenty-one 
for males, sixteen for females. 2 Bl.Comm. 68. 
Livery office. An office appointed for the delivery of 
lands. 
Livery of seisin /liv(�)riy �v siyz�n/. The appropriate 
ceremony, at common law, for transferring the corporal 
possession of lands or tenements by a grantor to his 
grantee. It was livery in deed where the parties went 
together upon the land, and there a twig, clod, key, or 
other symbol was delivered in the name of the whole. 
Livery in law was where the same ceremony was per
formed, not upon the land itself, but in sight of it. 2 
Bl.Comm. 315, 316. 
Lives in being. As used in rule against perpetuities, 
means any lives in being at any time future interest is 
created, regardless of personal interest therein. 
Livestock. Domestic animals used or raised on a farm. 
Boland v. Cecil, 65 Cal.App.2d 832, 150 P.2d 819, 822. 
The term in its generic sense includes all domestic 
animals. Meader v. Unemployment Compensation Divi
sion of Industrial Accident Board, 64 Idaho 716, 136 P.2d 
984, 987. It includes fur bearing animals raised in 
captivity. Fromm Bros. v. United States, D.C.Wis., 35 
F.Supp. 145, 147. 
Livestock insurance. See Insurance. 
Live storage. As applied to storage of automobiles in 
garages, "dead storage" is where cars not in use are 
deposited or put away, sometimes for the season, and 
"live storage" is the storage of cars in active daily use. 
Hogan v. O'Brien, 123 Misc. 865, 206 N.Y.S. 831, 832, 
affirmed 212 App.Div. 193, 208 N.Y.S. 477. The extent 
L.J. 
of responsibility of a garage keeper for cars put in his 
garage sometimes depends on whether they are in ttdead 
storage" or «<live storage." 
Living. Existing, surviving, or continuing in operation. 
Also means to abide, to dwell, to reside and literally 
signifies the pecuniary resources by means of which one 
exists. Leroux v. Industrial Accident Commission of 
Calif ornia, 140 Cal.App. 569, 35 P.2d 624, 626. See also 
Alive; Domicile; Life; Residence; Viable. 
Living apart. To live in a separate abode. McDaniel v. 
McDaniel, 292 Ky. 56, 165 S.W.2d 966, 967. See also 
Living separate and apart. 
Living at time of another's death. Remaining in life 
after such other person's death (e.g. surviving spouse). 
Sabit v. Safe Deposit & Trust Co. of Baltimore, 184 Md. 
24, 40 A.2d 231, 238. See Survivor. 
Living in open and notorious adultery. To constitute, 
parties must dwell together openly and notoriously as if 
conjugal relation existed between them. People v. Pot
ter, 319 Ill. App. 409, 49 N.E.2d 307, 309. The parties 
must reside together in face of society as if conjugal 
relations existed between them, and fact of their so 
living and that they are not husband and wife must be 
known in community in which they reside. Mathis v. 
State, 60 Okl.Cr. 58, 61 P.2d 261, 267. 
Living issue. Living children. 
Living separate and apart. Exists where the spouses 
have come to a parting of the ways and have no present 
intention of resuming marital relations and taking up 
life together under the same roof, not where they are 
residing temporarily in different places for economic or 
social reasons. Woodall v. Commissioner of Internal 
Revenue, C.C.A.9, 105 F.2d 474, 477. This is a no-fault 
ground for divorce in many states when the spouses 
have lived apart for the statutorily prescribed period. 
Living together. As respects court's right to allow suit 
money to wife in divorce action, means dwelling togeth
er in same house, eating at same table, the two parties 
holding themselves out to world and conducting them
selves toward each other as husband and wife. Lipp v. 
Lipp, Mo.App., 117 S.W.2d 364-366. 
Living trust. Trust which is operative during life of 
settlor; an active or inter vivos trust. 
Living will. See Will. 
Living with husband. Means to dwell, to reside, to 
make one's abiding place or home with him, and may 
also mean to cohabit. Living together as husband and 
wife in ordinary acceptation of words in common under
standing; maintaining a home and living together in 
same household or actually cohabiting under conditions 
which would be regarded as constituting a family rela
tion. McPadden v. Morris, 126 Conn. 654, 13 A.2d 679, 
680. 
L.J. An abbreviation for "Law Judge;" also for "Law 
Journal."

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LL 
LL. The reduplicated form of the abbreviation "L." for 
"law," used as a plural. It is generally used in citing old 
collections of statute law; as "LL. Hen. I." 
L.L. (Also L.Lat.) and L.F. (also L.Fr.) are used as 
abbreviations of the terms "Law Latin" and "Law 
French." 
LL.B., LL.M., and LL.D. Abbreviations used to denote, 
respectively, the three academic degrees in law,-bach
elor, master, and doctor of laws; the latter commonly 
being an honorary degree. See also J.D. 
Lloyd's association. See Lloyd's underwriters. 
Lloyd's bonds. The name of a class of evidences of debt, 
used in England; being acknowledgments, by a borrow
ing company made under its seal, of a debt incurred and 
actually due by the company to a contractor or other 
person for work done, goods supplied, or otherwise, as 
the case may be, with a covenant for payment of the 
principal and interest at a future time, as distinct from 
a security for a present advance; thus its issuance does 
not depend on the borrowing power of the company. 
Lloyd's insurance. Under this type of insurance, insur
ers are such as individuals and not as a corporate 
insurance company and the liability for loss is several 
and not joint. Jones v. Hollywood Style Shop, Tex.Civ. 
App., 62 S.W.2d 167. The "Lloyds' Plan," contemplates 
individual liability of the several underwriters. Harris 
v. Prince, 132 Tex. 231, 121 S.W.2d 983, 986. See also 
Lloyd's of London; Lloyd's underwriters; London L1oyds. 
Lloyd's of London. An association in the city of Lon
don, originally for the transaction of marine insurance, 
the members of which underwrite one another's policies. 
An insurance mart in London at which individual un
derwriters gather to quote rates and write insurance on 
the widest variety of risks. See also London L1oyds. 
Lloyd's underwriters. Any aggregation of individuals, 
who under a common name engage in the business of 
insurance for profit through an attorney-in-fact having 
authority to obligate the underwriters severally, within 
such limits as may be lawfully specified in the power of 
attorney, on contracts of insurance made or issued by 
such attorney-in-fact, in the name of such aggregation of 
individuals, to and with any person or persons insured. 
N.Y.C onsol. Laws, Insurance § 425. 
Load. The portion of the offering price of shares of 
mutual fund open-end investment companies that covers 
sales commissions and all other costs of distribution. 
Load fund. See Load; Mutual Fund. 
Loading. The act of putting a load on or in; as to load a 
car or a vessel. 
The difference between gross and net premiums on 
insurance policies. Metropolitan Life Ins. Co. v. Rouil
lard, 92 N.H. 16, 24 A.2d 264, 266; Magers v. Northwest
ern Mut. Life Ins. Co., 348 Mo. 96, 152 S.W.2d 148, 150. 
In insurance, that portion of the premium used for 
meeting selling and administrative expenses beyond 
that portion required to meet the liability reserve. In 
936 
an open-end investment company, that portion of the 
price of the share added to cover selling expenses. 
Load line. The depth to which a ship will sink in salt 
water when loaded. A design, painted on each side of 
vessel, intended as a guide to determine safe loading 
depth under various conditions. The Indien, C.C.A.Cal., 
71 F.2d 752, 759. 
Loadmanage. The pay to loadsmen; that is, persons 
who sail before ships, in barks or small vessels, with 
instruments for towing the ship and directing her 
course, in order that she may escape the dangers in her 
way. 
Loaf. To spend time in idleness, to lounge or loiter 
about or along. City of Olathe v. Lauck, 156 Kan. 637, 
135 P.2d 549, 551. See also Malinger. 
Loan. A lending. Delivery by one party to and receipt 
by another party of sum of money upon agreement, 
express or implied, to repay it with or without interest. 
Boerner v. Colwell Co., 21 Cal. 3d 37, 145 Cal.Rptr. 380, 
384, 577 P.2d 200. Anything furnished for temporary 
use to a person at his request, on condition that it shall 
be returned, or its equivalent in kind, with or without 
compensation for its use. Liberty Nat. Bank & Trust 
Co. v. Travelers Indem. Co., 58 Misc.2d 443, 295 N.Y. 
S.2d 983, 986. 
Bailment without reward, consisting of the delivery of 
an article by the owner to another person, to be used by 
the latter gratuitously, and returned either in specie or 
in kind. A borrowing of money or other personal prop
erty by a person who promises to return it. 
"Loan" includes: (1) the creation of debt by the lend
er's payment of or agreement to pay money to the 
debtor or to a third party for the account of the debtor; 
(2) the creation of debt by a credit to an account with 
the lender upon which the debtor is entitled to draw 
immediately; (3) the creation of debt pursuant to a 
lender credit card or similar arrangement; and (4) the 
forbearance of debt arising from a loan. Uniform Con
sumer Credit Code, § 3-106. 
See also Conventional loan; Equity loan; Fixed rate loan; 
Morning loan; Participation loan. For term loan, see Term. 
Amortized loan. One which calls for periodic payments 
which are applied first to interest and then to principal 
as provided by the terms of the note. 
Bridge loan. Short term loan needed to cover down 
payment and costs associated with purchase or construc
tion of new home pending sale of existing home. See 
Bridge loan; also Construction loan, below. 
Call loan. One which is payable on demand or call by 
the lender. 
Collateral loan. One which is secured by property or 
securities. See Secured loan. 
Commercial loan. Generally a short term loan for 30 to 
90 days given by financial institutions.

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937 
Commodity loan. One which is secured by a commodity 
such as cotton or wool in the form of a warehouse 
receipt or other negotiable instrument. 
Consolidation loan. A borrowing in which the proceeds 
of the loan are used to pay off other individual loans and 
create a more manageable debt. 
Construction loan. Short-term interim loan for financ
ing cost of building construction. Payments are made 
periodically as work is completed with repayment usual
ly made from permanent mortgage funds secured by 
completed structure. Also referred to as bridge loan, 
above. 
Consumer loan. One which is made or extended to a 
natural person for family, household, personal or agri
cultural purposes and generally governed by truth-in
lending statutes and regulations. 
Day loan. One made to a broker on a day to day basis 
to finance his daily transactions. 
Demand loan. One on which the lender may make 
demand or call at any time for repayment. See also 
Call loan, above. 
Equity loan. See that topic. 
Ins tallment loan. One which is repaid according to its 
terms over a period of time in installments. 
Non-performing loan. An outstanding loan that is not 
being repaid, i.e. neither payments on interest or princi
pal are being made. 
Non-recourse loan. Loans made to farmers by a govern
ment organization in exchange for a particular commod
ity; e.g. wheat or corn. They are called nonrecourse 
because the government can never demand payment for 
the loan. 
Personal loan. One which is generally for a short period 
of time for personal as contrasted with commercial 
purposes. It may be secured or unsecured. See also 
Consumer loan, above. 
Secured loan. One which is secured by property or 
securities. See also Collateral loan, above. 
Short-term loan. One which runs for a period of less 
than a year and which is commonly evidenced by a note 
or other negotiable instrument. 
Time loan. One which is made for a fixed period of time 
and which generally may not be repaid before the expi
ration of such time (without penalty) as distinguished 
from a call or demand loan. 
Loan association. See Buildin g and loan association. 
Loan certificates. Certificates issued by a clearing
house to the associated banks to a specified per cent. of 
the value of the collaterals deposited by the borrowing 
banks with the loan committee of the clearing-house. 
Documents issued by a borrower to evidence partic
ipation in a loan for an extended term; formerly used by 
municipalities. These have been replaced, in the main, 
by coupon bonds. See also Certificate of indebtedness. 
LOAN FOR USE 
Loan commitment. Commitment to borrower by lend
ing institution that it will loan a specific amount at a 
certain rate on a particular piece of real estate. Such 
commitment is usually limited to a specified time period 
(e.g. four months), which is commonly based on the 
estimated time that it will take the borrower to con
struct or purchase the home contemplated by the loan. 
See also Mortgage commitment. 
Loaned employee or servant. Loaned servant is an 
employee who is loaned or hired out to another employ
er for some specific service or particular transaction and 
who is under exclusive control of that employer who 
may then be held vicariously liable for acts of employee 
under ordinary principles of respondeat superior. Kief
er Concrete, Inc. v. Hoffman, Colo., 562 P.2d 745, 746. 
Whether an employee should be regarded as a "loaned 
employee" in the service of a special employer, or 
whether he should be regarded as remaining in the 
service of his g�neral employer, depends upon in whose 
work the employee was engaged at the time of injury. 
Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 
498-500. 
Loaned servant doctrine. Under the "loaned servant 
doctrine", when one lends his employee to another for a 
particular employment, employee, for anything done in 
that employment, must be dealt with as employee of one 
to whom he is lent. Blair v. Durham, C.C.A.Tenn., 134 
F.2d 729, 732. This doctrine provides that if employer 
loans employee to another for performance of some 
special service, then that employee, with respect to that 
special service, may become employee of party to whom 
his services have been loaned. Danek v. Meldrum Mfg. 
and Engineering Co., Inc., Minn., 252 N.W.2d 255, 258. 
In order for employee to be a "loaned servant", it is not 
essential that general employer relinquish full control 
over his employee, or that special employee be complete
ly subservient to borrower. U. S. v. N. A. Degerstrom, 
Inc., C.A.Wash., 408 F.2d 1130, 1138. 
Loan for consumption. An agreement by which one 
person delivers to another a certain quantity of things 
which are consumed by the borrower, with the obli
gation to return as much of the same kind and quality. 
See also Loan for use. 
Loan for exchange. A loan for exchange is a contract 
by which one delivers personal property to another; and 
the latter agrees to return to the lender a similar thing 
at a future time, without reward for its use. Cal. Civil 
Code § 1902. 
Loan for use. The loan for use is an agreement by 
which a person delivers a thing to another, to use it 
according to its natural destination, or according to the 
agreement, under the obligation on the part of the 
borrower, to return it after he shall be done using it. 
Civ.Code La. art. 2893. A loan for use is a contract by 
which one gives to another the temporary possession 
and use of personal property, and the latter agrees to 
return the same thing to him at a future time, without 
reward for its use. Slack v. Bryam, 299 Ky. 132, 184 
S.W.2d 873, 876. Cal.Civil Code, § 1884. A loan for use

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LOAN FOR USE 
is the gratuitous grant of an article to another for use, 
to be returned in specie, and may be either for a certain 
time or indefinitely, and at the will of the grantor. 
Loan for use (called "commodatum" in the civil law) 
differs from a loan for consumption (called "mutuum " in 
the civil law), in this: that the commodatum must be 
specifically returned; the mutuum is to be returned in 
kind. In the case of a commodatum, the property in the 
thing remains in the lender; in a mutuum, the property 
passes to the borrower. 
Loan participation. Loan provided by a group of lend
ers to a single borrower, which spreads the default risk 
of the loan among all lenders in the group. 
Loan ratio. The ratio, expressed as a percentage, of the 
amount of a loan to the value or selling price of real 
property. Usually, the higher the percentage, the great
er the interest charged. Maximum percentages for 
banks, savings and loan, or government insured loans, is 
set by statute. See also Loan-to-value ratio. 
Loansharking. Practice of lending money at excessive 
and usurious interest rates, with the threat or employ
ment of extortionate means to enforce repayment of the 
loan. Such activities are termed "extortionate credit 
transactions" under Federal Criminal Code. 18 U.S. 
C.A. § 891 et seq. 
Loan societies. In English law, a kind of club formed 
for the purpose of advancing money on loan to the 
industrial classes. 
Loan-to-value ratio. The percentage of purchase price 
to be financed with a mortgage. Common ratios are 80 
and 90 percent. A down payment covers the rest of the 
purchase price. 
Loan value. The maximum amount which can be safely 
lent on property or life insurance consistent with the 
lender's rights to protection in the event of the borrow
er's default. 
Lobbying. All attempts including personal solicitation 
to induce legislators to vote in a certain way or to 
introduce legislation. It includes scrutiny of all pending 
bills which affect one's interest or the interests of one's 
clients, with a view towards influencing the passage or 
defeat of such legislation. Thiles v. County Board of 
Sarpy County, 189 Neb. 1, 200 N.W.2d 13, 18. Federal, 
and most state, statutes require that lobbyists be reg
istered. See Lobbying acts. 
Lobbying acts. Federal and state statutes governing 
conduct of lobbyists; e.g. Federal Regulation of Lobbying 
Act requires that lobbyists register with House and 
Senate and file quarterly reports of amount and source 
of payments received for lobbying activities. See 12 
U.S.C.A. § 261 et seq. 
Lobbyist. One who makes it a business to procure the 
passage or defeat of bills pending before a legislative 
body. See also Lobbying; Lobbying acts. 
L'obligation sans cause, ou sur une fausse cause, ou 
sur cause illicite, ne peut avoir aucun effet Ilowbli
gasyown son kowz, UW s�r (y)uwn fows kowz, UW s�r 
938 
k6wz ilisiyt n;) pyuwt ;)vwar owkyuwn ;)fey I. An obli
gation without consideration, or upon a false considera
tion (which fails), or upon unlawful consideration, can
not have any effect. 
Local. Relating to place, expressive of place; belonging 
or confined to a particular place. Distinguished from 
"general," "personal," "widespread" and "transitory." 
As to local Allegiance; Customs; Government; Tax and 
Venue, see those titles. 
Local act. See Local law. 
Local actions. Term embraces all actions in which the 
subject or thing sought to be recovered is in its nature 
local. Action which must be brought in jurisdiction of 
act or subject matter, as opposed to transitory action. 
Actions are "local" when the transactions on which they 
are based could not occur except in some particular 
place. One wherein all principal facts on which it is 
founded are of a local nature; as where possession of 
land is to be recovered, or damages for an actual tres
pass, or for waste affecting land, because in such case 
the cause of action relates to some particular locality, 
which usually also constitutes the venue of the action. 
A "transitory action" may be brought in any court of 
general jurisdiction in any district wherein defendant 
can be found and served with process, whereas in a 
"local action" the plaintiff must bring suit in the court 
designated, if not statutorily required to do otherwise. 
Moreland v. Rucker Pharmacal Co., D.C.La., 59 F.R.D. 
537, 540. Compare Transitory action. 
Local affairs. The "local affairs" over which regulation, 
management and control are delegated to cities are 
affairs within the jurisdiction of the city by the law of 
its being. Robia Holding Corporation v. Walker, 136 
Misc. 358, 239 N.Y.S. 659, 662. 
Local agent. An agent at a given place or within a 
definite district. Sharp & Dohme v. Waybourne, Tex. 
Civ.App., 74 S.W.2d 413. An agent may be a general 
agent as to his powers, although · he represents the 
company only in a particular locality or within a limited 
territory, and in the latter aspect is called a "local 
agent". Prudential Ins. Co. of America v. Jenkins, 290 
Ky. 802, 162 S.W.2d 791, 795. An agent placed in 
charge of corporation's local business for purpose of 
winding it up. One appointed to act as the representa
tive of a corporation and transact its business generally 
(or business of a particular character) at a given place or 
within a defined district. One who represents corpora
tion in promotion of business for which it was incorpo
rated, in county in which suit is fIled. National Hard
ware & Stove Co. v. Walters, Tex.Civ.App., 58 S.W.2d 
146. One who stands in shoes of corporation in relation 
to particular matters committed to his care and repre
sents corporation in its business in either a general or 
limited capacity. A "local agent" to receive and collect 
money means an agent residing either permanently or 
temporarily within the state for purpose of his agency. 
McDonald Service Co. v. Peoples Nat. Bank of Rock Hill, 
S.C. , 218 N.C. 533, 11 S.E.2d 556, 558. By statute or 
court rule in most states, service of process on a foreign

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939 
corporation may be made on a local agent of such 
corporation. See Fed.R. Civil P. 4; New York C.P.L.R. 
§§ 308, 31B. 
Local and special legislation. Term applies to special 
or particular places or special and particular person, 
and is distinguished from general statute in operation 
and relation to classes of persons or subjects. Madison 
County Board of Education v. Smith, 250 Ky. 495, 63 
S.W.2d 620. 
Local assessment. A charge in the nature of tax, levied 
to pay the whole or part of the cost of local improve
ments (e.g. sewers, sidewalks) and assessed upon the 
various parcels of property specially benefited thereby. 
See also Local improvement assessment. 
Local chattel. A thing is local that is fixed to the 
freehold. 
Local concern. An activity is of "local concern" if it is 
exercised by the municipality in its proprietary capacity. 
Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283, 285. 
Local courts. Courts whose jurisdiction is limited to a 
particular territory or district. The expression usually 
signifies the courts of the state, in opposition to the 
United States courts, or to municipal or county courts in 
contrast to courts with state-wide jurisdiction. 
Local government. City, county, or other governing 
body at a level smaller than a state. Local government 
has the greatest control over real property, zoning, and 
other local matters. 
Local improvement. A public improvement made in a 
particular locality, by which the real property adjoining 
or near such locality is specially benefited. Floyd v. 
Parker Water & Sewer Sub-District, 203 S.C. 276, 17 
S.E.2d 223, 227. 
Local improvement assessment. A charge placed upon 
lands within a given district to pay the benefits which 
the respective parcels of land derive from the improve
ment. Wells v. Union Oil Co. of California, 25 Cal. 
App.2d 165, 76 P.2d 696, 697. An assessment for con
struction of improvement; e.g. sewers. University Nat. 
Co. v. Grays Harbor County, 12 Wash.2d 549, 122 P.2d 
501, 502. 
Locality. A definite region in any part of space; geo
graphical position. Warnock v. Kraft, 30 Cal.App.2d 1, 
85 P .2d 505, 506. Place; vicinity; neighborhood; com
munity. Conley v. Valley Motor Transit Co., C.C.A. 
Ohio, 139 F.2d 692, 693; Lukens Steel Co. v. Perkins, 70 
App.D.C. 354, 107 F.2d 627, 631. See also Situs. 
Locality of a lawsuit. Place where judicial authority 
may be exercised. Neirbo Co. v. Bethlehem Shipbuild
ing Corporation, 308 U.S. 165, 60 S.Ct. 153, 154, 84 L.Ed. 
167. See also Venue. 
Localization. The doctrine that concerns the amount 
and nature of local activity of a foreign corporation 
sufficient to subject it to the laws of the state in which it 
operates. National Mutual Building and Loan Assoc. v. 
Brahan, 193 U.S. 635, 24 S.Ct. 532, 48 L.Ed. 823. 
LOCATE 
Local law. A local law is one which relates or operates 
over a particular locality instead of over the whole 
territory of the state. Ulrich v. Beatty, 139 Ind.App. 
174, 216 N.E.2d 737, 746. One which relates to particu
lar persons or things or to particular persons or things 
of a class or which operates on or over a portion of a 
class instead of all of the class. In re Annexation of 
Reno Quartermaster Depot Military Reservation to In
dependent School Dist. No. 34, Canadian County, Okl., 
180 Okl. 274, 69 P.2d 659, 662. 
The law of a particular jurisdiction as contrasted with 
the law of a foreign state. Term is used in conflicts to 
describe the power of the forum to determine questions 
of procedure while acknowledging the law of the situs to 
govern substantive questions. As used in the Restate
ment of this subject, the "local law" of a state is the 
body of standards, principles and rules, exclusive of its 
rules of conflict of laws, which the courts of that state 
apply in the decision of controversies brought before 
them. Restatement, Second, Conflicts, § 4(1). 
Local option. An option of self-determination available 
to a municipality or other governmental unit to deter
mine a particular course of action without specific ap
proval from state officials. Local option is often used in 
local elections to determine whether the selling and 
consumption of alcoholic beverages will be permitted in 
local areas. Such is also used in many states to permit 
home rule elections for determining the structures of 
local governmental units. See also Home rule. 
Local rules. Those promulgated in view of local physi
cal conditions in the state, the character of the people, 
their peculiar customs, usages, and beliefs. Term may 
also refer to court rules adopted by individual U.S. 
district courts which supplement Federal Rules of Civil 
Procedure. See Fed.R. Civil P. 83. 
Local statute. See Local law. 
Local usage. A practice or method of dealing regularly 
observed in a particular place and such that it may be 
considered by the court under certain circumstances in 
interpreting a document. See U.C.C. § 1-205(2), (3). See 
also Custom and usage. 
Locare /l�keriy /. To let for hire; to deliver or bail a 
thing for a certain reward or compensation. 
Locarium /bkeriy �m/. In old European law, the price 
of letting; money paid for the hire of a thing; rent. 
Locataire /lowk�ter/. In French law, a lessee, tenant, 
or renter. 
Locatarius /lowk�teriy�s/. Lat. A depositee. 
Locate. To find. To discover by survey. Guardian 
Trust Co. of Houston, Tex. v. Jefferson Lake Oil Co., 
C.C.A.La., 85 F.2d 465, 467. Also means to ascertain 
place in which something belongs. To ascertain and fix 
the position of something, the place of which was before 
uncertain or not manifest, as to locate the calls in a 
deed. To decide upon the place or direction to be 
occupied by something not yet in being, as to locate a 
road. To define location or limits, Delaware, L. & W. R.

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LOCATE 
Co. v. Chiara, C.C.A.N.J., 95 F.2d 663, 668; or designate 
site or place, Union Pac. R. Co. v. City of Los Angeles, 53 
Cal.App.2d 825, 128 P.2d 408, 410. To settle or become 
situated or established. 
Located. Having a physical presence or existence in a 
place. 
Locatio Ilowkeysh(iy)ow/. Lat. In the civil law, letting 
for hire. 
Locatio-conductio Ilowkeysh(iy)ow-k;md�ksh(iy)ow I. In 
the civil law a compound word used to denote the 
contract of bailment for hire, expressing the action of 
both parties, viz., a letting by the one and a hiring by 
the other. 
Locatio custodire /lowkeysh(iy)ow k;}st6wdiyiy I. A let
ting to keep; a bailment or deposit of goods for hire. 
According to the classification of bailments at civil law, 
a "locatio custodire" is the hiring of care and services to 
be bestowed on the thing delivered. 
Location. Site or place where something is or may be 
located. Act of locating. See also Situs. 
Mining law. The act of appropriating a mining claim 
(parcel of land containing precious metal in its soil or 
rock) according to certain established rules. It usually 
consists in placing on the ground, in a conspicuous 
position, a notice setting forth the name of the locator, 
the fact that it is thus taken or located, with the 
requisite description of the extent and boundaries of the 
parcel. St. Louis Smelting, etc., Co. v. Kemp, 104 U.S. 
649, 26 L.Ed. 875; Cole v. Ralph, 252 U.S. 286, 40 S.Ct. 
321, 326, 64 L.Ed. 567. In a secondary sense, the mining 
claim covered by a single act of appropriation or loca
tion. The act or series of acts whereby the boundaries 
of the claim are marked, etc., but it confers no right in 
the absence of discovery, both being essential to a valid 
claim. United States v. Mobley, D.C.Cal., 45 F.Supp. 
407, 410. See also Min ing claim; Mining location. 
Real property. The designation of the boundaries of a 
particular piece of land, either upon record or on the 
land itself. The finding, surveying and marking out the 
bounds of a particular tract of land or mining claims. 
See Locative calls. 
Locatio operis /lowkeysh(iy)ow 6(w)p;}r;}sl. In the civil 
law, the contract of hiring work, i.e., labor and services. 
It is a contract by which one of the parties gives a 
certain work to be performed by the other, who binds 
himself to do it for the price agreed between them, 
which he who gives the work to be done promises to pay 
to the other for doing it. 
Locatio operis faciendi Ilowkeysh(iy)ow 6(w)p;}r;}s 
freshiyenday I. A letting out of work to be done; a 
bailment of a thing for the purpose of having some work 
and labor or care and pains bestowed on it for a pecuni
ary recompense. 
Locatio operis mercium vehendarum /lowkeysh(iy)ow 
6(w)p;}r;}s m�rs(h)(i)y;}m viy(h);}nder;}m/. A letting of 
work to be done in the carrying of goods; a contract of 
940 
bailment by which goods are delivered to a person to 
carry for hire. 
Locatio rei Ilowkeysh(iy)ow riyay/. A letting of a thing 
to hire. The bailment or letting of a thing to be used by 
the bailee for a compensation to be paid by him. 
Locative calls. In a deed, patent, or other instrument 
containing a description of land, locative calls are specif
ic calls, descriptions, or marks of location, referring to 
landmarks, physical objects, or other points by which 
the land can be exactly located and identified. 
In harmonizing conflicting calls in a deed or survey of 
public lands, courts will ascertain which calls are loca
tive and which are merely directory, and conform the 
lines to the locative calls; "directory calls" being those 
which merely direct the neighborhood where the differ
ent calls may be found, whereas "locative calls" are 
those which serve to fix boundaries. 
Locator /l6wkeyt;}r/l;}keyt;}r/. One who locates land, or 
sets the boundaries of a mining claim, or intends or is 
entitled to locate. See Finder; Location. 
Locatum II;}keyt;}m/. A hiring. See Bailment. 
Lockdown. Temporary confinement of prisoners in 
their cells as security measure following escape, riot or 
other emergency. Permissible by compelling necessities 
of prison administration. See Bell v. Wolfish, 441 U.S. 
520, 99 S.Ct. 1861, 60 L.Ed.2d 447; Rhodes v. Chapman, 
452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59. 
Locked in. A predicament of one who has profits on 
securities which he owns but which he is unwilling to 
sell because of the liability for capital gains. A fixed 
rate of return on an investment or savings instrument, 
or an interest rate on a loan, rate is assured for a 
specified period of time. 
Lockout. Employer's withholding of work from employ
ees in order to gain concession from them; it is employ
er's counterpart of employee's strike. Smith v. Michi
gan Employment Sec. Commission, 410 Mich. 231, 301 
N.W.2d 285, 291. Refusal by employer to furnish avail
able work to its regular employees, whether refusal is 
motivated by employer's desire to protect itself against 
economic injury, by its desire to protect itself at bargain
ing table, or by both. Laclede Gas Co. v. N.L.R.B., 
C.A.Mo., 421 F.2d 610, 615. 
Lockup. A place of detention in a police station, court 
or other facility used for persons awaiting trial. 
In corporate law, a slang term that refers to the 
setting aside of securities for purchase by friendly inter
ests in order to defeat or make more difficult a takeover 
attempt. A lockup option is a takeover defensive mea
sure permitting a friendly suitor to purchase divisions of 
a corporation for a set price when any person or group 
acquires a certain percentage of corporation's shares. 
To be legal, such agreement must advance or stimulate 
the bidding process, so as to best serve the interests of 
the shareholders through encouraged competition. Ma
cAndrews & Forbes Holdings, Inc. v. Revlon, Inc., Del. 
Ch., 501 A.2d 1239, 1250. See also Poison pill; Porcupine 
provisions; White knight.

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941 
Lococession. The act of giving place. 
Loco parentis Ilowkow p�r{mt�s/. See In loco parentis. 
Locum tenens 116wk�m tiyn�nzrten 0 I. Lat. Holding 
the place, a deputy, substitute, lieutenant, or representa
tive. 
Locuples 116ky�pliyz/. Lat. In the civil law, able to 
respond in an action; good for the amount which the 
plaintiff might recover. 
Locus 116wk�s/. A place; the place where a thing is 
done. 
Locus contractus 1l6wk�s k�ntrrekt�s/. The place of a 
contract; the place where a contract is made. The place 
where the last act is performed which makes an agree
ment a binding contract. Grain Dealers Mut. Ins. Co. v. 
Van Buskirk, 241 Md. 58, 215 A.2d 467, 47 1. 
Locus contractus regit actum 116wk�s k�ntrrekt�s riyj�t 
rekt�m/. The place of the contract governs the act. 
Scudder v. Union Nat. Bank, 91 U.S. 406, 23 L.Ed. 245. 
See Lex loci. 
Locus criminis 116wk�s krim�n�s/. The locality of a 
crime; the place where a crime was committed. 
Locus delicti 116wk�s d�liktay I. The place of the of
fense; the place where an offense was committed. State 
where last event necessary to make actor liable occurs. 
Hunter v. Derby Foods, C.C.A.N.Y., 11 0 F.2d 970, 972. 
Locus in quo Ilowk�s in kwow I. The place in which. 
The place in which the cause of action arose, or where 
anything is alleged, in pleadings, to have been done. 
The phrase is most frequently used in actions of trespass 
quare clausum freg it. 
Locus partitus 116wk�s partayt�sl. In old English law, 
a place divided. A division made between two towns or 
counties to make out in which the land or place in 
question lies. 
Locus prenitentiae 1l6wk�s pen�tEmshiyiy I. A place for 
repentance; an opportunity for changing one's mind; an 
opportunity to undo what one has done; a chance to 
withdraw from a contemplated bargain or contract be
fore it results in a definite contractual liability; a right 
to withdraw from an incompleted transaction. Morris v. 
Johnson, 219 Ga. 81, 132 S.E.2d 45, 51. Also, used of a 
chance afforded to a person, by the circumstances, of 
relinquishing the intention which he has formed to 
commit a crime, before the perpetration thereof. 
Locus pro solutione reditus aut pecunire secundum 
conditionem dimissionis aut obligationis est stricte 
observandus 116wk�s prow s�I(y)uwshiy6wniy red�t�s ot 
p�kyuwniyiy s�k�nd�m k�ndishiy6wn�m d�mis(h)
iy6wn�s ot obl�geyshiy6wn�s est striktiy obs�rvrend�s/. 
The place for the payment of rent or money, according 
to the condition of a lease or bond, is to be strictly 
observed. 
Locus publicus Ilowk�s p�bbk�s/. In the civil law, a 
public place. 
Locus regit actum 116wk�s riyj�t rekt�m/. In private 
international law, the rule that, when a legal transac-
LODGING PLACE 
tion complies with the formalities required by the law of 
the country where it is done, it is also valid in the 
country where it is to be given effect, although by the 
law of that country other formalities are required. 
Locus rei sitre 1l6wk�s riyay saytiy I. The place where a 
thing is situated. In proceedings in rem, or the real 
actions of the civil law, the proper forum is the locus rei 
sitre. 
Locus sigilli 116wk�s s�jilay I. In place of the seal; the 
place occupied by the seal of written instruments. 
Usually abbreviated to "1.S." on documents in place of a 
seal. 
Locus standi 116wk�s strenday I. A place of standing; 
standing in court. A right of appearance in a court of 
justice, or before a legislative body, on a given question. 
Lode. Any zone or belt of mineralized rock lying within 
boundaries clearly separating it from neighboring rock. 
Bowen v. Chemi-Cote Perlite Corp., 5 Ariz.App. 28, 423 
P.2d 104, 11 7, 121, 123. 
Lodemanage 116wdmren�j/. The hire of a pilot for con
ducting a vessel from one place to another. 
Lodestar Rule. In determining amount of statutorily 
authorized attorneys' fees, "lodestar" is equal to number 
of hours reasonably expended multiplied by prevailing 
hourly rate in community for similar work and is then 
adjusted to reflect other fa�tors such as contingent na
ture of suit and quality of representation. Cooper Li
quor, Inc. v. Adolph Coors Co., C.A.Tex., 684 F.2d 1087, 
1092. See also Equal Access to Justice Act; Fee. 
Lodger. An occupant who has mere use without actual 
or exclusive possession. Roberts v. Casey, 36 Cal. 
App.2d, Supp. 767, 93 P.2d 654, 657, 658, 659; Coggins v. 
Gregorio, C.C.A.N.M., 97 F.2d 948, 951. Person who 
rents a furnished room or rooms. 
Lodger has been defined as a tenant of part of anoth
er's house, one who for time being has his home at his 
lodging place, one who has leave to inhabit another 
man's house, one who inhabits portion of a house of 
which another has general possession and custody, one 
who lives at board or in a hired room or who has a bed 
in another's house, one who lives in a hired room or 
rooms in house of another, one who occupies hired 
apartments in another's house. The term is also defined 
as a person who lives and sleeps in a place, a person 
whose occupancy is a part of a house and subordinate to 
and in some degree under the control of a landlord or 
his representative. The term is used to indicate a 
personal relationship of some one lodging somewhere 
with somebody. Marden v. Radford, 229 Mo.App. 789, 
84 S.W.2d 947, 955, 957, 959. 
Lodging house. A house where lodgings are let; houses 
containing furnished apartments which are let out by 
the week or by the month, without meals, or with 
limited meals. Marden v. Radford, 229 Mo.App. 789, 84 
S.W.2d 947, 955. 
Lodging place. A place of rest for a night or a residence 
for a time; a temporary habitation.

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LODGINGS 
Lodgings. Habitation in another's house; apartments 
in another's house, furnished or unfurnished, occupied 
for habitation; the occupier being termed a "lodger." 
Lods et ventes Ilow ey von/. In old French and Canadi
an law, a fine payable by a roturier on every change of 
ownership of his land; a mutation or alienation fine. 
Logbook. A ship's or aircraft's journal containing a 
detailed account of the ship's course, with a short histo
ry of every occurrence during the voyage. 
Logia /loj(iy)�/. A small house, lodge, or cottage. 
Logic. The science of reasoning, or of the operations of 
the understanding which are subservient to the estima
tion of evidence. The term includes both the process 
itself of proceeding from known truths to unknown, and 
all other intellectual operations, in so far as auxiliary to 
this. 
Logical relationship. Under "logical relationship" test 
for determining whether counterclaim is sufficiently re
lated to main claim to be compulsory, logical relation
ship is found when same operative facts serve as basis of 
both claims or aggregate core of facts upon which claim 
rests activates additional legal rights, otherwise dor
mant, in the defendant. U.S. v. Aronson, C.A.Fla., 617 
F.2d 11 9, 121. 
Logical relevancy. Existence of such a relationship in 
logic between the fact of which evidence is offered and a 
fact in issue that the existence of the former renders 
probable or improbable the existence of the latter. 
Logium /loj(iy)�m/. In old records, a lodge, hovel, or 
outhouse. 
Logographus Ilog�grref�s/. In Roman law, a public 
clerk, register, or book-keeper; one who wrote or kept 
books of accounts. 
Log rolling. A legislative practice of embracing in one 
bill several distinct matters, none of which, perhaps, 
could singly obtain the assent of the legislature, and 
then procuring its passage by a combination of the 
minorities in favor of each of the measures into a 
majority that will adopt them all. 
Practice of including in one statute or constitutional 
amendment more than one proposition, inducing voters 
to vote for all, notwithstanding they might not have 
voted for all if amendments or statutes had been sub
mitted separately. 
Loiter /loyt�r/. To be dilatory; to be slow in movement; 
to stand around or move slowly about; to stand idly 
around; to lag behind; to linger or spend time idly. 
Traditionally includes acts constituting vagrancy and as 
such, many ordinances have been struck as unconstitu
tionally vague. See Papachristou v. City of Jackson
ville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 11 0. See 
also Vagrancy. 
Term as used in statute prohibiting loitering or prowl
ing upon the private property of another, means to be 
slow in moving, to delay, to linger, to saunter, to lag 
behind. State ex reI. Purcell v. Superior Court In and 
942 
For Maricopa County, 111 Ariz. 582, 535 P.2d 1299, 
1301. 
Lombardian law. See Lex longobardorum. 
Lombards. A name given to the merchants of Italy, 
numbers of whom, during the twelfth and thirteenth 
centuries, were established as merchants and bankers in 
the principal cities of Europe. 
London Lloyds. Voluntary association of merchants, 
shipowners, underwriters, and brokers, which writes no 
policies, but, when broker for one wishing insurance 
posts particulars of risk, underwriting members wishing 
to so subscribe name and share of total that each wishes 
to take, and policy is issued when total is reached 
containing names of underwriters bound thereby and 
name of attorney in fact who handles insurance affairs 
of the group. See Lloyd's of London. 
Long. In various compound legal terms (see inf ra) this 
word carries a meaning not essentially different from its 
signification in the vernacular. 
Long account. An account involving numerous sepa
rate items or charges, on one side or both, or the 
statement of various complex transactions, such as a 
court of equity will refer to a master, referee or commis
sioner. 
Longa patientia trahitur ad consensum /lOIJg� presh
iyensh(iy)� trreh�t�r red k�nsens�m/. Long sufferance is 
construed as consent. 
Longa possessio est pacis jus /loIJg� p�zesh(iy)ow est 
peys�s j�s/. Long possession is the law of peace. 
Longa possessio jus parit /lOIJg� p�zesh(iy)ow j�s 
prer�t/. Long possession begets right. 
Longa possessio parit jus possidendi, et tollit action
em vero domino /lOIJg� p�zesh(iy)ow prer�t j�s 
p�sidiyenday, et tol�t rekshiyown�m virow dom�now/. 
Long possession produces the right of possession, and 
takes away from the true owner his action. 
Long arm statutes. Various state legislative acts which 
provide for personal jurisdiction, via substituted service 
of process, over persons or corporations which are non
residents of the state and which voluntarily go into the 
state, directly or by agent, or communicate with persons 
in the state, for limited purposes, in actions which 
concern claims relating to the performance or execution 
of those purposes, e.g. transacting business in the state, 
contracting to supply services or goods in the state, or 
selling goods outside the state when the seller knows 
that the goods will be used or consumed in the state. 
See International Shoe Co. v. State of Washington, 326 
U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. E.g. in New 
York, as to a cause of action arising from any of the 
following acts, the court may exercise personal jurisdic
tion over any nondomiciliary, or his executor or admin
istrator, who in person or through agent: (1) Transacts 
any business within state; (2) commits tortious act other 
than defamation within state; (3) commits tortious act, 
other than defamation, outside state causing injury to 
person or property within state, if such nondomiciliary

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943 
regularly does or solicits business, or engages in any 
other persistent course of conduct, or derives substantial 
revenue from goods used or consumed or services ren
dered within state; or (4) owns, uses, or possesses real 
property within state. N.Y.C onsol. Laws, CPLR § 302. 
See also Mass.G.L.A. c. 223A. See also Minimum con
tacts; Service (Service of process). 
Longevity pay. Extra compensation for longevity in 
actual service in the army or navy. U. S. v. Alger, 151 
U.S. 362, 14 S.Ct. 346, 38 L.Ed. 192; U. S. v. Stahl, 151 
U.S. 366, 14 S.Ct. 347, 38 L.Ed. 194. 
Long parliament. The name usually given to the par
liament which met in November, 1640, under Charles I., 
and was dissolved by Cromwell on the 10th of April, 
1653. The name "Long Parliament" is, however, also 
given to the parliament which met in 1661, after the 
restoration of the monarchy, and was dissolved on the 
30th of December, 1678. This latter parliament is some
times called, by way of distinction, the "long parliament 
of Charles II." 
Long position. The status of one who owns securities 
which he holds in expectation of a rise in the market or 
for income as contrasted with one who goes in and out of 
the market on a short point spread. 
In the language of the stock exchange, a broker or 
speculator is said to be "long" on stock, or as to a 
particular security, when he has in his possession or 
control an abundant supply of it, or a supply exceeding 
the amount which he has contracted to deliver, or, more 
particularly, when he has bought a supply of such stock 
or other security for future delivery, speculating on a 
considerable future advance in the market price. A 
trader is said to be "long" on the market when he takes 
the full price risk; i.e. gains if the market price goes up, 
and loses if it goes down. Valley Waste Mills v. Page, 
C.C.A.Ga., 11 5 F.2d 466, 467. 
Long robe. A metaphorical expression designating the 
practice of profession of the law; as, in the phrase 
"gentlemen of the long robe." 
Longshore and Harbor Workers' Compensation Act. 
Federal Act (33 U.S.C.A. § 901 et seq.) designed to 
provide workers' compensation benefits to employees, 
other than seamen, or private employers any of whose 
employees work in maritime employment upon the navi
gable waters of the United States (including any adjoin
ing pier, wharf, dry dock, terminal, building way, ma
rine railway, or other adjoining area customarily used 
by an employer in loading, unloading, repairing, or 
building a vessel). The principal employments subject 
to the Act are stevedoring and ship service operations. 
The Act is administered by the Office of Workers' Com
pensation Programs. 
Longshoreman. A maritime laborer, such as a steve
dore or loader, who works about wharves of a port. 
Duke v. Helena-Glendale Ferry Co., 203 Ark. 865, 159 
S.W.2d 74, 77. Person who loads and unloads ships. 
For federal compensation act covering seamen, see 
Jones Act. 
LOOPHOLE 
Long term capital gain. See Capital (Capital gain). 
Long term capital loss. See Capital (Capital loss). 
Long term debt. Term generally refers to debt with a 
maturity date beyond one year. 
Long term financing. A mortgage or deed of trust for a 
term of one year or more, as distinguished from con
struction, interim, or other short term loans. 
Long ton. A measure of weight equivalent to 20 hun
dred-weight of 112 pounds each, or 2,240 pounds, as 
distinguished from the "short" ton of 2,000 pounds. 
Longum tempus et longus usus qui excedit memoria 
hominum sufficit pro jure lloI)g;)m temp;)s et lOI)g;)s 
YUWS;)s kwliy ;)ksiyd;)t m;)moriy;) hom;)n;)m s;}f;)S;)t prow 
juriy / . Long time and long use, exceeding the memory 
of men, suffices for right. 
Look and listen. The requirement that a man shall 
"look and listen" before crossing street railroad track 
means only that he shall observe and estimate with 
reasonable accuracy his distance from the car and the 
speed of its oncoming, and then make calculation and 
comparison of the time it will take the car to come and 
the time it will take to cross the track. Kansas City 
Public Service Co. v. Knight, C.C.A.Kan., 11 6 F.2d 233, 
234. 
Lookout. The exercise of ordinary diligence requires 
that the driver of a motor vehicle be on the lookout for 
other travelers so that he may avoid placing himself or 
them in peril. As variously expressed, the rule requires 
that a motorist maintain a reasonable and proper look
out, which implies being watchful of the movements of 
the driver's own vehicle as well as of the movements of 
other traffic; a careful lookout; an efficient lookout; a 
vigilant watch ahead. A lookout must be made from the 
most effective place reasonably possible. The failure of 
a motorist to exercise ordinary care with respect to 
lookout, proximately resulting in injury or damage, may 
constitute negligence. Pickett v. Travelers Indem. Co., 
C.A.Wis., 283 F.2d 835. That watchfulness which pru
dent and reasonable person must maintain for his own 
safety and safety of others taking into consideration 
circumstances with which he is immediately concerned 
or confronted. Cobb v. Atkins, 239 Ark. 151, 388 S.W.2d 
8, 11. 
Generally, a "lookout" is a person, other than pilot, 
who has duty of observing sounds, lights, echoes and 
obstructions to navigation and he is generally stationed 
on the bow of the vessel. Clary Towing Co., Inc. v. Port 
Arthur Towing Co., D.C.Tex., 367 F.Supp. 6, 12. 
See also Proper lookout. 
Loophole. In taxation, a provision in the tax code by 
which a taxpayer may legally avoid or reduce his in
come taxes. For example, prior to the Tax Reform Act 
of 1986, a tax shelter was an effective loophole in 
reducing an individual's taxes; however, with the 
change in the law, the advantages of such shelters have 
been substantially reduced.

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LOQUELA 
Loquela /l;}kwiyl;}/. Lat. A colloquy; talk. In old 
English law, this term denoted the oral altercations of 
the parties to a suit, which led to the issue, now called 
the "pleadings." It also designated an "imparlance" 
(q.v.), both names evidently referring to the talking 
together of the parties. Loquela sine die, a postpone
ment to an indefinite time. 
Loquendum ut vulgus; sentiendum ut docti 
/1;}kwEmd;}m �t v�lg;}s, senshiYEmd;}m �t d6ktay/. We 
must speak as the common people; we must think as the 
learned. This maxim expresses the rule that, when 
words are used in a technical sense, they must be 
understood technically; otherwise, when they may be 
supposed to be used in their ordinary acceptation. 
Lord. A feudal superior or proprietor; one who granted 
a feudal estate in land to a tenant; one of whom a fee or 
estate is held. 
A title of honor or nobility belonging properly to the 
degree of baron, but applied also to the whole peerage, 
as in the expression "the House of Lords." 1 Bl.Comm. 
396-400. See House (House of Lords). 
A title of office, as lord mayor, lord commissioner, etc. 
Law lords. See Law. 
Lord and vassal. In the feudal system, the grantor, who 
retained the dominion or ultimate property, was called 
the "lord," and the grantee, who had only the use or 
possession, was called the "vassal" or "feudatory." 
Lord chief baron. The chief judge of the English court 
of exchequer, prior to the judicature acts. 
Lord chief justice. See Justice. 
Lord high chancellor. See Chancellor. 
Lord high steward. In England, when a person was 
impeached, or when a peer was tried on indictment for 
treason or felony before the house of lords, one of the 
lords was appointed lord high steward, and acted as 
speaker pro tempore. The privilege of peerage in crimi
nal proceedings was abolished in 1948. 
Lord high treasurer. An officer formerly existing in 
England, who had the charge of the royal revenues and 
customs duties, and of leasing the crown lands. His 
functions are now vested in the lords commissioners of 
the treasury. 
Lord in gross. In feudal law, he who is lord, not by 
reason of any manor, but as the king in respect of his 
crown, etc. "Very lord" is he who is immediate lord to 
his tenant; and "very tenant," he who holds immediate
ly of that lord. So that, where there is lord paramount, 
lord mesne, and tenant, the lord paramount is not very 
lord to the tenant. 
Lord keeper. Originally another name for the lord chan
cellor. After Henry II's reign they were sometimes 
divided, but now there cannot be a lord chancellor and 
lord keeper at the same time, for by St. 5 Eliz. c. 18, they 
are declared to be the same office. 
Lord lieutenant. In English law, the viceroy of the 
crown in Ireland. The principal military officer of a 
944 
county, originally appointed for the purpose of muster
ing the inhabitants for the defense of the country. 
Lord mayor. The chief officer of the corporation of the 
city of London was formerly so called. The origin of the 
appellation of "lord," which the mayor of London en
joyed was attributed to the fourth charter of Edward III, 
which conferred on that officer the honor of having 
maces, the same as royalty, carried before him by the 
sergeants. 
Lord mayor's court. In English law, this was a court of 
record, of law and equity, and was the chief court of 
justice within the corporation of London. Such was 
abolished by the Courts Act of 19 71. 
Lord of a manor. The grantee or owner of a manor. 
Lord paramount. A term applied to the King of Eng
land as the chief feudal proprietor, the theory of the 
feudal system being that all lands in the realm were 
held mediately or immediately from him. 
Lord' s day. A name sometimes given to Sunday. 
Lords justices of appeal. In English law, the title of the 
ordinary judges of the court of appeal, by Jud.Act 1877, 
§ 4. Prior to the judicature acts, there were two "lords 
justices of appeal in chancery," to whom an appeal lay 
from a vice-chancellor, by 14 & 15 Vict., c. 83. 
Lords of appeal. Those members of the house of lords of 
whom at least three must be present for the hearing and 
determination of appeals. They are the lord chancellor, 
the lords of appeal in ordinary, and such peers of par
liament as hold, or have held, high judicial offices, such 
as ex-chancellors and judges of the superior courts in 
Great Britain and Ireland. 
Lords of appeal in ordinary. These are appointed to aid 
the house of lords in the hearing of appeals. They rank 
as barons for life, but sit and vote in the house of lords 
during the tenure of their office only. 
Lords of parliament. Those who have seats in the house 
of lords. 
Lords ordainers. Lords appointed in 1312, in the reign 
of Edward II, for the control of the sovereign and the 
court party, and for the general reform and better 
government of the country. 
Lords spiritual. The archbishops and bishops who have 
seats in the house of lords. 
Lords temporal. Those lay peers who have seats in the 
house of lords. 
Lord Campbell Act. An act which fixes the maximum 
amount recoverable for wrongful death. Most states 
have such statutes. See Wrongful death statutes. 
In England, also refers to the Libel Act of 1843 which 
permits the defendant in a libel action to assert the 
defense of truth and that the publication was made for 
the benefit of the public. 
Lord Mansfield's Rule. Such rule renders inadmissible 
testimony by either spouse on the question of whether 
the husband had access to the wife at time of conception.

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945 
This Rule has been abandoned by several states as 
having outlived its original policy foundations. Serafin 
v. Serafin, 401 Mich. 629, 258 N.W.2d 46 1. 
Lordship. In English law, dominion, manor, seigniory, 
domain; also a title of honor used to a nobleman not 
being a duke. It is also the customary titulary appella
tion of the judges, and some other persons in authority 
and office. 
Lose. To bring to destruction; to ruin; to destroy; to 
suffer the loss of; to be deprived of; to part with, 
especially in an accidental or unforeseen manner; as to 
lose an eye. Logan v. Johnson, 218 N.C. 200, 10 S.E.2d 
653, 655. See also Lost; Mislay. 
Loss. Loss is a generic and relative term. It signifies 
the act of losing or the thing lost; it is not a word of 
limited, hard and fast meaning and has been held synon
ymous with, or equivalent to, "damage", "damages", 
"deprivation", "detriment", "injury", and "privation". 
Mason v. City of Albertville, 276 Ala. 68, 158 So.2d 924, 
927. 
It may mean expenses exceeding costs; actual losses, 
N. L. R. B. v. Cowell Portland Cement Co., C.C.A.9, 148 
F.2d 237, 246; bad and uncollectible accounts, damage, 
Wilbur v. U. S. ex reI. C. L. Wold Co., 58 App.D.C. 347, 
30 F.2d 871, 872; a decrease in value of resources or 
increase in liabilities; depletion or depreciation or de
struction of value; deprivation; destruction, Wells v. 
Thomas W. Garland, Inc., Mo.App., 39 S.W.2d 409, 411; 
detriment, United States v. City Nat. Bank of Duluth, 
D.C.Minn., 31 F.Supp. 530, 534, 535; failure to keep that 
which one has or thinks he has; injury, United Service 
Automobile Ass'n v. Miles, 139 Tex. 138, 161 S.W.2d 
1048; privation, United States v. City Nat. Bank of 
Duluth, D.C.Minn., 31 F.Supp. 530, 534, 535; ruin, Lo
gan v. Johnson, 218 N.C. 200, 10 S.E.2d 653, 655; shrink
age in value of estate or property; state or fact of being 
lost or destroyed, Logan v. Johnson, 218 N.C. 200, 10 
S.E.2d 653, 655; that which is gone and cannot be 
recovered or that which is withheld or that of which a 
party is dispossessed, Walker v. Thomas, 64 App.D.C. 
148, 75 F.2d 667, 669; Surety Co., 60 S.D. 100, 243 N.W. 
664, 666; unintentional parting with something of val
ue, Providence Journal Co. v. Broderick, C.C.A.R.I., 104 
F.2d 614, 616. 
The word in insurance policy in its common usage 
means a state of fact of being lost or destroyed, ruin or 
destruction. Sitzman v. National Life & Acc. Ins. Co., 
133 Ind.App. 578, 182 N.E.2d 448, 450. 
See also Actual loss; Capital (Capital loss); Casualty 
loss; Consequential loss; Constructive loss; Constructive 
total loss; Damages; Direct loss; Disaster loss; General 
average loss; Hobby loss; Net operating loss; Pain and 
suffering; Partial loss; Pecunia ry injury; Pecuniary loss; 
Reasonable certainty, rule of; Total loss. As to loss of 
consortium, see Consortium; salvage loss, see Salvage; 
proof of loss, see Proof. Compare Profit. 
Di sability benefi ts. State workers' compensation laws, 
social security, and disability insurance contracts pro-
Black's Law Dictionary 6th Ed.-21 
LOSS OF CONSORTIUM 
vide disability benefits for partial or permanent loss of 
use of limbs, eyes, etc. 
In surance, Ascertained liability of insurer, Michel v. 
American Fire & Casualty Co., C.C.A.Fla., 82 F.2d 583, 
586; decrease in value of resources or increase in liabili
ties; depletion or depreciation or destruction or shrink
age of value; injury, damage, etc., to property or persons 
injured; Miles v. United Services Automobile Ass'n, 
Tex.Civ.App., 149 S.W.2d 233, 235, 236; injury or dam
age sustained by insured in consequence of happening of 
one or more of the accidents or misfortunes against 
which insurer has undertaken to indemnify the insured; 
pecuniary injury resulting from the occurrence of the 
contingency insured against, Ocean Accident & Guaran
tee Corporation v. Southwestern Bell Telephone Co., 
C.C.A.Mo., 100 F.2d 441, 446. Word "loss" implies that 
property is no longer in existence. Littrell v. Alleman
nia Fire Ins. Co. of Pittsburgh, Pa., 222 App.Div. 302, 
226 N.Y.S. 243, 244. 
"Loss of eye" means loss of use for any practical 
purpose, Order of United Commercial Travelers of 
America v. Knorr, C.C.A.Kan., 11 2 F.2d 679, 682. Loss 
of member or loss of an entire member means destruc
tion of usefulness of member or entire member for 
purposes to which in its normal condition it is suscepti
ble of application, in absence of more specific definition. 
Loss of use of hand means substantial and material 
impairment of use in practical performance of its func
tion. Loss of use of member is equivalent to loss of 
member, Continental Casualty Co. v. Linn, 226 Ky. 328, 
10 S.W.2d 1079, 1082, Noel v. Continental Casualty Co., 
138 Kan. 136, 23 P.2d 610. Loss of vision to extent that 
one cannot perceive and distinguish objects is "loss of 
sight". 
To constitute "loss or damage by fire" existence of 
actual fire, which becomes uncontrollable or breaks out 
from where it was intended to be and becomes a hostile 
element, is sufficient. Princess Garment Co. v. Fire
man's Fund Ins. Co. of San Francisco, Cal., C.C.A.O hio, 
115 F.2d 380, 382. 
The word "loss" in insurance policy in its common 
usage means a state of fact of being lost or destroyed, 
ruin or destruction. Sitzman v. National Life & Acc. 
Ins. Co., 133 Ind.App. 578, 182 N.E.2d 448, 450. 
Loss carry-back. See Carry-back. 
Loss carry-over (or Carry forward). See Carry-over. 
Loss leader. Item sold by a merchant at very low price 
and sometimes below cost in order to attract people to 
store with the hope that they will buy additional items 
on which a profit will be made. See also Bait and switch. 
Loss of bargain. Under "loss of bargain" rule, applica
ble in common-law contract actions brought for misrep
resentations in the nature of breaches of warranty, 
damages are measured by difference between value of 
goods as warranted and value as received. Chrysler 
Corp. v. McMorries, Tex.App. 7 Dist., 657 S.W.2d 858, 
864. 
Loss of consortium. See Consortium.

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LOSS OF EARNING CAPACITY 
Loss of earning capacity. Damage to one's ability to 
earn wages in the future and recoverable as element of 
damage in tort actions. It is not the same as loss of 
earnings though loss of actual earnings is competent 
evidence of loss of earning capacity. A person unem
ployed at the time of the accident has an earning capaci
ty though he has no earnings. 
Loss payable clause. A clause in a fire insurance 
policy, listing the priority of claims in the event of 
destruction of the property insured. Generally, a mort
gagee, or beneficiary under a deed of trust, is the party 
appearing in the clause, being paid to the amount owing 
under the mortgage or deed of trust before the owner is 
paid. A provision in property insurance contracts that 
authorizes payments to persons other than the insured 
to the extent that they have an insurable interest in the 
property. 
Loss payee. Person named in insurance policy to be 
paid in event of loss or damage to property insured. 
Loss ratio. In insurance, the proportion between premi
ums collected and loss payments made. In finance, loan 
losses of a bank or the receivable losses of a business 
compared to the assets of that class. 
Loss reserve. That portion of insurance company's as
sets set aside for payment of losses which will probably 
arise or which have arisen but have not been paid. 
Lost. An article is "lost" when the owner has lost the 
possession or custody of it, involuntarily and by any 
means, but more particularly by accident or his own 
negligence or forgetfulness, and when he is ignorant of 
its whereabouts or cannot recover it by an ordinarily 
diligent search. See also Lost property. 
As applied to ships and vessels, the term means "lost 
at sea," and a vessel lost is one that has totally gone 
from the owners against their will, so that they know 
nothing of it, whether it still exists or not, or one which 
they know is no longer within their use and control, 
either in consequence of capture by enemies or pirates, 
or an unknown foundering, or sinking by a known 
storm, or collision, or destruction by shipwreck. 
Lost corner. A point of survey whose position cannot be 
determined beyond reasonable doubt either from traces 
of the original marks or from acceptable evidence, and 
whose location can be restored only by reference to one 
or more independent corners. Finley v. Yuba County 
Water Dist., 99 C.A.3d 691, 160 Cal.Rptr. 423, 426. See 
Corner. 
Lost or not lost. A phrase sometimes inserted in poli
cies of marine insurance. It signifies that the contract 
is meant to relate back to the beginning of a voyage now 
in progress, or to some other antecedent time, and to be 
valid and effectual even if, at the moment of executing 
the policy, the vessel should have already perished by 
some of the perils insured against, provided that neither 
party has knowledge of that fact or any advantage over 
the other in the way of superior means of information. 
Hooper v. Robinson, 98 U.S. 528, 25 L.Ed. 219; Insur
ance Co. v. Folsom, 85 U.S. (18 Wall.) 237, 21 L.Ed. 827. 
946 
Lost papers. Papers which have been so mislaid that 
they cannot be found after diligent search. 
Lost property. Property which the owner has involun
tarily parted with, through neglect, carelessness or inad
vertence, and does not know where to find or recover it, 
not including property which he has intentionally con
cealed or deposited in a secret place for safe-keeping. 
Distinguishable from mislaid property which has been 
deliberately placed somewhere and forgotten. The ma
jority of the states have adopted the Uniform Disposi
tion of Unclaimed Property Act. Compare Property (Mis
laid property). 
A person who comes into control of property of anoth
er that he knows to have been lost, mislaid, or delivered 
under a mistake as to the nature or amount of the 
property or the identity of the recipient is guilty of theft 
if, with purpose to deprive the owner thereof, he fails to 
take reasonable measures to restore the property to a 
person entitled to have it. Model Penal Code § 223.5. 
Lost will. A will which was once executed but cannot be 
found at death of testator. The contents can be proved 
by parol in many jurisdictions, though in some states 
there is a rebuttable presumption that a will once in 
existence has been revoked if it cannot be found at 
testator's death. 
Lot. A number of associated persons or things taken 
collectively. Hitchcock v. United States, D.C.Mich., 36 
F.Supp. 507, 510. 
Real estate. A share; one of several par:cels into which 
property is divided. Any portion, piece, division or 
parcel of land. Fractional part or subdivision of block, 
according to plat or survey, Mawson-Peterson Lumber 
Co. v. Sprinkle, 59 Wyo. 334, 140 P.2d 588, 59 1; portion 
of platted territory measured and set apart for individu
al and private use and occupancy, Hunter v. Roman 
Catholic Bishop of Los Angeles and San Diego Corpora
tion Sole, 128 Cal.App. 90, 16 P.2d 1048, 1049. 
A lot is commonly one of several other contiguous 
parcels of land making up a block. Real property is 
typically described by reference to lot and block num
bers on recorded maps and plats. 
Local zoning laws commonly require minimum lot 
sizes for residential and commercial building. 
See also Minimum lot; Nonconforming lot; Parcel. 
Sales. In sales, a parcel or single article which is the 
subject matter of a separate sale or delivery whether or 
not it is sufficient to perform the contract. U.C.C. 
§ 2-105(5). 
Securities. In securities and commodities market, a 
specified number of shares or specific quantity of a 
commodity designated for trading. See Odd lot; Odd lot 
doctrine. 
Lot and scot. In English law, certain duties which 
formerly had to be paid by those who claimed to exercise 
the elective franchise within certain cities and boroughs, 
before they were entitled to vote. 
Lot book. Plat book.

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947 
Lotherwite, or leyerwit. In old English law, a liberty or 
privilege to take amends for lying with a bondwoman 
without license. 
Lot line. A boundary of a tract of land used to describe 
such land and often used in description of contiguous 
land. 
Lottery Ilot�riy I. A chance for a prize for a price. A 
scheme for the distribution of a prize or prizes by lot or 
chance, the number and value of which is determined by 
the operator of lottery. V.S. v. Baker, C.A.Pa., 364 F.2d 
107, 111. Essential elements of a lottery are considera
tion, prize and chance and any scheme or device by 
which a person for a consideration is permitted to re
ceive a prize or nothing as may be determined predomi
nantly by chance. State v. Wassick, W.Va., 191 S.E.2d 
283, 288. 
An unlawful gambling scheme in which (a) the players 
pay or agree to pay something of value for chances, 
represented and differentiated by numbers or by combi
nations of numbers or by some other media, one or more 
of which chances are to be designated the winning ones; 
and (b) the winning chances are to be determined by a 
drawing or by some other method based upon the ele
ment of chance; and (c) the holders of the willing 
chances are to receive something of value. New Jersey 
Criminal Code, § 2C:37-1. 
Also defined as device whereby anything of value is 
for a consideration allotted by lot or chance. State ex 
Inf. McKittrick v. Globe-Democrat Pub. Co., 341 Mo. 862, 
11 0 S.W.2d 705, 71 3, 714, 71 7, 718. Game by which a 
person paying money becomes entitled to money or 
other thing of value on certain contingencies, determin
able by lot cast in a particular way by the manager of 
the game; game of hazard in which small sums of 
money are ventured for chance of obtaining a larger 
value in money or other articles; State v. Jones, 44 N.M. 
623, 107 P.2d 324, 326; gaming contract by which for a 
valuable consideration one may by favor of the lot 
obtain a prize of value superior to the amount or value 
of that which he risks, Troy Amusement Co. v. Atten
weiler, 64 Ohio App. 105, 28 N.E.2d 207, 212, 17 0.0. 
443; hazard in which sums are ventured for a chance of 
obtaining a greater value, People v. Hines, 284 N.Y. 93, 
29 N.E.2d 483, 488. Scheme by which result is reached 
by some action or means taken, and in which result 
man's choice or will has no part nor can human reason, 
foresight, sagacity, or design enable him to know or 
determine such result until the same has been accom
plished, State v. Schwemler, 154 Or. 533, 60 P.2d 938, 
940; scheme for distribution of prizes or things of value 
by lot or chance, Engle v. State, 593 Ariz. 458, 90 P.2d 
988, 992, 993; scheme for raising money by selling 
chances to share in distribution of prizes. Scheme 
where money is paid for chance of receiving money or a 
prize in return. People v. Psallis, Mag.C t.N.Y., 12 N.Y. 
S.2d 796, 797, 798, 799. Scheme whereby one on paying 
money or other valuable thing to another becomes enti
tled to receive from him such a return in value or 
nothing as some formula of chance may determine. 
ScheIl!.e which, played or operated once, destroys the 
LOYALTY OATH 
value of ticket provided as the prizes are distributed. 
Scheme which tends to induce one to pay or agree to pay 
a valuable consideration for a chance to draw a prize. 
A number of states, by statute, provide for state-run 
lotteries (e.g. Mass.G.L. Ch. 10, § 22 et seq.). 
The advertising and sending of lottery tickets through 
the mails and by other instrumentalities of interstate 
commerce is prohibited by federal law. 18 V.S.C.A. 
§ 1301 et seq., 1953. Though most states also have 
similar laws prohibiting such activities, these federal 
laws do not apply to state-run lotteries. 18 V.S.C.A. 
§ 1307. 
See also Dutch lottery; Gambling; Game of chance; 
Sweepstakes. 
Louage Iluwazh/. Fr. This is the contract of hiring 
and letting in French law, and may be either of things 
or of labor. The varieties of each are the following: 1. 
Letting of things,-bail a loyer being the letting of 
houses; bail a fe rme being the letting of lands. 2. 
Letting of labor, em loger being the letting of personal 
services; bail a cheptel being the letting of animals. 
L'ou Ie ley done chose, la ceo done remedie a vener a 
ceo Iluw l� l{�y down showz, la sow down rem�diy a 
v�ney a sow I. Where the law gives a right, it gives a 
remedy to recover. 
Love and affection. Such is a sufficient consideration 
when a gift is contemplated, but is not considered "valu
able" consideration where such is required. See Nudum 
pactum. 
Love-day. In old English law, the day on which any 
dispute was amicably settled between neighbors; or a 
day on which one neighbor helps another without hire. 
Lowbote. In old English law, a recompense for the 
death of a man killed in a tumult. 
Lower of cost or market. A basis for inventory valua
tion where the inventory value is set at the lower of 
acquisition cost or current replacement cost (market). 
Lowers. Fr. In French maritime law, wages. 
Lowest responsible bidder. Bidder who not only has 
lowest price which conforms with the specifications, but 
also is financially able and competent to complete work 
as evidenced by prior performance. 
Low justice. In old European law, jurisdiction of petty 
offenses, as distinguished from "high justice" (q. v.). 
Low-water mark. Line on the shore marking the lowest 
ebb of the tide. See also Water-mark. 
Loyal. Legal; authorized by or conforming to law. Also 
faithful in one's political relations; giving faithful sup
port and allegiance to one's prince or sovereign or to the 
existing government. Faithful support to cause, ideal, 
office, or person. 
Loyalty. Adherence to law. Faithfulness to one's office 
or sovereign or to the existing government. 
Loyalty oath. An oath whereby an individual declares 
his allegiance to his government and its institutions and

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LOYALTY OATH 
disclaims any support of foreign ideologies or associa
tions. Such oaths as are required of various classifica
tions of public officials and persons working in "sensi
tive" government positions. See e.g. Art. II, § 1, cl. 7; 
Art. VI, cl. 3, U.S.C onst. However, oaths too vague to 
specify clearly what constitutes seditious acts and utter
ances have been declared unconstitutional. Communist 
Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 
656, 38 L.Ed.2d 635. See also Oath. 
L.R. An abbreviation for "Law Reports." 
L.S. An abbreviation for "Locus sigilli, " the place of the 
seal; i.e., the place where a seal is to be affixed, or a 
scroll which stands instead of a seaL See Locus sigilli. 
LSAT. Law School Admission Test. This test is given to 
law school applicants. The LSAT is a half-day multiple 
choice test designed to measure certain basic reasoning 
abilities important in the study of law, general academic 
ability and command of written English. It provides 
two scores: an LSAT score and a writing ability (WA) 
score. The LSAT portion measures the ability to under
stand and reason with a variety of verbal, quantitative, 
and symbolic materials. The writing ability portion 
measures the use of standard English to express ideas 
clearly and precisely. The test is intended to supple
ment the undergraduate record and other information 
about the student in the assessment of potential for law 
school work. It covers a broad range of disciplines, 
measures skills acquired over a long period of time, and 
gives no advantage to students with particular special
izations. 
Ltd. Limited. 
Lubricum lingure non facile trahendum est in prenam 
Iluwbr�k�m lilJgwiy non fres�liy tr�h(md�m est in 
piyn�m/. A slip of the tongue ought not lightly to be 
subjected to punishment. 
Lucid. Easily understood; clear; rational; sane. 
Lucid interval. A temporary cure; temporary restora
tion to sanity. Intervals occurring in the mental life of 
an insane person during which he is completely restored 
to the use of his reason, or so far restored that he has 
sufficient intelligence, judgment, and will to enter into 
contractual relations, or perform other legal acts, with
out disqualification by reason of his disease. Oklahoma 
Natural Gas Corporation v. Lay, 175 Okl. 75, 51 P.2d 
580, 583. With respect to marriage, refers to period of 
time during which person had sufficient mental capacity 
to know and understand nature and consequence of 
marriage relation, and the reciprocal and mutual duties 
and obligations thereof. Carter v. Bacle, Tex.Civ.App., 
94 S.W.2d 817, 819. In connection with wills, a period of 
time within which an insane person enjoys the restora
tion of his faculties sufficiently to enable him to judge 
his act. In re Cook's Estate, 231 Or. 133, 372 P.2d 520, 
522. See also Insanity. 
Lucra nuptialia Il(y)uwkr� n�pshiyeyl(i)y�/. Lat. In 
Roman law, a term including everything which a hus
band or wife, as such, acquires from the estate of the 
other, either before the marriage, or on agreeing to it, or 
948 
during its continuance, or after its dissolution, and 
whether the acquisition is by pure gift, or by virtue of 
the marriage contract, or against the will of the other 
party by law or statute. 
Lucrativa causa /l(y)uwkr�tayv� k6z�/. t at. In Roman 
law, a consideration which is voluntary; that is to say, a 
gratuitous gift, or such like. It was opposed to onerosa 
causa, which denoted a valuable consideration. It was a 
principle of the Roman law that two lucrative causes 
could not concur in the same person as regarded the 
same thing; that is to say, that, when the same thing 
was bequeathed to a person by two different testators, 
he could not have the thing (or its value) twice over. 
Lucrativa usucapio II(y)uwkr�tayv� yuwz(y)uwkrepi
yow I. Lat. This species of usucapio was permitted in 
Roman law only in the case of persons taking possession 
of property upon the decease of its late owner, and in 
exclusion or deforcement of the heir, whence it was 
called "usucapio pro hrerede." The adjective "lucrativa" 
denoted that property was acquired by this usucapio 
without any consideration or payment for it by way of 
purchase; and, as the possessor who so acquired the 
property was a mala fide possessor, his acquisition, or 
usucapio, was called also "improba " (i.e., dishonest); but 
this dishonesty was tolerated (until abolished by Hadri
an) as an incentive to force the hreres to take possession, 
in order that the debts might be paid and the sacrifices 
performed; and, as a further incentive to the hreres, this 
usucapio was complete in one year. 
Lucrative. Yielding gain or profit; profitable; bearing 
or yielding a revenue or salary. 
Lucrative bailment. See Bailment. 
Lucrative office. One which yields a revenue (in the 
form of fees or otherwise) or a fixed salary to the 
incumbent. According to some authorities, one which 
yields a compensation supposed to be adequate to the 
services rendered and in excess of the expenses inciden
tal to the office. One the pay of which is affixed to 
performance of duties of office. 
Lucre II(y)uwk�r/. Gain in money or goods; profit; 
usually in an ill sense, or with the sense of something 
base or unworthy. 
Lucri causa II(y)uwkray k6z�/. Lat. In criminal law, a 
term descriptive of the intent with which property is 
taken in cases of larceny, the phrase meaning "for the 
sake of lucre" or gain. 
Lucrum II(y)uwkr�m/. A small slip or parcel of land. 
Lucrum cessans /l(y)uwkr�m sesrenz/. Lat. A ceasing 
gain, as distinguished from damnum datum, an actual 
loss. That element of contract damages which accounts 
for lost profits. 
Lucrum facere ex pupilli tutela tutor non debet 
Il(y)uwkr�m feys�riy eks p(y)Olpilay t(y)�tiyb tyUbr non 
debOlt/. A guardian ought not to make money out of the 
guardianship of his ward. 
Luctuosa hrereditas /l�ktyuw6wsOl hOlriydOltres/. A 
mournful inheritance. See Hrereditas luctuosa.

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949 
Luctus /l:)kt::ls/. In Roman law, mourning. See Annus 
luctus. 
Luminare /l(y)uwm::lneriy/. A lamp or candle set burn
ing on the altar of any church or chapel, for the mainte
nance whereof lands and rent-charges were frequently 
given to parish churches, etc. 
Lumping sale. As applied to judicial sales, this term 
means a sale in mass, as where several distinct parcels 
of real estate, or several articles of personal property, 
are sold together for a cClump" or single gross sum. See 
Bulk sale. 
Lump-sum alimony. Settlement or payment of money 
or property in divorce action made in single payment 
instead of installments. Sometimes called cCalimony in 
gross." See Alimony. 
Lump-sum distribution. Single payment of the entire 
amount due at one time rather than in installments. 
Such distributions often occur from qualified pension or 
profit-sharing plans upon the retirement or death of a 
covered employee. 
Lump-sum payment. A single payment in contrast to 
installments; e.g. single premium payment for life insur
ance; a single lump sum divorce settlement; or single 
worker's compensation payment in lieu of future month
ly installment payments. See also Alimony. 
Lunacy. See Ins anity. 
Lunar. Belonging to or measured by the revolutions of 
the moon. 
Lunar month. See Month. 
Lunatic. See Ins anity. 
Lushborow Il:)shb::lrow/l:)shb;}rg/. In old English law, a 
base sort of money, coined beyond sea in the likeness of 
English coin, and introduced into England in the reign 
of Edward III. Prohibited by St. 25 Edw. III, c. 4. 
Luxury tax. Generic term for excise imposed on pur
chase of items which are not necessaries; e.g. tax on 
liquor or cigarettes. 
LYTlE 
Lying by. A person who, by his presence and silence at 
a transaction which affects his interests, may be fairly 
supposed to acquiesce in it, if he afterwards propose to 
disturb the arrangement, is said to be prevented from 
doing so by reason that he has been lying by. See also 
Estoppel. 
Lying in franchise. A term descriptive of waifs, wrecks, 
estrays, and the like, which may be seized without suit 
or action. 
Lying in grant. A phrase applied to incorporeal rights, 
incapable of manual tradition, and which must pass by 
mere delivery of a deed. 
Lying in wait. Lying in ambush; lying hidden or con
cealed for the purpose of making a sudden and unex
pected attack upon a person when he shall arrive at the 
scene. For purposes of aggravating circumstance, ele
ments necessary to constitute Ulying in wait" are watch
ing, waiting and concealment from person killed with 
intent to kill or inflict bodily injury upon that person. 
Davis v. State, Ind., 477 N.E.2d 889, 896. In some 
jurisdictions, where there are several degrees of murder, 
lying in wait is made evidence of that deliberation and 
premeditated intent which is necessary to characterize 
murder in the first degree. 
Lynch law. A term descriptive of the action of un
official persons, organized bands, or mobs, who seize 
persons charged with or suspected of crimes, or take 
them out of the custody of the law, and inflict summary 
punishment upon them, without legal trial, and without 
the warrant or authority of law. 
Lyndhurst's (Lord) Act Ilord lind(h)::lrsts rekt/. This 
English statute (5 & 6 Wm. IV, c. 54) renders marriages 
within the prohibited degrees absolutely null and void. 
Theretofore such marriages were voidable merely. 
Lytre /laytiy/. In old Roman law, a name given to 
students of the civil law in the fourth year of their 
course, from their being supposed capable of solving any 
difficulty in law.

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M 
M. This letter, used as a Roman numeral, stands for one 
thousand. 
It was also, in old English law, a brand or stigma 
impressed upon the brawn of the thumb of a person 
convicted of manslaughter and admitted to the benefit 
of clergy. 
This letter was sometimes put on the face of treasury 
notes of the United States, and signified that the trea
sury note bears interest at the rate of one mill per 
centum, and not one per centum interest. U. S. v. 
Hardyman, 38 U.S. (13 Pet.) 176, 10 L.Ed. 113. 
Mace. A large staff, made of the precious metals, and 
highly ornamented. It is used as an emblem of authori
ty, and carried before certain public functionaries by a 
mace-bearer. In many legislative bodies, the mace is 
employed as a visible symbol of the dignity and collec
tive authority of the house. In the house of lords and 
house of commons of the British parliament, it is laid 
upon the table when the house is in session. In the 
United States House of Representatives, it is borne 
upright by the sergeant-at-arms on extraordinary occa
sions, as when it is necessary to quell a disturbance or 
bring refractory members to order. 
Chemical liquid which, when sprayed in face of per
son, causes dizziness and immobilization. 
Macedonian decree Imres�d6wniy;m d�kriy/. In Roman 
law, this was the Senatus-consultum Macedonianum, a 
decree of the Roman senate, first given under Claudius, 
and renewed under Vespasian by which it was declared 
that no action should be maintained to recover a loan of 
money made to a child who was under the patria potes
tas. It was intended to strike at the practice of usurers 
in making loans, on unconscionable terms, to family 
heirs who would mortgage their future expectations 
from the paternal estate. The law is said to have 
derived its name from that of a notorious usurer. 
Mace-greff Imeysgref/. In old English law, one who 
buys stolen goods, particularly food, knowing it to have 
been stolen. 
Mace-proof. Secure against arrest. 
Machination Imrebneysh�n/mresho I. The act of plan
ning or contriving a scheme for executing some purpose, 
particularly an evil purpose; an artful design formed 
with deliberation. See also Artifice; Scheme. 
Mactator Imrekteyt�r/. L. Lat. In old European law, a 
murderer. 
Maculare Imreky�leriy/. In old European law, to 
wound. 
Made. Filed. St. Louis Law Printing Co. v. Aufder
heide, 226 Mo.App. 680, 45 S.W.2d 543, 545. Produced 
or manufactured artificially. United States v. 
Anderson, D.C.Cal., 45 F.Supp. 943, 946. To have re
quired or compelled. Dickinson v. Mingea, 191 Ark. 
946, 88 S.W.2d 807, 809. Executed. Lone Star Gas Co. 
v. Coastal States Gas Producing Co., 388 S.W.2d 251, 
255. 
Made known. Where a process or other legal paper has 
been actually served upon a defendant, the proper re
turn is that its contents have been "made known" to 
him. A crime is "made known" to an officer when facts 
which come to knowledge of the officer are such as to 
indicate to him that it is his official duty to act or to see 
that an investigation of the alleged crime is instituted 
within his jurisdiction. See also Notice. 
Madman. This is not a technical term either of medi
cine or the law, and because of this it is incapable of 
being applied with scientific precision; as such, is no 
longer in use. See Insanity. 
Mad Parliament. Henry III, in 1258, at the desire of 
the Great Council in Parliament, consented to the ap
pointment of a committee of twenty-four, of whom 
twelve were appointed by the Barons and twelve by the 
King, in a parliament which was stigmatized as the 
"Mad Parliament." Unlimited power was given to it to 
carry out all necessary reforms. It drew up the Provi
sions of Oxford. 
Mrec-burgh Imrekb�rg/. In Saxon law, kindred; family. 
Mreg Imreg/. A kinsman. 
Mregbote Imregbowt/. In Saxon law, a recompense or 
satisfaction for the slaying or murder of a kinsman. 
Magic. In English statutes, witch-craft and sorcery. 
Magis de bono quam de malo lex intendit Imeyj�s diy 
b6wnow kwrem diy mrelow leks �ntend�t/. The law 
favors a good rather than a bad construction. Where 
the words used in an agreement are susceptible of two 
meanings, the one agreeable to, the other against, the 
law, the former is adopted. Thus, a bond conditioned 
"to assign all offices" will be construed to apply to such 
offices only as are assignable. 
Magis dignum trahit ad se minus dignum Imeyj�s 
dign�m trey(h)�t red siy mayn�s dign�m/. The more 
worthy draws to itself the less worthy. 
950

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951 
Magister. Lat. Civil law. A title of several offices 
under the Roman Empire. 
English law. A master or ruler; a person who has 
attained to some eminent degree in science. 
Magister ad facultates /m;)jist;)r red frek;)lteytiyz/. In 
English ecclesiastical law, the title of an officer who 
grants dispensations; as to marry, to eat meat on days 
prohibited and the like. 
Magister bonorum vendendorum /m;)jist;)r b;)nor;)m 
v(mdendor;)m/. In Roman law, a person appointed by 
judicial authority to inventory, collect, and sell the prop
erty of an absent or absconding debtor for the benefit of 
his creditors. He was generally one of the creditors, and 
his functions corresponded generally to those of a receiv
er or an assignee for the benefit of creditors under 
modern bankruptcy practice. 
Magister cancellarire / m;)jist;)r krens;)leriyiy / . In old 
English law, master of the chancery; master in chan
cery. These officers were said to be called "magistri, " 
because they were priests. 
Magisterial /mrej;)stiriy;)l/. Relating or pertaining to 
the character, office, powers, or duties of a magistrate or 
of the magistracy. 
Magisterial precinct. In some American states, a local 
subdivision of a county, defining the territorial jurisdic
tion of justices of the peace and constables; also called 
magisterial district. 
Magister libellorum / m;)jist;)r hlyb;)lor;)m/. Master of 
requests. A title of office under the Roman Empire. 
Magister litis /m;)jist;)r hiyt;)s/. Master of the suit; the 
person who controls the suit or its prosecution, or has 
the right so to do. 
Magister navis /m;)jist;)r neyv;)s/. In the civil law, the 
master of a ship or vessel. He to whom the care of the 
whole vessel is committed. 
Magister palatii /m;)jist;)r p;)leyshiyay/. Master of the 
palace or of the offices. An officer under the Roman 
Empire bearing some resemblance to the modern lord 
chamberlain. 
Magister rerum usus /m;)jist;)r rir;)m yUWS;)s/. Use is 
the master of things. Usage is a principal guide in 
practice. 
Magister rerum usus; magistra rerum experientia 
/m;)jist;)r rir;)m YUWS;)s, m;)jistr;) rir;)m ;)kspiriyen
sh(iy);)/. Use is the master of things; experience is the 
mistress of things. 
Magister societatis /m;)jist;)r s;)say;)teyt;)s/. In the civil 
law, the master or manager of a partnership; a manag
ing partner or general agent; a manager specially cho
sen by a firm to administer the affairs of the partner
ship. 
Magistracy /mrej;)str;)siy/. This term may have a more 
or less extensive signification according to the use and 
connection in which it occurs. In its widest sense it 
includes the whole body of public functionaries, whether 
their offices be legislative, judicial, executive, or admin-
MAGNA CARTA 
istrative. In a more restricted (and more usual) mean
ing, it denotes the class of officers who are charged with 
the application and execution of the laws. In a still 
more confined use, it designates the body of judicial 
officers of the lowest rank, and more especially those 
who have jurisdiction for the trial and punishment of 
petty misdemeanors or the preliminary steps of a crimi
nal prosecution, such as police judges and justices of the 
peace. The term also denotes the office of a magistrate. 
Golden v. Golden, 41 N.M. 356, 68 P.2d 928, 930. See 
also Magistrate. 
Magistralia brevia /mrej;)streyl(i)y;) briyv(i)y;)/. In old 
English practice, magisterial writs; writs adapted to 
special cases, and so called from being framed by the 
masters or principal clerks of the chancery. 
Magistrate. A public civil officer, possessing such pow
er-legislative, executive, or judicial-as the govern
ment appointing him may ordain. In a narrower sense, 
an inferior judicial officer, such as a justice of the peace. 
Shadwick v. City of Tampa, 407 U.S. 345, 348, 92 S.Ct. 
2119, 2122, 32 L.Ed.2d 783. 
U.S. (Federal) Magistrates. A judicial officer, appointed 
by judges of federal district courts, having many but not 
all of the powers of a judge. 28 U.S.C.A. §§ 631-639. 
Generally exercising duties formerly performed by U.S. 
Commissioners, magistrates may be designated to hear a 
wide variety of motions and other pretrial matters in 
both criminal and civil cases. With the consent of the 
parties, they may conduct civil or misdemeanor criminal 
trials. However, magistrates may not preside over felo
ny trials or over jury selection in felony cases. Gomez v. 
United States, 109 S.Ct. 2237, 104 L.Ed.2d 923. 
For Chief magistrate; Committing magistrate; Police 
magistrate; and Stipendiary magistrates, see those titles. 
Magistrate's courts. The jurisdiction of these courts of 
limited jurisdiction differs from state to state. Such 
may be divisions of courts of general jurisdiction, and 
may have concurrent jurisdiction with other courts. 
Commonly their jurisdiction is restricted to the handling 
of minor offenses, small claims or preliminary hearings. 
Magistratus /mrej;)streyt;)s/. Lat. In the civil law, a 
magistrate. A judicial officer who had the power of 
hearing and determining causes, but whose office prop
erly was to inquire into matters of law, as distinguished 
from fact. 
Magna assisa /mregn;) ;)SayZ;)/. In old English law, the 
grand assize. 
Magna assisa eligenda /mregn;) ;)SayZ;) el;)jend;)/. An 
ancient writ to summon four lawful knights before the 
justices of assize, there to choose twelve others, with 
themselves to constitute the grand assize or great jury, 
to try the matter of right. The trial by grand assize was 
instituted by Henry II, in parliament, as an alternative 
to the dual in a writ of right. Abolished by 3 & 4 Wm. 
IV, c. 27. 
Magna Carta /mregn;) kart;)/. The great charter. The 
name of a charter (or constitutional enactment) granted 
by King John of England to the barons, at Runnymede,

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MAGNA CARTA 
on June 15, 1215, and afterwards, with some alterations, 
confirmed in parliament by Henry III and Edward I. 
This charter is justly regarded as the foundation of 
English constitutional liberty. Among its thirty-eight 
chapters are found provisions for regulating the admin
istration of justice, defining the temporal and ecclesiasti
cal jurisdictions, securing the personal liberty of the 
subject and his rights of property, and the limits of 
taxation, and for preserving the liberties and privileges 
of the church. Magna Carta is so called, partly to 
distinguish it from the Charta de Foresta, which was 
granted about the same time, and partly by reason of its 
own transcendent importance. 
Magna centum /mregn� sent�m/. The great hundred, or 
six score. 
Magna Charta et Charta de Foresta sont appel{�s les 
"deux grandes charters" /mregn� kart� ey kart� diy 
f�rest� sownt repeley ley dyuw grrend chart�rz/. Magna 
Charta and the Charter of the Forest are called the 
"two great charters." 
Magna componere parvis /mregn� k�mpown�riy 
parv�s/. To compare great things with small things. 
Magna culpa /mregn� k;)lp�/. Great fault; gross negli
gence. 
Magna negligentia /mregn� negl�jensh(iy)�/. In the civ
il law, great or gross negligence. 
Magna negligentia culpa est; magna culpa dolus est 
/mregn� negl�jensh(iy)� k;)lp� est; mregn� k;)lp� dowl�s 
est/. Gross negligence is fault; gross fault is fraud. 
Magnuson-Moss Warranty Act. Federal statute (15 
V.S.C.A. § 2301 et seq.) requiring that written warran
ties as to consumer products must fully and conspicuous
ly disclose in simple and readily understood language 
the terms and conditions of such warranty, including 
whether the warranty is a full or limited warranty 
according to standards set forth in the Act. 
Magnus rotulus statutorum /mregn�s rot(y)�l�s stre
tyuwtor�m/. The great statute roll. The first of the 
English statute rolls, beginning with Magna Charta, and 
ending with Edward III. 
Maiden. A young unmarried woman. In an indictment 
for adultery, not necessarily a virgin. 
Maiden assize /meyd�n �sayz/. In English law, origi
nally an assize at which no person was condemned to 
die; later a session of a criminal court at which there 
were no prisoners to be tried. 
Maiden rents. In old English law, a fine paid to lords of 
some manors, on the marriage of tenants, originally 
given in consideration of the lord's relinquishing his 
customary right of lying the first night with the bride of 
a tenant. 
Maihem /mey(h)�m/. See Maim; Mayhem. 
Maihematus /mey(h)�meyt�s/. Maimed or wounded. 
Maihemium /meyhiym(i)y�m/. In old English law, may-
hem (q.v.). 
Maihemium est homicidium 
/meyhiym(i)y�m est hom�sayd(i)y�m 
Mayhem is incipient homicide. 
952 
inchoatum 
inkoweyt�m/ . 
Maihemium est inter crimina majora mInimum, et 
inter minora maximum /meyhiym(i)y�m est int�r 
krim�n� m�jor� min�m�m, et int�r m�nor� mreks�m�m/. 
Mayhem is the least of great crimes, and the greatest of 
small. 
Maihemium est membri mutilatio, et dici poterit, ubi 
aliquis in aliqua parte sui corporis effectus sit inu
tilis ad pugnandum / meyhiym(i)y�m est membray my
uwd�leysh(iy)ow, et daysay pot�r�t, yuwbay rel�kwis in 
rel�kw� partiy syuway korp�r�s �fekt�s sit inyuwd�l�s red 
p�gnrend�m/. Mayhem is the mutilation of a member, 
and can be said to take place when a man is injured in 
any part of his body so as to be useless in fight. 
Mail. See Mailed; Registered mail. 
Mailable. Suitable or admissible for transmission by the 
mail; belonging to the classes of articles which, by the 
laws and postal regulations, may be sent by mail. 
Mailbox rule. In contract law, unless otherwise agreed 
or provided by law, acceptance of offer is effective when 
deposited in mail if properly addressed. See Liquorama 
Inc. v. American Nat. Bank & Trust Co. of Chicago, 86 
Ill.App.3d 974, 41 Ill.Dec. 951, 953, 408 N.E.2d 373, 375. 
Mailed. A letter, package, or other mailable matter is 
"mailed" when it is properly addressed, stamped with 
the proper postage, and deposited in a proper place for 
receipt of mail. Texas Cas. Ins. Co. v. McDonald, Tex. 
Civ.App., 269 S.W.2d 456, 457. 
V nder rules practice in some jurisdictions, an action is 
deemed commenced when the complaint and appropri
ate entry fee is deposited in the mails under either 
certified or registered mail procedure; e.g. Mass.R.Civ.P. 
3. 
Mail fraud. The use of the mails to defraud is a federal 
offense requiring the government to prove a knowing 
use of the mails to execute the fraudulent scheme. V. S. 
v. Dondich (C.A.Cal.), 506 F.2d 1009. Elements of "mail 
fraud" are a scheme to defraud and the mailing of a 
letter for the purpose of executing the scheme. V. S. v. 
Scoblick, D.C.Pa., 124 F.Supp. 881, 887. See 18 V.S.C.A. 
§§ 1341, 1342. See Using mail to defraud. 
Mail order divorce. Divorce obtained by parties who 
are not physically present nor domiciled in the jurisdic
tion which purports to grant divorce (e.g. Mexican di
vorce). Such divorces are not recognized because of the 
complete absence of the usual bases for divorce jurisdic
tion. Vnruh v. Industrial Commission, 81 Ariz. 118, 301 
P.2d 1029. 
Maim. To cripple or mutilate in any way. To inflict 
upon a person any injury which deprives him of the use 
of any limb or member of the body, or renders him lame 
or defective in bodily vigor. To inflict bodily injury; to 
seriously wound or disfigure; disable. State v. Thomas, 
157 Kan. 526, 142 P.2d 692, 693. See also Mayhem.

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At common law, to deprive a person of a member or 
part of the body, the loss of which renders him less 
capable of fighting, or of defending himself; to commit 
mayhem (q.v.). 
Main. Principal, leading, primary, chief. Most impor
tant in size, extent, rank, importance, strength or utili
ty. 
Mainad Imeyn;}d/. In old English law, a false oath; 
perjury. Probably from Sax. "manath " or "mainath " a 
false or deceitful oath. 
Main-a-main. Immediately. 
Main channel. The main channel of a river is that bed 
over which the principal volume of water flows. The 
deeper or more navigable channel of river. 
Maine-port. In old English law, a small tribute, com
monly of loaves of bread, which in some places the 
parishioners paid to the rector in lieu of small tithes. 
Mainly. Principally, chiefly, in the main. 
Mainour Imeyn;}r/. An article stolen, when found in 
the hands of the thief. A thief caught with the stolen 
goods in his possession is said to be taken "with the 
mainour," that is, with the property in manu, in his 
hands. 4 Bl.Comm. 307. 
Mainovre, or mainreuvre Im;}n(y)uwv;}r/. A trespass 
committed by hand. 
Mainpernable Imeynp�rn;}b;}lI. Capable of being 
bailed; bailable; admissible to bail on giving surety by 
mainpernors. 
Mainpernor Imeynp�rn;}r/. In old practice, a surety for 
the appearance of a person under arrest, who is deliv
ered out of custody into the hands of his bail. 
Mainprise. In old English law, the delivery of a person 
into the custody of mainpernors (q.v.). Also the name of 
a writ (now obsolete) commanding the sheriff to take the 
security of mainpernors and set the party at liberty. 
"Mainpernors" differ from "bail" in that a man's bail 
may imprison or surrender him up before the stipulated 
day of appearance; mainpernors can do neither, but are 
barely sureties for his appearance at the day. Bail are 
only sureties that the party be answerable for the spe
cial matter for which they stipulate; mainpernors are 
bound to produce him to answer all charges whatsoever. 
3 Bl.Comm. 128. Other distinctions are made in the old 
books. 
Main purpose doctrine. The Statute of Frauds requires 
contracts to answer for the debt, default or misdoing of 
another to be in writing to be enforceable. However, if 
the main purpose of the promisor's undertaking is his 
own benefit or protection, such promise need not be in 
writing. MacDonald v. Stack, 345 Mass. 709, 189 N.E.2d 
221. The "main purpose rule" is that whenever the 
main purpose and object of promisor is not to answer for 
another but to subserve some purpose of his own, his 
promise is not within statute of frauds, although it may 
be in form a promise to pay debt of another and al
though performance of promise may incidentally have 
MAINTENANCE 
effect of extinguishing liability of another. Cooper Pe
troleum v. La Gloria Oil & Gas Co., Tex.Civ.App., 423 
S.W.2d 645, 655. 
Main-rent. Vassalage. 
Main sea. See Sea. 
Mainsworn Imeynsworn/. Forsworn, by making false 
oath with hand (main) on book. Used in the north of 
England. 
Maintain. The term is variously defined as acts of 
repairs and other acts to prevent a decline, lapse or 
cessation from existing state or condition; bear the 
expense of; carry on; commence; continue; furnish 
means for subsistence or existence of; hold; hold or 
keep in an existing state or condition; hold or preserve 
in any particular state or condition; keep from change; 
keep from falling, declining, or ceasing; keep in exist
ence or continuance; keep in force; keep in good order; 
keep in proper condition; keep in repair; keep up; 
preserve; preserve from lapse, decline, failure, or cessa
tion; provide for; rebuild; repair; replace; supply with 
means of support; supply with what is needed; support; 
sustain; uphold. Negatively stated, it is defined as not 
to lose or surrender; not to suffer or fail or decline. EI 
Paso County Water Imp. Dist. No. 1 v. City of El Paso, 
D.C.Tex., 243 F.2d 927, 931. 
To "maintain" an action is to uphold, continue on foot, 
and keep from collapse a suit already begun, or to 
prosecute a suit with effect. George Moore Ice Cream 
Co. v. Rose, Ga., 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 
1265. To maintain an action or suit may mean to 
commence or institute it; the term imports the exist
ence of a cause of action. Maintain, however, is usually 
applied to actions already brought, but not yet reduced 
to judgment. Smallwood v. Gallardo, 275 U.S. 56, 48 
S.Ct. 23, 72 L.Ed. 152. In this connection it means to 
continue or preserve in or with; to carry on. 
The words "maintains" and "maintaining" in statutes 
prohibiting maintenance of a liquor nuisance denote 
continuous or recurrent acts approaching permanence. 
The term "maintaining government" means providing 
money to enable government to perform duties which it 
is required by law to perform. 
See also Maintenance; Repair. 
Maintained. Carried on; kept possession and care of; 
kept effectively; commenced and continued. 
Maintainor. In criminal law, one who maintains or 
seconds a cause pending in litigation between others, 
either by disbursing money or otherwise giving assist
ance. One who is guilty of maintenance (q.v.). 
Maintenance. The upkeep or preservation of condition 
of property, including cost of ordinary repairs necessary 
and proper from time to time for that purpose. Bogan 
v. Postlewait, 265 N.E.2d 195, 197. See also Maintain. 
Sustenance; support; assistance; aid. The furnishing 
by one person to another, for his or her support, of the 
means of living, or food, clothing, shelter, etc., particu
larly where the legal relation of the parties is such that 
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child, or husband and wife. State ex reI. Blume v. State 
Board of Education of Montana, 97 Mont. 371, 34 P.2d 
515, 519. The supplying of the necessaries of life. Fed
eral Land Bank of St. Louis v. Miller, 184 Ark. 415, 42 
S.W.2d 564, 566. While term primarily means food, 
clothing and shelter, it has also been held to include 
such items as reasonable and necessary transportation 
or automobile expenses, medical and drug expenses, 
utilities and household expenses. Hughes v. Hughes, 
La.App., 303 So.2d 766, 769. See also Separate mainte
nance; Support. 
Assets. Expenditures undertaken to preserve an asset's 
service potential for its originally-intended life; these 
expenditures are treated as periodic expenses or product 
costs. Contrast with Im provement. See also Maintain; 
Repair. 
Lawsuits. An officious intermeddling in a lawsuit by a 
non-party by maintaining, supporting or assisting either 
party, with money or otherwise, to prosecute or defend 
the litigation. Schnabel v. Taft Broadcasting Co., Inc., 
Mo.App., 525 S.W.2d 819, 823. The offense committed 
by a maintainor (q.v.). See also Cham perty. 
Seamen. See Maintenance and cure. 
Maintenance and cure. Contractual form of compensa
tion given by general maritime law to seaman who falls 
ill while in service of his vessel. McCorpen v. Central 
Gulf S. S. Corp., C.A.Tex., 396 F.2d 547, 548. Seaman is 
entitled to maintenance and cure if he is injured or 
becomes ill in service or vessel, without regard to negli
gence of his employer or to unseaworthiness of ship; 
and "maintenance" is a per diem living allowance for 
food and lodging and "cure" is payment for medical, 
therapeutic and hospital expenses; and employer's duty 
to pay maintenance and cure continues until seaman 
has reached "maximum cure." Kratzer v. Capital Ma
rine Supply, Inc., D.C.La., 490 F.Supp. 222, 229. Pacific 
S.S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 
220. See also Cure. 
Maintenance assessment or fee. Charge for purpose of 
keeping an improvement in working order. University 
Nat. Co. v. Grays Harbor County, 12 Wash.2d 549, 122 
P.2d 501, 502. 
Maintenance call. See Margin call. 
Maintenance or assessment fee. A monthly charge 
for maintaining and repairing the commonly owned 
areas in a condominium subdivision or planned unit 
development. 
Maior Ime(y:J)r/. An old form of "mayor." 
Maister Imeyst:Jr/. An old form of "master." 
Maitre Imeytr:JI. Fr. In French maritime law, master; 
the master or captain of a vessel. 
Majestas Im:Jjestres/. Lat. In Roman law, the majesty, 
sovereign authority, or supreme prerogative of the state 
or prince. Also a shorter form of the expression "crimen 
majestatis, " or "crimen lresre majestatis, " an offense 
954 
against sovereignty, or against the safety or organic life 
of the Roman people; i.e., high treason. 
Ma jesty. Royal dignity. A term used of kings and 
emperors as a title of honor. 
Major. A person of full age; one who is no longer a 
minor; one who has attained the management of his 
own concerns and the enjoyment of his civic rights. See 
also Adult; Legal age; Majority. 
Greater or larger. Zenith Radio Distributing Corpora
tion v. Mateer, 311 Ill.App. 263, 35 N.E.2d 815, 816. 
Military law. The officer next in rank above a captain. 
Major and minor fault rule. Vessel guilty of gross 
fault has burden of showing that other vessel committed 
a plain fault. General Seafoods Corporation v. J. S. 
Packard Dredging Co., C.C.A.Mass., 120 F.2d 117, 119, 
120. Where fault on part of one vessel is established by 
uncontradicted testimony and such fault is, of itself, 
sufficient to account for the disaster, it is not enough for 
such vessel to raise a doubt with regard to management 
of other vessel and any reasonable doubt with regard to 
propriety of conduct of such other vessel should be 
resolved in its favor. Intagliata v. Shipowners & Mer
chants Towboat Co., 26 Cal.2d 365, 159 P.2d 1, 10. 
Major annus Imeyj:Jr ren:Js/. The greater year; the 
bissextile year, consisting of 366 days. 
Majora regalia Im:Jjor:J r:Jgeyl(i)Y:JI. The king's dignity, 
power, and royal prerogative, as opposed to his revenue, 
which is comprised in the minora regalia. 
Major crimes. A loose classification of serious crimes 
such as murder, rape, armed robbery, etc. 
Major (or minor) dispute. Major disputes within Rail
way Labor Act are those concerned with formation of 
collective bargaining agreements or with efforts to se
cure such agreements and look to acquisition of rights of 
future rather than to rights which vested in past; and, 
"minor disputes" are those arising where there is exist
ing ,agreement and there has been no effort to bring 
about formal change in terms or to create new agree
ment but dispute relates to application of particular 
prOVISIOn. Railway Exp. Agency, Inc. v. Gulf Dept., 
Dist. Bd. of Adjustment, Broth. of Ry., Airline and S. S. 
Clerks, Freight Handlers, Exp. and Station Emp., D.C. 
Ga., 306 F.Supp. 1243, 1246. Compare Minor dispute. 
Majore pcena affectus quam legibus statuta est, non 
est infamis Im:Jjoriy piyn:J :Jfekt:Js kwrem liyj:Jb:Js 
st:Jtytiwt:J est, non est :Jnfeym:Js/. One affected with a 
greater punishment than is provided by law is not 
infamous. 
Majores Im:Jjoriyzl. In old English law, greater persons; 
persons of higher condition or estate. 
In Roman law and genealogical tables, the male as
cendants beyond the sixth degree. 
Major general. An officer next in rank above a briga
dier general, and next below a lieutenant general, and 
who usually commands a division or an army corps.

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Major hrereditas venit unicuique nostrum a jure et 
legibus quam a parentibus /meyj:lr h:lred:ltres viyn:lt 
yuwn:lk(yuw)aykwiy nostr:lm ey juriy et Hyj:lb:ls kwrem 
ey p:lrent:lb:ls/. A greater inheritance comes to every 
one of us from right and the laws than from parents. 
Majority. Full age; legal age; age at which a person is 
no longer a minor. The age at which, by law, a person 
is capable of being legally responsible for all his or her 
acts (e.g. contractual obligations), and is entitled to the 
management of his or her own affairs and to the enjoy
ment of civic rights (e.g. right to vote). The opposite of 
minority. Also the status of a person who is a major in 
age. See Adult; Capacity; Legal age. 
The greater number. The number greater than half 
of any total. 
Majority of qualified electors. Refers to those who 
actually vote on election day. Harris v. Baden, 154 Fla. 
373, 17 So.2d 608, 609. See Majority rule; Majority vote. 
Majority opinion. The opinion of an appellate court in 
which the majority of its members join. May also refer 
to a view of a legal principle in which most jurisdictions 
concur. See also Opinion. 
Majority rule. Rule by the choice of the majority of 
those who actually vote, irrespective of whether a major
ity of those entitled participate. N. L. R. B. v. Standard 
Lime & Stone Co., C.C.A.Va., 149 F.2d 435, 437. See 
also Majority vote. 
Majority stockholder. One who owns or controls more 
than 50 percent of the stock of a corporation, though 
effective control may be maintained with far less than 
50 percent if most of the stock is widely held. In close 
corporation, majority shareholders may owe fiduciary, 
partner-like duties to minority shareholders. See Dona
hue v. Rodd Electrotype Co. of N.E., Inc., 367 Mass. 578, 
328 N .E.2d 505. 
Majority vote. Vote by more than half of voters for 
candidate or other matter on ballot. When there are 
only two candidates, he who receives the greater num
ber of the votes cast is said to have a majority; when 
there are more than two competitors for the same office, 
the person who receives the greatest number of votes 
has a plurality, but he has not a majority unless he 
receives a greater number of votes than those cast for 
all his competitors combined. 
As regards voting by stockholders, means majority per 
capita when the right to vote is per capita, and a 
majority of stock when each share of stock is entitled to 
a vote, each particular case being determined by provi
sions of charter regulating voting. Simon Borg & Co. v. 
New Orleans City R. Co., D.C.La., 244 F. 617, 619. 
Major numerus in se continet minorem /meyj:lr 
n(y)uwm:lr:ls in siy kont:ln:lt m:lnor:lm/. The greater 
number contains in itself the less. 
Majus dignum trahit ad se minus dignum /meyj:ls 
dign:lm trey(h):ld red siy mayn:ls dign:lm/. The more 
worthy draws to itself the less worthy. 
MAKING LAW 
Majus est delictum seipsum occidere quam alium 
/meyj:ls est d:llikt:lm siyips:lm oksid:lriy kwrem ey
liY:lm/. It is a greater crime to kill one's self than 
another. See Suicide. 
Majus jus /meyj:ls j;}s/. In old practice, greater right or 
more right. A plea in the old real actions. Majus jus 
merum, more mere right. 
A writ proceeding in some customary manors to try a 
right to land. 
Majus Latium /meyj:ls l{�ysh(iY):lm/. See Jus Latium. 
Make. To cause to exist. United States v. Giles, 300 
U.S. 41, 57 S.Ct. 340, 344, 81 L.Ed. 493. To form, 
fashion, or produce. To do, perform, or execute; as to 
make an issue, to make oath, to make a presentment. 
To do in form of law; to perform with due formalities; 
to execute in legal form; as to make answer, to make a 
return or report. 
To execute as one's act or obligation; to prepare and 
sign; to issue; to sign, execute, and deliver; as to make 
a conveyance, to make a note. To conclude, determine 
upon, agree to, or execute; as to make a contract. 
To cause to happen by one's neglect or omission; as to 
make default. To make acquisition of; to procure; to 
collect; as to make the money on an execution or to 
make a loan. To have authority or influence; to sup
port or sustain; as in the phrase, "This precedent makes 
for the plaintiff." 
Make a contract. To agree upon, and conclude or 
adopt, a contract. In case of a written contract, to 
reduce it to writing, execute it in due form, and deliver 
it as binding. 
Make an award. To form and publish a judgment on 
the facts. 
Make default. To fail or be wanting in some legal duty; 
particularly to omit the entering of an appearance when 
duly summoned in an action at law or other judicial 
proceeding. To neglect to obey the command of a 
subprena, etc. See also Default. 
Maker. One who makes, frames, executes, or ordains; 
as a "lawmaker," or the "maker" of a promissory note. 
One who signs a note to borrow and, as such, assumes 
obligation to pay note when due. The person who 
creates or executes a note, that is, issues it, and in 
signing the instrument makes the promise of payment 
contained therein. One who signs a check; in this 
context, synonymous with drawer. U.C.C. § �13(1). 
One who issues a promissory note or certificate of depos
it (i.e., one who promises to pay a certain sum to the 
holder of the note or CD). See Draft; Drawer. 
Accommodation maker. See Accommodation. 
Making law. In old practice, the formality of denying a 
plaintiff's charge under oath, in open court, with com
purgators. One of the ancient methods of trial, fre
quently, though inaccurately, termed "waging law," or 
"wager of law." 3 Bl.Comm. 34l. 
Term may also refer to a court decision that establish
es new law on a particular matter or subject.

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MAKING RECORD 
Making record. The preparation of an appellate record. 
May also refer to the process of trying a case with a 
view towards an eventual appeal in which the record of 
the trial is important. In the later instance care is 
taken during trial to make all appropriate objections so 
that such become part of the record on appeal. 
Mal. A prefix meaning bad, wrong, fraudulent; as ma
ladministration, malpractice, malversation, etc. 
Mala Imrel:)/. Lat. Bad; evil; wrongful. 
Maladministration Imrel:)dmin:)streysh:)n/. This term 
is used interchangeably with misadminis tration, and 
both words mean "wrong administration." 
Mala fides Imrel:) faydiyzl. Bad faith. The opposite of 
bona fides (q. v.). Mala fide, in bad faith. MaIre fidei 
possessor, a possessor in bad faith. 
Mala grammatica non vitiat chartam. Sed in exposi
tione instrumentorum mala grammatica quoad fieri 
possit evitanda est Imrel:) gr:)mret:)k:) non vishiy:)t 
kart:)m sed in eksp:)zishiyowniy instr:)mentor:)m mrel:) 
gr:)mret:)b kwowred fay:)ray pos:)t ev:)trend:) sit!. Bad 
grammar does not vitiate a deed. But in the exposition 
of instruments, bad grammar, as far as it can be done, is 
to be avoided. 
Mala in se Imrel:) in siy/. Wrongs in themselves; acts 
morally wrong; offenses against conscience. 
Malandrinus Imrel:)ndrayn:)s/. In old English law, a 
thief or pirate. 
Malapportionment. An improper or unconstitutional 
apportionment of legislative districts. See Gerrymander; 
Legislative apportionment. 
Mala praxis Imrel:) prreks:)s/. Malpractice; unskillful 
management or treatment. Particularly applied to the 
neglect or unskillful management of a physician, sur
geon, or apothecary. See Malpractice. 
Mala prohibita Imrel:) pr:)hib:)t:)I . Prohibited wrongs or 
offenses; acts which are made offenses by positive laws, 
and prohibi ted as such. Acts or omissions which are 
made criminal by statute but which, of themselves, are 
not criminal. Generally, no criminal intent or mens rea 
is required and the mere accomplishment of the act or 
omission is sufficient for criminal liability. Term is 
used in contrast to mala in se which are acts which are 
wrongs in themselves such as robbery. 
Malconduct Imrelkond;}kt!. III conduct, especially dis
honest conduct, maladministration, or, as applied to 
officers, official misconduct. See Malfeasance; Misfea
sance. 
Male Imeyl/. Of the masculine sex. 
Male creditus Imreliy kred:)t:)s/. In old English law, 
unfavorably thought of; in bad repute or credit. 
Maledicta est expositio qure corrumpit textum 
Imrel;)dikt;) est eksp;)zish(iy)ow kwiy k;)r�mp;)t teks
t;)m/. That is a cursed interpretation which corrupts 
the text. 
956 
Malediction Imrel;)diksh:)n/. A curse, which was an
ciently annexed to donations of lands made to churches 
or religious houses, against those who should violate 
their rights. 
Malefaction Imrel:)freksh;)n/. A crime; an offense. 
Malefactor Imrel:)frekt;)r/. He who is guilty, or has been 
convicted, of some crime or offense. 
Maleficia non debent remanere impunita; et impuni
tas continuum affectum tribuit delinquenti 
Imrel;)fish(iy):) non deb:)nt riym:)niriy impyuwn:)t:); ed 
impyuwn:)tres k;)ntinyuw;)m :)fekt;)m tribyuw;)t 
del:)I]kwentay/. Evil deeds ought not to remain unpun
ished; and impunity affords continual incitement to the 
delinquent. 
Maleficia propositis distinguuntur Imrebfish(iy):) 
pr;)poz:)t:)s distiI]gw�nt:)r/. Evil deeds are distinguished 
from evil purposes, or by their purposes. 
Maleficium Imrel:)fish(iy);)m/. In the civil law, waste; 
damage; tort; injury. 
Maleson, or malison Imrel;)s;)n/"z;)n/. A curse. 
Malesworn, or malsworn Imeylsworn/. Forsworn. 
Malfeasance Imrelfiyz:)n(t)s/. Evil doing; ill conduct. 
The commission of some act which is positively unlaw
ful; the doing of an act which is wholly wrongful and 
unlawful; the doing of an act which person ought not to 
do at all or the unjust performance of some act which 
the party had no right or which he had contracted not to 
do. Comprehensive term including any wrongful con
duct that affects, interrupts or interferes with the per
formance of official duties. State ex reI. Knabb v. 
Frater, 198 Wash. 675, 89 P.2d 1046, 1048. Malfeasance 
is a wrongful act which the actor has no legal right to 
do, or any wrongful conduct which affects, interrupts, or 
interferes with performance of official duty, or an act for 
which there is no authority or warrant of law or which a 
person ought not to do at all, or the unjust performance 
of some act, which party performing it has no right, or 
has contracted not, to do. Daugherty v. Ellis, 142 W.Va. 
340, 97 S.E.2d 33, 42. It differs from "misfeasance" and 
"non-feasance" (q. v.). 
Mal gree Imrel griy/. L. Fr. Against the will; without 
the consent. Hence the single word "malgre," and more 
modern "maugre" (q.v.). 
Malice. The intentional doing of a wrongful act without 
just cause or excuse, with an intent to inflict an injury 
or under circumstances that the law will imply an evil 
intent. A condition of mind which prompts a person to 
do a wrongful act willfully, that is, on purpose, to the 
injury of another, or to do intentionally a wrongful act 
toward another without justification or excuse. A con
scious violation of the law (or the prompting of the mind 
to commit it) which operates to the prejudice of another 
person. A condition of the mind showing a heart re
gardless of social duty and fatally bent on mischief. 
Cockrell v. S tate, 135 Tex.Cr.R. 218, 117 S.W.2d 1105, 
1109, 1110. Malice in law is not necessarily personal

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957 
hate or ill will, but it is that state of mind which is 
reckless of law and of the legal rights of the citizen. 
In murder, that condition of mind which prompts one 
to take the life of another without just cause, legal 
justification, or provocation. A willful or corrupt inten
tion of the mind. It includes not only anger, hatred and 
revenge, but also every other unlawful and unjustifiable 
motive. People v. Aaron, 299 N.W.2d 304, 326. 
As requirement to sustain award of punitive damages 
is wrongful act done intentionally without just cause or 
excuse. Malik v. Apex Intern. Alloys, Inc., C.A,Okl., 762 
F.2d 77, 80. 
As used in Bankruptcy Code (§ 523(a)(6» provision 
excepting from discharge liabilities for willful and mali
cious injuries to another entity or property of another 
entity does not require personal hatred or ill will, but 
requires that debtor know his act will harm another and 
proceed in face of such knowledge. Matter of Chambers, 
Bkrtcy.Wis., 23 B.R. 206, 210. 
In libel and slander, as to privileged communications, 
"malice" involves an evil intent or motive arising from 
spite or ill will; personal hatred or ill will; or culpable 
recklessness or a willful and wanton disregard of the 
rights and interests of the person defamed. In a libel 
case it consists in intentionally publishing, without justi
fiable cause, any written or printed matter which is 
injurious to the character of another. Becker v. Brin
kop, 230 Mo.App. 871, 78 S.W.2d 538, 54 1. Malice may 
be defined, insofar as defamation is concerned, as acting 
in bad faith and with knowledge of falsity of statements. 
Rice v. Winkelman Bros. Apparel, Inc., 13 Mich.App. 
281, 164 N.W.2d 417, 420. In the context of a libel suit 
brought by a public figure, it consists in publishing the 
false defamation knowing it to be false or with a reck
less disregard of whether it is true or false. New York 
Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 71 0, 11 
L.Ed.2d 686. See also Libel; Slander. 
In the law of malicious prosecution, it means that the 
prosecution was instituted primarily because of a pur
pose other than that of bringing an offender to justice. 
Brown v. Kisner, 192 Miss. 746, 6 So.2d 611, 617. It is 
the intentional doing of a wrongful act without legal 
justification, and may be inferred from the absence of 
probable cause; it does not necessarily involve hatred or 
ill will. Palermo v. Cottom, Mo.App., 525 S.W.2d 758, 
765. See also Malicious prosecution. 
Actual malice. Express malice, or malice in fact. 
Eteenpain Co-op. Soc. v. Lillback, C.C.A,Mass., 18 F.2d 
912 , 917. In libel law, "actual malice" can be estab
lished either by proving the publication was made with 
the knowledge of its falsity of its contents or with 
reckless disregard of whether it was false or not. Hepps 
v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A,2d 
374, 389. Such will be found where an intent to inflict 
harm through falsehood is established. Cochran v. In
dianapolis Newspapers, Inc., 175 Ind.App. 548, 372 
N.E.2d 1211, 1219. See also Malice in fact. 
Constructive malice. Implied malice; malice inferred 
from acts; malice imputed by law; malice which is not 
MALICE IN FACT 
shown by direct proof of an intention to do injury 
(express malice), but which is inferentially established 
by the necessarily injurious results of the acts shown to 
have been committed. See also Implied malice, below. 
Express malice. Actual malice; malice in fact; ill will 
or wrongful motive. A deliberate intention to commit 
an injury, evidenced by external circumstances. Sparf 
v. U. S., 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343. See also 
Express malice; Malice in fact. 
Implied malice. Malice inferred by legal reasoning and 
necessary deduction from the res gestre or the conduct of 
the party. Malice inferred from any deliberate cruel act 
committed by one person against another, however sud
den. What is called "general malice" is often thus 
inferred. Sparf v. U. S., 156 U.S. 51, 15 S.Ct. 273, 39 
L.Ed. 343. See also Constructive malice, above; and 
Malice in law. 
Legal malice. See Legal malice; Malice in law. 
Particular malice. Malice directed against a particular 
individual. III will; a grudge; a desire to be revenged 
on a particular person. See also Special malice, below. 
Preconceived malice. Malice prepense or aforethought. 
See Malice aforethought; Premeditation. 
Premeditated malice. An intention to kill unlawfully, 
deliberately formed in the mind as the result of a 
determination meditated upon and fixed before the act. 
See Malice aforethought; Premeditation. 
Special malice. Particular or personal malice; that is, 
hatred, ill will, or a vindictive disposition against a 
particular individual. 
Universal malice. By this term is not meant a malicious 
purpose to take the life of all persons, but it is that 
depravity of the human heart which determines to take 
life upon slight or insufficient provocation, without 
knowing or caring who may be the victim. 
Malice aforethought. A predetermination to commit 
an act without legal justification or excuse. Harrison v. 
Commonwealth, 279 Ky. 510, 131 S.W.2d 454, 455. A 
malicious design to injure. State v. Thomas, 157 Kan. 
526, 142 P.2d 692, 693. The intentional doing of an 
unlawful act which was determined upon before it was 
executed. State v. Lane, Mo., 371 S.W.2d 261, 263. An 
intent, at the time of a killing, willfully to take the life 
of a human being, or an intent willfully to act in callous 
and wanton disregard of the consequences to human life; 
but "malice aforethought" does not necessarily imply 
any ill will, spite or hatred towards the individual killed. 
See also Premeditation. 
Malice in fact. Express or actual malice. III will to
wards a particular person; an actual intention to injure 
or defame such person. Judge v. Rockford Memorial 
Hospital, 17 Ill.App.2d 365, 150 N.E.2d 202, 208. It 
implies desire or intent to injure, while "malice in law," 
or "implied malice," means wrongful act done intention
ally, without just cause or excuse, and jury may infer it. 
See Malice (Actual malice). Compare Malice in law.

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MALICE IN LAW 
Malice in law. The intentional doing of a wrongful act 
without just cause or excuse. Lyons v. St. Joseph Belt 
Ry. Co., 232 Mo.App. 575, 84 S.W.2d 933, 944. Implied, 
inferred, or legal malice. As distinguished from malice 
in fact, it is presumed from tortious acts, deliberately 
done without just cause, excuse, or justification, which 
are reasonably calculated to injure another or others. 
See also Legal malice. Compare Malice in fact. 
Malice prepense. Malice aforethought; deliberate, pre
determined malice. 
Malicious /m�lish�s/. Characterized by, or involving, 
malice; having, or done with, wicked, evil or mischie
vous intentions or motives; wrongful and done inten
tionally without just cause or excuse or as a result of ill 
will. See also Malice; Willful. 
Malicious abandonment. In criminal law, the deser
tion of a wife or husband without just cause. 
Malicious abuse of legal process. Wilfully misapply
ing court process to obtain object not intended by law. 
The wilful misuse or misapplication of process to accom
plish a purpose not warranted or commanded by the 
writ. The malicious perversion of a regularly issued 
process, whereby a result not lawfully or properly ob
tained on a writ is secured; not including cases where 
the process was procured maliciously but not abused or 
misused after its issuance. The employment of process 
where probable cause exists but where the intent is to 
secure objects other than those intended by law. 
Hughes v. Swinehart, D.C.Pa., 376 F.Supp. 650, 652. 
The tort of "malicious abuse of process" requires a 
perversion of court process to accomplish some end 
which the process was not designed to accomplish, and 
does not arise from a regular use of process, even with 
ulterior motives. Capital Elec. Co. v. Cristaldi, D.C.Md., 
157 F.Supp. 646, 648. See also Abuse (Process), Mali
cious prosecution. Compare Malicious use of process. 
Malicious accusation. Procuring accusation or prosecu
tion of another from improper motive and without prob
able cause. See Malicious prosecution. 
Malicious act. A wrongful act intentionally done with
out legal justification or excuse; an unlawful act done 
willfully or purposely to injure another. 
Malicious arrest. See Malicious prosecution. 
Malicious assault with deadly weapon. Form of ag
gravated assault in which the victim is threatened with 
death or serious bodily injury from the defendant's use 
of a deadly weapon. The element of malice can be 
inferred from the nature of the assault and the selection 
of the weapon. 
Malicious injury. An injury committed against a per
son at the prompting of malice or hatred towards him, 
or done spitefully or wantonly. The willful doing of an 
act with knowledge it is liable to injure another and 
regardless of consequences. Injury involving element of 
fraud, violence, wantonness and willfulness, or criminal
ity. An injury that is intentional, wrongful and without 
just cause or excuse, even in the absence of hatred, spite 
or ill will. Panchula v. Kaya, 59 Ohio App. 556, 18 
958 
N.E.2d 1003, 1005, 13 0.0. 301. Punitive damages may 
be awarded to plaintiff for such injury. 
Malicious killing. Any intentional killing without a 
legal justification or excuse and not within the realm of 
voluntary manslaughter. State v. Cope, 78 Ohio App. 
429, 67 N.E.2d 912, 920, 34 0.0. 171. 
Maliciously. Imports a wish to vex, annoy, or injure 
another, or an intent to do a wrongful act, and may 
consist in direct intention to injure, or in reckless dis
regard of another's rights. See also Malice; Malicious. 
Malicious mischief. Willful destruction of personal 
property of another, from actual ill will or resentment 
towards its owner or possessor. Though only a trespass 
at the common law, it is now a crime in most states. 
Malicious motive. Any motive for instituting a prosecu
tion, other than a desire to bring an offender to justice. 
Lounder v. Jacobs, 11 9 Colo. 511, 205 P.2d 236, 238. See 
Malicious prosecution. 
Malicious prosecution. One begun in malice without 
probable cause to believe the charges can be sustained. 
An action for damages brought by person, against whom 
civil suit or criminal prosecution has been instituted 
maliciously and without probable cause, after termi
nation of prosecution of such suit in favor of person 
claiming damages. Beaurline v. Smith, Tex.Civ.App., 
426 S.W.2d 295, 298. 
One who takes an active part in the initiation, contin
uation or procurement of civil proceedings against an
other is subject to liability to the other for wrongful civil 
proceedings if: (a) he acts without probable cause, and 
primarily for a purpose other than that of securing the 
proper adjudication of the claim in which the proceed
ings are based, and (b) except when they are ex parte, 
the proceedings have terminated in favor of the person 
against whom they are brought. Restatement, Second, 
Torts, § 674. 
Elements of a cause of action for malicious prosecu
tion are: (1) commencement of prosecution of proceed
ings against present plaintiff; (2) its legal causation by 
present defendant; (3) its termination in favor of 
present plaintiff; (4) absence of probable cause for such 
proceedings; (5) presence of malice therein; and (6) 
damage to plaintiff by reason thereof. Palermo v. Cot
tom, Mo.App., 525 S.W.2d 758, 764. 
In addition to the tort remedy for malicious criminal 
proceedings, the majority of states also permit tort ac
tions for malicious institution of civil actions. 
See also Advice of counsel; False arrest; Vexatious 
proceeding. 
Malicious trespass. The act of one who maliciously or 
mischievously injures or causes to be injured any proper
ty of another or any public property. 
Malicious use of process. Utilization of process to 
intimidate, oppress or punish a person against whom it 
is sued out. Austin Liquor Mart, Inc. v. Department of 
Revenue, 18 Ill.App.3d 894, 310 N.E.2d 719 , 728. Exists 
where plaintiff proceeds maliciously and without proba
ble cause to execute object which law intends process to

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subserve. It has to do with the wrongful initiation of 
such process, while "abuse of civil process" is concerned 
with perversion of a process after it is issued. Hughes v. 
Swinehart, D.C.Pa., 376 F.Supp. 650, 653. See also 
Abuse (Process). Compare Malicious abuse of legal pro
cess. 
Malignare Imrel�gneriy/. To malign or slander; also to 
maim. 
Malinger Im�liIJg�r/ . To feign sickness or any physical 
disablement or mental lapse or derangement, especially 
for the purpose of escaping the performance of a task, 
duty, or work, or for purpose of continuing to receive 
disability payments. Person who consciously feigns or 
simulates mental or physical illness for gain. 
Malitia Im�lish(iy)�/. Lat. Actual evil design; express 
malice. 
Malitia est acida; est mali animi affectus Im�lish(iy)� 
est res�d�, est mrelay ren�may �fekt�s/. Malice is sour; 
it is the quality of a bad mind. 
Malitia prrecogitata Im�lish(iy)� priykoj�teyt�/. Malice 
aforethought. 
Malitia supplet retatem Im�lish(iy)� s�pl�t �teyt�m/. 
Malice supplies [the want of] age. 
Malitiis hominum est obviandum Im�lishiy�s 
h6m�n�m est obviyrend�m/. The wicked or malicious 
designs of men must be thwarted. 
Malleable Imreliy�b�l/. Capable of being drawn out and 
extended by beating; capable of extension by hammer
ing; reducible to laminated form by beating. 
Mallory Rule. Rule derived from case of the same name 
in which the court held that a confession given by one 
who had been detained an unreasonable time before 
being brought before magistrate was inadmissible 
though it was otherwise voluntary and trustworthy. 
Mallory v. U. S., 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 
1479. Also known as McNabb-Mallory Rule. 
Mallum. In old European law, a court of the higher 
kind in which the more important business of the coun
ty was dispatched by the count or earl. A public nation
al assembly. 
Malo animo Imrelow ren�mow/. Lat. With an evil 
mind; with a bad purpose or wrongful intention; with 
malice. 
Malo grato Imrelow greytow/. Lat. In spite; unwilling
ly. 
Maloney Act. Amendment passed in 1938 to Securities 
Exchange Act requiring registration of brokers in over
the-counter securities. 
Malpractice. Professional misconduct or unreasonable 
lack of skill. This term is usually applied to such 
conduct by doctors, lawyers, and accountants. Failure 
of one rendering professional services to exercise that 
MALUM IN SE 
degree of skill and learning commonly applied under all 
the circumstances in the community by the average 
prudent reputable member of the profession with the 
result of injury, loss or damage to the recipient of those 
services or to those entitled to rely upon them. It is any 
professional misconduct, unreasonable lack of skill or 
fidelity in professional or fiduciary duties, evil practice, 
or illegal or immoral conduct. Matthews v. Walker, 34 
Ohio App.2d 128, 296 N.E.2d 569, 571, 63 O.O.2d 208. 
See also Discovery rule; Standard of care. 
Legal malpractice. Consists of failure of an attorney to 
use such skill, prudence, and diligence as lawyers of 
ordinary skill and capacity commonly possess and exer
cise in performance of tasks which they undertake, and 
when such failure proximately causes damage it gives 
rise to an action in tort. Neel v. Magana, Olney, Levy, 
Cathcart and Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 
838, 491 P.2d 421. 
Medical malpractice. In medical malpractice litigation, 
negligence is the predominant theory of liability. In 
order to recover for negligent malpractice, the plaintiff 
must establish the following elements: (1) the existence 
of the physician's duty to the plaintiff, usually based 
upon the existence of the physician-patient relationship; 
(2) the applicable standard of care and its violation; (3) a 
compensable injury; and, (4) a causal connection be
tween the violation of the standard of care and the harm 
complained of. Kosberg v. Washington Hospital Center, 
Inc., 129 U.S.App.D.C. 322, 394 F.2d 947, 949. See also 
Captain of the ship doctrine; Continuous Treatment Doc
trine; Discovery rule; Maltreatment. 
Maltreatment. In reference to the treatment of his 
patient by a surgeon, this term signifies improper or 
unskillful treatment; it may result either from igno
rance, neglect, or willfulness; but the word does not 
necessarily imply that the conduct of the surgeon, in his 
treatment of the patient, is either willfully or grossly 
careless. See also Malpractice (Medical malpractice). 
Malum Imrel�m/, adj. Lat. Wrong; evil; wicked; rep
rehensible. 
Malum in se Imrebm in siy/. A wrong in itself; an act 
or case involving illegality from the very nature of the 
transaction, upon principles of natural, moral, and pub
lic law. Grindstaff v. State, 214 Tenn. 58, 377 S.W.2d 
921, 926; State v. Shedoudy, 45 N.M. 516, 11 8 P.2d 280, 
287. An act is said to be malum in se when it is 
inherently and essentially evil, that is, immoral in its 
nature. and injurious in its consequences, without any 
regard to the fact of its being noticed or punished by the 
law of the state. Such are most or all of the offenses 
cognizable at common law (without the denouncement of 
a statute); as murder, larceny, etc. Compare Malum 
prohibitum. 
Malum non habet efficientem, sed deficientem, cau
sam Imrel�m non hreb�t �fis(h)iyent�m sed d�fis(h)iy
ent�m k6z�m/. Evil has not an efficient, but a deficient, 
cause.

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MALUM NON PR£SUMITUR 
Malum non prresumitur Imrebm non pr�z(y)uwm�t;}r/ . 
Wickedness is not presumed. 
Malum prohibitum Imrel�m pr;}hib�t;}m/. A wrong pro
hibited; a thing which is wrong because prohibited; an 
act which is not inherently immoral, but becomes so 
because its commission is expressly forbidden by positive 
law; an act involving an illegality resulting from posi
tive law. Compare Malum in se. 
Malum quo communius eo pejus Imrel�m kwow 
k;}myuwn(i)y;}s iyow piyj;}s/. The more common an evil 
is, the worse it is. 
Malus usus abolendus est Imrel�s yuws�s reb�Umd�s 
est/. A bad or invalid custom is [ought] to be abolished. 
Malveilles. In old English law, ill will; crimes and 
misdemeanors; malicious practices. 
Malveis procurors Imrelvey pr�kyur;}rz/. L. Fr. Such 
as used to pack juries, by the nomination of either party 
in a cause, or other practice. 
Malversation Imrelv�rseysh�n/. In French law, this 
word is applied to all grave and punishable faults com
mitted in the exercise of a charge or commission (office), 
such as corruption, exaction, concussion, larceny. 
Man. A human being. A person of the male sex. A 
male of the human species above the age of puberty. 
In its most extended sense the term includes not only 
the adult male sex of the human species, but women and 
children. See Mankind. 
In feudal law, a vassal; a tenant or feudatory. The 
Anglo-Saxon relation of lord and man was originally 
purely personal, and founded on mutual contract. 
Manacles. Chain for the hands; shackles. 
Manage. To control and direct, to administer, to take 
charge of. To conduct; to carry on the concerns of a 
business or establishment. Generally applied to affairs 
that are somewhat complicated and that involve skill 
and judgment. 
Management. Government, control, superintendence, 
physical or manual handling or guidance; act of manag
ing by direction or regulation, or administration, as 
management of family, or of household, or of servants, 
or of great enterprises, or of great affairs. Branch v. 
Veterans' Administration, 189 Ark. 662, 74 S.W.2d 800, 
804. Discretionary power of direction. 
Manager. One who has charge of corporation and con
trol of its business, or of its branch establishments, 
divisions, or departments, and who is vested with a 
certain amount of discretion and independent judgment. 
Braniff v. McPherren, 177 Ok!. 292, 58 P.2d 871, 872. A 
person chosen or appointed to manage, direct, or admin
ister the affairs of another person or of a business, 
sports team, or the like. The designation of "manager" 
implies general power and permits reasonable inferenc
es that the employee so designated is invested with the 
general conduct and control of his employer's business. 
U. S. Auto Ass'n v. Alexander Film Co., D.C.Mun.App., 
93 A.2d 770, 771. See also General manager. 
960 
Also one of the persons appointed on the part of the 
House of Representatives to prosecute impeachments 
before the Senate. 
Managers of a conference. In England, members of 
the houses of parliament appointed to represent each 
house at a conference between the two houses. It is an 
ancient rule that the number of commons named for a 
conference should be double those of the lords. 
Managing agent. See Agent. 
Managium Im�neyj(iy)�m/. A mansion-house or dwell
ing-place. 
Manas medire Imren�s miydiyiy/. Men of a mean condi
tion, or of the lowest degree. 
Manbote Imrenbowt/. In Saxon law, a compensation or 
recompense for homicide, particularly due to the lord for 
killing his man or vassal, the amount of which was 
regulated by that of the were. 
Manca, mancus, or mancusa ImrelJk�/mrelJk�s(�)/. A 
square piece of gold coin, commonly valued at thirty 
pence. 
Manceps Imrenseps/. Lat. In Roman law, a purchaser; 
one who took the article sold in his hand; a formality 
observed in certain sales. A farmer of the public taxes. 
Manche-present Imonsh preyzon/. A bribe; a present 
from the donor's own hand. 
Mancipare Imrens�periy/. Lat. In Roman law, to sell, 
alienate, or make over to another; to sell with certain 
formalities; to sell a person; one of the forms observed 
in the process of emancipation. 
Mancipate Imrens;}peyt/ . To enslave; to bind; to tie. 
Mancipatio Imrens;}peysh(iy)ow/. Lat. In Roman law, a 
certain ceremony or formal process anciently required 
to be performed, to perfect the sale or conveyance of res 
mancipi (land, houses, slaves, horses, or cattle). 
The parties were present (vendor and vendee), with 
five witnesses and a person called "libripens, " who held 
a balance or scales. A set form of words was repeated 
on either side, indicative of transfer of ownership, and 
certain prescribed gestures made, and the vendee then 
struck the scales with a piece of copper, thereby symbol
izing the payment, or weighing out, of the stipulated 
price. 
The ceremony of mancipatio was used, in later times, 
in one of the forms of making a will. The testator acted 
as vendor, and the heir (or familire emptor) as purchaser, 
the latter symbolically buying the whole estate or suc
cession, of the former. The ceremony was also used by a 
father in making a fictitious sale of his son, which sale, 
when three times repeated, effectuated the emancipa
tion of the son. 
Mancipi res Imrens�pay riyz/. Lat. In Roman law, 
certain classes of things which could not be aliened or 
transferred except by means of a certain formal ceremo
ny of conveyance called "maneipatio " (q.v.). These in
cluded land, houses, slaves, horses, and cattle. All other 
things were called "res nee maneipi."

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961
The distinction was abolished by Justinian. The dis
tinction corresponded as nearly as may be to the early
distinction of English law into real and personal proper
ty; res maneipi being objects of a military or agri
cultural character, and res nee maneipi being all other
subjects of property. Like personal estate, res nee man
eipi were not originally either valuable in se or valued.
Mancipium Imrensipiy�m/. Lat. In Roman law, the
momentary condition in which a filius, etc., might be
when in course of emancipation from the potestas, and
before that emancipation was absolutely complete. The
condition was not like the dominiea potestas over slaves,
but slaves are frequently called "maneipia" in the non
legal Roman authors.
To form a clear conception of the true import of the
word in the Roman jurisprudence, it is necessary to
advert to the four distinct powers which were exercised
by the pater familias, viz.; the manus, or martial power;
the maneipium, resulting from the maneipatio, or alien
atio per res et libram, of a freeman; the dominiea potes
tas, the power of the master over his slaves, and the
patria po tes tas , the paternal power. When the pater
familias sold his son, venum dare, maneipare, the pater
nal power was succeeded by the maneipium, or the
power acquired by the purchaser over the person whom
he held in maneipio, and whose condition was assimilat
ed to that of a slave. What is most remarkable is, that
on the emancipation from the maneipium he fell back
into the paternal power, which was not entirely exhaust
ed until he had been sold three times by the pater
familias. Si pater filium ter venum dat, filius a patre
liber esto. Gaius speaks of the maneipatio as imaginaria
quredam venditio, because in his times it was only
resorted to for the purpose of adoption or emancipation.
Mancomunal Imankomuwnal/. In Spanish law, an obli' gation is said to be maneomunal when one person as
sumes the contract or debt of another, and makes him
self liable to pay or fulfill it.
Mancus Imrel)bs/. See Manca, mancus, or mancusa.
Mandamiento Imandamyentow/. In Spanish law, com
mission; authority or power of attorney. A contract of
good faith, by which one person commits to the gratui
tous charge of another his affairs, and the latter accepts
the charge.
Mandamus Imrendeym�s/. Lat. We command. This is
the name of a writ (formerly a high prerogative writ)
which issues from a court of superior jurisdiction, and is
directed to a private or municipal corporation, or any of
its officers, or to an executive, administrative or judicial
officer, or to an inferior court, commanding the perform
ance of a particular act therein specified, and belonging
to his or their public, official, or ministerial duty, or
directing the restoration of the complainant to rights or
privileges of which he has been illegally deprived. A
writ issuing from a court of competent jurisdiction,
commanding an inferior tribunal, board, corporation, or
person to perform a purely ministerial duty imposed by
law. Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876, 882.
Extraordinary writ which lies to compel performance of
MANDATAIRE
ministerial act or mandatory duty where there is a clear
legal right in plaintiff, a corresponding duty in defen
dant, and a want of any other appropriate and adequate
remedy. Cohen v. Ford, 19 Pa.Cmwlth. 417, 339 A.2d
175, 177. See also Ministerial act.
The U.S. District Courts have original jurisdiction of
any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff. 28
U.S.C.A. § 1361.
Mandamus has traditionally issued in response to
abuses of judicial power. Thus, where a district judge
refuses to take some action he is required to take or
takes some action he is not empowered to take, manda
mus will lie. Bankers Life & Cas. Co. v. Holland, 346
U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106. The Supreme
Court may issue a writ of mandamus in aid of the
appellate jurisdiction that might otherwise be defeated
by the unauthorized action of the court below. McClel
lan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 503, 54 L.Ed.
762.
The remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations. Banker's Life
& Cas. Co. v. Holland, 346 U.S. 379, 382-385, 74 S.Ct.
145, 147-149, 98 L.Ed. 106; Ex parte Fahey, 332 U.S.
258, 259, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041. The writ
has traditionally been used in the federal courts only "to
confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so." Will v. United
States, 389 U.S., at 95, 88 S.Ct., at 273, quoting Roche v.
Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938,
941, 87 L.Ed. 11 85.
Pleading. Like most of the extraordinary writs, the writ
of mandamus has been abolished under rules practice in
favor of a complaint or motion in the nature of manda
mus which accomplishes the same object; e.g. Federal or
Mass.R.Civ.P. 81(b).
Mandans Imrendrenz/. Lat. In the civil law, the em
ploying party in a contract of mandate. One who gives
a thing in charge to another; one who requires, re
quests, or employs another to do some act for him.
Mandant Imrend�nt/. In French and Scotch law, the
employing party in the contract of mandatum, or man
date.
Mandataire Imrend�ter/ . Fr. In French law, a person
employed by another to do some act for him; a manda
tary.
Mandata licita recipiunt strictam interpretationem,
sed illicita latam et extensam Im�ndeyd� lis�t�
r�sipiy�nt strikt�m int;}rpr�teyshiyown�m, sed �lis�t�
leyt�m et �kstens�m/. Lawful commands receive a
strict interpretation, but unlawful commands a broad
and extended one.
Mandatarius terminos sibi positos transgredi non
potest Imrend�teriy�s t�rm�n�s sibay poz�tows trrenz
griyday non powtest/. A mandatary cannot exceed the
limits assigned him.

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MANDATARY 
Mandatary Imrend�teriy/. He to whom a mandate, 
charge, or commandment is given; also, he that obtains 
a benefice by mandamus. Briggs v. Spaulding, 141 U.S. 
132, 11 S.Ct. 924, 35 L.Ed. 662. 
Mandate. A command, order, or direction, written or 
oral, which court is authorized to give and person is 
bound to obey. Silverman v. Seneca Realty Co., 154 
Misc. 35, 276 N.Y.S. 466. A judicial command or pre
cept proceeding from a court or judicial officer, directing 
the proper officer to enforce a judgment, sentence, or 
decree. A precept or order issued upon the decision of 
an appeal or writ of error, directing action to be taken, 
or disposition to be made of case, by inferior court. 
Official mode of communicating judgment of appellate 
court to lower court, directing action to be taken or 
disposition to be made of cause by trial court. Tierney 
v. Tierney, Fla.App., 290 So.2d 136, 137. See also De
cree; Order. 
A bailment of property in regard to which the bailee 
engages to do some act without payment. Agreement to 
perform services for another without pay. 
A contract by which a lawful business is committed to 
the management of another, and by him undertaken to 
be performed gratuitously. The mandatary is bound to 
the exercise of slight diligence, and is responsible for 
gross neglect. Williams v. Conger, 125 U.S. 397, 8 S.Ct. 
933, 31 L.Ed. 778. 
A mandate, procuration, or letter of attorney is an act 
by which one person gives power to another to transact 
for him and in his name one or several affairs. See also 
Power of attorney. 
Mandato Imandatow/. In Spanish law, the contract of 
mandate. 
Mandator Imrendeyt�r/. The person employing another 
to perform a mandate. 
Mandatory Imrend�t(�)riy/. adj. Containing a com
mand; preceptive; imperative; peremptory; obligatory. 
Mandatory injunction Imrend�t(�)riy inj�1Jksh�n/. See 
Injunction. 
Mandatory instructions. See Jury instructions. 
Mandatory presumption. See Presumption. 
Mandatory sentencing. See Sentence. 
Mandatory statutes. Generic term describing statutes 
which require and not merely permit a course of action. 
They are characterized by such directives as "shall" and 
not "may." 
A "mandatory" provision in a statute is one the omis
sion to follow which renders the proceedings to which it 
relates void, while a "directory" provision is one the 
observance of which is not necessary to validity of the 
proceeding. It is also said that when the provision of a 
statute is the essence of the thing required to be done, it 
is mandatory, Kavanaugh v. Fash, C.C.A.OkI., 74 F.2d 
435, 437; otherwise, when it relates to form and man
ner, and where an act is incident, or after jurisdiction 
acquired, it is directory merely. 
962 
Mandatory statutory provision is one which must be 
observed, as distinguished from "directory" provision, 
which leaves it optional with department or officer to 
which addressed to obey it or not. State ex reI. Dwork
en v. Court of Common Pleas of Cuyahoga County, 131 
Ohio St. 23, 1 N.E.2d 138, 139, 5 0.0. 291. 
Mandatum Imrendeyt�m/. Lat. In the civil law, the 
contract of mandate (q.v.). 
Mandatum nisi gratuitum nullum est Imrendeyt�m 
naysay gr�tyuw�t�m n�l�m est/. Unless a mandate is 
gratuitous, it is not a mandate. 
Mandavi ballivo Im�ndeyvay brebvow/. (I have com
manded or made my mandate to the bailiff.) In English 
practice, the return made by a sheriff, where the bailiff 
of a liberty has the execution of a writ, that he has 
commanded the bailif f to execute it. 
Manerium Im�niriy�m/. In old English law, a manor. 
Manerium dicitur a manendo, secundum excellen
tiam, sedes magna, fixa, et stabilis Im�niriy�m dis�t�r 
ey m�nendow, s�k�nd�m eks�lensh(iy)�m, siydiyz mregn�, 
fiks�m, et steyb�l�s/. A manor is so called from manen
do, according to its excellence, a seat, great, fixed, and 
firm. 
Mangonare Imre1Jg�neriy/. In old English law, to buy in 
a market. 
Manhood. The status of one who has reached his legal 
majority which in most jurisdictions is 18. Formerly, it 
was the age of 21. When this status is achieved, a 
person may act sui juris. See also Legal age; Majority. 
In feudal law, a term denoting the ceremony of doing 
homage by the vassal to his lord. The formula used 
was, "Devenio vester homo': I become your man. 2 
BI.Comm. 54. 
Mania Imeyniy�/. See Insanity. 
Manic. Phase of manic-depressive psychosis in which 
the mood of the patient is overactive and expansive; 
characterized by excessive ego valuation and over-esti
mation of personal importance. Manic mood may in
clude boisterousness, joviality, anger, joyousness. 
Manifest. Evident to the senses, especially to the sight, 
obvious to the understanding, evident to the mind, not 
obscure or hidden, and is synonymous with open, clear, 
visible, unmistakable, indubitable, indisputable, evident, 
and self-evident. In evidence, that which is clear and 
requires no proof; that which is notorious. Houston v. 
Leyden Motor Coach Co., 102 IlI.App.2d 348, 243 N.E.2d 
293, 296; Graf v. Ford Motor Co., 102 IlI.App.2d 390, 243 
N.E.2d 337, 341. 
Document used in shipping and warehousing contain
ing a list of the contents, value, origin, carrier and 
destination of the goods to be shipped or warehoused. A 
written document required to be carried by merchant 
vessels, containing an account of the cargo, with other 
particulars, for the facility of the customs officers. The 
Sylvia II, D.C.Mass., 28 F.2d 215, 216. See 19 U.S.C.A. 
§ 1431 et seq. List of passengers and cargo kept by 
vessel and aircraft.

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963 
Manifesta probatione non indigent /mren;}fest;} 
pr;}beyshiy6wniy non ind;}j;}nt/. Things manifest do not 
require proof. 
Manifestation of intention. In trusts and wills, the 
external expression of intention as distinguished from 
the undisclosed internal intention. Restatement of 
Trusts, Second, § 2, comment g. 
Manifest law. See Lex manifesta, s. v. Lex. 
Manifest necessity. Doctrine of "man ifest necessity" 
which will authorize granting of mistrial in criminal 
case, and preclude defendant from successfully raising 
plea of former jeopardy, contemplates a sudden and 
overwhelming emergency beyond control of court and 
unforeseeable, and it does not mean expediency. Fonse
ca v. Judges of Family Court of Kings County, 59 
Misc.2d 492, 496, 299 N.Y.S.2d 493, 498. Such exists 
where, due to circumstances beyond control of parties 
and court, it becomes no longer possible to conduct trial, 
or to reach a fair result based upon the evidence. Peo
ple v. Turner, 105 Ill.App.3d 393, 61 Ill.Dec. 275, 278, 
434 N.E.2d 428, 431. 
Manifesto /mren;}festow/. A formal written declaration, 
promulgated by a sovereign, or by the executive authori
ty of a state or nation, proclaiming its reasons and 
motives for declaring a war, or for any other important 
international action. Public declaration or proclama
tion of political or social principals. 
Manifest weight of evidence. The word "manifest", in 
rule that appellate court cannot substitute its opinion 
for that of trial court as to facts unless trial court's 
finding is manifestly against the weight of the evidence, 
means unmistakable, clear, plain, or indisputable, and 
requires that an opposite conclusion be clearly evident. 
Levin v. Siver, 27 Ill.App.2d 134, 169 N.E.2d 156. 
Manipulation. Series of transactions involving the buy
ing or selling of a security for the purpose of creating a 
false or misleading appearance of active trading or to 
raise or depress the price to induce the purchase or sale 
by others. Such acts are prohibited by Sec. 1O(b) of the 
Securities Exchange Act of 1934, 15 V.S.C.A. § 78i, j. 
See also Wash sale. 
Term as used in provision in Securities Exchange Act 
of 1934 [15 V.S.C.A. § 78n(e) ] prohibiting use of manipu
lative practices in tender offers connotes conduct de
signed to deceive or defraud investors by controlling or 
artificially affecting price of securities. Schreiber v. 
Burlington Northern, Inc., 472 V.S. 1, 4, 105 S.Ct. 2458, 
2461, 86 L.Ed.2d 1. 
Mankind. The race or species of human beings. In law, 
females, as well as males, are included under this term. 
Mann Act. Federal statute (White Slave Traffic Act, 18 
V.S.C.A. § 2421) making it a crime to transport a woman 
or girl in interstate or foreign commerce for the purpose 
of prostitution or debauchery, or for any other immoral 
purpose. 
MANORIAL EXTENT 
Manner. A way, mode, method of doing anything, or 
mode of proceeding in any case or situation. See also 
Custom and Usage. 
Manner and form; modo et forma. In common law 
pleading, formal words introduced at the conclusion of a 
traverse. Their object is to put the party whose plead
ing is traversed not only to the proof that the matter of 
fact denied is, in its general effect, true as alleged, but 
also that the manner and form in which the fact or facts 
are set forth are also capable of proof. 
Manning. A day's work of a man. A summoning to 
court. 
Mannire /m:mayri y/. To cite any person to appear in 
court and stand in judgment there. It is different from 
bannire; for, though both of them are citations, this is 
by the adverse party, and that is by the judge. 
Mannopus /mrenowp;}s/. In old English law, goods tak
en in the hands of an apprehended thief. The same as 
"mainour" (q.v.). 
Man of straw. See Men of straw. 
Manor. A house, dwelling, seat, or residence. 
In English law, the manor was originally a tract of 
land granted out by the king to a lord ·or other great 
person, in fee. It was otherwise called a "barony" or 
"lordship," and appendant to it was the right to hold a 
court, called the "court-baron ." The lands comprised in 
the manor were divided into terrre tenementales (tene
mental lands or bocland) and terrre dominicales, or de
mesne lands. The former were given by the lord of the 
manor to his followers or retainers in freehold. The 
latter were such as he reserved for his own use; but of 
these part were held by tenants in copyhold, i.e., those 
holding by a copy of the record in the lord's court; and 
part, under the name of the "lord's waste," served for 
public roads and commons of pasture for the lord and 
tenants. The tenants, considered in their relation to the 
court-baron and to each other, were called "pares curire". 
The word also signified the franchise of having a manor, 
with jurisdiction for a court-baron and the right to the 
rents and services of copyholders. 
Reputed manor. Whenever the demesne lands and the 
services become absolutely separated, the manor ceases 
to be a manor in reality, although it may (and usually 
does) continue to be a manor in reputation, and is then 
called a "reputed manor," and it is also sometimes 
called a "seigniory in gross." 
Manorial extent /m;}noriy;}l ;}kstent/. In old English 
law, a survey of a manor made by a jury of tenants, 
often of unfree men sworn to sit for the particulars of 
each tenancy, and containing the smallest details as to 
the nature of the service due. These manorial extents 
were made in the interest of the lords, who were anxious 
that all due services should be done; but they imply 
that other and greater services were not due, that the 
customary tenants, even though they be unfree men, 
owed these services for their tenements, no less and no 
more. Statements that the tenants were not bound to 
do services of a particular kind were not very uncom-

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MANORIAL EXTENT 
mono The "extents" of manors are descriptions which 
give the numbers and names of the tenants, the size of 
their holdings, the legal kind of their tenure and the 
kind and amount of their service. 
Manorial system. A medieval system of land ownership 
by lords of the manor for whom serfs and some freemen 
toiled in the soil in return for protection from the lord. 
See also Manor. 
Manqueller Imrenkwel�r;okil�r/. In Saxon law, a mur
derer. 
Manse Imrens/. In old English law, a habitation or 
dwelling, generally with land attached. A residence or 
dwelling-house for the parish priest; a parsonage or 
vicarage house. 
Manser Imrens�r/. A bastard. 
Mansio Imrensh(iy)ow/. In Anglo-Saxon times the 
amount of land which would support a man and his 
family, called by various names. 
Mansion-house. In the law of burglary, etc., any species 
of dwelling-house. 
Manslaughter. The unjustifiable, inexcusable and in
tentional killing of a human being without deliberation, 
premeditation and malice. State V. Banister, Mo.App., 
512 S.W.2d 843, 845. The unlawful killing of a human 
without any deliberation, which may be involuntary, in 
the commission of a lawful act without due caution and 
circumspection. Wallace V. U. S., 162 U.S. 466, 16 S.Ct. 
859, 40 L.Ed. 1039. 
Criminal homicide constitutes manslaughter when: 
(a) it is committed recklessly; or (b) a homicide which 
would otherwise be murder is committed under the 
influence of extreme mental or emotional disturbance 
for which there is reasonable explanation or excuse. 
The reasonableness of such explanation or excuse shall 
be determined from the viewpoint of a person in the 
actor's situation under the circumstances as he believes 
them to be. Model Penal Code, § 210.3. 
The heat of passion, which will reduce a murder to 
manslaughter, must be such passion as would be 
aroused naturally in the mind of the ordinary reason
able person under the same or similar circumstances, as 
shown by the evidence in the case. 
See also Adequate cause; Assault with intent to commit 
manslaughter; Hot blood; Negligent manslaughter; Sud
den heat of passion. 
There are various types or degrees of manslaughter 
recognized by federal and state statutes: 
Involuntary manslaughter. Such exists where a person 
in committing an unlawful act not felonious or tending 
to great bodily harm, or in committing a lawful act 
without proper caution or requisite skill, unguardedly or 
undesignedly kills another. Model Penal Code, 
§ 21O.3(1) (a); 18 U.S.C.A. § 111 2. Compare Accidental 
killing. 
Voluntary manslaughter. Manslaughter committed vol
untarily upon a sudden heat of the passions; as if, upon 
a sudden quarrel, two persons fight, and one of them 
964 
kills the other. Model Penal Code, § 21O.3(1) (b); 18 
U.S.C.A. § 111 2. It is the unlawful taking of human life 
without malice and under circumstances falling short of 
willful, premeditated, or deliberate intent to kill and 
approaching too near thereto to be justifiable homicide. 
The absence of intention to kill or to commit any 
unlawful act which might reasonably produce death or 
great bodily harm is the distinguishing feature between 
voluntary and involuntary homicide. 
Manstealing. A word sometimes used synonymously 
with "kidnapping" (q. v.). 
Mansuetae naturae Imrenswiytiy n�tyuriy/. Tamed 
and domesticated animals. 
Mansuetus Imrenswiyt�s/. Lat. Tame; as though ac-
customed to come to the hand. 
Mantheoff ImrenOiyf/. In Saxon law, a horse-stealer. 
Manticulate Imrentiky�leyt/ . To pick pockets. 
Mantle children Imrent�l childr�n/. See Pallio cooper
ire. 
Manual. Of, or pertaining to, the hand or hands; done, 
made, or operated by or used with the hand or hands; or 
as manual labor. Performed by the hand; used or 
employed by the hand; held in the hand. See also 
Manual labor. 
Manual delivery. Delivery of personal property sold, 
donated, mortgag ed, etc., by passing it into the "hand" 
of the purchaser or transferee, that is, by an actual and 
corporeal change of possession. 
Manual gift. The manual gift, that is, the giving of 
corporeal movable effects, accompanied by a real deliv
ery; such is not subject to any formality. 
Manualis obedientia Imrenyuweyl�s �biydiyensh(iy)�/. 
Sworn obedience or submission upon oath. 
Manual labor. Work done with the hand. State V. Ash, 
53 Ariz. 197, 87 P.2d 270, 272. Labor performed by 
hand or by the exercise of physical force, with or with
out the aid of tools, machinery or equipment, but de
pending for its effectiveness chiefly upon personal mus
cular exertion rather than upon skill, intelligence or 
adroitness. 
Manu brevi Imren(y)uw briyvay/. Lat. With a short 
hand. A term used in the civil law, signifying shortly; 
directly; by the shortest course; without circuity. 
Manucaptio Imrenyuwkrepsh(iy)ow/. In old English 
practice, a writ which lay for a man taken on suspicion 
of felony, and the like, who could not be admitted to bail 
by the sheriff, or others having power to let to main
prise. 
Manucaptors Imrenyuwkrept�rz/. Same as mainpernors 
(q.v.). 
Manufacture. V. From Latin words manus and factura, 
literally, put together by hand. Now it means the 
process of making products by hand, machinery, or 
other automated means. United States v. Anderson, 
D.C.Cal., 45 F.Supp. 943, 946. Meaning of word "manu-

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965 
facture," which is defined as the making of goods or 
wares by manual labor or by machinery, especially on a 
large scale, has expanded as workmanship and art have 
advanced, so that now nearly all artificial products of 
human industry, nearly all such materials as have ac
quired changed conditions or new and specific combina
tions, whether from the direct action of the human 
hand, from chemical processes devised and directed by 
human skill, or by the employment of machinery, are 
commonly designated as "manuf actured." 
Manufacture. n. The process or operation of making 
goods or any material produced by hand, by machinery 
or by other agency; anything made from raw materials 
by the hand, by machinery, or by art. The production of 
articles for use from raw or prepared materials by 
giving such materials new forms, qualities, properties or 
combinations, whether by hand labor or machine. 
Cain's Coffee Co. v. City of Muskogee, 171 Okl. 635, 44 
P.2d 50, 52. 
In patent law, any useful product made directly by 
human labor, or by the aid of machinery directed and 
controlled by human power, and either from raw materi
als, or from materials worked up into a new form. Also 
the process by which such products are made or fash
ioned. 
Manufacturer. One who by labor, art, or skill trans
forms raw material into some kind of a finished product 
or article of trade. Henry v. Markesan State Bank, 
C.C.A.Minn., 68 F.2d 554, 557. Any individual, partner
ship, corporation, association, or other legal relationship 
which manufactures, assembles, or produces goods. 
Manufacturers liability doctrine. The foundation for 
the liability under this doctrine is knowledge of the 
danger attending use of manufactured or assembled 
product and negligence in failing to give appropriate 
warning, or negligence in failing to discover and appreci
ate the danger, and the probable consequences that 
injury will proximately result from the use of such 
product for the purposes for which it was intended. See 
Strict liability. 
Manufacturing corporation. A corporation engaged in 
the production of some article, thing, or object, by skill 
or labor, out of raw material, or from matter which has 
already been subjected to artificial forces, or to which 
something has been added to change its natural condi
tion. 
Manufacturing establishment. Any place where ma
chinery is used for manufacturing purposes. Lilley v. 
Eberhardt, Mo., 37 S.W.2d 599, 601. 
Manu forti /mren(y)uw fortay/. Lat. With strong hand. 
A term used in old writs of trespass. Manu forti et cum 
multit udine gentium, with strong hand and multitude of 
people. 
Manu longa /mren(y)uw lOIJg�/. Lat. With a long hand. 
A term used in the civil law, signifying indirectly or 
circuitously. 
Manumission /mreny�mish�n/. The act of liberating a 
slave from bondage and giving him freedom. In a wider 
• 
MAPP v. omo 
sense, releasing or delivering one person from the power 
or control of another. Enfranchisement. 
Manumittere idem est quod extra manum vel postes
tatem ponere /mreny�mit�riy ayd�m est kw6d ekstr� 
mren�m vel powd�steyt�m p6wn�riy/. To manumit is 
the same as to place beyond hand and power. 
Manung or monung. In old English law, the district 
within the jurisdiction of a reeve, apparently so called 
from his power to exercise therein one of his chief 
functions, viz., to exact (amanian) all fines. 
Manu opera /mren(y)uw op�r�/. Lat. Cattle or imple
ments of husbandry; also stolen goods taken from a 
thief caught in the fact. 
Manupes /mreny�piyz/. In old English law, a foot of full 
and legal measure. 
Manupretium /mreny�priysh(iy)�m/. Lat. In Roman 
law, the hire or wages of labor; compensation for labor 
or services performed. 
Manurable /m�n(y)ur�b�l/. In old English law, capable 
of being had or held in hand; capable of manual occupa
tion; capable of being cultivated; capable of being 
touched; tangible; corporeal. 
Manure. In old English law, to occupy; to use or culti
vate; to have in manual occupation; to bestow manual 
labor upon. 
Manus /mren�s/. Lat. A hand. 
In the civil law, this word signified power, control, 
authority, the right of physical coercion, and was often 
used as synonymous with "potestas." 
In old English law, it signified an oath or the person 
taking an oath; a compurgator. 
Manuscript. An author's work product which is sub
mitted to the publisher either in his own hand, typewrit
ten, on word processing disk, or the like. Lit., written 
by hand. A writing that has not as yet been printed 
and published. 
Manus mortua /mren�s mortyuw�/. A dead hand; 
mortmain. 
Manutenentia /mreny�t�nensh(iy)�/. The old writ of 
maintenance. 
Manworth. In old English law, the price of value of a 
man's life or head. 
Many. The word "many" is defined as consisting of a 
great number, numerous, not few. Many is a word of 
very indefinite meaning, and, though it is defined to be 
numerous and multitudinous, it is also recognized as 
synonymous with "several", "sundry", "various" and 
"divers". Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79, 
87. 
Map. A representation of the earth's surface, or of some 
portion of it, showing the relative position of the parts 
represented, usually on a flat surface. See also Plat 
map. 
Mapp v. Ohio. Landmark Supreme Court case decided 
in 1961 in which it was ruled that evidence illegally

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MAPP v. OHIO 
obtained by state officers is not admissible in a state 
trial if appropriate motions are filed to suppress. The 
rationale for the rule is that the 4th Amendment (U.S. 
Const.) protection against unreasonable search and sei
zure is applicable to the states under and through the 
14th Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 
1684, 6 L.Ed.2d 108!. 
Mar. To make defective; to damage greatly; to impair, 
spoil, ruin; to do physical injury to, especially by cutting 
off or defacing a part; to mutilate; mangle; disfigure; 
deface. 
Mara Imer'J/. In old records, a mere or moor; a lake, 
pool, or pond; a bog or marsh that cannot be drained. 
Marajuana. See Marihuana. 
Maraud. To rove about in search of booty; to pillage or 
plunder. To invade another's domain to pillage or to 
loot. 
Marbury v. Madison. Landmark case decided in 1803 
in which the Supreme Court established the right of the 
judicial branch to pass on the constitutionality of an act 
of Congress, thereby establishing the functions and pre
rogatives of the judiciary in its relation to the legislative 
branch. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 
L.Ed. 60. 
Marcatus Imarkeyt'Js/. The rent of a mark by the year 
anciently reserved in leases, etc. 
Marchandises avariees. In French mercantile law, 
damaged goods. 
Marchers. In old English law, noblemen who lived on 
the marches of Wales or Scotland, and who, according to 
Camden, had their private laws, as if they had been 
petty kings; which were abolished by the statute 27 
Hen. VIII, c. 26. Called also "lords marchers." 
Marches. An old English term for boundaries or fron
tiers, particularly the boundaries and limits between 
England and Wales, or between England and Scotland, 
or the borders of the dominions of the crown, or the 
boundaries of properties in Scotland. 
Marcheta Imarkeyt'J/. In old English law, a fine paid 
for leave to marry, or to bestow a daughter in marriage. 
Marchioness Imarsh'Jnes/. A dignity in a woman an
swerable to that of marquis in a man, conferred either 
by creation or by marriage with a marquis. 
Mare Imeriy/. Lat. The sea. 
Marescallus Imrer'Jskrei'Js/. In old English law, a mar
shal; a master of the stables; an officer of the excheq
uer; a military officer of high rank, having powers and 
duties similar to those of a constable. See also Marshal. 
Mareschal Imrer'Jshrel/. L. Fr. Marshal; a high officer 
of the royal household. 
Marettum 1 m'Jret'Jm I. Marshy ground overflowed by 
the sea or great rivers. 
Margin. The edge or border; the edge of a body of water 
where it meets the land. As applied to a boundary line 
of land, the "margin" of a river, creek, or other water-
966 
course means the center of the stream. But in the case 
of a lake, bay, or natural pond, the "margin" means the 
line where land and water meet. 
In finance, difference between market value of loan 
collateral and face value of loan. 
A sum of money, or its equivalent, placed in the hands 
of a broker by the principal or person on whose account 
a purchase or sale of securities is to be made, as a 
security to the former against losses to which he may be 
exposed by subsequent fluctuations in the market value 
of the stock. The amount paid by the customer when he 
uses his broker's credit to buy a security. See also 
Margin account; Margin transaction. 
In commercial transactions the difference between the 
purchase price paid by a middleman or retailer and his 
selling price, or difference between price received by 
manufacturer for its goods and costs to produce. Also 
called gross profit margin. See also Profit; Remargining. 
Margin account. Securities industry's method of ex
tending credit to customers. Under such practice cus
tomer purchases specified amount of stock from securi
ties firm by advancing only portion of purchase price, 
with brokerage firm extending credit or making loan for 
balance due, and firm maintains such stock as collateral 
for loan and charges interest on balance of purchase 
price. Margin account requirements are specified by 
regulations of Federal Reserve Board. See 15 U.S.C.A. 
§ 78g. Stephens v. Reynolds Securities, Inc., D.C.Ala., 
413 F.Supp. 50. See also Margin transaction. 
Marginal street. Dock or wharf used in conjunction 
with and in furtherance of commerce and navigation. 
In re Triborough Bridge Approach, City of New York, 
159 Misc. 617, 288 N.Y.S. 697, 711, 716. 
Margin call. A demand by a broker to put up money or 
securities upon purchase of a stock, or, if the stock is 
already owned on margin, to increase the money or 
securities in the event the price of the stock has or is 
likely to fall since purchase. The last process (of main
taining the minimum required margin) is remargining. 
See Margin requirement. 
Margin list. List of Federal Reserve Board which limits 
the loan value of a bank's stock to a certain per cent (e.g. 
50%) of its market value. When a bank is not on the 
margin list, no limit is placed on the value of its stock 
for use as collateral. 
Margin profit. See Margin; Profit. 
Margin requirement. The percentage of the purchase 
price that must be deposited with a broker to purchase a 
security on margin . The margin requirement is set or 
adjusted by the Federal Reserve Board. 
Margin trading. See Margin; Margin account; Margin 
transaction. 
Margin transaction. The purchase of a stock or com
modity with payment in part in cash (called the margin) 
and in part by a loan. Usually the loan is made by the 
broker effecting the purchase. See also Margin account.

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967 
Marihuana, mariguana, marijuana /mrer�(h)w6n�/. 
An annual herb, cannabis sativa, having angular rough 
stem and deeply lobed leaves. The bast fibres of canna
bis are the hemp of commerce. A drug prepared from 
"cannabis sativa," designated in technical dictionaries 
as "cannabis" and commonly known as marijuana, mari
huana, marajuana, or maraguana. State v. Navaro, 83 
Utah 6, 26 P.2d 955. 
"Marihuana" means all parts of the plant Cannabis 
sativa L., whether growing or not; the seeds thereof; 
the resin extracted from any part of the plant; and 
every compound, manufacture, salt, derivative, mixture, 
or preparation of the plant, its seeds or resin. It does 
not include the mature stalks of the plant, fiber produc
ed from the stalks, oil or cake made from the seeds of 
the plant, any other compound, manufacture, salt, deriv
ative, mixture, or preparation of the mature stalks (ex
cept the resin extracted therefrom), fiber, oil, or cake, or 
the sterilized seed of the plant which is incapable of 
germination. Uniform Controlled Substances Act, 21 
U.S.C.A. § 802. See also Cannabis. 
Marihuana is also commonly referred to as "pot", 
"grass", "tea", "weed" or "Mary-Jane" ; and in cigarette 
form as a "joint" or "reef er" . 
Marinarius /mrer:meriy;}s/. An ancient word which sig
nified a mariner or seaman. In England, marinarius 
capitaneus was the admiral or warden of the ports. 
Marine. Naval; relating or pertaining to the sea; na
tive to or formed by the sea, such as marine life; trans
acted at sea; doing duty or service on the sea. The 
mercantile and naval shipping of a country. Concerned 
with navigation and commerce of the sea; i.e. maritime 
matters. Member of U.S. Marine Corps. See also Mari
time. 
Marine belt. That portion of the main or open sea, 
adjacent to the shores of a given country, over which the 
jurisdiction of its municipal laws and local authorities 
extends. Territorial waters, defined by international 
law as extending out three miles from the shore. See 
also Territorial waters. 
Marine carrier. By statutes of several states this term 
is applied to carriers plying upon the ocean, arms of the 
sea, the Great Lakes, and other navigable waters within 
the jurisdiction of the United States. 
Marine contract. One relating to maritime affairs, 
shipping, navigation, marine insurance, affreightment, 
maritime loans, or other business to be done upon the 
sea or in connection with navigation. See e.g. Bareboat 
charter. 
Marine court in the city of New York. Formerly, a 
local court of New York City, originally created as a 
tribunal for the settlement of causes between seamen. 
It was the predecessor of the City Court of the city of 
New York. 
Marine insurance. See Ins urance. 
Marine interest. Interest, allowed to be stipulated for 
at an extraordinary rate, for the use and risk of money 
loaned on respondentia and bottomry bonds. 
MARITAL COMMUNICATIONS PRIVILEGE 
Marine league /m�riyn liyg/. A measure of distance 
commonly employed at sea, being equal to one-twentieth 
part of a degree of latitude, or three geographical or 
nautical miles.· 
Mariner. A seaman or sailor; one engaged in navigat
ing vessels upon the sea; persons employed aboard ships 
or vessels. 
Marine risk. The perils of the sea; the perils necessar
ily incident to navigation. 
Mariner's will. A nuncupative or oral will permitted in 
some jurisdictions for the sailor who is actually at sea at 
the time of making the will. Generally, such will affects 
personal property only. 
Maris et freminre conjunctio est de jure naturre 
/m,l!r;}s et fem;}niy k;}nj;}1)ksh(iy)ow est diy juriy 
n;}tyuriy / . The connection of male and female is by the 
law of nature. 
Maritagio amisso per defaltam /mrer;}teyj(iy)ow �misow 
p:lr d;}f6It;}m/. An obsolete writ for the tenant in frank
marriage to recover lands, etc., of which he was de
forced. 
Maritagium /mrer;}teyj(iy);}m/. The portion which is 
given with a daughter in marriage. Also the power 
which the lord or guardian in chivalry had of disposing 
of his infant ward in matrimony. 
Maritagium est aut liberum aut servitio obligatum; 
liberum maritagium dicitur ubi donator vult quod 
terra sic data quieta sit et libera ab omni seculari 
servitio /mrer;}teyjiy�m est ot lib;}r�m ot s;}rvishiy�m 
obl;}geyt;}m; Hb;}r;}m mrer;}teyjiy;}m dis;}t;}r yuwbay 
d;}neyt;}r v;}lt kwod tehr;} sik deyt;} kwayiyt;} sit et liber� 
reb 6mnay seky�leray s;}rvishiyow / . A marriage portion 
is either free or bound to service; it is called "frank
marriage" when the giver wills that land thus given be 
exempt from all secular service. 
Maritagium habere /mrer;}teyj(iy);}m h�biriy/. To have 
the free disposal of an heiress in marriage. 
Marital /mrer;}t�l/m;}rayt;}lI. Relating to, or connected 
with, the status of marriage; pertaining to a husband; 
incident to a husband. 
Marital agreements. Contracts between parties who 
are either on the threshold of marriage or on the verge 
of separation, though, in general, the term refers to all 
agreements between married people. Such agreements 
are primarily concerned with the division and owner
ship of marital property. In some jurisdictions, the 
contract must be made through a third person if the law 
does not permit the spouses to contract directly with 
each other. A number of states have adopted the Uni
form Premarital Agreement Act. See also Antenuptial 
agreement; Equitable distribution; Marriage settlement; 
Post-nuptial agreement. 
Marital communications privilege. In most jurisdic
tions private communications between the spouses dur
ing the marriage are privileged at the option of the 
witness spouse and hence inadmissible in a trial. In 
some jurisdictions the communications are disqualified,

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MARITAL COMMUNICATIONS PRIVILEGE 
and hence not admissible, even with the consent of the 
witness spouse. This privilege is subject to certain limi
tations; e.g. prosecutions for crimes committed by one 
spouse against the other or against the children of 
either; also, communications made in letter dictated by 
husband to stenographer to his wife is not within privi
lege, Wolfle v. U.S., 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 
617; presence of third party and intent that third party 
communicate message destroys privilege. See also Hus
band-wife privilege. 
Marital deduction. A deduction allowed upon the 
transfer of property from one spouse to another. The 
deduction is allowed under the Federal gift tax for 
lifetime (i.e., inter vivos) transfers and also under the 
Federal estate tax for testamentary transfers. There is 
no ceiling on the estate tax marital deduction for dece
dents dying after 1981. I.R.C. §§ 2056, 2523. See also 
Pecuniary formulas. 
Marital deduction trust. In estate planning, a device 
in the form of a trust utilized to gain the maximum 
benefit of the marital deduction by dividing the property 
in half. Commonly, one half of the property is transfer
red to the marital deduction trust and the other half is 
disposed of in a trust or like arrangement with a view 
towards having it escape taxation in the estate of the 
surviving spouse. As a result of a change in the law 
with respect to the estate of decedents dying after 1981, 
the marital deduction trust is generally not used. The 
law provides that there is no monetary ceiling on the 
estate tax marital deduction for decedents dying after 
1981. 
Marital portion. In Louisiana, the name given to that 
part of a deceased husband's estate to which the widow 
is entitled. 
Marital privileges. Those rights, immunities and ad
vantages which attach to the state of marriage such as 
the right to connubial relations and the right to hold 
property as husband and wife. See also Marital communi
cations privilege. 
Marital property. Term used to describe property of 
spouses subject to equitable distribution upon termi
nation of marriage. Marriage of Schwartz, 1 Dist., 131 
Ill.App.3d 35 1, 86 Ill. Dec. 698, 701, 475 N.E.2d 1077, 
1080. Property purchased or otherwise accumulated by 
spouses while married to each other and which, in most 
jurisdictions, on dissolution of the marriage is divided in 
proportions as the court deems fit. Claunch v. Claunch, 
Mo.App., 525 S.W.2d 788, 790. See Co mm unity property; 
Equitable distribution; Property; Separate property. 
Marital rights and duties. Those arising from mar
riage contract and constituting its object, and therefore 
embracing what the parties agree to perform towards 
each other and to society. Rights of husband and wife 
to a specified share of other's personal estate upon death 
of other. In re Dean's Estate, 350 Mo. 494, 166 S.W.2d 
529, 534, 535. 
968 
Maritima Angliae /m;}rit;}m;} relJgliyiy/. In old English 
law, the emolument or revenue coming to the king from 
the sea, which the sheriffs anciently collected, but which 
was afterwards granted to the admiral. 
Maritima incrementa /m;}rit;}m;} ilJkr;}mEmt;}/. In old 
English law, marine increases. Lands gained from the 
sea. 
Maritime. Pertaining to navigable waters, i.e. to the 
sea, ocean, great lakes, navigable rivers, or the naviga
tion or commerce thereof. 
All work occurring on navigable waters is "maritime" 
within meaning of Longshore and Harbor Workers' 
Compensation Act. St. Julien v. Diamond M Drilling, 
D.C.La., 403 F.Supp. 1256, 1259. 
See also Federal Maritime Commission; Maritime court; 
Navigable waters. 
Maritime Administration. An agency within the De
partment of Commerce which promotes and regulates 
the activities of the U.S. merchant marine, directs emer
gency operations related to merchant marine activities, 
establishes specifications for shipbuilding and design, 
determines routes, and manages other areas of mer
chant operations. The Maritime Act of 1981 transferred 
the Maritime Administration to the Department of 
Transportation. See also Maritime Commission. 
Maritime belt. That part of the sea which, in contradis
tinction to the open sea, is under the sway of the 
riparian states. Louisiana v. Mississippi, 202 U.S. 1, 26 
S.Ct. 408, 50 L.Ed. 913. See also Marine belt; Territorial 
waters. 
Maritime bills. See Bill (Maritime Law). 
Maritime cause of action. A case arising on the sea, 
ocean, great lakes, or navigable rivers, or from some act 
or contract concerning the commerce and navigation 
thereof. The Thomas Jefferson, 23 U.S. (10 Wheat.) 428, 
6 L.Ed. 358; and Peyroux v. Howard, 32 U.S. (7 Pet.) 
324, 8 L.Ed. 700. An action based upon an injury to a 
passenger of a vessel while on navigable waters and 
caused by negligence comes within scope of "maritime 
cause of action" within original jurisdiction of federal 
District Court. Cuozzo v. Italian Line, Italia-Societa Per 
Azioni Di Navigazione-Ge noa, D.C.N.Y., 168 F.Supp. 
304, 306. See also Maritime jurisdiction; Maritime law; 
Maritime tort; Navigable waters. 
Maritime Commission. The Federal Maritime Commis
sion regulates the waterborne foreign and domestic off
shore commerce of the United States, assures that Unit
ed States international trade is open to all nations on 
fair and equitable terms, and guards against unautho
rized monopoly in the waterborne commerce of the 
United States. This is accomplished through maintain
ing surveillance over steamship conferences and com
mon carriers by water; assuring that only the rates on 
file with the Commission are charged; approving agree
ments between persons subject to the Shipping Acts of 
1916 and 1984; guaranteeing equal treatment to ship
pers and carriers by terminal operators, freight forward
ers, and other persons subject to the shipping statutes;

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969 
and ensuring that adequate levels of financial responsi
bility are maintained for indemnification of passengers 
or oil spill cleanup. See also Maritime Administration. 
Maritime contract. A contract relating to business of 
navigation. Massman Const. Co. v. Bassett, D.C.Mo., 30 
F.Supp. 813, 815. A contract whose subject-matter has 
relation to the navigation of the seas or to trade or 
commerce to be conducted by navigation or to be done 
upon the sea or in ports. One having reference to 
maritime services or maritime transactions. Marubeni
!ida (America), Inc. v. Nippon Yusen Kaisha, D.C.N.Y., 
207 F.Supp. 418, 419. As regards right to jury trial in 
contract disputes, see 28 U.S.C.A. § 1873. 
Maritime court. A court exercising jurisdiction in mari
time causes; one which possesses the powers and juris
diction of a court of admiralty. See Admiralty court; 
Maritime jurisdiction. 
Maritime interest. An expression equivalent to marine 
interest (q.v.). 
Maritime jurisdiction. Jurisdiction over maritime 
causes is granted to Federal district courts. 28 U.S.C.A. 
§ 1333. Procedure in maritime actions is governed by 
the Federal Rules of Civil Procedure and Supp. Admiral
ty Rules. See Admiralty court. 
Maritime law. That which the Congress has enacted or 
the Federal courts, sitting in admiralty, or in the exer
cise of their maritime jurisdiction, have declared and 
would apply. J. B. Effenson Co. v. Three Bays Corp., 
C.A.Fla., 238 F.2d 611, 615. That system of law which 
particularly relates to marine commerce and navigation, 
to business transacted at sea or relating to navigation, to 
ships and shipping, to seamen, to the transportation of 
persons and property by sea, and to marine affairs 
generally. The law relating to harbors, ships, and sea
men, divided into a variety of subject areas, such as 
those concerning harbors, property of ships, duties and 
rights of masters and seamen, contracts of affreight
ment, average, salvage, etc. It extends to civil marine 
torts and injuries, illegal dispossession or withholding of 
possession from the owners of ships, municipal seizures 
of ships, etc. 
Substantively, in the United States, it is federal law, 
and jurisdiction to administer it is vested in the federal 
courts, though not to the entire exclusion of the courts 
of the states. O'Donnell v. Great Lakes Dredge & Dock 
Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596. See Maritime 
jurisdiction. 
Maritime lien. A privileged claim on a vessel for some 
service rendered to it to facilitate its use in navigation, 
or an injury caused by it in navigable waters, to be 
carried into effect by legal process in the admiralty 
court. The Westmoor, D.C.Or., 27 F.2d 886, 887. A 
special property right in a ship given to a creditor by 
law as security for a debt or claim subsisting from the 
moment the debt arises with right to have the ship sold 
and debt paid out of proceeds. Such a lien is a proprie
tary interest or right of property in the vessel itself, and 
not a cause of action or demand for personal judgment 
against the owner. The lien is enforced by a direct 
MARK 
proceeding against the vessel or other property in which 
it exists. See Supp.Admiralty Rule C. 
Any person furnishing repairs, supplies, towage, use of 
dry dock or marine railway, or other necessaries, to any 
vessel, whether foreign or domestic, upon the order of 
the owner of such vessel, or of a person authorized by 
the owner, shall have a maritime lien on the vessel, 
which may be enforced by suit in rem, and it shall not 
be necessary to allege or prove that credit was given to 
the vessel. Federal Maritime Lien Act, § 971. 
Maritime loan. A contract or agreement by which one, 
who is the lender, lends to another, who is the borrower, 
a certain sum of money, upon condition that if the thing 
upon which the loan has been made should be lost by 
any peril of the sea, or vis major, the lender shall not be 
repaid unless what remains shall be equal to the sum 
borrowed; and if the thing arrive in safety, or in case it 
shall not have been injured but by its own defects or the 
fault of the master or mariners, the borrower shall be 
bound to return the sum borrowed, together with a 
certain sum agreed upon as the price of the hazard 
incurred. 
Maritime prize. See Prize. 
Maritime service. In �alty law, a service rendered 
upon the seas, ocean, great lakes, or a navigable river, 
and which has some relation to commerce or navigation, 
-some connection with a vessel employed in trade, with 
her equipment, her preservation, or the preservation of 
her cargo or crew. 
Maritime state. In English law, consigts of the officers 
and mariners of the British navy, who are governed by 
express and permanent laws, or the articles of the navy, 
established by act of parliament. 
Maritime tort. Civil wrongs committed on navigable 
waters. Pierside Terminal Operators, Inc. v. M/V Flo
ridian, D.C.Va., 374 F.Supp. 27, 30. As regards right to 
jury trial, see 28 U.S.C.A. § 1873. See Jones Act; Long
shore and Harbor Workers' Compensation Act. 
Maritus /m:miyt;}s/mrer;}t;}s/. Lat. A husband; a mar
ried man. 
Mark. A character, usually in the form of a cross, made 
as a substitute for his signature by a person who cannot 
write, in executing a conveyance, will or other legal 
document. It is commonly made as follows: A third 
person writes the name of the marksman, leaving a 
blank space between the Christian name and surname; 
in this space the latter traces the mark, or crossed lines, 
and above the mark is written "his" (or "her"), and 
below it, "mark." See Cross. 
The sign, writing, or ticket put upon manufactured 
goods to distinguish them from others, appearing thus in 
the compound, "trade-mark." 
A token, evidence, or proof; as in the phrase "a mark 
of fraud." 
In trademark law, the term "mark" includes any 
trademark, service mark, collective mark, or certifica
tion mark. 15 U.S.C.A. § 11 27. See also Trademark.

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MARK 
A weight used in several parts of Europe, and for 
several commodities, especially gold and silver. 
Monetary unit, e.g. German Deutsche mark. 
The word is sometimes used as another form of "mar
que, " a license of reprisals. 
In early Teutonic and English law, a species of village 
community, being the lowest unit in the political sys
tem; one of the forms of the gens or clan, variously 
known as the "mark," "gemeinde, " "commune, " or "par
ish. " Also the land held in common by such a commu
nity. The union of several such village communities 
and their marks, or common lands, forms the next 
higher political union, the hundred. 
See also Bench mark; Certification mark; Col/ective 
mark. 
Demi-mark. Half a mark; a sum of money which was 
anciently required to be tendered in a writ of right, the 
effect of such tender being to put the demandant, in the 
first instance, upon proof of the seisin as stated in his 
count; that is, to prove that the seisin was in the king's 
reign there stated. 
High and low water-mark. See Water-mark. 
Markdown. Reduction in selling price. 
Marked money. Term used to describe money given by 
undercover agent who buys contraband or gives bribe in 
money, or ransom money given to kidnapper, or money 
given to bank robber, which bears a tell-tale mark for 
use in identifying and connecting the money to the 
perpetrator of the crime. 
Market. Place of commercial activity in which goods, 
commodities, securities, services, etc., are bought and 
sold. Zemel v. Commercial Warehouses, 132 N.J.L. 341, 
40 A.2d 642, 643. The region in which any commodity 
or product can be sold; the geographical or economic 
extent of commercial demand. A public time and ap
pointed place of buying and selling; also purchase and 
sale. It differs from the forum, or market of antiquity, 
which was a public marketplace on one side only, or 
during one part of the day only, the other sides being 
occupied by temples, theaters, courts of justice, and 
other public buildings. 
In a limited sense, "market" is the range of bid and 
asked prices reported by brokers making the market in 
over-the-counter securities. Opper v. Hancock Securi
ties Corp., D.C.N.Y., 250 F.Supp. 668, 675. 
By the term "market" is also understood the demand 
there is for any particular article; as, "the cotton mar
ket is depressed." Is also an abbreviated term for 
"stock" or "commodity" markets. 
See also Common market; Current market value. 
Clerk of the market. See Clerk of the Market. 
Geographic market. In antitrust context, that geograph
ic area in which a product is sold and in which there is 
or is not competition. It generally implies agreement 
allocating different areas to each competitor with the 
understanding that the other competitors will not sell in 
those areas. Timken Roller Bearing Co. v. U. S., 341 
970 
U.S. 593, 71 S.Ct. 971, 95 L.Ed. 11 99. A relevant "geo
graphic market" for purposes of assessing monopoly 
power is the territorial area in which businessmen effec
tively compete. Telex Corp. v. International Business 
Machines Corp., D.C.Okl., 367 F.Supp. 258, 336. Within 
broad geographic market, well-defined submarkets may 
exist which, in themselves, constitute "geographic mar
kets" for antitrust purposes. U. S. Steel Corp. v. F. T. 
C., C.A.Ohio, 426 F.2d 592, 596. See also Product mar
ket; Relevant market, below. 
Listed market securities. The market value of a security 
as reflected by transactions of that security on the floor 
of an exchange. 
Open market. A market wherein supply and demand 
are expressed in terms of a price. 
Product market. In antitrust context, a market in 
which competitors agree among themselves to limit the 
manufacture or sales of products so as to prevent compe
tition among themselves. Hartford Empire Co. v. U. S., 
323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322. 
Public market. A market which is not only open to the 
resort of the general public as purchasers, but also 
available to all who wish to offer their wares for sale, 
stalls, stands, or places being allotted to those who 
apply, to the limits of the capacity of the market, on 
payment of fixed rents or fees. 
Relevant market. In antitrust context, it may refer to 
geographic area in which competitors agree to respect 
the rights of others to sell a product. It may also refer 
to product markets in which competitors agree among 
themselves to limit the manufacture or sales of products 
so as to prevent or limit competition among themselves. 
Hartford Empire Co. v. U. S., 323 U.S. 386, 65 S.Ct. 373, 
89 L.Ed. 322. See also Relevant market. 
Thin market. A market for publicly traded securities 
in which the number of transactions and/or the number 
of securities offered for sale or purchase at any one time 
are relatively few. In a thin market a single substantial 
purchase or sale order may cause a significant price 
movement. 
Marketability. Salability. The probability of selling 
property, goods, securities, services, etc., at a specific 
time, price, and terms. 
Marketable. Salable. Such things as may be sold in 
the market; those for which a buyer may be found; 
merchantable. 
Marketable securities. Stocks and bonds held of other 
companies that can be readily sold on stock exchanges 
or over-the-counter markets and that the company plans 
to sell as cash is needed. Classified as current liquid 
assets and as part of working capital. 
Marketable title. A title which is free from encum
brances and any reasonable doubt as to its validity, and 
such as a reasonably intelligent person, who is well 
informed as to facts and their legal bearings, and ready 
and willing to perform his contract, would be willing to 
accept in exercise of ordinary business prudence. Sin-

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clair v. Weber, 204 Md. 324, 104 A.2d 561, 565. Such a 
title as is free from reasonable doubt in law and in fact; 
not merely a title valid in fact, but one which readily 
can be sold or mortgaged to a reasonably prudent pur
chaser or mortgagee; one acceptable to a reasonable 
purchaser, informed as to the facts and their legal 
meaning, willing to perform his contract, in the exercise 
of that prudence which businessmen usually bring to 
bear on such transactions; one under 'which a purchaser 
may have quiet and peaceful enjoyment of the property; 
one that is free from material defects, or grave doubts, 
and reasonably free from litigation. Myrick v. Austin, 
141 Kan. 778, 44 P.2d 266, 268. 
Marketable title is one which is free from reasonable 
doubt and will not expose party who holds it to hazards 
of litigation. Tri-State Hotel Co. v. Sphinx Investment 
Co., 212 Kan. 234, 510 P.2d 1223, 1230. One that may 
be freely made the subject of resale. Krulee v. F. C. 
Huyck & Sons, 121 Vt. 299, 156 A.2d 74, 77. 
A marketable title to land is such a title as a court, 
when asked to decree specific performance of the con
tract of sale, will compel the vendee to accept as suffi
cient. It is said to be not merely a defensible title, but a 
title which is free from plausible or reasonable objec
tions. 
See also Merchantable title. 
Marketable Title Acts. Many states have adopted Mar
ketable Title Acts the purpose of which is to simplify 
land title transactions through making it possible to 
determine marketability by limited title searches over 
some reasonable period of the immediate past (e.g. 40 
yrs.) and thus avoid the necessity of examining the 
record back into distant time for each new transaction. 
Market geld. The toll of a market. 
Marketing contract. An agreement between a coopera
tive and its members in which the members agree to sell 
their products through the cooperative and the coopera
tive agrees to obtain their price. Hiroshi Kaneko v. 
Jones, 192 Or. 523, 235 P.2d 768. 
Market making. Regarding securities in over the coun
ter trading, the process consisting of bid and ask quota
tions which results in the establishment of a market for 
such securities. Opper v. Hancock Securities Corp., 
D.C.N.Y., 250 F.Supp. 668, 671. 
Market order. An order to buy or sell on a stock or 
commodity exchange at the current (best) price when 
the order reaches the floor of the exchange. Requests 
by customers to purchase or sell securities at the market 
price existing when the order reaches the exchange 
floor. 
Market overt. In English law, an open and public 
market. The market-place or spot of ground set apart 
by custom for the sale of particular goods is, in the 
country, the only market overt; but in London every 
shop in which goods are exposed publicly to sale is 
market overt, for such things only as the owner profess
es to trade in. An expression applied to the open sale of 
goods. 
MARKET VALUE 
Market power. Term for purposes of the Sherman Act, 
is the ability to raise prices significantly above the 
competitive level without losing all of one's business; 
the ability to raise prices above those which would be 
charged in a competitive market. National Bancard 
Corp. (NaBanco) v. VISA U.S.A., Inc., D.C.Fla., 596 
F.Supp. 12 31, 1265. See Market share. 
Market price. The price at which a seller is ready and 
willing to sell and a buyer ready and willing to buy in 
the ordinary course of trade. The price actually given 
in current market dealings; price established by public 
sales or sales in the way of ordinary business. The 
actual price at which given stock or commodity is cur
rently sold, or has recently been sold in open market, 
that is, not at forced sale, but in the usual and ordinary 
course of trade and competition between sellers and 
buyers equally free to bargain, as established by records 
of late sales. In the case of a security, market price is 
usually considered the last reported price at which the 
stock or bond sold. 
Market price is synonymous with market value, and 
means the price actually given in current market deal
ings, or the price at which the supply and demand are 
equal. Public Service Commission of State v. Montana
Dakota Utilities Co., N.D., 100 N.W.2d 140, 146. The 
point of intersection of supply and demand in the mar
ket. See also Market value. 
Market quotations. The latest (most current) prices at 
which securities or commodities have been bought and 
sold on an exchange or other market. Board of Trade of 
Chicago v. L. A. Kinsey Co., C.A.lnd., 130 F. 507, affd 
198 U.S. 236, 25 S.Ct. 637, 49 L.Ed. 103 1. 
Market share. The percentage of a market that is 
controlled by a firm. A 20 percent share of market 
means that the firm has captured 20 percent of the 
actual sales in the market. See Market power. 
Market structure. Refers to the broad organizational 
characteristics of a market. The major characteristics 
are seller concentration, product differentiation, and 
barriers to entry. 
Market value. The price property would command in 
the open market. The highest price a willing buyer 
would pay and a willing seller accept, both being fully 
informed, and the property being exposed for a reason
able period of time. The market value may be different 
from the price a property can actually be sold for at a 
given time (market price). The market value of an 
article or piece of property is the price which it might be 
expected to bring if offered for sale in a fair market; not 
the price which might be obtained on a sale at public 
auction or a sale forced by the necessities of the owner, 
but such a price as would be fixed by negotiation and 
mutual agreement, after ample time to find a purchaser, 
as between a vendor who is willing (but not compelled) 
to sell and a purchaser who desires to buy but is not 
compelled to take the particular article or piece of 
property. U. S. v. Certain Property in Borough of 
Manhattan, City, County and State of New York, C.A. 
N.Y., 403 F.2d 800, 802. See also Actual market value;

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MARKET VALUE 
Cash value; Clear market value; Fair cash market 
value; Fair market value; Market price. 
Marking up. The process wherein a legislative commit
tee goes through a bill section by section, revising its 
language and amending the bill as desired. Extensive 
revision may lead to the introduction of a clean bill 
under a new number. May also refer to procedure by 
which a case is placed on the trial calendar; e.g. "mark
ing up for trial." 
Markon. An amount originally added to cost to obtain 
list price. Usually expressed as a percentage of cost. 
Further increases in list price are called markups; de
creases are called markdowns. See also Markup. 
Marksman. In practice and conveyancing, one who 
makes his mark; a person who cannot write, and only 
makes his mark in executing instruments. 
Markup. An amount originally added to cost. Usually 
expressed as a percentage of selling price. Also refers to 
an increase above an originally-established retail price. 
See Margin; Marking up; Markon. 
Markush doctrine Imark�sh doktr�n/. The doctrine 
permits an applicant for a patent where there is no 
known subgeneric term which would include elements 
which applicant found useful and exclude those which 
are not, to employ a generic term limited to the ele
ments found to be operative and recognizes as unobjec
tionable as to form, claims containing a coined subgener
ic expression. In re Swenson, C.C.P.A., 132 F.2d 336. 
Marque and reprisal, letters of /led�rz �v mark �nd 
r�prayz�l/. These words, "marque" and "reprisal," are 
frequently used as synonymous, but, taken in their strict 
etymological sense, the latter signifies a "taking in re
turn;" the former, the passing the frontiers (marches) in 
order to such taking. Letters of marque and reprisal 
are grantable, by the law of nations, whenever the 
subjects of one state are oppressed and injured by those 
of another, and justice is denied by that state to which 
the oppressor belongs; and the party to whom these 
letters are granted may then seize the bodies or the 
goods of the subjects of the state to which the offender 
belongs, until satisfaction be made, wherever they hap
pen to be found. Reprisals are to be granted only in 
case of a clear and open denial of justice. At the 
present day, in consequence partly of treaties and partly 
of the practice of nations, the making of reprisals is 
confined to the seizure of commercial property on the 
high seas by public cruisers, or by private cruisers 
specially authorized thereto. Article I, Sec. 8, of U.S. 
Const. grants Congress the power to grant Letters of 
Marque and Reprisal. 
Marque, law of 110 �v mark I . A sort of law of reprisal, 
which entitles him who has received any wrong from 
another and cannot get ordinary justice to take the 
shipping or goods of the wrongdoer, where he can find 
them within his own bounds or precincts, in satisfaction 
of the wrong. 
972 
Marquis, or marquess Imarkiy/markw�s/. In English 
law, one of the second order of nobility; next in order to 
a duke. 
Marquisate Imarkw�s�trz�t/. The seigniory of a mar
quis. 
Marriage. Legal union of one man and one woman as 
husband and wife. Singer v. Hara, 11 Wash.App. 247, 
522 P.2d 11 87, 11 93. Marriage, as distinguished from 
the agreement to marry and from the act of becoming 
married, is the legal status, condition, or relation of one 
man and one woman united in law for life, or until 
divorced, for the discharge to each other and the com
munity of the duties legally incumbent on those whose 
association is founded on the distinction of sex. A 
contract, according to the form prescribed by law, by 
which a man and woman capable of entering into such 
contract, mutually engage with each other to live their 
whole lives (or until divorced) together in state of union 
which ought to exist between a husband and wife. The 
word also signifies the act, ceremony, or formal proceed
ing by which persons take each other for husband and 
wife. 
In old English law, marriage is used in the sense of 
"maritagium" (q.v.), or the feudal right enjoyed by the 
lord or guardian in chivalry of disposing of his ward in 
marriage. 
See also Avail of marriage; Banns of matrimony; Com
mon-law marriage; Consensual marriage; Restraint of 
marriage; Voidable marriage; Void marriage. 
Ceremonial marriage. Marriage which follows all the 
statutory requirements of blood tests, license, waiting 
period, and which has been solemnized before an official 
(religious or civil) capable of presiding at the marriage . 
Informal marriage. A marriage in which promises are 
exchanged between the parties without an official eccle
siastical representative present. In most cases, the law 
requires consummation of the marriage to consider such 
valid. See Consensual marriage. 
Jactitation of marriage. See Jactitation. 
Manus marriage. A form of marriage in early Rome; it 
formed a relation called manus (hand) and brought the 
wife into the husband's power, placing her as to legal 
rights in the position of a daughter. 
Marriage in jest. A marriage in jest is subject to annul
ment for lack of requisite consent and intention to 
marry. 
Mixed marriage. A marriage between persons of differ
ent nationalities or religions; or, more particularly, 
between persons of different racial origin; as between a 
white person and a negro or an Indian. See Miscegena
tion. 
Morganatic marriage. The lawful and inseparable con
junction of a man, of noble or illustrious birth, with a 
woman of inferior station, upon condition that neither 
the wife nor her children shall partake of the titles, 
arms, or dignity of the husband, or succeed to his inheri
tance, but be contented with a certain allowed rank

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assigned to them by the morganatic contract. But since 
these restrictions relate only to the rank of the parties 
and succession to property, without affecting the nature 
of a matrimonial engagement, it must be considered as a 
just marriage. The marriage ceremony is regularly 
performed; the union is indissoluble; the children legit
imate. 
Plural marriage. In general, any bigamous or polyga
mous union, but particularly, a second or subsequent 
marriage of a man who already has one wife living 
under system of polygamy. Such marriages are prohib
ited. 
Proxy marriage. Marriage contracted or celebrated by 
one or more agents rather than by the parties them
selves. 
Putative marriage. One contracted in good faith and in 
ignorance (on one or both sides) of some existing impedi
ment on the part of at least one of the contracting 
parties. U. S. Fidelity & Guaranty Co. v. Henderson, 
Tex.Civ.App., 53 S.W.2d 811. Such marriages are recog
nized in very few jurisdictions. 
Marriage Act, Royal. An English act of 12 Geo. III, c. 1 
(1772), by which members of the royal family are forbid
den to marry without the king's (or queen's) consent, or 
except on certain onerous conditions. 
Marriage articles. Articles of agreement between par
ties contemplating marriage, intended as preliminary to 
a formal marriage settlement, to be drawn after mar
riage. 
Marriage broker. One who for a consideration brings a 
woman and man together in marriage. Such activity is 
void and illegal as against public policy. 
Marriage ceremony. The form, religious or civil, for 
the solemnization of a marriage. 
Marriage certificate. An instrument which certifies a 
marriage, and is executed by the person officiating at 
the marriage; it is not intended to be signed by the 
parties, but is evidence of the marriage. 
Marriage license. A license or permission granted by 
public authority to persons who intend to intermarry, 
usually addressed to the minister or magistrate who is 
to perform the ceremony, or, in general terms, to any 
one authorized to solemnize marriages. By statute in 
most jurisdictions, it is made an essential prerequisite to 
the lawful solemnization of the marriage. 
Marriage-notice book. A book kept, in England, by the 
registrar, in which applications for and issue of regis
trar's licenses to marry are recorded. 
Marriage per verba de praesenti /mrer�j p�r v�rb� diy 
pr�zentay /. To constitute such a marriage, there must 
be an agreement to become husband and wife immedi
ately from the time when the mutual consent is given. 
Pitney v. Pitney, 151 Kan. 848, 101 P.2d 933, 935. 
Marriage portion. Dowry; a sum of money or other 
property which is given to or settled on a woman on her 
marriage. 
MARSHALLING ASSETS 
Marriage promise. Betrothal; engagement to intermar
ry with another. 
Marriage records. Those documents kept by a state, 
city or town official which are permanent records of 
marriages and which include the names of the spouses, 
the maiden name of the wife, their addresses and the 
date of the marriage. From these documents certifi
cates of marriages are prepared. 
Marriage settlement. An agreement in contemplation 
of marriage in which each party agrees to release or 
modify property rights which would otherwise arise 
from the marriage. A written agreement in the nature 
of a conveyance, called a "settlement," which is made in 
contemplation of a proposed marriage and in considera
tion thereof, either by the parties about to marry, or one 
of them, or by a parent or relation on their behalf, by 
which the title to certain property is settled, i.e., fixed or 
limited to a prescribed course of succession; the object 
being, usually, to provide for the wife and children. 
Thus, the estate might be limited to the husband and 
issue, or to the wife and issue, or to husband and wife 
for their joint lives, remainder to the survivor for life, 
remainder over to the issue, or otherwise. Such settle
ments may also be made after marriage, in which case 
they are called "postnuptial." See also Antenuptial 
agreement; Marital agreements; Palimony; Post-nuptial 
agreement. 
Married woman. A woman who has a husband living 
and not divorced; a feme covert. 
Marshal. The President is required to appoint a U.S. 
Marshal to each judicial district. It is the responsibility 
of U.S. marshals to execute all lawful writs, process and 
orders issued under authority of the United States. In 
executing the laws of the United States within a state, 
the marshal may exercise the same powers which a 
sheriff of the State may exercise in executing the laws 
thereof. 28 U.S.C.A. §§ 56 1, 569, 570. 
Also, in some of the states, this is the name of a law 
officer in certain cities having powers and duties corre
sponding generally to those of a constable or sheriff. 
Administrative head of city police or fire department. 
See also Provost-Marshal. 
In old English law, the title borne by several officers 
of state and of the law, of whom the most important 
were the following: (1) The earl-marshal, who presided 
in the court of chivalry; (2) the marshal of the king's 
house, or knight-marshal, whose special authority was 
in the king's palace, to hear causes between members of 
the household, and punish faults committed within the 
verge; (3) the marshal of the king's bench prison, who 
had the custody of that jail; (4) the marshal of the 
exchequer, who had the custody of the king's debtors; 
(5) the marshal of the judge of assize, whose duty was to 
swear in the grand jury. 
Marshalling assets. Also known as marshalling assets 
and securities, marshalling of liens or marshalling of 
remedies, it is an equitable doctrine requiring a senior 
creditor, having two funds to satisfy his debt, to resort 
first to the one fund which is not subject to the demand

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MARSHALLING ASSETS 
of a junior creditor of the common debtor, to avoid the 
inequity which would result from an election of the 
senior creditor to satisfy its demand out of the only fund 
available to the junior creditor, thereby excluding the 
junior creditor from any satisfaction. Matter of Central 
R. Co. of New Jersey, D.C.N.J., 45 B.R. 101 1, 1019. 
The arrangement or ranking of assets in a certain 
order towards the payment of debts. 
Under the common law, a doctrine whereby encum
bered lands, which are sold to different persons at differ
ent times by conveyances the grantees and the person 
holding the lien, are chargeable in equity with the 
encumbrance in the inverse order of their alienation. 
Ingersoll v. Somers Land Co., 82 N.J.Eq. 476, 89 A. 288. 
Marshal of the queen's bench. An officer who had the 
custody of the queen's bench prison. The St. 5 & 6 Vict., 
c. 22, abolished this office, and substituted an officer 
called "keeper of the queen's prison." 
Marshalsea Imarsh;}lsiy/. In English law, a prison be
longing to the king's bench. It was subsequently consol
idated with others, under the name of the "King's Pris
on." 
Marshalsea, court of Ikort ;}v marsh;}lsiy I. In English 
law, the court or seat of the marshal. A court originally 
held before the steward and marshal of the king's house, 
instituted to administer justice between the king's do
mestic servants. It had jurisdiction of all trespasses 
committed within the verge of the king's court, where 
one of the parties was of the royal household; and of all 
debts and contracts, when both parties were of that 
establishment. It was abolished by 12 & 13 Vict., c. 101, 
§ 13. 
Mart. A place of public traffic or sale. See also Market. 
Marte suo decurrere Imartiy s(y)uwow d;}k;)hr;}riy/. 
Lat. To run by its own force. A term applied in the 
civil law to a suit when it ran its course to the end 
without any impediment. 
Martial law Imarsh;}116l. Exists when military authori
ties carry on government or exercise various degrees of 
control over civilians or civilian authorities in domestic 
territory. Ochikubo v. Bonesteel, D.C.Cal., 60 F.Supp. 
91 6, 928, 929, 930. Such may exist either in time of war 
or when civil authority has ceased to function or has 
become ineffective. A system of law, obtaining only in 
time of actual war and growing out of the exigencies 
thereof, arbitrary in its character, and depending only 
on the will of the commander of an army, which is 
established and administered in a place or district of 
hostile territory held in belligerent possession, or, some
times, in places occupied or pervaded by insurgents or 
mobs, and which suspends all existing civil laws, as well 
as the civil authority and the ordinary administration of 
justice. See also Military government; Military law. 
Mary Carter agreement. The term "Mary Carter 
Agreement" arises from the agreement popularized by 
the case of Booth v. Mary Carter Paint Co., Fla.App. 
1967, 202 So.2d 8, and now is used rather generally to 
apply to any agreement between the plaintiff and some, 
974 
but less than all, defendants whereby the parties place 
limitations on the financial responsibility of the agree
ing def endants, the amount of which is variable and 
usually in some inverse ratio to the amount of recovery 
which the plaintiff is able to make against the nonagree
ing defendant or defendants. Such agreements are held 
to be void as against public policy in certain states, 
while in others are permissible if disclosed to the jury. 
Mashgiach Imashgiy;}k/. A qualified supervisor desig
nated by rabbinical authority to supervise the receipt 
and handling of kosher meat. People on Complaint of 
Waller v. Jacob Branfman & Son, 147 Misc. 290, 263 
N.Y.S. 629. 
Masochism Imres;}kiz;}m/. [From Leopold von Sacher
Masoch, a nineteenth-century Austrian novelist and his
torian.] A form of perversion in which sexual pleasure 
is heightened when one is beaten and maltreated at the 
hands of the other party; the opposite of sadism. Sexu
al perversion, in which a member of one sex takes 
delight in being dominated, even to the extent of vio
lence or cruelty, by one of the other sex. 
Mason and Dixon Line. The boundary line between 
Pennsylvania on the north and Maryland on the south, 
celebrated before the extinction of slavery as the line of 
demarcation between the slave and the free states. It 
was run by Charles Mason and Jeremiah Dixon, com
missioners in a dispute between the Penn Proprietors 
and Lord Baltimore. The line was carried 244 miles 
from the Delaware river where it was stopped by Indi
ans. A resurvey was made in 1849, and in 1900 a new 
survey was authorized by the two states. 
Massa Imres;}/. In the civil law, a mass; an unwrought 
substance, such as gold or silver, before it is wrought 
into cups or other articles. 
Massachism. See Masochism. 
Massachusetts ballot. The office-block type of Austra
lian ballot in which, under each of fice, the names of 
candidates, with party designations, are printed in al
phabetical order. 
Massachusetts rule. As regards sending out checks 
through banks for collection, the "Massachusetts rule" 
is that each bank that receives the item acts as an agent 
for the depositor; but in some other states, the "New 
York rule" prevails, under which only the bank first 
receiving the item is responsible to, or is the agent of, 
the depositor, the other banks being the agent of the 
bank, in the process of the collection. 
Massachusetts trust. A business organization wherein 
property is conveyed to trustees and managed for benefit 
of holders of certificates like corporate stock certificates. 
A "Massachusetts business trust" is an unincorporated 
association organized under Massachusetts law for pur
pose of investing in real estate in much the same man
ner as a mutual fund invests in corporate securities. 
Kusner v. First Pa. Corp., D.C.Pa., 395 F.Supp. 276, 28 1. 
See also Common-law trust; Real estate investment trust; 
Trust estates as business companies.

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975 
Masses. Religious ceremonials or observances of the 
Roman Catholic Church. 
Master. A principal who employs another to perform 
service in his affairs and who controls or has right to 
control physical conduct of other in performance of the 
service. Restatement, Second, Agency, § 2. One who 
stands to another in such a relation that he not only 
controls the results of the work of that other but also 
may direct the manner in which such work shall be 
done. Matonti v. Research-Cottrell, Inc., D.C.Pa., 202 
F.Supp. 527, 532. 
One having authority; one who rules, directs, in
structs, or superintends; a head or chief; an instructor; 
an employer. See various "Master" titles below. 
One who has reached the summit of his trade and who 
has the right to hire apprentices and journeymen. 
Fed.R. Civil P. 53, and analogous state rules, provide 
for the appointment by the court of a master to assist it 
in specific judicial duties as may arise in a case. The 
master's powers and duties depend upon the terms of 
the order of reference and the controlling court rule, 
and may include taking of testimony, discovery of evi
dence and other acts or measures necessary for the 
performance of his duties specified in the order of refer
ence. The master is required to prepare a report of his 
proceedings for the court. In the federal courts the 
appointment of a master is the "exception rather than 
the rule", while under many state rules, the court has 
more liberal powers to appoint such. See also Refer
ence. 
Special master. A master appointed to act as the repre
sentative of the court in some particular act or transac
tion, as, to make a sale of property under a decree. 
Pewabic Min. Co. v. Mason, 145 V.S. 349, 12 S.Ct. 887, 
36 L.Ed. 732. A federal judge may appoint a V.S. 
magistrate to serve as a special master. 28 V.S.C.A. 
§ 636. 
Master agreement. The omnibus labor agreement 
reached between a union and the leaders of the industry 
or a trade association. It becomes the pattern for labor 
agreements between the union and individual employ
ers. 
Master and servant. The relation of master and serv
ant exists where one person, for pay or other valuable 
consideration, enters into the service of another and 
devotes to him his personal labor for an agreed period. 
The relation exists where the employer has the right to 
select the employee, the power to remove and discharge 
him and the right to direct both what work shall be 
done and the manner in which it shall be done. Maton
ti v. Research-Cottrell, Inc., D.C.Pa., 202 F.Supp. 527, 
532. Restatement, Second, Agency § 2. Such term has 
generally been replaced by "employer and employee". 
Compare Agency; Independent contractor. 
Master at common law. The title of officers of the 
English superior courts of common law appointed to 
record the proceedings of the court to which they belong; 
to superintend the issue of writs and the formal proceed
ings in an action; to receive and account for the fees 
MASTER OF THE ORDNANCE 
charged on legal proceedings, and moneys paid into 
court. 
Master deed or lease. Conveyancing document used by 
owners or lessees of condominiums. 
Master in chancery. An officer of a court of chancery 
who acts as an assistant to the judge or chancellor. His 
duties are to inquire into such matters as may be 
referred to him by the court, examine causes, take 
testimony, take accounts, compute damages, etc., report
ing his findings to the court in such shape that a decree 
may be made; also to take oaths and affidavits and 
acknowledgments of deeds. In modern practice, many 
of the functions of a master are performed by clerks, 
commissioners, auditors, and referees, and in those 
states that have merged law and equity courts in adopt
ing Rules of Civil Procedure the office has been super
seded. See Master. 
Master in lunacy. In old English law, the masters in 
lunacy were judicial officers appointed by the lord chan
cellor for the purpose of conducting inquiries into the 
state of mind of persons alleged to have been lunatics. 
Such inquiries usually took place before a jury. 
Master lease. See Lease; Sublease. 
Master of a ship. In maritime law, the commander of a 
merchant vessel, who has the chief charge of her govern
ment and navigation and the command of the crew, as 
well as the general care and control of the vessel and 
cargo, as the representative and confidential agent of 
the owner. He is commonly called the "capta in." 
Master of the Crown Office. In England, the Queen's 
coroner and attorney in the criminal department of the 
court of Queen's bench, who prosecutes at the complaint 
or relation of some private person or common informer, 
the crown being the nominal prosecutor. He is an 
officer of the Supreme Court. 
Master of the Faculties. In English law, an officer 
under the archbishop, who grants licenses and dispensa
tions, etc. 
Master of the Horse. In English law, the third great 
officer of the royal household, being next to the lord 
steward and lord chamberlain. He has the privilege of 
making use of any horses, footmen, or pages belonging 
to the royal stables. 
Master of the Mint. In English law, an officer who 
received bullion for coinage, and paid for it, and superin
tended everything belonging to the mint. He was usual
ly called the "warden of the mint." It was provided by 
St. 33 Vict., c. 10, § 14, that the chancellor of the 
exchequer for the time being was to be the master of the 
mint. Such office was repealed by the Coinage Act of 
19 71. 
Master of the Ordnance. In English law, a great offi
cer, to whose care all the royal ordnance and artillery 
were committed. In modern times called Master-Gener
al of the Ordinance, a post held by a senior officer in the 
Ministry of Defense.

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MASTER OF THE ROLLS 
Master of the Rolls. In English law, an assistant judge 
of the court of chancery, who held a separate court 
ranking next to that of the lord chancellor, and had the 
keeping of the rolls and grants which passed the great 
seal, and the records of the chancery. He was originally 
appointed only for the superintendence of the writs and 
records appertaining to the common-law department of 
the court, and is still properly the chief of the masters in 
chancery. Under the act constituting the Supreme 
Court of Judicature, the master of the rolls became a 
judge of the high court of justice and ex officio a mem
ber of the court of appeal. The same act, however, 
provided for the abolition of this office, under certain 
conditions, when the next vacancy occurs. Also sits as 
an ex officio judge of the Court of Appeal (Supreme 
Court Act, 19 81, § 2(2)), and presides over the Civil 
Division of the Court of Appeal (Supreme Court Act, 
19 81, § 10). 
Master plan. Term used in land use control law, zoning 
and urban redevelopment to describe the omnibus plan 
of a city or town for housing, industry and recreational 
facilities and their impact on environmental factors. 
See also Planned unit development. 
Master policy. An insurance policy which covers a 
group of persons as in health or life insurance written as 
group insurance. Generally, there is only one master 
policy and the participants have only certificates evi
dencing their participation. 
Masters of the supreme court. In English law, officials 
deriving their title from Jud. (Officers') Act 1879, and 
being, or filling the places of, the sixteen masters of the 
common-law courts, the queen's coroner and attorney, 
the master of the crown office, the two record and writ 
clerks, and--the three associates. 
Master's report. The formal report or statement made 
by a master in chancery of his decision on any question 
referred to him, or of any facts or action he has been 
directed to ascertain or take. 
The document filed with the court after a master has 
heard the evidence and made his findings. The report 
should contain his findings and conclusions of law where 
necessary. Fed.R.Civil P. 53(e). 
Master-servant rule. Under this rule, master (employ
er) is liable for conduct of servant (employee) which 
occurs while servant is acting within scope of his em
ployment or within scope of his authority. See also 
Fellow servant; Respondeat superior; Servant. 
Mast-selling. In old English law, the practice of selling 
the goods of dead seamen at the mast. 
Mate. A spouse. The officer second in command on a 
merchaOnt vessel. In Navy, petty officer who is assistant 
to warranty officer. 
Matelotage Imretlowtazh/. In French law, the hire of a 
ship or boat. 
Seamanship; seaman's wages, pay. 
976 
Mater-familias Imeyt�r f�mi1(i)y�s/. Lat. In civil law, 
the mother or mistress of a family. A chaste woman, 
married or single. 
Materia Im�tir(i)y�/. Lat. In Civil law, materials; as 
distinguished from species, or the form given by labor 
and skill. 
In English law, matter; substance; subject-matter. 3 
Bl.Comm. 322. 
Material. Important; more or less necessary; having 
influence or effect; going to the merits; having to do 
with matter, as distinguished from form. Representa
tion relating to matter which is so substantial and 
important as to influence party to whom made is "mate
rial." See Material fact; Relevant. 
Material allegation. An allegation is said to be materi
al when it forms a substantive part of the case presented 
by the pleading. A material allegation in a pleading is 
one essential to the claim or defense, and which could 
not be stricken from the pleading without leaving it 
insufficient. 
Material alteration. A material alteration in any writ
ten instrument is one which changes its tenor, or its 
legal meaning and effect; one which causes it to speak a 
language different in effect from that which it originally 
spoke. A material alteration of a deed is one which 
effects a change in its legal effect. Boys v. Long, Okl., 
268 P.2d 890, 893. 
Any alteration of an instrument is material which 
changes the contract of any party thereto in any respect, 
including any such change in: (a) the number or rela
tions of the parties; or (b) an incomplete instrument, by 
completing it otherwise than as authorized; or (c) the 
writing as signed, by adding to it or by removing any 
part of it. U.C.C. § 3-407(1). The term is defined 
similarly when applied to other kinds of commercial 
paper. 
Material breach. See Breach of contract. 
Material evidence. That quality of evidence which 
tends to influence the trier of fact because of its logical 
connection with the issue. Evidence which has an effec
tive influence or bearing on question in issue. Barr v. 
Dolphin Holding Corp., Sup., 141 N.Y.S.2d 906, 908. 
"Materiality" of evidence refers to pertinency of the 
offered evidence to the issue in dispute. Vine Street 
Corp. v. City of Council Bluffs, Iowa, 220 N.W.2d 860, 
863. Evidence which is material to question in contro
versy, and which must necessarily enter into the consid
eration of the controversy, and which by itself or in 
connection with other evidence is determinative of the 
case. Camurati v. Sutton, 48 Tenn.App. 54, 342 S.W.2d 
732, 739. 
To establish Brady violation requiring reversal of a 
conviction, defendant must show that prosecution has 
suppressed evidence, that such evidence was favorable to 
defendant or was exculpatory, and that evidence was 
material; evidence is "material" if there is reasonable 
probability that, but for failure to produce such evi
dence, outcome of case would have been different. U.S.

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977 
v. Barragan, C.A.Fla., 793 F.2d 1255, 1259; Brady v. 
Maryland, 373 U.S. 83, 83 S.Ct. 119 4, 10 L.Ed.2d 215. 
See also Evidence; Relevancy; Relevant evidence. 
Material fact. Contracts. One which constitutes sub
stantially the consideration of the contract, or without 
which it would not have been made. See also Reliance. 
Insurance. A fact which, if communicated to the agent 
or insurer, would induce him either to decline the insur
ance altogether, or not accept it unless a higher premi
um is paid. One which necessarily has some bearing on 
the subject-matter. A fact which increases the risk, or 
which, if disclosed, would have been a fair reason for 
demanding a higher premium. Any fact the knowledge 
or ignorance of which would naturally influence the 
insurer in making or refusing the contract, or in esti
mating the degree and character of the risk, or in fixing 
the rate. 
Pleading and practice. One which is essential to the 
case, def ense, application, etc., and without which it 
could not be supported. One which tends to establish 
any of issues raised. The "material facts" of an issue of 
fact are such as are necessary to determine the issue. 
Material fact is one upon which outcome of litigation 
depends. Amant v. Pacific Power & Light Co., 10 Wash. 
App. 785, 520 P.2d 481, 484. See also Material allegation. 
Securities. To be a "material" fact within the Securities 
Act of 1933, it must concern information about which an 
average prudent investor ought reasonably be informed 
before purchasing a security. Gridley v. Sayre & Fisher 
Co., D.C.S.C., 409 F.Supp. 1266, 1270. Within purview of 
Securities Act provision rendering it unlawful for any 
person in connection with offer, sale or purchase of any 
security, directly or indirectly, to make any untrue 
statement of material fact, or fail to disclose a material 
fact, is one which a reasonable person would attach 
importance to in determining his or her choice of action 
in the transaction. Or, stated alternatively, a fact is 
deemed "material" if its disclosure would have been 
viewed by a reasonable investor as having significantly 
altered the "total mix" of information made available. 
Securities and Exchange Commission v. Paro, D.C.N.Y., 
468 F.Supp. 635, 646. An omitted fact is material if 
there is a substantial likelihood that a reasonable share
holder would consider it important in deciding how to 
vote. TSC Industries, Inc. v. Northway Inc., 426 U.S. 
438, 96 S.Ct. 2126, 48 L.Ed.2d 757. See also Reliance; 
Rule 10 b-5. 
Summary judgment. In determining what constitutes a 
genuine issue as to any material fact for purposes of 
summary judgment, an issue is "material" if the facts 
alleged are such as to constitute a legal defense or are of 
such nature as to affect the result of the action. Austin 
v. Wilder, 26 N.C.App. 229, 215 S.E.2d 794, 796. See 
Fed.R. Civil P. 56(c). 
A fact is "material" and precludes grant of summary 
judgment if proof of that fact would have effect of 
establishing or refuting one of essential elements of a 
cause of action or defense asserted by the parties, and 
would necessarily affect application of appropriate prin-
MATIMA 
ciple of law to the rights and obligations of the parties. 
Johnson v. Soulis, Wyo., 542 P.2d 867, 872. 
Materialman. A person who has furnished materials or 
supplies used in the construction or repair of a building, 
structure, etc. 
Materialman's lien. By statute in most states, a person 
who furnishes material for the construction, improve
ment or alteration of a building or other structure has a 
priority for payment of his claim based on his lien as a 
supplier of such materials. See also Mechanic's lien. 
Material representation or misrepresentation. A 
misrepresentation is "material" if it relates to a matter 
upon which plaintiff could be expected to rely in deter
mining to engage in the conduct in question. Barring
ton Press, Inc. v. Morey, C.A.Ill., 752 F.2d 307, 310 . .In 
law of deceit, a statement or undertaking of sufficient 
substance and importance as to be the foundation of an 
action if such representation is false. See also Material 
fact; Representation. 
Material witness. A person who can give testimony 
relating to a particular matter no one else, or at least 
very few, can give. In an important criminal case, a 
material witness may sometimes be held by the govern
ment against his or her will. He may be the victim or 
an eye witness. See also Witness. 
Maternal. That which belongs to, or comes from, the 
mother; as maternal authority, maternal relation, ma
ternal estate, maternal line. 
Maternal line. A line of descent or relationship be
tween two persons which is traced through the mother 
of the younger. 
Maternal property. That which comes from the mother 
of the party, and other ascendants of the maternal stock. 
Materna maternis /m�t�rn� m�t�rn�s/. Lat. A maxim 
of the French law, signifying that property of a decedent 
acquired by him through his mother descends to the 
relations on the mother's side. 
Maternity. The character, relation, state, or condition 
of a mother. 
Matertera /m�t�rt�r�/. Lat. In civil law, a maternal 
aunt; a mother's sister. 
Matertera magna /m�t�rt�r� mregn�/. A great aunt; a 
grandmother's sister (avire soror). 
Matertera major /m�t�rt�r� meyj�r/. A greater aunt; a 
great- grandmother's sister (proavire soror); a father's or 
mother's great-aunt (patris vel matris matertera magna). 
Matertera maxima /m�t�rt�r� mreks�m�/. A greatest 
aunt; a great-great-g randmother's sister (abavire soror); 
a father's or mother's greater aunt (patris vel matris 
matertera major). 
Mathematical evidence. Demonstrative evidence; such 
as establishes its conclusions with absolute necessity and 
certainty. It is used in contradistinction to moral evi
dence. 
Matima. A godmother.

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MATRICIDE 
Matricide /mretr�sayd/. The murder of a mother; or 
one who has slain his mother. 
Matricula /m�triky�l�/. In civil and old English law, a 
register of the admission of officers and persons entered 
into any body or society, whereof a list was made. 
Hence those who are admitted to a college or university 
are said to be "matriculated ." Also a kind of alms
house, which had revenues appropriated to it, and was 
usually built near the church, whence the name was 
given to the church itself. 
Matriculate /m�triky�leyt/. To enroll; to enter in a 
register; specifically, to enter or admit to membership 
in a body or society, particularly in a college or universi
ty, by enrolling the name in a register; to go through 
the process of admission to membership, as by examina
tion and enrollment, in a society or college. 
Matrimonia debent esse libera /m,etr�m6wn(i)y� 
deb�nt esiy lib�r�/. Marriages ought to be free. A 
maxim of the civil law. 
Matrimonial. Of or pertaining to matrimony or the 
estate of marriage. 
Matrimonial action. Term that includes actions for a 
separation, for an annulment or dissolution of a mar
riage, for a divorce, for a declaration of the nUllity of a 
void marriage, for a declaration of the validity or nullity 
of a foreign judgment of divorce and for a declaration of 
the validity or nullity of a marriage. See e.g. New York 
C.P.L.R. § 105. See also Annul ment; Custody; Divorce; 
Equitable distribution; Separation of spouses. 
Matrimonial cohabitation. The living together of a 
man and woman ostensibly as husband and wife. Also 
the living together of those who are legally husband and 
wife, the term carrying with it, in this sense, an implica
tion of mutual rights and duties as to sharing the same 
habitation. 
Matrimonial domicile. Place where parties live togeth
er as husband and wife either actually or constructively. 
Matrimonial res /m,etr�m6wn(i)y�1 riyz/. The marriage 
state. Usen v. Usen, 136 Me. 480, 13 A.2d 738, 749. 
Matrimonium /m,etr�m6wn(i)y�m/. Lat. In Roman 
law, a legal marriage, contracted in strict accordance 
with the forms of the older Roman law, i.e., either with 
the farreum, the coemptio, or by usus. This was allowed 
only to Roman citizens and to those neighboring peoples 
to whom the right of connubium had been conceded. 
The effect of such a marriage was to bring the wife into 
the manus, or marital power, of the husband, and to 
create the patria potestas over the children. 
Matrimonium subsequens tollit peccatum prrecedens 
/mretr�m6wn(i)y�m s�bs�kw�nz t61�t p�keyt�m 
pr�siydEmz/. Subsequent marriage cures preceding 
criminality. 
Matrimony. Marriage (q.v,), in the sense of the relation 
or status, not of the ceremony. 
978 
Matrix /meytr�ks/. In civil law, the protocol or first 
draft of a legal instrument, from which all copies must 
be taken. 
Matrix ecclesia /meytr�ks �kliyziy�/. Lat. A mother 
church. This term was anciently applied to a cathedral, 
in relation to the other churches in the same see, or to a 
parochial church, in relatiqn to the chapels or minor 
churches attached to it or depending on it. 
Matron. A married woman; an elderly woman. The 
female superintendent of an establishment or institu
tion, such as a hospital, an orphan asylum, etc., is often 
so called. 
Matrons, jury of. Jury impaneled to determine if a 
woman condemned to death is pregnant. In common
law practice, a jury of twelve matrons or discreet wom
en, impaneled upon a writ de ventre inspiciendo, or 
where a female prisoner, being under sentence of death, 
pleaded her pregnancy as a ground for staying execu
tion. In the latter case, such jury inquired into the 
truth of the plea. 
Matter. Substantial facts forming basis of claim or de
fense; facts material to issue; substance as distin
guished from form; transaction, event, occurrence; sub
ject-matter of controversy. See Issue; Material fact; Mat
ter in issue; Subject-matter. 
Matter in controversy or in dispute. Subject of litiga
tion; matter on which action is brought and issue is 
joined and in relation to which, if issue be one of fact, 
testimony is taken. Golden v. Sixth Judicial Dist. Ct. in 
and for Pershing County, 57 Nev. 11 4, 58 P.2d 1042, 
1044. Rights which plaintiffs assert and seek to have 
protected and enforced. Gavica v. Donaugh, C.C.A.Or., 
93 F.2d 173, 175. See also Cause of action; Issue; Matter 
in issue; Subject-matter. 
Matter in deed. In English law, such matter as may be 
proved or established by a deed or specialty. Matter of 
fact, in contradistinction to matter of law. See also 
Matter of record. 
Matter in issue. That matter on which plaintiff pro
ceeds by his action, and which defendant controverts by 
his pleadings, MacKenzie v. Union Guardian Trust Co., 
262 Mich. 563, 247 N.W. 914; not including facts offered 
in evidence to establish the matters in issue. That 
ultimate fact or state of facts in dispute upon which the 
verdict or finding is predicated. See also Matter in 
controversy or in dispute. 
Matter in ley ne serra mise in boutche del jurors 
/mret�r in ley n� s�ra miyz in bush del jur�rz/. Matter 
of law shall not be put into the mouth of the jurors. 
Matter in pais /mret�r in pey/. Matter of fact that is 
not in writing; thus distinguished from matter in deed 
and matter of record; matter that must be proved by 
parol evidence. 
Matter of course. Anything done or taken in the course 
of routine or usual procedure, which is permissible and 
valid without being specially applied for and allowed.

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979 
Matter of fact. That which is to be ascertained by the 
senses, or by the testimony of witnesses describing what 
they have perceived. Distinguished from matter of law 
and matter of opinion. See also Demonstrative evidence; 
Fact. 
Matter of form. See Form. 
Matter of law. Whatever is to be ascertained or decided 
by the application of statutory rules or the principles 
and determinations of the law, as distinguished from the 
investigation of particular facts. 
Matter of record. Any judicial matter or proceeding 
entered on the records of a court, and to be proved by 
the production of such record. It differs from matter in 
deed, which consists of facts which may be proved by 
specialty. 
Matter of record, estoppel by. See Record, estoppel by. 
Matter of substance. That which goes to the merits. 
The opposite of matter of form. 
Matters of subsistence for man. This phrase compre
hends all articles or things, whether animal or vegeta
ble, living or dead, which are used for food, and whether 
they are consumed in the form in which they are bought 
from the producer or are only consumed after undergo
ing a process of preparation, which is greater or less, 
according to the character of the article. 
Matured claim. Claim which is unconditionally due 
and owing. See Liquidated claim; Ripeness doctrine. 
Maturity date. The date on which the principal 
amount of a note, draft, acceptance, bond, or other debt 
instrument becomes due and payable. 
Maturity value. The amount which is due and payable 
on the maturity date of an obligation. 
Maugre /mog';Jr/ . L. Fr. In spite of; against the will of. 
Maxim /mreks';Jm/. Maxims are but attempted general 
statements of rules of law and are law only to extent of 
application in adjudicated cases. Swetland v. Curtiss 
Airports Corporation, D.C.Ohio, 41 F.2d 929, 936. An 
established principle or proposition. A principle of law 
universally admitted as being a correct statement of the 
law, or as agreeable to reason. Principles invoked in 
equity jurisdiction; e.g. "equity treats as done what 
ought to be done." 
The various maxims of law appear in alphabetical 
order throughout this dictionary. 
Maxime paci sunt contraria vis et injuria /mreks';Jmiy 
peysay s�nt k';Jntreriy';J vis et ';Jnjuriy';J/. The greatest 
enemies to peace are force and wrong. 
Maximum. The highest or greatest amount, quality, 
value, or degree. 
Maximus erroris populus magister /mreks';Jm';Js ';Jror';Js 
popY';Jl';Js m';Jjist';Jr / . The people is the greatest master of 
error. 
May. An auxiliary verb qualifying the meaning of an
other verb by expressing ability, competency, liberty, 
permission, possibility, probability or contingency. U. S. 
MAYOR'S COURT 
v. Lexington Mill & E. Co., 232 U.S. 399, 34 S.Ct. 337, 
340, 58 L.Ed. 658. Word "may" usually is employed to 
imply permissive, optional or discretional, and not man
datory action or conduct. Shea v. Shea, Okl., 537 P.2d 
417, 418. Regardless of the instrument, however, 
whether constitution, statute, deed, contract or whatev
er, courts not infrequently construe "may" as "shall" or 
"must" to the end that justice may not be the slave of 
grammar. However, as a general rule, the word "may" 
will not be treated as a word of command unless there is 
something in context or subject matter of act to indicate 
that it was used in such sense. Bloom v. Texas State 
Bd. of Examiners of Psychologists, Tex.Civ.App., 475 
S.W.2d 374, 377. In construction of statutes and pre
sumably also in construction of federal rules word 
"may" as opposed to "shall" is indicative of discretion or 
choice between two or more alternatives, but context in 
which word appears must be controlling factor. U. S. v. 
Cook, C.A.Ill., 432 F.2d 1093, 1098. 
Mayhem /mey(h)';Jm/. Mayhem at common law required 
'a type of injury which permanently rendered the victim 
less able to fight offensively or defensively; it might be 
accomplished either by the removal of (dismemberment), 
or by the disablement of, some bodily member useful in 
fighting. Today, by statute, permanent disfigurement 
has been added; and as to dismemberment and disable
ment, there is no longer a requirement that the member 
have military significance. In many states the crime of 
mayhem is treated as aggravated assault. See also 
Maim. 
Mayn /meyn/. L. Fr. A hand; handwriting. 
May not. A phrase used to indicate that a person is not 
permitted to do or to perform some act, e.g. a person 
may not be allowed to sit for the bar examination in 
certain states without specific academic credits. "May 
not" speaks to permission, whereas "cannot" generally 
deals with ability. 
Maynover /meynowv';Jr/m';Jnuwv';Jr/. L. Fr. A work of 
the hand; a thing produced by manual labor. 
Mayor. A governmental figure who is generally the 
principal administrative officer of a city or other munici
pal area. The position of mayor varies from city to city. 
In some cities the mayor is essentially a ceremonial 
figure, while in others he is a ma jor executive official. 
In some instances he is popularly elected and in others, 
such as in the commission plan, he is selected from 
within the administrative council to serve as a presiding 
officer and ceremonial figure. Duties of mayor are 
usually prescribed by statute or municipal charter. 
Mayoralty /meY(';J)r';Jltiy/. The office or dignity of a 
mayor. 
Mayorazgo /mayorasgow/. In Spanish law, the right to 
the enjoyment of certain aggregate property, left with 
the condition thereon imposed that they are to pass in 
their integrity, perpetually, successively to the eldest 
son. 
Mayor's court. A court established in some cities, in 
which the mayor sits with the powers of a police judge

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MAYOR'S COURT 
or committing magistrate in respect to offenses commit
ted within the city (e.g. traffic or ordinance violations) 
and sometimes with civil jurisdiction in small causes, or 
other special statutory powers. 
McCarran Act. A federal statute which permits a state 
to regulate and to tax foreign insurance companies 
which do business within the state. 15 U.S.C.A. § 1011 
et seq. See also Internal security acts. 
McNabb-Mallory Rule. The rule which requires that a 
suspect be promptly brought before a magistrate or else 
incriminating statements made by him during the ' il
legal detention will be suppressed. McNabb v. U. S., 
318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Mallory v. 
U. S., 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. 
"McNabb Rule" is that there must be reasonable 
promptness in taking prisoner before committing magis
trate, or confession obtained during period between ar
rest and commitment is inadmissible in prosecution of 
party arrested, and that rule applies to voluntary as 
well as involuntary confessions. Muldrow v. U. S., C.A. 
Cal., 281 F.2d 903, 906. See also Fed.R.Crim.P. 5(a); 18 
U.S.C.A. § 3501. See also Confession. 
McNaghten Rule. See M' Naghten Rule. 
M.D. An abbreviation for "Middle District," in reference 
to the division of the United States into judicial districts; 
e.g. U.S. District Court for middle district of Ohio. Also 
an abbreviation for "Doctor of Medicine" or "Medical 
Doctor." 
Meadow. A tract of low or level land producing grass 
which is mown for hay. A tract which lies above the 
shore, and is overflowed by spring and extraordinary 
tides only, and yields grasses which are good for hay. 
Mean or mesne. A middle between two extremes, 
whether applied to persons, things, or time. Average, 
having an intermediate value between two extremes or 
between the several successive values of variable quanti
ty during one cycle of variation. Western & Southern 
Life Ins. Co. v. Huwe, C.C.A.O hio, 11 6 F.2d 1008, 1009. 
Meander /miyrend;}r/. To meander means to follow a 
winding or flexuous course; and when it it said, in a 
description of land, "thence with the meander of the 
river," it must mean a meandered line,-a line which 
follows the sinuosities of the river,--or, in other words, 
that the river is the boundary between the points indi
cated. 
This term is used in some jurisdictions with the mean
ing of surveying and mapping a stream according to its 
meanderings, or windings and turnings. See Meander 
lines. 
Meander lines. Lines run in surveying particular por
tions of the public lands which border on navigable 
rivers, not as boundaries of the tract, but for the purpose 
of defining the sinuosities of the banks of the stream, 
and as the means of ascertaining the quantity of land in 
the fraction subject to sale, and which is to be paid for 
by the purchaser. In preparing the official plat from 
the field notes, the meander line is represented as the 
border line of the stream, and shows that the water-
980 
course, and not the meander line as naturally run on 
the ground, is the boundary. Niles v. Cedar Point Club, 
175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 171. 
Mean high tide. The "mean high tide" or "ordinary 
high tide" is a mean of all the high tides, and the 
average to be used should be, if possible, the average of 
all the high tides over a period of 18.6 years. O'Neill v. 
State Highway Dept., N.J., 50 N.J. 307, 235 A.2d 1, 9. 
Mean high water mark. The point on the shore which 
the average high tide will reach. 
Meaning. That which is, or is intended to be, signified 
or denoted by act or language; signification; sense; 
import. See also Construction. 
Mean lower low tide. The average of lower low tides 
over a fixed period of time. State v. Edwards, 188 
Wash. 467, 62 P.2d 1094, 1095. 
Mean low tide. The average of all low tides both low 
and lower low over a fixed period of time. State v. 
Edwards, 188 Wash. 467, 62 P.2d 1094, 1095. 
Mean low water mark. The point on the shore which 
the average low tide will reach. 
Mean reserve. The mean of the reserve at the begin
ning of the policy year, after the premium for such year 
is paid, and the terminal reserve at end of such policy 
year. Kentucky Home Life Ins. Co. v. Leisman, 268 Ky. 
825, 105 S.W.2d 1046, 1047. 
Means. That through which, or by the help of which, an 
end is attained; something tending to an object desired; 
intermediate agency or measure; necessary condition or 
co-agent; instrument. Under insurance policy, equiva
lent to cause. Pope v. Business Men's Assur. Co. of 
America, 235 Mo.App. 263, 131 S.W.2d 887, 892. 
Enactments and initiative and referendum measures. 
State ex reI. Bylander v. Hoss, 143 Or. 383, 22 P.2d 883. 
Resources; available property; money or property, as 
an available instrumentality for effecting a purpose, 
furnishing a livelihood, paying a debt, or the like. 
Measure. That by which extent or dimension is ascer
tained, either length, breadth, thickness, capacity, or 
amount. The rule by which anything is adjusted or 
proportioned. See Land measure; Metes and bounds; 
Survey. 
Measure of damages. The rule, or rather the system of 
rules, governing the ad justment or apportionment of 
damages as a compensation for injuries in actions at 
law. See Damages. 
Measure of value. In the ordinary sense of the word, 
"measure" would mean something by comparison with 
which we may ascertain what is the value of anything. 
When we consider, further, that value itself is relative, 
and that two things are necessary to constitute it, inde
pendently of the third thing, which is to measure it, we 
may define a "measure of value" to be something by 
comparing with which any two other things we may 
infer their value in relation to one another. See Value.

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Measuring money. In old English law, a duty which 
some persons exacted, by letters patent, for every piece 
of cloth made, besides alnage. Now abolished. 
Mechanical equivalent. If two devices do the same 
work in sUbstantially the same way, and accomplish 
substantially the same result, they are "mechanical 
equivalents." Wire Tie Machinery Co. v. Pacific Box 
Corporation, C.C.A.CaL, 107 F.2d 54, 56. A device which 
may be substituted or adopted, instead of another, by 
any person skilled in the particular art from his knowl
edge of the art, and which is competent to perform the 
same functions or produce the same result, without 
introducing an original idea or changing the general 
idea of means. The test of equivalency is whether the 
substituted element operates in substantially the same 
way to produce substantially the same result. See also 
Equivalent. 
Mechanical process. See Process. 
Mechanic's lien. A claim created . by state statutes for 
the purpose of securing priority of payment of the price 
or value of work performed and materials furnished in 
erecting, improving, or repairing a building or other 
structure, and as such attaches to the land as well as 
buildings and improvements erected thereon. In re 
Louisville Daily News & Enquirer, D.C.Ky., 20 F.Supp. 
465, 466. Such lien covers materialmen, tradesmen, 
suppliers, and the like, who furnish services, labor, or 
materials on construction or improvement of property. 
See also Commence (Commencement of building or im
provement); Lien waiver; Stop notice statute. 
Mechanic's lienor. The term "mechanic's lienor" 
means any person who under local law has a lien on real 
property (or on the proceeds of a contract relating to 
real property) for services, labor, or materials furnished 
in connection with the construction or improvement of 
such property. I.R.C. § 6323(h). 
Medfee Imedfiy/. In old English law, a bribe or reward; 
a compensation given in exchange, where the things 
exchanged were not of equal value. 
Media annata Imeyoiya anata/miydiY::l ::lneyt::l/. In 
Spanish law, half-yearly profits of land. 
Media concludendi ImiydiY::l kOIJkluwdenday/. The 
steps of an argu ment. Thus "a judgment is conclusive 
as to all the media concludendi." Fauntleroy v. Lum, 
210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. The theory or 
basis of facts upon which a legal conclusion is reached, 
per Holmes, C. J., in Hoseason v. Keegen, 178 Mass. 247, 
59 N.E. 627. Grounds for asserting the right known 
when the suit was brought. Mendez v. Baetjer, C.C.A. 
Puerto Rico, 106 F.2d 163, 166. 
Medire et infirmre manus homines Imiydiyiy et 
inf�rmiy mren::ls h6m::lniyzl. Men of a middle and base 
condition. 
Media nox ImiydiY::l noks/. In old English law, mid
night. Ad mediam noctem, at midnight. 
Medianus homo Imiydiyeyn::ls h6wmo w/ . A man of 
middle fortune. 
MEDICAID 
Mediate datum Imiydiyeydiy deyt::lm/. A fact from 
whose existence may be rationally inferred the existence 
of ultimate facts. The Evergreens v. Nunan, C.C.A. 
N.Y., 141 F.2d 927, 928. 
Mediate descent. See Descent. 
Mediate powers. Those incident to primary powers 
given by a principal to his agent. For example, the 
general authority given to collect, receive, and pay debts 
by or to the principal is a primary power. In order to 
accomplish this, it is frequently required to settle ac
counts, adjust disputed claims, resist those which are 
unjust, and answer and defend suits. These subordinate 
powers are sometimes called "mediate powers." 
Mediate testimony. Secondary evidence (q.v.). 
Mediation. Private, informal dispute resolution process 
in which a neutral third person, the mediator, helps 
disputing parties to reach an agreement. The mediator 
has no power to impose a decision on the parties. See 
also Alternative dispute resolution; Arbitration; Concilia
tion. 
Also, the friendly interference of a neutral nation in 
the controversies of others, for the purpose, by its influ
ence and by adjusting their difficulties, of keeping the 
peace in the family of nations. 
Mediation and Conciliation Service. An independent 
department of the federal government charged with 
trying to settle labor disputes by conciliation and media
tion. 29 U.S,C.A. § 172 et seq. 
The Federal Mediation and Conciliation Service repre
sents the public interest by promoting the development 
of sound and stable labor-management relationships; 
preventing or minimizing work stoppages by assisting 
labor and management to settle their disputes through 
mediation; advocating collective bargaining, mediation, 
and voluntary arbitration as the preferred processes for 
settling issues between employers and representatives of 
employees; developing the art, science, and practice of 
dispute resolution; and fostering constructive joint rela
tionships of labor and management leaders to increase 
their mutual understanding and solution of common 
problems. See also American Arbitration Association; Na
tional Mediation Board. 
Mediator. Neutral third person who helps disputing 
parties to reach agreement through the mediation pro
cess. See also Arbitrator; Referee. 
Mediators of questions. In old English law, six persons 
authorized by statute (27 Edw. III, St. 2, c. 24), who, 
upon any question arising among merchants relating to 
unmerchantable wool, or undue packing, etc., might, 
before the mayor and officers of the staple upon their 
oath certify and settle the same; to whose determina
tion therein the parties concerned were to submit. 
Medicaid. A form of public assistance sponsored jointly 
by the federal and state governments providing medical 
aid for people whose income falls below a certain leveL 
See also Medicare.

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MEDICAL 
Medical. Pertaining, relating or belonging to the study 
and practice of medicine, or the science and art of the 
investigation, prevention, cure, and alleviation of dis
ease. 
Medical care. The term "medical care" is defined 
broadly in the Internal Revenue Code (I.R.C. § 213) and 
more comprehensively in the regulations. It includes 
expenses for doctors, nurses and other medical services, 
as well as payments for operations, hospitals, institu
tional care and transportation necessary to obtain medi
cal care. The basic test for the allowance of medical 
deductions is whether the expense was incurred and 
paid primarily for the prevention or alleviation of a 
physical or mental defect or illness. Edward A. Harvey, 
12 T.C. 409 (1949). See also Medical expenses. 
Medical deduction. See Medical expenses. 
Medical evidence. Evidence furnished by doctors, nurs
es, and other medical personnel testifying in their pro
fessional capacity as experts, or by standard treatises on 
medicine or surgery. Fed.Evid.R. 702, 703. See Expert 
witness. 
Medical examiner. Public officer charged with respon
sibility of investigating all sudden, unexplained, unnatu
ral or suspicious deaths reported to him, including the 
performance of autopsies and assisting the state in crim
inal homicide cases. Term may also include a physician 
who conducts examinations for insurance companies and 
other institutions. The medical examiner has replaced 
the coroner in many states. See also Coroner. 
Medical expenses. Medical expenses, including medi
cines and drugs and health insurance premiums, of an 
individual and his or her dependents are allowed as an 
itemized deduction to the extent that such amounts (less 
insurance reimbursements) exceed a certain percent of 
adjusted gross income. I.R.C. § 213. See also Medical 
care. 
Medical jurisprudence. The science which applies the 
principles and practice of the different branches of medi
cine to the elucidation of doubtful questions in a court of 
law. Otherwise called "forensic medicine" (q.v.). A sort 
of mixed science, which may be considered as common 
ground to the practitioners both of law and medicine. 
Medical malpractice. See Malpractice. 
Medicare. Federal Act (Health Insurance for the Aged 
Act) to provide hospital and medical insurance for aged 
under Social Security Act. 42 U.S.C.A. § 1395 et seq. 
See also Medicaid (state provided medical assistance). 
Medicine. The science and art dealing with the preven
tion, cure and alleviation of diseases; in a narrower 
sense that part of the science and art of restoring and 
preserving health which is the province of the physician 
as distinguished from the surgeon and obstetrician. 
Burke v. Kansas State Osteopathic Ass'n, C.C.A.Kan., 
111 F.2d 250, 253. 
Forensic medicine. Another name for medical jurispru
dence. See Forensic medicine. 
982 
Medico-legal. Relating to the law concerning medical 
questions. See Forensic medicine. 
Medietas lingUa! Im;;)day;;)tres liI]gwiy/. In old practice, 
moiety of tongue; half-tongue. Applied to a jury impan
eled in a cause consisting the one half of natives, and 
the other half of foreigners. See De medietate lingua!. 
Medio acquietando Imiydiyow ;;)kwity;;)trendow/. A judi
cial writ to distrain a lord for the acquitting of a mesne 
lord from a rent, which he had acknowledged in court 
not to belong to him. 
Mediterranean passport. A pass issued by the admiral
ty of Great Britain under various treaties with the 
Barbary States in the eighteenth century. They were 
granted to British built ships and were respected by the 
Barbary pirates. They were also issued by the United 
States. 
Medium of exchange. Anything which serves to facili
tate the exchange of things by providing a common basis 
of measurement such as money, checks, drafts, etc. See 
Legal tender. 
Medium tempus Imiydiy;;)m temp;;)s/. In old English 
law, meantime; mesne profits. 
Medletum Imedliyt;;)m/. In old English law, a mixing 
together; a medley or melee; an affray or sudden en
counter. An offense suddenly committed in an affray. 
The English word "medley" is preserved in the term 
"chance-medley ." An intermeddling, without violence, 
in any matter of business. 
Medley I medliy I. An affray; a sudden or casual fight
ing; a hand to hand battle; a melee. See Chance-med
ley; Chaud-medley. 
Medsceat ImMzchiyt/. In old English law, a bribe; 
hush money. 
Meeting. A coming together of persons; an assembly. 
Particularly, in law, an assembling of a number of 
persons for the purpose of discussing and acting upon 
some matter or matters in which they have a common 
interest; e.g. in corporate law, a meeting of the board of 
directors or of the stockholders. 
Annual meeting. See Regular meeting, below. 
Called meeting. In the law of corporations, a meeting 
not held at a time specially appointed for it by the 
charter or by-laws, but assembled in pursuance of a 
"call" or summons proceeding from some officer, com
mittee or group of stockholders, or other persons having 
authority in that behalf. 
Family meeting. See Family. 
General meeting. A meeting of all the stockholders of a 
corporation, all the creditors of a bankrupt, etc. 
Regular meeting. In the law of public and private 
corporations, a meeting (of directors, trustees, stockhold
ers, etc.) held at the time and place appointed for it by 
statute, by-law, charter or other positive direction. This 
is commonly termed the "annual" meeting of such 
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Special meeting. In the law of corporations, a meeting 
called for special purposes; one limited to particular 
business; a meeting for those purposes of which the 
parties have had special notice. 
Stated meeting. A meeting held at a stated or duly 
appointed time and place; a regular meeting (q. v.). 
Town meeting. See Town. 
Meeting of creditors. See Creditor's meeting. 
Meeting of minds. As essential element of contract, is 
mutual agreement and assent of parties to contract to 
substance and terms. It is an agreement reached by the 
parties to a contract and expressed therein, or as the 
equivalent of mutual assent or mutual obligation. Rice 
v. McKinley, App., 267 Ark. 659, 590 S.W.2d 305, 306. 
The "meeting of the minds" required to make a contract 
is not based on secret purpose or intention on the part of 
one of the parties, stored away in his mind and not 
brought to the attention of the other party, but must be 
based on purpose and intention which has been made 
known or which from all the circumstances should be 
known. McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 
11 4 S.W.2d 181, 189. A subjective understanding is not 
required; it suffices that the conduct of the contracting 
parties indicates an agreement to the terms of the 
alleged contract. Steinberg v. Chicago Medical School, 
69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 640. 
Megalomania Imeg�l�meyniy�/. See Ins anity. 
Megalopolis. Heavily populated continuous urban area 
including many cities. 
Megbote Imegbowt/ . In Saxon law, a recompense for 
the murder of a relation. 
Meigne, or maisnader Imiyn/. In old English law, a 
family. 
Meilicke system. Consists of computing fractions on 
the basis of a 30-day month, and does not charge interest 
for the 31st day of any month. Swistak v. Personal 
Finance Co., 175 Misc. 791, 24 N.Y.S.2d 80, 8l. 
Meindre age Imind�r eyjrazh/. L. Fr. Minority; less
er age. 
Meiny, meine, or meinie Imiyn(iy)/. In old English 
law, a household; staff or suite of attendants; a retinue; 
particularly, the royal household. 
Melancholia Imel�IJk6wliy�/. A kind of mental un
soundness characterized by extreme depression of spir
its, ill-grounded fears, delusions, and brooding over one 
particular subject or train of ideas. Depressed phase of 
manic-depressive psychosis, the intensity and duration 
of which is out of proportion to any apparent precipitat
ing factors. See Ins anity. 
Meldfeoh Imeldfiy/. In Saxon law, the recompense due 
and given to him who made discovery of any breach of 
penal laws committed by another person, called the 
"promoter's [i.e., inf ormer's] fee." 
Melior Imiyl(i)y�r/. Lat. Better; the better. Melior 
res, the better (best) thing or chattel. 
MELIUS, ETC. 
Meliorations Imiyl(i)y�reysh�n(d)z/. In Scottish law, 
improvements of an estate, other than mere repairs; 
betterments. Occasionally used in English and Ameri
can law in the sense of valuable and lasting improve
ments or betterments. 
Meliorem conditionem ecclesire sure facere potest 
prrelatus, deteriorem nequaquam /miyl(i)y6r�m 
k�ndishiy6wn�m �kliyziyiy s(y)uwiy freys�riy p6wt�st 
pr�leyt�s, d�tiriy6r�m n�kweykw�ml . A bishop can 
make the condition of his own church better, but by no 
means worse. 
Meliorem conditionem suam facere potest minor, 
deteriorem nequaquam Imiyl(i)y6r�m bnd ishiy6wn�m 
s(y)uw�m faes�riy p6wt�st mayn�r, d�tiriy6r�m n�kwey
kw�m/. A minor can make his own condition better, but 
by no means worse. 
Melior est causa possidentis Imiyl(i)y�r est k6z� 
pos�dent�s/. The cause of the possessor is preferable. 
Melior est conditio defendentis /miyl(i)y�r est k�n
dish(iy)ow d�fendent�s/. The condition of the party in 
possession is the better one, i.e., where the right of the 
parties is equal. 
Melior est conditio possidentis, et rei quam actoris 
/miyl(i)y�r est k�ndish(iy)ow pos�dent�s et riyay kwrem 
rekt6r�s/. The condition of the possessor is the better, 
and the condition of the defendant is better than that of 
the plaintiff. 
Melior est conditio possidentis ubi neuter jus habet 
Imiyl(i)y�r est k�ndish(iy)ow pos�dent�s yuwbay 
n(y)uwt�r j;}S heyb�t/. The condition of the possessor is 
the better where neither of the two has a right. 
Melior est justitia vere prreveniens quam severe pun
iens Imiyl(i)y�r est j�stish(iy)� viriy pr�viyn(i)y�nz 
kwrem s�viriy pyuwniy�nz/. That justice which abso
lutely prevents [a crime] is better than that which 
severely punishes it. 
Melius est in tempore occurrere, quam post causam 
vulneratum remedium qurerere Imiyl(i)y�s est in 
temp�riy �k;}hr�riy, kwrem post k6z�m v�ln�reyd�m 
r�miyd(i)y�m kwir�riy I. It is better to meet a thing in 
time than after an injury inflicted to seek a remedy. 
Melius est jus deficiens quam jus incertum Imiyl(i)y�s 
est j;}s d�fishiy�nz kwrem j;}S �ns;}rt�m/. Law that is 
deficient is better than law that is uncertain. 
Melius est omnia mala pati quam malo consentire 
Imiyl(i)y�s est 6mniy� mlH� plHay kwrem mrelow 
konsentayriy I. It is better to suffer every ill than to 
consent to ill. 
Melius est petere fontes quam sectari rivulos 
/miyl(i)y�s est pet�riy f6ntiyz kwrem sekteray 
rivy�lows/. It is better to go to the fountain head than 
to follow little streamlets. 
Melius est recurrere quam malo currere Imiyl(i)y�s 
est r�k;}hr�riy kwrem mlHow k;}hr�riy / . It is better to 
run back than to run badly; it is better to retrace one's 
steps than to proceed improperly.

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MELIUS INQUIRENDUM 
Melius inquirendum Imiyl(i)y;)s inkw;)rend;)m/. To be 
better inquired into. 
In old English law, the name of a writ commanding a 
further inquiry respecting a matter; as, after an imper
fect inquisition in proceedings in outlawry, to have a 
new inquest as to the value of lands. 
Member. One of the persons constituting a family, 
partnership, association, corporation, guild, court, legis
lature, or the like. 
A part or organ of the body; especially a limb or other 
separate part. California Casualty Indemnity Exchange 
v. Industrial Accident Commission, Cal.App., 82 P.2d 
111 5, 111 6. 
Member bank. A bank which has become affiliated 
with (i.e. purchased stock in) one of the Federal Reserve 
banks. Member of Federal Reserve System (which in
cludes all nationally chartered banks and any state
chartered banks that have been accepted for member
ship). See Federal Reserve System. 
Member firm. In securities and commodities trading, a 
brokerage firm that is a member of a particular ex
change (e.g. member of New York Stock Exchange). 
Member of Congress. A member of the Senate or 
House of Representatives of the United States. In popu
lar usage, particularly the latter. 
Member of crew. To qualify as a "member of the crew" 
and thus as a "seaman" under the Jones Act, one must 
be more or less permanently attached to a vessel or 
fleet, must be one whose duties serve naturally and 
primarily as an aid to navigation in the broadest sense, 
and the vessel must be in the navigation. 
Member of Parliament. One having the right to sit in 
either house of the British parliament. 
Membrana I membreyn;) I . Lat. In old Civil and Eng
lish law, a skin of parchment. The ancient rolls usually 
consist of several of these skins, and the word "membra
na " is used, in citations to them, in the same way as 
"page" or "folio ," to distinguish the particular skin 
referred to. 
Membrum Imembr;)m/. A slip or small piece of land. 
Memoire Imemw6hr/memwohr/. In French law, a doc
ument in the form of a petition, by which appeals to the 
court of cassation are initiated. 
Memorandum Imem;)rrend;)m/. Lat. To be remem
bered; be it remembered. A formal word with which 
the body of a record in the Court of King's Bench 
anciently commenced. 
An informal record, note or instrument embodying 
something that the parties desire to fix in memory by 
the aid of written evidence, or that is to serve as the 
basis of a future formal contract or deed. A brief 
written statement outlining the terms of an agreement 
or transaction. Informal interoffice communication. 
Under portion of statute of frauds providing that a 
contract not to be performed within a year is invalid 
unless the contract, or some memorandum of the con-
984 
tract, is in writing and subscribed by the party to be 
charged or his agent, the word "memorandum" implies 
something less than a complete contract, and the "mem
orandum" functions only as evidence of the contract and 
need not contain every term, so that a letter may be a 
sufficient "memorandum" to take a case out of the 
statute of frauds. Kerner v. Hughes Tool Co., 128 Cal. 
Rptr. 839, 845, 56 C.A.3d 924. 
This word is used in the statute of frauds as the 
designation of the written agreement, or note or evi
dence thereof, which must exist in order to bind the 
parties in the cases provided. The memorandum must 
be such as to disclose the parties, the nature and sub
stance of the contract, the consideration and promise, 
and be signed by the party to be bound or his authorized 
agent. See U.C.C. § 2-20 1. See also Contract. 
Memorandum articles. In the law of marine insurance, 
this phrase designates the articles of merchandise which 
are usually mentioned in the memorandum clause (q.v.), 
and for which the underwriter's liability is thereby 
limited. 
Memorandum check. See Check. 
Memorandum clause. In a policy of marine insurance 
the memorandum clause is a clause inserted to prevent 
the underwriters from being liable for injury to goods of 
a peculiarly perishable nature, and for minor damages. 
It might begin, for example, as follows: "N. B. Corn, 
fish, salt, fruit, flour, and seed are warranted free from 
average, unless general, or the ship be stranded,"
meaning that the underwriters are not to be liable for 
damage to these articles caused by seawater or the like. 
Memorandum decision. A court's decision that gives 
the ruling (what it decides and orders done), but no 
opinion (reasons for the decision). 
Memorandum in error. A document alleging error in 
fact, accompanied by an affidavit of such matter of fact. 
Memorandum of alteration. Formerly, in England, 
where a patent was granted for two inventions, one of 
which was not new or not useful, the whole patent was 
bad, and the same rule applied when a material part of 
a patent for a single invention had either of those 
defects. To remedy this the statute 5 & 6 Wm. IV, c. 83, 
empowers a patentee (with the fiat of the attorney 
general) to enter a disclaimer (q.v.) or a memorandum of 
an alteration in the title or specification of the patent, 
not being of such a nature as to extend the exclusive 
right granted by the patent, and thereupon the memo
randum is deemed to be part of the letters patent or the 
specification. 
Memorandum of association. In England, a document 
to be subscribed by seven or more persons associated for 
a lawful purpose, by subscribing which, and otherwise 
complying with the requisitions of the companies' acts 
in respect of registration, they may form themselves 
into an incorporated company, with or without limited 
liability. See also Articles of association; Articles of 
incorporation. 
Memorandum sale. See Sale.

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Memorial. A document presented to a legislative body, 
or to the executive, by one or more individuals, contain
ing a petition or a representation of facts. 
In practice, a short note, abstract, memorandum, or 
rough draft of the orders of the court, from which the 
records thereof may at any time be fully made up. See 
Memorandum decision. 
In English law, that which contains the particulars of 
a deed, etc., and is the instrument registered, as in the 
case of an annuity which must be registered. 
Memoriter Im;)mor;)t;)r/. Lat. From memory; by or 
from recollection. Thus, memoriter proof of a written 
instrument is such as is furnished by the recollection of 
a witness who had seen and known it. 
Memory. The word as used in Blackstone and other 
ancient authorities, appeared to be synonymous with 
"mind", whereas the word "memory" in modern times is 
used in a more restricted sense of recollection of past 
events rather than the general state of one's mental 
power. 
Mental capacity; the mental power to review and 
recognize the successive states of consciousness in their 
consecutive order. 
This word, as used in jurisprudence to denote one of 
the psychological elements necessary in the making of a 
valid will or contract or the commission of a crime, 
implies the mental power to conduct a consecutive train 
of thought, or an orderly planning of affairs, by recalling 
correctly the past states of the mind and past events, 
and arranging them in their due order of sequence and 
in their logical relations with the events and mental 
states of the present. See also Mind and memory. 
The phrase "sound and disposing mind and memory" 
means not merely distinct recollection of the items of 
one's property and the persons among whom it may be 
given, but entire power of mind to dispose of property by 
will. See Capacity. 
The reputation and name, good or bad, which a man 
leaves at his death. 
Legal memory. An ancient usage, custom, supposed 
grant (as a foundation for prescription) and the like, are 
said to be immemorial when they are really or fictitious
ly of such an ancient date that "the memory of man 
runneth not to the contrary," or, in other words, "be
yond legal memory." And legal memory or "time out of 
mind," according to the rule of the common law, com
menced from the reign of Richard I, A.D. 11 89. But 
under the statute of limitation of 32 Hen. VIII this was 
reduced to 60 years, and again by that of 2 & 3 Wm. IV, 
c. 71, to 20 years. In the American states, by statute, 
the time of legal memory is generally fixed at a period 
corresponding to that prescribed for actions for the 
recovery of real property, usually about 20 years. 
Menace. To threaten; make threats. An unlawful 
threat of duress or injury to the person, property or 
character of another. Odorizzi v. Bloomfield School 
Dist., 246 C.A.2d 123, 54 Cal.Rptr. 533, 538. Menace 
MENTAL ANGUISH 
may constitute a ground for divorce, or duress such as 
would vitiate a contract. See also Assault. 
Men of straw. Men who used in former days to ply 
about courts of law, so called from their manner of 
making known their occupation (i.e., by a straw in one of 
their shoes), recognized by the name of "straw-shoes ." 
An advocate or lawyer who wanted a convenient witness 
knew by these signs where to meet with one, and the 
colloquy between the parties was brief. "Don't you 
remember?" said the advocate; to which the ready an
swer was, "To be sure I do." "Then come into court and 
swear it." And straw-shoes went into court and swore. 
Athens abounded in straw-shoes. See also Straw man or 
party. 
Mens Im€mz/. Lat. Mind; intention; meaning; under
standing; will. 
Mensa et thoro Imems;) et ()orow I. From bed and board. 
See Divorce. 
Mensalia Imenseyl(i)y;)I . Parsonages or spiritual livings 
united to the tables of religious houses, and called "men
sal benefices" amongst the canonists. 
Mensis Imens;)s/. Lat. In the civil and old English law, 
a month. Mensis vetitus, the prohibited month; fence
month (q.v.). 
Mens legis Imenz liyj;)s/. The mind of the law; that is, 
the purpose, spirit, or intention of a law or the law 
generally. 
Mens legislatoris Imenz lej;)sbtor;)s/. The intention of 
the law-maker. 
Mensor Imensor/. In civil law, a measurer of land; a 
surveyor. 
Mens rea Imenz riy;)/. As an element of criminal re
sponsibility: a guilty mind; a guilty or wrongful pur
pose; a criminal intent. Guilty knowledge and wilful
ness. United States v. Greenbaum, C.C.A.N.J., 138 F.2d 
437, 438. See Model Penal Code § 2.02. See also Crimi
nal (Criminal intent); Knowledge; Knowingly; Premedita
tion; Specific intent. 
Mens testatoris in testamentis spectanda est Imenz 
test;)tor;)s in test;)ment;)s spektrend;) est!. The intention 
of the testator is to be regarded in wills. 
Mensularius Imens;)leriy;)s/. In civil law, a money
changer or dealer in money. 
Mensura Imens(y)ur;)/. In old English law, a measure. 
Mensura domini regis Imens(y)ur;) dom;)nay riyj;)s/. 
"The measure of our lord the king," being the weights 
and measures established under King Richard I, in his 
parliament at Westminster, 11 97. 
Mental. Relating to or existing in the mind; intellectu
al, emotional, or psychic, as distinguished from bodily or 
physical. 
Mental alienation. A phrase sometimes used to de
scribe insanity (q.v.). 
Mental anguish. When connected with a physical inju
ry, this term includes both the resultant mental sensa
tion of pain and also the accompanying feelings of

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MENTAL ANGUISH 
distress, fright, and anxiety. As an element of damages 
implies a relatively high degree of mental pain and 
distress; it is more than mere disappointment, anger, 
worry, resentment, or embarrassment, although it may 
include all of these, and it includes mental sensation of 
pain resulting from such painful emotions as grief, se
vere disappointment, indignation, wounded pride, 
shame, despair and/or public humiliation. Trevino v. 
Southwestern Bell Tel. Co., Tex.Civ.App., 582 S.W.2d 
582, 584. In other connections, and as a ground for 
divorce or for compensable damages or an element of 
damages, it includes the mental suffering resulting from 
the excitation of the more poignant and painful emo
tions, such as grief, severe disappointment, indignation, 
wounded pride, shame, public humiliation, despair, etc. 
See also Mental cruelty. 
Mental capacity or competence. Term contemplates 
the ability to understand the nature and effect of the act 
in which a person is engaged and the business he or she 
is transacting. Jones v. Traders & General Ins. Co., 
Tex.Civ.App., 144 S.W.2d 689, 694. Such a measure of 
intelligence, understanding, memory, and judgment rel
ative to the particular transaction (e.g. making of will or 
entering into contract) as will enable the person to 
understand the nature, terms, and effect of his or her 
act. Conley v. Nailor, 11 8 U.S. 127, 6 S.Ct. 10 01, 30 
L.Ed. 11 2. See also Capacity; Insanity. 
Mental cruelty. A course of conduct on the part of one 
spouse toward the other spouse which can endanger the 
mental and physical health and efficiency of the other 
spouse to such an extent as to render continuance of the 
marital relation intolerable. As a ground for divorce, is 
conduct which causes embarrassment, humiliation and 
anguish so as to render life miserable and unendurable 
or to cause a spouse's life, person or health to become 
endangered. McGowan v. McGowan, 15 Ill.App.2d 913, 
305 N.E.2d 261, 262. See also Indignity; Mental anguish. 
Mental disease or defect. See Insanity. 
Mental incapacity; mental incompetency. Such is 
established when there is found to exist an essential 
privation of reasoning faculties, or when a person is 
incapable of understanding and acting with discretion in 
the ordinary affairs of life. See Incapacity; Ins anity. 
Mental reservation. A silent exception to the general 
words of a promise or agreement not expressed, on 
account of a general understanding on the subject. But 
the word has been applied to an exception existing in 
the mind of the one party only, and has been degraded 
to signify a dishonest excuse for evading or infringing a 
promise. 
Mental state. Capacity or condition of one's mind in 
terms of ability to do or not do a certain act. See Mental 
capacity or competence. 
Mental suffering. See Mental anguish; Mental cruelty. 
Mente captus /mimtiy kcept�s/. Persons who are habit
ually insane. Clanton v. Shattuck, 211 La. 750, 30 So.2d 
823, 824. 
986 
Mentiri /mimtayray/. Lat. To lie; to assert a false-
hood. 
Mentition /mentish;m/. The act of lying; a falsehood. 
Mera noctis /mir;} n6kt;}s/. Midnight. 
Mercable /m�rk;}b;}l/. Merchantable; to be sold or 
bought. 
Mercantant /mark;}ntrent/m�ro /. A foreign trader. 
Mercantile /m�rk;}ntayl/° ;}l/. Of, pertaining to, or char
acteristic of, merchants, or the business of merchants; 
having to do with trade or commerce or the business of 
buying and selling merchandise; trading; commercial; 
conducted or acting on business principles. 
Mercantile agencies. See Credit bureau. 
Mercantile law. An expression substantially equivalent 
to commercial law. It designates the system of rules, 
customs, and usages generally recognized and adopted 
by merchants and traders, and which, either in its 
simplicity or as modified by common law or statutes, 
constitutes the law for the regulation of their transac
tions and the solution of their controversies. The Uni
form Commercial Code is the general body of law gov
erning commercial or mercantile transactions. See Uni
form Commercial Code. 
Mercantile Law Amendment Acts. The statutes 19 & 
20 Vict., cc. 60, 97, passed mainly for the purpose of 
assimilating the mercantile law of England, Scotland, 
and Ireland. 
Mercantile paper. See Commercial paper; Negotiable 
instruments. 
Mercantile specialty. A writing that is not payable to 
order or to bearer but is otherwise negotiable. See 
U.C.C. § 3-805 (making Article 3 applicable to instru
ments lacking words of negotiability). 
Mercative /m�rk;}t;}v/. Belonging to trade. 
Mercatum /m;}rkeyt;}m/. Lat. A market. A contract 
of sale. Supplies for an army (commeatus). 
Mercature /m�rbty;}r/. The practice of buying and 
selling. 
Mercedary /m�rs�dery/. A hirer; one that hires. 
Mercenarius /m�rs�neriy;}s/. A hireling or servant. 
Mercen-Iage /m�rs�nlo/. The law of the Mercians. One 
of the three principal systems of laws which prevailed in 
England about the beginning of the eleventh century. 
It was observed in many of the midland counties, and 
those bordering on the principality of Wales. 1 Bl. 
Comm. 65. 
Merces /m�rsiyz/. Lat. In the civil law, reward of labor 
in money or other things. As distinguished from "pen
sio, " it means the rent of farms (prredia rustici). 
Merchandise. All goods which merchants usually buy 
and sell, whether at wholesale or retail; wares and 
commodities such as are ordinarily the objects of trade 
and commerce. But the term is generally not under
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provisions such as are purchased day by day for immedi
ate consumption (e.g. food). 
Stock of merchandise. See Stock. 
Merchandise broker. One who negotiates the sale of 
merchandise without having it in his possession or con
trol, being simply an agent with very limited powers. 
Hughes v. Young, 17 Tenn.App. 24, 65 S.W.2d 858. See 
Broker. 
Merchandise Marks Act, 1862. The statute 25 & 26 
Vict., c. 88, designed to prevent the fraudulent marking 
of merchandise and the fraudulent sale of merchandise 
falsely marked. 
Merchant. One who is engaged in the purchase and sale 
of goods; a trafficker; a retailer; a trader. Term com
monly refers to person who purchases goods at whole
sale for resale at retail; i.e. person who operates a retail 
business (retailer). 
A person who deals in goods of the kind or otherwise 
by his occupation holds himself out as having knowledge 
or skill peculiar to the practices or goods involved in the 
transaction or to whom such knowledge or skill may be 
attributed by his employment of an agent or broker or 
other intermediary who by his occupation holds himself 
out as having such knowledge or skill. U.C.C. 
§ 2-104(1). 
A man who traffics or carries on trade with foreign 
countries, or who exports and imports goods and sells 
them by wholesale. Merchants of this description are 
commonly known by the name of "shipping merchants." 
Commission merchant. See Commission merchant. 
Law merchant. See Commercial law; Mercantile law. 
Statute merchant. See Statute. 
Merchantability Im�rch;mt;}bil;}tiy/. Means that the 
article sold shall be of the general kind described and 
reasonably fit for the general purpose for which it shall 
have been sold, and where the article sold is ordinarily 
used in but one way, its fitness for use in that particular 
way is impliedly warranted unless there is evidence to 
the contrary. See also Fitness for particular purpose; 
Merchantable; Warranty. 
Merchantable Im�rch;}nt;}b;}lI. Goods, to be "merchant
able," must be fit for the ordinary purposes for which 
such goods are to be used, Consolidated Supply Co. v. 
Babbitt, 96 Idaho 636, 534 P.2d 466, 468, and conform to 
any promises or affirmations of fact made on the con
tainer or label. Virgil v. Kash N' Karry Service, 484 
A.2d 652, 655. Within § 2-314 of the U.C.C. creating 
implied warranty of merchantability, term "merchanta
ble" implies that the goods sold conform to ordinary 
standards of care and that they are of average grade, 
quality and value of similar goods sold under similar 
circumstances. Woodruff v. Clark County Farm Bureau 
Co-op Ass'n, 153 Ind.App. 31, 286 N.E.2d 188, 194. 
Goods to be merchantable must be at least such as: 
pass without objection in the trade under the contract 
description; and in the case of fungible goods, are of fair 
average quality within the description; and are fit for 
MERCY 
the ordinary purposes for which such goods are used; 
and run, within the variations permitted by the agree
ment, of even kind, quality and quantity within each 
unit and among all units involved; and are adequately 
contained, packaged, and labeled as the agreement may 
require; and conform to the promises or ail1rmations of 
fact made on the container or label if any. U.C.C. 
§ 2-314(2). 
See also Fitness for particular purpose; Warranty (Im
plied Warranty of Merchantability or fitness for particu
lar purpose). 
Merchantable title. A good and marketable title in fee 
simple, free from litigation, palpable defects, and grave 
doubts; a title which will enable the owner not only to 
hold it in peace but to sell it to a person of reasonable 
prudence. Overboe v. Overboe, N.D., 160 N.W.2d 650, 
654. Good record title acceptable to a knowledgeable 
buyer not being under duress to purchase. One that can 
be held without reasonable apprehension of being as
sailed and readily transferable in market. Crow Creek 
Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S.W.2d 
369, 370. See also Marketable title; Warranty (Warranty 
of title). 
Merchant appraiser. See Appraiser. 
Merchantman Im�rch;}ntm;}n/. A ship or vessel em
ployed in foreign or domestic commerce or in the mer
chant service. 
Merchants' accounts. Accounts between merchant and 
merchant, which must be current, mutual, and unset
tled, consisting of debts and credits for merchandise. 
Merchant seaman. A sailor employed in a private 
vessel, as distinguished from one employed in the navy 
or public ships. 
Merchant Shipping Acts. Certain English statutes, 
beginning with the St. 16 & 17 Vict., c. 131, whereby a 
general superintendence of merchant shipping is vested 
in the board of trade. See Maritime Commission. 
Merchet Im�rch;}tlmaro I. In feudal law, a fine or com
position paid by inferior tenants to the lord for liberty to 
dispose of their daughters in marriage. The same as 
marcheta (q.v .). 
Merciament Im�rs(h)y;}m;}nt/. An amercement, penal
ty, or fine (q.v .). 
Mercimoniatus Anglire I m;}rs;}mowniyeyt;}s reI]gliyiy I. 
In old records, the impost of England upon merchandise. 
Mercis appellatio ad res mobiles tantum pertinet 
Im�rs;}s rep;}leysh(iy)ow red riyz mowb;}liyz trent;}m 
p�rt;}n;}tI. The term "merchandise" belongs to movable 
things only. 
Mercis appellatione homines non contineri Im�rs;}s 
rep;}leyshiyowniy hom;}niyz non kont;}niray I. Men are 
not included under the denomination of "merchandise ." 
Mercna lagu Im�rkn;} laguw/. See Lagu; Mercen-Iage. 
Mercy. In old English practice, the arbitrament of the 
king or judge in punishing offenses not directly censured

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by law. So, "to be in mercy" signifies to be amerced or 
fined for bringing or defending an unjust suit, or to be 
liable to punishment in the discretion of the court. 
In criminal law, the discretion of a judge, within the 
limits prescribed by law, to remit altogether the punish
ment to which a convicted person is liable, or to mitigate 
the severity of his sentence; as when a jury recommends 
the prisoner to the mercy of the court. 
Mercy killing. Euthanasia. The affirmative act of 
bringing about immediate death allegedly in a painless 
way and generally administered by one who thinks that 
the dying person wishes to die because of a terminal or 
hopeless disease or condition. See also Brain death; 
Death (Natural Death Acts); Right to die laws; 
Will (Living will). 
Mere Imer/. L. Fr. Mother. JEle, mere, fille, grand
mother, mother, daughter. En ventre sa mere, in its 
mother's womb. 
Mere evidence rule. In search and seizure, it was once 
the rule that in a lawful search the officer had a right to 
seize instrumentalities and fruits of the crime but no 
right to seize other items (e.g. clothing of the suspect) 
which are mere evidence. This rule no longer prevails. 
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 
S.Ct. 1642, 18 L.Ed.2d 782. See Fruit of poisonous tree 
doctrine. 
Mere licensee. One who enters upon the land or proper
ty of another without objection, or by the mere permis
sion, sufferance, or acquiescence of the owner or occupi
er. Mann v. Des Moines Ry. Co., 232 Iowa 1049, 7 
N.W.2d 45, 50. See License. 
Merely. Without including anything else; purely; only; 
solely; absolute; wholly. In re Plymouth Motor Corpo
ration, Cust. & Pat.App., 46 F.2d 211, 212. 
Mere motion. The free and voluntary act of a party 
himself, done without the suggestion or influence of 
another person, is said to be done of his mere motion, ex 
mero motu (q. v.). 
The phrase is used of an interference of the courts of 
law, who will, under some circumstances, of their own 
motion, object to an irregularity in the proceedings, 
though no objection has been taken to the informality 
by the plaintiff or defendant in the suit. 
Mere right. The mere right of property in land; the jus 
pro prietatis, without either possession or even the right 
of possession. The abstract right of property. 
Mere-stone. In old English law, a stone for bounding or 
dividing lands. 
Meretricious Imehr;}trish;}s/. Of the nature of unlawful 
sexual connection. The term is descriptive of the rela
tion sustained by persons who contract a marriage that 
is void by reason of legal incapacity. 
Merger. The fusion or absorption of one thing or right 
into another; generally spoken of a case where one of 
the subjects is of less dignity or importance than the 
other. Here the less important ceases to have an inde
pendent existence. 
988 
Contract law. The extinguishment of one contract by its 
absorption into another, and is largely a matter of 
intention of the parties. Caranas v. Jones, Tex.Civ.App., 
437 S.W.2d 905, 910. 
Corporations. An amalgamation of two corporations 
pursuant to statutory provision in which one of the 
corporations survives and the other disappears. The 
absorption of one company by another, the former losing 
its legal identity, and latter retaining its own name and 
identity and acquiring assets, liabilities, franchises, and 
powers of former, and absorbed company ceasing to exist 
as separate business entity. Morris v. Investment Life 
Ins. Co., 27 Ohio St.2d 26, 272 N.E.2d 105, 108, 109, 56 
O.O.2d 14. It differs from a consolidation wherein all 
the corporations terminate their existence and become 
parties to a new one. 
The antitrust laws seek not only to control existing 
monopolies but also to discourage the acquisition of 
market power. Historically, mergers have provided an 
important route to positions of market dominance. Ac
cordingly, Congress has required all mergers, whether 
vertical, horizontal, or conglomerate, to be scrutinized 
under the provisions of section 7 of the Clayton Act. 15 
U.S.C.A. § 18. See also Kefauver-Celler Act; Hart-Scott
Rodino Antitrust Im provement Act. 
Accounting methods. See Pooling of interests; Purchase 
method of accounti ng. 
Cash merger. A merger transaction in which certain 
shareholders or interests in a corporation are required 
to accept cash for their shares while other shareholders 
receive shares in the continuing enterprise. Modern 
statutes generally authorize cash mergers, though 
courts test such mergers on the basis of fairness and, in 
some states, business purpose. 
Conglomerate merger. Merger of corporations which 
are neither competitors nor potential or actual custom
ers or suppliers of each other. U. S. v. General Dynam
ics Corp., D.C.N.Y., 258 F.Supp. 36, 56. One in which 
there are no economic relationships between the ac
quiring and the acquired firm. Kennecott Copper 
Corp. v. F. T. C., C.A.Colo., 467 F.2d 67, 75. A conglom
erate merger is one that is neither vertical nor horizon
tal and can be any of three types. A geographic exten
sion merger occurs when the acquiring firm, by merger, 
extends its dominance to an adjacent geographic mar
ket. See, e.g., United States v. Marine Bancorporation, 
418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978. A product 
extension merger occurs when the merger joins firms in 
related product markets. See, e.g., FTC v. Procter & 
Gamble Co. (Clorox), 386 U.S. 568, 87 S.Ct. 1224, 18 
L.Ed.2d 303. A "pure" conglomerate merger occurs 
when the two merging firms operate in unrelated mar
kets having no functional economic relationship. See, 
e.g., United States v. International Tel. & Tel. Corp., 
324 F.Supp. 19. These categories are not mutually 
exclusive: for example, a merger may have both hori
zontal and vertical aspects. See, e.g., Brown Shoe Co. 
v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 
510.

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Defacto merger. A transaction that has the economic 
effect of a statutory merger but is cast in the form of 
an acquisition of assets or an acquisition of voting stock 
and is treated by a court as if it were a statutory 
merger. Occurs where one corporation is absorbed by 
another, but without compliance with statutory re
quirements for a merger. Arnold Graphics Industries, 
Inc. v. Independent Agent Center, Inc., C.A.N.Y., 775 
F.2d 38, 42. 
Down stream merger. The merger of a parent corpora
tion into its subsidiary. 
Horizontal merger. Merger between business competi
tors, such as manufacturers of the same type products 
or distributors selling competing products in the same 
market area. See also Vertical merger. 
Short form merger. A number of states provide special 
rules for the merger of a subsidiary corporation into its 
parent where the parent owns substantially all of the 
shares of the subsidiary. This is known as a "short
form" merger. Short-form mergers under such special 
statutes may generally be effected by: (a) adoption of a 
resolution of merger by the parent corporation, (b) 
mailing a copy of the plan of merger to all shareholders 
of record of the subsidiary, and (c) filing the executed 
articles of merger with the secretary of state and his 
issuance of a certificate of merger. This type of merger 
is less expensive and time consuming than the normal 
type merger. See e.g. Rev. Model Bus. Corp. Act 
§ 11. 04. 
Triangular merger. A method of amalgamation of two 
corporations by which the disappearing corporation is 
merged into a subsidiary of the surviving corporation 
and the shareholders of the disappearing corporation 
receive shares of the surviving corporation. In a re
verse triangular merger the subsidiary is merged into 
the disappearing corporation so that it becomes a whol
ly owned subsidiary of the surviving corporation. 
Up stream merger. A merger of a subsidiary corpora
tion into its parent. See Short form merger, above. 
Vertical merger. Union with corporate customer or 
supplier. U. S. v. General Dynamics Corp ., D.C.N.Y., 
258 F.Supp. 36, 56. 
Criminal law. When a man commits a major crime 
which includes a lesser offense, or commits a felony 
which includes a tort against a private person, the latter 
is merged in the former. 
Divorce law. Substitution of rights and duties under 
judgment or decree for those under property settlement 
agreement. Roesbery v. Roesbery, 88 Idaho 514, 401 
P.2d 805, 807. 
Judgments. A valid and personal judgment merges the 
original claim in the judgment and thereafter suit is 
brought on the judgment and not on the original claim. 
Restatement of Judgments § 45, comment a. 
Law and equity. Under Rules of Civil Procedure, there 
is now only one form of action, the "civil action," in 
which the parties may be given both legal and equitable 
relief. Fed.R.Civil P. 2. 
MERITS 
Property interests. It is a general principle of law that 
where a greater estate and a less coincide and meet in 
one and the same person, without any intermediate 
estate, the less is immediately annihilated, or, in the law 
phrase, is said to be merged; that is, sunk or drowned, in 
the greater. Thus, if there be tenant for years, and the 
reversion in fee-simple descends to or is purchased by 
him, the term of years is merged in the inheritance, and 
shall never exist any more. Similarly, a lesser interest 
in real estate merges into a greater interest when lessee 
purchases leased property. 
Rights. This term, as applied to rights, is equivalent to 
"confusio" in the Roman law, and indicates that where 
the qualities of debtor and creditor become united in the 
same individual, there arises a confusion of rights which 
extinguishes both qualities; whence, also, merger is 
often called "extinguishment." 
Rights of action. In the law relating to rights of action, 
when a person takes or acquires a remedy or security of 
a higher nature, in legal estimation, than the one which 
he already possesses for the same right, then his reme
dies in respect of the minor right or security merge in 
those attaching to the higher one; as, for example, 
where a claim is merged in the judgment recovered 
upon it. 
. 
Sentences. If a defendant is charged in two duplicitous 
indictments with commission of two crimes, he may be 
sentenced on conviction of the more serious crime but 
not on both indictments, e.g. possession of marihuana 
and possession of the same marihuana at the same time 
and place with intent to sell. Kuklis v. Com., 361 Mass. 
302, 280 N .E.2d 155. 
Title. See Property interests, above. 
Merger clause. A provision in a contract to the effect 
that the written terms may not be varied by prior or 
oral agreements because all such agreements have been 
merged into the written document. See U.C.C. § 2-202. 
Meridians. These are imaginary north and south lines 
which are used in the Governmental Survey System. 
These intersect the base line to form a starting point for 
the measurement of land under that system. 
Meritorious / mehr;}tor(i)y;}s/ . Possessing or character
ized by "merit" in the legal sense of the word. See 
Merits. 
Meritorious cause of action. This description is some
times applied to a person with whom the ground of 
action, or the consideration, originated or from whom it 
moved. For example, where a cause of action accrues to 
a woman while single, and is sued for, after her mar
riage, by her husband and herself jointly, she is called 
the "meritorious cause of action." 
Meritorious consideration. One founded upon some 
moral obligation; a valuable consideration in the second 
degree. 
Meritorious defense. See Defense. 
Merit's. As a legal term, refers to the strict legal rights 
of the parties. Mink v. Keim, 266 App.Div. 184, 41

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N.Y.S.2d 769, 771. The substance, elements, or grounds 
of a cause of action or defense. See Judgment on the 
merits. 
Merit system. System used by federal and state govern
ments for hiring and promoting governmental employ
ees to civil service positions on basis of competence. See 
also Civil service; Merit Systems Protection Board. 
Merit Systems Protection Board. As successor to the 
U.S. Civil Service Commission, this Board has responsi
bility for hearing and adjudicating appeals by Federal 
employees of adverse personnel actions, such as remov
als, suspensions, and demotions. It also resolves cases 
involving reemployment rights, the denial of periodic 
step-increases in pay, actions against administrative law 
judges, and charges of merit system violations. The 
Board has the authority to enforce its decisions and to 
order corrective and disciplinary actions. An employee 
or applicant for employment involved in an appealable 
action that also involves an allegation of discrimination 
may ask the Equal Employment Opportunity Commis
sion to review a Board decision. Final decisions and 
orders of the Board can be appealed to the U.S. Court of 
Appeals for the Federal Circuit. 
Mero motu Imirow mowtuw/. See Ex mero motu; Mere 
motion. 
Merton, statute of Istretyuwt �v m;)rt�n/. An old Eng
lish statute, relating to dower, legitimacy, wardships, 
procedure, inclosure of common, and usury. It was 
passed in 1235 (20 Hen. III), and was named from 
Merton, in Surrey, where parliament sat that year. 
Merum Imir�m/. In old English law, mere; naked or 
abstract. Merum jus, mere right. 
Merx Im;)rks/. Lat. Merchandise; movable articles 
that are bought and sold; articles of trade. 
Merx est quicquid vendi potest Im;)rks est kwi(d)kwid 
v€mday powt�st/. Merchandise is whatever can be sold. 
Mescreauntes Imeskriyonts/miskriy�nts/. L. Fr. 
Apostates; unbelievers. 
Mescroyant Imeskriyont/miskriy�nt/. A term used in 
the ancient books to designate an infidel or unbeliever. 
Mese Imiys/. A house and its appurtenance. 
Mesnalty or mesnality Imiyn�ltiy/miynrel�diy/. A 
manor held under a superior lord. The estate of a 
mesne. 
Mesne Imiyn/. Intermediate; intervening; the middle 
between two extremes, especially of rank or time. 
In feudal law, an intermediate lord; a lord who stood 
between a tenant and the chief lord; a lord who was also 
a tenant. 
As to mesne Conveyance and Process, see those titles. 
Mesne assignment. If A. grant a lease of land to B., 
and B. assign his interest to C., and C. in his turn assign 
his interest therein to D., in this case the assignments so 
made by B. and C. would be termed "mesne assign
ments;" that is, they would be assignments intervening 
990 
between A.'s original grant and tlie vesting of D.'s inter
est in the land under the last assignment. 
Mesne incumbrance. An intermediate charge, burden, 
or liability; an incumbrance which has been created or 
has attached to property between two given periods. 
Mesne lord. In old English law, a middle or interme
diate lord; a lord who held of a superior lord. 2 Bl. 
Comm. 59. More commonly termed a "mesne" (q.v.). 
Mesne process. See Process. 
Mesne profits. Intermediate profits; i.e., profits which 
have been accruing between two given periods. Dumas 
v. Ropp, 98 Idaho 61, 558 P.2d 632, 633. Value of use or 
occupation of land during time it was held by one in 
wrongful possession and is commonly measured in terms 
of rents and profits. See also Profit. 
Mesne, writ of. An ancient and abolished writ, which 
lay when the lord paramount distrained on the tenant 
paravail. The latter had a writ of mesne against the 
mesne lord. 
Message. Any notice, word, or communication, no mat
ter the mode and no matter how sent, from one person 
to another. 
President's message. An annual communication from 
the president of the United States to Congress, made at 
or near the beginning of each session, embodying his 
views on the state and exigencies of national affairs, 
suggestions and recommendations for legislation, and 
other matters. U.S.C onst. art. 2, § 3. 
Message from the crown. In old English law, the 
method of communicating between the sovereign and 
the house of parliament. A written message under the 
royal sign-manual was brought by a member of the 
house, being a minister of the crown or one of the royal 
household. Verbal messages were also sometimes deliv
ered. 
Messarius Im�seriy�s/. In old English law, a chief serv
ant in husbandry; a bailiff. 
Messenger. One who bears messages or errands; a 
ministerial officer employed by executive officers, legis
lative bodies, and courts of justice, whose service con
sists principally in carrying verbal or written communi
cations or executing other orders. 
Messuage. Dwelling-house with the adjacent buildings 
and curtilage. Term formerly had a more extended 
signification. 
Meta Imiyt�/. Lat. A goal, bound, or turning-point. In 
old English law, the term was used to denote a bound or 
boundary line of land; a landmark; a material object, as 
a tree or a pillar, marking the position or beginning of a 
boundary line. 
Metallum Im�trebm/. Lat. In Roman law, metal; a 
mine. Labor in mines, as a punishment for crime. 
Metatus Im�teyt�s/. In old European law, a dwelling; a 
seat; a station; quarters; the place where one lives or 
stays.

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991 
Metayer system Im;}tey;}ro Im;}b�yey sist;}m/. A system 
of agricultural holdings, under which the land is divid
ed, in small farms, among single families, the landlord 
generally supplying the stock which the agricultural 
system of the country is considered to require, and 
receiving, in lieu of rent and profit, a fixed proportion of 
the produce. This proportion, which is generally paid in 
kind, is usually one-half. The system prevails in some 
parts of France and Italy. 
Metecorn. A measure or portion of corn, given by a lord 
to customary tenants as a reward and encouragement 
for labor. 
Metegavel Imiytgrev;}l/. A tribute or rent paid in vict
uals. 
Meter. An instrument of measurement; as a coal-meter, 
a gas-meter, a land-meter. 
The basic metric unit of length; equivalent to 39.37 
inches. See also Metric system. 
Meter rate. Rate applied to charge for utility services 
based upon quantity used; e.g. kilowatt hours of electric
ity. 
Metes and bounds Imiyts ;}n bawndz/. The boundary 
lines of land, with their terminal points and angles. A 
way of describing land by listing the com pass directions 
and distances of the boundaries. It is often used in 
connection with the Government Survey System. See 
also Land measure. 
Metewand, or meteyard Imiytwond/miytyard/. A staff 
of a certain length wherewith measures are taken. 
Methadone. A synthetic opiate of approximately the 
same strength :;t,s morphine. 
Methamphetamine. A synthetic drug, closely related to 
amphetamines and producing prominent central stimu
lant reactions without peripheral effects. 
Methel Imefhl/. Sax. Speech; discourse. Mathlian, to 
speak; to harangue. 
Method. The mode of operating, or the means of attain
ing an object. In patent law, "engine" and "method" 
mean the same thing, and may be the subject of a 
patent. Method, properly speaking, is only placing sev
eral things, or performing several operations, in the 
most convenient order, but it may signify a contrivance 
or device. 
Metric system. A decimal system of weights and mea
sures based on the meter as a unit length and the 
kilogram as a unit mass. Derived units include the liter 
for liquid volume, the stere for solid volume, and the are 
for area. 
Metropolitan Imetr;}p61;}t;}n/. Of or pertaining to a city 
or metropolis and the cluster of towns surrounding it. 
In ecclesiastical matters, the head of a province or an 
archbishop. 
Metropolitan council. Official or quasi-official body 
appointed or elected by voters in the city and towns 
which comprise the metropolitan area. The powers and 
duties of such council are set by statute. Created to 
MIDDLE LINE OF MAIN CHANNEL 
provide unified administration of functions and services 
common to cities and towns within metropolitan area; 
e.g. sewage disposal, public transportation, water supply. 
Metropolitan district. A special district embracing 
parts or the whole of several contiguous cities or other 
areas, created by a State to provide unified administra
tion of one or more functions; e.g., sewage disposal, 
water supply, metropolitan transit. 
Metteshep, or mettenschep Imiytsh;}p/. In old English 
law, an acknowledgment paid in a certain measure of 
corn; or a fine or penalty imposed on tenants for default 
in not doing their customary service in cutting the lord's 
corn. 
Metus Imiyt;}s/. Lat. Fear; terror. In a technical 
sense, a reasonable and well-grounded apprehension of 
some great evil, such as death or mayhem, and not 
arising out of mere timidity, but such as might fall upon 
a man of courage. Fear must be of this description in 
order to amount to duress avoiding a contract. 
Meubles Imyuwbl;}/. In French law, the movables of 
English law. Things are meubles from either of two 
causes: (1) From their own nature, e.g., tables, chairs; or 
(2) from the determination of the law, e.g., obligations. 
Meum est promittere, non dimittere Imiy;}m est 
pr;}mit;}riy non d;}mit;}riy/. It is mine to promise, not to 
discharge. 
Mexican divorce. Term used to describe divorce decree 
in Mexico either by mail order or by the appearance of 
one spouse who never acquires a Mexican domicile. In 
both cases, the divorce is not entitled to recognition in 
the United States. Bethune v. Bethune, 192 Ark. 811, 
94 S.W.2d 1043. 
Michaelmas sittings. In England, one of the four divi
sions of the legal year. Formerly called terms. See also 
Hilary term; Easter term; and Trinity sittings. 
Miche, or mich Imich/. O. Eng. To practice crimes 
requiring concealment or secrecy; to pilfer articles se
cretly. Micher, one who practices secret crime. 
Michel-gemot Imik;}lg;}mowt/. One of the names of the 
general council immemorially held in England. The 
Witenagemote. 
One of the great councils of king and noblemen in 
Saxon times. 
Michel-synoth Imik;}lsin;}d/. Great council. One of the 
names of the general council of the kingdom in the 
times of the Saxons. 
Michery Imich;}riy/. In old English law, theft; cheat
ing. 
Mid-channel. In international law and by the usage of 
European nations, the terms "middle of the stream" and 
"mid-channel" of a navigable river are synonymous and 
interchangeably used. 
Middle line of main channel. The equidistant point in 
the main channel of the river between the well-defined 
banks on either shore.

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MIDDLEMAN 
Middleman. One who merely brings parties together in 
order to enable them to make their own contracts. 
An agent between two parties; an intermediary who 
performs the office of a broker or factor between seller 
and buyer, producer and consumer, land-owner and ten
ant, etc. One who has been employed as an agent by a 
principal, and who has employed a subagent under him 
by authority of the principal, either express or implied. 
A person who is employed both by the seller and 
purchaser of goods, or by the purchaser alone, to receive 
them into his possession, for the purpose of doing some
thing in or about them. One who buys at one price from 
a manufacturer for resale at a higher price. Distribu
Dor, Inc. v. Karadanis, 11 Cal.App.3d 463, 90 Cal.Rptr. 
231, 235. 
See also Broker; Finder; Jobber. 
'Middle of the river. The phrases "middle of the river" 
and "middle' of the main channel" are equivalent ex
pressions, and both mean the main line of the channel 
or the middle thread of the current. 
Middle term. A phrase used in logic to denote the term 
which occurs in both of the premises in the syllogism, 
being the means of bringing together the two terms in 
the conclusion. 
Middle thread. The middle thread of a stream is an 
imaginary line drawn lengthwise through the middle of 
its current. 
Midnight deadline. A term of the check collection 
process applicable to a bank, meaning "midnight on its 
next banking day following the banking day on which it 
receives the relevant item or notice or from which the 
time for taking action commences to run, whichever is 
later." U.C.C. § 4-104(1)(h). 
Midshipman. A kind of naval cadet, whose business is 
to second or transmit the orders of the superior officers 
and assist in the necessary business of the vessel, but 
understood to be in training for a commission. A passed 
midshipman is one who has passed an examination and 
is a candidate for promotion to the rank of lieutenant. 
U. S. v. Cook, 128 U.S. 254, 9 S.Ct. 108, 32 L.Ed. 464. 
Cadet at U.S. Naval Academy. 
Midsummer-day. The summer solstice, which is about 
June Twenty-Second, and the feast of St. John the 
Baptist, a festival first mentioned by Maximus Tauricen
sis, A.D. 400. It was generally a quarter-day for the 
payment of rents, etc. 
Midway. See Thalweg. 
Midwife. A woman who assists at childbirth; an accou
cheuse. 
Might, v. The past tense of the word "may". Equiva
lent to "had power" or "was possible" or "have the 
physical or moral opportunity to be contingently possi
ble." In re Weidberg's Estate, 172 Misc. 524, 15 N.Y. 
S.2d 252, 257. 
Migrans jura amittat ac privilegia et immunitates 
domicilii prioris Imaygrrenz Jur� �mit�t rek 
priv�liyj(iy)� et �myuwn�teytiyz dom�siliyay pray6r�s/. 
992 
One who emigrates will lose the rights, privileges, and 
immunities of his former domicile. 
Migration. Movement from one place to another; from 
one country or region to another country or region. 
Migratory divorce. Term used to describe a divorce 
secured by a spouse WilO leaves his or her domicile and 
moves to, or resides temporarily in, another state or 
country for purpose of securing the divorce. See also 
Mexican divorce. 
Migratory game. Generally applied to birds which 
move from one place to another in season. 
Mile. A measure of length or distance, containing 8 
furlongs, or 1,760 yards, or 5,280 feet; or 1,609 meters. 
This is the measure of an ordinary or statute mile; but 
the nautical or geographical mile contains 6,080 feet. 
See Land measure. 
Mileage. Allowance for traveling expenses at certain 
rate per mile. Especially to members of legislative 
bodies, witnesses, sheriffs, and bailiffs. See also Per 
diem. 
Mileage tax. License tax imposed upon intrastate busi
ness of transportation for compensation on public roads 
of state. 
Miles Imayliyzl. Lat. In civil law, a soldier. 
In old English law, a knight, because military service 
was part of the feudal tenure. Also a tenant by military 
service, not a knight. 1 Bl.Comm. 404. 
Milestones. Stones set up to mark the miles on a road 
or railway. 
Militare Imil�teriy/. To be knighted. 
Military. Pertaining to war or to the army; concerned 
with war. Also the whole of military forces, staff, etc. 
under the Department of Defense. 
Military appeals. See Court of Military Appeals. 
Military base. See Base. 
Military boards. A military board is a body of persons 
appointed to act as a fact finding agency or as an 
advisory body to the appointing authority. A military 
board may be appointed to investigate, advise, adminis
ter or adjudicate. Military boards may act as investigat
ing committees to determine the cause of property dam
age, injury, or death, or to inquire into loss or misappro
priation of property or funds. Boards may also act as 
administrative tribunals to examine the applicable facts, 
hear evidence, and make determination concerning per
sonnel matters such as promotion, separation, and re
tirement. 
Military bounty land. See Bounty. 
Military commissions. Courts whose procedure and 
composition are modeled upon courts-martial, being the 
tribunals by which alleged violations of martial law are 
tried and determined. The membership of such commis
sions is commonly made up of civilians and army offi
cers. They are probably not known outside of the Unit-

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993 
ed States, and were first used by General Scott during 
the Mexican war. 
Military court of inquiry. A military court of special 
and limited jurisdiction, convened to investigate specific 
matters. 10 U.S.C.A. § 935. Proceedings do not include 
a trial of issues in which anyone is formally a party; its 
traditional function has been to investigate and advise 
whether further proceedings shall be had. U.S. v. Shib
ley, D.C.Ca l.1953, 11 2 F.Supp. 734, 742-743. 
Military courts. Courts convened subject to the Code of 
Military Justice (10 U.S.C.A. § 801 et seq.); e.g. Courts
martial, Court of Military Review, Military Court of 
Inquiry; Court of Military Appeals. 
Military feuds. See Feud. 
Military government. Such as is exercised by military 
commander under direction of President in time of for
eign war without the boundaries of the United States, or 
in time of rebellion and civil war within states or 
districts occupied by rebels. Such supersedes local law. 
Hammond v. Squier, D.C.Wash., 51 F.Supp. 227, 230. 
See Martial law. 
Military jurisdiction. There are under the Constitu
tion, three kinds of military jurisdiction: one to be 
exercised both in peace and war; another to be exercised 
in time of foreign war without the boundaries of the 
United States or in time of rebellion and civil war 
within states or districts occupied by rebels treated as 
belligerents; and a third to be exercised in time of 
invasion or insurrection within the limits of the United 
States or during rebellion within the limits of states 
maintaining adhesion to the National Government, 
when the public danger requires its exercise. The first 
of these may be called jurisdiction under "military law" 
and is found in acts of Congress prescribing rules and 
articles of war, or otherwise providing for the govern
ment of the national forces; the second may be distin
guished as "military government" superseding, as far as 
may be deemed expedient the local law, and exercised 
by the military commander under the direction of the 
President, with the express or implied sanction of Con
gress; while the third may be denominated "martial 
law", and is called into action by Congress, or temporari
ly when the action of Congress cannot be invited, and in 
the face of justifying or excusing peril, by the President 
in times of insurrection or invasion, or of civil or foreign 
war, within districts or localities where ordinary law no 
longer adequately secures public safety and private 
rights. United States v. Minoru Yasui, D.C.Or., 48 
F.Supp. 40, 46, 47. 
Military justice. See Code of Military Justice; Court 
Martial; Court of Military Appeals. 
Military law. A system of regulations for the govern
ment of armed forces. That branch of the laws which 
respects military discipline and the government of per
sons employed in the military service. Military law is 
distinct from martial law, in that it applies only to 
persons in the military or naval service of the govern
ment; whereas, martial law, when once established, 
Black's Law Dictionary 6th Ed.-22 
MILL POWER 
applies alike to citizens and soldiers and supersedes civil 
law. See Code of Military Justice. 
Military offenses. Those offenses which are cognizable 
by the military courts, as insubordination, sleeping on 
guard, desertion, etc. See Code of Military Ju stice; Court 
Martial. 
Military office. See Office. 
Military officer. See Officer. 
Military Review, Courts of. Each armed service has a 
Court of Military Review which reviews courts-martial 
decisions. 10 U.S.C.A. § 866. Further appeal is to the 
U.S. Court of Military Appeals. See Court of Military 
Appeals. 
Military tenures. The various tenures by knight-ser
vice, grand-ser jeanty, cornage, etc., were frequently 
called "military tenures," from the nature of the servic
es which they involved. 
Military testament. See Testament. 
Milites /mil�tiyz/. Lat. Knights. 
Militia /m�lisb /. The body of citizens in a state, en
rolled for discipline as a military force, but not engaged 
in actual service except in emergencies, as distinguished 
from regular troops or a standing army. State v. Daw
son, 272 N.C. 535, 159 S.E.2d 1, 9. 
Militiamen /m�lish�m�n/. Comprehends every tempo
rary citizen-soldier who in time of war or emergency 
enters active military service of the country. Critchlow 
v. Monson, 102 Utah 378, 131 P.2d 794, 798. 
Mill. One-tenth of one cent. Many states use a mill rate 
to compute property taxes. See Mill rate. 
Miller Act. Federal statute which requires the posting 
of performance and payment bonds before an award 
may be made for a contract beyond a certain amount for 
construction, alteration or repair of a public building or 
public work of the U.S. government. 40 U.S.C.A. 
§§ 270a-270f. 
Miller-Tydings Act. Federal Act (15 U.S.C. § 1) grant
ing anti-trust exemption to State laws which permitted 
resale price maintenance agreements (fair trade laws). 
This exemption was repealed in 1975. 
Milling in transit. A special privilege allowable at 
certain designated points, whereby the carrier, having 
transported grain to a shipper's mill, agrees that the 
shipper may reship the meal without charge and for 
which extra compensation is usually exacted by inter
state carriers under control of the Interstate Commerce 
Commission. 
Mill power. An expression designating a unit of water 
power. It is the descriptive term used to rate water 
power for the purpose of renting it. It indicates the 
amount of power due to a stated quantity of water used 
on the particular fall. It is a term of practical conve
nience in defining the quantity and weight of water 
available for use by the lessee. The actual amount of 
horse power developed may vary with the efficiency of

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MILL POWER 
the water wheels and other appliances supplied by the 
lessee. 
Mill privilege. The right of a riparian proprietor to 
erect a mill on his land and to use the power furnished 
by the stream for the purpose of operating the mill, with 
due regard to the rights of other owners above and 
below him on the stream. 
Mill rate. Tax applied to real property. Each mill 
represents $1 of tax assessment per $1000 of property 
value assessment. See also Mill. 
Mill site. A parcel of land on or contiguous to a water
course, suitable for the erection and operation of a mill 
operated by the power furnished by the stream. Specifi
cally, in mining law, a parcel of land constituting a 
portion of the public domain, located and claimed by the 
owner of a mining claim under the laws of the United 
States (or purchased by him from the government and 
patented), not exceeding five acres in extent, not includ
ing any mineral land, not contiguous to the vein or lode, 
and occupied and used for the purpose of a mill or for 
other uses directly connected with the operation of the 
mine; or a similar parcel of land located and actually 
used for the purpose of a mill or reduction plant, but not 
by the owner of an existing mine nor in connection with 
any particular mining claim. See 30 U.S.C.A. § 42. 
Mina /mayn;:)/. In old English law, a measure of corn or 
grain. 
Minage /mayn;:)j/. A toll or duty paid for selling corn by 
the mina. 
Minare /m;:)neriy/. In old records, to mine or dig mines. 
Minator, a miner. 
Minatur innocentibus qui parcit nocentibus 
/m;:)neyt;:)r in;:)sent;:)b;:)s kwily pars;:)t n;:)sent;:)b;:)s/. He 
threatens the innocent who spares the guilty. 
Mind. In its legal sense, "mind" means only the ability 
to will, to direct, to permit, or to assent. 
Mind and memory. A phrase applied to testators, de
noting the possession of mental capacity to make a will. 
In other words, one ought to be capable of making his 
will, with an understanding of the nature of the busi
ness in which he is engaged, a recollection of the proper
ty he means to dispose of, of the persons who are the 
objects of his bounty, and the manner in which it is to be 
distributed between them. See also Capacity. 
Mind, state of. Evidence is admissible to show a per
son's state of mind when this issue is material and 
relevant to the case; e.g. statements indicating despair 
may be admissible on issue of suicide. Fed.Evid.R. 
803(3). See also Mental state. 
Mine. An excavation in the earth from which ores, coal, 
or other mineral substances are removed by digging or 
other mining methods, and in its broader sense it de
notes the vein, lode, or deposit of minerals. Atlas Mill
ing Co. v. Jones, C.C.A.Okl., 115 F.2d 61, 63. It may 
include open cut, strip, or hydraulic methods of mining. 
Rudd v. Hayden, 265 Ky. 495, 97 S.W.2d 35, 37. 
994 
Mineral, adj. Relating to minerals or the process and 
business of mining; bearing or producing valuable min
erals. 
Mineral, n. Any valuable inert or lifeless substance 
formed or deposited in its present position through natu
ral agencies alone, and which is found either in or upon 
the soil of the earth or in the rocks beneath the soil. 
Any natural constituent of the crust of the earth, 
inorganic or fossil, homogeneous in structure, having a 
definite chemical composition and known crystallization. 
The term includes all fossil bodies or matters dug out of 
mines or quarries, whence anything may be dug, such as 
beds of stone which may be quarried. 
The word is not a definite term and is susceptible of 
limitations or extensions according to intention with 
which it is used. In its ordinary and common meaning 
is a comprehensive term including every description of 
stone and rock deposit whether containing metallic or 
nonmetallic substances. West Virginia Dept. of High
ways v. Farmer, 159 W.Va. 823, 226 S.E.2d 717, 71 9. 
Standing alone it might by itself embrace the soil, hence 
include sand and gravel, or, under a strict definition, it 
might be limited to metallic substances. Puget Mill Co. 
v. Duecy, 1 Wash.2d 421, 96 P.2d 571, 573, 574. The 
term "mineral" as it is used in the public land laws is 
more restricted than it is when used in some other 
respects. Its definition has presented many difficulties. 
It has been held that for purposes of mining laws, a 
mineral is whatever is recognized as mineral by the 
standard authorities on the subject. United States v. 
Toole, D.C.Mont., 224 F.Supp. 440, 444. 
Mineral deed. A realty conveyance involving a sever
ance from fee of present title to minerals in place, either 
effecting such severance in first instance or conveying 
part of such mineral ownership previously severed from 
the fee. Hickey v. Dirks, 156 Kan. 326, 133 P.2d 1 07, 
109, 11 0. 
Mineral district. A term occasionally used in acts of 
congress, designating in a general way those portions or 
regions of the country where valuable minerals are 
mostly found, or where the business of mining is chiefly 
carried on, but carrying no very precise meaning and 
not a known term of the law. 
Mineral land entry. See Entry. 
Mineral lands. Lands containing deposits of valuable, 
useful, or precious minerals in such quantities as to 
justify expenditures in the effort to extract them, and 
which are more valuable for the minerals they contain 
than for agricultural or other uses. Northern Pac. R. 
Co. v. Soderberg, 188 U.S. 526, 23 S.Ct. 365, 47 L.Ed. 575; 
Deffeback v. Hawke, 11 5 U.S. 392, 6 S.Ct. 95, 29 L.Ed. 
423. Lands on which metals or minerals have been 
discovered in rock in place. Such lands include not 
merely metaliferous lands, but all such as are chiefly 
valuable for their deposits of mineral character, which 
are useful in arts or valuable for purposes of manufac
ture, Dunbar Lime Co. v. Utah-Idaho Sugar Co., C.C.A. 
Utah, 17 F.2d 351, 354; and embrace not only those 
which the lexicon defines as "mineral", but, in addition,

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995 
such as are valuable for deposits of marble, slate, petro
leum, asphaltum, and even guano. United States v. 
Northern Pac. R. Co., 311 U.S. 317, 61 S.Ct. 264, 284, 85 
L.Ed. 210. 
Mineral lease. An agreement permitting use of land to 
explore, and then, if mineral is discovered, giving right 
to take mineral either for definite term or so long as it 
can be produced in paying quantities upon reserved 
royalty. Gordon v. Empire Gas & Fuel Co., C.C.A.Tex., 
63 F.2d 487, 488. A mineral lease so characterized as a 
real right, is merely a contract which permits the lessee 
to explore for minerals on the land of the lessor in 
consideration of the payment of a rental and/or bonuses. 
Prestridge v. Humble Oil & Refining Co., La.App., 131 
So.2d 810, 820. See also Mining lease. 
Mineral lode. A mineral bed of rock with definite 
boundaries in a general mass of the mountain and also 
any zone or belt of mineralized rock lying within bound
aries clearly separating it from the neighboring rock. 
Mineral right. An interest in minerals in land, with or 
without ownership of the surface of the land. A right to 
take minerals or a right to receive a royalty. Missouri 
Pac. R. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557, 
56 1. 
Mineral royalt�. Income received from lessees of min
eral land. Logan Coal & Timber Ass'n v. Helvering, 
C.C.A.Pa., 122 F.2d 848, 850. The term is distinguished 
from mineral interest. Maddox v. Butchee, 203 La. 299, 
14 So.2d 4, 9. See also Mineral lease; Royalty. 
Mineral servitude. The right to exploit or develop 
minerals. Frost Lumber Industries v. Republic Produc
tion Co., C.C.A.La., 11 2 F.2d 462, 466. 
Minerator /min:m�yt::lr/. In old records, a miner. 
Miner's inch. See Inch. 
Minimal contacts. See Minimum contacts. 
Minima prena corporalis est major qualibet pecunia
ria /min::lm::l piyn::l korp::lreyl::ls est meyj::lr kweyl::lb::lt 
p::lkyuwniyeriY::l/. The smallest corporal punishment is 
greater than any pecuniary one. 
Mini-maxi. An underwriting arrangement with a bro
ker requiring the broker to sell the minimum on an 
all-or-none basis and the balance on a best-efforts basis. 
Minime mutanda sunt qure certam habuerunt inter
pretationem /min::lmiy myuwtrend::l s;}nt kwiy s�rt::lm 
hrebyuwir::lnt ::lnt;}rpr::lteyshiy6wn::lm/. Things which 
had had a certain interpretation [whose interpretation 
has been settled, as by common opinion] are not to be 
altered. 
Miniment /min::lm::lnt/. An old form of muniment (q.v.). 
Minimum charge. The lowest tariff which may be 
charged to a customer of a public utility or common 
carrier regardless of the amount of service rendered. 
Minimum. The least quantity assignable, admissible or 
possible in given case and is opposed to maximum. 
MINING CLAIM 
Board of Ed. of City of Rockford v. Page, 33 Ill.2d 372, 
211 N.E.2d 361, 363. 
Minimum contacts. A doctrine referring to the mini
mum due process requirement for subjecting a non-resi
dent civil defendant to a court's personal jurisdiction. 
The defendant must have sufficient contacts with the 
forum state such that maintenance of the suit does not 
offend traditional notions of fair play and substantial 
justice. International Shoe Co. v. State of Washington, 
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. It exists when a 
defendant takes purposeful and affirmative action, the 
effect of which is to cause business activity, foreseeable 
by the defendant, in the forum state. Mississippi Inter
state Exp., Inc. v. Transpo, Inc., C.A.Miss., 681 F.2d 
1003, 1007. See also Doing business; Long arm statutes. 
Minimum est nihilo proximum /min::lm::lm est miy
(h)::llow pr6ks::lm::lm/. The smallest is next to nothing. 
Minimum fee schedules. Schedules of fees which may 
be charged by lawyers and published generally by bar 
associations for guidance of the members of the local 
bar. The trend has been to abolish such schedules as 
being in violation of the anti-trust laws. Goldfarb v. 
Virginia State Bar Ass'n, 421 U.S. 773, 95 S.Ct. 2004, 44 
L.Ed.2d 572. 
Minimum lot. The least amount of square footage re
quired for a lot to be approved under local zoning laws. 
Minimum royalty clause. Provision in royalty agree
ment which prescribes a fixed obligation of the licensee 
regardless of whether the invention is used or not. 
Minimum sentence. The least severe sentence which a 
judge may impose. 
Minimum tax. See Alternative minimum tax. 
Minimum wage. The minimum hourly rate of compen
sation for labor, as established by federal statute and 
required of employers engaged in businesses which af
fect interstate commerce. 29 U.S.C.A. § 206 et seq. 
Most states also have similar statutes governing mini
mum wages (e.g., Mass.G.L. ch. 151). The least wage on 
which an ordinary individual can be self-sustaining and 
obtain the ordinary requirements of life. Associated 
Industries of Oklahoma v. Industrial Welfare Commis
sion, 185 Ok!. 177, 90 P.2d 899, 913. See also Fair Labor 
Standards Act. 
Mining. The process or business of extracting from the 
earth the precious or valuable metals, either in their 
native state or in their ores. 
Mining claim. A parcel of land, containing precious 
metal in its soil or rock, and appropriated by an individ
ual, according to established rules, by the process of 
"location ." St. Louis Smelting & Refining Co. v. Kemp, 
104 U.S. 636, 26 L.Ed. 875. 30 U.S.C.A. § 21 et seq. 
A mining claim on public lands is a possessory inter
est in land that is mineral in character and as respects 
which discovery within the limits of the claim has been 
made. Best v. Humboldt Placer Min. Co., 371 U.S. 334, 
83 S.Ct. 379, 382, 9 L.Ed.2d 350. 
See also Mining location; Placer claim.

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MINING DISTRICT 
Mining district. A section of country usually designat
ed by name and described or understood as being con
fined within certain natural boundaries, in which the 
precious metals (or their ores) are found in paying 
quantities, and which is worked therefor, under rules 
and regulations prescribed or agreed upon by the miners 
therein. See also Mining location. 
Mining lease. A lease of a mine or mining claim or a 
portion thereof, to be worked by the lessee, usually 
under conditions as to the amount and character of 
work to be done, and reserving compensation to the 
lessor either in the form of a fixed rent or a royalty on 
the tonnage of ore mined, and which (as distinguished 
from a license) conveys to the lessee an interest or estate 
in the land, and (as distinguished from an ordinary 
lease) conveys not merely the temporary use and occupa
tion of the land, but a portion of the land itself, that is, 
the ore in place and unsevered and to be extracted by 
the lessee. See also Mineral lease. 
Mining location. The act of appropriating and claim
ing, according to certain established rules anc;l local 
customs, a parcel of land of defined area, upon or in 
which one or more of the precious metals or their ores 
have been discovered, and which constitutes a portion of 
the public domain, with the declared intention to occupy 
and work it for mining purposes under the implied 
license of the United States. Also the parcel of land so 
occupied and appropriated. St. Louis Smelting & Refin
ing Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875. Essential 
to any valid location is the discovery of a valuable 
mineral deposit. Upon making a valid location the 
locator has vested rights in the land which are property 
in the true sense of the word. Cole v. Ralph, 252 U.S. 
286, 295, 40 S.Ct. 321, 325, 64 L.Ed. 567. Once the land 
is patented, the land is private property. See also Loca
tion (Mining law). 
Mining partnership. An association of several owners 
of a mine for co-operation in working the mine. Kahn 
v. Central Smelting Co., 102 U.S. 645, 26 L.Ed. 266; 
Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 
764. Generally, where the parties co-operate in develop
ing a lease for oil and gas, each agreeing to pay his part 
of the expenses and to share in the profits or losses, a 
"mining partnership" exists. Continental Supply Co. v. 
Dickson Oil Co., 194 Okl. 660, 153 P.2d 1017, 1019. A 
special type of partnership different in many respects 
from ordinary or trading partnerships. Meister v. Far
row, 109 Mont. 1, 92 P.2d 753, 757, 758, 760, 76 1. 
Mining rent. Consideration given for a mining lease, 
whether such lease creates a tenancy, conveys a fee, or 
grants an incorporeal right or a mere license. 
Minister. Person acting as agent for another in per
formance of specified duties or orders. A person or
dained according to the usages of some church or associ
ated body of Christians for the preaching of the gospel 
and filling the pastoral office. In England, holder of 
government office; e.g. Prime Minister. 
Foreign minister. An ambassador, minister, or envoy 
from a foreign government. 
996 
International law. An officer appointed by the govern
ment of one nation as a mediator or arbitrator between 
two other nations who are engaged in a controversy, 
with their consent, with a view to effecting an amicable 
adjustment of the dispute. 
A general name given to the diplomatic representa
tives sent by one state to another, including ambassa
dors, envoys, and residents. 
Public law. One of the highest functionaries in the 
organization of civil government, standing next to the 
sovereign or executive head, acting as his immediate 
auxiliary, and being generally charged with the adminis
tration of one of the great bureaus or departments of the 
executive branch of government. In England, otherwise 
called a "cabinet minister," "secretary of state," or 
"secretary of a department". See also Ministry. 
Public minis ter. A general term comprehending all the 
higher classes of diplomatic representatives,-as ambas
sadors, envoys, residents,-but not including the com
mercial representatives, such as consuls. 
Ministerial act. /min�stir(i)y�l/. That which is done 
under the authority of a superior; opposed to judicial. 
That which involves obedience to instructions, but de
mands no special discretion, judgment, or skill. Arrow 
Exp. Forwarding Co. v. Iowa State Commerce Commis
sion, 256 Iowa 1088, 130 N.W.2d 45 1, 453. An act is 
"ministerial" when its performance is positively com
manded and so plainly prescribed as to be free from 
doubt. J.E. Brenneman Co. v. Schramm, D.C.Pa., 473 
F.Supp. 13 16, 1319. Official's duty is "ministerial" 
when it is absolute, certain and imperative, involving 
merely execution of a specific duty arising from fixed 
and designated facts. Long v. Seabrook, 260 S.C. 562, 
197 S.E.2d 659, 662. 
One which a person or board performs under a given 
state of facts in a prescribed manner in obedience to the 
mandate of legal authority without regard to or the 
exercise of his or their own judgment upon the propriety 
of the act being done. State, Dept. of Mental Health v. 
Allen, Ind.App., 427 N.E.2d 2, 4; Gibson v. Winterset 
Community School Dist., 258 Iowa 440, 138 N.W.2d 11 2, 
115. Compare Discretionary acts. See also Mandamus. 
Ministerial duty. One regarding which nothing is left 
to discretion-a simple and definite duty, imposed by 
law, and arising under conditions admitted or proved to 
exist. 
Ministerial function. A function as to which there is 
no occasion to use judgment or discretion. Hood Motor 
Co., Inc. v. Lawrence, La., 320 So.2d 111, 11 5. See also 
Ministerial act. 
Ministerial office. See Office. 
Ministerial officer. One whose duties are purely minis
terial, as distinguished from executive, legislative, or 
judicial functions, requiring obedience to the mandates 
of superiors and not involving the exercise of judgment 
or discretion. 
Ministerial power. See Power.

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997 
Ministerial trust. See Trust. 
Ministers plenipotentiary /min:;)st:;)rz plen:;)p:;)ten(t)
sh:;)riy rshiyehriy /. Ministers plenipotentiary possess 
full powers, and are of much greater distinction than 
simple ministers. These are without any particular 
attribution of rank and character, but by custom are 
now placed immediately below the ambassador, or on a 
level with the envoy extraordinary. 
Ministrant /min:;)str:;)nt/. The party cross-examining a 
witness was so called, under the old system of the 
ecclesiastical courts. 
Ministri regis /m:;)nistray riyj;:)s/. Lat. In old English 
law, ministers of the king, applied to the judges of the 
realm, and to all those who hold ministerial offices in 
the government. 
Ministry. The term as used in England is wider than 
Cabinet and includes all the holders of public office who 
come in and go out with the Prime Minister. In this 
respect it may be contrasted with the Permanent Civil 
Service, whose tenure is independent of public changes. 
The term stands for a department of government for 
which a minister is responsible to Parliament. The first 
English Ministry as now understood was formed after 
the general election of 1696. 
"Ecclesiastical functions," or "duties." Rector, etc., of 
St. George's Church in City of New York v. Morgan, 88 
Misc. 702, 152 N.Y.S. 497, 498. 
Mini-trial. A private, voluntary, informal form of dis
pute resolution in which attorneys for each disputant 
make a brief presentation of his or her best case before 
officials for each side who have authority to settle. 
Usually, a neutral, third-party advisor is present at the 
hearing. Following the attorneys' presentations, the 
principals attempt to settle the dispute. The neutral 
third-party may be asked to render a non-binding advis
ory opinion regarding the outcome of the dispute if it 
were litigated. 
Minor. An infant or person who is under the age of 
legal competence. A term derived from the civil law, 
which described a person under a certain age as less 
than so many years. In most states, a person is no 
longer a minor after reaching the age of 18 (though state 
laws might still prohibit certain acts until reaching a 
greater age; e.g. purchase of liquor). See also Delinquent 
child; Infancy; Juvenile; Legal age; Majority. 
Also, less; of less consideration; lower; a person of 
inferior condition. 
Minor retas /mayn;:)r iytres/. Lat. Minority or infancy. 
Literally, lesser age. 
Minor ante tempus agere non potest in casu proprie
tatis nec etiam convenire; differetur usque retatem; 
sed non cadit breve /mayn:;)r rentiy temp;:)s rej:;)riy non 
powt;:)st in keys(y)uw pr;:)pray;:)teyt;:)s nek eshiy;:)m 
konv;:)nayriy; dif;:)riyt;:)r �skwiy ;:)teyt;:)m; sed non keyd;:)t 
briyviy / . A minor before majority cannot act in a case 
of property, nor even agree; it should be deferred until 
majority; but the writ does not fail. 
MINOR OFFENSES 
Minora regalia /m:;)nor:;) r:;)geyl(i)y;:)/. In English law, 
the lesser prerogatives of the crown, including the rights 
of the revenue. 
Minor deviation rule. Under "minor deviation rule" 
for determining when the deviation from purpose and 
use for which permission to drive insured vehicle is 
granted will preclude coverage under omnibus clause of 
policy, if bailee's use is not gross, substantial, or major 
violation, even though it may have amounted to devia
tion, protection is still afforded to bailee under omnibus 
clause. James v. Aetna Life & Cas., 11 48, 26 Ariz.App. 
137, 546 P.2d 11 46. 
Minor dispute. A "minor dispute" within the meaning 
of the Railway Labor Act is one which relates to the 
interpretation of an existing labor management contract 
and is directed to rights already vested, in contrast to a 
major dispute, which involves the formation of the col
lective bargaining agreement or the substantial altera
tion of an existing agreement and which involves the 
acquisition of rights. Gregory v. Burlington Northern 
R. Co., D.Minn., 638 F.Supp. 538, 54 1. Compare Major 
(or minor) dispute. 
Minor fact. In the law of evidence, a relative, collateral, 
or subordinate fact; a circumstance. Compare Material 
fact. 
Minority. The state or condition of a minor; infancy. 
Opposite of "majorit y." See Minor. Compare Legal age; 
Majority. 
The smaller number of votes of a deliberative assem
bly; opposed to majority (q.v.). 
In context of Constitution's guarantee of equal protec
tion, "minority" does not have merely numerical denota
tion but refers to identifiable and specially disadvan
taged group. Graves v. Barnes, D.C.Tex., 343 F.Supp. 
704, 730. 
Minority opinion. See Opinion. 
Minority stockholder. Those stockholders of a corpora
tion who hold so few shares in relation to the total 
outstanding that they are unable to control the manage
ment of the corporation or to elect directors. 
Minor jurare non potest /mayn;:)r jareriy non powtast/. 
A minor cannot make oath. An infant cannot be sworn 
on a jury. 
Minor minorem custodire non debet, alios enim 
prresumitur male regere qui seipsum regere nescit 
/maynar manoram k;)stadayriy non debat, eyliyows 
iynam praz(y)uwmatar mreliy rejariy kway siyipsam 
rejariy nesat/. A minor ought not to be guardian to a 
minor, for he who knows not how to govern himself is 
presumed to be unfit to govern others. 
Minor non tenetur respondere durante minori retate, 
nisi in causa dotis, propter favorem /maynar non 
taniytar raspondariy d(y)arrentiy manoray ateytiy, naysay 
in dowdas, proptar favoram/. A minor is not bound to 
reply during his minority, except as a matter of favor in 
a cause of dower. 
Minor offenses. See Petty offense.

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MINORS' ESTATES 
Minor qui infra retatem 12 annorum fuerit uteagari 
non potest, nec extra legem poni, quia ante talem 
retatem, non est sub lege aliqua, nec in decenna 
/mayn;)r kwity infr;) ;)teyt;)m d(y)uwod;)s;)m ;)nor;)m 
fyuw;)r;)t :ltbgeray non powt;)st, nek ekstr;) liyj;)m pow
nay, kway;) rentiy teyl;)m ;)teyt;)m, non est S:lb liyjiy 
rel;)kw;) nek in d;)sen;)/. A minor who is under twelve 
years of age cannot be outlawed, nor placed without the 
law, because before such age he is not under any law, 
nor in a decennary. 
Minor septemdecim annis non admittitur fore execu
torem /mayn;)r sept;)mdes;)m ren;)s non ;)dmit;)t;)r foriy 
;)gzeky;)tor;)m/. A person under seventeen years is not 
admitted to be an executor. A rule of ecclesiastical law. 
Minors' estates. Property of those who have not 
reached their legal majority and which must be adminis
tered after their death or during their lives under a 
court appointed fiduciary. 
Mint. The place designated by law where bullion is 
coined into money under authority of the government. 
Mintage /mint;)j/. The charge or commission taken by 
the mint as a consideration for coining into money the 
bullion which is brought to it for that purpose; the same 
as "seigniorage ." 
Also that which is coined or stamped as money; the 
product of the mint. 
Mint-mark. The masters and workers of the English 
mint, in the indentures made with them, agreed "to 
make a privy mark in the money they make, of gold and 
silver, so that they may know which moneys were of 
their own making." After every trial of the pix, having 
proved their moneys to be lawful, they were entitled to 
their quietus under the great seal, and to be discharged 
from all suits or actions. 
Mint-master. One who manages the coinage. 
Minus /mayn;)s/. Lat. In the civil law, less; less than. 
The word had also, in some connections, the sense of 
"not at all." For example, a debt remaining wholly 
unpaid was described as "minus solutum. " 
Minus Latium /mayn;)s leysh;)m/. See Jus Latium. 
Minus solvit, qui tardius solvit /mayn;)s solv;)t kwity 
tardiy;)s solv;)t/ . He does not pay who pays too late. 
Minute. In measures of time or circumference, a minute 
is the sixtieth part of an hour or degree. 
Minutes. Memoranda or notes of a transaction or pro
ceeding. Thus, the record of the proceedings at a meet
ing of directors or shareholders of a company is called 
the "minutes." 
A memorandum of what takes place in court, made by 
authority of the court. See also Record; Transcript. 
Minutes book. A book kept by the clerk or prothono
tary of a court for entering memoranda of its proceed
ings. A record of all actions authorized at corporate 
board of directors' or stockholders' meeting. 
Minutio /m;)n(y)uwsh(iy)ow/. Lat. In the civil law, a 
lessening; diminution or reduction. 
998 
Miranda hearing. A pre-trial proceeding to determine 
whether there has been compliance with the require
ments of the Miranda Rule (q.v.). The outcome will 
decide whether the prosecution will be permitted to 
introduce into evidence statements of the defendant 
made during custodial interrogation. See Miranda Ru le; 
Suppression hearing. 
Miranda Rule /m;)rrend;) ruwll. Prior to any custodial 
interrogation (that is, questioning initiated by law en
forcement officers after a person is taken into custody or 
otherwise deprived of his freedom in any significant 
way) the person must be warned: 1. That he has a 
right to remain silent; 2. That any statement he does 
make may be used as evidence against him; 3. That he 
has a right to the presence of an attorney; 4. That if he 
cannot afford an attorney, one will be appointed for him 
prior to any questioning if he so desires. 
Unless and until these warnings or a waiver of these 
rights are demonstrated at the trial, no evidence ob
tained in the interrogation may be used against the 
accused. Miranda v. Arizona, 384 U.S. 436, 444, 478, 
479, 86 S.Ct. 1602, 1612, 1630, 16 L.Ed.2d 694. 
See also In custody; Interrogation. 
Misa /mayz;)/. In old English law, the mise or issue in a 
writ of right; a compact or agreement; a form of com
promise. 
Misadventure. A mischance or accident; a casualty 
caused by the act of one person inflicting injury upon 
another. Homicide "by misadventure" occurs where a 
person, doing a lawful act, without any intention of 
harm, hurt, unfortunately kills another. 
Misallege /mis;)lej/. To cite falsely as a proof or argu
ment. 
Misapplication. Improper, illegal, wrongful, or corrupt 
use of application of funds, property, etc. See also 
Misappropriation. 
Misappropriation. The unauthorized, improper, or un
lawful use of funds or other property for purpose other 
than that for which intended. Misappropriation of a 
client's funds is any unauthorized use of client's funds 
entrusted to an attorney, including not only stealing but 
also unauthorized temporary use for lawyer's own pur
pose, whether or not he derives any personal gain or 
benefit therefrom. In re Harrison, D.C.App., 461 A.2d 
1034, 1036. Term may also embrace the taking and use 
of another's property for sole purpose of capitalizing 
unfairly on good will and reputation of property owner. 
Pocket Books, Inc. v. Dell Pub. Co., 49 Misc.2d 252, 267 
N.Y.S.2d 269, 272. See Model Rules of Professional Con
duct. See also Embezzlement. 
Misbehavior. III conduct; improper or unlawful behav
ior. Such as to support contempt conviction is conduct 
inappropriate to particular role of actor, be he judge, 
juror, party, witness, counsel or spectator. U. S. v. 
Seale, C.A.Ill., 461 F.2d 345, 366. 
Misbranding. False or misleading labeling. People v. 
Rosenbloom, 11 9 Cal.App. 759, 2 P.2d 228, 231. Such

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999 
practices are prohibited by federal and state statutes; 
e.g. Fair Packaging and Labeling Act. 
Miscarriage I m;;lskrer;;lj I miskrer;;lj I . Poor management 
or administration; mismanagement. 
Miscarriage of justice. Decision or outcome of legal 
proceeding that is prejudicial or inconsistent with sub
stantial rights of party. 
As used in constitutional standard of reversible error, 
"miscarriage of justice" means a reasonable probability 
of more favorable outcome for the defendant. People v. 
Lopez, 251 Cal.App.2d 918, 60 Cal.Rptr. 72, 76. A mis
carriage of justice, warranting reversal, should be de
clared only when the court, after examination of entire 
cause, including the evidence, is of the opinion that it is 
reasonably probable that a result more favorable to 
appealing party would have been reached in absence of 
the error. People v. Bernhardt, 222 C.A.2d 567, 35 
Cal.Rptr. 401, 419. 
Miscarriage of justice from erroneous charge to jury, 
under statute declaring that no judgment shall be set 
aside or new trial granted on basis of error which does 
not result in such miscarriage, results only when an 
erroneous charge is reasonably calculated to confuse or 
mislead. Marley v. Saunders, Fla., 249 So.2d 30, 35. 
Miscegenation I m;;lsej;;lneysh;;lnl mis;;lj;;l 0 I . Mixture of 
races. Term formerly applied to marriage between per
sons of different races. Statutes prohibiting marriage 
between persons of different races have been held to be 
invalid as contrary to equal protection clause of Consti
tution. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 
L.Ed.2d 1010. 
Mischarge. An erroneous charge; a charge, given by a 
court to a jury, which involves errors for which the 
judgment may be reversed. 
Mischief. In legislative parlance, the word is sometimes 
used to signify the evil or danger which a statute is 
intended to cure or avoid. 
In the phrase "malicious mischief," (q.v.) it imports a 
wanton or reckless injury to persons or property. 
A person is guilty of criminal mischief if he: (a) 
damages tangible property of another purposely, reck
lessly, or by negligence in the employment of fire, explo
sives, or other dangerous means, or (b) purposely or 
recklessly tampers with tangible property of another so 
as to endanger person or property; or (c) purposely or 
recklessly causes another to suffer pecuniary loss by 
deception or threat. Model Penal Code, § 220.3. 
Misconduct. A transgression of some established and 
definite rule of action, a forbidden act, a dereliction 
from duty, unlawful behavior, willful in character, im
proper or wrong behavior; its synonyms are misdemean
or, misdeed, misbehavior, delinquency, impropriety, mis
management, offense, but not negligence or carelessness. 
Term "misconduct" when applied to act of attorney, 
implies dishonest act or attempt to persuade court or 
jury by use of deceptive or reprehensible methods. Peo
ple v. Sigal, 249 C.A.2d 299, 57 Cal.Rptr. 54 1, 549. 
Misconduct, which renders discharged employee ineligi-
MISE 
ble for unemployment compensation, occurs when con
duct of employee evinces willful or wanton disregard of 
employer's interest, as in deliberate violations, or dis
regard of standards of behavior which employer has 
right to expect of his employees, or in carelessness or 
negligence of such degree or recurrence as to manifest 
wrongful intent or evil design. Wilson v. Brown, La. 
App., 147 So.2d 27, 29. See also Wanton misconduct. 
Misconduct in office. Any unlawful behavior by a 
public officer in relation to the duties of his office, 
willful in character. Term embraces acts which the 
office holder had no right to perform, acts performed 
improperly, and failure to act in the face of an affirma
tive duty to act. See also Malfeasance; Misfeasance. 
Miscontinuance. In practice, an improper continuance; 
want of proper form in a continuance; the same with 
"discontinuance." 
Miscreant ImiskriY;;lnt/. In old English law, an apos
tate; an unbeliever; one who totally renounced Chris
tianity. 4 Bl.Comm. 44. 
Misdate. A false or erroneous date affixed to a paper or 
document. 
Misdelivery. Delivery of mail, freight, goods, or the 
like, to person other than authorized or specified recipi
ent. The delivery of property by a carrier or warehouse
man to a person not authorized by the owner or person 
to whom the carrier or warehouseman is bound by his 
contract to deliver it. In commercial law, refers to a 
bailee surrendering goods to someone other than the 
person entitled to them under a document covering the 
goods. 
Misdemeanant Imisd;;lmiyn;;lnt/. A person guilty of a 
misdemeanor; one sentenced to punishment upon con
viction of a misdemeanor. 
Misdemeanor Imisd;;lmiyn;;lr/. Offenses lower than felo
nies and generally those punishable by fine, penalty, 
forfeiture or imprisonment otherwise than in penitentia
ry. Under federal law, and most state laws, any offense 
other than a felony is classified as a misdemeanor. 18 
U.S.C.A. §§ 1, 19, 3401. Certain states also have vari
ous classes of misdemeanors (e.g. Class A, B, etc.). See 
Fed.R.Crim.P. 58 with respect to "Procedure for Misde
meanors and · Other Petty Offenses". See also Degrees 
of crime; Infraction; Petty offense. 
Misdescription. An error or falsity in the description of 
the subject-matter of a contract which deceives one of 
the parties to his injury, or is misleading in a material 
or substantial point. In commercial law, refers to a 
bailee inaccurately identifying, in a document of title, 
the goods received from the bailor. See also Misrepre
sentation. 
Misdirection. An error made by a judge in instructing 
the jury upon the trial of a cause. 
Mise Imayz/miyz/. In common law pleading, the issue 
in a writ of right. When the tenant in a writ of right

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MISE 
pleads that his title is better than the demandant's, he is 
said to join the mise on the mere right. 
Also expenses; costs; disbursements in an action. 
Mise-money. In old English law, money paid by way of 
contract or composition to purchase any liberty, etc. 
Miserabile depositum Imiz�reyb�liy d�p6z�t�m/. Lat. 
In the civil law, the name of an involuntary deposit, 
made under pressing necessity; as, for instance, ship
wreck, fire, or other inevitable calamity. 
Misera est servitus, ubi jus est vagum aut incertum 
Imiz�r� est s;Jrv�t�s yuwbay j;JS est veyg�m ad �ns;Jrt�m/. 
It is a wretched state of slavery which subsists where 
the law is vague or uncertain. 
Miserere Imiz�ririy/. The name and first word of one of 
the penitential psalms, being that which was commonly 
used to be given by the ordinary to such condemned 
malefactors as were allowed the benefit of clergy; 
whence it is also called the "psalm of mercy." 
Misericordia Imiz�r�k6rd(i)y�/. Lat. Mercy; a fine or 
amerciament; an arbitrary or discretionary amerce
ment. 
Misericordia communis Imiz�r�k6rd(i)y� k�myuwn�s/. 
In old English law, a fine set on a whole county or 
hundred. 
Misfeasance Imisfiyz�ns/. The improper performance 
of some act which a person may lawfully do. "Nonf ea
sance" means the omission· of an act which a person 
ought to do; "misfeasance" is the improper doing of an 
act which a person might lawfully do; and "malfea
sance" is the doing of an act which a person ought not to 
do at all. CO,mpare Malfeasance. 
Misfeazance. See Misfeasance. 
Misfortune. An adverse event, calamity, or evil fortune, 
arising by accident (or without the will or concurrence 
of him who suffers from it), and not to be foreseen or 
guarded against by care or prudence. In its application 
to the law of homicide, this term always involves the 
further idea that the person causing the death is not at 
the time engaged in any unlawful act. See also Acci
dent. 
Misjoinder. See Joinder. 
Miskenning ImiskeniIJ/. In Saxon and old English law, 
an unjust or irregular summoning to court; to speak 
unsteadily in court; to vary in one's plea. 
Mislaid property. See Property. 
Mislay. To deposit in a place not afterwards recollected; 
to lose anything by forgetfulness of the place where it 
was laid. 
Misleading. Delusive; calculated to lead astray or to 
lead into error. A Judge's instructions which are of 
such a nature as to be misunderstood by the jury, or to 
give them a wrong impression, are said to be "mislead
ing." See also Deception; Deceit; Misrepresentation. 
Misnomer. Mistake in name; giving incorrect name to 
person in accusation, indictment, pleading, deed or other 
1000 
instrument. Under rules practice in some states, such 
is ground for dismissal by motion. In most states, 
however, as well as in the federal courts, such misnomer 
can be corrected by amendment of the pleadings. 
When a misnomer occurs in a deed, the normal proce
dure is to prepare and record a correction deed. Com
monly, a quit claim deed is used for this purpose. 
Mispleading. Pleading incorrectly, or omitting any
thing in pleading which is essential to the support or 
defense of an action, is so called; as in the case of a 
plaintiff not merely stating his title in a defective man
ner, but setting forth a title which is essentially defec
tive in itself; or if, to an action of debt, the defendant 
pleads "not guilty" instead of nil debet. Rules of Civil 
Procedure (in effect in the federal and many state 
courts) permit liberal amendment of incorrect or defi
cient pleadings. See Fed.R. Civil P. 15. 
Misprision. A word used to describe an offense which 
does not possess a specific name. United States v. 
Perlstein, C.C.A.N.J., 126 F.2d 789, 798. But more par
ticularly and properly the term denotes either: (1) a 
contempt against the sovereign, the government, or the 
courts of justice, including not only contempts of court, 
properly so called, but also all forms of seditious or 
disloyal conduct and leze-majesty; (2) maladministration 
of public office; neglect or improper performance of 
official duty, including peculation of public funds; (3) 
neglect of light account made of a crime, that is, failure 
in the duty of a citizen to endeavor to prevent the 
commission of a crime, or, having knowledge of its 
commission, to fail to reveal it to the proper authorities. 
Concealment of crime. See Misprision of felony. 
Negative misprision. The concealment of something 
which ought to be revealed; that is, misprision in the 
third of the specific meanings given above. 
Positive misprision. The commission of something 
which ought not to be done; that is, misprision in the 
first and second of the specific meanings given above. 
Misprision of felony. The offense of concealing a felony 
committed by another, but without such previous con
cert with or subsequent assistance to the felon as would 
make the party concealing an accessory before or after 
the fact. United States v. Perlstein, C.C.A.N.J., 126 
F.2d 789, 798. Elements of the crime are that the 
principal committed and completed the felony alleged, 
that the defendant had full knowledge of that fact, that 
the defendant failed to notify the authorities, and that 
defendant took an affirmative step to conceal the crime. 
U.S. v. Ciambrone, C.A.Nev., 750 F.2d 1416, 1417. 
Whoever, having knowledge of the actual commission 
of a felony cognizable by a court of the United States, 
conceals and does not as soon as possible make known 
the same to some judge or other person in civil or 
military authority under the United States, is guilty of 
the federal crime of misprision of felony. 18 U.S.C.A. 
§ 4. 
See also Obstructing justice.

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1001 
Misprision of treason. The bare knowledge and con
cealment of an act of treason or treasonable plot by 
failing to disclose it to the appropriate officials; that is, 
without any assent or participation therein, for if the 
latter elements be present the party becomes a princi
pal. 18 V.S.C.A. § 2382. 
Misreading. Reading a deed or other instrument to an 
illiterate or blind man (who is a party to it) in a false or 
deceitful manner, so that he conceives a wrong idea of 
its tenor or contents. 
Misrecital /misr;;lsayt;;ll/. The erroneous or incorrect 
recital of a matter of fact, either in an agreement, deed, 
or pleading. 
Misrepresentation. Any manifestation by words or oth
er conduct by one person to another that, under the 
circumstances, amounts to an assertion not in accord
ance with the facts. An untrue statement of fact. An 
incorrect or false representation. That which, if accept
ed, leads the mind to an apprehension of a condition 
other and different from that which exists. Colloquially 
it is understood to mean a statement made to deceive or 
mislead. 
As amounting to actual legal fraud consists of materi
al representation of presently existing or past fact, made 
with knowledge of its falsity and with intention that 
other party rely thereon, resulting in reliance by that 
party to his detriment. Jewish Center of Sussex County 
v. Whale, 86 N.J. 619, 432 A.2d 52 1, 524. 
In a limited sense, an intentional false statement 
respecting a matter of fact, made by one of the parties to 
a contract, which is material to the contract and influ
ential in producing it. A "misrepresentati on," which 
justifies the rescission of a contract, is a false statement 
of a substantive fact, or any conduct which leads to a 
belief of a substantive fact material to proper under
standing of the matter in hand, made with intent to 
deceive or mislead. 
See also Deceit; Deception; False; Fraud; Material fact; 
Reliance. 
Insurance law. A statement of something as a fact 
which is untrue and material to the risk, and which 
assured states knowing it to be untrue and with intent 
to deceive, or which insured states positively as true, not 
knowing it to be true, and which has a tendency to 
mislead. One that would influence a prudent insurer in 
determining whether or not to accept the risk, or in 
fixing the amount of the premium in the event of such 
acceptance. See also Material fact. 
Missilia /m;;lsayl(i)y;;l/. In Roman law, gifts or liberali
ties, which the prretors and consuls were in the habit of 
throwing among the people. 
Missing ship. In maritime law, a vessel is so called 
when, computed from her known day of sailing, the time 
that has elapsed exceeds the average duration of similar 
voyages at the same season of the year. 
Missions. In church parlance, the establishment of 
churches and schools and relief depots through which 
MISTAKE 
are taught the principles of Christianity, the afflicted 
cared for, and the needy supplied. 
Missura /mis(y)ur;;l/. The ceremonies used in a Roman 
Catholic church to recommend and dismiss a dying 
person. 
Mistake. Some unintentional act, omission, or error 
arising from ignorance, surprise, imposition, or mis
placed confidence. A state of mind not in accord with 
reality. A mistake exists when a person, under some 
erroneous conviction of law or fact, does, or omits to do, 
some act which, but for the erroneous conviction, he 
would not have done or omitted. It may arise either 
from unconsciousness, ignorance, forgetfulness, imposi
tion, or misplaced confidence. Salazar v. Steelman, 22 
Cal.App.2d 402, 71 P.2d 79, 82. See also Error; Igno
rance. 
Mistake of fact is a mistake not caused by the neglect 
of a legal duty on the part of the person making the 
mistake, and consisting in (1) an unconscious ignorance 
or forgetfulness of a fact, past or present, material to the 
contract; or (2) belief in the present existence of a thing 
material to the contract which does not exist, or in the 
past existence of such a thing which has not existed. 
A mistake of law happens when a party, having full 
knowledge of the facts, comes to an erroneous conclusion 
as to their legal effect. It is a mistaken opinion or 
inf erence, arising from an imperfect or incorrect exer
cise of the judgment, upon facts, Page v. Provines, 179 
Okl. 391, 66 P.2d 7, 10; and necessarily presupposes that 
the person forming it is in full possession of the facts. 
The facts precede the law, and the true and false opinion 
alike imply an acquaintance with them. The one is the 
result of a correct application of legal principles, which 
every man is presumed to know, and is called "law;" the 
other, the result of a faulty application, and is called a 
"mistake of law." 
In criminal law, ignorance or mistake as to a matter 
of fact or law · is a defense if: (a) the ignorance or 
mistake negatives the purpose, knowledge, belief, reck
lessness or negligence required to establish a material 
element of the offense; or (b) the law provides that the 
state of mind established by such ignorance or mistake 
constitutes a defense. Model Penal Code, § 2.04(1). 
Mutual mistake is where the parties have a common 
intention, but it is induced by a common or mutual 
mistake. "Mutual" as used in the expression mutual 
mistake of fact expresses a thought of reciprocity and 
distinguishes it from a mistake which is a common 
mistake of both parties. There is something of the 
thought of a common mistake because it must affect 
both parties. Mistake of fact as ground for relief may 
be neither "mutual" nor common in the strict sense 
because it may be wholly the mistake of one of the 
parties, the other being wholly ignorant both of the fact 
upon the faith of which the other has mistakenly acted 
and that the other has acted upon such an under
standing of the fact situation.

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MISTAKE 
Unilateral mistake. A mistake by only one party to an 
agreement and generally not a basis for relief by re
scission or reformation. 
Mister. A title of courtesy. A trade, craft, occupation, 
employment, office. 
Mistery. A trade or calling. 
Mistrial. An erroneous, invalid, or nugatory trial. A 
trial of an action which cannot stand in law because of 
want of jurisdiction, or a wrong drawing of jurors, or 
disregard of some other fundamental requisite before or 
during trial. Trial which has been terminated prior to 
its normal conclusion. A device used to halt trial pro
ceedings when error is so prejudicial and fundamental 
that expenditure of further time and expense would be 
wasteful if not futile. Ferguson v. State, Fla., 417 So.2d 
639, 641. The judge may declare a mistrial because of 
some extraordinary event (e.g. death of juror, or attor
ney), for prejudicial error that cannot be corrected at 
trial, or because of a deadlocked jury. 
"Mistrial" is equivalent to no trial and is a nugatory 
trial while "new trial" recognizes a completed trial 
which for sufficient reasons has been set aside so that 
the issues may be tried de novo. People v. Jamerson, 
196 Colo. 63, 580 P.2d 805, 806. 
Misuse. As defense in products liability action, requires 
use in a manner neither intended nor reasonably fore
seeable by manufacturer. Smith v. Sturm, Ruger & Co., 
Inc., 39 Wash.App. 740, 695 P.2d 600, 604. 
Misuser Imisyuwz;}r/. An unlawful use of a right. 
Abuse of an office or franchise. 2 Bl.Comm. 153. 
Mitigating circumstances. Such as do not constitute a 
justification or excuse for the offense in question, but 
which, in fairness and mercy, may be considered as 
extenuating or reducing the degree of moral CUlpability. 
For example, mitigating circumstances which will re
duce degree of homicide to manslaughter are the com
mission of the killing in a sudden heat of passion caused 
by adequate legal provocation. People v. Morrin, 31 
Mich.App. 301, 187 N.W.2d 434, 438. 
Those that affect basis for award of exemplary dam
ages, or reduce actual damages by showing, not that 
they were never suffered, but that they have been par
tially extinguished. 
In actions for libel and slander, refer to circumstances 
bearing on defendant's liability for exemplary damages 
by reducing moral culpability, or on liability for actual 
damages by showing partial extinguishment thereof. 
The "mitigating circumstances" which the statute al
lows defendant in libel action to prove are those which 
tend to show that defendant in speaking the slanderous 
words acted in good faith, with honesty of purpose, and 
not maliciously. Roemer v. Retail Credit Co., 44 C.A.3d 
926, 11 9 Cal.Rptr. 82, 91. 
See also Com parative negligence; Extenuating circum
stances; Extraordinary circumstances. 
Mitigation. To make less severe. Alleviation, reduc
tion, abatement or diminution of a penalty or punish
ment imposed by law. 
1002 
Mitigation of damages. Doctrine of "mitigation of dam
ages," sometimes called doctrine of avoidable conse
quences, imposes on party injured by breach of contract 
or tort duty to exercise reasonable diligence and ordi
nary care in attempting to minimize his damages, or 
avoid aggravating the injury, after breach or injury has 
been inflicted and care and diligence required of him is 
the same as that which would be used by man of 
ordinary prudence under like circumstances. Darnell v. 
Taylor, La.App., 236 So.2d 57, 61. Mitigation of dam
ages is an affirmative defense and applies when plaintiff 
fails to take reasonable actions that would tend to 
mitigate his injuries. Mott v. Persichetti, Colo.App., 534 
P.2d 823, 825. See Restatement, Contracts § 336(1); 
U.C.C. § 2-60 3. See also Avoidable consequences doc
trine. 
Mitigation of punishment. A judge may reduce or 
order a lesser sentence in consideration of such factors 
as the defendant's past good behavior, his family situa
tion, his cooperation with the police and kindred factors. 
Mitior sensus Imishiy;}r sEms;}s/. Lat. The more favor
able acceptation. 
Mitius imperanti melius paretur Imishiy;}s imp;}rrentay 
miyl(i)y;}s p;}riyt;}r/. The more mildly one commands, 
the better is he obeyed. 
Mitter. L. Fr. To put, to send, or to pass; as, mitter 
I 'estate, to pass the estate; mitter Ie droit, to pass a 
right. These words are used to distinguish different 
kinds of releases. 
Mitter avant Imit;}r ;}vrentl. L. Fr. In old practice, to 
put before; to present before a court; to produce in 
court. 
Mittimus Imit;}m;}s/. The name of a precept in writing, 
issuing from a court or magistrate, directed to the sher
iff or other officer, commanding him to convey to the 
prison the person named therein, and to the jailer, 
commanding him to receive and safely keep such person 
until he shall be delivered by due course of law. State 
v. Lenihan, 151 Conn. 552, 200 A.2d 476, 478. Tran
script of minutes of conviction and sentence duly certi
fied by court clerk. United States ex reI. Chasteen v. 
Denemark, C.c.A.Ill., 138 F.2d 289, 291. 
Old English law. A writ enclosing a record sent to be 
tried in a county palatine; it derives its name from the 
Latin word mittimus, "we send." It is the jury process 
of these counties, and commands the proper officer of 
the county palatine to command the sheriff to summon 
the jury for the trial of the cause, and . to return the 
record, etc. 
Mixed. Formed by admixture or commingling; partak
ing of the nature, character, or legal attributes of two or 
more distinct kinds or classes. 
As to mixed Action; Blood relations (Mixed blood); 
Contract; Government; Jury; Larceny; Marriage; Nui
sance; Policy; Presumption; Property; Tithes; and War, 
see those titles.

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1003 
Mixed insurance company. One which has, at least in 
part, the nature of both stock and mutual companies, 
and in which a certain portion of the profits is divided 
among the stockholders and distribution of other funds 
is made among the insured. Ohio Farmers Indemnity 
Co. v. Commissioner of Internal Revenue, C.C.A.O hio, 
108 F.2d 665, 667; Pink v. Town Taxi Co., 138 Me. 44, 21 
A.2d 656, 658, 659. 
Mixed laws. A name sometimes given to those which 
concern both persons and property. 
Mixed question of law and fact. A question depending 
for solution on questions of both law and fact, but is 
really a question of either law or fact to be decided by 
either judge or jury. 
Mixed questions. This phrase may mean either those 
which arise from the conflict of foreign and domestic 
laws, or questions arising on a trial involving both law 
and fact. 
Mixed subjects of property. Such as fall within the 
definition of things real, but which are attended, never
theless, with some of the legal qualities of things person
al, as emblements, fixtures, and shares in public under
takings, connected with land. Besides these, there are 
others which, though things personal in point of defini
tion, are, in respect of some of their legal qualities, of 
the nature of things real; such are animals ferre naturre, 
charters and deeds, court rolls, and other evidences of 
the land, together with the chests in which they are 
contained, ancient family pictures, ornaments, tomb
stones, coats of armor, with pennons and other ensigns, 
and especially heirlooms. 
Mixtion /miks(h)ch;m/. The mixture or confusion of 
goods or chattels belonging severally to different owners, 
in such a way that they can no longer be separated or 
distinguished; as where two measures of wine belonging 
to different persons are poured together into the same 
cask. See also Co mmin gle; Fungibles. 
Mixtum imperium /mikst�m impiriy�m/. Lat. In old 
English law, mixed authority; a kind of civil power. A 
term applied by Lord Hale to the "power" of certain 
subordinate civil magistrates as distinct from "jurisdic
tion." 
M'Naghten Rule. The test applied in a number of 
the states for the defense of insanity. This test, as 
prescribed by statute or case law, has a number of 
variations in the respective states applying such. Under 
M'Naghten test or rule, an accused is not criminally 
responsible if, at the time of committing the act, he was 
laboring under such a defect of reason from disease of 
the mind as not to know the nature and quality of the 
act he was doing, or if he did know it that he did not 
know he was doing what was wrong. M'Naghten's Case, 
8 Eng.Rep. 718 (1843). State v. Johnson, 383 A.2d 1012, 
1022. 
The standard under the "M' Naghten insanity" test to 
determine whether a person is sane is did the defendant 
have sufficient mental capacity to know and understand 
what he was doing, and did he know and understand 
MODERAMEN INCULPATJE TUTELJE 
that it was wrong and a violation of the rights of 
another. To be "sane" and thus responsible to the law 
for the act committed, the defendant must be able to 
both know and understand the nature and quality of his 
act and to distinguish between right and wrong at the 
time of the commission of the offense. People v. Crosier, 
41 Cal.App.3d 712 , 11 6 Cal.Rptr. 467, 47l. 
See also Insanity, supra, regarding other tests used by 
courts in determining criminal responsibility. 
Mob. An assemblage of many people, acting in a violent 
and disorderly manner, defying the law, and commit
ting, or threatening to commit, depredations upon prop
erty or violence to persons. 
The word, in legal use, is practically synonymous with 
"riot," but the latter is the more correct term. 
Mobilia /mowbiliy�/. Lat. Movables; movable things; 
otherwise called "res mobiles." 
Mobilia non habent situm /mowbiliy� non heyb�nt 
sayt�m/. Movables have no situs or local habitation. 
Mobilia sequuntur personam /mowbiliy� s�kw�nt�r 
p�rs6wn�m/. Movables follow the [law of the] person. 
Mock. To deride, to laugh at, to ridicule, to treat with 
scorn and contempt. 
Modal legacy. See Legacy. 
Mode. The manner in which a thing is done; as the 
mode of proceeding, the mode of process. 
Model. A preliminary pattern or representation of 
something to be made or something already made. A 
facsimile of something invented, made on a reduced 
scale, in compliance with the patent laws. A replication 
of something made to scale. Style or design of product 
or item. See also Sample. 
Model act. Statute proposed by the National Conference 
of Commissioners of Uniform State Laws for adoption by 
state legislatures, e.g. Uniform Commercial Code; Model 
Penal Code; Model Probate Code. Frequently, the state 
adopting the model act will modify it to some extent to 
meet its own needs or may adopt only a portion of such. 
Model jury instructions. See Jury instructions. 
Model Rules of Professional Conduct. Rules adopted 
by the American Bar Association in 1983, with technical 
amendments adopted in 1987, which provide comprehen
sive treatment of professional conduct in the form of 
rules as to what an attorney may and may not do in 
dealing with the court, opposing counsel, his/her client 
and third persons. These Rules, which replace the 
former ABA Code of Professional Responsibility, have 
been adopted by many states (usually by the state su
preme court) to govern conduct of attorneys admitted to 
practice in the state. 
Moderamen inculpatre tutelre /mod�reym�n ink�lpeytiy 
tyuwtiyliy/. Lat. In Roman law, the regulation of 
justifiable defense. A term used to express that degree 
of force in defense of the person or property which a 
person might safely use, although it should occasion the 
death of the aggre ssor.

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MODERATA MISERICORDIA 
Moderata misericordia Imod;m�yt;) miz;)r;)kord(i)y;)I . A 
writ founded on Magna Charta, which lies for him who 
is amerced in a court, not of record, for any transgres
sion beyond the quality or quantity of the offense. It is 
addressed to the lord of the court, or his bailiff, com
manding him to take a moderate amerciament of the 
parties. 
Moderate castigavit Imod;)reytiy krest;)geyv;)t/. Lat. 
In old pleading, be moderately chastised. The name of a 
plea in trespass which justifies an alleged battery on the 
ground that it consisted in a moderate chastisement of 
the plaintiff by the defendant, which, from their rela
tions, the latter had a legal right to inflict. 
Moderator. A chairman or president of an assembly. A 
person appointed to preside at a popular meeting. The 
presiding officer of town meetings in New England is so 
called. 
Modiatio Imowdiyeysh(iy)ow/. In old English law, a 
certain duty paid for every tierce of wine. 
Modica circumstantia facti jus mutat Imowd;)k;) s�rk;)
mstrensh(iy);)m frektay j5s myuwt;)t/. A small circum
stance attending an act may change the law. 
Modification. A change; an alteration or amendment 
which introduces new elements into the details, or can
cels some of them, but leaves the general purpose and 
effect of the subject-matter intact. See Amendment. 
Modify. To alter; to change in incidental or subordinate 
features; enlarge, extend; amend; limit, reduce. Such 
alteration or change may be characterized, in quantita
tive sense, as either an increase or decrease. Johnson v. 
Three Bays Properties No. 2, Inc., Fla.App., 159 So.2d 
924, 926. See Modification. 
Modius I mowd(i)y;)s I . Lat. A measure. Specifically, a 
Roman dry measure having a capacity of about 550 
cubic inches; but in medieval English law used as an 
approximate translation of the word "bushel." 
Modius terrre vel agri Imowd(i)y;) tehriy vel regray/. In 
old English law, a quantity of ground containing in 
length and breadth 100 feet. 
Modo et forma Imowdow et form;)/. Lat. In manner 
and form. Words used in the old Latin forms of plead
ings by way of traverse, and literally translated in the 
modern precedents, importing that the party traversing 
denies the allegation of the other party, not only in its 
general effect, but in the exact manner and form in 
which it is made. 
Modus Imowd;)s/. Lat. In Civil law, manner; means; 
way. 
Criminal pleading. The modus of an indictment is that 
part of it which contains the narrative of the commis
sion of the crime; the statement of the mode or manner 
in which the offense was committed. 
Ecclesiastical law. A peculiar manner of tithing, grow
ing out of custom. 
Old conveyancing. Mode; manner; the arrangement or 
expression of the terms of a contract or conveyance. 
1004 
Also a consideration; the consideration of a convey
ance, technically expressed by the word "ut". 
A qualification, involving the idea of variance or de
parture from some general rule or form, either by way 
of restriction or enlargement, according to the circum
stances of a particular case, the will of a donor, the 
particular agreement of parties, and the like. 
Rank modus. One that is too large. Rankness is a 
mere rule of evidence, drawn from the improbability of 
the fact, rather than a rule of law. 
Modus decimandi Imowd;)s des;)mrenday/. In Ecclesias
tical law, a manner of tithing; a partial exemption from 
tithes, or a pecuniary composition prescribed· by imme
morial usage, and of reasonable amount; for it will be 
invalid as a rank modus if greater than the value of the 
tithes in the time of Richard I. 
Modus de non decimando Imowd;)s diy non des;)
mrendow/ . In Ecclesiastical law, a custom or prescrip
tion of entire exemption from the payment of tithes; 
this is not valid, unless in the case of abbey-lands. 
Modus de non decimando non valet Imowd;)s diy non 
des;)mrendow non vrel;)t/. A modus (prescription) not to 
pay tithes is void. 
Modus et conventio vincunt legem Imowd;)s et 
bnvensh(iy)ow viIJk;)nt liyj;)m/. Custom and agreement 
overrule law. This maxim forms one of the first princi
ples relative to the law of contracts. The exceptions to 
the rule here laid down are in cases against public 
policy, morality, etc. 
Modus habilis Imowd;)s hreb;)l;)s/. A valid manner. 
Modus legem dat donationi Imowd;)s liyj;)m dret 
d;)neyshiyownay I. Custom gives law to the gift. 
Modus operandi I mowd;)s op;)rrenday I. Method of oper
ating or doing things (M.O.). Term used by police and 
criminal investigators to describe the particular method 
of a criminal's activity. It refers to pattern of criminal 
behavior so distinct that separate crimes or wrongful 
conduct are recognized as work of same person. People 
v. Kimbrough, 1 Dist., 138 Ill.App.3d 481, 93 Ill.Dec. 82, 
485 N .E.2d 1292, 1297. 
Modus tenendi I mowd;)s t;)nenday I. The manner of 
holding; i.e., the different species of tenures by which 
estates are held. 
Modus transferrendi Imowd;)s trrensf;)renday/. The 
manner of transferring. 
Modus vacandi Imowd;)s v;)krenday/. The manner of 
vacating. How and why an estate has been relinquished 
or surrendered by a vassal to his lord might well be 
referred to by this phrase. 
Moeble Imyuwb;)l/. L. Fr. Movable. Biens moebles, 
movable goods. 
Moerda Im5rd;)/. The secret killing of another; murder. 
Mohatra. In French law, a transaction covering a fraud
ulent device to evade the laws against usury. It takes 
place where an individual buys merchandise from an-

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1005 
other on a credit at a high price, to sell it immediately 
to the first seller, or to a third person who acts as his 
agent, at a much less price for cash. 
Moiety Imoy;}diy/. The half of anything. Joint tenants 
are said to hold by moieties. See also Commu nity proper
ty. Compare Entirety. 
Moiety acts. A name sometimes applied to penal and 
criminal statutes which provide that half the penalty or 
fine shall inure to the benefit of the informer. 
Molliter manus imposuit Imol;}t;}r mren;}s impoz(h)
yuw;}t/. Lat. He gently laid hands upon. Formal 
words in the old Latin pleas in actions of trespass and 
assault where a defendant justified laying hands upon 
the plaintiff, as where it was done to keep the peace, etc. 
The phrase is literally translated in the modern prece
dents, and the original is retained as the name of the 
plea in such cases. 
Monarchial. Of or pertaining to a monarchy or govern
ment by royalty. See Monarchy. 
Monarchy Imon;}rkiy/. A government in which the 
supreme power is vested in a single person. Where a 
monarch is invested with absolute power, the monarchy 
is termed " despotic;" where the supreme power is virtu
ally in the laws, though the majesty of government and 
the administration are vested in a single person, it is a 
"limite d" or "constitutional" monarchy. It is hereditary 
where the regal power descends immediately from the 
possessor to the next heir by blood, as in Englan d; or 
elective, as was formerly the case in Poland. 
Moneta Im;}niyt;}/. Lat. Money (q.v.). 
Moneta est justum medium et mensura rerum com
mutabilium, nam per medium monetre fit omnium 
rerum conveniens et justa restimatio Im;}niyt;} est 
j�st;}m miydiy;}m et mens(y)ur;} rir;}m kom
yuwt;}bi1(i)y;}m, nrem p�r miydiy;}m m;}niytiy fit om
niy;}m rir;}m k;}nviyn(i)y;}nz et j�st;} est;}meysh(iy)ow/. 
Money is the just medium and measure of commutable 
things, for by the medium of money a convenient and 
just estimation of all things is made. 
Monetagium Imon;}teyj(iy);}m/. Mintage, or the right of 
coining money. Hence, anciently, a tribute payable to a 
lord who had the prerogative of coining money, by his 
tenants, in consideration of his refraining from changing 
the coinage. 
Monetandi jus comprehenditur in regalibus qure 
nunquam a regio sceptro abdicantur Imon;}trenday 
j�s kompr;}hend;}t;}r in r;}geyl;}b;}s kwiy n�lJkwrem' ey 
riyj(iy)ow septrow rebd;}krent;}r/. The right of coining 
money is comprehended among those royal prerogatives 
which are never relinquished by the royal scepter. 
Monetary. The usual meaning is "pertaining to coinage 
or currency or having to do with money", but it has been 
held to include personal property. In re Kipp's Will, 
Sur., 37 N.Y.S.2d 54 1, 543. 
Monetary bequest. A transfer by will of cash. It is 
often designated as a pecuniary bequest. 
MONEY JUDGMENT 
Money. In usual and ordinary acceptation it means 
coins and paper currency used as circulating medium of 
exchange, and does not embrace notes, bonds, evidences 
of debt, or other personal or real estate. Lane v. Railey, 
280 Ky. 319, 133 S.W.2d 74, 79, 81. 
A medium of exchange authorized or adopted by a 
domestic or foreign government as a part of its currency. 
U.C.C. § 1-201(24). 
See also Currency; Current money; Flat money; Legal 
tender; Near money; Scrip; Wampum. 
Public money. Revenue received from federal, state, 
and local governments from taxes, fees, fines, etc. See 
Revenue. 
Money-bill. An act by which revenue is directed to be 
raised, for any purpose or in any shape whatsoever, 
either for governmental purposes, and collected from the 
whole people generally, or for the benefit of a particular 
district, and collected in that district, or for making 
appropriations. All federal revenue bills must arise in 
the House of Representatives, but the Senate may pro
pose or concur with amendments as on other bills. Art. 
I, Sec. 7, U.S.C onst. 
Money changers. A money changer is one whose occu
pation is the exchanging of kinds or denominations of 
currency, and the common meaning of the term per
tained to those persons who, in early history, engaged in 
the business of foreign exchange and it includes the 
business of a banker and buying and selling of uncur
rent funds and the exchanging of one kind of money for 
another. Arnold v. City of Chicago, 387 Ill. 532, 56 
N.E.2 d 795, 799. Such functions are today handled by 
the international departments of banks. 
Money claims. In English practice, under the Judica
ture Act of 1875, claims for the price of goods sold, for 
money lent, for arrears of rent, etc., and other claims 
where money is directly payable on a contract express or 
implied, as opposed to the cases where money is claimed 
by way of damages for some independent wrong, wheth
er by breach of contract or otherwise. These "money 
claims" correspond very nearly to the "money counts" 
or "common counts" formerly in use. 
Money demand. A claim for a fixed and liquidated 
amount of money, or for a sum which can be ascertained 
by mere calculation; in this sense, distinguished from a 
claim which must be passed upon and liquidated by a 
jury, called "damages ." 
Moneyed corporation. See Corporation. 
Money had and received. In common law pleading, 
the technical designation of a form of declaration in 
assumpsit, wherein the plaintiff declares that the defen
dant had and received certain money, etc. 
Gist of action for "money had and received" is that 
defendant has received money which, in equity and good 
conscience, should have been paid to plaintiff and under 
such circumstances that he ought to pay it over. 
Money judgment. A final order, decree or judgment of 
a court by which a defendant is required to pay a sum of

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MONEY JUDGMENT 
money in contrast to a decree or judgment of equity in 
which the court orders some other type of relief; e.g. 
injunction or specific performance. See also Judgment. 
For enforcement of money judgments, see Execution. 
Money land. A phrase descriptive of money which is 
held upon a trust to convert it into land. 
Money laundering. See Laundering. 
Money lent. In common law pleading, the technical 
name of a declaration in an action of assumpsit for 
which the defendant promised to pay the plaintiff for 
money lent. 
Money made. The return made by a sheriff to a writ of 
execution, signifying that he has collected the sum of 
money required by the writ. 
Money market. The financial market for dealing in 
short term debt instruments such as U.S. Treasury bills, 
commercial paper, and bankers' acceptances, in contrast 
to the capital market which furnishes long term financ
ing. 
Money of adieu. In French law, earnest money; so 
called because given at parting in completion of the 
bargain. Arrhes is the usual French word for earnest 
money; "money of adieu" is a provincialism found in 
the province of Orleans. 
Money order. A type of negotiable draft issued by 
banks, post offices, telegraph companies and express 
companies and used by the purchaser as a substitute for 
a check. Form of credit instrument calling for payment 
of money to named payee, and involving three parties: 
remitter, payee, and drawee. Fidelity Bank & Trust Co. 
v. Fitzimons, Minn., 261 N.W.2d 586, 589. Money order 
may encompass nonnegotiable as well as negotiable in
struments"1md may be issued by a governmental agency, 
a bank, or private person or entity authorized to issue it, 
but essential characteristic is that it is purchased for 
purpose of paying a debt or to transmit funds upon 
credit of the issuer of the money order. People v. 
Norwood, 26 C.A.3d 148, 103 Cal.Rptr. 7, 12. 
Money-order office. One of the post-offices authorized 
to draw or pay money orders. 
Money paid. In common law pleading, the technical 
name of a declaration in assumpsit, in which the plain
tiff declares for money paid for the use of the defendant. 
See also Money had and received. 
Money-purchase plan. A pension plan where the em
ployer contributes a specified amount of cash each year 
to each employee's pension fund. Benefits ultimately 
received by the employee are not specifically defined but 
depend on the rate of return on the cash invested. 
Money supply. The amount of money in the economy 
at any point in time. Such consists of funds in circula
tion as well as in checking accounts. Money has been 
categorized into 4 groups based upon liquidity, as fol
lows: 
M-1 is generally funds in circulation, checking ac
counts, drafts. 
1006 
M-2 includes M-l as well as mutual funds, overnight 
repurchase agreements, and savings accounts. 
M-3 includes M-2 as well as longer term repurchase 
agreements and time deposits in excess of $1 00,000. 
L includes M-3 as well as banker's acceptances, T-bills 
and similar longer term investments. 
Monger /m6IJg�r/. A dealer or seller. It is seldom or 
never used alone, or otherwise than after the name of 
any commodity, to express a seller of such commodity; 
e.g. fishmonger, moneymonger. 
Moniers, or moneyeers /m6wniy�rz/m.Jniy�rz/. Minis
ters of the mint; also bankers. 
Moniment /m6n�m�nt/. A memorial, superscription, or 
record. 
Monition /m�nish�n/. In admiralty, formerly the sum
mons to appear and answer, issued on filing the libel; 
which was either a simple monition in personam or an 
attachment and monition in rem. With the unification 
of the Admiralty Rules and Federal Rules of Civil Proce
dure in 1966, the monition was abolished. 
General monition. In civil law practice, a monition or 
summons to all parties in interest to appear and show 
cause against the decree prayed for. 
Practice. A monition is a formal order of the court 
commanding something to be done by the person to 
whom it is directed, and who is called the "person 
monished." Thus, when money is decreed to be paid, a 
monition may be obtained commanding its payment. In 
ecclesiastical procedure, a monition is an order monish
ing or warning the party complained against to do or 
not to do a certain act "under pain of the law and 
contempt thereof." A monition may also be appended 
to a sentence inflicting a punishment for a past offense; 
in that case the monition forbids the repetition of the 
offense. 
Monitory letters /m6n�t(�)riy let�rz/. Communications 
of warning and admonition sent from an ecclesiastical 
judge, upon information of scandal and abuses within 
the cognizance of his court. 
Monocracy /m�n6kr�siy/. A government by one person. 
Monocrat /m6n�krretl. A monarch who governs alone; 
an absolute governor. 
Monogamy /m�n6g�miy /. The marriage of one wife 
only, or the state of such as are restrained to a single 
wife. The term is used in opposition to "bigamy" and 
"polygamy." 
Monomachy /m�n6m�kiy/. A duel; a single combat. It 
was anciently allowed by law for the trial or proof of 
crimes. It was even permitted in pecuniary causes, but 
it is now forbidden both by the civil law and canon laws. 
Monopolia dicitur, cum unus solus aliquod genus 
mercaturre universum emit, pretium ad suum libi
tum statuens /mon�p6wliy� dis�t�r, kolm yuwn�s s6wl�s 
rel�kwod jiyn�s m�rk�turiy yuwn�v;)rs�m iym�t, 
priyshiy�m red syuw�m lib�t�m stretyuwilnz/. It is said 
to be a monopoly when one person alone buys up the

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1007 
whole of one kind of commodity, fixing a price at his 
own pleasure. 
Monopolium /mon�powl(i)y�m/. The sole power, right, 
or privilege of sale; monopoly; a monopoly. 
Monopoly Im�nop(�)ly/. A privilege or peculiar advan
tage vested in one or more persons or companies, con
sisting in the exclusive right (or power) to carry on a 
particular business or trade, manufacture a particular 
article, or control the sale of the whole supply of a 
particular commodity. A form of market structure in 
which one or only a few firms dominate the total sales of 
a product or service. 
"Monopoly", as prohibited by Section 2 of the Sher
man Antitrust Act, has two elements: possession of 
monopoly power in relevant market and willful acquisi
tion or maintenance of that power, as distinguished 
from growth or development as a consequence of a 
superior product, business acumen, or historic accident. 
U. S. v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 1704, 
16 L.Ed.2d 778. A monopoly condemned by the Sher
man Act is the power to fix prices or exclude competi
tion, coupled with policies designed to use or preserve 
that power. U. S. v. Otter Tail Power Co., D.C.Minn., 
331 F.Supp. 54, 58. 
It is "monopolization" in violation of Sherman Anti
trust Act for persons to combine or conspire to acquire 
or maintain power to exclude competitors from any part 
of trade or commerce, provided they also have such 
power that they are able, as group, to exclude actual or 
potential competition and provided that they have in
tent and purpose to exercise that power. Davidson v. 
Kansas City Star Co., D.C.Mo., 202 F.Supp. 613, 617; 
Moore v. Jas. H. Matthews & Co., C.A.Or., 473 F.2d 328, 
332. 
See also Market; Relevant market. 
Legal monopoly. Exclusive right granted by governmen
tal unit to business to provide such services as electric 
and telephone service. The rates and services of such 
utilities are in turn regulated by the government. 
Natural monopoly. A natural monopoly is one resulting 
where one firm of efficient size can produce all or more 
than market can take at remunerative price. Ovitron 
Corp. v. General Motors Corp., D.C.N.Y., 295 F.Supp. 
373, 377. One which is created from circumstances over 
which the monopolist has no power. For example, a 
market for a particular product may be so limited that it 
is impossible to profitably produce such except by a 
single plant large enough to supply the whole demand. 
U. S. v. Aluminum Co. of America, C.C.A.N.Y., 148 F.2d 
416, 430. 
Monopoly power. The "monopoly power" which must 
exist in order to establish a violation of Sherman Anti
trust Act may be defined as the power to fix prices, to 
exclude competitors, or to control the market in the 
relevant geographical area in question. ALW, Inc. v. 
United Air Lines, Inc., C.A.Nev., 510 F.2d 52, 56 . . See 
also Market; Monopoly; Relevant market. 
MONUMENT 
Monopsony. A condition of the market in which there 
is but one buyer for a particular commodity. 
Monstrans de dr oit /monstr�nz d� droyt/. L. Fr. In 
English law, a showing or manifestation of right; one of 
the common law methods of obtaining possession or 
restitution from the crown, of either real or personal 
property. It is the proper proceeding when the right of 
the party, as well as the right of the crown, appears 
upon record, and consists in putting in a claim of right 
grounded on facts already acknowledged and estab
lished, and praying the judgment of the court whether 
upon these facts the king or the subject has the right. 3 
Bl.Comm. 256. 
Monstrans de faits Im6nstr�nz d� fey(ts)/. L. Fr. In 
old English practice, a showing of deeds; a species of 
profert. 
Monstraverunt, writ of lrid �v monstr�vir�ntl. In Eng
lish law, a writ which lies for the tenants of ancient 
demesne who hold by free charter, and not for those 
tenants who hold by copy of court roll, or by the rod, 
according to the custom of the manor. 
Montes pietatis Imontiyz pay�teyt�s/. Public pawnbro
king establishments; institutions established by govern
ment, in some European countries, for lending small 
sums of money on pledges of personal property. In 
France they are called "monts de piete. " 
Month. Word "month," unless otherwise defined, means 
"calendar month," or time from any day of any of the 
months as adjudged in the calendar to corresponding 
day, if any, if not any, to last day, of next month. 
The space of time denoted by this term varies accord
ing as one or another of the following varieties of 
months is intended: 
Astronomical, containing one-twelfth of the time occu
pied by the sum in passing through the entire zodiac. 
Calendar, civil, or solar , which is one of the months in 
the Gregorian calendar,-January, February, March, 
etc.,-which are of unequal length. 
Lunar, being the period of one revolution of the moon, 
or twenty-eight days. 
The word "month," when used in a statute or contract 
without qualification, meant at common law a lunar 
month of 28 days. State v. White, 73 Fla. 426, 74 So. 
486, 487. 
Month to month tenancy. See Tenancy. 
Monument. Anything by which the memory of a per
son, thing, idea, art, science or event is preserved or 
perpetuated. A tomb where a dead body has been 
deposited. 
In real-property law and surveying, monuments are 
visible marks or indications left on natural or other 
objects indicating the lines and boundaries of a survey. 
Any physical object on ground which helps to establish 
location of boundary line called for; it may be either 
natural (e.g. trees, rivers, and other land features) or 
artificial (e.g. fences, stones, stakes, or the like placed by

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MONUMENT 
human hands). Delphey v. Savage, 227 Md. 373, 177 
A.2d 249, 251. See also Natural monument. 
Monumenta qure nos recorda vocamus sunt veritatis 
et vetustatis vestigia /mony�ment� kwiy nows r�kord� 
vowkeym�s s�nt vehr�teyt�s et ved�steyt�s v�s
tij(iy)�/. Monuments, which we call "records," are the 
vestiges of truth and antiquity. 
Monung. See Manung or monung. 
Moonlighting. Working at another job after hours of 
regular job. Bealmer v. Texaco, Inc., C.A.Cal., 427 F.2d 
885, 886. 
Moonshine. Intoxicating liquor illicitly produced or 
smuggled into community for beverage purposes, or spir
ituous liquor, illegally distilled or manufactured. State 
v. King, 331 Mo. 268, 53 S.W.2d 252, 254. 
Moorage. A sum charged for use of mooring facilities. 
Act of mooring vessel. 
Mooring. Anchoring or making fast to the shore or 
dock. The securing or confining a vessel in a particular 
station, as by cables and anchors or by a line or chain 
run to the wharf. 
Moot. A subject for argument; unsettled; undecided. A 
moot point is one not settled by judicial decisions. 
Moot case. A case is "moot" when a determination is 
sought on a matter which, when rendered, cannot have 
any practical effect on the existing controversy. Leon
hart v. McCormick, D.C.Pa., 395 F.Supp. 1073, 1076. 
Question is "moot" when it presents no actual controver
sy or where the issues have ceased to exist. Matter of 
Lawson's Estate, 41 Ill.App.3d 37, 353 N.E.2d 345, 347. 
Generally, an action is considered "moot" when it no 
longer presents a justiciable controversy because issues 
involved have become academic or dead. Sigma Chi 
Fraternity v. Regents of University of Colo., D.C.Colo., 
258 F.Supp. 515, 523. Case in which the matter in 
dispute has already been resolved and hence, one not 
entitled to judicial intervention unless the issue is a 
recurring one and likely to be raised again between the 
parties. Super Tire Engineering Co. v. McCorkle, 416 
U.S. 11 5, 94 S.Ct. 1694, 40 L.Ed.2d 1. A case becomes 
"moot" when the issues presented are no longer "live" 
or the parties lack a legally cognizable interest in the 
outcome. Murphy v. Hunt, U.S.Neb., 455 U.S. 478, 102 
S.Ct. 11 81, 11 82, 71 L.Ed.2d 353. 
Moot court. A court held (normally in law schools) for 
the arguing of moot or hypothetical cases. 
Moot hill. Hill of meeting (gemot), on which the Britons 
used to hold their courts, the judge sitting on the emi
nence; the parties, etc., on an elevated platform below. 
Mooting. The exercise of arguing questions of law or 
equity, raised for the purpose. See Moot court. 
Moot man. One of those who used to argue the reader's 
cases in the inns of court. 
Mora /mor�/. Lat. In the civil law, delay; default; 
neglect; culpable delay or default. 
1008 
Moral. Pertains to character, conduct, intention, social 
relations, etc. 
1. Pertaining or relating to the conscience or moral 
sense or to the general principles of right conduct. 
2. Cognizable or enforceable only by the conscience 
or by the principles of right conduct, as distinguished 
from positive law. 
3. Depending upon or resulting from probability; 
raising a belief or conviction in the mind independent of 
strict or logical proof. 
4. Involving or affecting the moral sense; as in the 
phrase "moral insanity." 
Moral actions. Those only in which men have knowl
edge to guide them, and a will to choose for themselves. 
Moral certainty. That degree of assurance which induc
es a man of sound mind to act, without doubt, upon the 
conclusions to which it leads. A high degree of impres
sion of the truth of a fact, falling short of absolute 
certainty, but sufficient to justify a verdict of guilty, 
even in a capital case. Such signifies a probability 
sufficiently strong to justify action on it; a very high 
degree of probability, although not demonstrable, as a 
certainty. It has also been used as indicating a conclu
sion of the mind established beyond a reasonable doubt. 
Gray v. State, 56 Okl.Cr. 208, 38 P.2d 967. 
Moral consideration. See Consideration. 
Moral duress. Consists in imposition, oppression, undue 
influence, or the taking of undue advantage of the 
business or financial stress or extreme necessity or 
weakness of another. Lafayette Dramatic Productions 
v. Ferentz, 305 Mich. 193, 9 N.W.2d 57, 66. See also 
Coercion; Duress. 
Moral evidence. As opposed to "mathematical" or "de
monstrative" evidence, this term denotes that kind of 
evidence which, without developing an absolute and 
necessary certainty, generates a high degree of probabil
ity or persuasive force. It is founded upon analogy or 
induction, experience of the ordinary course of nature or 
the sequence of events, and the testimony of men. 
Moral fraud. This phrase is one of the less usual 
designations of "actual" or "positive" fraud or "fraud in 
fact," as distinguished from "constructive fraud" or 
"fraud in law." It means fraud which involves actual 
guilt, a wrongful purpose, or moral obliquity. 
Moral hazard. See Hazard. 
Moral law. The law of conscience; the aggregate of 
those rules and principles of ethics which relate to right 
and wrong conduct and prescribe the standards to which 
the actions of men should conform in their dealings with 
each other. See also Natural law. 
Moral obligation. See Obligation. 
Moral turpitude. The act of baseness, vileness, or the 
depravity in private and social duties which man owes 
to his fellow man, or to society in general, contrary to 
accepted and customary rule of right and duty between 
man and man. State v. Adkins, 40 Ohio App.2d 473, 320

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1009 
N.E.2d 308, 311, 69 O.O.2d 416. Act or behavior that 
gravely violates moral sentiment or accepted moral 
standards of community and is a morally culpable quali
ty held to be present in some criminal offenses as 
distinguished from others. Lee v. Wisconsin State Bd. of 
Dental Examiners, 29 Wis.2d 330, 139 N.W.2d 61, 65. 
The quality of a crime involving grave infringement of 
the moral sentiment of the community as distinguished 
from statutory mala prohibita. People v. Ferguson, 55 
Misc.2d 711, 286 N.Y.S.2d 976, 981. See also Turpitude. 
Morandre solutionis causa Im:mendiy s�l(y)uw
shiyown�s koz�/. Lat. For the purpose of delaying or 
postponing payment or performance. 
Mora reprobatur in lege Imor� repr�beyt�r in liyjiy/. 
Delay is reprobated in law. 
Moratorium Imohr�tor(i)y�m/. A term designating sus
pension of all or of certain legal remedies against debt
ors, sometimes authorized by law during financial dis
tress. A period of permissive or obligatory delay; specif
ically, a period during which an obligor has a legal right 
to delay meeting an obligation. State ex reI. Jensen 
Livestock Co. v. Hyslop, 111 Mont. 122, 107 P.2d 1088, 
1092. Delay or postponement of a legal obligation or an 
action or proceeding. See Injunction; Restraining order. 
More favorable terms clause. A provision in a labor
management contract by which the union agrees not to 
make more favorable agreements with other and com
peting employers. 
More or less. About; substantially; or approximately; 
implying that both parties assume the risk of any ordi
nary discrepancy. The words are intended to cover 
slight or unimportant inaccuracies in quantity, Carter v. 
Finch, 186 Ark. 954, 57 S.W.2d 408; and are ordinarily 
to be interpreted as taking care of unsubstantial differ
ences or differences of small importance compared to 
the whole number of items transferred. 
Moreover. In addition thereto, also, furthermore, like
wise, beyond this, besides this. 
Morganatic-marriage. See Marriage. 
Morgangina, or morgangiva Imorgrenj�n�rj�v�/. A 
gift on the morning after the wedding; dowry; the 
husband's gift to his wife on the day after the wedding. 
Morgue Imorg/. A place where the bodies of persons 
found dead are kept for a limited time and exposed to 
view, to the end that their relatives or friends may 
identify them. 
Mormon. A member of the Church of Jesus Christ of 
Latter-day Saints. The Church was organized in 1830 at 
Seneca, New York, by Joseph Smith, and today its 
headquarters are in Salt Lake City, Utah. 
Morning loan. An unsecured loan to permit the bor
rower, generally a stockbroker, to carry on his business 
for the day. 
Morphinomania, ·or morphinism Imorf�n�meyn(i)y� 
Imorf�niz�m/. The opium habit. An excessive desire 
for morphia. 
MORTGAGE 
Mors Imorzl. Lat. Death. State v. Logan, 344 Mo. 35 1, 
126 S.W.2d 256, 259. 
Mors dicitur ultimum supplicium Imorz dis�t�r 
�lt�m�m s�plish(iy)�m/. Death is called the "last pun
ishment," the "extremity of punishment." 
Morsellum, or morsellus, terrre I morsebm tehriy 
rmorsel�so I. In old English law, a small parcel or bit of 
land. 
Mors omnia solvit Imorz omniy� solv�t/. Death dis
solves all things. Applied to the case of the death of a 
party to an action. 
Mortal. Destructive to life; causing or occasioning 
death; exposing to or deserving death, especially spiritu
al death; deadly; fatal, as, a mortal wound, or mortal 
sin; of or pertaining to time of death. 
Mortality. The relative incidence of death. 
Mortality tables. A means of ascertaining the probable 
number of years any man or woman of a given age and 
of ordinary health will live. A mortality table express
es, on the basis of the group studied, the probability 
that, of a number of persons of equal expectations of life 
who are living at the beginning of any year, a certain 
number of deaths will occur within that year. National 
Life & Acc. Ins. Co. v. U. S., D.C.Tenn., 381 F.Supp. 1034, 
1037. 
Such tables are used by insurance companies to deter
mine the premium to be charged for those in the respec
tive age groups. 
Mort civile Imor(t) s�viyl/. In French law, civil death, 
as upon conviction for felony. It was nominally abol
ished in 1854, but something very similar to it, in effect 
at least, still remains. Thus, the property of the con
demned, possessed by him at the date of his conviction, 
goes and belongs to his successors (heri
tiers), as in case of an intestacy; and his future acquired 
property goes to the state by right of its prerogative (par 
droit de desherence), but the state may, as a matter of 
grace, make it over in whole or in part to the widow and 
children. 
Mort d'ancestor Imort drens�st�r/. An ancient and now 
almost obsolete remedy in the English law. An assize of 
mort d'ancestor was a writ which lay for a person whose 
ancestor died seised of lands in fee-simple, and after his 
death a stranger abated; and this writ directed the 
sheriff to summon a jury or assize, who should view the 
land in question and recognize whether such ancestor 
were seised thereof on the day of his death, and whether 
the demandant were the next heir. 
Mortgage Imorg�j/. A mortgage is an interest in land 
created by a written instrument providing security for 
the performance of a duty or the payment of a debt. 
At common law, an estate created by a conveyance 
absolute in its form, but intended to secure the perform
ance of some act, such as the payment of money, and the 
like, by the grantor or some other person, and to become 
void if the act is performed agreeably to the terms 
prescribed at the time of making such conveyance.

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MORTGAGE 
Such a mortgage today is called an equitable mortgage. 
The mortgage operates as a conveyance of the legal title 
to the mortgagee, but such title is subject to defeasance 
on payment of the debt or performance of the duty by 
the mortgagor. 
The above definitions are applicable to the common
law (i.e. estate or title) conception of a mortgage. Such 
conception is still applicable in certain states. But in 
many other states, a mortgage is regarded as a mere 
lien, and not as creating a title or estate. Zeigler v. 
Sawyer, Tex.Civ.App., 16 S.W.2d 894, 896. It is a pledge 
or security of particular property for the payment of a 
debt or the performance of some other obligation, what
ever form the transaction may take, but is not now 
regarded as a conveyance in effect, though it may be 
cast in the form of a conveyance. Still other states have 
adopted a hybrid or intermediate theory or category of 
mortgage. 
See also Assumption of mortgage; Balloon mortgage; 
Bulk mortgage; Chattel mortgage; Col lateral mortgage; 
Conversion or convertibility clause; Corpor ate mortgage 
trust; Deed (Deed of trust ); Due-on-sale clause; In rem 
mortgage; Potomac mortgages; Release (Release of mort
gage); Ship Mortgage Act; Submor tgage; Tacit mortgage; 
Technical mortgage; Trust (Trust deed); Union mortgage 
clause. For Bona fide mortgage, see Bona fide. 
Adjustable rate mortgage (ARM). A mortgage in which 
the interest rate is not fixed but is tied to an index and 
is periodically adjusted as the rate index moves up or 
down. Such ARM mortgages commonly provide for an 
option to convert to a fixed rate mortgage. See also Cap; 
Conversion or convertibility clause; Discount index. 
Amortized mortgage. One in which the mortgagor pays 
the current interest charge as well as a portion of 
principal in his periodic payment. 
Balloon-payment mortgage. Mortgage requiring interest 
payments for a specified period and full payment of 
principal (a balloon payment) at the end of the period. 
Blanket mortgage. One which conveys title to or creates 
a lien on all the borrower's assets or a substantial 
portion of them rather than on a specific asset. 
Chattel mortgage. Mortgage secured by personal prop
erty. See Chattel mortgage. 
Closed-end mortgage. One in which neither the proper
ty mortgaged nor the amount borrowed may be altered 
during the term of the mortgage. 
Consolidated mortgage. A single mortgage given to re
place or to combine several outstanding mortgage s. 
Construction draw mortgage. Type of mortgage used to 
finance building construction. 
Conventional mortgage. The conventional mortgage is a 
contract by which a person binds the whole of his 
property, or a portion of it only, in favor of another, to 
secure the execution of some engagement, but without 
divesting himself of possession. It is distinguished from 
the "legal" mortgage, which is a privilege which the law 
alone in certain cases gives to a creditor over the proper-
1010 
ty of his debtor, without stipulation of the parties. This 
last is very much like a general lien at common law, 
created by the law rather than by the act of the parties, 
such as a judgment lien. 
Conventional home mortgage. The common security 
device used by those who wish to purchase a home by 
transferring to the bank or other financial institution a 
lien or defeasible legal title in return for the price or 
part of the price of the home. A non-FHA or VA home 
loan; i.e. not backed by government insurance or secur
ity. The mortgage is conventional in that the lender 
looks only to the credit of the borrower and the securi
ty of the property, and not to the additional backing of 
another such as would be the case with an FHA in
sured mortgage. 
Direct reduction mortgage. An amortized mortgage. 
One on which principal and interest payments are paid 
at the same time (usually monthly) with interest being 
computed on the remaining balance. 
Equitable mortgage. A specific lien upon real property 
to secure the payment of money or the performance of 
some other obligation, which a court of equity will 
recognize and enforce, in accordance with the clearly 
ascertained intent of the parties to that effect, but which 
lacks the essential features of a legal mortgage, either 
because it grows out of the transactions of the parties 
without any deed or express contract to give a lien, or 
because the instrument used for that purpose is wanting 
in some of the characteristics of a common-law mort
gage, or, being absolute in form, is accompanied by a 
collateral reservation of a right to redeem, or because an 
explicit agreement to give a mortgage has not been 
carried into effect. 
FHA mortgage. One in which the loan has been insured 
in whole or in part by the Federal Housing Administra
tion. 
First mortgage. The first (in time or right) of a series of 
two or more mortgages covering the same property and 
successively attaching as liens upon it. Also, in a more 
particular sense, a mortgage which is a first lien on the 
property, not only as against other mortgages, but as 
against any other charges or incumbrances. Also called 
"senior" mortgage. 
First mortgage bonds. Bonds the payment of which is 
secured by a first mortgage on property. 
Fixed-rate mortgage. Such mortgage specifies an inter
est rate that remains fixed for the life of the mortgage 
regardless of market conditions. Compare Adjustable 
rate mortgage, above. 
Future advances mortgage. A term used to describe a 
present mortgage transaction where part of the loan 
proceeds will not be paid out until a future date. 
General mortgage. Mortgages are sometimes classified 
as general and special, a mortgage of the former class 
being one which binds all property, present and future, 
of the debtor (sometimes called a "blanket" mortgage); 
while a special mortgage is limited to certain particular 
and specified property.

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1011 
Graduated payment ad justable rate mortgage (GPARM). 
A mortgage format that combines the features of the 
graduated payment mortgage (GPM) and the adjustable 
rate mortgage (ARM). 
Graduated payment mortgage (GPM). A mortgage loan 
that carries monthly payments which increase annually 
by a specified percentage during the early years of the 
loan and then remain constant thereafter. See also 
Adjustable rate mortgage, above. 
Growing equity mortgage (GEM). A mortgage loan that 
is fully amortized over a significantly shorter term than 
the traditional 25 or 30 year mortgage, and which may 
have payments which increase each year. 
Joint mortgage. One which is given to or by two or 
more mortgagees jointly. 
Judicial mortgage. In the law of Louisiana, the lien 
resulting from judgments, whether rendered on contest
ed cases or by default, whether final or provisional, in 
favor of the person obtaining them. Civ.Code La. art. 
3321. 
Junior mortgage. One which ranks below another mort
gage of the name property in the value of the security, 
and is subordinate to senior mortgages in its rights. 
Leasehold mortgage. Mortgage secured by lessee's inter
est in leased property. 
Legal mortgage. A term used in Louisiana. The law 
alone in certain cases gives to the creditor a mortgage 
on the property of his debtor, without it being requisite 
that the parties should stipulate it. That is called "legal 
mortgage ." It is also called a tacit mortgage, because it 
is established by the law without the aid of any agree
ment. Civ.Code La. art. 3311. 
Mortgage of goods. See Chattel mortgage. 
Open-end mortgage. A mortgage permitting the mortga
gor to borrow additional money under the same mort
gage, with certain conditions, usually as to the assets of 
the mortgagor. 
Package mortgage. A package mortgage is used to in
clude not only the real property but many items of 
personal property incident to the real property, such as 
stoves, refrigerators, and the like. 
Purchase money mortgage. Generally, any mortgage 
given to secure a loan made for the purpose of acquiring 
the land on which the mortgage is given; more particu
larly, a mortgage given to the seller of land to secure 
payment of a portion of the purchase price. A mortgage 
given, concurrently with a conveyance of land, by the 
vendee to the vendor, on the same land, to secure the 
unpaid balance of the purchase price. 
Reverse annuity mortgage (RAM). A mortgage format 
under which the mortgage loan proceeds are disbursed 
periodically over a long time period to provide regular 
income for the borrower-mortgagor. The loan will 
usually be repaid in a lump sum when the mortgagor 
dies or the property is sold. 
MORTGAGE BROKER 
Second mortgage. One which takes rank immediately 
after a first mortgage on the same property, without any 
intervening liens, and is next entitled to satisfaction out 
of the proceeds of the property. Properly speaking, 
however, the term designates the second of a series of 
mortgages, not necessarily the second lien. For in
stance, the lien of a judgment might intervene between 
the first and second mortgages; in which case, the 
second mortgage would be the third lien. Also called 
"junior" mortgage. See also Wraparound mortgage, in
fra. 
Senior mortgage. One which ranks ahead of another 
mortgage in terms of rights in the security. See also 
First mortgage, above. 
Shared appreciation mortgage (SAM). A mortgage for
mat that gives the lender the right to recover, as "con
tingent interest", some agreed-upon percentage of the 
property's appreciation in value measured when it is 
sold or at some other future fixed date. 
Shared-equity mortgage (SEM). A mortgage format un
der which a purchaser-occupant and another person 
(often a relative) become co-owners and co-mortgagors of 
real estate. Usually the non-occupant owner pays all or 
a substantial part of the monthly payments and is 
entitled to share in any appreciation when the real 
estate is sold. 
Straight mortgage. One in which the mortgagor is obli
gated to pay interest during the term of the mortgage 
and a final payment of principal at the end of the term 
in contrast to an amortized mortgage. 
Tacit mortgage. See Legal mortgage, above. 
VA Mortgage. Home mortgage loan provided to veter
ans and their spouses which is guaranteed by the Veter
ans Administration. 
Variable rate mortgage. A long-term mortgage contract 
which includes a provision permitting the lending insti
tution to adjust, upward and downward, the contract's 
interest rate in response to changes in money market 
rates and the conditions of demand for mortgages. 
Wraparound mortgage. See Wraparound mortgage. 
Mortgage banker. A person or firm engaged in the 
business of dealing in mortgages including their original 
placement, servicing, refinancing, and resale to other 
investors. Normally such banker uses its own funds as 
opposed to a commercial or savings and loan bank which 
uses primarily funds of depositors. While some mort
gage bankers do provide long term (permanent) financ
ing, the majority specialize in short term and interim 
financing. 
Mortgage bond. Bonds for which real estate or person
al property is pledged as security that the bond will be 
paid as stated in its terms. May be first, second, refund
ing, and so on. 
Mortgage broker. Person or firm who functions as 
intermediary between borrower and lender in securing 
loan, or places loans with investors.

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MORTGAGE CERTIFICATE 1012
Mortgage certificate. Document evidencing partic- ment payments, releasing liens, initiating foreclosure
ipation in a large mortgage held by the mortgagee for upon default, etc.
the benefit of the certificate holders. Mortgage warehousing. System under which mortgage
Mortgage clause. Provision in fire insurance policies company holds loans which would ordinarily be sold, in
protecting the mortgagee as his interest may appear. order to sell later at a lower discount. These mortgages
Mortgage commitment. A formal written communica- are used as collateral security with a bank to borrow
tion by a lender, agreeing to make a mortgage loan on new money to loan.
specific property, specifying the loan's amount, length of Mortgaging out. The process by which a mortgagor
time, and other conditions. Because of interest rate secures one hundred percent financing of his purchase.
fluctuations, such commitments normally have time He purchases property with no money of his own but
limitations. See also Loan commitment.
.f)�ntirely with mortgage money.
Mortgage company. A firm engaged in the business of �M:ortgagor Imorg;}j;}r/. One who, having all or some
originating and closing mortgages which are then as- " part of title to property, by written instrument pledges
signed or sold to investors. that property for some particular purpose such as secur-
Mortgage contingency clause. Clause in an agreement ity for a debt. The party who mortgages the property;
for sale of real estate conditioning the purchaser's per- the debtor. That party to a mortgage who gives legal
formance on his obtaining a mortgage from a third title or a lien to the mortgagee to secure the mortgage
party. loan.
Mortgage discount. The difference between the princi- Morth. Sax. Murder, answering exactly to the French
pal amount of a mortgage and the amount it actually "assassinat" or "muertre de guet-apens".
sells for. Sometimes called points, loan brokerage fee,
or new loan fee.
�G-Mortgagee Imorg;}jiy/. Person that takes or receives a
\? mortgage.
Mortgagee in possession. A mortgagee of real property
who is in possession of it with the agreement or assent
of the mortgagor, express or implied, and in recognition
of his mortgage and because of it, and under such
circumstances as to make the satisfaction of his lien an
equitable prerequisite to his being dispossessed.
Mortgage foreclosure. See Foreclosure.
Mortgage guarantee insurance. A type of insurance
which guarantees to the mortgagee a given portion of
the loss if the mortgagee suffers a loss due to nonpay
ment on the loan. See Federal Housing Admin istration;
Insurance.
Mortgage insurance. See Ins urance.
Mortgage lien. Encumbrances on property of mortga
gor which secures debt obligation. In some states, the
mortgagor retains legal title until foreclosure and the
mortgagee has a security interest called a lien which is
recognized ahead of other claims to the property.
Mortgage loan. A loan secured by a mortgage on real
estate in which the borrower is the mortgagor and the
lender the mortgagee. See Mortgage.
Mortgage market. Conditions which exist as to demand
for purchase of mortgages generally by financial institu
tions which use mortgages as part of their investment
portfolio.
Mortgage point. A percentage of the mortgage, gener
ally 1 %, charged by the mortgagee up front as a cost of
financing.
Mortgage servicing. The responsibilities (which may be
undertaken by a service company hired by the original
lender) of mortgage lending, such as collecting install-
Morthlaga ImorOleyg;}/. A murderer.
Morthlage ImorOleyj/. Murder.
Mortis causa Imort;}s koz;}/. Lat. By reason of death;
in contemplation of death. Thus used in the phrase
"Donatio mortis causa" (q.v.).
Mortis momentum est ultimum vitre momentum
Imort;}s m;}ment;}m est �lt;}m;}m vitytiy m;}ment;}m/.
The last moment of life is the moment of death.
Mortmain Imortmeyn/. A term applied to denote the
alienation of lands or tenements to any corporation, sole
or aggregate, ecclesiastical or temporal. These purchas
es having been chiefly made by religious houses, in
consequence of which lands became perpetually inher
ent in one "dead hand", this occasioned the general
appellation of "mortmain" to be applied to such alien
ations. 2 Bl.Comm. 268; Perin v. Carey, 65 U.S. (24
How.) 465, 16 L.Ed. 701.
Mortmain acts. These acts had for their object to pre
vent lands getting into the possession or control of
religious corporations, or, as the name indicates, in
mortua manu. After numerous prior acts dating from
the reign of Edward I, it was enacted by the statute 9
Geo. II, c. 36 (called the "Mortmain Act" par excellence),
that no lands should be given to charities unless certain
requisites should be observed. Some traces of these laws
remained until 1960.
Mortuary. A burial-place. Term applied to undertak
ing and embalming establishments.
A kind of ecclesiastical heriot, being a customary gift
of the second best living animal belonging to the de
ceased, claimed by and due to the minister in many
parishes, on the death of his parishioners, whether bur
ied in the church-yard or not. 2 Bl.Comm. 425.
Term has been sometimes used in a civil as well as in
an ecclesiastical sense, and applied to a payment to the
lord of the fee.

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1013 
Mortuary tables. See Actuarial table; Mortality tables. 
Mortuum vadium Imortyuw;}m veydiy;}m/. A dead 
pledge; a mortgage (q.v.); a pledge where the profits or 
rents of the thing pledged are not applied to the pay
ment of the debt. 
Mortuus Imortyuw;}s/. Lat. Dead. So in sheriffs re
turn. Mortuus est, he is dead. 
Mortuus civiliter Imortyuw;}s s;}vil;}t;}r/ . Civil death 
(q.v.). 
Mortuus exitus non est exitus Imortyuw;}s egz;}t;}s non 
est egz;}d;}s/. A dead issue is no issue. A child born 
dead is not considered as issue. 
Mortuus sine prole Imortyuw;}s sayniy prowliy/. Dead 
without issue. In genealogical tables often abbreviated 
to "m.s.p." 
Moslem Law. One of the two great systems of custom
ary law which the English found in India. It regulated 
the life and relations of all Moslems, and parts of it, 
especially its penal provisions, were applied to both 
Moslems and Hindus. 
Mos retinendus est fidelissimre vetustatis Imows 
ret;}nend;}s est filyd;}lis;}miy vet;}steyt;}s/. A custom of 
the truest antiquity is to be retained. 
Most favored nation clause. A clause found in most 
treaties providing that the citizens or subjects of the 
contracting nations may enjoy the privileges accorded by 
either party to those of the most favored nations. The 
general design of such clauses is to establish the princi
ple of equality of international treatment. The test of 
whether this principle is violated by the concession of 
advantages to a particular nation is not the form in 
which such concession is made, but the condition on 
which it is granted; whether it is given for a price, or 
whether this price is in the nature of a substantial 
equivalent, and not of a mere evasion. The United 
States has generally taken the stand that reciprocal 
commercial concessions are given for a valuable consid
eration and are not within the scope of this clause. 
Whitney v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 
386. See also ReCiprocal trade agreements. 
A primary effect of "most favored nation" status is 
lower import tariffs or duties. 
Most suitable use valuation. For gift and estate tax 
purposes, property that is transferred normally is val
ued in accordance with its most suitable or highest and 
best use. Thus, if a farm is worth more as a potential 
shopping center, this value will control even though the 
transferee (i.e., the donee or heir) continues to use the 
property as a farm. For an exception to this rule 
concerning the valuation of certain kinds of real estate 
transferred by death, see Special use valuation. 
Mote Imowt/. Sax. A meeting; an assembly. Used in 
composition, as burgmote, folkmote, etc. 
Moteer. A customary service or payment at the mote or 
court of the lord, from which some were exempted by 
charter or privilege. 
MOTION IN LIMINE 
Mother. A woman who has borne a child. A female 
parent. The term includes maternity during prebirth 
period. 
Mother-in-law. The mother of one's wife or of one's 
husband. 
Motion. In parliamentary law, the formal mode in 
which a member submits a proposed measure or resolve 
for the consideration and action of the meeting. 
An application made to a court or judge for purpose of 
obtaining a rule or order directing some act to be done 
in favor of the applicant. State v. James, Mo., 347 
S.W.2d 211, 216. It is usually made within the frame
work of an existing action or proceeding and is ordinari
ly made on notice, but some motions may be made 
without notice. One without notice is called an ex parte 
motion. Written or oral application to court for ruling 
or order, made before (e.g. motion to dismiss) during (e.g. 
motion for directed verdict), or after (e.g. motion for new 
trial) trial. For requisite form of motions, see Fed.R. Civ
il P. 7(b). 
See also Speaking motion. 
Motion for judgment notwithstanding verdict.. A mo
tion that judgment be entered in accordance with the 
movant's earlier motion for a directed verdict and not
withstanding the contrary verdict actually returned by 
the jury. Huff v. Thornton, 287 N.C. 1, 213 S.E.2d 198, 
204. See Fed.R.C ivil P. 50(b). See Non obstante veredic
to. 
Motion for judgment on pleadings. Under Fed.R. Civil 
P. 12(c) any party may move after the pleadings are 
closed for judgment thereon. It is a device for disposing 
of cases when the material facts are not in dispute and 
only questions of law remain. See also Summ ary judg
ment. 
Motion for more definite statement. If a pleading is so 
vague or ambiguous that a party cannot reasonably be 
required to frame a responsive pleading, such party may 
move for a more definite statement. Fed.R.Ci vil P. 
12(e). 
Motion for new trial. A request that the judge set 
aside the judgment or verdict and order a new trial on 
the basis that the trial was improper or unfair due to 
specified prejudicial errors that occurred, because of 
newly discovered evidence, etc. Fed.R. Civil P. 59; Fed. 
R.Crim.P. 33. See also Plain error rule. 
Motion in arrest of judgment. See Arrest of judgment. 
Motion in bar. One which, if allowed, will absolutely 
bar the action; e.g. plea of double jeopardy. U. S. v. 
Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. 
Motion in limine. A pretrial motion requesting court to 
prohibit opposing counsel from referring to or offering 
evidence on matters so highly prejudicial to moving 
party that curative instructions cannot prevent predis
positional effect on jury. Messler v. Simmons Gun 
Specialties, Inc., Okl., 687 P.2d 121, 127. Purpose of 
such motion is to avoid injection into trial of matters 
which are irrelevant, inadmissible and prejudicial and 
granting of motion is not a ruling on evidence and,

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MOTION IN LIMINE 
where properly drawn, granting of motion cannot be 
error. Redding v. Ferguson, Tex.Civ.App., 501 S.W.2d 
717, 724. See also Motion to suppress; Suppression 
hearing. 
Motion to dismiss. A motion requesting that a com
plaint be dismissed because it does not state a claim for 
which the law provides a remedy, or is in some other 
way legally insufficient. One which is generally inter
posed before trial to attack the action on the basis of 
insufficiency of the pleading, of process, venue, joinder, 
etc. Fed.R.Civil P. 12(b). See also Demurrer. 
Motion to strike. On motion of either party, the court 
may order stricken from any pleading any insufficient 
defense, or any redundant, immaterial, impertinent or 
scandalous matter. Fed.R. Civil P. 12(£). 
Motion to suppress. Device used to eliminate from the 
trial of a criminal case evidence which has been secured 
illegally, generally in violation of the Fourth Amend
ment (search and seizure), the Fifth Amendment (privi
lege against self incrimination), or the Sixth Amend
ment (right to assistance of counsel, right of confronta
tion etc.), of U.S. Constitution. See Fed.R.Crim.P. 12(b) 
and 41(f); also Motion in limine; Suppression hearing. 
Motive. Cause or reason that moves the will and induc
es action. An idea, belief or emotion that impels or 
incites one to act in accordance with his state of mind or 
emotion. People v. Gibson, 56 C.A.3d 11 9, 128 Cal.Rptr. 
302, 308. The circumstance tending to establish the 
requisite mens rea for a criminal act and is the induce
ment which impels or leads the mind to indulge in a 
criminal act. State v. Segotta, App., 100 N.M. 18, 665 
P.2d 280, 287. 
In common usage intent and "motive" are not infre
quently regarded as one and the same thing. In law 
there is a distinction between them. "Motive" is said to 
be the moving course, the impulse, the desire that induc
es criminal action on part of the accused; it is distin
guished from "intent" which is the purpose or design 
with which the act is done, the purpose to make the 
means adopted effective. State v. Willis, Mo.App., 632 
S.W.2d 63, 65. 
As to criminal motive, see Criminal; Mens rea. See 
also Intent. 
Motor Carrier Act. Federal statute (administered by 
ICC) which regulated (routes, rates, etc.) motor carriers 
of freight and passengers in interstate commerce. 49 
U.S.C.A. § 301 et seq. This Act was repealed in 1983 
when motor carriers became deregulated. 
Mouth of river. By statute in some states, the mouth of 
a river or creek, which empties into another river or 
creek, is defined as the point where the middle of the 
channel of each intersects the other. 
Movable. That which can be changed in place, as mova
ble property; or in time, as movable feasts or terms of 
court. Compare Fixture. 
Movable estate. A term equivalent to "personal estate" 
or "personal property." 
1014 
Movable freehold. A term applied by Lord Coke to real 
property which is capable of being increased· or dimin
ished by natural causes; as where the owner of seashore 
acquires or loses land as the waters recede or approach. 
Movables. Things movable; movable or personal chat
tels which may be annexed to or attendant on the 
person of the owner, and carried about with him from 
one place to another. Things which may be carried 
from one place to another whether they move by them
selves or whether they are inanimate objects capable of 
being moved by extraneous power. Succession of 
Young, La.App., 205 So.2d 791, 796. 
Movant. One who moves; one who makes a motion 
before a court; the applicant for a rule or order. 
Move. To make an application to a court for a rule or 
order, or to take action in any matter. The term com
prehends all things necessary to be done by a litigant to 
obtain an order of the court directing the relief sought. 
See Motion. 
To propose a resolution, or recommend action in a 
deliberate body. 
To pass over; to be transferred, as when the consider
ation of a contract is said to "move" from one party to 
the other. 
To occasion; to contribute to; to tend or lead to. 
Movent. An alternative spelling of movant. 
Move out. To vacate; to yield up possession. 
Moving papers. Such papers as are made the basis of 
some motion in court proceedings, e.g. a motion for 
summary judgment with supporting affidavits. 
Mrs. Title of courtesy prefixed to name of woman to 
indicate that she is or has been married. Guide Pub. 
Co. v. Futrell, 175 Va. 77, 7 S.E.2d 133, 138. 
Ms. Title prefixed to a woman's name which does not 
indicate whether she is married or single but simply 
indicates that she is a woman. 
Muciana cautio Im(y)uwsiyeyn� kosh(iy)ow/. See Cau
tio. 
Mug book. Collection of pictures or "mug shots" of 
suspects in criminal cases kept by police and FBI and 
displayed to victim or witnesses in order to obtain iden
tification of criminal offender. 
Mugshot. Photograph of person's face taken on being 
booked into custody; usually used as an official photo
graph by police officers. 
Mulatto Im�latow/m(y)uwO I. A person that is the off
spring of a negress by a white man, or of a white woman 
by a negro. In a more general sense, a person of mixed 
Caucasian and negro blood, or Indian and negro blood. 
Mulct Im�lkt/. A penalty or punishment imposed on a 
person guilty of some offense, tort, or misdemeanor, 
usually a pecuniary fine or condemnation in damages. 
A forfeit, fine, or penalty. To sentence to a pecuniary 
penalty or forfeiture as a punishment; fine; hence to

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1015 
fine unjustly; to punish. Gorton v. Doty, 57 Idaho 792, 
69 P.2d 136, 142. 
Formerly, an imposition laid on ships or goods by a 
company of trade for the maintenance of consuls and 
the like. 
Mulcta damnum fama:: non irrogat Im�lkt� dremn�m 
feymiy non ihr�g�t1. A fine does not involve loss of 
character. 
Mulier Imyuwl(i)y�r/. Lat. A woman; a wife; a widow; 
a virgin; a legitimate child. 
The term is used always in contradistinction to a 
bastard, mulier being always legitimate. 
Mulieratus Imyuwl(i)y�reyt�s/. A legitimate son. 
Mulier puisne Imyuwl(i)y�r pyuwniyrpwiyney /. L. Fr. 
When a man has a bastard son, and afterwards marries 
the mother, and by her has also a legitimate son, the 
elder son is bastard eigne, and the younger son is mulier 
puisne. 
Mulierty Imyuwliy�rtiy/. In old English law, the state 
or condition of a mulier, or lawful issue. The opposite of 
bastardy. 
Multa Im�lt�/. A fine or final satisfaction, anciently 
given to the king by the bishops, that they might have 
power to make their wills, and that they might have the 
probate of other men's wills, and the granting of admin
istration. Called, also, multura episcopi. 
A fine imposed ex arbitrio by magistrates on the 
prresides probinciarum. 
Multa conceduntur per obliquum qua:: non concedun
tur de directo Im�lt� kons�d�nt�r p�r �blaykw�m kwiy 
non kons�d�nt�r diy d�rektow I. Many things are al
lowed indirectly which are not allowed directly. 
Multa fidem promissa levant Im�lt� fayd�m pr�mis� 
lev�ntl. Many promises lessen confidence. 
Multa ignoramus qua:: nobis non laterent si veterum 
lectio nobis fuit familiaris Im�lt� ign�reym�s kwiy 
nowb�s non lred�r�nt say vet�r�m leksh(iy)ow nowb�s 
fyuw�t f�miliyer�s/. We are ignorant of many things 
which would not be hidden from us if the reading of old 
authors was familiar to us. 
Multa in jure communi contra rationem disputandi, 
pro communi utilitate introducta sunt Im�lt� in juriy 
k�myuwnay kontr� rreshiyown�m dispyuwtrenday, prow 
k�myuwnay yuwtil�teytiy intr�d�kt� s�ntl. Many 
things have been introduced into the common law, with 
a view to the public good, which are inconsistent with 
sound reason. 
Multa multo exercitatione facilius quam regulis per
Clples Im�lt� m�ltow egz�rs�teyshiyowniy f�siliy�s 
kwrem regy�l�s p�rsipiyiyzl . You will perceive many 
things much more easily by practice than by rules. 
Multa non vetat lex, qua:: tamen tacite damnavit 
I m�lt� non viyt�t leks, kwiy teym�n tres�tiy da::mneyv�t/. 
The law forbids not many things which yet it has 
silently condemned. 
MULTINATIONAL CORPORATION 
Multa transeunt cum universitate qua:: non per se 
transeunt Im�lt� trrenziy�nt k�m yuwn�v�rs�teytiy 
kwiy non p�r siy trrenziy�ntl. Many things pass with 
the whole which do not pass separately. 
Multicraft union. A labor union which craftsmen in 
different trades may join. 
Multidistrict litigation. When civil actions involving 
one or more common (and often complex) questions of 
fact are pending in several different federal district 
courts, such actions may be transferred to one district 
for coordinated and consolidated management and trial 
under a single judge. 28 U.S.C.A. § 1407. The types of 
cases in which massive filings of multidistrict litigation 
are reasonably certain to occur include not only civil 
antitrust actions but also, common disaster (air crash) 
actions, patent and trademark suits, products liability 
actions and securities law violation actions, among oth
ers. Such cases are assigned and transferred by a 
Judicial Panel on Multidistrict Litigation, and are gov
erned by the "Manual for Complex Litigation" and 
"Rules of Procedure of the Judicial Panel on Multidis
trict Litigati on." 
Multifarious issue. A multifarious issue is one that 
inquires about several different facts when each fact 
should be inquired about in a separate issue. District 
Trustees of Campbellton Consol. Common School Dist. 
No. 16 v. Pleasanton Independent School Dist., Tex.Civ. 
App., 362 S.W.2d 122, 127. See Multifariousness. 
Multifariousness Im�lt�fer(i)y�sn�s/. In equity plead
ing, the misjoinder of causes of action in a bill. The 
fault of improperly joining in one bill distinct and inde
pendent matters, and thereby confounding them; as, for 
example, the uniting in one bill of several matters 
perfectly distinct and unconnected against one defen
dant (more commonly called misjoinder of claims), or the 
demand of several matters of a distinct and independent 
nature against several defendants, in the same bill. 
Essen v. Adams, 342 Mo. 11 96, 11 9 S.W.2d 773, 777. 
This problem does not generally arise in the federal 
courts or in the majority of state courts, for Rule of Civil 
Procedure 8(e) permits pleading of inconsistent claims or 
defenses and Rule 18(a) permits liberal joinder of inde
pendent or alternative claims. Civil Rule 18 permits a 
party to join, either as independent or as alternate 
claims, as many claims, legal, equitable, or maritime, as 
he has against an opposing party. 
Legislation. The joining, in a single legislative act, of 
dissimilar and discordant subjects, which, by no fair 
intendment, can be considered as having a legitimate 
connection or relation to the subject of the act. 
Multilateral agreement. An agreement among more 
than two persons, firms, or governments. 
Multi multa, nemo omnia novit Im�ltay m�lt�, niymow 
omniy� nowv�t/. Many men have known many things; 
no one has known everything. 
Multinational corporation. In a strict sense this term 
is descriptive of a firm which has centers of operation in 
many countries in contrast to an "international" firm

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MULTINATIONAL CORPORATION 
which does business in many countries but is based in 
only one country, though the terms are often used 
interchangeably. 
Multipartite Im�ltiypartayt/. Divided into many or sev
eral parts. 
Multiple access. The defense of several lovers in pater
nity actions. Yarmark v. Strickland, Fla.App., 193 
So.2d 212 . 
Multiple counts. A civil pleading (e.g. complaint) or a 
criminal indictment which contains several separate 
causes of action or crimes within the framework of one 
pleading. Joinder of multiple claims against opposing 
party is permitted under Fed.R.Civil P. 18. Joinder of 
offenses is provided for in Fed.R.Crim.P. 8. 
Multiple evidence. That which is admissible for a spe
cific purpose to which it must be confined and inadmissi
ble to prove a different fact. 
Multiple listing. An agreement between the owner of 
real estate and a broker in which the broker will permit 
other brokers to sell property for a percentage of his 
commission or on some other basis satisfactory to the 
brokers. Device used by real estate brokers to give wide 
exposure to properties listed for sale whereby each coop
erating broker informs all other participating brokers of 
properties listed with him. Grempler v. Multiple List
ing Bureau of Harford County, Inc., 258 Md. 419, 266 
A.2d 1, 3. See also Listing. 
Multiple offenses. A single act may be an offense 
against two statutes, and if each statute requires proof 
of an additional fact which the other does not, an 
acquittal or conviction under either statute does not 
exempt the defendant from prosecution and punishment 
under the other. If there is identity between the two 
charges, the defendant may not be punished for both, 
though he may be punished for the more serious. Com. 
v. Kuklis, 361 Mass. 302, 280 N.E.2d 155 . 
Multiple-party accounts. A multiple-party account is 
any of the following types of account: (i) a joint account, 
(ii) a P.O.D. account, or (iii) a trust account. It does not 
include accounts established for deposit of funds of a 
partnership, joint venture, or other association for busi
ness purposes, or accounts controlled by one or more 
persons as the duly authorized agent or trustee for a 
corporation, unincorporated association, charitable or 
civic organization or a regular fiduciary or trust account 
where the relationship is established other than by 
deposit agr eement. Uniform Probate Code, § 6-101(5). 
Multiple sentences. If a defendant has been found 
guilty of more than one offense, he may be given consec
utive ("on and af ter") sentences. See also Sentence. 
Multiplex et indistinctum parit confusionem; et 
qurestiones, quo simpliciores, eo lucidiores Im;il
t�pleks et ind�stiIJkt�m prer�t k�nfyuz(h)iy6w
n�m et kwes(h)chiy6wniyz, kwow simplisiy6riyz 
iyow 1(y)uwsidiy6riyz/. Multiplicity and indistinctness 
produce confusion; and questions, the more simple they 
are, the more lucid. 
1016 
Multiplicata transgressione crescat prenre inflictio 
Im�lt�pl�keyt� trrenzgreshiy6wniy kresk�t piyniy 
infliksh(iy)ow/. As transgression is multiplied, the in
fliction of punishment should· increase. 
Multiplicity Im�lt�plis�tiy/. A state of being many. 
That quality of a pleading which involves a variety of 
matters or particulars. A multiplying or increasing. 
Multiplicity of actions or suits. Numerous and unnec
essary attempts to litigate the same right. A phrase 
descriptive of the situation where several different suits 
or actions are brought upon the same issue. The actions 
must be against a single defendant. Prospect Park & C. 
I. R. Co. v. Morey, 155 App.Div. 347, 140 N.Y.S. 380, 385. 
Under Civil Rules practice such claims should properly 
be joined or maintained as a single class action. Fed.R. 
Civil P. 23. 
Term "multiplicity" refers to the practice of charging 
the commission of a single offense in several counts. 
This practice is prohibited because single wrongful act 
cannot furnish basis for more than one criminal prose
cution. State v. Hill, 10 Kan.App.2d 607, 706 P.2d 472, 
475; U.S. v. Stanfa, C.A.Pa., 685 F.2d 85, 86. Federal 
Rules of Criminal Procedure have been drafted to dis
courage this practice. U. S. v. Allied Chemical Corp., 
D.C.Va., 420 F.Supp. 122, 123. 
See Colla teral estoppel doctrine; Duplicity; Final deci
sion rule; Multiple counts; Res (Res judicata ). 
Multistate corporation. A corporation that has opera
tions in more than one state; from which issues com
monly arise relative to the assignment of appropriate 
amounts of the entity's taxable income to the states in 
which it has a presence. 
Multitude. An assemblage of many people. 
Multitudinem decem faciunt Im�lt�t(y)uwd�n�m 
diys�m feyshiy�nt/. Ten makes a multitude. 
Multitudo errantium non parit errori patrocinium 
Im�lt�tyuwdow �rrensh(iy)�m non prer�t �r6ray 
pretr�siniy�m/. The multitude of those who err furnish
es no countenance or excuse for error. It is no excuse 
for error that it is entertained by numbers. 
Multitudo imperitorum perdit curiam Im�lt�tyuwdow 
imp�r�t6r�m p;ird�t kyuriy�m/. A great number of uns
killful practitioners ruins a court. 
Multo utilius est pauca idonea effundere quam mul
tis inutilibus homines gravari Im;iltow yuwtiliy�s est 
p6k� id6wniy� �f;ind�riy kwrem m;ilt�s inyuwtil�b�s 
h6m�niyz gr�veray I. It is more useful to pour forth a 
few useful things than to oppress men with many use
less things. 
Multura episcopi Im�lt(y)ur� �pisk�pay/. See Multa. 
Mummification Im�m�f�keysh�n/. The complete dry
ing up of the body as the result of burial in a dry, hot 
soil, or the exposure of the body to a dry, cold atmo
sphere. 
Mund. In old English law, peace; whence mundbryc, a 
breach of the peace.

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1017 
Mundbyrd, mundeburde Im:indb;}rd/. A receiving into 
favor and protection. 
Mundium Im;)ndiyam/. In old French law, a tribute 
paid by a church or monastery to their seignorial avoues 
and vidames, as the price of protecting them. 
Munera ImyUwnara/. In the early ages of the feudal 
law, the name given to the grants of land made by a 
king or chieftain to his followers, which were held by no 
certain tenure, but merely at the will of the lord. After
wards they became life-estates, and then hereditary, and 
were called first "benefi ces," and then "feuds." 
Municeps Imyuwnaseps/. Lat. In Roman law, eligible 
to office. A provincial person; a countryman. This was 
the designation of one born in the provinces or in a city 
politically connected with Rome, who had come to Rome, 
and though a Roman citizen, yet was looked down upon 
as a provincial, and not allowed to hold the higher 
offices. 
In the provinces the term seems to have been applied 
to the freemen of any city who were eligible to the 
municipal offices. 
Municipal. In narrower, more common, sense, it means 
pertaining to a local governmental unit, commonly, a 
city or town or other governmental unit. In its broader 
sense, it means pertaining to the public or governmental 
affairs of a state or nation or of a people. Chadwick v. 
City of Crawfordsville, 216 Ind. 399, 24 N.E.2d 937, 941, 
942. Relating to a state or nation, particularly when 
considered as an entity independent of other states or 
nations. Hammel v. Little, 66 App.D.C. 356, 87 F.2d 
907, 910. 
Municipal action. Exercise of governmental power by a 
municipal board, agency, or other body, or by a munici
pal officer. Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 
13 N.W.2d 757, 761. 
Municipal affairs. A term referring to the internal 
business affairs of a municipality. Griffin v. City of Los 
Angeles, 134 Cal.App. 763, 26 P.2d 655. The term is 
frequently used in constitutional and statutory provi
sions concerning the power to legislate as to the con
cerns of municipalities. And it has come to include 
public service activities, such as supplying water to the 
inhabitants, the construction of a reservoir for their 
benefit, the sale and distribution of electrical energy, 
and the establishment and operation of transportation 
service, which were once regarded as being of a strictly 
private nature. See also Municipal function. 
Municipal aid. A contribution or assistance granted by 
a municipal corporation towards the execution or 
progress of some enterprise, undertaken by private par
ties, but likely to be of benefit to the municipality; e.g., 
urban redevelopment projects. 
Municipal authorities. As used in statutes contemplat
ing the consent of such authorities, the term means the 
consent by the legislative authorities of the city acting 
by ordinance; for example, in a town, the members of 
the town board. 
MUNICIPAL CORPORATION 
Municipal bonds. Evidences of indebtedness (debt obli
gations) issued by state or local government entities, 
negotiable in form, payable at designated future time, 
and intended for sale in market with object of raising 
money for municipal expense, which is beyond immedi
ate resources of reasonable taxation, as distinguished 
from temporary evidences of debt, such as vouchers, 
certificates of indebtedness, orders, or drafts drawn by 
one officer on another and similar devices for liquidat
ing current obligations in anticipation of collection of 
taxes. A bond issued by a village, town, city, county, 
state, or other public body. Interest on such bonds is 
generally exempt from federal income taxes and from 
some state income taxes. Sometimes referred to as "tax 
exempts." 
Municipal charter. A legislative enactment conferring 
governmental powers of the state upon its local agen
cies. 
Municipal corporation. A legal institution formed by 
charter from sovereign (i.e. state) power erecting a popu
lous community of prescribed area into a body politic 
and corporate with corporate name and continuous suc
cession and for the purpose and with the authority of 
subordinate self-government and improvement and local 
administration of affairs of state. A body corporate 
consisting of the inhabitants of a designated area cre
ated by the legislature with or without the consent of 
such inhabitants for governmental purposes, possessing 
local legislative and administrative power, also power to 
exercise within such area so much of the administrative 
power of the state as may be delegated to it and possess
ing limited capacity to own and hold property and to act 
in purveyance of public conveniences. 
Municipal corporation is a body politic and corporate, 
created to administer the internal concerns of the dis
trict embraced with its corporate limits, in matters 
peculiar to such place and not common to the state at 
large. Tribe v. Salt Lake City Corp., Utah, 540 P.2d 499, 
502. A municipal corporation has a dual character, the 
one public and the other private, and exercises corre
spondingly twofold functions and duties-one class con
sisting of those acts performed by it in exercise of 
delegated sovereign powers for benefit of people general
ly, as arm of state, enforcing general laws made in 
pursuance of general policy of the state, and the other 
consisting of acts done in exercise of power of the 
municipal corporation for its own benefit, or for benefit 
of its citizens alone, or citizens of the municipal corpora
tion and its immediate locality. Associated Enterprises, 
Inc. v. Toltec Watershed Imp. Dist., Wyo., 490 P.2d 1069, 
1070. 
See also Public corporations. 
Quasi mun icipal corporations. Bodies politic and corpo
rate, created for the sole purpose of performing one or 
more municipal functions. Public corporations orga
nized for governmental purposes and having for most 
purposes the status and powers of municipal corpora
tions (such as counties, townships, school districts, drain
age districts, irrigation districts, etc.), but not municipal

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MUNICIPAL CORPORATION 
corporations proper, such as cities and incorporated 
towns. 
Municipal corporation de facto. One which exists 
when there is (1) some law under which a corporation 
with the powers assumed might lawfully have been 
created; (2) a colorable and bona fide attempt to perfect 
an organization under such a law; (3) user of the rights 
claimed to have been conferred by the law. 
Municipal courts. In the judicial organization of sever
al states, courts are established under this name with 
territorial authority confined to the city or community 
in which they are established. Such courts usually have 
a criminal jurisdiction corresponding to that of a police 
court, and, in some cases, possess civil jurisdiction in 
small causes. In certain cities, small claims or traffic 
courts are under the jurisdiction of the municipal court. 
Municipal domicile. Sometimes used in contradistinc
tion to "national domicile" and "quasi national domi
cile" to refer to residence in a county, township, or 
municipality; called also "domestic domicile." 
Municipal election. One at which municipal officers 
are chosen. 
Municipal function. One created or granted for the 
special benefit and advantage of the urban community 
embraced within the corporate boundaries. State ex reI. 
Gebhardt v. City Council of Helena, 102 Mont. 27, 55 
P.2d 671, 673. 
Municipal functions are those which specially and 
peculiarly promote the comfort, convenience, safety and 
happiness of the citizens of the municipality, rather 
than the welfare of the general public. Under this class 
of functions are included, in most jurisdictions, the prop
er care of streets and alleys, parks and other public 
places, and the erection and maintenance of public utili
ties and improvements generally. 
Municipal government. Instrumentalities of state for 
purpose of local government. Moore v. State, 159 Tenn. 
468, 19 S.W.2d 233. This term, in certain state constitu
tions, embraces the governmental affairs of counties, 
and includes all forms of representative municipal 
government-tow ns, cities, villages, etc. See also Mun ici
pality. 
Municipality. A legally incorporated or duly authorized 
association of inhabitants of limited area for local gov
ernmental or other public purposes. A body politic 
created by the incorporation of the people of a pre
scribed locality invested with subordinate powers of leg
islation to assist in the civil government of the state and 
to regulate and administer local and internal affairs of 
the community. State ex reI. McIntire v. City Council of 
City of Libby, 107 Mont. 216, 82 P.2d 587, 588. A city, 
borough, town, township or village. Also, the body of 
officers taken collectively, belonging to a city, who are 
appointed to manage its affairs and defend its interests. 
Political subdivision or public agency or instrumental
ity of a State. Bankruptcy Code § lOI. 
See also Person (Municipalities). 
1018 
Municipal law. That which pertains solely to the citi
zens and inhabitants of a state, and is thus distinguished 
from political law, commercial law, and international 
law. City of Louisville v. Babb, C.C.A.lnd., 75 F.2d 162, 
165. In its more common and narrower connotation 
however it means those laws which pertain to towns, 
cities and villages and their local government. People 
ex reI. Ray v. Martin, 294 N.Y. 61, 60 N.E.2d 54 1, 547, 
548. 
Municipal lien. A lien or claim existing in favor of a 
municipal corporation against a property owner for his 
proportionate share of a public improvement, made by 
the municipality, whereby his property is specially and 
individually benefited. 
Municipal officer. One who holds an office of a munici
pality; e.g. mayor, city manager. 
Municipal ordinance. A law, rule, or ordinance enact
ed or adopted by a municipal corporation for the proper 
conduct of its affairs or the government of its inhab
itants; e.g. zoning or traffic ordinances, building codes. 
Particularly a regulation under a delegation of power 
from the state. 
Municipal purposes. Public or governmental purposes 
as distinguished from private purposes. It may compre
hend all activities essential to the health, morals, protec
tion, and welfare of the municipality. 
Municipal securities. The evidences of indebtedness 
issued by cities, towns, counties, townships, school-dis
tricts, and other such territorial divisions of a state. 
They are of two general classes: (1) Municipal warrants, 
orders, or certificates; (2) municipal bonds. 
The term "municipal securities" means securities 
which are direct obligations of, or obligations guaran
teed as to principal or interest by, a State or any 
political subdivision thereof, or any agency or instru
mentality of a State or any political subdivision thereof, 
or any municipal corporate instrumentality of one or 
more States, or any security which is an industrial 
development bond (as defined in § 103(c)(2) of the Inter
nal Revenue Code) the interest on which is excludable 
from gross income. Securities Exchange Act of 1934, 
§ 3. 
See Municipal bonds; Municipal warrants. 
Municipal warrants. A municipal warrant or order is 
an instrument drawn by an officer of a municipality 
upon its treasurer, directing him to pay an amount of 
money specified therein to the person named or his 
order, or to bearer. 
Municipium /myuwn;}sipiy;}m/. In Roman law, a for
eign town to which the freedom of the city of Rome was 
granted, and whose inhabitants had the privilege of 
enjoying offices and honors there. A free town which 
retained its original right of self-government, but whose 
inhabitants also acquired certain rights of Roman citi
zens. 
Muniment-house, or muniment-room. A house or 
room of strength, in cathedrals, collegiate churches,

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1019 
castles, colleges, public buildings, etc., purposely made 
for keeping deeds, charters, writings, etc. 
Muniments of title Imyuwn:lm:mts :lV tayd:ll/. Docu
mentary evidence of title. The instruments of writing 
and written evidences which the owner of lands, posses
sions, or inheritances has, by which he is enabled to 
defend the title of his estate. See Deed. 
The records of title transactions in the chain of title of 
a person purporting to create the interest in land 
claimed by such person and upon which he relies as a 
basis for the marketability of his title, commencing with 
the root of title and including all subsequent transac
tions. 
Under "muniment of title doctrine" when ownership 
of property has been litigated between individuals and 
title has been adjudicated in one of the parties, the 
losing party cannot relitigate the matter with those who 
rely upon the title of the winning party. Purdes v. 
Carvel Hall, Inc., D.C.l owa, 301 F.Supp. 1256, 1264. 
Murder. The unlawful killing of a human being by 
another with malice aforethought, either express or 
implied. Com. v. Carroll, 194 A.2d 911, 914. The crime 
is defined by statute in most states (e.g. Calif. Penal 
Code, § 187). The Model Penal Code definition is as 
follows: 
Criminal homicide constitutes murder when: (a) it is 
committed purposely or knowingly; or (b) it is commit
ted recklessly under circumstances manifesting ex
treme indifference to the value of human life. Such 
recklessness and indifference are presumed if the actor 
is engaged or is an accomplice in the commission of, or 
an attempt to commit, or flight after committing or 
attempting to commit robbery, rape or deviate sexual 
intercourse by force or threat of force, arson, burglary, 
kidnapping or felonious escape. Model Penal Code, 
§ 210.2. 
See also Assassination; Assault with intent to commit 
murder; Felony murder doctrine; Homicide; Manslaug hter. 
Degrees of murder. In most states murder is divided 
into two degrees, for the purpose of imposing a more 
severe penalty for some murders than for others. All 
murder which shall be perpetrated by means of poison, 
or by lying in wait, or by any other kind of wilful, 
deliberate and premeditated killing, or which shall be 
committed in the perpetration of, or attempt to perpe
trate any arson, rape, robbery or burglary, are common
ly deemed murder of the first degree; and all other kinds 
of murder are deemed murder of the second degree. This 
general pattern has been followed in most of the states 
although slight changes have been made in a few of 
these. Some, for example, have omitted any reference 
to "poison", while a few have added "torture" to "poi
son". To the felony-murder clause of the statute several 
have added "mayhem" and sometimes the inclusion of 
some other felony may be found, such as kidnapping, 
sodomy or larceny. In certain states there is also the 
crime of murder in the third degree. For the definition 
of first and second degree murder under the federal 
criminal code, see 18 U.S.C.A. § 1111 . 
MUTE 
Dep raved heart murder. Killing of a human being ac
complished by extreme atrocity; malice is inferred from 
the act of atrocity. Extremely negligent conduct, which 
creates what a reasonable man would realize to be not 
only an unjustifiable but also a very high degree of risk 
of death or serious bodily injury to another or to oth
ers-though unaccompanied by any intent to kill or do 
serious bodily injury-and which actually causes the 
death of another, may constitute murder. 
Serial murder. A pattern of murder in which a single 
individual selects victims either at random or because 
they share some characteristic. 
Murdrum /mardr:lm/. In old English law, the killing of 
a man in a secret manner. 
The fine formerly imposed in England upon a person 
who had committed homicide per infortunium or se 
defendendo. 
Murorum operatio /myuror;:)m op;:)reysh(iy)ow/. Lat. 
The service of work and labor done by inhabitants and 
adjoining tenants in building or repairing the walls of a 
city or castle; their personal service was commuted into 
murage (q.v.). 
Must. This word, like the word "shall," is primarily of 
mandatory effect, State ex reI. McCabe v. District Court 
of Third Judicial Dist. in and for Deer Lodge County, 
106 Mont. 272, 76 P.2d 634, 637; and in that sense is 
used in antithesis to "may". But this meaning of the 
word is not the only one, and it is often used in a merely 
directory sense, and consequently is a synonym for the 
word "may" not only in the permissive sense of that 
word, but also in the mandatory sense which it some
times has. 
Muster. To assemble together troops and their arms, 
whether for inspection, drill, or service in the field. To 
take recruits into the service in the army and inscribe 
their names on the muster-roll or official record. To 
summon together; to enroll in service. In the latter 
sense the term implies that the persons mustered are 
not already in the service. 
Muster-roll. In maritime law, a list or account of a 
ship's company, required to be kept by the master or 
other person having care of the ship, containing the 
name, age, national character, and quality of every 
person employed in the ship. At time of war it is of 
great use in ascertaining the ship's neutrality. 
Mustizo /m;:)stiyzow/. A name given in a South Car
olina Act of 1740 to the issue of an Indian and a negro. 
Mutatio nominis /myuwteysh(iy)ow nom;:)n:ls/. Lat. In 
the civil law, change of name. 
Mutatis mutandis /myuwteyd;:)s myuwtrend;:)s/. Lat. 
With the necessary changes in points of detail, meaning 
that matters or things are generally the same, but to be 
altered when necessary, as to names, offices, and the 
like. Housman v. Waterhouse, 191 App.Div. 850, 182 
N.Y.S. 249, 25 1. 
Mute. Speechless; dumb; that cannot or will not speak.

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MUTILATION 
Mutilation. As applied to written documents, such as 
wills, court records, and the like, this term means ren
dering the document imperfect by the subtraction from 
it of some essential part, as, by cutting, tearing, burning, 
or erasure, but without totally destroying it. See U.C.c. 
§ 3-407. Also, the alteration in the writing, as in a 
negotiable instrument, so as to make it another and 
different instrument and no longer evidence of the con
tract which the parties made. Clem v. Chapman, · Tex. 
Civ.App., 262 S.W. 168, 171. See also Alteration; Deface; 
Spoliation. 
In criminal law, the depriving a man of the use of any 
of those limbs which may be useful to him in fight, the 
loss of which amounts to mayhem. People v. Bullington, 
27 Cal.App.2d 396, 80 P.2d 1030, 1032. See Maim; May
hem. 
It is a federal crime to mutilate public records (18 
U.S.C.A. § 2071), coins (§ 331), passports (§ 1543). 
Mutinous. Insubordinate; disposed to mutiny; tending 
to incite or encourage mutiny. 
Mutiny, v. To rise against lawful or constituted authori
ty, particularly in the naval or military service. 
Mutiny, n. In criminal law, an insurrection of soldiers 
or seamen against the authority of their commanders; a 
sedition or revolt in the army or navy. One is guilty of 
mutiny who with intent to usurp or override lawful 
military authority refuses in concert with any other 
person or persons to obey orders or otherwise do his 
duty or creates any violence or disturbance. 10 U.S.C.A. 
§ 894. (Uniform Code of Military Justice, Art. 94.) See 
also Desertion. 
Mutiny Act. In English law, an act of parliament annu
ally passed to punish mutiny and desertion, and for the 
better payment of the army and their quarters. It was 
first passed April 12, 1689, and was the only provision 
for the payment of the army. 1 Bl.Comm. 415. 
Mutual. Common to both parties. Interchangeable; re
ciprocal; each acting in return or correspondence to the 
other; given and received;-spoken of an engagement or 
relation in which like duties and obligations are ex
changed; e.g., the marital relation. 
As to mutual Account; Assent; Combat; Condition; 
Contract; Covenant; Credits; Debt; In surance; Ins urance 
(Mutual insurance ); Mistake; Promise; and Testament, 
see those titles. See also Mutuality. 
Mutual affray. A fight in which both parties willingly 
enter and is similar to a duel. Taylor v. Common
wealth, 281 Ky. 442, 136 S.W.2d 544. See Affray. 
Mutual agreement. A meeting of the minds on a specif
ic subject, and a manifestation of intent of the parties to 
do or refrain from doing some specific act or acts. See 
Agreement; Contract; Treaty. 
Mutual association. See Savings and loan association. 
Mutual benefit association. One based on reciprocal 
contracts and requires that a member receive benefits as 
a matter of right. In re Henderson's Estate, 17 Cal.2d 
853, 112 P.2d 605, 609. Commonly a fraternal or social 
1020 
organization which provides insurance for its members 
on an assessment basis. 
Mutual benefit insurance. Type of insurance offered to 
members of a mutual benefit association commonly 
characterized by assessment of members to meet claims. 
See Mutual benefit association. 
Mutual company. A corporation in which shares are 
held exclusively by members to whom profits are distrib
uted as dividends in proportion to the business which 
the members did with the company (e.g. state-chartered 
mutual savings banks, federal savings and loan associa
tions). One in which the members are both the insurers 
and the insured (mutual insurance companies). Pink v. 
Town Taxi Co., 138 Me. 44, 21 A.2d 656, 659. 
Mutual demands. Those between the same parties and 
due in the same capacity or right. Thompson v. Prince, 
Tex.Civ.App., 126 S.W.2d 574, 576. 
Mutual fund. A fund managed by an investment com
pany in which money is raised through the sale of stock 
and subsequently invested in publicly traded securities. 
The investment performance of the mutual fund de
pends on the performance of the underlying invest
ments. Each mutual fund tends to have an investment 
objective such as; a growth fund strives for capital 
appreciation in the portfolio; an income fund looks for a 
stream of income over the life of the investment. 
There are two general types of mutual funds; "open
end" in which capitalization is not fixed and more 
shares may be sold at any time, and "closed-end" in 
which capitalization is fixed and only the number of 
shares originally authorized may be sold. 
See also Investment company; Load; Open-end invest
ment company. 
Closed-end funds. Mutual funds that do not repurchase 
their shares from investors; the shares are sold in a 
secondary market, such as on a stock exchange. 
Growth funds. Mutual funds that are composed of 
stocks of companies that are still experiencing growth; 
the objective is to generate an increase in investment 
value, with less concern about the provision of steady 
income. Compare with Income funds, below. 
Income funds. Mutual fund consisting of securities that 
provide periodic dividends or coupon payments; they 
usually consist of coupon bonds; they are designed to 
provide investors with a stable income. Compare with 
Growth funds, above. 
Index fund. A mutual fund whose portfolio is designed 
to match the performance of a broad-based index such as 
Standard & Poor's Index and whose performance there
fore mirrors the market as reflected by the index. 
Load fund. Mutual fund in which a charge (load) is 
made at time of purchase of shares to cover administra
tive and commission expenses. 
Money market funds. Mutual fund that invests in mon
ey market securities.

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1021 
No-load fund. A mutual fund that has no service 
charge (load) for buying its shares. 
Open-end funds. Mutual funds that are willing to re
purchase their shares from investors at any time. 
Mutual insurance company. Type of insurance compa
ny in which there is no capital stock and in which the 
policy holders are the sole owners. Christiansen v. 
National Savings and Trust Company, C.A.D.C., 683 
F.2d 520, 526. A cooperative enterprise in which mem
bers are both insurers and insureds, whose business is 
conducted for benefit of policy holders. Public Housing 
Administration v. Housing Authority of City of Bogalu
sa, 242 La. 519, 137 So.2d 315, 321. See also Stock 
insurance company. 
Mutuality. Reciprocation; interchange. An acting by 
each of two parties; an acting in return. "Mutuality of 
contract" means that obligation rests on each party to 
do or permit doing of something in consideration of 
other party's act or promise; neither party being bound 
unless both are bound. Aden v. Dalton, 341 Mo. 454, 
107 S.W.2d 1070, 1073. Called, also, mutuality of obli
gation. United Appliance Corporation v. Boyd, Tex.Civ. 
App., 108 S.W.2d 760, 764. 
As to mutuality of Assent, Mistake, etc., see those 
titles. 
Mutuality doctrine. Doctrine in equity to the effect 
that equitable relief will be denied a party to a contract 
on a showing that the plaintiff is not bound to the same 
extent as the defendant in fulfilling the contract. In 
another context, it refers to the obligation of a meeting 
of the minds before a contract can be found. See Mutual
ity of obligation. 
Mutuality of estoppel. This doctrine dictates that a 
judgment will not be held conclusive in favor of one 
person unless it would be conclusive against him had the 
case been decided the other way. Foltz v. Pullman, Inc., 
Del.Super., 319 A.2d 38, 41. 
Mutuality of obligation. Mutuality of obligation re
quires that unless both parties to a contract are bound, 
neither is bound. Sala & Ruthe Realty, Inc. v. Camp
bell, 89 Nev. 483, 515 P.2d 394, 396. Such obligation as 
pertaining to executory contract requires that each par
ty to agreement be bound to perform, and if it appears 
that one party was never bound to do the acts which 
formed the consideration for promise of the other, there 
is lack of mutuality of obligation and other party is not 
bound. McCandles v. Schick, 85 Idaho 509, 380 P.2d 
893, 898. See Mutuality doctrine. 
Mutuality of remedy. In equity, one party to a contract 
may not have equitable relief if he is not bound by the 
contract to the same extent as the other party, or if his 
remedy is not co-extensive. Generally, specific perform
ance will be granted only where there is "mutuality of 
remedy", which means that right to performance must 
be mutual. Burr v. Greenland, Tex.Civ.App., 356 
S.W.2d 370, 375. 
Mutual mistake. As justifying reformation of an instru
ment is one common to both or all parties, where each 
MUTUS ET SURDUS 
party labors under the same misconception respecting a 
material fact, the terms of the agreement, or the provi
sion of a written instrument designed to embody such an 
agreement. RGS, Cardox Recovery, Inc. v. Dorchester 
Enhanced Recovery Co., Tex.App. 13 Dist., 700 S.W.2d 
635, 639. Mutual mistake with regard to contract, justi
fying reformation, exists where there has been a meet
ing of the minds of the parties and an agreement actual
ly entered into but the agreement in its written form 
does not express what was really intended by the par
ties. Sierra Blanca Sales Co., Inc. v. Newco Industries, 
Inc., App., 84 N.M. 524, 505 P.2d 867, 873. 
Mutual relief association. An insurer, chartered under 
a designated statute, having no capital stock, having 
relief funds created and sustained by assessments made 
upon the members, which files reports with insurance 
commissioner evidencing that it is not conducted for 
profit of its officers. State v. Texas Mut. Life Ins. Co. of 
Texas, Tex.Civ.App., 51 S.W.2d 405, 412. 
Mutual rescission. An agreement between the parties 
to cancel their contract, releasing the parties from fur
ther obligations under the contract. The object of the 
agreement is to restore the parties to positions they 
would have occupied had no contract ever been made. 
See also Rescission of contract. 
Mutual reserve company. A company issuing "benefit 
thrift certificates" containing both savings features and 
renewable term insurance features, paid for by a single 
premium, with cash and loan values and limitation upon 
the expense liable for cost of supervision and manage
ment, was a "mutual reserve company". 
Mutual savings bank. A bank organized by depositors, 
whose interest is shown by certificates of deposit, for the 
purpose of furnishing a safe depositary for money of 
members. It need not be incorporated or under supervi
sion unless state law so requires. A-C Investment Ass'n 
v. Helvering, 62 App.D.C. 339, 68 F.2d 386, 387. A 
banking institution in which the depositors are the 
owners and which has no capital stock. See also Savings 
and Loan Association. 
Mutual wills. Those made as the separate wills of two 
people which are reciprocal in provisions. Or those 
executed pursuant to agreement or compact between 
two or more persons to dispose of their property in 
particular manner, each in consideration of the other's 
doing so. See Reciprocal wills. 
Mutuant. The person who lends chattels in the contract 
of mutuum (q.v.). 
Mutuari Imyuwtyuweray/. To borrow; mutuatus, a bor
rowing. 
Mutuary Imyuwtyuwehriy/. A person who borrows per
sonal chattels to be consumed by him and returned to 
the lender in kind and quantity; the borrower in a 
contract of mutuum. 
Mutuatus Imyuwtyuweyt�s/. A loan of money. 
Mutus et surdus Imyuwt�s et s�rd�s/. Lat. In civil and 
old English law, dumb and deaf.

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N 
N.A. An abbreviation for "non allocatur':' it is not 
allowed. Also sometimes used as abbreviation for "not 
available" or "not applicable". 
Naam Imi!m/. Sax. The attaching or taking of movable 
goods and chattels, called "vir" or "mort" according as 
the chattels were living or dead. 
Naif Inayiyf/. L. Fr. A villein; a born slave; a bond
woman. 
Nail. A lineal measure of two inches and a quarter. 
Naked. Bare; wanting in necessary conditions; incom
plete, as a naked contract (nudum pactum), i.e., a con
tract devoid of consideration, and therefore invalid; or, 
simple, unilateral, comprising but a single element, as a 
naked authority, i.e., one which is not coupled with any 
interest in the agent, but subsists for the benefit of the 
principal alone. 
As to naked Confession; Deposit; Option; Possession; 
Possibility; Power; Promise; and Trust, see those titles. 
Nam Imi!m/. In old English law, a distress or seizure of 
chattels. 
As a Latin conjunction, for; because. Often used by 
the old writers in introducing the quotation of a Latin 
maxim. 
Namare Inameriy/. L. Lat. In old English law, to take, 
seize or distrain. 
Namatio Inameysh(iy)ow/. L. Lat. In old English and 
Scotch law, a distraining or taking of a distress; an 
impounding. 
Name. The designation of an individual person, or of a 
firm or corporation. Word or combination of words used 
to distinguish person or thing or class from others. 
Wilty v. Jefferson Parish Democratic Executive Commit
tee, 245 La. 145, 157 So.2d 718, 723. 
A person's "name" consists of one or more Christian 
or given names and one surname or family name. It is 
the distinctive characterization in words by which one is 
known and distinguished from others, and description, 
or abbreviation, is not the equivalent of a "name." 
See also Alias; Christian name; Corporate name; Ficti
tious name; Full name; Generic (Generic name); Legal 
name; Nickname; Street name; Surname; Tradename. 
Corporate name. Most states require corporations doing 
business under an assumed or fictitious name to reg
ister, record, or register and record, the name with state, 
county, or state and county officials. 
Distinctive name. As used in regulation of United 
States Department of Agriculture, a trade, arbitrary, or 
fancy name which clearly distinguishes a food product, 
mixture, or compound from any other food product, 
mixture, or compound. U. S. v. Forty Barrels and 
Twenty Kegs of Coca Cola, 241 U.S. 265, 36 S.Ct. 573, 
580, 60 L.Ed. 995. 
Generic name. The general or nontrademark name of a 
product. For example, the trade names of a particular 
type of fiber may be Antron, Cantrece, Qiana; but the 
generic name of that fiber is nylon. 
Name and arms clause. The popular name in English 
law for the clause, sometimes inserted in a will or 
settlement by which property is given to a person, for 
the purpose of imposing on him the condition that he 
shall assume the surname and arms of the testator or 
settlor, with a direction that, if he neglects to assume or 
discontinues the use of them, the estate shall devolve on 
the next person in remainder, and a provision for pre
serving contingent remainders. 
Named insured. In insurance, the person specifically 
designated in the policy as the one protected and, com
monly, it is the person with whom the contract of 
insurance has been made. 
Namely. A difference, in grammatical sense, in strict
ness exists between the words namely and including. 
Namely imports interpretation, i.e., indicates what is 
included in the previous term; but including imports 
addition, i.e., indicates something not included. 
Namium Ineymiyam/. L. Lat. In old English law, a 
taking; a distress. Things, goods, or animals taken by 
way of distress. Simplex namium, a simple taking or 
pledge. 
Namium vetitum Ineymiyam vetadam/. An unjust tak
ing of the cattle of another and driving them to an 
unlawful place, pretending damage done by them. 
Nantissement Inontismon/. In French law, the con
tract of pledge; if of a movable, it is called "gage; " and 
if of an immovable, it is called "antichrese." 
Narcoanalysis. Process whereby a subject is put to 
sleep, or into a semi-somnolent state by means of chemi
cal injections and then interrogated while in this dream
like state. 
Narcotics. Generic term for any drug which dulls the 
senses and commonly becomes addictive after prolonged 
use. An addictive or otherwise harmful drug, the manu-
1023

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NARCOTICS 
facture, importation, sale, or possession of which is stat
utorily prohibited. 21 U.S.C.A. § 801 et seq. 
NAR. National Association of Realtors. 
Narr. A common abbreviation of "narratio" (q.v.). A 
declaration in an action. 
Narr and cognovit law. Law providing that judgment 
may be had for plaintiff on notes by confession of any 
attorney that amount shown on notes, together with 
interest and costs, constitutes legal and just claim; word 
"narr" being an abbreviation of Latin word "narratio," 
meaning complaint or petition, and word "cognovit" 
meaning that defendant has confessed judgment and 
justice of claim. Dyer v. Johnson, Tex.Civ.App., 19 
S.W.2d 421, 422. See Judgment (Confession of judgment). 
Narratio /n;:)reysh(iy)ow/. Lat. One of the common law 
names for a plaintiffs count or declaration, as being a 
narrative of the facts on which he relies. 
Narrative evidence. Testimony from a witness which 
he is permitted to give without the customary questions 
and answers; e.g. when witness explains in detail what 
happened without interruption. 
Narrator. A countor; a pleader who draws narrs. Ser
viens narrator, a serjeant at law. 
Narrow seas. Those seas which run between two coasts 
not far apart. The term is sometimes applied to the 
English channel. 
NASA. National Aeronautics and Space Administra
tion. 
Nasciturus /nres;:)t(y)ur;:)s/. Lat. That shall hereafter be 
born. A term used in marriage settlements to designate 
the future issue of the marriage, as distinguished from 
"natus, " a chilq. already born. 
NASD. The National Association of Securities Dealers, 
Inc. An association of brokers and dealers empowered 
to regulate the over-the-counter securities business. 
The Association has the power to expel members who 
have been declared guilty of unethical practices. 
NASDAQ. National Association of Securities Dealers 
Automated Quotations. An information system which 
gives price quotations on securities traded over-the-coun
ter to brokers and dealers. The system is automated. 
Natale /n;:)teyliy/. The state and condition of a man 
acquired by birth. 
Nati et nascituri /neytay et nres;:)t(y)uray/. Born and to 
be born. All heirs, near and remote. 
Natio /neysh(iy)ow/. In old records, a native place. 
Nation. A people, or aggregation of men, existing in the 
form of an organized jural society, usually inhabiting a 
distinct portion of the earth, speaking the same lan
guage, using the same customs, possessing historic conti
nuity, and distinguished from other like groups by their 
racial origin and characteristics, and generally, but not 
necessarily, living under the same government and sov
ereignty. Montoya v. U. S., 180 U.S. 261, 21 S.Ct. 358, 
45 L.Ed. 521. 
1024 
In American constitutional law the word "state" is 
applied to the several members of the American Union, 
while the word "nation" is applied to the whole body of 
the people embraced within the jurisdiction of the feder
al government. 
National. Pertaining or relating to a nation as a whole. 
Commonly applied in American law to institutions, 
laws, or affairs of the United States or its government, 
as opposed to those of the several states. "National" 
contemplates an activity with a nationwide scope. In re 
National Foundation for Diarrheal Diseases, 8 Misc.2d 
12, 164 N.Y.S.2d 177, 178. See also Federal. 
A person owing permanent allegiance to a state. 8 
U.S.C.A. § 1101. 
The term "national" as used in the phrase "national 
of the United States" is broader than the term "citizen". 
Brassert v. Biddle, D.C.Conn., 59 F.Supp. 457, 462. 
National bank. A bank incorporated and doing busi
ness under the laws of the United States, whose charter 
is approved by the Comptroller of the Currency as 
distinguished from a state bank, which derives its pow
ers from the authority of a particular state. Most such 
banks are members of the Federal Reserve System and 
the Federal Deposit Insurance Corporation. See Member 
Bank. 
National currency. Legal tender; that which circulates 
as money. Notes issued by national banks, and by the 
United States government. See Currency; Federal Re
serve notes; Legal tender. 
National debt. The money owing by government to 
some of the public or to financial institutions, consisting 
of such obligations as Treasury bills, notes, and bonds, 
the interest of which is paid out of the taxes raised by 
the whole of the public (i.e. out of general revenues). 
National defense. A generic concept that refers to the 
military and naval establishments and the related activ
ities of national preparedness and includes all matters 
directly and reasonably connected with the defense of 
the nation against its enemies. Gorin v. United States, 
312 U.S. 19,61 S.Ct. 429, 434, 436, 85 L.Ed. 488. Implic
it in the term "national defense" is the notion of defend
ing those values and ideals which set this nation apart. 
U.S. v. Robel, Wash., 389 U.S. 258, 88 S.Ct. 419, 424, 19 
L.Ed.2d 508. 
National domain. See Domain. 
National domicile. See Domicile. 
National emergency. A state of national crisis; a situa
tion demanding immediate and extraordinary national 
or federal action. Congress has made little or no dis
tinction between a "state of national emergency" and a 
"state of war". Brown v. Bernstein, D.C.Pa., 49 F.Supp. 
728, 732. 
National Environmental Policy Act. Federal Act set
ting forth declaration of national environmental policy 
and goals. Major provision requires that every federal 
agency submit an environmental impact statement with 
every legislative recommendation or program affecting

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1025 
the quality of the environment. 42 U .S.C.A. § 4321 et 
seq. See Environmental impact statements. 
National government. The government of a whole na
tion, as distinguished from that of a state, local or 
territorial division of the nation, and also as distin
guished from that of a league or confederation. Com
monly referred to as the "federal government". 
National Guard. Organization of men maintained as a 
reserve for the U.S. Army and Air Force. Members 
serve on a state-wide basis but are subject to being 
activated for federal service as well as for state emergen
cies. 
Nationality. That quality or character which arises 
from the fact of a person's belonging to a nation or state. 
Nationality determines the political status of the indi
vidual, especially with reference to allegiance; while 
domicile determines his civil status. Nationality arises 
either by birth or by naturalization. See also Naturaliza
tion. 
Nationality Act. Shortened name for Immigration and 
Nationality Act which is a comprehensive federal stat
ute embracing such matters as immigration, naturaliza
tion and admission of aliens. 8 U.S.C.A. § 1101 et seq. 
Nationalization. The acquisition and control of private
ly owned business by government. See also Denational
ization. 
National Labor Relations Act. A federal statute 
known as the Wagner Act of 1935 and amended by the 
Taft-Hartley Act of 1947; it is comprehensive legislation 
regulating the relations between employers and employ
ees, including supervised elections, and establishing Na
tional Labor Relations Board. 29 U.S.C.A. § 151 et seq. 
National Labor Relations Board. The National Labor 
Relations Board is an independent agency created by the 
National Labor Relations Act of 1935 (Wagner Act), as 
amended by the acts of 1947 (Taft-Hartley Act) and 1959 
(Landrum-Griffin Act). 29 U.S.C.A. § 153. 
The Board has two principal functions under the act: 
preventing and remedying unfair labor practices by em
ployers and labor organizations or their agents, and 
conducting secret ballot elections among employees in 
appropriate collective-bargaining units to determine 
whether or not they desire to be represented by a labor 
organization. The Board also conducts secret ballot 
elections among employees who have been covered by a 
union-shop agreement to determine whether or not they 
wish to revoke their union's authority to make such 
agreements; in jurisdictional disputes, decides and de
termines which competing group of workers is entitled 
to perform the work involved; and conducts secret ballot 
elections among employees concerning employers' final 
settlement offers in national emergency labor disputes. 
National Mediation Board. The National Mediation 
Board was created on June 21, 1934, by an act of 
Congress amending the Railway Labor Act (48 Stat. 
1185, 45 U.S.C.A. § 154). 
The Board's major responsibilities are: (1) the media
tion of disputes over wages, hours, and working condi-
NATIVAS 
tions which arise between rail and air carriers and 
organizations representing their employees, and (2) the 
investigation of representation disputes and certification 
of employee organizations as representatives of crafts or 
classes of carrier employees. 
National origin. In equal employment opportunities 
provisions of Civil Rights Act, term "national origin" on 
its face refers to country where person was born, or, 
more broadly, country from which his or her ancestors 
came, and was not intended to embrace requirement of 
United States citizenship. Espinoza v. Farah Mfg. Co., 
Inc., Tex., 414 U.S. 86, 94 S.Ct. 334, 336, 38 L.Ed.2d 287. 
National Service Life Insurance. Special type of life 
insurance for military and naval personnel during and 
after their service created by the National Service Life 
Insurance Act of 1940 and containing highly favorable 
rates and terms. 
Nations, law of. See International law. 
Native. A natural-born subject or citizen; a citizen by 
birth; one who owes his domicile or citizenship to the 
fact of his birth within the country referred to. The 
term may also include one born abroad, if his parents 
were then citizens of the country, and not permanently 
residing in foreign parts. U. S. v. Wong Kim Ark, 169 
U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. 
The word "natives", as used in Alien Enemy Act, 
refers to person's place of birth, so that a person re
mains a native of country of his birth, though he has 
moved away therefrom. United States ex reI. D'Esquiva 
v. Uhl, C.C.A.N.Y., 137 F.2d 903, 905. 
Native born. See Native. 
Nativi conventionarii In:::ltayvay k:::lnvensh(iY):::Ineriyay/. 
Villeins or bondmen by contract or agreement. 
Nativi de stipite In:::ltayvay diy stip:::ldiy/. Villeins or 
bondmen by birth or stock. 
Nativitas In:::ltiv:::ltres/. Villenage; that state in which 
men were born slaves. 
Nativo habendo In:::ltayvow h:::lb€mdow/. In old English 
law, a writ which lay for a lord when his villein had run 
away from him. It was directed to the sheriff, and 
commanded him to apprehend the villein, and to restore 
him together with his goods to the lord. 
Nativus In:::ltaYV:::ls/. Lat. In old English law, a native; 
specifically, one born into a condition of servitude; a 
born serf or villein. 
Natura appetit perfectum; ita et lex In:::ltyur:::l :::Ipet:::lt 
p:::lrfekt:::lm; ayt:::l est leks/. Nature covets perfection; so 
does law also. 
Naturre vis maxima; natura bis maxima In:::ltyuriy vis 
mreks:::lm:::l; n:::ltyur:::l bis mreks:::lm:::l/. The force of nature 
is greatest; nature is doubly great. 
Natura fide jussionis sit strictissimi juris et non du
rat vel extendatur de re ad rem, de persona ad 
personam, de tempore ad tempus In:::ltyur:::l faydiy 
j�siy6wn:::ls sit striktis:::lmay Jur:::lS et non dyur:::lt vel 
ekstendeyt:::lr diy riy red rem, diy p:::lrsown:::l red

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NATURAL 
p;)rsown;)m, diy temp;)riy red temp;)s/. The nature of the 
contract. of suretyship is strictissimi juris, and cannot 
endure nor be extended from thing to thing, from person 
to person, or from time to time. 
Natural. Untouched by man or by influences of civiliza
tion; wild; untutored, and is the opposite of the word 
"artificial". Department of Public Works and Bldgs. for 
and in Behalf of People v. Keller, 22 Ill.App.3d 54, 316 
N.E.2d 794, 796. The juristic meaning of this term does 
not differ from the vernacular, except in the cases where 
it is used in opposition to the term "legal;" and then it 
means proceeding from or determined by physical 
causes or conditions, as distinguished from positive en
actments of law, or attributable to the nature of man 
rather than to the commands of law, or based upon 
moral rather than legal considerations or sanctions. 
As to natural Allegiance; Boundary; Channel; Child; 
Children; Day; Death; Domicile; Equity; Fruit; Guardian; 
Heirs; Infancy; Liberty; Obligation; Person; Possession; 
Presumption; Rights; Succession; Water
course, and Year, see those titles. 
Natural affection. Such as naturally subsists between 
near relatives, as a father and child, brother and sister, 
husband and wife. This is regarded in law as a good 
consideration. See Nudum pactum. 
Natural and probable consequences. Those conse
quences that a person by prudent human foresight can 
anticipate as likely to result from an act, because they 
happen so frequently from the commission of such an 
act that in the field of human experience they may be 
expected to happen again. Pope v. Pinkerton-Hays 
Lumber Co., Fla.App., 120 So.2d 227, 230. 
Natural born citizen. Persons who are born within the 
jurisdiction of a national government, i.e., in its territo
rial limits, or those born of citizens temporarily residing 
abroad. See Jus soli; Naturalization clause. 
Natural-born subject. In English law, one born within 
the dominions, or rather within the allegiance, of the 
king of England. Governed by the British Nationality 
Act, 1981, and the Immigration Act, 1971. 
Natural consequences. See Natural and probable conse
quences. 
Natural death. Death from causes other than accident 
or violence. Also called death from natural causes. 
Natural Death Acts. See Right to die laws; Will (Living 
will). 
Naturale est quidlibet dissolvi eo modo quo ligatur 
/nrety;)reyliy est kwidl;)b;)t d;)zolvay iyow mowdow kwow 
l;)geyt;)r / . It is natural for a thing to be unbound in the 
same way in which it was bound. 
Natural flood channel. A channel beginning at some 
point on banks of stream and ending at some other point 
lower down stream, through which flood waters natural
ly flow at times of high water. C. M. Bott Furniture Co. 
v. City of Buffalo, 131 Misc. 624, 227 N.Y.S. 660, 665. 
1026 
Naturalization. The process by which a person acquires 
nationality after birth and becomes entitled to the privi
leges of U.S. citizenship. 8 U.S.C.A. § 1401 et seq. 
In the United States collective naturalization occurs 
when designated groups are made citizens by treaty (as 
Louisiana Purchase), or by a law of Congress (as in 
annexation of Texas and Hawaii). Individual naturali
zation must follow certain steps: (a) petition for natural
ization by a person of lawful age who has been a lawful 
resident of the United States for 5 years; (b) investiga
tion by the Immigration and Naturalization Service to 
determine whether the applicant can speak and write 
the English language, has a knowledge of the fundamen
tals of American government and history, is attached to 
the principles of the Constitution and is of good moral 
character; (c) hearing before a U.S. District Court or 
certain State courts of record; and (d) after a lapse of at 
least 30 days a second appearance in court when the 
oath of allegiance is administered. 
Naturalization clause. The Fourteenth Amendment to 
the U.S. Constitution, Section 1, provides that all per
sons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the 
United States, and of the State wherein they reside. See 
Jus soli. 
Naturalization courts. Both federal and state courts of 
record have jurisdiction over naturalization matters. 8 
U.S.C.A. § 142l. 
Naturalized citizen. One who, being an alien by birth, 
has received U.S. citizenship under naturalizatIon laws. 
8 U.S.C.A. § 1421 et seq. 
Natural law. This expression, "natural law," or jus 
naturale, was largely used in the philosophical specula
tions of the Roman jurists of the Antonine age, and was 
intended to denote a system of rules and principles for 
the guidance of human conduct which, independently of 
enacted law or of the systems peculiar to any one people, 
might be discovered by the rational intelligence of man, 
and would be found to grow out of and conform to his 
nature, meaning by that word his whole mental, moral, 
and physical constitution. The point of departure for 
this conception was the Stoic doctrine of a life ordered 
"according to nature," which in its turn rested upon the 
purely supposititious existence, in primitive times, of a 
"state of nature;" that is, a condition of society in which 
men universally were governed solely by a rational and 
consistent obedience to the needs, impulses, and prompt
ings of their true nature, such nature being as yet 
undefaced by dishonesty, falsehood, or indulgence of the 
baser passions. In ethics, it consists in practical univer
sal judgments which man himself elicits. These express 
necessary and obligatory rules of human conduct which 
have been established by the author of human nature as 
essential to the divine purposes in the universe and have 
been promulgated by God solely through human reason. 
Natural life. The period of a person's existence con
sidered as continuing until terminated by physical disso
lution or death occurring in the course of nature; used 
in contradistinction to that juristic and artificial concep-

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1027 
tion of life as an aggregate of legal rights or the posses
sion of a legal personality, which could be terminated by 
"civil death" (q.v.), that is, that extinction of personality 
which resulted from entering a monastery or being 
attainted of treason or felony. 
Natural monument. Objects permanent in character 
which are found on the land as they were placed by 
nature, such as streams, lakes, ponds, shores, and beach
es; sometimes including highways and streets, walls, 
fences, trees, hedges, springs, and rocks, and the like. 
Natural object of testator's bounty. In testamentary 
law, term comprises whoever would take, in the absence 
of a will, because they are the persons whom the law has 
so designated, and in the ordinary case the law follows 
the normal condition of near relationship. 
Natural objects. In interpretation of boundaries term 
includes mountains, lakes, rivers, etc. See also Natural 
monument. 
Natural premium. Actual sum necessary to meet ma
turing death claims each year and is necessarily exceed
ed by the "net premium". Fox v. Mutual Ben. Life Ins. 
Co., C.C.A.Mo., 107 F.2d 715, 718. 
Natural resources. Any material in its native state 
which when extracted has economic value. Timberland, 
oil and gas wells, ore deposits, and other products of 
nature that have economic value. The cost of natural 
resources is subject to depletion. Often called "wasting 
assets." 
The term includes not only timber, gas, oil, coal, 
minerals, lakes, and submerged lands, but also, features 
which supply a human need and contribute to the 
health, welfare, and benefit of a community, and are 
essential to the well-being thereof and proper enjoyment 
of property devoted to park and recreational purposes. 
Natural rights. Those which grow out of nature of man 
and depend upon his personality and are distinguished 
from those which are created by positive laws enacted 
by a duly constituted government to create an orderly 
civilized society. In re Gogabashvele's Estate, 195 Cal. 
App.2d 503, 16 Cal.Rptr. 77, 91. 
Natura non facit saltum; ita nec lex /n;}tyur;} non 
feys;}t solt;}m; a;Yt;} nek leks/. Nature makes no leap 
[no sudden or irregular movement]; so neither does law. 
Applied in old practice to the regular observance of the 
degrees in writs of entry, which could not be passed over 
per saltum. 
Natura non facit vacuum, nec lex supervacuum 
/n;}tyur;} non feys;}t vrekyuw;}m, nek leks s(y)uwp;}r
vrekyuw;}m/. Nature makes no vacuum, the law noth
ing purposeless. 
Nature. A kind, sort, type, order; general character. In 
re Utility Local Imp. Dist. No. 1 of Water Dist. No. 2, 
Grays Harbor County, 53 Wash.2d 270, 333 P.2d 670, 
673. 
Natus /neyt;}s/. Lat. Born, as distinguished from nasci
turus, about to be born. Ante natus, one born before a 
particular person or event, e.g., before the death of his 
NAVIGABLE RIVER OR STREAM 
father, before a political revolution, etc. Post natus, one 
born after a particular person or event. 
Nauclerus /nOklir;}s/. Lat. In the civil law, the master 
or owner of a merchant vessel. 
Naulage /noleyj/. The freight of passengers in a ship. 
Naulum /nol;}m/. In the civil law, the freight or fare 
paid for the transportation of cargo or passengers over 
the sea in a vessel. This is a Latinized form of a Greek 
word. 
Nauta /not;}/. Lat. In the civil and maritime law, a 
sailor; one who works a ship. Any one who is on board 
a ship for the purpose of navigating her. The employer 
of a ship. 
Nautical. Pertaining to ships or to the art of navigation 
or the business of carriage by sea. See also Marine. 
Nautical assessors. Experienced shipmasters, or other 
persons having special knowledge of navigation or nauti
cal affairs, who are called to the assistance of a court of 
admiralty, in difficult cases involving questions of negli
gence, and who sit with the judge during the argument, 
and give their advice upon questions of seamanship or 
the weight of testimony. 
Nautical mile. See Mile. 
Nautica pecunia /not;}k;} p;}kyuwn(i)y;}/. A loan to a 
shipowner, to be repaid only upon the successful termi
nation of the voyage, and therefore allowed to be made 
at an extraordinary rate of interest (nauticum fre nus). 
Nauticum frenus /not;}k;}m fiyn;}s/. Lat. In the civil 
law, nautical or maritime interest; an extraordinary 
rate of interest agreed to be paid for the loan of money 
on the hazard of a voyage; corresponding to interest on 
contracts of bottomry or respondentia in English and 
American maritime law. 
Navagium /nreveyj(iy);}m/. In old English law, a duty 
on certain tenants to carry their lord's goods in a ship. 
Naval. Appertaining to the navy (q.v.). 
Naval base. See Base. 
Naval law. The system of regulations and principles for 
the government of the navy. See Code of Military Justice. 
Navarchus /nrevark;}s/. In the civil law, the master or 
commander of a ship; the captain of a man-of-war. 
Navicularius /n;}viky;}leriy;}s/. In the civil law, the 
master or captain of a ship. 
Navigable. See Navigable waters. 
Navigable in fact. Streams or lakes are navigable in 
fact when they are used or are susceptible of being used 
in their natural and ordinary condition as highways for 
commerce over which trade and travel are or may be 
conducted in the customary modes of trade and travel 
on water. Taylor Fishing Club v. Hammett, Tex.Civ. 
App., 88 S.W.2d 127, 129. See also Navigable waters. 
Navigable river or stream. At common law, a river or 
stream in which the tide ebbs and flows, or as far as the

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NAVIGABLE RIVER OR STREAM 
tide ebbs and flows. But as to the definition in Ameri
can law, see Navigable waters. 
Navigable sea. The "navigable sea" is divided into 
three zones: (1) nearest to the nation's shores are its 
internal or "inland waters"; (2) beyond the inland wa
ters, and measured from their seaward edge, is a belt 
known as the marginal or "territorial sea"; and (3) 
outside the territorial sea are the "high seas". U.S. v. 
State of La., 394 U.S. 11, 89 S.Ct. 773, 780, 788, 22 
L.Ed.2d 44. 
Navigable waters. Those waters which afford a chan
nel for useful commerce. 
Any body of water, navigable in fact, which by itself 
or by uniting with other waters forms a continuous 
highway over which commerce may be carried on with 
other states or countries. United States v. Appalachian 
Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 
243, rehearing denied 312 U.S. 712, 61 S.Ct. 548, 85 
L.Ed. 1143, petition denied 317 U.S. 594, 63 S.Ct. 67, 87 
L.Ed. 487. In determining whether water is "naviga
ble," the factual inquiry is whether the water has capa
bility of use by the public for the purpose of transporta
tion and commerce. U.S. v. Kaiser Aetna, C.A. Hawaii, 
584 F.2d 378, 38l. 
A water is "navigable," for purposes of admiralty 
jurisdiction, provided that it is used or susceptible of 
being used as an artery of commerce. Adams v. Mon
tana Power Co., C.A.Mont., 528 F.2d 437, 440. Rivers 
are "navigable" in fact when they are used, or are 
susceptible of being used, in their ordinary condition as 
highways for commerce over which trade and travel are 
or may be conducted in the customary modes of trade 
and travel on water. Madole v. Johnson, D.C.La., 241 
F.Supp. 379, 38l. 
Navigable waters of the United States. A body of 
water is "navigable water of the United States" if it is 
presently being used or is suitable for use for transporta
tion and commerce, or if it has been so used or was 
suitable for such use in the past, or if it could be made 
suitable for such use in the future by reasonable im
provements. U.S. v. Cannon, D.C.DeL, 363 F.Supp. 
1045, 1050. Such waters have been held to include the 
high seas, which begin at a line three miles offshore. 
Reynolds v. Ingalls Shipbuilding Div., Litton Systems, 
Inc., C.A. Miss., 788 F.2d 264, 268. 
Navigate. To journey by water; to go in a vessel; to sail 
or manage a vessel; to use the waters as a highway for 
commerce or communication; to ply. To direct one's 
course through any medium; to steer, especially to 
operate an airplane or airship. United States v. Mon
stad, C.C.A.CaL, 134 F.2d 986, 987, 988. 
Navigation. The act or the science or the business of 
traversing the sea or other navigable waters in ships or 
vessels. The Silvia, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 
24l. 
Regular navigation. In this phrase, the word "regular" 
may be used in contradistinction to "occasional," rather 
than to "unlawful," and refer to vessels that, alone or 
1028 
with others, constitute lines, and not merely to such as 
are regular in the sense of being properly documented 
under the laws of the country to which they belong. 
Rules of navigation. Rules and regulations adopted by 
commercial nations to govern the steering and manage
ment of vessels approaching each other at sea so as to 
avoid the danger of collision or fouling. 
Navigational visibility. Visibility as affecting speed 
with reference to distance within which boat in fog 
could be brought to stop, before any course of any vessel 
emerging from fog on either side would cross her 
projected course alongside the fog bank at its nearest 
point. The Silver Palm, C.C.A.CaL, 94 F.2d 754, 767. 
Navigation servitude. Public right of navigation for 
the use of the people at large. United States v. 412.715 
Acres of Land, Contra Costa County, CaL, D.C.CaL, 53 
F.Supp. 143, 148, 149. 
Navis /neyv';}s/. Lat. A ship; a vesseL 
Navy. A fleet of ships; the aggregate of vessels of war 
belonging to a nation. In a broader sense, and as 
equivalent to "naval forces," the entire corps of officers 
and men enlisted in the naval service and who man the 
public ships of war, including in this sense, in the 
United States, the officers and men of the Marine Corps. 
Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618; U. 
S. v. Dunn, 120 U.S. 249, 7 S.Ct. 507, 30 L.Ed. 667. One 
of the Armed Forces of the United States. 
Navy Department. Part of the Department of Defense, 
presided over by the Secretary of the Navy, who is 
responsible to the Secretary of Defense for the operation 
and efficiency of the Navy. (10 U.S.C.A. § 5031). The 
primary mission of the Navy is to protect the United 
States, as directed by the President or the Secretary of 
Defense, by the effective prosecution of war at sea in
cluding, with its Marine Corps component, the seizure or 
defense of advanced naval bases; to support, as re
quired, the forces of all military departments of the 
United States; and maintain freedom of the seas. 
Nazeranna /ml!z';}rren';}/. In old English law, a sum paid 
to government as an acknowledgment for a grant of 
lands, or any public office. 
N.B. An abbreviation for "nota bene," mark well, ob
serve; also "nulla bona," no goods. 
N.C.D. Nemine contra dicente. No one dissenting. 
N.D. An abbreviation for "Northern District," e.g. U.S. 
District Court for Northern District of N.Y. 
Ne admittas /niy ';}dmit';}s/. Lat. In ecclesiastical law, 
the name of a prohibitory writ, directed to the bishop, at 
the request of the plaintiff or defendant, where a quare 
impe(f,it is pending, when either party fears that the 
bishop will admit the other's clerk pending the suit 
between them. 
Neap tide /niyp tayd/. When the moon is in its first 
and third quarters, the tides do not rise as high, nor fall 
as low, as on the average; at such times the tides are

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1029 
known as uneap tides." Borax Consolidated v. City of 
Los Angeles, Cal., 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9. 
Near. Proximate; close-by; about; adjacent; contig
uous; abutting. The word as applied to space is a 
relative term without positive or precise meaning, de
pending for its signification on the subject-matter in 
relation to which it is used and the circumstances under 
which it becomes necessary to apply it to surrounding 
objects. Closely akin or related by blood; as, a near 
relative. Close to one's interests and affections, etc.; 
touching or affecting intimately, as one's near affairs, 
friends. Not far distant in time, place or degree; not 
remote; adjoining. Zeigenfus v. Snelbaker, 38 N.J.Su
per. 304, 118 A.2d 876, 879. 
Near money. Liquid assets which are readily convert
ible into money. 
Neat, net. The clear weight or quantity of an article, 
without the bag, box, keg, or other thing in which it may 
be enveloped. 
Ne baila pas /n� ooyl� pal. L. Fr. He did not deliver. 
A plea in detinue, denying the delivery to the defendant 
of the thing sued for. 
Necation. The act of killing. 
Nec curia deficeret in justitia exhibenda /nek kyuriy� 
d�fis�r�t in j�stish(iy)� egz�bend�/. Nor should the court 
be deficient in showing justice. 
Necessaries. An article which a party actually needs. 
State v. Earnest, Mo.App., 162 S.W.2d 338, 341. Things 
indispensable, or things proper and useful, for the sus
tenance of human life. 
Necessaries consist of food, drink, clothing, medical 
attention, and a suitable place of residence, and they are 
regarded as necessaries in the absolute sense of the 
word. However, liability for necessaries is not limited 
to articles required to sustain life; it extends to articles 
which would ordinarily be necessary and suitable, in 
view of the rank, position, fortune, earning capacity, and 
mode of living of the individual involved. 
Whether attorney's services are to be considered "nec
essaries" depends on whether there is necessity therefor. 
Fenn v. Hart Dairy Co., 231 Mo.App. 1005, 83 S.W.2d 
120, 124. But such services are usually "necessaries". 
Leonard v. Alexander, 50 Cal.App.2d 385, 122 P.2d 984, 
986. 
What constitutes "necessaries" for which an admiral
ty lien will attach depends upon what is reasonably 
needed in the ship's business, regard being had to the 
character of the voyage and the employment in which 
the vessel is being used. Walker Skageth Food Stores v. 
The Bavois, D.C.N.Y., 43 F.Supp. 109, 110, 111. 
See also Necessary; Necessitous circumstances; Sup
port. 
Necessaries, doctrine of. One who sells goods to a wife 
or child may charge the husband or father if the goods 
are required for their sustenance or support. 
Necessarily included offense. For a lesser offense to 
be "necessarily included" in offense charged, within 
NECESSARY AND PROPER CLAUSE 
lesser included offense rule, it must be such that the 
greater offense cannot be committed without also com
mitting the lesser. Kelly v. U. S., 125 U.S.App.D.C. 205, 
370 F.2d 227, 228. "Lesser offense" is "necessarily 
included" in a graver offense if the greater of the 
offenses includes all the legal and factual elements of 
the lesser. State v. Umfleet, Mo.App., 538 S.W.2d 55, 
59. See Fed.R.Crim.P. 31(c). See also Lesser included 
offense. 
Necessarium est quod non potest aliter se habere 
/nes�seriy�m est kwod non p6wt�st rel�t�r siy h�biriy/. 
That is necessary which cannot be otherwise. 
Necessarius /nes�seriy�s/. Lat. Necessary; unavoid
able; indispensable; not admitting of choice or the ac
tion of the will; needful. 
Necessary. This word must be considered in the connec
tion in which it is used, as it is a word susceptible of 
various meanings. It may import absolute physical ne
cessity or inevitability, or it may import that which is 
only convenient, useful, appropriate, suitable, proper, or 
conducive to the end sought. It is an adjective express
ing degrees, and may express mere convenience or that 
which is indispensable or an absolute physical necessity. 
It may mean something which in the accomplishment of 
a given object cannot be dispensed with, or it may mean 
something reasonably useful and proper, and of greater 
or lesser benefit or convenience, and its force and mean
ing must be determined with relation to the particular 
object sought. Kay County Excise Board v. Atchison, T. 
& S. F. R. Co., 185 Okl. 327, 91 P.2d 1087, 1088. 
In eminent domain proceedings, it means land reason
ably requisite and proper for accomplishment of end in 
view, not absolute necessity of particular location. 
State v. Whitcomb, 94 Mont. 415, 22 P.2d 823. 
With respect to taxation (i.e. deduction of necessary 
expenses is carrying on trade or business), means appro
priate and helpful in furthering the taxpayer's business 
or income producing activity. I.R.C. §§ 162(a) and 212. 
See also Ordinary (Ordinary expenses). 
As to necessary Damages; Deposit; Domicile; Implica
tion; Intromission; Repair; and Way, see those titles. 
See also Necessaries; Necessity. 
Necessary and proper. Words "necessary and proper" 
mean appropriate and adapted to carrying into effect 
given object. Petition of Public Service Coordinated 
Transport, 103 N.J.Super. 505, 247 A.2d 888, 891. 
Necessary and proper clause. Art. I, § 8, par. 18 of 
U.S. Constitution, which authorizes Congress to make 
all laws necessary and proper to carry out the enumerat
ed powers of Congress and all other powers vested in the 
government of the United States or any department or 
officer thereof. See Penumbra doctrine. 
These words are not limited to such measures as are 
absolutely and indispensably necessary, without which 
the powers granted must fail of execution, but they 
include all appropriate means which are conducive or 
adapted to the end to be accomplished, and which, in the 
judgment of Congress will most advantageously effect it.

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NECESSARY AND PROPER CLAUSE 
Julliard v. Greenman, 110 u.s. 421, 440, 4 S.Ct. 122, 28 
L.Ed. 204. The "necessary and proper" clause of the 
federal Constitution is not a grant of power but a decla
ration that Congress possesses all of the means neces
sary to carry out its specifically granted powers. Kinsel
la v. U.S., 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268. 
Necessary inference. One which is inescapable or un
avoidable from the standpoint of reason. Taylor v. 
Twiner, 193 Miss. 410, 9 So.2d 644, 646. 
Necessary parties. In pleading and practice, those per
sons who must be joined in an action because, inter alia, 
complete relief cannot be given to those already parties 
without their joinder. Fed.R.Civil P. 19(a). 
Necessary parties are those who must be included in 
action either as plaintiffs or defendants, unless there is 
a valid excuse for their nonjoinder. City of Hutchinson 
for Human Relations Commission of Hutchinson v. 
Hutchinson, Kansas Office of Kansas State Employment 
Service, 213 Kan. 399, 517 P.2d 117, 122. Those persons 
who have such an interest in controversy that a final 
judgment or decree cannot be made without either af
fecting their interests or leaving the controversy in such 
a condition that its final adjudication may be wholly 
inconsistent with equity and good conscience. Royal 
Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 
313, 314. A "necessary party" is one whose joinder is 
required in order to afford the plaintiff the complete 
relief to which he is entitled against the defendant who 
is properly suable in that county. Orange Associates, 
Inc. v. Albright, Tex.Civ.App., 548 S.W.2d 806, 807. 
See also Indispensable parties; Joinder; Parties. 
Necessitas /n�ses�tres/. Lat. Necessity; a force, power, 
or influence which compels one to act against his will. 
Necessitas culpabilis /n�ses�tres k;}lpeyb�bs/. Culpable 
necessity; unfortunate necessity; necessity which, while 
it excuses the act done under its compulsion, does not 
leave the doer entirely free from blame. The necessity 
which compels a man to kill another in self-defense is 
thus distinguished from that which requires the killing 
of a felon. 
Necessitas est lex temporis et loci /n�ses�tres est leks 
temp�r�s et lowsay/. Necessity is the law of time and of 
place. 
Necessitas excusat aut extenuat delictum in capitali
bus, quod non operatur idem in civilibus /n�ses�tres 
�kskyuwz�t ot �kstenyuw�t d�likt�m in krep�teyl�b�s 
kwod non op�reyt�r ayd�m �n s�vil�b�s/ . Necessity 
excuses or extenuates a delinquency in capital cases, 
which has not the same operation in civil cases. 
Necessitas facit licitum quod alias non est licitum 
/n�ses�tres feys�t lis�t�m kwod eyliy�s non est lis�t�m/. 
Necessity makes that lawful which otherwise is not 
lawful. 
Necessitas inducit privilegium quoad jura privata 
/n�ses�tres �nd(y)uws�t priv�liyj(i)y�m kwowred jUr� 
pr�veyt�/. Necessity gives a privilege with reference to 
private rights. The necessity involved in this maxim is 
of three kinds, viz.: (1) Necessity of self-preservation; (2) 
1030 
of obedience; and (3) necessity resulting from the act of 
God, or of a stranger. 
Necessitas non habet legem /n�ses�tres non heyb�t 
liyj�m/. Necessity has no law. 
Necessitas publica major est quam privata /n�ses�tres 
p�bl�k� meyj�r est kwrem pr�veyt�/. Public necessity is 
greater than private. "Death," it has been observed, "is 
the last and furthest point of particular necessity, and 
the law imposes it upon every subject that he prefer the 
urgent service of his king and country before the safety 
of his life." 
Necessitas quod cogit, defendit /n�ses�tres kwod kowj�t 
d�fend�t/. Necessity defends or justifies what it com
pels. Applied to the acts of a sheriff, or ministerial 
officer, in the execution of his office. 
Necessitas sub lege non continetur, quia quod alias 
non est licitum necessitas facit licitum /n�ses�tres s;}b 
liyjiy non kont�niyt�r, kway� kwod eyliy�s non est 
lis�bm n�ses�tres feys�t lis�t�m/. Necessity is not re
strained by law, since what otherwise is not lawful, 
necessity makes lawful. 
Necessitas vincet legem; legum vincula irridet 
/n�ses�tres vins�t liyj�m; liyg�m vilJky�b ir�det!. Ne
cessity overcomes law; it derides the fetters of laws. 
N ecessitas vincit legem; legum vincula irridet 
/n�ses�tres vins�t liyj�m; liyg�m vilJky�l� fr�det/. Ne
cessity overcomes law; it derides the fetters of laws. 
Necessities. See Necessaries. 
Necessitous /n�ses�t�s/. Indigent or pressed by poverty. 
See Indigent. 
Necessitous circumstances /n�ses�t�s s�rk�mstren
s�z/. Needing the necessaries of life, which cover not 
only primitive physical needs, things absolutely indis
pensable to human existence and decency, but those 
things, also, which are in fact necessary to the particu
lar person left without support. In the civil code of 
Louisiana the words are used relative to the fortune of 
the deceased and to the condition in which the claimant 
lived during the marriage. See also Necessaries; Non
support. 
Necessitudo /n�ses�t(y)uwdow/. Lat. In the civil law, 
an obligation; a close connection; relationship by blood. 
Necessity. Controlling force; irresistible compulsion; a 
power or impulse so great that it admits no choice of 
conduct. That which makes the contrary of a thing 
impossible. The quality or state of being necessary, in 
its primary sense signifying that which makes an act or 
event unavoidable. Quality or state of fact of being in 
difficulties or in need; a condition arising out of circum
stances that compels a certain course of action. Bykof
sky v. Borough of Middletown, D.C.Pa., 401 F.Supp. 
1242, 1250. See Irresistible impulse. 
A person is excused from criminal liability if he acts 
under a duress of circumstances to protect life or limb or 
health in a reasonable manner and with no other accept
able choice. See Justification; Self-defense.

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1031 
The word "necessity", within certificate of public con
venience and necessity, is not used in the sense of being 
essential or absolutely indispensable but merely that 
certificate is reasonably necessary for public good. Ala
bama Public Service Commission v. Crow, 247 Ala. 120, 
22 So.2d 721, 724. To fulfill requirements for easement 
of right of way of necessity, the necessity must be actual, 
real, and reasonable, as distinguished from inconven
ience, but it need not be absolute and irresistible neces
sity. When used in relation to power of eminent domain 
does not mean absolute necessity, but only reasonable 
necessity. The "necessity" of and appurtenance for the 
beneficial use of leased premises, which will entitle the 
lessee thereto, is not an absolute necessity in the sense 
that it must be completely indispensable, but is a real 
necessity and not a mere convenience or advantage. 
See also Necessaries; Necessary. 
Neck-verse. The Latin sentence, "Miserere mei, Deus," 
was so called, because the reading of it was made a test 
for those who claimed benefit of clergy. 
Necrophilism In�kr6f�liz�m/. See Insanity. 
Necropsy Inekropsiy/. An autopsy, or post-mortem ex
amination of a human body. 
Nec tempus nec locus occurrit regi Inek temp�s nek 
16wk�s �k�hr�t riyjay/. Neither time nor place affects 
the king. 
Nec veniam effuso sanguine casus habet Inek 
viyniy�m, �fyuwzow sreIJgw�niy, keys�s heyb�t/. Where 
blood is spilled, the case is unpardonable. 
Nec veniam, lreso numine, casus habet Inek viyniy�m, 
liyzow n(y)uwm�niy, keys�s heyb�t!. Where the Divini
ty is insulted the case is unpardonable. 
Ne disturba pas In� d�st:)rb� pal. L. Fr. (Does or did 
not disturb.) In old English practice, the general issue 
or general plea in quare impedit. 
Ne dona pas, or non dedit In� d6wn� pa/non diyd�t/. 
The general issue in a formedon, now abolished. It 
denied the gift in tail to have been made in manner and 
form as alleged; and was therefore the proper plea, if 
the tenant meant to dispute the fact of the gift, but did 
not apply to any other case. 
Nee. The name to which a person was born; this term is 
sometimes used after a woman's married name to indi
cate a maiden family name. 
Need. A relative term, the conception of which must, 
within reasonable limits, vary with the personal situa
tion of the individual employing it. Term means to 
have an urgent or essential use for (something lacking); 
to want, require. City of Dayton v. Borchers, 13 Ohio 
Misc. 273, 232 N.E.2d 437, 440. See Necessaries. 
Needful. Necessary, requisite, essential, indispensable. 
See Necessaries. 
Needless. In a statute against "needless" killing or 
mutilation of any animal, this term denotes an act done 
without any useful motive, in a spirit of wanton cruelty, 
or for the mere pleasure of destruction. 
NEGATIVE AVERMENT 
Needy. Indigent, necessitous, very poor. Nichols v. 
State Social Security Commission of Missouri, 349 Mo. 
1148, 164 S.W.2d 278, 280. See Indigent. 
Ne exeat Iniy eksiy�t/. A writ which forbids the person 
to whom it is addressed to leave the country, the state, 
or the jurisdiction of the court. It is the nature of civil 
bail, the purpose of which is to prevent the frustration 
of a plaintiffs equitable claims by insuring the contin
ued physical presence of the defendant within the 
court's jurisdiction. Gredone v. Gredone, D.C.App., 361 
A.2d 176, 179. Sometimes a ne exeat writ is issued only 
to restrain a person from leaving the jurisdiction, and 
sometimes it is issued against a person who is removing 
or attempting to remove property beyond the jurisdic
tion. August v. August, 65 Ga.App. 883, 16 S.E.2d 784, 
785. 
N e exeat regno I niy eksiy�t regnow I. Lat. In English 
practice, a writ which issues to restrain a person from 
leaving the kingdom. It was formerly used for political 
purposes, but is now only resorted to in equity when the 
defendant is about to leave the kingdom; it is only in 
cases where the intention of the party to leave can be 
shown that the writ is granted. 
Ne exeat republica Iniy eksiy�t r�p�bl�k�/. Lat. In 
American practice, a writ similar to that of ne exeat 
regno (q.v.), available to the plaintiff in a civil suit, 
under some circumstances, when the defendant is about 
to leave the state. 
Nefas Iniyfres/. Lat. That which is against right or the 
divine law. A wicked or impious thing or act. 
Nefastus In�frest�s/. Lat. Inauspicious. Applied, in 
the Roman law, to a day on which it was unlawful to 
open the courts or administer justice. 
Negate. To deny, negative, nullify or render ineffective. 
Negatio conclusionis est error in lege In�geysh(iy)ow 
k�nkluwz(h)iyown�s est ehr�r in liyjiy I. The denial of a 
conclusion is error in law. 
Negatio destruit negationem, et ambre faciunt affir
mationem In�geysh(iy)ow destruw�t n�geyshiy6wn�m 
ed rembiy feyshiy�nt ref�rmeyshiy6wn�m/. A negative 
destroys a negative, and both make an affirmative. 
Negatio duplex est affirmatio In�geysh(iy)ow d(y)uw
pleks est ref�rmeysh(iy)ow/. A double negative is an 
affirmative. 
Negative. A denial; a proposition by which something 
is denied; a statement in the form of denial. Two 
negatives do not make a good issue. 
As to negative Covenant; Easement; Servitude; Stat
ute; and Testimony, see those titles. 
Negative averment. As opposed to the traverse or 
simple denial of an affirmative allegation, a negative 
averment is an allegation of some substantive fact, e.g., 
that premises are not in repair, which, although nega
tive in form, is really affirmative in substance, and the 
party alleging the fact of non-repair must prove it. An 
averment in some of the pleadings in a case in which a

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NEGATIVE AVERMENT 
negative is asserted. U. S. v. Eisenminger, D.C.Del., 16 
F.2d 816, 819. 
Negative condition. One by which it is stipUlated that 
a given thing shall not happen. 
Negative covenant. A provision in an employment 
agreement or a contract of sale of a business which 
prohibits the employee or seller from competing in the 
same area or market. Such restriction must be reason
able in scope and duration. 
Negative easement. A right in owner of dominant 
tenement to restrict owner of servient tenement in exer
cise of general and natural rights of property. Fort 
Dodge, D. M. & S. Ry. v. American Community Stores 
Corp., 256 Iowa 1344, 131 N.W.2d 515, 521. An ease
ment which restrains a landowner from making certain 
use of his land which he might otherwise have lawfully 
done but for that restriction and such easements arise 
principally by express grant or by implication. Huggins 
v. Castle Estates, Inc., 36 N.Y.2d 427, 369 N.Y.S.2d 80, 
330 N.E.2d 48, 51. 
Negative evidence. Testimony that an alleged fact did 
not exist. See Rebuttal evidence. 
Negative pregnant. In pleading, a negative implying 
also an affirmative. Such a form of negative expression 
as may imply or carry within it an affirmative. A 
denial in such form as to imply or express an admission 
of the substantial fact which apparently is controverted; 
or a denial which, although in the form of a traverse, 
really admits the important facts contained in the alle
gations to which it relates. Cramer v. Aiken, 63 App. 
D.C. 16, 68 F.2d 761, 762. It occurs in responsive plead
ing where the denial is stated in the very words em
ployed in the complaint and negative pregnant is con
demned because it is pregnant with alternative admis
sions to allegations of the complaint. Prestin v. Baum
gartner, 47 Wis.2d 574, 177 N.W.2d 825, 827. 
Neg.pldare. To claim kindred. 
Neglect. May mean to omit, fail, or forbear to do a thing 
that can be done, or that is required to be done, but it 
may also import an absence of care or attention in the 
doing or omission of a given act. And it may mean a 
designed refusal, indifference, or unwillingness to per
form one's duty. In re Perkins, 234 Mo.App. 716, 117 
S.W.2d 686, 692. 
The term is used in the law of bailment as synon
ymous with "negligence." But the latter word is the 
closer translation of the Latin "negligentia." 
An omission to do or perform some work, duty, or act. 
Failure to perform or discharge a duty, covering positive 
official misdoing or official misconduct as well as negli
gence. 
See also Excusable neglect; Negligence. 
Cul pable neglect. Such neglect which exists where the 
loss can fairly be ascribed to the party's own careless
ness, improvidence, or folly. State ex reI. Fulton v. 
Coburn, 133 Ohio St. 192, 12 N.E.2d 471, 477, 10 0.0. 
249. 
1032 
Willfu l neglect. The neglect of the husband to provide 
for his wife the common necessaries of life, he having 
the ability to do so; or it is the failure to do so by reason 
of idleness, profligacy, or dissipation. See also Neces
saries. 
Neglected child. A child is "neglected" when his parent 
or custodian, by reason of cruelty, mental incapacity, 
immorality or depravity, is unfit properly to care for 
him, or neglects or refuses to provide necessary physical, 
affectional, medical, surgical, or institutional or hospital 
care for him, or he is in such condition of want or 
suffering, or is under such improper care or control as to 
endanger his morals or health. In re DuMond, 196 
Misc. 16, 17, 92 N.Y.S.2d 805. 
Negligence. The omission to do something which a 
reasonable man, guided by those ordinary considerations 
which ordinarily regulate human affairs, would do, or 
the doing of something which a reasonable and prudent 
man would not do. 
Negligence is the failure to use such care as a reason
ably prudent and careful person would use under sim
ilar circumstances; it is the doing of some act which a 
person of ordinary prudence would not have done under 
similar circumstances or failure to do what a person of 
ordinary prudence would have done under similar cir
cumstances. Amoco Chemical Corp. v. Hill, DeI.Super., 
318 A.2d 614, 617. Conduct which falls below the stan
dard established by law for the protection of others 
against unreasonable risk of harm; it is a departure 
from the conduct expectable of a reasonably prudent 
person under like circumstances. U.S. v. Ohio Barge 
Lines, Inc., 607 F.2d 624, 632. 
The term refers only to that legal delinquency which 
results whenever a man fails to exhibit the care which 
he ought to exhibit, whether it be slight, ordinary, or 
great. It is characterized chiefly by inadvertence, 
thoughtlessness, inattention, and the like, while "wan
tonness" or "recklessness" is characterized by willful
ness. The law of negligence is founded on reasonable 
conduct or reasonable care under all circumstances of 
particular case. Doctrine of negligence rests on duty of 
every person to exercise due care in his conduct toward 
others from which injury may result. 
See also Actionable negligence; Active negligence; 
Cause; Comparative negligence; Concurrent negligence; 
Fault; Imputed negligence; Invitation; Joint negligence; 
Laches; Legal negligence; Palsgraf Rule; Parental liabi lity; 
Product liabili ty; Reasonable man doctrine or Standards; 
Reckless; Simple negligence; Standard of care; Strict li
ability; Supervening negligence. 
Actionable negligence. See Actionable negligence. 
Active negligence. See Active negligence. 
Collateral negligence. Doctrine which holds that: An 
employer of an independent contractor, unless he is 
himself negligent, is not liable for physical harm caused 
by any negligence of the contractor if (a) the contractor's 
negligence consists solely in the improper manner in 
which he does the work, and (b) it creates a risk of such 
harm which is not inherent in or normal to the work,

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1033 
and (c) the employer had no reason to contemplate the 
contractor's negligence when the contract was made. 
Restatement, Second, Torts § 426. 
Comparative negligence. See Comparative negligence. 
Concurrent negligence. Arises where the same injury is 
proximately caused by the concurrent wrongful acts or 
omissions of two or more persons acting independently. 
See also Concurrent negligence. 
Contribu tory negligence. The act or omission amounting 
to want of ordinary care on part of complaining party, 
which, concurring with defendant's negligence, is proxi
mate cause of injury. Honaker v. Crutchfield, 247 Ky. 
495, 57 S.W.2d 502. Conduct by a plaintiff which is 
below the standard to which he is legally required to 
conform for his own protection and which is a contribu
ting cause which cooperates with the negligence of the 
defendant in causing the plaintiffs harm. Li v. Yellow 
Cab Co. of California, 13 Ca1.3d 804, 119 Cal. Rptr. 858, 
864, 532 P.2d 1226. 
Conduct for which plaintiff is responsible amounting 
to a breach of duty which law imposes on persons to 
protect themselves from injury, and which, concurring 
and cooperating with actionable negligence for which 
defendant is responsible, contributes to injury com
plained of as a proximate cause. Cowan v. Dean, 81 S.D. 
486, 137 N.W.2d 337, 341. 
The defense of contributory negligence has been re
placed by the doctrine of comparative negligence (q.v.) in 
many states. See also Exceptions and limitations, be
low. 
It is an affirmative defense which must be pleaded 
and proved by defendant. Fed.R.Civil P., Rule 8(c). 
Doctrine is also applicable to one who through his own 
negligence has contributed to material alteration of a 
negotiable instrument. V.C.C. § 3-i06. 
Criminal negligence. Criminal negligence which will 
render killing a person manslaughter is the omission on 
the part of the person to do some act which an ordinari
ly careful and prudent man would do under like circum
stances, or the doing of some act which an ordinarily 
careful, prudent man under like circumstances would 
not do by reason of which another person is endangered 
in life or bodily safety; the word "ordinary" being 
synonymous with "reasonable" in this connection. 
Negligence of such a character, or occurring under 
such circumstances, as to be punishable as a crime by 
statute; or (at common law) such a flagrant and reckless 
disregard of the safety of others, or wilful indifference to 
the injury liable to follow, as to convert an act otherwise 
lawful into a crime when it results in personal injury or 
death. 
A wanton or reckless disregard for human life; a 
degree of carelessness amounting to a culpable disregard 
of rights and safety of others. Ruffin v. State, 10 Md. 
App. 102, 268 A.2d 494, 497. That species of want of 
care by which a person may be criminally liable. It 
varies from jurisdiction to jurisdiction and is called 
culpable negligence in some. However, it generally 
NEGLIGENCE 
refers to conduct which is not intentional and ordinarily 
not wilful, wanto� and reckless. 
See Negligent homicide; Negligen tly; Negligent man
slaughter. 
Culpable negligence. Failure to exercise that degree of 
care rendered appropriate by the particular circum
stances, and which a man of ordinary prudence in the 
same situation and with equal experience would not 
have omitted. 
Degrees of negligence. While there are degrees of care, 
and failure to exercise proper degree of care is "negli
gence," most courts hold that there are no degrees (e.g. 
slight, ordinary, gross) of negligence, except in bailment 
cases or under automobile guest statutes. Murray v. De 
Luxe Motor Stages of Illinois, Mo.App., 133 S.W.2d 1074, 
1078. The prevailing view is that there are no "de
grees" of care in negligence, as a matter of law; there 
are only different amounts of care as a matter of fact. 
To the extent that the degrees of negligence survive, 
they are described below. 
Exceptions and limitations. The general rule in auto
mobile accident cases that contributory negligence bars 
recovery for the injuries sustained is subject to various 
exceptions and limitations. Thus the defense of contrib
utory negligence may be inapplicable where defendant's 
negligence is of a gross or willful character. Moreover, 
application of the doctrine of contributory negligence is 
limited by the last clear chance doctrine or similar 
doctrines, or by comparative negligence statutes. 
Gross negligence. The intentional failure to perform a 
manifest duty in reckless disregard of the consequences 
as affecting the life or property of another. 
It is materially more want of care than constitutes 
simple inadvertence. It is an act or omission respecting 
legal duty of an aggravated character as distinguished 
from a mere failure to exercise ordinary care. It 
amounts to indifference to present legal duty and to 
utter forgetfulness of legal obligations so far as other 
persons may be affected. It is a heedless and palpable 
violation of legal duty respecting the rights of others. 
The element of culpability which characterizes all negli
gence is in gross negligence magnified to a high degree 
as compared with that present in ordinary negligence. 
Gross negligence is a manifestly smaller amount of 
watchfulness and circumspection than the circumstanc
es require of a person of ordinary prudence. It falls 
short of being such reckless disregard of probable conse
quences as is equivalent to a wilful and intentional 
wrong. Ordinary and gross negligence differ in degree 
of inattention, while both differ in kind from wilful and 
intentional conduct which is or ought to be known to 
have a tendency to injure. 
Gross negligence consists of conscious and voluntary 
act or omission which is likely to result in grave injury 
when in face of clear and present danger of which 
alleged tortfeasor is aware. Glaab v. Caudill, Fla.App., 
236 So.2d 180, 182, 183, 185. That entire want of care 
which would raise belief that act or omission complained 
of was result of conscious indifference to rights and

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NEGLIGENCE 
welfare of persons affected by it. Claunch v. Bennett, 
Tex.Civ.App., 395 S.W.2d 719, 724. Indifference to 
present legal duty and utter forgetfulness of legal obli
gations, so far as other persons may be affected, and a 
manifestly smaller amount of watchfulness and circum
spection than the circumstances require of a person of 
ordinary prudence. 
Hazardous negligence. Such careless or reckless con
duct as exposes one to very great danger of injury or to 
imminent peril. 
Imputed negligence. Refers to doctrine that places upon 
one person responsibility for the negligence of another; 
such responsibility or liability is imputed by reason of 
some special relationship of the parties, such as parent 
and child, husband and wife, driver and passenger, own
er of vehicle and driver, bailor and bailee, master and 
servant, joint enterprise, and parent and custodian of a 
child. Schmidt v. Martin, 212 Kan. 373, 510 P.2d 1244, 
1246. 
Generally the doctrine of imputed negligence, as ap
plied to automobile accidents, visits on one person legal 
responsibility for the negligent conduct of another. The 
doctrine applies only in limited classes of cases, as 
where there is a right to control in the relationship of 
master and servant, principal and agent, or a joint 
enterprise. The independent negligence of one person 
ordinarily is not imputable to another person except 
where the relation between the persons gives rise to an 
express or implied agency in the person committing the 
act of negligence. 
See also Respondeat superior; Vicarious liability. 
Legal negligence. See Legal negligence. 
Ordinary negligence. The omission of that care which a 
person of common prudence usually takes of his own 
concerns. Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 
924, 35 L.Ed. 662. Failure to exercise care of an ordi
narily prudent person in same situation. A want of that 
care and prudence that the great majority of mankind 
exercise under the same or similar circumstances. 
Wherever distinctions between gross, ordinary and 
slight negligence are observed, "ordinary negligence" is 
said to be the want of ordinary care. 
Ordinary negligence is based on fact that one ought to 
have known results of his acts, while "gross negligence" 
rests on assumption that one knew results of his acts, 
but was recklessly or wantonly indifferent to results. 
The distinction between "ordinary negligence" and 
"gross negligence" is that the former lies in the field of 
inadvertence and the latter in the field of actual or 
constructive intent to injure. 
Passive negligence. Failure to do something that should 
have been done. It is negligence which permits defects, 
obstacles, or pitfalls to exist on premises; that is, negli
gence which causes dangers arising from physical condi
tion of land. Pachowitz v. Milwaukee & Suburban 
Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268, 275. 
Difference between "active" and "passive" negligence 
is that one is only passively negligent if he merely fails 
1034 
to act in fulfillment of duty of care which law imposes 
upon him, while one is actively negligent if he partici
pates in some manner in conduct or omission which 
caused injury. King v. Timber Structures, Inc. of Cal., 
240 Cal.App.2d 178, 49 Cal.Rptr. 414, 417. 
Per se negligence. The unexcused violation of a statute 
which is applicable is per se or automatic negligence in 
some states. See also Negligence per se. 
Slight negligence. A failure to exercise great care. 
Slight negligence is defined to be only an absence of that 
degree of care and vigilance which persons of extraordi
nary prudence and foresight are accustomed to use. 
Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 
662. 
Subsequent negligence. Exists where defendant sees 
plaintiff in a position of danger and fails to exercise due 
and proper precaution to prevent injury to plaintiff. 
Holman v. Brady, 241 Ala. 487, 3 So.2d 30, 33. 
Tax negligence. I.R.e. § 6653(a) imposes a penalty on 
taxpayers who show negligence or intentional disregard 
of rules and regulations with respect to the underpay
ment of certain taxes. 
Wilfu l, wanton or reckless negligence. These terms are 
customarily treated as meaning essentially the same 
thing. The usual meaning assigned to "wilful," "wan
ton" or "reckless," according to taste as to the word 
used, is that the actor has intentionally done an act of 
an unreasonable character in disregard of a risk known 
to him or so obvious that he must be taken to have been 
aware of it, and so great as to make it highly probable 
that harm would follow. It usually is accompanied by a 
conscious indifference to the consequences, amounting 
almost to willingness that they shall follow; and it has 
been said that this is indispensable. See for example 
Tyndall v. Rippon, 5 Del.Super. 458, 61 A.2d 422; Wol
ters v. Venhaus, 350 Ill.App. 322, 112 N.E.2d 747. The 
result is that "wilful," "wanton" or "reckless" conduct 
tends to take on the aspect of highly unreasonable 
conduct, or an extreme departure from ordinary care, in 
a situation where a high degree of danger is apparent. 
As a result there is often no clear distinction at all 
between such conduct and "gross" negligence, and the 
two have tended to merge and take on the same mean
ing, of an aggravated form of negligence, differing in 
quality rather than in degree from ordinary lack of care. 
It is at least clear, however, that such aggravated negli
gence must be more than any mere mistake resulting 
from inexperience, excitement, or confusion, and more 
than mere thoughtlessness or inadvertence, or simple 
inattention. 
"Wantonness" constituting gross and wanton negli
gence within automobile guest statute indicates a real
ization of imminence of danger and a reckless disregard, 
complete indifference, and unconcern of probable conse
quences of the wrongful act. Mann v. Good, 202 Kan. 
631, 451 P.2d 233, 236. 
Negligence, estoppel by. Equitable estoppel can arise 
when one through culpable negligence induces another 
to believe certain facts to exist and the other reasonably

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1035 
relies and acts on such belief. Imposition of an estoppel 
in such setting is designed· to ass ure that the loss is 
borne by the party who made the injury possible or who 
could have prevented it. Foley Machinery Co. v. Am
land Contractors, Inc., 209 N.J.Super. 70, 506 A.2d 1263. 
Negligence in law. "Actionable negligence" or "negli
gence in law" grows out of nonobservance of a duty 
prescribed by law. See also Negligence per se. 
Negligence per see A form of ordinary negligence that 
results from violation of a statute. Seim v. Garavalia, 
Minn., 306 N.W.2d 806, 810. Conduct, whether of action 
or omission, which may be declared and treated as 
negligence without any argument or proof as to the 
particular surrounding circumstances, either because it 
is in violation of a specific statute or valid municipal 
ordinance, or because it is so palpably opposed to the 
dictates of common prudence that it can be said without 
hesitation or doubt that no careful person would have 
been guilty of it. As a general rule, the violation of a 
public duty, enjoined by law for the protection of person 
or property, so constitutes. See also Strict liabil ity. 
Negligent. See Negligence. 
Negligent entrustment. Negligence consisting of en
trusting dangerous article to another whom lender 
knows, or should know, is likely to use it in a manner 
involving unreasonable risk of harm to others. Teter v. 
Clemens, 112 Il1.2d 252, 97 Ill. Dec. 467, 469, 492 N.E.2d 
1340, 1342. 
Negligent escape. Exists where prisoner escapes 
through officer's negligence. Hershey v. People, 91 
Colo. 113, 12 P.2d 345, 347. 
Negligent homicide. The criminal offense committed 
by one whose negligence is the direct and proximate 
cause of another's death. Criminal homicide constitutes 
negligent homicide when it is committed negligently. 
Model Penal Code § 210.4(1). Killing of a human being 
by criminal negligence. La.Rev.St. § 14:32. Although 
an intentional act is required, it is not necessary, unlike 
the crime of involuntary manslaughter, that a defen
dant realize the risk of death involved in his conduct. 
State v. Fisher, 141 Ariz. 227, 686 P.2d 750, 770. See 
also Homicide (Ve hicular homicide); Negligent 
manslaughter. 
Negligentia /negl;}j€msh(iy);}/. Lat. In the civil law, 
carelessness; inattention; the omission of proper care or 
forethought. The term is not exactly equivalent to our 
"negligence," inasmuch as it was not any negligentia, 
but only a high or gross degree of it, that amounted to 
culpa (actionable or punishable fault). 
Negligentia semper habet infortunium comitem /neg
l;}j€msh(iy);} semp;}r heyb�t infortyliwn(i)y;}m kom;}t;}m/. 
Negligence always has misfortune for a companion. 
Negligently. A person acts negligently with respect to a 
material element of an offense when he should be aware 
of a substantial and unjustifiable risk that the material 
element exists or will result from his conduct. The risk 
must be of such a nature and degree that the actor's 
failure to perceive it, considering the nature and pur
pose of his conduct and the circumstances known to him, 
NEGOTIABLE INSTRUMENTS 
involves a gross deviation from the standard of care that 
a reasonable person would observe in· the · actor's situa
tion. Model Penal Code, § 2.02. See also Negligence. 
Negligently done. The doing of an act where ordinary 
care required that it should not have been done at all, or 
that it should have been done in some other way, and 
where the doing of the act was not consistent with the 
exercise of ordinary care under the circumstances. See 
Negligence. 
Negligent manslaughter. A statutory crime in some 
jurisdictions consisting of an unlawful and unjustified 
killing of a person by negligence but without malice. 
See also Negligent homicide; Vehicular homicide. 
Negligent offense. One which ensues from a defective 
discharge of a duty, which defect could have been avoid
ed by the exercise of that care which is usual, under 
similar circumstances, with prudent persons of the same 
class. State v. Weiner, 41 N.J. 21, 194 A.2d 467, 480. 
Negligent violation of statute. One occasioned by or 
accompanied with negligent conduct. 
Negoce /n;}gows/. Fr. Business; trade; management of 
affairs. 
Negotiability /n;}gowsh(iy);}bil;}tiy/. Legal character of 
being negotiable (q.v.). A term referring to a set of 
circumstances, described by law, under which a trans
feree of property can acquire rights therein that are 
better or greater than the rights of the transferor. See 
also Words of negotiability. 
Negotiable /n;}gowsh(iy);}b;}lI. Legally capable of being 
transferred by endorsement or delivery. Usually said of 
checks and notes and sometimes of stocks and bearer 
bonds. See Commercial paper; Negotiable instruments; 
Non-negotiable. 
Negotiable bond. Type of bond which may be transfer
red by negotiation from original holder to another. 
Negotiable certificate of deposit (CD). Security issued 
by large commercial banks and other depository institu
tions as a short-term source of funds; it typically speci
fies a fixed interest rate and has a maturity of one year 
or less. 
Negotiable document of title. A document of title 
providing by its terms that the goods are to be delivered 
to bearer or to the order of a named person or, where 
recognized in overseas trade, that runs to a named 
person or assigns. U.C.C. § 7-104(1). 
Negotiable instruments. A written and signed uncon
ditional promise or order to pay a specified sum of 
money on demand or at a definite time payable to order 
or bearer. U.C.C. 3-104(1). To be negotiable within the 
meaning of U.C.C. Article 3, an instrument must meet 
the requirements set out in Section 3-104: (1) it must be 
a writing signed by the maker or drawer; it must 
contain an (2) unconditional (3) promise (example: note) 
or order (example: check) (4) to pay a sum certain in 
money; (5) it must be payable on demand or at a 
definite time; (6) it must be payable to the bearer or to 
order (examples of instruments payable to order are (a)

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NEGOTIABLE INSTRUMENTS 
"Pay to the order of Daniel Dealer," and (b) "Pay Daniel 
Dealer or order"); and (7) it must not contain any other 
promise, order, obligation, or power given by the maker 
or drawer except as authorized by Article 3. See also 
Commercial paper; Negotiation. 
Negotiable Order of Withdrawal. See N. O.W. account. 
Negotiable words. Words and phrases which impart 
the character of negotiability to bills, notes, checks, etc., 
in which they are inserted; for instance, a direction to 
pay to A. "or order" or "bearer". See Negotiable instru
ments. 
Negotiate /n�g6wshiyeyt/. To transact business; to bar
gain with another respecting a transaction; to conduct 
communications or conferences with a view to reaching 
a settlement or agreement. It is that which passes 
between parties or their agents in the course of or 
incident to the making of a contract and is also conver
sation in arranging terms of contract. 
To communicate or confer with another so as to arrive 
at the settlement of some matter. To meet with another 
so as to arrive through discussion at some kind of 
agreement or compromise about something. Al Herd, 
Inc. v. Isaac, 271 Cal.App.2d 749, 76 Cal.Rptr. 697, 699. 
To discuss or arrange a sale of bargain; to arrange the 
preliminaries of a business transaction. Also to sell or 
discount negotiable paper, or assign or transfer it by 
indorsement and delivery. To conclude by bargain, 
treaty, or agreement. 
See also Negotiation. 
Negotiated plea. The effect of plea bargaining in which 
the criminal defendant agrees to plead guilty to the 
charge or to a reduced charge in return for a recommen
dation from the prosecutor of a disposition less severe 
than possible under the particular statute. See e.g. 
Fed.R.Crim.P. l1( e). See Plea bargaining. 
Negotiating bank. A bank that purchases drafts drawn 
by the beneficiary of a negotiation credit. 
Negotiation /n�gows(h)iyeysh�n/. The transfer of an 
instrument in such form that the transferee becomes a 
holder. If the instrument is payable to order it is 
negotiated by delivery with any necessary indorsement; 
if payable to bearer it is negotiated by delivery. V.C.C. 
§ 3-202(1). The act by which a check or promissory note 
is put into circulation by being passed by one of the 
original parties to another person. The term also de
scribes the same process with respect to documents of 
title. See V.C.C. § 7-50l. 
Negotiation is process of submission and consideration 
of offers until acceptable offer is made and accepted. 
Gainey v. Brotherhood of Ry. and S. S. Clerks, Freight 
Handlers, Exp. & Station Emp., D.C.Pa., 275 F.Supp. 
292, 300. The deliberation, discussion, or conference 
upon the terms of a proposed agreement; the act of 
settling or arranging the terms and conditions of a 
bargain, sale, or other business transaction. 
See also Due negotiation; Negotiate. 
Negotiorum gestio /n�gowshiy6r�m jes(h)ch(iy)ow/. 
Lat. In the civil law, literally, a doing of business or 
1036 
businesses. A species of spontaneous agency, or an 
interference by one in the affairs of another, in his 
absence, from benevolence or friendship, and without 
authority. 
Negotiorum gestor /n�gowshiy6r�m jestor/. Lat. In 
the civil law, a transactor or manager of business; a 
person voluntarily constituting himself agent for anoth
er; one who, without any mandate or authority, as
sumes to take charge of an affair or concern for another 
person, in the latter's absence, but for his interest. 
One who spontaneously, and without the knowledge or 
consent of the owner, intermeddles with his property, as 
to do work on it, or to carry it to another place, etc. 
N.E.I. An abbreviation for "non est inventus," he is not 
found. 
Neife, naif, nativus /niyf/nayiyf/n�tayv�s/. In old Eng
lish law, a woman who was born a villein, or a bond
woman. 
Neighbor. One who lives in close proximity to another. 
Neighborhood. A place near; an ad joining or sur
rounding district; a more immediate vicinity; vicinage. 
Connally v. General Const. Co., 269 V.S. 385, 46 S.Ct. 
126, 129, 70 L.Ed. 322. 
It is not synonymous with territory or district, but is a 
collective noun, with the suggestion of proximity, and 
refers to the units which make up its whole, as well as 
to the region which comprehends those units. A district 
or locality, especially when considered with relation to 
its inhabitants or their interests. In ordinary and com
mon usage "locality" is synonymous in meaning with 
"neighborhood," and neither connote large geographical 
areas with widely diverse interests. Lukens Steel Co. v. 
Perkins, 70 App.D.C. 354, 107 F.2d 627, 63l. 
As used with reference to a person's reputation, 
"neighborhood" means in general any community or 
society where person is well known and has established 
a reputation. 
Ne injuste vexes /niy �nj�stiy veksiyz/. Lat. In old 
English practice, a prohibitory writ, commanding a lord 
not to demand from the tenant more services than were 
justly due by the tenure under which his ancestors held. 
Neither party. An abbreviated form of docket entry, 
meaning that, by agreement, neither of the parties will 
further appear in court in that suit used as a form of 
judgment in some states where a case has been settled. 
Ne luminibus officiatur /niy l(y)uwmin�b�s �fish
iyeyt�r/. Lat. In the civil law, the name of a servitude 
which restrains the owner of a house from making such 
erections as obstruct the light of the adjoining house. 
Nemine contradicente /nem�niy kontr�d�sentiy/. Lat. 
No one dissenting; no one voting in the negative. A 
phrase used to indicate the unanimous consent of a 
court or legislative body to a judgment, resolution, vote, 
or motion. Commonly abbreviated "nem. con." 
Neminem lredit qui jure suo utitur /nem�n�m liyd�t 
kway juriy s(y)uwow yuwt�t�r/. He who stands on his 
own rights injures no one.

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1037 
Neminem oportet esse sapientiorem legibus 
/nem:m ;)m ;)pOrbt esiy srepiyimshiyor;)m liyj;)b;)s/. No 
man ought to be wiser than the laws. 
Nemo /niymow/. Lat. No one; no man. The initial 
word of many Latin phrases and maxims, among which 
are the following: 
Nemo admittendus est inhabilitare seipsum Iniymow 
redm;)tendas est inhabilateriy siyipsam/. No man is to 
be admitted to incapacitate himself. 
Nemo agit in seipsum Iniymow eyj;)t an siyipsam/. No 
man acts against himself. A man cannot be a judge and 
a party in his own cause. 
Nemo alienre rei, sine satisdatione, defensor idoneus 
intelligitur Iniymow reliyiyniy riyay, sayniy sretas
deyshiyowniy, dafensor adowniyas intalijatar/. 
No man is considered a competent defender of another's 
property, without security. A rule of the Roman law, 
applied in part in admiralty cases. 
Nemo alieno nomine lege agere potest Iniymow 
reliyiynow nomaniy liyjiy rejariy powtast!. No one can 
sue in the name of another. 
Nemo aliquam partem recte intelligere potest, ante
quam totum iterum atque iterum perlegerit Iniymow 
relakwam partam rektiy intalijariy powtast, rentakwam 
towtam itaram parliyjarat/. No one can properly under
stand any part of a thing till he has read through the 
whole again and again. 
Nemo allegans suam turpitudinem audiendus est 
Iniymow relagrenz s(y)uwam t:)rpat(y)uwdanam odiyendas 
est!. No one alleging his own turpitude is to be heard 
as a witness. This is not a rule of evidence, but applies 
to a party seeking to enforce a right founded on an 
illegal consideration. 
Nemo bis punitur pro eodem delicto Iniymow bis 
pyuwnatar prow iyowdam daliktow/. No man is pun
ished twice for the same offense. 
Nemo cogitationis prenam patitur Iniymow kojatey
shiyownas piynam pretatar/. No one suffers punishment 
on account of his thoughts. 
Nemo cogitur rem suam vendere, etiam justo pretio 
Iniymow ko(w)jatar rem s(y)uwam vendariy, iysh(iy)am 
j:)stow presh(iy)ow/. No man is compelled to sell his 
own property, even for a just price. 
Nemo contra factum suam venire potest Iniymow 
kontra frektam s(y)uwam vanayriy powtast/. No man 
can contravene or contradict his own deed. The princi
ple of estoppel by deed. 
Nemo damnum facit, nisi qui id fecit quod facere jus 
non habet Iniymow dremnow feysat, naysay kway id 
fiys;)t kwod fres;)riy j:)s non heybat!. No one is con
sidered as doing damage, unless he who is doing what he 
has no right to do. 
Nemo dare potest quod non habet Iniymow deriy 
powdast kwod non heybat/. No man can give that 
which he has not. 
NEMO DUOBUS UTATUR OFFICnS 
Nemo dat qui non habet Iniymow dret kway non 
heybat/. He who hath not cannot give. 
Nemo debet aliena jactura locupletari Iniymow debat 
reliyiyna jrekt(y)ur;) lok(y)aplateray/. No one ought to 
gain by another's loss. 
Nemo debet bis puniri pro uno delicto Iniymow debat 
bis pyanayray prow yUwnow daliktow/. No man ought 
to be punished twice for one offense. No man shall be 
placed in peril of legal penalties more than once upon 
the same accusation. 
Nemo debet bis vexari pro eadem causa Iniymow 
debat bis vekseray prow iyeydam koza/. No one should 
be twice harassed for the same cause. 
Nemo debet bis vexari [si constet curire quod sit] pro 
una et eadem causa Iniymow debat bis vekseray (say 
konstat kyuriyiy kwod sit) prow yuwna ed iyeydam 
kozal. No man ought to be twice troubled or harassed 
[if it appear to the court that it is] for one and the same 
cause. No man can be sued a second time for the same 
cause of action, if once judgment has been rendered. No 
man can be held to bail a second time at the suit of the 
same plaintiff for the same cause of action. 
Nemo debet esse judex in propria causa Iniymow 
debat esiy juwdeks in prowpriya koza/. No man ought 
to be a judge in his own cause. A maxim derived from 
the civil law. 
N emo debet immiscere se rei ad se nihil pertinenti 
Iniymow debat amisariy siy riyay red siy nay(h)al 
p:)rtanentay/. No one should intermeddle with a thing 
that in no respect concerns him. 
Nemo debet in communione invitus teneri Iniymow 
debat in kamyuwniyowniy anvaytas taniray/. No one 
should be retained in a partnership against his will. 
Neino debet locupletari aliena jactura Iniymow debat 
lok(y)aplateray reliyiyna jrekt(y)ura/. No one ought to be 
enriched by another's loss. 
Nemo debet locupletari ex alterius incommodo 
Iniymow debat lok(y)aplateray eks oltarayas 
inkomawdow/. No one ought to be made rich out of 
another's loss. 
Nemo debet rem suam sine facto aut defectu suo 
amittere Iniymow debat rem s(y)uwam sayniy frektow ot 
dafekt(y)uwamitariy/. No man ought to lose his proper
ty without his own act or default. 
Nemo de domo sua extrahi potest Iniymow diy dow
mow s(y)uwa ekstreyhay powtast/. No one can be 
dragged out of his own house. In other words, every 
man's house is his castle. 
Nemo duobus utatur officiis Iniymow d(y)uwowbas 
yuwteytar afis(h)iyas/. No one should hold two offices, 
i.e., at the same time. 
Nemo ejusdem tenementi simul potest esse hreres et 
dominus Iniymow aj:)sdam ten�mentay saymal powt�st 
esiy hiriyz et doman�s/. No one can at the same time be 
the heir and the owner of the same tenement.

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NEMO EST H£RES VIVENTIS 
Nemo enim aliquam partem recte intelligere possit 
antequam totum iterum atque iterum perlegerit 
Iniymow iyn�m rebkw�m part�m rektiy int�lij�riy pos�t 
rent�kw�m towt�m it�r�m retkwiy it�r�m p�rliyj�r�t/. 
No one is able rightly to understand one part before he 
has again and again read through the whole. 
Nemo est hreres viventis Iniymow est hiriyz v�vent�s/. 
No one is the heir of a living person. No one can be 
heir during the life of his ancestor. No person can be 
the actual complete heir of another till the ancestor is 
previously dead. 
Nemo est supra leges Iniymow est s(y)uwpr� liyjiyz/. 
No one is above the law. 
Nemo ex alterius facto prregravari debet Iniymow eks 
olt�rayes frektow priygr�veray deb�t/. No man ought to 
be burdened in consequence of another's act. 
Nemo ex consilio obligatur Iniymow eks k�nsil(i)yow 
obl�geyt�r/. No man is bound in consequence of his 
advice. Mere advice will not create the obligation of a 
mandate. 
Nemo ex dolo suo proprio relevetur, aut auxilium 
capiat Iniymow eks dowlow s(y)uwow prowpriyow 
rebviyt�r, ot ogzil(i)y�m krepiy�tI. Let no one be re
lieved or gain an advantage by his own fraud. A civil 
law maxim. 
Nemo ex proprio dolo consequitur actionem Iniymow 
eks prowpriyow dowlow k�nsekw�t�r rekshiy
own�m/. No one maintains an action arising out of his 
own wrong. 
Nemo ex suo delicto meliorem suam conditionem 
facere potest Iniymow eks s(y)uwow d�liktow 
miyliyor�m s(y)uw�m k�ndishiyown�m fres�riy powt�stl. 
No one can make his condition better by his own mis
deed. 
Nemo inauditus condemnari debet si non sit contu
max Iniymow inod�t�s kond�mneray deb�t say non sit 
kontyuwmreks/. No man ought to be condemned with
out being heard unless he be contumacious. 
Nemo in propria causa testis esse debet Iniymow in 
prowpriy� koz� test�s esiy deb�tI. No one ought to be a 
witness in his own cause. 
Nemo jus sibi dicere potest Iniymow j�s sibay dis�riy 
powt�st/. No one can declare the law for himself. No 
one is entitled to take the law into his own hands. 
Nemo militans deo implicetur secularibus negotiis 
Iniymow mil�trenz diyow impl�siyt�r seky�ler�b�s 
n�gowshiy�sl . No man who is warring for [in the ser
vice of] God should be involved in secular matters. A 
principle of the old law that men of religion were not 
bound to go in person with the king to war. 
Nemo nascitur artifex Iniymow nres�t�r art�feks/. No 
one is born an artificer. 
Nemo patriam in qua natus est exuere, nec ligeantire 
debitum ejurare possit Iniymow pretriy�m in kwey 
neyt�s est ;}gz(y)uw�riy, nek lijiyrenshiyiy deb�t�m 
iyj�reriy pos�tI. No man can renounce the country in 
1038 
which he was born, nor abjure the obligation of his 
allegiance. 
Nemo plus commodi hreredi suo relinquit quam ipse 
habuit Iniymow pl�s kom�wday h�riyday s(y)uwow 
r�li1Jkw�t kwrem ipsiy hrebyuw�t/. No one leaves a 
greater benefit to his heir than he had himself. 
Nemo plus juris ad alium transferre potest quam 
ipse habet Iniymow pl�s jur�s red eyliy�m trrensf�riy 
powt�st kwrem ipsiy heyb�t/. No one can transfer more 
right to another than he has himself. 
Nemo potest contra recordum verificare per patriam 
Iniymow powt�st kontr� r�kord�m vehr�f�keriy p�r 
pretriy�m/. No one can verify by the country against a 
record. The issue upon matter of record cannot be to 
the jury. A maxim of old practice. 
Nemo potest esse dominus et hreres Iniymow powt�st 
esiy dom�n�s et hiriyz/. No man can be both owner and 
heir. 
Nemo potest esse simul actor et judex Iniymow 
powt�st esiy saym�l rekt�r et juwdeks/. No one can be 
at once suitor and judge. 
Nemo potest esse tenens et dominus Iniymow powt�st 
esiy tenenz et dom�n�s/. No man can be both tenant 
and lord [of the same tenement]. 
Nemo potest exuere patriam Iniymow powtest 
�gz(y)uw�riy pretriy�m/. No man can renounce his own 
country. 
N emo potest facere per alium quod per se non potest 
Iniymow powt�st fres�riy p�r reliy�m kwod p�r siy non 
powt�st/. No one can do that by another which he 
cannot do of himself. A rule said to hold in original 
grants, but not in descents; as where an office descend
ed to a woman, in which case, though she could not 
exercise the office in person, she might by deputy. 
Nemo potest facere per obliquum quod non potest 
facere per directum Iniymow powd�st fres�riy p�r 
�blaykw�m kwod non powd�st fres�riy p�r d�rekt�m/. 
No man can do that indirectly which he cannot do 
directly. 
Nemo potest mutare consilium suum in alterius inju
riam Iniymow powt�st myuwteriy k�nsil(i)y�m s(y)uw�m 
in olt�ray�s �njuriy�m/. No man can change his pur
pose to another's injury. 
Nemo potest nisi quod de jure potest Iniymow powt�st 
naysay kwod diy juriy powt�stl. No one is able to do a 
thing, unless he can do it lawfully. 
Nemo potest plus juris ad alium transferre quam 
ipse habet Iniymow powt�st pl�s jur�s red reliy�m 
trrensf�riy kwrem ips�m heyb�t/. No one can transfer a 
greater right to another than he himself has. 
Nemo potest sibi debere Iniymow powt�st sibay 
d�biriy I. No one can owe to himself. 
Nemo prresens nisi intelligat Iniymow priyz�nz nay
say �ntel�gret/. One is not present unless he under
stands.

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1039 
Nemo prresumitur aUenam posteritatem sure prretu
lisse Iniymow pr�z(y)uwm�t�r reliyiyn�m p�ster�teyt�m 
s(y)uwiy priyt�lisiy/. No man is presumed to have pre
ferred another's posterity to his own. 
Nemo prresumitur donare Iniymow pr�z(y)uwm��r 
d�neriy/. No one is presumed to give. 
Nemo prresumitur esse immemor sure reternre salutis, 
et maxime in articulo mortis Iniymow pr�z(y)uwm�t�r 
esiy im�mor s(y)uwiy �t:lrniy s�l(y)uwt�s, et mreks�miy in 
artiky�low m6rt�s/. No one is presumed to be forgetful 
of his own eternal welfare, and particularly at the point 
of death. 
Nemo prresumitur ludere in extremis Iniymow 
pr�z(y)uwm�t;}r l(y)uwd;}riy in ;}kstriym;}s/. No one is 
presumed to trifle at the point of death. 
Nemo prresumitur malus Iniymow pr;}z(y)uwm;}t;}r 
mrebs/. No one is presumed to be bad. 
Nemo prohibetur plures negotiationes sive artes ex
ercere Iniymow prow(h);}biyt;}r pl(y)uriyz n;}gow
shiyeyshiy6wniyz sayviy artiyz egz;}rsiriy I. No one is 
prohibited . from following several kinds of business or 
several arts. The common law doth not prohibit any 
person from using several arts or mysteries at his pleas
ure. 
Nemo prohibetur pluribus defensionibus uti Iniymow 
prow(h);}biyt;}r pl(y)ur;}b;}s d;}fensiy6wn;}b;}s yuw
tay/. No one is prohibited from making use of several 
defenses. 
Nemo prudens punit ut prreterita revocentur, sed ut 
futura prreveniantur Iniymow pruwdenz PYUWll;}t ;}t 
pr;}tehr;}t;} riyv;}sent;}r, sed ;}t f(y);}tyur;} pr;}viy
niyrent;}r/. No wise man punishes in order that past 
things may be recalled, but that future wrongs may be 
prevented. 
Nemo punitur pro alieno delicto Iniymow pyuwn;}t;}r 
prow reliyiynow d;}liktow/. No one is punished for an
other's wrong. 
Nemo punitur sine injuria, facto, seu defalta Iniymow 
PyuWll;}t;}r sayniy ;}njuriy;}, frektow, syuw d;}f6It;}/. No 
one is punished unless for some wrong, act, or default. 
Nemo qui condemnare potest, absolvere non potest 
Iniymow kway kond;}mneriy p6wt;}st, ;}bz6Iv;}riy non 
p6wt;}st/. No one who may condemn is unable to acquit. 
Nemo sibi esse judex vel suis jus dicere debet 
Iniymow sway esiy juwdeks vel s(y)UW;}S j:lS dis;}riy 
deb;}t/. No man ought to be his own judge, or to 
administer justice in cases where his relations are con
cerned. 
Nemo sine actione experitur, et hoc non sine breve 
sive libello conventionali Iniymow sayniy rekshiy6w
niy ;}ksper;}t;}r, et h6k non sayniy briyviy sayviy l;}below 
k�nvensh;}neylay/. No one goes to law without an ac-
I tion, and no one can bring an action without a writ or , bill. 
I Nemo tenetur ad impossibile Iniymow t;}niyt;}r red 
imposw;}liy/. No one is bound to an impossibility. 
NEPTIS 
Nemo tenetur armare adversarium contra se 
Iniymow t;}niyt;}r armeriy redv;}rseriy;}m k6ntr;} siy/. 
No one is bound to arm his adversary against himself. 
Nemo tenetur divinare Iniymow t;}niyt;}r div;}neriy/. 
No man is bound to divine, or to have foreknowledge of, 
a future event. 
Nemo tenetur edere instrumenta contra se Iniymow 
t;}niyd;}r iyd;}riy instr;}ment;} k6ntr;} siy/. No man is 
bound to produce writings against himself. A rule of 
the Roman law, adhered to in criminal prosecutions, but 
departed from in civil questions. 
N emo tenetur informare qui nescit, sed quisquis 
scire quod informat Iniymow t;}niyt;}r inf;}rmeriy kway 
nes;}t, sed kwiskwis sayriy kwod inform;}t/. No one is 
bound to give information about things he is ignorant of, 
but every one is bound to know that which he gives 
information about. 
Nemo tenetur jurare in suam turpitudinem Iniymow 
t;}niyt;}r jureriy in s(y)uw;}m t;}rp;}t(y)uwd;}n;}m/. No one 
is bound to swear to the fact of his own criminality; no 
one can be forced to give his own oath in evidence of his 
guilt. 
Nemo tenetur prodere seipsum Iniymow t;}niyt;}r 
prowd;}riy siyips;}m/. No one is bound to betray himself. 
In other words, no one can be compelled to criminate 
himself. 
Nemo tenetur seipsum accusare Iniymow t;}niyt;}r 
siyips;}m reky;}zeriy/. No one is bound to accuse himself. 
Nemo tenetur seipsum infortuniis et periculis expon
ere Iniymow t;}niyt;}r siyips;}m infortyuwniy;}s et 
p;}riky;}l;}s ekspown;}riy/. No one is bound to expose 
himself to misfortunes and dangers. 
Nemo tenetur seipsum prodere Iniymow t;}niyt;}r 
siyips;}m prowd;}riy/. No one is bound to betray himself. 
Nemo unquam judicet in se Iniymow :lI]kw;}m juwd;}s;}t 
in siy/. No one can ever be a judge in his own cause. 
Nemo unquam vir magnus fuit, sine aliquo divino 
afflatu Iniymow :lI]kw;}m vir mregn;}s f(y)uw;}t, sayniy 
rel;}kwow d;}vaynow ;}fleyt(y)uw/. No one was ever a 
great man without some divine inspiration. 
Nemo videtur fraudare eos qui sciunt et consentiunt 
Iniymow v;}diyt;}r frodiriy iyows kway say;}nt et k;}nsen
shiy;}nt/. No one seems [is supposed] to defraud those 
who know and assent [to his acts]. 
NEPA. National Environmental Policy Act. 42 U.S. 
e.A. § 4321 et seq. 
Nephew. The son of one's brother or sister, or one's 
brother-in-law or sister-in-law. 
Nepos Inepos/niypows/. Lat. A grandson. 
Nepotism Inep;}tiz;}m/. Bestowal of patronage by public 
officers in appointing others to positions by reason of 
blood or marital relationship to appointing authority. 
Neptis Inept;}s/. Lat. 'A granddaughter; sometimes 
great-granddaughter.

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NE RECIPIATUR 
Neque leges neque senatus consulta ita scribi pos
sunt ut omnis casus qui quandoque in sediriunt 
comprehendatur; sed sufficit ea quae plaerumque 
accidunt contineri Inekwiy liyjiyz nekwiy s:meyt:ls 
k:lns;}lt:l ayt:l skraybay pos:lnt �t omn:ls keys:ls kway 
kwondowkwiy in s:ldiriY:lnt kompr:lhendeyt:lr; sed 
s;}f:lS:lt iY:l kwiy pl:lr;}mkwiy reks:ld:lnt kont:lniray I. 
Means that neither laws nor acts of a parliament can be 
so written as to include all actual or possible cases; it is 
sufficient if they provide for those things which fre
quently or ordinarily may happen. 
Ne quid in loco publico vel itinere fiat Iniy kwid in 
lowkow p;}bl:lkow vel aytin:lriy faY:lt/. Lat. That noth
ing shall be done (put or erected) in a public place or 
way. The title of an interdict in the Roman law. 
Ne recipiatur Iniy r:lsipiyeyt:lr/. Lat. That it be not 
received. A caveat or warning given to a law officer, by 
a party in a cause, not to receive the next proceedings of 
his opponent. 
Ne relessa pas In:l r:lles:l pal. L. Fr. Did not release. 
Where the defendant had pleaded a release, this was the 
proper replication by way of traverse. 
Net. That which remains after all allowable deductions, 
such as charges, expenses, discounts, commissions, taxes, 
etc., are made. 
Net assets. A term used in accounting which is arrived 
at by subtracting a company's total liabilities from total 
assets. Commonwealth v. Union Trust Co. of Pitts
burgh, 345 Pa. 298, 27 A.2d 15, 17. See Net worth. 
Net asset value (N.A.V.). The market value of a share 
of stock in a mutual fund. The net asset value is 
arrived at by deducting total liabilities (accounts pay
able, notes payable, etc.) from total assets (cash, securi
ties, etc.) and dividing such amount by the number of 
shares outstanding. 
The net asset value of a corporation, for stock apprais
al purposes, is the share which stock represents in the 
value of the net assets of the corporation including all 
property and value, whether realty or personalty, tangi
ble or intangible, goodwill, and the corporation's value 
as a going concern. In re Watt & Shand, 452 Pa. 287, 
304 A.2d 694, 698. See also Book (Book value); Net 
worth. 
Net balance. In reference to the sale of goods, the 
proceeds from the sale, after deducting expenses associ
ated with the sale (commissions, etc.) 
Net cash flow. Cash inflow minus cash outflow. It is 
often measured as income after tax plus non-cash ex
penses associated with a particular investment project 
(i.e., depreciation, amortization, etc.). 
Net cost. The actual cost of an item. Net cost is arrived 
at by deducting any income or financial gain from the 
total cost. As used in insurance, it represents the total 
premiums paid less the dividends received and cash 
surrender value. 
Net earnings. See Earnings. 
Net estate. Under estate tax statute the term means 
that which is left of the gross estate after the deduction 
1040 
of proper and lawful items in the course of settlement. 
United States Trust Co. of New York v. Sears, D.C. 
Conn., 29 F.Supp. 643, 649. In general, the net estate is 
the gross estate less the following allowable deductions: 
(a) funeral expenses; (b) claims against the estate; and 
(c) unpaid mortgages or indebtedness on property which 
is included in the gross estate. 
Nether house of Parliament. A name given to the 
English house of commons in the time of Henry VIII. 
Net income. Income subject to taxation after allowable 
deductions and exemptions have been subtracted from 
gross income. The excess of all revenues and gains for a 
period over all expenses and losses of the period. 
Net income for income tax purposes is what remains 
out of gross income after subtracting ordinary and nec
essary expenses incurred in efforts to obtain or to keep 
it. Walling's Estate v. C. I. R., C.A.Pa., 373 F.2d 190, 
193. 
See also Distributable net income; Net profits; Taxable 
income. 
Net interest. Pure interest which is theoretical and 
excludes overhead and risks from cost of capital. 
Net investment. The net cash outlay required at the 
beginning of an investment project. 
Net lease. Lease in which provision is made for the 
lessee to pay, in addition to rent, such additional ex
penses as the taxes, insurance and maintenance charges. 
See also Escalator clause; Net rent. 
Net level annual premium. An amount which, if exact
ed from a group of policyholders and increased by inter
est, will yield a sum sufficient to satisfy all death claims. 
The result is generally referred to as the "net" or "net 
level premium" of the policy. Fox v. Mutual Ben. Life 
Ins. Co., C.C.A.Mo., 107 F.2d 715, 718. 
Net listing. A type of listing contract whereby the 
broker is only entitled to a commission to the extent 
that sales price exceeds the given amount. For exam
ple, a net listing of $15,000 where the property sold for 
$18,000 would result in a $3,000 commission. See also 
Listing; Multiple listing; Net sale contract. 
Net loss. Any deficit from operations, plus any shrink
age in value of plant investment. Ickes v. U. S. ex reI. 
Chestatee Pyrites & Chemical Corporation, D.C., 289 
U.S. 510, 53 S.Ct. 700, 77 L.Ed. 1352. The excess of all 
expenses and losses for a period over all revenues and 
gains of the period. Negative net income. 
Net national product. In a given period of time, the 
gross national product less allowance for capital con
sumption. See also Gross National Product. 
Net operating assets. The assets, net of depreciation 
and bad debts, employed in the ordinary course of busi
ness. Hence excludes investments in stocks and bonds 
owned by a manufacturing company, for example. 
Net operating income. Income generated from the 
operations of a business reduced by operating expenses.

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1041 
Expenses not considered operating expenses include: in
terest, depreciation, and income taxes. 
Net operating loss. The excess of operating expenses 
over revenues. Items such as interest expenses and 
dividends are not considered ordinary business expenses, 
and, therefore are excluded in calculating the net oper
ating loss. I.R.C. § 172(c). 
Net position. In securities and commodity trading, the 
difference between contracts long and contracts short 
held by a trader. 
Net premium. In life insurance, this term is used to 
designate that portion of the premium which is intended 
to meet the cost of the insurance, both current and 
future. Its amount is calculated upon the basis of the 
mortality tables and upon the assumption that the com
pany will receive a certain rate of interest upon all its 
assets; it does not include the entire premium paid by 
the assured, but does include a certain sum for expenses. 
Net present value (NPV). The present value of the 
stream of net cash flows resulting from a project, dis
counted at the firm's cost of capital, minus the project's 
net investment. It is used to evaluate, rank, and select 
from among various investment projects. 
Net price. The lowest price, after deducting all deduc
tions, discounts, etc. 
Net proceeds. Gross proceeds, less charges which may 
be rightly deducted. Pflueger v. United States, 73 App. 
D.C. 364, 121 F.2d 732, 736. 
Net profit margin. A percent arrived at by dividing 
income after cost of goods sold, operating expenses and 
taxes by total revenues. 
Net profits. Profits after deduction of all expenses; may 
be classified as net before or after taxes. Deducting the 
cost of goods sold from sales gives the gross profit. 
Deducting the operating expenses (overhead) from gross 
profit gives the operating prof it. Deducting income tax
es from operating profits gives the net prof it. See also 
Net income. 
Net rent. Basic rent charge plus additional monthly 
charges for taxes, utilities and maintenance. See also 
Net lease. 
Net return. See Net income; Net profits. 
Net revenues. See Net income; Net profits. 
Net sale contract. One in which the principal agrees to 
accept a specified net price for property to be sold, and 
the agent's compensation for negotiating a sale is to be 
any amount received in excess of the specified figure. 
Loughlin v. Idora Realty Co., 259 Cal.App.2d 619, 66 
Cal.Rptr. 747, 751, 752. See also Net listing. 
Net sales. Gross sales minus returns, allowances, re
bates, and discounts. 
Net settlement. The accounting or bookkeeping balance 
that results when banks exchange items drawn on each 
other. 
Black's Law Dictionary 6th Ed.-23 
NE UNQUES ACCOUPLE 
Net single premium. Aggregate of future yearly costs 
of insurance, severally discounted to age from which 
computation is made. Magers v. Northwestern Mut. 
Life Ins. Co., 348 Mo. 96, 152 S.W.2d 148, 152. 
Premium which, if exacted from a group of policyhold
ers and immediately invested at the assumed rate of 
interest, will yield in the aggregate a sum exactly suffi
cient to pay all death claims as they mature providing 
the mortality rate is in accord with the table used. Fox 
v. Mutual Ben. Life Ins. Co., C.C.A.Mo., 107 F.2d 715, 
718. 
Net tonnage. The cubic contents of the interior of a 
vessel, when the spaces occupied by the crew and by 
propelling machinery are deducted, numbered in tons. 
Kiessig v. San Diego County, 51 Cal.App.2d 47, 124 P.2d 
163, 165. 
Net value. In insurance, accumulation of balances of 
past net premiums not absorbed in carrying risk. "Net 
valuation" portion of life insurance premium is amount 
of reserve necessary, under proper interest and mortali
ty calculations, to properly fund policy for payment of 
future claims. North American Life & Cas. Co. v. C.I.R., 
C.A.8, 533 F.2d 1046, 1049. 
Net weight. The weight of an article or collection of 
articles, after deducting from the gross weight the 
weight of the boxes, coverings, casks, etc., containing the 
same. The weight of an animal dressed for sale, after 
rejecting hide, offal, etc. 
Net worth. The amount by which assets exceed liabili
ties. Remainder after deduction of liabilities from as
sets. W. H. Miner, Inc. v .. Peerless Equipment Co., 
C.C.A.Ill., 115 F.2d 650, 655. Difference between total 
assets and liabilities of individual, corporation, etc. 
The total assets of a person or business less the total 
liabilities (amounts due to creditors). In the case of a 
corporation net worth includes both capital stock and 
surplus; in the case of a partnership or single proprie
torship it is the original investment plus accumulated 
and reinvested profits. 
Net worth of a corporation may be determined by 
subtracting liabilities from assets or by adding the capi
tal account and surplus account as reflected in the 
general ledger of a corporation. Eastern Capital Corp. 
v. Freeman, 10 Misc.2d 412, 168 N.Y.S.2d 834, 838. 
See also Book (Book value); Net asset value. 
Net worth method. An approach used by the Internal 
Revenue Service to reconstruct the income of a taxpayer 
who fails to maintain adequate records. Under this 
approach, the gross income for the year is the increase 
in net worth of the taxpayer (i.e., assets in excess of 
liabilities) with appropriate adjustment for nontaxable 
receipts and nondeductible expenditures. The net 
worth method often is used when tax fraud is suspected. 
Net yield. The rate of return on an investment after 
deducting all costs, losses and charges for management. 
Ne unques accouple /niY�lJkwiyz ;;)k�p;;)l/. L. Fr. Nev
er married. More fully, ne unques accouple en loiall 
matrimonie, never joined in lawful marriage. The name

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NE UNQUES ACCOUPLE 
of a plea in the action of dower unde nihil habet, by 
which the tenant denied that the dowress was ever 
lawfully married to the decedent. 
Ne unques executor IniY;}lJkwiyz ;:)gzeky;:)t;:)r/. L. Fr. 
Never executor. The name of a plea by which the 
defendant denies that he is an executor, as he is alleged 
to be; or-that the plaintiff is an executor, as he claims to 
be. 
Ne unques seise que dower IniY;}lJkwiyz siyziy b 
daw;:)r/. L. Fr. (Never seised of a dowable estate.) In 
pleading, the general issue in the action of dower unde 
nil habet, by which the tenant denies that the demand
ant's husband was ever seised of an estate of which 
dower might be had. 
Ne unques son receiver IniY;}lJkwiyz son r;:)siyv;:)r/. L. 
Fr. In old pleading, the name of a plea in an action of 
account-render, by which the defendant denies that he 
ever was receiver of the plaintiff. 
Neurasthenia In(y)ur;:)sOiyniy;:)/. Neurosis manifested 
chiefly by exhaustion, mental and physical fatigue, irrit
ability and poorly localized symptoms without any un
derlying physical disorder. 
Neurology. Branch of medicine dealing with nervous 
system and its disorders. 
Neutral. Indifferent; unbiased; impartial; not engaged 
on either side; not taking an active part with either of 
the contending sides. In an international war, the prin
cipal hostile powers are called "belligerents;" those ac
tively co-operating with and assisting them, their "al
lies;" and those taking no part whatever, "neutrals." 
Neutrality. The state of a nation which takes no part 
between two or more other nations at war. U. S. v. The 
Three Friends, 166 U.S. 1, 17 S.Ct. 495, 41 L.Ed. 897. 
Neutrality laws. Acts of Congress which forbid the 
fitting out and equipping of armed vessels, the enlisting 
of troops, or the engaging in other specified activities; 
for the aid of either of two belligerent powers with 
which the United States is at peace. See 22 U.S.C.A. 
§ 441 et seq. 
Neutrality proclamation. A proclamation by the Presi
dent of the United States, issued on the outbreak of a 
war between two powers with both of which the United 
States is at peace, announcing the neutrality of the 
United States and warning all citizens to refrain from 
any breach of the neutrality laws. 
Neutralization. Erasure or cancellation of unexpected 
harmful testimony by showing either by cross-examina
tion or other witnesses that the witness has made a 
statement in conflict with his testimony. State v. Gal
licchio, 44 N.J. 540, 210 A.2d 409, 412. See also Im
peachment. 
Neutral principles doctrine. Doctrine applied in the 
resolution of church property disputes which holds that 
court must refrain from resolving dispute on basis of 
religious doctrine and practice and must rely exclusively 
on objective, well-established concepts of trust and prop
erty law familiar to lawyers and judges; documents, 
1042 
including religious documents, pertinent to dispute must 
be scrutinized in purely secular terms. Presbytery of 
Elijah Parish Lovejoy v. Jaeggi, Mo., 682 S.W.2d 465, 
473. 
Neutral property. Property which belongs to citizens of 
neutral powers, and is used, treated, and accompanied 
by proper insignia as such. 
Ne varietur Iniy veriyiyt;:)r/. Lat. It must not be 
altered. A phrase sometimes written by a notary upon 
a bill or note, for the purpose of establishing its identity, 
which, however, does not affect its negotiability. 
Never indebted, plea of. In common law pleading, a 
species of traverse which occurs in actions of debt on 
simple contract, and is resorted to when the defendant 
means to deny in point of fact the existence of any 
express contract to the effect alleged in the declaration, 
or to deny the matters of fact from which such contract 
would by law be implied. 
New. As an element in numerous compound terms and 
phrases of the law, this word may denote novelty, or the 
condition of being previously unknown or of recent or 
fresh origin, but ordinarily it is a purely relative term 
and is employed in contrasting the date, origin, or char
acter of one thing with the corresponding attributes of 
another thing of the same kind or class. 
In order to be "new", as that word is used in the 
patent laws, the achievement must be either one that 
produces an unusual or improved or advanced result, 
which was unknown to the same prior art at the time of 
the claimed invention; or the achievement must be one 
that produces an old result in an unusual and substan
tially more efficient, or more economical way. 
New acquisition. An estate derived from any source 
other than descent, devise, or gift from father or mother 
or any relative in the paternal or maternal line. Webb 
v. Caldwell, 198 Ark. 33 1, 128 S.W.2d 691, 694. 
New and useful. The phrase used in the patent laws to 
describe the two qualities of an invention or discovery 
which are essential to make it patentable, viz., novelty, 
or the condition of having been previously unknown, 
and practical utility. To accomplish a new and useful 
result it is not necessary that result before unknown 
should be brought about, but it is sufficient if an old 
result is accomplished in a new and more effective way. 
Hirschy v. Wisconsin-Minnesota Gas & Electric House
hold Appliances Co., D.C.Minn., 18 F.2d 347, 354. An 
invention achieves a new result, where a function which 
had been performed by other means was performed to 
an efficient degree by an association of means never 
before combined, though all of them were old, and some 
of the changes seemed to be only in degree. 
New assets. In the law governing the administration of 
estates, this term denotes assets coming into the hands 
of an executor or administrator after the expiration of 
the time when, by statute, claims against the estate are 
barred so far as regards recourse against the assets with 
which he was originally charged.

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1043 
New assignment. Under common law practice, where 
the declaration in an action is ambiguous, and the 
defendant pleads facts which are literally an answer to 
it, but not to the real claim set up by the plaintiff, the 
plaintiffs course is to reply by way of new assignment; 
i.e., allege that he brought his action not for the cause 
supposed by the defendant, but for some other cause to 
which the plea has no application. 
New cause of action. With reference to the amend
ment of pleadings, this term may refer to a new state of 
facts out of which liability is claimed to arise, or it may 
refer to parties who are alleged to be entitled under the 
same state of facts, or it may embrace both features. 
Amended and supplemental pleadings are permitted un
der Fed.R.Civil P. 15. 
New for old. In making an adjustment of a partial loss 
under a policy of marine insurance, the rule is to apply 
the old materials towards the payment of the new, by 
deducting the value of them from the gross amount of 
the expenses for repairs, and to allow the deduction of 
one-third new fo r old upon the balance. 
New inn. An inn of chancery. See Inns of Chancery. 
New issue. A security being offered to the public for the 
first time. The distribution of new issues is usually 
subject to SEC rules. New issues may be initial public 
offerings by previously private companies or additional 
securities offered by public companies. 
Newly discovered evidence. Evidence of a new and 
material fact, or new evidence in relation to a fact in 
issue, discovered by a party to a cause after the rendi
tion of a verdict or judgment therein. Testimony discov
ered after trial, not discoverable before trial by exercise 
of due diligence. Kash N'Karry Wholesale Supermar
kets, Inc. v. Garcia, Fla.App., 221 So.2d 786, 788. 
Newly discovered evidence such as will support mo
tion for new trial or to reopen for amended findings 
refers to evidence of facts existing at the time of trial of 
which the aggrieved party was excusably ignorant. 
Chromalloy Am. Corp. v. Alloy Surfaces Co., D.C.Del., 55 
F.R.D. 406, 409. To constitute newly discovered evi
dence for which new trial may be granted, evidence 
must pertain to facts in existence at time of trial, and 
not to facts that have occurred subsequently. U. S. v. 
DePugh, D.C.Mo., 266 F.Supp. 417, 434. 
On motion, the court may relieve a party from a 
judgment or order because of newly discovered evidence 
which by due diligence could not have been discovered 
in time to move for a new trial. Fed.R.Civ.P. 60(b). 
Motions for new trial or relief from judgment or order 
based on newly discovered evidence must generally be 
made within a specified time period; see e.g. Fed.R.Civil 
P. 59, 60; Fed.R.Crim.P. 33. 
New matter. In pleading, matters of fact not previously 
alleged by either party in the pleadings, involving, gen
erally, new issues with new facts to be proved. Amend
ed and supplemental pleadings are permitted uI\der 
Fed.R.Civil P. 15 to add new matter. 
NEXT FRIEND 
In patent law, "new matter" is matter involving a 
departure from or in addition to the original disclosure. 
Stearn v. Superior Distributing Company, C.A.Mich., 
674 F.2d 539, 544. Such matter may not be introduced 
into a patent application by way of amendment or 
continuation application. 35 U.S.C.A. § 132. 
New promise. See Promise. 
Newsman's privilege. The alleged constitutional right 
(freedom of speech and press) of a newsman to refuse to 
disclose the sources of his information. See Shield laws. 
Newspaper. A publication, usually in sheet form, in
tended for general circulation, and published regularly 
at short intervals, containing information and editorials 
on current events and news of general interest. 
Off icial newspaper. One designated by a state or munic
ipal legislative body, or agents empowered by them, in 
which the public acts, resolves, advertisements, and no
tices are required to be published. See also Legal news
paper. 
New trial. See Motion for new trial; Plain error rule; Trial; 
Venire facias de novo. 
New York interest. System of computing interest by 
using the exact number of days in a month and not 30 
days uniformly. 
New York Stock Exchange. An unincorporated associ
ation of member firms which handle the purchase and 
sale of securities for themselves and customers. It is the 
oldest and largest stock exchange in the country. 
New York Times v. Sullivan. Landmark case in which 
the U.S. Supreme Court held that the constitutional 
guarantee of a free press and free speech require a 
public official who sues for defamation to prove malice 
on the part of the defendant in the publication of the 
matter. Malice in this context is the publishing of the 
material knowing it to be false or with a reckless dis
regard of its falsity. 376 U.S. 254, 279-280, 84 S.Ct. 
710-726, 11 L.Ed.2d 686. See also Libel. 
Nexi Ineksay/. Lat. In Roman law, bound; bound 
persons. A term applied to such insolvent debtors as 
were delivered up to their creditors, by whom they 
might be held in bondage until their debts were dis
charged. 
Next. Nearest; closest; immediately following. 
Next devisee I nekst d:}vayziy 10 dev:}ziy I. Person to 
whom remainder is given by will. 
Next eventual estate. Estate taking effect upon hap
pening of the event terminating accumulation. In re 
Shupack's Estate, 158 Misc. 873, 287 N.Y.S. 184, 196. 
Next friend. One acting for benefit of infant, or other 
person not sui juris (person unable to look after his or 
her own interests or manage his or her own lawsuit), 
without being regularly appointed guardian. In re Boul
ware's Will, 144 Misc. 235, 258 N.Y.S. \522. A "next 
friend" is not a party to an action, but is an officer of 
the court, especially appearing to look after the interests 
of the minor or the disabled person whom he represents.

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NEXT FRIEND 
Youngblood v. Taylor, Fal., 89 So.2d 503, 505. "Next 
friend" is not substantially different in many jurisdic
tions from "guardian ad litem"; their functions being 
generally the same. von Bulow by Auersperg v. von 
Bulow, D.C.N.Y., 634 F.Supp. 1284, 1293. See also 
Guardian; Parens patriae. 
Next-in, first out (NIFO). An inventory valuation 
method whereby the cost of goods sold is based on the 
replacement cost, rather than the actual cost of the 
goods. This method is not a generally accepted account
ing principle; therefore it is not commonly used. See 
Last-in, first-out (LIFO); First-in, first-out (FIFO). 
Next of kin. In the law of descent and distribution, this 
term denotes the persons nearest of kindred to the 
decedent, that is, those who are most nearly related by 
blood; but it is sometimes construed to mean only those 
who are entitled to take under the statute of distribu
tions (i.e. statutory distributees). See e.g. N.Y. Estates, 
Powers & Trusts § 2- 1.1. 
The term "next of kin" is used with two meanings; (1) 
nearest blood relations according to law of consanguini
ty and (2) those entitled to take under statutory distribu
tion of intestate's estates, and term is not necessarily 
confined to relatives by blood, but may include a rela
tionship existing by reason of marriage, and may well 
embrace persons, who in natural sense of word, and in 
contemplation of Roman law, bear no relation of kinship 
at all. In re Kyle's Autopsy, Okl., 309 P.2d 1070, 1073. 
Within wrongful death statutes, means those who 
inherit from decedent under law of descents and distri
butions. Ellis v. Sill, 190 Kan. 300, 374 P.2d 213, 215. 
Next presentation. In the law of advowsons, the right 
of next presentation is the right to present to the first 
vacancy of a benefice. 
Nexum Ineks::lm/. Lat. In Roman law, in ancient times 
the nexum seems to have been a species of formal 
contract, involving a loan of money, and attended with 
peculiar consequences, solemnized with the "copper and 
balance." Later, it appears to have been used as a 
general term for any contract struck with those ceremo
nies, and hence to have included the special form of 
conveyance called "mancipatio." In a general sense it 
means the obligation or bond between contracting par
ties. 
In Roman law, this word expressed the tie or obli
gation involved in the old conveyance by mancipatio; 
and came latterly to be used interchangeably with (but 
less frequently than) the word "obligatio" itself. 
Nexus. A multistate corporation's taxable income can 
be apportioned to a specific state only if the entity has 
established a sufficient presence, · or nexus, with that 
state. State law, which often follows the Uniform Divi
sion of Income for Tax Purposes Act (UDITP A), specifies 
various activities that lead to such nexus in various 
states. See also UDITPA. 
NGRI. Not guilty by reason of insanity. See Insanity; 
M'Na ghten Rule. 
1044 
Nichills Inik::llz/. In old English practice, debts due to 
the exchequer which the sheriff could not levy, and as to 
which he returned nil. These sums were transcribed 
once a year by the clerk of the nichills, and sent to the 
treasurer's remembrancer's office, whence process was 
issued to recover the "nichill" debts. Both of these 
offices were abolished in 1833. 
Nickname. A short name; one nicked or cut off for the 
sake of brevity, without conveying an idea of opprobri
um, and frequently evincing the strongest affection or 
the most perfect familiarity. 
Niece. The daughter of one's brother or sister, or of 
one's brother-in-law or sister-in-law. 
Niefe Iniyf/. In old English law, a woman born in 
vassalage; a bondwoman. 
Nient Iniy(ent)/. L. Fr. Nothing; not. 
Nient comprise Iniy(ent) k::lmpriyz/. Not comprised; 
not included. An exception taken to a petition because 
the thing desired is not contained in that deed or pro
ceeding whereon the petition is founded. 
Nient culpable Iniy(ent) k�lp::lb::lll. Not guilty. The 
name in French law of the general issue in tort or in a 
criminal action. 
Nient dedire Iniy(ent) d::ldir/. To say nothing; to deny 
nothing; to suffer judgment by default. 
Nient Ie fait Iniy(ent) bfey(t)I . In pleading, not the 
deed; not his deed. The same as the plea of non est 
fa ctum. 
Nient seisi Iniy(ent) siyziy/. In old pleading, not seised. 
The general plea in the writ of annuity. 
NIFO. See Next-in, first out (NIF O). Compare Last-in, 
first-out (LIFO), and First-in, first-out (FI FO). 
Nighttime. Generally, in absence of statutory provision 
to contrary, "nighttime," within definition of burglary, 
is, as was held at common law, that period between 
sunset and sunrise during which there is not enough 
daylight to discern a man's face. State v. Dougherty, 
186 Kan. 820, 352 P.2d 103 1, 1032. The rule. is often 
followed that "nighttime" begins thirty minutes after 
sunset and ends thirty minutes before sunrise, Model 
Penal Code, § 22 1.0 (2); or, that period of time from one 
hour after sunset to one hour before sunrise, Com. v. 
Lavery, 255 Mass. 327, 333-334, 151 N.E. 466, 468. 
The common-law definition is still adhered to in some 
states (e.g. Calif. Penal Code § 7: "The period between 
sunset and sunrise.") but in others "night" has been 
defined by statute (see e.g. Model Penal Code definition 
above). 
Night walkers. In England, described in the statute 5 
Edw. III, c. 14, as persons who sleep by day and walk by 
night. Persons who prowl about at night, and are of a 
suspicious appearance and behavior. Persons whose 
habit is to be abroad at night for the purpose of commit-

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1045 
ting some crime or nuisance or mischief or disturbing 
the peace; not now generally subject to the criminal 
laws except in respect to misdemeanors actually com
mitted, or in the character of vagrants or suspicious 
persons. In a narrower or more popular sense, a night 
walker is a prostitute who walks the streets at night for 
the purpose of soliciting men for lewd purposes. 
Nigrum nunquam excedere debet rubrum Imiygr�m 
na1Jkw�m �ksiyd�riy deb�t ruwbr�m/. The black should 
never go beyond the red [i.e., the text of a statute should 
never be read in a sense more comprehensive than the 
rubric, or title]. 
Nihil Imiy(h)�l/. Lat. Nothing. Often contracted to 
"nil. " The word standing alone is the name of an 
abbreviated form of return to a writ made by a sheriff or 
constable, the fuller form of which would be "nihil est" 
or "nihil habet," according to circumstances. 
Nihil aliud potest rex quam quod de jure potest 
Inay(h)�l rel(i)y�d powt�st reks kwrem kwod diy juriy 
powt�st/. The king can do nothing except what he can 
by law do. 
Nihil capiat per breve /nay(h)�l krepiy�t p;}r briyviy/. 
In practice, that he take nothing by his writ. The form 
of judgment against the plaintiff in an action, either in 
bar or in abatement. When the plaintiff has com
menced his proceedings by bill, the judgment is nihil 
capiat per billam. 
Nihil consensui tam contrarium est quam vis atque 
metus Inay(h)�l k�nsenshuway trem k�ntreriy�m est 
kwrem vis retkwiy miyt�s/. Nothing is so opposed to 
consent as force and fear. 
Nihil dat qui non habet Inay(h)�l dret kway non 
heyb�t/. He gives nothing who has nothing. 
Nihil de re accrescit ei qui nihil in re quando jus 
accresceret habet /nay(h)�l diy riy �kres�t iyay kway 
nay(h)�l in riy kwondow jas �kres�r�t heyb�t/. Nothing 
of a matter accrues to him who, when the right accrues, 
has nothing in that matter. 
Nihil dicit Inay(h)�l dis�trdayO I. He says nothing. The 
name of the judgment which may be taken as of course 
against a defendant who omits to plead or answer the 
plaintiffs declaration or complaint within the time lim
ited. In some jurisdictions it is otherwise known as 
judgment "for want of a plea." 
Judgment taken against party who withdraws his 
answer is judgment nihil dicit, which amounts to confes
sion of cause of action stated, and carries with it, more 
strongly than judgment by default, admission of justice 
of plaintiffs case. See also Nil dicit judgment. 
Nihil dictum quod non dictum prius Inay(h)�l dikt�m 
kwod non dikt�m pray�s/. Nothing is said which was 
not said before. Said of a case where former arguments 
were repeated. 
Nihil est Inay(h)�l est/. There is nothing. A form of 
return made by a sheriff when he has been unable to 
serve the writ. 
NIHILIST 
Nihil est enim liberale quod non idem justum 
Inay(h)�l est iyn�m lib�reyliy kwod non ayd�m jast�m/. 
For there is nothing generous which is not at the same 
time just. 
Nihil est magis rationi consentaneum quam eodem 
modo quodque dissolvere quo confiatum est 
Inay(h)�l est meyj�s rreshiyownay kons�nteyniy�m 
kwrem iyowd�m mowdow kwodkwiy d�zolv�riy kwow 
k�nfleyt�m est/. Nothing is more consonant to reason 
than that a thing should be dissolved or discharged in 
the same way in which it was created. 
Nihil facit error nominis cum de corpore constat 
Inay(h)�l feys�t ehr�r nom�n�s k;}m diy korp�riy 
konstret!. An error as to a name is nothing when there 
is certainty as to the person. 
Nihil habet Inay(h)�l heyb�t/. He has nothing. The 
name of a return made by a sheriff to a scire fa cias or 
other writ which he has been unable to serve on the 
defendant. 
Nihil habet forum ex scena Inay(h)�l heyb�t for�m eks 
siyn�/. The court has nothing to do with what is not 
before it. 
Nihil infra regnum subditos magis conservat in tran
quilitate et concordia quam debita legum adminis
tratio Inay(h)�l infr� regn�m s�bd�tows meYJ�s 
k�ns�rv�t in trre1Jkwil�teytiy et k�nkord(i)y� kwrem 
deb�t� liyg�m �dmin�streysh(iy)ow/. Nothing preserves 
in tranquillity and concord those who are subjected to 
the same government better than a due administration 
of the laws. 
Nihil iniquius quam requitatem nimis intendere 
Inay(h)�l �nikwiy�s est kwrem iykw�teyt�m nim�s 
�ntend�riy/. Nothing is more unjust than to extend 
equity too far. 
Nihil in lege intolerabilius est [quam] eandem rem 
diverso jure censeri Inay(h)�l in liyjiy intol�r�biliy�s 
est kwrem iyrend�m rem d�v�rsow juriy s�nsiray/. Noth
ing is more intolerable in law than that the same 
matter, thing, or case should be subject to different 
views of law. Applied to the difference of opinion enter
tained by different courts, as to the law of a particular 
case. 
Nihilist Iniy(h)�I�st/nayO I. One advocating doctrine of 
nihilism. One devoted to the destruction of the present 
political, religious, and social institutions. 
Nihil magis justum est quam quod necessarium est 
Inay(h)�l meyj�s j�st�m est kwrem kwod nes�seriy�m 
est!. Nothing is more just than that which is necessary. 
Nihil nequam est prresumendum Inay(h)�l nekw�m est 
priyz(y)�mend�m/. Nothing wicked is to be presumed. 
Nihil perfectum est dum aliquid restat agendum 
Inay(h)�l p�rfekt�m est d;}m rel�kwid rest�t �jend�m/. 
Nothing is perfect while anything remains to be done. 
Nihil peti potest ante id tempus quo per rerum natu
ram persolvi possit /nay(h)�l petay powt�st rentiy id 
temp�s kwow p;}r rir�m n�tyur�m p�rsolvay pos�t/.

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NIHIL POSSUMUS CONTRA VERITATEM 
Nothing can be demanded before the time when, by the 
nature of things, it can be paid. 
Nihil possumus contra veritatem Inay(h)�l p6s�m�s 
k6ntr� vehr�teyt�m/. We can do nothing against truth. 
Nihil prrescribitur nisi quod possidetur Inay(h)�l 
pr�skrib�t�r naysay kwod pos�diyt�r I. There is no pre
scription for that which is not possessed. 
Nihil quod est contra rationem est licitum Inay(h)�l 
kw6d est k6ntr� rreshiy6wn�m est lis�t�m/. Nothing 
that is against reason is lawfuL 
Nihil quod est inconveniens est licitum Inay(h)�l 
kw6d est ink�nviyn(i)y�nz est lis�t�m/. Nothing that is 
inconvenient is lawful. A maxim very frequently quot
ed by Lord Coke, but to be taken in modern law with 
some qualification. 
Nihil simul inventum est et perfectum Inay(h)�l 
saym�l �nvent�m est et p�rfekt�m/. Nothing is invent
ed and perfected at the same moment. 
Nihil tam conveniens est naturali requitati quam un· 
umquodque dissolvi eo ligamine quo ligatum est 
Inay(h)�l trem k�nviyn(i)y�nz est nrety�reylay iykw�tey
day kwrem yuwn�mkw6dkwiy d�z6lvay iyow l�geym�niy 
kwow l�geyt�m est/. Nothing is so consonant to natural 
equity as that a thing should be dissolved by the same 
means by which it was bound. 
Nihil tam conveniens est naturali requitati quam yo· 
luntatem domini rem suam in alium transferre ra· 
tam habere Inay(h)�l trem k�nviyn(i)y�nz est nretyurey
lay ekw�teytay kwrem vobnteyt�m dom�nay rem 
s(y)uw�m in eyl(i)y�m trrensf�riy reyt�m h�biriy/. Noth
ing is so consonant to natural equity as to regard the 
intention of the owner in transferring his own property 
to another. 
Nihil tam naturale est, quam eo genere quidque 
dissolvere, quo colligatum est; ideo verborum obli· 
gatio verbis tollitur; nudi consensus obligatio con· 
trario consensu dissolvitur Inay(h)�l trem nretyureyliy 
est, kwrem iyow jen�riy kwidkwiy d�z6Iv�riy, kwow 
kol�geyt�m est; idiyow v�rb6r�m obl�geysh(iy)ow v�rb�s 
t61�t�r; n(y)uwday k�nsens�s obl�geysh(iy)ow k�ntreri
yow k�nsens(y)uw d�z6Iv�t�r/. Nothing is so natural as 
to dissolve anything in the way in which it was bound 
together; therefore the obligation of words is taken 
away by words; the obligation of mere consent is dis
solved by the contrary consent. 
Nihil tam proprium imperio quam legibus vivere 
Inay(h)�l trem pr6wpriy�m impiriyow kwrem liyj�b�s 
vayv�riy/. Nothing is so becoming to authority as to 
live in accordance with the laws. 
Nil Inil/. Lat. Nothing. A contracted form of "nihil," 
which see. 
Nil agit exemplum litem quod lite resolvit Inil eyj�t 
�gzempl�m layt�m kwod laytiy r�z6Iv�tI. An example 
does no good which settles one question by another. 
Nil consensui tam contrarium est quam vis atque 
metus Inil k�nsenshuway trem k�ntreriy�m est kwrem 
1046 
vis retkwiy miyt�s/. Nothing is so opposed to consent as 
force and fear. 
Nil debet Inn deb�tI. He owes nothing. The form of 
the general issue in all actions of debt on simple con
tract. 
Nil dicit judgment. Judgment entered against defen
dant, in proceeding in which he is in court but has not 
filed an answer, is a "nil dicit judgment"; all error of 
pleading being waived, court examines petition only to 
determine if it attempts to state cause of action within 
court's jurisdiction. Gonzalez v. Regalado, Tex.Civ.App., 
542 S.W.2d 689, 691. See also Nihil dicit. 
Nil facit error nominis cum de corpore vel persona 
constat Inil feys�t ehr�r n6m�n�s k;}m diy k6rp�riy vel 
p�rs6wn� k6nstret/. A mistake in the name does not 
matter when the body or person is manifest. 
Nil habuit in tenementis Inn hrebyuw�t �n 
ten�ment�s/. He had nothing [no interest] in the tene
ments. A plea in debt on a lease indented, by which the 
defendant sets up that the person claiming to be land
lord had no title or interest. 
Nil ligatum Inil l�geyt�m/. Nothing bound; that is, no 
obligation has been incurred. 
Nil sine prudenti fecit ratione vetustas Inn sayniy 
pruwdentay feys�t rreshiy6wniy v�t�stres/. Antiquity 
did nothing without a good reason. 
Nil temere novandum Inil tem�riy n�vrend�m/. Noth
ing should be rashly changed. 
Nimia certitudo certitudinem ipsam destruit Inimiy� 
s;}rd�t(y)uwdow s;}rd�t(y)uwd�n�m ips�m d�struw�tI. 
Too great certainty destroys certainty itself. 
Nimia subtilitas in jure reprobatur Inimiy� s;}(b)til�tres 
in juriy repr�beyt�r/. Too much subtlety in law is 
discountenanced. 
Nimium altercando veritas amittitur Inimiy�m olt�r
krendow vehr�tres �mit�t�r/. By too much altercation 
truth is lost. 
Nimmer Inim�r/. A thief; a pilferer. 
Nineteenth Amendment. Known as the women's suf
frage amendment to the U.S. Const., it provides that the 
right of citizens of the U.S. to vote shall not be denied or 
abridged by the U.S. or by any state on account of sex. 
The 19th Amendment was ratified in 1920. See also 
Twenty-Sixth Amendment. 
Ninety (90) day letter. Statutory notice sent by I.R.S. to 
taxpayer of tax deficiency. During the 90 day period 
after the mailing of such notice the taxpayer may either 
pay the tax and seek a refund or not pay the tax and 
challenge such alleged deficiency on petition to the Tax 
Court. I.R.C. §§ 6212, 6213. Notice of Commissioner's 
determination of tax liability must, absent jeopardy, 
precede assessment. Bromberg v. Ingling, c.A.Guam, 
300 F.2d 859, 861 . See also Thirty-day letter. 
Ninth Amendment. This amendment to the U.S. Const. 
provides that the enumeration in the Constitution of 
certain rights, shall not be construed to deny or dispar
age others retained by the people.

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1047 
Nisei Iniysey/. Jap. Second generation. Particularly a 
person born in the United States of Japanese parents. 
See also Kibei. 
Nisi Inaysay/. Lat. Unless. The word is often affixed, 
as a kind of elliptical expression, to the words "rule," 
"order," "decree," "judgment," or "confirmation," to in
dicate that the adjudication spoken of is one which is to 
stand as valid and operative unless the party affected by 
it shall appear and show cause against it, or take some 
other appropriate step to avoid it or procure its revoca
tion. Thus a "decree nisi" is one which will definitely 
conclude the defendant's rights unless, within the pre
scribed time, he shows cause to set it aside or successful
ly appeals. The word, in this sense, is opposed to 
"absolute." And when a rule nisi is finally confirmed, 
for the defendant's failure to show cause against it, it is 
said to be "made absolute." See also Show cause order. 
Nisi decree. An interim decree or order which will 
ripen into a final decree unless something changes, or 
some event takes place. Conditional device decree. See 
also Nisi. 
Nisi feceris Inaysay fiys::lr::ls/. The name of a clause 
commonly occurring in the old manorial writs, com
manding that, if the lords failed to do justice, the king's 
court or officer should do it. By virtue of this clause, 
the king's court usurped the jurisdiction of the private, 
manorial, or local courts. 
Nisi prius Inaysay praY::ls/. The nisi prius courts are 
such as are held for the trial of issues of fact before a 
jury and one presiding judge. In America the phrase 
was formerly used to denote the forum (whatever may 
be its statutory name) in which the cause was tried to a 
jury, as distinguished from the appellate court. 
Nisi prius clause Inaysay praY::ls kloz/. In practice, a 
clause entered on the record in an action at law, autho
rizing the trial of the cause at nisi prius in the particu
lar county designated. It was first used by way of 
continuance. 
Nisi prius roll Inaysay praY::ls rowl!. In practice, the 
roll or record containing the pleadings, issue, and jury 
process of an action, made up for use in the nisi prius 
court. 
NKA. Now known as. 
N.L. An abbreviation of "non liquet" (which see). 
N.L.R.A. National Labor Relations Act. 
N.L.R.B. National Labor Relations Board. 
No-action clause. Provision commonly found in liabili
ty insurance policies to the effect that the insurer is not 
liable to the insured and that no action may be brought 
against the insurer by the insured until an action has 
been brought and the insured has either paid the 
amount to the third person or until a judgment has been 
rendered fixing the amount due or until an agreement 
has been reached. 
No-action letter. Letter written by attorney for govern
mental agency (e.g. S.E.C.) to effect that, if facts are as 
NO CONTEST CLAUSE 
represented in request for ruling, he will advise agency 
not to take action because the facts do not warrant 
prosecution. 
No arrival, no sale. Provision in sales contract that if 
goods do not arrive at destination buyer acquires no 
property therein and does not become liable for price. 
No award. The name of a plea in an action on an 
award, by which the defendant traverses the allegation 
that an award was made. 
Nobiles magis plectuntur pecunia; plebes vero in 
corpore Inowb::lliyz meyj::ls plekt�nt::lr p::lkyuwn(i)Y::l, 
pliybiyz virow in korp::lriy I. The higher classes are 
more punished in money; but the lower in person. 
Nobiles sunt, qui arma gentilitia antecesso�um suo
rum proferre possunt Inowb::lliyz s�nt kway arm::l 
jent::llish(iY)::l rentiysesor::lm s(y)uwor::lm prowfehriy 
pOs::lnt/. The gentry are those who are able to produce 
armorial bearings derived by descent from their own 
ancestors. 
Nobiliores et benigniores prresumptiones in dubiis 
sunt prreferendre In::lbiliyoriyz et b::lnigniyoriyz 
pr::lz�m(p)shiyowniz in d(y)uwbiY::ls s�nt pref::lrrendre/. In 
cases of doubt, the more generous and more benign 
presumptions are to be preferred. A civil-law maxim. 
Nobilitas est duplex, superior et inferior Inowbil::ltres 
est d(y)uwpleks, s::lpiriY::lr et infiriY::lr/. There are two 
sorts of nobility, the higher and the lower. 
Nobility. In English law, a division of the people, com
prehending dukes, marquises, earls, viscounts, and bar
ons. These had anciently duties annexed to their re
spective honors. They are created either by writ, i.e., by 
royal summons to attend the house of peers, or by 
letters patent, i.e., by royal grant of any dignity and 
degree of peerage; and they enjoy many privileges, 
exclusive of their senatorial capacity. Since 1963 no 
new hereditary ennoblements have been created. 
No bill. This phrase, endorsed by a grand jury on the 
indictment, is equivalent to "not found", "no indict
ment", or "not a true bill". It means that, in the 
opinion of the jury, evidence was insufficient to warrant 
the return of a formal charge. See e.g. Fed.R.Crim.P. , 
6(f). See Indictment. 
No bonus clause. In states where applicable, a clause 
under the eminent domain section of a lease, giving the 
lessee the right to recover only the value of his physical 
improvements in the event of a taking, and not the 
value of his leasehold interest (the difference between 
the fixed rent of the lease and current market rental 
value). 
Nocent Inows::lnt/. From Latin "nocere," guilty. "The 
nocent person." 
No contest clause. Provision in a will to the effect that 
the legacy or devise is given on condition that no action 
is taken to contest the will; and if such action is 
initiated, the legacy or devise is forfeited. See also 
Non-contestability clause.

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NOCTANTER 
Noctanter Inoktrentar/. By night; an abolished writ 
which issued out of chancery, and returned to the 
queen's bench, for the prostration of inclosures, etc. 
Noctes and noctem de firma Inoktiyz diy f�rma 
InoktamO I. Entertainment of meat and drink for so 
many nights. 
Nocumentum I nokyam€mtam I . Lat. In old English 
law, a nuisance. Nocumentum damnosum, a nuisance 
occasioning loss or damage. Nocumentum injuriosum, 
an injurious nuisance. For the latter only a remedy was 
given. 
No evidence. Under the rule that the court may render 
judgment non obstante veredicto if directed verdict 
would have been proper, the term "no evidence" does 
not mean literally no evidence at all; "no evidence" 
comprehends those situations wherein by the applica
tion of established principles of law the evidence is 
deemed legally insufficient to establish an asserted prop
osition of fact. Fields v. Burlison Packing Co., Tex.Civ. 
App., 405 S.W.2d 105, 106. "No evidence" points may 
be sustained only when (1) evidence of a vital fact is 
completely absent; (2) rules of law or evidence bar court 
from giving weight to only evidence offered to prove a 
vital fact; (3) no more than a mere scintilla of evidence 
is offered to prove a vital fact; and (4) the evidence 
conclusively establishes the opposite of the vital fact. 
State v. Vargas, Tex.Civ.App., 419 S.W.2d 926, 927. 
No eyewitness rule. The principle by which one who is 
charged with the burden of showing freedom from con
tributory negligence is assumed to have acted with due 
care for his own safety in the absence of eyewitnesses or 
of any obtainable evidence to the contrary. Froman v. 
Perrin, Iowa, 213 N.W.2d 684, 686. The "no eyewitness 
rule" is that where there is no obtainable direct evi
dence of what decedent did or failed to do immediately 
before injury, trier of facts may infer that decedent was 
in exercise of ordinary care for his own safety. Marean 
v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 913. 
No fault. A type of automobile insurance, in force in 
many states, in which each person's own insurance 
company pays for injury or damage up to it certain limit 
regardless of whether its insured was actually at fault. 
See Insurance. 
Also, popular name for a type of divorce in which a 
marriage can be ended on a mere allegation that it, has 
"irretrievably" broken down or because of "irreconcila
ble" differences between the spouses. Under such statu
tory ground for dissolution of marriage, which exists in 
most all states, fault on the part of either spouse need 
not be shown or proved. See Irretrievable breakdown of 
marriage. 
No fault insurance. See Insurance; No fault. 
No funds. Endorsement marked on check when a check 
is drawn on bank in which the drawer has no funds with 
which to cover check. See also Fund or funds. 
No goods. This is the English equivalent of the Latin 
term "nulla bona, " being the form of the return made 
by a sheriff or constable, charged with an execution, 
1048 
when he has found no property of the debtor on which to 
levy. 
N.O.I.B.N. Abbreviation, used under terms of tariffs, 
meaning not otherwise indexed by name. Pennsylvania 
R. Co. v. U. S., Ct.Cl., 42 F.2d 600, 602. 
Nolens volens Inowlenz vowlenz/. Lat. Whether will
ing or unwilling; consenting or not. 
No limit order. An order to buy or sell securities in 
which there is no stipulation as to price. 
Nolissement In'}lismon/. Fr. In French marine law, 
affreightment. 
Nolle prosequi Inoliy prosakway/. Lat. A formal entry 
upon the record, by the plaintiff in a civil suit, or, more 
commonly, by the prosecuting attorney in a criminal 
action, by which he declares that he "will no further 
prosecute" the case, either as to some of the defendants, 
or altogether. The voluntary withdrawal by the prose
cuting attorney of present proceedings on a criminal 
charge. Brantley v. Com., Pennsylvania Bd. of Proba
tion and Parole, 95 Pa.Cmwlth. 641, 506 A.2d 970, 973. 
Commonly called "nol pros". 
No-load fund. A type of mutual fund which charges 
little or nothing for administrative and selling expenses 
in the sale of its shares. See Mutual fund. 
Nolo contendere Inowlow kantendariy/. Latin phrase 
meaning "I will not contest it"; a plea in a criminal case 
which has a similar legal effect as pleading guilty. 
Hudson v. U. S., 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 
L.Ed. 347. Type of plea which may be entered with 
leave of court to a criminal complaint or indictment by 
which the defendant does not admit or deny the charges, 
though a fine or sentence may be imposed pursuant to 
it. Fed.R.Crim.P. l1( a), 12(a). The principal difference 
between a plea of guilty and a plea of nolo contendere is 
that the latter may not be used against the defendant in 
a civil action based upon the same acts. As such, this 
plea is particularly popular in antitrust actions (e.g. 
price fixing) where the likelihood of civil actions follow
ing in the wake of a successful antitrust prosecution is 
very great. 
A defendant may plead nolo contendere only with the 
consent of the court. Such a plea shall be accepted by 
the court only after due consideration of the views of the 
parties and the interest of the public in the effective 
administration of justice. Fed.R.Crim.P. 11 (b). 
Nomen Inowman/. Lat. In the civil law, a name; the 
name, style, or designation of a person. Properly, the 
name showing to what gens or tribe he belonged, as 
distinguished from his own individual name (the prreno
men), from his surname or family name (cognomen), and 
from any name added by way of a descriptive title 
(agnomen). The name or style of a class or genus of 
persons or objects. A debt or a debtor. 
Nomen collectivum Inowman kolaktayvam/. A collec
tive name or term; a term expressive of a class; a term 
including several of the same kind; a term expressive of 
the plural, as well as singular, number.

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1049 
Nomen est quasi rei notamen /nowm;}n est kweysay 
riyay nowteym;}n/. A name is, as it were, the note of a 
thing. 
Nomen generale /nowm;}n jen;}reyliy/. A general 
name; the name of a genus. 
Nomen generalissimum /nowm;}n jen;}r;}lis;}m;}m/. A 
name of the most general kind; a name or term of the 
most general meaning. By the name of "land," which is 
nomen generalissimum, everything terrestrial will pass. 
Nomen juris /nowm;}n ju.r;}s/. A name of the law; a 
technical legal term. 
Nomen non sufficit, si res non sit de jure aut de facto 
/nowm;}n non sM;}s;}t say riyz non sit diy juriy ot diy 
frektow /. A name is not sufficient if there be not a 
thing [or subject for it] de jure or de facto. 
Nomen transcriptitium /nowm;}n trrenskriptishiy;}m/. 
See Nomina transcriptitia. 
Nominal. Titular; existing in name only; not real or 
substantial; connected with the transaction or proceed
ing in name only, not in interest. Park Amusement Co. 
v. McCaughn, D.C.Pa., 14 F.2d 553, 556. Not real or 
actual; merely named, stated, or given, without refer
ence to actual conditions; often with the implication 
that the thing named is so small, slight, or the like, in 
comparison to what might properly be expected, as 
scarcely to be entitled to the name; e.g., a nominal price. 
Lehman v. Tait, C.C.A.Md., 58 F.2d 20, 23. 
Nominal account. In accounting, an income statement 
account which is closed into surplus at the end of the 
year when the books are balanced. 
Nominal capital. Very small or negligible capital, 
whose use in particular business is incidental. Strayer's 
Business College v. Commissioner of Internal Revenue, 
C.C.A.Md., 35 F.2d 426, 429. Capital in name only and 
which is not substantial; not real or actual; merely 
named, stated, or given, without reference to actual 
conditions. Feeders' Supply Co. v. Commissioner of In
ternal Revenue, C.C.A.Mo., 31 F.2d 274, 276. 
Nominal consideration. See Consideration. 
Nominal damages. See Damages. 
Nominal defendant. A person who is joined as defen
dant in an action, not because he is immediately liable 
in damages or because any specific relief is demanded as 
against him, but because his connection with the sub
ject-matter is such that the plaintiffs action would be 
defective, under the technical rules of practice, if he 
were not joined. See also Parties. 
Nominal interest rate. The rate of interest stated in a 
security as opposed to the actual interest yield that is 
based upon the price at which the interest-bearing prop
erty is purchased and the length of time to maturity of 
the obligation. 
Nominal partner. A person who appears to be a part
ner in a firm, or is so represented to persons dealing 
with the firm, or who allows his name to appear in the 
style of the firm or to be used in its business, in the 
NOMINATION PAPER 
character of a partner, but who has no actual interest in 
the firm or business. 
Nominal party. See Nominal defendant; Parties. 
Nominal payee rule. Refers to a U.C.C. Article 3 provi
sion, § 3- 405(1)(b), which renders effective any person's 
indorsement of an instrument drawn by a person who 
intends the payee to have no interest in the instrument. 
Nominal trust. A dry or passive trust in which the 
duties of the trustee are minimal and in which the 
beneficiary has virtual control. 
Nomina mutabilia sunt, res autem immobiles 
/nom;}n;} myuwt;}bil(i)y;} s;}nt, riyz od;}m ;}mowb;}liyz/. 
Names are mutable, but things are immovable [immuta
ble]. A name may be true or false, or may change, but 
the thing itself always maintains its identity. 
Nomina si nescis perit cognitio rerum; et nomina si 
perdas, cerie distinctio rerum perditur /nom;}n;} say 
nes;}s par;}t kognish(iy)ow rir;}m et nom;}n;} say pardres 
sartiy d;}stilJksh(iy)ow rir;}m part;}t;}r/. If you know not 
the names of things, the knowledge of things themselves 
perishes; and, if you lose the names, the distinction of 
the things is certainly lost. 
Nomina sunt notre rerum /nom;}n;} s;}nt nowtiy rir;}m/. 
N ames are the notes of things. 
Nomina sunt symbola rerum /nom;}n;} s;}nt slmb;}l;} 
rir;}m/. Names are the symbols of things. 
Nominate. To name, designate by name, appoint, or 
propose for election or appointment. 
Nominate contracts. In the civil law, contracts having 
a proper or peculiar name and form, and which were 
divided into four kinds, expressive of the ways in which 
they were formed, viz.: (1) Real, which arose ex re, from 
something done; (2) verbal, ex verbis, from something 
said; (3) literal, ex literis, from something written; and 
(4) consensual, ex consensu, from something agreed to. 
Nominatim /nom;}neyt;}m/. Lat. By name; expressed 
one by one. 
Nominating and reducing. A (now obsolete) mode of 
obtaining a panel of special jurors in England, from 
which to select the jury to try a particular action. 
Nominatio auctoris /nom;}neyshow oktor;}s/. Lat. In 
Roman law, a form of plea or defense in an action for 
the recovery of real estate, by which the defendant, sued 
as the person apparently in possession, alleges that he 
holds only in the name or for the benefit of another, 
whose name he discloses by the plea, in order that the 
plaintiff may bring his action against such other. 
Nomination. An appointment or designation of a per
son to fill an office or discharge a duty. The act of 
suggesting or proposing a person by name as a candidate 
for an office. 
Nomination paper. A paper used for selection of candi
dates by a political body which is not a political party 
and is not entitled to use a "nomination petition". Com
monwealth v. Antico, 146 Pa.Super. 293, 22 A.2d 204, 
209.

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NOMINATION TO A LIVING 
Nomination to a living. In English ecclesiastical law, 
the rights of nominating and of presenting to a living 
are distinct, and may reside in different persons. Pre
sentation is the offering a clerk to the bishop. Nomina
tion is the offering a clerk to the person who has the 
right of presentation. Also called Advowson. 
Nominativus pendens Inom;m�tayv�s pendemz/. Lat. 
A nominative case grammatically unconnected with the 
rest of the sentence in which it stands. The opening 
words in the ordinary form of a deed inter partes, "This 
indenture," etc., down to "whereas," though an intelligi
ble and convenient part of the deed, are of this kind. 
Nomina transcriptitia In6m�n� trrenskr�ptish(iy)�/. In 
Roman law, obligations contracted by literre (i.e., literis 
obligationes) were so called because they arose from a 
peculiar transfer (transcriptio) from the creditor's day
book (adversaria) into his ledger (codex). 
Nomina villarum In6m�n� v�ler�m/. In English law, 
an account of the names of all the villages and the 
possessors thereof, in each county, drawn up by several 
sheriffs (9 Edw. II), and returned by them into the 
exchequer, where it is still preserved. 
Nomine In6m�niy/. Lat. By name; by the name of; 
under the name or designation of. 
Nominee Inom�niy/. One who has been nominated or 
proposed for an office. One designated to act for anoth
er in his or her place. 
A form of securities registration widely used by insti
tutional investors to avoid onerous requirements of es
tablishing the right of registration by a fiduciary. 
One designated to act for another as his representa
tive in a rather limited sense; e.g. stock held by broker
age firm in street name to facilitate transactions even 
though customer is actual owner of securities. It is used 
sometimes to signify an agent or trustee. It has no 
connotation, however, other than that of acting for an
other, in representation of another, or as the grantee of 
another. Schuh Trading Co. v. Commissioner of Inter
nal Revenue, C.C.A.Ill., 95 F.2d 404, 411. 
Nominee trust. An arrangement for holding title to 
real property under which one or more persons or corpo
rations, pursuant to a written declaration of trust, de
clare that they will hold any property that they acquire 
as trustees for the benefit of one or more undisclosed 
beneficiaries. 
Nomine prenre In6m�niy piyniy/. In the name of a 
penalty. 
In the civil law, a legacy was said to be left nomine 
prenre where it was left for the purpose of coercing the 
heir to do or not to do something. 
The term has also been applied, in English law, to 
some kinds of covenants, such as a covenant inserted in 
a lease that the lessee shall forfeit a certain sum on 
non-payment of rent, or on doing certain things, as 
plowing up ancient meadow, and the like. 
Nomocanon Inowmokren�n/. (1) A collection of canons 
and imperial laws relative or · conformable thereto. The 
1050 
first nomocanon was made by Johannes Scholasticus in 
554. Photius, patriarch of Constantinople, in 883, com
piled another nomocanon, or collation of the civil laws 
with the canons; this is the most celebrated. Balsamon 
wrote a commentary upon it in 1180. (2) A collection of 
the ancient canons of the apostles, councils, and fathers, 
without regard to imperial constitutions. 
Nomographer In�m6gr�f�r/. One who writes on the 
subject of laws. 
Nomography In�m6gr�fiy/. A treatise or description of 
laws. 
Nomotheta Inowm�thiyt�/. A lawgiver; such as Solon 
and Lycurgus among the Greeks, and Cresar, Pompey, 
and Sylla among the Romans. 
Non. Lat. Not. The common prefix of negation. 
Non-ability. Want of ability to do an act in law, as to 
sue. A plea founded upon such cause. 
Non-acceptance. A buyer's right under a contract of 
sale to reject the goods because of non-conformance with 
the contract. U.C.C. § 2-601 (a). Failure or refusal of a 
drawee to accept a draft or bill. The refusal to accept 
anything. 
Non acceptavit In6n reksepteyv�tI. In common law 
pleading, the name of a plea to an action of assumpsit 
brought against the drawee of a bill of exchange by 
which he denies that he accepted the same. 
Non-access. Absence of opportunities for sexual inter
course between husband and wife; or the absence of 
such intercourse. Defense interposed by alleged father 
in paternity cases. 
Non accipi debent verba in demonstrationem falsam, 
qure competunt in limitationem veram Inon reks�pay 
deb�nt v;}rb� in dem�nstreyshiy6wn�m f61s�m, kwiy 
k6mp�d�nt in lim�teyshiy6wn�m vir�m/ . Words ought 
not to be taken to import a false demonstration which 
may have effect by way of true limitation. 
Non accrevit infra sex annos In6n �kriyv�t infr� seks 
renows/. It did not accrue within six years. The name 
of a plea by which the defendant sets up the statute of 
limitations against a cause of action which is barred 
after six years. 
Nonacquiescence. An administrative agency's policy of 
declining to be bound by judicial precedent which is 
contrary to the agency's interpretation of its organic 
statute, until the Supreme Court has ruled on the issue. 
At its most extreme, it is the policy of disregarding the 
decisions of federal courts within the circuit in which 
they sit when those decisions conflict with the Secre
tary's own policies. Stieberger v. Heckler, D.C.N.Y., 615 
F.Supp. 1315, 13 21. A more limited version is an agen
cy's refusal to give nationwide effect to the holdings of a 
particular court of appeals. Lopez v. Heckler, C.C.A. 
Cal., 725 F.2d 1489, 1503. Sometimes abbreviated as 
non-acqu. or NA. Compare Acquiescence. 
Non-admission. The refusal of admission.

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1051 
Nonre et decimre Inowniy et des�miy/. In old European 
law, payments made to the church, by those who were 
tenants of churchfarms. The first was a rent or duty for 
things belonging to husbandry; the second was claimed 
in right of the church. 
Non-age. Lack of requisite legal age. A minor. In 
general, the legal status of a person who is under 
eighteen years of age. See Minor. 
Nonagium or nonage Inowneyj(iy)�m/nown�j/. In old 
European law, a ninth part of movables which was paid 
to the clergy on the death of persons in their parish, and 
claimed on pretense of being distributed to pious uses. 
Non alio modo puniatur aliquis quam secundum 
quod se habet condemnatio Inon eyliyow mowdow 
pyUwniyeyt�r rel�kwis kwrem s�k;Jnd�m kwod siy heyb�t 
kondemneysh(iy)ow I. A person may not be punished 
differently than according to what the sentence enjoins. 
Non aliter a significatione verborum recedi oportet 
quam cum manifestum est, aliud sensisse testato
rem Inon eyl�t�r ey sign�f�keyshiyowniy v�rbor�m 
r�siyday �port�t kwrem k�m mren�fest�m est, eyliy�d 
sensisiy test�tor�m/. We must never depart from the 
signification of words, unless it is evident that they are 
not conformable to the will of the testator. 
Non-ancestral estate. Realty coming to deceased in any 
way other than by descent or devise from a now dead 
ancestor, or by deed of actual gift from a living one, 
there being no other consideration than that of blood. 
One acquired by purchase or by act or agreement of the 
parties, as distinguished from one acquired by descent or 
by operation of law. 
Non-apparent easement. A non-continuous or discon
tinuous easement. See Easement. 
Non-appearance. A failure of appearance; the omis
sion of the defendant to appear within the time limited. 
See Default. 
Non-assessable. This word, placed upon a certificate of 
stock, does not cancel or impair the obligation to pay the 
amount due upon the shares created by the acceptance 
and holding of such certificate. At most its legal effect 
is a stipulation against liability from further assessment 
or taxation after the entire subscription of one hundred 
per cent. shall have been paid. Upton v. Tribilcock, 91 
U.S. 45, 23 L.Ed. 203. 
Non assumpsit Inon �s;Jm(p)s�t/. The general issue in 
the action of assumpsit; being a plea by which the 
defendant avers that uhe did not undertake" or promise 
as alleged by the plaintiff. See Assumpsit. 
Non assumpsit infra sex annos Inon �s;Jm(p)s�t infr� 
seks renows/. He did not undertake within six years. 
The name of the plea of the statute of limitations, in the 
action of assumpsit. 
Non auditur perire volens Inon ot�d�r p�rayriy 
vowlenz/. He who is desirous to perish is not heard. 
He who confesses himself guilty of a crime, with the 
view of meeting death, will not be heard. A maxim of 
the foreign law of evidence. 
NONCONFORMING USE 
Non-bailable. Not admitting of bail; not requiring bail. 
Non bis in idem Inon bis in ayt;)m/. Not twice for the 
same; that is, a man shall not be twice tried for the 
same crime. This maxim of the civil law expresses the 
same principle as the familiar rule of our law that a 
man shall not be twice Uput in jeopardy" for the same 
offense. 
Non-cancellable Inon krens;}l�b;}l/. Such provision in 
insurance policy precludes insurer from cancelling poli
cy after an illness or accident, so long as the premium 
has been paid. Dudgeon v. Mutual Ben. Health & 
Accident Ass'n, C.C.A.W.Va., 70 F.2d 49, 52. 
Non cepit Inon siyp;}t/. He did not take. The general 
issue in replevin, where the action is for the wrongful 
taking of the property; putting in issue not only the 
taking, but the place in which the taking is stated to 
have been made. 
Non-claim. The omission or neglect of person who ought 
to claim his right within the time limited by law. 
Covenant of non-claim. See Covenant. 
Non-combatant. A person connected with an army or 
navy, but for purposes other than fighting; such as the 
surgeons and chaplains or conscientious objectors. Also 
a neutral. 
Non-commissioned. A non-commissioned officer of the 
armed services is an officer who holds his rank, not by 
commission from the executive authority, but by ap
pointment by a superior officer. 
Non compos mentis Inon komp;)s ment;}s/. Lat. Not 
sound of mind; insane. This is a very general term, 
embracing all varieties of mental infirmity. See Incom
petency; Insanity. 
Non concedantur citationes priusquam exprimatur 
super qua re fieri debet citatio Inon kons;)drent;}r 
s;}teyshiyowniyz praY;Jskw;}m ekspr;}meyt;}r s(y)uwp�r 
kwey riy fay;}ray deb;}t sayteysh(iy)ow/. Summonses 
should not be granted before it is expressed on what 
matter the summons ought to be made. 
Non concessit Inon k;}nses;}t/. Lat. He did not grant. 
The name of a common law plea denying a grant, which 
could be made only by a stranger. 
Nonconforming lot. A lot the area, dimension or loca
tion of which was lawful prior to the adoption, revision 
or amendment of a zoning ordinance, but now fails to 
conform to the requirements of the zoning district in 
which it is located by reason of such adoption, revision, 
or amendment. 
Nonconforming use. A structure the size, dimension or 
location of which was lawful prior to the adoption, 
revision or amendment of a zoning ordinance, but which 
fails to conform to the requirements of the zoning dis
trict in which it is located by reasons of such adoption, 
revision or amendment. A use which does not comply 
with present zoning provisions but which existed lawful
ly and was created in good faith prior to the enactment 
of the zoning provision. Camaron Apartments, Inc. v.

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NONCONFORMING USE 
Zoning Bd. of Adjustment of City of Philadelphia, 14 
Pa.Cmwlth. 571, 324 A.2d 805, 807. 
Uses permitted by zoning statutes or ordinances to 
continue notwithstanding that similar uses are no long
er permitted in area in which they are located. Beyer v. 
Mayor and Council of Baltimore City, 182 Md. 444, 34 
A.2d 765, 766. 
See also Variance. 
Non-conformist. One who refuses to comply with oth
ers; one who refuses to join in the established forms of 
custom, belief, styles, usages, rules, etc. 
Non consentit qui errat Inon k;:ms€mt�t kwity ehr�t/. 
He who mistakes does not consent. 
Non constat Inon konst�tI. Lat. It does not appear; it 
is not clear or evident. A phrase used in general to 
state some conclusion as not necessarily following al
though it may appear on its face to follow. 
Non-contestability clause. Clause in insurance policy 
that precludes insurer from contesting policy on basis of 
fraud or mistake after a specified period of time (e.g., 
two years) when insured has acted thereon to his detri
ment by payments of premiums and foregoing other 
insurance. See also Incontestability clause. 
Non-continuous easement. "Continuous easement" is 
one which may be enjoyed without any act by party 
claiming it, while "noncontinuous easement," such as 
right of way, is one to enjoyment of which party's act is 
essential. A non-apparent or discontinuous easement. 
See Easement. 
Noncontribution clause. In fire insurance policies, a 
provision that only the interests of the owner and first 
mortgagee are protected under the policy. 
Non culpabilis Inon k�lpeyb�l�s/. Lat. In pleading, 
not guilty. It is usually abbreviated "non cui." 
Noncumulative dividends. Commonly incident to pre
ferred stock if a dividend is "passed" (not paid) in a 
particular year or period; such passed dividends are 
gone forever and there is no obligation to pay such when 
the next dividend is paid. 
Noncumulative voting. Also called "straight" voting, 
such voting rights limit a shareholder to voting no more 
than the number of shares he owns for a single candi
date. In noncumulative voting, a majority shareholder 
will elect the entire board of directors. Compare Cumu
·I ative voting. 
Non damnificatus Inon dremn�f�keyt�s/. Lat. Not in
jured. 
A common law plea in an action of debt on an indem
nity bond, or bond conditioned "to keep the plaintiff 
harmless and indemnified," etc. It is in the nature of a 
plea of performance, being used where the defendant 
means to allege that the plaintiff has been kept harm
less and indemnified, according to the tenor of the 
condition. 
Non dat qui non habet Inon dret kway non heyb� t/. 
He who has not does not give. 
1052 
Non debeo melioris conditionis esse, quam auctor 
meus a quo jus in me transit Inon debiyow miyliyor�s 
k�ndishiyown�s esiy kwrem okt�r miy�s ey kwow j�s in 
miy trrenz�t/. I ought not to be in better condition than 
he to whose rights I succeed. 
Non deberet alii nocere quod inter alios actum esset 
Inon deb�r�t eyliyay nos�riy kwod int�r eyliyows rekt�m 
es�tI. No one ought to be injured by that which has 
taken place between other parties. 
Non debet actori licere quod reo non permittitur 
Inon deb�t rektoray l�siriy kwod riyow non p�rmit�t�r/. 
A plaintiff ought not to be allowed what is not permitted 
to a defendant. A rule of the civil law. 
Non debet adduci exceptio ejus rei cujus petitur 
dissolutio Inon deb�t �d(y)uwsay �ksepsh(iy)ow iyj�s 
riyay k(y)uwj�s pet�t�r dis�l(y)uwsh(iy)ow/. A plea of 
the same matter the dissolution of which is sought [by 
the action] ought not to be brought forward. 
Non debet alii nocere, quod inter alios actum est 
Inon deb�t eyliyay n�siriy, kwod int�r eyliyows rekt�m 
est/. A person ought not to be prejudiced by what has 
been done between others. 
Non debet alteri per alterum iniqua conditio inferri 
Inon deb�t olt�ray p�r olt�r�m �naykw� k�ndish(iy)ow 
infehray I. A burdensome condition ought not to be 
brought upon one man by the act of another. 
Non debet cui plus licet, quod minus est non licere 
Inon deb�t kwuway pl�s lis�t, kwod mayn�s est non 
l�siriy I. He to whom the greater is lawful ought not to 
be debarred from the less as unlawful. 
Non debet dici tendere in prrejudicium ecclesiasticre 
liberatatis quod pro rege et republica necessarium 
videtur Inon deb�t daysay tend�riy in prejuwdish(iy)�m 
�kliyziyrest�siy lib�r(�)teyt�s kwod prow riyjiy et 
r�p�bbk� nes�seriy�m v�diyd�r I. That which seems 
necessary for the king and the state ought not to be said 
to tend to the prejudice of spiritual liberty. 
Non decet homines dedere causa non cognita Inon 
des�t hom�niyz ded�riy koz� non kogn�t�/. It is unbe
coming to surrender men when no cause is shown. 
Non decimando Inon des�mrendow/. See De non deci
man do. 
Non decipitur qui scit se decipi Inon d�sip�t�r kwity sit 
siy des�pay I. He is not deceived who knows himself to 
be deceived. 
Non dedit Inon diyd�t/. Lat. In old pleading, he did 
not grant. The general issue in formedon. 
Non definitur in jure quid sit conatus Inon d�fin�t�r 
in juriy kwid sit k�neyt�s/. What an attempt is, is not 
defined in law. See Attempt. 
Non-delivery. Neglect, failure, or refusal to deliver 
goods, on the part of a carrier, vendor, bailee, etc. 
Refers to a bailee who refuses to, or is unable to, 
surrender goods to a person entitled under a document 
of title covering them. 
Non demisit Inon d�mayz�t/. Lat. He did not demise.

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1053 
Non-detachable facilities. Facilities which may not be 
put back into channels of commerce. Briggs Mfg. Co. v. 
U. S., D.C.Conn., 30 F.2d 962, 967. 
Non detinet Inon det;}n;}t/. Lat. He does not detain. 
The name of the general issue in the action of detinue. 
The general issue in the action of replevin, where the 
action is for the wrongful detention only. 
Non differunt qure concordant re, tametsi non in 
verbis iisdem Inon dif;}r;}nt kwiy k;}nkordrent riy, 
tremetsay non in v�rb;}s iyaysd;}m/. Those things do not 
differ which agree in substance, though not in the same 
words. 
Non dimisit Inon d;}mayz;}t/. L. Lat. He did not de
mise. A common law plea resorted to where a plaintiff 
declared upon a demise without stating the indenture in 
an action of debt for rent. Also, a plea in bar, in 
replevin, to an avowry for arrears of rent, that the 
avowant did not demise. 
Non-direction. Omission on the part of a judge to 
properly instruct the jury upon a necessary conclusion 
of law. 
Non-disclosure. A failure to reveal facts, which may 
exist when there is no "concealment." State v. Watson, 
145 Kan. 792, 67 P.2d 515, 517. See Fraud; Material fact; 
Misrepresentation. 
Non distringendo Inon distrinjendow/. A writ not to 
distrain. 
Non dubitatur, etsi specialiter venditor evictionem 
non promiserit, re evicta, ex empto competere ac
tionem Inon d(y)uwb;}teyt;}r, etsay speshiyeyl;}t;}r 
vend;}d;}r ;}vikshiyown;}m non pr;}mis;}r;}t, riy ;}vikt;}, eks 
emptow k;}mpet;}riy rekshiyown;}m/. It is certain that, 
although the vendor has not given a special guaranty, 
an action ex empto lies against him, if the purchaser is 
evicted. 
Non efficit affectus nisi sequatur effectus Inon ef;}S;}t 
;}fekt;}s naysay s;}kweyt;}r ;}fekt;}s/. The intention 
amounts to nothing unless the effect follow. 
Non erit alia lex Romre, alia Athrenis; alia nunc, alia 
posthac; sed et omnes gentes, et omni tempore, una 
lex, et sempiterna, et imm"ortalis continebit Inon 
ehr;}t eyliy;} leks rowmiy, eyliy;} ;}Oiyn;}s, eyliy;} n�l)k, 
eyliy;} powsthrek; sed et omniyz jentiyz et omnay 
temp;}riy yUwn;} leks, et semp;}t�rn;} et imorteyl;}s, 
kont;}niyb;}t/. There will not be one law at Rome, 
another at Athens; one law now, another hereafter; but 
one eternal and immortal law shall bind together all 
nations throughout all time. 
Nones I nownzl . In the Roman calendar, the fifth, and, 
in March, May, July, and October, the seventh, day of 
the month. So called because, counting inclusively, they 
were nine days from the ides. 
Non est arctius vinculum inter homines quam jusju
randum Inon est arkshiy;}s vil)k(y);}bm int;}r hom;}niyz 
kwrem j�sj;}rrend;}ml . There is no closer [ or firmer] bond 
between men than an oath. 
NON EST REGULA QUIN FALLET 
Non est certandum de regulis juris Inon est s;}rtrend;}m 
diy regy;}l;}s jur;}s/. There is no disputing about rules of 
law. 
Non est consonum rationi, quod cognitio accessorii 
in curia christianitatis impediatur, ubi cognitio 
causre principalis ad forum ecclesiasticum noscitur 
pertinere Inon est kons;}n;}m rreshiyownay kwod 
kognish(iy)ow reks;}soriyay in kyuriy;} kristiyren;}teyt;}s 
impiydiyeyt;}r, yuwbay kognish(iy)ow koziy prins;}peyl;}s 
red for;}m ;}kliyziyrest;}k;}m nos;}t;}r p;}rt;}niriy I. It is un
reasonable that the cognizance of an accessory matter 
should be impeded in an ecclesiastical court, when the 
cognizance of the principal cause is admitted to apper
tain to an ecclesiastical court. 
Non est disputandum contra principia negantem 
Inon est dispy;}trend;}m kontr;} prinsipiy;} n;}grent;}m/. 
We cannot dispute against a man who denies first prin
ciples. 
Non est factum Inon est frekt;}m/. Lat. A plea denying 
execution of instrument sued on. Blair v. Lockwood, 
226 Ky. 412, 11 S.W.2d 107, 109. 
Non est inventus Inon est invent;}s/. Lat. He is not 
found. The sheriffs return to process requiring him to 
arrest the body of the defendant, when the latter is not 
found within his jurisdiction. It is often abbreviated, 
"n. e. i., " or written, in English, "not found." 
Non est justum aliquem antenatum post mortem fa
cere bastardum qui toto tempore vitre sure pro legiti
mo habebatur Inon est j�st;}m rel;}kw;}m rentiyneyt;}m 
powst mort;}m feys;}riy brestard;}m kway towtow 
temp;}riy vaytiy s(y)uwiy prow bjid;}mow hreb;}beyt;}r/. 
It is not just to make an elderborn a bastard after his 
death, who during his lifetime was accounted legitimate. 
Non est novum ut priores leges ad posteriores tra
hantur Inon est nowv;}m �t prayoriyz liyjiyz red 
p;}stiriyoriyz tr;}hrent;}r I. It is no new thing that prior 
statutes should give place to later ones. 
Non est recedendum a communi observantia Inon est 
res;}dend;}m ey k;}myuwnay obz;}rvrensh(iy);}/. There 
should be no departure from a common observance. 
Non est regula quin fallet /non est regy;}l;} kwin fol;}t/. 
There is no rule but what may fail. 
Non est reus nisi mens sit rea Inon est riy;}s naysay 
menz sit riy;} I . One is not guilty unless his intention be 
guilty. This maxim is much criticized and is only appli
cable when the absence of intent reduces the seriousness 
of the crime. See Actus non facit reum, etc.; Mens rea. 
Non est singulis concedendum, quod per magistra
tum publice possit fieri, ne occasio sit majoris tu
multus faciendi Inon est sil)gy;}l;}s kons;}dend;}m kwod 
p�r mrej;}streyt;}m p�bl;}siy POS;}t fay;}ray, niy 
;}keyzh(iy)ow sit m;}jor;}s t;}m�lt;}s freshiy€mday I. That is 
not to be conceded to private persons which can be 
publicly done by the magistrate, lest it be the occasion of 
greater tumults.

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NONFEASANCE 
Non exemplis sed legibus judicandum est Inon 
;:)gzempbs sed liyj;:)b;:)s juwd;:)krend;:)m est/. Not by the 
facts of the case, but by the law must judgment be made. 
Non ex opinionibus singulorum, sed ex communi usi, 
nomina exaudiri debent Inon eks ;:)piniyown;:)b;:)s 
siIJgy;:)lor;:)m sed eks k;:)myuwnay yuws(y)uw nom;:)n;:) 
eksodayray deb;:)nt/. The names of things ought to be 
understood, not according to the opinions of individuals, 
but according to common usage. 
Non facias malum, ut inde fiat bonum Inon feysh(iy);:)s 
mrel;:)m at indiy fay;:)t b6wn;:)ml . You are not to do evil, 
that good may be or result therefrom. 
Nonfeasance Inonfiyz;:)ns/. Nonperformance of some 
act which person is obligated or has responsibility to 
perform; omission to perform a required duty at all; or, 
total neglect of duty. Desmarais v. Wachusett Regional 
School Dist., 360 Mass. 591, 276 N.E.2d 691, 693. As 
respects public officials, "nonfeasmtce" is substantial 
failure to perform a required legal duty, while "misfea
sance" is the doing in a wrongful manner that which the 
law authorizes or requires a public officer to do. Schu
macher v. State ex reI. Furlong, 78 Nev. 167, 370 P.2d 
209, 211. 
There is a distinction between "nonfeasance" and 
"misfeasance" or "malfeasance"; and this distinction is 
often of great importance in determining an agent's 
liability to third persons. "Nonfeasance" means the 
total omission or failure of an agent to enter upon the 
performance of some distinct duty or undertaking which 
he has agreed with his principal to do; "misfeasance" 
means the improper doing of an act which the agent 
might lawfully do, or, in other words, it is the perform
ing of his duty to his principal in such a manner as to 
infringe upon the rights and privileges of third persons; 
and "malfeasance" is a doing of an act which he ought 
not to do at all. 
Compare Malfeasance; Misfeasance. 
Non fecit Inon fiys;:)tI. Lat. He did not make it. A 
plea in an action of assumpsit on a promissory note. 
Non fecit vastum contra prohibitionem Inon fiys;:)t 
vrest;:)m kontr;:) prow(h);:)bishiyown;:)m/. He did not com
mit waste against the prohibition. A plea to an action 
founded on a writ of estrepement for waste. 
Non-forfeitable. Not subject to forfeiture. Columbian 
Nat. Life Ins. Co. v. Griffith, C.C.A.Mo., 73 F.2d 244, 246. 
See also Non-leviable. 
Non-freehold estates. All estates in real property with
out seisin; hence, all estates except the fee simple, fee 
tail and life estates are non-freehold. 
Non-functional. A feature of goods is "non-functional" 
if it does not affect their purpose, action or performance, 
or the facility or economy of processing, handling or 
using them. In effect a mere form of merchandising or 
a business method. J. C. Penney Co. v. H. D. Lee 
Mercantile Co., C.C.A.Mo., 120 F.2d 949, 954. A feature 
if, when omitted, nothing of substantial value in the 
goods is lost. Ainsworth v. Gill Glass & Fixture Co., 
D.C.Pa., 26 F.Supp. 183, 187. 
1054 
Non hrec in fredera veni Inon hiyk in fed;:)r;:) viynay/. I 
did not agree to these terms. 
Non impedit clausula derogatoria quo minus ad ea
dem potestate res dissolvantur a qua constituuntur 
Inon impiyd;:)t kloz(y);:)l;:) d;:)rog;:)toriy;:) kwow mayn;:)s red 
iyeyd;:)m powt;:)steytiy riyz d;:)zolvrent;:)r ey kwey k;:)n
stit(y)uw�nt;:)r/. A derogatory clause does not impede 
things from being dissolved by the same power by which 
they are created. 
Non impedivit Inon imp;:)dayv;:)t/. Lat. He did not 
impede. The plea of the general issue in quare impedit. 
The Latin form of the law French "ne disturba pas." 
Non implacitando aliquem de libero tenemento sine 
brevi Inon implres;:)trendow rel;:)kwem diy lib;:)row 
ten;:)mentow sayniy briyvay/. A writ to prohibit bailiffs, 
etc., from distraining or impleading any man touching 
his freehold without the king's writ. 
Non infregit conventionem Inon infriyj;:)t k;:)nven
shiyown;:)m/. Lat. He did not break the contract. The 
name of a plea sometimes pleaded in the action of 
covenant, and intended as a general issue, but held to be 
a bad plea; there being, properly speaking, no general 
issue in that action. 
Non in legendo sed in intelligendo legis consistunt 
Inon in l;:)jendow sed in intel;:)jendow liyjiyz k;:)nsist;:)ntl. 
The laws consist not in being read, but in being under
stood. 
Noninsurable risk. A hazard or risk for which insur
ance will not be written because not subject to evalua
tion by actuarial computations; such risk being too 
uncertain. 
Non-intercourse. The refusal of one state or nation to 
have commercial dealings with another; similar to an 
embargo (q. v.). 
The absence of access, communication, or sexual rela
tions between husband and wife. See Non-access. 
Non interfui Inon int�rf(y)uway/. I was not present. A 
reporter's note. 
Non-intervention will. A term sometimes applied to a 
will which authorizes the executor to settle and distrib
ute the estate without the intervention of the court and 
without giving bond. 
Non intromittant clause Inon intr;:)mit;:)nt kloz/. In 
English law, a clause of a charter of a municipal bor
ough, whereby the borough is exempted from the juris
diction of the justices of the peace for the county. 
Non intromittendo, quando breve prrecipe in capite 
subdole impetratur Inon intr;:)m;:)tendow, kwondow 
briyviy pres;:)piy in krep;:)tiy s�bd;:)liy imp;:)treyt;:)r/. In 
old English law, a writ addressed to the justices of the 
bench, or in eyre, commanding them not to give one, 
who, under color of entitling the king to land, etc., as 
holding of him in capite, had deceitfully obtained the 
writ called "prrecipe in capite," any benefit thereof, but 
to put him to his writ of right . .

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1055 
Non-issuable pleas. Those upon which a decision would 
not determine the action upon the merits, as a plea in 
abatement. 
Non-joinder. See Joinder. 
Non-judicial day. Day on which process cannot ordi
narily issue or be executed or returned, and on which 
courts do not usually sit. Vidal v. Backs, 218 Cal. 99, 21 
P.2d 952. 
Non juridicus Inon j;)rid;)k;)s/. Not judicial; not legal. 
Dies non juridicus is a day on which legal proceedings 
cannot be had. 
Non-jurors. In English law, persons who refuse to take 
the oaths, required by law, to support the government. 
Originally those who refused to swear allegiance to the 
successors on the throne of the falsely deposed Stuarts. 
Non jus ex regula, sed regula ex jure Inon j�s eks 
regy;)l;) sed regy;)l;) eks juriy I. The law does not arise 
from the rule (or maxim), but the rule from the law. 
Non jus, sed seisina, facit stipitem Inon j�s sed siyz;)n;) 
feys;)t stip;)t;)m/. Not right, but seisin, makes a stock. 
It is not a mere right to enter on lands, but actual seisin, 
which makes a person the root or stock from which all 
future inheritance by right of blood must be derived. 
Non-leviable Inon leviy;)b;)l/. Not subject to be levied 
upon. Property exempt from seizure, forfeiture or sale 
in bankruptcy, attachment, garnishment, etc. Non-levi
able assets are assets upon which an execution cannot 
be levied. See also Exemption; Homestead. 
Non licet quod dispendio licet Inon lis;)t kwod d;)spen
diyow lis;)t/. That which may be [ done only] at a loss is 
not allowed [to be done]. The law does not permit or 
require the doing of an act which will result only in loss. 
The law forbids such recoveries whose ends are vain, 
changeable, and unprofitable. 
Non liquet Inon likw;)trlaykw;)t/. Lat. It is not clear. 
In the Roman courts, when any of the judges, after the 
hearing of a cause, were not satisfied that the case was 
made clear enough for them to pronounce a verdict, they 
were privileged to signify this opinion by casting a ballot 
inscribed with the letters "N. L.," the abbreviated form 
of the phrase "non liquet." 
Nonliquidating distribution. A payment made by a 
partnership or corporation to the entity's owner when 
the entity's legal existence does not cease thereafter. 
Compare Distribution in liqui dation. 
Non-mailable. A term applied to all letters and parcels 
which are by law excluded from transportation in the 
United States mails, whether on account of the size of 
the package, the nature of its contents, its obscene 
character, or for other reasons. 
Non-medical policy. Insurance policy issued without 
medical examination of an applicant. Reserve Loan 
Life Ins. Co. of Texas v. Brown, Tex.Civ.App., 159 S.W.2d 
179, 180. 
Non merchandizanda victualia Inon m�rch;)nd;)zrend;) 
viktyuweyl(i)y;)I . An ancient writ addressed to justices 
NON OBSTANTE VEREDICTO 
of assize, to inquire whether the magistrates of a town 
sold victuals in gross or by retail during the time of 
their being in office, which was contrary to an obsolete 
statute; and to punish them if they did. 
Non-merchantable title. The title to realty need not be 
bad in fact to render it "non-merchantable", but it is 
sufficient, if an ordinarily prudent man with knowledge 
of facts and aware of legal questions involved would not 
accept it in ordinary course of business. Ghormley v. 
Kleeden, 155 Kan. 319, 124 P.2d 467, 470. Compare 
Merchantable title. 
Non molestando Inon mowl;)strendow/. A writ that lay 
for a person who was molested contrary to the king's 
protection granted to him. 
Non nasci, et natum mori, paria sunt Inon nresay et 
neyt;)m moray preriy;) s�nt/. Not to be born, and to be 
dead-born, are the same. 
Non-navigable. At common law, streams or bodies of 
water not affected by tide were "non-navigable". Lusch
er v. Reynolds, 153 Or. 625, 56 P.2d 1158, 11 62. Bodies 
of water other than navigable waters (q.v.). 
Non-negotiable. Not negotiable; not capable of passing 
title or property by indorsement and delivery. Any 
document of title that is not a negotiable document. An 
instrument which may not be transferred by indorse
ment and delivery or by delivery alone, though it may 
be assigned. The transferee does not become a holder 
unless it is negotiated. Compare Negotiable. 
Non obligat lex nisi promulgata Inon obl;)g;)t leks nay
say prom;)lgeyt;)/. A law is not obligatory unless it be 
promulgated. 
Non obstante Inon ;)bstrentiy/. Lat. Notwithstanding. 
Words anciently used in public and private instru
ments, intended to preclude, in advance, any interpreta
tion contrary to certain declared objects or purposes. 
A clause frequent in old English statutes and letters 
patent (so termed from its initial words), importing a 
license from the crown to do a thing which otherwise a 
person would be restrained by act of parliament from 
doing. A power in the crown to dispense with the laws 
in any particular case. This was abolished by the bill of 
rights at the Revolution. 
Non obstante veredicto Inon ;)bstrentiy vehr;)diktow/. 
Notwithstanding the verdict. A judgment entered by 
order of court for the plaintiff (or defendant) although 
there has been a verdict for the defendant (or plaintiff). 
Judgment non obstante veredicto in its broadest sense is 
a judgment rendered in favor of one party notwithstand
ing the finding of a verdict in favor of the other party. 
A motion for a directed verdict is a prerequisite to a 
subsequent grant of judgment notwithstanding the ver
dict. Fed.R. Civil P. 50. 
Judgment non obstante veredicto originally, at com
mon law, was a judgment entered for plaintiff "notwith
standing the verdict" for defendant; which could be 
done only, after verdict and before judgment, where it 
appeared that defendant's plea confessed the cause of

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NON OBSTANTE VEREDICTO 
action and set up matters in avoidance which, although 
verified by the verdict, were insufficient to constitute a 
defense or bar to the action. But either by statutory 
enactment or because of relaxation of the early common
law rule, the generally prevailing rule now is that either 
plaintiff or defendant may have a judgment non obstan
te veredicto in proper cases. 
Non-occupational. Not of or pertaining to an occupa
tion, trade, or work. Morgan v. Equitable Life Assur. 
Soc. of U. S., La.App., 22 So.2d 595, 597. 
Non officit conatus nisi sequatur effectus Inon M;}s;}t 
k;}neyt;}s miysay s;}kweyt;}r ;}fekt;}s/. An attempt does 
not harm unless a consequence follow. 
Non omittas Inon ;}mit;}s/. A clause usually inserted in 
writs of execution, in England, directing the sheriff "not 
to omit" to execute the writ by reason of any liberty, 
because there are many liberties or districts in which 
the sheriff has no power to execute process unless he has 
special authority. 
Non omne damnum inducit injuriam Inon omniy 
dremn;}m ;}nd(y)uws;}t ;}njuriy;}m/. It is not every loss 
that produces an injury. 
Non omne quod licet honestum est Inon omniy kwod 
lis;}t (h);}nest;}m est/. It is not everything which is 
permitted that is honorable. 
Non omnium qure a majoribus nostris constituta sunt 
ratio reddi potest Inon omniy;}m kwiy ey m;}jor;}b;}s 
nostr;) konst;}t(y)uwt;} s�nt rresh(iy)ow reday pow
t;}st/. There cannot be given a reason for all the things 
which have been established by our ancestors. 
Nonpayment. The neglect, failure, or refusal of pay
ment of a debt or evidence of debt when due. 
Non-performance. Neglect, failure, or refusal to do or 
perform an act stipulated or contracted to be done. 
Failure to keep the terms of a contract or covenant, in 
respect to acts or doings agreed upon. The failure or 
neglect to render performance called for in a contract, 
rendering the non-performer liable in damages or sub
ject to a decree or judgment of specific performance. 
Non pertinet ad judicem secularem cognoscere de iis 
qure sunt mere spiritualia annexa Inon p;)rt;}n;}t red 
juwd;}s;}m seky;}ler;}m k;}(g)nos;}riy diy ay;}s kwiy s�nt 
miriy spir;}t(y)uweyl(i)y;} ;}neks;}/. It belongs not to the 
secular judge to take cognizance of things which are 
merely spiritual. 
Non plevin Inon plev;}n/. In old English law, default in 
not replevying land in due time, when the same was 
taken by the king upon a default. The consequence 
thereof (loss of seisin) was abrogated by St. 9 Edw. III, c. 
2. 
Non ponendis in assisis et juratis Inon p;}nend;}s in 
;}sayz;}s et j;}reyt;}s/. A writ formerly granted for freeing 
and discharging persons from serving on assizes and 
juries. 
Non possessori incumbit necessitas probandi posses
siones ad se pertinere Inon pOwz;}soray ink;)Inb;}t 
1056 
n;}ses;}tres pr;}brenday p;}zeshiyowniyz red siy p;}rt;}niriy I. 
A person in possession is not bound to prove that the 
possessions belong to him. 
Non potest adduci exceptio ejus rei cujus petitur 
dissolutio Inon powt;}st ;}d(y)uwsay ;}ksepsh(iy)ow iyj;}s 
riyay kyuwj;}s pet;}t;}r dis;}l(y)uwsh(iy)ow/. An exception 
of the same thing whose avoidance is sought cannot be 
made. 
Non potest probari quod probatum non relevat Inon 
powt;}st pr;}beray kwod pr;}beyt;}m non rel;}v;}t/. That 
cannot be proved which, if proved, is immaterial. 
Non potest quis sine brevi agere Inon powt;}st kwis 
sayniy briyvay rej;}riy/. No one can sue without a writ. 
A fundamental rule of old practice. 
Non potest rex gratiam facere cum injuria et damno 
aliorum Inon powt;}st reks greysh(iy);}m feys;}riy k�m 
injuriy;} et dremnow eyliyor;}m/. The king cannot confer 
a favor on one subject which occasions injury and loss to 
others. 
Non potest rex subditum renitentem onerare imposi
tionibus Inon powt;}st reks s;)bd;}t;}m rEm;}tent;}m 
own;}reriy imp;}zishiyown;}b;}s/. The king cannot load a 
subject with imposition against his consent. 
Non potest videri desisse habere qui nunquam ha
buit Inon powt;}st v;}diray d;}sayziy h;}biriy kway 
n;)1Jkwrem hrebyuw;}t/. He cannot be considered as hav
ing ceased to have a thing who never had it. 
Non prrestat impedimentum quod de jure non sorti
tur effectum Inon priyst;}t ;}mped;}ment;}m kwod diy 
juriy non sort;}d;}r ;}fekt;}m/. A thing which has no 
effect in law is not an impediment. 
Non procedendo ad assissam rege inconsulto Inon 
prows;}dend;}m red ;}sayz;}m riyjiy ink;}ns;)ltow I. A writ 
to put a stop to the trial of a cause appertaining unto 
one who is in the king's service, etc., until the king's 
pleasure respecting the same be known. 
Non-profit association. A group organized for purposes 
other than generating profit, such as a charitable, scien
tific, or literary organization. See also Non-profit corpo
ration. 
Non-profit corporation. A corporation no part of the 
income of which is distributable to its members, di
rectors or officers. Corporation organized for other than 
profit-making purposes. Corporations may be organized 
under the Revised Model Non-Profit Corporation Act 
(1986) "for any lawful activity unless a more limited 
purpose is set forth in the articles of incorporation". Id. 
§ 3.01( A). 
For purposes of federal income taxation, an organiza
tion may be exempt as an "exempt organization" if it is 
organized and operated exclusively for one or more of 
the following purposes: (a) religious, (b) charitable, (c) 
scientific, (d) testing for public safety, (e) literary, (f) 
educational, (g) prevention of cruelty to children or 
animals, or (h) to foster national or international sports. 
See I.R.C. § 501(c) for a list of exempt organizations.

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1057 
Non pros Inon pros/. Abbreviation of non prosequitur 
(q.v.). 
Non prosequitur Inon pr�sekw�t�r/. Lat. He does not 
follow up, or pursue. If, in the proceedings in an action 
at law, the plaintiff neglects to take any of those steps 
which he ought to take within the time prescribed by 
the practice of the court for that purpose, the defendant 
may enter judgment of non pros. against him, whereby it 
is adjudged that the plaintiff does not follow up (non 
prosequitur) his suit as he ought to do, and therefore the 
defendant ought to have judgment against him. Under 
current rules practice, such failure would result in a 
dismissal of the action or in a default judgment for 
defendant. Fed.R. Civil P. 41, 55. 
Non quieta movere Inon kwayiyt� m�viriy/. Lat. Not 
to disturb what is settled. A rule expressing the same 
principle as that of stare decisis (q.v.). 
Non quod dictum est, sed quod factum est inspicitur 
Inon kwod dikt�m est sed kwod frekt�m est inspis�t�r/. 
Not what is said, but what is done, is regarded. 
Nonrecourse. Status of person who holds an instru
ment which gives him no legal right against prior en
dorsers or the drawer to compel payment if the instru
ment is dishonored. See also Recourse; Without re
course; With recourse. 
Nonrecourse debt. Debt secured by the property that it 
is used to purchase. The purchaser of the property is 
not personally liable for the debt upon default. Rather, 
the creditor's recourse is to repossess the related proper
ty. Nonrecourse debt generally does not increase the 
purchaser's at-risk amount. 
Nonrecourse loan. Type of security loan which bars 
the lender from action against other assets of the bor
rower if the security value of the specified collateral for 
the loan falls below the amount required to repay the 
loan. It is used by the U.S. in loans to farmers on 
surplus crops. 
Non refert an quis assensum suum prrefert verbis, 
aut rebus ipsis et factis Inon rer�rt ren kwis �sens�m 
s(y)uw�m priyf�rt v;}rb�s ot riyb�s ips�s et frekt�s/. It 
matters not whether a man gives his assent by his words 
or by his acts and deeds. 
Non refert quid ex requipollentibus fiat Inon rer�rt 
kwid eks ekw�p�lent�b�s fay�t/. It matters not which of 
[two] equivalents happen. 
Non refert quid notum sit judici, si notum non sit in 
forma judicii Inon rer�rt kwid nowt�m sit juwd�say, 
say nowt�m non sid in form� juwd�say I. It matters not 
what is known to a judge, if it be not known in judicial 
form. 
Non refert verbis an factis fit revocatio Inon rer�rt 
v;}rb�s ren frekt�s fit rev�keysh(iy)ow/. It matters not 
whether a revocation is made by words or deeds. 
Non-residence. Residence beyond the limits of the par
ticular jurisdiction. 
In ecclesiastical law, the absence of spiritual persons 
from their benefices. 
NON SEQUITUR 
Non-resident. One who does not reside within jurisdic
tion in question; not an inhabitant of the state of the 
forum. Special rules govern service of process on non
residents; e.g. Fed.R. Civil P. 4(e). See Long arm stat
utes. 
For the distinction between "residence" and "domi
cile," see Domicile. 
Non-resident alien. One who is neither a resident nor a 
citizen of the United States. Citizenship is determined 
under the federal immigration and naturalization laws 
(U.S.Code Title 8.) 
Non-resident decedent. Decedent domiciled in another 
jurisdiction at the time of his death. Uniform Probate 
Code, § 1-201(26). 
Non-resident motorist statutes. State laws governing the 
liability and obligations of non-residents who use the 
state's highways. 
Non residentio pro clerico regis Inon rez�densh(iy)ow 
prow klehr�kow riyj�s/. A writ, addressed to a bishop, 
charging him not to molest a clerk employed in the 
royal service, by reason of his nonresidence; in which 
case he is to be discharged. 
Non respondebit minor nisi in causa dotis, et hoc pro 
favore doti Inon r�spondiyb�t mayn�r naysay in koz� 
dowt�s et hok prow f�voriy dowtay I. A minor shall not 
answer unless in a case of dower, and this in favor of 
dower. 
Non sanre mentis Inon seyniy ment�s/. Lat. Of un
sound mind. 
Non-sane. As "sane," when applied to the mind, means 
whole, sound, in a healthful state, "non-sane" means not 
whole, not sound, not in a healthful state; that is, 
broken, impaired, shattered, infirm, weak, diseased, un
able, either from nature or accident, to perform the 
rational functions common to man upon the objects 
presented to it. See also Insanity. 
Non sequitur Inon sekw�t�r/. Lat. It does not follow. 
E.g., the concepts of foster care and custody in a natural 
parent are mutually exclusive. The concept of foster 
care placement of a child with a natural parent is non 
sequitur. Matter of Lucinda G., 122 Misc.2d 416, 471 
N.Y.S.2d 736, 739. 
Non solent qure abundant vitiare scripturas Inon 
sowl�nt kwiy �b;}ndrent vishiyeriy skript(y)ur�s/. Super
fluities [things which abound] do not usually vitiate 
writings. 
Non solum quid licet, sed quid est conveniens, est 
considerandum; quia nihil quod est inconveniens 
est licitum Inon sowl�m kwid lays�t sed kwid est 
k�nviyn(i)y�nz, est k�nsid�rrend�m, kway� nay(h)�l kwod 
est ink�nviyn(i)y�nz,est lis�t�m/. Not only what is law
ful, but what is proper or convenient, is to be considered; 
because nothing that is inconvenient is lawfuL 
Non solvendo pecuniam ad quam clericus mulctatur 
pro non-residentia Inon solvendow p�kyun(i)y�m red 
kwrem klehr�k�s m�lkteyt�r prow nonrez�den
sh(iy)�/. A writ prohibiting an ordinary to take a pecu-

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NON-STOCK CORPORATION 
niary mulct imposed on a clerk of the sovereign for 
nonresidence. 
Non-stock corporation. Species of corporation in which 
the members hold no shares of stock as in the case of 
mutual companies and religious and charitable corpora
tions. Ownership is through the membership charter or 
agreement rather than through the usual issuance of 
stock. 
Non submissit Inon s;}bmis;}t/. Lat. He did not submit. 
A plea to an action of debt, on a bond to perform an 
award, to the effect that the defendant did not submit to 
the arbitration. 
Non sui juris Inon s(y)uway jur;}s/. Lat. Not his own 
master. The opposite of sui juris (q.v.). Lacking legal 
capacity to act for oneself as in the case of a minor or 
mentally incompetent person. 
Nonsuit. A term broadly applied to a variety of termi
nations of an action which do not adjudicate issues on 
the merits. McColgan v. Jones, Hubbard & Donnell, 11 
Ca1.2d 243, 78 P.2d 1010, 101 1. Name of a judgment 
given against the plaintiff when he is unable to prove a 
case, or when he refuses or neglects to proceed to trial 
and leaves the issue undetermined. Type of judgment 
rendered against party in legal proceeding on his inabili
ty to maintain his cause in court, or when he is in 
default in prosecuting his suit or in complying with 
orders of court. Jaquith v. Revson, 159 Conn. 427, 270 
A.2d 559, 561. 
A plaintiff suffers a "non-suit" when a court order 
finally terminates the cause without prejudice. Gray v. 
Chrysler Corp., Mo.App., 715 S.W.2d 282, 285. 
Action in form of a judgment taken against a plaintiff 
who has failed to appear to prosecute his action or failed 
to prove his case. Under civil rules practice, the appli
cable term is "dismissal". Fed.R. Civil P. 41. 
See also Default-judgment; Directed verdict; Dismissal. 
Judgment of nonsuit (i.e. "dismissal") is of two kinds, 
-voluntary and involunt ary. When plaintiff abandons 
his case, and consents that judgment go against him for 
costs, it is voluntary. Fed.R. Civil P. 41(a). But when 
he, being called, neglects to appear, or when he has 
given no evidence on which a jury could find a verdict, 
or when his case is put out of court by some adverse 
ruling precluding a recovery, it is involunt ary. Rule 
41(b). 
A peremptory nonsuit is a compulsory or involuntary 
nonsuit, ordered by the court upon a total failure of the 
plaintiff to substantiate his claim by evidence. 
Non sum informatus Inon s;}m inf;}rmeyt;}s/. Lat. I 
am not informed; I have not been instructed. 
Non-summons, wager of law of. In common law plead
ing, the mode in which a tenant or defendant in a real 
action pleaded, when the summons which followed the 
original was not served within the proper time. 
Non sunt longa ubi nihil est quod demere possis Inon 
s;}nt IOIJg;} yuwbay nay(h);}l est kwod dem;}riy pos;}s/. 
1058 
There is no prolixity where there is nothing that can be 
omitted. 
Non-support. The failure or neglect unreasonably to 
support those to whom an obligation of support is due; 
e.g. duty of parents to support children; duty to support 
spouse. Such failure to support is a criminal offense in 
most states. See e.g. Model Penal Code § 230.5. 
Nonsupport of a child is a parent's failure, neglect or 
refusal without lawful excuse to provide for the support 
and maintenance of his or her child in necessitous 
circumstances. Nonsupport of a spouse is an individu
al's failure without just cause to provide for the support 
of his or her spouse in necessitous circumstances. 
See also Necessitous circumstances; Reciprocal En
forcement of Support Act; Support. 
Non temere credere est nervus sapientire Inon tem;}riy 
kred;}riy est n;}rv;}s srepiyenshiyiy/. Not to believe rash
ly is the nerve of wisdom. 
Non tenent insimul Inon ten;}nt ins;}m;}l/. Lat. In old 
pleading, a plea to an action in partition, by which the 
defendant denied that he and the plaintiff were joint 
tenants of the estate in question. 
Non tenuit Inon tenyuw;}t/. Lat. He did not hold. A 
plea in bar in replevin, by which the plaintiff alleges 
that he did not hold in manner and form as averred, 
being given in answer to an avowry for rent in arrear. 
Non-tenure. A common law plea in a real action, by 
which the defendant asserts, either as to the whole or as 
to some part of the land mentioned in the plaintiffs 
declaration, that he does not hold it. 
Non-term. The vacation between two terms of a court. 
Non-terminus Inon t;}rm;}n;}s/. The vacation between 
term and term, formerly called the time of days of the 
king's peace. 
Non-user. Neglect to use. Neglect to use a franchise; 
neglect to exercise an office. Neglect or omission to use 
an easement or other right. A right acquired by use 
may be lost by non-user. 
Non usurpavit Inon yuws;}rpeyv;}t/. Lat. He has not 
usurped. A form of traverse, in an action or proceeding 
against one alleged to have usurped an office or fran
chise, denying the usurpation charged. 
Non valebit felonis generatio, nec ad hrereditatem 
paternam vel maternam; si autem ante feloniam 
generationem fecerit, talis generatio succedit in 
hrereditate patris vel matris a quo non fuerit felonia 
perpetrata Inon v;}liyb;}t f;}lown;}s jen;}reysh(iy)ow nek 
red h;}red;}teyd;}m p;}t;}rn;}m vel m;}t;}rn;}m; say ot;}m 
rentiy f;}lowniy;}m jen;}reysh(iy)own;}m fes;}r;}t teyl;}s 
jen;}reysh(iy)ow s;}ksiyd;}t in h;}red;}teytiy pretr;}s vel 
meytr;}s ey kwow non fyuw;}r;}t f;}lowniy;} p�rp;}treyt;}/. 
The offspring of a felon cannot succeed either to a 
maternal or paternal inheritance; but, if he had off
spring before the felony, such offspring may succeed as 
to the inheritance of the father or mother by whom the 
felony was not committed.

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1059 
Non valentia agere Inon v�l{msh(iy)� rej�riy/. Inability 
to sue . 
Non valet confirmatio, nisi ille, qui confirmat, sit in 
possessione rei vel juris unde fieri debet confirma
tio; et eodem modo, nisi ille cui confirmatio fit sit in 
possessione Inon vrebt konf�rmeysh(iy)ow, miysay iliy, 
kway k�nf�rm�t, sit in p�zeshiyowniy riyay vel jur�s 
�ndiy fay�ray deb�t konf�rmeysh(iy)ow; et iyowd�m 
mowdow, naysay iliy k(yUw)ay konf�rmeysh(iy)ow fit sit 
in p�zeshiyowniy I. Confirmation is not valid unless he 
who confirms is either in possession of the thing itself or 
of the right of which confirmation is to be made, and, in 
like manner, unless he to whom confirmation is made is 
in possession. 
Non valet donatio nisi subsequatur traditio Inon 
vrel�t d:meysh(iy)ow naysay s;)bs�kweyt�r tr�dish(iy)ow/. 
A gift is not valid unless accompanied by possession. 
Non valet exceptio ejusdem rei cujus petitur dissolu
tio Inon vrel::lt �ksepsh(iy)ow iyj�sd�m riyay kyuwj�s 
pet�t�r dis�l(y)uwsh(iy)ow/. A plea of the same matter 
the dissolution of which is sought, is not valid. Called a 
"maxim of law and common sense." 
Non valet impedimentum quod de jure non sortitur 
effectum Inon vrel�t �mped�ment�m kwod diy juriy non 
sort�t�r ;)fekt;)m/. An impediment which does not de
rive its effect from law is of no force. 
Non verbis, sed ipsis rebus, leges imponimus Inon 
v�rb�s, sed ips;)s riyb�s, liyjiyz impown;)m;)s/. We im
pose laws, not upon words, but upon things themselves. 
Non videntur qui errant consentire Inon v;)dent;)r 
kway ehrrent kons:mtayriy I. They are not considered to 
consent who commit a mistake. 
Non videntur rem amittere quibus propria non fuit 
Inon v;)dent;)r rem reit;)riy kwib;)s prowpriy;) non 
f(y)uw�tI. They are not considered as losing a thing 
whose own it was not. 
Non videtur consensum retinuisse si quis ex 
prrescripto minantis aliquid immutavit Inon v;}diyt;}r 
k�nsens�m r;}tenyuwisiy say kwis eks pr;}skriptow 
m;}nrent;}s rel;}kwid imyuwteyv;}t/. He does not appear 
to have retained consent, who has changed anything 
through menaces. 
Non videtur perfecte cujusque id esse, quod ex casu 
auferri potest Inon v�diyt;}r p;}rfektiy kyuwj�skwiy id 
esiy, kwod eks keysyuw ofehray powt;}stl. That does 
not seem to be completely one's own which can be taken 
from him on occasion. 
Non videtur quisquam id capere quod ei necesse est 
alii restitutere Inon v�diyt;}r kwiskwrem id krep;}riy 
kwod iyay n;}sesiy est eyliyay rest;}tyuw;}riy/. No one is 
considered entitled to recover that which he must give 
up to another. 
Non videtur vim facere, qui jure suo utitur et ordina
ria actione experitur Inon v;}diyt;}r vim feys;}riy kway 
juriy s(y)uwow yuwt;}t;}r et ord;}neriy;} rekshiyowniy 
ekspir;}t;}r/. He is not deemed to use force who exercis
es his own right, and proceeds by ordinary action. 
NORMAN FRENCH 
Non vult Inon v�ltl. Lit. He does not wish (to contend). 
A plea similar to nolo contendere (q.v.) and carrying the 
implications of a plea of guilty. 
Non vult contendere Inon v�lt k�ntend;}riy/. Lat. He 
(the defendant in a criminal case) will not contest it. A 
plea legally equivalent to that of guilty, being a varia
tion of the form "nolo contendere " (q.v.), and sometimes 
abbreviated "non vult. " 
Non-waiver agreement. Such agreement reserves to 
insurer every right under policy not previously waived, 
and to the insured every right which had not been 
forfeited. lEtna Ins. Co. of Hartford, Conn., v. Powers, 
190 Okl. 11 6, 121 P.2d 599, 602. 
Nook of land. In English law, twelve acres and a half. 
No par. Said of stock without a par value. 
No protest. Term used to describe the waiver of any 
right of protest when an instrument is not paid. Protest 
of dishonor is necessary, unless excused, to charge a 
drawer and endorser on any draft payable outside the 
United States. U.C.C. §§ 3-501(3), 509, 511. 
No recourse. No access to; no return; no coming back 
upon; no assumption of any liability whatsoever; no 
looking to the party using the term for any reimburse
ment in case of loss or damage or failure of considera
tion in that which was the cause, the motive, or the 
object, of the undertaking or contract. 
Normal. According to, constituting, or not deviating 
from an established norm, rule, or principle; conformed 
to a type, standard or regular form; performing the 
proper functions; regular; average; natural. Railroad 
Commission v. Konowa Operating Co., Tex.Civ.App., 174 
S.W.2d 605, 609. 
Normal law. A term employed by modern writers on 
jurisprudence to denote the law as it affects persons who 
are in a normal condition; i.e., sui juris and sound in 
mind. 
Normally. As a rule; regularly; according to rule, 
general custom, etc. 
Normal mind. One which in strength and capacity 
ranks reasonably well with the average of the great 
body of men and women who make up organized human 
society in general and are by common consent recog
nized as sane and competent to perform the ordinary 
duties and assume the ordinary responsibilities of life. 
Normal school. See School. 
Norman French. The tongue in which several formal 
proceedings of state in England are still carried on. The 
language, having remained the same since the date of 
the Conquest, at which it was introduced into England, 
is very different from the French of this day, retaining 
all the peculiarities which at that time distinguished 
every province from the rest. A peculiar mode of pro
nunciation (considered authentic) is handed down and 
preserved by the officials who have, on particular occa
sions, to speak the tongue. Norman French was the

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NORMAN FRENCH 
language of English legal procedure till the 36 Edw. III 
(A.D. 1362). 
Norris-La Guardia Act. Federal statute restricting the 
use of injunctions by federal courts in labor disputes. 
Norroy. In English law, the title of the third of the 
three kings-at-arms, or provincial heralds. 
North. Means due north; opposite direction of south. 
Same with word norther ly. 
Northwest territory. A name formerly applied to the 
territory northwest of the Ohio river. 
Noscitur a sociis Inos�t�r ey sowsiy�s/. It is known 
from its associates. The meaning of a word is or may be 
known from the accompanying words. Dnder the doc
trine of "noscitur a sociis", the meaning of questionable 
or doubtful words or phrases in a statute may be ascer
tained by reference to the meaning of other words or 
phrases associated with it. Wong Kam Wo v. Dulles, 
C.A.H awaii, 236 F.2d 622, 626. 
Noscitur ex socio, qui non cognoscitur ex se Inos�t�r 
eks sowsh(iy)ow kwliy non k�gnos�t�r eks siy/. He who 
cannot be known from himself may be known from his 
associate. 
Nosocomi Inos�kowmay/. In the civil law, persons who 
have the management and care of hospitals for paupers. 
No-strike clause. Provision commonly found in public 
service labor-management agreements to the effect that 
the employees will not strike for any reason; with labor 
disputes to be resolved by binding arbitration. 
Nota I nowt-;, I . Lat. In the civil law, a mark or brand 
put upon a person by the law. 
Notre Inowtiy/. In civil and old European law, short
hand characters or marks of contraction, in which the 
emperors' secretaries took down what they dictated. 
Notarial I nowteriy-;,lI. Taken by a notary; performed 
by a notary in his official capacity; belonging to a 
notary and evidencing his official character, as, a notari
al seal. 
Notarial acts. Official acts of notary public (q.v.). 
Notarial will. A will executed by the testator in the 
presence of a Notary Public and two witnesses. 
Notarius Inowteriy-;,s/. Lat. In old English law, a 
scribe or scrivener who made short draughts of writings 
and other instruments; a notary. 
In Roman law, a draughtsman; an amanuensis; a 
shorthand writer; one who took notes of the proceedings 
in the senate or a court, or of what was dictated to him 
by another; one who prepared draughts of wills, convey
ances, etc. 
Notary public. A public officer whose function it is to 
administer oaths; to attest and certify, by his hand and 
official seal, certain classes of documents, in order to 
give them credit and authenticity in foreign jurisdic
tions; to take acknowledgments of deeds and other 
conveyances, and certify the same; and to perform cer
tain official acts, chiefly in commercial matters, such as 
1060 
the protesting of notes and bills, the noting of foreign 
drafts, and marine protests in cases of loss or damage. 
One who is authorized by the state or federal govern
ment to administer oaths, and to attest to the authentic
ity of signatures. 
Notation credit. A credit which specifies that any per
son purchasing or paying drafts drawn or demands for 
payment made under it must note the amount of the 
draft or demand on the letter or advise of credit. D.C.C. 
§ 5-108(1). 
Note, v. To make a brief written statement; to enter a 
memorandum, as to note an exception. 
Note, n. An instrument containing an express and abso
lute promise of signer (i.e. maker) to pay to a specified 
person or order, or bearer, a definite sum of money at a 
specified time. An instrument that is a promise to pay 
other than a certificate of deposit. D.C.C. § 3-104(2)(d). 
Two party instrument made by the maker and payable 
to payee which is negotiable if signed by the maker and 
contains an unconditional promise to pay sum certain in 
money, on demand or at a definite time, to order or 
bearer. D.C.C. § 3-104(1). A note not meeting these 
requirements may be assignable but not negotiable. 
An abstract; a memorandum; an informal statement 
in writing. 
See also Balloon note; Coal note; Judgment note; 
Promissory note; Sold note; Treasury note. 
Circular note. See Letter of credit. 
Collateral note. Two party instrument containing prom
ise to pay and secured by pledge of property such as 
securities, real estate, etc. 
Demand note. Note payable on demand as contrasted 
with a time note which is payable at a definite time in 
the future. 
Installment note. One of a series of notes payable at 
regular intervals or a single note calling for payment in 
installments at fixed periods of time. 
Joint and several note. A note signed by persons as 
makers who agree to be bound both jointly and several
ly; i.e. they may be joined in a suit or they may be sued 
separately. 
Joint note. Note evidencing an indebtedness in which 
two or more persons agree to be liable jointly and for 
payment of which all such persons must be joined in an 
action to recover. 
Mortgage note. A note evidencing a loan for which real 
estate has been offered as security. 
Negotiable note. To qualify as negotiable, the note must 
be signed by the maker, contain an unconditional prom
ise to pay a sum certain in money and be payable on 
demand or at a definite time to order or bearer. D.C.C. 
§ 3-104(1). 
Secured note. A note for which security in the form of 
either real or personal property has been pledged or 
mortgaged. See also Collateral note, above.

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1061 
Time note. Note payable at a definite future time as 
contrasted with a demand note. 
Unsecured note. Note evidencing an indebtedness for 
which no security has been pledged or mortgaged. 
Note of a fine. In old English conveyancing, one of the 
parts of a fine of lands, being an abstract of the writ of 
covenant, and the concord; naming the parties, the 
parcels of land, and the agreement. 
Note of allowance. In English practice, a note deliv
ered by a master to a party to a cause, who alleged that 
there was error in law in the record and proceedings, 
allowing him to bring error. 
Note of hand. A popular name (now obsolete) for a 
promissory note. 
Note of protest. A memorandum of the fact of protest, 
indorsed by the notary upon the bill, at the time, to be 
afterwards written out at length. 
Note or memorandum. Under statute of frauds, an 
informal minute or memorandum made on the spot. It 
must contain all the essential elements and substantial 
parts of the contract. Stanley v. A. Levy & J. Zentner 
Co., 60 Nev. 432, 11 2 P.2d 1047, 1053. 
Notes payable. In bookkeeping, an account reflecting 
the aggregate indebtedness evidenced by promissory 
notes; the notes themselves are liabilities. 
Notes receivable. In bookkeeping, an account contain
ing evidence of indebtedness for which promissory notes 
have been given to the account of the party making the 
entry; the notes themselves are assets. 
Not exceeding. Usually a term of limitation only, de
noting uncertainty of amount. Stuyvesant Ins. Co. v. 
Jacksonville Oil Mill, C.C.A.Tenn., 10 F.2d 54, 56. 
Not found. These words, indorsed on a bill of indict
ment by a grand jury, have the same effect as the 
indorsement "Not a true bill", "No bill," or "Ignora
mus. " See also Non est inventus. 
Not-for-profit corporation. See Non-profit corporation. 
Not guilty. Plea entered by the accused to criminal 
charge. If the defendant refuses to plead, the court will 
enter a plea of not guilty. See e.g. Fed.R.Crim.P. 11. 
Also, the form of the verdict in criminal cases where the 
jury acquits the defendant; i.e. finds him "not guilty". 
For defense of not guilty by reason of insanity, see 
Insanity. 
In common law pleadings, a plea of the general issue 
in the actions of trespass and case. 
Not guilty by statute. In old English practice, a plea of 
the general issue by a defendant in a civil action, when 
he intends to give special matter in evidence by virtue of 
some act or acts of parliament, in which case he must 
add the reference to such act or acts, and state whether 
such acts are public or otherwise. But, if a defendant so 
plead, he will not be allowed to plead any other defense, 
without the leave of the court or a judge. 
NOTICE 
Nothus /now(j';js/. Lat. In Roman law, a natural child 
or a person of spurious birth. 
Notice. Information; the result of observation, whether 
by the senses or the mind; knowledge of the existence of 
a fact or state of affairs; the means of knowledge. 
Intelligence by whatever means communicated. Koehn 
v. Central Nat. Ins. Co. of Omaha, Neb., 187 Kan. 192, 
354 P.2d 352, 358. Any fact which would put an ordi
narily prudent person on inquiry. State ex reI. Gleason 
v. Rickhoff, Mo.App., 541 S.W.2d 47, 50. That which 
imparts information to one to be notified. Greene v. 
Ives, 25 Conn.Sup. 356, 204 A.2d 412, 415. 
Notice in its legal sense is information concerning a 
fact, actually communicated to a person by an autho
rized person, or actually derived by him from a proper 
source, and is regarded in law as "actual" when the 
person sought to be affected by it knows thereby of the 
existence of the particular fact in question. United 
States v. Tuteur, C.A.Ill., 215 F.2d 415. It is knowledge 
of facts which would naturally lead an honest and 
prudent person to make inquiry, and does not necessar
ily mean knowledge of all the facts. Wayne Bldg. & 
Loan Co. of Wooster v. Yarborough, 11 Ohio St.2d 195, 
228 N.E.2d 841, 847, 40 O.O.2d 182. In another sense, 
"notice" means information, an advice, or written warn
ing, in more or less formal shape, intended to apprise a 
person of some proceeding in which his interests are 
involved, or informing him of some fact which it is his 
right to know and the duty of the notifying party to 
communicate. 
Fed.R. Civil P. 5(a) requires that every written notice 
be served upon each of the parties. 
A person has notice of a fact if he knows the fact, has 
reason to know it, should know it, or has been given 
notification of it. Restatement, Second, Agency § 9. 
Notice may be either (1) statutory, i.e., made so by 
legislative enactment; (2) actual, which brings the 
knowledge of a fact directly home to the party; or (3) 
constructive. Constructive notice may be subdivided 
into: (a) Where there exists actual notice of matter, to 
which equity has added constructive notice of facts, 
which an inquiry after such matter would have elicited; 
and (b) where there has been a designed abstinence from 
inquiry for the very purpose of escaping notice. 
See also Adequate notice; Charged; Due notice; Imme
diate notice; Imputed notice; Judicial notice; Knowledge; 
Legal notice; Public ation; Reasonable notice. 
Actual notice. Actual notice has been defined as notice 
expressly and actually given, and brought home to the 
party directly. The term "actual notice," however, is 
generally given a wider meaning as embracing two 
classes, express and implied; the former includes all 
knowledge of a degree above that which depends upon 
collateral inference, or which imposes upon the party 
the further duty of inquiry; the latter imputes knowl
edge to the party because he is shown to be conscious of 
having the means of knowledge. In this sense actual 
notice is such notice as is positively proved to have been 
given to a party directly and personally, or such as he is

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NOTICE 
presumed to have received personally because the evi
dence within his knowledge was sufficient to put him 
upon inquiry. 
Averment of notice. The statement in a pleading that 
notice has been given. 
Commercial law. A person has "notice" of a fact when: 
(a) he has actual knowledge of it; or (b) he has received 
a notice or notification of it; or (c) from all the facts and 
circumstances known to him at the time in question he 
has reason to know that it exists. A person "knows" or 
has "knowledge" of a fact when he has actual knowledge 
of it. "Discover" or "learn" or a word or phrase of 
similar import refers to knowledge rather than to rea
son to know. The time and circumstances under which 
a notice or notification may cease to be effective are not 
determined by the V.C.C. V.C.C. § 1-201(25). 
A pe,son "notifies" or "gives" a notice or notification 
to another by taking such steps as may be reasonably 
required to inform the other in ordinary course whether 
or not such other actually comes to know of it. A 
person "receives" a notice or notification when: (a) it 
comes to his attention; or (b) it is duly delivered at the 
place of business through which the contract was made 
or at any other place held out by him as the place for 
receipt of such communications. V.C.C. § 1-201(26). 
V nder the V niform Commercial Code, the law on 
"notice," actual or inferable, is precisely the same 
whether the instrument is issued to a holder or negotiat
ed to a holder. Eldon's Super Fresh Stores, Inc. v. 
Merrill Lynch, Pierce, Fenner & Smith, Inc., 296 Minn. 
130, 207 N.W.2d 282, 287. 
Constructive notice. Constructive notice is information 
or knowledge of a fact imputed by law to a person 
(although he may not actually have it), because he could 
have discovered the fact by proper diligence, and his 
situation was such as to cast upon him the duty of 
inquiring into it. Every person who has actual notice of 
circumstances sufficient to put a prudent man upon 
inquiry as to a particular fact, has constructive notice of 
the fact itself in all cases in which, by prosecuting such 
inquiry, he might have learned such fact. 
Constructive "notice" includes implied actual notice 
and inquiry notice. F. P. Baugh, Inc. v. Little Lake 
Lumber Co., C.A.Cal., 297 F.2d 692, 696. 
Express notice. Express notice embraces not only 
knowledge, but also that which is communicated by 
direct information, either written or oral, from those 
who are cognizant of the fact communicated. See also 
Actual notice, above. 
Implied notice. Implied notice is one of the varieties of 
actual notice (not constructive) and is distinguished from 
"express" actual notice. It is notice inferred or imputed 
to a party by reason of his knowledge of facts or circum
stances collateral to the main fact, of such a character 
as to put him upon inquiry, and which, if the inquiry 
were followed up with due diligence, would lead him 
definitely to the knowledge of the main fact. "Implied 
notice" is a presumption of fact, relating to what one 
can learn by reasonable inquiry, and arises from actual 
1062 
notice of circumstances, and not from constructive no
tice. Or as otherwise defined, implied notice may be 
said to exist where the fact in question lies open to the 
knowledge of the party, so that the exercise of reason
able observation and watchfulness would not fall to 
apprise him of it, although no one has told him of it in 
so many words. 
Personal notice. Communication of notice orally or in 
writing (according to the circumstances) directly to the 
person affected or to be charged, as distinguished from 
constructive or implied notice, and also from notice 
imputed to him because given to his agent or representa
tive. See Actual notice; Express notice, above. 
Public notice. Notice given to the public generally, or to 
the entire community, or to all whom it may concern. 
Such must commonly be published in a newspaper of 
general circulation. See also Public ation. 
Reasonable notice. Such notice or information of a fact 
as may fairly and properly be expected or required in 
the particular circumstances. 
Notice of action. See Lis pendens. 
Notice of appeal. A document giving notice of an 
intention to appeal filed with the appellate court and 
served on the opposing party. Fed.R.App.P. 3. 
Notice of appearance. See Appearance. 
Notice of deficiency. See Ni nety (90) day letter. 
Notice of dishonor. Notice of dishonor may be given to 
any person who may be liable on the instrument by or 
on behalf of the holder or any party who has himself 
received notice, or any other party who can be com
pelled to pay the instrument. In addition an agent or 
bank in whose hands the instrument is dishonored may 
give notice to his principal or customer or to another 
agent or bank from which the instrument was received. 
V.C.C. § 3-50 8(1). See also Dishonor. 
Notice of issue. See Notice of trial. 
Notice of lis pendens /n6wt�s �v lis p{md�nz/. See Lis 
pendens. 
Notice of motion. A notice in writing, entitled in a 
cause, stating that on a certain day designated, a motion 
will be made to the court for the purpose or object 
stated. Such notice is required to be served upon all 
parties. Fed.R. Civil P. 5(a). 
Notice of orders or judgments. Immediately upon the 
entry of an order or judgment the clerk shall serve 
notice of the entry by mail upon each party who is not 
in default for failure to appear, and shall make a note in 
the docket of the mailing. Fed.R. Civil P. 77(d). See 
also Fed.R.Crim.P. 49(c). 
Notice of pendency. See Lis pendens. 
Notice of protest. See Protest. 
Notice of tax deficiency. See Ninety (90) day letter. 
Notice of trial. A notice given by one of the parties in 
an action to the other, after an issue has been reached, 
that he intends to bring the cause forward for trial at 
the next term of the court.

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1063 
Notice race statutes. In s ome jurisdictions, in record
ing of documents of title to real estate, the first grantee 
or mortgagee to record in the chain of title without 
actual notice of a prior unrecorded deed or mortgage 
prevails. Also known as Race-Notice Statute. See also 
Notice recording statutes; Recording acts. 
Notice recording statutes. An unrecorded conveyance 
or other instrument is invalid as against a subsequent 
bona fide purchaser (creditor or mortgagee if the statute 
so provides) for value and without notice. Under this 
type of statute the subsequent bona fide purchaser pre
vails over the prior interest whether the subsequent 
purchaser records or not. Insofar as the subsequent 
purchaser is concerned, there is no premium on his race 
to the recorder's office. His priority is determined upon 
his status at the time he acquires his deed or mortgage. 
See also Recording acts. 
Notice to appear. Shorthand expression for the form of 
summons or order of notice in which the defendant is 
ordered to appear and show cause why judgment should 
not be entered against him. Fed.R. Civil P. 4(b). See 
also Show cause order; Summons. 
Notice to creditors. Formal notification in bankruptcy 
proceeding to creditors of the bankrupt that a meeting 
will be held, or that proof of claims must be filed on or 
before a certain date, or that an order for relief has been 
granted. See Bankruptcy Code, § 342. 
Notice to plead. A notice which, in the practice of the 
federal courts, and most state courts, is prerequisite to 
the taking judgment by default. It proceeds from the 
plaintiff, and warns the defendant that he must plead to 
the declaration or complaint within a prescribed time. 
Such notice is required in the summons. Fed.R. Civil P. 
4(b). 
Notice to produce. Document by which party to civil or 
criminal action requests opposing party to submit speci
fied papers, evidence, etc. needed for preparation of case 
and use at trial. See e.g. Fed.R.Civil P. 30(b); Fed.R. 
Crim.P. 15(a), 26.2. 18 U.S.C.A. § 3500. See Discovery; 
Inspection of documents. 
Notice to quit. A written notice given by a landlord to 
his tenant, stating that t.he former desires to repossess 
himself of the demised premises, and that the latter is 
required to quit and remove from the same at a time 
designated, either at the expiration of the term, if the 
tenant is in under a lease, or immediately, if the tenan
cy is at will or by sufferance. The term is also some
times applied to a written notice given by the tenant to 
the landlord, to the effect that he intends to quit the 
demised premises and deliver possession of the same on 
a day named. 
Notification. See Notice. 
Notify. To give notice to; to inform by words or writing, 
in person or by message, or by any signs which are 
understood; to make known. To "notify" one of a fact is 
to make it known to him; to inform him by notice. Fast 
v. Scruggs, 164 Okl. 196, 23 P.2d 383. See Notice. 
Notio Inowsh(iy)ow/. Lat. In the civil law, the power of 
hearing and trying a matter of fact; the power or 
N.O.V. 
authority of a judex; the power of hearing causes and of 
pronouncing sentence, without any degree of jurisdic
tion. 
Notitia Inowtish(iy);)/. Lat. Knowledge; information; 
intelligence; notice. 
Notitia dicitur a noscendo; et notitia non debet clau
dicare Inowtish(iy);) dis;)t;)r ay nosendow at now
tish(iyp non deb;)t klod;)keriy/. Notice is named from a 
knowledge being had; and notice ought not to halt (i.e., 
be imperfect). 
Not later than. "Within" or "not beyond" time speci
fied. 
Not less than. The words "not less than" signify in the 
smallest or lowest degree, at the lowest estimate; at 
least. 
Notoriety Inowt;)ray;)diy/. The state of being notorious 
or universally well known. 
Notorious Inowtoriy;)s/. Generally known and talked 
of; well or widely known; forming a part of common 
knowledge, or universally recognized. Mathis v. State, 
60 Okl.Cr. 58, 61 P.2d 261, 267. Open; generally or 
commonly known and spoken of. 
Notorious cohabitation. The statutory offense in some 
jurisdictions committed by two persons who live togeth
er openly while not being married to each other. Such 
laws are seldom enforced. 
Notorious insolvency. A condition of insolvency which 
is generally known throughout the community or known 
to the general class of persons with whom the insolvent 
has business relations. 
Notorious possession. As a requisite of adverse posses
sion, such possession that is so conspicuous that it is 
generally known and talked of by the public or the 
people in the neighborhood. Possession or character of 
holding in its nature having such elements of notoriety 
that the owner may be presumed to have notice of it and 
of its extent. See also Adverse possession. 
Not possessed. A special traverse used in an action of 
trover, alleging that defendant was not possessed, at the 
time of action brought, of the chattels alleged to have 
been converted by him. 
Not satisfied. A return sometimes made by sheriffs or 
constables to a writ of execution; but it is not a techni
cal formula, and has been criticized by the courts as 
ambiguous and insufficient. See Nu lla bona. 
Not to be performed within one year. The clause "not 
to be performed within one year" includes any agree
ment which by a reasonable interpretation in view of all 
the circumstances does not admit of its performance, 
according to its language and intention, within one year 
from the time of its making. 
N.O.V. See Non obstante veredicto. 
Nova constitutio futuris formam imponere debet non 
prreteritis Inowv;) konst;)t(y)uwsh(iy)ow fyuwtyur;)s 
form;)m impown;)riy deb;)t non pr;)ter;)t;)s/. A new state 
of the law ought to affect the future, not the past.

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NOVA CUSTUMA 
Nova custuma Inowv� k�st(y)�m�/. The name of an 
imposition or duty. See Antiqua custuma. 
Novre narrationes Inowviy n�reyshiyowniyz/. New 
counts. The collection called "Novre Narrationes" con
tains pleadings in actions during the reign of Edward 
III. It consists principally of declarations, as the title 
imports; but there are sometimes pleas and subsequent 
pleadings. The Articuli ad Novas Narrationes is usually 
subjoined to this little book, and is a small treatise on 
the method of pleading. It first treats of actions and 
courts, and then goes through each particular writ, and 
the declaration upon it, accompanied with directions, 
and illustrated by precedents. 
Nova statuta Inowv� st�t(y)uwt�/. New statutes. An 
appellation sometimes given to the statutes which have 
been passed since the beginning of the reign of Edward 
III. 
Novation. A type of substituted contract that has the 
effect of adding a party, either as obligor or obligee, who 
was not a party to the original duty. Substitution of a 
new contract, debt, or obligation for an existing one, 
between the same or different parties. The substitution 
by mutual agreement of one debtor for another or of one 
creditor for another, whereby the old debt is extin
guished. A novation substitutes a new party and dis
charges one of the original parties to a contract by 
agreement of all parties. See Restatement of Contracts, 
Second, § 280. 
The requisites of a novation are a previous valid 
obligation, an agreement of all the parties to a new 
contract, the extinguishment of the old obligation, and 
the validity of the new one. Blyther v. Pentagon Feder
al Credit Union, D.C.Mun.App., 182 A.2d 892, 894. 
In the civil law, there are three kinds of novation: 
where the debtor and creditor remain the same, but a 
new debt takes the place of the old one; where the debt 
remains the same, but a new debtor is substituted; 
where the debt and debtor remain, but a new creditor is 
substituted. Wheeler v. Wardell, 173 Va. 168, 3 S.E.2d 
377, 380. 
Novatio non prresumitur Inowveysh(iy)ow non 
pr�z(y)uwm�t�r/. Novation is not presumed. 
Novel assignment. See New aSSignment. 
Novel disseisin. See Assize or assise (Assize of novel 
disseisin). 
Novellre (or novellre constitutiones) Inowveliy (konst�
t(y)uwshiyowniyz)/. New constitutions; generally trans
lated in English, "Novels." The Latin name of those 
constitutions which were issued by Justinian after the 
publication of his Code; most of them being originally 
written in Greek. After his death, a collection of 168 
Novels was made, 154 of which had been issued by 
Justinian, and the rest by his successors. These were 
afterwards included in the Corpus Juris Civilis (q.v.), 
and now constitute one of its four principal divisions. 
N ovellre leonis I nowveliy liyown�s/. The ordinances of 
the Emperor Leo, which were made from the year 887 
till the year 893, are so called. These Novels changed 
many rules of the Justinian law. This collection con-
1064 
tains 113 Novels, written originally in Greek, and after
wards, in 1560, translated into Latin by Agilreus. 
Novels Inov�lz/. The title given in English to the New 
Constitutions (Novellre Constitutiones) of Justinian and 
his successors, now forming a part of the Corpus Juris 
Civilis. See Novellre. 
Novelty. In order that there may be "novelty" so as to 
sustain a patent, the thing must not have been known to 
any one before; mere novelty of form being insufficient. 
Seaver v. Wm. Filene's Sons Co., D.C.Mass., 37 F.Supp. 
762, 765. An invention or discovery is new or possesses 
requisite element of "novelty" if it involves the presence 
of some element, or the new position of an old element 
in combination, different from anything found in any 
prior structure. King-Seeley Thermos Co. v. Refrigera
ted Dispensers, Inc., C.A.Okl., 354 F.2d 533, 537. Novel
ty, in respect to design terminology, is present when the 
average observer takes the new design for a different 
and not just a modified already existing design. Schna
dig Corp. v. Gaines Mfg. Co., Inc., C.A.Tenn., 494 F.2d 
383, 389. An objection to a patent or claim for a patent 
on the ground that the invention is not new or original 
is called an objection "for want of novelty." 
Noverca In�v�rk�/. Lat. In the civil law, a stepmother. 
Noverint universi per prresentes Inowv�r�nt yuwn�
v�rsay p;}r pr�zentiyz/. Know all men by these 
presents. Formal words used at the commencement of 
deeds of release in the Latin forms. 
Novigild Inowv�gild/. In Saxon law, a pecuniary satis
faction for an injury, amounting to nine times the value 
of the thing for which it was paid. 
Novi operis nunciatio Inowvay op�r�s n;}nshiyeysh(iy)
owl. Lat. Denunciation of, or protest against, a new 
work. This was a species of remedy in the civil law, 
available to a person who thought his rights or his 
property were threatened with injury by the act of his 
neighbor in erecting or demolishing any structure, 
which was called a "new work." In such case, he might 
go upon the ground, while the work was in progress, and 
publicly protest against or forbid its completion, in the 
presence of the workmen or of the owner or his repre
sentative. 
Noviter perventa, or noviter ad notitiam perventa 
Inowv�t�r (red nowtish(iy)�m) p�rvent�/. In ecclesiasti
cal procedure, facts "newly come" to the knowledge of a 
party to a cause. Leave to plead facts novi ter perventa 
is generally given, in a proper case, even after the 
pleadings are closed. 
N ovum judicium non dat novum jus, sed declarat 
antiquum; quia judicium est juris dictum et per 
judicium jus est noviter revelatum quod diu fuit 
velatum Inowv�m juwdish(iy)�m non dret nowv�m j�s, 
sed d�kler�t rentaykw�m; kway juwdish(iy)�m est jur�s 
dikt�m et p;}r juwdish(iy)�m j�s est nowv�t�r rev�leyt�m 
kwod dayuw f(y)uw�t v�leyt�m/. A new adjudication 
does not make a new law, but declares the old; because 
adjudication is the utterance of the law, and by adjudica-

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1065 
tion the law is newly revealed which was for a long time 
hidden. 
Novus homo Inowv�s howmow/. Lat. A new man. 
This term is applied to a man who has been pardoned of 
a crime, and so made, as it were, a "new man." 
Now. At this time, or at the present moment; or at a 
time contemporaneous with something done. At the 
present time. 
"Now" as used in a statute ordinarily refers to the 
date of its taking effect, but the word is sometimes used, 
not with reference to the moment of speaking but to a 
time contemporaneous with something done, and may 
mean at the time spoken of or referred to as well as at 
the time of speaking. 
Word "now" used in will normally refers to time of 
testator's death; but, in light of context, may apply to 
date of will. 
N.O.W. account. Negotiable Order of Withdrawal ac
count. Form of interest bearing checking account. 
Noxa Inoks�/. Lat. In the civil law, any damage or 
injury done to persons or property by an unlawful act 
committed by a man's slave or animal. An action for 
damages lay against the master or owner, who, however, 
might escape further responsibility by delivering up the 
offending agent to the party injured. "Noxa" was also 
used as the designation of the offense committed, and of 
its punishment, and sometimes of the slave or animal 
doing the damage. 
Noxalis actio Inokseyl;}s reksh(iy)ow/. Lat. In the civil 
law, an action which lay against the master of a slave, 
for some offense (as theft or robbery) committed or 
damage or injury done by the slave, which was called 
"noxa." Usually translated "noxal action." 
Noxia Inoks(i)y;}I . Lat. In the civil law, an offense 
committed or damage done by a slave. 
Noxious. Hurtful; offensive; offensive to the smell. 
The word "noxious" includes the complex idea both of 
insalubrity and offensiveness. That which causes or 
tends to cause injury, especially to health or morals. 
N.P. An abbreviation for "notary public." 
N.R. An abbreviation for "New Reports;" also for "not 
reported," and for "nonresident." 
N.S. An abbreviation for "New Series;" also for "New 
Style ." 
NSF Check. Banking term meaning that there are "not 
sufficient funds" to cover check drawn on account. A 
check that is dishonored on presentment for payment 
because the drawer does not have sufficient funds in his 
or her account to cover its payment. See also Overdraft. 
N.T.S.B. National Transportation Safety Board. 
Nubilis In(y)uwb;}l;}s/. Lat. In the civil law, marriagea
ble; one who is of a proper age to be married. 
Nuda pactio obligationem non parit In(y)uwd� 
preksh(iy)ow obbgeyshiyown;}m non prer;}t/. A naked 
NUISANCE 
agreement [i.e., without consideration] does not beget an 
obligation. 
Nuda patientia In(y)uwd;} preshiyensh(iy)�/. Lat. Mere 
sufferance. 
Nuda possessio In(y)uwd;} p;}zesh(iy)ow/. Lat. Bare or 
mere possession. 
Nuda ratio et nuda pactio non ligant aliquem debito
rem In(y)uwd� rresh(iy)ow et n(y)uwd;} preksh(iy)ow non 
lig;}nt rebkw;}m deb�tor�m/. Naked reason and naked 
promise do not bind any debtor. 
Nude. Naked. This word is applied metaphorically to a 
variety of subjects to indicate that they are lacking in 
some essential legal requisite. 
Nude contract. One made without any consideration; 
upon which no action will lie, in conformity with the 
maxim "ex nudo pacto non oritur actio." 2 Bl.Comm. 
445. 
Nude matter. A bare allegation of a thing done, unsup
ported by evidence. 
Nude pact. One without consideration; an executory 
contract without a consideration; a naked promise. 
Nudum pactum In(y)uwd;}m prekt;}m/. A voluntary 
promise, without any other consideration than mere 
goodwill, or natural affection. 
A naked pact; a bare agreement; a promise or under
taking made without any consideration for it. 
Roman law. Informal agreements not coming within 
any of the privileged classes. They could not be sued on. 
The term was sometimes used with a special and rather 
different meaning to express the rule that a contract 
without delivery will not pass property. 
Nudum pactum est ubi nulla subest causa prreter 
conventionem; sed ubi subest causa, fit obligatio, et 
parit actionem In(y)uwd;}m prekt;}m est yuwbay n;}l;} 
s;}best koz;} priyt;}r k;}nvenshiyown;}m, sed yuwbay S;}best 
koz;} fit obl;}geysh(iy)ow et prer;}t rekshiyown�m/. A 
naked contract is where there is no consideration except 
the agreement; but, where there is a consideration, it 
becomes an obligation and gives a right of action. 
Nudum pactum ex quo non oritur actio In(y)uwd;}m 
prekt;}m eks kwow non or;}t;}r reksh(iy)ow/. Nudum pac
tum is that upon which no action arises. 
Nugatory In(y)uwg;}t;}riy/. Futile; ineffectual; invalid; 
destitute of constraining force or vitality. A legislative 
act may be "nugatory" because unconstitutional. Avery 
& Co. v. Sorrell, 157 Ga. 476, 121 S.E. 828, 829. 
Nuisance. Nuisance is that activity which arises from 
unreasonable, unwarranted or unlawful use by a person 
of his own property, working obstruction or injury to 
right of another, or to the public, and producing such 
material annoyance, inconvenience and discomfort that 
law will presume resulting damage. State ex reI. Her
man v. Cardon, 23 Ariz.App. 78, 530 P.2d 111 5, 111 8. 
That which annoys and disturbs one in possession of his 
property, rendering its ordinary use or occupation physi
cally uncomfortable to him; e.g smoke, odors, noise, or

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NUISANCE 
vibration. Patton v. Westwood Country Club Co., 18 
Ohio App.2d 137, 247 N.E.2d 761, 763, 47 O.O.2d 247. 
The term is incapable of exhaustive definition which 
will fit all cases, as it is very comprehensive and in
cludes everything that endangers life or health, gives 
offense to senses, violates laws of decency, or obstructs 
reasonable and comfortable use of property. U.S. v. 
County Board of Arlington County, D.C.Va., 487 F.Supp. 
137, 143. An offensive, annoying, unpleasant, or obnox
ious thing or practice; a cause or source of annoyance, 
especially a continuing or repeated invasion or distur
bance of another's right, or anything that works a hurt, 
inconvenience or damage. Renken v. Harvey Alu
minum (Inc.), D.C.Or., 226 F.Supp. 169, 175. 
Nuisances are commonly classed as pub lic, private, 
and mixed. A public nuisance is one which affects an 
indefinite number of persons, or all the residents of a 
particular locality, or all people coming within the ex
tent of its range or operation, although the extent of the 
annoyance or damage inflicted upon individuals may be 
unequal. Maintaining a public nuisance is by act, or by 
failure to perform a legal duty, intentionally causing or 
permitting a condition to exist which injures or endan
gers the public health, safety or welfare. An invasion of 
a person's interest in the private use and enjoyment of 
land by any type of liability-forming conduct is termed a 
private nuisance. It is a tort against a private person, 
and actionable by him as such. As distinguished from 
public nuisance, a private nuisance includes any wrong
ful act which destroys or deteriorates the property of an 
individual or of a few persons or interferes with their 
lawful use or enjoyment thereof, or any act which un
lawfully hinders them in the enjoyment of a common or 
public right and causes them a special injury different 
from that sustained by the general public. Therefore, 
although the ground of distinction between public and 
private nuisances is still the injury to the community at 
large or, on the other hand, to a single individual, it is 
evident that the same thing or act may constitute a 
public nuisance and at the same time a private nui
sance. A mixed nuisance is of the kind last described; 
that is, it is one which is both public and private in its 
effects,-public because it injures many persons or all 
the community, and private in that it also produces 
special injuries to private rights. Kelley v. New York, 6 
Misc. 516, 27 N.Y.S. 164. 
See also Anticipatory nuisance; Attractive nuisance doc
trine; Common nuisance; Legalized nuisance; Offensive; 
Private nuisance; Public nuisance. 
Ab atement of a nuisance. The removal, stoppage, pros
tration, or destruction of that which causes a nuisance, 
whether by breaking or pulling it down, or otherwise 
removing, destroying, or effacing it. See also Abatable 
nuisance. 
Absolute nuisance. Nuisance grounded in conduct 
which is intentional, rather than negligent. Dingwell v. 
Town of Litchfield, 4 Conn.App. 621, 496 A.2d 213, 215. 
Compare Qualified nu isance, below. 
Actionable nuisance. See Actionable. 
1066 
Assize of nuisance. In old English practice, this was a 
judicial writ directed to the sheriff of the county in 
which a nuisance existed, in which it was stated that the 
party injured complained of some particular fact done 
ad nocumentum liberi tenementi sui (to the nuisance of 
his freehold), and commanding the sheriff to summon an 
assize (that is, a jury) to view the premises, and have 
them at the next commission of assizes, that justice 
might be done, etc. 3 Bl.Comm. 221. 
Common nuisance. One which affects the public in 
general, and not merely some particular person; a pub
lic nuisance. 
Continuing nuisance. An uninterrupted or periodically 
recurring nuisance; not necessarily a constant or un
ceasing injury, but a nuisance which occurs so often and 
is so necessarily an incident of the use of property 
complained of that it can fairly be said to be continuous. 
Maintaining a nu isance. To "maintain" a nuisance 
means something more than having knowledge of its 
existence; it means, in addition, preserving and continu
ing its existence either by some positive act or by acqui
escence. People v. Campbell, 45 Misc.2d 201, 256 N.Y. 
S.2d 467. 
Permanent nuisance. A nuisance of such a character 
that its continuance is necessarily an injury which will 
continue without change. One that cannot be readily 
abated at small expense. 
Qualif ied nu isance. As distinguished from an "absolute 
nuisance," may consist of anything lawfully done or 
permitted to be done, so as to create a potential and 
reasonable risk of damage, which in due course results 
in injury to another. Wayman v. Board of Ed. of Akron 
City School Dist., 6 Ohio App.2d 94, 216 N.E.2d 637, 638. 
Compare, Absolute nuisance, above. 
Temporary nu isance. A nuisance which can be correct
ed by the expenditure of labor or money. Pate v. City of 
Martin, Tenn., 614 S.W.2d 46, 48. 
Nuisance at law. See Nuisance per se. 
Nuisance in fact. Acts, occupations or structures which 
are not nuisances per se but may become nuisances by 
reason of the circumstances of the location and sur
roundings or manner in which it is performed or operat
ed. Robichaux v. Happunbauer, 258 La. 139, 245 So.2d 
385, 389. 
Nuisance per accidens /n(y)uws:ms p;)r reks;)dEms/. See 
Nuisance in fact. 
Nuisance per se /n(y)uws;)ns p�r siy/. An act, occupa
tion, or structure which is a nuisance at all times and 
under all circumstances, regardless of location or sur
roundings, Martin by Martin v. State, 129 Mich.App. 
100, 341 N.W.2d 239, 243; as, things prejudicial to 
public morals or dangerous to life or injurious to public 
rights; distinguished from things declared to be nuisanc
es by statute, and also from things which constitute 
nuisances only when considered with reference to their 
particular location or other individual circumstances. 
The difference between a "nuisance per se" and a "nui-

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1067 
sance per accidens" is that in the former, injury in some 
form is certain to be inflicted, while in the latter, the 
injury is uncertain or contingent until it actually occurs. 
State ex reI. Cunningham v. Feezell, 218 Tenn. 17, 400 
S.W.2d 716, 719. 
Nul. No; none. A l aw French negative particle com
mencing many phrases. 
Nul agard In�l ;)gard/. No award. The name of a plea 
in an action on an arbitration bond, by which the 
defendant traverses the making of any legal award. 
Nul charter, nul vente, ne nul done vault perpetual
ment, si Ie donor n'est seise al temps de contracts de 
deux droUs, sc. del droit de possession et del droit 
de properite. No grant, no sale, no gift, is valid forever 
unless the donor, at the time of the contract, is seised of 
two rights, namely, the right of possession, and the right 
of property. 
Nul disseisin In�l d;)siyz;)n/. In pleading, means no 
disseisin. A plea of the general issue in a real action, by 
which the defendant denies that there was any desseis
in. 
Null and void. Naught; of no validity or effect. Usual
ly coupled with the word "void;" as "null and void." 
The words "null and void," when used in a contract or 
statute are often construed as meaning "voidable." 
Burns Mortg. Co. v. Schwartz, C.C.A.N.J., 72 F.2d 991, 
992. "Null and void" means that which binds no one or 
is incapable of giving rise to any rights or obligations 
under any circumstances, or that which is of no effect. 
Zogby v. State, 53 Misc.2d 740, 279 N.Y.S.2d 665, 668. 
See also Void; Voidable. 
Nulla bona In�b bown;) I . Lat. No goods. The name of 
the return made by the sheriff to a writ of execution, 
when he has not found any goods of the defendant 
within his jurisdiction on which he could levy. Walter 
J. Klein Co. v. Kneece, 239 S.C. 478, 123 S.E.2d 870, 874. 
Nulla curia qure recordum non habet potest impon
ere finem neque aliquem mandare carceri; quia ista 
spectant tantummodo ad curills de recordo In;}l;) 
kyuriy;) kwiy r;)kord;)m non heyb;)t powt;)st impown;)riy 
fayn;)m nekwiy rel;)kw;)m mrenderiy karsiray, kway;) ist;) 
spektrent trent;)mowdow red kyuriy;)s diy r;)kor
dow/. No court which has not a record can impose a 
fine or commit any person to prison; because those 
powers belong only to courts of record. 
Nulla emptio sine pretio esse potest In�l;) empsh(iy)ow 
sayniy presh(iy)ow esiy powt;)st/. There can be no sale 
without a price. 
Nulla impossibilia aut inhonesta sunt prresumenda; 
vera autem et honesta et possibilia In;}l;) 
impos;)bH(i)y;) ot in(h)onest;) s�nt priyz(y);)mend;), vir;) 
ot;)m at (h)onest;) at pos;)bH(i)y;)I. No things that are 
impossible or dishonorable are to be presumed; but 
things that are true and honorable and possible. 
Nulla pactione effici potest ut dolus prrestetur In;}l;) 
prekshiyowniy ef;)say powt;)st �t dowl;)s pr;)stiyt;)r/. By 
no agreement can it be effected that a fraud shall be 
NULLIUS JURIS 
practiced. Fraud will not be upheld, though it may 
seem to be authorized by express agreement. 
Nulla virtus, nulla scientia, locum suum et dignita
tem conservare potest sine modestia In�l;) v�rty;)S, 
n�l;) sayensh(iy);), lowk;)m syuw;)m at dign;)teyt;)m 
kons;)rveriy powt;)st sayniy m;)dest(i)y;)I . Without mod
esty, no virtue, no knowledge, can preserve its place 
and dignity. 
Nulle regIe sans faute Inylll reygb son fowt/. There is 
no rule without a fault. 
Nulle terre sans seigneur Inyul ter son seynyur/. No 
land without a lord. A maxim of feudal law. 
Nulli enim res sua servit jure servitutis In�lay iyn;)m 
riyz s(y)UW;) S;}rv;)t juriy s�rv;)t(y)uwt;)s/. No one can 
have a servitude over his own property. 
Nullification. The state or condition of being void; 
without legal effect or status. Also, the act which 
produces such effect. See Void. 
Jury in criminal case possesses de facto power of 
"nullification," to acquit defendant regardless of 
strength of evidence against him. Cargill v. State, 255 
Ga. 616, 340 S.E.2d 891, 914. 
Nullity. Nothing; no proceeding; an act or proceeding 
in a cause which the opposite party may treat as though 
it had not taken place, or which has absolutely no legal 
force or effect. 
Nullity of marriage. The entire invalidity of a sup
posed, pretended, or attempted marriage, by reason of 
relationship or incapacity of the parties or other diri
ment impediments. An action seeking a decree declar
ing such an assumed marriage to be null and void is 
called a suit of "nullity of marriage." It differs from an 
action for divorce, because the latter supposes the exist
ence of a valid and lawful marriage. See Annulment. 
Nullius filius In;)lay;)s fil(i)y;)s/. Lat. The son of no
body; a bastard. A bastard is considered nullius fi lius 
as far as regards his right to inherit. But the rule of 
nullius fi lius does not apply in other respects, and has 
been changed by statute in most states so as to make 
him the child of his mother, in respect of inheritance. 
State v. Chavez, 42 N.M. 569, 82 P.2d 900, 902. 
Nullius hominis auctoritas apud nos valere debet, ut 
meliora non sequeremur si quis attulerit In;)lay;)s 
hom;)n;)s oktor;)tres rep;)d nows v;)liriy deb;)t, �t miyliyor;) 
non sekw;)riym;)r say kwis ;)t;}l;)r;)t/. The authority of 
no man ought to prevail with us, so far as to prevent our 
following better [opinions] if any one should present 
them. 
Nullius in bonis In;)lay;)s in bown;)s/. Lat. Among the 
property of no person. 
Nullius juris In;)lay;)s jur;)s/. Lat. In old English law, 
of no legal force. 
Nulli vendemus, nulli negabimus, aut differemus rec
tum vel justitiam I n�lay vendiym;)s, n;}lay n;)geyb;)m;)s, 
ot dif;)riym;)s rekt;)m vel j�stish(iy);)m/. We neither sell 
nor deny, nor delay, to any person, equity or justice.

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NULLO EST ERRATUM PLEA 
State ex reI. Macri v. City of Bremerton, 8 Wash.2d 93, 
111 P.2d 612, 619. 
Nullo est erratum plea In;}low est �reyt�m pliy/. 
Pleading interposed in a writ or assignment of error to 
the effect that there was no error and such a plea does 
not admit facts not well pleaded. Silverton v. Com., 314 
Mass. 52, 49 N.E.2d 439. 
Nullum arbitrium In;}l;}m itrbitriy;}m/. 1. Lat. No 
award. The name of a plea in an action on an arbitra
tion bond, for not fulfilling the award, by which the 
defendant traverses the allegation that there was an 
award made. 
Nullum crimen majus est inobedientia In;}l;}m krim�n 
meyj;}s est inowbiydiyensh(iy);}/. No crime is greater 
than disobedience. Applied to the refusal of an officer 
to return a writ. 
Nullum exemplum est idem omnibus In;}l;}m 
;}gzempl;}m est ayd;}m omn;}b;}s/. No example is the 
same for all purposes. No one precedent is adapted to 
all cases. A maxim in conveyancing. 
Nullum fecerunt arbitrium In;}l;}m f�sir�nt 
itrbitriy;}m/. L. Lat. The name of a plea to an action of 
debt upon an obligation for the performance of an 
award, by which the defendant denies that he submitted 
to arbitration, etc. 
Nullum iniquum est prresumendum in jure In;}l;}m 
;}nikw;}m est priyz(y);}mend;}m ;}njuriy/. No iniquity is 
to be presumed in law. 
Nullum matrimonium, ibi nulla dos In;}l;}m mcetr;}
mown(i)y;}m, aybay n;}l;} dows/. No marriage, no dower. 
Wait v. Wait, 4 Barb. N.Y., 192, 194. 
Nullum simile est idem nisi quatuor pedibus currit 
In;}l;}m sim;}liy est ayd;}m naysay kwotuw;}r ped;}b;}s 
k;}hr;}t/. No like is identical, unless it run on all fours. 
Nullum simile quatour pedibus currit In;}l�m sim;}liy 
kwotuw;}r ped;}b;}s k;}hr;}t/. No simile runs upon four 
feet (or all fo urs, as it is otherwise expressed). No 
simile holds in everything. 
Nullum Tempus Act In;)l;}m temp;}s rekt/. A name 
given to the statute 3 Geo. III, c. 16, because that act, in 
contravention of the maxim ffNullum tempus occurrit 
regi" (no lapse of time bars the king), limited the crown's 
right to sue, etc., to the period of sixty years. 
Nullum tempus aut locus occurit regi In;}l;}m temp�s 
at lowk;}s ;}k;}hr;}t riyjay/. No time or place affects the 
king. 
Nullum tempus occurrit regi In;}l;}m temp;}s �k;}hr;}t 
riyjay I. Time does not run against the king. The rule 
refers to the king in his official capacity as representing 
the sovereignty of the nation and not to the king as an 
individual. City of Bisbee v. Cochise County, 52 Ariz. 1, 
78 P.2d 982, 984. 
Nullum tempus occurrit reipublicre In;}l;}m temp;}s 
;}k;}hr;}t riyayp;}bl;}siy/. No time runs [time does not 
run] against the commonwealth or state. State v. 
Mudd, 273 Ala. 579, 143 So.2d 171, 174. 
1068 
Nullus alius quam rex possit episcopo demandare 
inquisitionem faciendam In;}l;}s eyliy;}s kwrem reks 
POS;}t ;}pisk�pow diymrenderiy inkw;}zishiyown;}m fre
shiyend;}m/. No other than the king can command the 
bishop to make an inquisition. 
Nullus commodum capere potest de injuria sua pro
pria In;}l;}s kom;}d�m krep;}riy powt;}st diy ;}njuriy;} 
s(y)uw� prowpriy;}/. No one can obtain an advantage by 
his own wrong. De Zotell v. Mutual Life Ins. Co. of New 
York, 60 S.D. 532, 245 N.W. 58, 59. 
Nullus debet agere de dolo, ubi alia actio subest 
In;}};}s deb;}d rej;}riy diy dowlow, yuwbay eyliy;} 
reksh(iy)ow s;}best/. Where another form of action is 
given, no one ought to sue in the action de dolo. 
Nullus dicitur accessorius post feloniam, sed ille qui 
novit principalem feloniam fecisse, et illum recep
tavit et comfortavit In;}l;}s dis;}t;}r reks;}soriy;}s pawst 
f;}lowniy�m, sed iliy kwity nowv;}t prins;}peyl;}m f;}low
niy;}m f;}sisiy, et il;}m resepteyv;}t et k;)mf;}rteyv;}t/. No 
one is called an "accessory" after the fact but he who 
knew the principal to have committed a felony, and 
received and comforted him. 
Nullus dicitur felo principalis nisi actor, aut qui 
prresens est, abettans aut auxilians ad feloniam fa
ciendam In;}l;}s dis;}t;}r fiylow prins�peyl;}s naysay rekt;}r 
at kwity priyz;}nz est, ;}betrenz at ;}gzil(i)yrenz red f;}low
niy;}m freshiyend;}m/. No one is called a "principal 
felon" except the party actually committing the felony, 
or the party present aiding and abetting in its commis
sion. 
Nullus idoneus testis in re sua intelligitur In;}l;}s 
;}downiy;}s test;}s in riy s(y)UW;} int;}lij;}t;}r/. No person is 
understood to be a competent witness in his own cause. 
Nullus jus alienum forisfacere potest In;}l;}s j;}S 
reliyiyn;}m fOr;}sfres;}riy powt;}st/. No man can forfeit 
another's right. 
Nullus recedat e curia cancellaria sine remedio 
I n;}};}s r;}siyd�t iy kyuriy;} krens;}leriy;} sayniy r�miydi 
yowl. No person should depart from the court of chan
cery without a remedy. 
Nullus simile est idem, nisi quatuor pedibus currit 
In;}l;}s sim;}liy est aydem, naysay kwatuwor ped;}b;}s 
k;}hr;}t/. No like is exactly identical unless it runs on 
all fours. 
Nullus videtur dolo facere qui suo jure utitur In;}l;}s 
v;}diyt;}r dowlo fres;}riy kwity s(y)uwow juriy yuwt;}t;}r/. 
No one is considered to act with guile who uses his own 
right. 
Nul ne doit s'enrichir aux depens des autres In;}l n;} 
dwa sanriyshey awd;}pon deyzowtr;}/. No one ought to 
enrich himself at the expense of others. 
Nul prendra advantage de son tort demesne In;}l 
prandra itdvantlizh d;} sown tor d;}men/. No one shall 
take advantage of his own wrong.

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1069 
Nul sans damage avera error ou attaint In�l son 
damazh avehra ehror uw atren/. No one shall have 
error or attaint unless he has sustained damage. 
Nul tiel corporation In�l tiyl korp�reysh:m/. No such 
corporation [exists]. The form of a plea denying the 
existence of an alleged corporation. 
Nul tiel record In�l tiyl rek�rd/. No such record. A 
plea denying the existence of any such record as that 
alleged by the plaintiff. It is the general plea in an 
action of debt on a judgment. 
Judgment of nul tiel record occurs when some plead
ing denies the existence of a record and issue is joined 
thereon; the record being produced is compared by the 
court with the statement in the pleading which alleges 
it; and if they correspond, the party asserting its exist
ence obtains judgment; if they do not correspond, the 
other party obtains judgment of nul tiel record (no such 
record). 
Nul tort. In pleading, a plea of the general issue to a 
real action, by which the defendant denies that he 
committed any wrong. 
Nul waste. No waste. The name of a plea in an action 
of waste, denying the committing of waste, and forming 
the general issue. 
Numbers game. "Numbers" or the numbers game is 
that game wherein the player wagers or plays that on a 
certain day a certain series of digits will appear or 
"come out" in a series such as the United States Trea
sury balance or parimutuel payoff totals of particular 
races at a certain racetrack for the day used as a 
reference, and though number of digits is fixed, usually 
at three, any player is free to select any number or 
quantity of numbers within the range of those digits, 
and designate amount of his wager upon each, and in 
such game neither number of players nor amount of 
money wagered nor total amount of payoffs can be 
predicted in any one day. U. S. v. Baker, C.A.Pa., 364 
F.2d 107, 111. Federal and state laws regulate such 
activities (see e.g. 18 U.S.C.A. § 1953). See also Lottery. 
Numerata pecunia In(y)uwm�reyt� p�kyuwn(i)y�/. Lat. 
In the civil law, money told or counted; money paid by 
tale. 
Numerical lottery. See Genoese lottery. 
Nummata In�meyt�/. The price of anything in money, 
as denariata is the price of a thing by computation of 
pence, and librata of pounds. 
Nummata terrre In�meyt� tehriy/. An acre of land. 
Nunciatio In�nshiyeysh(iy)ow/. Lat. In the civil law, a 
solemn declaration, usually in prohibition of a thing; a 
protest. 
Nuncio In�nsh(iy)ow/. The permanent official repre
sentative of the Pope at a foreign court or seat of 
government. They are called "ordinary" or "extraordi
nary," according as they are sent for general purposes or 
on a special mission. 
NUNQUAM INDEBITATUS 
Nuncius In�nsh(iy)�s/. In international law, a messen
ger; a minister; the pope's legate, commonly called a 
"nuncio." 
Nunc pro tunc In�nk prow t�nk/. Lat. Now for then. 
A phrase applied to acts allowed to be done after the 
time when they should be done, with a retroactive effect, 
i.e., with the same effect as if regularly done. Nunc pro 
tunc entry is an entry made now of something actually 
previously done to have effect of former date; office 
being not to supply omitted action, but to supply omis
sion in record of action really had but omitted through 
inadvertence or mistake. Seabolt v. State, Okl.Cr., 357 
P.2d 1014. 
Nunc pro tunc merely describes inherent power of 
court to make its records speak the truth, i.e., to correct 
record at later date to reflect what actually occurred at 
trial. Simmons v. Atlantic Coast Line R. Co., D.C.S.C., 
235 F.Supp. 325, 330. Nunc pro tunc signifies now for 
then, or, in other words, a thing is done now, which 
shall have same legal force and effect as if done at time 
when it ought to have been done. State v. Hatley, 72 
N.M. 377, 384 P.2d 252, 254. 
Fed.R.Civ.P. 15(b) permits amendment of pleadings to 
conform to evidence. Clerical mistakes in judgments, 
orders, or other parts of the record can be made by the 
court under Rule 60(a). 
Nuncupare In�IJk(y)�periy/. Lat. In the civil law, to 
name; to pronounce orally or in words without writing. 
Nuncupate In�IJky�peyt/. To declare publicly and sol
emnly. 
Nuncupative will. An oral will declared or dictated by 
the testator in his last sickness before a sufficient num
ber of witnesses, and afterwards reduced to writing. A 
will made by the verbal declaration of the testator, and 
usually dependent merely on oral testimony for proof. 
Such wills are invalid in certain states, and in others are 
valid only under certain circumstances. 
Nundinre In�nd�niy I. Lat. In the civil and old English 
law, a fair. In nundinis et mercatis lin n�nd�n�s et 
m�rkeyt�s/, in fairs and markets. 
Nundination In�nd�neysh�n/. Traffic at fairs and mar
kets; any buying and selling. 
Nunquam crescit ex post facto prreteriti delicti resti
matio In�IJkwrem kres�t eks powst frektow pr�tehr�tay 
d�liktay est�meysh(iy)ow I. The character of a past of
fense is never aggravated by a subsequent act or matter. 
Nunquam decurritur ad extraordinarium sed ubi 
deficit ordinarium In�IJkwrem d�k�hr�t�r red ekstr(�)or
d�neriy�m sed yuwbay der�s�t ord�neriy�m/. We are 
never to resort to what is extraordinary, but [until] what 
is ordinary fails. 
Nunquam fictio sine lege In�IJkwrem fiksh(iy)ow sayniy 
liyjiy/. There is no fiction without law. 
Nunquam indebitatus In�IJkwrem indeb�teyt�s/. Lat. 
Never indebted. The name of a plea in an action of 
indebitatus assumpsit, by which the defendant alleges 
that he is not indebted to the plaintiff.

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NUNTIUS 
Nunquam nimis dicitur quod nunquam satis dicitur 
In�IJkwrem nim:>s dis:>t:>r kwoo n�IJkwrem seyt:>s dis:>t:>r/. 
What is never sufficiently said is never said too much. 
Nunquam res humanre prospere succedunt ubi negli
guntur divinre In�IJkwrem riyz hyuwmeyniy prosp:>riy 
s:>ksiyd:>nt yu.wbay negl:>g�nt:>r d:>vayniy I. Human 
things never prosper where divine things are neglected. 
Nuntius In�nshiy:>sl. In old English practice, a messen
ger. One who was sent to make an excuse for a party 
summoned, or one who explained as for a friend the 
reason of a party's absence. An officer of a court; a 
summoner, apparitor, or beadle. 
Nuper obiit In(y)uwp:>r obiy;)t/. Lat. In practice, the 
name of a writ (now abolished) which, in the English 
law, lay for a sister coheiress dispossessed by her copar
cener of lands and tenements whereof their father, 
brother, or any common ancestor died seised of an estate 
in fee-simple. 
1070 
Nuptire secundre /n�pshiyiy s:>k�ndiy/. Lat. A second 
marriage. In the canon law, this term included any 
marriage subsequent to the first. 
Nuptial In�psh;)l/. Pertaining to marriage; constituting 
marriage; used or done in marriage. 
Nuptias non concubitus sed consensus facit 
In�pshiy;)s non k;)nkyu.wb;)t:>s sed k;)nsens;)s feys;)t/. 
Not cohabitation but consent makes the marriage. 
Nurture. To give nourishment to, to feed; to bring up, 
or train; to educate. The act of taking care of children, 
bringing them up, and educating them. 
Nurus In(y)ur;)s/. Lat. In the civil law, a son's wife; a 
daughter-in-law. 
Nycthemeron Inik8;)meron/. The whole natural day, or 
day and night, consisting of twenty-four hours. 
N.Y.S.E. New York Stock Exchange.

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o 
OASDI. Old Age, Survivors' and Disability Insurance. 
See Social Security Adminis tration. 
Oath. Any form of attestation by which a person signi
fies that he is bound in conscience to perform an act 
faithfully and truthfully, e.g. President's oath on enter
ing office, Art. II, Sec. 1, U.S .Const. Vaughn v. State, 
146 Tex.Cr.R. 586, 177 S.W.2d 59, 60. An affirmation of 
truth of a statement, which renders one willfully assert
ing untrue statements punishable for perjury. An out
ward pledge by the person taking it that his attestation 
or promise is made under an immediate sense of respon
sibility to God. A solemn appeal to the Supreme Being 
in attestation of the truth of some statement. An exter
nal pledge or asseveration, made in verification of state
ments made, or to be made, coupled with an appeal to a 
sacred or venerated object, in evidence of the serious 
and reverent state of mind of the party, or with an 
invocation to a supreme being to witness the words of 
the party, and to visit him with punishment if they be 
false. In its broadest sense, the term is used to include 
all forms of attestation by which a party signifies that 
he is bound in conscience to perform the act faithfully 
and truly. In a more restricted sense, it excludes all 
those forms of attestation or promise which are not 
accompanied by an imprecation. 
See also Affirmation; Attestation; False swearing; Jurat; 
Loyalty oath; Pauper's oath; Verification. 
Affirmation in lieu of oath. Fed.R. Civil P. 43 provides 
that whenever an oath is required under the rules, a 
solemn affirmation may be accepted in lieu thereof. See 
also Art. II, Sec. 1, and Art. VI, U.S .Const. 
Assertory oath. One relating to a past or present fact or 
state of facts, as distinguished from a "promissory" oath 
which relates to future conduct; particularly, any oath 
required by law other than in judicial proceedings and 
upon induction to office, such, for example, as an oath to 
be made at the custom-house relative to goods imported. 
Corporal oath. See Corporal oath. 
Decisive or decisory oath. In the civil law, where one of 
the parties to a suit, not being able to prove his charge, 
offered to refer the decision of the cause to the oath of 
his adversary, which the adversary was bound to accept, 
to tender the same proposal back again, otherwise the 
whole was taken as confessed by him. 
Extrajudicial oath. One not taken in any judicial pro
ceeding, or without any authority or requirement of law, 
though taken formally before a proper person. 
False oath. See False swearing; Perjury. 
Judicial oath. One taken in some judicial proceeding or 
in relation to some matter connected with judicial pro
ceedings. One taken before an officer in open court, as 
distinguished from a "non-judicial" oath, which is taken 
before an officer ex parte or out of court. See also 
Witnesses, below. 
Loyalty oath. See Oath of allegiance. 
Oath of office. Various declarations of promises, made 
by persons who are about to enter upon the duties of a 
public office, concerning their performance of that of
fice. An oath of office is required, by federal and state 
constitutions, and by various statutes, to be made by 
major and minor of ficials. See e.g. 28 U.S.C.A. § 544 
(U.S. attorneys). See also Oath of allegiance; and Offi
cial oath, below. 
Official oath. One taken by an officer when he assumes 
charge of his of fice, whereby he declares that he will 
faithfully discharge the duties of the same, or whatever 
else may be required by statute in the particular case. 
See Art. VI, U.S. Const. See also Oath of office above. 
Poor debtor's oath. See Pauper's oath. 
Promissory oaths. Oaths which bind the party to ob
serve a certain course of conduct, or to fulfill certain 
duties, in the future, or to demean himself thereafter in 
a stated manner with reference to specified objects or 
obligations; such, for example, as the oath taken by a 
high executive off icer, a legislator, a judge, a person 
seeking naturalization, an attorney at law. A solemn 
appeal to God, or, in a wider sense, to some superior 
sanction or a sacred or revered person in witness of the 
inviolability of a promise or undertaking. 
Purgatory oath. An oath by which a person purges or 
clears himself from presumptions, charges or suspicions 
standing against him, or from a contempt. 
Solemn oath. A corporal oath. 
Suppletory oath. In the civil and ecclesiastical law, the 
testimony of a single witness to a fact is called "half
proof," on which no sentence can be fo unded; in order to 
supply the other half of proof, the party himself (plain
tiff or defendant) is admitted to be examined in his own 
behalf, and the oath administered to him for that pur
pose is called the "suppletory oath," because it supplies 
the necessary quantum of proof on which to found the 
sentence. This term, although without application in 
American law in its original sense, is sometimes used as 
a designation of a party's oath required to be taken in 
authentication or support of some piece of documentary 
1071

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OATH 
evidence which he offers, for example, his books of 
account. 
Voluntary oath. Such as a person may take in extraju
dicial matters, and not regularly in a court of justice, or 
before an officer invested with authority to administer 
the same. 
Witnesses. Before testifying, every witness shall be re
quired to declare that he will testify, truthfully, by oath 
or affirmation administered in a form calculated to 
awaken his conscience and impress his mind with his 
duty to do so. Fed.Evid.R. 603. See also Affirmation in 
lieu of oath, above. 
Oath against bribery. In England, one which could 
have been administered to a voter at an election for 
members of parliament. Abolished in 1854. 
Oath ex officio lowO eks ;}fish(iy)ow/. In old English 
law, the oath by which a clergyman charged with a 
criminal offense was formerly allowed to swear himself 
to be innocent; also the oath by which the compurgators 
swore that they believed in his innocence. 
Oath in litem lowO in hiyt;}m/. In the civil law, an oath 
permitted to be taken by the plaintiff, for the purpose of 
proving the value of the subject-matter in controversy, 
when there was no other evidence on that point, or 
when the defendant fraudulently suppressed evidence 
which might have been available. 
Oath of allegiance or loyalty. An oath by which a 
person promises and binds himself to bear true alle
giance to a particular sovereign or government (e.g., the 
United States), and to support its Constitution, adminis
tered generally to certain public officers or officials, to 
members of the armed services, to attorneys on being 
admitted to the bar, to aliens applying for naturalization 
(8 U.S.C.A. § 1448), etc. Such oaths which are not 
overbroad have been upheld. Elfbrandt v. Russell, 384 
U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Cole v. Richard
son, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593. As to 
oath of allegiance to the Constitution as required of 
President, members of Congress, and executive and judi
cial officers, see Art. II, Sec. 1, and Art. VI, U.S. Const. 
It is commonly provided that an affirmation may be 
given in lieu of an oath. 
Oath of calumny lowO ;}v krel;}mniy/. In the civil law, 
an oath which a plaintiff was obliged to take that he was 
not prompted by malice or trickery in commencing his 
action, but that he had bona fide a good cause of action. 
Oath-rite. The fo rm used at the taking of an oath. 
Ob. Lat. On account of; for. Several Latin phrases 
and maxims, commencing with this word, are more 
commonly introduced by "in" (q.v.). 
Obreratus lob;}reyt;}s/. Lat. In Roman law, a debtor 
who was obliged to serve his creditor until his debt was 
discharged. 
Ob continentiam delicti lob kont;}nensh(iy);}m d;}lik
tay/ . On account of contiguity to the offense, i.e., being 
contaminated by con junction with something illegal. 
1072 
Ob contingentiam lob kontinjensh(iy);}m/. On account 
of connection; by reason of similarity. 
Obedience. Compliance with a command, prohibition, 
or known law and rule of duty prescribed. The perform
ance of what is required or enjoined by authority, or the 
abstaining from what is prohibited, in compliance with 
the command or prohibition. 
Obedientia hbiydiyensh(iy);}/. An of fice, or the admin
istration of it; a kind of rent; submission; obedience. 
Obedientia est legis essentia I;}biydiyensh(iy);} est liyj;}s 
;}sensh(iy);}I . Obedience is the essence of the law. 
Obediential obligation I ;}biydiyensh;}l obl;}geysh;}n/. 
See Obligation. 
Obedientiarius; obedientiary I ;}biydiyenshiyeriy;}s; 
;}biydiyensh;}riy I. A monastic officer. 
Ob favorem mercatorum lob f;}vor;}m m�rk;}tor;}m/. In 
favor of merchants. 
Ob infamiam non solet juxta legem terrre aliquis per 
legem apparentem se purgare, nisi prius convictus 
fuerit vel confessus in curia lob infeym(i)y;}m non 
sowl;}t j�kst;} liyj;}m tehriy rebkw;}s p�r liyj;}m rep;}rent;}m 
siy p;}rgeriy, miysay pray;}s k;}nvikt;}s vel k;}nfes;}s in 
kyur(i)y;}I . On account of evil report, it is not usual, 
according to the law of the land, for any person to purge 
himself, unless he have been previously convicted, or 
confessed in court. 
Obit lowb;}t/. A funeral solemnity, or office for the 
dead. The anniversary of a person's death; the anniver
sary of fice. 
Obiter lo(w)b;}t;}r/. Lat. By the way; in passing; inci
dentally; collaterally. 
Obiter dictum lo(w)b;}t;}r dikt;}m/. Words of an opinion 
entirely unnecessary for the decision of the case. Noel 
v. aIds, 78 U.S.App.D.C. 155, 138 F.2d 581, 586. A 
remark made, or opinion expressed, by a judge, in his 
decision upon a cause, "by the way," that is, incidentally 
or collaterally, and not directly upon the question before 
him, or upon a point not necessarily involved in the 
determination of the cause, or introduced by way of 
illustration, or analogy or argument. Such are not 
binding as precedent. See Dicta; Dictum. 
Obit sine prole lowb;}t sayniy prowliy I. Lat. [He] died 
without issue. 
Object, v. In legal proceedings, to object (e.g., to the 
admission of evidence) is to interpose a declaration to 
the effect that the particular matter or thing under 
consideration is not done or admitted with the consent 
of the party objecting, but is by him considered improper 
or illegal, and referring the question of its propriety or 
legality to the court. See also Objection. 
Object, n. End aimed at, the thing sought to be accom
plished; the aim or purpose, the thing sought to be 
attained. 
Anything which comes within the cognizance or scru
tiny of the senses, especially anything tangible or visi
ble. Moore v. Union Mut. Fire Ins. Co., 11 2 Vt. 218, 22

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1073 
A.2d 503, 505. That which is perceived, known, thought 
of, or signified; that toward which a cognitive act is 
directed. The term includes whatever may be presented 
to the mind as well as to the senses; whatever, also, is 
acted upon or operated upon affirmatively, or intention
ally influenced by anything done, moved, or applied 
thereto. It may be used as having the sense of effect. 
See also Intent; Motive. 
Objection. Act of objecting; that which is, or may be, 
presented in opposition; an adverse reason or argument; 
a reason for objecting or opposing; a feeling of disap
proval. 
The act of a party who objects to some matter or 
proceeding in the course of a trial, or an argument or 
reason urged by him in support of his contention that 
the matter or proceeding objected to is improper or 
illegal. Used to call the court's attention to improper 
evidence or procedure. Such objections in open court 
are important so that such will appear on the record for 
purposes of appeal. See Fed.Evid.R. 103(a)(1); Fed.R. 
Civil P. 46, and Fed.R.Crim.P. 51. See also Contempora
neous objection rule; Object (v). 
Objection to jury. See Challenge. 
Objective symptom. Those which a surgeon or physi
cian discovers from an examination of his patient; "sub
jective symptoms" being those which he learns from 
what his patient tells him. Schroeder v. Western Union 
Telegraph Co., Mo.App., 129 S.W.2d 917, 922. 
Object of an action. Legal relief to prevent or redress 
the wrong. The thing sought to be obtained by the 
action; the remedy demanded or the relief or recovery 
sought or prayed for; not the same thing as the cause of 
action or the subject of the action. 
Object of a statute. Aim, intent or purpose of its 
enactment. End or design which it is meant to accom
plish, while the "subject" is the matter to which it 
relates and with which it deals. Matter or thing form
ing groundwork of statute. 
Objects of a power. Those among whom donee is given 
power to appoint. 
Objurgatrix lobj�rgeytr�ks/. In old English law, scolds 
or unquiet women were referred to as objurgatrices and 
were punished with the cucking-stool (q.v.). 
Oblata I �bleyt�/. Gifts or offerings made to the king by 
any of his subjects; old debts, brought, as it were, 
together from preceding years, and put on the present 
sheriffs charge. 
Oblata terrre I�bleyt� tehriy/. Half an acre, or, as some 
say, half a perch, of land. 
Oblate. See Oblati. 
Oblate Rolls. Chancery Rolls (1199-1641), called also 
Fine Rolls, containing records of payments to the king 
by way of oblate or fine for the grant of privileges, or by 
way of amercement for breach of duty. 
Oblati I�bleytay/. In old European law, voluntary 
slaves of churches or monasteries. 
OBLIGATIO EX DELICTO 
Oblati actio I�bleytay reksh(iy)ow/. In the civil law, an 
action given to a party against another who had offered 
to him a stolen thing, which was found in his possession. 
Oblatio I�bleysh(iy)ow/. Lat. In the civil law, a tender 
of money in payment of a debt made by debtor to 
creditor. Whatever is offered to the church by the 
pious. 
Oblation. Oblations, or obventions, are offerings or cus
tomary payments made, in England, to the minister of a 
church, including fees on marriages, burials, mortuaries, 
etc. (q.v.), and Easter offerings. They may be commuted 
by agreement. 
Oblationes dicuntur qurecunque a piis fidelibusque 
christianis offeruntur deo et ecclesire, sive res solidre 
sive mobiles I �bleyshiy6wniyz d�kant�r kwiyka1Jkwiy 
ey pay�s f�diyl�baskwiy kristiyeyn�s Of�rant�r diyow et 
�kliyziyiy, sayviy riyz s61�diy sayviy m6wb�liyz/. Those 
things are called "oblations" which are offered to God 
and to the Church by pious and faithful Christians, 
whether they are movable or immovable. 
Obligate. To bind or constrain; to bind to the observ
ance or performance of a duty; to place under an 
obligation. To bind one's self by an obligation or prom
ise; to assume a duty; to execute a written promise or 
covenant; to make a writing obligatory. 
Obligatio lobbgeysh(iy)ow/. Lat. In Roman law, a 
legal bond which obliges the performance of something 
in accordance with the law of the land. It corresponded 
nearly to our word contract. The legal relation existing 
between two certain persons whereby one (the creditor) 
is authorized to demand of the other (the debtor) a 
certain performance which has a money value. In this 
sense obligatio signifies not only the duty of the debtor, 
but also the right of the creditor. The fact establishing 
such claim and debt, as also the instrument evidencing 
it, is termed "obligation." 
Obligatio civilis lobl�geysh(iy)ow siv�l�s/. An obli
gation enforceable by action, whether it derives its ori
gin from the jus civile, as the obligation engendered by 
formal contracts or the obligation enforceable by bilat
erally penal suits, or from such portion of the jus genti
um as had been completely naturalized in the civil law 
and protected by all its remedies, such as the obligation 
engendered by formless contracts. 
Obligatio ex contractu I obl�geysh(iy)ow eks k�n
trrekt(y)uw/. An obligation arising from contract, or an 
antecedent jus in personam. In this there are two 
stages,-first, a primary or sanctioned personal right 
antecedent to wrong, and, afterwards, a secondary or 
sanctioning personal right consequent on a wrong. 
Obligatio ex delicto, or obligatio ex maleficio 
lobbgeysh(iy)ow eks d�liktow;omrebfish(iy)ow/. An ob
ligation founded on wrong or tort, or arising from the 
invasion of a jus in rem. In this there is the second 
stage, a secondary or sanctioning personal right conse
quent on a wrong, but the first stage is not a personal 
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OBLIGATIO EX DELICTO 
whether a primordial right, right of status, or of proper
ty. 
Obligation. A generic word, derived from the Latin 
substantive "obligatio," having many, wide, and varied 
meanings, according to the context in which it is used. 
That which a person is bound to do or forbear; any duty 
imposed by law, promise, contract, relations of society, 
courtesy, kindness, etc. Helvering v. British-American 
Tobacco Co., C.C.A., 69 F.2d 528, 530. Law or duty 
binding parties to perform their agreement. An under
taking to perform. That which constitutes a legal or 
moral duty and which renders a person liable to coer
cion and punishment for neglecting it; a word of broad 
meaning, and the particular meaning intended is to be 
gained by consideration of its context. An obligation or 
debt may exist by reason of a judgment as well as an 
express contract, in either case there being a legal duty 
on the part of the one bound to comply with the prom
ise. Schwartz v. California Claim Service, 52 Cal.App.2d 
47, 125 P.2d 883, 888. Liabilities created by contract or 
law (i.e. judgments). Rose v. W. B. Worthen Co., 186 
Ark. 205, 53 S.W.2d 15, 16. As legal term.word original
ly meant a sealed bond, but it now extends to any 
certain written promise to pay money or do a specific 
thing. Lee v. Kenan, C.C.A.Fla., 78 F.2d 425. A formal 
and binding agreement or acknowledgment of a liability 
to pay a certain sum or do a certain thing. United 
States v. One Zumstein Briefmarken Katalog 1938, D.C. 
Pa., 24 F.Supp. 516, 519. The binding power of a vow, 
promise, oath, or contract, or of law, civil, political, or 
moral, independent of a promise; that which constitutes 
legal or moral duty. 
See also Contract; Duty; Liabil ity. 
Absolute obligation. One which gives no alternative to 
the obligor, but requires fulfillment according to the 
engagement. 
Conjunctive or alternative obligation. The former is one 
in which the several objects in it are connected by a 
copulative, or in any other manner which shows that all 
of them are severally comprised in the contract. This 
contract creates as many different obligations as there 
are different objects; and the debtor, when he wishes to 
discharge himself, may force the creditor to receive 
them separately. But where the things which form the 
object of the contract are separated by a disjunctive, 
then the obligation is alternative, and the performance 
of either of such things will discharge the obligor. The 
choice of performing one of the obligations belongs to 
the obligor, unless it is expressly agreed that it shall 
belong to the creditor. A promise to deliver a certain 
thing or to pay a specified sum of money is an example 
of an alternative obligation. Civ.Code La. arts. 2063, 
2066, 2067. 
Contractual obligation. One which arises from a con
tract or agreement. See Contract; Impairing the obli
gation of contracts. 
Current obligation. See Current obligations. 
Determinate or indeterminate obligation. A determinate 
obligation is one which has for its object a certain thing: 
1074 
as, an obligation to deliver a certain horse named Buce
phalus, in which case the obligation can be discharged 
only by delivering the identical horse. An indeter
minate obligation is one where the obligor binds himself 
to deliver one of a certain species: as, to deliver a horse, 
where the delivery of any horse will discharge the 
obligation. 
Divisible or indivisible obligation. A divisible obligation 
is one which, being a unit, may nevertheless be lawfully 
divided, with or without the consent of the parties. An 
indivisible obligation is one which is not susceptible of 
division: as, for example, if I promise to pay you one 
hundred dollars, you cannot assign one-half of this to 
another, so as to give him a right of action against me 
for his share. 
Express or implied obligation. Express or conventional 
obligations are those by which the obligor binds himself 
in express terms to perform his obligation, while implied 
obligations are such as are raised by the implication or 
inference of the law from the nature of the transaction. 
Failure to meet obligations. See Failure to meet obli
gations. 
Joint or several obligation. A joint obligation is one by 
which two or more obligors bind themselves jointly for 
the performance of the obligation. A several obligation 
is one where the obligors promise, each for himself, to 
fulfill the engagement. 
Moral obligation. A duty which is valid and binding in 
conscience and according to natural justice, but is not 
recognized by the law as adequate to set in motion the 
machinery of justice; that is, one which rests upon 
ethical considerations alone, and is not imposed or en
forced by positive law. A duty which would be enforce
able by law, were it not for some positive rule, which, 
with a view to general benefit, exempts the party in that 
particular instance from legal liability. See also Love 
and affection. 
Natural or civil obligation. A natural obligation is one 
which cannot be enforced by action, but which is binding 
on the party who makes it in conscience and according 
to natural justice. As, for instance, when the action is 
barred by the act of limitation, a natural obligation still 
subsists, although the civil obligation is extinguished. 
Ogden v. Saunders, 25 U.S. 213, 337, (12 Wheat.) 6 L.Ed. 
606. A civil obligation is a legal tie, which gives the 
party with whom it is contracted the right of enforcing 
its performance by law. 
Obediential obligation. One incumbent on parties in 
consequence of the situation or relationship in which 
they are placed. 
Perfect or imperfect obligation. A perfect obligation is 
one recognized and sanctioned by positive law; one of 
which the fulfillment can be enforced by the aid of the 
law. But if the duty created by the obligation operates 
only on the moral sense, without being enforced by any 
positive law, it is called an "imperfect obligation, " and 
creates no right of action, nor has it any legal operation. 
The duty of exercising gratitude, charity, and the other

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1075 
merely moral duties are examples of this kind of obli
gation. Edwards v. Kearzey, 96 U.S. 595, 600, 24 L.Ed. 
793. 
Personal or heritable obligation. An obligation is herita
ble when the heirs and assigns of one party may enforce 
the performance against the heirs of the other. It is 
personal when the obligor binds himself only, not his 
heirs or representatives. An obligation is strictly per
sonal when none but the obligee can enforce the per
formance, or when it can be enforced only against the 
obligor. An obligation may be personal as to the obli
gee, and heritable as to the obligor, and it may in like 
manner be heritable as to the obligee, and personal as to 
the obligor. For the term personal obligation, as used in 
a different sense, see the next paragraph. 
Personal or real obligation. A personal obligation is one 
by which the obligor binds himself to perform an act, 
without directly binding his property for its perform
ance. A real obligation is one by which real estate, and 
not the person, is liable to the obligee for the perform
ance. 
Primary or secondary obligation. An obligation which is 
the principal object of the contract. For example, the 
primary obligation of the seller is to deliver the thing 
sold, and to transfer the title to it. It is distinguished 
from the accessory or secondary obligation to pay dam
ages for not doing so. The words "primary" and "di
rect," contrasted with "secondary," when spoken with 
reference to an obligation, refer to the remedy provided 
by law for enforcing the obligation, rather than to the 
character and limits of the obligation itself. 
A primary obligation, which in one sense may also be 
called a principal obligation, is one which is contracted 
with a design that it should itself be the first fulfilled. 
A secondary obligation is one which is contracted and is 
to be performed in case the primitive cannot be. For 
example, if one sells his house, he binds himself to give a 
title; but if he finds he cannot as when the title is in 
another, then his secondary obligation is to pay damages 
for nonperformance of the obligation. 
Principal or accessory obligation. A principal obligation 
is one which arises from the principal object of the 
engagement of the contracting parties; while an accesso
ry obligation depends upon or is collateral to the princi
pal. For example, in the case of the sale of a house and 
lot of ground, the principal obligation on the part of the 
vendor is to make title for it; the accessory obligation is 
to deliver all the title-papers which the vendor has 
relating to it, to take care of the estate until it is 
delivered, and the like. See, further, the title Accessory 
obligation. 
Pure obligation. One which is not suspended by any 
condition, whether it has been contracted without any 
condition, or, when thus contracted, the condition has 
been accomplished. See Simple or conditional obli
gation, below. 
Simple or conditional obligation. Simple obligations are 
such as are not dependent for their execution on any 
event provided for by the parties, and which are not 
OBLIGATIONES QUASI EX.CONTRACTU 
agreed to become void on the happening of any such 
event. Conditional obligations are such as are made to 
depend on an uncertain event. If the obligation is not to 
take effect until the event happens, it is a suspensive 
condition; if the obligation takes effect immediately, but 
is liable to be defeated when the event happens, it is 
then a resolutory condition. A simple obligation is also 
defined as one which is not suspended by any condition, 
either because it has been contracted without condition, 
or, having been contracted with one, the condition has 
been fulfilled; and a conditional obligation is also de
fined as one the execution of which is suspended by a 
condition which has not been accomplished, and subject 
to which it has been contracted. 
Single or penal obligation. A penal obligation is one to 
which is attached a penal clause, which is to be enforced 
if the principal obligation be not performed. A single 
obligation is one without any penalty, as where one 
simply promises to pay another one hundred dollars. 
This is called a single bill, when it is under seal. 
Solidary obligation. In the law of Louisiana, one which 
binds each of the obligors for the whole debt, as distin
guished from a "joint" obligation, which binds the par
ties each for his separate proportion of the debt. Groves 
v. Sentell, 153 U.S. 465, 14 S.Ct. 898, 38 L.Ed. 785. See 
Solidary. 
Obligatio naturalis /obl:lgeysh(iy)ow metY:lreyl:ls/. An 
obligation not immediately enforceable by action; one 
deriving its validity from the law of nature, or one 
imposed by that portion of the jus gentium which is only 
imperfectly recognized by civil law. 
Obligationes ex delicto or ex maleficio /obl:lgeyshiy6w 
niyz eks d:lliktow/"mci!l;)fish(iy)ow/. Obligations arising 
from the commission of a wrongful injury to the person 
or property of another. 
"Delictum" is not exactly synonymous with "tort," for, 
while it includes most of the wrongs known to the 
common law as torts, it is also wide enough to cover 
some offenses (such as theft and robbery) primarily 
injurious to the individual, but now only punished as 
crimes. Such acts gave rise to an obligatio, which 
consisted in the liability to pay damages. 
Obligationes ex variis causarum figuris /obl:lgey
shiy6wniyz eks veriy;)s kozer;)m f;)gUr:ls/ . Although 
Justinian confined the divisions of obligations to four 
classes, namely obligationes ex contractu, quasi ex con
tractu, ex maleficio and quasi ex maleficio, there are 
many species of obligations which cannot properly be 
reduced within any of these classes. Some authorities, 
consequently, established a fifth class, to receive the 
odds and ends which belonged nowhere else, and gave to 
this class the above designation. 
Obligationes quasi ex contractu /obl;)geyshiy6wniyz 
kweyzay eks k;)ntrrekt(y)uw/. Often persons who have 
not contracted with each other, under a certain state of 
facts, are regarded by the Roman law as if they had 
actually concluded a convention between themselves. 
The legal relation which then takes place between these 
persons, which has always a similarity to a contract

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OBLIGATIONES QUASI EX CONTRACTU 
obligation, is therefore termed obligatio quasi ex con
tractu. Obligations in the nature of a contract called 
quasi contract or implied in law contract. See Contract. 
Such a relation arises from the conducting of affairs 
without authority (negotiorum gestio) or unauthorized 
agency; from the management of property that is in 
common when the community arose from casualty (com
munio incidens); from the payment of what was not due 
(solutio indebiti); from tutorship and curatorship (tutela 
and cura), resembling the relation of guardian and ward; 
from taking possession of an inheritance (additio heredi
tatis and agnitio bonorum possess ion is); and in many 
other cases. 
Obligationes quasi ex delicto, or obligationes quasi 
ex maleficio /obl�geyshiyowniyz kweyzay eks d�lik
towrm,H�fish(iy)ow/. This class embraces all torts not 
coming under the denomination of delicta and not hav
ing a special form of action provided for them by law. 
They differed widely in character, and at common law 
would in some cases give rise to an action on the case, in 
others to an action on an implied contract. 
Obligation of a contract. That which the law in force 
when contract is made obliges parties to do or not to do, 
and the remedy and legal means to carry it into effect. 
The "obligation of a contract" is the duty of perform
ance. The term includes everything within the obligato
ry scope of the contract, and it includes the means of 
enforcement. 
Obligation solidaire /obligasyown solider /. This, in 
French law, corresponds to joint and several liability in 
English law, but is applied also to the joint and several 
rights of the creditors and parties to the obligation. 
Obligatio Prretorire /obl�geysh(iy)ow pr�toriyiy/. The 
Romans considered that obligations derived their validi
ty solely from positive law. At first the only ones 
recognized were those established in special cases in 
accordance with the forms prescribed by the strict jus 
civile. In the course of time, however, the prretorian 
jurisdiction, in mitigation of the primitive rigor of the 
law, introduced new modes of contracting obligations 
and provided the means of enforcing them; hence the 
twofold division made by Justinian of obligationes civiles 
and obligationes prretorire. 
Obligatory pact. See Pact. 
Obligatory rights. See Right. 
Obligatory writing. See Writing obligatory. 
Obligee / obl�jiy /. A promisee. The person in favor of 
whom some obligation is contracted, whether such obli
gation be to pay money or to do or not to do something. 
The party to whom someone else is obligated under a 
contract. Thus, if C loans money to D, C is the obligee 
and D is the obligor under the loan. The party to whom 
a bond is given. 
Obligor /obl�g�r/obl�gor/. A promisor. The person 
who has engaged to perform some obligation. Person 
obligated under a contract or bond. 
1076 
Obliquus / �bhiykw�s/. Lat. In the old law of descents, 
oblique; cross; transverse; collateral. The opposite of 
rectus, right, or upright. 
In the law of evidence, indirect; circumstantial. 
Obliterated corner. See Corner. 
Obliteration. To destroy; wipe or rub out; erase. Era
sure or blotting out of written words. A method of 
revoking a will or a clause therein if accompanied by the 
required intent to revoke. See also Alteration; Deface; 
Spoliation. 
Oblivion. Act of forgetting, or fact of having forgotten; 
forgetfulness. Official ignoring of offenses. Amnesty, 
or general pardon, as, an act of oblivion. State or fact of 
being forgotten. See Amnesty; Pardon. 
Oblivious. Evincing oblivion; forgetful; forgetting. 
Where thing is extinguished from mind. 
Obloquy / obbkwiy /. Censure and reproach. Blame, 
reprehension, being �nder censure, a cause or object of 
reproach, a disgrace. 
Obnoxious. "Obnoxious " and "offensive" in ordinary 
use are synonymous, and mean highly objectionable, 
disagreeable, displeasing, and distasteful. 
Obreptio / obrepsh(iy)ow / . Lat. The obtaining a thing 
by fraud or surprise. 
Obreption / obrepsh�n/ . Obtaining anything by fraud or 
surprise. Acquisition of escheats, etc., from the sover
eign, by making false representations. See also Subrep
tion. 
Obrogare /obr�geriy/. Lat. In the civil law, to pass a 
law contrary to a former law, or to some clause of it; to 
change a former law in some part of it. 
Obrogation. In the civil law, the annulling a law, in 
whole or in part, by passing a law contrary to it. The 
alteration of a law. See also Abrogation. 
Obscene. Objectionable or offensive to accepted stan
dards of decency. Basic guidelines for trier of fact in 
determining whether a work which depicts or describes 
sexual conduct is obscene is whether the average person, 
applying contemporary community standards would find 
that the work, taken as a whole, appeals to the prurient 
interest, whether the work depicts or describes, in a 
patently offensive way, sexual conduct specifically de
fined by the applicable state law, and whether the work, 
taken as a whole, lacks serious literary, artistic, politi
cal, or scientific value. Miller v. California, 413 U.S. 15, 
24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419; Pope v. Illinois, 
481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439. A state 
may choose to define obscenity offense in terms of "con
temporary community standards" without further speci
fication or may choose to define standards in more 
precise geographic terms. Jenkins v. Georgia, 418 U.S. 
153, 94 S.Ct. 2750, 41 L.Ed.2d 642. See also Censor; 
Censorship; Contempor ary communi ty standards; Domi
nant theme; Lewd; Obscenity; Pornographic; Prurient 
interest.

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Obscene libel. That type of defamation which holds up 
a person to ridicule, scorn or contempt to a considerable 
and respectable class in the community by printed 
words or configurations of a lewd and lascivious nature. 
Obscenity. The character or quality of being obscene; 
conduct tending to corrupt the public morals by its 
indecency or lewdness. 
Material is obscene if, considered as a whole, its pre
dominant appeal is to prurient interest, that is, a shame
ful or morbid interest, in nudity, sex or excretion, and if 
in addition it goes substantially beyond customary limits 
of candor in describing or representing such matters. 
Predominant appeal shall be judged with reference to 
ordinary adults unless it appears from the character of 
the material or the circumstances of its dissemination to 
be designed for children or other specially susceptible 
audience. Undeveloped photographs, molds, printing 
plates, and the like, shall be deemed obscene notwith
standing that processing or other acts may be required 
to make the obscenity patent or to disseminate it. Mod
el Penal Code, § 251.4. 
Federal laws prohibit the mailing, transportation for 
sale or distribution, importation, and broadcasting of 
obscene matters. 18 U.S.C.A. § 1461 et seq. 
See also Censor; Censorship; Lewd; Obscene; Pander 
(Pandering of obscenity); Profanity. 
Obscure. When applied to words, statements or mean
ings, it signifies not perspicuous, not clearly expressed, 
vague, hard to understand. 
Observe. To perform that which has been prescribed by 
some law or usage. To adhere to or abide by. 
Obses /6bsiyz/. Lat. In time of war, a hostage. Ob
sides, hostages. 
Obsignare /obsigneriy/. Lat. In the civil law, to seal 
up; as money that had been tendered and refused. 
Obsignatory / obsign;}t(;})riy /. Ratifying and confirming. 
Obsolescence. Condition or process of falling into di
suse. The diminution in value of property caused by 
changes in technology, public taste, and new inventions 
rendering the property less desirable on the market. A 
decline in market value of an asset caused by improved 
alternatives becoming available that will be more cost
effective; such decline in market value is unrelated to 
physical changes in the asset itself. The process where
by property, because of causes other than physical dete
rioration, loses its economic usefulness to taxpayer. 
Anaconda Co. v. Property Tax Dept., App., 94 N.M. 202, 
608 P.2d 514, 619. See also Economic obsolescence; 
Functional obsolescence. 
Obsolescent. Becoming obsolete; going out of use; not 
entirely disused, but gradually becoming so. See Obso
lescence. 
Obsolete. That which is no longer used. Becker v. 
Anheuser-Busch, Inc., C.C.A.Mo., 120 F.2d 403, 416. 
Disused; neglected; not observed. See also Obso
lescence. 
OBSTRUCTING MAILS 
The term is applied to statutes which have become 
inoperative by lapse of time, either because the reason 
for their enactment has passed away, or their subject
matter no longer exists, or they are not applicable to 
changed circumstances, or are tacitly disregarded by all 
men, yet without being expressly abrogated or repealed. 
Obstante / ;}bstrentiy /. Withstanding; hindering. See 
Non obstante. 
Obsta principiis /6bst;} prinsipiy;}s/. Lat. Withstand 
beginnings; resist the first approaches or encroach
ments. Boyd v. U. S., 116 U.S. 616, 635, 6 S.Ct. 524, 535, 
29 L.Ed. 746. 
Obstinate desertion. "Obstinate" as used of desertion, 
which is a ground for divorce, means determined, fixed, 
persistent. Persisted in against the willingness of the 
injured party to have it concluded. 
Obstriction. Obligation; bond. 
Obstruct. To hinder or prevent from progress, check, 
stop, also to retard the progress of, make accomplish
ment of difficult and slow. Conley v. United States, 
C.C.A.Minn., 59 F.2d 929, 936. To be or come in the way 
of or to cut off the sight of an object. To block up; to 
interpose obstacles; to render impassable; to fill with 
barriers or impediments, as to obstruct a road or way. 
To impede; to interpose impediments to the hindrance 
or frustration of some act or service, as to obstruct an 
officer in the execution of his duty. As applied to 
navigable waters, to "obstruct" them is to interpose such 
impediments in the way of free and open navigation 
that vessels are thereby prevented from going where 
ordinarily they have a right to go or where they may 
find it necessary to go in their maneuvers. 
Obstructing justice. Impeding or obstructing those who 
seek justice in a court, or those who have duties or 
powers of administering justice therein. The act by 
which one or more persons attempt to prevent, or do 
prevent, the execution of lawful process. The term 
applies also to obstructing the administration of justice 
in any way-as by hindering witnesses from appearing, 
assaulting process server, influencing jurors, obstructing 
court orders or criminal investigations. Any act, con
duct, or directing agency pertaining to pending proceed
ings, intended to play on human frailty and to deflect 
and deter court from performance of its duty and drive 
it into compromise with its own unfettered judgment by 
placing it, through medium of knowingly false assertion, 
in wrong position before public, constitutes an obstruc
tion to administration of justice. Toledo Newspaper Co. 
v. U. S., 247 U.S. 402, 38 S.Ct. 560, 564, 62 L.Ed. 1186. 
See 18 U.S.C.A. § 1501 et seq.; Model Penal Code 
§ 242.1 et seq. See also Misprision of felony; Obstructing 
process; Withholding of evidence. 
Obstructing mails. Federal offense consisting of inter
fering with the mails. 18 U.S.C.A. § 1701. 
Obstructing proceedings of legislature. The term em
braces not only things done in the presence of the 
legislature, but those done in disobedience of a commit
tee.

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OBSTRUCTING PROCESS 
Obstructing process. In criminal law, the act by which 
one or more persons attempt to prevent or do prevent 
the execution of lawful process. Obstructing legal pro
cess or official duty is knowingly and willfully obstruct
ing, resisting or opposing any person authorized by law 
to serve process or order of a court, or in the discharge 
of any official duty. See e.g. 18 U.S.C.A. § 1501 et seq. 
See also Obstructing justice. 
Obstruction. A hindrance, obstacle, or barrier. Delay, 
impeding or hindering. See also Obstruct. 
Obstruction to navigation. Any unnecessary interfer
ence with the free movements of vessels. 
Obtain. To get hold of by effort; to get possession of; to 
procure; to acquire, in any way. State v. Bowdry, 346 
Mo. 1090, 145 S.W.2d 127, 129. See also False pretenses. 
Obtaining money or property by false pretenses. See 
False pretenses. 
Obtemperandum est consuetudini rationabili tan
quam legi I�btemp�nend�m est konsw�t(y)uwd�nay rre
sh(iy)�neyb�lay trenkw�m liyjay I. A reasonable custom 
is to be obeyed as a law. 
Obtest I �btestl. To protest. 
Obtulit se I obt�bt siy I. Offered himself. In old English 
practice, the emphatic words of entry on the record 
where one party offered himself in court against the 
other, and the latter did not appear. 
Ob turpem causam I ob t�rp�m koz�m/. For an immor
al consideration. 
Obventio I�bvensh(iy)ow/. Lat. (From obvenire, to fall 
in.) In the civil law, rent; profits; income; the return 
from an investment or thing owned; as the earnings of a 
vessel. Generally used in the plural. 
In old English law, the revenue of a spiritual living, so 
called. Also, in the plural, "offerings." 
Obvention I �bvensh�n/. See Oblation; Obventio. 
Obvious. Easily discovered, seen, or understood; readily 
perceived by the eye or the intellect; plain; patent; 
apparent; evident; clear; manifest. 
Whether a patent is "obvious" must be determined by 
considering the scope and content of the prior art, the 
differences between the prior art and the claims at issue 
and the level of ordinary skill in the pertinent art. 
Milgo Electronic Corp. v. United Business Communica
tions, Inc., C.A.Kan., 623 F.2d 645, 654. 
Obvious danger. Apparent in exercise of ordinary ob
servation and disclosed by use of eyes and other senses. 
Plain and apparent to a reasonably observant person. 
Obvious risk. One so plain that it would be instantly 
recognized by a person of ordinary intelligence. Within 
an accident policy, one which would be plain and appar
ent to a reasonably prudent and cautious person in the 
use of his faculties. It does not mean an unnecessary 
risk. See Assumption of risk. 
O.C. An abbreviation, in the civil law, for "ope consilio" 
(q.v.). In American law, these letters are used as an 
abbreviation for "Orphans' Court." 
1078 
Ocasion / okasyown/. In Spanish law, event. 
Occasio I�keyzh(iy)ow/. In feudal law, a tribute which 
the lord imposed on his vassals or tenants for his neces
sity. Hindrance; trouble; vexation by suit. 
Occasion, n. That which provides an opportunity for 
the causal agency to act. Meaning not only particular 
time but carrying idea of opportunity, necessity, or need, 
or even cause in a limited sense. Condition of affairs; 
juncture entailing need; exigency; or juncture affording 
ground or reason for something. 
Occasion, v. To cause or bring about by furnishing the 
condition or opportunity for the action of some other 
cause. Smart v. Raymond, Mo.App., 142 S.W.2d 100, 
104. To give occasion to, to produce; to cause inciden
tally or indirectly; bring about or be the means of 
bringing about or producing. 
Occasionari I�keyzh(iy)�neray/. To be charged or load
ed with payments or occasional penalties. 
Occupancy. Taking possession of property and use of 
the same; said e.g. of a tenant's use of leased premises. 
Period during which person owns, rents, or otherwise 
occupies real property or premises. Occupancy is a 
mode of acquiring property by which a thing which 
belongs to nobody becomes the property of the person 
who took possession of it with the intention of acquiring 
a right of ownership in it. The taking possession of 
things which before belonged to nobody, with an inten
tion of appropriating them to one's own use. To consti
tute occupancy, there must be a taking of a thing 
corporeal, belonging to nobody, with an intention to 
becoming the owner of it. See also Occupant; Occupa
tion; Possession. 
Term also refers to the constitutional concept of "oc
cupancy of the field" when the federal government has 
so claimed for its jurisdiction a particular sphere that 
state action is no longer allowed; e.g. sedition and espio
nage laws. See Preemption. 
In international law, the taking possession of a newly 
discovered or conquered country with the intention of 
holding and ruling it. 
See also Adverse possession; Certificate of occupancy; 
Occupant; Occupation; Occupy; Possession. 
Occupant. Person in possession. Person having posses
sory rights, who can control what goes on on premises. 
One who has actual use, possession or control of a thing. 
Redevelopment Authority of Allegheny County v. Step
anik, 25 Pa.Cmwlth. 180, 360 A.2d 300, 302. One who 
takes the first possession of a thing of which there is no 
owner. One who occupies and takes possession. Person 
who acquires title by occupancy. See also Occupancy; 
Occupation; Possession. 
Common occupant. See General occupant, below. 
General occupant. At common law where a man was 
tenant pur autre vie, or had an estate granted to himself 
only (without mentioning his heirs) for the life of anoth
er man, and died without alienation during the life of 
cestui que vie, or him by whose life it was holden, he

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1079 
that could first enter on the land might lawfully retain 
the possession, so long as cestui que vie lived, by right of 
occupancy, and was hence termed a "general" or com
mon "occupant." 
Special occupant. A person having a special right to 
enter upon and occupy lands granted pur autre vie, on 
the death of the tenant, and during the life of cestui que 
vie. 
Occupantis fiunt derelicta /oky;}prent;}s fay;}nt 
dehr;}likt;}/. Things abandoned become the property of 
the (first) occupant. 
Occupare /oky;}periy/. Lat. In the civil law, to seize or 
take possession of; to enter upon a vacant possession; to 
take possession before another. 
Occupatile / 6ky;}p;}blyl/. That which has been left by 
the right owner, and is now possessed by another. 
Occupation. Possession; control; tenure; use. The act 
or process by which real property is possessed and 
enjoyed. Where a person exercises physical control over 
land. 
That which principally takes up one's time, thought, 
and energies, especially, one's regular business or em
ployment; also, whatever one follows as the means of 
making a livelihood. Particular business, profession, 
trade, or calling which engages individual's time and 
efforts; employment in which one regularly engages or 
vocation of his life. 
Actual occupation. An open, visible occupancy as distin
guished from the constructive one which follows the 
legal title. See also Adverse possession. 
Occupational. Of or pertaining to an occupation, trade 
or work. 
Occupational disease. A disease (as black lung disease 
incurred by miners) resulting from exposure during em
ployment to conditions or substances detrimental to 
health. Impairment of health not caused by accident 
but by exposure to conditions incidental to and arising 
out of or in the course of one's employment. Such 
disease may be found if there is substantial evidence 
that either employment conditions specifically affected 
the employee in a matter resulting in contraction of 
disease, or employment conditions generally tend, to a 
reasonable medical probability, to cause a particular 
disease or condition in a given class of workers. Dealers 
Transport Co. v. Thompson, Ky.App., 593 S.W.2d 84, 88. 
A disease is compensable under workers' compensa
tion statute as being an "occupational" disease where: 
(1) the disease is contracted in the course of employ
ment; (2) the disease is peculiar to the claimant's em
ployment by its causes and the characteristics of its 
manifestation or the conditions of employment result in 
a hazard which distinguishes the employment in charac
ter from employment generally; and (3) the employment 
creates a risk of contracting the disease in a greater 
degree and in a different manner than in the public 
generally. State ex reI. Ohio Bell Tel. Co. v. Krise, 42 
Ohio St.2d 247, 327 N.E.2d 756, 758, 71 O.O.2d 226. 
OCCUPYING CLAIMANT ACTS 
Compensation for such is provided by state workers' 
compensation acts and such federal acts as the Black 
Lung Benefits Act. 
Occupational hazard. A risk of accident or disease 
which is peculiar to a particular calling or occupation. 
See also Injurious exposure. 
Occupational Safety and Health Act. Federal law 
(1970) administered by the Occupational Safety and 
Health Administration enacted to reduce the incidence 
of personal injuries, illnesses, and deaths among work
ing men and women in the U nited States which result 
from their employment. 29 U.S.C.A. § 651 et seq. 
Occupational Safety and Health Administration. 
Federal agency, established pursuant to the Occupation
al Safety and Health Act of 1970, to develop and promul
gate occupational safety and health standards; develop 
and issue regulations; . conduct investigations and in
spections to determine the status of compliance with 
safety and health standards and regulations; and issue 
citations and propose penalties for noncompliance with 
safety and health standards and regulations. 
Occupational Safety and Health Review Commis
sion. An independent federal adjudicatory agency es
tablished by the Occupational Safety and 'Health Act to 
adjudicate enforcement actions initiated under the Act 
when they are contested by employers, employees, or 
representatives of employees. 29 U.S.C.A. § 66l. 
Occupation tax. A tax imposed upon an occupation or 
the prosecution of a business, trade, or profession; not a 
tax on property, or even the capital employed in the 
business, but an excise tax on the business itself; to be 
distinguished from a "license tax," which is a fee or 
exaction for the privilege of engaging in the business, 
not for its prosecution. An occupation tax is form of 
excise tax imposed upon persons for privilege of carrying 
on business, trade or occupation. 
Occupative. Pertaining to or involving occupation or 
the right of occupation. 
Occupavit /oky;}peyv;}t/. Lat. In old English law, a 
writ that lay for one who was ejected out of his land or 
tenement in time of war. 
Occupier. An occupant; one who is in the enjoyment of 
a thing. 
Occupy. To take or enter upon possession of; to hold 
possession of; to hold or keep for use; to possess; to 
tenant; to do business in; to take or hold possession. 
Actual use, possession, and cultivation. See Occupancy; 
Occupant; Occupation; Possession. 
Occupying claimant. An occupant claiming right un
der statute to recover for improvements he has placed 
on the land subsequently found not to be his. See 
Occupying Claimant Acts. 
Occupying Claimant Acts. Statutes providing for the 
reimbursement of a bona fide occupant and claimant of 
land, on its recovery by the true owner, to the extent to 
which lasting improvements made by him have in-

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OCCUPYING CLAIMANT ACTS 
creased the value of the land, and generally giving him 
a lien therefor. 
Occur. To happen; to meet one's eye; to be found or 
met with; to present itself; to appear; hence, to befall 
in due course; to take place; to arise. 
Occurrence. A coming or happening. Any incident or 
event, especially one that happens without being de
signed or expected (from e.g. standpoint of insured). 
Farmers & Merchants Nat. Bank v. Arrington, Tex.Civ. 
App., 98 S.W.2d 378, 382. Within meaning of insurance 
provision requiring notice of a reportable occurrence to 
insurer as soon as practicable, "occurrence" means inci
dent which was sufficiently serious to lead a person of 
ordinary intelligence and prudence to believe that it 
might give rise to a claim for damages covered by policy. 
Starks v. North East Ins. Co., D.C.App., 408 A.2d 980, 
983. See also Accident; Act of God; Event. 
Ocean. The main or open sea; the high sea; that 
portion of the sea which does not lie within the body of 
any country and is not subject to the territorial jurisdic
tion or control of any country, but is open, free, and 
common to the use of all nations. U. S. v. Rodgers, 150 
U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071. Body of salt water 
that covers over 70% of earth's surface. 
Ochlocracy /okI6kr�siy/. Government by the multi
tude. A form of government wherein the populace has 
the whole power and administration in its own hands. 
The abuse of a democracy. 
Octo tales /6ktow teyl(iy)z/. Lat. Eight such; eight 
such men; eight such jurors. The name of a writ, at 
common law, which issues when upon a trial at bar, 
eight more jurors are necessary to fill the panel, com
manding the sheriff to summon the requisite number. 
Octroi /6ktroy/oktrwa/. Fr. In French law, originally, a 
toll or duty, which, by the permission of the seigneur, 
any city was accustomed to collect on liquors and some 
other goods, brought within its precincts, for the con
sumption of the inhabitants. Afterwards appropriated 
to the use of the king. 
Oculist / 6ky�l�st/ . A duly licensed physician specializ
ing in the diseases of the eye. See Ophthalmologist. 
Odal /6wd�I/. Complete property, as opposed to feudal 
tenure. Blackstone notes the relation of this word to 
"allodial". 
Odal right / 6wd�1 rayt/. An allodial right. 
Odd lot. An amount of stock less than the established 
100-share unit or 10-share unit of trading: from 1 to 99 
shares for the great majority of issues, 1 to 9 for so
called inactive stocks. Compare Round lot. 
Odd lot doctrine. Doctrine which permits finding of 
total disability where claimant is not altogether incapac
itated for any kind of work but is nevertheless so handi
capped that he will not be able to obtain regular employ
ment in any well-known branch of the competitive labor 
market absent superhuman efforts, sympathetic friends 
or employers, a business boom, or temporary good luck. 
Vester v. Diamond Lumber Co., 21 Or.App. 587, 535 P.2d 
1080 
1373, 1376. Under the "odd-lot doctrine", worker's com
pensation claimant will be considered to be totally dis
abled if it appears probable that claimant cannot sell his 
services in a competitive labor market. Hill v. U. S. 
Plywood-Champion Co., 12 Or.App. 1, 503 P.2d 728, 730. 
Odd lot order. Order for less than 100 shares of stock. 
Oderunt peccare boni, virtutis amore; oderunt pec
care mali, formidine prenre / owdir�nt p�keriy b6wnay 
v�rt(y)uwt�s �m6riy; owdir�nt p�keriy m,i!lay formid�niy 
piyniy / . Good men hate to sin through love of virtue; 
bad men, through fear of punishment. 
Odio et atia /6wd(i)yow et eysh(iy)�/. See De odio et atia. 
Odiosa et inhonesta non sunt in lege prresumenda 
/ owdiy6ws� et in(h)�nest� n6n s�nt in liyjiy 
prez(y)�mend�/. Odius and dishonest acts are not pre
sumed in law. 
Odiosa non prresumuntur / owdiy6ws� non pre
z(y)�m�nt�r/. Odius things are not presumed. 
Odious / 6wd(i)y�s/ . Synonymous with infamous; hate
ful; repugnant. 
Odium / 6wdiy�m/ . Condition or fact of being subjected 
to hatred and dislike. In venue statute, it implies such 
a general ill-feeling toward a party to an action as will 
render it uncertain whether the cause can be tried by 
impartial triers, free from an atmosphere impregnated 
with malice or corrupting prejudices. 
CEconomicus liyk�n6m�k�s/. L. Lat. In old English 
law, the executor of a last will and testament. 
CEconomus /iyk6n�m�s/. Lat. In the civil law, a man
ager or administrator. 
Of. A term denoting that from which anything proceeds; 
indicating origin, source, descent, and the like; as, he is 
of noble blood. Associated with or connected with, 
usually in some causal relation, efficient, material, for
mal, or final. The word has been held equivalent to 
after; at, or belonging to; in possession of; manufac
tured by; residing at; from. 
Of age. See Legal age; Majority. 
Of counsel. A phrase commonly applied in practice to 
the counsel employed by a party in a cause, and particu
larly to one employed to assist in the preparation or 
management of an action, or its presentation on appeal, 
but who is not the principal attorney of record for the 
party. United States attorney is "of counsel" to United 
States in all criminal prosecutions brought within his 
district, for purposes of mandatory judicial disqualifica
tion statute requiring judge to disqualify himself in any 
case in which he has been of counsel. Barry v. U.S., 
C.A.Ill., 528 F.2d 1094, 1098. 
Term is also used to refer to retired or semi-retired 
member of a law firm, or outside attorney. that only does 
occasional or special legal work for the firm. 
Of course. As a matter of right. Jones v. McGonigle, 
327 Mo. 457, 37 S.W.2d 892. Any action or step taken in 
the course of judicial proceedings which will be allowed 
by the court upon mere application, without any request

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or contest, or which may be effectually taken without 
having to apply to the court for leave to take such 
action; e.g. Fed.R. Civil P. 15(a) permits a party to 
amend his pleadings once as a matter "of course" at any 
time before a responsive pleading is served. 
Off-board. This term may refer to transactions over-the
counter in unlisted securities, or to a transaction involv
ing listed shares which was not executed on a national 
securities exchange. 
Offender. Commonly used in statutes to indicate person 
implicated in the commission of a crime and includes 
person guilty of a misdemeanor or traffic offense. State 
ex reI. Smith v. Jameson, 70 S.D. 503, 19 N.W.2d 505, 
508. 
Offense. A felony or misdemeanor; a breach of the 
criminal laws; violation of law for which penalty is 
prescribed. The word "offense," while sometimes used 
in various senses, generally implies a felony or a misde
meanor infringing public as distinguished from mere 
private rights, and punishable under the criminal laws, 
though it may also include the violation of a criminal 
statute for which the remedy is merely a civil suit to 
recover the penalty. An act clearly prohibited by the 
lawful authority of the state, providing notice through 
published laws. State v. Sykes, Fla., 434 So.2d 325, 328. 
Criminal offenses may be classified into general cate
gories as felonies and misdemeanors and as offenses 
against the person (e.g. murder, manslaughter), against 
habitation and occupancy (e.g. burglary, arson), against 
property (e.g. larceny), against morality and decency (e.g. 
adultery), against public peace, against government (e.g. 
treason). See e.g. 18 V.S.C.A. § 1. Also, for sentencing 
purposes, offenses may be classified by letter grades, as 
e.g. class A, B, C, etc. felonies or misdemeanors. See e.g. 
18 V.S.C.A. § 3559. 
See also Antici patory offense; Civil offense; Continuing 
offense; Crime; Degrees of crime; Delict; Felony; Grad
ed offense; Included offense; Index offenses; Joint of
fense; Lesser included offense; Misdemeanor; Multiple 
offenses; Petty offense; Same offense; Tort. 
Continuing offense. A transaction or a series of acts set 
on foot by a single impulse, and operated by an uninter
mittent force, no matter how long a time it may occupy. 
Conspiracy is an example of a continuing offense. See 
e.g. 18 V.S.C.A. § 3237; 21 V.S.C.A. § 848. 
Criminal offense. Includes misdemeanors as well as 
felonies. It is an offense which subjects the offender to 
imprisonment, and/or fine. See Crime; Degrees of 
crime; Felony; Misdemeanor. 
Joinder of offenses. See Joinder. 
Same offense. As used in a provision against double 
jeopardy, the term means the same crime, not the same 
transaction, acts, circumstances, or situation. 
Second offense. One committed after conviction for a 
first offense. It is the previous conviction, and not the 
indictment, which is the basis of the charge of a second 
offense. People v. Boardman, 172 App.Div. 733, 159 
N.Y.S. 577. 
OFFER 
Offensive. In the law relating to nuisances and similar 
matters, this term means noxious, causing annoyance, 
discomfort, or painful or disagreeable sensations. In 
ordinary use, the term is synonymous with "obnoxious" 
and means objectionable, disagreeable, displeasing and 
distasteful. 
Offensive and defensive league. In international law, 
a league binding the contracting powers not only to aid 
each other in case of aggression upon either of them by 
a third power, but also to support and aid each other in 
active and aggressive measures against a power with 
which either of them may engage in war. 
Offensive language. Language adapted to give offense; 
displeasing or annoying language. See Defamation; li
bel; Slander. 
Offensive weapon. As occasionally used in criminal 
law and statutes, a weapon primarily meant and adapt
ed for attack and the infliction of injury, but practically 
the term includes anything that would come within the 
description of a "deadly" or "dangerous" weapon (q.v.). 
Offer, v. To bring to or before; to present for acceptance 
or rejection; to hold out or proffer; to make a proposal 
to; to exhibit something that may be taken or received 
or not. To attempt or endeavor; to make an effort to 
effect some object, as, to offer to bribe; in this sense 
used principally in criminal law. 
In trial practice, to "offer" evidence is to state its 
nature and purport, or to recite what is expected to be 
proved by a given witness or document, and demand its 
admission. See Offer of proof. 
Offer, n. A proposal to do a thing or pay an amount, 
usually accompanied by an expected acceptance, coun
ter-offer, return promise or act. A manifestation of 
willingness to enter into a bargain, so made as to justify 
another person in understanding that his assent to that 
bargain is invited and will conclude it. Restatement, 
Second, Contracts, § 24. A promise; a commitment to 
do or refrain from doing some specified thing in the 
future. An act on the part of one person whereby that 
person gives to another the legal power of creating the 
obligation called contract. McCarty v. Verson Allsteel 
Press Co., 44 Ul.Dec. 570, 576, 89 Ill.App.3d 498, 411 
N.E.2d 936, 942. The offer creates a power of accept
ance permitting the offeree by accepting the offer to 
transform the offeror's promise into a contractual obli
gation. See also Offer and acceptance. 
An attempt; endeavor. 
With respect to securities, the price at which a person 
is ready to sell. Opposed to bid, the price at which one 
is ready to buy. See also Offering. 
See also Bid; Counteroffer; Firm offer; Issue; Offer and 
acceptance; Offer of proof; Promise; Proposal; Tender; 
Utter. 
Irrevocable offer. One which may not be withdrawn 
after it has been communicated without the consent of 
the offeree. 
Public exchange offer. A technique by which an aggres
sor corporation seeks to obtain control over a target

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OFFER 
corporation by offering to exchange a package of its 
securities for the target corporation's voting shares. 
Usually, a specified number of target corporation shares 
must be presented for exchange before the exchange will 
take place. 
Offer and acceptance. In a bilateral contract, the two 
elements which constitute mutual assent, a requirement 
of the contract. In a unilateral contract, the acceptance 
is generally the act or performance of the offeree, 
though, in most jurisdictions, a promise to perform is 
inferred if the offeree commences the undertaking and 
the offeror attempts to revoke before the offeree has had 
an opportunity to complete the act. See also Offer; 
Parol evidence rule. 
Offeree. In contracts, the person to whom an offer is 
made by the offeror. 
Offering. An issue of securities offered for sale to the 
public or private group. Securities offerings are gener
ally of two types: primary (proceeds going to the compa
ny for some lawful purpose) and secondary (where the 
funds go to a person other than the company; i.e., 
selling stockholders). Primary offerings are also termed 
"new issues" as they involve the issuance of securities 
not previously offered and sold. See also Issue; Letter of 
comment; Prospectus; Red herring; Registration state
ment; Secondary distribution; Secondary offering; Tomb
stone ad; Underwrite. 
Interstate offerings. A public securities offering made or 
which may be made to residents of more than one state. 
Such offerings are regulated by federal securities laws 
and regulations. 
Intrastate offerings. A restricted public securities offer
ing which is made by an issuer organized under the laws 
of a state, doing its principal business in such state, and 
offered solely to bona fide residents of such state with 
substantially all of the proceeds of the offering remain
ing in the state. 
Private offerings. An offering made to a limited number 
of persons, who are so well-informed concerning the 
affairs of a company, through the possession of informa
tion which would be found in a registration statement, 
that they do not require the protection afforded by the 
disclosure provisions of the Securities Act of 1933. Sale 
of unregistered stock which is exempt from securities 
laws. U. S. v. Custer Channel Wing Corp., D.C.Md., 247 
F.Supp. 481, 487. See also Private offering. 
Public offerings. The offering of securities at random 
and in general to anyone who will buy, and whether 
solicited or unsolicited. Sale of stock to the public in 
contrast to a "private" offering or placement. Public 
offerings are generally regulated by federal and state 
laws and regulations. See also Un derwrite. 
Undigested offering. Newly issued shares and bonds 
that remain undistributed because there is insufficient 
public demand at the offer price. See also Un derwrite. 
Offering circular. An offering circular is required to be 
filed with the S.E.C. and distributed with any securities 
offerings. The content of such is similar to the prospec-
1082 
tus (q.v.) and is governed by S.E.C. rules and regulations. 
See also Prospectus. 
Offering price. Per share price at which new or second
ary offering of stock is sold. 
Offerings. In English ecclesiastical law, personal tithes, 
payable by custom to the parson or vicar of a parish, 
either occasionally, as at sacraments, marriages, church
ing of women, burials, etc., or at constant times, as at 
Easter, Christmas, etc. See Oblation; Obventio. 
Offering statement. See Offering circular. 
Offer of compromise. An offer to settle a dispute or 
difference amicably for the purpose of avoiding a lawsuit 
and without admitting liability. A tender or offer to 
settle or compromise a claim. The fact that such offer 
has been made is generally not admissible at the trial of 
the action as an admission of liability. See Fed.Evid. 
Rule 408. 
Offer of judgment. See Judgment. 
Offer of proof. At a trial or hearing, when an objection 
to a question has been sustained, the party aggrieved by 
the ruling may indicate for the record (out of the pres
ence of the jury) the answer which would have been 
given if the question had not been excluded. The appel
late court is then in a position to determine from the 
record the correctness of the ruling and the prejudice in 
its exclusion, if any. See Fed.Evid.Rule 103(a)(2). 
Offeror. In contracts, the party who makes the offer 
and looks for acceptance from the offeree. 
Offertorium / Of�rt6r(i)y�m/ . In English ecclesiastical 
law, the offerings of the faithful, or the place where they 
are made or kept; the service at the time of the Com
munion. 
Office. A right, and correspondent duty, to exercise a 
public trust. A public charge or employment. An em
ployment on behalf of the government in any station or 
public trust, not merely transient, occasional, or inciden
tal. The most frequent occasions to use the word arise 
with reference to a duty and power conferred on an 
individual by the government; and, when this is the 
connection, "public office" is a usual and more discrimi
nating expression. But a power and duty may exist 
without immediate grant from government, and may be 
properly called an "office;" as the office of executor. 
Here the individual acts towards legatees in perform
ance of a duty, and in exercise of a power not derived 
from their consent, but devolved on him by an authority 
which quoad hoc is superior. 
An "assigned duty" or "function." Synonyms are 
"post", "appointment", "situation", "place", "position", 
and "office" commonly suggests a position of (especially 
public) trust or authority. Also right to exercise a 
public function or employment, and to take the fees and 
emoluments belonging to it. A public charge or employ
ment, and he who performs the duties of the office is an 
officer. Although an office is an employment, it does 
not follow that every employment is an office. A man 
may be employed under a contract, express or implied,

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to do an act, or to perform a service, without becoming 
an officer. But, if the duty be a continuing one, which is 
defined by rule prescribed by the government, which an 
individual is appointed by the government to perform, 
who enters upon the duties appertain to his status, 
without any contract defining them, it seems very diffi
cult to distinguish such a charge or employment from an 
office, or the person who performs the duty from an 
officer. In the constitutional sense, the term implies an 
authority to exercise some portion of the sovereign pow
er, either in making, executing, or administering the 
laws. 
A place for the regular transaction of business or 
performance of a particular service. 
As to various particular offices, see Home office; Land 
offices; Public office, etc. 
County office. Public office filled by the electorate of 
the entire county. 
Judicial office. See Judicial. 
Lucrative office. See Lucrative. 
Ministerial office. One which gives the officer little or 
no discretion as to the matter to be done, and requires 
him to obey mandates of a superior. It is a general rule 
that a judicial office cannot be exercised by a deputy, 
while a ministerial office may. See Min isterial. 
Office audit. An audit by the Internal Revenue Service 
of a taxpayer's return which is conducted in the agent's 
office. It may be distinguished from a correspondence 
audit or a field audit. See also Audit. 
Office copy. A copy or transcript of a deed or record or 
any filed document, made by the officer having it in 
custody or under his sanction, and by him sealed or 
certified. 
Office grant. A designation of a conveyance · made by 
some officer of the law to effect certain purposes, where 
the owner is either unwilling or unable to execute the 
requisite deeds to pass the title; such, for example, as a 
tax-deed. 
Office hours. That portion of the day during which 
offices are usually open for the transaction of business. 
Office of honor. See Honor. 
Office of judge. In old English law, a criminal suit in an 
ecclesiastical court, not being directed to the reparation 
of a private injury, was regarded as a proceeding ema
nating from the office of the judge, and could be institut
ed by the mere motion of the judge. But, in practice, 
these suits were instituted by private individuals, with 
the permission of the judge or his surrogate; and the 
private prosecutor in any such case was, accordingly, 
said to "promote the office of the judge." 
Principal office. The principal office of a corporation is 
its headquarters, or the place where the chief or princi
pal affairs and business of the corporation are transact
ed. Usually it is the office where the company's books 
are kept, where its meetings of stockholders are held, 
and where the directors, trustees, or managers assemble 
OFFICER 
to discuss and transact the important general business 
of the company; but no one of these circumstances is a 
controlling test. Synonymous with "principal place of 
business," being the place where the principal affairs of 
a corporation are transacted. 
The office (in or out of the state of incorporation) so 
designated in the annual report where the principal 
executive offices of a domestic or foreign corporation are 
located. Rev.Model Bus.Corp.Act, § 1.40. 
Public office. The right, authority, and duty created 
and conferred by law, by which for a given period, either 
fixed by law or enduring at the pleasure of the creating 
power, an individual is invested with some portion of the 
sovereign functions of government for the benefit of the 
public. An agency for the state, the duties of which 
involve in their performance the exercise of some por
tion of the sovereign power, either great or small. 
State office. Public offices to be filled by the electorate 
of the entire state. 
Office-block ballot. A form of ballot in which the 
names of candidates, with or without party designations, 
are grouped under the offices for which they are contest
ing; also called "Massachusetts" ballot. 
Office of Personnel Management. Created in 1978, 
the Office of Personnel Management is responsible for 
the nationwide recruiting and examining of applicants 
for positions in the Federal civil service. The OPM also 
administers the Qualifications Review Board examining 
process for career Senior Executive Service appoint
ments and examines for administrative law judges. Per
sonnel investigations are used in support of the selection 
and appointment processes. 
Office of Thrift Supervision. An office in the Treasury 
Department charged with providing for the examina
tion, safe and sound operation, and regulation of savings 
associations. 
Officer. Person holding office of trust, command or 
authority in corporation, government, armed services, or 
other institution or organization. 
In corporations, a person charged with important 
functions of management such as president, vice presi
dent, treasurer, etc. 
In determining whether one is an "officer" or "em
ployee," important tests are the tenure by which a 
position is held, whether its duration is defined by the 
statute or ordinance creating it, or whether it is tempo
rary or transient or for a time fixed only by agreement; 
whether it is created by an appointment or election, or 
merely by a contract of employment by which the rights 
of the parties are regulated; whether the compensation 
is by a salary or fees fixed by law, or by a sum agreed 
upon by the contract of hiring. 
For definitions of the various classes and kinds of 
officers, see the titles Commissioned office; Constitution
al; Corporate; Executive; Fiscal; Judicial; Legislative; 
Minis terial; Municipal; Naval; Non-commissioned; Peace; 
Public; State; Subordina te.

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OFFICER 
Civil officer. The word "civil," as regards civil officers, 
is commonly used to distinguish those officers who are 
in public service but not of the military. Hence, any 
officer of the United States who holds his appointment 
under the national government, whether his duties are 
executive or judicial, in the highest or the lowest depart
ments of the government, with the exception of officers 
of the armed services. 
Military officer. Commissioned officer in armed servic
es. Officer who has command in armed forces. 
Officer de facto. As distinguished from an officer de 
jure; this is the designation of one who is in the actual 
possession and administration of the office, under some 
colorable or apparent authority, although his title to the 
same, whether by election or appointment, is in reality 
invalid or at least formally questioned. Norton v. Shel
by County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. One 
who actually assumes and exercises duties of public 
office under color of known and authorized appointment 
or election, but who has failed to comply with all re
quirements of law prescribed as precedent to perform
ance of duties of the office. State v. Whelan, 103 Idaho 
651, 651 P.2d 916, 920. 
Officer de jure. One who is in all respects legally 
appointed and qualified to exercise the office. One who 
is clothed with the full legal right and title to the office; 
he is one who has been legally elected or appointed to an 
office, and who has qualified himself to exercise the 
duties thereof according to the mode prescribed by law. 
Trost v. Tynatishon, 12 Ill.App.3d 406, 299 N.E.2d 14, 
17. 
Officer of justice. A general name applicable to all 
persons connected with the administration of the judi
cial department of government, but commonly used only 
of the class of officers whose duty is to serve the process 
of the courts, such as sheriffs, constables, bailiffs, mar
shals, sequestrators, etc. 
Officer of the United States. An officer nominated by 
the President and confirmed by the senate or one who is 
appointed under an act of congress, by the President 
alone, a court of law, or a head of a department. U. S. 
v. Mouat, 124 U.S. 303, 8 S.Ct. 505, 31 L.Ed. 463. See 
also Un ited States officer. 
Public officer. An officer of a public corporation; that 
is, one holding office under the government of a munici
pality, state, or nation. One occupying a public office 
created by law. One of necessary characteristics of 
"public officer" is that he performs public function for 
public benefit and in so doing he be vested with exercise 
of some sovereign power of state. 
Warrant officer. Officer of armed forces, with rank 
between commissioned and non-commissioned officer, 
holding rank by virtue of warrant. 
Officia judicialia non concedantur antequam vacent 
/ �fish(iy)� j�dishiyeyl(i)y� non kons�drent�r rent�k
w�m veys�nt/. Judicial offices should not be granted 
before they are vacant. 
1084 
Official, n. An officer; a person invested with the au
thority of an office. See also Officer. 
In Canon law, a person to whom a bishop commits the 
charge of his spiritual jurisdiction. 
In Civil law, the minister or apparitor of a magistrate 
or judge. 
Official, adj. Pertaining to an office; invested with the 
character of an officer; proceedmg from, sanctioned by, 
or done by, an officer. Authorized act. 
As to official Bond; liqui dator; Log Book; Newspaper; 
Oath; Use, see those titles. 
Demi-official. Partly official or authorized. Having 
color of official right. 
Official act. One done by an officer in his official 
capacity under color and by virtue of his office. Autho
rized act. 
Official misconduct. Any unlawful behavior by a public 
officer in relation to the duties of his office, willful in its 
character, including any willful or corrupt failure, refus
al, or neglect of an officer to perform any duty enjoined 
on him by law. See Malfeasance; Misfeasance. 
Official bond. Type of fidelity bond required to be 
posted by certain public officials to indemnify the 
government, municipality or court in the event of defal
cation by the officer. 
Official Gazette. Weekly publication of U.S. Patent and 
Trademark Office containing patent and trademark no
tices and applications, as well as mark registrations. 
Official immunity doctrine. Doctrine of "official im
munity" provides that government officials enjoy an 
absolute privilege from civil liability should the activity 
in question fall within the scope of their authority and if 
the action undertaken requires the exercise of discre
tion, and this rule of immunity is not limited to the 
highest executive officers of the government. Watson v. 
Barker, D.C.Pa., 428 F.Supp. 590, 592. See Sovereign 
immu nity. 
Official map. In zoning and land use, the authorized 
map for the determination of proper land use in the city 
or town, showing the zones and areas and their autho
rized uses. 
Official record. Records kept in the performance of 
official duty by an officer even if not specifically re
quired by statute. State v. Biscoe, 112 Ariz. 98, 537 P.2d 
968, 969. 
Fed.Evid.R. 803(8) provides, without regard to avail
ability of the declarant, a hearsay exception for: 
"Records, reports, statements, or data compilations, in 
any form, of public offices or agencies . . ." Proof 
of official records at trial is governed by Fed.R.Civil P. 
44 and Fed.Evid.R. 1005. Admissibility of official 
records at administrative proceedings is governed by the 
Official Records Act (q.v.). 
Official Records Act. Federal statute applicable to 
cases in which the Federal Rules of Evidence do not 
apply (i.e. administrative proceedings) providing that 
books and records of account and minutes of any depart-

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1085 
ment or agency of the U.S. shall be admissible to prove 
the act or transaction as a memorandum of which it was 
made or kept. Properly authenticated copies are equal
ly admissible with the originals. 28 U.S.C.A. § 1733(a). 
Official reports or reporters. Publication of court deci
sions as directed by statute; e.g. United States Supreme 
Court Reports. 28 U.S.C.A. § 411. See Reports or re
porters. 
OfficiaIty. The court or jurisdiction of which an official 
is head. 
Officia magistratus non debent esse vennalia 
l::Ifish(iY)::I mrej::lstreyt::ls non deb::lnt esiy v::lneyl(i)Y::l/. 
The offices of magistrates ought not to be sold. 
Officiariis non faciendis vel amovendis I ::IfishiyeriY::ls 
non fres(h)iyend::ls vel eym::lvend::ls/. A writ addressed to 
the magistrates of a corporation, requiring them not to 
make such a man an officer, or to put one out of the 
office he has, until inquiry is made of his manners, etc. 
Officina justitire I Qf::lsayn::l j�stishiyiy I. The workshop 
or office of justice. The chancery was formerly so 
called. 3 Bl.Comm. 273. 
Officio, ex, oath lowO eks ::Ifish(iy)ow/. An oath where
by a person may be obliged to make any presentment of 
any crime or offense, or to confess or accuse himself of 
any criminal matter or thing whereby he may be liable 
to any censure, penalty, or punishment. 3 Bl.Comm. 
447. 
Officious will I ::Ifish::ls will. A testament by which a 
testator leaves his property to his family. Inofficious 
testament. 
Officit conatus si effectus sequatur I M::Is::lt k::lneyt::ls 
say ::Ifekt::ls s::lkweyt::lr I. The attempt becomes of conse
quence, if the effect follows. 
Of force. In force; extant; not obsolete; existing as a 
binding or obligatory power. 
Offset. A deduction; a counterclaim; a contrary claim 
or demand by which a given claim may be lessened or 
canceled. A claim that serves to counterbalance or to 
compensate for another claim. Steinmeyer v. Warner 
Consolidated Corp., 42 Cal.App.3d 515, 116 Cal.Rptr. 57. 
See also Counterclaim; Recoupment; Set-off. 
Type of entry in bookkeeping which counters the 
effect of a prior entry. See Offset account. 
Offset account. In bookkeeping, a ledger account which 
has a corresponding account to be washed against it 
when the books are closed. 
Offshore transactions. Refers to transactions in loca
tions outside the United States, e.g. 31 CFR § 540.401. 
Off spring. Children; issue. 
Of grace. This phrase had its origin in an age when 
kings dispensed their royal favors at the hands of chan
cellors. A term applied to any permission or license 
granted to a party in the course of a judicial proceeding 
which is not claimable as a matter of course or of right, 
OLIGARCHY 
but is allowed by the favor or indulgence of the court. 
See Act of grace. 
Of record. Recorded; entered on the records; existing 
and remaining in or upon the appropriate records; e.g. a 
mortgage to be "of record" must normally be recorded in 
the county in which it is properly and legally recordable 
for purpose of constructive notice. Riley v. Common
wealth, 275 Ky. 370, 121 S.W.2d 921. See also Attorney 
(Attorney of record); Court (Court of record); Record. 
Of right. As a matter of course. See Of course; Right. 
Of the blood. A technical legal phrase meaning to be 
descended from the person referred to or from the same 
common stock and from a common ancestor. In re 
Easter's Estate, 24 Ca1.2d 191, 148 P.2d 601. See De
scent; Next of kin. 
Oil and gas lease. Grant of right to extract oil and/or 
gas from land. 
O.K. A conventional symbol often used in commercial 
practice and occasionally in indorsements on legal doc
uments, signifying "correct," "approved," "accepted," 
"satisfactory," or "assented to." 
, 
Okay. The colloquial expression means correct, all 
right, to approve, and is of such common usage that it 
immediately conveys to the mind of person to whom it is 
addressed that a proposition submitted is agreed to. 
Muegler v. Crosthwait, 239 Mo.App. 801, 179 S.W.2d 
761, 763. See also O. K. 
Old Age, Survivors' and Disability Insurance. A 
system established under the Federal Social Security 
Act providing for retirement, disability, widows', widow
ers', and dependent benefits. Such program is funded 
by employer, employee and self-employed contributions. 
See Social Security Admin istration. 
Old natura brevium lowld n::ltyur::l briyviY::lm/. The 
title of a treatise written in the reign of Edward III, 
containing the writs which were then most in use, 
annexing to each a short comment concerning their 
nature and the application of them, with their various 
properties and effects. 
Old tenures. A treatise, so called to distinguish it from 
Littleton's book on the same subject, which gives an 
account of the various tenures by which land was hol
den, the nature of estates, and some other incidents to 
landed property in the reign of Edward III. It is a very 
scanty tract, but has the merit of having led the way to 
Littleton's famous work. 
Oleron, Laws of /16z ::IV owl::lron/. A code of maritime 
laws published at the island of Oleron in the twelfth 
century by Eleanor of Guienne. They were adopted in 
England successively under Richard I, Henry III, and 
Edward III, and are often cited before the admiralty 
courts. 
Oligarchy I ol::lgarkiy I. A form of government wherein 
the administration of affairs is lodged in the hands of a 
few persons.

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OLIGOPOLY 
Oligopoly I ol;;,gop;;,liy I. Economic condition where only 
a few companies sell SUbstantially similar or standard
ized products. U.S. v. E.I. DuPont De Nemours & Co., 
D.C.Del., 118 F.Supp. 41, 49. Oligopoly markets often 
exhibit the lack of competition, high prices and low 
output of monopoly markets. Harkins Amusement En
terprises, Inc. v. General Cinema Corp., C.A.Ariz., 850 
F.2d 477, 490. See also Conscientious parallelism; Mo
nopoly. 
Olograph I obgr,H/ . An instrument (e.g., a will) wholly 
written by the person from whom it emanates. See 
Holograph. 
Ombudsman I omb;;,dzm:m/. An official or semi official 
office or person to which people may come with griev
ances connected with the government. The ombudsman 
stands between, and represents, the citizen 'before the 
government. 
Ome bueno lowmey bweynow I. In Spanish law, a good 
man; a substantial person. 
Omissio eorum qure tacite insunt nihil operatur 
I;;,mish(iy)ow iyor;;,m kwiy tres;;,tiy ins;}nt nay(h);;,l 
op;;,reyt;;,r/. The omission of those things which are 
tacitly implied is of no consequence. 
Omission. The neglect to perform what the law re
quires. The intentional or unintentional failure to act 
which mayor may not impose criminal liability depend
ing upon the existence, vel non, of a duty to act under 
the circumstances. See also Neglect. 
Omissis omnibus allis negotiis I ;;,mis;;,s omn;;,b;;,s reliy;;,s 
n;;,gowshiy;;,s/. Lat. Laying aside all other businesses. 
Omittance I ;;,mit;;,ns/. Forbearance; omission. 
Omne actum ab intentione agentis est judicandum 
lomniy rekt;;,m reb int€mshiyowniy ;;,jent;;,s est 
juwd;;,krend;;,m/. Every act is to be judged by the inten
tion of the doer. 
Omne crimen ebrietas et incendit et detegit/omniy 
kraym;;,n ;;,bray;;,tres et ;;,nsend;;,t et det;;,j;;,t/. Drunken
ness both inflames (or aggravates) and reveals every 
crime. 
Omne jus aut consensus fecit, aut necessitas consti
tuit aut firmavit consuetudo lomniy j;}S ot k;;,nsens;;,s 
fiys;;,t, ot n;;,ses;;,tres k;;,nstityuw;;,t ot f;;,rmeyv;;,t 
konsw;;,t(y)uwdow/. Every right is either made by con
sent, or is constituted by necessity, or is established by 
custom. 
Omne magis dignum trahit ad se minus dignum, 
quamvis minus dignum sit antiquius lomniy meyj;;,s 
dign;;,m trreh;;,t red siy mayn;;,s dign;;,m, kwremvis mayn;;,s 
dign;;,m sit rentikwiy;;,s/. Every worthier thing draws to 
it the less worthy, though the less worthy be the more 
ancient. 
Omne magnum exemplum habet aliquid ex iniquo, 
quod publica utilitate compensatur lomniy mregn;;,m 
;;,gzempl;;,m heyb;;,t rebkwid eks ;;,naykwow, kwod p;}bl;;,k;;, 
yuwtil;;,teytiy komp;;,nseyt;;,r/. Every great example has 
some portion of evil, which is compensated by the public 
utility. 
1086 
Omne majus continet in se minus lomniy meyj;;,s 
kont;;,n;;,t in siy mayn;;,s/. Every greater contains in 
itself the less. The greater always contains the less. 
Omne majus dignum continet in se minus dignum 
lomniy meyj;;,s dign;;,m kont;;,n;;,t in siy mayn;;,s dign;;,m/. 
The more worthy contains in itself the less worthy. 
Omne majus minus in se complectitur lomniy meyj;;,s 
mayn;;,s in siy k;;,mplekt;;,t;;,r I. Every greater embraces 
in itself the less. 
Omne principale trahit ad se accessorium lomniy 
prins;;,peyliy trreh;;,t red siy reksesoriy;;,m/. Every princi
pal thing draws to itself the accessory. 
Omne quod solo inredificatur solo cedit lomniy kwod 
sowlow ined;;,f;;,keyt;;,r sowlow siyd;;,t/. Everything which 
is built upon the soil belongs to the soil. 
Omne sacramentum debet esse de certa scientia lom
niy srekr;;,ment;;,m deb;;,t esiy diy s;}rt;;, sayensh(iy);;,/. Ev
ery oath ought to be of certain knowledge. 
Omnes actiones in Mundo infra certa tempora ha
bent limitationem lomniyz rekshiyowniyz in m;}ndow 
infra S;}rt;;, temp;;,r;;, heyb;;,nt lim;;,teyshiyown;;,m/. All 
actions in the world are limited within certain pe,riods. 
Omnes homines aut liberi sunt aut servi lomniyz 
hom;;,niyz ot lib;;,ray s;}nt ot s;}rvay I. All men are free
men or slaves. 
Omnes licentiam habere his qure pro se indulta sunt, 
renunciare lomniyz l;;,sensh(iy);;,m h;;,biriy his kwiy 
prow siy ind;}1t;;, s;}nt r;;,n;}nshiyeriy/. [It is a rule of the 
ancient law that] all persons shall have liberty to re
nounce those privileges which have been conferred for 
their benefit. 
Omnes prudentes illa admittere solent qure proban
tur iis qui arte sua bene versati sunt lomniyz 
pruwdentiyz ila ;;,dmit;;,riy sowl;;,nt kwiy pr;;,brent;;,r ay;;,s 
kway artiy s(y)uw;;, biyniy v;;,rseytay s;}nt/. All prudent 
men are accustomed to admit those things which are 
approved by those who are well versed in the art. 
Omnes sorores sunt quasi unus hreres de una hreredi
tate lomniyz s;;,roriyz s;}nt kweysay yuwn;;,s hiriyz diy 
yuwn;;, h;;,red;;,teytiy I. All sisters are, as it were, one 
heir to one inheritance. 
Omne testamentum morte consummatum est lomniy 
test;;,ment;;,m mortiy kons;;,meyt;;,m est/. Every will is 
completed by death. 
Omnia delicta in aperto leviora sunt lomniy;;, d;;,likt;;, 
in ;;'P;}rtow leviyor;;, s;}nt/. All crimes that are commit
ted openly are lighter [or have a less odious appearance 
than those committed secretly]. 
Omnia performavit lomniy;;, p;}rformeyv;;,t/. He has 
done all. In pleading. A good plea in bar where all the 
covenants are in the affirmative. 
Omnia prresumuntur contra spoliatorem lomniy;;, 
priyz(y)�m;}nt;;,r kontr;;, spowl(i)y;;,tor;;,m/. All things are 
presumed against a despoiler or wrongdoer.

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1087 
Omnia prresumuntur legitime facta donec probetur 
in contrarium /omniy� priyz(y)�m:}nt�r bjit�miy frekt� 
downek prowbiyt�r in k�ntreriy�m/. All things are 
presumed to be lawfully done, until proof be made to the 
contrary. 
Omnia prresumuntur rite et solemniter esse acta do
nec probetur in contrarium / omniy� priyz(y)�m:}nt:;)r 
raytiy et s�lemn�t�r esiy rekt:;) down�k pr�biyt:;)r in 
k�ntreriy:;)m/ . All things are presumed to have been 
rightly and duly performed until it is proved to the 
contrary. 
Omnia prresumuntur solemniter esse acta / omniy� 
priyz(y)�m:}nt�r s:;)lemn:;)t�r esiy rekt�/. All things are 
presumed to have been done rightly. 
Omnia presumuntur rite esse acta /omniy:;) priyz(y):;)
m:}nt�r raytiy esiy rekt�/. A prima facie presumption of 
the regularity of the acts of public officers exists until 
the contrary appears. 
Omnia qure jure contrahuntur contrario jure pereunt 
/ omniy� kwiy juriy kontr:;)h:}nt�r k�ntreriyow juriy peh
riy:;)nt/. All things which are contracted by law perish 
by a contrary law. 
Omnia qure sunt uxoris sunt ipsius viri lomniy:;) kwiy 
s:}nt :;)ksor:;)s sant ipsay:;)s viray /. All things which are 
the wife's are the husband's. 
Omnia rite acta prresumuntur /omniy:;) raytiy rekt:;) 
priyz(y)�m:}nt�r/. All things are presumed to have been 
rightly done. 
Omnibus /omn:;)b:;)s/. For all; containing two or more 
independent matters. Applied most commonly to a leg
islative bill which comprises more than one general 
subject. See Omnibus bill. 
Omnibus ad quos prresentes literre pervenerint, salu
tem /omn:;)b:;)s ,M kwows pr:;)zentiyz lit:;)riy p:;)rven:;)r:;)nt 
s:;)l(y)uwt�m/. To all to whom the present letters shall 
come, greeting. A form of address with which charters 
and deeds were anciently commenced. 
Omnibus bill /omn:;)b:;)s bill. A legislative bill including 
in one act various separate and distinct matters, and 
frequently one joining a number of different subjects in 
one measure in such a way as to compel the executive 
authority to accept provisions which he does not approve 
or else defeat the whole enactment. 
In equity pleading, a bill embracing the whole of a 
complex subject-matter by uniting all parties in interest 
having adverse or conflicting claims, thereby avoiding 
circuity or multiplicity of action. 
Omnibus clause. Clause in a will or decree of distribu
tion passing all property not specifically mentioned or 
known of at the time. 
Such a clause in automotive liability policy extends 
coverage thereunder to person using automobile owned 
by named insured with express or implied permission of 
the latter. Uber v. Ohio Cas. Ins. Co., 247 CaLApp.2d 
611, 55 CaLRptr. 720, 724. 
OMNIBUS HEARING 
Omnibus hearing. Hearing at which there are many 
unrelated matters on the agenda for discussion and 
consideration. 
Omni exceptione majus lomnay :;)ksepshiyownay 
meyj:;)s/ . Above all exception. 
Omnis actio est loquela /omn:;)s reksh(iy)ow est 
lowkwiyl:;)/. Every action is a plaint or complaint. 
Omnis conclusio boni et veri judicii sequitur ex bon
is et veris prremissis et dictis juratorum /omn:;)s 
bnkluwzh(iy)ow bownay et viray j:;)dishiyay sekw:;)t:;)r 
eks bown:;)s et vir:;)s pr:;)mis:;)s et dikt:;)s jur:;)tor:;)m/. Ev
ery conclusion of a good and true judgment follows from 
good and true premises, and the verdicts of jurors. 
Omnis consensus tollit errorem lomn:;)s k:;)nsens:;)s tol:;)t 
ehror:;)m/. Every consent removes error. Consent al
ways removes the effect of error. 
Omnis definitio in jure civili periculosa est, parum 
est enim ut non subverti possit /omn�s def:;)nish(iy)ow 
in juriy siv:;)lay p:;)riky�lows:;) est, prer:;)m est en:;)m at non 
s:;)bv:}rtay pos�t/. Every definition in the civil law is 
dangerous, for there is very little that cannot be over
thrown. (There is no rule in the civil law which is not 
liable to some exception; and the least difference in the 
facts of the case renders its application useless.) 
Omnis definitio in lege periculosa /omn:;)s def:;)ni
sh(iy)ow in liyjiy p�riky:;)lows:;)/. All definition in law is 
hazardous. 
Omnis exceptio est ipsa quoque regula /omn:;)s :;)ksep
sh(iy)ow est ips:;) kwowkwiy regy:;)l:;)/. Every exception is 
itself also a rule. 
Omnis indemnatus pro innoxis legibus habetur 
/omn:;)s indemneyt:;)s prow :;)noks:;)s liyj:;)b:;)s h:;)biyt:;)r I. 
Every uncondemned person is held by the law as inno
cent. 
Omnis innovatio plus novitate perturbat quam uItili
tate prodest lomn:;)s in�veysh(iy)ow pl:}s nowv:;)teytiy 
p:;)rt:}rb:;)t kwrem yuwtil:;)teytiy prowdestl. Every innova
tion occasions more harm by its novelty than benefit by 
its utility. 
Omnis interpretatio si fieri potest ita fienda est in 
instrumentis, ut omnes contrarietates amoveantur 
lomn:;)s :;)ntarpr:;)teysh(iy)ow, say fay:;)ray powt:;)st ayt:;) 
fayend:;) est in instr:;)ment:;)s, at omniyz k:;)ntreriy:;)teytiyz 
:;)mowviyrent:;)r/. Every interpretation, if it can be done, 
is to be so made in instruments that all contradictions 
may be removed. 
Omnis interpretatio vel declarat, vel extendit, vel 
restringit /omn:;)s :;)ntarpr:;)teysh(iy)ow vel d:;)kler:;)t, vel 
:;)kstend:;)t, vel r:;)strinj:;)t1. Every interpretation either 
declares, extends, or restrains. 
Omnis nova constitutio futuris formam imponere de
bet, non prreteritis /omn:;)s nowv:;) konst:;)t(y)uwsh(iy)ow 
fy:;)tyur:;)s form:;)m impown:;)riy deb:;)t, non pr:;)teh
r:;)t:;)s/. Every new statute ought to prescribe a form to 
future, not to past, acts.

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ON ACCOUNT 
Omnis persona est homo, sed non VlclSSlm / omn�s 
p�rs6wn� est howmow sed non v:lsis:lm/. Every person 
is a man, but not every man a person. 
Omnis privatio prresupponit habitum /omn:ls pr:lvey
sh(iy)ow priys:lpown:lt hreb:lt�m/. Every privation pre
supposes a former enjoyment. A "rule of philosophie" 
quoted by Lord Coke, and applied to the discontinuance 
of an estate. 
Omnis querela et omnis actio injuriarum limita est 
infra certa tempora /omn:ls kW:lriyl:l et omn:ls 
reksh(iy)ow :lnjuriyer�m lim:lt� est infr:l s;}rt:l temp:lr�/. 
Every plaint and every action for injuries is limited 
within certain times. 
Omnis ratihabitio retrotrahitur et mandato priori 
requiparatur /omn:ls rret:lhrebish(iy )ow retrowtrreh�t:lr 
et mrendeydow prayoray ekw:lp:lreyt�r / . Every rat
ification relates back and is equivalent to a prior author
ity. 
Omnis regula suas patitur exceptiones /omn:ls regy:ll:l 
s(y)UW:lS pret�t:lr :lksepshiyowniyz/. Every rule is liable 
to its own exceptions. 
Omnium /omniy �m/. In mercantile law, a term used to 
express the aggregate value of the different stock in 
which a loan is usually funded. 
Omnium contributione sarciatur quod pro omnibus 
datum est /omniY:lm kontr:lbyuwshiyowniy sarshiy
eyt:lr kwod prow omn:lb:ls deyt:lm est!. That which is 
given for, all is recompensed by the contribution of all. 
A principle of the law of general average. 
Omnium rerum quarum usus est, potest esse abusus, 
virtute solo excepta / omniy�m rir�m kwer:lm YUWS:lS 
est, powt:lst esiy :lbyuws�s, v:lrtyuwtiy sowlow �ksepta/. 
There may be an abuse of everything of which there is a 
use, virtue only excepted. 
On. Upon; as soon as; near to; along; along side of; 
adjacent to; contiguous to; at the time of; following 
upon; in; during; at or in contact with upper surface of 
a thing. 
On account. Sale on credit. In part payment; in par
tial satisfaction of an account. The phrase is usually 
contrasted with "in full." See also Account (Open ac
count). 
On account of whom it may concern. When a policy 
of insurance expresses that the insurance is made "on 
account of whom it may concern," it will cover all 
persons having an insurable interest in the subject-mat
ter at the date of the policy and who were then contem
plated by the party procuring the insurance. 
On all fours. A judicial decision exactly in point with 
another as to result, facts, or both. A phrase used to 
express the idea that a particular case in litigation is in 
all points similar to another. The one is said to be on 
all fours with the other when the facts are similar and 
the same questions of law are involved. 
O.N.B. An abbreviation for "Old Natura Brevium." 
1088 
On call. There is no legal difference between an obli
gation payable "when demanded" or "on demand" and 
one payable "on call" or "at any time called for ." In 
each case the debt is payable on demand. . See On 
demand. 
Once a mortgage, always a mortgage. This rule or 
maxim signifies that an instrument originally intended 
as a mortgage, and not a deed, cannot be converted into 
anything else than a mortgage by any subsequent clause 
or agreement. 
Once in jeopardy. A phrase used to express the condi
tion of a person charged with crime, who has once 
already, by legal proceedings, been put in danger of 
conviction and punishment for the same offense. See 
also Jeopardy. 
Oncunne. L. Fr. Accused. 
On default. In case of default; upon failure of stipu
lated action or perf ormance; upon the occurrence of a 
failure, omission, or neglect of duty. 
On demand. Note payable on request. If no due date is 
stated in note, such is payable on demand. Instruments 
payable "on demand" include those payable at sight or 
on presentation and those in which no time for payment 
is stated. U.C.c. § 3-108. 
One person, one vote. Expression used to describe 
state legislative districting which gives equal legislative 
representation to all citizens of all places. The rule was 
established in Reynolds v. Sims, 377 U.S. 533, 568, 84 
S.Ct. 1362, 1385, 12 L.Ed.2d 506, which required that the 
seats in both houses of a bicameral state legislature be 
apportioned on a population basis. Gray v. Sanders, 372 
U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821; Wesberry v. 
Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Baker 
v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. See 
also Apportionment; Reapportionment. 
Onerando pro rata portionis /own:lrrendow prow reyt� 
porshiyown :ls/. A writ that lay for a joint tenant or 
tenant in common who was distrained for more rent 
than his proportion of the land comes to. 
Onerari non /own:lreray non/. In pleading, the name of 
a plea, in an action of debt, by which the defendant says 
that he ought not to be charged. 
Oneratio /own:l reysh(iy)ow/. Lat. A lading; a cargo. 
Oneratur nisi /own:lreyt:lr miysay/. See O.Ni. 
Oneris ferendi / own:lr:ls f�renday /. Lat. In the civil 
law, the servitude of support; a servitude by which the 
wall of a house is required to sustain the wall or beams 
of the adjoining house. 
Onerous / own:lr�s/ . A contract, lease, share, or other 
right is said to be "onerous" when the obligations at
taching to it unreasonably counterbalance or exceed the 
advantage to be derived from it, either absolutely or 
with reference to the particular possessor. Unreason
ably burdensome or one-sided. See Unconscionabil ity. 
As used in the civil law and in the systems derived 
from it (French, Scotch, Spanish, Mexican), the term

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1089 
also means based upon, supported by, or relating to a 
good and valuable consideration, i.e., one which imposes 
a burden or charge in return for the benefit conferred. 
Onerous contract. See Contract. 
Onerous gift. A gift made subject to certain charges 
imposed by the donor on the donee. 
Onerous title. A title acquired by the giving of a valu
able consideration, as the payment of money or rendi
tion of services or the performance of conditions or 
assumption or discharge of liens or charges. 
One sided. See Unconscionabil ity. 
One year. A calendar year, regardless of whether it be a 
leap year or otherwise. Douglas v. Acacia Mut. Life Ins. 
Co., Tex.Civ.App ., 11 8 S.W.2d 643. 
On file. Filed; entered or placed upon the files; existing 
and remaining upon or among the proper files. 
O.Ni. In old English practice it was the course of . the 
exchequer, as soon as the sheriff entered into and made 
up his account for issues, amerciaments, etc., to mark 
upon each head "0. Ni.," which denoted oneratur, nisi 
habeat sufficientem exonerationem, and presently he be
came the king's debtor, and a debet was set upon his 
head; whereupon the parties paravaile became debtors 
to the sheriff, and were discharged against the king, etc. 
Only. Solely; merely; for no other purpose; at no other 
time; in no otherwise; along; of or by itself; without 
anything more; exclusive; nothing else or more. 
Onomastic I on;}mrest;}k/. A term applied to the signa
ture of an instrument, the body of which is in a different 
handwriting from that of the signature. 
On or about. A phrase used in reciting the date of an 
occurrence or conveyance, or the location of it to escape 
the necessity of being bound by the statement of an 
exact date, or place; approximately; about; without 
substantial variance from; near. For purpose of plead
ing, term "on or about," with respect to specified date, 
means generally in time around date specified. Fortner 
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Tex.App. 
5 Dist., 687 S.W.2d 8, 11. 
On or about the person. As used in statutes making it 
an offense to carry a weapon "on or about" the person, it 
is generally held that the word "on" means connected 
with or attached to, and that "about" is a comprehen
sive term having a broader meaning than "on," and 
conveying the idea of being nearby, in close proximity, 
within immediate reach, or conveniently accessible. 
On or before. These words, inserted in a stipulation to 
do an act or pay money, entitle the party stipulating to 
perform at any time before the day; and upon perform
ance, or tender and refusal, he is immediately vested 
with all the rights which· would have attached if per
fo rmance were made on the day. 
On sale. In context of patent law, an invention may be 
placed "on sale" in two ways: first, it may be placed on 
sale by an actual and completed transaction and, alter
natively, an invention is placed "on sale" whenever its 
Black's Law Dictionary 6th Ed.-24 
OPEN 
inventor or his company engages in any activity to sell 
the invention, including making an offer for sale; under 
the first situation, an inventor must construct a physical 
specimen of his invention and deliver it to a third party 
who accepts it. General Motors Corp. v. Toyota Motor 
Co., Ltd., D.C.Ohio, 467 F.Supp. 11 42, 11 65. 
Onset date. A term of art used by the Social Security 
Administration that marks the commencement of a peri
od of disability for purposes of disability payments. 
Michalak v. Weinberger, D.C.Tex., 416 F.Supp. 1213, 
1214. 
On the brief. Phrase which refers to the names of all 
persons who participated in writing the brief, whether 
or not such persons are attorneys of record. 
On the merits. See Merits; Judgment (Merits, judgment 
on). 
On the person. In common parlance, when it is said 
that someone has an article on his person, it means that 
it is either in contact with his person or is carried in his 
clothing. See also On or about. 
Onus I own;}sl. Lat. A burden or load; a weight. Bur
den of responsibility or proof. The lading, burden, or 
cargo of a vessel. A charge; an incumbrance. Cum 
onere (q.v.), with the incumbrance. 
Onus episcopale lown;}s ;}pisk;}peyliy I. Ancient custom
ary payments from the clergy to their diocesan bishop, 
of synodals, pentecostals, etc. 
Onus probandi lown;}s pr;}brenday I. Burden of proving; 
the burden of proof. The strict meaning of the term 
"onus probandi" is that, if no evidence is adduced by the 
party on whom the burden is cast, the issue must be 
found against him. 
OPEC. Organization of Petroleum Exporting Countries. 
Ope consilio lowpiy (at) k;}nsil(i)yow I. Lat. By aid and 
counsel. A civil law term applied to accessaries, similar 
in import to the "aiding and abetting" of the common 
law. Often written "ope et consilio." 
Open, v. To render accessible, visible, or available; to 
submit or subject to examination, inquiry, or review, by 
the removal of restrictions or impediments. 
Open a case. In practice, to open a case is to begin it; to 
make an initiatory explanation (i.e. opening statement) 
of its features to the court, jury, referee, etc., by outlin
ing the nature of the occurrence or transaction on which 
it is fo unded, the questions involved, and the character 
and general course of the evidence to be adduced. See 
also Opening statement of counsel. 
Open a commission. To enter upon the duties under a 
commission, or commence to act under a commission. 
Thus, in England the judges of assize and nisi prius 
derived their authority to act under or by virtue of 
commissions directed to them for that purpose; and, 
when they commenced acting under the powers so com
mitted to them, they were said to open the commissions; 
and the day on which they so commenced their proceed-

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OPEN 
ings was as such termed the "commission day of the 
assizes". 
Open a court. To open a court is to make a formal 
announcement, usually by the crier or bailiff, that its 
session has now begun and that the business before the 
court will be proceeded with. 
Open a judgment. To lift or relax the bar of finality and 
conclusiveness which it imposes so as to permit a re-ex
amination of the merits of the action in which it was 
rendered. This is done at the instance of a party show
ing good cause why the execution of the judgment would 
be inequitable. It so far annuls the judgment as to 
prevent its enforcement until the final determination 
upon it. Fed.R.C ivil P. 60 governs relief from judgment 
because of mistakes, inadvertence, excusable neglect, 
newly discovered evidence, fraud, etc. 
Open a rule. To restore or recall a rule which has been 
made absolute to its conditional state, as a rule nisi, so 
as to readmit of cause being shown against the rule. 
Thus, when a rule to show cause has been made absolute 
under a mistaken impression that no counsel had been 
instructed to show cause against it, it is usual for the 
party at whose instance the rule was obtained to consent 
to have the rule opened, by which all the proceedings 
subsequent to the day when cause ought to have been 
shown against it are in effect nullified, and the rule is 
then argued in the ordinary way. 
Open a street or highway. To establish it by law and 
make it passable and available for public travel. 
Open the door. If one party to litigation puts in evi
dence part of document or correspondence or conversa
tion which is detrimental to the opposing party, the 
latter may introduce balance of document, correspon
dence or conversation in order to explain or rebut ad
verse inferences which might arise from the fragmen
tary or incomplete character of evidence introduced by 
his adversary. This is known as Rule of Completeness. 
U. S. v. Corrigan, C.C.A.N.Y., 168 F.2d 641, 645. See 
also Fed.Evid. R. 106. 
Open, adj. Patent; visible; apparent; notorious; ex
posed to public view; not clandestine; not closed, set
tled, fixed, or terminated. 
As an element of adverse possession, see Open and 
notorious. 
As to open Corporation; Entry; Insolvency; Lewdness; 
Policy; Possession; Verdict, see those titles. 
Open account. An unpaid or unsettled account; an 
account with a balance which has not been ascertained, 
which is kept open in anticipation of future transac
tions. Kugler v. Northwest Aviation, Inc., App., 108 
Idaho 884, 702 P.2d 922, 925. Type of credit extended 
by a seller to buyer which permits buyer to make 
purchases without a note or security and it is based on 
an evaluation of the buyer's credit. A contractual obli
gation which may be modified by subsequent agreement 
of the parties, either by expressed assent or implied 
from the conduct of the parties, provided the agreement 
changing the contractual obligation is based upon inde-
1090 
pendent consideration. Bloch v. Fedak, 210 Kan. 63, 
499 P.2d 1052, 1054. See also Open credit; Open-end 
credit plan. 
Open and notorious. Acts on the land of another 
sufficient to alert the owner of a claim to his land which 
may ripen into title under adverse possession. See also 
Adverse possession; Notorious possession. 
Behavior which is "open and notorious" for purposes 
of statute prohibiting adultery is behavior which is 
prominent, conspicuous and generally known and recog
nized by the public. The prohibition of open and notori
ous adultery is meant to protect the public from conduct 
which disturbs the peace, tends to promote breaches of 
the peace, and openly flouts accepted standards of mo
rality in the community. People v. Cessna, 1 Ill.Dec. 
433, 42 Ill.App.3d 746, 356 N.E.2d 621, 623. 
Open bid. An offer to perform a contract, generally of a 
construction nature, in which the bidder reserves the 
right to reduce his bid to compete with a lower bid. 
Open bulk. In the mass; exposed to view; not tied or 
sealed up. 
Open court. Common law requires a trial in open court; 
"open court" means a court to which the public have a 
right to be admitted. People v. Rose, 82 Misc.2d 429, 
368 N.Y.S.2d 387, 390. This term may mean either a 
court which has been formally convened and declared 
open for the transaction of its proper judicial business, 
or a court which is freely open to spectators. For 
accused's right to an open/public trial, see Public trial. 
Open credit. Line of credit extended up to a certain 
amount by a merchant, bank or supplier so as to permit 
borrowings or purchases to such amount without posting 
security or reestablishing credit limit. See also Open 
account; Open-end credit plan. 
Open-end contract. Contract which permits buyer to 
make purchases over a period of time without change in 
the price or terms by the seller. 
Open-end credit plan. Credit extended pursuant to a 
plan providing for and contemplating continuing or re
petitive transactions on credit. Town & Country Co-op 
v. Lang, N.D., 286 N.W.2d 482, 487. For purposes of 
Truth in Lending Act, "open end credit plan" is one in 
which credit terms are initially established with the 
opening of the account, but no fixed amount of debt is 
incurred at that time with purchases made from time to 
time instead being added to the outstanding balance in 
the account; each new purchase represents an addition
al extension of credit. Goldman v. First Nat. Bank of 
Chicago, C.A.Ill., 532 F.2d 10, 17. Examples are credit 
cards and "revolving charges" where one can pay a part 
of what he owes each month on several different pur
chases. 
Open-end investment company. A mutual fund which 
will buy back its shares at net asset value and which is 
continuously offering to sell new shares to the public. 
See Mutual fund.

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1091 
Open-end investment trust. Type of trust in which the 
trustees are permitted to make on-going investments for 
its portf olio. 
Open-end lease. Lease with no fixed termination date. 
BNO Leasing Corp. v. Hollins & Hollins, Inc., et aI., 
La.App., 448 So.2d 1329, 1333. 
Open-end mortgage. A mortgage that allows the bor
rowing of additional sums, usually providing that at 
least the stated ratio of assets to the debt must be 
maintained. A mortgage which provides for future ad
vances on the given mortgage and increases the amount 
of the existing mortgage. 
Open-end transaction. Generic term to describe a loose 
transaction in which the parties may add to or amend 
the original bargain or agreement. It may include an 
open-end mortgage or open-end credit arrangement. 
Open fields doctrine. This doctrine permits police offi
cers to enter and search a field without a warrant. The 
term "open fields" may include any unoccupied or unde
veloped area outside of the curtilage. Oliver v. U.S., 466 
U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214. See also Dow 
Chemical Co. v. U.S., 476 U.S. 227, 106 S.Ct. 1819, 90 
L.Ed.2d 226, U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 
94 L.Ed.2d 326. 
Opening statement of counsel. Outline or summary of 
nature of case and of anticipated proof presented by 
attorney to jury at start of trial, before any evidence is 
submitted. Speer v. Shipley, 149 Kan. 15, 85 P.2d 999, 
1001. Its purpose is to advise the jury of facts relied 
upon and of issues involved, and to give jury a general 
picture of the facts and the situations so that jury will 
be able to understand the evidence. State v. Erwin, 101 
Utah 365, 120 P.2d 285, 313. Opening statement in 
criminal case is outline of facts which prosecution in 
good faith expects to prove. People v. Roberts, 100 
Ill.App.3d 469, 55 Ill.Dec. 779, 426 N.E.2d 1104, 1109. 
Open letter of credit. An unrestricted letter of credit 
which will be paid on a simple draft without the need of 
documentary title. See also Letter of credit. 
Open listing. A type of real estate listing contract 
whereby any agent who has a right to participate in the 
open listing is entitled to a commission if he produces 
the sale. See also listing. 
Open mortgage clause. See Uni on mortgage clause. 
Open order. An order to buy securities or commodities 
at or below or above a certain price and such order 
remains viable until canceled by the customer. 
Open price term. The parties if they so intend can 
conclude a contract for sale even though the price is not 
settled. In such a case the price is a reasonable price at 
the time for delivery if: (a) nothing is said as to price; or 
(b) the price is left to be agreed by the parties and they 
fail to agree; or (c) the price is to be fixed in terms of 
some agreed market or other standard as set or recorded 
by a third person lor agency and it is not so set or 
recorded. U.C.C. § 2-305. 
OPERATING PROFIT 
Open sea. The expanse and mass of any great body of 
water, as distinguished from its margin or coast, its 
harbors, bays, creeks, inlets. 
Open possession. See Notorious possession; Open and 
notorious. 
Open season. That portion of the year wherein the laws 
for the preservation of game and fish permit the killing 
of a particular species of game or the taking of a 
particular variety of fish. 
Open shop. A business in which union and non-union 
workers are employed indiscriminately. Business in 
which union membership is not a condition of securing 
or maintaining employment. See Right to work laws. 
Contrast Closed shop. 
Open space. Any parcel or area of land or water essen
tially unimproved and set aside, dedicated, designated or 
reserved for public or private use or enjoyment or for 
the use and enjoyment of owners and occupants of land 
adjoining or neighboring such open spaces. 
Common open space. An open space area within or 
related to a site designated as a development and de
signed and intended for the use or enjoyment of resi
dents and owners of the development. Common open 
space may contain such complementary structures and 
improvements as are necessary and appropriate for the 
use or enjoyment of residents and owners of the develop
ment. 
Open trial. See Public trial. 
Open union. A labor union without restrictive member
ship provisions. See also Open shop. 
Operarii / op�reriyay /. Such tenants, under feudal ten
ures, as held some little portions of land by the duty of 
performing bodily labor and servile works for their lord. 
Operate. To perform a function, or operation, or pro
duce an effect. See Operation. 
Operating budget. A collection of individual budgets 
that combine to form a part of a firm's integrated 
business plan, usually for the next year. It is normally 
composed of a sales budget and a production budget. 
Operating expenses. Those expenses required to keep 
the business running, e.g. rent, electricity, heat. Ex
penses incurred in the course of ordinary activities of an 
entity. 
Operating lease. A lease agreement, usually cancella
ble, which provides the lessee with the use of an asset 
for a period of time which is considerably shorter than 
the useful life of the asset. Unlike a capital lease, the 
lessee in an operating lease does not assume the econom
ic risks of ownership, and the lessor generally provides 
all of the maintenance and services on the leased asset. 
Operating margin. Net operating income divided by 
sales for the period. 
Operating profit. Deducting the cost of goods sold from 
sales gives gross profit. Deducting the operating ex
pense (overhead) from the gross profit gives the operat
ing profit.

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OPERATIO 
Operatio lop�reysh(iy)ow/. One day's work performed 
by a tenant for his lord. 
Operation. Exertion of power; the process of operating 
or mode of action; an effect brought about in accordance 
with a definite plan; action; activity. In surgical prac
tice, the term may be defined as an act or succession of 
acts performed upon the body of a patient, for his relief 
or restoration to normal conditions, by the use of surgi
cal instruments as distinguished from therapeutic treat
ment by the administration of drugs or other remedial 
agencies. 
Operation of law. This term expresses the manner in 
which rights, and sometimes liabilities, devolve upon a 
person by the mere application to the particular transac
tion of the established rules of law, without the act or 
co-operation of the party himself. 
Operative. A workman; a laboring man; an artisan; 
particularly one employed in factories. Secret agent or 
detective. 
Operative part. That part of a conveyance, or of any 
instrument intended for the creation or transference of 
rights, by which the main object of the instrument is 
carried into effect. It is distinguished from introductory 
matter, recitals, formal conclusion, etc. 
Operative words. In a deed or lease, such are the words 
which effect the transaction intended to be consummat
ed by the instrument. 
Operis novi nuntiatio 16p�r�s n6wvay n:)nshiyeysh(iy)
owl. Lat. In the civil law, a protest or warning against 
[of] a new work. 
Opetide 16wptayd/. The ancient time of marriage, from 
Epiphany to Ash-Wednesday. 
Ophthalmologist I Of9relm61�j�stl . One who is skilled in, 
or practices, ophthalmology. Practice of "oculists" and 
"ophthalmologists" has relation to practice of medicine 
and surgery in treatment of diseases of eye, while prac
tice of "optometry" relates to measurement o f powers of 
vision and adaptation of lenses for aid thereof. See 
Oculist. 
Opiate. Any substance having an addiction-forming or 
addiction-sustaining liability similar to morphine or be
ing capable of conversion into a drug having addiction
fo rming or addiction-sustaining liability. 
OPIC. Overseas Private Investment Corporation. 
Opinio est duplex, scilicet, opinio vulgaris, orta inter 
graves et discretos, et qure vultum veritatis habet; 
et opinio tantum orta inter leves et vulgares ho
mines, absque specie veritatis I�pin(i)yow est d(y)uwp
leks sibs�t �pin(i)yow v�lger�s, 6rt� int�r greyviyz et 
d�skriytows, et kwiy v�lt�m vehr�teyt�s heyb�t; et 
�pin(i)yow trent�m, 6rt� int�r liyviyz et v�lgeriyz 
h6m�niyz, rebskwiy spiyshiy(iy) vehr�teyt�s/. Opinion is 
of two kinds, namely, common opinion, which springs up 
among grave and discreet men, and which has the 
appearance of truth, and opinion which springs up only 
among light and foo lish men, without the semblance of 
truth. 
1092 
Opinion. A document prepared by an attorney for his 
client, embodying his understanding of the law as appli
cable to a state of facts submitted to him for that 
purpose; e.g. an opinion of an attorney as to the market
ability of a land title as determined from a review of the 
abstract of title and other public records. 
The statement by a judge or court of the decision 
reached in regard to a cause tried or argued before 
them, expounding the law as applied to the case, and 
detailing the reasons upon which the judgment is based. 
An expression of the reasons why a certain decision 
(the judgment) was reached in a case. A majority opin
ion is usually written by one judge and represents the 
principles of law which a majority of his colleagues on 
the court deem operative in a given decision; it has 
more precedential value than any of the fo llowing. A 
separate opinion may be written by one or more judges 
in which he or they concur in or dissent from the 
majority opinion. A concurring opinion agrees with the 
result reached by the majority, but disagrees with the 
precise reasoning leading to that result. A dissenting or 
minority opinion disagrees with the result reached by 
the majority and thus disagrees with the reasoning 
and I or the principles of law used by the majority in 
deciding the case. A plurality opinion is agreed to by 
less than a majority as to the reasoning of the decision, 
but is agreed to by a majority as to the result. A per 
curiam opinion is an opinion "by the court" which 
expresses its decision in the case but whose author is not 
identified. A memorandum opinion is a holding of the 
whole court in which the opinion is very concise. 
In accounting, a document prepared by a certified 
public accountant regarding the audited financial state
ments of an entity. There are fo ur types of opinions: 
Unqualified: The financial statements are presented 
fairly in accordance with generally accepted accounting 
principles (GAAP) and are presented in a manner con
sistent with the prior year. An unqualified opinion is 
considered a clean opinion. 
Qualified: The financial statements are presented fair
ly in accordance with GAAP applied on a basis consist
ent with the prior year, "except for" a particular trans
action, or "subject to" a certain event. 
Disclaimer: The CPA is unable to render an opinion on 
the financial statements due to insufficient competent 
evidential matter. 
Adverse: The financial statements are not presented 
fairly in conformity with GAAP, or do not present 
fairly the financial position, results of operation, and 
changes in the financial position of the entity. An 
adverse opinion is uncommon and generally results 
when the CPA is unable to convince the client to 
present the financial statements fairly and in conformi
ty with GAAP. See also Adverse opinion. 
See also Audit (Audit opinion). 
See also Advisory opinion; Letter ruling; Majority opin
ion; Opinion evidence or testimony; Plurality; Slip opinion; 
Title opinion; Unqualified opinion.

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1093 
Opinion evidence or testimony. Evidence of what the 
witness thinks, believes, or infers in regard to facts in 
dispute, as distinguished from his personal knowledge of 
the facts themselves. The rules of evidence ordinarily 
do not permit witnesses to testify as to opinions or 
conclusions. An exception to this rule exists as to 
"expert witnesses". Witnesses who, by education and 
experience, have become expert in some art, science, 
prof ession, or calling, may state their opinions as to 
relevant and material matter, in which they profess to 
be expert, and may also state their reasons for the 
opinion. 
By expert witness. If scientific, technical, or other spe
cialized knowledge will assist the trier of fact to under
stand the evidence or to determine a fact in issue, a 
witness qualified as an expert by knowledge, skill, expe
rience, training, or education, may testify thereto in the 
form of an opinion or otherwise. Fed.Evid. Rule 702. 
See also Expert testimony; Expert witness. 
By lay witness. If the witness is not testifying as an 
expert, his testimony in the form of opinions or inferenc
es is limited to those opinions or inferences which are (a) 
rationally based on the perception of the witness and (b) 
helpful to a clear understanding of his testimony or the 
determination of a fact in issue. Fed.Evid. Rule 701. 
Opinio qure favet testamento est tenenda I �pin(i)yow 
kwiy feyv�t test�mentow est t�nend�/. The opinion 
which favors a will is to be fo llowed. 
Opium I owpi y�ml . Drug consisting of inspissated juice 
of opium poppy. 
Oportet quod certre personre, terrre, et certi status 
comprehendantur in declaratione usuum I �port�t 
kwod s;}rtiy p�rsowniy, tehriy et s;}rtay steyt�s 
kompr�hendrent�r in dekbreyshiyowniy yUwsyuw�m/. 
It is necessary that given persons, lands, and estates 
should be comprehended in a declaration of uses. 
Oportet quod certa res deducatur in donationem 
I �port�t kwod S;}rt� riyz diyd(y)�keyt�r in d�ney
shiyown�ml . It is necessary that a certain thing be 
brought into the gift, or made the subject of the convey
ance. 
Oportet quod certa res deducatur in judicium 
I�port�t kwOd S;}rt� riyz diyd(y)�keyt�r in j�dish(iy)�m/. 
A thing certain must be brought to judgment. 
Oportet quod certa sit res qure venditur I �port�t kwod 
S;}rt� sit riyz kwiy vend�t�r I. It ts necessary that there 
should be a certain thing which is sold. To make a valid 
sale, there must be certainty as to the thing which is 
sold. 
Oppignerare I�pign�reriy/. Lat. In the civil law, to 
pledge. 
Opposer I ';}powz';}r I. An officer formerly belonging to 
the green-wax in the exchequer. 
Opposite. An old word for "opponent." 
Opposite party. Within statutes providing that opposite 
party shall be incompetent to testify as to matters 
OPTIMACY 
equally within knowledge of deceased is one whose per
sonal and financial interests, either immediate or re
mote, are antagonistic to like interests of protected 
party. 
Opposition. Act of opposing or resisting; antagonism; 
state of being opposite or opposed; antithesis. Also, a 
position confronting another or placing in contrast; that 
which is or furnishes an obstacle to some result. Politi
cal party opposed to ministry or administration; or 
might be construed to include peaceful and orderly 
opposition to government. 
Oppression. The misdemeanor committed by a public 
of ficer, who under color of his office, wrongfully inflicts 
upon any person any bodily harm, imprisonment, or 
other injury. An act of cruelty, severity, unlawful exac
tion, or excessive use of authority. An act of subjecting 
to cruel and unjust hardship; an act of domination. 
Oppression which justifies award of punitive damages 
means act of cruelty, severity, unlawful exaction, or 
excessive use of authority and results from acts done in 
manner which violates right of another person with 
unnecessary harshness or severity as by misuse or abuse 
of authority or power. Dunfee v. Baskin-Robbins, Inc., 
221 Mont. 447, 720 P.2d 11 48, 11 55. 
See Coercion; Cruelty; Threat. 
Oppressor. A public officer who unlawfully uses his 
authority by way of oppression (q.v .). 
Opprobrium I';}prowbriy�m/. In the civil law, ignominy; 
infamy; shame. 
Optimacy lopt�m�siy/. Nobility; men of the highest 
rank. 
Optima est legis interpres consuetudo I opt�m';} est 
liyj';}S ';}nt;}rpriyz konsw�t(y)uwdow/. Custom is the best 
interpreter of the law. 
Optima est lex qure minimum relinquit arbitrio judi
cis; optimus judex qui minimum sibi lopt';}m';} est leks 
kway min';}m';}m r';}lil)kw';}t arbitriyow juwd';}s';}s; opt';}m';}s 
juwdeks kway min�m';}m sibay I. That law is the best 
which leaves least to the discretion of the judge; that 
judge is the best who leaves least to his own. That 
system of law is best which confides as little as possible 
to the discretion of the judge; that judge the best who 
relies as little as possible on his own opinion. 
Optimam esse legem, qure minimum relinquit arbi
trio judicis; id quod certitudo ejus prrestat lopt';}m';}m 
esiy liyj';}m kway min';}m';}m r';}lil)kw';}t arbitriyow 
juwd';}s';}s; id kwod s;}rt';}t(y)uwdow iyj';}s prestret/. That 
law is the best which leaves the least discretion to the 
judge; and this is an advantage which results from its 
certainty. 
Optima statuti interpretatrix est (omnibus particulis 
ejusdem inspectis) ipsum statutum lopt';}m';} st';}tyuw
tay int;}rpr';}teytr';}ks est (omn�b';}s partiky';}l';}s iyj;}sd';}m 
inspekt';}s) ips';}m st';}tyUwt';}m/. The best interpreter of a 
statute is (all its parts being considered) the statute 
itself.

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OPTIMUS INTERPRES RERUM USUS 
Optimus interpres rerum usus / 6pt�m�s �nt�rpriyz 
rir�m yUws�s/. Use or usage is the best interpreter of 
things. 
Optimus interpretandi modus est sic leges interpre
. tari ut leges legibus concordant I 6pt�m�s 
int�rpr�trenday mowd�s est sik liyjiyz int�rpr�teray �t 
liyjiyz liyj;)b;)s k;)IJkord;)nt/. The best mode of interpre
tation is so to interpret laws that they may accord with 
each other. 
Optimus judex, qui minimum sibi lopt;)m;)s juwdeks, 
kway min;)m;)m sibay/. He is the best judge who relies 
as little as possible on his own discretion. 
Optimus legum interpres consuetudo lopt;)m;)s liyg;)m 
;)nt�rpriyz konsw;)t(y)uwdow/. Custom is the best inter
preter of the laws. 
Option. Right of election to exercise a privilege. Con
tract made for consideration to keep an offer open for 
prescribed period. A right, which acts as a continuing 
offer, given for consideration, to purchase or lease prop
erty at an agreed upon price and terms, within a speci
fied time. An option is an agreement which gives the 
optionee the power to accept an offer for a limited time. 
Kelman v. Bohi, 27 Ariz.App. 24, 550 P.2d 671, 675. An 
option to purchase or to sell is not a contract to pur
chase or sell, as optionee has the right to accept or to 
reject the offer, in accordance with its terms, and is not 
bound. Catmull v. Johnson, Utah, 541 P.2d 793, 795. 
An option contract is a promise which meets the 
requirements for the formation of a contract and limits 
the promisor's power to revoke an offer. Restatement, 
Second, Contracts, § 25. 
A privilege existing in one person, for which he has 
paid money, which gives him the right to buy certain 
commodities or certain specified securities from another 
person, if he chooses, at any time within an agreed 
period, at a fixed price, or to sell such commodities or 
securities to such other person at an agreed price and 
time. If the option gives the choice of buying or not 
buying, it is denominated a "call." If it gives the choice 
of selling or not, it is called a "put." If it is a combina
tion of both these, and gives the privilege of either 
buying or selling or not, it is called a "straddle" or a 
"spread eagle." 
The sale or exchange of an option to buy or sell 
property results in capital gain or loss if the property is 
a capital asset. 
See also Call; Cash value option; Local option; Option 
to purchase; Put. 
Commodity futures option. The right-but not the obli
gation-to buy or sell a futures contract at a specified 
price within a fixed period, say, three, six, nine months 
01' longer. The option buyer pays a premium to the 
dealer for this right, plus the usual commission and 
nothing else. The option buyer does not have to be 
concerned about margin calls. All he can lose is the 
premium paid and commission. 
Commodity option. A right that is purchased by the 
option holder entitling him either to buy ("call option") 
1094 
from or to sell ("put option") at a stated price and within 
a stated time an underlying physical commodity (such as 
a specific quantity of gold, a train carload of coffee, etc.), 
or a commodity futures contract relating to that com
modity. The price paid for the option right is referred 
to as the "premium," and the price at which the option 
purchaser is entitled to buy or sell the underlying com
modity for futures contract is referred to as the "strik
ing price." "Exercise" is the decision of an option 
holder to require performance by the grantor of his 
obligation with respect to the underlying commodity or 
futures contract. The period during which an option 
may be exercised is specified in the contract. The 
"exercise date" or "expiration date" is the final day on 
which the option holder may exercise the option. 
Index option. A type of security in which the holder has 
the right to buy or sell, for a specified price at a 
specified future date, a theoretical interest in stocks 
making up the index. The option is exercised in cash, in 
an amount equal to the difference between the closing 
level of the index on the exercise date and the exercise 
price of the option, multiplied by the index "multiplier." 
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Yang, 
C.A.CaL 679 F.Supp. 981, 983. 
Naked options. Options sold by investors granting oth
ers the right to buy stock from them even though they 
own no stock to back up those commitments. 
Option premium. The consideration paid to keep a 
contractual offer to buy or sell open for a specified 
period of time. 
Stock option. The right to buy stock in the future at a 
price fixed in advance. See also Stock. 
Incentive stock option. See Qualified stock option, be
low. 
Non-qualified stock option. Stock option which does 
not meet the qualifications of a restricted stock option. 
See Restricted stock option, below. 
Qualified stock option. An option to purchase shares 
provided to an employee of the corporation under 
terms that qualify the option for special tax treatment 
under the Internal Revenue Code. I.R.C. § 421 et seq. 
Restricted stock option. A right granted to an employ
ee prior to 1964 which allows such an employee to buy 
stock at a fixed price established in advance. The 
options are restricted with respect to the option price, 
time of exercise, amount owned by the optionee, non
transferability, and Il).inimum holding period. Restrict
ed stock options were replaced by Qualified Stock Op
tions in 1964, and Incentive Stock Options in 1981. 
I.R.C. § 424. 
Optional writ. In old English practice, that species of 
original writ, otherwise called a "prrecipe," which was 
framed in the alternative, commanding the defendant to 
do the thing required, or show the reason wherefore he 
had not done it. 
Optionee. One who receives an option. 
Option spread. In securities trading, the difference 
between the option price and the fair market value of

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1095 
the stock at the time of exercise of the stock option. 
Divine v. C.I.R., C.A.2, 500 F.2d 1041, 1051. 
Option to purchase. A bilateral contract in which one 
party is given the right to buy the property within a 
period of time for a consideration paid to the seller. A 
right acquired by contract to accept or reject a present 
offer within a limited or reasonable time and is simply a 
contract by which the owner of property agrees with 
another person that he shall have the right to buy his 
property at a fixed price within a certain time. Crock
ett v. Lowther, Wyo., 549 P.2d 303, 308. See also Option. 
Opus /6wp�s/. Lat. Work; labor; the product of work 
or labor. 
Opus locatum / 6wp�s lowkey t�m/. The product of work 
let for use to another; or the hiring out of work or labor 
to be done upon a thing. 
Opus manificum /6wp�s mren�fish(iy)�m/. In old Eng
lish law, labor done by the hands; manual labor; such 
as making a hedge, digging a ditch. 
Opus novum /6wp�s n6wv�m/. In the civil law, a new 
work. By this term was meant something newly built 
upon land, or taken from a work already erected. He 
was said opus novum facere (to make a new work) who, 
either by building or by taking anything away, changed 
the fo rmer appearance of a work. 
Or, n. A term used in heraldry, and signifying gold; 
called "sol" by some heralds when it occurs in the arms 
of princes, and "topaz" or "carbuncle" when borne by 
peers. Engravers represent it by an indefinite number 
of small points. 
Or, conj. A disjunctive particle used to express an alter
native or to give a choice of one among two or more 
things. It is also used to clarify what has already been 
said, and in such cases, means "in other words," "to
wit," or "that is to say." The word "or" is to be used as 
a function word to indicate an alternative between dif
ferent or unlike things. City of Toledo v. Lucas County 
Budget Commission, 33 Ohio St.2d 62, 294 N.E.2d 661, 
663. In some usages, the word "or" creates a multiple 
rather than an alternative obligation; where necessary 
in interpreting an instrument, "or" may be construed to 
mean "and." Atchison v. City of Englewood, Colo., 568 
P.2d 13, 18. 
Oraculum /�rreky�l�m/. In the civil law, the name of a 
kind of response or sentence given by the Roman emper
ors. 
Oral. Uttered by the mouth or in words; spoken, not 
written. 
Oral argument. Presentation of reasons for affirmance, 
reversal, modification, etc. by appellee and appellant 
before appellate court; generally limited in time by 
court rule; e.g. Fed.R.App.P. 34. 
Statement before court in support of, or in objection 
to, motion or other legal relief sought. 
Oral confession. Statement given orally by defendant 
in which he admits the commission of the crime. Its 
admissibility in evidence is dependent upon its volun-
ORDEAL 
tariness, the condition of the defendant at the time of 
the confession, the length of time during which the 
defendant was held by the police before being brought 
before a magistrate and other factors. Federal courts 
generally hold that the burden of establishing the con
stitutional admissibility of a confession rests upon the 
prosecution. Pea v. United States, 130 U.S.App.D.C. 66, 
397 F.2d 627. See also Confession; Miranda Rule; Self 
incrimination. 
Oral contract. One which is partly in writing and 
partly depends on spoken words, or none of which is in 
writing; one which, so far as it has been reduced to 
writing, is incomplete or expresses only a part of what is 
intended, but is completed by spoken words; or one 
which, originally written, has afterwards been changed 
orally. See also Contract (Parol contract). 
Oral evidence. Evidence given by word of mouth; the 
oral testimony of a witness. See Parol evidence. 
Oral pleading. Pleading by word of mouth, in the 
actual presence of the court. This was the ancient mode 
of pleading in England, and continued to the reign of 
Edward III. 
Oral trust. The transfer of property in trust informally 
through an oral declaration in contrast to a formal trust 
which is in writing. Real estate trusts may not be 
created orally. See Frauds, Statute of. 
Oral will. See Nuncu pative will. 
Orando pro rege et regno / �rrendow prow rlYJlY et 
regnow /. An ancient writ which issued, while there 
was no standing collect for a sitting parliament, to pray 
for the peace and good government of the realm. 
Orator. The plaintiff in a cause or matter in chancery, 
when addressing or petitioning the court, used to style 
himself "orator," and, when a woman, "oratrix." But 
these terms have long gone into disuse, and the custom
ary phrases now are "plaintiff' or "petitioner." 
In Roman law, the term denoted an advocate. 
Oratrix / �reytr�ks/. A female petitioner; a female 
plaintiff in a bill of chancery was formerly so called. 
This term is obsolete. 
Orbation / orbeysh�n/. Deprivation of one's parents or 
children, or privation in general. 
Orcinus libertus / 6rs�n�s l�b;)rt�s/. Lat. In Roman 
law, a freedman who obtained his liberty by the direct 
operation of the will or testament of his deceased master 
was so called, being the freedman of the deceased (orci
nus), not of the hreres. 
Ordain. To institute or establish; to make an ordinance; 
to enact a constitution or law. To confer on a person 
the holy orders of priest or deacon. 
Ordeal. The most ancient species of trial, in Saxon and 
old English law, being peculiarly distinguished by the 
appellation of "judicium Dei," or "judgment of God," it 
being supposed that supernatural intervention would 
rescue an innocent person from the danger of physical 
harm to which he was exposed in this species of trial.

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ORDEAL 
The ordeal was of two sorts,-either fire ordeal or water 
ordeal; the former being confined to persons of higher 
rank, the latter to the common people. 
Fire ordeal. The ordeal by fire or red-hot iron, which 
was performed either by taking up in the hand a piece of 
red-hot iron, of one, two, or three pounds weight, or by 
walking barefoot and blindfolded over nine red-hot 
plowshares, laid lengthwise at unequal distances. 
Water ordeal. In Saxon and old English law, the ordeal 
or trial by water. The hot-water ordeal was performed 
by plunging the bare arm up to the elbow in boiling 
water, and escaping unhurt thereby. The cold-water 
ordeal was performed by casting the person suspected 
into a river or pond of cold water, when, if he floated 
therein, without any action of swimming it was deemed 
an evidence of his guilt; but, if he sunk, he was acquit
ted. 4 Bl.Comm. 343. 
Ordeffe, or ordelfe lordelf/. A liberty whereby a man 
claims the ore fo und in his own land; also, the ore lying 
under land. 
Ordels lordiylz /. In old English law, the right of admin
istering oaths and adjudging trials by ordeal within a 
precinct or liberty. 
Order. A mandate; precept; command or direction au
thoritatively given; rule or regulation. Brady v. Inter
state Commerce Commission, D.C.W.Va., 43 F.2d 847, 
850. Direction of a court or judge made or entered in 
writing, and not included in a judgment, which deter
mines some point or directs some step in the proceed
ings. An application for an order is a motion. 
In commercial law, a designation of the person to 
whom a bill of exchange or negotiable promissory note is 
to be paid. An "order" is a direction to pay and must be 
more than an authorization or request. It must identify 
the person to pay with reasonable certainty. It may be 
addressed to one or more such persons jointly or in the 
alternative but not in succession. V.C.C. § 3-102(1)(b). 
With respect to documents of title, is a direction to 
deliver goods to a specified person or to his or her order. 
Term is also used to designate a rank, class, or divi
sion of men; as the order of nobles, order of knights, 
order of priests, etc. 
See also Appealable order; Back order; Decision; De
cree; Executive order; Intermediate order; Judgment; 
Limit order; Payable to order; Percentage order; Restrain
ing order. 
Day order. Order from a customer to a broker to buy or 
sell a security on the particular day and such order is 
automatically cancelled at the end of that day. 
Decretal order. In chancery practice, an order made by 
the court of chancery, in the nature of a decree, upon a 
motion or petition. An order in a chancery suit made 
on motion or otherwise not at the regular hearing of a 
cause, and yet not of an interlocutory nature, but finally 
disposing of the cause, so far as a decree could then have 
disposed of it. 
1096 
Discretionary order. An order from a customer to a 
broker to sell a security at a price deemed acceptable by 
the broker. 
Final order. One which either terminates the action 
itself, or finally decides some matter litigated by the 
parties, or operates to divest some right; or one which 
completely disposes of the subject-matter and the rights 
of the parties. See also Final decision rule. 
General orders. Orders or rules of court, promulgated 
for the guidance of practitioners and the regulation of 
procedure in general, or in some general branch of its 
jurisdiction; as opposed to a rule or an order made in an 
individual case. General orders have generally been 
replaced by rules of court. 
Interlocutory order. An order which decides not the 
cause, but only settles some intervening matter relating 
to it or affords some temporary relief (e.g. temporary 
restraining order). 
Limit order. An order from a customer to a broker in 
which the customer places a lower limit on the price at 
which the security may be sold and a ceiling on the 
price at which the security may be bought. 
Market order. An order from a customer to a broker to 
buy or to sell a security at the market price then 
prevailing and hence the order must be executed 
promptly. 
Money order. See Money. 
Open order. An order from a customer to a broker to 
buy or to sell a security and the order remains in fo rce 
until it is either executed or cancelled by the customer. 
Percentage order. See that title. 
Restraining order. An order which may issue upon the 
filing of an application for an injunction fo rbidding the 
defendant to do the threatened act until a hearing on 
the application can be had. Though the term is some
times used as a synonym of "injunction," a restraining 
order is properly distinguishable from an injunction, in 
that the former is intended only as a restraint upon the 
defendant until the propriety of granting an injunction, 
temporary or perpetual, can be determined, and it does 
no more than restrain the proceedings until such deter
mination. Fed.R. Civil P. 65. See also Injunction; Re
straining order; Temporary restraining order. 
Speaking order. An order which contains matter which 
is explanatory or illustrative of the mere direction 
which is given by it is sometimes thus called. 
Stop order. Order to stockbroker to wait until the 
market price of the particular security reaches a speci
fied figure, and then to "stop" the transaction by either 
selling or buying, as the case may be, as well as possible. 
Stop payment order. Order from the drawer of a check 
to the drawee bank to stop payment on a check which 
has been drawn and given to the payee or lost. 
Order bill of lading. A negotiable bill of lading direct
ing that the goods be delivered to the person named or 
his order upon indorsement.

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1097 
Order document. A document of title that runs to a 
named person, either because the document was so 
issued or because the document was specially indorsed, 
which can therefore be negotiated only by the named 
person indorsing it. See U.C.C. § 7-501(1)-(3). 
Order instrument. A negotiable instrument that is 
payable to order either because the instrument was so 
issued, or because the instrument was specially in
dorsed. See U.C.C. §§ 3-110 (when instruments origi
nally payable to order); 3-20 4(1). 
Order nisi. A provisional or conditional order, allowing 
a certain time within which to do some required act, on 
failure of which the order will be made absolute. 
Order of Coif. See Coif. 
Order of filiation. An order made by a court or judge 
having jurisdiction, fixing the paternity of a child born 
out of wedlock upon a given man, and requiring him to 
provide for its support. 
Order paper. A negotiable instrument which is payable 
to a specific payee or to any person the payee, by his or 
her indorsement, designates. See U.C.C. § 3-104(1)(d); 
§ 3-110. See also Order document; Order instrument. 
Orders. The directions as to the course and purpose of a 
voyage given by the owner of the vessel to the captain or 
master. For other meanings, see Order. 
Order to show cause. See Show cause order. 
Ordinance. A rule established by authority; a perma
nent rule of action; a law or statute. In its most 
common meaning, the term is used to designate the 
enactments of the legislative body of a municipal corpo
ration. It designates a local law of a municipal corpora
tion, duly enacted by the proper authorities, prescribing 
general, uniform, and permanent rules of conduct relat
ing to the corporate affairs of the municipality. Morris 
v. Town of Newingto n, 36 Conn. Sup. 74, 411 A.2d 939, 
943. An ordinance is the equivalent of a municipal 
statute, passed by the city council, or equivalent body, 
and governing matters not already covered by federal or 
state law. Ordinances commonly govern zoning, build
ing, safety, etc. matters of municipality. 
The name has also been given to certain enactments, 
more general in their character than ordinary statutes, 
and serving as organic laws, yet not exactly to be called 
"constitutions." Such was the "Ordinance for the 
government of the North-West Territor y," enacted by 
congress in 1787. 
See also Municipal ordinance. Compare Resolution. 
Ordinance of 1647. A law passed by the Colony of 
Massachusetts, still in fo rce, in a modified form, where
by the state owns the great ponds within its confines, 
which are held in trust for public uses. Watuppa Reser
voir Co. v. Fall River, 147 Mass. 548, 18 N.E. 465. 
Ordinance of 1787. A statute for the government of the 
Northwest Territory. Religious and legal freedom, en
couragement of education, just treatment of the Indians, 
the future division into States, and the exclusion of 
slavery were ordained. 
ORDINARY 
Ordinandi lex / ord�nrenday leks/. Lat. The law of 
procedure, as distinguished from the substantial part of 
the law. 
Ordinarius ita dicitur quia habet ordinariam juris
dictionem, in jure proprio, et non propter deputa
tionem / ord�neriy�s ayta dis�t�r kwaya heyb�t 
ord�neriy�m jur�sdikshiyown�m in juriy prowpriyow et 
non propt�r depy�teyshiyown�m/. The ordinary is so 
called because he has an ordinary jurisdiction in his own 
right, and not a deputed one. 
Ordinary, n. At common law, one who had exempt and 
immediate jurisdiction in causes ecclesiastical. Also a 
bishop; and an archbishop is the ordinary of the whole 
province, to visit and receive appeals from inferior juris
dictions. Also a commissary or of ficial of a bishop or 
other ecclesiastical judge having judicial power; an 
archdeacon; officer of the royal household. 
In American law, a judicial officer, in several of the 
states, clothed by statute with powers in regard to wills, 
probate, administration, guardianship, etc. See also 
Court of Ordinary. 
Former term for a public house where food and lodg
ing were furnished to the traveler and his beast, at fixed 
rates, open to whoever may apply for accommodation, 
and where intoxicating liquor was sold at retail. 
In the civil law, a judge who has authority to take 
cognizance of causes in his own right, and not by deputa
tion. 
Ordinary, adj. Regular; usual; normal; common; often 
recurring; according to established order; settled; cus
tomary; reasonable; not characterized by peculiar or 
unusual circumstances; belonging to, exercised by, or 
characteristic of, the normal or average individual. 
As to ordinary Care; Diligence; Negligence, see those 
titles. 
Ordinary and necessary expenses. The phrase "ordinary 
and necessary expenses", as found in business deduction 
section of Internal Revenue Code, implies that the ex
penses are reasonable and bear proximate relation to 
management of property held for production of income. 
National Can Corp. v. U.S., D.C.Ill., 520 F.Supp. 567, 
579. "Ordinary" means normal and expected and "nec
essary" means appropriate and helpful. McCabe v. 
C.I.R., C.A.2, 688 F.2d 102, 105. For an item to qualify 
as an "ordinary and necessary expense" deductible un
der Internal Revenue Code section, five requirements 
must be met: item must be paid or incurred during 
taxable year, must be for carrying on any trade or 
business, must be an expense, must be necessary, and 
must be ordinary. Iowa-Des Moines Nat. Bank v. C.I.R. , 
C.A.8, 592 F.2d 433, 435. See also Necessary; and 
Ordinary expenses, below. 
Ordinary calling. Those things which are repeated dai
ly or weekly in the course of business. 
Ordinary care. That degree of care which ordinarily 
prudent and competent person engaged in same line of 
business or endeavor should exercise under similar cir
cumstances, and in law means same as "due care" and

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ORDINARY 
"reasonable care." Warner v. Kiowa County Hospital 
Authority, Okl.App., 551 P.2d 117 9, 11 88. That care 
which reasonably prudent persons exercise in the 
management of their own affairs, in order to avoid 
injury to themselves or their property, or the persons or 
property of others. Ordinary care is not an absolute 
term, but a relative one. Thus, in deciding whether 
ordinary care was exercised in a given case, the conduct 
in question must be viewed in the light of all the 
surrounding circumstances, as shown by the evidence in 
the case. See also Care. 
Ordinary course of business. The transaction of business 
according to the common usages and customs of the 
commercial world generally or of the particular commu
nity or (in some cases) of the particular individual whose 
acts are under consideration. Term used in connection 
with sales made by a merchant as part of his regular 
business and in contrast with a sale in bulk which is 
regulated by statute, e.g. U.C.C. § �102(1). In general, 
any matter which transpires as a matter of normal and 
incidental daily customs and practices in business. 
Ordinary dangers incident to employment. Those com
monly and usually pertaining to and incident to it, 
which a reasonably prudent person might anticipate, 
and do not include danger by acts of negligence, unless 
habitual and known to the servant. 
Ordinary expenses. Common and accepted in the gener
al business in which the taxpayer is engaged. It com
prises one of the tests for the deductibility of normal and 
expected expenses incurred or paid in connection with a 
trade or business; for the production or collection of 
income; for the management, conservation, or mainte
nance of property held for the production of income; or 
in connection with the determination, collection, or re
fund of any tax. I.R.C. § 162(a). See also Necessary; 
and Ordinary and necessary expenses, above. 
Ordinary income. As tax term used in connection with 
a business, means earnings from the normal operations 
or activities of a business. In terms of an individual, 
ordinary income is income from such sources as wages, 
commissions, interest, etc. 
Ordinary loss. A loss on the sale or exchange of an item 
used in a trade or business which is not considered a 
capital asset. In taxation, ordinary losses reduce ordi
nary income such as; salaries, interest, etc., while capi
tal losses serve to reduce capital gains and those in 
excess of capital gains may reduce ordinary income up 
to a certain amount. 
Ordinary negligence. The failure to use that degree of 
care which the ordinary or reasonably prudent person 
would have used under the circumstances and for which 
the negligent person is liable. Term is used in contra
distinction to gross negligence which is more serious and 
a more flagrant lack of care. See also Negligence, and 
Ordinary care, above. 
Ordinary persons. Men of ordinary care and diligence in 
relation to any particular thing. 
1098 
Ordinary proceeding. Such a proceeding as was known 
to the common law and was fo rmerly conducted in 
accordance with the proceedings of the common-law 
courts, and as is generally known under the current 
Rules of Civil Procedure and Codes to be such a proceed
ing as is started by the issuance of a summons, and 
results in a judgment enforceable by execution. 
Ordinary repairs. Such as are necessary to make good 
the usual wear and tear or natural and unavoidable 
decay and keep the property in good condition. Com
pare Improvements. 
Ordinary risks. Those incident to the business, and do 
not imply the result of the employer's negligence. The 
expression "extraordinary risks" is generally used to 
describe risks arising from the negligence of the employ
er, and they are generally held not to be assumed unless 
known or obvious. 
Ordinary seaman. A sailor who is capable of performing 
the ordinary or routine duties of a seaman, but who is 
not yet so proficient in the knowledge and practice of all 
the various duties of a sailor at sea as to be rated as an 
"able" seaman. 
Ordinary services of administrators include all the ser
vices incident to the closing and distribution of an es
tate, and not merely the receiving and disbursing of the 
funds and to justify an allowance of further compensa
tion the administrator must have rendered services of 
an extraordinary character necessary to the protection 
of the estate, and, if he employs another to perform 
services which he is required to perform under the law, 
he cannot charge such services as an expense of admin
istration. 
Ordinary skill in an art. That degree of skill which 
men engaged in that particular art usually employ; not 
that which belongs to a few men only, of extraordinary 
endowments and capacities. 
Ordinary written law. Law made, within constitutional 
restrictions, by the Legislature; i.e. statutes. 
Ordination. Ceremony by which a bishop confers on a 
person the privileges and powers necessary for the exe
cution of sacerdotal functions in the church. 
Ordinatum est lord:meyt;}m est!. In old practice, it is 
ordered. The initial words of rules of court when en
tered in Latin. 
Ordine placitandi servato, servatur et jus lord;}niy 
phes;}trenday s;}rveytow, s;}rveyt;}r et j:ls/. When the 
order of pleading is observed, the law also is observed. 
Ordines I ord;}niyz/. A general chapter or other solemn 
convention of the religious of a particular order. 
Ordinis beneficium lord;}n;}s ben�fish(iy);}m/. Lat. In 
the civil law, the benefit or privilege of order; the 
privilege which a surety for a debtor had of requiring 
that his principal should be discussed, or thoroughly 
prosecuted, before the creditor could resort to him. 
Ordo attachiamentorum lordow ;}tcech(iy);}menoor;}m/. 
In old English practice, the order of attachments.

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Ordo judiciorum / 6rdo w j�dishiy6r�m/. In the canon 
law, the order of judgments; the rule by which the due 
course of hearing each cause was prescribed. 
Ordonnance /ordown6n(t)s /6rd�n�n(t)s/. Fr. In French 
law, an ordinance; an order of a court; a compilation or 
systematized body of law relating to a particular subject
matter, as, commercial law or maritime law. Particu
larly, a compilation of the law relating to prizes and 
captures at sea. 
Ore-leave. A license or right to dig and take ore from 
land. 
Ore tenus / 6riy tiyn�s/. Lat. By word of mouth; oral
ly. Pleading was anciently carried on ore tenus, at the 
bar of the court. 3 Bl.Comm. 293. 
Ore tenus rule. Under the "ore tenus rule," reviewing 
court must affirm the trial court unless its findings are 
plainly and palpably erroneous. Hamaker v. Hamaker, 
57 Ala.App. 333, 328 So.2d 588, 592. 
Orfgild /6rfgild/. In Saxon law, the price or value of a 
beast. A payment for a beast. The payment or forfei
ture of a beast. A penalty for taking away cattle. 
Organic Act. An act of Congress conferring powers of 
government upon a territory. in re Lane, 135 U.S. 443, 
10 S.Ct. 760, 34 L.Ed. 219. 
A statute by which a municipal corporation is orga
nized and created is its "organic act" and the limit of its 
power, so that all acts beyond the scope of the powers 
there granted are void. 
Organic law. The fundamental law, or constitution, of a 
state or nation, written or unwritten. That law or 
system of laws or principles which defines and establish
es the organization of its government. 
Organization. As term is used in commercial law, in
cludes a corporation, government or governmental sub
division or agency, business trust, estate, trust, partner
ship or association, two or more persons having a joint 
or common interest, or any other legal or commercial 
entity. U.C.C. § 1-201(28). See also Charitable organiza
tions. 
Organize. To establish or furnish with organs; to sys
tematize; to put into working order; to arrange in order 
for the normal exercise of its appropriate functions. 
City of Beaumont v. City of Beaumont Independent 
School Dist., Tex.Civ.App., 164 S.W.2d 753, 756. 
Organized county. A county which has its lawful offi
cers, legal machinery, and means for carrying out the 
powers and performing the duties pertaining to it as a 
quasi municipal corporation. City of Beaumont v. City 
of Beaumont Independent School Dist., Tex.Civ.App., 
164 S.W.2d 753, 757. 
Organized labor. Segments of labor force represented 
by unions; e.g. AFL-CIO. 
Orgild /6rgild/. In Saxon law, without recompense; as 
where no satisfaction was to be made for the death of a 
man killed, so that he was judged lawfully slain. 
ORIGINAL 
Original. Primitive; first in order; bearing its own 
authority, and not deriving authority from an outside 
source; as original jurisdiction, original writ, etc. As 
applied to documents, the original is the first copy or 
archetype; that from which another instrument is tran
scribed, copied, or imitated. See also Original evidence, 
below. 
In copyright law means that the work owes its cre
ation or origin to the author and this in turn means that 
the work must not consist in actual copying. L. Batlin 
& Son Inc. v. Jeffrey Snyder and Etna Products Co. Inc., 
C.A.N.Y., 536 F.2d 486, 489. 
Original bill. In equity pleading, a bill which relates to 
some matter not before litigated in the court by the 
same persons standing in the same interests. The an
cient mode of commencing actions in the English court 
of King's bench. See Bill. 
Original contractor. One who for a fixed price agrees 
with owner to perform certain work or furnish certain 
material. 
Original conveyances. Those conveyances at common 
law, otherwise termed "primary," by which a benefit or 
estate is created or first arises; comprising feoffments, 
gifts, grants, leases, exchanges, and partitions. 2 Bl. 
Comm. 309. 
Original cost. Total of all. costs associated with acquisi
tion of an asset. 
Original entry. The first entry of an item of an account 
made by a merchant or other person in his account
books, as distinguished from entries posted into the 
ledger or copied from other books. 
Original estates. See Estate. 
Original evidence. An original document, writing, or 
other material object introduced in evidence as distin
guished from a copy of it or from extraneous evidence of 
its content or purport. 
An "original" of a writing or recording is the writing 
or recording itself or any counterpart intended to have 
the same effect by a person executing or issuing it. An 
"original" or a photograph includes the negative or any 
print therefrom. If data are stored in a computer or 
similar device, any printout or other output readable by 
sight shown to reflect the data accurately, is an "origi
nal". Fed.Evid.R. 1001(3). See also Copy; Dupl icate. 
Original inventor. In patent law, a pioneer in the art; 
one who evolves the original idea and brings it to some 
successful, useful and tangible result; as distinguished 
from an improver. 
Original jurisdiction. Jurisdiction to consider a case in 
the first instance. Jurisdiction of court to take cogni
zance of a cause at its inception, try it, and pass judg
ment upon the law and facts. Distinguished from appel
late jurisdiction. 
Original package. A package prepared for interstate or 
foreign transportation, and remaining in the same con
dition as when it left the shipper, that is, unbroken and 
undivided. A package of such form and size as is used

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by producers or shippers for the purpose of securing 
both convenience in handling and security in transpor
tation of merchandise between dealers in the ordinary 
course of actual commerce. Austin v. Tennessee, 179 
U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224. See also Original 
package doctrine. 
Original plat. The first plat of a town from the subse
quent additions, and "original town" is employed in the 
same way. 
Original process. See Process. 
Original promise. An original promise, without the 
statute of frauds, is one in which the direct and leading 
object of the promisor is to further or promote some 
purpose or interest of his own, although the incidental 
effect may be the payment of the debt of another. 
Original writ. See Writ. 
Single original. An original instrument which is exe
cuted singly, and not in duplicate. 
Original document rule. The best evidence of the 
contents of a document is the original of that document. 
The party bearing the burden of proving the contents of 
a document is required to introduce the original unless 
he is excused from its production because of its nonavail
ability and in this instance, secondary evidence is admis
sible. There are no degrees of secondary evidence. See 
also Best evidence. 
Original grade doctrine. This doctrine relieves public 
body from any liability for property damaged in the 
reduction of the surface of the street to the grade line 
for the first time established. Dickson v. City of Pull
man, 11 Wash.App. 813, 525 P.2d 838-8 41. 
Originalia /;;,rij;;,neyl(i)y;;,/. In ' old English law, tran
scripts sent to the remembrancer's office in the excheq
uer out of the chancery, distinguished from re
corda, which contain the judgments and pleadings in 
actions tried before the barons. The treasurer-remem
brancer's office was abolished in 1833. 
Original issue. The first issue of stocks or bonds of a 
particular kind or series. 
Original package doctrine. In Brown v. Maryland, 25 
U.S. (12 Wheat.) 419, 6 L.Ed. 678, a landmark case under 
the commerce clause of the U.S.Const., the Supreme 
Court held that a state was free to levy a tax or license 
fee on imports only after the original package had been 
broken because at this juncture the goods no longer 
were in the flow of interstate commerce and therefore 
no longer subject to federal regulation. 
Origination clause. Article I, Section 7 or U.S. Consti
tution provides that "All Bills for raising Revenue shall 
originate in the House of Representatives." 
Origination fee. Charge to borrower (of e.g., mortgage 
loan) to cover costs of issuing loan, including credit and 
title checks, property appraisals, etc. 
Origine propria neminem posse voluntate sua eximi 
manifestum est / ;;,rij;;,niy pr6wpriy;;, nem;;,n;;,m pOsiy 
vol;;,nteytiy s(y)uw;;, mren;;,fest;;,m est!. It is evident that 
1100 
no one is able of his own pleasure, to do away with his 
proper origin. 
Origo rei inspici debet /6hr;;,gow riyay insp;;,say deb;;,t!. 
The origin of a thing ought to be regarded. 
Ornest. In old English law, the trial by battle, which 
does not seem to have been usual in England before the 
time of the Conqueror, though originating in the king
doms of the north, where it was practiced under the 
name of "holmgang," from the custom of fighting duels 
on a small island or holm. 
ORP. Ordinary, reasonable and prudent (man). See 
Negligence. The standard of care on which negligence 
cases are based. See Reasonable man doctrine or stan
dard. 
Orphan / 6rf;;,n/. Any person (but particularly a minor 
or infant) who has lost both (or, sometimes, one) of his or 
her parents. 
Orphanotrophi /orf;;,n;;,tr6wfay/. In the civil law, man
agers of houses for orphans. 
Orphan's courts. Courts in several New England states 
with probate jurisdiction. 
Orphan's deduction. Deduction from the taxable estate 
of the decedent permitted if the decedent does not have 
a surviving spouse, and is survived by a minor child 
who, immediately after the death of the decedent, has 
no known parent. The amount of the deduction is 
governed by I.R.C. § 2057. 
Orwige, sine witi. In old English law, without war or 
feud, such security being provided by the laws, for 
homicides under certain circumstances, against the 
foehth, or deadly feud, on the part of the family of the 
slain. 
O.S. An abbreviation for "Old Style," or "Old Series." 
OSHA. Occupational Safety and Health Act. 
Ostendit vobis /ostend;;,t v6wb;;,s/. Lat. In old pleading, 
"shows to you." Formal words with which a demandant 
began his count. 
Ostensible agency. An implied or presumptive agency, 
which exists where one, either intentionally or from 
want of ordinary care, induces another to believe that a 
third person is his agent, though he never in fact em
ployed him. It is, strictly speaking, no agency at all, but 
is in reality based entirely upon estoppel. 
Ostensible authority. Such authority as a principal, 
intentionally or by want of ordinary care, causes or 
allows a third person to believe that the agent possesses. 
National Cash Register Co. v. Wichita Frozen Food Lock
ers, Tex.Civ.App., 172 S.W.2d 781, 787. 
Ostensible ownership. Apparent ownership derived 
from conduct or words. Theory of "ostensible owner
ship" estops an owner of property who clothes another 
with apparent title from later asserting his title against 
an innocent third party who has been induced to deal 
with apparent owner. Domarad v. Fisher & Burke, Inc., 
270 Cal.App.2d 543, 76 Cal.Rptr. 529, 535.

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11 01 
Ostensible partner. One whose name appears to the 
world as such, though he has no interest in the firm. 
Ostensio lostensh(iy)ow/. A tax anciently paid by mer
chants, etc., for leave to show or expose their goods for 
sale in markets. 
Osteopath /ostiyapreOI. One who practices osteopathy. 
Osteopathy lostiyopaOiy/. A system of complete medi
cal practice based on the maintenance of proper rela
tionships among the various parts of the body. Osteo
pathic physicians, licensed in all 50 states, employ ma
nipulative therapy, drugs, surgery, x-ray, and all other 
accepted therapeutic methods in the treatment of dis
ease and injury. 
Osteopathic medicine focuses special attention on the 
biological mechanisms by which the musculoskeletal 
system, through the nervous and circulatory systems, 
interacts with all body organs and systems in both 
health and disease. D.O.S., or Doctors of Osteopathy, 
diagnose and treat disorders of the musculoskeletal sys
tem through palpation and appropriately applied manip
ulative procedures. See Holt v. College of Osteopathic 
Physicians and Surgeons, 61 Ca1.2d 750, 40 Cal.Rptr. 
244, 394 P.2d 932. 
OTB. Off-track betting. 
O.T.C. See Over-the-counter market. 
Other. Different or distinct from that already men
tioned; additional, or further. Following an enumer
ation of particular classes "other" must be read as 
"other such like," and includes only others of like kind 
and character. 
Other income. In taxation, income from sources other 
than in the operation of a business. An example of 
"other income" of a corporation includes, but is not 
limited to, interest and dividend income. 
Otherwise. In a different manner; in another way, or 
in other ways. 
Othesworthe lowO(a)sw?'rOI. In Saxon law, oathsworth; 
oathworthy; worthy or entitled to make oath. 
Ought. This word, though generally directory only, will 
be taken as mandatory if the context requires it . . 
OUI. Abbreviation for state statutes involving operation 
of motor vehicle while under influence of liquor or 
drugs. See Driving while intoxicated. 
Ounce. The twelfth part; the twelfth part of a pound 
troy or the sixteenth part of a pound avoirdupois. 
Ourlop. The lierwite or fine paid to the lord by the 
inferior tenant when his daughter was debauched. 
Oust. To put out; to eject; to remove or deprive; to 
deprive of the possession or enjoyment of an estate or 
franchise. 
Ouster. A putting out; dispossession; amotion o f posses
sion. A species of injuries to things real, by which the 
wrong-doer gains actual occupation of the land, and 
compels the rightful owner to seek his legal remedy in 
order to gain possession. An "ouster" is a wrongful 
OUTHOUSE 
dispossession or exclusion of a party from real property 
and involves a question of intent. Hamilton v. Mac
Donald, C.A.Ariz., 503 F.2d 11 38, 11 46. Notorious and 
unequivocal act by which one cotenant deprives another 
of right to common and equal possession and enjoyment 
of property. Young v. Young, 37 Md.App. 211, 376 A.2d 
11 51, 11 58. See also Ejectment. 
Ouster Ie main hiwstar lameyn/. L. Fr. Literally, out 
of the hand. 
Ouster Ie mer /awstar lamer/. L. Fr. Beyond the sea; 
a cause of excuse if a person, being summoned, did not 
appear in court. Spurious form for "Oulter Ie mer". 
Ouster of jurisdiction. A condition which exists when a 
court which once had' jurisdiction over a matter ceases 
to retain its jurisdiction. 
Outage. A tax or charge formerly imposed by the state 
of Maryland for the inspection and marking of hogs
heads of tobacco intended for export. Turner v. Mary
land, 107 U.S. 38, 2 S.Ct. 44, 27 L.Ed. 370. 
Outbuilding. Something used in connection with a 
main building. A small building appurtenant to a main 
building, and generally separated from it; e.g. outhouse; 
storage shed. See also Outhouse. 
Outcome test. In a diversity of citizenship action in the 
federal court, the result should be the same as if the 
action had been commenced in the state court. Guaran
ty Trust Co. of N. Y. v. York, 326 U.S. 99, 109, 65 S.Ct. 
1464, 1470, 89 L.Ed. 2079. 
Outer bar. Refers to those barristers in the English 
court system who sit in the "outer" or "utter" bar; 
called junior barristers as distinguished from the King's 
counsel. 
Outer continental shelf. All lands lying submerged 
seaward and not including lands beneath navigable wa
ters. The subsoil and sea bed of such lands are subject 
to the jurisdiction and control of the United States. 43 
U.S.C.A. § 13 31. 
Outer door. In connection with the rule, statutory or 
otherwise, for bidding an officer to break open the outer 
door to serve civil process, this term designates the door 
of each separate apartment, where there are different 
apartments having a common outer door. 
Outfangthef I awtfrengOiyf/. A liberty or privilege in the 
ancient common law, whereby a lord was enabled to call 
any man dwelling in his manor, and taken for felony in 
another place out of his fee, to judgment in his own 
court. See Infangenthef. 
Outgo. Expenditures. 
Outhouse. A building subservient to, yet distinct from, . 
the principal dwelling, located either within or without 
the curtilage. A smaller or subordinate building con
nected with a dwelling, usually detached from it and 
standing at a little distance from it, not intended for 
persons to live in, but to serve some purpose of conve
nience or necessity; as a barn, outside privy, a dairy, a 
toolhouse, and the like. Under statutes, such a building

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may be subservient to and adjoin a business building as 
well as a dwelling house. See also Outbuilding. 
Outland. The Saxon thanes divided their hereditary 
lands into inland, such as lay nearest their dwelling, 
which they kept to their own use, and outland, which 
lay beyond the demesnes, and was granted out to ten
ants, at the will of the lord, like copyhold estates. This 
outland they subdivided into two parts. One part they 
disposed among those who attended their persons, called 
"theodans," or lesser thanes; the other part they allot
ted to their husbandmen, or churls. 
Outlaw. In English law, one who is put out of the 
protection or aid of the law. 3 Bl.Comm. 283, 284. 
Popularly, a person violating the law; a fugitive. 
Outlawed. With reference to a debt means barred by 
the statute of limitations. Brady v. Tarr, 145 Pa.Super. 
316, 21 A.2d 131, 133. 
Outlawry. In old English law, a process by which a 
defendant or person in contempt on a civil or criminal 
process was declared an outlaw. If for treason or felony, 
it amounted to conviction and attainder. 
In the United States, the process of outlawry seems to 
be unknown, at least in civil cases. Hall v. Lanning, 91 
U.S. 160, 23 L.Ed. 271. 
Outline. The line which marks the outer limits of an 
object or figure; an exterior line or edge; contour. 
Outlot. In ' early American land law (particularly in 
Missouri), a lot or parcel of land lying outside the 
corporate limits of a town or village but subject to its 
municipal jurisdiction or control. Term now generally 
refers to an area of land on a plat which is to be used for 
a purpose other than a building site. 
Out of benefit. A term descriptive of insurance policy
holders who have been suspended for nonpayment of 
premiums. 
Out-of-court settlement. The phrase is used with refer
ence to agreements and transactions in regard to a 
pending suit which are arranged or take place between 
parties or their counsel privately and without being 
referred to the judge or court for authorization or ap
proval. Thus, a case which is compromised, settled, and 
withdrawn by private agreement of the parties, after its 
institution, is said to be settled "out of court." See 
Settlement (Structured settlement). 
Out-of-pocket expenses. Said of an expenditure usual
ly paid for with cash. An incremental cost. 
Out-of-pocket loss. As measure of damages, is the dif
ference between the value of what the purchaser parted 
with (i.e., the purchase price paid by him) and the value 
of what he has received (i.e., the actual market value of 
the goods). Otte v. Ron Tonkin Chevrolet Co., 264 Or. 
265, 503 P.2d 716, 720. Also called "out-of-pocket loss 
rule." 
Out of term. At a time when no term of the court is 
being held; in the vacation or interval which elapses 
between terms of the court. 
11 02 
Out of the state. In reference to rights, liabilities, or 
jurisdictions arising out of the common law, this phrase 
is equivalent to "beyond sea" (q. v.). In other connec
tions, it means physically beyond the territorial limits of 
the particular state in question, or constructively so, as 
in the case of a foreign corporation. But a foreign 
corporation maintaining an agent within the state is not 
deemed to be "out of the state," within various statutes 
dealing with jurisdiction over fo reign corporations "do
ing business" within state. 
Out of time. A mercantile phrase applied to a ship or 
vessel that has been so long at sea as to justify the belief 
of her total loss. In another sense, a vessel is said to be 
out of time when, computed from her known day of 
sailing, the time that has elapsed exceeds the average 
duration of similar voyages at the same season of the 
year. The phrase is identical with "missing ship." 
Outparters / awtpart::lrz/. Stealers of cattle. A spurious 
form for "outputters". 
Output contract. See Contract; Entire output contract. 
Outrage. A grave injury; injurious violence. The tort 
of "outrage" (intentional infliction of serious mental 
distress) requires that defendant engage in outrageous 
and extreme conduct which results in intentionally or 
recklessly inflicted severe emotional distress. Spencer 
v. King County, 39 Wash. App. 201, 692 P.2d 874, 880. 
Outriders. In old English law, bailiffs-errant employed 
by sheriffs or their deputies to ride to the extremities of 
their counties or hundreds to summon men to the coun
ty or hundred court. 
Outright. Free from reserve or restraint; direct; posi
tive; down-right; altogether; entirely; openly. 
Outroper / awtrowp::lr /. A person to whom the business 
of selling by auction was confined by statute. 
Outs. In banking parlance, are conditions or warranties, 
failure to comply with which by the prospect give the 
banker a right to escape from a contract and to termi
nate negotiatio ns. Cray, McFawn & Co. v. Hegarty, 
Conroy & Co., D.C.N.Y., 27 F.Supp. 93, 100. 
Outside. To the exterior of; without; outward from. 
Outside director. A member of a corporate board of 
directors who is not an employee or company officer and 
does not participate in the corporation's day-to-day 
management. Outside directors, however, may include 
investment bankers, attorneys, or others who provide 
advice or services to incumbent management and thus 
have financial ties with management. 
Outside salesmen. An outside salesman is one who 
solicits business away from the employer 's place of busi
ness on a full-time basis. If an employee qualifies as an 
outside salesman, all employment related expenses are 
deductible. 
Outstanding. Remaining undischarged; unpaid; uncol
lected; as an outstanding debt. Constituting an effec
tive obligation. When said of stock, the shares issued 
less treasury stock. When said of checks, it means a

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check issued but not yet presented for payment; a check 
that did not clear the drawer's bank prior to the bank 
statement date. 
Existing as an adverse claim or pretension; not united 
with, or merged in, the title or claim of the party; as an 
outstanding title. 
Outstanding and open account. In legal and commer
cial transactions it is an unsettled debt arising from 
items of work and labor, goods sold and delivered, and 
other open transactions, not reduced to writing, and 
subject to future settlement and adjustment and usually 
disclosed by account books of the owner of the demand 
and does not include express contracts or obligations 
which have been reduced to writing such as bonds, bills 
of exchange, or notes. Lee v. De Forest, 22 Cal.App.2d 
351, 71 P.2d 285, 291. 
Outstanding balance. Current amount owed on debt. 
Outstroke. To mine by outstroke is to take out mineral 
from adjoining property through the tunnels and shafts 
of the demised premises. 
Ouverture des successions /uwvertyur dey s�kse
syown /. In French law, the right of succession which 
arises to one upon the death, whether natural or civil, of 
another. 
Ovell /ow(v)el/. L. Fr. Equal. 
Ovelty /ow(v)�ltiy/. In old English law, equality. 
Over. Above; overhead; more than; in excess of. 
Continued;-sometimes written on one page or sheet 
to indicate a continuation of matter on a separate page 
or sheet. 
In conveyancing, the word is used to denote a contin
gent limitation intended to take effect on the failure of a 
prior estate. Thus, in what is commonly called the 
"name and arms clause" in a will or settlement there is 
generally a proviso that if the devisee fails to comply 
with the condition the estate is to go to some one else. 
This is a limitation or gift over. 
Overawe / owv�r6/. To subjugate or restrain by awe, or 
profound reverence. 
Overbreadth doctrine. This doctrine, which derives 
from First Amendment, serves to invalidate legislation 
so sweeping that, along with its allowable proscriptions, 
it also restricts constitutionally protected rights of free 
speech, press or assembly. McCrary v. State, Ala.Cr. 
App., 429 So.2d 11 21, 11 23. The doctrine requires that a 
statute be invalidated if it is fairly capable of being 
applied to punish people for constitutionally protected 
speech or conduct. A law is void on its face if it "does 
not aim specifically at evils within the allowable area of 
[gove rnment] control, but sweeps within its 
ambit other activities that constitute an exercise" of 
protected expressive or associational rights. Thornhill v. 
Alabama, 310 U.S. 88, 97, 60 S.Ct. 296, 84 L.Ed. 460. A 
plausible challenge to a law as void for overbreadth can 
be made only when (1) the protected activity is a signifi
cant part of the law's target, and (2) there exists no 
satisfactory way of severing the law's constitutional 
OVERHEAD 
. from its unconstitutional applications so as to excise the 
latter clearly in a single step from the law's reach. 
Overcharge. With respect to public carriers or public 
utilities, a charge collected above a lawful tariff rate; a 
charge of more than is permitted by law. As regards 
interest rates, see Usury. 
Overcome. As used in a statute providing that a pre
sumption may be overcome by other evidence, this term 
is not synonymous with overbalance or outweigh, but 
requires merely that such evidence counterbalance the 
presumption, where the party relying on it has the 
burden of proof. 
Overcyted, or overcyhsed. Proved guilty or convicted. 
Overdraft. A check written on a checking account con
taining less funds than the amount of the check. Term 
may also refer to the condition which exists when vouch
ers or purchase orders are drawn in amounts in excess 
of budgeted or appropriated amount. See also Kiting; 
NSF check. 
Overdraw. To draw upon a person or a bank in an 
amount in excess of the funds remaining to the drawer's 
credit with the drawee, or to an amount greater than 
what is due. See also Overdraft. 
Overdue. Due and more than due; delayed or unpaid. 
Bliss v. California Co-op Producers, Cal.App., 156 P.2d 
259, 260. The circumstance of an instrument that has 
not been paid despite arrival of the time for paying it, as 
by arrival of a date specified for payment or by acceler
ation or demand. A negotiable instrument or other 
evidence of debt is overdue when the day of its maturity 
is past and it remains unpaid. 
A vessel is said to be overdue when she has not 
reached her destination at the time when she might 
ordinarily have been expected to arrive. 
Overflowed lands. Those that are covered by nonnavi
gable waters (not including lands between high and low 
water mark of navigable streams or bodies of water, nor 
lands covered and uncovered by ordinary daily ebb and 
flow of normal tides of navigable waters). 
Overhaul. To inquire into; to review; to disturb. To 
examine thoroughly, as machinery, with a view to re
pairs. 
Overhead. All administrative or executive costs inci
dent to the management, supervision, or conduct of the 
capital outlay, or business; distinguished from "operat
ing charges," or those items that are inseparably con
nected with the productive end and may be seen as the 
work progresses, and are the subject of knowledge from 
observation. Continuous expenses of a business; the 
expenses and obligations incurred in connection with 
operation; expenses necessarily incurred in organiza
tion, office expenses, engineering, inspection, supervi
sion, and management during construction; and general 
expenditures in financial or industrial enterprise which 
cannot be attributed to any one department or product, 
excluding cost of materials, labor, and selling. Guillot v.

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State Highway Commission of Montana, 102 Mont. 149, 
56 P.2d 1072, 1075. 
Any cost not specifically or directly associated with 
the production of identifiable goods and services. Some
times called "burden" or "indirect costs" and, in Britain, 
"oncosts." Frequently limited to manufacturing over
head. 
Overhernissa /owv�rh�rnis�/. In Saxon law, contumacy 
or contempt of court. 
Over-insurance. See Double insurance. 
Overissue. To issue in excessive quantity; to issue in 
excess of fixed legal limits. Thus, "overissued stock" of 
a corporation is capital stock issued in excess of the 
amount limited and prescribed by the charter or certifi
cate of incorporation. U.C.C. § 8-104(2). See also Over
subscription. 
Overload. To cause to bear too heavy a burden; to load 
too heavily. 
Overlying right. Right of owner of land to take water 
from ground underneath for use on his land within 
basin or watershed. Right is based on ownership of land 
and is appurtenant thereto. City of Pasadena v. City of 
Alhambra, 33 Ca1.2d 908, 207 P.2d 17, 28. 
Overplus. What is left beyond a certain amount; the 
residue; the surplus; the remainder of a thing. 
Overrate. In its strictest signification, a rating by way 
of excess and not · one which ought not to have been 
made at all. 
Overreaching. In connection with commercial and con
sumer transactions, is that which results from an in
equality of bargaining power or other circumstances in 
which there is an absence of meaningful choice on the 
part of one of the parties. Leprino v. Intermountain 
Brick Co., Colo. 759 P.2d 835, 836; Hertz Corp. v. Attor
ney General of New York, 136 Misc.2d 420, 518 N.Y.S.2d 
704, 708. See also Adhesion contract; Unconscionabili ty. 
Overreaching clause. In a resettlement, a clause which 
saves the powers of sale and leasing annexed to the 
estate for life created by the original settlement, when it 
is desired to give the tenant for life the same estate and 
powers under the resettlement. The clause is so called 
because it provides that the resettlement shall be over
reached by the exercise of the old powers. If the reset
tlement were executed without a provision to this effect, 
the estate of the tenant for life and the annexed powers 
would be subject to any charges for portions, etc., cre
ated under the original settlement. 
Override. An estate carved out of working interest 
under an oil or gas lease. Commissions paid to manag
ers on sales made by subordinates. Provision in real 
estate brokers listing agreement giving him right to 
certain commission for a reasonable period of time after 
expiration of listing in event owner sells to purchaser 
with whom broker negotiated during term of listing. 
Overriding royalty. As applied to an existing oil and 
gas lease is a given percentage of the gross production 
payable to some person other than the lessor or persons 
11 04 
claiming under him. Royalty interest carved out of 
working interest created by oil and gas lease, and is 
interest in oil and gas produced at surface free of ex
pense of production and its outstanding characteristic is 
that its duration is limited by duration of lease under 
which it is created. Cline v. Angle, 216 Kan. 328, 532 
P.2d 1093, 1097. 
Overrule. To supersede; annul; reverse; make void; 
reject by subsequent action or decision. A judicial deci
sion is said to be overruled when a later decision, ren
dered by the same court or by a superior court in the 
same system, expresses a judgment upon the same ques
tion of law directly opposite to that which was before 
given, thereby depriving the earlier opinion of all au
thority as a precedent. The term is not properly applied 
to conflicting decisions on the same point by co-ordinate 
or independent tribunals. It also signifies that a majori
ty of the judges of a court have decided against the 
opinion of the minority, in which case the minority 
judges are said to be overruled. See Reverse; Vacate. 
To refuse to sustain, or recognize as sufficient, an 
objection made in the course of a trial, as to the intro
duction of particular evidence, etc. 
Overs. In the meat packing business, the increase in the 
weight of meat resulting from salt put on it. 
Oversamessa. In old English law, a forfeiture for con
tempt or neglect in not pursuing a malefactor. 
Over sea. Beyond the sea; outside the limits of the state 
or country. See Beyond the seas. 
Overseer /6wv�rsi(y�)r/owv�rsiy�r/. A superintendent 
or supervisor; a public officer whose duties involve 
general superintendence of routine affairs. Member of 
a University board. See also Regent. 
Overseers of highways. The name given, in some of 
the states, to a board of officers of a city, township, or 
county, whose special function is the construction and 
repair of the public roads or highways. 
Oversubscription. Condition which exists when there 
are more orders or subscriptions for corporate stock 
than can be issued. See also Overissue. 
Overt. Open; manifest; public; issuing in action, as 
distinguished from that which rests merely in intention 
or design. 
Market overt. See Market. 
Overt act. An open, manifest act from which criminali
ty may be implied. An outward act done in pursuance 
and manifestation of an intent or design. An open act, 
which must be manifestly proved. 
An overt act essential to establish an attempt to 
commit a crime is an act done to carry out the intention, 
and it must be such as would naturally effect that result 
unless prevented by some extraneous cause. It must be 
something done that directly moves toward the crime, 
and brings the accused nearer to its commission than 
mere acts of preparation or of planning, and will appar
ently result, in the usual and natural course of events, if

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not hindered by extraneous causes, in the commission of 
the crime itself. 
In reference to the crime of treason, and the provision 
of the federal Constitution that a person shall not be 
convicted thereof unless on the testimony of two wit
nesses to the same "overt act," the term means a step, 
motion, or action really taken in the execution of a 
treasonable purpose, as distinguished from mere words, 
and also from a treasonable sentiment, design, or pur
pose not issuing in action. It is an act in furtherance of 
the crime. One which manifests the intention of the 
traitor to commit treason. 
An overt act which will justify the exercise of the 
right of self-defense is such as would manifest to the 
mind of a reasonable person a present intention to kill 
him or do him great bodily harm. 
An overt act which completes crime of conspiracy to 
violate federal law is something apart from conspiracy 
and is an act to effect the object of the conspiracy, and 
need be neither a criminal act, nor crime that is ob ject 
of conspiracy, but must accompany or follow agreement 
and must be done in furtherance of object of agreement. 
Marino v. United States, C.C.A.Cal., 91 F.2d 691, 694, 
695. 
Overtake. To come or catch up with in a course of 
motion. Ringwald v. Beene, 170 Tenn. 11 6, 92 S.W.2d 
411, 413. To catch up with and pass. 
Over-the-counter market. Refers to the broad securi
ties market consisting of brokers who purchase or sell 
securities by computer hook-up or telephone rather than 
through the facilities of a securities exchange. At one 
time completely unorganized, the over-the-counter mar
ket is now relatively organized with computerized quota
tion and transaction reporting services. See NASD; 
NASDAQ. 
Overtime. After regular working hours; beyond the 
regular fixed hours. 
Overtime wage. Portion of wages paid employee for 
services rendered beyond regularly fixed working hours. 
Overture. An opening; a proposal. 
Overt word. An open, plain word, not to be misunder
stood. 
Owe. To be bound to do or omit something, especially to 
pay a debt. May also refer to a moral or social obli
gation. 
Owelty / 6w;}ltiy /. Equality; an equalization charge. 
This word is used in law in several compound phrases, 
as fo llows: 
Owelty of exchange. A sum of money given, when two 
persons have exchanged lands, by the owner of the less 
valuable estate to the owner of the more valuable, to 
equalize the exchange. 
Owelty of partition. A sum of money paid by one of two 
coparceners or co-tenants to the other, when a partition 
has been effected between them, but, the land not being 
susceptible of division into exactly equal shares, such 
OWNER 
payment is required to make the portions respectively 
assigned to them of equal value. The power to grant 
owelty has been exercised by the courts of equity from 
time immemorial. 
Owelty of services. In the feudal law, the condition 
obtaining when there is lord, mesne, and tenant, and the 
tenant holds the mesne by the same service that the 
mesne holds over the lord above him. 
Owing. Unpaid. A debt, for example, is owing while it 
is unpaid, and whether it be due or not. 
Owling /aw(;})lilJ/. In English law, the offense of trans
porting wool or sheep out of the kingdom; so called from 
its being usually carried on in the night. 4 Bl.Comm. 
154. 
Own. To have a good legal title; to hold as property; to 
have a legal or rightful title to; to have; to possess. 
Owner. The person in whom is vested the ownership, 
dominion, or title of property; proprietor. He who has 
dominion of a thing, real or personal, corporeal or incor
poreal, which he has a right to enjoy and do with as he 
pleases, even to spoil or destroy it, as far as the law 
permits, unless he be prevented by some agreement or 
covenant which restrains his right. 
The term is, however, a nomen generalissimum, and 
its meaning is to be gathered from the connection in 
which it is used, and from the subject-matter to which it 
is applied. The primary meaning of the word as applied 
to land is one who owns the fee and who has the right to 
dispose of the property, but the term also includes one 
having a possessory right to land or the person occupy
ing or cultivating it. 
The term "owner" is used to indicate a person in 
whom one or more interests are vested for his own 
benefit. The person in whom the interests are vested 
has "title" to the interests whether he holds them for 
his own benefit or for the benefit of another. Thus the 
term "title," unlike "ownership," is a colorless word; to 
say without more that a person has title to certain 
property does not indicate whether he holds such prop
erty for his own benefit or as trustee. Restatement, 
Second, Trusts, § 2, Comment (d); Restatement of Prop
erty, § 10. 
See also Ownership. 
Beneficial owner. See Beneficial owner; also Equitable 
owner, below. 
Equitable owner. One who is recognized in equity as the 
owner of property, because the real and beneficial use 
and title belong to him, although the bare legal title is 
vested in another, e.g., a trustee for his benefit. One 
who has a present title in land which will ripen into 
legal ownership upon the performance of conditions 
subsequent. There may therefore be two "owners" in 
respect of the same property, one the nominal or legal 
owner, the other the beneficial or equitable owner. See 
also Beneficial owner. 
General and beneficial owner. The person whose inter
est is primarily one of possession and enjoyment in

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OWNER 
contemplation of an ultimate absolute ownership;-not 
the person whose interest is primarily in the enforce
ment of a collateral pecuniary claim, and does not 
contemplate the use or enjoyment of the property as 
such. See also Beneficial owner. 
General owner. He who has the primary or residuary 
title to it; as distinguished from a special owner, who 
has a special interest in the same thing, amounting to a 
qualified ownership, such, for example, as a bailee's lien. 
One who has both the right of property and of posses
sion. 
Joint owners. Two or more persons who jointly own and 
hold title to property, e.g., joint tenants, and also part
ners and tenants in common. In its most comprehen
sive sense, the term embraces all cases where the prop
erty in question is owned by two or more persons regard
less of the special nature of their relationship or how it 
came into being. An estate by entirety is a "joint 
ownership" of a husband and wife as at common law 
notwithstanding legislative enactments touching joint 
tenancy. Cullum v. Rice, 236 Mo.App. 11 13, 162 S.W.2d 
342, 344. See also Joint estate; Tenancy. 
Legal owner. One who is recognized and held respon
sible by the law as the owner of property. In a more 
particular sense, one in whom the legal title to real 
estate is vested, but who holds it in trust for the benefit 
of another, the latter being called the "equitable" own
er. 
Part owners. Joint owners; co-owners; those who have 
shares of ownership in the same thing. See Joint own
ers, above. 
Record owner. This term, particularly used in statutes 
requiring notice of tax delinquency or sale, means the 
owner of record, not the owner described in the tax roll; 
the owner of the title at time of notice. 
Reputed owner. One who has to all appearances the 
title to, and possession of, property; one who, from all 
appearances, or from supposition, is the owner of a 
thing. He who has the general credit or reputation of 
being the owner or proprietor of goods. 
Riparian owner. See Riparian. 
Sole and unconditional owner. An expression common
ly used in fire insurance policies, in which the word 
"sole" means that no one else has any interest in the 
property as owner, and "unconditional" means that the 
quality of the estate is not limited or affected by any 
condition. To be "unconditional and sole," the interest 
or ownership of the insured must be completely vested, 
not contingent or conditional, nor in common or jointly 
with others, but of such nature that the insured must 
alone sustain the entire loss if the property is destroyed; 
and this is so whether the title is legal or equitable. It 
is sufficient to satisfy the requirements of "sole and 
unconditional ownership" that the insured is the sole 
equitable owner and has the full equitable title. It is 
enough that the insured is equitably entitled to immedi
ate and absolute legal ownership. The term contem-
11 06 
plates beneficial and practical proprietorship and not 
necessarily technical title. 
Special owner. One who has a special interest in an 
article of property, amounting to a qualified ownership 
of it, such, for example, as a bailee's lien; as distin
guished from the general owner, who has the primary or 
residuary title to the same thing. Some person holding 
property with the consent of, and as representative of, 
the actual owner. 
Ownership. Collection of rights to use and enjoy proper
ty, including right to transmit it to others. Trustees of 
Phillips Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d 
665, 673. The complete dominion, title, or proprietary 
right in a thing or claim. The entirety of the powers of 
use and disposal allowed by law. 
The right of one or more persons to possess and use a 
thing to the exclusion of others. The right by which a 
thing belongs to some one in particular, to the exclusion 
of all other persons. The exclusive right of possession, 
enjoyment, and disposal; involving as an essential at
tribute the right to control, handle, and dispose. 
Ownership of property is either absolute or qualified. 
The ownership of property is absolute when a single 
person has the absolute dominion over it, and may use it 
or dispose of it according to his pleasure, subject only to 
general laws. The ownership is qualified when it is 
shared with one or more persons, when the time of 
enjoyment is deferred or limited, or when the use is 
restricted. Calif.Civil Code, §§ 67S-680. 
There may be ownership of all inanimate things 
which are capable of appropriation or of manual deliv
ery; of all domestic animals; of all obligations; of such 
products of labor or skill as the composition of an 
author, the goodwill of a business, trademarks and signs, 
and of rights created or granted by statute. Calif. Civil 
Code, § 655. 
In connection with burglary, "ownership" means any 
possession which is rightful as against the burglar. 
See also Equitable ownership; Exclusive ownership; 
Hold; Incident of ownership; Interest; Interval ownership; 
Ostensible ownership; Owner; Possession; Title. 
Oxfild /6ksfild/. In old English law, a restitution an
ciently made by a hundred or county for any wrong done 
by one that was within the same. 
Oxgang. In old English law, as much land as an ox 
could till. A measure of land of uncertain quantity. In 
the north of England a division of a carucate. Accord
ing to some, fifteen acres. 
Oyer / 6y�r / . In old English practice, hearing; the hear
ing a deed read, which a party sued on a bond, etc., 
might pray or demand, and it was then read to him by 
the other party; the entry on the record being, "et ei 
legitur in hrec verba" (and it is read to him in these 
words). 3 Bl.Comm. 299. 
A copy of a bond or specialty sued upon, given to the 
opposite party, in lieu of the old practice of reading it. 
Oyer and terminer / 6y�r �n t�rm�n�r /. A half French 
phrase applied in England to the assizes, which are so

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p
P.A. Professional Association.
Paage /pey�j/ In old English law, a toll for passage
through another's land. The same as "pedage."
PAC. Political Action Committee. Committees, clubs,
associations or other groups of persons formed to receive
contributions for use in election campaigns. The orga
nization, registration, reporting, and other activities of
such organizations is regulated by federal and state
laws. See e.g., 2 V.S.C.A. § 431 et seq.
Pacare /p�keriy/. L. Lat. To pay.
Pacatio /p�keysh(iy)ow /. Payment.
Pace. A measure of length containing two feet and a
half, being the ordinary length of a step. The geo
metrical pace is five feet long, being the length of two
steps, or the whole space passed over by the same foot
from one step to another.
Paceatur /peysiyeyt�r/. Lat. Let him be freed or dis
charged.
Pacification. The act of making peace between two
hostile or belligerent states; reestablishment of public
tranquillity.
Pacifist. One who seeks to maintain peace and to abol
ish war. One who refuses or is unwilling for any pur
pose to bear arms because of conscientious considera
tions, and who is disposed to encourage others in such
refusal. V. S. v. Schwimmer, Ill., 279 V.S. 644, 49 S.Ct.
448, 451, 73 L.Ed. 889. A conscientious objector.
Paci sunt maxime contraria vis et injuria /peysay s�nt
mreks�miy k�ntreriy� vis et �njuriy�/. Violence and
injury are the things chiefly hostile to peace.
Pack. To decide by false appearances; to counterfeit; to
delude; to put together in sorts with a fraudulent de
sign. To pack a jury is to use unlawful, improper, or
deceitful means to have the jury made up of persons
favorably disposed to the party so contriving, or who
have been or can be improperly influenced to give the
verdict he seeks. The term imports the improper and
corrupt selection of a jury sworn and impaneled for the
trial of a cause.
Package. A bundle put up for transportation or com
mercial handling; a thing in form to become, as such, an
article of merchandise or delivery from hand to hand.
A parcel is a small package; "parcel" being the diminu
tive of "package." Each of the words denotes a thing in
commercial world, it means a shipping package. See
also Parcel.
Original package. See Original.
Packed parcels. The name for a consignment of goods,
consisting of one large parcel made up of several small
ones (each bearing a different address), collected from
different persons by the immediate consignor (a carrier),
who unites them into one for his own profit, at the
expense of the railway by which they are sent, since the
railway company would have been paid more for the
carriage of the parcels singly than together.
Packing list. Document which contains the contents,
weight and other information concerning the package to
be shipped. It accompanies the package and is available
for inspection.
Pact. A bargain; compact; agreement. An agreement
between two or more nations or states usually less
elaborate than a treaty but nearly equivalent thereto.
See also Compact; Pactum; Treaty.
Nude pact. A translation of the Latin "n udum pactum, "
a bare or naked pact, that is, a promise or agreement
made without any consideration on the other side, which
is therefore not enf orceable.
Obligatory pact. In civil law, an informal obligatory
declaration of consensus, which the Roman law refused
to acknowledge.
Pact de non alienando /prekt diy non eyliy�nrendow/.
An agreement not to alienate incumbered (particularly
mortgaged) property. This stipulation, sometimes found
in mortgages made in Louisiana, and derived from the
Spanish law, binds the mortgagor not to sell or incum
ber the mortgaged premises to the prejudice of the
mortgagee; it does not avoid a sale made to a third
person, but enables the mortgagee to proceed directly
against the mortgaged property in a proceeding against
the mortgagor alone and without notice to the purchas
er.
Pacta conventa qure neque contra leges neque dolo
malo inita sunt omni modo observanda sunt /prekt�
k�nvent� kwiy nekwiy kontr� liyjiyz nekwiy dowlow
mrelow in�t� s�nt omnay mowdow obz�rvrend� s�nt/.
Agreements which are not contrary to the laws nor
entered into with a fraudulent design are in all respects
to be observed.
form suitable for transportation or handling, or sale Pacta dant legem contractui /prekt� drent liyj�m
from hand to hand. As ordinarily understood in the k�ntrrektyuway/. The stipulations of parties constitute
1108

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1109 
the law of the contract. Agreements give the law to the 
contract. 
Pacta privata juri publico derogare non possunt 
Iprekt� prayveyt� juray p�bl�kow dir�geriy non pos�nt/. 
Private compacts cannot derogate from public right. 
Pacta qure contra leges constitutionesque, vel contra 
bonos mores fiunt, nullam vim habere, indubitati 
juris est Iprekt� kwiy kontr� liyjiyz konst�t(y)uwshiy:mi
yzkwiy, vel kontra bownows moriyz fay�nt, n;}bm vim 
h�biriy, indyUwb�teytay jur�s est/. That contracts 
which are made against law or against good morals have 
no force is a principle of undoubted law. 
Pacta qure turpem causam continent non sunt obser
vanda Iprekt� kwiy t;}rp�m koz�m kont�n�nt non s:)nt 
obz�rvrend�/. Agreements founded upon an immoral 
consideration are not to be observed. 
Pacta sunt servanda Iprekt� s:)nt s:)rvrend�/. Agree
ments (and stipulations) of the parties (to a contract) 
must be observed. 
Pactio Ipreksh(iy)ow/. Lat. In the civil law, a bargain
ing or agreeing of which pactum (the agreement itself) 
was the result. It is used, however, as the synonym of 
"pactum. " 
Pactional Ipreksh�n�l/. Relating to or generating an 
agreement; by way of bargain or covenant. 
Pactions Ipreksh�nz/. In international law, contracts 
between nations which are to be performed by a single 
act, and of which execution is at an end at once. 
Pactis privatorum juri publico non derogatur Iprekt�s 
prayv�tor�m juray p;}bl�kow non dir�geyt�r I. Private 
contracts do not derogate from public law. 
Pactitious Iprektish�s/. Settled by covenant. 
Pac�o aliquod licitum est, quod sine pacto non admit
titur Iprektow rel�kwod lis�t�m est kwod sayniy prektow 
non �dmid�t�r /. By special agreement things are al
lowed which are not otherwise permitted. 
Pactum Iprekt�m/. Lat. Civil law. A pact. An agree
ment or convention without specific name, and without 
consideration, which, however, might, in its nature, pro
duce a civil obligation. 
Nudum pactum. A bare or naked pact or agreement; a 
promise or undertaking made without any consideration 
for it, and therefore not enforceable. 
Roman law. With some exceptions, those agreements 
that the law does not directly enforce, but which it 
recognizes only as a valid ground of defense, were called 
"pacta. " Those agreements that are enforced, in other 
words, are supported by actions, are called "contractus. " 
The exceptions are few, and belong to a late period. 
Pactum commissorium Iprekt�m kom�soriy�m/. An 
agreement of forfeiture. 
Pactum constitutre pecunire Iprekt�m konst�t(y)uwtiy 
p�kyUwniyiy/. In the Civil law, an agreement by which 
a person appointed to his creditor a certain day, or a 
certain time, at which he promised to pay; or term may 
PAINS AND PENALTIES, BILLS OF 
be defined as simply an agreement by which a person 
promises a creditor to pay him. There is a striking 
conformity between the pactum constitutre pecunire, as 
above defined, and our indebitatus assumpsit. 
Pactum de non alienando Iprekt�m diy non ey
liy�nrendow I. A pact or agreement binding the owner of 
property not to alienate it, intended to protect the 
interests of another; particularly an agreement by the 
mortgagor of real estate that he will not transfer the 
title to a third person until after satisfaction of the 
mortgage. A clause inserted in mortgages in Louisiana 
to secure to the mortgage creditor the right to foreclose 
his mortgage by executory process directed solely 
against the mortgagor, and to give him the right to seize 
and sell the mortgaged property, regardless of any sub
sequent alienations. Shields v. Schiff, 124 U.S. 351,355, 
8 S.Ct. 510, 31 L.Ed. 445. 
Pactum de non petendo Iprekt�m diy non p�tendow/. 
In the civil law, an agreement not to sue. A simple 
convention whereby a creditor promises the debtor that 
he will not enforce his claim. 
Pactum de quota litis Iprekt�m diy kwowt� layt�s/. In 
the civil law, an agreement by which a creditor prom
ised to pay a portion of a debt difficult to recover to a 
person who undertook to recover it. 
Padder. A robber; a f oot highwayman; a foot-pad. 
Pagarchus /p�gark�s/. A petty magistrate of a pagus or 
little district in the country. 
Pagus /peyg�s/. A county. 
Paid-in-capital. Money or property given to a corpora
tion in exchange for the corporation's capital stock; as 
distinguished from capital obtained from the earnings of 
or donations to the corporation. See also Surplus (Paid
in surplus). 
Paid-in-surplus. The amount paid for the stock of a 
corporation in excess of its par or stated value. See 
Capital (Capital surplus); Paid.;in-capital; Surplus (Paid-in 
surplus). 
Paid-up insurance. Insurance coverage for which no 
additional premiums are due. 
Paid-up stock. Shares of stock for which full payment 
has been received by the corporation. 
Pain and suffering. Term used to describe not only 
physical discomfort and distress but also mental and 
emotional trauma which are recoverable as elements of 
damage in torts. Recovery for pain and suffering is 
restricted by statute in certain states. See Cap. 
Paine forte et dure /peyn fort ey dyur/. See Peine fort 
et dure. 
Pains and penalties, bills of. The name given to acts 
of parliament to attaint particular persons of treason or 
felony, or to inflict pains and penalties beyond or con
trary to the common law, to serve a special purpose. 
They are in fact new laws, made pro re nata. See also 
Bill of pains and penalties.

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PAIRING-OFF 
Pairing-off. In the practice of legislative bodies, a spe
cies of negative proxies, by which two members, who 
belong to opposite parties or are on opposite sides with 
regard to a given question, mutually agree that they will 
both be absent from voting, either for a specified period 
or when a division is had on the particular question. By 
this mutual agreement a vote is neutralized on each side 
of the question, and the relative numbers on the division 
are precisely the same as if both members were present. 
It is said to have originated in the house of commons in 
Cromwell's time. 
Pais, pays /pey(s)/. Fr. The country; the neighbor
hood. 
A trial per pais signifies a trial by the country; that 
is, by jury. 
An assurance by matter in pais is an assurance trans
acted between two or more private persons "in the 
country;" that is, upon the very spot to be transferred. 
Matter in pais signifies matter of fact, probably be
cause matters of fact are triable by the country; i.e., by 
jury. 
Estoppels in pais are estoppels by conduct, as distin
guished from estoppels by deed or by record. 
Conveyances in pais are ordinary conveyances be
tween two or more persons in the country; i.e., upon the 
land to be transferred. 
See also In pais; Matter in pais. 
Palace court. See Court of the Steward and Marshal. 
Palam /prel�m/. Lat. In the civil law, openly; in the 
presence of many. 
Palimony. Term has meaning similar to "alimony" 
except that award, settlement or agreement arises out of 
nonmarital relationship of parties (i.e. nonmarital part
ners). It has been held that courts should enforce ex
press contracts between nonmarital partners except to 
the extent the contract is explicitly founded on the 
consideration of meretricious sexual services, despite 
contention that such contracts violate public policy; 
that in the absence of express contract, the court should 
inquire into the conduct of the parties to determine 
whether that conduct demonstrates implied contract, 
agreement of partnership or joint venture, or some other 
tacit understanding between the parties, and may also 
employ the doctrine of quantum meruit or equitable 
remedies such as constructive or resulting trust, when 
warranted by the facts of the case. Marvin v. Marvin, 
557 P.2d 106, 18 Ca1.3d 660, 134 Cal.Rptr. 815. 
Pallio cooperire /preliyow kowo(w)p�rayriy/. In old 
English law, an ancient custom, where children were 
born out of wedlock, and their parents afterwards inter
married. The children, together with the father and 
mother, stood under a cloth extended while the mar
riage was solemnized. It was in the nature of adoption. 
The children were legitimate by the civil, but not by the 
common, law. They were called "mantle children" in 
Germany, France, and Normandy. The custom also 
existed in Scotland. 
1110 
Palmarium /prelmeriy�m /. In civil law, a conditional 
fee for professional services in addition to the lawful 
charge. 
Palmer Act. A name given to the English statute 19 & 
20 Vict., c. 16, enabling a person accused of a crime 
committed out of the jurisdiction of the central criminal 
court, to be tried in that court. 
Palmistry / pam�striy / . The practice of telling fortunes 
by a feigned interpretation of the lines and marks on 
the hand. Also, a trick with the hand. 
Palm off. Refers to the conduct of selling goods as the 
goods of another or doing business as the business of 
another such that the public is misled by the conduct 
and believes it is purchasing the goods of another or 
doing business with someone other than the actual sell
er. Laser Industries, Ltd. v. Eder Instrument Co., Inc., 
D.C.IlI., 573 F.Supp. 987, 991. 
Palm prints. The impression made by a person's palm 
on a smooth surface. They may be used for purpose of 
identification in criminal cases. 
Palpable. Easily perceptible, plain, obvious, readily visi
ble, noticeable, patent, distinct, manifest. People v. 
Hughey, 382 Ill. 136, 47 N.E.2d 77, 80. 
Palsgraf Rule. The rule derived from the case of Pals
graf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, to 
the effect that one who is negligent is liable only for the 
harm or injury which is within the orbit of foreseeability 
and not for every injury which follows from his negli
gence. See also Foreseeability. 
Pandects /prendekts/. A compilation of Roman law, 
consisting of selected passages from the writings of the 
most authoritative of the older jurists, methodically 
arranged, prepared by Tribonian with the assistance of 
sixteen associates, under a commission from the emper
or Justinian. This work, which is otherwise called the 
"Digest," because in his compilation the writings of the 
jurists were reduced to order and condensed quasi diges
tire, comprises fifty books, and is one of the four great 
works composing the Corpus Juris Civilis. It was first 
published in A.D. 533, when Justinian gave to it the 
force of law. 
Pander, n. One who caters to the lust of others; a male 
bawd, a pimp, or procurer. 
Pander, v. To pimp; to cater to the gratification of the 
lust of another. To entice or procure a female, by 
promises, threats, fraud, or artifice, to enter any place in 
which prostitution is practiced, for the purpose of prosti
tution. Pandering is established when evidence shows 
that accused has succeeded in inducing his victim to 
become engaged in prostitution. People v. Charles, 218 
Cal.App.2d 812, 32 Cal.Rptr. 653, 658. 
Pandering of obscenity. Business of purveying textual, 
pictorial or graphic matter openly advertised to appeal 
to prurient interest of customers, or potential customers, 
by either blatant and explicit advertising or subtle and 
sophisticated advertising. U.S. v. Baranov, 418 F.2d 
1051, 1053. Such conduct is not protected by the First

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1111 
Amendment. Ginsburg v. United States, 383 U.S. 463, 
86 S.Ct. 942, 16 L.Ed.2d 31. 
Panderer. One who solicits for prostitute. A pimp. 
P & L. See Profit (Profit and loss); Profit and loss 
statement. 
Panel. A list of jurors summoned to serve in a particu
lar court, or for the trial of a particular action. Group 
of judges (smaller than the entire court) which decides a 
case; e.g. a nine member appellate court might be divid
ed into three, three member panels with each panel 
hearing and deciding cases. May also refer to members 
of a commission. 
See also Impanel; Jury-list; Jury panel. 
Prepaid legal services. "Open panel" legal services is a 
plan in which legal services are paid for in advance 
(usually by a type of insurance) and members can choose 
their own lawyer. Under a "closed panel", however, all 
legal services are performed by a group of attorneys 
previously selected by the insurer, union, etc. See Pre
paid legal services. 
Pannellation /pren�leysh:m/. The act of impaneling a 
jury. 
Papal supremacy. The supremacy which the Pope 
claimed not only over the Emperor of the Holy Roman 
Empire, but over all other Christian princes. The theo
ry was that they stood to the Pope as feudal vassals to a 
supreme lord; as such, the Pope claimed the right to 
enforce the duties due to him from his feudal subor
dinates through an ascending scale of penalties culmi
nating in the absolution of the prince's subjects from the 
bonds of allegiance, and in the disposition of the sover
eign himself. The papal supremacy was overthrown in 
England by acts of the Parliament which met in 1529 
and was dissolved in 1536, ending in the Act of Su
premacy which substituted the King for the Pope. 
Paper. A written or printed document or instrument. 
A document filed or introduced in evidence in a suit at 
law, as, in the phrase "papers in the case" and in 
"papers on appeal." Any writing or printed document, 
including letters, memoranda, legal or business doc
uments, and books of account, as in the constitutional 
provision which protects the people from unreasonable 
searches and seizures in respect to their "papers" as 
well as their houses and persons. A written or printed 
evidence of debt, particularly a promissory note or a bill 
of exchange, as in the phrases "accommodation paper" 
and "commercial paper" (q.v.). See also Bearer paper; 
Chattel paper; Commercial paper; Document; Instrument. 
Paper money. Bills drawn by a government against its 
own credit, engaging to pay money, but which do not 
profess to be immediately convertible into specie, and 
which are put into compulsory circulation as a substi
tute for coined money. See Federal reserve notes; Legal 
tender. 
Paper patent. Term used derisively to refer to a dis
covery or invention which has never been put to com-
PARALLEL CITATION 
mercial use nor recognized in the trade. Coltman v. 
Colgate-Palmolive-Peet Co., C.C.A.lnd., 104 F.2d 508. 
Paper profit (or loss). An unrealized profit (or loss) on a 
security or other investment still held. Paper profits (or 
losses) become realized profits (or losses) only upon the 
sale of the security. 
Paper standard. A money system based on pure paper 
which is not convertible into gold or other metal of 
intrinsic value. 
Papian popprean law. See Lex Papia Popprea. 
Par. In commercial law, equal; equality. An equality 
subsisting between the nominal or face value of a bill of 
exchange, share of stock, etc., and its actual selling 
value. When the values are thus equal, the instrument 
or share is said to be "at par;" if it can be sold for more 
than its nominal worth, it is "above par;" if for less, it is 
"below par." See also Par of exchange; Par value. 
Any standard or norm of conduct which is expected of 
people. 
Parachronism /p�rrekr�niz�m/. Error in the computa
tion of time. 
Paracium /p�reysh(iy)�m/. In old English law, the ten
ure between parceners, viz., that which the youngest 
owes to the eldest without homage or service. 
Parage /prer�j/ or paragium /p�reyj(iy)�m/. In old Eng
lish law, an equality of blood or dignity, but more 
especially of land, in the partition of an inheritance 
between co-heirs. More properly, however, an equality 
of condition among nobles, or persons holding by a noble 
tenure. Thus, when a fief is divided among brothers, 
the younger hold their part of the elder by parage; i.e., 
without any homage or service. Term from which "dis
paragement", meaning inequality, is derived. Also the 
portion which a woman may obtain on her marriage. 
Paragraph. A distinct part of a discourse or writing; 
any section or subdivision of writing or chapter which 
relates to particular point, whether consisting of one or 
many sentences. 
A part or section of a statute, pleading, affidavit, will, 
trust, etc., which contains one article, the sense of which 
is complete. 
Fed.R.Civil P. 1O(b) provides that: "All averments of 
claim or defense shall be made in numbered paragraphs, 
the contents of each of which shall be limited as far as 
practicable to a statement or of a single set of circum
stances; and a paragraph may be referred to by number 
in all succeeding pleadings ... . " 
Paralegal. A person with legal skills, but who is not an 
attorney, and who works under the supervision of a 
lawyer in performing various tasks relating to the prac
tice of law or who is otherwise authorized by law to use 
those legal skills. Paralegal courses leading to degrees 
in such specialty are now afforded by many schools. 
Parallel citation. A citation reference to the same case 
printed in two or more different reports. See e.g. the 
case citation to U.S. Supreme Court decisions in this 
Dictionary.

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PARAMOUNT 
Paramount. Above; upwards. Higher; superior; pre
eminent; of the highest rank or nature. 
Paramount equity. An equitable right or claim which 
is prior, superior, or preferable to that with which it is 
compared. 
Paramount title. In the law of real property, properly 
one which is superior to the title with which it is 
compared, in the sense that the former is the source or 
origin of the latter. It is, however, frequently used to 
denote a title which is simply better or stronger than 
another, or will prevail over it. But this use is scarcely 
correct, unless the superiority consists in the seniority of 
the title spoken of as "paramount ." 
Paramour. In general, a lover; but term is used com
monly in connection with a person of either sex in an 
adulterous alliance. 
Paranoia Iprer;;)noy;;)/. See Insanity. 
Paraph. A flourish at the end of a signature. In the 
Middle Ages this was a sort of rude safeguard against 
forgery. Also, in Louisiana, the signature itself, such as 
the official signature of a notary. 
Parapherna Iprer;;)f;}rn;;)/. In the civil law, goods 
brought by wife to husband over and above her dowry 
(dos). 
Paraphernalia Iprer;;)f;;)rneyl(i)y;;)/. The separate proper
ty of a married woman, other than that which is includ
ed in her dowry, or dos. Those goods which a woman is 
allowed to have, after the death of her husband, besides 
her dower, consisting of her apparel and ornaments, 
suitable to her rank and degree. Those goods which a 
wife could bequeath by her testament. 
In the civil law, the separate property of the wife is 
divided into dotal and extradotal. Dotal property is that 
which the wife brings to the husband to assist him in 
bearing the expenses of the marriage establishment. 
Extradotal property, otherwise called "paraphernal 
property," is that which forms no part of the dowry. It 
is property brought to the marriage by one of the 
spouses. 
Paraphernal property I prer;;)f�rn;;)l prop;;)rdiy I. See Par
aphernaia. 
Paraprofessional. One who assists a professional per
son though not a member of the profession himself; e.g. 
a paralegal (q.v.) who assists a lawyer. 
Parasynexis Iprer;;)s;;)neks;;)s/. In the civil law, a conven
ticle, or unlawful meeting. 
Paratitla Iprer;;)taytb /. In the civil law, notes or ab
stracts prefixed to titles of law, giving a summary of 
their contents. An abbreviated explanation of some 
titles or books of the Code or Digest. 
Paratum habeo Ip;;)reyt;;)m hrebiyow/. Lat. I have him 
in readiness. The return by the sheriff to a capias ad 
respondendum, signifying that he has the defendant in 
readiness to be brought into court. This was a fiction, 
where the defendant was at large. Afterwards he was 
required, by statute, to take bail from the defendant, 
1112 
and he returned cepi corpus and bailbond. But still he 
might be ruled to bring in the body. 
Paratus est verificare Ip;;)reyt;;)s est vehr;;)f;;)keriy/ . Lat. 
He is ready to verify. The Latin form for concluding a 
pleading with a verification (q. v.). 
Paravail Iprer;;)veyl/prer;;)veyl/. Inferior; subordinate. 
In old English law, tenant paravail signified the lowest 
tenant of land, being the tenant of a mesne lord. He 
was so called because he was supposed to make "avail" 
or profit of the land for another. 
Parcel, v. To divide an estate. 
Parcel, n. A small package or bundle. See Package. 
A part or portion of land. A part of an estate. 
"Parcel" as used with reference to land generally means 
a contiguous quantity of land in the possession of an 
owner. United States ex reI. and for Use of Tennessee 
Val. Authority v. Easements and Rights over Certain 
Land in Hamilton County, D.C.Tenn., 259 F.Supp. 377, 
382. A contiguous quantity of land in possession of, 
owned by, or recorded as property of the same claimant 
person or company. Adams Tree Service, Inc. v. Trans
america Title Ins. Co., 20 Ariz.App. 214, 511 P.2d 658, 
662. Term may be synonymous with "lot." 
Parcella terra: I parsel;;) tehriy I. A parcel of land. 
Parcel makers Ipars;;)l meyk;;)rz/. In old English law, 
two officers· in the exchequer who formerly made the 
parcels or items of the escheators' accounts, wherein 
they charged them with everything they had levied for 
the king during the term of their office. 
Parcels. A description of property, formally set forth in 
a conveyance, together with the boundaries thereof, in 
order to provide for easy identification. 
Parcels, bill of. An account of the items composing a 
parcel or package of goods, transmitted with them to the 
purchaser. See, Bill of parcels under Bill. 
Parcenary Ipars;;)nehriy/. The state or condition of 
holding title to lands jointly by parceners, before the 
common inheritance has been divided. 
Parcener Ipars;;)n;;)r/. A joint heir; one who, with oth
ers, holds an estate in co-parcenary (q.v.). Gibson v. 
Johnson, 331 Mo. 1198, 56 S.W.2d 783. 
Parchment. Sheep-skins dressed for writing, so called 
from Pergamus, Asia Minor, where they were invented. 
Used for deeds, and used for writs of summons in Eng
land previous to the Judicature Act of 1875. The skin of 
a lamb, sheep, goat, young calf, or other animal, pre
pared for writing on; also, any of various papers made 
in imitation thereof. 
Parco fracto Iparkow frrektow/. Pound-breach; also 
the name of an old English writ against one who violent
ly breaks a pound and takes beasts which, for some 
trespass done, or some other just cause, were lawfully 
impounded. 
Par delictum Ipar d;;)Ukt�m/. (In pari delicto.) Equal 
guilt.

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1118 
Pardon. An executive action that mitigates or sets aside 
punishment for a crime. An act of grace from govern
ing power which mitigates the punishment the law 
demands for the offense and restores the rights and 
privileges forfeited on account of the offense. Verneco, 
Inc. v. Fidelity & Cas. Co. of New York, 253 La. 721, 219 
So.2d 508, 511. A pardon releases offender from entire 
punishment prescribed for offense and from disabilities 
consequent on his conviction; it reinstates his civilliber
ties. State ex reI. Herman v. Powell, 139 Mont. 583, 367 
P.2d 553, 556. 
The power to pardon for non-federal crimes is general
ly invested in state governors, while the President has 
the power to pardon for federal offenses (Art. II, Sec. 2, 
U.s.C onst.). 
See also Amn esty; Board of pardons; Clemency; Com
mutation; Condonation; Parole; Reprieve. 
Distinguished from amnesty. The distinction between 
amnesty and pardon is one rather of philological inter
est than of legal importance. Knote v. U. S., 95 U.S. 
149, 153, 24 L.Ed. 442, 443. This is so as to their 
ultimate effect, but there are incidental differences of 
importance. They are of different character and have 
different purposes. The one overlooks offense; the oth
er remits punishment. The first is usually addressed to 
crimes against the sovereignty of the state, to political 
offenses, forgiveness being deemed more expedient for 
the public welfare than prosecution and punishment. 
The second condones infractions of the peace of the 
state. Amnesty is usually general, addressed to classes 
or even communities-a legislative act, or under legisla
tion, constitutional or statutory-the act of the supreme 
magistrate. There may or may not be distinct acts of 
acceptance. If other rights are dependent upon it and 
are asserted, there is affirmative evidence of acceptance. 
Burdick v. U. S., 236 U.S. 79, 271, 35 S.Ct. 267, 59 L.Ed. 
476. "Pardon" applies only to the individual, releases 
him from the punishment fixed by law for his specific 
offense, but does not affect the criminality of the same 
or similar acts when performed by other persons or 
repeated by the same person. 
Distinguished from commutation. A pardon, to be effec
tive, must be accepted, Burdick v. U. S., 236 U.S. 79, 35 
S.Ct. 267, 268, 59 L.Ed. 476; but a commutation is 
merely a cessation of the exercise of sovereign authority, 
and does not obliterate guilt nor restore civil rights, and 
need not be accepted by the convict to be operative. A 
commutation is simply a remission of a part of the 
punishment, a substitution of a less penalty for the one 
originally imposed; while a "pardon" avoids or termi
nates punishment for crime. U. S. v. Commissioner of 
Immigration at Port of New York, C.C.A.N.Y., 5 F.2d 
162, 165. 
Distinguished from parole. A "pardon" releases the 
offender from the entire punishment prescribed for the 
offense, and from all the disabilities consequent on his 
conviction, while by a "parole" a convict is merely 
released before the expiration of his term, to remain 
subject during the remainder thereof to supervision by 
PARENS 
the public authority, and to return to imprisonment on 
violation of the condition of the parole. 
Types of Pardons 
Absolute or unconditional pardon. One which frees the 
criminal without any condition whatever. That which 
reaches both the punishment prescribed for the offense 
and the guilt of the offender. It obliterates in legal 
contemplation the offense itself. It goes no further than 
to restore the accused to his civil rights and remit the 
penalty imposed for the particular offense of which he 
was convicted in so far as it remains unpaid. State v. 
Cullen, 14 Wash.2d 105, 127 P.2d 257, 259. 
Conditional pardon. One to which a condition is an
nexed, performance of which is necessary to the validity 
of the pardon. A pardon which does not become opera
tive until the grantee has performed some specific act, 
or where it becomes void when some specific event 
transpires. One granted on the condition that it shall 
only endure until the voluntary doing of some act by the 
person pardoned, or that it shall be revoked by a subse
quent act on his part, as that he shall leave the state 
and never return. 
Executive pardon. See Executive pardon. 
Full pardon. One freely and unconditionally absolving 
party from all legal consequences, direct and collateral, 
of crime and conviction. Warren v. State, 127 Tex.Cr.R. 
71, 74 S.W.2d 1006, 1008. 
General pardon. One granted to all the persons partici
pating in a given criminal or treasonable offense (gener
ally political), or to all offenders of a given class or 
against a certain statute or within certain limits of time. 
But "amnesty" is the more appropriate term for this. It 
may be express, as when a general declaration is made 
that all offenders of a certain class shall be pardoned, or 
implied, as in case of the repeal of a penal statute. See 
Amnesty. 
Partial pardon. That which remits only portion of 
punishment or absolves from only portion of legal conse
quences of crime. Warren v. State, 127 Tex.Cr.R. 71, 74 
S.W.2d 1006, 1008. 
Unconditional pardon. Pardon that frees a prisoner 
without any conditions attached. A full pardon. 
Pardon attorney. Official of Justice Department who 
considers applications for federal pardons and makes 
recommendations for the exercise of Presidential clem
ency. 
Pardoners /pard:m:)rz/. In old English law, persons 
who carried about the pope's indulgences, and sold them 
to any who would buy them. 
Parens /prerimz/pero /. Lat. In Roman law, a parent; 
originally and properly only the father or mother of the 
person spoken of; but also, by an extension of its mean
ing, any relative, male or female, in the line of direct 
ascent. 
uparens" est nomen generale ad omne genus cogna
tionis /prerenz est nowm:)n jen:)reyliy red omniy jiyn:)s

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PARENS PATRLE 
k�gneyshiy6wn�s/ . "Parent" is a name general for ev
ery kind of relationship. 
Parens patrice / prerenz pretriyiy or perenz peytriyiy /. 
"Parens patriae," literally "parent of the country," re
fers traditionally to role of state as sovereign and guard
ian of persons under legal disability, such as juveniles or 
the insane, State of W.Va. v. Chas. PfIzer & Co., C.A. 
N.Y., 440 F.2d 1079, 1089, and in child custody determi
nations, when acting on behalf of the state to protect the 
interests of the child. It is the principle that the state 
must care for those who cannot take care of themselves, 
such as minors who lack proper care and custody from 
their parents. It is a concept of standing utilized to 
protect those quasi-sovereign interests such as health, 
comfort and welfare of the people, interstate water 
rights, general economy of the state, etc. Gibbs v. 
Titelman, D.C.Pa., 369 F.Supp. 38, 54 .• 
Parens patrice originates from the English common 
law where the King had a royal prerogative to act as 
guardian to persons with legal disabilities such as in
fants. In the United States, the parens patrice function 
belongs with the states. 
State attorney generals have parens patrice authority 
to bring actions on behalf of state residents for anti-trust 
offenses and to recover on their behalf. 15 U.S.C.A. 
§ 15c. See also Hart-Scott-Rodino Antitrust Im provement 
Act. 
The use of this power to deprive a person of freedom 
has been limited by recent laws and decisions; e.g. Kent 
v. U. S., 383 U.S. 541, 554-555, 86 S.Ct. 1045, 1054, 16 
L.Ed.2d 84. 
See also Surrogate parent. 
Parent. The lawful father or mother of a person. In 
common and ordinary usage the word comprehends 
much more than mere fact of who was responsible for 
child's conception and birth and is commonly under
stood to describe and refer to person or persons who 
share mutual love and affection with a child and who 
supply child support and maintenance, instruction, disci
pline and guidance. Solberg v. Metropolitan Life Ins. 
Co., 50 Wis.2d 746, 185 N.W.2d 319, 323. 
By statute, "parent" has been defIned to include (1) 
either the natural father or the natural mother of a 
child born of their valid marriage to each other, if no 
subsequent judicial decree has divested one or both of 
them of their statutory coguardianship as created by 
their marriage; (2) either the adoptive father or the 
adoptive mother of a child jointly adopted by them, if no 
subsequent judicial decree has divested one or both of 
them of their statutory coguardianship as created by the 
adoption; (3) the natural mother of an illegitimate child, 
if her position as sole guardian of such a child has not 
been divested by a subsequent judicial decree; (4) a 
child's putative blood parent who has expressly acknowl
edged paternity and contributed meaningfully to the 
child's support; (5) any individual or agency whose 
status as guardian of the person of the child has been 
established by judicial decree. 
1114 
Includes any person entitled to take, or who would be 
entitled to take if the child died without a will, as a 
parent under the Uniform Probate Code by intestate 
succession from the child whose relationship is in ques
tion and excludes any person who is only a stepparent, 
foster parent, or grandparent. Uniform Probate Code, 
§ 1-201(28). 
See also Adoption; Loco parentis; Parens patrice; Surro
gate parent. 
Parentage. Kindred in the direct ascending line. The 
state or condition of being a parent. 
Parental consent. Consent required of minor from par
ent to marry or undertake other legal obligations. 
Parental Kidnapping Prevention Act. Federal law 
which imposes a duty on the states to enforce a child 
custody determination entered by a court of a sister 
state if the determination is consistent with provisions 
of the Act. 28 U.S.C.A. § 1738A. 
Parental liability. By statute in certain states, the 
parents may be held liable up to a specifIed amount for 
damages caused to property of others by their children if 
such damage is found to have resulted from negligent 
control of parent over acts of child. 
Parental rights. The sum total of the rights of the 
parent or parents in and to the child as well as the 
rights of the child in and to the parent or parents. 
Anguis v. Superior Court In and For Maricopa County, 6 
Ariz.App. 68, 429 P.2d 702, 705. The following are 
"parental rights" protected to varying degrees by consti
tution: physical possession of child, which, in case of 
custodial parent, includes day-to-day care and compan
ionship of child; right to discipline child, which includes 
right to inculcate in child parent's moral and ethical 
standards; right to control and manag e minor child's 
earnings; right to control and manage minor child's 
property; right to be supported by adult child; right to 
have child bear parent's name; and right to prevent 
adoption of child without parents' consent. L. A. M. v. 
State, Alaska, 547 P.2d 827, 835. 
Parent-child immunity. In some jurisdictions a parent 
is immune from liability for negligence in an action 
brought by his or her child, though the trend has been 
to abolish or restrict such immunity. 
Parent company or corporation. Company owning 
more than 50 percent of the voting shares, or otherwise 
a controlling interest, of another company, called the 
subsidiary. Compare Holding company. 
Parentela /prer�ntiyl�/. The sum of those persons who 
trace descent from one ancestor. 
In old English law, parentela, or de parentela se tol
lere, signifIed a renunciation of one's kindred and fami
ly. This was, according to ancient custom, done in open 
court, before the judge, and in the presence of twelve 
men, who made oath that they believed it was done for a 
just cause. Mter such abjuration, the person was incap
able of inheriting anything from any of his "elations, 
etc.

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1115 
Parenticide Ip:m�nt�sayd/. One who murders a parent; 
also the crime so committed. 
Parentum est liberos alere etiam nothos Ip�r€mt�m 
est lib�rows �liriy iyshiy�m now(}ows/. It is the duty of 
parents to support their children even when illegit
imate. 
Pares Ipreriyz/perO I. Lat. In old English law, a per
son's peers or equals; as the jury for the trial of causes, 
who were originally the vassals or tenants of the lord, 
being the equals or peers of the parties litigant; and, as 
the lord's vassals judged each other in the lord's courts, 
so the sovereign's vassals, or the lords themselves, 
judged each other in the sovereign's courts. 
Pares curia: Ipreriyz kyuriyiy/. In old English law, 
peers of the court. Vassals who were bound to attend 
the lord's court. 
Paresis Ip�riys�s/prer�s�s/. Progressive general paraly
sis, involving or leading to the form of insanity known 
as "dementia paralytica." Popularly, but not very cor
rectly, called "softening of the brain ." See Ins anity. 
Pares regni Ipreriyz regnay /. Peers of the realm. 
Paria copulantur paribus Ipreriy� kopy�lrent�r 
prer�b�sl . Like things unite with like. 
Paribus sententiis reus absolvitur Iprer�b�s senten
shiy�s riy�s �bzolv�t�r I. Where the opinions are equal 
[where the court is equally divided], the defendant is 
acquitted. 
Pari causa Ipreray koz�/. Lat. With equal right; upon 
an equal footing; equivalent in rights or claims. 
Pari delicto Ipreray d�liktow/. Lat. In equal fault; in a 
similar offense or crime; equal in guilt or in legal fault. 
"Pari delicto" doctrine rests on rule that courts will not 
enforce an invalid contract and that no party can recov
er in any action where it is necessary for him to prove 
an illegal contract in order to make out his case. Neal 
v. Pennsylvania Life Ins. Co., OkL, 480 P.2d 923, 925. 
Under this doctrine transgressor will not be allowed to 
profit from his own wrongdoing and party is barred 
from recovering damages if his losses are substantially 
caused by activities which the law forbade him to en
gage in. Recchion on Behalf of Westinghouse Elec. 
Corp. v. Kirby, D.C.Pa., 637 F.Supp. 1309, 1316. See In 
pari delicto. 
Paries communis Ipreriyiyz k�myuwn �s/. A common 
wall; a party-wall. 
Pari materia Ipreray m�tiri y�/. Lat. Of the same mat
ter; on the same subject; as, laws pari materia must be 
construed with reference to each other. 
Pari-mutuel betting Ipreriy myuwty(u)w�l betiIJ/. A 
form of wagering, generally on the outcome of horse or 
dog races, whereby all bets made on a particular race 
are pooled and then paid, less a management fee, to 
holders of winning tickets. Cramer v. New York State 
Racing Ass'n, 136 A.D.2d 104, 525 N.Y.S.2d 938, 940. 
Such betting is allowed in most states, though it is 
PARITY 
heavily regulated. Cf. New York McKinney's Racing, 
Pari-mutuel Wagering and Breeding Law, § 101 et seq. 
Par in parem imperium non habet Ipar in per�m 
�mpiriy�m non heyb�t/. An equal has no dominion over 
an equaL 
Pari passu Ipreray pres(y)uw/peray peys(y)uw/. Lat. By 
an equal progress; equably; ratably; without prefer
ence. Used especially of creditors who, in marshalling 
assets, are entitled to receive out of the same fund 
without any precedence over each other. 
Pari ratione Ipreray rreshiyowniy/. Lat. For the like 
reason; by like mode of reasoning. 
Paris, declaration of I dekl�reysh�n �v prer�s/. See Dec
laration. 
Parish. In English ecclesiastical law a circuit of ground, 
committed to the charge of one parson or vicar, or other 
minister having cure of souls therein. 1 Bl.Comm. 111. 
The precinct of a parish church, and the particular 
charge of a secular priest. An ecclesiastical division of a 
town, city or district, subject to the ministry of one 
pastor. 
In Louisiana, a territorial governmental division of 
the state corresponding to what is elsewhere called a 
"county." 
Parish apprentice. In old English law, the children of 
parents unable to maintain them could, by law, be 
apprenticed, by the guardians or overseers of their par
ish, to such persons as may be willing to receive them as 
apprentices. Such children were called "parish appren
tices." 
Parish church. This expression has various significa
tions. It is applied sometimes to a select body of Chris
tians, forming a local spiritual association, and some
times to the building in which the public worship of the 
inhabitants of a parish is celebrated; but the true legal 
notion of a parochial church is a consecrated place, 
having attached to it the rights of burial and .the admin
istration of the sacraments. 
Parish court. The name of a court established in each 
parish in Louisiana, and corresponding to the county 
courts or common pleas courts in the other states. It 
has a limited civil jurisdiction, besides general probate 
powers. 
Parishioners. Members of a parish. In England, for 
many purposes they form a body politic. 
Par items. Items which a drawee bank will remit to 
another bank without charge. 
Parity. Equality in amount or value. Equivalence of 
prices of farm products in relation to those existing at 
some former date (base period) or to the general cost of 
living. Parity prices are important in establishing 
government price support programs for farmers. 
Equivalence of prices of goods or services in two differ
ent markets.

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PARITY 
The relationship between two currencies such that 
they are exchangeable for each other at the par or 
official rate of exchange. See Exchange rate. 
Parity ratio. A relationship developed between the in
dex of prices received by farmers for their crops and the 
index of costs of the farmers for the items which they 
buy. 
Parium eadem est ratio, idem jus Ipreriy�m iyeyd�m 
est reysh(iy)ow, ayd�m j:lsl. Of things equal, the reason 
is the same, and the same is the law. 
Parium judicium Ipreriy�m j�dishiy�m /. The judgment 
of peers; trial by a jury of one's peers or equals. 
Park, n. An inclosed pleasure-ground in or near a city, 
set apart for the recreation of the pUblic. 
Park, v. Term "park" as used in statutes or ordinances 
regulating parking, does not comprehend or include 
merely temporary or momentary stoppage but rather 
connotes a stoppage with intent of permitting vehicle to 
remain standing for an appreciable length of time. 
Ford v. Stevens, 280 Minn. 16, 157 N.W.2d 510, 513. 
Parliament. The supreme legislative assembly of Great 
Britain and Ireland, consisting of the king or queen and 
the three estates of the realm, viz., the lords spiritual, 
the lords temporal, and the commons. 
High Court of Parliament. In English law, the English 
parliament, as composed of the house of peers and house 
of commons; or the house of lords sitting in its judicial 
capacity. 
Parliamentary. Relating or belonging to, connected 
with, enacted by or proceeding from, or characteristic of, 
the English parliament in particular, or any legislative 
body in general. 
Parliamentary agents. In England, persons who act as 
solicitors in promoting and carrying private bills 
through parliament. They are usually attorneys or 
solicitors, but they do not usually confine their practice 
to this particular department. No member or officer of 
either house may act as an agent. 
Parliamentary committee. A committee of members of 
the house of peers or of the house of commons, appoint
ed by either house for the purpose of making inquiries, 
by the examination of witnesses or otherwise, into mat
ters which could not be conveniently inquired into by 
the whole house. 
Parliamentary law. The general body of enacted rules 
(e.g. Roberts Rules of Order) and recognized usages 
which governs the procedure of legislative assemblies 
and other deliberative bodies such as meetings of stock
holders and directors of corporations, town meetings, 
boards, clubs, and the like. 
Parliamentary taxes. See Tax. 
Parliamentum Iparl(iy)�ment�m/. L. Lat. A legislative 
body in general or the English parliament in particular. 
Parliamentum religiosorum Iparl(iy)�ment�m r�lij
iyows6r�m /. In most convents there has been a com
mon room into which the brethren withdrew for conver-
1116 
sation; conferences there being termed "parliamentum. " 
Likewise, the societies of the two temples, or inns of 
court, call that assembly of the benchers or governors 
wherein they confer upon the common affairs of their 
several houses a "parliament." 
Parochial. Relating or belonging to a parish. 
Par of exchange. The precise equality or equivalency of 
any given sum or quantity of money of one country, �md 
the like sum or quantity of money of any other foreign 
country into which it is to be exchanged. The par of the 
currencies of any two countries means the equivalence 
of a certain amount of the currency of the one in the 
currency of the other. See Exchange rate. 
Parol. A word; speech; hence, oral or verbal. Ex
pressed or evidenced by speech only; as opposed to by 
writing or by sealed instrument. 
As to parol Agreement; Arrest; Demurrer; Lease; and 
Promise; see those titles. 
Parol contract. An oral contract as distinguished from 
a written or formal contract. See also Oral contract. 
Parole Ip�r6wl/. Release from jail, prison or other con
finement after actually serving part of sentence. State 
v. Ludwig, 218 Or. 483, 344 P.2d 764, 766. Conditional 
release from imprisonment which entitles parolee to 
serve remainder of his term outside confines of an 
institution, if he satisfactorily complies with all terms 
and conditions provided in parole order. Thomas v. 
Arizona State Bd. of Pardons and Paroles, 115 Ariz. 128, 
564 P.2d 79, 81. 
"Parolee" gains his conditional freedom as result of 
exercise of discretion by parole board which may grant 
parole when it is of opinion there is reasonable probabil
ity that prisoner will live and remain at liberty without 
violating laws. Birch v. Anderson, C.A.D.C., 358 F.2d 
520, 524, 123 U.S.App.D.C. 153. 
The granting, denying, revocation, and supervision of 
parole for federal prisoners rests in the U.S. Parole 
Commission. Most states have similar boards or com
missions. See Parole board or commission. 
In military law, a promise given by a prisoner of war, 
when he has leave to depart from custody, that he will 
return at the time appointed, unless discharged. An 
engagement by a prisoner of war, upon being set at 
liberty, that he will not again take up arms against the 
government by whose forces he was captured, either for 
a limited period or while hostilities continue. 
Compare Amnesty; Pardon. 
Probation distinguished. "Probation" relates to judicial 
action taken before the prison door is closed, whereas 
"parole" relates to executive action taken after the door 
has closed on a convict. State v. Hewett, 270 N.C. 348, 
154 S.E.2d 476, 479. 
Revocation hearing. Parole revocation hearing is in the 
nature of an administrative proceeding for the purpose 
of determining whether a parolee has violated the condi
tions of his parole. State ex reI. McNeil v. New York

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1117 
State Bel of Parole, 87 Misc.2d 497, 385 N.Y.S.2d 731, 
734. 
Parole board or commission. The state and federal 
administrative bodies empowered to decide whether in
mates shall be conditionally released from prison before 
completion of their sentences. Called "Correctional 
Boards" in some states. 
The U.S. Parole Commission consists of nine members, 
appointed by the President by and with the advice and 
consent of the Senate. It has sole authority to grant, 
modify, or revoke paroles of all U.S. prisoners. It is 
responsible for the supervision of parolees and prisoners 
released upon the expiration of their sentences with 
allowances for statutory good time. U.S. probation offi
cers supervise parolees and mandatory releases. 
The former federal Board of Parole was abolished in 
1976 with its functions transferred to the U.S. Parole 
Commission. With implementation of the 1987 federal 
Sentencing Guidelines, the federal parole system will be 
phased out and replaced by release under the supervi
sion of the judge who imposed the sentence-rather 
than by a parole board. 
Parolee. Ex-prisoner who has been placed on parole. 
Parole officers. Parole system is administered by pa
role officers whose duties include supervision of parol
ees. Normally, parolees must periodically report to 
such officers. 
Parol evidence. Oral or verbal evidence; that which is 
given by word of mouth; the ordinary kind of evidence 
given by witnesses in court. In a particular sense, and 
with reference to contracts, deeds, wills, and other writ
ings, parol evidence is the same as extraneous evidence 
or evidence aliunde. See also Aliunde; Extraneous evi
dence; Oral evidence. 
Parol evidence rule. This evidence rule seeks to pre
serve integrity of written agreements by refusing to 
permit contracting parties to attempt to alter import of 
their contract through use of contemporaneous oral dec
larations. Rose v. Food Fair Stores, Inc., 437 Pa. 117, 
262 A.2d 851. Under this rule when the parties to a 
contract embody their agreement in writing and intend 
the writing to be the final expression of their agree
ment, the terms of the writing may not be varied or 
contradicted by evidence of any prior written or oral 
agreement in the absence of fraud, duress, or mutual 
mistake. Federal Deposit Ins. Corp. v. First Mortgage 
Investors, 76 Wis.2d 151, 250 N.W.2d 362, 365. But rule 
does not forbid a resort to parol evidence not inconsist
ent with the matters stated in the writing. Elkins v. 
Super-Cold Southwest Co., Tex.Civ.App., 157 S.W.2d 946, 
947. Also, as regards sales of goods, such written agree
ment may be explained or supplemented by course of 
dealing or usage of trade or by course of conduct, and by 
evidence of consistent additional terms unless the court 
finds the writing to have been intended also as a com
plete and exclusive statement of the terms of the agree
ment. U.C.C. § 2-202. 
This rule is also applicable to wills and trusts. 
PARTE NON COMPARENTE 
Parols de ley /p�rowlz d� ley/. L. Fr. Words of law; 
technical words. 
Parols font plea /p�rowls font pliy/. Words make the 
plea. 
Parricide /prer�sayd/. The crime of killing one's father; 
also a person guilty of killing his father. 
Parricidium /prer�sayd(i)y�m/. Lat. In the civil law, 
parricide; the murder of a parent. 
Pars /parz/. Lat. A part; a party to a deed, action, or 
legal proceeding. 
Pars enitia /parz �naysh(iy)�/. In old English law, the 
privilege or portion of the eldest child in the partition of 
lands by lot. 
Pars gravata /parz gr�veyt�/. A party aggrieved; the 
party aggrieved. 
Parson. The rector of a church; one that has full 
possession of all the rights of a parochial church. 
Parson mortal. In old English law, a rector instituted 
and inducted for his own life. But any collegiate or 
conventional body, to whom a church was forever appro
priated, was termed "persona immortalis. " 
Pars rationabilis /parz rresh�neyb�l�s/. That part of a 
man's goods which the law gave to his widow and 
children. 
Pars rea /parz riy�/. A party defendant. 
Pars viscerum matris /parz vis�r�m meytr�s/. Part of 
the bowels of the mother; i.e., an unborn child. 
Part. An integral portion, something essentially belong
ing to a larger whole; that which together with another 
or others makes up a whole. First-Mechanics Nat. Bank 
of Trenton v. Norris, 134 N.J.Eq. 229, 34 A.2d 746, 749. 
A portion, share, or purpart. One of two duplicate 
originals of a conveyance or covenant, the other being 
called "counterpart." Also, in composition, partial or 
incomplete; as part payment, part performance. 
Partage /partazh /. In French law, a division made 
between co-proprietors of a particular estate held by 
them in common. It is the operation by means of which 
the goods of a succession are divided among the co-heirs; 
while licitation (q.v.) is an adjudication to the highest 
bidder of objects which are not divisible. 
Parte inaudita /pardiy inod�t�/. Lat. One side being 
unheard. Spoken of any action which is taken ex parte. 
Partem aliquam recte intelligere nemo potest, ante
quam totum, iterum atque iterum, perlegerit 
/pard�m rel�kw�m rektiy int�lej�riy niymow powt�st 
rent�kw�m towt�m it�r�m retkwiy it�r�m p�rliyj�r�t/. 
No one can rightly understand any part until he has 
read the whole again and again. 
Parte non comparente /partiy non komp�rentiy /. Lat. 
The party not having appeared. The condition of a 
cause called "default." 
Parte quacumque integrante sublata, tollitur totum 
/partiy kw�kamkwiy int�grrentiy s�bleyt� tol�t�r

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PARTES FINIS NIHIL HABUERUNT 
t6wt;}m /. An integral part being taken away, the whole 
is taken away. 
Partes finis nihil habuerunt /partiyz fayn;}s nay(h);}l 
hrebyuwir;}ntl. In old pleading, the parties to the fine 
had nothing; that is, had no estate which could be 
conveyed by it. A plea to a fine which had been levied 
by a stranger. 
Partial. Relating to or constituting a part; not com
plete; not entire or universal; not general or total. 
United States Fidelity & Guaranty Co. v. Baker, Tex.Civ. 
App., 65 S.W.2d 344, 346. 
Partial account. An account of an executor, adminis
trator, guardian, etc., not exhibiting his entire dealings 
with the estate or fund from his appointment to final 
settlement, but covering only a portion of the time or of 
the estate. 
Partial average. Another name for particular average. 
See Average. 
Partial dependency. Test as to existence of such de
pendency for purpose of worker's compensation is 
whether contributions were relied on by claimants to aid 
and maintain them in present position in life and 
whether they were to substantial degree depending on 
support or aid of employee at time of death. Federal 
Underwriters Exchange v. Hinkle, Tex.Civ.App., 187 
S.W.2d 122, 124. 
Partial eviction. That which takes place when the 
possessor is deprived of only a portion of his rights in 
the premises. Such may result in constructive eviction. 
Partial evidence. That which goes to establish a de
tached fact, in a series tending to the fact in dispute. It 
may be received, subject to be rejected as incompetent, 
unless connected with the fact in dispute by proof of 
other facts; for example, on an issue of title to real 
property, evidence of the continued possession of a re
mote occupant is partial, for it is of a detached fact, 
which may or may not be afterwards connected with the 
fact in dispute. 
Partial incapacity. Such occurs when injury disables a 
workman to perform part of the usual tasks of his job, 
though such disablement does not prevent him from 
procuring and retaining employment reasonably suit
able to his physical condition and ability to work, or 
when because of his injury he is only able to perform 
labor of a less remunerative class than he performed 
before the injury, and as a consequence he suffers a 
depression or reduction in his earning capacity. Com
mercial Ins. Co. of Newark, New Jersey v. Puente, 
Tex.Civ.App., 535 S.W.2d 948, 957. 
Partial limitation. Provision found in some insurance 
policies in which the insurer agrees to pay a total loss if 
the actual loss exceeds a certain amount. 
Partial loss. A loss of a part of a thing or of its value, or 
any damage not amounting (actually or constructively) 
to its entire destruction; as contrasted with total loss. 
Partial loss is one in which the damage done to the 
thing insured is not so complete as to amount to a total 
1118 
loss, either actual or constructive. In every such case 
the underwriter is liable to pay such proportion of the 
sum which would be payable on total loss as the damage 
sustained by the subject of insurance bears to the whole 
value at the time of insurance. Partial loss implies a 
damage sustained by the ship or cargo, which falls upon 
the respective owners of the property so damaged; and, 
when happening from any peril insured against by the 
policy, the owners are to be indemnified by the under
writers, unless in cases excepted by the express terms of 
the policy. 
Partial payment. See Payment. 
Partial release. Clause in blanket mortgage directing 
mortgagee to release specified parcels from lien upon 
payment of certain sum. 
Partial taking. See Eminent domain. 
Partial verdict. See Verdict. 
Partiarius /parshiyeriy;}s/. Lat. In Roman law, a lega
tee who was entitled, by the directions of the will, to 
receive a share or portion of the inheritance left to the 
heir. 
Partible lands. Lands which might be divided; lands 
held in gavelkind. 
Particeps /part;}seps/. Lat. A participant; a sharer; 
anciently, a part owner, or parcener. 
Particeps criminis /part;}seps krim;}n;}s/. A participant 
in a crime; an accomplice. One who shares or co-oper
ates in a criminal offense, tort or fraud. See Accomplice. 
Participate /p;}rtis;}peyt/. To receive or have a part or 
share of; to partake of; experience in common with 
others; to have or enjoy a part or share in common with 
others. To partake, as to "participate" in a discussion, 
or in a pension or profit sharing plan. To take equal 
shares and proportions; to share or divide, as to partic
ipate in an estate. To take as tenants in common. 
Participation. Provision in insurance policies by which 
the insured shares or participates in each loss incurred 
and covered by the policy on a specified percentage 
basis. Sometimes loosely referred to as coinsurance but 
latter term is not strictly applicable. 
To prove "participation" in a criminal enterprise, for 
purpose of convicting for aiding and abetting, there 
must be evidence to establish that defendant engaged in 
some affirmative conduct, that is, that defendant com
mitted an overt act designed to aid in success of the 
venture; proof of mere negative acquiescence will not 
suffice. U.S. v. Cowart, C.A.Ga., 595 F.2d 1023, 1035. 
Participation loan. As a loan risk safeguard, and be
cause of statutory and regulatory limitations on the 
amount which a single bank may lend to a single bor
rower, two or more banks will join in larger loans with 
each bank lending a portion of the amount to the 
borrower. Such loans are usually arranged for and 
serviced by a "lead" bank-lender.

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1119 
Participation mortgage. Type of mortgage where . lend
er participates in profits of venture beyond or in addi
tion to normal interest rate. 
Participes plures sunt quasi unum corpus in eo quod 
unum jus habent, et oportet quod corpus sit integ
rum, et quod in nulla parte sit defectus /partis�piyz 
pluriyz s�nt kweyzay yuwn�m k6rp�s in iyow kwod 
yuwn�m j�s heyb�nt, et �p6rt�t kwod k6rp�s sid int�gr�m 
et kwod in n�l� partiy sit d�fekt�s/. Many parceners 
are as one body, inasmuch as they have one right, and it 
is necessary that the body be perfect, and that there be a 
defect in no part. 
Particula /partiky�l�/. A small piece of land. 
Particular. Relating to a part or portion of anything; 
separate; sole; single; individual; specific; local; com
prising a part only; partial in extent; not universal. 
Opposed to general. State v. Patterson, 60 Idaho 67, 88 
P.2d 493, 497. Of, or pertaining to, a single person, 
class or thing. Albin v. Hughes, Tex.Civ.App., 304 
S.W.2d 371, 372. 
As to particular Average; Customs; Estate; Malice; 
and Partnership; see those titles. 
Particularity. In a pleading, affidavit, or the like, is the 
detailed statement of particulars. 
Particular lien. A particular lien is a right to retain a 
thing for some charge or claim growing out of, or con
nected with, the identical thing. Right to retain proper
ty of another on account of labor employed or money 
expended on that specific property, and such lien may 
arise by implication of law, usages of a trade, or by 
express contract. 
Particulars. The details of a claim, or the separate 
items of an account. When these are stated in an 
orderly form, for the information of a defendant, the 
statement is called a "bill of particulars". See Particu
lars of criminal charges. 
Particulars, bill of. See Particulars of criminal charges. 
Particulars of breaches and objections. In an action 
brought, in England, for the infringement of letters 
patent, the plaintiff is bound to deliver with his declara
tion (now with his statement of claim) particulars (i.e., 
details) of the breaches which he complains of. 
Particulars of criminal charges. A prosecutor, when a 
charge is general, is frequently ordered to give the 
defendant a statement of the specific acts charged (bill 
of particulars). Fed.R.Crim.P. 7. See Bill (Bill of partic
ulars). 
Particulars of sale. When property such as land, hous
es, shares, reversions, etc., is to be sold by auction, it is 
usually described in a document called the "particu
lars," copies of which are distributed among intending 
bidders. They should fairly and accurately describe the 
property. 
Particular tenant. The tenant of a particular estate. 
See Estate. 
PARTITION 
Parties. The persons who take part in the performance 
of any act, or who are directly interested in any affair, 
contract, or conveyance, or who are actively concerned 
in the prosecution and defense of any legal proceeding. 
Green v. Bogue, 158 U.S. 478, 15 S.Ct. 975, 39 L.Ed. 
1061. See also Party. 
In the Roman civil law, the parties were designated as 
"actor" and "reus': In civil actions they are called 
"plaintiff' and "defendant"; in equity, "complainant", 
or "plaintiff', and "defendant"; in admiralty practice, 
"libelant" and "respondent" or "libelee"; in appeals, 
"appellant" and "respondent" or "appellee", or some
times, "plaintiff in error" and "defendant in error"; in 
criminal proceedings, "State of __ ," or "United States 
of America", and "defendant". 
See also Coparties; Identity of parties; In dispensable 
parties; Interpleader; Intervention; Joinder; Necessary 
parties; Party; Proper party; Real party in interest; Substi
tution of parties; Third-party practice. 
Indispensible parties. See Joinder. 
Joinder of parties. See Joinder. 
Necessary parties. See Joinder. 
Parties to crime. See Accessory; Accomplice; Principal. 
Proper parties. See Joinder. 
Real party in in terest. See Party. 
Parties and privies. Parties to a deed or contract are 
those with whom the deed or contract is actually made 
or entered into. By the term "privies," as applied to 
contracts, is frequently meant those between whom the 
contract is mutually binding, although not literally par
ties to such contract. Thus, in the case of a lease, the 
lessor and lessee are both parties and privies, the con
tract being literally made between the two, and also 
being mutually binding; but, if the lessee assign his 
interest to a third party, then a privity arises between 
the assignee and the original lessor, although such as
signee is not literally a party to the original lease. 
Parties in interest. See Party (Real party in in terest). 
Partisan. An adherent to a particular party or cause as 
opposed to the public interest at large. 
Partitio /p�rtish(iy)ow/. Lat. In the civil law, partition; 
division. This word did not always signify dimidium, a 
dividing into halves. 
Partitio legata /p�rtish(iy)ow l�geyt�/. In the civil law, 
a testamentary partition. This took place where the 
testator, in his will, directed the heir to divide the 
inheritance and deliver a designated portion thereof to a 
named legatee. 
Partition. The dividing of lands held by joint tenants, 
coparceners, or tenants in common. Gibson v. Gibson, 
264 Ark. 420, 572 S.W.2d 148, 149. And, in a less 
technical sense, any division of real or personal property 
between co-owners, resulting in individual ownership of 
the interests of each. Division between several persons 
of property which belongs to them as co-owners; it may 
be compulsory (judicial) or voluntary. O'Brien v.

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PARTITION 
O'Brien, 89 Misc.2d 433, 391 N.Y.S.2d 502, 503. Parti
tion severs unity of possession. Hamilton v. MacDonald, 
C.A.Ariz., 503 F.2d 11 38, 1150. 
Commonly, the court will order the property sold and 
the proceeds divided instead of ordering a physical parti
tion of the property. 
Owelt y of partition. See Owelty. 
Partition, deed of. In conveyancing, a species of pri
mary or original conveyance between two or more joint 
tenants, coparceners, or tenants in common, by which 
they divide the lands so held among them in severalty, 
each taking a distinct part. 
Partition of a succession. The partition of a succession 
is the division of the effects of which the succession is 
composed, among all the co-heirs, according to their 
respective rights. Partition is voluntary or judicial. It 
is voluntary when it is made among all the co-heirs 
present and of age, and by their mutual consent. It is 
judicial when it is made by the authority of the court, 
and according to the formalities prescribed by law. Ev
ery partition is either definitive or provisional. Defini
tive partition is that which is made in a permanent and 
irrevocable manner. Provisional partition is that which 
is made provisionally, either of certain things before the 
rest can be divided, or even of everything that is to be 
divided, when the parties are not in a situation to make 
an irrevocable partition. 
Partner. A member of partnership or firm; one who has 
united with others to form a partnership in business. 
See also General partner; Partnership. 
Dormant partners. Those whose names are not known 
or do not appear as partners, but who nevertheless are 
silent partners, and partake of the profits, and thereby 
become partners, either absolutely to all intents and 
purposes, or at all events in respect to third parties. 
Dormant partners, in strictness of language, mean those 
who are merely passive in the firm, whether known or 
unknown, in contradistinction to those who are active 
and conduct the business of the firm, as principals. See 
also Silent partner. 
Full or general partner. A partner who participates 
fully in the profits, losses and management of the part
nership and who is personally liable for its debts. 
Junior partner. A partner whose participation in the 
firm is limited as to both profits and management. See 
also Limited partner, below. 
Limited partner. A partner whose participation in the 
profits is limited by an agreement and who is not liable 
for the debts of the partnership beyond his capital 
contribution. See also Partnership (Limited partner
ship). 
Liquidating partner. The partner who, upon the disso
lution or insolvency of the firm, is appointed to settle its 
accounts, collect assets, adjust claims, and pay debts. 
Nominal partner. One whose name appears in connec
tion with the business as a member of the firm, but who 
has no real interest in it. 
1120 
Ostensible partner. One whose name appears to the 
world as such, or who is held out to all persons having 
dealings with the firm in the character of a partner, 
whether or not he has any real interest in the firm. 
Quasi partner. One who has joined with others in a 
business which appears to be a partnership but who is 
not actually a partner, e.g. joint adventurer. 
Secret partner. See Dormant partners, above. 
Silent partner. See Dormant partners, above. 
Special partner. A member of a limited partnership, 
who furnishes certain funds, and whose liability extends 
no further than the fund furnished. A partner whose 
responsibility is restricted to the amount of his invest
ment. 
Surviving partner. The partner who, on the dissolution 
of the firm by the death of his copartner, occupies the 
position of a trustee to settle up its affairs. 
Partnership. A business owned by two or more persons 
that is not organized as a corporation. A voluntary 
contract between two or more competent persons to 
place their money, effects, labor, and skill, or some or all 
of them, in lawful commerce or business, with the 
understanding that there shall be a proportional sharing 
of the profits and losses between them. Burr v. Green
land, Tex.Civ.App., 356 S.W.2d 370, 376. An association 
of two or more persons to carry on, as co-owners, a 
business for profit. Uniform Partnership Act, § 6(1). 
Nearly all states have adopted the Uniform Partnership 
Act. 
For income tax purposes, a partnership includes a 
syndicate, group, pool, or joint venture, as well as ordi
nary partnerships. In an ordinary partnership, two or 
more parties combine capital and/or services to carry on 
a business for profit as co-owners. I.R.C. § 7701(a)(2). 
See also Limited partnership and Tiered partnership, 
below. 
Partnerships are treated as a conduit and are, there
fore, not subject to taxation. The various items of 
partnership income, gains and losses, etc. flow through 
to the individual partners and are reported on their 
personal income tax returns. 
Articles of partnership. See that title. 
Collapsible partnership. See that title. 
Commercial partnership. See Trading partnership. 
Family partnership. One which family members control 
by being partners. Children may be partners but for 
tax purposes they should be given complete control over 
their interests; otherwise, the entire profits will be 
considered income of the active adult partners. See also 
Family partnership. 
General partnership. A partnership in which the par
ties carry on all their trade and business, whatever it 
may be, for the joint benefit and profit of all the parties 
concerned, whether the capital stock be limited or not, 
or the contributions thereto be equal or unequal. One 
in which all the partners share the profits and losses as

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1121 
well as the management equally, though their capital 
contributions may vary. 
Implied partnership. One which is not a real partner
ship but which is recognized by the court as such be
cause of the conduct of the parties; in effect, the parties 
are estopped from denying the existence of a partner
ship. 
Limited partnership. A partnership consisting of one or 
more general partners, jointly and severally responsible 
as ordinary partners, and by whom the business is 
conducted, and one or more special partners, contribu
ting in cash payments a specific sum as capital to the 
common stock, and who are not liable for the debts of 
the partnership beyond the fund so contributed. See 
also Limited partnership. 
Mining partnership. See that title. 
Particular partnership. One existing where the parties 
have united to share the benefits of a single individual 
transaction or enterprise. 
Partnership assets. Property of any kind belonging to 
the firm as such (not the separate property of the 
individual partners) and available to the recourse of the 
creditors of the firm in the first instance. 
Partnershi p at will. One designed to continue for no 
fixed period of time, but only during the pleasure of the 
parties, and which may be dissolved by any partner 
without previous notice. 
Partnership by estoppel. Two or more persons who hold 
themselves out as partners to a third person, when in 
fact they are not partners, are barred from claiming 
they are not partners. 
Partnershi p debt. One due from the partnership or firm 
as such and not (primarily) from one of the individual 
partners. 
Partnership in commendam. A partnership formed by a 
contract by which one person or partnership agrees to 
furnish another person or partnership a certain amount, 
either in property or money, to be employed by the 
person or partnership to whom it is furnished, in his or 
their own name or firm, on condition of receiving a 
share in the profits, in the proportion determined by the 
contract, and of being liable to losses and expenses to 
the amount furnished and no more. 
Secret partnership. One where the existence of certain 
persons as partners is not avowed to the public by any of 
the partners. See Partner (Dormant partners). 
Special partnership. At common law, one formed for 
the prosecution of a special branch of business, as distin
guished from the general business of the parties, or for 
one particular venture or subject. A joint adventure 
under state statutes; such are usually considered "limit
ed partnerships". 
Statutory partnership association. A statutory creation 
in some states (e.g. Michigan, New Jersey, Ohio) which 
resembles a corporation more than a partnership, but 
which has many attributes of the limited partnership. 
PARTUS SEQUITUR VENTREM 
Subpartnership. One formed where one partner in a 
firm makes a stranger a partner with him in his share 
of the profits of that firm. It is not a partnership but an 
arrangement in which the subpartner shares in the 
profits and losses of a partner. 
Tiered partnership. An ownership arrangement where
in one partnership (the parent or first tier) is a partner 
in one or more partnerships (the subsidiary/subsidiaries 
or second tier). Frequently, the first tier is a holding 
partnership and the second tier is an operating partner
ship. 
Trading partnership. See that title. 
Universal partnership. One in which the partners joint
ly agree to contribute to the common fund of the part
nership the whole of their property, of whatever charac
ter, and future, as well as present. 
Partnership agreement. The document embodying the 
terms and conditions of a partnership and sometimes 
referred to as the articles of partnership. 
Partnership articles. See Articles of partnership. 
Partnership association. Type of business association 
which resembles in part a partnership and a joint stock 
company. Its salient feature is the limited liability of 
the members and is seldom used today. 
Partnership certificate. A document evidencing the 
participation of the partners in a partnership and com
monly furnished to financial institutions when the part
nership borrows money. 
Partnership insurance. See Ins urance. 
Part performance. A plaintiff who renders partial per
formance of a contract relying on the promised perform
ance of the other party may successfully resist the 
defense of the statute of frauds under certain conditions. 
In order to establish part performance taking an oral 
contract for the sale of realty out of the statute of 
frauds, the acts relied upon as part performance must be 
of such a character that they can reasonably be natural
ly accounted for in no other way than that they were 
performed in pursuance of the contract, and they must 
be in conformity with its provisions. Camerota v. Wis
niewski, 21 Conn.Sup. 88, 145 A.2d 139, 141. See V.C.C. 
§ 2-201(3). See also Performance. 
Partus /part:;)s/. Lat. Child; offspring; the child just 
before it is born, or immediately after its birth. 
Partus ex legitimo thoro non certius noscit matrem 
quam. genitorem suum /part:;)s eks l:;)jit:;)mow Oorow 
non s�rsh(iy):;)s nos:;)t meytr:;)m kwrem jen:;)tor:;)m 
s(y)uw:;)m/. The offspring of a legitimate bed knows not 
his mother more certainly than his father. 
Partus sequitur ventrem /part:;)s sekw:;)t:;)r ventr:;)m/. 
The offspring follows the mother; the brood of an ani
mal belongs to the owner of the dam; the offspring of a 
slave belongs to the owner of the mother, or follows the 
condition of the mother. A maxim of the civil law, 
which has been adopted in the law of England in regard

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PARTUS SEQUITUR VENTREM 
to animals, though never allowed in the case of human 
beings. 
Party, n. A person concerned or having or taking part 
in any affair, matter, transaction, or proceeding, con
sidered individually. A "party" to an action is a person 
whose name is designated on record as plaintiff or 
defendant. M & A Elec. Power Co-op. v. True, Mo.App., 
480 S.W.2d 310, 314. Term, in general, means one 
having right to control proceedings, to make defense, to 
adduce and cross-examine witnesses, and to appeal from 
judgment. City of Chattanooga v. Swift, 223 Tenn. 46, 
442 S.W.2d 257, 258. 
"Party" is a technical word having a precise meaning 
in legal parlance; it refers to those by or against whom 
a legal suit is brought, whether in law or in equity, the 
party plaintiff or defendant, whether composed of one or 
more individuals and whether natural or legal persons; 
all others who may be affected by the suit, indirectly or 
consequently, are persons interested but not parties. 
Golatte v. Mathews, D.C.Ala., 394 F.Supp. 1203, 1207. 
See also Nominal defendant; Parties; Prevailing party. 
For indispensable parties, joinder of parties, necessary 
parties, proper parties, see Joinder. 
Party aggrieved. Under statutes permitting any party 
aggrieved to appeal, is one whose right has been directly 
and injuriously affected by action of court. Singer v. 
Allied Factors, 216 Minn. 443, 13 N.W.2d 378, 380. One 
whose pecuniary interest in subject matter of an action 
is directly and injuriously affected or whose right of 
property is either established or divested by complained 
of decision. Whitman v. Whitman, Okl., 397 P.2d 664, 
667. 
To be "party aggrieved" by judgment, appellant's in
terest must be immediate, pecuniary and substantial 
and not nominal or remote consequence of judgment. 
Leoke v. San Bernardino County, 249 C.A.2d 767, 57 
Cal.Rptr. 770, 772, 773. See also Aggrieved party. 
Party in in terest. Primary meaning ascribed the term 
"party in interest" in bankruptcy cases is one whose 
pecuniary interest is directly affected by the bankruptcy 
proceeding. In re Kutner, Bkrtcy.Tex., 3 B.R. 422, 425. 
Party to be charged. A phrase used in the statute of 
frauds, meaning the party against whom the contract is 
sought to be enforced. The party to be charged in the 
action-that is, the defendant. 
Political party. A body of voters organized for the 
purpose of influencing or controlling the policies and 
conduct of government through the nomination and 
election of its candidates to office. See also Political 
party. 
Real party in interest. Fed.R. Civil P. 17(a) provides 
that every action shall be prosecuted by the "real party 
in interest." The adoption of this rule was intended to 
change the common law rule which permitted suit to be 
brought only in the name of the person having the legal 
title to the right of action, and thus precluded suit by 
persons who had only equitable or beneficial interests. 
Under the rule the "real party in interest" is the party 
1122 
who, by the substantive law, possesses the right sought 
to be enforced, and not necessarily the person who will 
ultimately benefit from the recovery. This is illustrated 
by the further language of the rule stating that execu
tors, administrators, and other named representatives 
may sue in their own name without joining with them 
the party for whose benefit the action is brought. 
Third parties. A term used to include all persons who 
are not parties to the contract, agreement, or instru
ment of writing by which their interest in the thing 
conveyed is sought to be affected. See also Beneficiary. 
In civil actions, a defendant, as a third-party plaintiff, 
may cause a summons and complaint to be served upon 
a person not a party to the action who is or may be 
liable to him for all or part of the plaintiffs' claim 
against him. A similar right is afforded to the plaintiff 
when a counterclaim is asserted against him. Fed.R. 
Civil P. 14. See Third party complaint; Third-party prac
tice. 
Party wall. A wall erected on a property boundary as a 
common support to structures on both sides, which are 
under different ownerships. A wall built partly on the 
land of one owner, and partly on the land of another, for 
the common benefit of both in supporting the construc
tion of contiguous buildings. A division wall between 
two adjacent properties belonging to different persons 
and used for mutual benefit of both parties, but it is not 
necessary that the wall should stand part upon each of 
two adjoining lots, and it may stand wholly upon one lot. 
Soma Realty Co. v. Romeo, 31 Misc.2d 20, 220 N.Y.S.2d 
752, 755. 
In the primary and most ordinary meaning of the 
term, a party-wall is (1) a wall of which the two adjoin
ing owners are tenants in common. But it may also 
mean (2) a wall divided longitudinally into two strips, 
one belonging to each of the neighboring owners; (3) a 
wall which belongs entirely to one of the adjoining 
owners, but is subject to an easement or right in the 
other to have it maintained as a dividing wall between 
the two tenements (the term is so used in some of the 
English building acts); or (4) a wall divided longitudinal
ly into two moieties, each moiety being subject to a 
cross-easement in favor of the owner of the other moie
ty. 
Parum iprer;)mi. Lat. Little; but little. 
Parum cavisse videtur iprer;)m k;)visiy v;)diyt;)ri. Lat. 
Roman law. He seems to have taken too little care; he 
seems to have been incautious, or not sufficiently upon 
his guard. A form of expression used by the judge or 
magistrate in pronouncing sentence of death upon a 
criminal. 
Parum differunt qure re concordant iprer;)m dif;)r;)nt 
kwiy riy k;)nkord;)nt/. Things which agree in substance 
differ but little. 
Parum est latam esse sententiam nisi mandetur exe
cutioni iprer;}m est leyt;}m esiy s;}ntensh(iy);}m naysay 
mrendeyt;}r eks;}kyu.wshiyownayi. It is little [or to little

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1123 
purpose] that judgment be given unless it be committed 
to execution. 
Parum proficit scire quid fieri debet, si non cognos
cas quomodo sit facturum /prer�m prof�s�t sayriy 
kwid fay�ray deb�t, say non k�gnosk�s kwowm�dow sit 
frekt(y)ur�m /. It profits little to know what ought to be 
done, if you do not know how it is to be done. 
Par value. The face or stated value of a share of stock 
or bond. With reference to mortgages or trust deeds, 
the value of the mortgage based on the balance owing, 
without discount. 
In the case of a common share, par means an arbi
trary or nominal dollar amount assigned to the share by 
the issuing company. Par value may also be used to 
compute the dollar amount of the common shares on the 
balance sheet. Par value has little significance so far as 
market value of common stock is concerned. Many 
companies today issue no-par stock but give a stated per 
share value on the balance sheet. In the case of pre
ferred shares and bonds, however, par is important. It 
often signifies the dollar value upon which dividends on 
preferred stocks, and interest on bonds, are figured. In 
the case of bonds and stock, the face value appearing on 
the certificate is the par value. Those stocks not con
taining such a statement have no par value. 
Bonds are issued at or very near par value, and 
subsequently trade at either a discount or a premium to 
this figure, based on the direction of interest rates. 
Bonds mature at par. 
Par value or stated value. The Revised Model Business 
Corporation Act and the statutes of many states have 
eliminated the concept of par value. 
Parva serjeantia /parv� s�rjiyrensh(iy)�/. Petty serjean
ty (q.v.). 
Parvum cape /parv�m keyp(iy)/. See Petit cape. 
Pas /pa/. In French. Precedence; right of going fore
most. 
Pass, v. To utter or pronounce, as when the court passes 
sentence upon a prisoner. Also to proceed; to be ren
dered or given, as when judgment is said to pass for the 
plaintiff in a suit. 
In legislative parlance, a bill or resolution is said to 
pass when it is agreed to or enacted by the house, or 
when the body has sanctioned its adoption by the requi
site majority of votes; in the same circumstances, the 
body is said to pass the bill or motion. See also Passage. 
When an auditor appointed to examine into any ac
counts certifies to their correctness, he is said to pass 
them; i.e., they pass through the examination without 
being detained or sent back for inaccuracy or imperfec
tion. 
The term also means to examine into anything and 
then authoritatively determine the disputed questions 
which it involves. In this sense a jury is said to pass 
upon the rights or issues in litigation before them. 
PASSENGER 
In the language of conveyancing, the term means to 
move from one person to another; i.e. to be transferred 
or conveyed from one owner to another. 
To publish; utter; transfer; circulate; impose fraudu
lently. This is the meaning of the word when the 
offense of passing counterfeit money or a forged paper is 
spoken of. 
"Pass," "utter," "publish," and "sell" are in some 
respects convertible terms, and, in a given case, "pass" 
may include utter, publish, and sell. The words "utter
ing" and "passing," used of notes, do not necessarily 
import that they are transferred as genuine. The words 
include any delivery of a note to another for value, with 
intent that it shall be put into circulation as money. 
When used in connection with negotiable instrument 
means to deliver, to circulate, to hand from one person 
to another. State v. Beaver, 266 N.C. 11 5, 145 S.E.2d 
330, 331 . See Delivery; Negotiation; Transfer; Utter. 
Pass, n. Permission to pass; a license to go or come; a 
certificate, emanating from authority, wherein it is de
clared that a designated person is permitted to go be
yond certain boundaries which, without such authority, 
he could not lawfully pass. Also a ticket issued by a 
railroad or other transportation company, authorizing a 
designated person to travel free on its lines, between 
certain points or for a limited time. 
Passage. Act of passing; transit; transition. A way 
over water or land or through the air. An easement 
giving the right to pass over a piece of private water. 
Travel by sea; a voyage over water; the carriage of 
passengers by water; price paid for such carriage. 
Enactment; the act of carrying a bill or resolution 
through a legislative or deliberative body in accordance 
with the prescribed forms and requisites. The emer
gence of the bill in the form of a law, or the motion in 
the form of a resolution. Passage may mean when bill 
has passed either or both houses of legislature or when 
it is signed by President or Governor. 
Passagio /preseyj(iy)ow/. An ancient writ addressed to 
the keepers of the ports to permit a man who had the 
king's leave to pass over sea. 
Passator /preseyt�r/. In old English law, he who has the 
interest or command of the passage of a river; or a lord 
to whom a duty is paid for passage. 
Passbook. Document issued by a bank in which the 
customer's transactions (i.e. savings deposits and with
drawals) are recorded. 
Passenger. In general, a person who gives compensa
tion to another for transportation. Shapiro v. Book
span, 155 Cal.App.2d 353, 318 P.2d 123, 126. The word 
passenger has however various meanings, depending 
upon the circumstances under which and the context in 
which the word is used; sometimes it is construed in a 
restricted legal sense as referring to one who is being 
carried by another for hire; on other occasions, the word 
is interpreted as meaning any occupant of a vehicle 
other than the person operating it. American Mercury 
Ins. Co. v. Bifulco, 74 N.J.Super. 191, 181 A.2d 20, 22.

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PASSENGER 
The essential elements of "passenger" as opposed to 
"guest" under guest statute are that driver must receive 
some benefit sufficiently real, tangible, and substantial 
to serve as the inducing cause of the transportation so as 
to completely overshadow mere hospitality or friend
ship; it may be easier to find compensation where the 
trip has commercial or business flavor. Friedhoff v. 
Engberg, 82 S.D. 522, 149 N.W.2d 759, 761, 762, 763. 
A person whom a common carrier has contracted to 
carry from one place to another, and has, in the course 
of the performance of that contract, received under his 
care either upon the means of conveyance, or at the 
point of departure of that means of conveyance. 
Passenger mile. In statistics of transportation, a unit of 
measure equal to the transport of one passenger over 
one mile of route. 
Passim /pres�m/. Lat. Everywhere. Often used to indi
cate a very general reference to a book or legal authori
ty. 
Passion. In the definition of manslaughter as homicide 
committed without premeditation but under the influ
ence of sudden "passion" or "heat of passion", this term 
means any of the emotions of the mind known as rage, 
anger, hatred, furious resentment, or terror, rendering 
the mind incapable of cool reflection. See also Heat of 
passion. 
Passive. As used in law, this term means inactive; 
permissive; consisting in endurance or submission, rath
er than action; and in some connections it carries the 
implication of being subjected to a burden or charge. 
As to passive Debt; Negligence; Title; Trust; and Use; 
see those titles. 
Passive activity. A term introduced with the Tax Re
form Act of 1986. A passive activity generally refers to 
an activity in which a taxpayer does not materially 
participate. An example includes an investment in a 
limited partnership. See Passive income; Passive loss. 
Passive income. Income earned in an activity in which 
an individual does not materially participate. An exam
ple of "passive income" includes: income from an inter
est in a limited partnership in contrast to "active in
come" which is salaries and wages, or earnings from a 
trade or business. Rental income is always considered 
passive regardless of material participation. See also 
Passive loss. 
Passive investment income. As defined in I.R.C. 
§ 1362(d)(3)(D), passive investment income means gross 
receipts from royalties, certain rents, dividend�, interest, 
annuities, and gains from the sale or exchange of stock 
and securities. 
Passive loss. In tax law, any loss from (1) activities in 
which the taxpayer does not materially participate, (2) 
rental activities (with certain exceptions for individuals 
who actively participate in rental activities), or (3) tax 
shelter activities. The deductibility of passive losses are 
limited based upon when the activity was acquired, as 
well as the type of activity involved. Any passive losses 
which are limited in the year incurred are fully deduct-
1124 
ible in the year the investment activity is disposed. 
Passive loss limitations were phased in beginning in 
1987. See also Passive income; Portfolio income. 
Passport. A document identifying a citizen, in effect 
requesting foreign powers to allow the bearer to enter 
and to pass freely and safely, recognizing the right of 
the bearer to the protection and good offices of Ameri
can diplomatic and consular offices. U. S. v. Laub, 
U.S.N.Y., 385 U.S. 475,87 S.Ct. 574, 578, 17 L.Ed.2d 526. 
A passport is evidence of permission from sovereign to 
its citizen to travel to foreign countries and to return to 
land of his allegiance, as well as request to foreign 
powers that such citizen be allowed to pass freely and 
safely. Worthy v. U. S., C.A.Fla., 328 F.2d 386, 391. See 
also Visa. 
Any travel document issued by competent authority 
showing the bearer's origin, identity, and nationality if 
any, which is valid for the entry of the bearer into a 
foreign country. 8 U.S.C.A. § 11 01. 
In international law. A license or safe-conduct, issued 
during the progress of a war, authorizing a person to 
remove himself or his effects from the territory of one of 
the belligerent nations to another country, or to travel 
from country to country without arrest or detention on 
account of the war. 
Maritime. A document issued to a neutral merchant 
vessel, by her own government, during the progress of a 
war, to be carried on the voyage, to evidence her nation
ality and protect her against the cruisers of the belliger
ent powers. This paper is otherwise called a "pass," 
"sea-pass," "sea-letter," "sea-brief." It usually contains 
the captain's or master's name and residence, the name, 
property, description, tonnage, and destination of the 
ship, the nature and quantity of the cargo, the place 
from whence it comes, and its destination, with such 
other matters as the practice of the place requires. 
Past consideration. In contracts, a detriment suffered 
by a contracting party at a time antecedent to the 
formation of a contract and hence, except in unusual 
cases, is not legally sufficient consideration to support a 
contract. In law of negotiable instruments, past consid
eration is sufficient to support a note or other negotiable 
instrument. 
Past recollection recorded. A memorandum or record 
concerning a matter about which a witness once had 
knowledge but now has insufficient recollection to en
able him to testify fully and accurately, shown to have 
been made or adopted by the witness when the matter 
was fresh in his memory and to reflect that knowledge 
correctly, is not excluded by the hearsay rule, even 
though the declarant is available as a witness. If admit
ted, the memorandum or record may be read into evi
dence but may not itself be received as an exhibit unless 
offered by an adverse party. Fed.Evid.R. 803(5). 
Under the "past recollection recorded" doctrine, writ
ten report is properly admissible into evidence if witness 
has testified that on examination of the report he had 
no independent recollection of the matters contained 
therein. Lawson v. Belt Ry. Co. of Chicago, 34 Ill.

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App.3d 7, 339 N.E.2d 381, 394. Past recollection record
ed is where a witness, who is either devoid of a present 
recollection or possessed of an imperfect present recol
lection, desires to use a past recollection by employing 
some record of such recollection. Askins v. State, 13 
Md.App. 702, 284 A.2d 626, 630. 
Pastus /prest�s/. In feudal law, the procuration or provi
sion which tenants were bound to make for their lords 
at certain times, or as often as they made a progress to 
their lands. It was often converted into money. 
Pateat universis per prresentes /pretiy�t yuwn�v�rs�s 
p;}r pr�zentiyz/ . Know all men by these presents. 
Words with which letters of attorney anciently com
menced. 
Patent, adj. Open; manifest; evident; unsealed. Used 
in this sense in such phrases as "patent ambiguity," 
"patent writ," "letters patent." 
Letters patent. Open letters, as distinguished from let
ters close. An instrument proceeding from the govern
ment, and conveying a right, authority, or grant to an 
individual, as a patent for a tract of land, or for the 
exclusive right to make and sell a new invention. See 
Letters patent; Patent and Trademark Office. 
Patent, n. A grant of some privilege, property, or au
thority, made by the government or sovereign of a 
country to one or more individuals. 
The instrument by which a state or government 
grants public lands to an individual. 
A grant of right to exclude others from making, using 
or selling one's invention and includes right to license 
others to make, use or sell it. Valmont Industries, Inc. 
v. Yuma Mfg. Co., D.C.Colo., 296 F.Supp. 1291, 1294. A 
grant from the government conveying and securing for 
an inventor the exclusive right to make, use, and sell an 
invention for seventeen years. 35 U.S.C.A. § 154. See 
Board of Patent Appeals and In ferences; Patent and copy
right clause; Patent and Trademark Office. 
See also Assignor estoppel; Basic or pioneer patent; 
Combination patent; File wrapper estoppel; Identity; In 
vent; Invention; Lapse patent; Letters patent; License; 
Official Gazette; On sale; Paper patent; Process patent; 
Prosecution history estoppel; Public use; Scope of a 
patent; Shop right rule; Useful; Utility. 
Design patent. The unique appearance or design of an 
article of manufacture may be protected against duplica
tion by a design patent if it is original, non-obvious and 
ornamental. Design patents may be issued for both 
surface ornamentation or the overall configuration of an 
object. Such patents last for a term of 14 years. Mate
rial that is eligible for design patent protection may also 
be copyrightable. 35 U.S.C.A. § 17I. 
Land patent. A muniment of title issued by a govern
ment or state for the conveyance of some portion of the 
public domain. 
Mining claims. The instrument by which title to min
ing claims is conveyed by the federal government sub
ject to any existing liens and any vested and accrued 
PATENTABLE 
water rights and in conformity with conditions imposed 
by state statutes. Roberts v. Morton, D.C.Colo., 389 
F.Supp. 87, 9I. 
Patent pending. Designation (often abbreviated "Pat. 
Pend.") describing the legal status of patent application, 
after patent application has been filed and while patent 
examination is being conducted by U.S. Patent and 
Trademark Office to determine whether the claimed 
invention is in fact new, useful and non-obvious. 
Patent-right. A right secured by patent; usually mean
ing a right to the exclusive manufacture, use and sale of 
an invention or patented article. 
Patent-right dealer. Any one whose business it is to sell, 
or offer for sale, patent-rights. 
Patent suit. A suit with issues affecting the validity, 
enforcement or infringement of a patent. 
Pioneer patent. A patent for an invention covering a 
function never before performed, or a wholly novel de
vice, or one of such novelty and importance as to mark a 
distinct step in the progress of the art, as distinguished 
from a mere improvement or perfecting of what has 
gone before. Westinghouse v. Boyden Power-Brake Co., 
170 U.S. 537, 18 S.Ct. 707, 42 L.Ed. 1136; Sealed Air 
Corp. y. U.S. Intern. Trade ComJP., 645 F.2d 976. 
Plant patent. A patent granted to person who invents 
or discovers and asexually reproduces any distinct and 
new variety of plant, including cultivated sports, mu
tants, hybrids, and newly found seedlings, other than a 
tuber propagated plant or a plant found in an unculti
vated state. 35 U.S.C.A. § 16I. 
Reissued patent. A patent may be reissued whenever it 
is, through error without any deceptive intention, 
deemed wholly or partly inoperative or invalid, by rea
son of a defective specification or drawing, or by reason 
of the patentee claiming more or less than he had a 
right to claim in the patent. 35 U.S.C.A. § 25I. 
Tax treatment. A patent is an identifiable intangible 
asset which may be amortized over the remaining life of 
the patent. The sale of a patent usually results in 
capital gain treatment. I.R.C. § 1235. If developed 
internally by a company, the development costs are 
expensed as incurred under generally accepted account
ing principles. 
Utility patent. The customary type of patent issued to 
any novel, non-obvious, and useful machine, article of 
manufacture, composition of matter or process. This is 
one of three types of patents provided for by the statute, 
the others being design and plant patents. See also 
Utility. 
Patentable. Suitable to be patented; entitled by law to 
be protected by the issuance of a patent. And to be .., 
patentable, a device must embody some new idea or 
principle not before known, and it must be a discovery 
as distinguished from mere mechanical skill or knowl
edge. In re Herthel, Cust. & Pat.App., 104 F.2d 824, 
826.

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PATENT AMBIGUITY 
Patent ambiguity. An ambiguity apparent on face of 
instrument and arising by reason of any inconsistency 
or inherent uncertainty of language used so that effect 
is either to convey no definite meaning or confused 
meaning. Ohio Cas. Group of Ins. Companies v. Gray, 
C.A.Ind., 746 F.2d 381, 383. See also Ambiguity. Com
pare Latent ambigui ty. 
Patent and copyright clause. Art. I, Sec. 8, cl. 8, U.S. 
Constitution, which provides for promoting the progress 
of science and useful arts, by securing for limited times 
to authors and inventors the exclusive right to their 
respective writings and discoveries. 
Patent and Trademark Office. Federal agency in the 
Department of Commerce headed by the Commissioner 
of Patents and Trademarks. In addition to the exami
nation of patent and trademark applications, issuance of 
patents, and registration of trademarks, the Patent and 
Trademark Office (PTO) sells printed copies of issued 
documents; records and indexes documents transferring 
ownership; maintains a scientific library and search 
files containing over 20 million documents, including 
U.S. and foreign patents and U.S. trademarks; provides 
search rooms for the public to research their applica
tions; hears and decides appeals from prospective inven
tors and tra.demark applicants; participates in legal 
proceedings involving the issue of patents or trademark 
registrations; helps represent the United States in in
ternational efforts to cooperate on patent and trade
mark policy; compiles the Of ficial Gazettes-a weekly 
list of all patents and trademarks issued by the PTO; 
and maintains a roster of agents and attorneys qualified 
to practice before the PTO. 
Patent appeals. See Board of Patent Appeals and In ter
ferences. 
Patent defect. In sales of personal property, one which 
is plainly visible or which can be discovered by such an 
inspection as would be made in the exercise of ordinary 
care and prudence. U.C.C. § 2-605(1). 
A patent defect in a legal description is one which 
cannot be corrected on its face, and a new description 
must be used. Compare Latent defect. 
Patentee. He to whom a patent has been granted. The 
term is usually applied to one who has obtained letters 
patent for a new invention. 
Patent infringement. The unauthorized making, using 
or selling of an invention covered by a valid claim of a 
patent during the term or extended term of the patent. 
Durango Associates, Inc. v. Reflange, Inc., S.D.Tex., 629 
F.Supp. 1443, 1459. See 35 U.S.C.A. § 271. Liability 
also exists for actively inducing infringement and for 
contributory infringement. 35 U.S.C.A. § 271 (b), (c). 
See also Infringement. 
Patent medicine. A packaged health remedy for public 
use, protected by letters patent and sold over-the-coun
ter without a physician's prescription. Board of Phar
macy v. Sherman, 74 N.J. Super. 417, 181 A.2d 418, 419. 
1126 
Patent pooling. An arrangement in which a number of 
manufacturers agree to an interchange of patent licens
es among the members of the pooling group. 
Pater /peyt�r/. Lat. A father; the father. In the civil 
law, this word sometimes included avus (grandfather). 
Paterfamilias /peyt�rf�mil(i)y�s/. The father of a fami
ly. 
In Roman law, the head or master of a family. 
This word is sometimes employed, in a wide sense, as 
equivalent to sui juris. A person sui juris is called 
"paterfamilias" even when under the age of puberty. In 
the narrower and more common use, a paterfamilias is 
any one invested with potestas over any person. It is 
thus as applicable to a grandfather as to a father. 
Pater is est quem nuptire demonstrant /peyt�r is est 
kwem n:)pshiyiy d�m6nstrrent/. The father is he whom 
the marriage points out. 
Paternal. That which belongs to the father or comes 
from him. 
Paternal line. A line of descent or relationship between 
two persons which is traced through the father. 
Paternal power. The authority lawfully exercised by 
parents over their children. This phrase is also used to 
translate the Latin "patria potestas" (q.v.). 
Paternal property. That which descends or comes to 
one from his father, grandfather, or other ascendant or 
collateral on the paternal side of the house. 
Paternity. The state or condition of a father; the rela
tionship of a father. 
Paternity suit or action. A court action to determine 
whether a person is the father of a child born out of 
wedlock for the purpose, commonly, of enforcing support 
obligations. See also HLA test; Multiple access. 
Pater patrire /peyt�r p,etriyiy/. Father of the country. 
See Parens patrire. 
Pathologist. One trained in the scientific study of dis
ease, its causes, development and consequences. 
Pathology. The science or doctrine of diseases. That 
part of medicine which explains the nature of diseases, 
their causes, and their symptoms. 
Patiens /preshiyenz/. Lat. One who suffers or permits; 
one to whom an act is done; the passive party in a 
transaction. 
Patient. Person under medical or psychiatric treatment 
and care. Person may be "patient" and physician-pa
tient privilege may apply, where physician attends per
son for purpose of giving professional aid, even though 
person attended is unconscious or unaware of physi
cian's presence and does not consent, or actually objects 
to being treated. State v. Pitchford, 10 Kan.App.2d 293, 
697 P.2d 896, 900. 
Patient-physician privilege. The right of one who is a 
patient to refuse to divulge, or have divulged by his 
physician, the communications made between he and his 
physician. This privilege is provided for by statute in

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1127 
most states, and, where recognized, it belongs to the 
patient and not to the physician and hence, it may be 
waived by the patient. 
Patient's bill of rights. A general statement of patient 
rights voluntarily adopted by most health care provid
ers, covering matters such as access to care, patient 
dignity and confidentiality, personal safety, consent to 
treatment and explanation of charges. Similar rights 
have been statutorily adopted in several states (cf. Minn. 
Stat. § 144.651) and by the federal government (cf. De
velopmentally Disabled Assistance and Bill of Rights 
Act of 1975, 42 U.S.C.A. § 6010). 
Pat. Pend. See Patent (Patent pending). 
Patria /pretriy�/peytriy�/. Lat. The country, neighbor
hood, or vicinage; the men of the neighborhood; a jury 
of the vicinage. Synonymous, in this sense, with "pais. " 
Patria laboribus et expensis non debet fatigari 
/pretriy� l�b6r�b�s et �kspens�s non deb�t fret�geray/. A 
jury ought not to be harassed by labors and expenses. 
Patria potestas /pretriy� p�testres/. Lat. In Roman 
law, paternal authority; the paternal power. This term 
denotes the aggregate of those peculiar powers and 
rights which, by the civil law of Rome, belonged to the 
head of a family in respect to his wife, children (natural 
or adopted), and any more remote descendants who 
sprang from him through males only. Anciently, it was 
of very extensive reach, embracing even the power of 
life and death, but was gradually curtailed, until finally 
it amounted to little more than a right in the paterfami
lias to hold as his own any property or acquisitions of 
one under his power. 
Patria potestas in pietate debet, non in atrocitate, 
consistere /pretriy� p�testres in pay�teytiy deb�t, n6n in 
�tros�teytiy k�nsist�riy /. Paternal power should consist 
[or be exercised] in affection, not in atrocity. 
Patricide /pretr�sayd/. One who has killed his or her 
father. The act of killing one's father. 
Patrimonial /pretr�m6wn(i)y�l/. Pertaining to a patri
mony; inherited from ancestors, but strictly from the 
direct male ancestors. 
Patrimonium /pretr�m6wn(i)y�m/. In civil law, that 
which is capable of being inherited. The private and 
exclusive ownership or dominion of an individual. 
Things capable of being possessed by a single person to 
the exclusion of all others (or which are actually so 
possessed) are said to be in patrimonio; if not capable of 
being so possessed (or not actually so possessed), they are 
said to be extra patrimonium. 
Patrimony /pretr�m�niy/. Such estate as has descended 
in the same family. Estates which have descended or 
been devised in a direct line from the father, and, by 
extension, from the mother or other ancestor. It has 
been held that the word is not necessarily restricted to 
property inherited directly from the father. 
Patrimony is the total mass of existing or potential 
rights and liabilities attached to a person for the satis
faction of his economic needs and patrimony is always 
PATTERN OF RACKETEERING ACTIVITY 
attached to a natural or juridical person. Creech v. 
Capitol Mack, Inc., La., 287 So.2d 497, 503. 
Patrimony of a debtor is totality of assets and liabili
ties susceptible of pecuniary evaluation; as practical 
matter, debtor's patrimony consists of assets which are 
subject to execution for benefit of creditor. Hastings v. 
Dinning, La.App., 314 So.2d 744, 746. 
Patrocinium /pretr�siniy�m/. In Roman law, patronage; 
protection; defense. The business or duty of a patron or 
advocate. 
Patrolman. A policeman assigned to duty in patrolling 
a certain beat or district; also the designation of a grade 
or rank in the organized police force of large cities, a 
patrolman being generally a private in the ranks, as 
distinguished from sergeants, lieutenants, etc. See also 
Police officer. 
Patron. In ordinary usage one who protects, counte
nances, or supports some person or thing. One who 
habitually extends material assistance; a regular cus
tomer; a protector or benefactor. 
Patronage /pretr�n�j/peytro /. Collective term to de
scribe the customers of a business. Also, the practice of 
a public official in making appointments to public (non
civil service) offices and to confer honors. The right of 
appointing to office, considered as a perquisite, or per
sonal right; not in the aspect of a public trust. 
Patronize /peytr�nayz/pretrO /. To act as a patron, ex
tend patronage, countenance, encourage, favor. 
Patronum faciunt dos, redificatio, fundus /p�tr6wn�m 
feysh(iy)�nt d6ws, iyd�f�keysh(iy)ow, f:}nd�s/. Endow
ment, building, and land make a patron. 
Patruelis /pretruwiyl�s/. Lat. In the civil law, a cousin
german by the father's side; the son or daughter of a 
father's brother. 
Patruus /pretruw�s/. Lat. An uncle by the father's 
side; a father's brother. 
Patruus magnus /pretruw�s mregn�s/. A grandfather's 
brother; granduncle. 
Patruus major /pretruw�s mey j�r/. A great-grandfa
ther's brother. 
Patruus maximus /pretruw�s mreks�m�s/. A great
grandfather's father's brother. 
Pattern. A reliable sample of traits, acts or other ob
servable features characterizing an individual. Richer
son v. Superior Court In and For Sacramento County, 
App., 70 Cal.Rptr. 350, 352. 
The words "pattern or practice" within the Civil 
Rights Act provision which permits the Attorney Gener
al to seek relief when there is a pattern or practice of 
resistance to the Act is more than isolated or accidental 
instance of conduct in violation of the Act; it means an 
intentional, regular or repeated violation of the right 
granted by the Act. U. S. v. Hunter, C.A.Md., 459 F.2d 
205,217. 
Pattern of racketeering activity. As used in the racke
teering statute (RICO), 18 U.S.C.A. § 1962, a "pattern of

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PATTERN OF RACKETEERING ACTIVITY 
racketeering activity" includes two or more related 
criminal acts that amount to, or threaten the likelihood 
of, continued criminal activity. H.J. Inc. v. Northwest
ern Bell Telephone Co., 109 S.Ct. 2893, 106 L.Ed.2d 195. 
A single illegal scheme can constitute a "pattern of 
racketeering activity," so long as the racketeering acts 
meet the "continuity plus relationship" requirement. A 
combination of specific factors, such as the number of 
unlawful acts, the length of time over which the acts 
were committed, the similarity of the acts, the number 
of victims, the number of perpetrators, and the charac
ter of the unlawful activity can be considered in deter
mining whether a pattern existed. Barticheck v. Fideli
ty Union Bank, C.A.N.J., 832 F.2d 36, 39. See also 
RIC O laws. 
Pauper /p6p�r/. A person so poor that he must be 
supported at public expense. A suitor who, on account 
of poverty, is allowed to sue or defend without being 
chargeable with costs; also, an indigent criminal defen
dant who has a right to assigned defense counsel. Fed. 
R.Crim.P. 44; Fed.R.App.P. 24; 18 U.S.C.A. § 3006A; 
28 U.S.C.A. § 1915. See Counsel, right to; Indigent; In 
forma pauperis; Pauper's oath. 
Dispauper. To deprive one of the status of a pauper and 
of any benefits incidental thereto: particularly, to take 
away the right to sue in forma pauperis because the 
person so suing, during the progress of the suit, has 
acquired money or property which would enable him to 
sustain the costs of the action. 
Pauperies /p6p�riyz/. Lat. In Roman law, damage or 
injury done by an irrational animal, without active fault 
on the part of the owner, but for which the latter was 
bound to make compensation. 
Pauper's oath. Affidavit, verification, or oath by person 
seeking public assistance, appointment of counsel, waiv
er of court fees, or other free services or benefits, that he 
or she is in fact impoverished and as such unable to pay 
for such. See e.g. 28 U.S.C.A. § 1915. See also Poverty 
affidavit. 
Pawn, v. To deliver personal property to another in 
pledge, or as security for a debt or sum borrowed. 
Pawn, n. A bailment of goods to a creditor, as security 
for some debt or engagement; a pledge; a deposit of 
personal property made to a pawnbroker as security for 
a loan. That sort of bailment when goods or chattels 
are delivered to another as security to him for money 
borrowed of him by the bailor. 
Also the specific chattel delivered to the creditor as a 
pledge. 
See Bailment; Pledge. 
Pawnbroker. A person whose business is to lend mon
ey, usually in small sums, on security of personal prop
erty deposited with him or left in pawn. 
Pawnee. The person receiving a pawn, or to whom a 
pawn is made; the person to whom goods are delivered 
by another in pledge. 
Pawnor. The person pawning goods or delivering goods 
to another in pledge. 
1128 
Pax regis /preks riyj�s/. Lat. The peace of the king; 
that is, the peace, good order, and security for life and 
property which it is one of the objects of government to 
maintain, and which the king, as the personification of 
the power of the state, is supposed to guaranty to all 
persons within the protection of the law. 
This name was also given, in ancient times, to a 
certain privileged district or sanctuary. The pax regis, 
or verge of the court, as it was afterwards called, extend
ed from the palace-gate to the distance of three miles, 
three furlongs, three acres, nine feet, nine palms, and 
nine barleycorns. 
Pay, n. Compensation; wages; salary; commissions; 
fees. The act or fact of paying or being paid. See 
Discharge; Payment. 
Pay, v. To discharge a debt by tender of payment due; 
to deliver to a creditor the value of a debt, either in 
money or in goods, for his acceptance. U.C.C. §§ 2-511, 
3-604. To compensate for goods, services or labor. See 
also Discharge; Payment. 
Payable. Capable of being paid; suitable to be paid; 
admitting · or demanding payment; justly due; legally 
enforceable. A sum of money is said to be payable when 
a person is under an obligation to pay it. Payable may 
therefore signify an obligation to pay at a future time, 
but, when used without qualification, term normally 
means that the debt is payable at once, as opposed to 
"owing." 
Payable after sight. Means that instrument is payable 
after acceptance of bill or protest for nonacceptance. 
Payable on demand. Instruments payable on demand 
include those payable at sight or on presentation and 
those in which no time for payment is stated. U.C.C. 
§ 3-108. 
Payables. See Account (Account payable). 
Payable to bearer. A negotiable instrument is payable 
to bearer when by its terms it is payable to (a) bearer or 
the order of bearer; or (b) a specified person or bearer; 
or (c) "cash" or the order of "cash", or any other indica
tion which does not purport to designate a specific 
payee. U.C.C. § 3-111. See also Negotiation. 
Payable to order. A negotiable instrument is payable 
to order when by its terms it is payable to the order or 
assigns of any person therein specified with reasonable 
certainty, or to him or his order, or when it is conspic
uously designated on its face as "exchange" or the like 
and names a payee. U.C.C. § 3-110. See also Negotia
tion. 
Pay any bank. After an item has been indorsed with 
the words "pay any bank" or the like, only a bank may 
acquire the rights of a holder: (a) until the item has 
been returned to the customer initiating collection; or 
(b) until the item has been specially indorsed by a bank 
to a person who is not a bank. U.C.C. § 4-201(2). 
Paydown. Repayment of loan but in an amount less 
than entire principal of loan. See also Payment (Part 
payment).

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1129 
Payee. The person in whose favor a bill of exchange, 
promissory note, or check is made or drawn; the person 
to whom or to whose order a bill, note, or check is made 
payable; the person to whom an instrument is payable 
upon issuance. The entity to whom a cash payment is 
made or who will receive the stated amount of money on 
a check. One to whom money is paid or is to be paid. 
See Draft; Fictitious payee. 
Payer, or payor. One who pays, or who is to make a 
payment; particularly the person who is to make pay
ment of a check, bill or note. Correlative to "payee." 
Paying quantities. This phrase, as used in oil and gas 
leases, when applied to the production of oil, means such 
a quantity as will pay a profit on the cost of operating 
the well. Sufficient quantities to pay a reasonable prof
it on the whole sum required to be expended, including 
the cost of drilling, equipping, and operating the well. 
If the well pays a profit, even small, over operating 
expenses, it produces in paying quantities, though it 
may never repay its cost, and the operation as a whole 
may prove unprofitable. 
Payment. The fulfilment of a promise, or the perform
ance of an agreement. A discharge of an obligation or 
debt, and part payment, if accepted, is a discharge pro 
tanto. 
In a more restricted legal sense payment is the per
formance of a duty, promise, or obligation, or discharge 
of a debt or liability, by the delivery of money or other 
value by a debtor to a creditor, where the money or 
other valuable thing is tendered and accepted as extin
guishing debt or obligation in whole or in part. Also the 
money or other thing so delivered. U.C.C. §§ 2-511, 
3-604. 
Payment is a delivery of inoney or its equivalent in 
either specific property or services by one person from 
whom it is due to another person to whom it is due. 
Sizemore v. E. T. Barwick Industries, Inc., 225 Tenn. 
226, 465 S.W.2d 873, 875. A discharge in money or its 
equivalent of an obligation or debt owing by one person 
to another, and is made by debtor's delivery to creditor 
of money or some other valuable thing, and creditor's 
receipt thereof, for purpose of extinguishing debt. All
mon v. Allmon, Mo.App., 306 S.W.2d 651, 655. 
Under Internal Revenue Code provision allowing de
duction for charitable contribution of which payment is 
made within taxable year, "payment" need not be in 
money, but subject matter must have been placed be
yond dominion and control of donor. Pauley v. U. S., 
C.A.CaL, 459 F.2d 624, 626. 
The execution and delivery of negotiable papers is not 
payment unless it is accepted by the parties in that 
sense. U.C.C. § 3-410. 
See also Compuls ory payment; Conditional payment; 
Constructive payment; Down payment; Final payment; 
Guaranty of payment; Installment credit; Ins tallment loan; 
Installment sale; Involu ntary payment; Liquidation; Lump
sum payment; Pay. 
Affirmative defense. Payment is an affirmative de
fense which must be pleaded under Fed.R. Civil P. 8(c). 
PAYROLL TAX 
It is a plea in avoidance. Harrison v. Leasing Associ
ates, Inc., Tex.Civ.App., 454 S.W.2d 808, 809. 
Balloon payment. See 8alloon payment. 
Part payment. The reduction of any debt or demand by 
the payment of a sum less than the whole amount 
originally due. 
The rule of partial payments is to apply the payment, 
in the first place, to the discharge of the interest then 
due. If the payment exceeds the interest, the surplus 
goes toward discharging the principal, and the subse
quent interest is to be computed on the balance of 
principal remaining due. If the payment be less than 
the interest, the surplus of the interest must not be 
taken to augment the principal; but interest continues 
on the former principal until the period of time when 
the payments, taken together, exceed the interest then 
due, to discharge which they are applied, and the sur
plus, if any, is to be applied towards the discharge of the 
principal, and the interest is to be computed on the 
balance as aforesaid, and this process continues until 
final settlement. 
Payment into court. The act of a defendant in deposit
ing the amount which he admits to be due, with the 
proper officer of the court, for the benefit of the plaintiff 
and in answer to his claim. Fed.R. Civil P. 67. 
Voluntary payment. A payment made by a debtor of his 
own will and choice, as distinguished from one exacted 
from him by process of execution or other compulsion. 
Payment bond. See Mi ller Act; Performance bond. 
Payment guaranteed. "Payment guaranteed" or equiv
alent words added to a signature mean that the signer 
engages that if the instrument is not paid when due he 
will pay it according to its tenor without resort by the 
holder to any other party. U.C.C. § 4-416. 
Payment in due course. With respect to negotiable 
instruments, means payment at or after the instru
ment's maturity date to the holder in good faith and 
without notice that the title is defective. Under the 
Negotiable Instruments Law, a negotiable instrument 
could be discharged by payment in due course by or on 
behalf of the principle debtor; see e.g. Bourg v. Wiley, 
La., 398 So.2d 13, 15. The Uniform Commercial Code 
§ 3-603 eliminates any reference to payment in due 
course. It is now covered by § 3-601(3). 
Payment into court. The deposit of funds or other 
things capable of delivery with the court during the 
pendency of a lawsuit. Fed.R.Civil P. 67. 
Payor. The person by whom a bill or note has been or 
should have been paid. 
Payor bank. A bank by which an item is payable as 
drawn or accepted, U.C.C. § 4-105(b), which includes the 
drawee of a check. Term includes drawee bank and also 
bank at which item is payable if item constitutes order 
on bank to pay. Phelan v. University Nat. Bank, 85 
Ill.App.2d 56, 229 N .E.2d 374, 377. 
Payroll tax. A tax on an employees' salary or on the 
income of a self-employed individuaL Federal and state

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PAYROLL TAX 
income taxes are paid by the employee or the self-em
ployed individual; social security taxes are paid both by 
the employer and employee and paid solely by the 
self-employed individual. Unemployment taxes are paid 
by the employer. 
PBGC. See Pension Benefit Guaranty Corporation. 
P.C. An abbreviation for "Pleas of the Crown;" some
times also for "Privy Council," "Parliamentary Cases," 
"Patent Cases," "Practice Cases," "Penal Code," "Politi
cal Code," or "Professional Corporation." 
Peace. For purposes of breach of the peace statute, 
peace is that state and sense of safety which is necessary 
to the comfort and happiness of every citizen, and which 
government is instituted to secure. State v. Boles, 5 
Conn.Cir. 22, 240 A.2d 920, 927. Term, within law of 
breach of the peace, means tranquility enjoyed by citi
zens of the municipality or community where good order 
reigns among its members. State v. Edwards, 239 S.C. 
339, 123 S.E.2d 247, 249. 
The tranquility enjoyed by a political society internal
ly, by the good order which reigns among its members, 
and externally by the good understanding it has with all 
other nations. Applied to the internal regulations of a 
nation, peace imports, in a technical sense, not merely a 
state of repose and security as opposed to one of violence 
or warfare, but likewise a state of public order and 
decorum. Catlette v. U. S., C.C.A.W.Va., 132 F.2d 902, 
906. 
Articles of the peace. See Articles. 
Bill of peace. See Bill. 
Breach of peace. See Breach. 
Conservator of the peace. See Conservator. 
Justice of the peace. See that title. 
Peace and quietude. Public tranqUility and obedience to 
law, and that public order and security which is com
manded by the laws of a particular sovereign. 
Peace officers. This term is variously defined by statute 
in the different states; but generally it includes sheriffs 
and their deputies, constables, marshals, members of the 
police force of cities, and other officers whose duty is to 
enforce the local government laws and ordinances and 
preserve the public peace. In general, any person who 
has been given general authority to make arrests. Gen
erally a "peace officer" is a person designated by public 
authority to keep the peace and arrest persons guilty or 
suspected of crime and he is a conservator of the peace, 
which term is synonymous with the term "peace offi
cer". Vandiver v. Manning, 215 Ga. 874, 114 S.E.2d 
121, 124. See also Police officer. 
Peace of God and the church. In old English law, that 
rest and cessation which the king's subjects had from 
trouble and suit of law between the terms and on 
Sundays and holidays. 
Public peace. The peace or tranquility of the communi
ty in general; the good order and repose of the people 
composing a state or municipality. That invisible sense 
1130 
of security which every man feels so necessary to his 
comfort, and for which all governments are instituted. 
Public peace and quiet. Peace, tranquility, and order 
and freedom from agitation or disturbance; the security, 
good order, and decorum guaranteed by civil society and 
by the law. 
Peaceable. Free from the character of force, violence, 
or trespass; as, a "peaceable entry" on lands. Peaceable 
possession of real estate is such as is acquiesced in by all 
other persons, including rival claimants, and not dis
turbed by any forcible attempt at ouster nor by adverse 
suits to recover the possession or the estate. Stanley v. 
Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259. 
Compare Adverse possession. 
Peace bond. Type of surety bond required by a judge or 
magistrate of one who has threatened to breach the 
peace or has a history of such misconduct. 
Peace officer. See Police officer. 
Peccata contra naturam sunt gravissima /p;}keyt;} 
k6ntr;} n;}t(y)ur�m s�nt gr;}vis;}m;}/. Crimes against na
ture are the most heinous. 
Peccatum peccato addit qui culpre quam facit patro
cinia defensionis adjungit /p;}keyt;}m p;}keytow red;}t 
kway k�lpiy kwrem feys;}t pretr;}sin(i)y;} d;}fenshiy6wn;}s 
;}j�nj;}t/. He adds fault to fault who sets up a defense of 
a wrong committed by him. 
Peck. A measure of two gallons; a dry measure. 
Peculation. The unlawful appropriation, by a deposi
tary of public funds, of the property of the government 
intrusted to his care, to his own use, or that of others. 
The fraudulent misappropriation by one to his own use 
of money or goods intrusted to his care. 
Peculatus /peky;}leyt;}s/. Lat. In the civil law, the 
offense of stealing or embezzling the public money. 
Peculiar, adj. /p;}kyuwl(i)y;}r/. Particular or special. 
Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 
S.W.2d 323, 330. 
Peculium /p;}kyuwl(i)y;}m/. Lat. In Roman law, such 
private property as might be held by a slave, wife, or son 
who was under the patria potestas, separate from the 
property of the father or master, and in the personal 
disposal of the owner. 
Pecunia /p;}kyuwn(i)y;}/. In old English law, goods and 
chattels. 
In the civil law, property in general, real or personal; 
anything that is actually the subject of private property. 
In a narrower sense, personal property; fungible things. 
In the strictest sense, money. This has become the 
prevalent, and almost the exclusive, meaning of the 
word. 
Pecunia constituta /p;}kyuwn(i)y;} konst;}t(y)uwt;}/. In 
Roman law, money owing (even upon a moral obligation) 
upon a day being fixed (constituta) for its payment, 
became recoverable upon the implied promise to pay on 
that day, in an action called "de pecunia constituta, " the

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implied promise not amounting (of course) to a stipula
tio. 
Pecunia non numerata /p;}kyu.wn(i)y;} nonn(y)uw
m;}reyt;}/. In the civil law, money not paid. The subject 
of an exception or plea in certain cases. 
Pecunia numerata /p;}kyu.wn(i)y;} n(y)uwm;}reyt;}/. 
Money numbered or counted out; i.e., given in payment 
of a debt. 
. 
Pecuniary /p;}kyuwn(i)y;}riy/. Monetary; relating to 
money; financial; consisting of money or that which 
can be valued in money. 
As to pecuniary Consideration; Damages; and Legacy; 
see those titles. 
Pecuniary benefits. Benefits that can be valued in 
money. Dallas Ry. & Terminal Co. v. Moore, Tex.Civ. 
App., 52 S.W.2d 104. Pecuniary benefits available to 
parents by reason of death of an adult child encompass 
those benefits, including money, that can be reasonably 
estimated in money, such as labor, services, kindness 
and attention of child to parents. Borak v. Bridge, 
Tex.Civ.App., 524 S.W.2d 773, 776. 
Pecuniary bequest. A bequest of money to an heir by a 
decedent. A bequest of money to a legatee by a testator. 
Also known as a monetary bequest. See Bequest. 
Pecuniary causes. In English ecclesiastical practice, 
causes arising from the withholding of ecclesiastical 
dues, or the doing or neglecting some act relating to the 
church whereby some damage accrues to the plaintiff. 3 
Bl.Com m. 88. 
Pecuniary condition. Within statute relative to obtain
ing goods by false pretenses, comprehends, not only 
money in hand, but property and all other assets of 
value constituting an existing fact that go to make up 
financial responsibility as a basis of credit. 
Pecuniary consideration. See Consideration. 
Pecuniary damages. See Damages; Pecuniary loss. 
Pecuniary formulas. In federal estate taxation, a gift 
to a surviving spouse of an amount equal to the maxi
mum marital deduction to which the estate is entitled, 
less the value of any other interests passing to the 
surviving spouse that qualify for the marital deduction. 
See also Marital deduction. 
Pecuniary injury. Within meaning of wrongful death 
statute providing that damages may be awarded "taking 
into consideration the pecuniary injury or injuries re
sulting from such death to the surviving party or parties 
entitled to the judgment," term "pecuniary injury" 
means a reasonable expectation of pecuniary benefits 
from the continued life of the deceased. Stang v. Hertz 
Corp., App., 81 N.M. 69, 463 P.2d 45, 48. Such compen
sation includes damages for deprivation of support, of 
companionship, guidance, advice, love and affection of 
deceased. Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352, 
355. See also Consortium; Damages (Pecuniary dam
ages); Loss; Pecuniary loss. 
PEDESTRIAN 
Pecuniary interest. A direct interest related to money 
in an action or case as would, for example, require a 
judge to disqualify himself from sitting on a case if he 
owned stock in corporate party. 
Pecuniary legacy. See Legacy. 
Pecuniary loss. A loss of money, or of something by 
which money or something of money value may be 
acquired. As applied to a dependent's loss from death 
pecuniary loss means the reasonable expectation of pe
cuniary benefit from the continued life of the deceased: 
such includes loss of services, training, nurture, edu
cation, guidance, and society. Sea Land Services, Inc. v. 
Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9. 
Pecuniary loss within Wrongful Death Act means 
what the life of decedent was worth, in a pecuniary 
sense, to the survivors, including loss of care, love, and 
affection. Flynn v. Vancil, 89 Ill.App. 368, 232 N.E.2d 
473, 474. 
See also Pecuniary injury. 
Pecunia sepulchralis /p;}kyuwn(i)y;} sep;}lkreybs/. 
Money anciently paid to the priest at the opening of a 
grave for the good of the deceased's soul. 
Pecunia trajectitia /p;}kyuwn(i)y;} trrejektish(iy);}/. In 
the civil law, a loan in money, or in wares which the 
debtor purchases with the money to be sent by sea, and 
whereby the creditor, according to the contract, assumes 
the risk of the loss from the day of the departure of the 
vessel until the day of her arrival at her port of destina
tion. Interest does not necessarily arise from this loan, 
but when it is stipulated for, it is termed "n auticum 
frenus" (maritime interest), and, because of the risk 
which the creditor assumes, he is permitted to receive a 
higher interest than usual. 
Pedage /ped;}j/. In old English law, a toll or tax paid by 
travelers for the privilege of passing, on foot or mount
ed, through a forest or other protected place. 
Pedagium /p;}deyj(iy);}m/. L. Lat. Pedage (q.v.). 
Pedaulus /p;}d61;}s/. (Lat. Pes foot). In civil law, a 
judge who sat at the foot of the tribunal, i.e. on the 
lowest seats, ready to try matters of little moment at 
command of the prretor. 
Peddler. An itinerant trader; person who goes about 
seeking sales and deliveries of articles to possible cus
tomers. Case v. Comptroller of State of Md., 219 Md. 
282, 149 A.2d 6, 9. A person who sells small goods 
which he carries with him in traveling about from place 
to place, and whose activities generally require that he 
be licensed by the city or town within which he peddles. 
See also Hawker. 
Pederasty /ped;}rrestiy/. In criminal law, the unnatural 
carnal copulation of male with male, particularly of a 
man with a boy; a form of sodomy (q.v.). 
Pedestrian. While "pedestrians" are ordinarily under
stood to be persons traveling on foot, they may be on 
roller skates, ice skates, stilts or crutches. Petties v. 
Petties, 210 N.J.Super. 14, 509 A.2d 190, 192. The 
statutory definition of "pedestrian" is broad enough to

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PEDESTRIAN 
include persons standing upon the highway as well as 
those traversing it. See v. Willett, 58 Wash.2d 39, 360 
P.2d 592, 593. Person on foot does not cease to be 
"pedestrian" within policy covering injuries sustained 
while a pedestrian merely because he is not in motion. 
Peterson v. Continental Cas. Co., 25 Utah 2d 408, 483 
P.2d 445, 446. 
Pedigree /ped�griy/. Lineage, descent, and succession 
of families; line of ancestors from which a person de
scends; genealogy. An account or register of a line of 
ancestors. Family relationship. 
Evidence. The "pedigree exception" to hearsay rule 
allows consideration of hearsay evidence regarding a 
person's family relationship as proof of existence of the 
relationship. Smith v. Givens, 223 Va. 455, 290 S.E.2d 
844, 846. Statements of fact concerning genealogy are 
not excluded by the hearsay rule, even though the 
declarant is available as a witness. Fed.Evid.R. 803. 
Pedis abscissio /piyd�s rebsish(iy)ow/. Lat. In old feu
dal criminal law, the cutting off a foot; a punishment 
anciently inflicted instead of death. 
Pedis positio /piyd�s p�zish(iy)ow/. Lat. In the civil 
and old English law, a putting or placing of the foot. A 
term used to denote the possession of lands by actual 
corporal entry upon them. 
Pedis possessio /piyd�s p�zesh(iy)ow/. Lat. A foothold; 
an actual possession. To constitute adverse possession 
there must be pedis possessio, or a substantial inclosure. 
Doctrine which normally only governs rights prior to 
discovery of valuable minerals while party is still pros
pecting; it protects prospector from intervention by an
other prospector, but only so long as he remains in 
actual possession of the claim and is diligently searching 
for minerals. Goldfield Mines, Inc. v. Hand, App., 147 
Ariz. 498, 711 P.2d 637, 644. 
Peeping tom. As used in reference to, e.g., "Peeping 
Tom" statute, has commonly understood meaning as one 
who sneaks up to window and peeps in for purpose of 
spying on and invading privacy of inhabitants. Matter 
of Banks, 295 N.C. 236, 244 S.E.2d 386, 389. 
Peerage /pir�j/. The rank or dignity of a peer or noble
man. Also the body of nobles taken collectively. In 
England, by the Life Peerages Act of 1958 the House of 
Lords exercises original jurisdiction over all matters and 
claims regarding peerage. 
Peeress /pir�s/. A woman who belongs to the nobility, 
which may be either in her own right or by right of 
marriage. 
Peer Review Organizations. A Peer Review Organiza
tion in the medicare program is essentially an enforce
ment agent of the federal government for purposes of 
Health and Human Services regulations under which 
the PRO monitors compliance with Health and Human 
Services' rules affecting private hospitals seeking com
pensation from the agency. American Hospital Associa
tion v. Bowen, C.A.D.C., 834 F.2d 1037, 1048. 
1132 
Peers /pirz/. In feudal law, the vassals of a lord who sat 
in his court as judges of their co-vassals, and were called 
"peers," as being each other's equals, or of the same 
condition. The nobility of Great Britain, being the lords 
temporal having seats in parliament, and including 
dukes, marquises, earls, viscounts, and barons. 
Equals; those who are a man's equals in rank and 
station; thus "trial by a jury of his peers" means trial 
by jury of citizens. For Judgment of his peers, see 
Judgment. 
Peers of fees. Vassals or tenants of the same lord, who 
were obliged to serve and attend him in his courts, being 
equal in function. These were termed "peers of fees," 
because holding fees of the lord, or because their busi
ness in court was to sit and judge, under their lords, of 
disputes arising upon fees; but, if there were too many 
in one lordship, the lord usually chose twelve, who had 
the title of peers, by way of distinction; whence, it is 
said, we derive our common juries and other peers. 
Peg. To fix the price of something, as the government 
may stabilize the price of gold by offering to buy all the 
gold offered at a stated price. Speculators in stocks may 
peg the price of securities by frequent buying and selling 
at the pegged price, though today such manipulation is 
illegal. 
Peine fort et dure /peyn fort ey dyur/. L. Fr. In old 
English law, a special form of punishment for those who, 
being arraigned for felony, obstinately "stood mute," 
that is, refused to plead or to put themselves upon trial. 
It is described as a combination of solitary confinement, 
slow starvation, and crushing the naked body with a 
great load of iron. This atrocious punishment was vul
garly called "pressing to death." 
Peles /piylz/. Issues arising from or out of a thing. 
Pelfe, or pelfre /pelf(�r)/. Booty; also the personal 
effects of a felon convict. 
Pellage /pel�j/. The custom or duty paid for skins of 
leather. 
Pellex /peleks/. Lat. In Roman law, a concubine. 
Pells, clerk (or master) of the /klark �v i5� 
pelz/mast�rO /. Formerly, an officer in the English ex
chequer, who entered every teller's bill on the parch
ment rolls, i.e., "pells," commonly two in number, one 
being the pell or roll of receipts, and the other the pell 
or roll of disbursements. 
Penal. Punishable; inflicting a punishment; containing 
a penalty, or relating to a penalty. 
Penal action. In its broadest context, it refers to crimi
nal prosecution. More particularly, it refers to a civil 
action in which a wrongdoer is subject to a fine or 
penalty payable to the aggrieved party (e.g. punitive 
damages). 
The word "penal" is inherently a much broader term 
than "criminal" since it pertains to any punishment or 
penalty and relates to acts which are not necessarily 
delineated as criminal. State v. Lowry, 95 N.J.Super. 
307, 230 A.2d 907, 913. Action is essentially "penal" if

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1133 
amount sought to be recovered is arbitrarily exacted for 
some act or omission of the defendant. Tasner v. U. S. 
Industries, Inc., D.C.Ill., 379 F.Supp. 803, 806. 
An action upon a penal statute; an action for the 
recovery of a penalty given by statute. Smith Engineer
ing Works v. Custer, 194 Oklo 318, 151 P.2d 404, 407, 
408. In a broad sense, the term has been made to 
include all actions in which there may be a recovery of 
exemplary or vindictive damages, as suits for libel and 
slander, or in which special, double, or treble damages 
are given by statute, such as actions to recover money 
paid as usury or for violation of antitrust laws. But in a 
more particular sense it means (1) an action on a statute 
which gives a certain penalty to be recovered by any 
person who will sue for it, or (2) an action in which the 
judgment against the defendant is in the nature of a fine 
or is intended as a punishment, actions in which the 
recovery is to be compensatory in its purpose and effect 
not being penal actions but civil suits, though they may 
carry special damages by statute. See Damages (Exem
plary or punitive damages, Treble damages). 
Penal bill. An instrument formerly in use, by which a 
party bound himself to pay a certain sum or sums of 
money, or to do certain acts, or, in default thereof, to 
pay a certain specified sum by way of penalty; thence 
termed a "penal sum." These instruments have been 
superseded by the use of a bond in a penal sum, with 
conditions. See Penal bond. 
Penal bond. A promise to pay a named sum of money, 
the penalty, in the event of nonperformance, with a 
condition underwritten that, if a stipulated collateral 
thing, other than the payment of money, be done or 
forborne, the obligation shall be void. Maryland Casual
ty Co. v. Kansas City, Mo., C.C.A.Mo., 128 F.2d 998, 
1004. Bond conditioned upon forfeiture of penalty for 
its breach. See Penalty. 
Penal clause. A secondary obligation entered into for 
purpose of enforcing performance of a primary obli
gation, and nature of penalty is by way of compensation 
for damages and not as punishment for failure to per
form obligation. Also a clause in a statute declaring a 
penalty for a violation of the preceding clauses. Set? 
Penalty clause. 
Penal code. Bringing together and codification of sub
stantive criminal laws of state or federal government; 
e.g. California Penal Code; Title 18 of U.S. Code. Sever
al state Penal or Criminal Codes are patterned on the 
A.L.I. Model Penal Code. 
Penal institutions. Generic term to describe all places 
of confinement for those convicted of crime such as jails, 
prisons, workhouses, houses of correction, and other 
correctional institutions. 
Penal laws. Term, in general, refers to state and feder
al statutes that define criminal offenses and spec ify 
corresponding fines and punishment. Statutes imposing 
a penalty, fine, or punishment for certain offenses of a 
public nature or wrongs committed against the state. 
PENALTY 
Strictly speaking, statutes gIvmg a private action 
against a wrongdoer are not penal in their nature, 
neither the liability imposed nor the remedy given being 
penal. If the wrong done is to the individual, the law 
giving him a right of action is remedial, rather than 
penal, though the sum to be recovered may be called a 
"penalty" or may consist in double or treble damages. 
Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 
L.Ed. 11 23. 
Where a statute is both penal and remedial, as where 
it is penal in one part and remedial in the other, it 
should be considered as a "penal statute" when it is 
sought to enforce the penalty, and as a "remedial stat
ute" when it is sought to enforce the remedy. Collins v. 
Kidd, D.C.Tex., 38 F.Supp. 634, 637. 
See also Penal code. 
Penal servitude. In Eng�ish criminal law, is a punish
ment which consists in keeping an offender in confine
ment, and compelling him to labor. 
Penal statutes. See Penal code; Penal laws. 
Penal sum. A sum agreed upon in a bond, to be forfeit
ed if the condition of the bond is not fulfilled. See also 
Penal bond; Penalty. 
Penalty. An elastic term with many different shades of 
meaning; it involves idea of punishment, corporeal or 
pecuniary, or civil or criminal, although its meaning is 
generally confined to pecuniary punishment. Allied v. 
Graves, 261 N.C. 31, 134 S.E.2d 186, 192. 
The sum of money which the obligor of a bond under
takes to pay in the event of his omitting to perform or 
carry out the terms imposed upon him by the conditions 
of the bond. A penalty is a sum inserted in a contract, 
not as a measure of compensation for its breach, but 
rather as punishment for default, or by way of security 
for actual damages which might be sustained by reason 
of nonperformance. Stein v. Bruce, Mo.App., 366 
S.W.2d 732, 735. The sum a party agrees to pay in the 
event of a contract breach, but which is fixed, not as a 
pre-estimate of probable actual damages, but as a pun
ishment, the threat of which is designed to prevent the 
breach. Westmount Country Club v. Kameny, 82 N.J. 
Super. 200, 197 A.2d 379, 382. 
A penalty provision operates to compel performance of 
act and usually becomes effective only in event of de
fault on which a forfeiture is compelled without regard 
to actual damages sustained by party aggrieved by 
breach. Garrett v. Coast and Southern Federal Sav. and 
Loan Ass'n, 9 C.3d 731, 108 Cal.Rptr. 845, 850. See 
Penalty clause. 
A penalty is a sum of money which the law exacts 
payment of by way of punishment for doing some act 
which is prohibited or for not doing some act which is 
required to be done. Hidden Hollow Ranch v. Collins, 
146 Mont. 321, 406 P.2d 365, 368. A statutory liability 
imposed on wrongdoer in amount which is not limited to 
damages suffered by party wronged. Missouri-Kansas
Texas R. Co. v. Standard Industries, Inc., 192 Kan. 381, 
388 P.2d 632, 634.

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PENALTY 
See also Fine; Forfeiture; Penal action; Statutory penal
ty. 
Penalty clause. Provision in contract, loan agreement, 
savings instrument or the like providing penalties for 
default, late or missed payments, early withdrawals, etc. 
Such clauses are generally not enforceable by the courts. 
A provision for liquidated damages, however, will be 
enforced by the courts but the liquidated damages must 
be a reasonable estimate at the time of contracting of 
the likely damages from breach. Whether a provision 
for damages is a penalty clause or a liquidated damages 
clause is a question of law. Lake River Corporation v. 
Carborundum Co., C.A.I1l., 769 F.2d 1284, 1288-92. 
Penance. An ecclesiastical punishment inflicted by an 
ecclesiastical court for some spiritual offense. 
Pendency. Suspense; the state of being pendent or 
undecided; the state of an action, etc., after it has been 
begun, and before the final disposition of it. 
Pendens /p€mdenz/. Lat. Pending; as lis pendens, a 
pending suit. 
Pendente lite /pend€mtiy hiytiy /. Lat. Pending the 
lawsuit; during the actual progress of a suit; during 
litigation. Matters "pendente lite" are contingent on 
outcome of litigation. 
Pendente lite nihil innovetur /pend€mtiy laytiy 
nay(h):)l in:)viyt:)r /. During a litigation nothing new 
should be introduced. 
Pendent jurisdiction. A principle applied in federal 
courts that allows state created causes of action arising 
out of the same transaction to be joined with a federal 
cause of action even if diversity of citizenship is not 
present. Pendent jurisdiction is discretionary matter 
whereby federal court may allow assertion of nonfederal 
claim for which no independent jurisdictional ground 
exists along with recognized federal claim between same 
parties who are properly before the court, provided 
relationship between federal claim and state claim per
mits conclusion that entire action before court comprises 
but one constitutional case. Schwab v. Erie Lackawan
na R. Co., D.C.Pa., 303 F.Supp. 1398, 1399. The doctrine 
permits federal court under some circumstances to de
termine state cause of action which otherwise would 
have to be heard in state court; if state court would be 
without authority to award damages under state law, 
the doctrine can give the federal district court no great
er power to do so. Local 20, Teamsters, Chauffeurs and 
Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 
1257, 12 L.Ed.2d 280. 
Pendent jurisdiction pertains to the concept whereby 
a federal district court, in the exercise of jurisdiction 
over a federal law claim properly before it, may also, in 
its discretion, proceed to extend jurisdiction over a relat
ed state law claim where both claims arise from a 
common nucleus of operative facts. Barnes v. Childs, 
D.C.Miss., 63 F.R.D. 628, 630. 
Pending. Begun, but not yet completed; during; before 
the conclusion of; prior to the completion of; unsettled; 
undetermined; in process of settlement or adjustment. 
1134 
Await'ing an occurrence or conclusion of action, period of 
continuance or indeterminacy. Thus, an action or suit 
is "pending" from its inception until the rendition of 
final judgment. 
An action is "pending" after it is commenced by either 
filing a complaint with the court or by the service of a 
summons. Johnson v. McCaughan, Carter & Scharrer, 
Colo.App., 672 P.2d 221, 222. 
See also Pendente lite. 
Penetration. A term used in criminal law, and denoting 
(in cases of alleged rape) the insertion of the male part 
into the female parts to however slight an extent; and 
by which insertion the offense is complete without proof 
of emission. 
Penitentiary. A prison, correctional institution, or oth
er place of confinement where convicted felons are sent 
to serve out the term of their sentence. 
Pennoyer Rule. A rule to the effect that a court which 
has no personal jurisdiction over a defendant may not 
issue an in personam judgment or decree against him. 
Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. 
Pennsylvania Rule. Under the "Pennsylvania Rule," 
when one party has committed a statutory violation that 
is claimed to have caused a collision, the rule requires 
the alleged violator to show, if he is to be freed from 
fault, that the violation could not have been a cause of 
the collision. Crown, Zellerbach Corp. v. Willamette
Western Corp., C.A.Or., 519 F.2d 1327, 1329. 
Penny stocks. Low-priced stock issues often highly 
speculative, selling at less than $1 a share. 
Pennyweight. A Troy weight, equal to twenty-four 
grains, or one-twentieth part of an ounce. 
Penology. The science of prison management and reha
bilitation of criminals. 
Pen register. A mechanical device that records the 
numbers dialed on a telephone by monitoring the elec
trical impulses caused when the dial on the telephone is 
released. It does not overhear oral communications and 
does not indicate whether calls are actually completed; 
thus, there is no recording or monitoring of the conver
sation. For regulation of use of pen registers, see 18 
U.S.C.A. § 3121 et seq. See also Wiretapping. 
Pensam /pens:)m/. The full weight of twenty ounces. 
Pensio /p€msh(iy)ow/. Lat. ln the civil law, a payment, 
properly, for the use of a thing. A rent; a payment for 
the use and occupation of another's house. 
Pension. Retirement benefit paid regularly (normally, 
monthly), with the amount of such based generally on 
length of employment and amount of wages or salary of 
pensioner. Deferred compensation for services ren
dered. Waite v. Waite, 6 C.3d 461, 99 Cal.Rptr. 325, 330, 
492 P.2d 13. See also Pension plan; Vested pension. 
Pension Benefit Guaranty Corporation. Federal 
agency established by Employee Retirement Income Se
curity Act of 1974 (ERISA), to guarantee payment of 
insured benefits if covered employee retirement plans

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1135 
terminate without sufficient assets to pay such benefits. 
29 U.S.C.A. § 1302. 
Pensioner. Recipient or beneficiary of a pension plan. 
Pension fund. Fund established by corporations, un
ions, governmental bodies, etc. to pay pension benefits to 
its retired workers. See Pension plan. 
Pension plan. A plan established and maintained by an 
employer primarily to provide systematically for the 
payment of definitely determinable benefits to his em
ployees, or their beneficiaries, over a period of years 
(usually for life) after retirement. Retirement benefits 
are measured by, and based on, such factors as years of 
service and compensation received by the employees. 
The Employees Retirement Income Security Act 
(ERISA) governs plan qualification, operation, and ad
ministration, and specifically such matters as partic
ipation requirements, funding, vesting and filing and 
reporting with the Internal Revenue Service and Labor 
Department. Pension benefits under qualified plans are 
guaranteed by the Pension Benefit Guaranty Corpora
tion. 
A stated allowance out of the public treasury granted 
by government to an individual, or to his representa
tives, for his valuable services to the country, or in 
compensation for loss or damage sustained by him in the 
public service. Frisbie v. U. S., 157 U.S. 160, 15 S.Ct. 
586, 39 L.Ed. 657. 
See also In dividual retirement account; Keogh Plan; 
Money-purchase plan; Pension trust. 
Contribu tory pension plan. A plan funded with both 
employer and employee contributions. 
Defined-contribution plan. Pension plan that provides 
benefits as determined by the accumulated contributions 
and the return on the fund's investment performance; 
the contributions are specified, but the benefits are not. 
Defined pension plan. A pension plan where the em
ployer promises specific benefits to each employee. The 
employer's cash contributions and pension expense are 
adjusted in relation to investment performance of the 
pension fund. Sometimes called a "fixed-benefit" pen
sion plan. 
Funded pension plan. See Funded. 
Noncontributory plan. A pension plan where only the 
employer makes payments to fund the plan. Compare 
Contributory pension plan, above. 
Qualified pension plan. An employer-sponsored plan 
that meets the requirements of I.R.C. § 401. If these 
requirements are met, none of the employer's contribu
tions to the plan are taxed to the employee until distrib
uted to him or her [§ 402]. The employer will be 
allowed a deduction in the year the contributions are 
made [§ 404]. 
Pension trust. Type of funded pension plan in which 
the employer transfers to trustees· an amount sufficient 
to cover cost of pensions to employees who are the 
beneficiaries of the trust. 
PER BOUCHE 
Penumbra doctrine. The implied powers of the federal 
government predicated on the Necessary and Proper 
Clause of the U.S.Const., Art. I, Sec. 8(18), permits one 
implied power to be engrafted on another implied power. 
Kohl v. U. S., 91 U.S. 367, 23 L.Ed. 449. 
Peonage Ipiy:;m;;)j/. A condition of servitude (prohibited 
by 13th Amendment) compelling persons to perform 
labor in order to pay off a debt. 
People. A state; as the people of the state of New York. 
A nation in its collective and political capacity. The 
aggregate or mass of the individuals who constitute the 
state. Loi Hoa v. Nagle, C.C.A.Cal., 13 F.2d 80, 81. In a 
more restricted sense, and as generally used in constitu
tional law, the entire body of those citizens of a state or 
nation who are invested with political power for political 
purposes. See also Citizen; Person. 
Peppercorn. A dried berry of the black pepper. In 
English law, the reservation of a merely nominal rent, 
on a lease, was sometimes expressed by a stipulation for 
the payment of a peppercorn. 
Per Ipf1r/. Lat. By, through, or by means of. 
Perambulation Ip;;)rremby;;)lE�ysh;;)n/. The act or custom 
of walking over the boundaries of a district or piece of 
land, either for the purpose of determining them or of 
preserving evidence of them. Thus, in many parishes in 
England, it is the custom for the parishioners to peram
bulate the boundaries of the parish in rogation week in 
every year. Such a custom entitles them to enter any 
man's land and abate nuisances in their way. The 
custom has now largely fallen into disuse. 
Perambulatione facienda, writ de Irit diy 
p;;)rremby;;)leyshiy6wniy freshiy€md;;)I . In old English law, 
the name of a writ which was sued by consent of both 
parties when they were in doubt as to the bounds of 
their respective estates. It was directed to the sheriff to 
make perambulation, and to set the bounds and limits 
between them in certainty. 
Per and post Ipf1r ;;)nd powst/. In old English law, to 
come in in the per is to claim by or through the person 
last entitled to an estate; as the heirs or assigns of the 
grantee. To come in in the post is to claim by a 
paramount and prior title; as the lord by escheat. 
Per annum Ip�r ren;;)m/. By the year; annually; yearly. 
Per autre vie Ip�r 6wtr;;) viyrvily/. L. Fr. For or 
during another's life; for such period as another person 
shall live. 
Per aversionem Ip�r ;;)v�rz(h)iy6wn;;)m/. Lat. In the 
civil law, by turning away. A term applied to that kind 
of sale where the goods are taken in bulk, and not by 
weight or measure, and for a single price; or where a 
piece of land is sold as containing in gross, by estima
tion, a certain number of acres. So called because the 
buyer acts without particular examination or discrimi
nation, turning his face, as it were, away. 
Per bouche Ip�r bu(w)sh/. L. Fr. By the mouth; oral
ly.

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PEReA 
Perca /park�/. A perch of land; sixteen and one-half 
feet. See Perch. 
Per capita /p�r krep�d�/. Lat. By the heads or polls; 
according to the number of individuals; share and share 
alike. This term, derived from the civil law, is much 
used in the law of descent and distribution, and denotes 
that method of dividing an intestate estate by which an 
equal share is given to each of a number of persons, all 
of whom stand in equal degree to the decedent, without 
reference to their stocks or the right of representation. 
It is the antithesis of per stirpes (q.v.). Buxton v. Noble, 
146 Kan. 671, 73 P.2d 43, 47; MacGregor v. Roux, 198 
Ga. 520, 32 S.E.2d 289, 291. A division "per capita" 
means by a number of individuals equally or share and 
share alike. Gilbert v. Wenzel, 247 Iowa 1279, 78 
N.W.2d 793, 794. 
Per cent. An abbreviation of the Latin "per centum, " 
meaning by the hundred, or so many parts in the 
hundred, or so many hundredths. 
Percentage depletion. See Depletion. 
Percentage lease. A lease, usually on a retail business 
property, using a percentage of the gross or net sales to 
determine the rent. There is usually a minimum or 
"base" rental, in the event of poor sales. 
Percentage of completion method. A method of re
porting income or loss on certain long-term contracts. 
Under this method of accounting, revenue is recognized 
gradually throughout the construction period. See also 
Completed contract method. 
Percentage order. A market or limited price order to 
buy (or sell) a stated amount of a certain stock after a 
fixed number of shares of such stock have traded. 
Perception. Taking into possession. Thus, perception 
of crops or of profits is reducing them to possession. As 
used with respect to money, it means the counting out 
and payment of a debt. Seeing, noticing or otherwise 
comprehending. 
Perch. A measure of land containing five yards and a 
half, or sixteen feet and a half in length; otherwise 
called a "rod" or "pole." 
Percolate /park�leyt/ . As used in the cases relating to 
the right of land-owners to use water on their premises, 
designates any flowage of sub-surface water other than 
that of a running stream, open, visible, clearly to be 
traced. 
Percolating waters /park�leyti1J w6t�rz/. See Water. 
Percolation test. The test to determine the capability 
of the soil to absorb and drain water, both for construc
tion and septic systems. 
Per consequens /p�r k6ns�kw�nz/. Lat. By conse
quence; consequently. 
Per considerationem curire / p�r k�nsid�reyshiy6wn
�m kyuriyiy / . Lat. In old practice, by the considera
tion (judgment) of the court. 
Per curiam /p�r kyuriy�m/. Lat. By the court. A 
phrase used to distinguish an opinion of the whole court 
1136 
from an opinion written by any one judge. Sometimes it 
denotes an opinion written by the chief justice or presid
ing judge, or to a brief announcement of the disposition 
of a case by court not accompanied by a written opinion. 
Perdida /perdiyo�/. A synonym of damages. Ponce De 
Leon v. Coca Cola Bottling Co., D.C.Puerto Rico, 75 
F.Supp. 966. 
Per diem /p�r day�mr diy�m /. By the day; an allow
ance or amount of so much per day. For example, state 
legislators are often given a per diem allowance to cover 
expenses while attending legislature sessions. General
ly, as used in connection with compensation, wages or 
salary, means pay for a day's service. 
Perdonatio utlagarire / p�rd�neysh(iy )ow �tl�geriyiy / . 
L. Lat. A pardon for a man who, for contempt in not 
yielding obedience to the process of a court, is outlawed, 
and afterwards of his own accord surrenders. 
Perduellio /p�rd(y)uwel(i)yow/. Lat. In Roman law, 
hostility or enmity towards the Roman republic; traito
rous conduct on the part of a citizen, subversive of the 
authority of the laws or tending to overthrow the 
government. 
Perdurable /p�rd(y)ur�b�l/parj�r�b�l/. In old English 
law, as applied to an estate, perdurable signifies lasting 
long or forever. Thus, a disseisor or tenant in fee upon 
condition has as high and great an estate as the rightful 
owner or tenant in fee-simple absolute, but not so per
durable. The term is chiefly used with reference to the 
extinguishment of rights by unity of seisin, which does 
not take place unless both the right and the land out of 
which it issues are held for equally high and perdurable 
estates. 
Perempt /p�rem(p)t I. In old ecclesiastical procedure, to 
waive or bar an appeal by one's own act so as partially 
to comply with or acquiesce in a sentence of a court. 
Peremption /p�rem(p)sh�n/. A nonsuit; also a quash
ing or killing. 
Peremptol"ius /p�rem(p)t6riy�s/. Lat. In the civil law, 
that which takes away or destroys forever; hence, excep
tio peremptoria, a plea which is a perpetual bar. 
Peremptory /p�rem(p)t�riy/. Imperative; final; deci
sive; absolute; conclusive; positive; not admitting of 
question, delay, reconsideration or of any alternative. 
Self-determined; arbitrary; not requiring any cause to 
be shown. Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 
274, 279. 
As to peremptory Defense; Jury instructions; Manda
mus; Nonsuit; Plea; and Writ, see those titles. 
Peremptory challenge. The right to challenge a juror 
without assigning, or being required to assign, a reason 
for the challenge. In most jurisdictions each party to an 
action, both civil and criminal, has a specified number of 
such challenges and after using all his peremptory chal
lenges he is required to furnish a reason for subsequent 
challenges. Fed.R.Crim.P. 24; 28 U.S.C.A. § 1870 (civil 
cases). See also Challenge; Jury challenge.

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1137 
Peremptory day. A day assigned for trial or hearing in 
court, absolutely and without further opportunity for 
postponement. 
Peremptory exceptions. In the civil law, any defense 
which denies entirely the ground of action. Those ex
ceptions which tend to the dismissal of the action. 
Peremptory instruction. See Jury instruction. 
Peremptory rule. In practice, an absolute rule; a rule 
without any condition or alternative of showing cause. 
Ruling made by a trial judge or hearing magistrate ICon 
the spot" and without taking the matter under advise
ment. 
Peremptory undertaking. In English law, an under
taking by a plaintiff to bring on a cause for trial at the 
next sittings or assizes. 
Per eundem /p�r iy�nd�m /. Lat. By the same. This 
phrase is commonly used to express ICby, or from the 
mouth of, the same judg e." So "per eundem in eadem" 
means ICby the same judge in the same case." 
Perfect or perfected. Complete; finished; executed; 
enforceable; without defect; merchantable; marketable. 
Brought to a state of perfection. 
As to perfect Equity; Obligation; Ownership; Title; and 
Usufruct, see those titles. 
Perfect attestation clause. One that asserts perform
ance of all acts required to be done to make valid 
testamentary disposition. 
Perfected. See Perfect or perfected; Perfection of securi
ty interest. 
Perfecting bail. Term describing certain qualifications 
of a property character being required of persons who 
tender themselves as bail, when such persons have justi
fied, i.e., established their sufficiency by satisfying the 
court that they possess the requisite qualifications; a 
rule or order of court is made for their allowance, and 
the bail is then said to be perfected, i.e., the process of 
giving bail is finished or completed. 
Perfect instrument. An instrument such as a deed or 
mortgage is said to become perfect or perfected when 
recorded (or registered) or filed for record, because it 
then becomes good as to all the world. 
Perfection of security interest. In secured transac
tions law, the process whereby a security interest is 
protected, as far as the law permits, against competing 
claims to the collateral, which usually requires the 
secured party to give public notice of the interest as by 
filing in a government office (e.g. in office of Secretary of 
State). Perfection of a security interest deals with those 
steps legally required to give a secured party an interest 
in subject property against debtor's creditors. Bramble 
Transp., Inc. v. Sam Senter Sales, Inc., Del.Super., 294 
A.2d 97, 102. 
The minimum meaning of this term in connection 
with a security interest is that the secured party has 
done whatever is necessary in the way of giving notice 
to make his security interest effective at least against 
lien creditors of the debtor. Depending upon the type of 
Black's Law Dictionary 6th Ed.-25 
PERFORMANCE 
collateral and the method of perfection, it may mean 
more; e.g. it may mean that the interest is good even 
against all purchasers. The methods for attaining per
fection are stated in V.C.C. Sections 9-302 through 
9-306. In most cases the secured party may obtain 
perfection either by filing (i.e. with Secretary of State) or 
by taking possession of the collateral. When the collat
eral is held by a bailee who has not issued a negotiable 
document of title, perfection by notification is possible; 
e.g. the secured party may obtain perfection by notifying 
the bailee of the secured party's interest. For a few 
special situations the Code provides that a security in
terest is perfected without any of the above actions on 
the part of the secured party. Such perfection is called 
automatic perfection, or perfection by attachment. 
Perfect trust. An executed trust (q.v.). 
Perfectum est cui nihil deest secundum sure perfec
tionis vel naturre modum /p�rfekt�m est k(yuw)ay 
nay(h)�l diyest s�k�nd�m s(y)uwiy parfekshiyown�s vel 
n�tyuriy mowd �m /. That is perfect to which nothing is 
wanting, according to the measure of its perfection or 
nature. 
Perfidy /p�rf�diy /. The act of one who has engaged his 
faith to do a thing, and does not do it, but does the 
contrary. Faithlessness, treachery, violation of a prom
ise or vow or a trust reposed. 
Perform. To perform an obligation or contract is to 
execute, fulfill, or accomplish it according to its terms. 
This may consist either in action on the part of the 
person bound by the contract or in omission to act, 
according to the nature of the subject-matter; but the 
term is usually applied to any action in discharge of a 
contract other than payment. See Performance. 
In copyright law, to ICperform" a work means to recite, 
render, play, dance, or act it, either directly or by means 
of any device or process or, in the case of a motion 
picture or other audiovisual work, to show its images in 
any sequence or to make the sounds accompanying it 
audible. Copyright Act, 17 V.S.C.A. § 101. 
Per formam doni /p�r form�m downay/. L. Lat. In 
English law, by the form of the gift; by the designation 
of the giver, and not by the operation of law. 
Performance. The fulfillment or accomplishment of a 
promise, contract, or other obligation according to its 
terms, relieving such person of all further obligation or 
liability thereunder. See also Execute; Execution; Part 
performance; Payment; Substantial performance doctrine. 
Non performance. See Commercial frustration; Default; 
Impossibility. 
Part performance. The doing some portion, yet not the 
whole, of what either party to a contract has agreed to 
do. 
Part performance of an obligation, either before or 
after a breach thereof, when expressly accepted by the 
creditor in writing, in satisfaction, or rendered in pur
suance of an agreement in writing for that purpose, 
though without any new consideration, extinguishes the 
obligation.

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PERFORMANCE 
As regards the sale of goods, the statute of frauds 
requirement is dispensed with by partial performance 
for the goods which have been accepted or for which 
payment has been made and accepted. V.C.C. 
§ 2-201(3). See also Part performance. 
Specific performance. The remedy of requiring exact 
performance of a contract in the specific form in which 
it was made, or according to the precise terms agreed 
upon. The actual accomplishment of a contract by a 
party bound to fulfill it. The doctrine of specific per
formance is that, where money damages would be an 
inadequate compensation for the breach of an agree
ment, the contractor or vendor will be compelled to 
perform specifically what he has agreed to do; e.g. 
ordered to execute a specific conveyance of land. See 
Fed.R. Civil P. 70. 
With respect to sale of goods, specific performance 
may be decreed where the goods are unique or in other 
proper circumstances. The decree for specific perform
ance may include such terms and conditions as to pay
ment of the price, damages, or other relief as the court 
may deem just. V.C.C. §§ 2-711 (2)(b), 2-716. 
As the exact fulfillment of an agreement is not always 
practicable, the phrase may mean, in a given case, not 
literal, but substantial performance . 
Performance bond. Surety bond which guarantees that 
contractor will fully perform contract and guarantees 
against breach of contract. Isaac v. Reliance Ins. Co., 
201 Kan. 288, 440 P.2d 600,. 605. Proceeds of bond are 
used to complete contract or compensate for loss in the 
event of nonperformance. See also Bond; Bid bond; 
Mill er Act. 
Per fraudem /p�r frod:;)m/. Lat. By fraud. In common 
law pleading, where a plea alleges matter of discharge, 
and the replication avers that the discharge was fraudu
lently obtained and is therefore invalid, it is called a 
"replication per fraudem." 
Periculosum existimo quod bonorum virorum non 
comprobatur exemplo /p:;)riky:;)lows:;)m :;)gzist:;)mow 
kwod b:;)nor:;)m v:;)ror:;)m non kompr:;)beyt:;)r :;)gzemplow /. 
I consider that dangerous which is not approved by the 
example of good men. 
Periculosus /p:;)riky:;)lows:;)s/. Lat. Dangerous; peril
ous. 
Periculum /p:;)riky:;)l:;)m/. Lat. In the civil law, peril; 
danger; hazard; risk. 
Peril. The risk, hazard, or contingency insured against 
by a policy of insurance. In general, the cause of any 
loss such as may be caused by fire, hail, etc. See also 
Imminent peril. 
Perils of the lakes. As applied to navigation of the 
Great Lakes, this term has the same meaning as "perils 
of the sea (q.v.)." 
Perils of the sea. In maritime and insurance law, 
natural accidents peculiar to the sea, which do not 
happen by the intervention of man, nor are to be pre
vented by human prudence. Hence to recover on ma-
1138 
rine policy insuring against loss by perils of sea, vessel 
must be seaworthy when it is sent to sea. Perils of the 
sea are from (1) storms and waves; (2) rocks, shoals, and 
rapids; (3) other obstacles, though of human origin; (4) 
changes of climate; (5) the confinement necessary at 
sea; (6) animals peculiar to the sea; (7) all other dangers 
peculiar to the sea. All losses caused by the action of 
wind and water acting on the property insured under 
extraordinary circumstances, either directly or mediate
ly, without the intervention of other independent active 
external causes, are losses by "perils of the sea or other 
perils and dangers," within the meaning of the usual 
clause in a policy of marine insurance. In an enlarged 
sense, all losses which occur from maritime adventure 
may be said to arise from the perils of the sea; but 
underwriters are not bound to this extent. They insure 
against losses from extraordinary occurrences only; 
such as stress of weather, winds and waves, lightning, 
tempests, etc. These are understood to be meant by the 
phrase "the perils of the sea," in a marine policy, and 
not those ordinary perils which every vessel must en
counter. 
Peril of the sea within a marine policy envisions 
extraordinary and unusual perils which vessel may not 
reasonably expect to encounter; circumstances which 
are ordinarily encountered such as predictable winds, 
tides, wave actions and conditions of the water do not 
fall within such classification. Vining v. Security Ins. 
Co. of New Haven, La.App., 252 So.2d 754,757. Vnder 
Carriage of Goods by Sea Act, "perils of the sea" are 
understood to mean those perils which are peculiar to 
sea and which are of extraordinary nature or arise from 
irresistible force or overwhelming power, and which 
cannot be guarded against by ordinary exertions of 
human skill and prudence. New Rotterdam Ins. Co. v. 
S. S. Loppersum, D.C.N.Y., 215 F.Supp. 563, 566, 567. 
Per incuriam /p�r ink(y)uriy:;)m/. Lat. Through inad
vertence. 
Per industriam hominis /p�r ind�striy:;)m hom:;)n:;)s/. 
Lat. In old English law, by human industry. A term 
applied to the reclaiming or taming of wild animals by 
art, industry, and education. 
Per infortunium /p�r infortyuwn(i)y:;)m/. Lat. By mis
adventure. In criminal law, homicide per infortunium 
is committed where a man, doing a lawful act, without 
any intention of hurt, unfortunately kills another. See 
Homicide. 
Period. Any point, space, or division of time. 
Periodic. Recurring at fixed intervals; to be made or 
done, or to happen, at successive periods separated by 
determined intervals of time, as periodic payments of 
interest on a bond, or periodic alimony payments. 
Periodic alimony. A form of support alimony which 
may be modified for changed circumstances of either 
party. An allowance payable by one spouse to the other 
at intermittent times, usually by the week or by the 
month, in a definite amount over a definite or indefinite 
period of time. An award of periodic alimony is appro
priate according to the needs of the spouse requesting

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1139 
alimony and the corresponding ability of the other 
spouse to pay. Cann v. Cann, Fla.App., 334 So.2d 325, 
328. This is also known in some jurisdictions as perma
nent alimony. Maxcy v. Estate of Maxcy, 485 So.2d 
1077, 1078. State statutes which provide for alimony 
payments only from husbands, and not wives, have been 
held unconstitutionaL Orr v. Orr, 99 S.Ct. 1102. See 
also Alimony; Permanent alimony. 
Periodic tenancy. Generic term descriptive of a tenan
cy from week to week, month to month, or year to year. 
Periodic tenancy is one continuing tenancy subject to 
termination at various rental periods rather than a 
series of individual and new tenancies. Rossow Oil Co., 
Inc. v. Heiman, 72 Wis.2d 696, 242 N.W.2d 176, 180. An 
estate that continues for successive periods unless termi
nated at end of a period by notice. State v. Fin & 
Feather Club, Me., 316 A.2d 351, 357. 
Peripheral rights. Those rights which surround or 
spring from other rights. 
Periphrasis. Circumlocution; use of many words to 
express the sense of one. 
Perish. To come to an end; to cease to be; to die. 
Perishable. Subject to speedy and natural decay (e.g. 
fruits, vegetables, dairy products, meat). But, where the 
time contemplated is necessarily long, the term may 
embrace property liable merely to material depreciation 
in value from other causes than such decay. 
Perishable commodity. A relative term used to de
scribe a product, like fruit or fresh vegetables, which 
quickly deteriorates in quality and value. In re Rosen
baum Grain Corporation, C.C.A.Ill., 83 F.2d 391, 393. 
Perishable goods. Goods which quickly decay and lose 
their value if not put to their intended use within a 
short period of time. 
Perjuri sunt qui servatis verbis juramenti decipiunt 
aures eorum qui accipiunt Ip�rjuray s�nt kway 
s�rv�teyt�s v�rb�s jur�mentay d�sipiy�nt 6riyz iy6r�m 
kway �ksipiy�nt/. They are perjured, who, preserving 
the words of an oath, deceive the ears of those who 
receive it. 
Perjury. In criminal law, the willful assertion as to a 
matter of fact, opinion, belief, or knowledge, made by a 
witness in a judicial proceeding as part of his evidence, 
either upon oath or in any form allowed by law to be 
substituted for an oath, whether such evidence is given 
in open court, or in an affidavit, or otherwise, such 
assertion being material to the issue or point of inquiry 
and known to such witness to be false. A false state
ment knowingly made in a proceeding in a court of 
competent jurisdiction or concerning a matter wherein 
an affiant is required by law to be sworn as to some 
matter material to the issue or point in question. Hen
ry v. Deen, 310 N.C. 75, 310 S.E.2d 326, 335. 
A person is guilty of perjury if in any official proceed
ing he makes a false statement under oath or equivalent 
affirmation, or swears or affirms the truth of a state
ment previously made, when the statement is material 
PERMANENT INJURY 
and he does not believe it to be true. Model Penal Code, 
§ 241 .1. See also 18 U.S.C.A. §§ 1621, 1623. 
Subornation of perjury is procuring another to commit 
perjury. See 18 U.S.C.A. § 1622. 
For unsworn declarations under penalty of per jury, 
see 28 U.S.C.A. § 1746. 
See also False swearing; Two witness rule. 
Perks. See Perquisites. 
Per legem terrre Ip�r liyj�m tehriy/. Lat. By the law of 
the land; by due process of law. 
Permanent. Continuing or enduring in the same state, 
status, place, or the like, without fundamental or 
marked change, not subject to fluctuation, or alteration, 
fixed or intended to be fixed; lasting; abiding; stable; 
not temporary or transient. Hiatt v. Department of 
Labor and Industries, 48 Wash.2d 843,297 P.2d 244, 246. 
Generally opposed in law to "temporary," but not al
ways meaning "perpetuaL" 
As to permanent Injunction; Nuisance, and Trespass; 
see those titles. 
Permanent abode. A domicile or fixed home, which the 
party may leave as his interest or whim may dictate, but 
which he has no present intention of abandoning. See 
also Domicile; Residence. 
Permanent alimony. An allowance for the support and 
maintenance of a spouse during his or her lifetime, and 
its purpose is to provide nourishment, sustenance and 
the necessities of life to a former spouse who has neither 
the resources nor ability to be self-sustaining. Cann v. 
Cann, Fla.App., 334 So.2d 325, 329. See also Alimony; 
Periodic alimony. 
Permanent disability. Generally, permanent disability 
is one which will remain substantially the same during 
remainder of workers' compensation claimant's life. 
Subsequent Injuries Fund v. Industrial Acc. Commis
sion, 226 CaLApp.2d 136, 37 CaLRptr. 844, 849. A 
permanent disability is one which causes impairment of 
earning capacity, impairment of normal use of member, 
or competitive handicap in open labor market. State 
Compensation Ins. Fund v. Industrial Acc. Commission, 
59 Ca1.2d 45, 27 Cal.Rptr. 702, 707, 377 P.2d 902. 
Within insurance policies does not mean that disabili
ty must continue throughout life of insured, but it 
connotes idea that disability must be something more 
than temporary, and at least presumably permanent. 
See also Disability; Permanent injury. 
Permanent employment. As provided for by contract, 
means only that employment is to continue indefinitely 
and until either party wishes to sever relation for some 
good reason. Speegle v. Board of Fire Underwriters of 
Pacific, Cal.App., 158 P.2d 426, 429. 
Permanent financing. Long term loan which replaces 
bridge or interim financing; e.g., mortgage loan used to 
repay construction loan. 
Permanent injury. One where situation has stabilized 
and permanent damage is reasonably certain. Haugen 
Trust v. Warner, 204 Mont. 508, 665 P.2d 1132, 1135. 
Physical or mental impairment or disability which will 
last throughout life, or injury reasonably certain to be

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PERMANENT INJURY 
followed by permanent impairment of earning capacity 
or one producing permanent irremediable pain. Driver 
v. Anheuser, Mo.App., 397 S.W.2d 11, 16. See also 
Permanent disability. 
Permanent law. An act which continues in force for an 
indefinite time. 
Per metas et bundas /p.Jr miyt�s et band�s/. L. Lat. In 
old English law, by metes and bounds. 
Per minas /p�r mayn �s/. Lat. By threats. See Duress. 
Per misadventure /p�r mis�dventy�r/. In old English 
law, by mischance. The same with per infortunium 
(q.v.). 
Permission. A license to do a thing; an authority to do 
an act which, without such authority, would have been 
unlawful. An act of permitting, formal consent, autho
rization, leave, license or liberty granted, and it has a 
flexible meaning depending upon the sense in which it is 
used. Winterton v. Van Zandt, Mo., 351 S.W.2d 696, 
700. See also Authority; Certificate; License; Permit. 
Permissions. Negations of law, arising either from the 
law's silence or its express declaration. 
Permissive. Allowed; allowable; that which may be 
done. Lenient; tolerant. 
Permissive counterclaim. Federal Rule of Civil Proce
dure 13(b) grants defendant unqualified right to inter
pose "permissive counterclaim"; one that does not arise 
out of same transaction or occurrence furnishing subject 
matter of plaintiffs claim, and court possesses no discre
tion to reject it. U. S. for Use and Benefit of Kashulines 
v. Thermo Contracting Corp., D.C.N.J., 437 F.Supp. 195, 
198. See also Counterclaim. 
Permissive use. See Use. 
Permissive waste. See Waste. 
Permit, v. To suffer, allow, consent, let; to give leave or 
license; to acquiesce, by failure to prevent, or to express
ly assent or agree to the doing of an act. 
Permit, n. In general, any document which grants a 
person the right to do something. A license or grant of 
authority to do a thing. Matter of Building Permit and 
Zoning, 29 N.C.App. 749, 225 S.E.2d 647, 649. A written 
license or warrant, issued by a person in authority, 
empowering the grantee to do some act not forbidden by 
law, but not allowable without such authority. 
A license or instrument granted by the officers of 
excise (or customs), certifying that the duties on certain 
goods have been paid, or secured, and permitting their 
removal from some specified place to another. 
See also Building permit; Certificate; License; Special 
use permit. 
Permit card. A document given by a union to a non-un
ion member which allows an employer to hire him for a 
job for which the union is unable to supply sufficient 
members. 
Per mitter Ie droit /p�r mit�r l� droyt/. L. Fr. By 
passing the right. One of the modes by which releases 
1140 
at common law were said to inure was "per mitter Ie 
droit," as where a person who had been disseised re
leased to the disseisor or his heir or feoffee. In such 
case, by the release, the right which was in the releasor 
was added to the possession of the releasee, and the two 
combined perfected the estate. 
Per mitter l'estate /p�r mit�r l�steyt/. L. Fr. By 
passing the estate. At common law, if two or more are 
seised, either by deed, devise, or descent, as joint tenants 
or coparceners of the same estate, and one of them 
releases to the other, this is said to inure by way of "per 
mitter I 'estate. " 
Permutatio /p�rmy�teysh(iy)ow/. Lat. In the civil law, 
exchange; barter. 
Permutation /p�rmy�teysh�n/. The exchange of one 
movable subject for another; barter. 
Per my et per tout /p�r miy ey p�r tuw(t)/. L. Fr. By 
the half and by the whole. A phrase descriptive of the 
mode in which joint tenants hold the joint estate, the 
effect of which, technically considered, is that for pur
poses of tenure and survivorship each is the holder of 
the whole, but for purposes of alienation each has only 
his own share, which is presumed in law to be equal. 
Pernancy. Taking; a taking or receiving; as of the 
profits of an estate. Actual pernancy of the profits of an 
estate is the taking, perception, or receipt of the rents 
and other advantages arising therefrom. 
Pernor of profits /parn�r �v pr6f�ts/. He who receives 
the profits of lands, etc.; he who has the actual pernan
cy of the profits. 
Pernour /parn�r/. L. Fr. A taker. Le pernour ou Ie 
detenour, the taker or the detainer. 
Per pais, trial /tray(�)l p�r pey(s)/. Trial by the coun
try; i.e., by jury. 
Perpars /p�rparz/. L. Lat. A purpart; a part of the 
inheritance. 
Perpetration. The act of one committing a crime either 
with his own hands, or by some means or instrument or 
through some innocent agent. 
Perpetrator /parp�treyt�r/. Generally, this term de
notes the person who actually commits a crime or delict, 
or by whose immediate agency it occurs. 
Perpetual /p�rpetyuw�l/. Never ceasing; continuous; 
enduring; lasting; unlimited in respect of time; con
tinuing without intermission or interval. 
As to perpetual Injunction; Lease; and Statute, see 
those titles. 
Perpetual edict. In Roman law, originally the term 
"perpetual" was merely opposed to "occasional" and was 
used to distinguish the general edicts of the prretors 
from the special edicts or orders which they issued in 
their judicial capacity. But under Hadrian the edict 
was revised by the jurist Julianus, and was republished 
as a permanent act of legislation. It was then styled 
"perpetual," in the sense of being calculated to endure

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1141 
in perpetuum, or until abrogated by competent authori
ty. 
Perpetua lex est nullam legem humanam ac positi
vam perpetuam esse, et clausula qure abrogationem 
excludit ab initio non valet /p;)rpetyuw;) leks est 
noll;)m liyj;)m hyuwmeyn;)m rek poz;)tayv;)m p;)rpetyuw;)m 
esiy, et kloz(y);)l;) kwiy rebr;)geyshiyown;)m ;)kskl(y)uwd;)t 
reb ;)nish(iy)ow non vrebt/. It is a perpetual law that no 
human and positive law can be perpetual, and a clause 
[in a law] which precludes the power of abrogation is 
-void ab initio. 
Perpetual succession. That continuous existence 
which enables a corporation to manage its affairs, and 
hold property without the necessity of perpetual convey
ances, for the purpose of transmitting it. By reason of 
this quality, this ideal and artificial person remains, in 
its legal entity and personality, the same, though fre
quent changes may be made of its members. 
Perpetuating testimony. Means or procedure permit
ted by federal and state discovery rules for preserving 
for future use the testimony of witness, which might 
otherwise be lost or unavailable before the trial in which 
it is intended to be used. Fed.R. Civil P. 27(a) (deposi
tions before trial). 
Perpetuities, rule against. See Perpetuity; Rule (Rule 
against perpetuities). 
Perpetuity /p:kp;)tyUw;)diy/. Continuing forever. Le
gally, pertaining to real property, any condition extend
ing the inalienability or property beyond the time of a 
life or lives in being plus twenty one years. A perpetui
ty is a limitation which takes the subject-matter of the 
perpetuity out of commerce for a period greater than a 
life or lives in being and 21 years thereafter, plus 
ordinary period of gestation. Zahn v. National Bank of 
Commerce of Dallas, Tex.Civ.App., 328 S.W.2d 783, 789. 
See also Rule (Rule against perpetuities). 
Perpetuity of the king. That fiction of the English law 
which for certain political purposes ascribes to the king 
in his political capacity the attribute of immortality; 
for, though the reigning monarch may die, yet by this 
fiction the king never dies, i.e., the office is supposed to 
be reoccupied for all political purposes immediately on 
his death. 
Per procuration /p:lr proky;)reysh;)n/. By proxy; by 
one acting as an agent with special powers, as under a 
letter of attorney. These words give notice to all per
sons that the agent is acting under a special and limited 
authority. The phrase is commonly abbreviated to "per 
proc., "o r "p. p., " and is more used in the civil law and in 
England than in American law. A proxy or signature of 
a principal executed by an agent who discloses his role 
as agent on the document. 
Per qure servitia /p:lr kwiy s;)rvish(iy);)/. Lat. In old 
English law, a real action by which the grantee of a 
seigniory could compel the tenants of the grantor to 
attorn to himself. It was abolished by St. 3 & 4 Wm. IV, 
c. 27, § 35. 
PER QUOD SERVITIUM AMISIT 
Perquisites /polrkw;)z;)ts/. Emoluments, privileges, 
fringe benefits, or other incidental profits or benefits 
attaching to an office or employment position in addi
tion to regular salary or wages. Shortened term 
"Perks" is used with reference to such extraordinary 
benefits afforded to business executives (e.g. free cars, 
club memberships, insurance, etc.). See also Fringe ben
efits. 
Perquisitio /p:lrkw;)zish(iy)ow/. Purchase. Acquisition 
by one's own act or agreement, and not by descent. 
Perquisitor /p;)rkwiz;)t;)r/. In old English law, a pur
chaser; one who first acquired an estate to his family; 
one who acquired an estate by sale, by gift, or by any 
other method, except only that of descent. 
Per quod /p:lr kwod/. Lat. Whereby. When the decla
ration in an action of tort, after stating the acts com
plained of, goes on to allege the consequences of those 
acts as a ground of special damage to the plaintiff, the 
recital of such consequences is prefaced by these words, 
"per quod, "w hereby; and sometimes the phrase is used 
as the name of that clause of the declaration or com
plaint. 
At the common law, "per quod" acquired two mean
ings in the law of defamation: when used in the frame 
of reference of slander it meant proof of special damages 
was required and when used in the frame of reference of 
libel it meant that proof of extrinsic circumstances was 
required. General Motors Corp. v. Piskor, 27 Md.App. 
95, 340 A.2d 767, 783. See also Libelous per quod. 
Words "actionable per quod" are those not actionable 
per se upon their face, but are only actionable in conse
quence of extrinsic facts showing circumstances under 
which they were said or the damages resulting to slan
dered party therefrom. 
See also Actionable per quod. 
Per quod consortium amisit /p:lr kwod k;)nsorsh(iy);)m 
;)mayz;)t/. Lat. In old pleading, whereby he lost the 
company [of his wife]. A phrase used in the old declara
tions in actions of trespass by a husband for beating or 
ill using his wife, descriptive of the special damage he 
had sustained. Crocker v. Crocker, C.C.Mass., 98 F. 702, 
703. See Consortium. 
Per quod servitium amisit /p:lr kwod s;)rvish(iy);)m 
;)mayz;)t/. Lat. In old pleading, whereby he lost the 
service [of his servant]. A phrase used in the old decla
rations in actions of trespass by a master, for beating or 
ill using his servant, descriptive of the special damage 
he had himself sustained. This action was commonly 
brought by the father for the seduction of his daughter, 
in which case very slight evidence of the relation of 
master and servant was necessary; but still some loss of 
service, or some expense, had to be shown. 
Per rationes pervenitur ad legitimam rationem /p:lr 
rreshiyowniyz p;)rviyn;)t;)r red l;)jit;)m;)m rre
shiyown;)m/. By reasoning we come to true reason. 
Per rerum naturam factum negantis nulla probatio 
est /p;}r rir;)m n�tyur�m frekt;)m n�grent;)s n;}l;) pr;)-

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PER SALTUM 
beysh(iy)ow est!. It is in the nature of things that he 
who denies a fact is not bound to give proof. 
Per saltum Ip:k s61tam /. Lat. By a leap or bound; by a 
sudden movement; passing over certain proceedings. 
Per sample Ip;k srempal /. By sample. A purchase so 
made is a collateral engagement that the goods shall be 
of a particular qUality. U.C.C. § 2-313(1)(c). 
Per se Ip;}r siy/"sey/. Lat. By itself; in itself; taken 
alone; by means of itself; through itself; inherently; in 
isolation; unconnected with other matters; simply as 
such; in its own nature without reference to its relation. 
In law of defama tion, certain words and phrases that 
are actionable as slander or libel in and of themselves 
without proof of special damages, e.g. accusation of 
crime. Used in contrast to defamation per quod which 
requires proof of special damage. See Actionable per se; 
Libelous per se; Slanderous per se. 
See also Negligence per se; Per se doctrine; Per se 
violations. 
Persecutio Ip;}rsakyuwsh(iy)ow/. Lat. In the civil law, 
a following after; a pursuing at law; a suit or prosecu
tion. Properly that kind of judicial proceeding before 
the prretor which was called "extraordinary." In a 
general sense, any judicial proceeding, including not 
only "actions" (actiones), properly so called, but other 
proceedings also. 
Per se doctrine. Under the "per se doctrine," if an 
activity is blatant in its intent and pernicious in its 
effect, a court need not inquire into the reasonableness 
of the same before determining that it is a violation of 
the antitrust laws. Connecticut Ass'n of Clinical Labor
atories v. Connecticut Blue Cross, Inc., 31 Conn. Sup. 10, 
324 A.2d 288, 291. See Per se violations. 
Persequi Ip:lrsakway/. Lat. In the civil law, to follow 
after; to pursue or claim in form of law. An action is 
called a "jus persequendi. " 
Per se violations. In anti-trust law, term that implies 
that certain types of business agreements, such as price
fixing, are considered inherently anti-competitive and 
injurious to the public without any need to determine if 
the agreement has actually injured market competition. 
See Per se doctrine; Rule (Rule of reason). 
Person. In general usage, a human being (i.e. natural 
person), though by statute term may include labor orga
nizations, partnerships, associations, corporations, legal 
representatives, trustees, trustees in bankruptcy, or re
ceivers. See e.g. National Labor Relations Act, § 2(1), 
29 U.S.C.A. § 152; Uniform Partnership Act, § 2. 
Scope and delineation of term is necessary for deter
mining those to whom Fourteenth Amendment of Con
stitution affords protection since this Amendment ex
pressly applies to "person ." 
Aliens. Aliens are "persons" within meaning of Four
teenth Amendment and are thus protected by equal 
protection clause against discriminatory state action. 
Foley v. Connelie, D.C.N.Y., 419 F.Supp. 889, 891. 
1142 
Bankruptcy Code. "Person" includes individual, part
nership, and corporation, but not governmental unit. 
11 U.S.C.A. § 101. 
Commercial law. An individual or organizat ion. U.C.C. 
§ 1-201(30). 
Corporation. A corporation is a "person" within mean
ing of Fourteenth Amendment equal protection and due 
process provisions of United States Constitution. Metro
politan Life Ins. Co. v. Ward, Ala., 470 U.S. 869, 105 
S.Ct. 1676, 1683, 84 L.Ed.2d 751. The term "persons" in 
statute relating to conspiracy to commit offense against 
United States, or to defraud United States, or any agen
cy, includes corporation. Alamo Fence Co. of Houston v. 
U.S., C.A.Tex., 240 F.2d 179, 181. 
In corporate law, "person" includes individual and 
entity. Rev.Model Bus.Corp.Act, § 1.40. 
Foreign government. Foreign governments otherwise 
eligible to sue in U.S. courts are "persons" entitled to 
bring treble-damage suit for alleged antitrust violations 
under Clayton Act, Section 4. Pfizer, Inc. v. Govern
ment of India, C.A.Minn., 550 F.2d 396. 
Illegitimate child. Illegitimate children are "persons" 
within meaning of the Equal Protection Clause of the 
Fourteenth Amendment, Levy v. Louisiana, 391 U.S. 68, 
88 S.Ct. 1509, 1511, 20 L.Ed.2d 436; and scope of wrong
ful death statute, Jordan v. Delta Drilling Co., Wyo., 541 
P.2d 39, 48. 
Interested person. Includes heirs, devisees, children, 
spouses, creditors, beneficiaries and any others having a 
property right in or claim against a trust estate or the 
estate of a decedent, ward or protected person which 
may be affected by the proceeding. It also includes 
persons having priority for appointment as personal 
representative, and other fiduciaries representing inter
ested persons. The meaning as it relates to particular 
persons may vary from time to time and must be deter
mined according to the particular purposes of, and mat
ter involved in, any proceeding. Uniform Probate Code, 
§ 1-201(20). 
Labor unions. Labor unions are "persons" under the 
Sherman Act and the Clayton Act, Casey v. F.T.C., 
C.A.Wash., 578 F.2d 793, 797, and also under Bankrupt
cy Code, Highway and City Freight Drivers, Dockmen 
and Helpers, Local Union No. 600 v. Gordon Transports, 
Inc., C.A.Mo., 576 F.2d 1285, 1287. 
Minors. Minors are "persons" under the United States 
Constitution, possessed of rights that governments must 
respect. In re Scott K., 24 C.3d 395, 155 Cal.Rptr. 671, 
674, 595 P.2d 105. 
Municipalities. Municipalities and other government 
units are "persons" within meaning of 42 U.S.C.A. 
§ 1983. Local government officials sued in their official 
capacities are "persons" for purposes of Section 1983 in 
those cases in which a local government would be suable 
in its own name. Monell v. N. Y. City Department of 
Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2035, 56 
L.Ed.2d 611. See Color of law.

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1143 
Definition of "person" or "persons" covered by anti
trust laws includes cities, whether as municipal utility 
operators suing as plaintiffs seeking damages for anti
trust violations or as operators being sued as defendants. 
City of Lafayette, La. v. Louisiana Power & Light Co., 
La., 435 U.S. 389, 98 S.Ct. 1123, 1128, 55 L.Ed.2d 364. 
Protected person. One for whom a conservator has been 
appointed or other protective order has been made. 
Uniform Probate Code, § 5-103(18). 
Resident alien. A resident alien is a "person" within 
the meaning of the due process and equal protection 
clauses of the Fourteenth Amendment. C. D. R. Enter
prises, Ltd. v. Board of Ed. of City of New York, D.C. 
N.Y., 412 F.Supp. 1164, 1168. 
Unborn child. Word "person" as used in the Four
teenth Amendment does not include the unborn. Roe v. 
Wade, 410 U.S. 113, 93 S.Ct. 705, 729, 35 L.Ed.2d 147. 
Unborn child is a "person" for purpose of remedies 
given for personal injuries, and child may sue after his 
birth. Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307, 
1309. In some jurisdictions a viable fetus is considered 
a person within the meaning of the state's wrongful 
death statute, e.g. Summerfield v. Superior Court, 144 
Ariz. 467, 698 P.2d 712, and within the meaning of the 
state's vehicular homicide statute, e.g. Comm. v. Cass, 
392 Mass. 799, 467 N.E.2d 1324. See also Child; Children 
(Rights of unborn child); Unborn child ; Viable child. 
University. A state university is a "person", within 
meaning of § 1983. 42 U.S.C.A. § 1983. Uberoi v. 
University of Colorado, Colo., 713 P.2d 894, 900. 
Persona /p�rs6wn�/. Lat. In the civil law, character in 
virtue of which certain rights belong to a man and 
certain duties are imposed upon him. Thus one man 
may unite many characters (personre), as, for example, 
the characters of father and son, of master and servant. 
Personable /p�rs�n�b�l/. Having the rights and powers 
of a person; able to hold or maintain a plea in court; 
also capacity to take anything granted or given. 
Persona conjuncta requiparatur interesse proprio 
/p�rs6wn� k�nj�IJkt� ekw�p:m�yt�r int�resiy pr6w
priyow /. A personal connection [literally, a united per
son, union with a person] is equivalent to one's own 
interest; nearness of blood is as good a consideration as 
one's own interest. 
Persona designata /p�rs6wn� dez�gneyt�/. A person 
pointed out or described as an individual, as opposed to 
a person ascertained as a member of a class, or as filling 
a particular character. 
Persona ecclesire /p�rs6wn� �kliyziyiy/. The parson or 
personation of the church. 
Persona est homo cum statu quodam consideratus 
/p�rs6wn� est h6wmow k�m stretyuw kw6wd�m 
k:msid:m�yt�s/. A person is a man considered with 
reference to a certain status. 
Person aggrieved. To have standing as a "person ag
grieved" under equal employment opportunities provi
sions of Civil Rights Act, or to assert rights under any 
federal regulatory statute, a plain tiff must show (1) that 
PERSONAL EFFECTS 
he has actually suffered an injury, and (2) that the 
interest sought to be protected by the complainant is 
arguably within the zone of interests to be protected or 
regulated by the statute in question. Foust v. Trans
america Corp., D.C.CaL, 391 F.Supp. 312, 314. 
As contemplated by federal rule governing standing to 
object to alleged illegal search and seizure is one who is 
the victim of the search and seizure, as distinguished 
from one who claims prejudice only through the use of 
evidence gathered in a search directed at someone else. 
Cochran v. U.S., C.A.Colo., 389 F.2d 326, 327. 
Test of whether a petitioner is a "person aggrieved" 
and thereby entitled to seek review of an order of 
referee in bankruptcy is whether his property may be 
diminished, his burden increased or his rights detrimen
tally affected by order sought to be reviewed. In re 
Capitano, D.C.La., 315 F.Supp. 105, 107, 108. 
See also Aggrieved party; Standing to sue doctrine. 
Personal. Appertaining to the person; belonging to an 
individual; limited to the person; having the nature or 
partaking of the qualities of human beings, or of mova
ble property. In re Steimes' Estate, 150 Misc. 279, 270 
N.Y.S. 339. 
As to personal Action; Assets; Chattel; Contract; Cov
enant; Credit; Demand; Disability; Franchise; Injury; 
Judgment; Knowledge; Liberty; Notice; Obligation; Prop
erty; Replevin; Representative; Right; Security; Service; 
Servitude; Statute; Tax; Tithes; Tort; and Warranty, see 
those titles. 
Personal belongings. In probate law, term is a broad 
classification and in absence of restriction may include 
most or all of the testator's personal property. Goggans 
v. Simmons, Tex.Civ.App ., 319 S.W.2d 442, 445. See also 
Personal effects. 
Personal defenses. In commercial law, term usually 
refers to defenses that cannot be asserted against a 
holder in due course in enforcing an instrument. Also 
refers to defenses of a principal debtor against a creditor 
that cannot be asserted derivatively by a surety. 
Personal effects. Articles associated with person, as 
property having more or less intimate relad()n to person 
of possessor; "effects" meaning movable or chattel prop
erty of any kind. Usual reference is to such items as 
the following owned by a decedent at the time of death: 
clothing, furniture, jewelry, stamp and coin collections, 
silverware, china, crystal, cooking utensils, books, cars, 
televisions, radios, etc. 
Term "personal effects" when employed in a will 
enjoys no settled technical meaning and, when used in 
its primary sense, without any qualifying words, ordi
narily embraces such tangible property as is worn or 
carried about the person, or tangible property having 
some intimate relation to the person of the testator or 
testatrix; where it is required by the context within 
which the term appears, it may enjoy a broader mean
ing. In re Stengel's Estate, Mo.App., 557 S.W.2d 255, 
260.

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PERSONAL HOLDING COMPANY 
Personal holding company. Type of corporation sub
ject to special Personal Holding Company Tax (I.R.C. 
§ 541 et seq.) on undistributed income so as to preclude 
use of such organization by individuals in high tax 
brackets to avoid taxes. Typically, such corporations 
have a limited number of shareholders and the ma jor 
sources of revenue are from passive income such as 
dividends, interest, annuities, royalties, rent, and the 
like. 
Personal holding company income. Income as defined 
by I.R.C. § 543. Such income includes interest, divi
dends, certain rents and royalties, income from the use 
of corporate property by certain shareholders, income 
from certain personal service contracts, and distribu
tions from estates and trusts. Such income is relevant 
in determining whether a corporation is a personal 
holding company and is therefore subject to the penalty 
tax on personal holding companies. 
Personal holding company tax. Federal tax imposed 
on personal holding companies and designed to force the 
distribution of corporate earnings through the threat of 
a penalty tax on the corporation. I.R.C. § 541. 
Personal injury. See Injury. 
Personal judgment. See Judgment (Personal judgment). 
Personalia personam sequuntur /p�rs:meyl(i)y� p�r-
sown�m s�kw:}nt�r /. Personal things follow the person. 
Personal income. The income which an individual 
earns or receives. See Income. 
Personalis actio /p�rs�neyl�s reksh(iy)ow/. Lat. Civil 
law. A personal action; an action against the person 
(in personam). 
Old English law. A personal action. In this sense, the 
term was borrowed from the civil law by Bracton. The 
English form is used as the designation of one of the 
chief divisions of civil actions. 
Personaliter /p�rs�neyl�t�r/. In old English law, per
sonally; in person. 
Personal jurisdiction. The power of a court over the 
person of a defendant in contrast to the jurisdiction of a 
court over"''''a defendant's property or his interest therein; 
in personam as opposed to in rem jurisdiction. See In 
personam jurisdiction. 
Personal liability. A kind of responsibility for the 
payment or performance of an obligation which exposes 
the personal assets of the responsible person to payment 
of the obligation. See e.g. Surety. 
The liability of the stockholders in corporations, under 
certain statutes, by which they may be held individually 
responsible for the debts of the corporation, either to the 
extent of the par value of their respective holdings of 
stock, or to twice that amount, or without limit, or 
otherwise, as the particular statute directs. This may 
be required by state statute of stockholders of a new 
corporation that is undercapitalized. 
Personal property. See Property. 
1144 
Personal property tax. Tax on such items of personal 
property as household furniture, jewelry, etc. levied by 
local or state governments. 
Personal recognizance. See Release on own recogni
�ance. 
Personalty. Personal property; movable property; 
chattels; property that is not attached to real estate. 
See also Property (Personal property). 
Quasi personalty. Things which are movable in point of 
law, though fixed to things real, either actually, as 
emblements (fructus industriales), fixtures, etc.; or ficti
tiously, as chattels-real, leases for years, etc. 
Persona non grata /p�rsown� non grret�rgreyt�/. Per
son not wanted; an undesirable person. In internation
al law and diplomatic usage, a person not acceptable (for 
reasons peculiar to himself) to the court or government 
to which it is proposed to accredit him in the character 
of an ambassador or minister. 
Persona standi in judicio /p�rsown� strenday in 
juwdish(iy)ow/. Capacity of standing in court or in 
judgment; capacity to be a party to an action; capacity 
or ability to sue. 
Personate /p;}rs�neyt/. To assume the person (charac
ter) of another, without his consent or knowledge, in 
order to deceive others, and, in such feigned character, 
to fraudulently do some act or gain some advantage, to 
the harm or prejudice of the person counterfeited. To 
pass one's self off as another having a certain identity. 
Lane v. U. S., C.C.A.O hio, 17 F.2d 923. See also Imp er
sonation. 
Personero /persownerow /. In Spanish law, an attorney. 
So called because he represents the person of another, 
either in or out of court. 
Person in loco parentis /p;}rs�n in lowkow p�rent�s/. 
In place of parent. One who has assumed status and 
obligations of parent without formal adoption. Work
man v. Workman, Okl., 498 P.2d 1384, 1386. See In loco 
parentis. 
Personne /person /. Fr. A person. This term is appli
cable to men and women, or to either. 
Perspicua vera non sunt probanda /p�rspikyuw� vir� 
non s�nt prowbrend�/. Plain truths need not be proved. 
Per stirpes /p�r st;}rpiyz/. Lat. By roots or stocks; by 
representa tion. This term, derived from the civil law, is 
much used in the law of descents and distribution, and 
denotes that method of dividing an intestate estate 
where a class or group of distributees take the share 
which their deceased would have been entitled to, had 
he or she lived, taking thus by their right of represent
ing such ancestor, and not as so many individuals. It is 
the antithesis of per capita (q.v.). Buxton v. Noble, 146 
Kan. 671, 73 P.2d 43, 47. 
Persuade. To induce one by argument, entreaty, or 
expostUlation into a determination, decision, conclusion, 
belief, or the like; to win over by an appeal to one's 
reason and feelings, as into doing or believing some-

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1145 
thing; to bring oneself or another to belief, certainty or 
conviction; to argue into an opinion or procedure. La 
Page v. U. S., C.C.A.Minn., 146 F.2d 536, 538. 
Persuasion. The act of persuading; the act of influenc
ing the mind by arguments or reasons offered, or by 
anything that moves the mind or passions, or inclines 
the will to a determination. For Fair persuasion, see 
that title. 
Pertain. To belong or relate to, whether by nature, 
appointment, or custom. 
Pertenencia /pertenimsiya /. In Spanish law, the claim 
or right which one has to the property in anything; the 
territory which belongs to any one by way of jurisdiction 
or property; that which is accessory or consequent to a 
principal thing, and goes with the ownership of it. 
Perticata terrre /p:}rd�keyt� tehriy/. The fourth part of 
an acre. 
Pertinent /p�rt�n�nt/. Applicable; relevant. Evidence 
is called "pertinent" when it is directed to the issue or 
matters in dispute, and legitimately tends to prove the 
allegations of the party offering it; otherwise it is called 
"impert inent." A pertinent hypothesis is one which, if 
sustained, would logically influence the issue. Vaughn 
v. State, 136 Tex.Cr.R. 455, 125 S.W.2d 568, 570. See 
Material; Relevant. 
Per totam curiam /p:}r towt�m kyuriy�m /. L. Lat. By 
the whole court. A common phrase in the old law 
reports. 
Per tout et non per my /p:}r tuw(t) ey non p:}r miy/. L. 
Fr. By the whole, and not by the moiety. Where an 
estate in fee is given to a man and his wife, they cannot 
take the estate by moieties, but both are seised of the 
entirety, per tout et non per my. 
Perturbation /p:}rt�rbeysh�n/. In old English ecclesias
tical courts, a "suit for perturbation of seat" is the 
technical name for an action growing out of a distur
bance or infringement of one's right to a pew or seat in a 
church. 
Perturbatrix /p:}rt�rbeytr�ks/. A woman who breaks 
the peace. 
Per universitatem /p:}r yuwn�v:}rs�teyt�m /. Lat. In 
the civil law, by an aggregate or whole; as an entirety. 
The term described the acquisition of an entire estate by 
one act or fact, as distinguished from the acquisition of 
single or detached things. 
Per varios actus legem experientia facit /p:}r veriyows 
rekt�s liyj�m �kspiriyensh(iy)� fres�t/. By various acts 
experience frames the law. 
Per verba de futuro /p:}r v�rb� diy fy�tyurow/. Lat. 
By words of the future [tense]. A phrase applied to 
contracts of marriage. 
Per verba de prresenti /p:}r v�rb� diy pr�zentay/. Lat. 
By words of the present [tense] . A phrase applied to 
contracts of marriage. 
Perverse verdict. A verdict whereby the jury refuses to 
follow the direction of the judge on a point of law. 
PETITION 
Per vivam vocem /p:}r vayv�m vows�m /. Lat. In old 
English law, by the living voice; the same with viva 
voce. 
Per year. In a contract, is equivalent to the word 
"annuall y." See Annual. 
Pesa /piyz�/. A weight of two hundred and fifty-six 
pounds. 
Pessimi exempli /pes�may �gzempla y/. Lat. Of the 
worst example. 
Petens /pet�nz/. Lat. In old English law, a demandant; 
the plaint iff in a real action. 
Peter-pence. An ancient levy or tax of a penny on each 
house throughout England, paid to the Pope. It was 
called "Peter-pence," because collected on the day of St. 
Peter, ad vincula; by the Saxons it was called "Rome
feoh," "Romescot," and "Rome-pennying," because col
lected and sent to Rome; and, lastly, it was called 
"hearth money," because every dwelling-house was lia
ble to it, and every religious house, the abbey of St. 
Albans alone excepted. 
Petit /petiy/p�tiy(t)/. Fr. Small; minor; inconsidera
ble. Used in several compounds, and sometimes written 
"petty." As to petit Jury; Larceny; Sergeanty; and 
Treason, see those titles. 
Petit cape /petiy keyp(iy)/. A judicial writ, issued in the 
old actions for the recovery of land, requiring the sheriff 
to take possession of the estate, where the tenant, after 
having appeared in answer to the summons, made de
fault in a subsequent stage of the proceedings. 
Petite assize /p�tiyt �sayz/petiyO /. Used in contradis
tinction from the grand assize, which was a jury to 
decide on questions of property. Petite assize, a jury to 
decide on questions of possession. 
Petitio /p�tish(iy)ow/. Lat. Civil law. The plaintiffs 
statement of his cause of action in an action in rem. 
Old English law. Petition or demand; the count in a 
real action; the form of words in which a title to land 
was stated by the demandant, and which commenced 
with the word "peto. " 
Petition. A written address, embodying an application 
or prayer from the person or persons preferring it, to 
the power, body, or person to whom it is presented, for 
the exercise of his or their authority in the redress of 
some wrong, or the grant of some favor, privilege, or 
license. A formal written request addressed to some 
governmental authority. The right of the people to 
petition for redress of grievances is guaranteed by the 
First Amendment, U.S. Constitution. 
A written request to a board for action on some 
matter therein laid before it. McKillop v. County Bd. of 
Ed. of Sanborn County, 78 S.D. 587, 105 N.W.2d 671, 
675. For example, a formal paper filed with the N.L. 
R.B. seeking a secret ballot election among a certain 
group of employees (bargaining unit). 
A formal written application to a court requesting 
judicial action on a certain matter. A recital of facts

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PETITION 
which give rise to a cause of action. Matthews v. 
Simmons, Tex.Civ.App ., 589 S.W.2d 156, 159. An appli
cation made to a court ex parte, or where there are no 
parties in opposition, praying for the exercise of the 
judicial powers of the court in relation to some matter 
which is not the subject for a suit or action, or for 
authority to do . some act which requires the sanction of 
the court; as for the appointment of a guardian, for 
leave to sell trust property, etc. Formerly, in equity 
practice the original pleading was denominated a peti
tion or bill. Today, in almost all jurisdictions, whether 
in law or equity, the initial pleading is a complaint. 
Written request to the court for an order after notice. 
Uniform Probate Code, §§ 1-2 01(31), 5-103(15). 
Petition de droit /p�tish;m d� droyt/. L. Fr. In old 
English practice, a petition of right; a form of proceed
ing to obtain restitution from the crown of either real or 
personal property, being of use where the crown is in 
possession of any hereditaments or chattels, and the 
petitioner suggests such a right as controverts the title 
of the crown, grounded on facts disclosed in the petition 
itself. 3 Bl.Comm. 256. 
Petitioner. One who presents a petition to a court, 
officer, or legislative body. The one who starts an 
equity proceeding or the one who takes an appeal from a 
judgment. In legal proceedings commenced by petition, 
the person against whom action or relief is prayed, or 
who opposes the prayer of the petition, is called the 
"respondent." See also Plaintiff. 
Petition in bankruptcy. A document filed in a court of 
bankruptcy, or with the clerk, by a debtor seeking the 
relief provided under the various chapters of the Bank
ruptcy Code. This is the manner in which a bankruptcy 
case is commenced. See Bankruptcy Code, § 301 et seq. 
Petitioning creditor. The creditor at whose instance an 
adjudication of bankruptcy is made against a debtor. 
Petition of right. In old English law, a proceeding in 
chancery by which a subject may recover property in the 
possession of the king. See Petition de droit. 
Petition of rights. A parliamentary declaration of the 
liberties of the people, assented to by King Charles I, in 
1629. It is to be distinguished from the bill of rights, 
(1689), which has passed into a permanent constitutional 
statute. 
Petit jury. See Jury. 
Petit larceny. See Larceny. 
Petitory action /pet�t(�)riy reksh�n/. A droitural ac
tion; that is, one in which the plaintiff seeks to establish 
and enforce, by an appropriate legal proceeding, his 
right of property, or his title, to the subject-matter in 
dispute; as distinguished from a possessory action, where 
the right to the possession is the point in litigation, and 
not the mere right of property. In admiralty, suits to 
try title to property independent of questions concerning 
possession are referred to as "petitory suits," which suits 
must be based on a claim of legal title; the assertion of a 
mere equitable interest is not sufficient. Hunt v. A 
1146 
Cargo of Petroleum Products Laden on Steam Tanker 
Hilda, D.C.Pa., 378 F.Supp. 701, 703. 
In Louisiana, an action brought by an alleged owner 
out of possession against one having possession to deter
mine ownership, in which plaintiff must recover on 
strength of his own title, not on weakness of defendant's 
title. Saucier v. Crichton, C.C.A.La., 147 F.2d 430, 433. 
Petronian law. See Lex Petronia. 
Pettifogger /pet�fog�r/. A lawyer who is employed in a 
small or mean business, or who carries on a disreputable 
business by unprincipled or dishonorable means. 
Petty. Small, minor, of less or inconsiderable impor
tance. The English form of "petit, " and sometimes used 
instead of that word in such compounds as "petty jury," 
"petty larceny," and "petty treason." 
See Misdemeanor; Petit. As to petty Average; Con
stable; Jury; Larceny; and Session, see those titles. 
Petty cash. Currency maintained for expenditures that 
are conveniently made with cash on hand. A fund used 
by business to pay small expenses for such items as 
travel, stationery, etc. Sometimes called imprest fund, 
it is operated by a voucher system in which the person 
desiring the money submits a voucher properly autho
rized and receives the cash. 
Petty larceny. See Larceny. 
Petty offense. A minor crime, the maximum punish
ment for which is generally a fine or short term in jail 
or house of correction. In some states, it is a classifica
tion in addition to misdemeanor and felony. See e.g. 18 
U.S.C.A. § 19. 
A six month sentence is the constitutional dividing 
line between serious offenses for which a trial by jury 
must be afforded and petty offenses. In contempt cases, 
it is the sentence actually imposed, rather than the 
penalty authorized by law which is determinative. Co
dispoti v. Pennsylvania, 418 U.S. 506, 519, 94 S.Ct. 2687, 
2694, 41 L.Ed.2d 912. 
See also Infraction; Misdemeanor. 
Petty officers. Inferior officers in the naval service, of 
various ranks and kinds, corresponding to the non-com
missioned officers in the army. U. S. v. Fuller, 160 U.S. 
593, 16 S.Ct. 386, 40 L.Ed. 549. 
Peyote. A type of cactus called mescal, found in Mexico 
and southwestern U.S. It contains button-like tubercles 
that are dried and chewed as an hallucinatory drug. 
Mescaline is an alkaloid of it. 
Phantom stock plan. An employee benefit plan in 
which benefits are determined by reference to the per
formance of the corporation's common shares. A de
ferred compensation unit plan for corporate executives 
and employees which credits to the unit account of the 
employee so-called excess market appreciation measured 
by the difference between the market value of the corpo
rate stock at the time of termination of employment and 
the market value when the employee entered into the 
plan. Lieberman v. Becker, 38 Del.Ch. 540, '155 A.2d 
596.

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1147 
P.B.V. An abbreviation for "pro hac vice, " for this turn, 
for this purpose or occasion. 
Phylasist. A jailer. 
Physical. Relating or pertaining to the body, as distin
guished from the mind or soul or the emotions. Materi
al, substantive, having an objective existence, as distin
guished from imaginary or fictitious; real, having rela
tion to facts, as distinguished from moral or construc
tive. 
Physical cruelty. As used in divorce law means actual 
personal violence, or such a course of physical treatment 
as endangers life, limb or health, and renders cohab
itation unsafe. Gibson v. Gibson, 283 S.C. 318, 322 
S.E.2d 680, 682. 
Physical depreciation. Reduction in value of structure 
due to actual wear and tear or physical deterioration. 
People ex reI. Union Bag & Paper Corporation v. Fitz
gerald, 166 Misc. 237, 2 N.Y.S.2d 290, 295. See Depreci
ation. 
Physical disability. See Disability. 
Physical fact. In the law of evidence, a fact having a 
physical existence, as distinguished from a mere concep
tion of the mind; one which is visible, audible, or palpa
ble, such as the sound of a pistol shot, a man running, 
impressions of human feet on the ground. See Demons
trative evidence. 
Physical fact rule. In evidence, a judge is required to 
take case from jury if plaintiff's evidence as to physical 
facts leads to an impossibility in the light of undisputed 
physical laws. An appellate court is not bound by 
findings which violate physical laws. Zollman v. Sym
ington Wayne Corp., 438 F.2d 28, 31. 
The physical fact rule is that if a driver does not see 
that which he could or should have seen, he is guilty of 
negligence as a matter of law. Pennsylvania Nat. Mut. 
Cas. Ins. Co. v. Dennis, 195 Kan. 594, 408 P.2d 575, 579. 
Physical force. Force applied to the body; actual vio
lence. 
Physical harm. The words "physical harm" are used 
throughout the Restatement of Torts to denote the phys
ical impairment of the human body, or of land or chat
tels. Restatement, Second, Torts, § 7. See also Physical 
injury. 
Physical impossibility. Practical impossibility accord
ing to the knowledge of the day. State v. Hillis, 79 
Ind.App. 599, 124 N.E. 515, 516. See Imp ossibil ity. 
Physical incapacity. In the law of marriage and di
vorce, impotence, inability to accomplish sexual coition, 
arising from physical imperfection or malf ormation. 
Physical injury. Bodily harm or hurt, excluding mental 
distress, fright, or emotional disturbance. See also Phys
ical harm. 
Physical necessity. A condition in which a person is 
absolutely compelled to act in a particular way by over
whelming superior force; as distinguished from moral 
necessity, which arises where there is a duty incumbent 
PIERCING THE CORPORATE VEIL 
upon a rational being to perform, which he ought at the 
time to perform. See Necessity. 
Physician. A practitioner of medicine; a person duly 
authorized or licensed to treat diseases; one lawfully 
engaged in the practice of medicine. 
Physician-patient privilege. See Patient-physician privi
lege. 
Physiotherapy /fiziyowgehr:;,piy/. Treatment of disease 
by physical remedies rather than drugs. Physical thera
py. 
Piacle /pay:;,k:;,l/. An obsolete term for a serious crime. 
Pia fraus /pay:;, fros/. Lat. A pious fraud; a subterfuge 
or evasion considered morally justifiable on account of 
the ends sought to be promoted. Particularly applied to 
an evasion or disregard of the laws in the interests of 
religion or religious institutions, such as circumventing 
the statutes of mortmain. 
Picaroon /pik:;,ruwn/. A robber; a plunderer. 
Picketing. Term refers to presence at an employer's 
business by one or more employees and/or other persons 
to publicize labor dispute, influence employees or cus
tomers to withhold their work or business, respectively, 
or show union's desire to represent employees; picketing 
is usually accompanied by patrolling with signs. C. 
Comella, Inc. v. United Farm Workers Organizing Com
mittee, 33 Ohio App.2d 61, 292 N.E.2d 647, 655, 62 
O.O.2d 128. Patrolling the entrance of a business by 
members of a labor union in order to inform other 
employees and the public of the existence of a strike and 
to influence or deter them from entering. See also 
Labor picketing; Secondary picketing; Un lawful picketing. 
Compare Boycott. 
Peaceable picketing, in which laboring men and women 
have right to participate during labor dispute, means 
tranquil conduct, conduct devoid of noise or tumult, the 
absence of a quarrelsome demeanor, and a course of 
conduct that does not violate or disturb the public peace. 
Ex parte Bell, 37 CaI.App.2d 582, 100 P.2d 339, 340. It 
connotes peaceable methods of presenting a cause to the 
public in the vicinity of the employer's premises. Music 
Hall Theatre v. Moving Picture Mach. Operators Local 
No. 165, 249 Ky. 639, 61 S.W.2d 283. 
Pick of land. A narrow slip of land running into a 
corner. 
Pickpocket. A thief who secretly steals money or other 
property from the person of another. 
Piecework. Work done or paid for by the piece or 
quantity. Calascibett v. Highway Freight Co., 18 N.J. 
Misc. 144, 11 A.2d 408, 409. 
Piepoudre. See Court of Piepoudre. 
Pierage /pir:;,j/. The duty for maintaining piers and 
harbors. 
Piercing the corporate veil. Judicial process whereby 
court will disregard usual immunity of corporate officers 
or entities from liability for wrongful corporate activi
ties; e.g. when incorporation exists for sole purpose of

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PIERCING THE CORPORATE VEIL 
perpetrating fraud. The doctrine which holds that the 
corporate structure with its attendant limited liability of 
stockholders may be disregarded and personal liability 
imposed on stockholders, officers and directors in the 
case of fraud or other wrongful acts done in name of 
corporation. The court, however, may look beyond the 
corporate form only for the defeat of fraud or wrong or 
the remedying of in justice. Hanson v. Bradley, 298 
Mass. 371, 381, 10 N.E.2d 259, 264. See also In strumen
tality rule. 
Pignoratio Ipign;}reysh(iy)ow/. Lat. In the civil law, 
the contract of pledge; and also the obligation of such 
contract. Sealing up (obsignatio). A shutting up of an 
animal caught in one's field and keeping it till the 
expenses and damage have been paid by its master. 
Pignoratitia actio I pign;}r;}tish(iy);} reksh(iy )ow I. Lat. 
In the civil law, an action of pledge, or founded on a 
pledge, which was either directa, for the debtor, after 
payment of the debt, or contraria, for the creditor. 
Pignorative contract Ipign;}reyt;}v kontrrekt/. In the 
civil law, a contract of pledge, hypothecation, or mort
gage of realty. In such contract the nominal vendor 
continues to be the owner and the nominal purchaser 
has only a pledge or mortgage for his debt which he 
must enforce in the usual way. Jackson v. Golson, 
La.App., 91 So.2d 394, 399. 
Pignoris capio Ipignor;}s krepiyow/. Lat. In Roman 
law, this was the name of one of the legis actiones. It 
was employed only in certain particular kinds of pecuni
ary cases, and consisted in that the creditor, without 
preliminary suit and without the co-operation of the 
magistrate, by reciting a prescribed formula, took an 
article of property from the debtor to be treated as a 
pledge or security. The proceeding bears a marked 
analogy to distress at common law. 
Pignus Ipign;}s/. Lat. In the civil law, a pledge or 
pawn; a delivery of a thing to a creditor, as security for 
a debt. Also a thing delivered to a creditor as security 
for a debt. 
Pilfer Ipilf;}r/. To pilfer, in the plain and popular sense, 
means to steaL See Larceny; Theft. 
Pilferage Ipilf(;})r;}j/. Petty larceny; stealing of small 
items, generally of stored goods. 
Pilferer Ipilf;}r;}r/. One who steals petty things, or a 
small part of a thing. 
Pillage Ipib j/. Plunder; the forcible taking of private 
property by an invading or conquering army from the 
enemy's subjects. 
Pillory I pibriy I. A frame erected on a pillar, and made 
with holes and movable boards, through which the 
heads and hands of criminals were put. 
Pimp. One who obtains customers ("tricks") for a whore 
or prostitute. See also Pander. 
Pin-money. A small allowance set apart by a husband 
for the personal expenses of his wife; for her dress and 
pocket money. 
1148 
Pint. A liquid measure of half a quart, or the eighth 
part of a gallon . 
Pioneer patent. See Patent. 
Pious uses Ipay;}s yuws;}z/. See Charitable use. 
Piracy. Those acts of robbery and depredation upon the 
high seas which, if committed on land, would have 
amounted to a felony. Brigandage committed on the sea 
or from the sea. Whoever, on the high seas, commits 
the crime of piracy as defined by the law of nations, and 
is afterwards brought into or found in the V nited States, 
shall be imprisoned for life. 18 V.S.C.A. § 1651. See 
also Air piracy. 
The term is also applied to the illegal reprinting or 
reproduction of copyright� matter or to unlawful plagi
arism from it; and, similarly, to the unlawful reproduc
tion or distribution of property protected by patent and 
trademark laws. See also Infringement; Plagiarism. 
Pirata est hostis humani generis Ip;}reyt;} est host;}s 
hyuwmeynay jen;}r;}s/. A pirate is an enemy of the 
human race. 
Pirate. One guilty of the crime of piracy. 
Piscary Ipisk;}riy/. The right of fishing. Thus, common 
of piscary is the right of fishing in waters belonging to 
another person. 
Pistol. A short firearm, intended to be aimed and fired 
from one hand. Campbell v. Commonwealth, 295 Ky. 
511, 174 S.W.2d 778, 779. 
PITI. Principal, interest, taxes and insurance; the most 
common components of monthly mortgage payments. 
P.J. An abbreviation for "presiding judge" (or justice). 
PKP A. See Parental Kidnapping Prevention Act. 
P.L. An abbreviation for "Pamphlet Laws" or "Public 
Laws." 
Placard. An edict; a declaration; a manifesto. Also an 
advertisement or public notification. 
Place. An old form of the word "pleas." Thus the 
"Court of Common Pleas" was sometimes called the 
"Court of Common Place." 
Place, n. This word is a very indefinite term. It is 
applied to any locality, limited by boundaries, however 
large or however small. It may be used to designate a 
country, state, county, town, or a very small portion of a 
town. The extent of the locality designated by it must 
generally be determined by the connection in which it is 
used. In its primary and most general sense means 
locality, situation, or site, and it is also used to designate 
an occupied situation or building. See also Site; Situs. 
Place, v. To arrange for something as to place a mort
gage or to place an order. See also Placement. 
Place lands. Lands granted which were within certain 
limits on each side of the road, and which became 
instantly fixed by the adoption of the line of the road. 
There is a well-defined difference between place lands 
and cCindemnity lands." See Indemnity.

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1149 
Placement. The act of selling a new issue of securities 
or arranging a loan or mortgage. The act of . finding 
employment for a person as in the case of an employ
ment agency. See also Finder; Offering. 
Place of abode. One's residence or domicile (q.v.). 
Place of business. The location at which one carries on 
his business or employment. Under many state stat
utes, service of process may be made at one's place of 
business and jurisdiction may be acquired by a court 
whose territorial district includes one's place of busi
ness. See also Domicile. 
Place of contract. The place (country or state) in which 
a contract is made, and whose law must determine 
questions affecting the execution, validity, and construc
tion of the contract. Scudder v. Union Nat. Bank, 91 
U.S. 406, 412, 23 L.Ed. 245. 
Place of delivery. The place where delivery is to be 
made of goods sold. If no place is specified in the 
contract, the articles sold must, in general, be delivered 
at the place where they are at the time of the sale. 
Hatch v. Standard Oil Co., 100 U.S. 124, 25 L.Ed. 554. 
See U.C.C. §§ 2-503, 2-504. 
Place of employment. Within the safe place statutes, a 
place where active work, either temporary or perma
nent, is being conducted in connection with a business 
for profit; that is, where some process or operation 
related to such industry, trade or business is carried on 
and where any person is directly or indirectly employed 
by another. 
Placer IplE�ysar/. In mining law, a superficial deposit of 
sand, gravel, or disintegrated rock, carrying one or more 
of the precious metals, along the course or under the bed 
of a watercourse, ancient or current, or along the shore 
of the sea. Under the acts of congress, the term in
cludes all forms of mineral deposits, except veins of 
quartz or other rock in place. 30 U.S.c.A. § 35. 
Placer claim. A mining claim located on the public 
domain for the purpose of placer mining, that is, ground 
within the defined boundaries which contains mineral in 
its earth, sand, or gravel; ground which includes valu
able deposits not "in place," that is, not fixed in rock, or 
which are in a loose state. U. S. v. Iron Silver Min. Co., 
128 U.S. 673, 9 S.Ct. 195, 32 L.Ed. 571; Clipper Min. Co. 
v. Eli Min. Co., 194 U.S. 220, 24 S.Ct. 632, 48 L.Ed. 944. 
Placer location. A placer claim located and occupied on 
the public domain. 
Place where. A phrase used in the older reports, being 
a literal translation of locus in quo (q.v.). 
Placit Iplresat/, or placitum Iplresat(am)/. Decree; de
termination. 
Placita Iplresata/. See Placitum. 
Placitabile I plresateybaliy I. In old English law, pleada
ble. 
Placita communia Iplresata kamyliwn(i)ya/. Common 
pleas. All civil actions between subject and subject. 
PLACITUM 
Placita coronce Iplresata karowniy/. Pleas of the crown. 
All trials for crimes and misdemeanors, wherein the 
king is plainti ff, on behalf of the people. 
Placita de transgressione contra pacem regis, in reg
no Anglice vi et armis facta, secundum legem et 
consuetudinem Anglice sine brevi regis placitari non 
debent Iplresata diy trrenzgreshiyowniy kontra peysam 
riyjas, in regnow reIJgliyiy vay et armas frekta, sak�ndam 
liyjam et konswat(y)uwdanam reIJgliyiy sayniy briyvay 
riyjas plresateray non debant/. Pleas of trespass against 
the peace of the king in the kingdom of England, made 
with force and arms, ought not, by the law and custom 
of England, to be pleaded without the king's writ. 
Placita juris Iplresab jurasl. Pleas or rules of law; 
particular and positive learnings of laws; grounds and 
positive learnings received with the law and set down; 
as distinguished from maxims or the formulated conclu
sions of legal reason. 
Placita negativa duo exitum non faciunt Iplresata 
negatayva d(y)uwow egzatam non fresh(iy)ant/. Two neg
ative pleas do not form an issue. 
Placitare I plresateriy I. To plead. 
Placitory Iplresat(o)riy/. Relating to pleas or pleading. 
Placitum Iplresatam /. In civil law, an agreement of 
parties; that which is their pleasure to arrange between 
them. 
An imperial ordinance or constitution; literally, the 
prince's pleasure. 
A judicial decision; the judgment, decree, or sentence 
of a court. 
In old English law, a public assembly at which the 
king presided, and which comprised men of all degrees, 
met for consultation about the great affairs of the king
dom. 
A court; a judicial tribunal; a lord's court. Placita 
was the style or title of the courts at the beginning of 
the old nisi prius record. 
A suit or cause in court; a judicial proceeding; a trial. 
Placita were divided into placita coronre (crown cases or 
pleas of the crown, i.e., criminal actions) and placita, 
communia (common cases or common pleas, i.e., private 
civil actions). 
A fine, mulct, or pecuniary punishment. 
A pleading or plea. In this sense, the t� m was not 
confined to the defendant's answer to the d� laration, 
but included all the pleadings in the cause, being nomen 
generalissimum. 
In the old reports and abridgments, "placitum " was 
the name of a paragraph or subdivision of a title or page 
where the point decided in a cause was set out separate
ly. It is commonly abbreviated "pI." 
Placitum aliud personale, aliud reale, aliud mixtum 
Iplresatam reliyad p;)rsaneyliy, reliyad riyeyliy, reliyad 
mikstam /. Pleas [i.e., actions] are personal, real, and 
mixed.

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PLACITUM FRACTUM 
Placitum fractum Iplres;:)t;:)m frrekt;:)m/. A day past or 
lost to the defendant. 
Placitum nominatum Iplres;:)t;:)m nom;:)neyt;:)m/. The 
day appointed for a criminal to appear and plead and 
make his defense. 
Plagiarism Ipleyj;:)riz;:)m/. The act of appropriating the 
literary composition of another, or parts or passages of 
his writings, or the ideas or language of the same, and 
passing them off as the product of one's own mind. If 
the material is protected by copyright, such act may 
constitute an offense of copyright infringement. 
To be liable for plagiarism it is not necessary to 
exactly duplicate another's literary work, it being suffi
cient if unfair use of such work is made by lifting of 
substantial portion thereof, but even an exact counter
part of another's work does not constitute plagiarism if 
such counterpart was arrived at independently. 
O'Rourke v. RKO Radio Pictures, D.C.Mass., 44 F.Supp. 
480, 482, 483. 
See also Copyright; Fair use doctrine; Infringement. 
Plagiarist Ipleyj;:)r;:)stl, or plagiary Ipleyjiyehriy/. One 
who publishes the thoughts and writings of another as 
his own. 
Plagiarius Ipleyjiyeriy;:)s/. Lat. In the civil law, a 
kidnapper. 
Plagium Ipleyj(iy);:)m/. Lat. In the civil law, kidnap
ping. The offense of enticing away and stealing men, 
children, and slaves. The persuading a slave to escape 
from his master, or the concealing or harboring him 
without the knowledge of his master. 
Plaideur Ipleyd�r/. Fr. An obsolete term for an attor
ney who pleaded the cause of his client; an advocate. 
Plain error rule. This rule that plain errors affecting 
substantial rights may be considered on motion for new 
trial or on appeal though not raised in trial court if 
manifest injustice or miscarriage of justice has resulted, 
is invoked on case to case basis, but there must be 
sound, substantial manifesta tion, a strong, clear show
ing, that injustice or miscarriage of justice will result if 
the rule is not invoked. State v. Meiers, Mo., 412 
S.W.2d 478, 480. For there to be «plain error" warrant
ing reversal absent objection, there must be legal impro
priety affecting defendant's substantial rights, suffi
ciently grievous to justify notice by reviewing court and 
to convince it that, of itself, error possessed clear capaci
ty to bring about unjust result. State v. Harris, A.D., 
174 A.2d 645, 646, 70 N.J.Super. 9. Doctrine which 
encompasses those errors which are obvious and highly 
prejudicial, which affect the substantial rights of the 
accused, and which, if uncorrected, would be an affront 
to the integrity and reputation of judicial proceedings. 
U. S. v. McCord, 166 U.S.App.D.C. 1, 501 F.2d 334, 341. 
Plain sight rule. See Plain view doctrine. 
Plaint Ipleynt /. In civil law, a complaint; a form of 
action, particularly one for setting aside a testament 
alleged to be invalid. This word is the English equiva
lent of the Latin "querela. " 
1150 
In English practice, a private memorial tendered in 
open court to the judge, wherein the party injured sets 
forth his cause of action. A proceeding in inferior 
courts by which an action is commenced without origi
nal writ. This mode of proceeding is commonly adopted 
in cases of replevin. 
Plaintiff., A person who brings an action; the party who 
complains or sues in a civil action and is so named on 
the record. A person who seeks remedial relief for an 
injury to rights; it designates a complainant. City of 
Vancouver v. Jarvis, 76 Wash.2d 110, 455 P.2d 591, 593. 
The prosecution (i. e. State or United States) in a crimi
nal case. 
Plaintiff in error. In current nomenclature, «appellant" 
is the accepted word to indicate the party who seeks 
appellate review, and not plaintiff in error, as formerly. 
Plain view doctrine. In search and seizure context, 
objects falling in plain view of officer who has the right 
to be in position to have that view are subject to seizure 
without a warrant and may be introduced in evidence. 
Harris v. U. S., 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 
L.Ed.2d 1069. Under «plain view doctrine," warrantless 
seizure of incriminating evidence may be permitted 
when police are lawfully searching specified area if it 
can be established that police had prior justification for 
intrusion into area searched, that police inadvertently 
came across item seized, and that it was immediately 
apparent to the police that the item seized was evidence. 
Washington v. Chrisman, 455 U.S. 1, 5, 102 S.Ct. 812, 
816, 70 L.Ed.2d 778. However, the plain view doctrine 
may not be used to extend a general exploratory search 
from one object to another until something incrimina
ting at last emerges. Coolidge v. New Hampshire, 403 
U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564. 
Plan. A delineation; a design; a draft, form or represen
tation. The representation of anything drawn on a 
plane, as a map or chart; a scheme; a sketch. Also, a 
method of design or action, procedure, or arrangement 
for accomplishment of a particular act or object. Shain
wald v. City of Portland, 153 Or. 167, 55 P.2d 1151, 1156. 
Method of putting into effect an intention or proposal. 
Planned unit development (PUD). An area with a 
specified minimum contiguous acreage to be developed 
as a single entity according to a plan, containing one or 
more residential clusters or planned unit residential 
developments and one or more public, quasi-public, com
mercial or industrial areas in such ranges of ratios of 
nonresidential uses to residential uses as shall be speci
fied in the zoning ordinance. 
Area of land controlled by landowner to be developed 
as a single entity for a number of dwelling units, and 
commercial and industrial uses, if any, the plan for 
which does not correspond in lot size, bulk or type of 
dwelling or commercial or industrial use, density, lot 
coverage and required open space to the regulations 
established in any one or more districts, created from 
time to time, under the provisions of a municipal zoning 
ordinance enacted pursuant to the conventional zoning 
enabling act of the state.

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1151 
Planning. In municipal law, term connotes systematic 
development of municipality to promote general welfare 
and prosperity of its people with greatest efficiency and 
economy, while zoning is concerned primarily with use 
of property. Forest Const. Co. v. Planning and Zoning 
Commission of Town of Bethany, 155 Conn. 169, 236 
A.2d 917, 922. 
Planning board or commission. The agency of a local 
government which recommends approval or disapproval 
of proposed building projects, real estate developments, 
and the like, in their jurisdiction. A higher authority 
such as the city council usually makes the final decision 
based on the recommendation of such board or commis
sion. 
Plantation. In English law, a colony; an original settle
ment in a new country. 
In American law, a farm; a large cultivated estate. 
Term used chiefly in the southern states to refer to large 
farms on which cotton, tobacco, sugar, and like crops are 
grown. 
Plat or plot. A map of a specific land area such as a 
town, section, or subdivision showing the location and 
boundaries of individual parcels of land subdivided into 
lots, with streets, alleys, easements, etc., usually drawn 
to a scale. See also Plat map. 
Platform. A statement of principles and of policies 
adopted by a party convention as a basis for the party's 
appeal for public support. 
Plat map. A plat which gives legal descriptions of pieces 
of property by lot, street, and block numbers. A plat 
map is generally drawn after the property has been 
described by some other means, such as a Government 
Survey System. Once a plat map is set, legal descrip
tions are defined by referring to the given map, in a lot 
and block description. 
Play-debt. Debt contracted by gaming. 
Plea. In common law pleading (now obsolete with adop
tion of Rules of Civil Procedure) a pleading; any one in 
the series of pleadings. More particularly, the first 
pleading on the part of the defendant. In the strictest 
sense, the answer which the defendant in an action at 
law made to the plaintiffs declaration, and in which he 
set up matter of fact as defense, thus distinguished from 
a demurrer, which interposed objections on grounds of 
law. 
In equity pleading (now obsolete with adoption of 
Rules of Civil Procedure) a special answer showing or 
relying upon one or more things as a cause why the suit 
should be either dismissed or delayed or barred. A 
short statement, in response to a bill in equity, of facts 
which, if inserted in the bill, would render it demurra
ble. 
Affirmative plea. In equity pleading, one which sets up 
a single fact, not appearing in the bill, or sets up a 
number of circumstances all tending to establish a sin
gle fact, which fact, if existing, destroys the complain
ant's case. Such is obsolete under Rules of Civil Proce
dure. See Affirmative defense. 
PLEA 
Anomalous plea. One which is partly affirmative and 
partly negative. Obsolete under Rules of Civil Proce
dure. 
Common pleas. In common law pleading, common 
causes or suits; civil actions brought and prosecuted 
between subjects or citizens, as distinguished from crimi
nal cases. Such are obsolete under Rules of Civil Proce
dure. 
Criminal pleas. The defendant's response to a criminal 
charge (guilty, not guilty, or nolo contendere). If a 
defendant refuses to plead or if a defendant corporation 
fails to appear, the court shall enter a plea of not guilty. 
Fed.R.Crim.P. 11 (a). See also Alford plea; Arraignment; 
Guilty plea; Insanity; Nolo contendere; Not guilty; Plea 
bargaining; Standing mute. 
Dilatory pleas. See Dilatory. 
Double plea. In common law pleading, one having the 
technical fault of duplicity; one consisting of several 
distinct and independent matters alleged to the same 
point and requiring different answers. This does not 
present any problem under Rules of Civil Procedure 
which permits party to plead as many separate claims or 
defenses, regardless of consistency. Fed.R.Civil P. 
8(e)(2). 
False plea. A sham plea (q.v. infra). 
Insanity plea. See Insani ty. 
Negative plea. In equity pleading, one which does not 
undertake to answer the various allegations of the bill, 
but specifically denies some particular fact or matter 
the existence of which is essential to entitle the com
plainant to any relief. Abolished under Rules of Civil 
Procedure. See Denial. 
Peremptory pleas. In common law pleading, "pleas in 
bar" are so termed in contradistinction to that class of 
pleas called "dilatory pleas." The former, viz., peremp
tory pleas, are usually pleaded to the merits of the 
action, with the view of raising a material issue between 
the parties; while the latter class, viz., dilatory pleas, 
are generally pleaded with a view of retarding the 
plaintiffs proceedings, and not for the purpose of raising 
an issue upon which the parties may go to trial and 
settle the point in dispute. Peremptory pleas are also 
called "pleas in bar," while dilatory pleas are said to be 
in abatement only. Abolished under Rules of Civil 
Procedure. 
Plea agreements. See Plea bargaining. 
Plea in abatement. In common law pleading, a plea 
which, without disputing merits of plaintiffs claim, ob
jects to place, mode, or time of asserting it. It allows 
plaintiff to renew suit in another place or form, or at 
another time, and does not assume to answer action on 
its merits, or deny existence of particular cause of action 
on which plaintiff relies. A plea in abatement sets forth 
facts extrinsic to merits which affect only manner in 
which action is framed or circumstances under which it 
is sought to be prosecuted, and does not destroy the 
right of action but merely suspends or postpones its

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PLEA 
prosecution. U. S. v. Brodson, C.A.Wi s.,· ·234 F.2d 97, 99. 
In states which have adopted rules patterned on the 
Federal Rules of Civil Procedure, the plea in abatement 
has been replaced by a motion. See, e.g., Fed.R.Civ.P. 
12(b). See Abatement of action. 
Plea in bar. A plea which goes to bar the plaintiffs 
action; that is, to defeat it absolutely and entirely. A 
plea in bar sets forth matters which per se destroy right 
of action and bar its prosecution absolutely, such as bar 
of statute of limitations or constitutional guarantee 
against self-incrimination. U. S. v. Brodson, C.A.Wis., 
234 F.2d 97, 99. A plea in bar is one that denies a 
plaintiffs right to maintain the action and which, if 
established, will destroy the action. Gillikin v. Gillikin, 
248 N.C. 710, 104 S.E.2d 861, 862. 
Plea in discharge. In common law pleading, one which 
admits that the plaintiff had a cause of action, but 
shows that it was discharged by some subsequent or 
collateral matter, as, payment or accord and satisfac
tion. Abolished under Rules of Civil Procedure. See 
Affirmative defense. 
Plea in reconvention. In the civil law, a plea which sets 
up new matter, not in defense to the action, but by way 
of cross-complaint, set-off, or counterclaim. 
Plea of confession and avoidance. In common law plead
ing, one which admits that plaintiff had a cause of 
action, but which avers that it has been discharged by 
some subsequent or collateral matter. Abolished under 
Rules of Civil Procedure. See Affirmative defense. 
Plea of guilty. A confession of guilt in open court. See 
also Criminal pleas, above, and Guil ty plea. 
flea of nolo contendere /pliy �v nowlow k�nt(md�riy/. 
See Nolo contendere. 
Plea of release. In common law pleading, one which 
admits the cause of action, but sets forth a release 
subsequently executed by the party authorized to release 
the claim. Abolished by Rules of Civil Procedure. See 
Affirmative defense. 
Sham plea. A false plea; a plea of false or fictitious 
matter, subtly drawn so as to entrap an opponent, or 
create delay. A vexatious or false defense, resorted to 
under the old system of pleading for purposes of delay 
and annoyance. Such a plea may be ordered stricken on 
motion under Rules of Civil P. 12(f). 
Special plea. In common law pleading, a special kind of 
plea in bar, distinguished by this name from the general 
issue, and consisting usually of some new affirmative 
matter, though it may also be in the form of a traverse 
or denial. Abolished under Rules of Civil Procedure. 
Special plea in bar. In common law pleading, one which 
advances new matter. It differs from the general, in 
this: that the latter denies some material allegation, but 
never advances new matter. Abolished under Rules of 
Civil Procedure. 
Plea agreement. See Plea bargaining. 
1152 
Plea bargaining. The process whereby the accused and 
the prosecutor in a criminal case work out a mutually 
satisfactory disposition of the case subject to court ap
proval. It usually involves the defendant's pleading 
guilty to a lesser offense or to only one or some of the 
counts of a multi-count indictment in return for a light
er sentence than that possible for the graver charge. 
Plea bargaining procedures in the federal courts are 
governed by Fed.R.Crim.P. ll (e). 
Plead. To make, deliver, or file any pleading; to con
duct the pleadings in a cause. To interpose any plead
ing in a civil action. More particularly, to deliver in a 
formal manner the defendant's answer to the plaintiffs 
declaration, complaint or to the indictment, as the case 
may be. See Pleadings. 
Pleader. A person whose business it was to draw plead
ings. Formerly, when pleading at common law was a 
highly technical and difficult art, there was a class of 
men known as "special pleaders not at the bar," who 
held a position intermediate between counsel and attor
neys. In current usage, the pleader is the party assert
ing a particular pleading. 
Pleadings. The formal allegations by the parties to a 
lawsuit of their respective claims and defenses, with the 
intended purpose being to provide notice of what is to be 
expected at trial. 
Rules or Codes of Civil Procedure. Unlike the rigid 
technical system of common law pleading, pleadings 
under federal and state rules or codes of civil procedure 
have a far more limited function, with determination 
and narrowing of facts and issues being left to discovery 
devices and pre-trial conferences. In addition, the rules 
and codes permit liberal amendment and supplementa
tion of pleadings. 
The Field Code (q.v.) of New York was the first major 
state effort to simpl ify pleading requirements. This was 
followed by similar state civil procedure codes, and by 
the Federal Rules of Civil Procedure at the federal level. 
Under rules of civil procedure the pleadings consist of 
a complaint, an answer, a reply to a counterclaim, an 
answer to a cross-claim, a third party complaint, and a 
third party answer. Fed.R.Civil P. 7(a). 
For amendment of pleadings, see Amendment. For 
judgment on pleadings, see Judgment. See also Affirmative 
defense; Alternative pleading; Defective pleading; Respon
sive pleading; Sham (Sham pleading); Supplemental plead
ing; Variance. 
Affirmative pleadings. See Affirmative defense. 
Common law pleading. The system of rules and princi
ples, established in the common law, according to which 
the pleadings or responsive allegations of litigating par
ties were framed with a view to preserve technical 
propriety and to produce a proper issue. 
The process performed by the parties to a suit or 
action, in alternatel y presenting written statements of 
their contention, each responsive to that which precedes, 
and each serving to narrow the field of controversy, 
until there evolves a single point, affirmed on one side

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1153 
and denied on the other, called the "issue," upon which 
they then go to trial. 
The individual allegations of the respective parties to 
an action at common law proceeded from them alter
nately in the order and under the following distinctive 
names: The plaintiffs declaration, the defendant's plea, 
the plaintiffs replication, the defendant's rejoinder, the 
plaintiffs surrejoinder, the defendant's rebutter, the 
plaintiffs surrebutter; after which they have no distinc
tive names. 
Pleading Fifth Amendment. See Self-incrimination. 
Plead over. To pass over, or omit to notice, a material 
allegation in the last pleading of the opposite party; to 
pass by a defect in the pleading of the other party 
without taking advantage of it. In another sense, to 
plead the general issue, after one has interposed a 
demurrer or special plea which has been dismissed by a 
judgment of respondeat ouster. Obsolete under Rules of 
Civil Procedure. 
Plea in abatement. See Plea (Plea in abatement). 
Plea negotiations. See Plea bargaining. 
Plea of privilege. In Texas, objection to venue is raised 
by a plea of privilege to be sued in the county of one's 
residence, and such plea if filed in due time, must be 
sustained unless the case falls within one of the excep
tions in the venue statute. 
Plebeity /pl�biy�tiy/ or plebity /pleb�tiy/. The com
mon or meaner sort of people; the plebeians. 
Plebeyos /plebeyows/. In Spanish law, commons; those 
who exercise any trade, or who cultivate the soil. 
Plebiscite /pleb�saytrs�trsiyt/. A vote of the people 
expressing their choice for or against a proposed law or 
enactment, submitted to them, and which, if adopted, 
will work a change in the constitution, or which is 
beyond the powers of the regular legislative body. See 
also Referendum. 
Plebiscitum /pleb�sayt�m /. Lat. In Roman law, a law 
enacted by the plebs or commonalty (that is, the citizens, 
with the exception of the patricians and senators), at the 
request or on the proposition of a plebeian magistrate, 
such as a "tribune." 
Plebs /plebz/. Lat. In Roman law, the commonalty or 
citizens, exclusive of the patricians and senators. 
Pledge. A bailment, pawn, or deposit of personal prop
erty to a creditor as security for some debt or engage
ment. Personal property transferred to pledgee as se
curity for pledgor's payment of debt or other obligation. 
Jacobs v. Great Pacific Century Corp., 204 N.J.Super. 
605, 499 A.2d 1023, 1025. A pledge, considered as a 
transaction, is a bailment or delivery of goods or proper
ty by way of security for a debt or engagement, or as 
security for the performance of an act. Another defini
tion is that a pledge is a security interest in a chattel or 
in an intangible represented by an indispensable instru
ment (such as formal, written evidence of an interest in 
an intangible so representing the intangible that the 
enjoyment, transfer, or enforcement of the intangible 
PLENARTY 
depends upon possession of the instrument), the interest 
being created by a bailment for the purpose of securing 
the payment of a debt or the performance of some other 
duty. A pledge is a promise or agreement by which one 
binds himself to do or forbear something. A lien created 
by delivery of personal property by owner to another, 
upon express or implied agreement that it shall be 
retained as security for existing or future debt. Arco 
Petroleum Products Co., a Div. of Atlantic Richfield Co. 
v. R&D Automotive, Inc., 74 Ill. Dec. 197, 200, 118 
Ill.App.3d 634, 455 N.E.2d 227, 230. 
Much of the law of pledges has been replaced by the 
provisions for secured transactions in Article 9 of the 
V.C.C. 
See also Bailment; Collateral; Hypothecate; Pawn; Se
cured transaction; Security. Compare Assignment. 
Pledgee. The party to whom goods are pledged, or 
delivered in pledge. A person holding property as col
lateral security for his own benefit. Raible v. Puerto 
Rico Indus. Development Co., C.A. Puerto Rico, 392 F.2d 
424, 426. 
Pledgery. Suretyship, or an undertaking or answering 
for another. 
Pledges. In common law pleading, those persons who 
became sureties for the prosecution of the suit. Their 
names were anciently appended at the foot of the decla
ration. In time it became purely a formal matter, 
because the plaintiff was no longer liable to be amerced 
for a false claim, and the fictitious persons John Doe 
and Richard Roe became the universal pledges, or they 
might be omitted altogether; or inserted at any time 
before judgment; they are now omitted. 
Pledgor /plej�r/. The party delivering goods in pledge; 
the party pledging. 
Plegii de retorno habendo /plejiyay diy r�t6rnow 
h�bendow/. In common law, pledges to return the sub
ject of distress, should the right be determined against 
the party bringing the action of replevin. 
Plegiis acquietandis /plejiy�s �kway�trend�s/. A writ 
that anciently lay for a surety against him for whom he 
was surety, if he paid not the money at the day. 
Pleito /pleytow/. In Spanish law, the pleadings in a 
cause. 
Plena retas /pliyn� iytres/. Lat. In old English law, full 
age. 
Plena et celeris justitia fiat partibus /pliyn� et sel�r�s 
j�stish(iy)� fay�t part�b�s/. Let full and speedy justice 
be done to the parties. 
Plena forisfactura /pliyn� for�sfrektyur�/. A forfeiture 
of all that one possesses. 
Plena probatio /pliyn� prowbeysh(iy)ow/. In the civil 
law, a term used to signify full proof (that is, proof by 
two witnesses), in contradistinction to semi-plena proba
tio, which is only a presumption. 
Plenarty / pliyn�rtiy / plen 0/ . In old English law, full
ness; a state of being full. A term applied to a benefice

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PLENARTY 
when full, or possessed by an incumbent. The opposite 
state to a vacation, or vacancy. 
Plenary. Full, entire, complete, absolute, perfect, un
qualified. Mashunkashey v. Mashunkashey, 191 Okl. 
501, 134 P.2d 976, 979. 
Plenary action. A complete and formal hearing or trial 
on the merits as distinguished from a summary hearing 
which is commonly less strict and more informal. May 
v. Henderson, 268 U.S. 111, 45 S.Ct. 456, 69 L.Ed. 870. 
Plenary confession. A full and complete confession. 
An admission or confession, whether in civil or criminal 
law, is said to be "plenary" when it is, if believed, 
conclusive against the person making it. 
Plenary jurisdiction. Full and complete jurisdiction or 
power of a court over the subject matter as well as the 
parties to a controversy. See also Jurisdiction. 
Plenary powers. Authority and power as broad as is 
required in a given case. 
Plenary proceedings. See Plenary action. 
Plenary session. A meeting of all members of a deliber
ative body, as distinguished from a meeting of a commit
tee of the same body. 
Plenary suit. One that proceeds on formal pleadings. 
Central Republic Bank and Trust Co. v. Caldwell, C.C.A. 
Mo., 58 F.2d 721. See also Plenary action. 
Plene Ipliyniy/. Lat. Completely; fully; sufficiently. 
Plene administravit /pliyniy �dmin�streyv�t/. A plea 
by an executor or administrator that he has fully admin
istered all the assets that have come to his hands, and 
that no assets remain out of which the plaintiffs claim 
could be satisfied. 
Plene administravit prreter /pliyniy �dmin�streyv�t 
priyt�r/. A plea by an executor or administrator that 
he has "fully administered" all the assets that have 
come to his hands, "except" assets to a certain amount, 
which are not sufficient to satisfy the plaint iff. 
Plene computavit /pliyniy kompy�teyv�t/. He has fully 
accounted. A plea in an action of account render, 
alleging that the defendant has fully accounted. 
Plenipotentiary /plen�p�tensh(iy)�riy/. One who has 
full power to do a thing; a person fully commissioned to 
act for another. A term applied in international law to 
ministers and envoys of the second rank of public minis
ters. 
Plenum dominium /pliyn�m d�mini y�m/. Lat. In the 
civil law, full ownership; the property in a thing united 
with the usufruct. 
Plevin / plEw�n/ . A warrant, or assurance. 
Plight. In old English law, an estate, with the habit and 
quality of the land; extending to a rent charge and to a 
possibility of dower. 
Plot. See Plat or plot. 
Plottage. A term used in appraising land values and 
particularly in eminent domain proceedings to designate 
1154 
the additional value given to city lots by the fact that 
they are contiguous, which enables the owner to utilize 
them as large blocks of land. Plottage is a recognized 
concept in the field of eminent domain, referring to an 
added increment of value which may accrue to two or 
more vacant and unimproved contiguous parcels of land 
held in one ownership because of their potentially en
hanced marketability by reason of their greater use 
adaptability as a single unit; simplistically stated, an 
assemblage of vacant and unimproved contiguous par
cels held in one ownership may have a greater value as 
a whole than the sum of their values as separate constit
uent parcels and, hence, plottage value may be con
sidered in determining fair market value. State ex reI. 
State Highway Commission of Missouri v. Armacost 
Motors, Inc., Mo.App., 552 S.W.2d 360, 364. 
Plow back. To retain earnings for continued invest
ment in the business. To reinvest the earnings and 
profits into the business instead of paying them out as 
dividends or withdrawals by partners or proprietor. 
Plunder, v. To pillage or loot. To take property from 
persons or places by open force, and this may be in 
course of a war, or by unlawful hostility, as in the case 
of pirates or robbers. The term is also used to express 
the idea of taking property from a person or place, 
without just right, but not expressing the nature or 
quality of the wrong done. 
Plunder, n. Personal property belonging to an enemy, 
captured and appropriated on land; booty. Also the act 
of seizing such property. See Booty; Prize. 
Plunderage. In maritime law, the embezzlement of 
goods on board of a ship is so called. 
Plural. Containing more than one; consisting of or 
designating two or more. 
Plurality /plurrel�diy/. The excess of the votes cast for 
one candidate over those cast for any other. Where 
there are only two candidates, he who receives the 
greater number of the votes cast is said to have a 
majority; when there are more than two competitors for 
the same office, the person who receives the greatest 
number of votes has a plurality, but he has not a 
majority unless he receives a greater number of votes 
than those cast for all his competitors combined, or, in 
other words, more than one-half of the total number of 
votes cast. 
A plurality normally refers to the state of being nu
merous; a large number or quantity; while it may 
perhaps mean two, it embraces any number in excess of 
two. Technograph Printed Circuits, Limited v. Bendix 
Aviation Corp., D.C.Md., 218 F.Supp. 1, 52. 
An opinion of an appellate court in which more jus
tices join than in any concurring opinion (though not a 
majority of the court) is a plurality opinion as distin
guished from a majority opinion in which a larger 
number of the justices on the panel join than not. 
Plural marriage. See Marriage; Polygamy. 
Pluries fie fa. /pl(y)uriyiyz fay(�ray) fey(shiy�s)/. A writ 
issued where other commands of the court have proved

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1155 
ineffectual. Process that issues in the third instance, 
after the first and the alias have been ineffectual. 
Pluries writs of execution. Third and subsequent writs 
of execution issued to enforce a judgment that was not 
satisfied by the sheriff acting under the original and 
alias writs of execution. 
Plus exempla quam peccata nocent /pl:lS ;:)gzempl;:) 
kwrem p;:)keyt;:) nOs;:)nt/. Examples hurt more than 
crimes. 
Plus peccat author quam actor /pl:ls pek;:)t o(J;:)r kwrem 
rekt;:)r /"pek;:)t okt;:)rO / • The originator or instigator of a 
crime is a worse offender than the actual perpetrator of 
it. Applied to the crime of subornation of perjury. 
Plus petitio /pl:ls p;:)tish(iy)ow/. In Roman law, a phrase 
denoting the offense of claiming more than was just in 
one's pleadings. Prior to Justinian's time, this offense 
was in general fatal to the action; but, under the legisla
tion of the emperors Zeno and Justinian, the offense (if 
re, loco, or causa ) exposed the party to the payment of 
three times the damage, if any, sustained by the other 
side, and (if tempore) obliged him to postpone his action 
for double the time, and to pay the costs of his first 
action before commencing a second. 
Plus valet consuetudo quam concessio /pl:ls vrebt 
konsw;:)tyuwdow kwrem k;:)nsesh(iy)ow/. Custom is more 
powerful than grant. 
Plus valet unus oculatus testis quam auriti decem 
/pl:ls vrel;:)t yuwn;:)s oky;:)leyd;:)s test;:)s kwrem or;:)tay 
des;:)m/. One eye-witness is of more weight than ten 
ear-witnesses [or those who speak from hearsay]. 
Plus vident oculi quam oculus /pl:ls vid;:)nt oky;:)lay 
kwrem oky;:)l;:)s/. Several eyes see more than one. 
P.M. An abbreviation for "postmaster;" also for "post
meridiem, " afternoon. 
Pneumoconiosis /nuwmowkowniyow s;:)s/. A generic 
term including all lung diseases caused by dust particles 
of any sort. Genesco, Inc. v. Greeson, 105 Ga.App. 798, 
125 S.E.2d 786, 789. See Black Lung Benefits Act. 
P.O. An abbreviation of "public officer;" also of "post-of
fice." 
Poach. To steal or destroy game on another's land. See 
Poaching. 
Poaching. In criminal law, the unlawful entry upon 
land for the purpose of taking or destroying fish or 
game. The illegal taking or killing of fish or game. 
Pocket veto. The act of the President in retaining a 
legislative bill without approving or rejecting it at the 
end of the legislative session and, in effect, vetoing it by 
such inactivity. See U.S. Constitution, Art. I, Sec. 7, Cl. 
2. 
P.O.D. account. An account payable on request to one 
person during lifetime and on his death to one or more 
P.O.D. payees, or to one or more persons during their 
lifetimes and on the death of all of them to one or more 
P.O.D. payees. Uniform Probate Code, § 6-101(11). 
POINT 
Prena /piyn;:)/. Lat. Punishment; a penalty. 
Prena ad paucos, metus ad omnes perveniat /piyn;:) red 
pokows, miyt;:)s red omniyz p;:)rviyn(i)y;:)t/. If punishment 
be inflicted on a few, a dread comes to all. 
Prena corporalis /piyn;:) korp;:)reybs /. Corporal punish
ment. 
Prenre potius molliendre quam exasparandre sunt 
/piyniy powsh(iy);:)s moliyendiy kwrem ;:)gzresp;:)rrendiy 
s:lnt/. Punishments should rather be softened than 
aggravated. 
Prenre sint restringendre /piyniy sint restrinjendiy/. 
Punishments should be restrained. 
Prenre suos tenere debet actores et non alios /piyn;:) 
suwows t;:)niriy deb;:)t rektoriyz et non reliyows/. Punish
ment ought to be inflicted upon the guilty, and not upon 
others. 
Prena ex delicto defuncti hreres teneri non debet 
/piyn;:) eks d;:)liktow d;:)f:lIJktay hiriyz t;:)niray non deb;:)t/. 
The heir ought not to be bound by a penalty arising out 
of the wrongful act of the deceased. 
Prenalis /p;:)neyl;:)s/. Lat. In the civil law, penal; impos
ing a penalty; claiming or enforcing a penalty. Ac
tiones prenales, penal actions. 
Prena non potest, culpa perennis erit /piyn;:) non 
powt;:)st, k:llp;:) p;:)ren;:)s ehr;:)t/. Punishment cannot be, 
crime will be, perpetual. 
Prena pilloralis /piyn;:) pil;:)reyl;:)s/. In old English law, 
punishment of the pillory. 
Prena suos tenere debet actores et non alios /piyn;:) 
s(y)uwows t;:)niriy deb;:)t rektoriyz et non reliyo ws/. Pun
ishment ought to bind the guilty, and not others. 
Prena tolli potest, culpa perennis erit /piyn;:) tolay 
powt;:)st, k:llp;:) p;:)ren;:)s ehr;:)t/. The punishment can be 
removed, but the crime remains. 
Prenitentia /pen;:)tensh(iy);:)/piyn ° /. Lat. In the civil 
law, repentance; reconsideration; changing one's mind; 
drawing back from an agreement already made, or re
scinding it. 
Locus prenitentire. Room or place for repentance or 
reconsideration; an opportunity to withdraw from a 
negotiation before finally concluding the contract or 
agreement. Also, in criminal law, an opportunity af
forded by the circumstances to a person who has formed 
an intention to kill or to commit another crime, giving 
him a chance to reconsider and relinquish his purpose. 
Point. A distinct proposition or question of law arising 
or propounded in a case. See also Issue. 
In the case of shares of stock, a point means $1. In 
the case of bonds a point means $10, since a bond is 
quoted as a percentage of $1,000. In the case of market 
averages, the word point means merely that and no 
more. If, for example, the Dow-Jones Industrial Aver
age rises from 870.25 to 871.25, it has risen a point. A 
point in this average, however, is not equivalent to $1.

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POINT 
Real estate financing. The word "point" as used in 
home mortgage finance industry denotes a fee or charge 
equal to one percent of principal amount of loan which 
is collected by lender at time the loan is made. It is a 
fee or charge which is collected only once, at inception of 
loan, and is in addition to constant long-term stated 
interest rate on face of loan. B. F. Saul Co. v. West End 
Park North, Inc., 250 Md. 707, 246 A.2d 591, 595, 597. 
Point reserved. When, in the progress of the trial of a 
cause, an important or difficult point of law is presented 
to the court, and the court is not certain of the decision 
that should be given, it may reserve the point, that is, 
decide it provisionally as it is asked by the party, but 
reserve its more mature consideration for the hearing 
on a motion for a new trial, when, if it shall appear that 
the first ruling was wrong, the verdict will be set aside. 
The point thus treated is technically called a "point 
reserved." 
Points. See Point. 
Points of law. Those distinct propositions of law on 
which each side relies in a lawsuit, and on which the 
court bases its decision (opinion) on. 
Point system. The "point system" , with respect to sus
pension of license of operator of a motor vehicle, auto
matically fixes penalty points following conviction of 
moving traffic violations and provides for mandatory 
suspension of the driver's license of a person who has 
accumulated a statutorialy prescribed number of points 
within a year involved. Sturgill v. Beard, Ky., 303 
S.W.2d 908, 909. 
Poison. A substance having an inherent deleterious 
property which renders it, when taken into the system, 
capable of destroying life. A substance which, on being 
applied to the human body, internally or externally, is 
capable of destroying the action of the vital functions, or 
of placing the solids and fluids in such a state as to 
prevent the continuance of life. 
Poisonous tree doctrine. Doctrine refers to an illegal 
arrest or search which leads officers to evidence seized 
in a proper manner that may be inadmissible because of 
the taint of the original illegality. Com. v. Spofford, 343 
Mass. 703, 180 N .E.2d 673. Sometimes also referred to 
as "fruit of poisonous tree" doctrine (q.v.). 
Poison pill. A defensive tactic used by a company that 
is a target of an unwanted takeover to make its shares 
or financial condition less attractive to an acquirer. For 
instance, a firm may issue a new series of preferred 
shares that give shareholders the right to compel their 
redemption at a premium price after a takeover. See 
also Lockup; Porcupine provisions; White knight. 
Polar star rule. The rule that the intent of the maker 
of a written document, as gathered from its four corners, 
shall prevail unless such intent conflicts with some 
statutory provision within the jurisdiction, or is against 
public policy. Hanks v. McDanell, 307 Ky. 243, 210 
S.W.2d 784, 786. 
1156 
Pole. A measure of length, equal to five yards and a 
half. 
Police. Branch of the government which is charged with 
the preservation of public order and tranquillity, the 
promotion of the public health, safety, and morals, and 
the prevention, detection, and punishment of crimes. 
See also Internal police; Peace (Peace officers); Sheriff. 
Police court. The name of an inferior court in several 
of the states, which has jurisdiction over minor offenses 
and city ordinances, concurrent jurisdiction in certain 
matters with justices of the peace, and the powers of a 
committing magistrate in respect to more serious 
crimes, and, in some states, a limited jurisdiction for the 
trial of civil causes. 
Police jury. In Louisiana, the governing bodies of the 
parishes, which are political subdivisions of the state, 
comparable to counties in other states. National Liber
ty Ins. Co. of America v. Police Jury of Natchitoches 
Parish, C.C.A.La., 96 F.2d 261, 262. 
Police justice. A magistrate charged exclusively with 
the duties incident to the common-law office of a conser
vator or justice of the peace; the prefix "police" serving 
merely to distinguish them from justices having also 
civil jurisdiction. 
Police magistrate. An inferior judicial officer having 
jurisdiction of minor criminal offenses, breaches of po
lice regulations, and the like; so called to distinguish 
them from magistrates who have jurisdiction in civil 
cases also, as justices of the peace. 
Police officer. One of the staff of persons employed in 
cities and towns to enforce the municipal laws and 
ordinances for preserving the peace, safety, and good 
order of the community. Also called "policeman" or 
"policewoman"; "patrolman" or "patrolwoma n", or 
"peace officer". See also Peace (Peace officers). 
Police power. An authority conferred by the American 
constitutional system in the Tenth Amendment, U.S. 
Const., upon the individual states, and, in turn, delegat
ed to local governments, through which they are en
abled to establish a special department of police; adopt 
such laws and regulations as tend to prevent the com
mission of fraud and crime, and secure generally the 
comfort, safety, morals, health, and prosperity of its 
citizens by preserving the public order, preventing a 
conflict of rights in the common intercourse of the 
citizens, and insuring to each an uninterrupted enjoy
ment of all the privileges conferred upon him or her by 
the general laws. 
The power of the State to place restraints on the 
personal freedom and property rights of persons for the 
protection of the public safety, health, and morals or the 
promotion of the public convenience and general pros
perity. The police power is subject to limitations of the 
federal and State constitutions, and especially to the 
requirement of due process. Police power is the exercise 
of the sovereign right of a government to promote order, 
safety, security, health, morals and general welfare 
within constitutional limits and is an essential attribute

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• 
1157 
of government. Marshall v. Kansas City, Mo., 355 
S.W.2d 877, 883. 
Policy. The general principles by which a government is 
guided in its management of public affairs, or the legis
lature in its measures. 
A general term used to describe all contracts of insur
ance. See Policy of insurance. 
This term, as applied to a law, ordinance, or rule of 
law, denotes its general purpose or tendency considered 
as directed to the welfare or prosperity of the state or 
community. 
A species of "lottery" whereby the chance is deter
mined by numbers; "numbers game" also being a lot
tery. People v. Hines, 258 App.Div. 466, 17 N.Y.S.2d 
141, 142. Policy is a lottery or game of chance where 
bettors select numbers to bet on and place the bet with a 
policy writer. State v. Harris, Mo.App., 325 S.W.2d 352, 
354. See Lottery. 
Public policy. That principle of the law which holds 
that no subject can lawfully do that which has a tenden
cy to be in jurious to the public or against the public 
good. The principles under which the freedom of con
tract or private dealings is restricted by law for the good 
of the community. The term "policy," as applied to a 
statute, regulation, rule of law, course of action, or the 
like, refers to its probable effect, tendency, or object, 
considered with reference to the social or political well
being of the state. Thus, certain classes of acts are said 
to be "against public policy," when the law refuses to 
enforce or recognize them, on the ground that they have 
a mischievous tendency, so as to be injurious to the 
interests of the state, apart from illegality or immorali
ty. 
Policyholder. The person who owns the policy of insur
ance whether he is the insured or not. In most states, 
any person with an insurable interest may be a policy
holder. 
Policy of insurance. An instrument in writing, by 
which one party (insurer), in consideration of a premi
um, engages to indemn ify another (insured) against a 
contingent loss, by making him a payment in compensa
tion, whenever the event shall happen by which the loss 
is to accrue. Contract whereby insurer, in return for 
premiums, engages, on happening of designated event, 
to pay certain sum as provided. In re O'Neill's Estate, 
143 Misc. 69, 255 N.Y.S. 767, 771. The evidence deliv
ered to the insured of the contract of the insurer, and 
ordinarily, of itself, constitutes complete evidence of the 
contract. United Ben. Life Ins. Co. v. McCrory, C.A. 
Neb., 414 F.2d 928, 932. 
The written instrument in which a contract of insur
ance is set forth. 
See also Face of policy; Floater policy; Homeowners 
policy; Master policy. 
Assessable policy. A policy under which a policyholder 
may be held liable for losses of the insurance company 
beyond its reserves. 
POLICY OF INSURANCE 
Blanket policy. A policy of fire insurance which con
templates that the risk is shifting, fluctuating, or vary
ing, and is applied to a class of property rather than to 
any particular article or thing. 
The term "specific" as applied in insurance phraseolo
gy is frequently used in contrast with "blanket insur
ance" and denotes coverage of a particular piece of 
property or property at a specific location, as contrasted 
with blanket insurance which covers the same and other 
property in several different locations. 
Class of life insurance policies. Those policies issued in 
the same calendar year, upon the lives of persons of the 
same age, and on the same plan of insurance. 
Endowment policy. A policy which agrees to pay to the 
insured, if living at the expiration of a certain period, a 
specified amount of money, and in the event of his death 
in the interim, agrees to pay the face amount of the 
policy to his designated beneficiary. Silen v. Silen, 44 
Wash.2d 884, 271 P.2d 674, 676. 
Extended policy. A policy which provides protection 
beyond the time when premiums are no longer paid. 
Floater policy. A policy of fire insurance not applicable 
to any specific described goods, but to any and all goods 
which may at the time of the fire be in a certain 
building. 
Incontestable policy. A policy which contains a provi
sion to the effect that the company after the policy has 
been in force cannot contest, challenge or cancel the 
policy on the basis of statements made in the applica
tion. The period of contestability may be one, two or 
three years. 
Interest policy. One where the assured has a real, 
SUbstantial, and assignable interest in the thing insured; 
as opposed to a wager policy. 
Master policy. In group life, medical, etc. insurance, the 
single policy under which the participants are covered. 
The individuals covered by the master policy receive a 
certificate indicating their participation. 
Mixed policy. A policy of marine insurance in which 
not only the time is specified for which the risk is 
limited, but the voyage also is described by its local 
termini; as opposed to policies of insurance for a partic
ular voyage, without any limits as to time, and also to 
purely time policies, in which there is no designation of 
local termini at all. 
Open policy. One in which the value of the subject 
insured is not fixed or agreed upon in the policy as 
between the assured and the underwriter, but is left to 
be estimated in case of loss. The term is opposed to 
"valued policy," in which the value of the subject in
sured is fixed for the purpose of the insurance, and 
expressed on the face of the policy. But this term is also 
sometimes used to describe a policy in which an aggre
gate amount is expressed in the body of the policy, and 
the specific amounts and subjects are to be indorsed 
from time to time.

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POLICY OF INSURANCE 
Paid-up policy. In life insurance, a policy on which no 
further payments are to be made in the way of annual 
premiums. 
Participating policy. A policy commonly found in mutu
al insurance companies and in some stock companies in 
which the insured participates in the profits by receiv
ing dividends or rebates from future premiums. 
Policy loan. An advancement on life policy without a 
personal obligation on the part of the policyholder as to 
repayment. Board of Assessors of the Parish of Orleans 
v. New York Life Ins. Co., 216 U.S. 517, 30 S.Ct. 385, 54 
L.Ed. 597. A loan made by an insurance company 
which takes the policy's cash reserve as security for the 
loan. 
Policy reserves. Funds held by insurance company spe
cifically to meet its policy obligations. 
Term policy. In life insurance, a policy which gives 
protection for a specified period of time but no cash or 
reserve value is created in the policy. See Insurance. 
Time policy. In fire insurance, one made for a defined 
and limited time, as, one year. In marine insurance, 
one made for a particular period of time, irrespective of 
the voyage or voyages upon which the vessel may be 
engaged during that period. 
Valued policy. One in which the value of the thing 
insured, and also the amount to be paid thereon in the 
event of loss, is settled by agreement between the par
ties and inserted in the policy. 
Voyage policy. A policy of marine insurance effected for 
a particular voyage or voyages of the vessel, and not 
otherwise limited as to time. 
Wager policy. An insurance upon a subject-matter in 
which the party assured has no real, valuable, or insur
able interest. A mere wager policy is that in which the 
party assured has no interest in the thing assured, and 
could sustain no possible loss by the event insured 
against, if he had not made such wager. Such policies 
are generally illegal, or not otherwise written, because 
the insured does not have an insurable interest. 
Policy value. The amount of cash available to the 
policyholder on the surrender or cancellation of the 
insurance policy. 
Policy year. In insurance, the year which commences 
with the date of the commencement or anniversary of 
the policy. 
Politire legibus non leges politiis adaptandre 
/p�lishiy(iy) liyj�b�s non liyjiyz p�lishiy�s (ed�ptrendiy/. 
Politics are to be adapted to the laws, and not the laws 
to politics. 
Political. Pertaining or relating to the policy or the 
administration of government, state or national. Per
taining to, or incidental to, the exercise of the functions 
vested in those charged with the conduct of government; 
relating to the management of affairs of state, as politi
cal theories; of or pertaining to exercise of rights and 
privileges or the influence by which individuals of a 
1158 
state seek to determine or control its public policy; 
having to do with organization or action of individuals, 
parties, or interests that seek to control appointment or 
action of those who manage affairs of a state. State ex 
reI. Maley v. Civic Action Committee, 238 Iowa 851, 28 
N.W.2d 467, 470. 
Political action committees. See PAC. 
Political corporation. A public or municipal corpora
tion; one created for political purposes, and having for 
its object the administration of governmental powers of 
a subordinate or local nature. 
Political crime. In general, any crime directly against 
the government; e.g. treason; sedition. It includes any 
violent political disturbance without reference to a spe
cific crime. See also Political offenses. 
Political law. That branch of jurisprudence which 
treats of the science of politics, or the organization and 
administration of government. More commonly called 
"Political science." 
Political liberty. See Liberty. 
Political offenses. As a designation of a class of crimes 
usually excepted from extradition treaties, this term 
denotes crimes which are incidental to and form a part 
of political disturbances; but it might also be understood 
to include offenses consisting in an attack upon the 
political order of things established in the country 
where committed, and even to include offenses commit
ted to obtain any political object. Under extradition 
treaties is an offense committed in the course of and 
incidental to a violent political disturbance, such as war, 
revolution and rebellion; an offense is not of a political 
character simply because it was politically motivated. 
Escobedo v. U.S., C.A.Fla., 623 F.2d 1098, 1104. See also 
Political crime. 
Political office. See Office. 
Political party. An association of individuals whose 
primary purposes are to promote or accomplish elections 
or appointments to public offices, positions, or jobs. 
State ex reI. Corrigan v. Cleveland-Cliffs Iron Co., 169 
Ohio St. 42, 157 N.E.2d 331, 333. A committee, associa
tion, or organization which accepts contributions or 
makes expenditures for the purpose of influencing or 
attempting to influence the election of presidential or 
vice presidential electors or of any individual whose 
name is presented for election to any federal, state, or 
local elective public office, whether or not such individu
al is elected. Cal. Rev. & Tax Code § 24434(b)(1)(C). 
Political questions. Questions of which courts will re
fuse to take cognizance, or to decide, on account of their 
purely political character, or because their determina
tion would involve an encroachment upon the executive 
or legislative powers. 
"Political question doctrine" holds that certain issues 
should not be decided by courts because their resolution 
is committed to another branch of government and/or 
because those issues are not capable, for one reason or

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1159 
another, of judicial resolution. Islamic Republic of Iran 
v. Pahlavi, 116 Misc,2d 590, 455 N.Y.S.2d 987, 990. 
A matter of dispute which can be handled more appro
priately by another branch of the government is not a 
"justiciable" matter for the courts. However, a state 
apportionment statute is not such a political question as 
to render it nonjusticiable. Baker v. Carr, 369 U.S. 186, 
208-2 10, 82 S.Ct. 691, 705-706, 7 L.Ed.2d 663. 
Compare Justiciable controversey. 
Political rights. Those which may be exercised in the 
formation or administration of the government. Rights 
of citizens established or recognized by constitutions 
which give them the power to participate directly or 
indirectly in the establishment or administration of 
government. 
Political subdivision. A division of the state made by 
proper authorities thereof, acting within their constitu
tional powers, for purpose of carrying out a portion of 
those functions of state which by long usage and inher
ent necessities of government have always been regard
ed as public. State ex reI. Maisano v. Mitchell, 155 
Conn. 256, 231 A.2d 539, 542. 
Political trial. Term loosely applied to trials in which 
the parties represent fundamentally different political 
convictions and in which the parties or one of them 
attempts to litigate their political beliefs. 
Politics. The science of government; the art or practice 
of administering public affairs. 
Polity. The form of government; civil constitution. 
Polity approach. The "polity approach" under which a 
civil court may properly resolve church property dis
putes requires court to determine whether church orga
nization is congregational or hierarchical and then re
solve dispute in accordance with decision by proper 
church-governing body. Bernson v. Koch, 35 Colo.App. 
257, 534 P.2d 334, 337. 
Poll, v. To single out, one by one, of a number of 
persons. To examine each juror separately, after a 
verdict has been given, as to his concurrence in the 
verdict. See Polling the jury. 
Poll, n. A head; an individual person; a register of 
persons. In the law of elections, a list or register of 
heads or individuals who may vote in an election; the 
aggregate of those who actually cast their votes at the 
election, excluding those who stay away. 
Polling the jury. A practice whereby the jurors are 
asked individually whether they assented, and still as
sent, to the verdict. State v. Linder, 276 S.C. 304, 278 
S.E.2d 335, 337. To poll a jury is to call the names of 
the persons who compose a jury and require each juror 
to declare what his verdict is before it is recorded. This 
may be accomplished by questioning them individually 
or by ascertaining fact of unanimous concurrence by 
general question, and once concurrence has been deter
mined, the polling is at an end. Fortenberry v. New 
York Life Ins. Co., C.A.Tenn., 459 F.2d 114, 115. 
POLYGAMY 
If upon the poll there is not unanimous concurrence, 
the jury may be directed to retire for further delibera
tions or may be discharged. Fed.R.Crim.P. 31. 
Polls. The place where electors cast in their votes. 
Poll-tax. A capitation tax; a tax of a specific sum levied 
upon each person within the jurisdiction of the taxing 
power and within a certain class (as, all males of a 
certain age, etc.) without reference to his property or 
lack of it. A tax upon the privilege of being; it is a sum 
levied upon persons without regard to property, occupa
tion, income or ability to pay. Tiefel v. Gilligan, Ohio 
Com.PI., 41 Ohio Misc. 76, 322 N.E.2d 916, 920. 
Poll taxes as a prerequisite to voting in federal elec
tions are prohibited by the 24th Amendment and as to 
state elections such were held to be unconstitutional in 
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 
S.Ct. 1079, 16 L.Ed.2d 169. 
Po. 10. suo. An old abbreviation for the words "ponit 
loco suo" (puts in his place), used in warrants of attor
ney. 
Pollute. To corrupt or defile. The contamination of 
soil, air and water by noxious substances and noises. 
See also Pollution. 
Pollution. Contamination of the environment by a vari
ety of sources including but not limited to hazardous 
substances, organic wastes and toxic chemicals. Pollu
tion is legally controlled and enforced through various 
federal and state laws and agencies, including common 
law nuisance laws, e.g., Boomer v. Atlantic Cement Co., 
26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870. Ex
amples of federal laws are the Clean Water Act, 33 
U.S.C.A. § 1251 et seq. and the Clean Air Act, 31 U.S. 
C.A. § 7401 et seq. See also Environmental Protection 
Agency; Hazardous substance; Superfund; Toxic waste. 
Polyandry Ipoliyrendriy/. The civil condition of having 
more husbands than one to the same woman; a social 
order permitting plurality of husbands. 
Polygamia est plurium simul virorum uxorumve con
nubium Ipol;}geymiy;} est pl(y)uriy;}m saym;}l v;}ror;}m 
�ks;}r�mviy k;}n(y)uwbiy;}m /. Polygamy is the marriage 
with many husbands or wives at one time. 
Polygamy Ip;}lig;}miy I. The offense of having several 
wives or husbands at the same time, or more than one 
wife or husband at the same time. Bigamy literally 
means a second marriage distinguished from a third or 
other; while polygamy means many marriages,-implies 
more than two. Polygamy is a crime in all states. 
A person is guilty of polygamy, a felony of the third 
degree, if he marries or cohabits with more than one 
spouse at a time in purported exercise of the right of 
plural marriage. The offense is a continuing one until 
all cohabitation and claim of marriage with more than 
one spouse terminates. This section does not apply to 
parties to a polygamous marriage, lawful in the country 
of which they are residents or nationals, while they are 
in transit through or temporarily visiting this State. 
Model Penal Code, § 230.1.

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POLYGARCHY 
Polygarchy Ipol;:)garkiy/. A term sometimes used to 
denote a government of many or several; a government 
where the sovereignty is shared by several persons; a 
collegiate or divided executive. 
Polygraph. Also known as a lie detector, it is an elec
tro-mechanical instrument used to determine whether 
an examinee is truthfully answering questions. It 
simultaneously measures and records certain physiologi
cal changes in the human body which it is believed are 
involuntarily caused by an examinee's conscious at
tempt to deceive an interrogator. U.S. v. DeBetham, 
D.C.Cal., 348 F.Supp. 1377, 1384. Though historically 
inadmissible on grounds of unreliability, polygraph evi
dence is increasingly being admitted if, for example, the 
parties stipulate in advance to its admission or it is 
being offered to impeach or corroborate witness testimo
ny. U.S. v. Piccinonna, C.A.Fla., 885 F.2d 1529. 
With certain exceptions, employers engaged in com
merce are statutorily prohibited from requiring employ
ees or prospective employees to submit to a polygraph 
test. Employee Polygraph Protection Act of 1988, 29 
U.S.C.A. § 2001 et seq. 
See also Lie detector. 
Polyopsony. The condition of a market characterized 
by the fewness of buyers. The fewness has an effect on 
the price of the materials or products. 
Polypoly. A market condition characterized by the few
ness of sellers where this has a direct effect on prices. 
Pomerene Bills of Lading Act. Federal Bills of Lading 
Act, 49 U.S.C.A. §§ 81-124. See Bill of lading acts. 
Pond. A body of stagnant water without an outlet, 
larger than a puddle and smaller than a lake; or a like 
body of water with a small outlet. 
Great ponds. In Maine and Massachusetts, natural 
ponds having a superficial area of more than ten acres, 
and not appropriated by the proprietors to their private 
use prior to a certain date. 
Private pond. A body of water wholly on the lands of a 
single owner, or of a single group of joint owners or 
tenants in common, which did not have any such con
nection with any public waters that fish could pass from 
one to the other. At common law, if pond was so 
connected with public waters that at time of high water, 
fish could go in and out, it was not "private pond" from 
which defendants could seine fish whether fish might go 
out same day or next season. 
Public pond. In New England, a great pond; a pond 
covering a superficial area of more than ten acres. 
Ponderantur testes, non numerantur Ipond;:)rrent;:)r 
testiyz non n(y)uwm;:)rrent;:)r/. Witnesses are weighed, 
not counted. 
Pondus Ipond;:)s/. In old English law, poundage; i.e., a 
duty paid to the crown according to the weight of 
merchandise. 
Pondus regis Ipond;:)s riyj;:)s/. The king's weight; the 
standard weight appointed by the king. 
1160 
Pone Ipowni y/. In old English practice, an original writ 
formerly used for the purpose of removing suits from the 
court-baron or county court into the superior courts of 
common law. It was also the proper writ to remove all 
suits which were before the sheriff by writ of justices. 
But this writ is now in disuse, the writ of certiorari 
being the ordinary process by which at the present day a 
cause is removed from a county court into any superior 
court. 
Ponendis in assisis Ip;:)nend;:)s in ;:)sayz;:)s/. An old writ 
directing a sheriff to impanel a jury for an assize or real 
action. 
Ponendum in ballium Ip;:)nend;:)m in breliy;:)m/. An old 
writ commanding that a prisoner be bailed in cases 
bailable. 
Ponendum sigillum ad exceptionem Ip;:)nend;:)m 
s;:)jil;:)m red ;:)ksepshiyown;:)m/. A writ by which justices 
were required to put their seals to exceptions exhibited 
by a defendant against a plaintiffs evidence, verdict, or 
other proceedings, before them. 
Pone per vadium Ipowniy p�r veydiy;:)m/. In English 
practice, an obsolete writ to the sheriff to summon the 
defendant to appear and answer the plaintiffs suit, on 
his putting in sureties to prosecute. It was so called 
from the words of the writ, "pone per vadium et salvos 
plegios," "put by gage and safe pledges, A. B., the 
defendant." 
Ponit se super patriam Ipown;:)t siy s(y)uwp;:)r. pretri
y;:)m/. Lat. He puts himself upon the country. The 
defendant's plea of not guilty in a criminal action was 
recorded, in old English practice, in these words, or in 
the abbreviated form "po. se." 
Pool. A combination of persons or corporations engaged 
in the same business, or for the purpose of engaging in a 
particular business or commercial or speculative ven
ture, where all contribute to a common fund, or place 
their holdings of a given stock or other security in the 
hands and control of a managing member or committee, 
with the object of eliminating competition as between 
the several members of the pool, or of establishing a 
monopoly or controlling prices or rates by the weight 
and power of their combined capital, or of raising or 
depressing prices on the stock market, or simply with a 
view to the successful conduct of an enterprise too great 
for the capital of any member individually, and on an 
agreement for the division of profits or losses among the 
members, either equally or pro rata. Also, a similar 
combination not embracing the idea of a pooled or 
contributed capital, but simply the elimination of de
structive competition between the members by an agree
ment to share or divide the profits of a given business or 
venture, as, for example, a contract between two or 
more competing railroads to abstain from "rate wars" 
and (usually) to maintain fixed rates, and to divide their 
earnings from the transportation of freight in fixed 
proportions. Such type pooling arrangements are il
legal under the Sherman Antitrust Act. See also Cartel; 
Trust.

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1161 
In various methods of gambling, a "pool" is a sum of 
money made up of the stakes contributed by various 
persons, the whole of which is then wagered as a stake 
on the event of a race, game, or other contest, and the 
winnings (if any) are divided among the contributors to 
the pool pro rata. Or it is a sum similarly made up by 
the contributions of several persons, each of whom then 
makes his guess or prediction as to the event of a future 
contest or hazard, the successful bettor taking the entire 
pool. Such pools are distinct from the practice of book
making. U. S. v. Berent, C.A.Nev., 523 F.2d 1360, 1361. 
A body of standing water, without a current or issue, 
accumulated in a natural basin or depression in the 
earth, and not artificially formed. See Pond. 
Pooling agreement. A contractual arrangement among 
shareholders relating to the voting of their shares. So 
long as such agreement is limited to voting as sharehold
ers, it is enforceable. 
Pooling of interests. A method of accounting for merg
ers in which the acquired company's assets are recorded 
on the acquiring company's books at their cost when 
originally acquired. No goodwill account is created un
der the pooling method. 
Poor debtors' oath. See Pauper's oath; Poverty affidavit. 
Pope. The bishop of Rome, and supreme head of the 
Roman Catholic Church. 
Popular sense. In reference to the construction of a 
statute, this term means that sense which people conver
sant with the subject-matter with which the statute is 
dealing would attribute to it. 
Populiscitum Ipopy�l�sayt�m/. Lat. In Roman law, a 
law enacted by the people; a law passed by an assembly 
of the Roman people, in the comitia centuriata, on the 
motion of a senator; differing from a plebiscitum, in 
that the latter was always proposed by one of the 
tribunes. 
Populus Ip6p(y)�I�s/. Lat. In Roman law, the people; 
the whole body of Roman citizens, including as well the 
patricians as the plebeians. 
Porcion Ipor(}(i)y6wn/. In Spanish law, a part or por
tion; a lot or parcel; an allotment of land. 
Porcupine provisions. Defensive provisions in articles 
of incorporation or bylaws designed to make unwanted 
takeover attempts impossible or impractical without the 
consent of the target's management. See also Lockup; 
Poison pill; White knight. 
Pornographic. That which is of or pertaining to ob
scene literature; obscene; licentious. Material is porno
graphic or obscene if the average person, applying con
temporary community standards, would find that the 
work taken as a whole appeals to the prurient interest 
and if it depicts in a patently offensive way sexual 
conduct and if the work taken as a whole lacks serious 
literary, artistic, political or scientific value. Miller v. 
California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2615, 37 
L.Ed.2d 419. See also Dominant theme; Obscene; Pan
der (Pandering of obscenity); Prurient interest. 
PORT 
Pornography. See Pornographic. 
Port. A place for the loading and unloading of the 
cargoes of vessels, and the collection of duties or customs 
upon imports and exports. A place, on the seacoast, 
great lakes, or on a river, where ships stop for the 
purpose of loading and unloading cargo, or for purpose 
of taking on or letting off passengers, from whence they 
depart, and where they finish their voyage. A port is a 
place intended for loading or unloading goods; hence 
includes the natural shelter surrounding water, as also 
sheltered water produced by artificial jetties, etc. The 
Baldhill, C.C.A.N.Y., 42 F.2d 123, 125. 
Foreign port. One exclusively within the jurisdiction of 
a foreign nation, hence one without the United States. 
But the term is also applied to a port in any state other 
than the state where the vessel belongs or her owner 
resides. Port other than home port. 
Free port. See that title. 
Home port. The port at which a vessel is registered or 
enrolled or where the owner resides. 
Port charges, dues, or tolls. Pecuniary exactions upon 
vessels availing themselves of the commercial conve
niences and privileges of a port. Christianssand Ship
ping Co. v. Marshall, D.C.Pa., 22 F.2d 192, 194. 
Port of call. Port at which ships usually stop on a route 
or voyage. 
Port of delivery. The port which is to be the terminus of 
any particular voyage, and where the vessel is to unlade 
or deliver her cargo, as distinguished from any port at 
which she may touch, during the voyage, for other 
purposes. 
Port of departure. The port from which vessel clears 
and departs upon start of voyage. As used in the 
United States statutes requiring a ship to procure a bill 
of health from the consular officer at the place of 
departure, is not the last port at which the ship stops 
while bound for the United States, but the port from 
which she cleared. 
Port of destination. The port at which a voyage is to 
end. In maritime law and marine insurance, the term 
includes both ports which constitute the termini of the 
voyage; the home port and the foreign port to which the 
vessel is consigned as well as any usual stopping places 
for the receipt or discharge of cargo. 
Port of discharge. In a policy of marine insurance, 
means the place where the substantial part of the cargo 
is discharged, although there is an intent to complete 
the discharge at another basin. 
Port of entry. One of the ports designated by law, at 
which a custom-house or revenue office is established for 
the execution of the laws imposing duties on vessels and 
importations of goods. Port where immigrants arrive. 
8 U.S.C.A. § 1221. 
Port-reeve, or port-warden. An officer maintained in 
some ports to oversee the administration of the local 
regulations; a sort of harbor-master.

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PORT 
Port-risk. In marine insurance, a risk upon a vessel 
while lying in port, and before she has taken her depar
ture upon another voyage. See also Port risk insurance. 
Port toll. The toll paid for bringing goods into a port. 
Portal·to-Portal Act. Federal statute regulating pay for 
non-productive time required of employee to reach place 
of employment and to return in some instances. 
Port authority. Governmental agency authorized by a 
state or the federal government to regulate and plan 
traffic through a port, and also commonly charged with 
responsibility of encouraging or securing businesses to 
locate on land or areas served by port. Sometimes such 
authorities also have responsibility over establishment 
and maintenance of airports, bridges, tollways, and sur
face transportation in metropolitan area of port; e.g. 
New York Port Authority, which is operated jointly by 
New York and New Jersey under an interstate compact. 
Portfolio. In investments, the collective term for all the 
securities (which may consist of various types) held by 
one person or institution. 
Portfolio income. Income from interest, dividends, 
rentals, royalties, capital gains, or other investment 
sources. Portfolio income is not considered passive in
come, therefore net passive losses cannot be used to 
offset net portfolio income. See also Passive investment 
income; Passive loss. 
Portio legitima /porsh(iy)ow l;:)jid;:)m;:)/. Lat. In the 
civil law, the birthright portion; that portion of an 
inheritance to which a given heir is entitled, and of 
which he cannot be deprived by the will of the decedent, 
without special cause, by virtue merely of his relation
ship to the testator. 
Portion. An allotted part; a share, a parcel; a division 
in a distribution; a share of an estate or the like, 
received by gift or inheritance. Lecompte v. Davis' Ex'r, 
285 Ky. 433, 148 S.W.2d 292, 295. See Per capita; Per 
stirpes. 
Portion disponible. Fr. In French law, that part of a 
man's estate which he may bequeath to other persons 
than his natural heirs. A parent leaving one legitimate 
child may dispose of one-half only of his property; one 
leaving two, one-third only; and one leaving three or 
more, one-fourth only; and it matters not whether the 
disposition is inter vivos or by will. 
Portoria /portoriy;:)/. In the civil law, duties paid in 
ports on merchandise. Taxes levied in old times at city 
gates. Tolls for passing over bridges. 
Port risk insurance. In contradistinction to voyage or 
time insurance, means insurance upon a vessel while 
lying in port, and before she has taken her departure on 
another voyage. Bristol S.S. Corp. v. London Assur., 
D.C.N.Y., 404 F.Supp. 749, 752. 
Portsale. In old English law, an auction; a public sale 
of goods to the highest bidder; also a sale of fish as soon 
as it is brought into the haven. 
1162 
Portus est locus in quo exportantur ewrimportantur 
merces /port;:)s est lowk;:)s in kwow eksportrent;:)r ed 
importrent;:)r m:lrsiyz/. A port is a place where goods 
are exported or imported. 
Position. Extent of person's investment in a particular 
security or market. 
Position of United States. Phrase "the position of the 
Vnited States" within meaning of section of Equal Ac
cess to Justice Act (5 V.S.C.A. § 504; 28 V.S.C.A. 
§ 2412) permitting government, when it loses a case, to 
avoid liability for attorney fees if it can show that its 
"position" was substantially justified refers to the argu
ments relied upon the government in litigation. Spenc
er v. N.L.R.B., C.A., 712 F.2d 539, 547, 229 V.S.App.D.C. 
225. See also Equal Access to Justice Act. 
Positive. Laid down, enacted, or prescribed. Express or 
affirmative. Direct, absolute, explicit. As to positive 
Condition; Fraud; Proof; and Servitude, see those titles. 
Positive evidence. Direct evidence. Eye witness testi
mony. Direct proof of the fact or point in issue; evi
dence which, if believed, establishes the truth or false
hood of a fact in issue, and does not arise from any 
presumption. It is distinguished from circumstantial 
evidence. See also Evidence. 
Positive law. Law actually and specifically enacted or 
adopted by proper authority for the government of an 
organized jural society. See also Legislation. 
Positive wrong. A wrongful act, wilfully committed. 
Padgett v. Missouri Motor Distributing Corporation, 
Mo., 177 S.W.2d 490, 492. 
Positivi juris /poz;:)tayvay jur;:)s/. Lat. Of positive law. 
Posito uno oppositorum, negatur alterum 
/p;:)zish(iy)ow yuwnow ;:)poz;:)tor;:)m n;:)geyt;:)r olt;:)r;:)m/. 
One of two opposite positions being affirmed, the other 
is denied. 
Posse /posiy/. Lat. A possibility. A thing is said to be 
in posse when it may possibly be; in esse when it 
actually is. Group of people acting under authority of 
police or sheriff and engaged in searching for a criminal 
or in making an arrest. Same as Posse comitatus (q. v.). 
Posse comitatus /posiy kom;:)teyt;:)s/. Lat. The power 
or force of the county. The entire population of a 
county above the age of fifteen, which a sheriff may 
summon to his assistance in certain cases, as to aid him 
in keeping the peace, in pursuing and arresting felons, 
etc. Williams v. State, 253 Ark. 973, 490 S.W.2d 117, 
121. 
Possess. To occupy in person; to have in one's actual 
and physical control; to have the exclusive detention 
and control of; to have and hold as property; to have a 
just right to; to be master of; to own or be entitled to. 
Term "possess," under narcotic drug laws, means ac
tual control, care and management of the drug. Collini 
v. State, Tex.Cr.App., 487 S.W.2d 132, 135. Defendant 
"possesses" controlled substance when defendant knows 
of substance's presence, substance is immediately acces
sible, and defendant exercises "dominion or control"

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1163 
over substance. State v. Hornaday, 105 Wash.2d 120, 
713 P.2d 71, 74. 
See also Hold; Possession. 
Possessio Ip�zesh(iy)ow/. Lat. Civil law. That condi
tion of fact under which one can exercise his power over 
a corporeal thing at his pleasure, to the exclusion of all 
others. This condition of fact is called "detention," and 
it forms the substance of possession in all its varieties. 
Old English law. Possession; seisin. The detention of 
a corporeal thing by means of a physical act and mental 
intent, aided by some support of right. 
General Classification 
Pedis possessio Ipiyd�s p�zesh(iy)ow/. A foothold; an 
actual possession of real property, implying either actu
al occupancy or enclosure and use. 
Possessio bona fide Ip�zesh(iy)ow b6wn� faydiy/. Posses
sion in good faith. Possessio mala fide, possession in 
bad faith. A possessor bona fide is one who believes 
that no other person has a better right to the possession 
than himself. A possessor mala fide is one who knows 
that he is not entitled to the possession. 
Possessio bonorum Ip�zesh(iy)ow bown6r�m /. In the 
civil law, the possession of goods. More commonly 
termed "bonorum possessio" (q.v.). 
Possessio civilis Ip�zesh(iy)ow siv�l�s/. In Roman law, a 
legal possession, i.e., a possessing accompanied with the 
intention to be or to thereby become owner; and, as so 
understood, it was distinguished from "possessio natural
is, " otherwise called "n uda detentio," which was a pos
sessing without any such intention. Possessio civilis 
was the basis of usucapio or of longi temporis possessio, 
and was usually (but not necessarily) adverse possession. 
Possessio fratris Ip�zesh(iy)ow frretr�s/. The possession 
or seisin of a brother; that is, such possession of an 
estate by a brother as would entitle his sister of the 
whole blood to succeed him as heir, to the exclusion of a 
half-brother. Hence, derivatively, that doctrine of the 
older English law of descent which shut out the half
blood from the succession to estates; a doctrine which 
was abolished by the descent act, 3 & 4 Wm. IV, c. 106. 
Possessio longi temporis Ip�zesh(iy)ow 16njay temp�r�s /. 
See Usucapio. 
Possessio naturalis Ip�zesh(iy)ow nrety�reybs/. See Pos
sessio civilis, above. 
Possessio est quasi pedis positio Ip�zesh(iy)ow est 
kweysay piyd�s p�zish(iy)ow I. Possession is, as it were, 
the position of the foot. 
Possessio fratris de feodo simplici facit sororem esse 
hreredem Ip�zesh(iy)ow frretr�s diy fyuwdow simpbsay 
feys�t s�r6r�m esiy h�riyd�m/. The brother's possession 
of an estate in fee-simple makes the sister to be heir. 
Possession. Having control over a thing with the intent 
to have and to exercise such control. Oswald v. Weigel, 
219 Kan. 616, 549 P.2d 568, 569. The detention and 
control, or the manual or ideal custody, of anything 
POSSESSION 
which may be the subject of property, for one's use and 
enjoyment, either as owner or as the proprietor of a 
qualified right in it, and either held personally or by 
another who exercises it in one's place and name. Act 
or state of possessing. That condition of facts under 
which one can exercise his power over a corporeal thing 
at his pleasure to the exclusion of all other persons. 
The law, in general, recognizes two kinds of posses
sion: actual possession and constructive possession. A 
person who knowingly has direct physical control over a 
thing, at a given time, is then in actual possession of it. 
A person who, although not in actual possession, know
ingly has both the power and the intention at a given 
time to exercise dominion or control over a thing, either 
directly or through another person or persons, is then in 
constructive possession of it. The law recognizes also 
that possession may be sole or joint. If one person alone 
has actual or constructive possession of a thing, posses
sion is sole. If two or more persons share actual or 
constructive possession ·of a thing, possession is joint. 
Generally, "possession" within context of title insur
ance policies refers to open, visible and exclusive use. 
Happy Canyon Inv. Co. v. Title Ins. Co. of Minnesota, 
Colo.App., 560 P.2d 839, 842. 
See also Adverse possession; Constructive possession; 
Contentious possession; Exclusive possession; Hold; No
torious possession; Occupancy; Repossession. 
Actual possession. Exists where the thing is in the 
immediate occupancy and physical control of the party. 
Field Furniture Co. v. Community Loan Co., 257 Ky. 
825, 79 S.W.2d 211, 215. See also general definition 
above. 
Adverse possession. See Adverse possession. 
Chose in possession. A thing (subject of personal proper
ty) in actual possession, as distinguished from a "chose 
in action," which is not presently in the owner's posses
sion, but which he has a right to demand, receive, or 
recover by suit. 
Civil possession. In modern civil law and in the law of 
Louisiana, that possession which exists when a person 
ceases to reside in a house or on the land which he 
occupied, or to detain the movable which he possessed, 
but without intending to abandon the possession. It is 
the detention of a thing by virtue of a just title and 
under the conviction of possessing as owner. A fiction 
resulting from the registry of the title of the original 
owner. 
Constructive possession. Possession not actual but as
sumed to exist, where one claims to hold by virtue of 
some title, without having the actual occupancy, as, 
where the owner of a tract of land, regularly laid out, is 
in possession of a part, he is constructively in possession 
of the whole. See also general definition above. 
Corporeal possession. The continuing exercise of a claim 
to the exclusive use of a material thing. The elements 
of this possession are first, the mental attitude of the 
claimant, the intent to possess, to appropriate to oneself; 
and second, the effective realization of this attitude. All

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POSSESSION 
the authorities agree that an intent to exclude others 
must coexist with the external facts, and must be ful
fIlled in the external physical facts in order to constitute 
possession. 
Criminal law. Possession as necessary for conviction of 
offense of possession of controlled substances with intent 
to distribute may be constructive as well as actual, U. S. 
v. Craig, C.A.Tenn., 522 F.2d 29, 31; as well as joint or 
exclusive, Garvey v. State, 176 Ga.App. 268, 335 S.E.2d 
640, 647. The defendants must have had dominion and 
control over the contraband with knowledge of its pres
ence and character. U. S. v. Morando-Alvarez, C.A. 
Ariz., 520 F.2d 882, 884. See also Possess. 
Possession, as an element of offense of stolen goods, is 
not limited to actual manual control upon or about the 
person, but extends to things under one's power and 
dominion. McConnell v. State, 48 Ala.App. 523, 266 
So.2d 328, 333. 
Possession as used in indictment charging possession 
of stolen mail may mean actual possession or construc
tive possession. U. S. v. Ellison, C.A.Cal., 469 F.2d 413, 
415. 
To constitute "possession" of a concealable weapon 
under statute proscribing possession of a concealable 
weapon by a felon, it is sufficient that defendant have 
constructive possession and immediate access to the 
weapon. State v. Kelley, 12 Or.App. 496, 507 P.2d 837, 
839. 
Derivative possession. The kind of possession of one who 
is in the lawful occupation or custody of the property, 
but not under a claim of title of his own, but under a 
right derived from another, as, for example, a tenant, 
bailee, licensee, etc. 
Dispossession. The act of ousting or removing one from 
the possession of property previously held by him, which 
may be tortious and unlawful, as in the case of a forcible 
amotion, or in pursuance of law, as where a landlord 
"dispossesses" his tenant at the expiration of the term 
or for other cause by the aid of judicial process. See 
Dispossess proceedings; Ejectment; Eviction; Process 
(Summary process). 
Estate in possession. An estate whereby a present inter
est passes to and resides in the tenant, not depending on 
any subsequent circumstance or contingency. An estate 
where the tenant is in actual pernancy, or receipt of the 
rents and other advantages arising therefrom. 
Exclusive possession. See Exclusive possession. 
Hostile possession. This term, as applied to an occupant 
of real estate holding adversely, is not construed as 
implying actual emnity or ill will, but merely means 
that he claims to hold the possession in the character of 
an owner, and therefore denies all validity to claims set 
up by any and all other persons. See Adverse posses
sion. 
Naked possession. The actual occupation of real estate, 
but without any apparent or colorable right to hold and 
continue such possession; spoken of as the lowest and 
most imperfect degree of title. 
1164 
Natural possession. That by which a man detains a 
thing corporeally, as, by occupying a house, cultivating 
ground, or retaining a movable in possession; natural 
possession is also defined to be the corporeal detention 
of a thing which we possess as belonging to us, without 
any title to that possession or with a title which is void. 
Notorious possession. See Notorious possession. 
Open possession. Possession of real property is said to 
be "open" when held without concealment or attempt at 
secrecy, or without being covered up in the name of a 
third person, or otherwise attempted to be withdrawn 
from sight, but in such a manner that any person 
interested can ascertain who is actually in possession by 
proper observation and inquiry. See Adverse posses
sion. 
Peaceable possession. See Peaceable. 
Pedal possession. In establishing title by adverse posses
sion this means actual possession; that is, living upon or 
actually occupying the land, or placing improvements 
directly upon it. 
Possession, writ of Where the judgment in an action of 
ejectment is for the delivery of the land claimed, or its 
possession, this writ is used to put the plaintiff in 
possession. It is in the nature of execution. 
Quasi possession. Is to a right what possession is to a 
thing, it is the exercise or en joyment of the right, not 
necessarily the continuous exercise, but such an exercise 
as shows an intention to exercise it at any time when 
desired. 
Scrambling possession. By this term is meant a struggle 
for possession on the land itself, not such a contest as is 
waged in the courts, or possession gained by an act of 
trespass, such as building a fence. 
Unity of possession. Joint possession of two rights by 
several titles, as where a lessee of land acquires the title 
in fee-simple, which extinguishes the lease. The term 
also describes one of the essential properties of a joint 
estate, each of the tenants having the entire possession 
as well of every parcel as of the whole. 
Vacant possession. An estate which has been aban
doned, vacated, or forsaken by the tenant. The aban
donment must be complete in order to make the posses
sion vacant, and, therefore, if the tenant have goods on 
the premises it will not be so considered. 
Possession is nine-tenths of the law. This adage is not 
to be taken as true to the full extent, so as to mean that 
the person in possession can only be ousted by one 
whose title is nine times better than his, but it places in 
a strong light the legal truth that every claimant must 
succeed by the strength of his own title, and not by the 
weakness of his antag onist's. 
Possession vaut titre /p�zesh;m vow tiytr(�)/. Fr. In 
English law, as in most systems of jurisprudence, the 
fact of possession raises a prima facie title or a presump
tion of the right of property in the thing possessed. In 
other words, the possession is as good as the title (about).

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1165 
Possessio pacifica per annos 60 facit jus /p:lzesh(iy)ow 
p:lsif:lk:l p�r renows seks:ljint:l feys:lt j�s/. Peaceable 
possession for sixty years gives a right. 
Possessor. One who possesses; one who has possession. 
See also Occupant. 
Possessor bona fide /p:lzes:lr b6wn:l faydiy /. He is a 
bona fide possessor who possesses as owner by virtue of 
an act sufficient in terms to transfer property, the 
defects of which he was ignorant of. He ceases to be a 
bona fide possessor from the moment these defects are 
made known to him, or are declared to him by a suit 
instituted for the recovery of the thing by the owner. 
Possessor mala fide / p:lzes:lr mrel:l faydiy /. The posses
sor in bad faith is he who possesses as master, but who 
assumes this quality, when he well knows that he has no 
title to the thing, or that his title is vicious and defec
tive. 
Possessory. Relating to possession; founded on posses
sion; contemplating or claiming possession. 
Possessory action. See next title. 
Possessory action. An action which has for its immedi
ate object to obtain or recover the actual possession of 
the sub ject-matter; as distinguished from an action 
which merely seeks to vindicate the plaintiffs title, or 
which involves the bare right only; the latter being 
called a "petitory" action; e.g. summary process action 
to dispossess tenant for non-payment of rent. A "posses
sory action" is one brought by a possessor of immovable 
property to be maintained in his possession when his 
possession has been disturbed or to be restored to posses
sion from which he has been evicted. Mott v. Smith, 
La.App., 273 So.2d 675, 677. See also Ejectment; Evic
tion; Process (Summary process). 
An action founded on possession. Trespass for inju
ries to personal property is called a "possessory" action, 
because it lies only for a plaintiff who, at the moment of 
the injury complained of, was in actual or constructive, 
immediate, and exclusive possession. 
Admiralty practice. One which is brought to recover the 
possession of a vessel, had under a claim of title. 
Old English law. A real action which had for its object 
the regaining possession of the freehold, of which the 
demandant or his ancestors had been unjustly deprived 
by the present tenant or possessor thereof. 
Possessory claim. The title of a pre-emptor of public 
lands who has filed his declaratory statement but has 
not paid for the land. 
Possessory interest. Right to exert control over specific 
land to exclusion of others. Right to possess property by 
virtue of an interest created in the property though it 
need not be accompanied by title; e.g. right of a tenant 
for years. 
A possessory interest in land exists in a person who 
has (a) a physical relation to the land of a kind which 
gives a certain degree of physical control over the land, 
and an intent so to exercise such control as to exclude 
other members of society in general from any present 
POSSIBILITY 
occupation of the land; or (b) interests in the land which 
are substantially identical with those arising when the 
elements stated in Clause (a) exist. Restatement, Prop
erty, § 7. 
Possessory lien. A lien is possessory where the creditor 
has the right to hold possession of the specific property 
until satisfaction of the debt or performance of an obli
gation. 
Possessory warrant. The proceeding by possessory 
warrant is a summary remedy for the recovery of a 
personal chattel which has been taken by fraud, vio
lence, enticement, or seduction from the possession of 
the party complaining or which, having been in his 
recent possession, has disappeared and is believed to be 
in the possession of the party complained against. The 
purpose of the proceeding is to protect and quiet the 
possession of personalty, but only as against acts which 
are inhibited by statute. 
Possibilitas /pos:lbil:ltres/. Lat. Possibility; a possibili
ty. Possibilitas post dissolutionem executionis nunquam 
reviviscatur, a possibility will never be revived after the 
dissolution of its execution. Post executionem status, lex 
non patitur possibilitatem, after the execution of an 
estate the law does not suffer a possibility. 
Possibility. An uncertain thing which may happen. A 
contingent interest in real or personal estate. 
It is either near (or ordinary), as where an estate is 
limited to one after the death of another, or remote (or 
extraordinary), as where it is limited to a man, provided 
he marries a certain woman, and that she shall die and 
he shall marry another. 
See also Impossibili ty; Probability. 
Bare possibility. The same as a naked possibility. See 
below. 
Naked possibility. A bare chance or expectation of 
acquiring a property or succeeding to an estate in the 
future, but without any present right in or to it which 
the law would recognize as an estate or interest. 
Possibility coupled with an interest. An expectation 
recognized in law as an estate or interest, such as occurs 
in executory devises and shifting or springing uses. 
Such a possibility may be sold or assigned. 
Possibility of reverter. Future estate left in creator or in 
his successors in interest upon simultaneous creation of 
estate that will terminate automatically within a period 
of time defined by occurrence of specified event. United 
Methodist Church in West Sand Lake v. Kunz, 78 
Misc.2d 565, 357 N.Y.S.2d 637, 640. The interest which 
remains in a grantor or testator after the conveyance or 
devise of a fee simple determinable and which permits 
the grantor to be revested automatically of his estate on 
breach of the condition. 
Possibility on a possibility. A remote possibility, as if a 
remainder be limited in particular to A.'s son John, or 
Edward, it is bad if he have no son of that name, for it is 
too remote a possibility that he should not only have a 
son, but a son of that particular name.

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POSSIBLE 
Possible. Capable of existing, happening, being, becom
ing or coming to pass; feasible, not contrary to nature of 
things; neither necessitated nor precluded; free to hap
pen or not; contrasted with impossible. In another 
sense, the word denotes improbability, without exclud
ing the idea of feasibility. It is also sometimes equiva
lent to "practicable" or "reasonable," as in some cases 
where action is required to be taken "as soon as possi
ble." See also Potential. 
Post. Lat. After; as occurring in a report or a textbook, 
term is used to send the reader to a subsequent part of 
the book. Same as "infra." 
Post, n. Military establishment where body of troops is 
stationed; also place where soldier is stationed. 
Post, v. To bring to the notice or attention of the public 
by affIxing to a post or wall, or putting up in some 
public place; to display in a conspicuous manner; to 
announce, publish or advertise by use of placard. To 
place in mails. In accounting, to transfer an entry from 
an original record to a ledger. As regards posting of 
bail, see Bail. See also Posting. 
Post-act. An after-act; an act done afterwards. 
Postage. Charges for postal service. 
Postal. Relating to the mails; pertaining to the post
office. 
Postal currency. During a brief period following soon 
after the commencement of the civil war in the United 
States, when specie change was scarce, postage stamps 
were popularly used as a substitute; and the first issues 
of paper representatives of parts of a dollar, issued by 
authority of congress, were called "postal currency." 
This issue was soon merged in others of a more perma
nent character, for which the later and more appropri
ate name is "fractional currency." 
Postal order. A money order. A letter of credit fur
nished by the government, at a small charge, to facili
tate the transmission of money. 
Postal Service. The United States Postal Service re
placed the Post Office Department in 1971. It is admin
istered by a governing board whose members are ap
pointed by the President. The head of the Service is the 
Postmaster General. 
Post-conviction remedies. Federal. A federal prison
er, attacking the constitutionality of his sentence, may 
move the court which imposed the sentence to vacate, 
set aside or correct the same. This motion, under 28 
U.S.C.A. § 2255, must normally be made before the 
prisoner can seek habeas corpus relief. 
State. Almost every state has one or more post-convic
tion procedures that permit prisoners to challenge at 
least some constitutional violations. A substantial 
group of states have adopted special post-conviction stat
utes or court rules, roughly similar to section 2255 of 28 
U.S.C.A., that encompass all constitutional claims. Case 
v. Neb., 381 U.S. 336, 338, 85 S.Ct. 1486, 14 L.Ed.2d 422. 
Others, following the federal habeas corpus statute, 
have held that at least some constitutional violations 
1166 
are jurisdictional defects cognizable under a common 
law or statutory writ of habeas corpus. Ex Parte Story, 
88 Okl.Cr. 358, 203 P.2d 474. The writ of coram nobis is 
also viewed in several states as an appropriate remedy 
for presenting certain types of constitutional claims. 
People v. Cooper, 307 N.Y. 253, 120 N.E.2d 813. In 
addition, several states have adopted the Uniform Post 
Conviction Procedure Act. 
See also Habeas corpus. 
Post-date. To date an instrument as of a time later than 
that at which it is really made. The negotiability of an 
instrument is not affected by the fact that it is post-dat
ed. U.C.C. § 3-114. 
Post-dated check. A check issued before the stated date 
of the instrument. One delivered prior to its date, 
generally payable at sight or on presentation on or after 
day of its date. See Post-date. 
Post diem /powst day�m /. After the day; as, a plea of 
payment post diem, after the day when the money 
became due. 
Post disseisin /powst d�siyz�n/. In old English law, the 
name of a writ, which lies for him who, having recov
ered lands and tenements by force of a novel disseisin, is 
again disseised by a former disseisor. 
Postea /powstiy�/. In the common-law practice, a for
mal statement, indorsed on the nisi prius record, which 
gives an account of the proceedings at the trial of the 
action. 
Posted waters. Waters flowing through or lying upon 
inclosed or cultivated lands, which are preserved for the 
exclusive use of the owner or occupant by his posting 
notices (according to the statute) prohibiting all persons 
from shooting, trapping, or fishing thereon, under a 
prescribed penalty. 
Posteriora derogant prioribus /p�stiriyor� der�g�nt 
prayor�b�s/. Posterior things derogate from things pri
or. 
Posteriores /p�steriyoriyz/. Lat. This term was used 
by the Romans to denote the descendants in a direct line 
beyond the sixth degree. 
Posteriority /p�stehriyohr�tiy/. This is a word of com
parison and relation in tenure, the correlative of which 
is the word "priority." Thus, a man who held lands or 
tenements of two lords was said to hold of his more 
ancient lord by priority, and of his less ancient lord by 
posteriority. It has also a general application in law 
consistent with its etymological meaning, and, as so 
used, it is likewise opposed to priority. 
Posterity / postehr�tiy / . All the descendants of a person 
in a direct line to the remotest generation. 
Post executionem status lex non patitur possibilita
tem /powst eks�kyuwshiyown�m steyt�s leks non 
pret�t�r pos�bil�teyt�m/. After the execution of the 
estate the law suffers not a possibility. 
Post facto /powst frektow/. After the fact. See Ex post 
facto.

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1167 
Post-factum, or postfactum /powstfrekt�m/. An after
act; an act done afterwards; a post-act. 
Post-fine. In old conveyancing, a fine or sum of money, 
(otherwise called the "king's silver") formerly due on 
granting the licentia concordandi, or leave to agree, in 
levying a fine of lands. It amounted to three-twentieths 
of the supposed annual value of the land, or ten shillings 
for every five marks of land. 
Post hoc /powst hrek/. Lat. After this; after this time; 
hereafter. 
Posthumous. That which is done after the death of a 
person as the publication of a book after the death of the 
author, or the birth of a child after the death of its 
father. 
Posthumous child /posty�m�s chayld/. Child born af
ter the death of his or her father. See Unborn child . 
Posthumous work /posty�m�s w�rk/. Work on which 
original copyright has been taken out by someone to 
whom literary property passed before publication. Sha
piro, Bernstein & Co. v. Bryan, C.C.A.N.Y., 123 F.2d 697, 
699. 
Posthumus pro nato habetur /posty�m�s prow neytow 
h�biyt�r / . A posthumous child is considered as though 
born [at the parent's death]. 
Posting. In accounting, the act of transferring an origi
nal entry to a ledger. The act of mailing a document. 
Form of substituted service of process consisting of dis
playing the process in a prominent place when other 
forms of service are unavailing. 
The process of posting of a check means the usual 
procedure followed by a payor bank in determining to 
pay an item and in recording the payment including one 
or more of the following or other steps as determined by 
the bank: verification of any signature; ascertaining 
that sufficient funds are available; affixing a "paid" or 
other stamp; entering a charge or entry to a customer's 
account; correcting or reversing an entry or erroneous 
action with respect to the item. U.C.C. § 4-109. 
In connection with trespass statutes, the act of placing 
or afflXing signs on private property in a manner to give 
notice of the trespass. E.g. La.R.S. 14:63.5 
Postliminium /powstl�miniy�m /. Lat. In the civil law, 
a doctrine or fiction of the law by which the restoration 
of a person to any status or right formerly possessed by 
him was considered as relating back to the time of his 
original loss or deprivation; particularly in the case of 
one who, having been taken prisoner in war, and having 
escaped and returned to Rome, was regarded, by the aid 
of this fiction, as having never been abroad, and was 
thereby reinstated in all his rights. 
The term is also applied, in international law, to the 
recapture of property taken by an enemy, and its conse
quent restoration to its original owner. 
Postliminium fingit eum qui captos est in civitate 
semper fuisse /powstl�miniy�m finj�t iy�m kway 
kreptows est in siv�teytiy semp�r fyuwisiy /. Postliminy 
POST-OBIT 
feigns that he who has been captured has never left the 
state. 
Postliminy /powstlim�niy /. See Postliminium. 
Post litem motam /powst layt�m mowt�m /. Lat. After 
suit moved or commenced. Depositions in relation to 
the subject of a suit, made after litigation had com
menced, were formerly sometimes so termed. 
Postman. A letter-carrier; mailman. In England, a 
senior barrister in the court of exchequer, who had 
precedence in motions, so called from the place where he 
sat; such ceased to exist when the court was absorbed 
into the Queen's Bench Division of the High Court in 
1873. 
Postmark. A stamp or mark put on letters or other 
mailable matter received at the post-office for trans
mission through the mails. 
Postmaster. An officer of the United States Postal 
Service appointed to take charge of a local post-office 
and transact the business of receiving and forwarding 
the mails at that point, and such other business as is 
committed to him under the postal laws. 
Postmaster general. The head of the U.S. Postal Ser
vice. 
Post-mortem /powstmort �m /. After death; pertaining 
to matters occurring after death. A term generally 
applied to an autopsy or examination of a dead body, to 
ascertain the cause of death, or to the inquisition for 
that purpose by the coroner. 
Postnati /powstneyta y/. Those born after. See Post 
natus. 
Post natus /powst neyt�s/. Born afterwards. A term 
once used in private international law to designate a 
person who was born after some historic event (such as 
the American Revolution or the act of union between 
England and Scotland), and whose rights or status will 
be governed or affected by the question of his birth 
before or after such event. 
Post-notes /powstnowts /. A species of bank-notes pay
able at a future time, and not on demand. 
Post-nuptial /powstn�psh�l/. After marriage. 
Post-nuptial agreement. Agreements or settlements 
made after marriage between spouses still married to 
determine the rights of each in the others' property in 
the event of divorce or death. They take the form of 
separation agreements, property settlements in contem
plation of a separation or divorce, or property settle
ments where there is no intention of the parties to 
separate. Friedlander v. Friedlander, 80 Wash.2d 293, 
494 P.2d 208, 212. Compare Pre-nuptial agreement; Sep
aration agreement. 
Post-nuptial settlement. See Post-nuptial agreement. 
Post-obit. Lat. An agreement by which the obligor 
borrows a certain sum of money and promises to pay a 
larger sum, exceeding the lawful rate of interest, upon 
the death of a person from whom he has some expecta
tion, if the obligor be then living.

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POST·OBIT BOND 
Post-obit bond. A bond given by an expectant, to be
come due on the death of a person from whom he will 
have property. A bond or agreement given by a borrow
er of money, by which he undertakes to pay a larger 
sum, exceeding the legal rate of interest, on or after the 
death of a person from whom he has expectations, in 
case of surviving him. Such are common in England. 
Postpone. To put off; defer; delay; continue; ad journ; 
as when a hearing is postponed. Also to place after; to 
set below something else; as when an earlier lien is for 
some reason postponed to a later lien. The term carries 
with it the idea of deferring the doing of something or 
the taking effect of something until a future or later 
time. Gartner v. Roth, 26 CaL2d 184, 157 P.2d 361, 363. 
Post prolem suscitatam /powst pr6wl�m s;)s�teyt�m/. 
After issue born (raised). 
Post-terminal sittings. Sittings after term. See Sitti ng. 
Post terminum /powst t;}rm�n �m /. After term, or post
term. The return of a writ not only after the day 
assigned for its return, but after the term also, for which 
a fee was due. 
Post-trial discovery. Under rules procedure, a party 
may take depositions pending appeal to perpetuate the 
testimony of witness for use in the event of further 
proceedings in the trial court. Fed.R.Civil P. 27(b). 
Post-trial motions. Generic term to describe those mo
tions which are permitted after trial such as motion for 
new trial (Fed.R.Civil P. 59), and motion for relief from 
judgment (Rule 60). 
Post-trial remedies. See Post-conviction remedies; Post
trial motions. 
Postulatio /posh�leysh(iy)ow/. Lat. In old English ec
clesiastical law, a species of petition for transfer of a 
bishop. 
In Roman law, a request or petition. This was the 
name of the first step in a criminal prosecution, corre
sponding somewhat to "swearing out a warrant" in 
modern criminal law. The accuser appeared before the 
prretor, and stated his desire to institute criminal pro
ceedings against a designated person, and prayed the 
authority of the magistrate therefor. 
Postulatio actionis /pos�leysh(iy)ow rekshiy6wn�s/. In 
Roman law, the demand of an action; the request made 
to the prretor by an actor or plaintiff for an action 
or formula of suit; corresponding with the application 
for a writ in old English practice. Or, as otherwise 
explained, the actor's asking of leave to institute his 
action, on appearance of the parties before the prretor. 
Pot. Jargon name for marihuana. 
Potable. Suitable for drinking; drinkable. 
Pot-de-vin /powd(�)vren/. In French law, a sum of mon
ey frequently paid, at the moment of entering into a 
contract, beyond the price agreed upon. It differs from 
arrha, in this: that it is no part of the price of the thing 
sold, and that the person who has received it cannot, by 
1168 
returning double the amount, or the other party by 
losing what he has paid, rescind the contract. 
Potentate /p6wt�nteyt/. A person who possesses great 
power or sway; a prince, sovereign, or monarch. 
By the naturalization law of the United States, an 
alien is required to renounce all allegiance to any for
eign "prince, potentate, or sovereign whatever." 
Potentia /p�tensh(iy)�/. Lat. Possibility; power. 
Potentia debet sequi justitiam, non antecedere 
/p�tensh(iy)� deb�t sekway j;)stish(iy)�m, non 
rent�siyd�riy/. Power ought to follow justice, not go 
before it. 
Potentia est duplex, remota et propinqua; et poten
tia remotissima et vana est qure nunquam venit in 
actum /p�tensh(iy)� est d(y)uwpleks, r�m6wt� et 
pr�pi1Jkw�; et p�tensh(iy)� r�mowtis�m� et veyn� est 
kwiy n;}1Jkw�m viyn�t in rekt�m/. Possibility is of two 
kinds, remote and near; that which never comes into 
action is a power the most remote and vain. 
Potentia inutilis frustra est /p�tensh(iy)� inyuwt�l�s 
fr;}str� est!. Useless power is to no purpose. 
Potential. Existing in possibility but not in act. Natu
rally and probably expected to come into existence at 
some future time, though not now existing; for example, 
the future product of grain or trees already planted, or 
the successive future installments or payments on a 
contract or engagement already made. Things having a 
"potential existence" may be the subject of mortgage, 
assignment, or sale. See Possible. 
Potentia non est nisi ad bonum /p�tensh(iy)� non est 
naysay eM b6wn�m /. Power is not conferred but for the 
public good. 
Potentia propinqua /p�tensh(iy)� pr�pi1Jkw�/. Common 
possibility. See Possibility. 
Potestas /p�testres/. Lat. In the civil law, power; au
thority, domination; empire. Imperium, or the jurisdic
tion of magistrates. The power of the father over his 
children, patria potestas. The authority of masters over 
their slaves. 
Potestas stricte interpretatur /p�testres striktiy int;)r
pr�teyt�r / . A power is strictly interpreted. 
Potestas suprema seipsum dissolvere potest, ligare 
non potest /p�testres s�priym� siyips�m d�z6Iv�riy 
p6wt�st l�geriy non p6wt�st!. Supreme power can dis
solve [unloose] but cannot bind itself. 
Potest quis renunciare pro se et suis juri quod pro se 
introductum est /p6wt�st kwis r�n�nshiyeriy prow siy 
et syUw�s juray kwod p�r siy intr�d;}kt�m est/. One 
may relinquish for himself and his heirs a right which 
was introduced for his own benefit. 
Potior est conditio defendentis /p6wsh(iy)�r est 
k�ndish(iy)ow d�fenden�s/. Better is the condition of 
the defendant [than that of the plaintiffJ.

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1
I.
1169
Potior est conditio possidentis /powsh(iY)::lr est
k::lndish(iy)ow p::lsidiyent::ls/. Better is the condition of
the possessor.
Potomac mortgages. "Deeds of trust", sometimes
called "Potomac mortgag es", are utilized interchange
ably with mortgages in the Maryland counties which are
adjacent to the District of Columbia. Tolzman v.
Gwynn, 267 Md. 96, 296 A.2d 594, 595.
Pound. A place, inclosed by public authority, for the
detention of stray animals; e.g. dog pound. Place where
impounded property is held until redeemed.
A pound-overt is said to be one that is open overhead;
a pound-covert is one that is closed, or covered over, such
as a stable or other building.
A measure of weight, equal to 16 avoirdupois ounces
or 7,000 grains; the pound troy 12 ounces or 5,760
grains.
Basic monetary unit of United Kingdom; also called
pound sterling.
Poundage fees. A fee awarded to the sheriff in the
nature of a percentage commission upon monies recov
ered pursuant to a levy or execution or attachment.
Southern Industries, Inc. v. Jeremias, 64 A.D.2d 178, 411
N.Y.S.2d 945, 951. The money which an owner of
animals (or other property) impounded must pay to
obtain their release.
In old English law, a subsidy to the value of twelve
pence in the pound, granted to the king, of all manner of
merchandise of every merchant, as well denizen as
alien, either exported or imported.
Pound breach. The common law offense of breaking a
pound, for the purpose of taking out the cattle or goods
impounded.
Pour acquit. Fr. In French law, the formula which a
creditor prefixes to his signature when he gives a re
ceipt.
Pour appuyer. For the support of, or "in the support
of."
Pour appuyer nouvelle demande. In support of his
new action.
Pour autrui. For others.
Pour compte de qui il appartient. Fr. For account of
whom it may concern.
Pour faire proclaimer. L. Fr. An ancient writ ad
dressed to the mayor or bailiff of a city or town, requir
ing him to make proclamation concerning nuisances,
etc.
Pour-over. Provision in a will which directs the distri" bution of property into a trust. Also, a similar provision
in a trust which directs property into a will.
Pour-over trust. See Pour-over; Trust.
POWER
Pour-over will. See Pour-over.
Pourparler. Fr. In French law, the preliminary negoti
ations or bargainings which lead to a contract between
the parties. As in English law, these form no part of
the contract when completed. The term is also used in
this sense in international law and the practice of diplo
macy.
Pourparty / purpartiy / p�ro / . To make pourparty is to
divide and sever the lands that fall to parceners, which,
before partition, they held jointly and pro indiviso.
Pourpresture / purprestY::lr / p�ro / . In old English law,
an inclosure. Anything done to the nuisance or hurt of
the public demesnes, or the highways, etc., by inclosure
or building, endeavoring to make that private which
ought to be pUblic. The difference between a pourpres
ture and a public nuisance is that pourpresture is an
invasion of the jus privatum of the crown; but where
the jus publicum is violated it is a nuisance.
Pour seisir terres /pur siyz::lr tehriyz/. L. Fr. An
ancient writ whereby the crown seized the land which
the wife of its deceased tenant, who held in capite, had
for her dower, if she married without leave.
Poursuivant /p�rsw::lv::lnt/. The king's messenger; a
royal or state messenger. In the heralds' college, a
functionary of lower rank than a herald, but discharging
similar duties, called also "poursuivant at arms"; origi
nally attendants of the king during battle.
Pourveyance /purveY::lns/p::lro /. In old English law, the
providing corn, fuel, victuals, and other necessaries for
the king's house.
Pourveyor, or purveyor /p::lrveY::lr/. A buyer; one who
provided for the royal household.
Poverty. The state or condition of being poor. See also
Indigent.
Poverty affidavit. An affidavit, made and filed by per
son seeking public assistance, appointment of counsel,
waiver of court fees, or other free services or benefits,
that he or she is in fact, financially unable to pay for
such.
Document signed under oath which may be the basis
of a court's permitting one to proceed in forma pauperis.
See e.g. 28 U.S.C.A. § 1915; Fed.R.App.P., Form 4.
Leave to proceed on appeal in forma pauperis from
district court to court of appeals is governed by Fed.R.
App.P. 24.
See also Pauper's oath.
Power. The right, ability, authority, or faculty of doing
something. Authority to do any act which the grantor
might himself lawfully perform. Porter v. Household
Finance Corp. of Columbus, D.C.Ohio, 385 F.Supp. 336,
341.
A power is an ability on the part of a person to
produce a change in a given legal relation by doing or
not doing a given act. Restatement, Second, Agency,
§ 6; Restatement, Property, § 3.
In a restricted sense a "power" is a liberty or authori
ty reserved by, or limited to, a person to dispose of real

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POWER 
or personal property, for his own benefit, or benefit of 
others, or enabling one person to dispose of interest 
which is vested in another. 
See also Authority; Beneficial power; Capacity; Concur
rent power; Control; Delegation of powers; Donee of 
power; Enume rated powers; Executive powers; Govern
mental powers; Judicial power; Legislative power; Police 
power; Right. 
Appendant or appurtenant powers. Those existing 
where the donee of the power has an estate in the land 
and the power is to take effect wholly or in part out of 
that estate, and the estate created by its exercise affects 
the estate and interest of the donee of the power. 
Collateral powers. Those in which the donee of the 
power has no interest or estate in the land which is the 
subject of the power. Also called naked powers. 
Constitutional powers. The right to take action in re
spect to a particular subject-matter or class of matters, 
involving more or less of discretion, granted by the 
constitution to the several departments or branches of 
the government, or reserved to the people. Powers in 
this sense are generally classified as legislative, execu
tive, and judicial (q.v.); and further classified as enumer
ated (or express), implied, inherent, resulting, or sover
eign powers. 
Commerce powers. Power of Congress to regulate com
merce with foreign nations, and among the several 
states. Art. I, § 8, Cl. 3, U.S .Const. 
Enforcement powers. The 13th, 14th, 15th, 19th, 23rd, 
24th, and 26th Amendments each contain a section 
providing, in these or equivalent words, that "Congress 
shall have the power to enforce by appropriate legisla
tion, the provisions of this article." 
Enumerated or express powers. Powers expressly pro
vided for in Constitution; e.g., U.S .Const. Art. I, § 8. 
Implied powers. Such as are necessary to make avail
able and carry into effect those powers which are 
expressly granted or conferred, and which must there
fore be presumed to have been within the intention of 
the constitutional or legislative grant. See Enforce
ment powers, above; also Necessary and proper powers, 
below. See also Penumbra doctrine. 
Inherent powers. Powers which necessarily inhere in 
the government by reason of its role as a government; 
e.g. conducting of foreign affairs. United States v. 
Curtiss-Wright Export Corp., 299 U.S. 304, 315, 316, 57 
S.Ct. 216, 81 L.Ed. 255. See also Supremacy clause. 
Necessary and proper powers. Art. I, § 8, Cl. 18 gives 
Congress power "To make all laws which shall be 
necessary and proper for carrying into execution the 
foregoing powers (i.e. those enumerated in clauses 1-
17), and all other powers vested by this Constitution in 
the Government of the United States, or in any Depart
ment or Officer thereof." See also Penumbra doctrine. 
Preemptive powers. See Preemption;" Supremacy clause. 
Reserved or residual state powers. The powers not 
delegated to the United States by the Constitution, nor 
1170 
prohibited by it to the States, are reserved to the States 
respectively, or to the people. 10th Amend., U.S .Const. 
Resulting powers. Those powers which "result from 
the whole mass of the powers of the National Govern
ment and from the nature of political society." Ameri
can Ins. Co. v. Canter, 26 U.S. (1 Pet.) 516, 7 L.Ed. 242. 
Spending power. Power of Congress "to pay the debts 
and provide for the common defense and general wel
fare of the United States ." Art. I, § 8, Cl. 1, U.S.C onst. 
Taxing power. Power of Congress "to lay and collect 
taxes, duties, imports and excises." Art. I, § 8, Cl. l. 
Corporate powers. The right or capacity to act or be 
acted upon in a particular manner or in respect to a 
particular subject; as, the power to have a corporate 
seal, to sue and be sued, to make by-laws, to carry on a 
particular business or construct a given work. 
General and special powers. A power is general when it 
authorizes the alienation in fee, by means of a convey
ance, will, or charge, of the lands embraced in the power 
to any alienee whatsoever. It is special (1) when the 
persons or class of persons to whom the disposition of 
the lands under the power is to be made are designated, 
or (2) when the power authorizes the alienation, by 
means of a conveyance, will, or charge, of a particular 
estate or interest less than a fee. 
General and special powers in trust. A general power is 
in trust when any person or class of persons other than 
the grantee of such power is designated as entitled to 
the proceeds or any portion of the proceeds or other 
benefits to result from the alienation. A special power 
is in trust (1) when the disposition or charge which it 
authorizes is limited to be made to any person or class of 
persons other than the holder of the power, or (2) when 
any person or class of persons other than the holder is 
designated as entitled to any benefit from the disposi
tion or charge authorized by the power. 
Implied powers. Powers not granted in express terms 
but existing because they are necessary and proper to 
carry into effect some expressly granted power. See also 
Constitutional powers, above. 
Inherent powers. Those which are enjoyed by the pos
sessors of natural right, without having been received 
from another. Such are the powers of a people to 
establish a form of government, of a father to control his 
children. Some of these are regulated and restricted in 
their exercise by law, but are not technically considered 
in the law as powers. 
Inherent agency power is a term used in the Restate
ment of Agency to indicate the power of an agent which 
is derived not from authority, apparent authority or 
estoppel, but solely from the agency relation and exists 
for the protection of persons harmed by or dealing with 
a servant or other agent. Restatement, Second, Agency 
§8 A. 
Ministerial powers. See Min isterial. 
Naked power. One which is simply collateral and with
out interest in the donee, which arises when, to a mere 
stranger, authority is given of disposing of an interest,

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1171 
in which he had not before, nor has by the instrument 
creating the power, any estate whatsoever. 
Power of revocation. A power which is to divest or 
abridge an existing estate. 
Powers in gross. Those which give a donee of the power, 
who has an estate in the land, authority to create such 
estates only as will not attach on the interest limited to 
him or take effect out of his interest, but will take effect 
after donee's estate has terminated. 
Real property law. An authority to do some act in 
relation to real property, or to the creation or revocation 
of an estate therein, or a charge thereon, which the 
owner granting or reserving such power might himself 
perform for any purpose. An authority expressly re
served to a grantor, or expressly given to another, to be 
exercised over lands, etc., granted or conveyed at the 
time of the creation of such power. See Power of alien
ation. 
For other compound terms, such as Power of appoint
ment; Power of sale; etc., see the following titles. 
Power coupled with an interest. A right or power to 
do some act, together with an interest in the subject
matter on which the power is to be exercised. It is 
distinguished from a naked power, which is a mere 
authority to act, not accompanied by any interest of the 
donee in the subject-matter of the power. Arcweld Mfg. 
Co. v. Burney, 12 Wash.2d 212, 121 P.2d 350, 355. 
Power of acceptance. Capacity of offeree, upon accept
ance of terms of offer, to create binding contract. 
Power of alienation. The power to sell, transfer, assign 
or otherwise dispose of property. 
Power of appointment. A power or authority conferred 
by one person by deed or will upon another (called the 
"donee") to appoint, that is, to select and nominate, the 
person or persons who are to receive and enjoy an estate 
or an income therefrom or from a fund, after the testa
tor's death, or the donee's death, or after the termi
nation of an existing right or interest. 
A power of appointment may be exercisable by deed or 
by will depending upon the terms established by the 
donor of the power, and is defined, generally, as power 
or authority given to person to dispose of property, or 
interest therein, which is vested in person other than 
donee of the power. In re Conroy's Estate, 67 C.A.3d 
734, 136 Cal.Rptr. 807, 809. 
Powers are either: Collateral, which are given to 
strangers; i.e., to persons who have neither a present 
nor future estate or interest in the land. These are also 
called simply "collateral," or powers not coupled with an 
interest, or powers not being interests. Or they are 
powers relating to the land. These are called "appen
dant" or "appurtenant, " because they strictly depend 
upon the estate limited to the person to whom they are 
given. Thus, where an estate for life is limited to a 
man, with a power to grant leases in possession, a lease 
granted under the power may operate wholly out of the 
life-estate of the party executing it, and must in every 
case have its operation out of his estate during his life. 
POWER OF ATTORNEY 
Such an estate must be created, which will attach on an 
interest actually vested in himself. Or they are called 
"in gross, " if given to a person who had an interest in 
the estate at the execution of the deed creating the 
power, or to whom an estate is given by the deed, but 
which enabled him to create such estates only as will 
not attach on the interest limited to him. Of necessity, 
therefore, where a man seised in fee settles his estate on 
others, reserving to himself only a particular power, the 
power is in gross. 
An important distinction is established between gener
al and particular powers. By a general power we under
stand a right to appoint to whomsoever the donee pleas
es including himself or his estate. By a particular 
power it is meant that the donee is restricted to some 
objects designated in the deed or will creating the power. 
A general power is beneficial when no person other 
than the grantee has, by the terms of its creation, any 
interest in its execution. A general power is in trust 
when any person or class of persons, other than the 
grantee of such power, is designated as entitled to the 
proceeds, or any portion of the proceeds, or other bene
fits to result from the alienation. 
When a power of appointment among a class requires 
that each shall have a share, it is called a "distributive" 
or "non-exclusive" power; when it authorizes, but does 
not direct, a selection of one or more to the exclusion of 
the others, it is called an "exclusive" power, and is also 
distributive; when it gives the power of appointing to a 
certain number of the class, but not to all, it is exclusive 
only, and not distributive. A power authorizing the 
donee either to give the whole to one of a class or to give 
it equally among such of them as he may select (but not 
to give one a larger share than the others) is called a 
"mixed" power. 
For the estate tax and gift tax effects of powers of 
appointment, see I.R.C. §§ 2041 and 2514. 
See also General power of appOintment; Ill usory appoint
ment; Limited power of appointment. 
Special power of appointment. A power of appointment 
that cannot be exercised in favor of the donee or his or 
her estate but may be exercised only in favor of identifi
able person(s) other than the donee. See also Limited 
power of appointment. 
Testamentary power. A power of appointment that can 
only be exercised through a will (i.e., upon the death of 
the holder). 
Power of attorney. An instrument in writing whereby 
one person, as principal, appoints another as his agent 
and confers authority to perform certain specified acts 
or kinds of acts on behalf of principal. Complaint of 
Bankers Trust Co., C.A.Pa., 752 F.2d 874, 885. An 
instrument authorizing another to act as one's agent or 
attorney. The agent is attorney in fact and his power is 
revoked on the death of the principal by operation of 
law. Such power may be either general (full) or special 
(limited). 
Durable power of attorney. Exists when person executes 
a power of attorney which will become or remain effec-

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POWER OF ATTORNEY 
tive in the event he or she should later become disabled. 
Uniform Probate Code § 5-501. 
Power of disposition. Every power of disposition is 
deemed absolute, by means of which the donee of such 
power is enabled in his life-time to dispose of the entire 
fee for his own benefit; and, where a general and 
beneficial power to devise the inheritance is given to a 
tenant for life or years, it is absolute, within the mean
ing of the statutes of some of the states. See Power of 
appointment. 
Power of sale. A clause commonly inserted in mortgag
es and deeds of trust, giving the mortgagee (or trustee) 
the right and power, on default in the payment of the 
debt secured, to advertise and sell the mortgaged proper
ty at public auction (but without resorting to a court for 
authority), satisfy the creditor out of the net proceeds, 
convey by deed to the purchaser, return the surplus, if 
any, to the mortgagor, and thereby divest the latter's 
estate entirely and without any subsequent right of 
redemption. 
Power of termination. The interest left in the grantor 
or testator after the conveyance or devise of a fee simple 
on condition subsequent or conditional fee, e.g. "to A on 
condition that the property be used for church pur
poses." When such property is no longer used for 
church purposes, the grantor may enter or commence an 
action for entry based on the breach of the condition. 
However, he is not automatically revested. He must 
enter or commence an action. 
P.P. An abbreviation for "propria persona," in his prop
er person, in his own person, and for per procuration 
(q.v.). 
P.P.I. Policy proof of interest, i.e., in the event of loss, 
the insurance policy is to be deemed sufficient proof of 
interest. 
Practicable, practicably. Practicable is that which 
may be done, practiced, or accomplished; that which is 
performable, feasible, possible; and the adverb practica
bly means in a practicable manner. Within liability 
policy providing that when accident occurred, written 
notice should be given by or on behalf of insured to 
insurer or any of its authorized agents as soon as practi
cable, "practicable" was held to mean feasible in the 
circumstances. Frey v. Security Ins. Co. of Hartford, 
D.C.Pa., 331 F.Supp. 140, 143. 
Practice. Repeated or customary action; habitual per
formance; a succession of acts of similar kind; custom; 
usage. Application of science to the wants of men. The 
exercise of any profession. 
The form or mode or proceeding in courts of justice for 
the enforcement of rights or the redress of wrongs, as 
distinguished from the substantive law which gives the 
right or denounces the wrong. The form, manner, or 
order of instituting and conducting an action or other 
judicial proceeding, through its successive stages to its 
end, in accordance with the rules and principles laid 
down by law or by the regulations and precedents of the 
courts. The term applies as well to the conduct of 
1172 
criminal as to civil actions, to proceedings in equity as 
well as at law, and to the defense as well as the prosecu
tion of any proceeding. Wells Lamont Corp. v. Bowles, 
Em.App., 149 F.2d 364, 366. 
Practice of law. The rendition of services requiring the 
knowledge and the application of legal principles and 
technique to serve the interests of another with his 
consent. R.J. Edwards, Inc. v. R.L. Hert, Okl., 504 P.2d 
407, 416. It is not limited to appearing in court, or 
advising and performing of services in the conduct of the 
various shapes of litigation, but embraces the prepara
tion of pleadings, and other papers incident to actions 
and special proceedings, and in larger sense includes 
legal advice and counsel and preparation of legal instru
ments by which legal rights and obligations are estab
lished. Washington State Bar Ass'n v. Great Western 
Union Federal Sav. and Loan Ass'n, 91 Wash.2d 48, 586 
P.2d 870. A person engages in the "practice of law" by 
maintaining an office where he is held out to be an 
attorney, using a letterhead describing himself as an 
attorney, counseling clients in legal matters, negotiating 
with opposing counsel about pending litigation, and fix
ing and collecting fees for services rendered by his 
associate. State v. Schumacher, 214 Kan. 1, 519 P.2d 
1116, 1127. 
Practice of medicine. The treatment of injuries as well 
as the discovery of the cause and nature of disease, and 
the administration of remedies, or the prescribing of 
treatment therefor. 
Practice acts. Statutes that govern practice and proce
dure in courts (e.g., Title 28, United States Code). Such 
acts are frequently supplemented with court rules (e.g., 
Fed.Rules of Civil Procedure). 
Practice court. In English law, a court attached to the 
court of king's bench, which heard and determined com
mon matters of business and ordinary motions for writs 
of mandamus, prohibition, etc. It was usually called the 
"bail court." It was held by one of the puisne justices of 
the king's bench. See also Moot court. 
Practices. A succession of acts of a similar kind or in a 
like employment. 
Practitioner. He who is engaged in the exercise or 
employment of any art or profession as contrasted with 
one who teaches such. See Practice. 
Prreceptores /priyseptoriyz/. Lat. In old English law, 
masters. The chief clerks in chancery were formerly so 
called, because they had the direction of making out 
remedial writs. 
Prreceptories /pr�sept�riyz/. In feudal law, a kind of 
benefices, so called because they were possessed by the 
more eminent templars whom the chief master by his 
authority created and called "Prc:eceptores Templi. " 
Prrecipe /pres�piy/. Lat. In practice, an original writ 
drawn up in the alternative, commanding the defendant 
to do the thing required, or show the reason why he had 
not done it. It includes an order to the clerk of court to 
issue an execution on a judgment already rendered.

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1173 
Yazoo & M.V.R. Co. v. Clarksdale, 257 U.S: 10, 42 S.Ct. 
27, 66 L.Ed. 104. 
A paper upon which the particulars of a writ are 
written. It is filed in the office out of which the re
quired writ is to issue. Also an order, written out and 
signed, addressed to the clerk of a court, and requesting 
him to issue a particular writ. 
Prrecipe quod reddat /pres;}piy kwod red;}t/. Command 
that he render. A writ directing the defendant to re
store the possession of land, employed at the beginning 
of a common recovery. 
Prrecipe, tenant to the /ten;}nt t;} a;} pres;}piy /. A 
person having an estate of freehold in possession, 
against whom the prrecipe was brought by a tenant in 
tail, seeking to bar his estate by a recovery. 
Prrecipitium /pres;}pish(iy);}m/. The punishment of cast
ing headlong from some high place. 
Prreco /priykow/. Lat. In Roman law, a herald or crier. 
Prrecognita /priyk6gn;}t;}/. Things to be previously 
known in order to the understanding of something 
which follows. 
Prredia /priyd(i)y;}/. In the civil law, lands; estates; 
tenements; properties. See Prredium. 
Prredia bellica /priyd(i)y;} bel;}k;}/� Booty. Property 
seized in war. 
Prredial /priydiy;}l/. That which arises immediately 
from the ground: as, grain of all sorts, hay, wood, fruits, 
herbs, and the like. 
Prredial servitude /priydiy;}l s�rv;}t(y)uwd/. A right 
which is granted for the advantage of one piece of land 
over another, and which may be exercised by every 
possessor of the land entitled against every possessor of 
the servient land. It always presupposes two pieces of 
land (prredia) belonging to different proprietors; one 
burdened with the servitude, called "prredium serviens, " 
and one for the advantage of which the servitude is 
conferred, called "prredium dominans. " 
Prredial tithes /priydiy;}l tayoz/. Such as arise merely 
and immediately from the ground; as grain of all sorts, 
hops, hay, wood, fruit, herbs. 
Prredia stipendiaria /priyd(i)y;} staypendiyeriy;}/. In 
the civil law, provincial lands belonging to the people. 
Prredia tributaria /priydiy;} triby;}teriy;}/. In the civil 
law, provincial lands belonging to the emperor. 
Prredictus /pr;}dikt;}s/. Lat. Aforesaid. In civil law 
pleading, of the three words, "idem, " "prredictus, " and 
"prrefatus, " "idem" was most usually applied to plain
tiffs or demandants; "prredictus," to defendants or ten
ants, places, towns, or lands; and "prrefatus, " to persons 
named, not being actors or parties. These words may all 
be rendered in English by "said" or "aforesaid." 
Prredium /priydiy;}m/. Lat. In the civil law, land; an 
estate; a tenement; a piece of landed property. 
PRreMUNIRE 
Prredium dominans /priydiy;}m d6m;}nrenz/. In the civ
il law, the name given to an estate to which a servitude 
is due; the dominant tenement. 
Prredium serviens /priydiy;}m s�rviyenz/. In the civil 
law, the name of an estate which suffers a servitude or 
easement to another estate; the servient tenement. 
Prredium servit prredio /priydiy;}m s�rv;}t priydiyow/. 
Land is under servitude to land [i.e., servitudes are not 
personal rights, but attach to the dominant tenement]. 
Prredium urbanum /priydiy;}m �rbeyn;}m/. In the civil 
law, a building or edifice intended for the habitation and 
use of man, whether built in cities or in the country. 
Prredo /priydow/. Lat. In Roman law, a robber. 
Prrefatus /pr;}feyt;}s/. Lat. Aforesaid. Sometimes ab
breviated to "prrefat, " and "p. fat. " 
Prrefecturre /priyfekt(y)uriy/. In Roman law, conquered 
towns, governed by an officer called a "prefect," who 
was chosen in some instances by the people, in others by 
the prretors. 
Prrefectus vigilum /pr;}fekt;}s v;}jiliy;}m/. Lat. In Ro
man law, the chief officer of the night watch. His 
jurisdiction extended to certain offenses affecting the 
public peace, and even to larcenies; but he could inflict 
only slight punishments. 
Prrefectus villre /pr;}fekt;}s viliy/. The mayor of a town. 
Prrefine /priyfayn/. The fee paid on suing out the writ 
of covenant, on levying fines, before the fine was passed. 
Prrejuramentum /priyjur;}ment;}m/. In old English law, 
a preparatory oath. 
Prrelegatum /priyl;}geyt;}m/. Lat. In Roman law, a 
payment in advance of the whole or part of the share 
which a given heir would be entitled to receive out of an 
inheritance; corresponding generally to "advancement" 
in English and American law. 
Prremium /priymiy;}m/. Lat. Reward; compensation. 
Prremium assecurationis, compensation for insurance; 
premium of insurance. 
Prremium emancipationis /priymiy;}m ;}mrens;}pey
shiy6wn;}s/. In Roman law, a reward or compensation 
anciently allowed to a father on emancipating his child, 
consisting of one-third of the child's separate and indi
vidual property, not derived from the father himself. 
Prremium pudicitire /priymiy;}m pyuwd;}sishiyiy/. The 
price of chastity; or compensation for loss of chastity. 
A term applied to bonds and other engagements given 
for the benefit of a seduced female. Sometimes called 
"prremium pudoris. " 
Prremunire /priymyuwnayriy/. In old English law, an 
offense against the king and his government, though not 
subject to capital punishment. So called from the words 
of the writ which issued preparatory to the prosecution: 
"Prremunire facias A. B. quod sit coram ' nobis," etc.; 
"Cause A. B. to be forewarned that he appear before us 
to answer the contempt with which he stands charged." 
The statutes establishing this offense, the first of which'

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PRreMUNIRE 
was made in the thirty-first year of the reign of Edward 
I, were framed to encounter the perceived papal usurpa
tions in England; the original meaning of the offense 
called ']memunire" being the introduction of a foreign 
power into the kingdom, and creating imperium in im
perio, by paying that obedience to papal process which 
constitutionally belonged to the king alone. The penal
ties of pnemunire were afterwards applied to other hei
nous offenses. 4 Bl.Comm. 103-117. 
Prrenomen Ipriynowm :m /. Lat. Forename, or first 
name. The first of the three names by which the 
Romans were commonly distinguished. It marked the 
individual, and was commonly written with one letter; 
as "A." for "Aulus;" "C." for "Caius," etc. 
Prrepositus Ipriypoz�t�s/. In old English law, an officer 
next in authority to the alderman of a hundred, called 
"prrepositus regius;" or a steward or bailiff of an estate, 
answering to the "wicnere. " 
Also the person from whom descents are traced under 
the old canons. 
Prrepositus villre I priypoz�t�s viliy I. A constable of a 
town, or petty constable. 
Prrepropera consilia raro sunt prospera Ipriyprowp�r� 
k�nsil(i)y� rerow s;}nt prosp�r�/. Hasty counsels are 
rarely prosperous. 
Prrescriptio Ipr�skripsh(iy)ow/. Lat. In the civil law, 
that mode of acquisition whereby one becomes proprie
tor of a thing on the ground that he has for a long time 
possessed it as his own; prescription. It was anciently 
distinguished from "usucapio" (q.v.), but was blended 
with it by Justinian. 
Prrescriptio est titulus ex usu et tempore substantiam 
capiens ab auctoritate legis Ipr�skripsh(iy)ow est 
tit(y)�bs eks yuws(y)uw et temp�riy s�bstrenshiy�m 
krepiyenz reb oktohr�teydiy liyj�s/. Prescription is a 
title by authority of law, deriving its force from use and 
time. 
Prrescriptio et executio non pertinent ad valorem 
contractus, set ad tempus et modum actionis insti· 
tuendre Ipr�skripsh(iy)ow ed eks�kyuwsh(iy)ow non 
p�rt�n�nt red v�lor�m k�ntrrekt�s, sed red temp�s et 
mowd�m rekshiyown�s instityuwendiy/. Prescription 
and execution do not affect the validity of the contract, 
but the time and manner of bringing an action. 
Prrescriptiones Ipr�skripshiyowniyz/. Lat. In Roman 
law, forms of words (of a qualifying character) inserted 
in the formulre in which the claims in actions were 
expressed; and, as they occupied an early place in the 
form u lre, they were called by this name, i.e., qualifica
tions preceding the claim. For example, in an action to 
recover the arrears of an annuity, the claim was preced
ed by the words "so far as the annuity is due and 
unpaid," or words to the like effect ("cujus rei dies fuit''). 
Prresentare nihil aliud est quam prresto dare seu 
offere Iprez�nteriy nay(h)�l reliy�d est kwrem priystow 
deriy syuw ofehriy I. To present is no more than to give 
or offer on the spot. 
1174 
Prresentia corporis tollit errorem nominis; et veritas 
nominis tollit errorem demonstrationis 
Ipr�zensh(iy)� korp�r�s tol�t �ror�m nom�n�s, et 
vehr�tres nom�n�s tol�t �ror�m dem�nstreyshiyown�s/. 
The presence of the body cures error in the name; the 
truth of the name cures an error of description. 
Prreses Ipriysiyz/. Lat. In Roman law, a president or 
governor. Called a "n omen generale," including pro-con
suls, legates, and all who governed provinces. 
Prrestare Ipriysteriy/. Lat. In Roman law, "prrestare" 
meant to make good, and, when used in conjunction 
with the words "dare, " "facere, " "oportere, " denoted obli
gations of a personal character, as opposed to real 
rights. 
Prrestat cautela quam medela Ipriystret kotiyl� kwrem 
m�diyb /. Prevention is better than cure. 
Prresumatur pro justitia sententire Ipriyz(y)�meyt�r 
prow j;}stish(iy)� sentenshiyi y/. The presumption 
should be in favor of the justice of a sentence. 
Prresumitur pro legitimatione Ipr�z(y)uwm�t�r prow 
l�jit�meyshiyowniy/. The presumption is in favor of 
legitimacy. 
Prresumitur pro negante Ipr�z(y)uwm�t�r prow n�gren
tiy I. It is presumed for the negative. The rule of the 
house of lords when the numbers are equal on a motion. 
Prresumptio Ipr�z�m(p)sh(iy)ow/. Lat. Presumption; a 
presumption. Also intrusion, or the unlawful taking of 
anything. 
Prresumptio, ex eo quod plerumque fit Ipr�z�m(p)
sh(iy)ow eks iyow kwod pbr�mkwiy fit/. Presumptions 
arise from what generally happens. 
Prresumptio fortior Ipr�z�m(p)sh(iy)ow forsh(iy)�r/. A 
strong presumption; a presumption of fact entitled to 
great weight. One which determines the tribunal in its 
belief of an alleged fact, without, however, excluding the 
belief of the possibility of its being otherwise; the effect 
of which is to shift the burden of producing evidence to 
the opposite party, and, if this proof be not made, the 
presumption is held for truth. See Presumption. 
Prresumptio hominis Ipr�z�m(p)sh(iy)ow hom�n�s /. 
The presumption of the man or individual; that is, 
natural presumption unfettered by strict rule. 
Prresumptio juris Ipr�z�m(p)sh(iy)ow jur�s/. A legal 
presumption or presumption of law; that is, one in 
which the law assumes the existence of something until 
it is disproved by evidence; a conditional, inconclusive, 
or rebuttable presumption. 
Prresumptio juris et de jure Ipr�z�m(p)sh(iy)ow jur�s et 
diy juriy/. A presumption of law and of right; a pre
sumption which the law will not suffer to be contradict
ed; a conclusive or irrebuttable presumption. 
Prresumptio muciana Ipr�z�m(p)sh(iy)ow myuwshi
yeyn�/. In Roman law, a presumption of law that 
property in the hands of a wife came to her as a gift 
from her husband and was not acquired from other

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1175 
sources; available only in doubtful cases and until the 
contrary is shown. 
Prresumptiones sunt conjecturre ex signo verisimili 
ad probandum assumptre /pr;:)z�m(p)shiyowniyz s�nt 
konjektyliriy eks signow vehr;:)sim;:)lay red pr;:)brend;:)m 
;:)s�mptiy/. Presumptions are conjectures from probable 
proof, assumed for purposes of evidence. 
Prresumptio violenta piena probatio 
/pr;:)z�m(p)sh(iy)ow vay;:)l{mt;:) pliyn;:) pr;:)beysh(iy)ow/. 
Strong presumption is full proof. 
Prresumptio violenta valet in lege /pr;:)z�m(p)sh(iy)ow 
vay;:)lent;:) vrel;:)t in liyjiy /. Strong presumption is of 
weight in law. 
Prreteritio /pret;:)rish(iy)ow/. Lat. A passing over or 
omission. Used in the Roman law to describe the act of 
a testator in excluding a given heir from the inheritance 
by silently passing him by, that is, neither instituting 
nor formally disinheriting him. 
Prretextu liciti non debet admitti illicitum /pr;:)
tekst(y)uw lis;:)tay non deb;:)t ;:)dmitay ;:)lis;:)t;:)m/. Under 
pretext of legality, what is illegal ought not to be admit
ted. 
Prretextus /pr;:)tekst;:)s/. Lat. A pretext; a pretense or 
color. Prretextu cujus, by pretense, or under pretext 
whereof. 
Prretor /priyt;:)r/. Lat. In Roman law, a municipal 
officer of the city of Rome, being the chief judicial 
magistrate, and possessing an extensive equitable juris
diction. 
Prretor fidei-commissarius /priyt;:)r faydiyay kom
;:)se·riy;:)s/. In the civil law, a special prretor created to 
pronounce judgment in cases of trusts or fidei-commissa. 
Prretorian law /pr;:)toriy;:)n 16/. See Lex prretoria. 
Prrevaricator / pr;:)vrer;:)keyt;:)r /"vrer;:)keyo / . Lat. In the 
civil law, one who betrays his trust, or is unfaithful to 
his trust. An advocate who aids the opposite party by 
betraying his client's cause. 
Pragmatica /pragmatiyk;:)/. In Spanish colonial law, an 
order emanating from the sovereign, and differing from 
a cedula only in form and in the mode of promulgation. 
Prairie /preriy/. An extensive tract of level or rolling 
land, destitute of trees, covered with coarse grass, and 
usually characterized by a deep, fertile soil. 
Pratique /prretiyk/. A license for the master of a ship 
to traffic in the ports of a given country, or with the 
inhabitants of a given port, upon the lifting of quaran
tine or production of a clean bill of health. 
Praxis /prreks;:)s/. Lat. Use; practice. 
Praxis judicum est interpres legum /prreks;:)s juwd
ik;:)m est int�rpriyz liyg;:)m/. The practice of the judges 
is the interpreter of the laws. 
Prayer. The request contained in a bill in equity that 
the court will grant the process, aid, or relief which the 
complainant desires. Also, by extension, the term is 
applied to that part of the bill which contains this 
PREBEND 
request. Under modern rules practice, the pleader does 
not pray for relief, but, rather, demands it. Fed.R.Civil 
P. 8(a). See Prayer for relief. 
Prayer for relief. That portion of a complaint (more 
properly called "demand for relief') in a civil action 
which sets forth the requested relief or damages to 
which the pleader deems himself entitled. This is a 
requisite element of the complaint. Fed.R.Civil P. 8(a). 
Prayer of process. A petition with which a bill in 
equity used to conclude, to the effect that a writ of 
subprena might issue against the defendant to compel 
him to answer upon oath all the matters charged 
against him in the bill. 
Pray in aid. In old English practice, to call upon for 
assistance. In real actions, the tenant might pray in aid 
or call for assistance of another, to help him to plead, 
because of the feebleness or imbecility of his own estate. 
In current English practice, term refers to practice of 
attorney in action involving several parties to claim 
benefit for his client of argument used by another coun
sel for his client. 
Preamble. A clause at the beginning of a constitution 
or statute explanatory of the reasons for its enactment 
and the objects sought to be accomplished. Generally, a 
preamble is a declaration by the legislature of the rea
sons for the passage of the statute and is helpful in the 
interpretation of any ambiguities within the statute to 
which it is prefixed. Griffith v. New Mexico Public 
Service Comm., 86 N.M. 113, 520 P.2d 269, 271. It has 
been held however to not be an essential part of act, and 
neither enlarges nor confers powers. Portland Van & 
Storage Co. v. Hoss, 139 Or. 434, 9 P.2d 122, 126. 
Preappointed evidence. The kind and degree of evi
dence prescribed in advance (as, by statute) as requisite 
for the proof of certain facts or the establishment of 
certain instruments. It is opposed to casual evidence, 
which is left to grow naturally out of the surrounding 
circumstances. 
Preaudience /priyodiy;:)ns/. The right of being heard 
before another. A privilege belonging to the English 
bar, the members of which are entitled to be heard in 
their order, according to rank, beginning with the Attor
ney and Solicitor General, and Queen's Counsel, and 
ending with barristers at large. 
Prebend. In English ecclesiastical law, a stipend grant
ed in cathedral churches; also, but improperly, a pre
bendary. A simple prebend is merely a revenue; a 
prebend with dignity has some jurisdiction attached to 
it. The term "prebend" is generally confounded with 
"canonicate;" but there is a difference between them. 
The former is the stipend granted to an ecclesiastic in 
consideration of his officiating and serving in the 
church; whereas the canonicate is a mere title or spiri
tual quality which may exist independently of any sti
pend. 
Fixed portion of rents and profits of cathedral church 
used for maintenance of prebendaries.

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PREBENDARY 
Prebendary Ipreb:mdery I. An ecclesiastical person 
serving on the staff of a cathedral, and receiving a 
stated allowance or stipend from the income or endow
ment of the cathedral, in compensation for his services. 
Precarire Ipr:}keriyiyl or preces Ipriysiyz/. In old Eng
lish law, day-works which the tenants of certain manors 
were bound to give their lords in harvest time. Magna 
precaria was a great or general reaping day. 
Precarious Ipr:}keriy:}s/. Liable to be returned or ren
dered up at the mere demand or request of another; 
hence, held or retained only on sufferance or by permis
sion; and, by an extension of meaning, doubtful, un
certain, dangerous, very liable to break, fail, or termi
nate. 
Precarious loan. A bailment by way of loan which is 
not to continue for any fIxed time, but may be recalled 
at the mere will and pleasure of the lender (e.g. a 
demand loan). A loan, the repayment of which is in 
doubt or uncertain. A non-performing loan. 
Precarious possession. In modern civil law, possession 
is called "precarious" which one enjoys by the leave of 
another and during his pleasure. 
Precarious right. The right which the owner of a thing 
transfers to another, to enjoy the same until it shall 
please the owner to revoke it. 
Precarious trade. In international law, such trade as 
may be carried on by a neutral between two belligerent 
powers by the mere sufferance of the latter. 
Precarium Ipr:}keriy:}m/. Lat. In the civil law, a con
vention whereby one allows another the use of a thing 
or the exercise of a right gratuitously until revocation. 
The bailee acquires thereby the lawful possession of the 
thing, except in certain cases. The bailor can redemand 
the thing at any time, even should he have allowed it to 
the bailee for a designated period. 
Precatory Iprek:}t(:})riy/. Having the nature of prayer, 
request, or entreaty; conveying or embodying a recom
mendation or advice or the expression of a wish, but not 
a positive command or direction. 
Precatory trust. A trust created by certain words, 
which are more like words of entreaty and permission 
than of command or certainty. Examples of such words, 
which the courts have held suffIcient to constitute a 
trust, are "wish and request," "have fullest confIdence," 
"heartily beseech," and the like. See Trust. 
Precatory words. Words of entreaty, request, desire, 
wish, or recommendation, employed in wills, as distin
guished from direct and imperative terms. Mere preca
tory words or expressions in a trust or will are ineffec
tive to dispose of property. There must be a command 
or order as to the disposition of property. 
Precaution Ipr:}k6sh:}n/. Previous action; proven fore
sight; care previously employed to prevent mischief or 
to secure good result; or a measure taken beforehand; 
an active foresight designed to ward off possible prob
lems, accidents, liability, or secure good results. Rincon 
v. Berg Co., Tex.Civ.App., 60 S.W.2d 811, 813. 
1176 
Precedence I pres:}d:}nsl or precedency I pres:}d:}nsiy I. 
The act or state of going before; adjustment of place. 
The right of being fIrst placed in a certain order. See 
also Preference; Precedent; Priority. 
Precedence, patent of. In old English law, a grant from 
the crown to such barristers as it thinks proper to honor 
with that mark of distinction, whereby they are entitled 
to such rank and preaudience as are assigned in their 
respective patents. 
Precedent Ipres:}d:}nt/. An adjudged case or decision of 
a court, considered as furnishing an example or authori
ty for an identical or similar case afterwards arising or a 
similar question of law. Courts attempt to decide cases 
on the basis of principles established in prior cases. 
Prior cases which are close in facts or legal principles to 
the case under consideration are called precedents. A 
rule of law established for the fIrst time by a court for a 
particular type of case and thereafter referred to in 
deciding similar cases. See also Stare decisis. 
A course of conduct once followed which may serve as 
a guide for future conduct. See Custom and usage; 
Habit. 
Precedent condition. Such as must happen or be per
formed before an estate can vest or be enlarged. See 
Condition. 
Precedents sub silentio Ipres:}d:}nts s.Jb s:}lensh(iy)ow/. 
Silent uniform course of practice, uninterrupted though 
not supported by legal decisions. 
Prece partium Ipriysiy parsh(iy):}m/. The continuance 
of a suit by consent of both parties. 
Precept Ipriysept/. An order, writ, warrant, or process. 
An order or direction, emanating from authority, to an 
officer or body of offIcers, commanding him or them to 
do some act within the scope of their powers. An order 
in writing, sent out by a justice of the peace or other like 
offIcer, for the bringing of a person or record before him. 
Precept is not to be confIned to civil proceedings, and is 
not of a more restricted meaning than "process." It 
includes warrants and processes in criminal as well as 
civil proceedings. 
Rule imposing standard of conduct or action. 
In English law, the direction issued by a sheriff to the 
proper returning offIcers of cities and boroughs within 
his jurisdiction for the election of members to serve in 
parliament. The direction by the judges or commission
ers of assize to the sheriff for the summoning a suffI
cient number of jurors. The direction issued by the 
clerk of the peace to the overseers of parishes for mak
ing out the jury lists. Written command of justice of the 
peace or other like offIcer for the bringing of a person or 
record before him. In old English criminal law, insti
gation to commit a crime. 
In old French law, a kind of letters issued by the king 
in subversion of the laws, being orders to the judges to 
do or tolerate things contrary to law. 
Precept of attachment. Precept of attachment is an 
order to attach the goods and property of the defendant 
issued by a court generally after the action has been

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1177 
commenced when a writ of attachment has not been 
used. 
Preces /priysiyz/. Lat. In Roman law, prayers. One of 
the names of an application to the emperor. 
Preces primari re /priysiyz pr�meriyiy/. In English ec
clesiastical law, a right of the crown to name to the first 
prebend that becomes vacant after the accession of the 
sovereign, in every church of the empire. This right 
was exercised by the crown of England in the reign of 
Edward I. 
Precinct /priysiIJkt/. A constable's or police district. A 
small geographical unit of government. An election 
district created for convenient localization of polling 
places. A county or municipal subdivision for casting 
and counting votes in elections. 
Precipe /pres�piy/. Another form of the name of the 
written instructions to the clerk of court; also spelled 
"prrecipe" (q.v.). 
Precipitation /pr�sip�teysh�n/. Hastening occurrence 
of event or causing to happen or come to crisis suddenly, 
unexpectedly or too soon. 
Preciput. In French law, a portion of an estate or 
inheritance which falls to one of the coheirs over and 
above his equal share with the rest, and which is to be 
taken out before partition is made. 
Precise /pr�says/. Having determinate limitations. To 
the point. 
Preclude /pr�kl(y)uwd/. Estop. To prohibit or prevent 
from doing something; e.g. injunction. 
Precludi non /pr�kl(y)uwday non/. Lat. In common 
law pleading, the commencement of a replication to a 
plea in bar, by which the plaintiff "says that, by reason 
of anything in the said plea alleged, he ought not to be 
barred from having and maintaining his aforesaid action 
against him, the said defendant, because he says," etc. 
Preclusion order. Under Fed.R.Civil P. 37(b)(2)(B), a 
party to an action who fails to comply with an order for 
discovery may be precluded from supporting or opposing 
designated claims or defenses. 
Preconization /priyk�n�zeysh�n/. Proclamation. 
Precontract. A contract or engagement made by a 
person, which is of such a nature as to preclude him 
from lawfully entering into another contract of the same 
nature. 
Predatory intent. In purview of Robinson-Patman Act, 
means that alleged price discriminator must have at 
least sacrificed present revenues for purpose of driving 
competitor out of market with hope of recouping losses 
through subsequent higher prices. International Air 
Industries, Inc. v. American Excelsior Co., C.A.Tex., 517 
F.2d 714, 723. See also Predatory pricing. 
Predatory pricing. As antitrust violation, consists of 
pricing below appropriate measure of cost for purpose of 
eliminating competitors in short run and reducing com
petition in long run. Cargill, Inc., v. Monfort of Colora
do, 479 U.S. 104, 117, 107 S.Ct. 484, 493, 93 L.Ed.2d 427. 
PREEMPTION 
An inference to be drawn from predatory pricing is that 
defendant is acting with anticompetitive intent. Double 
H Plastics, Inc. v. Sonoco Products Co., D.C.Pa., 575 
F.Supp. 389, 394. See also Predatory intent. 
Predecease. To die before another person. 
Predecessor. One who goes or has gone before; the 
correlative of "successor." One who has filled an office 
or station before the present incumbent. Applied to a 
body politic or corporate, in the same sense as "ances
tor" is applied to a natural person. 
Predial servitude /priydiy�l s�rv�t(y)uwd/. A charge 
laid on an estate for the use and utility of another estate 
belonging to another owner. A charge on one estate for 
the stipUlated benefit of another estate; the benefit 
must be attributable to any person who may own the 
dominant estate at any time. Guillotte v. Wells, C. A. La. 
App., 485 So.2d 187, 189. To exist, there must be two 
different estates, servient and dominant, belonging to 
different owners, with benefit to dominant estate. Mari
na Enterprises v. Ahoy Marine Services, C.A.La.App., 
496 So.2d 1080, 1082. See Prredial servitude. 
Predisposition. For purposes of entrapment defense, 
may be defined as defendant's inclination to engage in 
illegal activity for which he has been charged, i.e., that 
he is ready and willing to commit the crime. It focuses 
on defendant's state of mind before government agents 
suggest that he commit crime. U.S. v. Ortiz, C.A.Utah, 
804 F.2d 1161, 1165. See also Premeditation. 
Predominant. Something greater or superior in power 
and influence to others with which it is connected or 
compared. 
Preemption /priyem(p)sh�n/. Doctrine adopted by U.S. 
Supreme Court holding that certain matters are of such 
a national, as opposed to local, character that federal 
laws preempt or take precedence over state laws. As 
such, a state may not pass a law inconsistent with the 
federal law. Examples are federal laws governing inter
state commerce. See also Federal preemption; Suprema
cy clause. 
As applied to state action versus local action, "pre
emption" means that where legislature has adopted 
scheme for regulation of given subject, local legislative 
control over such phases of subject as are covered by 
state regulation ceases. Hutchcraft Van Service, Inc. v. 
City of Urbana Human Relations Commission, 60 Ill. 
Dec. 532, 536, 104 Ill.App.3d 817, 433 N.E.2d 329, 333. 
In international law, the right of pre-emption was 
formerly the right of a nation to detain the merchandise 
of strangers passing through her territories or seas, in 
order to afford to her subjects the preference of pur
chase. 
In old English law, the first buying of a thing. A 
privilege formerly enjoyed by the crown, of buying up 
provisions and other necessaries, by, the intervention of 
the king's purveyors, for the use of his royal household, 
at an appraised valuation, in preference to all others, 
'a nd even without consent of the owner.

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PREEMPTION CLAIMANT 
Preemption claimant. One who has settled upon land 
subject to pre-emption, with the intention to acquire 
title to it, and has complied, or is proceeding to comply, 
in good faith, with the requirements of the law to 
perfect his right to it. Hosmer v. Wallace, 97 U.S. 575, 
581, 24 L.Ed. 1130. See Preemption right. 
Preemption doctrine. See Preemption. 
Preemption entry. See Entry. 
Preemption right. A privilege accorded by the govern
ment to the actual settler upon a certain limited portion 
of the public domain, to purchase such tract at a fixed 
price to the exclusion of all other applicants. Nix v. 
Allen, 112 U.S. 129, 5 S.Ct. 70, 28 L.Ed. 675. One who, 
by settlement upon the public land, or by cultivation of 
a portion of it, has obtained the right to purchase a 
portion of the land thus settled upon or cultivated, to 
the exclusion of all other persons. 
Preemptive right. The privilege of a stockholder to 
maintain a proportionate share of ownership by pur
chasing a proportionate share of any new stock issues. 
An existing stockholder in most jurisdictions has the 
right to buy additional shares of a new issue to preserve 
his equity before others have a right to purchase shares 
of the new issue. The purpose of such rights is to 
protect shareholders from dilution of value and control 
when new shares are issued. In modern corporation 
statutes, preemptive rights may be limited or denied. 
See also Stock. 
Pre-existing duty. A common law rule which holds 
that where a party does or promises to do what he or she 
is already legally obligated to do, there exists no suffi
cient consideration to support this new promise. The 
Uniform Commercial Code has eliminated the "pre-ex
isting duty" rule in sales contracts. UCC § 209--(1). 
Palmer v. Safe Auto Sales, Inc., 114 Misc.2d 964, 452 
N.Y.S.2d 995, 996. 
Prefect. In French law, the name given to the public 
functionary who is charged in chief with the administra
tion of the laws, in each department of the country. 
Crespin v. U. S., 168 U.S. 208, 18 S.Ct. 53, 42 L.Ed. 438. 
The term is also used, in practically the same sense, in 
Mexico. But in New Mexico, a prefect is a probate 
judge. 
Prefer. To bring before; to prosecute; to try; to proceed 
with. Thus, preferring an indictment signifies prosecut
jng or trying an indictment . 
To give advantage, priority, or privilege; to select for 
first payment, as to prefer one creditor over others. 
Preference. The paying or securing to one or more of 
his creditors, by an insolvent debtor, the whole or a part 
of their claim, to the exclusion or detriment of the rest. 
The act of an insolvent debtor who, in distributing his 
property or in assigning it for the benefit of his credi
tors, pays or secures to one or more creditors the full 
amount of their claims or a larger amount than they 
would be entitled to receive on a pro rata distribution. 
Jackson v. Coons, 285 Ky. 154, 147 S.W.2d 45, 47. It 
imports the relation of existing creditors having equal 
1178 
equities at the time of the transfer whereby the rights of 
one are advanced over those of another. In re George 
Rodman, Inc., C.A.Okl., 792 F.2d 125, 127. 
In bankruptcy law, a transfer by an insolvent debtor 
to one or more of his or her creditors whereby the 
creditor to whom the property was transferred is put in 
a better position than other creditors with respect to 
their priority claims to the assets of the insolvent. The 
bankruptcy trustee may disallow such preferential pay
ments or transfers of property. Bankruptcy Code § 547. 
See also Secured creditor; Voidable preference. 
Preference share. One giving its holder a preference, 
either as to receipt of dividends, or as to payment in 
case of winding up, or both. In re Schaffer Stores Co., 
224 App.Div. 268, 229 N.Y.S. 735, 739. 
Preferential assignment. An assignment of property 
for the benefit of creditors, made by an insolvent debtor, 
in which it is directed that a preference (right to be paid 
first in full) shall be given to a creditor or creditors 
therein named over other creditors. Such assignments 
are controlled by statute in most states, normally requir
ing recording, filing of schedules of assets and liabilities, 
giving notice to creditors, etc. Most all state statutes 
prohibit preferential assignments as being fraudulent 
conveyances. See Preference. 
Preferential claim. See Preferential debts. 
Preferential debts. In bankruptcy, those debts which 
are payable in preference to all others; as, wages of 
employees and administrative costs. Such debts are 
classified according to priority of claim. See Bankrupt
cy Code § 507. 
Preferential dividend. See Preferred stock. 
Preferential shop. A place of employment in which 
union members are given preference over nonunion 
members in matters of employment by agreement with 
the employer. A labor situation in a business in which 
preference is given to union men in hiring and layoff, 
but nonunion men may be hired when members of the 
union are not availabl e. See Right to work laws. 
Preferential tariff. A tariff which imposes lower rates 
of duty on goods imported from some countries ("pre
ferred countries") than on the same goods imported 
from other countries. See also Most favored nation 
clause. 
Preferential transfer. See Preference; Preferential as
signment. 
Preferred. Possessing or accorded a priority, advantage, 
or privilege. Generally denoting a prior or superior 
claim or right of payment as against another thing of 
the same kind or class; e.g. creditor with perfected 
security interest. 
Preferred creditor. Creditor with preferential right to 
payment over junior creditors; e.g. creditor with perfect
ed security interest has priority over unsecured creditor. 
U.C.C. § 9-30 1. See also Preferential debts. 
Preferred dividend. See Dividend.

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1179 
Preferred dockets. Lists of preference cases prepared 
by the clerks when the cases are set for trial. For 
example, because of the constitutional right to a speedy 
trial in criminal cases, criminal dockets are normally 
given preference over civil dockets. 
Preferred stock. Stock shares that have preferential 
rights to dividends or to amounts distributable on liqui
dation, or to both, ahead of common shareholders. Pre
ferred shares are usually entitled only to receive speci
fied limited amounts as dividends or on liquidation. If 
preferred shares are entitled to share in excess distribu
tions with common shareholders on some defined basis, 
they are participating preferred shares. Participating 
preferred shares may also be called class A common, or 
some similar designation to reflect its open-ended rights. 
See also Stock. 
Callable. Preferred stock which is subject by its terms 
to being called in for payment at a predetermined price. 
Cumulative dividend. If a dividend is passed, it must be 
paid to the preferred stockholders before the common 
stockholders receive their current dividend, and hence, 
the dividends accumulate in connection with this type of 
preferred stock. 
Non-cumulative dividend. Once a preferred dividend is 
passed in a particular period, the right to that dividend 
has passed though the preferred stockholder is entitled 
to his dividend in the next period before the common 
stockholders receive their dividend. 
Participating. That type of preferred stock which is 
entitled to additional dividends beyond its stated divi
dend after the common stock dividend has been paid. 
Preferred stock bailout. A procedure whereby the is
suance, sale, and later redemption or a preferred stock 
dividend was used by a shareholder to obtain long-term 
capital gains without any loss of voting control over the 
corporation. In effect, therefore, the shareholder was 
able to bail-out corporate profits without suffering the 
consequences of dividend income treatment. This proce
dure led to the enactment by Congress of I.R.C. § 306 
which, if applicable, converts the prior long-term capital 
gain on the sale of the stock to ordinary income. Under 
these circumstances, the amount of ordinary income is 
limited to the shareholder's portion of the corporation's 
earnings and profits existing when the preferred stock 
was issued as a stock dividend. However, the enactment 
of the Tax Reform Act of 1986 has changed the impact 
of I.R.C. § 306 substantially due to the repeal of the 
favorable tax treatment previously given to long term 
capital gains. 
Prior. Preferred stock which takes precedence over 
other issues of preferred stock of the same corporation. 
Preferred stockholders. Beneficial holders of preferred 
stock shares. 
Preferred stockholders' contract. Term used to de
scribe the provisions of the articles of incorporation, the 
bylaws, or the resolution of the board of directors, creat
ing and defining the rights of holders of the preferred 
shares in question. Preferred shareholders have only 
PREJUDICIAL ERROR 
very limited statutory or common law rights outside of 
the preferred shareholders' contract. 
Pregnancy. The condition resulting from the fertilized 
ovum. The existence of the condition beginning at the 
moment of conception and terminating with delivery of 
the child. 
Extra uterine or ectopic pregnancy is the development 
of the ovum outside of the uterine cavity, as in the 
Fallopian tubes or ovary. Extra uterine pregnancy com
monly terminates by rupture of the sac, profuse internal 
hemorrhage, and death if not relieved promptly by a 
surgical operation. 
Pregnancy, plea of. A plea which a woman capitally 
convicted may plead in stay of execution; for this, 
though it is no stay of judgment, yet operates as a 
respite of execution until she is delivered. See also 
Matrons, jury of. 
Pregnant negative. See Negative pregnant. 
Prejudice. A forejudgment; bias; partiality; precon
ceived opinion. A leaning towards one side of a cause 
for some reason other than a conviction of its justice. 
See also Average man test; Bias; Discrimination. 
Evidence. Within rule allowing exclusion of relevant 
evidence if probative value is substantially outweighed 
by danger of unfair prejudice, means undue tendency to 
move tribunal to decide on improper basis. State v. 
Trafton, Me., 425 A.2d 1320, 1324. See Fed.Evid.R. 403. 
Of judge. That which disqualifies judge is condition of 
mind, which sways judgment and renders judge unable 
to exercise his functions impartially in particular case. 
It refers to mental attitude or disposition of the judge 
toward a party to the litigation, and not to any views 
that he may entertain regarding the subject matter 
involved. State ex reI. Mitchell v. Sage Stores Co., 157 
Kan. 622, 143 P.2d 652, 655. 
Speedy trial. Prejudice with respect to right to speedy 
trial means actual prejudice to defendant's ability to 
present effective defense, U.S. v. Menke, D.C.Pa., 339 
F.Supp. 1023, 1026, and such prejudice is not confined to 
merely an impairment of the defense but includes any 
threat to what has been termed an accused's significant 
stakes, psychological, physical and financial, in the 
prompt termination of a proceeding which may ulti
mately deprive him of life, liberty or property. U.S. v. 
Dreyer, C.A.N.J., 533 F.2d 112, 115. 
Without prejudice. Where an offer or admission is made 
"without prejudice," or a motion is denied or a bill in 
equity dismissed "without prejudice," it is meant as a 
declaration that no rights or privileges of the party 
concerned are to be considered as thereby waived or lost, 
except in so far as may be expressly conceded or decided. 
See also Dismissal with prejudice; Dismissal without preju
dice. 
Prejudicial error. Error substantially affecting appel
lant's legal rights and obligations. Erskine v. Upham, 
56 Cal.App.2d 235, 132 P.2d 219, 228. One which affects 
or presumptively affects the final results of the trial.

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PREJUDICIAL ERROR 
State v. Gilcrist, 15 Wash.App. 892, 552 P.2d 690, 693. 
Such may be ground for new trial and reversal of 
judgment. Fed.R.Civil P. 59. See also Error; Plain error 
rule. 
Prejudicial publicity. Due process requires that all 
parties to an action, civil or criminal, receive a trial by 
an impartial jury or tribunal free from outside influ
ences. Extensive newspaper, radio and television cover
age of a criminal trial may deprive the defendant of a 
fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 
1507, 16 L.Ed.2d 600. See Gag order; Trial (Trial by 
news media). 
Preliminary. Introductory; initiatory; preceding; tem
porary and provisional; as preliminary examination, 
injunction, articles of peace, etc. 
Preliminary complaint. In some states, a court with
out jurisdiction to hear a criminal case on its merits 
may issue a preliminary complaint or process and con
duct a probable cause or bind over hearing on such 
complaint. 
Preliminary evidence. Such evidence as is necessary to 
commence a hearing or trial and which may be received 
conditionally in anticipation of other evidence linking it 
to issues in the case. See Foundation. 
Preliminary examination. See Preliminary hearing. 
Preliminary hearing. The hearing by a judge to deter
mine whether a person charged with a crime should be 
held for trial. A hearing held in felony cases prior to 
indictment during which the state is required to produce 
sufficient evidence to establish that there is probable 
cause to believe (a) that a crime has been committed and 
(b) that the defendant committed it. See Fed.R.Crim.P. 
5.1. 
Preliminary hearing before magistrate is, basically, a 
first screening of the charge; its function is not to try 
the defendant, nor does it require the same degree of 
proof or quality of evidence as is necessary for an 
indictment or for conviction at trial. Its function is to 
determine whether there is sufficient evidence to hold 
an accused for trial. Mattioli v. Brown, 71 Misc.2d 99, 
335 N.Y.S.2d 613, 615. 
Indigent defendants have a right to be represented by 
counsel at a preliminary examination. Coleman v. Ala
bama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Adams 
v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202. 
Compare Arraignment. See also Information. 
Preliminary injunction. A preliminary injunction 
should be granted only upon a clear showing by party 
seeking the extraordinary remedy of (1) probable success 
upon a trial on the merits, and (2) likely irreparable 
injury to him unless the in junction is granted, or (3) if 
his showing of probable success is limited but he raised 
substantial and difficult issues meriting further inquiry, 
that the harm to him outweighs the injury to others if it 
is denied. Cohen v. Price Commission, D.C.N.Y., 337 
F.Supp. 1236, 1239. See Fed.R.Civil P. 65. See also 
Injunction. 
1180 
Preliminary proof. In insurance, the first proof offered 
of a loss occurring under the policy, usually sent in to 
the underwriters with the notification of claim. 
Preliminary prospects. See Red herring. 
Preliminary warrant. In some jurisdictions, a warrant 
or order to bring a person to court for a preliminary 
hearing on probable cause. 
Premarital agreements. See Antenuptial agreements. 
Premeditate. To think of an act beforehand; to contrive 
and design; to plot or lay plans for the execution of a 
purpose. See Deliberate; Premeditation. 
Premeditated design. In homicide cases, the mental 
purpose, the formed intent, to take human life. Pre
meditated murder is murder in the first degree. 
Premeditatedly. Thought of beforehand, for any length 
of time, however short. 
Premeditation. The act of meditating in advance; de
liberation upon a contemplated act; plotting or contriv
ing; a design formed to do something before it is done. 
Decision or plan to commit a crime, such as murder, 
before committing it. A prior determination to do an 
act, but such determination need not exist for any 
particular period before it is carried into effect. 
Thought of beforehand for any length of time, however 
short. State v. Marston, Mo., 479 S.W.2d 481, 484. 
Premeditation is one of the elements of first degree 
murder, and in this context, means that defendant acts 
with either the intention or the knowledge that he will 
kill another human being when such intention or knowl
edge precedes the killing by a length of time to permit 
reflection. State v. Clabourne, 142 Ariz. 335, 690 P.2d 
54, 64. See also Deliberate; Deliberation; Malice afore
thought; Willful. 
Premises. That which is put before; that which pre
cedes; the foregoing statements. Thus, in logic, the two 
introductory propositions of the syllogism are called the 
"premises," and from them the conclusion is deduced. 
So, in pleading, the expression "in consideration of the 
premises" means in consideration of the matters herein
before stated. 
In conveyancing. That part of a deed which precedes 
the habendum, in which are set forth the names of the 
parties with their titles and additions, and in which are 
recited such deeds, agreements, or matters of fact as are 
necessary to explain the reasons upon which the present 
transaction is founded; and it is here, also, the consider
ation on which it is made is set down and the certainty 
of the thing granted. 
In equity pleading. The stating part of a bill. It con
tains a narrative of the facts and circumstances of the 
plaintiffs case, and the wrongs of which he complains, 
and the names of the persons by whom done and against 
whom he seeks redress. In most states equity pleading 
is obsolete, having been replaced by notice pleading 
under Rules of Civil Procedure. See Complaint. 
In estates and property. Land with its appurtenances 
and structures thereon. Premises is an elastic and

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inclusive term, and it does not have one definite and 
fixed meaning; its meaning is to be determined by its 
context and is dependent on circumstances in which 
used, and may mean a room, shop, building, or any 
definite area. Allen v. Genry, Ala., 97 So.2d 828, 832. 
A dwelling unit and the structure of which it is a part 
and faculties and appurtenances therein and grounds, 
areas, and facilities held out for the use of tenants 
generally or whose use is promised to the tenant. Uni
form Residential Landlord and Tenant Act, 1.301(a). 
In criminal law. The term as used in a search warrant 
includes land, buildings, and appurtenances thereto. 
State v. Trujillo, 95 N.M. 535, 624 P.2d 44. 
In workers' compensation acts. "Premises" of the em
ployer as used in workers' compensation acts is not 
restricted to the permanent site of the statutory employ
er's business nor limited to property owned or leased by 
him but contemplates any place under the exclusive 
control of employer where his usual business is being 
carried on or conducted. Boatman v. Superior Outdoor 
Advertising Co., Mo.App., 482 S.W.2d 743, 745. 
Premium. A reward for an act done. Brown v. Board of 
Police Com'rs of City of Los Angeles, 58 CaLApp.2d 473, 
136 P.2d 617, 619. See also Bonus. 
A bounty or bonus; a consideration given to invite a 
loan or a bargain, as the consideration paid to the 
assignor by the assignee of a lease, or to the transferer 
by the transferee of shares of stock, etc. So stock is said 
to be "at a premium" when its market price exceeds its 
nominal or face value. The excess of issue (or market) 
price over par value. See Par. 
In granting a lease, part of the rent is sometimes 
capitalized and paid in a lump sum at the time the lease 
is granted. This is called a "premium ." 
The sum paid or agreed to be paid by an insured to 
the underwriter (insurer) as the consideration for the 
insurance. The price for insurance protection for a 
specified period of exposure. 
See also Earned premium; Net premium; Net single 
premium. 
Advance premium. Payment made at the start of the 
period covered by the insurance policy. 
Premium note. A promissory note given by the insured 
for part or all of the amount of the premium. 
Securities. The amount by which a preferred stock or 
bond may sell above its par (face) value. In the case of a 
new issue of bonds or stocks, premium is the amount the 
market price rises over the original selling price. Also 
refers to a charge sometimes made when a stock is 
borrowed to make delivery on a short sale. May refer, 
also, to redemption price of a bond or preferred stock if 
it is higher than face value. 
Unearned premium. Portion of original premium not 
yet earned by insurance company and therefore due 
policyholder if the policy should be cancelled. In ac
counting, the account which reflects that portion of a 
premium that has been paid for insurance coverage 
PREPAID LEGAL SERVICES 
which has not yet been extended. The basic insurance 
reserve in the casualty insurance business. Since poli
cyholders typically pay the full premium in advance, the 
premium is wholly "unearned" when the primary insur
er receives it. United States v. Consumer Life Ins. Co., 
430 U.S. 725, 729, 97 S.Ct. 1440, 1443, 52 L.Ed.2d 4. See 
I.R.C. § 801(c). 
Premium bond. See Bond. 
Premium loan. Loan made for purpose of paying an 
insurance premium and secured by the policy. 
Premium pudicitire Ipriymiy;}m pyUwd;}sishiyiy/. The 
price of chastity. A compensation for the loss of chasti
ty, paid or promised to, or for the benefit of, a seduced 
female. 
Premium tax. Tax paid by insurer on gross insurance 
premiums sold in state. 
Premunire Iprem;}nayriy /. See Prremunire. 
Prenatal injuries. See Child. 
Prenda Iprimda/. In Spanish law, pledge. 
Prender, prendre Iprimd;}r/prondr(;})/. L. Fr. To take. 
The power or right of taking a thing without waiting for 
it to be offered. See A prendre. 
Prender de baron Iprimd;}r d;} brer;}n/. L. Fr. In old 
English law, a taking of husband; marriage. An excep
tion or plea which might be used to disable a woman 
from pursuing an appeal of murder against the killer of 
her former husband. 
Prenomen I priynowm;}n I . Lat. The first or Christian 
name of a person. 
Pre-nuptial agreement. One entered into by prospec
tive spouses prior to marriage but in contemplation and 
in consideration thereof; by it, the property or other 
financial rights of one or both of the prospective spouses 
are determined or are secured to one or both of them or 
their children. Friedlander v. Friedlander, 80 Wash.2d 
293, 494 P.2d 208, 212. A number of states have 
adopted the Uniform Premarital Agreement Act which 
prescribes the content, execution, amendment, etc. of 
such agreements. See also Antenuptial agreement; Mari
tal agreements; Post-nuptial agreement. 
Prepaid expense. An expense paid before it is current
ly due. In accounting, an expenditure for a benefit not 
yet enjoyed, e.g. pre-paid insurance premiums from the 
standpoint of the insured. Cash basis as well as accrual 
basis taxpayers are generally required to capitalize pre
payments for rent, insurance, etc. that cover more than 
one year. Deductions are taken during the period the 
benefits are received. 
Prepaid income. In accounting, income received but 
not yet earned; also referred to as deferred revenue. 
Prepaid interest. Interest paid before the time it is 
earned. 
P�epaid legal services. System by which persons may 
pay premiums to cover future legal services much the 
same as payments are made for future medical ex-

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PREPAID LEGAL SERVICES 
penses. Such plan may be either open-ended whereby 
the person can secure legal services from the attorney of 
his choice, or closed-end whereby he must secure the 
services of a particular attorney, group of attorneys, or 
list of attorneys. 
Preparation. With respect to criminal offense, consists 
in devising or arranging means or measures necessary 
for its commission, while attempt is direct movement 
toward commission after preparations are made. State 
v. Quick, 199 S.C. 256, 19 S.E.2d 101, 103. See also Aid 
and abet. 
Prepare. To provide with necessary means; to make 
ready; to provide with what is appropriate or necessary. 
Prepayment. Payment of debt obligation or expense 
before it is due. 
Prepayment clause. Provision in mortgage or note 
giving borrower right to pay off the indebtedness before 
it becomes due. See also Prepayment penalty. 
Prepayment penalty. A penalty under a note, mort
gage, or deed of trust, imposed when the loan is paid 
before its due date. Consideration to terminate loan at 
borrower's election before maturity. See also Penalty 
clause. 
Prepayments. Assets representing expenditures for fu
ture benefits. Rent and insurance premiums paid in 
advance are usually classified as current prepayments. 
Prepense. Forethought; preconceived; premeditated. 
Preponderance of evidence. As standard of proof in 
civil cases, is evidence which is of greater weight or 
more convincing than the evidence which is offered in 
opposition to it; that is, evidence which as a whole 
shows that the fact sought to be proved is more probable 
than not. Braud v. Kinchen, La.App., 310 So.2d 657, 
659. With respect to burden of proof in civil actions, 
means greater weight of evidence, or evidence which is 
more credible and convincing to the mind. That which 
best accords with reason and probability. The word 
"preponderance" means something more than "weight"; 
it denotes a superiority of weight, or outweighing. The 
words are not synonymous, but substantially different. 
There is generally a "weight" of evidence on each side in 
case of contested facts. But juries cannot properly act 
upon the weight of evidence, in favor of the one having 
the onus, unless it overbear, in some degree, the weight 
upon the other side. 
That amount of evidence necessary for the plaintiff to 
win in a civil case. It is that degree of proof which is 
more probable than not. 
Preponderance of evidence may not be determined by 
the number of witnesses, but by the greater weight of all 
evidence, which does not necessarily mean the greater 
number of witnesses, but opportunity for knowledge, 
information possessed, and manner of testifying deter
mines the weight of testimony. 
See also Fair preponderance of evidence. 
Prerogative Ipr;)rog;)t;)v/. An exclusive or peculiar 
right or privilege. The special power, privilege, immu-
1182 
nity, right or advantage vested in an official person, 
either generally, or in respect to the things of his office, 
or in an official body, as a court or legislature. 
Prerogative court. In old English law, a court estab
lished for the trial of all testamentary causes, where the 
deceased left bona notabilia within two different dioces
es; in which case the probate of wills belonged to the 
archbishop of the province, by way of special preroga
tive. And all causes relating to the wills, administra
tions, or legacies of such persons were originally cogniza
ble herein, before a judge appointed by the archbishop, 
called the "judge of the prerogative court," from whom 
an appeal lay to the privy council. The jurisdiction of 
these courts became obsolete with the transfer of the 
testamentary jurisdiction of the ecclesiastical courts to 
the Chancery Division of the High Court. 
Prerogative law. That part of the common law of 
England which is more particularly applicable to the 
king. 
Prerogative writs. In English law, the name was given 
to certain judicial writs issued by the courts only upon 
proper cause shown, never as a mere matter of right, the 
theory being that they involved a direct interference by 
the government with the liberty and property of the 
subject, and therefore were justified only as an exercise 
of the extraordinary power (prerogative) of the crown. 
In America, issuance is now generally regulated by 
statute, and such are generally referred to as extraordi
nary writs or remedies. 
Such writs have been abolished in the federal and 
most state courts with the adoption of Rules of Civil 
Procedure. The relief formerly available by such writs 
is now available by appropriate action or motion under 
the Rules of Civil Procedure. See Rule 81. These writs 
are the writs of mandamus, procedendo, prohibition, quo 
warranto, habeas corpus, and certiorari. 
Pres Iprey/. L. Fr. Near. Cy pres, so near; as near. 
See Cy pres. 
Presale. Sale of real estate (e.g., condominium units) 
before construction has started. 
Presbyter I prezb;)t;)r I. Lat. In civil and ecclesiastical 
law, an elder; a presbyter; a priest. 
Presbyterianism. One of the principal systems of 
church polity known as the "Christian Protestant 
Church", occupying an intermediate position between 
episcopacy and congregationalism. A religious faith or 
doctrine, based on the Westminster Confession of Faith 
and the Larger and Shorter Catechisms. 
Presbyterium. That part of the church where divine 
offices are performed; formerly applied to the choir or 
chancel, because it was the place appropriated to the 
bishop, priest, and other clergy, while the laity were 
confined to the body of the church. 
Prescribable Ipr;)skrayb;)b;)l/. That to which a right 
may be acquired by prescription.

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Prescribe. To assert a right or title to the enjoyment of 
a thing, on the ground of having hitherto had the 
uninterrupted and immemorial en joyment of it. 
To lay down authoritatively as a guide, direction, or 
rule; to impose as a peremptory order; to dictate; to 
point, to direct; to give as a guide, direction, or rule of 
action; to give law. To direct; define; mark out. 
In a medical sense "prescribe" means to direct, desig
nate, or order use of a particular remedy, therapy, 
medicine, or drug. 
Prescription. A direction of remedy or remedies for a 
disease, illness, or injury and the manner of using them. 
Also, a formula for the preparation of a drug or medi
cine. 
Prescription is a peremptory and perpetual bar to 
every species of action, real or personal, when creditor 
has been silent for a certain time without urging his 
claim. Jones v. Butler, La.App., 346 So.2d 790, 791. 
Acquisition of a personal right to use a way, water, 
light and air by reason of continuous usage. See also 
Prescriptive easement. 
International law. Acquisition of sovereignty over a 
territory through continuous and undisputed exercise of 
sovereignty over it during such a period as is necessary 
to create under the influence of historical development 
the general conviction that the present condition of 
things is in conformity with international order. State 
of Arkansas v. State of Tennessee, 310 U.S. 563, 60 S.Ct. 
1026, 1030, 84 L.Ed. 1362. 
Prescription in a que estate. A claim of prescription 
based on the immemorial enjoyment of the right 
claimed, by the claimant and those former owners 
"whose estate" he has succeeded to and holds. 
Real property law. The name given to a mode of ac
quiring title to incorporeal hereditaments by immemori
al or long-continued enjoyment. Hester v. Sawyers, 41 
N.M. 497, 71 P.2d 646, 649. Prescription is the term 
usually applied to incorporeal hereditaments, while "ad
verse possession" is applied to lands. See Hereditaments. 
In Louisiana, prescription is defined as a manner of 
acquiring the ownership of property, or discharging 
debts, by the effect of time, and under the conditions 
regulated by law. Each of these prescriptions has its 
special and particular definition. The prescription by 
which the ownership of property is acquired, is a right 
by which a mere possessor acquires the ownership of a 
thing which he possesses by the continuance of his 
possession during the time fixed by law. The prescrip
tion by which debts are released, is a peremptory and 
perpetual bar to every species of action, real or personal, 
when the creditor has been silent for a certain time 
without urging his claim. In this sense of the term it is 
very nearly equivalent to what is elsewhere expressed 
by "limitation of actions," or rather, the "bar of the 
statute of limitatio ns." 
See also Adverse possession; Prescriptive easement. 
Prescriptive easement. A right to use another's prop
erty which is not inconsistent with the owner's rights 
PRESENT 
and which is acquired by a use, open and notorious, 
adverse and continuous for the statutory period (e.g. 
twenty years). To a certain extent, it resembles title by 
adverse possession but differs to the extent that the 
adverse user acquires only an easement and not title. 
To create an easement by "prescription," the use must 
have been open, continuous, exclusive, and under claim 
of right for statutorily prescribed period with knowledge 
or imputed knowledge of the owner. Matsu v. Chavez, 
96 N.M. 775, 635 P.2d 584, 587. See also Adverse 
possession. 
Presence. Act, fact, or state of being in a certain place 
and not elsewhere, or within sight or call, at hand, or in 
some place that is being thought of. The existence of a 
person in a particular place at a given time particularly 
with reference to some act done there and then. Be
sides actual presence, the law recognizes constructive 
presence, which latter may be predicated of a person 
who, though not on the very spot, was near enough to be 
accounted present by the law, or who was actively 
co-operating with another who was actually present. 
Presence of an offi.cer. An offense is committed in 
"presence" or "view" of officer, within rule authorizing 
arrest without warrant, when officer sees act constitut
ing it, though at distance, or when circumstances within 
his observation give probable cause for belief that defen
dant has committed offense, or when he hears distur
bance created by offense and proceeds at once to scene, 
or if offense is continuing, or has not been fully consum
mated when arrest is made. 
Presence of defendant. In the trial of all felonies, the 
defendant or accused has the right to be present at 
every stage of the criminal proceeding unless he wilfully 
and without justification absents himself or by his con
duct renders it impossible to conduct the trial. In many 
states, this rule does not obtain as to misdemeanors. 
Fed.R.Crim.P. 43 specifies when the presence of the 
defendant is required and not required. 
Presence of the court. A contempt is in the "presence 
of the court," if it is committed in the ocular view of the 
court, or where the court has direct knowledge of the 
contempt. 
Presence of the testator. Will is attested in presence of 
testator if witnesses are within range of any of testator's 
senses. In re Demaris' Estate, 166 Or. 36, 110 P.2d 571, 
585, 586. See Attestation. 
Present, n. A gift; a gratuity; anything presented or 
given. 
Present, adj. Now existing; at hand; relating to the 
present time; considered with reference to the present 
time. See also Presentment. 
Present ability. As used in describing an element of the 
crime of assault, it means immediate or a point near 
immediate as regards the defendant's capacity to inflict 
harm. People v. Ranson, 40 Cal.App.3d 317, 114 Cal. 
Rptr. 874, 877. 
Present conveyance. A conveyance made with the inten
tion that it take effect at once and not at a future time.

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PRESENT 
Present danger test. See Clear and present danger doc
trine. 
Present enjoyment. The immediate or present posses
sion and use of an estate or property, as distinguished 
from such as is postponed to a future time. 
Present estate. An estate in immediate possession; one 
now existing, or vested at the present time; as distin
guished from a future estate, the en joyment of which is 
postponed to a future time. 
Present interest. One which entitles the owner to the 
immediate possession of the property. 
A Itpresent interest ", as distinguished from a future 
interest for purpose of federal gift tax annual exclusion, 
denotes a present right to realize, enjoy or use donated 
property. Duffey v. U. S., D.C.Minn., 182 F.Supp. 765, 
767. An interest in property is a Itpresent interest" if 
the donee has the right presently to use, possess, or 
enjoy it. Gilmore v. C. I. R, C.A. 6th, 213 F.2d 520, 521. 
Present sale. A sale which is accomplished by the mak
ing of the contract. U.C.C. § 2-106(1). 
Present time. A period of appreciable and generally 
considerable duration within which certain transactions 
are to take place. 
Present use. One which has an immediate existence, 
and is at once operated upon by the statute of uses. 
Presentative advowson /pr�zent�t�v �dvawz�n/. See 
Advowson. 
Pre-sentence hearing. Procedural step prior to sen
tencing at which a judge may examine the presentence 
report and all other relevant material before imposing 
sentence. Sentencing is a "critical stage" of a criminal 
prosecution requiring assistance of appointed counsel. 
Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 
336. See Pre-sentence investigation; Pre-sentence report. 
Pre-sentence investigation. Investigation of the rele
vant background of a convicted offender, usually con
ducted by a probation officer attached to a court, de
signed to act as a sentencing guide for the sentencing 
judge. See e.g. 18 U.S.C.A. § 3552; Fed.RCrim.P. 32(c). 
See also Pre-sentence report. 
Pre-sentence report. The report prepared from the 
presentence investigation, which is designed to assist the 
judge in passing sentence on a convicted defendant. 
Presentence reports vary in scope and focus, but typical
ly contain at least the following items: (1) complete 
description of the situation surrounding the criminal 
activity; (2) offender's educational background; (3) of
fender's employment background; (4) offender's social 
history; (5) residence history of the offender; (6) offend
er's medical history; (7) information about environment 
to which the offender will return; (8) information about 
any resources available to assist the offender; (9) proba
tion officer's view of the offender's motivations and 
ambitions; (10) full description of the defendant's crimi
nal record; and, (11) recommendation as to disposition. 
See e.g., 18 U.S.C.A. § 3552 and Fed.RCrim.P. 32(c) with 
regard to presentence reports in federal criminal cases. 
1184 
Presenter. Any person presenting a draft or demand for 
payment for honor under a credit even though that 
person is a confirming bank or other correspondent 
which is acting under an issuer's authorization. U.C.C. 
§ 5-112(3). See also Presentment. 
Presenting bank. Any bank presenting an item except 
a payor bank, U.C.C. § 4-105(e), i.e., a bank that de
mands of a drawee or other payor that she pay or accept 
a draft or other instrument. 
Presently. Immediately; now; at once. A right which 
may be exercised Itpresently" as opposed to one in rever
sion or remainder. 
Presentment. The written notice taken by a grand jury 
of any offense, from their own knowledge or observation, 
without any bill of indictment laid before them at the 
suit of the government. A presentment is an accusa
tion, initiated by the grand jury itself, and in effect an 
instruction that an indictment be drawn. U. S. v. 
Briggs, C.A.Fla., 514 F.2d 794, 804. A written accusa
tion of crime made and returned by the grand jury upon 
its own initiative in the exercise of its lawful inquisitori
al powers, is in the form of a bill of indictment, and in 
practice is signed individually by all the grand jurors 
who return it. State v. Hudson, Tenn.Cr.App., 487 
S.W.2d 672, 674. See also In dictment; Information; Pre
senter. 
The production of a negotiable instrument to the 
drawee for his acceptance, or to the drawer or acceptor 
for payment; or of a promissory note to the party liable, 
for payment of the same. Presentment is a demand for 
acceptance or payment made upon the maker, acceptor, 
drawee or other payor by or on behalf of the holder. 
U.C.C. § 3-504(1). 
Presentment warranty. See Warranty. 
Present recollection recorded. A witness may use any 
document which helps revive or It jog" his memory of a 
past event and such document does not thereby become 
evidence. His testimony is the evidence though the 
opponent is entitled to see and examine the document 
and to impeach the credibility of the witness with it. 
Fed.Evid.R 612. See also Past recollection recorded. 
Present recollection revived. The use by a witness of 
some writing or other object to refresh his recollection 
so that he may testify about past events from present 
recollection. Askins v. State, Md.App., 284 A.2d 626, 
631. See also Present recollection recorded. 
Presents. The present instrument. The phrase Itthese 
presents" is used in any legal document to designate the 
instrument in which the phrase itself occurs. 
Present value. Time value of money. Current value of 
a future payment, or series of payments, discounted at 
some compound or discount rate. The amount as of a 
date certain of one or more sums payable in the future, 
discounted to the date certain. See, e.g., U.C.C. 
§ 2A-I03. 
Preservation. Keeping safe from harm; avoiding inju
ry, destruction, or decay; maintenance. It is not cre-

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1185 
ation, but the saving of that which already exists, and 
implies the continuance of what previously existed. See 
Maintenance. 
Preside. To occupy the place of authority as of presi
dent, chairman, moderator, etc. To direct, control or 
regulate proceedings as chief officer, moderator, etc. To 
possess or exercise authority. To preside over a court is 
to "hold" it ,-to direct, control, and govern it as the 
chief officer. A judge may "preside" whether sitting as 
a sole judge or as one of several judges. 
President. One placed in authority over others; a chief 
officer; a presiding or managing officer; a governor, 
ruler, or director. The chairman, moderator, or presid
ing officer of a legislative or deliberative body, appointed 
to keep order, manage the proceedings, and govern the 
administrative details of their business. 
The chief officer of a corporation, company, board, 
committee, etc., generally having the main direction and 
administration of their concerns. Roe v. Bank of Ver
sailles, 167 Mo. 406, 67 S.W. 303. The term does not 
ordinarily include "vice president." First Nat. Bank v. 
C. H. Meyers & Co., Tex.Civ.App., 283 S.W. 265, 266. 
The chief executive magistrate of a state or nation, 
particularly under a democratic form of government; or 
of a province, colony, or dependency. In the United 
States, the word is commonly used in reference to the 
private as well as public character of the nation's chief 
executive. U. S. v. Metzdorf, D.C.Mont., 252 F. 933, 937. 
Presidential electors. A body of electors chosen in the 
different states, whose sole duty it is to elect a president 
and vice-president of the United States. Each state 
appoints, in such manner as the legislature thereof may 
direct, a number of electors equal to the whole number 
of senators and 'representatives to which the state is 
entitled in congress. Const .U.S. Art. 2, § 1; Amendment 
XII; McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 
L.Ed. 869. The usual method of appointment is by 
general ballot, so that each voter in a state votes for the 
whole number of electors to which his state is entitled. 
See Electoral college. 
Presidential powers. See Executive powers. 
President of the United States. The official title of the 
chief executive officer of the federal government in the 
United States. 
Press. The aggregate of publications issuing from the 
press, or the giving publicity to one's sentiments and 
opinions through the medium of printing; as in the 
phrase "liberty of the press." Freedom of the press is 
guaranteed by the First Amendment. See Liberty. 
In old English practice, a piece or skin of parchment, 
several of which used to be sewed together in making up 
a roll or record of proceedings. 1 Bl.Comm. 183. 
Pressing seamen. See Im pressment. 
Pressing to death. See Peine forte et dure. 
Prest. In old English law, a duty in money to be paid by 
the sheriff upon his account in the exchequer, or for 
money left or remaining in his hands. 
Black's Law Dictionary 6th Ed.-26 
PRESUMPTION 
Prestation /pr�steysh;m/. In old English law, a presting 
or payment of money. A payment or performance; the 
rendering of a service. 
Prestimony /prest�m�niy/ or prrestimonia /prest�m6w
n(i)y�/. In canon law, a fund or revenue appropriated 
by the founder for the subsistence of a priest, without 
being erected into any title or benefice, chapel, prebend, 
or priory. It is not subject to the ordinary; but of it the 
patron, and those who have a right from him, are the 
collators. 
Prest money. In old English law, a payment which 
binds those who receive it to be ready at all times 
appointed, being meant especially of soldiers. 
Presumably. Fit to be assumed as true in advance of 
conclusive evidence; credibly deduced; fair to suppose; 
by reasonable supposition or inference; what appears to 
be entitled to belief without direct evidence. See Pre
sumption. 
Presume. To assume beforehand. In a more technical 
sense, to believe or accept upon probable evidence. See 
Presumption. 
Presumed intent. A person is presumed to intend the 
natural and probable consequences of his voluntary acts. 
The government is not required in crimes to prove that 
a defendant intended the precise consequences of his act 
and his criminal intent can be inferred from his act. 
Presumption. An inference in favor of a particular fact. 
A presumption is a rule of law, statutory or judicial, by 
which finding of a basic fact gives rise to existence of 
presumed fact, until presumption is rebutted. Van 
Wart v. Cook, Okl.App., 557 P.2d 1161, 1163. A legal 
device which operates in the absence of other proof to 
require that certain inferences be drawn from the avail
able evidence. Port Terminal & Warehousing Co. v. 
John S. James Co., D.C.Ga., 92 F.R.D. 100, 106. 
A presumption is an assumption of fact that the law 
requires to be made from another fact or group of facts 
found or otherwise established in the action. A pre
sumption is not evidence.' A presumption is either con
clusive or rebuttable. Every rebuttable presumption is 
either (a) a presumption affecting the burden of produc
ing evidence or (b) a presumption affecting the burden of 
proof. Calif.Evid.Code, § 600. 
In all civil actions and proceedings not otherwise 
provided for by Act of Congress or by the Federal Rules 
of Evidence, a presumption imposes on the party against 
whom it is directed the burden of going forward with 
evidence to rebut or meet the presumption, but does not 
shift to such party the burden of proof in the sense of 
the risk of nonpersuasion, which remains throughout 
the trial upon the party on whom it was originally cast. 
Federal Evidence Rule 30!. 
See also Disputable presumption; In ference; Juris et de 
jure; Presumptive evidence; Prima facie; Raise a pre
sumption. 
Commercial law. A presumption means that the trier of 
fact must find the existence of the fact presumed unless

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PRESUMPTION 
and until evidence is introduced which would support a 
finding of its non-existence. U.C.C. § 1-20 1(31). 
Conclusive presumptions. A conclusive presumption is 
one in which proof of basic fact renders the existence of 
the presumed fact conclusive and irrebuttable. Such is 
created when a jury is charged that it must infer the 
presumed fact if certain predicate facts are established. 
People v. Sellers, 3 Dept., 109 AD.2d 387, 492 N.Y.S.2d 
127, 128. Few in number and often statutory, the 
majority view is that a conclusive presumption is in 
reality a substantive rule of law, not a rule of evidence. 
An example of this type of presumption is the rule that 
a child under seven years of age is presumed to be 
incapable of committing a felony. The Federal Evid,;mce 
Rules (301, 302) and most state rules of evidence are 
concerned only with rebuttable presumptions. Compare 
Rebuttable presumption, below. 
Conflicting presumptions. See Inconsistent presumptions 
below. 
Inconsistent presumptions. If presumptions are incon
sistent, the presumption applies that is founded upon 
weightier considerations of policy. If considerations of 
policy are of equal weight neither presumption applies. 
Uniform Rules of Evidence. Rule 301(b). 
Irrebuttable presumption. See Conclusive presumptions, 
above. 
Mandatory presumption. See Conclusive presumptions, 
above. 
Permissive presumption. One which allows, but does not 
require, trier of fact to infer elemental fact from proof 
by prosecutor of basic one, and which places no burden 
of any kind on defendant. State v. Scott, 8 Ohio App.3d 
1, 8 O.B.R. 1, 455 N.E.2d 1363, 1368. 
Presumptions of fact. Such are presumptions which do 
not compel a finding of the presumed fact but which 
warrant one when the basic fact has been proved. The 
trend has been to reject the classifications of presump
tions of "fact" and presumptions of "law". See In fer
ence. 
Presumptions of law. A presumption of law is one 
which, once the basic fact is proved and no evidence to 
the contrary has been introduced, compels a finding of 
the existence of the presumed fact. The presumption of 
law is rebuttable and in most cases the adversary intro
duces evidence designed to overcome it. The trend has 
been to reject the classifications of presumptions of 
"law" and presumptions of "fact." 
Procedural presumption. One which is rebuttable, 
which operates to require production of credible evi
dence to refute the presumption, after which the pre
sumption disappears. Maryland Cas. Co. v. Williams, 
C.AMiss., 377 F.2d 389, 394, 35 AL.R.3d 275. 
Rebuttable presumption. A presumption that can be 
overturned upon the showing of sufficient proof. In 
general, all presumptions other than conclusive pre
sumptions are rebuttable presumptions. Once evidence 
tending to rebut the presumption is introduced, the 
1186 
force of the presumption is entirely dissipated and the 
party with the burden of proof must come forward with 
evidence to avoid a directed verdict. Compare Conclu
sive presumptions, above. 
Statutory presumption. A presumption, either rebut
table or conclusive, which is created by statute in con
trast to a common law presumption; e.g. I.R.C. § 6062 
(individual's name on tax return is prima facie evidence 
of his authority to sign return). 
Presumption of death. A presumption which arises 
upon the disappearance and continued absence of a 
person from his customary location or home for an 
extended period of time, commonly 7 years, without any 
apparent reason for such absence. Magers v. Western & 
Southern Life Ins. Co., C.A.Mo., 335 S.W.2d 355. 
Presumption of innocence. A hallowed principle of 
criminal law to the effect that the government has the 
burden of proving every element of a crime beyond a 
reasonable doubt and that the defendant has no burden 
to. prove his innocence. It arises at the first stage of the 
criminal process but it is not a true presumption be
cause the defendant is not required to come forward 
with proof of his innocence once evidence of guilt is 
introduced to avoid a directed verdict of guilty. 
Presumption of innocence succinctly conveys the prin
ciple that no person may be convicted of a crime unless 
the government carries the burden of proving his guilt 
beyond a reasonable doubt but it does not mean that no 
significance at all may be attached to the indictment. 
U. S. v. Friday, D.C.Mich., 404 F.Supp. 1343, 1346. 
Presumption of legitimacy. Whenever it is established 
in an action that a child was born to a woman while she 
was the lawful wife of a specified man, the party assert
ing the illegitimacy of the child has the burden of 
producing evidence and the burden of persuading the 
trier of fact beyond reasonable doubt that the man was 
not the father of the child. Bernheimer v. First Nat!. 
Bank, 359 Mo. 1119, 225 S.W.2d 745; Model Code of 
Evidence, Rule 703. 
Presumption of survivorship. A presumption of fact, 
to the effect that one person survived another, applied 
for the purpose of determining a question of succession 
or similar matter, in a case where the two persons 
perished in the same catastrophe, and there are no 
circumstances extant to show which of them actually 
died first, except those on · which the presumption is 
founded, viz., differences of age, sex, strength, or physi
cal condition. 
Presumption of validity. In patent law, the holder of a 
patent is entitled to a statutory presumption of validity. 
Blonder-Tongue Laboratories, Inc. v. University of Illi
nois Foundation, 402 U.S. 313, 335, 338, 91 S.Ct. 1434, 
1447, 28 L.Ed.2d 788. 35 U.S.C.A § 282. 
Presumptive. Resting on presumption; created by or 
arising out of presumption; inferred; assumed; sup
posed; as, "presumptive" damages, evidence, heir, no
tice, or title. 
Presumptive evidence. Prima facie evidence or evi
dence which is not conclusive and admits of explanation 
or contradiction; evidence which must be received and

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1187 
treated as true and sufficient until and unless rebutted 
by other evidence, i.e., evidence which a statute says 
shall be presumptive of another fact unless rebutted. 
See Presumption; Prima facie evidence. 
Presumptive trust. Trust raised by implication of law 
and presumed always to have been contemplated by 
parties; intention as to which is to be found in nature of 
transaction but not expressed in deed or instrument of 
conveyance, and is thus distinguished from "construc
tive trust." Kollbaum v. K & K Chevrolet Inc., 196 Neb. 
555,244 N.W.2d 173, 174. Also called "Resulting trust." 
Pret Iprey/. In French law, a loan. A contract by 
which one of the parties delivers an article to the other, 
to be used by the latter, on condition of his returning, 
after having used it, the same article in nature or an 
equivalent of the same species and quality. 
Pret a interet Iprey Ii renterey/. Loan at interest. A 
contract by which one of the parties delivers to the other 
a sum of money, or commodities, or other movable or 
fungible things, to receive for their use a profit deter
mined in favor of the lender. 
Pret a usage Iprey Ii yuwsazh/. Loan to use. A con
tract by which one of the parties delivers an article to 
the other, to be used by the latter, the borrower agree
ing to return the specific article after having used it. A 
contract identical with the commodatum (q.v.) of the 
civil law. 
Pretax earnings. Net income before income taxes. 
Pret de consommation Iprey d;:) konsomasyown /. Loan 
for consumption. A contract by which one party deliv
ers to the other a certain quantity of things, such as are 
consumed in the use, on the undertaking of the borrow
er to return to him an equal quantity of the same 
species and quality. A contract identical with the mut
uum (q.v.) of the civil law. 
Pretend. To feign or simulate; to hold that out as real 
which is false or baseless. 
Prete-nom Ipretnowm /. One who lends his name. 
Pretense. See False pretenses. 
Preter legal Ipriyt;:)r liyg;:)l/. Not agreeable to law; 
exceeding the limits of law; not legal. 
Pretermission. The state of one who is pretermitted, as 
an heir or child of the testator. The act of omitting a 
child or heir from a will. 
Pretermission statute. Those laws of the various states 
which make provision for children and heirs who have 
been omitted from the will of the father or ancestor. 
Commonly the child takes the same share of the estate 
which he would have taken if the testator had died 
intestate unless the omission was intentional and not 
occasioned by accident or mistake. Nicholson v. Soren
sen, Alaska, 517 P.2d 766, 768. See Pretermitted heir. 
Pretermit Ipriyt;:)rmit/. To "pretermit" is to pass by, to 
omit or to disregard, e.g., failure of testator to mention 
his children in his will. 
PRE-TRIAL CONFERENCE 
Pretermitted heir Ipriyt;:)rmit;:)d er/. A child or other 
descendant omitted by a testator. Where a testator 
unintentionally fails to mention in his will, or make 
provision for, a child, either living at the date of the 
execution of the will or born thereafter, a statute may 
provide that such child, or the issue of a deceased child, 
shall share in the estate as though the testator had died 
intestate. In re Price's Estate, 56 Cal.App.2d 335, 132 
P.2d 485. See Pretermission statute. 
Pretext. Ostensible reason or motive assigned or as
sumed as a color or cover for the real reason or motive; 
false appearance, pretense. See False pretenses. 
In international law, a reason alleged as justificatory, 
but which is so only in appearance, or which is even 
absolutely destitute of all foundation. The name of 
"pretexts" may likewise be applied to reasons which are 
in themselves true and well-founded, but, not being of 
sufficient importance for undertaking a war [or other 
international act], are made use of only to cover ambi
tious views. 
Pretium Ipriysh(iy);:)m/. Lat. Price; cost; value; the 
price of an article sold. 
Pretium affectionis Ipriysh(iy);:)m ;:)fekshiyown;:)s/. An 
imaginary value put upon a thing by the fancy of the 
owner, and growing out of his attachment for the specif
ic article, its associations, his sentiment for the donor, 
etc. 
Pretium periculi Ipriysh(iy);:)m p;:)riky;:)lay/. The price 
of the risk, e.g., the premium paid on a policy of insur
ance; also the interest paid on money advanced on 
bottomry or respondentia. 
Pretium sepulchri Ipriysh(iy);:)m s;:)p�lkray/. A mortu
ary (q.v.). 
Pretium succedit in locum rei Ipriysh(iy);:)m s;:)ksiyd;:)t 
;:)n lowk;:)m riyay I. The price stands in the place of the 
thing sold. 
Pretorial court Ipr;:)toriy;:)l kort/. In the colony of Ma
ryland, formerly a court for the trial of capital crimes, 
consisting of the lord proprietor or his lieutenant-gener
al, and the council. Also called Pretorial. 
Pre-trial conference. Procedural device used prior to 
trial to narrow issues to be tried, to secure stipulations 
as to matters and evidence to be heard, and to take all 
other steps necessary to aid in the disposition of the 
case. Such conferences between opposing attorneys may 
be called at the discretion of the court. The actions 
taken at the conference are made the subject of an order 
which controls the future course of the action. Fed.R. 
Civil P. 16. See Pre-trial order; Summary trial. 
Criminal cases. At any time after the filing of the 
indictment or information the court upon motion of any 
party or upon its own motion may order one or more 
conferences to consider such matters as will promote a 
fair and expeditious trial. At the conclusion of a confer
ence the court shall prepare and file a memorandum of 
the matters agreed upon. No admissions made by the 
defendant or his attorney at the conference shall be used

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PRE-TRIAL CONFERENCE 
against the defendant unless the admissions are reduced 
to writing and signed by the defendant and his attorney. 
Fed.R.Crim.P. 17.1. 
Pre-trial discovery. Those devices which may be used 
by the parties to an action prior to trial to discover 
evidence and otherwise prepare for trial such as inter
rogatories, depositions, requests for admission of fact, 
etc. provided for under rules of procedure and statutes; 
e.g. Fed.R.Civil P. 26- 37. See Discovery. 
Pre-trial diversion. A system of recent origin by which 
certain defendants in criminal cases are referred to 
community agencies prior to trial while their criminal 
complaints or indictments are held in abeyance. The 
defendant may be given job training, counselling, and 
education. If he responds successfully within a specified 
period (e.g. 90 days, more or less), the charges against 
him are commonly dismissed. 
Pre-trial hearing. See Pre-trial conference. 
Pre-trial intervention. A program that diverts selected 
criminal defendants from the normal prosecution pro
cess in order that they can be rehabilitated and re
turned to the community as productive citizens with no 
criminal record. Upon successfully completing the PTL 
program the pending criminal charges are dismissed. 
See e.g. N.J.Court Rule 3:28. 
Pre-trial order. An order embodying the terms and 
stipulations agreed upon at the pre-trial conference or 
hearing. This order governs the conduct of the trial and 
binds the parties unless, for good cause shown, the trial 
judge modifies it. Fed.R.Civil P. 16. 
Prevail. To be or become effective or effectual, to be in 
force, to obtain, to be in general use or practice, to be 
commonly accepted or adopted; to exist. Atlantic Coast 
Line R. Co. v. Gamble, 155 Fla. 678, 21 So.2d 348, 350. 
To succeed; to win. 
Prevailing party. The party to a suit who successfully 
prosecutes the action or successfully defends against it, 
prevailing on the main issue, even though not necessar
ily to the extent of his original contention. The one in 
whose favor the decision or verdict is rendered and 
judgment entered� Jordan v. Elizabethan Manor, 181 
Mont. 424, 593 P.2d 1049, 1055. This may be the party 
prevailing in interest, and not necessarily the prevailing 
person. To be such does not depend upon the degree of 
success at different stages of the suit, but whether, at 
the end of the suit, or other proceeding, the party who 
has made a claim against the other, has successfully 
maintained it. 
As used in Federal Civil Procedure Rule 54(d), which 
provides that costs shall be allowed as of course to 
prevailing party unless court otherwise directs, "prevail
ing party" means a party who has obtained some relief 
in an action, even if that party has not sustained all of 
his or her claims. First Commodity Traders, Inc. v. 
Heinold Commodities, Inc., C.A.Ill., 766 F.2d 1007, 1015. 
The interpretation of this term is important as re
gards attorney fees in that by. statute in certain cases 
(e.g., civil rights) attorney fees are awarded to the pre-
1188 
vailing party. See e.g. , 42 U.S.C.A. § 1988. See also 
Equal Access to Justice Act. 
Prevarication /pr�vrer�keysh�m/. In the civil law, the 
acting with unfaithfulness and want of probity; deceit
ful, crafty, or unfaithful conduct; particularly, such as is 
manifested in concealing a crime. 
In English law, a collusion between an informer and a 
defendant, in order to a feigned prosecution. Any secret 
abuse committed in a public office or private commis
sion, as by an advocate betraying a client; willful con
cealment or misrepresentation of truth, by giving 
evasive or equivocating evidence. 
Prevent. To hinder, frustrate, prohibit, impede, or pre
clude; to obstruct; to intercept. Orme v. Atlas Gas and 
Oil Co., 217 Minn. 27, 13 N.W.2d 757, 761. To stop or 
intercept the approach, access, or performance of a 
thing. See Injunction; Restraining order. 
Prevention. In the civil law, the right of a judge to take 
cognizance of an action over which he has concurrent 
jurisdiction with another judge. 
In canon law, the right which a superior person or 
officer has to lay hold of, claim, or transact an affair 
prior to an inferior one, to whom otherwise it more 
immediately belongs. 
Preventive detention. Confinement imposed generally 
on a defendant in criminal case who has threatened to 
escape or otherwise violate the law while awaiting trial 
or disposition, or of a mentally ill person who may harm 
himself or others. See e.g. 18 U.S.C.A. § 3142. The 
term is also used to describe the improper use of bail. 
See also Commitment; Preventive justice. 
Preventive injunction. See Restraining order. 
Preventive justice. The system of measures taken by 
government with reference to the direct prevention of 
crime. It generally consists in obliging those persons 
whom there is probable ground to suspect of future 
misbehavior to give full assurance to the public that 
such offense as is apprehended shall not happen, by 
requiring pledges or securities to keep the peace, or for 
their good behavior (e.g. peace bonds). 
Preventive remedy. See Injunction; Restraining order. 
Previous. Antecedent; prior; before. Sometimes limit
ed in meaning to "next prior to" or "next preceding". 
Previously taxed income (PTI). Before the Subchapter 
S Revision Act of 1982, the undistributed taxable income 
of an S corporation was taxed to the shareholders as of 
the last day of the corporation's tax year and usually 
could be withdrawn by the shareholders without tax 
consequences at some later point in time. The role of 
PTI has been taken over by the accumulated adjust
ments account. 
Price. The cost at which something is obtain ed. Some
thing which one ordinarily accepts voluntarily in ex
change for something else. The consideration given for 
the purchase of a thing. Amount which a prospective 
seller indicates as the sum for which he is willing to sell; 
market value. The amount of money given or set as the

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1189 
amount to be given as a consideration for the sale of a 
specified thing. The term may be synonymous with 
cost, and with value, as well as with consideration, 
though price is not always identical either with consid
eration. The consideration given for the purchase of a 
thing. Amount which a prospective seller indicates as 
the sum for which he is willing to sell; market value. 
The term may be synonymous with cost, and with value, 
as well as with consideration, though price is not always 
identical either with consideration. 
See also Asking price; Fair market value; Going price; 
Liquidation price; Open price term. 
Support price. A minimum price set by the government 
for a particular agricultural raw commodity. For exam
ple, the support price of wheat may be set at, say $2 per 
bushel. That means that the farmer never has to sell 
his or her wheat below that support price. See also 
Parity. 
Target price. Prices set by the government for particu
lar agricultural commodities such as wheat and corn. If 
the actual market price falls below the target price, 
farmers get a subsidy from the government for the 
difference. See Parity. 
Unit pricing. Pricing of food products expressed in a 
well-known unit such as ounces or pounds. 
Price current. A list or enumeration of various articles 
of merchandise, with their prices, the duties, if any, 
payable thereon, when imported or exported, with the 
drawbacks occasionally allowed upon their exportation, 
etc. 
Price discrimination. Exists when a buyer pays a price 
that is different from the price paid by another buyer 
for an identical product or service. Price discrimination 
is prohibited if the effect of this discrimination may be 
to lessen SUbstantially or injure competition, except 
where it was implemented to dispose of perishable or 
obsolete goods, was the result of differences in costs 
incurred, or was given in good faith to meet an equally 
low price of a competitor. Clayton Act, § 2. See also 
Predatory intent; Robinson-Patman Act. 
Price earnings ratio. The market price per share of a 
company's common stock divided by the company's an
nual earnings per share. For example, a stock selling 
for $50 per share, and earnings of $5 per share, is said to 
be selling at a price earnings ratio of 10 to 1. 
Price-fixing. A combination formed for the purpose of 
and with the effect of raising, depressing, fixing, peg
ging, or stabilizing the price of a commodity. Optivi
sion, Inc. v. Syracuse Shopping Center Associates, D.C. 
N.Y., 472 F.Supp. 665, 676. The cooperative setting of 
price levels or range by competing firms, which would 
otherwise be set by natural market forces. Such agree
ments are in violation of the Sherman Antitrust Act. 
Price-fixing within intent of Sherman Act is either hori
zontal (dealing with arrangements among competitors, 
as between competing retailers) or vertical (attempting 
to control resale price, as agreements between manufac-
PRIMA FACIE CASE 
turer and retailer). Knuth v. Erie--Crawford Dairy Co
op. Ass'n, D.C.Pa., 326 F.Supp. 48, 53. 
Minimum fee schedules proposed and enforced by 
state bar associations are · within orbit of prohibited 
price-fixing under Sherman Act. Goldfarb v. Virginia 
State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572. 
See also Horizontal price-fixi ng; Peg; Per se violations; 
Predatory intent; Resale price maintenance; Vertical 
price-fixing contract. 
Price index. A number representing average prices as a 
percent of the average prevailing at some other time 
(called the base or base year). 
Price leadership. A market condition in which a leader 
in the industry establishes a price and the others in the 
field follow suit by adopting that price as their own. 
Price leadership implies a set of industry practices or 
customs under which list price changes are normally 
announced by a specific firm accepted as the leader by 
others, who follow the leader's initiatives. Such practic
es have been held to not be in violation of the antitrust 
laws in the absence of a showing of confederated action 
or an intent to monopolize. United States v. United 
States Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 
343; United States v. International Harvester Co., 274 
U.S. 693, 47 S.Ct. 748, 71 L.Ed. 1302. 
Price supports. A device used generally by the federal 
government to keep prices (normally commodity prices) 
from falling below a predesignated level by such means 
as loans, subsidies, and government purchases. See also 
Parity; Price. 
Priest. A sacerdotal minister of a church. A person in 
the second order of the ministry, as distinguished from 
bishops and deacons. 
Priest-penitent privilege. In evidence, the recognition 
of the seal of confession which bars testimony as to the 
contents of a communication from one to his confessor. 
Nearly all states provide for this privilege by statute. 
Primre impressionis Ipraymiy impreshiy6wn;}s/. A case 
primre impressionis (of the first impression) is a case of a 
new kind, to which no established principle of law or 
precedent directly applies, and which must be decided 
entirely by reason as distinguished from authority. See 
First impression case. 
Primre preces Ipraymiy priysiyz/. Lat. In the civil law, 
an imperial prerogative by which the emperor exercised 
the right of naming to the first prebend that became 
vacant after his accession, in every church of the em
pire. 
Prima facie Ipraym;} feyshiy(iy)/. Lat. At first sight; 
on the first appearance; on the face of it; so far as can 
be judged from the first disclosure; presumably; a fact 
presumed to be true unless disproved by some evidence 
to the contrary. State ex reI. Herbert v. Whims, 68 
Ohio App. 39, 38 N.E.2d 596, 599, 22 0.0. 11 0. See also 
Presumption. 
Prima facie case. Such as will prevail until contradict
ed and overcome by other evidence. Pacific Telephone

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PRIMA FACIE CASE 
& Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d 942, 
947. A case which has proceeded upon sufficient proof 
to that stage where it will support finding if evidence to 
contrary is disregarded. In re Hoagland 's Estate, 126 
Neb. 377, 253 N.W. 416. 
A prima facie case consists of sufficient evidence in 
the type of case to get plaintiff past a motion for 
directed verdict in a jury case or motion to dismiss in a 
nonjury case; it is the evidence necessary to require 
defendant to proceed with his case. White v. Abrams, 
C.A.Cal., 495 F.2d 724, 729. Courts use concept of 
"prima facie case" in two senses: (1) in sense of plaintiff 
producing evidence sufficient to render reasonable a 
conclusion in favor of allegation he asserts; this means 
plaintiffs evidence is sufficient to allow his case to go to 
jury, and (2) courts use "prima facie" to mean not only 
that plaintiffs evidence would reasonably allow conclu
sion plaintiff seeks, but also that plaintiffs evidence 
compels such a conclusion if the defendant produces no 
evidence to rebut it. Husbands v. Com. of Pa., D.C.Pa., 
395 F.Supp. 1107, 1139. 
Prima facie evidence. Evidence good and sufficient on 
its face. Such evidence as, in the judgment of the law, is 
sufficient to establish a given fact, or the group or chain 
of facts constituting the party's claim or defense, and 
which if not rebutted or contradicted, will remain suffi
cient. Evidence which, if unexplained or uncontradict
ed, is sufficient to sustain a judgment in favor of the 
issue which it supports, but which may be contradicted 
by other evidence. State v. Haremza, 213 Kan. 201, 515 
P.2d 1217, 1222. 
That quantum of evidence that suffices for proof of a 
particular fact until the fact is contradicted by other 
evidence; once a trier of fact is faced with conflicting 
evidence, it must weigh the prima facie evidence with 
all of the other probative evidence presented. Godesky 
v. Provo City Corp., Utah, 690 P.2d 541, 547. Evidence 
which, standing alone and unexplained, would maintain 
the proposition and warrant the conclusion to support 
which it is introduced. An inference or presumption of 
law, affirmative or negative of a fact, in the absence of 
proof, or until proof can be obtained or produced to 
overcome the inference. 
See also Presumptive evidence. 
Prima facie tort. The infliction of intentional harm, 
resulting in damage, without excuse or justification, by 
an act or series of acts which would otherwise be lawful. 
Cartwright v. Golub Corp., 51 A.D.2d 407, 381 N.Y.S.2d 
901, 902. See also Strict liabili ty. 
Primage /praym� j/. In old mercantile law, a small 
allowance or compensation payable to the master and 
mariners of a ship or vessel; to the former for the use of 
his cables and ropes to discharge the goods of the mer
chant; to the latter for lading and unlading in any port 
or haven. It is no longer, however, a gratuity to the 
master, unless especially stipulated; but it belongs to 
the owners or freighters, and is nothing but an increase 
of. the freight rate. 
1190 
Prima pars requitatis requalitas /praym� parz 
ekw�teyt�s �kw61�tres/. The radical element of equity is 
equality. 
Primary. First; principal; chief; leading. First in or
der of time, or development, or in intention. As to 
primary Conveyance; Election; Obligation; and Vein, see 
those titles. 
Primary activity. Concerted action such as a strike or 
picketing directed against the employer with whom it 
has a dispute. Compare, secondary activity. 
Primary allegation. The opening pleading in a suit in 
the ecclesiastical court. It is also called a "primary 
plea." 
Primary beneficiary. In life insurance, the person 
named in the policy who is to receive the proceeds on 
the death of the insured if such person is alive. If 
deceased, the proceeds are payable to a secondary bene
ficiary also designated as such in the policy. 
Primary boycott. Action by a union by which it tries to 
induce people not to use, handle, transport or purchase 
goods of an employer with which the union has a griev
ance. See also Boycott. 
Primary disposal of the soil. In acts of congress admit
ting territories as states, and providing that no laws 
shall be passed int�rfering with the primary disposal of 
the soil, this means the disposal of it by the United 
States government when it parts with its title to private 
persons or corporations acquiring the right to a patent 
or deed in accordance with law. 
Primary election. A preliminary election for the nomi
nation of candidates for office or of delegates to a party 
convention, designed as a substitute for party conven
tions. Such elections are classified as closed or open 
depending on whether or not tests of party affiliation 
are required. See also Closed primary; Election. 
Primary evidence. Primary evidence means original or 
first-hand evidence; the best evidence that the nature of 
the case admits of; the evidence which is required in the 
first instance, and which must fail before secondary 
evidence can be admitted. That evidence which the 
nature of the case or question suggests as the proper 
means of ascertaining the truth. It is the partiCUlar 
means of proof which is the most natural and satisfac
tory of which the case admits, and includes the best 
evidence which is available to a party and procurable 
under the existing situation, and all evidence falling 
short of such standard, and which in its nature suggests 
there is better evidence of the same fact, is "secondary 
evidence." See also Best evidence. 
Primary insurance coverage. Coverage whereby, un
der terms of policy, liability attaches immediately upon 
happening of occurrence that gives rise to liability. 
Olympic Ins. Co. v. Employers Surplus Lines Ins. Co., 
126 C.A.3d 593, 178 Cal.Rptr. 908, 910. 
Primary jurisdiction. Doctrine of "primary jurisdic
tion" provides that where the law vests in an adminis
trative agency the power to decide a controversy or treat

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1191 
an issue, the courts will refrain from entertaining the 
case until the agency has fulfilled its statutory obli
gation. Sunflower Elec. Co-op., Inc. v. Kansas Power 
and Light Co., C.A.Kan., 603 F.2d 791, 796. The doc
trine does not involve jurisdiction in the technical sense, 
but it is a doctrine predicated on an attitude of judicial 
self-restraint and is applied when the court feels that 
the dispute should be handled by an administrative 
agency created by the legislature to deal with such 
problems. Kerr v. Department of Game, 14 Wash.App. 
427, 542 P.2d 467, 469. See also Exhaustion of adminis
trative remedies. 
Primary liability. In commercial law, a description of 
the nature of a signer's engagement, i.e., his or her 
contract liability, on an instrument which means that 
he or she is obligated to pay without someone else 
refusing to pay. Ordinarily, the liability of a maker or 
acceptor is primary. 
Primary market. In finance, the market where the 
initial sale by the issuer of new securities occurs; in 
contrast with secondary market where previously issued 
securities are traded. Compare Secondary market. 
Primary obligation. In contract law, the foundational 
requirement of a contracting party from which other 
obligations may spring; e.g. in a contract of sale, the 
buyer's primary obligation is to purchase the goods. 
Primary powers. The principal authority given by a 
principal to his agent. It differs from "mediate powers." 
Primary purpose. That which is first in intention; 
which is fundamental. The principal or fixed intention 
with which an act or course of conduct is undertaken . 
Primate. A chief ecclesiastic; an archbishop who has 
jurisdiction over his province, or one of several metro
politans presiding over others. Exarch comes nearest to 
it in the Greek church. Thus the archbishop of Canter
bury is styled "Primate of all England ;" the archbishop 
of York is "Primate of England ." 
Prime. To stand first or paramount; to take precedence 
or priority of; to outrank. 
Prime contractor. The party to a building contract who 
is charged with the total construction and who enters 
into sub-contracts for such work as electrical, plumbing 
and the like. Also called "general contractor." 
Prime cost. The true price paid for goods upon a bona 
fide purchase. 
Prime interest rate. Usually defined as the lowest rate 
of interest from time to time charged by a specific 
lender to its most credit worthy customers for short 
term unsecured loans. The prime rate is often used as 
the floor or base rate for setting interest rates on other 
loans (e.g. consumer loans). 
Prime maker. The person who signs a negotiable in
strument such as a note and becomes primarily liable 
thereon. 
Prime minister. The name given to the head of the 
executive branch of parliamentary government, serving 
PRIMUM DECRETUM 
under the Chief of State who is usually a monarch. In 
England, he is the head of the cabinet, and usually holds 
the office of the First Lord of the Treasury. The office 
was unknown to the law until 1906, when the prime 
minister was accorded a place in the order of prece
dence. By constitutional custom the prime minister is a 
member of the House of Commons and selected by the 
Queen. 
Primer. A law French word, signifying first; primary. 
Primer election /praym;)r ;)leksh;)n/. A term used to 
signify first choice; e.g., the right of the eldest co-parcen
er to first choose a purpart. 
Primer fine /praym;)r fayn/. On suing out the writ or 
prrecipe called a "writ of covenant," there was due to the 
crown, by ancient prerogative, a primer fine, or a noble 
for every five marks of land sued for. That was one
tenth of the annual value. 
Primer seisin /praym;)r siyz;)n/. See Seisin. 
Prime serjeant /praym sarj;)nti. In English law, the 
king's first serjeant at law. 
Prime tenant. See Tenant. 
Primicerius /praym;)sir(i)y;)s/. In old English law, the 
first of any degree of men. 
Primitire /pr;)mishiyiy/. In old English law, first fruits; 
the first year's whole profits of a spiritual preferment. 
Primitive obligation /prim;)d;)v obl;)geysh;)n/. See Obli
gation. 
Primo beneficio /praymow ben;)fish(iy)ow/. Lat. A 
writ directing a grant of the first benefice in the sover
eign's gift. 
Primo executienda est verbi vis, ne sermonis vitio 
obstruatur oratio, sive lex sine argumentis / pray
mow eks;)kyuwshiy€md;) est v�rbay vis, niy s;)rmown;)s 
vish(iy)ow obstruweyd;)r ;)reysh(iy)ow, sayviy leks sayniy 
argy;)ment;)s/. The full meaning of a word should be 
ascertained at the outset, in order that the sense may 
not be lost by defect of expression, and that the law be 
not without reasons [or arguments]. 
Primogeniture /praym;)jen;)ty;)r/. The state of being 
the first-born among several children of the same par
ents; seniority by birth in the same family. The superi
or or exclusive right possessed by the eldest son, and 
particularly, his right to succeed to the estate of his 
ancestor, in right of his seniority by birth, to the exclu
sion of younger sons. 
Primogenitus /praym;)jen;)t;)s/. Lat. In old English 
law, a first-born or eldest son. 
Primo venienti /praymow veniyentay /. Lat. To the 
one first coming. An executor anciently paid debts as 
they were presented, whether the assets were sufficient 
to meet all debts or not. 
Primum decretum /praym;)m d;)kriyt;)m/. Lat. In the 
canon law, the first decree; a preliminary decree grant
ed on the non-appearance of a defendant, by which the 
plaint iff was put in possession of his goods, or of the

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PRIMUM DECRETUM 
thing itself which was demanded. In the courts of 
admiralty, this name was given to a provisional decree. 
Prince. In a general sense, a sovereign; the ruler of a 
nation or state. More particularly, the son of a king or 
emperor, or the issue of a royal family; as princes of the 
blood. The chief of any body of men. In English law, 
the oldest son of the reigning sovereign is invested as 
the Prince of Wales. 
Princeps /prinsep s/ . Lat. In the civil law, the prince; 
the emperor. 
Princeps et respublica ex justa causa possunt rem 
meam auferre /prin(t)seps et r;}zp�bl;}k;} eks j�st;} koz;} 
pos;}nt rem miy;}m ofehriy /. The prince and the com
monwealth, for a just cause, can take away my property. 
Princeps legibus solutus est /prinseps liyj;}b;}s 
s�l(y)uwt�s est/. The emperor is released from the laws; 
is not bound by the laws. 
Princeps mavult domesticos milites quam stipendiar
ios bellicis opponere casibus / prinseps meyv�lt 
d;}mest;}kows mibtiyz kwrem st�pendiyeriyows hel;}s;}s 
;}pown�riy keys�b�s/. A prince, in the chances of war, 
had better employ domestic than stipendiary troops. 
Princess royal /prins;}s roy;}l/. In English law, the 
eldest daughter of the sovereign . 
Principal, adj. Chief; leading; most important or con
siderable; primary; original. Highest in rank, authori
ty, character, importance, or degree. 
As to principal Challenge; Contract; Obligation; Office; 
and Vein, see those titles. 
Principal establishment. In the law concerning domi
cile, the principal domestic establishment. Mosely v. 
Dabezies, 142 La. 256, 76 So. 705, 706. See Domicile; 
Resident. 
Principal fact. In the law of evidence, a fact sought and 
proposed to be proved by evidence of other facts (termed 
"evidentiary facts") from which it is to be deduced by 
inference. A fact which is the principal and ultimate 
object of an inquiry, and respecting the existence of 
which a definite belief is required to be formed. 
Principal, n. The source of authority or right. A super
intendent, as of a school. 
An amount of money that has been borrowed or 
invested. The capital sum of a debt or obligation, as 
distinguished from interest or other additions to it. An 
amount on which interest is charged or earned. 
Amount of debt, not including interest. The face value 
of a note, bond, mortgage, etc. that must be repaid as 
distinct from the interest that is paid thereon. Capital 
sum placed at interest, due as a debt, or use as a fund, as 
distinguished from interest or profit. Klitgaard v. 
Gaines, Tex.Civ.Ap p., 479 S.W.2d 765, 770. 
See also Coprincipal; Undisclosed principal. 
Criminal law. One who is present at and participates in 
the crime charged or who procures an innocent agent to 
commit the crime. State v. Furr, 292 N.C. 711, 235 
S.E.2d 193, 198. A chief actor or perpetrator, or an 
1192 
aider and abettor actually or constructively present at 
the commission of the crime, as distinguished from an 
"accessory." At common law, a principal in the first 
degree is he that is the actor or absolute perpetrator of 
the crime; and, in the second degree, he who is present, 
aiding and abetting the principal in the first degree. 
The distinction between principals in the first and sec
ond degrees has been abrogated in the Model Penal Code 
and by many state codes. 
A "principal" differs from an "accessory before the 
fact" only in the requirement of presence during com
mission of crime. Huff v. State, 23 Md.App. 211, 326 
A.2d 198, 201. 
Whoever commits an offense against the United 
States or aids, abets, counsels, commands, induces or 
procures its commission, is punishable as a principal. 
Also, whoever willfully causes an act to be done which if 
directly performed · by him or another would be an 
offense against the United States, is punishable as a 
principal. 18 U.S.C.A. § 2. 
Principal in the first degree. A principal in the first 
degree may simply be defined as the criminal actor; the 
one who actually commits a crime, either by his own 
hand, or by an inanimate agency, or by an innocent 
human agent. Johnson v. State, 303 Md. 487, 495 A.2d 
1, 12. He is the one who, with the requisite mental 
state, engages in the act or omission concurring with the 
mental state which causes the criminal result. 
Principal in the second degree. To be a principal in 
the second degree, one must be present at the commis
sion of a criminal offense and aid, counsel, command, or 
encourage the principal in the first degree in the com
mission of that offense. This requirement of presence 
may be fulfilled by constructive presence. A person is 
constructively present when he is physically absent from 
the situs of the crime but aids and abets the principal in 
the first degree at the time of the offense from some 
distance. 
Investments. The person for whom a broker executes an 
order, or a dealer buying or selling for his own account. 
The term "principal" may also refer to a person's capital 
or to the face amount of a bond. 
Law of agency. The term "principal" describes one who 
has permitted or directed another (i.e. agent or servant) 
to act for his benefit and subject to his direction and 
control, such that the acts of the agent become binding 
on the principal. Principal includes in its meaning the 
term "master", a species of principal who, in addition to 
other control, has a right to control the physical conduct 
of the species of agents known as servants, as to whom 
special rules are applicable with reference to harm 
caused by their physical acts. 
If, at the time of a transaction conducted by an agent, 
the other party thereto has notice that the agent is 
acting for a principal and of the principal's identity, the 
principal is a disclosed principal. If the other party has 
notice that the agent is or may be acting for a principal 
but has no notice of the principal's identity, the princi
pal for whom the agent is acting is a partially disclosed

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1193 
principal. If the other party has no notice that the 
agent is acting for a principal, the one for whom he acts 
is an undisclosed principal. Restatement, Second, Agen
cy, § 4. 
Law of guaranty and suretyship. The person primarily 
liable, for whose performance of his obligation the guar
antor or surety has become bound. 
Principal and surety. Relationship between accommo
dation maker and party accommodated on promissory 
note is that of "principal and surety." Putney Credit 
Union v. King, 130 Vt. 86, 286 A.2d 282, 284. 
Trust law. Property as opposed to income. The term is 
often used to designate the corpus of a trust. If, for 
example, G places real estate in trust with income 
payable to A for life and the remainder to B upon A's 
death, the real estate is the principal or corpus of the 
trust. See also Kentucky Rule. The majority of states 
have adopted the Uniform Principal and Income Act. 
Vice principal. A vice principal is an employee to whom 
the master delegates those absolute or nondelegable 
duties cast upon a master for protection of his employ
ees, and who is in charge of the master's business or any 
department thereof, and whose duties are exclusively 
supervision, direction and control of the work of subor
dinate employees engaged therein, whose duty it is to 
obey him. Haynie v. Haynie, Okl., 426 P.2d 717, 724. 
Vice principal is servant who, in addition to his authori
ty to direct and supervise work of those under him, has 
authority to hire and discharge a subordinate servant. 
Sartain v. Southern Nat. Life Ins. Co., Tex.Civ.App ., 364 
S.W.2d 245, 252. 
Principalis Iprins::lpeyl::ls/. Lat. Principal; a principal 
debtor; a principal in a crime. 
Principalis debet semper excuti antequam pervenia
tur ad fideijussores Iprins::lpeyi::ls deb::lt semp::lr 
::Ikskyuwtay rent::lkw::lm p::lrvEmiyeyt::lr ret faydi
yayj::lsoriyz/. The principal should always be exhausted 
before coming upon the sureties. 
Principal residence. The residence (which may be a 
single family home, trailer, condominium, or houseboat) 
where the taxpayer resides most of the time. For tax 
purposes, capital gains may be deferred on the sale of 
the taxpayer's principal residence if a new residence is 
purchased within a certain period of time. 
Principia data sequuntur concomitantia Iprinsip(i)Y::l 
deyt::l s::lkw�nt::lr k::lnkom::ltrensh(iY)::I/. Given principles 
are followed by their concomitants. 
Principia probant, non probantur Iprinsip(i)Y::l 
prowb::lnt, non pr::lbrent::lr/. Principles prove; they are 
not proved. Fundamental principles require no proof. 
Principiis obsta IprinsipiY::ls obstey/. Withstand begin
nings; oppose a thing in its early stages, if you would do 
so with success. 
Principiorum non est ratio Iprinsipiyor::lm non est 
reysh(iy)ow/. There is no reasoning of principles; no 
argument is required to prove fundamental rules. 
PRIORITY 
Principium est potissima pars cujusque rei 
IprinsipiY::lm est p::ltis::lm::l parz k::lj�skwiy riyay/. The 
principle of anything is its most powerful part. 
Principle. A fundamental truth or doctrine, as of law; a 
comprehensive rule or doctrine which furnishes a basis 
or origin for others; a settled rule of action, procedure, 
or legal determination. A truth or proposition so clear 
that it cannot be proved or contradicted unless by a 
proposition which is still clearer. That which consti
tutes the essence of a body or its constituent parts. 
That which pertains to the theoretical part of a science. 
Printers Ink Statute. A model statute drafted in 1911 
and adopted with some variations in a number of states 
making it a misdemeanor to advertise a representation 
that is untrue, deceptive or misleading. 
Prior IpraY::lr/. Lat. The former; earlier; preceding; 
preferable or preferred. 
Prior, n. The chief of a convent; next in dignity to an 
abbot. 
Prior, adj. Earlier; elder; preceding; superior in rank, 
right, or time; as, a prior lien, mortgage, or judgment. 
Prior art. In patent law, includes any relevant knowl
edge, acts, descriptions and patents which pertain to, but 
predate, invention in question. Mooney v. Brunswick 
Corp., C.A.Wis., 663 F.2d 724, 733. Anything in tangible 
form that may properly be relied on by patent office in 
patent cases in support of rejection on matter of sub
stance, not form, of claim in pending application for 
patent. Borden, Inc. v. Occidental Petroleum Corp., 
D.C.Tex., 381 F.Supp. 1178, 1203. Prior art may also be 
relied on by a court to hold a patent claim invalid, i.e., 
not novel or not unobvious. 35 U.S.C.A. § 102. 
Prior creditor. Generally, the creditor who is accorded 
priority in payment from the assets of his debtor. See 
Preferential debts; Preferred creditor. 
Prior inconsistent statements. In evidence, prior 
statements made by the witness which contradict state
ments made on the witness stand may be introduced to 
impeach the witness after a foundation has been laid 
and an opportunity given to the witness to affirm or 
deny whether such prior statements were made. Such 
impeachment may be made through the witness himself 
or through another witness who heard the prior state
ments or by means of inconsistent prior depositions 
(Fed.R.Civil P. 32(a)). Such prior inconsistent state
ments are not admissible to prove the truth of the 
matter asserted but only to impeach the credibility of 
the witness. See Fed.Evid.R. 613(b). See also Declara
tion (Declaration against interest); Imp eachment. 
Priori petenti Iprayoray p::ltentay/. To the person first 
applying. In probate practice, where there are several 
persons equally entitled to a grant of administration 
(e.g., next of kin of the same degree), the rule of the 
court is to make the grant priori petenti, to the first 
applicant. 
Priority. Precedence, going before. A legal preference 
or precedence. The relative ranking of competing

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PRIORITY 
claims to the same property. When two persons have 
similar rights in respect of the same subject-matter, but 
one is entitled to exercise his right to the exclusion of 
the other, he is said to have priority. The order in 
which claims may be satisfied out of the sale of real 
property or other assets (see e.g. Mortgage (First mort
gage). See also Preferential debts. 
In bankruptcy, refers to secured claims that by statute 
receive more favorable treatment than other unsecured 
claims. In a Bankruptcy Code Chapter 7 distribution, 
priority claims must be paid first. In a Chapter 11 plan, 
priority claims must be paid in full. 
Priority of liens. Liens are ranked in the order in 
which they are perfected and those which are perfected 
first are said to be priority liens. For priority of securi
ty interests, see U.C.C. § 9-301 et seq. 
Prior jeopardy. See Jeopardy. 
Prior lien. This term commonly denotes a first or 
superior lien, and not one necessarily antecedent in 
time. 
Prior petens Ipray;}r ped:mzl. The person first apply
ing. 
Prior restraint. A system of "prior restraint" is any 
scheme which gives public officials the power to deny 
use of a forum in advance of its actual expression. 
Sixteenth of September Planning Committee, Inc. v. City 
and County of Denver, Colo., D.C.Colo., 474 F.Supp. 
1333, 1338. In constitutional law, the First Amend
ment, U.S.C onst., prohibits the imposition of a restraint 
on a publication before it is published. The person 
defamed is left to his remedy in libel. Near v. Minneso
ta, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. Any 
system of prior restraints of expression bears a heavy 
presumption against its constitutional validity, and the 
Government carries a heavy burden of showing justifica
tion for imposition of such a restraint. New York Times 
Co. v. U.S., 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822. 
Prior restraints on speech and publication are the 
most serious and least tolerable . infringement on First 
Amendment Rights. Nebraska Press Association v. 
Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 
683. Three exceptions are recognized: a publication 
creating a "clear and present danger" to the country, 
Schenck v. U.S., 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 
L.Ed. 470; obscene pUblications, and publications which 
invade the zone of personal privacy. 
A prohibited prior restraint is not limited to the 
suppression of a thing before it is released to the public; 
rather, an invalid prior restraint is an infringement 
upon constitutional right to disseminate matters that 
are ordinarily protected by the First Amendment with
out there first being a judicial determination that the 
material does not qualify for First Amendment protec
tion. State v. I, A Woman-Part 11, 53 Wis.2d 102, 191 
N.W.2d 897, 902, 903. 
See also Censor; Censorship. 
Prior tempore potior jure Ip ray�r temp�riy powsh(iy)�r 
juriy I. He who is first in tiine is preferred in right. 
1194 
Prior use doctrine. Between two public bodies, proper
ty already devoted to a public use may not be taken for 
another public use in absence of express legislative 
authority. City of Miami v. Florida East Coast Ry. Co., 
Fla.App., 286 So.2d 247, 250. 
Prisage Iprayz;}j/. An ancient hereditary revenue of the 
crown, consisting in the right to take a certain quantity 
from cargoes of wine imported into England. In Edward 
I's reign it was converted into a pecuniary duty called 
"butlerage." 
Prise Ipriyzl. Fr. In French law, prize; captured prop
erty. 
Prisel en auter lieu Ipriyzel on owtey ly'llw/. L. Fr. A 
taking in another place. A plea in abatement in the 
action of replevin. 
Prison. A public building or other place for the confine
ment of persons, whether as a punishment imposed by 
the law or otherwise in the course of the administration 
of justice. A state or federal correctional institution for 
incarceration of felony offenders for terms of one year or 
more. The words "prison" and "penitentiary" are used 
synonymously to designate institutions for the imprison
ment of persons convicted of the more serious crimes, as 
distinguished from reformatories and county or city 
jails. See also Jail. 
Prison breaking, or breach. The common-law offense 
of one who, being lawfully in custody, escapes from the 
place where he is confined, by the employment of force 
and violence. This offense is to be distinguished from 
"rescue" (q. v.), which is a deliverance of a prisoner from 
lawful custody by a third person, and from "escape" 
which is an unauthorized departure of a prisoner from 
legal custody without the use of force. The trend how
ever of modern statutes is to abandon these common-law 
distinctions based upon the presence or absence of force, 
and substitute other factors to determine the grade of 
the offense; with "prison breaking" generally referring 
to escaping from prison or jail by any means. See e.g. 
18 U.S.C.A. § 751 et seq. 
Prisoner. One who is deprived of his liberty. One who 
is kept against his will in confinement or custody in a 
prison, penitentiary, jail, or other correctional institu
tion, as a result of conviction of a crime or awaiting 
trial. 
Prisoner at the bar. An accused person, while on trial 
before the court, is so called. One accused of crime, who 
is actually on trial, is in legal effect a "prisoner at the 
bar," notwithstanding he has given bond for his appear
ance at the trial. He is a "prisoner" if held in custody 
either under bond or other process of law, or when 
physically held under arrest, and when actually on trial 
he is a "prisoner at the bar." 
Prist /prist/. L. Fr. Ready. In the old forms of oral 
pleading, this term expressed a tender or joinder of 
issue. 
Prius vitiis laboravimus, nunc legibus Ipray�s 
vishiy�s lreb�reyv�m;}s, n�IJk liyj;}b�s/. We labored first 
with vices, now with laws.

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1195 
Privacy laws. Those federal and state statutes which 
prohibit an invasion of a person's right to be left alone 
(e.g. to not be photographed in private), and also restrict 
access to personal information (e.g. income tax returns, 
credit reports); and overhearing of private communica
tions (e.g. electronic surveillance). Some provide for 
equitable relief in the form of injunction to prevent the 
invasion of privacy while others specifically call for 
money damages and some provide for both legal and 
equitable protection. See e.g. Fair Credit Reporting Act 
(15 U.S.C.A. § 1681n-p). See also Privacy, right of. 
The federal Privacy Act (5 U.S.C.A. § 552a) provides 
for making known to the public the existence and char
acteristics of all personal information systems kept by 
every Federal agency. The Act permits an individual to 
have access to records containing personal inf ormation 
on that individual and allows the individual to control 
the transfer of that information to other Federal agen
cies for nonroutine uses. The Act also requires all 
Federal agencies to keep accurate accountings of trans
fers of personal records to other agencies and outsiders, 
and to make the accountings available to the individual. 
The Act further provides for civil remedies for the 
individual whose records are kept or used in contraven
tion of the requirements of the Act. 
Breach of privacy is knowingly and without lawful 
authority: (a) Intercepting, without the consent of the 
sender or receiver, a message by telephone, telegraph, 
letter or other means of private communications; or (b) 
Divulging, without the consent of the sender or receiver, 
the existence or contents of such message if such person 
knows that the message was illegally intercepted, or if 
he illegally learned of the message in the course of 
employment with an agency in transmitting it. Kansas 
Criminal Code 21-4002. See Eavesdropping; Wiretap
ping. 
Privacy, right of. The right to be let alone; the right of 
a person to be free from unwarranted publicity; and 
right to live without unwarranted interference by the 
public in matters with which the public is not necessar
ily concerned. Term "right of privacy" is generic term 
encompassing various rights recognized to be inherent 
in concept of ordered liberty, and such right prevents 
governmental interference in intimate personal relation
ships or activities, freedoms of individual to make funda
mental choices involving himself, his family, and his 
relationship with others. Industrial Foundation of the 
South v. Texas Indus. Acc. Bd., Tex., 540 S.W.2d 668, 
679. The right of an individual (or corporation) to 
withhold himself and his property from public scrutiny, 
if he so chooses. 
It is said to exist only so far as its assertion is 
consistent with law or public policy, and in a proper case 
equity will interfere, if there is no remedy at law, to 
prevent an injury threatened by the invasion of, or 
infringement upon, this right from motives of curiosity, 
gain or malice. Federal Trade Commission v. American 
Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696. 
While there is no right of privacy found in any specific 
guarantees of the Constitution, the Supreme Court has 
PRIVATEER 
recognized that zones of privacy may be created by more 
specific constitutional guarantees and thereby impose 
limits upon governmental power. Paul v. Davis, 424 
U.S. 693, 712, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405; 
Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64. 
See also Warren and Brandeis, The Right to Privacy, 4 
Harv.L.Rev. 193. 
Tort actions for invasion of privacy fall · into four 
general classes: Appropriation, consisting of appropria
tion, for the defendant's benefit or advantage, of the 
plaintiffs name or likeness, Carlisle v. Fawcett Publica
tions, 201 Cal.App.2d 733, 20 Cal.Rptr. 405; Intrusion, 
consisting of intrusion upon the plaintiffs solitude or 
seclusion, as by invading his home (Ford Motor Co. v. 
Williams, 108 Ga.App. 21, 132 S.E.2d 206), eaves
dropping (LaCrone v. Ohio Bell Tel. Co., 114 Ohio App. 
299, 182 N.E.2d 15, 19 0.0.2d 236); as well as persistent 
and unwanted telephone calls (Housh v. Peth, 165 Ohio 
St. 35, 133 N.E.2d 340, 59 0.0. 60); Public disclosure of 
private facts, consisting of a cause of action in publicity, 
of a highly objectionable kind, given to private informa
tion about the plain tiff, even though it is true and no 
action would lie for defamation, Melvin v. Reid, 112 
Cal.App. 285, 297 P. 91; False light in the public eye, 
consisting of publicity which places the plaintiff in . a 
false light in the public eye, Norman v. City of Las 
Vegas, 64 Nev. 38, 177 P.2d 442. 
See also False light privacy; Invasion of privacy. 
Private. Affecting or belonging to private individuals, 
as qistinct from the public generally. Not official; not 
clothed with office. People v. Powell, 280 Mich. 699, 274 
N.W. 372, 373. 
As to private Act; Agent; Bill; Boun dary; Business; 
Carrier; Chapel; Corporation; Detective; Dwelling; Ease
ment; Examination; Ferry; Nu isance; Pond; Property; 
Prosecutor; Rights; Road; Sale; School; Seal; Statute; 
Stream; Trust; Water; War; Way; Wharf; and Wrong, 
see those titles. 
Private hank. An unincorporated banking institution 
owned by an individual or partnership and, depending 
upon state statutes, subject to or free from state regula
tion. 
Private hill. Legislation for the special benefit of an 
individual or a locality. Many State constitutions pro
hibit such legislation except by general law. See also 
Private law. 
Privateer /prayv�tir/. A vessel owned, equipped, and 
armed by one or more private individuals, and duly 
commissioned by a belligerent power to go on cruises 
and make war upon the enemy, usually by preying on 
his commerce. A private vessel commissioned by a 
nation by the issue of a letter of marque to its owner to 
carry on all hostilities by sea, presumably according to 
the laws of war. Formerly a state issued letters of 
marque to its own subjects, and to those of neutral 
states as well, but a privateersman who accepted letters 
of marque from both belligerents was regarded as a 
pirate. By the Declaration of Paris (April, 1856), priva
teering was abolished, but the United States, Spain,

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PRIVATEER 
Mexico, and Venezuela did not accede to this declara
tion. It has been thought that the constitutional provi
sion empowering Congress to issue letters of marque 
deprives it of the power to join in a permanent treaty 
abolishing privateering. See Piracy. 
Piracy and privateering are federal offenses. 18 U.S. 
C.A. § 1651 et seq. 
Private foundations. An organization which is operat
ed privately for the advancement of charitable or edu
cation projects. An organization generally exempt from 
taxation that is subject to additional statutory restric
tions on its activities and on contributions thereto. Ex
cise taxes may be levied on certain prohibited transac
tions, and the Internal Revenue Code places more strin
gent restrictions on the deductibility of contributions to 
private foundations. IRC § 509. See also Charitable 
organizations; Foundation. 
Private international law. A name used by some writ
ers to indicate that branch of the law which is now more 
commonly called "Conflict of laws" (q.v.). 
Private law. That portion of the law which defines, 
regulates, enforces, and administers relationships 
among individuals, associations, and corporations. As 
used in contradistinction to public law, the term means 
all that part of the law which is administered between 
citizen and citizen, or which is concerned with the 
definition, regulation, and enforcement of rights in cases 
where both the person in whom the right inheres and 
the person upon whom the obligation is incident are 
private individuals. See also Private bill; Special law. 
Compare Public law. 
Private letter ruling. A written statement issued to the 
taxpayer by the Internal Revenue Service in which 
interpretations of the tax laws are made and applied to 
a specific set of facts. Function of the letter ruling, 
usually sought by the taxpayer in advance of a contem
plated transaction, is to advise the taxpayer regarding 
the tax treatment he can expect from the I.R.S. in the 
circumstances specified by the ruling. U. S. v. Wahlin, 
D.C.Wis., 384 F.Supp. 43, 47 . See also Letter ruling. 
Private nuisance. A private nuisance is generally any
thing that by its continuous use or existence works 
annoyance, harm, unreasonable interference, inconven
ience or damage to another landowner in the en joyment 
of his property. Robie v. Lillis, 112 N.H. 492, 299 A.2d 
155, 158. A nuis�nce affecting a single individual or 
definite small number of persons in enjoyment of pri
vate rights not common to the public. Spur Industries, 
Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 
P.2d 700, 705. It is only a tort, and the remedy therefor 
lies exclusively with the individual whose rights have 
been disturbed. Philadelphia Elec. Co. v. Hercules, Inc., 
C.A.Pa., 762 F.2d 303, 315. See also Nuisance. Compare 
Public nuisance. 
Private offering. See Offering; Private placement. 
Private person. Term sometimes used to refer to per
sons other than those holding public office or in military 
services. 
1196 
Private placement. Adoption. In adoption cases, the 
placement of a child for adoption by the mother or 
parents themselves or by an intermediary like a lawyer 
or doctor, rather than by an adoption agency. Also 
sometimes called a "direct" placement. 
Securities. The sale of a stock or bond issued directly to 
private persons, institutional investors, etc., outside of a 
public offering. Securities Act (1933), § 4(2). See also 
Direct placement; Offering. 
Private ruling. See Letter ruling; Private letter ruling. 
Privation Ipr;;)veysh:m/. A taking away or withdrawing. 
Privatio prresupponit habitum. Ipr;;)veysh(iy)ow 
priys;;)pown;;)t hreb;;)t;;)m/. A deprivation presupposes a 
possession. 
Privatis pactionibus non dubium. est non lredi jus 
creterorum. Ipr;;)veyt;;)s prekshiyown;;)b;;)s non 
d(y)uwbiy;;)m est non liyday j�s set;;)ror;;)m/. There is no 
doubt that the rights of others [third parties] cannot be 
prejudiced by private agreements. 
Privatorum. conventio juri publico non derogat 
Iprayv;;)tor;;)m k;;)nvensh(iy)ow juray p�bl;;)kow non 
der;;)g;;)t/. The agreement of private individuals does not 
derogate from the public right [law]. 
Privatum. Ipr;;)veyt;;)m/. Lat. Private. Privatum jus, 
private law. 
Privatum. commodum publico cedit Ipr;;)veyt;;)m 
kom;;)d;;)m p�bl;;)kow siyd;;)t/. Private good yields to pub
lic. The interest of an individual should give place to 
the public good. 
Privatum. incommodum. publico bono pensatur 
Ipr;;)veyt;;)m inkom;;)d;;)m p�bbkow bownow penseyd;;)r/. 
Private inconvenience is made up for by public benefit. 
Privies I priviyzl . Those who are partakers or have an 
interest in any action or thing, or any relation to anoth
er. Brown v. Fidelity Union Trust Co., 126 N.J.Eq. 406, 
9 A.2d 311, 326; Hamelik v. Sypek, 152 Misc. 799, 274 
N.Y.S. 875. They are of six kinds: 
(1) Privies of blood; such as the heir to his ancestor. 
(2) Privies in representation; as executors or adminis
trators to their deceased testator or intestate. 
(3) Privies in estate; as grantor and grantee, lessor 
i md lessee, assignor and assignee, etc. 
(4) Privies in respect to contract. 
(5) Privies in respect of estate and contract; as where 
the lessee assigns his interest, but the contract between 
lessor and lessee continues, the lessor not having accept
ed of the assignee. 
(6) Privies in law; as the lord by escheat, a tenant by 
the curtesy, or in dower, the incumbent of a benefice, a 
husband suing or defending in right of his wife, etc. 
"Privies," in the sense that they are bound by the 
judgment, are those who acquired an interest in the 
subject-matter after the rendition of the judgment. 
"Privies" to a judgment are those whose succession to 
the rights of property affected occurs after the institu
tion of the suit and form a party to it.

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1197 
Privigna /pr;}vign;}/. Lat. In the civil law, a step
daughter. 
Privignus /pr;}vign;}s/. Lat. In the civil law, a son of a 
husband or wife by a former marriage; a stepson. 
Privilege. A particular and peculiar benefit or advan
tage enjoyed by a perso�, company, or class, beyond the 
common advantages of other citizens. An exceptional or 
extraordinary power or exemption. A peculiar right, 
advantage, exemption, power, fran chise, or immunity 
held by a person or class, not generally possessed by 
others. 
In tort law, the ability to act contrary to another 
individual's legal right without that individual having 
legal redress for the consequences of that act; usually 
raised by the actor as a defense. 
An exemption from some burden or attendance, with 
which certain persons are indulged, from a supposition 
of law that the stations they fill, or the offices they are 
engaged in, are such as require all their time and care, 
and that, therefore, without this indulgence, it would be 
impracticable to execute such offices to that advantage 
which the public good requires. That which releases 
one from the performance of a duty or obligation, or 
exempts one from a liability which he would otherwise 
be required to perform, or sustain in common with all 
other persons. See also Exemption; Im munity. 
See also Doctor-patient privilege; Executive privilege; 
Husband-wife privilege; Journalist's privilege; Legislative 
immuni ty; Marital commun ications privilege; Newsmen's 
privilege; Patient-physician privilege; Priest-penitent privi
lege; Privileged communi cations; Right; State secrets 
privilege. 
Attorney-client, doctor-patient, etc. privilege. See Privi
leged commun ications, and also specific privileges. 
Civil law. A right which the nature of a debt gives to a 
creditor, and which entitles him to be preferred before 
other creditors. Civil Code La. art. 3186. It is merely 
an accessory of the debt which it secures, and falls with 
the extinguishment of the debt. The civil law privilege 
became, by adoption of the admiralty courts, the admi
ralty lien. The J. E. Rumbell, 148 U.S. 1, 13 S.Ct. 498, 
37 L.Ed 345. 
Communications. See Privileged communi cations. 
Deliberative process privilege. This governmental privi
lege permits government to withhold documents that 
reflect advisory opinions, recommendations and deliber
ations comprising part of a process by which govern
ment decisions and policies are formulated, and was 
developed to promote frank and independent discussion 
among those responsible for making governmental deci
sions and to protect against premature disclosure of 
proposed agency policies or decisions. F.T.C. v. Warner 
Communications Inc., C.A.CaL, 742 F.2d 1156, 1161. 
Discovery. When interrogatories, depositions or other 
forms of discovery seek information which is otherwise 
privileged, the party from whom it is sought may claim 
his privilege. Fed.R.Civil P. 26; Fed.R.Crim.P. 16. See 
also Protective order; · Work product rule. 
PRIVILEGE 
Evidence. See Privileged commun ications; Privileged evi
dence. 
Executive privilege. The protection afforded to confiden
tial presidential communications. However, the gener
alized need for confidentiality of high level communica
tions cannot sustain an absolute unqualified presidential 
privilege. U. S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 
L.Ed.2d 1039. See also Executive privilege. 
Journalist's privilege. See Journalist's privilege; News
men's privilege; Shield laws. 
Libel and slander. An exemption from liability for the 
speaking or publishing of defamatory words concerning 
another, based on the fact that the statement was made 
in the performance of a political, judicial, social, or 
personal duty. Privilege is either absolute or condition
al. The former protects the speaker or publisher with
out reference to his motives or the truth or falsity of the 
statement. This may be claimed in respect, for in
stance, to statements made in legislative debates, in 
reports of military officers to their superiors in the line 
of their duty, and statements made by judges, witnesses, 
and jurors in trials in court. Conditional privilege 
(called also "qualified privilege") will protect the speak
er or publisher unless actual malice and knowledge of 
the falsity of the statement is shown. This may be 
claimed where the communication related to a matter of 
public interest, or where it was necessary to protect 
one's private interest and was made to a person having 
an interest in the same matter. Saroyan v. Burkett, 57 
CaL2d 706, 21 Cal.Rptr. 557, 558, 371 P.2d 293. 
For defense of "constitutional privilege" in libel ac
tions, see Libel. 
Maritime law. An allowance to the master of a ship of 
the same general nature with primage, being compensa
tion, or rather a gratuity, customary in certain trades, 
and which the law assumes to be a fair and equitable 
allowance, because the contract on both sides is made 
under the knowledge of such usage by the parties. 
Parliamentary law. The right of a particular question, 
motion, or statement to take precedence over all other 
business before the house and to be considered immedi
ately, notwithstanding any consequent interference with 
or setting aside the rules of procedure adopted by the 
house. The matter may be one of "personal privilege," 
where it concerns one member of the house in his 
capacity as a legislator, or of the "privilege of the 
house," where it concerns the rights, immunities, or 
dignity of the entire body, or of "constitutional privi
lege," where it relates to some action to be taken or 
some order of proceeding expressly enjoined by the con
stitution. 
Privilege from arrest. A privilege extended to certain 
classes of persons, either by the rules of international 
law, the policy of the law, or the necessities of justice or 
of the administration of government, whereby they are 
exempted from arrest on civil process, and, in some 
cases, on criminal charges, either permanently, as in the 
case of a foreign minister and his suite, or temporarily, 
as in the case of members of the legislature, parties and

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PRIVILEGE 
witnesses engaged in a particular suit, etc. Art. I, § 6, 
U.S .Const. See also Im muni ty. 
Privilege tax. A tax on the privilege of carrying on a 
business or occupation for which a license or franchise is 
required. Gulf & Ship Island R. Co. v. Hewes, 183 U.S. 
66, 22 S.Ct. 26, 46 L.Ed. 86. 
Torts. Privilege is the general term applied to certain 
rules of law by which particular circumstances justify 
conduct which otherwise would be tortious, and thereby 
defeat the tort liability (or defense) which, in the ab
sence of such circumstances, ordinarily would follow 
from that conduct. In other words, even if all of the 
facts necessary to a prima facie case of tort liability can 
be proved, there are additional facts present sufficient to 
establish some privilege, and therefore defendant has 
committed no tort. Privileges thus differ from other 
defenses, such as contributory negligence, which operate 
to bar plaintiffs recovery but do not negate the tortious 
nature of defendant's conduct. Conversely, plaintiffs 
privilege may defeat a defense which defendant other
wise might have had. The term and concept of privilege 
apply primarily to the intentional torts, but also appear 
in other areas, such as defamation. See Libel and 
slander, above. 
A privilege may be based upon: (a) the consent of the 
other affected by the actor's conduct, or (b) the fact that 
its exercise is necessary for the protection of some inter
est of the actor or of the public which is of such impor
tance as to justify the harm caused or threatened by its 
exercise, or (c) the fact that the actor is performing a 
function for the proper performance of which freedom of 
action is essential. Restatement, Second, Torts, § 10. 
Privileges may be divided into two general categories: 
(1) consent, and (2) privileges created by law irrespective 
of consent. In general, the latter arise where there is 
some important and overriding social value in sanction
ing defendant's conduct, despite the fact that it causes 
plaintiff harm. 
Privilege is an affirmative defense which must be 
pleaded by defendant. Fed.R.Civil P. 8(c). 
Writ of privilege. A common law process to enforce or 
maintain a privilege; particularly to secure the release 
of a person arrested in a civil suit contrary to his 
privilege. 
Privilege against self-incrimination. The privilege de
rived from the Fifth Amendment, U.S.C onst., and sim
ilar provisions in the constitutions of states. It requires 
the government to prove a criminal case against the 
defendant without the aid of the defendant as a witness 
against himself, though it protects only communications, 
not physical evidence such as handwriting and finger
prints. It is invocable by any witness who is called to 
the witness stand against his wishes whether the pro
ceeding be a trial or grand jury hearing or a proceeding 
before an investigating body, but it is waived when the 
witness voluntarily takes th� witness stand. See also 
Im muni ty; Link-in-chain. 
Privileged. Possessing or enjoying a privilege; exempt 
from burdens; entitled to priority or precedence. 
1198 
Privileged communications. Those statements made 
by certain persons within a protected relationship such 
as husband-wife, attorney-client, priest-penitent and the 
like which the law protects from forced disclosure on the 
witness stand at the option of the witness, client, peni
tent, spouse. In federal courts, the extent and scope of 
the specific privilege is to be governed by federal com
mon law or state rules governing evidentiary privileges. 
Fed.Evid. Rule 501. See also Attorney-client privilege; 
Commun ication; Conditionally privileged commu nication; 
Journalist's privilege; Privilege. 
Privileged copyholds. See Copyhold. 
Privileged debts. Those which an executor or adminis
trator, trustee in bankruptcy, and the like, may pay in 
preference to others; such as funeral expenses, servants' 
wages, and doctors' bills during last sickness, etc. See 
also Preferential debts. 
Privileged evidence. In addition to privileged commu
nications (q. v.), privileged evidence may also include 
governmental secrets or records, identity of informer, 
grand jury proceedings, certain types of accident reports, 
and attorney's work product. 
Privileges and immunities clause. There are two Priv
ileges and Immunities Clauses in the federal Constitu
tion and Amendments, the first being found in Art. IV, 
and the second iIi the 14th Amendment, § 1, second 
sentence, clause 1. The provision in Art. IV states that 
"The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several 
States," while the 14th Amendment provides that "No 
State shall make or enforce any law which shall abridge 
. the privileges or immunities of citizens of the United 
States. 
The purpose of these Clauses is to place the citizens of 
each State upon the same footing with citizens of other 
states, so far as the advantages resulting from citizen
ship in those states is concerned; to insure that a citizen 
of State A who ventures into State B be accorded the 
same privileges that the citizens of State B en joy. 
Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156,92 L.Ed. 
1460. Pursuing a common calling, plying a trade, and 
doing business in another state are examples of "privi
leges" protected by the privileges and immunities clause 
of the Federal Constitution. Powell v. Daily, Wyo., 712 
P.2d 356, 359. See also Full faith and credit clause. 
Privilegia qure re vera sunt in prrejudicium reipubl
icre, magis tamen habent speciosa frontispicia, et 
boni publici prretextum, quam bonre et legales con
cessiones; sed prretextu liciti non debet admitti illic
tum /priv;}liyj(iy);} kwiy riy vira s�nt in prej;}dish(iy);}m 
riyayp�bl;}siy, meyj;}s teym;}n hreb;}nt spiyshiy6ws;} 
fr:)nt;}spish(iy);}, et b6wnay p�bl;}say pr;}tekst;}m, kwrem 
b6wniy et l;}geyliyz k;}nseshiy6wniyz; sed pr;}tekst(y)uw 
lis;}tay non deb;}nt ;}dmitay ;}lis;}t;}m /. Privileges which 
are truly in prejudice of public good have, however, a 
more specious front and pretext of public good than good 
and legal grants; but, under pretext of legality, that 
which is illegal ought not to be admitted.

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1199 
Privilegium Ipriv�liyj(iy)�m /. In Roman law, a special 
constitution by which the Roman emperor conferred on 
some single person some anomalous or irregular right, 
or imposed upon some single person some anomalous or 
irregular obligation, or inflicted on some single person 
some anomalous or irregular punishment. When such 
privilegia conferred anomalous rights, they were styled 
"favorable." When they imposed anomalous obli
gations, or inflicted anomalous punishments, they were 
styled "odious." A private law inflicting a punishment 
or conferring a reward. 
In civil law, every peculiar right or favor granted by 
the law, contrary to the common rule. A species of lien 
or claim upon an article of property, not dependent upon 
possession, but continuing until either satisfied or re
leased. Such is the lien, recognized by maritime law, of 
seamen upon the ship for their wages. 
Privilegium clericale Ipriv�liyj(iy)�m klehr�keyliy/. 
The benefit of clergy (q. v.). 
Privilegium est beneficium personale, et extinguitur 
cum persona Ipriv�liyj(iy)�m est ben�fish(iy)�m 
p;}rs�neyliy et �kstit:Jgw��r k�m p�rsown�/. A privilege 
is a personal benefit, and dies with the person. 
Privilegium est quasi privata lex Ipriv�liyj(iy)�m est 
kweysay prayveyt;} leks I . Privilege is, as it were, a 
private law. 
Privilegium non valet contra rempublicam Ipriv
;}liyj(iy);}m non vcH;}t kontr;} remp�bl;}k;}m/. Privilege is 
of no force against the commonwealth. Even necessity 
does not excuse, where the act to be done is against the 
commonwealth. 
Privilegium, property propter Iprop;}rtiy propt;}r 
priv;}liyj(iy);}m/. A qualified property in animals ferre 
naturre; i.e., a privilege of hunting, taking, and killing 
them, in exclusion of others. 
Privity. In its broadest sense, "privity" is defined as 
mutual or successive relationships to the same right of 
property, or such an identification of interest of one 
person with another as to represent the same legal 
right. Petersen v. Fee Intern., Ltd., D.C.Okl., 435 
F.Supp. 938, 942. Derivative interest founded on, or 
growing out of, contract, connection, or bond of union 
between parties; mutuality of interest. Hodgson v. Mid
west Oil Co., C.C.A.Wyo., 17 F.2d 71, 75. Thus, the 
executor is in privity with the testator, the heir with the 
ancestor, the assignee with the assignor, the donee with 
the donor, and the lessee with the lessor. Litchfield v. 
Crane, 123 V.S. 549, 8 S.Ct. 210, 31 L.Ed. 199. 
Privity signifies that relationship between two or 
more persons is such that a judgment involving one of 
them may justly be conclusive upon other, although 
other was not party to lawsuit. Gill and Duffus Servic
es, Inc. v. A.M. Nural Islam, C.A., 675 F.2d 404, 405, 218 
V.S.App.D.C. 385. 
Private knowledge; joint knowledge with another of a 
private concern; cognizance implying a consent or con
currence. See Ins ider; Legal privity; Privy. 
PRIVITY 
Horizontal privity. Such privity is not, in reality, a 
state of privity but rather one of nonprivity. The term 
refers to those who are not in the distributive chain of a 
product but who, nonetheless, use the product and re
tain a relationship with the purchaser, such as a mem
ber of the purchaser's family. Szajna v. General Motors 
Corp., 115 Ill.2d 294, 104 Ill.Dec. 898, 503 N.E.2d 760, 
765. See also V.C.C. § 2-318. 
Privity of blood. Such existed between an heir and his 
ancestor (privity in blood inheritable), and between co
parceners. This privity was formerly of importance in 
the law of descent cast. 
Privity of contract. That connection or relationship 
which exists between two or more contracting parties. 
It was traditionally essential to the maintenance of an 
action on any contract that there should subsist such 
privity between the plain tiff and defendant in respect of 
the matter sued on. However, the absence of privity as 
a defense in actions for damages in contract and tort 
actions is generally no longer viable with the enactment 
of warranty statutes (see e.g. V.C.C. § 2-318 below), 
acceptance by states of doctrine of strict liability (q.v.), 
and court decisions (e.g. MacPherson v. Buick Motor Co., 
217 N.Y. 382, 111 N.E. 1050) which have 'extended the 
right to sue for injuries or damages to third party 
beneficiaries, and even innocent bystanders (Elmore v. 
American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 
451 P.2d 84). 
V.C.C. § 2-318 provides three Alternative provisions 
(A-C) covering third party beneficiaries of express or 
implied warranties. Most states have enacted Alterna
tive A: "A seller's warranty whether express or implied 
extends to any natural person who is in the family or 
household of his buyer or who is a guest in his home if it 
is reasonable to expect that such person may use, con
sume or be affected by the goods and who is injured in 
person by breach of the warranty. A seller may not 
exclude or limit the operation of this section." Other 
states have further broadened this model provision. For 
example Massachusetts V.C.C. § 2-318 provides: "Lack 
of privity between plaint iff and defendant shall be no 
defense in any action brought against the manufacturer, 
seller, lessor or supplier of goods to recover damages for 
breach of warranty, express or implied, or for negli
gence, although the plaint iff did not purchase the goods 
from the defendant if the plaintiff was a person whom 
the manufac turer, seller, lessor or supplier might rea
sonably have expected to use, consume or be affected by 
the goods. . " 
Privity of estate. Mutual or successive relation to the 
same right in · property such as that which exists be
tween lessor and lessee or their successors. 
A subtenant, who is in privity of estate with the 
original lessor, may avail himself of any covenants in 
the original lease which "touch and concern" the land. 
Castle v. Double Time, Inc., Okl., 737 P.2d 900. 
Privity of possession. Relationship which exists between 
parties in successive possession of real property. Such

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PRIVITY 
relationship becomes important in cases of adverse pos
session claims. 
Vertical privity. Refers to the relationship between 
those who are in the distributive chain of a product. 
Szajna v. General Motors Corp., 115 Ill.2d 294, 104 
1l1.Dec. 898, 503 N.E.2d 760, 765. 
Privity or knowledge. Vnder Rev.St. §§ 4283-4286 (46 
V.S.C.A. §§ 183-186) withholding the right to limit lia
bility if the shipowner had "privity or knowledge" of the 
fault which occasioned damages, privity or knowledge 
must be actual and not merely constructive, and must 
involve a personal participation of the owner in some 
fault or act of negligence causing or contributing to the 
injury suffered. The words import actual knowledge of 
the things causing or contributing to the loss, or knowl
edge or means of knowledge of a condition of things 
likely to produce or contribute to the loss without adopt
ing proper means to prevent it. 
Privy. A person who is in privity with another. One 
who is a partaker or has any part or interest in any 
action, matter, or thing. In connection with the doc
trine of res judicata, one who, after the commencement 
of the action, has acquired an interest in the subject 
matter affected by the judgment through or under one 
of the parties, as by inheritance, succession, purchase or 
assignment. Rhyne v. Miami-Dade Water and Sewer 
Authority, Fla.App., 402 So.2d 54, 55. See Ins ider; Priv
ies; Privity. 
As an ad jective, the word has practically the same 
meaning as "private." 
Privy council. In England, the principal council of the 
sovereign, composed of the cabinet ministers, and other 
persons chosen by the king or queen as privy councillors. 
The Judicial Committee of the Privy Council acts as a 
court of ultimate appeal in various cases from Crown 
colonies and the Commonwealth. The importance of the 
Privy Council has been replaced to a great extent by the 
Cabinet. 
Privy councillor. A member of the privy council. 
Privy purse. In England, the income set apart for the 
sovereign's personal use. 
Privy seal. In England, a seal used in making out 
grants or letters patent, preparatory to their passing 
under the great seal. A seal which the sovereign uses to 
such grants or things as pass the great seal. A seal of 
the British government which is affixed to documents 
not requiring the great seal. 
Privy signet /priviy sign�t/. In English law, the signet 
or seal which is first used in making out grants and 
private letters and which is always in the custody of the 
Queen's secretaries. 
Privy token /priviy t6wk�n/. A false mark or sign, 
forged object, counterfeited letter, key, ring, etc., used to 
deceive persons, and thereby fraudulently obtain posses
sion of property. A false privy token is a false privy 
document or sign, not such as is calculated to deceive 
men generally, but designed to defraud one or more 
1200 
individuals. Cheating by such false token was not in
dictable at common law. 
Privy verdict. A verdict given privily to the judge out 
of court, but which was of no force unless afterwards 
affirmed by a public verdict given openly in court. Now 
generally superseded by the "sealed verdict," i.e., one 
written out, sealed up, and delivered to the judge or the 
clerk of the court. See Sealed verdict. 
Prize. Anything offered as a reward of contest. A 
reward offered to the person who, among several per
sons or among the public at large, shall first (or best) 
perform a certain undertaking or accomplish certain 
conditions. An award or recompense for some act done; 
some valuable thing offered by a person for something 
done by others. It is distinguished from a "bet" or 
"wager" in that it is known before the event who is to 
give either the premium or the prize, and there is but 
one operation until the accomplishment of the act, 
thing, or purpose for which it is offered. 
The fair market value of a prize or award is generally 
includible in gross income. Certain exceptions are pro
vided where the prize or award is made in recognition of 
religious, charitable, scientific, educational, artistic, lit
erary, or civic achievement providing certain other re
quirements are met. I.R.C. § 74. 
A vessel or cargo, belonging to one of two belligerent 
powers, apprehended or forcibly captured at sea by a 
war-vessel or privateer of the other belligerent, and 
claimed as enemy's property, and therefore liable to 
appropriation and condemnation under the laws of war. 
The apprehension and detention at sea of a ship or other 
vessel, by authority of a belligerent power, either with 
the design of appropriating it, with the goods and effects 
it contains, or with that of becoming master of the whole 
or a part of its cargo. 
Prize courts. Courts having jurisdiction to adjudicate 
upon captures made at sea in time of war, and to 
condemn the captured property as prize if lawfully sub
ject to that sentence. In England, the admiralty courts 
have jurisdiction as prize courts, distinct from the juris
diction on the instance side. A special commission 
issues in time of war to the judge of the admiralty court, 
to enable him to hold such court. In the Vnited States, 
the federal district courts have jurisdiction in cases of 
prize. 28 V.S.C.A. § 1333. 
Prize goods. Goods which are taken on the high seas, 
jure belli, out of the hands of the enemy. 
Prize law. The system of laws and rules applicable to 
the capture of prize at sea; its condemnation, rights of 
the captors, distribution of the proceeds, etc. 
Prize money. A dividend from the proceeds of a cap
tured vessel, etc., paid to the captors. V. S. v. Steever, 
113 V.S. 747, 5 S.Ct. 765, 28 L.Ed. 1133. 
Pro. For; in respect of; on account of; in behalf of. 
The introductory word of many Latin phrases. 
Proamita /prowrem�t�/. Lat. In the civil law, a great 
paternal aunt; the sister of one's grandfather.

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Proamita magna /prowrem;}t;} mregn;}/. Lat. In the 
civil law, a great-great-aunt. 
Pro and con /prow ;}nd kon /. For and against. A 
phrase descriptive of the presentation of arguments or 
evidence on both sides of a disputed question. 
Proavia /proweyv(i)y;}/. Lat. In the civil law, a great
grandmother. 
Proavunculus /prow;}v�IJky;}l;}s/. Lat. In the civil law, 
a great-grandfather's or great-grandmother's brother. 
Proavus /prow;}v;}s/. Lat. In the civil law, a great
grandfather. Employed in making genealogical tables. 
Probability. Likelihood; appearance of reality or truth; 
reasonable ground of presumption; verisimilitude; con
sonance to reason. The likelihood of a proposition or 
hypothesis being true, from its conformity to reason or 
experience, or from superior evidence or arguments ad
duced in its favor. A condition or state created when 
there is more evidence in favor of the existence of a 
given proposition than there is against it. 
High probability rule. In admiralty law, a rule relating 
to the right of insured to abandon a vessel, by virtue of 
which the right of abandonment does not depend upon 
the certainty, but upon the high probability of a total 
loss, either of the property, or voyage, or both. The 
result is to act not upon certainties, but upon probabili
ties; and if the facts present a case of extreme hazard, 
and of probable expense, exceeding half the value of the 
ship, the insured may abandon, though it should happen 
that she was afterwards recovered at a less expense. 
Probable. Having the appearance of truth; having the 
character of probability; appearing to be founded in 
reason or experience. Having more evidence for than 
against; supported by evidence which inclines the mind 
to believe, but leaves some room for doubt; likely. See 
also Possible. 
Probable cause. Reasonable cause; having more evi
dence for than against. A reasonable ground for belief 
in certain alleged facts. A set of probabilities grounded 
in the factual and practical considerations which govern 
the decisions of reasonable and prudent persons and is 
more than mere suspicion but less than the quantum of 
evidence required for conviction. U.S v. Riemer, D.C. 
Ohio, 392 F.Supp. 1291, 1294. An apparent state of 
facts found to exist upon reasonable inquiry (that is, 
such inquiry as the given case renders convenient and 
proper), which would induce a reasonably intelligent 
and prudent man to believe, in a criminal case, that the 
accused person had committed the crime charged, or, in 
a civil case, that a cause of action existed. Cook v. 
Singer Sewing Mach. Co., 138 Cal.App. 418, 32 P.2d 430, 
431. See also In formation and belief; Reasonable and 
probable cause; Reasonable belief; Reasonable grounds. 
Arrest, search and seizure. Reasonable grounds for be
lief that a person should be arrested or searched. The 
evidentiary criterion necessary to sustain an arrest or 
the issuance of an arrest or search warrant. "Probable 
cause" to arrest exists where facts and circumstances 
within officers' knowledge and of which they had rea-
PROBABLY 
sonably trustworthy information are sufficient in them
selves to warrant a person of reasonable caution in the 
belief that an offense has been or is being committed; it 
is not necessary that the officer possess knowledge of 
facts sufficient to establish guilt, but more than mere 
suspicion is required. State v. Phillips, 67 Hawaii 535, 
696 P.2d 346, 350. Probable cause is the existence of 
circumstances which would lead a reasonably prudent 
man to believe in guilt of arrested party; mere suspicion 
or belief, unsupported by facts or circumstances, is insuf
ficient. State v. Jones, 248 Or. 428, 435 P.2d 317, 319. 
It permits an officer to arrest one for a felony without a 
warrant. Probable cause justifying officer's arrest with
out warrant has been defined as situation where officer 
has more evidence favoring suspicion that person is 
guilty of crime than evidence against such suspicion, but 
there is some room for doubt. Nugent v. Superior Court 
for San Mateo County, 254 C.A.2d 420, 62 Cal.Rptr. 217, 
221. 
The finding of probable cause for issuance of an arrest 
warrant (as required by 4th Amend.) may be based upon 
hearsay evidence in whole or part. Fed.R.Crim.P. 4(b). 
See also Rule 5.1(a) (Preliminary examination), and Rule 
41(c) (Search and seizure). 
See also Arrest; Probable cause hearing; Search; 
Search warrant. 
False imprisonment action. For arrest which must be 
shown as justification by defendants in action for false 
imprisonment is reasonable ground of suspicion sup
ported by circumstances sufficient in themselves to war
rant cautious man in believing accused to be guilty, but 
does not depend on actual state of case in point of fact, 
as it may turn out upon legal investigation, but on 
knowledge of facts which would be sufficient to induce 
reasonable belief in truth of accusation. Christ v. Mc
Donald, 152 Or. 494, 52 P.2d 655, 658. 
Malicious prosecution action. In context of civil action 
for malicious prosecution, is such a state of facts in mind 
of defendant as would lead a person of ordinary caution 
and prudence to believe, or entertain an honest and 
strong suspicion, that plaint iff had committed a crime. 
Carroll v. Gillespie, 14 Mass.App. 12, 436 N.E.2d 431, 
435. See Malicious prosecution. 
Probable cause hearing. That procedural step in the 
criminal process at which the judge or magistrate de
cides whether a complaint should issue or a person 
should be bound over to a grand jury on a showing of 
probable cause. See e.g. Fed.R.Crim.P. 5.1(a). See Pre
limi nary hearing. 
Probable consequence. One that is more likely to 
follow its supposed cause than it is not to follow it. 
Probable evidence. Presumptive evidence is so called, 
from its foundation in probability. See Presumption. 
Probably. In all probability; so far as the evidence 
shows; presumably; likely. 
Probandi necessitas incumbit illi qui agit /pr;}brenday 
n;}ses;}tres ;}nk�mb;}t Hay kway eyj;}t/. The necessity of 
proving lies with him who sues. In other words, the

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PROBATE 
burden of proof of a proposition is upon him who ad
vances it affirmatively. 
Probate. Court procedure by which a will is proved to 
be valid or invalid; though in current usage this term 
has been expanded to generally refer to the legal process 
wherein the estate of a decedent is administered. Gen
erally, the probate process involves collecting a dece
dent's assets, liquidating liabilities, paying necessary 
taxes, and distributing property to heirs. These activi
ties are carried out by the executor or administrator of 
the estate, usually under the supervision of the probate 
court or other court of appropriate jurisdiction. See 
Letters; Probate court; Probate jurisdicti on. 
In the canon law, "probate" consisted of probatio, the 
proof of the will by the executor, and approbatio, the 
approbation given by the ecclesiastical judge to the 
proof. 
Probate bond. One required by law to be given to the 
probate court or judge, as incidental to proceedings in 
such courts, such as the bonds of executors, administra
tors, and guardians. 
Probate code. The body or system of law relating to all 
matters of which probate courts have jurisdiction; e.g. 
Uniform Probate Code. 
Probate court. A court having general powers over 
probate of wills, administration of estates, and, in some 
states, empowered to appoint guardians or approve the 
adoption of minors. Court with similar functions is 
called Surrogate or Orphan's Court in certain states. 
See also Court of Orphans; Probate jurisdiction. 
Probate duty. A tax laid by government on every will 
admitted to probate or on the gross value of the personal 
property of the deceased testator, and payable out of the 
decedent's estate. See also Estate tax; Inh eritance tax. 
Probate estate. The property of a decedent that is 
subject to administration by the executor or administra
tor of an estate. 
Probate homestead. See Homestead. 
Probate jurisdiction. The exercise of the ordinary, 
generally understood power of a probate, . surrogate or 
orphan's court, which includes the establishment of 
wills, settlement of decedents' estates, supervision of 
guardianship of infants, control of their property, and 
other powers and functions pertaining to such subjects. 
See also Probate court. 
Probate proceeding. A general designation of the ac
tions and proceedings whereby the law is administered 
upon the various subjects within "probate jurisdiction" 
(q.v.). 
Probatio /pr�beysh(iy)ow/. Lat. Proof; more particu
larly direct, as distinguished from indirect or circum
stantial evidence. 
Probatio mortua /pr�beysh(iy)ow m6rtyuw� /. Dead 
proof; that is proof by inanimate objects, such as deeds 
or other written evidence. 
1202 
Probation. The evidence which proves a thing; the act 
of proving; proof; trial; test. Used in the latter sense 
when referring to the initial period of employment dur
ing which a new, transf erred, or promoted employee 
must prove or show that he is capable of performing the 
required duties of the job or position before he will be 
considered as permanently employed in such position. 
As applied to teachers, term means that teacher is on 
trial, with his competence and suitability remaining to 
be finally determined. Turner v. Board of Trustees, 
Calexico Unified School Dist., 121 Cal.Rptr. 705, 535 
P.2d 1171, 1178. 
Sentence imposed for commission of crime whereby a 
convicted criminal offender is released into the commu
nity under the supervision of a probation officer in lieu 
of incarceration. State v. Fields, 67 Haw. 268, 686 P.2d 
1379, 1387. It is not a matter of right, but rather is an 
act of grace and clemency available only to those defen
dants found eligible by the court. People v. Brown, 172 
Cal.App.2d 30, 342 P.2d 410, 412. It implies that defen
dant has a chance to prove himself and its purpose is 
reform and rehabilitation. For this purpose the defen
dant must agree to specified standards of conduct and 
the public authority operating through the court impli
edly promises that if he makes good, his probation will 
continue; however, his violation of such standards sub
jects his liberty to revocation. Baine v. Beckstead, 10 
Utah 2d 4, 347 P.2d 554, 558. 
In determining whether the defendant is entitled to a 
sentence of probation, the court looks to such matters as 
the nature and circumstances of the offense, the history 
and characteristics of the defendant, and the need for 
the sentence imposed. See, e.g., 18 U.S.C.A. §§ 3553(a), 
3561 et seq.; Fed.R.Crim.P. 32. 
The defendant is entitled to be represented by counsel 
in probation proceedings under Sixth Amendment. 
Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 
336. 
Probationer. A convicted offender who is allowed to go 
at large, under suspension of sentence, during good 
behavior. 
Probationes debent esse evidentes, id est, perspicure 
et facHes intelligi /pr�beyshiy6wniyz deb�nt esiy 
ev�dentiyz, id est, p�rspikyuway et fres�liyz intel�jay/. 
Proofs ought to be evident, that is, perspicuous and 
easily understood. 
Probation officer. One who supervises a person (com
monly juveniles) placed on probation by a court in a 
criminal proceeding. He is required to report to the 
court the progress of the probationer and to surrender 
him if he violates the terms and conditions of his proba
tion. 
Probatio plena /pr�beysh(iy)ow pliyn�/. In the civil 
law, full proof; proof by two witnesses, or a public 
instrument. 
Probatio semi-plena /pr�beysh(iy)ow semaypli yn�/. In 
the civil law, half-full proof; half-proof. Proof by one 
witness, or a private instrument.

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Probatio viva /pr;)beysh(iy)ow vayv;)/. Living proof; 
that is, proof by the mouth of living witnesses. 
Probatis extremis, prresumuntur media /pr;)beyt;)s 
;)kstriym;)s, priyzy;)m:}nt;)r miyd(i)y;)I . The extremes be
ing proved, the intermediate proceedings are presumed. 
Probative evidence Iprowb;)t;)v ev;)d;)ns/. In the law of 
evidence, means having the effect of proof; tending to 
prove, or actually proving an issue; that which furnish
es, establishes, or contributes toward proof. Akin v. 
Hill's Estate, 201 Kan. 306, 440 P.2d 585, 590. Testimo
ny carrying quality of proof and having fitness to induce 
conviction of truth, consisting of fact and reason co-oper
ating as co-ordinate factors. Globe Indemnity Co. v. 
Daviess, 243 Ky. 356, 47 S.W.2d 990, 992. See also 
Relevant evidence. 
Probative facts. In the law of evidence, facts which 
actually have effect of proving facts sought; evidentiary 
facts. Matters of evidence required to prove ultimate 
facts. Johnson v. Inter-Southern Life Ins. Co., 244 Ky. 
83, 50 S.W.2d 16. See Probative evidence. 
Probative value. Evidence has "probative value" if it 
tends to prove an issue. U.S. v. Ball, D.C.Tenn., 547 
F.Supp. 929, 934. 
Probator Ipr;)beyt;)r/. In old English law, strictly, an 
accomplice in felony who to save himself confessed the 
fact, and charged or accused any other as principal or 
accessory, against whom he was bound to make good his 
charge. It also signified an approver, or one who under
takes to prove a crime charged upon another. 
Probatum est Ipr;)beyt;)m est/. Lat. It is tried or 
proved. 
Pro bono Iprow bownow/. Lit. For the good; used to 
describe work or services (e.g. legal services) done or 
performed free of charge. 
Pro bono et malo Iprow bownow et mrelow/. For good 
and ill; for advantage and detriment. 
Pro bono publico Iprow bownow p:}bl;)kow/. For the 
public good; for the welfare of the whole. For example, 
"pro bono" legal work is providing legal services to 
indigents without charge. 
Probus et legalis homo Iprowb;)s et l;)geyl;)s howmo w/. 
Lat. A good and lawful man. A phrase particularly 
applied to a juror or witness who was free from all 
exception, and competent in point of law to serve on 
juries. In the plural form: probi et legales homines. 
Procedendo Iprows;)dendow/. Action wherein court of 
superior jurisdiction orders court of inferior jurisdiction 
to proceed to judgment, but has no bearing on nature of 
judgment to be entered. State ex reI. Jacobs v. Munici
pal Court of Franklin County, 26 Ohio App.2d 113, 269 
N.E.2d 629, 631, 55 O.O.2d 245. A writ by which a 
cause which has been removed from an inferior to a 
superior court by certiorari or otherwise is sent down 
again to the same court, to be proceeded in there, where 
it appears to the superior court that it was removed on 
insufficient grounds. 
PROCEDURE 
More commonly, a case returned to a lower court is 
said to be remanded to such court. 
A writ (procedendo ad judicium) which issued out of 
the common-law jurisdiction of the court of chancery, 
when judges of any subordinate court delayed the par
ties for that they would not give judgment either on the 
one side or on the other, when they ought so to do. In 
such a case, a writ of procedendo ad judicium was 
awarded, commanding the inferior court in the sover
eign's name to proceed to give judgment, but without 
specifying any particular judgment. It was the earliest 
remedy for the refusal or neglect of justice on the part of 
the courts. In re Press Printers & Publishers, C.C.A. 
N.J., 12 F.2d 660, 664. 
A writ by which the commission of a justice of the 
peace is revived, after having been suspended. 1 BI. 
Comm. 353. 
Procedendo on aid prayer Iprows;)dendow on eyd 
pre(y;)r/. If one pray in aid of the crown in real action, 
and aid be granted, it shall be awarded that he sue to 
the sovereign in chancery, and the justices in the com
mon pleas shall stay until this writ of procedendo de 
loquela come to them. So, also, on a personal action. 
Procedural due process. The guarantee of procedural 
fairness which flows from both the Fifth and Fourteenth 
Amendments due process clauses of the Constitution. 
For the guarantees of procedural due process to apply, it 
must first be shown that a deprivation of a significant 
life, liberty, or property interest has occurred. This is 
necessary to bring the Due Process Clause into play. 
Minimal procedural due process is that parties whose 
rights are to be affected are entitled to be heard and, in 
order that they may enjoy that right, they must be 
notified. Fuentes v. Shevin, 407 U.S. 67, 79, 92 S.Ct. 
1983, 1994, 32 L.Ed.2d 556. Procedures which due pro
cess requires beyond that minimum must be determined 
by a balancing analysis based on the specific factual 
context. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 
25 L.Ed.2d 287. 
Procedural law. That which prescribes method of en
forcing rights or obtaining redress for their invasion, 
Long v. Storms, 52 Or.App. 685, 629 P.2d 827, 828; 
machinery for carrying on procedural aspects of civil or 
criminal action; e.g. Rules of Civil, Criminal, and Appel
late Procedure, as adopted by the Federal and most state 
courts. Barker v. St. Louis County, 340 Mo. 986, 104 
S.W.2d 371, 377, 378, 379; Schultz v. Gosselink, 260 
Iowa 115, 148 N.W.2d 434, 436. As a general rule, laws 
which fix duties, establish rights and responsibilities 
among and for persons, natural or otherwise, are "sub
stantive laws" in character, while those which merely 
prescribe the manner in which such rights and responsi
bilities may be exercised and enforced in a court are 
"procedural laws". State ex reI. Blood v. Gibson Circuit 
Court, 239 Ind. 394, 157 N.E.2d 475, 478. See also 
Procedure. Compare Substantive law. 
Procedure. The mode of proceeding by which a legal 
right is enforced, as distinguished from the substantive 
law which gives or defines the right, and which, by

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PROCEDURE 
means of the proceeding, the court is to administer; the 
machinery, as distinguished from its product. That 
which regulates the formal steps in an action or other 
judicial proceeding; a form, manner, and order of con
ducting suits or prosecutions; e.g. Rules of Civil or 
Criminal Procedure. The judicial process for enforcing 
rights and duties recognized by substantive law and for 
justly administering redress for infraction of them. 
Sims v. United Pacific Ins. Co., D.C. ldaho, 51 F.Supp. 
433, 435. 
Procedure is machinery for carrying on lawsuit in
cluding pleading, process, evidence and practice, wheth
er in trial court or appellate court. Brooks v. Texas 
Emp. Ins. Ass'n, Tex.Civ.App., 358 S.W.2d 412, 414. 
The law of procedure is what is commonly termed by 
jurists "adjective law" (q.v.). 
See also Civil procedure; Criminal procedure; Procedural 
law; Rules of court. Compare Substantive law. 
Proceeding. In a general sense, the form and manner of 
conducting juridical business before a court or judicial 
officer. Regular and orderly progress in form of law, 
including all possible steps in an action from its com
mencement to the execution of judgment. Term also 
refers to administrative proceedings before agencies, tri
bunals, bureaus, or the like. 
An act which is done by the authority or direction of 
the court, agency, or tribunal, express or implied; an act 
necessary to be done in order to obtain a given end; a 
prescribed mode of action for carrying into effect a legal 
right. All the steps or measures adopted in the prosecu
tion or defense of an action. Statter v. United States, 
C.C.A .Alaska, 66 F.2d 819, 822. The word may be used 
synonymously with "action" or "suit" to describe the 
entire course of an action at law or suit in equity from 
the issuance of the writ or filing of the complaint until 
the entry of a final judgment, or may be used to describe 
any act done by authority of a court of law and every 
step required to be taken in any cause by either party. 
The proceedings of a suit embrace all matters that occur 
in its progress judicially. 
Term "proceeding" may refer not only to a complete 
remedy but also to a mere procedural step that is part of 
a larger action or special proceeding. Rooney v. Ver
mont Investment Corp., 10 Cal.3d 351, 110 Cal.Rptr. 353, 
365, 515 P.2d 297. A "proceeding" includes action and 
special proceedings before judicial tribunals as well as 
proceedings pending before quasi-judicial officers and 
boards. State ex reI. Johnson v. Independent School 
Dist. No. 810, Wabasha County, 260 Minn. 237, 109 
N.W.2d 596, 602. In a more particular sense, any appli
cation to a court of justice, however made, for aid in the 
enforcement of rights, for relief, for redress of injuries, 
for damages, or for any remedial object. 
"Proceeding" means any action, hearing, investiga
tion, inquest, or inquiry (whether conducted by a court, 
administrative agency, hearing officer, arbitrator, legis
lative body, or any other person authorized by law) in 
which, pursuant to law, testimony can be compelled to 
be given. Calif.Evid.Code § 901. 
1204 
Collateral proceeding. One in which the particular 
question may arise or be involved incidentally, but 
which is not instituted for the very purpose of deciding 
such question; as in the rule that a judgment cannot be 
attacked, or a corporation's right to exist be questioned, 
in any collateral proceeding. See Collateral estoppel 
doctrine. 
Legal proceedings. See Legal proceedings. 
Ordinary proceedings. Those founded on the regular 
and usual mode of carrying on a suit by due course at 
common law. 
Special proceeding. Generic term for remedies or pro
ceedings which are not ordinary actions; e.g. condemna
tion (Fed.R.Civil P. 71A); vesting title (Rule 70). 
A "special proceeding" has reference to such proceed
ings as may be commenced independently of a pending 
action by petition or motion upon notice in order to 
obtain special relief, and, generally speaking, a special 
proceeding is confined to type of case which was not, 
under the common-law or equity practice, either an 
action at law or a suit in equity. Church v. Humboldt 
County, 248 C.A.2d 855, 57 Cal.Rptr. 79, 81. 
Summary proceeding. Any proceeding by which a con
troversy is settled, case disposed of, or trial conducted, in 
a prompt and simple manner, without the aid of a jury, 
without presentment or indictment, or in other respects 
out of the regular course of the common law. In proce
dure, proceedings are said to be summary when they are 
short and simple in comparison with regular proceed
ings; e.g. conciliation or small claims court proceedings 
as contrasted with usual civil trial. 
Supplementary proceeding. A separate proceeding in an 
original action, in which the court where the action is 
pending is called upon to exercise its jurisdiction in aid 
of execution of the judgment in the action. It is a 
statutory equivalent in actions at law of the creditor's 
bill in equity, and in the majority of states where law 
and equity are merged, is provided as a substitute there
for. See e.g. Fed.R.Civil P. 69. In this proceeding the 
judgment debtor is summoned to appear before the court 
(or a referee or examiner) and submit to an oral exami
nation touching all his property and effects, and if 
property subject to execution and in his possession or 
control is thus discovered, he is ordered to deliver it up, 
or a receiver may be appointed. See Execution; Supple
mentary proceedings. 
Proceeds. Issues; income; yield; receipts; produce; 
money or articles or other thing of value arising or 
obtained by the sale of property; the sum, amount, or 
value of property sold or converted into money or into 
other property. Proceeds does not necessarily mean 
only cash or money. Phelps v. Harris, 101 U.S. 370, 25 
L.Ed. 855. That which results, proceeds, or accrues 
from some possession or transaction. State Highway 
Commission v. Spainhower, Mo., 504 S.W.2d 121, 125. 
The funds received from disposition of assets or from the 
issue of securities (after deduction of all costs and fees).

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As used in context of debtor's sale of collateral, "pro
ceeds" includes whatever is received upon the sale, 
exchange, collection or other disposition of collateral or 
proceeds. Insurance payable by reason of loss or dam
age to the collateral is proceeds, except to the extent 
that it is payable to a person other than a party to the 
security agreement. Money, checks, deposit accounts, 
and the like are "cash proceeds". All other proceeds are 
"non-cash proceeds". U.C.C. § 9-306. 
Proceres /pros;}riyz/. Nobles; lords. The house of lords 
in England is called, in Latin, "Domus Procerum. " For
merly, the chief magistrates in cities. 
Process. A series of actions, motions, or occurrences; 
progressive act or transaction; continuous operation; 
method, mode or operation, whereby a result or effect is 
produced; normal or actual course of procedure; regular 
proceeding, as, the process of vegetation or decomposi
tion; a chemical process; processes of nature. Kelley v. 
Coe, App.D.C., 99 F.2d 435, 441. 
Process is mode, method or operation whereby a result 
is produced; and means to prepare for market or to 
convert into marketable form. Employment Security 
Commission of Ariz. v. Bruce Church, Inc., 109 Ariz. 183, 
507 P.2d 108, 112. 
Patent Law 
An art or method by which any particular result is 
produced. An act or series of acts performed upon the 
subject-matter to be transformed or reduced to a differ
ent state or thing. A means or method employed to 
produce a certain result or effect, or a mode of treat
ment of given materials to produce a desired result, 
either by chemical action, by the operation or applica
tion of some element or power of nature, or of one 
substance to another, irrespective of any machine or 
mechanical device; in this sense a "process" is patenta
ble, though, strictly speaking, it is the art and not the 
process which is the subject of patent. Broadly speak
ing, a "process" is a definite combination of new or old 
elements, ingredients, operations, ways, or means to 
produce a new, improved or old result, and any substan
tial change therein by omission, to the same or better 
result, or by modification or substitution, with different 
function, to the same or better result, is a new and 
patentable process. 
Civil and Criminal Proceedings 
Process is defined as any means used by court to 
acquire or exercise its jurisdiction over a person or over 
specific property. Austin Liquor Mart, Inc. v. Depart
ment of Revenue, 18 Ill.App.3d 894, 310 N.E.2d 719, 728. 
Means whereby court compels appearance of defendant 
before it or a compliance with its demands. Dansby v. 
Dansby, 222 Ga. 118, 149 S.E.2d 252, 254. 
When actions were commenced by original writ, in
stead of, as at present, by summons, the method of 
compelling the defendant to appear was by what was 
termed "original process," being founded on the original 
writ, and so called also to distinguish it from "mesne" or 
PROCESS 
"intermediate" process, which was some writ or process 
which issued during the progress of the suit. The word 
"process," however, as now commonly understood, refers 
to a summons, or, summons and complaint, and, . less 
commonly, to a writ. The content of the summons, and 
service requirements, are provided for in Rule of Civil 
Proc. 4. 
See also Abuse (Process); Alias process; Compuls ory 
process; Constructive service of process; Due process of 
law; Executory process; Long arm statutes; Malicious 
abuse of legal process; Malicious use of process; Prohibi
tion; Service (Service of process); Summons. 
Abuse of process. See Abuse. 
Alias process. See that title. 
Compulsory process. See Compuls ory. 
Criminal process. See Warrant. 
Final process. The last process in an action; i.e. process 
issued to enforce execution of judgment. 
Irregular process. Term is usually applied to process not 
issued in strict conformity with the law, whether the 
defect appears upon the face of the process, or by refer
ence to extrinsic facts, and whether such defects render 
the process absolutely void or only voidable. Under 
current practice, a defective summons may be amended 
under Rule of Civil Proc. 15. 
Judicial process. In a wide sense, this term may include 
all the acts of a court from the beginning to the end of 
its proceedings in a given cause; but more specifically it 
means the writ, summons, mandate, or other process 
which is used to inform the defendant of the institution 
of proceedings against him and to compel his appear
ance, in either civil or criminal cases. 
Legal process. This term is sometimes used as equiva
lent to "lawful process." Thus, it is said that legal 
process means process not merely fair on its face, but in 
fact valid. But properly it means a summons, writ, 
warrant, mandate, or other process issuing from a court. 
Mesne process. As distinguished from final process, this 
signifies any writ or process issued between the com
mencement of the action and the suing out of execution. 
"Mesne" in this connection may be defined as interme
diate; intervening; the middle between two extremes. 
The writ of capias ad respondendum was called "mesne" 
to distinguish it, on the one hand, from the original 
process by which a suit was formerly commenced; and, 
on the other, from the final process of execution. 
Original process. That by which a judicial proceeding is 
instituted; process to compel the appearance of the 
defendant (i.e. summons). Distinguished from "mesne" 
process, which issues, during the progress of a suit, for 
some subordinate or collateral purpose; and from "fi
nal" process, which is process of execution. See Sum
mons. 
Process of interpleader. A means of determining the 
right to property claimed by each of two or more per
sons, which is in the possession of a third. See Inter
pleader.

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PROCESS 
Process of law. See Due process of Jaw. 
Regular process. Such as is issued according to rule and 
the prescribed practice, or which emanates, lawfully and 
in a proper case, from a court or magistrate possessing 
jurisdiction. 
Service of process. See Service. 
Summary process. Such as is immediate or instantane
ous, in distinction from the ordinary course, by emanat
ing and taking effect without intermediate applications 
or delays. In some jurisdictions (e.g. Massachusetts), 
term used to describe action for eviction of tenant. 
Trustee process. The name given in some states (partic
ularly in New England) to the process of garnishment or 
foreign attachment. 
Void process. Such as was issued without power in the 
court to award it, or which the court had not acquired 
jurisdiction to issue in the particular case, or which fails 
in some material respect to comply with the requisite 
form of legal process. 
Process agent. Person authorized to accept service of 
process in behalf of another (e.g. on behalf of corpora
tion). 
Processioning. Subjecting to some special treatment, to 
prepare for the market, to convert into marketable 
form, to make usable, marketable or the like. State v. 
Four States Drilling Co., 278 Ala. 273, 177 So.2d 828, 
83l. 
A survey and inspection of boundaries formerly per
formed in some of the American colonies by the local 
authorities. It was analogous in part to the English 
perambulation (q.v.), and was superseded by the intro
duction of the practice of accurate surveying and of 
recording. 
Process patent. A process patent describes and claims a 
new and useful method to produce a desired result or 
any new or useful improvement thereof. 35 U.S.C.A. 
§§ 100, 100. See also Process (Patent Law). 
Process server. Person authorized by law (e.g. sheriff) 
to serve process papers on defendant. 
Processum continuando /pr�ses;}m k;}ntinyuwrendow/. 
In old English practice, a writ for the continuance of 
process after the death of the chief justice or other 
justices in the commission of oyer and terminer. 
Processus legis est gravis vexatio; executio legis 
coronat opus /pr;}ses;}m liyj;}s est greyv;}s 
vekseysh(iy)ow; eks;}kyuwsh(iy)ow k;}rown;}t OWP;}s/. 
The process of the law is a grievous vexation; the 
execution of the law crowns the work. The proceedings 
in an action while in progress are burdensome and 
vexatious; the execution, being the end and object of the 
action, crowns the labor, or rewards it with success. 
Proces-verbal. In French law, a true relation in writing 
in due form of law, of what has been done and said 
verbally in the presence of a public officer, and what he 
himself does upon the occasion. It is a species of inquisi
tion of office, and must be signed by the officer. 
1206 
Prochein ami /pr;}shen ;}miy/. (Spelled, also, prochein 
amy and prochain amy.) Next friend. As an infant 
cannot legally sue in his own name, the action must be 
brought by his prochein ami; that is, some friend (not 
being his guardian) who will appear .a s plaintiff in his 
name. 
Prochronism /pro(w)kr;}niz;}m/. An error in chronolo
gy, consisting in dating a thing before it happened. 
Procinctus /pr;}silJ(k)t;}s/. Lat. In the Roman law, a 
girding or preparing for battle. Testamentum in pro
cinctu, a will made by a soldier, while girding himself, or 
preparing to engage in battle. 
Proclaim. To promulgate; to announce; to publish, by 
governmental authority, intelligence of public acts or 
transactions or other matters important to be known by 
the people. To give wide publicity to; to disclose. 
Proclamation. The act of publicly proclaiming or pub
lishing; a formal declaration; an avowal; a public an
nouncement giving notice of a governmental act that 
has been done or is to be done. The act of causing some 
governmental matters to be published or made generally 
known. A written or printed document in which are 
contained such matters, issued by proper authority, 
usually by a high governmental executive (President, 
Governor, Mayor). 
The declaration made by the bailiff, by authority of 
the court, that something is about to be done. 
In equity practice, proclamation made by a sheriff 
upon a writ of attachment, summoning a defendant who 
has failed to appear personally to appear and answer 
the plaintiffs bill. 
Proclamation by lord of manor. In old English law, 
proclamation made by the lord of a manor (thrice re
peated) requiring the heir or devisee of a deceased 
copyholder to present himself, pay the fine, and be 
admitted to the estate; failing which appearance, the 
lord might seize the lands quousque (provisionally). 
Proclamation of a fine. In old English law, the notice 
or proclamation at common law which was made after 
the engrossment of a fine of lands, and which consisted 
in its being openly read in court sixteen times, viz., four 
times in the term in which it was made, and four times 
in each of the three succeeding terms, which, however, 
was afterwards reduced to one reading in each term. 
Proclamation of exigents /prokl;}meysh;}n ;}V 
egz;}j;}nts/. In old English law, when an exigent was 
awarded, a writ of proclamation issued, at the same 
time, commanding the sheriff of the county wherein the 
defendant dwelt to make three proclamations thereof in 
places the most notorious, and most likely to come to his 
knowledge, a month before the outlawry should take 
place. 
Proclamation of rebellion. In old English law, a proc
lamation to be made by the sheriff commanding the 
attendance of a person who had neglected to obey a 
subprena or attachment in chancery. If he did not 
surrender himself after this proclamation, a commission 
of rebellion issued.

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1207 
Proclamation of recusants /prokl;;)meysh:m ;;)v reky;;)
z;;)ntsrr;;)kyuwz;;)nts/. A proclamation whereby recu
sants were formerly convicted, on non-appearance at the 
assizes. 
Proclamator /prokl;;)meyt;;)r/. An officer of the English 
court of common pleas. 
Pro confesso /prow k;;)nfesow/. For confessed; as con
fessed. A term applied to a bill in equity, and the 
decree founded upon it, where no answer is made to it 
by the defendant. Under rules practice, this has been 
replaced by a default for want of prosecution. Fed.R. 
Civil P. 55(a). 
Pro consilio /prow k;;)nsil(i)yow/. For counsel given. 
An annuity pro consilio amounts to a condition, but in a 
feoffment or lease for life, etc., it is the consideration, 
and does not amount to a condition; for the state of the 
land by the feoffment is executed, and the grant of the 
annuity is executory. 
Pro-consul /prowkons;;)l/. Lat. In the Roman law, orig
inally a consul whose command was prolonged after his 
office had expired. An officer with consular authority, 
but without the title of "consul." The governor of a 
province. 
Pro corpore regni /prow korp;;)riy regnay /. In behalf of 
the body of the realm. 
Procreation. The generation of children. 
Proctor /prokt;;)r/. One appointed to manage the affairs 
of another or represent him in judgment. A procurator, 
proxy, or attorney. Formerly, an officer of the admiral
ty and ecclesiastical courts whose duties and business 
correspond exactly to those of an attorney at law or 
solicitor in chancery. See also Power of attorney; Proc
uration; Proxy. 
Procuracy /proky;;)r;;)siy/. The writing or instrument 
which authorizes a procurator to act. 
Procurador del comun /prokuraoor del komuwn /. Sp. 
In Spanish law, an officer appointed to make inquiry, 
put a petitioner in possession of land prayed for, and 
execute the orders of the executive in that behalf. Le
compte v. U. S., 52 U.S. (11 How.) 115, 126, 13 L.Ed. 627. 
Procurare /proky;;)reriy/. Lat. To take care of anoth
er's affairs for him, or in his behalf; to manage; to take 
care of or superintend. 
Procuratio /proky;;)reysh(iy)ow/. Lat. Management of 
another's affairs by his direction and in his behalf; 
procuration; agency. 
Procuratio est exhibitio sumptuum necessariorum 
facta prrelatis, qui diceceses peragrando, ecclesias 
subjectas visitant /proky;;)reysh(iy)ow est 
eks;;)bish(iy)ow s;)m(p)tyuw;;)m nes;;)seriyor;;)m frekt;;) 
pr;;)leyt;;)s, kway day;;)siyziyz pehr;;)grrendow, ;;)kliyziy;;)s 
s;;)bjekt;;)s viz;;)trentl. Procuration is the providing of 
necessaries for the bishops, who, in traveling through 
their dioceses, visit the churches subject to them. 
Procuration /proky;;)reysh;;)n/. Agency; proxy; the act 
of constituting another one's attorney in fact. The act 
PROCURATOR LITIS 
by which one person gives power to another to act in his 
place, as he could do himself. Action under a po,,:"er of 
attorney or other constitution of agency. Indorsmg a 
bill or note "by procuration" is doing it as proxy for 
another or by his authority. The use of the word 
procuration (usually, per procuratione, or abbreviated to 
per proc. or p. p.) on a promissory note by an agent is 
notice that the agent has but a limited authority to sign. 
An express procuration is one made by the express 
consent of the parties. An implied or tacit procuration 
takes place when an individual sees another managing 
his affairs and does not interfere to prevent it. Proc
urations are also divided into those which contain abso
lute power, or a general authority, and those which give 
only a limited power. 
Also, the act or offence of procuring women for lewd 
purposes. 
See also Proctor; Procure; Proxy. 
Procurationem adversus nulla est prrescriptio /pro
ky;;)reyshiyown;;)m ;;)dv;)rs;;)s n;)b est pr;;)skripsh
(iy)ow/. There is no prescription against procuration. 
Procuration fee, or money /proky;;)reysh;;)n fiy/om;)niy/. 
In English law, brokerage or commission allowed to 
scriveners and solicitors for obtaining loans of money. 
Procurator /proky;;)reyt;;)r/. In the civil law, a proctor; 
a person who acts for another by virtue of a procuration. 
In old English law, an agent or attorney; a bailiff or 
servant. A proxy of a lord in parliament. 
In ecclesiastical law, one who collected the fruits of a 
benefice for another. An advocate of a religious house, 
who was to solicit the interest and plead the causes of 
the society. A proxy or representative of a parish 
church. 
See Proctor; Procuration. 
Procuratores ecclesire parochialis /proky;;)r;;)toriyz 
;;)kliyziyiy p;;)rowkiyeyl;;)s/. The old name for church
wardens. 
Procurator in rem suam /proky;;)reyd;;)r in rem 
s(y)uw;;)m/. Proctor (attorney) in his own affair, or with 
reference to his own property. This term is used in 
Scotch law to denote that a person is acting under a 
procuration (power of attorney) with reference to a thing 
which has become his own property. 
Procuratorium /proky;;)r;;)toriy;;)m/. In old English law, 
the procuratory or instrument by which any person or 
community constituted or delegated their procurator or 
proctors to represent them in any judicial court or 
cause. 
Procurator litis /proky;;)reyd;;)r hiyt;;)s/. In the civil law, 
one who by command of another institutes and carries 
on for him a suit. Procurator is properly used of the 
attorney of actor (the plaintift), defensor of the attorney 
of reus (the defendant). It is distinguished from advoca
tus who was one who undertook the defence of persons, 
not things, and who was generally the patron of the 
person whose defence he prepared, the person himself 
speaking it. It is also distinguished from cognitor who

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PROCURATOR LITIS 
conducted the cause in the presence of his principal, and 
generally in cases of citizenship; whereas the procurator 
conducted the cause in the absence of his principal. 
Procurator negotiorum Iproky;m�yt�r n�gowshiy6r�m /. 
In the civil law, an attorney in fact; a manager of 
business affairs for another person. 
Procurator provincire Iproky�reyt�r pr�vinshiyiy/. In 
Roman law, a provincial officer who managed the affairs 
of the revenue, and had a judicial power in matters that 
concerned the revenue. 
Procuratrix Iproky�reytr�ks/. In old English law, a 
female agent or attorney in fact. 
Procure. To initiate a proceeding; to cause a thing to be 
done; to instigate; to contrive, bring about, effect, or 
cause. To persuade, induce, prevail upon, or cause a 
person to do something. Rose v. Hunter, 155 Cal.App.2d 
319, 317 P.2d 1027, 1030. To obtain, as a prostitute, for 
another. Procure connotes action and means to cause, 
acquire, gain, get, obtain, bring about, cause to be done. 
Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589, 593. 
To find or introduce;-said of a broker who obtains a 
customer. To bring the seller and the buyer together so 
that the seller has an opportunity to sell. See also 
Finder; Pander; Procurer. 
Procurement. The act of obtaining, attainment, acquisi
tion, bringing about, effecting. Ford v. City of Caldwell, 
79 Idaho 499, 321 P.2d 589, 593. See also Procure. 
Procurement contract. A government contract with a 
manufacturer or supplier of goods or machinery or ser
vices under the terms of which a sale or service is made 
to the government. Such contracts, including the bid
ding process, are governed by government regulations, 
standard forms, etc. See Federal Acquisition Regulations. 
Procurer Ipr�kyur�r/. One who prevails upon, induces 
or persuades a person to do something. One who pro
cures for another the gratification of his lusts; a pimp; 
a panderer. One who solicits trade for a prostitute or 
lewd woman. One that procures the seduction or prosti
tution of girls. The offense is punishable by statute. 
See e.g. Model Penal Code, § 251.2. 
One who uses means to bring anything about, espe
cially one who does so secretly and corruptly. As re
gards solicitation of crime, see Solicitation. 
Procureur Iprokyur(y)ur/. In French law, an attorney; 
one who has received a commission from another to act 
on his behalf. There were in France two classes of 
procureurs: Procureurs ad negotia, appointed by an indi
vidual to act for him in the administration of his affairs; 
persons invested with a power of attorney; correspond
ing to "attorneys in fact." Procureurs ad lites were 
persons appointed and authorized to act for a party in a 
court of justice. These corresponded to attorneys at law 
(now called, in England, "solicitors of the supreme 
court"). The order of procureurs was abolished in 1791, 
and that of avoues established in their place. 
Procureur de la republique Iprokyur(y)ur d� la 
reypubliyk/. (Formerly procureur du roi.) In French 
1208 
law, a public prosecutor, with whom rests the initiation 
of all criminal proceedings. In the exercise of his office 
(which appears to include the apprehension of offenders) 
he is entitled to call to his assistance the public force 
(posse comitatus); and the officers of police are auxiliary 
to him. 
Procureur general, or imperial Iprokyur(y)ur jen�ral 
/"imperiy al/. In French law, an officer of the imperial 
court, who either personally or by his deputy prosecuted 
every one who was accused of a crime according to the 
forms of French law. His functions were apparently 
confined to preparing the case for trial at the assizes, 
assisting in that trial, demanding the sentence in case of 
a conviction, and being present at the delivery of the 
sentence. He had a general superintendence over the 
officers of police and of the juges d'instruction, and he 
required from the procureur du roi a general report once 
in every three months. 
Procuring cause. The proximate cause; the cause origi
nating a series of events, which, without break in their 
continuity, result in the accomplishment of the prime 
object. The inducing cause; the direct or proximate 
cause. Substantially synonymous with "efficient 
cause." 
A broker will be regarded as the "procuring cause" of 
a sale, so as to be entitled to commission, if his or her 
efforts are the foundation on which the negotiations 
resulting in a sale are begun. A cause originating a 
series of events which without break in their continuity 
result in accomplishment of prime objective of the em
ployment of the broker who is producing a purchaser 
ready, willing and able to buy real estate on the owner's 
terms. Mohamed v. Robbins, 23 Ariz.App. 195,531 P.2d 
928, 930. 
See also Producing cause; Proximate cause. 
Pro defectu emptorum Iprow d�fekt(y)uw em(p)t6r�m/. 
For want (failure) of purchasers. 
Pro defectu exitus Iprow d�fekt(y)uw egz�t�s/. For, or 
in case of, default of issue. 
Pro defectu hreredis Iprow d�fekt(y)uw h�riyd�s/. For 
want of an heir. 
Pro defectu justitire Iprow d�fekt(y)uw j;}stishiyiy/. For 
defect or want of justice. 
Pro defendente Iprow der�ndentiy/. For the defendant. 
Commonly abbreviated "pro def." 
Pro derelicto Iprow dehr�liktow/. As derelict or aban
doned. A species of usucaption in the civil law. 
Prodigal. Wasteful; extravagant. A spendthrift. 
In civil law, a person who, though of full age, is 
incapable of managing his affairs, and of the obligations 
which attend them, in consequence of his bad conduct, 
and for whom a curator is therefore appointed. See 
Prodigus. 
Pro dignitate regali Iprow dign�teytiy r�geylay/. In 
consideration of the royal dignity.

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1209 
Prodigus Ipr6dO)gO)s/. Lat. In Roman law, a prodigal; a 
spendthrift; a person whose extravagant habits mani
fested an inability to administer his own affairs, and for 
whom a guardian might therefore be appointed. 
Prodition I prowdish:m I . Treason; treachery. 
Proditor IprowdO)tO)r/. A traitor. 
Proditorie Iprowd;}toriyiy/. Treasonably. This is a 
technical word formerly used in indictments for treason, 
when they were written in Latin. 
Pro diviso Iprow d;}vilyzow/. As divided; i.e., in several
ty. 
Pro domino Iprow dom;}now I. As master or owner; in 
the character of mru3ter. 
Pro donato Iprow d;}neytow/. As a gift; as in case of 
gift; by title of gift. A species of usucaption in the civil 
law. 
Pro dote Iprow dowtiy/. As a dowry; by title of dowry. 
A species of usucaption. 
Produce I pro(w)d(y)uws I , n. The product of natural 
growth, labor, or capital . Articles produced or grown 
from or on the soil, or found in the soil. 
Produce Ipr;}d(y)uws/, v. To bring forward; to show or 
exhibit; to bring into view or notice; as, to present a 
play, including its presentation in motion pictures. To 
produce witnesses or documents at trial in obedience to 
a subpoena (Fed.R.Civil P. 45; Fed.R.Crim.P. 17); or to 
be compelled to produce materials subject to discovery 
rules (Fed.R.Civil P. 37; Fed.R.Crim.P. 16). 
To make, originate, or yield, as gasoline. To bring to 
the surface, as oil. 
To yield, as revenue. Thus, sums are "produced" by 
taxation, not when the tax is levied, but when the sums 
are collected. 
Producent Ipr;}d(y)uws;}ntl. The party calling a witness 
under the old system of the English ecclesiastical courts. 
Producer. One who produces, brings forth, or generates. 
Boland v. Cecil, 65 Cal.App.2d Supp. 832, 150 P.2d 819, 
822. Term is commonly used to denote person who 
raises agricultural products and puts them in condition 
for the market. Tennessee Burley Tobacco Growers' 
Ass'n v. Commodity Credit Corp., C.A.Tenn., 350 F.2d 
34, 41. 
Producer price index. Measure of wholesale price 
changes issued monthly by U.S. Bureau of Labor Statis
tics. Compare Consumer Price Index. 
Producing. Bring about; to cause to happen or take 
place, as an effect or result. Strong v. Aetna Casualty & 
Surety Co., Tex.Civ.Ap p., 170 S.W.2d 786, 788. 
Producing cause. Respecting broker's commission, is 
act which, continuing in unbroken chain of cause and 
effect, produces result. Schebesta v. Stewart, Tex.Civ. 
App., 37 S.W.2d 781, 786. A producing cause of an 
employee's death for which compensation is sought is 
that cause which, in a natural and continuous sequence, 
produces the death, and without which death would not 
PRODUCT LIABILITY 
have occurred. Jones v. Traders & General Ins. Co., 140 
Tex. 599, 169 S.W.2d 160, 162. A producing cause is an 
efficient, existing, or contributing cause which, in natu
ral and continuing sequence, produces the injury or 
damage complained of, if any. O. M. Franklin Serum 
Co. v. C. A. Hoover and Son, Tex.Civ.App ., 437 S.W.2d 
613, 619. See also Procuring cause; Proximate cause. 
Product. With reference to property, term refers to 
proceeds; yield; income; receipts; return. Goods pro
duced or manufactured, either by natural means, by 
hand, or with tools, machinery, chemicals, or the like. 
Something produced by physical labor or intellectual 
effort or something produced naturally or as result of 
natural process as by generation or growth. Minnesota 
Power & Light Co. v. Personal Property Tax, Taxing 
Dist., City of Fraser, School Dist. No. 695, 289 Minn. 64, 
182 N.W.2d 685, 691. 
Production. Process or act of producing. That which is 
produced or made; i.e. goods. Fruit of labor, as the 
productions of the earth, comprehending all vegetables 
and fruits; the productions of intellect, or genius, as 
poems and prose compositions; the productions of art, as 
manufactures of every kind. 
Production for commerce. Within Fair Labor Stan
dards Act, includes production of goods which, at time of 
production, employer, according to normal course of his 
business, intends or expects to move in interstate com
merce immediately following initial sale. Fair Labor 
Standards Act of 1938, §§ 6, 7; 29 U.S.C.A. §§ 206, 207. 
Hill v. Janes, D.C.Ky., 59 F.Supp. 569, 572. 
Production of suit. In common law pleading, the for
mula, "and therefore [or thereupon] he brings his suit," 
etc., with which declarations always conclude. This 
referred to the production by the plaintiff of his secta or 
suit, i.e. persons prepared to confirm what he had stated 
in the declaration. 
Productio sectre Ipr;}d�ksh(iy)ow sektiy/. In old English 
law, production of suit; the production by a plaintiff of 
his secta or witnesses to prove the allegations of his 
count. 
Product liability. Refers to the legal liability of manu
facturers and sellers to compensate buyers, users, and 
even bystanders, for damages or injuries suffered be
cause of defects in goods purchased. A tort which 
makes a manufacturer liable if his product has a defec
tive condition that makes it unreasonably dangerous to 
the user or consumer. Cobbins v. General Acc. Fire & 
Life Assur. Corp., 3 Ill.App.3d 379, 279 N.E.2d 443, 446. 
Although the ultimate responsibility for injury or 
damage in a products liability case most frequently rests 
with the manufac turer, liability may also be imposed 
upon a retailer, occasionally upon a wholesaler or mid
dleman, a bailor or lessor, and infrequently upon a party 
wholly outside the manufacturing and . distributing pro
cess, such as a certifier. This ultimate responsibility 
may be imposed by an action by the plaintiff against the 
manufacturer directly, or by a claim for indemnifica
tion, asserted by way of a cross-claim or third party 
claim by the retailer or wholesaler, or others who might

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PRODUCT LIABILITY 
be held liable for the injury caused by a defective 
product. Under modern principles of products liability, 
and with the elimination of privity requirements in 
most instances, recovery is no longer limited to the 
purchaser of the product, or even to a user, but may 
extend to the non-user; the bystander who is in jured or 
damaged by a defective product, for example. However, 
the term "products liability" normally contemplates in
jury or damage caused by a defective product, and if loss 
occurs as a result of a condition on the premises, or as a 
result of a service, as distinguished from loss occasioned 
by a defective product, a products liability claim does 
not ordinarily arise, even though a product may be 
involved. 
For statutory time limits in bringing products liability 
actions, see Statute (Statute of repose). 
See also Economic loss; Enterprise liability; In tended 
use doctrine; Latent defect; Privity; Strict liabili ty; Warran
ty. 
Product liability insurance. Type of insurance cover
age which protects manufacturers and suppliers when 
claims are made for injuries and damage incurred in the 
use of their goods or products. 
Product market. In antitrust law, the product market 
includes all other products that can be reasonably sub
stituted by consumers for the product of the business 
under investigation. The determination of the product 
market is important in the assessment of the market 
power of the business. 
Pro emptore Iprow em(p)t6riy/. As a purchaser; by the 
title of a purchaser. A species of usucaption. 
Pro facto Iprow frektow/. For the fact; as a fact; con
sidered or held as a fact. 
Pro falso clamore suo Iprow f61(t)sow kbm6riy 
s(y)uwow/. A nominal amercement of a plaintiff for his 
false claim, which used to be inserted in a judgment for 
the defendant. Obsolete. 
Profane. Irreverence toward God or holy things. Writ
ing, speaking, or acting, in manifest or implied contempt 
of sacred things. Town of Torrington v. Taylor, 59 Wyo. 
109, 137 P.2d 621, 624; Duncan v. U. S., C.c.A.Or., 48 
F .2d 128, 133. That which has not been consecrated. 
Profanity. Irreverence towards sacred things; particu
larly, an irreverent or blasphemous use of the name of 
God. Vulgar, irreverent, or coarse language. It is a 
federal offense to utter an obscene, indecent, or profane 
language on the radio. 18 U.S.C.A. § 1464. See also 
Obscenity. 
Profectitius Iprowfektish(iy)�s/. Lat. In the civil law, 
that which descends to us from our ascendants. 
Profer or Profert Iprowf�r/. In old English law, an 
offer or proffer; an offer or endeavor to proceed in an 
action, by any man concerned to do so. A return made 
by a sheriff of his accounts into the exchequer; a pay
ment made on such return. See Profert in curia. 
Profert in curia Ipr6f�rt �n kyuriy�(m)/. L. Lat. 
(Sometimes written profert in curiam.) He produces in 
1210 
court. In old practice, these words were inserted in a 
declaration, as an allegation that the plaintiff was ready 
to produce, or did actually produce, in court, the deed or 
other written instrument on which his suit was founded, 
in order that the court might inspect the same and the 
defendant hear it read. The same formula was used 
where the defendant pleaded a written instrument. 
An allegation formally made in a pleading, where a 
party alleged a deed, that he showed it in court, it being 
in fact retained in his own custody. But by virtue of the 
allegation, the deed was then constructively in posses
sion of the court. The profert of any recorded instru
ment, as letters patent, was equivalent to annexing a 
copy. This result did not occur, however, in the case of 
other documents, such as a note. 
-
Profess. To make open declaration of; to make public 
declaration or avowal. 
Professio juris Ipr�fesh(iy)ow jur�s/. In conflicts and 
contract law, a recognition of the right of parties to a 
contract to stipulate in the document the law which will 
govern their contract. 
Profession. A vocation or occupation requiring special, 
usually advanced, education, knowledge, and skill; e.g. 
law or medical professions. Also refers to whole body of 
such profession. 
The labor and skill involved in a profession is predom
inantly mental or intellectual, rather than physical or 
manual. 
The term originally contemplated only theology, law, 
and medicine, but as applications of science and learn
ing are extended to other departments of affairs, other 
vocations also receive the name, which implies professed 
attainments in special knowledge as distinguished from 
mere skill. 
Act of professing; a public declaration respecting 
something. Profession of faith in a religion. 
Professional. One engaged in one of learned professions 
or in an occupation requiring a high level of training 
and proficiency. Reich v. City of Reading, 3 Pa.Cmwlth. 
511, 284 A.2d 315, 319. 
Professional association. Any group of professional 
people organized to practice their profession together, 
though not necessarily in corporate or partnership form. 
A group of professionals organized for education, social 
activity, lobbying and the like; e.g. bar or medical asso
ciation. See also Corporation (Professional corporation). 
Professional conduct or responsibility. As regards 
the legal profession, see Canon; Model Rules of Profes
sional Conduct. 
Professional corporation. See Corporation. 
Proffer. To ·offer or tender, as, the production of a 
document and offer of the same in evidence. 
Proffered evidence. See Proffer. 
Proficua Ipr�fikyuw�/. L. Lat. In old English law, 
profits; especially the "issues and profits" of an estate 
in land.

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1211 
Profit. Most commonly, the gross proceeds of a business 
transaction less the costs of the transaction; i.e. net 
proceeds. Excess of revenues over expenses for a trans
action; sometimes used synonymously with net income 
for the period. Gain realized from business or invest
ment over and above expenditures. 
Profit means accession of good, valuable results, use
ful consequences, avail, gain, as an office of profit, excess 
of returns over expenditures or excess of income over 
expenditure. U. S. v. Mintzes, D.C.Md., 304 F.Supp. 
1305, 1312. 
The benefit, advantage, or pecuniary gain accruing to 
the owner or occupant of land from its actual use; as in 
the familiar phrase "rents, issues and profits," or in the 
expression "mesne profits." 
A division sometimes made of incorporeal heredit
aments. Profits are divided into profits it prendre and 
profits it rendre (q.v.). 
Community of profits. See that title. 
Gross profit. The difference between sales and cost of 
goods sold, but excluding expenses and taxes. See also 
Gross income. 
Mesne profits. Intermediate profits; that is, profits 
which have been accruing between two given periods. 
Value of use or occupation of land during time it was 
held by one in wrongful possession and is commonly 
measured in terms of rents and profits. Thus, after a 
party has recovered the land itself in an action of 
ejectment, he frequently brings another action for the 
purpose of recovering the profits which have been accru
ing or arising out of the land between the time when his 
title to the possession accrued or was raised and the 
time of his recovery in the action of ejectment, and such 
an action is thence termed an "action for mesne profits." 
Net profit. The amount arrived at by deducting from 
total revenue the cost of goods sold and all expenses. 
See also Net income; Net profits. 
Operating profit. The profit arrived at by deducting 
from sales all expenses attributable to operations but 
excluding expenses and income related to non-operating 
activities such as interest payments. 
Paper profit. Profit not yet realized as derived from an 
appreciation in value of an asset not yet sold (e.g. gain 
on an unsold stock). 
Profit and loss. The gain or loss arising from goods 
bought or sold, or from carrying on any other business, 
the former of which, in bookkeeping, is placed on the 
creditor's side; the latter on the debtor's side. See also 
Profit and loss account; Profit and loss statement. 
Profit it prendre IprOfad a prondar/. Called also "right 
of common ." A right exercised by one person in the soil 
of another, accompanied with participation in the profits 
of the soil thereof. A right to take a part of the soil or 
produce of the land. A right to take from the soil, such 
as by logging, mining, drilling, etc. The taking (profit) 
is the distinguishing characteristic from an easement. 
PROFIT.SHARING PLAN 
Right of "profit a prendre" is a right to make some 
use of the soil of another, such as a right to mine metals, 
and it carries with it the right of entry and the right to 
remove and take from the land the designated products 
or profit and also includes right to use such of the 
surface as is necessary and convenient for exercise of 
the profit. Costa Mesa Union School Dist. of Orange 
County v. Security First Nat. Bank, 254 Cal.App.2d 4, 62 
Cal.Rptr. 113, 118. 
Profit it rendre IprOfad a rondar/. Such as is received at 
the hands of and rendered by another. The term com
prehends rents and services. 
Surplus profits. Within the meaning of a statute pro
hibiting the declaration of corporate dividends other 
than from such profits, means the excess of receipts over 
expenditures, or net earnings or receipts, or gross re
ceipts, less expenses of operation. Of a corporation, the 
difference over and above the capital stock, debts, and 
liabilities. 
Undistributed profits. Profits which have not been dis
tributed to the stockholders in the form of dividends 
though earned by the corporation. See also Un distrib
uted profits tax. 
Undivided profits. See that title. 
Profit and loss account. A transfer account of all 
income and expense accounts which is closed into the 
retained earnings of a corporation or the capital account 
of a partnership. 
Profit and loss statement. A statement showing the 
income, costs and expenses of a business over a specific 
period of time; the difference being the income or loss 
for the period. See also In come statement. 
Profiteering. Taking advantage of unusual or excep
tional circumstances to make excessive profits; e.g. sell
ing of scarce or essential goods at inflated prices during 
time of emergency or war. See Insider trading. 
Profit margin. Sales minus all expenses as a single 
amount. The ratio of income to sales revenue. Fre
quently used to mean the ratio of sales minus all operat
ing expenses divided by sales. A high profit margin is 
desirable as it indicates that a company is receiving a 
good return on the cost of goods sold. 
Profit-sharing plan. A plan established and main
tained by an employer to provide for the participation in 
the profits of the company by the employees or their 
beneficiaries. In order to qualify for tax benefits, the 
plan must provide a definite predetermined formula for 
allocating the contributions made to the plan among the 
participants and for distributing the funds accumulated 
under the plan after a fixed number of years, the attain
ment of a stated age, or upon the prior occurrence of 
some event such as layoff, illness, disability, retirement, 
death, or severance of employment. Such plans are 
regulated by the federal Employee Retirement Income 
Security Act (ERISA). See also Employee Stock Owner
ship Plan (ESOP).

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PROFIT-SHARING PLAN 
Qualified profit sharing plan. An employer-sponsored 
plan that meets the requirements of I.R.C. § 401. If 
these requirements are met, none of the employer's 
contributions to the plan will be taxed to the employee 
until distributed to him or her (§ 402). The employer 
will be allowed a deduction in the year the contributions 
are made (§ 404). 
Pro forma /prow f6rm �/. As a matter of form or for the 
sake of form. Used to describe accounting, financial, 
and other statements or conclusions based upon as
sumed or anticipated facts. 
The phrase "pro forma," in an appealable decree or 
judgment, usually means that the decision was ren
dered, not on a conviction that it was right, but merely 
to facilitate further proceedings. Cramp & Sons S. & E. 
Bldg. Co. v. Turbine Co., 228 U.S. 645, 33 S.Ct. 722, 57 
L.Ed. 1003. 
Progener /prowjiyn�r/. Lat. In the civil law, a grand
son-in-law. 
Progressive tax. A type of graduated tax which applies 
higher tax rates as the income of the taxpayer increases. 
Compare Regressive tax. 
Pro hac vice / prow hrek vaysiy /. For this turn; for this 
one particular occasion. For example, an out-of-state 
lawyer may be admitted to practice in a local jurisdic
tion for a particular case only. 
Prohibetur ne quis faciat in suo quod nocere possit 
alieno /prow(h)�biyt�r niy kwis freshiy�t in s(y)uwow 
kwod nos�riy pos�t reliyiynow /. It is forbidden for any 
one to do or make on his own [land] what may injure 
anoth er's. 
Prohibit. To forbid by law; to prevent;-not synon
ymous with "regulate." 
Prohibited degrees. Those degrees of relationship by 
consanguinity which are so close that marriage between 
persons related to each other in any of such degrees is 
forbidden by law; e.g. brother and sister. 
Prohibitio de vasto, directa parti /prow(h)�bish(iy)ow 
diy vrestow, d�rekt� partay /. A judicial writ which was 
formerly addressed to a tenant, prohibiting him from 
waste, pending suit. 
Prohibition. Inhibition; interdiction. Act or law pro
hibiting something, as 18th Amendment to U.S.C onst. 
(1920) prohibited the manufact ure, sale, or transporta
tion of intoxicating liquors, except for medicinal pur
poses (such Prohibition Amendment was repealed by 
21st Amendment in 1933). 
Writ or process. Prohibition is that process by which a 
superior court prevents an inferior court or tribunal 
possessing judicial or quasi-judicial powers from exceed
ing its jurisdiction in matters over which it has cogni
zance or usurping matters not within its jurisdiction to 
hear or determine. The Florida Bar, Fla., 329 So.2d 301, 
302. A means of restraint on judicial personnel or 
bodies to prevent usurpation of judicial power, and its 
essential function is to confine inferior courts to their 
proper jurisdiction and to prevent them from acting 
1212 
without or in excess of their jurisdiction; it is preventive 
in nature rather than corrective. State ex reI. McDon
nell Douglas Corp. v. Gaertner, Mo.App., 601 S.W.2d 
295, 296. 
The writ of prohibition is the counterpart of the writ 
of mandamus. 
Pro ilia vice /prow il� vaysiy/. For that turn. 
Pro indefenso /prow ind�fensow /. As undefended; as 
making no defense. 
Pro indiviso /prow ind�vayzow/. As undivided; in com
mon. The joint occupation or possession of lands. 
Thus, lands held by coparceners are held pro indiviso; 
that is, they are held undividedly, neither party being 
entitled to any specific portions of the land so held, but 
both or all having a joint interest in the undivided 
whole. 
Pro interesse suo /prow int�resiy s(y)uwow/. According 
to his interest; to the extent of his interest. Thus, a 
third party may be allowed to intervene in a suit pro 
interesse suo. 
Examination pro interesse suo. When a person claims 
to be entitled to an estate or other property sequestered, 
whether by mortgage, judgment, lease; or otherwise, or 
has a title paramount to the sequestration, he should 
apply to the court to direct an inquiry whether the 
applicant has any, and what, interest in the property; 
and this inquiry is called an "examination pro interesse 
suo." Krippendorf v. Hyde, 110 U.S. 276, 4 S.Ct. 27, 28 
L.Ed. 145; Hitz v. Jenks, 185 U.S. 155, 22 S.Ct. 598, 46 
L.Ed. 851. 
Projectio /pr�jeksh(iy)ow/. Lat. In old English law, a 
throwing up of earth by the sea. 
Projet /prowzhey/. Fr. In international law, the draft 
of a proposed treaty or convention. 
Projet de loi /prowzhey d�lwa/. A bill in a legislative 
body. 
Pro lresione fidei / prow liyzhiy6wniy faydiyay / . For 
breach of faith. 
Pro legato /prow l�geytow/. As a legacy; by the title of 
a legacy. A species of usucaption. 
Prolem ante matrimonium natam, ita ut post legiti
mam, lex civilis succedere facit in hrereditate paren
tum; sed prolem, quam matrimonium non parit, 
succedere non sinit lex anglorum /pr6wl�m rentiy 
mretr�mown(i)y�m neyt�m, ayt� �t powst l�jit�m�m, leks 
siv�bs s�ksiyt�riy feys�t in h�red�teytiy p�rent�m; sed 
prowl�m, kwrem mretr�m6wn(i)y�m non per�t, 
s�ksiyd�riy non sayn�t leks reIJgI6r�m/. The civil law 
permits the offspring born before marriage, provided 
such offspring be afterwards legitimized, to be the heirs 
of their parents; but the law of the English does not 
suffer the offspring not produced by the marriage to 
succeed. 
Proles /prowliyz/. Lat. Off spring; progeny; the issue 
of a lawful marriage. In its enlarged sense, it signifies 
any children.

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1213 
Proles sequitur sortem paternam /prowliyz sekw;)t;)r 
sord;)m p;)t:}rn;)m/. The offspring follows the condition 
of the father. 
Proletariat, proletariate /prowl;)teriy;)t/OtrerO /. The 
class or body of proletarians. The class of unskilled 
laborers, without property or capital, engaged in the 
lower grades of work. The class of proletarii (see the 
next title); the lowest stratum of the people of a coun
try, consisting mainly of the waste of other classes, or of 
those fractions of the population who, by their isolation 
and their poverty, have no place in the established order 
of society. 
Proletarius /prowl;)teriy;)s/. Lat. In Roman law, a 
proletary; a person of poor or mean condition; one 
among the common people whose fortunes were below a 
certain valuation; one of a class of citizens who were so 
poor that they could not serve the state with money, but 
only with their children (proles). 
Prolicide /prowbsayd/. A word used to designate the 
destruction of the human offspring. Jurists divide the 
subject into feticide, or the destruction of the fetus in 
utero, and infanticide, or the destruction of the new-born 
infant. See also Abortion. 
Prolixity /prowliks;)diy/. The unnecessary and super
fluous statement of facts in pleading or in evidence. 
Prolocutor /pr;)lok(y);)t;)r/prowlok(y);)t;)r/. In ecclesias
tical law, the president or chairman of a convocation. 
The speaker of the house of lords is called the prolocu
tor. The office belongs to the lord chancellor by pre
scription. 
Prolongation /prowlol)geysh;)n/. Time added to the du
ration of something; an extension of the time limited for 
the performance of an agreement. 
Pro majori cautela /prow m;)joray kotiyl;)/. For greater 
caution; by way of additional security. Usually applied 
to some act done, or some clause inserted in an instru
ment, which may not be really necessary, but which will 
serve to put the matter beyond any question. 
Promatertera /prowm;}t:}rt::lr;)/. Lat. In the civil law, a 
maternal great-aunt; the sister of one's grandmother. 
Promatertera magna /prowm;)t:}rt;)r;) mregn;)/. Lat. In 
the civil law, a great-great-au nt. 
Promise. A declaration which binds the person who 
makes it, either in honor, conscience, or law, to do or 
forbear a certain specific act, and which gives to the 
person to whom made a right to expect or claim the 
performance of some particular thing. A declaration, 
verbal or written, made by one person to another for a 
good or valuable consideration, in the nature of a cove
nant by which the promisor binds himself to do or 
forbear some act, and gives to the promisee a legal right 
to demand and enforce a fulfillment. An express under
taking, or agreement to carry a purpose into effect. E. 
I. Du Pont De Nemours & Co. v. Claiborne-Reno Co., 
C.C.A .Iowa, 64 F.2d 224. 
An undertaking, however expressed, either that some
thing shall happen, or that something shall not happen, 
PROMISE 
in the future. Plumbing Shop, Inc. v. Pitts, 67 Wash.2d 
514, 408 P.2d 382, 384. 
A promise is a manifestation of intention to act or 
refrain from acting in a specified way, so made as to 
justify a promisee in understanding that a commitment 
has been made. A promise may be stated in words 
either oral or written, or may be inferred wholly or 
partly from conduct. Restatement, Second, Contracts 
§§ 2, 4. 
While a "promise" is sometimes loosely defined as a 
declaration by any person of his intention to do or 
forbear from anything at the request or for the use of 
another, it is to be distinguished, on the one hand, from 
a mere declaration of intention involving no engage
ment or assurance as to the future, and, on the other, 
from "agreement," which is an obligation arising upon 
reciprocal promises, or upon a promise founded on a 
consideration. 
See also Aleatory promise; Breach of promise; Collat
eral promise; Conditional promise; Gratuitous promise; 
Ill usory promise; Implied promise; Offer; Raising a prom
ise. 
Commercial law. An undertaking to pay and it must be 
more than an acknowledgment of an obligation. U.C.C. 
§ 3-102(1)(c). 
Fictitious promise. Sometimes called "implied prom
ises," or "promises implied in law," occur in the case of 
those contracts which were invented to enable persons 
in certain cases to take advantage of the old rules of 
pleading peculiar to contracts, and which are not now of 
practical importance. 
Illusory promise. A promise in which the promisor does 
not bind himself to do anything and hence it furnishes 
no basis for a contract because of the lack of considera
tion; e.g. a promise to buy whatever goods the promisor 
chooses to buy. 
Mutual promises. Promises simultaneously made by 
and between two parties; each promise being the consid
eration for the other. 
Naked promise. One given without any consideration, 
equivalent, or reciprocal obligation, and for that reason 
not enforceable at law. 
New promise. An undertaking or promise, based upon 
and having relation to a former promise which, for some 
reason, can no longer be enforced, whereby the promisor 
recognizes and revives such former promise and engages 
to fulfill it. 
Parol promise. A simple contract; a verbal promise. 
Promise implied in fact. Promise implied in fact is 
merely tacit promise, one which is inferred in whole or 
in part from expressions other than words by promisor. 
Cooke v. Adams, Miss., 183 So.2d 925, 927. 
Promise implied in law. Promise implied in law is one 
in which neither words nor conduct of party involved 
are promissory in form or justify inference of promise 
and term is used to indicate that party is under legally 
enforceable duty as he would have been, if he had in fact

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PROMISE 
made promise. Cooke v. Adams, Miss., 183 So.2d 925, 
927. 
Promise of marriage. A contract mutually entered into 
by a man and a woman that they will marry each other. 
Promise to pay the debt of another. Within the statute 
of frauds, a promise to pay the debt of another is an 
undertaking by a person not before liable, for the pur
pose of securing or performing the same duty for which 
the party for whom the undertaking is made, continues 
liable. 
Promisee. One to whom a promise has been made. 
Promisor. One who makes a promise. 
Promissor /pr:lmis:lr/. Lat. In the civil law, a promis
er; properly the party who undertook to do a thing in 
answer to the interrogation of the other party, who was 
called the "stipulator." 
Promissory / prom:ls( o)riy / . Containing or consisting of 
a promise; in the nature of a promise; stipulating or 
engaging for a future act or course of conduct. 
As to promissory Oath; Representation; and Warranty, 
see those titles. 
Promissory estoppel. That which arises when there is 
a promise which promisor should reasonably expect to 
induce action or forbearance of a definite and substan
tial character on part of promisee, and which does 
induce such action or forbearance, and such promise is 
binding if injustice can be avoided only by enforcement 
of promise. "Moore" Burger, Inc. v. Phillips Petroleum 
Co., Tex., 492 S.W.2d 934. Elements of a "promissory 
estoppel" are a promise clear and unambiguous in its 
terms, reliance by the party to whom the promise is 
made, with that reliance being both reasonable and 
foreseeable, and injury to the party asserting the estop
pel as a result of his reliance. James King & Son, Inc. 
v. De Santis Const. No. 2 Corp., 97 Misc.2d 1063, 413 
N.Y.S.2d 78, 81. See Restatement, Second, Contracts, 
§ 90. 
Promissory fraud. A promise to perform made at a 
time when the promisor has a present intention not to 
perform. It is a misrepresentation of the promisor's 
frame of mind and is, for that reason a fact which makes 
it the basis of an action for deceit. It is sometimes 
called common law fraud. 
Promissory note. A promise or engagement, in writing, 
to pay a specified sum at a time therein stated, or on 
demand, or at sight, to a person therein named, or to his 
order, or bearer. An unconditional written promise, 
signed by the maker, to pay absolutely and at all events 
a sum certain in money, either to the bearer or to a 
person therein designated or his order, at a time speci
fied therein, or at a time which must certainly arrive. 
A signed paper promising to pay another a certain 
sum of money. An unconditional written promise to 
pay a specified sum of money on demand or at a speci
fied date. Such a note . is negotiable if signed by the 
maker and containing an unconditional promise to pay a 
1214 
sum certain in money either on demand or at a definite 
time and payable to order or bearer. U.C.C. § 3-104. 
Promissory warranty. In insurance law, a promissory 
warranty is an absolute undertaking by insured, con
tained in a policy or in an instrument properly incorpo
rated by reference, that certain facts or conditions per
taining to the risk insured against shall continue, or 
shall be done or omitted. Reid v. Hardware Mut. Ins. 
Co. of Carolinas, 252 S.C. 339, 166 S.E.2d 317, 321. 
Promote. To contribute to growth, enlargement, or 
prosperity of; to forward; to further; to encourage; to 
advance. 
Promoter. One who promotes, urges on, encourages, 
incites, advances, etc. One promoting a plan by which it 
is hoped to insure the success of a business, entertain
ment, etc. venture. 
The persons who, for themselves or others, take the 
preliminary steps to the founding or organization of a 
corporation or other venture. Those persons who first 
associate themselves together for the purpose of organiz
ing the company, issuing its prospectus, procuring sub
scriptions to the stock, securing a charter, etc. Incorpo
rators. Dickerman v. Northern Trust Co., 176 U.S. 181, 
20 S.Ct. 311, 44 L.Ed. 423. 
Prompt. To act immediately, responding on the instant. 
Prompt delivery. Delivery as promptly as possible, all 
things considered. 
Promptly. Adverbial form of the word "prompt," which 
means ready and quick to act as occasion demands. The 
meaning of the word depends largely on the facts in 
each case, for what is "prompt" in one situation may not 
be considered such under other circumstances or condi
tions. To do something "promptly" is to do it without 
delay and with reasonable speed. Application of Beat
tie, 4 Storey 506, 180 A.2d 741, 744. 
Prompt shipment. Shipment within a reasonable time, 
all things considered. 
Promulgare /pro(w)m:llgeriy/. Lat. In Roman law, to 
make public; to make publicly known; to promulgate. 
To publish or make known a law after its enactment. 
PromUlgate or promulgation. /pro(w)m:llgeyt/pr:lm;}lg
eyt/ . To publish; to announce officially; to make public 
as important or obligatory. The formal act of announc
ing a statute or rule of court. An administrative order 
that is given to cause an agency law or regulation to 
become . known and obligatory. 
Promutuum /pr:lmyuwtyuw:lm/. Lat. In the civil law, 
a quasi contract, by which he who receives a certain 
sum of money, or a certain quantity of fungible things, 
which have been paid to him through mistake, contracts 
towards the payer the obligation of returning him as 
much. 
Pronepos /prownepos /. Lat. In the civil law, a great
grandson. 
Proneptis /prownep t:ls/. Lat. In the civil law, a great
granddaughter; a niece's daughter.

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1215 
Pro non scripto /pr6w non skriptow/. As not written; 
as though it had not been written; as never written. 
Pronotary /prown6wt�riy/. First notary. See Prothono
tary. 
Pronounce. To utter formally, officially, and solemnly; 
to declare or affirm; to declare aloud and in a formal 
manner. In this sense a court is said to "pronounce" 
judgment or a sentence. 
Pronunciation /pr�n�nsiyeysh�n/. L. Fr. A sentence 
or decree. 
Pronurus /pr6wn�r�s/. Lat. In the civil law, the wife 
of a grandson or great-grandson. 
Proof. The effect of evidence; the establishment of a 
fact by evidence. New England Newspaper Pub. Co. v. 
Bonner, C.C.A.Mass., 77 F.2d 915, 916. Any fact or 
circumstance which leads the mind to the affirmative or 
negative of any proposition. The conviction or persua
sion of the mind of a judge or jury, by the exhibition of 
evidence, of the reality of a fact alleged. Ellis v. Wolfe
Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309. 
The establishment by evidence of a requisite degree of 
belief concerning a fact in the mind of the trier of fact or 
the court. Calif. Evidence Code, § 190. 
See also Burden of going forward; Burden of persuasion; 
Burden of producing evidence; Burden of proof; Clear and 
convincing proof; Clear evidence or proof; Degree of 
proof; Evidence; Failure of proof; In ference; Offer of 
proof; Presumption; Reasonable doubt; Testimony. 
Evidence and proof distinguished. Proof is the logically 
sufficient reason for assenting to the truth of a proposi
tion advanced. In its juridical sense it is a term of wide 
import, and comprehends everything that may be ad
duced at a trial, within the legal rules, for the purpose 
of producing conviction in the mind of judge or jury, 
aside from mere argument; that is, everything that has 
a probative force intrinsically, and not merely as a 
deduction from, or combination of, original probative 
facts. But "evidence" is a narrower term, and includes 
only such kinds of proof as may be legally presented at a 
trial, by the act of the parties, and through the aid of 
such concrete facts as witnesses, records, or other doc
uments. Thus, to urge a presumption of law in support 
of one's case is adducing proof, but it is not offering 
evidence. "Belief' is a subjective condition resulting 
from proof. It is a conviction of the truth of a proposi
tion, existing in the mind, and induced by persuasion, 
proof, or argument addressed to the judgment. Proof is 
the result or effect of evidence, while evidence is the 
medium or means by which a fact is proved or dis
proved, but the words "proof' and "evidence" may be 
used interchangeably. Proof is the perfection of evi
dence; for without evidence there is no proof, although 
there may be evidence which does not amount to proof; 
for example, if a man is found murdered at a spot where 
another has been seen walking but a short time before, 
this fact will be evidence to show that the latter was the 
murderer, but, standing alone, will be very far from 
proof of it. 
PROOF 
Affirmative proof. Evidence establishing the fact in 
dispute by a preponderance of the evidence. See also 
Preponderance of evidence. 
Burden of proof. See that title. 
Degree of proof. Refers to effect of evidence rather than 
medium by which truth is established, and in this sense 
expressions "preponderance of evidence" and "proof be
yond reasonable doubt" are used. See also Degree of 
proof. 
Full proof. See Full. 
Half proof. See Half. 
Negative proof. See Positive proof, below. 
Positive proof. Direct or affirmative proof. That which 
directly establishes the fact in question; as opposed to 
negative proof, which establishes the fact by showing 
that its opposite is not or cannot be true. 
Preliminary proof. See Prelimina ry. 
Proof beyond a reasonable doubt. Such proof as pre
cludes every reasonable hypothesis except that which it 
tends to support and which is wholly consistent with 
defendant's guilt and inconsistent with any other ration
al conclusion. State v. Dubina, 164 Conn. 95, 318 A.2d 
95, 97. Such is the required standard of proof in crimi
nal cases. See also Reasonable doubt. Compare Proba
ble cause. 
Proof evident or presumption great. As used in constitu
tional provisions that accused shall be bailable unless 
for capital offenses when the "proof is evident" or "pre
sumption great," means evidence clear and strong, and 
which leads well guarded, dispassionate judgment to 
conclusion that accused committed offense and will be 
punished capitally. Ex parte Coward, 145 Tex.Cr.R. 
593, 170 S.W.2d 754, 755; Ex parte Goode, 123 Tex.Cr.R. 
492, 59 S.W.2d 84l. 
Proof of claim. Statement under oath filed in a bank
ruptcy proceeding by a creditor in which the creditor 
sets forth the amount owed and sufficient detail to 
identify the basis for the claim. Also used in probate 
proceedings to submit the amount owed by the decedent 
to the creditor and filed with the court for payment by 
the fiduciary. See Bankruptcy Code § 50l. 
Proof of debt. The formal establishment by a creditor of 
his debt or claim, in some prescribed manner (as, by his 
affidavit or otherwise), as a preliminary to its allowance, 
along with others, against an estate or property to be 
divided, such as the estate of a bankrupt or insolvent, a 
deceased person or a firm or company in liquidation. 
See Proof of claim, above. 
Proof of loss. A formal statement made by the policy
owner to the insurer regarding a loss, intended to give 
insurer enough information to enable it to determine 
the extent of its liability under a policy or bond. 
Proof of service. Evidence submitted by a process server 
that he has made service on a defendant in an action. 
It is 'also called a return of service. Fed.R.Civil P. 4.

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PROOF 
Proof of will. A term having the same meaning as 
"probate," (q.v.), and used interchangeably with it. 
Standard of proof. A statement of how convincing the 
evidence must be in order for a party to comply with 
his/her burden of proof. The main standards of proof 
are: proof beyond a reasonable doubt (in criminal cases 
only), proof by clear and convincing evidence, and proof 
by a preponderance of the evidence. 
Pro opere et labore /prow op;)riy at l;)boriy/. For work 
and labor. 
Propagate /prop;)gayt/. To cause to spread. 
Pro partibus liberandis /prow part;)b;)s Hb;)rrend;)s/. 
An ancient writ for partition of lands between co-heirs. 
Propatruus /prowpretruw;)s/. Lat. In the civil law, a 
great-grandfather's brother. 
Propatruus Magnus /prowpretruw;)s mregn ;)s/. In the 
civil law, a ' great-great-uncle. 
Proper. That which is fit, suitable, ' appropriate, adapt
ed, correct. Reasonably sufficient. Peculiar; naturally 
or essentially belonging to a person or thing; not com
mon; appropriate; one's own. See also Reasonable. 
Proper care. That degree of care which a prudent man 
should use under like circumstances. Baskin v. Mont
gomery Ward & Co., C.C.A.N.C., 104 F.2d 531, 533. 
Proper evidence. Such evidence as may be presented 
under the rules established by law and recognized by the 
courts; i.e. admissible evidence; material, relevant evi
dence. See e.g. Fed.R.Evid. 402. 
Proper feuds. In feudal law, the original and genuine 
feuds held by purely military service. 
Proper independent advice. As to donor means that 
he had preliminary benefit of conferring upon subject of 
intended gift with a person who was not only competent 
to inform him correctly of its legal effect, but who was 
so disassociated from interests of donee as to be in 
position to advise with donor impartially and confiden
tially as to consequences to donor of his proposed gift. 
Proper lookout. Duty, as imposed by law on all motor
ists, that requires motorist to use care, prudence, watch
fulness, and attention of an ordinarily prudent person 
under same or similar circumstances. The duty of see
ing that which is clearly visible or which in exercise of 
ordinary care would be visible, including watchfulness of 
movements of one's own vehicle as well as other things 
seen or seeable. Lewis v. Super Valu Stores, Inc., D.C. 
Iowa, 249 F.Supp. 852, 853. Such lookout as person of 
ordinary care and prudence would have kept under 
same or similar conditions. Duncan v. Durham, Tex. 
Civ.App., 356 S.W.2d 377, 380. See also Lookout. 
Properly payable. Description of a check implying that 
the drawee-payor bank can and should pay it, and has a 
right to charge the amount against the drawer's account 
even though an overdraft results. See V.C.C. 
§ 4-104(1)(i). 
Proper party. As distinguished from a necessary party, 
is one who has an interest in the subject-matter of the 
1216 
litigation, which may be conveniently settled therein. 
One without whom a substantial decree may be made, 
but not a decree which shall completely settle all the 
questions which may be involved in the controversy and 
conclude the rights of all the persons who have any 
interest in the subject of the litigation. See Fed.R.Civil 
P. 19. 
A proper party is one who may be joined in action but 
whose nonjoinder will not result in dismissal. Jones 
Knitting Corp. v. A. M. Pullen & Co., D.C.N.Y., 50 F.R.D. 
311, 314. Those without whom cause might proceed but 
whose presence will allow judgment more clearly to 
settle controversy among all parties. Cities Service Oil 
Co. v. Kronewitter, 199 Kan. 228, 428 P.2d 804, 807. See 
also Parties. 
Property. That which is peculiar or proper to any , 
person; that which belongs exclusively to one. In the 
strict legal sense, an aggregate of rights which are 
guaranteed and protected by the government. Fulton 
Light, Heat & Power Co. v. State, 65 Misc.Rep. 263, 121 
N.Y.S. 536. The term is said to extend to every species 
of valuable right and interest. More specifically, owner
ship; the unrestricted and exclusive right to a thing; 
the right to dispose of a thing in every legal way, to 
possess it, to use it, and to exclude every one else from 
interfering with it. That dominion or indefinite right of 
use or disposition which one may lawfully exercise over 
particular things or sub jects. The exclusive right of 
possessing, enjoying, and disposing of a thing. The 
highest right a man can have to anything; being used to 
refer to that right which one has to lands or tenements, 
goods or chattels, which no way depends on another 
man's courtesy. 
The word is also commonly used to denote everything 
which is the subject of ownership, corporeal or incorpo
real, tangible or intangible, visible or invisible, real or 
personal; everything that has an exchangeable value or 
which goes to make up wealth or estate. It extends to 
every species of valuable right and interest, and includes 
real and personal property, easements, franchises, and 
incorporeal hereditaments, and includes every invasion 
of one's property rights by actionable wrong. Labberton 
v. General Cas. Co. of America, 53 Wash.2d 180, 332 
P .2d 250, 252, 254. 
Property embraces everything which is or may be the 
subject of ownership, whether a legal ownership, or 
whether beneficial, or a private ownership. Davis v. 
Davis, Tex.Civ.App., 495 S.W.2d 607, 611. Term in
cludes not only ownership and possession but also the 
right of use and enjoyment for lawful purposes. Hof f
mann v. Kinealy, Mo., 389 S.W.2d 745, 752. 
Property, within constitutional protection, denotes 
group of rights inhering in citizen's relation to physical 
thing, as right to possess, use and dispose of it. Cereghi
no v. State By and Through State Highway Commission, 
230 Or. 439, 370 P.2d 694, 697. 
Goodwill is property, Howell v. Bowden, Tex.Civ.App., 
368 S.W.2d 842, 848; as is an insurance policy and 
rights incident thereto, including a right to the proceeds, 
l:Iarris v. Harris, 83 N.M. 441, 493 P.2d 407, 408.

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1217 
Criminal law. "Property" means anything of value, 
including real estate, tangible and intangible personal 
property, contract rights, choses-in-action and other in
terests in or claims to wealth, admission or transporta
tion tickets, captured or domestic animals, food and 
drink, electric or other power. Model Penal Code, 
§ 223.0. See also Property of another, below. 
See also Chattel; Commun ity property; Incorporeal prop
erty; Intangible property; Interest; Land; Literary property; 
Lost property; Marital property. 
Classification 
Property is either: real or immovable; or, personal or 
movable. Calif. Civil Code, § 657. 
Absolute property. In respect to chattels, personal prop
erty is said to be "absolute" where a man has, solely and 
exclusively, the right and also the possession of movable 
chattels. In the law of wills, a bequest or devise "to be 
the absolute property" of the beneficiary may pass a 
title in fee simple. Or it may mean that the property is 
to be held free from any limitation or condition or free 
from any control or disposition on the part of others. 
See Fee simple. 
Common property. A term sometimes applied to lands 
owned by a local government and held in trust for the 
common use of the inhabitants. Property owned by 
tenants in common. Also property owned jointly by 
husband and wife under the community property sys
tem. See Commun ity property, also Public property, be
low. 
Community property. See that title. 
Ganancial property. See that title. 
General property. The right and property in a thing 
enjoyed by the general owner. See Owner. 
Intangible property. Property which cannot be touched 
because it has no physical existence such as claims, 
interests, and rights. See also Intangible asset. 
Literary property. See Literary. 
Mislaid property. Property which the owner has volun
tarily parted with, with the intention of retrieving it 
later, but which cannot now be found. Does not include 
intentionally hidden property, and is distinguished from 
"lost" property which the owner has parted with casual
ly and involuntarily. Rofrano v. Duffy, C.A.N.Y., 291 
F.2d 848, 850. 
Mixed property. Property which is personal in its essen
tial nature, but is invested by the law with certain of the 
characteristics and features of real property. Heir
looms, fixtures, and title-deeds to an estate are of this 
nature. 
Movable property. Property the location of which can be 
changed, including things growing on, affixed to, or 
found in land, and documents although the rights repre
sented thereby have no physical location. "Immovable 
property" is all other property. Model Penal Code, 
§ 223.0. 
PROPERTY 
Personal property. In broad and general sense, every
thing that is the subject of ownership, not coming under 
denomination of real estate. A right or interest in 
things personal, or right or interest less than a freehold 
in realty, or any right or interest which one has in 
things movable. 
Generally, all property other than real estate; as 
goods, chattels, money, notes, bonds, stocks and choses 
in action generally, including intangible property. Bis
marck Tribune Co. v. Omdahl, N.D., 147 N.W.2d 903, 
906. It is sometimes designated as personalty when real 
estate is termed realty. Personal property also can 
refer to property which is not used in a taxpa yer's trade 
or business or held for the production or collection of 
income. When used in this sense, personal property 
could include both realty (e.g., a personal residence) and 
personalty (e.g., personal effects such as clothing and 
furniture). 
Personal property includes money, goods, chattels, 
things in action, and evidences of debt. Calif.Evid.Code. 
Personal property is divisible into (1) corporeal person
al property, which includes movable and tangible things, 
such as animals, furniture, merchandise, etc.; and (2) 
incorporeal personal property, which consists of such 
rights as personal annuities, stocks, shares, patents, and 
copyrights. 
Private property. As protected from being taken for 
public uses, is such property as belongs absolutely to an 
individual, and of which he has the exclusive right of 
disposition. Property of a specific, fixed and tangible 
nature, capable of being in possession and transmitted 
to another, such as houses, lands, and chattels. Scran
ton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126. 
Property of another. Includes property in which any 
person other than the actor has an interest which the 
actor is not privileged to infringe, regardless of the fact 
that the actor also has an interest in the property and 
regardless of the fact that the other person might be 
precluded from civil recovery because the property was 
used in an unlawful transaction or was subject 1;0 forfei
ture as contraband. Property in possession of the actor 
shall not be deemed property of another who has only a 
security interest therein, even if legal title is in the 
creditor pursuant to a conditional sales contract or other 
security agreement. Model Penal Code, § 223.0. 
Property tax. See that title. 
Public property. This term is commonly used as a 
designation of those things which are publici juris (q.v.), 
and therefore considered as being owned by "the pub
lic," the entire state or community, and not restricted to 
the dominion of a private person. It may also apply to 
any subject of property owned by a state, nation, or 
municipal corporation as such. See also State property, 
below. 
Qualified property. Property in chattels which is not in 
its nature permanent, but may at some times subsist 
and not at other times; such for example, as the proper
ty a man may have in wild animals which he has caught 
and keeps, and which are his only so long as he retains

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PROPERTY 
possession of them. Any ownership not absolute. See 
also Special property, below. 
Real property. Land, and generally whatever is erected 
or growing upon or affixed to land. Also rights issuing 
out of, annexed to, and exercisable within or about land. 
A general term for lands, tenements, and heredit
aments; property which, on the death of the owner 
intestate, passes to his heir. 
Real or immovable property consists of: Land; that 
which is affixed to land; that which is incidental or 
appurtenant to land; that which is immovable by law; 
except that for the purposes of sale, emblements, indus
trial growing crops and things attached to or forming 
part of the land, which are agreed to be severed before 
sale or under the contract of sale, shall · be treated as 
goods and be governed by the regulating the sales of 
goods. Calif. Civil Code, § 658. 
Separate property. See that title. 
Special property. Property of a qualified, temporary, or 
limited nature; as distinguished from absolute, general, 
or unconditional property. Such is the property of a 
bailee in the article bailed, of a sheriff in goods tempo
rarily in his hands under a levy, of the finder of lost 
goods while looking for the owner, of a person in wild 
animals which he has caught. See also Qualified proper
ty, above. 
State property. The State is the owner of all land below 
tide water, and below ordinary high-water mark, border
ing upon tide water within the State; of all land below 
the water of a navigable lake or stream; of all property 
lawfully appropriated by it to its own use; of all proper
ty dedicated to the State; and of all property of which 
there is no other owner. Calif. Civil Code, § 670. 
Tangible property. All property which is touchable and 
has real existence (physical) whether it is real or person
al. 
Unclaimed property. The majority of states · have 
adopted the Uniform Disposition of Unclaimed Property 
Act. 
Property of the debtor. As used in Bankruptcy Code, 
"property of the debtor" includes property of which 
debtor has possession, either actual or constructive, and 
it is not limited to property title to which is in the 
debtor. In re Kassuba, D.C.Ill., 396 F.Supp. 324, 326. 
Property right. A generic term which refers to any 
type of right to specific property whether it is personal 
or real property, tangible or intangibl e; e.g. professional 
baseball player has valuable property right in his name, 
photograph and image, and such right may be saleable 
by him. Cepeda v. Swift & Co., C.A.Mo., 415 F.2d 1205, 
1206. 
Property settlement. Term as used in divorce parlance 
is used interchangeably in describing two different bases 
for division of marital property: (1) based upon agree
ment of the parties and approval by the court, and (2) 
based upon an award by the court after trial on the 
merits. Marshall v. Marshall, 135 Mich.App. 702, 355 
1218 
N.W.2d 661, 665. Agreement made between spouses as 
an incident of a divorce proceeding. Such agreement 
may contain provisions for division of property owned or 
acquired by the spouses during the marriage, periodic 
payments by one of the spouses or a lump sum payment 
or one time conveyance of property. See Equitable distri
bution; Marital property; Separate property; Separation 
agreement. Compare Post-nuptial agreement; Pre-nuptial 
agreement. 
Property tax. An ad valorem tax, usually levied by a 
city or county government, on the value of real or 
personal property that the taxpayer owns on a specified 
date. The tax is generally expressed as a uniform rate 
per thousand of valuation. See Ad valorem. 
Property torts. Such involve injury or damage to prop
erty, real or personal, in contrast to "personal torts" 
which involve injuries to person, i.e., the body, reputa
tion, or feelings. Travelers Indem. Co. v. Chumbley, 
Mo.App., 394 S.W.2d 418, 422. 
Propinqui et consanguinei /pr;}pil)kway et 
konsrel)gwiniyay / . Lat. The nearest of kin to a de
ceased person. 
Propiedad /prowpdyeyoaO/. In Spanish law, property. 
Propinquior excludit propinquum; propinquus re
motum; et remotus remotiorem /pr;}pil)kwiy;}r 
;}kskl(y)uwd;}t pr;}pil)kw;}m, pr;}pil)kw;}s r;}mowt;}m, et 
r;}mowt;}s r;}movVshiyor;}m (. He who is nearer excludes 
him who is near; he who is near, him who is remote; he 
who is remote, him who is remoter. 
Propinquity /pr;}pil)kw;}diy /. 
nearness; proximity. 
Kindred; parentage; 
Propior sobrino, propior sobrina /prowpiy;}r s;}bray
now/"s;}brayn;}/. Lat. In the civil law, the son or 
daughter of a great-uncle or great-aunt, paternal or 
maternal. 
Propios, proprios /prowp(r)iyows/. In Spanish law, cer
tain portions of ground laid off and reserved when a 
town was founded in Spanish America as the unaliena
ble property of the town, for the purpose of erecting 
public buildings, markets, etc., or to be used in any other 
way, under the direction of the municipality, for the 
advancement of the revenues or the prosperity of the 
place. 
Propone /pr;}pown/. In ecclesiastical and probate law, 
to bring forward for adjudication; to exhibit as basis of a 
claim; to proffer for judicial action. 
Proponent /pr;}pown;}nt/. The propounder of a thing. 
Thus, the proponent of a will is the party who offers it 
for probate (q.v.). 
Proportional representation. A method of election 
which gives representation to minority interests. In 
connection with elections for political office, the Su
preme Court has held that the Constitution does not 
require proportional representation. Davis v. Bandem
er, 478 U.S. 109, 129, 106 S.Ct. 2797, 2809, 92 L.Ed.2d 85.

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1219 
Proportionate /prC)pOrsh.mC)t/. Adjusted to something 
else according to certain rate of comparative relation. 
See Pro rata. 
Proposal. An offer; something proffered. An offer, by 
one person to another, of terms and conditions with 
reference to some work or undertaking, or for the trans
fer of property, the acceptance whereof will make a 
contract between them. Signification by one person to 
another of his willingness to enter into a contract with 
him on the terms specified in the offer. 
The initial overture or preliminary statement for con
sideration by the other party to a proposed agreement. 
As so used, it is not an offer but it contemplates an offer 
and hence, its acceptance does not ripen into a contract. 
See also Offer. 
Propositio indefinita requipollet universali 
/propC)zish(iy)ow inder�nliyt� ekw�pol�t yuwn�v�rsey
lay /. An indefinite proposition is equivalent to a gener
al one. 
Proposition. An offer to do a thing. See Offer; Propos
al. 
Propositus /pr�poz�t�s/. Lat. The person proposed; 
the person from whom a descent is traced. 
Pro possessione prresumitur de jure /prow p�zeshiyow
niy pr�z(y)um�t�r diy juriy/. From possession arises a 
presumption of law. 
Pro possessore /prow powz�soriy /. As a possessor; by 
title of a possessor. 
Pro possessore habetur qui dolo injuriave desiit pos
sidere /prow powz�soriy h�biyt�r kway dowlow �njur
iyeyviy desiy�t pos�diriy / . He is esteemed a possessor 
whose possession has been disturbed by fraud or injury. 
Pro posse suo /prow posiy s(y)uwow/. To the extent of 
his power or ability. 
Propound. To offer; to propose. An executor or other 
person is said to propound a will when he takes proceed
ings for obtaining probate solemn form. 
Prop.Reg. An abbreviation for Proposed Regulation (e.g. 
Proposed Treasury Regulation). A Regulation may first 
be issued in proposed form to give interested parties the 
opportunity for comment. When and if a Proposed 
Regulation is finalized, it is designated as a Regulation 
(abbreviated Reg.). 
Propria persona /prowpriy� p�rsown�/. See In propria 
persona. 
Proprietary, n. /pr�pray�t(eh)riy/. A proprietor or own
er; one who has the exclusive title to a thing; one who 
possesses or holds the title to a thing in his own right; 
one who possesses the dominion or ownership of a thing 
in his own right. The grantees of Pennsylvania and 
Maryland and their heirs were called the proprietaries 
of those provinces. 
Proprietary, adj. /pr�pray�t(eh)riy/. Belonging to own
ership; owned by a particular person; belonging or 
pertaining to a proprietor; relating to a certain owner 
or proprietor. 
PROPRIETAS 
Proprietary articles. Goods manufactured under some 
exclusive individual right to make and sell them. The 
term is so used in the internal revenue laws of the 
United States. Ferguson v. Arthur, 117 U.S. 482, 6 S.Ct. 
861, 29 L.Ed. 979. 
Proprietary capacity. Used to describe functions of a 
city or town when it engages in a business-like venture 
as contrasted with a governmental function. See Pro
prietary functions, below. 
Proprietary capital. In accounting, that account in a 
sole proprietorship which represents the original invest
ment in addition to accumulated profits. 
Proprietary duties. Those duties of a municipality 
which are not strictly governmental duties. See also 
Governmental duties. 
Proprietary functions. Functions which city or town, in 
its discretion, may perform when considered to be for 
best interests of its citizens. Sarmiento v. City of Cor
pus Christi, Tex.Civ.App., 465 S.W.2d 813, 816, 819. 
"Governmental function" has to do with administration 
of some phase of government, that is to say, dispensing 
or exercising some element of sovereignty, while "pro
prietary function" is one designed to promote comfort, 
convenience, safety and happiness of citizens. McPhee 
v. Dade County, Fla.App., 362 So.2d 74, 79. See also 
Governmental duties; Governmental functions. 
Proprietary governments. This expression is used by 
Blackstone to denote governments granted out by the 
crown to individuals, in the nature of feudatory princi
palities, with inferior regalities and subordinate powers 
of legislation such as formerly belonged to the owners of 
counties palatine. 1 Bl.Comm. 108. 
Proprietary information. In trade secret law, informa
tion in which the owner has a protectable interest. 
Proprietary interest. The interest of an owner of proper
ty together with all rights appurtenant thereto such as 
the right to vote shares of stock and right to participate 
in managing if the person has a proprietary interest in 
the shares. Stroh v. Blackhawk Holding Corp., 48 Il1.2d 
471, 272 N.E.2d 1. 
Proprietary lease. Type of lease in cooperative apart
ment between owner-cooperative and tenant-stockhold
er. 
Proprietary rights. Those rights which an owner of 
property has by virtue of his ownership. Douglas v. 
Taylor, Tex.Civ.App., 497 S.W.2d 308, 310. A right 
customarily associated with ownership, title, and posses
sion and is an interest or right of one who exercises 
dominion over a thing or property, of one who manages 
and controls. Green v. Lewis, 221 Va. 547, 272 S.E.2d 
181, 185. See also Proprietary interest, above. 
Proprietas /pr�pray�tres/. Lat. In the civil and old 
English law, property; that which is one's own; owner
ship. 
Proprietas nuda, naked or mere property of owner
ship; the mere title, separate from the usufruct.

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PROPRIETAS 
Proprietas plena, full property, including not only the 
title, but the usufruct, or exclusive right to the use. 
Proprietas totius navis carinre causam sequitur 
/pr::lpraY::ltres towshiY::ls neYV::ls k::lrayniy koz::Im 
sekw::lt::lr/. The property of the whole ship follows the 
condition of the keel. If a man builds a vessel from the 
very keel with the materials of another, the vessel 
belongs to the owner of the materials. 
Proprietas verborum est salus proprietatum 
/pr::lpraY::ltres v::lrb6r::lm est srel::ls pr::lpraY::lteyt::lm/. Pro
priety of words is the salvation of property. 
Proprietate probanda, de / diy pr::lpraY::lteybm 
prowbrend::l/. A writ addressed to a sheriff to try by an 
inquest in whom certain property, previous to distress, 
subsisted. 
Proprietates verborum servandre sunt /pr::lpraY::ltey
tiyz v::lrbor::lm s::lrvrendiy s�nt/. The proprieties of words 
[proper meanings of words] are to be preserved or ad
hered to. 
Propriete /prowpriyeytey/. The French law term corre
sponding to our "property," or the right of enjoying and 
of disposing of things in the most absolute manner, 
subject only to the laws. 
Proprietor /pr::lpraY::lt::lr/. Owner of proprietorship. 
One who has the legal right or exclusive title to proper
ty, business, etc. In many instances it is synonymous 
with owner. 
Proprietorship. A business which is owned by a person 
who has either the legal right and exclusive title, or 
dominion, or the ownership of that business. Shermco 
Industries, Inc. v. Secretary of U.S. Air Force, D.C.Tex., 
452 F.Supp. 306, 314. A business, usually unincorporat
ed, owned and controlled exclusively by one person. 
Such a business is commonly designated a "sole proprie
torship" (q.v.). 
Propriety. As used in Massachusetts colonial ordinance 
of 1741 term is nearly, if not precisely, equivalent to 
property. 
In old English law, property; propriety in action; 
propriety in possession; mixed propriety. 
Proprios /prowpriyows/. In Spanish and Mexican law, 
productive lands, the usufruct of which had been set 
apart to the several municipalities for the purpose of 
defraying the charges of their respective governments. 
Proprio vigore /prowpriyow v::lgoriy /. Lat. By its own 
force; by its intrinsic meaning. 
Propter /propt::lr/. For; on account of. The initial word 
of several Latin phrases. 
Propter affectum /propt::lr ::Ifekt::lm/. For or on account 
of some affection or prejudice. The name of a species of 
challenge (q. v.). 
Disqualifications of jurors on account of some bias or 
partiality toward one side or other of litigation, and 
objections of this class may be made even after jury has 
returned its verdict. Partin v. Henderson, Tenn.App., 
686 S.W.2d 587, 589. 
1220 
Propter defectum /propt::lr d::lfekt::lm/. On account of or 
for some defect. The name of a species of challenge 
(q.v.). 
Propter defectum sanguinis /propt::lr d::lfekt::lm srelJgw::l
n::ls/. On account of failure of blood. 
Propter delictum /propt::lr d::llikt::lm/. For or on ac
count of crime. The name of a species of challenge (q.v.). 
Propter honoris respectum /propt::lr (h)::Inor::ls r::lspek
t::lm/ . On account of respect of honor or rank. See 
Challenge. 
Propter impotentiam /propt::lr imp::ltensh(iY)::Im/. On 
account of helplessness. The term describes one of the 
grounds of a qualified property in wild animals, consist
ing in the fact of their inability to escape; as is the case 
with the young of such animals before they can fly or 
run. 2 Bl.Comm. 394. 
Propter privilegium /propt::lr priv::lliyj(iY)::Im/. On ac
count of privilege. The term describes one of the 
grounds of a qualified property in wild animals, consist
ing in the special privilege of hunting, taking and killing 
them, in a given park or preserve, to the exclusion of 
other persons. 2 Bl.Comm. 394. 
Pro querente /prow kW::lrentiy/. For the plain tiff; 
usually abbreviated pro quer. 
Pro rata /prow reyt::l/. Proportionately; according to a 
certain rate, percentage, or proportion. According to 
measure, interest, or liability. According to a certain 
rule or proportion. For example, if a corporation has 
ten shareholders each of whom owns 10% of the stock, a 
pro-rata dividend distribution of $1,000 would mean that 
each shareholder would receive $100. See also Per cap
ita; Pro rate. 
Pro rata clause. Such clause commonly used as other 
insurance provision in automobile liability policy pro
vides that when an insured has other insurance avail
able, company will be liable only for proportion of loss 
represented by ratio between its policy limit and total 
limits of all available insurance. Putnam v. New Am
sterdam Cas. Co., 48 Ill.2d 71, 269 N.E.2d 97, 99. Provi
sion in insurance policy to the effect that the insurer 
will not be liable for a greater proportion of any loss 
than the amount of the policy bears to the total amount 
of insurance on the property. 
Pro-rata distribution clause. In fire insurance, provi
sion in the policy that the amount of insurance written 
shall apply to each parcel of property in the proportion 
which the value of each parcel bears to the total value of 
all the property insured under the policy. 
Pro rate. To divide, share, or distribute proportionally; 
to assess or apportion pro-rata. 
The act of adjusting, dividing or prorating property 
taxes, interest, insurance premiums, rental income, etc., 
between buyer and seller proportionately to time of use, 
or the date of closing. See also Pro rata. 
Pro re nata /prow riy neyt::l/. For the affair immediate
ly in hand; for the occasion as it may arise; adapted to 
meet the particular occasion. Thus, a course of judicial

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1221 
action adopted under pressure of the exigencies of the 
affair in hand, rather than in conformity to established 
precedents, is said to be taken pro re nata. 
Prorogation I prowr;)geysh:m I . Prolonging or putting 
off to another day. The discontinuation or termination 
of a session of the legislature, parliament, or the like. 
In English law, a prorogation is the continuance of the 
parliament from one session to another, as an ad journ
ment is a continuation of the session from day to day. 
In the civil law, the giving time to do a thing beyond 
the term previously fixed. 
Prorogue. To direct suspension of proceedings of par
liament; to terminate a legislative session. 
Pro salute animre Iprow s;)l(y)uwtiy ren;)miy/. For the 
good of his soul. All prosecutions in the ecclesiastical 
courts are pro salute animre; hence it will not be a 
temporal damage founding an action for slander that 
the words spoken put any one in danger of such a suit. 
Proscribed Ipr;)skraybd/. In the civil law, among the 
Romans, a man was said to be "proscribed" when a 
reward was offered for his head; but the term was more 
usually applied to those who were sentenced to some 
punishment which carried with it the consequences of 
civil death. 
Pro se Iprow siy/. For one's own behalf; in person. 
Appearing for oneself, as in the case of one who does not 
retain a lawyer and appears for himself in court. 
Prosecute. To follow up; to carryon an action or other 
judicial proceeding; to proceed against a person crimi
nally. To "prosecute" an action is not merely to com
mence it, but includes following it to an ultimate conclu
sion. See also Prosecution. 
Prosecuting attorney. The name of the public officer 
who is appointed or elected in each judicial district, 
circuit, or county, to conduct criminal prosecutions on 
behalf of the State or people. Federal prosecutors (U.S. 
Attorneys) represent the United States in prosecuting 
federal crimes. 
A locally elected officer who represents the State in 
securing indictments and informations and in prosecut
ing criminal cases. Also called district or county attor
ney or State's attorney. 
See also Prosecutor; States Attorney; United States 
Attorney. 
Prosecuting witness. The private person upon whose 
complaint or information a criminal accusation is found
ed and whose testimony is mainly relied on to secure a 
conviction at the trial. In a more particular sense, the 
person who was chiefly injured, in person or property, 
by the act constituting the alleged crime (as in case of 
robbery, assault, criminal negligence, bastardy, and the 
like), and who instigates the prosecution and gives evi
dence. 
Prosecutio legis est gravis vexatio, executio legis 
coronat opus Ipros;)kyuwsh(iy)ow liyj;)s est grrev;)s 
vekseysh(iy)ow, eks;)kyuwsh(iy)ow liyj;)s k;)rown;)t 
PROSECUTOR 
owp;)s/. Litigation is vexatious, but an execution 
crowns the work. 
Prosecution. A criminal action; a proceeding instituted 
and carried on by due course of law, before a competent 
tribunal, for the purpose of determining the guilt or 
innocence of a person charged with crime. U. S. v. 
Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480. The 
continuous following up, through instrumentalities cre
ated by law, of a person accused of a public offense with 
a steady and fixed purpose of reaching a judicial deter
mination of the guilt or innocence of the accused. 
By an extension of its meaning, "prosecution" is also 
used to designate the government (state or federal) . as 
the party proceeding in a criminal action, or the prose
cutor, or counsel; as when we speak of "the evidence 
adduced by the prosecution." 
The term is also used respecting civil litigation, and 
includes every step in action, from its commencement to 
its final determination. The Brazil, C.C.A.Ill., 134 F.2d 
929, 930. 
The Fifth Amendment, U.S.C onst., requires that all 
prosecutions for infamous federal crimes (i.e. federal 
offenses carrying a term of imprisonment in excess of 
one year) be commenced by grand jury indictment. This 
requirement, however, does not apply to state prosecu
tions for such crimes, which may be prosecuted on the 
basis of an inf ormation. Hurtado v. California, 110 U.S. 
516, 4 S.Ct. 111, 28 L.Ed.2d 232. 
Malicious prosecution. See that title. 
Prosecution history estoppel. An equitable tool for 
determining the permissible scope of patent claims. 
Builders Concrete Inc. v. Bremerton Concrete Products 
Co., 757 F.2d 255, 258. It limits the scope of patent 
claims based on arguments and claim amendments 
made during prosecution to obtain allowance of the 
patent. Advance Transformer Co. v. Levinson, 837 F.2d 
1081, 1083. This doctrine applies both to claim amend
ments to overcome rejections based on prior art, and to 
arguments submitted to obtain the patent. Hughes 
Aircraft Co. v. United States, 717 F.2d 1351, 1362. See 
also File wrapper estoppel. 
Prosecutor. One who prosecutes another for a crime in 
the name of the government. One who instigates the 
prosecution upon which an accused is arrested or who 
prefers an accusation against the party whom he sus
pects to be guilty, as does a district, county, or state's 
attorney on behalf of the state, or a United States 
Attorney for a federal district on behalf of the U.S. 
government. People v. Pohl, 47 Ill.App.2d 232, 197 
N.E.2d 759, 764. A District Attorney or any other 
public servant who represents the people in a criminal 
action. New York Penal Code, § 1.20(31). See also 
Prosecuting attorney. 
Private prosecutor. One who sets in motion the machin
ery of criminal justice against a person whom he sus
pects or believes to be guilty of a crime, by laying an 
accusation before the proper authorities, and who is not 
himself an officer of the government. Compare Public 
prosecutor, below.

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PROSECUTOR 
Prosecutor of the pleas. This name was given in New 
Jersey to the county officer who was charged with the 
prosecution of criminal actions, corresponding to the 
"district attorney" or "county attorney" in other states. 
Public prosecutor. An officer of government (such as a 
state's attorney or district attorney) whose function is 
the prosecution of criminal actions, or suits partaking of 
the nature of criminal actions. See also Prosecuting 
attorney. 
Prosecutrix Ipros:)kyu.wtr:)ks/. A female prosecutor. 
Prosequi Ipros:)kway/. Lat. To follow up or pursue; to 
sue or prosecute. See Nolle prosequi. 
Prosequitur Ipr:)sekw:)t:)r/. Lat. He follows up or pur
sues; he prosecutes. See Non pros. 
Prosocer Iprows:)s:)r/. Lat. In the civil law, a father-in
law's father; a grandfather of wife. 
Prosocerus Ipr:)sos:)r:)s/. Lat. In the civil law, a wife's 
grandmother. 
Pro socio Iprow sowsh(iy)ow/. For a partner; the name 
of an action in behalf of a partner. A title of the civil 
law. 
Pro solido Iprow sol:)dow/. For the whole; as one; 
jointly; without division. 
Prospective Ipr:)spekt:)v/. In the future; looking for
ward; contemplating the future. 
Prospective damages Ipr:)spekt:)v drem:)j:)zl. See Dam
ages. 
Prospective law /pr:)spekt:)v 10/. One applicable only 
to cases which shall arise after its enactment. 
Prospectus. A document published by a corporation, or 
by persons acting as its agents or assignees, setting forth 
the nature and objects of an issue of shares, debentures, 
or other securities created by the company or corpora
tion, the investment or risk characteristics of the securi
ty and inviting the public to subscribe to the issue. The 
principal document of a registration statement required 
by law to be furnished an investor prior to any pur
chase. It is the document which is to contain all materi
al facts concerning a company and its operations so that 
a prospective investor may make an informed decision 
as to the merit of an investment. 
Federal securities laws (15 U.S.C.A. § 77a) require 
that corporations making public stock offerings file a 
copy of the prospectus with the SEC and also provide a 
copy to all prospective purchasers. The content of the 
prospectus is governed by federal securities laws and 
regulations. 
The term "prospectus" means any prospectus, notice, 
circular, advertisement, letter, or communication, writ
ten or by radio or television, which offers any security 
for sale or confirms the sale of any security. Securities 
Act of 1933, § 1; 15 U.S.C.A. § 77b(1O). 
See also Offering circular; Red herring. 
Prostitute. One who permits common indiscriminate 
sexual activity for hire, in distinction from sexual activi-
1222 
ty confined exclusively to one person. Com. v. King, 374 
Mass. 5, 372 N.E.2d 196, 202. A person who engages or 
agrees or offers to engage in sexual conduct with anoth
er person in return for a fee. N.Y. Penal Law § 230.00. 
See also Pander. 
The word in its most general sense means the act of 
setting one's self to sale, or of devoting to infamous 
purposes what is in one's power: as, the prostitution of 
talents or abilities; the prostitution of the press, etc. 
Prostitution. Act of performing, or offering or agreeing 
to perform a sexual act for hire. Engaging in or agree
ing or offering to engage in sexual conduct with another 
person under a fee arrangement with that person or any 
other person. Ariz. Crim. Code § 13-3211(5). Includes 
any lewd act between persons for money or other consid
eration. Cal. Penal Law § 647(b). Within meaning of 
statute proscribing prostitution, comprises conduct of all 
male and female persons who engage in sexual activity 
as a business. Com. v. King, 374 Mass. 5, 372 N.E.2d 
196, 203. 
A person is guilty of prostitution, a petty misdemean
or, if he or she: (a) is an inmate of a house of prostitu
tion or otherwise engages in sexual activity as a busi
ness; or (b) loiters in or within view of any public place 
for the purpose of being hired to engage in sexual 
activity. Model Penal Code, § 251.2. 
See also Mann Act; Pander. 
Pro tanto Iprow trentow/. For so much; for as much as 
may be; as far as it -goes. Partial payment made on a 
claim. Commonly used in eminent domain cases to 
describe a partial payment made for the taking by the 
government without prejudice to the right of the peti
tioner to bring action for the full amount that he claims 
is due. 
Protected class. Under Title VII of the Civil Rights Act 
of 1964, one of the groups the law sought to protect, 
including groups based on race, sex, national origin, and 
religion. 
Protection. In old English law, a writ by which the king 
might, by a special prerogative, privilege a defendant 
from all personal and many real suits for one year at a 
time, and no longer, in respect of his being engaged in 
his service out of the realm. In former times the name 
"protection" was also given to a certificate given to a 
sailor to show that he was exempt from impressment 
into the royal navy. 
In mercantile law, the name of a document generally 
given by notaries public to sailors and other persons 
going abroad, in which it is certified that the bearer 
therein named is a citizen of the United States. 
In public commercial law, a system by which a govern
ment imposes customs duties upon commodities of for
eign origin or manufacture when imported into the 
country, for the purpose of stimulating and developing 
the home production of the same or equivalent articles, 
by discouraging the importation of foreign goods, or by 
raising the price of foreign commodities to a point at 
which the home producers can successfully compete 
with them. See Protective tariff.

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1223 
Protection order. Order issued by court in domestic 
violence or abuse cases to, for example, protect spouse 
from physical harm by other spouse or child from abuse 
by parent(s). Such order may be granted immediately 
by court in cases where immediate and present danger 
of violence or abuse is shown. Such emergency orders 
are granted in ex parte type proceeding and are tempo
rary in duration pending full hearing by court with all 
involved parties present. See e.g. Minn.St. § 518B.0l. 
Protectio trahit subjectionem, et subjectio protec
tionem /prajeksh(iy)ow trey(h)at sabjekshiy6wnam, et 
sabjeksh(iy)ow pratekshiy6wnam /. Protection draws 
with it subjection, and subjection protection. The pro
tection of an individual by government is on condition of 
his submission to the laws, and such submission on the 
other hand entitles the individual to the protection of 
the government. 
Protective committee. A group of security holders or 
preferred stockholders appointed to protect the interest 
of their group at a time of liquidation or reorganization 
of corporation. 
Protective custody. The condition of one who is held 
under authority of law for his own protection as in the 
case of a material witness whose safety is in jeopardy, or 
one who is drunk in public though public drunkenness 
may not be a criminal offense, or of a person who 
because of mental illness or drug addiction may harm 
himself or others. 
Protective order. Any order or decree of a court whose 
purpose is to protect a person from further harassment 
or abusive service of process or discovery; see e.g. Fed.R. 
Civil P. 26(c); Fed.R.Crim.P. 16(d)(1). See also Gag or
der; Protection order. 
Protective tariff. A law imposing duties on imports, 
with the purpose and the effect of discouraging the 
importation of competitive products of foreign origin, 
and consequently of stimulating and protecting the 
home production of the same or equivalent articles. 
Protective trust. A species of spendthrift trust (q.v.) 
containing a provision for forfeiture to protect against 
creditors and voluntary alienation. 
Pro tem /prow tem/. Abbreviation for "pro tempore" 
which means, literally, for the time being. Hence, one 
who acts as a substitute on a temporary basis is said to 
serve pro tem. 
Pro tempore /prow tempari y/. For the time being; 
temporarily; provisionally. 
Protest. A formal declaration made by a person inter
ested or concerned in some act about to be done, or 
already performed, whereby he expresses his dissent or 
disapproval, or affirms the act against his will. The 
object of such a declaration is generally to save some 
right which would be lost to him if his implied assent 
could be made out, or to exonerate himself from some 
responsibility which would attach to him unless he 
expressly negatived his assent. 
PROTEST 
A notarial act, being a formal statement in writing 
made by a notary under his seal of office, at the request 
of the holder of a bill or note, in which it is declared that 
the bill or note described was on a certain day presented 
for payment (or acceptance), and that such payment or 
acceptance was refused, and stating the reasons, if any, 
given for such refusal, whereupon the notary protests 
against all parties to such instrument, and declares that 
they will be held responsible for all loss or damage 
arising from its dishonor. It denotes also all the steps or 
acts accompanying dishonor necessary to charge an in
dorser. 
A protest is a certificate of dishonor made under the 
hand and seal of a United States consul or a notary 
public or other person authorized to certify dishonor by 
the law of the place where dishonor occurs. It may be 
made upon information satisfactory to such person. 
U.C.C. § 3-509. See also Dishonor. 
Protest is a condition on the liability of a drawer or 
indorser of any draft that on its face appears to be 
drawn or payable outside of the United States. U.C.C. 
§ 3-501(3). 
A formal declaration made by a minority (or by cer
tain individuals) in a legislative body that they dissent 
from some act or resolution of the body, usually adding 
the grounds of their dissent. The term, in this sense, 
refers to such a proceeding in the English House of 
Lords. 
The formal statement, usually in writing, made by a 
person who is called upon by public authority to pay a 
sum of money, in which he declares that he does not 
concede the legality or justice of the claim or his duty to 
pay it, or that he disputes the amount demanded; the 
object being to save his right to recover or reclaim the 
amount, which right would be lost by his acquiescence. 
Thus, taxes may be paid under "protest." 
The name of a paper served on a collector of customs 
by an importer of merchandise, stating that he believes 
the sum charged as duty to be excessive, and that, 
although he pays such sum for the purpose of getting his 
goods out of the custom-house, he reserves the right to 
bring an action against the collector to recover the 
excess. 
In maritime law, a written statement by the master of 
a vessel, attested by a proper judicial officer or a notary, 
to the effect that damage suffered by the ship on her 
voyage was caused by storms or other perils of the sea, 
without any negligence or misconduct on his own part. 
Notice of protest. A notice given by the holder of a bill 
or note to the drawer or indorser that the bill has been 
protested for refusal of payment or acceptance. U.C.C. 
§ 3-509. 
Waiver of protest. As applied to a note or bill, a waiver 
of protest implies not only dispensing with the formal 
act known as "protest," but also with that which ordi
narily must precede it, viz., demand and notice of non
payment.

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PROTESTANDO 
Protestando Ipr o(w)t;}strendow/. L. Lat. Protesting. 
The emphatic word formerly used in pleading by way of 
protestation. See Protestation. 
Protestants. Those who adhered to the doctrine of Lu
ther; so called because, in 1529, they protested against a 
decree of the emperor Charles V and of the diet of 
Spires, and declared that they appealed to a general 
council. The name is now applied indiscriminately to 
all the sects, of whatever denomination, who have seced
ed from the Church of Rome. 
Protestation. In old pleading, the indirect affirmation 
or denial of the truth of some matter which cannot with 
propriety or safety be positively affirmed, denied, or 
entirely passed over. The exclusion of a conclusion. 
Protest fee. Fee charged by banks or other financial 
agencies when items (such as checks) presented for col
lection cannot be collected. 
Prothonotary Iprowt;}nowd;}riy/prowO;}o I. The title giv
en (in e.g. Pennsylvania) to an officer who officiates as 
principal clerk of some courts. 
Protocol I prowt;}kol/ . A brief summary of the text of a 
document. Also, the minutes of a meeting which are 
generally initialed by the parties present to reflect their 
assent to the accuracy of the minutes. 
A section of the Department of State charged with the 
preparation of agreements and treatises. Commonly, 
term refers to the etiquette of diplomacy and the rank
ing of officials. 
Protutor Iprowt(y)uwt;}r/. Lat. In the civil law, he 
who, not being the tutor of a minor, has administered 
his property or affairs as if he had been, whether he 
thought himself legally invested with the authority of a 
tutor or not. He who marries a woman who is tutrix 
becomes, by the marriage, a protutor. The protutor is 
equally responsible with the tutor. 
Prout patet per recordum Iprow�t peyt;}t p�r 
r;}kord;}m /. . As appears by the record. In the Latin 
phraseology of pleading, this was the proper formula for 
making reference to a record. 
Provable. Susceptible of being proved. 
Prove. To establish or make certain; to establish a fact 
or hypothesis as true by satisfactory and sufficient evi
dence. Lawson v. Superior Court In and For Los Ange
les County, 155 Cal.App.2d 755, 318 P.2d 812, 814. As 
used in legal matters and proceedings means to estab
lish, to render or make certain. Texas & N. O. R. Co. v. 
Flowers, Tex.Civ.App., 336 S.W.2d 907, 914. See also 
Proof. 
Prover. In old English law, a person who, on being 
indicted of treason or felony, and arraigned for the 
same, confessed the fact before plea pleaded, and appeal
ed or accused others, his accomplices, in the same crime, 
in order to obtain his pardon. 
Provide. To make, procure, or furnish for future use, 
prepare. To supply; to afford; to contribute. 
1224 
Provided. The word used in introducing a proviso (q.v.). 
Ordinarily it signifies or expresses a condition; but this 
is not invariable, for, according to the context, it may 
import a covenant, or a limitation or qualification, or a 
restraint, modification, or exception to something which 
precedes. 
Provided by law. This phrase when used in a constitu
tion or statute generally means prescribed or provided 
by some statute. 
Province. The district into which a country has been 
divided; as, the province of Quebec in Canada. More 
loosely, a sphere of activity or a profession such as 
medicine or law. 
Provincialis Ipr;}vinshiyeyl;}s/. Lat. In the civil law, 
one who has his domicile in a province. 
Provision. Foresight of the chance of an event happen
ing, sufficient to indicate that any present undertaking 
upon which its assumed realization might exert a natu
ral and proper influence was entered upon in full con
templation of it as a future possibility. 
In commercial law, funds remitted by the drawer of a 
bill of exchange to the drawee in order to meet the bill, 
or property remaining in the drawee's hands or due 
from him to the drawer, and appropriated to that pur
pose. 
Provisional. Temporary; preliminary; tentative; taken 
or done by way of precaution or ad interim. 
A term of the check collection process describing pay
ment, credit or other settlement for a check or other 
item when the person giving the settlement reserves a 
right, by law or agreement, to recover the payment or 
credit if the item is not finally paid. 
Provisional committee. A committee appointed for a 
temporary occasion. 
Provisional court. A federal court with jurisdiction 
and powers governed by the order from which it derives 
its authority. A provisional court established in con
quered or occupied territory by military authorities, or 
the provisional government, is a federal court deriving 
its existence and all its powers from the federal govern
ment. 
Provisional government. One temporarily established 
in anticipation of and to exist and continue until anoth
er (more regular or more permanent) shall be organized 
and instituted in its stead. 
Provisional injunction. Term sometimes used for in
terlocutory or temporary injunction. 
Provisional remedy. A remedy provided for present 
need or for the immediate occasion; one adapted to meet 
a particular exigency. Particularly, a temporary pro
cess available to a plaintiff in a civ�l action, which 
secures him against loss, irreparable injury, dissipation 
of the property, etc., while the action is pending. Such 
include the remedies of injunction, appointment of a 
receiver, attachment, or arrest.

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1225 
Provisional seizure. A remedy known under the law of 
Louisiana, and substantially the same in general nature 
as attachment of property in other states. 
Proviso /pr-;:,vayzow/. A condition, stipulation, limita
tion, or provision which is inserted in a deed, lease, 
mortgage, or contract, and on the performance or non
performance of which the validity of the instrument 
frequently depends; it usually begins with the word 
"provided. " 
A limitation or exception to a grant made or authority 
conferred, the effect of which is to declare that the one 
shall not operate, or the other be exercised, unless in the 
case provided. 
A clause or part of a clause in a statute, the office of 
which is either to except something from the enacting 
clause, or to qualify or restrain its generality, or to 
exclude some possible ground of misinterpretation of its 
extent. 
A "proviso" is used to limit, modify or explain the 
main part of section of statute to which it is appended. 
Saginaw County Tp. Officers Ass'n v. City of Saginaw, 
373 Mich. 477, 130 N.W.2d 30, 32. The office of a 
"proviso" in a statute is to restrict or make clear that 
which has gone before. Allen v. Burkhart, Okl., 377 
P.2d 821, 827. A clause engrafted on a preceding enact
ment for the purpose of restraining or modifying the 
enacting clause or of excepting something from its oper
ation which would otherwise have been within it. Stol
ler v. State, 171 Neb. 93, 105 N.W.2d 852, 856. A 
proviso is sometimes misused to introduce independent 
pieces of legislation. Cox v. Hart, 260 U.S. 427, 43 S.Ct. 
154, 157, 67 L.Ed. 332. Its proper use, however, is to 
qualify what is affirmed in the body of the act, section, 
or paragraph preceding it, or to except something from 
the act, but not to enlarge the enacting clause. And it 
cannot be held to enlarge the scope of the statute. 
Exception and proviso distinguished. See Exception. 
Proviso est providere prresentia et futura, non 
prreterita /pravayzow est prov-;:,diriy pr-;:,zEmsh(iy)a et 
f(y)-;:,tyUr-;:" non pr-;:,tehr-;:,t-;:,/. A proviso is to provide for 
the present or future, not the past. 
Provisor /pr-;:,vayz-;:,r/. In old English law, a provider, or 
purveyor. Also a person nominated to be the next 
incumbent of a benefice (not yet vacant) by the pope. 
He that hath the care of providing things necessary; but 
more especially one who sued to the court of Rome for a 
provision. 
Proviso, trial by. In old English practice, a trial 
brought on by the defendant, in cases where the plain
tiff, after issue joined, neglects to proceed to trial; so 
called from a clause in the writ to the sheriff, which 
directs him, in case two writs come to his hands, to 
execute but one of them. The defendant may take out a 
venire facias to the sheriff, which hath in it these words, 
Proviso quod, etc., provided that if the plaintiff shall 
take out any writ to that purpose, the sheriff shall 
summon but one jury on them both. 
PROXIMATE CAUSE 
Provocation. The act of inciting another to do a partic
ular deed. That which arouses, moves, calls forth, 
causes, or occasions. Such conduct or actions on the 
part of one person towards another as tend to arouse 
rage, resentment, or fury in the latter against the for
mer, and thereby cause him to do some illegal act 
against or in relation to the person offering the provoca
tion. See also Procurer. 
Provocation which will reduce killing to manslaughter 
must be of such character as will, in mind of average 
reasonable man, stir resentment likely to cause violence, 
obscure the reason, and lead to action from passion 
rather than judgment. There must be a state of passion 
without time to cool placing defendant beyond control of 
his reason. Provocation carries with it the idea of some 
physical aggression or some assault which suddenly 
arouses heat and passion in the person assaulted. 
Provoke. To excite; to stimulate; to arouse. To irritate, 
or enrage. 
Provost-Marshal. In military law, the officer acting as 
the head of the military police of any post, camp, city or 
other place in military occupation, or district under the 
reign of martial law. He or his assistants may, at any 
time; arrest and detain for trial, persons subject to 
military law committing offenses, and may carry into 
execution any punishments to be inflicted in pursuance 
of a court martial. 
Proxeneta /proks-;:,niyt-;:,/. Lat. In the civil law, a bro
ker; one who negotiated or arranged the terms of a 
contract between two parties, as between buyer and 
seller; one who negotiated a marriage; a match-maker. 
Proximate. Immediate; nearest; direct, next in order. 
In its legal sense, closest in causal connection. Armijo 
v. World Ins. Co., 78 N.M. 204, 429 P.2d 904, 905. Next 
in relation to cause and effect. 
Proximate cause. That which, in a natural and contin
uous sequence, unbroken by any efficient intervening 
cause, produces injury, and without which the result 
would not have occurred. Wisniewski v. Great Atlantic 
& Pac. Tea Co., 226 Pa.Super. 574, 323 A.2d 744, 748. 
That which is nearest in the order of responsible causa
tion. That which stands next in causation to the effect, 
not necessarily in time or space but in causal relation. 
The proximate cause of an injury is the primary or 
moving cause, or that which, in a natural and continu
ous sequence, unbroken by any efficient intervening 
cause, produces the injury and without which the acci
dent could not have happened, if the injury be one 
which might be reasonably anticipated or foreseen as a 
natural consequence of the wrongful act. An injury or 
damage is proximately caused by an act, or a failure to 
act, whenever it appears from the evidence in the case, 
that the act or omission played a substantial part in 
bringing about or actually causing the injury or damage; 
and that the injury or damage was either a direct result 
or a reasonably probable consequence of the act or 
omission. 
The last negligent act contributory to an injury, with
out which such injury would not have resulted. The

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PROXIMATE CAUSE 
dominant, moving or producing cause. The efficient 
cause; the one that necessarily sets the other causes in 
operation. The causes that are merely incidental or 
instruments of a superior or controlling agency are not 
the proximate causes and the responsible ones, though 
they may be nearer in time to the result. It is only 
when the causes are independent of each other that the 
nearest is, of course, to be charged with the disaster. 
Act or omission immediately causing or failing to pre
vent injury; act or omission occurring or concurring 
with another, which, had it not happened, injury would 
not have been inflicted. Herron v. Smith Bros., 116 
Cal.App. 518, 2 P.2d 1012, 1013. 
See also Concurrent causes; Efficient cause; Im mediate 
cause; Legal cause. 
Proximate consequence or result. One which succeeds 
naturally in the ordinary course of things. A conse
quence which, in addition to being in the train of physi
cal causation, is not entirely outside the range of expec
tation or probability, as viewed by ordinary men. The 
Mars, D.C.N.Y., 9 F.2d 183, 184. One ordinarily follow
ing from the negligence complained of, unbroken by any 
independent cause, which might have been reasonably 
foreseen. One which a prudent and experienced man, 
fully acquainted with all the circumstances which in 
fact existed, would, at time of the negligent act, have 
thought reasonably possible to follow, if it had occurred 
to his mind. Coast S. S. Co. v. Brady, C.C.A.Ala., 8 F.2d 
16, 19. A mere possibility of the injury is not sufficient, 
where a reasonable man would not consider injury like
ly to result from the act as one of its ordinary and 
probable results. 
Proximate damages. See Damages. 
Proximately. Directly or immediately. Pertaining to 
that which in an ordinary natural sequence produces a 
specific result, no independent disturbing agency inter
vening. Weaver v. Landis, 66 Cal.App.2d 34, 151 P.2d 
884, 886. See Proximate; Proximate cause. 
Proximity. Kindred between two persons. Quality or 
state of being next in time, place, causation, influence, 
etc.; immediate nearness. 
Proximus est cui nemo antecedit, supremus est quem 
nemo sequitur Ipr6ks;}m;}s est k(yuw)ay niymow 
rent;}siyd;}t, s;}priym;}s est kwem niymow sekw;}t;}r/. He 
is next whom no one precedes; he is last whom no one 
follows. 
Proxy. (Contracted from procuracy.) A person who is 
substituted or deputed by another to represent him and 
act for him, particularly in some meeting or public body. 
An agent representing and acting for principal. Also 
the instrument containing the appointment of such per
son. Cliffs Corporation v. United States, C.C.A.O hio, 
103 F.2d 77, 80. 
Written authorization given by one person to another 
so that the second person can act for the first, such as 
that given by a shareholder to someone else to represent 
him and vote his shares at a shareholders' meeting. 
Depending on the context, proxy may also refer to the 
1226 
grant of authority itself (the appointment), or the doc
ument granting the authority (the appointment form). 
See also Power of attorney; Proxy statement; Voting trust. 
Proxy marriage. A marriage contracted or celebrated 
through agents acting on behalf of one or both parties. 
A proxy marriage differs from the more conventional 
ceremony only in that one or both of the contracting 
parties are represented by an agent; all the other re
quirements having been met. State v. Anderson, 239 
Or. 200, 396 P.2d 558, 561. 
Proxy statement. Information required by SEC to be 
given stockholders as a prerequisite to solicitation of 
proxies for a security subject to the requirements of 
Securities Exchange Act. The purpose of the proxy 
statement is to provide shareholders with the appropri
ate information to permit an intelligent decision on 
whether to permit their shares to be voted as solicited 
for particular matter at forthcoming stockholders meet
ing. See also Buried facts doctrine. 
Prudence. Carefulness, precaution, attentiveness, and 
good judgment, as applied to action or conduct. That 
degree of care required by the exigencies or circumstanc
es under which it is to be exercised. This term, in the 
language of the law, is commonly associated with Care 
and Diligence and contrasted with Negligence. See 
those titles. 
Prudent. Sagacious in adapting means to end; circum
spect in action, or in determining any line of conduct. 
Practically wise, judicious, careful, discreet, circumspect, 
sensible. Tureen v. Peoples Motorbus Co. of St. Louis, 
Mo.App., 97 S.W.2d 847, 848. In defining negligence, 
practically synonymous with cautious. 
Prudenter agit qui prrecepto legis obtemperat Ipruw
dent;}r eyj;}t kway pr;}septow liyj;}s obtemp;}r ;}t/. 
He acts prudently who obeys the command of the law. 
Prudent Man Rule. An investment standard. In some 
states, the law requires that a fiduciary, such as a 
trustee for pension funds, may invest the trust's or 
fund's money only in a list of securities designated by 
the state-the so-called legal list. In other states, the 
trustee may invest in a security if it is one which a 
prudent man of discretion and intelligence, who is seek
ing a reasonable income and preservation of capital, 
would buy. For example, New York's "prudent man 
rule," trustee is bound to employ such diligence and 
such prudence in care and management of fund as, in 
general, prudent men of discretion and intelligence in 
such matters employ in their own like affairs. Withers 
v. Teachers' Retirement System of City of New York, 
D.C.N.Y., 447 F.Supp. 1248, 1254. A federal "prudent 
man rule" which governs investment of pension funds is 
found in ERISA § 404(a)(1); 29 U.S.C.A. § 1104(a)(1). 
Prurient interest. A shameful or morbid interest in 
nudity, sex, or excretion. Brockett v. Spokane Arcades, 
Inc., 472 U.S. 491, 498, 105 S.Ct. 2794, 2799, 86 L.Ed.2d 
394. Model Penal Code § 251.4(1). An obsessive inter
est in immoral and lascivious matters. An excessive or 
unnatural interest in sex. One of the criteria of obsceni-

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1227 
ty enunciated in Miller v. California, 413 U.S. 15, 93 
S.Ct. 2607, 37 L.Ed.2d 419, is whether the material 
appeals to the "prurient interest" in sex. See also 
Obscene; Obscenity. 
P.S. An abbreviation for "Public Statutes ;" also for 
"postscript." 
Pseudo /s(y)uwdow/. False, counterfeit, pretended, spu
rious. 
Pseudograph /s(y)uwd�gr(H/. False writing. 
P.S.I.A. An abbreviation for "pounds per square inch 
absolute." 
Psychoneurosis /saykown(y)�r6ws�s/. See Ins anity. 
Psychosis / sayk6ws�s/ . A severe mental disorder in 
which the patient departs from the normal pattern of 
thinking, feeling, and acting. There is generally a loss 
of contact with reality. Progressive deterioration may 
occur. See also Ins anity. 
Psychotherapy / saykow(Jehr�piy /. A method or system 
of alleviating or curing certain forms of disease, particu
larly diseases of the nervous system or such as are 
traceable to nervous disorders, by suggestion, persua
sion, encouragement, the inspiration of hope or confi
dence, the discouragement of morbid memories, associa
tions, or beliefs, and other similar means addressed to 
the mental state of the patient, without (or sometimes in 
conjunction with) the administration of drugs or other 
physical remedies. 
PTI. See Previously taxed income; Pre-trial intervention. 
Puberty. The earliest age at which persons are capable 
of begetting or bearing children. In the civil and com
mon law, the age at which one became capable of 
contracting marriage. It was in boys fourteen, and in 
girls twelve years. 
Public, n. The whole body politic, or the aggregate of 
the citizens of a state, nation, or municipality. The 
inhabitants of a state, county, or community. In one 
sense, everybody, and accordingly the body of the people 
at large; the community at large, without reference to 
the geographical limits of any corporation like a city, 
town, or county; the people. In another sense the word 
does not mean all the people, nor most of the people, nor 
very many of the people of a place, but so many of them 
as contradistinguishes them from a few. Accordingly, it 
has been defined or employed as meaning the inhab
itants of a particular place; all the inhabitants of a 
particular place; the people of the neighborhood. Also, 
a part of the inhabitants of a community. 
Public, adj. Pertaining to a state, nation, or whole 
community; proceeding from, relating to, or affecting 
the whole body of people or an entire community. Open 
to all; notorious. Common to all or many; general; 
open to common use. Belonging to the people at large; 
relating to or affecting the whole people of a state, 
nation, or community; not limited or restricted to any 
particular class of the community. Peacock v. Retail 
Credit Co., D.C.Ga., 302 F.Supp. 418, 423. 
PUBLICATION 
As to public Accounts; Acknowledgment; Act; Adjust
er; Adminis trator; Agent; Attorney; Auction; Breach; 
Blockade; Bounda ry; Business; Capacity; Carrier; Chap
el; Charge; Charity; Company; Corporation; Debt; Doc
ument; Domain, Easement; Enemy; Ferry; Fund; Good; 
Grant; Health; Hig hway; Holiday; Hospital; House; Inde
cent; Ins titution; Market; Mi nister; Money; Necessity; 
Notice; Nuisance; Office; Officer; Peace; Policy; Pond; 
Property; Prosecutor; Record; Revenue; River; Road; 
Sale; School; Seal; Square; Stock; Store; Tax; Things; 
Thoroughfare; Trial; Trust; Trustee; Verdict; Vessel; 
War; Works; Worship, and Wrong, see those titles. 
Public accommodation. Within the meaning of the 
Civil Rights Act of 1964, which prohibits racial discrimi
nation in such places, it is generally a business estab
lishment, affecting interstate commerce or supported in 
its activities by State action, which provides lodging, 
food, entertainment or other services and is open to the 
public. 42 U.S.C.A. § 2000a(b). 
Public advocate. One who may or may not be an 
attorney who purports to represent the public at large in 
matters of public concern such as utility rates, environ
mental quality, and other consumer matters. See also 
Ombudsman. 
Public agency. A department or agency of government 
which has official or quasi official status. An adminis
trative body. 
Publican /p;)bl�k�n/. In the civil law, a farmer of the 
public revenue; one who held a lease of some property 
from the public treasury; a collector of taxes and tolls. 
In English law, a person authorized by license to keep 
a public house, and retail therein, for consumption on or 
off the premises where sold, all intoxicating liquors; also 
termed "licensed victualler." A victualer; one who 
serves food or drink prepared for consumption on the 
premises. 
Publicanus /p�bbkeyn�s/. Lat. In Roman law, a farm
er of the customs; a publican. 
Public appointments. Public offices or positions which 
are to be filled by the appointment of individuals, under 
authority of law, instead of by election. 
Publication. To make public; to make known to people 
in general; to bring before public; to exhibit, display, 
disclose or reveal. Tiffany Productions v. Dewing, D.C. 
Md., 50 F.2d 911, 914. The act of publishing anything; 
offering it to public notice, or rendering it accessible to 
public scrutiny. An advising of the public; a making 
known of something to them for a purpose. It implies 
the means of conveying knowledge or notice. See also 
Notice; Proclamation; Publish. 
Term "publication" is both a business term meaning 
printing and distribution of written materials and a 
legal term meaning communication of libelous matter to 
a third person. Applewhite v. Memphis State Universi
ty, Tenn., 495 S.W.2d 190, 192. See also Law of libel, 
below; and Libel; Utter. 
As descriptive of the publishing of laws and ordi
nances, it means printing or otherwise reproducing cop-

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PUBLICATION 
ies of them and distributing them in such a manner as 
to make their contents easily accessible to the public. 
Copyright law. The act of making public a book, writ
ing, chart, map, etc.; that is, offering or communicating 
it to the public by the sale or distribution of copies. 
Publication, as used in connection with common-law 
copyrights, is employed to denote those acts of an author 
or creator which evidence a dedication of his work to 
public and on which depends the loss of his common-law 
copyright. Vic Alexander & Associates v. Cheyenne 
Neon Sign Co., Wyo., 417 P.2d 921, 923. See also Com
mon-law copyright. 
As defined in Copyright Act, "publication" is the 
distribution of copies or phonorecords of a work to the 
public by sale or other transfer of ownership, or by 
rental, lease, or lending. The offering to distribute 
copies or phonorecords to a group of persons for pur
poses of further distribution, public performance, or 
public display, constitutes publication. A public per
formance or display of a work does not of itself consti
tute publication. 17 U.S.C.A. § 101. 
Law of libel. The act of making the defamatory matter 
known publicly, of disseminating it, or communicating it 
to one or more persons (i.e. to third person or persons). 
The reduction of libelous matter to writing and its 
delivery to any one other than the person injuriously 
affected thereby. Great Atlantic & Pac. Tea Co. v. Paul, 
256 Md. 643, 261 A.2d 731, 734, 735. To communicate 
defamatory words orally or in writing or in print to 
some third person capable of understanding their defam
atory import and in such a way that he did so under
stand; publication is an essential element of a libel 
action and, without publication, there is no libel. Hous
ton Belt & Terminal Ry. Co. v. Wherry, Tex.Civ.App., 
548 S.W.2d 743, 751. See also Libel. 
Law of wills. The formal declaration made by a testa
tor at the time of signing his will that it is his last will 
and testament. The act or acts of the testator by which 
he manifests that it is his intention to give effect to the 
paper as his last will and testament; any communica
tion indicating to the witness that the testator intends 
to give effect to the paper as his will, by words, sign, 
motion, or conduct. 
Service of process. Under Rules of Civil Procedure, 
publication of a summons is the process of giving it 
currency as an advertisement in a newspaper, under the 
conditions prescribed by law, as a means of giving notice 
of the suit to a defendant upon whom personal service 
cannot be made. See e.g. New York CPLR § 315. See 
also Service (Service by publication). 
Public authority. An agency established by govern
ment though not a department thereof but subject to 
some governmental control, e.g. Mass. Port Authority. 
Opinion of the Justices, 334 Mass. 721, 136 N.E.2d 223, 
235. 
Public building. One of which the possession and use, 
as well as the property in it, are in the public. Any 
building held, used, or controlled exclusively for public 
purposes by any department or branch of government, 
1228 
state, county, or municipal, without reference to the 
ownership of the building or of the realty upon which it 
is situated. A building belonging to or used by the 
public for the transaction of public or quasi public 
business. 
Public character. An individual who asks for and de
sires public recognition, such as a political figure, states
man, author, artist, or inventor. See also Public figure. 
Public contract. Any contract in which there are pub
lic funds provided though private persons may perform 
the contract and the subject of the contract may ulti
mately benefit private persons. Nat'l Sur. Corp. v. 
Edison, 240 Ark. 641, 401 S.W.2d 754. 
Public controversy. A "public controversy," in which a 
person must have voluntarily involved himself in order 
to qualify as a public figure for purposes of a libel or 
slander action, is not simply a matter of interest to the 
public but must be a real dispute, the outcome of which 
affects the general public or some segment of it in an 
appreciable way. Re v. Gannett Co., Inc., Del.Super., 
480 A.2d 662, 665. 
Public convenience and necessity. The common crite
rion used in public utility matters when a board or 
agency is faced with a petition for action at the request 
of the utility. In a statute requiring the issuance of a 
certificate of public convenience and necessity by the 
Public Utilities Commission for the operation of a public 
transportation line, "convenience" is not used in its 
colloquial sense as synonymous with handy or easy of 
access, but in accord with its regular meaning of suit
able and fitting, and "public convenience" refers to 
something fitting or suited to the public need. See also 
Public utility. 
Public corporations. An artificial person (e.g. munici
pality or a government corporation) created for the 
administration of public affairs. Unlike a private corpo
ration it has no protection against legislative acts alter
ing or even repealing its charter. Instrumentalities 
created by state, formed and owned by it in public 
interest, supported in whole or part by public funds, and 
governed by managers deriving their authority from 
state. Sharon Realty Co. v. Westlake, Ohio Com.Pl., 188 
N.E.2d 318, 323, 25 O.O.2d 322. A public corporation is 
an instrumentality of the state, founded and owned in 
the public interest, supported by public funds and gov
erned by those deriving their authority from the state. 
York County Fair Ass'n v. South Carolina Tax Commis
sion, 249 S.C. 337, 154 S.E.2d 361, 362. 
Term is also commonly used to distinguish a corpora
tion whose stock is owned and traded by the public from 
a corporation with closely held shares (i.e. close or 
private corporation). 
See also Municipal corporation. 
Public defender. An attorney appointed by a court or 
employed by a government agency whose work consists 
primarily in defending indigent defendants in criminal 
cases. Federal Public Defender Organizations and Com
munity Defender Organizations are provided for under

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1229 
18 U.S.C.A. § 3006A. Most states also have public 
defender programs. See also Counsel, right to; Legal aid; 
Legal Services Corporation. 
Public domain. Land and water in possession of and 
owned by the United States and the states individually, 
as distinguished from lands privately owned by individu
als or corporations. See also Public lands. 
Copyright law. Public ownership status of writings, 
documents, or publications that are not protected by 
copyrights. 
Public entity. Public entity includes a nation, state, 
county, city and county, city, district, public authority, 
public agency, or any other political subdivision or pub
lic corporation, whether foreign or domestic. Calif.Evid. 
Code. 
Public exchange offer. See Offe ring. 
Public figure. Term "public figure," for purposes of 
determining standard to be applied in defamation ac
tion, includes artists, athletes, business . people, dilet
tantes, and anyone who is famous or infamous because 
of who he is or what he has done. Rosanova v. Playboy 
Enterprises, Inc., D.C.Ga., 411 F.Supp. 440, 444. Public 
figures, for libel purposes, are those who have assumed 
roles of special prominence in society; commonly, those 
classed as public figures have thrust themselves to fore
front of particular public controversies in order to influ
ence resolution of issues involved. Mills v. Kingsport 
Times-News, D.C.W.Va., 475 F.Supp. 1005, 1009. Per
sons so classified are required to prove actual notice to 
recover in libel actions. Hustler Magazine v. Falwell, 
485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 4l. 
In determining whether plaintiff in libel action is 
"public figure" required to show "actual malice" of 
publisher or broadcaster, it is preferable to look to 
nature and extent of his participation in particular 
controversy giving rise to the defamation, and he should 
not be deemed public personality for all aspects of his 
life in absence of clear evidence of general fame or 
notoriety in community and pervasive involvement in 
affairs of society. Gertz v. Robert Welch, Inc., 418 U.S. 
323, 94 S.Ct. 2997, 41 L.Ed.2d 789. See Libel. 
For right of privacy action purposes, includes anyone 
who has arrived at position where public attention is 
focused upon him as a person. Dietemann v. Time, Inc., 
D.C.Cal., 284 F.Supp. 925, 930. See Invasion of privacy. 
Public funds. Moneys belonging to government, or any 
department of it, in hands of public official. Droste v. 
Kerner, 34 Ill.2d 495, 217 N.E.2d 73, 78. 
Public hearing. Public hearing before any tribunal or 
body means right to appear and give evidence and also 
right to hear and examine witnesses whose testimony is 
presented by opposing parties. North State, Astor, Lake 
Shore Drive Ass'n v. City of Chicago, 131 Ill.App.2d 251, 
266 N.E.2d 742, 746. 
Publici juris /p:}bl�say jur�s/. Lat. Of public right. 
The word "public" in this sense means pertaining to the 
people, or affecting the community at large; that which 
concerns a multitude of people; and the word "right," as 
PUBLIC LANDS 
so used, means a well-founded claim; an interest; con
cern; advantage; benefit. This term, as applied to a 
thing or right, means that it is open to or exercisable by 
all persons. It designates things which are owned by 
"the public;" that is, the entire state or community, and 
not by any private person. When a thing is common 
property, so that any one can make use of it who likes, it 
is said to be publici juris; as in the case of light, air, and 
public water. 
Public interest. Something in which the public, the 
community at large, has some pecuniary interest, or 
some interest by which their legal rights or liabilities 
are affected. It does not mean anything so narrow as 
mere curiosity, or as the interests of the particular 
localities, which may be affected by the ll1atters in 
question. Interest shared by citizens generally in affairs 
of local, state or national government. Russell v. 
Wheeler, 165 Colo. 296, 439 P.2d 43, 46. 
If by public permission one is making use of public 
property and he chances to be the only one with whom 
the public can deal with respect to the use of that 
property, his business is affected with a public interest 
which requires him to deal with the public on reason
able terms. The circumstances which clothe a particu
lar kind of business with a "public interest," as to be 
subject to regUlation, must be such as to create a pecu
liarly close relation between the public and those en
gaged in it and raise implications of an af firmative 
obligation on their part to be reasonable in dealing with 
the public. One does not devote his property or business 
to a public use, or clothe it with a public interest, merely 
because he makes commodities for and sells to the 
public in common callings such as those of the butcher, 
baker, tailor, etc. Chas. Wolff Packing Co. v. Court of 
Industrial Relations of State of Kansas, 262 U.S. 522, 43 
S.Ct. 630, 633, 67 L.Ed. 1103. A business is not affected 
with a public interest merely because it is large, or 
because the public has concern in respect of its mainte
nance, or derives benefit, accommodation, ease, or enjoy
ment from it. Tyson & Bro.-United Theatre Ticket 
Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 
718. 
Public invitee. A public invitee to whom owner of 
property owes duty to exercise ordinary care for his 
safety is person who is invited to enter or remain on 
land as member of public for purpose for which land is 
held open to public. Lemon v. Busey, 204 Kan. 119, 461 
P.2d 145, 149. See also Business (Business invitee); 
Invitee. 
Publicist /p:}bl�s�st/. One versed in, or writing upon, 
public law, the science and principles of government, or 
international law. 
Public lands. The general public domain; unappropri
ated lands; lands belonging to the United States and 
which are subject to sale or other disposal under general 
laws, and not reserved or held back for any special 
governmental or public purpose. Newhall v. Sanger, 92 
U.S. 761, 763, 23 L.Ed. 769.

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PUBLIC LAND SYSTEM 
Public land system. Legal descriptions of land by refer
ence to the public land survey. 
Public law. A general classification of law, consisting 
generally of constitutional, administrative, criminal, and 
international law, concerned with the organization of 
the state, the relations between the state and the people 
who compose it, the responsibilities of public officers to 
the state, to each other, and to private persons, and the 
relations of states to one another. An act which relates 
to the public as a whole. It may be (1) general (applying 
to all persons within the jurisdiction), (2) local (applying 
to a geographical area), or (3) special (relating to an 
organization which is charged with a public interest). 
That portion of law that defines rights and duties with 
either the operation of government, or the relationships 
between the government and individuals, associations, 
and corporations. 
That branch or department of law which is concerned 
with the state in its political or sovereign capacity, 
including constitutional and administrative law, and 
with the definition, regulation, and enforcement of 
rights in cases where the state is regarded as the subject 
of the right or object of the duty,-including criminal 
law and criminal procedure,-and the law of the state, 
considered in its quasi private personality, i.e., as capa
ble of holding or exercising rights, or acquiring and 
dealing with property, in the character of an individual. 
That portion of law which is concerned with political 
conditions; that is to say, with the powers, rights, 
duties, capacities, and incapacities which are peculiar to 
political superiors, supreme and subordinate. In one 
sense, a designation given to international law, as distin
guished from the laws of a particular nation or state. In 
another sense, a law or statute that applies to the people 
generally of the nation or state adopting or enacting it, 
is denominated a public law, as contradistinguished 
from a private law, affecting only an individual or a 
small number of persons. 
See also General law. Compare Private bill; Private law; 
Special law. 
Public liability insurance. Type of insurance coverage 
which protects against claims arising from the conduct, 
property and agents of the insured and which idemnifies 
against loss arising from liability. 
Publicly. Openly. In public, well known, open, notori
ous, common, or general, as opposed to private, secluded, 
or secret. 
Publicly held. Corporation whose stock is held by and 
available to the public. Shares of publicly held corpora
tions are usually traded on a securities exchange or 
over-the-counter. Compare Corporation (Close Corpora
tion). 
Public nuisance. A condition dangerous to health, of
fensive to community moral standards, or unlawfully 
obstructing the public in the free use of public property. 
Any unreasonable interference with rights common to 
all members of community in general and encompasses 
public health, safety, peace, morals or convenience. 
State ex info Ashcroft V. Kansas City Firefighters Local 
1230 
No. 42, Mo.App., 672 S.W.2d 99, 114. It is one affecting 
rights enjoyed by citizens as part of public and must 
affect a considerable number of people or an entire 
community or neighborhood, Spur Industries, Inc. V. Del 
E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700, 
705; although extent of damage may be unequal, Kitsap 
County V. Kev, Inc., 720 P.2d 818, 821. Compare Private 
nuisance. 
Public offense. An act or omission forbidden by law, 
and punishable as by law provided. Term used to de
scribe a crime as distinguished from an infringement of 
private rights. A public offense, the commission of 
which authorizes private person to arrest another, in
cludes misdemeanors. People V. Sjosten, 262 C.A.2d 539, 
68 Cal.Rptr. 832, 835. See Crime. 
Public offering. See Offering. 
Public office. Essential characteristics of "public office" 
are: (1) authority conferred by law, (2) fixed tenure of 
office, and (3) power to exercise some portion of sover
eign functions of government; key element of such test 
is that "officer" is carrying out sovereign function. 
Spring V. Constantino, 168 Conn. 563, 362 A.2d 871, 875. 
Essential elements to establish public position as "public 
office" are: position must be created by constitution, 
legislature, or through authority conferred by legisla
ture, portion of sovereign power of government must be 
delegated to position, duties and powers must be defined, 
directly or impliedly, by legislature or through legisla
tive authority, duties must be performed independently 
without control of superior power other than law, and 
position must have some permanency and continuity. 
State ex reI. Eli Lilly and CO. V. Gaertner, Mo.App., 619 
S.W.2d 761, 764. 
Public official. A person who, upon being issued a 
commission, taking required oath, enters upon, for a 
fixed tenure, a position called an office where he or she 
exercises in his or her own right some of the attributes 
of sovereign he or she serves for benefit of public. Macy 
V. Heverin, 44 Md.App. 358, 408 A.2d 1067, 1069. The 
holder of a public office though not all persons in public 
employment are public officials, because public official's 
position requires the exercise of some portion of the 
sovereign power, whether great or small. Town of Ar
lington V. Bds. of Conciliation and Arbitration, Mass., 
352 N.E.2d 914. 
Public passage. A right, subsisting in the public, to 
pass over a body of water, whether the land under it be 
public or owned by a private person. This term is 
synonymous with public highway, with this difference: 
by the latter is understood a right to pass over the land 
of another; by the former is meant the right of going 
over the water which is on another's land. 
Public place. A place to which the general public has a 
right to resort; not necessarily a place devoted solely to 
the uses of the public, but a place which is in point of 
fact public rather than private, a place visited by many 
persons and usually accessible to the neighboring public 
(e.g. a park or public beach). Also, a place in which the 
public has an interest as affecting the safety, health,

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morals, and welfare of the community. A place exposed 
to the public, and where the public gather together or 
pass to and fro. 
Public policy. Community common sense and common 
conscience, extended and applied throughout the state to 
matters of public morals, health, safety, welfare, and the 
like; it is that general and well-settled public opinion 
relating to man's plain, palpable duty to his fellowmen, 
having due regard to all circumstances of each particu
lar relation and situation. Hammonds v. Aetna Cas. & 
Sur. Co., D.C.O hio, 243 F.Supp. 793, 796. 
Public policy doctrine. Doctrine whereby a court may 
refuse to enforce contracts that violate law or public 
policy. United Paperworkers International Union v. 
Nisco, Inc., 484 U.S. 29, 108 S.Ct. 364, 373, 98 L.Ed.2d 
286. Invoked, for example, to preclude the contractual
ly authorized termination of an employee who refuses to 
participate in a violation of law. Phipps v. Clark Oil & 
Refining Corp., Minn., 408 N.W.2d 569, 571. See Whis
tle-blower Acts. 
Public policy limitation. A concept developed by the 
courts precluding an income tax deduction for certain 
expenses related to activities deemed to be contrary to 
the public welfare. In this connection, Congress has 
incorporated into the Internal Revenue Code specific 
disallowance provisions . covering such items as illegal 
bribes, kickbacks, and fines and penalties. I.R.C. 
§§ 162(c) and (t). 
Public purpose. In the law of taxation, eminent do
main, etc., this is a term of classification to distinguish 
the objects for which, according to settled usage, the 
government is to provide, from those which, by the like 
usage, are left to private interest, inclination, or liberali
ty. The constitutional requirement that the purpose of 
any tax, police regulation, or particular exertion of the 
power of eminent domain shall be the convenience, 
safety, or welfare of the entire community and not the 
welfare of a specific individual or class of persons. 
"Public purpose" that will justify expenditure of public 
money generally means such an activity as will serve as 
benefit to community as a body and which at same time 
is directly related function of government. Pack v. 
Southern Bell Tel. & Tel. Co., 215 Tenn. 503, 387 S.W.2d 
789, 794. 
The term is synonymous with governmental purpose. 
As employed to denote the objects for which taxes may 
be levied, it has no relation to the urgency of the public 
need or to the extent of the public benefit which is to 
follow; the essential requisite being that a public service 
or use shall affect the inhabitants as a community, and 
not merely as individuals. A public purpose or public 
business has for its objective the promotion of the public 
health, safety, morals, general welfare, security, pros
perity, and contentment of all the inhabitants or resi
dents within a given political division, as, for example, a 
state, the sovereign powers of which are exercised to 
promote such public purpose or public business. 
Public record. Public records are those records which a 
governmental unit is required by law to keep or which it 
is necessary to keep in discharge of duties imposed by 
PUBLIC SERVICE CORPORATION 
law; e.g. records of land transactions kept at county 
court house; records of court cases kept by clerk of 
court. Curran v. Board of Park Com'rs, Lake County 
Metropolitan Park Dist., Com.Pl., 22 Ohio Misc. 197, 259 
N.E.2d 757, 759, 51 O.O.2d 321. Elements essential to 
constitute a public record are that it be a written memo
rial, that it be made by a public officer, and that the 
officer be authorized by law to make it. Nero v. Hyland, 
76 N.J. 213, 386 A.2d 846, 851. A record is a "public 
record" within purview of statute providing that books 
and records required by law to be kept by county clerk 
may be received in evidence in any court if it is a record 
which a public officer is required to keep and if it is filed 
in such a manner that it is subject to public inspection. 
In re LaSarge's Estate, Okl., 526 P.2d 930, 933. For 
purposes of right-to-know law, includes decisions which 
establish, alter, or deny rights, privileges, immunities, 
duties, or obligations. Lamolinara v. Barger, 30 Pa. 
Cmwlth. 307, 373 A.2d 788, 790. See also Record. 
Public safety. A state may exercise its police power 
(derivatively, a city or town) by enacting laws for the 
protection of the public from injury and dangers. 
Public sale. Sale at auction of property upon notice to 
public of such. May result from e.g. tax foreclosure. 
See also Sheriff's sale. 
Public service. A term applied to the objects and enter
prises of certain kinds of corporations, which specially 
serve the needs of the general public or conduce to the 
comfort and convenience of an entire community, such 
as railroad, gas, water, and electric light companies; 
and companies furnishing public transportation. A pub
lic service or quasi public corporation is one private in 
its ownership, but which has an appropriate franchise 
from the state to provide for a necessity or convenience 
of the general public, incapable of being furnished by 
private competitive business, and dependent for its exer
cise on eminent domain or governmental agency. It is 
one of a large class of private corporations which on 
account of special fran chises conferred on them owe a 
duty to the public which they may be compelled to 
perform. See also Public corporations. 
Public service commission. A board or commission 
created by the legislature to exercise power of supervi
sion or regulation over public utilities or public service 
corporations. An administrative agency established by 
the State legislature to regulate rates and services of 
electric, gas, telephone, and other public utilities. Such 
a commission is a legal, administrative body, provided 
for the administration of certain matters within the 
police power, with power to make regulations as to 
certain matters when required for the public safety and 
convenience, and to determine facts on which existing 
laws shall operate. 
Public service corporation. A utility company private
ly owned but regulated by the government. It may sell 
gas, water or electricity but its rates are established by 
the state. It may be a broadcasting company. See also 
Public convenience and necessity; Public utilit y.

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PUBLIC TRIAL 
Public trial. Term "public trial" contemplated by Con
stitution (Amend. VI) is a trial which is not secret, one 
that the public is free to attend. To a great extent, it is 
a relative term and its meaning depends largely on 
circumstances of each particular case. Hampton v. Peo
ple, 171 Colo. 153, 465 P.2d 394, 399. Court session 
which is "public" is also "open", and, therefore, under 
normal conditions, a "public trial" is one which is open 
to general public at all times. People v. Valenzuela, 259 
C.A.2d 826, 66 Cal.Rptr. 825, 829. 
Although the right of public access to criminal trials 
is of constitutional stature, it is not absolute. Richmond 
Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18, 
100 S.Ct. 2814, 65 L.Ed.2d 973. However, the circum
stances under which the press and public can be barred 
from a criminal trial are limited. Where the state 
attempts to deny the right of access in order to inhibit 
the disclosure of sensitive information, it must be shown 
that the denial is necessitated by a compelling govern
mental interest and is narrowly tailored to serve that 
interest. Globe Newspaper Co. v. Superior Court for 
Norfolk County, 457 U.S. 596, 606, 607, 102 S.Ct. 2613, 
2620, 73 L.Ed.2d 248. 
Public, true, and notorious. The old form by which 
charges in the allegations in the ecclesiastical courts 
were described at the end of each particular. 
Public trust. See Charitable trust; Trust. 
Public trust doctrine. Provides that submerged and 
submersible lands are preserved for public use in navi
gation, fishing and recreation and state, as trustee for 
the people, bears responsibility of preserving and pro
tecting the right of the public to the use of the waters 
for those purposes. Oregon Shores Conservation Coali
tion v. Oregon Fish and Wildlife Com'n, 62 Or.App. 481, 
662 P.2d 356, 364. 
Public trustee. County official who is appointed to act 
for the public in administering deeds of trust. 
Publicum jus Ip;)bl;}k;}m j;)s/. Lat. In the civil law, 
public law; that law which regards the state of the 
commonwealth. 
Public use. Eminent domain. The constitutional and 
statutory basis for taking property by eminent domain. 
For condemnation purposes, "public use" is one which 
confers some benefit or advantage to the public; it is not 
confined to actual use by public. It is measured in 
terms of right of public to use proposed facilities for 
which condemnation is sought and, as long as public has 
right of use, whether exercised by one or many members 
of public, a "public advantage" or "public benefit" ac
crues sufficient to constitute a public use. Montana 
Power Co. v. Bokma, Mont., 457 P.2d 769, 772, 773. 
Public use, in constitutional provisions restricting the 
exercise of the right to take private property in virtue of 
eminent domain, means a use concerning the whole 
community as distinguished from particular individuals. 
But each and every member of society need not be 
equally interested in such use, or be personally and 
directly affected by it; if the object is to satisfy a great 
1232 
public want or exigency, that is sufficient. Rindge Co. v. 
Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 
L.Ed. 1186. The term may be said to mean public 
usefulness, utility, or advantage, or what is productive of 
general benefit. It may be limited to the inhabitants of 
a small or restricted locality, but must be in common, 
and not for a particular individual. The use must be a 
needful one for the public, which cannot be surrendered 
without obvious general loss and inconvenience. A 
"public use" for which land may be taken defies abso
lute definition for it changes with varying conditions of 
society, new appliances in the sciences, changing concep
tions of scope and functions of government, and other 
differing circumstances brought about by an increase in 
population and new modes of communication and trans
portation. Katz v. Brandon, 156 Conn. 521, 245 A.2d 
579, 586. 
See also Condemnation; Eminent domain. 
Patent law. Within statute providing that patent is 
invalid if invention was in "public use" more than one 
year prior to date of application' for patent is defined as 
any nonsecret use of a completed and operative inven
tion in its natural and intended way. Atlas Chemical 
Industries, Inc. v. Moraine Products, C.A.Mich., 509 F.2d 
1, 4. In patent law, a public use is entirely different 
from a use by the public. If an inventor allows his 
machine to be used by other persons generally, either 
with or without compensation, or if it is, with his con
sent, put on sale for such use, then it will be in "public 
use" and on public sale. 
Public utility. A privately owned and operated business 
whose services are so essential to the general public as 
to justify the grant of special franchises for the use of 
public property or of the right of eminent domain, in 
consideration of which the owners must serve all per
sons who apply, without discrimination. It is always a 
virtual monopoly. 
A business or service which is engaged in regularly 
supplying the public with some commodity or service 
which is of public consequence and need, such as elec
tricity, gas, water, transportation, or telephone or 
telegraph service. Gulf States Utilities Co. v. State, 
Tex.Civ.App., 46 S.W.2d 1018, 1021. Any agency, instru
mentality, business industry or service which is used or 
conducted in such manner as to affect the community at 
large, that is, which is not limited or restricted to any 
particular class of the community. The test for deter
mining if a concern is a public utility is whether it has 
held itself out as ready, able and willing to serve the 
public. The term implies a public use of an article, 
product, or service, carrying with it the duty of the 
producer or manufacturer, or one attempting to furnish 
the service, to serve the public and treat all persons 
alike, without discrimination. It is synonymous with 
"public use," and refers to persons or corporations 
charged with the duty to supply the public with the use 
of property or facilities owned or furnished by them. 
Buder v. First Nat. Bank in St. Louis, C.C.A.Mo., 16 F.2d 
990, 992. To constitute a true "public utility," the 
devotion to public use must be of such character that the

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public generally, or that part of it which has been served 
and which has accepted the service, has the legal right 
to demand that that service shall be conducted, so long 
as it is continued, with reasonable efficiency under rea
sonable charges. The devotion to public use must be of 
such character that the product and service is available 
to the public generally and indiscriminately, or there 
must be the acceptance by the utility of public franchis
es or calling to its aid the police power of the state. 
Public Utility Holding Company Act. Federal statute 
enacted in 1935 to protect public, investors and consum
ers from economic effect of complex, unwieldy and dis
honest organization of public utilities and particularly 
from effect of false, misleading and irresponsible securi
ty advertising. In re Com. & Southern Corp., C.A.Del. 
1951, 186 F.2d 708. 15 U.S.C.A. §§ 79-79Z. 
Public vessel. See Vessel. 
Public Vessels Act. Federal law which provides for 
libel in personam against the United States or a petition 
impleading the United States for damages caused by 
public vessels of the United States. 46 U.S.C.A. 
§ 781-790. 
Public way. See Hig hway (Public highway). 
Public welfar e. The prosperity, well-being, or conve
nience of the public at large, or of a whole community, 
as distinguished from the advantage of an individual or 
limited class. It embraces the primary social interests 
of safety, order, morals, economic interest, and non-ma
terial and political interests. In the development of our 
civic life, the definition of "public welfare" has also 
developed until it has been held to bring within its 
purview regulations for the promotion of economic wel
fare and public convenience. 
Publish. To make public; to circulate; to make known 
to people in general. To issue; to put into circulation. 
To utter; to present (e.g. a forged instrument) for pay
ment. To declare or assert, directly or indirectly, by 
words or actions, that a forged instrument is genuine. 
An advising of the public or making known of something 
to the public for a purpose. Estill County v. Noland, 295 
Ky. 753, 175 S.W.2d 341, 346. See also Publication; 
Utter. 
Publisher. One who by himself or his agent makes a 
thing publicly known. One whose business is the manu
facture and sale of books, pamphlets, magazines, news
papers, or other literary productions. One who pub
lishes, especially one who issues, or causes to be issued, 
from the press, and offers for sale or circulation matter 
printed, engraved, or the like. 
P.U.C. Public Utilities Commission. 
PUD. Planned Unit Developm ent. In zoning, a device 
which has as its goal a self-contained mini-community, 
built within a zoning district, under density and use 
rules controlling the relation of private dwellings to 
open space, of homes to commercial establishments, and 
of high income dwellings to low and moderate income 
housing. See Planned unit development. 
Black's Law Dictionary 6th Ed.-27 
PUFFING 
Pudicity Ipyuwdis�tiy/. Chastity; purity; continence; 
modesty; the abstaining from all unlawful carnal com
merce or connection. 
Pudzeld Iwudgeld/. In old English law, supposed to be a 
corruption of the Saxon "wudgeld" (woodgeld), a free
dom from payment of money for taking wood in any 
forest. 
Pueblo Ip(yu)we(y)blow/. In Spanish law, people; all 
the inhabitants of any country or place, without distinc
tion. A town, township, or municipality. A small set
tlement or gathering of people, a steady community; the 
term applies equally whether the settlement be a small 
collection of Spaniards or Indians. Pueblo of Santa 
Rosa v. Fall, 56 App.D.C. 259, 12 F.2d 332, 335. This 
term "pueblo, " in its original signification, means "peo
ple" or "population," but is used in the sense of the 
English word "town." It has the indefiniteness of that 
term, and, like it, is sometimes applied to a mere collec
tion of individuals residing at a particular place, a 
settlement or village, as well as to a regularly organized 
municipality. Trenouth v. San Francisco, 100 U.S. 251, 
25 L.Ed. 626. 
Community dwelling, constructed of stone or adobe, 
resided in by Indian tribes of the southwestern United 
States. Term may also refer to inhabitants of such 
dwelling or of the entire village. 
Puer Ipyuw�r/. Lat. In the civil law, a child; one of 
the age from seven to fourteen, including, in this sense, 
a girl. But it also meant a "boy," as distinguished from 
a "girl;" or a servant. 
Puerility /p(y)uw�ribtiy/. In the civil law, a condition 
intermediate between infancy and puberty, continuing 
in boys from the seventh to the fourteenth year of their 
age, and in girls from seven to twelve. 
Pueri sunt de sanguine parentum, sed pater et mater 
non sunt de sanguine puerorum / pyuw�ray s�nt diy 
sreIJgw�niy p�rent�m, sed peyt�r et meyt�r non s�nt diy 
sreIJgw�niy pyuw�ror�m/. Children are of the blood of 
their parents, but the father and mother are not of the 
blood of the children. 
Pueritia /p(y)uw�rish(iy)�/. Lat. In the civil law, child
hood; the age from seven to fourteen. The age from 
birth to fourteen years in the male, or twelve in the 
female. 
Puffer. A person employed by the owner of property 
which is sold at auction to attend the sale and run up 
the price by making spurious bids. See also Puffing. 
Puffing. An expression of opinion by seller not made as 
a representation of fact. Gulf Oil Corp. v. Federal Trade 
Commission, C.C.A.5, 150 F.2d 106, 109. Exaggeration 
by a salesperson concerning quality of goods (not con
sidered a legally binding promise); usually concerns 
opinions rather than facts. Advertising which merely 
states in general terms that advertiser's product is supe
rior is only "puffing" and is not actionable in action by 
competitor. Smith-Victo Corp. v. Sylvania Elec. Prod
ucts, Inc., D.C.IlI. 242 F.Supp. 302, 308.

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PUFFING 
Term also describes secret bidding at auction by or on 
behalf of seller. Feaster Trucking Service, Inc. v. Parks
Davis Auctioneers, Inc., 211 Kan. 78, 505 P.2d 612, 617. 
Puis /pwiy/pwis/. Fr. In law. Afterwards; since. 
Puis darrein continuance /pwis drer:m k:mtinyu w:ms/. 
Since the last continuance. In common law pleading, 
the name of a plea which a defendant was allowed to put 
in, after having already pleaded, where some new mat
ter of defense arose after issue joined; such as payment, 
a release by the plaint iff, the discharge of the defendant 
under an insolvent or bankrupt law, and the like. 
Puisne. Junior, inferior, as in "puisne judges of the 
English High Court, meaning those without distinction 
or title." Supreme Court Act, § 4, 1981. 
Pullman abstention. This doctrine allows federal 
courts to stay proceedings before it in order to provide 
state courts opportunity to settle underlying, unsettled 
questions of state law, thus avoiding possibility of feder
al court's unnecessarily deciding constitutional ques
tions. North Dixie Theatre, Inc. v. McCullion, D.C.O hio, 
613 F.Supp. 1339, 1343. 
Pulsare /p�lseriy/. Lat. In the civil law, to beat; to 
accuse or charge; to proceed against at law. 
Pulsator /p�lseyt�r/. The plaint iff, or actor. 
Punctum temporis /p;)IJkt�m temp�r�s /. Lat. A point 
of time; an indivisible period of time; the shortest space 
of time; an instant. 
Pundbrech /pawndbriych/. In old English law, pound
breach; the offense of breaking a pound. The illegal 
taking of cattle out of a pound by any means whatsoev
er. 
Punishable. Deserving of or capable or liable to punish
ment; capable of being punished by law or right. Peo
ple v. Superior Court of City and County of San Francis
co, 116 Cal.App. 412, 2 P.2d 843, 844. See Criminal. 
Punishment. Any fine, penalty, or confinement inflict
ed upon a person by the authority of the law and the 
judgment and sentence of a court, for some crime or 
offense committed by him, or for his omission of a duty 
enjoined by law. A deprivation of property or some 
right. But does not include a civil penalty redounding 
to the benefit of an individual, such as a forfeiture of 
interest. People v. Vanderpool, 20 Cal.2d 746, 128 P.2d 
513, 515. See also Sentence. 
Cruel and unusual punishment. As prohibited by 
Eighth Amendment, is such punishment as would 
amount to torture or barbarity, and any cruel and 
degrading punishment not known to the common law, 
and also any punishment so disproportionate to the 
offense as to shock the moral sense of the community. 
In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519. 
Punishment which is excessive for the crime committed 
is cruel and unusual. Coker v. Georgia, 433 U.S. 584, 97 
S.Ct. 2861, 53 L.Ed.2d 982. Such punishment cannot be 
defined with specificity; it is flexible and tends to broad
en as society tends to pay more regard to human decen
cy and dignity and becomes, or likes to think that it 
becomes, more humane. Holt v. Sarver, D.C.Ark., 309 
1234 
F.Supp. 362, 365, 380. The death penalty is not per se 
cruel and unusual punishment within the prohibition of 
the 8th Amendment, U.S.C onst., but states must follow 
strict safeguards in the sentencing of one to death. 
Gregg v. Georgia, 428 U.S. 153,96 S.Ct. 2909, 49 L.Ed.2d 
859. 
The fundamental respect for humanity underlying the 
Eighth Amendment requires consideration of the char
acter and record of the individual offender and the 
circumstances of the particular offense as a constitution
ally indispensable part of the process of inflicting the 
penalty of death. Woodson v. North Carolina, 428 U.S. 
280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. 
Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1995, 52 
L.Ed.2d 637. 
See also Capital (Capital punishment ); Corporal pun
ishment; Excessive punishment; Hard labor; Sentence. 
Cumulative punishment. An increased punishment in
flicted for a second or third conviction of the same 
offense, under the statutes relating to habitual crimi
nals. To be distinguished from a "cumulative sen
tence," as to which see Sentence. 
Infamous punishment. Punishment by imprisonment, 
particularly in a penitentiary. Sometimes, imprison
ment at hard labor regardless of the place of imprison
ment. U. S. v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 
L.Ed. 700. 
Punitive. Relating to punishment; having the charac
ter of punishment or penalty; inflicting punishment or 
a penalty. 
Punitive damages. See Damages. 
Punitive statute. One which creates forfeiture or im
poses penalty. 
Pupillus /pyuwpil�s/. Lat. In the civil law, a ward or 
infant under the age of puberty; a person under the 
authority of a tutor (q. v.). 
Pupillus pati posse non intelligitur /pyuwpil�s peytay 
p6siy non int�lij�t�r/. A pupil or infant is not supposed 
to be able to suffer, i.e., to do an act to his own prejudice. 
Pur /p;)r/pur/. L. Fr. By or for. Used both as a 
separable particle, and in the composition of such words 
as "purparty," "purlieu." 
Pur autre vie /p�r 6(w)tra vay/pur 6wtra viy/. For (or 
during) the life of another. An estate pur autre vie is an 
estate in lands which a person holds for the life of 
another person. 
Pur cause de vicinage /p�r k6z d� v�sayn�j/pur k6wz d� 
visinazh /. By reason of neighborhood. See Common. 
Purchase. Transmission of property from one person to 
another by voluntary act and agreement, founded on a 
valuable consideration. Spur Independent School Dist. 
v. W. A. Holt Co., Tex.Civ.App., 88 S.W.2d 1071, 1073. 
To own by paying or by promising to pay an agreed price 
which is enforceable at law. First Nat. Bank & Trust 
Co. of Chickasha v. U.S., C.A.Okl., 462 F.2d 908, 910. In 
a technical and broader meaning relative to land, gener-

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ally means the acquisition of real estate by any means 
whatever except by descent. Oklahoma City v. Board of 
Education of Oklahoma City, 181 Okl. 539, 75 P.2d 201. 
Includes taking by sale, discount, negotiation, mort
gage, pledge, lien, issue or re-issue, gift or any other 
voluntary transaction creating an interest in property. 
U.C.C. § 1-201(32). The term "purchase" includes any 
contract to purchase or otherwise acquire. Securities 
Exchange Act, § 3. 
Quasi purchase. In the civil law, a purchase of property 
not founded on the actual agreement of the parties, but 
on conduct of the owner which is inconsistent with any 
other hypothesis than that he intended a sale. 
Words of purchase. Words which denote the person who 
is to take the estate. Thus, if a person grants land to A. 
for twenty-one years, and after the determination of 
that term to A.'s heirs, the word "heirs" does not denote 
the duration of A.'s estate, but the person who is to take 
the remainder on the expiration of the term, and is 
therefore called a "word of purchase." 
Purchase agreement. An agreement between a buyer 
and seller of property, setting forth, in general, the price 
and terms of the sale. A sales agreement or contract to 
sell. See also Buy and sell agreement. 
Purchase method of accounting. A method of ac
counting for mergers in which the total value paid or 
exchanged for the acquired firm's assets is recorded on 
the acquiring firm's books. Any difference between the 
fair market value of the assets acquired and the pur
chase price is recorded as goodwill. 
Purchase money. The actual money paid in cash or 
check initially for the property while the balance may 
be secured by a mortgage and note calling for periodic 
payments. See also Earnest money. 
As used with reference to part performance under 
statute of frauds, comprehends consideration, whether it 
be money or property or services, for which lands are to 
be conveyed. Hall v. Haer, 160 Okl. 118, 16 P.2d 83, 84. 
Purchase money mortgage. A mortgage or security 
device taken back to secure the performance of an 
obligation incurred in the purchase of the property. A 
"purchase money" security interest for personal proper
ty is controlled by Article 9 of the Uniform Commercial 
Code. See also Mortgage; Purchase money security inter
est. 
Purchase money resulting trust. Such ordinarily 
arises when the purchase price of property is paid by 
one person and at his or her discretion the vendor 
transfers the property to another, who is deemed to hold 
the property in trust for the person furnishing the 
consideration. Slocum v. Hammond, Iowa, 346 N.W.2d 
485, 492. When one person furnishes the money for the 
purchase of property title to which is to be taken in the 
name of another, the party furnishing the funds is the 
equitable owner under a purchase money resulting 
trust. It is not necessary that he furnish the entire 
purchase price, but he must intend to acquire an inter
est. 
PURCHASER 
Purchase money security interest. One which is tak
en or retained by seller of item to secure its price or 
taken by person who advances funds to enable one to 
acquire rights in collateral. In re Damron, Bkrtcy.Ky., 
5 B.R. 357, 358. A security interest is a "purchase 
money security interest" to the extent that it is: (a) 
taken or retained by the seller of the collateral to secure 
all or part of its price; or (b) taken by a person who by 
making advances or incurring an obligation gives value 
to enable the debtor to acquire rights in or the use of 
collateral if such value is in fact so used. U.C.C. 
§ 9-107. 
Purchase order. Document authorizing a seller to de
liver goods with payment to be made later. A written 
authorization calling on a vendor or supplier to furnish 
goods to the person ordering such. It constitutes an 
offer which is accepted when the vendor supplies the 
quantity and quality ordered. 
Purchase price. Price agreed upon as a consideration 
for which property or goods are sold and purchased. 
Purchaser. One who acquires real property in any 
other mode than by descent. One who acquires either 
real or personal property by buying it for a price in 
money; a buyer; vendee. One who has contracted to 
purchase property or goods. Also, a successful bidder at 
judicial sale. In re Spokane Sav. Bank, 198 Wash. 665, 
89 P.2d 802, 806. A person who orders and pays for 
goods when the sale is for cash or who is legally obligat
ed to pay for them if the sale is on credit. L. M. Berry & 
Co. v. Blackmon, 129 Ga.App. 347, 199 S.E.2d 610, 612. 
Term may be employed in broad sense to include anyone 
who obtains title otherwise than by descent and distribu
tion but is more commonly used to refer to a vendee or 
buyer who has purchased property for valuable consider
ation. Smith v. Enochs, D.C.Miss., 233 F.Supp. 925, 927. 
One who takes by purchase which includes taking by 
sale, discount, negotiation, mortgage, pledge, lien, issue 
or re-issue, gift, or any other voluntary transaction 
creating an interest in property. U.C.C. § 1-201(32)(33). 
The term "purchaser" means a person who, for ade
quate and full consideration in money or money's worth, 
acquires an interest (other than a lien or security inter
est) in property which is valid under local law against 
subsequent purchasers without actual notice. 1.R.e. 
§ 6323(h). 
Transferee of a voluntary transfer, and includes im
mediate or mediate transferee of such a transferee. 
Bankruptcy Code § 101. 
Bona fide purchaser. See Bona fide. 
First purchaser. In the law of descent, this term signi
fies the ancestor who first acquired (in any other man
ner than by inheritance) the estate which still remains 
in his family or descendants. 
Innocent purchaser. One who acquires title to property 
without knowledge of any defect in the title. See also 
In nocent purchaser.

PDF page 1249

PURCHASER 
Purchaser of a note or bill. The person who buys a 
promissory note or bill of exchange from the holder 
without his indorsement. 
Purchaser for value. One who pays consideration for 
property or goods bought. 
Pure. Absolute; complete; simple; unmixed; unqual
ified. Free from conditions or restrictions, as in the 
phrases pure charity, pure debt, pure obligation, pure 
plea, pure villenage, as to which see the nouns. See also 
Purity. 
Pure accident. Implies that accident was caused by 
some unforeseen and unavoidable event over which nei
ther party to the action had control, and excludes the 
idea that it was caused by carelessness or negligence of 
defendant. Maletis v. Portland Traction Co., 160 Or. 30, 
83 P.2d 141, 142. Unavoidable accident has been held to 
be synonymous. Brewer v. Berner, 15 Wash.2d 644, 131 
P.2d 940, 942. See Accident; Act of God. 
Pure race statute. In some states, the first purchaser of 
real estate to record regardless of notice has the best 
claim to title and hence it is described as a race to the 
registry of deeds or other office for the recording of 
deeds and instruments of conveyance of real property. 
See also Recording acts. 
Pur faire proclamer Ip�r fer pr;}kleym;}r/pur fer 
proklamey I. An ancient writ addressed to the mayor or 
bailiff of a city or town, requiring him to make procla
mation concerning nuisances, etc. 
Purgation Ip;}rgeysh;}n/. The act of cleansing or exon
erating one's self of a crime, accusation, or suspicion of 
guilt, by denying the charge on oath or by ordeal. 
Canonical purgation was made by the party's taking 
his own oath that he was innocent of the charge, which 
was supported by the oath of twelve compurgators, who 
swore they believed he spoke the truth. To this succeed
ed the mode of purgation by the single oath of the party 
himself, called the "oath ex officio," of which the mod
ern defendant's oath in chancery is a modification. 3 
Bl.Comm. 447; 4 Bl.Comm. 368. 
Vulgar purgation consisted in ordeals or trials by hot 
and cold water, by fire, by hot irons, by battel, by 
corsned, etc. 
Purge. To cleanse; to clear. To dear or exonerate from 
some charge or imputation of guilt, or from a contempt. 
Purge des hypotheques Ip�rzh deyz iypowtek/. Fr. In 
French law, an expression used to describe the act of 
freeing an estate from the mortgages and privileges with 
which it is charged, observing the formalities prescribed 
by law. 
Purity. Within food adulteration statute is freedom 
from extraneous matter or anything debasing or con
taminating. People v. Enders, 38 Misc.2d 746, 237 N.Y. 
S.2d 879, 889. See also Pure. 
Purpart I p�rpartl . A share; a part in a division; that 
part of an estate, formerly held in common, which is by 
partition allotted to any one of the parties. The word 
was anciently applied to the shares falling separately to 
1236 
co-parceners upon a division or partition of the estate, 
and was generally spelled "purparty;" but it is now used 
in relation to any kind of partition proceedings. 
Purparty I p�rp;}rtiy I. That part of an estate which, 
having been held in common by parceners, is by parti
tion allotted to any of them. To make purparty is to 
divide and sever the lands which fall to parceners. 
Formerly pourparty. The word purpart is commonly 
used to indicate a part of an estate in any connection. 
Purport, n. Meaning; import; substantial meaning; 
substance; legal effect. The "purport" of an instrument 
means the substance of it as it appears on the face of the 
instrument, and is distinguished from "tenor," which 
means an exact copy. 
Purport, v. To convey, imply, or profess outwardly; to 
have the appearance of being, intending, claiming, etc. 
United States v. 306 Cases Containing Sandford Tomato 
Catsup with Preservative, D.C.N.Y., 55 F.Supp. 725, 727. 
Purpose. That which one sets before him to accomplish 
or attain; an end, intention, or aim, object, plan, project. 
Term is synonymous with ends sought, an object to be 
attained, an intention, etc. Andresen v. Board of Sup'rs 
of Santa Cruz County, 235 C.A.2d 436, 45 Cal.Rptr. 306, 
309. 
Purposely. Intentionally; designedly; consciously; 
knowingly. Act is done "purposely" if it is willed, is 
product of co�scious design, intent or plan that it be 
done, and is done with awareness of probable conse
quences. Horne v. State, Ind., 445 N.E.2d 976, 979. A 
person acts purposely with respect to a material element 
of an offense when: (i) if the element involves the 
nature of his conduct or a result thereof, it is his 
conscious object to engage in conduct of that nature or 
to cause such a result; and (ii) if the element involves 
the attendant circumstances, he is aware of the exist
ence of such circumstances or he believes or hopes that 
they exist. Model Penal Code, § 2.02. 
Purpresture Ip;}rpresty;}r/. An encroachment upon 
public rights and easements by appropriation to private 
use of that which belongs to public. Hill Farm, Inc. v. 
Hill County, Tex., 436 S.W.2d 320, 321. An inclosure by 
a private party of a part of that which belongs to and 
ought to be open and free to the enjoyment of the public 
at large. It is not necessarily a public nuisance. A 
public nuisance must be something which subjects the 
public to some degree of inconvenience or annoyance; 
but a purpresture may exist without putting the public 
to any inconvenience whatever. 
Purprise Ip;}rpniyz/. L. Fr. A close or inclosure; as 
also the whole compass of a manor. 
Purpure, Ip�rp(y);}rl or porprin Iporpr;}n/. A term 
used in heraldry; the color commonly called "purple," 
expressed in engravings by lines in bend sinister. In the 
arms of princes it was formerly called "mercury," and in 
those of peers "amethyst ." 
Purse. Some valuable thing, offered by a person for the 
doing of something by others; prize; premium. Sum of 
money available to winner(s) of contest or event.

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1237 
Purser /pfiJrs';}r/. The person on a ship or vessel in 
charge of financial accounts and transactions with pas
sengers. 
Pursuant. A following after or following out. To exe
cute or carry out in accordance with or by reason of 
something. To do in consequence or in prosecution of 
anything. "Pursuant to" means "in the course of carry
ing out: in conformance to or agreement with: accord
ing to" and, when used in a statute, is a restrictive term. 
Knowles v. Holly, 82 Wash.2d 694, 513 P.2d 18, 23. 
Pursue. To follow, prosecute, or enforce a matter judi
cially, as a complaining party. To pursue the practice of 
any profession or business, contemplates a course of 
business or professional practice, and not single isolated 
acts arising from unusual circumstances. Dane v. 
Brown, C.C.A.Mass., 70 F.2d 164, 165. 
Pursuer. One who pursues; one who follows in order to 
overtake. 
Pursuit. That which one engages in as an occupation, 
trade, or profession; that which is followed as a contin
ued or at least extended and prolonged employment. 
Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 
P.2d 960. Activity that one pursues or engages in 
seriously and continually or frequently as vocation or . 
profession or as an avocation. Holman v. Oriental Re
finery, 75 N.M. 52, 400 P.2d 471, 475. To follow or 
chase in order to apprehend or overtake. See also Fresh 
pursuit. 
Pursuit of happiness. As used in constitutional law, 
this right includes personal freedom, freedom of con
tract, exemption from oppression or invidious discrimi
nation, the right to follow one's individual preference in 
the choice of an occupation and the application of his 
energies, liberty of conscience, and the right to enjoy the 
domestic relations and the privileges of the family and 
the home. Butchers' Union, etc., Co. v. Crescent City 
Live Stock, etc., Co., 4 S.Ct. 652, 111 U.S. 746, 28 L.Ed. 
585. The right to follow or pursue any occupation or 
profession without restriction and without having any 
burden imposed upon one that is not imposed upon 
others in a similar situation. Myers v. City of Defiance, 
67 Ohio App. 159, 36 N.E.2d 162, 21 O.L.A. 165. While 
included as one of the inalienable rights in the Declara
tion of Independence, such right is not included in the 
U.S. Constitution. 
Pur tant que /p�r trent kyliw/pur ton k';}/. Forasmuch 
as; because; to the intent that. 
Purus idiota /pyur';}s idiyowt';}/. Lat. A congenital id
iot. 
Purview. Enacting part of a statute, in contradistinc
tion to the preamble. That part of a statute commenc
ing with the words "Be it enacted," and continuing as 
far as the repealing clause; and hence, the design, 
contemplation, purpose, or scope of the act. 
Pusher. Person who sells illicit drugs. Johnson v. U.S., 
C.A.Neb., 484 F.2d 309, 310. See e.g. 21 U.S.C.A. § 841. 
Put. An option permitting its holder to sell a certain 
stock or commodity at a fixed price for a stated quantity 
PYRAMID SALES SCHEME 
and within a stated period. Such a right is purchased 
for a fee paid the one who agrees to accept the stock or 
goods if they are offered. The buyer of this right to sell 
expects the price of the stock or commodity to fall so 
that he can deliver the stock or commodity (the put) at a 
profit. If the price rises, the option need not be e �er
cised. The reverse transaction is a call. See Put option; 
Puts and calls. 
Putagium hrereditatem non adimit /pyuwteyjiy';}m 
h';}red';}teyt';}m non red';}m';}t/. Incontinence does not take 
away an inheritance. 
Putative. Reputed; supposed; commonly esteemed. 
Putative father. The alleged or reputed father of a 
child born out of wedlock. 
Putative marriage. A marriage contracted in good 
faith and in ignorance (on one or both sides) that impedi
ments exist which render it unlawful. Davis v. Davis, 
Tex.Civ.App., 507 S.W.2d 841, 844. 
Putative spouse. One who believes in good faith that 
he or she is party to a valid marriage, even though 
marriage is invalid. Neureither v. Workmen's Compen
sation Appeals Bd., 15 C.A.3d 429, 93 Cal.Rptr. 162, 165. 
Put bond Right of bondholder to redeem bond before 
maturity. See also Bond. 
Put in. To place in due form before a court; to place 
among the records of a court. 
Put off. To postpone. In a bargain for the sale of goods, 
it may mean to postpone its completion or to procure a 
resale of the goods to a third person. 
Put option. One under which buyer of the option may 
demand payment by the writer of a fixed price (the 
"striking" price) upon delivery by the buyer of a speci
fied number of shares of stock. Gordon & Co. v. Board 
of Governors of Federal Reserve System, D.C.Mass., 317 
F.Supp. 1045, 1046. 
Puts and calls. A "put" in the language of the commod
ity or stock market is a privilege of delivering or not 
delivering the subject-matter of the sale; and a "call" is 
a privilege of calling or not calling for it. See Put; Put 
option. 
Putting in fear. These words are used in the common
law definition of a robbery from the person; i.e. the 
offense must have been committed by putting in fear the 
person robbed. 4 Bl.Comm. 243. No matter how slight 
the cause creating the fear may be, if transaction is 
attended with such circumstances of terror, such threat
ening by word or gesture, as in common experience is 
likely to create an apprehension of danger and induce a 
man to part with his property for sake of his person, 
victim is put in fear. State v. Sawyer, 224 N.C. 61, 29 
S.E.2d 34, 37. 
Pyramiding. In the stock market, a device for increas
ing holdings of a stock by financing new holdings out of 
the increased margin of those already owned. In corpo
rate finance, the use of small equity and capital to 
finance controlling interest in more corporations. See 
also Leverage; Margin. 
Pyramid sales scheme. A device, illegal in many 
states, in which a buyer of goods is promised a payment 
for each additional buyer procured by him.

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Q 
Q.B. An abbreviation of "Queen's Bench." 
Q.B.D. An abbreviation of "Queen's Bench Division." 
Q.C. An abbreviation of "Queen's Counsel." 
Q.C.F. An abbreviation of "quare clausum fregit" (q.v.). 
Q.D. An abbreviation of "quasi dicat," as if he should 
say. 
Q.E.D. Abbreviation for quod erat demonstrandum, 
which refers to that which was to be proved. Used in 
mathematics at end of proof. 
Q.E.N. An abbreviation of "quare executionem non," 
wherefore execution [should] not [be issued]. 
Q.S. An abbreviation for "Quarter Sessions." 
Q.T. An abbreviation of "qui tam" (q.v.). 
Q-TIP trust. Refers to qualified terminal interest prop
erty trust. A type of marital deduction bequest in 
which the surviving spouse receives all of the income for 
life but is not given a general power of appointment. 
Property qualifies for marital deduction only to the 
extent that the executor so elects on the Federal estate 
tax return. I.R.C. § 2056(b)(7)(B)(i)(III). The Economic 
Recovery Tax Act of 1981 (ERTA) qualified the Q-TIP 
trust for the marital deduction. 
Qua Ikwey I. Lat. Considered as; in the character or 
capacity of. For example, "the trustee qua trustee [that 
is, in his character as trustee] is not liable," etc. 
Quack. A pretender to medical skill which he does not 
possess; one who practices as a physician or surgeon 
without adequate experience or due qualification. 
Quacunque via data Ikweyk�IJkwiy vay� deyt�/. Lat. 
Whichever way you take it. 
Quadragesima Ikwodr�jez�m�/. Lat. The fortieth. 
The first Sunday in Lent is so called because it is about 
the fortieth day before Easter. 
Quadragesimals IkwOdr�jez�m�lzl. Offerings formerly 
made, on Mid-Lent Sunday, to the mother church. 
Quadrant Ikw6dr�nt/. An angular measure of ninety 
degrees. One of the quarters created by two intersect
ing roads or streets. 
Quadriennium Ikwodr(iy)en(i)y�m/. Lat. In the civil 
law, the four-year course of study required to be pursued 
by law-students before they were qualified to study the 
Code or collection of imperial constitutions. 
Quadripartite IkwOdr�partayt/. Divided into four 
parts. A term applied in conveyancing to an indenture 
executed in four parts. 
Quadruplatores Ikwodr�pl�t6riyzl. Lat. In Roman 
law, informers who, if their information were followed 
by conviction, had the fourth part of the confiscated 
goods for their trouble. 
Quadruplicatio Ikwodr�pl�keysh(iy)ow/. Lat. In the 
civil law, a pleading on the part of a defendant, corre
sponding to the rebutter at common law. The third 
pleading on the part of the defendant. 
Quadruplication Ikwodr�pl�keysh�n/. A pleading in 
admiralty, third in order after a replication; now obso
lete. Formerly this word was used instead of surrebut
ter. 
Qure ab hostibus capiuntur, statim capientium fiunt 
Ikwiy reb (h)6st�b�s krepiy�nt�r, steyt�m krepiyen
sh(iy)�m fay�nt/. Things which are taken from enemies 
immediately become the property of the captors. 
Qure ab initio inutilis fuit institutio, ex post facto 
convalescere non potest Ikwiy reb �nish(iy)ow 
inyuwt�bs f(y)uw�t inst�t(y)uwsh(iy)ow, eks powst 
frektow konv�les�riy non p6wt�st/. An institution 
which was at the beginning of no use or force cannot 
acquire force from after matter. 
Qure ab initio non valent, ex post facto convalescere 
non possunt Ikwiy reb �nish(iy)ow non vrel�nt, eks 
powst frektow konv�les�riy non p6s�nt/. Things invalid 
from the beginning cannot be made valid by subsequent 
act. 
Qure accessionum locum obtinent, extinguuntur cum 
principales res peremptre fuerint Ikwiy �ksesiy6wn�m 
16wk�m 6bt�n�nt, ekstiIJgw�nt�r k�m prins�peyliyz riyz 
p�rem(p)tiy f(y)uw�rint/. Things which hold the place 
of accessories are extinguished when the principal 
things are destroyed. 
Qure ad unum finem loquuta sunt, non debent ad 
alium detorqueri Ikwiy red yuwn�m fayn�m l�kyuwt� 
s�nt, non deb�nt red eyliy�m diytorkwiray I. Those 
words which are spoken to one end ought not to be 
perverted to another. 
Qure cohrerent personre a persona separari nequeunt 
Ikwiy k�hir�nt p�rs6wniy ey p�rs6wn� sep�reray nek
wiy�nt/. Things which cohere to, or are closely connect
ed with, the person, cannot be separated from the per
son. 
1238

PDF page 1252

1239 
Qure communi lege derogant stricte interpretantur 
Ikwiy k�myuwnay liyjiy der�g�nt striktiy �n
t�rpr�trent�r/. [Statutes] which derogate from the com
mon law are strictly interpreted. 
Qure contra rationem juris introducta sunt, non de
bent trahi in consequentiam Ikwiy kontr� 
rreshiyown�m jur�s intr�d�kt� s:lnt, non deb�nt treyhay 
in kons�kwensh(iy)�m/. Things introduced contrary to 
the reason of law ought not to be drawn into a prece
dent. 
Qurecunque intra rationem legis invenhmtur intra 
legem ipsam esse judicantur Ikwiyk�IJkwiy intr� 
rreshiyown�m liyj�s inviyniy�nt�r intr� liyj�m ips�m esiy 
juwd�krent�r/. Things which are found within the rea
son of a law are supposed to be within the law itself. 
Qure dubitationis causa tollendre inseruntur commu
nem legem non lredunt Ikwiy d(y)uwb�teyshiyown�s 
. koz� tolendiy ins�r�nt�r, k�myuwn�m liyj�m non 
liyd�ntl. Things which are inserted for the purpose of 
removing doubt hurt not the common law. 
Qure dubitationis tollendre causa contractibus inser
untur, jus commune non lredunt Ikwiy d(y)uwb�tey
shiyown�s tolendiy koz� k�ntrrekt�b�s ins�r�nt�r, j�s 
k�myuwniy non liyd�nt/. Particular clauses inserted in 
agreements to avoid doubts and ambiguity do not preju
dice the general law. 
Qure est eadem Ikwiy est iyeyd�m/. Lat. Which is the 
same. Words used for alleging that the trespass or 
other fact mentioned in the plea is the same as that laid 
in the declaration, where, from the circumstances, there 
is an apparent difference between the two. 
Qure incontinenti fiunt inesse videntur Ikwiy inkon
t�nentay fay�nt inesiy v�dent�r I. Things which are 
done incontinently [or simultaneously with an act] are 
supposed to be inherent [in it; to be a constituent part of 
it]. 
Qure in curia regis acta sunt rite agi prresumuntur 
Ikwiy in kyuriy� riyj�s rekt� s:lnt raytiy eyjay priyz(y)�
m�nt�r/. Things done in the king's court are presumed 
to be rightly done. 
Qure in partes dividi nequeunt solida a singulis 
prrestantur Ikwiy in partiyz d�vayday nekwiy�nt sol�d� 
ey siIJgy�l�s pr�strent�r/. Services which are incapable 
of division are to be performed in whole by each individ
ual. 
Qure inter alios acta sunt nemini nocere debent, sed 
prodesse possunt Ikwiy int�r reliyows rekt� s:lnt 
nem�nay nos�riy deb�nt, sed prowdesiy pos�ntl. Trans
actions between strangers ought to hurt no man, but 
may benefit. 
QUa! in testamento ita sunt scripta ut intelligi non 
possint, perinde sunt ac si scripta non essent Ikwiy 
in test�mentow ayt� s:lnt skript� :It intel�jay non pos�nt, 
p�rindiy s:lnt rek say skript� non es�ntl. Things which 
are so written in a will that they cannot be understood, 
are the same as if they had not been written at all. 
QU£ PLURA 
QUa! legi communi derogant non sunt trahenda in 
exemplum Ikwiy liyjay k�myuwnay der�g�nt non s:lnt 
tr�hend� in �gzempl�m/. Things derogatory to the com
mon law are not to be drawn into precedent. 
Qure legi communi derogant stricte interpretantur 
Ikwiy liyjay k�myuwnay der�g�nt striktiy 
int:lrpr�trent�r/. Those things which are derogatory to 
the common law are to be strictly interpreted. 
Qurelibet concessio domini regis capi debet stricte 
contra dominum regem, quando potest intelligi dua
bus viis Ikwiybb�t k�nsesh(iy)ow dom�nay riyj�s krepay 
deb�t striktiy kontr� dom�n�m riyj�m, kwondow powt�st 
intel�jay d(y)uweyb�s vay�s/. Every grant of our lord 
the king ought to be taken strictly against our lord the 
king, when it can be understood in two ways. 
Qurelibet concessio fortissime contra donatorem in
terpretanda est Ikwiyl�b�t k�nsesh(iy)ow fortis�miy 
kontr� down�tor�m int:lrpr�trend� est/. Every grant is 
to be interpreted most strongly against the grantor. 
Qurelibet jurisdictio cancellos suos habet Ikwiyl�b�t 
jur�sdiksh(iy)ow krenselows s(y)uwows heyb�tI. Every 
jurisdiction has its own bounds. 
Qurelibet pardonatio debet capi secundum intention
em regis, et non ad deceptionem regis Ikwiyl�b�t 
pard�neysh(iy)ow deb�t krepay s�k�nd�m intenshiy
own�m riyj�s et non red d�sepshiyown�m riyj�s/. Every 
pardon ought to be taken according to the intention of 
the king, and not to the deception of the king. 
Qurelibet prena corporalis, quamvis minima, major 
est qualibet prena pecuniaria Ikwiyl�b�t piyn� 
korp�reyl�s, kwremvis min�m�, meyj�r est kweyl�b�t 
piyn� p�kyuwniyeriy�/. Every corporal punishment, al
though the very least, is greater than any pecuniary 
punishment. 
Qure mala sunt inchoata in principio vix bono pera
guntur exitu Ikwiy mrel� s;}nt inkoweyt� in prinsipiyow 
viks bownow p;}r�g�nt�r egz�t(y)uw/. Things bad in 
principle at the commencement seldom achieve a good 
end. 
Qure nihil frustra Ikwiy nay(h)�l fr�str�/. Lat. Which 
[does or requires] nothing in vain. Which requires noth
ing to be done, that is, to no purpose. 
Qure non fieri debent, facta, valent Ikwiy non fay�ray 
deb�nt, frekt�, vrel�nt/. Things which ought not to be 
done are held valid when they have been done. 
Qure non valeant singula, juncta juvant Ikwiy non 
vreliy�nt siIJgy�b, j�IJkt� juwvrentl. Things which do not 
avail when separate, when joined avail. 
Qure plura Ikwiy pl(y)ur�/. Lat. In old English prac
tice, a writ which lay where an inquisition had been 
made by an escheator in any county of such lands or 
tenements as any man died seised of, and all that was in 
his possession was imagined not to be found by the 
office; the writ commanding the escheator to inquire 
what more (qure plura) lands and tenements the party 
held on the day when he died, etc.

PDF page 1253

QU£RE 
Qure prreter consuetudinem et morem majorum fiunt 
neque placent neque recta videntur Ikwiy priyt::lr 
konsw::lt(y)uwd::ln::lm et mor::lm m::ljor::lm faY::lnt nekwiy 
phes::lnt nekwiy rekt::l v::ldent::lr I. Things which are done 
contrary to the custom of our ancestors neither please 
nor appear right. 
Qure propter necessitatem recepta sunt, non debent 
in argumentum trahi Ikwiy propt::lr n::lses::lteyt::lm 
r::lsept::l s;lnt, non deb::lnt in argy::lment::lm treyhay I. 
Things which are admitted on the ground of necessity 
ought not to be drawn into question. 
Qureras de dubiis legem bene discere si vis Ikwir::ls 
diy d(y)uwbiY::ls, liyj::lm biyniy dis::lriy say visl. Inquire 
into doubtful points if you wish to understand the law 
well. 
Qurere Ikwiriy I. A query; question; doubt. This word, 
occurring in the syllabus of a reported case or elsewhere, 
shows that a question is propounded as to what follows, 
or that the particular rule, decision, or statement is 
considered as open to question. 
Qurere de dubiis, quia per rationes pervenitur ad 
legitimam rationem Ikwiriy diy d(y)uwbiY::ls, kwaY::l p;lr 
rreshiyowniyz p::lrven::lt::lr red l::ljit::lm::lm rreshiyow
n::lm/. Inquire into doubtful points, because by reason
ing we arrive at legal reason. 
Qurerens Ikwirenz/. Lat. A plaintiff; the plaintiff. 
Qurerens nihil capiat per billam Ikwirenz nay(h)::ll 
krepiY::lt p;lr bi1::lm/. The plaintiff shall take nothing by 
his bill. A form of judgment for the defendant. 
Qurerens non invenit plegium IkwireIiz non inviyn::lt 
plej(iY)::lm/. L. Lat. The plaintiff did not find a pledge. 
A return formerly made by a sheriff to a writ requiring 
him to take security of the plaintiff to prosecute his 
claim. 
Qurerere dat sapere qure sunt legitima vere Ikwir::lriy 
dret srep::lriy kwiy s:)nt l::ljit::lm::l viriy I. To inquire into 
them, is the way to know what things are truly lawful. 
Qure rerum natura prohibentur nulla lege confirmata 
sunt Ikwiy rir::lm n::ltyur::l prow(h)::lbent::lr n:)l::l liyjiy 
konf::lrmeyt::l s;lntl. Things which are forbidden by the 
nature of things are [can be] confirmed by no law. 
Positive laws are framed after the laws of nature and 
reason. 
Qure singula non prosunt, juncta juvant Ikwiy siIJgy::ll::l 
non prows;lnt, j:)IJkt::l juwvrent/. Things which taken 
singly are of no avail afford help when taken together. 
Quresta Ikwiyst::l/. An indulgence or remission of pen
ance, authorized by the Pope. 
Qurestio Ikwest(i)you/. Medieval law. The question; 
the torture; inquiry or inquisition by inflicting the 
torture. 
Roman law. Anciently a species of commission grant
ed by the comitia to one or more persons for the purpose 
of inquiring into some crime or public offense and re
porting thereon. In later times, the qurestio came to 
exercise plenary criminal jurisdiction, even to pronounc-
1240 
ing sentence, and then was appointed periodically, and 
eventually became a permanent commission or regular 
criminal tribunal, and was then called "qurestio perpe
tua." 
Cadit qurestio. The question falls; the discussion ends; 
there is no room for further argument. 
Qurestio vexata. A vexed question or mooted point; a 
question often agitated or discussed but not determined; 
a question or point which has been differently decided, 
and so left doubtful. 
Qurestionarii Ikwest(i)Y::lneriyay I. Those who carried 
quresta about from door to door. 
Qurestiones perpeture Ikwest(i)youwniyz p::lrpetyuwiy I. 
In Roman law, were commissions (or courts) of inquisi
tion into crimes alleged to have been committed. They 
were called "perpeture," to distinguish them from occa
sional inquisitions, and because they were permanent 
courts for the trial of offenders. 
Qurestor Ikwestor I. Lat. A Roman magistrate, whose 
office it was to collect the public revenue. 
Qurestores classici Ikwestoriyz klres::lsay I. Lat. In Ro
man law, officers entrusted with the care of the public 
money. Their duties consisted in making the necessary 
payments from the rerarium, and receiving the public 
revenues. Of both they had to keep correct accounts in 
their tabulre publicre. Demands which any one might 
have on the rerarium, and outstanding debts were like
wise registered by them. Fines to be paid to the public 
treasury were registered and exacted by them. They 
were likewise to provide proper accommodations for 
foreign ambassadors and such persons as were connect
ed with the republic by ties of public hospitality. Last
ly, they were charged with the care of the burials and 
monuments of distinguished men, the expenses for 
which had been decreed by the senate to be paid by the 
treasury. Their number at first was confined to two; 
but this was afterwards increased as the empire became 
extended. There were qurestors of cities and of prov
inces, and qurestors of the army; the latter were in fact 
paymasters. 
Qurestores parricidii Ikwestoriyz prer::lsaydiyay I. See 
Questores parricidii. 
Qurestor sacri palatii Ikwestor srekray p::lleyshiyay I. 
Qurestor of the sacred palace. An officer of the imperial 
court at Constantinople, with powers and duties resem
bling those of a chancellor. 
Qurestus Ikwest::ls/. L. Lat. That estate which a man 
has by acquisition or purchase, in contradistinction to 
"hrereditas, " which is what he has by descent. 
Qure sunt minoris culpre sunt majoris infamire Ikwiy 
s;lnt m::lnor::ls k:)lpiy s;lnt m::ljor::ls infeymiyiy I. [Of
fenses] which are of a lower grade of guilt are of a 
higher degree of infamy. 
Quale jus Ikwoliy j:)s/. Lat. In old English law, a 
judicial writ; which lay where a man of religion had 
judgment to recover land before execution was made of 
the judgment. It went forth to the escheator between

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1241 
judgment and execution, to inquire what right the reli
gious person had to recover, or whether the judgment 
was obtained by the collusion of the parties, to the 
intent that the lord might not be defrauded. 
Qualification. The possession by an individual of the 
qualities, properties, or circumstances, natural or adven
titious, which are inherently or legally necessary to 
render him eligible to fill an office or to perform a 
public duty or function. Thus, a "qualified voter" is one 
who meets the residency, age, and registration require
ments. 
Also, a modification or limitation of terms or lan
guage; usually intended by way of restriction of expres
sions which, by reason of their generality, would carry a 
larger meaning than was designed. 
See also Qualified. 
Qualified. Adapted; fitted; entitled; susceptible; capa
ble; competent; fitting; possessing legal power or capac
ity; eligible; as a "qualified voter" (q.v.). Applied to one 
who has taken the steps to prepare himself for an 
appointment or office, as by taking oath, giving bond, 
etc. One who has a particular status through some 
endowment, acquisition, or achievement, or it may de
scribe one who has obtained appropriate legal power or 
capacity by taking an oath, completing a form, or com
plying with some other routine requirement. Lehner v. 
Crane Co., D.C.Pa., 448 F.Supp. 1127, 1135. One who 
has mental or physical ability to perform requirements 
of job, office, or the like. Also means limited; restrict
ed; confined; modified; imperfect; or temporary. 
As to qualified Acceptance; Estate; Fee; Indorsement; 
Nuisance; Oath; Property; Profit-sharing plan, see those 
titles. See also Capacity; Competency; Duly qualified; 
Eligible. 
Qualified elector. A person who is legally qualified to 
vote. See also Qualified voter. 
Qualified immunity. See Immunity. 
Qualified opinion. A statement in an audit report 
accompanying financial statements which expresses ex
ceptions or qualifications to certain items in financial 
statements. 
Qualified pension plans. See Pension plan. 
Qualified privilege. One defense to prima facie case of 
defamation is "qualified privilege," also referred to as 
conditional privilege, in which interest that defendant is 
seeking to vindicate is conditioned upon publication in 
reasonable manner and for proper purpose. Hahn v. 
Kotten, 43 Ohio St.2d 273, 331 N.E.2d 713, 717. "Abso
lute privilege" renders defendant absolutely immune 
from civil liability for his defamatory statements, while 
"qualified privilege" protects defendant from liability 
only if he uttered defamatory statements without actual 
malice. Martinez v. Cardwell, 25 Ariz.App. 253, 542 
P.2d 1133, 1135. See also Privilege. 
Qualified stock option. An option to purchase shares 
awarded to an employee of the corporation under terms 
QUAMDIU SE BENE GESSERIT 
that qualify the option for special tax' treatment under 
the Internal Revenue Code. 
Qualified terminable interest property (Q-TIP). See 
O-TIP trust. 
Qualified voter. A legal voter. A person qualified to 
vote generally; i.e. one who meets the residency, age, 
and registration requirements. One having constitu
tional qualifications for privilege, who is duly registered 
pursuant to law, and has present right to vote at elec
tion being held. State ex reI. Burke v. Campbell, Mo. 
App., 542 S.W.2d 355, 357. 
Qualify. To make one's self fit or prepared to exercise a 
right, office, or franchise. To take the steps necessary 
to prepare one's self for an office or appointment, as by 
taking oath, giving bond, etc. Also to limit; to modify; 
to restrict. Thus, it is said that one section of a statute 
qualifies another. 
Qualifying share. A share of common stock owned by a 
person in order to qualify as a director of the issuing 
corporation in a corporation that requires directors to be 
shareholders. 
Qualitas qure inesse debet, facile prresumitur 
Ikw61�tres kwiy inesiy deb�t, fres�liy pr�z(y)uwm�t�r/. A 
quality which ought to form a part is easily presumed. 
Quality. Quality is descriptive of organic composition of 
substance, expressed in definite quantitative units, and 
definitive of character, nature and decree of excellence 
of an article. Dean Rubber Mfg. Co. v. U. S., C.A.Mo., 
356 F.2d 161, 163. In respect to persons, this term 
denotes comparative rank; state or condition in relation 
to others; social or civil position or class. In pleading, it 
means an attribute or characteristic by which one thing 
is distinguished from another. Adoptiveness, suitable
ness, fitness; grade; condition. Within food adultera
tion statute means character or nature, as belonging to 
or distinguishing a thing, or character with respect to 
excellence, fineness, etc., or grade of excellence. People 
v. Enders, 38 Misc.2d 746, 237 N.Y.S.2d 879, 888, 889. 
Quality of estate. The period when, and the manner in 
which, the right of enjoying an estate is exercised. It is 
of two kinds: (1) The period when the right of enjoying 
an estate is conferred upon the owner, whether at 
present or in future; and (2) the manner in which the 
owner's right of enjoyment of his estate is to be exer
cised, whether solely, jointly, in common, or in coparcen
ary. 
Quamdiu Ikwremdiyuw I. Lat. As long as; so long as. 
A word of limitation in old conveyances. 
Quamdiu se bene gesserit Ikwremdiyuw siy biyniy 
jes�r�tI. As long as he shall behave himself well; dur
ing good behavior; a clause frequent in letters patent or 
grants of certain offices, to secure them so long as the 
persons to whom they are granted shall not be guilty of 
abusing them, the opposite clause being "durante bene 
placito" (during the pleasure of the grantor). 
Quam longum debet esse rationabile tempus non 
def'mitur in lege, sed pendet ex discretione justiciar-

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QUAM RATIONABILIS DEBET 
iorum Ikwrem'lolJg;)m deb;)t esiy rresh;)neyb;)liy temp;)s 
non d;)fin;)t;)r in liyjiy, sed pend;)t eks d;)skreshiyowniy 
j;)stishiyeriyor;)m/. How long reasonable time ought to 
be is not defined by law, but depends upon the discretion 
of the judges. 
Quam rationabilis debet esse finis, non deimitur, sed 
omnibus circumstantiis inspectis pendet ex justici
ariorum discretione Ikwrem rresh;)neyb;)l;)s deb;)t esiy 
fayn;)s, non d;)fin;)t;)r, set omn;)b;)s s:}rk;)mstrenshiy;)s 
;)nspekt;)s pend;)t eks j;)stishiyeriyor;)m d;)skresh
iyowniy I. What a reasonable fine ought to be is not 
defined, but is left to the discretion of the judges, all the 
circumstances being considered. 
Quamvis aliquid per se non sit malum, tamen, si sit 
mali exempli, non est faciendum Ikwremvis rel;)kwid 
p:}r siy non sit mrel;)m, trem;)n, say sit mrelay ;)gzemplay, 
non sit freshiyend;)m/. Although a thing may not be bad 
in itself, yet, if it is of bad example, it is not to be done. 
Quamvis lex generaliter loquitur, restringenda ta
men est, ut, cessante ratione, ipsa cessat Ikwremvis 
leks jen;)reyl;)t;)r lowkw;)t;)r, restrinjend;) trem;)n est, :}t, 
s;)srentiy rreshiyowniy ips;) ses;)t/. Although a law 
speaks generally, yet it is to be restrained, so that when 
its reason ceases, it should cease also. 
Quando abest provisio partis� adest provisio legis 
Ikwondow rebest pr;)viz(h)(i)yow part;)s, redest 
pr;)viz(h)(i)yow liyj;)s/. When the provision of the party 
is wanting, the provision of the law is at hand. 
Quando aliquid mandatur, mandatur et omne per 
quod pervenitur ad illud Ikwondow rel;)kwid 
mrendeyt;)r, mrendeyt;)r et omniy p:}r kwod p;)rven;)t;)r red 
il;)d/. When anything is commanded, everything by 
which it can be accomplished is also commanded. 
Quando aliquid per se non sit malum, tamen si sit 
mali exemplii, non est faciendum Ikwondow rel;)kwid 
p:}r siy non sit mrel;)m, trem;)n say sit mrelay ;)gzemplay, 
non est freshiyend;)m/. When anything by itself is not 
evil, and yet may be an example for evil, it is not to be 
done. 
Quando aliquid prohibetur ex directo, prohibetur et 
per obliquum Ikwondow rel;)kwid prow(h);)biyt;)r eks 
d;)rektow, prow(h);)biyt;)r et p�r ;)blaykw;)m/. When 
anything is prohibited directly, it is prohibited also 
indirectly. 
Quando aliquid prohibetur, prohibetur et omne per 
quod devenitur ad illud Ikwondow rel;)kwid 
prow(h);)biyt;)r, prow(h);)biyt;)r et omniy p:}r kwod 
d;)ven;)t;)r red il;)d/. When anything is prohibited, every
thing by which it is reached is prohibited also. That 
which cannot be done directly shall not be done indirect
ly. 
Quando aliquis aliquid concedit, concedere videtur 
et id sine quo res uti non potest Ikwondow rel;)kwis 
rel;)kwid k;)nsiyd;)t, k;)nsiyd;)riy v;)diyt;)r et id sayniy 
kwow riyz yuwtay non powt;)st/. When a person grants 
anything, he is supposed to grant that also without 
which the thing cannot be used. When the use of a 
1242 
thing is granted, everything is granted by which the 
grantee may have and enjoy such use. 
Quando charta continet generalem clausulam, post
eaque descendit ad verba specialia qure clausulre 
generali sunt consentanea, interpretanda est charta 
secundum verba specialia Ikwondow kart;) kontin;)t 
jen;)reybm kloz(y);)l;)m, powstiyeykwiy d;)send;)d red 
v�rb;) speshiyeyl(i)y;) kwiy klozy;)liy jen;)reylay s:}nt 
konsenteyn(i)y;), int:}rpr;)trend;) :}st kart;) s;)k�nd;)m v�rb;) 
speshiyeyl(i)y;)I . When a deed contains a general 
clause, and afterwards descends to special words which 
are agreeable to the general clause, the deed is to be 
interpreted according to the special words. 
Quando de una et eadem re duo onerabiles existunt, 
unus, pro insufficientia alterius, de integro onerabi
tur Ikwondow diy yuwn;) et iyeyd;)m riy d(y)uwow 
own;)reyb;)liyz ;)gzist;)nt, yUwn;)s, prow ins;)fishiyensh(iy
);) oltiriy;)s, diy int;)grow own;)reyb;)t;)r I. When there 
are two persons liable for one and the same thing, one of 
them, in case of default of the other, shall be charged 
with the whole. 
Quando dispositio referri potest ad duas res ita quod 
secundum relationem unam vitietur et secundum 
alteram utilis sit, tum facienda est relatio ad illam 
ut valeat dispositio Ikwondow disp;)zish(iy)ow r;)f�ray 
powt;)st red d(y)uw;)s riyz ayt;) kwod s;)k;}nd;)m 
r;)leyshiyown;)m yUwn;)m vishiyiyt;)r et s;)k�nd;)m 
olt;)r;)m yuwt;)l;)s sit, t:}m feyshiyend;) est r;)leysh(iy)ow 
red ibm :}t vreliy;)t disp;)zish(iy)ow I. When a disposition 
may refer to two things, so that by the former it would 
be vitiated, and by the latter it would be preserved, then 
the relation is to be made to the latter, so that the 
disposition may be valid. 
Quando diversi desiderantur actus ad aliquem sta� 
tum perficiendum, plus respicit lex actum origina
lem Ikwondow d;)v�rsay d;)sid;)rrent;)r rekt;)s red rel;)kw;)m 
steyt;)m p;)rfishiyend;)m, pl;}s resp;)s;)t leks rekt;)m 
;)rij;)neyl;)m/. When different acts are required to the 
formation of any estate, the law chiefly regards the 
original act. When to the perfection of an estate or 
interest divers acts or things are requisite, the law has 
more regard to the original act, for that is the funda
mental part on which all the others are founded. 
Quando duo jura concurrunt in una persona, requum 
est ac si essent in diversis Ikwondow d(y)uwow jur;) 
k�nk�r;)nt in yuwn;) p;)rsown;), iykw;)m est rek say es;)nt 
in d;)v�rs;)s/. When two rights concur in one person, it 
is the same as if they were in two separate persons. 
Quando jus domini regis et subditi concurrunt, jus 
regis prreferri debet Ikwondow j�s dom;)nay riyj;)s et 
s�bd;)tay k;)nk�hr;)nt, j�s riyj;)s pr;)f�ray deb;)t/. When 
the right of king and of subject concur, the king's right 
should be preferred. 
Quando lex aliquid alicui concedit, concedere vide
tur et id sine quo res ipsre esse non potest Ikwondow 
leks rel;)kwid rel;)k(w)ay k;)nsiyd;)t, k;)nsiyd;)riy v;)diyt;)r 
et id sayniy kwow riyz ipsiy esiy non powt;)st/. When

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1243 
the law gives a man anything, it gives him that also 
without which the thing itself cannot exist. 
Quando lex aliquid alieui eoneedit, omnia ineidentia 
tacite eoneeduntur Ikw6ndow leks rel�kwid rel�k(w)ay 
k�nsiyd�t, 6mn(i)y� ins�densh(iy)� tres�tiy kons�d�n
br/. When the law gives anything to any one, all 
incidents are tacitly given. 
Quando lex est speeialis, ratio autem generalis, gen
eraliter lex est intelligenda Ikw6ndow leks est 
speshiyeybs, reysh(iy)ow 6t�m jen�reyl�s, jen�rey
bt�r leks est intel�jend�/. When a law is special, but its 
reason [or object] general, the law is to be understood 
generally. 
Quando lieet id quod majus, videtur et licere it quod 
minus Ikw6ndow lays�d it kwod meyj�s, v�diyt�r et 
lis�riy id kwod mayn�s/. When the greater is allowed, 
the less is to be understood as allowed also. 
Quando mulier nobilis nupserit ignobili, desinit esse 
nobilis nisi nobilitas nativa fuerit Ikw6ndow 
myUwliy�r n6wb�l�s n�ps�r�t ign6wb�lay, des�n�t esiy 
n6wb�bs naysay nowbil�tres n�tayv� f(y)uw�r�t/. When 
a noble woman marries a man not noble, she ceases to 
be noble, unless her nobility was born with her. 
Quando plus fit quam fieri debet, videtur etiam illud 
fieri quod faciendum est Ikwondow pl�s fit kwrem 
fay�ray deb�t, v�diyt�r esh(iy)�m il�d fay�ray kwod 
freshiyend�m est/. When more is done than ought to be 
done, that at least shall be considered as performed 
which should have been performed [as, if a man, having 
a power to make a lease for ten years, make one for 
twenty years, it shall be void only for the surplus]. 
Quando quod ago non valet ut ago, valeat quantum 
valere potest Ikwondow kwod eygow non vrel�t �t ey
gow, vreliy�t kw6nt�m v�liriy powt�st/. When that 
which I do does not have effect as I do it, let it have as 
much effect as it can. 
Quando res non valet ut ago, valeat quantum valere 
potest Ikwondow riyz non vrel�t �t eygow, vreliy�t 
kwont�m v�liriy powt�st/. When a thing is of no effect 
as I do it, it shall have effect as far as [or in whatever 
way] it can. 
Quando verba et mens congruunt, non est interpreta
tioni locus Ikw6ndow v�rb� et menz kOIJgruw�nt, non 
est �nt�rpr�teyshiyownay lowk�s/. When the words and 
the mind agree, there is no place for interpretation. 
Quando verba statuti sunt specialia, ratio autem gen
eralis, generaliter statutum est intelligendum 
Ikwondow v�rb� st�tyuwtay s�nt speshiyeyl(i)y�, rey
sh(iy)ow ot�m jen�reyl�s, jen�reybt�r st�tyuwd�m est 
�ntel�jend�m/. When the words of a statute are special, 
but the reason or object of it general, the statute is to be 
construed generally. 
Quango. Acronym for quasi-autonomous non-govern
mental organization, especially in the United Kingdom, 
though the concept and word is American; a semi-public 
administrative body having some members appointed by 
government and financed by government but not an-
I 
QUANTUM MERUIT 
swerable to government, such as tourist· authorities, 
university grants commissions, price and wage commis
sions, prison and parole boards, medical health advisory 
panels. 
Quanti minoris Ikwontay m�n6r�s/. Lat. The name of 
an action in the civil law (and in Louisiana), brought by 
the purchaser of an article, for a reduction of the agreed 
price on account of defects in the thing which diminish 
its value. 
Quantum damnificatus Ikwont�m dremn�f�keyt�s/. 
How much damnified? The name of an issue directed 
by a court of equity to be tried in a court of law, to 
ascertain the amount of compensation to be allowed for 
damage. 
Quantum meruit Ikwont�m mehruw�t/. "Quantum me
ruit" as amount of recovery means "as much as de
served," and measures recovery under implied contract 
to pay compensation as reasonable value of services 
rendered. Kintz v. Read, 28 Wash.App. 731, 626 P.2d 
52, 55. An equitable doctrine, based on the concept that 
no one who benefits by the labor and materials of 
another should be unjustly enriched thereby; under 
those circumstances, the law implies a promise to pay a 
reasonable amount for the labor and materials fur
nished, even absent a specific contract therefor. Swift
ships, Inc. v. Burdin, La.App., 338 So.2d 1193, 1195. 
Essential elements of recovery under quantum meruit 
are: (1) valuable services were rendered or materials 
furnished, (2) for person sought to be charged, (3) which 
services and materials were accepted by person sought 
to be charged, used and enjoyed by him, and (4) under 
such circumstances as reasonably notified person sought 
to be charged that plaintiff, in performing such services, 
was expected to be paid by person sought to be charged. 
Montes v. Naismith & Trevino Const. Co., Tex.Civ.App., 
459 S.W.2d 691, 694. See also Unjust enrichment doc
trine. 
The common count in an action of assumpsit for work 
and labor, founded on an implied assumpsit or promise 
on the part of the defendant to pay the plaintiff as much 
as he reasonably deserved to have for his labor. 3 
Bl.Comm. 161. It refers to class of obligations imposed 
by law, without regard to intention or assent of parties 
bound, for reasons dictated by reason and justice; such 
obligations not being contracts though form of action is 
contract, Carpenter v. Josey Oil Co., C.C.A.Okl., 26 F.2d 
442, 443; and, amount of recovery being only the rea
sonable value of the services rendered regardless of any 
agreement as to value, Smith v. Bliss, 44 Cal.App.2d 171, 
112 P.2d 30, 33. 
Quantum tenens domino ex homagio, tantum domi
nus tenenti ex dominio debet prreter solam reveren
tiam; mutua debet esse dominii et homagii fidelita
tis connexio Ikwont�m ten�nz dom�now eks 
(h)�meyj(iy)ow, trent�m dom�n�s t�nentay eks 
d�min(i)yow deb�t priyt�r sowbm rev�rensh(iy)�m; 
myuwtyuw� deb�t esiy d�miniyay et (h)�meyjiyay 
f�del�teyt�s k�neksh(iy)ow I. As much as the tenant by 
his homage owes to his lord, so much is the lord, by his

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QUANTUM VALEBANT 
lordship, indebted to the tenant, except reverence alone; 
the tie of dominion and of homage ought to be mutual. 
Quantum valebant Ikwont;;,m v;;,liybrent/. As much as 
they were worth. The common count in an action of 
assumpsit for goods sold and delivered, founded on an 
implied assumpsit or promise, on the part of the defen
dant, to pay the plaintiff as much as the goods were 
reasonably worth. 
Quarantine. A period of time during which a vessel, 
coming from a place where a contagious or infectious 
disease is prevalent, is detained by authority in the 
harbor of her port of destination, or at a station near it, 
without being permitted to land or to discharge her crew 
or passengers. Quarantine is said to have been first 
established at Venice in 1484. 
Isolation of person afflicted with contagious disease. 
The keeping of persons, when suspected of having con
tracted or having been exposed to an infectious disease, 
out of a community, or to confine them to given place 
therein, and to prevent intercourse between them and 
people generally of the community. Application of Hal
ko, 246 Cal.App.2d 553, 54 Cal.Rptr. 661, 664. 
A provision or interest given in law to the widow in 
her husband's estate, such as the privilege of occupying 
the mansion house and curtilage without charge until 
her dower is assigned, and technically is a dower right, 
or more broadly is a part of the dower estate. 
Quare Ikweriy Ikwohriy I. Lat. Wherefore; for what 
reason; on what account. Used in the Latin form of 
several common-law writs. 
Quare clausum fregit Ikweriy kloz;;,m friyj;;,t/. Lat. 
Wherefore he broke the close. That species of the 
action of trespass which has for its object the recovery of 
damages for an unlawful entry upon another's land is 
termed "trespass quare clausum fregit;" "breaking a 
close" being the technical expression for an unlawful 
entry upon land. The language of the declaration in 
this form of action is "that the defendant, with force and 
arms, broke and entered the close" of the plaintiff. The 
phrase is often abbreviated to "qu. cl. fr." or "q.c.f." 
Quare ejecit infra terminum Ikweriy ;;,jiys;;,t infr;;, 
t�rm;;,n;;,m/. Wherefore he ejected within the term. In 
old practice, a writ which lay for a lessee where he was 
ejected before the expiration of his term, in cases where 
the wrong-doer or ejector was not himself in possession 
of the lands, but his feoffee or another claiming under 
him. 3 Bl.Comm. 199, 206. 
Quare impedit Ikweriy impiyd;;,t/. Wherefore he hin
ders. In old English practice, a writ or action which lay 
for the patron of an advowson, where he had been 
disturbed in his right of patronage; so called from the 
emphatic words of the old form, by which the disturber 
was summoned to answer why he hinders the plaintiff. 
3 Bl.Comm. 246, 248. 
Quare incumbravit Ikweriy ink;;,mbreyv;;,t/. In old 
English law, a writ which lay against a bishop who, 
within six months after the vacation of a benefice, 
conferred it on his clerk, while two others were contend-
1244 
ing at law for the right of presentation, calling upon him 
to show cause why he had incumbered the church. 
Abolished by 3 & 4 Wm. IV, C. 27. 
Quare intrusit Ikweriy intruwz;;,t/. In old English law, 
a writ that formerly lay where the lord proffered a 
suitable marriage to his ward, who rejected it, and 
entered into the land, and married another, the value of 
his marriage not being satisfied to the lord. Abolished 
by 12 Car. II, C. 24. 
Quare non permittit Ikweriy non p;;,rmit;;,t/. An an
cient writ, which lay for one who had a right to present 
to a church for a turn against the proprietary. 
Quarentena terrre Ikwor;;,ntiyn;;, tehriy I. A furlong. 
Quare obstruxit Ikweriy ;;,bstr�ks;;,t/. Wherefore he ob
structed. In old English practice, a writ which lay for 
one who, having a liberty to pass through his neighbor's 
ground, could not enjoy his right because the owner had 
so obstructed it. 
Quarrel. An altercation, an angry dispute, an exchange 
of recriminations, taunts, threats or accusations between 
two persons. 
Quart. A liquid measure, containing one-fourth part of a 
gallon. 
Quarta divi pii Ikword;;, dayvay payay/. In Roman law, 
that portion of a testator's estate which he was required 
by law to leave to a child whom he had adopted and 
afterwards emancipated or unjustly disinherited, being 
one-fourth of his property. 
Quarta falcidia Ikword;;, folsidiy;;,/. In Roman law, that 
portion of a testator's estate which, by the Falcidian law, 
was required to be left to the heir, amounting to at least 
one-fourth. 
Quarter. The fourth part of anything, especially of a 
year. A quarter section (q.v.) of land. Stations, build
ings, lodgings, etc., of military personnel (usually re
ferred to as "quarters". 
Quarter-day. The four days in the year upon which, by 
law or custom, moneys payable in quarter-yearly install
ments are collectible (payable). 
Quarter-eagle. A gold coin of the United States, of the 
value of two and a half dollars. 
Quartering. In old English criminal law, the dividing a 
criminal's body into quarters, after execution. A part of 
the punishment of high treason. 4 Bl.Comm. 93. 
Furnishing of living quarters to military personnel. 
Quarterization. Quartering of criminals. 
Quarterly. Quarter yearly; once in a quarter year. 
Quarterly report. An abbreviated form of a company's 
annual report, issued every three months between annu
al reports; it includes an unaudited balance sheet, in
come statement, statement of changes in financial posi
tion and a narrative of the business operations for the 
quarter; an interim report. 
Quarter seal. See Seal.

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1245 
Quarter section. The quarter of a section of land ac
cording to the divisions of the government survey, laid 
off by dividing the section into four equal parts by 
north-and-south and east-and-west lines, and containing 
160 acres. A quarter of a square mile of land. Amount 
of land originally granted to homesteader. 
Quarter session courts. Courts formerly established in 
some of the states, to be holden four times in the year, 
invested with criminal jurisdiction, usually of offenses 
less than felony, and sometimes with the charge of 
certain administrative matters, such as the care of pub
lic roads and bridges. 
In England, all quarter session courts were abolished 
by The Courts Act of 1971, with the jurisdiction of such 
transferred to the Crown Court (q. v.). 
Quarters of coverage. Social Security benefits are de
pendent on number of yearly quarters in which person 
made contributions (i.e. payments) into social security 
fund. 
Quarto die post Ikwortow dayiy powst/. Lat. On the 
fourth day after. Appearance day, in the former Eng
lish practice, the defendant being allowed four days, 
inclusive, from the return of the writ, to make his 
appearance. 
Quash Ikwosh/. To overthrow; to abate; to vacate; to 
annul; to make void; e.g. to quash an indictment. 
Quasi Ikweysay Ikwoziy I. Lat. As if; almost as it were; 
analogous to. This term is used in legal phraseology to 
indicate that one subject resembles another, with which 
it is compared, in certain characteristics, but that there 
are intrinsic and material differences between them. 
Cannon v. Miller, 22 Wash.2d 227, 155 P.2d 500, 503, 
507. A term used to mark a resemblance, and supposes 
a difference beween two objects. It is exclusively a term 
of classification. It implies that conception to which it 
serves as index is connected with conception with which 
comparison is instituted by strong superficial analogy or 
resemblance. Moreover it negatives idea of identity, but 
points out that the conceptions are sufficiently similar 
for one to be classed as the equal of the other. South 
Discount Foods, Inc. v. Retail Clerks Union Local 1552, 
Com. PL, 14 Ohio Misc. 188, 235 N.E.2d 143, 147. It is 
often prefixed to English words, implying mere appear
ance or want of reality or having some resemblance to 
given thing. 
As to quasi Affinity; Contract; Corporation; Crime; Del
ict; Deposit; Derelict; Easement; Entail; Fee; In rem; 
Municipal corporation; Offense; Partner; Personalty; Pos
session; Posthumous child; Purchase; Realty; Tenant; 
Tort; Traditio; Trustee; and Usufruct, see those titles. 
Quasi admission. An act or utterance, usually extraju
dicial, which creates an inconsistency with and discred
its to a greater or lesser degree, present claim or other 
evidence of person creating the inconsistency, and per
son who enacted or uttered it may nevertheless disprove 
its correctness by introduction of other evidence. Suth
erland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024. 
QUASI.TllADITIO 
Quasi contract. An obligation which law creates in 
absence of agreement; it is invoked by cQurts where 
there is unjust enrichment. Andrews v. O'Grady, 44 
Misc.2d 28, 252 N.Y.S.2d 814, 817. Sometimes referred 
to as implied-in-Iaw contracts (as a legal fiction) to 
distinguish them from implied-in-fact contracts (volun
tary agreements inferred from the parties' conduct). 
Function of "quasi contract" is to raise obligation in law 
where in fact the parties made no promise, and it is not 
based on apparent intention of the parties. Fink v. 
Goodson-Todman Enterprises, Limited, 9 C.A.3d 996, 88 
CaLRptr. 679, 690. See also Contract. 
Quasi estoppel. This doctrine is properly invoked 
against a person asserting a claim inconsistent with a 
position previously taken by him, with knowledge of the 
facts and his rights, to the detriment of the person 
seeking application of the doctrine. Evans v. Idaho 
State Tax Commission, 97 Idaho 148, 540 P.2d 810, 812. 
"Equitable estoppel" and "estoppel in pais" are con
vertible terms embracing "quasi estoppel" and embody 
doctrine that one may not repudiate an act done or 
position assumed by him where such course would work 
injustice to another rightfully relying thereon. Brown 
v. Corn Exchange Nat. Bank & Trust Co., 136 N.J.Eq. 
430, 42 A.2d 474, 480. 
See Equitable estoppel. 
Quasi in rem jurisdiction. Type of jurisdiction of a 
court based on a person's interest in property within the 
jurisdiction of the court. Refers to proceedings that are 
brought against the defendant personally; yet it is the 
defendant's interest in the property that serves as the 
basis of the jurisdiction. There must be a connection 
involving minimum contact between the property and 
the subject matter of the action for a state to exercise 
quasi in rem jurisdiction. Shaffer v. Heitner, 433 U.S. 
186, 97 S.Ct. 2569, 53 L.Ed.2d 683. Quasi in rem pro
ceedings is generally defined as affecting only interest of 
particular persons in specific property and is distin
guished from proceedings in rem which determine inter
ests in specific property as against the whole world. 
Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 317. See 
also Jurisdiction. 
Quasi judicial. A term applied to the action, discretion, 
etc., of public administrative officers or bodies, who are 
required to investigate facts, or ascertain the existence 
of facts, hold hearings, weigh evidence, and draw conclu
sions from them, as a basis for their official action, and 
to exercise discretion of a judicial nature. 
Quasi judicial act. A judicial act performed by one not 
a judge. State Tax Commission of Utah v. Katsis, 90 
Utah 406, 62 P.2d 120, 123. 
Quasi-judicial power. The power of an administrative 
agency to adjudicate the rights of persons before it. 
Quasi-legislative power. The power of an administra
tive agency to engage in rule-making. 
Quasi-public corporation. See Corporation. 
Quasi-traditio Ikweysay tr�dish(iy)ow/. Lat. In civil 
law, a term used to designate that a person is in the use

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QUASI-TRADITIO 
of the property of another, which the latter suffers and 
does not oppose. It also signifies the act by which the 
right of property is ceded in a thing to a person who is 
in possession of it; as, if I loan a boat to Paul, and 
deliver it to him, and afterwards I sell him the boat, it is 
not requisite that he should deliver the boat to me to be 
again delivered to him: there is a quasi-tradition or 
delivery. 
Quater cousin. See Cousin. 
Quatuor pedibus currit Ikwotuwor ped�b�s k�hr�t/. 
Lat. It runs upon four feet; it runs upon all fours. See 
All-fours. 
Quean Ikwiyn/. A worthless woman; a strumpet. Ob
solete. 
Queen. A woman who possesses the sovereignty and 
royal power in a country under a monarchical form of 
government. The wife of a king. 
Queen regnant. In English law, a queen who holds the 
crown in her own right; as the first Queen Mary, Queen 
Elizabeth, Queen Anne, and Queen Victoria. 
For the titles and descriptions of various officers in 
the English legal system, called "Queen's Advocate," 
"Queen's Coroner," "Queen's Counsel," "Queen's Proc
tor," "Queen's Remembrancer," etc., during the reign of 
a female sovereign, see terms under King and also the 
following titles. 
Queen's bench. The English court of king's bench is so 
called during the reign of a queen. See King's bench. 
Queen's counsel. See King's counsel. 
Queen's evidence. See King's evidence. 
Queen's prison. A jail which used to be appropriated to 
the debtors and criminals confined under process or by 
authority of the superior courts at Westminster, the 
high court of admiralty, and also to persons imprisoned 
under the bankrupt law. 
Queen's proctor. See King's proctor. 
Que estate Ikwiy �steyt/. L. Fr. Whose estate. A term 
used in old pleading, particularly in claiming prescrip
tion, by which it was alleged that the plaintiff and those 
former owners whose estate he had had immemorially 
exercised the right claimed. This was called "prescrib
ing in a que estate." 
Que est Ie mesme Ikwiy ey l� mem/. L. Fr. Which is 
the same. A term used in actions of trespass, etc. See 
Qure est eadem. 
Quemadmodum ad qurestionem facti non respondent 
judices, ita ad qurestionem juris non respondent 
juratores Ikwemredm�d�m red kwest(i)yown�m frektay 
non r�pond�nt juwd�siyz, ayt� red kwest(i)yown�m jur�s 
non r�spond�nt jur�toriyz/. In the same manner that 
judges do not answer to questions of fact, so jurors do 
not answer to questions of law. 
Quem reditum reddit Ikwem red�t�m red�t/. L. Lat. 
An old English writ which lay where a rent-charge or 
other rent which was not rent service was granted by 
1246 
fine holding of the grantor. If the tenant would not 
attorn, then the grantee might have had this writ. 
Querela Ikw�riyl�/. Lat. An action preferred in any 
court of justice. The plaintiff was called "querens," or 
complainant and his brief, complaint, or declaration was 
called "querela." 
Querela coram rege a concillo discutienda et termi
nanda Ikw�riyl� kor�m riyjiy ey k�nsil(i)yow 
d�sk�shiyend� et t�rm�nrend�/. A writ by which one is 
called to justify a complaint of a trespass made to the 
king himself, before the king and his council. 
Querela inofficiosi testamenti Ikw�riyl� in�fishiyowsay 
test�mentay/. Lat. In the civil law, a species of action 
allowed to a child who had been unjustly disinherited, to 
set aside the will, founded on the presumption of law, in 
such cases, that the parent was not in his right mind. 
Querens Ikwir�nz/. Lat. A plaintiff; complainant; in
quirer. 
Querulous Ikwehr(y)�l�s/. Apt to find fault; habitually 
complaining; disposed to murmur. Expressing, or sug
gestive of complaint; fretful; whining. 
Questa Ikwest�/. A quest; an inquest, inquisition, or 
inquiry, upon the oaths of an impaneled jury. 
Question. A subject or point of investigation, examina
tion or debate; theme of inquiry; problem; matter to be 
inquired into, as subject matter of civil or criminal 
discovery. A point on which the parties are not agreed, 
and which is submitted to the decision of a judge and 
jury. See also Issue. 
An interrogation put to a witness, for the purpose of 
having him declare the truth of certain facts as far as he 
knows them; e.g. direct or cross examination of witness 
at trial. See also Discovery; Interrogation. 
Categorical question. One inviting a distinct and posi
tive statement of fact; one which can be answered by 
"yes" or "no." In the plural, a series of questions, 
covering a particular subject-matter, arranged in a sys
tematic and consecutive order. 
Federal question. See Federal. 
Hypothetical question. See that title. 
Judicial question. See Judicial. 
Leading question. See that title. 
Political question. See Political. 
Question of fact. An issue involving the resolution of a 
factual dispute and hence within the province of the 
jury in contrast to a question of law. 
Question of law. Question concerning legal effect to be 
given an undisputed set of facts. An issue which in
volves the application or interpretation of a law and 
hence within the province of the judge and not the jury. 
Questman I kwestmren I , or questmonger IkwestmOIJ
g�r I. In old English law, a starter of lawsuits, or 
prosecutions; also a person chosen to inquire into abus
es, especially such as relate to weights and measures; 
also a church-warden.

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1247 
Questores parricidii Ikwestoriyz pcer;)s8ydiyay I. Lat. 
In Roman law, certain officers, two in number, who 
were deputed by th e comitia, as a kind of commission, to 
search out and try all cases of parricide and murder. 
They were probably appointed annually. 
Questus est nobis Ikwest;)s est nowb;)sl. Lat. A writ of 
nuisance, which, by 15 Edw. I, lay against him to whom 
a house or other thing that caused a nuisance descended 
or was alienated; whereas, before that statute the action 
lay only against him who first levied or caused the 
nuisance to the damage of his neighbor. 
Quia I kway;) I . Lat. Because; whereas; inasmuch as. 
Qui abjurat regnum amittit regnum, sed non regem; 
patriam, sed non patrem patrice Ikway ;)bjur;)t 
regn;)m, eymit;)t regnam, sed non riyj;)m; pretriy;)m, sed 
non pretr;)m pretriyiy I. He who abjures the realm leaves 
the realm, but not the king; the country, but not the 
father of the country. 
Qui accusat integrce famce sit, et non criminosus 
Ikway ;)kyUwz�t int;)griy feymiy sit, et non 
krim�nows�sl. Let him who accuses be of clear fame, 
and not criminaL 
Qui acquirit sibi acquirit bceredibus Ikway �kwrayr�t 
sway �kwayr�t h�riyd�b�s/. He who acquires for him
self acquires for his heirs. 
Quia datum est nobis intelligi Ikway� deyt�m est 
nowb�s intel�jay I. Because it is given to us to under
stand. Formal words in old writs. 
Qui adimit medium dirimit finem Ikway red�m�t 
miyd(i)y�m dihr�m�t fayn�m/. He who takes away the 
mean destroys the end. He that deprives a man of the 
mean by which he ought to come to a thing deprives him 
of the thing itself. 
Quia emptores Ikway� em(p)toriyz/. Lat. "Because the 
purchasers." The title of the statute of Westm. 3, (18 
Edw. I, c. 1). This statute took from the tenants of 
common lords the feudal liberty they claimed of dispos
ing of part of their lands to hold of themselves, and, 
instead of it, gave them a general liberty to sell all or 
any part, to hold of the next superior lord, which they 
could not have done before without consent. The effect 
of this statute was twofold: (1) To facilitate the alien
ation of fee-simple estates; and (2) to put an end to the 
creation of any new manors, i.e., tenancies in fee-simple 
of a subject. 
Quia erronice emanavit Ikway� �rown�siy em�neyv�t/. 
Because it issued erroneously, or through mistake. A 
term in old English practice. 
Qui aliquid statuerit, parte inaudita altera cequum 
licet dixerit, baud cequum fecerit Ikway rel�kwid 
st�tyUw�r�t, partiy inod�t� 6It�r� iykw�m lis�t diks�r�t, 
h6d iykw�m fes�r�t/. He who determines any matter 
without hearing both sides, though he may have decided 
right, has not done justice. 
Qui alterius jure utitur, eodem jure uti debet Ikway 
oltiriy�s juriy yuwt�t�r, iy6wd�m juriy yuwtay deb�t/. 
QUICK WI'tH CHILD 
He who uses the right of another ought to use the same 
right. 
Quia non refert aut quis intentionem suam declaret, 
verbis, aut rebus ipsis vel factis Ikway� non rer�rt ot 
kwis intenshiy6wn�m s(y)uw�m d�kler�t, v:}rb�s, ot 
riyb�s ips�s vel frekt�sl. It is immaterial whether the 
intention be collected from the words used or the acts 
done. Tocci v. Nowfall, 220 N.C. 550, 18 S.E.2d 225, 228. 
Qui approbat non reprobat Ikway repr�b�t non 
repr�b�t/. He who approbates does not reprobate, [i.e., 
he cannot both accept and reject the same thing]. 
Quia timet Ikway� taym�t/. Lat. Because he fears or 
apprehends. In equity practice, the technical name of a 
bill filed by a party who seeks the aid of a court of 
equity, because he fears some future probable injury to 
his rights or interests, and relief granted must depend 
upon circumstances. 
Quibble. A cavilling or verbal objection. A slight diffi
culty raised without necessity or propriety. 
Qui bene distinguit bene docet Ikway biyniy 
d�stilJgw�t biyniy d6s�t/. He who distinguishes well 
teaches well. 
Qui bene interrogat bene docet Ikway biyniy 
intehr�g�t biyniy d6s�t/. He who questions well teaches 
well. Information or express averment may be effectu
ally conveyed in the way of interrogation. 
Qui cadit a syllaba cadit a tota causa Ikway kred�t ey 
sil�b� kred�t ey t6wt� k6z�/. He who fails in a syllable 
fails in his whole cause. 
Quick. Living; alive. See Quickening. 
Quick asset ratio. Ratio of cash, accounts receivable 
and marketable securities to current liabilities. Also 
called the "acid test." See also Acid ratio test. 
Quick assets. Liquid assets such as cash, marketable 
securities and accounts receivable which can be convert
ed into cash without delay. 
Quick child. One that has developed so that it moves 
within the mother's womb. State v. Timm, 244 Wis. 
508, 12 N.W.2d 670, 671. See also Quickening; Viable 
child. 
Quickening. The first motion of the fetus in the womb 
felt by the mother, occurring usually about the middle 
of the term of pregnancy. 
Quick with child. Having conceived. 
Qui concedit aliquid, concedere videtur et id sine 
quo concessio est irrita, sine quo res ipsa esse non 
potuit Ikway k�nsiyd�t rel�kwid, k�nsiyd�riy v�diyt(y)�r 
et id sayniy kwow k�nsesh(iy)ow est ihr�t(y)�, sayniy 
kwow riyz ips� esiy non p6t(y)uw�t/. He who concedes 
anything is considered as conceding that without which 
his concession would be void, without which the thing 
itself could not exist. 
Qui concedit aliquid concedit omne id sine quo con
cessio est irrita Ikway k�nsiyd�t rel�kwid k�nsiyd�t 
6mniy id sayniy kwow k�nsesh(iy)ow est ihr�t�/. He

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QUI CONFIRMAT NIHIL DAT 
who grants anything grants everything without which 
the grant is fruitless. 
Qui confirmat nihil dat Ikway kanf�rmat nay(h)al d,H/. 
He who confirms does not give. 
Qui contemnit prreceptum contemnit prrecipientem 
Ikway kantemnat praseptam kantemnat prasipiyen
tam/. He who contemns [contemptuously treats] a com
mand contemns the party who gives it. 
Quicquid acquiritur servo acquiritur domino Ikwik
wid akwayratar s�rvow akwayratar domanow I. Whatev
er is acquired by the servant is acquired for the master. 
Whatever rights are acquired by an agent are acquired 
for his principal. 
Quicquid demonstra1re rei additur satis demonstratre 
frustra est Ikwikwid demanstreytiy riyay redatar sretas 
demanstreydiy fr�stra est!. Whatever is added to dem
onstrate anything already sufficiently demonstrated is 
surplusage. 
Quicquid est contra normam recti est injuria Ikwik
wid est kontra normam rektay est injuriya/. Whatever 
is against the rule of right is a wrong. 
Quicquid in excessu actum est, lege prohibetur 
Ikwikwid in akses(y)uw rektam est, liyjiy 
prow(h)abiytar I. Whatever is done in excess is prohibit
ed by law. 
Quicquid judicis auctoritati subjicitur novitati non 
subjicitur Ikwikwid juwdasas oktorateytay s;)bjisatar 
nowvateytay non s;)bjisatar I. Whatever is subject to the 
authority of a judge is not subject to innovation. 
Quicquid plantatur solo, solo cedit Ikwikwid 
plrenteytar sowlow, sowlow siydatl. Whatever is affixed 
to the soil belongs to the soil. 
Quicquid recipitur, recipitur secundum modum reci
pientis Ikwikwid rasipatar, rasipatar sak�ndam mowdam 
rasipiyentasl. Whatever is received is received accord
ing to the intention of the recipient. 
Quicquid solvitur, solvitur secundum modum solven
tis; quicquid recipitur, recipitur secundum modum 
recipientis Ikwikwid solvatar, solvatar sak�ndam 
mowdam solventas; kwikwid rasipatar, rasipatar 
sak�ndam mowdam rasipiyentasl. Whatever money is 
paid, is paid according to the direction of the payer; 
whatever money is received, is received according to 
that of the recipient. 
Qui cum alio contrahit, vel est, vel esse debet non 
ignarus conditionis ejus Ikway k;)m eyl(i)yow 
kantrey(h)at, vel est, vel esiy debat non igneras 
kandishiyownas iyjasl. He who contracts with another 
either is or ought to be not ignorant of his condition. 
Quicunque habet jurisdictionem ordinariam est illius 
loci ordinarius Ikwayk�1Jkwiy heybat jurasdik
shiyownam ordaneriyam est ilayas lowsay ordaneriyasl. 
Whoever has an ordinary jurisdiction is ordinary of that 
place. 
Quicunque jussu judicis aliquid fecerit non videtur 
dolo malo fecisse, quia parere necesse est 
1248 
Ikwayk�1Jkwiy j�s(y)uw juwdasas relakwid fesarat non 
vadiytar dow-low mrelow fasisiy, kwaya paririy nasesiy 
est/. Whoever does anything by the command of a 
judge is not reckoned to have done it with an evil intent, 
because it is necessary to obey. 
Quidam I kwaydam I . Lat. Somebody. This term is 
used in the French law to designate a person whose 
name is not known. 
Qui dat finem, dat media ad finem necessaria Ikwliy 
dret faynam, dret miyd(i)ya ,M faynam nesaseriya/. He 
who gives an end gives the means to that end. 
Qui destruit medium destruit finem Ikwliy destruwat 
miyd(i)yam destruwat faynam/. He who destroys the 
mean destroys the end. 
Quid juris clamat Ikwid juras klremat!. In old English 
practice, a writ which lay for the grantee of a reversion 
or remainder, where the particular tenant would not 
attorn, for the purpose of compelling him. 
Qui doit inheriter al pere doit inheriter al fitz Ikwliy 
doyt inheratar reI per doyt anheritar reI fits I . He who 
would have been heir to the father shall be heir to the 
son. 
Quid pro quo Ikwid prow kwow I. What for what; 
something for something. Used in law for the giving 
one valuable thing for another. It is nothing more than 
the mutual consideration which passes between the par
ties to a contract, and which renders it valid and bind
ing. 
Quidquid enim sive dolo et culpa venditoris accidit 
in eo venditor securus est Ikwidkwid en am sayviy 
dowlow et k�lpa vendatoras reksadat in iyow vendatar 
sakyuras est!. For concerning anything which occurs 
without deceit and wrong on the part of the vendor, the 
vendor is secure. 
Quid sit jus, et in quo consistit injuria, legis est 
definire Ikwid sit j�s, et in kwow kansistat injuriya, 
liyjas est dManayriy I. What constitutes right, and what 
injury, it is the business of the law to declare. 
Quid turpi ex causa promissum est non valet Ikwid 
t�rpay eks koza pramisam est non vrelat/. A promise 
arising out of immoral circumstances is invalid. 
Quiet, v. To pacify; to render secure or unassailable by 
the removal of disquieting causes or disputes. 
Quiet, adj. Unmolested; tranquil; free from interfer
ence or disturbance. 
Quiet enjoyment. A covenant, usually inserted in leases 
and conveyances on the part of the grantor, promising 
that the tenant or grantee shall enjoy the possession and 
use of the premises in peace and without disturbance. 
In connection with the landlord-tenant relationship, the 
covenant of quiet enjoyment protects the tenant's right 
to freedom from serious interferences with his or her 
tenancy. Manzaro v. McCann, 401 Mass. 880, 519 
N.E.2d 1337, 1341. (Ringing for more than one day of 
smoke alarms in an apartment building could be suffi
cient interference with the tenant's quiet enjoyment of

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1249 
leased premises to justify relief against the landlord.) 
See, e.g., Mass.G.L. c. 186, § 14. 
Quieta non movere Ikwayiyta non maviriy/. Not to 
unsettle things which are established. 
Quietare Ikwayateriy I. L. Lat. To quit, acquit, dis
charge, or save harmless. A formal word in old deeds of 
donation and other conveyances. 
Quiete clamantia Ikwayiytiy klamrensh(iy)a/. L. Lat. 
In old English law, quitclaim. 
Quiete clamare Ikwayiytiy klameriy I. L. Lat. To quit
claim or renounce all pretensions of right and title. 
Quiet title action. A proceeding to establish the plain
tiffs title to land by bringing into court an adverse 
claimant and there compelling him either to establish 
his claim or be forever after estopped from asserting it. 
See also Action to quiet title; Cloud on title. 
Quietus Ikwayiytas/. In old English law, quit; acquit
ted; discharged. A word used by the clerk of the pipe, 
and auditors in the exchequer, in their acquittances or 
discharges given to accountants; usually concluding 
with an abinde recessit quietus (hath gone quit thereof), 
which was called a "quietus est." 
A final discharge or acquittance, as from a debt or 
obligation; that which silences claims. State ex reI. 
Jones v. Edwards, 203 La. 1039, 14 So.2d 829, 834. 
Quietus redditus Ikwayiytas redatasl. In old English 
law, quitrent. See Quit rent. 
Qui evertit causam, evertit causatum futurum Ikwliy 
av;}rtat kozam, av;}rtat kozeytam fyuwtyuram/. He who 
overthrows the cause overthrows its future effects. 
Qui ex damnato coitu nascuntur inter liberos non 
computentur Ikwliy eks dremneytow kowatyuw nres
k;}ntar intar libarows non kompyuwtentar/. Those who 
are born of an unlawful intercourse are not reckoned 
among the children. 
Qui facit id quod plus est, facit id quod minus est, 
sed non convertitur Ikway feysat id kwod pl;}s est, 
feysat id kwod mliynas est, sed non kanv;}rtatar I. He 
who does that which is more does that which is less, but 
not vice versa. 
Qui facit per alium facit per se Ikway feysat p;}r 
eyl(i)yam feysat p;}r siy I. He who acts through another 
acts himself [i.e., the acts of an agent are the acts of the 
principal]. 
Qui habet jurisdictionem absolvendi, habet jurisdic
tionem ligandi Ikway heybat jurasdikshiyownam 
rebsolvenday, hrebat jurasdikshiyownam bgrenday/. He 
who has jurisdiction to loosen, has jurisdiction to bind. 
Applied to writs of prohibition and consultation, as 
resting on a similar foundation. 
Qui hreret in litera hreret in cortice Ikway hirat in 
litara hirat in kortasiy I. He who considers merely the 
letter of an instrument goes but skin deep into its 
meaning. 
QUI MELIUS PROBAT MELIUS HABET 
Qui ignorat quantum solvere debeat, non potest im
probus videre Ikwliy ignorat kwontam solvariy debiyat, 
non powtast improwbas vidiriy I. He who does not know 
what he ought to pay, does not want probity in not 
paying. 
Qui improvide Ikwliy improvadiy I. A supersedeas 
granted where a writ was erroneously sued out or misa
warded. 
Qui in jus dominiumve alterius succedit jure ejus uti 
debet Ikwliy in j;}S daminiy;}mviy oltarliyas saksiydat 
juriy iyjas yuwtay debat/. He who succeeds to the right 
or property of another ought to use his right, [i.e., holds 
it subject to the same rights and liabilities as attached to 
it in the hands of the assignor]. 
Qui in utero est pro jam nato habetur, quoties de 
ejus commodo qureritur Ikwliy in yuwtarow est prow 
jrem neytow habiytar, kwowshiyiyz diy iyjas komadow 
kwiratar/. He who is in the womb is held as already 
born, whenever a question arises for his benefit. 
Qui jure suo utitur, nemini facit injuriam Ikway juriy 
s(y)uwow yuwt;}t;}r, nem;}nay feys;}t injuriy;}mI . He who 
uses his legal rights harms no one. 
Qui jussu judicis aliquod fecerit non videtur dolo 
malo fecisse, quia parere necesse est Ikway j;}s(y)uw 
juwd;}sas rel;}kwod fesarat non v;}diyt;}r dowlow mrelow 
f;}sisiy, kwliy;} paririy n;}sesiy est/. Where a person does 
an act by command of one exercising judicial authority, 
the law will not suppose that he acted from any wrong
ful or improper motive, because it was his bounden duty 
to obey. 
Quilibet potest renunciare juri pro se introducto 
Ikwliybb;}t powt;}st ran;}nshiyeriy juray prow siy 
ind�ktow I. Every one may renounce or relinquish a 
right introduced for his own benefit. 
Qui male agit odit lucem Ikway mreliy eyjat owtat 
l(y)uws;}m/. He who acts badly hates the light. 
Qui mandat ipse fecissi videtur Ikway mrend;}t ipsiy 
f;}sisay v;}diyt;}r/. He who commands [a thing to be 
done] is held to have done it himself. 
Qui melius probat melius habet Ikway miyl(i)y;}s 
prowb;}t miyl(i)y;}s heyb;}t/. He who proves most recov
ers most. 
Qui molitur insidias in patriam id facit quod insanus 
nauta perforans navem in qua vehitur Ikway molatar 
insidiy;}s in pretriyam id feysat kwod inseyn;}s noda 
p�rf;}rren(d)z neyv;}m in kwey viy(h)atar/. He who be
trays his country is like the insane sailor who bores a 
hole in the ship which carries him. 
Qui nascitur sine legitimo matrimonio, matrem se
quitur Ikway nres;}t;}r sliyniy bjit;}mow 
mretr;}mown(i)yow, mretr;}m sekw;}d;}r/. He who is born 
out of lawful matrimony follows the condition of the 
mother. 
Qui non cadunt in constantem virum vani timores 
sunt restimandi Ikwliy non kredant in k;}nstrentam

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QUI NON HABET, ILLE NON DAT 
vayr�m veynay tim6riyz s;}nt est�mrenday/. Those fears 
are to be esteemed vain which do not affect a firm man. 
Qui non habet, ilIe non dat Ikway non heyb�t, iliy non 
dretl. He who has not, gives not. He who has nothing 
to give, gives nothing. A person cannot convey a right 
that is not in him. If a man grant that which is not his, 
the grant is void. 
Qui non habet in rere, luat in corpore, ne quis pecce
tur impune Ikway non heyb�t in eriy, l(y)uw�t in 
k6rp�riy, niy kwis p�ksiyt�r impyuwniy/. He who can
not pay with his purse must suffer in his person, lest he 
who offends should go unpunished. 
Qui non habet potestatem aIienandi habet necessita
tem retinendi Ikway non heyb�t powt�stedt�m reli
y�nrenday heyb�t n�ses�teyt�m ret�nenday I. He who 
has not the power of alienating is obliged to retain. 
Qui non improbat, approbat Ikway non impr�b�t, 
repr�b�t/. He who does not blame, approves. 
Qui non Iibere veritatem pronunciat proditor est 
veritatis Ikway non lib�riy vehr�teyt�m pr�n,)nshiy�t 
pr6wd�t�r est vehr�teyt�sl. He who does not freely 
speak the truth is a betrayer of the truth. 
Qui non negat fJ!i.etur Ikway non neg�t fretiyt�r I. He 
who does not deny, admits. A well-known rule of plead
ing. 
Qui non obstat quod obstare potest, facere videtur 
Ikway non 6bstret kw6d obsteriy p6wt�st, fres�riy 
v�diyt�r/. He who does not prevent [a thing] which he 
can prevent, is considered to do [as doing] it. 
Qui non prohibet id quod prohibere potest assentire 
videtur Ikway non pr6w(h)�b�d id kwod prow
(h)�biriy p6wt�st res�ntayriy v�diyt�r I. He who does not 
forbid what he is able to prevent, is considered to assent. 
Qui non propulsat injuriam quando potest, infert 
Ikway non pr�p,)ls�t �njur(i)y�m kw6ndow p6wt�st, 
inf�rt/. He who does not repel an injury when he can, 
induces it. 
Quinquepartite Ikwinkw�partayt/. Consisting of five 
parts; divided into five parts. 
Quintal, or kintal Ikwint�lI. A weight of one hundred 
pounds. 
Quinto exactus Ikwintow �gzrekt�sl. In old English 
practice, called or exacted the fifth time. A return 
made by the sheriff, after a defendant had been pro
claimed, required, or exacted in five county courts suc
cessively, and failed to appear, upon which he was 
outlawed by the coroners of the county. 3 Bl.Comm. 
283. 
Qui obstruit aditum, destruit commodum Ikwily 6b
struw�d red�t�m, destruw�t k6m�d�m/. He who ob
structs a way, passage, or entrance destroys a benefit or 
convenience. He who prevents another from entering 
upon land destroys the benefit which he has from· it. 
Qui omne dicit nihil excludit Ikwily 6mniy dis�t 
nay(h);l ;kskl(y)uwd;t/. He who says all excludes noth
ing. 
1250 
Qui parcit nocentibus innocentes punit Ikwily pars�t 
n�sent�b�s in�sentiyz pyuwn�t/. He who spares the 
guilty punishes the innocent. 
Qui peccat ebrius luat sobrius Ikwily pek�t iybriy�s 
l(y)uw�t s6wbriy�s/. He who sins when drunk shall be 
punished when sober. 
Qui per aIium facit per seipsum facere videtur Ikway 
p;}r eyl(i)y�m feys�t p;}r siyips�m fres�riy v�diyt�r/. He 
who does a thing by an agent is considered as doing it 
himself. 
Qui per fraudem agit frustra agit Ikway p;}r fr6d�m 
eyj�t fr,)str� eyj�t/. What a man does fraudulently he 
does in vain. 
Qui potest et debet vetare, jubet Ikwily p6wt�st et 
deb;t v�teriy, juwb�t/. He who can and ought to forbid 
a thing [if he do not forbid it] directs it. 
Qui primum peccat ilie facit rixam Ikwily praym�m 
pek�t iliy feys�t riks�m/. He who sins first makes the 
strife. 
Qui prior est tempore potior est jure Ikwily pray�r est 
temp�riy p6wsh(iy)�r est juriy I. He who is before in 
time is the better in right. Priority in time gives 
preference in law. A maxim of very extensive applica
tion, both at law and in equity. 
Qui pro me aliquid facit mihi fecisse videtur Ikway 
prow miy rel�kwid feys�t may(h)ay f�sisiy v�diyt�r I. He 
who does anything for me appears to do it to me. 
Qui providet sibi providet hreredibus Ikwily pr6v�d�t 
sibay pr6v�d�t h�red�b�s/. He who provides for himself 
provides for his heirs. 
Qui rationem in omnibus qurerunt rationem subver
tunt Ikwily rreshiy6wn�m in 6mn�b�s kwir�nt rre
shiy6wn�m s�bv�rt�ntl. They who seek a reason for 
everything subvert reason. 
Quiritarian ownership Ikwihr�ter(i)y�n 6wn�rship/. In 
Roman law, ownership held by a title recognized by the 
municipal law, in an object also recognized by that law, 
and in the strict character of a Roman citizen. 
Qui sciens solvit indebitum donandi consilio id vide
tur fecisse Ikwily say�nz s61v�t indeb�t�m d�nrenday 
k�nsil(i)yow id v�diyt�r f�sisiy I. One who knowingly 
pays what is not due is supposed to have done it with 
the intention of making a gift. 
Qui semel actionem renunciaverit ampIius repetere 
non potest Ikwily sem�l rekshiy6wn�m r�n;}nshiyeyv;r�t 
rempliy�s r�pet�riy non p6wt�st/. He who has once 
relinquished his action cannot bring it again. A rule 
descriptive of the effect of a retraxit an� nolle prosequi. 
Qui semel est malus, semper prresumitur esse malus 
in eodem genere Ikwily sem�l est mrel;s, semp�r 
pr�z(y)uwm;t�r esiy mrel�s in iy6wd�m jen;riy/. He 
who is once criminal is presumed to be always criminal 
in the same kind or way.

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1251 
Qui sentit commodum sentire debet et onus Ikway 
sEmt:;)t kom:;)d:;)m sentayriy deb:;)t et own:;)s/. He who 
receives the advantage ought also to suffer the burden. 
Qui sentit onus sentire debet et commodum Ikway 
sent:;)t own:;)s sentayriy deb:;)t et kom:;)d:;)m/. He who 
bears the burden of a thing ought also to experience the 
advantage arising from it. 
Quisquis erit qui vult juris-consultus haberi conti
nuet studium, velit a quocunque doceri Ikwiskwis 
ehr:;)t kway v�lt jur:;)sk:;)ns�lt:;)s h:;)biray k:;)ntinyuw:;)t 
st(y)uwd(i)y:;)m, vel:;)t ey kwowk�1Jkwiy dosiray/. Whoev
er wishes to be a juris-consult, let him continually study, 
and desire to be taught by every one. 
Quisquis prresumitur bonus; et semper in dubiis pro 
reo respondendum Ikwiskwis pr:;)z(y)uwm:;)t:;)r bown:;)s; 
et semp:;)r in d(y)uwbiy:;)s prow riyow r:;)spondend:;)m/. 
Every one is presumed good; and in doubtful cases the 
resolution should be ever for the accused. 
Quit, v. To leave; remove from; surrender possession of; 
as when a tenant "quits" the premises or receives a 
"notice to quit." 
Notice to quit. A written notice given by a landlord to 
his tenant, stating that the former desires to repossess 
himself of the demised premises, and that the latter is 
required to quit and remove from the same at a time 
designated, either at the expiration of the term, if the 
tenant is in under a lease, or immediately, if the tenan
cy is at will or by sufferance. 
Quit, adj. Clear; discharged; free; also spoken of per
sons absolved or acquitted of a charge. 
Qui tacet, consentire videtur Ikway tcoes:;)t, konsentay
riy v:;)diyt:;)r/. He who is silent is supposed to consent. 
The silence of a party implies his consent. 
Qui tacet consentire videtur, ubi tractatur de ejus 
commodo Ikway tres:;)t konsentayriy v:;)diyt:;)r, yuwbay 
trrektiyt:;)r diy iyj:;)s kom:;)dow/. He who is silent is 
considered as assenting, when his interest is at stake. 
Qui tacet non utique fatetur, sed tamen verum est 
eum non negare Ikway tres:;)t non y\iwt:;)kwiy f:;)tiyt:;)r, 
sed trem:;)n vir:;)m est iy:;)m non n:;)geriy I. He who is 
silent does not indeed confess, but yet it is true that he 
does not deny. 
Qui tam action Ikway trem reksh:;)n/. Lat. "Qui tam" is 
abbreviation of Latin phrase "qui tam pro domino rege 
quam pro si ipso in hac parte sequitur" meaning "Who 
sues on behalf of the King as well as for himself." It is 
an action brought by an informer, under a statute which 
establishes a penalty for the commission or omission of a 
certain act, and provides that the same shall be recover
able in a civil action, part of the penalty to go to any 
person who will bring such action and the remainder to 
the state or some other institution. It is called a "qui 
tam action" because the plaintiff states that he sues as 
well for the state as for himself. U.S. v. Florida-Vander
bilt Development Corp., D.C.Fla., 326 F.Supp. 289, 290. 
See also False Claims Act; Whistle-blower Acts. 
QUO ANIMO 
Qui tardius solvit, minus solvit Ikway tardiy:;)s solv:;)t, 
mayn:;)s solv:;)t/. He who pays more tardily [than he 
ought] pays less [than he ought]. 
Quitclaim, v. In conveyancing, to release or relinquish a 
claim; to execute a deed of quitclaim. See Quitclaim, n. 
Quitclaim, n. A release or acquittance given to one man 
by another, in respect of any action that he has or might 
have against him. Also acquitting or giving up one's 
claim or title. 
Quitclaim deed. A deed of conveyance operating by 
way of release; that is, intended to pass any title, 
interest, or claim which the grantor may have in the 
premises, but not professing that such title is valid, nor 
containing any warranty or covenants for title. In a 
number of states, a deed which purports to transfer 
nothing more than interest which grantor may have, if 
any, at time of transaction, and excludes any implica
tion that he has any title or interest in described realty. 
Sabine Production Co. v. Guaranty Bank & Trust Co., 
La.App. 1 Cir., 432 So.2d 1047, 1052. Under the law of 
some states the grantor warrants in such deed that 
neither he nor anyone claiming under him has encum
bered the property and that he will defend the title 
against defects arising under and through him, but as to 
no others. Compare Warranty deed. 
Qui timent, cavent vitant Ikway taym:;)nt, krev:;)nt 
vayt:;)nt/. They who fear, take care and avoid. 
Qui totum dicit nihil excipit Ikway towt:;)m dis:;)t 
nay(h):;)l eks:;)p:;)t/. He who says all excepts nothing. 
Quit rent. A rent paid by the tenant of the freehold, by 
which he goes quit and free,-that is, discharged from 
any other rent. 2 Bl.Comm. 42. 
Quittance I kwit:;)ns I . An abbreviation of "acquittance;" 
a release (q.v.). 
Qui vult decipi, decipiatur Ikway v�lt des:;)pay, 
d:;)sipiyeyt:;)r/. Let him who wishes to be deceived, be 
deceived. 
Quoad hoc Ikwowred hok/. Lat. As to this; with re
spect to this; so far as this in particular is concerned. A 
prohibition quoad hoc is a prohibition as to certain 
things among others. Thus, where a party was com
plained against in the ecclesiastical court for matters 
cognizable in the temporal courts, a prohibition quoad 
these matters issued, i.e., as to such matters the party 
was prohibited from prosecuting his suit in the ecclesias
tical court. 
Quoad sacra Ikwowred seykr:;) I . Lat. As to sacred 
things; for religious purposes. 
Quo animo Ikwow ren:;)mow/. Lat. With what inten
tion or motive. Used sometimes as a substantive, in lieu 
of the single word "animus, " design or motive. "The 
quo animo is the real subject of inquiry." 
Quocumque modo velit; quocumque modo possit 
Ikwowk�mkwiy mowdow vel:;)t; kwowk�mkwiy mowdow 
pos:;)t/. In any way he wishes; in any way he can.

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QUOD AB INITIO NON VALET 
Quod ab initio non valet in tractu temporis non 
convalescet Ikw6d reb :mish(iy)ow non vrel�t in 
trrekt(y)uw temp�r�s non konv�les�t/. That which is 
bad in its commencement improves not by lapse of time. 
Quod ad jus naturale attinet omnes homines requales 
sunt Ikw6d red j;}S nrety�reyliy ret�n�t 6mniyz h6m�niyz 
iykweyliyz s�nt/. All men are equal as far as the 
natural law is concerned. 
Quod redificatur in area legata cedit legato Ikwod 
ed�f�keyt�r in eriy� l�geyt� siyd�t l�geytow I. Whatever 
is built on ground given by will goes to the legatee. 
Quod alias bonum et justum est, si per vim vel frau
dem petatur, malum et injustum efficitur Ikwod ey
liy�s b6wn�m et j;}st�m est, say p�r vim vel fr6d�m 
p�teyt�r, mrebm ed inj;}st�m �fish�t�r/. What otherwise 
is good and just, if it be sought by force and fraud, 
becomes bad and unjust. 
Quod alias non fuit licitum, necessitas licitum facit 
Ikwod eyliy�s non f(y)uw�t lis�t�m, n�ses�tres lis�t�m 
feys�t/. What otherwise was not lawful, necessity 
makes lawful. 
Quod approbo non reprobo Ikwod repr�bow non 
repr�bow I. What I approve I do not reject. I cannot 
approve and reject at the same time. I cannot take the 
benefit of an instrument, and at the same time repudi
ate it. 
Quod a quoque prenre nomine exactum est id eidem 
restituere nemo cogitur Ikw6d ey kw6wkwiy piyniy 
n6m�niy �gzrekt�m est id iyayd�m rest�t(y)uw�riy 
niymow k6j�t�r I. That which has been exacted as a 
penalty no one is obliged to restore. 
Quod attinet ad jus civile, servi pro nullis habentur, 
non tamen et jure naturali, quia, quod ad jus natu
rale attinet, omnes homines requales sunt Ikw6d 
ret�n�t red j;}S siv�liy, s;}rvay prow n;}l�s h�bent�r, non 
trem�n et juriy nrety�reylay, kway�, kw6d red j;}S 
n�ty�reyliy red�n�t, 6mniyz h6m�niyz iykweyliyz s�nt/. 
So far as the civil law is concerned, slaves are not 
reckoned as persons, but not so by natural law, for, so 
far as regards natural law, all men are equal. 
Quod billa cassetur Ikwod bib k�siyt�r I. That the bill 
be quashed. The common-law form of a judgment sus
taining a plea in abatement, where the proceeding is by 
bill, i.e., by a capias instead of by original writ. 
Quod clerici beneficiati de cancellaria Ikwod 
klehr�say ben�fishiyeytay diy krens�leriy�/. A writ to 
exempt a clerk of the chancery from the contribution 
towards the proctors of the clergy in parliament, etc. 
Quod clerici non eligantur in officio ballivi, etc. 
Ikwod klehr�say non el�grent�r in �fish(iy)ow brelayvay/. 
A writ which lay for a clerk, who, by reason of some 
land he had, was made, or was about to be made, bailiff, 
beadle, reeve, or some such officer, to obtain exemption 
from serving the office. 
Quod computet Ikwod k6mpy�t�t/. That he account. 
1252 
Judgment quod computet. A preliminary or interlocu
tory judgment given in the action of account-render (also 
in the case of creditors' bills against an executor or 
administrator), directing that accounts be taken before a 
master or auditor. 
Quod constat clare non debet verificari Ikwod 
k6nstret kleriy non deb�t vehr�f�keray/. What is clearly 
apparent need not be proved. 
Quod constat curire opere testium non indiget Ikwod 
k6nstret kyuriyiy 6wp�riy testiy�m non ind�j�tI. That 
which appears to the court needs not the aid of witness
es. 
Quod contra legem fit pro infecto habetur Ikwod 
k6ntr� liyj�m fit prow infektow h�biyt�r/. That which 
is done against law is regarded as not done at all. 
Quod contra rationem juris receptum est, non est 
producendum ad consequentias Ikwod k6ntr� 
rreshiy6wn�m jur�s r�sept�m est, n6n est prowd�send�m 
red kons�kwensh(iy)�s/. That which has been received 
against the reason of the law is not to be drawn into a 
precedent. 
Quod cum Ikw6d k�m/. In common law pleading, for 
that whereas. A form of introducing matter of induce
ment in certain actions, as assumpsit and case. 
Quodcunque aliquis ob tutelam corporis sui fecerit, 
jure id fecisse videtur Ikwodk;}nkwiy rel�kw�s ob 
t(y)uwtiyl�m k6rp�r�s s(y)uway fes�r�t, juriy id f�sisiy 
v�diyt�r I. Whatever any one does in defense of his 
person, that he is considered to have done legally. 
Quod datum est ecclesire, datum est deo Ikwod deyt�m 
est �kliyziyiy, deyt�m est diyow/. What is given to the 
church is given to God. 
Quod demonstrandi causa additur rei satis, demons
tratre, frustra fit Ikwod dem�nstrrenday k6z� red�t�r 
riyay seyt�s, dem�nstreytiy, fr;}str� fit I . What is added 
to a thing sufficiently palpable, for the purpose of dem
onstration, is vain. 
Quod dubitas, ne feceris Ikw6d d(y)uwb�t�s, niy 
fes�r�s/. What you doubt of, do not do. In a case of 
moment, especially in cases of life, it is safest to hold 
that in practice which hath least doubt and danger. 
Quod ei deforceat Ikwod iyay d�f6rsiy�t/. In old Eng
lish law, the name of a writ given by St. Westm. 2, 13 
Edw. I, c. 4, to the owners of a particular estate, as for 
life, in dower, by the curtesy, or in fee-tail, who were 
barred of the right of possession by a recovery had 
against them through their default or nonappearance in 
a possessory action, by which the right was restored to 
him who had been thus unwarily deforced by his own 
default. 3 Bl.Comm. 193. 
Quod enim semel aut bis existit, prretereunt legisla
tores Ikw6d enim sem�l ot bis �gzist�t, pr�tehriy�nt 
lej�sl�t6riyz/. That which never happens but once or 
twice, legislators pass by.

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1253 
Quod est ex necessitate nunquam introducitur, nisi 
quando necessarium Ikwod est eks n�ses�teytiy 
n:)IJkw�m intr�d(y)uws��r, naysay kwondow 
nes�seriy�m/. That which is of necessity is never intro
duced, unless when necessary. 
Quod est inconveniens aut contra rationem non per
missum est in lege Ikwod est ink�nviyn(iy)enz ot 
kontr� rreshiyown�m non p�rmis�m est in liyjiy I. That 
which is inconvenient or against reason is not permissi
ble in law. 
Quod est necessarium est licitum Ikwod est 
nes�seriy�m est lis�t�m/. What is necessary is lawful. 
Quod factum est, cum in obscuro sit, ex affectione 
cujusque capit interpretationem Ikwod frekt�m est, 
k:}m in obsk(y)urow sit, eks �fekshiyowniy k(y)uw
j:}skwiy krep�t �nt�rpr�teyshiyown�m/. When there is 
doubt about an act, it receives interpretation from the 
(known) feelings of the actor. 
Quod fieri debet facile prresumitur Ikwod fay�ray 
deb�t fres�liy pr�z(y)uwm�t�r/. That which ought to be 
done is easily presumed. 
Quod fieri non debet, factum valet Ikwod fay�ray non 
deb�t, frekt�m vrel�t/. That which ought not to be done, 
when done, is valid. 
Quod fuit concessum Ikwod f(y)uw�t k�nses�m/. 
Which was granted. A phrase in the reports, signifying 
that an argument or point made was conceded or ac
quiesced in by the court. 
Quod inconsulto fecimus, consultius revocemus 
Ikwod ink�ns:}ltow fes�m�s, k�ns:}lsh(iy)�s rev�siym�s/. 
What we have done without due consideration, upon 
better consideration we may revoke. 
Quod initio non valet, tractu temporis non valet 
Ikwod �nish(iy)ow non vrel�t, trrekt(y)uw temp�r�s non 
vrel�t/. A thing void in the beginning does not become 
valid by lapse of time. 
Quod initio vitiosum est non potest tractu temporis 
convalescere Ikwod �nish(iy)ow vishiyows�m est non 
powt�st trrekt(y)uw temp�r�s konv�les�riy I. That which 
is void from the beginning cannot become valid by lapse 
of time. 
Quod in jure scripto "jus" appellatur, id in lege 
anglire "rectum" esse dicitur Ikwod in juriy skriptow 
j:}s rep�leyt�r, id in liyjiy reIJgliyiy rekt�m esiy dis�t�r/. 
What in the civil law is called "jus," in the law of 
England is said to be "rectum" (right). 
Quod in minori valet valebit in majori; et quod in 
majori non valet nec valebit in minori Ikwod in 
m�noray vrebt v�liyb�t in m�joray; et kwod in m�joray 
non vrebt nek v�liyb�t in m�noray I. That which is valid 
in the less shall be valid in the greater; and that which 
is not valid in the greater shall neither be valid in the 
less. 
Quod in uno similium valet valebit in altero Ikwod in 
yuwnow s�miliy�m vrel�t v�liyb�t in olt�row I. That 
QUOD NON FUIT NEGATUM 
which is effectual in one of two like things shall be 
effectual in the other. 
Quod ipsis qui contraxerunt obstat, et successoribus 
eorum obstabit Ikwod ips�s kwliy kontrreksir�nt 
obstret, et s�ksesor�b�s iyor�m obsteyb�tI. That which 
bars those who have made a contract will bar their 
successors also. 
Quod jussu Ikwod j:}s(y)uw/. Lat. In the civil law, the 
name of an action given to one who had contracted with 
a son or slave, by order of the father or master, to 
compel such father or master to stand to the agreement. 
Quod jussu alterius solvitur pro eo est quasi ipsi 
solutum esset Ikwod j:}s(y)uw olt�ray�s solv�t�r prow 
iyow est kweysay ipsay s�l(y)uwt�m es�t/. That which 
is paid by the order of another is the same as though it 
were paid to himself. 
Quod meum est sine facto meo vel defectu meo amitti 
vel in alium transferri non potest Ikwod miy�m est 
sayniy frektow miyow vel d�fekt(y)uw miyow �mitay vel 
in eyl(i)y�m trrensf:}ray non powt�st/. That which is 
mine cannot be lost or transferred to another without 
my alienation or forfeiture. 
Quod meum est sine me auferri non potest Ikwod 
miy�m est sayniy miy Ofehray non powt�st/. That 
which is mine cannot be taken away without me [with
out my assent]. 
Quod minus est in obligationem videtur deductum 
Ikwod mayn�s est in obl�geyshiyown�m v�diyt�r 
d�d:}kt�m/. That which is the less is held to be import
ed into the contract; (e.g., A. offers to hire B.'s house at 
six hundred dollars, at the same time B. offers to let it 
for five hundred dollars; the contract is for five hundred 
dollars). 
Quod naturalis ratio inter omnes homines constituit, 
vocatur jus gentium Ikwod nrety�reyl�s reysh(iy)ow 
int�r omniyz hom�niyz k�nstityuw�t, vowkeyt�r j:}s 
jensh(iy)�m/. That which natural reason has estab
lished among all men is called the "law of nations." 
Quod necessarie intelligitur non deest Ikwod nes�se
riyiy int�lij�t�r non diyest/. That which is necessarily 
understood is not wanting. 
Quod necessitas cogit, defendit Ikwod n�ses�tres 
ko(w)j�t, d�fend�tI. That which necessity compels, it 
justifies. 
Quod non apparet non est; et non apparet judiciali
ter ante judicium Ikwod non �prer�t non est et non 
�prer�t juwdishiyeybt�r rentiy juwdish(iy)�m/. That 
which appears not is not; and nothing appears judicially 
before judgment. 
Quod non capit christus, capit fiscus Ikwod non krep�t 
krist�s krep�t fisk�s/. What Christ [the church] does not 
take the treasury takes. Goods of a {elo de se go to the 
king. A maxim in old English law. 
Quod non fuit negatum Ikwod non f(y)uw�t n�geyt�m/. 
Which was not denied. A phrase found in the old

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QUOD NON FUIT NEGATUM 
reports, signifying that an argument or proposition was 
not denied or controverted by the court. 
Quod non habet principium non habet finem Ikwod 
non heyb�t pr�nsip(i)y�m non heyb�t fayn�m/. That 
which has not beginning has not end. 
Quod non legitur, non creditur Ikwod non lej�t�r non 
kred�t�r I. What is not read is not believed. 
Quod non valet in principali, in accessorio seu conse
quenti non valebit; et quod non valet in magis 
propinquo non valebit in magis remoto Ikwod non 
vrel�t in prins�peylay, in reks�soriyow syuw kons�kwen
tay non v�liyb�t; et kwod non vrel�t in meyj�s 
pr�pilJkwow non v�liyb�t in meyj�s r�mowtow I. That 
which is not good against the principal will not be good 
as to accessories or consequences; and that which is not 
of force in regard to things near it will not be of force in 
regard to things remote from it. 
Quod nota Ikwod nowt�/. Which note; which mark. A 
reporter's note in the old books, directing attention to a 
point or rule. 
Quod nullius esse potest id ut alicujus fieret nulla 
obligatio valet efficere Ikwod n�lay�s esiy powt�st id 
�d rel�kyuwj�s fay�r�t n�l� obl�geysh(iy)ow vrel�t �fis
�riy/. No agreement can avail to make that the proper
ty of any one which cannot be acquired as property. 
Quod nullius est, est domini regis Ikw6d n�lay�s est, 
est d6m�nay riyj�s/. That which is the property of 
nobody belongs to our lord the king. 
Quod nullius est, id ratione naturali occupanti 
conceditur Ikw6d n�lay�s est, id rreshiyowniy nrety�rey
lay oky�prentay k�nsiyd�t�r I. That which is the proper
ty of no one is, by natural reason, given to the [first] 
occupant. Adopted in the common law. 
Quod nullum est, nullum producit effectum Ikw6d 
n�l�m est, n�l�m pr�d(y)uws�t �fekt�m/. That which is 
null produces no effect. 
Quod omnes tangit ab omnibus debet supportari 
Ikwod 6mniyz trenj�t reb 6mn�b�s deb�t s�porteray (, 
That which touches or concerns all ought to be sup
ported by all. 
Quod partes replacitent Ikw6d partiyz r�plres�t�nt/. 
That the parties do replead. 
Judgment quod partes replacitent. A judgment for re
pleader which is given if an issue is formed on so 
immaterial a point that the court cannot know for 
whom to give judgment. The parties must then recon
struct their pleadings. 
Quod partitio fiat Ikw6d partish(iy)ow fay�t/. That 
partition be made. The name of the judgment in a suit 
for partition, directing that a partition be effected. 
Quod pendet non est pro eo quasi sit Ikw6d pend�t 
non est prow iyow kweysay sit/. What is in suspense is 
considered as not existing during such suspense. 
Quod per me non possum, nec per alium Ikw6d p�r 
miy non p6s�m, nek p�r eyl(i)y�m/. What I cannot do 
by myself, I cannot by another. 
1254 
Quod permittat Ikw6d p�rmit�t/. That he permit. In 
old English law, a writ which lay for the heir of him 
that was disseised of his common of pasture, against the 
heir of the disseisor. 
Quod permittat prosternere Ikw6d p�rmit�riy pr�s
t�rn�riy I. That he permit to abate. In old practice, a 
writ, in the nature of a writ of right, which lay to abate 
a nuisance. 3 Bl.Comm. 221. 
Quod per recordum probatum, non debet esse nega
tum Ikwod p�r r�k6rt�m pr�beyt�m, non det�t esiy 
n�geyt�m/. What is proved by record ought not to be 
denied. 
Quod persona nec prebendarii, etc. Ikw6d p�rsown� 
nek preb�nderiyay I. A writ which lay for spiritual 
persons, distrained in their spiritual possessions, for 
payment of a fifteenth with the rest of the parish. 
Quod populus postremum jussit, id jus ratum esto 
Ikwod p6p(y)�I�s p�striym�m j�s�t, id j�s reyt�m es
tow I. What the people have last enacted, let that be the 
established law. A law of the Twelve Tables, the princi
ple of which is still recognized. 1 Bl.Comm. 89. 
Quod primum est intentione ultimum est in opera
tione IkwOd praym�m est intenshiy6wniy �lt�m�m est 
in op�reyshiy6wniy/. That which is first in intention is 
last in operation. 
Quod principi placuit, legis habet vigorem; ut pote 
cum lege regia, qure de imperio ejus lata est, popu
lus ei et in eum omne suum imperium et potestatem 
conferat Ikwod prins�pay plrekyuw�t liyj�s heyb�t 
vig6r�m, �t p6wtiy k;}m liyjiy riyjiy�, kwiy diy impiriyow 
iyj�s leyt� est, popy�l�s iyay et in iy�m 6mniy syUw�m 
impiriy�m et p6wt�steyt�m k6nf�rretl. The will of the 
emperor has the force of law; for, by the royal law 
which has been made concerning his authority, the 
people have conferred upon him all its sovereignty and 
power. 
Quod prius est verius est; et quod prius est tempore 
potius est jure Ikwod pray�s est vihriy�s est; et kw6d 
pray�s est temp�riy powsh(iy)�s est juriy/. What is first 
is true; and what is first in time is better in law. 
Quod pro minore licitum est et pro majore licitum 
est Ikw6d prow m�n6riy lis�t�m est et prow m�j6riy 
lis�t�m est/. That which is lawful as to the minor is 
lawful as to the major. 
Quod prostravit Ikw6d prostreyv�tI. That he do abate. 
The name of a judgment upon an indictment for a 
nuisance, that the defendant abate such nuisance. 
Quod pure debetur prresenti die debetur Ikwod pyuriy 
d�biyt�r pr�zentay dayiy d�biyt�r/. That which is due 
unconditionally is due now. 
Quodque dissolvitur eodem modo quo ligatur Ikw6d
kwiy d�z6Iv�t�r iyowd�m mowdow kwow l�geyt�r/. In 
the same manner that a thing is bound, in the same 
manner it is unbound. 
Quod quis ex culpa sua damnum sentit non intelligi
tur damnum sentire Ikwod kwis eks k�lp� s(y)uw�

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1255 
d�mn;m sent;t non int;lij; t;r d�mn;m sentayriy I. 
The damage which one experiences from his own fault is 
not considered as his damage. 
Quod quisquis norit in hoc se exerceat Ikwod kwisk
wis nor;t in hok siy ;gz�rsiy;t/. Let every one employ 
himself in what he knows. 
Quod quis sciens indebitum debit hac mente, ut pos
tea repeteret, repetere non potest Ikwod kwis say:mz 
indeb;t;m deb:}t hrek mentiy, ;)t powstiy:} r:}pet:}r:}t, 
rep:}tiriy non powt:}st/. That which one has given, 
knowing it not to be due, with the intention of rede
manding it, he cannot recover back. 
Quod recuperet Ikwod r:}k(y)uwp:}r:}t/. That he recov
er. The ordinary form of judgments for the plaintiff in 
actions at law. 
Judgment of quod recuperet. When an issue in fact, or 
an issue in law arising on a peremptory plea, is deter
mined for the plaintiff, the judgment is "that the plain
tiff do recover," etc., which is called a judgment quod 
recuperet. It is either final or interlocutory, according 
as the quantum of damages is or is not ascertained at 
the rendition of the judgment. 
Quod remedio destituitur ipsa re valet si culpa absit 
/kwod r;miyd(i)yow dest:}t(y)uw;t:}r ips:} riy v�l:}t say 
k�lp:} �bsit/. That which is without remedy avails of 
itself, if there be no fault in the party seeking to enforce 
it. 
Quod semel meum est amplius meum esse non potest 
Ikwod sem:}l miy:}m est �mpliy:}s miy:}m esiy non 
powt:}st/. What is once mine cannot be more fully 
mine. 
Quod semel placuit in electione, amplius displicere 
non potest Ikwod sem:}l pl�k(y)uw:}t in :}U�kshiyowniy, 
�mpliy:}s displis:}riy non powt:}stl. What a party has 
once determined, in a case where he has an election, 
cannot afterwards be disavowed. 
Quod si contingat Ikwod say kont:}l)g:}t/. That if it 
happen. Words by which a condition might formerly be 
created in a deed. 
Quod solo inredificatur solo cedit Ikwod sow low 
ined;f:}keyt:}r sowlow siyd:}t/. Whatever is built on the 
soil is an accessory of the soil. 
Quod sub certa forma concessum vel reservatum est 
non trahitur ad valorem vel compensationem Ikwod 
s;)b s�rt:} form:} k:}nses:}m vel rez:}rveyt:}m est non 
trey(h):}t:}r red v:}lor:}m vel'komp:}nseyshiyown:}m/. That 
which is granted or reserved under a certain form is not 
[permitted to be] drawn into valuation or compensation. 
That which is granted or reserved in a certain specified 
form must be taken as it is granted, and will not be 
permitted to be made the subject of any adjustment or 
compensation on the part of the grantee. 
Quod subintelligitur non deest Ikwod s;)bint:}lij:}t:}r 
non diyest/. What is understood is not wanting. 
QUORUM 
Quod tacite intelligitur deesse non videtur Ikwoo 
tres:}tiy int:}lij:}t:}r diyesiy non v:}diyt:}r I. What is tacitly 
understood is not considered to be wanting. 
Quod vanum et inutile est, lex non requirit Ikwoo 
veyn:}m et inyu.wt:}liy est, leks non r:}kwayr:}t/. The law 
requires not what is vain and useless. 
Quod vero contra rationem juris receptum est, non 
est producendum ad consequentias Ikwod virow 
kontr:} rreshiyown:}m jur:}s r:}sept:}m est, non est 
prowd:}send:}m red kons:}kwensh(iy):}s/. But that which 
has been admitted contrary to the reason of the law, 
ought not to be drawn into precedents. 
Quod vide Ikwod vaydiy I. Which see. A direction to 
the reader to look to another part of the book, or to 
another book, there named, for further related informa
tion. Usually abbreviated "q.v." 
Quod voluit non dixit Ikwod vol(y)uw:}t non diks:}t/. 
What he intended he did not say, or express. An 
answer sometimes made in overruling an argument that 
the lawmaker or testator meant so and so. 
Quo jure Ikwow juriy I. Lat. In old English practice, a 
writ which lay for one that had land in which another 
claimed common, to compel the latter to show by what 
title he claimed it. 
Quo ligatur, eo dissolvitur Ikwow l:}geyt:}r, iyow 
d:}zolv:}t:}r I. By the same mode by which a thing is 
bound, by that is it released. 
Quo minus Ikwow mayn:}sl. Lat. A writ upon which 
all proceedings in the court of exchequer were formerly 
grounded. In it the plaintiff suggests that he is the 
king's debtor, and that the defendant has done him the 
injury or damage complained of, quo minus sufficiens 
existit, by which he is less able to pay the king's debt. 
This was originally requisite in order to give jurisdiction 
to the court of exchequer; but now this suggestion is a 
mere form. 3 Bl.Comm. 46. 
Quo modo quid constituitur eodem modo dissolvitur 
Ikwow mowdow kwid konst:}t(y)uwt:}r iyowd:}m mowdow 
d:}zolv:}t:}r/. In the same manner by which anything is 
constituted by that it is dissolved. 
Quorum I kwor:}m I . A majority of the entire body; e.g., 
a quorum of a state supreme court. The number of 
members who must be present in a deliberative body 
before business may be transacted. In both houses of 
Congress a quorum consists of a majority of those chosen 
and sworn. 
Such a number of the members of a body as is compe
tent to transact business in the absence of the other 
members. The idea of a quorum is that, when that 
required number of persons goes into a session as a 
body, such as directors of a corporation, the votes of a 
majority thereof are sufficient for binding action. Ben
intendi v. Kenton Hotel, 294 N.Y. 11 2, 60 N.E.2d 829, 
831. When a committee, board of directors, meeting of 
shareholders, legislature or other body of persons cannot 
act unless a certain number at least of them are present, 
that number is called a "quorum." In the absence of

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QUORUM 
any law or rule fixing the quorum, it consists of a 
majority of those entitled to act. 
Quorum prretextu nec auget nec minuit sententiam, 
sed tantum confirmat prremissa /kwor;)m 
pr;)tekst(y)uw nek og;)nt nek min(y)uw;)t s;)ntensh(iy);)m, 
sed tamt;)m k;)nf�rm;)t pr;)mis;)/. "Quorum prretextu" 
neither increases nor diminishes a sentence, but only 
confirms that which went before. 
Quota /kwowt;)/. A proportional part or share, the 
proportional part of a demand or liability, falling upon 
each of those who are collectively responsible for the 
whole. 
An assigned goal, as a sales quota; a limiting number 
or percentage such as the quota of immigrants from a 
particular country. 
See also Export quotas; Import quota. 
Quotation. The presentation or production to a court or 
judge of the exact language of a statute, court opinion, 
precedent, or other authority, in support of an argument 
or proposition advanced. 
The verbatim transcription of part of a literary com
position into another book or writing. 
A statement of the market price of one or more 
securities or commodities; or the price specified to a 
correspondent. Often shortened to "quote." The high
est bid to buy and the lowest offer to sell a security or 
commodity in a given market at a given time. 
Quotiens dubia interpretatio Iibertatis est, secundum 
Iibertatem respondendum erit /kwowsh(iy)enz 
d(y)uwbiy;) int�rpr;)teysh(iy)ow lib;)rteyt;)s est, s;)k�nd;)m 
Bb;)rteyt;)m respondend;)m ehr;)t/. Whenever there is a 
doubt between liberty and slavery, the decision must be 
in favor of liberty. 
Quotiens idem sermo duas sententias exprimit, ea 
potissimum accipiatur, qure rei gerendre aptior est 
/kwowsh(iy)enz ayd;)m s�rmow d(y)uw;)s s;)nten
sh(iy);)s ekspr;)m;)t, iy;) p;)tis;)m;)m ;)ksipiyeyt;)r, kwiy 
riyay j;)renday repshiy;)r est/. Whenever the same 
words express two meanings, that is to be taken which is 
the better fitted for carrying out th� proposed end. 
Quotient verdict /kwowsh;)nt v�rdikt/. A verdict re
sulting from agreement whereby each juror writes down 
amount of damages to which he thinks party is entitled 
and such amounts are then added together and divided 
by number of jurors. Index Drilling Co. v. Williams, 242 
Miss. 775, 137 So.2d 525, 530. A chance verdict such 
that no juror knows what the verdict will be when he 
submits his vote on damages because the final amount is 
calculated by a preagreed formula. Freight Terminals, 
Inc. v. Ryder System, Inc., C.A.Tex., 461 F.2d 1046, 1053. 
While the general rule is that the use of a quotient 
verdict is improper and constitutes grounds for a new 
trial, Niebla v. Flying Tigers, Inc., Fla.App., 533 So.2d 
816, it has been held that evidence that the jury utilized 
the quotient verdict process at some point in their 
deliberations was not fatal to the verdict, so long as the 
figure reached was discussed by the jury and agreed 
upon as a fair expression of their opinion, McKay v. City 
1256 
of Tulsa, Okl., 763 P.2d 703, 705, 706; and, is not 
objectionable if, after it is determined, the jury deliber
ates further and accepts the result as just, National RR 
Passenger Corp. v. Two Parcels of Land, One 1691 Sq. 
Foot More or Less Parcel of Land in Town of New 
London, New London County and State of Conn., C.A. 
Conn., 822 F.2d 1261, 1268. 
Quoties dubia interpretatio Iibertatis est, secundum 
Iibertatem respondendum erit /kwowshiy(iy)z 
d(y)uwbiy;) int�rpr;)teysh(iy)ow Hb;)rteyt;)s est, s;)k�nd;)m 
lib;)rteyt;)m r;)spondend;)m est!. Whenever the interpre
tation of liberty is doubtful, the answer should be on the 
side of liberty. 
Quoties idem sermo duas sententias exprimit, ea po
tissimum excipiatur, qure rei gerendre aptior est 
/kwowshiy(iy)z ayd;)m s�rmow d(y)uw;)s s;)ntensh(i)y;)s 
ekspr;)m;)t, iy;) p;)tis;)m;)m ekspr;)m;)t, kwiy riyay j;)ren
day repshiy;)r est/. Whenever the same language ex
presses two meanings that should be adopted which is 
the better fitted for carrying out the subject-matter. 
Quoties in stipulationibus ambigua oratio est, com
modissimum est id accipi quo res de qua agitur in 
tuto sit /kwowshiy(iy)z in stipy;)leyshiyown;)b;)s 
rembig(y)uw;) oreysh(iy)ow est, kom;)dis;)m;)m est id 
reks;)pay kWQW riyz diy kwey eyj;)t;)r in t(y)uwtow sit/. 
Whenever the language of stipulations is ambiguous, it 
is most fitting that that [sense] should be taken by 
which the subject-matter may be protected. 
Quoties in verbis nulla est ambiguitas, ibi nulla ex
positio contra verba fienda est /kwowshiy(iy)z in 
v�rb;)s n�l;) est remb;)gyuw;)tres, aybay n�l;) 
eksp;)zish(iy)ow kontr;) v�rb;) fayend;) est!. When in the 
words there is no ambiguity, then no exposition contrary 
to the words is to be made. 
Quousque /kwow�skwiy /. Lat. How long; how far; 
until. In old conveyances it is used as a word of limita
tion. 
Quovis modo /kwowvis mowdow/. Lat. In whatever 
manner. 
Quo warranto /kwow w;)rrentow /. In old English prac
tice, a writ in the nature of a writ of right for the king, 
against him who claimed or usurped any office, fran
chise, or liberty, to inquire by what authority he sup
ported his claim, in order to determine the right. It lay 
also in case of non-user, or long neglect of a franchise, or 
misuser or abuse of it; being a writ commanding the 
defendant to show by what warrant he exercises such a 
franchise, having never had any grant of it, or having 
forfeited it by neglect or abuse. 3 Bl.Comm. 262. 
A common law writ designed to test whether a person 
exercising power is legally entitled to do so. An extraor
dinary proceeding, prerogative in nature, addressed to 
preventing a continued exercise of authority unlawfully 
asserted. Johnson v. Manhattan Ry. Co., N.Y., 289 U.S. 
479, 53 S.Ct. 721, 77 L.Ed. 1331. It is intended to 
prevent exercise of powers that are not conferred by 
law, and is not ordinarily available to regulate the 
manner of exercising such powers.

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1257 
An ancient prerogative right through which the state 
acts to protect itself and the good of public generally 
through its chosen agents as provided by its Constitution 
and laws, though sometimes it is brought at instance of 
and for benefit of a private individual who may have a 
special interest. Lewis v. Drake, Tex.App., 641 S.W.2d 
392, 394. Legal action · whereby legality of exercise of 
powers by municipal corporation may be placed in issue. 
People ex rel. City of Des Plaines v. Village of Mount 
Prospect, 29 Ill.App.3d 807, 331 N.E.2d 373, 377. 
In the law of corporations, quo warranto may be used 
to test whether a corporation was validly organized or 
whether it has power to engage in the business in which 
it is involved. 
The federal rules are applicable to proceedings for quo 
warranto "to the extent that the practice in such pro
ceedings is not set forth in statutes of the United States 
and has heretofore conformed to the practice in civil 
actions." Fed.R. Civil P. 81(a)(2). Any remedy that 
could have been obtained under the historic writ of quo 
warranto may be obtained by a civil action of that 
nature. U. S. v. Nussbaum, D.C.Cal., 306 F.Supp. 66. 
Quum de lucro duorum qureratur, melior est causa 
possidentis Ik:lm diy l(y)uwkrow d(y)uwor::lm 
kW::lreyt::lr, miyl(i)Y::lr est kOZ::l p::lsidiyEmt::lsl. When the 
Q.V. 
question is as to the gain of two persons, the title of the 
party in possession is the better one. 
Quum in testamento ambigue aut etiam perperam 
scriptum est, benigne interpretari et secundum id 
quod credible et cogitatum, credendum est Ik:lm in 
test::lmEmtow rembigyuwiy ot esh(iY)::lm p:lrp::lr::lm 
skript::lm est, b::lnigniy int;}rpr::lteray et s::lk:lnd::lm id 
kwod kr::ldib::lliy et koj::lteyt::lm, kr::ldend::lm est!. When 
in a will an ambiguous or even an erroneous expression 
occurs, it should be construed liberally and in accord
ance with what is thought the probable meaning of the 
testator. 
Quum principalis causa non consistit ne ea quidem 
qure sequuntur locum habent Ik;lm prins::lpeybs koz::l 
non k::lnsist::lt niy iY::l kwayd::lm kwiy s::lkw:lnt::lr lowk::lm 
heyb::lnt/. When the principal does not hold, the inci
dents thereof ought not to obtain. 
Quum quod ago non valet ut ago, valeat quantum 
valere potest Ik:lm kwod eygow non vrel::lt ;}t eygow, 
vreliY::lt kwont::lm v::lliriy powt::lst/. When what I do is of 
no force as to the purpose for which I do it, let it be of 
force to as great a degree as it can. 
Q.V. An abbreviation of "quod vide," meaning "which 
see".

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R 
R. In the signatures of royal persons, "R." is an abbrevi
ation for "rex" (king) or "regina" (queen). In descrip
tions of land, according to the divisions of the govern
mental survey, it stands for "range." Simms v. Rolfe, 
177 Ark. 52, 5 S.W.2d 718, 719. 
Rabbinical divorce. Divorce granted under authority 
of rabbis. 
Race. An ethnical stock; a great division of mankind 
having in common certain distinguishing physical pecu
liarities constituting a comprehensive class appearing to 
be derived from a distinct primitive source. A tribal or 
national stock; a division or subdivision of one of the 
great racial stocks of mankind distinguished by minor 
peculiarities. 
Race-notice recording statutes. State laws which pro
vide that an unrecorded conveyance is invalid as against 
a subsequent purchaser for value who re
cords without knowledge of the prior unrecorded instru
ment. The recording of the later instrument, however, 
must generally be in the chain of title. Such laws 
combine the features of both notice and race statute. 
See also Pure race statute; Recording acts. 
Race recording statutes. In a state with a race record
ing statute, the party who records an instrument of 
conveyance has the better claim regardless of notice of 
prior unrecorded instruments. See Pure race statutes; 
Recording acts. 
Rachat /rasha/. In French law, the right of repurchase 
which, in English and American law, the vendor may 
reserve to himself. It is also called "remere." 
Rachater /rashatey/. L. Fr. To redeem; to repurchase, 
(or buy back). 
Rack. An engine of torture anciently used in the inqui
sitorial method of examining persons charged with 
crime, the office of which was to break the limbs or 
dislocate the joints. 
Racket. Engaging in an operation to make money ille
gitimately, implying continuity of behavior. 
Racketeer. A person who makes money by violations of 
racketeering laws. 
Racketeer Influenced and Corrupt Organizations 
Act. See RICO laws. 
Racketeering. An organized conspiracy to commit the 
crimes of extortion or coercion, or attempts to commit 
extortion or coercion. From the standpoint of extortion, 
it is the obtaining of money or property from another, 
without his consent, induced by the wrongful use of 
force or fear. The fear which constitutes the legally 
necessary element in extortion is induced by oral or 
written threats to do an unlawful injury to the property 
of the threatened person by means of explosives, fire, or 
otherwise; or to kill, kidnap, or injure him or a relative 
of his or some member of his family. See Extortion. 
Activities of organized criminals who extort money 
from legitimate businesses by violence or other forms of 
threats or intimidation or conduct of illegal enterprises 
such as gambling, narcotics traffic, or prostitution. See 
18 U.S.C.A. § 1961(1) ("racketeering activity" defined). 
Racketeering is demanding, soliciting or receiving 
anything of value from the owner, proprietor, or other 
person having a financial interest in a business, by 
means of either a threat, express or implied, or a prom
ise, express or implied, that the person so demanding, 
soliciting or receiving such thing of value will: (a) Cause 
the competition of the person from whom the payment 
is demanded, solicited or received to be diminished or 
eliminated; or (b) Cause the price of goods or services 
purchased or sold in the business to be increased, de
creased or maintained at a stated level; or (c) Protect 
the property used in the business or the person or family 
of the owner, proprietor or other interested person from 
injury by violence or other unlawful means. 
For federal racketeering offenses, see 18 U.S.C.A. 
§§ 1951 et seq; 1961 et seq. 
See also Extortion; Hobbs Act; RICO laws. 
Rack-rent. A rent of the full value of the tenement, or 
near it. Exorbitant rent which equals or exceeds the 
economic value of the property. 
Raffle. A form of lottery in which each participant buys 
a ticket for an article put up as a prize with the winner 
being determined by random drawing. Williams v. Web
er Mesa Ditch Extension Co., Inc., Wyo., 572 P.2d 412, 
414. See also Lottery. 
Raider. An individual or corporation who attempts to 
take control of a target corporation by buying a control
ling interest in its stock and installing new manage
ment. Raiders who accumulate 5% or more of the 
outstanding shares in the target company must publicly 
report their purchases under the Williams Act, § 14(e), 
15 U.S.C.A. § 78n(e). See also Takeover. 
Raiding. Practice whereby voters in sympathy with one 
party designate themselves as voters of another party so 
as to influence or determine results of other party's 
1258

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1259 
primary. Republican Party of State of Conn. v. Tashji
an, C.A.Conn., 770 F.2d 265, 284. 
Railroad. With respect to the process of enacting laws, 
means to force through legislation with little debate 
over the objection of a minority. 
Railway Labor Act. An act of Congress (1962) designed 
to secure the prompt settlement of disputes between 
interstate railroad companies and their employees. A 
1934 amendment created the National Mediation Board. 
45 U.S.C.A. § 151 et seq. 
Raise. To create; to infer; to create or bring to light by 
construction or interpretation. To cause or procure to 
be produced, bred or propagated. To bring together; to 
get together or obtain for use or service; to gather; to 
collect; to levy, as to raise money by levying taxes; to 
increase income by increasing salary, wages, or commis
sions. To solicit, secure or otherwise obtain funds for a 
given purpose, organization, charity, etc. 
To alter the amount of an instrument such as a 
negotiable instrument by changing the face value to a 
higher amount. See also Raised check; Rasure. 
Raise an issue. To bring pleadings to an issue; to have 
the effect of producing an issue between the parties 
pleading in an action. 
Raise a presumption. To give occasion or ground for a 
presumption; to be of such a character, or to be attend
ed with such circumstances, as to justify an inference or 
presumption of law. Thus, a person's silence, in some 
instances, will "raise a presumption" of his consent to 
what is done. See also Presumption. 
Raised check. A demand negotiable instrument, the 
face amount of which has been increased, generally 
without authority of the drawer and hence fraudulently. 
Such change constitutes a material alteration under 
U.C.C. § 3-4:07(1)(c). See also Rasure. 
Raise revenue. To levy a tax, as a means of collecting 
revenue; to bring together, collect, or levy revenue. 
Raising a promise. The act of the law in extracting 
from the facts and circumstances of a particular transac
tion a promise which was implicit therein, and postulat
ing it as a ground of legal liability. 
Raising a use. Creating, establishing, or calling into 
existence a use. Thus, if a man conveyed land to 
another in fee, without any consideration, equity would 
presume that he meant it to be to the use of himself, 
and would, therefore, raise an implied use for his bene
fit. 
\ 
Raising portions. In old English law, when a landed 
estate was settled on an eldest son, it was generally 
burdened with the payment of specific sums of money in 
favor of his brothers and sisters. A direction to this 
effect was called a direction for "raising portions for 
younger children;" and, for this purpose, it was usual to 
demise or lease the estate to the required portions by a 
sale or mortgage of the same. 
RANKING OF CREDITORS 
Rake-off. Share of profits of transaction or business, 
demanded, paid, or otherwise taken ill�gally. Illegal 
pay-off or bribe, or skimming of profits. 
Ran. Sax. In Saxon and old English law, open theft, or 
robbery. 
Rancho Irrenchow/. Sp. A small collection of men or 
their dwellings; a hamlet. As used, however, in Mexico 
and in the Spanish law formerly prevailing in Califor
nia, the term signifies a ranch or large tract of land 
suitable for grazing purposes where horses or cattle are 
raised, and is distinguished from hacienda, a cultivated 
farm or plantation. 
Range, v. To have or extend in certain direction, to 
correspond in direction or line, or to trend or run. 
Range, n. In the government survey of the United 
States, one of the divisions of a state, consisting of a row 
or tier of townships as they appear on the map. A 
division of a state in the government survey, being a six 
mile wide row of townships, running North and South, 
and used in legal descriptions. 
A tract or district of land within which domestic 
animals in large numbers range for subsistence; an 
extensive grazing ground. The term is used on the 
great plains of the United States to designate a tract 
commonly of many square miles occupied by one or 
different proprietors and distinctively called a cattle 
range, stock range, or sheep range. The animals on a 
range are usually left to take care of themselves during 
the whole year without shelter, except when periodically 
gathered in a round-up for counting and selection, and 
for branding, when the herds of several proprietors run 
together. 
Ranger. In old English law, a sworn officer of the forest, 
whose office chiefly consisted in three points: To walk 
daily through his charge to see, hear, and inquire as 
well of trespasses as trespassers in his bailiwick; to 
drive the beasts of the forest, both of venery and chace, 
out of the deafforested into the forested lands; and to 
present all trespassers of the forest at the next courts 
holden for the forest. 
Person responsible for maintaining and patrolling for
ests. Member of police force in Texas. 
Rank, n. Position in society. Grade of quality or value. 
Grade of official standing. The order or place in which 
certain officers are placed in the army and navy, in 
relation to others. Rank is often used to express some
thing different from office. It then becomes a designa
tion or title of honor, dignity, or distinction conferred 
upon an officer in order to fix his relative position in 
reference to other officers in matters of privilege, prece
dence, and sometimes of command, or by which to deter
mine his pay and emoluments. This is the case with the 
staff officers of the army. Wood v. U. S., 15 Ct.Cl. 151, 
159. 
Rank, adj. Excessive; too large in amount. Indecent. 
Absolute; complete. 
Ranking of creditors. See Preference; Priority.

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RANSOM 
Ransom. The money, price, or consideration paid or 
demanded for redemption of a kidnapped person or 
persons; a payment that releases from captivity. Who
ever knowingly receives, possesses, or disposes of such 
commits a crime. 18 U.S.C.A. § 1202; Model Penal 
Code § 212.1( a). See Kidnapping. 
In international law, the redemption of captured prop
erty from the hands of an enemy, particularly of proper
ty captured at sea. A sum paid or agreed to be paid for 
the redemption of captured property. 
In old English law, a sum of money paid for the 
pardoning of some great offense. The distinction be
tween ransom and amerciament is said to be that ran
som was the redemption of a corporal punishment, while 
amerciament was a fine or penalty directly imposed, and 
not in lieu of another punishment. 4 Bl.Comm. 380. A 
sum of money paid for the redemption of a person from 
captivity or imprisonment. Thus one of the feudal 
"aids" was to ransom the lord's person if taken prisoner. 
2 Bl.Comm. 63. 
Ransom bill. A contract by which a captured vessel, in 
consideration of her release and of safe-conduct for a 
stipulated course and time, agrees to pay a certain sum 
as ransom. 
Rap. Slang for criminal conviction. 
Rape. Unlawful sexual intercourse with a female with
out her consent. The unlawful carnal knowledge of a 
woman by a man forcibly and against her will. The act 
of sexual intercourse committed by a man with a woman 
not his wife and without her consent, committed when 
the woman's resistance is overcome by force or fear, or 
under other prohibitive conditions. State v. Lora, 213 
Kan. 184, 515 P.2d 1086, 1093. 
A male who has sexual intercourse with a female not 
his wife is guilty of rape if: (a) he compels her to submit 
by force or by threat of imminent death, serious bodily 
injury, extreme pain or kidnapping, to be inflicted on 
anyone; or (b) he has substantially impaired her power 
to appraise or control her conduct by administering or 
employing without her knowledge drugs, intoxicants or 
other means for the purpose of preventing resistance; or 
(c) the female is unconscious; or (d) the female is less 
than 10 years old. Model Penal Code, § 213.l. 
Under some statutes, crime embraces unnatural as 
well as natural sexual intercourse; e.g. M.G.L.A. (Mass.) 
c. 277, § 39; and, may include intercourse between two 
males. 
See also Assault with intent to commit rape; Carnal 
abuse; Carnal knowledge; Fresh complaint rule. 
Statutory rape. Modern statutes, which often materially 
change the common-law definition, create an offense 
commonly known as "statutory rape," where the offense 
consists in having sexual intercourse with a female or 
male under statutory age. The offense may be either 
with or without the victim's consent; and mistake as to 
the victim's age is usually no defense. See also Statutory 
rape. 
1260 
In old English law, an intermediate division between a 
shire and a hundred; or a division of a county, contain
ing several hundreds. Apparently peculiar to the coun
ty of Sussex. 
Rape of the forest. In old English law, trespass commit
ted in a forest by violence. 
Rape-reeve. In old English law, the chief officer of a 
rape (q. v.). 
Rape shield law. See Shield laws. 
Rapine /reypayn/. The felonious taking of another 
man's personal property, openly and by violence, against 
his will. 
In the civil law, rapina is defined as the forcible and 
violent taking of another man's movable property with 
the criminal intent to appropriate it to the robber's own 
use. A prretorian action lay for this offense, in which 
quadruple damages were recoverable. 
Rapport a succession. In French law and in Louisiana, 
a proceeding similar to hotchpot; the restoration to the 
succession of such property as the heir may have re
ceived by way of advancement from the decedent, in 
order that an even division may be made among all the 
co-heirs. 
Raptor /rrept;)r/. In old English law, a ravisher. 
Raptu hreredis /rrept(y)uw h;)riyd;)s/. In old English 
law, a writ for taking away an heir holding in socage, of 
which there were two sorts: One when the heir was 
married; the other when he was not. 
Rapuit /rrep(y)uw;)t/. Lat. In old English law, ravished. 
A technical word in old indictments. 
RAR. A revenue agent's report which reflects any ad
justments made by the agent as a result of an audit of 
the taxpayer. The RAR is mailed to the taxpayer along 
with the 3D-day letter which outlines the appellate pro
cedures available to the taxpayer. 
Rasure /reyzh;)r/. The act of scraping, scratching, or 
shaving the surface of a written instrument, for the 
purpose of removing certain letters or words from it. It 
is to be distinguished from "obliteration," as the latter 
word properly denotes the crossing out of a word or 
letter by drawing a line through it with ink. But the 
two expressions are often used interchangeably. See 
also Raise; Raised check. 
Rasus /reys;)s/. In old English law, a rase; a measure of 
onions, containing twenty flones, and each flon is twen
ty-five heads. 
Ratable. Proportional; proportionately rated upon a 
constant ratio adjusted to due relation. According to a 
measure which fixes proportions. It has no meaning 
unless referable to some rule or standard, and never 
means equality or equal division but implies unequal 
division as between different persons. Chenoweth v. 
Nordan & Morris, Tex.Civ.App., 171 S.W.2d 386, 387. 
Ratable estate or property. Property in its quality and 
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1261 
Taxable estate; the real and personal property which 
the legislature designates as "taxable." 
Ratam rem habere /reyt�m rem h�biriy/. Lat. In the 
civil law, to hold a thing ratified; to ratify or confirm it. 
Rate. Proportional or relative value, measure, or degree. 
The proportion or standard by which quantity or value 
is adjusted. Thus, the rate of interest is the proportion 
or ratio between the principal and interest; the build
ings in a town are rated for insurance purposes; i.e., 
classified and individually estimated with reference to 
their insurable qualities. In this sense also we speak of 
articles as being in "first-rate" or "second-rate" condi
tion. 
Amount of charge or payment with reference to some 
basis of calculation. A certain quantity or amount of 
one thing considered in relation to another thing and 
used as standard or measure. George A. Koteen Associ
ates, Inc. v. Fulton Cotton Mills, Inc., D.C.N.Y., 307 
F.Supp. 1396, 1399. 
A fixed relation of quantity, amount or degree; also, a 
charge, valuation, payment or price fixed according to 
ratio, scale or standard; comparative price or amount of 
demands. E. C. Miller Cedar Lumber Co. v. United 
States, Cust. & Pat.App., 86 F.2d 429, 434. Cost per unit 
of a commodity or service. 
In connection with public utilities, a charge to the 
public for a service open to all and upon the same terms. 
The unit cost of a service supplied to the public by a 
utility. When used in connection with public utilities, 
such as a telephone company, generally means price 
stated or fixed for some commodity or service of general 
need or utility supplied to the public measured by specif
ic unit or standard. Bird v. Chesapeake & Potomac Tel. 
Co., D.C.Mun.App., 185 A.2d 917, 918. 
As used in the interstate commerce law, it means the 
net cost to the shipper of the transportation of his 
property; that is to say, the net amount the carrier 
receives from the shipper and retains. Great Northern 
Ry. Co. v. Armour & Co., D.C.Ill., 26 F.Supp. 964, 967. 
See also Commod ity rate; Confiscatory rates; Discount 
rate; Flat rate; Freight rate; Interest rate; Joint through 
rate; Meter rate; Prime interest rate. 
Class rate. A single rate applying to the transportation 
of a number of articles of the. same general character. 
Commodity rate. A rate which applies to the transpor
tation of a specific commodity alone. 
Joint rate. A single rate applied jointly by two carriers 
to cover shipment in which one carrier operates over 
only part of route and other carrier serves remaining 
distance to destination. U.S. v. Southern Motor Carri
ers Rate Conference, Inc., C.A.Ga., 672 F.2d 469, 475. 
Rate base. The amount of investment on which a regu
lated public utility is entitled to an opportunity to earn 
a fair and reasonable return. It represents the total 
investment in or fair value of the used and useful 
property which it necessarily devotes to rendering the 
regulated services. Southern Bell Tel. & Tel. Co. v. 
RATIFICATION 
Public Service Commission, 270 S.C. 590, 244 S.E.2d 278, 
283. See also Rate of return, below. 
Rate of exchange. In commercial law, the actual price 
at which a bill, drawn in one country upon another 
country, can be bought or obtained in the former coun
try at any given time. Also, the price at which the 
money of one country may be exchanged for money of 
another country (e.g. dollars for marks). 
Rate of interest. The charge imposed by a lender of 
money for the use of the money; the borrowing charge. 
Discount rate. Rate charged to member banks by Fed
eral Reserve Board for borrowing money from Federal 
Reserve. 
Legal rate. The statutory maximum rate of interest 
which may be charged for loans. See also Usury. 
Prime rate. The rate of interest charged for high 
quality commercial loans (i.e. rate charged by bank to 
its most credit worthy customers) which is pegged to 
the discount rate established by the Federal Reserve 
Board. This rate tends to establish the rate of interest 
charged for various types of personal and commercial 
loans. 
Rate cap. Provision in loan agreement restricting in
terest rate increases. For example, in an adjustable 
rate mortgage (ARM), a clause which limits interest 
rate increases, on either an annual or a lifetime basis. 
Rate of return. The annual return on an investment, 
generally referred to in terms of a percentage of the 
investment. The percentage by which the rate base is 
multiplied to provide a figure that allows a utility to 
collect revenues sufficient to pay operating expenses and 
attract investment. Providence Gas Co. v. Burman, 119 
R.I., 78, 376 A.2d 687, 695. In the case of common stock, 
is the annual dividend yield as a percentage of the 
purchase price. See also Dividend yield; Fair return on 
investment; Yield. 
Rate tariff. Statement by carrier to possible shippers 
that it will furnish certain services under certain condi
tions for certain price. Union Wire Rope Corporation v. 
Atchison T. & S. F. Ry. Co., C.C.A.Mo., 66 F.2d 965, 966. 
See Tariff. 
Ratification. In a broad sense, the confirmation of a 
previous act done either by the party himself or by 
another; as, confirmation of a voidable act. The affirm
ance by a person of a prior act which did not bind him, 
but which was done or professedly done on his account, 
whereby the act, as to some or all persons, is given effect 
as if originally authorized by him. Askew v. Joachim 
Memorial Home, N.D., 234 N.W.2d 226, 237. The adop
tion by one, as binding upon himself, of an act done in 
such relations that he may claim it as done for his 
benefit, although done under such circumstances as 
would not bind him except for his subsequent assent. It 
is equivalent to a previous authorization and relates 
back to time when act ratified was done, except where 
intervening rights of third persons are concerned. 
In contract law, the act of adopting or confirming a 
previous act which without ratification would not be an

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RATIFICATION 
enforceable contractual obligation, or confirming an ob
ligation by one without the authority to make or do (or 
who was incompetent at the time the contract was 
made). The act of ratification causes the obligation to 
be binding as if such was valid and enforceable in the 
first instance. 
Approval, as by legislatures or conventions, of a con
stitutional amendment proposed by two-thirds of both 
houses of Congress. Approval by the electorate of a 
proposed State constitutional amendment. 
In the law of principal and agent, the adoption and 
confirmation by one person with knowledge of all mate
rial facts, of an act or contract performed or entered into 
in his behalf by another who at the time assumed 
without authority to act as his agent. Essence of "rat
ification" by principal of act of agent is manifestation of 
mental determination by principal to affirm the act, and 
this may be manifested by written word or by spoken 
word or by conduct, or may be inferred from known 
circumstances and principal's acts in relation thereto. 
Express ratifications are those made in express and 
direct terms of assent. Implied ratifications are such as 
the law presumes from the acts of the principal. 
Estoppel and ratification distinguished, see Estoppel. 
See also Acknowledgment; Approval; Confirmation. 
Ratify. To approve and sanction; to make valid; to 
confirm; to give sanction to. To authorize or otherwise 
approve, retroactively, an agreement or conduct either 
expressly or by implication. See Approval; Confirm; Rat
ification. 
Ratihabitio / rret;)h;)bish(iy )ow /. Lat. Confirmation, 
agreement, consent, approbation of a contract. 
Ratihabitio mandato requiparatur /rret;)h;)bish(iy)ow 
mrendeytow ekw;)p;)reyt;)r /. Ratification is equivalent to 
express command. 
Rating. See Credit rating. 
Ratio. Rate; proportion; degree. Reason, or under
standing. Also a cause, or giving judgment therein. 
The number resulting when one number is divided by 
another. 
Ratio decidendi /reysh(iy)ow des;)d€mday /. The ground 
or reason of decision. The point in a case which deter
mines the judgment. 
Ratio est formalis causa consuetudinis /reysh(iy)ow 
est formeyl;)s koz;) konsw;)t(y)uwd;)n;)s/. Reason is the 
formal cause of custom. 
Ratio est legis anima; mutata legis ratione mutatur 
et lex /reysh(iy)ow est liyj;)s ren;)m;); myuwteyt;) liyj;)s 
rreshiyowniy myuwteyt;) et leks/. Reason is the soul o( 
law; the reason of law being changed the law is also 
changed. 
Ratio est radius divini luminis /reysh(iy)ow est 
reyd(i)y;)s d;)vaynay l(y)uwm;)n;)s/. Reason is a ray of 
the divine light. 
Ratio et auctoritas, duo clarissima mundi lumina 
/reysh(iy)ow et oktor;)tres, d(y)uwow klreris;)m;) m;}nday 
1262 
l(y)uwm;)n;)/. Reason and authority, the two brightest 
lights of the world. 
Ratio in jure requitas integra /reysh(iy)ow in juriy 
ekw;)tres inbgr;)/. Reason in law is perfect equity. 
Ratio legis /reysh(iy)ow liyj;)s/. The reason or occasion 
of a law; the occasion of making a law. 
Ratio legis est anima legis /reysh(iy)ow liyj;)s est 
ren;)m;) liyj;)s/. The reason of law is the soul of law. 
Rationabile estoverium / rresh;)neyb;)liy est;)viriy;)m/. 
A Latin phrase equivalent to "alimony." 
Rationabili parte bonorum /rresh;)neyb;)lay partiy 
b;)nor;)m/. A writ that lay for the wife against the 
executors of her husband, to have the third part of his 
goods after his just debts and funeral expenses had been 
paid. 
Rational basis test. Under this test, an appellate court 
will not second-guess the legislature as to the wisdom or 
rationality of a particular statute if there is a rational 
basis for its enactment, and if the challenged law bears 
a reasonable relationship to the attainment of some 
legitimate governmental objective. The same test may 
be applied when a court is reviewing a decision of an 
administrative body because of the expertise of such 
body. It has been said that the protection of the public 
from unwise or improvident statutes is to be found at 
the voting polls or by referendum, not in court. Munn 
v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77. This test does 
not apply, of course, if the statute or decision is uncon
stitutional. 
As a standard of review for statutory enactments 
challenged on equal protection grounds, this test re
quires that classifications created by a state must be 
reasonable, not arbitrary, and must rest on some ground 
of difference having a fair and substantial relation to 
the object of the legislation, so that all persons similarly 
circumstanced shall be treated alike. Aladdin's Castle, 
Inc. v. City of Mesquite, C.A.Tex., 630 F.2d 1029, 1039. 
Rational doubt. A doubt based upon reasonable infer
ences such as are ordinarily drawn by ordinary men in 
the light of their experiences in ordinary life. Hicks v. 
State, 66 Ga.App. 577, 18 S.E.2d 637, 640. See also 
Reasonable doubt. 
Rationalibus divisis /rresh(iy);)neyl;)b;)s d;)vayz;)s/. An 
abolished writ which lay where two lords, in divers 
towns, had seigniories adjoining for him who found his 
waste by little and little to have been encroached upon, 
against the other, who had encroached, thereby to recti
fy their bounds. 
Rational purpose test. See Rational basis test. 
Ratione impotentire /rreshiyowniy imp;)tenshiyiy/. Lat. 
On account of inability. A ground of qualified property 
in some animals ferre naturre; as in the young ones, 
while they are unable to fly or run. 
Ratione materire /rreshiyowniy m;)tiriyiy/. Lat. By 
reason of the matter involved; in consequence of, or 
from the nature of, the subject-matter.

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Ratione personre Irreshiyowniy p;rsowniy I. Lat. By 
reason of the person concerned; from the character of 
the person. 
Ratione privilegii Irreshiyowniy priv;liyjiyay/. Lat. 
This term describes a species of property in wild ani
mals, which consists in the right which, by a peculiar 
franchise anciently granted by the English crown, by 
virtue of its prerogative, one man may have of killing 
and taking such animals on the land of another. 
Rationes Irreshiyowniyz/. In old law, the pleadings in a 
suit. Rationes exercere, or ad rationes stare, to plead. 
Ratione soli Irreshiyowniy sowlay/. Lat. On account of 
the soil; with reference to the soil. Said to be the 
ground of ownership in bees. 
Ratione tenurre Irreshiyowniy t{my�riy/. L. Lat. By 
reason of tenure; as a consequence of tenure. 
Ratio non clauditur loco Ireysh(iy)ow non klod�t;r 
lowkow I. Reason is not confined to any place. 
Ratio potest allegari deficiente lege; sed ratio vera 
et legalis, et non apparens Ireysh(iy)ow powt;st 
rel;geray d;fishiyentiy liyjiy, sed reysh(iy)ow vir; et 
l;geyl�s, et non �prer;nz/. Reason may be alleged when 
law is defective; but it must be true and legal reason, 
and not merely apparent. 
Rattening Irret(;)niIJ/. The offense on the part of mem
bers of a trade union, of causing the tools, clothes, or 
other property of a workman to be taken away or 
hidden, in order to compel him to join the union or cease 
working. It is, in England, an offense punishable by 
fine or imprisonment. 
Ravine. A long, deep, and narrow hollow, worn by a 
stream or torrent of water; a long, deep, and narrow 
hollow or pass through the mountains. 
Ravish. To have carnal knowledge of a woman by force 
and against her will; to rape. State v. Harvey, Mo. 
App., 544 S.W.2d 593, 595. 
Ravisher. One who has carnal knowledge of a woman 
by force and against her consent. Hart v. State, 144 
Tex.Cr.R. 161, 161 S.W.2d 791, 793. 
Ravishment. See Rape; Ravish. 
Ravishment de gard Irrev;shm�nt d� gard/. L. Fr. An 
abolished writ which lay for a guardian by knight's 
service or in socage, against a person who took from him 
the body of his ward. 
Ravishment of ward. In old English law, the marriage 
of an infant ward without the consent of the guardian. 
Raw land. Unimproved land. 
Raw materials. Goods purchased for use in manufac-
turing a product; e.g. wood, steel. 
Raze Ireyz/. To erase. 
Razon I ra(}own I rasown I . In Spanish law, cause (causa). 
ReRA. Resource Conservation and Recovery Act. 42 
U.S.C.A. § 6901 et seq. 
REAL ESTATE INVESTMENT TRUST 
Re lriy/. Lat. In the matter of; in the case of. A term 
of frequent use in designating judicial proceedings, in 
which there is only one party. Thus, "Re Vivian" 
signifies "In the matter of Vivian," or in "Vivian's 
Case." 
R.E.A. Rural Electrification Administration. 
Reacquired stock. See Treasury stock. 
Readjustment. A voluntary reorganization of a corpora
tion which is in financial difficulties by the stockholders 
themselves without the intervention of a receiver or a 
court appointed fiduciary. 
Ready. Prepared for what one is about to do or experi
ence; equipped or supplied with what is needed for some 
act or event; prepared for immediate movement or 
action. Fitted, arranged, or placed for immediate use; 
causing no delay for lack of being prepared or furnished. 
Ready and willing. Implies capacity to act as well as 
disposition; e.g. ready, willing and able buyer. 
Reaffirmation. In bankruptcy, refers to post-petition 
agreement to pay pre-petition obligations. Court ap
proval is required. 
ReaffIrmation agreement. Agreement made prior to 
discharge in bankruptcy to pay certain debts that other
wise would be discharged through the bankruptcy pro
ceeding. Such agreements are subject to certain re
quirements and limitations. 
Real. In civil law, relating to a thing (whether movable 
or immovable), as distinguished from a person. 
Relating to land, as distinguished from personal prop
erty. This term is applied to lands, tenements, and 
hereditaments. 
As to real Action; Asset; Chattel; Contract; Covenant; 
Estate; Issue; Obligation; Party; Privilege; Property; 
Representative; Right; Security; Servitude; Statute, and 
Wrong, see those titles. 
Real authority. Authority manifested by the principal 
to the agent either expressly or by implication. 
Real defenses. Defenses to which a holder in due course 
is subject in enforcing an instrument, especially defenses 
listed in U.C.C. § 3-305(2). 
Real earnings. Wages, salaries, and other earnings 
adjusted for inflation to determine actual changes in 
purchasing power over a given period. 
Real estate. Land and anything permanently affixed to 
the land, such as buildings, fences, and those things 
attached to the buildings, such as light fixtures, plumb
ing and heating fixtures, or other such items which 
would be personal property if not attached. The term is 
generally synonymous with real property. See also 
Property (Real property). 
Real estate broker. See Broker. 
Real estate investment trust (REIT). Financial device 
in which investors purchase shares in a trust the res of 
which is invested in real estate ventures. A company 
that invests in and manages a portfolio of real estate

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REAL ESTATE INVESTMENT TRUST 
with the majority of its income distributed to the share
holders. A closed-end mutual fund that invests in real 
estate or mortgages. See also Trust; Massachusetts trust. 
Real estate listing. See Listing. 
Real Estate Settlement Procedures Act. See RESPA. 
Real estate syndicate. A loose aggregation of persons 
who invest in real estate for common profits and gains. 
Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. 
Real evidence. Evidence furnished by things them
selves, on view or inspection, as distinguished from a 
description of them by the mouth of a witness; e.g., the 
physical appearance of a person when exhibited to the 
jury, marks, scars, wounds, fingerprints, etc.; also, the 
weapons or implements used in the commission of a 
crime, and other inanimate objects, and evidence of the 
physical appearance of a place (the scene of an accident 
or of the commission of a crime or of property to be 
taken under condemnation proceedings) as obtained by a 
jury when they are taken to view it. That type of 
evidence which is provided by producing for inspection 
at trial a particular item rather than having witnesses 
describe it. State v. Barfield, 298 N.C. 306, 259 S.E.2d 
510, 533. See also Demons trative evidence. 
Realignment. The process by which the court, for deter
mining diversity jurisdiction, realigns the parties as 
plaintiffs and defendants according to the ultimate in
terest of each. 
Real income. A measure of the real purchasing power 
of nominal income; real income is nominal income ad
justed for changes in the general price level, or income 
corrected for inflation or deflation. See also Real earn
ings. 
Real injury. In the civil law, an injury arising from an 
unlawful act, as distinguished from a verbal injury, 
which was done by words. See Injury. 
Realize. To convert any kind of property into money; 
but especially to receive the returns from an invest
ment. 
Realized. Term, in tax law, means received, paid, debt
ed or incurred, in accordance with method of accounting 
authorized for use by taxpayer. Altsuler v. Peters, 190 
Neb. 113, 206 N.W.2d 570, 577. 
Realized gain or loss. Gain (or loss) resulting from an 
identifiable event, such as a sale or an exchange of 
property. The amount of realized gain from the sale or 
other disposition of property is the excess of the amount 
realized over the adjusted basis of the property; the 
amount of realized loss is the excess of the property's 
adjusted basis over the amount realized. I.R.C. § 1001. 
See also Recognized gain or loss. 
Real law. Real estate law. The body of laws relating to 
real property. This use of the term is popular rather 
than technical. 
In the civil law, a law which relates to specific proper
ty, whether mOIVable or immovable. 
Realm freimf. A kingdom; a country. 
1264 
Real money. Money which has real metalic, intrinsic 
value as distinguished from paper currency, checks and 
drafts. 
Real party in interest. Person who will be entitled to 
benefits of action if successful, that is, the one who is 
actually and substantially interested in subject matter 
as distinguished from one who has only a nominal, 
formal, or technical interest in or connection with it. 
Maryland Cas. Co. v. King, Okl., 381 P.2d 153, 156. 
Under the traditional test, a party is a "real party in 
interest" if it has the legal right under the applicable 
substantive law to enforce the claim in question. White 
Hall Bldg. Corp. v. Profexray Division of Litton Indus
tries, Inc., D.C.Pa., 387 F.Supp. 1202, 1204. Real party 
in interest within rule that every civil action in federal 
courts must be prosecuted in name of real party in 
interest is the one, who, under applicable substantive 
law, has legal right to bring suit, Boeing Airplane Co. v. 
Perry, C.A.Kan., 322 F.2d 589, 591; and not necessarily 
person who will ultimately benefit from the recovery. 
First Nat. Bank of Chicago v. Mottola, D.C.Ill., 302 
F.Supp. 785, 791, 792. See Fed.R.Civil P. 17. 
Under Fed.R.Civil P. 17(a), a guardian, executor, 
bailee, and the like, may sue in his own name without 
joining the party for whom the action is brought. 
See also Parties. 
Real property. See Property (Real property). 
Real things (or things real). In common law, such 
things as are permanent, fixed, and immovable, which 
cannot be carried out of their place; as lands and 
tenements. Things substantial and immovable, and the 
rights and profits annexed to or issuing out of them. 
See also Real estate. 
Realtor. "Realtor" is a federally registered collective 
membership mark owned by the National Association of 
Realtors and properly used only in reference to mem
bers of the association. 
Realty. A brief term for real property or real estate; 
also for anything which partakes of the nature of real 
property. See Property (Real property). 
Reapportionment. A realignment or change in legisla
tive districts brought about by changes in population 
and mandated by the constitutional requirement of 
equality of representation (i.e. one person, one vote 
mandate). A new apportionment of seats in the House 
of Representatives among States "according to their 
respective numbers", is required by Art. 1, § 2 of the 
U.S. Constitution after every decennial census. See 
Westberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 
L.Ed.2d 481. A similar requirement as to State legisla
tive seats is found in many State constitutions. See 
Census. 
A state statute which violates the rights of persons to 
vote on a one man-one vote apportionment is contrary to 
the equal protection clause of the 14th Amend., U.S. 
Const. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 
L.Ed.2d 663.

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1265 
Reappraiser. A person who, in certain cases, is appoint
ed to make a revaluation or second appraisement of 
imported goods at the customhouse. 
Reargument. Purpose of reargument is to demonstrate 
to court that there is some decision or principle of law 
which would have a controlling effect and which has 
been overlooked, or that there has been a misappre
hension of facts. In re Hooker's Estate, 173 Misc. 515, 
18 N.Y.S.2d 107, 110. See also Rehearing; Retrial. 
Reason. A faculty of the mind by which it distinguishes 
truth from falsehood, good from evil, and which enables 
the possessor to deduce inferences from facts or from 
propositions. Also an inducement, motive, or ground for 
action, as in the phrase "reasons for an appeal." 
Reasonable. Fair, proper, just, moderate, suitable un
der the circumstances. Fit and appropriate to the end 
in view. Having the faculty of reason; rational; gov
erned by reason; under the influence of reason; agree
able to reason. Thinking, speaking, or acting according 
to the dictates of reason. Not immoderate or excessive, 
being synonymous with rational, honest, equitable, fair, 
suitable, moderate, tolerable. Cass v. State, 124 Tex. 
Cr.R. 208, 61 S.W.2d 500. 
As to reasonable Aids; Care; Diligence; Doubt; Notice, 
Skill, and Time, see those titles. See also Fair. 
Reasonable act. Such as may fairly, justly, and reason
ably be required of a party. 
Reasonable and probable cause. Such grounds as 
justify any one in suspecting another of a crime, and 
placing him in custody thereon. It is a suspicion found
ed upon circumstances sufficiently strong to warrant 
reasonable man in belief that charge is true. Henry v. 
U. S., 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Com. v. 
Stewart, 358 Mass. 747, 267 N.E.2d 213. See also Proba
ble cause. 
Reasonable belief. "Reasonable belief' or "probable 
cause" to make an arrest without a warrant exists when 
facts and circumstances within arresting officer's knowl
edge, and of which he had reasonably trustworthy infor
mation, are sufficient in themselves to justify a man of 
average caution in belief that a felony has been or is 
being committed. State v. Johnson, 249 La. 950, 192 
So.2d 135, 141. See also Probable cause; Reasonable 
and probable cause. 
The words "reasonably believes" are used throughout 
the Restatement, Second, Torts to denote the fact that 
the actor believes that a given fact or combination of 
facts exists, and that the circumstances which he knows, 
or should know, are such as to cause a reasonable man 
so to believe. Sec. 11. 
Reasonable care. That degree of care which a person of 
ordinary prudence would exercise in the same or similar 
circumstances. Pierce v. Horvath, 142 Ind.App. 278, 233 
N.E.2d 811, 815. That degree of care which ordinarily 
prudent and competent person engaged in same line of 
business or endeavor should exercise under similar cir
cumstances. Warner v. Kiowa County Hospital Author
ity, Okl.App., 551 P.2d 1179, 1188. Due care, or ordi-
REASONABLE DOUBT 
nary care, under all the circumstances. Failure to exer
cise such care is ordinary negligence. See also Care. 
Reasonable cause. As basis for arrest without warrant, 
is such state of facts as would lead man of ordinary care 
and prudence to believe and conscientiously entertain 
honest and strong suspicion that person sought to be 
arrested is guilty of committing a crime. People v. 
Knutson, 60 C.A.3d 856, 131 Cal.Rptr. 846, 850. See also 
Probable cause; Reasonable and probable cause; Rea
sonable belief. 
Reasonable certainty, rule of. This rule permits recov
ery of damages only for such future pain and suffering 
as is reasonably certain to result from the injury re
ceived. Prettyman v. Topkis, Del., 3 A.2d 708, 710. To 
authorize recovery under such rule for permanent inju
ry, permanency of injury must be shown with reason
able certainty, which is not mere conjecture or likeli
hood or ever a probability of such injury. State ex reI. 
Kansas City Public Service Co. v. Shain, 350 Mo. 316, 
165 S.W.2d 428, 430. 
To establish damages for lost profits due to breach of 
contract with "reasonable certainty" does not mean that 
such damages must be established in exact pecuniary 
amount; evidence must, however, lay some foundation 
enabling fact finder to make fair and reasonable esti
mate of amount of damage. Della Ratta, Inc. v. Ameri
can Better Community Developers, Inc., 38 Md.App. 119, 
380 A.2d 627, 641. 
Reasonable compensation. Sum which would reason
ably compensate person for injuries, for pain and suffer
ing, for past, present and future expenses reasonably 
necessary or incidental to his efforts to alleviate his 
injuries and in all pecuniary losses suffered, or to be 
suffered, as result of inability to engage in his usual 
occupation. Kavanagh v. Butorac, 140 Ind.App., 139, 
221 N.E.2d 824, 828. 
Reasonable doubt. The standard used to determine the 
guilt or innocence of a person criminally charged. To be 
guilty of a crime, one must be proved guilty "beyond a 
reasonable doubt." Reasonable doubt which will justify 
acquittal is doubt based on reason and arising from 
evidence or lack of evidence, and it is doubt which 
reasonable man or woman might entertain, and it is not 
fanciful doubt, is not imagined doubt, and is not doubt 
that juror might conjure up to avoid performing un
pleasant task or duty. U. S. v. Johnson, C.A.N.Y., 343 
F.2d 5, 6. Reasonable doubt is such a doubt as would 
cause prudent men to hesitate before acting in matters 
of importance to themselves. U. S. v. Chas. Pfizer & Co., 
Inc., D.C.N.Y., 367 F.Supp. 91, 101. Doubt based on 
reason which arises from evidence or lack of evidence. 
Johnson v. Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 
1624, 32 L.Ed.2d 152. See also Beyond a reasonable 
doubt; Doubt. 
Reasonable expectation doctrine. Doctrine of "rea
sonable expectations" is that when ambiguities exist in 
insurance policy they are to be resolved in accordance 
with the reasonable expectations of the insured. Aut<r 
Owners Ins. Co. v. Jensen, C.A.N.D., 667 F.2d 714, 721.

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REASONABLE FORCE 
Reasonable force. That degree of force which is not 
excessive and is appropriate in protecting oneself or 
one's property. When such force is used, a person is 
justified and is not criminally liable, nor is he liable in 
tort. 
Reasonable grounds. Reasonable grounds within stat
ute authorizing arrest without warrant by officer who 
has reasonable grounds for believing that person to be 
arrested has committed criminal offense means substan
tially probable cause. Beyer v. Young, 32 Colo.App. 273, 
513 P.2d 1086, 1088. See also Probable cause; Reason
able and probable cause; Reasonable cause. 
Reasonable inference rule. Vnder this rule the trier of 
fact may consider as evidence not only the testimony 
and real evidence presented at trial but also all inferenc
es which may be reasonably drawn, though they are not 
necessary inferences. 
Reasonable man doctrine or standard. The standard 
which one must observe to avoid liability for negligence 
is the standard of the reasonable man under all the 
circumstances, including the foreseeability of harm to 
one such as the plaintiff. 
Reasonable needs of the business. A term used in 
connection with the accumulated earnings tax. A corpo
ration may avoid a penalty on the unreasonable accu
mulation of earnings if it can show that there is a 
reasonable business need, and a definite plan for the use 
of the funds. I.R.C. § 535. 
Reasonable notice. While the term is relative, State v. 
Boles, 5 Conn.Cir. 22, 240 A.2d 920, it is notice which is 
plainly calculated to apprise the appropriate person of 
its contents. See also Notice. 
Reasonable part. In old English law, that share of a 
man's goods which the law gave to his wife and children 
after his decease. 2 BLComm. 492. 
Reasonable suspicion. Such suspicion which will justi
fy officer, for Fourth Amendment purposes, in stopping 
defendant in public place is quantum of knowledge suffi
cient to induce ordinarily prudent and cautious man 
under circumstances to believe criminal activity is at 
hand. People v. Johnson, 56 A.D.2d 766, 392 N.Y.S.2d 
294, 295. It must be based on specific and articulable 
facts, which, taken together with rational inferences 
from those facts, reasonably warrant intrusion. Curry 
v. State, Tex.App. 14 Dist., 699 S.W.2d 331, 333. See 
also Probable cause; Reasonable cause. 
Reasonable time. Such time as is necessary convenient
ly to do what a contract requires to be done, and as soon 
as circumstances will permit. Ridglea Interests, Inc. v. 
General Lumber Co., Tex.Civ.App., 343 S.W.2d 490, 493. 
In determining what is a "reasonable time" for perform
ance, court should consider such factors as relationships 
between parties, subject matter of contract, and time 
that a person of ordinary diligence and prudence would 
use under similar circumstances. Glen Cove Marina, 
Inc. v. Vessel Little Jennie, D.C.N.Y., 269 F.Supp. 877, 
879. 
1266 
Any time which is not manifestly unreasonable may 
be fixed by agreement of the parties, and what is reason
able depends on the nature, purpose and circumstances 
of each case. V.C.C. § 1-204(1)(2). Acceptance of an 
offer must be made within a reasonable time if no time 
is specified. V.C.C. §§ 2-206(2), 207. See also V.C.C. 
§ 2-513(1) (buyer's right to inspection of goods); § 2-610 
(anticipatory repudiation); § 2-508(2) (substitution of 
conforming goods for rejected goods). 
Where contract does not fix a time for performance, 
the law allows "reasonable time" for performance, de
fined as such time as is necessary, conveniently, to do 
what the contract requires to be done, as soon as circum
stances will permit. Houston County v. Leo L. Lan
dauer & Associates, Inc., Tex.Civ.App., 424 S.W.2d 458, 
463. 
See also Time. 
Reasonable use theory. A riparian owner may make 
reasonable use of his water for either natural or artifi
cial wants. However, he may not so use his rights so as 
to affect the quantity or quality of water available to a 
lower riparian owner. Tucker v. Bodoian, 376 Mass. 
907, 384 N.E.2d 1195. See also Common enemy doctrine. 
Reassessment. Re-estimating the value of a specific 
property or all property in a given area for tax assess
ment purposes. 
Reassurance. Exists where an insurer procures the 
whole or a part of the sum which he has insured (i.e., 
contracted to pay in case of loss, death, etc.) to be 
insured again to him by another insurer. See also 
Reinsurance. 
Rebate. Discount; deduction or refund of money in 
consideration of prompt payment. A deduction from a 
stipulated premium on a policy of insurance, in pur
suance of an antecedent contract. A deduction or draw
back from a stipulated payment, charge, or rate (as, a 
rate for the transportation of freight by a railroad), not 
taken out in advance of payment, but handed back to 
the payer after he has paid the full stipulated sum. 
Refund of portion of purchase price made by manufac
turer to consumer to induce purchase of product. Such 
is commonly obtained by sending proof of purchase to 
manufacturer. 
Portion of a transportation charge refunded to a ship
per. Rebates are forbidden by the Interstate Commerce 
Act. 
Tax rebate is an amount returned (i.e. refunded) to the 
taxpayer after he has made full payment of the tax. 
See also Discount; Elkins Act; Kickback; Refund. 
Rebellion. Deliberate, organized resistance, by force 
and arms, to the laws or operations of the government, 
committed by a subject. Crashley v. Press Pub. Co., 74 
App.Div. 11 8, 77 N.Y.S. 711. It is a federal crime to 
incite, assist, or engage in any rebellion or insurrection 
against the authority of the Vnited States or the laws 
thereof. 18 V.S.C.A. § 2383. 
In old English law, also a contempt of a court mani
fested by disobedience to its process, particularly of the

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1267 
court of chancery. If a defendant refused to appear, 
after attachment and proclamation , a "commission of 
rebellion" issued against him. 3 Bl.Comm. 444. 
Rebellious assembly. In old English law, a gathering 
of twelve persons or more, intending, going about, or 
practicing unlawfully and of their own authority to 
change any laws of the realm; or to destroy the inclo
sure of any park or ground inclosed, banks of fish-ponds, 
pools, conduits, etc., to the intent the same shall remain 
void; or that they shall have way in any of the said 
grounds; or to destroy the deer in any park, fish in 
ponds, coneys in any warren, dovehouses, etc.; or to 
burn sacks of corn; or to abate rents or prices of 
victuals, etc. See also Un lawful assembly. 
Rebus sic stantibus /riyb;}s sik strent;}b;}s/. Lat. At 
this point of affairs; in these circumstances. A name 
given to a tacit condition, said to attach to all treaties, 
that they shall cease to be obligatory so soon as the state 
of facts and conditions upon which they were founded 
has substantially changed. 
Rebut. In pleading and evidence, to defeat, refute, or 
take away the effect of something. When a plaintiff in 
an action produces evidence which raises a presumption 
of the defendant's liability, and the defendant adduces 
evidence which shows that the presumption is ill-found
ed, he is said to "rebut it." See Rebuttable presumption; 
Rebuttal evidence. 
Rebuttable presumption. In the law of evidence, a 
presumption which may be rebutted by evidence. Oth
erwise called a "disputable" presumption. A species of 
legal presumption which holds good until evidence con
trary to it is introduced. Beck v. Kansas City Public 
Service Co., Mo.App., 48 S.W.2d 213, 215. It shifts 
burden of proof. Heiner v. Donnan, 285 U.S. 312, 52 
S.Ct. 358, 362, 76 L.Ed. 772. It gives particular effect to 
certain group of facts in absence of further evidence, 
and presumption provides prima facie case which shifts 
to defendant the burden to go forward with evidence to 
contradict or rebut fact presumed. GuIle v. Boggs, Fla., 
174 So.2d 26, 28. And which standing alone will sup
port a finding against contradictory evidence. Lieber v. 
Rigby, 34 Cal.App.2d 582, 94 P.2d 49, 50. See also 
Presumption. 
Rebuttal evidence. Evidence given to explain, repel, 
counteract, or disprove facts given in evidence by the 
opposing party. That which tends to explain or contra
dict or disprove evidence offered by the adverse party. 
Layton v. State, 261 Ind. 251, 301 N.E.2d 633, 636. 
Rebuttal occurs during the trial stage where evidence is 
given by one party to refute evidence introduced by the 
other party. Evidence which is offered by a party after 
he has rested his case and after the opponent has rested 
in order to contradict the opponent's evidence. See also 
Rejoinder. 
Also evidence given in opposition to a presumption of 
fact or a prima facie case; in this sense, it may be not 
only counteracting evidence, but evidence sufficient to 
counteract, that is, conclusive. See Rebuttable presump
tion. 
R,ECAPTURE 
Rebutter. In common law pleading, a defendant's an
swer of fact to a plaintiff's surrejoinder; the third plead
ing in the series on the part of the defendant. 
Recall. A method of removal of official in which power 
of removal is either granted to or reserved by the people. 
Jones v. Harlan, Tex.Civ.App., 109 S.W.2d 251, 254. 
Right or procedure by which a public official may be 
removed from office before the end of his term of office 
by a vote of the people to be taken on the filing of a 
petition signed by required number of qualified voters. 
Wallace v. Tripp, 358 Mich. 668, 101 N.W.2d 312, 314. 
Recall may also be applicable to judges. 
Under federal Consumer Product Safety Act, govern
ment has power to require recall of unsafe products for 
repair, replacement or refund. See 15 U.S.C.A. 
§ 2064(c)-(f). 
To summon a diplomatic minister back to his home 
court, at the same time depriving him of his office and 
functions. 
Recall a judgment. To revoke, cancel, vacate, or re
verse a judgment for matters of fact. When it is an
nulled by reason of errors of law, it is said to be 
"reversed." 
Recant. To withdraw or repudiate formally and public
ly. Pradlik v. State, 131 Conn. 682, 41 A.2d 906, 907. 
Recapitalization. A process whereby stock, bonds or 
other securities of a corporation are adjusted or restruc
tured as to type, amount, income or priority. A restruc
turing of the capital of a corporation through amend
ment of the articles of incorporation or a merger with a 
subsidiary or parent corporation. Recasting of capital 
structure (e.g. exchange of bonds for stock) within frame
work of existing corporation. Helvering v. Southwest 
Consol. Corporation, La., 315 U.S. 194, 203, 62 S.Ct. 546, 
552, 86 L.Ed. 789. See also Reorganization. 
Recaption. At common law, a retaking, or taking back. 
A species of remedy by the mere act of the party injured 
(otherwise termed "reprisal"), which happens when any 
one has deprived another of his property in goods or 
chattels personal, or wrongfully detains one's wife, child, 
or servant. In this case, the owner of the goods, and the 
husband, parent, or master may lawfully claim and 
retake them, wherever he happens to find them, so it be 
not in a riotous manner, or attended with a breach of 
the peace. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 
612, 10 L.Ed. 1060. It also signifies the taking a second 
distress of one formerly distrained during the plea 
grounded on the former distress. See also Distraint; 
Distress; Ejectment; Repossession. 
Also, formerly, a writ to recover damages for him 
whose goods, being distrained for rent in service, etc., 
are distrained again for the same cause, pending the 
plea in the county court, or before the justice. 
Recapture. To recover (by IRS) the tax benefit of a 
deduction or a credit previously taken by tax payer. 
See, e.g., Recapture of depreciation.

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RECAPTURE 
The taking from an enemy, by a force friendly to the 
former owner, of a vessel previously taken for prize by 
such enemy. 
Recapture clause. In contracts, a provision for deter
mining rates in the event that the contract rate is more 
favorable than anticipated. Also, a provision in a con
tract for recovering possession of goods. As used in 
leases, a clause giving the lessor a percentage of profits 
above a fixed amount of rent; or, in a percentage lease, 
a clause granting landlord right to terminate lease if 
tenant fails to realize minimum sales. 
Recapture of depreciation. Upon the sale or disposi
tion of depreciable property, the portion of the gain 
which represents the accelerated depreciation previously 
taken is taxed as ordinary income. Since Tax Reform 
Act of 1986, there 'is no monetary difference because 
capital gains and ordinary income are taxed at the same 
rate. The recapture of depreciation rules do not apply 
when the property is disposed of at a loss. 
Recapture of investment tax: credit. When investment 
credit property is disposed of or ceases to be used in the 
trade or business of the taxpayer, some of the invest
ment tax credit claimed on such property may be recap
tured as additional tax liability. The amount of the 
recapture (by IRS) is the difference between the amount 
of the credit originally claimed and what should have 
been claimed in light of the length of time the property 
was actually held or used for qualifying purposes. See 
Investment tax credit. 
Receditur a placitis juris, potius quam injurire et 
delicta maneant impunita /r:lsiyd:lt:lr ey plci!s:lt:ls jur:ls 
powsh(iY):ls kwrem injuriyiy et d:llikt:l mreniY:lnt 
impyu.wn:lt:l/. Positive rules of law (as distinguished 
from maxims or conclusions of reason) will be receded 
from (given up or dispensed with), rather than that 
crimes and wrongs should remain unpunished. 
Receipt. Written acknowledgment of the receipt of mon
ey, or delivery of a thing of value, without containing 
any affirmative obligation upon either party to it; a 
mere admission of a fact, in writing. And, being a mere 
acknowledgment of payment, is subject to parol explana
tion or contradiction. 
A writing which acknowledges taking or receiving 
either money or goods which have been paid or have 
been delivered. Manley v. Nelson, 50 Hawaii 484, 524, 
443 P.2d 155, 158. Act of receiving; also, the fact of 
receiving or being received; that which is received. 
That which comes in, in distinction from what is expend
ed, paid out, sent away, and the like. State v. Texas Co., 
173 Tenn. 154, 116 S.W.2d 583, 584. 
It requires delivery or change of possession from seller 
to buyer, and can only be accomplished, in absence of 
tortious appropriation, by affirmative assent and con
duct of seller. Gerner v. Vasby, 75 Wis.2d 660, 250 
N.W.2d 319, 324, 97 A.L.R.3d 897. 
Receipt of goods. Taking physical possession of goods. 
U.C.C. § 2-103(1)(c). 
Warehouse receipt. See that title. 
1268 
Receiptor. A name formerly given in some of the states 
to a person who received from the sheriff goods which 
the latter had seized under process of garnishment, on 
giving to the sheriff a bond conditioned to have the 
property forthcoming when demanded, or when execu
tion issues. 
Receivable. That which is due and owing a person or 
company (e.g. account receivable). In bookkeeping, the 
name of an account which reflects a debt due. 
Receive. To take into possession and control; accept 
custody of; collect. 
To "receive" stolen property, means acquisition of 
control in sense of physical dominion or apparent legal 
power to dispose of property and envisages possession or 
control as an essential element. U. S. v. Walker, D.C. 
Tenn., 384 F.Supp. 262, 263. See also Receiving stolen 
goods or property. 
Receiver. A person appointed by a court for the purpose 
of preserving property of a debtor pending an action 
against him, or applying the property in satisfaction of a 
creditor's claim, whenever there is danger that, in the 
absence of such an appointment, the property will be 
lost, removed or injured. An indifferent person between 
the parties to a cause, appointed by the court to receive 
and preserve the property or fund in litigation, and 
receive its rents, issues, and profits, and apply or dispose 
of them at the direction of the court when it does not 
seem reasonable that either party should hold them. A 
fiduciary of the court, appointed as an incident to other 
proceedings wherein certain ultimate relief is prayed. 
He is a trustee or ministerial officer representing court, 
and all parties in interest in litigation, and property or 
fund intrusted to him. 
Formerly, in bankruptcy proceedings, a person em
powered to take charge of the assets of an insolvent 
person or business and preserve them for sale and 
distribution to creditors. This function is now per
formed by a bankruptcy trustee. 
A custodian of assets involved in litigation and title to 
assets remain in owner or owners who are parties in 
proceedings which lead to appointment of receiver who 
is managing agent of property for benefit of parties. A. 
S. S. Wrecking Co. v. Guaranty Bank & Trust Co., 2 
Ill.App.3d 66, 275 N.E.2d 724, 728. 
As to receivers appointed by federal courts, see Fed.R. 
Civil P. 66. 
See also Receivership; Trustee. 
Receiver pendente lite /r:lsiYV:lr pend€mtiy laytiy/. A 
person appointed to take charge of the fund or property 
to which the receivership extends while the case re
mains undecided. The title to the property is not 
changed by the appointment. The receiver acquires no 
title, but only the right of possession as the officer of the 
court. The title remains in those in whom it was vested 
when the appointment was made. The object of the 
appointment is to secure the property pending the litiga
tion, so that it may be appropriated in accordance with 
the rights of the parties, as they may be determined by 
the judgment in the action. Title Guarantee & Trust

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1269 
Co. v. 457 Schenectady Ave., 235 App.Div. 509, 257 
N.Y.S. 413, 417. 
Receiver 's certificate. A non-negotiable evidence of 
debt, or debenture, issued by authority of a court of 
chancery, as a first lien upon the property of a debtor 
corporation in the hands of a receiver. 
Receivership. Legal or equitable proceeding in which a 
receiver is appointed for an insolvent corporation, part
nership or individual to preserve its assets for benefit of 
affected parties. The state or condition of a corporation, 
partnership, financial institution, or individual over 
whom a receiver has been appointed for protection of its 
assets and for ultimate sale and distribution to creditors. 
See also, Receiver; Trustee. Compare Ban kruptcy pro
ceedings. 
Regulatory receivership. Receivership by a governmen
tal agency; e.g., of an insolvent financial institution. 
Receiving stolen goods or property. Criminal offense 
of receiving any property with the knowledge that it has 
been feloniously, or unlawfully stolen, taken, extorted, 
obtained, embezzled, or disposed of. 
Receiving stolen property-a statutory crime separate 
from the crime involved in the stealing of the property
is defined in the typical statute as the receiving of stolen 
property knowing that it is stolen. Although most stat
utes do not specifically mention it, the receiver must, in 
addition to knowing the property is stolen, intend to 
deprive the owner of his property. Four elements are 
necessary to constitute crime of "receiving stolen goods"; 
(1) the property must be received; (2) it must, at time of 
its receipt, be stolen property; (3) the receiver must 
have guilty knowledge that it is stolen property; and (4) 
his intent in receiving it must be fraudulent. Fletcher 
v. State, 231 Md. 190, 189 A.2d 641, 643. 
A person is guilty of theft if he purposely receives, 
retains, or disposes of movable property of another 
knowing that it has been stolen, or believing that it has 
probably been stolen, unless the property is received, 
retained, or disposed with purpose to restore it to the 
owner. "Receiving" means acquiring possession, control 
or title, or lending on the security of the property. 
Model Penal Code, § 223.6. For various federal offenses, 
see 18 U.S.C.A. § 2313 (receipt of stolen vehicles), 
§ 2315 (receipt of stolen goods, money, etc.). 
To "receive" stolen property, means acquisition of 
control in sense of physical dominion or apparent legal 
power to dispose of property and envisages possession or 
control as an essential element. U.S. v. Walker, D.C. 
Tenn., 384 F.Supp. 262, 263. 
Recens insecutio lriysenz ins;}kyuwsh(iy)ow/. In old 
English law, fresh suit; fresh pursuit. Pursuit of a thief 
immediately after the discovery of the robbery. See 
Fresh pursuit. 
Receptus /r;}sept�s/. Lat. In the civil law, the name 
sometimes given to an arbitrator, because he had been 
received or chosen to settle the differences between the 
parties. 
Recess. In the practice of the courts, a short interval or 
period of time during which the court suspends business, 
RECIPROCAL PROMISES 
but without adjourning. The period between sessions of 
court. A temporary ajournment of a trial or a hearing 
that occurs after a trial or hearing has commenced. 
State v. Charles, La., 350 So.2d 595, 598. 
In legislative practice, the interval, occurring in conse
quence of an adjournment, between the sessions of the 
same continuous legislative body; not the interval be
tween the final adjournment of one body and the con
vening of another at the next regular session. 
Compare Continuance. 
Recession. The act of ceding or falling back. Term is 
commonly used with reference to a temporary set-back 
or slow-down in the economic growth of a nation, but 
less severe than a depression. 
Recessus maris Ir�ses;}s mer�s/. Lat. In old English 
law, a going back; reliction or retreat of the sea. 
Recht Irekt/. Ger. Right; justice; equity; the whole 
body of law; unwritten law; law; also a right. 
Recidivist Ir;}sid�v;}st/. A habitual criminal; a criminal 
repeater. An incorrigible criminal. One who makes a 
trade of crime. See also Habitual criminal. 
Reciprocal. Given or owed mutually as between two 
persons; interchanged. Reciprocal obligations are those 
due from one person to another and vice versa. See also 
Reciprocity. 
Reciprocal contract. A contract, the parties to which 
enter into mutual engagements. A mutual or bilateral 
contract. 
Reciprocal dealing arrangement. As included within 
prohibitions of Sherman Act and Clayton Act exists 
when two parties face each other as both buyer and 
seller and one party offers to buy other party's goods, 
but only if second party buys other goods from first 
party. Spartan Grain & Mill Co. v. Ayers, C.A.Ga., 581 
F.2d 419, 424. See also Tying arrangement. 
Reciprocal Enforcement of Support Act. Uniform 
law, adopted in most all states, by which a court in the 
jurisdiction of a wife or mother can commence proceed
ings for support against the husband or father residing 
in another state. The court in the jurisdiction where he 
lives issues process for his appearance and an order of 
support is made. This is transmitted to the court of the 
initiating state. 
Reciprocal laws. Laws of one state which extend rights 
and privileges to citizens of another state if such state 
grants similar privileges to citizens of the first state; e.g. 
Reciprocal Enforcement of Support Act. See also Comi
ty. 
Reciprocal or interinsurance exchange. Group or 
association of persons cooperating through an attorney 
in fact for purpose of insuring themselves and each 
other. In re Minnesota Ins. Underwriters, D.C.Minn., 
36 F.2d 371, 372. 
Reciprocal promises. Mutual promises exchanged be
tween two parties. See also Reciprocal contract.

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RECIPROCAL TRADE AGREEMENTS 
Reciprocal trade agreements. Agreement between two 
countries providing for interchange of goods between 
them at lower tariffs and better terms than exist be
tween one such country and other countries; e.g. U.S. 
Reciprocal Trade Agreements Act of 1934. 
Reciprocal trusts. Mutual trusts in one of which A is 
beneficiary of trust established by B and B is beneficiary 
of trust settled by A. Commonly these trusts are estab
lished by husband and wife. 
Reciprocal wills. Wills made by two or more persons in 
which they make reciprocal testamentary provisions in 
favor of each other, whether they unite in one will or 
each executes a separate one. This may be done by one 
will, in which case the will is both joint and reciprocal, 
or it may be done by separate wills. Father Flanagan's 
Boys' Home v. Turpin, 252 Iowa 603, 106 N.W.2d 637, 
639. 
Reciprocity. Mutuality. The term is used to denote the 
relation existing between two states when each of them 
gives the subjects of the other certain privileges, on 
condition that its own subjects shall enjoy similar privi
leges at the hands of the latter state. Term may also 
refer to practice, prohibited by Sherman Antitrust Act, 
whereby a company, overtly or tacitly, agrees to conduct 
one or more aspects of its business so as to confer a 
benefit on the other party to the agreement, the consid
eration being the return promise in kind by the other 
party, and it is basically a policy of favoring one's 
customers in purchasing commodities sold by them. 
The legality of reciprocity agreements under the anti
trust laws is analyzed in much the same way as the 
legality of typing arrangements. Stavrides v. Mellon 
Nat. Bank & Trust Co., D.C.Pa., 353 F.Supp. 1072, 1077. 
See also Reciprocal; Tying arrangement. 
Recision of contract. See Rescission of contract. 
Recital. The formal statement or setting forth of some 
matter of fact, in any deed or writing, in order to 
explain the reasons upon which the transaction is found
ed. The recitals are situated in the premises of a deed, 
that is, in that part of a deed between the date and the 
habendum, and they usually commence with the formal 
word cCwhereas." 
In pleading, the statement of matter as introductory 
to some positive allegation, beginning in declarations 
with the words, uFor that whereas. " 
Recite. To state in a written instrument facts connected 
with its inception, or reasons for its being made. Also to 
quote or set forth the words or the contents of some 
other instrument or document; as, to urecite" a statute. 
Reck. To take heed; have a care, mind, heed. 
Reckless. Not recking; careless, heedless, inattentive; 
indifferent to consequences. According to circumstanc
es it may mean desperately heedless, wanton or willful, 
or it may mean only careless, inattentive, or negligent. 
For conduct to be ureckless" it must be such as to evince 
disregard of, or indifference to, consequences, under 
circumstances involving danger to life or safety to oth
ers, although no harm was intended. Duckers v. Lynch, 
1270 
204 Kan. 649, 465 P.2d 945, 948. See also Recklessly; 
Recklessness; Wanton. 
Reckless disregard of rights of others. As used in 
automobile guest law, means the voluntary doing by 
motorist of an improper or wrongful act, or with knowl
edge of existing conditions, the voluntary refraining 
from doing a proper or prudent act when such act or 
failure to act evinces an entire abandonment of any 
care, and heedless indifference to results which may 
follow and the reckless taking of chance of accident 
happening without intent that any occur. Boswell v. 
State, 250 Ind. 607, 238 N .E.2d 283, 286. 
uReckless disregard" so as to show actual malice in 
pUblication may be shown to exist where there exists 
sufficient evidence to permit conclusion that defendant 
in fact entertained serious doubts as to truth of his 
publication or where there are obvious reasons to doubt 
veracity of informant or accuracy of his reports. Pape 
v. Time, Inc., D.C.Ill., 294 F.Supp. 1087, 1088. 
Reckless driving. Operation of motor vehicle manifest
ing reckless disregard of possible consequences and in
difference to others' rights. To establish statutory of
fense of reckless driving requires proof that defendant in 
management of motor vehicle intentionally did some
thing with knowledge that injury to another was proba
ble or acted with wanton and reckless disregard for 
safety of others and in reckless disregard of conse
quences of acts. People v. Schumacher, 194 C.A.2d 335, 
14 Cal.Rptr. 924, 926. Within meaning of statutory 
prohibition is a conscious and intentional driving which 
driver knows, or should know, creates unreasonable risk 
of harm to others, even though he has no actual intent 
to harm. State v. Saulnier, 109 RI. 115, 280 A.2d 85, 
87. 
Reckless endangerment. A statutory offense commit
ted by creating a substantial risk of death or serious 
injury to another. State v. O'Neal, 23 Wash.App. 899, 
600 P.2d 570. 
Reckless homicide. A species of statutory homicide in 
some states characterized by a wilful and wanton dis
regard of consequences and resulting in death. In some 
states, it may amount to manslaughter. See Homicide 
(Ve hicular homicide). 
Recklessly. A person acts recklessly with respect to a 
material element of an offense when he consciously 
disregards a substantial and unjustifiable risk that the 
material element exists or will result from his conduct. 
The risk must be of such a nature and degree that, 
considering the nature and purpose of the actor's con
duct and the circumstances known to him, its disregard 
involves a gross deviation from the standard of conduct 
that a law-abiding person would observe in the actor's 
situation. Model Penal Code, § 2.02(c). 
Person acts urecklessly" within meaning of require
ment for commission of involuntary manslaughter when 
he consciously disregards substantial and unjustifiable 
risk that his acts are such as are likely to cause death or 
great bodily harm to some individual and where such 
disregard constitutes gross deviation from standard of

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1271 
care which reasonable person would exercise in such 
situation. People v. Griffith, 14 Ill.Dec. 393, 56 Ill. 
App.3d 747, 372 N.E.2d 404, 407. 
See also Reckless. 
Reckless misconduct. A person is guilty of reckless 
misconduct when he intentionally does an act, or fails to 
do an act in violation of his duty, with knowledge of 
serious danger to others involved in it or of facts which 
would disclose such danger to a reasonable man. State 
v. Vertefeuille, 3 Conn.Cir. 508, 217 A.2d 725, 726. Such 
misconduct means that the actor intentionally does an 
act or fails to do an act which it is his duty to another to 
do, knowing or having reason to know of facts which 
would lead a reasonable man to conclude that such 
conduct creates an unreasonable risk of bodily harm to 
the other. Saaybe v. Penn Cent. Transp. Co., D.C.Pa., 
438 F.Supp. 65, 69. 
Recklessness. Rashness; heedlessness; wanton con
duct. The state of mind accompanying an act, which 
either pays no regard to its probably or possibly injuri
ous consequences, or which, though forseeing such con
sequences, persists in spite of such knowledge. Reck
lessness is a stronger term than mere or ordinary negli
gence, and to be reckless, the conduct must be such as to 
evince disregard of or indifference to consequences, un
der circumstances involving danger to life or safety of 
others, although no harm was intended. Blackburn v. 
Colvin, 191 Kan. 239, 380 P.2d 432, 437. 
Reclaim. To claim or demand back; to ask for the 
return or restoration of a thing; to insist upon one's 
right to recover that which was one's own, but was 
parted with conditionally or mistakenly; as, to reclaim 
goods which were obtained from one under false pre
tenses. 
Reclaimed animals. Those that are made tame by art, 
industry, or education, whereby a qualified property 
may be acquired in them. 
Reclamation. The process of bringing economically un
usable land to a higher dollar value by physically chang
ing it; e.g. draining a swamp, irrigating desert, replant
ing a forest. 
A banking term used to describe a draft or check set 
aside because of an error in the listing of the check in 
clearing house balance. 
Reclamation Act. The Reclamation Act of 1902 (43 
V.S.C.A. § 391 et seq.), authorized the Secretary of the 
Interior to locate, construct, operate, and maintain 
works for the storage, diversion, and development of 
waters for the reclamation of arid and semiarid lands in 
the Western States. To perform these functions, the 
Secretary in July 1902 established a Reclamation Ser
vice in the Geological Survey. In March 1907 the Recla
mation Service was separated from the Survey, and in 
June 1923 the name was changed to Bureau of Reclama
tion. The basic objectives of the Federal Reclamation 
program, as administered by the Bureau of Reclamation, 
are to assist the States, local governments, and other 
Federal agencies to stabilize and stimulate local and 
RECOGNIZED 
regional economies, enhance and protect the environ
ment, and improve the quality of life through develop
ment of water and related land resources throughout 
the 17 contiguous Western States and Hawaii. 
Reclamation Bureau. See Reclamation Act. 
Reclamation district. A subdivision of a state created 
by legislative authority, for the purpose of reclaiming 
swamp, marshy, or desert lands within its boundaries 
and rendering them fit for habitation or cultivation, 
generally with funds raised by local taxation or the issue 
of bonds, and sometimes with authority to make rules or 
ordinances for the regulation of the work in hand. 
Reclusion /r:;)kl(y)uwzh:m/. In French law and in Loui
siana, incarceration as a punishment for crime; a tem
porary, afflictive, and infamous punishment, consisting 
in being confined at hard labor in a penal institution, 
and carrying civil degradation. Solitary confinement in 
prison. 
Recognition. Ratification; confirmation; an acknowl
edgment that something done by another person in one's 
name had one's authority. 
Recognition of gain or loss. See Recognized gain or 
loss. 
Recognitione adnullanda per vim et duritiem facta 
/rek:;)gnishiy6wniy redn:;)lrend:;) p�r vim et d(y):;)rish(iy):;)m 
frekt:;)/ . A writ to the justices of the common bench for 
sending a record touching a recognizance, which the 
recognizor suggests was acknowledged by force and du
ress; that if it so appears the recognizance may be 
annulled. 
Recognitors /r:;)k6gn:;)t:;)rz/. In English law, the name 
by which the jurors impaneled on an assize are known. 
See Recognition. 
The word is sometimes used as meaning the person 
who enters into a recogn izance, being thus another form 
of recognizor. 
Recognizance /r:;)k6gn:;)z:;)ns/. An obligation entered 
into before a court or magistrate duly authorized for 
that purpose whereby the recognizor acknowledges that 
he will do some act required by law which is specified 
therein. The act of recognizing is performed by the 
recognizor's assenting to the words of the magistrate 
and acknowledging himself to be indebted to a certain 
party in a specific amount to be paid if he fails to 
perform the requisite act. State v. Vinal, 113 R.I. 426, 
325 A.2d 81, 83. 
An obligation undertaken by a person, generally a 
defendant in a criminal case, to appear in court on a 
particular day or to keep the peace. It runs to the court 
and may not require a bond. In this case it is called 
personal recognizance. 18 V.S.C.A. § 3142; Fed.R. 
Crim.P. 46. See Release on own recognizance. 
Recognize /rek:;)gnayz/. To try; to examine in order to 
determine the truth of a matter. Also to enter into a 
recognizance. 
Recognized. Actual and publicly known.

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RECOGNIZED GAIN OR LOSS 
Recognized gain or loss. The portion of realized gain 
or loss that is subject to income taxation. See also 
Realized gain or loss. 
Recognized market. Under Uniform Commercial Code 
provision allowing secured party to dispose of collateral 
without notification if collateral is type of property 
customarily sold in "recognized market," "recognized 
market" is one in which sales involve many items so 
similar that individual differences are nonexistent or 
immaterial, where haggling and competitive bidding are 
not primary factors in each sale, and where prices paid 
in actual sales of comparable property are currently 
available by quotation, for example, the New York Stock 
Exchange and bond and commodity markets. First Nat. 
Bank of Minneapolis v. Kehn Ranch, Inc., S.D., 394 
N.W.2d 709, 714. 
Recognizee. He to whom one is bound in a recogni
zance. 
Recognizor. He who enters into a recognizance. 
Recollection. The act of recalling something to mind. 
In evidence, a person may use almost anything to re
fresh his recollection of an event in order to testify and 
the evidence then is his testimony not the document 
which has refreshed his recollection. 
A memorandum or record concerning a matter about 
which a witness once had knowledge but now has insuf
ficient recollection to enable him to testify fully and 
accurately, shown to have been made or adopted by the 
witness when the matter was fresh in his memory and 
to reflect that knowledge correctly is not excluded by 
the hearsay rule. If admitted, the memorandum or 
record may be read into evidence but may not itself be 
received as an exhibit unless offered by an adverse 
party. See Fed.Evid.Rules 612 and 803(5). 
See also Past recollection recorded; Recorded past rec
ollection; Refreshing the memory. 
Recommend. To advise or counsel. Kirby v. Nolte, 351 
Mo. 525, 173 S.W.2d 391. See Counsel. 
Recommendation. In feudal law, a method of convert
ing allodial land into feudal property. The owner of the 
allod surrendered it to the king or a lord, doing homage, 
and received it back as a benefice or feud, to hold to 
himself and such of his heirs as he had previously 
nominated to the superior. 
The act of one person in giving to another a favorable 
account of the character, responsibility, or skill of a 
third. 
Recommendation refers to an action which is advisory 
in nature rather than one having any binding effect. 
People v. Gates, 41 C.A.3d 590, 116 Cal.Rptr. 172, 178. 
Letter of recommendation. A writing whereby one per
son certifies concerning another that he is of good char
acter, solvent, possessed of commercial credit, skilled in 
his trade or profession, or otherwise worthy of trust, aid, 
or employment. It may be addressed to an individual or 
to whom it may concern, and is designed to aid the 
person commended in obtaining credit, employment, etc. 
See Letter of credit. 
1272 
Recommendatory. Precatory, advisory, or directory. 
Recommendatory words in a will are such as do not 
express the testator's command in a peremptory form, 
but advise, counsel, or suggest that a certain course be 
pursued or disposition made. 
Recompense /rek�mpens/. A reward or payment for 
services; remuneration paid for goods or other property. 
Recompense or recovery in value. That part of the 
judgment in a "common recovery" by which the tenant 
is declared entitled to recover lands of equal value with 
those which were warranted to him and lost by the 
default of the vouchee. 2 Bl.Comm. 358-359. 
Reconciliation /rek�nsiliyeysh�n/. The renewal of am
icable relations between two' persons who had been at 
enmity or variance; usually implying forgiveness of 
injuries on one or both sides. In law of domestic rela
tions, a voluntary resumption of marital relations in the 
fullest sense. Keller v. Keller, 122 Cal.App. 712, 10 P.2d 
541. It means something more than mere resumption of 
cohabitation and observance of civility, and compre
hends a fresh start and genuine effort by both parties to 
avoid pitfalls originally causing separation. Gutmann 
v. Gutmann, 70 N.J.Super. 266, 175 A.2d 470, 474. 
In bookkeeping, it is the practice of adjusting the bank 
statement with the depositor's books. Also, a statement 
showing the consistency of two or more other financial 
statements. See also Reconciliation statement. 
Reconciliation statement. In accounting, a statement 
prepared to bring two or more accounts which show a 
discrepancy into agreement. 
Reconduction. In the civil law, a renewing of a former 
lease; relocation. 
Reconsideration. As normally used in context of ad
ministrative adjudication "reconsideration" implies re
examination, and possibly a different decision by the 
entity which initially decided it. Kerr-McGee Nuclear 
Corp. v. New Mexico Environmental Imp. Bd., App., 97 
N.M. 88, 637 P.2d 38, 42. 
Reconsignment. A change in the terms of a consign
ment after the goods are in transit. Privilege extended 
by carriers to shippers under which goods may be for
warded to a point other than their original destination, 
without removal from the car and at the through rate 
from initial point to that of final delivery. Southern 
Pac. Co. v. Brown, Alcantar & Brown, Inc., C.A.Tex., 409 
F.2d 1331, 1332. 
Reconstruct. To construct again, to rebuild, either in 
fact or idea, or to remodel. To form again or anew as in 
the imagination or to restore again as an entity the 
thing which was lost or destroyed. City of Seattle v. 
Northern Pac. Ry. Co., 12 Wash.2d 247, 121 P.2d 382, 
386. See also Recollection. 
Reconstruction. Act of constructing again. It presup
poses the nonexistence of the thing to be reconstructed, 
as an entity; that the thing before existing has lost its 
entity. Miller Hatcheries v. Buckeye Incubator Co., 
C.C.A.Mo., 41 F.2d 619.

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1273 
Also the name commonly given to the process of 
reorganizing, by acts of congress and executive action, 
the governments of the states which had passed ordi
nances of secession, and of re-establishing their constitu
tional relations to the national government, restoring 
their representation in congress, and effecting the neces
sary changes in their internal government, after the 
close of the civil war. 
Recontinuance. Used to signify that a person has re
covered an incorporeal hereditament of which he had 
been wrongfully deprived. 
Reconvenire /riykonv�nayriy/. Lat. In the canon and 
civil law, to make a cross-demand upon the actor, or 
plaintiff. 
Reconvention. In the civil law, an action by a defen
dant against a plaintiff in a former action; a cross-bill 
or litigation. 
The term is used in practice in the states of Louisiana 
and Texas, derived from the reconventio of the civil law. 
Reconvention is not identical with set-off, but more 
extensive. Pacific Exp. Co. v. Malin, 132 U.S. 531, 10 
S.Ct. 166, 33 L.Ed. 450. 
Reconventional demand. Any plea by a defendant 
which constitutes more than mere defense and amounts 
to counterclaim. Alfonso v. Ruiz, La.App., 2 So.2d 480, 
483, 484. 
Reconversion. That imaginary process by which a prior 
constructive conversion is annulled and the property 
restored in contemplation of equity to its original actual 
quality. 
Reconveyance. The return of title and ownership in 
real estate to a party that previously held title to it. 
Record, v. To commit to writing, to printing, to inscrip
tion, or the like. To make an official note of; to write, 
transcribe, or enter in a book, file, docket, register, 
computer tape or disc, or the like, for the purpose of 
preserving authentic evidence of. To transcribe a doc
ument, or enter the history of an act or series of acts, in 
an official volume, for the purpose of giving notice of the 
same, of furnishing authentic evidence, and for preser
vation. Shimmel v. People, 108 Colo. 592, 121 P.2d 491, 
493. 
Record, n. A written account of some act, court proceed
ing, transaction, or instrument, drawn up, under author
ity of law, by a proper officer, and designed to remain as 
a memorial or permanent evidence of the matters to 
which it relates. People ex reL Simons v. Dowling, 84 
Misc. 201, 146 N.Y.S. 919, 920. A memorandum public 
or private, of what has been done, ordinarily applied to 
public records, in which sense it is a written memorial 
made by a public officer. Nogueira v. State, 123 Tex. 
Cr.R. 449, 59 S.W.2d 831. A computer printout qualifies 
as a "record" within business records exception to hear
say rule. American Oil Co. v. Valenti, 179 Conn. 349, 
426 A.2d 305, 309. 
The act or fact of recording or being recorded; reduc
tion to writing as evidence, also, the writing so made. A 
register, a family record, official contemporaneous writ-
RECORD 
ing; an authentic official copy of document entered in 
book or deposited in keeping of officer designated by 
law; an official contemporaneous memorandum stating 
the proceedings of a court or official copy of legal papers 
used in a case. Shimmel v. People, 108 Colo. 592, 121 
P.2d 491, 493. 
Records are generally admissable under Fed.Evid.R. 
803. See also Rules 901 and 902 (authentication), and 
Rule 1005 (public records). See Business entry rule. 
The term "records" means accounts, correspondence, 
memorandums, tapes, discs, papers, books, and other 
documents or transcribed information of any type, 
whether expressed in ordinary or machine language. 
Securities Exchange Act of 1934, § 3. 
See also Business (Business records), Congressional 
Record; Court (Court of record); Defective record; Dock
et; File; Freedom of In formation Act; Judgment book; 
Making record; Minu tes book; Official record; Official 
Records Act; Of record; Public record; Sealing of records; 
Shop-book rule; Whole record test. 
Arrest record. See Arrest record. 
Complete record. Such encompasses clerk's record, 
record of proceedings and all evidence. Springfield Coal 
Co. v. Meade, Ky., 430 S.W.2d 652, 653. 
Court record of proceedings. The official collection of all 
the trial pleadings, exhibits, orders and word-for-word 
testimony that took place during the triaL The 
"record" includes pleadings, the process, the verdict, the 
judgment and such other matters as by some statutory 
or other recognized method have been made a part of it. 
C. J. Tower & Sons of Buffalo, Inc. v. U. S., Cust.Ct., 347 
F.Supp. 1388, 1389. 
A written memorial of all the acts and proceedings in 
an action or suit, in a court of record. The official and 
authentic history of the cause, consisting in entries of 
each successive step in the proceedings, chronicling the 
various acts of the parties and of the court, couched in 
the formal language established by usage, terminating 
with the judgment rendered in the cause, and intended 
to remain as a perpetual and unimpeachable memorial 
of the proceedings and judgment. Such record in civil 
cases consists primarily of the "civil docket" (Ffd.R.Civil 
P. 79); and in criminal cases of the "criminal docket" 
(Fed.R.Crim.P. 55). See also Docket; Transcript, and 
Record on appeal, below. 
Courts of record. A court whose proceedings are record
ed. Also a court of general jurisdiction. States vary as 
to the requirements and strata of courts qualifying as 
courts of record. See also Court (Court of record). 
Debts of record. Those which appear to be due by the 
evidence of a court of record; such as a judgment, 
recognizance, etc. 
Diminution of record. Incompleteness of the record sent 
up on appeaL See Diminution. 
Face of record. See Face of record. 
Judicial record. A precise history of civil or criminal 
proceeding from commencement to termination. See 
Docket.

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RECORD 
Matter of record. See that title. 
Nul tiel record. See Nul. 
Of record. See that title. 
Public record. A record, memorial of some act or trans
action, written evidence of something done, or doc
ument, considered as either concerning or interesting 
the public, affording notice or information to the public, 
or open to public inspection. Any "writing" prepared, 
owned, used or retained by any agency in pursuance of 
law or in connection with the transaction of public 
business; and, "writings" means all documents, papers, 
letters, maps, books, photographs, films, sound record
ings, magnetic or other tapes, electronic data-processing 
records, artifacts or other documentary material, regard
less of physical form or characteristics. 
Record commission. The name of a board of commis
sioners appointed for the purpose of searching out, clas
sifying, indexing, or publishing the public records of a 
state or county. 
Record date. The date on which a person must be 
registered as a shareholder on the stock book of a 
company in order to receive a declared dividend or, 
among other things, to vote on company affairs. Divi
dends are paid on payment date to those who own the 
stock on the record date. 
Record of nisi prius. In England, formerly an official 
copy or transcript of the proceedings in an action, en
tered on parchment and "sealed and passed" as it is 
termed, at the proper office. It served as a warrant to 
the judge to try the cause, and was the only document at 
which he could judicially look for information as to the 
nature of the proceedings and the issues joined. 
Record on appeal. In the practice of appellate tribunals, 
refers to the history of the proceedings on the trial of 
the action below (with the pleadings, offers, objections to 
evidence, rulings of the court, exceptions, charge, etc.), 
in so far as the same appears in the record furnished to 
the appellate court in the paperbooks or other tran
scripts. Hence, derivatively, it means the aggregate of 
the various judicial steps taken on the trial below, in so 
far as they were taken, presented, or allowed in the 
formal and proper manner necessary to put them upon 
the record of the court. This is the meaning in such 
phrases as "no error in the record," "contents of the 
record," "outside the record," etc. 
The official documentation of all the proceedings in 
court in a particular case, including the pleadings, ex
hibits and commonly the transcript of the examination 
of witnesses; may also include docket entries. Fed.R. 
App.P. 10(a). 
Record owner. The person in whose name stock shares 
are registered on the records of the corporation. A 
record owner is treated as the owner of the shares by 
the corporation whether or not that person is the benefi
cial owner of the shares. As regards real property 
ownership, is person in whose name title appears on 
official records in contrast with one who claims title 
through unrecorded documents. 
1274 
Records of a corporation. Such records include the 
transcript of its charter and by-laws, the minutes of its 
meetings-the books containing the accounts of its offi
cial doings and the written evidence of its contracts and 
business transactions. U. S. v. Louisville & N. R. Co., 
236 U.S. 318, 35 S.Ct. 363, 368, 59 L.Ed. 598. 
Trial by record. In old English law, a species of trial 
adopted for determining the existence or non-existence 
of a record. When a record was asserted by one party to 
exist, and the opposite party denied its existence under 
the form of a traverse that there was no such record 
remaining in court as alleged, and issue was joined 
thereon, this was called an "issue of nul tiel record," and 
in such case the court awarded a trial by inspection and 
examination of the record. tJ pon this the party affirm
ing its existence was bound to produce it in court on a 
day given for the purpose, and, if he failed to do so, 
judgment was given for his adversary. 
Title of record. A title to real estate, evidenced and 
provable by one or more conveyances or other instru
ments all of which are duly entered on the public land 
records. See also Abstract of title. 
Recordare lriykorderiy/. A writ to bring up judgments 
of justices of the peace. 
Recordari facias loquelam lriykorderay feysh(iy)�s 
l�kwiyl�m/. In old English practice, a writ by which a 
suit or plaint in replevin could be removed from a 
county court to one of the courts of Westminster Hall. 
So termed from the emphatic words of the old writ, by 
which the sheriff was commanded to cause the plaint to 
be recorded, and to have the record before the superior 
court. 
Recorda sunt vestigia vetustatis et veritatis Ir�k6rd� 
s:)nt vestij(iy)� vet�steyt�s et vehr�teyt�s/. Records are 
vestiges of antiquity and truth. 
Recordation. The act or process of recording an instru
ment such as a deed or mortgage in a public registry. 
Also, the system of recording court proceedings by sten
ography, voice-writing or tapes. 
Recordatur Iriykordeyt�r/. In old English practice, an 
entry made upon a record, in order to prevent any 
alteration of it. An order or allowance that the verdict 
returned on the nisi prius roll be recorded. 
Recorded past recollection. In evidence, a document 
which was prepared at a time when the events recorded 
were fresh in the mind and memory of the person 
preparing it may be admissible as an exception to the 
hearsay rule if, as a preliminary matter, the judge is 
satisfied that it is the work of the witness and that it is 
the original unless such is excused under the best evi
dence rule. See Fed.Evid.R. 612 and 803(5). See also 
Past recollection recorded; Recollection. 
Recorder, v. L. Fr. In Norman law, to recite or testify 
on recollection what had previously passed in court. 
This was the duty of the judges and other principal 
persons who presided at the placitum; thenc e called 
"recordeurs. "

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Recorder, n. A magistrate, in the judicial systems of 
some of the states, who has a criminal jurisdiction 
analogous to that of a police judge or other committing 
magistrate, and usually a limited civil jurisdiction, and 
sometimes authority conferred by statute in special 
classes of proceedings. An officer appointed to make 
record or enrolment of deeds and other legal instru
ments authorized by law to be recorded. A local govern
ment officer in whose office deeds, mortgages, liens, and 
other instruments are registered. 
Record, estoppel by. An "estoppel by record" is the 
preclusion to deny the truth of a matter set forth in a 
record, whether judicial or legislative, also to deny the 
facts adjudicated by a court of competent jurisdiction. 
An estoppel by record cannot be invoked where allega
tions or recitals did not conclude pleader in prior pro
ceeding. Blackburn v. Blackburn, Tex.Civ.App., 163 
S.W.2d 251, 255. It bars a second action between the 
same parties on an issue necessarily raised and decided 
in the first action. Woods v. Duval, 151 Kan. 472, 99 
P.2d 804, 808. It exists only as between the same 
parties, or those in privity with them, in same case on 
same issues. Smith v. Maine, 145 Misc. 521, 260 N.Y.S. 
425. The doctrine prevents a party not only from liti
gating again what was actually litigated in the former 
case, but litigating what might have been litigated 
therein. 
Recording acts. Statutes enacted in the several states 
relative to the official recording of deeds, mortgages, 
security interests, etc. as notice to creditors, purchasers, 
encumbrancers, and others interested. 
Notice acts. That type of recording statute provides that 
a person with notice of an unrecorded instrument is 
barred from claiming priority as of the date on which he 
received the instrument. See also Notice race statutes; 
Notice recording statutes. 
Race acts. The first to record regardless of notice of an 
unrecorded deed earlier in time has the better rights 
under a race type recording statute. See Pure race 
statute. 
Race-notice acts. The first to record in the chain of title 
without notice of a prior unrecorded deed or mortgage 
has the better rights under a race-notice type statute. 
See Race-notice recording statutes. 
Record notice. When an instrument of conveyance or a 
mortgage is recorded in the appropriate public office, it 
is constructive notice of its contents to the whole world. 
Recordum Ir:)k6rd:)m /. A record; a judicial record. It 
is used in the phrase prout patet per recordum, which is 
a formula employed, in pleading, for reference to a 
record, signifying as it appears from the record. 
Recoup, or recoupe Ir:)kuwp /. To deduct, defalk, dis
count, set off, or keep back; to withhold part of a 
demand. See Recoupment. 
Recoupment Ir:)kuwpm:)nt l. To recover a loss by a 
subsequent gain. In pleading, to set forth a claim 
against the plaintiff when an action is brought against 
one as a defendant. A keeping back something which is 
RECOVER 
due, because there is an equitable reason to withhold it. 
A right of the defendant to have a deduction from the 
amount of the plaintiffs damages, for the reason that 
the plaintiff has not complied with the cross-obligations 
or independent covenants arising under the same con
tract. It implies that plaintiff has cause of action, but 
asserts that defendant has counter cause of action grow
ing out of breach of some other part of same contract on 
which plaintiffs action is founded, or for some cause 
connected with contract. 
The right of the defendant to have the plaintiffs 
monetary claim reduced by reason of some claim the 
defendant has against the plaintiff arising out of the 
very contract giving rise to plaintiffs claim. First Nat. 
Bank of Louisville v. Master Auto Service Corp., C.A. 
Va., 693 F.2d 308, 310. Unlike a counterclaim, recoup
ment only reduces plaintiffs claim; it does not allow 
recovery of affirmative money judgment for any excess 
over that claim. Tuloka Affiliates, Inc. v. Moore, 275 
S.C. 199, 268 S.E.2d 293, 295. 
Recoupment is a purely defensive matter growing out 
of transaction constituting plaintiffs cause of action and 
is available only to reduce or satisfy plaintiffs claim and 
permits of no affirmative judgment. Schroeder v. 
Prince Charles, Inc., Mo., 427 S.W.2d 414, 419. 
Recoupment is the equivalent of the old counterclaim 
in which a defendant sets up a claim owed to him by the 
plaintiff though it need not arise out of the same trans
action as the plaintiffs claim and the defendant may not 
recover more than the amount claimed by the plaintiff 
against him. Under rules practice, recoupment has 
been replaced by the modern counterclaim. See also 
Counter claim. 
Set-off distinguished. A "set-off' is a demand which the 
defendant has against the plaintiff, arising out of a 
transaction extrinsic to the plaintiffs cause of action, 
whereas a "recoupment" is a reduction or rebate by the 
defendant of part of the plaintiffs claim because of a 
right in the defendant arising out of the same transac
tion. Zweck v. D P Way Corp., 70 Wis.2d 426, 234 
N.W.2d 921, 924. See also Set-off. 
Recourse. To recur. The right of a holder of a nego
tiable instrument to recover against a party secondarily 
liable, e.g., prior endorser or guarantor. Therefore, if a 
prior endorser signs without recourse, he exempts him
self from liability for payment, but not from all warran
ties. U.C.C. § 3-414(1). See also Non recourse; Nonre
course loan; Recourse loan; Without recourse; With re
course. 
Recourse loan. Loan on which an endorser or guaran
tor is liable in event of default of borrower. See also 
Recourse; With recourse. Compare Nonr ecourse loan. 
Recover. To get or obtain again, to collect, to get 
renewed possession of; to win back. To regain, as lost 
property, territory, appetite, health, courage. In a nar
rower sense, to be successful in a suit, to collect or 
obtain amount, to have judgment, to obtain a favorable 
or final judgment, to obtain in any legal manner in 
contrast to voluntary payment. Olds v. General Acc.

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Fire and Life Assur. Corp., 67 Cal.App.2d 812, 155 P.2d 
676, 680. See also Recovery. 
Recoveree. In old conveyancing, the party who suffered 
a common recovery. 
Recoverer. The demandant in a common recovery, after 
judgment has been given in his favor. 
Recovery. In its most extensive sense, the restoration 
or vindication of a right existing in a person, by the 
formal judgment or decree of a competent court, at his 
instance and suit, or the obtaining, by such judgment, of 
some right or property which has been taken or with
held from him. St. Paul Fire & Marine Ins. Co. v. Wood, 
242 Ark. 879, 416 S.W.2d 322, 327. This is also called a 
CCtrue" recovery, to distinguish it from a Ufeigned" or 
ucommon" recovery. 
The obtaining of a thing by the judgment of a court, as 
the result of an action brought for that purpose. The 
amount finally collected, or the amount of judgment. In 
re Lahm, 179 App.Div. 757, 167 N.Y.S. 217, 219. To be 
successful in a suit to obtain a judgment. Garza v. 
Chicago Health Clubs, Inc., D.C.Ill., 347 F.Supp. 955, 
962. 
See Common recovery; Recoupment; Repossession; 
Restitution. 
Final recovery. The final judgment or verdict in an 
action. See Judgment; Verdict. 
Recreant Irekriy: mtl. Coward or craven. The word 
pronounced by a combatant in the trial by battel, when 
he acknowledged himself beaten. 3 Bl.Comm. 340. 
Recrimination Ir�krim�neys h:m/. A charge made by 
an accused person against the accuser; in particular a 
counter-charge of adultery or cruelty made by one 
charged with the same offense in a suit for divorce, 
against the person who has charged him or her. Under 
doctrine of Hrecrimination", if conduct of both husband 
and wife has been such as to furnish grounds for divorce 
neither is entitled to relief. Mason v. Mason, 276 Ala. 
265, 160 So.2d 881, 882. A showing by the defendant of 
any cause of divorce against the plaintiff, in bar of the 
plaintiffs cause of divorce. And to bar divorce, com
plainant's misconduct need not be of equal degree with 
that of defendant, but must be of same general charac
ter. The defense of recrimination has been abolished in 
many states with the enactment of Uno-fault" divorce 
statutes. 
Recross examination. An examination of a witness by 
a cross-examiner subsequent to a redirect examination 
of the witness. 
Rectification. The act or process by which something is 
made right or by which a wrong is adjusted. See also 
Restitution. 
Rectification of boundaries. In old English law, the 
action to rectify or ascertain the boundaries of two 
adjoining pieces of land. 
Rectification of register. In old English law, the pro
cess by which a person whose name is wrongly entered 
1276 
on (or omitted from) a register may compel the keeper of 
the register to remove (or enter) his name. 
Rectify. To correct or define something which is errone
ous or doubtful. Thus, where the parties to an agree
ment have determined to embody its terms in the appro
priate and conclusive form, but the instrument meant to 
effect this purpose (e.g., a conveyance, settlement, etc.) 
is, by mutual mistake, so framed as not to express the 
real intention of the parties, an action may be brought 
to have it rectified. 
Rectitudo Irekt�t(y)uwdow /. Lat. Right or justice; le
gal dues; tribute or payment. 
Recto, breve de Ibriyviy diy rektow I. A common law 
writ of right, which was of so high a nature that as other 
writs in real actions were only to recover the possession 
of the land, etc., in question, this aimed to recover the 
seisin and the property, and thereby both the rights of 
possession and property were tried together. 
Recto de advocatione ecclesire Irektow diy redv�key
shiy6wniy �kliyziyiy /. A writ which lay at common law, 
where a man had right of advowson of a church, and, 
the parson dying, a stranger had presented. 
Recto de custodia terrre et hreredis I rektow diy 
k�st6wd(i)y� tehriy et h�riy d�s/. A writ of right of ward 
of the land and heir. Abolished. 
Recto de dote Irektow diy d6wti y/. A writ of right of 
dower, which lay for a widow who had received part of 
her dower, and demanded the residue, against the heir 
of the husband or his guardian. Abolished. 
Recto de dote unde nihil habet Irektow diy d6wtiy 
�ndiy nay(h)�l heyb�t /. A writ of right of dower where
of the widow had nothing, which lay where her deceased 
husband, having divers lands or tenements, had assured 
no dower to his wife, and she thereby was driven to sue 
for her thirds against the heirs or his guardian. Abol
ished. 
Recto de rationabili parte I rektow diy rresh�neyb�lay 
partiy I. A writ of right, of the reasonable part, which 
lay between privies in blood; as brothers in gavelkind, 
sisters, and other coparceners, for land in fee-simple. 
Recto quando (or quia) dominus remisit curiam Irek
tow kw6ndow d6m�n�s r�mayz�t kyUriy�mrkway� 0 I. A 
writ of right, when or because the lord had remitted his 
court, which lay where lands or tenements in the seigno
ry of any lord were in demand by a writ of right. 
Rector. In ecclesiastical law, one who rules or governs. 
A name given to certain officers of the Roman Catholic 
Church. 
The spiritual head and presiding officer of church. A 
clergyman elected by the members of the parish to have 
permanent charge of it. He is the official head of the 
parish and ex officio head of all parochial organizations. 
In English law, he that has full possession of a paro
chial church. A rector (or parson) has, for the most 
part, the whole right to all the ecclesiastical dues in his 
parish; while a vicar has an appropriator over him, 
entitled to the best part of the profits, to whom the vicar

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1277 
is, in effect, perpetual curate, with a standing salary. 1 
Bl.Comm. 384, 388. 
Rectorial tithes Irekt6riy:}1 taydz/. Great or predial 
tithes. 
Rector provincire Irekt:}r pr:}vinshiyiy/. Lat. In Ro
man law, the governor of a province. 
Rector sinecure Irekt:}r sayniykyuriy/. A rector of a 
parish who has not the cure of souls. 
Recto sur disclaimer Irektow s:}r d:}skleym:}r/. An 
abolished writ on disclaimer. 
Rectum Irekt:}m/. Lat. Right; also a trial or accusa
tion. 
Rectum esse Irekt:}m esiy/. To be right in court. 
Rectum rogare Irekt:}m r:}geriy/. To ask for right; to 
petition the judge to do right. 
Rectum, stare ad I sreriy red rekt:}m/. To stand trial or 
abide by the sentence of the court. 
Rectus I rekt:}s I . In the old law of descents, right; up
right; the opposite of obliquus (q.v .). 
Rectus in curia Irekt:}s in kyuriy:}/. Lat. Right in 
court. The condition of one who stands at the bar, 
against whom no one objects any offense. When a 
person outlawed has reversed his outlawry, so that he 
can have the benefit of the law, he is said to be "rectus 
in curia. " 
Recuperatio Ir:}k(y)uwp;}reysh(iy)ow/. Lat. In old Eng
lish law, recovery; restitution by the sentence of a judge 
of a thing that has been wrongfully taken or detained. 
Recuperatio, i.e., ad rem, per injuriam extortam sive 
detentam, per sententiam judicis restitutio Ir:}
k(y)uwp:}reysh(iy)ow, id est, p;}r :}njuriy:}m :}kst6rt:}m 
sayviy d:}tent:}m p�r sentensh(iy):}m juwd:}s:}s rest:}
t(y)uwsh(iy)ow/. Recovery, i.e., restitution by sentence 
of a judge of a thing wrongfully extorted or detained. 
Recuperatio est alicujus rei in causam, alterius ad
ductre per judicem acquisitio Ir:}k(y)uwp:}reysh(iy)ow 
est rel:}k(y)uwj;}s riyay in k6z:}m, olt:}ray:}s :}d;}ktiy p�r 
juwd:}s:}m rekw:}zish(iy)ow/. Recovery is the acquisition 
by sentence of a judge of anything brought into the 
cause of another. 
Recuperatores Ir:}k(y)uwp:}r:}t6riyz/. In Roman law, a 
species of judges first appointed to decide controversies 
between Roman citizens and strangers concerning rights 
requiring speedy remedy, but whose jurisdiction was 
gradually extended to questions which might be brought 
before ordinary judges. 
Recurrendum est ad extraordinarium quando non 
valet ordinarium Irek:}hrend:}m est red ekstr:}ord:}ner(i)
y:}m kw6ndow non vrebt ord:}ner(i)y:}m/. We must have 
recourse to what is extraordinary, when what is ordi
nary fails. 
Recusal. The process by which a judge is disqualified on 
objection of either party (or disqualifies himself or her
self) from hearing a lawsuit because of self interest, bias 
or prejudice. See also Recusation. 
REDDITION 
Recusants Ireky:}z:}nts/r:}kyuwz;}nts/. In old English 
law, persons who willfully absented themselves from 
their parish church, and on whom penalties were im
posed by various statutes passed during the reigns of 
Elizabeth and James I. Those persons who separate 
from the church established by law. The term was 
practically restricted to Roman Catholics. 
Recusation Ireky:}zeysh:}n/. In the civil law, a species 
of exception or plea to the jurisdiction, to the effect that 
the particular judge is disqualified from hearing the 
cause by reason of interest or prejudice. The challenge 
of jurors. An act, of what nature soever it may be, by 
which a strange heir, by deeds or words, declares he will 
not be heir. See also Recusal. 
Recusatio testis Irekyuwzeysh(iy)ow test:}s/. Lat. In 
the civil law, rejection of a witness, on the ground of 
incompetency. 
Red, raed, or rede Ired/riyd/. Sax. Advice; counsel. 
Redaction. In broad sense, term refers to any revision 
or editing, but in a legal sense, it has come to indicate 
alteration of a conf ession to excise any reference by one 
joint defendant to any codef endant. Com. v. Guess, 266 
Pa.Super. 359, 404 A.2d 1330, 1338. 
Red book of the exchequer. An ancient record, where
in are registered the holders of lands per baroniam in 
the time of Henry II, the number of hides of land in 
certain counties before the Conquest, and the ceremo
nies on the coronation of Eleanor, wife of Henry III. 
Reddendo singula singulis Ir:}dendow si1JGY:}b 
si1JGY:}I:}s/. Lat. By referring each to each; referring 
each phrase or expression to its appropriate object. A 
rule of construction. 
Reddendum Ir:}dend:}m/. Lat. In old English convey
ancing, rendering; yielding. The technical name of that 
clause in a conveyance by which the grantor creates or 
reserves some new thing to himself, out of what he had 
before granted; as "rendering therefor yearly the sum of 
ten shillings, or a pepper-corn," etc. That clause in a 
lease in which a rent is reserved to the lessor, and which 
commences with the word "yielding. " 2 Bl.Comm. 299. 
Reddens causam scientire Ireden(d)z k6z:}m sayenshi
yiy I. Lat. Giving the reason of his knowledge. 
Reddere, nil aliud est· quam acceptum restituere; 
seu, reddere est quasi retro dare, et redditur dicitur 
a redeundo, quia retro it Ired:}riy nil reliy:}d est kwrem 
:}ksept:}m rest:}t(y)uw:}riy; syuw red:}riy est kweyzay 
retrow deriy, et red:}t:}r dis:}t:}r ey rediY:lndow kway:} 
retrow it!. To render is nothing more than to restore 
that which has been received; or, to render is as it were 
to give back, and it is called "rendering" from "re
turning," because it goes back again. 
Reddidit se Irerl:}d:}t siy/. Lat. He has rendered him
self. 
In old English practice, a term applied to a principal 
who had rendered himself in discharge of his bail. 
Reddition Ir:}dish:}n/. A surrendering or restoring; also 
a judicial acknowledgment that the thing in demand

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REDDITION 
belongs to the demandant, and not to the person surren
dering. 
Redeem Ir:;ldiym/. To buy back. To free property or 
article from mortgage or pledge by paying the debt for 
which it stood as security. To repurchase in a literal 
sense; as, to redeem one's land from a tax-sale. It 
implies the existence of a debt and means to rid proper
ty of that incumbrance. Talley v. Eastland, 259 Ky. 
241, 82 S.W.2d 368, 372. See also Redemption. 
Redeemable Ir:;ldiym:;lb:;ll/. Subject to redemption; ad
mitting of redemption or repurchase; given or held 
under conditions admitting of reacquisition by purchase; 
as, a "redeemable pledge." 
Redeemable bond. A bond which the issuer may call 
for payment pursuant to the terms of the bond and 
indenture; a callable bond. 
Redeemable rights. Rights which return to the convey
or or disposer of land, etc., upon payment of the sum for 
which such rights are granted. 
Redeemable stock. Capital stock, generally preferred, 
which, by its terms, may be called by the issuing corpo
ration and paid. 
Redelivery. A yielding and delivering back of a thing. 
Redelivery bond. A bond given to a sheriff or other 
officer, who has attached or levied on personal property, 
to obtain the release and repossession of the property, 
conditioned to redeliver the property to the officer or 
pay him its value in case the levy or attachment is 
adjudged good. 
Redemise Iriyd:;lmayz/. A regranting of land demised or 
leased. 
Redemption. The realization of a right to have the title 
of property restored free and clear of the mortgage; 
performance of the mortgage obligation being essential 
for that purpose. 
The right of a debtor, and sometimes of a debtor's 
other creditors, to repurchase from a buyer at a forced 
sale property of the debtor that was seized and sold in 
satisfaction of a judgment or other claim against the 
debtor, which right usually is limited to forced sales of 
real property. Also, a bankruptcy term for extinguish
ing a lien on exempt property by making a cash pay
ment equal to the value of the property. 
The reacquisition of a security by the issuer pursuant 
to a provision in the security that specifies the terms on 
which the reacquisition may take place. A security is 
called for redemption when the issuer notifies the holder 
that the redemption privilege has been exercised. Typi
cally, a holder of a security that has been called for 
redemption will have a limited period thereafter to 
decide whether or not to exercise a conversion right. if 
one exists. 
A repurchase; a buying back. The act of a vendor of 
property in buying it back again from the purchaser at 
the same or an enhanced price. The process of annul
ling and revoking a conditional sale of property, by 
1278 
performance of the conditions on which it was stipulated 
to be revocable. 
The process of cancelling and annulling a defeasible 
title to land, such as is created by a mortgage or a 
tax-sale, by paying the debt or fulfilling the other condi
tions. The liberation of an estate from a mortgage. 
Webb v. Williamson, 202 Ark. 763, 152 S.W.2d 312, 314. 
The liberation of a chattel from pledge or pawn, by 
paying the debt for which it stood as security. 
Repurchase of notes, bonds, stock, bills, or other evi
dences of debt, by paying their value to their holders. 
The payment of principal and unpaid interest on bonds 
or other debt obligations. 
Repurchase by corporation of its shares at a price 
equal to the net asset value of the shares on date a 
redemption request is received by the corporation. 
Kreis v. Mates Inv. Fund, Inc., D.C.Mo., 335 F.Supp. 
1299, 1302. See also Stock (Stock redemption). 
See also Certificate of redemption; Equitable redemp
tion; Equity of redemption; Right of redemption; Tax 
redemption. 
Redemptiones Ir:;ldem(p)shiy6wniyz/. In old English 
law, heavy fines. Distinguished from misericordia 
(which see). 
Redemption period. A time period during which a 
defaulted mortgage, land contract, deed of trust, etc., 
can be redeemed. Such period is commonly provided for 
by state statute. 
Redemption premium. An additional price paid on the 
retirement of a security. 
Redemption price. The price at which a bond may be 
redeemed before maturity, at the option of the issuing 
company. Such term also applies to the price the com
pany must pay to call in certain types of preferred stock. 
Redemptio operis Ir:;ldem(p)sh(iy)ow 6wp:;lr:;ls/. Lat. In 
Roman law, a contract for the hiring or letting of 
services, or for the performance of a certain work in 
consideration of the payment of a stipulated price. It is 
the same contract as "locatio operis, " but regarded from 
the standpoint of the one who is to do the work, and who 
is called "redemptor operis," while the hirer is called 
"locator operis. " 
Redeundo Iriydiy�ndow /. Lat. Returning; in re
turning; while returning. 
Redevance. In old French and Canadian law, dues 
payable by a tenant to his lord, not necessarily in 
money. 
Red handed. Expression used in reference to suspect 
caught with evidence of crime on him or in his posses
sion. 
Red herring. In securities law, a preliminary prospec
tus that has not yet been approved by the Securities 
Exchange Commission or state securities commissioners. 
It has a red border on its front to give notice to interest
ed parties that the securities offering is not yet approved 
for final distribution. It is used as a type of advertising 
device to encourage securities sales. See also Prospectus.

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1279 
Redhibere Ired(h);)bir iy/. Lat. In the civil law, to have 
again; to have back; to cause a seller to have again 
what he had before. 
Redhibition Ired(h);)bish;)n/. Avoidance of sale on ac
count of vice or defect in thing sold which renders it 
either absolutely useless or its use so inconvenient and 
imperfect that it may be presumed that buyer would not 
have purchased it had he known of defects. LaFleur v. 
Boyce Machinery Corp., La.App., 282 So.2d 819, 821. 
Redhibitory action Ir;)d(h)ib;)t(;})riy reksh;)n/. In the 
civil law, an action for redhibition. An action to avoid a 
sale on account of some vice or defect in the thing sold, 
which renders its use impossible, or so inconvenient and 
imperfect that it must be supposed the buyer would not 
have purchased it had he known of the vice. Civ.Code 
La. art. 2520. An action in which buyer, alleging sell
er's breach of express or implied warranty, seeks to 
return thing sold or part thereof and to recover back all 
or part of price paid. Hermanos v. Matos, C.C.A.P uerto 
Rico, 81 F.2d 930, 931. 
Redhibitory defect or vice Ir;}d(h)ib;}t(;})riy d;}fektl 
°vays/. In the civil law, a defect in an article sold, for 
which the seller may be compelled to take it back; a 
defect against which the seller is bound to warrant. 
Smith v. Max Thieme Chevrolet Co., Inc., La.App., 315 
So.2d 82, 85. See Redhibition. 
Redimere /r;}dim;}riy/. Lat. In Roman law, to buy 
back. Talley v. Eastland, 259 Ky. 241, 82 S.W.2d 368, 
372. 
Redirect examination. An examination of a witness by 
the direct examiner subsequent to the cross-examination 
of the witness. See also Rehabilitation. 
Rediscount. The act of discounting an instrument 
which has already been discounted as in the case of a 
bank which has already discounted a note and then 
discounts or sells it again. 
Rediscount rate. The rate, fixed by the Federal Reserve 
Board, at which a Federal Reserve Bank can make loans 
to member banks on the security of commercial paper 
already discounted by such banks. 
Redisseisin Iriyd;}siy z;}n/. In old English law, a second 
disseisin of a person of the same tenements, and by the 
same disseisor, by whom he was before disseised. 3 
Bl.Comm. 188. 
Redistribution Iriydistr;}byliwsh;}n/. In gambling, pay
off to holders of winning tickets. Delaware Steeplechase 
& Race Ass'n v. Wise, 2 Terry (Del.) 587, 27 A.2d 357, 
361. 
Reditus /red;}t;}s/. Lat. A revenue or return; income 
or profit; specifically, rent. 
Reditus albi Ired;}t;}s relbay/. White rent; blanche 
farm; rent payable in silver or other money. 
Reditus assisus Ired;}t;}s ;}sayz;}s/. A set or standing 
rent. 
REDUCTION INTO POSSESSION 
Reditus capitales Ired;}bs krep;}teyliyz/. Chief rent 
paid by freeholders to go quit of all other services. 
Reditus nigri Ired;}bs nigray I. Black rent; black mail; 
rent payable in provisions, corn, labor, etc.; as distin
guished from "money rent," called "reditus albi. " 
Reditus quieti Ired;}t;)s kwayiytay/. Quitrents (q.v.). 
Reditus siccus Ired;)t;}s sik;}s/. Rent seck (q.v.). 
Red lights ahead doctrine. Under this doctrine, third 
party obtaining securities is required to investigate only 
under exceptional circumstances which arise when a 
party to a transaction has knowledge that some fact or 
facts exist with respect to transaction which would pre
vent action by commercially honest men for whom law 
is made. Thomes v. Atkins, D.C.Minn., 52 F.Supp. 405, 
410. 
Redlining. Term used to refer to a pattern of discrimi
nation in which financial institutions refuse to make 
mortgage loans, regardless of credit record of the appli
cant, on properties in specified areas because of alleged 
deteriorating conditions. At one time, lenders actually 
outlined these areas with a red pencil. Such practice 
violates federal laws. 12 U.S.C. § 2801 et seq. Such 
practice also includes a discriminatory failure or refusal 
to provide property insurance on dwellings. Dunn v. 
Midwestern Indem. Mid-American Fire and Cas. Co., 
D.C .Ohio, 472 F.Supp. 1106, 111 0. 
Redmans. In feudal law, men who, by the tenure or 
custom of their lands, were to ride with or for the lord of 
the manor, about his business. 
Redobatores Ir;}dowb;}toriyz/. In old English law, those 
that bought stolen cloth and turned it into some other 
color or fashion that it may not be recognized. See 
Redubbers. 
Redraft. A second or cross bill drafted by the original 
drawer after the first draft has been dishonored and 
protested. The amount includes the additional costs as 
well as the original face amount. 
Redress. Satisfaction for an injury or damages sus
tained. Damages or equitable relief. See Recovery; 
Restitution. 
Red tape. In a derivative sense, order carried to fastid
ious excess; system run out into trivial extremes. Term 
commonly refers to excessive bureaucracy. 
Redubbers Iriyd;)b;}rz/. In old English law, those who 
bought stolen cloth and dyed it of another color to 
prevent its being identified were anciently so called. 
Reduced to practice. Invention which has been "re
duced to practice" is an invention which has been suffi
ciently tested to demonstrate that it will work for its 
intended purpose. General Elec. Co. v. U.S., 654 F.2d 
55, 60, 228 Ct.Cl. 192. 
Reductio ad absurdum Ir;}d;)ksh(iy)ow red ;)bs;)rd;}m/. 
Lat. In logic, the method of disproving an argument by 
showing that it leads to an absurd consequence. 
Reduction into possession. The act of exercising the 
right conferred by a chose in action, so as to convert it

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REDUCTION INTO POSSESSION 
into a chose in possession; thus, a debt is reduced into 
possession by payment. 
Reduction of capital. Voluntary liquidation of retired 
corporate capital. Jay Ronald Co. v. Marshall Mortg. 
Corporation, 265 App.Div. 622, 40 N.Y.S.2d 391, 399. 
Reduction to possession. Conversion of a right exist
ing as a claim into actual custody and enjoyment. New
ell v. McLaughlin, 126 Conn. 138, 9 A.2d 815, 819. 
Reduction to practice. As respects priority of inven
tion for purposes of patentability is accomplished when 
inventor's conception is embodied in such form as to 
render it capable of practical and successful use. Py
rene-Minimax Corporation v. Palmer, 67 App.D.C. 33, 89 
F.2d 505, 510. But device need not be perfect or com
mercial success. Pierson v. Beck, Cust. & Pat.App., 40 
F.2d 769, 770. 
Redundancy. Introducing superfluous matter into a 
legal instrument; particularly the insertion in a plead
ing of matters foreign, extraneous, and irrelevant to 
that which it is intended to answer. In re Wise's Estate, 
144 Neb. 273, 13 N.W.2d 146, 151 . Redundant matter in 
pleadings may be ordered stricken on motion. Fed.R. 
Civil P. 12(f). 
Re-enact. To enact again; to revive. 
Re-enactment rule. If the legislature enacts again a 
statute which had long continued executive construction 
by an agency, it can be said that the legislature has 
adopted that construction. 
Re-entry. The act of resuming the possession of lands or 
tenements in pursuance of a right which party exercis
ing it reserved to himself when he quit his former 
possession. The right reserved by a grantor to enter the 
premises on breach of a condition of the conveyance. 
See also Repossessi on. 
Re-establish. To restore to its former position. Baron 
v. Prudence Life Ins. Co., 315 Ill.App. 129, 42 N.E.2d 
137, 138. 
Reeve Iriy v/. An ancient English officer of justice infe
rior in rank to an alderman. He was a ministerial 
officer appointed to execute process, keep the King's 
peace, and put the laws in execution. He witnessed all 
contracts and bargains, brought offenders to justice and 
delivered them to punishment, took bail for such as 
were to appear at the county court, and presided at the 
court or folcmote. He was also called gerefa. 
There were several kinds of reeves, as, the shire-gere
fa, shire-reeve or sheriff; the heh-gerefa, or high-sheriff; 
tithing-reeve, burghor or borough-reeve. 
Land reeve. See Land. 
Re-examination. An examination of a witness after a 
cross-examination, upon matters arising out of such 
cross-examination. 
Re-exchange. The damages or expenses caused by the 
dishonor and protest of a bill of exchange in a foreign 
country, where it was payable, and by its return to the 
1280 
place where it was drawn or indorsed, and its being 
there taken up. 
Re-export. The act of exporting a product which has 
been imported and left relatively unchanged in form 
before exporting again. 
Re-extent. In old English practice, a second extent 
made upon lands or tenements, upon complaint made 
that the former extent was partially performed. 
Re. fa. 10. Iriy fey low/. The abbreviation of "recordari 
facias loquelam," (q.v.). 
Refare Ir::lferiy/. To bereave, take away, rob. 
Refection Ir::lfeksh::ln/. In the civil law, reparation; re
establishment of a building. 
Refer. When a case or action involves matters of ac
count or other intricate details which require minute 
examination, and for that reason are not fit to be 
brought before a jury, it is common to refer the whole 
case, or some part of it, to the decision of an aUditor, 
master, or referee, and the case is then said to be 
referred. See Referee; Reference. 
Taking this word in its strict, technical use, it relates 
to a mode of determining questions which is distin
guished from "arbitration," in that the latter word im
ports submission of a controversy without any lawsuit 
having been brought, while "reference" imports a law
suit pending, and an issue framed or question raised 
which (and not the controversy itself) is sent out. Thus, 
arbitration is resorted to instead of any judicial proceed
ing; while reference is one mode of decision employed in 
the course of a judicial proceeding. 
To point, allude, direct, or make reference to. This is 
the use of the word in conveyancing and in literature, 
where a word or sign introduced for the purpose of 
directing the reader's attention to another place in the 
deed, book, document, etc., is said to "refer" him to such 
other connection. 
Referee. A person to whom a cause pending in a court 
is referred by the court, to take testimony, hear the 
parties, and report thereon to the court. Person who is 
appointed by court to exercise certain judicial powers, to 
take testimony, to hear parties, and report his findings. 
Department of Motor Vehicles v. Superior Court for Los 
Angeles County, 271 Cal.App.2d 770, 76 Cal.Rptr. 804, 
806. He is an officer exercising judicial powers, and is 
an arm of the court for a specific purpose. Segal v. 
Jackson, 183 Misc. 460, 48 N.Y.S.2d 877, 879. Similar 
functions are performed by auditors, assessors, or mas
ters (q.v.). See Fed.R.Civil P. 53. See also Magistrate; 
Master; Reference. 
Referee in bankruptcy. An officer appointed by the 
courts of bankruptcy under the Bankruptcy Act of 1898 
(11 V.S.C.A. § 1) corresponding to the "registers in 
bankruptcy" under earlier statutes having administra
tive and quasi-judicial functions under the bankruptcy 
law, and whose functions and powers were to administer 
proceedings under the federal Bankruptcy Act (q.v.). 
Such referees (called "bankruptcy judges" after 1973) 
were abolished by the 1978 Bankruptcy Code; their

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1281 
functions now being performed by Bankruptcy Court 
judges. 
Reference. The act of referring a case to a referee, 
auditor, or master to find facts and submit report to the 
court. The document by which the reference is made. 
Fed.R.Civil P. 53. See also Master; Referee. 
In contracts, an agreement to submit to arbitration; 
the act of parties in submitting their controversy to 
chosen referees or arbitrators. 
A person who will provide information for you about 
your character, credit, etc. The act of sending or direct
ing one person to another, for information or advice as 
to the character, solvency, standing, etc., of a third 
person, who desires to open business relations with the 
first, or to obtain credit with him. 
Reference in case of need. When a person draws or 
indorses a bill of exchange, he sometimes adds the name 
of a person to whom it may be presented "in case of 
need;" i.e., in case it is dishonored by the original 
drawee or acceptor. 
Reference statutes. Statutes which refer to other stat
utes and make them applicable to the subject of legisla
tion. Their object is to incorporate into the act of which 
they are a part the provisions of other statutes by 
reference and adoption. State ex reI. School Dist. of 
Kansas City v. Lee, 334 Mo. 513, 66 S.W.2d 521. 
Referendarius /ref;}render(i)y;}s/. An officer by whom 
the order of causes was laid before the Roman emperor, 
the desires or petitioners made known, and answers 
returned to them. 
Referendary /ref;}rend(;})riy/. In Saxon law, a master of 
requests; an officer to whom petitions to the king were 
referred. 
Referendo singula singulis /ref;}rendow si1Jg(y);}I;} 
si1Jg(y);}I;}s/. Lat. Referring individual or separate 
words to separate subjects; making a distributive refer
ence of words in an instrument; a rule of construction. 
Referendum /ref;}rend;}m/. The process of referring to 
the electorate for approval a proposed new state consti
tution or amendment (constitutional referendum) or of a 
law passed by the legislature (statutory referendum). 
Right constitutionally reserved to people of state, or 
local subdivision thereof, to have submitted for their 
approval or rejection, under prescribed conditions, any 
law or part of law passed by lawmaking body. Anne 
Arundel County v. McDonough, 277 Md. 271, 354 A.2d 
788, 796. Not all state constitutions make provision for 
referendum process. See also Ini tiative; Plebiscite; Prop
osition. 
In international law, a communication sent by a dip
lomatic representative to his home government, in re
gard to matters presented to him which he is unable or 
unwilling to decide without further instructions. 
Refinance. To finance again or anew; to pay off exist
ing debts with funds secured from new debt; to extend 
the maturity date and/or increase the amount of an 
existing debt; to arrange for a new payment schedule. 
Black's Law Dictionary 6th Ed.-28 
REFUND 
The discharge of an obligation with funds acquired 
through the creation of a new debt, often at a different 
interest rate. See also Debt adjustment; Recapitalization. 
Reform. To correct, rectify, amend, remodel. Instru
ments inter partes may be reformed, when defective, by a 
court. By this is meant that the court, after ascertain
ing the real and original intention of the parties to a 
deed or other instrument (which intention they failed to 
sufficiently express, through some error, mistake of fact, 
or inadvertence), will decree that the instrument be held 
and construed as if it fully and technically expressed 
that intention. See also Reformation. 
Reformation. A court-ordered correction of a written 
instrument to cause it to reflect the true intentions of 
the parties. Equitable remedy used to reframe written 
contracts to reflect accurately real agreement between 
contracting parties when, either through mutual mis
take or unilateral mistake coupled with actual or eq
uitable fraud by other party, the writing does not em
body contract as actually made. Mutual of Omaha Ins. 
Co. v. Russell, C.A.Kan., 402 F.2d 339, 344. 
If by mistake of fact as to the contents of a written 
agreement or conveyance, or by mistake of law as to its 
legal effect, the writing does not conform to the agree
ment of the parties to it, the writing can be reformed to 
accord with the agreement. Restatement, Second, Agen
cy, § 8D. 
Reformation means doing over to bring about a better 
result, correction or rectification. Tuel v. Gladden, 234 
Or. 1, 379 P.2d 553, 555. 
See also Reform. 
Reformatory. A penal institution for youthful offenders 
where the emphasis is on reformation of the juvenile's 
behavior. 
Refreshing recollection. See Recollection; Recorded 
past recollection; Refreshing the memory. 
Refreshing the memory. The act of a witness who 
consults his documents, memoranda, or books, to bring 
more distinctly to his recollection the details of past 
events or transactions, concerning which he is testifying. 
See Fed.Evid.R. 612. See also Past recollection recorded; 
Recollection; Recorded past recollection. 
Refund, n. As generally referred to in connection with 
income taxes, is the amount a taxpayer or reporting 
entity would receive from the government due to an 
overpayment of taxes. See also Rebate. 
Refund, v. To repay or restore; to return money in 
restitution or repayment; e.g. to refund overpaid taxes; 
to refund purchase price of returned goods. See also 
Rebate; Refund claim; Refunds. 
To fund again or anew; specifically, finance, to bor
row, usually by the sale of bonds, in order to pay off an 
existing loan with the proceeds. Street Improvement 
Dist. No. 315 v. Arkansas Highway Commission, 190 
Ark. 1045, 83 S.W.2d 81, 82. See also Recapitalization; 
Refinance.

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REFUND CLAIM 
Refund claim. A request directed to the Internal Reve
nue Service for repayment (i.e. refund) of taxes overpaid. 
Refunding. Type of refinancing (q.v.) in which the is
suer of bonds replaces outstanding bonds with a new 
issue. In general, any act of repayment of a loan or 
money advanced. See also Recapitalization; Refinance. 
Refunding bond. A bond which replaces or pays off 
outstanding bond which holder surrenders in exchange 
for new security. Fore v. Alabama State Bridge Corpo
ration, 242 Ala. 455, 6 So.2d 508, 512. Also a bond given 
to an executor by a legatee, upon receiving payment of 
the legacy, conditioned to refund the same, or so much 
of it as may be necessary, if the assets prove deficient. 
Refunds. Money received by the government or its 
officers which, for any cause, are to be refunded or 
restored to the parties paying them; such as excessive 
duties or taxes, duties paid on goods destroyed by acci
dent, duties received on goods which are re-exported, 
etc. See also Rebate; Refund. 
Refusal. The act of one who has, by law, a right and 
power of having or doing something of advantage, and 
declines it. Also, the declination of a request or de
mand, or the omission to comply with some requirement 
of law, as the result of a positive intention to disobey. 
In the latter sense, the word is often coupled with 
"neglect," as if a party shall "neglect or refuse" to pay a 
tax, file an official bond, obey an order of court, etc. 
But "neglect" signifies a mere omission of a duty, which 
may happen through inattention, dilatoriness, mistake, 
or inability to perform, while "refusal" implies the posi
tive denial of an application or command, or at least a 
mental determination not to comply. A rejection, a 
denial of what is asked. Board of Public Instruction of 
Palm Beach County, Fla. v. Cohen, C.A.Fla., 413 F.2d 
1201, 1203. See also Rejection; Renunciation; Repudia
tion; Rescind. 
As used in the context of the implied consent law 
simply means that an arrestee, after having been re
quested to take the breathalyzer test, declines to do so of 
his own volition. Rogers v. King, Mo.App., 684 S.W.2d 
390, 393. 
Refuse, v. /r�fyuwz /. To deny, decline, reject. "Fail" is 
distinguished from "refuse" in that "refuse" involves an 
act of the will, while "fail" may be an act of inevitable 
necessity. Maestas v. American Metal Co. of New Mexi
co, 37 N.M. 203, 20 P.2d 924, 928. 
Refuse, n. /refyuws/. That which is refused or rejected 
as useless or worthless. Worthless matter, rubbish, 
scum, leavings. In statute prohibiting discharge into 
navigable waters of refuse, "refuse" includes all foreign 
substances and pollutants other than liquid sewage. U. 
S. v. Kennebec Log-Driving Co., D.C.Me., 399 F.Supp. 
754, 757. 
Refutantia /reryuwtrensh(iy)�/. In old English law, an 
acquittance or acknowledgment of renouncing all future 
claim. 
Regale episcoporum /r�geyliy �pisk�p6r �m/. The tem
poral rights and privileges of a bishop. 
1282 
Regalia /r�geyl(i)y� /. An abbreviation of 'Jura regalia, " 
royal rights, or those rights which a King or Queen has 
by virtue of his or her prerogative, comprising: power of 
judicature; power of life and death; power of war and 
peace; masterless goods; assessments; minting of mon
ey. Owners of counties palatine were formerly said to 
have "jura regalia" in their counties as fully as the king 
in his palace. 1 BLComm. 117 . The term is sometimes 
used in the same sense in the Spanish law. 
Also, the crown, sceptre and jewels used at a corona
tion. 
Regalia facere /r�geyl(i)y� fres�riy/. To do homage or 
fealty to the sovereign by a bishop when he is invested 
with the regalia. 
Regard. In old English law, inspection; supervision. 
Also a reward, fee, or perquisite. 
Regardant /r�gard� nt/. A term which was applied, in 
feudal law, to a villein annexed to a manor, and having 
charge to do all base services within the same, and to 
see the same freed from all things that might annoy his 
lord. Such a villein regardant was thus opposed to a 
villein en gros, who was transferable by deed from one 
owner to another. 
Regarder of a forest. In old English law, an ancient 
officer of the forest, whose duty it was to take a view of 
the forest hunts, and to inquire concerning trespasses, 
offenses, etc. 
Regard of the forest. In old English law, the oversight 
or inspection of it, or the office and province of the 
regarder, who is to go through the whole forest, and 
every bailiwick in it, before the holding of the sessions of 
the forest, or justice-seat, to see and inquire after tres
passers, and for the survey of dogs. 
Rege inconsulto /riyjiy ink�ns;)ltow /. Lat. In old Eng
lish law, a writ issued from the sovereign to the judges, 
not to proceed in a cause which may prejudice the 
crown, until advised. 
Regency. Rule; government; kingship; office or 
government of regent, or body of regents, during rule of 
regent. The man or body of men intrusted with the 
vicarious government of a kingdom during the minority, 
absence, insanity, or other disability of the King. 
Regent. A governor or ruler. One who vicariously 
administers the government of a kingdom, in the name 
of the king, during the latter's minority or other disabili
ty. 
A master, governor, director, or superintendent of a 
public institution, particularly a college or university. 
Board of Regents is the governing body of a state univer
sity or college system. 
In the canon law, it signifies a master or professor of a 
college. 
Reg. gen. An abbreviation of "Regula Generalis," a 
general rule (of court). 
Regia dignitas est indivisibilis, et qurelibet alia deri
vativa dignitas est similiter indivisibilis /riyj(iy)� 
dign�tres est ind�v�zib�l�s et kwiyl�b�t eyl(i)y�

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1283 
d;riv;tayv; dign;tres est s;mil;t;r ind;v;zi b;l;s/. The 
kingly power is indivisible, and every other derivative 
power is similarly indivisible. 
Regicide Irej;sayd /riyO I. The murder of a sovereign; 
also the person who commits such murder. 
Regidor Ireyhiy d6r/. In Spanish law, one of a body, 
never exceeding twelve, who formed a part of the ayun
tamiento. The office of regidor was held for life; that is 
to say, during the pleasure of the supreme authority. In 
most places the office was purchased; in some cities, 
however, they were elected by persons of the district, 
called "capi tu lares. " 
Regime Ireyzhiym /. In French law, a system of rules or 
regulations. 
Regime dotal Ireyzhiym dowtili/. The dot, being the 
property which the wife brings to the husband as her 
contribution to the support of the burdens of the mar
riage, and which may either extend as well to future as 
to present property, or be expressly confined to the 
present property of the wife, is subject to certain regula
tions which are summarized in the phrase "regime do
tal." The husband has the entire administration during 
the marriage; but, as a rule, where the dot consists of 
immovables, neither the husband nor the wife, nor both 
of them together, can either sell or mortgage it. The 
dot is returnable upon the dissolution of the marriage, 
whether by death or otherwise. 
Regime en communaute Ireyzhiym on komyuwn
owtey/. The community of interests between husband 
and wife which arises upon their marriage. It is either 
(1) legal or (2) conventional, the former existing in the 
absence of any "agreement" properly so called, and 
arising from a mere declaration of community; the 
latter arising from an "agreement," properly so called. 
Regimiento Ireyhiymyent ow/. In Spanish law, the body 
of regidores, who never exceeded twelve, forming a part 
of the municipal council, or ayuntamiento, in every 
capital of a jurisdiction. 
Regina Ir�jilyn �/. Lat. The Queen. 
Regio assensu Iriyj(iy)ow �sens(y)uw/. A writ whereby 
the sovereign gives his assent to the election of a bishop. 
Register, v. To record formally and exactly; to enroll; 
to enter precisely in a list or the like. Los Angeles 
County v. Craig, 38 Cal.App.2d 58, 100 P.2d 818, 820. 
To make correspond exactly one with another; to fit 
correctly in a relative position; to be in correct align
ment one with another. Cover v. Schwartz, Cust. & 
Pat.App., 28 C.C.P.A. 831, 116 F.2d 512, 515. See also 
Record. 
Register, n. An officer authorized by law to keep a 
record called a "register" or "registry." 
A book of public facts such as births, deaths and 
marriages (also called a registry), or the public official 
who keeps such book. Other examples of public record 
books are the register of patents (a list of all patents 
granted) and the register of ships (kept by customs). 
Other examples of public record keeping officials are the 
REGISTERED STOCK 
register of copyrights, register of deeds (land records) 
and the register of wills (clerk of probate court). They 
are often called uRecorder" or uRegistrar." 
See also Federal Register. 
Registered. Entered or recorded in some official reg
ister or record or list. 
Registered bond. A bond entered on the books of the 
issuing corporation or of its transfer agent in the name 
of the purchaser, whose name also appears on the face of 
the bonds. Either principal alone or both principal and 
interest may be registered. 
A bond the number of which is recorded by the seller 
in the name of the purchaser and which only the latter, 
or one legally authorized to act for him, can redeem. 
Principal of such a bond and interest, if registered as to 
interest, is paid to the owner listed on the books of the 
issuer, as opposed to a bearer bond where the possessor 
of the bond is entitled to interest and principal. 
The bonds of the Vnited States government (and of 
many municipal and private corporations) are either 
registered or "coupon bonds." In the case of a reg
istered bond, the name of the owner or lawful holder is 
entered in a register or record, and it is not negotiable 
or transferable except by an entry on the register, and 
checks or warrants are sent to the registered holder for 
the successive installments of interest as they fall due. 
A bond with interest coupons attached is transferable by 
mere delivery, and the coupons are payable, as due, to 
the person who shall present them for payment. But 
the bond issues of many private corporations now pro
vide that the individual bonds "may be registered as to 
principal," leaving the interest coupons payable to bear
er, or that they may be registered as to both principal 
and interest, at the option of the holder. 
Registered check. A check purchased by a person at a 
bank and drawn on funds of the bank that have been 
specially set aside to cover the check, though not certi
fied by the bank; loosely called a money order. Com
pare Money order. 
Registered corporation. A publicly held corporation 
which has registered under section 12 of the Securities 
Exchange Act of 1934 (15 V.S.C.A. § 78l ). See also 
Registration statement. 
Registered mail. Type of special mailing privilege giv
en by the V.S. Postal Service for an extra fee and which 
provides insurance of its delivery up to certain amount. 
Registered representative. A person who has met the 
qualifications set by law or regulations (of e.g. SEC and 
New York Stock Exchange) to sell securities to the 
public. 
Registered securities. See Registered bond; Registered 
stock; Registration of securities; Registration statement. 
Registered stock. Stock issue that has been registered 
with Securities and Exchange Commission as a new 
issue or secondary offering. 15 V.S.C.A. § 77c et seq. 
See also Registration of securities; Registration statement.

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REGISTERED TONNAGE 
Registered tonnage. The registered tonnage of a vessel 
is the capacity or cubical contents of the ship, or the 
amount of weight which she will carry, as ascertained in 
some proper manner and entered on an official register 
or record. 
Registered trademark. A trademark filed in the Unit
ed States Patent and Trademark office, with the neces
sary description and other statements required by the 
act of congress, and there duly recorded, securing its 
exclusive use to the person causing it to be registered. 
18 U.S.C.A. § 1051. See Trademark. 
Registered voters. Persons whose names are placed 
upon the registration books provided by law as the 
record or memorial of the duly qualified voters of the 
state or county. See also Qualified voter. 
Register in bankruptcy. An officer of the courts of 
bankruptcy, under the earlier acts of congress having 
substantially the same powers and duties as the "ref
erees in bankruptcy" under the Act of 1898 (11 U.S.C. 
A.). See Referee in bankruptcy. 
Register of deeds. The name given in some states to 
the officer whose duty is to record deeds, mortgages, and 
other instruments affecting realty in the official books 
provided and kept for that purpose; also commonly 
called "registrar" or "recorder" of deeds. 
Register of land office. Formerly, a federal officer 
appointed for each federal land district, to take charge 
of the local records and attend to the preliminary mat
ters connected with the sale, preemption, or other dis
posal of the public lands within the district. 
Register of ships. A register kept by the collectors of 
customs, in which the names, ownership, and other facts 
relative to merchant vessels are required by law to be 
entered. This register is evidence of the nationality and 
privileges of an American ship. The certificate of such 
registration, given by the collector to the owner or 
master of the ship, is also called the ship's register. 
Register of the Treasury. An officer of the United 
States Treasury, whose duty is to keep all accounts of 
the receipt and expenditure of public money and of 
debts due to or from the United States, to preserve 
adjusted accounts with vouchers and certificates, to 
record warrants drawn upon the treasury, to sign and 
issue government securities, and take charge of the 
registry of vessels under United States laws. 31 U.S. 
C.A. § 161. 
Register of wills. An officer in some of the states, 
whose function is to record and preserve all wills admit
ted to probate, to issue letters testamentary or of admin
istration, to receive and file accounts of executors, etc., 
and generally to act as the clerk of the probate court. 
Register's court. A court, formerly in the state of 
Pennsylvania which had jurisdiction in matters of pro
bate. See Orphan's Courts. 
Registrant. One who registers; particularly, one who 
registers anything (e.g., a trademark) for the purpose of 
1284 
securing a right or privilege granted by law on condition 
of such registration. 
Registrar /rej:;lstnlr/. An officer who has the custody 
and charge of keeping of a registry or register. Person 
in educational institution in charge of registering stu
dents for enrollment, maintaining academic records, etc. 
Person in hospital responsible for admitting of patients. 
An agent, usually a bank or trust company, appointed 
by a corporation to keep records of the names of bond 
and stockholders and distributions of earnings. See 
Registration of securities. 
Registrarius / rej:;lstrer(i)y:;ls/ . In old English law, a no
tary; a registrar or register. 
Registrar of deeds. A term used in some states to 
describe the person in charge of recorded instruments 
affecting land title. Also commonly called a recorder or 
register (q.v.). 
Registration. Recording; enrolling; inserting in an offi
cial register. Enrollment, as registration of voters, reg
istration for school, etc. The act of making a list, 
catalogue, schedule, or register, partiCUlarly of an offi
cial character, or of making entries therein. 
Any schedule containing a list of voters, the being 
upon which constitutes a prerequisite to vote. 
Land. System by which owner of real property may 
petition court for certificate of title by which state 
certifies such title as being in the owner whose name 
appears on certificate of title. See, e.g., Mass.G.L. c. 185, 
§§ 26 et seq. See also Torrens title system. 
Registration of securities. Recording in the official 
books of the company of the name and address of the 
holder of each bond or certificate of stock, with the date 
of its issue, and, in the case of a transfer of stock from 
one holder to another, the names of both parties and 
such other details as will identify the transaction and 
preserve an official record of its essential facts. Such 
information is required for paying of dividends, mailing 
of proxies, annual reports, etc. 
Statutory procedure requiring the filing with the 
S.E.C. of various documents including a prospectus in 
order for securities to be publicly offered. Clearance 
must be obtained from the S.E.C. before the securities 
may be sold. There is no ceiling relative to the number 
of shares or dollar amount that may be registered. 15 
U.S.C. § 77f et seq. See also Registered stock; Registra
tion statement; Regulation A; Shelf registration. 
Registration statement. Document required by the Se
curities Act of 1933 of most companies wishing to issue 
securities to the public or by the Securities Exchange 
Act of 1934 of a company wishing to have its securities 
traded in public markets. The statement discloses fi
nancial data, purpose of securities offering, and other 
items of interest to potential investors. Such state
ments must be submitted to and approved by the SEC. 
15 U .S.C.A. § 77f et seq. See Letter of comment; Pro
spectus; Registration of securities; Regulation A.

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1285 
Registrum brevium /r;jistr;m briyv(i)y;m/. The reg
ister of writs (q.v.). 
Registry. A register, or book authorized or recognized 
by law, kept for the recording or registration of facts or 
documents. 
The list or record of ships subject to the maritime 
regulations of a particular country. The listing of a 
vessel at a custom house under the name of the country 
whose flag it flies, though such flag is not necessarily 
indicative of the nationality of the owner. Generally, 
��registry" applies to vessels in foreign commerce, where
as "enrollment" refers to coastwise navigation. R. C. 
Craig Limited v. Ships of Sea Inc., D.C.Ga., 345 F.Supp. 
1066, 1070. 
Registry of deeds. See Register of deeds; Registrar of 
deeds. 
Reg. Jud. An abbreviation of "Registrum Judiciale," 
the register of judicial writs. 
Reg. Lib. An abbreviation of "Registrarii Liber," the 
register's book in chancery, containing all decrees. 
Regnal years /regn�l yirz/. Statutes of the British 
parliament are usually cited by the name and year of 
the sovereign in whose reign they were enacted, and the 
successive years of the reign of any king or queen are 
denominated the "regnal years." Since 1963, acts of 
Parliament have been numbered by the calendar year 
without reference to the regnal year. 
Regnant /regn�nt /. One having authority as a king; 
one in the exercise of royal authority. 
Reg. Orig. An abbreviation of "Registrum Originale," 
the register of original writs. 
Reg. Pl. An abbreviation of "Regula Placitandi, " rule of 
pleading. 
Regrant /riygramt/. In the English law of real proper
ty, when, after a person has made a grant, the property 
granted comes back to him (e.g., by escheat or forfei
ture), and he grants it again, he is said to regrant it. 
The phrase is chiefly used in the law of copyholds. 
Regrating. In old English law, the offense of buying or 
getting into one's hands at a fair or market any provi
sions, corn, or other dead victual, with the intention of 
selling the same again in the same fair or market, or in 
some other within four miles thereof, at a higher price. 
The offender was termed a "regrator." 
Regress. To return, go back or re-enter. Used princi
pally in the phrase "free entry, egress, and regress" but 
it is also used to signify the reentry of a person who has 
been disseised of land. 
Regressive tax. A tax levied at rates which increase 
less rapidly than the increase of the tax base, thus 
bearing more heavily on poorer taxpayers. Tax for 
which the rate decreases as the taxed base, such as 
income, increases. Compare Progressive tax. 
Regs. An abbreviation for U.S. Treasury Department 
Regulations. See Regulations. 
REGULAR COURSE OF BUSINESS 
Regula /regy;l; /. Lat. A rule. Regula generalis, a 
general rule; a standing rule or order of a court. Fre
quently abbreviated "Reg. Gen. " 
Regulre generales /regy�liy jen�reyliyz /. Lat. General 
rules, which the courts promulgate from time to time for 
the regulation of their practice. 
Regula est, juris quidem ignorantiam cuique nocere, 
facti vero ignorantiam non nocere /regy�l� est, jur�s 
kwayd;m ign�rrenshiy�m k(yuw)aykwiy n�seriy, frektay 
virow ign�rrensh(iy)�m non n�seriy /. It is a rule, that 
every one is prejudiced by his ignorance of law, but not 
by his ignorance of fact. 
Regula pro lege, si deficit lex /regy�l� prow liyjiy, say 
der�s�t leks/. In default of the law, the maxim rules. 
Regular. Conformable to law. Steady or uniform in 
course, practice, or occurrence; not subject to unex
plained or irrational variation. Usual, customary, nor
mal or general. Gerald v. American Cas. Co. of Read
ing, Pa., D.C.N.C., 249 F.Supp. 355, 357. Made accord
ing to rule, duly authorized, formed after uniform type; 
built or arranged according to established plan, law, or 
principle. Antonym of "casual" or "occasional." Palle 
v. Industrial Commission, 79 Utah 47, 7 P.2d 284, 290. 
As to regular Clergy; Deposit; Election; Indorsement; 
Meeting; Navigation; Process; Session, and Term, see 
those titles. 
Regular and established place of business. Under 
federal Judicial Code, § 48 (28 U.S.C.A. §§ 1400, 1694), 
permitting patent infringement suits to be brought in 
the district in which defendant resides or where defen
dant committed acts of infringement and has a regular 
and established place of business, a "regular" place of 
business is one where business is carried on regularly, 
and not temporarily, or for some special work or particu
lar transaction, while an "established" place of business 
must be a permanent place of business, and a "regular 
and established place of business" is one where the same 
business in kind, if not in degree, as that done at the 
home office or principal place of business, is carried on. 
A foreign corporation may have a "regular and estab
lished place of business" although business therein is 
merely securing orders and forwarding them to the 
home office. Shelton v. Schwartz, C.C.A.Ill., 131 F.2d 
805, 808. See also Minimum contracts. 
Regular course of business. This phrase within work
er's compensation acts excluding from their benefits 
person whose employment is not in regular course of 
business of employer, refers to habitual or regular occu
pation that party is engaged in with view of winning 
livelihood or some gain, excluding incidental or occasion
al operations arising out of transaction of that business; 
to normal operations which constitute business. 
Term used in connection with books and records kept 
by a business and which are admissible in evidence if 
the court finds as a preliminary matter that the entries 
therein were made in good faith, before the action was 
commenced, and that such records are part of the cus
tomary operation of the business.

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REGULAR COURSE OF BUSINESS 
A memorandum, report, record, or data compilation, 
in any form, of acts, events, conditions, opinions, or 
diagnoses, made at or near the time by, or from informa
tion transmitted by, a person with knowledge, if kept in 
the course of a regularly conducted business activity, 
and if it was the regular practice of that business 
activity to make the memorandum, report, record, or 
data compilation, all as shown by the testimony of the 
custodian or other qualified witness, is not excluded by 
the hearsay rule, unless the source of information or the 
method or circumstances of preparation indicate lack of 
trustworthiness. Fed.Evid.R. 803(6); 28 U.S.C.A. 
§ 1732. See Business entry rule. 
For purposes of the Uniform Business Records Act, 
"regular course of business" means in the inherent 
nature of the business in question, and in the method 
systematically employed for the conduct of the business 
as a business. Missouri Valley Walnut Co. v. Snider, 
Mo.App., 569 S.W.2d 324, 328. 
In commercial law, a requirement for due negotiation 
of a document of title that limits U.C.C. Article 7's 
good-faith-purchase protection to normal and usual mer
cantile dealings in the trade. 
Term is also descriptive of sales which are ordinarily 
made by a business in contrast to a bulk sale. 
Regular entries. Entries made in books of account in 
regular course of business. See also Regular course of 
business. 
Regulariter non valet pactum de re mea non alienan
da /regy;}ler;}t;}r non v,H;}t prekt;}m diy riy miy;} non 
eyliy;}nrend;}/ . It is a rule that a compact not to alienate 
my property is not binding. 
Regularly /regy;}l;}rliy/. At fixed and certain intervals, 
regular in point of time. In accordance with some 
consistent or periodical rule or practice. 
Regular on its face. Process is "regular on its face" 
when it proceeds from a court, officer, or body having 
authority of law to issue process of that nature, and is 
legal in form and contains nothing to notify or fairly 
apprise any one that it is issued without authority. 
Regular use. . Term, for purposes of exclusionary lan
guage of automobile liability policy excluding coverage 
where automobile was "furnished for regular use," is 
defined as continuous use, uninterrupted normal use for 
all purposes, without limitation as to use, and customary 
use as opposed to occasional use or special use. Central 
Sec. Mut. Ins. Co. v. DePinto, 9 Kan.App.2d 85, 673 P.2d 
122, 124. 
Regulate. To fix, establish, or control; to adjust by rule, 
method, or established mode; to direct by rule or restric
tion; to subject to governing principles or laws. The 
power of Congress to regulate commerce is the power to 
enact all appropriate legislation for its protection or 
advancement; to adopt measures to promote its growth 
and insure its safety; to foster, protect, control, and 
restrain. Virginian Ry. Co. v. System Federation No. 
40, Railway Employees Department of American Feder
ation of Labor, C.C.A.Va., 84 F.2d 641, 650. It is also 
1286 
power to prescribe rule by which commerce is to be 
governed, and embraces prohibitory regulations. Unit
ed States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 456, 
85 L.Ed. 609. Regulate means to govern or direct ac
cording to rule or to bring under control of constituted 
authority, to limit and prohibit, to arrange in proper 
order, and to control that which already exists. Farm
ington River Co. v. Town Plan and Zoning Commission 
of Town of Farmington, 25 Conn.Sup. 125, 197 A.2d 653, 
660. 
Regulation. The act of regulating; a rule or order 
prescribed for management or government; a regulating 
principle; a precept. Rule of order prescribed by superi
or or competent authority relating to action of those 
under its control. Regulation is rule or order having 
force of law issued by executive authority of government 
(e.g. by federal administrative agency). State ex reI. 
Villines v. Freeman, Okl ., 370 P.2d 307, 309. See Regu
lations. 
Regulation A. This SEC regulation provides for simpli
fied registration filing requirements for certain small 
issue securities offerings. Securities Act of 1933, 15 
U.S.C.A. § 77c(b). See Registration of securities. 
Regulation J. Administrative rules issued by the Board 
of Governors of the Federal Reserve System governing 
the collection of checks and transfer of funds, directly or 
indirectly, through federal Reserve Banks. 
Regulation T. Securities and Exchange Commission 
regulation governing extension of credit by securities 
brokers to customers. See Margin account. 
Regulation Z. Regulations of Federal Reserve Board 
which implement provisions of Federal Truth-in-Lend
ing Act. See Truth-in-Lending Act. 
Regulation charge. Charge exacted for privilege or as 
condition precedent to carrying on business. See also 
Privilege (Pr ivilege tax). 
Regulation of an executive department. The general 
rules relating to the subject on which a department acts, 
made by the head of the department under some act of 
Congress conferring power to make such regulations, 
and thereby give to them the force of law. State ex reI. 
Kaser v. Leonard, 164 Or. 579, 102 P.2d 197. 
Regulations. Such are issued by various governmental 
departments to carry out the intent of the law. Agen
cies issue regulations to guide the activity of those 
regulated by the agency and of their own employees and 
to ensure uniform application of the law. Regulations 
are not the work of the legislature and do not have the 
effect of law in theory. In practice, however, because of 
the intricacies of judicial review of administrative ac
tion, regulations can have an important effect in deter
mining the outcome of cases involving regulatory activi
ty. United States Government regulations appear first 
in the Federal Register, published five days a week, and 
are subsequently arranged by subject in the Code of 
Federal Regulations. 
Treasury Regulations. Treasury Department Regula
tions (abbr. "Treas. Regs.") represent the position of the

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1287 
Internal Revenue Service as to how the Internal Reve
nue Code is to be interpreted. Their purpose is to 
provide taxpayers and I.R.S. personnel with rules of 
general and specific application to the various provisions 
of the tax law. Such regulations are published in the 
Federal Register and in tax services. 
Truth-in-Lending Act. See Regulation Z. 
Regulatory agency. See Adminis trative agency. 
Rehabilitation. Investing or clothing again with some 
right, authority, or dignity. Restoring person or thing 
to a former capacity; reinstating; qualifying again. In 
re Coleman, D.C.Ky., 21 F.Supp. 923, 924, 925. Restora
tion of individual to his greatest potential, whether 
physically, mentally, socially, or vocationally. Jones v. 
Grinnel Corp., 117 R.I. 44, 362 A.2d 139, 143. For 
rehabilitation of debtor, see Bankr uptcy proceedings; 
Wage earner's plan. 
Alimony. Term "rehabilitative alimony" contemplates 
sums necessary to assist a divorced person in regaining 
a useful and constructive role in society through voca
tional or therapeutic training or retraining and for the 
further purpose of preventing financial hardship on 
society or individual during the rehabilitative process. 
Sever v. Sever, Fla.App., 467 So.2d 492, 494. 
Corporation. Attempt to conserve and administer assets 
of insolvent corporation in hope of its eventual return 
from financial stress to solvency. In re Title & Mort
gage Guarantee Co. of Buffalo, 152 Misc. 428, 274 N.Y.S. 
270. Contemplates continuance of corporate life and 
activities, and its effort to restore and reinstate corpora
tion to former condition of successful operation and 
solvency. New York Title & Mortgage Co. v. Friedman, 
153 Misc. 697, 276 N.Y.S. 72. See Bankruptcy Code, Ch. 
11 (11 U.S.C.A.). See also Bankr uptcy proceedings; Re
ceivership; Reorganization. 
Witness. After cross examination, a witness whose cred
ibility has suffered may be examined again (redirect 
examination) to improve his standing with the trier of 
fact in matters covered on cross examination. This 
process is called "rehabilitation" of the witness. See 
Fed.R.Evid. 608(a). 
Rehearing. Second consideration of cause for purpose of 
calling to court's or administrative board's attention any 
error, omission, or oversight in first consideration. A 
retrial of issues which presumes notice to parties enti
tled thereto and opportunity for them to be heard. Yee 
v. State Board of Equalization of California, 16 Cal. 
App.2d 417, 60 P.2d 322, 323. Reconsideration of a case 
by the same court in which the original determination 
was made. Kerr-McGee Nuclear Corp. v. New Mexico 
Environmental Imp. Bd., App., 97 N.M. 88, 637 P.2d 38, 
46. Administrative decisions and determinations in so
cial security cases may be reopened for "good cause" and 
other specified grounds. See also Reargument; Retrial; 
Trial (Trial de novo). 
Rehypothecation Iriyhaypo(J�keysh: m/. To pledge to 
another or to transfer to another a note, goods, or other 
collateral which have been already pledged; e.g. a bro
ker may pledge securities pledged to him by a customer 
REINSURANCE 
(under e.g. a margin account) to finance his borrowings 
from a bank. 
Reif I riyf I. A robbery. 
Reification. The embodiment of a right to the payment 
of money in an instrument so that transfer of the 
instrument transfers also the right. The term can also 
refer generally to the embodiment of any other property 
in a writing, which writing represents the property. 
Rei interventus Iriyay int�rvent� s/. Lat. Things inter
vening; that is, things done by one of the parties to a 
contract, in the faith of its validity, and with the assent 
of the other party, and which have so affected his 
situation that the other will not be allowed to repudiate 
his obligation, although originally it was imperfect. 
Reimburse. To pay back, to make restoration, to repay 
that expended; to indemnify, or make whole. Los Ange
les County v. Frisbie, 19 Cal.2d 634, 122 P.2d 526. See 
also Restitution. 
Reimbursement. With respect to a surety, the common
law right to get indemnity, or otherwise recoup, from 
the principal debtor the value of the surety's perform
ance in satisfying the principal debtor's duty. Also 
refers to the right of an issuer of a letter of credit to 
recoup from its customer upon duly honoring the credit. 
Reincorporation. A new incorporation of a business 
which had already been incorporated. Also, a new 
incorporation of a document by reference which had 
previously been incorporated by reference but subse
quently disassociated. 
Reinstate. To reinstall; to reestablish; to place again in 
a former state, condition, or office; to restore to a state 
or position from which the object or person had been 
removed. Lowry v. Aetna Life Ins. Co., Tex.Civ.App., 
120 S.W.2d 505, 507. 
Reinstate a case. To place case again in same position 
as before dismissal. United States v. Green, C.C.A. 
Mont., 107 F.2d 19, 22. 
Reinstatement. In insurance, a restoration of the in
sured's rights under a policy which has lapsed or been 
cancelled. To reinstate a policy holder or one who has 
allowed his policy to lapse does not mean new insurance 
or taking out a new policy, but does mean that the 
insured has been restored to all the benefits accruing to 
him under the policy contract, the original policy. See 
also Reinstate. 
Reinsurance. A contract by which an insurer procures 
a third person to insure him against loss or liability by 
reason of original insurance. A contract that one insur
er makes with another to protect the latter from a risk 
already assumed. It binds the reinsurer to pay to the 
reinsured the whole loss sustained in respect to the 
subject of the insurance to the extent to which he is 
reinsured. Also the substitution, with the consent of 
the insured, of a second insurer for the first, so that the 
original insurer is released. 
An agreement to indemnify the assured, partially or 
altogether, against a risk assumed by it in policy issued

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REINSURANCE 
to third party. Great American Ins. Co. v. Fireman's 
Fund Ins. Co., C.A.N.Y., 481 F.2d 948, 950. A contract 
that one insurer makes with another to protect the first 
insurer from a risk he has already assumed. McDon
ough Const. Corp. v. Pan Am. Sur. Co., Fla.App., 190 
So.2d 617, 619. 
Reinsurance treaty. A bilateral contract containing 
mutual covenants which codify the ongoing process of 
one insurance company's transfer of risk to another. 
Fortress Re, Inc. v. Jefferson Ins. Co. of New York, 
D.C.N.C., 465 F.Supp. 333, 336. 
Reinsured. An insurer who is insured against loss un
der its policies. 
Reinsurer. An insurance carrier which insures insur
ers. 
Reintegration. The restoration of a part to the whole 
after separation. Term may be used in connection with 
documents to be read or understood together. 
Reipublicre interest voluntates def unctorum effectum 
sortiri /riyayp:)bl�siy int�rest vobnteytiyz diyf�lJk
t6r�m �fekt�m sortayray / . It concerns the state that 
the wills of the dead should have their effect. 
Reissuable notes. Bank-notes which, after having been 
once paid, may again be put into circulation. 
REIT. See Real estate investment trust. 
Rei turpis nullum mandatum est /riyay t:)rp�s n:)bm 
mrendeyt�m est/. The mandate of an immoral thing is 
void. A contract of mandate requiring an illegal or 
immoral act to be done has no legal obligation. 
Re jection. An offeree's communication to an offeror 
that the offeree refuses to accept the terms of the 
proposal made by the offeror. See Counteroffer; Non
acceptance; Refusal; Repudiation; Rescission of con
tract. 
Re join. In common-law pleading, to answer a plaintiffs 
replication in an action at law, by some matter of fact. 
Re joinder. In common-law pleading, the second plead
ing on the part of the defendant, being his answer to the 
plaintiffs replication. Rejoinder occurs during the trial 
stage where the defendant answers the plaintiffs rebut
tal. 
Rejoining gratis / r�j6ynilJ greyt� s/ . In common law 
pleading, rejoining voluntarily, or without being re
quired to do so by a rule to rejoin. When a defendant 
was under terms to rejoin gratis, he had to deliver a 
rejoinder, without putting the plaintiff to the necessity 
and expense of obtaining a rule to rejoin. 
Relate. To stand in some relation; to have bearing or 
concern; to pertain; refer; to bring into association 
with or connection with; with "to." 
Related. Standing in relation; connected; allied; akin. 
Nowland Realty Co. v. Commissioner of Internal Reve
nue, C.C.A.7, 47 F.2d 1018, 1021. Goods are "related" 
for trademark purposes if they are used in conjunction 
with one another or are associated together in some way 
in the minds of the consuming public. Alfred Dunhill of 
1288 
London, Inc. v. Kasser Distillers Products Corp., D.C.Pa., 
350 F.Supp. 1341, 1352. See also Relative. 
Related claim. Related claims may be joined under 
Fed.R.Civil P. 18(a). Within statute permitting joinder 
of claim for unfair competition with substantial and 
related claim under patent laws is claim resting on 
substantially identical facts. Lyon v. General Motors 
Corp., D.C.Ill., 200 F.Supp. 89, 91. 
Related goods. Courts will find trademark infringe
ment in cases where the goods sold by the defendant and 
the mark owner do not directly compete, if the goods are 
related. Goods are considered related if consumers 
would assume that, when marked with the same trade
mark, they come from a common source or are spon
sored by the same party. 
Related party transactions. The tax law places restric
tions upon the recognition of gains and losses between 
related parties due to the potential for abuse. For 
example, restrictions are placed upon the deduction of 
losses from the sale or exchange of property between 
related parties. A related party includes a corporation 
which is controlled by the taxpayer. I.R.C. § 267. 
Related proceedings. As used in bankruptcy context 
are those civil proceedings, that, in absence of petition 
in bankruptcy court, could have been brought in federal 
district court or state court. Hotel Corp. of the South v. 
Rampart 920, Inc., D.C.La., 46 B.R. 758, 769. A "related 
proceeding" must in some way relate to the administra
tion of the bankrupt estate; there must be some reason 
why adjUdication of the claim is better placed with the 
bankruptcy court as opposed to a state court. In re 
American Energy, Inc., Bkrtcy.N.D., 50 B.R. 175, 179. 
See also Core proceeding. 
Relatio est fictio juris et intenta ad unum 
/r�leysh(iy)ow est fiksh(iy)ow jur�s et �ntent� red 
yuwn�m/. Relation is a fiction of law, and intended for 
one thing. 
Relation. A relative or kinsman; a person connected by 
consanguinity. A person connected with another by 
blood or affinity. Liprie v. Michigan Millers Mut. Ins. 
Co., La.App., 143 So.2d 597, 600. 
The words "relatives" and "relations," in their pri
mary sense, are broad enough to include any one con
nected by blood or affinity, even to the remotest degree, 
but where used in wills, as defining and determining 
legal succession, are construed to include only those 
persons who are entitled to share in the estate as next of 
kin under the statute of distributions. 
The connection of two persons, or their situation with 
respect to each other, who are associated, whether by 
the law, by their own agreement, or by kinship, in some 
social status or union for the purposes of domestic life; 
as the relation of guardian and ward, husband and wife, 
master and servant, parent and child; so in the phrase 
"domestic relations." 
The doctrine of "relation" is that principle by which 
an act done at one time is considered by a fiction of law 
to have been done at some antecedent period. It is 
usually applied where several proceedings are essential

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1289 
to complete a particular transaction, such as a convey
ance or deed. The last proceeding which consummates 
the conveyance is held for certain purposes to take effect 
by relation as of the day when the first proceeding was 
had. Knapp v. Alexander-Edgar Lumber Co., 237 U.S. 
162, 35 S.Ct. 515, 517, 59 L.Ed. 894; U. S. v. Anderson, 
194 U.S. 394, 24 S.Ct. 716, 48 L.Ed. 1035. See also 
Relation back. 
A recital, account, narrative of facts; information 
given. Thus, suits by quo warranto are entitled "on the 
relation or' a private person, who is called the "relator." 
But in this connection the word seems also to involve 
the idea of the suggestion, instigation, or instance of the 
relator. 
See also Blood relations; Kin or kindred; Next of kin; 
Relative. 
Relation back. General rule of "relation back" is that a 
pleading may not be amended to allege a new or differ
ent claim or defense unless it arose out of, or is based on 
or related to, claim, transaction or occurrence originally 
set forth or attempted to be set forth. Harastej v. 
Reliable Car Rental, Inc., D.C. Puerto Rico, 58 F.R.D. 
197, 198. See also Amended pleadings, below. 
A principle that an act done today is considered to 
have been done at an earlier time. A document held in 
escrow and finally delivered is deemed to have been 
delivered as of the time at which it was escrowed. 
See Ex post facto. 
Amended pleadings. Whenever the claim or defense 
asserted in the amended pleading arose out of the con
duct, transaction, or occurrence set forth or attempted 
to be set forth in the original pleading, the amendment 
relates back to the date of the original pleading. Fed.R. 
Civil P. 15(c). 
Relations. A term which, in its widest sense, includes 
all the kindred of the person spoken of. 
Relatio semper fiat ut valeat dispositio /r�le ysh(iy)ow 
semp�r fay�t ;}t vreliy�t disp�zish(iy)ow / . Reference 
should always be had in such a manner that a disposi
tion in a will may avail. 
Relative. A kinsman; a person connected with another 
by blood or affinity. When used generically, includes 
persons connected by ties of affinity as well as consan
guinity, and, when used with a restrictive meaning, 
refers to those only who are connected by blood. 
Individual related by affinity or consanguinity within 
the third degree as determined by the common law, or 
individual in a step or adoptive relationship within such 
third degree. Bankruptcy Code, § 101. 
A person or thing having relation or connection with 
some other person or thing; as, relative rights, relative 
powers, infra. See also Relation. 
Relative confession. See Confession. 
Relative convenience doctrine. Equity may refuse an 
injunction or other equitable relief if the inconvenience 
to one party is great while to the other party there is 
little or no inconvenience. Duke v. Crossfield, 241 Mo. 
App. 579, 240 S.W.2d 180. 
RELEASE 
Relative fact. In the law of evidence, a fact having 
relation to another fact; a minor fact; a circumstance. 
Relative powers. Those which relate to land; so called 
to distinguish them from those which are collateral to it. 
Relative rights. Those rights of persons which are 
incident to them as members of society, and standing in 
various relations to each other. Those rights of persons 
in private life which arise from the civil and domestic 
relations. 
Relativorum, cognito uno, cognoscitur et alterum 
/rel�t�v6r�m, k6gn�tow yuwnow, k�gn6s�t�r et 61t�r �m /. 
Of relatives, one being known, the other is also known. 
Relator. An informer. The person upon whose com
plaint, or at whose instance certain writs are issued 
such as information or writ of quo warranto, and who is 
quasi the plaintiff in the proceeding. For example if 
John Smith is the relator and Jones is the defendant, 
the citation would read, State ex reI. John Smith v. 
Jones. A party in interest who is permitted to institute 
a proceeding in the name of the People or the Attorney 
General when the right to sue resides solely in that 
official. Veterans' Industries, Inc., of Long Beach, Cal. 
v. Lynch, 8 CaLApp.3d 902, 88 CaLRptr. 303, 317. See 
also Ex relatione; Parens patrire; Real party in interest. 
Relatrix /r�leytr�ksl/ . A female relator or petitioner. 
Relaxatio /relrekseysh(iy)ow/. In old conveyancing, a 
release; an instrument by which a person relinquishes 
to another his right in anything. 
Release, v. To discharge a claim one has against anoth
er, as for example in a tort case the plaintiff may 
discharge the liability of the defendant in return for a 
cash settlement. 'Fo lease again or grant new lease. 
See Accord and sati$faction. 
Release, n. A writing or an oral statement manifesting 
an intention to dis¢harge another from an existing or 
asserted duty. The relinquishment, concession, or giv
ing up of a right, olaim, or privilege, by the person in 
whom it exists or Ito whom it accrues, to the person 
against whom it might have been demanded or enforced. 
Abandonment of claim to party against whom it exists, 
and is a surrender of a cause of action and may be 
gratuitous or for consideration. Melo v. National Fuse 
& Powder Co., D.C.Colo., 267 F.Supp. 611, 612. Giving 
up or abandoning of claim or right to person against 
whom claim exists or against whom right is to be exer
cised. Adder v. Holman & Moody, Inc., 288 N.C. 484, 
219 S.E.2d 190, 1951 
A discharge of a debt by act of party, as distinguished 
from an extinguish�ent which is a discharge by opera
tion of law, and, in distinguishing release from receipt, 
"receipt" is evidence that an obligation has been dis
charged, but "rele8.$e" is itself a discharge of it. Glick
man v. Weston, 140 Or. 11 7, 11 P.2d 281, 284. 
An express release is one directly made in terms by 
deed or other suita�le means. An implied release is one 
which arises from acts of the creditor or owner, without 
any express agreement. A release by operation of law is 
one which, though not expressly made, the law pre-

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RELEASE 
sumes in consequence of some act of the releasor; for 
instance, when one of several joint obligors is expressly 
released, the others are also released by operation of 
law. 
Liberation, discharge, or setting free from restraint or 
confinement. Thus, a man unlawfully imprisoned may 
obtain his release on habeas corpus. See also Bail. 
The abandonment to (or by) a person called as a 
witness in a suit of his interest in the subject-matter of 
the controversy, in order to qualify him to testify, under 
the common-law rule. 
A receipt or certificate given by a ward to the guardi
an, on the final settlement of the latter's accounts, or by 
any other beneficiary on the termination of the trust 
administration, relinquishing all and any further rights, 
claims, or demands, growing out of the trust or incident 
to it. 
In admiralty actions, when a ship, cargo, or other 
property has been arrested, the owner may obtain its 
release by giving bail, or paying the value of the proper
ty into court. 
The conveyance of a person's interest or right which 
he has in a thing to another that has the possession 
thereof or some estate therein. The relinquishment of 
some right or benefit to a person who has already some 
interest in the property, and such interest as qualifies 
him for receiving or availing himself of the right or 
benefit so relinquished. 
Conditional release. See that title. 
Deed of release. A deed operating by way of release; 
but more specifically, in those states where deeds of 
trust are in use instead of common-law mortgages, as a 
means of pledging real property as security for the 
payment of a debt, a "deed of release" is a conveyance in 
fee, executed by the trustee or trustees, to the grantor in 
the deed of trust, which conveys back to him the legal 
title to the estate, and which is to be given on satisfac
tory proof that he has paid the secured debt in full or 
otherwise complied with the terms of the deed of trust. 
Release by way of enlarging an estate. A conveyance of 
the ulterior interest in lands to the particular tenant; 
as, if there be tenant for . ljfe or years, remainder to 
another in fee, and he in remainder releases all his right 
to the particular tenant and his heirs, this gives him the 
estate in fee. 2 BLComm. 324. 
Release by way of entry and feoffment. If there be two 
joint disseisors, and the disseisee releases to one of them, 
he shall be sole seised, and shall keep out his former 
companion; which is the same in effect as if the disseis
ee had entered and thereby put an end to the disseisin, 
and afterwards had enfeoffed one of the disseisors in fee. 
2 BLComm. 325. 
Release by way of extinguishment. If my tenant for life 
makes a lease to A. for life, remainder to B. and his 
heirs, and I release to A., this extinguishes my right to 
the reversion, and shall inure to the advantage of B.'s 
remainder, as well as of A.'s particular estate. 2 Bl. 
Comm. 325. 
1290 
Release by way of passing an estate. As, where one or 
two coparceners releases all her right to the other, this 
passes the fee-simple of the whole. 2 BLComm. 324, 325. 
Release by way of passing a right. If a man be disseised 
and releaseth to his disseisor all his right, hereby the 
disseisor acquires a new right, which changes the quali
ty of his estate, and renders that lawful which before 
was tortious or wrongfuL 2 BLComm. 325. 
Release of dower. The relinquishment by a married 
woman of her expectant dower interest or estate in a 
particular parcel of realty belonging to her husband, as, 
by joining with him in a conveyance of it to a third 
person. 
Release of mortgage. A written document which dis
charges the obligation of a mortgage upon payment and 
which is given by mortgagee to mortgagor or holder of 
equity and recorded in the office where deeds and other 
instruments of conveyance are recorded. 
Release to uses. The conveyance by a deed of release to 
one party to the use of another is so termed. Thus, 
when a conveyance of lands was effected, by those in
struments of assurance termed a lease and release, from 
A. to B. and his heirs, to the use of C. and his heirs, in 
such case C. at once took the whole fee-simple in such 
lands; B. by the operation of the statute of uses, being 
made a mere conduit-pipe for conveying the estate to C. 
Releasee. The person to whom a release is made. 
Release on own recognizance. Pre-trial release based 
on the person's own promise that he will show up for 
trial (no bond required). A species of bail in which the 
defendant acknowledges personally without sureties his 
obligation to appear in court at the next hearing or trial 
date of his case. It is used in place of a bail bond when 
the judge or magistrate is satisfied that the defendant 
will appear without the need of a surety bond or other 
form of security. Also referred to as "release on own 
recognizance" or "ROR". See e.g. 18 V.S.C.A. § 3142; 
Fed.R.Crim.P. 46. 
Releaser, or releasor. The maker of a release. 
Relegatio Irel;}geysh(iy)ow/. Lat. A kind of banish
ment known to the civil law, which differed from "depor
tatio" in leaving to the person his rights of citizenship. 
Relegation. In old English law, banishment for a time 
only. 
Relevancy Irebv;}nsiy /. Applicability to the issue 
joined. That quality of evidence which renders it prop
erly applicable in determining the truth and falsity of 
the matters in issue between the parties to a suit. Two 
facts are said to be relevant to each other when so 
related that according to the common course of events, 
one either taken by itself or in connection with other 
facts, proves or renders probable the past, present, or 
future existence or non-existence of the other. 
Relevancy is that which conduces to the proof of a 
pertinent hypothesis; a pertinent hypothesis being one 
which, if sustained, would logically influence the issue. 
Hampton v. State, 126 Tex.Cr.R. 211, 70 S.W.2d 1001.

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1291 
Relevant evidence is such evidence as relates to, or bears 
directly upon, the point or fact in issue, and proves or 
has a tendency to prove the proposition alleged; evi
dence which conduces to prove a pertinent theory in a 
case. It does not mean evidence addressed with positive 
directness to the point but that which according to the 
common course of events either taken by itself or in 
connection with other facts, proves or renders probable 
the past, present or future existence or nonexistence of 
the other. 
Relevancy of evidence refers to its probative value in 
relation to the purpose for which it is offered. Vine 
Street Corp. v. City of Council Bluffs, Iowa, 220 N.W.2d 
860, 863. Term describes the logical relationship be
tween a proffered item of evidence and a proposition 
that is material or provable in a given case, U. S. v. 
Allison, C.A.La., 474 F.2d 286, 289; and means a logical 
relation between evidence and fact to be established. 
State v. Whalon, 1 Wash.App. 785, 464 P.2d 730, 735. 
As used in connection with admission of evidence, 
means to tend to establish a material proposition. State 
v. Thurman, App., 84 N.M. 5, 498 P.2d 697, 699. 
See also Material evidence; Relevant evidence. 
Relevant. See Material; Material evidence; Relevancy; 
Relevant evidence. 
Relevant evidence. Evidence tending to prove or dis
prove an alleged fact. Evidence having any tendency to 
make the existence of any fact that is of consequence to 
the determination of the action more probable or less 
probable than it would be without the evidence. Fed. 
Evid.R. 401. Evidence is "relevant" if it tends to make 
existence of material fact more or less probable. City of 
Seattle v. Boulanger, 37 Wash.App. 357, 680 P.2d 67, 68. 
Basic test for admissibility of evidence is relevancy, 
and testimony is "relevant" if reasonable inferences can 
be drawn therefrom regarding or if any light is shed 
upon, a contested matter. State v. Smith, 5 Wash.App. 
237, 487 P.2d 227, 229. Evidence is "relevant" not only 
when it tends to prove or disprove precise fact in issue 
but when it tends to establish fact from which existence 
or nonexistence of fact in issue can be directly inferred. 
People v. Warner, App., 270 C.A.2d 900, 76 Cal. Rptr. 
160, 165. 
See also Material; Material evidence; Relevancy; Unfair 
prejudice. 
Relevant market. To establish claim of monopolization 
or of attempt to monopolize under the Sherman Act, 
plaintiff must define the "relevant market" within 
which defendant allegedly possesses monopoly power, 
and such "relevant market" is the geographic market 
composed of products that have reasonable interchange
ability for purposes for which they are produced, consid
ering their price, use and quality. Tire Sales Corp. v. 
Cities Service Oil Co., D.C.Ill., 410 F.Supp. 1222, 1230; 
U. S. v. E. !. DuPont De Nemours & Co., 353 U.S. 586, 77 
S.Ct. 872, 1 L.Ed.2d 1057. Term, in relation to case 
involving alleged violation of Sherman Act, consists of 
both a product market and a geographic market. U. S. 
v. Otter Tail Power Co., D.C.Minn., 331 F.Supp. 54, 58. 
RELIEF 
It is one in which product effectively competes with 
functionally equivalent products. Central Chemical 
Corp. v. Agrico Chemical Co., D.C.,Md., 531 F.Supp. 533, 
549. See also Market. 
Reliable. Trustworthy, worthy of confidence. 
Reliance. In tort for deceit, it is necessary for plaintiff 
to prove that he relied on misrepresentation though 
such misrepresentation need not be the sole or even 
dominant reason for acting if it was a substantial factor 
in the plaintiffs decision. For fraud purposes, "re
liance" might be defined as a belief which motivates an 
act. Berry v. Robotka, 9 Ariz.App. 461, 453 P.2d 972, 
979. 
The test of "reliance" on misrepresentation in sale of 
stock as ground for recovery under Securities Exchange 
Act is whether the misrepresentation is a substantial 
factor in determining the course of conduct which re
sults in the recipient's loss. Where case involves pri
marily a failure to disclose, positive proof of reliance is 
not a prerequisite for recovery; all that is necessary is 
that the facts withheld be material in sense that reason
able investor might have considered them important in 
making of such decision. Gordon v. Burr, D.C.N.Y. , 366 
F.Supp. 156, 165. 
Term "reliance" as used in rule imposing liability on 
one who volunteers to undertake action for the protec
tion of another's person or things for failure to exercise 
reasonable care if harm is suffered because of the oth
er's reliance upon the undertaking connotes dependence; 
it bespeaks a voluntary choice of conduct by the person 
harmed and infers that the person exercising it can 
decide between available alternatives. Barnum v. Rural 
Fire Protection Co., 24 Ariz. App. 233, 537 P.2d 618, 622. 
See also Estoppel; Fraud; Material fact; Misrepresenta
tion. 
Reliance on promise. In promissory estoppel, the 
plaintiff is required to prove that he relied on promise of 
defendant to his damage. See also Promissory estoppel. 
Relict /rebkt/r�likt/. A widow or widower. The surviv
or of a pair of married people, whether the survivor is 
the husband or the wife; it means the relict of the 
united pair (or of the marriage union), not the relict of 
the deceased individual. 
Relicta verificatione / r�likt� vehr�f�keyshiy6wniy / . 
(Lat. his pleading being abandoned.) A confession of 
judgment made after plea pleaded; viz., a cognovit ac
tionem accompanied by a withdrawal of the plea. 
Reliction /r�liksh �n/. An increase of the land by the 
permanent withdrawal or retrocession of the sea or a 
river. Process of gradual exposure of land by perma
nent recession of body of water. State Engineer v. 
Cowles Bros., Inc., 86 Nev. 872, 478 P.2d 159, 161. The 
alteration of a boundary line due to the gradual removal 
of land by a stream serving as the boundary. See also 
Accretion; Aluvion; Dereliction. 
Relief. The public or private assistance or support, 
pecuniary or otherwise, granted to indigent persons.

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RELIEF 
Deliverance from oppression, wrong, or in justice. In 
this sense it is used as a general designation of the 
assistance, redress, or benefit which a complainant seeks 
at the hands of a court, particularly in equity. It may 
be thus used of such remedies as specific performance, 
injunction, or the reformation or rescission of a contract. 
Meir v. Walton, 6 N.C.App. 415, 170 S.E.2d 166, 169. 
See also Cause of action; Remedy. 
Relieve. To give ease, comfort, or consolation to; to give 
aid, help, or succor to; alleviate, assuage, ease, mitigate; 
succor, assist, aid, help; support, sustain; lighten, di
minish. Brollier v. Van Alstine, 236 Mo.App. 1233, 163 
S.W.2d 109, 11 5. 
To release from a post, station, or duty; to put anoth
er in place of, or to take the place of, in the bearing of 
any burden, or discharge of any duty. Kemp v. Stanley, 
204 La. 11 0, 15 So.2d 1, 11. 
Religion. Man's relation to Divinity, to reverence, wor
ship, obedience, and submission to mandates and pre
cepts of supernatural or superior beings. In its broadest 
sense includes all forms of belief in the existence of 
superior beings exercising power over human beings by 
volition, imposing rules of conduct, with future rewards 
and punishments. Bond uniting man to God, and a 
virtue whose purpose is to render God worship due him 
as source of all being and principle of all government of 
things. Nikulnikoff v. Archbishop, etc., of Russian Or
thodox Greek Catholic Church, 142 Misc. 894, 255 N.Y.S. 
653, 663. 
As used in constitutional provisions of First Amend
ment forbidding the "establishment of religion," the 
term means a particular system of faith and worship 
recognized and practised by a particular church, sect, or 
denomination. Reynolds v. U. S., 98 U.S. 145, 149, 25 
L.Ed. 244; Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 
2593, 53 L.Ed.2d 714; Roemer, et al. v. Board of Public 
Works of Md., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 1. 
Religion, offenses against. In old English law, they 
were enumerated by Blackstone as including: (1) Apos
tasy; (2) heresy; (3) reviling the ordinances of the 
church; (4) blasphemy; (5) profane swearing; (6) conju
ration or witchcraft; (7) religious imposture; (8) simony; 
(9) profanation of the Lord's day; (10) drunkenness; (11 ) 
lewdness. 4 Bl.Comm. 43. 
Religio sequitur patrem /r;}lij(iy)ow sekw;}t;}r pretr;}m/. 
The father's religion is prima facie the infant's religion. 
Lit. Religion will follow the father. 
Religious corporation. See Corporati on. 
Religious freedom. Within Constitution (First Amend
ment) embraces not only the right to worship God ac
cording to the dictates of one's conscience, but also the 
right to do, or forbear to do, any act, for conscience sake, 
the doing or forbearing of which is not inimical to the 
peace, good order, and morals of society. Barnette v. 
West Virginia State Board of Education, D.C.W.Va., 47 
F.Supp. 251, 253, 254. See also Establishment clause. 
Religious liberty. See Liberty .. 
1292 
Religious use. See Charitable use. 
Relinquish. To abandon, to give up, to surrender, to 
renounce some right or thing. See Abandonment; Re
lease. 
Relinquishment. A forsaking, abandoning, renouncing, 
or giving over a right. See Abandonment; Release. 
Reliqua /rel;}kw;}/. The remainder or debt which a 
person finds himself debtor in upon the balancing or 
liquidation of an account. Hence reliquary, the debtor 
of a reliqua; as also a person who only pays piece-meal. 
Relocatio /riylowkeysh(iy)ow/. Lat. In the civil law, a 
renewal of a lease on its determination. It may be 
either express or tacit; the latter is when the tenant 
holds over with the knowledge and without objection of 
the landlord. 
Relocation. In mining law, a new or fresh location of an 
abandoned or forfeited mining claim by a stranger, or by 
the original locator when he wishes to change the 
boundaries or to correct mistakes in the original loca
tion. 
Remainder. The remnant of an estate in land, depend
ing upon a particular prior estate created at the same 
time and by the same instrument, and limited to arise 
immediately on the determination of that estate, and 
not in abridgement of it. A future interest created in 
some person other than the grantor or transferor. Fol
den v. Folden, Ohio App., 188 N.E.2d 193, 194. 
The property that passes to a beneficiary after the 
expiration of an intervening income interest. If, for 
example, G. places real estate in trust with income to A. 
for life and remainder to B. upon A.'s death, B. has a 
remainder interest. 
An estate limited to take effect and be enjoyed after 
another estate is determined. As, if a man seised in 
fee-simple grants lands to A. for twenty years, and, after 
the determination of the said term, then to B. and his 
heirs forever, here A. is tenant for years, remainder to 
B. in fee. An estate in reversion is the residue of an 
estate, usually the fee left in the grantor and his heirs 
after the determination of a particular estate which he 
has granted out of it. The rights of the reversioner are 
the same as those of a vested remainderman in fee. 
In will, the terms rest, residue, and remainder of 
estate are usually and ordinarily understood as meaning 
that part of the estate which is left after all of the other 
provisions of the will have been satisfied. 
See also Cross remainder; Defeasibly vested remainder; 
Life estate; Reversionary interest. Compare Reversion 
or estate in reversion. 
Charitable remainder. A gift over to a charity generally 
after a life estate. It may be vested or contingent. 
Contingent remainder. One which is either limited to a 
person not in being or not certain or ascertained, or so 
limited to a certain person that his right to the estate 
depends upon some contingent event in the future. Ma
ryland Nat. Bank v. Comptroller of Treasury, 264 Md. 
536, 287 A.2d 291, 294.

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An estate in remainder which is limited to take effect 
either to a dubious and uncertain person, or upon a 
dubious and uncertain event, by which no present or 
particular interest passes to the remainder-man, so that 
the particular estate may chance to be determined and 
the remainder never take effect. A remainder limited 
so as to depend upon an event or condition which may 
never happen or be performed, or which may not hap
pen or be performed till after the determination of the 
preceding estate. 
Cross-remainder. Where land is devised or conveyed to 
two or more persons as tenants in common, or where 
different parts of the same land are given to such 
persons in severalty, with such limitations that, upon 
the determination of the particular estate of either, his 
share is to pass to the other, to the entire exclusion of 
the ultimate remainderman or reversioner until all the 
particular estates shall be exhausted, the remainders so 
limited are called "cross-remainders." In wills, such 
remainders may arise by implication; but, in deeds, only 
by express limitation. 
Executed remainder. A remainder which vests a 
present interest in the tenant, though the enjoyment is 
postponed to the future. 
Executory remainder. A contingent remainder; one 
which exists where the estate is limited to take effect 
either to a dubious and uncertain person or upon a 
dubious and uncertain event. 
Vested remainder. An estate by which a present inter
est passes to the party, though to be enjoyed in futuro, 
and by which the estate is invariably fixed to remain to 
a determinate person after the particular estate has 
been spent. One limited to a certain person at a certain 
time or upon the happening of a necessary event. 
Remainder interest. The property that passes to a 
beneficiary after the expiration of an intervening in
come interest. If, for example, G places real estate in 
trust with income to A for life and remainder to B upon 
A's death, B has a remainder interest. 
Remainderman. One who is entitled to the remainder 
of the estate after a particular estate carved out of it has 
expired. One who becomes entitled to estate after inter
vention of precedent estate or on termination by lapse of 
time of rights of precedent estate created at same time. 
In re Washburn's Will, 44 Misc.2d 56, 252 N.Y.S.2d 948, 
952. 
Under a will, the remainderman is the party who will 
receive what is left of the decedent's property after all 
specific bequests have been satisfied. 
Remainder vested subject to being divested. A re
mainder given to one person, with proviso that it shall 
go to another under certain contingencies. In re 
Barnes' Estate, 155 Misc. 320, 279 N.Y .S. 11 7. 
Remand. To send back. The act of an appellate court 
when it sends a case back to the trial court and orders 
the trial court to conduct limited new hearings or an 
entirely new trial, or to take some other further action. 
Amalgamated Workers Union of Virgin Islands v. Hess 
REMEDIAL LAWS OR STATUTES 
Oil Virgin Islands Corp., C.A.Virgin Islands, 478 F.2d 
540, 543. 28 U.S.C.A. § 2106. When a prisoner is 
brought before a judge on habeas corpus, for the purpose 
of obtaining liberty, the judge hears the case, and either 
discharges him or remands him. See also Procedendo. 
Remanentia /rem::mensh(iy);}/. In old English law, a 
remainder. A perpetuity, or perpetual estate. 
Remanent pro defectu emptorum /r;}meyn;}nt prow 
d;}fekt(y)uwem(p)tor;}m/. The return made by the sher
iff to a writ of execution when he has not been able to 
sell the property seized, that the same remains unsold 
for want of buyers. 
Remanet /rem;}n;}t/. A remnant; that which remains. 
Thus the causes of which the trial is deferred from one 
term to another, or from one sitting to another, are 
termed "remanets." 
Remargining. The furnishing of additional security 
when securities which were originally purchased on 
margin decline in value below a certain percent of their 
market price at the time of purchase. See Margin. 
Remedial. Affording a remedy; giving means of obtain
ing redress; of the nature of a remedy; intended to 
remedy wrongs and abuses, abate faults, or supply de
fects; pertaining to or affecting remedy, as distinguished 
from that which affects or modifies the right. Schultz v. 
Gosselink, 260 Iowa 115, 148 N. W.2d 434, 436. See 
Remedy. 
Remedial action. One which is brought to obtain com
pensation or indemnity. Cummings v. Board of Edu
cation of Oklahoma City, 190 Oklo 533, 125 P.2d 989, 
994. 
Remedial laws or statutes. Legislation providing 
means or method whereby causes of action may be 
effectuated, wrongs redressed and relief obtained is "re
medial". Schmitt V. Jenkins Truck Lines, Inc., 260 Iowa 
556, 149 N.W.2d 789, 792. Statutes which afford a 
remedy, or improve or facilitate remedies already exist
ing for enforcement of rights and redress of in juries. 
Chappy V. Labor and Industry Review Com'n, App., 128 
Wis.2d 318, 381 N.W.2d 552, 556. Those statutes which 
pertain to or affect a remedy, as distinguished from 
those which affect or modify a substantive right or duty. 
Perkins V. Willamette Industries, Inc., Or., 542 P.2d 473, 
475. 
Those designed to correct imperfections in the prior 
law and to cure a wrong where an aggrieved party had 
an ineffective remedy under existing statutes. Applica
tion of City of New York, 71 Misc.2d 1019, 337 N.Y.S.2d 
753, 756. One that intends to afford a private remedy to 
a person injured by the wrongful act. That which is 
designed to correct an existing law, redress an existing 
grievance, or introduce regulations conducive to the 
public good. A statute giving a party a mode of remedy 
for a wrong, where he had none, or a different one, 
before. One which furnishes new remedy to claimant 
who has suffered injustice due to technical requirements 
of general statute. In re McCracken's Estate, 9 Ohio 
Misc. 195, 224 N.E.2d 181, 182.

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REMEDIAL LAWS OR STATUTES 
The underlying test to be applied in determining 
whether a statute is penal or remedial is whether it 
primarily seeks to impose an arbitrary, deterring pun
ishment upon any who might commit a wrong against 
the public by a violation of the requirements of the 
statute, or whether the purpose is to measure and define 
the damages which may accrue to an individual or class 
of individuals, as just and reasonable compensation for a 
possible loss having a causal connection with the breach 
of the legal obligation owing under the statute to such 
individual or class. 
See also Curative (Curative statute). 
Remedy. The means by which a right is enforced or the 
violation of a right is prevented, redressed, or compen
sated. Long Leaf Lumber, Inc. v. Svolos, La.App., 258 
So.2d 121, 124. The means employed to enforce a right 
or redress an in jury, as distinguished from right, which 
is a well founded or acknowledged claim. Chelentis v. 
Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 503, 62 
L.Ed. 1171. 
The rights given to a party by law or by contract 
which that party may exercise upon a default by the 
other contracting party, or upon the commission of a 
wrong (a tort) by another party. 
Remedy means any remedial right to which an ag
grieved party is entitled with or without resort to a 
tribunal. "Rights" includes remedies. U.C.C. § 1-201. 
That which relieves or cures a disease, including a 
medicine or remedial treatment. 
See also Adequate remedy; Adminis trative remedy; Al
ternative relief; Cause of action; Extraordinary remedies; 
Inadequate remedy at law; Mutuality of remedy; Provision
al remedy. 
Civil remedy. The remedy afforded by law to a private 
person in the civil courts in so far as his private and 
individual rights have been injured by a delict or crime; 
as distinguished from the remedy by criminal prosecu
tion for the injury to the rights of the public. 
Cumulative remedy. See Cumula tive. 
Equitable remedy. See Equity; Injunction; Performance 
(Specific performance); Reformation. 
Extraordinary remedy. See Extraordinary. 
Joinder of remedies. See Joinder. 
Legal remedy. A remedy available, under the particular 
circumstances of the case, in a court of law, as distin
guished from a remedy available only in equity. Proce
durally, this distinction is no longer generally relevant, 
for under Rules of Civil Procedure there is only one 
form of action known as a "civil action." Rule 2. Com
pare Equity. 
Remedy over. A person who is primarily liable or re
sponsible, but who, in turn, can demand indemnification 
from another, who is responsible to him, is said to have 
a "remedy over." For example, a city, being compelled 
to pay for injuries caused by a defect in the highway, 
has a "remedy over" against the person whose act or 
1294 
negligence caused the defect, and such person is said to 
be "liable over" to the city. See Subrogation. 
REMIC. A Real Estate Mortgage Investment Conduit 
created by the 1986 Tax Reform Act for years beginning 
in 1987 providing a special tax vehicle for organizations 
that issue to investors different classes of interests 
which are backed by a pool of mortgages on real estate. 
Remise Ir�mayz/. To remit or give up. A formal word 
in deeds of release and quitclaim; the usual phrase 
being "remise, release, and forever quitclaim." 
Remise de la dette Ir�miyz d� la det/. In French law, 
the release of a debt. 
Remission. A release or extinguishment of a debt. It is 
conventional, when it is expressly granted to the debtor 
by a creditor having a capacity to alienate; or tacit , 
when the creditor voluntarily surrenders to his debtor 
the original title, under private signature constituting 
the obligation. 
A diminution or abatement of symptoms of a disease; 
also the period during which such diminution occurs. 
In re Meyers, 410 Pa. 455, 189 A.2d 852, 862. 
Forgiveness or condonation of an offense or injury. 
At common law, the act by which a forfeiture or 
penalty is forgiven. United States v. Morris, 23 U.S. (10 
Wheat.) 246, 6 L.Ed. 314. 
Remissius imperanti melius 
imp�rrentay miyl(i)y�s p�riy t�r/. 
not too strictly is better obeyed. 
paretur I r�mis�s 
A man commanding 
Remissness. The doing of the act in question in a tardy, 
negligent, or careless manner; but term does not apply 
to the entire omission or forbearance of the act. 
Remit. To send or transmit; as to remit money. To 
send back, as to remit a check or refer a case back to a 
lower court for further consideration. To give up; to 
pardon or forgive; to annul; to relinquish; as to remit a 
fine, sentence, or punishment. 
Remitment Ir�mitm�nt /. The act of sending back to 
custody; an annulment. 
Remittance Ir�mit�ns /. Money sent by one person to 
another, either in specie, bill of exchange, check, or 
otherwise. 
Remittee. A person to whom a remittance is made. 
Remitter Ir�mit�r/. The relation back of a later defec
tive title to an earlier valid title. Remitter occurs where 
he who has the true property or jus proprietatis in lands, 
but is out of possession thereof, and has no right to enter 
without recovering possession in an action, has after
wards the freehold cast upon him by some subsequent 
and of course defective title. In this case he is remitted, 
or sent back by operation of law, to his ancient and more 
certain title. 
Remitting bank. Any payor or intermediary bank re
mitting for an item. U.C.C. § 4-105(£). 
Remittit damna Ir�mit�t dremn�/. Lat. An entry on 
the record, by which the plaintiff declares that he remits

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1295 
a part of the damages which have been awarded him. 
See Remittitur. 
Remittitur Ir�mit�t�r /. The procedural process by 
which an excessive verdict of the jury is reduced. Pip
pen v. Denision, Division of Abex Corp., 66 Mich.App. 
664, 239 N.W.2d 704, 710. If money damages awarded 
by a jury are grossly excessive as a matter of law, the 
judge may order the plaintiff to remit a portion of the 
award. In the alternative, the court may order a com
plete new trial or a trial limited to the issue of damages. 
The court may also condition a denial of a motion for 
new trial upon the filing by the plaintiff of a remittitur 
in a stated amount. Fed.R.Civil P. 59(a). Compare 
Additur. 
Remittitur of record Ir�mit�t�r �v rek�r d/. The re
turning or sending back by a court of appeal of the 
record and proceedings in a cause, after its decision 
thereon, to the court whence the appeal came, in order 
that the cause may be tried anew (where it is so or
dered), or that judgment may be entered in accordance 
with the decision on appeal, or execution be issued, or 
any other necessary action be taken in the court below. 
Remittor Iramitar/. A person who makes a remittance 
to another. 
Remnant rule. The rule that width of lot, frontage of 
which is not specified on plat specifying frontage of all 
other lots in same block, is length of block, minus total 
width of other lots. 
Remodel. To model anew; reconstruct, recast, reform, 
reshape, reconstruct, to make over in a somewhat differ
ent way. Board of Com'rs of Guadalupe County v. State, 
43 N.M. 409, 94 P.2d 515, 520. 
Remonitization. Removal of one type of money from a 
country's legal tender list. Also, the reestablishment of 
a currency system which has not functioned for a time. 
Remonstrance I ramonstrans I . Expostulation; showing 
of reasons against something proposed; a representation 
made to a court or legislative body wherein certain 
persons unite in urging that a contemplated measure be 
not adopted or passed. A formal protest against the 
policy or conduct of the government or of certain offi
cials drawn up and presented by aggrieved citizens. 
Remote. At a distance; afar off; inconsiderable; slight. 
Remote cause. In the law of negligence with respect to 
injury or accident, a cause which would not according to 
experience of mankind lead to the event which hap
pened. Riley v. Burgess, Ky., 410 S.W.2d 712, 713. One 
where the effect is uncertain, vague, or indeterminate, 
and where the effect does not necessarily follow. Jag
gers v. Southeastern Greyhound Lines, D.C.Tenn., 34 
F.Supp. 667, 669. A cause operating mediately through 
other causes to produce effect. Improbable cause. 
Nashville, C. & St. L. Ry. v. Harrell, 21 Tenn.App. 353, 
110 S.W.2d 1032, 1038. See also Cause. 
Proximate cause distinguished. "Proximate cause" is 
cause in which is involved idea of ' necessity, and one 
from which effect must follow, while "remote cause", 
REMOVAL FROM OFFICE 
though necessary for existence of effect, is one not 
necessarily implying existence of effect. Hebert v. Unit
ed Gas Pipe Line Co., La.App., 210 So.2d 71, 74. 
"Proximate cause" is a cause which would probably, 
according to the experience of mankind, lead to the 
event which happened, and "remote cause" is ' a cause 
which would not, according to such experience, lead to 
such an event. Miller v. Watts, Ky., 436 S.W.2d 515, 
519. 
To determine whether a given cause is a "proximate 
cause" or a "remote cause," it must be determined 
whether the facts constitute a succession of events, so 
linked together that they become a natural whole, or 
whether chain of events is so broken that they become 
independent, and final result cannot be said to be the 
natural and probable consequence of the primary cause, 
the negligence of defendants. 
Remote damage. See Damages. 
Remoteness. Want of close connection between a wrong 
and the injury which prevents the party injured from 
claiming compensation from the wrongdoer. 
Remoteness of evidence. When the fact or facts pro
posed to be established as a foundation from which 
indirect evidence may be drawn, by way of inference, 
have not a visible, plain, or necessary connection with 
the proposition eventually to be proved, such evidence is 
rejected for "remoteness." 
Remote possibility. In the law of estates, a double 
possibility, or a limitation dependent on two or more 
facts or events both or all of which are contingent and 
uncertain; as, for example, the limitation of an estate to 
a given man provided that he shall marry a certain 
woman and that she shall then die and he shall marry 
another. 
Remoto impedimento, emergit actio Iramowtow 
impedamentow am:}rj�t reksh(iy)ow/. The impediment 
being removed, the action rises. When a bar to an 
action is removed, the action rises up into its original 
efficacy. 
Removal. In a broad sense, the transfer of a person, 
thing, or case from one place to another. See also 
Asportation. 
As used in statutes relative to removal from state is 
often limited to such absence from state as amounts to a 
change of residence. 
See also Recall. 
Removal bond. In customs law, a bond furnished for 
possible duties by one who removes imported goods from 
a warehouse for export. Also, bond required in some 
states when a party to pending action in one court 
desires to remove action to another court. 
Removal from office. Deprivation of office by act of 
competent superior officer acting within scope of author
ity. "Suspension" is the temporary forced removal from 
the exercise of office; "removal" is the dismissal from 
office. See Election (Recall election); Imp eachment.

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REMOVAL OF CAUSES 
Removal of causes. The transfer of a case from one 
court to another; e.g. from one state court to another, or 
from state court to federal court. Commonly used of the 
transfer of the jurisdiction and cognizance of an action 
commenced but not finally determined, with all further 
proceedings therein, from one trial court to another trial 
court. More particularly, the transfer of a cause of 
ac�ion, before trial or final hearing thereof, from a state 
court to the United States District Court, under 28 
U.S.C.A. § 1441 et seq. 
Removal to avoid tax. Within a statute relating to 
forfeiture, some transfer of the thing involved from 
some definite place of manufacture, production, origin, 
or the like to some other place, whereat or wherefrom 
collection of tax on it might be less easily effected. 
Removing cloud from title. Acts or proceedings neces
sary to render title marketable. See Action to quiet title. 
Remuneration Ir;}myUwn;}reysh:;m/. Payment; reim
bursement. Reward; recompense; salary; compensa
tion. 
Renant, or reniant Ir;}nay;}ntl. In old English law, 
denying. 
Rencounter Irenkawnt ;}r/. A sudden hostile collision, 
as with an enemy; an unexpected encounter or meeting, 
as of travelers; a contest or debate; a sudden meeting as 
opposed to a duel which is deliberate. 
Render, v. To give up; to yield; to return; to surrender. 
Also to pay or perform; used of rents, services, and the 
like. 
Render judgment. To pronounce, state, declare, or an
nounce the judgment of the court in a given case or on a 
given state of facts; not used with reference to judg
ments by confession, and not synonymous with "enter
ing," "docketing," or "recording" the judgment. Judg
ment is "rendered" when decision is officially an
nounced, either orally in open court or by memorandum 
filed with clerk. Wooldridge v. Groos Nat. Bank, Tex. 
Civ.App., 603 S.W.2d 335, 344. See Rendition of judg
ment. 
Render verdict. To agree on and to report the verdict in 
due form. To return the written verdict into court and 
hand it to the trial judge who announces it in open 
court. 
Render, n. In feudal law, used in connection with rents 
and heriots. Goods subject to rent or heriot-service were 
said to lie in render, when the lord might not only seize 
the identical goods, but might also distrain for them. 
Rendezvous Irondeyvliw l"diyo I. Fr. A place appointed 
for meeting. Especially used of places appointed for the 
assembling of troops, the coming together of the ships of 
a fleet, or the meeting of vessels and their convoy. 
Rendition. The return of a fugitive to the State in 
which he is accused of having committed a crime, by the 
order of the governor of the State to which the fugitive 
has gone. See also Extradition; Interstate rendition. 
1296 
Rendition of judgment. Rendition of a judgment is 
effected when trial court in open court declares the 
decision of the law upon the matters at issue, and it is 
distinguishable from "entry of judgment," which is a 
purely ministerial act by which the judgment is made of 
record and preserved. Ex parte Gnesoulis, Tex.Civ.App., 
525 S.W.2d 205, 209. A judgment is rendered as of date 
on which trial judge declares in open court his decision 
on matters submitted to him for adjudication, and oral 
pronouncement by the court of its decision is sufficient 
for "rendition of judgment". Farr v. McKinzie, Tex.Civ. 
App., 477 S.W.2d 672, 676. 
It is the pronouncement of the court of its conclusions 
and decision upon the matter submitted to it for adjudi
cation; a judgment may be rendered either orally in 
open court or by memorandum filed with the clerk. 
Travelers Express Co., Inc. v. Winters, Tex.Civ.App., 488 
S.W.2d 890, 892. "Rendition" of judgment is distin
guishable from its "entry" in the records. Rehm v. 
Fishman, Mo.App., 395 S.W.2d 251, 255. See Entering 
judgment; Judgment. 
Rendition of verdict. See Render. 
Renegotiation. Lit. To negotiate again (e.g., the terms 
of a contract or lease). As to government contracts, it 
consists of a review of a contract after its performance 
to determine whether excess profits have been made. If 
they were made, the government can recapture them. 
Renegotiation Act. Federal law which provides for 
reexamination of government contracts to determine 
whether excess profits were made which can be recap
tured by the government. 50 U.S.C.A.App. 11 91 et seq. 
See Renegotiation Board. 
Renegotiation Board. The Renegotiation Board was 
created as an independent establishment in the execu
tive branch by the Renegotiation Act of 1951 (65 Stat. 7; 
50 U.S.C.A.App. § 121 1) and was organized on October 8, 
1951. The Board's function was the elimination of ex
cessive profits on defense and space contracts and relat
ed subcontracts. This federal agency was terminated 
and its property and records were transferred to Gener
al Services Administration in 1979 pursuant to Pub.L. 
95-43 1, Title V, § 50 1. 
Renew. To make new again; to restore to freshness; to 
make new spiritually; to regenerate; to begin again; to 
recommence; to resume; to restore to existence; to 
revive; to reestablish; to recreate; to replace; to grant 
or obtain an extension of. To "renew" a contract means 
to begin again or continue in force the old contract. 
East Bay Union of Machinists, Local 1304, United Steel
workers of America, AFL-CIO v. Fibreboard Paper 
Products Corp., D.C.Cal., 285 F.Supp. 282, 287. 
Renewal. The act of renewing or reviving. A revival or 
rehabilitation of an expiring subject; that which is made 
anew or re-established. The substitution of a new right 
or obligation for another of the same nature. A change 
of something old to something new. To grant or obtain 
extension of; to continue in force for a fresh period, as 
commonly. used with reference to notes and bonds im
porting a postponement of maturity of obligations dealt

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1297 
with. An extension of time in which that obligation 
may be discharged; an obligation being "renewed" when 
the same obligation is carried forward by the new paper 
or undertaking, whatever it may be. · Campbell River 
Timber Co. v. Vierhus, C.C.A.Wash., 86 F.2d 673, 675. 
Renounce. To make an affirmative declaration of aban
donment. To reject; cast off; repudiate; disclaim; for
sake; abandon; divest one's self of a right, power, or 
privilege. Usually it implies an affirmative act of dis
claimer or disavowal. See also Renunciation; Repudiation. 
Will. Under law of many states, a widow may waive or 
relinquish her rights under the will of her husband and 
claim her statutory rights. 
Renovare Iren:lveriy /. Lat. In old English law, to 
renew. Annuatim renovare, to renew annually. A 
phrase applied to profits which are taken and the prod
uct renewed again. 
Rent. Consideration paid for use or occupation of prop
erty. In a broader sense, it is the compensation or fee 
paid, usually periodically, for the use of any rental 
property, land, buildings, equipment, etc. 
At common law, term referred to compensation or 
return of value given at stated times for the possession 
of lands and tenements corporeal. A sum of money or 
other consideration, issuing yearly out of lands and 
tenements corporeal; something which a tenant renders 
out of the profits of the land which he enjoys; a compen
sation or return, being in the nature of an acknowledg
ment or recompense given for the possession of some 
corporeal inheritance. 2 Bl.Comm. 41. In re Perlmut
ter's Will, 156 Misc. 571, 282 N.Y.S. 282. 
The payment of royalty under a mineral lease. Rob
inson v. Horton, 197 La. 919, 2 So.2d 647, 649. 
In Louisiana, the contract of rent of lands is a contract 
by which one of the parties conveys and cedes to the 
other a tract of land, or any other immovable property, 
and stipulates that the latter shall hold it as owner, but 
reserving to the former an annual rent of a certain sum 
of money, or of a certain quantity of fruits, which the 
other party binds himself to pay him. It is of the 
essence of this conveyance that it be made in perpetuity. 
If it be made for a limited time, it is a lease. Civ.Code 
La. arts. 2779, 2780. 
Base rent. A specific amount used as a minimum rent 
in a lease which uses a percentage or overage for addi
tional rent. 
Fee farm rent. A rent charge issuing out of an estate in 
fee; a perpetual rent reserved on a conveyance of land 
in fee simple. 
Ground rent. See that title. 
Net rent. Rent after all expenses. 
Quit rent. Certain established rents of the freeholders 
and ancient copyholders of manors were so called, be
cause by their payment the tenant was free and "quit" 
of all other services. 
RENTE VIAGERE 
Rack rent. A rent of the full annual value of the 
tenement or near it. 
Rental-rights. In old English law, a species of lease 
usually granted at a low rent and for life. Tenants 
under such leases were called "rentalers" or "kindly 
tenants." 
Rent-charge. This arises where the owner of the rent 
has no future interest or reversion in the land. It is 
usually created by deed or will, and is accompanied with 
powers of distress and entry. 
Rent-roll. A list of rents payable to a particular person 
or public body. 
Rent seck. Barren rent; a rent reserved by deed, but 
without any clause of distress. 
Rent-service. This consisted at common law of fealty, 
together with a certain rent, and was the only kind of 
rent originally known to the common law. It was so 
called because it was given as a compensation for the 
services to which the land was originally liable. 
Rents of assize. The certain and determined rents of 
the freeholders and ancient copyholders of manors. Ap
parently so called because they were assized or made 
certain, and so distinguished from a redditus mobilis, 
which was a variable or fluctuating rent. 
Rents resolute. Rents anciently payable to the crown 
from the lands of abbeys and religious houses; and after 
their dissolution, notwithstanding that the lands were 
demised to others, yet the rents were still reserved and 
made payable again to the crown. 
Rentage. Rent. 
Rental. See Rent. 
Rent control. A restriction or limitation imposed in 
certain cities upon the maximum rent that may be 
charged on rental property. 
Rente Iront/. In French law, the annual return which 
represents the revenue of a capital or of an immovable 
alienated. The constitution of rente is a contract by 
which one of the parties lends to the other a capital 
which he agrees not to recall, in consideration of the 
borrower's paying an annual interest. It is this interest 
which is called "rente." The word is therefore nearly 
synonymous with "annuity." 
Rente fonciere Iront fonsyer/. A rent which issues out 
of land, and it is of its essence that it be perpetual, for, if 
it be made but for a limited time, it is a lease. It may, 
however, be extinguished. 
Rente viagere Iront v(i)yajer/. That species of rente, 
the duration of which depends upon the contingency of 
the death of one or more persons indicated in the 
contract. The uncertainty of the time at which such 
death may happen causes the rente viagere to be includ
ed in the number of aleatory contracts. Defines the 
contract of annuity as that by which one party delivers 
to another a sum of money, and agrees not to reclaim it 
so long as the receiver pays the rent agreed upon.

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RENTIER 
Rentier Irontyey/. In French law, a fundholder, a per
son having an income from personal property. 
Rents, issues and profits. The profits arising from 
property generally. Rents collected by party in posses
sion; the net profits. Phrase does not apply to rental 
value or value of use and occupation. People v. Gustaf
son, 53 CaI.App.2d 230, 127 P.2d 627, 632. 
Rent strike. An organized undertaking by tenants in 
which rent is withheld until grievances between land
lord and tenants are settled. 
Renunciation. The act by which a person abandons a 
right acquired without transferring it to another. 
The Model Penal Code (§ 5.01( 4» recognizes renun
ciation of criminal purpose (e.g., abandonment of effort 
to commit crime) as an affirmative defense. See e.g. 
18 U.S.C.A. § 373(b). See Withdrawal from criminal activity. 
Under the Uniform Commercial Code the unilateral 
act of the holder, usually, without consideration, where
by he expresses the intention of abandoning his rights 
on the instrument or against one or more parties there
to. U.C.C. § 1-107. A means whereby a holder dis
charges a party's liability on an instrument by declaring 
an intention to discharge in a signed and delivered 
writing. U.C.c. § 3-605( 1)(b). Within Uniform Com
mercial Code it is a gratuitous abandonment or giving 
up of right, and does not require a consideration. Miller 
v. Gayman, Mo., 482 S.W.2d 414 or 419. 
In connection with wills, the act of waiving a will and 
claiming a statutory share as in the case of a spouse 
whose share under a will is less than her statutory 
share. See Election (law of wills), Election by spouse. 
See also Disclaimer; Repudiation. 
Renvoi doctrine. Irenv6 y/. The "doctrine of renvoi" is 
a doctrine under which court in resorting to foreign law 
adopts rules of foreign law as to conflict of laws, which 
rules may in turn refer court back to law of forum. 
Green v. Robertshaw-Fulton Controls Co., D.C.lnd., 29 
F.R.D. 490, 500; Cooper v. Cherokee Village Develop
ment Co., 236 Ark. 37, 364 S.W.2d 158, 162. 
Reo absente Iriyow ;}bsentiy/. Lat. The defendant 
being absent; in the absence of the defendant. 
Reopening a case. Is to permit the introduction of new 
evidence and, practically to permit a new trial. 
Reorganization. Act or process of organizing again or 
anew. People ex reI. Barrett v. Halsted Street State 
Bank, 295 Ill.App. 193, 14 N.E.2d 872, 876. 
General term describing corporate amalgamations or 
readjustments occurring, for example, when one corpo
ration acquires another in a merger or acquisition, a 
single corporation divides into two or more entities, or a 
corporation makes a substantial change in its capital 
structure. The exchange of stock and other securities in 
a corporate reorganization can be effected favorably for 
tax purposes if certain statutory requirements are fol
lowed strictly. 
The classification of the Internal Revenue Code 
(§ 368(a)(1» is widely used in general corporate litera-
1298 
ture. A Class A reorganization is a statutory merger or 
consolidation (i.e., pursuant to the business corporation 
act of a specific state). A Class B reorganization is a 
transaction by which one corporation exchanges its vot
ing shares for the voting shares of another corporation. 
A Class C reorganization is a transaction in which one 
corporation exchanges its voting shares for the property 
and assets of another corporation. A Class D reorgani
zation is a "spin off" of assets by one corporation to a 
new corporation; a Class E reorganization is a recapital
ization; a Class F reorganization is a "mere change of 
identity, form, or place of organization, however effect
ed." A Class G reorganization is a "transfer by a 
corporation of all or part of its assets to another corpora
tion in a title 11 [bankruptcy] or similar case". 
Reorganization of a corporation under Bankruptcy 
Code Chapter 11 proceedings involves the preparation of 
a plan of reorganization by the bankruptcy trustee, the 
submission thereof to the court, and, after a hearing, the 
determination of the feasibility of such plan by the 
court, followed by the court's approval thereof if it finds 
such plan is feasible and proper. See also Bankr uptcy 
proceedings. 
Tax free reorganization. Under the Internal Revenue 
Code, a corporate reorganization wherein a corporation 
which is a party thereto exchanges property, pursuant 
to a plan of reorganization, solely for stock or securities 
of a second corporate party, without recognition of gain 
or loss. I.R.C. § 361. 
Repair. To mend, remedy, restore, renovate. To restore 
to a sound or good state after decay, injury, dilapidation, 
or partial destruction. Congress Bar and Restaurant 
Inc. v. Transamerica Ins. Co., 42 Wis.2d 56, 165 N.W.2d 
409, 412. The word "repair" contemplates an existing 
structure or thing which has become imperfect, and 
means to supply in the original existing structure that 
which is lost or destroyed, and thereby restore it to the 
condition in which it originally existed, as near as may 
be. Childers v. Speer, 63 Ga.App. 848, 12 S.E.2d 439, 
440. 
In accounting, repairs are chargeable to current in
come whereas an improvement is a capital expenditure 
which requires depreciation over the life of the improve
ment. See also Extraordinary repairs. 
Landlord has obligation to use reasonable care to keep 
premises in such repair as to meet local building and 
sanitary code requirements. Boston Housing Authority 
v. Hemingway, 363 Mass. 184, 293 N.E.2d 831. See 
Habitabil ity; Warranty (Warranty of habitability). 
Reparation I rep;}reysh;}n I . Payment for an injury or 
damage; redress for a wrong done. Several states have 
adopted the Uniform Crime Victims Reparation Act. 
Certain federal statutes also provide for reparations for 
violation of Act; e.g. persons suffering losses because of 
violations of Commodity Futures Trading Act may seek 
reparation under the Act against violator. 7 U.S.C.A. 
§ 18. See also Restitution. 
Payment made by one country to another for damages 
during war.

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1299 
Repartiamento Ireypartiya mentow/. In Spanish law, a 
judicial proceeding for the partition of property held in 
common. 
Repatriation Iriypeytriyeysh anrpretO I. The return or 
restoration of a person or object to his or its country of 
origin. The return of profits from foreign investments 
to the investor's country. Compare Deportation. See 
also Expatriation. 
Repay. To pay back; refund; restore; return. 
Repeal. The abrogation or annulling of a previously 
existing law by the enactment of a subsequent statute 
which declares that the former law shall be revoked and 
abrogated (which is called "express" repeal), or which 
contains provisions so contrary to or irreconcilable with 
those of the earlier law that only one of the two statutes 
can stand in force (called "implied" repeal). To revoke, 
abolish, annul, to rescind or abrogate by authority. Gol
conda Lead Mines v. Neill, 82 Idaho 96, 350 P.2d 221, 
223. See also Abrogation; Express repeal. 
Amendment distinguished. "Repeal" of a law means its 
complete abrogation by the enactment of a subsequent 
statute, whereas the "amendment" of a statute means 
an alteration in the law already existing, leaving some 
part of the original still standing. 
Repeaters. Persons who commit crime and are sen
tenced, and then commit another and are sentenced 
again. See Habitual criminal; Recidivist. 
Repellitur a sacramento infamis Irapelatar ey srekra
mentow infeymas/. An infamous person is repelled or 
prevented from taking an oath. 
Repellitur exceptione cedendarum actionum 
I rapebtar aksepshiy6wniy siydenderam rekshiy6wnam/. 
He is defeated by the plea that the actions have been 
assigned. 
Repertory Irepart(o)riy /. In French law, the inventory 
or minutes which notaries make of all contracts which 
take place before them. 
Repetition. In the civil law, a demand or action for the 
restoration of money paid under mistake, or goods deliv
ered by mistake or on an unperformed condition. See 
Solutio indebiti. 
Repetitum namium Irapetatam neymiyam/. A re
peated, second, or reciprocal distress; withernam. 
Repetundre, or pecunire repetundre I(p akyuwniyiy) 
repat�ndiy/. In Roman law, the terms used to designate 
such sums of money as the socii of the Roman state, or 
individuals, claimed to recover from magis tra tus, ju
dices, or publici curatores, which they had improperly 
taken or received in the provincire, or in the urbs Roma, 
either in the discharge of their jurisdictio, or in their 
capacity of judices, or in respect of any other public 
function. Sometimes the word "repetundre" was used to 
express the illegal act for which compensation as sought. 
Repetundarum crimen Irepat;}nderam krayman/. In 
Roman law, the crime of bribery or extortion in a 
magistrate, or person in any public office. 
REPLEVIN 
Replace. To place again; to restore to a former condi
tion. Illinois Cent. R. Co. v. Franklin County, 387 Ill. 
301, 56 N.E.2d 775, 779. Term, given its plain, ordinary 
meaning, means to supplant with substitute or equiva
lent. Olenick v. Government Employees Ins. Co., 42 
A.D.2d 760, 346 N.Y.S.2d 320, 321. To take the place of. 
Replacement cost. The present cost of replacing the 
improvement with one having the same utility. State 
Highway Commission v. Demarest, 263 Or. 590, 503 P.2d 
682, 690. Cost of replacing lost, stolen or destroyed 
property to its former use and value. 
Replacement insurance. Insurance coverage which 
provides that the loss will be measured by replacement 
of the property new. If the property is actually re
placed, the measure is the difference between the depre
ciated value and the replacement cost. 
Replead. To plead anew; to file new pleadings. 
Repleader. In common law pleading, when, after issue 
has been joined in an action, and a verdict given there
on, the pleading is found (on examination) to have 
miscarried and failed to effect its proper object, viz., of 
raising an apt and material question between the par
ties, the court will, on motion of the unsuccessful party, 
award a repleader; that is, will order the parties to 
plead de novo for the purpose of obtaining a better issue. 
Under modern rules practice, amendments to pleadings 
are liberally allowed. Fed.R.Civil P. 15. 
Replegiare Iraplejiyeriy/. To replevy; to redeem a 
thing detained or taken by another by putting in legal 
sureties. 
Repleviable, or replevisable I rapleviyaball raplevaza
ball. Property is said to be repleviable or replevisable 
when proceedings in replevin may be resorted to for the 
purpose of trying the right to such property. 
Replevin Iraplevan/. An action whereby the owner or 
person entitled to repossession of goods or chattels may 
recover those goods or chattels from one who has wrong
fully distrained or taken or who wrongfully detains such 
goods or chattels. Jim's Furniture Mart, Inc. v. Harris, 
42 Ill.App.3d 488, 1 Ill.Dec. 175, 176, 356 N.E.2d 175, 
176. Also refers to a provisional remedy that is an 
incident of a replevin action which allows the plaintiff 
at any time before judgment to take the disputed proper
ty from the defendant and hold the property pendente 
lite. Other names for replevin include Claim and deliv
ery, Detinue, Revendication, and Sequestration (q.v.). 
Under the following conditions a buyer of goods may 
have the right of replevin: "The buyer has a right of 
replevin for goods identified to the contract if after 
reasonable effort he is unable to effect cover for such 
goods or the circumstances reasonably indicate that 
such effort will be unavailing or if the goods have been 
shipped under reservation and satisfaction of the securi
ty interest in them has been made or tendered." See 
U.C.C. § 2- 711 (2)(b); § 2-716(3). 
See also Replevy; Self-help. 
Personal replevin. At common law, a species of action to 
replevy a man out of prison or out of the custody of any

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REPLEVIN 
private person. It took the place of the old writ de 
homine replegiando; but, as a means of examining into 
the legality of an imprisonment, it is now superseded by 
the writ of habeas corpus. 
Replevin bond. A bond executed to indemn ify the offi
cer who executed a writ of replevin and to indemn ify the 
defendant or person from whose custody the property 
was taken for such damages as he may sustain. Such 
bond guarantees that the replevisor will have the prop
erty in the same condition to abide the decision of the 
court. Kelso v. Hanson, Tex.Civ.App., 388 S.W.2d 396, 
399. 
Replevin cepit. Replevin action in case where defendant 
has both wrongfully taken and wrongfully detained the 
property. Compare Replevin in detinet, below. 
Replevin in detinet. Replevin action in case where 
defendant rightfully obtained possession of property but 
wrongfully detains it. Compare Replevin in cepit, above. 
Replevish /r�plt3v�sh/. In old English law, to let one to 
mainprise upon surety. 
Replevisor /r�plev�z�r/. The plaintiff in an action of 
replevin. 
Replevy /r�pleviy/. In reference to the action of replev
in, to redeliver goods which have been distrained, to the 
original possessor of them, on his pledging or giving 
security to prosecute an action against the distrainor for 
the purpose of trying the legality of the distress. Also 
the bailing or liberating a man from prison on his 
finding bail to answer for his forthcoming at a future 
time. See also Replevin. 
Replevy bond. Such bond guarantees that the replevi
sor will have the property in the same condition to abide 
the decision of the court. Kelso v. Hanson, Tex., 388 
S.W.2d 396, 399. 
Repliant, or replicant /r�play�ntlrepl�k�nt/. A litigant 
who replies or files or delivers a replication. 
Replicare /repl�keriy/. Lat. In the civil law and old 
English pleading, to reply; to answer a defendant's plea. 
Replicatio /repbkeysh(iy)ow/. Lat. In the civil law 
and old English pleading, the plaintiffs answer to the 
defendant's exception or plea; corresponding with and 
giving name to the replication in modern pleading. 
Replication. In common law pleading, a reply made by 
the plaintiff in an action to the defendant's plea, or in a 
suit in chancery to the defendant's answer. See Reply. 
In equity practice (now obsolete in the federal and 
most state courts), a general replication is a general 
denial of the truth of defendant's plea or answer, and of 
the sufficiency of the matter alleged in it to bar the 
plaintiffs suit, and an assertion of the truth and suffi
ciency of the bill. A special replication is occasioned by 
the defendant's introducing new matter into his plea or 
answer, which makes it necessary for the plaintiff to put 
in issue some additional fact on his part in avoidance of 
such new matter. 
1300 
Reply. In its general sense, the plaintiffs answer to the 
defendant's set-off or counterclaim. Under Fed.R.Civil 
P. 7(a), a reply is only allowed in two situations: to a 
counterclaim denominated as such, or, on order of court 
to an answer or a third-party answer. Compare Answer. 
Report. An official or formal statement of facts or 
proceedings. To give an account of, to relate, to tell, to 
convey or disseminate information. State v. Fenster, 2 
Conn.Cir. 184, 199 A.2d 177, 181. See also Annual report; 
Consumer report; Credit report. 
The formal statement in writing made to a court by a 
master, clerk, or referee, as the result of his inquiries 
into some matter referred to him by the court. Fed.R. 
Civil P. 53. See Master's report. 
A "report" of a public official is distinguished from a 
"return" of such official, in that "return" is typically 
concerned with something done or observed by officer, 
while "report" embodies result of officer's investigation 
not originally occurring within his personal knowledge. 
E. K. Hardison Seed Co. v. Jones, C.C.A.6, 149 F.2d 252, 
257. 
The name is also applied (usually in the plural) to the 
published volumes, appearing periodically, containing 
accounts of the various cases argued and determined in 
the various courts of record with the decisions and 
opinions thereon. See Reporter; Reports or reporters. 
Reporter. A person who reports the decisions of a court 
of record; also, published volumes of decisions by a court 
or group of courts. The "court reporter" is the person 
who records court proceedings in court and later tran
scribes such. See also Court reporter; Reports or report
ers. 
Report of legislative committee. That communication 
which the chairman of the committee makes to the 
house at the close of the investigation upon which it has 
been engaged. 
Reports or reporters. Published volumes of case deci
sions by a particular court or group of courts; e.g. 
Supreme Court Reporter, Federal Reporter, Federal 
Supplement. 
Term includes: (1) (court reports) published judicial 
cases arranged according to some grouping, such as 
jurisdiction, court, period of time, subject matter or case 
significance, (2) (administrative reports or decisions) 
published decisions of an administrative agency, (3) an
nual statements of progress, activities or policy issued by 
an administrative agency or an association. 
See also Law reporters or reports; Reporter; Un ited 
States Reports. 
Reports, The. The name given, par excellence, to Lord 
Coke's Reports, from 14 Eliz. to 13 Jac. I, which are cited 
as "Rep." or "Coke." They are divided into thirteen 
parts, and the modern editions are in six volumes, 
including the index. 
Repose statutes. See Statute (Statute of repose). 
Repositorium /r;poz�t6r(i)y�m/. A storehouse or place 
wherein things are kept; a warehouse.

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1301 
Repossession. To take back-as when a seller or bank 
or finance company repossesses or takes back.an item if 
the buyer misses an installment payment. To recover 
goods sold on credit or in installments when the buyer 
fails to pay for them. U.C.C. § 9-503. The conditions 
for repossession are entirely statutory and due process 
standards must be met as to notice, manner, etc. 
Self-help (i.e. without legal process) repossession of 
collateral is permitted under U.C.C. § 9-503. See Self
help. 
Represent. To appear in the character of; personate; to 
exhibit; to expose before the eyes. To represent a thing 
is to produce it publicly. To represent a person is to 
stand in his place; to speak or act with authority on 
behalf of such person; to supply his place; to act as his 
substitute or agent. See also Agent; Power of appoint
ment; Representative. 
Representation. Any conduct capable of being turned 
into a statement of fact. Scandrett v. Greenhouse, 244 
Wis. 108, 11 N.W.2d 510, 512. Statement of fact made 
to induce another to enter into contract. As element of 
actionable fraud includes deeds, acts or artifices calcu
lated to mislead another, as well as words or positive 
assertions. Kestner v. Jakobe, Mo.App. 446 S.W.2d 188, 
193. See also Material fact; Misrepresentation; Reliance. 
Act of representing another. See Represent. 
Attorney, right to. See Counsel, right to. 
Contracts. A statement express or implied made by one 
of two contracting parties to the other, before or at the 
time of making the contract, in regard to some past or 
existing fact, circumstance, or state of facts pertinent to 
the contract, which is influential in bringing about the 
agreement. 
False representation. See False representation; Fraud; 
Material fact; Misrepresentation. 
Insurance. A collateral statement, either by writing not 
inserted in the policy or by parol, of such facts or 
circumstances, relative to the proposed adventure, as 
are necessary to be communicated to the underwriters, 
to enable them to form a just estimate of the risks. The 
allegation of any facts, by the applicant to the insurer, 
or vice versa, preliminary to making the contract, and 
directly bearing upon it, having a plain and evident 
tendency to induce the making of the policy. The state
ments may or may not be in writing, and may be either 
express or by obvious implication. 
Law of distribution and descent. The principle upon 
which the issue of a deceased person take or inherit the 
share of an estate which their immediate ancestor would 
have taken or inherited, if living; the taking or inherit
ing per stirpes. In re Paterson's Estate, Cal.App., 76 
P.2d 138, 143. 
Material representation. One having been a real moving 
cause inducing the making of a contract. A representa
tion is "material" if it relates directly to matter in 
controversy and is of such nature that ultimate result 
would not have followed if there had been no representa
tion or if one who acted upon it had been aware of its 
REPRESENTATION, ESTOPPEL BY 
falsity. Schoen v. Lange, Mo.App., 256 S.W.2d 277, 281. 
To be "materia l", a representation must be of such 
character that if it had not been made, the contract or 
transaction would not have been entered into. Zinn v. 
Ex-Cell-O Corp., Cal.App., 141 P.2d 948, 958. 
In life insurance, one that would influence a prudent 
insurer in determining whether or not to accept the 
risk, or in fixing the amount of the premium in the 
event of such acceptance. 
See Material fact; also, Misrepresentation, below. 
Misrepresentation. An intentional false statement re
specting a matter of fact, made by one of the parties to a 
contract, which is material to the contract and influ
ential in producing it. See False representation; Material 
fact; Misrepresentation. 
Promissory representation. A term used chiefly in insur
ance, and meaning a representation made by the as
sured concerning what is to happen during the term of 
the insurance, stated as a matter of expectation or even 
of contract, and amounting to a promise to be performed 
after the contract has come into existence. 
Representation, estoppel by. It arises when one by 
acts, representations, admissions, or silence when he 
ought to speak out, intentionally or through culpable 
negligence induces another to believe certain facts to 
exist and such other rightfully relies and acts on such 
belief, so that he will be prejudiced if the former is 
permitted to deny the existence of such facts. Carter v. 
Curlew Creamery Co., 16 Wash.2d 476, 134 P.2d 66, 73. 
It differs from estoppel by record, deed, or contract, in 
that it is not based on agreement of parties or finding of 
fact which may not be disputed, and is not mutual, but 
applies to only one party. 
It is the effect of voluntary conduct of a party whereby 
he is absolutely precluded from asserting rights which 
might perhaps have otherwise existed. Strand v. State, 
16 Wash.2d 107, 132 P.2d 1011, 1015. It is a species of 
"equitable estoppel" or estoppel by matter in pais. Ele
ments or essentials of such estoppel include change of 
position for the worse, Campbell v. Salyer, 290 Ky. 493, 
161 S.W.2d 596, 599; detriment or injury or prejudice to 
party claiming estoppel, Abbott v. Bean, 295 Mass. 268, 
3 N.E.2d 762, 768; express or implied representations; 
false representation, Chicago, R. I. & P. Ry. Co. v. 
Sawyer, 176 Okl. 446, 56 P.2d 418, 420; ignorance of 
facts by party claiming estoppel, United States v. Dic
kinson, C.C.A.Mass., 95 F.2d 65, 68; inducement to ac
tion by party claiming estoppel; intent that other party 
should act on representation or gross and culpable negli
gence of party sought to be estopped; knowledge, actual 
or constructive, of facts by person estopped, Rhoads v. 
Rhoads, 342 Mo. 934, 11 9 S.W.2d 247, 252; misleading of 
person claiming estoppel, Campbell v. Salyer, 290 Ky. 
493, 161 S.W.2d 596, 599; reliance of one party on 
conduct of other party, Mosley v. Magnolia Petroleum 
Co., 45 N.M. 230, 11 4 P.2d 740, 751. The doctrine 
ordinarily applies only to representations as to past or

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REPRESENTATION, ESTOPPEL BY 
present facts. In re Watson's Estate, 177 Misc. 308, 30 
N.Y.S.2d 577, 586. 
See also Equitable estoppel; In pais, estoppel. 
Representation of persons. A fiction of the law, the 
effect of which is to put the representative in the place, 
degree, or right of the person represented. Civ.Code La. 
art. 894. 
Representative. A person or thing that represents, or 
stands for, a number or class of persons or things, or 
that in some way corresponds to, stands for, replaces, or 
is equivalent to, another person or thing. Gaffney v. 
Unit Crane & Shovel Corp., D.C.Pa., 117 F.Supp. 490, 
491. One who represents others or another in a special 
capacity, as an agent, and term is interchangeable with 
"agent". Sunset Mill & Grain Co. v. Anderson, 39 
Ca1.2d 773, 249 P.2d 24, 27. 
A person chosen by the people to represent their 
several interests in a legislative body; e.g. representa
tive elected to serve in Congress from a state congres
sional district. 
"Representative" includes an agent, an officer of a 
corporation or association, and a trustee, executor or 
administrator of an estate, or any other person empow
ered to act for another. U.C.C. § 1-201(35). 
See also Agent; Class or representative action; Legal 
representative. 
Personal representative. Person who manages affairs of 
another because of incapacity or death. Includes execu
tor, administrator, successor, personal representative, 
special administrator, and persons who perform substan
tially the same function under the law governing their 
status. "General personal representative" excludes spe
cial administrator. Uniform Probate Code, § 1-201(30). 
Term . as used within meaning of statute providing 
that every wrongful death action shall be brought in 
name of personal representative of deceased person, is 
used simply to designate person who may prosecute the 
action. Torrez v. Sierra, App., 89 N.M. 441, 553 P.2d 
721, 724. 
See Executor; Guardian; Legal representative; Power of 
attorney. 
Representative action. An action is a "representative 
action" when it is based upon a primary or personal 
right belonging to the plaintiff stockholder and those in 
his class. Lehrman v. Godchaux Sugars, 207 Misc. 314, 
138 N.Y.S.2d 163, 166. A stockholder's action against 
corporation is "representative," when based on primary 
or personal right of plaintiff and other stockholders of 
his class, and "derivative" when based on corporation's 
primary right, asserted on its behalf by plaintiff because 
of corporation's failure to act. Gordon v. Elliman, 202 
Misc. 612, 11 5 N.Y.S.2d 567, 568, 571, 572. See also 
Class or representative action; Derivative action. 
Representative capacity. The office or other position 
an agent holds in relation to his or her principal which, 
along with the principal's name, should be indicated on 
any instrument the agent signs for the principal so that 
1302 
the agent herself avoids personal liability. See U.C.C. 
§§ 3-403(2) & (3). 
Reprieve. Temporary relief from or postponement of 
execution of criminal punishment or sentence. It does 
no more than stay the execution of a sentence for a 
time, and it is ordinarily an act of clemency extended to 
a prisoner to afford him an opportunity to procure some 
amelioration of the sentence imposed. It differs from a 
commutation which is a reduction of a sentence and 
from a pardon which is a permanent cancellation of a 
sentence; Compare Clemency. 
Reprimand /repr�mrend/. To reprove severely; to cen
sure formally, especially with authority. Federal Labor 
Union 23393, American Federation of Labor v. Ameri
can Can Co., 28 N.J.S uper. 306, 100 A.2d 693, 695. A 
public and formal censure or severe reproof, adminis
tered to a person in fault by his superior officer or by a 
body or organization to which he belongs. Thus, a 
member of a legislative body may be reprimanded by the 
presiding officer, in pursuance of a vote of censure, for 
improper conduct in the house; similarly, an attorney 
might be reprimanded by the Supreme Court or Bar 
Association of his State for unethical or improper con
duct. 
Reprisal /r�pniyz�l/. In general, any action taken by 
one person either in spite or as a retaliation for an 
assumed or real wrong by another. The forcible taking 
by one nation of a thing that belonged to another, in 
return or satisfaction for an injury committed by the 
latter on the former. 
General reprisals. Take place by virtue of commissions 
delivered to officers and citizens of the aggrieved nation, 
directing them to take the persons and property belong
ing to the offending nation wherever found. 
Negative reprisals. Take place when a nation refuses to 
fulfill a perfect obligation which it has contracted, or to 
permit another state to enjoy a right which it justly 
claims. 
Positive reprisals. Consist in seizing the persons and 
effects belonging to the other nation, in order to obtain 
satisfaction. 
Special reprisals. Such as are granted in times of peace 
to particular individuals who have suffered an injury 
from the citizens or subjects of the other nation. 
Reprobata pecunia liberat solventem /repr�beyt� 
p�kyuwn(i)y� lib�r�t solvent�m/. Money refused [the 
refusal of money tendered] releases him who pays [or 
tenders it]. 
Reprobation /repr�beysh�n/. In ecclesiastical law, the 
interposition of objections or exceptions; as to the com
petency of witnesses, to the due execution of instru
ments offered in evidence and the like. 
Republic. A commonwealth; that form of government 
in which the administration of affairs is open to all the 
citizens. In another sense, it signifies the state, inde
pendently of its form of government.

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1303 
Republican government. A government in the republi
can form; a government of the people; a government by 
representatives chosen by the people. In re Duncan, 
139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219. 
Republication. The re-execution or reestablishment by 
a testator of a will which he had once revoked. A 
second pUblication of a will, either expressly or by 
construction. A codicil duly executed is a republication 
of the will. For "Express republication," see that title. 
Repudiate. To put away, reject, disclaim, or renounce a 
right, duty, obligation, or privilege. 
Repudiation. A rejection, disclaimer, or renunciation of 
a contract before performance is due that does not 
operate as an anticipatory breach unless the promisee 
elects to treat the rejection as a breach and brings a suit 
for damages. The rejection or refusal of an offered or 
available right or privilege, or of a duty or relation. 
The act of a buyer or seller in rejecting a contract of sale 
either partially or totally. U.C.C. §§ 2-610, 2-703, 2-
708,2-711. 
Repudiation of a contract means refusal to perform 
duty or obligation owed to other party. Pitcher v. 
Lauritzen, 18 Utah 2d 368, 423 P.2d 491, 493. Such 
consists in such words or actions by contracting party as 
indicate that he is not going to perform his contract in 
the future. Continental Cas. Co. v. Boerger, Tex.Civ. 
App., 389 S.W.2d 566, 568. 
Repudiation of contract is in nature of anticipatory 
breach before performance is due, but does not operate 
as anticipatory breach unless promisee elects to treat 
repudiation as breach, and brings suit for damages. 
Such repudiation is but act or declaration in advance of 
any actual breach and consists usually of absolute and 
unequivocal declaration or act amounting to declaration 
on part of promisor to promisee that he will not make 
performance on future day at which contract calls for 
performance. Robinson v. Raquet, 1 CaI.App.2d 533, 36 
P.2d 821, 825. 
In the civil law, the casting off or putting away of a 
woman betrothed; also, but less usually, of a wife; 
divorcement. 
In ecclesiastical law, the refusal to accept a bene
fice which has been conferred upon the party repudiat
ing. 
See also Refusal; Renunciation. 
Anticipatory repudiation. See Antici patory breach of con
tract. 
Repudium /r;}pyuwd(i)y;}m /. Lat. In Roman law, a 
breaking off of the contract of espousals, or of a mar
riage intended to be solemnized. Sometimes translated 
"divorce;" but this was not the proper sense. 
Inconsistency; a condition which occurs if one part of 
a document is true (or correct), so that another part 
cannot be true (or correct). 
Repugnancy. An inconsistency, opposition, or contrar
iety between two or more clauses of the same deed, 
contract, or statute, or between two or more material 
allegations of the same pleading, or any two writings. 
REPUTED 
Within rule that repugnant counts cannot be joined in 
same declaration means affirmation of causes of action 
in one count the denial of that cause of action in 
another count. Necessary v. Gibson, 212 Tenn. 528, 370 
S.W.2d 550, 556. 
Inconsistent defenses or claims are permitted under 
Rule of Civil Proc. 8. 
Repugnant verdict. See Verdict. 
Repurchase. See Redemption. 
Reputable. Worthy of repute or distinction, held in 
esteem, honorable, praiseworthy. 
Reputable citizen. One who is well spoken of by his 
neighbors and hence presumably of good character. H. 
L. Shaffer & Co. v. Prosser, 99 Colo. 335, 62 P.2d 11 61, 
1163. 
Reputatio est vulgaris opinio ubi non est veritas. Et 
vulgaris opinio est duplex, scil.: opinio vulgaris 
orta inter graves et discretos homines, et qure vul
tum veritatis habet; et opinio tantum orta inter 
leves et vulgares homines, absque specie veritatis 
/repyuwteysh(iy)ow est v;}lger;}s ;}pin(i)yow yUwbay non 
est vehr;}trees. et v;}lger;}s ;}pin(i)yow est d(y)uwpleks, 
sibs;}t: ;}pin(i)yow v;}lger;}s ort;} int;}r greyviyz et 
d;}skriytows hom;}niyz, et kwiy v;}It;}m vehr;}teyt;}s 
heyb;}t; ed ;}pin(i)yow trent;}m ort;} int;}r liyviyz et 
v;}lgeriyz hom;}niyz rebskwiy spiyshiyiy vehr;}teyt;}s/ . 
Reputation is common opinion where there is not truth. 
And common opinion is of two kinds, to-wit: Common 
reputation arising among grave and sensible men, and 
which has the appearance of truth; and mere opinion 
arising among foolish and ignorant men, without any 
appearance of truth. 
Reputation. Estimation in which one is held; the char
acter imputed to a person by those acquainted with him. 
That by which we are known and is the total sum of how 
we are seen by others. Taylor v. State, 28 Md.App. 560, 
346 A.2d 718, 720. General opinion, good or bad, held of 
a person by those of the community in which he resides. 
Citizens Bank of Morehead v. Hunt, 287 Ky. 646, 154 
S.W.2d 730, 731. It is necessarily based upon hearsay, 
Stewart v. State, 148 Tex.Cr.R. 480, 188 S.W.2d 167, 170, 
but may be admissible if falling within the established 
exceptions to the hearsay rule. See e.g. Fed.Evid.R. 
803(19- 21). 
"Character" is made up of the things an individual 
actually is and does whereas "reputation" is what people 
think an individual is and what they say about him. 
James v. State ex reI. Loser, 24 Tenn.App. 453, 145 
S.W.2d 1026, 1033. 
See also Character; General reputation. 
Repute. By "repute" essential to effect common-law 
marriage is meant reputation or the character and sta
tus commonly ascribed to one's actions by public. Mil
ler v. Townsend Lumber Co., 152 Mont. 210, 448 P.2d 
148, 152. 
Reputed. Accepted by general, vulgar, or public opin
ion.

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REPUTED OWNER 
Reputed owner. See Owner. 
Request, v. To ask for something or for permission or 
authority to do, see, hear, etc., something; to solicit. In 
its ordinary or natural meaning when used in a will, is 
precatory and not mandatory. Byars v. Byars, 143 Tex. 
10, 182 S.W.2d 363, 364, 366. 
Request, n. An asking or petition. The expression of a 
desire to some person for something to be granted or 
done, particularly for the payment of a debt or perform
ance of a contract. Also, direction or command in law 
of wills. For Express request, see that title. 
Request for admission. Written statements of facts con
cerning the case which are submitted to an adverse 
party and which that party is required to admit or deny; 
those statements which are admitted will be treated by 
the court as having been established and need not be 
proved at trial. Fed.R.Civil P. 36. 
Request for instructions. At the close of the evidence or 
at such earlier time during the trial as the court reason
ably directs, any party may file written requests that 
the court instruct the jury on the law as set forth in the 
requests. Fed.R.Civil P. 51. 
Require. To direct, order, demand, instruct, command, 
claim, compel, request, need, exact. State ex reI. Froh
miller v. Hendrix, 59 Ariz. 184, 124 P.2d 768, 773. To be 
in need of. To ask for authoritatively or imperatively. 
State v. Community Distributors, Inc., 123 N.J.S uper. 
589, 304 A.2d 213, 217. 
Requirement contract. One in which party promises to 
supply all specific goods or services which other party 
may need during a certain period at an agreed price, 
and in which other party expressly or implicitly prom
ises he will obtain his goods or services from the first 
party exclusively. Bank of America Nat. Trust & Sav. 
Ass'n v. Smith, C.A.Cal., 336 F.2d 528, 529. While such 
contracts were at one time void for indefiniteness of 
amount, they are now universally valid. UCC 2-306(1). 
See also Exclusive dealing arrangements. 
Requisition. A demand in writing, or formal request or 
requirement. The taking or seizure of property by 
government. 
The formal demand by one government upon another, 
or by the governor of one of the United States upon the 
governor of a sister state, of the surrender of a fugitive 
criminal. See Extradition. 
Rerum ordo confunditur si unicuique jurisdictio non 
servetur /rir;}m ordow k;mf�nd;}t;}r say yuwn;}
k(yuw)aykwiy jur;}sdiksh(iy)ow non s;}rviyt;}r/. The or
der of things is confounded if every one preserve not his 
jurisdiction. 
Rerum progressus ostendunt multa, qure in initio 
prrecaveri seu prrevideri non possunt /rir;}m 
pr;)gres;)s ;)stend;)nt m�lt;), kwiy in ;)nish(iy)ow 
priybviray s(y)uw priyv;)diray non pos;)nt/. The 
progress of events shows many things which, at the 
beginning, could not be guarded against or foreseen. 
1304 
Rerum suarum quilibet est moderator et arbiter 
/rir;}m s(y)uwer;}m kwayl;}b;}d est mod;}reyt;)r et 
arb;}t;}r / . Every one is the regulator and disposer of his 
own property. 
Res /riyz/. Lat. The subject matter of a trust or will. 
In the civil law, a thing; an object. As a term of the 
law, this word has a very wide and extensive significa
tion, including not only things which are objects of 
property, but also such as are not capable of individual 
ownership. And in old English law it is said to have a 
general import, comprehending both corporeal and in
corporeal things of whatever kind, nature, or species. 
By "res," according to the modern civilians, is meant 
everything that may form an object of rights, in opposi
tion to "persona," which is regarded as a subject of 
rights. "Res," therefore, in its general meaning, com
prises actions of all kinds; while in its restricted sense it 
comprehends every object of right, except actions. This 
has reference to the fundamental division of the Insti
tutes, that all law relates either to persons, to things, or 
to actions. 
Res is everything that may form an object of rights 
and includes an object, subject-matter or status. In re 
Riggle's Will, 11 A.D.2d 51, 205 N.Y.S.2d 19,21, 22. The 
term is particularly applied to an object, SUbject-matter, 
or status, considered as the defendant in an action, or as 
the object against which, directly, proceedings are taken. 
Thus, in a prize case, the captured vessel is "the res"; 
and proceedings of this character are said to be in rem. 
(See In Personam; In Rem.) "Res" may also denote the 
action or proceeding, as when a cause, which is not 
between adversary parties, is entitled '7n re __ �" 
Classification 
Things (res) have been variously divided and classified 
in law, e.g., in the following ways: (1) Corporeal and 
incorporeal things; (2) movables and immovables; (3) res 
mancipi and res nec mancipi; (4) things real and things 
personal; (5) things in possession and choses (i.e., things) 
in action; (6) fungible things and things not fungible 
(fungibles vel non fungibiles); and (7) res singulre (i.e., 
individual objects) and universitates rerum (i.e., aggre
gates of things). Also persons are for some purposes and 
in certain respects regarded as things. 
Res accessoria /riyz reks;)sor(i)y;}/. In the civil law, an 
accessory thing; that which belongs to a principal thing, 
or is in connection with it. 
Res adiratre /riyz ,M;}reytiy/. The gist of the old action 
for res adiratre was the fact that the plaintiff had lost 
his goods, that they had come into the hands of the 
defendant, and that the defendant, on request, refused 
to give them up. 
Res adjudicata /riyz rejuwd;)keyt;}/. A less common 
spelling of res judicata. See Res judicata, below. 
Res caduca /riyz k;)d(y)uwk;)/. In the civil law, a fallen 
or escheated thing; an escheat. 
Res communes /riyz k;)myUwniyz/. In the civil law, 
things common to all; that is, those things which are

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1301) 
used and enjoyed by every one, even in single parts, but 
can never be exclusively acquired as a whole, e.g., light 
and air. 
Res controversa /riyz kontr�v;)rs�/. In the civil law, a 
matter controverted; a matter in controversy; a point 
in question; a question for determination. 
Res cororue /riyz k�r6wniy/. In old English law, things 
of the crown; such as ancient manors, homages of the 
king, liberties, etc. 
Res corporales /riyz korp;}reyliyz/. In the civil law, 
corporeal things; things which can be touched, or are 
perceptible to the senses. 
Res derelicta /riyz dehr;}lik�/. Abandoned property; 
property thrown away or forsaken by the owner, so as to 
become open to the acquisition of the first taker or 
occupant. 
Res fungibiles /riyz f;}nj ib;}liyz/" f;)nj;}bliyz/ . In the civil 
law, fungible things, things of such a nature that they 
can be replaced by equal quantities and qualities when 
returning a loan or delivering goods purchased, for 
example, so many bushels of wheat or so many dollars; 
but a particular horse or a particular jewel would not be 
of this character. 
Res gestre /riyz jestiy/. Things done. McClory v. 
Schneider, Tex.Civ.App., 51 S.W.2d 738, 741. The "res 
gestre" rule is that where a remark is made spontaneous
ly and concurrently with an affray, collision or the like, 
it carries with it inherently a degree of credibility and 
will be admissible because of its spontaneous nature. 
Carroll v. Guffey, 20 Ill.App.2d 470, 156 N.E.2d 267,270. 
"Res gestre" means literally things or things happened 
and therefore, to be admissible as exception to hearsay 
rule, words spoken, thoughts expressed, and gestures 
made, must all be so closely connected to occurrence or 
event in both time and substance as to be a part of the 
happening. McCandless v. Inland Northwest Film Ser
vice, Inc., 64 Wash.2d 523, 392 P.2d 613, 618. Those 
circumstances which are the automatic and undesigned 
incidents of a particular litigated act, which may be 
separated from act by lapse of time more or less appreci
able, and which are admissible when illustrative of such 
act. The whole of the transaction under investigation 
and every part of it. Res gestre is considered as an 
exception to the hearsay rule. In its operation it ren
ders acts and declarations which constitute a part of the 
things done and said admissible in evidence, even 
though they would otherwise come within the rule ex
cluding hearsay evidence or self-serving declarations. 
The rule is extended to include, not only declarations by 
the parties to the suit, but includes statements made by 
bystanders and strangers, under certain circumstances. 
See Fed.Evid.Rule 803(3). 
A spontaneous declaration made by a person immedi
ately after an event and before the mind has an opportu
nity to conjure a falsehood. It represents an exception 
to the hearsay rule and should be referred to as a 
spontaneous exclamation rather than res gestre. See 
also Excited ' utterance; Verbal act doctrine. 
RES 
Res gestae witness. An eyewitness to some event in the 
continuum of the criminal transaction and one whose 
testimony will aid in developing a full disclosure of the 
facts surrounding the alleged commission of the charged 
offense. People v. Baskin, 145 Mich.App. 526, 378 
N.W.2d 535, 537. 
Res habiles /riyz hreb�liyz/. In the civil law, things 
which are prescriptible; things to which a lawful title 
may be acquired by ordinary prescription. 
Res immobiles /riyz im6wb;}liyz/. In the civil law, im
movable things; including land and that which is con
nected therewith, either by nature or art, such as trees 
and buildings. 
Res incorporales /riyz inkorp;}reyliyz/. In the civil law, 
incorporeal things; things which cannot be touched; 
such as those things which consist in right. Such things 
as the mind alone can perceive. 
Res integra /riyz int;}gr;}/";}ntegr;}/. A whole thing; a 
new or unopened thing. The term is applied to those 
points of law which have not been decided, which are 
untouched by dictum or decision. 
Res inter alios acta /riyz int;}r eyl(i)yows rekt;}/. See Res 
inter alios acta. 
Res ipsa loquitur /riyz ips;} 16wkw;}t;}r/. The thing 
speaks for itself. Rebuttable presumption or inference 
that defendant was negligent, which arises upon proof 
that instrumentality causing injury was in def endant's 
exclusive control, and that the accident was one which 
ordinarily does not happen in absence of negligence. 
Res ipsa loquitur is rule of evidence whereby negligence 
of alleged wrongdoer may be inferred from mere fact 
that accident happened provided character of accident 
and circumstances attending it lead reasonably to belief 
that in absence of negligence it would not have occurred 
and that thing which caused injury is shown to have 
been under management and control of alleged wrong
doer. Hillen v. Hooker Const. Co., Tex.Civ.App., 484 
S.W.2d 11 3, 115. Under this doctrine, when a thing 
which causes injury, without fault of injured person, is 
shown to be under exclusive control of defendant, and 
injury is such as in ordinary course of things does not 
occur if the one having such control uses proper care, it 
affords reasonable evidence, in absence of an explana
tion, that injury arose from defendant's want of care. 
Lux Art Van Service, Inc. v. Pollard, C.A.Ariz., 344 F.2d 
883, 886. See also Exclusive control. 
Res Judicata /riyz juwd;}keyt;}/. A matter adjudged; a 
thing judicially acted upon or decided; a thing or matter 
settled by judgment. Rule that a final judgment ren
dered by a court of competent jurisdiction on the merits 
is conclusive as to the rights of the parties and their 
privies, and, as to them, constitutes an absolute bar to a 
subsequent action involving the same claim, demand or 
cause of action. Matchett v. Rose, 36 Ill.App.3d 638, 344 
N.E.2d 770, 779. And to be applicable, requires identity 
in thing sued for as well as identity of cause of action, of 
persons and parties to action, and of quality in persons 
for or against whom claim is made. The sum and

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RES 
substance of the whole rule is that a matter once judi
cially decided is finally decided. Allen v. McCurry, 449 
U.S. 90, 101 S.Ct. 411, 415, 66 L.Ed.2d 308. See also 
Colla teral estoppel doctrine; Final decision rule; Issue 
preclusion. 
Collateral estoppel compared. "Res judicata" bars relit
igation of the same cause of action between the same 
parties where there is a prior judgment, whereas "col
lateral estoppel" bars relitigation of a particular issue 
or determinative fact. Roper v. Mabry, 15 Wash.App. 
819, 551 P.2d 1381, 1384. 
Estoppel and res judicata distinguished, see Estoppel. 
Res litigiosce Iriyz btijiyowsay/ . In Roman law, things 
which are in litigation; property or rights which consti
tute the subject-matter of a pending action. 
Res mancipi Iriyz mrens;}pay/. See Mancipi res. 
Res mobiles Iriyz mowb;}liyz/. In the civil law, movable 
things; things which may be transported from one place 
to another, without injury to their substance and form. 
Things corresponding with the chattels personal of the 
common law. 
Res nova Iriyz nowv;}/. A new matter; a new case; a 
question not before decided. 
Res nullius Iriyz n;}lay;}s/. The property of nobody. A 
thing which has no owner, either because a former 
owner has finally abandoned it, or because it has never 
been appropriated by any person, or because (in the 
Roman law) it is not susceptible of private ownership. 
Res periit domino Iriyz pehriy;}t dom;}now/. A phrase 
used to express that, when a thing is lost or destroyed, it 
is lost to the person who was the owner of it at the time. 
Res privatce I riyz pr;}veytiy I. In the civil law, things the 
property of one or more individuals. 
Res publicce Iriyz p�bl;}siy/. Things belonging to the 
public; public property; such as the sea, navigable riv
ers, highways, etc. 
Res quotidiance Iriyz kwowtidiyeyniy/. Every-day mat
ters; familiar points or questions. 
Res religiosce I riyz r;}lijiyowsiy I. Things pertaining to 
religion. In Roman law, especially, burial-places, which 
were regarded as sacred, and could not be the subjects of 
commerce. 
Res universitatis lriyz yuwn;}v�rs;}t€�yt;}s/. In the civil 
law, things belonging to a community (as, to a munici
pality), the use and enjoyment of which, according to 
their proper purpose, is free to every member of the 
community, but which cannot be appropriated to the 
exclusive use of any individual; such as the public 
buildings, streets, etc. 
Res accendent lumina rebus Iriyz ;}ksend;}nt 
l(y)uwm;}n;} riyb;}s/. One thing throws light upon oth
ers. 
Res accessoria sequitur rem principalem Iriyz 
�ks;}s6r(i)y;} sekw;)t;)r prins;}peybm/. The accessory fol
lows the principal. 
1306 
Resale. Exists where a person who has sold goods or 
other property to a purchaser sells them again to some
one else. Sometimes a vendor reserves the right of 
reselling if the purchaser commits default in payment of 
the purchase money, and in some cases (e.g., on a sale of 
perishable articles) the vendor may do so without having 
reserved the right. U.C.C. § 2-706 provides the condi
tions under which a seller has a right of resale on 
breach by the buyer of the sales contract. 
Term may also refer to act of retailer who purchases 
goods from manufacturer or wholesaler for purpose of 
selling such goods in normal course of business. See 
also Retail; Retailer. 
Resale price maintenance. An agreement between a 
manufacturer and retailer that the latter should not 
resell below a specified minimum price. Such schemes 
operate to prevent price competition between the vari
ous dealers handling a given manufac turer's product 
with the manufacturer generally suggesting an appro
priate resale price and enforcing dealer acquiescence 
through some form of coercive sanction. Donahue v. 
Pendleton Woolen Mills, Inc., D.C.N.Y., 633 F.Supp. 
1423, 1428. Until 1976, federal statutes exempted such 
state-permitted agreements from antitrust actions. See 
also Vertical price-fixing contract. 
Resceit Ir;}siyt/. In old English practice, an admission 
or receiving a third person to plead his right in a cause 
formerly commenced between two others; as, in an 
action by tenant for life or years, he in the reversion 
might come in and pray to be received to defend the 
land, and to plead with the demandant. 
Resceit of homage Ir;}siyt ;}v (h)om;}j/. In old English 
law, the lord's receiving homage of his tenant at his 
admission to the land. 
Rescind. See Recission of contract. 
Rescissio Ir;}sish(iy)ow/. Lat. In the civil law, an an
nulling; avoiding, or making void; abrogation; re
scission. 
Rescission of contract. To abrogate, annul, avoid, or 
cancel a contract; particularly, nullifying a contract by 
the act of a party. The right of rescission is the right to 
cancel (rescind) a contract upon the occurrence of cer
tain kinds of default by the other contracting party. To 
declare a contract void in its inception and to put an end 
to it as though it never were. Russell v. Stephens, 191 
Wash. 314, 71 P.2d 30, 31. A "rescission" amounts to 
the unmaking of a contract, or an undoing of it from the 
beginning, and not merely a termination, and it may be 
effected by mutual agreement of parties, or by one of the 
parties declaring rescission of contract without consent 
of other if a legally sufficient ground therefor exists, or 
by applying to courts for a decree of rescission. Abdal
lah, Inc. v. Martin, 242 Minn. 416, 65 N.W.2d 641, 644. 
It necessarily involves a repudiation of the contract and 
a refusal of the moving party to be further bound by it. 
Nonetheless, not every default in a contract will give 
rise to a right of rescission. See also Cancellation; Re
nunciation; Repudiation; Revocation; Termination.

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1307 
An action of an equitable nature in which a party 
seeks to be relieved of his obligations under a contract 
on the grounds of mutual mistake, fraud, impossibility, 
etc. 
Rescissory damages. See Damages. 
Rescous Ireskyuw I. Rescue. The taking back by force 
goods which had been taken under a distress, or the 
violently taking away a man who is under arrest, and 
setting him at liberty, or otherwise procuring his escape, 
are both so denominated. This was also the name of a 
writ which lay in cases of rescue. 
Rescript Iriyskript/. A written order from the court to 
the clerk, giving directions concerning the further dispo
sition of a case. The written statement by an appellate 
court of its decision in a case, with the reasons therefor, 
sent down to the trial court. A short appellate opinion 
which does not bear the name of any justice. 
At common law, a counterpart, duplicate, or copy. 
In the civil law, a species of imperial constitutions, 
being the answers of the prince in individual cases, 
chiefly given in response to inquiries by parties in rela
tion to litigated suits, or to inquiries by the judges, and 
which became rules for future litigated or doubtful legal 
questions. 
In canon law, a term including any form of apostolical 
letter emanating from the Pope. The answer of the 
Pope in writing. 
Rescriptum Ir::lskript::lm/. Lat. In the civil law, a spe
cies of imperial constitution, in the form of an answer to 
some application or petition; a rescript. 
Rescue. Act of saving or freeing. At common law, 
forcibly and knowingly freeing another from arrest, 
imprisonment or legal custody without any effort by 
prisoner to free himself. Merrill v. State, 42 Ariz. 341, 
26 P.2d 110. The unlawfully or forcibly taking back 
goods which have been taken under a distress for rent, 
damage feasant, etc. See also Repossession. 
In admiralty and maritime law, the deliverance of 
property taken as prize, out of the hands of the captors, 
either when the captured party retake it by their own 
efforts, or when, pending the pursuit or struggle, the 
party about to be overpowered receive reinforcements, 
and so escape capture. 
Rescue doctrine. Under this doctrine, one who has, 
through his negligence, endangered safety of another 
may be held liable for injuries sustained by third person 
who attempts to save other from injury. National Dairy 
Products Corp. v. Freschi, Mo.App., 393 S.W.2d 48, 57. 
Danger invites rescue. 
"Rescue", "humanitarian" or "good samaritan" doc
trine is that one who sees a person in imminent and 
serious peril through negligence of another cannot be 
charged with contributory negligence, as a matter of 
law, in risking his own life or serious injury in attempt
ing to effect a rescue, provided the attempt is not reck
lessly or rashly made. Jobst v. Butler Well Servicing, 
Inc., 190 Kan. 86, 372 P.2d 55, 59. See also Humanitarian 
doctrine. 
RESERVE 
Rescyt Ir::lsiyt/. L. Fr. Resceit; receipt; the receiving 
or harboring a felon, after the commission of a crime. 
Res denominatur a principali parte Iriyz 
d::lnom::lneyt::lr ey prins::lpeylay partiy I. The thing is 
named from its principal part. 
Resealing writ. In English law, the second sealing of a 
writ by a master so as to continue it, or to cure it of an 
irregularity. 
Reservation. A clause in a deed or other instrument of 
conveyance by which the grantor creates, and reserves 
to himself, some right, interest, or profit in the estate 
granted, which had no previous existence as such, but is 
first called into being by the instrument reserving it; 
such as rent, or an easement. Reservation occurs where 
granting clause of the deed operates to exclude a portion 
of that which would otherwise pass to the grantee by the 
description in the deed and "reserves" that portion unto 
the grantor. Board of County Com'rs of Weld County v. 
Anderson, 34 Colo.App. 37, 525 P.2d 478, 482. 
A right created and retained by a grantor. The reser
vation may be temporary (such as a life estate) or 
permanent (such as an easement running with the land). 
The reservation of a point of law is the act of the trial 
court in setting it aside for future consideration, allow
ing the trial to proceed meanwhile as if the question had 
been settled one way, but subject to alteration of the 
judgment in case the court in banc should decide it 
differently. 
For exception and reservation distinguished, see and 
compare Exception. 
A reservation is a tract of land, more or less consider
able in extent, which is by public authority withdrawn 
from sale or settlement, and appropriated to specific 
public uses; such as parks, military posts, Indian lands, 
etc. A tract of land (under control of the Bureau of 
Indian Affairs) to which an American Indian tribe re
tains its original title to ownership or which has been 
set aside for its use out of the public domain. 
Reservation of claim. A draft or demand presented 
under a letter of credit is non-complying if there is an 
explicit reservation of claim. U.C.C. § 5-110. 
Reservatio non debet esse de proficuis ipsis, quia ea 
conceduntur, sed de reditu novo extra proficua 
Irez::lrveysh(iy)ow non deb::lt esiy diy pr::lfikyuw::ls ips::ls, 
kwaY::l iY::l kons::ld;}nt::lr sed diy red::lt(y)uw nowvow ekstr::l 
pr::lfikyuw::l/. A reservation ought not to be of the 
profits themselves, because they are granted, but from 
the new rent, apart from the profits. 
Reserve, v. To keep back, to retain, to keep in store for 
future or special use, and to retain or hold over to a 
future time. Commissioner of Internal Revenue v. 
Strong Mfg. Co., C.C.A.6, 124 F.2d 360, 363. To set aside 
funds, usually for indefinite contingencies, such as fu
ture maintenance of a structure, or to pay future claims. 
Reserve, n. Funds set aside to cover future expenses, 
losses, claims, or liabilities. Sums of money an insurer 
is required to set aside as a fund for the liquidation of 
future unaccrued and contingent claims, and claims

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RESERVE 
accrued, but contingent and indefinite as to amount. 
Arrow Trucking Co. v. Continental Ins. Co., La., 465 
So.2d 691, 696. Reserves of insurance company are the 
amount treated as liability on the balance sheet which 
the company estimates will be sufficient to meet its 
policy obligations. United Life & Acc. Ins. Co. v. U.S., 
D.C.N.H., 329 F.Supp. 765, 768. 
"With reserve" in an auction means that the thing 
will not be sold if the highest bid is not high enough. To 
"reserve title" is to keep an ownership right as security 
that the thing will be fully paid for. 
Bad debt reserve. In accounting, a reserve set aside for 
losses on uncollectible accounts and notes receivable. 
An account for bad debts is offset by a reserve for bad 
debts. When accounts become uncollectible they are 
written off against the reserve. For tax years beginning 
after 1986, the Internal Revenue Service repealed the 
use of the bad debt reserve method for tax purposes, 
requiring most taxpayers to use the specific charge-off 
method for receivables which become uncollectible after 
1986. 
Contingency reserve (or fund). See that title. 
Depletion reserve. An account used in connection with 
diminishing assets such as mines, timber, etc. to reflect 
the depletion of the asset. 
Depreciation reserve. An account used to recover the 
cost of an asset by writing off a portion of the cost over 
the life of the asset or by some other acceptable method. 
The depreciation reserve is listed on the balance sheet 
as a reduction in the cost of the related asset. 
Legal reserve. A reserve account required by law for 
insurance companies and banks as protection against 
losses. 
Replacement reserve. An account set up for the actual 
replacement of machinery and equipment. 
Required reserves. The minimum amount of reserves 
that must be held by banks as required by the Federal 
Reserve Board. The Board requires banks and other 
financial institutions that accept deposits to hold speci
fied minimum reserves in the form of vault cash or 
deposits with the nearest Federal Reserve District Bank. 
Sinking fund reserve. An account set up for the re
demption of long term debt. It is commonly required by 
a bond indenture. 
Reserve banks. Member banks of Federal Reserve Sys
tem. 
Reserve Board. See Federal Reserve Board of Gover
nors. 
Reserve clause. A clause included in contracts of pro
fessional athletes whereby the athlete's service is re
served for the team holding his contract. It represents 
a hold on the player by the team which has contracted 
with him, and such team has the exclusive right to trade 
the player to another team without his consent. Such 
reserve clauses in professional baseball contracts have 
long since been held to be exempt from federal antitrust 
laws. Toolson v. New York Yankees, Inc., 346 U.S. 356, 
1308 
74 S.Ct. 78, 98 L.Ed. 64; Flood v. Kuhn, 407 U.S. 258, 92 
S.Ct. 2099, 32 L.Ed.2d 728. 
Reserved. Retained, kept or set apart, for a purpose or 
a person. 
Reserved land. Public land that has been withheld or 
kept back from sale or disposition. See Reservation. 
Reserved power. A power specifically withheld because 
not mentioned or reasonably implied in other powers 
conferred by a constitution or statute. See also Power 
(Constitutional powers). 
Reserve fund. See Reserve. 
Reserve ratio. In banking, the primary reserve ratio is 
the ratio of the balance of Federal Reserve balance of 
the bank plus cash in vault to the demand deposits of 
the bank. The secondary ratio is the ratio between the 
government securities of the bank and its demand depos
its. There is also a ratio between time deposits and 
Federal Reserve balances plus cash in vault. 
Res est misera ubi jus est vagum et incertum /riyz est 
miz�r� yuwbay j�s est veyg�m et �ns�rt�m/. It is a 
wretched state of things when law is vague and mutable. 
Reset. In old English law, the receiving or harboring an 
outlawed person. 
Resettlement. The reopening of an order or decree for 
the purpose of including therein some recital or provi
sion which should have been included and was initially 
omitted through inadvertence. In re Bartlett's Will, 164 
Misc. 524, 299 N.Y.S. 316, 317. 
Res generalem habet significationem quia tam cor
porea quam incorporea cujuscunque sunt generis, 
naturre, sive speciei, comprehendit /riyz jen�reyl�m 
heyb�t sign�f�keyshiy6wn�m kway� teem korp6riy� 
kwrem inkorp6riy� k(y)uwj�sk�IJkwiy s�nt jen�r�s, 
n�tyuriy sayviy spiyshiyay, kompr�hend�tI. The word 
"thing" has a general signification, because it compre
hends corporeal and incorporeal objects, of whatever 
nature, sort, or species. 
Res gestre. See Res. 
Resiance /reziy�ns/. Residence, abode, or continuance. 
Resiant /reziy�nt/. In old English law, continually 
dwelling or abiding in a place; resident; a resident. 
Reside. Live, dwell, abide, sojourn, stay, remain, lodge. 
Western-Knapp Engineering Co. v. Gilbank, C.C.A.Cal., 
129 F.2d 135, 136. To settle oneself or a thing in a 
place, to be stationed, to remain or stay, to dwell perma
nently or continuously, to have a settled abode for a 
time, to have one's residence or domicile; specifically, to 
be in residence, to have an abiding place, to be present 
as an element, to inhere as a quality, to be vested as a 
right. State ex rel. Bowden v. Jensen, Mo., 359 S.W.2d 
343, 349. A foreign business corporation, for venue 
purposes, "resides" in county where its registered office 
and registered agent is located. State ex rel. Bowden v. 
Jensen, Mo., 359 S.W.2d 343, 351. 
Residence. Place where one actually lives or has his 
home; a person's dwelling place or place of habitation;

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1309 
an abode; house where one's home is; a dwelling house. 
Perez v. Health and Social Services, 91 N.M. 334, 573 
P.2d 689, 692. Personal presence at some place of abode 
with no present intention of definite and early removal 
and with purpose to remain for undetermined period, 
not infrequently, but not necessarily combined with 
design to stay permanently. T.P. Laboratories, Inc. v. 
Huge, D.C.Md., 197 F.Supp. 860, 865. 
Residence implies something more than mere physical 
presence and something less than domicile. Petition of 
Castrinakis, D.C.Md., 179 F.Supp. 444, 445. The terms 
"r esident" and "residence" have no precise legal mean
ing; sometimes they mean domicile plus physical pres
ence; sometimes they mean domicile; and sometimes 
they mean something less than domicile. Willenbrock 
v. Rogers, C.A.Pa., 255 F.2d 236, 237. See also Abode; 
Domicile; Legal residence; Principal residence. 
"Domicile" compared and distinguished. As "domicile" 
and "residence" are usually in the same place, they are 
frequently used as if they had the same meaning, but 
they are not identical terms, for a person may have two 
places of residence, as in the city and country, but only 
one domicile. Residence means living in a partiCUlar 
locality, but domicile means living in that locality with 
intent to make it a fixed and permanent home. Resi
dence simply requires bodily presence as an inhabitant 
in a given place, while domicile requires bodily presence 
in that place and also an intention to make it one's 
domicile. Fuller v. Hofferbert, C.A.Ohio, 204 F.2d 592, 
597. "Residence" is not synonymous with "domicile," 
though the two terms are closely related; a person may 
have only one legal domicile at one time, but he may 
have more than one residence. Fielding v. Casualty 
Reciprocal Exchange, La.App., 331 So.2d 186, 188. 
In certain contexts the courts consider "residence" 
and "domicile" to be synonymous (e.g. divorce action, 
Cooper v. Cooper, 269 Cal.App.2d 6, 74 Cal.Rptr. 439, 
441); while in others the two terms are distinguished 
(e.g. venue, Fromkin v. Loehmann's Hewlett, Inc., 16 
Misc.2d 11 7, 184 N.Y.S.2d 63, 65). 
Immigration law. The place of general abode; the place 
of general abode of a person means his or her principal, 
actual dwelling place in fact, without regard to intent. 
8 V.S.C.A. § 1101. 
Legal residence. See that title. 
Residency requirements. Broad term to describe terms 
of residence required by states for such things as welfare 
benefits, admission to the bar, divorce, etc. As regards 
divorce and welfare prerequisites, the requirements 
must not be so stringent as to violate due process or 
equal protection. See Right to travel. 
Resident. Any person who occupies a dwelling within 
the State, has a present intent to remain within the 
State for a period of time, and manifests the genuine
ness of that intent by establishing an ongoing physical 
presence within the State together with indicia that his 
presence within the State is something other than mere
ly transitory in nature. The word "resident" when used 
as a noun, means a dweller, habitant or occupant; one 
RESIDUARY ESTATE 
who resides or dwells in a place for a period of more, or 
less, duration; it signifies one having a residence, or one 
who resides or abides. Hanson v. P. A. Peterson Home 
Ass'n, 35 Ill.App.2d 134, 182 N.E.2d 237, 240. Word 
"resident" has many meanings in law, largely deter
mined by statutory context in which it is used. KeIrn v. 
Carlson, C.A.Ohio, 473 F.2d 1267, 1271. See also Resi
dence. 
Resident agent. Person in a jurisdiction authorized to 
accept service of process for another, especially a corpo
ration. 
Resident alien. One, not yet a citizen of this country, 
who has come into the country from another with the 
intent to abandon his former citizenship and to reside 
here. 
Resident freeholder. A person who resides in the par
ticular place (town, city, county, etc.) and who owns an 
estate in lands therein amounting at least to a freehold 
interest. Brodie v. City of Missoula, 155 Mont. 185, 468 
P.2d 778, 782. 
Residential cluster. An area to be developed as a single 
entity according to a plan containing residential housing 
units which have a common or public open space area as 
an appurtenance. See also Planned unit development. 
Residential density. The number of dwelling units per 
gross acre of residential land area including streets, 
easements and open space portions of a development. 
Residual Ir;}zidyuw;}l/r;}zij(uw);}l/. Relating to the resi
due; relating to the part remaining; that which is left 
over. Term may also refer to deferred commissions. 
Residual value. Value of depreciable asset after depre
ciation charges have been deducted from original cost. 
See also Salvage (salvage value). 
Residuary Ir;}zidyuw;}riy/. Pertaining to the residue; 
constituting the residue; giving or bequeathing the resi
due; receiving or entitled to the residue. See Residue. 
Residuary account. In English practice, the account 
which every executor and administrator, after paying 
the debts and particular legacies of the deceased, and 
before paying over the residuum, must pass before the 
board of inland revenue. 
Residuary bequest. A bequest of all of testator's estate 
not otherwise effectually disposed of. 
Residuary clause. Clause in will by which that part of 
property is disposed of which remains after satisfying 
bequests and devises. Any part of the will which dispos
es of property not expressly disposed of by other provi
sions of the will. Jackson v. Jackson, 217 Kan. 448, 536 
P.2d 1400, 1406. See also Residuary estate. 
Residuary devise and devisee. See Devise. 
Residuary estate. That which remains after debts and 
expenses of administration, legacies, and devises have 
been satisfied. That portion of person's estate which 
has not otherwise been particularly devised or be
queathed. It consists of all that has not been legally 
disposed of by will, other than by residuary clause.

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RESIDUARY ESTATE 
Gross estate less all charges, debts, costs, and all other 
legacies. In re Miller's Estate, Fla.App., 301 So.2d 137, 
139. See also Residuary clause. 
Residuary gift. See Legacy. 
Residuary legacy. See Legacy. 
Residuary legatee. See Legatee. 
Residue. The surplus of a testator's estate remaining 
after all the debts, taxes, costs of administration, and 
particular legacies have been discharged. See also Re
siduary estate. 
Residuum /r�zidyuw�m/. That which remains after any 
process of separation or deduction; a residue or balance. 
That which remains of a decedent's estate, after debts 
have been paid and legacies deducted. See also Residu
ary estate. 
Residuum rule. While a decision of an administrative 
board may be based partly on hearsay evidence intro
duced at the hearing, it will be upheld on judicial review 
only if there is a residuum of competent evidence on 
which it is founded. The residuum rule has generally 
been rejected by the federal courts. See Richardson v. 
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842. 
Resignatio est juris proprii spontanea refutatio 
/rez�gneysh(iy)ow est Jur�s prowpriyay spontey
n(i)y� refyuwteysh(iy)ow/. Resignation is a spontaneous 
relinquishment of one's own right. 
Resignation. Formal renouncement or relinquishment 
of an office. It must be made with intention of relin
quishing the office accompanied by act of relinquish
ment. 
Resilire /rez�layriy/. Lat. In old English law, to draw 
back from a contract before it is made binding. 
Res inter alios acta /riyz int�r eyliyows rekt�/. The 
rule "res inter alios acta" forbids the introduction of 
collateral facts which by their nature are incapable of 
affording any reasonable presumption or inference as to 
the principal matter in dispute, and thus evidence as to 
acts, transactions or occurrences to which accused is not 
a party or is not connected is inadmissible. State v. 
McCarty, Iowa, 179 N.W.2d 548, 550. 
In law of evidence, a thing or event which occurs at a 
time different from the time in issue is generally not 
admissible to prove what occurred at the time in issue. 
Also events which involve those not parties to an action 
are generally not admissible because they are immateri
al and commonly not relevant. 
Res inter alios acta alteri nocere non debet /riyz int�r 
eyl(i)yows rekt� olt�ray n�siriy non deb�tI. Things done 
between strangers ought not to injure those who are not 
parties to them. 
Res inter alios judicatre nullum allis prrejudicium 
faciunt /riyz int�r eyl(i)yows juwd�keytiy n;}l�m eyliy�s 
prejuwdish(iy)�m freshiy�ntl. Matters adjudged in a 
cause do not prejudice those who were not parties to it. 
Res ipsa loquitur. See Res. 
1310 
Resist. To oppose. This word properly describes an 
opposition by direct action and quasi forcible means. 
Resistance. The act of resisting opposition. The em
ployment of forcible means to prevent the execution of 
an endeavor in which force is employed; standing 
against; obstructing. Withstanding the force or effect 
of or the exertion of oneself to counteract or defeat. 
Landry v. Daley, D.C.Ill., 280 F.Supp. 938, 959. See Self
defense. 
Resisting an officer. In criminal law, the offense of 
obstructing, opposing, and endeavoring to prevent (with 
or without actual force) a peace officer in the execution 
of a writ or in the lawful discharge of his duty while 
making an arrest or otherwise enforcing the peace. See 
e.g. 18 U.S.C.A. § 111. See also Resisting arrest. 
Resisting arrest. The crime of obstructing or opposing 
a police officer making an arrest. See, e.g., Model Penal 
Code, § 242.2; N.J .s.A. 2C:29-2. 
Res judicata. See Res. 
Res judicata facit ex albo nigrum; ex nigro, album; 
ex curvo, rectum; ex recto, curvum /riyz juwd�keyt� 
feys�t eks relbow naygr�m, eks naygrow relb�m, eks 
k;}rvow rekt�m, eks rektow k;}rv�m/. A thing adjudged 
[the solemn judgment of a court] makes white, black; 
black, white; the crooked, straight; the straight, 
crooked. 
Res judicata pro veritate accipitur /riyz juwd�keyt� 
prow vehr�teytiy �ksip�t�r/. A matter adjudged is tak
en for truth. A matter decided or passed upon by a 
court of competent jurisdiction is received as evidence of 
truth. 
Res nullius naturaliter fit primi occupantis /riyz 
n�lay�s mHy�reyl�t�r fit praymay oky�prent�s/. A thing 
which has no owner naturally belongs to the first finder. 
Resolution. A formal expression of the opinion or will 
of an official body or a public assembly, adopted by vote; 
as a legislative resolution. Such may be either a simple, 
joint or concurrent resolution. 
The term is usually employed to denote the adoption 
of a motion, the subject-matter of which would not 
properly constitute a statute, such as a mere expression 
of opinion; an alteration of the rules; a vote of thanks 
or of censure, etc. Such is not law but merely a form in 
which a legislative body expresses an opinion. Baker v. 
City of Milwaukee, 271 Or. 500, 533 P.2d 772, 775. 
The chief distinction between a "resolution" and a 
"law" is that the former is used whenever the legislative 
body passing it wishes merely to express an opinion as 
to some given matter or thing and is only to have a 
temporary effect on such particular thing, while by a 
"law" it is intended to permanently direct and control 
matters applying to persons or things in general. 
Concurrent resolution. An action of Congress passed in 
the form of a resolution of one house, the other concur
ring, which expresses the sense of Congress on a particu
lar subject.

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1311 
Corporate resolution. Formal documentation of action 
taken by board of directors of corporation (e.g. declara
tion of stock dividend). 
Joint resolution. A resolution adopted by both houses of 
congress or a legislature. When such a resolution has 
been approved by the president or passed with his ap
proval, it has the effect of a law. 
The distinction between a joint resolution and a con
current resolution of congress, is that the former re
quires the approval of the president while the latter 
does not. 
Ordinance distinguished. "Resolution" denotes some
thing less formal than "ordinance"; generally, it is mere 
expression of opinion or mind of council concerning 
some matter of administration, within its official cogni
zance, and provides for disposition of particular item of 
administrative business of a municipality; it is not a 
law, and in substance there is no difference between 
resolution, order and motion. City of Salisbury v. Na
gel, Mo.App., 420 S.W.2d 37, 43. 
Resolution Trust Corporation. A federal agency 
which succeeds the former Federal Savings and Loan 
Insurance Corporation (FSLIC) as conservator or receiv
er of federal savings and loan associations which became 
insolvent while insured by the FSLIC. One of agency's 
functions is to dispose of assets of insolvent S & L's. 
With the abolition of the FSLIC in 1989, such associa
tions are now insured by the FDIC. See also Federal 
Deposit Ins urance Corporation. 
Resoluto jure concedentis resolvitur jus concessum 
/rez�l(y)uwtow juriy kans�dent�s r�zolv�t�r j�s 
k�nses�m/. The right of the grantor being extinguished, 
the right granted is extinguished. 
Resolutory condition /r�zoly�t(�)riy k�ndish�n/. See 
Condition. 
Resort, v. To frequent; to go, especially to go frequent
ly, customarily, or usually. To have recourse; to look to 
for relief or help. 
Resort, n. Recourse; a person or thing that is looked to 
for help. A place of frequent assembly; a haunt. U. S. 
ex reI. Dobra v. Lindsey, D.C.Tex., 51 F.2d 141, 142. 
Court of last resort. A court whose decision is final and 
without further appeal in reference to the particular 
case; e.g. Supreme Court of the United States. 
Resources. Money or any property that can be convert
ed to meet needs; means of raising money or supplies; 
capabilities of raising wealth or to supply necessary 
wants; available means or capability of any kind. Cer
enzia v. Department of Social Security of Washington, 
18 Wash.2d 230, 138 P.2d 868, 871. See also Natural 
resources. 
RESP A (Real Estate Settlement Procedures Act). A 
federal statute governing disclosure of settlement costs 
in the sale of residential (one to four family) improved 
property which is to be financed by a federally insured 
lender. 12 U.S.C.A. § 2601 et seq. See also Closing. 
'RESPONDEAT SUPERIOR 
Respective. Relating to particular persons or things, 
each to each; particular; several; as, their respective 
homes. 
Respectu computi vicecomitis habendo /r�spekt(y)uw 
kompy�tay vaysiyk6m�t�s h�bendow /. A writ for respit
ing a sheriffs account addressed to the treasurer and 
barons of the exchequer. 
Res per pecuniam restimatur, et non pecunia per rem 
/riyz p�r p�kyUwn(i)y�m est�meyt�r et non p�kyuwn(i)y� 
p�r rem/. The value of a thing is estimated according to 
its worth in money, but the value of money is not 
estimated by reference to a thing. 
Respiciendum est judicanti ne quid aut durius aut 
remissius constituatur quam causa deposcit; nec 
enim aut severitatis aut clementire gloria affectanda 
est /r�spishiyend�m est juwd�krentay niy kwid at 
dyUriy�s at r�mis(i)y�s k�n(t)stit(y)uweyt�r kwrem k6z� 
d�pos�t, nek iyn�m at s�vehr�teyt�s at kbmenshiyiy 
gl6riy� cHektrend� est/. The judge must see that no 
order be made or judgment given or sentence passed 
either more harshly or more mildly than the case re
quires; he must not seek renown, either as a severe or 
as a tender-hearted judge. 
Respite /resp�t/r�spayt/. The temporary suspension of 
the execution of a sentence; a reprieve; a delay, forbear
ance, or continuation of time. 
In the civil law, an act by which a debtor, who is 
unable to satisfy his debts at the moment, transacts 
(compromises) with his creditors, and obtains from them 
time or delay for the payment of the sums which he 
owes to them. The respite is either voluntary or forced. 
It is voluntary when all the creditors consent to the 
proposal, which the debtor makes, to pay in a limited 
time the whole or a part of the debt. It is forced when a 
part of the creditors refuse to accept the debtor's propos
al, and when the latter is obliged to compel them by 
judicial authority to consent to what the others have 
determined, in the cases directed by law. 
Respite of appeal. Adjourning an appeal to some fu
ture time. 
Respite of homage. To dispense with the performance 
of homage by tenants who held their lands in considera
tion of performing homage to their lords. 
Respondeat ouster /r�spondiy�t awst�r/. Upon an is
sue in law arising upon a dilatory plea, the form of 
judgment for the plaintiff is that the defendant answer 
over, which is thence called a judgment of "respondeat 
ouster." This not being a final judgment, the pleading is 
resumed, and the action proceeds. 
Respondeat raptor, qui ignorare non potuit quod 
pupillum alienum abduxit /r�spondiy�t rrept�r kway 
ign�reriy nan p6tuw�t kwad p(y)�pibm reliyiyn�m 
rebd�ks�t/. Let the ravisher answer, for he cannot be 
ignorant that he has taken away another's ward. 
Respondeat superior /r�sp6ndiy�t s(y)�piriy�r/. Let 
the master answer. This doctrine or maxim means that 
a master is liable in certain cases for the wrongful acts

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RESPONDEAT SUPERIOR 
of his servant, and a principal for those of his agent. 
Burger Chef Systems, Inc. v. Govro, C.A.Mo., 407 F.2d 
921, 925. Under this doctrine master is responsible for 
want of care on servant's part toward those to whom 
master owes duty to use care, provided failure of servant 
to use such care occurred in course of his employment. 
Shell Petroleum Corporation v. Magnolia Pipe Line Co., 
Tex.Civ.App., 85 S.W.2d 829, 832. Under doctrine an 
employer is liable for injury to person or property of 
another proximately resulting from acts of employee 
done within scope of his employment in the employer's 
service. Mid-Continent Pipeline Co. v. Crauthers, Okl., 
267 P.2d 568, 571. Doctrine applies only when relation 
of master and servant existed between defendant and 
wrongdoer at time of injury sued for, in respect to very 
transaction from which it arose. Hence, doctrine is 
inapplicable where injury occurs while employee is act
ing outside legitimate scope of authority. Rogers v. 
Town of Black Mountain, 224 N.C. 119, 29 S.E.2d 203, 
205. But if deviation be only slight or incidental, em
ployer may still be liable. Klotsch v. P. F. Collier & Son 
Corporation, 349 Mo. 40, 159 S.W.2d 589, 593, 595. See 
Scope of employment; Vicarious liability. 
Respondent Ir;}spond;mt/. In equity practice, the party 
who makes an answer to a bill or other proceeding in 
equity. In appellate practice, the party who contends 
against an appeal; the party against whom the appeal is 
taken, i.e. the appellee. 
In the civil law, one who answers or is security for 
another; a fidejussor. 
Respondentia Irespondensh(iy);}/. The hypothecation of 
the cargo or goods on board a ship as security for the 
repayment of a loan, the term "bottomry" being con
fined to hypothecations of the ship herself; but now the 
term "respondentia" is seldom used, and the expression 
"bottomry" is generally employed, whether the vessel or 
her cargo or both be the security. 
A contract by which a cargo, or some part thereof, is 
hypothecated as security for a loan, the repayment of 
which is dependent on maritime risks. 
Respondera son soveraigne Ir;}(s)pond;}r;} son sov(;})r
;}n/"sov;}ren/. His superior or master shall answer. 
Respondere non debet Ir;}spond;}riy non deb;}t/. Lat. 
In common law pleading, the prayer of a plea where the 
defendant insists that he ought not to answer, as when 
he claims a privilege; for example, as being a member of 
congress or a foreign ambassador. 
Responsalis I responseyl;}s I . In old English law, one 
who appeared for another. 
In ecclesiastical law, a proctor. 
Responsalis ad lucrandum vel petendum 
Iresponseyl;}s red l(y)uwkrrend;}m vel p;}tend;}m/. He 
who appears and answers for another in court at a day 
assigned; a proctor, attorney, or deputy. 
Responsa prudentium Ir;}spons;} pruwdensh(iy)�m/. 
Lat. Answers of jurists; responses given upon cases or 
questions of law referred to them, by certain learned 
Roman jurists, who, though not magistrates, were autho-
1312 
rized to render such opinions. These responsa constitut
ed one of the most important sources of the earlier 
Roman law, and were of great value in developing its 
scientific accuracy. They held much the same place of 
authority as our modern precedents and reports. 
Responsibility. The state of being answerable for an 
obligation, and includes judgment, skill, ability and ca
pacity. McFarland v. George, Mo.App., 316 S.W.2d 662, 
671. The obligation to answer for an act done, and to 
repair or otherwise make restitution for any injury it 
may have caused. See also Liability; Responsible. 
Responsibility of eviction. In a lease the burden of 
expelling by legal process those in possession, if they 
wrongfully withhold it. 
Responsible. Liable; legally accountable or answerable. 
Able to pay a sum for which he is or may become liable, 
or to discharge an obligation which he may be under. 
Responsible bidder. One who is capable financially 
and competent to complete the job for which he is 
bidding. A responsible bidder is one who is not only 
financially responsible, but who is possessed of a judg
ment, skill, ability, capacity and integrity requisite and 
necessary to perform a public contract according to its 
terms. Federal Elec. Corp. v. Fasi, 56 Haw. 57, 527 P.2d 
1284, 1291. 
Responsible cause. So as to relieve defendant from 
liability for injuries, a cause which is the culpable act of 
a human being who is legally responsible for such act. 
See Proximate cause. 
Responsible government. This term generally desig
nates that species of governmental system in which the 
responsibility for public measures or acts of state rests 
upon the ministry or executive council, who are under 
an obligation to resign when disapprobation of their 
course is expressed by a vote of want of confidence, in 
the legislative assembly, or by the defeat of an impor
tant measure advocated by them. 
Responsio unius non omnino audiatur 
Ir;}sponsh(iy)ow yuwnay;}s non omnaynow odiyeyt;}r/. 
The answer of one witness shall not be heard at all. A 
maxim of the Roman law of evidence. 
Responsive. Answering; constituting or comprising a 
complete answer. A "responsive allegation" is one 
which directly answers the allegation it is intended to 
meet. 
Responsive pleading. A pleading which joins issue and 
replies to a prior pleading of an opponent in contrast to 
a dilatory plea or motion which seeks to dismiss on some 
ground other than the merits of the action. Though 
general denials arenot commonly accepted today, an 
answer in which specific denials are setforth and an 
answer by way of confession and avoidance are examples 
of responsive pleadings. See Answer. 
Res propria est qUa! communis non est Iriyz prowpriy;} 
est kwiy k;}myuwn;}s non est!. A thing is private which 
is not common.

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1313 
Res qure intra prresidia perductre nondum sunt, quan
quam ab hostibus occupatre, ideo postliminii non 
egent, quia dominium nondum mutarunt ex genti
um jure Iriyz kwiy intr� pr�sidiy� p�rd�ktiy n6nd�m 
s�nt, kwreIJkw�m reb (h)6st�b�s oky�peytiy, idiyow 
powstlim�nay non iyj�nt kway� d�miniy�m n6nd�m 
myuwter�nt eks jensh(iy)�m juriy/. Things which have 
not yet been introduced within the enemy's lines, al
though held by the enemy, do not need the fiction of 
postliminy on this account, because their ownership by 
the law of nations has not yet changed. 
Res sacra non recipit restimationem Iriyz srekr� non 
res�p�t est�meyshiy6wn�m/. A sacred thing does not 
admit of valuation. 
Resseiser Ir�siyz�r/. The taking oflands into the hands 
of the crown, where a general livery or ouster Ie main 
was formerly misused. 
Res sua nemini servit Iriyz s(y)uw� nem�nay s�rv�t/. 
No one can have a servitude over his own property. 
Rest, v. In the trial of an action, a party is said to 
"rest," or "rest his case," when he advises the court or 
intimates that he has produced all the evidence he 
intends to offer at that stage, and submits the case, 
either finally, or subject to his right to afterwards offer 
rebutting evidence. 
Rest, n. Repose; cessation or intermission of motion, 
exertion or labor; freedom from activity; quiet. Corru
gating Machinery Corporation v. Progressive Corrugated 
Paper Machinery Co., D.C.N.Y., 47 F.2d 273, 275. See 
also Residue. 
Restatement of Law. A series of volumes authored by 
the American Law Institute that tell what the law in a 
general area is, how it is changing, and what direction 
the authors (who are leading legal scholars in each field 
covered) think this change should take; for example, 
Restatement of the Law of Contracts; Restatement of 
the Law of Torts. The various Restatements have been 
a formidable force in shaping the disciplines of the law 
covered; they are frequently cited by courts and either 
followed or distinguished; they represent the fruit of the 
labor of the best legal minds in the diverse fields of law 
covered. 
Restaur, or restor Ir�st6r/. In old English law, the 
remedy or recourse which marine underwriters have 
against each other, according to the date of their assur
ances, or against the master, if the loss arise through his 
default, as through ill loading, want of caulking, or want 
of having the vessel tight; also the remedy or recourse a 
person has against his guarantor or other person who is 
to indemnify him from any damage sustained. 
Resting a case. See Rest. 
Restitutio in integrum /rest�t(y)uwsh(iy)ow in 
int�gr�mrintegr�m/. Lat. In the civil law, restoration 
or restitution to the previous condition. This was effect
ed by the prretor on equitable grounds, at the prayer of 
an injured party, by rescinding or annulling a contract 
or transaction valid by the strict law, or annulling a 
change in the legal condition produced by an omission, 
RESTITUTION 
and restoring the parties to their previous situation or 
legal relations. The restoration of a cause to its first 
state, on petition of the party who was cast, in order to 
have a second hearing. 
Maximum measure of damages awarded in event of a 
marine collision is "restitutio in integrum" which strict
ly construed limits damages to the difference in value of 
vessel before and after collision, but measure is equated 
with the cost of necessary repairs and loss of earnings 
while they are being made. Delta Marine Drilling Co. v. 
M/V Baroid Ranger, C.A.La., 454 F.2d 128, 129. 
Restitution. An equitable remedy under which a person 
is restored to his or her original position prior to loss or 
injury, or placed in the position he or she would have 
been, had the breach not occurred. Act of restoring; 
restoration; restoration of anything to its rightful own
er; the act of making good or giving equivalent for any 
loss, damage or injury; and indemnification. State v. 
Barnett, 110 Vt. 22 1, 3 A.2d 521, 525, 526. Act of 
making good or giving an equivalent for or restoring 
something to the rightful owner. Antoine v. McCaffery, 
Mo.App., 335 S.W.2d 474, 489. Compensation for the 
wrongful taking of property. Com. v. Fuqua, 267 Pa.Su
per. 504, 407 A.2d 24, 25. Restoration of status quo and 
is amount which would put plaintiff in as good a posi
tion as he would have been if no contract had been made 
and restores to plaintiff value of what he parted with in 
performing contract. Explorers Motor Home Corp. v. 
Aldridge, Tex.Civ.App., 541 S.W.2d 851, 852. See Re
statement, Second, Contracts, § 373. 
A person who has been unjustly enriched at the ex
pense of another is required to make restitution to the . 
other. Restatement of the Law, Restitution, § 1. 
In torts, restitution is essentially the measure of dam
ages, while in contracts a person aggrieved by a breach 
is entitled to be placed in the position in which he would 
have been if the defendant had not breached. 
In the law of commercial sales, the buyer's rights to 
restitution are governed by V.C.C. §§ 2-7 11 and 2-7 18. 
See also Unjust enrichment, doctrine of. 
Criminal law. The federal courts and many states have 
restitution programs under which the criminal offender 
is required to repay, as a condition of his sentence, the 
victim or society in' money or services. See e.g. 18 
V.S.C.A. §§ 3663, 3664. 
Maritime law. The placing back or restoring articles 
which have been lost by jettison: This is done, when 
remainder of the cargo has been saved, at the general 
charge of the owners of the cargo. 
Restitution of conjugal rights. In English ecclesiastical 
law, a species of matrimonial cause or suit which was 
brought whenever either a husband or wife was guilty of 
the injury of subtraction, or lived separate from the 
other without any sufficient reason; in which case the 
ecclesiastical jurisdiction compelled them to come to
gether again, if either be weak enough to desire it, 
contrary to the inclination of the other. 3 Bl.Comm. 94. 
Writ of restitution. See that title.

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RESTITUTIONE TEMPORALIUM 
Restitutione extracti ab ecclesia /rest�t(y)uwshiy6wniy 
ekstrrektay reb �kliyz(i)y�/. In ecclesiastical law, a writ 
to restore a man to the church, which he had recovered 
for his sanctuary, being suspected of felony. 
Restitutione temporalium /rest�t(y)uwshiy6wniy tem
p�reyl(i)y�m/. In ecclesiastical law, a writ addressed to 
the sheriff, to restore the temporalities of a bishopric to 
the bishop elected and confirmed. 
Restrain. To limit, confine, abridge, narrow down, re
strict, obstruct, impede, hinder, stay, destroy. To pro
hibit from action; to put compulsion upon; to restrict; 
to hold or press back. To keep in check; to hold back 
from acting, proceeding, or advancing, either by physical 
or moral force, or by interposing obstacle; to repress or 
suppress; to curb. N. L. R. B. v. Exchange Parts Co., 
C.A.5, 304 F.2d 368, 374. To restrict a person's move
ments in such manner as to interfere substantially with 
his liberty. People v. Daniels, 71 C.2d 111 9, 80 Cal.Rptr. 
897, 909, 459 P.2d 225. 
To enjoin. See Injunction; Restraining order. 
Restraining order. An order in the nature of an injunc
tion which may issue upon filing of an application for an 
injunction forbidding the defendant from doing the 
threatened act until a hearing on the application can be 
had. It is distinguishable from an injunction, in that 
the former is intended only as a restraint until the 
propriety of granting an injunction can be determined 
and it does no more than restrain the proceeding until 
such determination. Such an order is limited in its 
operation, and extends only to such reasonable time as 
'may be necessary to have a hearing on an order to show 
cause why an injunction should not issue. Guardian 
Life Ins. Co. of America v. State Bd. of Equalization, 134 
Mont. 526, 335 P.2d 310, 311. See also Injunction; Order; 
Tempor ary restr aining order. 
Restraining powers. Restrictions or limitations im
posed upon the exercise of a power by the donor thereof. 
Restraint. Confinement, abridgment, or limitation. 
Prohibition of action; holding or pressing back from 
action. Hindrance, confinement, or restriction of liber
ty. Obstruction, hindrance or destruction of trade or 
commerce. See Restraint of trade; Stop. 
Unlawful restraint. Unlawful restraint is knowingly 
and without legal authority restraining another so as to 
interfere substantially with his liberty. 
A person is "restrained" or "imprisoned" for false 
imprisonment purposes when he is deprived of either 
liberty of movement or freedom to remain in place of his 
lawful choice, and such restraint or imprisonment may 
be accomplished by physical force alone, by threat of 
force, or by conduct reasonably implying that force will 
be used. Kilcup v. McManus, 64 Wash.2d 771, 394 P.2d 
375, 379. 
Person is guilty of "unla wful restraint" if he knowing
ly: (1) restrains another unlawfully in circumstances 
exposing him to risk of serious bodily injury; or (2) holds 
another in a condition of involuntary servitude. 18 
1314 
Pa.C.S.A. § 2902. See also Im prisonment (False imprison
ment); Kidnapping. 
Term may also refer to restraint of person for search 
or seizure without lawful warrant or probable cause. See 
Search. 
Restraint of marriage. The law will not enforce a 
general restraint of marriage which bars the donee or 
legatee from ever marrying as a condition of receiving 
the gift or legacy; but limitations on a gift which condi
tions it on the donee's or legatee's marrying within a 
certain religion or nationality have been upheld. 
Restraint of princes and rulers. In marine and war 
risk policies, refers to operation of sovereign power by 
exercise of vis major, in its sovereign capacity, control
ling and divesting for the time, the authority of owner 
over ship, and clause applies only to acts done in exer
cise of sovereign power. Baker Castor Oil Co. v. Ins. Co. 
of North America, 157 F.2d 13. Where the "restraint of 
princes" clause or similar language is found in the 
contract, a reasonable apprehension of capture or de
struction of the ship or cargo will justify nonperform
ance of the agreement to carry. The George J. Goulan
dris, D.C.Me., 36 F.Supp. 827, 830, 834. A "restraint of 
princes" may be an act performed for purposes connect
ed with the prosecution of war, or some other act, such 
as quarantines or prohibition of entry into port for 
sanitary reasons. 
Restraint of trade. Contracts or combinations which 
tend or are designed to eliminate or stifle competition, 
effect a monopoly, artificially maintain prices, or other
wise hamper or obstruct the course of trade and com
merce as it would be carried on if left to the control of 
natural economic forces. U. S. v. Reading Co., 253 U.S. 
26, 40 S.Ct. 425, 429, 64 L.Ed. 760; U. S. v. Socony-Vac
uum Oil Co., 310 U.S. 150, 221, 60 S.Ct. 811, 84 L.Ed. 
1129. Term as used in Sherman Act means "unreason
able restraints of trade" which are illegal per se re
straints interfering with free competition in business 
and commercial transactions which tend to restrict pro
duction, affect prices, or otherwise control market to 
detriment of purchasers or consumers of goods and 
services, or those restraints of trade, ordinarily reason
able, but made unreasonable because accompanied with 
specific intent to accomplish equivalent of a forbidden 
restraint. Klor's Inc. v. Broadway-Hale Stores, Inc., 
C.A.Cal., 255 F.2d 214, 230. To restrain interstate trade 
and commerce means to interfere unreasonably with the 
ordinary, usual and freely-competitive pricing or distri
bution system of the open market in interstate trade 
and commerce. A conspiracy may restrain interstate 
commerce even though some or all of the defendants are 
not engaged in interstate commerce, and even though 
some or all of the means employed may be acts wholly 
within a state, if there is a substantial and direct effect 
on interstate commerce. Sherman Antitrust Act, § 1. 
See also Rule (Rule of reason); Sherman Antitrust Act. 
Restraint on alienation. A provision in an instrument 
of conveyance which prohibits the grantee from selling 
or transferring the property which is the subject of the 
conveyance. Most such restraints are unenforceable as 
against public policy and the law's policy of free aliena
bility of land. See Restrictive covenant.

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1315 
Any provision in a trust or other instrument which, 
either by express terms or by implication, purports to 
prohibit or penalize the use of the power of alienation; 
the trusts usually involved are spendthrift, discretionary 
and support trusts. Philp v. Trainor, Fla.App., 100 
So.2d 181, 183. See also Perpetuity. 
Res transit cum suo onere /riyz tramz�t k�m s(y)uwow 
6wn�riy /. The thing passes with its burden. Where a 
thing has been incumbered by mortgage, the incum
brance follows it wherever it goes. 
Restrict. To restrain within bounds; to limit; to con
fine. See also Restraint. 
Restricted securities. Securities acquired directly or 
indirectly from an issuer, or from a person in a con
trolled relationship with the issuer (an "affiliate") in a 
transaction or chain of transactions not involving any 
public offering. Bader v. Fleschner, D.C.N.Y., 463 
F.Supp. 976, 979. Those securities that either by con
tract or by law cannot be distributed to public; a "re
stricted security" is one that has no market. Eastern 
Service Corp. v. C.I.R., C.A.2, 650 F.2d 379, 383. 
Restricted surplus. The portion of retained earnings 
which cannot be distributed as dividends. The restric
tions are generally due to preferred dividends in arrears, 
covenants in a loan agreement, or a decision by the 
Company's Board of Directors. 
Restriction. A limitation, often imposed in a deed or 
lease respecting the use to which the property may be 
put. See e.g. Restrictive covenant. 
Restrictive covenant. Provision in a deed limiting the 
use of the property and prohibiting certain uses. In 
context of property law, term describes contract between 
grantor and grantee which restricts grantee's use and 
occupancy of land; generally, purpose behind restrictive 
covenants is to maintain or enhance value of lands 
adjacent to one another by controlling nature and use of 
surrounding lands. Cunningham v. Hiles, 182 Ind.App. 
511, 395 N.E.2d 851, 854. Covenants which restrict use 
of property on basis of race are unenforceable. Barrows 
v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; 
Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 
373. 
Also, clauses in contracts of partnership and employ
ment which limit a contracting party after termination 
of the contract in performing similar work for a period 
of time and within a certain geographical area. If 
reasonable as to time and area, such clauses are enforce
able. 
Restrictive indorsement. An indorsement so worded as 
to restrict the further negotiability of the instrument. 
Thus, "Pay the contents to J. S. only," or "to J. S. for my 
use," are restrictive indorsements, and put an end to the 
negotiability of the paper. 
An indorsement is restrictive which either (a) is condi
tional; or (b) purports to prohibit further transfer of the 
instrument; or (c) includes the words "for collection", 
"for deposit", "pay any bank", or like terms signifying a 
purpose of deposit or collection; or (d) otherwise states 
RETAILER 
that it is for the benefit or use of the indorser or of 
another person. U.C.C. § 3-205. 
Resulting powers. Powers of the federal government 
derived from a combination of several grants or the 
aggregate of power granted to the federal government. 
See Power (Constitutional powers). 
Resulting trust. Trust implied in law from intentions of 
parties to a given transaction. Diel v. Beekman, 1 
Wash.App. 874, 465 P.2d 212, 214. 
One in which a party, through no actual or construc
tive fraud, becomes invested with legal title, but holds 
that title for the benefit of another, although without 
expressed intent to do so, because of a presumption of 
such intent arising by operation of law. First Nat. Bank 
of Denver v. Harry W. Rabb Foundation, 29 Colo.App. 
34, 479 P.2d 986, 988, 989. A "resulting trust" arises 
where a person makes or causes to be made a disposition 
of property under circumstances which raise an infer
ence that he does not intend that person taking or 
holding the property should have the beneficial interest 
therein, unless inference is rebutted or the beneficial 
interest is otherwise effectively disposed of. Lifemark 
Corp. v. Merritt, Tex.App. 14 Dist., 655 S.W.2d 310, 316. 
Restatement, Second, Trusts, § 404. 
Resulting use. See Use. 
Resummons. A second summons. The calling a person 
a second time to answer an action, where the first 
summons is defeated upon any occasion; as the death of 
a party, or the like. 
Resumption. In old English law, the taking again into 
the king's hands such lands or tenements as before, 
upon false suggestion, or other error, he had delivered to 
the heir, or granted by letters patent to any man. 
Resurrender. Where copyhold land has been mortgaged 
by surrender, and the mortgagee has been admitted, 
then, on the mortgage debt being paid off, the mortgagor 
is entitled to have the land reconveyed to him, by the 
mortgagee surrendering it to the lord to his use. This is 
called a resurrender. 
Retail, v. To sell by small quantities, in broken lots or 
parcels, not in bulk, directly to consumer. Sales made 
in minimal quantities to ultimate consumer to meet 
personal needs, rather than for commercial or industrial 
users. Witco Chemical Corp. v. U.S., 2 Cl.Ct. 504, 507. 
In general, wholesalers sell to retailers who in turn sell 
to consumers. 
Retail, n. A sale for final consumption in contrast to a 
sale for further sale or processing (i.e. wholesale). A 
sale to the ultimate consumer. 
Retailer. A person engaged in making sales to ultimate 
consumers. One who sells personal or household goods 
for use or consumption. 
The essential distinction between a "wholesaler" and 
"retailer" as respects application of the Fair Labor Stan
dards Act is that the person buying from the retailer is 
the ultimate user or consumer of the article or commodi
ty or does not sell it again whereas the one buying from

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RETAILER 
a wholesaler buys only for the purpose of selling the 
article again. Haynie v. Hogue Lumber & Supply Co. of 
Gulfport, 96 F.Supp. 214, 216. 
Retail installment account. An account established by 
an agreement entered into pursuant to which the buyer 
promises to pay, in installments, to a retail seller his 
outstanding balance incurred in retail installment sales, 
whether or not a security interest in the goods sold is 
retained by the seller, and which provides for a finance 
charge which is expressed as a percent of the periodic 
balances to accrue thereafter providing such charge is 
not capitalized or stated as a dollar amount in such 
agreement. Calif.Civil Code, § 1802.7. 
Retail installment contract. Any contract for a retail 
installment sale between a buyer and seller, entered 
into or performed which provides for (a) repayment in 
installments, whether or not such contract contains a 
title retention provision, and in which the buyer agrees 
to pay a finance charge, or in which the buyer does not 
agree to pay a finance charge but the goods or services 
are available at a lesser price if paid for by either cash 
or credit card, or in which the buyer would have re
ceived any additional goods or services or any higher 
quality goods or services at no added cost over the total 
amount payable in installments if the sale had been for 
cash, or (b) which provides for payment in more than 
four installments. Calif. Civil Code, § 1802.6. 
Retail sale. A sale in small quantities or direct to 
consumer, as distinguished from sale at "wholesale" in 
large quantity to one who intends to resell. Mitchell v. 
Sorvas, D.C.Pa., 182 F.Supp. 800, 802. The ordinary 
meaning of term "retail sale" within sales tax statutes is 
a sale to an ultimate consumer. Standard Oil Co. of Cal. 
v. State, 57 Wash.2d 56, 355 P.2d 349, 352. See also 
Retail. 
Retain. To continue to hold, have, use, recognize, etc., 
and to keep. 
To engage the services of an attorney or counsellor to 
manage a specific matter or action or all legal matters 
in general. See Retainer. 
Retained earnings. An account on the balance sheet 
which represents the accumulated earnings of a corpora
tion less any dividend distributions (including capitaliza
tion through stock dividends). It is usually a credit 
balance and a component of stockholder's equity. Re
tained earnings are also called "undistributed profits" or 
"earned surplus." See Accumulated earnings tax; Earned 
surplus; Surplus; Und istributed profits. 
Retainer. The act of withholding what one has in one's 
own hands by virtue of some right. In the practice of 
law, when a client hires an attorney to represent him, 
the client is said to have retained the attorney. This act 
of employment is called the retainer. The retainer 
agreement between the client and attorney sets forth 
the nature of services to be performed, costs, expenses, 
and related matters. If the client employs the attorney 
for a specific case, that is called a special retainer. In 
contrast, if a client hires a lawyer for a specific length of 
time (e.g., a year) rather than for a specific project, that 
1316 
is called a general retainer. The lawyer, during the 
period of the general retainer, may not accept any 
conflicting employment. 
Right to retainer. The right which the executor or 
administrator of a deceased person has to retain out of 
the assets sufficient to pay any debt due to him from the 
deceased in priority to the other creditors whose debts 
are of equal degree. In re Smith's Estate, 179 Wash. 
417, 38 P.2d 244, 245. 
Retainer pay. Compensation paid to enlisted men re
tained in the service but not rendering active service. 
French v. French, Cal ., 105 P.2d 155, 157. 
Retaining fee. A fee given to counsel on engaging his 
services. See Retainer. 
Retaining lien. A possessory lien which attaches to 
client's papers, money and property which came into 
attorney's hands during course of his employment. Ap
plication of Fox, 22 Misc.2d 177, 198 N.Y.S.2d 789, 79l. 
Attorney's right to retain possession of property belong
ing to his client which comes into his hands within the 
scope of his employment until his charges are paid. 
Jovan v. Starr, 87 Ill.App.2d 350, 231 N.E.2d 637, 639. 
See also Attorney's lien. 
Retaking. The taking one's goods, from another, who 
without right has taken possession thereof. See Recap
tion. 
Retaliation. See Lex talionis. 
Retaliatory eviction. Act of landlord in commencing 
eviction proceedings against tenant because of tenant's 
complaints, participation in tenant's union, or like activ
ities with which the landlord is not in agreement. In 
some states, such retaliation will bar the landlord from 
enforcing his normal remedies against tenant. 
Retaliatory law. Restraints placed by state law on 
foreign companies equal to the restraints placed by such 
foreign jurisdictions on companies doing business in 
such states. Many states have such laws. For example, 
in Pennsylvania if by laws of any other state or foreign 
government any taxes, fines, penalties, license fees or 
other obligations or prohibitions additional to or in 
excess of those imposed by Pennsylvania laws on insur
ance companies, associations and exchanges of other 
states, are imposed on insurance companies, associations 
and exchanges of Pennsylvania doing business in such 
state, like obligations and prohibitions are imposed on 
insurance companies, associations and exchanges of such 
state doing business in Pennsylvania. 
Retallia /r;;)treliy;;)/. In old English law, retail; the cut
ting up again, or division of a commodity into smaller 
parts. 
Retenementum /r;;)ten;;)mimt;;)m/. In old English law, 
restraint; detainment; withholding. 
Retinentia /ret;;)nEmsh(iy);;)/. A retinue, or persons re
tained by a prince or nobleman. 
Retirement. Termination of employment, service, trade 
or occupation upon reaching retirement age, or earlier

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1317 
at election of employee, self-employed, or professional. 
Removal of fixed asset from service. 
Retirement annuity. Type of pension plan paid 
through annuities to those who have retired. Plans 
differ as to the rights of survivors of the annuitant. 
Retirement of securities. Cancellation of reacquired or 
redeemed stocks or bonds. See also Redemption; Stock 
(Stock redemption). 
Retirement plans. General term referring to various 
types of retirement benefit plans provided by employers 
or established individually by self-employed. See In divid
ual retirement account (I. R.A.); Keogh plan; Money-pur
chase plan, Pension plan; Retirement annui ty. Most such 
plans are regulated by the federal Employee Retirement 
Income Security Act (ERISA). 
Retorna brevium /r�t6rn� briyv(i)y�m/. The return of 
writs. The indorsement by a sheriff or other officer of 
his doings upon a writ. 
Retorno habendo /r�t6rnow h�b€mdow/. A writ that 
layed for the distrainor of goods (when, on replevin 
brought, he had proved his distress to be a lawful one) 
against him who was so distrained, to have them re
turned to him according to law, together with damages 
and costs. 
Retorsion /r�t6rsh�n/. In international law, a species of 
retaliation, which takes place where a government, 
whose citizens are subjected to severe and stringent 
regulation or harsh treatment by a foreign government, 
employs measures of equal severity and harshness upon 
the subjects of the latter government found within its 
dominions. 
Retraction. To take back. To retract an offer is to 
withdraw it before acceptance. In law of defamation, a 
formal recanting of the defamatory materiaL Retrac
tion is not a defense but, under certain circumstances, it 
is admissible in mitigation of damages. 
In probate practice, a withdrawal of a renunciation, 
(q.v.). 
Retraxit /r�trreks�tI. Lat. He has withdrawn. 
A retraxit is a voluntary renunciation by plaintiff in 
open court of his suit and cause thereof,· and by it 
plaintiff forever loses his action. Virginia Concrete Co. 
v. Board of Sup'rs of Fairfax County, 197 Va. 821, 91 
S.E.2d 415, 419. It is equivalent to a verdict and judg
ment on the merits of the case and bars another suit for 
the same cause between the same parties. Datta v. 
Staab, 343 P.2d 977, 982, 173 C.A.2d 613. Under rules 
practice, this is accomplished by a voluntary dismissaL 
Fed.R.Civil P. 41(a). Dismissal with prejudice is the 
modern name for "retraxit". Robinson v. Hiles, 119 
C.A.2d 666, 260 P.2d 194, 197. 
Retreat, n. A place for contemplation especially of a 
religious nature. The totality of exercises in a religious 
house where a person may "take stock" of himself. 
Retreat, v. To withdraw from the world or from an 
encounter. 
RETROSPECTIVE LAW 
Something the defendant must sometimes do before 
using deadly force in self-defense or defense of others. 
Model Penal Code §§ 3.04(2), 3.05(2). 
Retreat to the wall. A common law requirement that 
an endangered person use all reasonable means to avoid 
the necessity of taking human life before resorting to 
deadly force in self-defense. Soberon v. State, Fla.App., 
545 So.2d 490, 492. The requirement is abandoned now 
in the majority of jurisdictions, which hold that one 
assaulted in a place where he has a right to be is under 
no duty to retreat before using deadly force in self-de
fense. People v. White, 127 Misc.2d 219, 484 N.Y.S.2d 
994, 995. See Model Penal Code §§ 3.04(2), 3.05(2). 
Retrial. A new trial of an action which has already been 
once tried. See also Reheari ng; Trial (New trial; Trial 
de novo). Compare Mistrial. 
Retribution. Something given or demanded in pay
ment. In criminal law, it is punishment based on the 
theory which bears its name and based strictly on the 
fact that every crime demands payment in the form of 
punishment. See also Restitution. 
Retro /retrow/. Lat. Back; backward; behind. Ret
rofeodum, a rerefief, or arriere fief. 
Retroactive. Process of acting with reference to past 
occurrences. Annacchino v. Annacchino, 61 Misc.2d 
636, 306 N.Y.S.2d 603, 605. See also Retrospective. 
Retroactive infere nce. The inferring of a previous fact 
from present conditions by a trier of facts. Gray v. 
Kurn, 345 Mo. 1027, 137 S.W.2d 558, 568. 
Retroactive law. "Retroactive" or "retrospective" laws 
are generally defined from a legal viewpoint as those 
which take away or impair vested rights acquired under 
existing laws, create new obligations, impose a new 
duty, or attach a new disability in respect to the transac
tions or considerations already past. Barbieri v. Morris, 
Mo., 315 S.W.2d 711, 714. One which is intended to act 
on things that are past. Aetna Ins. Co. v. Richardelle, 
Tex.Civ.App., 528 S.W.2d 280, 284. A statute which 
creates a new obligation on transactions or considera
tions already past or destroys or impairs vested rights. 
London Guarantee & Accident Co. v. Pittman, 69 Ga. 
App. 146, 25 S.E.2d 60, 65, 66. Such laws may be 
unenforceable because violative of the ex post facto 
clause of the U.S.C onst., Art. I, Sec. 9, Cl. 3. See also 
Retrospective law. 
Retrocession /retr�sesh�n/. In the civil law, when the 
assignee of heritable rights conveys his rights back to 
the cedent. 
Retrospective. Looking backward; contemplating what 
is past; having reference to a state of things existing 
before the act in question. 
Retrospective law. A law which looks backward or 
contemplates the past; one which is made to affect acts 
or facts occurring, or rights accruing, before it came into 
force. Every statute which takes away or impairs vest
ed rights acquired under existing laws, or creates a new 
obligation, imposes a new duty, or attaches a new dis-

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RETROSPECTIVE LAW 
ability in respect to transactions or considerations al
ready past. One that relates back to a previous transac
tion and gives it a different legal effect from that which 
it had under the law when it occurred. Bear Val. Mut. 
Water Co. v. San Bernardino County, 242 Cal.App.2d 68, 
51 Cal.Rptr. 53, 56. See also Ex post facto; Retroactive 
law. 
Return. To bring, carry, or send back; to place in the 
custody of; to restore; to re-deliver. "Return" means 
that something which has had a prior existence will be 
brought or sent back. Sims v. Western Steel Co., C.A. 
Utah, 551 F.2d 811, 820. 
The act of a sheriff, constable, marshall, or other 
ministerial officer, in delivering back to the court a writ, 
notice, process or other paper, which he was required to 
serve or execute, with a brief account of his doings 
under the mandate, the time and mode of service or 
execution, or his failure to accomplish it, as the case 
may be. Also the indorsement made by the officer upon 
the writ or other paper, stating what he has done under 
it, the time and mode of service, etc. Such return (proof 
of service) is required under Rule of Civil Procedure 4. 
See False return; Return day, below. 
A schedule of information required by governmental 
bodies, such as the tax return required by the Internal 
Revenue Service. See Joint tax return; Tax return. 
Merchandise which is brought back to the seller for 
credit or refund. 
Profit on sale, or income from investments (usually 
expressed as annual percentage rate). See Income; Prof
it; Rate (Rate of return), Return on assets; Return on 
equity; Revenue. 
The report made by the court, body of magistrates, 
returning board, or other authority charged with the 
official counting of the votes cast at an election. 
In English practice, the election of a member of par
liament. 
Fair return. See Fair return on investment. 
False return. A return of a writ or process in which the 
officer charged with it falsely reports that he served it, 
when he did not, or makes some other false or incorrect 
statement, whereby injury results to a person interested. 
In taxation, a return that is incorrect. To constitute 
civil or criminal fraud under the Internal Revenue laws, 
such falsity must have been intentional. Mitchell v. C. 
I. R, C.C.A.Ga., 118 F.2d 308. 
Return day. The day named in a writ or process, upon 
which the officer is required to return it. Under Fed.R 
Civil P. 4 the person serving the process shall make 
proof of service (return) to the court promptly and in 
any event within the time during which the person 
served must respond to the process. 
Day on which votes cast are counted and the official 
result is declared. Landrum v. Centennial Rural High 
School Dist. No. 2, Tex.Civ.App., 134 S.W.2d 353, 354. 
Return of premium. The repayment of the whole or a 
ratable part of the premium paid for a policy of insur
ance, upon the cancellation of the contract before the 
1318 
time fixed for its expiration. Equitable Life Assur. Soc. 
of United States v. Johnson, 53 CaLApp.2d 49, 127 P.2d 
95. 
Returnable. To be returned; requiring a return. When 
a writ or process is said to be "returnable" on a certain 
day, it is meant that on that day the officer must return 
it. 
Return day. See Return. 
Returning board. This is the official title in some of 
the states of the board of canvassers of elections. 
Return of process. See Return. 
Return on assets. Ratio of net income to total assets. 
See Return on equity. 
Return on equity. The relationship of the amount of 
annual earnings available after all expenses are paid to 
the total value of all the common shareholders invest
ment. Return on equity is calculated by dividing com
mon stock equity (net worth as shown on the books of 
the corporation) at the beginning of an accounting peri
od into net income for the period after payment of 
preferred stock dividends but before payment of com
mon stock dividends. Return on equity indicates the 
amount earned on each dollar of invested capital; it is 
expressed as a percentage and is a guide to common 
shareholders as to how effectively their money is being 
employed. 
Return on investment. Amount earned per year on an 
investment, usually expressed as percentage. See also 
Rate (Rate of return), Return on assets; Return on equity. 
Reus Iriy�s/. Lat. In the civil and canon law, the 
defendant in an action or suit. A person judicially 
accused of a crime; a person criminally proceeded 
against. 
A party to a suit, whether plaintiff or defendant; a 
litigant. This was the ancient sense of the word. 
A party to a contract. Reus stipulandi, a party stipu
lating; the party who asked the question in the form 
prescribed for stipulations. Reus promittendi, a party 
promising; the party who answered the question. 
Revaluation. The restoration of purchasing power to an 
inflated currency. Change in value by a government of 
its currency in relation to currencies of other countries. 
Also, the resetting of the tax base by recomputing the 
value of real estate subject to taxation. See also Devalu
ation. 
Reve Iriyv/. In old English law, the bailiff of a fran
chise or manor; an officer in parishes within forests, 
who marks the commonable cattle. 
Revel Irev�l/. To behave in a noisy, boisterous manner. 
Reve mote Iriyv mowt/. In Saxon law, the court of the 
reve, reeve, or shire reeve. 
Revendication Iriyvend;)keysh;)n/. In civil law, to re
claim or to demand the restoration of; to "reclaim" 
being to claim something back, which is in the posses
sion of another, but which belongs to the claimant. The 
right of a vendor to reclaim goods sold out of the

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1319 
possession of the purchaser, where the price was not 
paid. Ellis v. Davis, 109 U.S. 485, 3 S.Ct. 327, 27 L.Ed. 
1006. The civil law equivalent to replevin (q.v.). 
Revendication action /riyvend�keysh;m reksh�n/. In 
civil law, one by which a man demands a restoration of 
a thing of which he claims to be the owner. 
Revenue. The gross receipts of a business, individual, 
government, or other reporting entity. The receipts are 
usually the results of product sales, services rendered, 
interest earned, etc. See also Gross revenue. 
As applied to the income of a government, a broad and 
general term, including all public moneys which the 
state collects and receives, from whatever source and in 
whatever manner. See Public revenues, below. 
Land revenues. See Land revenues. 
Public revenues. The income which a government col
lects and receives into its treasury, and is appropriated 
for the payment of its expenses. Public Market Co. of 
Portland v. City of Portland, 171 Or. 522, 130 P.2d 624, 
644. Annual or periodical yield of taxes, excise, custom, 
dues, rents, etc., which a nation, state or a municipality 
collects and receives into treasury for public use; public 
income of whatever kind. City of Phoenix v. Arizona 
Sash, Door & Glass Co., 80 Ariz. 100, 293 P.2d 438, 440. 
Current income of nation, state, or local government 
from whatever source derived which is subject to appro
priation for public uses. Spink v. Kemp, 365 Mo. 368, 
283 S.W.2d 502, 513. 
Revenue bills. Legislative bills that levy or raise taxes. 
Bills for raising federal revenue must arise in the House 
of Representatives. Art. I, Sec. 7, U.S.C onst. See also 
Revenue law or measure. 
Revenue bonds. Type of bond issued by a state or local 
government repayable by the particular unit of govern
ment which issues it. Also, a bond issued for a specific 
public purpose such as the construction or maintenance 
of a bridge and repayable from income generated by 
such project. Term is a descriptive qualification which 
indicates that the instruments are payable solely from a 
revenue producing public project. Dalton v. State Prop
erty and Buildings Commission, Ky., 304 S.W.2d 342, 
352. 
Revenue law or measure. Any law which provides for 
the assessment and collection of a tax to defray the 
expenses of the government. Such legislation is com
monly referred to under the general term "revenue 
measures" or "revenue bills", and those measures in
clude all the laws by which the government provides 
means for meeting its expenditures. Western Heights 
Land Corp. v. City of Fort Collins, 146 Colo. 464, 362 
P.2d 155, 158. See also Revenue bills. 
Revenue neutral. Changes in the tax law which result 
in the same amount of overall total revenue (i.e., no 
overall increase or decrease in general revenue) though 
received from different sources. For example, a tax act 
might require corporations to pay more in taxes, but 
such excess revenue is offset by individuals paying less. 
REVERSE DISCRIMINATION 
Revenue Procedure. A matter of procedural impor
tance to both taxpayers and the I.R.S. concerning the 
administration of the tax laws is issued as a Revenue 
Procedure (abbreviated as "Rev.Proc."). A Revenue Pro
cedure is first published in an Internal Revenue Bulletin 
(I.R.B.) and later transferred to the appropriate Cumula
tive Bulletin (C.B.). Both the Internal Revenue Bulle
tins and the Cumulative Bulletins are published by the 
U.S. Government Printing Office and many commercial 
tax services. 
Revenue Ruling. A Revenue Ruling (abbreviated "Rev. 
RuL") is issued by the National Office of the I.R.S. to 
express an official interpretation of the tax law as 
applied to specific transactions. Unlike a Regulation, it 
is more limited in application. A Revenue Ruling is 
first published in an Internal Revenue Bulletin (I.R.B.) 
and later transferred to the appropriate Cumulative 
Bulletin (C.B.). Both the Internal Revenue Bulletins 
and the Cumulative Bulletins are published by the U.S. 
Government Printing Office and many commercial tax 
services. I.R.C. § 7805. See also Letter ruling; Private 
letter ruling. 
Revenue stamps. Formerly, a federal tax on sale of 
real property; since replaced by state tax stamps. The 
stamps are affixed to the conveyancing instrument 
(deed), or a rubber stamp is used to show the amount of 
the tax. 
Re, verbis, scripto, consensu, traditione, junctura 
vestes sumere pacta solent /riy, v;}rb�s, skriptow, 
k�nsens(y)uw, tr�dishiy6wniy, j�IJkt(y)ur� vestiyz 
s(y)uwm�riy prekt� s6wl�nt/. Compacts usually take 
their clothing from the thing itself, from words, from 
writing, from consent, from delivery. 
Reversal. The annulling or setting aside by an appel
late court of a decision of a lower court. See also 
Overrule; Remand; Revise; Vacate. 
Reverse. To overthrow, vacate, set aside, make void, 
annul, repeal, or revoke; as, to reverse a judgment, 
sentence or decree of a lower court by an appellate 
court, or to change to the contrary or to a former 
condition. Department of Water and Power of City of 
Los Angeles v. Inyo Chemical Co., Cal.App., 100 P.2d 
822, 826. To reverse a judgment means to overthrow it 
by contrary decision, make it void, undo or annul it for 
error. Atlantic Coast Line R. Co. v. St. Joe Paper Co., 
C.A.Fla., 216 F.2d 832, 833. See also Reversal. 
Reversed (Rev'd.). An indication that a decision of one 
court has been reversed by a higher court in the same 
case. 
Reverse discrimination. Prejudice or bias exercised 
against a person or class for purpose of correcting a 
pattern of discrimination against another person or 
class. A type of discrimination in which majority 
groups are purportedly discriminated against in favor of 
minority groups, usually via af firmative action pro
grams. Regents of University of California v. Bakke,

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REVERSE DISCRIMINATION 
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. See also 
Affirmative action programs. 
Reverse stock split. The reduction in the number of 
corporate shares outstanding by calling in all shares and 
issuing a smaller number, though the capital of the 
corporation remains the same. It is the opposite of a 
stock split. Its effect is to increase the value of each 
share. Reverse stock splits often create fractional 
shares and may be used as a device to go private. See 
also Stock (Stock split). 
Reversible error. See Error. 
Reversing (Rev'g.). An indication that the decision of a 
higher court is reversing the result reached by a lower 
court in the same case. 
Reversio /r�v�rzh(iy)ow/. L. Lat. In old English law, 
the returning of land to the donor. 
Reversion or estate in reversion /(�steyt in) r�v�r
zh�n/. A future interest under which a grantor retains 
a present right to a future interest in property that the 
grantor conveys to another; usually the residue of a life 
estate. The residue of an estate left by operation of law 
in the grantor or his heirs, or in the heirs of a testator, 
commencing in possession on the determination of a 
particular estate granted or devised. Any future inter
est left in a transferor or his successor. Miller v. 
Dierken, 153 Pa.Super. 389, 33 A.2d 804, 805. It is a 
vested interest or estate, in as much as person entitled 
to it has a flXed right to future enjoyment. Any rever
sionary interest which is not subject to condition prece
dent; it arises when the owner of real estate devises or 
conveys an interest in it less than his own. Mayor and 
City Council of Ocean City v. Tabor, 279 Md. 115, 367 
A.2d 1233, 1240. 
The term reversion has two meanings, first, as desig
nating the estate left in the grantor during the continu
ance of a particular estate and also the residue left in 
grantor or his heirs after termination of particular es
tate. Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 
641, 642; Miller v. C. I. R., C.C.A.6, 147 F.2d 189, 193. 
It differs from a remainder in that it arises by act of the 
law, whereas a remainder is by act of the parties. A 
reversion, moreover, is the remnant left in the grantor, 
while a remainder is the remnant of the whole estate 
disposed of, after a preceding part of the same has been 
given away. 
See also Escheat; Possibility (Possibility of reverter); 
Reversionary interest. Compare Remainder. 
Reversionary /r�v�rzh�nehriy/. That which is to be 
enjoyed in reversion. 
Reversionary interest. The interest which a person 
has in the reversion of lands or other property. A right 
to the future enjoyment of property, at present in the 
possession or occupation of another. The property that 
reverts to the grantor after the expiration of an inter
vening income interest. Assume, for example, G places 
real estate in trust with income to A for eleven years 
and, upon the expiration of this term, the property 
returns to G. Under these circumstances, G has re-
1320 
tained a reversionary interest in the property. A rever
sionary interest is the same as a remainder interest 
except that in the latter case the property passes to 
someone other than the original owner (e.g., the grantor 
of a trust) upon the expiration of the intervening inter
est. See also Clifford trust; Remainder; Reversion. 
Reversionary lease. One to take effect in futuro. A 
second lease, to commence after the expiration of a 
former lease. 
Reversioner /r�v�rzh�n�r/. A person who is entitled to 
an estate in reversion. By an extension of its meaning, 
one who is entitled to any future estate or any property 
in expectancy. 
Reversio terrre est tanquam terra revertens in posses
sione donatori, sive hreredibus suis post donum. fini
tum. /r�v�rzh(iy)ow tehriy est treIJkw�m tehr� r�v�rtenz 
in p�zeshiy6wniy down�t6ray, sayviy h�red�b�s s(y)uw�s 
powst d6wn�m f�nayt�m/. A reversion of land is, as it 
were, the return of the land to the possession of the 
donor or his heirs after the termination of the estate 
granted. 
Revert /r�v�rt/. To turn back, to return to. With 
respect to property to go back to and lodge in former 
owner, who parted with it by creating estate in another 
which has expired, or to his heirs. As used in a deed 
connotes an undisposed of residue and imports that 
property is to return to a person who formerly owned it, 
but who parted with the possession or title by creating 
an estate in another person which has terminated by his 
act or by operation of law. Thurman v. Hudson, Ky., 
280 S.W.2d 507, 508. See also Reversion; Reversionary 
interest. 
Reverter /r�v�rt�r/. Reversion. A possibility of revert
er is that species of reversionary interest which exists 
when the grant is so limited that it may possibly termi
nate. See Formedon in the reverter. 
Revest. To vest again. A seisin is said to revest, where 
it is acquired a second time by the party out of whom it 
has been divested. Opposed to "divest." The words 
"revest" and "divest" are also applicable to the mere 
right or title, as opposed to the possession. 
Revestire /riyvestayriy/. In old European law, to re
turn or resign an investiture, seisin, or possession that 
has been received; to reinvest; to re-enfeoff. 
Review. To re-examine judicially or administratively. 
A reconsideration; second view or examination; revi
sion; consideration for purposes of correction. Used 
especially of the examination of a decision of a lower 
court or administrative body by an appellate court or 
appellate administrative body (e.g. Appeals Council in 
social security cases). See Appeal; Board of review; Re
hearing; Retrial. 
Bill of review. In equity practice, a bill, in the nature of 
a writ of error, filed to procure an examination and 
alteration or reversal of a decree made upon a former 
bill, which decree has been signed and enrolled. See 
also Bill .

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1321 
Revise. To review and re-examine for correction. To go 
over a thing for the purpose of amending, correcting, 
rearranging, or otherwise improving it; as, to revise 
statutes, or a judgment. State ex reI. Taylor v. Scofield, 
184 Wash. 250, 50 P.2d 896, 897. 
Revised statutes. A body of statutes which have been 
revised, collected, arranged in order, and re-enacted as a 
whole. This is the legal title of the collections of com
piled laws of several of the states, and also of the United 
States. Such a volume is usually cited as "Rev.Sta t.," 
"Rev.St.," or "R.S." See also Code. 
Revision. A re-examination or careful reading over for 
correction or improvement. 
Revision of statutes. A "revision of law" on any subject 
is a restatement of the law on that subject in a correlat
ed or improved from, which is intended as a substitute 
for the law as previously stated, and displaces and 
repeals former laws relating to same subject and within 
purview of revising statute. State v. Pitet, 69 Wyo. 478, 
243 P.2d 177, 184. Such is more than a restatement of 
the substance thereof in different language, but implies 
a reexamination of them, and may constitute a restate
ment of the law in a corrected or improved form, in 
which case the statement may be with or without mate
rial change, and is substituted for and displaces and 
repeals the former law as it stood relating to the sub
jects within its purview. Elite Laundry Co. v. Dunn, 126 
W.Va. 858, 30 S.E.2d 454, 458. See also Codification; 
Revised statutes. 
Revisor of statutes. Person or body charged with revis
ing statutes. 
Revival. The process of renewing the operative force of 
a judgment which has remained dormant or unexecuted 
for so long a time that execution cannot be issued upon 
it without new process to reanimate it. 
The act of renewing the legal force of a contract or 
obligation, which had ceased to be sufficient foundation 
for an action, on account of the running of the statute of 
limitations, by giving a new promise or acknowledgment 
of it. 
A will may be revived under certain conditions if the 
testator revokes an instrument which purported to re
voke his or her will. Many states require republication 
(q. v.) of the former will as a requisite to revival. 
Revival of action. Under certain conditions, a cause of 
action barred by the statute of limitations may be 
brought to life again. See e.g. 28 U.S.C.A. § 2415. 
The substitution of the personal representative of a 
deceased party will revive an action and make it prose
cutable by the substituted party. Fed.R.Civ.P. 17(a). 
Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944. See also 
e.g. 28 U .S.C.A. § 2404. 
Revival of will. See Revival. 
Revival statutes. State and federal laws which provide 
for the renewal of actions, wills and the legal effect of 
documents. 
Revive. To renew, revivify; to make one's self liable for 
a debt barred by the statute of limitations by acknowl-
REVOCATION 
edging it; or for a matrimonial offense, once condoned, 
by committing another. 
Revivor, bill of. In equity practice, a bill filed for the 
purpose of reviving or calling into operation the proceed
ings in a suit when, from some circumstance (as the 
death of the plaintiff), the suit had abated. 
Revivor, writ of. In English practice, where it became 
necessary to revive a judgment, by lapse of time, or 
change by death, etc., of the parties entitled or liable to 
execution, the party alleging himself to be entitled to 
execution might sue out a writ of revivor in the form 
given in the act, or apply to the court for leave to enter 
a suggestion upon the roll that it appeared that he was 
entitled to have and issue execution of the judgment, 
such leave to be granted by the court or a judge upon a 
rule to show cause, or a summons, to be served accord
ing to the then present practice. 
Revocable. Susceptible of being revoked, withdrawn or 
cancelled; e.g. revocable letter of credit. 
Revocable credit. A credit which can be withdrawn or 
cancelled before its expiration date and without the 
consent of the person in whose favor it was drawn. 
Used in foreign trade. U.C.C. § 5-103(a). 
Revocable letter of credit. Letter of credit which can 
be cancelled or withdrawn at any time. U.C.C. 
§ 5-103(a). 
Revocable transfer. A transfer of property whereby 
the transferor retains the right to recover the property. 
The creation of a revocable trust is an example of a 
revocable transfer. See IRC § 2038. See also Incom
plete transfer. 
Revocable trust. A trust in which the settlor reserves 
the right to revoke. Such provision may have tax impli
cations depending upon the time following its creation 
within which the settlor may revoke. 
Revocation /rev�keysh:m/. The withdrawal or recall of 
some power, authority, or thing granted, or a destroying 
or making void of some will, deed, or offer that had been 
valid until revoked. In contract law, the withdrawal by 
the offeree of an offer that had been valid until with
drawn. It may be either general, all acts and things 
done before; or special, revoking a particular thing. 
Revocation by act of the party is an intentional or 
voluntary revocation. The principal instances occur in 
the case of authorities and powers of attorney and wills. 
In contract law, the withdrawal of an offer by an 
offeror; unless the offer is irrevocable, it can be revoked 
at any time prior to acceptance without liability. 
In criminal law, may refer to termination of a proba
tion or parole order because of either a rule violation or 
a new offense, and forcing the offender to begin or 
continue serving his or her sentence. 
A revocation in law, or constructive revocation, is 
produced by a rule of law, irrespectively of the intention 
of the parties. Thus, a power of attorney is in general 
revoked by the death of the principal. 
See also Abrogation; Cancel; Cancellation; Rescind.

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REVOCATIONE PARLIAMENTI 
Revocatione 
l(iY):lmEmtay/. 
liament. 
parliamenti Irev:lkeyshiyowniy par
An ancient writ for recalling a par-
Revocation of probate. Exists where probate of a will, 
having been granted, is afterwards recalled by the court 
of probate, on proof of a subsequent will, or other 
sufficient cause. 
Revocation of will. The recalling, annulling or render
ing inoperative an existing will, by some subsequent act 
of the testator, which may be by the making of a new 
will inconsistent with the terms of the first, or by 
destroying the old will, or by disposing of the property to 
which it related, or otherwise. 
Revocatur Iriyvowkeyt:lr/. Lat. It is recalled. This is 
the term, in English practice, appropriate to signify that 
a judgment is annulled or set aside for error in fact; if 
for error in law, it is then said to be reversed. 
Revoke. To annul or make void by recalling or taking 
back. To cancel, rescind, repeal, or reverse, as to revoke 
a license or will. See also Revocation. 
Revolt. A revolt goes beyond insurrection in aim, being 
an attempt actually to overthrow the government itself, 
whereas insurrection has as its objective some forcible 
change within the government. A large-scale revolt is 
called a rebellion and if it is successful it becomes a 
revolution. See also Insurrection; Rebellion. 
The endeavor of the crew of a vessel, or any one or 
more of them, to overthrow the legitimate authority of 
her commander, with intent to remove him from his 
command, or against his will to take possession of the 
vessel by assuming the government and navigation of 
her, or by transferring their obedience from the lawful 
commander to some other person. See 18 U.S.C.A. 
§§ 2192, 2193. See also Mutiny. 
Revolution. A complete overthrow of the established 
government in any country or state by those who were 
previously subject to it. Gitlow v. Kiely, D.C.N.Y., 44 
F.2d 227, 232. The word in its broadest significance is 
generally used to designate a sweeping change as ap
plied to political change, it denotes a change in a meth
od or system of government, or of the power which 
controls the government. It is frequently accomplished 
by or accompanied by violent acts, but it need not be 
violent in its methods and it does not necessarily denote 
force or violence. U.S. v. Foster, D.C.N.Y., 9 F.R.D. 367, 
394. See Insurrection; Rebellion. 
Revolutionary, adj. Pertaining to or connected with, 
characterized by, or of nature of, revolution. Gitlow v. 
Kiely, D.C.N.Y., 44 F.2d 227, 233. 
Revolutionary, n. One who instigates or favors revolu
tion or one taking part therein. 
Revolving charge account. See Revolving credit. 
Revolving credit. Type of consumer credit arrange
ment which permits a buyer or a borrower to purchase 
goods or secure loans on a continuing basis so long as 
the outstanding balance of the account does not exceed a 
certain limit. Loans are repaid and new loans granted 
1322 
in a cycle. See also Charge account; Open credit; Open
end credit. 
In commercial financing, binding agreement that com
mits a bank to make loans to a company up to a 
predetermined credit limit. To obtain this type of com
mitment from a bank, a company usually pays a com
mitment fee based on the unused portion of the pledged 
funds. 
Revolving fund. A fund from which withdrawals are 
made either as loans or as disbursements, with the 
obligation of repaying the fund (with or without inter
est) to keep the fund intact. A fund whose amounts are 
continually expended and then replenished; for exam
ple, a petty cash fund. 
Revolving letter of credit. A self-renewing letter of 
credit. The unused portion of the credit is cumulative. 
Revolving loan. A loan which is expected to be re
newed (i.e. turned over) at maturity. 
Rev. Proc. See Revenue Procedure. 
Rev. Rut See Revenue Ruling. 
Reward. A recompense or premium offered or bestowed 
by government or an individual in return for special or 
extraordinary services to be performed, or for special 
attainments or achievements, or for some act resulting 
to the benefit of the public; as, a reward for useful 
inventions, for the discovery and apprehension of crimi
nals, for the restoration of lost property. That which is 
offered or given for some service or attainment; sum of 
money paid or taken for doing, or forbearing to do, some 
act. See also Award; Prize. 
Rex Ireks/. Lat. The king. The king regarded as the 
party prosecuting in a criminal action; as in the form of 
entitling such actions, "Rex v. Doe." 
Rex debet esse sub lege quia lex facit regem Ireks 
deb:lt esiy s�b liyjiy kwaY:l leks feys:lt riyj;m/. The king 
ought to be under the law, because the law makes the 
king. 1 Bl.Comm. 239. 
Rex est legalis et politicus Ireks est bgeyl:ls et 
p:llit:lk:ls/. The king is both a legal and political person. 
Rex est lex vivens Ireks est leks vayvenz/. The king is 
the living law. 
Rex est major singulis, minor universis Ireks est 
meyj;r siIJg(y):lI:lS, mayn;r yuwn:lv:lrs:ls/. The king is 
greater than any single person, less than all. 
Rex hoc solum non potest facere quod non potest 
injuste agere Ireks hok sowl;m non powt:lst fres:lriy 
kwod non powt;st inj:lstiy rej:lriy I. The king can do 
everything but an injustice. 
Rex non debit esse Bub homine, sed Bub deo et But 
lege, quia lex facit regem Ireks non deb;t esiy s�b 
hom;niy sed s;b diyo et s�b liyjiy, kway; leks feys;t 
riyj;m/. The king ought to be under no man, but under 
God and the law, because the law makes a king.

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Rex non potest fallere nec falIi Ireks non powt::lst 
frei::lriy nek frelay I. The king cannot deceive or be 
deceived. 
Rex non potest peccare Ireks non powt::lst p::lkeriy I. 
The king cannot do wrong; the king can do no wrong. 
An ancient and fundamental principle of the English 
constitution. 
Rex nunquam. moritur Ireks n;)IJkw::lm mor::lt::lr/. The 
king never dies. 
R.F.C.A. Reconstruction Finance Corporation Act. 
R.F.D. Rural Free Delivery. 
R.G. An abbreviation for Regula Generalis, a general 
rule or order of court; or for the plural of the same. 
Rhandir. A part in the division of Wales before the 
Conquest. Every township comprehended four gavels, 
and every gavel had four rhandirs, and four houses or 
tenements constituted every rhandir. 
Rhodian laws IrowdiY::ln loz/. The earliest code or 
collection of maritime laws. It was formulated by the 
people of the island of Rhodes, who, by their commercial 
prosperity and the superiority of their navies, had ac
quired the sovereignty of the seas. Its date is very 
uncertain, but is supposed (by Kent and others) to be 
about 900 B.C. Nothing of it is now extant except the 
article on jettison, which has been preserved in the 
Roman collections or Pandects (Dig. 14, 2; 3 Kent, 
Comm. 232, 233 "Lex Rhodia de Jactu. ") The Lex 
Rhodia de Jactu provided that when the goods of an 
owner are thrown overboard for the safety of the ship or 
of the property of other owners, he becomes entitled to a 
ratable contribution. It has been adopted into the law 
of all civilized nations. Another code, under the same 
name, was published in more modern times, but is 
generally considered, by the best authorities, to be spuri
ous. 
Rial /riyal/. A piece of gold coin current for lOs., in the 
reign of Henry VI, at which time there were half-rials 
and quarter-rials or rial-farthings. In the beginning of 
Queen Elizabeth's reign, golden rials were coined at 15s. 
a piece; and in the time of James I there were rose-rials 
of gold at 30s. and spur-rials at 15s. 
Ribaud Iriybow /. A rogue; vagrant; whoremonger; a 
person given to all manner of wickedness. 
RICO laws. Racketeer Influenced and Corrupt Orga
nizations laws. Federal and state laws designed to in
vestigate, control, and prosecute organized crime. 18 
U.S.C.A. § 1961 et seq. Both criminal prosecution and 
civil actions may be brought under RICO statutes. 
Federal RICO laws prohibit a person from engaging in 
activities which affect interstate or foreign commerce, 
including: (1) using income received from a pattern of 
racketeering to acquire an interest in an enterprise; (2) 
acquiring or maintaining an interest in an enterprise 
through a pattern of racketeering; (3) conducting or 
participating in the affairs of an enterprise through a 
pattern of racketeering; and, (4) conspiring to commit 
any of the above offenses. To establish a prima facie 
RIGHT 
RICO claim, a civil plaintiff or prosecutor must allege 
the existence of seven elements: "(1) that the defendant 
(2) through the commission of two or more acts (3) 
constituting a 'pattern' (4) of 'racketeering activity' (5) 
directly or indirectly invests in, or maintains an interest 
in, or participates in (6) an 'enterprise' (7) the activities 
of which affect interstate or foreign commerce." 18 
U.S.C.A. § 1962. Moss v. Morgan Stanley, Inc., C.A. 
N.Y., 719 F.2d 5, 17. 
See also Pattern of racketeering activity. 
Rider. A schedule or small piece of paper reflecting an 
amendment, addition or endorsement annexed to some 
part of a contract, document, insurance policy, or record. 
Any kind of a schedule or writing annexed to a doc
ument which cannot well be incorporated in the body of 
such document. Such are deemed to be incorporated 
into the terms of the document. Thus, in passing bills 
through a legislature, when a new clause or law is added 
after the bill has passed through committee, such new 
law or clause is termed a "rider." Another common 
example of a rider is an attachment to an insurance 
policy that modifies the conditions of the policy by 
expanding or restricting its benefits or excluding certain 
conditions from coverage. With the use of the rider the 
entire document does not have to be rewritten or re
drafted again. 
Rien culp. In old pleading, not guilty. 
Rien dit. In old pleading, says nothing (nil dicit). 
Rien luy doit. In old pleading, owes him nothing. The 
plea of nil debet. 
Riens en arriere. Nothing in arrear. A plea in an 
action of debt for arrearages of account. 
Riens passa per Ie fait. Nothing passed by the deed. A 
plea by which a party might avoid the operation of a 
deed, which had been enrolled or acknowledged in court; 
the plea of non est factum not being allowed in such 
case. 
Riens per descent. Nothing by descent. The plea of an 
heir, where he is sued for his ancestor's debt, and has no 
land from him by descent, or assets in his hands. 
Rier county Irir kawntiy/. In old English law, after
county; i.e., after the end of the county court. A time 
and place appointed by the sheriff for the receipt of the 
king's money after the end of his county, or county 
court. 
Rifflare Irifleriy /. To take away anything by force. 
Rigging the market. A term of the stock-exchange, 
denoting the practice of inflating the price of given 
stocks, or enhancing their quoted value, by a system of 
pretended purchases, designed to give the air of an 
unusual demand for such stocks. 
Right. As a noun, and taken in an abstract sense, means 
justice, ethical correctness, or consonance with the rules 
of law or the principles of morals. In this signification 
it answers to one meaning of the Latin "jus," and serves 
to indicate law in the abstract, considered as the founda
tion of all rights, or the complex of underlying moral

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RIGHT 
principles which impart the character of justice to all 
positive law, or give it an ethical content. As a noun, 
and taken in a concrete sense, a power, privilege, faculty, 
or demand, inherent in one person and incident upon 
another. Rights are defined generally as "powers of 
free action." And the primal rights pertaining to men 
are enjoyed by human beings purely as such, being 
grounded in personality, and existing antecedently to 
their recognition by positive law. But leaving the ab
stract moral sphere, and giving to the term a juristic 
content, a "right" is well defined as "a capacity residing 
in one man of controlling, with the assent and assistance 
of the state, the actions of others." 
As an adjective, the term "right" means just, morally 
correct, consonant with ethical principles or rules of 
positive law. It is the opposite of wrong, unjust, illegal. 
A power, privilege, or immunity guaranteed under a 
constitution, statutes or decisional laws, or claimed as a 
result of long usage. See Bill of rights; Civil liberties; Civil 
Rights Acts; Natural rights. 
In a narrower signification, an interest or title in an 
object of property; a just and legal claim to hold, use, or 
enjoy it, or to convey or donate it, as he may please. 
A legally enforceable claim of one person against 
another, that the other shall do a given act, or shall not 
do a given act. Restatement of the Law of Property, § l. 
That which one person ought to have or receive from 
another, it being withheld from him, or not in his 
possession. In this sense "right" has the force of 
"claim," and is properly expressed by the Latin "jus. " 
See also Conditional right; Correlative rights; Droit; Jus; 
Justice; Natural rights; Power; Recht; Vested rights. 
General Classification 
Rights may be described as perfect or imperfect, ac
cording as their action or scope is clear, settled, and 
determinate, or is vague and unfixed. 
Rights are also either in personam or in rem. A right 
in personam is one which imposes an obligation on a 
definite person. A right in rem is one which imposes an 
obligation on persons generally; i.e., either on all the 
world or on all the world except certain determinate 
persons. Thus, if I am entitled to exclude all persons 
from a given piece of land, I have a right in rem in 
respect of that land; and, if there are one or more 
persons, A., B., and C., whom I am not entitled to 
exclude from it, my right is still a right in rem. 
Rights may also be described as either primary or 
secondary. Primary rights are those which can be cre
ated without reference to rights already existing. Sec
ondary rights can only arise for the purpose of protect
ing or enforcing primary rights. They are either pre
ventive (protective) or remedial (reparative). 
Preventive or protective secondary rights exist in order 
to prevent the infringement or loss of primary rights. 
They are judicial when they require the assistance of a 
court of law for their enforcement, and extrajudicial 
when they are capable of being exercised by the party 
himself. Remedial or reparative secondary rights are 
1324 
also either judicial or extrajudicial. They may further 
be divided into (1) rights of restitution or restoration, 
which entitle the person injured to be replaced in his 
original position; (2) rights of enforcement, which en
title the person injured to the performance of an act by 
the person bound; and (3) rights of satisfaction or com
pensation. 
With respect to the ownership of external objects of 
property, rights may be classed as absolute and quali
fied. An absolute right gives to the person in whom it 
inheres the uncontrolled dominion over the object at all 
times and for all purposes. A qualified right gives the 
possessor a right to the object for certain purposes or 
under certain circumstances only. Such is the right of a 
bailee to recover the article bailed when it has been 
unlawfully taken from him by a stranger. 
Rights are also either legal or equitable. The former 
is the case where the person seeking to enforce the right 
for his own benefit has the legal title and a remedy at 
law. The latter are such as are enforceable only in 
equity; as, at the suit of cestui que trust. Procedurally, 
under Rules of Civil Procedure, both legal and equitable 
rights are enforced in the same court under a single 
cause of action. 
Constitutional Rights 
There is also a classification of rights, with respect to 
the constitution of civil society. Thus, according to 
Blackstone, "the rights of persons, considered in their 
natural capacities, are of two sorts,-ab solute and rela
tive; absolute, which are such as appertain and belong 
to particular men, merely as individuals or single per
sons; relative, which are incident to them as members 
of society, and standing in various relations to each 
other." 1 Bl.Comm. 123. 
Rights are also classified in constitutional law as 
natural, civil, and political, to which there is sometimes 
added the class of "personal rights." 
Natural rights are those which grow out of the nature 
of man and depend upon personality, as distinguished 
from such as are created by law and depend upon 
civilized society; or they are those which are plainly 
assured by natural law; or those which, by fair deduc
tion from the present physical, moral, social, and reli
gious characteristics of man, he must be invested with, 
and which he ought to have realized for him in a jural 
society, in order to fulfill the ends to which his nature 
calls him. Such are the rights of life, liberty, privacy, 
and good reputation. 
Civil rights are such as belong to every citizen of the 
state or country, or, in a wider sense, to all its inhab
itants, and are not connected with the organization or 
administration of government. They include the rights 
of property, marriage, equal protection of the laws, 
freedom of contract, trial by jury, etc. Or, as otherwise 
defined, civil rights are rights appertaining to a person 
by virtue of his citizenship in a state or community. 
Such term may also refer, in its very general sense, to 
rights capable of being enforced or redressed in a civil 
action. Also, a term applied to certain rights secured to

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1325 
citizens of the United States by the Thirteenth and 
Fourteenth amendments to the Constitution, and by 
various acts of Congress (e.g. Civil Rights Acts) made in 
pursuance thereof. See Bill of Rights; Civil liberties; Civil 
Rights Acts. 
Political rights consist in the power to participate, 
directly or indirectly, in the establishment or adminis
tration of government, such as the right of citizenship, 
that of suffrage, the right to hold public office, and the 
right of petition. 
Personal rights is a term of rather vague import, but 
generally it may be said to mean the right of personal 
security, comprising those of life, limb, body, health, 
reputation, and the right of pesonal liberty. 
Other Compound and Descriptive Terms 
Bill of rights. See that title. 
Common right. See Common. 
Declaration of rights. See Bill of Rights. 
Exclusive right. See that title. 
Marital rights. See Marital. 
Mere right. In the law of real estate, the mere right of 
property in land; the right of a proprietor, but without 
possession or even the right of possession; the abstract 
right of property. 
Patent right. See Patent. 
Petition of right. See Petition. 
Private rights. Those rights which appertain to a partic
ular individual or individuals, and relate either to the 
person, or to personal or real property. 
Right heir. See Heir. 
Riparian rights. See Riparian. 
Stock rights. See Stock. 
Vested rights. See Vested. 
Right and wrong test. Under this test of criminal 
responsibility, if, at the time of committing an act, the 
party was laboring under such a defect of reason from 
disease of the mind as not to know the nature and 
quality thereof, that he did not know that he was doing 
what was wrong, he should not be held criminally re
sponsible for his act. State v. Wallace, 170 Or. 60, 131 
P.2d 222, 229, 230. See Insanity with respect to other 
criminal responsibility defenses. See also M'Na ghten 
Rule. 
Right in action. This is a phrase frequently used in 
place of chose in action, and having an identical mean
ing. 
Right in court. See Rectus in curia. 
Right of action. The right to bring suit; a legal right to 
maintain an action, growing out of a given transaction 
or state of facts and based thereon. Right of action 
pertains to remedy and relief through judicial proce
dure. Landry v. Acme Flour Mills Co., 202 Okl. 170, 211 
P.2d 512, 515. Right of injured one to secure redress for 
RIGHT OF SUBROGATION 
violation of his rights. Fields v. Synthetic Ropes, Inc., 9 
Storey 135, 215 A.2d 427, 432. A right presently to 
enforce a cause of action by suit. McMahon v. U. S., 
C.A.Pa., 186 F.2d 227, 230. Operative facts giving rise 
to a right of action comprise a "cause of action." Shiflet 
v. Eller, 228 Va. 11 5, 319 S.E.2d 750, 754. Compare 
Cause of action. 
Right of contribution. See Contribution. 
Right of entry. The right of taking or resuming posses
sion of land by entering on it in a peaceable manner. 
Right of first refusal. Right to meet terms of proposed 
contract before it is executed; e.g. right to have first 
opportunity to purchase real estate when such becomes 
available, or right to meet any other offer. The holder 
of such a right has the option to purchase the grantor's 
real estate on the terms and conditions of sale contained 
in a bona fide offer by a third party to purchase such 
real estate, provided it is an offer that the grantor is 
otherwise willing to accept. See also Option. 
Right of local self -government. Power of citizens to 
govern themselves, as to matters purely local in nature, 
through officers of their own selection. City of Ardmore 
v. Excise Board of Carter County, 155 Okl. 126, 8 P.2d 2, 
11. See Home rule. 
Right of possession. Right which may reside in one 
man while another has the actual possession, being the 
right to enter and turn out such actual occupant; e.g., 
the right of a disseisee; right of ejectment or eviction. 
An apparent right of possession is one which may be 
defeated by a better right; an actual right of possession 
is one which will stand the test against all opponents. 
See also Repossession. 
Right of privacy. See Privacy, right of. 
Right of property. The mere right of property in land; 
the abstract right which remains to the owner after he 
has lost the right of possession, and to recover which the 
writ of right was given. United with possession, and the 
right of possession, this right constitutes a complete title 
to lands, tenements, and hereditaments. 
Right of publicity. The right of individual, especially 
public figure or celebrity, to control commercial value 
and exploitation of his name or picture or likeness or to 
prevent others from unfairly appropriating that value 
for their commercial benefit. Presley's Estate v. Rus
sen, D.C.N.J., 513 F.Supp. 1339, 1353. 
Right of redemption. The right to disencumber proper
ty or to free it from a claim or lien; specifically, the 
right (granted by statute only) to free property from the 
encumbrance of a foreclosure or other judicial sale, or to 
recover the title passing thereby, by paying what is due, 
with interest, costs, etc. Not to be confounded with the 
"equity of redemption," which exists independently of 
statute but must be exercised before sale. See also 
Redemption. 
Right of subrogation. The right of a person to substi
tute one person in the place of another, giving the

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RIGHT OF SUBROGATION 
substituted party the same legal rights that the original 
party had. 
Right of survivorship. The right of survivor of a de
ceased person to the property of said deceased. A distin
guishing characteristic of a joint tenancy relationship. 
Upon the death of any joint tenant, the deceased ten
ant's interest passes, not to the tenant's lawfully desig
nated beneficiaries or heirs, but to the surviving joint 
tenants. See also Tenancy (Joint tenancy; Tenancy by 
the entirety). 
Right of way. Term used to describe a right belonging 
to a party to pass over land of another, but it is also 
used to describe that strip of land upon which railroad 
companies construct their road bed, and, when so used, 
the term refers to the land itself, not the right of 
passage over it. Bouche v. Wagner, 206 Or. 621, 293 
P.2d 203, 209. 
As used with reference to right to pass over another's 
land, it is only an easement; and grantee acquires only 
right to a reasonable and usual enjoyment thereof with 
owner of soil retaining rights and benefits of ownership 
consistent with the easement. Minneapolis Athletic 
Club v. Cohler, 287 Minn. 254, 177 N.W.2d 786, 789. See 
also Easement. 
"Right of way" is also used to refer to a preference of 
one of two vehicles, or as between a vehicle and a 
pedestrian, asserting right of passage at the same place 
and time, but it is not an absolute right in the sense that 
possessor thereof is relieved from duty of exercising due 
care for his own safety and that of others. Cheramie v. 
Scott, Tex.Civ.App., 324 S.W.2d 87, 90. With respect to 
intersections, the term has been described as the right of 
one driver to cross before the other; and it has been 
defined by statute as the right of a vehicle to proceed 
uninterruptedly in a lawful manner in the direction in 
which it is moving in preference to another vehicle 
approaching from a different direction into its path. 
The "right-of-way rule" is simply a rule of precedence as 
to which of two users of intersecting highways shall 
have the immediate right of crossing first at an intersec
tion where the users simultaneously approach the inter
section on the intersecting streets so nearly at the same 
time and at such rates of speed that, if they proceed 
without regard to each other, a collision or interference 
between them is reasonably to be apprehended. 
Right patent. An old English writ, which was brought 
for lands and tenements, and not for an advowson, or 
common, and lay only for an estate in fee-simple, and 
not for him who had a lesser estate; as tenant in tail, 
tenant in frank marriage, or tenant for life. 
Rights offering. The sale of new shares of common 
stock by distributing stock purchase rights to a firm's 
existing shareholders. This is also termed a privileged 
subscription. See also Rights, stock. 
Rights, petition of. See Petition. 
Rights, stock. Short term options to purchase shares 
from an issuer at a fixed price. Rights are often issued 
as a substitute for a dividend or as a "sweetener" in 
1326 
connection with the issuance of senior or debt securities. 
Rights are often publicly traded. Compare Warranty. 
See also Rights offeri ng; Stock (Stock rights). 
Right to attorney. See Counsel, right to. 
Right to die laws. Cases and statutes which recognize 
in some instances the right of a dying person to decline 
extraordinary treatment to prolong life, or right of per
son's guardian to request such. Clear and convincing 
proof of patients' wishes is required. See Cruzan v. 
Director, Missouri Dept. of Health, 110 S.Ct. _ (1990). 
See also Death (Natural death acts); Life sustaining 
procedures; Will (Living will). 
Right to know acts. Federal and state legislation re
quiring disclosure by certain businesses (e.g., chemical 
manufacturers) to the public and to workers of informa
tion about hazardous substances in order that such 
persons might learn the full range of / risks they face 
concerning their employment and living conditions. 
Right to redeem. See Right of redemption. 
Right to travel. Basic constitutional right exemplified 
in case of persons applying for welfare assistance in a 
state in which they have not resided for a prescribed 
period of time. It is said that to deny such a right to 
such persons is to inhibit their right to travel and hence 
to deny them equal protection of the law. Shapiro v. 
Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. 
Right to work laws. Such state laws (as permitted by 
Sec. 14(b) of the National Labor Relations Act) that 
provide in general that employees are not to be required 
to join a union as a condition of receiving or retaining a 
job. The wording of these state statutes (existing in 
about 20 states) vary, with some states generally barring 
discrimination in employment so as to encourage union 
membership, others more vaguely barring an employ
ment "monopoly" by a labor union, but most expressly 
barring the requirement of union membership (or pay
ing dues to a union) as a condition of employment. See 
also Open shop. 
Rigor juris /rig;}r jur;}s/. Lat. Strictness of law. Dis
tinguished from gratia curire, favor of the court. 
Rigor mortis /rig;}r mort;}s/. Cadaveric rigidity; a ri
gidity or stiffening of the muscular tissue and joints of 
the body, which sets in at a greater or less interval after 
death, but usually within a few hours, and which is one 
of the recognized tests of death. 
Ring. A clique; an exclusive combination of persons for 
illegitimate or selfish purposes; as to control elections 
or political affairs, distribute offices, obtain contracts, 
control the market or the stock-exchange, engage in 
criminal acts, etc. 
Ringing the changes. A larceny effected by tendering 
a large bill or coin in payment of a small purchase and 
after correct change has been given, asking for other 
change and repeating the request until in the confusion 
of mind created by so many operations, more money is 
obtained than the thief is entitled to.

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1327 
Ringing up. A custom among commISSIon merchants 
and brokers (not unlike the clearing-house system) by 
which they exchange contracts for sale against contracts 
for purchase, or reciprocally cancel such contracts, ad
just differences of price between themselves, and surren
der margins. U. S. v. New York Coffee & Sugar Ex
change, 263 U.S. 611, 44 S.Ct. 225, 226, 68 L.Ed. 475. 
Riot. ·U nlawful assembly which has developed to stage 
of violence. State v. Lustig, 13 N.J.Super. 149, 80 A.2d 
309, 310. The term "riot" means a public disturbance 
involving (1) an act or acts of violence by one or more 
persons part of an assemblage of three or more persons, 
which act or acts shall constitute a clear and present 
danger of, or shall result in, damage or injury to the 
property of any other person or to the person of any 
other individual or (2) a threat or threats of the commis
sion of an act or acts of violence by one or more persons 
part of an assemblage of three or more persons having, 
individually or collectively, the ability of immediate 
execution of such threat or threats, where the perform
ance of the threatened acts or acts of violence would 
constitute a clear and present danger of, or would result 
in, damage or injury to the property of any other person 
or to the person of any other individual. 18 U.S.C.A. 
§ 21 02(a). 
A person is guilty of riot if he participates with two or 
more others in a course of disorderly conduct: (a) with 
purpose to commit or facilitate the commission of a 
felony or misdemeanor; (b) with purpose to prevent or 
coerce official action; or (c) when the actor or any other 
participant to the knowledge of the actor uses or plans 
to use a firearm or other deadly weapon. Model Penal 
Code, § 250.1. 
Inc itement to riot. Incitement to riot is by words or 
conduct urging others to commit acts of force or violence 
against persons or property or to resist the lawful au
thority of law enforcement officers under circumstances 
which produce a clear and present danger of injury to 
persons or property or a breach of the public peace. 
The term "to incite a riot," or "to organize, promote, 
encourage, participate in, or carry on a riot", includes, 
but is not limited to urging or instigating other persons 
to riot, but shall not be deemed to mean the mere oral or 
written (1) advocacy of ideas or (2) expression of belief, 
not involving advocacy of any act or acts of violence or 
assertion of the rightness of, or the right to commit, any 
such act or acts. 18 U.S.C.A. § 21 02(b). 
See also Un lawful assembly. 
Rioter. One who encourages, promotes, or takes part in 
riots. Symonds v. State, 66 Okl.Cr. 49, 89 P.2d 970, 974. 
Riotous assembly. In old English criminal law, the 
unlawful assembling of twelve persons or more, to the 
disturbance of the peace, and not dispersing upon proc
lamation. 4 Bl.Comm. 142. See also Unla wful assembly. 
Riparian /r�periy�n /. Belonging or relating to the bank 
of a river or stream; of or on the bank. Land lying 
beyond the natural watershed of a stream is not "ripari
an." The term is sometimes used as relating to the 
shore of the sea or other tidal water, or of a lake or 
RIPE FOR JUDGMENT 
other considerable body of water not having the charac
ter of a watercourse. But this is not accurate. The 
proper word to be employed in such connections is 
"littoraL" 
Riparian land. Land so situated with respect to a body 
of water that, because of such location, the possessor of 
the land is entitled to the benefits incident to the use of 
the water. Mayer v. Grueber, 29 Wis.2d 168, 138 
N.W.2d 197, 202. Parcel of land which includes therein 
a part of or is bounded by a natural watercourse. 
Thompson v. Enz, 379 Mich. 667, 154 N.W.2d 473, 478. 
See Riparian; Riparian owner. 
Riparian lease. The written instrument setting forth 
the terms, conditions, and the date of expiration of the 
rights to use lands lying between the high water mark 
and the low water mark. 
Riparian owner. One who owns land on bank of river, 
or one who is owner of land along, bordering upon, 
bounded by, fronting upon, abutting or adjacent and 
contiguous to and in contact with river. State ex reI. 
Buckson v. Pennsylvania R. Co., Del.Super., 228 A.2d 
587, 594. 
Riparian proprietor. An owner of land, bounded gener
ally upon a stream or river of water, and as such having 
a qualified property in the soil to the thread of the 
stream or river with the privileges annexed thereto by 
law. Potomac Steamboat Co. v. Upper Potomac Steam
boat Co., 109 U.S. 672, 3 S.Ct. 445, 27 L.Ed. 1070. 
Riparian rights. The rights of the owners of lands on 
the banks of watercourses, relating to the water, its use, 
ownership of soil under the stream, accretions, etc. 
Term is generally defined as the right which every 
person through whose land a natural watercourse runs 
has to benefit of stream as it passes through his land for 
all useful purposes to which it may be applied. People 
ex reI. State Water Resources Control Bd. v. Forni, 54 
Cal.App.3d 743, 126 Cal.Rptr. 851, 857. Such rights 
include those such as hunting, fishing, boating, sailing, 
irrigating, and growing and harvesting wild rice, which 
rights extend over lakes and wetlands. Application of 
Cent. Baptist Theological Seminary, Minn.App., 370 
N.W.2d 642, 646. See also Water (Water rights). 
Riparian water. Water which is below the highest line 
of normal flow of the river or stream, as distinguished 
from flood water. See also Water (Water rights). 
Riparum usus publicus est jure gentium, sicut ipsius 
fluminis /r�per�m yUwz�s p:}bl�k�s est juriy 
jensh(iy)�m, sik�t ipsay�s fluwm�n�s /. The use of river
banks is by the law of nations public, like that of the 
stream itself. 
Ripe for judgment. An action that is so far advanced, 
by verdict, default, confession, the determination of all 
pending motions, or other disposition of preliminary or 
disputed matters, that nothing remains for the court but 
to render the appropriate judgment. A case is ripe for 
decision by an appellate court if the legal issues involved 
are clear enough and well enough evolved and presented 
so that a clear decision can come out of the case.

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RIPE FOR JUDGMENT 
California Water & Tel. Co. v. Los Angeles County, 253 
C.A.2d 16, 61 Cal.Rptr. 618, 623. See also Ripeness 
doctrine. 
Ripeness doctrine. The principle that the federal 
courts require an actual, present controversy, and there
fore will not act when the issue is only hypothetical or 
the existence of a controversy merely speculative. The 
constitutional mandate of case or controversy, U.S. 
Const. Art. III, requires an appellate court to consider 
whether a case has matured or ripened into a controver
sy worthy of ad jUdication before it will determine the 
same. 
The question in each case is whether there is a sub
stantial controversy, between parties having adverse 
legal interests, of sufficient immediacy and reality to 
warrant the issuance of a declaratory judgment. Lake 
Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 
1749, 32 L.Ed.2d 257. 
Basic rationale of "ripeness doctrine" arising out of 
courts' reluctance to apply declaratory judgment and 
injunctive remedies unless administrative determina
tions arise in context of a controversy ripe for judicial 
resolution, is to prevent courts, through avoidance of 
premature adjudication, from entangling themselves in 
abstract disagreements over administrative policies, and 
also to protect the agencies from judicial interference 
until an administrative decision has been formalized 
and its effects felt in a concrete way by the challenging 
parties, and court is required to evaluate both fitness of 
issues for judicial decision and hardship to parties of 
withholding court consideration. Abbott Laboratories v. 
Gardner, 387 U.S. 136, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 
681. 
See Case (Cases and controversies), Final decision rule; 
Justiciable controversy; Standing. 
Rising of court. Properly the final adjournment of the 
court for the term, though the term is also sometimes 
used to express the cessation of judicial business for the 
day or for a recess; it is the opposite of "sitting" or 
"session." This term is generally obsolete. 
Risk. In insurance law, the danger or hazard of a loss of 
the property insured; the casualty contemplated in a 
contract of insurance; the degree of hazard; a specified 
contingency or peril; and, colloquially, the specific 
house, factory, ship, etc., covered by the policy. Hazard, 
danger, peril, exposure to loss, injury, disadvantage or 
destruction, and comprises all elements of danger. 
Knox Jewelry Co., Inc. v. Cincinnati Ins. Co., 130 Ga. 
App. 519, 203 S.E.2d 739, 740. 
In general, the element of uncertainty in an undertak
ing; the possibility that actual future returns will devi
ate from expected returns. Risk may be moral, physical 
or economic. 
Risk of loss in commercial sales contracts as between 
buyer and seller is governed by U.C.C. § 2-509 (e.g., 
financial responsibility for damage or destruction of 
property when transferred between seller and buyer). 
See also Assumption of risk; Ex ship; Incurred risk. 
Obvious risk. See Obvious. 
Ordinary risk. See Ordinary. 
1328 
Risk arbitrage. A strategy employed in takeover situa
tions in which shares of a corporation that is about to be 
taken over are bought, while shares of the acquiring 
corporation that are to be exchanged are sold short or 
on a when-issued basis. 
Risk capital. Money or property invested in a business 
venture, generally in exchange for common stock in a 
business, or capital in a partnership, as distinguished 
from loans or. bonded indebtedness. See also Seed mon
ey; Venture capital. 
Risk capital test. Under this test, for determination of 
whether an investment is a security in the form of an 
investment contract, requires consideration of whether 
funds are being raised for business venture or enter
prise, whether transaction is offered indiscriminately to 
the public at large, whether investors are substantially 
powerless to affect success of enterprise, and whether 
investors' money is substantially at risk because it is 
inadequately secured. Moreland v. Department of Cor
porations, 5 Dist., 194 C.A.3d 506, 239 Cal.Rptr. 558, 566. 
Risk incident to employment. Within worker's com
pensation acts, one growing out of or connected with 
what worker must do in fulfilling his or her contract of 
service, and may be either ordinary risk, directly con
nected with employment, or extraordinary risk indirect
ly connected with employment because of its special 
nature. 
Risk premium. Extra compensation paid to an employ
ee or extra interest paid to a lender, over amounts 
usually considered normal, in return for their undertak
ing to engage in activities more risky than normal. 
River. A natural stream of water, of greater volume 
than a creek or rivulet, flowing in a more or less 
permanent bed or channel, between defined banks or 
walls, with a current which may either be continuous in 
one direction or affected by the ebb and flow of the tide. 
Public river. A river capable in its natural state of 
some useful service to the public because of its existence 
as such, navigability being not the sole test. St. Regis 
Paper Co. v. New Hampshire Water Resources Board, 92 
N.H. 164, 26 A.2d 832, 838. 
River banks. The boundaries which confine the water 
to its channel throughout the entire width when stream 
is carrying its maximum quantity of water. Mammoth 
Gold Dredging Co. v. Forbes, 39 Cal.App.2d 739, 104 P.2d 
131, 137. 
R.L. This abbreviation may stand either for "Revised 
Laws" or "Roman law." 
Road. A highway; an open way or public passage; a 
line of travel or communication extending from one 
town or place to another; a strip of land appropriated 
and used for purposes of travel and communication 
between different places. See also Hig hway. 
In maritime law, an open passage of the sea that 
receives its denomination commonly from some part

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1329 
adjacent, which, though it lie out at sea, yet, in respect 
of the situation of the land adjacent, and the depth and 
wideness of the place, is a safe place for the common 
riding or anchoring of ships. 
Law of the road. Custom or practice which has become 
crystallized into accepted system of rules regulating 
travel on highways. Short v. Robinson, 280 Ky. 707, 134 
S.W.2d 594, 596. It relates to safety of travel, and is 
adjustment of rights of travelers using highway at same 
time. For example, Hlaw of the road" refers to the rule 
which requires that vehicles meeting shall keep to the 
right of the middle of the highway. See also Right of 
way. 
Public road. A highway; a road or way established and 
adopted (or accepted as a dedication) by the proper 
authorities for the use of the general public, and over 
which every person has a right to pass and to use it for 
all purposes of travel or transportation to which it is 
adapted and devoted. The proper test in determining 
whether road is a Hpublic" or Hprivate road" is use to 
which such roadway is put, and fact that road has been 
constructed at public expense is not conclusive. Kitch
ens v. Duffield, 83 Ohio App. 41, 76 N.E.2d 101, 105, 38 
0.0. 142. 
Road districts. Public or quasi municipal corporations 
organized or authorized by statutory authority in many 
of the states for the special purpose of establishing, 
maintaining, and caring for public roads and highways 
within their limits, sometimes invested with powers of 
local taxation, and generally having elective officers 
styled Hoverseers" or Hcommissioners" of roads. 
Rob. To take personalty in possession of another from 
his person or his presence, feloniously and against his 
will, by violence or by putting him in fear. People v. 
Flohr, 30 Cal.App.2d 576, 86 P.2d 862, 864. See Rob
bery. 
Robbery. Felonious taking of money, personal property, 
or any other article of value, in the possession of anoth
er, from his person or immediate presence, and against 
his will, accomplished by means of force or fear. People 
v. Eddy, 123 Cal.App.2d 826, 268 P.2d 47, 51. 
A person is guilty of robbery if, in the course of 
committing a theft, he: (a) inflicts serious bodily injury 
upon another; or (b) threatens another with or purpose
ly puts him in fear of immediate serious bodily injury; 
or (c) commits or threatens immediately to commit any 
felony of the first or second degree. An act shall be 
deemed "in the course of committing a theft" if it occurs 
in an attempt to commit theft or in flight after the 
attempt or commission. Model Penal Code, § 222.1. 
Most jurisdictions today divide robbery, for purposes 
of punishment, into simple robbery and aggravated rob
bery, the principal example of the latter being "armed" 
robbery. 
For various types of federal crimes involving robbery, 
see 18 U.S.C.A. § 2111 et seq. 
See also Assault; Armed robbery; Hobbs Act. Compare 
Burglary; Theft. 
Black's Law Dictionary 6th Ed.-29 
ROLL 
Aggra vated robbery. A robbery committed by a person 
who is armed with a dangerous weapon or who inflicts 
bodily harm upon any person in the course of such 
robbery. See also Armed robbery. 
Highway robbery. The crime of robbery committed upon 
or near a public highway. The felonious and forcible 
taking of property from the person of another on a 
highway. It differs from robbery in general only in the 
place where it is committed. Robbery by hold-up origi
nally applied to the stopping and robbery of traveling 
parties, but the term has acquired a broader meaning. 
It has come to be applied to robbery in general, by the 
use of force or putting in fear. See Hijacking. 
Robinson-Patman Act. Section 2(a) of the Clayton Act, 
as amended in 1936 by the Robinson-Patman Act (15 
U.S.C.A. § 13) makes it unlawful for any seller engaged 
in commerce to directly or indirectly discriminate in the 
price charged purchasers on the sale of commodities of 
like grade and quality where the effect may be to injure, 
destroy or prevent competition with any person who 
grants or knowingly receives a discrimination, or the 
customer of either. See also Price discrimination. 
Rod. A lineal measure of 5% yards or 16% feet; other
wise called a "perch." See also Land measure. 
Rogationes, qurestiones, et positiones debent esse 
simplices Ir�geyshiyowniyz kwest(i)yowniyz et p�zi
shiyowniyz deb�nt esiy simpl�siyz /. Demands, ques
tions, and claims ought to be simple. 
Rogatio testium Ir�geysh(iy)ow test(i)y� m/. This in 
making a nuncupative will, is where the testator formal
ly calls upon the persons present to bear witness that he 
has declared his will. 
Rogator Ir�gey t�r/. Lat. In Roman law, the proposer 
of a law or rogation. 
Rogatory letters Irog�toriy let�rz /. A commission from 
one judge to another in a foreign country requesting him 
to examine a witness. See Fed.R.Civil P. 28(b); 28 
U.S.C.A. § 1781. See also Letters rogatory. 
Rogo Irowgow /. Lat. In Roman law, I ask; I request. 
A precatory expression often used in wills. 
Rogue Irow g/. An idle and disorderly person; a trick
ster; a wandering beggar; a vagrant or vagabond; a 
scoundrel. 4 Bl.Comm. 169. 
Roll, n. Record of the proceedings of a court or public 
office. See Judgment roll, below. 
A register; list of persons belonging to particular 
group. See also Roster. 
In taxation, the list or record of taxable persons and 
property, as compiled by assessors. See Tax roll, below. 
Judgment roll. Such is required to be filed in certain 
states by the clerk when he enters judgment. It normal
ly contains the summons, pleadings, admissions, and 
each judgment and each order involving the merits or 
necessarily affecting the final judgment. New York 
C.P.L.R. § 5017. In the federal and most state courts,

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ROLL 
judgments are recorded in the "civil docket" (Fed.R.Civil 
P. 79) or " criminal docket" (Fed.R.Crim.P. 55). 
In old English practice, a roll of parchment containing 
the entries of the proceedings in an action at law to the 
entry of judgment inclusive, and which was filed in the 
treasury of the court. 
Tax roll. A schedule or list of the persons and property 
subject to the payment of a particular tax, with the 
amounts severally due, prepared and authenticated in 
proper form to warrant the collecting officers to proceed 
with the enforcement of the tax. 
Roll, v. To rob by force. 
Rolling over. Banking term for extension or renewal of 
short term loan from one loan period (e.g. 90 day) to 
another. See also Roll- over paper. 
Term also refers to transfer or reinvestment of funds 
from one type of investment to another (e.g. from one 
type of IRA fund to another). 
Roll-over paper. Short term notes which may be ex
tended (rolled over) or converted to installment, pay
ments, after the initial due date. 
Roman Catholic Church. The juristic personality of 
the Roman Catholic Church, with the right to sue and to 
take and hold property has been recognized by all sys
tems of European law from the fourth century. It was 
formally recognized between Spain and the Papacy and 
by Spanish laws from the beginning of the settlements 
in the Indies, also by our treaty with Spain in 1898, 
whereby its property rights were solemnly safeguarded. 
Municipality of Ponce v. Roman Catholic Church in 
Porto Rico, 210 U.S. 296, 28 S.Ct. 737, 52 L.Ed. 1068; 
Santos v. Roman Catholic Church, 212 U.S. 463, 29 S.Ct. 
338, 53 L.Ed. 599. 
Roman law. In a general sense, comprehends all the 
laws which prevailed among the Romans, without re
gard to the time of their origin, including the collections 
of Justinian. In a more restricted sense, the Germans 
understand by this term merely the law of Justinian, as 
adopted by them. 
In England and America, it appears to be customary 
to use the phrase, indifferently with "the civil law," to 
designate the whole system of Roman jurisprudence, 
including the Corpus Juris Civilis; or, if any distinction 
is drawn, the expression "civil law" denotes the system 
of jurisprudence obtaining in those countries of conti
nental Europe which have derived their juridical notions 
and principles from the Justinian collection, while "Ro
man law" is reserved as the proper appellation of the 
body of law developed under the government of Rome 
from the earliest times to the fall of the empire. See 
Civil law. 
Rood of land Iruwd �v lrend/. The fourth part of an 
acre in square measure, or one thousand two hundred 
and ten square yards. 
Roo mer. A lodger; one who rents a room or rooms. 
Root of des cent. The same as "stock of descent." 
1330 
Root of title. The document with which an abstract of 
title properly commences. 
ROR. See Release on own recognizance. 
Rorschach test Irorshrek test/. Projective method of 
determining the structure of personality by noting the 
patient's reaction to a set of ten cards containing stan
dardized ink blots; used in detecting neurotic and psy
chotic traits. 
Roster Irost�r /. A roll or list of persons. A list of 
persons who are to perform certain duties when called 
upon in their turn. 
Rota Irowt� /. L. Lat. Succession; rotation; e.g. "Rota 
of presentations;" "rota of the terms." 
Rotten clause. A clause sometimes inserted in policies 
of marine insurance to the effect that "if, on a regular 
survey, the ship shall be declared unseaworthy by rea
son of being rotten or unsound," the insurers shall be 
discharged. 
Round lot. Standard unit of trading on N.Y. Stock 
Exchange. For stocks, it is 100 shares; for bonds, $1000 
or $5000 par value. Compare Odd lot. 
Route. Course, or line of travel from one place to 
another. Cities or towns between which (formerly) com
mon carriers or airlines were permitted by I.C.C., C.A.B., 
etc. to carry goods or passengers. 
In railroad parlance, a designated course over a way 
or right of way, irrespective of the singleness or multi
plicity of operation thereon. Regenhardt Const. Co. v. 
Southern Ry. in Kentucky, 297 Ky. 840, 181 S.W.2d 441, 
444. 
Routously. In old pleading, a technical word in indict
ments, generally coupled with the word "riotously." 
Roy Iroy/rey/rwa/. L. Fr. The king. 
Royal. Of or pertaining to or proceeding from the king 
or sovereign in a monarchical government. 
Royal prerogative. Those rights and capacities which 
the king enjoys alone in contradistinction to others and 
not to those which he enjoys in common with any of his 
subjects. It is that special pre-eminence which the 
sovereign has over all other persons, and out of the 
course of the common law by right of regal dignity. 
lEtna Casualty & Surety Co. v. Bramwell, D.C.Or., 12 
F.2d 307, 309. 
Royalty. Compensation for the use of property, usually 
copyrighted material or natural resources, expressed as 
a percentage of receipts from using the property or as an 
account per unit produced. A payment which is made 
to an author or composer by an assignee, licensee or 
copyright holder in respect of each copy of his work 
which is sold, or to an inventor in respect of each article 
sold under the patent. Royalty is share of product or 
profit reserved by owner for permitting another to use 
the property. Alamo Nat. Bank of San Antonio v. Hurd, 
Tex.Civ.App., 485 S.W.2d 335, 338. 
As used in instruments in connection with production 
of minerals (e.g., oil and gas leases) means in its popular

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1331 
sense a share of products or proceeds therefrom, re
served to owner of land for permitting another to use 
the property. Barry v. Frizzell, Okl., 371 P.2d 460, 464. 
In patent law, signifies sums paid to owner of a patent 
for its use or for the right to operate under it, and may 
also refer to obligation giving rise to the right to such 
sums. Taylor v. Peck, 160 Ohio St. 288, 11 6 N.E.2d 417, 
418. 
See also Min imum royalty clause; Overriding royalty; 
Shut-in royalty. 
Reasonable royalty. Under patent law, a "reasonable 
royalty" is that amount which the trier of facts esti
mates a person desiring to use a patent right would be 
willing to pay for its use and a patent owner desiring to 
license the patent would be willing to accept. Universi
ty Computing Co. v. Lykes-Youngstown Corp., C.A.Ga., 
504 F.2d 518, 538. 
Overriding royalty. A retained royalty by a lessee when 
the property is subleased. Common in oil and gas 
leases. 
Royalty acres. That part of the oil that goes to land
owner, whether it be in place or after production. Dick
ens v. Tisdale, 204 Ark. 838, 164 S.W.2d 990, 992. 
Royalty bonus. The consideration for oil and gas lease 
over and above the usual royalty. Sheppard v. Stano
lind Oil & Gas Co., Tex.Civ.App., 125 S.W.2d 643, 648. 
Roy est l'original de touts franchises. The king is the 
origin of all franchises. 
Roy n'est lie per ascun statute si il ne soit express
ment nosme. The king is not bound by any statute, 
unless expressly named. 
Roy poet dispenser ove malum prohibitum, mais non 
malum per see The king can grant a dispensation for a 
malum prohibitum, but not for a malum per se. 
R.S. An abbreviation for "Revised Statutes." 
Rubber check. Slang for a check which has been re
turned by the drawee bank because of insufficient funds 
in the account of the drawer. 
Rudeness. Roughness; incivility; violence. Touching 
another with rudeness may constitute a battery. 
Rule, v. To command or require by a rule of court; as, 
to rule the sheriff to return the writ, to rule the defen
dant to plead, to rule against an objection to evidence. 
To settle or decide a point of law arising upon a trial, 
and, when it is said of a judge presiding at such a trial 
that he "ruled" so and so, it is meant that he laid down, 
settled, or decided such and such to be the law. 
Rule, n. An established standard, guide, or regulation. 
Prescribed guide for conduct or action, regulation or 
principle. State ex reI. Villines v. Freeman, Okl., 370 
P.2d 307, 309. A principle or regulation set up by 
authority, prescribing or directing action or forbearance; 
as, the rules of a legislative body, of a company, court, 
public office, of the law, of ethics. Precept attaching a 
definite detailed legal consequence to a definite detailed 
state of facts. 
RULE 
An order made by a court, at the instance of one of 
the parties to a suit, commanding a ministerial officer, 
or the opposite party, to do some act, or to show cause 
why some act should not be done. It is usually upon 
some interlocutory matter. See also Decree; Order. 
For purposes of the Administrative Procedure Act, 
includes each agency statement of general or particular 
applicability and future effect that implements, inter
prets, or prescribes law or policy. Vega v. National 
Union Fire Ins. Co. of Pittsburgh, Pa., Inc., 67 Haw. 148, 
682 P.2d 73, 78. 
A rule of law. Thus, we speak of the rule against 
perpetuities; the Rule in Shelley's Case, etc. See also 
Rule of law, below. 
Rule absolute. One which commands the SUbject-matter 
of the rule to be forthwith enforced. It is common, for 
example, when the party has failed to show sufficient 
cause against a rule nisi, to "make the rule absolute," 
i.e., imperative and final. 
Rule against perpetuities. Principle that no interest in 
property is good unless it must vest, if at all, not later 
than 21 years, plus period of gestation, after some life or 
lives in being at time of creation of interest. Perkins v. 
Iglehart, 183 Md. 520, 39 A.2d 672, 676; St. Louis Union 
Trust Co. v. Bassett, 337 Mo. 604, 85 S.W.2d 569, 575. 
The "rule against perpetuities" prohibits the granting of 
an estate which will not necessarily vest within a time 
limited by a life or lives then in being and 21 years 
thereafter together with the period of gestation neces
sary to cover cases of posthumous birth. Nelson v. 
Mercantile Trust Co., Mo., 335 S.W.2d 167, 172. 
This common law rule or principle has been modified 
by statute in certain states; e.g. under some statutes an 
inquiry may be made as to whether the gift did vest in 
fact within the period. If it actually vested, it will be 
upheld. Under original rule, the inquiry was whether it 
must vest by its terms. See e.g. M.G.L.A. c. 184A 
(Mass.). 
See also Perpetuity. 
Rule in Shelley's Case. See Shelley's Case, Rule in. 
Rule nisi. A rule which will become imperative and 
final unless cause be shown against it. This rule com
mands the party to show cause why he should not be 
compelled to do the act required, or why the object of 
the rule should not be enforced. An ex parte order 
directing the other party to show cause why such a 
temporary order should not become permanent. 
Rule of apportionment. Rule that, where subdivided 
tract contains more or less than aggregate amount 
called for, excess or deficiency is apportioned among 
several tracts. 
Rule of four. Working rule devised by Supreme Court 
for determining if a case is deserving of review; the 
theory being that if four justices find that a legal ques
tion of general importance is raised, that is ample proof 
that the question has such importance. Rogers v. Mis
souri Pac. R. Co., Ill., 352 U.S. 521, 77 S.Ct. 459, 478, 1 
L.Ed.2d 515.

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RULE 
Rule of law. A legal principle, of general application, 
sanctioned by the recognition of authorities, and usually 
expressed in the form of a maxim or logical proposition. 
Called a "rule," because in doubtful or unforeseen cases 
it is a guide or norm for their decision. The rule of law, 
sometimes called "the supremacy of law", provides that 
decisions should be made by the application of known 
principles or laws without the intervention of discretion 
in their application. See e.g. Rule against perpetuities, 
above; also, Shelley's Case, Rule in. See also Stare 
decisis. 
Rule of lenity. Where the intention of Congress is not 
clear from the act itself and reasonable minds might 
differ as to its intention, the court will adopt the less 
harsh meaning. U. S. v. Callanan, D.C.Mo., 173 F.Supp. 
98, 100. The judicial doctrine by which courts decline to 
interpret criminal statutes so as to increase penalty 
imposed, absent clear evidence of legislative intent to do 
otherwise; in other words, where there is ambiguity in a 
criminal statute, doubts are resolved in favor of defen
dant. State v. Stephens, 22 Wash.App. 548, 591 P.2d 
827, 832. Under "rule of lenity," statute establishing 
penalty which is susceptible of more than one meaning 
should be construed so as to provide most lenient penal
ty. State v. Andrews, Alaska App., 707 P.2d 900, 907. 
Rule of necessity. While a judge should disqualify him
self when called upon to decide a matter in which he has 
a direct interest, if he is the only judge with power to 
hear and determine the matter, the rule of necessity 
requires that he hear it. Evans v. Gore, 253 U.S. 245, 40 
S.Ct. 550, 64 L.Ed. 887. 
Rule of presumption. Rule changes one of burdens of 
proof, that is, it declares that main fact will be inferred 
or assumed from some other fact until evidence to 
contrary is introduced. Barrett v. U. S., c.A.Ga., 322 
F.2d 292, 294. See Presumption. 
Rule of reason. Under "rule of reason" test for deter
mining whether alleged acts violated § 1 of the Sher
man Anti-Trust Act [15 U.S.C.A. § 1], which declares 
conspiracies in restraint of trade to be illegal, fact finder 
must weigh all circumstances of the case to decide 
whether practice unreasonably restrains competition, 
and the test requires that plaintiff show anticompetitive 
effects, or actual harm to competition, and not whether 
the practices were unfair or tortious. Richard Hoffman 
Corp. v. Integrated Bldg. Systems, D.C.Ill., 610 F.Supp. 
19, 22. Under the "rule of reason" in antitrust law the 
legality of restraints on trade is determined by weighing 
all the factors of the case such as the history of the 
restraint, the evil believed to exist, the reason for adopt
ing the particular remedy and the purpose or end sought 
to be attained. U. S. v. National Soc. of Professional 
Engineers, D.C.D.C., 404 F.Supp. 457, 463. 
To constitute a crime under § 1 of the Sherman 
Antitrust Act, the defendant's conduct must result in an 
unreasonable restraint of interstate commerce. It is for 
the jury to determine from a consideration of all the 
facts and circumstances, including the economic condi
tions of the industry and the effect on competition, 
1332 
whether defendants' conduct creates an unreasonable 
restraint on interstate commerce. Standard Oil Co. v. 
United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; 
Best Advertising Corp. v. Illinois Bell TeL Co., C.A.IlL, 
339 F.2d 1009; Walker Process Equipment, Inc. v. Food 
Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 
15 L.Ed.2d 247. The "rule of reason" test is not how
ever applied in instances of per se antitrust violations; 
e.g. price-fixing. Compare Per se doctrine; Per se viola
tions. 
Rule of road. See Right of way; Road. 
Rule to show cause. A rule commanding the party to 
appear and show cause why he should not be compelled 
to do the act required, or why the object of the rule 
should not be enforced; a rule nisi (q.v.). See Show 
cause order. 
Rulemaking power. Congress has from time to time 
conferred upon the Supreme Court power to prescribe 
rules of procedure to be followed by the lower trial and 
appellate courts of the United States. Pursuant to these 
statutes (28 U.S.C.A. §§ 2071-2075, re Civil, Criminal, 
Appellate, Bankruptcy, Evidence Rules) there are now 
in force rules promulgated by the Court to govern civil 
and criminal cases in the district courts, bankruptcy 
courts, courts of appeals, and proceedings before U.S. 
magistrates. Certain other federal courts are empow
ered to enact their own rules of court (e.g., Tax Court, 26 
U.S.C.A. § 7453). See also Rules Enabling Act of 19 34. 
Rule of 72. Used to determine number of years it will 
take to double money when earning compound interest 
(interest rate paid on principal is divided into 72). 
Rule of 78. Method of computing refunds of unearned 
finance charges on early payment of loan so that refund 
is proportional to the monthly unpaid balance. 78 is the 
sum of the digits of one to twelve, i.e., the number of 
months in a one-year installment contract. 
Rules Enabling Act of 1934. A federal statute that 
delegated comprehensive procedural rulemaking power 
to the Supreme Court and resulted in the Federal Rules 
of Civil Procedure. The statute is now, with slight 
changes, 28 U.S.C.A. § 2072. 
Rules of Appellate Procedure. Federal Rules of Appel
late Procedure govern procedure in appeals from the 
U.S. district courts and Tax Court to the U.S. Courts of 
AppeaL Fed.R.App.P. l(a). In states which have 
adopted similar rules, they govern appeal procedure 
from the trial court to appellate courts. See Federal 
Rules of Appel late Procedure. 
Rules of Civil Procedure. Federal Rules of Civil Proce
dure govern procedure in the U.S. district courts in all 
suits of a civil nature whether cognizable as cases at law 
or in equity or in admiralty with some exceptions. 
Fed.R.Civil P. 1. Such Rules also govern adversary 
proceedings in federal bankruptcy courts. Many states 
have adopted similar rules which track the Federal 
Rules. See Federal Rules of Civil Procedure; Rules En
abling Act of 19 34.

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1333 
Rules of court. Such regulate practice and procedure 
before the various courts; e.g. Rules of Civil, Criminal, 
or Appellate Procedure; Rules of Evidence. In most 
jurisdictions, these rules are issued by the court itself, or 
by the highest court in that jurisdiction, while in others, 
such are adopted or enacted by the legislature. See also 
Court rule; Rulemaking power. 
Rules of Criminal Procedure. Federal Rules of Crimi
nal Procedure govern the procedure in all criminal 
proceedings in the U.S. district courts of the United 
States, including preliminary, supplementary, and spe
cial proceedings before U.S. magistrates. Fed.R.Crim.P. 
1. Many states have adopted similar rules which track 
the Federal Rules. See Federal Rules of Criminal Proce
dure. 
Rules of Decision Act. Section 34 of the Judiciary Act 
of 1789-the famous Rules of Decision Act-provided 
that "the laws of the several states, except where the 
constitution, treaties, or statutes of the United States 
shall otherwise require or provide, shall be regarded as 
rules of decision in trials at common law in the courts of 
the United States in cases where they apply." The 
statute has remained substantially unchanged to this 
day. See 28 U.S.C.A. § 1652. 
Rules of Evidence. Rules of court which govern the 
admissibility of evidence at trials and hearings; e.g. 
Federal Rules of Evidence (applicable in U.S. district 
courts and federal bankruptcy courts); Uniform Rules of 
Evidence; Maine Rules of Evidence; California Evi
dence Code. See Federal Rules of Evidence. 
Rules of navigation. See Navigation. 
Rules of Professional Conduct. The Model Rules of 
Professional Conduct of the American Bar Association 
set standards for such matters as client-lawyer relation
ships, fees, conflict of interest, role of lawyer as counsel
or and advocate, transactions with persons other than 
clients, responsibilities of law firms and associations, 
public service, and dissemination of information about 
legal services (including advertising). Such Rules re
placed the former ABA Code of Professional Responsibil
ity. 
Rule lO1:Hi. This Rule of the Securities and Exchange 
Commission makes it unlawful, in connection with the 
purchase or sale of any security, to make any untrue 
statement of a material fact or to omit to state a 
material fact necessary in order to make the statements 
made, in the light of circumstances under which they 
were made, not misleading. See also Sec. 10(b) of the 
Securities Exchange Act, 15 U.S.C.A. § 78G)(b). See also 
Insider; Material fact. 
Ruling. A judicial or administrative interpretation of a 
provision of a statute, order, regulation, or ordinance; 
e.g. Revenue Rulings. May also refer to judicial deter
mination of admissibility of evidence, allowance of mo
tion, etc. See also Decree; Order; Rule. 
Rumor. A current story passing from one person to 
another without any known authority for the truth of it. 
Such are not generally admissible in evidence. 
RUNNING WITH THE REVERSION 
Run, v. To have currency or legal validity in a pre
scribed territory; as, the writ runs throughout the coun
ty. 
To have applicability or legal effect during a pre
scribed period of time; as, the statute of limitations has 
run against the claim. 
To follow or accompany; to be attached to another 
thing in pursuing a prescribed course or direction; as, 
the covenant runs with the land. 
To conduct, manage, carry on. 
Run, n. A watercourse of small size. In business, a 
continuous round of manufacturing. In banking, a 
widespread and sudden withdrawal of deposits from a 
bank because of fear of the bank's collapse. 
Runaway shop. An employer who moves his business 
to another location or temporarily closes his business for 
anti-union purposes. 
Runner. Person who solicits business for attorney from 
accident victims. Also means a person employed by a 
bail bondsman for the purpose of assisting the bail 
bondsman in presenting the defendant in court when 
required, or to assist in apprehension and surrender of 
defendant to the court, or keeping defendant under 
necessary surveillance, or to execute bonds on behalf of 
the licensed bondsman when the power of attorney has 
been duly recorded. See also Ambulance chaser. 
Running account. An open unsettled account, as dis
tinguished from a stated and liquidated account. Run
ning accounts mean mutual accounts and reciprocal 
demands between the parties, which accounts and de
mands remain open and unsettled. See also Charge 
account; Revolving credit. 
Running at large. Refers to candidate for public office 
who seeks election from entire town or city and not just 
from one ward or district. Term is also applied to 
wandering or straying animals. 
Running days. Days counted in their regular succes
sion on the calendar, including Sundays and holidays. 
Running of the statute of limitations. A metaphorical 
expression, by which is meant that the time specified 
in the statute of limitations is considered as having 
passed and hence the action is barred. United States v. 
Markowitz, D.C.Cal., 34 F.Supp. 827, 829. 
Running policy. One which contemplates successive 
insurances, and which provides that the object of the 
policy may be from time to time defined, especially as to 
the subjects of insurance, by additional statements or 
indorsements. 
Running with the land. Prase referring generally to 
covenants that pass with transfer of the land. A cove
nant is said to run with the land when either the 
liability to perform it or the right to take advantage of it 
passes to the assignee of that land. Usually concerned 
with easements and covenants. 
Running with the reversion. A covenant is said to run 
with the reversion when either the liability to perform it

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s
S. As an abbreviation, this letter stands for Usection,"
Ustatute," and various other words of which it is the
initial.
8-1. A form that must be filed with the Securities and
Exchange Commission before a company's securities
may be listed and traded on a national securities ex
change. See Registration of securities.
Sabbath. One of the names of the first day of the week;
more properly called USunday" (q.v.). The day of rest
and religious worship. Named in the Ten Command
ments as Saturday, the seventh day, and observed there
on by the Jews and some Christian sects; but observed
on Sunday, the first day, by most Christian churches.
Sabbath-breaking. The offense of violating the laws
prescribed for the observance of Sunday; i.e. violation of
Sunday closing laws (Blue-laws).
Sabotage I sreb::ltazhl . Term has reference to the wilful
destruction or injury of, or defective production of, war
material or national-defense material, or harm to war
premises or war utilities. 18 U.S.C.A. § 2151 et seq.
Term also refers to wilful and malicious destruction of
employer's property during a labor dispute or interfer
ence with his normal operations. Burns v. U. S., 274
U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077.
Sac Isrek/. In old English law, a liberty of holding pleas;
the jurisdiction of a manor court; the privilege claimed
by a lord of trying actions of trespass between his
tenants, in his manor court, and imposing fines and
amerciaments in the same.
Sacaburth, sacabere, sakabere Isrek::lb;)r(O)/. In old
English law, he that was robbed, or by theft deprived of
his money or goods, and put in surety to prosecute the
felon with fresh suit.
Saccabor Isrek::lb::lr/. In old English law, the person
from whom a thing had been stolen, and by whom the
thief was freshly pursued.
Sacramentales Isrekr::lm::lnteyliyz/. L. Lat. In feudal
law, compurgators; persons who came to purge a defen
dant by their oath that they believed him innocent.
Sacramentum I srekr::lment::lm/. Lat. Common law. An
oath.
Roman law. An oath, as being a very sacred thing;
more particularly, the oath taken by soldiers to be true
dence, the sacramentum was a sum of money deposited
in court by each of the litigating parties, as a kind of
wager or forfeit, to abide the result of the suit. The
successful party received back his stake; the losing
party forfeited his, and it was paid into the public
treasury, to be expended for sacred objects (in sacris
rebus), whence the name.
Sacramentum decisionis I srekr::lment::lm d::lsizhiy-
6wn::ls/. The voluntary or decisive oath of the civil law,
where one of the parties to a suit, not being able to
prove his case, offers to refer the decision of the cause to
the oath of his adversary, who is bound to accept or
make the same offer on his part, or the whole is con
sidered as confessed by him.
Sacramentum fidelitatis I srekr::lment::lm f::ldel::lteyt::ls/.
In old English law, the oath of fealty.
Sacramentum habet in se tres comites,-veritatem,
justitiam, et judicium; veritas habenda est in jurato;
justitia et justicium in judice. An oath has in it three
component parts,-truth, justice, and judgment; truth
in the party swearing; justice and judgment in the judge
administering the oath.
Sacramentum si fatuum fuerit, licet falsum, tamen
non committit perjurium Isrekr::lment::lm say
fretyuw::lm f(y)uw::lr::lt, lilys::lt f61s::lm, trem::ln non k::lmit::lt
p::lrjuriY::lmI . A foolish oath, though false, makes not
perjury.
Sacrilege I srekr::ll::lj I . In old English criminal law, larce
ny from a church. The crime of breaking a church or
chapel, and stealing therein. The desecration of any
thing considered holy; the alienation to lay-men or to
profane or common purposes of what was given to reli
gious persons and to pious uses.
Sacrilegium Isrekr::lliyj(iY)::lm/. Lat. In the civil law,
the stealing of sacred things, or things dedicated to
sacred uses; the taking of things out of a holy place.
Sacrilegus I s::lkril::lg::lsl . Lat. In the civil and common
law, a sacrilegious person; one guilty of sacrilege.
Sacrilegus omnium prredonum cupiditatem et scelera
superat I s::lkribg::ls 6mn(i)Y::lm pr::ld6wn::lm
kyuwpid::lteyt::lm et sel::lr::l s(y)uwp::lr::lt/. A sacrilegious
person transcends the cupidity and wickedness of all
other robbers.
to their general and their country. Sacristan Isrekr::lst::ln/. A sexton, anciently called "sag-
In one of the formal methods of beginning an action at erson ': or "sagiston ': the keeper of things belonging to
law (legis actiones) known to the early Roman jurispru- divine worship.
1335

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SADISM 
Sadism /seydiz;)m/sredo /. A form of satisfaction, com
monly sexual, derived from inflicting harm on another. 
It is a type of mental disease or disorder. The opposite 
of masochism (q. v.). 
Sremend. In old English law, an umpire, or arbitrator. 
Srepe constitutum est, res inter alios judicatas allis 
non prrejudicare /siypiy konst;)t(y)uwt;)m est riyz int;)r 
eyl(i)yows juwd;)keyt;)s eyliy;)s non pr;)juwd;)keriy /. It 
has often been settled that matters adjudged between 
others ought not to prejudice those who were not par
ties. 
Srepenumero ubi proprietas verborum attenditur, 
sensus veritatis amittitur /siypiymim;)row yuwbay 
pr;)pniy;)tres v;)rb6r;)m ;)tend;)t;)r sens;)s vehr;)teyd;)s 
;)mit;)t;)r/. Oftentimes where the propriety of words is 
attended to,. the true sense is lost. 
Srevitia /s;)vish(iy);)/. Lat. In the law of divorce, cruel
ty; anything which tends to bodily harm, and in that 
manner renders cohabitation unsafe. 
Safe. A metal receptacle for the preservation of valu
ables. Untouched by danger; not exposed to danger; 
secure from danger, harm or loss. 
One of the papers usually carried by vessels in time of 
war, and necessary to the safety of neutral merchant
men. It is in the nature of a license to the vessel to 
proceed on a designated voyage, and commonly contains 
the name of the master, the name, description, and 
nationality of the ship, the voyage intended, and other 
matters. A distinction is sometimes made between a 
passport, conferring a general permission to travel in 
the territory belonging to, or occupied by, the belliger
ent, and a safe-conduct, conferring permission upon an 
enemy subject or others to proceed to a particular place 
for a defined object. 
Safe deposit box. A metal container kept by a custom
er in a bank in which he deposits papers, securities and 
other valuable items. Generally, there are two keys 
required to open, one retained by the bank and the other 
by the customer. 
Safe deposit company. A company which maintains 
vaults for the deposit and safe-keeping of valuables in 
which compartments or boxes are rented to customers 
who have exclusive access thereto, subject to the over
sight and under the rules and regulations of the compa
ny. See Depository; Safe deposit box. 
Safe Harbor rule. A provision in the tax code which 
gives a taxpayer protection as long as efforts were made 
to comply with the law. An example would be with 
estimated taxes. If an individual pays 100% of their 
prior year tax liability in estimated installments, they 
may avoid the underpayment penalty. 
Safe limit of speed. As regards limitation on speed of 
automobiles at crossings, the limit at which one may 
discern an approaching train and stop before he is in the 
danger zone. Horton v. New York Cent. R. Co., 205 
App.Div. 763, 200 N.Y.S. 365, 366. 
1336 
Safe place to work. In the law of master and servant 
(employer and employee), a place in which the master 
has eliminated all danger which in the exercise of rea
sonable care the master should remove or guard against. 
Master's duty to provide a "safe place" to work includes 
places to and from which the employee might be re
quired or expected to go. High Splint Coal Co. v. Ra
mey's Adm'x., 271 Ky. 532, 112 S.W.2d 1007, 1008. 
Federal, state, and local regulations and regulatory 
bodies require health and safety standards for workers. 
See e.g. Occupational Safety and Health Act. 
Safety Appliance Act. Federal Act regulating safety of 
equipment used by common carriers engaged in inter
state commerce. 45 U .S.C.A. § 1 et seq. 
Sagibaro /sreg;)brerow/. In old European law, a judge or 
justice; literally, a man of causes, or having charge or 
supervision of causes. One who administered justice 
and decided causes in the mallum, or public assembly. 
Said. Before mentioned. This word is frequently used 
in contracts, pleadings, and other legal papers, with the 
same force as "aforesaid." Greeley Nat. Bank v. Wolf, 
C.C.A.Colo., 4 F.2d 67, 69. 
Sail. To put to sea; to begin a voyage. To get ship 
under way in complete readiness for voyage, with pur
pose of proceeding without further delay. 
Sailors. Seamen; mariners. 
Sailors' Relief Act. See Soldiers' and Sailors' Civil Relief 
Act. 
Sailors' will. A nuncupative or oral will which the law 
allows in the case of a sailor at sea. It has the power to 
pass personal property at death but not real estate. See 
also Nuncupative will. 
Saisie /seyziy/. Fr. In French law, a judicial seizure or 
sequestration of property, of which there are several 
varieties. See terms next following for various types of 
such seizure. 
Saisie-arret. An attachment of property in the posses
sion of a third person. 
Saisie-execution. A writ resembling that of fieri facias; 
defined as that species of execution by which a creditor 
places under the hand of justice (custody of the law) his 
debtor's movable property liable to seizure, in order to 
have it sold, so that he may obtain payment of his debt 
out of the proceeds. 
Saisie-foraine. A permission given by the proper judi
cial officer to authorize a cred�tor to seize the property 
of his debtor in the district which the former inhabits. 
It has the effect of an attachment of property, which is 
applied to the payment of the debt due. 
Saisie-gagerie. A conservatory act of execution, by 
which the owner or principal lessor of a house or farm 
causes the furniture of the house or farm leased, and on 
which he has a lien, to be seized; similar to the distress 
of the common law. 
Saisie-immobiliere. The proceeding by which a creditor 
places under the hand of justice (custody of the law) the

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1337 
immovable property of his debtor, in order that the 
same may be sold, and that he may obtain payment of 
his debt out of the proceeds. 
Sake. In old English law, a lord's right of amercing his 
tenants in his court. 
Acquittance of suit at county courts and hundred 
courts. 
Salable. Merchantable; fit for sale in usual course of 
trade, at usual selling prices. See Marketable title; Mer
chantability . 
Salable value. Usual selling price at place where prop
erty is situated when its value is to be ascertained. Fort 
Worth & D. N. Ry. Co. v. Sugg, Tex.Civ.App ., 68 S.W.2d 
570, 572. See also Value. 
Salarium /s�leriy�m/. Lat. In the civil law, an allow
ance of provisions. A stipend, wages, or compensation 
for services. An annual allowance or compensation. 
Salary. A reward or recompense for services performed. 
In a more limited sense, a fixed periodical compensation 
paid for services rendered. A stated compensation paid 
periodically as by the year, month, or other fixed period, 
in contrast to wages which are normally based on an 
hourly rate. See also Fixed salary; Wages. 
Sale. A contract between two parties, called, respective
ly, the "seller" (or vendor) and the "buyer" (or purchas
er), by which the former, in consideration of the pay
ment or promise of payment of a certain price in money, 
transfers to the latter the title and the possession of 
property. Transfer of property as providing of services 
for consideration. A transfer of property for a fixed 
price in money or its equivalent. Grinnell Corp. v. U.S., 
390 F.2d 932, 945, 947, 182 Ct.Cl. 702. Passing of title 
from seller to buyer for a price. U.C.C. § 2--106(1). 
A revenue transaction where goods or services are 
delivered to a customer in return for cash or a contrac
tual obligation to pay. Term comprehends transfer of 
property from one party to another for valuable recom
pense. Herskovitz v. Vespico, 238 Pa.Super. 529, 362 
A.2d 394, 396. 
The general law governing the sale of goods is the 
Uniform Commercial Code (Art. 2). 
A contract whereby property is transferred from one 
person to another for a consideration of value, implying 
the passing of the general and absolute title, as distin
guished from a special interest falling short of complete 
ownership. 
To constitute a "sale," there must be parties standing 
to each other in the relation of buyer and seller, their 
minds must assent to the same proposition, and a consid
eration must pass. Commissioner of Internal Revenue 
v. Freihofer, C.C.A.3, 102 F.2d 787, 789, 790. 
The term "sale" includes any contract to sell or other
wise dispose of. Securities Exchange Act, § 3. 
"Sale", "sell", "offer to sell", or "offer for sale" in
cludes every contract of sale or disposition of, attempt or 
offer to dispose of, or solicitation of an offer to buy, a 
security or interest in a security, for value. Any securi-
SALE 
ty given or delivered with, or as a bonus on account of, 
any purchase of securities or any other thing, shall be 
conclusively presumed to constitute a part of the subject 
of such purchase and to have been sold for value. In
vestment Company Act, § 2. 
Sale, as applied to relation between landowner and 
real estate broker working to secure purchaser of land, 
means procuring purchaser able, ready and willing to 
buy on terms fixed by seller. 
See also Approval sales; Auction; Bargain and sale; 
Bargain sale or purchase; Bootstrap sale; Bulk sale; Buy 
and sell agreement; Cash sale; Casual sale; Consign
ment; Contract of sale; Credit sale; Fire sale; Forced 
sale; Installment sale; Isolated sale; Judicial sale; Scalp
er; Sheriff's sale; Simulated sale; Symbolic delivery; Tax 
sale; Wash sale. 
Other Terms Distinguished 
The contract of "sale" is distinguished from "barter" 
(which applies only to goods) and "exchange" (which is 
used of both land and goods), in that both the latter 
terms denote a commutation of property for property; 
i.e., the price or consideration is always paid in money if 
the transaction is a sale, but, if it is a barter or ex
change, it is paid in specific property susceptible of 
valuation. cCSale" differs from cCgift" in that the latter 
transaction involves no return or recompense for the 
thing transferred. But an onerous gift sometimes ap
proaches the nature of a sale, at least where the charge 
it imposes is a payment of money. cCSale" is also to be 
distinguished from "bailment;" and the difference is to 
be found in the fact that the contract of bailment always 
contemplates the return to the bailor of the specific 
article delivered, either in its original form or in a 
modified or altered form, or the return of an article 
which, though not identical, is of the same class, and is 
equivalent. But sale never involves the return of the 
article itself, but only a consideration in money. This 
contract differs also from "accord and satisfaction;" be
cause in the latter the object of transferring the proper
ty is to compromise and settle a claim, while the object 
of a sale is the price given. 
The cardinal difference between the relation of seller 
and buyer and that of principal and factor is that in a 
"sale" title passes to the buyer, while in a "consign
ment" by principal to factor title remains in principal, 
and only possession passes to factor. Also, a "sale" is 
distinguished from a mortgage, in that the former is a 
transfer of the absolute property in the goods for a price, 
whereas a mortgage is at most a conditional sale of 
property as security for the payment of a debt or per
formance of some other obligation, subject to the condi
tion that on performance title shall revest in the mort
gagor. 
An abandonment must be made without any desire 
that any other person shall acquire the thing aban
doned, since if it is made for a consideration it is a 
cCsale" or "barter," and if made without consideration, 
but with an intention that some other person shall

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SALE 
become the possessor, it is a "gift." Del Giorgio v. 
Powers, 27 Cal.App.2d 668, 81 P.2d 1006, 1014. 
General Classification 
Absolute and conditional sales. An absolute sale is one 
where the property in chattels passes to the buyer upon 
the completion of the bargain. A conditional sale is one 
in which the transfer of title is made to depend on the 
performance of a condition, usually the payment of the 
price; it is a purchase for a price paid or to be paid, to 
become absolute on a particular event, or a purchase 
accompanied by an agreement to resell upon particular 
terms. Vnder a conditional sale the seller reserves title 
as security for payment for goods. See also Conditional 
sale contract; Secured transaction. 
Auction sale. See Auction. 
Bill of sale. See Bill. 
Bulk sale. The sale of all or a substantial part of the 
seller's materials, supplies, merchandise, other invento
ry or in some cases equipment not in the ordinary 
course of business. V.C.C. § 6-102. Statutes prescribe 
the. procedure for such sales because of the danger of 
fraud on the creditors of the seller. 
Cash sale. A transaction whereby payment is to be in 
full on receipt of the goods. A sale where title is not to 
pass until the price is paid, or where title has passed, 
but possession is not to be delivered until payment is 
made. Compare Sale on credit, below. 
Conditional sale. See Absolute and conditional sales, 
above. 
Consignment sale. See Consignment. 
Credit sale. See Sale on credit, below. 
Exclusive sale. With respect to a real estate broker, an 
agreement by the owner that he will not sell the proper
ty during the life of the contract to any purchaser not 
procured by the broker in question. See Exclusive agen
cy listing; Listing. 
Executed and executory sales. An executed sale is one 
which is final and complete in all its particulars and 
details, nothing remaining to be done by either party to 
effect an absolute transfer of the subject-matter of the 
sale. An executory sale is one which has been definitely 
agreed on as to terms and conditions, but which has not 
yet been carried into full effect in respect to some of its 
terms or details, as where it remains to determine the 
price, quantity, or identity of the thing sold, or to pay 
installments of purchase-money, or to effect a delivery. 
Execution sale. See Execution sale. 
Fair sale. See Fair sale. 
Forced sale. A sale made without the consent or concur
rence of the owner of the property, but by virtue of 
judicial process, such as resulting from a writ of execu
tion or an order under a decree of foreclosure. See 
Judicial sale; Sheriffs sale; Tax-sale, below. 
Foreclosure sale. See Foreclosure. 
1338 
Fraudulent sale. One made for the purpose of defraud
ing the creditors of the owner of the property, by cover
ing up or removing from their reach and converting into 
cash property which would be subject to the satisfaction 
of their claims. Such sales may be voided by Bankrupt
cy Court. 
Gross sale. In accounting, the total sales before deduc
tion for return sales and allowances. 
Installment sale. A sale in which the buyer makes 
periodic payments and generally the seller reserves title 
until full payment has been made. See Retail install
ment sale; Sale on credit, below. 
Judicial sale. One made under the process of a court 
having competent authority to order it, by an officer 
duly appointed and commissioned to sell, as distin
guished from a sale by an owner in virtue of his right of 
property. See also Sheriff's sale; Tax-sale, below. 
Memorandum sale. That form of conditional sale in 
which the goods are placed in the possession of the 
vendee subject to his approval; the title remaining in 
the seller until they are either accepted or rejected by 
the vendee. 
Net sale. Gross sales (q.v.) less returns and allowances. 
Private sale. One negotiated and concluded privately 
between buyer and seller, and not made by advertise
ment and public notice or auction or through a broker 
or agent. See V.C.C. § 2-706. 
Public sale. A sale made in pursuance of a notice, by 
auction or sheriff. See V.C.C. § 2-706. See also Judi
cial sale, above; Sheriff's sale; Tax-sale, below. 
Retail installment sale. Sale of goods or the furnishing 
of services by a retail seller to a retail buyer for a 
deferred payment price payable in installments. 
Sale and return. A species of contract by which the 
seller (usually a manufacturer or wholesaler) delivers a 
quantity of goods to the buyer, on the understanding 
that, if the latter should desire to retain or use or resell 
any portion of such goods, he will consider such part as 
having been sold to him, and will pay their price, and 
the balance he will return to the seller, or hold them, as 
bailee, subject to his order. Sturm v. Boker, 150 V.S. 
312, 14 S.Ct. 99, 37 L.Ed. 1093. Vnder "contract of sale 
and return" title vests immediately in buyer, who has 
privilege of rescinding sale, and until privilege is exer
cised title remains in him. See V.C.C. § 2-326. 
Sale by auction. See Auction. 
Sale by sample. A sales contract in which it is the 
understanding of both parties that the goods exhibited 
constitute the standard with which the goods not exhib
ited correspond and to which deliveries should conform. 
Any sample which is made part of the basis of the 
bargain creates an express warranty that the whole of 
the goods shall conform to the sample or model. V.C.C. 
§ 2-313. See also Sample. sale by.

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Sale in gross. A sale by the tract, without regard to 
quantity; it is in that sense a contract of hazard. See 
also Gross sale, above. 
Sale-note. A, memorandum of the subject and terms of a 
sale, given by a broker or factor to the seller, who bailed 
him the goods for that purpose, and to the buyer, who 
dealt with him. Also called ttbought and sold notes." 
Sale on approval. A species of conditional sale, which is 
to become absolute only in case the buyer, on trial, 
approves or is satisfied with the article sold. The ap
proval, however, need not be express; it may be inferred 
from his keeping the goods beyond a reasonable time. 
See also Sale or return, below; and Approval sales. 
A sale is a sale on approval if the goods may be 
returned by the buyer though they conform to the 
contract and if they are primarily delivered for use. 
Generally, such goods are not subject to the claims of 
the creditors of the buyer until acceptance. V.C.C. 
§§ 2-326, 2-327. 
Sale on credit. A sale of property accompanied by 
delivery of possession, but where payment of the price is 
deferred to a future day. See Credit; also, Installment 
sale, above. 
Sale or return. A type of conditional sale wherein the 
goods may be returned to the seller though they conform 
to the contract if the goods are delivered primarily for 
resale. V.C.C. §§ 2-326(1), (3), 2-327. A contract for 
sale of goods whereby title passes immediately to buyer 
subject to his option to rescind or return goods if he does 
not resell them. American Nat. Bank of Denver v. 
Christensen, 28 Colo.App. 501, 476 P.2d 281, 285. See 
also Sale on approval, above. 
Sale per aversionem. In the civil law, a sale where the 
goods are taken in bulk, or not by weight or measure, 
and for a single price, or where a piece of land is sold for 
a gross sum, to be paid for the whole premises, and not 
at a fixed price by the acre or foot. A sale per aversion
em is sale of either distinct or separate immovable, such 
as a field enclosed or island in a river, or an immovable 
property sold by certain bounds or limits. Cornish v. 
Kinder Canal Co., La.App., 267 So.2d 625, 629. In such 
a sale, purchaser acquires property located within 
boundaries designated in sales agreement, irrespective 
of stated acreage in agreement; description of property 
by boundaries thus prevails over description referring to 
specific quantity or measurement. Deshotel v. Lachney, 
La.App. 3 Cir., 465 So.2d 974, 977. 
Sale with all faults. Vnder what is called a ttsale with 
all faults," or ttsale as is", unless the seller fraudulently 
and inconsistently represents the article sold to be fault
less, or contrives to conceal any fault from the purchas
er, the latter must take the article for better or worse. 
Sale with right of redemption. A sale in which vendor 
reserves right to take back property by returning price 
paid. See also Sale on approval; Sale or return, above. 
Sheriffs sale. A sale of property, conducted by a sheriff, 
or sheriffs deputy by virtue of his authority as an 
SALES TAX 
officer holding process. See Forced sale; Judicial sale, 
above, also, Foreclosure; Sheriff's sale. 
Short sale. See Short sale. 
Tax-sale. A sale of land for unpaid taxes; a sale of 
property, by authority of law, for the collection of a tax 
assessed upon it, or upon its owner, which remains 
unpaid. 
Voluntary sale. One made freely, without constraint, by 
the owner of the thing sold. Contrast Forced sale, above. 
Wash sale. In security trading, a spurious transaction 
in which the same stock is sold and bought by the same 
person to create the impression of market activity or to 
establish a market for the stock. Such transactions are 
forbidden. 
Sale against the box. A species of short sale (q. v.) at a 
time when the taxpayer owns substantially identical 
shares. 
Sale and leaseback. A lease that is initiated when a 
firm sells an asset it owns to another firm and simulta
neously leases the asset back for its own use. A sale of 
an asset to a vendee who immediately leases back to the 
vendor. The usual objectives are (1) to free cash in the 
amount of the purchase price for other uses by the 
vendor, (2) for benefits not otherwise available such a 
deduction by the vendor of the full value of the property 
for income tax purposes as rental payments over a 
period of time shorter than would be in depreciation 
where the base period is the allowable depreciable life. 
The rental payments total the purchase price plus inter
est less an estimated salvage value. Although the lease 
actually follows the sale, both are agreed to as part of 
the same transaction. 
Sale of land. See Conveyance; Conveyancing. 
Sale or exchange. The term used in taxation in refer
ence to a transaction which results in a gain or loss 
recognized for federal tax purposes. I.R.C. § 1001. 
Sales agreement or contract. A contract to sell goods. 
A contract by means of which the ownership of goods is 
transferred from a seller to a buyer for a fixed price in 
money, paid or agreed to be paid by the buyer. It may 
refer to a contract for sale which includes both a present 
sale and a contract to sell goods at a future time. V.C.C. 
§ 2-106(1). Also, term used to describe a contract for 
the sale of real estate, including a contract for deed. See 
also Conditional sale contract; Sale. 
Sales contract. See Sale; Sales agreement or contract. 
Sales finance company. A business engaged primarily 
in the purchase of accounts receivable at a discount. 
The company then undertakes to collect them. 
Sales invoice. See Invoice. 
Salesman. See Commercial traveler; Dealer; Drummer; 
Hawker; Peddler. 
Sales tax. A state or local-level tax on the retail sale of 
specified property or services. It is a percentage of the 
cost of such. Generally, the purchaser pays the tax, but 
the seller collects it, as an agent for the government.

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SALES TAX 
Various taxing jurisdictions allow exemptions for pur
chases of specified items, including certain foods, servic
es, and manufacturing equipment. If the purchaser and 
seller are in different states, a use tax usually applies. 
Saloon. A place of refreshment. Hinton v. State, 137 
Tex.Cr.R. 352, 129 S.W.2d 670, 673. In common par
lance, a place where intoxicating liquors are sold and 
consumed. 
Salus I srel�sl . Lat. Health; prosperity; safety. 
Salus populi suprema lex Isrel�s p6p(y)�lay s�priym� 
leks I . The welfare of the people is the supreme law. 
Lingo Lumber Co. v. Hayes, Tex.Civ.App., 64 S.W.2d 
835, 839. 
Salvage. In general, that portion of goods or property 
which has been saved or remains after a casualty such 
as fire or other loss. 
In business, any property which is no longer useful 
(e.g. obsolete equipment) but which has scrap value. 
In insurance, that portion of property which is taken 
over by the insurance company after payment of a claim 
for the loss. The insurance company may deduct the 
salvage value from the amount of the claim paid and 
leave the property with the insured. 
In maritime law, a compensation allowed to persons 
by whose assistance a ship or its cargo has been saved, 
in whole or in part, from impending danger, or recov
ered from actual loss, in cases of shipwreck, derelict, or 
recapture. Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 
7 S.Ct. 336, 30 L.Ed. 501. Elements necessary to valid 
"salvage" are marine peril, with service voluntarily ren
dered, when not required as existing duty, or from a 
special contract, and success in whole or in part, and 
that service rendered contributed to such success. Rob
ert R. Sizer & Co. v. Chiarello Bros., D.C.N.Y., 32 F.2d 
333, 335. 
Equitable salvage. By analogy, the term "salvage" is 
sometimes also used in cases which have nothing to do 
with maritime perils, but in which property has been 
preserved from loss by the last of several advances by 
different persons. In such a case, the person making 
the last advance is frequently entitled to priority over 
the others, on the ground that, without his advance, the 
property would have been lost altogether. This right, 
which is sometimes called that of "equitable salvage," 
and is in the nature of a lien, is chiefly of importance 
with reference to payments made to prevent leases or 
policies of insurance from being forfeited, or to prevent 
mines and similar undertakings from being stopped or 
injured. 
Salvage charges. This term includes all the expenses 
and costs incurred in the work of saving and preserving 
the property which was in danger. The salvage charges 
ultimately fall upon the insurers. 
Salvage loss. That kind of loss which it is presumed 
would, but for certain services rendered and exertions 
made, have become a total loss. In the language of 
marine underwriters, this term means the difference 
1340 
between the amount of salvage, after deducting the 
charges, and the original value of the property insured. 
Salvage service. A service voluntarily rendered to a 
vessel in need of assistance, and is designed to relieve 
her from distress or danger, either present or to be 
reasonably apprehended and for which a salvage reward 
is allowed by the maritime law. It is distinguished from 
"towage service," in that the latter is rendered for the 
mere purpose of expediting a vessel's voyage, without 
reference to any circumstances of danger, though the 
service in each case may be rendered in the same way. 
The Emanuel Stavroudis, D.C.Md., 23 F.2d 214, 216. 
Salvage value. That value of an asset which remains 
after the useful life of the asset has expired. It is 
commonly equivalent to scrap value and in most cases 
must be deducted in computing depreciation. Actual or 
estimated selling price, net of removal or disposal costs, 
of a used plant asset to be sold or otherwise retired. 
It may consist of the actual resale price which taxpay
er can expect to realize upon disposition of asset when 
taxpayer's use of it in his business terminates; it is not 
some nominal or junk value. Hibernia Nat. Bank in 
New Orleans, Trust Div. v. U.S., C.A.La., 740 F.2d 382, 
386. 
The value of a building or portion of a building to be 
moved from one location for use at another site. Occurs 
in condemnation, especially for highway purposes, 
where large tracts of land must be cleared. 
Salvo Isrelvow/. Lat. Saving; excepting; without preju
dice to. Salvo me et hreredibus meis, except me and my 
heirs. Salvo jure cujuslibet, without prejudice to the 
rights of any one. 
Salvor Isrelv�r/. A person who, without any particular 
relation to a ship in distress, proffers useful service, and 
gives it as a volunteer adventurer, without any pre-exist
ing covenant that connected him with the duty of em
ploying himself for the preservation of that ship. 
Salvus plegius Isrelv�s pliyj(iy)�s/. L. Lat. A safe 
pledge; called, also, "certus plegius," a sure pledge. 
Same. Identical, equal, equivalent. The word "same", 
however, does not always mean "identical." It frequent
ly·means of the kind or species, not the specific thing. 
When preceded by the definite article, means the one 
just referred to. 
Two offenses are "the same" under the double jeopar
dy clause of the Federal Constitution unless each re
quires proof of an additional fact that the other does not. 
Ex parte Joseph, Tex.Cr.App., 558 S.W.2d 891, 893. See 
also Jeopardy; Same offense. 
Same evidence test. The "same-evidence test" used in 
determining issue of double jeopardy is whether facts 
alleged in second indictment, if introduced in evidence, 
would have sustained a conviction under the first indict
ment or whether the same evidence would support a 
conviction in each case. U.S. v. Liotard, C.A.N.J., 817 
F.2d 1074, 1077. See Double jeopardy; Same offense.

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1341 
Same invention. Within reissue statute, refers to what
ever invention was described in original letters patent, 
and appears therein to have been intended to be secured 
thereby. Morgan v. Drake, Cust. & Pat.App., 36 F.2d 
511, 512. It is not to be determined by the claims of the 
original patent but from the description and such other 
evidence as the commissioner may deem relevant. De
trola Radio & Television Corporation v. Hazeltine Corpo
ration, C.C.A.Mich., 117 F.2d 238, 241. 
Same offense. As used in Constitution, providing that 
no person shall be twice put in jeopardy for the same 
offense, does not signify the same offense eo nomine, but 
the same criminal act, transaction, or omission. Term 
"same offense" as used in statute relating to enhance
ment of punishment for subsequent conviction of same 
offense means a similar offense, one of the same charac
ter or nature. Cherry v. State, Tex.Cr.App., 447 S.W.2d 
154, 158. However, under "same offense" test of double 
jeopardy, if there is any difference in elements to be 
proven, two instances are not the same offense. U.S. v. 
Martino, C.A.Fla., 648 F.2d 367, 382. See also Jeopardy; 
Same; Same evidence test. 
Sample. A specimen. A small quantity of any commod
ity, presented for inspection or examination as evidence 
of the quality of the whole; as a sample of cloth or of 
wheat. 
Sample, sale by. A sale at which only a sample of the 
goods sold is exhibited to the buyer. Any sample or 
model which is made part of the basis of the bargain 
creates an express warranty that the whole of the gou.ds 
shall conform to the sample or model. U.C.C. 
§ 2-313(1)(c). See also Sale. 
Same mentis I seyniy ment�sl. Lat. In old English law, 
of sound mind. 
Sanctio Isrel)ksh(iy)ow/. Lat. In the civil law, that part 
of a law by which a penalty was ordained against those 
who should violate it. 
Sanction, v. To assent, concur, confirm, reprimand, or 
ratify. U. S. v. Tillinghast, D.C.R.I., 55 F.2d 279, 283. 
Approval or ratification. 
Sanction, n. Penalty or other mechanism of enforce
ment used to provide incentives for obedience with the 
law or with rules and regulations. That part of a law 
which is designed to secure enforcement by imposing a 
penalty for its violation or offering a reward for its 
observance. For example, Fed.R.Civil P. 37 provides 
sanctions for failure to comply with discovery orders, 
and Rule 11 empowers court to impose disciplinary 
sanctions on attorneys for other types of improper con
duct. See also Contempt; Criminal sanctions. 
A punitive act taken by one nation against another 
nation which has violated a treaty or international law. 
Sanctuary. In old English law, a consecrated place 
which had certain privileges annexed to it, and to which 
offenders were accustomed to resort for refuge, because 
they could not be arrested there, nor the laws be exe
cuted. In general, any holy or consecrated place. 
SAP 
Sandwich lease. The first lease of property from lessor 
to lessee who in turn subleases to another. See Sub
lease. 
Sane. Of natural and normal mental condition; healthy 
in mind. One who knows the difference between right 
and wrong, and appreciates the consequences of his acts. 
Stout v. State, 142 Tex.Civ.R. 537, 155 S.W.2d 374, 377. 
Compare Insanity. 
Sanguis I srel)gw�sl. Lat. In the civil and old English 
law, blood; consanguinity. The right or power which 
the chief lord of the fee had to judge and determine 
cases where blood was shed. 
Sanipractic Isren�prrekt�k/. A method of drugless heal
ing. Martin v. Department of Social Security, 12 
Wash.2d 329, 121 P.2d 394, 395. 
Sanipractors I sren�prrekt�rz/. Drugless healers. State 
v. Lydon, 170 Wash. 354, 16 P.2d 848, 851. 
Sanitary. That which pertains to health, with especial 
reference to cleanliness and freedom from infective and 
deleterious influences. 
Sanitary code. Municipal ordinances regulating sani
tary conditions of establishments which produce, distrib
ute or serve food, or provide medical services. 
Sanitation. Devising and applying of measures for pre
serving and promoting public health; removal or neu
tralization of elements injurious to health; practical 
application of sanitary science. See Sanitary code. 
Sanity. Sound understanding; the normal condition of 
the human mind; the reverse of insanity (q. v.). 
Sanity hearing. A preliminary inquiry into the mental 
competency of a person to stand trial, though it may be 
held at any time within the criminal proceeding. See 18 
U.S.C.A. § 4241 et seq.; Fed.R.Crim.P. 12.2. 
A proceeding to determine whether one should be 
confined under a civil commitment to an institution. 
Sanity trial. In some states the issues of sanity and 
guilt may be tried separately in a bifurcated trial. 
Sans ce que Isrenz siy k�/. L. Fr. Without this. See 
Absque hoc. 
Sans frais ISDn frey/. Fr. Without expense. 
Sans impeachment de wast Isrenz �mpiychm�nt d� 
weyst/. L. Fr. Without impeachment of waste. See 
Absque impetitione vasti. 
Sans jour ISDn zhurlsrenz juri. Fr. Without day; sine 
die. 
Sans recours ISDn r�kurlsrenzo I. Fr. Without recourse. 
See Indorsement. 
Sap. A general term which, as applied to weapons, 
includes a "blackjack," "slung shot," "billy," "sandbag," 
or "brass knuckles". People v. Mulherin, 140 Cal.App. 
212, 35 P.2d 174, 175, 176. 
Sapiens incipit a fine, et quod primum est in inten
tione, ultimum est in executione Iseyp(i)yenz �nsip�t 
ey fayniy, et kwod praym�m est in intenshiyowniy

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SATISDARE 
a1t�m�m est in eks�kyuwshiyowniy /. A wise man be
gins with the last, and what is first in intention is last in 
execution. 
Sapiens omnia agit cum consilio / seyp(i)yenz oIim(i)y� 
eyj�t k�m k�nsil(i)yow / . A wise man does everything 
advisedly. 
Sapientia legis nummario pretio non est restimanda 
/srepiyensh(iy)� liyj�s n�mer(i)yow presh(iy)ow non est 
est�mrend�/. The wisdom of the law cannot be valued 
by money. 
Sapientis judicis est cogitare tantum sibi esse per
missum, quantum commissum et creditum 
/srepiyent�s juwd�s�s est koj�teriy trent�m sibay esiy 
p�rmis�m kwont�m k�mis�m et kred�t�m/. It is the 
part of a wise judge to think that a thing is permitted to 
him, only so far as it is committed and intrusted to him. 
That is, he should keep his jurisdiction within the limits 
of his commission. 
Satisdare /sret�sderiy/. Lat. In the civil law, to guaran
ty the obligation of a principal. 
Satisdatio /sret�sdeysh(iy)ow/. Lat. In the civil law, 
security given by a party to an action, as by a defendant, 
to pay what might be adjudged against him. 
Satisfaction. Act of satisfying; the state of being satis
fied. Seago v. New York Cent. R. Co., 349 Mo. 1249, 164 
S.W.2d 336, 341. The discharge of an obligation by 
paying a party what is due to him (as on a mortgage, 
lien, note, or contract), or what is awarded to him, by 
the judgment of a court or otherwise. Thus, a judgment 
is satisfied by the payment of the amount due to the 
party who has recovered such judgment, or by his 
levying the amount. The execution or carrying into 
effect of an accord. Jones v. Whiteley, 112 Idaho 886, 
736 P.2d 1340, 1344. The performance of a substituted 
obligation in return for the discharge of the original 
obligation. 
A legacy is deemed satisfied if the testator makes an 
inter vivos gift to the legatee with the intent that it be 
in lieu of the legacy. 
An entry made on the record, by which a party in 
whose favor a judgment was rendered declares that he 
has been satisfied and paid. 
See also Accord and satisfaction; Payment; Perform
ance. 
Accord and sa tisfaction. An "accord" is an agreement 
whereby one of parties undertakes to give or perform, 
and other to accept in satisfaction of liquidated or dis
puted claim arising in either contract or tort something 
different from what he is or considers himself entitled 
to; and "satisfaction" is execution or performance of 
agreement. Harris, Upham & Co., Inc. v. Ballantyne, 
Tex.Civ.App., 538 S.W.2d 153, 158. 
Equity. The doctrine of satisfaction in equity is some
what analogous to performance in equity, but differs 
from it in this respect: that satisfaction is always some
thing given either in whole or in part as a substitute or 
equivalent for something else, and not (as in perform-
1342 
ance) something that may be construed as the identical 
thing covenanted to be done. 
Satisfaction, contracts to. A class of contracts in which 
one party agrees to perform his promise to the satisfac
tion of the other. A contract for construction work "to 
the entire satisfaction of the owners" imports that the 
construction be to the satisfaction of a reasonable man 
and not to the personal satisfaction of owners. 
Satisfaction of debt. See Satisfaction. 
Satisfaction of judgment. A document such as an 
execution enforced by the judgment creditor and indicat
ing that the judgment has been paid. See Execution. 
Satisfaction of lien. Document signed by a lien holder 
in which he releases the property subject to the lien. 
Satisfaction of mortgage. A discharge signed by the 
mortgagee or holder of the mortgage indicating that the 
property subject to the mortgage is released or that the 
mortgage debt has been paid and that all terms and 
conditions of the mortgage have been satisfied. See also 
Redemption. 
Satisfaction piece. A memorandum in writing, entitled 
in a cause, stating that satisfaction is acknowledged 
between the parties, plaintiff and defendant. Upon this 
being duly acknowledged and filed in the office where 
the record of the judgment is, the judgment becomes 
satisfied, and the defendant discharged from it. See 
New York CPLR § 5020. Also referred to as "Certificate 
of Discharge." See Discharge. 
Satisfactory. Where a contract provides that it is to be 
performed in a manner "satisfactory" to one of the 
parties, the provision must be construed as meaning 
that the performance must be such that the party, as a 
reasonable person, should be satisfied with it. 
Satisfactory evidence. Such evidence as is sufficient to 
produce a belief that the thing is true; credible evi
dence. Such evidence as, in respect to its amount or 
weight, is adequate or sufficient to justify the court or 
jury in adopting the conclusion in support of which it is 
adduced. Sometimes called "sufficient evidence," means 
that amount of proof which ordinarily satisfies an un
prejudiced mind beyond a reasonable doubt. See Rele
vant evidence; Sufficient evidence. 
Satisfied term. A term of years in land is thus called 
when the purpose for which it was created has been 
satisfied or executed before the expiration of the set 
period. 
Satisfy. To answer or discharge, as a claim, debt, legal 
demand or the like. Swaner v. Union Mortg. Co., 99 
Utah 298, 105 P.2d 342, 345. To comply actually and 
fully with a demand; to extinguish, by payment or 
performance. To convince, as to satisfy a jury. See also 
Satisfaction. 
Satius est petere fontes quam sectari rivulos 
/seysh(iy)�s est pe�riy fontiyz kwrem sekteray 
rivy�lows/. It is better to seek the source than to follow 
the streamlets.

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1343 
Saturday night special. In corporate law, a surprise 
tender offer which expires in one week. Designed to 
capitalize on panic and haste, such an offer may be 
made Friday afternoon to take advantage of the fact 
that markets and most offices are closed on Saturday 
and Sunday. Saturday night specials have been effec
tively prohibited by the Williams Act, § 14(e), 15 V.S. 
C.A. § 78n(e). Term also used in reference to type of 
handgun weapon used in armed crimes. 
Saunkefin /sreIJfren/. L. Fr. End of blood; failure of the 
direct line in successions. 
Sauvagine /s6v�jiyn/. L. Fr. Wild animals. 
Save. To except, reserve, or exempt; as where a statute 
"saves" vested rights. To toll, or suspend the running 
or operation of; as to "save" the statute of limitations. 
See Saving clause. 
Save harmless clause. A provision in a document by 
which one party agrees to indemnify and hold harmless 
another party as to claims and suits which may be 
asserted against him. In some states, such clauses in 
leases are deemed against public policy and, hence, void. 
See also Hold harmless agreement. 
Saver default. L. Fr. In old English practice, to excuse 
a default. 
Saving. Preservation from danger or loss; economy in 
outlay; prevention of waste; something laid up or kept 
from becoming expended or lost; a reservation. Okla
homa Tax Commission v. Sisters of the Sorrowful Moth
er, 186 Okl. 339, 97 P.2d 888, 892. 
Saving clause. In a statute, an exception of a special 
thing out of the general things mentioned in the statute. 
Ordinarily a restriction in a repealing act, which is 
intended to save rights, pending proceedings, penalties, 
etc., from the annihilation which would result from an 
unrestricted repeal. That provision in a statute which 
rescues the balance of the statute from a declaration of 
unconstitutionality if one or more clauses or parts are 
invalidated. It is sometimes referred to as the severabil
ity clause. Such clause continues in force the law 
repealed as to existing rights. Dade County v. Wiseh
eart, Fla.App., 198 So.2d 94, 97. See also Separability 
clause; Severable statute. 
Savings account. Accounts maintained in commercial 
and savings banks for purpose of accumulating money, 
in contrast to a checking account. Savings accounts 
generally yield interest on the deposited funds, though 
the trend is to also pay interest· on checking account 
balances. 
Savings account trust. An account opened in the name 
of one person in trust for another; e.g. A in trust for B. 
See also Trust (Totten Trust). 
Savings and loan association. One of a number of 
types of mutually-owned, cooperative, savings associa
tions, originally established for the primary purpose of 
making loans to members and others, usually for the 
purchase of real estate or homes; though in the 1980's S 
& L's expanded into commercial and other non-mortgage 
SCAB 
loans and services. Such may be chartered by the state, 
or by the federal government, in which case it is known 
as a "Federal Savings and Loan Association." The 
deposits are insured by the Federal Deposit Insurance 
Corporation. The Financial Institution's Reform, Recov
ery and Enforcement Act of 1989 significantly changed 
the capital requirements, loan powers, and regulatory 
control of S & L's. See also Building and loan association. 
A bank chartered by the Federal Home Loan Bank 
Board and engaged primarily in making home loan 
mortgages from the savings accounts of the depositors. 
Associations at the federal level are regulated by the 
Federal Home Loan Bank System. 
Savings bank. See Bank. 
Savings bank trust. See Trust. 
Savings bond. See Bond. 
Savings notes. Short term paper issued by a bank and 
bearing interest. The V.S. government issues such 
notes on a 90 day basis and for other periods of time. 
Saving to suitors clause. That provision in 28 V.S.C.A. 
§ 1333(1) which gives the V.S. District Courts original 
jurisdiction, "exclusive of the courts of the state" of any 
civil case of admiralty or maritime jurisdiction, "saving 
to suitors in all cases all other remedies to which they 
are otherwise entitled." The "saving to suitors" clause 
of the section of the Judiciary Act implementing consti
tutional provision extending federal judicial powers to 
cases of admiralty and maritime jurisdiction means that 
a suitor asserting an in personam admiralty claim may 
elect to sue in a "common law" state court through an 
ordinary civil action, and in such actions, the state 
courts must apply the same substantive law as would be 
applied had the suit been instituted in admiralty in a 
federal court. Shannon v. City of Anchorage, Alaska, 
478 P.2d 815, 818. 
Savour / seyv�r / . To partake the nature of; to bear 
affinity to. 
Say about. This phrase, like "more or less," is frequent
ly introduced into conveyances or contracts of sale, to 
indicate that the quantity of the subject-matter is un
certain, and is only estimated, and to guard the vendor 
against the implication of having warranted the quanti
ty. 
S.B. Abbreviation for "Senate Bill." 
S.B.A. Small Business Administration. 
S.B.I.C. Small Business Investment Company. 
S.C. Abbreviation for "same case." Inserted between 
two citations, it indicates that the same case is reported 
in both places. Also an abbreviation for "supreme 
court." 
Sc. An abbreviation for "scilicet"; that is to say. 
Scab. Person who works for lower wages than or under 
conditions contrary to those prescribed by a trade union; 
also one who takes the place of a worker who is on 
strike. Non-union workers who pass through a union

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SCAB 
picket line. A worker who works under non-union con
ditions. 
Scabini /sk�baynay/. In old European law, the judges 
or assessors of the judges in the court held by the count. 
Assistants or associates of the count; officers under the 
count. The permanent selected judges of the Franks. 
Judges among the Germans, Franks, and Lombards, who 
were held in peculiar esteem. 
Scalam /skeybm/. At the scale; the old way of paying 
money into the exchequer. 
Scale order. An order to buy (or sell) a security which 
specifies the total amount to be bought (or sold) and the 
amount to be bought (or sold) at specified price varia
tions. 
Scale tolerance. Nominal variation between different 
scales in respect of the mass or weight of the same 
goods. 
Scaling laws. A term used to signify statutes establish
ing the process of adjusting the difference in value 
between depreciated paper money and specie. Such 
statutes were rendered necessary by the depreciation of 
paper money necessarily following the establishment of 
American independence. And, thereafter, to discharge 
those debts which were made payable in Confederate 
money. The statutes are now obsolete. 
Scalper. In securities business, a small operator who 
takes his profits on slight fluctuations in the market. A 
small scale speculator. One who sells tickets to sport
ing, theatre and other entertainment events at prices in 
excess of face price (i.e. box office price) of ticket. 
Scandal. Defamatory reports or rumors; aspersion or 
slanderous talk, uttered recklessly or maliciously. Scan
dalous matter may be ordered stricken from the plead
ings by a motion to strike. Fed.R.Civ.P. 12(0. See also 
Defamation. 
Scandalous matter. Within federal rule providing for 
striking scandalous matter from pleadings, "scandalous 
matter" is matter which improperly casts a derogatory 
light on someone, usually a party to the action, with 
respect to moral character or uses repulsive language. 
Gilbert v. Eli Lilly & Co., Inc., D.C.Puerto Rico, 56 
F.R.D. 116, 120. 
Scandalum magnatum / skamd�l�m mregneyt�m/. In 
English law, scandal or slander of great men or nobles. 
Words spoken in derogation of a peer, a judge, or other 
great officer of the realm, for which an action lies, 
though it is now rarely resorted to. 3 Bl.Comm. 123. 
This offense has not existed in America since the forma
tion of the United States. 
Scenes a faire. Fr. A copyright law doctrine referring 
to incidents, characters or settings which are as a prac
tical matter indispensable, or at least standard, in the 
treatment of a given topic. Alexander v. Haley, D.C. 
N.Y., 460 F.Supp. 40, 45. Such material, in an other
wise copyrightable work, is considered unprotected by 
copyright because it would be natural for it to appear in 
works dealing with similar subjects or situations. Data 
1344 
East USA, Inc. v. Epyx, Inc., C.A.Cal., 862 F.2d 2104, 
2108. See 17 U.S.C.A. § 102(b). 
Schedule. A sheet of paper annexed to a statute, deed, 
deposition, tax return, or other instrument, exhibiting 
in detail the matters mentioned or referred to in the 
principal document; e.g. schedule of assets and liabili
ties (debts) in bankruptcy proceeding. See Tax rate 
schedules. 
Any list of planned events to take place on a regular 
basis such as a train schedule or a schedule of work to 
be performed in a factory. 
Scheduled injuries. Certain types of injuries involving 
partial disability that are specifically covered in state 
workers' compensation statutes, each of which has a 
predetermined amount of compensation that will be 
paid for an employee experiencing that injury. 
Scheduled property. In insurance, a list of property 
and the value of each piece of such property for which 
the insurer will pay in the event of loss or damage. 
Scheme. A design or plan formed to accomplish some 
purpose; a system. Snider v. Leatherwood, Tex.Civ. 
App., 49 S.W.2d 1107, 1110. When used in a bad sense, 
term corresponds with "trick" or "fraud". 
Scheme or artifice to defraud. For purposes of fraudu
lent representation statutes, consists of forming plan or 
devising some trick to perpetrate fraud upon another. 
State v. Smith, 121 Ariz. 106, 588 P.2d 848. Such 
connotes a plan or pattern of conduct which is intended 
to or is reasonably calculated to deceive persons of 
ordinary prudence and comprehension. U.S. v. Washita 
Const. Co., C.A.Okl., 789 F.2d 809, 817. "Scheme to 
defraud" within meaning of mail fraud statute (18 U.S. 
C.A. § 1341) is the intentional use of false or fraudulent 
representations for the purpose of gaining a valuable 
undue advantage or working some injury to something 
of value held by another. U.S. v. Mandel, D.C.Md., 415 
F.Supp. 997, 1005. See also Artifice; Fraud; Mail fraud. 
Schism / siz�m/. A division of a union into two factions 
resulting in one group leaving the union. In ecclesiasti
cal law, a division or separation in a church or denom
ination of Christians, occasioned by a diversity of faith, 
creed, religious opinions, or repudiation of ecclesiastical 
authority. 
School. An institution or place for instruction or edu
cation. 
Common schools. Schools maintained at the public ex
pense and administered by a bureau of the state, dis
trict, or municipal government, for the gratuitous edu
cation of the children of all citizens without distinction. 
See also Public schools, below. 
Consolidated school district. A common school district 
where two or more existing schools have consolidated 
into one single district. 
District school. A common or public school for the 
education at public expense of the children residing 
within a given district; a public school maintained by a 
"school district." See School district, below.

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1345 
Private school. One maintained by private individuals, 
religious organizations, or corporations, not at public 
expense, and open only to pupils selected and admitted 
by the proprietors or governors, or to pupils of a certain 
religion or possessing certain qualifications, and general
ly supported, in part at least, by tuition fees or charges. 
Public schools. Schools established under the laws of 
the state (and usually regulated in matters of detail by 
the local authorities), in the various districts, counties, 
or towns, maintained at the public expense by taxation, 
and open, usually without charge, to the children of all 
the residents of the city, town or other district. Schools 
belonging to the public and established and conducted 
under public authority. 
School board or committee. A board of municipal offi
cers charged with the administration of the affairs of 
the public schools. They are commonly organized under 
the general laws of the state, and fall within the class of 
quasi corporations, sometimes coterminous with a coun
ty or district, but not necessarily so. The members of 
the school board or committee are usually elected by the 
voters of the school district. The circuit of their territo
rial jurisdiction is called a "school district," and each 
school district is commonly a separate taxing district for 
school purposes. 
School directors. See School board or committee, above. 
School district. A public and quasi municipal corpora
tion, organized by legislative authority or direction, com
prising a defined territory, for the erection, mainte
nance, government, and support of the public schools 
within its territory in accordance with and in subordina
tion to the general school laws of the state, invested, for 
these purposes only, with powers of local self-govern
ment and generally of local taxation, and administered 
by a board of officers, usually elected by the voters of 
the district, who are variously styled "school directors", 
"school boards", "school committees", "trustees", "com
missioners", or "supervisors" of schools. 
School lands. Public lands of a state set apart by the 
state (or by congress in a territory) to create, by the 
proceeds of their sale, a fund for the establishment and 
maintenance of public schools. 
Sciendum est / sayend;}m est/. Lat. It is to be known; 
be it remarked. In the books of the civil law, this 
phrase is often found at the beginning of a chapter or 
paragraph, by way of introduction to some explanation, 
or directing attention to some partiCUlar rule. 
Scienter /sayent;}r/. Lat. Knowingly. The term is 
used in pleading to signify an allegation (or that part of 
the declaration or indictment which contains it) setting 
out the defendant's previous knowledge of the cause 
which led to the injury complained of, or rather his 
previous knowledge of a state of facts which it was his 
duty to guard against, and his omission to do which has 
led to the injury complained of. The term is frequently 
used to signify the defendant's guilty knowledge. 
Knowledge by the misrepresenting party that materi
al facts have been falsely represented or omitted with an 
SCINTILLA OF EVIDENCE RULE 
intent to deceive. Myzel v. Fields, C.A.Minn., 386 F.2d 
718, 734. 
The term "scienter," as applied to conduct necessary 
to give rise to an action for civil damages under Securi
ties Exchange Act of 1934 and Rule 1Ob-5 refers to a 
mental state embracing intent to deceive, manipulate or 
defraud. Ernst and Ernst v. Hochfelder, Ill., 425 U.S. 
185, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668. 
Scientia sciolorum est mixta ignorantia /sayensh(iy);} 
say;}lor;}m est mikst;} ign;}rrensh(iy);}/. The knowledge of 
smatterers is diluted ignorance. 
Scientia utrimque par pares contrahentes facit 
/sayensh(iy);} yuwtrimkwiy p;}er periyz kontr;}hentiyz 
feys;}t/. Equal knowledge on both sides makes contract
ing parties equal. An insured need not mention what 
the underwriter knows, or what he ought to know. 
Scienti et volenti non fit injuria /sayentay et v;}lentay 
non fit injuriy;}/. An injury is not done to one who 
knows and wills it. 
Sci. fa. / say fey / . An abbreviation for "scire facias" 
(q.v .). 
Scilicet /sil;}s;}t/sayl;}s;}t/. Lat. To-wit; that is to say. 
A word used in pleadings and other instruments, as 
introductory to a more particular statement of matters 
previously mentioned in general terms. 
Scintilla /sintil;}/. Lat. A spark; a remaining particle; 
a trifle; the least particle. 
Scintilla juris /sintib jur;}s/. In real property law, a 
spark of right or interest. By this figurative expression 
was denoted the small particle of interest, which, by a 
fiction of law, was supposed to remain in a feoffee to 
uses, sufficient to support contingent uses afterwards 
coming into existence, and thereby enable the statute of 
uses (27 Hen. VIII, c. 10) to execute them. 
Scintilla of evidence rule / sintil;} ;}v ev;}d;}ns/. A spark 
of evidence. A metaphorical expression to describe a 
very insignificant or trifling item or particle of evidence; 
used in the statement of the common-law rule that if 
there is any evidence at all in a case, even a mere 
scintilla, tending to support a material issue, the case 
cannot be taken from the jury, but must be left to their 
decision. 
The "scintilla evidence rule" requires that if there is 
even a scintilla of evidence presented to support the 
nonmoving party's position, summary judgment should 
not be granted. Chiniche v. Smith, Ala., 374 So.2d 872, 
873. With regard to precluding summary judgment for 
defendant, "scintilla rule" requires only that the evi
dence, or reasonable inferences therefrom, furnish a 
mere gleam, glimmer, spark, the least bit, the smallest 
trace, in support of plaintiffs complaint. Wilson v. 
Liberty Nat. Life Ins. Co., Ala., 331 So.2d 617, 619. 
Any material evidence that, if true, would tend to 
establish issue in mind of reasonable juror. Something 
of substance and relevant consequence and not vague, 
uncertain, or irrelevant matter not carrying quality of 
proof or having fitness to induce conviction. Wiggin-

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SCINTILLA OF EVIDENCE RULE 
ton's Adm'r v. Louisville Ry. Co., 256 Ky. 287, 75 S.W.2d 
1046, 1051. Courts differ as to what constitutes a "scin
tilla," and some courts do not accept the rule. For 
example, it has been held that while the cogency of 
evidence is not dependent on its quantity, if the party 
with the burden of proof has introduced only a scintilla 
of evidence on an essential element of his case, a judge 
may direct a verdict against him. Such evidence is 
inadequate as a matter of law. It has also been held 
that it is the duty of trial court to instruct a verdict, 
though there is slight testimony, if its probative force is 
so weak that it only raises suspicion of existence of facts 
sought to be established, since such testimony falls short 
of being "evidence". Texas Pacific Coal & Oil Co. v. 
Wells, Tex.Civ.App., 151 S.W.2d 927, 929. 
Scire debes cum quo contrahis / sayriy diybiyz k�m 
kwow k:mtrey(h):}s/. You ought to know with whom you 
deal. 
Scire et scire debere requiparantur in jure / sayriy et 
sayriy d:}biriy ekw:}p:}rrent:}r in juriy /. To know a thing, 
and to be bound to know it, are regarded in law as 
equivalent. 
Scire facias / sayriy feysh(iy):}s/. Lat. A judicial writ, 
founded upon some matter of record, such as a judgment 
or recognizance and requiring the person against whom 
it is brought to show cause why the party bringing it 
should not have advantage of such record, or (in the case 
of a scire facias to repeal letters patent) why the record 
should not be annulled and vacated. The name is used 
to designate both the writ and the whole proceeding. 
City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 
504, 505. A judicial writ directing a debtor to appear 
and show cause why a dormant judgment against him 
should not be revived. The most common application of 
this writ is as a process to revive a judgment, after the 
lapse of a certain time, or on a change of parties, or 
otherwise to have execution of the judgment, in which 
cases it is merely a continuation of the original action. 
It is used more rarely as a mode of proceeding against 
special bail on their recognizance, and as a means of 
repealing letters patent, in which cases it is an original 
proceeding. Under current rules practice in most 
states, this writ has been abolished; e.g. Mass.R.Civil P. 
81. 
A legal, as opposed to equitable, form of judicial fore
closure. After mortgagor default, the mortgagee obtains 
a writ of Scire Facias, which is an order to show cause 
why the mortgaged property should not be sold to satisfy 
the mortgage debt. If mortgagee prevails, the court will 
issue a writ of levari facias directing an execution sale of 
the mortgaged real estate. 
Scire facias ad audiendum errores /sayriy feysh(iy):}s 
eM odiyend:}m :}roriyz/. The name of a writ which is 
sued out after the plaintiff in error has assigned his 
errors. 
Scire facias ad disprobandum debitum /sayriy 
feysh(iy):}s eM dispr:}brend:}m det:}d:}m/. The name of a 
writ which lies by a defendant in foreign attachment 
against the plaintiff, in order to enable him, within a 
1346 
year and a day next ensuing the time of payment to the 
plaintiff in the attachment, to disprove or avoid the debt 
recovered against him. 
Scire facias ad rehabendam terram /sayriy feysh(iy):}s 
red riyh:}bend:}m tehr:}m/. Lies to enable a judgment 
debtor to recover back his lands taken under an elegit 
when the judgment creditor has satisfied or been paid 
the amount of his judgment. 
Scire facias quare restitutionem non / sayriy 
feysh(iy):}s kweriy rest:}t(y)uwshiyown:}m non/. This 
writ lies where execution on a judgment has been levied, 
but the money has not been paid over to the plaintiff, 
and the judgment is afterwards reversed in error or on 
appeal; in such a case a scire facias is necessary before a 
writ of restitution can issue. 
Scire facias sur mortgage /sayriy feysh(iy):}s s�r 
morg:}j/. A writ issued upon the default of a mortgagor 
to make payments or observe conditions, requiring him 
to show cause why the mortgage should not be foreclos
ed, and the mortgaged property taken and sold in execu
tion. 
Scire facias sur municipal claim /sayriy feysh(iy):}s s�r 
myuwnis:}p:}l kleym/. A writ authorized to be issued as 
a means of enforcing payment of a municipal claim (q. v.) 
out of the real estate upon which such claim is a lien. 
Scire feci /sayriy fiysay/. Lat. The name given to the 
sheriffs return to a writ of scire facias that he has 
caused notice to be given to the party or parties against 
whom the writ was issued. 
Scire fieri inquiry / sayriy fay:}ray :}nkwayriy rin
kw:}riy/. In old English law, the name of a writ former
ly used to recover the amount of a judgment from an 
executor. 
Scire leges non hoc est verba earum tenere, sed vim 
ac potestatem / sayriy liyjiyz non hok est v;}rb:} iyer:}m 
t:}niriy sed vim rek powt:}steyt:}m/. To know the laws is 
not to observe their mere words, but their force and 
power [that is, the essential meaning in which their 
efficacy resides]. 
Scire proprie est rem ratione et per causam cognos
cere / sayriy prowpriyiy est rem rreshiyowniy et p�r 
koz:}m k:}gnos:}riy /. To know properly is to know a 
thing in its reason, and by its cause. We are truly said 
to know anything, where we know the true cause there
of. 
Scirewyte /shayrwayt/. In old English law, a tax or 
prestation paid to the sheriff for holding the assizes or 
county courts. 
Scite or site / sayt/. The sitting or standip.g on any 
place; the seat or situation of a capital messuage, or the 
ground whereon it stands. 
Scold. At common law, a troublesome and angry person 
who, by brawling and wrangling among his or her neigh
bors, breaks the public peace, increases discord, and 
becomes a public nuisance to the neighborhood. A 
quarrelsome, brawling, vituperative person.

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1847 
Scope of a patent. The boundaries or limits of the 
invention protected by the patent, which are not mat
ters of metes and bounds and can never be defined in 
the definite sense employed in thinking of physical 
things, but must be determined by methods based upon 
established principles of patent law. Smith v. Mid-Con
tinent Inv. Co., C.C.A.Mo., 106 F.2d 622, 624. 
Scope of authority. In law of agency, includes not only 
actual authorization conferred upon agent by his princi
pal, but also that which has apparently or impliedly 
been delegated to agent. Angerosa v. White Co., 248 
App.Div. 425, 290 N.Y.S. 204, 208. Under doctrine of 
respondeat superior (q.v .) a principal is liable for the 
contracts of his agent if the agent contracted within the 
scope of his actual or apparent authority. See also 
Authority; Scope of emplo yment. 
Scope of employment. The activities in which an em
ployee engages in the carrying out of the employer's 
business which are reasonably foreseeable by the em
ployer. Under doctrine of respondeat superior (q.v.), a 
principal is liable for the torts of his agent committed 
within the scope, actual or apparent, of his employment. 
An employee acts in scope of his employment, for 
purpose of invoking a doctrine of respondeat superior, 
when he is doing something in furtherance of duties he 
owes to his employer and where employer is, or could be, 
exercising some control, directly or indirectly, over em
ployee's activities. Lundberg v. State, 255 N.E.2d 177, 
179, 25 N.Y.2d 467, 306 N.Y.S.2d 947. Employee is in 
"scope of employment," such that corporate employer is 
liable to third party for his torts, whenever he is en
gaged in activities that fairly and reasonably may be 
said to be incident of the employment or logically and 
naturally connected with it. Daughdrill v. Diamond M. 
Drilling Co., C.A.La., 447 F.2d 781, 785. 
See also Respondeat superior; Vicarious liability. 
Scorn. To hold in extreme contempt; to reject as unwor
thy of regard; to despise, to contemn, to disdain. 
S Corporation. See Corporation (S Corporation). 
Scot. In old English law, a tax, or tribute; one's share of 
a contribution. 
Scotal Isk6teyl/. In old English law, an extortionate 
practice by officers of the forest who kept alehouses, and 
compelled the people to drink at their houses for fear of 
their displeasure. Prohibited by the Charter of the 
Forest, c. 7. See Charta (Charta de foresta). 
Scot and lot. In old English law, the name of a custom
ary contribution, laid upon all subjects according to 
their ability. 
Scottare I sk;}teriy I. To pay scot, tax, or customary dues. 
Scoundrel Iskawndr;}l/. An opprobrious epithet, imply
ing rascality, villainy, or a want of honor or integrity. 
In slander, this word is not actionable per se. 
Scrambling possession. See Possession. 
Scratching the ticket. Exists where partisan voters 
support and vote for one or more of nominees of opposite 
SCRIVENER 
political party. Swindall v. State Election Board, 168 
Oklo 97, 32 P.2d 691, 696. 
Scrawl. See Scroll or scrawl. 
Scriba Iskrayb;}/. Lat. A scribe; a secretary. Scriba 
regis Iskrayb;} riyj;}sl, a king's secretary; a chancellor. 
Scribere est agere I skrayb;}riy est rej;}riy I. To write is 
to act. Treasonable words set down in writing amount 
to overt acts of treason. 
Scrip. A document which entitles the holder to receive 
something of value. It is ultimately exchanged for mon
ey or some privilege. In corporations, when a stock 
dividend is declared, scrip is issued in place of fractional 
shares and when the holder has sufficient scrip he may 
exchange the scrip for a share. 
Paper money issued for temporary use. 
The term has also formerly been applied to warrants, 
certificates, or other like orders drawn on a municipal 
treasury showing the holder to be entitled to a certain 
portion or allotment of public or state lands, and also to 
the fractional paper currency issued by the United 
States during the period of the Civil War. 
Scrip dividend. Type of deferred dividend commonly in 
the form of a promissory note which is redeemable in 
stock or cash at a future time. See also Dividend. 
Script. Something written (e.g. manuscript). The origi
nal of an instrument or document. Where instruments 
are executed in part and counterpart, the original or 
principal is so called. 
Scriptre obligationes scriptis tolluntur, et nudi con
sensus obligatio contrario consensu dissolvitur 
Iskriptiy obl;}geyshiy6wniyz skript;}s tol;)nt;}r, et n(y)uw
day k;}nsens;}s obl;}geysh(iy)ow k;}ntreriyow k;}nsens(y)uw 
d;}z61v;}t;}r/. Written obligations are superseded by writ
ings, and an obligation of naked assent is dissolved by 
assent to the contrary. 
Scriptum Iskript;}m/. Lat. A writing; something writ
ten. 
Scriptum indentatum Iskript;}m indenteyt;}m/. A writ
ing indented; an indenture or deed. 
Scriptum obligatorium I skript;}m obbg;}t6riy;}m/. A 
writing obligatory. The technical name of a bond in old 
pleadings. Any writing under seal. 
Scrivener Iskriv(;})n;}r/. A writer; scribe; conveyancer. 
One whose occupation is to draw contracts, write deeds 
and mortgages, and prepare other species of written 
instruments. Also an agent to whom property is in
trusted by others for the purpose of lending it out at an 
interest payable to his principal, and for a commission 
or bonus for himself, whereby he gains his livelihood. 
Term is seldom used in United States. 
Money scrivener. A money broker. The name was also 
formerly applied in England to a person (generally an 
attorney or solicitor) whose business was to find invest
ments for the money of his clients, and see to perfecting 
the securities, and who was often intrusted with the

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SCRIVENER 
custody of the securities and the collection of the inter
est and principal. 
Scroll or scrawl. A mark intended to supply the place 
of a seal, made with a pen or other instrument of 
writing. 
A paper or parchment containing some writing, and 
rolled up so as to conceal it. 
Scruet-roll Iskruw;)t rowl!. In old practice, a species of 
roll or record, on which the bail on habeas corpus was 
entered. 
Scrutator Iskruwteyt;)r/. Lat. In old English law, a 
searcher or bailiff of a river; a water-bailiff, whose 
business was to look to the king's rights, as to his 
wrecks, his flotsam, jetsam, water-strays, royal fishes. 
Scurrilous I sk�r;)l;)s/. Low and indecent language; low 
indecency or abuse; mean; foul; vile. Synonymous 
with vulgar, foul or foul-mouthed. 
Scutage Isk(y)uwt;)j/. In feudal law, a tax or contribu
tion raised by those that held lands by knight's service, 
towards furnishing the king's army, at the rate of one, 
two or three marks for every knight's fee. 
A pecuniary composition or commutation made by a 
tenant by knight-service in lieu of actual service. 
A pecuniary aid or tribute originally reserved by 
particular lords, instead or in lieu of personal service, 
varying in amount according to the expenditure which 
the lord had to incur in his personal attendance upon 
the king in his wars. 
Scutagio habendo Isk(y);)teyj(iy)ow h;)bendow/. A writ 
that anciently lay against tenants by knight's service to 
serve in the wars, or send sufficient persons, or pay a 
certain sum. 
Scyra Ishayr;)/. In old English law, shire; county; the 
inhabitants of a county. 
Scyregemote Ishayrg;)mowt/. In Saxon law, the meet
ing or court of the shire. This was the most important 
court in the Saxon polity, having jurisdiction of both 
ecclesiastical and secular causes. Its meetings were 
held twice in the year. Its Latin name was "curia 
comitatis '� 
S.D. Southern District; e.g. U.S. District Court for 
Southern District of New York. 
SID B/L. The abbreviation uS/D B/L" in a contract of 
sale means sight draft-bill of lading attached. 
SDWA. Safe Drinking Water Act. 42 U.S.C.A. 
§§ 300h-1 to 5. 
Sea. The ocean; the great mass of water which sur
rounds the land. In marine insurance usea" includes 
not only the high seas but the bays, inlets, and rivers as 
high up as the tide ebbs and flows. The Unavigable sea" 
is divided into three zones: (1) nearest to the nation's 
shores are its internal or uinland waters"; (2) beyond 
the inland waters, and measured from their seaward 
edge, is a belt known as the marginal or "territorial 
sea"; and (3) outside the territorial sea are the "high 
1348 
seas". U. S. v. State of La., 89 S.Ct. 773, 781. See also 
Seaworthy. 
High seas. The ocean; public waters. According to the 
English doctrine, the high sea begins at the distance of 
three miles from the coast of any country; according to 
the American view, at low-water mark, except in the 
case of small harbors and roadsteads inclosed within the 
fauces terrre. U. S. v. Rodgers, 150 U.S. 249, 14 S.Ct. 
109, 37 L.Ed. 1071. The open ocean outside of the fauces 
terrre, as distinguished from arms of the sea; the waters 
of the ocean without the boundary of any country. Any 
waters on the sea-coast which are without the bound
aries of low-water mark. Waters outside of territorial 
jurisdiction of nation. 
Main sea. The open, uninclosed ocean; or that portion 
of the sea which is without the fauces terrre on the 
sea-coast, in contradistinction to that which is surround
ed or inclosed between narrow headlands or promonto
ries. U. S. v. Rodgers, 150 U.S. 249, 14 S.Ct. 109, 37 
L.Ed. 1071. 
Sea bed. All that portion of land under the sea that lies 
beyond the sea-shore. 
Sea-brief. See Sea letter, below. 
Sea laws. Laws relating to the sea, as the laws of 
Oleron, etc. 
Sea letter. A species of manifest, containing a descrip
tion of the ship's cargo, with the port from which it 
comes and the port of destination. This is one of the 
documents necessary to be carried by all neutral vessels, 
in the merchant service, in time of war, as an evidence 
of their nationality. The last sea letter was issued at 
the Port of New York in 1806, and the use of sea letters 
was discontinued by proclamation of President Madison 
in 1815. See Manifest. 
Sea-reeve. An officer in maritime towns and places who 
took care of the maritime rights of the lord of the 
manor, and watched the shore, and collected wrecks for 
the lord. 
Sea-rovers. Pirates and robbers at sea. 
Sea-shore. The margin of the sea in its usual and 
ordinary state. When the tide is out, low-water mark is 
the margin of the sea; and, when the sea is full, the 
margin is high-water mark. The sea-shore is therefore 
all the ground between the ordinary high-water mark 
and low-water mark. It cannot be' considered as includ
ing any ground always covered by the sea, for then it 
would have no definite limit on the sea-board. Neither 
can it include any part of the upland, for the same 
reason. Commonwealth of Massachusetts v. State of 
New York, 271 U.S. 65, 46 S.Ct. 357, 362, 70 L.Ed. 838. 
That space of land over which the waters of the sea are 
spread in the highest water during the winter season. 
Seal. An impression upon wax, wafer, or some other 
tenacious substance capable of being impressed. In cur
rent practice, a particular sign (e.g. L.S.) or the word 
"seal" is made in lieu of an actual seal to attest the 
execution of the instrument.

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As regards sealing of records, means to close by any 
kind of fastening that must be broken before access can 
be obtained. See Sealing of records. 
See also Contract under seal. 
Corporate seal. A seal adopted and used by a corpora
tion for authenticating its corporate acts and executing 
legal instruments. 
Great seal. The United States and also each of the 
states has and uses a seal, always carefully described by 
law, and sometimes officially called the "great" seal, 
though in some instances known simply as "the seal of 
the United States," or "the seal of the state." 
Private seal. The seal (however made) of a private 
person or corporation, as distinguished from a seal em
ployed by a state or government or any of its bureaus or 
departments. 
Public seal. A seal belonging to and used by one of the 
bureaus or departments of government, for authenticat
ing or attesting documents, process, or records. An 
impression made of some device, by means of a piece of 
metal or other hard substance, kept and used by public 
authority. See also State seal. 
Sealed Authenticated by a seal; executed by the affix
ing of a seal. 
Sealed and delivered These words, followed by the 
signatures of the witnesses, constitute the usual formula 
for the attestation of conveyances. 
Sealed bid. A method for submitting a bid to buy or to 
perform work on a proposed contract. In general, each 
party interested submits a bid in a sealed envelope, and 
all such bids are opened at the same time and the most 
favorable responsible bid is accepted. 
Sealed instrument. An instrument of writing to which 
the party to be bound has affixed not only his name, but 
also his seal. See also Seal. 
The affixing of a seal to a contract for sale or an offer 
to buy or sell goods does not make the writing a sealed 
instrument and the law of sealed instruments does not 
apply to such contract. U.C.C. § 2-203. 
Sealed verdict. When the jury have agreed upon a 
verdict, if the court is not in session at the time, they 
are permitted (usually) to put their written finding in a 
sealed envelope, and then separate. This verdict they 
return when the court again convenes. The verdict thus 
returned has the same effect, and must be treated in the 
same manner, as if returned in open court before any 
separation of the jury had taken place. 
Sealing. In matters of succession, the placing, by the 
proper officer, of seals on the effects of a succession for 
the purpose of preserving them, and for the interest of 
third persons. The seals are affIxed by order of the 
judge having jurisdiction. 
Sealing of records. Statutes in some states permit a 
person's criminal record to be sealed and thereafter such 
records cannot be examined except by order of the court 
SEARCH 
or by designated officials. Such statutes commonly per
tain to juvenile offenders. 
Seaman's will. See Sailors' will. 
Seamen. Sailors; mariners; persons whose business is 
navigating ships, or who are connected with the ship as 
such and in some capacity assist in its conduct, mainte
nance or service. Commonly exclusive of the officers of 
a ship. The Lillian, D.C.Me., 16 F.2d 146, 148. One 
whose occupation is to navigate vessels upon the sea 
including all those on board whose labor contributes to 
the accomplishment of the main object in which the 
vessel is engaged. Osland v. Star Fish & Oyster Co., 
C.C.A.Ala., 107 F.2d 113, 114. Term includes anyone 
who, in course of his work about a ship, exposes himself 
to risks traditionally associated with maritime duties of 
a member of ship's crew. Garrett v. Gutzeit, C.A.Va., 
491 F.2d 228, 233. 
Worker is "seaman" within meaning of Jones Act if 
he is assigned permanently to vessel in navigation or 
performs substantial part of his work on vessel, contrib
uting to function of vessel or to accomplishment of its 
mission. Garret v. Dean Shank Drilling Co., Inc., C.A. 
La., 799 F.2d 1007, 1009. To determine whether injured 
workman is a seaman with Jones Act rights, vessel he is 
on must be in navigation, there must be a more or less 
permanent connection with vessel, and he must be 
aboard primarily to aid in navigation. Sandoval v. 
Mitsui Sempaku K. K. Tokyo, D.C.Canal Zone, 313 
F.Supp. 719, 725. See also Longshoreman. 
Seance Iseyons/seyons/. In French law, a session; as of 
some public body. 
Search. "Search" consists of looking for or seeking out 
that which is otherwise concealed from view. People v. 
Carlson, Colo., 677 P.2d 310, 316. An examination of a 
person's house or other buildings or premises, or of his 
person, or of his vehicle, aircraft, etc., with a view to the 
discovery of contraband or illicit or stolen property, or 
some evidence of guilt to be used in the prosecution of a 
criminal action for some crime or offense with which he 
is charged. State v. Woodall, 16 Ohio Misc. 226, 241 
N.E.2d 755, 757. A "search" implies prying into hidden 
places for that which is concealed and that the object 
searched for had been hidden or intentionally put out of 
the way; merely looking at that which is open to view is 
not a search. People v. Harris, 256 C.A.2d 455, 63 
Cal.Rptr. 849, 852. It consists of probing or exploration 
for something that is concealed or hidden from searcher; 
an invasion, a quest with some sort of force, either 
actual or constructive. People v. Carroll, 12 Ill.App.3d 
869, 299 N.E.2d 134, 140. Visual observation which 
infringes upon a person's reasonable expectation of pri
vacy constitutes a "search" in the constitutional sense. 
People v. Harfmann, Colo.App., 555 P.2d 187, 189. 
A "search" to which the exclusionary rule may apply 
is one in which there is a quest for, a looking for, or a 
seeking out of that which offends against the law by law 
enforcement personnel or their agents. Vargas v. State, 
Tex.Cr.App., 542 S.W.2d 151, 153.

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SEARCH 
Unreasonable searches and seizures are prohibited by 
the Fourth Amendment, U.S. Const. 
See also Border search; Consent search; Exclusionary 
Rule; Exigent circumstances; Fruit of poisonous tree doc
trine; Illegally obtained evidence; Incidental to arrest; In
spection searches; Inventory search; Knock and an
nounce rule; Mapp v. Ohio; McNabb-Mallory Rule; Mere 
evidence rule; Plain view doctrine; Poisonous tree doc
trine; Probable cause; Reasonable suspicion; Search 
warrant; Seizure; Stop and frisk; Totality of circumstances 
test; Warrant. 
International law. The right of search is the right on 
the part of ships of war to visit and search merchant 
vessels during war, in order to ascertain whether the 
ship or cargo is liable to seizure. Resistance to visita
tion and search by a neutral vessel makes the vessel and 
cargo liable to confiscation. Numerous treaties regulate 
the manner in which the right of search must be exer
cised. 
Title search. An examination of the official books, 
records and dockets, made in the process of investigating 
a title to land, for the purpose of discovering if there are 
any mortgages, judgments, tax-liens, or other incum
brances upon it. See also Abstract of title. 
Unlawful or unreasonable search. Within constitutional 
immunity (Fourth Amendment) from unreasonable 
searches and seizures, an examination or inspection 
without authority of law of premises or person with view 
to discovery of stolen, contraband, or illicit property, or 
for some evidence of guilt to be used in prosecution of 
criminal action. Bush v. State, 64 Okl.Cr. 161, 77 P.2d 
1184, 1187. See Exclusionary Rule; Fruit of poisonous 
tree doctrine; Probable cause; Search warrant. 
Voluntary search. As used in context of consent to 
search, means that consent was not result of duress or 
coercion, express or implied, or any other form of undue 
influence exercised against defendant. People v. Thiret, 
Colo., 685 P.2d 193, 200. See Consent search. 
Search incident to arrest. A police officer who has the 
right to arrest a person either with or without a warrant 
may search his person and the immediate area of the 
arrest for weapons. Chimel v. California, 395 U.S. 752, 
89 S.Ct. 2034, 23 L.Ed.2d 685. 
Search warrant. An order in writing, issued by a 
justice or other magistrate, in the name of the state, 
directed to a sheriff, constable, or other officer, authoriz
ing him to search for and seize any property that consti
tutes evidence of the commission of a crime, contraband, 
the fruits of crime, or things otherwise criminally pos
sessed; or, property designed or intended for use or 
which is or has been used as the means of committing a 
crime. A warrant may be issued upon an affidavit or 
sworn oral testimony. Fed.R.Crim.P. 41; 18 U.S.C.A. 
§ 3101 et seq. 
The Fourth Amendment to U.S. Constitution provides 
that Clno warrants shall issue, but upon probable cause, 
supported by oath or affirmation, and particularly de-
1350 
scribing the place to be searched, and the persons or 
things to be seized." 
See also Anticipatory search warrant; Blanket search 
warrant; Exclusionary Rule; Exigent circumstances; Prob
able cause; Search. 
General search warrant. A Clgeneral warrant" for 
search is one which fails to sufficiently specify place or 
person to be searched or things to be seized and is illegal 
(under Fourth Amendment) as authorizing random or 
blanket search in discretion of police. Frey v. State, 3 
Md.App. 38, 237 A.2d 774, 779, 780. 
Search without warrant. A search without a warrant 
but incidental to an arrest is permitted if it does not 
extend beyond the person of the accused and the area 
into which the accused might reach in order to grab a 
weapon or other evidentiary items. Chimel v. Califor
nia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. See 
also Search incident to arrest; Stop and frisk. 
Seashore. That portion of land adjacent to the sea 
which is alternately covered and left dry by the ordinary 
flux and reflux of the tides. 
Seasonable. An action is seasonable when taken within 
the time agreed or if no time is agreed within a reason
able time. U.C.C. § 1-204. 
Seasonal employment. As used in compensation laws, 
as basis for determining right to and amount of compen
sation, refers to occupations which can be carried on 
only at certain seasons or fairly definite portions of the 
year, and does not include such occupations as may be 
carried on throughout entire year. 
Seat. Membership on securities or commodities ex
change. 
Seated land. Land that is occupied, cultivated, im
proved, reclaimed, farmed, or used as a place of resi
dence. Residence without cultivation, or cultivation 
without residence, or both together, impart to land the 
character of being seated. 
Seat of government. The state capitol or the town 
within a district or county where the principal govern
ment offices and officers are located; e.g. Clcounty seat." 
Seawan. The name used by the Algonquin Indians for 
the shell beads (or wampum) which passed among the 
Indians as money. 
Seaworthy. Ability to withstand ordinary stress of 
wind, waves and other weather which the vessel might 
normally be expected to encounter. Miles v. Royal 
Indem. Co., Tex.Civ.App., 589 S.W.2d 725, 729. This 
adjective, as applied to a vessel, signifies that she is 
properly constructed, prepared, manned, equipped, and 
provided, for the voyage intended. Robichaux v. Kerr 
McGee Oil Industries, D.C.La., 317 F.Supp. 587, 591. A 
seaworthy vessel must, in general, be sufficiently strong 
and staunch and equipped with appropriate appurte
nances to allow it to safely engage in trade for which it 
was intended. Texaco v. Universal Marine, Inc., D.C. 
La., 400 F.Supp. 311, 320.

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1351 
It is an implied condition of all policies of marine 
insurance, unless otherwise expressly stipulated, that 
the vessel shall be seaworthy. In marine insurance, a 
warranty of seaworthiness means that the vessel is 
competent to resist the ordinary attacks of wind and 
weather, and is competently equipped and manned for 
the voyage, with a sufficient crew, and with sufficient 
means to sustain them, and with a captain of general 
good character and nautical skill. 
A warranty of seaworthiness extends not only to the 
condition of the structure of the ship itself, but requires 
that it be properly laden, and provided with a competent 
master, a sufficient number of competent officers and 
seamen, and the requisite appurtenances and equip
ments, such as ballast, cables and anchors, cordage and 
sails, food, water, fuel, and lights, and other necessary or 
proper stores and implements for the voyage. 
See also Unseaworthy. 
S.E.C. Securities and Exchange Commission. 
Secession. The act of withdrawing from membership in 
a group. Certain states attempted unsuccessfully to 
secede from the United States at the time of the Civil 
War. 
Seck. A want of remedy by distress. Want of present 
fruit or profit, as in the case of the reversion without 
rent or other service, except fealty. See Rent. 
Second. This term, as used in law, may denote either 
sequence in point of time or inferiority or postponement 
in respect to rank, lien, order, or privilege. 
As to second Cousin; Deliverance; Distress; Mortgage; 
and Surcharge, see those titles. 
Second Amendment. The Second Amendment to the 
U.S. Constitution provides that a well regulated militia, 
being necessary to the security of a free state, the right 
of the people to keep and bear arms shall not be infring
ed. State and federal laws however regulate the sale, 
transportation and possession of firearms. 
Secondary, n. In English practice, an officer of the 
courts of king's bench and common pleas; so called 
because he was second or next to the chief officer. In 
the king's bench he was called "Master of the King's 
Bench Office," and was a deputy of the prothonotary or 
chief clerk. By St. 7 Wm. IV, and 1 Vict., c. 30, the 
office of secondary was abolished. 
Secondary, adj. Of a subsequent, subordinate, or inferi
or kind or class; generally opposed to "primary." 
As to secondary Conveyance; Easement; Evidence; 
Franchise; Meaning; Use; and Vein, see those titles. 
Secondary beneficiary. The beneficiary next in line to 
collect should the primary beneficiary be unable to do 
so. 
Secondary boycott. Any combination if its purpose and 
effect are to coerce customers or patrons, or suppliers 
through fear of loss or bodily harm, to withhold or 
withdraw their business relations from employer who is 
under attack. Wright v. Teamsters' Union Local No. 
690, 33 Wash.2d 905, 207 P.2d 662, 665. Term refers to 
SECONDARY MEANING 
refusal to work for, purchase from or handle products of 
secondary employer with whom union has no dispute, 
with object of forcing such employer to stop doing busi
ness with primary employer with whom union has dis
pute. C. Comella, Inc. v. United Farm Workers Organiz
ing Committee, 33 Ohio App.2d 61, 292 N.E.2d 647, 656. 
While secondary boycotts are generally prohibited by 
federal labor laws, such are allowed by transportation 
workers under the National Railway Labor Act. See 
also Boycott; Secondary picketing. 
Secondary distribution. In securities, the new distribu
tion of stock after it has been initially sold by the 
issuing corporation. It is not a new issue, but rather a 
public sale of stock which has previously been issued 
and held by large corporations and investors. Also, the 
sale of a large block of stock after the close of business of 
the exchange. See also Offering; Secondary offering. 
Secondary easement. An easement to accomplish the 
intended purposes of the primary easement. One which 
is appurtenant to the primary or actual easement. 
Secondary evidence. That which is inferior to primary 
or best evidence. Thus, a copy of an instrument, or oral 
evidence of its contents, is secondary evidence of the 
instrument and contents. It is that species of evidence 
which becomes admissible, when the primary or best 
evidence of the fact in question is lost or inaccessible; as 
when a witness details orally the contents of an instru
ment which is lost or destroyed. See also Circums tantial 
evidence; Hearsay; Second-hand evidence. Compare 
Best evidence. 
Secondary lender. A wholesale mortgage buyer who 
purchases first mortgages from banks and savings and 
loan associations, enabling them to restock their money 
supply and loan more money. 
Secondary liability. A liability which does not attach 
until or except upon the fulfillment of certain condi
tions; as that of a surety, or that of an accommodation 
indorser. 
Secondary market. Securities exchanges and over-the
counter markets where securities are bought and sold 
after their original issue (which took place in the pri
mary market). Proceeds of secondary market sales ac
crue to selling investors not to the company that origi
nally issued the securities. See also Primary market. 
Secondary meaning. Some words or other devices used 
as trademarks may not be distinctive when first 
adopted, but may acquire distinctiveness over time. 
When such a mark has come to signify that an item is 
produced or sponsored by a particular merchant it is 
said that the mark has secondary meaning. Types of 
marks requiring secondary meaning before they will be 
protected include (1) descriptive and misdescriptive 
terms; (2) geographically descriptive and misdescriptive 
terms and (3) surnames. Under the Lanham Act, five 
years of exclusive use of a mark is deemed prima facie 
evidence of secondary meaning. Perfect Fit Industries, 
Inc. v. Acme Quilting Co., Inc., C.A.N.Y., 618 F.2d 950, 
952.

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SECONDARY MORTGAGE MARKET 
Secondary mortgage market. A national market in 
which existing mortgages are bought and sold; usually 
on a package basis. Contrasts with the primary market 
where mortgages are originated. 
Secondary offering. See Offering; Secondary distribu
tion. 
Secondary parties. In negotiable instruments, a draw
er or endorser. U.C.C. § 3-102(1)(d). 
Secondary picketing. A form of picketing in which 
pressure is put on one business establishment with 
which there is no dispute in order to induce such busi
ness to put pressure on the business establishment with 
which the employees have a primary dispute. See also 
Secondary boycott; Secondary strike. 
Secondary strike. A strike against firms which supply 
goods and materials to the firm with which there is a 
primary dispute. See also Secondary boycott. 
Second degree crime. A crime of lesser gravity than a 
first degree crime. Some states have first, second and 
third degree crimes and the punishment for each varies 
according to the degree. See e.g. Second degree murder. 
Second degree murder. The unlawful taking of human 
life with malice, but without the other aggravating 
elements of first degree murder; i.e. without delibera
tion or premeditation. 
Second-hand evidence. Evidence which has passed 
through one or more media before reaching the witness; 
hearsay evidence. See also Circumstantial evidence; 
Hearsay; Secondary evidence. 
Second lien. One which takes rank immediately after a 
first lien on the same property and is next entitled to 
satisfaction out of the proceeds. 
Second mortgage. A mortgage on property which 
ranks in priority below a first mortgage. In title states, 
it is the transfer of the mortgagor's equity of redemption 
to secure a debt. 
Secrecy. The quality or condition of being concealed or 
secret, as the proceedings of a grand jury are to be held 
in secrecy. 
Secret. Concealed; hidden; not made public; particular
ly, in law, kept from the knowledge or notice of persons 
liable to be affected by the act, transaction, deed, or 
other thing spoken of. Something known only to one or 
a few and kept from others. 
As to secret Commit tee; Equity; Partnership, and Trust, 
see those titles. See also Secrete; Trade secret. 
Secretary. In reference to a corporation or association, 
refers to an officer charged with the direction and 
management of that part of the business of the company 
which is concerned with keeping the records, the official 
correspondence, with giving and receiving notices, coun
tersigning documents, etc. Also known sometimes as 
clerk of the corporation. 
Also a name given to several of the heads of executive 
departments in the government of the United States; as 
the "Secretary of State", "Secretary of the Interior," etc. 
1352 
Secretary General. The chief administrative officer of 
the United Nations, who is nominated by the Security 
Council and elected by the General Assembly. 
Secretary of Embassy. A diplomatic officer appointed 
as secretary or assistant to an ambassador or minister 
plenipotentiary . 
Secretary of Legation. An officer employed to attend a 
foreign mission and to perform certain duties as clerk. 
Secretary of State. The Secretary of State, as principal 
foreign policy adviser to the President, is responsible for 
the overall direction, coordination, and supervision of 
U.S. foreign relations and for the interdepartmental 
activities of the U.S. Government overseas. The Secre
tary is the first-ranking member of the Cabinet, a mem
ber of the National Security Council, and is in charge of 
the operations of the Department, including the Foreign 
Service. 
In most state governments, the official who is respon
sible for many types of formal state business, such as the 
licensing of corporations, filing of security agreements, 
etc. 
Secrete. To conceal or hide away. Particularly, to put 
property out of the reach of creditors, either by corporal
ly hiding it, or putting the title in another's name, or 
otherwise hindering creditors from levying on it or at
taching it. 
Secret lien. A lien reserved by the vendor of chattels, 
who has delivered them to the vendee, to secure the 
payment of the price, which is concealed from all third 
persons. 
Secret Service. The major powers and responsibilities 
of the U.S. Secret Service are defined in section 3056, 
Title 18, United States Code. The investigative respon
sibilities are to detect and arrest persons committing 
any offense against the laws of the United States relat
ing to coins obligations, and securities of the United 
States and of foreign governments; and to detect and 
arrest persons violating certain laws relating to the 
Federal Deposit Insurance Corporation, Federal land 
banks, electronic fund transfer frauds, credit and debit 
card frauds, false identification documents. The protec
tive responsibilities include protection of the President 
of the United States and the members of his immediate 
family; the President-elect and the members of his 
immediate family unless the members decline such pro
tection; the Vice President or other officer next in the 
order of succession to the Office of the President, and 
the members of his immediate family unless the mem
bers decline such protection; the Vice President-elect, 
and the members of his immediate family unless the 
members decline such protection; a former President 
and his wife during his lifetime; the widow of a former 
President until her death or remarriage; the minor 
children of a former President until they reach 16 years 
of age, unless such protection is declined; a visiting 
head of a foreign state or foreign government and, at the 
direction of the President, other distinguished foreign 
visitors to the United States and official representatives 
of the United States performing special missions abroad.

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In addition, 18 U.S.C.A. § 3056 authorizes the Secret 
Service to protect major Presidential and Vice Presi
dential candidates, unless such protection is declined; 
the spouse of a major Presidential or Vice Presidential 
nominee, except that such protection shall not com
mence more than 120 days prior to the general Presi
dential election. 
Sect. As applied to religious bodies, a party or body of 
persons who unite in holding certain special doctrines or 
opinions concerning religion, which distinguish them 
from others holding the same general religious belief. 
Secta /sekt;)/. In old English law, suit; attendance at 
court; the plaintiffs suit or following, i.e., the witnesses 
whom he was required, in the ancient practice, to bring 
with him and produce in court, for the purpose of 
confirming his claim, before the defendant was put to 
the necessity of answering the declaration. A survival 
from this proceeding is seen in the formula still used at 
the end of declarations, "and therefore he brings his 
suit" (et inde producit sectam). This word, in its second
ary meaning, signifies suit in the courts; lawsuit. 
Secta curire /sekt;) kyuriyiy/. In old English law, suit of 
court; attendance at court. The service, incumbent 
upon feudal tenants, of attending the lord at his court, 
both to form a jury when required, and also to answer 
for their own actions when complained of. 
Secta est pugna civilis; sicut actores armantur ac· 
tionibus, et, quasi, gladiis accinguntur, ita rei muni· 
untur exceptionibus, et defenduntur, quasi, clypeis 
/sekt;) est p�gn;) siv;)l;)s: sik;)t rektoriyz armrent;)r 
rekshiyown;)b;)s, et, kweyzay, glrediy;)s reksiIJg�nt;)r, ayt;) 
riyay myuwniy�nt;)r ;)ksepshiyown;)b;)s, et defend�nt;)r, 
kweyzay clipiy;)s/. A suit is a civil warfare; for as the 
plaintiffs are armed with actions, and, as it were, girded 
with swords, so the defendants are fortified with pleas, 
and are defended, as it were, by shields. 
Secta facienda per illam qure habet eniciam partem 
/sekt;) freshiyend;) p.lr il;)m kwiy heyb;)t ;)nish(iy);)m 
part;)m/. A writ to compel the heir, who has the elder's 
part of the co-heirs, to perform suit and services for all 
the coparceners. 
Secta qure scripto nititur a scripto variari non debet 
/sekt;) kwiy skriptow nit;)t;)r ey skriptow vreriyeray non 
deb;)t/. A suit which is based upon a writing ought not 
to vary from the writing. 
Secta regalis /sekt;) r;)geyl;)s/. In old English law, a suit 
so called by which all persons were bound twice in the 
year to attend in the sheriffs tourn, in order that they 
might be informed of things relating to the public peace. 
It was so called because the sheriffs tourn was the 
king's leet, and it was held in order that the people 
might be bound by oath to bear true allegiance to the 
king. 
Sectarian. Denominational; devoted to, peculiar to, per
taining to, or promotive of, the interest of a sect, or 
sects. In a broader sense, used to describe the activities 
of the followers of one faith as related to those of 
SECUNDUM FORMAM CHART)E 
adherents of another. The term is most comprehensive 
in scope. See also Sect. 
Sectatores /sekt;)toriyz/. Suitors of court who, among 
the Saxons, gave their judgment or verdict in civil suits 
upon the matter of fact and law. 
Secta unica tantum facienda pro pluribus hrereditati· 
bus /sekt;) yuwn;)k;) trent;)m freshiyend;) prow pl(y)ur;)b;)s 
h;)red;)teyt;)b;)s/. In old English law, a writ for an heir 
who was distrained by the lord to do more suits than 
one, that he should be allowed to do one suit only in 
respect of the land of divers heirs descended to him. 
Section. In text-books, codes, statutes, and other juridi
cal writings, the smallest distinct and numbered subdivi
sions are commonly called "sections," sometimes "arti
cles," and occasionally "paragraphs." 
Section of land. A division or parcel of land, on the 
government survey, comprising one square mile or 640 
acres. Each "township" (six miles square) is divided by 
straight lines into thirty-six sections, and these are 
again divided into half-sections and quarter-sections. 
See also Quarter section. 
Sectis non faciendis / sekt;)s non freshiyend;)s/. In old 
English law, a writ which lay for a dowress, or one in 
wardship, to be free from suit of court. 
Sectores /sektoriyz/. Lat. In Roman law, purchasers at 
auction, or public sales. 
Secular. Not spiritual; not ecclesiastical; relating to 
affairs of the present (temporal) world. 
Secular business. As used in Sunday closing laws, this 
term includes all forms of activity in the business affairs 
of life, the prosecution of a trade or employment, and 
commercial dealings, such as the making of promissory 
notes, lending money, and the like. 
Secular clergy. In ecclesiastical law, the parochial cler
gy, who perform their ministry in seculo (in the world), 
and who are thus distinguished from the monastic or 
"regular" clergy. 
Secundum /s;)k�nd;)m/. Lat. Next to; beside; immedi
ately after. In the civil and common law, according to. 
Occurring in many phrases of familiar use, as follows: 
Secundum requum et bonum /s;)k�nd;)m iykw;)m ;)t 
bown;)m/ . According to what is just and right. 
Secundum allegata et probata / s;)k�nd;)m rel;)geyt;) et 
pr;)beyt;)/. According to what is alleged and proved; 
according to the allegations and proofs. 
Secundum artem / s;)k�nd;)m art;)m/. According to the 
art, trade, business, or science. 
Secundum bonos mores / s;)k�nd;)m bownows moriyz/. 
According to good usages; according to established cus· 
tom; regularly; orderly. 
Secundum consuetudinem manerii / s;)k�nd;)m kon
SW;)t(y)uwd;)n;)m m;)niriyay/. According to the custom 
of the manor. 
Secundum formam chartre / s;)k�nd;)m form;)m kartiy /. 
According to the form of the charter (deed).

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SECUNDUM FORMAM DONI 
Secundum formam doni / s;}k�nd;}m form;}m downay /. 
According to the form of the gift or grant. See Forme
don. 
Secundum formam statuti / s;}k�nd;}m form;}m sta
tyu.wtay /. According to the form of the statute. 
Secundum legem communem /s;}k�nd;}m liyj;}m 
k;}myu.wn;}m/. According to the common law. 
Secundum naturam est commoda cujusque rei eum 
sequi, quem sequuntur incommoda / s;}k�nd;}m 
n;}t(y)ur;}m est kom;}d;} k(y)uwj�skwiy riyay iy;}m sekway 
kwem s;}kw�nt;}r inkom;}d;}/. It is according to nature 
that the advantages of anything should attach to him to 
whom the disadvantages attach. 
Secundum normam legis / s:;k�nd;}m norm;}m liyj;}s/. 
According to the rule of law; by the intendment and 
rule of law. 
Secundum regulam / s;}k�nd;}m regy;}l;}m/. According 
to the rule; by rule. 
Secundum subjectam materiam / s;}k�nd;}m s;}bjekt;}m 
m;}tiriy;}m/. According to the subject-matter. All 
agreements must be construed secundum subjectam ma
teriam if the matter will bear it. 
Secure. To give security; to assure of payment, per
formance, or indemnity; to guaranty or make certain 
the payment of a debt or discharge of an obligation. 
One "secures" his creditor by giving him a lien, mort
gage, pledge, or other security, to be used in case the 
debtor fails to make payment. 
Also, not exposed to danger; safe; so strong, stable or 
firm as to insure safety and financial security. 
See also Security. 
Secured. Supported or backed by security or collateral 
such as a secured debt for which property has been 
pledged or mortgaged. See Security. 
Secured bond. Bond backed by collateral, mortgage, or 
other type of security. Compare Debenture. 
Secured creditor. A creditor who holds some special 
pecuniary assurance of payment of his debt, such as a 
mortgage, collateral, or lien. See Secured party; Security 
interest. 
Secured loan. A loan for which some form of property 
has been pledged or mortgaged, as in the case of an 
automobile loan in which title to the vehicle is held as 
security by lender. See Collateral; Mortgage. 
Secured party. A lender, seller or other person in 
whose favor there is a security interest, including a 
person to whom accounts or chattel paper have been 
sold. When the holders of obligations issued under an 
indenture of trust, equipment trust agreement or the 
like are represented by a trustee or other person, the 
representative is the secured party. Section 9-105(1)(m) 
of the 1972 V.C.C. Code; § 9-105(1)(i) of the 1962 V.C.C. 
Code. The term also includes the assignee of the right 
to proceeds under a letter of credit. V.C.C. § 5-116(2). 
Secured transaction. Any transaction, regardless of its 
form, that is intended to create a security interest in 
1354 
personal property or fixtures, including goods, doc
uments, and other intangibles. A transaction which is 
founded on a security agreement. Such agreement cre
ates or provides for a security interest. V.C.C. 
§ 9-105(h). See Security agreement. 
Securitas /s;}kyur;}tres/. In old English law, security; 
surety. In the civil law, an acquittance or release. 
Securitatem inveniendi / s;}kyllr;}ooyt;}m ;}nviyniyen
day /. An ancient writ, lying for the sovereign, against 
any of his subjects, to stay them from going out of the 
kingdom to foreign parts; the ground whereof is that 
every man is bound to serve and defend the common
wealth as the crown shall think fit. 
Securitatis pacis / s;}kyllr;}teyt;}s peys;}s/. In old English 
law, security of the peace. A writ that lay for one who 
was threatened with death or bodily harm by another, 
against him who so threatened. 
Securities. Stocks, bonds, notes, convertible debentures, 
warrants, or other documents that represent a share in 
a company or a debt owed by a company or government 
entity. Evidences of obligations to pay money or of 
rights to participate in earnings and distribution of 
corporate assets. Instruments giving to their legal hold
ers rights to money or other property; they are there
fore instruments which have intrinsic value and are 
recognized and used as such in the regular channels of 
commerce. V.S. v. Canton, C.A.N.Y., 470 F.2d 861, 865. 
See also Bond; Consoli dated securities; Convertible se
curities; Debenture; Distribution; Growth stock; Letter 
stock; Listed security; Marketable securities; Municipal 
securities; Registration of securities; Security; Stock; 
Treasury stock; Watered stock. For marshalling of se
curities, see Marshalling assets. 
Coupon securities. See Coupons. 
Exempt securities. Those securities which need not be 
registered under provisions of Securities Act of 1933, 
§ 3; 15 V.S.C.A. §§ 77c, 78c(12). 
Securities Act of 1933. Federal law which provides for 
registration of securities which are to be sold to the 
public and for complete information as to the issuer and 
the stock offering. 15 V.S.C.A. § 77a et seq. See also 
Registration of securities; Securities Exchange Act of 1934. 
Securities Acts. Federal and state statutes governing 
the registration, offering, sale, etc. of securities. Major 
federal acts include the Securities Act of 1933 and the 
Securities Exchange Act of 1934 (q. v.). Such federal acts 
are administered by the Securities and Exchange Com
mission. The majority of the states have adopted the 
V niform Securities Act. See Registration of securities. 
Securities and Exchange Commission. The federal 
agency which administers such laws as the Securities 
Act of 1933, the Securities Exchange Act of 1934, the 
Trust Indenture Act of 1939, the Public Vtility Holding 
Company Act of 1935, the Investment Adviser's Act of 
1940 and the Investment Company Act of 1940. 15 
V.S.C.A. § 78(d). 
Securities broker. See Broker.

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1355 
Securities Exchange Act of 1934. A federal law which 
governs the operation of stock exchanges and over the 
counter trading. It requires, among other things, publi
cation of information concerning stocks which are listed 
on these exchanges. 15 U.S.C.A. § 78 et seq. See also 
Securities Act of 19 33. 
Securities exchanges. Markets for the purchase and 
sale of traditional securities at which brokers for pur
chasers and sellers may affect transactions. The best 
known and largest securities exchange is the New York 
Stock Exchange. 
Securities Investor Protection Act. Federal law which 
established Securities Investor Protection Corp., which, 
though not an agency of the U.S. Government, is de
signed to protect investors and help brokers and dealers 
in financial trouble. 15 U.S.C.A. §§ 78aaa et seq. 
Securities offering. See Issue (Securities); Offering; 
Registration of securities; Underwrite. 
Security. Protection; assurance; indemnification. The 
term is usually applied to an obligation, pledge, mort
gage, deposit, lien, etc., given by a debtor in order to 
assure the payment or performance of his debt, by 
furnishing the creditor with a resource to be used in 
case of failure in the principal obligation. Collateral 
given by debtor to secure loan. Document that indicates 
evidence of indebtedness. The name is also sometimes 
given to one who becomes surety or guarantor for anoth
er. 
Test for a "security" under securities laws is whether 
the scheme involves an investment of money in a com
mon enterprise with profits to come solely from the 
efforts of others so that whenever an investor relin
quishes control over his funds and submits their control 
to another for the purpose and hopeful expectation of 
deriving profits therefrom he is in fact investing his 
funds in a security. Investment Co. Institute v. Camp, 
D.C.D.C., 274 F.Supp. 624, 642. "Security" under Secu
rities Act of 1933, means investment in common enter
prise in which investors are purchasing interest and 
where growth of that investment is to result from efforts 
of promoter, Neuwirth Inv. Fund, Ltd., v. Swanton, 
D.C.N.Y., 422 F.Supp. 1187, 1194; and the label attached 
to the transaction is not determinative. McGovern Pla
za Joint Venture v. First of Denver Mortg. Investors, 
562 F.2d 645, 646. 
"Security" includes any note, stock, treasury stock, 
bond, debenture, evidence of indebtedness, certificate of 
interest or participation in an oil, gas or mining title or 
lease or in payments out of production under such a title 
or lease, collateral trust certificate, transferable share, 
voting trust certificate or, in general, any interest or 
instrument commonly known as a security, or any certif
icate of interest or participation, any temporary or inter
im certificate, receipt or certificate of deposit for, or any 
warrant or right to subscribe to or purchase, any of the 
foregoing. Uniform Probate Code, § 1-201. 
For purposes of the Securities Act of 1933 and the 
Securities Exchange Act of 1934, the term "security" 
embraces all investment contracts, and the test is 
SECURITY 
whether the investment is made in a common enterprise 
which is premised upon the reasonable expectation of 
profits solely from the managerial or entrepreneurial 
efforts of others; such test contains three elements: the 
investment of money; a common enterprise; and profits 
or returns derived solely from efforts of others. Felts v. 
National Account Systems Ass'n., Inc., D.C.Miss., 469 
F.Supp. 54, 63. See 15 U.S.C.A. §§ 77b(1), 78c(10). 
A note may be a security, and subject to federal 
securities laws, even if it has no fixed term and is 
payable on demand, depending on the economic realities 
of the transaction. Reves v. Ernst & Young, 110 S.Ct. 
945, 108 L.Ed.2d 47. 
The term "security" means any bond, debenture, note 
or certificate or other evidence of indebtedness, issued 
by a corporation or a government or political subdivision 
thereof, with interest coupons or in registered form, 
share of stock, voting trust certificate, or any certificate 
of interest or participation in, certificate of deposit or 
receipt for, temporary or interim certificate for, or war
rant or right to subscribe to or purchase, any of the 
foregoing; negotiable instrument; or money. I.R.C. 
§ 6323(h)(4). 
As defined in the Bankruptcy Code § 101, "security" 
includes: note, stock, treasury stock, bond, debenture, 
collateral trust certificate, preorganization certificate or 
subscription, transferable share, voting-trust certificate, 
certificate of deposit, investment contract or certificate 
of interest, etc. 
Under the U.C.C. (§ 8-102), a security is either a 
"certificated" or "uncertificated" security. See these 
terms below. 
See also Collateral; Equity security; Hybrid securities; 
Internal security acts; Investment security; Junior security 
issue; Lien; Listed security; Pledge; Risk capital test; 
Securities; Stock. 
Assessable security. A security on which a charge or 
assessment for the obligations of the issuing company 
may be made. In many instances, bank and insurance 
company stocks are assessable. 
Certificated security. A "certificated security" is a 
share, participation, or other interest in property of or 
an enterprise of the issuer or an obligation of the issuer 
which is (i) represented by an instrument issued in 
bearer or registered form; (ii) of a type commonly dealt 
in on securities exchanges or markets or commonly 
recognized in any area in which it is issued or dealt in as 
a medium for investment; and (iii) either one of a class 
or series or by its terms divisible into a class or series of 
shares, participations, interests, or obligations. U.C.C. 
§ 8-102(1)(a). 
Collateral security. Property which has been pledged or 
mortgaged to secure a loan or a sale. 
Convertible security. See Convertible securities. 
Equity security. The term "equity security" means any 
stock or similar security; or any security convertible, 
with or without consideration, into such a security; or 
carrying any warrant or right to subscribe to or pur-

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SECURITY 
chase such a security; or any such warrant or right; or 
any other security which the Securities and Exchange 
Commission shall deem to be of similar nature and 
consider necessary or appropriate, by such rules and 
regulations as it may prescribe in the public interest or 
for the protection of investors, to treat as an equity 
security. Securities Exchange Act, § 3; 15 U.S.C.A. 
§ 7Bc(U). 
(A) share in a corporation, whether or not transfer
able or denominated "stock", or similar security; (B) 
interest of a limited partner in a limited partnership; or 
(C) warrant or right, other than a right to convert, to 
purchase, sell, or subscribe to a share, security, or inter
est of a kind specified in subparagraph (A) or (B) of this 
paragraph. Bankruptcy Code § 101. 
Exempted security. A security which is not required to 
be registered under the provisions of the Securities 
Exchange Act. 15 U.S.C.A. §§ 77c, 7Bc(12). 
Government security. Any security issued or guaranteed 
as to principal or interest by the United States, or by a 
person controlled or supervised by and acting as an 
instrumentality of the Government of the United States 
pursuant to authority granted by the Congress of the 
United States; or any certificate of deposit for any of 
the foregoing. Investment Company Act, § 2; 15 U.S. 
C.A. § BOa-2(a)(16). 
Hybrid security. A security which combines features of 
both debt and equity; i.e. of both bond and stock. See 
also Hybrid securities. 
Junior security. Security with priority claim on assets 
and income subordinate to senior security. 
Listed security. A security which has been listed for 
trading on one of the stock exchanges or which has been 
listed with the Securities and Exchange Commission. 
Marketable security. A security which is of reasonable 
investment caliber and which can be easily sold on the 
market. 
Non-marketable security. A security which cannot be 
sold on the market such as certain government bonds 
and notes. It can only be redeemed by the holder. 
Also, a security which is not of investment quality. 
Outstanding security. A security which is held by an 
investor and which has not been redeemed or purchased 
back by the issuing corporation. 
Personal security. An obligation to repay a debt evi
denced by a pledge, note or bond in contrast to collateral 
security. Evidences of debt which bind the person of the 
debtor, not real property. Merrill v. National Bank, 173 
U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640. 
A person's legal and uninterrupted enjoyment of his 
life, his limbs, his body, his health, and his reputation. 
1 Bl.Comm. 129. 
Public security. Bonds, notes, certificates of indebted
ness, and other negotiable or transferable instruments 
evidencing the public debt of a state or government. 
1356 
Real security. The security of mortgages or other liens 
or encumbrances upon land. See Merrill v. National 
Bank, 173 U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640. See also 
Collateral. 
Redeemable security. Any security, other than short
term paper, under the terms of which the holder upon 
its presentation to the issuer or to a person designated 
by the issuer, is entitled (whether absolutely or only out 
of surplus) to receive approximately his proportionate 
share of the issuer's current net assets, or the cash 
equivalent thereof. Investment Company Act, § 2; 15 
U.S.C.A. § BOa-2(a)(32). 
Security for costs. See Security for costs. 
Security for good behavior. A bond or recognizance 
which the magistrate exacts from a defendant brought 
before him on a charge of disorderly conduct or threat
ening violence, conditioned upon his being of good be
havior, or keeping the peace, for a prescribed period, 
towards all people in general and the complainant in 
particular. A peace bond. 
Senior security. A security with rights that take prece
dence over those of other securities in a given capital 
structure. 
Short term security. A bond or note which matures in 
and is payable within a short span of time. Such 
securities are purchased by institutional investors for 
income rather than for growth potential. 
Treasury securities. See Treasury stock. 
Uncertificated security. An "uncertificated security" is 
a share, participation, or other interest in property or 
an enterprise of the issuer or an obligation of the issuer 
which is (i) not represented by an instrument and the 
transfer of which is registered upon books maintained 
for that purpose by or on behalf of the issuer; (ii) of a 
type commonly dealt in on securities exchanges or mar
kets; and (iii) either one of a class or series or by its 
terms divisible into a class or series of shares, partic
ipations, interests, or obligations. U.C.C. § 8-102(1)(b). 
Unlisted security. An over the counter security which is 
not listed on a stock exchange. 
Voting security. Any security presently entitling the 
owner or holder thereof to vote for the election of 
directors of a company. Investment Company Act, § 2; 
15 U.S.C.A. § BOa-2(a)(42). 
Security agreement. An agreement which creates or 
provides for a security interest between the debtor and a 
secured party. U.C.C. § 9-105(h); Bankruptcy Code 
§ 101. An agreement granting a creditor a security 
interest in personal property, which security interest is 
normally perfected either by the creditor taking posses
sion of the collateral or by filing financing statements in 
the proper public records. See Perfection of security 
interest; Purchase money security interest; Secured trans
action; Security interest. 
Security Council. The executive body of the United 
Nations, charged with the duty of preventing or 
stopping wars by diplomatic, economic or military ac-

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1357 
tion. It is composed of five permanent members and six 
additional members elected at stated intervals. 
Security deposit. Money deposited by tenant with land
lord as security for full and faithful performance by 
tenant of terms of lease, including damages to premises. 
It is refundable unless the tenant has caused damage or 
injury to the property or has breached the terms of the 
tenancy or the laws governing the tenancy. Such depos
its are regulated by statute in most states. Certain 
states also require the landlord to make a security 
deposit to cover essential repairs required on rental 
property. 
Security for costs. Payment into court in the form of 
cash, property or bond by a plaintiff or an appellant to 
secure the payment of costs if such person does not 
prevail; e.g. Fed.R.Civ.P. 65(c) requires adequate securi
ty when restraining order or preliminary injunction is 
issued. See also Costs. 
Security fund. See Client security fund. 
Security interest. Interest in property obtained pursu
ant to security agreement. In re Wilson, Bkrtcy.Pa., 25 
B.R. 61, 63. A form of interest in property which 
provides that the property may be sold on default in 
order to satisfy the obligation for which the security 
interest is given. A mortgage is used to grant a security 
interest in real property. An interest in personal prop
erty or fixtures which secures payment or performance 
of an obligation, V.C.C. §§ 1-201(37), 9-102, including 
the interest of an assignee of the proceeds of a letter of 
credit, § 5-116(2). Lien created by an agreement. 
Bankruptcy Code § 101. 
Often, the term "lien" is used as a synonym, although 
lien most commonly refers only to interests providing 
security that are created by operation of law, not 
through agreement of the debtor and creditor. Compare 
Lien. 
The term "security interest" means any interest in 
property acquired by contract for the purpose of secur
ing payment or performance of an obligation or indem
nifying against loss or liability. A security interest 
exists at any time, (A) if, at such time, the property is in 
existence and the interest has become protected under 
local law against a subsequent judgment lien arising out 
of an unsecured obligation, and (B) to the extent that, at 
such time, the holder has parted with money or money's 
worth. I.R.C. § 6323(h). 
Purchase money security interest. A secured interest 
which is created when a buyer uses the money of the 
lender to make the purchase and immediately gives to 
the lender a security interest. V.C.C. § 9-107. See 
Mortgage (Purchase money mortgage). 
Securius expediuntur negotia commissa pluribus, et 
plus vident oculi quam oculus I sekyuriy�s 
�kspiydiy;)nt�r n�gowsh(iy)� k�mis� pl(y)ur�b�s, et pl;)s 
vayd�nt ok(y)�lay kwrem oky�l�s/. Matters intrusted to 
several are more securely dispatched, and eyes see more 
than eye [i.e., "two heads are better than one"]. 
SED PER CURIAM 
Secus Isiyk�sl. Lat. Otherwise; to the contrary. This 
word is used to indicate the converse of a foregoing 
proposition, or the rule applicable to a different state of 
facts, or an exception to a rule before stated. 
Sedato animo I s�deytow ren�mow I. Lat. With settled 
purpose. 
Se defendendo I siy d�fendendow I. Lat. In defending 
himself; in self-defense. Homicide committed se defen
dendo is excusable. 
Sedente curia I s�dentiy kyUr(i)y�/. Lat. The court 
sitting; during the sitting of the court. 
Sede plena Isiydiy pliyn�/. Lat. The see being filled. 
A phrase used when a bishop's see is not vacant. 
Sedes I siydiyzl . Lat. A see; the dignity of a bishop. 
Sedge fiat I sej flretl. A tract of land below high-water 
mark. 
Sedimentation. The deposition of soil that has been 
transported from its site of origin by water, ice, wind, 
gravity or other natural means as a product of erosion. 
Sedition. Communication or agreement which has as its 
objective the stirring up of treason or certain lesser 
commotions, or the defamation of the government. Se
dition is advocating, or with knowledge of its contents 
knowingly publishing, selling or distributing any doc
ument which advocates, or, with knowledge of its pur
pose, knowingly becoming a member of any organization 
which advocates the overthrow or reformation of the 
existing form of government of this state by violence or 
unlawful means. An insurrectionary movement tending 
towards treason, but wanting an overt act; attempts 
made by meetings or speeches, or by publications, to 
disturb the tranquillity of the state. See 18 V.S.C.A. 
§ 2383 et seq. See also Alien and sedition laws; Smith Act. 
Seditious conspiracy. Vnder federal statute, it is a 
crime for two or more persons in any State or Territory 
to conspire to overthrow or put down or destroy by force 
the Government of the Vnited States. 18 V.S.C.A. 
§ 2384. 
Seditious libel. A communication written with the in
tent to incite the people to change the government 
otherwise than by lawful means, or to advocate the 
overthrow of the government by force or violence. 
Smith Act, 18 V.S.C.A. § 2385. See Alien and sedition 
laws. 
Seditious speech. Oral advocacy of the overthrow of 
the government by force or violence. See Sedition. 
Sed non allocatur I sed non rel�keyt�r I. Lat. But it is 
not allowed. A phrase used in the old reports, to signify 
that the court disagreed with the arguments of counsel. 
Sed per curiam I sed p;)r kyuriy�m/. Lat. But by the 
court. This phrase is used in the reports to introduce a 
statement made by the court, on the argument, at vari
ance with the propositions advanced by counsel, or the 
opinion of the whole court, where that is different from 
the opinion of a single judge immediately before quoted.

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SED QUlERE 
Sed qurere /sed kwiriy/. Lat. But inquire; examine 
this further. A remark indicating, briefly, that the 
particular statement or rule laid down is doubted or 
challenged in respect to its correctness. 
Seduce. To induce to surrender chastity. To lead away 
or astray. See also Seduction. 
Seduction. The act of seducing. Act of man enticing 
woman to have unlawful intercourse with him by means 
of persuasion, solicitation, promises, bribes or other 
means without employment of force. Lynn v. Shaw, 
Okl., 620 P.2d 899, 902. See e.g. Model Penal Code 
§ 213.3(1)(d) (inducement by promise of marriage). 
Many statutes provide that a subsequent marriage is a 
bar to prosecution. Also, by statute in some states, 
actions for seduction of a person over age of legal con
sent are prohibited. See Heart balm statutes. 
Sed vide / sed vaydiy /. Lat. But see. This remark, 
followed by a citation, directs the reader's attention to 
an authority or a statement which conflicts with or 
contradicts the statement or principle laid down. 
See. The circuit of a bishop's jurisdiction; or his office 
or dignity, as being bishop of a given diocese. 
Seed money. A venture capitalist's initial contribution 
toward the financing or capital requirements of a new 
business. Seed money frequently takes the form of a 
subordinated loan or an investment in convertible bonds 
or convertible preferred shares. Seed money provides 
the basis for additional capitalization to accommodate 
growth. See also Venture capital. 
Segregation. The act or process of separation. The 
unconstitutional policy and practice of separating people 
on the basis of color, nationality, religion, etc. in housing 
and schooling. See De facto segregation; De jure segre
gation. 
Seignior / seyn(i)y;}r /. In its general signification, means 
"lord," but in law it is particularly applied to the lord of 
a fee or of a manor; and the fee, dominions, or manor of 
a seignior is thence termed a "seigniory," i.e., a lordship. 
He who is a lord, but of no manor, and therefore unable 
to keep a court, is termed a "seignior in gross." 
Seigniorage /seyny;}r;}j/. A royalty or prerogative of 
the sovereign, whereby an allowance of gold and silver, 
brought in the mass to be exchanged for coin, is claimed. 
Mintage; the charge for coining bullion into money at 
the mint. 
A sum equivalent to the difference between interest 
payable upon a mortgage held by a title insurance and 
mortgage company at the rate named therein for any 
period and the interest payable for such period on secu
rities issued by the company with respect to such mort
gage, at the rate named in such securities. Commission
er of Insurance v. Conveyancers Title Ins. & Mortg. Co., 
300 Mass. 457, 15 N.E.2d 820, 822. 
Seignioress /seyny;}r;}s/. A female superior. 
Seigniory /seyny;}ray/. In English law, a lordship; a 
manor. The rights of a lord, as such, in lands. 
Seisi /siyzay/. In old English law, seised; possessed. 
1358 
Seisin / siyz;}n/ . Possession of real property under claim 
of freehold estate. The completion of the feudal investi
ture, by which the tenant was admitted into the feud, 
and performed the rights of homage and fealty. Posses
sion with an intent on the part of him who holds it to 
claim a freehold interest. Right to immediate posses
sion according to the nature of the estate. Williams v. 
Swango, 365 IlL 549, 7 N.E.2d 306, 309. 
Actual seisin. Possession of the freehold by the pedis 
positio of one's self or one's tenant or agent, or by 
construction of law, as in the case of a state grant or a 
conveyance under the statutes of uses, or (probably) of 
grant or devise where there is no actual adverse posses
sion; it means actual possession as distinguished from 
constructive possession or possession in law. 
Constructive seisin. Seisin in law where there is no 
seisin in fact; as where the state issues a patent to a 
person who never takes any sort of possession of the 
lands granted, he has constructive seisin of all the land 
in his grant, though another person is at the time in 
actual possession. 
Covenant of seisin. See Covenant. 
Equitable seisin. A seisin which is analogous to legal 
seisin; that is, seisin of an equitable estate in land. 
Thus a mortgagor is said to have equitable seisin of the 
land by receipt of the rents. 
Livery of seisin. Delivery of possession; called, by the 
feudists, "investiture." 
Primer seisin. In old English law, the right which the 
king had, when any of his tenants died seised of a 
knight's fee, to receive of the heir, provided he were of 
full age, one whole year's profits of the lands, if they 
were in immediate possession; and half a year's profits, 
if the lands were in reversion, expectant on an estate for 
life. 2 BLComm. 66. 
Quasi seisin. A term applied to the possession which a 
copyholder has of the land to which he has been admit
ted. The freehold in copyhold lands being in the lord, 
the copyholder cannot have seisin of them in the proper 
sense of the word, but he has a customary or quasi seisin 
analogous to that of a freeholder. 
Seisin in deed. Actual possession of the freehold; the 
same as actual seisin or seisin in fact. Roetzel v. Beal, 
196 Ark. 5, 116 S.W.2d 591, 593. 
Seisin in fact. Possession with intent on the part of him 
who holds it to claim a freehold interest; the same as 
actual seisin. 
Seisin in law. A right of immediate possession accord
ing to the nature of the estate. As the old doctrine of 
corporeal investiture is no longer in force, the delivery 
of a deed gives seisin in law. 
Seisina / siyz;}n;}/. L. Lat. Seisin. 
Seisina facit stipitem /siyz;}n;} feys;}t stip;}t;}m/. Seisin 
makes the stock. 2 Bl.Comm. 209. 
Seisina habenda /siyz;}n;} h;}bend;}/. A writ for delivery 
of seisin to the lord, of lands and tenements, after the

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sovereign, in right of his prerogative, had had the year, 
day, and waste on a felony committed, etc. 
Seize /siyz/. To put in possession, invest with fee sim
ple, be seized of or in, be legal possessor of, or be holder 
in fee simple. Hanley v. Stewart, 155 Pa.Super. 535, 39 
A.2d 323, 326. To "seize" means to take possession of 
forcibly, to grasp, to snatch or to put in possession. 
State v. Dees, Fla.App., 280 So.2d 51, 52. See Seisin. 
Seized. A person is "seized" within Fourth Amendment 
when police officer restrains person's freedom to walk 
away. State v. Ochoa, 112 Ariz. 582, 544 P.2d 1097, 
1099. It exists when reasonable person would feel that 
he was not free to leave. U.S. v. Albert, C.A.N.C., 816 
F.2d 958, 960. See Seizure. 
The status of legally owning and possessing real es
tate. See Seisin. 
Seizin / siyz:ml . See Seisin. 
Seizure. The act of taking possession of property, e.g., 
for a violation of law or by virtue of an execution of a 
judgment. Term implies a taking or removal of some
thing from the possession, actual or constructive, of 
another person or persons. Molina v. State, 53 Wis.2d 
662, 193 N.W.2d 874, 877. 
The act performed by an officer of the law, under the 
authority and exigence of a writ, in taking into the 
custody of the law the property, real or personal, of a 
person against whom the judgment of a competent court 
has passed, condemning him to pay a certain sum of 
money, in order that such property may be sold, by 
authority and due course of law, to satisfy the judgment. 
Or the act of taking possession of goods in consequence 
of a violation of public law. 
A "seizure" of property (under Fourth Amendment) 
occurs when there is some meaningful interference with 
an individual's possessory interest in that property. 
U.S. v. Jacobsen, U.S.Minn., 466 U.S. 109, 104 S.Ct. 
1652, 1656, 80 L.Ed.2d 85. 
Seizure of an individual, within the Fourth Amend
ment, connotes the taking of one physically or construc
tively into custody and detaining him, thus causing a 
deprivation of his freedom in a significant way, with 
real interruption of his liberty of movement. U.S. v. 
Albert, C.A.N.C., 816 F.2d 958. Such occurs not only 
when an officer arrests an individual, but whenever he 
restrains the individual's freedom to walk away. Robins 
v. Harum, C.A.Wash., 773 F.2d 1004, 1009. See Fed.R. 
Crim.P. 41; 18 U.S.C.A. § 3101 et seq. See also Search. 
See also Attachment; Capture; Confiscate; Forfeiture; 
Garnishment; Impound; Levy. 
"Search" distinguished. A "search" is a probing or 
exploration for something that is concealed or hidden 
from the searcher, whereas a "seizure" is a forcible or 
secretive dispossession of something against the will of 
the possessor or owner. U. S. v. Marti, D.C.N.Y., 321 
F.Supp. 59, 63. See also Search. 
Select. To take by preference from among others; to 
pick out; to cull. 
SELF·EMPLOYMENT TAX 
Select council. The name given, in some states, to the 
upper house or branch of the council of a city. 
Selecti judices /s�lektay juwd�siyz/. Lat. In Roman 
law, judges who were selected very much like our juries. 
They were returned by the prretor, drawn by lot, subject 
to be challenged, and sworn. 3 Bl.Comm. 366. 
Selective service system. An executive branch agency 
charged with the registration, examination, classifica
tion, selection, assignment, delivery for induction, and 
maintenance of records of persons subject to military 
service. It is maintained as an active standby organiza
tion when military personnel needs are met by a vol
unteer program. 50 U.S.C.A.App. § 460. 
Selectmen. The name of certain municipal officers, in 
the New England states, elected by the towns to transact 
their general public business, and possessing certain 
executive powers. 
Self-dealing. Exists where person in fiduciary or confi
dential relationship uses property of another for his own 
personal benefit. For example, where a trustee, acting 
for himself and also as "trustee," a relation which 
demands strict fidelity to others, seeks to consummate a 
deal wherein self-interest is opposed to duty. Cestui que 
trust has in such case the election to affirm or disaffirm, 
unless countervailing equities have intervened. See also 
Conflict of interest; Insider; Insider trading. 
Self-defense. The protection of one's person or property 
against some injury attempted by another. The right of 
such protection. An excuse for the use of force in 
resisting an attack on the person. 
Various state criminal statutes define the conditions 
of self defense. The Model Penal Code provides: "A 
person is justified in the use of force against an aggres
sor when and to the extent it appears to him and he 
reasonably believes that such conduct is necessary to 
defend himself or another against such aggressor's im
minent use of unlawful force. One who is not the 
aggressor in an encounter is justified in using a reason
able amount of force against his adversary when he 
reasonably believes: (a) that he is in immediate danger 
of unlawful bodily harm from his adversary and (b) that 
the use of such force is necessary to avoid this danger. 
It may be reasonable to use nondeadly force against the 
adversary's nondeadly attack (i.e., one threatening only 
bodily harm), and to use deadly force against his deadly 
attack (an attack threatening death or serious bodily 
harm), but it is never reasonable to use deadly force 
against his nondeadly attack." Model Penal Code 
§ 3.04. 
The principles of self-defense as a justification for the 
torts or assault and battery are very similar to those 
governing self-defense as a justification in the criminal 
law. See Restatement, Second, Torts, §§ 633, 65, 67 
(1965). 
See also Apparent danger; Defense of others; Imminent 
danger; Justification; Reasonable force. 
Self-employment tax. The social security tax imposed 
on the net earnings of a self-employed individual. The

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SELF-EMPLOYMENT TAX 
self-employment tax is assessed in addition to an income 
tax up to an annual maximum, which is reduced by any 
wages previously subject to social security taxes. 
Self-executing. Anything (e.g., a document or legisla
tion) which is effective immediately without the need of 
intervening court action, ancillary legislation, or other 
type of implementing action. 
Self-executing constitutional provision. Term has 
reference to provisions which are immediately effective 
without the necessity of ancillary legislation. Constitu
tional provision is "self-executing" if it supplies suffi
cient rule by which right given may be enjoyed or duty 
imposed enforced; constitutional provision is not "self
executing" when it merely indicates principles without 
laying down rules giving them force of law. 
Self-executing judgments. Those requiring no affirma
tive action of the court or action under process issued by 
the court to execute them. 
Self-help. Taking an action in person or by a represent
ative outside of the normal legal process with legal 
consequences, whether the action is legal or not; for 
example, a "self-help eviction" may be a landlord's re
moving the tenant's property from an apartment and 
locking the door against the tenant. Self-help reposses
sion (i.e. without judicial process) of goods by creditor on 
default is permitted under U.C.C. § 9-503, if such can be 
done "without breach of the peace." 
Self-incrimination. Acts or declarations either as testi
mony at trial or prior to trial by which one implicates 
himself in a crime. The Fifth Amendment, U .S.Const., 
as well as provisions in many state constitutions and 
laws, prohibit the government from requiring a person 
to be a witness against himself involuntarily or to fur
nish evidence against himself. It is the burden of the 
government to accuse and to carry the burden of proof 
of guilt. The defendant cannot be compelled to aid the 
government in this regard. See 18 U.S.C.A. § 6001 et 
seq. See also Compuls ory self-incrimination; Link-in-chain; 
Privilege against self-incrimination; Taking the Fifth. 
Self-insurance. The practice of setting aside a fund to 
meet losses instead of insuring against such through 
insurance. A common practice of business is to self-in
sure up to a certain amount, and then to cover any 
excess with insurance. Workers' compensation obli
gations may also be met through this method if statu
tory requirements are met. 
Self-murder, self-destruction, or self-slaughter. See 
Felo de se; Suicide. 
Self serving declaration. A species of hearsay evidence 
consisting of an extrajudicial declaration by a party to 
an action, the import of which is to prove an essential 
element of his case. Such statements are inadmissible 
unless they fall under a recognized category of exception 
to the hearsay rule such as a business entry, declaration 
of a deceased party, etc., or unless they are offered for a 
non-hearsay purpose such as the fact that the party 
made the statement and not for the truth of the state
ment. Statement, oral or written, or equivalent act, by 
1360 
or on behalf of a party which if admitted would consti
tute evidence in his favor. Werdell v. Turzynski, 128 
Ill.App.2d 139, 262 N.E.2d 833, 838. See Fed.Evid.R. 
803. 
Sell. To dispose of by sale (q. v.). To transfer title or 
possession of property to another in exchange for valu
able consideration. K.C.S., Ltd. v. East Main Street 
Land Development Corp., 40 Md.App. 196, 388 A.2d 181, 
183. 
Seller. Vendor; one who has contracted to sell property. 
A person who sells or contracts to sell goods. U.C.C. 
§ 2-103(1)(d). 
One who sells anything; the party who transfers 
property in the contract of sale. The correlative is 
"buyer," or "purchaser." These terms are, however, 
generally not used in reference to the persons concerned 
in a transfer of real estate, it being more customary to 
use "vendor" and "purchaser," or "vendee" in that case. 
Test of whether a person is a "seller" of unregistered 
securities, so as to be liable to the buyer under the 
Securities Act, is whether such person is the "proximate 
cause" of the sale. Lewis v. Walston & Co., Inc., C.A. 
Fla., 487 F.2d 617, 621. 
Seller's market. A description of a market in which 
there is more demand for a security, product, or proper
ty than there is available supply. Prices rise in a 
seller's market. 
Selling stocks short. See Short sale. 
Semble. L. Fr. It seems; it would appear. This expres
sion is often used in the reports to preface a statement 
by the court upon a point of law which is not directly 
decided, when such statement is intended as an intima
tion of what the decision would be if the point were 
necessary to be passed upon. It is also used to introduce 
a suggestion by the reporter, or his understanding of the 
point decided when it is not free from obscurity. 
Semel civis semper civis / sem�l siv�s semp�r siv�s/. 
Once a citizen always a citizen. 
Semel malus semper prresumitur esse malus in eo
dem genere /sem�l mrel�s semp�r pr�z(y)uwm�t�r esiy 
mrebs in iy6wd�m jen�riy /. Whoever is once bad is 
presumed to be so always in the same kind of affairs. 
Semestria /s�mestriy�/. Lat. In the civil law, the col
lected decisions of the emperors in their councils. 
Semi-matrimonium / semiymretr�m6wn(i)y�m/. Lat. In 
Roman law, half-marriage. Concubinage was so called. 
Seminary. A place of training; formerly, a school for 
young women; an educational institution for training 
priests; an institution of education. A school, academy, 
college, or university in which young persons are in
structed in the several branches of learning which may 
qualify them for their future employment, and the ori
gin of the word seems to imply a place where the seeds 
of education are sown and implanted. 
Seminaufragium /semiynofreyj(iy)�m/. Lat. In mari
time law, half-shipwreck, as where goods are cast over-

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1361 
board in a storm; also where a ship has been so much 
damaged that her repair costs more than her worth. 
Semi-plena probatio / semiypliyn� pr�beysh(iy)ow /. 
Lat. In the civil law, half-full proof; half-proof. See 
Half-proof. 
Semper /semp�r/. Lat. Always. A word which intro
duces several Latin maxims, of which some are also used 
without this prefix. 
Semper in dubiis benigniora prreferenda sunt 
/semp�r in d(y)uwbiy�s b�nigniy6r� pref�rend� s�nt/. In 
doubtful cases, the more favorable constructions are 
always to be preferred. 
Semper in dubiis id agendum est, ut quam tutissimo 
loco res sit bona fide contracta, nisi quum aperte 
contra leges scriptum est /semp�r in d(y)uwbiy�s id 
�jend�m est, �t kwrem t(y)uwtis�mow 16wkow riyz sit 
b6wn� faydiy k�ntrrekt�, naysay k(w)�m �p�rtiy k6ntr� 
liyjiyz skript�m est/. In doubtful cases, such a course 
should always be taken that a thing contracted bona 
fide should be in the safest condition, unless when it has 
been openly made against law. 
Semper in obscuris, quod minimum est sequimur 
/semp�r in �bskyur�s kwod min�m�m est sekw�m�r/. 
In obscure constructions we always apply that which is 
the least obscure. 
Semper in stipulationibus, et in ceteris contractibus, 
id sequimur quod actum est /semp�r in stipy�ley
shiy6wn�b�s, et in set�r�s k�ntrrekt�b�s, id sekw�m�r 
kwod rekt�m est/. In stipulations and in other contracts 
we follow that which was done [we are governed by the 
actual state of the facts]. 
Semper ita fiat relatio ut valeat dispositio /semp�r 
ayt� fay�t r�leysh(iy)ow �t vreliy�t disp�zish(iy)ow/. Ref
erence [of a disposition in a will] should always be so 
made that the disposition may have effect. 
Semper necessitas probandi incumbit ei qui agit 
/ semp�r n�ses�tres pr�brenday ink�mb�t iyay kwliy 
eyj�t/. The claimant is always bound to prove [the 
burden of proof lies on the actor]. 
Semper paratus /semp�r p�reyt�s/. Lat. Always 
ready. The name of a plea by which the defendant 
alleges that he has always been ready to perform what 
is demanded of him. 
Semper prresumitur pro legitimatione puerorum 
/semp�r pr�z(y)uwm�t�r prow l�jit�meyshiy6wniy p(y)u
w�r6r�m/. The presumption always is in favor of the 
legitimacy of children. 
Semper prresumitur pro matrimonio /semp�r 
pr�z(y)uwm�t�r prow mretr�m6wn(i)yow/. The presump
tion is always in favor of the validity of a marriage. 
Semper prresumitur pro negante /semp�r 
pr�z(y)uwm�t�r prow n�grentiy /. The presumption is 
always in favor of the one who denies. 
Semper prresumitur pro sententia /semp�r 
pr�z(y)uwm�t�r prow sentensh(iy)�/. The presumption 
always is in favor of a sentence. 
SENESCALLUS 
Semper qui non prohibet pro se intervenire, man
dare creditur /semp�r kwliy non pr6w(h)�b�t prow siy 
int�rv�nayriy, mrenderiy kred�t�r/. He who does not 
prohibit the intervention of another in his behalf is 
supposed to authorize it. 
Semper sexus masculinus etiam femininum sexum 
continet /semp�r seks�s mresky�layn�s iysh(iy)�m 
fem�nayn�m seks�m k6nt�n�t/. The masculine sex al
ways includes the feminine. 
Semper specialia generalibus insunt /semp�r 
speshiyeyl(i)y� jen�reyl�b�s ins�nt/. Specials are always 
included in generals. 
Senage /siyn�j/. Money paid for synodals. 
Senate. The name of the upper chamber, or less numer
ous branch, of the Congress of the United States. Also 
the name of a similar body in the legislatures of most of 
the states. 
The U.S. Senate is composed of 100 Members, 2 from 
each State, who are elected to serve for a term of 6 
years. Senators were originally chosen by the State 
legislatures. This procedure was changed by the Seven
teenth Amendment to the Constitution, adopted in 1913, 
which made the election of Senators a function of the 
people. One-third of the Senate is elected every 2 years. 
Senator. One who is a member of a senate, either of the 
United States or of a state. See Seventeenth Amend
ment. 
Senatus /s�neyt�s/. Lat. In Roman law, the senate; 
the great national council of the Roman people. The 
place where the senate met. 
Senatus consultum /s�neyt�s k�ns�lt�m/. In Roman 
law, a decision or decree of the Roman senate, having 
the force of law, made without the concurrence of the 
people. These enactments began to take the place of 
laws enacted by popular vote, when the commons had 
grown so great in number that they could no longer be 
assembled for legislative purposes. 
Senatus consultum ultimre necessitatis / s�neyt�s 
k�ns�lt�m n�ses�teyt�s/ . . A decree of the senate of the 
last necessity. The name given to the decree which 
usually preceded the nomination of a dictator. 1 Bl. 
Comm. 136. 
Senatus decreta /s�neyt�s d�kriyt�/. Lat. In the civil 
law, decisions of the senate. Private acts concerning 
particular persons merely. 
Send. Term in connection with any writing or notice 
means to deposit in the mail or deliver for transmission 
by any other usual means of communication with post
age or cost of transmission provided for and properly 
addressed and in the case of an instrument to an address 
specified thereon or otherwise agreed, or if there be 
none, to any address reasonable under the circumstanc
es. The receipt of any writing or notice within the time 
at which it would have arrived if properly sent has the 
effect of a proper sending. U.C.C. § 1-201(38). 
Senescallus /sen�skrel�s/. In old English law, a sene 
schal; a steward; the steward of a manor.

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SENESCHAL 
Seneschal /sen�sh�l/. In old European law, a title of 
office and dignity, derived from the middle ages, answer
ing to that of steward or high steward in England. 
Seneschals were originally the lieutenants of the dukes 
and other great feudatories of the kingdom, and some
times had the dispensing of justice and high military 
commands. 
Senility /s�nil�tiy/. Quality of being senile; an infirmi
ty resulting from deterioration of mind and body experi
enced in old age. Feebleness of body and mind incident 
to old age; and an incapacity to contract arising from 
the impairment of the intellectual faculties by old age. 
Senior. The elder. An addition to the name of the elder 
of two persons in the same family having the same 
name. 
With reference to debt or security interests, means 
preference over junior obligations as to claims and pay
ment. 
Senior counsel. Of two or more counsel retained on the 
same side of a cause, he is the "senior" who is the elder, 
or more important in rank or estimation, or who is 
charged with the more difficult or important parts of the 
management of the case. May also refer to "lead" 
counsel in a class or multi-district action. 
Senior interest. A debt security or preferred share that 
has a claim prior to that of junior obligations or common 
shares on a corporation's assets and earnings. An inter
est or right that takes effect or has preference over that 
of others; e.g. a person with a perfected security interest 
has a senior interest over other security holders in same 
property. Compare Junior interest. 
Seniority. Precedence or preference in position over 
others similarly situated. As used, for example, with 
reference to job seniority, worker with most years of 
service is first promoted within range of jobs subject to 
seniority, and is the last laid off, proceeding so on down 
the line to the youngest in point of service. Dooley v. 
Lehigh Valley R. Co. of Pennsylvania, 130 N.J.Eq. 75, 21 
A.2d 334, 338, 339. Term may also refer to the priority 
of a lien or encumbrance. See also Dovetail seniority; 
Priority. 
Seniority system. Any system or arrangement which 
recognizes length of service in promotions, layoffs, etc. 
Senior judge. Of several judges composing a court, the 
one who holds the oldest commission, or who has served 
the longest time under his present commission. A judge 
in the federal system who qualifies for senior status and 
who chooses such status rather than retirement; e.g. 
senior judge of U.S. District Court or Court of Appeals. 
See 28 U.S.C.A. § 136. 
Senior lien. A prior lien which has precedence as to the 
property under the lien over another lien or encum
brance. Compare Junior lien. See also Senior interest. 
Senior mortgage. A mortgage which is of superior 
priority over others; above those which are often re
ferred to as junior mortgages. Compare Junior mortgage. 
1362 
Sensus / sens�s/ . Lat. Sense, meaning, signification. 
Malo sensu, in an evil or derogatory sense. Mitiori 
sensu, in a milder, less severe, or less stringent sense. 
Sensu honesto, in an honest sense; to interpret words 
sensu honesto is to take them so as not to impute 
impropriety to the persons concerned. 
Sensus verborum est anima legis / sens�s v�rb6r�m est 
ren�m� liyj�s/. The meaning of the words is the spirit of 
the law. 
Sensus verborum est duplex-mitis et asper; et ver
ba semper accipienda sunt in mitiori sensu /sens�s 
v�rb6r�m est d(y)uwpleks-mayt�s et resp�r, et v;)rb� 
semp�r �ksipiyend� s;}nt in mishiy6ray sens(y)uw /. The 
meaning of words is twofold,-mild and harsh; and 
words are always to be received in their milder sense. 
Sensus verborum ex causa dicendi accipiendus est; 
et sermones semper accipiendi sunt secundum sub
jectam materiam / sens�s v�rb6r�m eks k6z� d�senday 
�ksipiyend�s est; et s�rm6wniyz semp�r �ksipiyenday 
s;}nt s�k;)nd�m s�bjekt�m m�tiriy�m/ . The sense of 
words is to be taken from the occasion of speaking them; 
and discourses are always to be interpreted according to 
the subject-matter. 
Sentence. The judgment formally pronounced by the 
court or judge upon the defendant after his conviction in 
a criminal prosecution, imposing the punishment to be 
inflicted, usually in the form of a fine, incarceration, or 
probation. See e.g. 18 U.S.C.A. § 3551. Judgment of 
court formally advising accused of legal consequences of 
guilt which he has confessed or of which he has been 
convicted. Sentencing may be carried out by a judge, 
jury, or sentencing council (panel or judges), depending 
on the statutes of the jurisdiction. The word is properly 
confined to criminal proceedings. In Civil cases, the 
terms "judgment," "decision," "award," "finding," etc., 
are used. Archer v. Snook, D.C.Ga., 10 F.2d 567, 569. 
For review of sentence of federal prisoner, see Post
conviction remedies. 
See also Accumu lative sentence; Community service; 
Commutation; Concurrent sentences; Consecutive sen
tences; Cumulative sentence; Definite sentence; Diver
sion program; Jail credit; Pardon; Pre-sentence hearing; 
Pre-sentence investigation; Pre-sentence report; Proba
tion; Punishment; Reprieve; Sentencing; Sentencing 
guidelines; Split sentence; Suspended sentence. 
Concurrent sentence. A sentence imposed which is to be 
served at the same time as another sentence imposed 
earlier or at the same proceeding. 
Consecutive sentence. See Cumulative sentences, below. 
Cumulative sentences. Separate sentences (each addi
tional to the others) imposed upon a defendant who has 
been convicted upon an indictment containing several 
counts, each of such counts charging a distinct offense, 
or who is under conviction at the same time for several 
distinct offenses; one of such sentences being made to 
begin at the expiration of another. Carter v. McClau
ghry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236.

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1363 
Deferred sentence. A sentence, the execution of which is 
postponed until a future time. 
Definite sentence. Sentence set by law with no discre
tion for the judge or correctional officials to individual
ize punishment. See Fixed sentence, below. 
Determinate sentence. A sentence for a fixed period of 
time. Also called Definite sentence, above. See Fixed 
sentence, below. 
Ecclesiastical sentence. In ecclesiastical procedure, 
analogous to "judgment" (q.v .) in an ordinary action. 
Final sentence. One which puts an end to a case. 
Distinguished from interlocutory. 
A definite sentence is one which puts an end to the 
suit, and regards the principal matter in question as 
concluded. An interlocutory sentence determines only 
some incidental matter in the proceedings. 
Fixed sentence. Fixed sentencing statutes specify the 
exact penalty that will follow conviction of each offense. 
See Mandatory sentence, below. See also SentenCing 
guidelines. 
Indeterminate (indefinite) sentence. A form of sentence 
to imprisonment upon conviction of crime, authorized by 
statute in several states, which, instead of fixing rigidly 
the duration of the imprisonment, declares that it shall 
be for a period "not less than" so many years "nor more 
than" so many years, or not less than the minimum 
period prescribed by statute as the punishment for the 
particular offense nor more than the maximum period, 
the exact length of the term being afterwards fixed, 
within the limits assigned by the court or the statute, by 
an executive authority (the governor, board of pardons, 
etc.), on consideration of the previous record of the 
convict, his behavior while in prison or while out on 
parole, the apparent prospect of reformation and other 
such considerations. See also Presumptive sentence, be
low. 
A sentence to incarceration with a spread of time 
between a minimum date of parole eligibility and a 
maximum discharge date. A completely indeterminate 
sentence has a minimum of one day and a maximum of 
natural life. 
Interlocutory sentence. A temporary sentence imposed 
pending final sentencing. In the civil law, a sentence on 
some indirect question arising from the principal cause. 
Life sentence. The disposition of a serious criminal case 
(e.g. capital offenses) by which the convicted defendant is 
sentenced to spend the rest of his natural life in prison. 
Mandatory sentence. Statutes in some jurisdictions re
quire a judge to sentence a convicted defendant to a 
penal institution for a prescribed time for the specific 
crime and furnish little or no room for discretion. 
These statutes generally provide that the sentence may 
not be suspended and that no probation may be imposed, 
leaving the judge with no alternative but commitment. 
See Fixed sentence, above, and SentenCing guidelines. 
SENTENCING 
Maximum sentence. A maximum sentence sets the out
er limit beyond which a prisoner cannot be held in 
custody. 
Merger of sentences. See Merger. 
Minimum sentence. The minimum time which an of
fender must spend in prison before becoming eligible for 
parole or release. A "minimum term" is a maximum 
term less good conduct time. Birch v. Anderson, 358 
F.2d 520, 526, 123 U.S.App.D.C. 153. 
Presumptive sentence. A sentence in which the judge is 
given guidelines that control the extent of the prison 
term. There is a presumptive average sentence for each 
type of offense which can be raised or lowered depending 
on the presence of mitigating or aggravating circum
stances. See also Indeterminate (indefinite) sentence, 
above. 
Sentence in absentia. Sentencing of defendant in his 
absence. 
Split sentence. A sentence in which part of the time is 
served in confinement and the balance is served on 
probation or on terms imposed by the court. See also 
Split sentence. 
Straight or flat sentence. Fixed sentence without a 
maximum or minimum. 
Suspension of sentence. This term may mean either a 
withholding or postponing the sentencing of a prisoner 
after the conviction, or a postponing of the execution of 
the sentence after it has been pronounced. In the latter 
case, it may, for reasons addressing themselves to the 
discretion of the court, be indefinite as to time, or during 
the good behavior of the prisoner. See Suspended sen
tence. 
Withheld sentence. Sentence not imposed. 
Sentencing. The postconviction stage of the criminal 
justice process in which the defendant is brought before 
the court for imposition of sentence. Usually a trial 
judge imposes sentence, but in some jurisdictions sen
tencing is performed by jury or by sentencing councils. 
For federal crimes, an individual may be sentenced 
either to a term of probation, a term of imprisonment, 
or be required to pay a fine. 18 U.S.C.A. § 3551. 
Sentencing has been held to be a "critical stage" of a 
criminal proceeding requiring assistance of appointed 
counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 
L.Ed.2d 336. 
See also Pre-sentence hearing; Pre-sentence investiga
tion; Pre-sentence report; SentenCing guidelines; Victim 
impact statement. 
Imposition of sentence. Sentence shall be imposed with
out unreasonable delay. Before imposing sentence, the 
court shall afford counsel an opportunity to speak on 
behalf of the defendant and shall address the defendant 
personally and ask him if he wishes to make a state
ment in his own behalf and to present any information 
in mitigation of punishment. The attorney for the 
government shall have an equivalent opportunity to 
speak to the court. Fed.R.Crim.P. 32(a).

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SENTENCING 
For federal crimes, the court, in determining the par
ticular sentence to be imposed, shall consider: the na
ture and circumstances of the offense and the history 
and characteristics of the defendant; the need for the 
sentence imposed; and the kinds and sentencing range 
established under the sentencing guidelines. 18 U.S. 
C.A. § 3553. See also Sentencing guidelines. 
Sentencing council. A panel of three or more judges 
which confers to determine a criminal sentence. Sen
tencing councils are not as commonly used as sentencing 
by a trial judge. 
Sentencing guidelines. Guidelines established by the 
U.S. Sentencing Commission to be followed by federal 
courts in the sentencing of those convicted of federal 
offenses. The Guidelines prescribe a range of sentences 
for each class of convicted persons as determined by 
categories of offense behavior and offender characteris
tics. 18 U.S.C.A. § 3551 et seq. Mistretta v. U.S., 109 
S.Ct. 647, 102 L.Ed.2d 714. 
Sentencing hearings. See Pre-sentencing hearing. 
Sententia /sentensh(iy)�/. Lat. In the civil law, sense; 
import; as distinguished from mere words. The deliber
ate expression of one's will or intention. The sentence 
of a judge or court. 
Sententia a non judice lata nemini debet nocere 
/sentensh(iy)� ey non juwd�siy leyt� nem�nay deb�t 
n�siriy / . A sentence pronounced by one who is not a 
judge should not harm any one. 
Sententia contra matrimonium numquam transit in 
rem judicatam /sentensh(iy)� k6ntr� mretr�m6wn(i)y�m 
n�mkwrem trrenz�t in rem juwd�keyd�m/. A sentence 
against marriage never becomes a matter finally ad
judged, i.e., res judicata. 
Sententia facit jus, et legis interpretatio legis vim 
obtinet /sentensh(iy)� feys�t j�s, et liyj�s int;}rpr�tey
sh(iy)ow liyj�s vim 6bt�n�t/. Judgment creates right, 
and the interpretation of the law has the force of law. 
Sententia facit jus, et res judicata pro veritate accipi
tur /sentensh(iy)� feys�t j�s, et riyz juwd�keyt� prow 
vehr�teytiy �ksip�t�r/. Judgment creates right, and 
what is adjudicated is taken for truth. 
Sententia interlocutoria revocari potest, definitiva 
non potest / sentensh(iy)� interlok(y )�t6r(i)y� riyv�keray 
p6wt�st, d�fin�tayv� non p6wt�stl. An interlocutory 
judgment may be recalled, but not a final. 
Sententia non fertur de rebus non liquidis 
/sentensh(iy)� non f�rt�r diy riyb�s non likw�d�s/. Sen
tence is not given upon matters that are not clear. 
SEP. See Simplified Emplo yee Pension Plan. 
Separability clause. A clause commonly found in con
tracts which provides that in the event that one or more 
provisions are declared void the balance of the contract 
remains in force. Such a provision is also commonly 
found in legislation. See also Saving clause; Severable 
contract; Severable statute. 
1364 
Separable. Capable of being separated, disjoined, or 
divided. In re Babcock, 27 C.C.P.A. 1097, 110 F.2d 665, 
667. 
Separable controversy. With respect to removal of 
case from state to federal court, 28 U.S.C.A. § 1441(c) 
provides: "Whenever a separate and independent claim 
or cause of action, which would be removable if sued 
upon alone, is joined with one or more otherwise non-re
movable claims or causes of action, the entire case may 
be removed and the district court may determine all 
. issues therein, or, in its discretion, may remand all 
matters not otherwise within its original jurisdiction." 
See American Fire & Casualty Company v. Finn, 341 
U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702. 
Separaliter /sep�reyl�d�r/. Lat. Separately. Used in 
indictments to indicate that two or more defendants 
were charged separately, and not jointly, with the com
mission of the offense in question. 
Separate, v. To disunite, divide, disconnect, or sever. 
See Sever. 
Separate. Individual; distinct; particular; disconnect
ed. Generally used in law as opposed to "joint," though 
the more usual antithesis of the latter term is "several." 
Either of these words implies division, distribution, dis
connection, or aloofness. As to separate Acknowledg
ment and Covenant, see those titles. 
Separate action. As opposed to a joint action, an action 
brought for himself alone by each of several complain
ants who are all concerned in the same transaction, but 
cannot legally join in the suit. See also Joinder; Sepa
rate trial. 
Separate and apart. Parties begin to live "separate and 
apart," for purpose of divorce statute, only where sepa
ration is coupled with independent intent by one of 
parties to dissolve marital union. Sinha v. Sinha, 515 
Pa. 14, 526 A.2d 765, 767. 
Separate but equal doctrine. The doctrine first enun
ciated in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 
41 L.Ed. 256, to the effect that equality of treatment is 
accorded when the races are provided SUbstantially 
equal facilities even though these facilities be separate. 
This rule was declared to be unconstitutional with re
spect to educational facilities in Brown v. Board of 
Education, etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 
and as to other public facilities by other Supreme Court 
decisions and by various Civil Rights Acts. 
Separate counts. Two or more criminal charges con
tained within one indictment, each count, in actuality, 
constituting a separate indictment for which the accused 
may be tried. 
Separate demise in ejectment. A demise in a declara
tion in ejectment used to be termed a "separate demise" 
when made by the lessor separately or individually, as 
distinguished from a demise made jointly by two or 
more persons, which was termed a "joint demise." No 
such demise, either separate or joint, is now necessary in 
this action.

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1865 
Separate estate. The individual property of one of two 
persons who stand in a marital or business relation, as 
distinguished from that which they own jointly or are 
jointly interested in. See also Community property; Sep
arate property. 
Separate examination. The interrogation of a married 
woman, who appears before an officer for the purpose of 
acknowledging a deed or other instrument, conducted by 
such officer in private or out of the hearing of her 
husband in order to ascertain if she acts of her own will 
and without compulsion or constraint of the husband. 
Also the examination of a witness in private or apart 
from, and out of the hearing of, the other witnesses in 
the same cause. 
Separate maintenance. Money paid by one married 
person to the other for support if they are no longer 
living as husband and wife. Commonly it is referred to 
as separate support and follows from a court order. See 
also Alimony; Support. 
Separate offenses. A person may be tried, convicted 
and sentenced for offenses which, though sharing many 
elements, are distinct. A particular act may offend 
more than one law and hence a person may be subjected 
to more than one punishment for acts arising out of the 
same event. 
Separate property. Property owned by married person 
in his or her own right during marriage. State statutes 
commonly protect such separate property rights of each 
spouse. See e.g. Mass.Gen.L.A. c. 209, § 1. See also 
Separate and marital property, below. 
Under statute governing distribution of property in 
marital dissolution proceeding includes property owned 
before marriage and maintained in separate names dur
ing marriage, property acquired during marriage solely 
from exchange of premarriage property and separately 
retained, any increase in value of separate property, gift 
or inheritance received and separately held, and proper
ty described in statute. Weast v. Weast, Mo.App., 655 
S.W.2d 752, 755. See Equitable distribution. 
Community property. In a community property jurisdic
tion, separate property is that property which belongs 
entirely to one of the spouses. Generally, it is property 
acquired before marriage or acquired after marriage by 
gift or inheritance. For purposes of community proper
ty settlement, "separate property" consists of all proper
ty brought to marriage by either spouse or acquired 
during marriage by gift, bequest, devise or descent, 
together with its rents, issues and profits. Portillo v. 
Shappie, 97 N.M. 59, 636 P.2d 878, 880. See also Com
munity property. 
Separate and marital property. A number of state di
vorce statutes use the concept of separate and marital 
property for purposes of dividing assets of the spouses on 
divorce. Such statutes generally define separate proper
ty as those assets owned by either spouse prior to the 
marriage and those acquired afterwards by gift, devise, 
or exchange for other separate property, and as marital 
property all assets acquired by either spouse during 
marriage except those which can be shown to be sepa-
SEPARATION OF POWERS 
rate. On divorce, the court is required to set aside to 
each spouse his or her separate property, and make an 
equitable division of marital property. 
Separate return. See Tax return. 
Separate support. See Separate maintenance. 
Separate trial. The separate and individual trial of 
each of several persons jointly accused of a crime. Fed. 
R.Crim.P. 14. Court may also order separate trials in 
civil actions (e.g. Fed.R.Civil P. 42) in furtherance of 
convenience or to avoid prejudice, or when separate 
trials will be conducive to expedition and economy. 
Compare Bifurcated trial; Severance of actions or claims. 
Separatim /separeytam/. Lat. In old conveyancing, 
severally. A word which made a several covenant. 
Separation. The living apart of a husband and wife. If 
court ordered it is a "legal separation," in which event 
the details of support and maintenance are often spelled 
out specifically in a document issued by the court. 
Separation agreement. Written arrangements concern
ing custody, child support, alimony and property divi
sion made by a married couple who are usually about to 
get a divorce or legal separation. 
Separation a mensa et thoro / separeyshan ey mensa et 
Dorow/. A partial dissolution of the marriage relation. 
Separation from bed and board. A species of separa
tion not amounting to a dissolution of the marriage. 
Same as separation a mensa et thoro (q. v.). 
Separation of jury. After a case has been given to the 
jury for deliberation, they are not permitted to separate 
until a verdict is reached except under the control of the 
court through officers and sheriffs. In civil cases in 
some jurisdictions this rule is relaxed generally with 
admonition from the judge not to discuss the case with ... 
anybody. See also Sequester. 
Separation of patrimony. In Louisiana probate law, 
the creditors of the succession may demand, in every 
case and against every creditor of the heir, a separation 
of the property of the succession from that of the heir. 
This is what is called the "separation of patrimony." 
The object of a separation of patrimony is to prevent 
property out of which a particular class of creditors have 
a right to be paid from being confounded with other 
property, and by that means made liable to the debts of 
another class of creditors. 
Separation of powers. The governments of states and 
the United States are divided into three departments or 
branches: the legislative, which is empowered to make 
laws, the executive which is required to carry out the 
laws, and the judicial which is charged with interpreting 
the laws and adjudicating disputes under the laws. Un
der this constitutional doctrine of "separation of powers, 
one branch is not permitted to encroach on the domain 
or exercise the powers of another branch. See U.S. 
Constitution, Articles I-III. See also Power (Constitu
tional powers).

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SEPARATION OF SPOUSES 
Separation of spouses. A cessation of cohabitation of 
husband and wife by mutual agreement, or, in the case 
of ttjudicial separation," under the decree of a court. 
Separation of spouses for a statutorily prescribed period 
is a prerequisite to ttno-fault" divorce in many states. 
See also Living separate and apart; Separation agreement; 
Separation o rder. 
Separation of witnesses. An order of the court requir
ing all witnesses, except the plaintiff and defendant, to 
remain outside the courtroom until each is called to 
testify. 
Separation order. A decree or judgment of a court 
authorizing spouses to separate and generally included 
is an order respecting custody of children and support. 
Sequamur vestigia patrum nostrorum I s�kweym�r 
vestij(iy)� pretr�m nostr6r�m/. Let us follow the foot
steps of our fathers. 
Sequatur sub suo periculo Is�kweyt�r sab s(y)uwow 
p�rik(y)�low/. In old English practice, a writ which 
issued where a sheriff had returned nihil, upon a sum
moneas ad warrantizandum, and after an alias and 
pluries had been issued. So called because the tenant 
lost his lands without any recovery in value, unless upon 
that writ he brought the vouchee into court. 
Sequela Is�kwiyl�/. L. Lat. In old English law, suit; 
process or prosecution. Sequela causre, the process of a 
cause. 
Sequela curire Is�kwiyl� kyuriyiy/. Suit of court. 
Sequela villanorum I s�kwiyb vibn6r� m/. The family 
retinue and appurtenances to the goods and chattels of 
villeins, which were at the absolute disposal of the lord. 
Sequester, v. To separate or isolate; e.g. to sequester 
jurors is to isolate them from contact with the public 
during the course of a sensational trial. See Jury. 
Civil law. To renounce or disclaim, etc.; as, for exam
ple, when a widow came into court and disclaimed 
having anything to do with her deceased husband's 
estate, she was said to sequester. The word more com
monly signifies the act of taking in execution under a 
writ of sequestratio n. 
To deposit a thing which is the subject of a controver
sy in the hands of a third person, to hold for the 
contending parties. 
To take a thing which is the subject of a controversy 
out of the possession of the contending parties, and 
deposit it in the hands of a third person. 
Equity practice. To take possession of the property of a 
defendant, and hold it in the custody of the court, until 
he purges himself of a contempt. 
International law. To confiscate; to appropriate private 
property to public use; to seize the property of the 
private citizens of a hostile power, as when a belligerent 
nation sequesters debts due from its own subjects to the 
enemy. 
1366 
Sequester, n. Is�kwest�r/. Lat. In the civil law, a 
person with whom two or more contending parties de
posited the subject-matter of the controversy. 
Sequestered account. In accounting, an account which 
has been ordered separated and impounded by order of 
the court. No disbursements may be made from this 
account without order of the court. 
Sequestrari facias Isekw�streray feysh(iy)�s/. In Eng
lish ecclesiastical practice, a process in the nature of a 
levari facias, commanding the bishop to enter into the 
rectory and parish church, and to take and sequester the 
same, and hold them until, of the rents, tithes, and 
profits thereof, and of the other ecclesiastical goods of a 
defendant, he having levied the plaintiff's debt. 3 Bl. 
Comm. 418. 
Sequestratio Isekw�streysh(iy)ow/. Lat. In the civil 
law, the separating or setting aside of a thing in contro
versy, from the possession of both parties that contend 
for it. It is two-fold,-volunt ary, done by consent of all 
parties; and necessary, when a judge orders it. 
Sequestration I sekw�streysh�nl siy· I . In general, the 
process by which property or funds are attached pending 
the outcome of litigation. See also Sequester. 
Order of ttsequestration" is intended to assure that a 
witness will testify concerning his own knowledge of the 
case without being influenced by testimony of prior 
witnesses and to strengthen role of cross-examination in 
developing facts. State v. James, La.App. 3 Cir., 447 
So.2d 580, 583. 
The separation or removal of property from the per
son in possession, pending some further action or pro
ceedings affecting the property. 
Term is also used to refer to impoundment or stoppage 
of use of budget funds by governmental agencies as a 
result of, for example, spending restrictions. See 
Gramm-Rudman-Hollings amendment. 
Contracts. A species of deposit which two or more 
persons, engaged in litigation about anything, make of 
the thing in contest with an indifferent person who 
binds himself to restore it, when the issue is decided, to 
the party to whom it is adjudged to belong. Civ.Code 
La. art. 2973. 
Debtor-creditor relations. In the law of creditors' rights, 
most often refers to an equitable form of attachment, 
although occasionally used (or misused) to identify a 
replevin-like process; very broad meaning implies any 
setting aside of a person's property to answer for the 
demands of another. 
English ecclesiastical law. The act of the ordinary in 
disposing of the goods and chattels of one deceased, 
whose estate no one claims. 
Equity practice. A writ authorizing the taking into the 
custody of the law of the real and personal estate (or 
rents, issues, and profits) of a defendant who is in 
contempt, and holding the same until he shall comply.

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1367 
International law. The seizure of the property of an 
individual, and the appropriation of it to the use of the 
government. Expropriation. 
Jury. See Jury; Sequester. 
Sequestrator I sekw�strey�r I siyo I. One to whom a se
questration is made. One appointed or chosen to per
form a sequestration, or execute a writ of sequestration. 
Sequestro habendo /s�kwestrow h�bendow /. In Eng
lish ecclesiastical law, a judicial writ for discharging of a 
sequestration of the profits of a church benefice, granted 
by the bishop at the sovereign's command, thereby to 
compel the parson to appear at the suit of another. 
Upon his appearance, the parson may have this writ for 
the release of the sequestration. 
Sequi debet potentia justitiam non prrecedere Isiyk
way deb�t p�tensh(iy)� j�stish(iy)�m non pr�siyd�riy I. 
Power should follow justice, not precede it. 
Serf. In the feudal polity, a class of persons whose social 
condition was servile, and who were bound to labor and 
perform onerous duties at the will of their lords. They 
differed from slaves only in that they were bound to 
their native soil, instead of being the absolute property 
of a master. 
Sergeant. Noncommissioned officer in armed forces. 
Officer in police force with rank below captain or lieu
tenant. 
Sergeant-at-arms. Officer appointed by, and attending 
on, a legislative body or court, whose principal duties 
are to preserve order during the sessions of such body. 
Serial bonds. A serial bond issue consists of a number 
of bonds issued at the same time but with different 
maturity dates (serially due), usually with interest rates 
varying for the different maturity dates. To be distin
guished from the series bonds (q. v.). An issue of bonds 
that mature in part on one date, another part on anoth
er date, and so on; the various maturity dates usually 
are equally spaced. Compare Series bonds. 
Serial note. A promissory note payable in installments. 
Serial right. A right reserved in a publishing contract 
between author and publisher giving the author or pub
lisher the right to have the manuscript published in 
installments in a magazine or periodical before or after 
the publication of the book. 
Seriately I sihriy�tliy I. In series, or following one after 
another. In re Flint, 32 C.C.P.A. 1116, 150 F.2d 126, 
131. 
Seriatim / siriyeyt�m /. Lat. Severally; separately; in
dividually; one by one. 
Series bonds. Groups of bonds (for example, series A, 
series B) usually issued at different times and with 
different maturities but under the authority of the same 
indenture. To be distinguished from serial bonds (q. v.). 
Serious. Important; weighty; momentous, grave, great, 
as in the phrases "serious bodily harm," "serious person
al injury," etc. 
SERMO INDEX ANIMI 
Serious and wilful misconduct. In worker's compensa
tion law, the intentional doing of something with the 
knowledge that it is likely to result in a serious injury, 
or with a wanton and reckless disregard of its probable 
consequences. 
Serious bodily injury. For purposes of first degree 
assault prosecution, is defined as any bodily injury 
which involves a substantial risk of death. People v. 
Ybarra, Colo.App., 543 P.2d 529, 532. 
Serious crime. For purpose of determining right to jury 
trial, crimes carrying more than six-month sentences 
are "serious crimes" and those carrying less are "petty 
crimes." Maita v. Whitmore, C.A.Cal., 508 F.2d 143, 
145. See Felony. 
Serious illness. In life insurance, an illness that perma
nently or materially impairs, or is likely to permanently 
or materially impair, the health of the applicant. Not 
every illness is serious. An illness may be alarming at 
the time, or thought to be serious by the one afflicted, 
and yet not be serious in the sense of that term as used 
in insurance contracts. An illness that is temporary in 
its duration, and entirely passes away, and is not attend
ed, nor likely to be attended, by a permanent or materi
al impairment of the health or constitution, is not a 
serious illness. It is not sufficient that the illness was 
thought serious at the time it occurred, or that it might 
have resulted in permanently impairing the health. 
Serjeant-at-arms. See Sergeant-at-arms. 
Serjeant at law. In England, the highest degree of the 
legal profession, having a monopoly of audience at the 
Court of Common Pleas until 1846 when the Court was 
abolished. 
Serjeanty Isarj�ntiy/. A species of tenure by knight 
service, which was due to the king only, and was distin
guished into grand and petit serjeanty. The tenant 
holding by grand serjeanty was bound, instead of attend
ing the king generally in his wars, to do some honorary 
service to the king in person, as to carry his banner or 
sword, or to be his butler, champion, or other officer at 
his coronation. Petit serjeanty differed from grand ser
jeanty, in that the service rendered to the king was not 
of a personal nature, but consisted in rendering him 
annually some small implement of war, as a bow, sword, 
arrow, lance, or the like. 
Serment Is;lrm�ntl. In old English law, oath; an oath. 
Sermo index animi I s;lrmow indeks ren�may I. Speech 
is an index of the mind. 
Sermones semper accipiendi sunt secundum subjec
tam materiam, et conditionem personarum Is�rm6w
niyz semp�r �ksipiyenday s;lnt s�k;lnd�m s�bjekt�m 
m�tiri y�m/. Language is always to be understood ac
cording to its subject-matter, and the condition of the 
persons. 
Sermo relatus ad personam intelligi debet de condi
tione personre IS;lrmow r�leyt�s eM p�rs6wn�m 
intel�jay deb�t diy k�ndishiy6wniy p�rs6wniy / . Lan-

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SEROLOGICAL TEST 
guage which is referred to a person ought to be under
stood of the condition of the person. 
Serological test. A laboratory test required in many 
states to determine the presence of venereal disease 
prior to marriage. 
Serrated. Notched on the edge; cut in notches like the 
teeth of a saw. This was anciently the method of 
trimming the top or edge of a deed of indenture. See 
Indent, v. 
Servage /s�rv�j/. In feudal law, where a tenant, besides 
payment of a certain rent, found one or more workmen 
for his lord's service. 
Servanda est consuetudo loci ubi causa agitur 
/s�rvrend� est konsw�t(y)uwdow 16wsay yuwbay k6z� 
rej�t�r / . The custom of the place where the action is 
brought is to be observed. 
Servant. An employee. One employed to perform ser
vice in master's affairs, whose physical conduct in per
formance of the service is controlled or is subject to 
right to control by the master. Reiling v. Missouri Ins. 
Co., 236 Mo.App. 164, 153 S.W.2d 79; Restatement, 
Second, Agency, § 2. A person in the employ of another 
and subject to his control as to what work shall be done 
and the means by which it shall be accomplished. Hin
son v. Culbeson-Stowers Chevrolet, Inc., 244 Ark. 853, 
427 S.W.2d 539, 542. One who is employed to render 
personal service to another otherwise than in the pur
suit of an independent calling, and who, in such service, 
remains entirely under control and direction of employ
er. Henley v. State, 59 Ga.App. 595, 2 S.E.2d 139, 142. 
A person of whatever rank or position in employ and 
subject to direction or control of another in any depart
ment of labor or business. A servant, for purposes of 
doctrine of vicarious liability, is one who is employed to 
perform services for another, and who is subject to such 
other's Ucontrol" or "r ight to control" as regards his 
physical conduct in the performance of such services. 
Gifford-Hill & Co. v. Moore, Tex.Civ.App., 479 S.W.2d 
711 , 714. 
The term is often given special meanings by statutes 
and like other words is greatly influenced by context in 
wills and other documents. 
See also Agent; Emplo yee; Fellow servant; Master and 
servant; Subservant. Compare Independent contractor. 
Servi /s�rvay/. Lat. Slaves. In old English law, bond
men; servile tenants; persons over whom their masters 
had absolute dominion. 
Service. This term has a variety of meanings, depend
ent upon the context or the sense in which used. Cen
tral Power & Light Co. v. State, Tex.Civ.App., 165 
S.W.2d 920, 925. 
Contracts. Duty or labor to be rendered by one person 
to another, the former being bound to submit his will to 
the direction and control of the latter. The act of 
serving the labor performed or the duties required. 
Occupation, condition, or status of a servant, etc. Per
formance of labor for benefit of another, or at another' s 
command; attendance of an inferior, hired helper, etc. 
1368 
Claxton v. Johnson County, 194 Ga. 43, 20 S.E.2d 606, 
610. UService" and "employment" generally imply that 
the employer, or person to whom the service is due, both 
selects and compensates the employee, or person render
ing the service. 
The term is used also for employment in one of the 
offices, departments, or agencies of the government; as 
in the phrases ucivil service," upublic service," Umilitary 
service," etc. 
Domestic relations. The uservices" of a wife, for the loss 
of which occasioned by an injury to the wife, the hus
band may recover in an action against the tort-feasor 
include whatever of aid, assistance, comfort, and society 
the wife would be expected to render to bestow upon her 
husband in the circumstances in which they were situ
ated. See Consortium. 
Feudal law. The consideration which the feudal ten
ants were bound to render to the lord in recompense for 
the lands they held of him. The services, in respect of 
their quality, were either free or base services, and, in 
respect of their quantity and the time of exacting them, 
were either certain or uncertain. 2 Bl.Comm. 60. 
Practice. The exhibition or delivery of a writ, summons 
and complaint, criminal summons, notice, order, etc., by 
an authorized person, to a person who is thereby official
ly notified of some action or proceeding in which he is 
concerned, and is thereby advised or warned of some 
action or step which he is commanded to take or to 
forbear. Fed.R.Civil Proc. 4 and 5; Fed.R.Crim.P. 4 and 
49. Pleadings, motions, orders, etc., after the initial 
summons are normally served on the party's attorney 
unless otherwise ordered by court. See Service of pro
cess, below. 
General Classification 
Civil service. See that title. 
Public utilities. The furnishing of water, heat, light and 
power, etc., services by utility. Claxton v. Johnson 
County, 194 Ga. 43, 20 S.E.2d 606, 610 . 
Salvage service. See Salvage. 
Secular service. Worldly employment or service, as con
trasted with spiritual or ecclesiastical. 
Service of process. The service of writs, complaints, 
summonses, etc., signifies the delivering to or leaving 
them with the party to whom or with whom they ought 
to be delivered or left; and, when they are so delivered, 
they are then said to have been served. In the pleading 
stage of litigation, is the delivery of the complaint to the 
defendant either to him personally or, in most jurisdic
tions, by leaving it with a responsible person at his place 
of residence. Usually a copy only is served and the 
original is shown. The service must furnish reasonable 
notice to defendant of proceedings to afford him opportu
nity to appear and be heard. Chemical Specialties Sales 
Corp. Industrial Div. v. Basic Inc., D.C.Conn., 296 
F.Supp. 11 06, 1107. Fed. R.Civil P. 4; Fed.R.Crim.P. 4. 
The various types of service of process are as follows:

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Constructive service of process. Any form of service 
other than actual personal service. Notification of an 
action or of some proceeding therein, given to a person 
affected by sending it to him in the mails or causing it 
to be published in a newspaper. Fed.R.Civil P. 4(e). 
See also Service by publication; Substituted service, 
below. 
Long arm statu tes. Laws enacted in most states which 
permit courts to acquire personal jurisdiction of non
residents by virtue of activity within the state. See 
Foreign service; Long arm statutes; Minimum contacts. 
Personal service. Actual delivery of process to person 
to whom it is directed or to someone authorized to 
receive it in his behalf. Green Mountain College v. 
Levine, 120 Vt. 332, 139 A.2d 822, 824. Personal 
service is made by delivering a copy of the summons 
and complaint to the person named or by leaving copies 
thereof at his dwelling or usual place of abode with 
some responsible person or by delivering a copy to an 
agent authorized to receive such. Special rules are also 
provided for service on infants, incompetents, corpora
tions, the United States or officers or agencies thereof, 
etc. Fed.R.Civil P. 4(d); Fed.R.Crim.P. 4(d). See also 
Found. 
Proof of service. See Proof. 
Service by publication. Service of a summons or other 
process upon an absent or nonresident defendant, by 
publishing the same as an advertisement in a designat
ed newspaper, with such other efforts to give him 
actual notice as the particular statute may prescribe. 
See also Substituted service, below. 
Substituted service. Any form of service of process 
other than personal service, such as service by mail or 
by publication in a newspaper; service of a writ or 
notice on some person other than the one directly 
concerned, for example, his attorney of record, who has 
authority to represent him or to accept service for him. 
Fed.R. Civil P. 4(d). See also Long arm statutes. 
Service charge. That charge assessed by bank against 
the expense of maintaining a customer's demand deposit 
or checking account, and is calculated on basis of a 
formula whereby bank's cost of maintaining account for 
customer is determined. U. S. v. First Nat. Bank of 
Jackson, D.C.Miss., 301 F.Supp. 1161, 1207. 
"Credit service charge" means the sum of (1) all 
charges payable directly or indirectly by the buyer and 
imposed directly or indirectly by the seller as an inci
dent to the extension of credit, including any of the 
following types of charges which are applicable: time 
price differential, service, carrying or other charge, how
ever denominated, premium or other charge for any 
guarantee or insurance protecting the seller against the 
buyer's default or other credit loss; and (2) charges 
incurred for investigating the collateral or credit-worthi
ness of the buyer or for commissions or brokerage for 
obtaining the credit, irrespective of the person to whom 
the charges are paid or payable, unless the seller had no 
notice of the charges when the credit was granted. 
Uniform Consumer Credit Code, § 2.109. 
SERVIENT TENEMENT 
Service contract. A written agreement to perform 
maintenance or repair (or both) service on a consumer 
product for a specified duration. 15 U.S.C.A. ' § 2301. 
See Warranty (Extended service warranty). 
Service establishment. Within Fair Labor Standards 
Act, an establishment which has ordinary characteris
tics of retail establishments except that services instead 
of goods are sold. An establishment the principal activi
ty of which is to furnish service to the consuming public, 
and includes barber shops, beauty parlors, shoe shining 
parlors, clothes pressing clubs, laundries and automobile 
repair shops. Fleming v. A. B. Kirschbaum Co., C.C.A. 
Pa., 124 F.2d 567, 572. 
Service life. Period of expected usefulness of an asset; 
such may not necessarily coincide with depreciable life 
for income tax purposes. 
Service mark. A mark used in the sale or advertising of 
services to identify the services of one person and distin
guish them from the services of others. West & Co., Inc. 
v. Arica Institute, Inc., C.A.N.Y., 557 F.2d 338, 340. 
The term "service mark" means any word, name, 
symbol, or device, or any combination thereof-{ 1) used 
by a person, or (2) which a person has a bona fide 
intention to use in commerce and applies to register on 
the principal register established by the Trademark Act, 
to identify and distinguish the services of one person, 
including a unique service, from the services of others 
and to indicate the source of the services, even if that 
source is unknown. Titles, character names, and other 
distinctive features of radio or television programs may 
be registered as service marks notwithstanding that 
they, or the programs, may advertise the goods of the 
sponsor. 15 U.S.C.A. § 1127. Compare Trademark; 
Tradename. 
Service occupation tax. Tax imposed on persons mak
ing sales of service and is computed as a percentage of 
net cost to servicemen of tangible personal property 
transferred as an incident to such sale. Hagerty v. 
General Motors Corp., 14 Ill.App.3d 33, 302 N.E.2d 678, 
681. 
Service of process. See Service. 
Services. Things purchased by consumers that do not 
have physical characteristics (e.g., services of doctors, 
lawyers, dentists, repair personnel). 
Service warranty. See Warranty (Extended service war
ranty). 
Servicing. See Service charge. 
Serviens narrator / s�rv(i)yenz n;)rey;)r /. A serjeant-at
law (q.v.). 
Servient / s�rv(i)y;)nt/ . Serving; subject to a service or 
servitude. A servient estate is one which is burdened 
with a servitude. 
Servient tenement / s�rv(i)y;)nt ten;}m;}ntl. The person 
whose land is subject to an easement. An estate in 
respect of which a service is owing, as the dominant 
tenement is that to which the service is due. Northwest
ern Improvement Co. v. Lowry, 104 Mont. 289, 66 P.2d

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SERVIENT TENEMENT 
792, 795. An estate burdened with a servitude. Most 
commonly a parcel of land subject to an easement for 
the benefit of another parcel (dominant tenement). See 
also Dominant estate or tenement. 
Servitia personalia sequuntur personam Is�rvish(iy)� 
p;)rs�neyl(i)y� s�kw;}nt�r p�rs6wn�m /. Personal services 
follow the person. 
Servitiis acquietandis Is�rvish(iy)�s �kway�trend�s/. A 
judicial writ for a man distrained for services to one, 
when he owes and performs them to another, for the 
acquittal of such services. 
Servitium Is�rvish(iy)�m/. Lat. In feudal and old Eng
lish law, the duty of obedience and performance which a 
tenant was bound to render to his lord, by reason of his 
fee. 
Servitium feodale et prrediale Is�rvish(iy)�m fyuwdey
liy et prediyeyliy I. A personal service, but due only by 
reason of lands which were held in fee. 
Servitium forinsecum Is�rvish(iy)�m f�rinz�k�m /. For
insec, foreign, or extra service; a kind of service that 
was due to the king, over and above ({oris) the service 
due to the lord. 
Servitium, in lege Angilre, regulariter accipitur pro 
servitio quod per tenentes dominis suis debetur ra
tione feodi sui Is�rvish(iy)�m, in liyjiy rel)gliyiy, 
regy�ler�t�r �ksip�t�r prow s�rvish(iy)ow kwod p;)r 
t�nentiyz d6m�n�s s(y)uw�s d�biyt�r rreshiy6wniy fyuw
day s(y)uway I. Service, by the law of England, means 
the service which is due from the tenants to the lords, 
by reason of their fee. 
Servitium intrinsecum Is�rvish(iy)�m intrinz�k�m/. 
Intrainsic or ordinary service; the ordinary service due 
the chief lord, from tenants within the fee. 
Servitium liberum Is�rvish(iy)�m lib�r�m /. A service 
to be done by feudatory tenants, who were called "liberi 
homines, " and distinguished from vassals, as was their 
service, for they were not bound to any of the base 
services of plowing the lord's land, etc., but were to find 
a man and horse, or go with the lord into the army, or to 
attend the court, etc. 
Servitium regale Is�rvish(iy)�m r�geyliy/. Royal ser
vice, or the rights and prerogatives of manors which 
belong to the king as lord of the same, and which were 
generally reckoned to be six, viz.: Power of judicature, 
in matters of property; power of life and death, in 
felonies and murder; a right to waifs and strays; assess
ments; minting of money; and assise of bread, beer, 
weights, and measures. 
Servitium scuti Is�rvish(iy)�m sk(y)uwtay/. Service of 
the shield; that is, knight-service. 
Servitium socre Is�rvish(iy)�m s6wsiy/. Service of the 
plow; that is, socage. 
Servitors of bills I s;}rv�t�rz �v bilz/. In old English 
practice, servants or messengers of the marshal of the 
king's bench, sent out with bills or writs to summon 
1370 
persons to that court. Thereafter commonly called "tip
staves." 
Servitude. The state of a person who is subjected, 
voluntarily or otherwise, to another person as his serv
ant. A charge or burden resting upon one estate for the 
benefit or advantage of another; a species of incorporeal 
right derived from the civil law (see Servitus) and close
ly corresponding to the "easement" of the common-law, 
except that "servitude" rather has relation to the bur
den or the estate burdened, while "easement" refers to 
the benefit or advantage or the estate to which it ac
crues. 
Classification 
All servitudes which affect lands may be divided into 
two kinds,-per sonal and real. Personal servitudes are 
those attached to the person for whose benefit they are 
established, and terminate with his life. This kind of 
servitude is of three sorts,-usufruct, use, and hab
itation. Real servitudes, which are also called "predial" 
or "landed" servitudes, are those which the owner of an 
estate enjoys on a neighboring estate for the benefit of 
his own estate. They are called "predial" or "landed" 
servitudes because, being established for the benefit of 
an estate, they are rather due to the estate than to the 
owner personally. Frost-Johnson Lumber Co. v. Sall
ing's Heirs, 150 La. 756, 91 So. 207, 245; Tide-Water 
Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 354. 
Real servitudes are divided, in the civil law, into rural 
and urban servitudes. Rural servitudes are such as are 
established for the benefit of a landed estate; such, for 
example, as a right of way over the servient tenement, 
or of access to a spring, a coal-mine, a sand-pit, or a 
wood that is upon it. Urban servitudes are such as are 
established for the benefit of one building over another. 
(But the buildings need not be in the city, as the name 
would apparently imply.) They are such as the right of 
support, or of view, sewer, or the like. 
Servitudes are also classed as positive and negative. A 
positive servitude is one which obliges the owner of the 
servient estate to permit or suffer something to be done 
on his property by another. A negative servitude is one 
which does not bind the servient proprietor to permit 
something to be done upon his property by another, but 
merely restrains him from making a certain use of his 
property which would impair the easement enjoyed by 
the dominant tenement. Rowe v. Nally, 81 Md. 367, 32 
A. 198. 
Involuntary servitude. See that title. 
Servitus Is;}rv�t�s/. Lat. In the civil law, slavery; 
bondage; the state of service. An institution of the 
conventional law of nations, by which one person is 
subjected to the dominion of another, contrary to natu
ral right. 
Also a service or servitude; an easement. 
Servitus actus Is;rv;t;s rekt;s/. The servitude or right 
of walking, riding, or driving over another's ground. A 
species of right of way.

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1371 
Servitus altius non tollendi /s�rv�t�s relsh(iy)�s non 
tol€mday/. The servitude of not building higher. A 
right attached to a house, by which its proprietor can 
prevent his neighbor from building his own house high
er. 
Servitus aqure ducendre /s�rv�t�s rekwiy d(y)uws€mdiy/. 
The servitude of leading water; the right of leading 
water to one's own premises through another's land. 
Servitus aqure educendre /s�rv�t�s rekwiy iyd(y)uwsen
diy /. The servitude of leading off water; the right of 
leading off the water from one's own onto another's 
ground. 
Servitus aqure hauriendre / s�rv�t�s rekwiy hohriyen
diy / . The servitude or right of draining water from 
another's spring or well. 
Servitus fumi immittendi / s�rv�t�s fyuwmay im�ten
day /. The servitude or right of leading off smoke or 
vapor through the chimney or over the ground of one's 
neighbor. 
Servitus itineris /s�rv�t�s aytin�r�s/. The servitude or 
privilege of walking, riding, and being carried over an
other's ground. A species of right of way. 
Servitus luminum /s�rv�t�s l(y)uwm�n�m/. The servi
tude of lights; the right of making or having windows or 
other openings in a wall belonging to another, or in a 
common wall, in order to obtain light for one's building. 
Servitus ne luminibus officiatur / s�rv�t�s niy 
l(y)umin�b�s �fishiyeyt�r/. A servitude not to hinder 
lights; the right of having one's lights or windows unob
structed or darkened by a neighbor's building, etc. 
Servitus ne prospectus offendatur / s�rv�t�s niy 
pr�spekt�s Ofendeyt�r /. A servitude not to obstruct 
one's prospect, i.e., not to intercept the view from one's 
house. 
Servitus oneris ferendi /s�rv�t�s 6wn�r�s f�renday/. 
The servitude of bearing weight; the right to let one's 
building rest upon the building, wall, or pillars of one's 
neighbor. 
Servitus pascendi / s�rv�t�s presenday / . The servitude 
of pasturing; the right of pasturing one's cattle on 
another's ground; otherwise called 'jus pascendi. " 
Servitus pecoris ad aquam adpulsam / s�rv�t�s pek�r�s 
red rekw�m redp�ls�m/. A right of driving one's cattle on 
a neighbor'S land to water. 
Servitus prredii rustici / s�rv�t�s priydiyay r�st�say /. 
The servitude of a rural or country estate; a rural 
servitude. 
Servitus prredii urbani / s�rv�t�s priydiyay �rbeynay / . 
The servitude of an urban or city estate; an urban 
servitude. 
Servitus prrediorum / s�rv�t�s priydiy6r�m/. A prredial 
servitude; a service, burden, or charge upon one estate 
for the benefit of another. 
Servitu8 projiciendi / s�rv�t�s pr�jishiyenday /. The ser
vitude of projecting; the right of building a projection 
SESSION LAWS 
from one 's house in the open space belonging to one's 
neighbor. 
Servitu8 prospectus / s�rv�t�s pr�spekt�s/. A right of 
prospect. This may be either to give one a free prospect 
over his neighbor's land or to prevent a neighbor from 
having a prospect over one's own land. 
Servitus stillicidii / s�rv�t�s stil�sidiyay /. The right of 
drip; the right of having the water drip from the eaves 
of one's house upon the house or ground of one's neigh
bor. 
Servitus tigni immittendi / s�rv�t�s tignay im�tenday /. 
The servitude of letting in a beam; the right of inserting 
beams in a neighbor's wall. 
Servitus vire / s�rv�t�s vayiy / . The servitude or right of 
way; the right of walking, riding, and driving over 
another's land. 
Servus /s�rv�s/. Lat. In the civil and old English law, a 
slave; a bondman. 
Sess /ses/. In English law, a tax, rate, or assessment. 
Sessio /sesh(iy)ow/. Lat. In old English law, a sitting; 
a session. Sessio parliamenti, the sitting of parliament. 
Session. The sitting of a court, legislature, council, 
commission, etc., for the transaction of its proper busi
ness. Hence, the period of time, within any one day, 
during which such body is assembled in form, and en
gaged in the transaction of business, or, in a more 
extended sense, the whole space of time from its first 
assembling to its prorogation or adjournment sine die. 
Either a day or a period of days in which a court, 
legislature, etc. carries on its business. 
Strictly speaking, the word "session," as applied to a 
court of justice, is not synonymous with the word 
"term." The "session" of a court is the time during 
which it actually sits for the transaction of judicial 
business, and hence terminates each day with the rising 
of the court. A "term", or "sitting" in current English 
practice, of court, is the period fixed by law, usually 
embracing many days or weeks, during which it shall be 
open for the transaction of judicial business and during 
which it may hold sessions from day to day. But this 
distinction is not always observed, many authorities 
using the two words interchangeably. 
See also Extra session; Extraordinary session; Lame 
duck session; Term. 
Biennial session. See that title. 
Joint session. Meeting together and commingling of the 
two houses of a legislative body, sitting and acting 
together as one body, instead of separately in their 
respective houses. 
Quarter sessions. See Quarter session courts. 
Regular session. An ordinary, general, or stated session 
(as of a legislative body), as distinguished from a special 
or extra session. 
Session laws. The name commonly given to the body of 
laws enacted by a state legislature at one of its annual 
or biennial sessions. So called to distinguish them from

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SESSION LAWS 
the "compiled laws" or "revised statutes" of the state. 
Published laws of a state enacted by each assembly and 
separately bound for the session and for extra sessions. 
The session laws are normally published on a periodic 
basis, in a pamphlet format, throughout the legislative 
session and then at the end of the session are bound, in 
the order of their enactment, into a more permanent 
form. Such session laws in addition are incorporated 
into state and federal annotated or unannotated statute 
publications. 
Set aside. To reverse, vacate, cancel, annul, or revoke a 
judgment, order, etc. 
Setback. A distance from a curb, property line, or 
structure, within which building is prohibited. Setback 
requirements are normally provided for by ordinances 
or building codes. Provision in zoning ordinance regu
lating the distance from the lot line to the point where 
improvements may be constructed. 
Set down. To "set down" a cause for trial or hearing at 
a given term is to enter its title in the calendar, list, or 
docket of causes which are to be brought on at that 
term. 
Seti. As used in mining laws, a lease. 
Set of exchange. In commercial law, foreign bills are 
usually drawn in duplicate or triplicate, the several 
parts being called respectively "first of exchange," "sec
ond of exchange," etc., and these parts together consti
tute a "set of exchange." Any one of them being paid, 
the others become void. 
Set-off. A counter-claim demand which defendant holds 
against plaintiff, arising out of a transaction extrinsic of 
plaintiffs cause of action. Remedy employed by defen
dant to discharge or reduce plaintiffs demand by an 
opposite one arising from transaction which is extrinsic 
to plaintiffs cause of action. Edmonds v. Stratton, 
Mo.App., 457 S.W.2d 228, 232. 
A claim filed by a defendant against the plaintiff 
when sued and in which he seeks to cancel the amount 
due from him or to recover an amount in excess of the 
plaintiffs claim against him. In equity practice it is 
commenced by a declaration in set-off, though under 
rules practice (which merged law and equity) it has been 
displaced by the counterclaim. Fed.R.Civil P. 13. 
The equitable right to cancel or offset mutual debts or 
cross demands, commonly used by a bank in reducing a 
customer's checking or other deposit account in satisfac
tion of a debt the customer owes the bank. 
For the distinction between set-off and recoupment, 
see Recoupment. See also Counterclai m; Offset. 
Set out. To recite or narrate facts or circumstances; to 
allege or aver; to describe or to incorporate; as, to set 
out a deed or contract. 
Settle. A word of equivocal meaning; meaning different 
things in different connections, and the particular sense 
in which it is used may be explained by the context or 
the circumstances. Accordingly, the term may be em
ployed as meaning to agree, to approve, to arrange, to 
1372 
ascertain, to liquidate, to come to or reach an agree
ment, to determine, to establish, to fix, to free from 
uncertainty, to place, or to regulate. 
Parties are said to settle an account when they go over 
its items and ascertain and agree upon the balance due 
from one to the other. And, when the party indebted 
pays such balance, he is also said to settle it. 
Under U.C.C. § 4-104(j), "settle" means to pay in cash, 
by clearing house settlement, in a charge or credit or by 
remittance, or otherwise as instructed. A settlement 
may be either provisional or final. 
See also Adjust; Liquidate; Settlement. 
Settled estate. See Estate. 
Settle up. A term, colloquial rather than legal, which is 
applied to the final collection, adjustment, and distribu
tion of the estate of a decedent, a bankrupt, or an 
insolvent corporation. It includes the processes of col
lecting the property, paying debts and charges, and 
turning over the balance to those entitled to receive it. 
Settlement. Act or process of adjusting or determining; 
an adjusting; an adjustment between persons concern
ing their dealings or difficulties; an agreement by which 
parties having disputed matters between them reach or 
ascertain what is coming from one to the other; ar
rangement of difficulties; composure of doubts or differ
ences; determination by agreement; and liquidation. 
Sowers v. Robertson, 144 Kan. 273, 58 P.2d 1105, 1107. 
Payment or satisfaction. Ledbetter v. Hall, 191 Ark. 
791, 87 S.W.2d 996, 999. In legal parlance, implies 
meeting of minds of parties to transaction or controver
sy; an adjustment of differences or accounts; a coming 
to an agreement. Ezmirlian v. Otto, 139 Cal.App. 486, 
34 P.2d 774, 778. To fix or resolve conclusively; to 
make or arrange for final disposition. Wager v. Bur
lington Elevators, Inc., 11 6 N.J .Super. 390, 282 A.2d 437, 
441. Agreement to terminate or forestall all or part of a 
lawsuit. Gorman v. Holte, 2 Dist., 164 C.A.3d 984, 211 
Cal.Rptr. 34, 37. 
Closing; the culmination of a particular transaction 
involving real property, such as the purchase and sale of 
the property, the execution of a lease or the making of a 
mortgage loan. See also Closing. 
See also Adjust; Closing; Liquidate; Mary Carter agree
ment; Out-of-court settlement; Settle. 
Contracts. Adjustment or liquidation of mutual ac
counts; the act by which parties who have been dealing 
together arrange their accounts and strike a balance. 
Also full and final payment or discharge of an account. 
Equity of settlement. The equitable right of a wife, 
when her husband sues in equity for the reduction of 
her equitable estate to his own possession, to have the 
whole or a portion of such estate settled upon herself 
and her children. Also a similar right now recognized 
by the equity courts as directly to be asserted against 
the husband. Also called the "wife's equity." 
Estates. The settlement of an estate consists in its 
administration by the executor or administrator carried 
so far that all debts and legacies have been paid and the

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1373 
individual shares of distributees in the corpus of the 
estate, or the residuary portion, as the case may be, 
definitely ascertained and determined, and accounts 
filed and passed, so that nothing remains but to make 
final distribution. "Settlement," in reference to a dece
dent's estate, includes the full process of administration, 
distribution and closing. Uniform Probate Code, 
§ 1-201. See also Final settlement, below. 
Family settlement. See Family settlement. 
Final settlement. This term, as applied to the adminis
tration of an estate, is usually understood to have refer
ence to the order of court approving the account which 
closes the business of the estate, and which finally 
discharges the executor or administrator from the duties 
of his trust. 
Structured settlement. Type of damages settlement 
whereby Defendant agrees to make periodic payments to 
injured Plaintiff over his or her life. Commonly such 
settlement consists of an initial lump-sum payment with 
future periodic payments funded with an annuity. 
Voluntary settlement. A settlement of property upon a 
wife or other beneficiary, made gratuitously or without 
valuable consideration. 
Settlement date. In stock transactions, the date upon 
which an executed order must be settled by the buyer 
paying for the securities with cash and by the seller 
delivering the securities sold. 
Settlement option. In life insurance, a provision for 
payment made by the insurer with the beneficiary or 
insured such as for lump sum, periodic payments, and 
the like. 
Settlement statement. A statement prepared by an 
escrow agent or lender, giving a complete breakdown of 
costs involved in a real estate sale. A separate state
ment is prepared for the seller and buyer. Such state
ments are regulated by the federal Real Estate Settle
ment Procedures Act. See also ClOSing Statement; RES 
PA. 
Settler. A person who, for the purpose of acquiring a 
pre-emption right, has gone upon the land in question, 
and is actually resident there. 
Settlor. The grantor or donor in a deed of settlement. 
Also, one who creates trust. Restatement, Second, 
Trusts § 3(1). 
One who furnishes the consideration for the creation 
of a trust, though in form the trust is created by anoth
er. Lehman v. Commissioner of Internal Revenue, C.C. 
A.2, 109 F.2d 99, 100. 
See also Donor; Grantor. 
Set up. To bring forward or allege, as something relied 
upon or deemed sufficient. To propose or interpose, by 
way of defense, explanation, or justification; as, to set 
up the statute of limitations, i.e., offer and rely upon it 
as a defense to a claim. 
Seventeenth Amendment. An Amendment of 1913 to 
the U.S. Constitution which transferred the election of 
SEVERABLE CONTRACT 
U.S. Senators from the State legislature to the voters of 
the State, but provided that the legislature may impow
er the governor to make a temporary appointment to fill 
a vacancy until an election can be held. 
Seventh Amendment. In suits at common law, where 
the value in controversy shall exceed twenty dollars, the 
right of trial by jury shall be preserved, and no fact tried 
by a jury, shall be otherwise reexamined in any Court of 
the United States, than according to the rules of the 
common law. This constitutional right of trial by jury is 
preserved by Fed.R.Civil P. 38. See also Trial (Trial by 
jury). 
Seven years' absence. When a person has been missing 
and his whereabouts unknown for seven or more years, 
he is presumed by law in most states to be dead. 
Sever. To separate, as one from another; to cut off from 
something; to divide. To part in any way, especially by 
violence, as by cutting, reriding, etc.; as, to sever the 
head from the body. To cut or break open or apart; to 
divide into parts. To cut through; to disjoin. In prac
tice, to insist upon a plea distinct from that of other 
codefendants. To separate the cases of multiple defen
dants in such a way as to allow separate trials for each 
or for fewer than all. 
Relief from prejudicial joinder. If it appears that a 
defendant or the government is prejudiced by a joinder 
of offenses or of defendants in an indictment or informa
tion or by such joinder for trial together, the court may 
order an election or separate trials of counts, grant a 
severance of defendants or provide whatever other relief 
justice requires. In ruling on a motion by a defendant 
for severance the court may order the attorney for the 
government to deliver to the court for inspection in 
camera any statements or confessions made by the de
fendants which the government intends to introduce in 
evidence at the trial. Fed.R.Crim.P. 14. 
Severability clause. See Saving clause; Severable stat
ute. 
Severability doctrine. If promise sued on is related to 
an illegal transaction, but is not illegal in and of itself, 
"severability doctrine" applies, and recovery should not 
be denied, if aid of illegal transaction is not relied on or 
required, or if promise sued on is remote from or collat
eral to illegal transaction, or is supported by indepen
dent consideration. Sherwood & Roberts-Yakima, Inc. 
v. Cohan, 2 Wash.App. 703, 469 P.2d 574, 578, 582. 
Severable. Admitting of severance or separation; capa
ble of being divided; separable; capable of being severed 
from other things to which it was joined, and yet main
taining a complete and independent existence. Capable 
of carrying on an independent existence; for example, a 
severable statute is one that can still be valid even if one 
part of it is struck down as invalid by a court. It is 
common for statutes to have a severability or savings 
clause (q. v.). 
Severable contract. A contract which includes two or 
more promises which can be acted on separately such 
that the failure to perform one promise does not neces-

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SEVERABLE CONTRACT 
sarily put the promisor in breach of the entire agree
ment. A contract, the nature and purpose of which is 
susceptible of division and apportionment, having two or 
more parts, in respect to matters and things contem
plated and embraced by it, not necessarily dependent 
upon each other, or intended by parties as being depend
ent. Gross v. Maytex Knitting Mills of CaL, 11 6 C.A.2d 
705, 254 P.2d 163, 167. See Separab ility clause. 
When a contract is severable, a breach may be found 
to constitute a default as to only the specific part 
breached, thus relieving the defaulting party from liabil
ity for damages for breach of the entire contract. See 
e.g., U.C.C. § 2-612 with respect to installment con
tracts. 
See also Installment contract. 
Severable statute. A statute if after an invalid portion 
of it has been stricken out, that which remains is self
sustaining and capable of separate enforcement without 
regard to the stricken portion, in which case that which 
remains should be sustained. See Saving clause; Sepa
rability clause. 
Several. More than two, often used to designate a 
number greater than one. First Nat. Trust & Savings 
Bank of San Diego v. Industrial Accident Commission, 
213 Cal. 322, 2 P.2d 347, 351. Each particular, or a 
small number singly taken. Nashville, C. & St. L. Ry. v. 
Marshall County, 161 Tenn. 236, 30 S.W.2d 268. Sepa
rate; individual; independent; severable. In this sense 
the word is distinguished from "joint." Also exclusive; 
individual; appropriated. In this sense it is opposed to 
"common." 
As to several Count; Covenant; Demise; Fishery; Tail, 
and Tenancy, see those titles. See also Contribution; 
Joint and several liability; Joint tort-feasors. 
Several actions. Where a separate and distinct action 
is brought against each of two or more persons who are 
all liable to the plaintiff in respect to the same subject
matter, the actions are said to be "several ." If all the 
persons are joined as defendants in one and the same 
action, it is called a "joint" action. 
Several inheritance. An inheritance conveyed so as to 
descend to two persons severally, by moieties, etc. 
Several liability. Liability separate and distinct from 
liability of another to the extent that an independent 
action may be brought without joinder of others. Exists 
where each of the parties specifically promises to be 
individually bound, using language such as "each of us 
makes this promise severally, not jointly." 
Severally. Distinctly, separately, apart from others. 
When applied to a number of persons the expression 
severally liable usually implies that each one is liable 
alone. 
Severalty. Owning real or personal property without 
anyone else sharing in the ownership. A state of sepa
ration. An estate in severalty is one that is held by a 
person in his own right only, without any other person 
being joined or connected with him, in point of interest, 
during his estate therein. 2 Bl.Comm. 179. 
1374 
Severalty, estate in. An estate which is held by the 
tenant in his own right only, without any other being 
joined or connected with him in point of interest during 
the continuance of his estate. 2 Bl.Comm. 179. 
Severance. Act of severing, or state of being severed; 
partition; separation; e.g. a claim against a party may 
be severed and proceeded with separately. Fed.R.Civil 
P. 21. Separation of cases so that they can be tried 
separately. Severance divides lawsuit into two or more 
independent causes, each of which terminates in sepa
rate, final and enforceable judgment. Kansas Universi
ty Endowment Ass'n v. King, 162 Tex. 599, 350 S.W.2d 
11, 19. See also Severance of actions or claims. 
The conversion of a joint tenancy into a tenancy in 
common. The destruction of any one of the unities of a 
joint tenancy. It is so called because the estate is no 
longer a joint tenancy, but is severed. Term may also 
refer to cutting of the crops, such as corn, wheat, etc., or 
the separating of anything from the realty. 
Severance damages. Essence of severance damages is 
the loss in value to the remainder tract by reason of a 
partial taking of land and this is predicated on the 
enhanced value of the remainder tract because of its 
relationship to whole prior to the taking. U. S. v. 105.40 
Acres of Land, More or Less in Porter County, State of 
Indiana, C.A.lnd., 471 F.2d 207, 211. If only part of 
single tract is taken, owner's compensation for taking 
includes any and all elements of value arising out of 
relation of part taken to entire tract and such damages 
are often called severance damages. U. S. v. 26.81 Acres 
of Land, More or Less, in Benton County, Ark., D.C.Ark., 
244 F.Supp. 831, 839. 
Severance of actions or claims. An action of a court in 
separating the claims of multiple parties and permitting 
separate actions on each claim or on fewer than all 
claims at one time. Fed.R.Civ.P. 21. "Severance" di
vides lawsuit into two or more independent causes, each 
of which terminates in separate, final and enforceable 
judgment. Kansas University Endowment Ass'n v. 
King, 162 Tex. 599, 350 S.W.2d 11, 19. See also Sever
ance. Compare Bifurcated trial; Separate trial. 
Severance pay. Payment by an employer to employee 
beyond his wages on termination of his employment. 
Such pay represents a form of compensation for the 
termination of the employment relation, for reasons 
other than the displaced employee's misconduct, primar
ily to alleviate the consequent need for economic read
justment but also to recompense the employee for cer
tain losses attributable to the dismissal. Mace v. Conde 
Nast Publications, Inc., 155 Conn. 680, 237 A.2d 360, 
361. Generally, "it is paid when the termination is not 
due to employee's fault and many union contracts pro
vide for it. See also Golden parachute. 
Severance tax. A tax on mineral or forest products at 
the time they are removed or severed from the soil and 
usually regarded as a form of property taxation. Excise 
taxes upon privilege or right to sever natural resources 
from soil and are paid by owner of resource at time it is

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1375 
produced. United Gas Pipe Line Co. v. Whitman, La. 
App., 390 So.2d 913, 918. 
Severe. Sharp, grave, distressing, violent, extreme, tor
ture, rigorous, difficult to be endured. Traders & Gener
al Ins. Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650, 652. 
Seward, or seaward Is(y)uw;}rd/siyword/. One who 
guards the sea-coast; custos maris. 
Sex. The sum of the peculiarities of structure and func
tion that distinguish a male from a female organism; 
the character of being male or female. 
Sexual abuse. Illegal sex acts performed against a 
minor by a parent, guardian, relative, or acquaintance. 
Sexual harassment. As type of employment discrimina
tion, includes sexual advances, requests for sexual fa
vors, and other verbal or physical conduct of a sexual 
nature prohibited by Federal law (Title VII of 1964 Civil 
Rights Act) and commonly by state statutes; e.g., Mass. 
G.L. c. 151B, § 1(18). 
S.F.S. An abbreviation in the civil law for "sine fraude 
sua " (without fraud on his part). 
Shack. In old English law, the straying and escaping of 
cattle out of the lands of their owners into other unin
closed land; an intercommoning of cattle. 
Shakedown. Extortion of money with threats of physi
cal harm or, in case of police officer, threat of arrest. 
See also Blackmail; Extorti on. 
Shall. As used in statutes, contracts, or the like, this 
word is generally imperative or mandatory. In common 
or ordinary parlance, and in its ordinary signification, 
the term "shall" is a word of command, and one which 
has always or which must be given a compulsory mean
ing; as denoting obligation. The word in ordinary usage 
means "must" and is inconsistent with a concept of 
discretion. People v. Municipal Court for Los Angeles 
Judicial Dist., 149 C.A.3d 951, 197 Cal.Rptr. 204, 206. It 
has the invariable significance of excluding the idea of 
discretion, and has the significance of operating to im
pose a duty which may be enforced, particularly if 
public policy is in favor of this meaning, or when ad
dressed to public officials, or where a public interest is 
involved, or where the public or persons have rights 
which ought to be exercised or enforced, unless a con
trary intent appears. People v. O'Rourke, 124 Cal.App. 
752, 13 P.2d 989, 992. 
But it may be construed as merely permissive or 
directory (as equivalent to "may"), to carry out the 
legislative intention and in cases where no right or 
benefit to any one depends on its being taken in the 
imperative sense, and where no public or private right is 
impaired by its interpretation in the other sense. 
Wisdom v. Board of Sup'rs of Polk County, 236 Iowa 669, 
19 N.W.2d 602, 607, 608. 
Sham. False. In taxation, a transaction without sub
stance that will be disregarded for tax purposes. See 
also Dummy. 
Sham pleading. Those which are inherently false and 
must have been known by interposing party to be un-
SHARE OF CORPORATE STOCK 
true. Pentecostal Holiness Church, Inc. v. Mauney, 
Fla.App., 270 So.2d 762, 769. A "sham pleading", sub
ject to motion to strike (Fed.R.Civil P. 12(f)), is one that 
is good in form, but false in fact, and not pleaded in good 
faith. Scott v. Meek, 228 S.C. 29, 88 S.E.2d 768, 769. A 
pleading is "sham" only when it is so clearly false that it 
does not raise any bona fide issue. Fontana v. Town of 
Hempstead, 219 N.Y.S.2d 383, 384. Pleading may be 
stricken as "sham" when its allegations appear false on 
the face of the pleading. Kashmir Corp. v. Nelson, 37 
Or.App. 887, 588 P.2d 133, 136. 
Shanghaiing sailors. IshreIJhay/. Practice of drugging, 
tricking, intoxicating or otherwise forcing persons to 
become sailors-usually to secure advance money or a 
premium. 
Under federal law, the offense of procuring or induc
ing, or attempting to do so, by force, or threats, or by 
representations which one knows or believes to be un
true, or while the person is intoxicated or under the 
influence of any drug, to go on board of any vessel, or 
agree to do so, to perform service or labor thereon, such 
vessel being engaged in interstate or foreign commerce, 
on the high seas or any navigable water of the United 
States, or knowingly to detain on board such vessel such 
person, so procured or induced, or knowingly aiding or 
abetting such things. 18 U.S.C.A. § 2194. 
Share, v. To partake; enjoy with others; have a portion 
of. 
Share, n. A part or definite portion of a thing owned by 
a number of persons in common and contemplates some
thing owned in common by two or more persons and has 
reference to that part of the undivided interest which 
belongs to some one of them. A unit of stock represent
ing ownership in a corporation. "Share" means the unit 
into which the proprietary interests in a corporation are 
divided. Rev. Model Bus. Corp. Act, § 1.40. See also 
Distributive share; Share of corporate stock; Stock. 
Share and share alike. In equal shares or proportions. 
The words commonly indicate per capita division; and 
they may be applied to a division between classes as well 
as to a division among individuals. See Per capita. 
Share certificate. An instrument of a corporation certi
fying that the person therein named is entitled to a 
certain number of shares; it is prima facie evidence of 
his title thereto. Document which evidences partic
ipation in a voting trust of shares of a corporation. 
Sharecropper. Type of tenant farmer who lives on and 
works the land of another, his compensation being a 
portion of the crops minus any advances for seed, food, 
tools, etc. 
Sharecropping. Type of agricultural arrangement in 
which the landowner leases land and equipment to 
tenant or sharecropper who, in turn, gives to the land
lord a percentage of the crops as rent. 
Shareholder. See Stockholder (Shareholder). 
Share of corporate stock. The unit into which the 
proprietary interests in a corporation are divided. Rev.

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SHARE OF CORPORATE STOCK 
Model Bus. Corp. Act. § 1.40. A proportional part of 
certain rights in a corporation during its existence, and 
in the assets upon dissolution, and evidence of the stock
holder's ratable share in the distribution of the assets on 
the winding up of the corporation's business. Depart
ment of Treasury of Indiana v. Crowder, 214 Ind. 252, 15 
N.E.2d 89, 91. See Share certificate; Stock. 
Share split. See Stock (Stock split ). 
Share-warrant to bearer. A warrant or certificate of a 
corporation, stating that the bearer of the warrant is 
entitled to a certain number or amount of fully paid up 
shares or stock. Coupons for payment of dividends may 
be annexed to it. Delivery of the share-warrant oper
ates as a transfer of the shares or stock. 
Shark repellent. A slang term that refers to measures 
undertaken by a corporation to discourage unwanted 
takeover attempts. See also Poison pill; White knight. 
Sharp. A "sharp" clause in a mortgage or other security 
(or the whole instrument described as "sharp") is one 
which empowers the creditor to take prompt and sum
mary action upon default in payment or breach of other 
conditions. 
Shave. Sometimes used to denote the act of obtaining 
the property of another by oppression and extortion. 
Also used in an innocent sense to denote the buying of 
existing notes and other securities for money, at � 
discount. Hence to charge a man with using money for 
shaving is not libelous per se. 
Shelf registration. A procedure whereby a company is 
permitted to register (with SEC) all the debt and equity 
securities it plans to sell over the next several years. 
The company can then sell these securities whenever it 
chooses (e.g., in the most favorable market) without a 
registration delay. See SEC Rule 415. 
Shelley's Case, Rule in. "When the ancestor, by any 
gift or conveyance, taketh an estate of freehold, and in 
the same gift or conveyance an estate is limited, either 
mediately or immediately, to his heirs in fee or in tail, 
'the heirs' are words of limitation of the estate, and not 
words of purchase." 1 Co.Rep. 93b (1581). This rule has 
also been expressed as follows: "Where a person takes 
an estate of freehold, legally, or equitably, under a deed, 
will, or other writing, and in the same instrument there 
is a limitation by way of remainder, either with or 
without the interposition of another estate, of any inter
est of the same legal or equitable quality to his heirs, or 
heirs of his body, as a class of persons to take in 
succession from generation to generation, the limitation 
to the heirs entitles the ancestor to the whole estate." 
In re Thorne's Estate, 344 Pa. 503, 25 A.2d 811, 819. 
Intimately connected with the quantity of estate 
which a tenant may hold in realty is the antique feudal 
doctrine generally known as the "Rule in Shelley's 
Case," which is reported by Lord Coke in 1 Coke, 93b (23 
Eliz. in C.B.). This rule was not first laid down or 
established in that case, but was then simply admitted 
in argument as a well-founded and settled rule of law, 
and has always since been quoted as the "Rule in 
1376 
Shelley's Case." The rule was adopted as a part of the 
common law of this country, though it has long since 
been abolished by most states. 
Shelter. In statutes relating to the provision of food, 
clothing, and shelter for one's children, term generally 
refers to a home with proper environments, as well as 
protection from the weather. 
Sheriff. Constitutionally elected officer having responsi
bilities of law enforcement and administration of sher
iffs department. Durrell v. Franklin County Com'rs, 
Me., 532 A.2d 146, 147. The chief executive and admin
istrative officer of a county, being chosen by popular 
election. His principal duties are in aid of the criminal 
courts and civil courts of record; such as serving pro
cess, summoning juries, executing judgments, holding 
judicial sales and the like. He is also the chief conserva
tor of the peace within his territorial jurisdiction. 
When used in statutes, the term may include a deputy 
sheriff. He is in general charge of the county jail in 
most states. See also Constable; Marshal. 
Deputy sheriff. See Deputy; Under-sheriff. 
Sheriffs deed. A document giving ownership rights in 
property to a buyer at a sheriffs sale (i.e. a sale held by 
a sheriff to pay a court judgment against the owner of 
the property). Deed given at sheriffs sale in foreclosure 
of a mortgage. The giving of said deed begins a statu
tory redemption period. 
Sheriffs sale. A sale, commonly by auction, conducted 
by a sheriff or other court officer to carry out a decree of 
execution or foreclosure issued by a court. Examples 
include sales pursuant to attachments, liens and mort
gage defaults. See also Judicial sale. 
Sherman Antitrust Act. Such Act (15 U.S.C.A. §§ 1-7) 
prohibits any unreasonable interference, by contract, or 
combination, or conspiracy, with the ordinary, usual and 
freely-competitive pricing or distribution system of the 
open market in interstate trade. See also Clayton Act; 
Monopoly; Price-fixing; Restraint of trade; Robinson-P at
man Act; Rule (Rule of reason). 
Shield laws. Statutes affording a privilege to journalists 
not to disclose in legal proceedings confidential informa
tion or sources of information obtained by them in their 
professional capacities. Most states have such laws. Cf. 
N.Y. McKinney's Civil Rights Law § 79-h. 
Statutes which restrict or prohibit the use of evidence 
respecting the chastity of the victim of a rape or other 
sexual offense. Cf. Fed.R.Evid. 412. 
Shifting. Changing; varying; passing from one person 
to another by substitution. 
Shifting clause. In a settlement at common law, a 
clause by which some other mode of devolution is substi
tuted for that primarily prescribed. Examples of shift
ing clauses are: The ordinary name and arms clause, 
and the clause of less frequent occurrence by which a 
settled estate is destined as the foundation of a second 
family, in the event of the elder branch becoming other-

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1377 
wise enriched. These shifting clauses take effect under 
the statute of uses. 
Shifting income. Device used by taxpayers in high tax 
brackets to move income from themselves to their chil
dren and others who are in a lower bracket. Short term 
or Clifford trusts, as well as gifts to minors, were among 
the devices used to accomplish this purpose. However, 
since the Tax Reform Act of 1986 the process of shifting 
income has become more restrictive. For example, un
earned income in excess of a minimal amount of chil
dren under the age of 14 is taxed at their parents' 
highest rate. The Clifford Trust rules have also 
changed and earnings on assets put into a trust subse
quent to March, 1986 is taxed at the grantor's rate. 
Shifting risk. In insurance, a risk created by a contract 
of insurance on a stock of merchandise, or other similar 
property, which is kept for sale, or is subject to change 
in items by purchase and sale; the PQlicy being condi
tioned to cover the goods in the stock at any and all 
times and not to be affected by changes in its composi
tion. 
Shifting severalty. See Severalty. 
Shifting stock of merchandise. A stock of merchan
dise subject to change from time to time, in the course of 
trade by purchases, sales, or other transactions. 
Shifting the burden of proof. Transferring it from one 
party to the other, or from one side of the case to the 
other, when he upon whom it rested originally has made 
out a prima facie case or defense by evidence, of such a 
character that it then becomes incumbent upon the 
other to rebut it by contradictory or defensive evidence. 
See Burden of proof. 
Shifting use. See Use. 
Shilling. Slang term for the act of posing as an innocent 
bystander at a confidence game but giving aid and 
assistance to the perpetrators of the scheme as a decoy. 
Shinney / shiniy /. A local name for a homemade whis
ky. Moonshine. 
Shin-plaster. Formerly, a jocose term for a bank-note 
greatly depreciated in value; also for paper money of a 
denomination less than a dollar. 
Ship, v. To put on board a ship; to send by ship. 
Harrison v. Fortlage, 161 U.S. 57, 16 S.Ct. 488, 490, 40 
L.Ed. 616. To place (goods) on board a vessel for the 
purchaser or consignee, to be transported at his risk. In 
a broader sense, to transport; to deliver to a carrier 
(public or private) for transportatio n. To send away, to 
get rid of. To send by established mode of transporta
tion, as to "carry," "convey," or "transport," which are 
synonymous and defined, respectively, as "to bear or 
cause to be borne as from one place to another," and "to 
carry or convey from one place to anot her." Chicago, R. 
I. & P. Ry. Co. v. Petroleum Refining Co., D.C.Ky., 39 
F.2d 629, 630. See also Send; Shipment; Shipping. 
Ship, n. A vessel of any kind employed in navigation. 
Black's Law Dictionary 6th Ed.-30 
SHIP MORTGAGE ACT 
General ship. Where a ship is not chartered wholly to 
one person, but the owner offers her generally to carry 
the goods of all comers, or where, if chartered to one 
person, he offers her to several subfreighters for the 
conveyance of their goods, she is called a "general" ship, 
as opposed to a "chartered" one. One which is em
ployed by the charterer or owner on a particular voyage, 
and is hired to a number of persons, unconnected with 
each other to convey their respective goods to the place 
of destination. Alexander Eccles & Co. v. Strachan 
Shipping Co., D.C.Ga., 21 F.2d 653, 655. 
Ship broker. An agent for the transaction of business 
between shipowners and charterers or those who ship 
cargoes. 
Ship-master. The captain or master of a merchant ship, 
appointed and put in command by the owner, and hav
ing general control of the vessel and cargo, with power 
to bind the owner by his lawful acts and engagements in 
the management of the ship. 
Shi p's husband. In old maritime law, a person appoint
ed by the several part-owners of a ship, and usually one 
of their number, to manage the concerns of the ship for 
the common benefit. Generally understood to be the 
general agent of the owners in regard to all the affairs 
of the ship in the home port. 
Ship's papers. The papers which must be carried by a 
. vessel on a voyage, in order to furnish evidence of her 
national character, the nature and destination of the 
cargo, and of compliance with the navigation laws. The 
ship's papers are of two sorts: Those required by the law 
of a particular country; such as the certificate of regis
try, license, charter-party, bills of lading and of health 
and the like. Those required by the law of nations to be 
on board neutral ships, to vindicate their title to that 
character; these are the pass-port, sea-brief, or sea-let
ter, proofs of property, the muster roll or role d'equi
page, the charter-party, the bills of lading and invoices, 
the log-book or ship's journal, and the bill of health. 
Shipment. The delivery of goods to a carrier and his 
issuance of a bill of lading therefor. The transportation 
of goods. Pennsylvania R. Co. v. Carolina Portland 
Cement Co., C.C.A.S.C., 16 F.2d 760, 761. Also, the 
property which is the subject of transportation. Penn
sylvania R. Co. v. Carolina Portland Cement Co., C.C.A. 
S.C., 16 F.2d 760, 761. An order. A consignment of 
goods as delivered by the carrier. See also Ship; Ship
ping. 
Shipment contract. Any agreement for the sale of 
goods under which the seller is authorized or required 
only to bear the expense of putting the goods in the 
hands of a common carrier and bears the risk of loss 
only up to that point. A contract for the sale of goods 
which is silent on a delivery term is presumed to be a 
shipment contract. See U.C.C. §§ 2-319, 2-504, 2-
509(1). 
Ship Mortgage Act. Federal statute regulating mort
gages on ships registered as U.S. vessels. It provides for 
enforcement of maritime liens in favor of those who

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furnish supplies or maintenance to such vessels. 46 
V.S.C.A. § 911 et seq. 
Shipper. One who ships goods to another. One who 
engages the services of a carrier of goods. One who 
tenders goods to a carrier for transportation; a consign
or. The owner or person for whose account the carriage 
of goods is undertaken. See also Consignor. 
Shipping. Ships in general; ships or vessels of any kind 
intended for navigation. Relating to ships; as, shipping 
interests, shipping affairs, shipping business, shipping 
concerns. Putting on board a ship or vessel, or receiving 
on board a ship or vessel. 
Law of shipping. A comprehensive term for all that 
part of the maritime law which relates to ships and the 
persons employed in or about them. It embraces such 
subjects as the building and equipment of vessels, their 
registration and nationality, their ownership and inspec
tion, their employment (including charter-parties, 
freight, demurrage, towage, and salvage), and their sale, 
transfer, and mortgage; also, the employment, rights, 
powers, and duties of masters and mariners; and the 
law relating to ship-brokers, ship-agents, pilots, etc. See 
Jones Act; Longshore and Harbor Workers' Compensation 
Act; Maritime. 
Shipping articles. A written agreement between the 
master of a vessel and the mariners, specifying the 
voyage or term for which the latter are shipped, and the 
rate of wages. 46 V.S.C.A. § 564. 
Shipping document. Generic term to describe all pa
pers which cover a shipment in foreigil. or inland trade 
such as bill of lading, letter of credit, certificate of 
insurance and the like. See also Ship (Ship'S papers). 
Shipping order. Copy of bill of lading which carries 
shipper's instructions to carrier as to the disposition of 
the goods. 
Shipping papers. See Shipping document. 
Shipwreck. The demolition or shattering of a vessel, 
caused by her driving ashore or on rocks and shoals in 
the midseas, or by the violence of winds and waves in 
tempests. 
Shire Ishay(;})r/. A Saxon word which signified a divi
sion; it was made up of an indefinite number of hun
dreds--Iater called a county (Comitatus). 
In England, a county. So called because every county 
or shire is divided and parted by certain metes and 
bounds from another. 
Knights of the shire. See that title. 
Shire-clerk. He that keeps the county court. 
Shire-gemot, scire-gemote, scir-gemot. (From the Saxon 
scir or scyre, county, shire, and gemote, a court, an 
assembly.) Variants of scyregemote (q.v.). See also, 
Shire-mote, below. 
Shire-man, or scyre-man. Before the Conquest, the 
judge of the county, by whom trials for land, etc., were 
determined. 
1378 
Shire-mote. The assize of the shire, or the assembly of 
the people, was so called by the Saxons. It was nearly if 
not exactly, the same as the scyregemote, and in most 
respects corresponded with what were afterwards called 
the "county courts ." 
Shire-reeve (spelled, also, Shire rieve, or Shire reve). In 
Saxon law, the reeve or bailiff of the shire. The vis
count of the Anglo-Normans, and the sheriff of later 
times. In early England, the senior law enforcement 
figure in a country; the forerunner of today's sheriff. 
Shock. A sudden agitation of the physical or mental 
sensibilities. A sudden depression of the vital forces of 
the entire body, or a part of it, marking some profound 
impression produced upon the nervous system, as by 
severe injury, a surgical operation, profound emotion, or 
the like, or a prostration of the bodily functions, as from 
sudden injury or mental disturbance. Provident Life & 
Accident Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 
S.W.2d 292, 295. See also Trauma. 
Mental shock. A sudden agitation of the mind; star
tling emotion, as the shock of a painful discovery, a 
shock of grief or joy. Provident Life and Accident Ins. 
Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d 292, 295. 
Physical shock. A blow, impact, collision, concussion, or 
violent shake or jar, or a violent collision of bodies, or 
the concussion caused by it; a sudden striking or dash
ing together or against something. Provident Life and 
Accident Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 
S.W.2d 292, 295. 
Shoot. To strike with something shot; to hit, wound, or 
kill, with a missile discharged from a weapon. The term 
generally implies the use of firearms. 
Shop-book rule. An exception to the hearsay evidence 
rule, permitting the introduction in evidence of books of 
original entry made in the usual course of business, and 
introduced by one with custody of them, and upon 
general authentication. Clayton v. Metropolitan Life 
Ins. Co., 96 Vtah 331, 85 P.2d 819, 822; Fed.Evid.R. 
803(6), (7); 28 V.S.C.A. § 1732. 
Shop-books. Books of original entry kept by trademen, 
shop-keepers, mechanics, and the like, in which are 
entered their accounts and charges for goods sold, work 
done, etc., commonly called "account-bo oks," or "books 
of account ." See Shop-book rule. 
Shoplifting. Larceny of merchandise from a store or 
business establishment. Theft of goods displayed for 
sale. State v. Boyd, Cir.A.D., 5 Conn.Cir. 648, 260 A.2d 
618, 622. Essential constituents of "shopl ifting" are (1) 
willfully taking possession of merchandise offered for 
sale in mercantile establishment, (2) with intention of 
converting merchandise to taker's own use without pay
ing purchase price thereof. Yearwood v. State, 2 Tenn. 
Cr.App. 552, 455 S.W.2d 612, 617. 
Shop right rule. In patent law, the right of an employ
er to use employee's invention in employer's business 
without payment of royalty. The "shop right" doctrine 
is that, where an employee during his hours of employ
ment working with his employer's materials and appli-

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1879 
ances conceives and perfects an invention for which he 
obtains a patent, he must accord his employer a nonex
clusive right to practice the invention. The employer, 
however, is not entitled to a conveyance of the inven
tion, this remains the right of the employee-inventor. 
U. S. v. Dubilier Condenser Corp., 289 U.S. 178, 189, 53 
S.Ct. 554, 558, 77 L.Ed. 111 4. 
Shop steward. A union official elected to represent 
members in a plant or particular department. His 
duties include collection of dues, recruitment of new 
members and initial negotiations for settlement of griev
ances. 
Shore. Strictly and technically, lands adjacent to the 
sea or other tidal waters. The lands adjoining navigable 
waters, where the tide flows and reflows, which at high 
tides are submerged, and at low tides are bare. Shively 
v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 . The 
space bounded by the high and low water marks. Borax 
Consolidated v. City of Los Angeles, Ca l., 296 U.S. 10, 56 
S.Ct. 23, 80 L.Ed. 9. And this is also true even though 
the lands may lie along nonnavigable bodies of water. 
The term is synonymous with the term "beach." Little
ton v. State, 66 Haw. 55, 656 P.2d 1336, 1343. 
Under the civil law the "shore line" boundary of lands 
adjoining navigable waters is the line marked by the 
highest tide. 
In connection with salvage, "shore" means the land on 
which the waters have deposited things which are the 
subject of salvage, whether below or above ordinary 
high-water mark. 
Shore lands. Those lands lying between the lines of 
high and low water mark. Lands bordering on the 
shores of navigable lakes and rivers below the line of 
ordinary high water. 
Short. Not long; of brief length or duration; not coming 
up to a measure, standard, requirement, or the like. 
A term of common use in the stock and commodity 
markets. To say that one is "short," in the vernacular 
of the exchanges, implies only that one has less of a 
commodity than may be necessary to meet demands and 
obligations. It does not imply that commodity cannot or 
will not be supplied upon demand. 
In finance and commodity futures, a person is short 
when he has sold securities or commodities which he 
does not own at the time of the sale, though he expects 
to buy them back at a lower price than that at which he 
sold them. See also Short sale. 
Short covering. Buying stock to return stock previously 
borrowed to make delivery on a short sale. 
Short form merger. See Merger. 
Short interest. A short sale is the sale of borrowed 
stock. The seller expects a price decline that would 
enable him to purchase an equal number of shares later 
at a lower price for return to the lender. The "short 
interest" is the number of shares that haven't been 
purchased for return to lenders. See also Short sale. 
SHOW CAUSE ORDER 
Short lease. A term applied colloquially, but without 
much precision, to a lease for a short term (as a month 
or a year), as distinguished from one running for a long 
period. 
Shortly after. In point of time, a relative term, mean
ing in a short or brief time or manner; soon; presently; 
quickly. 
Short position. A short position maybe created when 
an investor borrows a stock in order to sell it, figuring 
the price of the stock will decline. The investor is in a 
"short position" until he purchases stock to repay the 
lender. See Short sale. 
Short sale. A contract for sale of shares of stock which 
the seller does not own, or certificates for which are not 
within his control, so as to be available for delivery at 
the time when, under rules of the exchange, delivery 
must be made. Provost v. U. S., 269 U.S. 443, 46 S.Ct. 
152, 153, 70 L.Ed. 352. A short sale occurs where a 
taxpayer sells borrowed property (usually stock) and 
repays the lender with substantially identical property 
either held on the date of the short sale or purchased 
after the sale (expecting to be able to buy the stocks 
later at a lower price). See also Short interest; Short 
position. 
Short sale against the box. A short sale where the 
investor owns enough shares of the security involved to 
cover the borrowed securities, if necessary. The "box" 
referred to is the hypothetical safe deposit box in which 
the certificates are kept. A short sale against the box is 
not as risky as a regular short sale. 
Short summons. A process, authorized in some of the 
states, to be issued against an absconding, fraudulent, or 
nonresident debtor, which is returnable within a less 
number of days than an ordinary writ of summons. 
Short swing profits. Profits made by an "insider" on 
the purchase and sale of stock of a corporation within a 
six-month period. See Insider. 
Short-term. Current; ordinarily, due within one year. 
Capital gains or losses. See Capital (Capital gain); Capi
tal (Capital loss). 
Short-term debt. Debt obligations which are due and 
payable on demand or within a year of issuance. Bonds 
with short maturity dates (e.g. one or two years). 
Should. The past tense of shall; ordinarily implying 
duty or obligation; although usually no more than an 
obligation of propriety or expediency, or a moral obli
gation, thereby distinguishing it from "ought." It is not 
normally synonymous with "may," and although often 
interchangeable with the word "would," it does not 
ordinarily express certainty as "will" sometimes does. 
Show, n. Something that one views or at which one 
looks and at the same time hears. 
Show, v. To make apparent or clear by evidence, to 
prove. 
Show cause order. Court order, decree, execution, etc., 
to appear as directed, and present to the court such

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reasons and considerations as one has to offer why a 
particular order, decree, etc., should not be confirmed, 
take effect, be executed, or as the case may be. See e.g. 
28 U.S.C.A. § 2243 (habeas corpus). 
An order to a person or corporation, on motion of 
opposing party, to appear in court and explain why the 
court should not take a proposed action. If the person 
or corporation fails to appear or to give sufficient rea
sons why the court should take no action, the court will 
take the action. 
Shower. One who accompanies a jury to the scene to 
call the attention of the jurors to specific objects to be 
noted. Snyder v. Mass., 291 U.S. 97, 54 S.Ct. 330, 78 
L.Ed. 674. See also View. 
Show-up. One-to-one confrontation between suspect and 
witness to crime. A type of pre-trial identification pro
cedure in which a suspect. is confronted by or exposed to 
the victim of or witness to a crime. It is less formal 
than a lineup but its purpose is the same. Commonly, it 
occurs within a short time after the crime or under 
circumstances which would make a lineup impracticable 
or impossible. Due process standards must be met if 
evidence of such identification is to be admissible in 
court. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 
L.Ed.2d 1199; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 
34 L.Ed.2d 401. Compare Lineup. 
Shut down. To stop work; usually said of a factory, etc. 
Shut-in royalty. In oil and gas leases, a royalty pay
ment made to keep the lease in force though there is no 
production. 
Shyster. A trickish knave; one who carries on any 
business or profession in a deceitful, tricky or dishonest 
way. 
Si actio Isay reksh(iy)ow/. Lat. The conclusion of a plea 
to an action when the defendant demands judgment, if 
the plaintiff ought to have his action, etc. Obsolete. 
Si a jure discedas, vagus eris, et erunt omnia omni
bus incerta I say ey juriy d�siyd�s, veyg�s ehr�s, ed 
ehr�nt omn(i)y� omn�b�s ins;)rt�/. If you depart from 
the law, you will go astray, and all things will be 
uncertain to everybody. 
Si alicujus rei societas sit et finis negotio impositus 
est, finitur societas I say rel�kyuwj�s riyay s�say�tres sit 
et fayn�s n�gowsh(iy)ow impoz�t�s est, fin�t�r s�sa
y�tres/. If there is a partnership in any matter, and the 
business is ended, the partnership ceases. 
Si aliquid ex solemnibus deficiat, cum requitas poscit, 
subveniendum est I say rel�kw�d eks s�lemn�b�s 
d�fishiy�t, k;}m ekw�tres pos�t, s�bveniyend�m est/. If 
any one of certain required forms be wanting, where 
equity requires, it will be aided. The want of some of a 
neutral vessel's papers is strong presumptive evidence 
against the ship's neutrality, yet the want of any one of 
them is not absolutely conclusive. 
Si aliquid sapit I say rebkw�d seyp�t/. Lat. If he knows 
anything; if he is not altogether devoid of reason. 
1380 
Si assuetis mederi possis, nova non sunt tentanda 
Isay �swiyt�s m�diray pos�s, nowv� non s;}nt tentrend�/. 
If you can be relieved by accustomed remedies, new ones 
should not be tried. If an old wall can be repaired, a 
new one should not be made. 
Si a tutela removendus est Isay ey t(y)uwtiyl� 
riymowvend�s est/. If a guardian do fraud to his ward, 
he shall be removed from his guardianship. 
Sib Isib/. Sax. A relative or kinsman. Used in the 
Scotch tongue, but not now in English. 
Sic Isik/. Lat. Thus; so; in such manner. 
Sic enim debere quem meliorem agrum suum facere 
ne vicini deteriorem faciat I sik en�m d�biriy kwem 
miyl(i)yor�m regr�m s(y)uw�m fres�riy niy v�saynay 
d�tiriyor�m feysh(iy)�t/. Every one ought so to improve 
his land as not to injure his neighbor's. A rule of the 
Roman law. 
Sic interpretandum est ut verba accipiantur cum 
effectu I sik �nt;}rpr�trend�m est ;}t v;)rb� �ksipiyrent�r 
k;}m �fekt(y)uw/. [A statute] is to be so interpreted that 
the words may be taken with effect. 
Sick. Affected with disease, ill, indisposed. 
Sick leave. Period allowed by an employer to an em
ployee for the employee's sickness either with or without 
pay but with no loss of seniority or other benefits. 
Sickness. Illness; disease. An ailment of such a char
acter as to affect the general soundness and health; not 
a mere temporary indisposition, which does not tend to 
undermine and weaken the constitution. 
Si constet de persona Isay konst�t diy p�rsown�/. Lat. 
If it be certain who is the person meant. 
Si contingat I say k�ntilJg�tI. Lat. If it happen. Words 
of condition in old conveyances. 
Sicut alias I sik�d eyl(i)y�s/. Lat. As at another time, 
or heretofore. This was a second writ sent out when the 
first was not executed. 
Sic utere tuo ut alienum non lredas I sik yUwt�riy 
t(y)uwow ;}t reliyiyn�m non liyd�s/. Common law max
im meaning that one should use his own property in 
such a manner as not to injure that of another. 1 
Bl.Comm. 306. Chapman v. Barnett, 131 Ind.App. 30, 
169 N.E.2d 212, 214. 
Sicut me deus adjuvet Isik�t miy diy�s rej�v�tI. Lat. 
So help me God. 
Sicut natura nil facit per saltum, ita nec lex I sik�t 
n�tyUr� nil feys�t p;}r solt�m, ayt� nek leks I . In the 
same way as nature does nothing by a bound, so neither 
does the law. 
Side. The margin, edge, verge, or border of a surface; 
any one of the bounding lines of the surface. 
The party or parties collectively to a lawsuit con
sidered in relation to his or their opponents, i.e., the 
plaintiff side, or the defendant side. 
A province or field of jurisdiction of courts. Thus, the 
same court is sometimes said to have different sides, as

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1381 
an "equity side" and a cClaw side"; though with the 
procedural merger of law and equity in most states such 
side distinctions have been abolished. 
Side-bar. Refers to position at side of the judge's bench 
where trial counsel and judge discuss matters out of 
hearing of jury. It is important that such conferences 
be recorded if they are to be considered on appeal. New 
Jersey v. Green and Guida, 129 N.J.Super. 157, 322 A.2d 
495, 499. 
Side-bar rules. In English practice, there are some 
rules which the courts authorize their officers to grant 
as a matter of course without formal application being 
made to them in open court, and these are technically 
termed cCside-bar rules," because formerly they were 
moved for by the attorneys at the side bar in court; 
such, for instance, was the rule to plead, which was an 
order or command of the court requiring a defendant to 
plead within a specified number of days. Such also were 
the rules to reply, to rejoin, and many others, the 
granting of which depended upon settled rules of prac
tice rather than upon the discretion of the courts, all of 
which have been rendered unnecessary by statutory 
changes. 
Side lines. In commercial usage, lines of goods sold or 
businesses followed in addition to one's principal articles 
or occupation. 
In mining law, the side lines of a mining claim are 
those which measure the extent of the claim on each 
side of the middle of the vein at the surface. They are 
not necessarily the side lines as laid down on the ground 
or on a map or plat; for if the claim, in its longer 
dimension, crosses the vein, instead of following it, the 
platted side lines will be treated in law as the end lines, 
and vice versa. Argentine Min. Co. v. Terrible Min. Co., 
122 U.S. 478, 7 S.Ct. 1356, 30 L.Ed. 1140; Del Monte 
Min. Co. v. Last Chance Min. Co., 171 U.S. 55, 18 S.Ct. 
895, 43 L.Ed. 72. 
Side reports. A term sometimes applied to unofficial 
volumes or series of reports, as contrasted with those 
prepared by the official reporter of the court, or to 
collections of cases omitted from the official reports. 
Sidesmen. In ecclesiastical law, these were originally 
persons whom, in the ancient episcopal synods, the 
bishops were wont to summon out of each parish to give 
information of the disorders of the clergy and people, 
and to report heretics. In process of time they became 
standing officers, under the title of "synodsmen," "sides
men," or "questmen." The whole of their duties de
volved by custom upon the church-wardens of a parish. 
Sidewalk. That part of a public street or highway 
designed for the use of pedestrians, being exclusively 
reserved for them, and constructed somewhat differently 
than other portions of the street. 
Si duo in testamento pugnantia reperientur, ultimum 
est ratum Isay d(y)uwow in test::lm€mtow p�gnrensh(iY)::I 
r::lpehriyent::lr, �lt::lm::lm est reyt::lm/. If two conflicting 
provisions are found in a will, the last is observed. 
SIGNATURE 
Si fecerit te securum Isay fes::lr::lt tiy s::lkylir::lm/. Lat. 
If he makes you secure. In practice. The initial and 
emphatic words of that description of original writ 
which directs the sheriff to cause the defendant to 
appear in court, without any option given him, provided 
the plaintiff gives the sheriff security effectually to 
prosecute his claim. 3 Bl.Comm. 274. 
Sight. The power of seeing; the faculty of vision or of 
perceiving objects; or the act· of seeing, and perception 
of objects through the eyes. 
Sight draft. An instrument payable on proper present
ment (i.e. payable on demand). U.C.C. § 3-108. A bill 
of exchange for the immediate collection of money. 
United Ben. Fire Ins. Co. v. First Nat. Bank of Ariz., 
Phoenix, 1 Ariz. App. 550, 405 P.2d 488, 490. 
Bills of exchange are frequently drawn payable at 
sight or certain number of days or months after sight. 
U.C.C. § 3-109(l)(b). 
A demand for payment drawn by a person to whom 
money is owed. The draft is presented to the borrower's 
(the debtor's) bank in expectation that the borrower will 
authorize its bank to disburse the funds. 
See also Demand (Demand no te). 
Sigil Isij::ll/. In old English law, a seal, or a contracted 
or abbreviated signature used as a seal. 
Sigillum IS::ljil::lm/. Lat. In old English law, a seal; 
originally and properly a seal impressed upon wax. 
Sigla Isigl::l/. Lat. In Roman law, marks or signs of 
abbreviation used in writing. 
Sign. To affix one's name to a writing or instrument, for 
the purpose of authenticating or executing it, or to give 
it effect as one's act. To attach a name or cause it to be 
attached to a writing by any of the known methods of 
impressing a name on paper. To affix a signature to; to 
ratify by hand or seal; to subscribe in one's own hand
writing. To make any mark, as upon a document, in 
token of knowledge, approval acceptance, or obligation. 
See also Cross; Execution; Mark; Signature. 
All pleadings must be signed by attorney of record. 
Fed.R.Civil P. 11. 
Signa Isign::l/. The plural of signum (q.v.). 
Signal. A means of communication, as between vessels 
at sea or between a vessel and the shore. The interna
tional code of signals for the use of all nations assigns 
arbitrary meanings to different arrangements of flags or 
displays of lights. 
Signatorius annulus I sign::ltoriY::ls renY::ll::ls/. Lat. In 
the civil law, a signet-ring; a seal-ring. 
Signatory Isign::lt(o)riy/. A term used in diplomacy to 
indicate a nation which is a party to a treaty. In 
general, a person who signs a document personally or 
through his agent and who becomes a party thereto. 
Signature. The act of putting one's name at the end of 
an instrument to attest its validity; the name thus 
written. A signature may be written by hand, printed, 
stamped, typewritten, engraved, photographed, or cut 
from one instrument and attached to another, and a 
signature lithographed on an instrument by a party is

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SIGNATURE 
sufficient for the purpose of signing it; it being immate
rial with what kind of instrument a signature is made. 
Maricopa County v. Osborn, 60 Ariz. 290, 136 P.2d 270, 
274. And whatever mark, symbol, or device one may 
choose to employ as representative of himself is suffi
cient. 
The name or mark of a person, written by that person 
at his or her direction. In commercial law, any name, 
word, or mark used with the intention to authenticate a 
writing constitutes a signature. UCC §§ 1-201(39), 3-
401(2). See also Cross; Sign; Signed. 
A signature is made by use of any name, including 
any trade or assumed name, upon an instrument, or by 
any word or mark used in lieu of a written signature. 
U.C.C. § 3-40 l. 
The signature to a deed may be made either by the 
grantor affixing his own signature, or by adopting one 
written for him, or by making his mark, or impressing 
some other sign or symbol on the paper by which the 
signature, though written by another for him, may be 
identified. 
Public Officials. Many states have adopted the Uni
form Facsimile Signatures of Public Officials Act. 
Unauthorized signature. One made without actual, im
plied or apparent authority and includes a forgery. 
U.C.C. § 1-201(43). 
Signature card. A card which a bank or other financial 
institution requires of its customers and on which the 
customer puts his signature and other information. It 
becomes a permanent file and permits the bank to 
compare the signature on the card with a signature on 
checks, withdrawal slips and other documents. 
Signed. Includes any symbol executed or adopted by a 
party with present intention to authenticate a writing. 
U.C.C. § 1-201(39). See also Signature. 
Signify. To make known by signs or words; express; 
communicate; announce; declare. 
Signing judgment. See Sign. 
Signum 1 sign�m /. Lat. Roman and civil law. A sign; 
a mark; a seal. The seal of an instrument. 
A species of proof. By "signa" were meant those 
species of indicia which come more immediately under 
the cognizance of the senses; such as stains of blood on 
the person of one accused of murder, indications of 
terror at being charged with the offense, and the like. 
Saxon law. The sign of a cross prefixed as a sign of 
assent and approbation to a charter or deed. 
Si ingratum dixeris, omnia dixeris 1 say ingreyt�m 
diks�r�s, 6mn(i)y� diks�r�s/. If you affirm that one is 
ungrateful, in that you include every charge. A Roman 
maxim. 
Si ita est lsay ayt� est/. Lat. If it be so. Emphatic 
words in the old writ of mandamus to a judge, command
ing him, if the fact alleged be truly stated (si ita est), to 
affix his seal to a bill of exceptions. 
1382 
Si judicas, cognosce / say juwd�k�s kogn6siy I. If you 
judge, understand. 
Silence. The state of a person who does not speak, or of 
one who refrains from speaking. In the law of estoppel, 
"silence" implies knowledge and an opportunity to act 
upon it. Pence v. Langdon, 99 U.S. 578, 581, 25 L.Ed. 
420; Stewart v. Wyoming Cattle Ranch Co., 128 U.S. 
383, 9 S.Ct. 101, 32 L.Ed. 439. 
Silence, estoppel by. Such estoppel arises wh�re person 
is under duty to another to speak or failure to speak is 
inconsistent with honest dealings. 
An agreement inferred from silence rests upon princi
ple of "estoppel." Letres v. Washington Co-op. Chick 
Ass'n, 8 Wash.2d 64, 111 P.2d 594, 596. Silence, to work 
"estoppel", must amount to bad faith, Wise v. United 
States, D.C.Ky., 38 F.Supp. 130, 134; and, elements or 
essentials of such estoppel include: change of position to 
prejudice of person claiming estoppel, Sherlock v. 
Greaves, 106 Mont. 206, 76 P.2d 87, 91; damages if the 
estoppel is denied, James v. Nelson, C.C.A .Alaska, 90 
F.2d 910, 917; duty and opportunity to speak, Merry v. 
Garibaldi, 48 Cal.App.2d 397, 11 9 P.2d 768, 771; igno
rance of facts by person claiming estoppel, Nelson v. 
Chicago Mill & Lumber Corporation, C.C.A.Ark., 76 F.2d 
17; inducing person claiming estoppel to alter his posi
tion; knowledge of facts and of rights by person es
topped, Consolidated Freight Lines v. Groenen, 10 
Wash.2d 672, 117 P.2d 966, 968; misleading of party 
claiming estoppel, Lincoln v. Bennett, Tex.Civ.App., 135 
S.W.2d 632, 636; reliance upon silence of party sought 
to be estopped, New York Life Ins. Co. v. Talley, C.C.A. 
Iowa, 72 F.2d 715, 718. 
Silence of accused. A person under arrest may main
tain silence as to all matters connected with the arrest 
and crime except that he must furnish his correct name, 
permit fingerprinting, as well as voice and writing ex
emplars. His silence may not be commented upon at 
trial nor may any inference be drawn from the fact of 
his silence. If a defendant refuses to plead, the court 
will enter a plea of not guilty. Fed.R.Crim.P. l1(a). 
Silentiarius Is�lenshiyeriy�s/. In English law, one of 
the privy council; also an usher who keeps good order in 
court. 
Silent leges inter arma Isayl�nt liyjiyz int�r arm� /. 
The power of law is suspended during war. 
Silent partner. An investor in a firm who takes no 
active part in its management but who shares in its 
profits and losses. A dormant or limited partner; one 
whose name does not appear in the firm, and who takes 
no active part in the business, but who has an interest 
in the concern, and shares the profits, and thereby 
becomes a partner, either absolutely, or as respects third 
persons. See Limited partner. 
Silent witness theory. This theory permits admission 
of photographic evidence at trial as substantive, rather 
than merely demonstrative, evidence, where there is 
proof that photographs have not been altered, and no 
witness is required to testify that photograph accurately

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1383 
represents what he or she observed. Buck v. State, Ind., 
453 N.E.2d 993, 996. 
Silver certificates. Species of paper money formerly in 
circulation in this country and which was redeemable in 
silver. Silver certificates have been replaced by federal 
reserve notes. 
Silver platter doctrine. Evidence obtained illegally by 
state officials was formerly admissible in federal prose
cutions because no federal official had participated in 
the violation of the defendant's rights. However, this 
rule no longer obtains. Elkins v. U. S., 364 U.S. 206, 80 
S.Ct. 1437, 4 L.Ed.2d 1669. 
Si meliores sunt quos ducit amor, plures sunt quos 
corrigit timor Isay miyliyoriyz s�nt kwows d(y)uws;;)t 
eymor, pl(y)uriyz s�nt kwow kor;;)j;;)t taymor /. If those 
are better who are led by love, those are the greater 
number who are corrected by fear. 
Similar. Nearly corresponding; resembling in many re
spects; somewhat like; having a general likeness, al
though allowing for some degree of difference. Gangi v. 
Sears, Roebuck & Co., 33 Conn.Sup. 81, 360 A.2d 907, 
908. Word cosimilar" is generally interpreted to mean 
that one thing has a resemblance in many respects, 
nearly corresponds, is somewhat like, or has a general 
likeness to some other thing but is not identical in form 
and substance, although in some cases cosimilar" may 
mean identical or exactly alike. It is a word with 
different meanings depending on context in which it is 
used. Guarantee Mut. Life Ins. Co. v. Harrison, Tex.Civ. 
App., 358 S.W.2d 404, 406. 
Similar happenings. In law of evidence, generally 
things that happened at a time different from the time 
in dispute in the suit are not admissible because they 
are not material or relevant to what occurred at the 
disputed time. Where such happenings are admissible, 
the proof is limited to such issues as control of premises, 
or conditions which may have persisted. 
Similar sales. In law of evidence, when market value is 
in issue, sales of similar property is admissible to prove 
value. 
There is no specific rule to determine the degree of 
similarity necessary for evidence of a sale of other 
property to be admissible in a condemnation action. 
coSimilar" does not mean "i dentical," and other sales 
need be only sufficiently similar in character and locali
ty to provide the jury some reasonable basis for compari
son. Lake County Forest Preserve Dist. v. Reliance 
Standard Life Ins. Co., 29 Ill.App.3d 145, 329 N.E.2d 344, 
349. coSimilarity" necessary to permit evidence of sale 
of one property to establish market value of another 
does not mean identical, but does require reasonable 
resemblance taking into consideration such factors as 
location, size and sale price; conditions surrounding 
sale, such as date and character of sale; business and 
residential advantages or disadvantages; and unim
proved, improved or developed nature of land. Arkan
sas State Highway Commission v. Witkowski, 236 Ark. 
66, 364 S.W.2d 309, 311. 
SIMPLE NEGLIGENCE 
Similiter Is;;)mil;;)t;;)r/. Lat. In common law pleading, 
means likewise; the like. The name of the short formu
la used either at the end of pleadings or by itself, 
expressly of the acceptance of an issue of fact tendered 
by the opposite party; otherwise termed a COjoinder in 
issue." The plaintiffs reply, that, as the defendant has 
put himself upon the country, he, the plaintiff, does the 
like. It occurs only when the plea has the conclusion to 
the country, and its effect is to join the plaintiff in the 
issue thus tendered by the defendant. 
Similitudo legalis est casuum diversorum inter se 
collatorum similis ratio; quod in uno similium val
et, valebit in altero. Dissimilium, dissimilis est ra
tio Is;;)mil;;) tyuwdow l;;)geyl;;)s est keysyuw;;)m d;;)v�rsor;;)m 
int;;)r siy kol;;)tor;;)m sim;;)l;;)s reysh(iy)ow; kwod in yunow 
s;;)miliy;;)m vrebt, v;;)liyb;;)t in olt;;)row. dis;;)miliy;;)m 
disim;;)l;;)s est reysh(iy)ow I. Legal similarity is a similar 
reason which governs various cases when compared with 
each other; for what avails in one similar case will avail 
in the other. Of things dissimilar, the reason is dissimi
lar. 
Simonia est voluntas sive desiderium emendi vel 
vendendi spiritualia vel spiritualibus adhrerentia. 
Contractus ex turpi causa et contra bonos mores 
Is;;)mowniy;;) est v;;)l�ntres sayviy dez;;)diriy;;)m ;;)menday 
vel vendenday spihr;;)tyuweyl(i)y;;) vel spihr;;)tyuweyl;;)b;;)s 
cMh;;)rensh(iy);;). k;;)ntrrekt;;)s eks t�rpay koz;;) et kontr;;) 
bownows moriyz /. Simony is the will or desire of buy
ing or selling spiritualities, or things pertaining thereto. 
It is a contract founded on °a bad cause, and against 
morality. 
Simony Isim;;)ni y/. In English ecclesiastical law, the 
corrupt presentation of any one to an ecclesiastical 
benefice for money, gift, or reward. 2 Bl.Comm. 278. 
An unlawful contract for presenting a clergyman to a 
benefice. The buying or selling of ecclesiastical prefer
ments or of things pertaining to the ecclesiastical order. 
An unlawful agreement to receive a temporal reward for 
something holy or spiritual. Giving or receiving any 
material advantage in return for spiritual promotion, 
whether such advantage be actually received or only 
stipulated for. 
Simpla Isimpl;;) /. Lat. In the civil law, the single value 
of a thing. 
Simple. Pure; unmixed; not compounded; not aggrava
ted; not evidenced by sealed writing or record. 
As to simple Assault; Average; Battery; Blockade; 
Bond; Confession; Contract; Deposit; Imprisonment; In
terest; Larceny; Obligation; and Trust, see those titles. 
Simple kidnapping. A statutory form of unlawful im
prisonment of a person which is not aggravated as in the 
case of child stealing or kidnapping for ransom. See 
also Kidnapping. 
Simple negligence. Such consists of failure to exercise 
for protection of others that degree of care and caution 
that would, under prevailing circumstances, be exercised 
by ordinarily prudent person. Pettingell v. Moede, 129 
Colo. 484, 271 P.2d 1038, 1042, 1043. Inadvertence or

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SIMPLE NEGLIGENCE 
mistake, usually caused by heedlessness or carelessness 
on the face of a risk which reasonable person would not 
take. Popow v. City of Margate, D.C.N.J., 476 F.Supp. 
1237, 1244. See Negligence. 
Simple robbery. Gist of crime is the putting in fear and 
taking of property of another by force or intimidation. 
People v. Small, 177 Colo. 118, 493 P.2d 15, 19. See also 
Robbery. 
Simplex /simpleks /. Lat. Simple; single; pure; un
qualified. 
Simplex et pura donatio dici poterit, ubi nulla est 
adjecta conditio nec modus /simpleks et pylir;} 
d;}neysh(iy)ow daysay pot;}r;}t, yuwbay n:ll;} est rejekt;} 
k;}ndish(iy)ow nek mowd;}s /. Agift is said to be pure and 
simple when no condition or qualification is annexed. 
Simplicita est legibus amica; et nimia subtilitas in 
jure reprobatur /simplis;}t;} est liyj;}b;}s ;}mayk;}, et 
nimiy;} s;}btil;}tres in juriy repr;}beyt;}r/. Simplicity is 
favorable to the laws; and too much subtlety in law is to 
be reprobated. 
Simpliciter /simplis;}t ;}r/. Lat. Simply; without cere
mony; in a summary manner. 
Directly; immediately; as distinguished from inferen
tially or indirectly. 
By itself; by its own force; per se. 
Simplified Employee Pension Plan (SEP). An individ
ual retirement account or individual retirement annuity 
which an employer establishes for his or her employees. 
See I.R.C. § 408(k). See also Individual Retirement Ac
count (I.A.A.). 
Simulate. To assume the mere appearance of, without 
the reality; to assume the signs or indications of, falsely; 
to counterfeit; feign; imitate; pretend. To engage, 
usually with the co-operation or connivance of another 
person, in an act or series of acts, which are apparently 
transacted in good faith, and intended to be followed by 
their ordinary legal consequences, but which in reality 
conceal a fraudulent purpose of the party to gain there
by some advantage to which he is not entitled, or to 
injure, delay, or defraud others. 
Simulated contract. One which, though clothed in con
crete form, has no existence in fact. It may at any time 
and at the demand of any person in interest be declared 
a sham and may be ignored by creditors of the apparent 
vendor. 
Simulated fact. In the law of evidence, a fabricated 
fact; an appearance given to things by human device, 
with a view to deceive and mislead. 
Simulated judgment. One which is apparently ren
dered in good faith, upon an actual debt, and intended to 
be collected by the usual process of law, but which in 
reality is entered by the fraudulent contrivance of the 
parties, for the purpose of giving to one of them an 
advantage to which he is not entitled, or of defrauding 
or delaying third persons. 
1384 
Simulated sale. One which has all the appearance of an 
actual sale in good faith, intended to transfer the owner
ship of property for a consideration, but which in reality 
covers a collusive design of the parties to put the proper
ty beyond the reach of creditors, or proceeds from some 
other fraudulent purpose. It results when parties exe
cute a formal act of sale of a thing for which no price is 
paid or is intended to be paid, and such sale has no legal 
effect and no title is transferred thereby. If there exists 
an actual consideration for transfer evidenced by alleged 
act of sale, no matter how inadequate it be, the transac
tion is not a "simulated sale", and, even though it be 
charged to be in fraud of vendor's creditors, such trans
fer cannot be set aside as a simulation although it may 
be subject to annulment on the ground of fraud or the 
giving of undue preference. 
Simulatio latens /sim(y);}leysh(iy)ow leytenz/. Lat. A 
species of feigned disease, in which disease is actually 
present, but where the symptoms are falsely aggravated, 
and greater sickness is pretended than really exists. 
Simulation. Assumption of appearance which was 
feigned, false, deceptive, or counterfeit. United States v. 
Peppa, D.C.Cal., 13 F.Supp. 669, 670. See also Perso
nate; Impersonation; Simu late. 
In the civil law, misrepresentation or concealment of 
the truth; as where parties pretend to perform a trans
action different from that in which they really are 
engaged. A feigned, pretended act; one which assumes 
the appearance without the reality and, being entirely 
without effect, it is held not to have existed, and, for 
that reason, it may be disregarded or attacked collat
erally by any interested person. Freeman v. Woods, 
La.App., 1 So.2d 134, 136. 
Simul cum / saym;}l k:lm/. Lat. Together with.' In 
actions of tort and in prosecutions, where several per
sons united in committing the act complained of, some 
of whom were known and others not, it was usual to 
allege in the declaration or indictment that the persons 
therein named did the injury in question, "together with 
(simul cum) other persons unknown." In cases of riots, 
it was usual to charge that A B, together with others 
unknown, did the act complained of. 
Simul et semel / saym;}l et siym ;}lI. Lat. Together and 
at one time. 
Simultaneous. A word of comparison meaning that two 
or more occurrences or happenings are identical in time. 
Simultaneous Death Act. A Uniform State Law 
(adopted by most states) which provides that where 
passage of title to property depends upon the time of 
one's death, if there is insufficient evidence that persons 
have died otherwise than simultaneously, the property 
of each person shall be disposed of as if he had survived 
unless the Act provides otherwise. See also Uniform 
Probate Code, § 2-104. 
Simultaneous death clause. A clause in a will which 
provides for the disposition of property in the event that 
there is no evidence as to the priority of time of death of

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1385 
the testator and another, commonly the testator's 
spouse. See Uniform Probate Code, § 2-104. 
Since. This word's proper signification is Uafter," and in 
its apparent sense it includes the whole period between 
the event and the present time. uSince" a day named, 
does not necessarily include that day. 
Sine Isayniy/. Lat. Without. 
Sine animo revertendi Isayniy ren�mow riyv�rt{mday/. 
Without the intention of returning. 
Sine assensu capituli Isayniy �sens(y)uw k�pity�lay/. 
Without the conssent of the chapter. In old English 
practice, a writ which lay where a dean, bishop, preben
dary, abbot, prior, or master of a hospital aliened the 
lands holden in the right of his house, abbey, or priory, 
without the consent of the chapter; in which cases his 
successor might have this writ. 
Sine consideratione curire I sayniy k�nsid�reyshiyowniy 
kyUriyiy I. Without the judgment of the court. 
Sinecure Isayn�kyUrlsin° I. An office which yields a 
revenue to the incumbent, but makes little or no de
mand upon his time or attention. 
Sine decreto Isayniy d�kriytow/. Without authority of 
a judge. 
Sine die Isayniy day(iy)/. Without day; without assign
ing a day for a further meeting or hearing. Hence, a 
legislative body adjourns sine die when it adjourns with
out appointing a day on which to appear or assemble 
again. State ex reI. Jones v. Atterbury, Mo., 300 S.W.2d 
806, 811. 
A final adjournment; final dismissal of a cause. Quod 
eat sine die, that he go without day; the old form of a 
judgment for the defendant, i.e., a judgment discharging 
the defendant from any further appearance in court. 
Sine hoc quod I sayniy hok kwod/. Without this, that. 
A technical phrase in old pleading, of the same import 
with the phrase "absque hoc quod. " 
Sine numero Isayniy n(y)uwm�row /. Without stint or 
limit. A term applied to common. 
Sine possessione usucapio procedere non potest Isay
niy p�zeshiyowniy yuwsyuwkeyp(i)yow pr�siyd�riy non 
powt�st/. There can be no prescription without posses
sion. 
Sine prole Isayniy prowliy/. Without issue. Used in 
genealogical tables, and often abbreviated into "s.p. " 
Sine qua non Isayniy kwey non/. Without which not. 
That without which the thing cannot be. An indispens
able requisite or condition. 
Single. One only, being an individual unit; alone; one 
which is abstracted from others. State ex reI. Nelson v. 
Board of Com'rs of Yellowstone County, 111 Mont. 395, 
109 P.2d 1106, 11 07. Unitary; detached; individual; 
affecting only one person; containing only one part, 
article, condition, or covenant. Unmarried; the term 
being also applicable to a widow, and occasionally even 
SINKING FUND 
to a married woman living apart from her husband. 
Sometimes, principal; dominating. 
As to single Adultery; Bill; Bond; Combat; Demise; 
Entry; Escheat; Obligation; Original; and Tract of land, 
see those titles. 
Single creditor. One having a lien only on a single 
fund;-distinguished from double creditor, who is one 
having a lien on two funds. 
Single-entry bookkeeping. In accounting, a simple sys
tem of recordkeeping in which each transaction is re
corded in a single record, such as a checkbook or a list of 
accounts receivable. 
Single juror charge. The charge that, if there is any 
juror who is not reasonably satisfied from the evidence 
that plaintiff should recover a verdict against the defen
dant, jury cannot find against defendant. 
Single publication rule. Under the Usingle publication 
rule," where an issue of a newspaper or magazine, or an 
edition of a book, contains a libelous statement, plaintiff 
has a single cause of action and the number of copies 
distributed is considered as relevant for damages but not 
as a basis for a new cause of action. Barres v. Holt, 
Rinehart and Winston, Inc., 131 N.J.Super. 371, 330 
A.2d 38. General theory of this rule is that a defendant 
should be subject to suit only once for each mass publi
cation of libel, but that in that one action plaintiff may 
introduce evidence of all sales in all jurisdictions to 
show extent of his injury. Novel v. Garrison, D.C.Ill., 
294 F.Supp. 825, 830. 
Singular. Each; as in the expression uall and singular." 
Also, individual. In grammar, the singular is used to 
express only one. In law, the singular frequently in
cludes the plural. As to singular Successor; and Title, 
see those titles. 
Singuli in solidum tenentur I siIJgy�lay in sol�d�m 
t�nent�r I. Each is bound for the whole. 
Sinking fund. Assets and their earnings earmarked for 
the retirement of bonds or other long-term obligations. 
An obligation sometimes imposed pursuant to the is
suance of debt securities or preferred shares by which 
the issuer is required each year to set aside a certain 
amount to enable the issuer to retire the securities when 
they mature. A sinking fund may be allowed to accu
mulate or may be used each year to redeem a portion of 
the outstanding securities. 
A fund (usually invested), which will be used to re
place improvements as needed. Most commonly set 
aside from the income of income producing property. 
A fund arising from particular taxes, imposts or 
duties, which is appropriated toward the payment of the 
interest due on a public loan, and for the payment of the 
principal. Talbott v. City of Lyons, 171 Neb. 186, 105 
N.W.2d 918, 925. 
In general accounting, segregated assets that are be
ing accumulated for a specific purpose. In governmen
tal accounting, a fund established to accumulate re
sources for the retirement of bonds but not for the

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SINKING FUND 
payment of interest, which is handled through the gen
eral fund or a special revenue fund. 
Sinking fund debenture. A type of debenture which is 
backed by a provision for sinking fund (q. v.). 
Sinking fund method of depreciation. The periodic 
charge is an amount so that when the charges are 
considered to be an annuity, the value of the annuity at 
the end of depreciable life is equal to the acquisition cost 
of the asset. In theory, the charge for a period ought 
also to include interest on the accumulated depreciation 
at the start of the period as well. A fund of cash is not 
necessarily, or even usually, accumulated. 
Si non appareat quid actum est, erit consequens ut id 
sequamur quod in regione in qua actum est fre
quentatur Isay non ;}preriy;}t kwid ,rekt;}m est, ehr;}t 
k;}nsiykw;}nz �t id s;}kweym;}r kwod in riyjiyowniy in 
kwey rekt;}m est friykw;}nteyt;}r/. If it does not appear 
what was agreed upon, the consequence will be that we 
must follow that which is the usage of the place where 
the agreement was made. 
Si non omnes I say non omniyz/. Lat. In English 
practice, a writ of association of justices whereby, if all 
in commission cannot meet at the day assigned, it is 
allowed that two or more may proceed with the busi
ness. 
Si nulla sit conjectura qure ducat alio, verba intelli
genda sunt ex proprietate, non grammatica sed po
pulari ex usu Isay n�l;} sit konjekt(y)ur;} kwiy d(y)uwk;}t 
eyl(i)yow, v�rb;} intel;}jend;} s�nt eks pr;}pray;}teytiy, non 
gr;}mret;}k;} sed popy;}leray eks yuwsyuw I. If there be no 
inference which leads to a different result, words are to 
be understood according to their proper meaning, not in 
a grammatical, but in a popular and ordinary, sense. 
Si paret I say prer;}t/. Lat. If it appears. In Roman law, 
words used in the formula by which the prretor appoint
ed a judge, and instructed him how to decide the cause. 
SIPC. See Securities Investor Protection Act. 
Sipessocua. In old English law, a franchise, liberty, or 
hundred. 
Si plures conditiones ascriptre fuerunt donationi con
junctim, omnibus est parendum; et ad veritatem 
copUlative requiritur quod utraque pars sit vera, si 
divisim, quilibet vel alteri forum satis est obtempe
rare; et in dis junctivis, sufficit alteram partem esse 
veram I say pl(y)uriyz k;}ndishiyowniyz ;}skriptiy 
fyuwir;}nt d;}neyshiyownay k;}nj�l)kt;}m, omn;}b;}s est 
p;}rend;}m, et red vehr;}teyt;}m kopy;}l;}tayviy r;}kwihr;}t;}r 
kwod yuwtreykwiy parz sit vir;}, say d;}vayz;}m, 
kwaybb;}t vel olt;}ray for;}m seyt;}s est obtemp;}reriy, et 
in disj�l)ktayv;}s, sM;}s;}t olt;}r;}m part;}m esiy vir;}m/. If 
several conditions are conjunctively written in a gift, the 
whole of them must be complied with; and with respect 
to their truth, it is necessary that every part be true, 
taken jointly; if the conditions are separate, it is suffi
cient to comply with either one or other of them; and 
being disjunctive, that one or the other be true. 
1386 
Si plures sint fidejussores, quotquot erunt numero, 
singuli in solidum tenentur /say pl(y)uriyz sint 
fayd;}j�soriyz kwotkwot ehr;}nt n(y)uwm;}row, sil)gy;}lay 
in sol;}d;}m t;}nent;}r/. If there are more sureties than 
one, how many soever they shall be, they shall each be 
held for the whole. 
Si prius I say pray;}s/. Lat. In old practice, if before. 
Formal words in the old writs for summoning juries. 
Si quidem in nomine, cognomine, prrenomine legata
rii testator erraverit, cum de persona constat, nihi
lominus valet legatum Isay kwayd;}m in nom;}niy, 
kognom;}niy, priynom;}niy leg;}teriyay testeyt;}r 
ehrrev;}r;}t, k�m diy p;}rsown;} konst;}t, nay(h);}l;}mayn;}s 
vrel;}t l;}geyt;}m/. Although a testator may have mistak
en the nomen, cognomen, or prrenomen of a legatee, yet, 
if it be certain who is the person meant, the legacy is 
valid. 
Si quid universitati debetur singulis non debetur, 
nec quod debet universitas singuli debent I say kwid 
yuwn;}v;}rs;}teytay d;}biyt;}r, sil)gy;}l;}s non d;}biyt;}r, nek 
kwod deb;}t yuwn;}v�rs;}tres sil)gy;}lay deb;}nt/. If any
thing be owing to an entire body [or to a corporation], it 
is not owing to the individual members; nor do the 
individuals owe that which is owing by the entire body. 
1 Bl.Comm. 484. 
Si quis Isay kwis/. Lat. In the civil law, if any one. 
Formal words in the prretorian edicts. The word "quis, " 
though masculine in form was held to include women. 
Si quis cum totum petiisset partem petat, exceptio 
rei judicatre vocet I say kwis k�m towt;}m petiyis;}t 
part;}m pet;}t, ;}ksepsh(iy)ow riyay juwd;}keytiy VOWS;}t/. 
If a party, when he should have sued for an entire claim, 
sues only for a part, the judgment is res judicata against 
another suit. 
Si quis custos fraudem pupillo fecerit, a tutela remo
vendus est I say kwis k�st;}s frod;}m pyuwpilow fiys;}r;}t, 
ey tyuwtiyb remowvendus est/. If any guardian should 
perform a fraudulent act against a ward, he must be 
removed from his charge. 
Si quis prregnantem uxorem reliquit, non videtur 
sine liberis decessisse I say kwis pregnrent;}m �ksor;}m 
r;}likw;}t, non v;}diyt;}r sayniy lib;}r;}s d;}siysisiy I. If a 
man dies, leaving his wife pregnant, he shall not be 
considered to have died without children. A rule of the 
civil law. 
Si quis, unum percusserit, cum alium percutere vel
let, in felonia tenetur Isay kwis, yuwn;}m p;}rk�s;}r;}t, 
k�m eyl(i)y;}m p;}rkyuwt;}riy vel;}t, in f;}lown(i)y;} 
t;}niyt;}r/. If a man kill one, meaning to kill another, he 
is held guilty of felony. 
Si recognoscat Isay rek;}gnosk;}t/. Lat. If he acknowl
edge. In old practice. A writ which lay for a creditor 
against his debtor for money numbered (pecunia numer
ata) or counted; that is, a specific sum of money, which 
the debtor had acknowledged in the county court, to owe 
him, as received in pecuniis numeratis.

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1387 
Sister. A woman who has the same father and mother 
with another, or has one of them only. In the first case, 
she is called sister, simply; in the second, half-sister. 
The word is the correlative of "brother." 
Sister corporation. Two corporations having common 
or substantially common ownership by same sharehold
ers. Battelstein Inv. Co. v. U. S., D.C.Tex., 302 F.Supp. 
320, 322. 
Sister-in-law. Sister of one's spouse; wife of one's broth
er; wife of one's spouse's brother. 
Si suggestio non sit vera, literre patentes vacure sunt 
/say s:}gjest(i)yow non sit vir:}, lit:}riy p:}tentiyz vrekyu
wiy solnt/. If the suggestion be not true, the letters 
patent are void. 
Sit. To hold court; to do any act of a judicial nature. To 
hold a session, as of a court, grand jury, legislative body, 
etc. To be formally organized and proceeding with the 
transaction of business. 
Sit-down strike. A strike in which the workers stay in 
the plant but refuse to work. 
Site / sayt/ . A plot of ground suitable or set apart for 
some specific use. A seat or ground plot. The term 
does not of itself necessarily mean a place or tract of 
land fixed by definite boundaries. See also Place; Scite 
or site; Situs. 
Si te fecerit securum / say tiy fes:}r:}t s:}kyur:}m/. If he 
make you secure. See Si fecerit te securum. 
Sithcundmam. In Saxon law, the high constable of a 
hundred. 
Sitting. The part of the year in which judicial business 
is transacted. A session or term of court; usually plu
ral. See Session. 
Sitting in bank or en bane. A session of the court in 
which all judges or at least a quorum of judges sit and 
hear cases. Under current practice, the term is re
served almost exclusively for appellate courts and in 
this connection it is contrasted with single justice sit
ting. See En banco 
Sittings in camera. See Chamber. 
Situate. To give a specific position to; fix a site for; to 
place in certain position. 
Situation. State of being placed; posture. Position as 
regards conditions and circumstances; state; condition. 
Bellomy V. Bruce, 303 Ill.App. 349, 25 N.E.2d 428, 433. 
Situation of danger. Within the meaning of the last 
clear chance rule as applicable to a plaintiff operating a 
moving vehicle, is reached only when plaintiff, in mov
ing toward path of an on-coming train or vehicle has 
reached a position from which he cannot escape by 
ordinary care, and it is not enough that plaintiff was 
merely approaching a position of danger. See Last clear 
chance doctrine. 
Situs / sayt:}s/ . Lat. Situation; location; e.g. location or 
place of crime or business. Site; position; the place 
where a thing is considered, for example, with reference 
SKIPTRACING 
to jurisdiction over it, or the right or power to tax it. It 
imports fixedness of location. Situs of property, for tax 
purposes, is determined by whether the taxing state has 
sufficient contact with the personal property sought to 
be taxed to justify in fairness the particular tax. Town 
of Cady V. Alexander Const. Co., 12 Wis.2d 236, 107 
N.W.2d 267, 270. 
Generally, personal property has its taxable "situs" in 
that state where owner of it is domiciled. Smith V. 
Lummus, 149 Fla. 660, 6 So.2d 625, 627, 628. Situs of a 
trust means place of performance of active duties of 
trustee. Campbell V. Albers, 313 Ill.App. 152, 39 N.E.2d 
672, 676. 
For business situs, see Business. See also Place. 
Sive tota res evincatur, sive pars, habet regressum 
emptor in venditorem /sayviy towt:} riyz iyviIJkeyt:}r, 
sayviy parz, heyb:}t r:}gres:}m em(p)t:}r in vEmd:}tor:}m /. 
The purchaser who has been evicted in whole or in part 
has an action against the vendor. 
Sixteenth Amendment. An amendment of 1913 to the 
U.S. Constitution, which permits Congress to tax in
comes, "from whatever source derived, without appor
tionment among the several states, and without regard 
to any census or enumeration ." The amendment was 
adopted in response to the Supreme Court's decision in 
Pollock V. Farmers' Loan and Trust Co., which held that 
the 1894 federal income tax was unconstitutional as 
applied to rental income from land. The thrust of the 
amendment was to remove the apportionment require
ment for taxes on income. Brushaber V. Union Pacific 
R.R. Co., 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493. 
Sixth Amendment. The Sixth Amendment of the U.S. 
Constitution includes such rights as the right to speedy 
and public trial by an impartial jury, right to be in
formed of the nature of the accusation, the right to 
confront witnesses, the right to assistance of counsel and 
compulsory process. 
Sixty-day notice. Under Taft-Hartley Act, notice which 
must be given by either party to a collective bargaining 
agreement for reopening or terminating the contract. 
During such period, strikes and lockouts are prohibited. 
See 29 U.S.C.A. § 158(d). 
Skeleton bill. One drawn, indorsed, or accepted in 
blank. 
Skill. Practical and familiar knowledge of the principles 
and processes of an art, science, or trade, combined with 
the ability to apply them in practice in a proper and 
approved manner and with readiness and dexterity. 
Skilled witnesses. One possessing knowledge and expe
rience as to particular subject which are not acquired by 
ordinary persons. Such witness is allowed to give evi
dence on matters of opinion and abstract fact. See also 
Expert witness. 
Skinpop. An intramuscular injection of narcotic drug. 
Skiptracing. Service which assists creditors in locating 
delinquent debtors or persons who have fled to avoid 
prosecution. Also, such services may include location of

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SKIPTRACING 
missing heirs, witnesses, stockholders, bondholders, 
spouses, assets, bank accounts, or the like. 
S.L. Abbreviation for "session [or statute] laws." 
Slains. See Letters of slains or slanes. 
Slander. The speaking of base and defamatory words 
tending to prejudice another in his reputation, commu
nity standing, office, trade, business, or means of liveli
hood. Little Stores v. Isenberg, 26 Tenn.App. 357, 172 
S.W.2d 13, 16. Oral defamation; the speaking of false 
and malicious words concerning another, whereby inju
ry results to his reputation. Lloyd v. Commissioner of 
Internal Revenue, C.C.A.7, 55 F.2d 842, 844. The essen
tial elements of slander are: (a) a false and defamatory 
statement concerning another; (b) an unprivileged com
munication to a third party; (c) fault amounting at least 
to negligence on the part of the publisher; and (d) either 
actionability of the statement irrespective of harm or 
the existence of special harm caused by the publication. 
Restatement, Second, Torts § 558. 
"Libel" and "slander" are both methods of def
amation; the former being expressed by print, writing, 
pictures, or signs; the latter by oral expressions or 
transitory gestures. See Restatement, Second, Torts, 
§ 568. 
See also Actionable per quod; Actionable per se; Per 
quod; Per se; Slanderous per se. Compare libel. 
Slanderer. One who commits slander. See Slander. 
Slander of title. A false and malicious statement, oral 
or written, made in disparagement of a person's title to 
real or personal property, or of some right of his causing 
him special damage. Higgins v. Higgins, 103 Nev. 443, 
744 P.2d 530, 531. See also Jactitation. 
Slanderous per quod. See Per quod. 
Slanderous per se. Slanderous in itself; such words as 
are deemed slanderous without proof of special damages. 
Words which intrinsically, without innuendo, import 
injury, and are words from which damage, by consent of 
men generally, flows as a natural consequence. Koer
ner v. Lawler, 180 Kan. 318, 304 P.2d 926, 929. Gener
ally an utterance is deemed "slanderous per se" when 
publication (a) charges the commission of a crime; (b) 
imputes some offensive or loathsome disease which 
would tend to deprive a person of society; (c) charges a 
woman is not chaste; or (d) tends to injure a party in his 
trade, business, office or occupation. Munafo v. Hel
fand, D.C.N.Y., 140 F.Supp. 234, 238. See Restatement, 
Second, Torts, § 570. 
Slate. List of candidates for public office or for positions 
on board of directors. 
Slave. A person who is wholly subject to the will of 
another; one who has no freedom of action, but whose 
person and services are wholly under the control of 
another. One who is under the power of a master, and 
who belongs to him; so that the master may sell and 
dispose of his person, of his industry, and of his labor, 
without his being able to do anything, have anything, or 
1388 
acquire anything, but what must belong to his master. 
The 13th Amendment abolished slavery. 
Slavery. The condition of a slave; that civil relation in 
which one man has absolute power over the life, fortune, 
and liberty of another. The 13th Amendment abolished 
slavery. 
Slave-trade. The traffic in slaves, or the buying and 
selling of slaves for profit. 
Slay. This word, in an indictment, adds nothing to the 
force and effect of the word "kill," when used with 
reference to the taking of human life. It is particularly 
applicable to the taking of human life in battle; and, 
when it is not used in this sense, it is synonymous with 
"kill." 
Slayer's rule. Under this doctrine, person who kills 
another and persons claiming through or under that 
person may not share in distribution of decedent's estate 
as heirs, devisees, or legatees and may not collect pro
ceeds as beneficiaries under decedent's life policy when 
homicide was felonious and intentional, but may share 
in distribution and collect proceeds when homicide was 
unintentional, even if it was result of gross negligence. 
Ford v. Ford, 307 Md. 105, 512 A.2d 389, 393. See also 
Son of Sam law. 
Sleeping or silent partner. See Silent partner. 
Slight. A word of indeterminate meaning, variously 
defined as inconsiderable; unimportant; trifle; remote; 
insignificant. Moxley v. Hertz, 216 U.S. 344, 356, 30 
S.Ct. 305, 308, 54 L.Ed. 510. 
As to slight Care; Evidence; Fault and Negligence, see 
those titles. 
Slip law. A legislative enactment which is separately 
and promptly published in pamphlet or in single sheet 
format after its passage. 
Slip law print. An annotated pamphlet print (called a 
slip law print) of each public and private law enacted by 
Congress as issued shortly after being signed by the 
President. Slip laws are cumulated into the U.S. Stat
utes at Large. See Statute (Statutes at large). 
Slip opinion. An individual court decision published 
separately soon after it is rendered. 
Slot machine. Within statute prohibiting operation of 
slot machines or similar gambling device, an apparatus 
by which a person depositing money therein may, by 
chance, get directly or indirectly money or articles of 
value worth either more or less than the money deposit
ed. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622, 624. 
Slough. An arm of a river, flowing between islands and 
the main-land, and separating the islands from one 
another. Sloughs have not the breadth of the main 
river, nor does the main body of water of the stream 
flow through them. 
Slowdown. An organized effort by workers in a plant 
by which production is slowed from normal pace to bring 
pressure on the employer for better terms and condi
tions of working.

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1389 
Sluiceway. An artificial channel into which water is let 
by a sluice. Specifically, a trench constructed over the 
bed of a stream, so that logs or lumber can be floated 
down to a convenient place of delivery. 
Slum. A squalid, run-down section of a city, town or 
village, ordinarily inhabited by the very poor and desti
tute classes; overcrowding is usually a prevailing char
acteristic. 
Slush fund. Money collected or spent for corrupt pur
poses such as illegal lobbying or the like. Boehm v. 
United States, C.C.A.Mo., 123 F.2d 791, 812. 
Small Business Administration. The fundamental 
purposes of the federal Small Business Administration 
(SBA) are to: aid, counsel, assist, and protect the inter
ests of small business; insure that small business con
cerns receive a fair proportion of Government purchas
es, contracts, and subcontracts, as well as of the sales of 
Government property; make loans to small business 
concerns, State and local development compani �s, and 
the victims of floods or other catastrophes, or of certain 
types of economic injury; license, regulate, and make 
loans to small business investment companies; improve 
the management skills of small business owners, poten
tial owners, and managers; conduct studies of the eco
nomic environment; and guarantee leases entered into 
by small business concerns as well as surety bonds 
- issued to them. 
Small business corporation. A corporation which sat
isfies the definition of I.R.C. § 1361( b), § 1244(c)(2), or 
both. Satisfaction of I.R.C. § 1361(b) permits an S corpo
ration election, and satisfaction of § 1244 enables the 
shareholders of the corporation to claim an ordinary loss 
on the worthlessness of the stock. 
Small Business Investment Act. Federal legislation 
enacted in 1958 under which investment companies may 
be organized for supplying long term equity capital to 
small businesses. Such Act is implemented by the 
Small Business Administration. 
Small claims court. A special court (sometimes also 
called "Conciliation Court") which provides expeditious, 
informal, and inexpensive adjudication of small claims. 
Jurisdiction of such courts is usually limited to collec
tion of small debts and accounts. Proceedings are very 
informal with parties normally representing themselves. 
These courts of limited jurisdiction are often divisions or 
departments of courts of general jurisdiction. 
Small estate probate. See Estate. 
Small loan acts. Statutes in effect in nearly all the 
States fixing the maximum legal rate of interest and 
other terms on short-term loans by banks and finance 
companies. 
Smart-money. Vindictive, punitive or exemplary dam
ages given by way of punishment and example, in cases 
of gross misconduct of defendant. See Damages. 
Smith Act. Federal law which punishes, among other 
activities, the advocacy of the overthrow of the govern-
SOCAGE 
ment by force or violence. An anti-sedition law. 18 
U.S.C.A. § 2385. See Sedition. 
Smuggling. The offense of importing or exporting pro
hibited articles without paying the duties chargeable 
upon them. The fraudulent taking into a country, or 
out of it, merchandise which is lawfully prohibited. 
Quoted and approved by Brewer, J., in Dunbar v. U. S., 
156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390. 
"Smuggle" has well-understood meaning at common 
law, signifying bringing on shore, or carrying from 
shore, of goods, wares, and merchandise for which duty 
has not been paid, or goods the importation or exporta
tion whereof is prohibited. Williamson v. U. S., C.A. 
CaL, 310 F.2d 192, 195. See 18 U.S.C.A. §§ 545, 546. See 
also Contraband. 
Smut. See Obscene. 
So. In the same manner as has been stated; under this 
circumstance; in this way, referring to something which 
is asserted. Sometimes the equivalent of "hence," or 
"therefore," and it is thus understood whenever what 
follows is an illustration of, or conclusion from, what has 
gone before. 
In connection with time, it suggests a period of indefi
nite duration. Thus, an agreement to pay rent "within 
a week or so". 
Soakage /sowk;}j/. As used in the laws and regulations 
relating to withdrawal of liquors from bonded warehous
es, the spirits which in course of time in the warehouse 
had been absorbed by the staves of the barrel containing 
it. 
Sober. Moderate in, or abstinent from, the use of intoxi
cating liquors. 
Sobriety checkpoint. A public place at which police 
maintain a roadblock to detain motorists briefly to de
termine whether they have been operating a motor 
vehicle under the influence of liquor. Such roadblocks 
do not violate Fourth Amendment search and seizure 
protections. Michigan Dept. of State Police v. Sitz, 110 
S.Ct. 2481 (1990). 
Sobriety tests. See Blood alcohol count; Breathalyzer 
test; Field sobriety tests; Intoximeter; Into xilyzer; Sobriety 
checkpoint. 
Sobrini and sobrinre / sabraynay / sabrayniy / . Lat. In 
the civil law, the children of cousins, german in general. 
Soc, sok, or soka. In Saxon law, jurisdiction; a power 
or privilege to administer justice and execute the laws; 
also a shire, circuit, or territory. 
Soca /so(w)k;}/. A seigniory or lordship, enfranchised by 
the king, with liberty of holding a court of his socmen or 
socagers; i.e., his tenants. 
Socage /sowk;}j/. A species of tenure, in England, 
whereby the tenant held certain lands in consideration 
of certain inferior services of husbandry to be performed 
by him to the lord of the fee. In its most general and 
extensive signification, a tenure by any certain and 
determinate service. And in this sense it is by the 
ancient writers constantly put in opposition to tenure by 
chivalry or knight-service, where the render was precar-

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SOCAGE 
ious and uncertain. Socage is of two sorts,-free socage, 
where the services are not only certain, but honorable; 
and villein socage, where the services, though certain, 
are of baser nature. Such as hold by the former tenure 
are also called in Glanvil and other authors by the name 
of "liberi sokemanni, " or tenants in free socage. By the 
statute 12 Car. 2, c. 24, all the tenures by knight-service 
were, with one or two immaterial exceptions, converted 
into free and common socage. 
Socager /so(w)k;)j;)r/. A tenant by socage. 
Socagium idem est quod servitum socre; et soca, 
idem est quod caruca /s;)keyj(iy);)m ayd;)m est 
s;)rvish(iy);)m sowsiy, et sowk;), ayd;)m est kwod 
k;)hruwk;)/. Socage is the same as service of the soc; 
and soc is the same thing as a plow. 
Socer /sows;)r/. Lat. In the civil law, a wife's father; a 
father-in-law. 
Social contract, or compact. In political philosophy, a 
term applied to the theory of the origin of society 
associated chiefly with the names of Hobbes, Locke and 
Rousseau, though it can be traced back to the Greek 
Sophists. Rousseau (Contract Social) held that in the 
pre-social state man was unwarlike and timid. Laws 
resulted from the combination of men who agreed, for 
mutual protection, to surrender individual freedom of 
action. Government must therefore rest on the consent 
of the governed. 
Social guest. For purpose of determining landowner's 
duty of care, -"social guest" is person who goes onto 
property of another for companionship, diversion and 
enjoyment of hospitality and is treated as licensee. Gre
gor by Gregor v. Kleiser, 111 Ill.App.3d 333, 67 Ill.Dec. 
38, 40 443 N.E.2d 1162, 1164. See also Guest. 
Social insurance. See Insurance. 
Social Security Act. Federal legislation creating the 
Social Security Administration (q.v.). 42 U.S.C.A. § 301 
et seq. See also Federal Insurance Contributions Act. 
Social Security Administration. An agency of the 
Department of Health and Human Services under the 
direction of the Commissioner of Social Security which 
administers a national program of contributory social 
insurance whereby employees, employers, and the self
employed pay contributions which are pooled in special 
trust funds. When earnings stop or are reduced because 
the worker retires, dies, or becomes disabled, monthly 
cash benefits are paid to replace part of the earnings the 
person or family has lost. In addition to administering 
the various retirement, survivors, disability, and supple
mental security income (SSI) benefit programs, the SSA 
oversees the administrative hearing and appeals process 
involving benefit claims. 
Socida /s;)sayd;)/. In civil law, the name of a contract by 
which one man delivers to another, either for a small 
recompense or for a part of the profits, certain animals 
on condition that if any of them perish they shall be 
replaced by the bailee or he shall pay their value. 
1390 
A contract of hiring, with the condition that the bailee 
takes upon him the risk of the loss of the thing hired. 
Sociedad /sowsiyeydad/. In Spanish law, partnership. 
Socieda anonima / sowsiyeydad anonima/. In Spanish 
and Mexican law, a business corporation. 
Societas /s;)say;)tres/. Lat. In the civil law, partnership; 
a partnership; the contract of partnership. A contract 
by which the goods or labor of two or more are united in 
a common stock, for the sake of sharing in the gain. 
Societas leonina /s;)say;)tres liy;)nayn;)/. That kind of 
society or partnership by which the entire profits belong 
to some of the partners, in exclusion of the rest. So 
called in allusion to the fable of the lion, who, having 
entered into partnership with other animals for the 
purpose of hunting, appropriated all the prey to himself. 
Societas navalis /s;)say;)tres nreveyl;)s/. A naval part
nership; an association of vessels; a number of ships 
pursuing their voyage in company, for purposes of mutu
al protection. 
Societe /sowsiyeytey/. Fr. In French law, partnership. 
See Commendam. 
Societe anonyme /sowsiyeytey anowniym /. In French 
law originally a partnership conducted in the name of 
one of the members; the others were strictly secret 
partners. To creditors of the firm they came into no 
relation and under no liability. An association where 
the liability of all the partners is limited. It had in 
England until lately no other name than that of "char
tered company," meaning thereby a joint-stock company 
whose shareholders, by a charter from the crown, or a 
special enactment of the legislature, stood exempted 
from any liability for the debts of the concern, beyond 
the amount of their subscriptions. 
Societe d'acquets. A written contract between husband 
and wife to regard as community property only those 
things which are acquired during the marriage. 
Societe en commandite / sowsiyeytey on komondiyt /. 
In Louisiana, a partnership formed by a contract by 
which one person or partnership agrees to furnish an
other person or partnership a certain amount, either in 
property or money, to be employed by the person or 
partnership to whom it is furnished, in his or their own 
name or firm, on condition of receiving a share in the 
profits, in the proportion determined by the contract, 
and of being liable to losses and expenses to the amount 
furnished and no more. 
Societe en nom collectif /sowsiyeytey on nowm 
kolektiyf/. A partnership in which all the members are 
jointly and severally liable. 
Societe en participation / sowsiyeytey on partisiypa
syown/. A joint adventure. 
Societe par actions / sowsiyeytey par aks(i)yown/. A 
joint stock company. 
Society. An association or company of persons (general
ly unincorporated) united together by mutual consent, 
in order to deliberate, determine, and act jointly for

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1391 
some common purpose. In a wider sense, the communi
ty or public; the people in general. Gilmer v. Stone, 
120 V.S. 586, 7 S.Ct. 689, 30 L.Ed. 734. 
Term "society," loss of which is recoverable element 
in death action under general maritime law, embraces 
broad range of mutual benefits each family member 
receives from other's continued existence, including 
love, affection, care, attention, companionship, comfort 
and protection; thus, widow, parent, brother, sister, or 
child may be compensated for loss of society. Consol
idated Machines, Inc. v. Protein Products Corp., D.C. 
Fla., 428 F.Supp. 209, 228. 
Within rule that husband is entitled to damages for 
loss of wife's "society" through wrongful injury, means 
such capacities for usefulness, aid, and comfort as a wife 
as she possessed at the time of the injuries. Homan v. 
Missouri Pac. R. Co., 335 Mo. 30, 70 S.W.2d 869. See 
also Consorti um. 
Civil society-usually, a state, nation, or body politic. 
Socii mei socius meus socius non est I sowshiyay 
miyay sowsh(iy);}s miy;}s sowsh(iy);}s non est/. The part
ner of my partner is not my partner. 
Socius Isowsh(iy);}s/. Lat. In the civil law, a partner. 
Socman Isokm;}n/. A socager. 
Free socmen. In old English law, tenants in free socage. 
Socmanry Isokm;}nriy/. Free tenure by socage. 
Socna Isokn;}/. A privilege, liberty, or franchise. 
Sodomite Isod;}mayt /. One who has been guilty of sod-
omy. 
Sodomy. While variously defined in state criminal stat
utes, is generally oral or anal copulation between hu
mans, or between humans and animals. State v. Young, 
140 Or. 228, 13 P.2d 604, 607. 
Soft dollars. Securities industry term for credits that 
brokers give big investors, such as pension funds and 
their money managers, in return for their stock trading 
business. 
So help you God. The words commonly at the end of a 
common oath. 
Soil bank. A federal agricultural program under which 
farmers are paid for not growing crops, or for growing 
noncommercial vegetation, in order to preserve the qual
ity of the soil and stabilize commodity prices by avoiding 
surpluses. 
Soit Isw8./swey/. Fr. Let it be; be it so. A term used 
in several laws; French phrases employed in English 
law, particularly as expressive of the will or assent of 
the sovereign in formal communications with par
liament or with private suitors. 
Soit baile aux commons Iswa beyl ow kom;}nz/. Let it 
be delivered to the commons. The form of indorsement 
on a bill when sent to the house of commons. 
Soit baile aux seigneurs Iswa beyl ow seynyurz/. Let 
it be delivered to the lords. The form of indorsement on 
a bill in parliament when sent to the house of lords. 
SOLE 
Soit droit fait al partie I swa droyt feyt al partiy I. In 
English law, let right be done to the party. A phrase 
written on a petition of right, and subscribed by the 
king. 
Soit fait comme il est desire Iswa feyt kom iyl dezirey/. 
Let it be as it is desired. The royal assent to private 
acts of parliament. 
Sojourning Is;}j�rniIJ/. This term means something 
more than "traveling," and applies to a temporary, as 
contradistinguished from a permanent, residence. In re 
Gahn's Will, 11 0 Misc. 96, 180 N.Y.S. 262, 266. 
Sokemanries Iso(w)km;}nriy z/. Lands and tenements 
which were not held by knight-service, nor by grand 
serjeanty, nor by petit, but by simple services; being, as 
it were, lands enfranchised by the king or his predeces
sors from their ancient demesne. Their tenants were 
sokemans. 
Sokemans Iso(w)km;}nz/. In old English law, those who 
held their lands in socage. 
Soke-reeve Iso(w)kriyv/. The lord's rent gatherer in the 
soca. 
Sola ac per se senectus donationem testamentum aut 
transactionem non vitiat Isowb rek p�r siy s;}nekt;}s 
d;}neyshiyown;}m test;}ment;}m ot trcenzrekshiyown;}m 
non vishiy;}t/. Old age does not alone and of itself 
vitiate a will or gift. 
Solar Isowlar/. In Spanish law, land; the demesne, with 
a house, situate in a strong or fortified place. 
Solar day. That period of time which begins at sunrise 
and ends at sunset. 
Solares Isowlareys/. In Spanish law, lots of ground. 
This term is frequently found in grants from the Span
ish government of lands in America. 
Solarium Is;}leriy;}m/. Lat. In the civil law, a rent paid 
for the ground, where a person built on the public land. 
A ground rent. 
Solar month. A calendar month. See Month. 
Solatium Is;}leysh(iy);}m/. Compensation. Damages al
lowed for injury to the feelings. 
Sold. See Sale. 
Soldiers' and Sailors' Civil Relief Act. A Federal law 
that suspends or modifies a military person's civilliabili
ties and requires persons who want to enforce their 
claims against persons in the service to follow certain 
procedures. 50 V.S.C.A. App. § 501 et seq. 
Soldier's will. Similar to a seaman's will which is 
informal in nature and may dispose only of the personal 
property of the testator. A nuncupative will (q.v.). 
Sold note. A note given by a broker, who has effected a 
sale of merchandise, to the buyer, stating the fact of 
sale, quantity, price, etc. Also called "confirmation" 
notice. 
Sole. Single; individual; separate; the opposite of joint; 
as a sole tenant. Comprising only one person; the

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SOLE 
opposite of aggregate; as a corporation sole. Without 
another or others. 
Unmarried; as a feme sole. 
Sole actor doctrine. Under this doctrine a principal is 
charged with the knowledge of his agent. It contem
plates that agent must have ostensibly endeavored to 
benefit his principal, and even though he did not do so 
and his acts were for his personal benefit, possibly 
through defalcation, the third party who obligated him
self must have been under the impression that he was 
dealing with the principal. General American Life Ins. 
Co. v. Anderson, D.C.Ky., 46 F.Supp. 189, 195, 196, 198. 
It is based on the presumption that by reason of the 
relationship between an agent and his principal the 
principal is presumed to have been told everything the 
agent has done and presumed to have known of his 
actions and promises. Federal Deposit Ins. Corporation 
v. Pendleton, D.C.Ky., 29 F.Supp. 779, 782, 783. 
Sole and unconditional owner. See Owner. 
Sole cause. As respects negligence of plaintiff or third 
party as the sole cause of injury so as to relieve defen
dant from liability, means the act or negligence of 
plaintiff or a third party directly causing the injury 
without any concurring or contributory negligence of 
defendant. Dixon v. Wabash R. Co., Mo.App., 198 
S.W.2d 395, 398. Term means the act or negligence of 
the plaintiff or a third party directly causing the injury 
without any concurring or contributory negligence of 
defendant. Jurgens v. Thompson, 350 Mo. 914, 169 
S.W.2d 353, 357. See also Proximate cause. 
Solemn / s6l;}m/. Formal; in regular form; with all the 
forms of a proceeding. As to solemn oath, see Corporal 
oath; as to solemn war, see War. 
Solemnes legum formulre / s;}lemniyz liyg;}m f6rmy;}liy /. 
Lat. In the civil law, solemn forms of laws; forms of 
forensic proceedings and of transacting legal acts. One 
of the sources of the unwritten law of Rome. 
Solemnitas attachiamentorum /s;}lemn;}tres ;}trech(iy)
;}ment6r ;}m /. In old English practice, solemnity or for
mality of attachments. The issuing of attachments in a 
certain formal and regular order. 
Solemnitates juris sunt observandre / s;}lemn;} teytiyz 
jur;}s s;}nt obs;}rvrendiy /. The solemnities of law are to 
be observed. 
Solemnity /s;}lemn;}tiy/. A rite or ceremony; the for
mality established by law to render a contract, agree
ment, or other act valid. 
Solemnization. To enter marriage publicly before wit
nesses in contrast to a clandestine or common law 
marriage. 
Solemnize /s61;}mnayz/. To enter marriage publicly be
fore witnesses in contrast to a clandestine or common 
law marriage. 
Solemn occasion. Within constitutional provision em
powering the Legislature to require the opinion of the 
Justices on important questions of law means occasion 
1392 
when such questions of law are necessary to be deter
mined by the body making the inquiry in the exercise of 
the power intrusted to it by the Constitution or laws. 
Sole proprietorship. A form of business in which one 
person owns all the assets of the business in contrast to 
a partnership, trust or corporation. The sole proprietor 
is solely liable for all the debts of the business. 
Sole source rule. In suits for false advertising at com
mon law, the plaintiff may not recover unless it can 
demonstrate that it has a monopoly in the sale of goods 
possessing the advertised trait, because only in that 
situation were the common law courts confident that the 
plaintiff would be harmed by the defendant's false ad
vertising. This restrictive doctrine is known as the sole 
source rule. 
Solicit. To appeal for something; to apply to for obtain
ing something; to ask earnestly; to ask for the purpose 
of receiving; to endeavor to obtain by asking or plead
ing; to entreat, implore, or importune; to make petition 
to; to plead for; to try to obtain; and though the word 
implies a serious request, it requires no particular de
gree of importunity, entreaty, imploration, or supplica
tion. People v. Phillips, 70 Cal.App.2d 449, 160 P.2d 
872, 874. To awake or incite to action by acts or 
conduct intended to and calculated to incite the act of 
giving. People ex reI. Friedman v. Framer, 208 Misc. 
236, 139 N.Y.S.2d 331, 337. The term implies personal 
petition and importunity addressed to a particular indi
vidual to do some particular thing. 
As used in context of solicitation to commit a crime, 
term means to command, authorize, urge, incite, re
quest, or advise another to commit a crime. See also 
Solicitation. 
Solicitation. Asking; enticing; urgent request. The 
inchoate offense of requesting or encouraging someone 
to engage in illegal conduct. Any action which the 
relation of the parties justifies in construing into a 
serious request. Thus "solicitation of prostitution" is 
the asking or urging a person to engage in prostitution. 
The word is also used in such phrases as "solicitation to 
larceny," to bribery, etc. 
For the crime of solicitation to be completed, it is only 
necessary that the actor, with intent that another per
son commit a crime, have enticed, advised, incited, or
dered or otherwise encouraged that person to commit a 
crime. The crime solicited need not be committed. 
A person is guilty of solicitation to commit a crime if 
with the purpose of promoting or facilitating its commis
sion he commands, encourages or requests another per
son to engage in specific conduct which would constitute 
such crime or an attempt to commit such crime or which 
would establish his complicity in its commission or at
tempted commission. Model Penal Code, § 5.02. See 
also e.g. 18 U.S.C.A. § 373 (solicitation to commit a 
violent crime). 
Under Model Penal Code, § 5.05, solicitation of a 
crime is of the same grade and degree as the most 
serious offense solicited.

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1393 
Solicitation of bribe. Asking, or enticing, or requesting 
of another to commit crime of bribery. State v. Wallace, 
Del.Super., 9 Storey 123, 214 A.2d 886, 889. See e.g. 18 
U.S.C.A. § 201. 
Soliciting agent. In insurance law, is a special agent 
and generally has authority only to solicit insurance, 
submit applications to company and perform such acts 
as are incident to that power. Dixie Life & Acc. Ins. Co. 
v. Hamm, 233 Ark. 320, 344 S.W.2d 601, 603. 
Solicitor. Chief law officer of city, town, or other gov
ernmental body or department; see e.g. Solicitor General. 
In England, to become a solicitor a person must be 
articled to a practicing solicitor, pass the necessary 
examinations conducted by the Law Society, and be 
admitted by the Master of the Rolls. A solicitor may 
practice in the Bankruptcy Court, county courts, petty 
sessions, certain proceedings in the Crown Court, most 
inferior courts, and also in chambers of the Supreme 
Court. Such are controlled by the Solicitors Act of 1974. 
See also Barrister. 
Solicitor General. The Solicitor General of the United 
States is in charge of representing the Government in 
suits and appeals in the Supreme Court and as well in 
lower federal trial and appellate courts in cases involv
ing the interests of the United States. He decides what 
cases the Government should ask the Supreme Court to 
review and what position the Government should take 
in cases before the Court. He supervises the prepara
tion of the Government's Supreme Court briefs and 
other legal documents and the conduct of the oral argu
ments in the Court and argues most of the important 
cases himself. The Solicitor General's duties also in
clude deciding whether the United States should appeal 
in all cases it loses before the lower federal courts. 28 
U.S.C.A. §§ 505, 517, 518. 
Solidarity. In the civil law, when several persons bind 
themselves towards another for the same sum, at the 
same time, and in the same contract; and so obligate 
themselves that each may be compelled to pay the whole 
debt, and that payment made by one of them exonerates 
the others towards the creditor; and the obligation thus 
contracted is one, in solido, although one of the debtors 
be obliged differently from the others to the payment of 
one and the same thing; as if the one be but conditional
ly bound, while the engagement of the others is pure 
and simple, or if the one is allowed a term which is not 
granted to the others. 
Solidary. A term of civil-law origin, signifying that the 
right or interest spoken of is joint or common. A 
"solidary obligation" corresponds to a "joint and sever
al" obligation in the common law; that is, one for which 
several debtors are bound in such wise that each is 
liable for the entire amount, and not merely for his 
proportionate share. But in the civil law the term also 
includes the case where there are several creditors, as 
against a common debtor, each of whom is entitled to 
receive the entire debt and give an acquittance for it. 
Solidum Isol�d�m/. Lat. In the civil law, a whole; an 
entire or undivided thing. 
SOLUTIO INDEBITI 
Solinum Is�layn�m /. In old English law, two plowlands, 
and somewhat less than a half. 
Solitary confinement. In a general sense, the separate 
confinement of a prisoner, with only occasional access of 
any other person, and that only at the discretion of the 
jailer. In a stricter sense, the complete isolation of a 
prisoner from all human society, and his confinement in 
a cell so arranged that he has no direct intercourse with 
or sight of any human being, and no employment or 
instruction. Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 
384, 33 L.Ed. 835. 
Solo cedit quod solo implantatur Isowlow siyd�t kwod 
sowlow implrenteyt�r/. That which is planted in the soil 
belongs to the soil. The proprietor of the soil becomes 
also the proprietor of the seed, the plant, and the tree, 
as soon as these have taken root. 
Solo cedit quod solo inredificatur Isowlow siyd�t kwod 
sowlow ined�f�keyt�r/. That which is built upon the 
soil belongs to the soil. The proprietor of the soil 
becomes also proprietor of the building erected upon it. 
Solum provinciale Isowl�m pr�vinshiyeyliy/. Lat. In 
Roman law, the solum italicum (an extension of the old 
Ager Romanus) admitted full ownership, and of the 
application to it of usucapio; whereas the solum provinc
iale (an extension of the old Ager Publicus) admitted of a 
possessory title only, and of longi temporis possessio 
only. Justinian abolished all distinctions between the 
two, sinking the italicum to the level of the provinciale. 
Solum rex hoc non facere potest, quod non potest 
injuste agere Isowl�m reks hok non fres�riy powt�st, 
kwod non powt�st inj�stiy rej�riy I. This alone the king 
cannot do, he cannot act unjustly. 
Solus deus facit hreredem, non homo Isowl�s diy�s 
feys�t h�riyd�m, non howmow I. God alone makes the 
heir, not man. 
Solutio Is�l(y)uwsh(iy)ow/. Lat. In civil law, payment, 
satisfaction, or release; any species of discharge of an 
obligation accepted as satisfactory by the creditor. The 
term refers not so much to the counting out of money as 
to the substance of the obligation. 
Solutio indebiti Is�l(y)uwsh(iy)ow indeb�tay/. In the 
civil law, payment of what was not due. From the 
payment of what was not due arises an obligation quasi 
ex contractu. When one has erroneously given or per
formed something to or for another, for which he was in 
no wise bound, he may redemand it, as if he had only 
lent it. The term "solutio indebiti" is here used in a 
very wide sense, and includes also the case where one 
performed labor for another, or assumed to pay a debt 
for which he was not bound, or relinquished a right or 
released a debt, under the impression that he was legal
ly bound to do so. 
Solutione feodi militis parliamenti, or feodi burgensis 
parliamenti Is�l(y)uwshiyowniy fyuwday mil�t�s 
parl(iy)�menta yrb�rjens�s parl(iy)�menta y/. Old writs 
whereby knights of the shire and burgesses might have 
recovered their wages or allowance if it had been re
fused.

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SOLUTUS 
Solutio pretii emptionis loco habetur 
Is�l(y)uwsh(iy)ow preshiyay em(p)shiyown�s lowkow 
h�biyt�r/. The payment of the price [of a thing] is held 
to be in place of a purchase [operates as a purchase]. 
Solutus Is�l(y)uwt�s/. In the civil law, loosed; freed 
from confinement; set at liberty. 
Solvabilite Isolvabiliytey/. Fr. In French law, ability 
to pay; solvency. 
Solvency. Ability to pay debts as they mature and 
become due. Ability to pay debts in the usual and 
ordinary course of business. Jeck v. O'Meara, 343 Mo. 
559, 122 S.W.2d 897, 903. Present ability of debtor to 
pay out of his estate all his debts. Excess of assets over 
liabilities. Akin v. Hull, 222 Mo.App. 1022, 9 S.W.2d 
688, 690. Also such status of a person's property as that 
it may be reached and subjected by process of law, 
without his consent, to the payment of such debts. Graf 
v. Allen, 230 Mo.App. 721, 74 S.W.2d 61, 66. "Solvency" 
within Bankruptcy Code presupposes ability to make 
ultimate payment of obligations then owed from assets 
then owned. MossIer Acceptance Co. v. Martin, C.A. 
Fla., 322 F.2d 183, 186. The opposite of insolvency (q.v .). 
Kennedy v. Burr, 101 Wash. 61, 171 P.2d 1022, 1024. 
Solvendo esse / solvendow esiy I. Lat. To be in a state 
of solvency; i.e., able to pay. 
Solvendo esse nemo intelligitur nisi qui solidum po
test solvere Isolvendow esiy niymow int�lij�t�r miysay 
kway sol�d�m powt�st solv�riy/. No one is considered to 
be solvent unless he can pay all that he owes. 
Solvendum in futuro /solv€md�m in fyuwtyurow/. Lat. 
To be paid in the future. Used of an indebtedness which 
is said to be debitum in presenti (due now) and solven
dum in futuro (payable in the future). An interest in an 
estate may be rested in presenti, though it be solvendum 
in futuro, enjoyable in the future. 
Solvent. See Solvency. 
Solvere Isolv�riy/. Lat. To pay; to comply with one's 
engagement; to do what one has undertaken to do; to 
release one's self from obligation, as by payment of a 
debt. 
Solvere prenas Isolv�riy piyn�s/. To pay the penalty. 
Solvit / solv�tl . Lat. He paid; paid. 
Solvit ad diem Isolv�d red day�m/. He paid at the day. 
The technical name of the plea, in an action of debt on 
bond, that the defendant paid the money on the day 
mentioned in the condition. 
Solvit ante diem Isolv�d rentiy day�m/. A plea that the 
money was paid before the day appointed. 
Solvit post diem Isolv�t powst day�m/. He paid after 
the day. The plea in an action of debt on bond that the 
defendant paid the money after the day named for the 
payment, and before the commencement of the suit. 
1394 
Solvitur adhuc societas etiam morte socii Isolv�t�r 
redh�k s�say�tres esh(iy)�m mortiy sowshiyay/. A part
nership is moreover dissolved by the death of a partner. 
Solvitur eo ligamine quo ligatur Isolv�t�r iyow 
bgeym�niy kwow l�geyt�r I. In the same manner that a 
thing is bound it is unloosed. 
Somersett's Case. A celebrated decision of the English 
king's bench, in 1771 (20 How.St.Tr. 1), that slavery no 
longer existed in England in any form, and could not for 
the future exist on English soil, and that any person 
brought into England as a slave could not be thence 
removed except by the legal means applicable in the 
case of any free-born person. 
Somnambulism I so(m)nremby�li z�m/. Sleep-walking. 
Whether this condition is anything more than a co-oper
ation of the voluntary muscles with the thoughts which 
occupy the mind during sleep is not settled by physiolo
gists. Such condition may be a defense to a crime 
committed while in such state. Fain v. Com., 78 Ky. 
183. See also Somnolentia. 
Somnolentia Isomn�lensh(i y)�/. A condition of incom
plete sleep resembling in its effects drunkenness and in 
which part of the faculties are abnormally excited while 
the others are in repose. It destroys moral agency and 
is therefore a defense to a crime. Fain v. Com., 78 Ky. 
183. 
Sompnour /somn�r/. In ecclesiastical law, an officer of 
the ecclesiastical courts whose duty was to serve cita
tions or process. 
Son. Male offspring. An immediate male descendant. 
The word may be applied also to a distant male descen
dent (see e.g. Civ.Code La. art. 3556.) In a broad use, 
term may be employed as designating any young male 
person, as a pupil, a ward, an adopted male child or 
dependent. 
Son Isown/. Fr. His. 
Son assault demesne. His own assault. A plea which 
occurs in the actions of trespass and trespass on the 
case, by which the defendant alleges that it was the 
plaintiffs own original assault that occasioned the tres
pass for which he has brought the action, and that what 
the defendant did was merely in his own defense. 
Son-in-law. The husband of one's daughter. Diebold v. 
Diebold, 235 Mo.App. 83, 141 S.W.2d 11 9, 125. 
Son of Sam law. Colloquial name, referring to well
known serial killer, for state statutes providing that any 
share a criminal might otherwise have in proceeds from 
a book or other presentation about his crime must be 
placed into an escrow account for the benefit of any 
victims of the crime. Cf. N.Y. McKinney's Executive 
Law § 632-a. See also Slayer's rule. 
Sonticus Isont�k�s/. Lat. In the civil law, hurtful; 
injurious; hindering; excusing or justifying delay. Mor
bus sonticus is any illness of so serious a nature as to

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1395 
prevent a defendant from appearing in court and to give 
him a valid excuse. 
Soon. Within a reasonable time; as soon as practicable; 
as soon as; as soon as may be. Phrase "soon as practi
cable" means within a reasonable time. Miller v. Zu
rich General Acc. & Liability Ins. Co., 36 N.J.Super. 288, 
11 5 A.2d 597, 600. 
Soror Isoror/. Lat. Sister. 
Sororicide Is:;>ror:;>sayd/. The killing or murder of a 
sister; one who murders his sister. This is not a techni
cal term of the law. 
Sors Isors/. Lat. In old English law, a principal lent on 
interest, as distinguished from the interest itself. 
A thing recovered in action, as distinguished from the 
costs of the action. 
In the civil law, lot; chance; fortune; hazard; a lot, 
made of wood, gold, or other material. Money borrowed, 
or put out at interest. A principal sum or fund, such as 
the capital of a partnership. 
Sortitio Isortish(iy)ow/. Lat. In the civil law, a draw
ing of lots. Sortitio judicum was the process of selecting 
a number of judges, for a criminal trial, by drawing lots. 
Sound, v. To have reference or relation to; to aim at. 
An action is technically said to sound in tort or damages 
where it is brought not for the specific recovery of a 
thing, but for damages only. See Sounding in damages. 
Sound, adj. Whole; in good condition; marketable. See 
Warranty. 
Free from disease; healthy; physically and mentally 
fit. The term may also mean free from danger to the 
life, safety, and welfare. 
Sound and disposing mind and memory. Testamentary 
capacity. Such mind and memory as enables testator to 
know and understand business in which he is engaged at 
time of making will. Farmers' Union Bank of Henning 
v. Johnson, 27 Tenn.App. 342, 181 S.W.2d 369, 374. See 
also Capacity, and Sound mind, below. 
Sound health. In insurance law, means that the appli
cant has no grave impairment or serious disease, and is 
free from any ailment that seriously affects the general 
soundness and healthfulness of the system. A state of 
health unimpaired by any serious malady of which the 
person himself is conscious. National Life & Accident 
Ins. Co. v. Ware, 169 Okl. 618, 37 P.2d 905. 
Sound judicial discretion. Discretion exercised on full 
and fair consideration of the facts presented to the judge 
by the well-known and established mode of procedure. 
Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1089. 
Discretion exercised not arbitrarily or willfully but with 
regard to what is right and equitable under the circum
stances. Cornwell v. Cornwell, 73 App.D.C. 233, 118 
F.2d 396, 398. 
Sound mind. The normal condition of the human mind, 
-that state in which its faculties of perception and 
judgment are ordinarily well developed, and not im
paired by mania, insanity, or other mental disorder. In 
SOVEREIGN 
the law of wills means that testator must have been able 
to understand and carry in mind, in a general way, 
nature and situation of his property, his relations to 
those having claim to his remembrance, and nature of 
his act. The "sound mind" necessary to execute a will 
means ability of testator to mentally understand in a 
general way nature and extent of property to be dis
posed of, and testator's relation to those who would 
naturally claim a substantial benefit from will, as well 
as general understanding of practical effect of will as 
executed. Skelton v. Davis, Fla.App., 133 So.2d 432, 
435. See also Capacity. 
Sound value. As used with reference to value of proper
ty within fire policy is the cash value of property, 
making an allowance for depreciation due to use at and 
immediately preceding the time of the fire. Reliance 
Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597, 598. 
Sounding in damages. When an action is brought, not 
for the recovery of lands, goods, or sums of money (as is 
the case in real or mixed actions or the personal action 
of debt or detinue), but for damages only, as in covenant, 
trespass, etc., the action is said to be "sounding in 
damag es." 
Soundness. General good health; freedom from any 
permanent disease or illness. See Sound. 
Source. That from which any act, movement, informa
tion, or effect proceeds. A person or thing that origi
nates, sets in motion, or is a primary agency in produc
ing any course of action or result. An originator; crea
tor; origin. A place where something is found or 
whence it is taken or derived. Jackling v. State Tax 
Comm., 40 N.M. 241, 58 P.2d 1167, 1171. 
The source of income. Place where, or circumstances 
from which, income at issue is produced. Union Electric 
Co. v. Coale, 347 Mo. 175, 146 S.W.2d 631, 635. 
Sources of the law. The origins from which particular 
positive laws derive their authority and coercive force; 
such are constitutions, treaties, statutes, usages, and 
customs. 
In another sense, the authoritative or reliable works, 
records, documents, edicts, etc., to which we are to look 
for an understanding of what constitutes the law. Such, 
for example, with reference to the Roman law, are the 
compilations of Justinian and the treatise of Gaius; and 
such, with reference to the common law, are especially 
the ancient reports and the works of such writers as 
Bracton, Littleton, Coke, Fleta, Blackstone, and others. 
Sous Isuw/. Fr. Under. 
Sous seing prive Isuw srelJ privey/. Fr. In French law, 
under private signature; under the private signature of 
the parties. A contract or instrument thus signed is 
distinguished from an "authentic act," which is formally 
concluded before a notary or judge. 
Sovereign. A person, body, or state in which indepen
dent and supreme authority is vested; a chief ruler with 
supreme power; a king or other ruler in a monarchy. 
See also Clipped sovereignty; Sovereignty.

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SOVEREIGN IMMUNITY 
Sovereign immunity. A judicial doctrine which pre
cludes bringing suit against the government without its 
consent. Founded on the ancient principle that "the 
King can do no wrong," it bars holding the government 
or its political subdivisions liable for the torts of its 
officers or agents unless such immunity is expressly 
waived by statute or by necessary inference from legisla
tive enactment. Maryland Port Admin. v. I.T.O. Corp. 
of Baltimore , 40 Md.App. 697, 395 A.2d 145, 149. The 
federal government has generally waived its non-tort 
action immunity in the Tucker Act, 28 U.S.C.A. 
§ 1346(a)(2), 1491, and its tort immunity in the Federal 
Tort Claims Act, 28 U.S.C.A. § 1346(b), 2674. Most 
states have also waived immunity in various degrees at 
both the state and local government levels. 
The immunity from certain suits in federal court 
granted to states by the Eleventh Amendment to the 
United States Constitution. 
See also Foreign immunity; Federal Tort Claims Act; 
Suits in Admiralty Act; Tucker Act. 
Foreign Sovereign Immunity Act. Subject to existing 
international agreements to which the U.S. is a party, 
and to certain statutorily prescribed exceptions, a for
eign nation is immune from the jurisdiction of federal 
and state courts. 28 U.S.C.A. § 1601-1611. 
Sovereign people. The political body, consisting of the 
entire number of citizens and qualified electors, who, in 
their collective capacity, possess the powers of sovereign
ty and exercise them through their chosen representa
tives. See Scott v. Sandford, 19 How. 404, 15 L.Ed. 691. 
Sovereign power or sovereign prerogative. That pow
er in a state to which none other is superior or equal, 
and which includes all the specific powers necessary to 
accomplish the legitimate ends and purposes of govern
ment. )Etna Casualty & Surety Co. v. Bramwell, D.C. 
Or., 12 F.2d 307, 309. 
Sovereign right. A right which the state alone, or some 
of its governmental agencies, can possess, and which it 
possesses in the character of a sovereign, for the com
mon benefit, and to enable it to carry out its proper 
functions; distinguished from such "proprietary" rights 
as a state, like any private person, may have in property 
or demands which it owns. 
Sovereign states. States whose subjects or citizens are 
in the habit of obedience to them, and which are not 
themselves subject to any other (or paramount) state in 
any respect. The state is said to be semi-sovereign only, 
and not sovereign, when in any respect or respects it is 
liable to be controlled by a paramount government. In 
the intercourse of nations, certain states have a position 
of entire independence of others, and can perform all 
those acts which it is possible for any state to perform in 
this particular sphere. These same states have also 
entire power of self-government; that is, of indepen
dence upon all other states as far as their own territory 
and citizens not living abroad are concerned. No for
eign power or law can have control except by conven
tion. This power of independent action in external and 
internal relations constitutes complete sovereignty. 
1396 
Sovereignty. The supreme, absolute, and uncontrolla
ble power by which any independent state is governed; 
supreme political authority; the supreme will; para
mount control of the constitution and frame of govern
ment and its administration; the self-sufficient source of 
political power, from which all specific political powers 
are derived; the international independence of a state, 
combined with the right and power of regulating its 
internal affairs without foreign dictation; also a politi
cal society, or state, which is sovereign and independent. 
The power to do everything in a state without ac
countability,-to make laws, to execute and to apply 
them, to impose and collect taxes and levy contributions, 
to make war or peace, to form treaties of alliance or of 
commerce with foreign nations, and the like. 
Sovereignty in government is that public authority 
which directs or orders what is to be done by each 
member associated in relation to the end of the associa
tion. It is the supreme power by which any citizen is 
governed and is the person or body of persons in the 
state to whom there is politically no superior. The 
necessary existence of the state and that right and 
power which necessarily follow is "sovereignty." By 
"sovereignty" in its largest sense is meant supreme, 
absolute, uncontrollable power, the absolute right to 
govern. The word which by itself comes nearest to 
being the definition of ttsovereignty" is will or volition as 
applied to political affairs. City of Bisbee v. Cochise 
County, 52 Ariz. 1, 78 P.2d 982, 986. 
Sowne. In old English law, to be leviable. An old 
exchequer term applied to sheriff's returns. 
S.P. Abbreviation of "sine prole," without issue. Also 
an abbreviation of "same principle," or ttsame point," 
indicating, when inserted between two citations, that 
the second involves the same doctrine as the first. 
Spadones Ispadowniyz/. Lat. In the civil law, impotent 
persons. Those who, on account of their temperament 
or some accident they have suffered, are unable to 
procreate. 
Sparsim Isparsam /. Lat. Here and there; scattered; at 
intervals. For instance, trespass to realty by cutting 
timber sparsim (here and there) through a tract. 
Spatre placitum Ispeytiy plresatam /. In old English law, 
a court for the speedy execution of justice upon military 
delinquents. 
Speaker. The official designation of the president or 
chairman of certain legislative bodies, particularly of 
the House of Representatives in the Congress of the 
United States, and of one or both branches of several of 
the state legislatures, i.e. Speaker of the House. 
Speaking demurrer. A demurrer which introduces a 
new fact that does not appear from face of bill or 
complaint is a "speaking demurrer ," and cannot be 
sustained. Allpress v. Lawyers Title Ins. Corp., 218 
Tenn. 673, 405 S.W.2d 572, 573. A speaking demurrer is 
a special exception which, instead of limiting itself to 
the allegations of the petition and pointing out defects 
therein, states factual propositions not appearing in the

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1397 
petition and, in reliance upon such facts, seeks to chal
lenge the plaintiffs right to recovery. Ragsdale v. Rags
dale, Tex.Civ.App., 520 S.W.2d 839, 842. See also De
murrer. 
Speaking motion. A motion which requires considera
tion of matters outside the pleadings. Formerly, such 
motions were prohibited but under Fed.R.Civ.P. 12(b) 
such motions are now entertained. 
Special. Relating to or designating a species, kind, indi
vidual, thing, or sort; designed for a particular purpose; 
confined to a particular purpose, object, person, or class. 
Unusual, extraordinary. 
As to special Acceptance; Administration; Agent; Allo
catur; Allowance; Appearance; Assessment; Assumpsit; 
Bail; Bailiff; Benefit; Calendar; Charge; Constable; Con
tract; Count; Covenant; Customs; Damage; Demurrer; 
Deposit; Deputy; Election; Finding; Guaranty; Guardian; 
Imparlance; Indorsement; Injunction; Insurance; Issue; 
Jury; Legacy; Letter of credit; License; Limitation; Mal
ice; Master; Meeting; Mortgage; Motion; Non est factum; 
Occupant; Owner; Partner; Partnership; Plea; Pleader; 
Pleadings; Power; Power of appointment; Privilege; Pro
ceeding; Property; Replication; Request; Restraint of 
trade; Retainer; Rule; Service; Session; Statu te; Stock; 
Tail; Term; Traverse; Trust; Verdict, and Warranty, see 
those titles. 
Special act. A private statute; an act which operates 
only upon particular persons or private concerns. Unity 
v. Burrage, 103 U.S. 447, 454, 26 L.Ed. 405. See Special 
law. 
Special attorney or counsel. An attorney employed by 
the Attorney General of the United States or of a state 
to assist in a particular case where the public interest so 
requires. 28 U.S.C.A. § 543. See also Independent 
counsel. 
Special district. A limited governmental structure cre
ated to bypass normal borrowing limitations, to insulate 
certain activities from traditional political influence, to 
allocate functions to entities reflecting particular exper
tise, to provide services in otherwise unincorporated 
areas, or to accomplish a primarily local benefit or 
improvement, e.g. parks and planning, mosquito control, 
sewage removal. 
Special errors. In common law pleading, special pleas 
in error are such as, instead of joining in error, alleging 
some extraneous matter as a ground of defeating the 
writ of error, e.g., a release of errors, expiration of the 
time within which error might be brought, or the like. 
To these, the plaintiff in error may either reply or 
demur. 
Special exception. An objection to the form in which a 
cause of action is stated. See Demurrer. 
Special exception to municipal zoning ordinance refers 
to special uses which are permissive in particular zone 
under ordinance and are neither nonconforming uses 
nor akin to a variance and refers to special use which is 
considered by local legislative body to be essential or 
desirable for welfare of community and its citizenry and 
SPECIAL LAW 
which is entirely appropriate and not essentially incom
patible with basic uses in zone involved, but not at every 
or any location therein or without restriction or condi
tions being imposed on such use. Piscitelli v. Township 
Committee of Scotch Plains Tp., 103 N.J.Super. 589, 248 
A.2d 274, 277. A special exception allows property 
owner to put his property to use which regulations 
expressly permit under conditions specified in zoning 
regulations themselves. W A T R, Inc. v. Zoning Bd. of 
Appeals of Town of Bethany, 158 Conn. 196, 257 A.2d 
818, 821. 
Such use is also known as a conditional use, special 
permit, or special use. See Special use permit. Compare 
Variance. 
Special execution. A copy of a judgment with a di
rection to the sheriff indorsed thereon to execute it. 
One that directs a levy upon some special property. See 
Execution. 
Special executor. One whose power and office are 
limited, either in respect to the time or place of their 
exercise, or restricted to a particular portion of the 
decedent's estate. One only empowered by will to take 
charge of a limited portion of the estate, or such part as 
may lie in one place, or to carry on the administration 
only to a prescribed point. See Executor. 
Special facts rule. In corporation law, as respects di
rector's duty of disclosure when dealing with stockhold
ers, is that where special circumstances or facts are 
present which make it inequitable for the director to 
withhold information from the stockholder, the duty to 
disclose arises, and concealment is fraud. Taylor v. 
Wright, 69 Cal.App.2d 371, 159 P.2d 980, 985. 
Special grand jury. A grand jury convened to hear a 
particular case or series of cases involving similar 
crimes. 18 U.S.C.A. § 3331 et seq. 
Special interest groups. Groups in society that have a 
special interest in common. Special interest groups 
generally attempt to influence government legislation to 
benefit their own particular group interests. See Lobby
ing. 
Special interrogatories. Written questions on one or 
more issues of fact submitted to a jury. The answers to 
these are necessary to a verdict. Fed.R.Civ.P. 49(b). 
Specialist. Stock broker who remains at one post of 
exchange where particular stocks are dealt in and exe
cutes orders of other brokers, for which he receives 
commission; one who specializes in limited group of 
stocks. 
Special jurisdiction. A court authorized to take cogni
zance of only some few kinds of causes or proceedings 
expressly designated by statute is called a court of 
special or limited jurisdiction. Power of a court over 
only a limited type of case (e.g. Probate court) or over 
only property and not the person or the defendant. 
Special law. One relating to particular persons or 
things; one made for individual cases or for particular 
places or districts; one operating upon a selected class,

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SPECIAL LAW 
rather than upon the public generally. A private law. 
A law is "special" when it is different from others of the 
same general kind or designed for a particular purpose, 
or limited in range or confined to a prescribed field of 
action or operation. A "special law" relates to either 
particular persons, places, or things or to persons, 
places, or things which, though not particularized, are 
separated by any method of selection from the whole 
class to which the law might, but not such legislation, be 
applied. Utah Farm Bureau Ins. Co. v. Utah Ins. Guar
anty Ass'n, Utah, 564 P.2d 751, 754. A special law 
applies only to an individual or a number of individuals 
out of a single class similarly situated and affected, or to 
a special locality. Board of County Com'rs of Lemhi 
County v. Swensen, Idaho, 80 Idaho 198, 327 P.2d 361, 
362. See also Private bill; Private law. Compare General 
law; Public law. 
Special lien. A special lien is in the nature of a particu
lar lien, being a lien upon particular property. A lien 
which the holder can enforce only as security for the 
performance of a particular act or obligation and of 
obligations incidental thereto. See also Lien. 
Special matter. In common law pleading, under a plea 
of the general issue, the defendant is allowed to give 
special matter in evidence, usually after notice to the 
plaintiff of the nature of such matter, thus sparing him 
the necessity of pleading it specially. 3 BI.Comm. 306. 
Special permit. See Special use permit. 
Special registration. In election laws, registration for 
particular election only which does not entitle elector to 
vote at any succeeding election. 
Special session. An extraordinary session. See Ses
sion. 
Specialty. A contract under seal. Furst v. Brady, 375 
Ill. 425, 31 N.E.2d 606, 609. A writing sealed and 
delivered, containing some agreement. A special con
tract. A writing sealed and delivered, which is given as 
a security for the payment of a debt, in which such debt 
is particularly specified. See Contract (Special contract). 
For assessment purposes, a "specialty" is a building or 
buildings, constructed or peculiarly adapted to conduct 
of owner's business, which cannot be converted to gener
al industrial use without the loss or expenditure of very 
substantial amounts of money. Great Atlantic & Pac. 
Tea Co., Inc. v. Kiernan, 49 A.D.2d 99, 371 N.Y.S.2d 173, 
175. 
Specialty debt. A debt due or acknowledged to be due 
by deed or instrument under seal. 2 BI.Comm. 465. 
Special use permit. Permitted exception to zoning ordi
nance; e.g. church, hospital, etc. A special use permit 
allows property owner to use his property in a way 
which the zoning regulations expressly permit under the 
conditions specified in the regulations themselves. 
Shell Oil Co. v. Zoning Bd. of Appeals of Town of 
Bloomfield, 156 Conn. 66, 238 A.2d 426, 428. "Special 
permit" and ccspecial exception" have the same meaning 
and can be used interchangeably. Beckish v. Planning 
and Zoning Comm. of Town of Columbia, 162 Conn. 11, 
1398 
291 A.2d 208, 210. See also Special exception; Compare 
Variance. 
Special use valuation. An option which permits the 
executor of an estate to value, for death tax purposes, 
real estate used in a farming activity or in connection 
with a closely-held business at its current use value 
rather than at its most suitable or highest and best use 
value. Under this option, a farm would be valued at its 
value for farming purposes even though, for example, 
the property might have a higher value as a potential 
shopping center. In order for the executor of an estate 
to elect special use valuation, the conditions of I.R.C. 
§ 2032A must be satisfied. 
Special warranty. A covenant of "special warranty" is 
one the operation of which is limited to certain persons 
or claims. Central Life Assur. Soc. v. Impelmans, 13 
Wash.2d 632, 126 P.2d 757, 763. A "covenant to war
rant" in the habendum clause is not a general but at 
most a ttspecial warranty". New Or
leans & N. E. R. R. v. Morrison, 203 Miss. 791, 35 So.2d 
68, 70. See also Warranty. 
Special warranty deed. A deed in which the grantor 
only covenants to warrant and defend the title against 
claims and demands of the grantor and all persons 
claiming by, through and under him. In some jurisdic
tions, such deed is called a quitclaim deed (q. v. ). 
Specie /spiyshiy(iy)/. Coin of the precious metals, of a 
certain weight and fineness, and bearing the stamp of 
the government, denoting its value as currency. Metal
lic money; e.g. gold or silver coins. 
When spoken of a contract, the expression ccperform
ance in specie" means strictly, or according to the exact 
terms. As applied to things, it signifies individuality or 
identity. Thus, on a bequest of a specific picture, the 
legatee would be said to be entitled to the delivery of the 
picture in specie,' i.e., of the very thing. Whether a 
thing is due in genere or in specie depends, in each case, 
on the will of the transacting parties. 
Species /spiyshiy(iy)z/. Lat. In the civil law, form; 
figure; fashion or shape. A form or shape given to 
materials. 
Specific. Precisely formulated or restricted; definite; 
explicit; of an exact or particular nature. People v. 
Thomas, 25 Cal.2d 880, 156 P.2d 7, 17. Having a certain 
form or designation; observing a certain form; particu
lar; precise; tending to specify, or to make particular, 
definite, limited or precise. 
As to specific Denial; Devise; Legacy, and Perform
ance, see those titles. 
Specifically. In a specific manner; explicitly, particu
larly, definitely. 
Specificatio /spes;f;keysh(iy)ow/. Lat. In the civil law, 
literally, a making of form; a giving of form to materi
als. That mode of acquiring property through which a 
person, by transforming a thing belonging to another, 
especially by working up his materials into a new spe
cies, becomes proprietor of the· same.

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1399 
Specification. As used in the law relating to patents, 
manufacturing, and construction contracts, a particular 
or detailed statement, account, or listing of the various 
elements, materials, dimensions, etc. involved. 
Law of personal property. The acquisition of title to a 
thing by working it into new forms or species from the 
raw material; corresponding to the specificatio of the 
Roman law. Right by "specification" can only be ac
quired when, without the accession of any other materi
al that of another person, which has been used by the 
operator innocently, has been converted by him into 
something specifically different in the inherent and 
characteristic qualities, which identify it. Such is the 
conversion of corn into meal, of grapes into wine, etc. 
Bozeman Mortuary Ass'n v. Fairchild, 253 Ky. 74, 68 
S.W.2d 756. 
Military law. The clear and particular description of 
the charges preferred against a person accused of a 
military offense. Carter v. McClaughry, 183 U.S. 365, 
22 S.Ct. 181, 46 L.Ed. 236. 
Practice. A detailed and particular enumeration of sev
eral points or matters urged or relied on by a party to a 
suit or proceeding; as, a "specification of errors," or a 
"specification of grounds of opposition to a bankrupt's 
discharge." 
Specific bequest (or devise). A testamentary gift of 
specific personal property (e.g. "my oId rocking chair") 
or of a specific amount of cash. A specific bequest (or 
devise) is a gift by will of a specific article or part of 
testator's estate, which is identified and distinguished 
from all things of same kind and which may be satisfied 
by delivery of particular things. In re Soles' Estate, 451 
Pa. 568, 304 A.2d 97, 100. See also Devise; Legacy 
(Specific legacy). 
Specific devise. See Devise; Specific bequest. 
Specific intent. The mental purpose to accomplish a 
specific act prohibited by law. The most common usage 
of "specific intent" is to designate a special mental 
element which is required above and beyond any mental 
state required with respect to the actus reus of the 
crime. Common law larceny, for example, requires the 
taking and carrying away of the property of another, 
and the defendant's mental state as to this act must be 
established, but in addition it must be shown that there 
was an "intent to steal" the property. Similarly, com
mon law burglary requires a breaking and entry into 
the dwelling of another, but in addition to the mental 
state connected with these acts it must also be estab
lished that the defendant acted "with intent to commit a 
felony therein." The subjective desire or knowledge 
that the prohibited result will occur. People v. Owens, 
131 Mich.App. 76, 345 N.W.2d 904, 907. See also Crimi
nal· (Criminal intent); Mens rea. 
Specific intent crime. Crime in which defendant must 
not only intend the act charged, but also intend to 
violate law. U.S. v. Birkenstock, C.A.Wis., 823 F.2d 
1026, 1028. One in which a particular intent is a 
necessary element of the crime itself. Russell v. State, 
SPEED 
Fla.App., 373 So.2d 97, 98. See also Mens rea; Specific 
intent. 
Specific legatee. The recipient of designated property 
under a will and transferred by the death of the owner. 
Specific performance. See Performance. 
Specify. To mention specifically; to state in full and 
explicit terms; to point out; to tell or state precisely or 
in detail; to particularize, or to distinguish by words one 
thing from another. Aleksich v. Industrial Accident 
Fund, 11 6 Mont. 127, 151 P.2d 1016, 1021. 
Specimen. A sample; a part of something intended to 
exhibit the kind and quality of the whole. 
Spectrograph. Voice print analysis is a method of iden
tification based on the comparison of graphic represen
tations or "spectrograms" made of human voices. Such 
method utilizes a machine known as a "spectrograph" 
which separates the sound of human voices into the 
three component elements of time, frequency and inten
sity. Using a series of lines or bars, the machine plots 
the variables across electronically sensitive paper and 
the result is a "spectrogram" of the acoustical signal of 
the speaker, with the horizontal axis representing the 
time lapse, the vertical axis indicating frequency, and 
the thickness of the lines disclosing the intensity of the 
voice. People v. Kelly, 17 Ca1.3d 24, 130 Cal.Rptr. 144, 
147, 549 P.2d 1240. An increasing number of courts are 
permitting the admissibility of spectrograph results into 
evidence to identify voices. United States v. Baller, 
C.A.W.Va., 519 F.2d 463. See also Voice exemplars; 
VOiceprint. 
Speculation. Buying or selling with expectation of prof
iting by a rise or fall in price. Also, engaging in 
hazardous business transactions, or investing in risky 
securities or commodities, with the hope of an unusually 
large profit. 
Speculation, upon which neither court in nonjury case 
nor jurors in jury case may base verdict, is the art of 
theorizing about a matter as to which evidence is not 
sufficient for certain knowledge. Jaramillo v. U. S., 
D.C.N.Y., 357 F.Supp. 172, 175. 
Speculative damages. See Damages. 
Speculum / speky;)l;)m/. Lat. Mirror or lookingglass. 
The title of several of the most ancient lawbooks or 
compilations. One of the ancient Icelandic books is 
styled "Speculum Regale. " 
Speech. Freedom of speech is right guaranteed by First 
Amendment, U.S.C onst. See also Commercial speech 
doctrine; Freedom of speech; Uberty; Symbolic speech. 
Speech or debate clause. Art. 1, § 6, cl. 1 of U.S. 
Constitution grants congressmen immunity "for any 
speech or debate in either House." The courts have 
extended this privilege to matters beyond pure speech 
and debate in either House, but only when necessary to 
prevent indirect impairment of such deliberations. 
Gravel v. U. S., 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 
583. See also Legislative immunity. 
Speed. See Amphetamine; Methampheta mine.

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SPEEDY EXECUTION 
Speedy execution. An execution which, by the di
rection of the judge at nisi prius, issues forthwith, or on 
some early day fixed upon by the judge for that purpose 
after the trial of the action. 
Speedy remedy. One which, having in mind the sub
ject-matter involved, can be pursued with expedition and 
without essential detriment to the party aggrieved; e.g. 
Restraining order. 
Speedy trial. The right of the accused to a speedy trial 
is guaranteed by the Sixth Amendment of the Constitu
tion and such right is implemented by 18 U.S.C.A. 
§ 3161 et seq. and Fed.R.Crim.P. 50. Barker v. Wingo, 
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, lists four 
factors to be considered in determining whether delay 
was unreasonable: (1) Length of delay; (2) the govern
ment's justification for the delay; (3) whether and how 
the defendant asserted his right to a speedy trial; and 
(4) prejudice caused by the delay, such as lengthened 
pretrial incarceration. A trial had as soon after indict
ment as prosecution, with reasonable diligence, can pre
pare for it; a trial according to fixed rules, free from 
capricious and oppressive delays, but the time within 
which it must be had to satisfy the guaranty depends on 
the circumstances. Bryant v. State, 4 Md.App. 572, 244 
A.2d 446, 448. What constitutes a Uspeedy trial" de
pends on circumstances of each case. Ferguson v. Peo
ple, 160 Colo. 389, 417 P.2d 768, 769. See Prejudice 
(Speedy trial}, Speedy Trial Act. 
Speedy Trial Act. Federal Act of 1974 establishing a 
set of time limits for carrying out the major events (e.g. 
information, indictment, arraignment) in the prosecu
tion of federal criminal cases. 18 U.S.C.A. § 3161 et seq. 
In any case involving a defendant charged with an 
offense, the appropriate judicial officer, at the earliest 
practicable time, shall, after consultation with the coun
sel for the defendant and the attorney for the Govern
ment, set the case for trial on a day certain, or list it for 
trial on a weekly or other short-term trial calendar at a 
place within the judicial district, so as to assure a speedy 
trial. 18 U.S.C.A. § 3161( a). See also Fed.R.Crim.P. 50. 
Spend. To consume by using in any manner; to use up, 
to exhaust, distribute, as to expend money or any other 
possession. 
Spendthrift. One who spends money profusely and im
providently; a prodigal; one who lavishes or wastes his 
estate. By statute, a person who by excessive drinking, 
gaming, idleness, or debauchery of any kind shall so 
spend, waste, or lessen his estate as to expose himself or 
his family to want or suffering, or expose the govern
ment to charge or expense for the support of himself or 
family, or is liable to be put under guardianship on 
account of such excesses. See Spendthrift trust. 
Spendthrift trust. A trust created to provide a fund for 
the maintenance of a beneficiary and at the same time 
to secure the fund against his improvidence or incapaci
ty; provisions against alienation of the trust fund by the 
voluntary act of the beneficiary or by his creditors are 
its usual incidents. Estate of Sowers, 1 Kan.App.2d 675, 
574 P.2d 224, 228. One which provides a fund for 
1400 
benefit of another than settlor, secures it against benefi
ciary's own improvidence, and places it beyond his credi
tors' reach. A trust set up to protect a beneficiary from 
spending all of the money that he is entitled to. Only a 
certain portion of the total amount is given to him at 
any one time. Most states permit spendthrift trust 
provisions that prohibit creditors from attaching a 
spendthrift trust. 
Sperate. That of which there is hope. Thus a debt 
which one may hope to recover may be called Usperate," 
in opposition to udesperate." 
Spes accrescendi I spiyz li!kr;)senday I. Lat. Hope of 
surviving. 
Spes est vigilantis somnium I spiyz est vij;)lrent;)s 
somn(i)y ;)m/. Hope is the dream of the vigilant. 
Spes impunitatis continuum affectum tribuit delin
quendi Ispiyz impyuwn;)teyt;)s k;)ntinyuw;)m ;)fekt;)m 
tribyuw;)t deli1Jkwenday/. The hope of impunity holds 
out a continual temptation to crime. 
Spes recuperandi Ispiyz r;)k(y)uwp;)rrenday/. Lat. The 
hope of recovery or recapture; the chance of retaking 
property captured at sea, which prevents the captors 
from acquiring complete ownership of the property until 
they have definitely precluded it by effectual measures. 
Spigurnel I spig;)rnell. The sealer of the royal writs. 
Spin-off. A form of corporate divestiture that results in 
a subsidiary or division of a corporation becoming an 
independent company. Spin-off occurs where part of 
assets of corporation is transferred to a new corporation 
and stock of transferee is distributed to shareholders of 
transferor without surrender by them of stock in trans
feror. C. I. R. v. Baan, C.A.Cal., 382 F.2d 485, 491. A 
type of reorganization wherein, for example, A Corpora
tion transfers some assets to B Corporation in exchange 
for enough B stock to represent control. A Corporation 
then distributes the B stock to its shareholders. See 
also Split-off; Split-up. 
Spinster. A woman who never has been married. 
Spiritual. Relating to religious or ecclesiastical persons 
or affairs, as distinguished from usecular" or lay, world
ly, or business matters. 
As to spiritual Corporat ion; Court, and Lord, see those 
titles. 
Spital, or spittle Ispit;)lI. A charitable foundation; a 
hospital for diseased people; a hospital. 
Spite fence. A fence of no beneficial use to person 
erecting and maintaining it on his land and maintained 
solely for purpose of annoying owner of adjoining land. 
Burris v. Creech, 220 N.C. 302, 17 S.E.2d 123. A high 
and unsightly fence erected to annoy a neighbor or 
adjoining landowner by obstructing his air, light or 
view. 
Split gift. See Gift. 
Split income. Congress, in 1948, enacted new joint tax 
return legislation and a new set of rates to remove the 
considerable disparity between tax treatment of married

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1401 
couples in community property and common-law states, 
and thereby to remove the considerable pressure on the 
common-law states to adopt community-property sys
tems. By law enacted that year, married couples in all 
states were given the privilege to split their income, that 
is to have it taxed on a joint return at a rate equal to 
that which would apply if each had earned one-half the 
amount and were taxed on a separate return. In 1969, 
however, Congress retained but reduced the disparity 
between rates imposed on single persons and married 
couples with the same incomes. This reduction took the 
form of a new and lower rate schedule for single per
sons, which took effect beginning in 1971. See I.R.C. 
§ l(c). See also Gift splitting election. 
Split-off. When a corporation sets up and funds a new 
corporation and gives the shares of this new corporation 
to the old corporation's stockholders in exchange for 
some of their shares in the old company, this new 
company is a tcsplit-off' and the process is a split-off. A 
type of reorganization whereby, for example, A Corpora
tion transfers assets to B Corporation in exchange for 
enough B stock to represent control. A Corporation 
then distributes the B stock to its shareholders in ex
change for some of their A stock. See also Spin-off; 
Split-up. 
Split order. An order to a broker directing him to buy 
or sell some stock at one price and some at another. 
Split sentence. One where penalty of fine and imprison
ment, as provided by statute, is imposed and imprison
ment part is suspended and fine part enforced. It is also 
exemplified in a sentence by which the defendant serves 
some time and the balance of the sentence is suspended. 
Splitting cause of action. Dividing a single or indivis
ible cause of action into several parts or claims and 
bringing several actions thereon. Van Brode Mill. Co. v. 
Kellogg Co., D.C.Del., 113 F.Supp. 845, 852. Commence
ment of action for only part of the cause of action. 
Wood v. Baker, 217 Or. 279, 341 P.2d 134, 136. Rule 
against tcsplitting cause of action" applies only when 
several actions are brought as result of dividing single or 
indivisible cause of action. Beizer v. Dictograph Prod
ucts, Inc., 6 Conn.Cir. 28, 263 A.2d 93, 97. 
There is no CCsplitting of causes" where demand which 
is subject of second action was not due at time of the 
first action. Glavich v. Industrial Accident Commission 
of California, 44 Cal.App.2d 517, 112 P.2d 774, 778. The 
rule against tcsplitting causes of action" does not mean 
that plaintiff cannot sue for less than is his due but 
means merely that if he does so he may be precluded 
from maintaining another action for the remainder of 
the same demand. Scientific & Hospital Supply Corpo
ration v. Board of Education of City of New York, 172 
Misc. 770, 16 N.Y.S.2d 91, 93. 
See also Joinder; Misjoinder; Multiplicity of actions or 
suits. 
Split-up. When a corporation divides into two or more 
separate new corporations, gives its shareholders the 
shares of these new corporations, and goes out of busi
ness, this process is termed a tcsplit-up." A type of 
reorganization whereby, for example, A Corporation 
SPONSIO 
transfers some assets to B Corporation and the remain
der to Z Corporation in return for which it receives 
enough B and Z stock to represent control of each 
corporation. The B and Z stock is then distributed by A 
Corporation to its shareholders in return for all of their 
A stock. The result of the split-up is that A Corporation 
is liquidated and its shareholders now have control of B 
and Z Corporations. 
Spoliation /spowliyeysh:m/. The intentional destruc
tion of evidence and when it is established, fact finder 
may draw inference that evidence destroyed was unfa
vorable to party responsible for its spoliation. State v. 
Langlet, Iowa, 283 N.W.2d 330, 333. Such act consti
tutes an obstruction of justice. The destruction, or the 
significant and meaningful alteration of a document or 
instrument. Application of Bodkin, D.C.N.Y., 165 
F.Supp. 25, 30. 
Any change made on a written instrument by a per
son not a party to the instrument. Such a change will 
have no effect, provided that the original tenor of the 
instrument can still be ascertained. 
Spoliator /spowliyeyt�r/. Lat. A spoiler or destroyer. 
It is a maxim of law, bearing chiefly on evidence, but 
also upon the value generally of the thing destroyed, 
that everything most to his disadvantage is to be pre
sumed against the destroyer (spoliator), contra spoliato
rem omnia prcesumunt ur. 
Spoliatus debet ante omnia restitui /spowliyeyt�s 
deb�t rentiy omn(i)y� r�stityuway /. A party despoiled 
[forcibly deprived of possession] ought first of all to be 
restored. 
Spoliatus episcopus ante omnia debet restitui 
/spowliyeyt�s �pisk�p�s rentiy omn(i)y� deb�t r�stityu
way /. A bishop despoiled of his see ought, above all, to 
be restored. 
Spolium /spowl(i)y�m /. Lat. In the civil and common 
law, a thing violently or unlawfully taken from another. 
Spondeo /spondiyow/. Lat. In the civil law, I under
take; I engage. 
Spondes? spondeo /spondiyz? spondiyow/. Lat. Do 
you undertake? I do undertake. The most common 
form of verbal stipulation in the Roman law. 
Spondet peritiam artis /spond�t p�rish(iy)�m art�s/. 
He promises the skill of his art; he engages to do the 
work in a skillful or workmanlike manner. Applied to 
the engagements of workman for hire. 
Sponsalia per verba de futuro /sponseyl(i)y� par v�rb� 
diy fyuwtyurow/. An engagement or betrothal through 
words concerning the future. 
Sponsalia, or stipulatio sponsalitia /sponseyl(i)y�/stip
y�leysh(iy)ow spons�lish(iy)�/. Lat. In the civil law, 
espousal; betrothal; a reciprocal promise of future mar
riage. 
Sponsio /sponsh(iy)ow/. Lat. In the civil law, an en
gagement or undertaking; particularly such as was 
made in the form of an answer to a formal interrogatory 
by the other party.

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SPONSIO 
An engagement to pay a certain sum of money to the 
successful party in a cause. 
Sponsio judicialis /sponsh(iy)ow juwdishiyeyl:ls/. In 
Roman law, a judicial wager corresponding in some 
respects to the "feigned issue" of modern practice. 
Sponsio ludicra /sponsh(iy)ow l(y)uwd:lkr:l/. A trifling 
or ludicrous engagement, such as a court will not sus
tain an action for. An informal undertaking, or one 
made without the usual formula of interrogation. 
Sponsions /sponsh:ln(d)z/. In international law, agree
ments or engagements made by certain public officers 
(as generals or admirals in time of war) in behalf of 
their governments, either without authority or in excess 
of the authority under which they purport to be made, 
and which therefore require an express or tacit rat-
. ification. 
Sponsor. A surety; one who makes a promise or gives 
security for another, particularly a godfather in bap
tism. 
In the civil law, one who intervenes for another volun
tarily and without being requested. 
Spontaneous combustion. The ignition of a body by 
the internal development of heat without the action of 
an external agent. 
Spontaneous declarations. A statement is admissible 
as a "spontaneous declaration" if there was an occur
rence sufficiently startling to produce a spontaneous and 
unreflecting statement, if there was an absence of time 
to fabricate, and if the statement related to the circum
stances of the occurrence. People v. Was, 22 Ill.App.3d 
859, 318 N.E.2d 309, 313. See Spontaneous exclamation. 
Spontaneous exclamation. Within res gestae rule, a 
statement or exclamation made immediately after some 
exciting occasion by a participant or spectator and as
serting the circumstances of that occasion as it is ob
served by him, is admissible as a spontaneous and sin-
o cere response to actual perceptions produced by shock. 
State v. Kendrick, 239 Or. 512, 398 P.2d 471, 473. One 
exception to the Hearsay Rule is the exclamation made 
by one under the stress of excitement or at the very 
moment of an event before the mind has an opportunity 
to contrive a false statement; cf. Fed.Evid. Rule 803(2). 
Sometimes called the res gestre exception to Hearsay 
Rule. See Res (Res gestre). 
Sponte oblata /spontiy :lbleyt:l/. Lat. A free gift or 
present to the crown. 
Sponte virum mulier fugiens et adultera facta, dote 
sua careat, nisi sponsi sponte retracta /spontiy 
vihr:lm myuwl(i)Y:lr fyuwj(i)yimz et :ld;}lt:lr:l frekt:l dowtiy 
s(y)UW:l kreriY:lt, naysay sponsay r:ltrrekt:l/. Let a wom
an leaving her husband of her own accord, and commit
ting adultery, lose her dower, unless taken back by her 
husband of his own accord. 
Sporting house. A house of ill-fame. A house frequent
ed by sportsmen, gamblers, and the like, but not neces
sarily a house kept for unlawful sports or practices. 
1402 
Sportula /sp6rty:lI:l/. Lat. In Roman law, a largess, 
dole, or present; a pecuniary donation; an official per
quisite; something over and above the ordinary fee 
allowed by law. 
Spot. In commodity trading and in foreign exchange, 
immediate delivery in contrast to a future delivery. 
Spot exchange rate. Exchange rate at which one cur
rency can be converted into another currency for imme
diate delivery. 
Spot market. See Spot trading. 
Spot price. The selling price of commodities or goods in 
spot market. See Spot trading. 
Spot trading. In commodities market, cash sales for 
immediate delivery in contrast to trading in futures. 
Spot zoning. Granting of a zoning classification to a 
piece of land that differs from that of the other land in 
the immediate area. Term refers to zoning which sin
gles out an area for treatment different from that of 
similar surrounding land. and which cannot be justified 
on the bases of health, safety, morals or general welfare 
of the community and which is not in accordance with a 
comprehensive plan. Save Our Rural Environment v. 
Snohomish County, 99 Wash.2d 363, 662 P.2d 816, 819. 
Spousal disqualification. See Marital commu nications 
privilege. 
Spousals /spawz:llz/. In old English law, mutual prom
ises to marry. 
Spouse. One's husband or wife, and "surviving spouse" 
is one of a married pair who outlive the other. 
Spouse-breach. In old English law, adultery. 
Spread. In general, a difference between two amounts. 
In stock and commodity trading, the difference between 
the bid and asked price. In arbitrage (q. v.), the differ
ence between two markets in the price or value of a 
currency. In futures trading, is the difference between 
delivery months in the same or different markets. In 
fixed-income securities, is the difference between yields 
on securities of the same quality but different maturities 
or the difference between yields on securities of the 
same maturity but different quality. In banking, is 
difference between bank's cost of obtaining funds and 
rate it charges on loaning out funds. 
Spread sheet. A multicolumned worksheet used by 
accountants and auditors to summarize and analyze 
transactions. 
Spring-branch. A branch of a stream, flowing from a 
spring. 
Springing use. See Use. 
Sprinkling trust. See Trust. 
Spurious. False, counterfeit, not genuine. 
Spurious bank-bill. A bill which may be a legitimate 
impression from the genuine plate, but it must have the 
signatures of persons not the officers of the bank whence 
it purports to have issued, or else the names of fictitious

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persons. It may also be an illegitimate impression from 
a genuine plate, or an impression from a counterfeit 
plate, but it must have such signatures or names as 
indicated. A bill, therefore, may be both counterfeit 
and forged, or both counterfeit and spurious, but it 
cannot be both forged and spurious. 
Spurious class action. One of the former categories of 
class action in which interests of members of class were 
several and not interdependent, and where joinder was a 
matter of efficiency to avoid multiplicity of suits. Slack 
v. Stiner, C.A.Tex., 358 F.2d 65, 69. This category of 
class action no longer exists under Federal Rule of Civil 
Procedure 23 as revised. See also Class or representative 
action. 
Spurius /sp(y)ur(i)Y::ls/sp�ro /. Lat. In the civil law, a 
bastard; the offspring of promiscuous cohabitation. 
Spy. A person sent into an enemy's camp to inspect 
their works, ascertain their strength and their inten
tions, watch their movements, and secretly communi
cate intelligence to the proper officer. By the laws of 
war among all civilized nations, a spy is punished with 
death. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 44, 18 
L.Ed. 281 (argument of counsel). 
Gathering, transmitting, or losing defense information 
with intent or reason to believe such information will be 
used to the injury of the United States is a federal 
crime. 18 U.S.C.A. § 793 et seq. See Espionage. 
Spying. To watch or listen to secretly. See Eaves
dropping; Spy; Wiretapping. 
Square. As used to designate a certain portion of land 
within the li,mits of a city or town, this term may be 
synonymous with ublock," that is, the smallest subdivi
sion which is bounded on all sides by principal streets, 
or it may denote a space (more or less rectangular) not 
built upon, and set apart for public passage, use, recrea
tion, or ornamentation, in the nature of a upark" but 
smaller. 
Under government survey system, an area measuring 
24 X 24 miles. 
Just; settled; fair. 
Public square. In its popular import, the phrase refers 
to ground occupied by a courthouse and other public 
buildings, normally at a point where two streets meet, 
but it may be used as synonymous with park. 
Square block. Territory bounded by four streets. Bern
feld v. Freedenberg, 125 Misc. 645, 211 N.Y.S. 692. 
Squatter. One who settles on another's land, without 
legal title or authority. A person entering upon lands, 
not claiming in good faith the right to do so by virtue of 
any title of his own or by virtue of some agreement with 
another whom he believes to hold the title. Under 
former laws, one who settled on public land in order to 
acquire title to the land. 
Squatter's right. See Adverse possession. 
Squeeze-out. Techniques by which a minority interest 
in a corporation is eliminated or reduced. Squeeze-outs 
may occur in a variety of contexts, e.g., in a Ugoing 
STAKE 
private" transaction in which minority shareholders are 
compelled to accept cash for their shares, or the is
suance of new shares to existing shareholders in which 
minority shareholders are given the unpleasant choice 
of having their proportionate interest in the corporation 
reduced significantly or of investing a large amount of 
additional or new capital over which they have no 
control and for which they receive little or no return. 
Gabhart v. Gabhart, 267 Ind. 370, 370 N.E.2d 345, 353. 
Many squeeze-outs involve the use of cash me rgers. 
USqueeze-out" is often used synonymously with ufreeze
out" (q. v.J. 
Squire. A contraction of uesquire." 
SS. An abbreviation used in that part of a record, 
pleading, or affidavit, called the Ustatement of the ven
ue." Commonly translated or read, Uto-wit," and sup
posed to be a contraction of "scilicet." 
S.S.A. Social Security Administration. 
S.S.I. Supplemental Security Income. 
S.S.S. Selective Service System. 
Stabilia /st::lbil(i)Y::l/. A writ called by that name, found
ed on a custom in Normandy, that where a man in 
power claimed lands in the possession of an inferior, he 
petitioned the prince that it might be put into his hands 
till the right was decided, whereupon he had this writ. 
Stabilize. To keep steady, fixed, as distinguished from 
fluctuating, shifting. McCanless v. Klein, 182 Tenn. 
631, 188 S.W.2d 745, 748. 
Stabilized prices. Prices held steady against any and 
all increases. Philadelphia Coke Co. v. Bowles, Em. 
App., 139 F.2d 349, 353. 
Stabit prresumptio donec probetur in contrarium 
/steyb::lt pr::lz�m(p)sh(iy)ow d6wn::lk pr::lbiyt::lr in 
k::lntrer(i)Y::lm/. A presumption will stand good till the 
contrary is proved. 
Stable-stand. In forest law, one of the four evidences or 
presumptions whereby a man was convicted of an intent 
to steal the king's deer in the forest. This was when a 
man was found at his standing in the forest with a 
cross-bow or long-bow bent, ready to shoot at any deer, 
or else standing close by a tree with greyhounds in a 
leash, ready to slip. 
Stacking. In insurance, refers to ability of Insured, 
when covered by more than one insurance policy, to 
obtain benefits from second policy on same claim when 
recovery from first policy alone would be inadequate. 
Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 
1059, 1060. 
Stagiarius /steyj(iy)er(i)Y::ls/. A resident. 
Stake. A deposit made to answer an event, as on a 
wager. Something deposited by two persons with the 
third on condition that it is to be delivered to the one 
who shall become entitled to it by the happening of a 
specified contingency. See also Stake holder. 
A boundary marker used for land survey purposes.

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STAKEHOLDER 
Stakeholder. Generally, a stakeholder is a third party 
chosen by two or more persons to keep on deposit 
property or money the right or possession of which is 
contested between them, and to be delivered to one who 
shall establish his right to it; and it is one who is 
entitled to interplead rival or contesting claimants to 
property or funds in his hands. Cochran v. Bank of 
Hancock County, 11 8 Ga.App. 100, 162 S.E.2d 765, 770. 
A person who is or may be exposed to multiple liability 
as the result of adverse claims. A stakeholder may 
commence an action of interpleader against two or more 
claimants. New York C.P.L.R. § 1006. See also Inter
pleader. 
A person with whom money is deposited pending the 
decision of a bet or wager (q. v.). His function is to 
receive the sums wagered and hold them against the 
determining event, whether that event be a horse race 
or otherwise, and then pay them over to the winner. 
Staking. Identification of boundaries of parcel of land 
by placing stakes in ground at boundary points. 
Stale, n. In Saxon law, larceny. 
Stale check. A check which bears a date of issue very 
much earlier than the date of its presentation or negoti
ation. A check which has been outstanding too long. 
A check, other than a certified check, that is present
ed for payment more than six months after its date. 
V.C.C. § 4-404. 
Stale demand or claim. A demand or claim that has 
long remained unasserted; one that is first asserted 
after an unexplained delay which is so long as to render 
it difficult or impossible for the court to ascertain the 
truth of the matters in controversy and do justice be
tween the parties, or as to create a presumption against 
the existence or validity of the claim, or a presumption 
that the claim has been abandoned or satisfied. Lus
chen v. Stanton, 192 Okl. 454, 137 P.2d 567, 572. It 
implies a greater lapse of time than is necessary to 
"laches." Bell v. Mackey, 191 S.C. 105, 3 S.E.2d 816, 
824, 830. The doctrine is purely an equitable one, and 
arises only when, from lapse of time and laches of 
plaintiff, it would be inequitable to allow a party to 
enforce his legal rights. Wood v. City Board of Plumb
ing Examiners, 192 Ga. 415, 15 S.E.2d 486, 488. See also 
Limitation (Statute of limitations). 
Stallage Ist61�j/. In old English law, the liberty of right 
of pitching or erecting stalls in fairs or markets, or the 
money paid for the same. 
Stallarius Istoler(i)y�s/. In Saxon law, the prrefectus 
stabuli, now master of the horse. Sometimes one who 
has a stall in a fair or market. 
Stamp. Stamped or printed paper affixed to official or 
legal documents, stock certificates, etc. as evidence that 
tax has been paid as required by law. A small label or 
strip of paper, printed and sold by the government, and 
required to be attached to mail-matter, and to certain 
other documents and articles (e.g. liquor, cigarettes) sub
ject to duty or excise. See Documentary stamp; Revenue 
stamps; Stamp tax. 
1404 
A mark, design, seal, etc., which indicates ownership, 
approval, etp. An identifying or characterizing mark or 
impression. 
Stamp acts. In English law, acts regulating the stamps 
upon deeds, contracts, agreements, papers in law pro
ceedings, bills and notes, letters, receipts, and other 
papers. English Act of 1765 requiring that revenue 
stamps be affixed to all official documents in American 
colonies. 
Stamp duties. In old English law, duties imposed upon 
and raised from stamps upon parchment and paper, and 
forming a branch of the perpetual revenue of the king
dom. 1 Bl.Comm. 323. See also Document ary stamp; 
Revenue stamps; Stamp; Stamp tax. 
Stamp tax. The cost of stamps which are required to be 
affixed to legal documents such as deeds, certificates, 
and the like. See Documentary stamp; Revenue stamps; 
Stamp. 
Stand. To cease from movement or progress; to pause, 
remain stationary or inactive. Jaggers v. Southeastern 
Greyhound Lines, D.C.Tenn., 34 F.Supp. 667, 66B. 
To abide; to submit to; as "to stand a trial." To 
appear in court. 
To remain as a thing is; to remain in force. Plead
ings objected to and held good are allowed to stand. 
Standard. Stability, general recognition, and conformity 
to established practice. Standard Accident Ins. Co. v. 
Standard Surety & Casualty Co., D.C.N.Y., 53 F.2d 11 9, 
120. A type, model, or combination of elements accept
ed as correct or perfect. A measure or rule applicable 
in legal cases such as the "standard of care" in tort 
actions. See Double standard; Reasonable man doctrine 
or standard; Standard of care. 
An ensign or flag used in war. 
Standard deduction. In taxation, a minimum amount 
allowed to individual taxpayers as a deduction from 
adjusted gross income in arriving at taxable income. 
An individual may choose to itemize deductions; how
ever, this should be done only if itemized deductions 
exceed the standard deduction. An additional standard 
deduction is allowed to taxpayers who are either blind 
or age 65 or older. A limited standard deduction is 
allowed to a taxpayer who is claimed as a dependent on 
another's tax return. I.R.C. §§ 62, 63. 
Standard established by law. That of a reasonable 
man under like circumstances. Gulf, C. & S. F. Ry. Co. 
v. Bell, Tex.Civ.App., 101 S.W.2d 363, 364. See Reason
able man doctrine or standard; Standard of care. 
Standard mortgage clause. In fire policy, clause pro
viding that in case of loss policy shall be payable to 
mortgagee, and that his interest as payee shall not be 
invalidated by act of mortgagor. Rhode Island Ins. Co. 
v. Wurtman, 265 Ky. 835, 98 S.W.2d 29, 31. 
Standard of care. In law of negligence, that degree of 
care which a reasonably prudent person should exercise 
in same or similar circumstances. If a person's conduct 
falls below such standard, he may be liable in damages

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1405 
for injuries or damages resulting from his conduct. See 
Negligence; Reasonable man doctrine or standard. 
In medical, legal, etc., malpractice cases a standard of 
care is applied to measure the competence of the profes
sional. The traditional standard for doctors is that he 
exercise the Haverage degree of skill, care, and diligence 
exercised by members of the same profession, practicing 
in the same or a similar locality in light of the present 
state of medical and surgical science." Gillette v. Tuck
er, 67 Ohio St. 106, 65 N.E. 865. With increased special
ization, however, certain courts have disregarded geo
graphical considerations holding that in the practice of a 
board-certified medical or surgical specialty, the stan
dard should be that of a reasonable specialist practicing 
medicine or surgery in the same special field. Bruni v. 
Tatsumi, 46 Ohio St.2d 127, 129, 346 N.E.2d 673, 676, 75 
O.O.2d 184. See also Malpractice. 
Standard of need. In public assistance law, total needs 
of an individual or family stipulated by the state, which, 
when unsatisfied by relevant resources makes the indi
vidual or family in need for public assistance purposes. 
Standard of proof. The burden of proof required in a 
particular type of case, as in a criminal case where the 
prosecution has the standard (i.e. burden) of proof be
yond a reasonable doubt, and in most civil cases where 
proof by a fair preponderance of the evidence is re
quired. See Burden of proof. 
Standard of weight, or measure. A weight or measure 
fixed and prescribed by law, to which all other weights 
and measures are required to correspond. 
Standard opinion. See Unqualified opinion. 
Standing. One's place in the community in the estima
tion of others; his relative position in social, commer
cial, or moral relations; his repute, grade, or rank. See 
Reputation; Standing to sue doctrine; Sta tus. 
Standing aside jurors. A practice by which, on the 
drawing of a jury for a criminal trial, the prosecuting 
officer puts aside a juror, provisionally, until the panel 
is exhausted, without disclosing his reasons, instead of 
being required to challenge him and show cause. The 
English statute 33 Edw. I deprived the crown of the 
power to challenge jurors without showing cause, and 
the practice of standing aside jurors was adopted, in 
England, as a method of evading its provisions. A 
similar practice was in use in Pennsylvania. 
Standing by. Used in law as implying knowledge, under 
such circumstances as rendered it the duty of the posses
sor to communicate it; and it is such knowledge, and not 
the mere fact of Hstanding by," that lays the foundation 
of responsibility. The phrase does not import an actual 
presence, Hbut implies knowledge under such circum
stances as to render it the duty of the possessor to 
communicate it." See also Estoppel. 
Standing master. An officer of the court appointed on a 
regular basis to hear and determine matters within his 
jurisdiction for which a master may be appointed, as a 
master in chancery. See also Master. 
STANDING TO SUE DOCTRINE 
Standing mute. Such exists in criminal case when 
defendant refuses to plead to the charge against him. If 
a defendant refuses to plead, the court shall enter a plea 
of not guilty. Fed.R.Crim.P. l1(a). 
Standing orders. Rules adopted by particular courts for 
governing practice before them. In some states, the 
presiding judge has authority to adopt standing orders 
for his court alone. They may include rules as to the 
time at which court commences each day, a procedure 
for requesting continuances of cases and a method by 
which cases are placed on the trial list of the particular 
court. They may be system wide or affect only a partic
ular court in the system. 
Standing seised to uses. A covenant to stand seised to 
uses is one by which the owner of an estate covenants to 
hold the same to the use of another person, usually a 
relative, and usually in consideration of blood or mar
riage. It is a species of conveyance depending for its 
effect on the statute of uses. 
Standing to be sued. Capacity of a person or sovereign 
to be a party defendant in an action. A state as sover
eign has no capacity to be sued except in cases in which 
it has consented to suit. See Sovereign immunity. 
Standing to sue doctrine. HStanding to sue" means 
that party has sufficient stake in an otherwise justicia
ble controversy to obtain judicial resolution of that con
troversy. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 
1361, 1364, 31 L.Ed.2d 636. Standing is a concept uti
lized to determine if a party is sufficiently affected so as 
to insure that a justiciable controversy is presented to 
the court; it is the right to take the initial step that 
frames legal issues for ultimate adjudication by court or 
jury. State ex reI. Cartwright v. Oklahoma Tax Com'n, 
Okl., 653 P.2d 1230, 1232. The requirement of Hstand
ing" is satisfied if it can be said that the plaintiff has a 
legally protectible and tangible interest at stake in the 
litigation. Guidry v. Roberts, La.App., 331 So.2d 44, 50. 
Standing is a jurisdictional issue which concerns power 
of federal courts to hear and decide cases and does not 
concern ultimate merits of substantive claims involved 
in the action. Weiner v. Bank of King of Prussia, 
D.C.Pa., 358 F.Supp. 684, 695. The doctrine emanates 
from the case or controversy requirement of the Consti
tution and from general principles of judicial adminis
tration, and seeks to insure that the plaintiff has alleged 
such a personal stake in the outcome of the controversy 
as to assure concrete adverseness. Campaign Clean 
Water, Inc. v. Ruckelshaus, D.C.Va., 361 F.Supp. 689, 
692. 
Standing is a requirement that the plaintiffs have 
been injured or been threatened with injury by govern
mental action complained of, and focuses on the ques
tion of whether the litigant is the proper party to fight 
the lawsuit, not whether the issue itself is justiciable. 
Carolina Environmental Study Group, Inc. v. U. S. 
Atomic Energy Comm., D.C.N.C., 431 F.Supp. 203, 218. 
Essence of standing is that no person is entitled to assail 
the constitutionality of an ordinance or statute except as 
he himself is adversely affected by it. Sandoval v. Ryan,

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STANDING TO SUE DOCTRINE 
Colo.App., 535 P.2d 244, 247. See also Case (Cases and 
controversies); Justiciable controversy; Ripeness doctrine. 
Administrative Procedure Act. Such Act authorizes ac
tions against federal officers by "any person suffering 
legal wrong because of agency action, or adversely af
fected or aggrieved by agency action within the meaning 
of a relevant statute." 5 U.S.C.A. § 702. 
Staple. A major commodity grown, traded and demand
ed; e.g. grain, salt, flour. Such commodity is usually 
very important to the local economy :where it is grown 
or produced. Raw material. 
In English law, a mart or market. A place where the 
buying and selling of wool, lead, leather, and other 
articles were put under certain terms. 
In International law, the right of staple, as exercised 
by a people upon foreign merchants, is defined to be that 
they may not allow them to set their merchandise and 
wares to sale but in a certain place. This practice is not 
in use in the United States. 
Law of the staple. In England, law administered in the 
court of the mayor of the staple; the law-merchant. 
Staple inn. An inn of chancery. See Inns of Chancery. 
Statute staple. The English statute of the staple, 27 Ed. 
III, stat. 2, confined the sale of all commodities to be 
exported to certain towns in England, called estaple or 
staple, where foreigners might resort. It authorized a 
security for money, commonly called statute staple, to 
be taken by traders for the benefit of commerce; the 
mayor of the place is entitled to take recognizance of a 
debt in proper form, which had the effect to convey the 
lands of the debtor to the creditor till out of the rents 
and profits of them he should be satisfied. A security 
for a debt acknowledged to be due, so called from its 
being entered into before the mayor of the staple, that is 
to say, the grand mart for the principal commodities or 
manufactures of the kingdom, formerly held by act of 
parliament in certain trading towns. In other respects 
it resembled the statu te-merchant (q.v .), but like that has 
now fallen into disuse. 
Starboard. In maritime law, the righthand side of a 
vessel when the observer faces forward. "Starboard 
tack," refers to the course of vessel when she has the 
wind on her starboard bow. 
Star-chamber. A court which originally had jurisdiction 
in cases where the ordinary course of justice was so 
much obstructed by one party, through writs, combina
tion of maintenance, or overawing influence that no 
inferior court would find its process obeyed. The court 
consisted of the privy council, the common-law judges, 
and (it seems) all peers of parliament. In the reign of 
Henry VIII and his successors, the jurisdiction of the 
court was illegally extended to such a degree (especially 
in punishing disobedience to the king's arbitrary procla
mations) that it became odious to the nation, and was 
abolished. 
Stare decisis /steriy d�says�s/. Lat. To abide by, or 
adhere to, decided cases. 
1406 
Policy of courts to stand by precedent and not to 
disturb settled point. Neff v. George, 364 Ill. 306, 4 
N.E.2d 388, 390, 391. Doctrine that, when court has 
once laid down a principle of law as applicable to a 
certain state of facts, it will adhere to that principle, and 
apply it to all future cases, where facts are substantially 
the same; regardless of whether the parties and proper
ty are the same. Horne v. Moody, Tex.Civ.App., 146 
S.W.2d 505, 509, 510. Under doctrine a deliberate or 
solemn decision of court made after argument on ques
tion of law fairly arising in the case, and necessary to its 
determination, is an authority, or binding precedent in 
the same court, or in other courts of equal or lower rank 
in subsequent cases where the very point is again in 
controversy. State v. Mellenberger, 163 Or. 233, 95 P.2d 
709, 719, 720. Doctrine is one of policy, grounded on 
theory that security and certainty require that accepted 
and established legal principle, under which rights may 
accrue, be recognized and followed, though later found 
to be not legally sound, but whether previous holding of 
court shall be adhered to, modified, or overruled is 
within court's discretion under circumstances of case 
before it. Otter Tail Power Co. v. Von Bank, 72 N.D. 
497, 8 N.W.2d 599, 607. Under doctrine, when point of 
law has been settled by decision, it forms precedent 
which is not afterwards to be departed from, and, while 
it should ordinarily be strictly adhered to, there are 
occasions when departure is rendered necessary to vindi
cate plain, obvious principles of law and remedy contin
ued injustice. The doctrine is not ordinarily departed 
from where decision is of long-standing and rights have 
been acquired under it, unless considerations of public 
policy demand it. Colonial Trust Co. v. Flanagan, 344 
Pa. 556, 25 A.2d 728, 729. The doctrine is limited to 
actual determinations in respect to litigated and neces
sarily decided questions, and is not applicable to dicta or 
obiter dicta. 
See also Preced�nt; Res (Res judicata). 
Stare decisis et non quieta movere / steriy d�says�s et 
non kwayiyt� mowviriy /. To adhere to precedents, and 
not to unsettle things which are established. Ballard 
County v. Kentucky County Debt Commission, 290 Ky. 
770, 162 S.W.2d 771, 773. See Stare decisis. 
Stare in judicio /steriy in juwdish(iy)ow/. Lat. To 
appear before a tribunal, either as plaintiff or defen
dant. 
Star page. The line and word at which the pages of the 
first edition of a law book began are frequently marked 
by a star in later editions or subsequent reprintings or 
reproductions if the original page numbering is impor
tant for citation or reference purposes. 
Starr or starra /star(�)/. The old term for contract or 
obligation among the Jews, being a corruption from the 
Hebrew word "shetar, " a covenant, by an ordinance of 
Richard I, no starr was allowed to be valid, unless 
deposited in one of certain repositories established by 
law, the most considerable of which was in the king's 
exchequer at Westminster; and Blackstone conjectures 
that the room in which these chests were kept was

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1407 
thence called the "starr-cham ber." 4 Bl.Comm. 266, 
267, note a. 
Stash. To secrete away; to hide or conceal money or 
property, commonly used in reference to ill-gotten gain 
or property. See Conceal. 
State, n. A people permanently occupying a fixed terri
tory bound together by common-law habits and custom 
into one body politic exercising, through the medium of 
an organized government, independent sovereignty and 
control over all persons and things within its bound
aries, capable of making war and peace and of entering 
into international relations with other communities of 
the globe. United States v. Kusche, D.C.Cal., 56 F.Supp. 
201, 207, 208. The organization of social life which 
exercises sovereign power in behalf of the people. Dela
ny v. Moraitis, C.C.A.Md., 136 F.2d 129, 130. In its 
largest sense, a "state" is a body politic or a society of 
men. Beagle v. Motor Vehicle Acc. Indemnification 
Corp., 44 Misc.2d 636, 254 N.Y.S.2d 763, 765. A body of 
people occupying a definite territory and politically or
ganized under one government. State ex reI. Maisano v. 
Mitchell, 155 Conn. 256, 231 A.2d 539, 542. A territori
al unit with a distinct general body of law. Restate
ment, Second, Conflicts, § 3. Term may refer either to 
body politic of a nation (e.g. United States) or to an 
individual governmental unit of such nation (e.g. Califor
nia). 
The section of territory occupied by one of the United 
States. One of the component commonwealths or states 
of the United States of America. The term is sometimes 
applied also to governmental agencies authorized by 
state, such as municipal corporations. Any state of the 
United States, the District of Columbia, the Common
wealth of Puerto Rico, and any territory or possession 
subject to the legislative authority of the United States. 
Uniform Probate Code, § 1-201(40). 
The people of a state, in their collective capacity, 
considered as the party wronged by a criminal deed; the 
public; as in the title of a cause, "The State vs. A. B." 
Term "state" as used in rules providing when a state 
may appeal in a criminal case is all inclusive and 
intended to include not only the state but its political 
subdivisions, counties and cities. Spokane County v. 
Gifford, 9 Wash.App. 541, 513 P.2d 301, 302. Federal 
Government is a "state" bound by all of provisions of 
the Interstate Agreement on Detainers. Enright v. U. 
S., D.C.N.Y., 437 F.Supp. 580, 581. 
The circumstances or condition of a being or thing at 
a given time. 
Foreign state. A foreign country or nation. The several 
United States are considered "foreign" to each other 
except as regards their relations as common members of 
the Union. 
State officers. Those whose duties concern the state at 
large or the general public, or who are authorized to 
exercise their official functions throughout the entire 
state, without limitation to any political subdivision of 
the state. In another sense, officers belonging to or 
exercising authority under one of the states of the 
STATED 
Union, as distinguished from the officers of the United 
States. 
State offices. See Office. 
State paper. A document prepared by, or relating to, 
the political department of the government of a state or 
nation, and concerning or affecting the administration 
of its government or its political or international rela
tions. Also, a newspaper, designated by public authori
ty, as the organ for the publication of public statutes, 
resolutions, notices, and advertisements. 
State revenue. Current income of state from whatever 
source derived that is subject to appropriation for public 
uses. 
State's evidence. See that title. 
State tax. A tax the proceeds of which are to be devoted 
to the expenses of the state, as distinguished from taxa
tion for federal, local or municipal purposes; e.g. state 
income or sales tax. 
State, v. To express the particulars of a thing in writing 
or in words; to set down or set forth in detail; to aver, 
allege, or declare. To set down in gross; to mention in 
general terms, or by way of reference; to refer. 
State action. In general, term used in connection with 
claims under due process clause and Civil Rights Act for 
which a private citizen is seeking damages or redress 
because of improper governmental intrusion into his 
life. In determining whether an action complained of 
constitutes "state action" within purview of Fourteenth 
Amendment, court must examine whether sufficiently 
close nexus exists between state and challenged action 
so that the action may fairly be treated as that of the 
state itself. Denver Welfare Rigpts Organization v. 
Public Utilities Comm., Colo., 547 P.2d 239, 243. There 
is no practical distinction between what constitutes 
"state action" for purposes of Fourteenth Amendment 
and what is required to fulfill "under color of state law" 
provision of 42 U.S.C.A. § 1983. Ouzts v. Maryland 
Nat. Ins. Co., C.A.Nev., 505 F.2d 547, 549. See Color of 
law. 
State auditor. The elected or appointed official in a 
state who is responsible for auditing the accounts of 
state agencies. 
State banks. Those banks chartered by a state in con
trast to federally chartered banks. Banks under the 
supervision and jurisdiction of state agencies. See also 
Bank. 
State courts. Those courts which constitute the state 
judicial system in contrast to federal courts. City and 
county courts may or may not be part of the state 
system of courts, depending upon the jurisdiction. 
Stated. Determined, fixed, or settled. 
Stated meeting. A meeting of a board of directors, board 
of officers, etc., held at the time appointed therefor by 
law, ordinance, by-law, or other regulation; as distin
guished from "special" meetings, which are held on call

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STATED 
as the occasion may arise, rather than at a regularly 
appointed time, and from adjourned meetings. 
Stated term. A regular or ordinary term or session of a 
court for the dispatch of its general business, held at the 
time fixed by law or rule; as distinguished from a 
special term, held out of the due order or for the trans
action of particular business. 
Stated times. Occurring at regular intervals or given 
regularly; fixed, regular in operation or occurrence, not 
occasional or fluctuating. 
Stated account. Term signifies an agreed balance be
tween the parties to a settlement; that is, that they 
have agreed after an investigation of their accounts that 
a certain balance is due from one to the other. Holt v. 
Western Farm Services, Inc., 19 Ariz.App. 335, 507 P.2d 
674, 677. 
Stated capital. Amount of capital contributed by stock
holders. Sometimes used to mean legal capital. 
The capital or equity of a corporation as it appears in 
the balance sheet. The sum of the par value of all par 
value shares issued, the entire amount received for 
no-par shares, and any amounts transferred by a stock 
dividend or other corporate action from surplus to stated 
capital. In some jurisdictions, only a portion of the 
amount received for no-par shares need be included in 
stated capital and the remainder may be credited to 
paid-in surplus and be distributed as a dividend. 
State Department. That department in the executive 
branch of the federal government, headed by the Secre
tary of State, which is principally responsible for foreign 
affairs and foreign trade. The Department determines 
and analyzes the facts relating to our overseas interests, 
makes recommendations on policy and future action, 
and takes the necessary steps to carry out established 
policy. In so doing, the Department engages in continu
ous consultations with other states; negotiates treaties 
and agreements with foreign nations; speaks for the 
United States in the United Nations and in numerous 
major international organizations in which the United 
States participates; and represents the United States at 
numerous major international organizations in which 
the United States participates; and represents the Unit
ed States at numerous international conferences annual
ly. 
Stated value. A term used in accounting in reference to 
the value assigned to a corporation's stock, similar to 
par value. There is no relation between the stated 
value and the market value of stock. Stated value is the 
legal capital of the company. See also Par value. 
State law. Refers to laws of a state or ordinances of city 
or town, all as distinguished from Federal law which is 
the supreme law of the land under Art. VI of the U.S. 
Constitution. However, in matters which are not neces
sarily governed by Federal law, the Federal courts will 
look to state law and be governed by it. See Erie v. 
Tompkins. Compare Federal Acts. 
Statement. In a general sense, an allegation; a declara
tion of matters of fact. The term has come to be used of 
1408 
a variety of formal narratives of facts, required by law 
in various jurisdictions as the foundation of judicial or 
official proceedings and in a limited sense is a formal, 
exact, detailed presentation. 
An oral or written assertion, or nonverbal conduct of 
a person, if it is intended by him as an assertion. 
Fed.R.Evid. 801(a). Oral or written verbal expression, 
or nonverbal conduct of a person intended by him as a 
substitute for oral or written verbal expression. Calif. 
Evid.Code § 225. 
A hearsay declarant's nonverbal conduct may qualify 
as a "statement" for purpose of exclusion under the 
hearsay rule if the conduct was intended by the declar
ant as a substitute for oral or written verbal expression. 
Matter of Cheryl H., 2 Dist., 153 C.A.3d 1098, 200 
Cal.Rptr. 789, 807. 
See also Closing statement; False statement; Financial 
statement; Opening statement of counsel; Prior inconsist
ent statements; Registration statement; Voluntary state
ment. 
Bank statement. See State ment of account. 
Financial statement. See Balance (Balance sheet); Fi
nancial statement; Income statement; Profit and loss 
statement; Statement of affairs. 
Statement of account. A report issued monthly or 
periodically by a bank or creditor to a customer setting 
forth the amounts billed, credits given and balance due. 
A bank statement includes the checks drawn and 
cleared, the deposits made, the charges debited, and 
account balance. See also Financial statement. 
Statement of affairs. Document which must be filed in 
bankruptcy proceedings, setting forth answers to ques
tions about the past and present financial situation of 
the debtor. A balance sheet showing immediate liqui
dation amounts, rather than historical costs, usually 
prepared when insolvency or bankruptcy is imminent. 
See also Financial statement; Income statement; State
ment of condition. 
Statement of claim. See Claim; Complaint. 
Statement of condition. A balance sheet which shows 
the assets, liabilities, reserves and capital of a person, 
business, or a financial institution, as of a given date. 
See also Balance (Balance sheet); Financial statement; 
Statement of affairs. 
Statement of confession. Of tentimes referred to as a 
"power of attorney", "cognovit note", or "confession of 
judgment", is written authority of debtor and his di
rection to enter judgment against debtor as stated there
in. See Cognovit judgment; Judgment (Confession of 
judgment). 
Statement of defense. See Answer; Reply. 
Statement of income. See Financial statement; Income 
statement; Profit and loss statement. 
Statement of particulars. See Bill (Bill of particulars). 
State of art. See State of the art. 
State of facts. Formerly, when a master in chancery 
was directed by the court of chancery to make an

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1409 
inquiry or investigation into any matter arising out of a 
suit, and which could not conveniently be brought before 
the court itself, each party in the suit carried in before 
the master a statement showing how the party bringing 
it in represented the matter in question to be; and this 
statement was technically termed a "state of facts," and 
formed the ground upon which the evidence was re
ceived, the evidence being, in fact, brought by one party 
or the other, to prove his own or disprove his opponent's 
state of facts. And so now, a state of facts means the 
statement made by any one of his version of the facts. 
State officer. One who holds elective or appointive 
position in state government, e.g. state attorney general. 
State of mind. A person's reasons and motives for 
acting as he did. Term used in connection with evi
dence. See Mens rea; Mental state; State of mind excep
tion. 
State of mind exception. Under the "state of mind 
exception" to the hearsay rule, an out of court declara
tion of a present existing motive or reason for acting is 
admissible even though the declarant is available to 
testify. Oberman v. Dun & Bradstreet, Inc., C.A.Ill., 507 
F.2d 349, 351. See Fed.Evid.R. 803(3). 
State of the art . In context of products liability case 
means level of pertinent scientific and technical knowl
edge existing at time of manufacture. Wiska v. St. 
Stanislaus Social Club, Inc., 7 Mass.App. 813, 390 N.E.2d 
1133, 1138, 3 A.L.R.4 th 480. 
State of the case. In general, the posture of litigation at 
a given point in time. It may be ready for trial, in the 
process of trial, or pending appeal. 
State paper office. An office established in London in 
1578 for the custody of state papers. The head of it was 
the "Clerk of the Papers." 
State police. A department or agency of a state govern
ment empowered with authority of police throughout a 
state and commonly trained and governed in a quasi
military fashion. 
State police power. Every state has power to enact 
laws for the protection of its citizens' health, welfare, 
morals and safety and such power is derived from the 
10th Amendment, U.S .Const. This power is upheld if 
exercised in a manner consistent with its ends and if the 
means used are reasonably calculated to protect one of 
these legitimate ends. See also Police power. 
State's attorney. An officer who represents the State in 
securing indictments and in prosecuting criminal cases. 
Also called District or County Attorney or Prosecuting 
Attorney. Commonly he is elected in a county election 
and his authority is county wide. 
State seal. The official die or signet having a raised 
emblem and used by state officials on documents of 
importance. Every state has its own such seal. 
State secret. A governmental secret relating to national 
defense or international relations of United States and, 
once established, government has a privilege to refuse to 
disclose the secret in civil litigation and to prevent any 
STATIST 
litigant from disclosing the secret. Sigler v. LeVan, 
D.C.Md., 485 F.Supp. 185, 193. 
State secrets privilege. This is a long-standing eviden
tiary privilege that permits government to resist dis
covery of evidence if disclosure reasonably could be seen 
as threat to military or diplomatic interest of nation; 
when properly invoked, privilege is absolute, and no 
showing of need can overcome it. Halkin v. Helms, 
C.A.D.C., 690 F.2d 977, 990. 
State's evidence. A popular term for testimony given 
by an accomplice or joint participant in the commission 
of a crime tending to criminate or convict the others, 
and given under an actual or implied promise of immu
nity or lesser sentence for himself. 
State sovereignty. The right of a state to self-govern
ment. The role of supreme authority or rule exercised 
by every state within the Union. See also Sovereign 
states. 
State's rights. Rights not conferred on the federal 
government or forbidden to the States according to the 
10th Amendment, U.S. Constitution. 
Statim /steyt�m/. Lat. Forthwith; immediately. In 
old English law, this term meant either "at once," or 
"within a legal time," i.e., such time as permitted the 
legal and regular performance of the act in question. 
Stating an account. Exhibiting, or listing in their or
der, the items which make up an account. 
Stating part of a bill. That part of a bill in chancery in 
which the plaintiff states the facts of his case; it is 
distinguished from the charging part of the bill and 
from the prayer. 
Station. Social position or status. See Standing; Status. 
A place where military duty is performed or stores are 
kept or something connected with war is done. 
A place at which both freight and passengers are 
received for transportation or delivered after transporta
tion. 
In the civil law, a place where ships may ride in 
safety. 
Stationers' company. A body formed in 1557 in London 
of 97 London stationers and their successors, to whom 
was entrusted, in the first instance, and, under Orders 
in Council, the censorship of the press. 
Stationers' hall. In old English law, the hall of the 
stationers' company, at which every person claiming 
copyright in a book must register his title, in order to be 
able to bring actions against persons infringing it. 
Stationery office. In old English law, a government 
office established as a department of the treasury, for 
the purpose of supplying government offices with sta
tionery and books, and of printing and publishing 
government papers. 
Station house. Police station or precinct. 
Statist /steyt�st/. A statesman; a politician; one skilled 
in government.

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STAT PRO RATIONE VOLUNTAS 
Stat pro ratione voluntas / stret prow rreshiyowniy 
v�l�ntres/. The will stands in place of a reason. 
Stat pro ratione voluntas populi / stret prow rreshiyow
niy v�l�ntres pop(y)�lay/. The will of the people stands 
in place of a reason. 
Statu liber /stretyuw layb�r/. Lat. In Roman law, one 
who is made free by will under a condition; one who has 
his liberty fixed and appointed at a certain time or on a 
certain condition. 
Statu liberi /stretyuw lib�ray/. Lat. In Louisiana, 
slaves for a time, who had acquired the right of being 
free at a time to come, or on a condition which was not 
fulfilled, or in a certain event which had not happened, 
but who in the meantime remained in a state of slavery. 
Civ.Code La.1838. 
Status. Standing; state or condition; social position. 
The legal relation of individual to rest of the communi
ty. The rights, duties, capacities and incapacities which 
determine a person to a given class. A legal personal 
relationship, not temporary in its nature nor terminable 
at the mere will of the parties, with which third persons 
and the state are concerned. Holzer v. Deutsche Rei
chsbahn Gesellschaft, 159 Misc. 830, 290 N.Y.S. 181, 191. 
While term implies relation it is not a mere relation. 
Status crime. A class of crime which consists not in 
proscribed action or inaction, but in the accused's hav
ing a certain personal condition or being a person of a 
specified character. An example of a status crime is 
vagrancy. Status crimes are constitutionally suspect. 
For example, being a drug addict is no longer a punisha
ble offense. See Robinson v. Calif ornia, 370 U.S. 660, 82 
S.Ct. 1417, 8 L.Ed.2d 758. 
Status de manerio / steyt�s diy m�niriyow / . In old 
English law, the assembly of the tenants in the court of 
the lord of a manor, in order to do their customary suit. 
Status of irremovability. In old English law, the right 
acquired by a pauper, after one year's residence in any 
parish, not to be removed therefrom. 
Status quo / steyt�s kwow / . The existing state of things 
at any given date. Status quo ante bellum, the state of 
things before the war. "Status quo" to be preserved by 
a preliminary injunction is the last actual, peaceable, 
uncontested status which preceded the pending contro
versy. Edgewater Consb. Co., Inc. v. Percy Wilson 
Mortg. & Finance Corp., 2 Ill.Dec. 864, 357 N.E.2d 1307, 
1314. 
Statutable, or statutory /strety�t�b�lIstrety�t(o)riy/. 
That which is introduced or governed by statutory law, 
as opposed to the common law or equity. Thus, a court 
is said to have statutory jurisdiction when jurisdiction is 
given to it in certain matters by act of the legislature. 
Statuta pro publico commodo late interpretantur 
/ st�tyuwt� prow p�bl�kow kom�dow leytiy int�r
pr�trent�r/. Statutes made for the public good ought to 
be liberally construed. 
Statuta suo clauduntur territorio nec ultra territori
um disponunt /st�tyuwt� s(y)uwow klod�nt�r tehr�tori-
1410 
yow nek :}ltr;} tehr;}toriy;}m d;}spown;}ntl. Statutes are 
confined to their own territory, and have no extraterri
torial effect. 
Statute, n. A formal written enactment of a legislative 
body, whether federal, state, city, or county. An act of 
the legislature declaring, commanding, or prohibiting 
something; a particular law enacted and established by 
the will of the legislative department of government; 
the written will of the legislature, solemnly expressed 
according to the forms necessary to constitute it the law 
of the state. Such may be public or private, declaratory, 
mandatory, directory, or enabling, in nature. For man
datory and directory statutes, see Directory; Mandatory 
statutes. 
Depending upon its context in usage, a statute may 
mean a single act of a legislature or a body of acts which 
are collected and arranged according to a scheme or for 
a session of a legislature or parliament. 
This word is used to designate the legislatively created 
laws in contradistinction to court decided or unwritten 
laws. See Common law. 
See also Codification; Mandatory statutes; Revised stat
utes; Slip law; Slip law print; Special law. 
Affirmative statute. See that title. 
Criminal statute. An act of the Legislature as an orga
nized body relating to crime or its punishment. See 
Crime; Criminal law; Penal code; Penal laws. 
Declaratory statu te. See that title. 
Enabling statute. See that title. 
Expository statu te. See that title. 
General statu te. A statute relating to the whole commu
nity, or concerning all persons generally, as distin
guished from a private or special statute. 
Local statute. See Local law. 
Negative statute. A statute expressed in negative terms; 
a statute which prohibits a thing from being done, or 
declares what shall not be done. 
Penal statute. See Crime; Criminal law; Penal code; 
Penal laws; Punitive statute. 
Perpetual statute. One which is to remain in force 
without limitation as to time; one which contains no 
provision for its repeal, abrogation, or expiration at any 
future time. 
Personal statu tes. In foreign and modern civil law, 
those statutes which have principally for their object the 
person, and treat of property only incidentally. A per
sonal statute, in this sense of the term, is a law, ordi
nance, regulation, or custom, the disposition of which 
affects the person and clothes him with a capacity or 
incapacity, which he does not change with every change 
of abode, but which, upon principles of justice and poli
cy, he is assumed to carry with him wherever he goes. 
The term is also applied to statutes which, instead of 
being general, are confined in their operation to one 
person or group of persons. See Private law; Special law.

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1411 
Private statute. A statute which operates only upon 
particular persons, and private concerns. An act which 
relates to certain individuals, or to particular classes of 
men. See Private law; Special law. 
Public statute. A statute enacting a universal rule 
which regards the whole community, as distinguished 
from one which concerns only particular individuals and 
affects only their private rights. See Public law. See 
also General statute, above. 
Punitive statute. See that title. 
Real statu tes. In the civil law, statutes which have 
principally for their object property, and which do not 
speak of persons, except in relation to property. 
Reference statu tes. See that title. 
Remedial statute. See Remedial laws or statutes. 
Revised statu tes. See that title. 
Special statute. One which operates only upon particu
lar persons and private concerns. A private statute. 
Distinguished from a general or public statute. See 
Special law. 
Statute fair. In old English law, a fair at which laborers 
of both sexes stood and offered themselves for hire; 
sometimes called also "Mop." 
Statute-merchant. In old English law, a security for a 
debt acknowledged to be due, entered into before the 
chief magistrate of some trading town, pursuant to the 
statute 13 Edw. I, De Mercatoribus, by which not only 
the body of the debtor might be imprisoned, and his 
goods seized in satisfaction of the debt, but also his lands 
might be delivered to the creditor till out of the rents 
and profits of them the debt be satisfied. Now fallen 
into disuse. 
Statute of accumulations. In old English law, the stat
ute 39 & 40 Geo. III, c. 98, forbidding the accumulation, 
beyond a certain period, of property settled by deed or 
will. 
Statute of allegiance de facto. An act of 11 Hen. VII, c. 
1, requiring subjects to give their allegiance to the 
actual king for the time being, and protecting them in so 
doing. 
Statute of distributions. See Distribution. 
Statute of Elizabeth. In old English law, the statute 13 
Eliz., c. 5, against conveyances made in fraud of credi
tors. 
Statute of frauds. See Frauds, Statute of. 
Statute of Gloucester. In old English law, the statute 6 
Edw. I, c. 1, A.D. 1278. It takes its name from the place 
of its enactment, and was the first statute giving costs in 
actions. 3 Bl.Comm. 399. 
Statute of laborers. See Laborer. 
Statute of limitations. See Limitation (Statute of limita
tion). 
Statute of repose. "Statutes of limitations" extinguish, 
after period of time, right to prosecute accrued cause of 
STATUTORY BOND 
action; Ustatute of repose," by contrast, limits potential 
liability by limiting time during which cause of action 
can arise. Kline v. J.I. Case Co., D.C.Ill., 520 F.Supp. 
564, 567. It is distinguishable from statute of limita
tions, in that statute of repose cuts off right of action 
after specified time measured from delivery of product 
or completion of work, regardless of time of accrual of 
cause of action or of notice of invasion of legal rights. 
Universal Engineering Corp. v. Perez, Fla., 451 So.2d 
463, 465. 
Statute of uses. See Use. 
Statute of wills. In old English law, the statute 32 Hen. 
VIII, c. 1, which enacted that all persons being seised in 
fee-simple (except femes covert, infants, idiots, and per
sons of non-sane memory) might, by will and testament 
in writing, devise to any other person, except to bodies 
corporate, two-thirds of their lands, tenements, and her
editaments, held in chivalry, and the whole of those held 
in socage. 2 Bl.Comm. 375. 
Statute roll. A roll upon which an English statute, after 
receiving the royal assent, was formerly entered. 
Statutes at large. An official compilation of the acts and 
resolutions of each session of Congress published by the 
Office of the Federal Register in the National Archives 
and Records Service. It consists of two parts, the first 
comprising public acts and joint resolutions, the second, 
private acts and joint resolutions, concurrent resolu
tions, treatises, proposed and ratified amendments to 
Constitution, and Presidential proclamations. The ar
rangement is currently by Public Law number, and by 
chapter number in pre-1951 volumes. This is the offi
cial print of the law for citation purposes where titles of 
the United States Code have not been enacted into 
positive law. 
Statutes of amendments and Jeofailes. Formerly, stat
utes whereby a pleader who perceived any slip in the 
form of his proceedings, and acknowledged the error 
(jeofaile), was permitted to amend. 
Statute staple. See Staple. 
Temporary statute. One which is limited in its duration 
at the time of its enactment. It continues in force until 
the time of its limitation has expired, unless sooner 
repealed. A statute which by reason of its nature has 
only a single and temporary operation--e.g. an appropri
ation bill-is also called a temporary statute. 
Validating statute. See that title. 
Statutes at lar ge. See Stat ute. 
Statuti /st;}t(y)uwtay/. Lat. In Roman law, licensed or 
registered advocates; members of the college of advo
cates. The number of these was limited, and they 
enjoyed special privileges from the time of Constantine 
to that of Justinian. 
Statutory. Relating to a statute; created or defined by a 
statute; required by a statute; conforming to a statute. 
Statutory bond. One that either literally or substan
tially meets requirements of statute. Southern Surety

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STATUTORY BOND 
Co. v. United States Cast Iron Pipe & Foundry Co., 
C.C.A.Mo., 13 F.2d 833, 835. 
Statutory construction. That branch of the law deal
ing with the interpretation of laws enacted by a legisla
ture. A judicial function required when a statute is 
invoked and different interpretations are in contention. 
Where legislature attempts to do several things one of 
which is invalid, it may be discarded if remainder of the 
act is workable and in no way depends upon invalid 
portion, but if that portion is an integral part of the act, 
and its excision changes the manifest intent of the act 
by broadening its scope to include subject matter or 
territory which was not included therein as enacted, 
such excision is "judicial legislation" and not "statutory 
construction". Ettinger v. Studevent, 219 Ind. 406, 38 
N.E.2d 1000, 1007. See Construction; Strict construction. 
Statutory crime. See Crime; Penal code; Penal laws. 
Statutory dedication. See Dedication. 
Statutory exception. A provision in a statute exempt
ing certain conduct or persons from the thrust of the 
law enacted. 
Statutory exposition. When the language of a statute 
is ambiguous, and any subsequent enactment involves a 
particular interpretation of the former act, it is said to 
contain a statutory exposition of the former act. 
Statutory extortion. The unlawful extraction of money 
or other value by means of a threat not sufficient for 
robbery, or a communication for the purpose of such 
extraction. See e.g. 18 U.S.C.A. § 871 et seq. See also 
Extorti on. 
Statutory foreclosure. See Foreclosure. 
Statutory instruments. English administrative regula
tions and orders. The term applies especially to the 
administrative rules published since 1939, supplement
ing the English administrative code, Statutory Rules 
and Orders. 
Statutory law. That body of law created by acts of the 
legislature in contrast to constitutional law and law 
generated by decisions of courts and administrative bod
ies. See Statute. 
Statutory lien. A lien arising solely by force of statute 
upon specified circumstances or conditions, but does not 
include any lien provided by or dependent upon an 
agreement to give security, whether or not such lien is 
also provided by or is also dependent upon statute and 
whether or not the agreement or lien is made fully 
effective by statute. Bankruptcy Code § 101. 
Statutory merger. See Merger (Corporations). 
Statutory obligation. An obligation-whether to pay 
money, perform certain acts, or discharge certain 
duties-which is created by or arises out of a statute, as 
distinguished from one founded upon acts between par
ties or jural relationships. 
Statutory offense. See Crime; Penal code; Penal laws. 
Statutory partnership association. See Partnership. 
1412 
Statutory penalty. One imposed against the offender 
for some statutory violation by him. People v. Corcillo, 
195 Misc. 198, 88 N.Y.S.2d 534, 536. One which an 
individual is allowed to recover against a wrongdoer as 
satisfaction for wrong or injury suffered, without refer
ence to actual damage sustained. Nording v. Johnston, 
205 Or. 315, 283 P.2d 994, 998. In a civil sense, a 
"statutory penalty" is a pecuniary punition, imposed for 
doing some act which is prohibited or for omitting to do 
some act which is required to be done; e.g. Copyright 
Act provides statutory damages for copyright infringe
ment. 17 U.S.C.A. § 504(c); 18 U.S.C.A. § 2319. See 
also Penalty. 
Statutory rape. The unlawful sexual intercourse with a 
female under the age of consent which may be 16, 17 or 
18 years of age, depending upon the state statute. The 
government is not required to prove that intercourse 
was without the consent of the female because she is 
conclusively presumed to be incapable of consent by 
reason of her tender age. See also Rape. 
Statutory release. In England, a conveyance which 
superseded the old compound assurance by lease and 
release. It was created by St. 4 & 5 Vict., c. 21, which 
abolished the lease for a year. 
Statutory staple. An ancient writ that lay to take the 
body of a person and seize the lands and goods of one 
who had forfeited a bond called statute staple. See 
Staple. 
Statutory successor. A statutory successor is the per
son to whom all assets of a corporation pass upon its 
dissolution under the provisions of a statute of the state 
of incorporation which is in force at the time of the 
dissolution. See Restatement, Second, Conflicts, § 388. 
Statutum /st;}t(y)uwt;}m/. Lat. Established; deter
mined. 
In the civil law, a term applied to judicial action. 
In old English law, a statute; an act of parliament. 
Statutum affirmativum non derogat communi legi 
/st;}t(y)uwt;}m ;}f�rm;}tayv;}m non der;}g;}t k;}myUwnay 
liyjay /. An affirmative statute does not derogate from 
the common law. 
Statutum ex gratia regis dicitur, quando rex digna
tur cedere de jure suo regio, pro commodo et quiete 
populi sui /st;}t(y)uwt;}m eks greysh(iy);} riyj;}s dis;}t;}r, 
kwondow reks digneyt;}r siyd;}riy diy juriy s(y)uwow 
riyj(iy )ow, prow kom;}dow et kwayiytiy pop(y );}lay 
s(y)uway/. A statute is said to be by the grace of the 
king, when the king deigns to yield some portion of his 
royal rights for the good and quiet of his people. 
Statutum generaliter est intelligendum quando ver
ba statuti sunt specialia, ratio autem generalis 
/st;}t(y)uwt;}m jen;}reyl;}t;}r est intel;}jend;}m kwondow 
v;}rb;} st;}t(y)uwtay s�nt speshiyeyl(i)y;} reysh(iy)ow ot;}m 
jen;}reybs/. When the words of a statute are special, 
but the reason of it general, the statute is to be under
stood generally. 
Statutum sessionum /st;}t(y)uwt;}m ses(h)iyown;}m /. In 
old English law, the statute session; a meeting in every

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1418 
hundred of constables and householders, by custom, for 
the ordering of servants, and debating of differences 
between masters and servants, rating of wages, etc. 
Statutum speciale statuto speciali non derogat 
/st�t(y)uwt�m speshiyeyliy st�t(y)uwtow speshiyey
lay non dehr�g�t/. One special statute does not take 
from another special statute. 
Stay, v. To stop, arrest, or fOl;bear. To "stay" an order 
or decree means to hold it in abeyance, or refrain from 
enforcing it. 
Stay, n. A stopping; the act of arresting a judicial 
proceeding by the order of a court. Also that which 
holds, restrains, or supports. 
_11 stay is a suspension of the case or some designated 
proceedings within it. It is a kind of injunction with 
which a court freezes its proceedings at a particular 
point. It can be used to stop the prosecution of the 
� altogether, or to hold up only some phase of it, 
such as an execution about to be levied on a judgment. 
Automatic stay in bankruptcy. See Automatic stay. 
Stay laws. Acts of the legislature prescribing a stay of 
execution in certain cases, or a stay of foreclosure of 
mortgages, or closing the courts for a limited period, or 
providing that suits shall not be instituted until a cer
tain time after the cause of action arose, or otherwise 
suspending legal remedies; designed for the relief of 
debtors, in times of general distress or financial trouble. 
Stay of execution. The stopping or arresting of execu
tion on a judgment, that is, of the judgment-creditor's 
right to issue execution, for a limited period. This is 
given by statute in many jurisdictions, as a privilege to 
the debtor, usually on his furnishing bail for the debt, 
costs, and interest. Or it may take place by agreement 
of the parties. See e.g. Fed.R.C ivil P. 62. Term may 
also refer to the stopping of the execution of capital 
punishment, commonly to permit further appeals by 
defendant. See e.g. Fed.R.Crim.P. 38(a). 
Stay of proceedings. The temporary suspension of the 
regular order of proceedings in a cause, by direction or 
order of the court, usually to await the action of one of 
the parties in regard to some omitted step or some act 
which the court has required him to perform as inciden
tal to the suit; as where a nonresident plaintiff has been 
ruled to give security for costs. It is similar to an 
injunction with which a court freezes its proceedings at 
a particular point. It can be used to stop the prosecu
tion of the action altogether, or to hold up only some 
phase of it, such as an execution about to be levied on a 
judgment. See also Automatic stay. 
A "stay" does not reverse, annul, undo or suspend 
what already had been done or what is not specifically 
stayed nor pass on the merits of orders of the trial court, 
but merely suspends the time required for performance 
of the particular mandates stayed, to preserve a status 
quo pending appeal. Reed v. Rhodes, D.C.O hio, 472 
F.Supp. 603, 605. 
See Fed.R.Civil P. 62, "Stay of Proceedings to Enforce 
Judgment". See also Injunction; Restraining order. 
STEP·FATHER 
Steady course. A ship is on a "steady course," not only 
when her heading does not change, but whenever her 
future positions are certainly ascertainable from her 
present position and movements. Commonwealth & D0-
minion Line v. U. S., C.C.A.N.Y., 20 F.2d 729, 731. 
Steal. This term is commonly used in indictments for 
larceny ("take, steal, and carry away"), and denotes the 
commission of theft, that is, the felonious taking and 
carrying away of the personal property of another, and 
without right and without leave or consent of owner, 
and with intent to keep or make use wrongfully. U.S. v. 
Hill, C.A.Kan., 835 F.2d 759, 763. Or, it may denote the 
criminal taking of personal property either by larceny, 
embezzlement, or false pretenses. But, in popular usage 
"stealing" may include the unlawful appropriation of 
things which are not technically the subject of larceny, 
e.g., immovables. See also Larceny; Robbery; Shoplifting; 
Theft. 
Stealing children. See Kidnapping. 
Stealth /stelO/. The quality or condition of being secret 
or furtive. The act of stealing when the victim is 
unaware of the theft is stealing by stealth. Any secret, 
sly or clandestine act to avoid discovery and to gain 
entrance into or to remain within residence of another 
without permission. State v. Lane, 50 Ohio App.2d 41, 
361 N.E.2d 535, 540, 4 O.O.3d 24. 
Steerer. One who gains the confidence of the person 
intended to be fleeced and who may be said to steer or 
lead the victim to the place where the latter is to be 
robbed or swindled. 
Stellionataire. Fr. In French law, a party who fraudu
lently mortgages property to which he has no title. 
Stellionate /stely:meyt /. In civil law, a name given 
generally to all species of frauds committed in making 
contracts but particularly to the crime of aliening the 
same subject to different persons. 
Stellionatus /stely�neyt�s/. Lat. In the civil law, a 
general name for any kind of fraud not falling under 
any specific class. But the term is chiefly applied to 
fraud practiced in the sale or pledging of property; as, 
selling the same property to two different persons, sell
ing another's property as one's own, placing a second 
mortgage on property without disclosing the existence of 
the first, etc. 
Step. When used as prefix in conjunction with a degree 
of kinship, is repugnant to blood relationship, and is 
indicative of a relationship by affinity. 
Step-child. The child of one of the spouses by a former 
marriage. A child who has a parent by his natural 
parent's second marriage and has not been adopted by 
that parent. 
Step-down in basis. A reduction in the income tax 
basis of property. See also Step-up in basis. 
Step-father. The husband of one's mother by virtue of a 
marriage subsequent to that of which the person spoken 
of is the offspring.

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STEP-IN-THE-DARK RULE 
Step-in-the-dark rule. Such rule of contributory negli
gence is that one who enters a totally unfamiliar area in 
the darkness is not justified, in the absence of any 
special stress, in proceeding without first ascertaining 
whether there are any obstacles to his safe progress. 
Yoder v. Greenwald, Fla.App., 246 So.2d 148, 150. 
Step-mother. The wife of one's father by virtue of a 
marriage subsequent to that of which the person spoken 
of is the offspring. 
Step-parent. The mother or father of a child born 
during a previous marriage of the other parent and 
hence, not the natural parent of such child. 
Step-son. The son of one's wife by a former husband, or 
of one's husband by a former wife. 
Step-transaction approach. Method used by the Inter
nal Revenue Service to determine tax liability by dis
regarding one or more transactions of a taxpayer to 
arrive at the final result. The objective of the step
transaction approach is to review the substance and not 
just the form of a transaction in determining the tax 
liability of the individual or entity. 
Step-up in basis. An increase in the income tax basis of 
property. The classic step-up in basis occurs when a 
decedent dies owning appreciated property. The proper
ty is valued on the date of death or the alternate 
valuation date. The estate tax is based on the property 
values on the date elected; therefore the heirs receive 
property with a step-up in basis. 
Sterbreche, or strebrich. The breaking, obstructing, or 
straitening of a way. 
Stere I stir I stehr I. A French measure of solidity, used in 
measuring wood. It is a cubic meter. 
Sterility Ist:lril:ltiy/. Barrenness; unfruitfulness; inca
pacity to germinate or reproduce. 
Sterilization. The act or process by which one is ren
dered incapable of procreation as, for example, the act of 
tying the female Fallopian tubes or a vasectomy. Also, 
the act or process by which an article or instrument is 
rendered free of germs. 
Sterling. In English law, current or standard coin, espe
cially silver coin; a standard of coinage. 
Stet processus Istet pr:lses:ls/. An entry on the roll in 
the nature of a judgment of a direction that all further 
proceedings shall be stayed (i.e., that the process may 
stand), and it is one of the ways by which a suit may be 
terminated by an act of the party, as distinguished from 
a termination of it by judgment, which is the act of the 
court. It was used by the plaintiff when he wished to 
suspend the action without suffering a nonsuit. 
Stevedore. A person employed in loading and unloading 
vessels. 
Steward. A man appointed in the place or stead of 
another. A union official who represents other union 
employees in grievances with management and who 
oversees the carrying out of the union contract. 
1414 
Steward of all England. In old English law, an officer 
who was invested with various powers; among others, to 
preside on the trial of peers. 
Steward of a Manor. In old English law, an important 
officer who had the general management of all forensic 
matters connected with the manor of which he was 
steward. He stood in much the same relation to the 
lord of the manor as an under-sheriff did to the sheriff. 
Stews. Certain brothels anciently permitted in England, 
suppressed by Henry VIII. Also, breeding places for 
tame pheasants. 
Stickler. An arbitrator. An obstinate contender about 
anything. 
Stick up. To rob at the point of a gun; armed robbery. 
Stifling a prosecution. Agreeing, in consideration of 
receiving a pecuniary or other advantage, to abstain 
from prosecuting a person for an offense not giving rise 
to a civil remedy. 
Still. Any device used for separating alcoholic spirits 
from fermented substances. The word is sometimes 
applied to the whole apparatus for evaporation and 
condensation used in the manufacture of ardent spirits, 
but in the description of the parts of the apparatus it is 
applied merely to the vessel or retort used for boiling 
and evaporation of the liquid. 
Stillborn child. A child born dead or in such an early 
stage of pregnancy as to be incapable of living, though 
not actually dead at the time of birth. 
Stillicidium Istil:lsid(i)Y:lm/. Lat. In the civil law, the 
drip of water from the eaves of a house. The servitude 
stillicidii consists in the right to have the water drip 
from one's eaves upon the house or ground of another. 
The term "{lumen" designated the rain-water collected 
from the roof, and carried off by the gutters, and there is 
a similar easement of having it discharged upon the 
adjoining estate. 
Sting. An undercover police operation in which police 
pose as criminals to trap law violators. Compare Entrap
ment. 
Stint. In English law, limit; a limited number. Used as 
descriptive of a species of common. 
Stipend I stayp:lnd/. A salary; settled pay; fixed or 
regular payment. Offering made to clergyman. 
Stipendiary estates I st:lpend(i)yehriy I. Estates granted 
in return for services, generally of a military kind. 
Stipendiary magistrates. In English law, full time, 
paid magistrates; appointed in London and some other 
cities and boroughs, and having in general the powers 
and jurisdiction of justices of the peace. Appointed from 
barristers and solicitors of 7 years standing. See Jus
tices of the Peace Act, 1979, §§ 13-16. 
Stipendium Ist:lpend(i)Y:lm/. Lat. In the civil law, the 
pay of a soldier; wages; stipend.

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1415 
Stipes / staypiyz/. Lat. In old English law, stock; a 
stock; a source of descent or title. Communis stipes, the 
common stock. 
Stipital /stip�t�lI. Relating to stipes, roots, or stocks. 
See Stirpital. 
Stipulate. Arrange or settle definitely, as an agreement 
or covenant. See Stipulation. 
Stipulated damage. Liquidated damage (q.v .). 
Stipulatio /stipy�leysh(iy)ow/. Lat. In the Roman law, 
stipulatio was the verbal contract (verbis obligatio), and 
was the most solemn and formal of all the contracts in 
that system of jurisprudence. It was entered into by 
question and corresponding answer thereto, by the par
ties, both being present at the same time, and usually by 
such words as "spondes? spondeo, " "promittis? prom it
to, " and the like. 
Stipulatio aquiliana /stipy�leysh(iy)ow �kwiliyeyn�/. A 
particular application of the stipulatio, which was used 
to collect together into one verbal contract all the liabili
ties of every kind and quality of the debtor, with a view 
to their being released or discharged by an acceptilatio, 
that mode of discharge being applicable only to the 
verbal contract. 
Stipulatio juris /stipy:;)leysh(iy)ow jur:;)s/. A stipulation 
or agreement beforehand of a question of law or its 
applicability, though a court is not bound by a stipula
tion of erroneous law. However, the parties to a con
tract may stipulate as to the applicability of the law of a 
particular state or jurisdiction. 
Stipulation. A material condition, requirement, or arti
cle in an agreement. 
The name given to any agreement made by the attor
neys engaged on opposite sides of a cause (especially if in 
writing), regulating any matter incidental to the pro
ceedings or trial, which falls within their jurisdiction. 
Voluntary agreement between opposing counsel con
cerning disposition of some relevant point so as to obvi
ate need for proof or to narrow range of litigable issues. 
Arrington v. State, Fla., 233 So.2d 634, 636. An agree
ment, admission or confession made in a judicial pro
ceeding by the parties thereto or their attorneys. 
Bourne v. Atchison, T. & S. F. Ry. Co., 209 Kan. 511, 497 
P.2d 110, 114. Such are evidentiary devices used to 
simpl ify and expedite trials by dispensing with the need 
to prove formally uncontested factual issues. Paschen 
v. Ratliff City Trucking Co., Okl.App., 637 P.2d 591, 593. 
Stipulations made during the course of trial may 
involve jury of less than twelve (Fed.R.Civil P. 48), 
master's findings (Rule 53(e)(4» , dismissal of action (Rule 
41(a» , or discovery, see below. 
A recognizance of certain persons (called in the old 
law "fide jussors") in the nature of bail for the appear
ance of a defendant. 3 Bl.Comm. 108. 
See also Admission; Pre-trial conference; Proviso. 
Discovery. Unless the court orders otherwise, the par
ties may by written stipulation (1) provide that deposi
tions may be taken before any person, at any time or 
STOCK 
place, upon any notice, and in any manner and when. so 
taken may be used like other depositions, and (2) modIfy 
the procedures provided by these rules for other meth
ods of discovery, except that stipulations extending the 
time provided in Rules 33, 34, and 36 for responses to 
discovery may be made only with the approval of the 
court. Fed.R.Civil P. 29. 
Stipulator. In the civil law, the party who asked the 
question in the contract of stipulation; the other party, 
or he who answered, being called the "promissor." But, 
in a more general sense, the term was applied to both 
the parties. 
Stirpes /st�rpiyz/. Lat. Descents. The root-stem, or 
stock of a tree. Figuratively, it signifies in law that 
person from whom a family is descended, and also the 
kindred or family. Taking property by right of repre
sentation is called "succession per stirpes," in opposition 
to taking in one's own right, or as a principal, which is 
termed "taking per capita. " See also Per stirpes and 
Representation. 
Stirpital /stip�d�l/. Relating to stirpes, roots, or stocks. 
"Stirpital distribution" of property is distribution per 
stirpes; that is, by right of representation. 
Stock. The goods and wares of a merchant or trades
man, kept for sale and traffic. In a larger sense, the 
capital of a merchant or other person, including his 
merchandise, money, and credits, or, in other words, the 
entire property employed in business. See Inventory. 
Corporation Law 
The term is used in various senses. It may mean the 
capital or principal fund of a corporation or joint-stock 
company, formed by the contributions of subscribers or 
the sale of shares; the aggregate of a certain number of 
shares severally owned by the members or stockholders 
of the corporation or the proportional share of an indi
vidual stockholder; also the incorporeal property which 
is represented by the holding of a certificate of stock; 
and in a wider and more remote sense, the right of a 
shareholder to participate in the general management of 
the company and to share proportionally in its net 
profits or earnings or in the distribution of assets on 
dissolution. The term "stock" has also been held to 
embrace not only capital stock of a corporation but all 
corporate wealth and resources, subject to all corporate 
liabilities and obligations. 
"Stock" is distinguished from "bonds" and, ordinarily, 
from "debentures," in that it gives right of ownership in 
part of assets of corporation and right to interest in any 
surplus after payment of debt. "Stock" in a corporation 
is an equity, and it represents an ownership interest, 
and it is to be distinguished from obligations such as 
notes or bonds which are not equities and represent no 
ownership interest. U. S. v. Evans, C.A.Or., 375 F.2d 
730, 731. 
See also Certificate of stock; Discount shares; Equity 
security·; Par value; Registration of securities; . Securities; 
Security; Share of corporate stock.

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STOCK 
Classes and Types of Corporate Stock 
Preferred stock is a separate portion or class of the 
stock of a corporation, which is accorded, by the charter 
or by-laws, a preference or priority in respect to divi
dends, over the remainder of the stock of the corpora
tion, which in that case is called common stock. That is, 
holders of the preferred stock are entitled to receive 
dividends at a fixed annual rate, out of the net earnings 
or profits of the corporation, before any distribution of 
earnings is made to the common stock. If the earnings 
applicable to the payment of dividends are not more 
than sufficient for such fixed annual dividend, they will 
be entirely absorbed by the preferred stock. If they are 
more than sufficient for the purpose, the remainder may 
be given entirely to the common stock (which is the 
more usual custom) or such remainder may be distribut
ed pro rata to both classes of the stock, in which case the 
preferred stock is said to «<participate" with the com
mon. The fixed dividend on preferred stock may be 
«<cumulative" or «<non-cumulative ." In the former case, 
if the stipulated dividend on preferred stock is not 
earned or paid in any one year, it becomes a charge 
upon the surplus earnings of the next and succeeding 
years, and all such accumulated and unpaid dividends 
on the preferred stock must be paid off before the 
common stock is entitled to receive dividends. In the 
case of «<non-cumulative" preferred stock, its preference 
for any given year is extinguished by the failure to earn 
or pay its dividend in that year. If a corporation has no 
class of preferred stock, all its stock is common stock. 
The word ((common" in this connection signifies that all 
the holders of such stock are entitled to an equal pro 
rata division of profits or net earnings, if any there be, 
without any preference or priority among themselves. 
Deferred stock is rarely issued by American corpora
tions, though it is not uncommon in England. This kind 
of stock is distinguished by the fact that the payment of 
dividends upon it is expressly postponed until some 
other class of stock has received a dividend, or until 
some certain liability or obligation of the corporation is 
discharged. If there is a class of «<preferred" stock, the 
common stock may in this sense be said to be «<de_ 
ferred," and the term is sometimes used as equivalent to 
«<common" stock. But it is not impossible that a corpo
ration should have three classes of stock: (1) Preferred, 
(2) common, and (3) deferred; the latter class being 
postponed, in respect to participation in profits, until 
both the preferred and the common stock had received 
dividends at a fixed rate. 
Assented stock. Stock which an owner deposits with a 
third person in accordance with an agreement by which 
the owner voluntarily accepts a change in the securities 
of the corporation. 
Assessable stock. Stock which requires the owner to pay 
more than its cost if the needs of the corporation re
quire. 
Au thorized stock. That amount of stock which the 
corporate charter permits the corporation to issue. The 
shares described in the articles of incorporation which a 
corporation may issue. Modern corporate practice rec-
1416 
ommends authorization of more shares than it is cur
rently planned to issue. See also Authorized stock issue. 
Blue-chip stock. Stock of a listed company which has a 
high grade financial record. See Listed stock, below. 
Bonus stock. Stock given to an underwriter as compen
sation for services. Stock given to purchasers as an 
inducement. See also Bonus stock. 
Callable preferred stock. Preferred stock which may be 
called by the issuing corporation at a prestated price. 
Capital stock. See Capital (Capital stock). 
Common stock. Securities which represent an owner
ship interest in a corporation. If the company has also 
issued preferred stock, both common and preferred have 
ownership rights. The preferred normally is limited to 
a fixed dividend but has prior claim on dividends and, in 
the event of liquidation, assets. Claims of both common 
and preferred stockholders are junior to claims of bond
holders or other creditors of the company. Common 
stockholders assume the greater risk, but generally ex
ercise the greater control and may gain the greater 
reward in the form of dividends and capital apprecia
tion. The terms common stock and capital stock are 
often used interchangeably when the company has no 
preferred stock. See also Common stock. 
Control stock. That amount of capital stock which per
mits the owner to control the corporation. It is not 
necessarily a majority of the shares. 
Convertible stock. Stock which may be changed or con
verted into common stock. 
Cumulative preferred. A stock having a provision that if 
one or more dividends are omitted, the omitted divi
dends must be paid before dividends may be paid on the 
company's common stock. 
Cumulative stock. A type of stock on which unpaid 
dividends accumulate until paid. They must be paid 
totally before the common stockholders receive their 
dividends. See Cumulative preferred, above. 
Donated stock. Stock transferred to the corporation by 
the stockholders for resale. 
Floating stock. That part of a corporation's stock which 
is on the open market for speculation. Stock not yet 
bought by public holders. 
Growth stock. Stock purchased with a view towards 
appreciation in value rather than dividend income. 
Guaranteed stock. Usually preferred stock on which 
dividends are guaranteed by another company, under 
much the same circumstances as a bond is guaranteed. 
Guaranty stock. Stock in a savings and loan association 
in some states which yields all dividends to the holders 
after dividends to depositors or savers. 
Issued stock. Stock which has been authorized and 
actually sold to subscribers. It may include treasury 
stock. 
Letter stock. Stock received by a buyer who gives the 
seller a letter stating that he will hold such stock and

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1417 
not reoffer it to others. Such stock need not be reg
istered under the Securities Act of 1933. See also Letter 
stock. 
Listed stock. The stock of a company which is traded on 
a securities exchange, and for which a listing application 
and a registration statement, giving detailed informa
tion about the company and its operations, have been 
filed with the Securities and Exchange Commission, 
unless otherwise exempted, and with the exchange it
self. The various stock exchanges have different stan
dards for listing. 
Nonassessable stock. Stock which cannot be assessed 
(i.e. holder cannot be assessed) in the event of failure or 
insolvency of the corporation. Most all stock is nonas
sessable. 
Noncumulative preferred stock. Type of preferred stock 
which yields no dividend once the dividend is passed. 
Contrast Cumulative preferred, above. 
Noncumulative stock. A preferred stock on which un
paid dividends do not accrue. Omitted dividends are, as 
a rule, gone forever. 
Nonvoting stock. Stock to which no rights to vote at
tach. Such shares may be created in most states; in 
some states, however, nonvoting shares may be entitled 
to vote as a class on certain proposed changes adversely 
affecting that class as such. 
No par stock. Stock without par value but which repre
sents a proportionate share of the ownership of a corpo
ration based on the number of shares. Such shares are 
issued for the consideration designated by the board of 
directors; such consideration is allocated to stated capi
tal unless the directors or shareholders determine to 
allocate a portion to capital surplus. A corporation may 
have both par and no par value stock. 
Outstanding stock. Stock issued and in the hands of 
stockholders and such does not include treasury stock. 
Paid up stock. Stock for which full payment has been 
made to the corporation. 
Participation preferred stock. A preferred stock which 
is entitled to its stated dividend and, also, to additional 
dividends on a specified basis upon payment of dividends 
on the common stock. 
Participation stock. In general, stock which permits the 
holder to participate in the profits and surplus. 
Par value stock. Stock which originally had a fixed 
value arrived at by dividing the total value of capital 
stock by the number of shares to be issued. The par 
value does not bear a necessary relation to the actual 
value of the stock be,cause of the part which surplus 
plays in valuation. See also Par value. 
Penny stock. Generally, highly speculative stock which 
can be purchased for under a dollar a share. 
Preferred stock. A class of stock with a claim on the 
company's earnings before payment may be made on the 
common stock and usually entitled to priority over com
mon stock if company liquidates. Usually entitled to 
STOCK 
dividends at a specified rate-when declared by the 
Board of Directors and before payment of a dividend on 
the common stock-depending upon the terms of the 
issue. 
Premium stock. Stock which carries a premium for 
trading as in the case of short selling. 
Redeemable stock. Generally preferred stock which can 
be called in and retired. It is redeemable at par. See 
also Redeemable stock. 
Registered stock. Stock registered under federal Securi
ties Act. See also Listed stock, above. 
Restricted stock. Stock to which is attached restrictions 
as to transferability. 
Stock options. See Stock option, below. 
Stock redemption. See Stock redemption, below. 
Stock rights. See Stock rights, below. 
Stock split. See Stock split, below. 
Subscribed stock. See that title. 
Treasury stock. Stock issued by a company but later 
re-acquired. It may be held in the company's treasury 
indefinitely, reissued to the public, or retired. Treasury 
stock receives no dividends and has no vote while held 
by the company. The Revised Model Business Corpora
tion Act and the statutes of several states have eliminat
ed the concept of treasury shares. 
Unissued stock. Stock authorized by the corporate char
ter but not yet distributed to stockholders and subscrib
ers. 
Unlisted stock. Stock not listed on one of the stock 
exchanges but traded over the counter or privately. 
Voting stock. Stock which carries the right to vote for 
directors, etc. See also Voting stock. 
Watered stock. Stock issued for inadequate considera
tion. See also Watered stock. 
Law of Descent 
The term is used, metaphorically, to denote the origi
nal progenitor of a family, or the ancestor from whom 
the persons in question are all descended; such descend
ants being called "branches." Matter of Samson's Es
tate, 139 Misc. 490, 249 N.Y.S. 79, 83. 
Generally 
Capital stock. See Capital (Capital stock). 
Certificate of stock. See Certificate; Share certificate. 
Exchange of stock. See Exchange. 
Public stocks. The funded or bonded debt of a govern
ment or state. 
Stock association. A joint-stock company (q.v.). 
Stock attribution. See Attribution.

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STOCK 
Stock bailout. A species of stock redemption in the 
form of a preferred stock dividend formerly tax free, but 
now governed by I.R.C. § 306. 
Stockbroker. One who buys or sells stock as agent of 
another. Allen v. Todd, 12 Cal.App.2d 654, 90 Cal.Rptr. 
807, 810. See also Broker. 
Stock certificate. See Certificate of stock; Share certifi
cate. 
Stock control. Type of inventory management by which 
a business maintains perpetual records of its inventory. 
Stock corporation. A corporation having a capital stock 
divided into shares, and which is authorized by law to 
distribute to the holders thereof dividends or shares of 
the surplus profits of the corporation. 
Stock dividend. Distributing stock as a dividend. It is 
a proportional distribution of shares without payment of 
consideration to existing shareholders. If the dividend 
is common stock declared on common stock, the only 
result other than to reduce the value of each share of 
common and to maintain the proportionate interest of 
each stockholder is to transfer part of surplus to the 
stock account. To be distinguished from a cash dividend 
or a stock split (see below ). See also Dividend. 
Stock exchange. The place at which shares of stock are 
bought and sold. Any organization, association, or 
group of persons, whether incorporated or unincorporat
ed, which constitutes, maintains, or provides a market
place or facilities for bringing together purchasers and 
sellers of securities. See Stock market, below. 
Stock insurance company. An insurance company 
whose shares are held by the public and which pays 
dividends in contrast to a mutual insurance company 
whose assets are owned by the policyholders who receive 
dividends when available. 
Stock in trade. The inventory carried by a retail busi
ness for sale in the ordinary course of business. Also, 
the tools and equipment owned and used by a trades
man. 
Stock jobber. A dealer in stock; one who buys and sells 
stock on his own account on speculation. 
Stock law district. A district in which stock is by law 
prohibited from running at large. 
Stock life insurance company. One in which capital 
stock investment is made by subscribers to stock, and 
business is thereafter conducted by board of directors 
elected by its stockholders, and, subject to statutes, 
distribution of earnings or profits, as between stockhold
ers and policyholders, is determined by board of di
rectors. Atlantic Life Ins. Co. v. Moncure, D.C.Va., 35 
F.2d 360, 362. 
Stock market. The organized trading of securities 
through the various stock exchanges and over-the-coun
ter markets. The largest stock market in the United 
States is the New York Stock Exchange. See also Over
the-counter market. 
1418 
Stock note. The term has no technical meaning, and 
may as well apply to a note given on the sale of stock 
which the bank had purchased or taken in the payment 
of doubtful debts as to a note given on account of an 
original subscription to stock. 
Stock option. The right to buy a designated stock, if 
holder of option chooses, at any time within specified 
period, at determinable price, or to sell designated stock 
within an agreed period at determinable price. Richard
son v. Richardson, 280 Ark. 498, 659 S.W.2d 510, 514. 
In addition to its use for investment purposes, such 
options are often granted to management and key em
ployees as a form of incentive compensation. The term 
"stock option" is used when the right is issued other 
than pro rata to all existing shareholders. When so 
issued to all existing stockholders, the option is called a 
"stock right." For "restricted," "qualified," and "non
qualified" stock options, see Option. See also Call; Incen
tive stock option; Put; Put option; Warrant. 
Stock option contract. A negotiable instrument which 
gives the holder the right to buy or sell a certain 
number of shares of the corporation's stock within a 
fixed period of time for a certain price. See also Option. 
Stock power. A power of attorney permitting a person 
other than the owner of the stock to transfer legally the 
title of ownership to a third party. 
Stock purchase plan. A plan by which employees of a 
corporation are allowed to purchase shares of corporate 
stock. 
Stock redemption. A partial or complete liquidation of 
corporate stock by the corporation with varying tax 
consequences depending upon the type of redemption. 
It generally consists in the buy back by the corporation 
of its own stock. The redemption of the stock of a 
shareholder by the issuing corporation is generally 
treated as a sale or exchange of the stock unless the 
redemption is a dividend. I.R.C. §§ 301 and 302. A 
public corporation might redeem its stock for the pur
pose of "going private", or as a defense to a hostile 
takeover attempt. See also Stock bailout, above. 
Stock repurchase plan. A program by which a corpora
tion buys back its own shares in the open market. It is 
usually done when the corporation believes its shares 
are undervalued by the market. 
Stock rights. The privilege to subscribe to new stock 
issues or to purchase stock. Usually, rights are con
tained in securities called warrants and the warrants 
can be sold to others. A right to purchase stock issued 
pro rata to existing shareholders. Sometimes issued on 
a "when, as, and ir' basis, that is, the holder can buy the 
stock when it is issued, on such basis or of such kind as 
is issued, and if it is issued. 
A document (i.e. negotiable certificate) which gives an 
existing stockholder the privilege of buying additional 
stock of a corporation. The right has a value of its own 
because generally the holder may buy such additional 
stock at a price less than the market quotation. Rights 
are traded in the market. A stock right differs from a

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1419 
warrant to the extent that a right gives a privilege of 
buying additional stock of the same kind whereas a 
warrant may permit a preferred stockholder to buy 
common stock. 
See also Preemptive right; Warrant (Stock warrants). 
Stock split. The issuance of a number of new shares in 
exchange for each old share held by a stockholder result
ing in a proportional change in the number of shares 
owned by each stockholder. Share splits, or stock splits, 
may be (a) split-ups, where one share is split into a 
larger number of shares, or (b) reverse splits, or split
downs, where a number of shares are combined to form 
a smaller number of shares. Share splits involve no 
transfer from surplus to stated capital or any changes 
except adjustments in par value or stated value per 
share, when applicable, so that the same stated capital 
which represented the issued shares before the split 
properly represents the changed number of shares after 
the split. A split-up requires not only board of directors 
action, but often requires advance shareholder approval 
as well when the articles of incorporation must be 
amended to change the par value or stated value of 
shares and also, when necessary, to authorize additional 
shares. The usual accounting treatment for a share 
split is to do nothing except to reflect the different 
(usually increased) number of issued shares and any 
changes in par or stated value. 
A common purpose of a stock split is to reduce the per 
share market price in order to make for wider trading 
and a resulting higher per share value (i.e. price). 
See also Reverse stock split. 
Stock subscription. An agreement (by a subscriber) with 
the corporation to purchase its stock. See Stock rights, 
above. See also Subscribed stock; Subscriber; Subscrip
tion. 
Stock swap. In corporate reorganization, an exchange 
of stock in one corporation for the stock of another 
corporation. 
Stock transfer agent. See Transfer agent. 
Stock transfer tax. A tax imposed on the transfer of 
stock and based on the market value of the stock. 
Stock warrant. A certificate evidencing the right to buy 
shares of stock and commonly attached to preferred 
stock and bonds. It generally has an expiration date 
before which the warrant· must be exercised. See also 
Warrant. 
Tainted stock. Stock owned by a person who is disqual
ified for some reason from serving as a plaintiff in a 
derivative action. The shares are "tainted" because for 
policy reasons a good faith transferee of such shares will 
also be disqualified from serving as a plaintiff. 
Stockholder (Shareholder). A person who owns shares 
of stock in a corporation or joint-stock company. Re
ferred to as "Shareholder" under Rev. Model Bus.Corp. 
Act and a number of state statutes, and defined in 
Model Act (§ 1.40) as "the person in whose name shares 
are registered in the records of a corporation or the 
STOLEN 
beneficial owner of shares to the extent of the rights 
granted by a nominee certificate on file with a corpora
tion." See also Beneficial holders of securities; Majority 
stockholder; Minority stockholder. 
Watered stock. See that title. 
Stockholder's derivative action. An action by a stock
holder for purpose of sustaining in his own name a right 
of action existing in corporation itself, where corpora
tion would be an appropriate plaintiff. It is based upon 
two distinct wrongs: The act whereby corporation was 
caused to suffer damage, and act of corporation itself in 
refusing to redress such act. Procedure in such actions 
is governed by Fed.R.Civil P. 23.1. 
Stockholder's equity. The total of a firm's stock at par, 
contributed capital in excess of par, and retained earn
ings accounts summarized on the balance sheet. It is 
sometimes called the book value of the firm, owners' 
equity, or net worth. 
Stockholder's liability. Phrase is frequently employed 
to denote stockholder's statutory, added or double liabili
ty for corporation's debts, notwithstanding full payment 
for stock, but is often employed where stockholder, 
agreeing to pay full par value of stock, obtained stock 
certificate before complete payment or where stock, only 
partly paid for, is intentionally issued by corporation as 
fully paid up and all or part of purported consideration 
therefor is entirely fictitious. 
Stockholders' representative action. An action 
brought or maintained by a stockholder in behalf of 
himself and all others similarly situated. See also 
Stockh older's derivative action. 
Stock insurance company. Also known as a "joint 
stock insurance compan y," it is an insurance company 
that has issued capital stock and which is controlled by 
stockholders who take the profits. It may be distin
guished from a "mutual insurance company" which is 
owned by policy holders. National Chiropractic Insur
ance Company v. United States, D.C. lowa, 365 F.Supp. 
971, 972. See also Mutual insurance company. 
Stocks. A machine consisting of two pieces of timber, 
arranged to be fastened together, and holding fast the 
legs and/or arms of a person placed in it. This was an 
ancient method of punishment. See also Stock. 
Stolen. Acquired, or possessed, as a result of some 
wrongful or dishonest act or taking, whereby a person 
willfully obtains or retains possession of property which 
belongs to another, without or beyond any permission 
given, and with the intent to deprive the owner of the 
benefit of ownership (or possession) permanently. 
The word "stolen" as used in the crime of interstate 
transportation of stolen motor vehicles includes all 
wrongful and dishonest takings of motor vehicles with 
the intent to deprive the owner of the rights and bene
fits of ownership, regardless of whether theft constitutes 
common-law larceny; and felonious taking may be ef
fected by diverse means known to both common and 
statutory law, such as larceny, embezzlement, false pre
tenses, larceny by trick and other types of wrongful

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STOLEN 
acquisition. Lake v. U. S., C.A.Colo., 338 F.2d 787, 788. 
It is not necessary that the taking of the vehicle be 
unlawful. Even if possession of the vehicle is lawfully 
acquired, the vehicle will be deemed "stolen" if the 
defendant thereafter forms the intent to deprive the 
owner of the rights and benefits of ownership, and 
converts the vehicle to his own use. United States v. 
Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 
430. 
See also Larceny; Receiving stolen goods or property; 
Robbery; Theft. 
Stop. Within statutes requiring a motorist striking a 
person with automobile to stop, requires a definite cessa
tion of movement for a sufficient length of time for a 
person of ordinary powers of observation to fully under
stand the surroundings of the accident. Moore v. State, 
140 Tex.Cr.R. 482, 145 S.W.2d 887, 888. 
"Stop" occurs when police officer restrains person's 
liberty by physical force or show of authority. State v. 
Butkovich, 87 Or.App. 587, 743 P.2d 752, 753. "Stop," 
within term stop and frisk, is temporary restraint of 
person's freedom to walk away and is a permissible 
seizure within Fourth Amendment dimensions when 
such person is suspected of being involved in past, 
present or pending criminal activity. Terry v. Ohio, 392 
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Anony
mous (197 1-20), 6 Conn.Cir. 583, 280 A.2d 816, 818. See 
also Stop and frisk. 
Stop and frisk. The situation where police officers who 
are suspicious of an individual run their hands lightly 
over the suspect's outer garments to determine if the 
person is carrying a concealed weapon. Also called a 
"patdown" or "threshold inquiry," a stop and frisk is 
intended to stop short of any activity that could be 
considered a violation of Fourth Amendment rights. 
A police officer has the right to stop and pat down a 
person suspected of contemplating the commission of a 
crime. Reasonable suspicion which is sufficient for stop 
and frisk is more than a mere hunch but less than 
probable cause. U.S. v. Sokolow, 109 S.Ct. 1581, 104 
L.Ed.2d 1. The scope of the search must be strictly tied 
to and justified by the circumstances which rendered the 
initiation of the stop justified. Terry v. Ohio, 392 U.S. 1, 
88 S.Ct. 1868, 20 L.Ed.2d 889. See Frisk; Investigatory 
stop; Stop. 
Stop-limit order. In securities trading, a stop order in 
which a specific price is set below which the stock may 
not be sold and above which it may not be purchased. 
Stop-loss order. An order given to a stockbroker to buy 
or sell certain securities when the market reaches a 
particular price. 
Stop notice statute. An alternative to the mechanics' 
lien remedy that allows contractors, suppliers and work
ers to make and enforce a claim against the construction 
lender, and in some instances, the owner, for a portion 
of the undisbursed construction loan proceeds. See also 
Mechanics' lien. 
Stop order. An order to buy securities at a price above 
or sell at a price below the current market. Stop buy 
1420 
orders are generally used to limit loss or protect unreal
ized profits on a short sale. Stop sell orders are general
ly used to protect unrealized profits or limit loss on a 
holding. A stop order becomes a market order when the 
stock sells at or beyond the specified price and, thus, 
may not necessarily be executed at that price. See also 
Stop payment order. 
Stoppage. In the civil law, compensation or set-off. 
Stoppage in transit /st6p:;)j in trrenz:;)t(y). The act by 
which the unpaid vendor of goods stops their progress 
and resumes possession of them, while they are in 
course of transit from him to the purchaser, and not yet 
actually delivered to the latter. The right of stoppage 
in transitu is that which the vendor has, when he sells 
goods on credit to another, of resuming the possession of 
the goods while they are in the possession of a carrier or 
middle-man, in the transit to the consignee or vendee, 
and before they arrive into their actual possession, or 
the destination he has appointed for them on their 
becoming bankrupt and insolvent. The right which 
arises to an unpaid vendor to resume the possession, 
with which he has parted, of goods sold upon credit, 
before they come into the possession of a buyer who has 
become insolvent, bankrupt, or pecuniarily embarrassed. 
See U.C.C. § 2-705(1). 
Stop payment order. A customer's demand to a payor 
bank that the bank dishonor a check payable for the 
customer's account. See U.C.C. § 4-403. 
Stop sign. A legally erected and mainta ined traffic 
signal requiring all traffic to stop before entering into or 
crossing an intersection. Sweet v. Awtrey, 70 Ga.App. 
334, 28 S.E.2d 154, 161. 
Storage. Safekeeping of goods in a warehouse or other 
depository. Lincoln Sav. Bank of Brooklyn v. Brown, 
Em.App., 137 F.2d 228, 230, 231. See also Bailment; 
Warehouse; Warehouse man; Warehouse system. 
Store, v. To keep merchandise for safe custody, to be 
delivered in the same condition as when received, where 
the safe-keeping is the principal object of deposit, and 
not the consumption or sale. 
Store, n. Any place where goods are deposited and sold 
by one engaged in buying and selling them. 
Public store. A government warehouse, maintained for 
certain administrative purposes, such as the keeping of 
military supplies, the storing of imported goods under 
bonds to pay duty, etc. 
Stores. The supplies of different articles provided for 
the subsistence and accommodation of a ship's crew and 
passengers. 
Storehouse. A structure in which things are stored; e.g. 
a building for the storing of grain, foodstuffs, or goods of 
any kind. A magazine; a repository; a warehouse; a 
store. 
Stowage. In maritime law, the storing, packing, or 
arranging of the cargo in a ship, in such a manner as to

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1421 
protect the goods from friction, bruising, or damage 
from leakage. 
Money paid for a room where goods are laid; housage. 
Stowaway. One who conceals himself aboard an out-go
ing vessel or aircraft for the purpose of obtaining free 
passage. See 18 V.S.C.A. § 2199. 
Stowe. In old English law, a valley. 
Straddle. A strategy consisting of the combination of an 
equal number of put options and call options on the 
same underlying share, index, or commodity future. A 
straddle is a type of hedge. In stockbrokers' parlance 
the term means the double option position of a "put" 
and a "call" in the same underlying stock, and secures 
to the holder the right to demand of the seller at a 
certain price within a certain time a certain number of 
shares of specified stock, or to require him to take, at 
the same price within the same time, the same shares of 
stock. See Call; Option; Put option. Compare Hedging. 
Straight-line depreciation. See Depreciation. 
Stramineus homo / str;}miniy;}s h6wmow /. L. Lat. A 
man of straw, one of no substance, put forward as bail or 
surety. 
Strand. A shore or bank of the sea or a river. 
Stranding. In maritime law, the drifting, driving, or 
running aground of a ship on a shore or strand. Acci
dental stranding takes place where the ship is driven on 
shore by the winds and waves. Voluntary stranding 
takes place where the ship is run on shore either to 
preserve her from a worse fate or for some fraudulent 
purpose. 
Stranger. As used with reference to the subject of 
subrogation, one who, in no event resulting from the 
existing state of affairs, can become liable for the debt, 
and whose property is not charged with the payment 
thereof and cannot be sold therefor. See also Strangers. 
Stranger in blood. Any person not within the consider
ation of natural love and affection arising from relation
ship. 
Strangers. By this term is intended third persons gener
ally. In its general legal signification the term is op
posed to the word "privy." Those who are in no way 
parties to a covenant or transaction, nor bound by it, are 
said to be strangers to the covenant or transaction. See 
also Stranger. 
Stratagem / strli!t;}j;}m/. A deception either by words or 
actions, in times of war, in order to obtain an advantage 
over an enemy. 
Stratocracy / str;}t6kr;}siy / . A military government; 
government by military chiefs of an army. 
Strator /streyt;}r/. In old English law, a surveyor of the 
highways. 
Straw bail. See Bail. 
Straw man or party. A "front"; a third party who is 
put up in name only to take part in a transaction. 
Nominal party to a transaction; one who acts as an 
STREET NAME 
agent for another for the purpose of taking title to real 
property and executing whatever documents and instru
ments the principal may direct respecting the property. 
Person who purchases property for another to conceal 
identity of real purchaser, or to accomplish some pur
pose otherwise not allowed. 
Stray. See Estray. 
Stream. A watercourse having a source and terminus, 
banks, and channel, through which waters flow at least 
periodically, and it usually empties into other streams, 
lakes, or the ocean, but it does not lose its character as a 
watercourse even though it may break up and disap
pear. Southern Pac. Co. v. Proebstel, 61 Ariz. 412, 150 
P.2d 81, 83. A river, brook, or rivulet; anything in fact 
that is liquid and flows in a line or course. A current of 
water. A body of water having a continuous flow in one 
direction. It consists of a bed, banks, and watercourse. 
St. Paul Fire & Marine Ins. Co. v. Carroll, Tex.Civ.App., 
106 S.W.2d 757, 758. See also Water course. 
Private stream. A non-navigable creek or water-course, 
the bed or channel of which is exclusively owned by a 
private individual. 
Stream of commerce. Term used to describe goods 
which remain in interstate commerce though held with
in a state for a short period of time. If such goods 
remain in the stream of commerce, they are not subject 
to local taxation. 
In Commerce Clause analysis, local activities which 
are part of the current or stream of interstate commerce 
are considered part of the interstate movement. Con
gress can regulate such local incidents directly under its 
commerce power. 
Street. An urban way or thoroughfare; a road or public 
way in a city, town, or village, generally paved, and 
lined or intended to be lined by houses on each side. It 
includes all urban ways which can be and are generally 
used for travel, but does not normally include service 
entrances or driveways leading off from the street onto 
adjoining premises. Hill & Combs v. First Nat. Bank of 
San Angelo, Tex., C.C.A.Tex., 139 F.2d 740, 743. 
Any street, avenue, boulevard, road, parkway, drive or 
other way (1) which is an existing state, county or 
municipal roadway, or (2) which is shown upon a plat 
heretofore approved pursuant to law, or (3) which is 
approved by official action or (4) which is shown on a 
plat duly filed and recorded in the office of the county 
recording officer prior to the appointment of a planning 
board and the grant to such board of the power to 
review plats; and includes the land between the street 
lines, whether improved or unimproved, and may com
prise pavement, shoulders, gutters, curbs, sidewalks, 
parking areas and other areas within the street lines. 
See also Ancient street. 
Street name. Securities held in the name of a broker 
instead of his customer's name are said to be carried in 
a "street name." This occurs when the, securities have 
been bought on margin or when the customer wishes the 
security to be held by the broker. The name of a broker

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STREET NAME 
or bank appearing on a corporate security with blank 
endorsement by the broker or bank. The security can 
then be transferred merely by delivery since the en
dorsement is well known. Street name is used for 
convenience or to shield identity of the true owner. 
Strepitus judicialis /strep�t�s juwdishiyeyl�s/. Turbu
lent conduct in a court of justice. 
Stria /stray�/. Curved, crooked and intermittent gouges, 
of irregular depth and width and rough definition, of 
certain rock surface, sometimes due to abrasions by 
icebergs. A furrow, channel or hollow; depression, rut, 
wrinkle, concave, cup, pocket, dimple. 
Strict. Exact; accurate; precise; undeviating; governed 
or governing by exact rules. 
As to strict Settlement, see that title. 
Strict construction. A close or rigid reading and inter
pretation of a law. It is said that criminal statutes must 
be strictly construed. Rule of "strict construction" has 
no definite or precise meaning, has only relative applica
tion, is not opposite of liberal construction, and does not 
require such strained or narrow interpretation of lan
guage as to defeat object of statute. Southwestern Bell 
Tel. Co. v. Newingham, Mo.App., 386 S.W.2d 663, 665. 
Rule of "strict construction" means that criminal stat
ute will not be enlarged by implication or intendment 
beyond fair meaning of language used, or what their 
terms reasonably justify, and will not be held to include 
offenses and persons other than those which are clearly 
described and provided for, although court in interpret
ing and employing particular statutes may think legisla
ture should have made them more comprehensive. Mat
thews v. Powers, Okl.Cr., 425 P.2d 479, 482. "Strict 
construction of a statute" is that which refuses to ex
pand the law by implications or equitable considera
tions, but confines its operation to cases which are 
clearly within the letter of the statute as well as within 
its spirit or reason, resolving all reasonable doubts 
against applicability of statute to particular case. Kyr
itsis v. Fenny, 66 Misc.2d 329, 320 N.Y.S.2d 702, 704. 
See also Construction; Strictly construed. 
Strict foreclosure. See Foreclosure. 
Stricti juris / striktay jur�s/. Lat. Of strict right or 
law; according to strict law. A license is a thing stricti 
juris; a privilege which a man does not possess by his 
own right, but it is conceded to him as an indulgence, 
and therefore it is to be strictly observed. 
, 
Strictissimi juris / striktis�may jur�s/. Lat. Of the 
strictest right or law. Licenses being matter of special 
indulgence, the application of them was formerly stric
tissimi juris. 
Strict liability. Liability without fault. Goodwin v. 
Reilley, 1 Dist., 176 Cal.App.3d 86, 221 Cal.Rptr. 374, 
376. A concept applied by the courts in product liability 
cases in which seller is liable for any and all defective or 
hazardous products which unduly threaten a consumer's 
personal safety. This doctrine poses strict liability on 
one who sells product in defective condition unreason-
1422 
ably dangerous to user or consumer for harm caused to 
ultimate user or consumer if seller is engaged in busi
ness of selling such product, and product is expected to 
and does reach user or consumer without substantial 
change in condition in which it is sold. Davis v. Gibson 
Products Co., Tex.Civ.App., 505 S.W.2d 682, 688. 
Concept of strict liability in tort is founded on the 
premise that when manufacturer presents his goods to 
the public for sale, he represents they are suitable for 
their intended use, and to invoke such doctrine it is 
essential to prove that the product was defective when 
placed in the stream of commerce. Herbstman v. East
man Kodak Co., 68 N.J. 1, 342 A.2d 181, 184. 
(1) One who sells any product in a defective condition 
unreasonably dangerous to the user or consumer or to 
his property is subject to liability for physical harm 
thereby caused to the ultimate user or consumer, or to 
his property, if (a) the seller is engaged in the business 
of selling such a product, and (b) it is expected to and 
does reach the user or consumer without substantial 
change in the condition in which it is sold. (2) The rule 
stated in Subsection (1) applies although (a) the seller 
has exercised all possible care in the preparation and 
sale of his product, and (b) the user or consumer has not 
bought the product from or entered into any contractual 
relation with the seller. Restatement, Second, Torts, 
§ 402A. 
See also Product liability; Warranty. 
Strict liability crimes. Unla wful acts whose elements 
do not contain the need for criminal intent or mens rea. 
These crimes are usually acts that endanger the public 
welfare, such as illegal dumping of toxic wastes. State 
v. Lucero, 87 N.M. 242, 531 P.2d 1215, 1218. 
Strictly / striktliy /. A strict manner; closely, precisely, 
rigorously; stringently; positively. 
Strictly construed. Requirement that a penal statute 
be strictly construed means that the court will not 
extend punishment to cases not plainly within the lan
guage used, but at the same time such statutes are to be 
fairly and reasonably construed, and will not be given 
such a narrow and strained construction as to exclude 
from their operation cases plainly within their scope 
and meaning. See also Strict construction. 
Strictly ministerial duty. One that is absolute and 
imperative, requiring neither the exercise of official 
discretion nor judgment. 
Stricto jure /striktow juriy/. Lat. In strict law. 
Strict scrutiny test. Under this test for determining if 
there has been a denial of equal protection, burden is on 
government to establish necessity of the statutory classi
fication. Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 
451, 454. Measure which is found to affect adversely a 
fundamental right will be subject to "strict scrutiny" 
test which requires state to establish that it has compel
ling interest justifying the law and that distinctions 
created by law are necessary to further some govern
mental purpose. In re Valenti, 2 Dist., 178 C.A.3d 470, 
224 Cal.Rptr. 10, 12.

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1423 
Strictum jus /strikt�m j�s/. Lat. Strict right or law; 
the rigor of the law as distinguished from equity. 
Strike. The act of quitting work by a body of workers 
for the purpose of coercing their employer to accede to 
some demand they have made upon him, and which he 
has refused. Jeffery-De Witt Insulator Co. v. N. L. R. B., 
C.C.A.4, 91 F.2d 134, 138. A combination to obtain 
higher wages, shorter hours of employment, better work
ing conditions or some other concession from employer 
by the employees stopping work at a preconcerted time, 
and it involves a combination of persons and not a single 
individual. A cessation of work by employees as a 
means of enforcing compliance with some demand upon 
the employer. People v. Tepel, Mag.Ct., 3 N.Y.S.2d 779, 
781. A combined effort among workers to compel their 
employer to the concession of a certain demand, by 
preventing the conduct of his business until compliance 
with the demand. 
The term "strike" includes any strike or other con
certed stoppage of work by employees (including a stop
page by reason of the expiration of a collective-bargain
ing agreement) and any concerted slow-down or other 
concerted interruption of operations by employees. La
bor Management Relations Act, § 501(2). 
See also No-strike clause; Rent strike; Slowdown; Wild
cat strike. Compare Lockout. 
Economic strike. A cessation of work by employees to 
enforce economic demands upon the employer in con
trast to a strike caused by an unfair labor charge. 
General strike. Cessation of work by employees effective 
throughout an entire industry or country. 
Jurisdictional strike. Cessation of work as result of 
dispute by members of one union or craft against mem
bers of another union or craft as to assignment of work. 
Secondary strike. Cessation of work by union members 
of one employer who has business dealings with another 
employer whose employees are on strike. 
Sit-down strike. Cessation of work by employees who do 
not leave employer's premises but who refuse to work. 
Sympathy strike. A strike in which a union strikes not 
to gain concessions for itself, but to aid another union's 
objectives. A sympathy strike involves two unions; one 
is striking to force some concession from the employer; 
the other strikes in sympathy with the first's objectives. 
Sympathy strikes are a common manifestation of tradi
tional union solidarity. 
Wildcat strike. Cessation of work by group of employees 
without authorization of union officials. 
Strikebreaker. One who takes the place of workman 
who has left his work in an effort to force the striking 
employee to agree to demands of employer. See also 
Scab. 
Strike off. In common parlance, and in the language of 
the auction-room, property is understood to be "struck 
off' or "knocked down," when the auctioneer, by the fall 
of his hammer, or by any other audible or visible an
nouncement, signifies to the bidder that he is entitled to 
STRUCK JURY 
the property on paying the amount of his bid, according 
to the terms of the sale. 
A court is said to "strike off' a case when it directs 
the removal of the case from the record or docket, as 
being one over which it has no jurisdiction and no power 
to hear and determine it. 
Strike suits. Shareholder derivative action begun with 
hope of winning large attorney fees or private settle
ments, and with no intention of benefiting corporation 
on behalf of which suit is theoretically brought. 
Striking a jury. The selecting or nominating a jury out 
of the whole number returned as jurors on the panel. It 
is especially used of the selection of a special jury, where 
a panel is prepared by the proper officer, and the par
ties, in turn, strike off a certain number of names, until 
the list is reduced to twelve. A jury thus chosen is 
called a "struck jury." 
Striking off the roll. The disbarring of an attorney. 
Striking price. Price at which an option (e.g., to pur
chase stock) is exercised. The price at which named 
stock can be put or called is ordinarily the market price 
when option is written and is termed the "striking 
price". Reinach v. C. I. R., C.A.N.Y., 373 F.2d 900, 901. 
Strip. The act of spoiling or unlawfully taking away 
anything from the land, by the tenant for life or years, 
or by one holding an estate in the land less than the 
entire fee. 
Separating coupons from corpus of bonds, which, in 
turn, are sold separately. 
Strong. Cogent, powerful, forcible, forceful. Wright v. 
Austin, Tex.Civ.App., 175 S.W.2d 281, 283. See also 
Sound. 
Strong hand. The words "with strong hand" imply a 
degree of criminal force, whereas the words vi et armis 
("with force and arms") are mere formal words in the 
action of trespass, and the plaintiff is not bound to prove 
any force. The statutes relating to forcible entries use 
the words "with a strong hand" as describing that 
degree of force which makes an entry or detainer of 
lands criminal. 
Strongly corroborated. A degree of corroboration 
amounting to corroboration from independent facts and 
circumstances which is clear and satisfactory to the 
court and jury. Wright v. Austin, Tex.Civ.App., 175 
S.W.2d 281, 283. See also Corroborating evidence. 
Struck. In common law pleading, a word essential in an 
indictment for murder, when the death arose from any 
wounding, beating, or bruising. 
Struck jury. A special jury. See also Striking a jury. 
Structural alteration or change. One that affects a 
vital and substantial portion of a thing; that changes its 
characteristic appearance, the fundamental purpose of 
its erection, and the uses contemplated. One that is 
extraordinary in scope and effect, or unusual in expendi
ture.

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STRUCTURE 
Structure. Any construction, or any production or piece 
of work artificially built up or composed of parts joined 
together in some definite manner. That which is built 
or constructed; an edifice or building of any kind. 
A combination of materials to form a construction for 
occupancy, use or ornamentation whether installed on, 
above, or below the surface of a parcel of land. 
Structured settlement. See Settlement. 
Strumpet /str�mp�t/. A whore, harlot, or courtesan. 
This word was anciently used for an addition. It occurs 
as an addition to the name of a woman in a return made 
by a jury in the sixth year of Henry V. 
Stuff gown. In England, the professional robe worn by 
junior barristers of the outer bar; viz., those who have 
not been admitted to the rank of King's Counsel. 
Stultify /st�lt�fay/. To make one out mentally incapaci
tated for the performance of an act. 
Stultiloquium /st�lt�lowkwiy�m /. Lat. In old English 
law, vicious pleading, for which a fine was imposed by 
King John, supposed to be the origin of the fines for 
beau-pleader. 
Stumpage. The sum agreed to be paid to an owner of 
land for trees standing (or lying) upon his land, the 
purchaser being permitted to enter upon the land and to 
cut down and remove the trees; in other words, it is the 
price paid for a license to cut. 
Stuprum /st(y)uwpr�m/. Lat. In the Roman and civil 
law, unlawful sexual intercourse between a man and an 
unmarried woman;-distinguished from adultery by be
ing committed with a virgin or widow. 
Any sexual intercourse between a man and an unmar
ried woman (not a slave), otherwise than in concubinage; 
illicit intercourse. 
An)' union of the sexes forbidden by morality. 
Sturgeon /st�rj�n/. In old English law, a royal fish 
which, when either thrown ashore or caught near the 
coast, is the property of the sovereign. 
Style. As a verb, to call, name, or entitle one. As a 
noun, the title or appellation of a person. 
Suable /s(y)uw�b�l/. Capable of being, or liable to be, 
sued. A suable cause of action is the matured cause of 
action. See Cause of action; Ripeness doctrine. 
Suapte natura /s(y)uwreptiy n�t(y)ur�/. Lat. In its own 
nature. Suapte natura sterilis, barren in its own nature 
and quality; intrinsically barren. 
Sua sponte /s(y)uw� spontiy/. Lat. Of his or its own 
will or motion; voluntarily; without prompting or sug
gestion. 
Sub /s�b/. Lat. Under; upon. For example: "sub 
judice" means "under judicial consideration" or in court 
and not yet decided, and "sublet" means to rent out 
something you yourself are renting. 
Subagent /s�beyj�nt/. A party to whom an agent del
egates his or her authority. An under-agent; a substi
tuted agent; an agent appointed by one who is himself 
1424 
an agent. A person appointed by an agent to perform 
some duty, or the whole of the business, relating to his 
agency. A person employed by an agent to assist him in 
transacting the affairs of his principal. But a mere 
servant of an agent is not a "subagent." Gulf Refining 
Co. v. Shirley, Tex.Civ.App., 99 S.W.2d 613, 615. A 
subagent is a person appointed by an agent empowered 
to do so, to perform functions undertaken by the agent 
for the principal, but for whose conduct the agent agrees 
with the principal to be primarily responsible. Restate
ment, Second, Agency, § 5. See also Agent. 
Subaltern /s�bolt�rn/s�b�lt�rn/. An inferior or subor
dinate officer. An officer who exercises his authority 
under the superintendence and control of a superior. 
Sub-ballivus /s�b-b�layv�s/. In old English law, an un
derbailiff; a sheriff's deputy. 
Subchapter C corporation. See Corporation, (C corpora
tion). 
Subchapter S corporation. See Corporation (S Corpora
tion). 
Sub colore juris /s�b k�loriy jur�s/. Under color of 
right; under a show or appearance of right or rightful 
power. 
Sub conditione / s�b k�ndishiyowniy / . Upon condition. 
The proper words to express a condition in a convey
ance, and to create an estate upon condition. 
Subcontract. See Contract. 
Subcontractor. One who takes portion of a contract 
from principal contractor or another subcontractor. 
Hardware Mut. Casualty Co. v. Hilderbrandt, C.C.A. 
Okl., 119 F.2d 291, 297, 299. One who has entered into 
a contract, express or implied, for the performance of an 
act with the person who has already contracted for its 
performance. One who takes from the principal or 
prime contractor a specific part of the work undertaken 
by the principal contractor. Royal Indemnity Co. v. 
Kenny Constr. Co., C.A.Ill., 528 F.2d 184, 191. 
Sub curia /s�b kyuriy�/. Lat. Under law. 
Sub disjunctione /s�b disj�IJkshiyowniy/. In the alter
native. 
Subditus /s�bd�t�s/. Lat. In old English law, a vassal; 
a dependent; any one under the power of another. 
Subdivide. To divide a part into smaller parts; to 
separate into smaller divisions. As, where an estate is 
to be taken by some of the heirs per stirpes, it is divided 
and subdivided according to the number of takers in the 
nearest degree and those in the more remote degree 
respectively. 
Subdivision. Division into smaller parts of the same 
thing or subject-matter. The division of a lot, tract or 
parcel of land into two or more lots, tracts, parcels or 
other divisions of land for sale or development. 
Resubdivision. The further division or relocation of lot 
lines of any lot or lots within a subdivision previously 
made and approved or recorded according to law; or, the 
alteration of any streets or the establishment of any new

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1425 
streets within any subdivision previously made and ap
proved or recorded according to law, but does not in
clude conveyances so as to combine existing lots by deed 
or other instrument. 
Subdivision map. A map showing how a larger parcel 
of land is to be divided into smaller lots, and generally 
also showing the layout of streets, utilities, etc. 
Subflow. Those waters which slowly find their way 
through sand and gravel constituting bed of a stream, or 
lands under or immediately adjacent to stream. Marico
pa County Municipal Water Conservation Dist. No. 1 v. 
Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, 380. 
Subhastare /s�bhresteriy/. Lat. In the civil law, to sell 
at public auction, which was done sub hasta, under a 
spear; to put or sell under the spear. 
Subhastatio /s�bhresteysh(iy)ow/. Lat. In the civil law, 
a"sale by public auction, which was done under a spear, 
fixed up at the place of sale as a public sign of it. 
Subinfeudation / s�binfyuwdeysh:m/. The system which 
the feudal tenants introduced of granting smaller es
tates out of those which they held of their lord, to be 
held of themselves as inferior lords. As this system was 
proceeding downward ad infinitum, and depriving the 
lords of their feudal profits, it was entirely suppressed 
by the statute Quia Emptores, 18 Edw. I, c. 1, and 
instead of it alienation in the modern sense was intro
duced, so that thenceforth the alienee held of the same 
chief lord and by the same services that his alienor 
before him held. 
Subirrigate / s�bihr;}geyt/. To irrigate below the sur
face, as by a system of underground porous pipes, or by 
natural percolation through the soil. 
Subjacent support /s;}bjeys;}nt s;}p6rt/. The right of 
land to be supported by the land which lies under it; 
distinguished from lateral (side) support. See also Sup
port. 
Subject. Constitutional law. One that owes allegiance 
to a sovereign and is governed by his laws. The natives 
of Great Britain are subjects of the British government. 
Men in free governments are subjects as well as citizens; 
as citizens they enjoy rights and franchises; as subjects 
they are bound to obey the laws. The term is little used, 
in this sense, in countries enjoying a republican form of 
government. Swiss Nat. Ins. Co. v. Miller, 267 U.S. 42, 
45 S.Ct. 213, 214, 69 L.Ed. 504. 
Legislation. The matter of public or private concern for 
which law is enacted. Thing legislated about or matters 
on which legislature operates to accomplish a definite 
object or objects reasonably related one to the other. 
Crouch v. Benet, 198 S.C. 185, 17 S.E.2d 320, 322. The 
matter or thing forming the groundwork of the act. 
McCombs v. Dallas County, Tex.Civ.App., 136 S.W.2d 
975, 982. 
The constitutions of several of the states require that 
every act of the legislature shall relate to but one 
subject, which shall be expressed in the title of the 
statute. But term "subject" within such constitutional 
provisions is to be given a broad and extensive meaning 
Black's Law Dictionary 6th Ed.-31 
SUBMERGED LANDS 
so as to allow legislature full scope to include in one act . all matters having a logical or natural connection. Jaf
fee v. State, 76 Okl.Cr. 95, 134 P.2d 1027, 1032. 
Subjection. The obligation of one or more persons to act 
at the discretion or according to the judgment and will 
of others. 
Subject-matter. The subject, or matter presented for 
consideration; the thing in dispute; the right which one 
party claims as against the other, as the right to divorce; 
of ejectment; to recover money; to have foreclosure. 
Flower Hospital v. Hart, 178 Okl. 447, 62 P.2d 1248, 
1252. Nature of cause of action, and of relief sought. 
In trusts, the res or the things themselves which are 
held in trust. Restatement, Second, Trusts, § 2. 
Subject matter jurisdiction. Term refers to court's 
power to hear and determine cases of the general class 
or category to which proceedings in question belong; the 
power to deal with the general subject involved in the 
action. Standard Oil Co. v. Montecatini Edison S. p. A., 
D.C.Del., 342 F.Supp. 125, 129. See also Jurisdiction of 
the subject matter. 
Subject to. Liable, subordinate, subservient, inferior, 
obedient to; governed or affected by; provided that; 
provided; answerable for. Homan v. Employers Rein
surance Corp., 345 Mo. 650, 136 S.W.2d 289, 302. 
Sub judice /s�b juwd;}siy/. Under or before a judge or 
court; under judicial consideration; undetermined. 
Sublata causa tollitur effectus / s;}bleyt;} k6z;} t61;}t;}r 
;}fekt;}s/ . The cause being removed the effect ceases. 
Sublata veneratione magistratuum, res publica ruit 
/ s;}bleyt;} ven;}reyshiy6wniy mrej;}streytyuw;}m, riyz 
p�bl;}k;} ruw;}t/. When respect for magistrates is taken 
away, the commonwealth falls. 
Sublato fundamento cadit opus /s;}bleytow f�nd;}men
tow keyd;}t 6wp;}s/. The foundation being removed, the 
superstructure falls. 
Sublato principali, tollitur adjunctum / s;}bleytow 
prins;}peylay, t61;}t;}r ;}j�1Jkt;}m /. When the principal is 
taken away, the incident is taken also. 
Sublease. A lease executed by the lessee of land or 
premises to a third person, conveying the same interest 
which the lessee enjoys, but for a shorter term than that 
for which the lessee holds (as compared to assignment, 
where the lessee transfers the entire unexpired term of 
the leasehold to a third party). Transaction whereby 
tenant grants interests in leased premises less than his 
own, or reserves to himself reversionary interest in 
term. Ernst v. Conditt, 54 Tenn.App. 328, 390 S.W.2d 
703, 707. See also Lease; Sandwich lease; Subtenant. 
A lease of goods the right to possession and use of 
which was acquired by the lessor as a lessee under an 
existing lease. U.C.C. § 2A-103(1)(w). 
Subletting. See also Sublease. 
Submerged lands. Land lying under water. Land ly
ing oceanside of the tideland. People v. Hecker, 179 
Cal.App.2d 823, 4 Cal.Rptr. 334, 341.

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SUBMERGENCE 
Submergence. As it concerns the proprietorship of 
land, consists in the disappearance of land under water 
and the formation of a more or less navigable body over 
it. Michelsen v. Leskowicz, 269 App.Div. 693, 55 N.Y. 
S.2d 831, 838. 
Submission. A yielding to authority; e.g. a citizen is 
bound to submit to the laws; a child to his parents. 
A contract between two or more parties whereby they 
agree to refer the subject in dispute to others and to be 
bound by their award. District of Columbia v. Bailey, 
171 U.S. 161, 18 S.Ct. 868, 872, 43 L.Ed. 11 8. See also 
Arbitration; Mediation. 
Submission bond. The bond by which the parties agree 
to submit their matters to arbitration, and by which 
they bind themselves to abide by the award of the 
arbitrator. 
Submission to jury. The act or process by which a 
judge gives to the jury the case on trial for their consid
eration and verdict. See Jury instructions. 
Submit. To commit to the discretion of another. To 
yield to the will of another. To propound; to present for 
determination; as an advocate submits a proposition for 
the approval of the court. See also Submission. 
Sub modo Is�b mowdow /. Under a qualification; sub
ject to a restriction or condition. 
Submortgage. When a person who holds a mortgage as 
security for a loan which he has made, procures a loan 
to himself from a third person, and pledges his mortgage 
as security, he effects what is called a "submortga ge." 
Sub nomine I s�b nom;)niy I. Under the name; in the 
name of; under the title of. 
Subnotations Is�bnowteysh;)nz/. In the civil law, the 
answers of the prince to questions which had been put to 
him respecting some obscure or doubtful point of law. 
Subordinate. Placed in a lower order, class, or rank; 
occupying a lower position in a regular descending ser
ies; inferior in order, nature, dignity, power, impor
tance, or the like; belonging to an inferior order in 
classification, and having a lower position in a recog
nized scale; secondary, minor. 
Subordinated bonds or debentures. A bond that has a 
claim on the issuing firm's assets that is junior to other 
forms of debt in the event of a liquidation. The claims 
of subordinated debenture holders can be met only after 
all the claims of senior creditors have been met. Usual
ly such bonds or debentures are not subordinate to 
general creditors but only to debt owed to a financial 
institution. 
Subordinate debt. Debt that is junior in status of 
claims to other types or classes of debts. 
Subordinate officer. One who performs duties imposed 
on him under direction of a principal or superior officer 
or he may be an independent officer subject only to such 
directions as the statute lays on him. 
Subordination. The act or process by which a person's 
rights or claims are ranked below those of others ; e.g. a 
1426 
second mortgag ee's rights are subordinate to those of 
the first mortgagee. 
Subordination agreement. An agreement by which 
one holding an otherwise senior lien or other real estate 
interest consents to a reduction in priority vis-a-vis 
another person holding an interest in the same real 
estate. An agreement by which the subordinating party 
agrees that its interest in real property should have a 
lower priority than the interest to which it is being 
subordinated. 
Subordination clause. A· covenant in a junior mort
gage enabling the first lien to keep its priority in case of 
renewal or refinancing. 
Suborn. To prepare, provide, or procure especially in a 
secret or underhand manner. United States v. Silver
man, C.C.A.Pa., 106 F.2d 750, 751. 
In criminal law, to procure another to commit perjury. 
Subornation of perjury. The offense of procuring an
other to take such a false oath as would constitute 
perjury in the principal. Jenkins v. U.S., 500 A.2d 1019, 
1021. 18 U.S.C.A. § 1622. See also Perjury. 
Suborner. One who suborns or procures another to 
commit any crime, particularly to commit perjury. 
Subpartner. See Partner. 
Sub pede sigilli Is�b piydiy s;)jilay/. Under the foot of 
the seal; under seal. 
Subpoena Is;)(b)piyn;)/. A subpoena is a command to 
appear at a certain time and place to give testimony 
upon a certain matter. A subpoena duces tecum re
quires production of books, papers and other things. 
Subpoenas in federal criminal cases are governed by 
Fed.R.Crim.P. 17, and in civil cases by Fed.R.Civil P. 45. 
See also Alias subpoena. 
Subpoena ad testificandum Is;)(b)piyn;) red tes
t;)f;)krend;)m/. Lat. Subpoena to testify. A technical 
and descriptive term for the ordinary subpoena. See 
Subpoena. 
Subpoena duces tecum Is;)(b)piyn;) d(y)uwsiyz tiyk;)m /. 
A court process, initiated by party in litigation, compel
ling production of certain specific documents and other 
items, material and relevant to facts in issue in a 
pending judicial proceeding, which documents and items 
are in custody and control of person or body served with 
process. People v. Grosunor, 108 Misc.2d 932, 439 N.Y. 
S.2d 243, 249. See Fed.R.Civil P. 45, and Fed.R.Crim.P. 
17. 
Sub potestate Is�b powd;)steytiy/. Under, or subject to, 
the power of another; used of a wife, child, slave, or 
other person not sui juris. 
Subreptio Is;)brepsh(iy)ow/. Lat. In the civil law, ob
taining gifts of escheat, etc., from the king by concealing 
the truth. 
Subreption Isubrepsyown/. In French law, the fraud 
committed to obtain a pardon, title, or grant, by alleging 
facts contrary to truth.

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1427 
Subrogation. The substitution of one person in the 
place of another with reference to a lawful claim, de
mand or right, so that he who is substituted succeeds to 
the rights of the other in relation to the debt or claim, 
and its rights, remedies, or securities. Gerken v. David
son Grocery Co., 57 Idaho 670, 69 P.2d 122, 126. Subro
gation denotes the exchange of a third person who has 
paid a debt in the place of the creditor to whom he has 
paid it, so that he may exercise against the debtor all 
the rights which the creditor, if unpaid, might have 
done. Subrogation appears commonly in construction 
contracts, insurance contracts, suretyship, and nego
tiable instrument law. Insurance companies, guaran
tors and bonding companies generally have the right to 
step into the shoes of the party whom they compensate 
and sue any party whom the compensated party could 
have sued. 
The right of one who has paid an obligation which 
another should have paid to be indemnified by the other. 
Olin Corp. (Plastics Division) v. Workmen's Compensa
tion Appeal Bd., 14 Pa.Cmwlth. 603, 324 A.2d 813, 816. 
A device adopted by equity to compel ultimate discharge 
of an obligation by him who in good conscience ought to 
pay it. Jenks Hatchery, Inc. v. Elliott, 252 Or. 25, 448 
P.2d 370, 373. 
Subrogation is of two kinds, either conventional or 
legal; the former being where the subrogation is ex
press, by the acts of the creditor and the third person; 
the latter being (as in the case of sureties) where the 
subrogation is effected or implied by the operation of the 
law. See also Equitable subrogation; Legal subrogation. 
Subrogee /s�browjiy;ogiy/. A person who is subrogated; 
one who succeeds to the rights of another by subroga
tion. 
Subrogor. The person who substitutes another for him
self; one who performs the subrogation. 
Sub rosa /s�b rowz';J/. Confidential, secret, not for publi
cation. 
Sub salvo et securo conductu /s�b s�Hvow et s';Jkylirow 
k';Jnd�kt(y)uw/. Under safe and secure conduct. 1 
Strange, 430. Words in the old writ of habeas corpus. 
Subscribe. Literally to write underneath, as one's 
name. To sign at the end of a document. Also, to agree 
in writing to furnish money or its equivalent, or to agree 
to purchase some initial stock in a corporation. See also 
Attest; Subscriber; Subscription. 
Subscribed capital. The total amount of stock or capi
tal for which there are contracts of purchase or subscrip
tions. 
Subscribed stock. A stockholders' equity account show
ing the capital that will be contributed as the subscrip
tion price is collected. A subscription is a legal contract 
so that an entry is made debiting a receivable and 
crediting subscribed stock as soon as the stock is sub
scribed. See also Subscriber; Subscription. 
Subscriber. One who writes his name under a written 
instrument; one who affixes his signature to any doc
ument, whether for the purpose of authenticating or 
SUBSEQUENT 
attesting it, of adopting its terms as his own expressions, 
or of binding himself by an engagement which it con
tains. 
One who becomes bound by a subscription to the 
capital stock of a corporation. One who has agreed to 
purchase stock from the corporation on the original 
issue of such stock, whether before or after incorpo
ration. Rev.Model Bus.Corp. Act, § 1.40. One who 
agrees to buy securities of a corporation, either bonds or 
stocks. 
Subscribing witness. He who witnesses or attests the 
signature of a party to an instrument, and in testimony 
thereof subscribes his own name to the document. One 
who sees a writing executed, or hears it acknowledged, 
and at the request of the party thereupon signs his 
name as a witness. See Attestation. 
Subscriptio /s';Jbskripsh(iy)ow/. Lat. In the civil law, a 
writing under, or under-writing; a writing of the name 
under or at the bottom of an instrument by way of 
attestation or ratif ication; subscription. 
Subscription. The act of writing one's name under a 
written instrument; the affixing one's signature to any 
document, whether for the purpose of authenticating or 
attesting it, of adopting its terms as one's own expres
sions, or of binding one's self by an engagement which it 
contains. 
A written contract by which one engages to take and 
pay for capital stock of a corporation, or to contribute a 
sum of money for a designated purpose, either gratui
tously, as in the case of subscribing to a charity, or in 
consideration of an equivalent to be rendered, as a 
subscription to a periodical, a forthcoming book, a series 
of entertainments, or the like. See also Subscribed 
stock; Subscriber, and compound terms below. 
Subscription contract. In general, any contract by 
which one becomes bound to buy. In particular, a 
contract for the purchase of securities. See Subscription. 
Subscription list. A list of subscribers to some agree
ment with each other or a third person. A list of 
subscribers to a periodical or series of publications or to 
some type of service. 
Subscription rights. Rights of existing stockholders to 
purchase additional stock, generally at a price under 
market and in an amount proportionate to their existing 
holdings. Also, the certificates evidencing such rights. 
See also Stock (Stock rights). 
Subsellia /s';Jbsel(i)y';J/. Lat. In Roman law, lower seats 
or benches, occupied by the judices and by inferior 
magistrates when they sat in judgment, as distinguished 
from the tribunal of the prretor. 
Subsequens matrimonium tollit peccatum prrecedens 
/ s';Jbsiykw';Jnz mretr';Jmown(i)y';Jm tol';Jt p';Jkeyt';Jm 
priysiyd';Jnz/. A subsequent marriage [of the parties] 
removes a previous fault, i.e., previous illicit intercourse, 
and legitimates the offspring. A rule of Roman law. 
Subsequent. Following in time; coming or being later 
than something else; succeeding.

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SUBSEQUENT CONDITION 
Subsequent condition. See Condition. 
Subservant. In law of agency, the servant or agent of 
another servant or agent. Generally, such agent or 
servant is principal as to the subservant. See also 
Subagent. 
Subsidiary. Under another's control. Term is often 
short for "subsidiary corporation"; i.e. one that is run 
and owned by another company which is called the 
"parent." See Subsidiary corporation. 
Of secondary importance. 
Subsidiary corporation. One in which another corpo
ration (i.e. parent corporation) owns at least a ma jority 
of the shares, and thus has control. Said of a company 
more than 50 percent of whose voting stock is owned by 
another. 
Subsidy. A grant of money made by government in aid 
of the promoters of any enterprise, work, or improve
ment in which the government desires to participate, or 
which is considered a proper subject for government aid, 
because such purpose is likely to be of benefit to the 
public. 
Sub silentio /s�b s�l€msh(iy)ow/. Under silence; with
out any notice being taken. Passing a thing sub silentio 
may be evidence of consent. 
Subsistence. Support. Means of support, provisions, or 
that which procures provisions or livelihood. See Nec
essaries; Support. 
Sub spe reconciliationis / s�b spiy rek�nsiliyey
shiy6wn�s/. Under the hope of reconcilement. 
Substance. Essence; the material or essential part of a 
thing, as distinguished from "form ." That which is 
essential. 
Substance vs. form concept. A standard used, com
monly in taxation, to ascertain the true reality of what 
has occurred. 
Substantial. Of real worth and importance; of consider
able value; valuable. Belonging to substance; actually 
existing; real; not seeming or imaginary; not illusive; 
solid; true; veritable. Seglem v. Skelly Oil Co., 145 
Kan. 216, 65 P.2d 553, 554. Something worthwhile as 
distinguished from something without · value or merely 
nominal. In re Krause's Estate, 173 Wash. 1, 21 P.2d 
268. Synonymous with material. Lewandoski v. Fink
el, 129 Conn. 526, 29 A.2d 762, 764. 
Substantial capacity test. Term used in the definition 
of legal insanity proposed by the Model Penal Code 
(§ 4.01) to the effect that a person is not responsible for 
criminal conduct if at the time of such conduct as a 
result of mental disease or defect he lacks substantial 
capacity either to appreciate the criminality (wrongful
ness) of his conduct or to conform his conduct to the 
requirements of law. See also Insanity. 
Substantial compliance rule. Compliance with the es
sential requirements, whether of a contract or of a 
statute. Wentworth v. Med ellin, Tex.Civ.App., 529 
S.W.2d 125, 128. In life insurance law is that where 
1428 
insured has done substantially all he is required to do 
under policy to effect change in beneficiary and mere 
ministerial acts of insurer's officers and agents only 
remain to be done, change will take effect. Inter-South
ern Life Ins. Co. v. Cochran, 259 Ky. 677, 83 S.W.2d 11, 
14. See Substantial performance doctrine. 
Substantial damages. See Damages. 
Substantial equivalent of patented device. Same as 
thing itself, so that if two devices do same work in 
substantially same way, and accomplish substantially 
same results, they are equivalent, even though differing 
in name, form, or shape. Bedell v. Dictograph Products 
Co., 251 App.Div. 243, 296 N.Y.S. 25, 32; Freeman v. 
Altvater, C.C.A.Mo., 66 F.2d 506, 511. 
Substantial evidence rule. Such evidence that a rea
sonable mind might accept as adequate to support a· 
conclusion. It is that quality of evidence necessary for a 
court to affirm a decision of an administrative board. 
Under the "substantial evidence rule," reviewing courts 
will defer to an agency determination so long as, upon 
an examination of the whole record, there is substantial 
evidence upon which the agency could reasonably base 
its decision. Marshall v. Consumers Power Co., 65 Mich. 
App. 237, 237 N.W.2d 266, 280. 
Substantial evidence is evidence possessing something 
of substance and relevant consequence and which fur
nishes substantial basis of fact from which issues ten
dered can be reasonably resolved. State v. Green, 218 
Kan. 438, 544 P.2d 356, 362. Evidence which a reason
ing mind would accept as sufficient to support a particu
lar conclusion and consists of more than a mere scintilla 
of evidence but may be somewhat less than a preponder
ance. Marker v. Finch, D.C.Del., 322 F.Supp. 905, 910. 
For purposes of considering sufficiency of evidence in 
criminal case, "substantial evidence" means evidence 
from which trier of fact reasonably could find issue in 
harmony therewith. Kansas City v. Stamper, Mo.App., 
528 S.W.2d 767, 768. 
Under the substantial evidence rule, as applied in 
administrative proceedings, all evidence is competent 
and may be considered, regardless of its source and 
nature, if it is the kind of evidence that a reasonable 
mind might accept as adequate to support a conclusion. 
In other words, the competency of evidence for purposes 
of administrative agency adjudicatory proceedings is 
made to rest upon the logical persuasiveness of such 
evidence to the reasonable mind in using it to support a 
conclusion. It is more than a mere scintilla and means 
such relevant evidence as a reasonable mind might 
accept as adequate to support a conclusion. Chrysler 
Corp. v. U.S. Environmental Protection Agency, C.A., 
631 F.2d 865, 890, 203 U.S.App.D.C. 283. 
See also Whole record test. 
Substantial justice. Justice administered according to 
the rules of substantive law, notwithstanding errors of 
procedure. Interstate Bankers Corporation v. Kennedy, 
D.C.Mun.App., 33 A.2d 165, 166. 
Substantially. Essentially; without material qualifiC'..8.
tion; in the main; in substance; materially; in a sub-

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1429 
stantial manner. About, actually, competently, and es
sentially. Gilmore v. Red Top Cab Co. of Washington, 
171 Wash. 346, 17 P.2d 886, 887. 
Substantially justified. Test for whether government's 
litigation position is "substantially justified" within 
meaning of Equal Access to Justice Act provision gov
erning award of attorney fees (28 U.S.C.A. 
§ 2412(d)(1)(A» is one of reasonableness, under which 
government is required to establish that its position has 
reasonable basis both in law and in fact. Russell v. 
National Mediation Bd., C.A.Tex., 775 F.2d 1284, 1289. 
Following 1985 amendments to Equal Access to Justice 
Act, in order to show that its position was "substantially 
justified" and thus be relieved from liability for fees of a 
prevailing opponent, Government must show not merely 
that its position was marginally reasonable, but that its 
position was clearly reasonable, well founded in law and 
fact, and solid though not necessarily correct. U.S. v. 
1,378.65 Acres of Land, More or Less, Situate in Vernon 
County, State of Mo., C.A.Mo;, 794 F.2d 1313, 1317. See 
Equal Access to Justice Act. 
Substantial performance doctrine. A doctrine in com
mercial reasonableness which recognizes that the ren
dering of a performance which does not exactly meet the 
terms of the agreement (slight deviation) will be looked 
upon as fulfillment of the obligation, less the damages 
which result from any deviation from the promised 
performance. This doctrine, which is widely applied in 
building contracts and which is intended to prevent 
unjust enrichment, provides that where contract is made 
for agreed exchange of two performances, one of which 
is to be rendered first, substantial performance, rather 
than strict, exact or literal performance, by first party of 
terms of contract is sufficient to entitle such party to 
recover on such performance. Della Ratta, Inc. v. 
American Better Community Developers, Inc., 38 Md. 
App. 119, 380 A.2d 627, 637. 
Substantial performance of a contract is shown when 
party alleging substantial performance has made an 
honest endeavor in good faith to perform his part of the 
contract, when results of his endeavor are beneficial to 
other party, and when such benefits are retained by the 
other party; if any one of these circumstances is not 
established the performance is not substantial, and the 
party has no right of recovery. Alliance Tractor & 
Implement Co. v. Lukens Tool & Die Co., 194 Neb. 473, 
233 N.W.2d 299, 301. 
Substantiate / s�bstrenshiyeyt/ . To establish the exist
ence or truth of, by true or competent evidence, or to 
verify. Graves v. School Committee of Wellesley, 299 
Mass. 80, 12 N.E.2d 176, 179. 
Substantive. An essential part or constituent or relat
ing to what is essential. Stewart-Warner Corporation v. 
Le Vally, D.C.Ill., 15 F.Supp. 571, 576. 
Substantive due process. Doctrine that due process 
clauses of the Fifth and Fourteenth Amendments to the 
United States Constitution require legislation to be fair 
and reasonable in content as well as application. Such 
may be broadly defined as the constitutional guarantee 
SUBSTITUTED SERVICE 
that no person shall be arbitrarily deprived of his life, 
liberty or property. The essence of substantive due 
process is protection from arbitrary and unreasonable 
action. Jeffries v. Turkey Run Consolidated School 
Dist., C.A.lnd., 492 F.2d 1, 3. See Due process of law. 
Substantive evidence. That adduced for the purpose of 
proving a fact in issue, as opposed to evidence given for 
the purpose of discrediting a witness (i.e., showing that 
he is unworthy of belief), or of corroborating his testimo
ny. See also Substantial evidence rule. 
Substantive felony. An independent felony; one not 
dependent upon the conviction of another person for 
another crime. 
Substantive law. That part of law which creates, de
fines, and regulates rights and duties of parties, as 
opposed to "adjective, procedural, or remedial law," 
which prescribes method of enforcing the rights or ob
taining redress for their invasion. Allen v. Fisher, 574 
P.2d 1314, 1315. The basic law of rights and duties 
(contract law, criminal law, tort law, law of wills, etc.) as 
opposed to procedural law (law of pleading, law of evi
dence, law of jurisdiction, etc.). Compare Adjective law; 
Procedural law. 
Substantive offense. One which is complete of itself 
and not dependent upon another. U. S. v. Martinez
Gonzales, D.C.Cal., 89 F.Supp. 62, 64. 
Substantive rights. A right to the equal enjoyment of 
fundamental rights, privileges and immunities; distin
guished from procedural right. 
Substitute, n. /s�bst�t(y)uwt/. One who or that which 
stands in the place of another; that which stands in lieu 
of something else. A person hired by one who has been 
drafted into the military service of the country, to go to 
the front and serve in the army in his stead. 
Substitute, v. To put in the place of another person or 
thing; to exchange. Toledo Edison Co. v. McMaken, 
C.C.A.O hio, 103 F.2d 72, 75. 
Substituted basis. In taxation, the basis of an asset 
determined by reference to the basis in the hands of a 
transferor, donor or grantor or by reference to other 
property held at any time by the person for whom the 
basis is to be determined. I.R.C. § 1016(b). 
Substitute defendant. One who takes the place of 
another in the same suit or controversy and not one who 
is sued upon an entirely different cause of action. 
McCann v. Bentley Stores Corp., D.C.Mo., 34 F.Supp. 
231, 233. See Substitution of parties. 
Substituted executor. One appointed to act in the 
place of another executor upon the happening of a 
certain event; e.g., if the latter should refuse the office. 
Substituted service. Service of process upon a defen
dant in any manner, authorized by statute or rule, other 
than personal service within the jurisdiction; as by 
publication, by mailing a copy to his last known address, 
or by personal service in another state. See Fed.R.Civil 
P. 4. See also Service.

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SUBSTITUTE FATHER 
Substitute father. A man who cohabits with the moth
er of children not being married to her. King v. Smith, 
392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118. 
Substitutio hreredis Is�bst;}t(y)uwsh(iy)ow h;}riyd;}s/. 
Lat. In Roman law, it was competent for a testator 
after instituting a hreres (called the "hreres institutus ") 
to substitute another (called the "hreres substitutus ") in 
his place in a certain event. If the event upon which 
the substitution was to take effect was the refusal of the 
instituted heir to .accept the inheritance at all, then the 
substitution was called "vulgaris" (or common); but if 
the event was the death of the infant (pupillus) after 
acceptance, and before attaining his majority (of four
teen years if a male, and of twelve years if a female), 
then the substitution was called "pupillaris" (or for 
minors). 
Substitution. Putting in place of another thing; change 
of one thing for another; serving in lieu of another; 
having some of its parts replaced. See also Subrogation. 
In the civil law, the putting one person in place of 
another; particularly, the act of a testator in naming a 
second devisee or legatee who is to take the bequest 
either on failure of the original devisee or legatee or 
after him. 
Substitutional or substitutionary. Where a will con
tains a gift of property to a class of persons, with a 
clause providing that on the death of a member of the 
class before the period of distribution his share is to go 
to his issue (if any), so as to substitute them for him, the 
gift to the issue is said to be substitutional or substitu
tionary. A bequest to such of the children of A. as shall 
be living at the testator's death, with a direction that 
the issue of such as shall have died shall take the shares 
which their parents would have taken, if living at the 
testator's death, is an example. 
Substitutionary evidence. Such as is admitted as a 
substitute for what would be the original or primary 
instrument of evidence; as where a witness is permitted 
to testify to the contents of a lost document. See also 
Secondary evidence. 
Substitutionary executor Is�bst;}t(y)uwsh;}nehriy ;}g
zeky;}d;}r/. See Executor(-trix). 
Substitution of judgment doctrine. Such doctrine, 
where permitted, allows the court, upon petition of an 
incompetent's guardian, to approve an estate plan de
signed to produce tax savings. Uniform Probate Code, 
§ 5-408. Strange v. Powers, 358 Mass. 126, 260 N.E.2d 
704. 
Substitution of parties. In pleading, the replacement 
of one party to an action by another party because of 
death, incompetency, transfer of interest, or in case of a 
public official who is a party to an action, his death or 
separation from office. Fed.R.Civ.P. 17(a), 25. See also 
Real party in interest; Revival of action. 
Substraction Isubstraksyown/. In French law, the 
fraudulent appropriation of any property, but particu
larly of the goods of a decedent's estate. 
1430 
Sub suo periculo Is�b s(y)uwow p;}rik(y);}low/. At his 
own risk. 
Subtenant I s�bten;}ntl. An under-tenant; one who leas
es all or a part of the rented premises from the original 
lessee for a term less than that held by the latter. Peak 
v. Gaddy, 152 Okl. 138, 3 P.2d 1042, 1043. See Sublease. 
Subterfuge Is:}bt;}fyuwj/. That to which one resorts for 
escape or concealment. Los Angeles Fisheries v. Crook, 
C.C.A.Cal., 47 F.2d 1031, 1035. See also Artifice. 
Subterranean waters Is�bt;}reyn(i)y;}n wot;}rz/. See Wa
ter. 
Subtraction. The offense of withholding or withdrawing 
from another man what by law he is entitled to. There 
are various descriptions of this offense, of which the 
principal are as follows: (1) Subtraction of suit and 
services, which is a species of injury affecting a man's 
real property, and consists of a withdrawal of (or a 
neglect to perform or pay) the fealty, suit of court, rent, 
or services reserved by the lessor of the land. (2) Sub
traction of tithes is the withholding from the parson or 
vicar the tithes to which he is entitled, and this is 
cognizable in the ecclesiastical courts. (3) Subtraction of 
conjugal rights is the withdrawing or withholding by a 
husband or wife of those rights and privileges which the 
law allows to either party. (4) Subtraction of legacies is 
the withholding or detaining of legacies by an executor. 
(5) Subtraction of church rates, in English law, consists 
in the refusal to pay the amount of rate at which any 
individual parishioner has been assessed for the neces
sary repairs of the parish church. 
Subtraction of conjugal rights. The act of a husband 
or wife living separately from the other without a lawful 
cause. 3 Bl.Comm. 94. See also Subtraction. 
Suburbani Is�b;}rbeynay/. Lat. In old English law, 
husbandmen. 
Subversion. The act or process of overthrowing, de
stroying, or corrupting. Used in connection with activi
ties designed to undermine and overthrow the govern
ment, state and federal. See Subversive activities. 
Subversive activities. Acts directed toward the over
throw of the government, including treason, sedition 
and sabotage. Such acts are federal crimes. 18 U.S. 
C.A. § 2381 et seq.; 50 U.S.C.A. § 781 et seq. See 
Espionage; Smith Act. 
Successful party. For purposes of rule allowing "suc
cessful party" to recover costs, "successful party" is one 
who obtains judgment of competent court vindicating 
civil claim of right. Zoning Bd. of Adjustment of City of 
Lubbock v. Graham & Associates, Inc., Tex.App. 7 Dist., 
664 S.W.2d 430, 437. See also Prevailing party. 
Successio Is;}ksesh(iy)ow/. Lat. In the civil law, a 
coming in place of another, on his decease; a coming 
into the estate which a deceased person had at the time 
of his death. This was either by virtue of an express 
appointment of the deceased person by his will (ex 
testamento), or by the general appointment of law in 
case of intestacy (ab intestato).

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1431 
Succession. The devolution of title to property under 
the law of descent and distribution. The act or right of 
legal or official investment with a predecessor's office, 
dignity, possession, or functions; also the legal or actual 
order of so succeeding from that which is or is to be 
vested or taken. The word when applied to realty 
denotes persons who take by will or inheritance and 
excludes those who take by deed, grant, gift, or any form 
of purchase or contract. Olsan Bros. v. Miller, Tex.Civ. 
App., 108 S.W.2d 856, 857. 
Although "succession" is defined in statute as the 
acquisition of title to the property of one who dies 
without disposing of it by will, the word frequently 
possesses the somewhat broader meaning of the acquisi
tion of rights upon the death of another. In re Russell's 
Estate, 17 C.A.3d 758, 95 Cal.Rptr. 88, 95. 
The right by which one group of persons may, by 
succeeding another group, acquire a property in all the 
goods, movables, and other chattels of a corporation. 
The power of perpetual succession is one of the peculiar 
properties of a corporation. See Perpetual. 
See also Descent; Devise; Inheritance; Intestate; Suc
cessor; Testamentary. 
Civil Law and Louisiana 
The fact of the transmission of the rights, estate, 
obligations, and charges of a deceased person to his heir 
or heirs. The right by which the heir can take posses
sion of the decedent's estate. The right of the heir to 
step into the place of the deceased, with respect to the 
possession, control, enjoyment, administration, and set
tlement of all the latter's property, rights, obligations, 
charges, etc. 
The estate of a deceased person, comprising all kinds 
of property owned or claimed by him, as well as his 
debts and obligations, and considered as a legal entity 
(according to the notion of the Roman law) for certain 
purposes, such as collecting assets and paying debts. 
The transmission of the rights and obligations of the 
deceased to the heirs, also the estates, rights, and 
charges which a person leaves after his death, whether 
the property exceeds the charges or the charges exceed 
the property, or whether he has only left charges with
out any property. The succession not only includes the 
rights and obligations of the deceased as they exist at 
the time of his death, but all that has accrued thereto 
since the opening of the succession, as also the new 
charges to which it becomes sub ject. The coming in of 
another to take the property of one who dies without 
disposing of it by will. 
General 
Artificial succession. That attribute of a corporation by 
which, in contemplation of law, the company itself re
mains always the same though its constituent members 
or stockholders may change from time to time. 
Hereditary succession. Descent or title, by descent at 
common law; the title whereby a man on the death of 
SUCCESSOR IN INTEREST 
his ancestor acquires his estate by right of representa
tion as his heir at law. 
Intestate succession. The succession of an heir at law to 
the property and estate of his ancestor when the latter 
has died intestate, or leaving a will which has been 
annulled or set aside. See also Descent; Devise; Inheri
tance; Intestate. 
Irregular succession. That which is established by law 
in favor of certain persons, or of the state, in default of 
heirs, either legal or instituted by testament. 
Legal succession. That which the law establishes in 
favor of the nearest relation of a deceased person. See 
Descent. 
Natural succession. Succession taking place between 
natural persons, for example, in descent on the death of 
an ancestor. 
Testamentary succession. In the civil law, that which 
results from the institution of an heir in a testament 
executed in the form prescribed by law. See Testamen
tary. 
Testate succession. Passing of property to another by 
will. 
Vacant succession. Such exists when no one claims it, 
or when all the heirs are unknown, or when all the 
known heirs to it have renounced it. Civ.Code La. art. 
1095. Simmons v. Saul, 138 U.S. 439, 11 S.Ct. 369, 34 
L.Ed. 1054. 
Succession duty or tax. A tax placed on the gratuitous 
acquisition of property passing on the death of any 
person by transfer from one person to another. Wacha
via Bank & Trust Co. v. Maxwell, 221 N.C. 528, 20 
S.E.2d 840, 842. A tax imposed upon the privilege of 
receiving property from a decedent by devise or inheri
tance. See Inheritance tax. 
Successive. Following one after another in a line or 
series. In re Buchholtz, Cust. & Pat.App., 54 F.2d 965, 
966. 
Successor. One that succeeds or follows; one who takes 
the place that another has left, and sustains the like 
part or character; one who takes the place of another by 
succession. Wawak Co. v. Kaiser, C.C.A.IlI., 90 F.2d 694, 
697. One who has been appointed or elected to hold an 
office after the term of the present incumbent. 
Term with reference to corporations, generally means 
another corporation which, through amalgamation, con
solidation, or other legal succession, becomes invested 
with rights and assumes burdens of first corporation. 
Singular successor. A term borrowed from the civil law, 
denoting a person who succeeds to the rights of a former 
owner in a single article of property (as by purchase), as 
distinguished from a universal successor, who succeeds 
to all the rights and powers of a former owner, as in the 
case of a bankrupt or intestate estate. 
Successor in interest. One who follows another in 
ownership or control of property. In order to be a 
"successor in interest", a party must continue to retain

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SUCCESSOR IN INTEREST 
the same rights as original owner without change in 
ownership and there must be change in form only and 
not in substance, and transferee is not a "successor in 
interest." In case of corporations, the term ordinarily 
indicates statutory succession as, for instance, when 
corporation changes its name but retains same property. 
City of New York v. Turnpike Development Corp., 36 
Misc.2d 704, 233 N.Y.S.2d 887, 890. 
Successors. Those persons, other than creditors, who 
are entitled to property of a decedent under his will or 
succession statute. Uniform Probate Code, § 1-201(42). 
Successor trustee. A trustee who follows or succeeds an 
earlier trustee and who generally has all the powers of 
the earlier trustee. Trusts generally make provisions 
for appointment of successor trustees. 
Succinct I saksiIJktl . Brief, precise, exact. 
Succurritur minori; facilis est lapsus juventutis 
Isak:}hratar manoray, fresalas est lrepsas 
juwvant(y)uwtas/. A minor is [to be] aided; a mistake of 
youth is easy [youth is liable to err]. 
Such. Of that kind, having particular quality or charac
ter specified. Identical with, being the same as what 
has been mentioned. Alike, similar, of the like kind. 
"Such" represents the object as already particularized in 
terms which are not mentioned, and is a descriptive and 
relative word, referring to the last antecedent. 
Sudden. Happening without previous notice or with 
very brief notice; coming or occurring unexpectedly; 
unforeseen; unprepared for. Hagaman v. Manley, 141 
Kan. 647, 42 P.2d 946, 949. 
Sudden emergency doctrine. When a person finds 
himself confronted with a sudden emergency, which was 
not brought about by his own negligence or want of care, 
such person has the legal right to do what appears to 
him at the time he should do, so long as he acts in a 
reasonably prudent manner as any other person would 
have done under like or similar circumstances, to avoid 
any injury, and if he does so act, he will not be deemed 
to have been negligent even though it might afterwards 
be apparent that some other course of action would have 
been safer. Swann v. Huttig Sash & Door Co., C.A.Tex., 
436 F.2d 60, 62. Under sudden emergency doctrine, one 
placed in position of sudden emergency or peril other 
than by his own negligence, is not held to same degree of 
care and prudence as one who has time for thought and 
reflection. Dadds v. Pennsylvania R. Co., Del., 251 A.2d 
559, 560. See also Emergency doctrine; Sudden peril rule. 
Sudden heat of passion. In the common-law definition 
of manslaughter, this phrase means an excess of rage or 
anger, suddenly arising from a contemporary provoca
tion. It means that the provocation must arise at the 
time of the killing, and that the passion is not the result 
of a former provocation, and the act must be directly 
caused by the passion arising out of the provocation at 
the time of the homicide. See also Heat of passion. 
Sudden or violent injury. Injury occurring unexpected
ly and not naturally or in the ordinary course of events. 
1432 
Sudden peril rule. Under this rule, a defendant who is 
guilty of primary negligence is not liable in case of 
sudden peril where the peril or alarm was caused by the 
negligence of the opposite party, apprehension of peril 
from the standpoint of defendant seeking to excuse his 
primary negligence was reasonable, and appearance of 
danger was so imminent as to leave no time for delibera
tion. White v. Munson, Tex.Civ.App., 162 S.W.2d 429, 
432. But rule cannot be invoked by one bringing emer
gency on or not using due care, to avoid it. McClelland 
v. Interstate Transit Lines, 142 Neb. 439, 6 N.W.2d 384, 
391. See also Sudden emergency doctrine. 
Sudder Is�dar/. In Hindu law, the best; the forecourt of 
a house; the chief seat of government, contradistin
guished from "mofussil, " or interior of the country; the 
presidency. 
Sue. To commence or to continue legal proceedings for 
recovery of a right; to proceed with as an action, and 
follow it up to its proper termination; to gain by legal 
process. Lervold v. Republic Mut. Fire Ins. Co., 142 
Kan. 43, 45 P.2d 839, 843. To commence and carry out 
legal action against another. Word includes a proceed
ing instituted by confession of judgment. Common
wealth ex reI. Bradford County v. Lynch, 146 Pa.Super. 
469, 23 A.2d 77, 78. See also Suit. 
Sue out. To obtain by application; to petition for and 
take out. Properly the term is applied only to the 
obtaining and issuing of such process as is only accorded 
upon an application first made; but conventionally it is 
also used of the taking out of process which issues of 
course. The term is occasionally used of instruments 
other than writs. 
Suerte Is(u)wertey/. In Spanish law, a small lot of 
ground. Particularly, such a lot within the limits of a 
city or town used for cultivation or planting as a garden, 
vineyard or orchard. Building lots in towns and cities 
are called "solares." 
Suffer. To allow, to admit, or to permit. Osborne v. 
Winter, 133 Cal.App. 664, 24 P.2d 892. It includes 
knowledge of what is to be done under sufferance. First 
Nat. Bank & Trust Co. of Port Chester v. New York 
Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703, 709. To 
suffer an act to be done or a condition to exist is to 
permit or cQnsent to it; to approve of it, and not to 
hinder it. ft implies knowledge, a willingness of the 
mind and responsible control or ability to prevent. Wil
son v. Nelson, 183 U.S. 191, 22 S.Ct. 74, 46 L.Ed. 147. 
Also to have the feeling or sensation that arises from 
the action of something painful, distressing or the like; 
to feel or endure pain; to endure or undergo without 
sinking; to support; to bear up under; to be affected by; 
to sustain; to experience; to feel pain, physical or men
tal. The customary use of the word indicates some 
experience of conscious pain. New York Life Ins. Co. v. 
Calhoun, C.C.A.Mo., 97 F.2d 896, 898. 
Sufferance Is:}f(a)ran(t)s/. Toleration; negative permis
sion by not forbidding; passive consent; license implied 
from the omission or neglect to enforce an adverse right.

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1433
Sufferance wharves. In old English law, wharves in
which goods may be landed before any duty is paid.
They are appointed for the purpose by the commission
ers of the customs.
Sufferentia pacis IsM:m�nsh(iY)::l peys::ls/. Lat. A grant
or sufferance of peace or truce.
Suffering a recovery. In old English law, a recovery
was effected by the party wishing to convey the land
suffering a fictitious action to be brought against him by
the party to whom the land was to be conveyed (the
demandant), and allowing the demandant to recover a
judgment against him for the land in question. The
vendor, or conveying party, in thus assisting or permit
ting the demandant so to recover a judgment against
him, was thence technically said to "suffer a recovery."
Sufficiency of evidence. Term refers to test prescribed
by rule providing that grand jury ought to find an
indictment when all the evidence taken together, if
unexplained or uncontradicted, would warrant a convic
tion by the trier of the offense. State v. Parks, Alaska,
437 P.2d 642, 644.
Barring plain error, an appellate court may not grant
a directed verdict or a judgment n. o. v. absent an
appropriate motion in the trial court; that is to say, it
may not review the "sufficiency of the evidence" and " grant a final judgment in favor of a party who failed so
to move; and "sufficiency" is a term of art meaning that
legal standard which is applied to determine whether
the case may -go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter
of law. Urti v. Transport Commercial Corp., C.A.La.,
479 F.2d 766, 769.
See also Burden of proof; Substantial evidence rule;
Sufficient evidence. Compare Insufficiency of evidence to
support verdict.
Sufficient. Adequate, enough, as much as may be neces
sary, equal or fit for end proposed, and that which may
be necessary to accomplish an object. Of such quality,
number, force, or value as to serve a need or purpose.
Nissen v. Miller, 44 N.M. 487, 105 P.2d 324, 326. As to
sufficient Consideration see that title.
Sufficient cause. Such cause as to hold defendant to
answer charges is reasonable or probable cause or that
state of facts as would lead a man of ordinary caution to
conscientiously entertain strong suspicion of defendant's
guilt. People v. Upton, 257 Cal.App.2d 677, 65 Cal.Rptr.
103, 109. See also Probable cause.
Sufficient evidence. Adequate evidence; such evidence,
in character, weight, or amount, as will legally justify
the judicial or official action demanded; according to
circumstances, it may be "prima facie" or "satisfactory"
evidence. Sufficient evidence is that which is satisfac
tory for the purpose; that amount of proof which ordi
narily satisfies an unprejudiced mind, beyond a reason
able doubt. The term is not synonymous with "conclu
sive;" but it may be used interchangeably with the term
"weight of evidence." See also Burden of proof; Evi
dence; Satisfactory evidence; Substantial evidence rule;
Sufficiency of evidence.
SUGGESTION
Suffocate. To kill by stopping respiration, as by stran
gling or asphyxiation.
Suffragan IsMr::lg::ln/. Bishops who in former times
were appointed to supply the place of others during
their absence on embassies or other business were so
termed. They were consecrated as other bishops were,
and were anciently called "chorepiscopi, " or "bishops of
the county," in contradistinction to the regular bishops
of the city or see. The practice of creating suffragan
bishops, after having long been discontinued, was recent
ly revived; and such bishops are now permanently "as
sistant" to the bishops.
A suffragan is a titular bishop ordained to aid and
assist the bishop of the diocese in his spiritual function;
or one who supplieth the place instead of the bishop, by
whose suffrage ecclesiastical causes or matters commit
ted to him are to be ad judged, acted on, or determined.
Suffrage Is�fr::lj/. A vote; the act of voting; the right or
privilege of casting a vote at public elections. The last
is the meaning of the term in such phrases as "the
extension of the suffrage," "universal suffrage," etc.
Right of "suffrage" is right of a man to vote for whom he
pleases. Waterbury Homeowners Ass'n v. City of Wa
terbury, 28 Conn.Sup. 295, 259 A.2d 650, 654. See
Nineteenth Amendment.
Suffragium IsM reyj(iY)::lm/. Lat. In Roman law, a vote;
the right of voting in the assemblies of the people.
Aid or influence used or promised to obtain some
honor or office; the purchase of office.
Suggest. To introduce indirectly to the thought; to
propose with diffidence or modesty; to hint; to intimate.
Suggested retail price. Selling price recommended to
retailer by manufacturer of goods.
Suggestio falsi I s::lgjest(i)yow f61say I. Lat. Suggestion
or representation of that which is false; false represen
tation. To recite in a deed that a will was duly exe
cuted, when it was not, is suggestio falsi; and to conceal
from the heir that the will was not duly executed is
suppressio veri.
Suggestion. A suggesting; presentation of an idea espe
cially indirectly, as through association of ideas, bring
ing before the mind for consideration, action, solution,
or the like. It is in the nature of a hint or insinuation,
and lacks the element of probability. Facts which mere
ly suggest do not raise an inference of the existence of
the fact suggested, and therefore a suggestion is much
less than an inference or presumption. See Leading
question.
In practice, a statement, formally entered on the
record, of some fact or circumstance which will materi
ally affect the further proceedings in the cause, or which
is necessary to be brought to the knowledge of the court
in order to its right disposition of the action, but which,
for some reason, cannot be pleaded. Thus, if one of the
parties dies after issue and before trial, his death may
be suggested on the record.

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SUGGESTION OF ERROR 
Suggestion of error. Request for rehearing. See also 
Objection. 
Suggestive interrogation. A phrase used by some writ
ers to signify "leading question." It is so used in the 
French law. See Leading question. 
Suicide. Self-destruction; the deliberate termination of 
one's own life. 
Attempted suicide is a crime in some jurisdictions, but 
not in others. Some jurisdictions hold an attempted 
suicide which kills an innocent bystander or would-be 
rescuer to be murder, others manslaughter, others no 
crime. Some jurisdictions hold it to be murder for one 
person to persuade or aid another to commit suicide; 
some (by statute) make it manslaughter or a separate 
crime. 
Sui generis /s(y)uway jen�r�s/. Lat. Of its own kind or 
class; i.e., the only one of its own kind; peculiar. 
Sui hreredes /s(y)uway h�riydiyz/. Lat. In the civil law, 
one's own heirs; proper heirs. 
Sui juris /s(y)uway jur�s/. Lat. Of his own right; pos
sessing full social and civil rights; not under any legal 
disability, or the power of another, or guardianship. 
Having capacity to manage one's own affairs; not 
under legal disability to act for one's self. 
See Emancipation; Majority. Compare Non sui juris. 
Suit. A generic term, of comprehensive signification, 
referring to any proceeding by one person or persons 
against another or others in a court of law in which the 
plaintiff pursues, in such court, the remedy which the 
law affords him for the redress of an injury or the 
enforcement of a right, whether at law or in equity. 
Kohl v. U. S., 91 U.S. 367, 375, 23 L.Ed. 449; Weston v. 
Charleston, 27 U.S. (2 Pet.) 449, 464, 7 L.Ed. 481; Syra
cuse Plaster Co. v. Agostini Bros. Bldg. Corporation, 169 
Misc. 564, 7 N.Y.S.2d 897. It is, however, seldom ap
plied to a criminal prosecution. And it was formerly 
sometimes restricted to the designation of a proceeding 
in equity, to distinguish such proceeding from an action 
at law. Term "suit" has generally been replaced by 
term "action"; which includes both actions at law and 
in equity. Fed.R.Civil P. 2. For Ancillary suit and suit In 
rem see those titles. See also Action; Cause of action; 
Litigation; Proceeding. 
Old English law. The witnesses or followers of the 
plaintiff. 3 Bl.Comm. 295. See Secta. 
Old books mention the word in many connections 
which are now disused,-at least, in the United States. 
Thus, "suit" was used of following any one, or in the 
sense of pursuit; as in the phrase "making fresh suit." 
It was also used of a petition to the king or lord. "Suit 
of court" was the attendance which a tenant owed at the 
court of his lord. "Suit covenant" and "suit custom" 
seem to have signified a right to one's attendance, or 
one's obligation to attend, at the lord's court, founded 
upon a known covenant, or an immemorial usage or 
practice of ancestors. "Suit regal" was attendance at 
the sheriff's tourn or leet (his court). USuit of the king's 
peace" was pursuing an offender,-one charged with 
1434 
breach of the peace, while "suithold" was a tenure in 
consideration of certain services to the superior lord. 
Class suits. See Class or representative action. 
Derivative suit. See Stockholder's derivative action. 
Suit against state. Suit in which relief against the state 
is sought. See Sovereign immunity; Tort claims acts. 
Suit money. Counsel fees allowed or awarded by court 
to party. An allowance, in the nature of temporary 
alimony, authorized by statute in some states to be made 
to a wife on the institution of her suit for divorce, 
intended to cover the reasonable expenses of the suit 
and to provide her with means for the efficient prepara
tion and trial of her case. Many federal statutes pro
vide for allowance of attorney fees for actions brought 
under respective statutes; e.g., actions to recover social 
security disability benefits. See also American rule; 
Equal Access to Justice Act. 
Suit of a civil nature. A suit for the remedy of a private 
wrong, called a ucivil action". Fed.R.Civil P. 2. See 
Action. 
Suits or proceedings at law or in chancery. Suits insti
tuted and carried or in substantial conformity with the 
forms and modes prescribed by the common law or by 
the rules in chancery excluding cases instituted and 
carried on solely in accordance with statutory provi
sions. Under current rules practice in the federal and 
most state courts, there is now only one form of action 
called a "civil action", which embraces both actions at 
law and in equity. Fed.R.Civil P. 2. 
Suitable. Fit and appropriate for the end in view. 
Suitas. Lat. In the civil law, the condition or quality of 
a suus hreres, or proper heir. 
Suite. Those persons who by his authority follow or 
attend an ambassador or other public minister. 
Suitor. A party who brings an action; a petitioner; a 
plaintiff. In its ancient sense, "suitor" meant one who 
was bound to attend the county court; also one who 
formed part of the secta. 
Suitors' deposit account. Formerly suitors in the Eng
lish court of chancery derived no income from their cash 
paid into court, unless it was invested at their request 
and risk. Now, however, it is provided by the court of 
chancery (funds) act, 1872, that all money paid into 
court, and not required by the suitor to be invested, 
shall be placed on deposit and shall bear interest at two 
per cent. per annum for the benefit of the suitor entitled 
to it. 
Suitors' fee fund. A fund in the English court of 
chancery into which the fees of suitors in that court 
were paid, and out of which the salaries of various 
officers of the court were defrayed. 
Suits in Admiralty Act. Federal statute giving injured 
parties the right to sue the government in admiralty. 
46 U.S.C.A. §§ 741-752. Donily v. U. S., D.C.Or., 381 
F.Supp. 901. See also Sovereign immunity.

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1435 
Sulcus I s;lk�s/. In old English law, a small brook or 
stream of water. 
Sullery Is;l�riy/. In old English law, a plowland. 
Sum. In English law, a summary or abstract; a compen
dium; a collection. Several of the old law treatises are 
called "sums." Lord Hale applies the term to summa
ries of statute law. 
The sense in which the term is most commonly used is 
"money"; a quantity of money or currency; any amount 
indefinitely, a sum of money, a small sum, or a large 
sum. U. S. v. Van Auken, 96 U.S. 366, 368, 24 L.Ed. 
852. 
Sumage I s;m�j I . Toll for carriage on horseback. 
Sum certain. A requisite of a negotiable instrument is 
that it contains an unconditional promise to pay a "sum 
certain." U.C.C. § 3--104(1)(b). In law of negotiable 
instruments, the sum payable is a sum certain even 
though it is to be paid (a) with stated interest or by 
stated installments; or (b) with stated different rates of 
interest before and after default or a specified date; or 
(c) with a stated discount or addition if paid before or 
after the date fixed for payment; or (d) with exchange or 
less exchange, whether at a fixed rate or at the current 
rate; or (e) with costs of collection or an attorney's fee or 
both upon default. U.C.C. § 3--106(1). 
Amount in contract or negotiable instrument, or mea
sure of damages in litigation, that is fixed, settled, exact, 
or stated. Default judgment may be entered only for a 
"sum certain," which is a sum susceptible to reliable 
computation or determined by the court after an ac
counting. Insurance Co. of North America v. SIS "Hel
lenic Challenger", D.C.N.Y., 88 F.R.D. 545, 548. 
Sum in gross. See In gross. 
Summa caritas est facere justitiam singulis, et omni 
tempore quando necesse fuerit I s;m� krer�tres est 
fres�riy j:)stish(iy)�m silJgy�l�s, et omnay temp�riy kwon
dow n�sesiy fyuw�r�tI. The greatest charity is to do 
justice to every one, and at any time whenever it may be 
necessary. 
Summa est lex qure pro religione facit I s;m� est leks 
kwiy prow r�lijiyowniy feys�tI. That is the highest law 
which favors religion. 
Summa ratio est qure pro religione facit / s;m� 
reysh(iy)ow est kwiy prow r�lijiyowniy feys�t/. That 
consideration is strongest which determines in favor of 
religion. 
Summarily. Without ceremony or delay, short or con
cise. 
Summary, n. An abridgment; brief; compendium; di
gest; also a short application to a court or judge, with
out the formality of a full proceeding. 
Summary, adj. Short; concise; immediate; peremptory; 
off-hand; without a jury; provisional; statutory. The 
term as used in connection with legal proceedings means 
a short, concise, and immediate proceeding. 
Summary conviction. See Conviction. 
SUMMONITIO 
Summary courts martial. See Court-Martial. 
Summary ejectment. See Process (Summary process). 
Summary eviction. See Process (Summary process). 
Summary judgment. See that title. 
Summary jurisdiction. The jurisdiction of a court to 
give a judgment or make an order itself forthwith; e.g., 
to commit to prison for contempt. In the case of justices 
of the peace, a jurisdiction to convict · an offender them
selves instead of committing him for trial by a jury. 
Summary proceeding. See Proceeding (Summary). 
Summary trial. See Proceeding (Summary). 
Summary process. See Process. 
Summary judgment. Procedural device available for 
prompt and expeditious disposition of controversy with
out trial when there is no dispute as to either material 
fact or inferences to be drawn from undisputed facts, or 
if only question of law is involved. American State 
Bank of Killdeer v. Hewson, N.D., 411 N.W.2d 57, 60. 
Federal Rule of Civil Procedure 56 permits any party to 
a civil action to move for a summary judgment on a 
claim, counterclaim, or cross-claim when he believes 
that there is no genuine issue of material fact and that 
he is entitled to prevail as a matter of law. The motion 
may be directed toward all or part of a claim or defense 
and it may be made on the basis of the pleadings or 
other portions of the record in the case or it may be 
supported by affidavits and a variety of outside material. 
See also Genuine issue; Material fact. 
Summation. See Summing up. 
Summing up. On the trial of an action to a jury, a 
recapitulation by attorneys and, sometimes, judge of the 
evidence adduced, in order to draw the attention of the 
jury to the salient points at issue. The counsel for each 
party has the right of summing up his evidence, if he 
has adduced any, and the judge sometimes sums up the 
whole in his charge to the jury. See Closing argument. 
Summon. To serve a summons; to cite a defendant to 
appear in court to answer a suit which has been begun 
against him; to notify the defendant that an action has 
been instituted against him, and that he is required to 
answer to it at a time and place named. See Summons. 
Summoneas I s�mowniyeys/. L. Lat. In old practice, a 
writ of summons; a writ by which a party was sum
moned to appear in court. 
Summoners I s;m�n�rz/. Petty officers, who cite and 
warn persons to appear in any court. 
Summonitio Is:)m�nish(iy)ow/. L. Lat. In old English 
practice, a summoning or summons; a writ by which a 
party was summoned to appear in court, of which there 
were various kinds. 
Summonitiones aut citationes nullre liceant fieri in· 
tra palatium regis I s:)m�nishiyowniyz ot sayteyshiyow
niyz n;liy lisiyrent fay�ray intr� p�leysh(iy)�m riyj�s/. 
Let no summonses or citations be served within the 
king's palace.

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SUMMONITORES SCACCARII 
Summonitores scaccarii I s�m:m�t oriyz sk�keriyay I. 
Of ficers who assisted in collecting the revenues by citing 
the defaulters therein into the court of exchequer. 
Summons. Instrument used to commence a civil action 
or special proceeding and is a means of acquiring juris
diction over a party. In re Dell, 56 Misc.2d 1017, 290 
N.Y.S.2d 287, 289. Writ or process directed to the 
sheriff or other proper officer, requiring him to notify 
the person named that an action has been commenced 
against him in the court from where the process issues, 
and that he is required to appear, on a day named, and 
answer the complaint in such action. Upon the filing of 
the complaint the clerk is required to issue a summons 
and deliver it for service to the marshal or to a person 
specially appointed to serve it. Fed.R.Civil P. 4(a). See 
also Alias summons; Process; Service. 
In criminal law, an alternative to arrest generally 
used for petty or traffic offenses; a written order notify
ing an individual that he or she has been charged with 
an offense. A summons directs the person to appear in 
court to answer the charge. It is used primarily in 
instances of low risk, where the person will not be 
required to appear at a later date. See e.g. Fed.R. 
Crim.P. 4, 9. 
Form and content of summons. The summons shall be 
signed by the clerk, be under the seal of the court, 
contain the name of the court and the names of the 
parties, be directed to the defendant, state the name and 
address of the plaintiffs attorney, if any, otherwise the 
plaintiffs address, and the time within which these 
rules require the defendant to appear and defend, and 
shall notify him that in case of his failure to do so 
judgment by default will be rendered against him for 
the relief demanded in the complaint. When service is 
made pursuant to a statute or rule of court of a state, 
the summons, or notice, or order in lieu of summons 
shall correspond as nearly as may be to that required by 
the statute or rule. Fed.R.Civil P. 4(b). For form of 
summons in criminal cases, see Fed.R.Crim.P. 4, 9. 
John Doe summons. An order of the court to appear in 
a proceeding to one whose name is unknown. A descrip
tion of the person so ordered is required to appear on 
the summons to satisfy due process requirements. 
Summons ad respondendum I s�m:mz red respon
dend�m /. Process issuing in a civil case at law notifying 
defendant therein named that he must appear on day 
designated and thereupon make answer to plaintiffs 
statement of his cause of action. 
Summons and order. In English practice, the summons 
is the application to a common-law judge at chambers in 
reference to a pending action, and upon it the judge or 
master makes the order. 
Summum jus I s�m�m j�s/. Lat. Strict right; extreme 
right. The extremity or rigor of the law. See Apex juris. 
Summum jus, summa injuria; summa lex, summa 
crux I s�m�m j�s, s�m� injuriy;); s�m;) leks, s�m;) kr�ks/. 
Extreme law (rigor of law) is the greatest injury; strict 
law is great punishment. That is, insistence upon the 
full measure of a man's strict legal rights may work the 
greatest injury to others, unless equity can aid. 
1436 
Sumner. See Sompnour. 
Sum payable. As used within negotiable instruments 
law is the amount for which, by the terms of the 
instrument, the maker becomes liable, and which he 
might tender and pay in full satisfaction of his obli
gation. See also Sum certain. 
Sumptuary laws Is�m (p)tyuw�riy loz/. Laws made for 
the purpose of restraining luxury or extravagance, par
ticularly against inordinate expenditures in the matter 
of apparel, food, furniture, etc. 
Sunday. The first day of the week is designated by this 
name; also as the "Lord's Day," and as the "Sabbath." 
Sunday closing laws. Laws and ordinances which re
strict certain types of business or commercial activities 
from operating on Sunday. Also called "blue laws". 
See also Work of necessity. 
Sundries. Miscellaneous or various items which may be 
considered together, without being separately specified 
or identified. 
Sundry. Separate, divers, or various. 
Sunset law. A statute or provision in a law that re
quires periodic review of the rationale for the continued 
existence of the particular law or the specific adminis
trative agency or other governmental function. The 
legislature must take positive steps to allow the law, 
agency, or functions to continue in existence by a cer
tain date or such will cease to exist. 
Sunshine law. Laws which require that meetings of 
governmental agencies and departments be open to pub
lic with reasonable access to the records of such proceed
ings. 5 U.S.C.A. § 552b. See also Freedom of Informa
tion Act. 
Suo nomine Is(y)uwow nom�ni y/. Lat. In his own 
name. 
Suo periculo Is(y)uwow p�rik(y)�low/. Lat. At his own 
peril or risk. 
Super Is(y)uwp�r/. Lat. Upon; above; over; higher, as 
in quantity, quality and degree; more than; as in super
essential, super-natural or super-standard. 
Super altum mare Is(y)uwp�r relt�m meriy/. On the 
high sea. 
Supercargo Is(y)uwp�rkargow/. In maritime law, a per
son specially employed by the owner of a cargo to take 
charge of and sell to the best advantage merchandise 
which has been shipped, and to purchase returning 
cargoes and to receive freight, as he may be authorized. 
Superficiarius Is(y)uwp�rfishiyeriy�s/. Lat. In the civ
il law, he who has built upon the soil of another, which 
he has hired for a number of years or forever, yielding a 
yearly rent. In other words, a tenant on ground-rent. 
Superficies Is(y)uwp�rfishiyiyz/. Lat. In the civil law, 
the alienation by the owner of the surface of the soil of 
all rights necessary for building on the surface, a yearly 
rent being generally reserved; also a building or erec
tion.

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1437 
Superficies solo cedit Is(y)uwp;rfishiyiyz sowlow 
siyd; t/. Whatever is attached to the land forms part of 
it. 
Super fidem cbartarum, mortuis testibus, erit ad pa
triam de necessitate recurrendum Is(y)uwp;r fayd;m 
karter;m, mortyuw;s test;b;s, ehr;t red pcHriy;m diy 
n;ses;teytiy rek;hrend;m /. The truth of charters is 
necessarily to be referred to a jury, when the witnesses 
are dead. 
Superfund. Popular name for the Comprehensive Envi
ronmental Response, Compensation, and Liability Act of 
1980, 42 V.S.C.A. § 9601 et seq., which holds responsible 
parties liable for the cost of cleaning up hazardous waste 
sites. The name derives from a trust fund initially 
created by the Act for meeting clean up costs pending 
reimbursement from responsible parties. Many states 
have passed similar laws. Cf. McKinney's Environmen
tal Conservation Law §§ 71-2701 et seq. See also Toxic 
waste. 
Superflua non nocent Is(y)uwp�rfl(y)uw� non nos�nt/. 
Superfluities do not prejudice. Surplusage does not 
vitiate. 
Superinductio /s(y)uwp�rind�ksh(iy)ow/. Lat. In the 
civil law, a species of obliteration. 
Superinstitution. The institution of one in an office to 
which another has been previously instituted; as where 
A. is admitted and instituted to a benefice upon one 
title, and B. is admitted and instituted on the title or 
presentment of another. 
A church being full by institution, if a second institu
tion is granted to the same church this is a superinstitu
tion. 
Superintend. To have charge and direction of; to direct 
the course and oversee the details; to regulate with 
authority; to manage; to oversee with the power of 
direction; to take care of with authority. 
Superintendent. One who superintends or has the over
sight and charge of something with the power of di
rection; a manager. 
Superior, n. One who has a right to command; one who 
holds a superior rank. 
Superior, adj. Higher; b�longing to a higher grade. 
People ex reL McCoy v. McCahey, 296 Ill. App. 310, 15 
N.E.2d 988, 993. More elevated in rank or office. Pos
sessing larger power. Entitled to command, influence, 
or control over another. 
In estates, some are superior to others. An estate 
entitled to a servitude or easement over another estate 
is called the "superior" or "dominant," and the other, 
the "inferior" or "servient," estate. 
In the feudal law, until the statute quia emptores 
precluded subinfeudations (q.v.), the tenant who granted 
part of his estate to be held of and from himself as lord 
was called a "superior." 
Superior courts. Courts of general or extensive jurisdic
tion, as distinguished from the inferior courts. As the 
official style of a tribunal, the term "superior court" 
SUPERSEDEAS 
bears a different meaning in different states. In some it 
is a court of intermediate jurisdiction between the trial 
courts and the chief appellate court; elsewhere it is the 
designation of the trial courts. See also Court. 
Superior fellow servant. A term introduced into the law 
of negligence, and meaning one higher in authority than 
another, and whose commands and directions his inferi
ors are bound to respect and obey, though engaged at 
the same line of work. 
Superior force. In the law of bailments and of negli
gence, an uncontrollable and irresistible force, of human 
agency, producing results which the person in question 
could not avoid; equivalent to the Latin phrase "vis 
major." See Vis. 
Superjurare /s(y)uwp�rjureriy/. Over-swearing. A 
term anciently used when a criminal endeavored to 
excuse himself by his own oath or the oath of one or two 
witnesses, and the crime objected against him was so 
plain and notorious that he was convicted on the oaths 
of many more witnesses. 
Supernumerarii /s(y)uwp�rn�m�reriyay/. Lat. In Ro
man law, advocates who were not registered or enrolled 
and did not belong to the college of advocates. They 
were not attached to any local jurisdiction. See Statuti. 
Superoneratio /s(y)uwp�ron�reysh(iy)ow/. Lat. Sur
charging a common; i.e., putting in beasts of a number 
or kind other than the right of common allows. 
Superoneratione pasturre / s(y )uwp�ron�reyshiyowniy 
prestyliriy /. A judicial writ that lay against him who 
was impleaded in the county court for the surcharge of a 
common with his cattle, in a case where he was formerly 
impleaded for it in the same court, and the cause was 
removed into one of the superior courts. 
Superplusagium /s(y)uwp�rpl�seyj(iy)�m/. In old Eng
lish law, overplus; surplus; residue or balance. 
Super prrerogativa regis /s(y)uwp�r pr�rog�tayv� 
riyj�s/. A writ which formerly lay against the king's 
tenant's widow for marrying without the royal license. 
Supersede /s(y)uwp�rsiyd/. Obliterate, set aside, annul, 
replace, make void, inefficacious or useless, repeaL To 
set aside, render unnecessary, suspend, or stay. 
Supersedeas /s(y)uwp�rsiydiy�s/. The name of a writ 
containing a command to stay the proceedings at law. 
A suspension of the power of a trial court to issue an 
execution on judgment appealed from, or, if writ of 
execution has issued, it is a prohibition emanating from 
court of appeal against execution of writ. Stewart v. 
Hurt, 9 CaL2d 39, 68 P.2d 726, 727. An auxiliary 
process designed to supersede enforcement of trial 
court's judgment brought up for review, and its applica
tion is limited to the judgment from which an appeal is 
taken. Mascot Pictures Corp. v. Municipal Court of City 
of Los Angeles, 3 CaLApp.2d 559, 40 P.2d 272. 
Originally it was a writ directed to an officer, com
manding him to desist from enforcing the execution of 
another writ which he was about to execute, or which 
might come in his hands. In modern times the term is

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SUPERSEDEAS 
often used synonymously with a "stay of proceedings," 
and is employed to designate the effect of an act or 
proceeding which of itself suspends the enforcement of a 
judgment. 
Supersedeas bond. A bond required of one who peti
tions to set aside a judgment or execution and from 
which the other party may be made whole if the action 
is unsuccessful. See Fed.R. Civil P. 62; Fed.R.App.P. 7 
and 8. 
Superseding cause. An act of a third person or other 
force which by its intervention prevents the actor from 
being liable for harm to another which his antecedent 
negligence is a substantial factor in bringing about. 
Donegan v. Denney, 457 S.W.2d 953, 958. An interven
ing act or acts of negligence which operate to insulate 
an antecedent tort-feasor from liability for negligently 
causing a dangerous condition which results in injury. 
Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 
A.2d 300, 304. See also Intervening cause; Supervening 
negligence. 
Super statuto /s(y)uwp�r st�t(y)uwtow/. A writ, upon 
the statute 1 Edw. III, c. 12, that lay against the king's 
tenant holding in chief, who aliened the king's land 
without his license. 
Super statuto de articulis cIeri /s(y)uwp�r st�t(y)uwtow 
diy artiky�bs kliray/. A writ which lay against a 
sheriff or other officer who distrained in the king's 
highway, or on lands anciently belonging to the church. 
Super statuto facto pour seneschal et marshal de 
roy, etc. /s(y)uwp�r st�t(y)uwtow frektow pur sEm�shal 
ey mar(�)shal d� roy, etset�r�/. A writ which lay 
against a steward or marshal for holding plea in his 
court, or for trespass or contracts not made or arising 
within the king's household. 
Super statuto versus servantes et laboratores 
/s(y)uwp�r st�t(y)uwtow v�rs�s s�rvrentiyz et 
h�b�r�toriyz/. A writ which lay against him who kept 
any servants who had left the service of another con 
trary to law. 
Superstitious use. In English law, when lands, tene
ments, rents, goods, or chattels are given, secured, or 
appointed for and towards the maintenance of a priest 
or chaplain to say mass, for the maintenance of a priest 
or other man to pray for the soul of any dead man in 
such a church or elsewhere, to have and maintain per
petual obits, lamps, torches, etc., to be used at certain 
times to help to save the souls of men out of purgatory, 
-in such cases the king, by force of several statutes, is 
authorized to direct and appoint all such uses to such 
purposes as are truly charitable. The doctrine has no 
recognition in this country; and a bequest to support a 
Catholic priest, and perhaps other uses void in England, 
would not be considered as superstitious uses. 
Supervening cause. A new effective cause which, oper
ating independently of anything else, becomes proxi
mate cause of accident. See also Intervening cause; 
Superseding cause. 
1438 
Supervening negligence. To come within the doctrine 
of last clear chance or supervening negligence, four 
conditions must coexist, to wit: (1) the injured party has 
already come into a position of peril; (2) the injuring 
party then or thereafter becomes, or in the exercise of 
ordinary prudence ought to have become, aware, not 
only of that fact, but also that the party in peril either 
reasonably cannot escape from it or apparently will not 
avail himself of opportunities open to him for doing so; 
(3) the injuring party subsequently has the opportunity 
by the exercise of reasonable care to save the other from 
harm; and (4) he fails to exercise such care. See also 
Intervening cause; Last clear chance doctrine; Supersed
ing cause. 
Supervise. To have general oversight over, to superin
tend or to inspect. See Supervisor. 
Supervision. An act of occupation of supervising; in
spection. 
Supervisor. A surveyor or overseer. Also, in some 
states, the chief officer of a town; one of a board of 
county officers. 
In a broad sense, one having authority over others, to 
superintend and direct. 
The term "supervisor" means any individual having 
authority, in the interest of the employer, to hire, trans
fer, suspend, lay off, recall, promote, discharge, assign, 
reward, or discipline other employees, or responsibly to 
direct them, or to adjust their grievances, or effectively 
to recommend such action, if in connection with the 
foregoing the exercise of such authority is not of a 
merely routine or clerical nature, but requires the use of 
independent judgment. National Labor Relations Act, 
§ 2(11). 
Supervisory control. Control exercised by courts to 
compel inferior tribunals to act within their jurisdiction, 
to prohibit them from acting outside their jurisdiction, 
and to reverse their extra jurisdictional acts. See Man
damus. 
Supplemental. That which is added to a thing or act to 
complete it. See also Amendment. 
Supplemental act. That which supplies a deficiency, 
adds to or completes, or extends that which is already in 
existence without changing or modifying the original. 
Act designed to improve an existing statute by adding 
something thereto without changing the original text. 
Supplemental affidavit. An affidavit made in addition 
to a previous one, in order to supply some deficiency in 
it. 
Supplemental answer. One which was filed for the 
purpose of correcting, adding to, and explaining an 
answer already filed. See Supplemental pleading. 
Supplemental bill. In equity pleading, a bill filed in 
addition to an original bill, in order to supply some 
defect in its original frame or structure which cannot be 
supplied by amendment; or, for purpose of bringing into 
controversy matter occurring after original bill was 
filed.

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1439 
Supplemental bill in nature of bill of review. A type 
of bill employed to invoke jurisdiction of court of chan
cery to recall one of its adjudications made while some 
fact existed which, if before court, would have prevented 
rendition of final decree, and which, without negligence 
of party presenting it, was not earlier presented to 
chancellor. 
Supplemental claim. A further claim which is filed 
when further relief is sought after the bringing of a 
claim. See Supplemental complaint. 
Supplemental complaint. Under the Rules of Civil 
Procedure in the federal and most state courts, is a 
complaint filed in an action to bring to the notice of the 
court and the opposite party matters occurring after the 
commencement of action and which may affect the 
rights asserted. Fed.RCivil P. 15(d). 
It is distinguished from an "amended complaint ," in 
that an "amended complaint" is one which corrects 
merely faults and errors of a pleading. 
Supplemental pleading. One consisting of facts arising 
since filing of the original. Supplemental pleadings 
relate to occurrences, transactions and events which 
may have happened since the date of the pleadings 
sought to be supplemented. Fed.RCivil P. 15(d). 
McKnight v. McKnight, 25 N.C.App. 246, 212 S.E.2d 902, 
904. Compare Amendment (Practice and pleading). 
Supplementary. Added as a supplement; additional; 
being, or serving as, a supplement. 
Supplementary proceedings. Proceedings supplemen
tary to an execution, directed to the discovery of the 
debtor's property and its application to the debt for 
which the execution is issued. Post-judgment remedies 
provided by statute or procedural rules that allow dis
covery against persons who might have information on 
the whereabouts of nonexempt assets of the debtor (sup
plemental discovery) and that facilitate application of 
these assets in satisfaction of the judgment (supplemen
tal relief). See also Execution. 
After an execution on a judgment has issued, the 
judgment creditor may commence new proceedings to 
collect the debt. This process includes a summons to 
the judgment debtor to appear and to submit to an 
examination as to his property and the court is empow
ered under statutes to enter an order for payment, for 
violation of which the debtor may be cited for contempt 
and imprisoned; e.g. M.G.L.A. (Mass.) c. 246, § 6; Mass. 
RCivil P. 4.3(b). See also Fed.R Civil P. 69(a). 
Suppletory oath. See Oath. 
Suppliant /s:)pl(i)y:mt/. The actor in, or party prefer
ring, a petition of right. 
Supplicatio /s;)pbkeysh(iy)ow/. Lat. In the civil law, a 
petition for pardon of a first offense; also a petition for 
reversal of judgment; also equivalent to "duplicatio, " 
which corresponds to the common law rejoinder. 
Supplicavit /s;)pl�keyv�t/. In English law, a writ issu
ing out of the king's bench or chancery for taking 
sureties of the peace. It is commonly directed to the 
SUPPORT 
justices of the peace, when they are averse to acting in 
the affair in their judicial capacity. 4 Bl.Comm. 253. 
Supplicium /s�plish(iy)�m/. Lat. In the civil law, pun
ishment; corporal punishment for crime. Death was 
called "ultimum supplicium, " the last or extreme penal
ty. 
Supplier. Any person engaged in the business of mak
ing a consumer product directly or indirectly available 
to consumers; includes all persons in the chain of pro
duction and distribution of a consumer product includ
ing the producer or manufacturer, component supplier, 
wholesaler, distributor, and retailer. 15 U.S.C.A. 
§ 2301. 
Supplies. Means of provision or relief; stores; available 
aggregate of things needed or demanded in amount 
sufficient for a given use or purpose; accumulated stores 
reserved for distribution; sufficiency for use or need; a 
quantity of something supplied or on hand. 
In English law, in parliamentary proceedings the 
sums of money which are annually voted by the house of 
commons for the maintenance of the crown and the 
various public services. 
Supply. To furnish with what is wanted; available 
aggregate of things needed or demanded; anything 
yielded or afforded to meet a want; and the act of 
furnishing with what is wanted. Clayton v. Bridgeport 
Mach. Co., Tex.Civ.App., 33 S.W.2d 787, 789. 
Support, v. Furnishing funds or means for mainte
nance; to maintain; to provide for; to enable to contin
ue; to carry on. To provide a means of livelihood. To 
vindicate, to maintain, to defend, to uphold with aid or 
countenance. 
Support, n. That which furnishes a livelihood; a source 
or means of living; subsistence, sustenance, mainte
nance, or living. In a broad sense the term includes all 
such means of living as would enable one to live in the 
degree of comfort suitable and becoming to his station of 
life. It is said to include anything requisite to housing, 
feeding, clothing, health, proper recreation, vacation, 
traveling expense, or other proper cognate purposes; 
also, proper care, nursing, and medical attendance in 
sickness, and suitable burial at death. See also Mainte
nance. 
Support also signifies the right to have one's ground 
supported so that it will not cave in, when an adjoining 
owner makes an excavation. This support is of two 
kinds, lateral and subjacent. Lateral support is the 
right of land to be supported by the land which lies next 
to it. Subjacent support is the right of land to be 
supported by the land which lies under it. 
See also Family expense statutes; Legal duty; Legal 
obligation; Maintenance; Necessaries; Nonsuppo rt; Re
ciprocal Enforcement of Support Act; Separate mainte
nance. 
Crime of non-support. A person commits a misdemean
or if he persistently fails to provide support which he 
can provide and which he knows he is legally obliged to

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SUPPORT 
provide to a spouse, child or other dependent. Model 
Penal Code, § 230.5. 
Ground for divorce. Non-support of spouse, if able to so 
provide, is a ground for divorce under many state stat
utes. 
Legal duty. Most all states have statutes which impose 
obligation to support spouse and children; e.g. "Every 
individual shall support his or her spouse and child, and 
shall support his or her parent when in need." Calif. 
Civil Code, § 242. 
Interstate enforcement. The majority of states have 
adopted the "Uniform Reciprocal Enforcement of Sup
port Act" as a means of interstate enforcement of sup
port obligations. 
Supposition. A conjecture based upon possibility or 
probability that a thing could or may have occurred, 
without proof that it did occur. 
Suppress. To put a stop to a thing actually existing; to 
prohibit, put down; to prevent, subdue, or end by force. 
To "suppress evidence" is to keep it from being used in a 
trial by showing that it was either gathered illegally or 
that it is irrelevant. See Suppression hearing; Suppres
sion of evidence. 
Suppression. Conscious effort to control and conceal 
unacceptable impulses, thoughts, feelings or acts. 
Suppression hearing. A pretrial proceeding in crimi
nal cases in which a defendant seeks to prevent the 
introduction of evidence alleged to have been seized 
illegally. The ruling of the court then prevails at the 
trial. Fed.R.Crim.P. 5. 1(a), 12, and 41. See also Exclu
sionary Rule. 
Suppression of evidence. The ruling of a trial judge to 
the effect that evidence sought to be admitted should be 
excluded because it was illegally acquired. Motions to 
suppress illegally obtained evidence are governed by 
Fed.R.Crim.P. 5.1(a), 12, and 41. See also Exclusionary 
Rule; Motion to suppress. 
The crime of compounding a felony by refusing to give 
evidence or to testify in a criminal proceeding. 
Concept of "suppression" as that term is used in rule 
that suppression by the prosecution of material evidence 
favorable to an accused on request violates due process, 
implies that the government has information in its 
possession of which the defendant lacks knowledge and 
which the defendant would benefit from knowing. U. S. 
v. Natale, C.A.N.Y., 526 F.2d 1160, 1170. See also 
Withholding of evidence. 
Suppressio veri Is�presh(iy)ow viray/. Lat. Suppres
sion or concealment of the truth. It is a rule of equity, 
as well as of law, that a suppressio veri is equivalent to a 
suggestio falsi; and where either the suppression of the 
truth or the suggestion of what is false can be proved, in 
a fact material to the contract, the party injured may 
have relief against the contract. 
Suppressio veri, expressio falsi Is�presh(iy)ow viray, 
;kspresh(iy)ow f61say/. Suppression of the truth is 
[equivalent to] the expression of what is false. 
1440 
Suppressio veri, suggestio falsi Is�presh(iy)ow viray, 
s�gjest(i)yow f61say/. Suppression of the truth is [equiv
alent to] the suggestion of what is false. 
Supra Is(y)uwpra/. Lat. Above; upon. This word oc
curring by itself in a book refers the reader to a previous 
part of the book, like "ante;" it is also the initial word of 
several Latin phrases. 
Supra protest Is(y)uwpra pr6wtestl. See Protest. 
Supra-riparian I s(y )uwpr�-r�periy�n/. Upper riparian; 
higher up the stream. This term is applied to the 
estate, rights, or duties of a riparian proprietor whose 
land is situated at a point nearer the source of the 
stream than the estate with which it is compared. 
Supremacy. The state of being supreme, or in the 
highest station of power; paramount authority; sover
eignty; sovereign power. 
Act of supremacy. The English statute 1 Eliz., c. 1, 
whereby the supremacy and autonomy of the crown in 
spiritual or ecclesiastical matters was declared and es
tablished. 
Oath of supremacy. An oath to uphold the supreme 
power of the kingdom of England in the person of the 
reigning sovereign. 
Supremacy clause. The clause of Art. VI of the U.S. 
Constitution which declares that all laws made in pur
suance of the Constitution and all treaties made under 
the authority of the United States shall be the "supreme 
law of the land" and shall enjoy legal superiority over 
any conflicting provision of a State constitution or law. 
See also Preemption. 
Suprema potestas seipsam dissolvere potest 
Isapriyma patestres siyipsam daz61v�riy p6wt�stl. Su
preme power can dissolve itself. 
Supreme. Superior to all other things. 
Supreme court. An appellate court existing in most of 
the states. In the federal court system, and in most 
states, it is the highest appellate court or court of last 
resort. In others (such as New York) the supreme court 
is a court of general original jurisdiction, possessing also 
(in New York) some appellate jurisdiction, but not the 
court of last resort. See also Court of Appeals. 
Supreme court of errors. Formerly, the court of last 
resort in Connecticut, now called "Supreme Court". 
Supreme Court of the United States. The U.S. Supreme 
Court comprises the Chief Justice of the United States 
and such number of Associate Justices as may be fixed 
by Congress. Under that authority, and by virtue of the 
act of June 25, 1948 (62 Stat. 869; 28 U.S.C.A. 1), the 
number of Associate Justices is eight. Power to nomi
nate the Justices is vested in the President of the United 
States, and appointments are made by and with the 
advice and consent of the Senate. Article III, section 1, 
of the Constitution further provides that "the Judges, 
both of the supreme and inferior Courts, shall hold their 
Offices during good Behaviour, and shall, at stated 
Times, receive for their Services, a Compensation, which

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1441 
shall not be diminished during their Continuance in 
Of fice." See 28 U.S.C.A. § 1251 et seq. 
Supreme Judicial Court. Highest appellate court in 
Maine and Massachusetts. 
Supreme law of the land. See Supremacy clause. 
Supreme power. The highest authority in a state, all 
other powers in it being inferior thereto. 
Supremus Is�priym�s/. Lat. Last; the last. 
Supremus est quem nemo sequitur I s�priym�s est 
kwem niymow sekw�t�r/. He is last whom no one 
follows. 
Sur Is[}rlsyur/. Fr. On; upon; over. In the titles of 
real actions "sur" was used to point out what the writ 
was founded upon. Thus, a real action brought by the 
owner of a reversion or seigniory, in certain cases where 
his tenant repudiated his tenure, was called "a writ of 
right sur disclaimer':' So, a writ of entry sur disseisin 
was a real action to recover the possession of land from 
a disseisor. 
Surcharge, n. An overcharge; an exaction, impost, or 
encumbrance beyond what is just and right, or beyond 
one's authority or power .. Term may also refer to a 
second or further mortgage. 
The amount with which a court may charge a fiduci
ary who has breached his trust through intentional or 
negligent conduct. The imposition of personal liability 
on a fiduciary for such conduct. 
Overprint on a stamp that changes the denomination. 
An additional tax or cost onto an existing tax, cost, or 
charge. See Surtax. 
Surcharge, v. The imposition of personal liability on a 
fiduciary for wilful or negligent misconduct in the ad
ministration of his fiduciary duties. 
In equity practice, to show that a particular item, in 
favor of the party surcharging, ought to have been 
included, but was not, in an account which is alleged to 
be settled or complete. To prove the omission of an item 
from an account which is before the court as complete, 
which should be inserted to the credit of the party 
surcharging. Perkins v. Hart, 24 U.S. 237, 6 L.Ed. 463. 
The imposition of an additional tax, impost, or cost. 
See Surtax. 
In old English law, to put more cattle upon a common 
than the herbage will sustain or than the party has a 
right to do. 3 Bl.Comm. 237. 
Second surcharge. In old English law, the surcharge of 
a common a second time, by the same defendant against 
whom the common was before admeasured, and for 
which the writ of second surcharge was given by the 
statute of Westminster, 2. 3 Bl.Comm. 239. 
Surcharge and falsify. This phrase, as used in the 
courts of chancery, denotes the liberty which these 
courts will occasionally grant to a plaintiff, who disputes 
an account which the defendant alleges to be settled, to 
scrutinize particular items therein without opening the 
entire account. The showing an item for which credit 
SURETY 
ought to have been given, but was not, is to surcharge 
the account; the proving an item to have been inserted 
wrongly is to falsify the account. 
Sur cui ante divortium Is�r k(yuw)ay rentiy d�v6r
sh(iy�m/. See Cui ante divortium. 
Sur cui in vita Is�r k(yuw)ay in vayt�/. A writ that lay 
for the heir of a woman whose husband had aliened her 
land in fee, and she had omitted to bring the writ of cui 
in vita for the recovery thereof; in which case her heir 
might have this writ against the tenant after her de
cease. See Cui in vita. 
Sur disclaimer I s�r d�skleym�r I. A writ in the nature 
of a writ of right brought by the lord against a tenant 
who had disclaimed his tenure, to recover the land. 
Surdus Is[}rd�s/. Lat. In the civil law, deaf; a deaf 
person. Surdus et mutus, a deaf and dumb person. 
Surenchere Isyuronshehr/. In French law, a party de
sirous of repurchasing property at auction before the 
court, can, by offering one-tenth or one-sixth, according 
to the case, in addition to the price realized at the sale, 
oblige the property to be put up once more at auction. 
This bid upon a bid is called a "surenchere." 
Surety. One who at the request of another, and for the 
purpose of securing to him a benefit, becomes respon
sible for the performance by the latter of some act in 
favor of a third person, or hypothecates property as 
security therefor. One who undertakes to pay money or 
to do any other act in event that his principal fails 
therein. A person who is primarily liable for payment 
of debt or performance of obligation of another. Branch 
Banking and Trust Co. v. Creasy, 301 N.C. 44, 269 S.E.2d 
117, 122. One bound with his principal for the payment 
of a sum of money or fQr the performance of some duty 
or promise and who is entitled to be indemnified by 
some one who ought to have paid or performed if pay
ment or performance be enforced against him. Term 
includes a guarantor. U.C.C. § 1-201(40). See also 
Suretyship; Suretyship, contract of. 
Guarantor and surety compared. A surety and guaran
tor have this in common, that they are both bound for 
another person; yet there are points of difference be
tween them. A surety is usually bound with his princi
pal by the same instrument, executed at the same time 
and on the same consideration. He is an original prom
isor and debtor from the beginning, and is held ordinari
ly to every known default of his principal. On the other 
hand, the contract of guarantor is his own separate 
undertaking, in which the principal does not join. It is 
usually entered into before or after that of the principal, 
and is often founded on a separate consideration from 
that supporting the contract of the principal. The origi
nal contract of the principal is not the guarantor's 
contract, and the guarantor is not bound to take notice 
of its nonperformance. The surety joins in the same 
promise as his principal and is primarily liable; the 
guarantor makes a separate and individual promise and 
is only secondarily liable. His liability is contingent on 
the default of his principal, and he only becomes abso-

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SURETY 
lutely liable when such default takes place and he is 
notified thereof. "Surety" and "guarantor" are both 
answerable for debt, default, or miscarriage of another, 
but liability of guarantor is, strictly speaking, secondary 
and collateral, while that of surety is original, primary, 
and direct. In case of suretyship there is but one 
contract, and surety is bound by the same agreement 
which binds his principal, while in case of guaranty 
there are two contracts, and guarantor is bound by 
independent undertaking. Howell v. Commissioner of 
Internal Revenue, C.C.A.8, 69 F.2d 447, 450. A surety is 
an insurer of the debt or obligation of another; a guar
antor is an insurer of the solvency of the principal 
debtor or of his ability to pay. Under U.C.C., term 
"surety" includes a guarantor. § 1-201(40). See also 
Guarantor. 
Surety bond. See Bond. 
Surety company. A company, usually incorporated, 
whose business is to assume the responsibility of a 
surety on the bonds of officers, trustees, executors, 
guardians, etc., in consideration of a fee proportioned to 
the amount of the security required. 
Surety insurance. This phrase is generally used as 
synonymous with "guaranty insurance." 
Surety of the peace. A species of preventive justice, 
and consists in obliging those persons whom there is a 
probable ground to suspect of future misbehavior, to 
stipulate with, and to give full assurance to, the public 
that such offense as is apprehended shall not take place, 
by finding pledges or securities for keeping the peace, or 
for their good behavior. 
Suretyship. The relationship among three parties 
whereby one person (the surety) guarantees payment of 
a debtor's debt owed to a creditor or acts as a co-debtor. 
Generally speaking, "the relation which exists where 
one person has undertaken an obligation and another 
person is also under an obligation or other duty to the 
obligee, who is entitled to but one performance, and as 
between the two who are bound, one rather than the 
other should perform." Restatement of Security, § 82 
(1941). See also Surety; Suretyship, contract of. 
Suretyship, contract of. Contract whereby one party 
engages to be answerable for debt, default, or miscar
riage of another and arises when one is liable to pay 
debt or discharge obligation, and party is entitled to 
indemnity from person who should have made the pay
ment in the first instance before surety was so com
pelled. A contract whereby one person engages to be 
answerable for the debt, default, or miscarriage of an
other. An accessory promise by which a person binds 
himself for another already bound, and agrees with the 
creditor to satisfy the obligation, if the debtor does not. 
A lending of credit to aid a principal having insufficient 
credit of his own; the one expected to pay, having the 
primary obligation, being the "principal," and the one 
bound to pay, if the principal does not, being the "sure
ty." See also Surety. 
1442 
Suretyship defenses. Defenses of a surety against the 
creditor that are dependent on the surety's status as 
such and that are tied to the conduct of the creditor that 
alters or modifies the principal debtor's obligation or 
impairs collateral for the obligation. 
Surface. This term, when used in law, is seldom, if ever, 
limited to mere geometrical superficies, although when 
used without any qualifying phrase in a deed, it ordi
narily signifies only the superficial part of land. And 
when employed in connection with mining, it usually 
means that part of the earth or geologic section lying 
over the minerals in question, unless the contract or 
conveyance otherwise defines it. Thus, where the sur
face is granted to one and the underlying coal to anoth
er, the "surface" includes the soil and waters which lie 
above and are superincumbent on the coal. Neverthe
less, a conveyance of the "surface," except the oil and 
gas rights in the land, may be deemed, under certain 
circumstances, to constitute a conveyance of all the land 
(including coal deposits), except only the oil and gas 
rights specifically reserved. 
The term "surface," when used as the subject of a 
conveyance, is not a definite one capable of a definition 
of universal application, but is susceptible of limitation 
according to the intention of the parties using it; and in 
determining its meaning, regard may be had, not only to 
the language of the deed in which it occurs, but, also to 
the situation of the parties, the business in which they 
were engaged, and to the substance of the . transaction. 
Surface rights. A right or easement granted with min
eral rights, enabling the possessor of the mineral rights 
to drill or mine through the surface. 
Surface waters. See Water. 
Surgeon. One whose profession or occupation is to cure 
diseases, defects, or injuries of the body by manual 
operation; one who practices surgery. 
Surgeon General. The chief medical officer of the Unit
ed States Public Health Service. 
Surgery. Greek words signifying the hand and work. 
Originally, it was part of the profession of barbers, but 
later was taken up by physicians and now is recognized 
as that branch of medical science which treats of me
chanical or operative measures for healing diseases, 
deformities, disorders, or injuries. State ex reI. Beck v. 
Gleason, 148 Kan. 1, 79 P.2d 911. 
The practice of medicine, in contradistinction to the 
practice of surgery, denotes the treatment of disease by 
the administration of drugs or other sanative sub
stances. There cannot however be a complete separa
tion between the practice of medicine and surgery; the 
principles of both are the same throughout, and no one 
is qualified to practice either who does not properly 
understand the fundamental principles of both. 
Surmise. Idea based on weak evidence, conjecture. 
Formerly where a defendant pleaded a local custom, 
for instance, a custom of the city of London, it was 
necessary for him to "surmise," that is, to suggest that 
such custom should be certified to the court by the

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1443 
mouth of the recorder, and without such a surmise the 
issue was to be tried by the country as other issues of 
fact are. 
Something offered to a court to move it to grant a 
prohibition, audita querela, or other writ grantable 
thereon. 
In ecclesiastical law, an allegation in a libel. A collat
eral surmise is a surmise of some fact not appearing in 
the libel. 
Sur mortgage /s�r morg:lj/. Upon a mortgage. In some 
states the method of enforcing the security of a mort
gage, upon default, is by a writ of 'scire facias sur 
mortgage," which requires the defendant (mortgagor) to 
show cause why it should not be foreclosed. 
Surname. The family name; the name over and above 
the Christian name. The part of a name which is not 
given in baptism. The name of a person which is 
derived from the common name of his parents. In re 
Faith's Application, 22 N.J.Misc. 412, 39 A.2d 638, 640. 
The last name; the name common to all members of a 
family. 
Surplice fees / s�rpbs fiyz/. In English ecclesiastical 
law, fees payable on ministerial offices of the church; 
such as baptisms, funerals, marriages, etc. 
Surplus. That which remains of a fund appropriated for 
a particular purpose; the remainder of a thing; the 
overplus; the residue. Ordinarily, surplus means resi
due or excess of assets after liabilities, including capital, 
have been deducted. American Life & Acc. Ins. Co. v. 
Love, Mo., 431 S.W.2d 177, 180. 
A general term in corporate accounting that usually 
refers to either the excess of assets over liabilities or 
that amount further reduced by the stated capital repre
sented by issued shares. Surplus has a more definite 
meaning when combined with a descriptive adjective 
from par value statutes, e.g., earned surplus, capital 
surplus or reduction surplus. 
As to surplus Earnings; Profit, and Water, see those 
titles. 
Accumulated surplus. That surplus which results from 
the accumulation of profits. 
Acquired surplus. Surplus acquired by the purchase of 
one business by another. 
Appreciation surplus. Surplus which results from the 
revaluation of the assets of a business. 
Appropriated surplus. That portion of surplus which is 
earmarked or set aside for a specific purpose. 
Capital surplus. All surplus which does not arise from 
the accumulation of profits. It may be created by a 
financial reorganization or by gifts to the corporation. 
The entire surplus of a corporation other than its earned 
surplus. 
Earned surplus. The portion of the surplus of a corpora
tion equal to the balance of its net profits, income, gains 
and losses from the date of incorporation, or from the 
latest date when a deficit was eliminated by an applica-
SURPRISE 
tion of its capital surplus or stated capital or otherwise, 
after deducting subsequent distributions to shareholders 
and transfers to stated capital and capital surplus to the 
extent such distributions and transfers are made out of 
earned surplus. Earned surplus also includes also any 
portion of surplus allocated to earned surplus in merg
ers, consolidations or acquisitions of all or substantially 
all of the outstanding shares or of the property and 
assets of another corporation, domestic or foreign. See 
also Earned surplus. 
Initial surplus. That surplus which appears on the 
financial statement at the commencement of an ac
counting period and which does not reflect the opera
tions for the period covered by the statement. 
Paid-in surplus. Surplus paid in by stockholders as 
contrasted to earned surplus that arises from profits. 
Such being the difference between the par value and 
price received for the stock by the corporation. If the 
stock is no-par; it is the amount received that is allocat
ed to paid-in surplus. See also Paid-in-capital. 
Reserved surplus. See Appropriated surplus, above. 
Restricted surplus. That portion of surplus which is 
limited or restricted as to its use. 
Surplusage. Extraneous, impertinent, superfluous, or 
unnecessary matter. Matter in any instrument which is 
unnecessary to its meaning and does not affect its validi
ty; whatever is extraneous, impertinent, superfluous or 
unnecessary, and in procedure means matter which is 
not necessary or relevant to the case. Morrow v. Mor
row, Tex.Civ.App., 382 S.W.2d 785, 786. 
The remainder or surplus of money left. See also 
Surplus. 
Pleading. Allegations of matter wholly foreign and 
impertinent to the cause. All matter beyond the cir
cumstances necessary to constitute the action. Any 
allegation without which the pleading would yet be 
adequate. On motion, the court may order stricken 
from the pleadings any insufficient defense, redundant, 
immaterial, or scandalous matter. Fed.R.Civil P. 12(0. 
Surplusagium non nocet /s�rpl:lseyj(iY):lm non nOs:lt/. 
Surplusage does no harm. 
Surprise. Act of taking unawares; sudden confusion or 
perplexity. In its legal acceptation, denotes an unfore
seen disappointment against which ordinary prudence 
would not have afforded protection. 
On motion and upon such terms as are just, the court 
may relieve a party or his legal representative from a 
final judgment, order, or proceeding because of surprise. 
Fed.R.Civil P. 60(b). 
Equitable relief The act by which a party who is 
entering into a contract is taken unawares, by which 
sudden confusion or perplexity is created, which renders 
it proper that a court of equity should relieve the party 
so surprised. The situation in which a party is placed 
without any default of his own, which will be injurious 
to his interests.

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SURPRISE . 
Anything which happens without the agency or fault 
of the party affected by it, tending to disturb and con
fuse the judgment, or to mislead him, of which the 
opposite party takes an undue advantage, is in equity a 
surprise, and one species of fraud for which relief is 
granted. There does not seem anything technical or 
peculiar in the word "surprise". Where a court relieves 
on the ground of surprise, it does so upon the ground 
that the party has been taken unawares, and that he 
has acted without due deliberation, and under confused 
and sudden impressions. 
Ground for new trial. As a ground for a new trial, that 
situation in which a party is unexpectedly placed with
out fault on his part, which will work injury to his 
interests. He must show himself to have been diligent 
at every stage of the proceedings, and that the event was 
one which ordinary prudence could not have guarded 
against. A situation or result produced, having a sub
stantive basis of fact and reason, from which the court 
may justly deduce, as a legal conclusion, that the party 
will suffer a judicial wrong if not relieved from his 
niistake. The general rule is that when a party or his 
counsel is "taken by surprise," in a material point or 
circumstance which could not have been anticipated, 
and when want of skill, care, or attention cannot be 
justly imputed, and injustice has been done, a new trial 
should be granted. 
Surrebutter /s;}r�b�t�r/. In common law pleading, the 
plaintiffs answer of fact to the defendant's rebutter. It 
is governed by the same rules as the replication. It is 
no longer required under modern pleading. 
Surrejoinder / s;}r�j6ynd�r /. In common law pleading, 
the plaintiffs answer of fact to the defendant's rejoin
der. It is governed in every respect by the same rules as 
the replication. 
Surrender. To give back; yield; render up; restore; 
and in law, the giving up of an estate to the person who 
has it in reversion or remainder, so as to merge it in the 
larger estate. A yielding up of an estate for life or years 
to him who has an immediate estate in reversion or 
remainder, wherein the estate for life or years may 
drown by mutual agreement between them. To relin
quish, to deliver into lawful custody, or to give up 
completely in favor of another. First Nat. Bank of 
Martinsville v. Cobler, 215 Va. 852, 213 S.E.2d 800, 803, 
96 A.L.R.3d 1137. 
In commercial law, a means whereby a holder dis
charges a party's liability on an instrument by deliver
ing possession of the instrument with the intention to 
release the person from liability. The term also refers 
to the act of a holder of a negotiable document in 
presenting the document to the bailee upon taking pos
session of the goods. 
In old English law, yielding up a tenancy in a copy
hold estate to the lord of the manor for a specified 
purpose. 
In landlord-tenant law, surrender exists when the 
tenant voluntarily gives up possession of the premises 
prior to the full term of the lease and the landlord 
1444 
accepts possession with intent that the lease be termi
nated. It differs from "abandonment," as applied to 
leased premises, inasmuch as the latter is simply an act 
on the part of the lessee alone; but to show a surrender, 
a mutual agreement between lessor and lessee that the 
lease is terminated must be clearly proved. See Surren
der by operation of law. 
Surrender by bail. The act, by bail or sureties in a 
recognizance, of giving up their principal again into 
custody, in their own discharge. 
Surrender by operation of law. This phrase is proper
ly applied to cases where the tenant for life or years has 
been a party to some act the validity of which he is by 
law af terwards estopped from disputing, and which 
would not be valid if his particular estate continued to 
exist. An implied surrender occqrs when an estate 
incompatible with the existing estate is accepted, or the 
lessee takes a new lease of the same lands. 
Any acts which are equivalent to an agreement on the 
part of the tenant to abandon, and on the part of the 
landlord to resume the possession of the demised premis
es, amount to a "surrender by operation of law." The 
rule may be said to be that a surrender is created by 
operation of law, when the parties to a lease do some act 
so inconsistent with the subsisting relation of landlord 
and tenant as to imply that they have both agreed to 
consider the surrender as made. 
Surrenderee. The person to whom a surrender is made. 
Surrender of a preference. In bankruptcy practice, the 
surrender to the assignee in bankruptcy, by a preferred 
creditor, of anything he may have received under his 
preference and any advantage it gives him, which he 
must do before he can share in the dividend. The word 
as generally defined may denote either compelled or 
voluntary action. Keppel v. Bank, 197 U.S. 356, 25 S.Ct. 
443, 49 L.Ed. 790. See Bankruptcy Code, § 547. 
Surrender of charter. A corporation created by charter 
may give up or "surrender" its charter to the people, 
unless the charter was granted under a statute, impos
ing indefeasible duties on the bodies to which it applies. 
Surrender of copyhold. The mode of conveying or 
transferring copyhold property from one person to an
other by means of a surrender, which consisted in the 
yielding up of the estate by the tenant into the hands of 
the lord for such purposes as were expressed in the 
surrender. The process in most manors was for the 
tenant to come to the steward, either in court or out of 
court, or else to two customary tenants of the same 
manor, provided there was a custom to warrant it, and 
there, by delivering up a rod, a glove, or other symbol, 
as the custom directs, to resign into the hands of the 
lord, by the hands and acceptance of his steward, or of 
the said two tenants, all his interest and title to the 
estate, in trust, to be again granted out by the lord to 
such persons and for such uses as were named in the 
surrender, and as the custom of the manor would war
rant. See Admittance; Copyhold.

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1445 
Surrender of criminals. The act by which the public 
authorities deliver a person accused of a crime, and who 
is found in their jurisdiction, to the authorities within 
whose jurisdiction it is alleged the crime has been com
mitted. See Extradition; Rendition. 
Surrenderor. One who makes a surrender. One who 
yielded up a copyhold estate for the purpose of convey
ing it. 
Surrender to uses of will. Formerly a copyhold inter
est would not pass by will unless it had been surren
dered to the use of the wilL By English St. 55 Geo. III, 
c. 192, this was no longer necessary. 
Surrender value. In insurance, the current value of a 
policy which will be paid to the policyholder when he 
elects to surrender the policy. 
Surreptitious /s�hr;)ptish;)s/. Stealthily or fraudulently 
done, taken away, or introduced. 
Surrogate / s;)hr;)g;)t/. The name given in some of the 
states to the judge or judicial officer who has jurisdiction 
over the administration of probate matters, guardian
ships, etc. In other states he is called judge of probate, 
register, judge of the orphans' court, etc. He is ordinari
ly a county officer, with a local jurisdiction limited to his 
county. See Surrogate court. 
In English law, one that is substituted or appointed in 
the room of another, as by a bishop, chancellor, judge, 
etc.; especially an officer appointed to dispense licenses 
to marry without banns. 
Surrogate court. Name of court in certain states with 
jurisdiction similar to that of probate court. 
In New York the Surrogate's Court has jurisdiction 
over all actions and proceedings relating to the affairs of 
decedents, probate of wills, administration of estates and 
actions and proceedings arising thereunder or pertain
ing thereto, guardianship of the property of minors, and 
such other actions and proceedings, not within the ex
clusive jurisdiction of the supreme court, as may be 
provided by law. 
Surrogate mother. A woman who is artificially insemi
nated with the semen of another woman's husband. 
She conceives a child, carries the child to term, and 
after the birth assigns her parental rights to the birth 
father and his wife. Matter of Baby M, 109 N.J. 396, 
537 A.2d 1227, 1234. See Surrogate parenting agreement. 
Surrogate parent. A person other than a parent who 
stands in loco parentis to the child by virtue of his or 
her voluntary assumption of parental rights and respon
sibilities. The person appointed by a juvenile court as a 
child's advocate in the educational decision-making pro
cess in place of the child's natural parents or guardian. 
Surrogate parenting agreement. Agreement wherein 
a woman agrees to be artificially inseminated with the 
semen of another woman's husband; she is to conceive a 
child, carry the child to term and after the birth, assign 
her parental rights to the birth father and his wife. 
The intent of the contract is that the child's birth 
mother will thereafter be forever separated from her 
SURVEY 
child. The wife is to adopt the child, and she and the 
birth father are to be regarded as the child's parents for 
all purposes. Such contracts have been held illegal and 
invalid where a woman agrees to act as a surrogate for 
payment of money with a binding agreement to assign 
her parental rights to her child. Matter of Baby M, 109 
N.J. 396, 537 A.2d 1227, 1234-35. 
Surround. To inclose on all sides; to encompass. 
Surrounding circumstances. Such as may permit in
ference of culpability on part of defendant under res 
ipsa loquitur rule, refers not to circumstances directly 
tending to show lack of care, but· only to mere neutral 
circumstances of control and management by defendant, 
which may, when explained, appear to be entirely con
sistent with due care. Hepp v. Quickel Auto & Supply 
Co., 37 N.M. 525, 25 P.2d 197. 
Sursise /s;)rsayz/. L. Fr. In old English law, neglect; 
omission; default; cessation. 
Sursum reddere / s;)rs;)m red;)riy /. Lat. In old convey
ancing, to render up; to surrender. 
Sursumredditio /s�rs;)mr ;)dish(iy)ow/. Lat. A surren
der. 
Surtax. Any tax that is levied in addition to some 
"normal" tax rate. An additional tax on what has 
already been taxed. A tax on a tax; for example: if 
person must pay a hundred dollar tax on a one thousand 
dollar income (ten percent), a ten percent surtax would 
be ·an additional ten dollars, not an additional hundred 
dollars. 
Surtax exemption. The portion of taxable income not 
subject to the surtax. 
Surveillance /s;)rvey(l);)ns/. Oversight, superinten
dence, supervision. Police investigative technique in
volving visual or electronic observation or listening di
rected at a person or place (e.g., stakeout, tailing of 
suspects, wiretapping). Its objective is to gather evi
dence of a crime or merely to accumulate intelligence 
about suspected criminal activity. See also Eaves
dropping; Pen register; Wiretapping. 
Survey, v. To survey land is to ascertain corners, bound
aries, and divisions, with distances and directions, and 
not necessarily to compute areas included within de
fined boundaries. To appraise as to value or condition. 
Survey, n. The process by which a parcel of land is 
measured and its boundaries and contents ascertained; 
also a map, plat, or statement of the result of such 
survey, with the courses and distances and the quantity 
of the land. See also Corner (Lost corner); Go vernment 
survey system; Meander lines. 
An investigation or examination. In insurance law, 
the term has acquired a general meaning, inclusive of 
what is commonly called the "application," which con
tains the questions propounded on behalf of the compa
ny, and the answers of the assured. 
Polling or questioning of public regarding their views 
on issues, candidates, etc.

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SURVEY 
Survey of a vessel. A statement of its present condition. 
Chicago S. S. Lines v. U. S. Lloyds, C.C.A.Ill., 12 F.2d 
733, 737. A public document, looked to both by under
writers and owners, as affording the means of ascertain
ing, at the time and place, the state and condition of the 
ship and other property at hazard. 
Topographical survey. A survey of land to determine its 
elevation levels in relation to sea level. 
Surveyor. One who makes surveys, determines area of 
portion of earth's surface, length and direction of bound
ary lines, and contour of surface. 
Surveyor of the port. Formerly, a revenue officer of 
the United States appointed for each of the principal 
ports of entry, whose duties chiefly concerned the impor
tations at his station and the determination of their 
amount and valuation. Such office was abolished in 
1953. See Customs Service. 
Survival actions. Term refers to actions for personal 
injuries which by statute survives death of injured per
son. Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20, 23. 
An action or cause of action which does not become 
extinguished with the death of the party claiming the 
action. See Survival statutes; Wrongful death statutes. 
Survival statutes. Statutory provision for the survival, 
after death of the injured person, of certain causes of 
action for injury to the person whether death results 
from the injury or from some other cause. The cause of 
action which survives is for the wrong to the injured 
person. A type of statute, that allows an action to 
continue, notwithstanding the death of the one who 
originally had a right to bring the action. Such a right 
usually may be enforced by or against the estate of the 
decedent. Some survival statutes cover death of both 
injured party (plaintiff) and death of defendant. See 
also Wrongful death statutes. 
Survive. To continue to live or exist beyond the life, or 
existence of; to live through in spite of; live on after 
passing through; to remain alive; exist in force or 
operation beyond any period or event specified. 
Surviving. Remaining alive. Living beyond the life of 
another or beyond the happening of some event so as to 
be entitled to a distribution of property or income. See 
Survival actions. 
Surviving corporation. The corporation which, 
through a merger or takeover, acquires the assets and 
liabilities of another corporation. 
Surviving spouse. The spouse who outlives (survives) 
the other spouse. Term commonly found in statutes 
dealing with probate, administration of estates and es
tate and inheritance taxes. 
A taxpayer classification which, generally, describes 
an unmarried taxpayer whose spouse died within either 
of the past two taxable years and who provides a home 
for his dependent(s). I.R.C. § 2(a). 
Survivor. One who survives another; one who outlives 
another; one who lives beyond some happening; one of 
two or more persons who lives after the death of the 
1446 
other or others. The word "survivor," however, in con
nection with the power of one of two trustees to act, is 
used not only with reference to a condition arising 
where one of such trustees dies, but also as indicating a 
trustee who continues to administer the trust after his 
cotrustee is disqualified, has been removed, renounces, 
or refuses to act. 
Survivorship. The living of one of two or more persons 
after the death of the other or others. Survivorship is 
where a person becomes entitled to property by reason 
of his having survived another person who had an 
interest in it. United States v. Jacobs, 306 U.S. 363, 59 
S.Ct. 551, 555, 83 L.Ed. 763. A feature of joint tenancy 
and tenancy by the entirety, whereby the surviving 
co-owner takes the entire interest in preference to heirs 
or devisees of the deceased co-owner. See also Presump
tion of survivorship; Tenancy (Joint tenancy; Tenancy by 
the entirety). 
Survivorship annuity. Type of annuity contract which 
provides for payments beyond the life of the annuitant, 
as for example, to a widow of the annuitant. 
Susceptible. Capable. 
Suspect. To have a slight or even vague idea concern
ing;-not necessarily involving knowledge or belief or 
likelihood. "Suspect" with reference to probable cause 
as grounds for arrest without warrant is commonly used 
in place of the word believe. A person reputed or sus
pected to be involved in a crime. See also Probable 
cause; SuspiCion. 
Suspect classifications. The Court will employ the 
"strict scrutiny" standard under the Equal Protection 
Clause in determining the legitimacy of classifications 
that are based upon a trait which itself seems to contra
vene established constitutional principles so that any 
purposeful use of the classification may be deemed "sus
pect." Examples include race, sex, national origin and 
alienage (with exceptions). Matter of C.H. , 210 Mont. 
184, 683 P.2d 931, 938. 
Suspend. To interrupt; to cause to cease for a time; to 
postpone; to stay, delay, or hinder; to discontinue tem
porarily, but with an expectation or purpose of resump
tion. As a form of censure or discipline, to forbid a 
public officer, attorney, employee, or ecclesiastical per
son from performing his duties or exercising his func
tions for a more or less definite interval of time. 
To postpone, as a judicial sentence. To cause a tempo
rary cessation, as of work by an employee; to lay off. 
See also Suspension. 
Suspended sentence. A conviction of a crime followed 
by a sentence that is given formally, but not actually 
served. A suspended sentence in criminal law means in 
effect that defendant is not required at the time sen
tence is imposed to serve the sentence. Richards v. 
Crump, 260 S.C. 133, 194 S.E.2d 575, 576. See also 
Sentence (Suspension of sentence). 
Suspense. When a rent, profit a prendre, and the like, 
are, in consequence of the unity of possession of the 
rent, etc., of the land out of which they issue, not in esse

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1447 
for a time, they are said to be in suspense, tunc dormi
unt; but they may be revived or awakened. 
Suspension. A temporary stop, a temporary delay, in
terruption, or cessation. Thus, we speak of a suspension 
of the writ of habeas corpus, of a statute, of the power of 
alienating an estate, of a person in office, etc. 
A temporary cutting off or debarring one, as from the 
privileges of one's profession. 
Temporary withdrawal or cessation from employment 
as distinguished from permanent severance accom
plished by removal; "removal" being, however, the 
broader term, ' which may on occasion include suspen
sion. 
Ecclesiastical law. An ecclesiastical censure, by which 
a spiritual person is either interdicted the exercise of his 
ecclesiastical function or hindered from receiving the 
profits of his benefice. It may be partial or total, for a 
limited time, or forever, when it is called "deprivation" 
or "amotion ." 
Suspension of a right. The act by which a party is 
deprived of the exercise of his right for a time. A 
temporary stop of a right, a partial extinguishment for a 
time, as contrasted with a complete extinguishment, 
where the right is absolutely dead. Suspension of a 
right in an estate is a temporary or partial withholding 
of it from use or exercise. It differs from extinguish
ment, because a suspended right is susceptible of being 
revived, which is not the case where the right was 
extinguished. 
Suspension of arms. An agreement between belliger
ents, made for a short time or for a particular place, to 
cease hostilities between them. See also Armistice. 
Suspension of a statu te. A temporary termination of its 
power of law. The suspension of a statute for a limited 
time operates so as to prevent its operation for the time; 
but it has not the effect of a repeaL 
Suspension of business. These words in a statute con
template an interruption of ordinary business opera
tions, evidenced by some objective features. An inter
ruption of the ordinary course of business, other than a 
mere failure to meet maturing obligations. 
Suspensive condition. See Condition. 
Suspensory condition. See Condition. 
Sus. per coIl / S;lS. p�r k61/. An abbreviation of "suspen
datur per collum" / s�spendeyt:lr p�r k61:lm/, let him be 
hanged by the neck. Words formerly used in England 
in signing judgment against a prisoner who was to be 
executed; being written by the judge in the margin of 
the sheriffs calendar or list, opposite the prisoner's 
name. 4 BLComm. 403. 
Suspicion. The act of suspecting, or the state of being 
suspected; imagination, generally of something ill; dis
trust; mistrust; doubt. The apprehension of something 
without proof or upon slight evidence. Suspicion im
plies a belief or opinion based upon facts or circumstanc
es which do not amount to proof. 
SWAMP AND OVERFLOWED LANDS 
Suspicious character. In the criminal laws of some of 
the states, a person who is known or strongly suspected 
to be an habitual criminal, or against whom there is 
reasonable cause to believe that he has committed a 
crime or is planning or intending to commit one, or 
whose actions and behavior give good account of himself, 
and who may therefore be arrested or required to give 
security for good behavior. 
Sustain. To carry on; to maintain. To affirm, uphold 
or approve, as when an appellate court sustains the 
decision of a lower court. To grant, as when a judge 
sustains an objection to testimony or evidence, he or she 
agrees with the objection and gives it effect. 
To support; to warrant;-said of evidence in connec
tion with a verdict, decision, etc. 
To suffer; bear;· undergo. To endure or undergo 
without failing or yielding; to bear up under. 
Suthdure. The south door of a church, where canonical 
purgation was performed, and plaints, etc., were heard 
and determined. 
Sutler / s;ltl:lr / . A person who, as a business, follows an 
army and sells provisions and liquor to the troops. A 
small trader who follows an army and who is licensed to 
sell goods, especially edibles, to the soldiers. 
Suum cuique tribuere /s(y)uw:lm k(yuw)aykwiy tr:l
byuw:lriy /. Lat. To render to everyone his own. One 
of the three fundamental maxims of the law laid down 
by Justinian. 
Suus hreres /s(y)UW:lS hiriyz/. See Hreres. 
Suus judex /s(y)UW:lS juwdeks/. Lat. In old English 
law, a proper judge; a judge having cognizance of a 
cause. Literally, one's own judge. 
Suzerain /s(y)uwz(:l)r:ln/. In French and feudal law, the 
immediate vassal of the king; a crown vassal; a tenant 
in capite. A lord who possesses a fief whence other fiefs 
issue. Also spelled "suzereign." 
A nation that exercises political control over another 
nation in relation to which it is sovereign. 
Term is used as descriptive of relations, ill-defined and 
vague, which exist between powerful and dependent 
states; its very indefiniteness being its recommendation. 
While protecting and protected states tend to draw 
nearer, the reverse is true of suzerain and vassal states; 
a protectorate is generally the preliminary to incorpo
ration; suzerainty, to separation. 
It is said that suzerainty is title without corresponding 
power; protectorate is power without corresponding ti
tle. 
Swain; swainmote /sweyn(mowt) /. See Swein; Swein
mote. 
Swamp. Wet, spongy land; soft, low ground saturated 
with water, but not usually covered by it; marshy 
ground away from seashore. Campbell v. Walker, 137 
Or. 375, 2 P.2d 912, 914. 
Swamp and overflowed lands. Lands unfit for cultiva
tion by reason of their swampy character and requiring

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SWAMP AND OVERFLOWED LANDS 
drainage or reclamation to render them available for 
beneficial use. 
Swanimote. See Sweinmote. 
Swaps. The exchange of one security for another. A 
swap may be executed to change the maturities of a 
bond portfolio or the quality of the issues in a share or 
bond portfolio, or because investment objectives have 
shifted. Swap agreements are used by corporations and 
financial institutions to hedge against changes in inter
est and foreign exchange rates. 
Swarf-money. Warth-money; or guard-money paid in 
lieu of the service of castleward. 
Swatch. Commercially, a small sample of cloth from 
which suits, etc., are to be ordered. 
Swear. To put on oath; to administer an oath to a 
person. To take an oath; to become bound by an oath 
duly administered. To declare on oath the truth (of a 
pleading, etc.). See also Affirmation; False swearing; 
Oath. 
To use obscene or profane language. Its use in public 
places is an offense in many states. 
Swearing in. The administration of an oath as to a trial 
witness or to a public official or one about to become a 
public official, as in the case of a person who becomes a 
judge. See Oath. 
Swearing the peace. Showing to a magistrate that one 
has just cause to be afraid of another in consequence of 
his menaces, in order to have him bound over to keep 
the peace. 
Sweat equity. Equity created in property through labor 
of owner in making improvements to property. 
Sweating. The questioning of a person in custody 
charged with crime with intent to obtain information 
concerning his connection therewith or knowledge there
of by plying him with questions, or by threats or other 
wrongful means, extorting information to be used 
against him. Such interrogation is unconstitutional. 
See Interrogation; Miranda Rule. 
Sweat shop. A business whose employees are over
worked and paid low wages, or a place where employees 
are required to work to an extent hardly endurable, and 
in the public mind the term imputes unsavory and 
illegal business practices. Masters v. Sun Mfg. Co., 237 
Mo.App. 240, 165 S.W.2d 701, 703. Sweat shops resulted 
in the enactment of wage and hour laws, child labor 
laws, minimum wage laws, etc. 
Sweeping. Comprehensive; including in its scope many 
persons or objects; as, a sweeping objection. 
Sweepstakes. Term initially referring to a type of horse 
race in which the winner's prize was the sum of the 
stakes which subscribers agreed to pay for each horse 
nominated. Stone v. Clay, C.A.I1l., 61 Fed. 889. Cur
rently refers generally to contests, often conducted for 
promotional purposes, which award prizes based on the 
random selection of entries. Federal law prohibits con
ducting a scheme for obtaining money or property 
through the mail by means of false representations. 39 
V.S.C.A. § 3005. See also Lottery. 
1448 
Sweeteners. Inducement to a brokerage firm to enter 
into an underwriting arrangement with an issuer. 
Sweetheart contract. Derogatory term used to describe 
a contract between a union and an employer in which 
concessions are granted to one or to the other for pur
pose of keeping a rival union out. 
Swein Isweyn/. In old English law, a freeman or free
holder within the forest. 
Sweinmote Isweynmowt /. In forest law, a court holden 
before the verderors, as judges, by the stewart of the 
sweinmote, thrice in every year, the sweins or freehold
ers within the forest composing the jury. Its principal 
jurisdiction was-First, to inquire into the oppressions 
and grievances committed by the officers of the forest; 
and, secondly, to receive and try presentments certified 
from the court of attachments in offenses against vert 
and venison. 3 Bl.Comm. 72. 
Swell. To enlarge or increase. In an action of tort, 
circumstances of aggravation may "swell" the damages. 
Swift v. Tyson Case. An early case decided in 1842 by 
the U.S. Supreme Court, 41 (16 Pet.) U.S. 1, 10 L.Ed. 
865, which held that federal courts in suits founded on 
diversity of citizenship were free to exercise an indepen
dent judgment in matters of "general" law; i.e. matters 
not at all dependent upon local statutes or local usages 
of a fixed and permanent operation. Swift v. Tyson was 
overruled by Erie RR Co. v. Tompkins, 304 U.S. 64, 58 
S.Ct. 817, 82 L.Ed. 1188 which requires the application 
of state law in diversity actions under most circumstanc
es. See Erie v. Tompkins; Federal common law. 
Swift witness. A term colloquially applied to a witness 
who is unduly zealous or partial for the side which calls 
him, and who betrays his bias by his extreme readiness 
to answer questions or volunteer information. 
Swindle. A scheme for cheating or defrauding. 
Swindler. A cheat; one guilty of defrauding divers 
persons. 
Swindling. Cheating and defrauding with deliberate 
artifice. Usually applied to a transaction where the 
guilty party procures the delivery to him, under a pre
tended contract, of the personal property of another, 
with the felonious design of appropriating it to his own 
use. The acquisition of any personal or movable proper
ty, money, or instrument of writing conveying or secur
ing a valuable right, by means of some false or deceitful 
pretense or device, or fraudulent representation, with 
intent to appropriate the same to the use of the party so 
acquiring, or of destroying or impairing the rights of the 
party justly entitled to the same. 
To make out offense of "cheating" and "swindling" by 
false representations, government must prove that rep
resentations were made, that representations were 
knowingly and designedly false, that such were made 
with intent to defraud, that such did defraud, that 
representations related to existing fact or past event, 
and that party to whom representations were made, 
relying on their truth, was thereby induced to part with

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1449 
his property. See e.g. 18 U. S.C.A. §§ 1341, 1342 (mail 
swindles). 
See False pretenses; Fraud. 
Switch-yard doctrine. The doctrine that there can be 
no implied license to the public to use the track of a 
railroad company within the limits of its switch-yard. 
Swoling of land. Term in old English law, meaning so 
much land as one's plow can till in a year; a hide of 
land. 
Sworn. Frequently used interchangeably with "veri
fied." See Affirmation; Oath; Swear; Verify. 
Sworn brothers. In old English law, persons who, by 
mutual oaths, covenant to share in each other's for
tunes. 
Sworn clerks in chancery. Certain officers in the 
English court of chancery, whose duties were to keep the 
records, make copies of pleadings, etc. Their offices 
were abolished by St. 5 & 6 Vict., c. 103. 
Sworn statement. Listing by contractor-builder of all of 
his suppliers and sub-contractors and their respective 
bids. Such is required by lending institution for interim 
construction financing. 
Syb and som I sib rend sowm /. A Saxon form of greet
ing, meaning peace and safety. 
Syllabus. An abstract; a headnote; a note prefixed to 
the report or opinion of an adjudged case, containing an 
epitome or brief statement of the rulings of the court 
upon the point or points decided in the case. The 
syllabus (in Supreme Court decisions) constitutes no part 
of the opinion of the Court but is prepared by the 
Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber & Lumber Co., 200 
U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. Ordinari
ly, where a headnote, even though prepared by the 
court, is given no special force by statute or rule of 
court, the opinion is to be looked to for the original and 
authentic statement of the grounds of decision. Bur
bank v. Ernst, 232 U.S. 162, 34 S.Ct. 299, 58 L.Ed. 551. 
See also Digest; Headnote. 
Syllogism. In logic, the full logical form of a single 
argument. It consists of three propositions (two premis
es and the conclusion), and these contain three terms, of 
which the two occurring in the conclusion are brought 
together in the premises by being referred to a common 
class. 
Sylva credua Isilv;} siydyuw;}/. Lat. In ecclesiastical 
law, wood of any kind which was kept on purpose to be 
cut, and which, being cut, grew again from the stump or 
root. 
Symbiotic relationship. When the action of govern
ment and private actors is so intertwined as to consti
tute a "symbiotic relationship", their combined activi
ties will be viewed by the courts as constituting state 
involvement sufficient to invoke the "state action" doc
trine and thereby subject the private actor, in such 
circumstances, to constitutional obligation. Burton v. 
SYNDIC 
Wilmington Parking Authority, 38 Del.Ch. 266, 150 A.2d 
197 (1961). 
Symbolreography I simb;}liyogr;}fiy I. The art or cunning 
rightly to form and make written instruments. It is 
either judicial or extrajudicial; the latter being wholly 
occupied with such instruments as concern matters not 
yet judicially in controversy, such as instruments of 
agreements or contracts, and testaments or last wills. 
Symbolic delivery. The constructive delivery of the 
SUbject-matter of a sale or gift, where it is cumbersome 
or inaccessible, by the actual delivery of some article 
which is conventionally accepted as the symbol or repre
sentative of it, or which renders access to it possible, or 
which is evidence of the purchaser's or donee's title to it. 
Thus, a present gift of the contents of a box in a bank 
vault, accompanied by a transfer of the key thereto, is 
valid as a symbolical delivery. 
Symbolic speech. A person's conduct which expresses 
opinions or thoughts about a subject and which may or 
may not be protected by the First Amendment. Actions 
which have as their primary purpose the expression of 
ideas as in the case of students who wore black arm 
bands to protest the war in Viet Nam. Such conduct is 
generally protected under the First Amendment as 
"pure speech" because very little conduct is involved. 
Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 
733, 21 L.Ed.2d 731. However, not all such conduct is 
protected. The burning of a draft card was not protect
ed speech because of the government's substantial inter
est. U. S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 
L.Ed.2d 672. See Flag desecration. 
Symbolum animre I simb;}l;}m ren;}miy I. Lat. A mortu
ary, or soul scot. 
Symmetry. Due proportion of several parts of a body to 
each other; adaptation of the form or dimensions of the 
several parts of a thing to each other; harmonious 
relation of parts; conform ance; consistency; congruity; 
correspondence or similarity of form, dimensions, or 
parts on opposite sides of an axis, center, or a dividing 
plane. 
Symond's inn. Formerly an inn of chancery. 
Sympathy strike. A boycott. See Boycott; Strike. 
Synallagmatic contract Isin;}lregmret;}k kontrrekt/. In 
the civil law, a bilateral or reciprocal contract, in which 
the parties expressly enter into mutual engagements, 
each binding himself to the other. Such are the con
tracts of sale, hiring, etc. 
Syncopare. To cut short, or pronounce things so as not 
to be understood. 
Syndic Isind;}k/. In the civil law, an advocate or patron; 
a burgess or recorder; an agent or attorney who acts for 
a corporation or university; an actor or procurator; an 
assignee. The term corresponds very nearly with that 
of assignee under the common law. 
In English common law, an agent appointed by a 
corporation for the purpose of obtaining letters of guard
ianship and the like, to whom such letters were issued.

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SYNDIC 
In French law, the person who is commissioned by the 
courts to administer a bankruptcy. He fulfills the same 
functions as the trustee or assignee. Also, one who is 
chosen to conduct the affairs and attend to the concerns 
of a body corporate or community. In this sense the 
word corresponds to director or manager. 
In Louisiana, the assignee of a bankrupt. Also, one of 
several persons to be elected by the creditors of a succes
sion, for the purpose of administering thereon, whenever 
a succession has been renounced by the heirs, or has 
been accepted under the benefit of an inventory, and 
neither the beneficiary heirs, their attorney in fact, nor 
tutor will accept the administration and give the securi
ty required. 
Syndicalism /sind;}k;}liz;}m /. The theory, plan, or prac
tice of trade-union action which aims by the general 
strike and direct action to establish control by local 
organizations of workers over the means and processes 
of production. 
A form or development of trade-unionism, originating 
in France, which aims at the possession of the means of 
production and distribution, and ultimately at the con
trol of society and government, by the federated bodies 
of industrial workers, and which seeks to realize its 
purposes through the agency of general strikes and of 
terrorism, sabotage, violence, or other criminal means. 
Criminal syndicalism. Any doctrine or precept advocat
ing, teaching, or aiding and abetting the commission of 
crime, sabotage (defined in the act as willful and mali
cious physical damage or injury to physical property), or 
unlawful acts of force and violence or unlawful methods 
of terrorism, as a means of accomplishing a change in 
industrial ownership, or control, or effecting any politi
cal change. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 
625, 69 L.Ed. 1138; Whitney v. California, 274 U.S. 357, 
47 S.Ct. 641, 71 L.Ed. 1095. See also Criminal. 
Syndicate / sind;}k;}t/. An association of individuals, 
formed for the purpose of conducting and carrying out 
some particular business transaction, ordinarily of a 
financial character, in which the members are mutually 
interested. An organization formed for some temporary 
purpose, such as the organization of a real estate trust 
and the sale of shares to the public. Syndicates may 
exist as corporations or partnerships (either general or 
limited). 
A group of investment bankers who together under
write and distribute a new issue of securities or a large 
block of an outstanding issue. A syndicate is formed in 
such instances because the capital commitmen t or risk 
involved for any single investor, financial institution or 
broker is too great. An association of securities broker
dealers, usually in writing, who assist the principal 
underwriter in the controlled distribution of the securi
ties of an issuer. 
Syndicating. Gathering materials suitable for newspa
per publication from writers and artists and distributing 
the same at regular intervals to newspapers throughout 
the country for publication on the same day. 
1450 
Syndication. Act or process of forming a syndicate. 
Syndicos, or syndicus / sind;}kos/ sind;}k;}s/. One chosen 
by a college, municipality, etc., to defend its cause. See 
Syndic. 
Syngrapb /siIJgrref/. The name given by the canonists 
to deeds or other written instruments of which both 
parts were written on the same piece of parchment, with 
some word or letters of the alphabet written between 
them, through which the parchment was cut in such a 
manner as to leave half the word on one part and half 
on the other. It thus corresponded to the chirograph or 
indenture of the common law. 2 Bl.Comm. 295, 296. 
Formerly such writings were attested by the subscrip
tion and crosses of the witnesses; afterwards, to prevent 
frauds and concealments, they made deeds of mutual 
covenant in a script and rescript, or in a part and 
counterpart, and in the middle between the two copies 
they wrote the word syngraphus in large letters, which, 
being cut through the parchment and one being deliv
ered to each party, on being afterwards put together 
proved their authenticity. 
A deed, bond, or other written instrument under the 
hand and seal of all the parties. It was so called 
because the parties wrote together. 
Synod / sin;}d/ . A meeting or assembly of ecclesiastical 
persons concerning religion; being the same thing, in 
Greek, as convocation in Latin. There are four kinds: 
(1) A general or universal synod or council, where bish
ops of all nations meet; (2) a national synod of the 
clergy of one nation only; (3) a provincial synod, where 
ecclesiastical persons of a province only assemble, being 
now what is called the "convocation;" (4) a diocesan 
synod, of those of one diocese. A synod in Scotland is 
composed of three or more presbyteries. 
A convention of bishops and elders within a district 
including at least three presbyteries. Trustees of Pen
cader Presbyterian Church in Pencader Hundred v. Gib
son, 26 Del.Ch. 375, 22 A.2d 782, 788. A meeting of the 
few adjoining presbyteries,-not the same as an ecumen
ical council, which is a council of all, and not of a part. 
Synodal /s;}n6d;}1I. A tribute or payment in money paid 
to the bishop or archdeacon by the inferior clergy, at the 
Easter visitation. 
Synodales testes /sin;}deyliyz testiyz/. L. Lat. Synods
men (corrupted into sidesmen) were the urban and rural 
deans, now the church-wardens. See Sidesmen. 
Synonymous. Expressing the same or nearly the same 
idea. 
Synopsis. A brief or partial statement, less than the 
whole; an epitome; synonymous with summary. See 
Abstract; Digest; Syllabus. 
System. Orderly combination or arrangement, as of 
particulars, parts, or elements into a whole; especially 
such combination according to some rational principle. 
Any methodic arrangement of parts. Method; manner; 
mode.

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T
T. As an abbre viation, this letter may stand for such
terms as Uterm", Uterritory", Utitle", Utable".
Every person who was convicted of felony, short of
murder, and admitted to the benefit of clergy, was at
one time marked with this letter upon the brawn of the
thumb. Abolished by 7 & 8 Geo. IV, c. 27.
By a law of the Province of Pennsylvania, A.D. 1698,
it was provided that a convicted thief should wear a
badge in the form of the letter "T.," upon his left sleeve,
which badge should be at least four inches long and of a
color different from that of his outer garment.
Tabard Itreb�rd/. A short gown; a herald's coat; a
surcoat.
Tabarder Itreb�rd�r/. One who wears a tabard or short
gown. The name is still used as the title of certain
bachelors of arts on the old foundation of Queen's Col
lege, Oxford.
Tabella It�bel� /. Lat. In Roman law, a tablet. Used in
voting, and in giving the verdict of juries and decision of
judges; and, when written upon, commonly translated
"ballot." The laws which introduced and regulated the
mode of voting by ballot were called "leges tabellarire."
Tabellio It�bel(i)yow/. Lat. In Roman law, an officer
corresponding in some respects to a notary. His busi
ness was to draw legal instruments (contracts, wills,
etc.), and witness their execution.
Tabelliones differed from notaries in many respects:
they had judicial jurisdiction in some cases, and from
their judgments there were no appeals. Notaries were
then the clerks or aiders of the tabelliones; they re
ceived the agreements of the parties, which they re
duced to short notes; and these contracts were not
binding until they were written in extenso, which was
done by the tabelliones.
Tabernaculum Itreb�rnrek(y)�l�m/. In old records, a
public inn, or house of entertainment.
Tabernarius Itreb�rneriy�s/. Lat. In the civil law, a
shopkeeper.
In old English law, a taverner or tavern keeper.
Tabes dorsalis Iteybiyz dorseyl�s/. In medical jurispru
dence, another name for locomotor ataxia. It accompa
nies attacks of tabetic dementia. See Insanity.
Tabetic dementia It�bet�k d�mensh(iy)�/. See Insanity.
Table, n. A synopsis, condensed statement or listing
bringing together numerous items or details so as to be
comprehended in a single view; as genealogical tables,
exhibiting the names and relationships of all the per
sons composing a family; life and annuity tables, used
by actuaries; interest tables, etc. Term may also refer
to an alphabetical, numerical, etc. listing of cases, stat
utes, court rules, and the like, cited or referred to in a
legal publication. See Table of cases.
Tableau of distribution Itreblow �v distr�byUwsh�n/t
rebl6w· I. In Louisiana, a list of creditors of an insolvent
estate, stating what each is entitled to.
Table de marbre /bibl� d� marbr� /. Fr. In old French
law, table of Marble; a principal seat of the admiralty,
so called. These Tables de Marbre are frequently men
tioned in the Ordonnance of the Marine.
Table of cases. An alphabetical list of the adjudged
cases cited, referred to, or digested in a legal text-book,
volume of reports, or digest, with references to the
sections, pages, or paragraphs where they are respective
ly cited, etc., which is commonly either prefixed or
appended to the volume.
Table rents. In English law, payments which used to be
made to bishops, etc., reserved and appropriated to their
table or housekeeping.
Tabula Itreb(y)�I�/. Lat. In the civil law, a table or
tablet; a thin sheet of wood, which, when covered with
wax, was used for writing.
Tabulre Itreby�liy/. Lat. In Roman law, tables. Writ
ings of any kind used as evidences of a transaction.
Contracts and written instruments of all kinds, espe
cially wills. So called because originally written on
tablets and with wax.
Tabulre nuptiales Itreby�liy n�pshiyeyliyz/. In the civil
law, a written record of a marriage; or the agreement as
to the dos.
Tabula in naufragio Itreby�b in nofreyj(iy)ow/. Lat. A
plank in a shipwreck. This phrase is used metaphori
cally to designate the power subsisting in a third mort
gagee, who took without notice of the second mortgage,
to acquire the first incumbrance, attach it to his own,
and thus squeeze out and get satisfaction, before the
second is admitted to the fund. It may be fairly said
that the doctrine survives only in the unjust and much
criticised English rule of tacking. See Tacking. The use
of the expression is attributed to Sir Matthew Hale. Table, v. To suspend consideration of a pending legisla
tive bill or other measure. Tabularius Itreby�leriy�s/. Lat. A notary, or tabellio.
1451

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TAC,TAK 
Tac, tak Itrek/. In old records, a kind of customary 
payment by a tenant. 
T-account. Account form shaped like the letter T with 
an account name above the horizontal line. Debits are 
shown to the left of the vertical line; credits, to the 
right. In bookkeeping, an original form of account in 
which debits and credits may be recorded on the appro
priate side of the "T". 
Tac free Itrek friy I. In old records, free from the com
mon duty or i�position of taco 
Tacit Itres;}t/. Existing, inferred, or understood without 
being openly expressed or stated; implied by silence or 
silent acquiescence, as a tacit agreement or a tacit 
understanding. State V. Chadwick, 150 Or. 645, 47 P.2d 
232, 234. Done or made in silence, implied or indicated, 
but not actually expressed. Manifested by the refrain
ing from contradiction or objection; inferred from the 
situation and circumstances, in the absence of express 
matter. 
Tacit acceptance. In the civil law, a tacit acceptance of 
an inheritance takes place when some act is done by the 
heir which necessarily supposes his intention to accept 
and which he would have no right to do but in his 
capacity as heir. Civ.Code La. art. 988. 
Tacit admissions. An acknowledgment or concession of 
a fact inferred from either silence or from the substance 
of what one has said. 
Tacita quredam habentur pro expressis Itres;}t;} 
kwiyd;}m h;}bent;}r prow ;}kspres;}s/. Things unex
pressed are sometimes considered as expressed. 
Tacit dedication. Of property for public use is dedica
tion arising from silence or inactivity, without express 
contract or agreement. Goree V. Midstates Oil Corpora
tion, 205 La. 988, 18 So.2d 591, 596. 
Tacite Itres;}tiy/. Lat. Silently; impliedly; tacitly. 
Tacit hypothecation. In the civil law, a species of lien 
or mortgage which is created by operation of law with
out any express agreement of the parties. In admiralty 
law, this term is sometimes applied to a maritime lien, 
which is not, strictly speaking, an hypothecation in the 
Roman sense of the term, though it resembles it. 
Tacit law. A law which derives its authority from the 
common consent of the people without any legislative 
enactment. 
Tacit mortgage. In the law of Louisiana, the law alone 
in certain cases gives to the creditor a mortgage on the 
property of his debtor, without it being requisite that 
the parties should stipulate it. This is called "legal 
mortgage." It is called also "tacit mortgage," because it 
is established by the law without the aid of any agree
ment. 
Tacit relocation. A doctrine borrowed from the Roman 
law. It is a presumed renovation of the contract from 
the period at which the former expired, and is held to 
arise from implied consent of parties, in consequence of 
their not having signified their intention that agree-
1452 
ment should terminate at the period stipulated. 
Though the original contract may have been for a longer 
period than one year, the renewed agreement can never 
be for more than one year, because verbal contract of 
location can extend longer. Srygley V. City of Nashville, 
175 Tenn. 417, 135 S.W.2d 451. 
Tack. To annex some junior lien to a first lien, thereby 
acquiring priority over an intermediate one. See Tack
ing. 
Tacking. The term is applied especially to the process of 
establishing title to land by adverse possession, when 
the present occupant and claimant has not been in 
possession for the full statutory period, but adds or 
"tacks" to his own possession that of previous occupants 
under whom he claims. That doctrine which permits an 
adverse possessor to add his period of possession to that 
of a prior adverse possessor in order to establish a 
continuous possession for the statutory period. Deyrup 
V. Schmitt, 132 Vt. 423, 425, 321 A.2d 42, 44. 
The term is also used in a number of other connec
tions, as of possessions, disabilities, or items in accounts 
or other dealings. In these several cases the purpose of 
the proposed tacking is to avoid the bar of a statute of 
limitations. See Davis V. Coblens, 174 U.S. 719, 19 S.Ct. 
832, 43 L.Ed. 1147. 
Tacking in application by motor carriers for certifi
cates of public convenience and necessity is joinder of 
two or more separate grants of authority at a point 
common to both. Midwest Emery Freight System, Inc. 
V. U. S., D.C.Ill., 295 F.Supp. 112, 115. 
The uniting of securities given at different times, so as 
to prevent any intermediate purchaser from claiming a 
title to redeem or otherwise discharge one lien, which is 
prior, without redeeming or discharging the other liens 
also, which are subsequent to his own title. The term is 
particularly applied to the action of a third mortgagee 
who, by buying the first lien and uniting it to his own, 
gets priority over the second mortgagee. 
Tactis sacrosanctis Itrekt;}s srekr;}sreIJkt;}s/.· Lat. In old 
English law, touching the holy evangelists. A bishop 
may swear visis evangeliis [looking at the Gospels], and 
not tactis, and it is good enough. 
Tacto per se sancto evangelio Itrektow p;)r siy sreIJktow 
;}vreIJjiyl(i)yow I. Lat. Having personally touched the 
holy Gospel. The description of a corporal oath. 
Taft-Hartley Act. The Wagner Act was amended in 
1947 by the Taft-Hartley Act to balance some of the 
advantages given to unions under the Wagner Act by 
imposing corresponding duties on unions. Principal 
changes imposed by the Act included the following: 
abolishment of the closed shop, but permitting the union 
shop under conditions specified in the Act; exempting 
supervisors from coverage of the Act; requiring the 
N .L.R.B. to accord equal treatment to both independent 
and affiliated unions; permitting the employer to file a 
representation petition even though only one union 
seeks to represent the employees; granting employees 
the right not only to organize and bargain collectively 
but also to refrain from such activities; permitting

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1453 
employees to file decertification petitions for elections to 
determine whether or not employees desire to revoke a 
union's designation as their bargaining agent; declaring 
certain activities engaged in by unions to be unfair labor 
practices; giving to employers, employees, and unions 
new guarantees of the right of free speech; providing for 
settlement by the N.L.R.B. of certain jurisdictional dis
putes; vested in the General Counsel, rather than in the 
Board the authority to investigate and prosecute unfair 
labor practices. 29 U.S.C.A. § 141 et seq. 
Tail. Limited; abridged; reduced; curtailed, as a fee or 
estate in fee, to a certain order of succession, or to 
certain heirs. 
Tailage. See Tallage. 
Tail, estate in. An estate of inheritance, which, instead 
of descending to heirs generally, goes to the heirs of the 
donee's body, which means his lawful issue, his children, 
and through them to his grandchildren in a direct line, 
so long as his posterity endures in a regular order and 
course of descent, and upon the death of the first owner 
without issue, the estate determines. 
Several tail. An entail severally to two; as if land is 
given to two men and their wives, and to the heirs of 
their bodies begotten; here the donees have a joint 
estate for their two lives, and yet they have a several 
inheritance, because the issue of the one shall have hi� 
moiety, and the issue of the other the other moiety. 
Tail after possibility of issue extinct. A species of estate 
fail which arises where one is tenant in special tail, and 
a person from whose body the issue was to spring dies 
without issue, or, having left issue, that issue becomes 
extinct. In either of these cases the surviving tenant in 
special tail becomes "tenant in tail after possibility of 
issue extinct." 2 Bl.Comm. 124. 
Tail female. When lands are given to a person and the 
female heirs of his or her body. The male heirs are not 
capable of inheriting it. 
Tail general. An estate in tail granted to one "and the 
heirs of his body begotten," which is called "tail gener
al" because, how often soever such donee in tail be 
married, his issue in general by all and every such 
marriage is, in successive order, capable of inheriting 
the estate tail per formam doni. 2 Bl.Comm. 113. This 
is where an estate is limited to a man and the heirs of 
his body, without any restriction at all; or, according to 
some authorities, with no other restriction than that in 
relation to sex. Thus, tail male general is the same 
thing as tail male; the word "general," in such case, 
implying that there is no other restriction upon the 
descent of the estate than that it must go in the male 
line. So an estate in tail female general is an estate in 
tail female. The word "general," in the phrase, express
es a purely negative idea, and may denote the absence of 
any restriction, or the absence of some given restriction 
which is tacitly understood. 
Tail male. When certain lands are given to a person 
and the male heirs of his or her body. The female heirs 
are not capable of inheriting it. 
TAKE 
Tail special. This denotes an estate in tail where the 
succession is restricted to certain heirs of the donee's 
body, and does not go to all of them in general; e.g., 
where lands and tenements are given to a man and "the 
heirs of his body on Mary, his now wife, to be begotten;" 
here no issue can inherit but such special issue as is 
engendered between those two, not such as the husband 
may have by another wife, and therefore it is called 
"special tail." 2 Bl.Comm. 113. It is defined as the 
limitation of lands and tenements to a man and his wife 
and the heirs of their two bodies. But the phrase need 
not be thus restricted. Tail special, in its largest sense, 
is where the gift is restrained to certain heirs of the 
donor's body, and does not go to all of them in general. 
Taille Itay/teyl/. Fr. In old English law, the fee which 
is opposed to fee-simple, because it is so minced or pared 
that it is not in the owner's free power to dispose of it, 
but it is, by the first giver, cut or divided from all other, 
and tied to the issue of the donee,-in short, an estate
tail. 
In old French law, a tax or assessment levied by the 
king, or by any great lord, upon his subjects, usually 
taking the form of an imposition upon the owners of real 
estate. The equivalent of the English tallage-the typi
cal direct tax in France of the Middle Ages, as tonlieu 
was the generic term for an indirect tax. See Tallage. 
Taint. A conviction of felony, or the person so convicted. 
Take. The word "take" has many shades of meaning, 
with the precise meaning which it is to bear in any case 
depending on the subject with respect to which it is 
used; e.g. eminent domain; larceny; arrest. 
To lay hold of; to gain or receive into possession; to 
seize; to deprive one of the use or possession of; to 
assume ownership. Thus, constitutions generally pro
vide that a person's property shall not be taken for 
public uses without just compensation. Fifth Amend., 
U.S.Const. See De facto taking; Taking. 
In the law of larceny, to obtain or assume possession 
of a chattel unlawfully, and without the owner's con
sent; to appropriate things to one's own use with feloni
ous intent. Thus, an actual taking is essential to consti
tute larceny. The element of "taking" in robbery does 
not require robber's manual possession of property; it is 
sufficient if robber has acquired dominion and control 
over property. State v. Beatty, Mo.App., 617 S.W.2d 87, 
90. A "taking" may occur when a person with a precon
ceived design to appropriate property to his own use 
obtains possession of it by means of fraud or trickery; 
and, such taking may be accomplished by the use of an 
innocent agent acting under the control and direction of 
the taker where the goods finally come into possession of 
the taker and are converted to his use. U.S. v. Posner, 
D.C.Md., 408 F.Supp. 1145, 1153. 
To seize or apprehend a person; to arrest the body of 
a person by virtue of lawful process. Thus, a capias 
commands the officer to take the body of the defendant. 
See Seize. 
To acquire the title to an estate; to receive or be 
entitled to an estate in lands from another person by

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TAKE 
virtue of some species of title. Thus one is said to "take 
by purchase," "take by descent," "take a life-interest 
under the devise," etc. 
Profit from a transaction, lottery, etc. Person open to 
taking bribes (i.e. "on the take".) 
See also Taking as regards eminent domain proceed
ings. 
Take away. This term in a statute punishing every 
person who shall take away any female under 18 from 
her father for the purpose of prostitution requires only 
that such person procure or cause her to go away by 
some persuasion, enticement, or inducement offered, 
exercised, or held out to the girl, or by furnishing her 
the means or money with which to go away. See also 
Taking. 
Take back. To revoke; to retract; as, to take back one's 
promise. 
Take by stealth. To steal; feloniously to take and carry 
away the personal goods of another; to take without 
right, secretly, and without leave or consent of the 
owner. 
Take care of. To support; maintain; look after (a 
person). To pay (a debt). To attend to. 
Take effect. To become operative or executed. To be in 
force, or go into operation. 
Take-home pay. The net amount of a paycheck; gross 
earned wages or salary reduced by deductions for in
come taxes, Social Security taxes, contributions to fringe 
benefit plans, union dues, and so on. 
Takeover. To assume control or management of;-not 
necessarily involving the transfer of absolute title. See 
Tender offer. 
Takeover bid. An attempt by an outside corporation or 
group, usually called the aggressor or "insurgent," to 
wrest control away from incumbent management of 
target corporation. A takeover attempt may involve 
purchase of shares, a tender offer, a sale of assets or a 
proposal that the target merge voluntarily into the 
aggressor. See Leveraged buyout; Golden parachute; 
Greenmail; Poison pill; Tender offer; Target company; 
White knight. 
Taker. One who takes or acquires; particularly, one 
who takes an estate by devise. When an estate is 
granted subject to a remainder or executory devise, the 
devisee of the immediate interest is called the "first 
taker." 
Take up. To pay or discharge, as a note. Also, some
times, to purchase a note. To retire a negotiable instru
ment; to discharge one's liability on it;-said particular
ly of an indorser or acceptor. A party to a negotiable 
instrument, particularly an indorser or acceptor, is said 
to "take up" the paper, or to "retire" it, when he pays 
its amount, or substitutes other security for it, and 
receives it again into his own hands. 
1454 
Taking. In criminal law and torts, the act of laying hold 
upon an article, with or without removing the same. It 
implies a transfer of possession, dominion, or control. 
Under various statutes relating to sexual offenses, 
such as the abduction of a girl under the age of 18 years 
for the purpose of carnal intercourse, to constitute a 
"taking" no force, actual or constructive, need be exer
cised. The "taking" may be effected by persuasion, 
enticement, or inducement. And it is not necessary that 
the girl be taken from the control or against the will of 
those having lawful authority over her. See also Take 
away. 
There is a "taking" of property when government 
action directly interferes with or substantially disturbs 
the owner's use and enjoyment of the property. Broth
ers v. U.S., C.A.Or., 594 F.2d 740, 741. To constitute a 
"taking, within constitutional limitation, it is not essen
tial that there be physical seizure or appropriation, and 
any actual or material interference with private proper
ty rights constitutes a taking. Board of Com'rs of Lake 
County v. Mentor Lagoons Inc., Com.Pl., .6 Ohio Misc. 
126, 216 N.E.2d 643, 646; Aris Gloves, Inc. v. U.S., 
Ct.Cl., 420 F.2d 1386. For example, the noise of jet 
aircraft in process of landing or taking off can amount 
to a "taking" or "damaging" of property for which the 
constitution requires that compensation be made. Mar
tin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540, 543. 
Also, "taking" of property is affected if application of 
zoning law denies property owner of economically viable 
use of his land, which can consist of preventing best use 
of land or extinguishing fundamental attribute of owner
ship. Vari-Build, Inc. v. City of Reno, D.C.Nev., 596 
F.Supp. 673, 679. See also Condemnation; Constructive 
taking; Eminent domain; Take. 
As element of crime of larceny, see Take. 
Taking case from jury. Directing a verdict; a situation 
in which a court grants a motion to sustain a judgment. 
See Directed verdict. 
Taking delivery. Receiving actual delivery of commodi
ty under futures contract or spot market contract, or of 
securities recently purchased. 
Taking the fifth. The practice of witnesses or suspects 
in refusing to answer a question because of the Fifth 
Amendment right in the U.S. Constitution to refuse to 
furnish information implicating one's self in a crime. 
See Fifth Amendment; Self-incrimination. 
Tale. The count or counting of money. Said to be 
derived from the same root as "tally." Whence also the 
modern word "teller." 
In old pleading, the plaintiffs count, declaration, or 
narrative of his case. 3 Bl.Comm. 293. 
Tales /teyliyz/. Lat. Such; such men. A number of 
jurors added to a deficient panel to supply the deficien
cy. When, by means of challenges or any other cause, a 
sufficient number of unexceptionable jurors does not 
appear at the trial, either party may request a "tales," 
as it is termed; that is, a supply of such men as are

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1455 
summoned on the first panel in order to make up the 
deficiency. 
A list of such jurymen as were of the tales, kept in the 
king's bench office in England. 
Tales de circumstantibus Iteyliyz diy 
s�rk�mstrent�b�s/. So many of the by-standers. The 
emphatic words of the old writ awarded to the sheriff to 
make up a deficiency of jurors out of the persons present 
in court. 3 Bl.Comm. 365. 
The order of the judge for taking such by-standers as 
jurors. 
Talesman. A person summoned to act as a juror from 
among the by-standers in the court. A person sum
moned as one of the tales added to a jury. 
Talio Iteyl(i)yow/. Lat. In the civil law, like for like; 
punishment in the same kind; the punishment of an 
injury by an act of the same kind, as an eye for an eye, a 
limb for a limb, etc. 
Talis interpretatio semper fienda est, ut evitetur ab
surdum et inconveniens, et ne judicium sit illusori
um Iteyl�s int�rpr�teysh(iy)ow semp�r fayend� est, �t 
ev�tiyt�r �bs�rd�m et ink�nviyn(i)yenz, et niy 
juwdish(iy)�m sit il(y)uwzoriy�m/. Interpretation is al
ways to be made in such a manner that what is absurd 
and inconvenient may be avoided, and the judgment be 
not illusory [or nugatory]. 
Talis non est eadem; nam nullum simile est idem 
Iteyl�s non est iyeyd�m; nrem n�l�m sim�liy est ayd�m/. 
What is like is not the same; for nothing similar is the 
same. 
Talis res, vel tale rectum, qUa! vel quod non est in 
homine adtunc superstite sed tantummodo est et 
consistit in consideratione et intelligentia legis, et 
quod alii dixerunt talem rem vel tale rectum fore in 
nubibus Iteyl�s riyz, vel teyliy rekt�m, kwiy vel kwod 
non est in hom�niy redt;}I]k s(y)uwp;}rst�tiy sed 
trent�mowdow est et k�nsist�t in k�nsid�reyshiyowniy ed 
intel�jensh(iy)� liyj�s, et kwod eyliyay diksir�nt teyl�m 
rem vel teyliy rekt�m foriy in nyuwb�b�s/. Such a 
thing or such a right as is not vested in a person then 
living, but merely exists in the consideration and con
templation of law [is said to be in abeyance], and others 
have said that such a thing or such a right is in the 
clouds. 
Taliter processum est Itrel�t�r pr�ses�m est/. So it has 
proceeded. Words formerly used in pleading, by which 
a defendant, in justifying his conduct by the process of 
an inferior court, alleged the proceedings in such inferi
or court. Upon pleading the judgment of an inferior 
court, the proceedings preliminary to such judgment, 
and on which the same was founded, must, to some 
extent, appear in the pleading, but the rule is that they 
may be alleged with a general allegation that "such 
proceedings were had," instead of a detailed account of 
the proceedings themselves, and this general allegation 
is called the "taliter processum est." A like concise 
mode of stating former proceedings in a suit is adopted 
at the present day in chancery proceedings upon peti-
TALWEG 
tions and in actions in the nature of bills of revivor and 
supplement. 
Tallage, or tailage Itrel�j/teyl�j/. A piece cut out of the 
whole. Used metaphorically for a share of a man's 
substance paid by way of tribute, toll, or tax, being 
derived from the French "tailler," which signifies to cut 
a piece out of the whole. A term used to denote subsi
dies, taxes, customs, and, indeed, any imposition whatev
er by the government for the purpose of raising a 
revenue. A tax upon cities, townships and boroughs 
granted to the king as a part of the royal revenue. 
Tallager Itrel�j�r/. A tax or toll gatherer; mentioned by 
Chaucer (and spelled "talaigier"). 
Tallagium It�leyj(iy)�m/. L. Lat. A term including all 
taxes. 
Tallagium facere It�leyj(iy)�m fres�riy/. To give up 
accounts in the exchequer, where the method of account
ing was by tallies. 
Tallatio It�leysh(iy)ow I. A keeping account by tallies. 
Talley, or tally. A stick cut into two parts, on each 
whereof is marked, with notches or otherwise, what is 
due between debtor and creditor. It was the ancient 
mode of keeping accounts. One part was held by the 
creditor, and the other by the debtor. The use of tallies 
in the exchequer was abolished by St. 23 Geo. III, c. 82, 
and the old tallies were ordered to be destroyed by St. 4 
& 5 Wm. IV, c. 15. By the custom of London, sealed 
tallies were effectual as a deed. They are admissible by 
the French and Italian Codes as evidence between trad
ers. It is said that they were negotiable. 
Tallies of loan. A term originally used in England to 
describe exchequer bills, which were issued by the offi
cers of the exchequer when a temporary loan was neces
sary to meet the exigencies of the government, and 
charged on the credit of the exchequer in general, and 
made assignable from one person to another. 
Tally trade. A system of dealing by which dealers 
furnish certain articles on credit, upon an agreement for 
the payment of the stipulated price by certain weekly or 
monthly installments. 
Tallia Itrel(i)y�/. L. Lat. A tax or tribute; tallage; a 
share taken or cut out of any one's income or means. 
Talmud Italmuwd/trelm�d/. A work which embodies 
the civil and canonical law of the Jewish people. 
Taltarum's Case Itolter�mz keys/. A case reported in 
Yearb. 12 Edw. IV, 19-21, which is regarded as having 
established the foundation of common recoveries. 
Talweg Italveyk/. Germ. (Tal meaning valley, Weg 
meaning way.) Commonly used by writers on interna
tional law in definition of water boundaries between 
states, meaning the middle or deepest or most navigable 
channel, and while often styled "fairway" or "midway" 
or "main channel" the word has been taken over into 
various languages and the doctrine of Talweg is often 
applicable in respect of water boundaries to sounds, 
bays, straits, gulfs, estuaries and other arms of the sea

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TALWEG 
and also applies to boundary lakes and landlocked seas 
whenever there is a deep water sailing channel therein. 
State of Louisiana v. State of Mississippi, 202 U.S. 1, 26 
S.Ct. 408, 421, 50 L.Ed. 913. 
Tame. Domesticated; accustomed to man; reclaimed 
from a natural state of wildness. In the Latin phrase, 
tame animals are described as domitre naturre. 
Tamen Iteym:m/. Lat. Notwithstanding; nevertheless; 
yet. 
Tamper. To meddle so as to alter a thing, especially to 
make illegal, corrupting or perverting changes; as, to 
tamper with a document or a text; to interfere improp
erly; to meddle; to busy oneself rashly; to try trifling or 
foolish experiments. United States v. Tomicich, D.C.Pa., 
41 F.Supp. 33, 35. To illegally change as to tamper with 
the mileage reading on an odometer of a motor vehicle, 
or a motor vehicle identification number (18 U.S.C.A. 
§§ 511, 512), or consumer products (18 U.S.C.A. § 1365), 
or a witness or victim (18 U.S.C.A. § 1512 et seq.). 
Tampering with jury. Embracery. The act of attempt
ing to influence a juror corruptly by promises, threats, 
persuasions, entreaties, money or any other means ex
cept the production of evidence in open court. Such act 
is a criminal offense. See e.g. 18 U.S.C.A. §§ 1503, 1504. 
Tampering with records. See Falsifying a record. 
Tam quam Itrem kwrem/. A phrase used as the name of 
a writ of error from inferior courts, when the error is 
supposed to be as well in giving the judgment as in 
awarding execution upon it. (Tam in redditione judicii, 
quam in adjudicatione executionis.) 
Venire tam quam Iv�nayriy trem kwrem/. One by which 
a jury was summoned, as well to try an issue as to 
inquire of the damages on a default. 
Tangible. Having or possessing physical form. Capable 
of being touched and seen; perceptible to the touch; 
tactile; palpable; capable of being possessed or realized; 
readily apprehensible by the mind; real; substantial. 
Tangible assets. Assets with physical existence (e.g., 
cash, real estate, equipment) and which are not held for 
resale. Although accounts receivable do not appear to 
have a physical existence, they are considered to be 
tangible assets on the balance sheet. 
Tangible cost. A term used in connection with the costs 
associated with oil and gas drilling. Tangible costs 
include the materials and land in contrast to such costs 
as drilling or testing costs which are considered intangi
ble costs. 
Tangible evidence. Evidence which consists of some
thing which can be seen or touched, e.g. gun in homicide 
trial. In contrast to testimonial evidence, tangible evi
dence is real evidence. See Evidence. 
Tangible property. Property that has physical form 
and substance and is not intangible. That which may 
be felt or touched, and is necessarily corporeal, although 
it may be either real or personal (e.g. ring or watch). 
1456 
H.D. & J.K. Crosswell, Inc. v. Jones, D.C.S.C., 52 F.2d 
880, 883. Compare Intangible property. 
Tanistry Itren�striy I Bon 0 I . In old Irish law, a species of 
tenure, founded on ancient usage, which allotted the 
inheritance of lands, castles, etc., to the "oldest and 
worthiest man of the deceased's name and blood." It 
was abolished in the reign of James I. 
Tanteo Itanteyow/. Span. In Spanish law, pre-emption. 
Tanto, right of Irayt �v tantow/. In Mexican law, the 
right enjoyed by an usufructuary of property, of buying 
the property at the same price at which the owner offers 
it to any other person, or is willing to take from another. 
Tantum bona valent, quantum vendi possunt 
Itrent�m bown� vrel�nt, kwont�m venday pos�ntl. 
Goods are worth so much as they can be sold for. 
Tantum habent de lege, quantum habent de justitia 
Itrent�m heyb�nt diy liyjiy, kwont�m heyb�nt diy 
j;}stish(iy)�/. (Precedents) have value in the law to the 
extent that they represent justice. 
Tapping. The interception of a telephonic or telegraphic 
message by connecting a device to the lines, permitting 
a person to hear the message. It is regulated by federal 
and state statutes and normally requires prior judicial 
approval. See 18 U.S.C.A. § 2510 et seq. See also 
Eavesdropping; Pen register; Surveillance; Wiretapping. 
Tarde venit Itardiy viyn�t/. Lat. The name of a return 
made by the sheriff to a writ, when it came into his 
hands too late to be executed before the return-day. 
Tare lter/. A deficiency in the weight or quantity of 
merchandise by reason of the weight of the box, cask, 
bag, or other receptacle which contains it and is weighed 
with it. Also an allowance or abatement of a certain 
weight or quantity which the seller makes to the buyer, 
on account of the weight of such box, cask, etc. See Tret. 
Target company. Company attempted to be taken over 
in tender offer, leveraged buyout, or other type of take
over or acquisition attempt. See Takeover bid; Tender 
offer. 
Target offense. In crime of conspiracy, the crime con
templated by the illegal agreement. 
Target witness. A person whose testimony the investi
gating body is principally seeking as in the case of a 
grand jury which has, as its objective, the information 
which such a person may give. A witness called before 
a grand jury against whom the government is seeking 
an indictment. United States v. Washington, 431 U.S. 
181, 97 S.Ct. 1814, 52 L.Ed.2d 238. 
Tariff Itrer�f/. The list or schedule of articles on which 
a duty is imposed upon their importation into the Unit
ed States, with the rates at which they are severally 
taxed. Also the custom or duty payable on such arti
cles. 19 U.S.C.A. And, derivatively, the system of 
imposing duties or taxes on the importation of foreign 
merchandise. 
A series of schedules or rates of duties or taxes on 
imported goods. Tariffs are for revenue if their primary

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objects are fiscal; protective if designed to relieve do
mestic businesses from effective foreign competition; 
discriminatory if they apply unequally to products of 
different countries; and retaliatory if they are designed 
to compel a country to remove artificial trade barriers 
against the entry of another nation's products. 
A public document setting forth services of common 
carrier being offered, rates and charges with respect to 
services and governing rules, regulations and practices 
relating to those services. International Tel. & Tel. 
Corp. v. United Tel. Co. of Florida, D.C.Fla., 433 F.Supp. 
352,357. 
See also Customs duties; GATT; Most favored nation 
clause. 
Antidumping tariff. A tariff calculated to prevent the 
dumping or unloading of imported goods below cost by 
fixing the tariff at the difference between the price at 
which the goods commonly sell in the country of origin 
and the price at which it is to be sold in the importing 
country. See also Dumping Act. 
Autonomous tariff. Tariff set by legislation and not by 
commercial treaties. 
Joint tariff. Schedule of rates established by two or 
more carriers covering shipments between places requir
ing the use of facilities owned by such carriers. 
Preferential tariff. Tariff aimed at favoring the prod
ucts of one country over those of another. See also Most 
favored nation clause; Preferential tariff. 
Protective tariff. Tariff designed to protect or encourage 
domestic goods by imposing a high rate on imported 
goods of a similar nature. See also Protective tariff. 
Revenue tariff. Tariff designed primarily to raise reve
nues and to support the customs service instead of 
encouraging production of imported goods. 
Tath ItilfJltey()l. In the counties of Norfolk and Suffolk, 
the lords of manors anciently claimed the privilege of 
having their tenants' flocks or sheep brought at night 
upon their own demesne lands, there to be folded for the 
improvement of the ground, which liberty was called by 
the name of the "tath." 
Tauri liberi libertas It6hray lib;}ray bMrtresrlib;}rtresl. 
Lat. A common bull; because he was free to all the 
tenants within such a manor, liberty, etc. 
Tautology I tot61;}jiy I. Describing the same thing twice 
in one sentence in equivalent terms; a fault in rhetoric. 
It differs from repetition or iteration, which is repeating 
the same sentence in the same or equivalent terms; the 
latter is sometimes either excusable or necessary in an 
argument or address; the former (tautology) never. 
Taverner. In old English law, a seller of wine; one who 
kept a house or shop for the sale of wine. 
Tavern keeper. One who owns and operates a tavern or 
an inn. 
Tax. A charge by the government on the income of an 
individual, corporation, or trust, as well as the value of 
TAX 
an estate or gift. The objective in assessing the tax is to 
generate revenue to be used for the needs of the public. 
A pecuniary burden laid upon individuals or property 
to support the government, and is a payment exacted by 
legislative authority. In re Mytinger, D.C.Tex., 31 
F.Supp. 977, 978, 979. Essential characteristics of a tax 
are that it is not a voluntary payment or donation, but 
an enforced contribution, exacted pursuant to legislative 
authority. Michigan Employment Sec. Commission v. 
Patt, 4 Mich.App. 228, 144 N.W.2d 663, 665. Annual 
compensation paid to government for annual protection 
and for current support of government. Alabama Pow
er Co. v. Federal Power Commission, C.C.A.5, 134 F.2d 
602, 608. A ratable portion of the produce of the prop
erty and labor of the individual citizens, taken by the 
nation, in the exercise of its sovereign rights, for the 
support of government, for the administration of the 
laws, and as the means for continuing in operation the 
various legitimate functions of the state. An enforced 
contribution of money or other property, assessed in 
accordance with some reasonable rule or apportionment 
by authority of a sovereign state on persons or property 
within its jurisdiction for the purpose of defraying the 
public expenses. 
In a general sense, any contribution imposed by 
government upon individuals, for the use and service of 
the state, whether under the name of toll, tribute, tal
lage, gabel, impost, duty, custom, excise, subsidy, aid, 
supply, or other name. And in its essential characteris
tics is not a debt. City of Newark v. Jos. Hollander, 
Inc., 136 N.J.Eq. 539, 42 A.2d 872, 875. 
See also Accumu lated earnings tax; Estate tax; Estimat
ed tax; Excess profits tax; Excise tax; Gift tax; Holding 
company tax; Income tax; In heritance tax; Intangibles tax; 
Investment tax credit; Levy; License fee or tax; Occupa
tion tax; Payroll tax; Poll-tax; Progressive tax; Property 
tax; Regressive tax; Sales tax; Service occupation tax; 
Surtax; Taxation; Toll; Transfer tax; Undistributed profits 
tax; Use tax; Withholding. 
Synonyms 
In a broad sense, taxes undoubtedly include assess
ments, and the right to impose assessments has its 
foundation in the taxing power of the government; and 
yet, in practice and as generally understood, there is a 
broad distinction between the two terms. "Taxes, " as 
the term is generally used, are public burdens imposed 
generally upon the inhabitants of the whole state, or 
upon some civil division thereof, for governmental pur
poses, without reference to peculiar benefits to particu
lar individuals or property. "Assessments" have refer
ence to impositions for improvements which are special
ly beneficial to particular individuals or property, and 
which are imposed in proportion to the particular bene
fits supposed to be conferred. They are justified only 
because the improvements confer special benefits, and 
are just only when they are divided in proportion to 
such benefits. As distinguished from other kinds of 
taxation, "assessments" are those special and local im-

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TAX 
positions upon property in the immediate vicinity of 
municipal improvements which are necessary to pay for 
the improvement, and are laid with reference to the 
special benefit which the property is supposed to have 
derived therefrom. 
Taxes differ from subsidies, in being certain and or
derly, and from forced contributions, etc., in that they 
are levied by authority of law, and by some rule of 
proportion which is intended to insure uniformity of 
contribution, and a just apportionment of the burdens of 
government. 
Generally 
Ad valorem tax. See that title. 
Amusement tax. See that title. 
Bracket creep. The process by which inflation pushes 
income earners into higher marginal tax brackets. The 
significance of the bracket creep changed with the Tax 
Reform Act of 1986 which substantially reduced the 
number of brackets. 
Capital gains tax. Provision in tax laws by which sale 
or exchange of capital assets are taxed at a lower rate 
than ordinary income. Since the Tax Reform Act of 
1986, capital gains are taxed at the same rate as ordi
nary income. See also Capital. 
Capital stock tax. Tax assessed as a percentage of par 
or assigned value of capital stock of a corporation. 
Capitation tax. See that title. 
Collateral inheritance tax. See that title. 
Consumption tax. Tax imposed on sales of consumption 
goods and services. 
Customs tax. See Customs duties. 
Estate tax. A tax imposed upon the right to transfer 
property at death, while an inheritance tax is a tax 
upon the right to receive. See also Estate tax; Inheri
tance tax. 
Excess profits tax. Tax imposed on all income beyond 
the normal amount calculated on either a normal return 
on invested capital or on the average of income of 
previous years. Such tax is commonly imposed in war 
time. See Excess profits tax; also, Undistributed profits 
tax, below. 
Excise tax. See that title. 
Flat tax. Tax imposed at same rate to all levels of 
income. 
Floor tax. A tax on all the distilled spirits "on the 
floor" of a warehouse, i.e., in the warehouse. 
Franchise tax. See Franchise. 
Gift tax. A tax imposed on the transfer of assets with
out adequate consideration. The federal gift tax is 
levied on the donor; however, some states impose a gift 
tax on the donee. See also Gift tax. 
Graduated tax. A tax so structured that the rate in
creases as the amount of the income or value of the 
property increases. 
1458 
Gross receipts tax. A tax based on total sales rather 
than on net profits. 
Head tax. A flat tax imposed on a per person basis. 
Income tax. See that title. 
Inheritance tax. See that title and Estate tax. 
Land tax. See that title and Ad valorem tax; Property 
tax. 
License tax. See License fee or tax. 
Local taxes. Taxes imposed by municipalities such as 
local property taxes or city income or sales taxes. 
Occupation tax. 'See that title. 
Payroll tax. A type of tax which is collected by deduc
tion from an employee's wages. Federal, state and half 
of the social security tax is paid by employees, with the 
social security tax matched by the employer. 
Personal property tax. A tax assessed against personal 
property by cities and towns. The tax is commonly 
referred to as an excise tax and is levied against such 
items as automobiles, boats, etc. 
Real estate tax. Tax levied by local taxing authority 
against the ownership of real estate for purposes of 
financing the operations of the local government. See 
also Ad valorem tax; Property tax. 
Poll-tax. See that title. 
Progressive tax. See that title. Compare Regressive tax, 
below. 
Property tax. Generic term describing a tax levied on 
the basis of the value of either personal or real property 
owned by the taxpayer. See also Ad valorem tax; Proper
ty tax; and Real estate tax, below. 
Proportional taxes. Taxes are "proportional" when the 
proportion paid by each taxpayer bears the same ratio to 
the amount to be raised that the value of his property 
bears to the total taxable value, and in the case of a 
special tax when that is apportioned according to the 
benefits received. 
Regressive tax. A tax system in which higher-income 
groups pay a smaller percentage of their income to taxes 
than do lower-income groups; that is, the marginal rate 
is below the average rate. The average rate falls as 
income increases. Compare Progressive tax. 
Sales tax. Tax levied in most states on the sale of goods 
and based on their value. It may be a direct tax which 
is paid by the purchaser or a turnover tax paid by the 
seller on the gross sales of his business. See also Sales 
tax. 
Severance tax. Tax levied on the mining or extraction 
of some natural resource such as oil or coal. It may be 
assessed on the value of the product extracted or on the 
volume. 
Sinking fund tax. See Fund. 
Specific tax. A tax imposed as a fixed sum on each 
article or item or property of a given class or kind, 
without regard to its value (e.g. sales tax); opposed to ad 
valorem tax.

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1459 
Stamp tax. Tax collected through the sale of stamps 
which must be affixed to certain documents such as 
deeds, stock certificates, etc. See Revenue stamps. 
Stock transfer tax. Tax levied by the federal govern
ment and by certain states on the transfer or sale of 
shares of stock. 
Succession tax. See Succession duty or tax. 
Surtax. An additional tax imposed on incomes exceed
ing a specified amount. See also Surtax. 
Tax abatement. See Abatement. 
Tax assessment. See Assessment; Tax assessment. 
Tax certificate. A certificate of the purchase of land at 
a tax sale thereof, given by the officer making the sale, 
and which is evidence of the holder's right to receive a 
deed of the land if it is not redeemed within the time 
limited by law. 
Tax-deed. The deed given upon a sale of real property 
made for non-payment of taxes. The deed whereby the 
officer of the law undertakes to convey the title of the 
property to the purchaser at the tax-sale. See also Tax 
certificate; Tax deed; and Tax-ti tle, below. 
Tax deficiency. See Deficiency assessment. 
Taxing district. The district throughout which a partic
ular tax or assessment is ratably apportioned and levied 
upon the inhabitants; it may comprise the whole state, 
one county, a city, a ward, or part of a street. 
Tax lease. The instrument (or estate) given to the 
purchaser of land at a tax sale, where the law does not 
permit the sale of the estate in fee for non-payment of 
taxes, but instead thereof directs the sale of an estate for 
years. 
Tax levy. The total sum to be raised by a tax. Also the 
bill, enactment, or measure of legislation by which an 
annual or general tax is imposed. See also Assessment; 
Levy. 
Tax lien. A statutory lien, existing in favor of the state 
or municipality, upon the lands of a person charged with 
taxes, binding the same either for the taxes assessed 
upon the specific. tract of land or (in some jurisdictions) 
for all the taxes due from the individual, and which may 
be foreclosed for non-payment, by judgment of a court or 
sale of the land. See also Tax lien. 
Taxpayer. A person whose income is subject to taxation; 
one from whom government demands a pecuniary con
tribution towards its support. 
Taxpayers'l ists. Written exhibits required to be made 
out by the taxpayers resident in a district, enumerating 
all the property owned by them and subject to taxation, 
to be handed to the assessors, at a specified date or at 
regular periods, as a basis for assessment and valuation. 
See also Roll (Tax roll). 
Tax roll. See Roll. 
Tax sale. See Sale. 
TAXABLE ESTATE 
Tax-title. The title by which one holds land which he 
purchased at a tax sale. That species of title which is 
inaugurated by a successful bid for land at a collector's 
sale of the same for nonpayment of taxes, completed by 
the failure of those entitled to redeem within the speci
fied time, and evidenced by the deed executed to the tax 
purchaser, or his assignee, by the proper officer. 
Tonnage tax. See Tonnage-duty. 
Transfer tax. See Stock transfer tax, above. 
Undistributed profits tax. A tax imposed on the accu
mulated surplus of specific types of corporations when 
such surplus reaches a certain level. The objective of 
such a tax is to discourage the formation of a corpora
tion for the purpose of preventing the imposition of an 
income tax on the shareholder through accumulated 
earnings instead of making distributions thru dividends. 
I.R.C. § 531. See Accumulated earnings tax. 
Unemployment tax. Tax required by the Federal Unem
ployment Tax Act (FUTA) to cover the cost of unemploy
ment insurance. The federal statute provides for a tax 
based on a percentage of employee earnings but allows a 
credit for amounts paid in state unemployment taxes. 
Unitary tax. A method of determining the locally tax
able income of businesses that transact business with 
affiliated companies outside the state. Alcan Alu
minum Ltd. v. Franchise Tax Bd. of State of Calif., 860 
F.2d 688, 690. See also Unitary business; Unitary theory. 
Use tax. Tax generally imposed by a state on the use of 
certain goods which are not subject to a sales tax. It is 
commonly designed to discourage people from going out 
of state and purchasing goods which are not subject to 
sales tax at the point of purchase. See also Use tax. 
Value-added tax (V AT). A tax assessed on goods and 
services on the value added by each producing unit. 
The value added is generally the sum of all wages, 
interest, rent, and profits. Otherwise stated, it is the 
total sale price of output minus the cost of raw materials 
and intermediate goods purchased from other firms. 
The amount of the tax is a percentage of the value of the 
goods or services. Such a tax exists in many European 
countries, but not as yet in the U.S. 
Withholding tax. A tax which is collected by deducting 
it from the wages of an employee, e.g. federal income 
taxes. See also Payroll tax. 
Taxa /treks;)/. L. Lat. A tax. In old records, an allotted 
piece of work; a task. 
Taxable. Subject to taxation; liable to be assessed, 
along with others, for a share in a tax. Something of 
value, subject to assessment, and to be levied upon and 
sold for taxes. Williams v. School Dist. No. 32 in County 
of Fremont, 56 Wyo. 1, 102 P.2d 48, 52. 
As applied to costs in an action, the term means 
proper to be taxed or charged up; legally chargeable or 
assessable. See also Taxation (Taxation of costs). 
Taxable estate. As. defined in I.R.C. § 2051, the taxable 
estate is the gross estate of a decedent reduced by the 
deductions allowed by §§ 2053-2057 (e.g., administration

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TAXABLE ESTATE 
expenses, marital, charitable and ESOP deductions). 
The taxable estate is the amount that is subject to the 
unified transfer tax at death. See also Adjusted gross 
estate; Gross estate. 
Taxable gift. As defined in I.R.C. § 2503, a taxable gift 
is the gift that is subject to the unified transfer tax. 
Thus, a taxable gift has been adjusted by the annual 
exclusion and other appropriate deductions (e.g., marital 
and charitable deductions). 
Taxable income. Under the federal tax law, taxable 
income is gross income reduced by adjustments and 
allowable deductions. It is the income against which 
tax rates are applied to compute an individual or enti
ty's tax liability. Essence of "taxable income" is the 
accrual of some gain, profit or benefit to taxpayer. In re 
Goodyear Tire & Rubber Co., Corporate Income Tax 
1966, 1967, 1968, 133 Vt. 132, 335 A.2d 310, 313. See 
Gross income; Net income. 
Taxable year. The taxable period for computing the 
Federal or state income tax liability; generally it is 
either the calendar year or a fiscal year of 12 months 
ending on the last day of a month other than December. 
I.R.C. § 441(b). See also Accounting period; Fiscal year. 
Tax accounting. The accounting (timing) rules and 
methods used in determining a taxpayer's tax liability. 
Tax anticipation bill (TAB). Short term obligations 
issued by the federal government, the objective of which 
is to meet the cash flow needs of the government. TABs 
generally mature one week after corporate estimated 
taxes are due and are popular because they are accepted 
by the government at par value on the tax due date 
without forfeiting any interest income. 
Tax anticipation note (TAN). Short-term obligations 
issued by state or local governments to finance current 
expenditures. TANs generally mature once individual 
and corporate taxes are received by the local govern
ment. 
Tax anticipation warrants. A method of raising public 
money by the issuance of warrants payable out of tax 
receipts when collected. 
Taxare Itrekseriy I. Lat. To rate or value. To tax; to 
lay a tax or tribute. 
In old English practice, to assess; to rate or estimate; 
to moderate or regulate an assessment or rate. 
Tax assessment. The value given to the property which 
is being taxed. Multiplying the assessed valuation by 
the tax rate yields the tax paid. See also Assessment. 
Tax assessor. The official responsible for tax valuation 
of property. See also Assessor. 
Taxati Itrekseytay/. In old European law, soldiers of a 
garrison or fleet, assigned to a certain station. 
Taxatio Itrekseysh(iy)ow/. Lat. In Roman law, taxation 
or assessment of damages; the assessment, by the judge, 
of the amount of damages to be awarded to a plaintiff, 
and particularly in the way of reducing the amount 
claimed or sworn to by the latter. 
1460 
Taxatio ecclesiastica Itrekseysh(iy)ow ;)kliyziyrest;)k;)I . 
The value of ecclesiastical benefices made through every 
diocese in England, on occasion of Pope Innocent IV 
granting to King Henry III the tenth of all spirituals for 
three years. This taxation was first made by Walter, 
bishop of Norwich, delegated by the pope to this office in 
38 Hen. III, and hence called "Taxatio Norwicencis." It 
is also called "Pope Innocent's Valor." 
Taxatio expensarum Itrekseysh(iy)ow ekspenser;)m/. In 
old English practice, taxation of costs. 
Taxation. The process of taxing or imposing a tax. See 
Assessment; Equalization; Tax; Withholding. 
Double taxation. See Double taxation. 
Progressive taxation. A taxing system in which the 
higher one's income, the higher the tax bracket one is 
put in. 
Proportional taxation. A system of taxation in which 
the rate of taxation is uniform no matter what the size 
of income. Compare Regressive taxation, below. 
Regressive taxation. A system in which, unlike progres
sive taxation, as more and more income is earned, the 
tax rate falls. 
Taxation of costs. The process of ascertaining and 
charging up the amount of costs and fees in an action to 
which a party is legally entitled, or which are legally 
chargeable. See e.g. Fed.R.Civil P. 54(d); 28 U.S.C.A. 
§ 1920. See also Costs. 
Taxatio norwicensis Itrekseysh(iy)ow norw;)chens;)s 
rnohr;)chens;)s/. A valuation of ecclesiastical benefices 
made through every diocese in England, by Walter, 
bishop of Norwich, delegated by the pope to this office in 
38 Hen. III. 
Tax audit. See Audit. 
Tax avoidance. The minimization of one's tax liability 
by taking advantage of legally available tax planning 
opportunities. Tax avoidance may be contrasted with 
tax evasion which entails the reduction of tax liability 
by using illegal means. Compare Tax evasion. 
Tax base. The total assessed value of all the property in 
a given area which determines the rate at which an 
individual property is assessed. 
Tax basis. See Basis. 
Tax benefit rule. A rule which limits the recognition of 
income from the recovery of an expense or loss properly 
deducted in a prior tax year to the amount of the 
deduction that generated a tax savings. Under the "tax 
benefit rule" if an amount deducted from gross income 
in a prior taxable year is recovered in a later year, the 
recovery is income in the later year. Tennessee Car
olina Transp., Inc. v. C.I.R., C.A.6, 582 F.2d 378, 379. 
Tax bracket. A specified interval of income to which a 
specific tax rate is applied. 
Marginal tax rate. The point where the highest level of 
income falls.

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1461 
Tax certificate. Instrument issued to the buyer of prop
erty at a tax sale which entitles the holder to the 
property thus purchased if it is not redeemed within the 
period provided by law. See also Tax deed. 
Tax court. The United States Tax Court is a court of 
record under Article I of the Constitution of the United 
States (see I.R.C. § 7441). The Tax Court tries and 
adjudicates controversies involving the existence of defi
ciencies or overpayments in income, estate, and gift 
taxes in cases where deficiencies have been determined 
by the Commissioner of Internal Revenue. 
At the option of the individual taxpayer, simplified 
procedures may be utilized for the trials of small tax 
cases, provided that in a case conducted under these 
procedures the decision of the court would be final and 
not subject to review by any court. All decisions other 
than small tax cases are subject to review by the United 
States Courts of Appeals and thereafter by the Supreme 
Court of the United States upon the granting of a writ of 
certiorari. 
State tax courts. Such courts exist in certain states, e.g. 
Maryland, Minnesota, New Jersey, Oklahoma, Oregon. 
Generally, court has jurisdiction to hear appeals in all 
tax cases and has power to modify or change any valua
tion, assessment, classification, tax or final order appeal
ed from. Certain of these tax courts (e.g. Minnesota) 
have small claims sessions at which citizens can argue 
their own cases without attorneys. 
Tax credit. An amount subtracted from an individual's 
or entity's tax liability to arrive at the total tax liability. 
A tax credit reduces the taxpayer's liability dollar for 
dollar, compared to a deduction which reduces taxable 
income-upon which the tax liability is calculated. A 
credit differs from a deduction to the extent that the 
former is subtracted from the tax while the latter is 
subtracted from income before the tax is computed. 
Foreign tax credit. If a U.S. citizen or resident incurs or 
pays income taxes to a foreign country on income sub
ject to U.S. tax, the taxpayer may be able to claim some 
of these taxes as a deduction or as a credit against the 
U.S. income. 
Investment tax credit. A reduction in federal taxes for 
purchasing certain property-primarily equipment. 
The objective in providing the credit was to encourage 
companies to make acquisitions resulting in a stronger 
economy. The Tax Reform Act of 1986 repealed the 
investment tax credit for property acquired after Janu
ary 1, 1986 with some exceptions for transition property. 
Tax deduction. A subtraction from gross income in 
arriving at taxable income. A deduction differs from a 
tax credit in that a deduction reduces taxable income 
and a credit reduces tax liability. See also Deduction. 
Tax deed. A proof of ownership of land given to the 
purchaser by the government after the land has been 
taken from another person by the government and sold 
for failure to pay taxes. See also Tax certificate. 
Tax deficiency notice. See Ninety (90) day letter. 
TAX INCREMENT FINANCING 
Taxers. Two officers yearly chosen in Cambridge, Eng
land, to see the true gauge of all the weights and 
measures. 
Tax evasion. Illegally paying less in taxes than the law 
permits; committing fraud in filing or paying taxes. An 
example includes reporting less income than actually 
received or deducting fictitious expenses. Such act is a 
crime and may result in an underpayment penalty. See 
I.R.C. § 7201. Compare Tax avoidance. See also Fraud 
(Tax fraud). 
Tax exempt. Term pertains to property used for edu
cational, religious, or charitable purposes which is ordi
narily exempted by law from assessment for taxes; or to 
certain bonds issued by the federal government or a 
State or one of its subdivisions. Interest on State and 
local government bonds is exempt from federal income 
taxation, and interest on bonds of the United States or 
its instrumentalities is correspondingly exempt from 
State income taxation. See also Charitable organizations; 
Tax exempt securities. 
Tax exemption. Immunity from the obligation of pay
ing taxes in whole or in part. 
Tax exempt securities. Investments that yield income 
that is tax exempt. Generally, tax exempts are munici
pal bonds with interest that is not taxed by the federal 
government. See also Tax exempt. 
Tax ferrets. Persons engaged in the business of search
ing for property omitted from taxation. Their activities 
when permitted are usually regarded as private rather 
than as part of a state agency. Pickett v. United States, 
C.C.A.Mo., 100 F.2d 909, 913. 
Tax foreclosure. Seizure and sale by public authority of 
property for non-payment of taxes. 
Tax fraud. See Fraud. 
Tax-free exchange. Transfers of property specifically 
exempted from income tax consequences by the tax law. 
Examples are a transfer of property to a controlled 
corporation under I.R.C. § 351(a) and a like-kind ex
change under § 1031(a). 
Tax haven. A country that imposes little or no tax on 
the profits from the transactions carried on from that 
country. 
Tax home. Since travel expenses of an employee are 
deductible only if the taxpayer is away from home, the 
deductibility of such expenses rests upon the definition 
of "tax home". The IRS position is that "tax home" is 
the business location, post or station of the taxpayer. 
Tax incentive. Government taxing policy intended to 
encourage a particular activity (e.g. mortgage financing 
of real estate sales). 
Tax increment financing. Technique used by munici
palities to finance commercial developments. Typically, 
the municipality issues bonds to finance land acquisition 
and other up-front costs and then uses the additional 
property taxes generated from the new development to 
service the debt.

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TAXING MASTER 
Taxing master. See Master. 
Taxing power. The governmental power to levy and 
collect taxes. U.S. Const., Art. I, § 8, cl. 1. See also 
Sixteenth Amendment. 
Tax injunction act. A statute that mandates that feder
al district courts not interfere with the assessment or 
collection of any state tax where a plain, speedy and 
efficient remedy is available in the state courts. 28 
U.S.C.A. § 1341. 
Tax liability. The amount which a taxpayer owes under 
the tax law after properly computing gross income and 
deductions, using the appropriate tax rate and subtract
ing any applicable tax credits. 
Tax loophole. A legal method of reducing tax liabili
ties, properly called tax avoidance. Tax avoidance 
should not be confused with tax evasion, which is illegal 
and punishable by penalties, fines, and imprisonment. 
See Tax avoidance. 
Tax laws. See Internal Revenue Code; Letter ruling. 
Tax levy. The order for· payment of taxes. Also, the 
determination of the total receipts to be collected by the 
tax. See Assessment; Levy. 
Tax lien. A lien on real estate in favor of a state or local 
government which may be foreclosed for nonpayment of 
taxes. The majority of the states have adopted the 
Uniform Federal Tax Lien Registration Act. See also 
Tax (Tax lien). 
Federal tax lien. A lien placed on property and all 
rights to property by the federal government for unpaid 
federal taxes. See I.R.C. § 6321. 
Tax loss carryback, carryforward. A provision in the 
Internal Revenue Code which allows an individual or 
corporation to apply current year losses against prior or 
subsequent year income to reduce their tax liability. 
Tax-option corporation. See Corporation (S Corpora
tion). 
Taxpayer. One who is subject to a tax on income, 
regardless of whether he or she pays the tax. I.R.C. 
§ 7701(a)(14). 
Taxpayer bill of rights. Provisions of the Technical 
and Miscellaneous Revenue Act of 1988 granting taxpay
ers specific legal rights when dealing with the IRS, 
including the right to: receive an explanation of the 
examination and collection processes; have representa
tion; make audio recordings of interviews with IRS 
personnel; rely on the IRS's written advice; file an 
application for relief with the IRS Ombudsman; and 
receive written notice of levy 30 days prior to enforce
ment. Pub.L. 100-647, § 6226 et seq. 
Tax preference items. Certain items which must be 
considered in calculating a taxpayer's alternative mini
mum tax. Such items are deducted in arriving at tax
able income for regular tax purposes, and added back in 
arriving at taxable income for alternative minimum tax 
purposes. I.R.C. § 55-58. See Alternative minimum tax. 
1462 
Tax rate. Amount of tax imposed on personal or corpo
rate income, capital gains, gifts, estates, sales, etc. See 
also Tax rate schedules. 
Marginal tax rate. The tax rate on the last dollar of 
taxable income earned by an individual or firm. 
Tax rate schedules. Schedules used to determine the 
tax on a given level of taxable income. Separate rate 
schedules are provided for married individuals filing 
jointly, unmarried individuals who maintain a house
hold, single taxpayers, estates and trusts, and married 
taxpayers filing separate returns. See also Tax tables. 
Tax rebate. Amount of money remitted by taxing au
thority after payment of taxes. See Rebate. 
Tax redemption. The act by which a taxpayer reclaims 
property which has been taken for nonpayment of taxes. 
He does so by paying the delinquent taxes in addition to 
interest, costs and penalties. 
Tax return. The form on which an individual, corpora
tion or other entity reports income, deductions, and 
exemptions and calculates their tax liability. A tax 
return is generally for a one year period, however, in 
some cases, the period may be less than a year. A 
federal tax return is filed with the Internal Revenue 
Service, and a state return is filed with the revenue 
department of the state. See also Return. 
Amended return. A tax return filed after the original 
return generally due to a correction of an error. 
Declaration of estimated taxes. The amount of tax ex
pected to be paid for the year. Self-employed individu
als, and those whose withheld taxes are not adequate to 
cover their tax liability, as well as corporations, estates, 
and trusts, must make estimated payments quarterly. 
Information return. A tax return filed by an entity 
listing the income, expenses, assets, and liabilities of the 
entity. A tax liability is generally not calculated on an 
information return, instead, it is a vehicle used to report 
the financial results of an entity for the tax period. An 
example of an information return is a partnership re
turn (Form 1065). I.R.C. § 6031 et seq. 
Joint return. Tax return filed jointly by both spouses; 
permitted even though only one had income. See Split
income. 
Separate return. Tax return filed by only one spouse 
and covering only his or her income. 
Tax roll. The official record maintained by cities and 
towns listing the names of taxpayers and the assessed 
property. 
Tax sale. Sale of property for nonpayment of taxes. See 
also Tax certificate. 
Tax shelter. A device used by a taxpayer to reduce or 
defer payment of taxes. Common forms or tax shelters 
include: limited partnership interests, real estate invest
ments which have deductions such as depreciation, in
terest, taxes, etc. The Tax Reform Act of 1986 limited 
the benefits of tax shelters significantly by classifying 
losses from such shelters as passive · and ruling that

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1463 
passive losses can only offset passive income in arriving 
at taxable income (with a few exceptions). Any excess 
losses are suspended and may be deducted in the year 
the investment is sold or otherwise disposed of. 
Tax ��situs". A state or jurisdiction which has a substan
tial relationship to assets subject to taxation. 
Tax straddle rule. The commodities straddle rule pre
vents a taxpayer from deferring income by requiring a 
loss on an identified straddle to be recognized when the 
offsetting position is closed. The straddle rules general
ly relate to intangibles such as rights to future events in 
contrast to more tangible assets such as stock. See 
1.R.C. §§ 165(c)(2), 1092. 
Tax surcharge. Tax added to another tax. See also 
Surcharge; Surtax. 
Tax tables. Tables established by taxing authorities 
from which taxes may be computed. The federal income 
tax system provides for separate rates for single taxpay
ers, married taxpayers filing a joint return, head of 
household, and married taxpayers filing separate re
turns. See also Tax rate schedules. 
Tax title. Title held by one who purchases property at a 
tax sale. See also Tax certificate; Tax deed. 
Tax warrant. Official process for collecting unpaid tax
es and under which property may be seized and sold. 
Tax year. The period covered by a tax return. Individ
uals generally file on a calendar year while corpora
tions, trusts, and other entities may file on a fiscal year. 
See Accounting period; Fiscal year. 
T.C. An abbreviation for the U.S. Tax Court. It is used 
to cite a Regular Decision of the U.S. Tax Court. 
T.C. Memo. An abbreviation used to refer to a Me�o
randum Decision of the U.S. Tax Court. 
Teach. To impart knowledge by means of lessons; to 
give instruction in; communicating knowledge; intro
ducing into or impressing on the mind as truth or 
information, and may be done as well through written 
communications, personal direction, through the public 
press, or through any means by which information may 
be disseminated, or it may be done by the adoption of 
sentiment expressed or arguments made by others 
which are distributed to others for their adoption and 
guidance. 
Teacher. One who teaches or instructs; especially one 
whose business or occupation is to teach others; an 
instructor; preceptor. Ortega v. Otero, 48 N.M. 588, 
154 P.2d 252, 254, 255, 257. 
Team or theame. In old English law, a royalty or 
privilege granted, by royal charter, to a lord of a manor, 
for the having, restraining, and judging of bondmen and 
villeins, with their children, goods, and chattels, etc. 
Team work. Within the meaning of an exemption law, 
this term means work done by a team as a substantial 
part of a man's business; as in farming, staging, express 
carrying, drawing of freight, peddling, or the transporta
tion of material used or dealt in as a business. 
TEMPERANCE 
Tearing of will. Under statute providing that will may 
be revoked by tearing, any act of tearing of paper on 
which will is written, however slight, constitutes an act 
of "tearing," if done with intent to revoke the will, but 
no act of tearing or cutting accomplishes such purpose 
unless done with intent to revoke. Fleming v. Fleming, 
367 Ill. 97, 10 N.E.2d 641, 642. 
Technical. Belonging or peculiar to an art or profession. 
Technical terms are frequently called in the books 
"words of art." Immaterial, not affecting substantial 
rights, without substance. 
Technical errors. Errors committed in course of trial 
which have not prejudiced the party and hence are not 
grounds for reversal. Fed.R.Civil P. 61; Fed.R.Crim.P. 
52. See also Harmless error doctrine. 
Technical mortgage. A true and formal mortgage, as 
distinguished from other instruments which, in some 
respects, have the character of equitable mortgages. See 
also Mortgage. 
Teding-penny. In old English law, a small tax or allow
ance to the sheriff from each tithing of his county 
towards the charge of keeping courts, etc. 
Teind masters Itiynd mrest�rzrma ° I. Those entitled to 
tithes. 
Teinland IteynlrendlOeyn° I. Sax. In old English law, 
land of a thane or Saxon noble; land granted by the 
crown to a thane or lord. 
Telegram. A telegraphic dispatch; a message sent by 
telegraph. Message transmitted by radio, teletype, ca
ble, any mechanical method of transmission or the like. 
U.C.C. § 1-201(41). 
Teligraphum Itel�grref�m/. An Anglo-Saxon charter of 
land. 
Teller. One who numbers or counts. An officer of a 
bank who receives or pays out money. Also one ap
pointed to count the votes cast in a deliberative or 
legislative assembly or other meeting. The name was 
also given to certain officers formerly attached to the 
English exchequer. 
Tellers in parliament. In the English parliament, the 
members of the house selected by the Speaker to count 
the members when a division takes place. 
Tellworc Itelw�rk/. That labor which a tenant was 
bound to do for his lord for a certain number of days. 
Tementale, or tenementale Ite(n�)m:;mteyliy/. A tax of 
two shillings upon every plow-land, a decennary. 
Temere It�miriy/. Lat. In the civil law, rashly; incon
siderately. A plaintiff was said temere litigare who 
demanded a thing out of malice, or sued without just 
cause, and who could show no ground or cause of action. 
Temperance. Habitual moderation in regard to the 
indulgence of the natural appetites and passions; re
strained or moderate indulgence; as, temperance in 
eating and drinking, temperance in the indulgence of joy 
or mirth. Not synonymous with abstinence. Mayfield

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TEMPERANCE 
v. Fidelity Casualty Co. of New York, 16 Cal.App.2d 611, 
61 P.2d 83, 89. 
Tempest. A violent or furious storm; a current of wind 
rushing with extreme violence, and usually accompanied 
with rain or snow. 
Templars /templ�rz/. A religious order of knighthood, 
instituted about the year 1119, and so called because the 
members dwelt in a part of the temple of Jerusalem, and 
not far from the sepulcher of our Lord. They enter
tained Christian strangers and pilgrims charitably, and 
their profession was at first to defend travelers from 
highwaymen and robbers. The order was suppressed 
A.D. 1307, and their substance given partly to the 
knights of St. John of Jerusalem, and partly to other 
religious orders. 
Temple. Two English inns of court, thus called because 
anciently the dwelling place of the Knights Templar. 
On the suppression of the order, they were purchased by 
some professors of the common law, and converted into 
hospitia or inns of court. They are called the "Inner" 
and "Middle Temple," in relation to Essex House, which 
was also a part of the house of the Templars, and called 
the "Outer Temple," because situated without Temple 
Bar. 
Temporalis /temp�reyl�s/. Lat. In the civil law, tem
porary; limited to a certain time. 
Temporalis actio /temp�reyl�s reksh(iy)ow/. An action 
which could only be brought within a certain period. 
Temporalis exceptio /temp�reyl�s �ksepsh(iy)ow/. A 
temporary exception which barred an action for a time 
only. 
Temporalities /temp�rrel�tiyz/. In English law, the lay 
fees of bishops, with which their churches are endowed 
or permitted to be endowed by the liberality of the 
sovereign, and in virtue of which they become barons 
and lords of parliament. In a wider sense, the money 
revenues of a church, derived from pew rents, subscrip
tions, donations, collections, cemetery charges, and other 
sources. 
Temporality. The laity; secular people. 
Temporal lords. The peers of England; the bishops are 
not in strictness held to be peers, but merely lords of 
parliament. 
Temporarily. Lasting for a time only, existing or con
tinuing for a limited time, not of long duration, not 
permanent, transitory, changing, but a short time. 
Temporary. That which is to last for a limited time 
only, as distinguished from that which is perpetual, or 
indefinite, in its duration. Opposite of permanent. 
Thus, temporary alimony is granted for the support of 
the wife pending the action for divorce; a temporary 
receiver is one appointed to take charge of property 
until a hearing is had and an adjudication made. 
As to temporary Disability; Ins anity; Injunction; and 
Statute, see those titles. 
1464 
Temporary administration. Fiduciary appointed by 
court to administer the affairs of a decedent estate for a 
short period of time before an administrator or executor 
can be appointed and qualified. 
Temporary alimony. Interim order of payment to 
spouse pending final outcome of action for divorce. See 
also Alimony. 
Temporary detention. Temporary exercise of custody 
pending final determination on merits of criminal case. 
Temporary disability. Healing period during which 
claimant is totally or partially unable to work due to 
injury, and continues as long as recovery or lasting 
improvement of injured person's condition can reason
ably be expected. Corral v. McCrory Corp., Fla., 228 
So.2d 900, 903. See also Disability; Temporary total dis
ability. 
Temporary Emergency Court of Appeals. The Eco
nomic Stabilization Act Amendments of 1971 (85 Stat. 
743) created a special court known as the Temporary 
Emergency Court of Appeals of the United States. The 
court has exclusive jurisdiction of all appeals from the 
district courts of the United States in cases and contro
versies arising under the economic stabilization laws, 
and consists of eight district and circuit judges appoint
ed by the Chief Justice. 
Temporary injunction. See Injunction; Preliminary in
junction; Temporary restraining order. 
Temporary restraining order. An emergency remedy 
of brief duration which may issue only in exceptional 
circumstances and only until the trial court can hear 
arguments or evidence, as the circumstances require, on 
the subject matter of the controversy and otherwise 
determine what relief is appropriate. Paddington Corp. 
v. Foremost Sales Promotions, Inc., 13 Ill.App.3d 170, 
300 N .E.2d 484, 487. Order which is issued to maintain 
status quo pending a hearing on an application for an 
injunction. Becker v. Becker, 66 Wis.2d 731, 225 
N.W.2d 884, 886. 
A temporary restraining order may be granted with
out written or oral notice to the adverse party or his 
attorney only if (1) it clearly appears from specific facts 
shown by affidavit or by the verified complaint that 
immediate and irreparable injury, loss, or damage will 
result to the applicant before the adverse party or his 
attorney can be heard in opposition, and (2) the appli
cant's attorney certifies to the court in writing the 
efforts, if any, which have been made to give the notice 
and the reasons supporting his claim that notice should 
not be required. Fed.R.Civil P. 65(b). 
See also Injunction; Injury (Irreparable injury); Prelimi
nary injunction. 
Temporary total disability. As used in workers' com
pensation law, means inability to return to substantial 
gainful employment requiring skills or activities compa
rable to those of one's previous gainful employment 
during healing or recovery period after injury. Total 
disability which is not permanent. Allen v. Workers' 
Compensation Com'r and Consolidation Coal Co., W.Va.,

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1465 
314 S.E.2d 401, 405. See also Disability; Total disabil
ity. 
Temporis exceptio /temp�r�s �ksepsh(iy)ow /. Lat. In 
the civil law, a plea of time; a plea of lapse of time, in 
bar of an action. Corresponding to the plea of prescrip
tion, or the statute of limitations, in our law. 
Tempus /temp�s/. Lat. In the civil and old English 
law, time in general. A time limited; a season; e.g., 
tempus pessonis, mast time in the forest. 
Tempus continuum /temp�s k�ntinyuw�m/. In the civ
il law, a continuous or absolute period of time. A term 
which begins to run from a certain event, even though 
he for whom it runs has no knowledge of the event, and 
in which, when it has once begun to run, all the days are 
reckoned as they follow one another in the calendar. 
Tempus enim modus tollendi obligationes et ac
tiones, quia tempus currit contra desides et sui juris 
contemptores /temp�s iyn�m mowd�s tolenday obl�gey
shiyowniyz et rekshiyowniyz, kway� temp�s k;)hr�t 
kontr� des�diyz et s(y)uway jur�s kontem(p)toriyz/. For 
time is a means of destroying obligations and actions, 
because time runs against the slothful and contemners 
of their own rights. 
Tempus semestre /temp�s s�mestriy/. In old English 
law, the period of six months or half a year, consisting of 
one hundred and eighty-two days. 
Tempus utile Itemp�s yUwt�liy/. In the civil law, a 
profitable or advantageous period of time. A term 
which begins to run from a certain event, only when he 
for whom it runs has obtained a knowledge of the event, 
and in which, when it has once begun to run, those days 
are not reckoned on which one has no experiundi potes
tas; i.e., on which one cannot prosecute his rights before 
a court. A period of time which runs beneficially: i.e. 
feast-days are not included, nor does it run against one 
absent in a foreign country, or on business of the repub
lic, or detained by stress of weather. But one detained 
by sickness is not protected from its running; for it runs 
where there is power to act by an agent as well as where 
there is power to act personally; and the sick man 
might have deputed his agent. 
Tenancy. A tenancy involves an interest in realty 
which passes to the tenant, and a possession exclusive 
even of that of landlord, except as lease permits land
lord's entry, and saving his right to enter to demand 
rent or to make repairs. Layton v. A. I. Namm & Sons, 
275 A.D. 246, 89 N.Y.S.2d 72, 74, 75. Possession or 
occupancy of land or premises under lease. Period of 
tenant's possession or occupancy. To constitute tenan
cy, tenant must acquire some definite control and pos
session of premises. Mercantile Realty Co. v. Allen 
Edmonds Shoe Corporation, 263 Ky. 597, 92 S.W.2d 837, 
839. 
See also Periodic tenancy; Tenant. 
General tenancy. A tenancy which is not fixed and 
made certain in point of duration by the agreement of 
the parties. 
TENANCY 
Joint tenancy. An estate in fee-simple, fee-tail, for life, 
for years, or at will, arising by purchase or grant to two 
or more persons. Joint tenants have one and the same 
interest, accruing by one and the same conveyance, 
commencing at one and the same time, and held by one 
and the same undivided possession. The primary inci
dent of joint tenancy is survivorship, by which the entire 
tenancy on the decease of any joint tenant remains to 
the survivors, and at length to the last survivor. 
Type of ownership of real or personal property by two 
or more persons in which each owns an undivided inter
est in the whole and attached to which is the right of 
survivorship. Single estate in property owned by two or 
more persons under one instrument or act. D'Ercole v. 
D'Ercole, D.C.Mass., 407 F.Supp. 1377, 1380. An estate 
held by two or more persons jointly, each having an 
individual interest in the whole and an equal right to its 
enjoyment during his or her life. In re Estelle's Estate, 
593 P.2d 663, 665, 122 Ariz. 109. 
See also Cotenancy. 
Periodic tenancy. See that term. 
Several tenancy. A tenancy which is separate, and not 
held jointly with another person. 
Tenancy at sufferance. See Tenant. 
Tenancy at will. See Tenant. 
Tenancy by the entirety. A tenancy which is created 
between a husband and wife and by which together they 
hold title to the whole with right of survivorship so that, 
upon death of either, other takes whole to exclusion of 
deceased heirs. Sams v. McDonald, 117 Ga.App. 336, 
160 S.E.2d 594, 597. It is essentially a "joint tenancy," 
modified by the common-law theory that husband and 
wife are one person, and survivorship is the predomi
nant and distinguishing feature of each. United States 
v. Jacobs, Ill. & N. Y., 306 U.S. 363, 59 S.Ct. 551, 555, 83 
L.Ed. 763. Neither party can alienate or encumber the 
property without the consent of the other. It is inherit
ed by the survivor of the two, and dissolution of mar
riage transforms it to tenancy in common. 
Tenancy for a period. A tenancy for years or for some 
fixed period. 
Tenancy for years. See Tenant 
Tenancy from month to month. See Tenant (Tenant at 
will). 
Tenancy from period to period. A periodic tenancy 
which runs from month to month or from year to year 
(though term usually refers to period of less than one 
year). 
Tenancy from year to year. A periodic tenancy which 
runs from one year to the next. See Periodic tenancy. 
Tenancy in common. A form of ownership whereby 
each tenant (i.e., owner) holds an undivided interest in 
property. Unlike a joint tenancy or a tenancy by the 
entirety, the interest of a tenant in common does not 
terminate upon his or her prior death (i.e., there is no 
right of survivorship). Assume, for example, B and C

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TENANCY 
acquire real estate as equal tenants in common, each 
having furnished one-half of the purchase price. Upon 
B's prior death, his one-half interest in the property 
passes to his estate or heirs. 
Interest in which there is unity of possession, but 
separate and distinct titles. The relationship exists 
where property is held by several distinct titles by unity 
of possession, and is not an estate but a relation between 
persons, the only essential being a possessory right, as to 
which all are entitled to equal use and possession. De 
Mik v. Cargill, Okl., 485 P.2d 229, 233. 
See also Cotenancy; Partition. 
Tenancy in coparcenary. Of historical value only today; 
formerly it was a form of concurrent ownership in which 
property was acquired by intestacy by the female line of 
heirs and arose only by descent. Today, it is governed 
by the rules of tenancy in common. 
Tenancy in partnership. Real estate held by partner
ship. See Uniform Partnership Act, § 25. 
Tenant. In the broadest sense, one who holds or possess
es lands or tenements by any kind of right or title, 
whether in fee, for life, for years, at will, or otherwise. 
In a more restricted sense, one who holds lands of 
another; one who has the temporary use and occupation 
of real property owned by another person (called the 
"landlord"), the duration and terms of his tenancy being 
usually fixed by an instrument called a "lease." One 
who occupies another's land or premises in subordina
tion to such other's title and with his assent, express or 
implied. One renting land and paying for it either in 
money or part of crop or equivalent. 
See also Holdover tenant; Lessee; Tenancy. 
Feudal law. One who holds of another (called "lord" or 
"superior") by some service; as fealty or rent. 
Joint tenants. Two or more persons to whom are grant
ed lands or tenements to hold in fee-simple, fee-tail, for 
life, for years, or at will. Persons who own lands by a 
joint title created expressly by one and the same deed or 
will. Joint tenants have one and the same interest, 
accruing by one and the same conveyance, commencing 
at one and the same time, and held by one and the same 
undivided possession. See also Tenancy (Joint tenancy). 
Land tenant. See that title. 
Prime tenant. Commercial or professional tenant with 
established reputation that leases substantial, and 
usually most preferred, space in office building, shop
ping center, etc. Such type tenant is important in 
securing construction financing and in attracting other 
quality tenants. 
Quasi tenant at sufferance. An under-tenant, who is in 
possession at the determination of an original lease, and 
is permitted by the reversioner to hold over. 
Sole tenant. He that holds lands by his own right only, 
without any other person being joined with him. 
Tenant at sufferance. Such tenancy arises when one 
comes into the possession of property by lawful title, but 
1466 
wrongfully holds over after the termination of his inter
est. Warehouse Distributors, Inc. v. Prudential Storage 
& Van Corp., 208 Va. 784, 161 S.E.2d 86, 89. He has no 
estate nor title but only naked possession without right 
and wrongfully, and stands in no privity to landlord and 
is not entitled to notice to quit, and is a bare licensee to 
whom landlord owes merely duty not wantonly nor 
willfully to injure him. Welch v. Rice, 61 Wyo. 511, 159 
P.2d 502, 506, 509. 
Tenant at will. One who holds possession of premises 
by permission of owner or landlord, but without fixed 
term. Characteristics of a "tenancy at will," whether 
created by express contract or by implication of law, are 
uncertain duration and right of either party to termi
nate on proper notice. Myers v. East Ohio Gas Co., 51 
Ohio St.2d 121, 5 O.O.3d 103, 364 N.E.2d 1369, 1372. 
Tenant a volunte. L. Fr. A tenant at will. 
Tenant by copy of court roll (shortly, "tenant by copy") is 
the old-fashioned name for a copyholder. 
Tenant by the curtesy. One who, on the death of his wife 
seised of an estate of inheritance, after having by her 
issue born alive and capable of inheriting her estate, 
holds the lands and tenements for the term of his life. 
Tenant by the manner. One who has a less estate than a 
fee in land which remains in the reversioner. He is so 
called because in avowries and other pleadings it is 
specially shown in what manner he is tenant of the 
land, in contradistinction to the veray tenant, who is 
called simply "tenant." 
Tenant for life. One who holds lands or tenements for 
the term of his own life, or for that of any other person 
(in which case he is called "pur auter vie'), or for more 
lives than one. 
Tenant for years. One who has the temporary use and 
possession of lands or tenements not his own, by virtue 
of a lease or demise granted to him by the owner, for a 
determinate period of time, as for a year or a fixed 
number of years. 
Tenant from year to year. One who holds lands or 
tenements under the demise of another, where no cer
tain term has been mentioned, but an annual rent has 
been reserved. One who holds over, by consent given 
either expressly or constructively, after the determina
tion of a lease for years. See also Tenan cy. 
Tenant in capite. In feudal and old English law, tenant 
in chief; one who held immediately under the king, in 
right of his crown and dignity. 2 Bl.Comm. 60. 
Tenant in common. Tenants who hold the same land 
together by several and distinct titles, but by unity of 
possession, because none knows his own severalty, and 
therefore they all occupy promiscuously. Where two or 
more hold the same land, with interests accruing under 
different titles, or accruing under the same title, but at 
different periods, or conferred by words of limitation 
importing that the grantees are to take in distinct 
shares. See also Tenancy (Tenancy in common ).

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1467 
Tenant in dower. This arises where the husband of a 
woman is seised of an estate of inheritance and dies; in 
this case the wife shall have the third part of all the 
lands and tenements whereof he was seised at any time 
during the coverture, to hold to herself for life, as her 
dower. 2 Bl.Comm. 129. 
Tenant in fee-simple (or tenant in fee). He who has 
lands, tenements, or hereditaments, to hold to him and 
his heirs forever, generally, absolutely, and simply; 
without mentioning what heirs, but referring that to his 
own pleasure, or to the disposition of the law. 
Tenant in severalty. One who holds lands and tene
ments in his own right only, without any other person 
being joined or connected with him in point of interest 
during his estate therein. 2 Bl.Comm. 179. 
Tenant in tail. One who holds an estate in fee-tail, that 
is, an estate which, by the instrument creating it, is 
limited to some particular heirs, exclusive of others; as 
to the heirs of his body or to the heirs, male or female, of 
his body. 
Tenant in tail ex provisione viri. Where an owner of 
lands, upon or previously to marrying a wife, settled 
lands upon himself and his wife, and the heirs of their 
two bodies begotten, and then died, the wife, as survivor, 
became tenant in tail of the husband's lands, in conse
quence of the husband's provision (ex provisione viri). 
Originally, she could bar the estate-tail like any other 
tenant in tail; but the husband's intention having been 
merely to provide for her during her widowhood, and 
not to enable her to bar his children of their inheri
tance, she was early restrained from so doing, by the 
statute 32 Hen. VII, c. 36. 
Tenant of the demesne. One who is tenant of a mesne 
lord; as, where A. is tenant of B., and C. of A., B. is the 
lord, A. the mesne lord, and C. tenant of the demesne. 
Tenant paravaile. The under-tenant of land; that is, 
the tenant of a tenant; one who held of a mesne lord. 
Tenants by the verge. The "same nature as tenants by 
copy of court roll [i.e., copyholders]. But the reason why 
they be called 'tenants by the verge' is for that, when 
they will surrender their tenements into the hands of 
their lord to the use of another, they shall have a little 
rod (by the custome) in their hand, the which they shall 
deliver to the steward or to the bailife, 
* * 
and 
the steward or bailife, according to the custome, shall 
deliver to him that taketh the land the same rod, or 
another rod, in the name of seisin; and for this cause 
they are called 'tenants by the verge, ' but they have no 
other evidence [title-deed] but by copy of court roll." 
Tenant to the prrecipe. Before the English fines and 
recoveries act, if land was conveyed to a person for life 
with remainder to another in tail, the tenant in tail in 
remainder was unable to bar the entail without the 
concurrence of the tenant for life, because a common 
recovery could only be suffered by the person seised of 
the land. In such a case, if the tenant for life wished to 
concur in barring the entail, he usually conveyed his 
life-estate to some other person, in order that the 
TENDER 
prrecipe in the recovery might be issued against the 
latter, who was therefore called the "tenant to the 
prrecipe." 
Tenantable repair. Such a repair as will render prem
ises fit for present habitation. See Habitability (Warranty 
of habitability). 
Tenant-right. In England, the right of tenant on termi
nation of tenancy to payment for unexhausted improve
ments made on his holding. Such is governed by the 
Agricultural Holdings Act of 1986. 
Tenant's fixtures. This phrase signifies things which 
are fixed to the freehold of the demised premises, but 
which the tenant may detach and take away, provided 
he does so in season. 
Tencon. L. Fr. A dispute; a quarrel. 
Tend. To have a leaning; serve, contribute, or conduce 
in some degree or way, or have a more or less direct 
bearing or effect; to be directed as to any end, object, or 
purpose; to have a tendency, conscious or unconscious, 
to any end, object or purpose. Rogers v. State, 122 
Tex.Cr.R. 331, 54 S.W.2d 1010, 1012. 
In old English law, to tender or offer. 
Tender. An offer of money. The act by which one 
produces and offers to a person holding a claim or 
demand against him the amount of money which he 
considers and admits to be due, in satisfaction of such 
claim or demand, without any stipulation or condition. 
As used in determining whether one party may place 
the other in breach of contract for failure to perform, 
means a readiness and willingness to perform in case of 
concurrent performance by other party, with present 
ability to do so, and notice to other party of such 
readiness. Monroe St. Properties, Inc. v. Carpenter, 
C.A.Ariz., 407 F.2d 379, 380. Essential characteristics of 
tender are unconditional offer to perform coupled with 
manifested ability to carry out the offer and production 
of subject matter of tender. Collins v. Kingsberry 
Homes Corp., D.C.Ala., 243 F.Supp. 741, 744. 
At a settlement under an agreement of sale the seller 
tenders the executed deed to the purchaser, who tenders 
the remainder of the purchase price to the seller. 
The actual proffer of money, as distinguished from 
mere proposal or proposition to proffer it. Hence mere 
written proposal to pay money, without offer of cash, is 
not "tender." 
Tender, though usually used in connection with an 
offer to pay money, is properly used in connection with 
offer of property or performance of duty other than 
payment of money. 
Tender, in common law pleading, is a plea by defen
dant that he has been always ready to pay the debt 
demanded, and before the commencement of the action 
tendered it to the plaintiff, and now brings it into court 
ready to be paid to him, etc. 
Legal tender is that kind of coin, money, or circulating 
medium which the law compels a creditor to accept in 
payment of his debt, when tendered by the debtor in the 
right amount. See also Legal tender.

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TENDER 
See also Legally sufficient tender. 
Tender of issue. A form of words in common law plead
ing, by which a party offers to refer the question raised 
upon it to the appropriate mode of decision. The com
mon tender of an issue of fact by a defendant is ex
pressed by the words, "and of this he puts himself upon 
the country." 
Tender of delivery. Tender of delivery requires that 
the seller put and hold conforming goods at the buyer's 
disposition and give the buyer any notification reason
ably necessary to enable him to take delivery. The 
manner, time and place for tender are determined by 
the agreement and Article 2 of the Uniform Commercial 
Code. See U.C.C. § 2-503. Tender connotes such per
formance by the tendering party as puts the other party 
in default if he fails to proceed in some manner. U.C.C. 
§ 2-503, Comment 1. 
Tender offer. A public announcement by a company or 
individual indicating that it will pay a price above the 
current market price for the shares "tendered" of a 
company it wishes to acquire or take control of. An 
offer to purchase shares made by one company direct to 
the stockholders of another company, sometimes subject 
to a minimum and lor a maximum that the offeror will 
accept, communicated to the shareholders by means of 
newspaper advertisements and (if the offeror can obtain 
the shareholders list, which is not often unless it is a 
friendly tender) by a general mailing to the entire list of 
shareholders, with a view to acquiring control of the 
second company. Such purchase offer is used in an 
effort to go around the management of the second com
pany, which is resisting acquisition. 
Tender offers are one of several types of corporate 
takeover techniques, and are regulated by state and 
federal securities laws; e.g., Williams Act § 14(e), 15 
U.S.C.A. § 78n(e). See also Leveraged buyout; Saturday 
night special; Takeover bid. 
Tender of performance. Offer to perform which is 
commonly necessary to hold the defaulting party to a 
contract liable for breach. See also Tender. 
Tender years doctrine. Under this doctrine courts gen
erally award custody of children of tender years to 
mother unless she is found to be unfit. Saunderson v. 
Saunderson, Ala.Civ.App., 379 So.2d 91, 92. In many 
states this doctrine has been abolished by statute, e.g., 
N.Y.Dom.Rel.L. § 240, or by judicial decisions, e.g., Ar
nold v. Arnold, 95 Nev. 951, 604 P.2d 109. 
Tenement Iten�m�ntl. This term, in its common accep
tation, is only applied to houses and other buildings, but 
in its original, proper, and legal sense it signifies every
thing that may be holden, provided it be of a permanent 
nature, whether· it be of a substantial and sensible, or of 
an unsubstantial, ideal, kind. Thus, liberum tenemen
tum, frank tenement, or freehold, is applicable not only 
to lands and other solid objects, but also to offices, rents, 
commons, advowsons, franchises, peerages, etc. At com
mon law, "tenements" included lands, other inheritanc
es, capable of being held in freehold, and rents. Wood v. 
Galpert, Ohio Com.Pl., 199 N.E.2d 900, 901. 
1468 
Dominant tenement. One for the benefit or advantage 
of which an easement exists or is enjoyed. 
Servient tenement. One which is subject to the burden 
of an easement existing for or enjoyed by another tene
ment. See Easement. 
Tenement house. Low rent apartment building, usually 
in poor condition, meeting only minimal, if even that, 
safety and sanitary conditions. 
Tenemental land lten�ment::ll lrend/. Land distributed 
by a lord among his tenants, as opposed to the demesnes 
which were occupied by himself and his servants. 
Tenementis legatis Iten::lment::lm l::lgeyt::ls/. An ancient 
writ, lying to the city of London, or any other corpora
tion (where the old custom was that men might devise 
by will lands and tenements, as well as goods and 
chattels), for the hearing and determining any contro
versy touching the same. 
Tenendum It::lnend::lm/. Lat. To be holden. It was 
used to indicate the lord of whom the land was to be 
held and the tenure by which it was to be held, but, 
since all freehold tenures have been converted into 
socage, the tenendum is of no further use, and is there
fore joined in the habendum,-"to have and to hold." 
Tenens Itenenz/. A tenant; the defendant in a real 
action. 
Tenentibus in assisa non onerandis It::lnent�b::ls in 
::lsayz::l non on::lrrend::ls/. A writ that formerly lay for 
him to whom a disseisor had alienated the land whereof 
he disseised another, that he should not be molested in 
assize for damages, if the disseisor had wherewith to 
satisfy them. 
Tenere It::lniriy/. Lat. In the civil law, to hold; to hold 
fast; to have in possession; to retain. 
In relation to the doctrine of possession, this term 
expresses merely the fact of manual detention, or the 
corporal possession of any object, without involving the 
question of title; while habere (and especially possidere) 
denotes the maintenance of possession by a lawful claim; 
i.e., civil possession, as distinguished from mere natural 
possession. 
Teneri It::lniray/. The Latin name for that clause in a 
bond in which the obligor expresses that he is "held and 
firmly bound" to the obligee, his heirs, etc. 
Tenet; tenuit Iten::ltltenyuw::ltl. Lat. He holds; he 
held. In the Latin forms of the writ of waste against a 
tenant, these words introduced the allegation of tenure. 
If the tenancy still existed, and recovery of the land was 
sought, the former word was used (and the writ was said 
to be "in the tenet"). If the tenancy had already deter
mined, the latter term was used (the writ being de
scribed as "in the tenuit"), and then damages only were 
sought. 
Tenheded, or tienheofed Itenhed(::ld)/. In old English 
law, a dean. 
10-K. The name of the annual financial report required 
by the SEC of nearly all publicly-held corporations.

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1469 
This report contains more information than the annual 
report to stockholders. Corporations must send a copy 
of the 10-K to those stockholders who request it. See 
also 10-0 . 
Tenmentale ltEmm;}nteyl/. The number of ten men, 
which number, in the time of the Saxons, was called a 
"decennary;" and ten decennaries made what was 
called a "hundred." Also a duty or tribute paid to the 
crown, consisting of two shillings for each plowland. 
Tenne ltEmiy/. A term of heraldry, meaning orange 
color. In engravings it should be represented by lines in 
bend sinister crossed by others bar-ways. Heralds who 
blazon by the names of the heavenly bodies, call it 
"dragon's head, " and those who employ jewels, "ja
cinth." It is one of the colors called "stainand." 
Tennessee Valley Authority (TVA). A government
owned corporation that conducts a unified program of 
resource development for the advancement of economic 
growth in the Tennessee Valley region. The Authority's 
program of activities includes flood control, navigation 
development, electric power production, fertilizer devel
opment, recreation improvement, and forestry and wild
life development. While its power program is financial
ly self-supporting, other programs are financed primari
ly by appropriations from Congress. 
Tenor. A term used in pleading to denote that an exact 
copy is set out. "Tenor, " in pleading a written instru
ment, imports that the very words are set out. "Pur
port" does not import this, but is equivalent only to 
"substance." 
By the tenor of a deed, or other instrument in writing, 
is signified the matter contained therein, according to 
the true intent and meaning thereof. 
In chancery pleading. A certified copy of records of 
other courts removed in chancery by certiorari. 
Tenore indictamenti mittendo It;}noriy ;}ndikt;}m€mtay 
m;}timdow I. A writ whereby the record of an indict
ment, and the process thereupon, was called out of 
another court into the queen's bench. 
Tenore prresentium It;}noriy pr;}zEmsh(iy);}m/. By the 
tenor of these presents, i.e., the matter contained there
in, or rather the intent and meaning thereof. 
Tenor est qui legem dat feudo Iten;}r est kway liyj;}m 
dret fyliwdow/. It is the tenor [of the feudal grant] 
which regulates its effect and extent. 
1O-Q. A quarterly report that must be filed with the 
Securities and Exchange Commission by any company 
whose securities are traded on a national or over-the
counter market. See also 10 -K. 
Tenserire ltensiriyiy/. A sort of ancient tax or military 
contribution. 
Tentative trust. See Trust (Totten trust). 
Tenterden's Act Itent;}rd;}nz rekt/. In English law, the 
statute 9 Geo. IV, c. 14, taking its name from Lord 
Tenterden, who procured its enactment, which is a spe-
TENURE 
cies of extension of the statute of frauds, and requires 
the reduction of contracts to writing. 
Tenth Amendment. An amendment to the U.S. Consti
tution (1791) which provides that the powers not del
egated to the federal government are reserved to the 
States or to the people. 
Tenths ItenOs/. In English law, a temporary aid issuing 
out of personal property, and granted to the king by 
parliament; formerly the real tenth part of all the 
movables belonging to the subject. 1 Bl.Comm. 308. 
In English ecclesiastical law, the tenth part of the 
annual profit of every living in the kingdom, formerly 
paid to the pope, but by statute 26 Hen. VIII, c. 3, 
transferred to the crown, and afterwards made a part of 
the fund called "Queen Anne's Bounty." 1 Bl.Comm. 
284-286. 
Tenuit Itenyuw;}t/. A term used in stating the tenure in 
an action for waste done after the termination of the 
tenancy. See Tenet. 
Tenura Iteny;}r;}/. In old English law, tenure. 
Tenura est pactio contra communem feudi naturam 
ac rationem, in contractu interposita Iteny;}r;} est 
preksh(iy)ow kontr;} k;}myuwn;}m fyuwday n;}tylir;}m rek 
rreshiyown;}m, in k;}ntrrekt(y)uw int;}rpoz;}t;}/. Tenure is 
a compact contrary to the common nature and reason of 
the fee, put into a contract. 
Tenure Iteny;}r/. Generally, tenure is a right, term, or 
mode of holding or occupying, and "tenure of an office" 
means the manner in which it is held, especially with 
regard to time. Winterberg v. University of Nevada 
System, 89 Nev. 358, 513 P.2d 1248, 1250. 
Status afforded to teacher or professor upon comple
tion of trial period, thus protecting him or her from 
summary dismissal without sufficient cause or economic 
reasons. A faculty appointment for an indefinite period 
of time. University Educ. Ass'n. v. Regents of Universi
ty of Minnesota, Minn., 353 N.W.2d 534, 540. Tenure 
denotes relinquishment of the employer's unfettered 
power to terminate the employee's services. Zumwalt v. 
Trustees of California State Colleges, 31 Cal.App.3d 611, 
107 Cal.Rptr. 573, 579. 
Term of office. Duration of holding public or private 
office. The tenure of federal judges is during life and 
good behavior. The tenure of merit system employees is 
during satisfactory performance of duties until a fixed 
age of retirement unless the position is discontinued. 
Area tenure. Term descriptive of tenure at certain 
grade levels and for certain specified subjects. Baer v. 
Nyquist, 40 A.D.2d 925, 338 N.Y.S.2d 257, 259. 
Feudal law. The mode or system of holding lands or 
tenements in subordination to some superior which, in 
feudal ages, was the leading characteristic of real prop
erty. Gibbs v. Titelman, D.C.Pa., 369 F.Supp. 38, 49. 
Tenure is the direct result of feudalism, which sepa
rated the dominium directum (the dominion of the soil), 
which is placed mediately or immediately in the crown, 
from the dominion utile (the possessory title), the right

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TENURE 
to the use and profits in the soil, designated by the term 
"seisin," which is the highest interest a subject can 
acquire. Kavanaugh v. Cohoes Power & Light Corpora
tion, 114 Misc. 590, 187 N.Y.S. 216, 231. 
Wharton gives the following list of tenures which 
were ultimately developed: 
Lay Tenures 
I. Frank tenement, or freehold. (1) The military 
tenures (abolished, except grand serjeanty, and reduced 
to free socage tenures) were: Knight service proper, or 
tenure in chivalry; grand serjeanty; cornage. (2) Free 
socage, or plow-service; either petit serjeanty, tenure in 
burgage, or gavelkind. 
II. Villeinage. (1) Pure villeinage (whence copyholds 
at the lord's [nominal] will, which is regulated according 
to custom). (2) Privileged villeinage, sometimes called 
ttvillein socage" (whence tenure in ancient demesne, 
which is an exalted species of copyhold, held according 
to custom, and not according to the lord's will), and is of 
three kinds: Tenure in ancient demesne; privileged 
copyholds, customary freeholds, or free copyholds; copy
holds of base tenure. 
Spiritual Tenures 
I. Frankalmoigne, or free alms. 
II. Tenure by divine service. 
Tenure by divine service. Exists where an ecclesiasti
cal corporation, sole or aggregate, holds land by a cer
tain divine service; as, to say prayers on a certain day 
in every year, ttor to distribute in almes to an hundred 
poore men an hundred pence at such a day." 
Tenured faculty. Those members of a school's teaching 
staff who hold their position for life or until retirement. 
They may not be discharged except for cause. 
Term. A word or phrase; an expression; particularly 
one which possesses a fixed and known meaning in some 
science, art, or profession. 
A fixed and definite period of time; implying a period 
of time with some definite termination. First-Citizens 
Bank & Trust Co. v. Conway Nat. Bank, App., 282 S.C. 
303, 317 S.E.2d 776, 778. Period of determined or pre
scribed duration. A specified period of time; e.g. term 
of lease, loan, contract, court session, public office, sen
tence. 
In civil law, a space of time granted to a debtor for 
discharging his obligation. 
Bounds, limitation, or extent of time for which an 
estate is granted; as when a man holds an estate for any 
limited or specific number of years, which is called his 
ttterm," and he himself is called, with reference to the 
term he so holds, the tttermor," or tttenant of the term." 
Word, phrase, or condition in a contract, instrument, 
or agreement which relates to a particular matter. 
V.C.C. § 1-201(42). See also Open price term. 
When used with reference to a court, signifies the 
space of time during which the court holds a session. A 
session signifies the time during the term when the 
1470 
court sits for the transaction of business, and the session 
commences when the court convenes for the term, and 
continues until final adjournment, either before or at 
the expiration of the term. The term of the court is the 
time prescribed by law during which it may be in 
session. The session of the court is the time of its actual 
sitting. But ttterm" and ttsession" are often used inter
changeably. See also Session; and Term of court, below. 
General term. A phrase used in some jurisdictions to 
denote the ordinary session of a court, for the trial and 
determination of causes, as distinguished from a special 
. term, for the hearing of motions or arguments or the 
despatch of various kinds of formal business, or the trial 
of a special list or class of cases. Or it may denote a 
sitting of the court in bane. 
Regular term. A term begun at the time appointed by 
law, and continued, in the discretion of the court, to 
such time as it may appoint, consistent with the law. 
Special term. In court practice in certain states, that 
branch of the court which is held by a single judge for 
hearing and deciding in the first instance motions and 
causes of equitable nature is called the ttspecial term," 
as opposed to the "general term," held by three judges 
(usually) to hear appeals. 
Peculiar or unusual conditions imposed on a party 
before granting some application to the favor of the 
court. 
Term attendant on the inheritance. See Attendant terms. 
Term bonds. A bond issue whose component bonds all 
mature at the same time. Contrast with ttserial bonds." 
See also Bond. 
Term fee. In English practice, a certain sum which a 
solicitor is entitled to charge to his client, and the client 
to recover, if successful, from the unsuccessful party; 
payable for every term in which any proceedings subse
quent to the summons shall take place. 
Term for deliberating. The time given to the beneficiary 
heir, to examine if it be for his interest to accept or 
reject the succession which has fallen to him. 
Term for years. An estate for years and the time during 
which such estate is to be held are each called a ttterm;" 
hence the term may expire before the time, as by a 
surrender. 
Term in gross. A term of years is said to be either in 
gross (outstanding) or attendant upon the inheritance. 
It is outstanding, or in gross, when it is unattached or 
disconnected from the estate or inheritance, as where it 
is in the hands of some third party having no interest in 
the inheritance; it is attendant, when vested in some 
trustee in trust for the owner of the inheritance. 
Term life insurance. See Insurance. 
Term loan. A loan with a specified maturity date, as 
opposed to a demand loan which is due whenever the 
lender requests payment. 
Term of court. The period of time prescribed by law 
during which a court holds session. The Supreme Court

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sits in an annual term that begins on the first Monday
in October and in recent years ordinarily has ended in
the first week of July. The Court may also hold special
terms as necessary. The U.S. district courts do not have
formal terms, but rather the times for holding regular
sessions are determined by local rules of the respective
courts. 28 U.S.C.A. §§ 2, 138, 139. See also General
term; Regular term; Special term, above.-
Term of lease. The word "term," when used in connec
tion with a lease, means the period which is granted for
the lessee to occupy the premises, and does not include
the time between the making of the lease and the
tenant's entry. De Pauw University v. United Electric , Coal Cos., 299 Ill.App. 339, 20 N.E.2d 146, 149.
Term of office. The period during which elected officer
or appointee is entitled to hold office, perform its func
tions, and enjoy its privileges and emoluments.
Term probatory. The period of time allowed to the
promoter of an ecclesiastical suit to produce his witness
es, and prove the facts on which he rests his case.
Term to conclude. In English ecclesiastical practice, an
appointment by the judge of a time at which both
parties are understood to renounce all further exhibits
and allegations.
Term to propound all things. In English ecclesiastical
practice, an appointment by the judge of a time at which
both parties are to exhibit all the acts and instruments
which make for their respective causes.
Under terms. A party is said to be under terms when an
indulgence is granted to him by the court in its discre
tion, on certain conditions. Thus, when an injunction is
granted ex parte, the party obtaining it is put under
terms to abide by such order as to damages as the court
may make at the hearing.
Termes de la Ley. Terms of the law. The name of it
lexicon of the law French words and other technicalities
of legal language in old times.
Terminable interest. An interest in property which
terminates upon the death of the holder or upon the
occurrence of some other specified event. The transfer
of a terminable interest by one spouse to the other
spouse may not qualify for the marital deduction.
Terminable property. Name sometimes given to prop
erty of such a nature that its duration is not perpetual
or indefinite, but is limited or liable to terminate upon
the happening of an event or the expiration of a fixed
term; e.g., a leasehold, a life-annuity, etc.
Terminate. To put an end to; to make to cease; to end.
Perruccio v. Allen, 156 Conn. 282, 240 A.2d 912, 914.
Terminating building societies. Societies, in England,
where the members commence their monthly contribu
tions on a particular day, and continue to pay them
until the realization of shares to a given amount for
each member, by the advance of the capital of the
society to such members as required it, and the payment
of interest as well as principal by them, so as to insure
TERMINUS
such realization within a given period of years. They
have been superseded by permanent building societies.
Termination. End in time or existence; close; cessa
tion; conclusion. Perruccio v. Allen, 156 Conn. 282, 240
A.2d 912, 914.
Word for purposes of insurance, refers to the expira
tion of a policy by lapse of the policy. Waynesville Sec.
Bank v. Stuyvesant Inc. Co., Mo.App., 499 S.W.2d 218,
220.
With respect to a lease or contract, term refers to an
ending, usually before the end of the anticipated term of
the lease or contract, which termination may be by
mutual agreement or may be by exercise of one party of
one of his remedies due to the default of the other party.
As regards a partnership, term refers to a winding up
and cessation of the business as opposed to only a
technical ending (as upon the death of a partner) which
is a dissolution. A dissolved partnership may terminate
or may be continued by a partnership of the remaining
partners, including perhaps the estate or heirs of the
deceased partner.
Under the Uniform Commercial Code, "termination"
means legally ending a contract without its being bro
ken by either side. U.C.C. § 2-106.
See also Dissolution; Expiration; Lapse.
Termination of conditional contract. To abrogate so
much of it as remains unperformed, doing away with
existing agreement under agreed terms and conse
quences. To put an end to all of the unperformed
portions thereof. Blodgett v. Merritt Annex Oil Co., 19
Cal.App.2d 169, 65 P.2d 123, 125.
Termination of employment. Within policies provid
ing that insurance should cease immediately upon ter
mination of employment, means a complete severance of
relationship of employer and employee. Edwards v.
Equitable Life Assur. Soc. of United States, 296 Ky. 448,
177 S.W.2d 574, 577, 578. See also Employment at will;
. Wrongful discharge.
Terminer It�rm:m:)r/. L. Fr. To determine. See Oyer
and terminer.
Termini It�rm:)nay/. Lat. Ends; bounds; limiting or
terminating points.
Termino Itermiynow/. In Spanish law, a common; com-
mon land. Common because of vicinage.
Term life insurance. See Ins urance.
Terminum It�rm:)n:)m/. A day given to a defendant.
Terminum qui preteriit, writ of entry ad Irit :)v €mtriy
red t�rm:)n:)m kway pr:)tE�hriy:)t/. A writ which lay for
the reversioner, when the possession was withheld by
the lessee, or a stranger, after the determination of a
lease for years.
Terminus It�rm:)n:)sl. Boundary; a limit, either of
space or time.
The phrases "terminus a quo" and "terminus ad
quem" are used, respectively, to designate the starting
point and terminating point of a private way. In the

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TERMINUS 
case of a street, road, or railway, either end may be, and 
commonly is, referred to as the "terminus." 
Terminus annorum certus debet esse et determinatus 
/t�rm:m�s ren6r�m s�rt�s deb�t eSlY et d�t�r
m�neyt�s/ . A term of years ought to be certain and 
determinate. 
Terminus et feodum non possunt constare simui in 
una eademque persona /t�rm�n�s et fyuwd�m non 
p6s�nt konsteriy saym�l in yuwn� iyeydemkwiy p�r
s6wn�/. A term and the fee cannot both be in one and 
the same person at the same time. 
Terminus hominis /t�rm�n�s h6m�n�s/. In English ec
clesiastical practice, a time for the determination of 
appeals, shorter than the terminus juris, appointed by 
the judge. 
Terminus juris It�rm�n�s j�r�s/. In English ecclesiasti
cal practice, the time of one or two years, allowed by law 
for the determination of appeals. 
Termor /t�rm�r/. He that holds lands or tenements for 
a term of years or life. But we generally confine the 
application of the word to a person entitled for a term of 
years. 
Terms. Conditions, obligations, rights, price, etc., as 
specified in contract or instrument. See also Term. 
Terms of trust. The phrase "terms of the trust" means 
the manifestation of intention of the settlor with respect 
to the trust expressed in a manner which admits of its 
proof in judicial proceedings. Restatement, Second, 
Trusts § 4. 
Terms to be under. A party is said to be under terms, 
when an indulgence is granted to him by the court in its 
discretion, on certain conditions. Thus, when an injunc
tion is granted ex parte, the party obtaining it is put 
under terms to abide by such order as to damages as the 
court may make at the hearing. 
Terra /tehr�/. Lat. Earth; soil; arable land .. 
Terra affirmata Itehr� ref�rmeyt�/. Land let to farm. 
Terra boscalis /tehr� boskeyl�s/. Woody land. 
Terra culta /tehr� k�lt�/. Cultivated land. 
Terra debilis /tehr� deb�l�s/. Weak or barren land. 
Terra dominica, or indominicata /tehr� d�min�k�rin-
d�min�keyt�/. The demesne land of a manor. 
Terrre dominicales regis /tehriy d�min�keyliyz riyj�s/. 
The demesne lands of the crown. 
Terra excultabilis /tehr� eksk�lteyb�l�s/. Land which 
may be plowed. 
Terra extendenda /tehr� ekstendend�/. A writ ad
dressed to an escheator, etc., that he inquire and find 
out the true yearly value of any land, etc., by the oath of 
twelve men, and to certify the extent into the chancery. 
Terra frusca, or frisca /tehr� frisk�/. Fresh land, not 
lately plowed. 
Terrage /tehr�j/. In old English law, a kind of tax or 
charge on land; a boon or duty of plowing, reaping, etc. 
1472 
Terrages /tehr�j�z/. An exemption from all uncertain 
services. 
Terra hydata /tehr� h�deyt�/. Land subject to the 
payment of hydage. 
Terra lucrabilis /tehr� l(y)uwkreyb�bs/. Land gained 
from the sea or inclosed out of a waste. 
Terra manens vacua occupanti conceditur /tehr� 
mrenenz vrekyuw� oky�prentay k�nsiyd�t�r/. Land lying 
unoccupied is given to the first occupant. 
Terra normanorum /tehr� norm�n6r�m/. Land held by 
a Norman. 
Terra nova /tehr� n6wv�/. Land newly converted from 
wood ground or arable. 
Terra putura /tehr� pyuwtyur�/. Land in forests, held 
by the tenure of furnishing food to the keepers therein. 
Terrarius /t�reriy�s/. In old English law, a landholder. 
Terra sabulosa /tehr� sreby�16ws�/. Gravelly or sandy 
ground. 
Terra salica /tehr� srel�k�/. In Salie law, the land of 
the house; the land within that inclosure which be
longed to a German house. No portion of the inheri
tance of Salic land passes to a woman, but this the male 
sex acquires; that is, the sons succeed in that inheri
tance. 
Terra testamentalis /tehr� test�menteyl�s/. Gavel-kind 
land, being disposable by will. 
Terra transit cum onere /tehr� trrenz�t k�m 6wn�riy/. 
Land passes with the incumbrances. 
Terra vestita /tehr� v�stayt�/. Land sown with corn. 
Terra wainabilis /tehr� weyneyb�l�s/. Tillable land. 
Terra warrenata /tehr� wohr�neyt�/. Land that has 
the liberty of free-warren. 
Terre-tenant /terten�nt/t�rO /. He who is literally in the 
occupation or possession of the land, as distinguished 
from the owner out of possession. But, in a more 
technical sense, the person who is seised of the land, 
though not in actual occupancy of it, and locally, in 
Pennsylvania, one who purchases and takes land subject 
to the existing lien of a mortgage or judgment against a 
former owner. 
Terrier. In English law, a landroll or survey of lands, 
containing the quantity of acres, tenants' names, and 
such like; and in the exchequer there is a terrier of all 
the glebe lands in England, made about 1338. In gener
al, an ecclesiastical terrier contains a detail of the 
temporal possessions of the church in every parish. 
Terris bonis et catallis rehabendis post purgationem 
/tehr�s b6wn�s et k�trel�s riy(h)�bend�s powst 
p�rgeyshiy6wn�m/ . A writ for a clerk to recover his 
lands, goods, and chattels, formerly seized, after he had 
cleared himself of the felony of which he was accused, 
and delivered to his ordinary to be purged. 
Terris et cataIIis tentis ultra debitum levatum /tehr�s 
et k�trel�s tent�s �ltr� deb�t�m l�veyt�m/. A judicial

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writ for the restoring of lands or goods to a debtor who 
is distrained above the amount of the debt. 
Terris Iiberandis Itehr;s lib;rrend;s/. A writ that lay 
for a man convicted by attaint, to bring the record and 
process before the king, and take a fine for his imprison
ment, and then to deliver to him his lands and tene
ments again, and release him of the strip and waste. 
Also it was a writ for the delivery of lands to the heir, 
after homage and relief performed, or upon security 
taken that he should perform them. 
Territorial. Having to do with a particular area; for 
example, territorial jurisdiction is the power of a court 
to take cases from within a particular geographical area. 
Territorial courts. U.S. courts in each territory, such 
as the Virgin Islands. They serve as both Federal and 
state courts. Created under U.S.Const., Art. IV, Sec. 3, 
c1. 2. 
Territorial jurisdiction. Territory over which a govern
ment or a subdivision thereof, or court, has jurisdiction. 
State v. Cox, 106 Utah 253, 147 P.2d 858, 861. Jurisdic
tion considered as limited to cases arising or persons 
residing within a defined territory, as, a county, a judi
cial district, etc. The authority of any court is limited 
by the boundaries thus fixed. See also Extraterritorial 
jurisdiction; Jurisdiction. 
Territorial property. The land and water over which 
the state has jurisdiction and control whether the legal 
title be in the state itself or in private individuals. 
Lakes and waters wholly within the state are its proper
ty and also the marginal sea within the three-mile limit, 
but bays and gulfs are not always recognized as state 
property. 
Territorial; territoriality. These terms are used to 
signify connection with, or limitation with reference to, 
a particular country or territory. Thus, "territorial 
law" is the correct expression for the law of a particular 
country or state, although "municipal law" is more 
common. 
Territorial waters. Term refers to all inland waters, all 
waters between line of mean high tide and line of 
ordinary low water, and all waters seaward to a line' 
three geographical miles distant from the coast line. C. 
A. B. v. Island Airlines, Inc., D.C.Hawaii, 235 F.Supp. 
990, 1002. That part of the sea adjacent to the coast of 
a given country which is by international law deemed to 
be within the sovereignty of that country, so that its 
courts have jurisdiction over offenses committed on 
those waters, even by a person on board a foreign ship. 
See Three-mile limit. 
Territory. A part of a country separated from the rest, 
and subject to a particular jurisdiction. Geographical 
area under the jurisdiction of another country or sover
eign power. 
A portion of the United States, not within the limits of 
any state, which has not yet been admitted as a state of 
the Union, but is organized, with a separate legislature, 
and with executive and judicial officers appointed by the 
president. See Trust territory. 
Black's Law Dictionary 6th Ed.-32 
/ 
( 
I 
TEST 
An assigned geographical area of responsibility; e.g. 
salesman's territory. 
Territory of a judge . The territorial jurisdiction of a 
judge; the bounds, or district, within which he may 
lawfully exercise his judicial authority. See e.g. 28 
U.S.C.A. § 81 et seq. (territorial composition of federal 
district courts). See also Jurisdiction. 
Terror. Alarm; fright; dread; the state of mind in
duced by the apprehension of hurt from some hostile or 
threatening event or manifestation; fear caused by the 
appearance of danger. In an indictment for riot at 
common law, it must have been charged that the acts 
done were «t o the terror of the people." 
An element of offense of aggravated kidnapping, is 
any act which is done to fill with intense fear or to 
coerce by threat or force. Rogers v. State, Tex.Cr.App., 
687 S.W.2d 337, 341. 
Terrorism. "Act of terrorism" means an activity that 
involves a violent act or an act dangerous to human life 
that is a violation of the criminal laws of the United 
States or of any State, or that would be a criminal 
violation if committed within the jurisdiction of the 
United States or of any State; and appears to be intend
ed-(i) to intimidate or coerce a civilian population; (ii) 
to influence the policy of a government by intimidation 
or coercion, or (iii) to affect the conduct of a government 
by assassination or kidnapping. 18 U.S.C.A. § 3077. 
Terroristic threats. A person is guilty of a felony if he 
threatens to commit any crime of violence with purpose 
to terrorize another or to cause evacuation of a building, 
place of assembly, or facility of public transportation, or 
otherwise to cause serious public inconvenience, or in 
reckless disregard of the risk of causing such terror or 
inconvenience. 18 U.S.C.A. § 3077; Model Penal Code, 
§ 211 .3. See also Terrorism. 
Terry-stop. See Stop and frisk. 
Tertia denunciatio It�rsh(iy); d:m:)nsiyeysh(iy)ow/. 
Lat. In old English law, third publication or proclama
tion of intended marriage. 
Tertius interveniens It�rsh(iy);s int;rviyn(i)yenz/. Lat. 
In the civil law, a third person intervening; a third 
person who comes in between the parties to a suit; one 
who interpleads. 
Test. To bring one to a trial and examination, or to 
ascertain the truth or the quality or fitness of a thing. 
Something by which to ascertain the truth respecting 
another thing; a criterion, gauge, standard, or norm. 
In public law, an inquiry or examination addressed to 
a person appointed or elected to a public office, to 
ascertain his qualifications therefor, but particularly a 
scrutiny of his political, religious, or social views, or his 
attitude of past and present loyalty or disloyalty to the 
government under which he is to act. 
See also Competitive civil service examination; Examina
tion. 
Discovery. Requests for permISSIon to test tangible 
things in civil actions are governed by Fed.R.Civil P. 34. 
Requests for reports or results of examinations or tests 
are governed by Fed.R.Civil P. 35, and Fed.R.Crim.P. 16.

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TESTABLE 
Testable. A person is said to be testable when he or she 
has capacity to make a will. In general, person of 
twenty-one years of age and of sane mind is testable. 
Test act. The statute 25 Car. II, c. 2, which directed all 
civil and military officers to take the oaths of allegiance 
and supremacy, and make the declaration against tran
substantiation, within six months after their admission, 
and also within the same time receive the sacrament 
according to the usage of the Church of England, under 
penalty of £500 and disability to hold the office. This 
was abolished by St. 9 Geo. IV, c. 17, so far as concerns 
receiving the sacrament, and a new form of declaration 
was substituted. 
Test action or case. An action selected out of a consid
erable number of suits, concurrently depending in the 
same court, brought by several plaintiffs against the 
same defendant, or by one plaintiff against different 
defendants, all similar in their circumstances, and em
bracing th� same questions, and to be supported by the 
same evidence, the selected action to go first to trial 
(under an order of court equivalent to consolidation), 
and its decision to serve as a test of the right of recovery 
in the others, all parties agreeing to be bound by the 
result of the test action. A lawsuit brought to establish 
an important legal principle or right. 
Testacy Itest;}siy/. The state or condition of leaving a 
will at one's death. Opposed to "intestacy." 
Testa de nevil Itest;} d;} nev;}l/. An ancient and authen
tic record in two volumes, in the custody of the king's 
remembrancer in the exchequer, said to be compiled by 
John de Nevil, a justice itinerant, in the eighteenth and 
twenty-fourth years of Henry III. These volumes were 
printed in 1807, under the authority of the commission
ers of the public records, and contain an account of fees 
held either immediately of the king or of others who 
hel� of the king in capite; fees holden in frankalmoigne; 
serJeanties holden of the king; widows and heiresses of 
tenants in capite, whose marriages were in the gift of 
the king; churches in the gift of the king; escheats, and 
sums paid for scutages and aids, especially within the 
county of Hereford. 
Testament. Under the early English law, a term that 
�eferre,� to the disposition of personal property by will; 
�.e. by last will and testament." The words "and testa
ment" are no longer necessary since a will now relates 
to both real and personal property. 
Military testament. In English law, a nuncupative will, 
that is, one made by word of mouth, by which a soldier 
may dispose of his goods, pay, and other personal chat
tels, without the forms and solemnities which the law 
requires in other cases. See also Nu ncupative will; Sol
dier's will. 
Mutual testaments. Wills made by two persons who 
leave their effects reciprocally to the survivor. 
Mystic testament. A form of testament made under 
Spanish law which prevailed in Louisiana and Califor
nia. In the law of Louisiana, a sealed testament. The 
mystic or secret testament, otherwise called the "closed 
1474 
testament," is made in the following manner: The testa
tor must sign his dispositions, whether he has written 
them himself or has caused them to be written by 
another person. The paper containing those disposi
tions, or the paper serving as their envelope, must be 
closed and sealed. The testator shall present it thus 
closed and sealed to the notary and to seven witnesses, 
or he shall cause it to be closed and sealed in their 
presence. Then he shall declare to the notary, in pres
ence of the witnesses, that that paper contains his 
testament written by himself, or by another by his 
direction, and signed by him, the testator. The notary 
shall then draw up the act of superscription, which shall 
be written on that paper, or on the sheet that serves as 
its envelope, and that act shall be signed by the testator, 
and by the notary and the witnesses. Civ.Code La. art. 
1584. 
Testamenta cum duo inter se pugnantia reperiuntur, 
ultimum ratum est; sic est, cum duo inter se pug
nantia reperiuntur in eodem testamento Itest;}ment;} 
kam d(y)uwow int;}r siy pagnrensh(iy);} r;}pariy:}nt;}r, 
:}It;}m;} reyt;}m est; sik est, kam d(y)uwow int;}r siy 
pagnrensh(iy);} r;}pariy:}nt;}r in iyowd;}m test;}mentow/. 
When two conflicting wills are found, the last prevails; 
so it is when two conflicting clauses occur in the same 
will. 
Testamenta latissimam interpretationem habere de
bent Itest;}ment;} lretis;}m;}m intarpr;}teyshiyown;}m 
h;}biriy deb;}ntl. Wills ought to have the broadest inter
pretation. 
Testamentary. Pertaining to a will or testament; as 
testamentary causes. Derived from, founded on, or ap
pointed by a testament or will; as a testamentary guard
ian, letters testamentary, etc. 
A paper, instrument, document, gift, appointment, 
etc., is said to be "testamentary" when it is written or 
made so as not to take effect until after the death of the 
person making it, and to be revocable and retain the 
property under his control during his life, although he 
may have believed that it would operate as an instru
ment of a different character. See In re Murphy's 
Estate, 193 Wash. 400, 75 P.2d 916, 920. 
Letters testamentary. The formal instrument of authori
ty and appointment given to an executor by the proper 
court, upon the admission of the will to probate, empow
ering him to enter upon the discharge of his office as 
executor. 
Testamentary capacity. That measure of mental ability 
which is recognized in law as sufficient for the making 
of a will. A testator to have such capacity must have 
sufficient mind and memory to intelligently understand 
the nature of business in which he is engaged, to com
prehend generally the nature and extent of property 
which constitutes his estate, and which he intends to 
dispose of, and to recollect the objects of his bounty. In 
re Lacy's Estate, Okl., 431 P.2d 366, 368. See also 
Capacity. 
Testamentary character. Of the nature or pertaining to 
a disposition of property at death.

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Testamentary class. Body of persons, uncertain in num
ber at time of gift, ascertainable in future, and each 
taking in equal or in other d�finite proportions. A 
tttestamentary class gift" is a gift to a group whose 
number at the time of the gift is uncertain but which 
will be ascertained at some future time when all who 
constitute the class will take an equal or other definite 
portion, the amount of the share of each being depend
ent upon the number that ultimately constitutes the 
class. Lux v. Lux, 109 R.I. 592, 288 A.2d 701, 705. 
Testamentary disposition. The passing of property to 
another upon the death of the owner. A disposition of 
property by way of gift, will or deed which is not to take 
effect unless the grantor dies or until that event. 
Testamentary guardian. A guardian appointed by the 
last will of parent for the person and real and personal 
estate of child until the latter arrives of full age. In re 
De Saulles, 101 Misc. 447, 167 N.Y.S. 445, 453. 
Testamentary intent. Requirement for a valid will that 
the testator must intend that the instrument presently 
operate as his or her last will and testament. 
Testamentary paper or instrument. An instrument in 
the nature of a will; an unprobated will; a paper 
writing which is of the character of a will, though not 
formally such, and, if allowed as a testament, will have 
the effect of a will upon the devolution and distribution 
of property. 
Testamentary power of appointment. A power of ap
pointment that can be exercised only through the will 
(.e., upon the death) of the holder. Restatement, Proper
ty, § 321(1). See also Power of appointment. 
Testamentary trust. A trust created by a will which 
takes effect only upon the testator's death. The trust 
must satisfy requirements of both a valid trust and a 
valid will. See also Trust. 
Testamentary trustee. See Trustee. 
Testamenti factio Itest::lmEmtay freksh(iy)ow/. Lat. In 
the civil law, the ceremony of making a testament, 
either as testator, heir, or witness. 
Testamentum Itest::lmEmt::lm/. Lat. In the civil law, a 
testament; a will, or last will. 
In old English law, a testament or will; a disposition 
of property made in contemplation of death. 
A general name for any instrument of conveyance, 
including deeds and charters, and so called either be
cause it furnished written testimony of the conveyance, 
or because it was authenticated by witnesses (testes). 
Testamentum est voluntatis nostrre justa sententia, 
de eo quod quis post mortem suam fieri velit 
Itest::lment::lm est vol::lnteyt::ls nostriy j�st::l s::lntensh(iY)::l, 
diy iyow kwod kwis powst mort::lm s(y)uw::lm faY::lray 
viyl::lt/. A testament is the just expression of our will 
concerning that which any one wishes done after his 
death [or, as Blackstone translates, "the legal declara
tion of a man's intentions which he wills to be per
formed after his death"]. 
TESTE MEIPSO 
Testamentum, i.e., testatio mentis, facta nullo 
prresente metu periculi, sed cogitatione mortalitatis 
ltest::lment;}m, id est, testeysh(iy)ow ment;}s, frekt;} n;low 
pr;}zentiy met(y)uw p;}riky;}lay, sed koj;}tey
shiyowniy mol"trelgteyt;}sl. A testament, i.e., the wit
nessing of one's intention, made under no present fear of 
danger, but in expectancy of death. 
Testamentum inofficiosum Itest;}ment;}m in;}fish
iyows;}m/. Lat. In the civil law, an inofficious testa
ment (q. v.). 
Testamentum omne morte consummatur 
Itest::lment;}m omniy mortiy kons;}meyt::lr/. Every will 
is perfected by death. A will speaks from the time of 
death only. 
Testari Itesteray/. Lat. In the civil law, to testify; to 
attest; to declare, publish, or make known a thing 
before witnesses. To make a will. 
Testate Itesteyt/. One who has made a will; one who 
dies leaving a will. See Testator(-trix); Compare Intes
tate. 
Testate succession. Acquisition of property or rights 
through a will. 
Testation Itesteysh::ln/. Witness; evidence. 
Testator(-trix) Itesteyt;}r/. One who makes or has made 
a testament or will; one who dies leaving a will. This 
term is borrowed from the civil law. 
Testatoris ultima voluntas est perimplenda secun
dum veram intentionem suam Itest;}tor;}s �lt;}m;} 
v;}l�ntres est p�rimplend;} s::lk�nd;}m vir;}m 
intenshiyown;}m s(y)uw;}m/. The last will of a testator 
is to be thoroughly fulfilled according to his real inten
tion. 
Testatrix Itesteytr::lksl. A woman who makes a will; a 
woman who dies leaving a will; a female testator. 
Testatum Itesteyt::lm/. The name of a writ which is 
issued by the court of one county to the sheriff of 
another county in the same state, when defendant can
not be found in the county where the court is located: 
for example, after a judgment has been obtained, and a 
ca. sa. has been issued, which has been returned non est 
inventus, a testatum ca. sa. may be issued to the sheriff 
of the county where the defendant is. 
In conveyancing, that part of a deed which commences 
with the words, "This indenture witnesseth." 
Testatum writ Itesteyt;}m rit!. In practice, a writ con
taining a testatum clause; such as a testatum capias, a 
testatum fi. fa., and a testatum ca. sa. See Testatum. 
Testatus Itesteyt::lsl. Lat. In the civil law, testate; one 
who has made a will. 
Test case. See Test action or case. 
Teste. To bear witness formally. See Teste of a writ. 
Tested Itestiyd/. To be tested is to bear the teste (q.v.). 
Teste meipso Itestiy miyipsow I. Lat. In old English 
law and practice, a solemn formula of attestation by the 
sovereign, used at the conclusion of charters, and other

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TESTE MEIPSO 
public instruments, and also of original writs out of 
chancery. 
Teste of a writ Itestiy ;}v ;} rit/. In practice, the con
cluding clause, commencing with the word "Witness," 
etc. A writ which bears the teste is sometimes said to 
be tested. 
In English law, "teste" is a word commonly used in 
the last part of every writ, wherein the date is contained 
beginning with the words, "Teste meipso," meaning the 
sovereign, if the writ be an original writ, or be issued in 
the name of the sovereign; but, if the writ be a judicial 
writ, then the word "Teste" is followed by the name of 
the chief judge of the court in which the action is 
brought, or, in case of a vacancy of such office, in the 
name of the senior puisne judge. 
Testes Itestiyz/. Lat. Witnesses. 
Testes ponderantur, non numerantur Itestiyz pon
d;}rrent;}r, non n(y)uwm;}rrent;}r/. Witnesses are 
weighed, not numbered. That is, in case of a conflict of 
evidence, the truth is to be sought by weighing the 
credibility of the respective witnesses, not by the mere 
numerical preponderance on one side or the other. 
Testes qui postulat debet dare eis sumptus compe
tentes Itestiyz kway posty;}l;}t deb;}t deriy iy;}s s.Jm(p)t;}s 
komp;}t€mtiyz/. Whosoever demands witnesses must 
find them in competent provision. 
Testes, trial per Itray(;})l p�r testiyz/. A trial had 
before a judge without the intervention of a jury, in 
which the judge is left to form in his own breast his 
sentence upon the credit of the witnesses examined; but 
this mode of trial, although it was common in the civil 
law, was seldom resorted to in the practice of the com
mon law, but it is now becoming common when each 
party waives his right to a trial by jury. 
Testibus deponentibus in pari numero, dignioribus 
est credendum Itest;}b;}s diyp;}nent;}b;}s in peray 
n(y)uwm;}row, dign(i)yor;}b;}s est kr;}dend;}m/. Where 
the witnesses who testify are in equal number [on both 
sides], the more worthy are to be believed. 
Testify. To bear witness; to give evidence as a witness; 
to make a solemn declaration, under oath or affirma
tion, in a judicial inquiry, for the purpose of establishing 
or proving some fact. 
Testimonial. In the nature of testimony. Evidence is 
said to be testimonial when elicited from a witness in 
contrast to documentary evidence or real evidence. 
Besides its ordinary meaning of a written recommen
dation to character, "testimonial" has a special mean
ing, under St. 39 Eliz., c. 17, § 3, passed in 1597, under 
which it signified a certificate under the hand of a 
justice of the peace, testifying the place and time when 
and where a soldier or mariner landed, and the place of 
his dwelling or birth, unto which he was to pass, and a 
convenient time limited for his passage. Every idle and 
wandering soldier or mariner not having such a testimo
nial, or willfully exceeding for above fourteen days the 
time limited thereby, or forging or counterfeiting such 
testimonial, was to suffer death as a felon, without 
1476 
benefit of clergy. This English act was repealed, in 
1812, by St. 52 Geo. III, c. 3l. 
Testimonial evidence. Evidence elicited from a witness 
in contrast to documentary or real evidence. See also 
Evidence; Testimony. 
Testimonial proof. In the civil law, proof by the evi
dence of witnesses, i.e., parol evidence, as distinguished 
from proof by written instruments, which is called "lit
eral" proof. See Evidence. 
Testimonia ponderanda sunt, non numeranda 
Itest;}mown(i)y;} pond;}rrend;} s�nt, non n(y)uw
m;}rrend;}I . Evidence is to be weighed, not enumerated. 
Testimonio Itest;}mown(i)yow I. In Spanish law, an au
thentic copy of a deed or other instrument, made by a 
notary and given to an interested party as evidence of 
his title, the original remaining in the public archives. 
Testimonium clause Itest;}mown(i)y;}m kloz/. In con
veyancing, that clause of a deed or instrument with 
which it concludes; "In witness whereof, the parties to 
these presents have hereunto set their hands and seals." 
A clause in the instrument reciting the date on which 
the instrument was executed and by whom. 
Testimony. Evidence given by a competent witness un
der oath or affirmation; as distinguished from evidence 
derived from writings, and other sources. Testimony is 
particular kind of evidence that comes to tribunal 
through live witnesses speaking under oath or affirma
tion in presence of tribunal, judicial or quasi-judiciaL 
State v. Ricci, 107 R.I. 582, 268 A.2d 692, 697. 
In common parlance, "testimony" and "evidence" are 
synonymous. Testimony properly means only such evi
dence as is delivered by a witness on the trial of a cause, 
either orally or in the form of affidavits or depositions. 
See also Character evidence; Evidence; Failure to testi
fy; Opinion evidence or testimony; Perpetuating testimo
ny. 
Expert testimony. See Evidence (Expert evidence); Ex
pert witness. 
Negative testimony. Testimony not bearing directly 
upon the immediate fact or occurrence under considera
tion, but evidencing facts from which it may be inferred 
that the act or fact in question could not possibly have 
happened. 
Positive testimony. Direct testimony that a thing did or 
did not happen. 
Testis Itest;}s/. Lat. A witness; one who gives evidence 
in court, or who witnesses a document. 
Testis de visu prreponderat allis Itest;}s diy vayz(y)uw 
pr;}pond;}r;}t eyliy;}s/. An eye-witness is preferred to 
others. 
Testis lupanaris sufficit ad factum in lupanari ltest;}s 
l(y)uwp;}ner;}s s.Jf;}s;}t red frekt;}m in l(y)uwp;}neray/. A 
lewd person is a sufficient witness to an act committed 
in a brothel. 
Testis nemo in sua causa esse potest ltest;}s niymow in 
s(y)uwow koz;} esiy pOwbst/. No one can be a witness in 
his own cause .

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Testis oculatus unus plus valet quam auriti decem 
Itest�s oky�leyt�s yuwn�s pl�s vrel�t kwrem ohraytay 
des�m /. One eye-witness is worth more than ten ear
witnesses. 
Testmoigne. An old law French term, denoting evi
dence or testimony of a witness. 
Testmoignes ne poent testifier Ie negative, mes l'af
firmative. Witnesses cannot testify to a negative; they 
must testify to an affirmative. 
Test oath. An oath required to be taken as a criterion of 
the fitness of the person to fill a public or political office; 
but particularly an oath of fidelity and allegiance (past 
or present) to the established government. See also 
Loyalty oath. 
Test-paper. In practice, a paper or instrument shown to 
a jury as evidence. A term used in the Pennsylvania 
courts. 
Tests. See Test. 
Textbook. A legal text or treatise which presents prin
ciples on any branch of the law. See also Hornbook. 
Textus roffensis Itekst�s rofens�sl. In old English law, 
the Rochester text. An ancient manuscript containing 
many of the Saxon laws, and the rights, customs, ten
ures, etc., of the church of Rochester, drawn up by 
Ernulph, bishop of that see from A.D. 111 4 to 11 24. 
Thainland 1geynlrend/. In old English law, the land 
which was granted by the Saxon kings to their thains or 
thanes was so called. 
Thalweg ItaIveyk/. Old German spelling of Talweg, 
which title see. 
Under the doctrine of "thalweg," the water boundary 
between states is defined as the middle of the deepest or 
most navigable channel, as distinguished from the geo
graphic center or a line midway between the banks. 
U.S. v. Louisiana, 470 U.S. 93, 105 S.Ct. 1074, 1083, 84 
L.Ed.2d 73. The middle of main navigable channel, the 
track taken by boats in their course downstream, which 
is that of the strongest current. Anderson-Tully Co. v. 
Walls, D.C.Miss., 266 F.Supp. 804, 812. 
Thanage of the king 1geyn�j �v (5� kiIJ/. A certain part 
of the king's land or property, of which the ruler or 
governor was called "thane." 
Thane I geyn/. An Anglo-Saxon nobleman; an old title 
of honor, perhaps equivalent to "baron." There were 
two orders of thanes,-the king's thanes and the ordi
nary thanes. Soon after the Conquest this name was 
disused. 
Thanelands 1geynlrendz/. Such lands as were granted 
by charter of the Saxon kings to their thanes with all 
immunities, except from the trinoda necessitas. 
Thaneship I geynshipl . The office and dignity of a 
thane; the seigniory of a thane. 
That. A relative pronoun equivalent to who or which, 
either singular or plural. 
Thavies inn. An inn of chancery. See In ns of chanc ery. 
THEFT·BOTE 
The. An article which particularizes the subject spoken 
of. In construing statute, definite article "the" particu
larizes the sub ject which it precedes and is word of 
limitation as opposed to indefinite or generalizing force 
"a" or "an". Brooks v. Zabka, 168 Colo. 265, 450 P.2d 
653, 655. 
Theft. A popular name for larceny. The act of stealing. 
The taking of property without the owner's consent. 
People v. Sims, 29 Ill.App.3d 815, 331 N.E.2d 178, 179. 
The fraudulent taking of personal property belonging to 
another, from his possession, or from the possession of 
some person holding the same for him, without his 
consent, with intent to deprive the owner of the value of 
the same, and to appropriate it to the use or benefit of 
the person taking. 
It is also said that theft is a wider term than larceny 
and that it includes swindling and embezzlement and 
that generally, one who obtains possession of property 
by lawful means and thereafter appropriates the proper
ty to the taker's own use is guilty of a "theft". Kidwell 
v. Paul Revere Fire Ins. Co., 294 Ky. 833, 172 S.W.2d 
639, 640; People v. Pillsbury, 59 Cal.App.2d 107, 138 
P.2d 320, 322. 
Theft is any of the following acts done with intent to 
deprive the owner permanently of the possession, use or 
benefit of his property: (a) Obtaining or exerting unau
thorized control over property; or (b) Obtaining by de
ception control over property; or (c) Obtaining by threat 
control over property; or (d) Obtaining control over 
stolen property knowing the property to have been sto
len by another. 
See also Auto theft; Embezzlement; Extortion; Intimi
dation; Larceny; Robbery; Steal; Shoplifting. 
Theft by deception. Under Model Penal Code § 223.3, a 
person is guilty of theft by deception if he purposely 
obtains property of another by deception. 
Theft by false pretext. Obtaining property by means of 
false pretext with intent to deprive owner of value of 
property without his consent and to appropriate it to 
own use, followed by such appropriation. Hoovel v. 
State, 125 Tex.Cr.R. 545, 69 S.W.2d 104, 106. 
Theft of services. Obtaining services from another by 
deception, threat, coercion, stealth, mechanical tamper
ing or use of false token or device. 
Theft-bote I 9eftbowtl . The offense committed by a par
ty who, having been robbed and knowing the felon, 
takes back his goods again, or receives other amends, 
upon an agreement not to prosecute. Farmers' Nat. 
Bank of Somerset v. Tarter, 256 Ky. 70, 75 S.W.2d 758, 
760. 
Theft-bote est emenda furti capta, sine considera
tione curia! domini regis 19eftbowt est ;}mend� f�rtay 
krept;), sayniy k;}nsid�reyshiy6wniy kyuhriyiy d6m�nay 
riyj;}s/. Theft-bote is the paying money to have goods 
stolen returned, without having any respect for the 
court of the king.

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THEGN 
Thegn I(}eyn/. An Anglo-Saxon term meaning a retain
er. Afterwards it came to designate the territorial no
bility. At a later period these were king's thegns, who 
were persons of great importance, and inferior thegns. 
Military service appears to have run through it all. 
After the Conquest, they were merged into the class of 
knights. 
Thegnage tenure I(}eyn;}j teny;}r/. A kind of tenure in 
Northumbria in the 13th century and beyond, of which 
little is known. 
Thelonio irrationabili habendo I (};}lown(i)yow 
ihrresh;}nreb;}lay h;}bendow I. A writ that formerly lay 
for him that had any part of the king's demesne in 
fee-farm, to recover reasonable toll of the king's tenants 
there, if his demesne had been accustomed to be tolled. 
Thelonium I (};}lown(i)y;}ml . An abolished writ for citi
zens or burgesses to assert their right to exemption from 
toll. 
Thelonmannus I (}el;}nmren;}s/. The toll-man or officer 
who receives toll. 
Thelusson Act. In English law, the statute 39 & 40 Geo. 
III, c. 98, which restricted accumulations to a term of 
twenty-one years from the testator's death. It was 
passed in consequence of litigation over the will of one 
Thelusson. 
Theme. In Saxon law, the power of having jurisdiction 
over naifs or villeins, with their suits or offspring, lands, 
goods, and chattels. 
Themmagium I(};}meyj(iy);}m/. A duty or acknowledg
ment paid by inferior tenants in respect of theme or 
team. 
Then. This word, as an adverb, means "at that time," 
referring to a time specified, either past or future. It 
has no power in itself to fix a time. It simply refers to a 
time already fixed. It may also denote a contingency, 
and be equivalent to "in that event." 
Then and there. At the time and place last previously 
mentioned or charged. Context, however, may give the 
phrase a more remote antecedent than the time and 
place last previously mentioned or charged. 
Thence. From that place, or that time; on that account; 
therefore. In surveying, and in descriptions of land by 
courses and distances, this word, preceding each course 
given, imports that the following course is continuous 
with the one before it. 
Thence down the river. This phrase as used in field 
notes of a surveyor of a patent, is construed to mean 
with the meanders of the river, unless there is positive 
evidence that the meander line as written was where 
the surveyor in fact ran it; for such lines are to show 
the general course of the stream and to be used in 
estimating acreage, and not necessarily boundary lines. 
Theocracy. Government of a state by the immediate 
direction of God (or by the assumed direction of a 
supposititious divinity), or the state thus governed. 
1478 
Theoden. In Saxon law, a husbandman or inferior ten
ant; an under-thane. 
Theodosian Code I lJiy;}dowsh(iy);}n kowd/. See Codex 
Theodosianus. 
Theof. In Saxon law, offenders who joined in a body of 
seven to commit depredations. 
Theophilus' Institutes IfJiy6f;}bs;}z inst;}t(y)uwts/. See 
Institutes. 
Theory of case. Facts on which the right of action is 
claimed to exist. The basis of liability or grounds of 
defense. Higgins v. Fuller, 48 N.M. 218, 148 P.2d 575, 
579. See Cause of action. 
Theory of law. The legal premise or set of principles on 
which a case rests. 
Theory of pleading doctrine. The pre-code principle 
that one must prove his case as pleaded. Otherwise, he 
fails though he has set forth facts sufficient to sustain 
his case on a theory different from his pleadings. The 
various codes and rules of civil procedure have abolished 
this strict pleading and proof requirement; see e.g. Fed. 
R.Civil P. 15 which permits amendment of pleadings to 
conform to evidence. 
Theowes, theowmen, or thews I(}(y)uwzl(}(y)uwm;}n/. 
In feudal law, slaves, captives, or bondmen. 
There. In or at that place. 
Thereabout. About that place. 
Thereafter. After the time last mentioned; after that; 
after that time; afterward; subsequently; thenceforth. 
Dauwe v. State, 147 Tex.Cr.R. 384, 180 S.W.2d 925, 927. 
Thereby. By that means; in consequence of that. 
Therefor. For that thing: for it, or them. 
Therein. In that place. 
Thereupon. Without delay or lapse of time. Immedi
ately where the terms thereupon and thereby are distin
guished. Following on; in consequence of. Yuma Coun
ty Water Users' Ass'n v. Schlecht, 262 U.S. 138, 43 S.Ct. 
498, 500, 67 L.Ed. 909. 
Thesaurus absconditus I (};}sohr;}s ;}bskond;}t;}s/. In old 
English law, treasure hidden or buried. 
Thesaurus competit domino regi, et non domino Ii· 
beratis, nisi sit per verba specialia I (};}sohr;}s 
komp;}t;}t dom;}now riyjay, et non dom;}now Hb;}rteyt;}s, 
naysay sit p�r v;)rb;) speshiyeyl(i)y;}I . A treasure be
longs to the king, and not to the lord of a liberty, unless 
it be through special words. 
Thesaurus inventus I (};}sohr;}s ;}nvent;}s/. In old Eng
lish law, treasure found; treasure-trove. 
Thesaurus inventus est vetus dispositio pecunire, etc., 
cujus non extat modo memoria, adeo ut jam domi· 
num non habeat I (};}sohr;}s invent;}s est viyt;}s 
disp;}zish(iy)ow p;}kyuwniyiy, etset;}ror;}m, kyuwj;}s non 
ekst;}t mowdow m;)moriy;}, rediyow �t jrem dom:m;}m non 
heybiy;}t/. Treasure-trove is an ancient hiding of mon-

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1479 
ey, etc., of which no recollection exists, so that it now 
has no owner. 
Thesaurus non competit regi, nisi quando nemo scit 
qui abscondit thesaurum /(J�sohr�s non komp�t�t 
riyjay, naysay kwondow niymow sit kway �bskond�t 
lJ�sohr�m/ . Treasure does not belong to the king, unless 
no one knows who hid it. 
Thesaurus regis est vinculum pacis et bellorum ner
vus /(J�sohr�s riyj�s est viIJk(y)�bm peys�s et belor�m 
narv�s/. The king's treasure is the bond of peace and 
the sinews of war. 
Thesaurus, thesaurium / (J�sohr�s/ (J�sohriy�m /. The 
treasury; a treasure. 
Thesmothete /(Jezm�(Jiyt/. A law-maker; a law-giver. 
Thethinga /fJiyoiIJ�/. A tithing. 
Thia /tiy�/. Lat. In the civil and old European law, an 
aunt. 
Thief. One who steals; one who commits theft or larce
ny. See also Common thief. 
Thin capitalization. When debt owed by a corporation 
to its shareholders is large in relationship to its capital 
structure (i.e., stock and shareholder equity), the I.R.S. 
may contend that the corporation is thinly capitalized. 
In effect, this means that some or all of the debt will be 
reclassified as equity. The immediate result is to disal
low any interest deduction to the corporation on the 
reclassified debt. To the extent of the corporation's 
earnings and profits, interest payments and loan repay
ments are treated as dividends to the shareholders. 
I.R.C. § 385. 
Thin corporation. A corporation with an excessive 
amount of debt in its capitalization. A thin corporation 
is primarily a tax concept. See Thin capitalization. 
Things. The objects of dominion or property as contra
distinguished from "persons." Gayer v. Whelan, 59 
CaLApp.2d 255, 138 P.2d 763, 768. The object of a right; 
i.e., whatever is treated by the law as the object over 
which one person exercises a right, and with reference 
to which another person lies under a duty. 
Such permanent objects, not being persons, as are 
sensible, or perceptible through the senses. Things are 
distributed into three kinds: (1) Things real or immov
able, comprehending lands, tenements, and heredit
aments; (2) things personal or movable, comprehending 
goods and chattels; and (3) things mixed, partaking of 
the characteristics of the two former, as a title-deed, a 
term for years. The civil law divided things into corpo
real (tangi possunt) and incorporeal (tangi non possunt). 
Things in action. A right to recover money or other 
personal property by a judicial proceeding. See Chose in 
action. 
Things of value. To be the subject of gaming may refer 
to any thing affording the necessary lure to indulge the 
gambling instinct. Heartley v. State, 178 Tenn. 254, 157 
S.W.2d I, 3. Within meaning of federal larceny statute 
(18 U.S.C.A. § 641) a "thing of value" involves both 
THIRD PARTY ACTION 
intangible and tangible property. U.S. v. Jeter, C.A.Ky., 
775 F.2d 670, 680. 
Things personal. Goods, money, and all other mova
bles, which may attend the owner's person wherever he 
may go. Things personal consist of goods, money, and 
all other movables, and of such rights and profits as 
relate to movables. Also all vegetable productions, as 
the fruit or other parts of a plant when severed from the 
body of it, or the whole plant itself, when severed from 
the ground. Western Union Telegraph Co. v. Bush, 191 
Ark. 1085, 89 S.W.2d 723, 725. See also Property (Per
sonal property). 
Things real. Such things as are permanent, fixed, and 
immovable, which cannot be carried out of their place; 
as lands and tenements and hereditaments. 2 BLComm. 
16. Western Union Telegraph v. Bush, 191 Ark. 1085, 
89 S.W.2d 723, 725. See also Property (Real property). 
Thingus. In Saxon law, a thane or nobleman; knight or 
freeman. 
Think. To believe, to consider, to conclude, to esteem; 
to recollect or call to mind. 
Third. Following next after the second; also, with refer
ence to any legal instrument or transaction or judicial 
proceeding, any outsider or person not a party to the 
affair nor immediately concerned in it. 
Thirdborough, or thirdborow /(J�rdb(�)r�/. An under
constable. 
Third conviction. See Habitual criminal; Recidivist. 
Third degree. Term used to describe the process of 
securing a confession or information from a suspect or 
prisoner by prolonged questioning, the use of threats, or 
actual violence. See Confession; Interrogation; Miranda 
Rule. 
Term is also sometimes used as a classification of 
crime (e.g. murder in the third degree). 
Thirdings /(J�rdiIJz/. In old English law, the third part 
of the corn growing on the land, due to the lord for a 
heriot on the death of his tenant, within the manor of 
Turfat, in Hereford. 
Third market. See Over-the-counter market. 
Third-night-awn-hinde. In old English law by the laws 
of St. Edward the Confessor, if any man lay a third 
night in an inn, he was called a "third-night-awn-hinde," 
and his host was answerable for him if he committed 
any offense. The first night, forman-night, or uncouth 
(unknown), he was reckoned a stranger; the second 
night, twa-night, a guest; and the third night, an awn
hinde, a domestic. 
Third party. One not a party to an agreement, a 
transaction, or an action but who may have rights 
therein. See also Party; Privity. 
Third party action. A proceeding distinct from the 
main action. It is in the nature of an indemnity or 
contribution, the purpose of which is to bring into the 
lawsuit a party who is or may be liable to defendant for 
all or part of plaintiff's claim against defendant. Ho-

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ward v. Ward County, D.C.N.D., 418 F.Supp. 494, 507. 
See Third party complaint; Third party-practice. 
Third party beneficiary. One for whose benefit a 
promise is made in a contract but who is not a party to 
the contract. Chitlik v. Allstate Ins. Co., 34 Ohio 
App.2d 193, 299 N.E.2d 295, 297, 63 O.O.2d 364. A 
person not a party to an insurance contract who has 
legally enforceable rights thereunder. A prime requi
site to the status of "third party beneficiary" under a 
contract is that the parties to the contract must have 
intended to benefit the third party, who must be some
thing more than a mere incidental beneficiary. McKin
ney v. Davis, 84 N.M. 352, 503 P.2d 332, 333. See also 
Privity. 
Third-party-beneficiary contract. A contract between 
two or more parties, the performance of which is intend
ed to benefit directly a third party, thus giving the third 
party a right to file suit for breach of contract by either 
of the original contract parties. 
Third party check. Check which the payee endorses to 
another party, e.g. as when a person endorses a check 
received from a customer and endorses it to the IRS. A 
person who takes a third-party check in good faith and 
without notice of a security interest can be a holder in 
due course. Valley Nat. Bank v. Porter, C.A.lowa, 705 
F.2d 1027, 1028-29. 
Third party claim proceedings. A summary proceed
ing to determine title to attached property. Dingwall v. 
Anderson, 271 C.A.2d 658, 76 Cal.Rptr. 827; Cal.Code 
Civ.Proc. § 689. 
Third party complaint. A complaint filed by the defen
dant against a third-party (i.e., a person not presently a 
party to the lawsuit). This complaint alleges that the 
third party is or may be liable for all or part of the 
damages which the plaintiff may win from the defen
dant. See Fed.R.Civil P. 14. For requisite content of 
third party claim under Federal Rules of Civil Proce
dure, see Complaint. See also Third-party practice. 
Third-party practice. Under rules practice, a defen
dant may, after the main action has been commenced, 
institute an action against a person not a party to the 
action for all or part of the plaintiffs claim against him. 
See Fed.R.Civ.P. 14. Procedural device whereby defen
dant in an action may bring in additional party in claim 
against such party because of a claim that is being 
asserted against the defendant. Denneler v. Aubel 
Ditching Service, Inc., 203 Kan. 117, 453 P.2d 88, 9l. 
See also Impleader; Third-p arty complaint; Vouching-in. 
Thirds. The designation, in colloquial language, of that 
portion of a decedent's personal estate (one-third) which 
goes to the widow where there is also a child or children. 
Thirteenth Amendment. Amendment to U.S. Constitu
tion which abolished slavery and involuntary servitude 
in 1865. 
Thirty-day letter. A letter which accompanies a reve
nue agent's report (RAR) issued as a result of an Inter
nal Revenue Service audit of a taxpayer (or the rejection 
of a taxpayer's claim for refund). The letter outlines 
1480 
the taxpayer's appeal procedure before the Internal Rev
enue Service. If the taxpayer does not request any such 
procedures within the 30-day period, the Internal Reve
nue Service will issue a statutory notice of deficiency 
(the "90-day letter"). See also Nine ty (90) day letter. 
Thirty-nine articles. See Articles of faith. 
This. When "this" and "that" refer to different things 
before expressed, "this" refers to the thing last men
tioned, and "that" to the thing first mentioned. "This" 
is a demonstrative adjective, used to point out with 
particularity a person or thing present in place or in 
thought. 
This day six months. In English law, fixing "this day 
six months," or "three months," for the next stage of a 
bill, is one of the modes in which the house of lords and 
the house of commons reject bills of which they disap
prove. A bill rejected in this manner cannot be reintro
duced in the same session. 
Thoroughfare. The term means, according to its deriva
tion, a street or passage through which one can fare 
(travel); that is, a street or highway affording an unob
structed exit at each end into another street or public 
passage. If the passage is closed at one end, admitting 
no exit there, it is called a "cul de sac. " 
Thrave. In old English law, a measure of corn or grain, 
consisting of twenty-four sheaves or four shocks, six 
sheaves to every shock. 
Thread. A middle line; a line running through the 
middle of a stream or road. See Filum; Filum acqure; 
Filum vire; Thalweg. 
Threat. A communicated intent to inflict physical or 
other harm on any person or on property. A declara
tion of an intention to injure another or his property by 
some unlawful act. State v. Schweppe, Minn., 237 
N.W.2d 609, 615. A declaration of intention or determi
nation to inflict punishment, loss, or pain on another, or 
to injure another or his property by the commission of 
some unlawful act. U. S. v. Daulong, D.C.La., 60 
F.Supp. 235, 236. A menace; especially, any menace of 
such a nature and extent as to unsettle the mind of the 
person on whom it operates, and to take away from his 
acts that free and voluntary action which alone consti
tutes consent. A declaration of one's purpose or inten
tion to work injury to the person, property, or rights of 
another, with a view of restraining such person's free
dom of action. 
The term, "threat" means an avowed present determi
nation or intent to injure presently or in the future. A 
statement may constitute a threat even though it is 
subject to a possible contingency in the maker's control. 
The prosecution must establish a "true threat," which 
means a serious threat as distinguished from words 
uttered as mere political argument, idle talk or jest. In 
determining whether words were uttered as a threat the 
context in which they were spoken must be considered. 
Threats against the President and successors to the 
President, mailing of threatening communications, and

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other extortionate acts, are federal offenses. 18 V.S. 
C.A. § 871 et seq. 
See also Coercion; Duress; Extortion. 
Terroristic threat. Any threat to commit violence com
municated with intent to terrorize another, or to cause 
the evacuation of any building, place of assembly or 
facility of transportation, or in wanton disregard of the 
risk of causing such terror or evacuation. See Model 
Penal Code § 211. 3; 18 V.S.C.A. § 3077. See also Ter
roristic threats. 
Threatening letters. Mailing of threatening communi
cations is a federal offense. 18 V.S.C.A. §§ 876, 877. 
Three-dollar piece. A gold coin of the Vnited States, of 
the value of three dollars; authorized by the seventh 
section of the act of February 21, 1853. 
Three-judge courts. Most cases in federal district 
courts are heard and determined by only a single judge. 
For many years, however, Congress has provided for a 
special three-judge panel in certain categories of cases 
thought to require special safeguards against arbitrary 
action, with direct review in the Supreme Court. Three 
judges are required in condemnation suits involving the 
TVA, 16 V.S.C.A. Section 831X, and in certain actions 
under the 1964 Civil Rights and 1965 Voting Rights 
Acts, 42 V.S.C.A. Sections 1971 (g), 1973 h(c), 2000a-5(b). 
Of most significance, however, were 28 V.S.C.A. Sections 
2281 and 2282, which required three judges in suits to 
enjoin enforcement of state or federal statutes, or state 
administrative orders, on constitutional grounds. Sec
tions 2281 and 2282 were however repealed in 1976 and 
§ 2284 amended to restrict the convening of three-judge 
courts to when otherwise required by Congress, or to 
when an action is filed challenging the constitutionality 
of congressional apportionment or the apportionment of 
any statewide legislative body. 
Three-mile limit. The distance of one marine league or 
three miles offshore normally recognized as the limit of 
territorial jurisdiction. See Territorial waters. 
Threnges. Vassals, but not of the lowest degree; those 
who held lands of the chief lord. 
Thrift institutions. See Bank; Savings and loan associa
tions. 
Thrithing IOray3iu/. In Saxon and old English law, the 
third part of a county; a division of a county consisting 
of three or more hundreds. Gradually corrupted to 
"riding". 1 Bl.Comm. 11 6. 
Through. By means of, in consequence of, by reason of; 
in, within; over; from end to end, or from one side to 
the other. By the intermediary of; in the name or as 
agent of; by the agency of; because of. Great Atlantic 
& Pacific Tea Co. v. City of Richmond, 183 Va. 931, 33 
S.E.2d 795, 802. "Through" is function word capable of 
several meanings depending on its use; it may indicate 
passage from one side to another, means of communica
tion, or movement from point to point within a broad 
expanse or area. State v. Smith, Mo., 431 S.W.2d 74 78. 
TICKET 
Through bill of lading. That species of bill of lading 
which is used when more than one carrier is required 
for shipping. 
Through lot. A lot that abuts upon a street at each end. 
Through rate. Total shipping costs when two or more 
shippers (carriers) are involved. See Joint through rate; 
Rate. 
Throwback Rule. In taxation of trusts, the throwback 
rule requires that the amount distributed in any tax 
year which is in excess of that year's distributable net 
income must be "thrown back" to the preceding year 
and treated as if it had then been distributed. The 
beneficiary is taxed in the current year although the 
computation is made as if the excess had been distribut
ed in the previous year. If the trust did not have 
undistributed accumulated income in the preceding 
year, the amount of the throwback is tested against each 
of the preceding years; in other words, the throwback 
rule may require consideration of the trust income and 
its distributions for all of the years preceding the tax 
year. I.R.C. §§ 665-668. 
As term is also used in taxation, if there is no income 
tax in the state to which a sale would otherwise be 
assigned for apportionment purposes, the sale essential
ly is exempt from state income tax, even though the 
seller is domiciled in a state that levies an income tax. 
Nonetheless, if the seller's state has adopted a throw
back rule, the sale is attributed to the seller's state, and 
the transaction is subjected to a state-level tax. See also 
Apportionment. 
Thrown from automobile. This phrase within accident 
policy means tossed or hurled out of automobile by some 
force. Independence Ins. Co. v. Blanford's Adm'x, 276 
Ky. 692, 125 S.W.2d 249, 251. 
Throw out. To ignore (e.g. a bill of indictment) or 
dismiss a cause of action. See also Dismissal. 
Thrusting. Within the meaning of a criminal statute, is 
not necessarily an attack with a pointed weapon; it 
means pushing or driving with force, whether the point 
of the weapon be sharp or not. 
Thrymsa l(}rims';)l. A Saxon coin worth fourpence. 
Thude-weald I(}(y)uwdwiyld/. A woodward, or person 
that looks after a wood. 
Thuringian Code I(}';)rinj(iy)';)n k6wd/. One of the "bar
barian codes," as they are termed; supposed by Montes
quieu to have been given by Theodoric, king of Austra
sia, to the Thuringians, who were his sub jects. 
Thus. In the way just indicated. Schrader v. City of Los 
Angeles, 19 Cal.App.2d 332, 65 P.2d 374, 375. 
Thwertnick. In old English law, the custom of giving 
entertainments to a sheriff, etc., for three nights. 
Tick. A colloquial expression for. credit or trust; credit 
given for goods purchased. 
Ticket. In contracts, a slip of paper containing a certifi
cate that the person to whom it is issued, or the holder, 
is entitled to some right or privilege therein mentioned

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or described; such, for example, are railroad tickets, 
theater tickets, pawn tickets, lottery tickets, etc. 
Citation or summons issued to violator of motor ve
hicle law. See also Citation. 
In election law, a list of candidates for particular 
offices to be submitted to the voters at an election; a 
ballot. 
Ticket of leave. In English law, a license or permit 
given to a convict, as a reward for good conduct, origi
nally in the penal settlements, which allows him to go at 
large, and labor for himself, before the expiration of his 
sentence, sub ject to certain specific conditions and revo
cable upon subsequent misconduct. English equivalent 
of parole. Such is governed by Criminal Justice Act of 
1967, §§ 59-62, as amended by Criminal Law Act of 
1977, and extended by Criminal Justice Act of 1982, 
§ 33. 
Ticket-of-leave man. A convict who has obtained a 
ticket of leave. 
Ticket speculator. One who purchases and then resells 
tickets at a price over their face value. A scalper. 
Tidal. Affected by or having tides. In order that a river 
may be "tidal" at a given spot, it may not be necessary 
that the water should be salt, but the spot must be one 
where the tide, in the ordinary and regular course of 
things, flows and reflows. 
Tide. The ebb and flow of the sea. As affecting determi
nation of upland boundary of shore, "tide" is rising and 
falling of water of the sea that is produced by attraction 
of sun and moon, uninfluenced by special winds, seasons 
or other circumstances, and meteorological influences 
should be distinguished as "meterological tides," and 
"atmospheric meteorological tides" should be distin
guished. Humble Oil & Refining Co. v. Sun Oil Co., 
C.A.Tex., 190 F.2d 191, 195. See also Mean high tide; 
Mean low tide. 
Neap tides. Those tides which happen between the full 
and change of the moon twice in every 24 hours. 
Tideland. Land between the lines of the ordinary high 
and low tides, covered and uncovered successively by the 
ebb and flow thereof; land covered and uncovered by 
the ordinary tides; land over which the tide ebbs and 
flows; land which is daily covered and uncovered by 
water by the ordinary ebb and flow of normal tides; 
land usually overflowed by the neap or ordinary tides; 
such land as is affected by the tide, that lies between 
ordinary high-water mark and low-water mark, and 
which is alternately covered and left dry by the ordinary 
flux and reflux of the tides; that portion of the shore or 
beach covered and uncovered by the ebb and flow of 
ordinary tides. White v. State, 18 Cal.App.3d 729, 96 
Cal. Rptr. 173, 174. 
Tide-water. Water which falls and rises with the ebb 
and flow of the tide. The term is not usually applied to 
the open sea, but to coves, bays, rivers, etc. 
1482 
Tideway. That land between high and low water mark. 
In re Inwood Hill Park in Borough of Manhattan, City of 
New York, 217 App.Div. 587, 217 N.Y.S. 359, 363. 
Tidesmen. In English law, are certain officers of the 
custom-house, appointed to watch or attend upon ships 
until the customs are paid; and they are so called 
because they go aboard the ships at their arrival in the 
mouth of the Thames, and come up with the tide. 
Tie, v. To bind. 
Tie, n. When, at an election, neither candidate receives 
a majority of the votes cast, but each has the same 
number, there is said to be a "tie." Exists also when the 
number of votes cast in favor of any measure, in a 
legislative or deliberative body, is equal to the number 
cast against it. The Vice President of the United States 
has the deciding vote in the event of tie votes in the 
Senate. Art. I, § 3, U .S.Const. 
Tied product. Tying arrangement exists when a person 
agrees to sell one product, the "tying product," only on 
the condition that the vendee also purchase another 
product, the "tied product." Northern v. McGraw-Edi
son Co., C.A.Mo., 542 F.2d 1336, 1344. See Tying ar
rangement. 
Tie-in arrangement. See Tied product; Tying arrange
ment. 
Tiel. L. Fr. Such. Nul tiel record, no such record. 
Tiempo inhabil It(i)yempow inhabiyll. Span. A time 
of inability; a time when the person is not able to pay 
his debts (when, for instance, he may not alienate prop
erty to the prejudice of his creditors). The term is used 
in Louisiana. 
Tierce Itirs/t;}rsl. L. Fr. Third. Tierce mein It;}rs 
meyn/, third hand. 
Tierce Itirs/t;}rs/. A liquid measure, containing the 
third part of a pipe, or forty-two gallons. 
TIF. See Tax increment financing. 
Tigh Itay/. In old records, a close or inclosure; a croft. 
Tight. As colloquially applied to a note, bond, mortgage, 
lease, etc., this term signifies that the clauses providing 
the creditor's remedy in case of default (as, by fore
closure, execution, distress, etc.) are summary and strin
gent. 
Tigni immittendi Itignay im;}tenday/. Lat. In the civil 
law, the name of a servitude which is the right of 
inserting a beam or timber from the wall of one house 
into that of a neighboring house, in order that it may 
rest on the latter, and that the wall of the latter may 
bear this weight. 
Tignum Itign�m/. Lat. A civil law term for building 
material; timber. 
Tihler. In old Saxon law, an accusation. 
Tillage. A place tilled or cultivated; land under cultiva
tion, as opposed to lands lying fallow or in pasture.

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Till-tapping. Theft of money from a cash register. 
Nash v. U. S., C.A.Mo., 405 F.2d 1047, 1049. 
Timber lease. Lease of real property which contem
plates that the lessee will cut timber on the demised 
premises. See also Timber rights. 
Timberlode. A service by which tenants were bound to 
carry timber felled from the woods to the lord's house. 
Timber rights. A profit a prendre, the owner of which 
is entitled to cut and remove timber from the real 
property described therein. Blair v. Kimberly-Clark 
Corp., Ala., 474 So.2d 661, 662. See also Profit (Profit a 
prendre); Timber lease. 
Time. The measure of duration. The word is expressive 
both of a precise point or terminus and of an interval 
between two points. 
A point in or space of duration at or during which 
some fact is alleged to have been committed. 
See also Computation of time; Elargement of time. 
Cooling time. See Cooling off period. 
Reasonable time. Such length of time as may fairly, 
properly, and reasonably be allowed or required, having 
regard to the nature of the act or duty, or of the 
subj ect-matter, and to the attending circumstances. It 
is a maxim of English law that "how long a 'reasonable 
time' ought to be is not defined in law, but is left to the 
discretion of the judges." Twin Lick Oil Co. v. Marbury, 
91 U.S. 587, 591, 23 L.Ed. 328. See also Reasonable 
time. 
Time-bargain. In the language of the stock exchange, 
an agreement to buy or sell stock at a future time, or 
within a fixed time, at a certain price. It is in reality 
nothing more than a bargain to pay differences. 
Time bill. A bill of exchange which contains a definite 
or determinable date for payment in contrast to a de
mand or sight bill. 
Time charter. A time charter is a specific and express 
contract by which the owner lets a vessel or some 
particular part thereof to another person for a specified 
time or use; the owner continues to operate the vessel, 
contracting to render services by his master and crew to 
carry goods loaded on the vessel, and the master and 
crew remain servants of the owner. Atlantic Banana 
Co. v. M. V. "Calanca", D.C.N.Y., 342 F.Supp. 447, 453. 
A lease of vessel under which owner provides captain 
and crew who remain subject to owner's control. Gillen
tine v. McKeand, C.A.Mass., 426 F.2d 717, 719. Com
pare Bareboat charter. 
Time credit. A letter of credit that is duly honored by 
the issuer accepting drafts drawn thereunder. Essen
tially synonymous with "usance credit" and "acceptance 
credit." 
Time deposit. Another term for a savings account or 
certificate of deposit in a commercial bank. It is so 
called because in theory (though no longer in practice) a 
. person must wait a certain amount of time after notice 
of desire to withdraw part or all of his or her savings. 
TINEL 
Certificates of deposit usually carry penalties for early 
withdrawal. Cash in a bank earning interest; contrast 
with demand deposit. See Deposit. 
Time draft. A draft payable at a definite time in the 
future. See also Time bill, above. 
Time immemorial. Time whereof the memory of a man 
is not to the contrary. 
Time is the essence of contract. Means that performance 
by one party at time or within period specified in con
tract is essential to enable him to require performance 
by other party. Hayes Mfg. Corporation v. McCauley, 
C.C.A.Ohio, 140 F.2d 187, 189. When this phrase is in a 
contract, it means that a failure to do what is required 
by the time specified is a breach of the contract. 
Time of memory. In English law, time commencing 
from the beginning of the reign of Richard I. 2 Bl. 
Comm. 31. Lord Coke defines time of memory to be 
"when no man alive hath had any proof to the contrary, 
nor hath any conusance to the contrary." 
Time order. An order which becomes a market or 
limited price order at a specified time. 
Time out of memory. Time beyond memory; time out of 
mind; time to which memory does not extend. 
Time-policy. A policy of marine insurance in which the 
risk is limited, not to a given voyage, but to a certain 
fixed term or period of time. 
Time value. The price associated with the length of 
time an investor must wait until an investment matures 
or the related income is earned. See also Yield (Yi eld to 
maturity). 
Timeliness. The importance of fulfilling the terms of a 
contract by the date provided for in the agreement. See, 
Time (Time is the essence of contract). 
Time-price differential. "Time price differential" re
fers to a figure representing the difference between the 
cash price of an item and the total cost of purchasing 
that item on credit. Topline Equipment, Inc. v. Stan 
Witty Land, Inc., 321 Wash.App. 86, 639 P.2d 825, 829. 
Method by which seller charges one price for immediate 
cash payment and a different (advance in) price when 
payment is made at future date or in installments and 
the former is the cash price and the latter the "time
price" or credit price and difference in price is the 
"time-price differential". State ex reI. Guste v. Council 
of City of New Orleans, La.App., 297 So.2d 518, 525. 
Timesharing. Form of shared property ownership, com
monly in vacation or recreation condominium property, 
wherein rights vest in several owners to use property for 
specified period each year (e.g., two weeks each year). 
Timocracy. An aristocracy of property; government by 
men of property who are possessed of a certain income. 
Timores vani sunt restimandi qui non cadunt con
stantem virum /t::lmoriyz veynay s�nt est::lmrenday 
kway non keyd:mt k::lnstrent::lm vayr::lm/. Fears which 
do not assail a resolute man are to be accounted vain . 
Tinel. L. Fr. A place where justice was administered.

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Tineman Ibiynm:m/. Sax. In old forest law, a petty 
officer of the forest who had the care of vert and venison 
by night, and performed other servile duties. 
Tinewald Ibiynwold/tin 0 I. The ancient parliament or 
annual convention in the Isle of Man, held upon Mid
summer-day, at St. John's chapel. 
Tinkermen ItiIJk�rm:m/. Fishermen who destroyed the 
young fry on the river Thames by nets and unlawful 
engines. 
Tinpenny. A tribute paid for the liberty of digging in 
tin-mines. 
Tip. A sum of money given, as to a servant, waiter, 
bellman, or the like, over and above actual cost or 
charge for services rendered, with the amount common
ly varying upon the quality of such service. A form of 
gratuity for extra services rendered. Tip income is 
taxable. I.R.C. § 61(a). 
In securities law, refers to advance or inside informa
tion passed by one person (a "tipper") to another (a 
"tippee") as a basis for a decision to buy or sell a 
security. Such information is presumed to be of materi
al value and not available to the general public. The 
SEC prohibits trading on the basis of such information 
by insiders. See also Ins ider; Insider trading; Tippees; 
Tipper. 
Tippees. In securities law, person who acquires materi
al nonpublic information from another who enjoys a 
fiduciary relationship with the company to which such 
information pertains. Persons given information by in
siders in breach of trust. Ross v. Licht, D.C.N.Y., 263 
F.Supp. 395, 410. The purpose of SEC Rule 1Ob-5 (q.v.) 
is to prevent corporate insiders and their "tippees" from 
taking unfair advantage of the uninformed outsiders. 
Radiation Dynamics, Inc. v. Goldmuntz, C.A.N.Y., 464 
F.2d 876. See also Ins ider; Tip; Tipper. 
Tipper. A person who possesses material inside infor
mation and who makes selective disclosure of such infor
mation for trading or other personal purposes; "tippee" 
is one who receives such information from "tipper." 
Grumet v. Shearsonl American Exp., Inc., D.C.N.J., 564 
F.Supp. 336, 340. See also Ins ider; Tip; Tippees. 
Tippling house. A place where intoxicating drinks are 
sold in drams or small quantities to be drunk on the 
premises, and where men resort for drinking purposes. 
Tipstaff. An officer appointed by the court, whose duty 
is to wait upon the court when it is in session, preserve 
order, serve process, guard juries, etc. See Bailiff. 
In English law, an officer appointed by the marshal of 
the king's bench to attend upon the judges with a kind 
of rod or staff tipped with silver, who take into their 
custody all prisoners, either committed or turned over 
by the judges at their chambers, etc. 
Tithe. A tenth part of one's income, contributed for 
charitable or religious purposes. Broadly, any tax or 
assessment of one tenth. See also Tithes; Tithing. 
Tither Itay��r/. One who gathers tithes. 
1484 
Tithes Itay�z/. In English law, the tenth part of the 
increase, yearly arising and renewing from the profits of 
lands, the stock upon lands, and the personal industry of 
the inhabitants. 2 Bl.Comm. 24. A species of incorpore
al hereditament, being an ecclesiastical inheritance col
lateral to the estate of the land, and due only to an 
ecclesiastical person by ecclesiastical law. See also 
Tithe. 
Great tithes. In English ecclesiastical law, tithes of 
corn, peas and beans, hay and wood. 
Minute tithes. Small tithes, such as usually belong to a 
vicar, as of wool, lambs, pigs, butter, cheese, herbs, 
seeds, eggs, honey, wax, etc. 
Mixed tithes. Those which arise not immediately from 
the ground, but from those things which are nourished 
by the ground, e.g., colts, chickens, calves, milk, eggs, 
etc. 
Personal tithes. Personal tithes are tithes paid of such 
profits as come by the labor of a man's person; as by 
buying and selling, gains of merchandise and handi
crafts, etc. 
Predial tithes. Such as arise immediately from the 
ground; as, grain of all sorts, hay, wood, fruits, and 
herbs. 
Tithe-free. Exempted from the payment of tithes. 
Tithe rent-charge. A rent-charge established in lieu of 
tithes, under the tithes commutation act, 1836 (St. 6 § 7 
Wm. IV, c. 71). As between landlord and tenant, the 
tenant paying the tithe rent-charge is entitled, in the 
absence of express agreement, to deduct it from his rent, 
under section 70 of the above act. And a tithe rent
charge unpaid is recoverable by distress as rent in 
arrear. 
Tithing Itay�iIJ/. Act of paying tithes. One of the civil 
divisions of England, being a portion of that greater 
division called a "hundred." It was so called because 
ten freeholders with their families composed one. It is 
said that they were all knit together in one society, and 
bound to the king for the peaceable behavior of each 
other. In each of these societies there was one chief or 
principal person, who, from his office, was called "teoth
ing-man," now "tithing-man." 
Tithing-man Itay�iIJmren/. A constable. After the in
troduction of justices of the peace, the offices of con
stable and tithing-man became so similar that they were 
regarded as precisely the same. 
In New England, a parish officer annually elected to 
preserve good order in the church during divine service, 
and to make complaint of any disorderly conduct. 
In Saxon law, the head or chief of a tithing or decen
nary of ten families; he was to decide all lesser causes 
between neighbors. In modern English law, he is the 
same as an under-constable or peace-officer. 
Tithing-penny Itay�iIJPEmiy/. In Saxon and old English 
law, money paid to the sheriff by the several tithings of 
his county.

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1485 
Titius /tish(iy)�s/. In Roman law, a proper name, fre
quently used in designating an indefinite or fictitious 
person, or a person referred to by way of illustration. 
"Titius" and "Seius," in this use, correspond to "John 
Doe" and "Richard Roe," or to "A.B." and "C.D." 
Title. A mark, style, or designation; a distinctive appel
lation; the name by which anything is known. Thus, in 
the law of persons, a title is an appellation of dignity or 
distinction, a name denoting the social rank of the 
person bearing it; as "duke" or "count." So, in legisla
tion, the title of a statute is the heading or preliminary 
part, furnishing the name by which the act is individual
ly known. It is usually prefixed to the statute in the 
form of a brief summary of its contents; as "An act for 
the prevention of gaming." Again, the title of a patent 
is the short description of the invention, which is copied 
in the letters patent from the inventor's petition; e.g., "a 
new and improved method of drying and preparing 
malt." 
The title of a book, or any literary composition, is its 
name; that is, the heading or caption prefixed to it, and 
disclosing the distinctive appellation by which it is to be 
known. This usually comprises a brief description of its 
sub ject-matter and the name of its author. 
See also Abstract of title; Action to quiet title; Bad title; 
Cloud on title; Color of title; Defective title; Disparage
ment of title; Doubtful title; Good title; Indicia of title; Just 
title; Legal title; Marketable title; Marketable Title Acts; 
Merchantable title; Muniments of title; Non- merchantable 
title; Onerous title; Owner; Ownership; Paramount title; 
Possession; Recording acts; Torrens title system; Worthi
er title. 
Law of Trademarks 
A title may become a sub ject of property; as one who 
has adopted a particular title for a newspaper, or other 
business enterprise, may, by long and prior usage, or by 
compliance with statutory provisions as to registration 
and notice, acquire a right to be protected in the exclu
sive use of it. See Trademark. 
Real Property Law 
The formal right of ownership of property. Title is 
the means whereby the owner of lands has the just 
possession of his property. The union of all the ele
ments which constitute ownership. Full independent 
and fee ownership. The right to or ownership in land; 
also, the evidence of such ownership. Such ownership 
may be held individually, jointly, in common, or in 
cooperate or partnership form. 
One who holds vested rights in property is said to 
have title whether he holds them for his own benefit or 
for the benefit of another. Restatement, Second, Trusts, 
§ 2, Comment d. 
See also Deed; Estate. 
Procedure 
Every action, petition, or other proceeding has a title, 
which consists of the name of the court in which it is 
TITLE 
pending, the names of the parties, etc. Administration 
actions are further distinguished by the name of the 
deceased person whose estate is being administered. 
Every pleading, summons, affidavit, etc., commences 
with the title. In many cases it is sufficient to give 
what is called the "short title" of an action, namely, the 
court, the reference to the record, and the surnames of 
the first plaintiff and the first defendant. See also 
Caption. 
Generally 
Absolute title. As applied to title to land, an exclusive 
title, or at least a title which excludes all others not 
compatible with it. An absolute title to land cannot 
exist at the same time in different persons or in differ
ent governments. See also Fee simple. 
Abstract of title. See that title. 
Adverse title. A title set up in opposition to or defea
sance of another title, or one acquired or claimed by 
adverse possession. See Adverse possession. 
Bad title. See that title. 
Bond for title. See Bond. 
By accession. Title acquired by additions innocently 
acquired such as in the case of intermingling of anoth
er's property with one's own. See Accession. 
By accretion. Title acquired by additions to one's prop
erty as in the case of deposits of soil from a stream. See 
Accretion. 
By adverse possession. See Adverse possession. 
Chain of title. See that title; also Abstract of title. 
Clear title, good title, merchantable title, marketable 
title, are synonymous; "clear title" meaning that the 
land is free from incumbrances, "good title" being one 
free from litigation, palpable defects, and grave doubts, 
comprising both legal and equitable titles and fairly 
deducible of record. See Marketable title. 
Clear title of record, or clear record title. Title free from 
apparent defects, grave doubts, and litigious uncertain
ties, and is such title as a reasonably prudent person, 
with full knowledge, would accept. A title dependent 
for its validity on extraneous evidence, ex parte affida
vits, or written guaranties against the results of litiga
tion is not a clear title of record, and is not such title as 
equity will require a purchaser to accept. See Market
able title. 
Cloud on title. See that title. 
Color of title. See that title. 
Covenants for title. Covenants usually inserted in a 
conveyance of land, on the part of the grantor, and 
binding him for the completeness, security, and continu
ance of the title transferred to the grantee. They com
prise "covenants for seisin, for right to convey, against 
incumbrances, for quiet enjoyment, sometimes for fur
ther assurance, and almost always of warranty." See 
Covenant.

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TITLE 
Defective title. Title which has some defect or is subject 
to litigation and hence may not be transferred to anoth
er. See Unmarketable title. 
Document of title. See Document. 
Doubtful title. See that title. 
Equitable title. A right in the party to whom it belongs 
to have the legal title transferred to him; or the benefi
cial interest of one person whom equity regards as the 
real owner, although the legal title is vested in another. 
See also Equitable ownership. 
Examination of title. See Examination; Title search. 
Good title. Title which is free of defects and litigation 
and hence may be transferred to another. See Market
able title. 
Imperfect title. One which requires a further exercise of 
the granting power to pass the fee in land, or which does 
not convey full and absolute dominion. 
Legal title. See that title. 
Lucrative title. In the civil law, title acquired without 
the giving of anything in exchange for it; the title by 
which a person acquires anything which comes to him 
as a clear gain, as, for instance, by gift, descent, or 
devise. Opposed to Onerous title, as to which see below. 
Marketable title. See that title. 
Onerous title. In the civil law, title to property acquired 
by the giving of a valuable consideration for it, such as 
the payment of money, the rendition of services, the 
performance of conditions, the assumption of obli
gations, or the discharge of liens on the property; op
posed to "lucrative" title, or one acquired by gift or 
otherwise without the giving of an equivalent. 
Paper title. A title to land evidenced by a conveyance or 
chain of conveyances; the term generally implying that 
such title, while it has color or plausibility, is without 
substantial validity. 
Paramount title. See that title. 
Perfect title. Various meanings have been attached to 
this term: (1) One which shows the absolute right of 
possession and of property in a particular person. See 
Fee simple. (2) A grant of land which requires no 
further act from the legal authority to constitute an 
absolute title to the land taking effect at once. (3) A 
title which does not disclose a patent defect suggesting 
the possibility of a lawsuit to defend it; a title such as a 
well-informed and prudent man paying full value for the 
property would be willing to take. (4) A title which is 
good both at law and in equity. (5) One which is good 
and valid beyond all reasonable doubt. (6) A market
able or merchantable title. See Marketable title. 
Presumptive title. A barely presumptive title, which is 
of the very lowest order, arises out of the mere occupa
tion or simple possession of property (jus possessionis), 
without any apparent right, or any pretense of right, to 
hold and continue such possession. 
Quiet title. See Quiet title action. 
1486 
Record title. See Record. 
Root of title. Root of title means that conveyance or 
other title transaction or other link in the chain of title 
of a person, purporting to create the interest claimed by 
such person, upon which he relies as a basis for the 
marketability of his title, and which was the most recent 
to be recorded or established as of a date forty years 
prior to the time when marketability is being deter
mined. The effective date of the "root of title" is the 
date on which it is recorded. 
Singular title. The title by which a party acquires 
property as a singular successor. 
Tax title. See Tax. 
Title by adverse possession or prescription. The right 
which a possessor acquires to property by reason of his 
adverse possession during a period of time fixed by law. 
See Adverse possession. 
The elements of title by prescription are open, visible 
and continuous use under a claim of right, adverse to 
and with knowledge of owner. Dry Gulch Ditch Co. v. 
Hutton, 170 Or. 656, 133 P.2d 601, 610. Such title is 
equivalent to a "title by deed" and cannot be lost or 
divested except in the same manner, and mere recogni
tion of title in another after such acquisition will not 
operate to divest the adverse claimant of that which he 
has acquired. Maloney v. Bedford, 290 Ky. 647, 162 
S.W.2d 198, 199. 
Title by descent. That title which one acquires by law as 
heir to the deceased owner. 
Title by prescription. See Title by adverse possession or 
prescription, above. 
Title deeds. Deeds which constitute or are the evidence 
of title to lands. See Deed. 
Title defective in form. Title on face of which some 
defect appears, not one that may prove defective by 
circumstances or evidence dehors the instrument. Title 
defective in form cannot be basis of prescription. 
Title insurance. See Insurance. 
Title of a cause. The distinctive appellation by which 
any cause in court, or other juridical proceeding, is 
known and distinguished from others. See Caption. 
Title of an act. The heading, or introductory clause, of 
a statute, wherein is briefly recited its purpose or na
ture, or the subject to which it relates. 
Title of clergymen (to orders). Some certain place where 
they may exercise their functions; also an assurance of 
being preferred to some ecclesiastical benefice. 
Title of declaration. That preliminary clause of a decla
ration which states the name of the court and the term 
to which the process is returnable. 
Title of entry. The right to enter upon lands. 
Title of record. Evidence that· real property is in the 
lawful possession of owner. Such title is acquired 
through a deed, a will, adverse possession, or eminent

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1487 
domain. The conditions of the title are found in a title 
search. 
Title registration. See Torrens title system. 
Title retention. A form of lien, in the nature of a 
chattel mortgage, to secure the purchase price. Ameri
can Indemnity Co. v. Allen, for Use and Benefit of 
Commerce Union Bank, 176 Tenn. 134, 138 S.W.2d 445, 
446. 
Title to orders. In English ecclesiastical law, a title to 
orders is a certificate of preferment or provision re
quired by the thirty-third canon, in order that a person 
may be admitted into holy orders, unless he be a fellow 
or chaplain in Oxford or Cambridge, or master of arts of 
five years' standing in either of the universities, and 
living there at his sole charges; or unless the bishop 
himself intends shortly to admit him to some benefice or 
curacy. 
Unity of title. See that title. 
Unmarketable title. See that title. 
Warranty of title. See Warranty. 
Title company. Company that examines real estate 
titles and, commonly, issues title insurance. See Title 
search. 
Title documents. Those instruments necessary for es
tablishing or for conveying good title; e.g. deed. 
Title guaranty company. A business organization 
which searches title to determine whether any defects or 
encumbrances are recorded and which then gives the 
buyer of the property or the mortgagee a guaranty of 
the title. 
Title insurance. See Insurance. 
Title opinion. An opinion (usually by an attorney or 
title company) on the legal state of the title of specific 
real property. It should reflect any clouds on title such 
as rights of way, servitudes and easements. See also 
Title search. 
Title search. An examination of the records of the 
registry of deeds or other office which contains records 
of title documents to determine whether title to the 
property is good; i.e. whether there are any defects in 
the title. The examiner then prepares an abstract of 
the documents examined. See also Abstract of title; Back 
title letter; Examination; Title company. 
Title standards. Criteria by which a title to real estate 
may be evaluated to determine whether it is defective or 
marketable. Many states through associations of con
veyancers and real estate attorneys have adopted such 
standards. 
Title theory. A mortgage law theory that holds that 
from the date of the mortgage execution until the mort
gage is satisfied or foreclosed, legal title belongs to the 
mortgagee and the right to possession belongs to the 
mortgager while mortgage is not in default. 
Title transaction. Any transaction affecting title to any 
interest in land, including title by will or descent, title 
TOKEN-MONEY 
by tax deed, or deed by trustee, referee, guardian, execu
tor, administrator, master in chancery, sheriff, or any 
other form of deed, or decree of any court, as well as 
warranty deed, quitclaim deed, mortgage, or transfer or 
conveyance of any kind. 
Titulada /tiytuwilioa/. In Spanish law, title. 
Titulus /tity�l�s/. Lat. Title. In the civil law, the 
source or ground of possession; the means whereby 
possession of a thing is acquired, whether such posses
sion be lawful or not. 
In old ecclesiastical law, a temple or church; the 
material edifice. So called because the priest in charge 
of it derived therefrom his name and title. 
Titulus est justa causa possidendi id quod nostrum 
est; dicitur a tuendo /tity�l�s est j�st� k6z� p6s�diyen
day id kw6d n6str�m est, dis�t�r ey t(y)uwendow/. A 
title is the just right of possessing that which is our own; 
it is so called from "tuendo," defending. 
To. While this is ordinarily a word of exclusion, when 
used in describing premises, it has been held that the 
word in a statute may be interpreted as exclusionary or 
inclusionary depending on the legislative intent as 
drawn from the whole statute. Clark v. Bunnell, 172 
Colo. 32, 470 P.2d 42, 44. It may be a word of inclusion, 
and may also mean "into." 
Toft. A place or piece of ground on which a house 
formerly stood, which has been destroyed by accident or 
decay. 
Toftman. In old English law, the owner of a toft. 
Togati /towgeytay/. Lat. In Roman law, advocates; so 
called under the empire because they were required, 
when appearing in court to plead a cause, to wear the 
toga, which had then ceased to be the customary dress in 
Rome. 
Together. In union with, along with. Gilmore v. Mulvi
hill, 109 Mont. 601, 98 P.2d 335, 341. 
To have and to hold. The words in a conveyance which 
show the estate intended to be conveyed. Thus, in a 
conveyance of land in fee-simple, the grant is to "A. and 
his heirs, to have and to hold the said [land] unto and to 
the use of the said A., his heirs and assigns forever." 
Strictly speaking, however, the words "to have" de
note the estate to be taken, while the words "to hold" 
signify that it is to be held of some superior lord, i.e., by 
way of tenure (q.v.). The former clause is called the 
"habendum;" the latter, the "tenendum. " 
Token. A sign or mark; a material evidence of the 
existence of a fact. A sign or indication of an intention 
to do something as in the case of one who places a small 
order to show good faith to a seller with a view towards 
placing a larger order at a future time. 
Token-money. A conventional medium of exchange 
consisting of pieces of metal, fashioned in the shape and 
size of coins, and circulating among private persons, by 
consent, at a certain value. No longer permitted or 
recognized as money.

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TOLERATE 
Tolerate. To allow so as not to hinder; to permit as 
something not wholly approved of; to suffer; to endure. 
Toleration. The allowance of religious opinions and 
modes of worship which are contrary to, or different 
from, those of the established church or belief. 
Toleration Act. The statute 1 W. & M. St. 1, c. 18, for 
exempting Protestant dissenters from the penalties of 
certain laws is so called. 
Toll, v. To bar, defeat, or take away; thus, to toll the 
entry means to deny or take away the right of entry. 
To suspend or stop temporarily as the statute of 
limitations is tolled during the defendant's absence from 
the jurisdiction and during the plaintiffs minority. 
Toll, n. A sum of money for the use of something, 
generally applied to the consideration which is paid for 
the use of a road, highway, bridge, or the like, of a 
public nature. Sands v. Manistee River Imp. Co., 123 
U.S. 288, 8 S.Ct. 11 3, 31 L.Ed. 149; Rogge v. United 
States, C.C.A.Alaska, 128 F.2d 800, 802. The price of 
the privilege of travel over that particular highway and 
it is a quid pro quo and rests on principle that he who 
receives the toll does or has done something as an 
equivalent to him who pays it. State ex reI. Washington 
Toll Bridge Authority v. Yelle, 195 Wash. 636, 82 P.2d 
120, 125. Charge for long-distance telephone calls. 
Tollage. Payment of toll; money charged or paid as toll; 
the liberty or franchise of charging toll. 
Tollbooth. A prison; a customhouse; an exchange; also 
the place where goods are weighed or tolls collected. 
Tolldish. A vessel by which the toll of corn for grinding 
is measured. 
Toller. One who collects tribute or taxes. 
Tollere It61�riy/. Lat. In the civil law, to lift up or 
raise; to elevate; to build up. 
Tolle voluntatem et erit omnis actus indifferens 
It6liy vobnteyt�m et ehr�t 6mniy rekt�s indif�renz/. 
Take away the will, and every action will be indifferent. 
Tolls. In a general sense, any manner of customs, subsi
dy, prestation, imposition, or sum of money demanded 
for exporting or importing of any goods or merchandise 
to be taken of the buyer. See also Toll. 
Tollsester Itowlsest�r/. In old English law, an excise; a 
duty paid by tenants of some manors to the lord for 
liberty to brew and sell ale. 
Tolt. In old English law, a writ whereby a cause depend
ing in a court baron was taken and removed into a 
county court. 
Tolta It6wlt�/. In old English law, wrong; rapine; ex
tortion. 
Tomb Ituwm/. An excavation in earth or rock, intended 
to receive the dead body of a human being. 
Tombstone I tuwmstown I . Stone marking place of buri
al and usually inscribed with memorial of deceased. 
1488 
Tombstone ad. A notice, circular or advertisement 
placed in newspaper of a stock offering containing basic 
information and language to the effect that the an
nouncement is neither an offer to sell nor a solicitation 
of an offer to buy any of the securities listed. The 
actual securities offer is made only by means of the 
prospectus. See also Red herring. 
Ton. A measure of weight; differently fixed, at two 
thousand pounds avoirdupois, or at twenty hundred
weights, each hundred-weight being one hundred and 
twelve pounds avoirdupois. A short ton is 20 short 
hundred-weight (2000 Ibs.) or 0.907 metric tons; a long 
ton is 20 long hundred-weight (2240 Ibs.) or 1.016 metric 
tons. There are also various types of tons in shipping 
usage; e.g. freight ton and register ton. 
Ton mile. In transportation, the measure equal to the 
transportation of one ton of freight one mile. 
Tonnage. The capacity of a vessel for carrying freight 
or other loads, calculated in tons. But the way of 
estimating the tonnage varies in different countries. 
Per ton duty or charge on cargo. Total shipping ton
nage of country or port. 
Tonnage-duty. A tax laid upon vessels according to 
their tonnage or cubical capacity. The vital principle of 
a tonnage duty is that it is imposed, whatever the 
sub ject, solely according to the rule of weight, either as 
to the capacity to carry or the actual weight of the thing 
itself. 46 U.S.C.A. § 121 et seq. 
Tonnage-rent. When the rent reserved by a mining 
lease or the like consists of a royalty on every ton of 
minerals gotten· in the mine, it is often called a "ton
age-rent." There is generally a dead rent in addition. 
Tonnagium It�neyj(iy)�m/. In old English law, a cus
tom or impost upon wines and other merchandise ex
ported or imported, according to a certain rate per ton. 
Tonnetight It;}ntayt/. In old English law, the quantity 
of a ton or tun, in a ship's freight or bulk, for which 
tonnage or tunnage was paid to the king. 
Tonsura Itons(y)ur�/. Lat. In old English law, a shav
ing, or polling; the having the crown of the head sha
ven; tonsure. One of the peculiar badges of a clerk or 
clergyman. 
Tontine Itontiyn/. A financial arrangement (such as an 
insurance policy) in which a group of participants share 
advantages on such terms that upon the default or death 
of any participant, his advantages are distributed among 
the remaining participants until only one remains, 
whereupon the whole goes to him; or on the expiration 
of an agreed period, the whole goes to those participants 
remaining at that time. Under the "Tontine" plan of 
insurance, no accumulation or earnings are credited to 
the policy unless it remains in force for the Tontine 
period of a specified number of years. Thus those who 
survive the period and keep their policies in force share 
in the accumulated funds and those who die or permit 
their policies to lapse during period do not; neither do 
their beneficiaries participate in such accumulation.

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1489 
Commercial Travelers' Ins. Co. v. Carlson, 104 Vtah 41, 
137 P.2d 656, 660. 
In French law, a species of association or partnership 
formed among persons who are in receipt of perpetual or 
life annuities, with the agreement that the shares or 
annuities of those who die shall accrue to the survivors. 
This plan is said to be thus named from Tonti, an 
Italian, who invented it in the seventeenth century. 
The principle is used in some forms of life insurance. 
Took and carried away. In criminal pleading, techni
cal words necessary in an indictment for simple larceny. 
Top lease. A lease made before the prior lease has 
expired; therefore the term of the new lease overlaps 
the term of the old lease. St. Clair v. Exeter Explora
tion Co., C.A.N.D., 671 F.2d 1091, 1095. A subsequent 
oil and gas lease which covers one or more mineral 
interests that are sub ject to a valid, subsisting prior 
lease. 
Torpedo doctrine. Attractive nuisance doctrine. 
Schock v. Ringling Bros. and Barnum & Bailey Com
bined Shows, 5 Wash.2d 599, 105 P.2d 838, 843. See 
Attractive nuisance doctrine. 
Torrens title system It6hr:mz tayt;)l sist;)m/. A system 
for registration of land under which, upon the land
owner's application, the court may, after appropriate 
proceedings, direct the issuance of a certificate of title. 
With exceptions, this certificate is conclusive as to appli
cant's estate in land. System of registration of land title 
as distinguished from registration or recording of evi
dence of such title. The originator of the system was Sir 
Richard Torrens, 1814-1884, reformer of Australian 
Land Laws. 
Tort (from Lat. torquere, to twist, tortus, twisted, wrested 
aside). A private or civil wrong or injury, including 
action for bad faith breach of contract, for which the 
court will provide a remedy in the form of an action for 
damages. K Mart Corp. v. Ponsock, 103 Nev. 39, 732 
P.2d 1364, 1368. A violation of a duty imposed by 
general law or otherwise upon all persons occupying the 
relation to each other which is involved in a given 
transaction. Coleman v. California Yearly Meeting of 
Friends Church, 27 Cal.App.2d 579, 81 P.2d 469, 470. 
There must always be a violation of some duty owing to 
plaintiff, and generally such duty must arise by opera
tion of law and not by mere agreement of the parties. 
A legal wrong committed upon the person or property 
independent of contract. It may be either (1) a direct 
invasion of some legal right of the individual; (2) the 
infraction of some public duty by which special damage 
accrues to the individual; (3) the violation of some 
private obligation by which like damage accrues to the 
individual. 
See also Federal Tort Claims Act; Government tort; 
Husb and-wife tort actions; Joint tort-feasors; Liability; 
Negligence; Palsgraph doctrine; Parental liabili ty; Privi
lege; Privity; Privity of contract; Product liabili ty; Sover
eign immun ity; Strict liabiity; Warranty. 
Children. See Parental liability. 
TORTIOUS 
Constitutional tort. Federal statute providing that ev
ery person who under color of any statute, ordinance, 
regulation, custom, or usage, of any state or territory, 
sub jects, or causes to be sub jected, any citizen of the 
V nited States or any other person within the jurisdic
tion thereof to the deprivation of any rights, privileges, 
or immunities secured by the Constitution and laws, 
shall be liable to the party injured in an action at law, 
suit in equity, or other proper proceeding for redress. 
42 V.S.C.A. § 1983. See also Color of law. 
Intentional tort. Tort or wrong perpetrated by one who 
intends to do that which the law has declared wrong as 
contrasted with negligence in which the tortfeasor fails 
to exercise that degree of care in doing what is other
wise permissible. See also Willful tort. 
Maritime tort. See Jones Act; Longshore and Harbor 
Workers' Compensation Act; Maritime. 
Negligence. The tort or negligence consists of the exist
ence of a legal duty owed the plaintiff by the defendant, 
breach of the duty, proximate causal relationship be
tween the breach and plaintiffs injury, and damages. 
Stimson v. Michigan Bell Tel. Co., 77 Mich.App. 361, 258 
N.W.2d 227, 231. See also Negligence. 
Personal tort. One involving or consisting in an injury 
to the person or to the reputation or feelings, as distin
guished from an injury or damage to real or personal 
property, called a "property tort." Gray v. Blight, C.C. 
A.Colo., 112 F.2d 696, 699. 
Prenatal injuries. See Child; Unborn child; Viable child. 
Quasi tort. Though not a recognized term of English 
law, may be conveniently used in those cases where a 
man who has not committed a tort is liable as if he had. 
Thus a master is liable for wrongful acts done by his 
servant in the course of his employment. 
Strict tort liability. See Strict liability. 
Wilful tort. See Intentional tort, above; also Willful tort. 
Tort claims acts. See Federal Tort Claims Act; Sovereign 
immuni ty. 
Tort-feasor. A wrong-doer; an individual or business 
that commits or is guilty of a tort. See also Joint 
tort-feasors. 
Tortious It6rsh;)s/. Wrongful; of the nature of a tort. 
The word "tortious" is used throughout the Restate
ment, Second, Torts, to denote the fact that conduct 
whether of act or omission is of such a character as to 
sub ject the actor to liability, under the principles of the 
law of torts. (§ 6). To establish "tortious act" plaintiff 
must prove not only existence of actionable wrong, but 
also that damages resulted therefrom. James v. Public 
Finance Corp., 47 C.A.3d 995, 121 Cal.Rptr. 670, 675. As 
used in state long-arm statutes, such acts may afford a 
basis for jurisdiction over a nondomiciliary. E.g. N.Y. 
CPLR § 302(a)(2)(3). 
Formerly certain modes of conveyance (e.g., feoff
ments, fines, etc.) had the effect of passing not merely 
the estate of the person making the conveyance, but the 
whole fee-simple, to the injury of the person really

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TORTIOUS 
entitled to the fee; and they were hence called "tortious 
conveyances. " 
Tortura legum pessima /tort(y)ur:;) liyg:;)m pes:;)m:;)/. 
The torture or wresting of laws is the worst [kind of 
torture]. 
Torture. To inflict intense pain to body or mind for 
purposes of punishment, or to extract a confession or 
information, or for sadistic pleasure. Within meaning 
of statute allowing imposition of death sentence, occurs 
when the victim is subjected to serious physical abuse 
before his death. Hardy v. State, 247 Ga. 235, 275 
S.E.2d 319, 321. As element of first-degree murder by 
torture, consists of cold-blooded, calculated intent to 
inflict extreme and prolonged pain for the purposes of 
revenge, extortion, persuasion or for any sadistic pur
pose. People v. Talamantez, App. 4 Dist.1984, 169 
C.A.3d 443, 215 Cal.Rptr. 542. 
Tory. Originally applied to presbyterians in Scots Gael
ic. Then to a papist outlaw in Ireland who supported 
the hereditary right to the Crown of James despite his 
Catholic faith. After 1688 it was identified with those 
supporters of the interests of Anglicanism and the 
squirearchy, not the Whiggish landed aristocracy, and 
with the financially well-off middle classes. Used today 
derogatorily to refer to conservatives rather than Lab
our, the left and the Social Democrats. 
The name was also given, in America, during the 
struggle of the colonies for independence, to the party of 
those residents who favored the side of the British 
Crown and opposed independence. 
Tot. In old English practice, a word written by the 
foreign opposer or other officer opposite to a debt due 
the king, to denote that it was a good debt; which was 
hence said to be totted. 
Tota curia /t6wt:;) kyuriy:;)/. L. Lat. In the old reports, 
the whole court. 
Total. Whole, not divided, lacking no part, entire, full, 
complete, the whole amount. Utter, absolute. Glaze v. 
Hart, 225 Mo.App. 1205, 36 S.W.2d 684. 
Total disability. A person is "totally disabled" if his 
physical condition, in combination with his age, train
ing, and experience, and the type of work available in 
his community, causes him to be unable to secure any
thing more than sporadic employment resulting in an 
insubstantial income. Cavanaugh v. Frederick Willys, 
Inc., Minn., 361 N.W.2d 49, 50. Means loss of earning 
power as a worker, manifested either by inability to 
perform work obtainable or inability to secure work, and 
not absolute helplessness or entire physical disability. 
Clark v. Gilley, Ky., 311 S.W.2d 391, 392. 
With meaning of workers' compensation acts, means 
lack of ability to follow continuously some substantially 
gainful occupation without serious discomfort or pain 
and without material injury to health or danger to life. 
McKissick Products Corp. v. Gardner, Okl., 280 P.2d 718, 
720. See also Disability; Temporary total disabil ity. 
1490 
Total eviction. That which occurs when the possessor 
(i.e. tenant) is wholly deprived of his rights in the 
premises. 
Total Incapacity. See Total disability. 
Totality of circumstances test. Test used to determine 
the constitutionality of various search and seizure proce
dures, e.g. issuance of a search warrant, Illinois v. Gates, 
462 U.S. 213, 238, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 
527; investigative stops, U.S. v. Sokolow, 109 S.Ct. 1581, 
1585, 104 L.Ed.2d 1. This standard focuses on all the 
circumstances of a particular case, rather than any one 
factor. 
Total loss. Fire insurance. The complete destruction of 
the insured property by fire, so that nothing of value 
remains from it; as distinguished from a partial loss, 
where the property is damaged, but not entirely de
stroyed. Test whether building burned is "total loss" is 
whether substantial portion is left standing in condition 
reasonably suitable as basis on which to reconstruct 
building in like condition as to strength, security, and 
utility as it was before fire. Commerce Ins. Co. v. Sergi, 
Tex.Civ.App., 60 S.W.2d 1046. Total loss is such de
struction of a building as that, after the fire, there 
remains standing in place no substantial remnant there
of which a reasonably prudent owner, uninsured, desir
ing to restore the building to its original condition, 
would utilize as a basis of such restoration. Crutchfield 
v. St. Paul Fire & Marine Ins. Co., Tex.Civ.App., 306 
S.W.2d 948, 952. 
Actual total loss. The total loss of a vessel covered by a 
policy of insurance, by its real and substantive destruc
tion, by injuries which leave it no longer existing in 
specie, by its being reduced to a wreck irretrievably 
beyond repair, or by its being placed beyond the control 
of the insured and beyond his power of recovery. Distin
guished from a constructive total loss, which occurs 
where the vessel, though injured by the perils insured 
against, remains in specie and capable of repair or 
recovery, but at such an expense, or under such other 
conditions, that the insured may claim the whole 
amount of the policy upon abandoning the vessel to the 
underwriters. In such cases the insured is entitled to 
indemnity as for a total loss. 
Constructive total loss. See Actual total loss, above. 
Partial loss. Exists where an injury results to a vessel 
from a peril insured against, but where the loss is 
neither actually nor constructively total. See also Actu
al total loss, above. 
Totidem verbis /t6d:;)d:;)m v;)rb:;)s/. Lat. In so many 
words. 
Toties quoties /t6wshiy(iy)z kw6wshiy(iy)z/. Lat. As 
often as occasion shall arise. 
Totis viribus /t6wt:;)s vayr:;)b:;)s/. Lat. With all one's 
might or power; with all his might; very strenuously. 
Totted /t6t:;)d/. A good debt to the crown, i.e., a debt 
paid to the sheriff, to be by him paid over to the king. 
Totten trust. See Trust.

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Totum prrefertur unicuique parti Itowt�m pr�f�rt�r 
yUwn�k(yuw)aykwiy partay/. The whole is preferable 
to any single part. 
Touch. In marine insurance law, to stop at a port, 
usually for a brief period. 
. 
Touch and stay. In maritime law, words introduced in 
policies of insurance, giving the party insured the right 
to stop and stay at certain designated points in the 
course of the voyage. A vessel which has the power to 
touch and stay at a place in the course of the voyage 
must confine herself strictly to the terms of the liberty 
so given; for any attempt to trade at such a port during 
such a stay, as, by shipping or landing goods, will 
amount to a species of deviation which will discharge 
the underwriters, unless the ship have also liberty to 
trade as well as to touch and stay at such a place. 
Touching a dead body. It was an ancient superstition 
that the body of a murdered man would bleed freshly 
when touched by his murderer. Hence, in old criminal 
law, this was resorted to as a means of ascertaining the 
guilt or innocence of a person suspected of the murder. 
Toujours et uncore prist Ituwzhur ey onkor priy I. L. 
Fr. Always and still ready. This is the name of a plea 
of tender. 
Tour d'echelle Itur deshel/. In French law, an ease
ment consisting of the right to rest ladders upon the 
adjoining estate, when necessary in order to repair a 
party-wall or buildings supported by it. 
Also the vacant space surrounding a building left 
unoccupied in order to facilitate its reparation when 
necessary. 
Tourn Ityurn/. In old English law, a court of record, 
having criminal jurisdiction, in each county, held before 
the sheriff, twice a year, in one place after another, 
following a certain circuit or rotation. 
Tout Ituw/. Fr. All; whole; entirely. Tout temps 
prist, always ready. 
Tout ce que la loi ne defend pas est permis Ituw s(�) 
k� la lwa n� deyfon pa ey permiy I. Everything is 
permitted which is not forbidden by law. 
Toute exception non surveillee tend a prendre la 
place du principe Ituwt eksepsyown non s;}rveyey tond 
a prond la plas dyuw prrensiyp/. Every exception not 
watched tends to assume the place of the principle. 
Tout temps prist Ituw ton priy/. L. Fr. Always ready. 
The emphatic words of the old plea of tender; the 
defendant alleging that he has always been ready, and 
still is ready, to discharge the debt. 
Tout un sound Ituwt :m sawnd/. L. Fr. All one sound; 
sounding the same; idem sonans. 
Towage. The act or service of towing ships and vessels, 
usually by means of a small vessel called a "tug." Also, 
the charge for such service. 
Toward. In the direction of, or, on a course or line 
leading to. Coming soon; not long before. 
TOWN-REEVE 
To wit. That is to say; namely; scilicet; videlicet. 
Town . A community which is smaller and less orga
nized than a city; a small municipality. A civil and 
political division of a state, varying in extent and impor
tance, but usually one of the divisions of a county. In 
the New England states, the town is the political unit, 
and is a municipal corporation. In some other states, 
where the county is the unit, the town is merely one of 
its subdivisions, but possesses some powers of local self
government. In still other states, such subdivisions of a 
county are called "townships," and "town" is the name 
of a village, borough, or smaller city. The word "town" 
is quite commonly used as a generic term and as includ
ing both cities and villages. 
Town-clerk. In those states where the town is the unit 
for local self-government, the town-clerk is a principal 
officer who keeps the records, issues calls for town-meet
ings, and performs generally the duties of a secretary to 
the political organization. 
Town collector. One of the officers of a town charged 
with collecting the taxes assessed for town purposes. 
Town commissioner. In some of the states where the 
town is the political unit the town commissioners consti
tute a board of administrative officers charged with the 
general management of the town's business. 
Town-crier. An officer in a town whose business it is to 
make proclamations. 
Town-hall. The building maintained by a town for 
town-meetings and the offices of the municipal authori
ties. 
Town house. Type of dwelling unit normally having 
two, but sometimes three, stories; usually connected to 
a similar structure by a common wall, and commonly 
(particularly in planned unit developments) sharing and 
owning in common the surrounding grounds. 
Town-meeting. Under the municipal organization of 
the New England states, the town-meeting is a legal 
assembly of the qualified voters of a town, held at stated 
intervals or on call, for the purpose of electing town 
officers, and of discussing and deciding on questions 
relating to the public business, property, and expenses of 
the town. 
Town or city tax. Such tax as a town or city may levy 
for its peculiar expenses; as distinguished from a county 
or state tax; e.g., New York City tax. 
Town order or warrant. An official direction in writ
ing by the auditing officers of a town, directing the 
treasurer to pay a sum of money. 
Town pound. A place of confinement maintained by a 
town for estrays. 
Town purpose. When it is said that taxation by a town, 
or the expenditure of the town's money, must be for 
town purposes, it is meant that the purposes must be 
public with respect to the town; i.e., concern the welfare 
and advantage of the town as a whole. 
Town-reeve. The reeve or chief officer of a town.

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TOWNSHIP 
Township. Township, in government survey, is square 
tract six miles on each side containing thirty-six square 
miles of land. U. S. v. Weyerhaeuser Co., C.A.Or., 392 
F.2d 448, 449. In some of the states, this is the name 
given to the civil and political subdivisions of a county. 
Township trustee. One of a board of officers to whom, 
in some states, affairs of a township are intrusted. 
Townsite. Portion of public domain segregated by prop
er authority and procedure as site for a town. 
Town treasurer. The treasurer of a town which is an 
organized municipal corporation. 
Toxic It6ks;;!k/. (Lat. toxicum; Gr. toxikon.) Poisonous; 
having the character or producing the effects of a poi
son; . referable to a poison; produced by or resulting 
from a poison. 
Toxical. Poisonous; containing poison. 
Toxicant It6ks;;!k;;!ntl. A poison; a toxic agent; any 
substance capable of producing toxication or poisoning. 
Toxicate It6ks;;!keyt/. To poison. Not used to describe 
the act of one who administers a poison, but the action 
of the drug or poison itself. 
Auto-int oxication. Self-empoisonment from the absorp
tion of the toxic products of internal metabolism, e.g., 
ptomaine poisoning. 
Intoxication. The state of being poisoned; the condition 
produced by the administration or introduction into the 
human system of a poison. This term is properly used 
as equivalent to "drunkenness," which, however, is more 
accurately described as "alcoholic intoxication." See 
also Intoxication. 
Toxicology. The science of poisons; that department of 
medical science which treats of poisons, their effect, 
their recognition, their antidotes, and generally of the 
diagnosis and therapeutics of poisoning. 
Toxic waste. Hazardous, poisonous substances such as 
PCB's, and DDT. Several federal laws regulate the use, 
transportation, and disposal of toxic material; e.g., The 
Resource Conservation and Recovery Act of 1976, 42 
U.S.C.A. §§ 6901-6987, The Toxic Substances Control 
Act of 1976, 15 U.S.C.A. §§ 2601-2629, amended by 15 
U.S.C.A. §§ 2642-2654, the Comprehensive Environmen
tal Response Compensation and Liability Act of 1980 
(CERCLA), 42 U.S.C.A. §§ 9601-9657. Most states also 
have similar laws regulating the handling and disposing 
of toxic wastes. See also Superfu nd. 
Toxin. In its widest sense, this term may denote any 
poison or toxicant; but as used in pathology and medical 
jurisprudence it signifies, in general, any diffusible alka
loidal substance (as, the ptomaines, abrin, brucin, or 
serpent venoms), and in particular the poisonous prod
ucts of pathogenic (disease-producing) bacteria. 
Tracea Itreysh(iy);;!/. In old English law, the track or 
trace of a felon, by which he was pursued with the hue 
and cry; a foot-step, hoof-print, or wheel-track. 
Tracing. A tracing is a mechanical copy or facsimile of 
an original, produced by following its lines, with a pen 
1492 
or pencil, through a transparent medium, called tracing 
paper. See also Skiptracing. 
Tract of land. A lot, piece or parcel of land, of greater 
or less size, the term not importing, in itself, any precise 
dimension, though term generally refers to a large piece 
of land. Holt v. Wichita County Water Improvement 
Dist. No. 2, Tex.Civ.App., 48 S.W.2d 527, 529. Term is 
synonymous with parcel of land and does not have 
reference to size but to contiguous quantity of land. 
Floral Hills Memory Gardens, Inc. v. Robb, 227 Ga. 470, 
181 S.E.2d 373, 374. 
Tract index. A page or set of pages in an index book 
devoted to listing all documents which affect a particu
lar tract of land. 
Tradas in ballium Itreyd;;!s in breliy;;!m/. You deliver to 
bail. In old English practice, the name of a writ which 
might be issued in behalf of a party who, upon the writ 
de odio et atia, had been found to have been maliciously 
accused of a crime, commanding the sheriff that, if the 
prisoner found twelve good and lawful men of the coun
ty who would be mainpernors for him, he should deliver 
him in bail to those twelve, until the next assize. 
Trade. The act or the business of buying and selling for 
money; traffic; barter. May v. Sloan, 101 U.S. 231, 25 
L.Ed. 797. Purchase and sale of goods and services 
between businesses, states or nations. Trade is not a 
technical word and is ordinarily used in three senses: (1) 
in that of exchanging goods or commodities by barter or 
by buying and selling for money; (2) in that of a busi
ness occupation generally; (3) in that of a mechanical 
employment, in contradistinction to the learned profes
sions, agriculture, or the liberal arts. People v. Polar 
Vent of America, Inc., 10 Misc.2d 378, 174 N.Y.S.2d 789, 
793. 
An occupation or regular means of livelihood and is 
business one practices or the work in which one engages 
regularly. One's calling; occupation; gainful employ
ment; means of livelihood. People v. Carr, 163 Cal. 
App.2d 568, 329 P.2d 746, 752. See also Trade or busi
ness. 
Transaction involving purchase and sale of stocks, 
bonds, or other securities. 
See also Balance (Balance of trade); Commerce; Trade 
and commerce; Trade or business. 
Trade acceptance. A draft or bill of exchange drawn by 
the seller on the purchaser of goods sold, and accepted 
by such purchaser, and its purpose is to make the book 
account liquid, and permit the seller to raise money on 
it before it is due under the terms of the sale, and its 
principal function is to take the place of selling goods on 
an open account and when properly drawn, it is nego
tiable. Gilliland & Echols Farm Supply & Hatchery v. 
Credit Equipment Corp., 269 Ala. 190, 11 2 So.2d 331, 
332. 
A draft drawn by a seller which is presented for 
signature (acceptance) to the buyer at the time goods are 
purchased and which then becomes the equivalent of a

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1493 
note receivable of the seller and the note payable of the 
buyer. 
A bill of exchange or draft drawn by the seller of 
goods on the purchaser and accepted by such purchaser. 
Once accepted, the purchaser becomes primarily liable 
to pay the draft. See U.C.C. § 3- 413(1). 
Trade agreement. Agreement between two countries or 
among many nations concerning buying and selling of 
each country's goods. See also Collective bargaining 
agreement; GAIT; Most favored nation clause; Recipro
cal trade agreements. 
Trade and commerce. The words "trade" and "com
merce," when used in juxtaposition impart to each other 
enlarged signification, so as to include practically every 
business occupation carried on for subsistence or profit 
and into which the elements of bargain and sale, barter, 
exchange, or traffic, enter. See Commerce. 
Trade association. An association of business organiza
tions having similar problems and engaged in similar 
fields formed for mutual protection, interchange of ideas 
and statistics and for maintenance of standards within 
their industry. 
Trade commission. See Federal Trade Commission. 
Trade deficit or surplus. Excess of nations imports 
over exports (trade deficit) or exports over imports (trade 
surplus). Such determines a nation's balance of trade 
(positive or negative). See Balance (Balance of trade). 
Trade discount. A discount from list price offered to all 
customers of a given type; e.g. discount offered by lum
ber dealer to building contractor. Difference between 
seller's list price and the price at which he actually sells 
goods to the trade. State v. Eau Claire Oil Co., 35 
Wis.2d 724, 151 N.W.2d 634, 642. Contrast with a 
discount offered for prompt payment and quantity dis
count. 
Trade dispute. Within Unemployment Insurance Act 
barring benefit payments to persons who leave work 
because of trade dispute, the term includes controversy 
over working conditions, American-Hawaiian S. S. Co. v. 
California Employment Commission, 24 Cal.2d 716, 151 
P.2d 213, 215; and, unwillingness to cross picket lines, 
Mattson Terminals v. California Employment Commis
sion, 24 Cal.2d 695, 151 P.2d 202, 206. See Unfair labor 
practice. 
Trade dollar. A silver coin of the United States, of the 
weight of four hundred and twenty grains, troy. 
Trade dress. The total appearance and image of a 
product, including features such as size, texture, shape, 
color or color combinations, graphics, and even particu
lar advertising and marketing techniques used to pro
mote its sale. John H. Harland Co. v. Clarke Checks, 
Inc., C.A.Ga., 711 F.2d 966, 980. Duplication of the 
trade dress of another's goods is actionable as passing off 
at common law and under Trademark Act. 15 U.S.C.A. 
§ 112 5(a). Commercial prints and labels constituting 
key elements of trade dress may be protectible under 
the copyright laws as well. 
TRADEMARK 
Trade fixtures. Personal property used by tenants in 
carrying on business. Such fixtures retain the charac
ter of personal property; e.g. shelves used to display 
merchandise. See also Fixture. 
Trade libel. Intentional disparagement of quality of 
property, which results in pecuniary damage to plaintiff. 
Erlich v. Etner, 224 C.A.2d 69, 36 Cal.Rptr. 256, 258. 
The distinction between "libel" and "trade libel" is that 
the former concerns the person or reputation of plaintiff 
and the latter relates to his goods. Shores v. Chip Steak 
Co., 130 C.A.2d 627, 279 P.2d 595, 597. 
Trademark. Generally speaking, a distinctive mark of 
authenticity, through which the products of particular 
manufacturers or the vendible commodities of particular 
merchants may be distinguished from those of others. 
It may consist in any symbol or in any form of words, 
but, as its office is to point out distinctively the origin or 
ownership of the articles to which it is affixed, it follows 
that no sign or form of words can be appropriated as a 
valid trademark which, from the nature of the fact 
conveyed by its primary meaning, others may employ 
with equal truth and with equal right for the same 
purpose. Koppers Co., Inc. v. Krupp-Koppers, D.C.Pa., 
517 F.Supp. 836, 840. 
A distinctive mark, motto, device, or emblem, which a 
manufacturer stamps, prints, or otherwise affixes to the 
goods he produces, so that they may be identified in the 
market, and their origin be vouched for. Trade-Mark 
Cases, 100 U.S. 82, 87, 25 L.Ed. 550. Exclusive rights to 
use a trademark are granted by the federal government 
for ten years, with the possibility of additional ten year 
renewal periods. 15 U.S.C.A. §§ 1058, 1059. 
The term "trademark" includes any word, name, sym
bol, or device, or any combination thereof-(l) used by a 
person, or (2) which a person has a bona fide intention to 
use in commerce and applies to register on the principal 
register established by the Trademark Act, to identify 
and distinguish his or her goods, including a unique 
product, from those manufactured or sold by others and 
to indicate the source of the goods, even if that source is 
unknown. 15 U.S.C.A. § 11 27. 
See also Certification mark; Collec tive mark; Common 
descriptive name; Descriptive mark; Distinctiveness; 
Functionality; Infringement; Likelihood of confusion; Offi
cial Gazette; Patent and Trademark Office; Related 
goods; Secondary meaning; Service mark; Trade dress; 
Trade name; Use in commerce. 
Descriptive and suggestive trademarks. Distinction be
tween descriptive and suggestive trademarks is that 
"suggestive" terms are those which require the buyer to 
use thought, imagination, or perception to connect the 
mark with the goods, while "descriptive" terms are 
those which directly convey to the buyer the ingredients, 
qualities, or characteristics of the product. Educational 
Development Corp. v. Economy Co., C.A.Okl., 562 F.2d 
26, 29. 
Fanciful mark. A trademark consisting of a made-up or 
coined word is said to be "fanciful." Such marks are 
considered inherently distinctive, and thus are protected

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TRADEMARK 
at common law, and are eligible for Trademark Act 
registration, from the time of first use. 
Geographically descriptive mark. A geographic word 
used as a trademark that indicates where the goods are 
grown or manufactured is considered geographically de
scriptive. Such marks will only be protected at common 
law and registered under the Trademark Act upon proof 
of secondary meaning. See Secondary meaning. 
Strong trademark. For purposes of determining the 
likelihood of confusion between marks, is a mark which 
is generally fictitious, arbitrary or fanciful and is inher
ently distinctive. A strong mark is entitled to a greater 
degree of protection from infringing uses than is a weak 
one, because of its unique usage. Alpha Industries, Inc. 
v. Alpha Steel Tube & Shapes, Inc., C.A.Cal., 616 F.2d 
440, 445. Compare Weak trademark, below. 
Suggestive mark or term. One that suggests, rather 
than describes, some particular characteristic of goods 
and services to which it applies and requires consumer 
to exercise imagination in order to draw conclusion as to 
nature of goods or services. Engineered Mechanical 
Services, Inc. v. Applied Mechanical Technology, Inc., 
D.C.La., 584 F.Supp. 1149, 1156. 
Trade name distinguished. A "trade name" is a descrip
tive of a manufacturer or dealer and applies to business 
and its goodwill, whereas "trademark" is applicable only 
to vendable commodities. American Steel Foundries v. 
Robertson, 269 U.S. 372, 46 S.Ct. 160, 162, 70 L.Ed. 317. 
Corporate or business name symbolizing the reputation 
of a business as a whole, whereas a "trademark" is a 
term identifying and distinguishing a business' products. 
American Optical Corp. v. North American Optical 
Corp., D.C.N.Y., 489 F.Supp. 443, 447. See Tradename. 
Weak trademark. A mark that is a meaningful word in 
common usage or is merely a suggestive or descriptive 
trademark, and is entitled to protection only if it has 
acquired a secondary meaning. See also Secondary 
meaning. Compare Strong trademark, above. 
Trade name. That name which is used by manufactur
ers, industrialists and merchants to identify their busi
nesses, which actually symbolizes reputation of business. 
Frances Denney, Inc. v. New Process Co., W.D.Va., 670 
F.Supp. 661, 667. The name or title lawfully adopted 
and used by a particular organization engaged in com
merce, which can be used in advertising, promotion, and 
to generate publicity for the business. Caesars World, 
Inc. v. Caesar's Palace, D.C.N.J., 490 F.Supp. 818, 822. 
The terms "trade name" and "commercial name" in
clude individual names and surnames, firm names and 
trade names used by manufacturers, industrialists, mer
chants, agriculturists, and others to identify their busi
nesses, vocations, or occupations; the names or titles 
lawfully adopted and used by persons, firms, associa
tions, corporations, companies, unions, and any manu
facturing, industrial, commercial, agricultural, or other 
organizations engaged in trade or commerce and capable 
of suing and being sued in a court of law. 15 U.S.C.A. 
§ 11 27. 
1494 
See also Certification mark; Collective mark. Compare 
Service mark; Trademark. 
Trade or business. Any business or professional activi
ty conducted by a taxpayer, the objective of which is to 
earn a profit. General test for determining whether 
person is engaged in "trade or business" so as to be 
entitled to deduct expenses as trade or business ex
penses under Internal Revenue Code is whether taxpay
er's primary purpose and intention in engaging in the 
activity is to make a profit. Zell v. C.I.R., C.A. 10, 763 
F.2d 1139, 1142. 
Trader. A merchant; a retailer. One who makes it his 
business to buy merchandise, goods, or chattels to sell 
the same at a profit. People v. Terkanian, 27 Cal. 
App.2d 460, 81 P.2d 251, 253. One who sells goods 
substantially in the form in which they are bought; one 
who has not converted them into another form of prop
erty by his skill and labor. Albuquerque Lumber Co. v. 
Bureau of Revenue of New Mexico, 42 N.M. 58, 75 P.2d 
334, 336. See also Dealer; Merchant. 
In securities, one who as a member of a stock ex
change buys and sells on the floor of the exchange either 
for brokers or on his own account. Likewise, in com
modity market, one who buys and sells commodities (e.g. 
grain) and commodity futures for others and for his own 
account in anticipation of a speculative profit. See also 
Broker; Dealer. 
Trade secret. A "trade secret," as protected from mis
appropriation, may consist of any formula, pattern, de
vice of compilation of information which is used in one's 
business, and which gives person an opportunity to 
obtain an advantage over competitors who do not know 
or use it; or, it may be a formula or a chemical com
pound, a process of manufacturing, treating or preserv
ing materials, a pattern for a machine or other device, 
or a list of customers. Cherne Indus., Inc. v. Grounds & 
Associates, Inc., Minn., 278 N.W.2d 81, 89, 90; Kodekey 
Electronics, Inc. v. Mechanex Corp. C.A.Colo., 486 F.2d 
449, 455. 
A plan or process, tool, mechanism, or compound 
known only to its owner and those of his employees to 
whom it is necessary to confide it. A secret formula or 
process not patented, but known only to certain individ
uals using it in compounding some article of trade 
having a commercial value. Palin Mfg. Co., Inc. v. 
Water Technology, Inc., 103 Ill.App.3d 926, 59 Ill.Dec. 
553, 431 N.E.2d 1310, 1314. 
Tradesman. A mechanic, craftsman, or artificer of any 
kind, whose livelihood depends primarily on the labor of 
his hands. 
Trade-union. A combination of workers of the same 
trade or of several allied trades, for the purpose of 
securing by united action the most favorable conditions 
regarding wages, hours of labor, etc., for its members. 
See also Union.

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Trade usage. The usage or customs commonly observed 
by persons conversant in, or connected with, a particular 
trade. 
A usage of trade is any practice or method of dealing 
having such regularity of observance in a place, vocation 
or trade as to justify an expectation that it will be 
observed with respect to the transaction in question. 
The existence and scope of such a usage are to be proved 
as facts. If it is established that such a usage is embod
ied in a written trade code or similar writing the inter
pretation of the writing is for the court. U.C.C. 
§ 1-205(2). Compare Course of dealing. See also Usage 
(Usage of trade). 
Tradicion Itraoiysyown/. Span. In Spanish law, deliv
ery. 
Trading. Engaging in trade (q.v.); pursuing the business 
or occupation of trade or of a trader. 
Trading corporation. See Corporation. 
Trading partnership. A firm the nature of whose busi
ness, according to the usual modes of conducting it, 
imports the necessity of buying and selling. Dowling v. 
National Exch. Bank, 145 U.S. 512, 12 S.Ct. 928, 36 
L.Ed. 795. 
Trading stamps. The name for a method of conducting 
some kinds of retail business which consists of an agree
ment between a number of merchants and a corporation 
that the latter shall print the names of the former in its 
subscribers' dictionary and circulate a number of copies 
of the book, and that the merchants shall purchase of 
the corporation a number of so-called trading stamps, to 
be given to purchasers with their purchases, and by 
them preserved and pasted in the books aforesaid until a 
certain number have been secured, when they shall be 
presented to the corporation in exchange for the choice 
of certain articles kept in stock by the corporation. 
Trading voyage. One which contemplates the touching 
and stopping of the vessel at various ports for the 
purpose of traffic or sale and purchase or exchange of 
commodities on account of the owners and shippers, 
rather than the transportation of cargo between termi
nal points, which is called a "freighting voyage." 
Trading with the enemy. Offense of carrying on com
merce with a country or with a subject of a nation with 
whom the U.S. is at war. Federal laws prohibit com
mercial intercourse with nations and with subjects and 
allies of nations with whom the U.S. is at war. 50 
U.S.C.A. App. § 1 et seq. 
Traditio Itr�dish(iy)ow/. Lat. In the civil law, delivery; 
transfer of possession; a derivative mode of acquiring, 
by which the owner of a corporeal thing, having the 
right and the will of aliening it, transfers it for a lawful 
consideration to the receiver. 
Quasi traditio. A supposed or implied delivery of prop
erty from one to another. Thus, if the purchaser of an 
article was already in possession of it before the sale, his 
continuing in possession is considered as equivalent to a 
fresh delivery of it, delivery being one of the necessary 
TRAFFIC REGULATIONS 
elements of a sale; in other words, a quasi traditio is 
predicated. 
Traditio brevi manu. A species of constructive or im
plied delivery. When he who already holds possession 
of a thing in another's name agrees with that other that 
thenceforth he shall possess it in his own name, in this 
case a delivery and redelivery are not necessary. 
Traditio clavium. Delivery of keys; a symbolical kind 
of delivery, by which the ownership of merchandise in a 
warehouse might be transferred to a buyer. 
Traditio Zonga manu. A species of delivery which takes 
place where the transferor places the article in the 
hands of the transferee, or, on his order, delivers it at 
his house. 
Traditio rei. Delivery of the thing. 
Traditio loqui facit chartam Itr�dish(iy)ow lowkway 
feys�t kart�m/. Delivery makes a deed speak. Delivery 
gives effect to the words of a deed. 
Tradition. Delivery. A close translation or formation 
from the Latin "traditio." 2 Bl.Comm. 307. 
Past customs and usages which influence or govern 
present acts or practices. 
Traditionary evidence. Evidence derived from tradi
tion or reputation or the statements formerly made by 
persons since deceased, in regard to questions of pedi
gree, ancient boundaries, and the like, where no living 
witnesses can be produced having knowledge of the 
facts. 
Traditio nihil amplius transferre debet vel potest, ad 
eum qui accipit, quam est apud eum qui tradit 
Itr�dish(iy)ow nay(h)�l rempliy�s trrensf�riy deb�t vel 
powt�st, red iy�m kway reks�p�t, kwrem est rep�d iy�m 
kway treyd�t1. Delivery ought to, and can, transfer 
nothing more to him who receives than is with him who 
delivers. 
Traditor Itrred�t�r/treyO I. In old English law, a traitor; 
one guilty of high treason. 
Traditur in ballium Itrred�t�r in breliy�m/. In old prac
tice, means delivered to bail. Emphatic words of the old 
Latin bail-piece. 
Traffic. Commerce; trade; sale or exchange of mer
chandise, bills, money, and the like. The passing or 
exchange of goods or commodities from one person to 
another for an equivalent in goods or money. The 
subjects of transportation on a route, as persons or 
goods; the passing to and fro of persons, animals, ve
hicles, or vessels, along a route of transportation, as 
along a street, highway, etc. See Commerce. 
Traffic balances. Balances of moneys collected in pay
ment for the transportation of passengers and freight. 
Trafficking. Trading or dealing in certain goods and 
commonly used in connection with illegal narcotic sales. 
Traffic regulations. Prescribed rules of conduct to pro
mote the orderly and safe flow of traffic.

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TRAHENS 
Trahens Itrey(h)enz/. Lat. In French law, the drawer 
of a bill. 
Trail-baston. Justices of trail-baston were justices ap
pointed by King Edward I, during his absence in the 
Scotch and French wars, about the year 1305. They 
were so styled, says Hollingshed, for trailing or drawing 
the staff of justice. Their office was to make inquisition, 
throughout the kingdom, of all officers and others, 
touching extortion, bribery, and such like grievances, of 
intruders into other men's lands, barrators, robbers, 
breakers of the peace, and divers other offenders. 
Trainbands. The militia; the part of a community 
trained to martial exercises. 
Traitor. One who, being trusted, betrays; one guilty of 
treason (q.v.). 
Traitorously Itreyt�r�sliy/. In criminal pleading at 
common law, an essential word in indictments for trea
son. The offense must be laid to have been committed 
traitorously. 
Trajectitia pecunia Itrrejektish(iy)� p�kyuwn(i)y�/. A 
loan to a shipper to be repaid only in case of a successful 
voyage. The lender could charge an extraordinary rate 
of interest, nauticum frenus. 
Trajectitius Itrrejektish(iy)�s/. Lat. In the civil law, 
sent across the sea. 
Tramp. One who roams about from place to place, 
begging or living without labor or visible means of 
support; a vagrant. 
Tramp steamer. A ship which is not governed by any 
pre-arranged ports of call but which stops at those ports 
for which it has cargo. 
Transact. To undertake negotiations; to carry on busi
ness; to have dealings; to carry through; bring about; 
perform; to carry on or conduct; to pass back and forth 
as in negotiations or trade; to bring into actuality or 
existence. Knoepfle v. Suko, N.D., 108 N.W.2d 456, 462. 
The word embraces in its meaning the carrying on or 
prosecution of business negotiations, but it is a broader 
term than the word "contract" and may involve business 
negotiations which have been either wholly or partly 
brought to a conclusion. Bozied v. Edgerton, 239 Minn. 
227, 58 N.W.2d 313, 316. See also Negotiate; Transac
tion. 
Transacting business. Term as used in statute provid
ing that no foreign corporation transacting business in 
State without a certificate of authority shall maintain 
an action in State if it has not obtained a certificate of 
authority, is not susceptible of precise definition auto
matically resolving every case; each case must be dealt 
with on its own circumstances to determine if foreign 
corporation has engaged in local activity or only in 
interstate commerce. Materials Research Corp. v. Me
tron, Inc., 64 N.J. 74, 312 A.2d 147, 150. 
Test of whether or not a corporation is transacting 
business, in a district, for purpose of section of the 
Clayton Act providing that an action may be brought 
against a corporation in any district wherein it transacts 
1496 
business, is the practical everyday business or commer
cial concept of doing business of any substantial charac
ter. Interstate Cigar Co. v. Corral Wodis
ka y Ca, D.C.N.Y., 30 F.R.D. 354, 355; Kolb v. Chrysler 
Corp., D.C.Wis., 357 F.Supp. 504, 508. 
See also Doing business; Minimum contacts. 
"Doing business" distinguished. The concept of "trans
acting business" under venue provisions of Investment 
Company Act of 1940, Securities Act of 1933, and Securi
ties Exchange Act of 1934, requires less business activity 
than that necessary to sustain jurisdiction under a "do
ing business" or "minimum contacts" standard, and is 
intended to have a more flexible and broader meaning 
than the jurisdictional predicates. Zorn v. Anderson, 
D.C.N.Y., 263 F.Supp. 745, 747. 
Transactio Itrrenzreksh(iy)ow/. Lat. In the civil law, 
the settlement of a suit or matter in controversy, by the 
litigating parties, between themselves, without referring 
it to arbitration. An agreement by which a suit, either 
pending or about to be commenced, was forborne or 
discontinued on certain terms. 
Transaction. Act of transacting or conducting any busi
ness; between two or more persons; negotiation; that 
which is done; an affair. An act, agreement, or several 
acts or agreements between or among parties whereby a 
cause of action or alteration of legal rights occur. Miles 
v. Starks, Tex.Civ.App., 590 S.W.2d 223, 227. It may 
involve selling, leasing, borrowing, mortgaging or lend
ing. Something which has taken place, whereby a cause 
of action has arisen. It must therefore consist of an act 
or agreement, or several acts or agreements having 
some connection with each other, in which more than 
one person is concerned, and by which the legal rela
tions of such persons between themselves are altered. It 
is a broader term than "contrac t". Hoffman Machinery 
Corporation v. Ebenstein, 150 Kan. 790, 96 P.2d 661, 
663. See also Closed transaction; Trade; Transact. 
Evidence. A "transaction" between a witness and a 
decedent, within statutory provisions excluding evidence 
of such transactions, embraces every variety of affairs 
which can form the subject of negotiations, interviews, 
or actions between two persons, and includes every 
method by which one person can derive impressions or 
information from the conduct, condition, or language of 
another. An action participated in by witness and dece
dent and to which decedent could testify of his own 
personal knowledge, if alive. Nelson v. Janssen, 144 
Neb. 811, 14 N.W.2d 662, 665. A personal or mutual 
transaction wherein deceased and witness actively par
ticipate. 
Transactional immunity. See Immunity (Immunity from 
prosecution). 
Transaction or occurrence test. Fed.R.Civil P. 13(a) 
provides that a claim qualifies as a compulsory counter
claim if it arises out of the "transaction or occurrence" 
that is the subject matter of the opposing party's claim. 
Courts generally have agreed that these words should be 
interpreted liberally in order to further the general 
policies of the federal rules which are to avoid multiple

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1497 
suits and to encourage the determination of the entire 
controversy among the parties. Thus, the "transaction" 
test does not require the court to differentiate between 
opposing legal and equitable claims or between claims in 
tort and those in contract. Most courts, rather than 
attempting to define the key terms of Rule 13(a) precise
ly, have preferred to suggest standards by which the 
compulsory or permissive nature of specific counter
claims can be determined. Four tests have been sug
gested: (1) Are the issues of fact and law raised by the 
claim and counterclaim largely the same? (2) Would res 
judicata bar a subsequent suit on defendant's claim 
absent the compulsory counterclaim rule? (3) Will sub
stantially the same evidence support or refute plaintiffs 
claim as well as defendant's counterclaim? (4) Is there 
any logical relation between the claim and the counter
claim? Old Homestead Co. v. Continental Baking Co., 
47 F.R.D. 560, 563. See Counterclaim (Compulsory coun
terclaim). 
Cross-claims. Most courts have held that the above 
standards used for dealing with the "transaction or 
occurrence" test for compulsory counterclaims also ap
ply to cross-claims under Fed.R.Civil P. 13(g). Old 
Homestead Co. v. Continental Baking Co., 47 F.R.D. 560, 
563. See Cross-claim. 
Transazione Itran(d)zlitsiy6wney/. An Italian term 
which technically refers to an instrument whereby par
ties agree to put an end to a dispute by means of mutual 
concessions and is the equivalent of "transactio" under 
the Roman law, the principles of which have been car
ried into the common law and are found in agreements 
of accord and satisfaction and compromise and settle
ment. 
Transcript. That which has been transcribed. A copy 
of any kind, though commonly the term refers to a copy 
of the record of a trial, hearing or other proceeding as 
prepared by a court reporter. A writing made from or 
after an original. A copy of an original writing or deed 
and suggests the idea of an original writing. O'Quinn v. 
Tate, Tex.Civ.App., 187 S.W.2d 241, 243. 
An official copy of the record of proceedings in a trial 
or hearing. Word-for-word typing of everything that 
was said "on the record" during the trial. The stenogra
pher (court reporter) types this transcription which is 
paid for by the parties requesting it. 
Transcript of record. Refers to the printed record as 
made up in each case of the proceedings and pleadings 
necessary for the appellate court to review the history of 
the case. 
Transcriptio pedis finis levati mittendo in cancellari
um Itrrenskripsh(iy)ow piyd;}s fayn;}s l;}veytay m;}ten
dow in krens;}leriy;}m/. A writ which certified the foot 
of a fine levied before justices in eyre, etc., into the 
chancery. 
Transcriptio recognitionis factre coram justiciariis 
itinerantibus, etc. Itrrenskripsh(iy)ow rek;}gni
shiy6wn;}s frektiy k6r;}m j;}stishiyeriy;}s aytin;}rren
t;}b;}s/. An old writ to certify a cognizance taken by 
justices in eyre. 
TRANSFEREE LIABILITY 
Transfer, v. To convey or remove from one place, per
son, etc., to another; pass or hand over from one to 
another; specifically, to change over the possession or 
control of (as, to transfer a title to land). To sell or give. 
Chappell v. State, 216 Ind. 666, 25 N.E.2d 999, 1001. 
Transfer, n. An act of the parties, or of the law, by 
which the title to property is conveyed from one person 
to another. The sale and every other method, direct or 
indirect, of disposing of or parting with property or with 
an interest therein, or with the possession thereof, or of 
fixing a lien upon property or upon an interest therein, 
absolutely or conditionally, voluntarily or involuntarily, 
by or without judicial proceedings, as a conveyance, sale, 
payment, pledge, mortgage, lien, encumbrance, gift, se
curity or otherwise. The word is one of general mean
ing and may include the act of giving property by will. 
Hayter v. Fern Lake Fishing Club, Tex.Civ.App., 318 
S.W.2d 912, 915. 
The assignment or conveyance of property, including 
an instrument or document, that vests in the transferee 
such rights as the transferor had therein. See U.C.C. 
§§ 3-201(1) & 7-504(1). Transfer is the all-encompass
ing term used by the Uniform Commercial Code to 
describe the act which passes an interest in an instru
ment to another. Scheid v. Shields, 269 Or. 236, 524 
P.2d 1209, 1210. 
Transfer means every mode, direct or indirect, abso
lute or conditional, voluntary or involuntary, of dispos
ing of or parting with property or with an interest in 
property, including retention of title as a security inter
est and foreclosure of the debtor's equity of redemption. 
Bankruptcy Code § 10l. 
See Barter; Constructive transfer; Exchange; Gift; Sale; 
Will. 
Transferable. A term used in a quasi legal sense, to 
indicate that the character of assignability or negotiabil
ity attaches to the particular instrument, or that it may 
pass from hand to hand, carrying all rights of the 
original holder. The words "not transferable" are some
times printed upon a ticket, receipt, or bill of lading, to 
show that the same will not be good in the hands of any 
person other than the one to whom first issued. 
Transfer agent. An organization, usually a bank, that 
handles transfers of shares for a publicly held corpora
tion. Generally, a transfer agent assures that certifi
cates submitted for transfer are properly endorsed and 
that there is appropriate documentation of the right to 
transfer. The transfer agent issues new certificates and 
oversees the cancellation of the old ones. Transfer 
agents also usually maintain the record of shareholders 
for the corporation and mail dividend checks. 
Transferee. He to whom a transfer is made. 
Transferee liability. Under certain conditions, if the 
Internal Revenue Service is unable to collect taxes owed 
by a transferor of property, it may pursue its claim 
against the transferee of such property. The trans
feree's liability for taxes is limited to the extent of the 
value of the assets transferred. For example, the Inter
nal Revenue Service can force a donee to pay the gift tax

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TRANSFEREE LIABILITY 
when such tax cannot be paid by the donor making the 
transfer. I.R.C. §§ 6901-6905. 
Transfer in contemplation of death. A transfer made 
under a present apprehension on the part of the trans
feror, from some existing bodily or mental condition or 
impending peril, creating a reasonable fear that death is 
near at hand. See Contemplation of death. 
Transfer of a cause. The removal of a case from the 
jurisdiction of one court or judge to another by lawful 
authority. 28 U.S.C.A. §§ 1404(a), 1406(a), 1631. See 
Forum non conveniens; Removal of causes. 
Transferor. One who makes a transfer. 
Transfer payments. Payments made by the govern
ment to individuals for which no services are concur
rently rendered in return. A transfer payment might 
be a Social Security check or an unemployment check. 
Transferred intent doctrine. If an illegal yet unintend
ed act results from the intent to commit a crime, that 
act is also considered illegal. Under doctrine of "trans
ferred intent," original malice is transferred from one 
against whom it was entertained to person who actually 
suffers consequence of unlawful act. Provenzano v. 
State, Fla., 497 So.2d 11 77, 11 81. For example, if a 
person intentionally directs force against one person 
wrongfully but, instead, hits another, his intent is said 
to be transferred from one to the other and he is liable 
to the other though he did not intend it in the first 
instance. See also Intent (Transferred intent). 
Transfers to Minors Act. The Uniform Transfers to 
Minors Act (UTMA) revises and replaces the Uniform 
Gifts to Minors Act (UGMA). As expanded, the Act 
allows the transfer of any type of property, real or 
personal, tangible or intangible, and wheresoever locat
ed (within or without the state) to a custodianship. In 
addition, the UTMA permits (in addition to outright 
lifetime gifts) transfers from trusts, estates, and guardi
anships even if the trust, will, etc., instrument does not 
expressly permit such transfers. Transfers from per
sons indebted to the minor also may be made to the 
custodianship if the minor does not have a conservator. 
The UTMA also permits the legal representative of the 
minor to transfer other property of the minor to the 
custodianship for the purpose of convenience or econo
my. 
Many states have repealed the former UGMA and 
substituted this new UTMA. See also Gifts (or Transfers) 
to Minors Act. 
Transfer tax. A tax upon the passing of the title to 
property or a valuable interest therein out of or from 
the estate of a decedent, by inheritance, devise, or be
quest. See Estate tax; In heritance tax; Unified transfer 
tax. 
Tax on the transfer of property, particularly of an 
incorporeal nature, such as bonds or shares of stock, 
between living persons. A tax imposed by New York 
State when a security is sold or transferred from one 
person to another. Also, a tax imposed by states on 
1498 
each deed conveying real estate. The tax is paid by the 
seller. See also Revenue stamps. 
Transfer ticket. An undertaking on the part of a com
mon carrier to continue the carriage further without 
additional charge if the passenger, in accordance with 
its terms, again presents himself at the proper place for 
carriage. It generally designates the point at which the 
journey is to be renewed, but contains no contract, 
express or implied, for safety in making the transfer. 
Anton v. St. Louis Public Service Co., 335 Mo. 188, 71 
S.W.2d 702, 706. 
Transferuntur dominia sine titulo et traditione, per 
usucaptionem, scil, per longam continuam et pacifi
cam possessionem Itrrensf:m�nt:lr d:lmin(i)Y:l sayniy 
tit(y):llow et tr:ldishiyowniy, p;}r yUwzyuwkrepshiyow
n:lm, sil:ls:lt, p;}r IOIJg:lm k:mtinyuw:lm et p:}sif:lk:}m 
p:lzeshiyown:lm/. Rights of dominion are transferred 
without title or delivery, by usucaption, to-wit, long and 
quiet possession. 
Transfretatio Itrrenzfr:}teysh(iy)ow/. Lat. In old Eng
lish law, a crossing of the strait [of Dover]; a passing or 
sailing over from England to France. The royal pas
sages or voyages to Gascony, Brittany, and other parts of 
France were so called, and time was sometimes comput
ed from them. 
Transgressio Itrrenzgresh(iy)ow/. In old English law, a 
violation of law. Also trespass; the action of trespass. 
Transgressio est cum modus non servatur nec men
sura, debit enim quilibet in suo facto modum ha
bere et mensuram Itrrenzgresh(iy)ow est k;}m mowd:ls 
non s:lrveyt:lr nek mens(y)ur:l, deb:lt iyn:lm kwayl:lb:lt in 
s(y)uwow frektow mowd:lm h:lbiriy et mens(y)ur:lm/. 
Transgression is when neither mode nor measure is 
preserved, for every one in his act ought to have a mode 
and measure. 
Transgressione Itrrenzgreshiyowniy I. In old English 
law, a writ or action of trespass. 
Transgressione multiplicata, crescat prenre inflictio 
Itrrenzgreshiyowniy m;}lt:}pl:lkeyt:}, kresk:lt piyniy 
infliksh(iy)ow I. When transgression is multiplied, let 
the infliction of punishment be increased. 
Transgressive trust Itrrenzgres:lv tr�st/. See Trust. 
Transhipment. In maritime law, the act of taking the 
cargo out of one ship and loading it in another. 
Transient, n. Itrrenzh(iY):lnt/. One who, or that which, 
is temporary. Synonymous with transitory, fugitive, 
fleeting, momentary. 
Transient, adj. Passing across, as from one thing or 
person to another; passing with time of short duration; 
not permanent; not lasting; temporary. Tilly v. Wood
ham, La.App., 163 So. 771, 772. 
Transient foreigner. One who visits the country, with
out the intention of remaining. 
Transient merchant. A merchant who engages in the 
vending or sale of merchandise at any place in the state

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1499 
temporarily, and who does not intend to become, and 
does not become, a permanent merchant of such place. 
Transient person. One who has no legal residence 
within a jurisdiction for the purpose of state venue 
statute. Aetna Finance Co. v. Gutierrez, 96 N.M. 538, 
632 P.2d 1176. 
Transire, v. Itrrenzayriy I. Lat. To go, or pass over; to 
pass from one thing, person, or place to another. 
Transire, n. Itrrenzayriy/. In English law, a warrant or 
permit for the custom-house to let goods pass. 
Transit. A stop-over privilege on a continuous journey 
granted by carrier by which a break de facto in continui
ty of carriage of goods is disregarded and two legs of a 
journey are treated as though covered without interrup
tion, uniting both legs into a through route for which a 
joint rate can be published. Galveston Truck Line Cor
poration v. State, Tex.Ci v.App., 123 S.W.2d 797, 802; 
Baltimore and O. R. Co. v. United States, D.C.N.Y., 24 
F.Supp. 734, 735. Within policy covering goods in tran
sit, term has significance of activity and of motion and 
direction; literally it means in course of passing from 
point to point, and ordinarily goods in transit would 
imply that foods will lawfully be picked up at given 
place and hauled to place designated by owner or one 
with authority to so designate. Simons v. Niagara Fire 
Ins. Co., Tex.Civ.App., 398 S.W.2d 833, 834. Term may 
also be applied to a check which is mailed for collection 
while it is still in the mails and uncollected. See also In 
transitu; Stoppage in transit. 
Transportation of goods or persons from one place to 
another. Passage; act of passing. 
Transit in rem judicatam Itrrenz�t �n rem juw
d�keyt�m/. It passes into a matter adjudged; it be
comes converted into a res judicata or judgment. A 
contract upon which a judgment is obtained is said to 
pass in rem judicatam. 
Transitive covenant. See Covenant. 
Transitory. Passing from place to place; that which 
may pass or be changed from one place to another; the 
opposite of "local." See Transitory action. 
Transitory action. An action that is personal; i.e., 
brought against the person of the defendant-and 
brought in any county in which service of process upon 
the defendant is obtained. A lawsuit that may be 
brought in any one of many places. Actions are "trans
itory" when transaction on which they are based might 
take place anywhere, and are "local" when they could 
not occur except in some particular place; the distinc
tion being in nature of subject of injury and not in 
means used or place at which cause of action arises. 
Howle v. Twin States Exp., 237 N.C. 667, 75 S.E.2d 732, 
736. See also In personam; In rem. 
Transit privilege. A rate accommodation designed to 
permit shipper of raw materials or agricultural products 
to unload and process commodities at a point en route 
without being required to pay local rates for each seg-
TRAP 
ment of the entire route. Burlington Northern Inc. v. 
U.S., C.A. 8, 561 F.2d 167, 168. 
Transit terra cum onere Itrrenz�t tehr� k;}m 6wn�riy I. 
Land passes subject to any burden affecting it. 
Transitus Itrrenz�t�s/. Lat. Passage from one place to 
another; transit. In transitu, on the passage, transit, or 
way. 
Translado Itransla<'5ow I. Span. A transcript. 
Translation. The reproduction in one language of a 
book, document, or speech in another language. 
The transfer of property; but in this sense it is seldom 
used. 2 Bl.Comm. 294. 
In ecclesiastical law, as applied to a bishop, the term 
denotes his removal from one diocese to another. 
Translatitium edictum Itrrenzl�tish(iy)�m �dikt�m/. 
Lat. In Roman law, the prretor, on his accession to 
office, did not usually publish an entirely new edict, but 
retained the whole or a part of that promulgated by his 
predecessor, as being of an approved or permanently 
useful character. The portion thus repeated or handed 
down from year to year was called the "edictum transla
titium. " 
Translative fact. A fact by means of which a right is 
transferred or passes from one person to another; one, 
that is, which fulfills the double function of terminating 
the right of one person to an object, and of originating 
the right of another to it. 
Transmission. In the civil law, the right which heirs or 
legatees may have of passing to their successors the 
inheritance or legacy to which they were entitled, if 
they happen to die without having exercised their 
rights. 
Transmit. To send or transfer from one person or place 
to another, or to communicate. State v. Robbins, 253 
N.C. 47, 11 6 S.E.2d 192, 193. 
Transmittal letter. Non-substantive document which 
establishes a record of delivery; e.g. letter to the SEC 
which accompanies a preliminary filing. 
Transport, n. In old New York law, a conveyance of 
land. 
Transport, v. To carry or convey from one place to 
another. Sacramento Nav. Co. v. Salz, 273 U.S. 326, 47 
S.Ct. 368, 369, 71 L.Ed. 663; People v. One 1941 Cadillac 
Club Coupe, 63 Cal.2d 418, 147 P.2d 49, 51. 
Transportation. The movement of goods or persons 
from one place to another, by a carrier. Interstate 
Commerce Com'n v. Brimson, 154 U.S. 447, 14 S.Ct. 
1125, 38 L.Ed. 1047. 
Criminal law. A species of punishment consisting in 
removing the criminal from his own country to another 
(usually a penal colony), there to remain in exile for a 
prescribed period. Fong Yue Ting v. U. S., 149 U.S. 698, 
13 S.Ct. 1016, 37 L.Ed. 905. See Deportation. 
Trap. A device, as a pitfall, snare, or machine that shuts 
suddenly as with a spring, for taking game and other

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animals. Hence, any device or contrivance by which 
one may be caught unawares, strategem; snare; gin. It 
imports an affirmative intent or design either malicious 
or mischievous, to cause injury. Gumbart v. Waterbury 
Club Holding Corporation, D.C.Conn., 27 F.Supp. 228, 
229, 230. The doctrine of "trap" as ground for recovery 
by trespasser is rested upon theory that owner expected 
trespasser and prepared an injury. Moseley v. Alabama 
Power Co., 246 Ala. 416, 21 So.2d 305, 307. The "trap" 
or "pitfall" which would raise duty of care on part of 
owner or occupier of land running to a licensee must be 
an ultrahazardous hidden peril of which occupier has 
knowledge but licensee does not, and it is not necessary 
that such trap or pitfall be designed or intended to catch 
or entrap anything. Bichsel v. Blumhost, Mo.App., 429 
S.W.2d 301, 306. See also Entrapment. 
Traslado Itra(n)slaoow/. In Spanish law, a copy; a 
sight. 
A copy of a document taken by the notary from the 
original, or a subsequent copy taken from the protocol, 
and not a copy taken directly from the matrix or proto
col. 
Trassans Itrresrenzl. Drawing; one who draws. The 
drawer of a bill of exchange. 
Trassatus Itrreseyt;,}s/. One who is drawn, or drawn 
upon. The drawee of a bill of exchange. 
Trauma Itrawm;'}/trom;'}/. A physical injury caused by a 
blow, or fall, or a psychologically damaging emotional 
experience. An injury, wound, shock, or the resulting 
condition or neurosis. Ortkiese v. Clarson & Ewell 
Engineering, Fla., 126 So.2d 556, 561. 
Traumatic Itr;'}mret;'}k/. Caused by or resulting from a 
wound or any external injury; as, traumatic insanity, 
produced by an injury to or fracture of the skull with 
consequent pressure on the brain. Figueroa v. Industri
al Commission, 22 Ariz.App. 594, 529 P.2d 1188, 11 91. 
Traumatism Itrawm;,}tiz;'}m/troO I. A diseased condition 
of the body or any part of it caused by a wound or 
external injury. 
Travail Itrreveyl/tr;'}veyl/. The act of child-bearing. A 
woman is said to be in her travail from the time the 
pains of child-bearing commence until her delivery. 
Travel. To go from one place to another at a distance; 
to journey. Spoken of voluntary change of place. With
in the meaning of a constitutional right to travel, means 
migration with intent to settle and abide. Strong v. 
Collatos, D.C.Mass., 450 F.Supp. 1356, 1360. 
Travel Act. Federal act prohibiting travel in interstate 
or foreign commerce to further unlawful gambling, pros
titution, extortion, bribery or arson, as well as illegal 
transactions involving liquor or narcotics. 18 U.S.C.A. 
§ 1952. 
Traveled part of highway. See Traveled way. 
Traveled place. A place where the public have, in some 
manner, acquired the legal right to travel. 
1500 
Traveled way. The traveled path, or the path used for 
public travel, within located limits of the way. Also 
called "traveled part of highway." 
Traveler. One who passes from place to place, whether 
for pleasure, instruction, business or health. 
Traveler's check. Instrument purchased from bank, 
express company, or the like, in various denominations, 
which can be used as cash upon second signature by 
purchaser. It has the characteristics of a cashier's 
check of the issuer. Pines v. United States, C.C.A. lowa, 
123 F.2d 825, 828. It requires the signature of the 
purchaser at the time he buys it and also at the time 
when he uses it. 
Traveler's letter of credit. A type of letter of credit 
which is addressed to a correspondent bank. When the 
traveler wishes to draw credit on the correspondent 
bank, he identifies himself as the person in whose favor 
the credit is drawn. 
Travel expenses. Travel expenses include meals and 
lodging and transportation expenses while away from 
home in the pursuit of a trade or business (including 
that of an employee). See Tax home. 
Traverse. In common law pleading, a traverse signifies 
a denial. Thus, where a defendant denies any material 
allegation of fact in the plaintiffs declaration, he is said 
to traverse it, and the plea itself is thence frequently 
termed a "traverse." See also Denial. 
Common traverse. A simple and direct denial of the 
material allegations of the opposite pleading, and with
out inducement or absque hoc. 
Criminal practice. To put off or delay the trial of an 
indictment until a succeeding term. More properly, to 
deny or take issue upon an indictment. 4 Bl.Comm. 35 1. 
General traverse. One preceded by a general induce
ment, and denying in general terms all that is last 
before alleged on the opposite side, instead of pursuing 
the words of the allegations which it denies. 
Special traverse. A peculiar form of traverse or denial, 
the design of which, as distinguished from a common 
traverse, is to explain or qualify the denial, instead of 
putting it in the direct and absolute form. It consists of 
an affirmative and a negative part, the first setting 
forth the new affirmative matter tending to explain or 
qualify the denial, and technically called the "induce
ment," and the latter constituting the direct denial 
itself, and technically called the "absque hoc. " 
Traverse jury. A petit jury; a trial jury; a jury impan
eled to try an action or prosecution, as distinguished 
from a grand jury. See Jury. 
Traverse of indictment or presentment. The taking issue 
upon and contradicting or denying some chief point of it. 
Traverse of office. The proving that an inquisition made 
of lands or goods by the escheator is defective and 
untruly made. It is the challenging, by a subject, of an 
inquest of office, as being defective and untruly made.

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1501 
Traverse upon a traverse. One growing out of the same 
point or subject-matter as is embraced in a preceding 
traverse on the other side. 
Traverser. In pleading, one who traverses or denies. A 
prisoner or party indicted; so called from his traversing 
the indictment. 
Traversing note. A pleading in chancery, consisting of 
a denial put in by the plaintiff on behalf of the defen
dant, generally denying all the statements in the plain
tiffs bill. The effect of it is to put the plaintiff upon 
proof of the whole contents of his bill, and is only 
resorted to for the purpose of saving time, and in a case 
where the plaintiff can safely dispense with an answer. 
A copy of the note must be served on the def endant. 
T.R.E. An abbreviation of "Tempore Regis Edwardi" (in 
the time of King Edward), of common occurrence in 
Domesday, when the valuation of manors, as it was in 
the time of Edward the Confessor, is recounted. 
Treacher, trechetour, or treachour. A traitor. 
Treachery. Deliberate and wilful betrayal of trust and 
confidence. 
Tread-mill, or tread-wheel. An instrument of prison 
discipline, being a wheel or cylinder with an horizontal 
axis, having steps attached to it, up which the prisoners 
walk, and thus put the axis in motion. The men hold on 
by a fixed rail, and, as their weight presses down the 
step upon which they tread, they ascend the next step, 
and thus drive the wheeL 
Treason. A breach of allegiance to one's government, 
usually committed through levying war against such 
government or by giving aid or comfort to the enemy. 
The offense of attempting by overt acts to overthrow the 
government of the state to which the offender owes 
allegiance; or of betraying the state into the hands of a 
foreign power. Treason consists of two elements: adher
ence to the enemy, and rendering him aid and comfort. 
Cramer v. U. S., U.S.N.Y., 325 U.S. 1, 65 S.Ct. 918, 932, 
89 L.Ed. 1441. See 18 U.S.C.A. § 2381. A person can be 
convicted of treason only on the testimony of two wit
nesses, or confession in open court. Art. III, Sec. 3, U.S. 
Constitution. 
Constructive treason. Treason imputed to a person by 
law from his conduct or course of actions, though his 
deeds taken severally do not amount to actual treason. 
This doctrine is not known in the United States. 
High treason. In English law, treason against the king 
or sovereign, as distinguished from petit or petty trea
son, which might formerly be committed against a sub
ject. 
Misprision of treason. See Misprision of treason. 
Petit treason. In old English law, the crime committed 
by a wife in killing her husband, or a servant his lord or 
master, or an ecclesiastic his lord or ordinary. 4 BL 
Comm. 75. 
Treason-felony. Under the English statute 11 & 12 
Vict., c. 12, passed in 1848, is the offense of compassing, 
TREASURY BILL 
devising, etc., to depose her majesty from the crown; or 
to levy war in order to intimidate either house of par
liament, etc., or to stir up foreigners by any printing or 
writing to invade the kingdom. This offense is punisha
ble with penal servitude for life, or for any term not less 
than five years, etc., under statutes 11 & 12 Vict., c. 12, 
§ 3; 20 & 21 Vict., c. 3, § 2; 27 & 28 Vict., c. 47, § 2. By 
the statute first above mentioned, the government is 
enabled to treat as felony many offenses which must 
formerly have been treated as high treason. 
Treasonable. Having the nature or guilt of treason. 
Treasure. A treasure is a thing hidden or buried in the 
earth, on which no one can prove his property, and 
which is discovered by chance. See Treasure-trove. 
Treasurer. An officer of a public or private corporation, 
company, or government, charged with the receipt, cus
tody, investment, and disbursement of its moneys or 
funds. 
Treasurer, Lord High. Formerly the chief treasurer of 
England, who had charge of the moneys in the excheq
uer, the chancellor of the exchequer being under him. 
He appointed all revenue officers and escheaters, and 
leased crown lands. The office is obsolete, and his 
duties are now performed by the lords commissioners of 
the treasury. 
Treasurer of the United States. See Treasury Depart
ment. 
Treasurer's Remembrancer. In English law, he whose 
charge was to put the lord treasurer and the rest of the 
judges of the exchequer in remembrance of such things 
as were called on and dealt in for the sovereign's behalf. 
Treasure-trove. Literally, treasure found. Money or 
coin, gold, silver, plate or bullion found hidden in the 
earth or other private place, the owner thereof being 
unknown. 1 BLComm. 295. Called in Latin "thesaurus 
inventus;" and in Saxon "fynderinga." Finder of treas
ure trove, is entitled thereto as against owner of land 
where such treasure is found and all the world save the 
true owner, in absence of statute. Schley v. Couch, 284 
S.W.2d 333, 335. 
Treasuries. Debt obligations of U.S. government backed 
by Full Faith and Credit of government. See Treasury 
bill; Treasury bond; Treasury note. 
Treasury. A place or building in which stores of wealth 
are reposited; particularly, a place where the public 
revenues are deposited and kept, and where money is 
disbursed to defray the expenses of government. 
That department of government which is charged 
with the receipt, custody, and disbursement (pursuant to 
appropriations) of the public revenues or funds. 
Treasury bench. In the English house of commons, the 
first row of seats on the right hand of the speaker is so 
called, because occupied by the first lord of the treasury 
or principal minister of the crown. 
Treasury bill. Short-term obligations of the federal 
government. Treasury bills are for specified terms of 
three, six and twelve months.

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TREASURY BILL 
An obligation of the U.S. Treasury with a maturity 
date less than one year from the date of issue and 
bearing no interest but sold at a discount. Distin
guished from a certificate of indebtedness, which also is 
of a maturity of one year or less but bears interest. 
Compare Treasury bond; Treasury certificate; Treasury 
note. 
Treasury bond. A bond issued by a corporation and 
then reacquired; such bonds are treated as retired when 
reacquired and an extraordinary gain or loss on reacqui
sition is recognized. Compare Treasury stock. 
Long term debt instruments of U.S. government. 
Treasury certificate. An obligation of the U.S. general
ly maturing in one year on which interest is paid on a 
coupon basis. Compare Treasury bill. 
Treasury Department. The Treasury Department was 
created by act of Congress approved September 2, 1789. 
Many subsequent acts have figured in the development 
of the Department delegating new duties to its charge 
and establishing the numerous bureaus and divisions 
which now compose the Treasury. The Department of 
the Treasury performs four basic types of functions: 
formulating and recommending financial, tax, and fiscal 
policies; serving as financial agent for the U.S. Govern
ment; law enforcement; and manufacturing coins and 
currency. See also Internal Revenue Service. 
Treasury note. An obligation of the federal govern
ment, with a maturity of one to ten years, on which 
interest is paid by coupon. Compare Treasury bill; Trea
sury bond. 
Treasury Regulations. See Regulations. 
Treasury securities. See Treasury stock. 
Treasury shares. See Treasury stock. 
Treasury stock. Stock which has been issued as fully 
paid to stockholders and subsequently reacquired by the 
corporation to be used by it in furtherance of its corpo
rate purposes; stock which is merely to be held as 
unsubscribed for and unissued is not usually regarded as 
"treasury stock". Bronson v. Bagdad Cooper Corp., 151 
A.2d 677, 679. The Revised Model Business Corporation 
Act and the statutes of several states have eliminated 
the concept of treasury shares; reacquired shares auto
matically having the status of authorized but unissued 
shares. Compare Treasury bond. 
Treasury warrant. Order in check form on U.S. Trea
sury on which treasury (i.e. government) disbursements 
are paid. 
Treating physician rule. This rule states that social 
security disability claimant's treating physician's diag
noses and findings regarding degree of claimant's im
pairment are binding on administrative law judge unless 
there is substantial contrary evidence. Arzuaga v. Bow
en, C.A.N.Y., 833 F.2d 424, 426. 
Treatment. A broad term covering all the steps taken to 
effect a cure of an injury or disease; including examina
tion and diagnosis as well as application of remedies. 
1502 
Treaty. A compact made between two or more indepen
dent nations with a view to the public welfare. Louis 
Wolf & Co. v. United States, Cust. & Pat.App., 107 F.2d 
819, 827; United States v. Belmont, N.Y., 301 U.S. 324, 
57 S.Ct. 758, 761, 81 L.Ed. 1134. An agreement, league, 
or contract between two or more nations or sovereigns, 
formally signed by commissioners properly authorized, 
and solemnly ratified by the several sovereigns or the 
supreme power of each state. Edye v. Robertson, 11 2 
U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798; Charlton v. Kelly, 
229 U.S. 447, 33 S.Ct. 945, 954, 57 L.Ed. 1274, 46 
L.R.A.,N.S., 397. A treaty is not only a law but also a 
contract between two nations and must, if possible, be so 
construed as to give full force and effect to all its parts. 
United States v. Reid, C.C.A.Or., 73 F.2d 153, 155. The 
term has a far more restricted meaning under U.S. 
Constitution than under international law. Weinberger 
v. Rossi, Dist.Col., 456 U.S. 25, 102 S.Ct. 1510, 1514, 71 
L.Ed.2d 715. See also Compact. 
United States treaties may be made by the President, 
by and with the advice and consent of the Senate. Art. 
II, Sec. 2, U.S. Const. States may not enter into treaties 
(Art. I, Sec. 10, cl. 1), and, once made, shall be binding 
on the states as the supreme law of the land (Art. VI, cl. 
2). See Supremacy clause; Treaty clause. 
Treaty clause. The provision in the U.S. Constitution, 
Art. II, Sec. 2, which gives to the President the power 
"by and with the consent of the Senate, to make trea
ties, provided two thirds of the Senators present con
cur." 
Treaty of peace. An agreement or contract made by 
belligerent powers, in which they agree to lay down 
their arms, and by which they stipulate the conditions of 
peace and regulate the manner in which it is to be 
restored and supported. 
Treaty power. See Treaty clause. 
Treble costs. See Costs. 
Treble damages. See Damages. 
Tresael Itr;}sey(;})lI. L. Fr. A great-great-grandfather. 
Otherwise written "tresaiel," and "tresayle." 3 Bl. 
Comm. 186. 
Tresayle Itr;}sey(;})l/. An abolished writ sued on ouster 
by abatement, on the death of the grandfather's grand
father. 
Tres faciunt collegium Itriyz feysh(iy);}nt k;}liyj(iy);}m/. 
Three make a corporation; three members are requisite 
to constitute a corporation. 1 Bl.Comm. 469. 
Trespass. An unlawful interference with one's person, 
property, or rights. At common law, trespass was a 
form of action brought to recover damages for any 
injury to one's person or property or relationship with 
another. 
Any unauthorized intrusion or invasion of private 
premises or land of another. Antkiewicz v. Motorists 
Mut. Ins. Co., 91 Mich.App. 389, 283 N.W.2d 749, 753. 
Trespass comprehends any misfeasance, transgression or 
offense which damages another person's health, reputa-

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1503 
tion or property. King v. Citizens Bank of De Kalb, 88 
Ga.App. 40, 76 S.E.2d 86, 91. Doing of unlawful act or 
of lawful act in unlawful manner to injury of another's 
person or property. Waco Cotton Oil Mill of Waco v. 
Walker, Tex.Civ.App., 103 S.W.2d 1071, 1072. An un
lawful act committed with violence, actual or implied, 
causing injury to the person, property, or relative rights 
of another. It comprehends not only forcible wrongs, 
but also acts the consequences of which make them 
tortious. Mawson v. Vess Beverage Co., Mo.App., 173 
S.W.2d 606, 612, 613, 614. 
See also Forcible trespass; Intruder. 
Continu ing trespass. One which is in its nature a per
manent invasion of the rights of another; as, where a 
person builds on his own land so that a part of the 
building overhangs his neighbor's land or dumps rub
bish on the land of another. In such a case, there is a 
continuing wrong so long as the offending object re
mains. 
A trespass may be committed by the continued pres
ence on the land of a structure, chattel, or other thing 
which the actor or his predecessor in legal interest has 
placed on the land: (a) with the consent of the person 
then in possession of the land, if the actor fails to 
remove it after the consent has been effectively termi
nated, or (b) pursuant to a privilege conferred on the 
actor irrespective of the possessor's consent, if the actor 
fails to remove it after the privilege has been terminat
ed, by the accomplishment of its purpose or otherwise. 
Restatement, Second, Torts, § 160. 
Criminal trespass. Criminal trespass is entering or re
maining upon or in any land, structure, vehicle, aircraft 
or watercraft by one who knows he is not authorized or 
privileged to do so; and (a) He enters or remains therein 
in defiance of an order not to enter or to leave such 
premises or property personally communicated to him 
by the owner thereof or other authorized person; or (b) 
Such premises or property are posted in a manner 
reasonably likely to come to the attention of intruders, 
or are fenced or otherwise enclosed. See also Criminal. 
Joint trespass. Exists where two or more persons unite 
in committing it, or where some actually commit the 
tort, the others command, encourage or direct it. 
Permanent trespass. One which consists of a series of 
acts, done on successive days, which are of the same 
nature, and are renewed or continued from day to day, 
so that, in the aggregate, they make up one indivisible 
wrong. 3 Bl.Comm. 212. 
Trespass ab initio. One who innocently or with a privi
lege enters upon land may become a trespasser "from 
the beginning" if his subsequent conduct constitutes 
trespass by an abuse of such privilege. 
Trespass de bonis asportatis /tresp�s diy b6wn�s 
respO)rteyt�s/. (Trespass for goods carried away.) The 
technical name of that species of action of trespass for 
injuries to personal property which lies where the injury 
consists in carrying away the goods or property. See 3 
Bl.Comm. 150, 151. 
TRESPASS 
Trespass for mesne profits /trespO)s f�r miyn pr6f�ts/. A 
form of action supplemental to an action of ejectment, 
brought against the tenant in possession to recover the 
profits which he has wrongfully received during the 
time of his occupation. 3 Bl.Comm. 205. 
Trespass on the case. The form of action, at common 
law, adapted to the recovery of damages for some injury 
resulting to a party from the wrongful act of another, 
unaccompanied by direct or immediate force, or which is 
the indirect or secondary consequence of defendant's act. 
Such action is the ancestor of the present day action for 
negligence where problems of legal and factual cause 
arise. Mueller v. Brunn, 105 Wis.2d 171, 313 N.W.2d 
790, 794. Commonly called, by abbreviation, "Case ." 
Trespass quare clausum fregit /tresp�s kw6riy kl6z�m 
friyj�t/. "Trespass wherefore he broke the close." The 
common-law action for damages for an unlawful entry 
or trespass upon the plaintiffs land. In the Latin form 
of the writ, the defendant was called upon to show why 
he broke the plaintiffs close; i.e., the real or imaginary 
structure inclosing the land, whence the name. It is 
commonly abbreviated to "trespass quo cl. fr." See also 
Trespass to try title, below. 
Trespass to chattels. An unlawful and serious interfer
ence with the possessory rights of another to personal 
property. 
Trespass to land. At common law, every unauthorized 
and direct breach of the boundaries of another's land 
was an actionable trespass. It is a wrong against one 
who has this right to possession, not necessarily against 
the person who has title but no immediate right to 
possession. No intent to commit a trespass was re
quired. All that was necessary was that the act result
ing in the trespass be volitional, and that the resulting 
trespass be direct and immediate. Nor did actual dam
age need be shown. Any trespass justified at least 
nominal damages. The present prevailing position of 
the courts, and Restatement of Torts, finds liability for 
trespass only in the case of intentional intrusion, or 
negligence, or some "abnormally dangerous activity" on 
the part of the defendant. Restatement, Second, Torts, 
§ 166. See Zimmer V. Stephenson, 66 Wash.2d 477, 403 
P.2d 343. Compare Nuisance. 
Extent of trespasser' s liability for harm. A trespass on 
land subjects the trespasser to liability for physical 
harm to the possessor of the land at the time of the 
trespass, or to the land or to his things, or to members 
of his household or to their things, caused by any act 
done, activity carried on, or condition created by the 
trespasser, irrespective of whether his conduct is such 
as would subject him to liability were he not a trespass
er. Restatement, Second, Torts, § 162. 
Failure to remove thing tortiously placed on land. A 
trespass may be committed by the continued presence 
on the land of a structure, chattel, or other thing which 
the actor has tortiously placed there, whether or not 
the actor has the ability to remove it. A trespass may 
be committed by the continued presence on the land of 
a structure, chattel, or other thing which the actor's

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TRESPASS 
predecessor in legal interest therein has tortiously 
placed there, if the actor, having acquired his legal 
interest in the thing with knowledge of such tortious 
conduct or having thereafter learned of it, fails to 
remove the thing. Restatement, Second, Torts, § 161. 
Intrusions upon, beneath, and above surface of land. 
(1) Except as stated in Subsection (2), a trespass may be 
committed on, beneath, or above the surface of the 
earth. (2) Flight by aircraft in the air space above the 
land of another is a trespass if, but only if, (a) it enters 
into the immediate reaches of the air space next to the 
land, and (b) it interferes substantially with the other's 
use and enjoyment of his land. Restatement, Second, 
Torts, § 159. 
Liability for intentional intrusions on land. One is 
subject to liability to another for trespass, irrespective 
of whether he thereby causes harm to any legally 
protected interest of the other, if he intentionally (a) 
enters land in the possession of the other, or causes a 
thing or a third person to do so, or (b) remains on the 
land, or (c) fails to remove from the land a thing which 
he is under a duty to remove. Restatement, Second, 
Torts, § 158. 
Trespass to try title. The name of the action used in 
several of the states for the recovery of the possession of 
real property unlawfully withheld, from an owner who 
has a right of immediate possession, with damages for 
any trespass committed upon the same by the defen
dant. A procedure by which rival claims to title or right 
to possession of land may be adjudicated, and as an 
incident partition may also be had when the controversy 
concerning title or right to possession is settled. It is 
different from "trespass quare clausum fregit (see 
above)," in that title must be proved. See also Eject
ment. 
Trespass vi et armis Itresp;}s vay et arm;}sl. Trespass 
with force and arms. The common-law action for dam
ages for any injury committed by the defendant with 
direct and immediate force or violence against the plain
tiff or his property. See Mawson v. Vess Beverage Co., 
Mo.App., 173 S.W.2d 606, 613. 
Trespasser. One who has committed trespass. One who 
intentionally and without consent or privilege enters 
another's property. One who enters upon property of 
another without any right, lawful authority, or express 
or implied invitation, permission, or license, not in per
formance of any duties to owner, but merely for his own 
purpose, pleasure or convenience. Mendoza v. City of 
Corpus Christi, Tex.App. 13 Dist., 700 S.W.2d 652, 654. 
Innocent trespasser. See that title. 
Joint trespassers. Two or more who unite in committing 
a trespass. 
Trespasser ab initio I tresp;}s;}r reb ;}nish(iy )ow I. Tres
passer from the beginning. A term applied to a tort-fea
sor whose acts relate back so as to make a previous act, 
at the time innocent, unlawful; as if he enter peaceably, 
and subsequently commit a breach of the peace, his 
entry is considered a trespass. 
1504 
Trestornare Itrest;}rneriy/. In old English law, to turn 
aside; to divert a stream from its course. To turn or 
alter the course of a road. 
Tresviri Itriyzv;}ray/. Lat. In Roman law, officers who 
had the charge of prisons, and the execution of con
demned criminals. 
Tret Itret/. An allowance made for the water or dust 
that may be mixed with any commodity. It differs from 
tare (q. v.). 
Tretbinga ItriyoiIJ;}/. In old English law, a trithing; the 
court of a trithing. 
Treyt Itreyt/triyt/. Withdrawn, as a juror. Written 
also treat. 
Tria capita Itray;} krep;}t;}/. In Roman law, were civitas, 
libertas, and familia; i.e., citizenship, freedom, and fam
ily rights. 
Trial. A judicial examination and determination of is
sues between parties to action, whether they be issues of 
law or of fact, before a court that has jurisdiction. 
Tittsworth v. Chaffin, Mo.App., 741 S.W.2d 314, 317. A 
judicial examination, in accordance with law of the land, 
of a cause, either civil or criminal, of the issues between 
the parties, whether of law or fact, before a court that 
has proper jurisdiction. 
See also Bifurcated trial; Civil jury trial; Examining trial; 
Fair and impartial trial; Mini-trial; Mistrial; Speedy trial; 
Trifurcated trial. 
Bench trial. See Trial by court or judge, below. 
New trial. A re-examination in the same court of an 
issue of fact, or some part or portions thereof, after the 
verdict by a jury, report of a referee, or a decision by the 
court. See Fed.R.Civil P. 59; Fed.R.Crim.P. 33. See 
Trial de novo, below. See also Motion for new trial; Plain 
error rule; Venire facias de novo. 
Nonjury trial. See Trial by court or judge, below. 
Public trial. A trial held in public, in the presence of 
the public, or in a place accessible and open to the 
attendance of the public at large, or of persons who may 
properly be admitted. The Sixth Amendment, U.S. 
Const., affords the accused the right to a speedy and 
"public" trial. See, however, Trial by news media, below. 
Separate trial. See that title. 
Speedy trial. See that title. 
State trial. See State. 
Trial at nisi prius Itray(;})l ret naysay pray;}sl. The 
ordinary kind of trial which takes place at the sittings, 
assizes, or circuit, before a single judge. 
Trial balance. In bookkeeping, a listing of debit and 
credit balances of all ledger accounts. The listing is 
generally taken at end of an accounting period to check 
as to whether all entries have been made in both debit 
and credit accounts, though such listing need not prove 
accuracy of accounts if an error has been made in both 
the debit and credit entry.

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A listing of account balances; all accounts with debit 
balances are totaled separately from accounts with cred
it balances. The two totals should be equal. Trial 
balances are taken as a partial check of the arithmetic 
accuracy of the entries previously made. 
Trial by certificate. A form of trial formerly allowed in 
cases where the evidence of the person certifying was 
the only proper criterion of the point in dispute. Under 
such circumstances, the issue might be determined by 
the certificate alone, because, if sent to a jury, it would 
be conclusive upon them, and therefore their interven
tion was unnecessary. 
Trial by court or judge. Trial before judge alone, in 
contrast to trial before jury and judge. A jury waived 
trial. 
Trial by fire. See Ordeal. 
Trial by Grand Assize. A peculiar mode of trial former
ly allowed in England on writs of right. See Assize. 
Trial by jury. A trial in which the issues of fact are to 
be determined by the verdict of a jury, duly selected, 
impaneled, and sworn. The terms "jury" and "trial by 
jury" were used at the adoption of the Constitution, and 
have their source in the English legal system. A jury 
for the trial of a cause was a body of twelve men, 
described as upright, well-qualified, and lawful men, 
disinterested and impartial, not of kin nor personal 
dependents of either of the parties, having their homes 
within the jurisdictional limits of the court, drawn and 
selected by officers free from all bias in favor of or 
against either party, duly impaneled under the direction 
of a competent court, sworn to render a true verdict 
according to the law and the evidence given them, who, 
after hearing the parties and their evidence, and receiv
ing the instructions of the court relative to the law 
involved in the trial, and deliberating, when necessary, 
apart from all extraneous influences, must return their 
unanimous verdict upon the issue submitted to them. 
In federal court, and as well in many state courts, the 
parties may stipulate that the jury shall consist of less 
than twelve members or that a verdict of a stated 
majority of the jurors shall be taken as the verdict of the 
jury. See Fed.R.Civil P. 48; Fed.R.Crim.P. 23. 
The Seventh Amendment to Federal Constitution pro
vides that "In suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved." See also Fed.R.Civil P. 
38(a). The right to a jury trial is also preserved in state 
constitutions. In civil cases in federal court, a jury trial 
must be expressly demanded or such right will be 
deemed waived (Fed.R.Civil P. 38); while in criminal 
cases the right exists unless expressly waived and ap
proved by court and government (Fed.R.Crim.P. 23(a)). 
See also Jury trial. 
Summary jury trial. A settlement technique designed 
to resolve disputes. Attorneys present abbreviated ar
guments to jurors who render an informal nonbinding 
verdict that guides the settlement of the case. Normal
ly, six mock jurors are chosen after a brief voir dire 
conducted by the court. Following short opening state
ments, all evidence is presented in the form of a de
scriptive summary to the mock jury through the par-
TRIAL 
ties' attorneys. Live witnesses do not testify, and evi
dentiary objections are discouraged. The Cincinnati 
Gas and Electric Company v. General Electronic Com
pany, C.A. Ohio, 854 F.2d 900, 903, 904. See also 
Min i-trial. 
Trial by news media. The process by which the news 
media in reporting an investigation of a person on trial 
leads its readers to act as judge and jury in determining 
guilt, liability or innocence before the person is tried in 
a judicial forum. Failure to protect accused from inher
ently prejudicial publicity may constitute deprivation of 
right to fair and impartial trial as guaranteed by due 
process clause of Fourteenth Amendment. Sheppard v. 
Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. 
Local court rules have been widely adopted, seeking to 
set a proper balance between a free press and a fair trial 
by putting restrictions on the release of information by 
attorneys and courthouse personnel, making special pro
vision for the conduct of proceedings in extensively 
publicized and sensational cases, and barring photogra
phy, radio, and television equipment from the courtroom 
and its environs. 
See also Gag order. 
Trial by proviso. A proceeding formerly allowed where 
the plaintiff in an action desists from prosecuting his 
suit, and does not bring it to trial in convenient time. 
The defendant, in such case, may take out the venire 
facias to the sheriff, containing these words, "proviso 
quod, "e tc., i.e., provided that. If plaintiff take out any 
writ to that purpose, the sheriff shall summon but one 
jury on them both. This is called "going to trial by 
proviso." 
Trial by the record. A form of trial resorted to where 
issue is taken upon a plea of nul tiel record, in which 
case the party asserting the existence of a record as 
pleaded is bound to produce it in court on a day as
signed. If the record is forthcoming, the issue is tried by 
inspection and examination of it. If the record is not 
produced, judgment is given for his adversary. 3 Bl. 
Comm. 330. 
Trial by wager of battel. See Wager of battel. 
Trial by wager of law. In old English law, a method of 
trial, where the defendant, coming into court, made oath 
that he did not owe the claim demanded of him, and 
eleven of his neighbors, as compurgators, swore that 
they believed him to speak the truth. 3 Bl.Comm. 343. 
See Wager of law. 
Trial by witnesses. The name "trial per testes" was used 
for a trial without the intervention of a jury, was the 
only method of trial known to the civil law, and was 
adopted by depositions in chancery. The judge was thus 
left to form, in his own breast, his sentence upon the 
credit of the witnesses examined. Such type trial was 
very rarely used at common law. 
Trial court. The court of original jurisdiction; the first 
court to consider litigation. 
Trial de novo. A new trial or retrial had in which the 
whole case is retried as if no trial whatever had been

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TRIAL 
had in the first instance. Housing Authority of City of 
Newark v. Norfolk Realty Co., 71 N.J. 314, 364 A.2d 
1052, 1058. A trial of the entire case anew, both on law 
and on facts. In re Initiative Petition No. 260, State 
Question No. 377, Okl., 298 P.2d 753, 756. See New 
trial, above. See also Motion for new trial; Plain error rule. 
Trial jury. See Jury. 
Trial list. A list of cases marked down for trial for any 
one term. See Trial calendar. 
Trial calendar. Comprehensive list of cases awaiting 
trial and containing the dates for trial, names of coun
sel, expected time required for trial, etc. In some states 
it is maintained by the trial judge and in others, by the 
clerk of court. See e.g. Fed.R.Civil P. 79. See also 
Calendar; Docket. 
Trial court. The court of original jurisdiction where all 
evidence is first received and considered; the first court 
to consider litigation. Used in contract to appellate 
court. 
Trial on merits. Trial of substantive issues in case. 
Ennis v. Kennedy Valve Mfg. Co., 282 A.D. 971, 125 
N.Y.S.2d 535, 537. Term used in contrast to a hearing 
on motion or on other interlocutory matters. 
Trial per pais. Historically, a trial by one's peers. 
Triatio ibi semper debet fieri, ubi juratores meliorem 
possunt habere notitiam Itrayeysh(iy)ow aybay 
semp�r deb�t fay�ray, yuwbay jur�toriyz miyliyor�m 
p6s�nt h�biriy nowtish(iy)�m/. Trial ought always to be 
had where the jurors can have the best information. 
Tribal lands. Lands of Indian reservation which are not 
allotted to or occupied by individual Indians but rather 
the unallotted or common lands of the nation. 
Land allotted in severalty to a restricted Indian is no 
longer part of the "reservation" nor is it "tribal land" 
but the virtual fee is in the allottee with certain restric
tions on the right of alienation. United States v. Okla
homa Gas & Electric Co., C.C.A.Okl., 127 F.2d 349, 353. 
See also Indian country; Indian lands; Indian reserva
tion; Indian tribal property. 
Tribuere Itr�byuw�riy/. Lat. In the civil law, to give; 
to distribute. 
Tribunal. The seat of a judge; a court of law; the place 
where he administers justice. The whole body of judges 
who compose a jurisdiction; a judicial court; the juris
diction which the judges exercise. 
In Roman law, an elevated seat occupied by the 
prretor, when he judged, or heard causes in form. Origi
nally a kind of stage made of wood in the form of a 
square, and movable, but afterwards built of stone in the 
form of a semicircle. 
Tribunaux de commerce Itribyuwnow d� komers/. In 
French law, certain courts composed of a president, 
judges, and substitutes, which take cognizance of all 
cases between merchants, and of disagreements among 
partners. Appeals lie from them to the courts of justice. 
1506 
Tributary, n. Itriby�t(eh)riy/. Any stream flowing di
rectly or indirectly into a river. Bull v. Siegrist, 169 Or. 
180, 126 P.2d 832, 834. 
Tributary, adj. Itriby�t(eh)riy/. Paying or yielding trib
ute, taxed or assessed by tribute. 
Tribute Itribyuwt/. A contribution which is raised by a 
prince or sovereign from his subjects to sustain the 
expenses of the state. 
A sum of money paid by an inferior sovereign or state 
to a superior potentate, to secure the friendship or 
protection of the latter. 
Acknowledgment of gratitude or respect. 
Tricesima Itr�sez�m�/. An ancient custom in a borough 
in the county of Hereford, so called because thirty 
burgesses paid 1d. rent for their houses to the bishop, 
who was lord of the manor. 
Trick. A professional engagement of a prostitute. State 
v. Cavness, 46 Haw. 470, 381 P.2d 685, 686. 
Triding-mote ItraydiIJmowt/. The court held for a trid
ing or trithing. 
Triduum Itrid(y)uw�m/. In old English law, the space of 
three days. Ecclesiastically, a devotion of prayer which 
lasts three days. 
Triennial Act Itrayeniy�l rektl. An act of parliament of 
1641, which provided that if in every third year par
liament was not summoned and assembled before Sep
tember 3, it should assemble on the second Monday of 
the next November. 
Also an act of 1694, which provided that a parliament 
be called within three years after dissolution, and that 
the utmost limit of a parliament be three years. This 
was followed by the Septennial Act of 17 16. 
Triens Itrayen(d)z/. Lat. In feudal law, dower or third. 
2 Bl.Comm. 129. 
In Roman law, a subdivision of the as, containing four 
uncia:; the proportion of four-twelfths or one-third. 2 
Bl.Comm. 462, note m. A copper coin of the value of 
one-third of the as. 
Trier of fact. Term includes (a) the jury and (b) the 
court when the court is trying an issue of fact other 
than one relating to the admissibility of evidence. Calif. 
Evid.Code. Commonly refers to judge in jury waived 
trial or jury which, in either case, has the exclusive 
obligation to make findings of fact in contrast to rulings 
of law which must be made by judge. Also may refer to 
hearing officer or judge in administrative proceeding. 
Trifurcated trial. A trial which is divided into three 
stages or parts as for example, a trial on issue of 
liability, trial for general damages, and trial for special 
damages. 
Trigamus Itrig�m�s/. In old English law, one who has 
been thrice married; one who, at different times and 
successively, has had three wives; a trigamist. 
Trigild. In Saxon law, a triple gild, geld, or payment; 
three times the value of a thing, paid as a composition 
or satisfaction.

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1507 
Trinepos Itrin�p�s/. Lat. In Roman law, great-grand
son of a grandchild. 
Trineptis Itr:mept�s/. Lat. Great-granddaughter of a 
grandchild. 
Trinity House. In English law, a society at Deptford 
Strond, incorporated by Hen. VIII in 1515, for the pro
motion of commerce and navigation by licensing and 
regulating pilots, and ordering and erecting beacons, 
lighthouses, buoys, etc. 
Trinity Masters. Elder brethren of the Trinity House. 
If a question arising in an admiralty action depends 
upon technical skill and experience in navigation, the 
judge or court is usually assisted at the hearing by two 
Trinity Masters who sit as assessors, and advise the 
court on questions of a nautical character. 
Trinity sittings. Sittings of the English court of appeal 
and of the high court of justice in London and Middle
sex, commencing on the Tuesday after Whitsun week, 
and terminating on the 8th of August. One of the four 
divisions of the English legal year. See also Easter, 
Hilary, Michaelmas sittings. Rules of the Supreme 
Court 1965. The divisions were formerly called terms 
until the Judicature Act of 1873. 
Triniumgeldum Itriniy�mgeld�m/. In old European 
law, an extraordinary kind of composition for an offense, 
consisting of three times nine, or twenty-seven times the 
single geld or payment. 
Trinoda necessitas Itr�n6wd� n�ses�tres/. Lat. In Sax
on law, a threefold necessity or burden. A term used to 
denote the three things from contributing to the per
formance of which no lands were exempted, viz., pontis 
reparatio (the repair of bridges), arcis constructio (the 
building of castles), et expeditio contra hostem (military 
service against an enemy). 1 Bl.Comm. 263, 357. 
Triors Itray�rz/. Persons who are appointed to try 
challenges to jurors, i.e., to hear and determine whether 
a juror challenged for favor is or is not qualified to 
serve. 
The lords chosen to try a peer, when indicted for 
felony, in the court of the lord high steward, are also 
called "triors." 
Trip, n. A journey or going from one place to another. 
Trip, v. To make a false step; to catch the foot; to 
stumble; to cause to stumble, or take a false step; to 
cause to lose the footing, as by suddenly checking the 
motion of a foot or leg; to throw off balance. Johnston 
v. City of St. Louis, Mo.App., 138 S.W.2d 666, 671. 
Tripartite Itraypartayt/. In conveyancing, of three 
parts; a term applied to an indenture to which there are 
three several parties (of the first, second, and third 
parts), and which is executed in triplicate. 
Triplicacion Itripl�kasy6wn/. L. Fr. In old pleading, a 
rejoinder in pleading; the def endant's answer to the 
plaintiffs replication. 
TROPHY MONEY 
Triplicatio Itripbkeysh(iy)ow/. Lat. In the civil law, 
the reply of the plaintiff to the rejoinder of the defen
dant. It corresponds to the surrejoinder of common law. 
Tristris Itristr�s/. In old forest law, a freedom from the 
duty of attending the lord of a forest when engaged in 
the chase. 
Tritavia Itr�teyv(i)y�/. Lat. In the civil law, a great
grandmother's great-grandmother; the female ascend
ant in the sixth degree. 
Tritavus Itrit�v�s/. Lat. In the civil law, a great-grand
father's great-grandfather; the male ascendant in the 
sixth degree. 
Trithing ItrayoilJ/. In Saxon law, one of the territorial 
divisions of England, being the third part of a county, 
and comprising three or more hundreds. Within the 
trithing there was a court held (called "trithing-mote") 
which resembled the court-Ieet, but was inferior to the 
county court. 
Trithing-mote ItrayoilJmowt/. The court held for a 
trithing or riding. 
Trithing-reeve ItrayoilJ riyv I. The officer who superin
tended a trithing or riding. 
Triumvir Itray�mv�r/. Lat. In old English law, a trith
ing man or constable of three hundred. 
Triumviri capitales Itray�mv�ray krep�teyliyz/. Lat. 
In Roman law, officers who had charge of the prison, 
through whose intervention punishments were inflicted. 
They had eight lictors to execute their orders. 
Triverbial days Itrayv�rbiy�l deyz/. In the civil law, 
juridical days; days allowed to the prretor for deciding 
causes; days on which the prretor might speak the three 
characteristic words of his office, viz., do, dico, addico. 
Otherwise called "dies fasti. " 3 Bl.Comm. 424, and note 
u. 
Trivial. Trifling; inconsiderable; of small worth or im
portance. In equity, a demurrer will lie to a bill on the 
ground of the triviality of the matter in dispute, as being 
below the dignity of the court. 
TRO. Temporary restraining order. 
Tronage Itr6wn�j/. In English law, a customary duty or 
toll for weighing wool; so called because it was weighed 
by a common trona, or beam. 
Tronator Itr6wneyt�r/. A weigher of wool. 
Trophy. Anything taken from an enemy and shown or 
treasured up in proof of victory. A price or token of 
victory in any contest; hence, a memento of victory or 
success; an ornamental group of objects hung together 
on a wall, or any collection of objects typical of some 
event, art, industry, or branch of knowledge; a memento 
or memorial. In re Vortex Cup Co., Cust. & Pat.App., 83 
F.2d 821, 822. 
Trophy money. Money formerly collected and raised in 
London, and the several counties of England, towards 
providing harness and maintenance for the militia, etc.

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TROVER 
Trover Itrowv:Jr/. In common-law practice, the action of 
trover (or trover and conversion) is a species of action on 
the case, and originally lay for the recovery of damages 
against a person who had found another's goods and 
wrongfully converted them to his own use. Subsequent
ly the allegation of the loss of the goods by the plaintiff 
and the finding of them by the defendant was merely 
fictitious, and the action became the remedy for any 
wrongful interference with or detention of the goods of 
another. In form a fiction; in substance, a remedy to 
recover the value of personal chattels wrongfully con
verted by another to his own use. Common-law form of 
action to recover value of goods or chattels by reason of 
an alleged unlawful interference with possessory right 
of another, by assertion or exercise of possession or 
dominion over the chattels, which is adverse and hostile 
to rightful possessor. L. F. Dommerich & Co. v. Bress, 
D.C.N.J., 280 F.Supp. 590, 598. Such remedy lies only 
for wrongful appropriation of goods, chattels, or person
al property which is specific enough to be identified. 
See also Conversion; Detinue; Replevin. 
Troy weight. A weight of twelve ounces to the pound, 
having its name from Troyes, a city in Aube, France. 
Truancy. Wilful and unjustified failure to attend school 
by one who is required to attend. It is a punishable 
offense within the juvenile system in some states and, in 
others, it is the basis of a petition for a child in need of 
services. 
Truce. In international law, a suspension or temporary 
cessation of hostilities by agreement between belligerent 
powers; an armistice. 
Truce of God. In medieval law, a truce or suspension of 
arms promulgated by the church, putting a stop to 
private hostilities at certain periods or during certain 
sacred seasons. 
True. Conformable to fact; correct; exact; actual; gen
uine; honest. In one sense, that only is "true" which is 
conformable to the actual state of things. In that sense, 
a statement is "untrue" which does not express things 
exactly as they are. But in another and broader sense 
the word "true" is often used as a synonym of "honest", 
"sincere", not "fraudulent." Zolintakis v. Equitable Life 
Assur. Soc. of United States, C.C.A.U tah, 108 F.2d 902, 
905; Moulor v. American Life Ins. Co., 111 U.S. 335, 4 
S.Ct. 466, 28 L.Ed. 447. 
True admission. A formal act done in course of judicial 
proceedings which waives or dispenses with production 
of evidence by conceding for purposes of litigation that 
proposition of fact alleged by opponent is true. Maltz v. 
Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 
917. See also Admission; Stipulation. 
True bill. The endorsement made by a grand jury upon 
a bill of indictment, when they find it sustained by the 
evidence laid before them, and are satisfied of the truth 
of the accusation. The endorsement made by a grand 
jury when they find sufficient evidence to warrant a 
criminal charge. An indictment. 
1508 
True copy. A true copy does not mean an absolutely 
exact copy but means that the copy shall be so true that 
anybody can understand it. See Certified copy; Copy. 
True, public, and notorious. These three qualities 
were formally predicated in the libel in the ecclesiastical 
courts, of the charges which it contained, at the end of 
each article severally. 
True value. For tax assessment purposes, term refers to 
the market value of the property at fair and bona fide 
sale at private contract, and is in essence the value 
property has in exchange for money. City of Newark v. 
West Milford Tp., Passaic County, 9 N.J. 295, 88 A.2d 
211, 214. In condemnation proceedings, is market value 
or price which would be agreed upon at voluntary sale 
between willing seller and willing purchaser, taking into 
consideration all available uses to which land might be 
put, as well as all factors, which lead to reimbursement 
for loss caused by taking. State Through Dept. of High
ways v. Poulan, La.App., 160 So.2d 387, 388. See also 
Market value; Value. 
True value rule. Under this rule, one who subscribes 
for and receives corporate stock must pay therefor the 
par value thereof either in money or in money's worth, 
so that the real assets of the corporation shall at least 
square with its books, and whenever, whether by fraud, 
accident or mistake, the true value of property, labor or 
services received in payment does not equal par value, 
stock is deemed unpaid for to the full extent of the 
difference, and holders are liable to creditors for the 
difference, notwithstanding good faith of directors. Jo
hansen v. St. Louis Union Trust Co., 345 Mo. 135, 131 
S.W.2d 599, 603. 
True verdict. The voluntary conclusion of the jury after 
deliberate consideration, and it is none the less a true 
verdict because the respective jurors may have been 
liberal in concessions to each other, if conscientiously 
and freely made. A verdict is not a "true verdict," 
when it is the result of any arbitrary rule or order, 
whether imposed by themselves, or by the court or 
officer in charge. See Verdict. 
Trust. A legal entity created by a grantor for the benefit 
of designated beneficiaries under the laws of the state 
and the valid trust instrument. The trustee holds a 
fiduciary responsibility to manage the trust's corpus 
assets and income for the economic benefit of all of the 
the beneficiaries. A confidence reposed in one person, 
who is termed trustee, for the benefit of another, who is 
called the cestui que trust, respecting property which is 
held by the trustee for the benefit of the cestui que 
trust. State ex reI. Wirt v. Superior Court for Spokane 
County, 10 Wash.2d 362, 11 6 P.2d 752, 755. Any ar
rangement whereby property is transferred with inten
tion that it be administered by trustee for another's 
benefit. A fiduciary relationship in which one person is 
the holder of the title to property subject to an equitable 
obligation to keep or use the property for the benefit of 
another. Scotti's Drive In Restaurants, Inc. v. Mile 
High-Dart In Corp., Wyo., 526 P.2d 1193, 1195.

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1509 
A trust can be created for any purpose which is not 
illegal, and which is not against public policy. Collins v. 
Lyon, Inc., 181 Va. 230, 24 S.E.2d 572, 579. 
Essential elements of trust are designated beneficiary 
and trustee, fund sufficiently identified to enable title to 
pass to trustee, and actual delivery to trustee with 
intention of passing title. City Bank Farmers' Trust Co. 
v. Charity Organization Soc. of City of New York, 238 
App.Div. 720, 265 N.Y.S. 267. 
An association or organization of persons or corpora
tions having the intention and power, or the tendency, 
to create a monopoly, control production, interfere with 
the free course of trade or transportation, or to fix and 
regulate the supply and the price of commodities. In 
the history of economic development, the "trust" was 
originally a device by which several corporations en
gaged in the same general line of business might com
bine for their mutual advantage, in the direction of 
eliminating destructive competition, controlling the out
put of their commodity, and regulating and maintaining 
its price, but at the same time preserving their separate 
individual existence, and without any consolidation or 
merger. This device was the erection of a central com
mittee or board, composed, perhaps, of the presidents or 
general managers of the different corporations, and the 
transfer to them of a majority of the stock in each of the 
corporations, to be held "in trust" for the several stock
holders so assigning their holdings. These stockholders 
received in return "trust certificates" showing that they 
were entitled to receive the dividends on their assigned 
stock, though the voting power of it had passed to the 
trustees. This last feature enabled the trustees or com
mittee to elect all the directors of all the corporations, 
and through them the officers, and thereby to exercise 
an absolutely controlling influence over the policy and 
operations of each constituent company, to the ends and 
with the purposes above mentioned. Though the 
"trust," in this sense, is now seldom if ever resorted to 
as a form of corporate organization, having given place 
to the "holding corporation" and other devices, the word 
became current in statute laws as well as popular 
speech, to designate almost any form of combination of a 
monopolistic character or tendency. Northern Securi
ties Co. v. U. S., 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; 
Mallinckrodt Chemical Works v. State of Missouri, 238 
U.S. 41, 35 S.Ct. 671, 673, 59 L.Ed. 1192. 
In a looser sense the term is applied to any combina
tion of establishments in the same line of business for 
securing the same ends by holding the individual inter
ests of each subservient to a common authority for the 
common interests of all. Mallinckrodt Chemical Works 
v. State of Missouri, 238 U.S. 41, 35 S.Ct. 671, .673, 59 
L.Ed. 11 92. 
A trust, as the term is used in the Restatement, when 
not qualified by the word "charitable," "resulting" or 
"constructive," is a fiduciary relationship with respect to 
property, subjecting the person by whom the title to the 
property is held to equitable duties to deal with the 
property for the benefit of another person, which arises 
TRUST 
as a result of a manifestation of an intention to create it. 
Restatement, Second, Trusts § 2. 
See also Breach of trust; Charitable trust; Claflin trust; 
Common-law trust; Complex trust; Constructive trust; 
Declaration (Declaration of trust), Deed (Deed of trust), 
Equipment; Executory trust; Generation-skipping trust; 
Governmental trusts; Grantor trusts; Illusory trust; Indes
tructible trust; Investment trust; Involu ntary trust; Land 
trust; Life insurance trust; Life interest; Nominal trust; 
Nominee trust; Oral trust; Pension trust; Precatory trust; 
Purchase money resulting trust; Reciprocal trusts; Result
ing trust; Revocable trust; Spendthrift trust; Terms of 
trust; Unitrust; Voting trust. 
Accumulation trust. Trust in which trustees are direct
ed to accumulate income and gains from sales of trust 
assets for ultimate disposition when the trust is termi
nated. Many states have laws governing the time over 
which accumulations may be made. See also Accumula
tion trust. 
Active trust. One which imposes upon the trustee the 
duty of taking active measures in the execution of the 
trust, as, where property is conveyed to trustees with 
directions to sell and distribute the proceeds among 
creditors of the grantor; distinguished from a "passive" 
or "dry" trust. 
In a "passive trust" the legal and equitable titles are 
merged in the beneficiaries and beneficial use is convert
ed into legal ownership, while in an "active trust" the 
title remains in trustee for purpose of the trust. John
son v. Thornton, 264 S.C. 252, 214 S.E.2d 124, 127. 
Alimony trust. Device used to secure obligation of hus
band to pay support or alimony for wife. Transfer by 
husband to trustee of property from which wife as 
beneficiary will be supported after divorce or separation. 
Annuit y trust. An annuity trust is a trust from which 
the trustee is required to pay a sum certain annually to 
one or more individual beneficiaries for their respective 
lives or for a term of years, and thereafter either trans
fer the remainder to or for the use of a qualified charity 
or retain the remainder for such a use. The sum 
certain must not be less than 5% of the initial fair 
market value of the property transferred to the trust by 
the donor. A qualified annuity trust must comply with 
the basic statutory requirements of I.R.C. § 664. See 
also Annui ty trust. 
Blind trust. Device used to give management of one's 
investments to an outside person over whom the benefi
ciary has no control. For example, to avoid the possibil
ity of disqualification a judge could utilize a blind trust 
with respect to his or her investments. Union Carbide 
Corp. v. U.S. Cutting Service, Inc., C.A.Ill., 782 F.2d 710, 
718. 
Bond trust. A trust, the res of which consists in bonds 
which yield interest income. 
Business trust. See Business; Massachusetts trust; Trust 
estates as business companies. 
Bypass trust. Also known as a credit trust, credit shel
ter trust or exemption equivalent trust, it is an estate

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planning tool whereby a deceased spouse's estate passes 
to a trust rather than to the surviving spouse, thereby 
reducing the likelihood that the surviving spouse's sub
sequent estate will exceed the estate tax threshold. 
Typically, the surviving spouse is given a life estate in 
the trust. 
Cestui que trust. The person for whose benefit a trust is 
created or who is to enjoy the income or the avails of it. 
See Beneficiary. 
Charitable remainder trust. A trust which consists of 
assets which are paid over to the trust after the expira
tion of a life estate or intermediate estates and designat
ed for charitable purposes. See also Charitable remainder 
annuity trust. 
Charitable trusts. Trusts designed for the benefit of a 
class or the public generally. They are essentially dif
ferent from private trusts in that the beneficiaries are 
uncertain. In general, such must be created for charita
ble, educational, religious or scientific purposes. See 
Public trust, below. 
Clifford trust. Under this tax planning device, a trans
fer of income-producing property is made to a trust 
which provides that the income is either to be paid or 
accumulated for the benefit of a beneficiary other than 
the grantor for a period of more than ten years, at 
which time the trust is to terminate and the property 
reverts back to the grantor. This transfer is made at 
the cost of a gift tax and if the gift tax paid is less than 
the income tax which will be saved as the result of the 
shifting of the income from the high-bracket grantor to 
the low-bracket beneficiary, the technique has merit 
from a tax point of view. Helvering v. Clifford, 309 U.S. 
331, 60 S.Ct. 554, 84 L.Ed. 788; I.R.C. §§ 671-678. The 
Tax Reform Act of 1986 changed the laws with respect 
to the Clifford Trust and for transfers made after March 
1, 1986, the trust is subject to taxation at the grantor's 
rate, which effectively eliminates the benefits of the 
Clifford Trust. 
Community trust. An agency organized for the perma
nent administration of funds placed in trust for public 
health, educational and charitable purposes. 
Complete voluntary trust. One completely created, the 
subject-matter being designated, the trustee and benefi
ciary being named, and the limitations and trusts being 
fully and perfectly declared. 
Complex trust. A complex trust is any trust other than 
a simple trust. One in which the trustees have discre
tion as to whether to distribute and discretion as to 
amounts distributed. Such trusts are governed for tax 
purposes by I.R.C. §§ 661-663. 
Constructive trust. A trust raised by construction of 
law, or arising by operation of law, as distinguished 
from an express trust. Wherever the circumstances of a 
transaction are such that the person who takes the legal 
estate in property cannot also enjoy the beneficial inter
est without necessarily violating some established prin
ciple of equity, the court will immediately raise a con
structive trust, and fasten it upon the conscience of the 
1510 
legal owner, so as to convert him into a trustee for the 
parties who in equity are entitled to the beneficial 
enjoyment. 
Constructive trusts do not arise by agreement or from 
intention, but by operation of law, and fraud, active or 
constructive, is their essential element. Actual fraud is 
not necessary, but such a trust will arise whenever 
circumstances under which property was acquired made 
it inequitable that it should be retained by him who 
holds the legal title. Constructive trusts have been said 
to arise through the application of the doctrine of eq
uitable estoppel, or under the broad doctrine that equity 
regards and treats as done what in good conscience 
ought to be done, and such trusts are also known as 
"trusts ex maleficio" or "ex delicto" or "involuntary 
trusts" and their forms and varieties are practically 
without limit, being raised by courts of equity whenever 
it becomes necessary to prevent a failure of justice. See 
also Involuntary trust; Trust ex maleficio, below. 
Contingent trust. An express trust depending for its 
operation upon a future event. 
Creation of trust. A trust may be created by: (a) a 
declaration by the owner of property that he holds it as 
trustee for another person; or (b) a transfer inter vivos 
by the owner of property to another person as trustee 
for the transferor or for a third person; or (c) a transfer 
by will by the owner of property to another person as 
trustee for a third person; or (d) an appointment by one 
person having a power of appointment to another person 
as trustee for the donee of the power or for a third 
person; or (e) a promise by one person to another person 
whose rights thereunder are to be held in trust for a 
third person. Restatement, Second, Trusts § 17. 
Credit trust. See Bypass trust, above. 
Declaration of trust. See Declaration. 
Deed of trust. See Deed. 
Directory trust. One which is not completely and finally 
settled by the instrument creating it, but only defined in 
its general purpose and to be carried into detail accord
ing to later specific directions. 
Direct trust. An express trust, as distinguished from a 
constructive or implied trust. See Express trust below. 
Discretionary trust. Trust in which trustees have discre
tion as to types of investment and also as to whether 
and when distributions may be made to beneficiaries. 
Trusts under which the trustee or another party has the 
right to accumulate (rather than pay out) the income for 
each year. Depending on the terms of the trust instru
ment, such income may be accumulated for future distri
butions to the income beneficiaries or added to corpus 
for the benefit of the remainderperson. 
Dry trust. One which merely vests the legal title in the 
trustee, and does not require the performance of any 
active duty on his part to carry out the trust. 
Educational trusts. Trusts for the founding, endowing, 
and supporting schools for the advancement of all useful 
branches of learning, which are not strictly private.

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1511 
Equipment trust. Financing method commonly used by 
railroads in which the equipment's title is transferred to 
trustees as security for the financing. 
Estate trust. An estate trust is a trust, for all or part of 
the income of which is to be accumulated during the 
surviving spouse's life and added to corpus, with the 
accumulated income and corpus being paid to the estate 
of the surviving spouse at death. This type of trust is 
commonly used to qualify property for the marital de
duction. 
Executed trust. A trust of which the scheme has in the 
outset been completely declared. A trust in which the 
estates and interest in the subject-matter of the trust 
are completely limited and defined by the instrument 
creating the trust, and require no further instruments to 
complete them. 
Executory trust. One which requires the execution of 
some further instrument, or the doing of some further 
act, on the part of the creator of the trust or of the 
trustee, towards its complete creation or full effect. 
Express active trust. Where will confers upon executor 
authority to generally manage property of estate and 
pay over net income to devisees or legatees, such author
ity creates an "express active trust". 
Express private passive trust. Such exists where land is 
conveyed to or held by one person in trust for another, 
without any power being expressly or impliedly given 
trustee to take actual possession of land or exercise acts 
of ownership over it, except by beneficiary's direction. 
Express trust. A direct trust. A trust created or de
clared in express terms, and usually in writing, as 
distinguished from one inferred by the law from the 
conduct or dealings of the parties. A trust directly 
created for specific purposes in contrast to a construc
tive or resulting trust which arises by implication of law 
or the demands of equity. Trusts which are created by 
the direct and positive acts of the parties, by some 
writing, or deed, or will, or by words expressly or impli
edly evincing an intention to create a trust. Concannon 
v. Concannon, 11 6 R.I. 323, 356 A.2d 487, 49l. 
Fixed trust. A non-discretionary trust in which the 
trustee may not exercise his own judgment. 
Foreign situs trust. A trust which owes its existence to 
foreign law. It is treated for tax purposes as a non-resi
dent alien individual. 
Foreign trust. A trust created and administered under 
foreign law. 
Grantor trust. A trust in which the grantor transfers or 
conveys property in trust for his own benefit alone or for 
himself and another. 
Honorary trust. Trust for specific non-charitable pur
poses where there is no definite ascertainable benefi
ciary and hence unenforceable in the absence of statute. 
Illusory trust. A trust arrangement which takes the 
form of a trust, but because of powers retained in the 
settlor has no real substance and in reality is not a 
TRUST 
completed trust. In re Herron's Estate, Fla.App., 237 
So.2d 563, 566. 
Imperfect trust. An executory trust (q.v.); see also Exe
cuted trust, above. 
Implied trust. A trust raised or created by implication 
of law; a trust implied or presumed from circumstances. 
Constructive and resulting trusts are implied trusts be
cause they arise by implication of law or by demands of 
equity. Such arise by operation of law when the circum
stances of a transaction are such that the court finds it 
inequitable for the legal owner to enjoy the beneficial 
interest. Price v. State, 79 Ill.App.3d 143, 34 Ill.Dec. 
690, 398 N.E.2d 365, 370. 
Indestructible trust. A trust which may not be termi
nated or revoked. See Claflin trust. 
Instrumental trust. See Ministerial trusts, below. 
Insurance trust. A trust, the res of which consists of 
insurance policies or their proceeds. See also Ins urance. 
Inter vivos trust. Trust created by an instrument which 
becomes operative during the settlor's lifetime as con
trasted with a testamentary trust which takes effect on 
the death of the settlor. A Living trust (q.v.). 
Involuntary trust. Involuntary or "constructive" trusts 
embrace all those instances in which a trust is raised by 
the doctrines of equity, for the purpose of working out 
justice in the most efficient manner, when there is no 
intention of the parties to create a trust relation. This 
class of trusts may usually be referred to fraud, either 
actual or constructive, as an essential element. 
Irrevocable trust. Trust which may not be revoked after 
its creation as in the case of a deposit of money by one 
in the name of another as trustee for the benefit of a 
third person (beneficiary). 
Land trust. See Land trust. 
Limited trust. Trust created for a limited period of time 
in contrast to a perpetual trust. 
Liquidation trust. Trust created for purpose of termi
nating a business or other undertaking and for distribut
ing the res. 
Living trust. An inter vivos trust created and operative 
during the lifetime of the settlor and commonly for 
benefit or support of another person. 
Marital deduction trust. A testamentary trust created 
to take full advantage of the marital deduction (q.v.) 
provisions of the Int.Rev.Code. 
Massachusetts or business trusts. See Business; Massa
chus etts trust; Trust estates as business companies. 
Ministerial trusts. (Also called "instrumental trusts.") 
Those which demand no further exercise of reason or 
understanding than every intelligent agent must neces
sarily employ; as to convey an estate. They are a 
species of special trusts, distinguished from discretion
ary trusts, which necessarily require much exercise of 
the understanding.

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Mixed trust. Trusts established to benefit both private 
individuals and charities. Green v. Austin, 222 Ga. 409, 
150 S.E.2d 346. 
Naked trust. A dry or passive trust; one which requires 
no action on the part of the trustee, beyond turning over 
money or property to the cestui que trust. 
Nominee trust. An arrangement for holding title to real 
property under which one or more persons or corpora
tions, pursuant to a written declaration of trust, declare 
that they will hold any property that they acquire as 
trustees for the benefit of one or more undisclosed 
beneficiaries. 
Non-discretionary trust. A fixed trust under which the 
trustees may exercise no judgment or discretion at least 
as to distributions. 
Oral trust. See Oral trust. 
Passive trust. A trust as to which the trustee has no 
active duty to perform. "Passive trust," which equity 
court may terminate before it ends by its terms, is one 
in which the trustee does not have responsibilities or 
discretionary duties to perform. Nickson v. Filtrol 
Corp., DeLCh., 262 A.2d 267, 271. 
Perpetual trust. A trust which is to continue as long as 
the need for it continues as for the lifetime of a benefi
ciary or the term of a particular charity. 
Personal trust. Trusts created by and for individuals 
and their families in contrast to business or charitable 
trusts. 
Pour-over trust. A provision in a will in which the 
testator leaves the residue of his estate to a trustee of a 
living trust for purpose of that pour-over trust. 
Power of appointment trust. Type of trust used to quali
fy property for the marital deduction. Property is left 
in trust for a surviving spouse. The trustee is required 
to distribute income to the spouse for life and the spouse 
is given an unqualified power to appoint the property to 
herself or to her estate. 
Precatory trust. Where words employed in a will or 
other instrument do not amount to a positive command 
or to a distinct testamentary disposition, but are terms 
of entreaty, request, recommendation, or expectation, 
they are termed "precatory words," and from such 
words the law will raise a trust, called a "precatory 
trust," to carry out the wishes of the testator or grantor. 
Private trust. One established or created for the benefit 
of a certain designated individual or individuals, or a 
known person or class of persons, clearly identified or 
capable of identification by the terms of the instrument 
creating the trust, as distinguished from trusts for pub
lic institutions or charitable uses. 
Public trust. One constituted for the benefit either of 
the public at large or of some considerable portion of it 
answering a particular description; public trusts and 
charitable trusts may be considered in general as synon
ymous expressions. See also Charitable trusts, above. 
Q-T IP trust. See that title. 
1512 
Real estate investment trust (REIT). Type of tax shelter 
wherein investors purchase certificates of ownership in 
trust which invests such funds in real estate and then 
distributes profits to investors. 
Reciprocal trust. Trust which one person creates for the 
benefit of another who in turn creates a trust for the 
benefit of the first party. 
Resulting trust. One that arises by implication of law, 
or by the operation and construction of equity, and 
which is established as consonant to the presumed inten
tion of the parties as gathered from the nature of the 
transaction. It arises where the legal estate in property 
is disposed of, conveyed, or transferred, but the intent 
appears or is inferred from the terms of the disposition, 
or from the accompanying facts and circumstances, that 
the beneficial interest is not to go or be enjoyed with the 
legal title. 
Revocable trust. A trust in which the settlor reserves 
the right to revoke. 
Savings bank trust. A Totten trust (q.v.). 
Secret trusts. Where a testator gives property to a 
person, on a verbal promise by the legatee or devisee 
that he will hold it in trust for another person. 
Shifting trust. An express trust which is so settled that 
it may operate in favor of beneficiaries additional to, or 
substituted for, those first named, upon specified contin
gencies. 
Short term trust. Trust which by its terms is to be 
administered for a short period of time and then termi
nated. 
Simple trust. A simple trust corresponds with the an
cient use, and arises where property is simply vested in 
one person for the use of another, and the nature of the 
trust, not being qualified by the settlor, is left to the 
construction of law. A simple trust is a trust which 
provides that all of its income is required to be distribut
ed currently, even if it is not in fact distributed, does not 
provide that any amounts are to be paid, permanently 
set aside, or used for charitable purposes; and does not 
distribute any amount other than current income. 
Simple trusts are those that are not complex trusts. 
Such trusts may not have a charitable beneficiary, accu
mulate income, nor distribute corpus. 
Special trust. One in which a trustee is interposed for 
the execution of some purpose particularly pointed out, 
and is not, as in case of a simple trust, a mere passive 
depositary of the estate, but is required to exert himself 
actively in the execution of the settlor's intention; as, 
where a conveyance is made to trustees upon trust to 
reconvey, or to sell for the payment of debts. 
Special trusts have been divided into (1) ministerial 
(or instrumental) and (2) discretionary. The former, 
such as demand no further exercise of reason or under
standing than every intelligent agent must necessarily 
employ; the latter, such as cannot be duly administered 
without the application of a certain degree of prudence 
and judgment.

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1513 
Spendthrift trust. See Spendthrift trust. 
Split-interest trust. Type of charitable trust commonly 
consisting of a life estate to an individual and a remain
der to a charity. The Tax Reform Act of 1969 has 
placed restrictions on this type of trust. 
Sprinkling trust. When a trustee has the discretion to 
either distribute or accumulate the entity accounting 
income of the trust and to distribute it among the trust's 
income beneficiaries in varying magnitudes, a sprin
kling trust exists. The trustee can "sprinkle" the in
come of the trust. 
Support trust. A trust in which the trustee has the 
power to pay the beneficiary only so much of the trust 
income as is necessary for the beneficiary's support, 
education and maintenance. See also Spendthrift trust, 
above. 
Tentative trust. See Totten trust, below. 
Testamentary trust. Trust created within a will and 
executed with the formalities required of a will in con
trast to an inter vivos trust which is created by the 
grantor during his lifetime. A trust which does not take 
effect until the death of the settlor. Nearly all states 
have adopted the Uniform Testamentary Additions to 
Trust Act. 
Totten trust. Device used to pass property in bank 
account after depositor's death to designated person 
through vehicle of trust rather than through process of 
probate. Reidy v. Almich, 4 Ariz.App. 144, 418 P.2d 
390, 393. It is a tentative trust revocable at will until 
the depositor dies or completes the gift in his lifetime by 
some unequivocal act or declaration such as delivery of 
the passbook or notice to the beneficiary. If the deposi
tor dies before the beneficiary without revocation or 
some decisive act or declaration of disaffirmance the 
presumption arises that an absolute trust was created as 
to the balance on hand at the death of the depositor. 
Transgressive trust. A name sometimes applied to a 
trust which transgresses or violates the rule against 
perpetuities. 
Trust allotments. Allotments to Indians, in which a 
certificate or trust patent is issued declaring that the 
United States will hold the land for a designated period 
in trust for the allottee. U. S. v. Bowling, 256 U.S. 484, 
41 S.Ct. 561, 562, 65 L.Ed. 1054. 
Trust certificate. An obligation issued to finance rail
road equipment and by which title to the equipment is 
held by trustees as security for repayment of the money 
invested. 
Trust company. A corporation formed for the purpose of 
taking, executing, and administering all such trusts as 
may be lawfully committed to it, and acting as testa
mentary trustee, executor, guardian, etc. To these func
tions are sometimes (but not necessarily) added the 
business of acting as fiscal agent for corporations, at
tending to the registration and transfer of their stock 
and bonds, serving as trustee for their bond or mortgage 
creditors, engaging in fiduciary investment and estate 
TRUST 
planning functions, and transacting a �Emeral banking 
and loan business. A bank which is authorized to serve 
in fiduciary capacity as executor, administrator, etc. 
Such companies are commonly associated or combined 
with commercial banks. 
Trust deed. The document by which one creates a trust. 
An indenture by which property is transferred to a 
trust. May also include a deed from the trustees. In 
some states, a mortgage deed. 
A species of mortgage given to a trustee for the 
purpose of securing a numerous class of creditors, as the 
bondholders of a railroad corporation, with power to 
foreclose and sell on failure of the payment of their 
bonds, notes, or other claims. In some of the states, a 
trust deed or deed of trust is a security resembling a 
mortgage, being a conveyance of lands to trustees to 
secure the payment of a debt, with a power of sale upon 
default, and upon a trustee to apply the net proceeds to 
paying the debt and to turn over the surplus to the 
grantor. 
A trust deed on real estate as security for a bond issue 
is, in effect, a mortgage on property executed by the 
mortgagor to a third person as trustee to hold as securi
ty for the mortgage debt as evidenced by the bonds, for 
the benefit of the purchasers of the bonds as lenders. 
See also Deed (Deed of trust); Mortgage. 
Trust deposit. Where money or property is deposited to 
be kept intact and not commingled with other funds or 
property of bank and is to be returned in kind to 
depositor or devoted to particular purpose or require
ment of depositor or payment of particular debts or 
obligations of depositor. Also called special deposit. See 
also Deposit. 
Trust estate. This term may mean either the estate of 
the trustee,-that is, the legal title,-or the estate of the 
beneficiary, or the corpus of the property which is the 
subject of the trust. 
Trust ex delicto. See Trust ex maleficio, below. 
Trust ex maleficio. Where actual fraud is practiced in 
acquiring legal title, the arising trust is referred to as a 
"trust ex maleficio." Andres v. Andres, 1 Ark.App. 75, 
613 S:W.2d 404, 407. 
A "constructive trust," otherwise known as "trust ex 
maleficio," a "trust ex delicto," a "trust de son tort," an 
"involuntary trust" or an "implied trust" is a trust by 
operation of law which arises against one who, by fraud, 
actual or constructive, by duress or abuse of confidence, 
by commission of a wrong or by any form of unconscion
able conduct, artifice, concealment or questionable 
means and against good conscience, either has obtained 
or holds right to property which he ought not in equity 
and good conscience hold and enjoy. Briggs v. Richard
son, App., 288 S.C. 537, 343 S.E.2d 653, 654. See also 
Constructive trust, above. 
Trust fund. A fund held by a trustee for the specific 
purposes of the trust; in a more general sense, a fund 
which, legally or equitably, is subject to be devoted to a 
particular purpose and cannot or should not be diverted

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therefrom. In this sense it is often said that the assets 
of a corporation are a "trust fund" for the payment of its 
debts. See also Trust fund. 
Trust fund doctrine. In substance, where corporation 
transfers all its assets with a view to going out of 
business and nothing is left with which to pay debts, 
transferee is charged with notice of the circumstances of 
the transaction, and takes the assets subject to an eq
uitable lien for the unpaid debts of the transferring 
company; the property of a corporation being a fund 
subject to be first applied to the payment of debts. 
Meikle v. Export Lumber Co., C.C.A.Or., 67 F.2d 301, 
304. 
Under such doctrine, if insolvent corporation's assets 
are distributed among its stockholders before its debts 
are paid, each stockholder is liable to creditors for full 
amount received by him. Scott v. Commissioner of 
Internal Revenue, C.C.A.8, 117 F.2d 36, 39. 
See Common trust fund; Trust fund; Trust fund theory or 
doctrine. 
Trust in invitum. A constructive trust imposed by equi
ty, contrary to the trustee's intention and will, upon 
property in his hands. 
Trust legacy. See Legacy. 
Trust receipt. See Trust receipt. 
Unitrust. A unitrust is a trust from which the trustee is 
required, at least annually, to pay a fixed percentage 
which is not less than five percent of the net fair market 
value of the trust assets, valued annually, to one or 
more beneficiaries, at least one of which is not a charity, 
for life or for a term of years, with an irrevocable 
remainder interest to be held for the benefit of, or paid 
over to, charity. A qualified unitrust must comply with 
the basic statutory requirements of I.R.C. § 664. 
Vertical trust. In antitrust law, a combination which 
gathers together under a single ownership a number of 
businesses or plants engaged in successive stages of 
production or marketing. 
Voluntary trust. An obligation arising out of a personal 
confidence reposed in, and voluntarily accepted by, one 
for the benefit of another, as distinguished from an 
"involuntary" trust, which is created by operation of 
law, According to another use of the term, "voluntary" 
trusts are such as are made in favor of a volunteer, that 
is, a person who gives nothing in exchange for the trust, 
but receives it as a pure gift; and in this use the term is 
distinguished from "trusts for value," the latter being 
such as are in favor of purchasers, mortgagees, etc. A 
"voluntary trust" is an equitable gift, and in order to be 
enforceable by the beneficiaries must be complete. The 
difference between a "g ift inter vivos" and a "voluntary 
trust" is that, in a gift, the thing itself with title passes 
to the donee, while, in a voluntary trust, the actual title 
passes to a cestui que trust while the legal title is 
retained by the settlor, to be . held by him for the 
purposes of the trust or is by the settlor transferred to 
another to hold for the purposes of the trust. 
1514 
Voting trust. A trust which holds the voting rights to 
stock in a corporation. It is a useful device when a 
majority of the shareholders in a corporation cannot 
agree on corporate policy. See also Voting trust. 
Trustee. Person holding property in trust. Restate
ment, Second, Trusts, § 3(3). The person appointed, or 
required by law, to execute a trust. One in whom an 
estate, interest, or power is vested, under an express or 
implied agreement to administer or exercise it for the 
benefit or to the use of another. One who holds legal 
title to property "in trust" for the benefit of another 
person (beneficiary) and who must carry out specific 
duties with regard to the property. The trustee owes a 
fiduciary duty to the beneficiary. Reinecke v. Smith, 
Ill., 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109. 
See also Bare trustee. 
Bankruptcy trustee. See Bankru ptcy proceedings (Bank
ruptcy trustee). 
Bond offering. The bondholders' representative in a 
public debt offering. The trustee is responsible for 
monitoring the borrower's compliance with the terms of 
the indenture. 
Joint trustees. Two or more persons who are intrusted 
with property for the benefit of one or more others. 
Judicial trustee. One appointed by a decree of court to 
execute a trust, as distinguished from one appointed by 
the instrument creating the trust. 
Testamentary trustee. A trustee appointed by or acting 
under a will; one appointed to carry out a trust created 
by a will. The term does not ordinarily include an 
executor or an administrator with the will annexed, or a 
guardian, except when they act in the execution of a 
trust created by the will and which is separable from 
their functions as executors, etc. 
Trustee ad litem. Trustee appointed by a court in 
contrast to a trustee selected by a settlor or executor. 
Trustee de son tort. Person who is treated as a trustee 
because of his wrongdoing with respect to property en
trusted to him or over which he exercised authority 
which he lacked. 
Trustee ex maleficio. A person who, being guilty of 
wrongful or fraudulent conduct, is held by equity to the 
duty and liability of a trustee, in relation to the subject
matter, to prevent him from profiting by his own wrong. 
See Trust (Trust ex maleficio). 
Trustee in bankruptcy. A person in whom the property 
of a debtor is vested in trust for the creditors. See 
Bankruptcy Code, § 321 et seq.; 28 U.S.C.A. § 581 et seq. 
Trustee process. The name given, in certain New Eng
land states, to the process of garnishment or foreign 
attachment. See Garnishment; Process. 
Unit investment trust. A trust established whereby 
funds are pooled and invested in income-producing secu
rities such as bonds, preferred stock, etc. Units of the 
trust are sold to investors who maintain an interest in 
the trust in proportion to their investment.

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1515 
Trusteeship. Fiduciary relationship between trustee 
and beneficiary wherein trustee holds title to property 
for the benefit of the beneficiary. 
Trust estates as business companies. A practice origi
nating in Massachusetts of vesting a business or certain 
real estate in a group of trustees, who manage it for the 
benefit of the beneficial owners; the ownership of the 
latter is evidenced by negotiable (or transferable) shares. 
The trustees are elected by the shareholders, or, in case 
of a vacancy, by the board of trustees. Provision is 
made in the agreement and declaration of trust to the 
effect that when new trustees are elected, the trust 
estate shall vest in them without further conveyance. 
The declaration of trust specifies the powers of the 
trustees. They have a common seal; the board is orga
nized with the usual officers of a board of trustees; it is 
governed by by-laws; the officers have the usual powers 
of like corporate officers; so far as practicable, the 
trustees in their collective capacity, are to carry on the 
business under a specified name. The trustees may also 
hold shares as beneficiaries. Provision may be made for 
the alteration or amendment of the agreement or decla
ration in a specified manner. In Eliot v. Freeman, 220 
V.S. 178, 31 S.Ct. 360, 55 L.Ed. 424, it was held that 
such a trust was not within the corporation tax provi
sions of the tariff act of Aug. 5, 1909. See also Zonne v. 
Minneapolis Syndicate, 220 V.S. 187, 31 S.Ct. 361, 55 
L.Ed. 428. See also Massachusetts trust. 
Trust fund. Money or property set aside as a trust for 
the benefit of another and held by a trustee. The 
majority of states have adopted the V niform Common 
Trust Fund Act. See also Common trust fund; Trust 
(Trust fund; Trust fund doctrine); Trust fund theory or 
doctrine. 
Trust fund theory or doctrine. Generic term used in 
many contexts to describe the imposition of fiduciary 
obligations on persons who control money or property of 
another under certain circumstances. A creature of 
equity which operates to treat officers, directors, or 
majority shareholders of a corporation as holding in 
trust for the benefit of creditors such corporate assets as 
have been improperly appropriated. Whisenhunt v. 
Park Lane Corp., D.C.Tex., 418 F.Supp. 1096, 1098. See 
also Common trust fund; Trust (Trust fund; Trust fund 
doctrine). 
Trust indenture. The document which contains the 
terms and conditions which govern the conduct of the 
trustee and the rights of the beneficiaries. Commonly 
used when a corporation floats bonds. See In denture. 
Trust Indenture Act. Federal Act (1939) designed to 
protect investors in certain types of bonds by requiring 
that the trust indenture be approved by the SEC and 
include certain protective clauses and exclude certain 
exculpatory clauses, and that trustees be independent of 
the issuing company. 15 V.S.C.A. § 77aaa et seq. See 
also Indenture. 
Trust instrument. The formal document which creates 
the trust and contains the powers of the trustees and the 
rights of the beneficiaries. It may be a deed in trust or 
TRUTH-IN-LENDING ACT 
a formal declaration of trust. See also Trust (Trust 
deed). 
Trustis Itrast:;)s/. In old European law, trust; faith; 
confidence; fidelity. 
Trust officer. The official or officer in a trust company 
who has direct charge of funds administered by it in its 
capacity as trustee. 
Trustor. One who creates a trust. Also called settlor. 
Trust property. The property which is the subject mat
ter of the trust. The trust res (q. v.). See also Principal. 
Trust receipt. A pre-V.C.C. security device now gov
erned by Article 9 of the Code. A receipt stating that 
the wholesale buyer has possession of the goods for the 
benefit of the financier. Today there usually must be a 
security agreement coupled with the filing of a financing 
statement. Method of financing commercial transac
tions by means of which title passes directly from manu
facturer or seller to banker or lender who as owner 
delivers goods to dealer in whose behalf he is acting 
secondarily, and to whom title goes ultimately when 
primary right of banker or lender has been satisfied. 
Commercial Credit Corp. v. Bosse, 76 Idaho 409, 283 
P.2d 937, 938. 
Trust res. The property of which the trust consists. It 
may be real or personal and the trustee has legal title. 
See also Principal. 
Trust territory. A territory or colony placed under the 
administration of a country by the Vnited Nations. 
Trusty. A prisoner who, because of good conduct, is 
given some measure of freedom in and around the 
prison. 
Truth. There are three conceptions as to what consti
tutes "truth": agreement of thought and reality; even
tual verification; and consistency of thought with itself. 
For "Fact" and "truth" distinguished, see Fact. 
Truth-in-Lending Act. The purpose of the Truth-in
Lending Act (15 V.S.C.A. § 1601 et seq.) is to assure that 
every customer who has need for consumer credit is 
given meaningful information with respect to the cost of 
that credit. In most cases the credit cost must be 
expressed in the dollar amount of finance charges, and 
as an annual percentage rate computed on the unpaid 
balance of the amount financed. Other relevant credit 
information must also be disclosed so that the customer 
may compare the various credit terms available to him 
from different sources and avoid the uninformed use of 
credit. The Act further provides a customer the right, 
in certain circumstances, to cancel a credit transaction 
which involves a lien on his residence. The intent of 
the Act is to promote the informed use of consumer 
credit. Adiel v. Chase Fed. Sav. & Loan Ass'n, C.A.Fla., 
810 F.2d 1051, 1054. The requirements of the Act are 
implemented by Regulation Z of the Federal Reserve 
Board, 12 CFR pt. 226. Many states have their own 
Truth-in-Lending Acts, e.g., Mass.G.L. ch. 140D. See 
also Consumer Credit Protection Act; Regulation Z; Uni
form Consumer Credit Code.

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TRY 
Try. To examine judicially. To examine and investigate 
a controversy, by the legal method called "trial," for the 
purpose of determining the issues it involves. 
Tsar. The less common spelling of "czar" (q.v.). 
TSCA. Toxic Substances Control Act. 42 U.S.C.A. 
§ 2601 et seq. 
Tuas res tibi habeto It(y)uw�s riyz tibay h�biytow/. 
Lat. Have or take your things to yourself. The form of 
words by which, according to the old Roman law, a man 
divorced his wife. 
Tub. In mercantile law, a measure containing sixty 
pounds of tea, and from fifty-six to eighty-six pounds of 
camphor. 
Tub-man. In English law, a barrister who has a pre-au
dience in the Court of Exchequer, and also one who has 
a particular place in court. Such ceased to exist in 
1873. See also Postman. 
Tuchas Ituwchas/. In Spanish law, objections or excep
tions to witnesses. 
Tucker Act. The Tucker Act, which was passed in 1887, 
was a response by Congress to the inadequacies of the 
original Court of Claims legislation. By this act, the 
jurisdiction of the court was extended to include claims 
founded upon the Constitution, act of Congress, or exec
utive department regulation, as well as claims for liqui
dated or unliquidated damages in cases not sounding in 
tort, in addition to all claims within the scope of the 
earlier statutes. The present provisions of the Tucker 
Act are embodied in 28 U.S.C.A. §§ 1346(a)(2), 1491. See 
also Claims Court, U.S.; Court of Claims. 
Tuerto It wert owl. In Spanish law, tort. 
Tullianum It�liyeyn�m/. Lat. In Roman law, that part 
of a prison which was under ground. Supposed to be so 
called from Servius Tullius, who built that part of the 
first prison in Rome. 
Tumbrel It�mbr�lI. A castigatory, trebucket, or dunk
ing stool, anciently used as a punishment for common 
scolds. 
Tumultuous petitioning It�m�ltyuw�s p�tish�niIJ/. Un
der English St. 13 Car. II, St. 1, c. 5, this was a misde
meanor, and consisted in more than twenty persons 
signing any petition to the crown or either house of 
parliament for the alteration of matters established by 
law in church or state, unless the contents thereof had 
been approved by three justices, or the majority of the 
grand jury at assizes or quarter sessions. No petition 
could be delivered by more than ten persons. 
Tungreve It;}IJgriyv I. A town-reeve or bailiff. 
Tunnage. A duty in England anciently due upon all 
wines imported, over and above the prisage and butler
age. 
Turba It;}rb�/. Lat. In the civil law, a multitude; a 
crowd or mob; a tumultuous assembly of persons. Said 
to consist of ten or fifteen, at the least. 
1516 
Turbary It;}rb�riy/. Turbary, or common of turbary, is 
the right or liberty of digging turf upon another man's 
ground. 
Turf and twig. A piece of turf, or a twig or a bough, 
were delivered by the feoffer to the feoffee in making 
livery of seisin. 2 Bl.Comm. 315. 
Tum, or tourn It;}rn/. In English law, the great court
leet of the county, as the old county court was the 
court-baron. Of this the sheriff was judge, and the court 
was incident to his office; wherefore it was called the 
"sheriffs tourn;" and it had its name originally from 
the sheriff making a turn of circuit about his shire, and 
holding this court in each respective hundred. 
Turncoat witness. A witness whose testimony was ex
pected to be favorable but who turns around and be
comes an adverse witness. See also Adverse witness. 
Turned to a right. In English law, this phrase means 
that a person whose estate is divested by usurpation 
cannot expel the possessor by mere entry, but must have 
recourse to an action, either possessory or droitural. 
Turning State's evidence. See State's evidence. 
Turnkey. A person, under the superintendence of a 
jailer, who has the charge of the keys of the prison, for 
the purpose of opening and fastening the doors. 
Turn-key contract. Project in which all owner need do 
is "turn the key" in the lock to open the building with 
nothing remaining to be done and all risks to be as
sumed by contractor. Glassman Const. Co., Inc. v. Ma
ryland City Plaza, Inc., D.C.Md., 371 F.Supp. 1154, 1159. 
Term used in building trade to designate those contracts 
in which builder agrees to complete work of building 
and installation to point of readiness for occupancy. It 
ordinarily means that builder will complete work to 
certain specified point, such as building a complete 
house ready for occupancy as a dwelling, and that build
er agrees to assume all risk. Gantt v. Van der Hoek, 
251 S.C. 307, 162 S.E.2d 267, 270. 
In oil drilling industry a job wherein driller of oil well 
undertakes to furnish everything and does all work 
required to complete well, place it on production, and 
turn it over ready to turn the key and start oil running 
into tanks. Retsal Drilling Co. v. Commissioner of Inter
nal Revenue, C.C.A.Tex., 127 F.2d 355, 357. A turn-key 
contract to drill a well involves the testing of the forma
tion contemplated by the parties and completion of a 
producing well or its abandonment as a dry hole, all 
done for an agreed-upon total consideration, putting the 
risk of rising costs, well trouble, weather, and the like 
upon the driller, but it does not, in the absence of a clear 
expression, require the driller to guarantee a producing 
well. Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 
P.2d 1083, 1091. 
Turntable doctrine. Also termed "attractive nuisance" 
doctrine. This doctrine requires the owner of premises 
not to attract or lure children into unsuspected danger 
or great bodily harm, by keeping thereon attractive 
machinery or dangerous instrumentalities in an exposed 
and unguarded condition, and where injuries have been

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1517 
received by a child so enticed the entry is not regarded 
as unlawful, and does not necessarily preclude a recov
ery of damages; the attractiveness of the machine or 
structure amounting to an implied invitation to enter. 
It imposes a liability on a property owner for injuries to 
a child of tender years, resulting from something on his 
premises that can be operated by such a child and made 
dangerous by him, and which is attractive to him and 
calculated to induce him to use it, where he fails to 
protect the thing so that a child of tender years cannot 
be hurt by it. 
Doctrine is that who maintains or creates upon his 
premises or upon the premises of another in any public 
place an instrumentality or condition which may reason
ably be expected to attract children of tender years and 
to constitute a danger to them is under duty to take the 
precautions that a reasonably prudent person would 
take under similar circumstance, to prevent injury to 
such children. Schock v. Ringling Bros. and Barnum & 
Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d 838, 
843. 
The dangerous and alluring qualities of a railroad 
turntable gave the "attractive nuisance rule" the name 
of "Turntable Doctrine." Louisville & N. R. Co. v. 
Vaughn, 292 Ky. 120, 166 S.W.2d 43, 46. 
See also Attractive nuisance doctrine. 
Turpis It:lrpasl. Lat. In the civil law, base; mean; vile; 
disgraceful; infamous; unlawful. Applied both to 
things and persons. 
Turpis causa It:lrpas k6za/. A base cause; a vile or 
immoral consideration; a consideration which, on ac
count of its immorality, is not allowed by law to be 
sufficient either to support a contract or found an ac
tion; e.g., future illicit intercourse. 
Turpis contractus It:lrpas kantrrektasl. An immoral or 
iniquitous contract. 
Turpis est pars qure non convenit cum suo toto 
It:lrpas est parz kwiy n6n kanviynat k;}m s(y)uwow t6w
tow I. The part which does not agree with its whole is of 
mean account [entitled to small or no consideration]. 
Turpitude It:lrpat(y)uwd/. In its ordinary sense, inher
ent baseness or vileness of principle or action; shameful 
wickedness; depravity. In its legal sense, everything 
done contrary to justice, honesty, modesty, or good mor
als. An action showing gross depravity. Traders & 
General Ins. Co. v. Russell, Tex.Civ.App., 99 S.W.2d 
1079, 1084. 
Moral turpitude. A term of frequent occurrence in 
statutes, especially those providing that a witness' con
viction of a crime involving moral turpitude may be 
shown as tending to impeach his credibility. In general, 
it means neither more nor less than "turpitude," i.e., 
anything done contrary to justice, honesty, modesty, or 
good morals. It is also commonly defined as an act of 
baseness, vileness, or depravity in the private and social 
duties which a man owes to his fellow man or to society 
in general, contrary to the accepted and customary rule 
of right and duty between man and man. Although a 
TUTEUR SUBROGE 
vague term, it implies something immoral in itself, 
regardless of its being punishable by law. Thus exclud
ing unintentional wrong, or an improper act done with
out unlawful or improper intent. It is also said to be 
restricted to the gravest offenses, consisting of felonies, 
infamous crimes, and those that are malum in se and 
disclose a depraved mind. Bartos v. United States Dis
trict Court for District of Nebraska, C.C.A.Neb., 19 F.2d 
722, 724. See also Moral turpitude. 
Turpitudo It;}rpat(y)uwdow/. Lat. Baseness; infamy; 
immorality; turpitude. 
Tuta est custodia qure sibimet creditur It(y)uwta est 
bst6wd(i)ya kwiy sibaymet kredatar I. That guardian
ship is secure which is intrusted to itself alone. 
Tutela It(y)uwtiyla/. Lat. In the civil law, tutelage; 
that species of guardianship which continued to the age 
of puberty; the guardian being called "tutor," and the 
ward, "pupillus. " A power given by the civil law over a 
free person to defend him when by reason of his age he 
is unable to defend himself. A child under the power of 
his father was not subject to tutelage, because not a free 
person, caput liberum. 
Tutelre actio It(y)uwtiyliy reksh(iy)ow/. Lat. In the civil 
law, an action of tutelage; an action which lay for a 
ward or pupil, on the termination of tutelage, against 
the tutor or guardian, to compel an account. 
Tutelage It(y)uwtalaj/. Guardianship; state of being 
under a guardian. See Tutela. 
Tutela legitima It(y)uwtiyla lajitama/. Legal tutelage; 
tutelage created by act of law, as where none had been 
created by testament. 
Tutelam reddere It(y)uwtiylam redariy/. Lat. In the 
civil law, to render an account of tutelage. Tutelam 
reposcere, to demand an account of tutelage. 
Tutela testamentaria It(y)utiyla testamenter(i)ya/. Tes
tamentary tutelage or guardianship; that kind of tute
lage which was created by will. 
Tuteur. In French law, a kind of guardian. 
Tuteur officieux. A person over fifty years of age may 
be appointed a tutor of this sort to a child over fifteen 
years of age, with the consent of the parents of such 
child, or, in their default, the conseil de famille. The 
duties which such a tutor becomes subject to are analo
gous to those in English law of a person who puts 
himself in loco parentis to any one. 
Tuteur subrogee The title of a second guardian appoint
ed for an infant under guardianship. His functions are 
exercised in case the interests of the infant and his 
principal guardian conflict. 
Tutius erratur ex parte mitiore It(y)uwsh(iy)as 
ehreytar eks partiy mishiy6riy I. It is safer to err on the 
gentler side [or on the side of mercy]. 
Tutius semper est errare acquietando, quam in pun
iendo, ex parte misericordire quam ex parte justitire 
It(y)uwsh(iy)as sempar est ehreriy akwliyatrendow, kwrem 
in pyuwniyendow, eks partiy mizarak6rdiyiy kwrem eks

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TUTOR 
partiy j�stishiyiy I. It is always safer to err in acquitting 
than punishing, on the side of mercy than on the side of 
justice. 
Tutor It(y)uwt�r/. One who teaches, usually a private 
instructor. State ex reI. Veeder v. State Board of Edu
cation, 97 Mont. 121, 33 P.2d 516, 522. 
In the civil law, this term corresponds nearly to 
"guardian" (i.e., a person appointed to have the care of 
the person of a minor and the administration of his 
estate), except that the guardian of a minor who has 
passed a certain age is called "curator," and has powers 
and duties differing somewhat from those of a tutor. 
Tutor alienus It(y)uwt�r eyliyiyn�s/. In English law, 
the name given to a stranger who enters upon the lands 
of an infant within the age of fourteen, and takes the 
profits. He may be called to an account by the infant 
and be charged as guardian in socage. 
Tutor proprius Ityuwt�r pr6wpriy�s/. The name given 
in old English law to one who is rightly a guardian in 
socage, in contradistinction to a tutor alienus. 
Tutorship. The office and power of a tutor. The power 
which an individual, sui juris, has to take care of the 
person of one who is unable to take care of himself. 
There are four sorts of tutorships: Tutorship by nature; 
tutorship by will; tutorship by the effect of the law; 
tutorship by the appointment of the judge. Civ.Code La. 
art. 247. 
Tutorship by nature. Upon the death of either parent, 
the tutorship of minor children belongs of right to the 
other. Upon divorce or judicial separation from bed and 
board of parents, the tutorship of each minor child 
belongs of right to the parent under whose care he or 
she has been placed or to whose care he or she has been 
entrusted; however, if the parents are awarded joint 
custody of a minor child, then the cotutorship of the 
minor child shall belong to both parents with equal 
authority, privileges, and responsibilities, unless mod
ified by order of the court or by an agreement of the 
parents, approved by the court awarding joint custody. 
In the event of the death of a parent to whom joint 
custody had been awarded, the tutorship of the minor 
children of the deceased belongs of right to the surviving 
parent. All those cases are called tutorship by nature. 
Civ.Code La. art. 250. 
Tutorship by will. The right of appointing a tutor, 
whether a relation or a stranger, belongs exclusively to 
the father or mother dying last. This is called "tutor
ship by will," because generally it is given by testament; 
but it may likewise be given by any declaration by the 
surviving father or mother, or the parent who is the 
curator of the other spouse, executed before a notary 
and two witnesses. Civ.Code La. art. 257. 
Tutrix It(y)uwtriks/. A female tutor. 
T.V.A. Tennessee Valley Authority. 
Twa night gest Ituwnayt gestl. In Saxon law, a guest 
on the second night. By the laws of Edward the Confes
sor it was provided that a man who lodged at an inn, or 
1518 
at the house of another, should be considered, on the 
first night of his being there, a stranger (uncuth); on the 
second might, a guest; on the third night, a member of 
the family. This had reference to the responsibility of 
the host or entertainer for offenses committed by the 
guest. 
Twelfhindi. The highest rank of men in the Saxon 
government, who were valued at 1200s. If any injury 
were done to such persons, satisfaction was to be made 
according to their worth. 
Twelfth Amendment. Amendment to the U.S. Consti
tution (1804) which altered the method of voting in 
presidential elections by requiring each elector to vote 
for President and Vice President on separate ballots 
instead of voting for two persons for President on single 
ballot as before. 
Twelve-day writ. A writ issued under the English St. 
18 & 19 Vict., C. 67, for summary procedure on bills of 
exchange and promissory notes, abolished by rule of 
court in 1880. 
Twelvemonth Itwelvm�nel. This term (in the singular 
number), includes all the year; but twelve months are to 
be computed according to twenty-eight days for every 
month. 
Twelve-month bond. Twelve-month bond, under stat
ute effective Jan. 20, 1837 (Hartley's Dig. art. 1277), had 
a double character, first as an obligation known to the 
Spanish civil law, and second, as a summary statutory 
judgment, with the force and effect of any other judg
ment of a court of competent jurisdiction; it being also a 
consent judgment. 
Twelve Tables. The earliest statute or code of Roman 
law, framed by a commission of ten men, B.C. 450, upon 
the return of a commission of three who had been sent 
abroad to study foreign laws and institutions. The 
Twelve Tables consisted partly of laws transcribed from 
the institutions of other nations, partly of such as were 
altered and accommodated to the manners of the Ro
mans, partly of new provisions, and mainly, perhaps, of 
laws and usages under their ancient kings. They 
formed the source and foundation for the whole later 
development of Roman jurisprudence. They exist now 
only in fragmentary form. See 1 Kent.Comm. 520. 
These laws were substantially a codification, and not 
merely an incorporation, of the customary law of the 
people. There were Greek elements in them, but still 
they were essentially Roman. 
Twentieth Amendment. The so-called lame duck 
Amendment to the U.S. Constitution (1933) which 
changed the beginning of Presidential and Vice-Presi
dential terms from March 4 to January 20, and of 
Congressional terms from March 4 to January 3, there
by eliminating the short session of Congress which had 
formerly convened early in December in even-numbered 
years, and in which a number of Congressmen sat who 
had not been re-elected to office. The Amendment also 
provides for Presidential succession under certain cir
cumstances.

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1519 
Twenty-Fifth Amendment. Amendment to U.S. Consti
tution (1967) which provides for filling vacancy in offices 
of President and Vice-President on the death, removal, 
or resignation of the office holders. 
Twenty-First Amendment. Amendment to the Consti
tution (1933) which repealed Prohibition Amendment 
(18th) but prohibited the importation of intoxicating 
beverages into any State where delivery or use of such 
beverages violated the State's laws. 
Twenty-Fourth Amendment. Amendment to the Con
stitution (1964) which prohibits federal or State denial of 
right to vote in any primary or other election for federal 
elective officers because of the prospective voter's failure 
to pay any poll tax or other tax. See Poll-tax. 
Twenty-Second Amendment. Amendment to the Con
stitution (1951) which prevents any person from being 
elected President more than twice, or, if he has succeed
ed to the Presidency before the midpoint of his predeces
sor's term, from being elected more than once. 
Twenty-Sixth Amendment. Amendment to U.S. Con
stitution (1971) which established voting age at 18. 
Twenty-Third Amendment. Amendment to the Consti
tution (1961) which allots to the District of Columbia 
presidential electors, to be appointed as Congress di
rects, equal in number to those of a State of equivalent 
population but never more than the number of electors 
allotted to the least populous State. 
Twice in jeopardy. See Jeopardy; Once in jeopardy. 
Twisting. Colloquially, in insurance, the misrepresenta
tion or misstatements of fact or incomplete comparison 
of policies to induce the insured to give up a policy in 
one company for the purpose of taking insurance in 
another. Brandt v. Beha, 217 App.Div. 644, 216 N.Y.S. 
178, 179. See also Misrepresentation. 
Two-dismissal rule. The rule providing that a notice of 
dismissal operates with prejudice when filed by a claim
ant who has in any federal or state court previously 
dismissed the same claim by notice of dismissal. Fed.R. 
Civil P. 41(a)(1). 
Two issue rule. Under this rule, whenever multiple 
issues are submitted to a jury for resolution in a general 
verdict and one of them is free from prejudicial error, it 
will be presumed that all issues were decided in favor of 
prevailing party and a judgment will be affirmed. Bar
housh v. Louis By and Through Julien, Fla.App. 4 Dist., 
452 So.2d 1075, 1076. This rule is also a short-cut way 
of stating that in perjury trial, evidence must consist of 
something more convincing than one man's word 
against another's. U.S. v. Beach, C.A.Va., 296 F.2d 153, 
155. 
Two witness rule. This rule requires that falsity ele
ment of a perjury conviction be supported either by 
direct testimony of two witnesses or by direct testimony 
of one witness plus independent corroborating evidence. 
People v. Fueston, Colo.App., 717 P.2d 978, 990. See also 
Treason. 
TZAR 
Twyhindi. The lower order of Saxons, valued at 200s. in 
the scale of pecuniary mulcts inflicted for crimes. See 
Twelfhindi. 
Tyburn ticket Itayb�rn tik�t/. In old English law, a 
certificate which was given to the prosecutor of a felon 
to conviction. By the 10 & 11 Will. III, c. 23, the 
original proprietor or first assignee of such certificate is 
exempted from all parish and ward offices within the 
parish or ward where the felony was committed. 
Tyhtlan. In Saxon law, an accusation, impeachment, or 
charge of any offense. 
Tying. A term which, as used in a contract of lease of 
patented machinery means that the lessee has secured 
only limited rights of use, and that if he exceeds such 
limited rights by agreeing not to use the machines of 
others he may lose his lease. See also Tying arrange
ment. 
Tying arrangement. A condition imposed by a seller or 
lessor that a buyer or lessee may obtain a desired 
product (the "tying" product) only if it also agrees to 
take an additional product (the "tied" product), which 
may or may not be desired. Some tying arrangements 
violate either § 3 of the Clayton Act or § 1 of the 
Sherman Act. See also Reciprocal dealing arrangement; 
Tied product. 
Variable proportion tying arrangement. A tying ar
rangement in which different buyers use different 
amounts of the tied product in proportion to their use of 
the tying product. For example, an arrangement in 
which the lessor of photocopy machines requires all 
lessees to purchase their photocopying paper from the 
lessor. Commonly used by lessors as price discrimina
tion devices. 
Tylwith. Brit. A tribe or family branching or issuing 
out of another. 
Tymbrella Itimbrel�/. In old English law, a tumbrel, 
castigatory, or ducking stool, anciently used as an in
strument of punishment for common scolds. 
Tyranny Itihr�niy I. Arbitrary or despotic government; 
the severe and autocratic exercise of sovereign power, 
either vested constitutionally in one ruler, or usurped by 
him by breaking down the division and distribution of 
governmental powers. 
Tyrant Itayr�ntl. A despot; a sovereign or ruler, legit
imate or otherwise, who uses his power unjustly and 
arbitrarily, to the oppression of his subjects. 
Tyrra, or toira Itihr�/. A mount or hill. 
Tythe ItayOi. Tithe, or tenth part. 
Tything ItayoiIJ/. A company of ten; a district; a tenth 
part. See Tithing. 
Tzar Itsar/zar/, Tzarina Itsariyn�/z�riyn�/. Formerly, 
the emperor and empress of Russia. See Czar.

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u 
V.B. An abbreviation for "Upper Bench." 
Uberrima fides /yuwbehr;}m;} faydiyz/. Lat. The most 
abundant good faith; absolute and perfect candor or 
openness and honesty; the absence of any concealment 
or deception, however slight. A phrase used to express 
the perfect good faith, concealing nothing, with which a 
contract must be made; for example, in the case of 
insurance, the insured must observe the most perfect 
good faith towards the insurer. Gulfstream Cargo, Ltd. 
v. Reliance Ins. Co., C.A.Fla., 409 F.2d 974, 981. Con
tracts of life insurance are said to be "uberrimre fidre" 
when any material misrepresentation or concealment is 
fatal to them. 
Ubi aliquid conceditur, conceditur et id sine quo res 
ipsa esse non potest /yuwbay rel;}kw;}d k;}nsiyd;}t;}r, 
k;}nsiyd;}t;}r et id sayniy kwow riyz ips;} esiy non 
powt;}st/. When anything is granted, that also is grant
ed without which the thing granted cannot exist. 
Ubi aliquid impeditur propter unum, eo remoto, tolli
tur impedimentum /yuwbay rel;}kw;}d impiyd;}t;}r 
propt;}r yuwn;}m, iyow r;}mowtow, tobt;}r imped;}men
tow /. Where anything is impeded by one single cause, 
if that be removed, the impediment is removed. 
Ubi cessat remedium ordinarium, ibi decurritur ad 
extraordinarium /yuwbay ses;}t r;}miyd(i)y�m, 
ord;}neriy;}m, aybay d;}k�hr;}t;}r red ekstr(;})ord;}neriy;}m/. 
Where the ordinary remedy fails, recourse must be had 
to an extraordinary one. 
Ubi culpa est, ibi prena subesse debet /yuwbay k�lp;} 
est, aybay piyn;} s�besiy deb;}t/. Where the crime is 
committed, there ought the punishment to be under
gone. 
Ubicunque est in juria, ibi damnum sequitur 
/yuwbayk�IJkwiy est injuriy;}, aybay dremn;}m sek
w;}t;}r/. Wherever there is a wrong, there damage fol
lows. 
Ubi damna dantur, victus victori in expensis con
demnari debet /yuwbay dremn;} drent;}r vikt;}s viktoray 
in ;}kspens;}s kond;}mneray deb;}t/. Where damages are 
given, the vanquished party ought to be condemned in 
costs to the victor. 
Ubi eadem ratio, ibi eadem lex; et de similibus idem 
est judicium /yuwbay iyeyd;}m reysh(iy)ow, aybay iyey
and the same judgment should be rendered on the same 
state of facts. 
Ubi est forum, ibi ergo est jus /yuwbay est for;}m, 
aybay �rgow est j�s/. The law of the forum governs. 
Ubi est specialis, et ratio generalis generaliter acci· 
pienda est /yuwbay est speshiyeybs, et reysh(iy)ow 
jEm;}reyl;}s jen;}reyl;}t;}r ;}ksipiyend;} est/. See Ubi lex est 
special is, etc. 
Ubi et dantis et accipientis turpitudo versatur, non 
posse repeti dicimus; quotiens autem accipientis 
turpitudo versatur, repeti posse /yuwbay et drent;}s et 
;}ksipiyent;}s t�rp;}t(y)uwdow v;}rseyt;}r, non posiy r�petay 
dis;}m�s; kwowsh;}nz ot;}m �ksipiyent;}s t�rp;}t(y)uwdow 
v;}rseyt;}r, repetay posiy/. Where there is turpitude on 
the part of both giver and receiver, we say it cannot be 
recovered back; but as often as the turpitude is on the 
side of the receiver [alone] it can be recovered back. 
Ubi factum nullum, ibi fortia nulla /yuwbay frekt;}m 
n�l;}m, aybay forsh(iy):) n�l;}/. Where there is no princi
pal fact, there can be no accessory. Where there is no 
act, there can be no force. 
Ubi jus, ibi remedium /yuwbay j�s, aybay 
r;}miyd(i)y;}m/ . Where there is a right, there is a reme
dy. It is said that the rule of primitive law was the 
reverse: Where there is a remedy, there is a right. 
Ubi jus incertum, ibi jus nullum /yuwbay j�s ins�rd;}m, 
aybay j�s n�l;}m/. Where the law is uncertain, there is 
no law. 
Ubi lex aliquem cogit ostendere causam, necesse est 
quod causa sit justa et legitima /yuwbay leks 
rebkw;}m ko(w)j;}t ostend;}riy koz;}m, n;}sesiy est kwod 
koz;} sit j�st;} et l;}jit;}m;}/. Where the law compels a 
man to show cause, it is necessary that the cause be just 
and lawful. 
Ubi lex est specialis, et ratio ejus generalis, generali
ter accipienda est /yuwbay leks est speshiyeyl;}s, et 
reysh(iy)ow iyj;}s, jen;}reyl;}t;}r ;}ksipiyend;} est/. Where 
the law is special, and the reason of it general, it ought 
to be taken as being general. When the reason for a 
particular legislative act and acts of the same general 
character is the same, they should have the same effect. 
Guile v. La Crosse Gas & Electric Co., 145 Wis. 157, 130 
N.W. 234, 241. 
d;}m leks; et diy s;}mil;}b;}s ayd;}m est juwdish(iy);}m/. Ubi lex non distinguit, nec nos distinguere debemus 
Where the same reason exists, there the same law /yuwbay leks non d�stiIJgw;}t, nek nows d;}stiIJgw;}riy 
prevails; and, of things similar, the judgment is similar. d;}biym;}s/. Where the law does not distinguish, neither 
Where there is the same reason, there is the same law, ought we to distinguish. 
1520

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1521 
Ubi major pars est, ibi totum Iyuwbay meyj�r parz est, 
aybay towt�m/. Where the greater part is, there the 
whole is. That is, majorities govern. 
Ubi matrimonium, ibi dos Iyuwbay mretr�mown(i)y�m, 
aybay dows/. Where there is marriage, there is dower. 
Ubi non adest norma legis, omnia quasi pro suspectis 
habenda sunt Iyuwbay non lMest norm� liyj�s, 
omn(i)y� kweysay prow s�spekt�s h�bend� s�nt/. When 
the law fails to serve as a rule, almost everything ought 
to be suspected. 
Ubi non est annua renovatio, ibi decimce non debent 
solvi Iyuwbay non est renyuw::l ren::lveysh(iy)ow, ay-. 
bay des::lmiy non deb::lnt solvay I. Where there is no 
annual renovation, there tithes ought not to be paid. 
Ubi non est condendi auctoritas, ibi non est parendi 
necessitas Iyuwbay non est k::lntenday oktohr::ltres, ay
bay non est p::lrenday n::lses::ltres/. Where there is no 
authority for establishing a rule, there is no necessity of 
obeying it. 
Ubi non est directa lex, standum est arbitrio judicis, 
vel procedendum ad similia Iyuwbay non est d::lrekt::l 
leks, strend::lm est arbitriyow juwd::ls::lS, vel 
prows::ldend::lm red s::lmil(i)Y::l/. Where there is no direct 
law, the opinion of the judge is to be taken, or references 
to be made to similar cases. 
Ubi non est lex, ibi non est transgressio, quoad mun
dum Iyuwbay non est leks, aybay non est 
trcenzgresh(iy)ow, kwowced m;}nd::lm/. Where there is no 
law, there is no transgression, so far as relates to the 
world. 
Ubi non est manifesta in justitia, judices habentur 
pro bonis viris, et judicatum pro veritate Iyuwbay 
non est mren::lfest::l inj::lstish(iY)::l, juwd::lsiyz h::lbent::lr 
prow bown::ls vir::ls, et juwd::lkeyt::lm prow vehr::lteytiy I. 
Where there is no manifest injustice, the judges are to 
be regarded as honest men, and their judgment as truth. 
Ubi non est principalis, non potest esse accessorius 
Iyuwbay non est prins::lpeyl::ls, non powtest esiy 
reks::lsoriY::ls/. Where there is no principal, there cannot 
be an accessory. 
Ubi nulla est conjectura quce ducat alio, verba intelli
genda sunt ex proprietate, non grammatica, sed 
populari ex usu Iyuwbay n;}l::l est konjekt(y)ur::l kwiy 
d(y)uwk::lt eyl(i)yow, v;}rb::l intel::ljend::l S:lnt eks 
pr::lpraY::lteytiy, non gr::lmret::lk::l, sed popY::lleray eks yuws
yuw/. Where there is nothing to call for a different 
construction, [the] words [of an instrument] are to be 
understood, not according to their strict grammatical 
meaning, but according to their popular and ordinary 
sense. 
Ubi nullum matrimonium, ibi nulla dos Iyuwbay 
n;}l::lm mretr::lmown(i)Y::lm, aybay n;}l::l dows/. Where 
there is no marriage, there is no dower. 
Ubi periculum, ibi et lucrum collocatur Iyuwbay 
p::lrik(y)::lbm, aybay et l(y)uwkr::lm kol::lkeyt::lr/. He at 
whose risk a thing is, should receive the profits arising 
from it. 
Black's Law Dictionary 6th Ed.-33 
UFrA 
Ubi pugnantia inter se in testamenw juberentur, 
neutrum ratum est lyUwbay p�gnrensh(iy)� int�r siy in 
test::lmentow juwb�rent�r, n(y)uwtr::lm reyt�m est/. 
Where repugnant or inconsistent directions are con
tained in a will, neither is valid. 
Ubi quid generaliter conceditur inest hcec exceptio, si 
non aliquid sit contra jus fasque Iyuwbay kwid 
jen::lreyl::lt::lr k�nsiyd�t::lr inest hiyk ::lksepsh(iy)ow, say 
non rel::lkw::ld sit kontr::l j�s freskwiy/. Where a thing is 
conceded generally [or granted in general terms], this 
exception is implied: that there shall be nothing con
trary to law and right. 
Ubi quis delinquit, ibi punietur Iyuwbay kwis 
d::llil)kw::lt, aybay pyuwniyiyt::lr/. Where a man offends, 
there he shall be punished. In cases of felony, the trial 
shall be always by the common law in the same place 
where the offense was, and shall not be supposed in any 
other place. 
Ubiquity Iyuwbikw::ltiy/. Omnipresence; presence in 
several places, or in all places, at one time. A fiction of 
English law is the "legal ubiquity" of the sovereign, by 
which he is constructively present in all the courts. 1 
Bl.Comm. 270. 
Ubi re vera Iyuwbay riy vir::l/. Where in reality; when 
in truth or in point of fact. 
Ubi supra Iyuwbay s(y)uwpr::l/. Lat. Where above men
tioned. 
Ubi verba conjuncta non sunt sufficit alterutrum 
esse factum Iyuwbay v;}rb::l k::lnj;}l)kt::l non s:lnt sM::ls::lt 
olt::lr(y)uwtr::lm esiy frekt::lm/. Where words are not con
joined, it is enough if one or other be complied with. 
Where words are used disjunctively, it is sufficient that 
either one of the things enumerated be performed. 
U.C. An abbreviation for "Upper Canada," used in citing 
the reports. 
U.C.C. See Uniform Commercial Code. 
U.C.C.C. See Un iform Consumer Credit Code. 
U.C.C.J.A. Uniform Child Custody Jurisdiction Act. 
See Custody of children. 
U.C.M.J. Uniform Code of Military Justice; consisting 
of rules of conduct and criminal behavior for members 
of the Armed Forces. See Code of Military Justice. 
UCP. See Uni form Customs and Practice for Commercial 
Documentary Credits. 
U.C.R. Uniform Crime Reports as compiled by the Fed
eral Bureau of Investigation. 
UDITPA. The Uniform Division of Income for Tax 
Purposes Act has been adopted in some form by many of 
the states. The Act develops criteria by which the total 
taxable income of a multistate corporation can be as
signed to specific states. 
UFCA. Uniform Fraudulent Conveyance Act, which 
many states have adopted. See Fraudulent conveyance. 
UFTA. Uniform Fraudulent Transfer Act (1984), which 
is the successor to the UFCA.

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UKAAS, UKASE 
Ukaas, ukase /uwkas/yuwkeyz/. Originally, a law or 
ordinance made by the czar of Russia. 
Hence, any official decree or proclamation. 
ULA. See Uniform Laws or Acts. 
Ullage /�l;;)j/. In commercial law, the amount wanting 
when a cask, on being gauged, is found not to be com
pletely full. 
Ulna ferrea /�ln;;) fehriy;;)/. L. Lat. In old English law, 
the iron ell; the standard ell of iron, kept in the excheq
uer for the rule of measure. 
Ulnage / �ln;;)j/. Alnage. See Alnager. 
Ulterior. Beyond what is manifest, seen or avowed, 
intentionally kept concealed. Harding v. McCullough, 
236 Iowa 556, 19 N.W.2d 613, 616. 
Ultima ratio /�lt;;)m;;) reysh(iy)ow/. Lat. The last argu
ment; the last resort; the means last to be resorted to. 
Ultimate. At last, finally, or at the end. The last in the 
train of progression or sequence tended toward by all 
that precedes; arrived at as the last result; final. Tex
as Employers Ins. Ass'n v. Reed, Tex.Civ.App., 150 
S.W.2d 858, 862. 
Ultimate facts. Issuable facts; facts essential to the 
right of action or matter of defense. Allied Stores of 
Texas, Inc. v. McClure, Tex.Civ.App., 595 S.W.2d 165, 
169. Facts necessary and essential for decision by court. 
People ex reI. Hudson & M.R. Co. v. Sexton, Sup., 44 
N.Y.S.2d 884, 885. Facts which are necessary to deter
mine issues in case, as distinguished from evidentiary 
facts supporting them. O'Shea v. Hatch, App., 97 N.M. 
409, 640 P.2d 515, 520. The logical conclusions deduced 
from certain primary evidentiary facts. Mining Securi
ties Co. v. Wall, 99 Mont. 596, 45 P.2d 302, 306. Final 
facts required to establish plaintiffs cause of action or 
defendant's defense. Williams v. Pilot Life Ins. Co., 288 
N.C. 338, 218 S.E.2d 368, 371. 
One that is essential to the right of action or matter of 
defense, and the trial court is under the duty of submit
ting only ultimate or controlling issues. Perales v. 
Braslau's Furniture Co., Tex.Civ.App., 493 S.W.2d 638, 
640. 
Ultimate issue. That question which must finally be 
answered as, for example, the def endant's negligence is 
the ultimate issue in a personal injury action. See also 
Ultimate facts. 
Ultimatum / ;}It;;)meyt;;)m/. Lat. The last. The final and 
ultimate proposition made in negotiating a treaty, a 
contract, or the like. The word also means the result of 
a negotiation, and it comprises the final determination 
of a party concerned in the matter in dispute. 
Ultima voluntas testatoris est perimplenda· secun
dum veram intentionem suam I �lt;;)m;;) v;;)l�ntres 
test;;)oor;)s est p;}r;)mplend;) s;)k�nd;)m vir;)m 
intenshiyown;)m s(y)uw;)m/. The last will of a testator 
is to be fulfiUed according to his true intention. 
1522 
Ultimum supplicium / :llt;;)m;;)m s;;)plish(iy);)m/. Lat. 
The last or extreme punishment; the extremity of pun
ishment; the punishment of death. 4 Bl.Comm. 17. 
Ultimum supplicium esse mortem solam interpreta
mur / :llt;;)m;;)m s;;)plish(iy);)m esiy mort;;)m sowl;;)m 
;;)nt;}rpr;;)teym;)r/. The extremest punishment we consid
er to be death alone. 
Ultimus hreres I :llt;;)m;;)s hiriyz/. Lat. The last or re
mote heir; the lord. So called in contradistinction to 
the hreres proximus and the hreres remotior. 
Ultra / :lltr;;)/. Lat. Beyond; outside of; in excess of. 
Damages ultra. Damages beyond a sum paid into court. 
Ultra mare / �ltr;;) meriy / . Beyond sea. One of the old 
essoins or excuses for not appearing in court at the 
return of process. 
Ultra reprises. After deduction of drawbacks; in excess 
of deductions or expenses. 
Ultra vires / :lltr;;) vayriyz/. An act performed without 
any authority to act on subject. Haslund v. City of 
Seattle, 86 Wash.2d 607, 547 P.2d 1221, 1230. Acts 
beyond the scope of the powers of a corporation, as 
defined by its charter or laws of state of incorporation. 
State ex reI. v. Holston Trust Co., 168 Tenn. 546, 79 
S.W.2d 1012, 1016. The term has a broad application 
and includes not only acts prohibited by the charter, but 
acts which are in excess of powers granted and not 
prohibited, and generally applied either when a corpora
tion has no power whatever to do an act, or when the 
corporation has the power but exercises it irregularly. 
People ex reI. Barrett v. Bank of Peoria, 295 Ill.App. 
543, 15 N.E.2d 333, 335. Act is ultra vires when corpo
ration is without authority to perform it under any 
circumstances or for any purpose. By doctrine of ultra 
vires a contract made by a corporation beyond the scope 
of its corporate powers is unlawful. Community Federal 
Sav. & Loan Ass'n of Independence, Mo. v. Fields, C.C.A. 
Mo., 128 F.2d 705, 708. Ultra vires act of municipality 
is one which is beyond powers conferred upon it by law. 
Charles v. Town of Jeanerette, Inc., La.App., 234 So.2d 
794, 798. 
Ultra posse non potest esse, et vice versa / �ltr;) posiy 
non powt;;)st esiy, et vaysiy v:lrs;;)/. What is beyond 
possibility cannot exist, and the reverse [what cannot 
exist is not possible]. 
Umpirage I :lmp;;)r;)j/. The decision of an umpire. The 
word "Umpirage," in reference to an umpire, is the 
same as the word "award," in reference to arbitrators; 
but "award" is commonly applied to the decision of the 
umpire also. 
Umpire /:lmpay(;)r/. Third party selected to arbitrate 
labor dispute. One clothed with authority to act alone 
in rendering a decision where arbitrators have disa
greed. Hughes v. National Fuel Co., 121 W.Va. 392, 3 
S.E.2d 621, 626. When matters in dispute are submitted 
to two or more arbitrators, and they do not agree in 
their decision, it is usual for another person to be called 
in as "umpire," to whose sole judgment it is then re-

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1523 
ferred. An umpire, strictly speaking, makes his award 
independently of that of the arbitrators. See also Arbi
trator; Mediator. 
Un-. A prefix used indiscriminately, and may mean 
simply "not." Thus, "unlawful" means "not authorized 
by law." 
Unable I:�neyb:;)l/. This term, as used in a statute pro
viding that evidence given in a former trial may be 
proved in a subsequent trial, where the witness is un
able to testify, means mentally and physically unable. 
Unaccrued I�n:;)kruwd/. Not become due, as rent on a 
lease. 
Unadjusted I�n:;)j;}st:;)d/. Uncertain; not agreed upon. 
Unalienable I �neyl(i)y:;)n:;)b:;)l/. Inalienable; incapable 
of being aliened, that is, sold and transferred. 
Inalienable rights. Rights which can never be abridged 
because they are so fundamental. 
Unambiguous I �nrembigyuw:;)s/. Susceptible of but one 
meaning. Lawrie v. Miller, Tex.Com.App., 45 S.W.2d 
172, 173. A contract provision is "unambiguous" if its 
meaning is so clear as to preclude doubt by a reasonable 
person. Deerfield Commodities, Ltd. v. Nerco, Inc., 72 
Or.App. 305, 696 P.2d 1096, 1104. 
Unanimity Iyuwn:;)nim:;)tiy/. Agreement of all the per
sons concerned, in holding one and the same opinion or 
determination of any matter or question; as the concur
rence of a jury in deciding upon their verdict or of 
judges in concurring in their decision. See Unanimous. 
Unanimous Iy:;)nren:;)m:;)s/. To say that a proposition 
was adopted by a "unanimous" vote does not always 
mean that every one present voted for the proposition, 
but it may, and generally does, mean, when a viva voce 
vote is taken, that no one voted in the negative. See 
also Un animi ty. 
Una persona vix potest supplere vices duarum 
Iyuwn:;) p:;)rsown:;) viks powt:;)st s:;)pliriy vliysiyz 
d(y)uwer:;)m/. One person can scarcely supply the place 
of two. 
Unascertained. Not certainly known or determined. 
Commissioner of Internal Revenue v. Owens, C.C.A.10, 
78 F.2d 768, 773. See Uncertainty. 
Unascertained duties. Payment in gross, on an esti
mate as to amount, and where the merchant, on a final 
liquidation, will be entitled by law to allowances or 
deductions which do not depend on the rate of duty 
charged, but on the ascertainment of the quantity of the 
article subject to duty. 
Unauthorized. That which is done without authority, 
as a signature or indorsement made without actual, 
implied or apparent authority and this includes a for
gery. U.C.C. § 1-201(43). 
Unauthorized use. The criminal offense of use of a 
motor vehicle without authority of the owner, knowing 
that such use is without his permission. It differs from 
larceny to the extent that in the crime of unauthorized 
use, the government need not prove the intent to de-
UNAVOIDABLE CAUSE 
prive permanently the owner of the vehicle. See Joyrid
ing. 
Unavailability. In law of evidence, on a showing that a 
witness or his testimony is not available, prior reported 
testimony of that witness which can be faithfully repro
duced is admissible as an exception to the hearsay rule. 
A witness is unavailable if he is dead, insane or beyond 
reach of a summons. Unavailability as a witness also 
includes situations in which the declarant is exempted 
by ruling of the court on the ground of privilege from 
testifying concerning the subject matter of the declar
ant's statement. See Fed.Evid.R. 804. 
Unavailability as defined in rule providing for admis
sion of prior testimony, requires, among other things, 
either that the witness be beyond the jurisdiction of the 
court's process to compel his appearance, or that the 
proponent of the prior statement be unable, despite due 
diligence, to obtain the attendance of the witness. Saca
wa v. Polikoff, 150 N.J.S uper. 172, 375 A.2d 279, 283. 
Una voce Iyuwn:;) vowsiy/. Lat. With one voice; unani
mously; without dissent. 
Unavoidable. Not avoidable, incapable of being 
shunned or prevented, inevitable, and necessary. 
Unavoidable accident. An inevitable accident; one 
which could not have been prevented by exercise of due 
care by both parties under circumstances prevailing. 
Woodiwiss v. Rise, 3 Wash.App. 5, 47 1 P.2d 124, 126. 
Not necessarily an accident which was physically impos
sible, in the nature of things for the person to have 
prevented, but one not occasioned in any degree, either 
remotely or directly, by the want of such care or skill as 
the law holds every person bound to exercise. Such type 
accident is present when an event occurs which was not 
proximately caused by the negligence of any party to the 
event. Molina v. Payless Foods, Inc., Tex.Civ.App., 615 
S.W.2d 944, 946. See also Accident; Act of God. 
Unavoidable casualty. An event or accident which 
human prudence, foresight, and sagacity cannot pre
vent, happening against will and without negligence. 
Sabin v. Sunset Garden Co., 184 Okl. 106, 85 P.2d 294, 
295. Within the meaning of statutes in several states 
relating to the vacation of judgments, means some casu
alty or misfortune growing out of conditions or circum
stances that prevented the party or his attorney from 
doing something that, except therefor, would have been 
done, and does not include mistakes or errors of judg
ment growing out of misconstruction or understanding 
of the law, or the failure of parties or counsel through 
mistake to avail themselves of remedies, which if resort
ed to would have prevented the casualty or misfortune. 
If by any care, prudence, or foresight a thing could have 
been guarded against, it is not unavoidable. The term is 
not ordinarily limited to an act of God. See also Acci
dent; Act of God; Unavoidable accident. 
Unavoidable cause. A cause which reasonably prudent 
and careful men under like circumstances do not and 
would not ordinarily anticipate, and whose effects, un
der similar circumstances, they do not and would not 
ordinarily avoid. See also Unavoidable accident.

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UNAVOIDABLE DANGERS 
Unavoidable dangers. This term in a marine policy 
covering unavoidable dangers of the river includes those 
unpreventable by persons operating the vessel, and, like 
the term perils of the sea, includes all kinds of marine 
casualties, thus including accidents in which there is 
human intervention. 
Unborn beneficiaries. Those persons named in a gen
eral way as sharing in an estate or gift though not yet 
born. Commonly, a court appoints a guardian ad litem 
to protect and to represent their interests. 
Unborn child. The individual human life in existence 
and developing prior to birth. 
A child not yet born at the happening of an event. A 
child not born at the time of an injury to his mother 
which causes the child to suffer an injury may recover 
in most jurisdictions after birth if the child were viable 
in his mother's womb at the time of the defendant's 
wrongdoing. In the majority of states, injuries sus
tained by a viable, unborn child which cause the child's 
death may form the basis of a wrongful death action 
brought by the estate of the stillborn child. Amadio v. 
Levin, 509 Pa.199, 501 A.2d 1085, 1087. 
See also Child; Viable child; Wrongful death statutes. 
Unbroken. Continuous, as adverse possession. 
Unceasesath. In Saxon law, an oath by relations not to 
avenge a relation's death. 
Uncertainty. The state or quality of being unknown or 
vague. Such vagueness, obscurity, or confusion in any 
written instrument, e.g., a will, as to render it unintelli
gible to those who are called upon to execute or inter
pret it, so that no definite meaning can be extracted 
from it. See also Ambiguity. 
Unchastity. Impurity in mind and conduct, which may 
exist without actually engaging in unlawful sexual in
tercourse. 
Uncia /;)nshiy;}/. Lat. In Roman law, an ounce; the 
twelfth of the Roman "as," or pound. The twelfth part 
of anything; the proportion of one-twelfth. 2 Bl.Comm. 
462, note m. 
Uncia agri, uncia terrre /;)nsh(iy);} regray, ;)nsh(iy);} teh
riy / . These phrases often occur in the charters of the 
British kings, and signify some measure or quantity of 
land. It is said to have been the quantity of twelve 
modii; each modius being possibly one hundred feet 
square. 
Unciarius hreres / ;}nshiyeriy;}s hiriyz/. Lat. In Roman 
law, an heir to one-twelfth of an estate or inheritance. 
Uncle. The brother of one's father or mother. 
Unclean hands doctrine. Doctrine simply means that 
in equity, as in law, plaintiffs fault, like defendant's, 
may be relevant to question of what, if any, remedy 
plaintiff is entitled to. Shondel v. McDermott, C.A.Ind., 
775 F.2d 859, 868. Principle that one who has unclean 
hands is not entitled to relief in equity. Doctrine means 
no more than that one who has defrauded his adversary 
in the subject matter of the action will not be heard to 
1524 
assert right in equity. Under this doctrine, a court of 
equity may deny relief to a party whose conduct has 
been inequitable, unfair, and deceitful, but doctrine ap
plies only when the reprehensible conduct complained of 
pertains to the controversy at issue. Goben v. Barry, 
234 Kan. 721, 676 P.2d 90, 97. 
Uncollected funds. A credit, such as an increase in the 
balance of a checking or other deposit account in a bank, 
that is given on the basis of a check or other right to 
payment that has not been paid by the drawee or other 
payor. 
Unconditional. Not limited or affected by any condi
tion; applied especially to the quality of an insured's 
estate in the property insured. See Owner (Sole and 
unconditional owner). 
Unconditional discharge. One whose term of confine
ment has expired is unconditionally discharged if there 
are attached no parole provisions to his release. 
A release from liability without any terms or delimit
ing conditions attached. 
Unconscionability. A doctrine under which courts may 
deny enforcement of unfair or oppressive contracts be
cause of procedural abuses arising out of the contract 
formation, or because of substantive abuses relating to 
terms of the contract, such as terms which violate rea
sonable expectations of parties or which involve gross 
disparities in price; either abuse can be the basis for a 
finding of unconscionability. Remco Enterprises, Inc. v. 
Houston, 9 Kan.App.2d 296, 677 P.2d 567, 572. 
Basic test of "unconscionability" of contract is wheth
er under circumstances existing at time of making of 
contract and in light of general commercial background 
and commercial needs of particular trade or case, claus
es involved are so one-sided as to oppress or unfairly 
surprise party. Division of Triple T Service, Inc. v. 
Mobil Oil Corp., 60 Misc.2d 720, 304 N.Y.S.2d 191, 201. 
Unconscionability is generally recognized to include an 
absence of meaningful choice on the part of one of the 
parties, to a contract together with contract terms which 
are unreasonably favorable to the other party. Gordon 
v. Crown Central Petroleum Corp., D.C.Ga., 423 F.Supp. 
58, 61. 
Typically the cases in which unconscionability is 
found involve gross overall one-sidedness or gross one
sidedness of a term disclaiming a warranty, limiting 
damages, or granting procedural advantages. In these 
cases one-sidedness is often coupled with the fact that 
the imbalance is buried in small print and often couched 
in language unintelligible to even a person of moderate 
education. Often the seller deals with a particularly 
susceptible clientele. Kugler v. Romain, 58 N.J. 522, 
279 A.2d 640. 
Uniform Commercial Code. (1) If the court as a matter 
of law finds the contract or any clause of the contract to 
have been unconscionable at the time it was made the 
court may refuse to enforce the contract, or it may 
enforce the remainder of the contract without the un
conscionable clause, or it may so limit the application of 
any unconscionable clause as to avoid any unconsciona-

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1525 
ble result. (2) When it is claimed or appears to the 
court that the contract or any clause thereof may be 
unconscionable the parties shall be afforded a reason
able opportunity to present evidence as to its commer
cial setting, purpose and effect to aid the court in 
making the determination. U.C.C. § 2-302. 
Section 2-302 should be considered in conjunction 
with the obligation of good faith imposed at several 
places in the Code. See e.g. U.C.C. § 1-203. 
Restatement of Contracts. If a contract or term thereof 
is unconscionable at the time the contract is made a 
court may refuse to enforce the contract, or may enforce 
the remainder of the contract without the unconsciona
ble term, or may so limit the application of any uncon
scionable term as to avoid any unconscionable result. 
Restatement, Second, Contracts, § 208. 
Unconscionable bargain or contract. A contract, or a 
clause in a contract, that is so grossly unfair to one of 
the parties because of stronger bargaining powers of the 
other party; usually held to be void as against public 
policy. An unconscionable bargain or contract is one 
which no man in his senses, not under delusion, would 
make, on the one hand, and which no fair and honest 
man would accept, on the other. Hume v. U. S., 132 
U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393. See also Uncon
scionability . 
Unconscious. Not possessed of mind. Wilson v. Ray, 64 
Ga.App. 540, 13 S.E.2d 84:8, 852. A state of mind of 
persons of sound mind suffering from some voluntary or 
involuntary agency rendering them unaware of their 
acts. Greenfield v. Com., 214 Va. 710, 204 S.E.2d 414, 
417. Insensible to the reception of any stimuli and 
incapable of performing or experiencing any controlled 
functions. One who engages in what would otherwise 
be criminal conduct is not guilty of a crime if he does so 
in a state of unconsciousness. See e.g. Calif. Penal Code 
§ 26(4). See also Automatism. 
Unconstitutional. That which is contrary to or in con
flict with a constitution. The opposite of "constitution
al." Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 
1121, 30 L.Ed. 178. 
This word is used in two different senses. One, which 
may be called the English sense, is that the legislation 
conflicts with some recognized general principle. This is 
no more than to say that it is unwise, or is based upon a 
wrong or unsound principle, or conflicts with a generally 
accepted policy. The other, which may be called the 
American sense, is that the legislation conflicts with 
some provision of our written Constitution, which it is 
beyond the power of a legislative body to change. U. S. 
v. American Brewing Co., D.C.Pa., 1 F.2d 1001, 1002. 
See also Un lawful. 
Uncontestable clause. Provision in a life insurance 
policy that prevents the carrier from contesting a claim 
if the policy has been in force for a certain number of 
years (commonly two years). 
Uncontrollable. Incapable of being controlled or ungov
ernable. 
UNDER CONTROL 
Uncontrollable impulse. As an excuse for the commis
sion of an · act otherwise criminal, this term means an 
impulse towards its commission of such fixity and inten
sity that it cannot be resisted by the person subject to it, 
in the enfeebled condition of his will and moral sense 
resulting from derangement or mania. See Insanity. 
Uncore prist /�nkor prist/. L. Fr. Still ready. A 
species of plea or replication by which the party alleges 
that he is still ready to pay or perform all that is justly 
demanded of him. In conjunction with the phrase "tout 
temps prist," it signifies that he has always been and 
still is ready to do what is required, thus saving costs 
where the whole cause is admitted, or preventing delay 
where it is a replication, if the allegation is made out. 3 
Bl.Comm. 303. 
Uncuth /�nkuwO/. In Saxon law, unknown; a stranger. 
A person entertained in the house of another was, on 
the first night of his entertainment, so called. See Twa 
night gest. 
Unde nihil habet / �ndiy nay(h)�l heyb�t/. Lat. In old 
English law, the name of the writ of dower, which lay 
for a widow, where no dower at all had been assigned 
her within the time limited by law. 3 Bl.Comm. 183. 
Under. Sometimes used in its literal sense of below in 
position, beneath, but more frequently in its secondary 
meaning of "inferior" or "subordinate." Also according 
to; as, "under the testimony." 
Under and subject. Words frequently used in convey
ances of land which is subject to a mortgage, to show 
that the grantee takes subject to such mortgage. 
Undercapitalization. A term used in reference to a 
business which does not have enough cash or "capital" 
to effectively carry on the business. See also Thin capi
talization. 
Under-chamberlains of the exchequer. In old English 
law, two officers who cleaved the tallies written by the 
clerk of the tallies, and read the same, that the clerk of 
the pell and comptrollers thereof might see their entries 
were true. They also made searches for records in the 
treasury, and had the custody of Domesday Book. The 
office is now abolished. 
Under color of law. See Color of law. 
Under control. This phrase does not necessarily mean 
the ability to stop instanter under any and all circum
stances, an automobile being "under control" within the 
meaning of the law if it is moving at such a rate, and 
the mechanism and power under such control, that it 
can be brought to a stop with a reasonable degree of 
celerity. And motorist is only bound to use that degree 
of care, caution, and prudence that an ordinarily care
ful, cautious, and prudent man would have used at the 
time under same or similar circumstances in operation 
of said automobile. In general, as applied to street cars 
or railroad trains, the term denotes the control and 
preparation appropriate to probable emergencies. It is 
such control as will enable a train to be stopped prompt
ly if need should arise. It implies the ability to stop

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UNDER CONTROL 
within the distance the track is seen to be clear. See 
also Control; Lookout. 
Undercover agent. A person who works as an agent 
without disclosing his role as an agent. In police work, 
one who makes contact with suspected criminals with
out disclosing his role as an agent of the police. He 
gathers evidence of criminal activity which may later be 
used at trial of the criminals. Such agents are common
ly used in narcotic investigations. See also Informer. 
Undercurrent or underflow of surface stream. Those 
waters which slowly find their way through sand and 
gravel constituting bed of a stream, or lands under or 
immediately adjacent to stream, and are themselves 
part of surface stream. Maricopa County Municipal 
Water Conservation Dist. No. 1 v. Southwest Cotton Co., 
39 Ariz. 65, 4 P.2d 369, 380. 
Underflow. See Un dercurrent or underflow of surface 
stream. 
Underground waters. See Water (Subterranean waters). 
Under herd. A term conveying the idea that a consider
able number of domestic animals are gathered together 
and held together by herders in constant attendance and 
in control of their movements from place to place on a 
public range or within certain areas. 
Under insurance. Insurance coverage in an amount 
less than the value of the property insured or less than 
the risk exposure. 
Underinsured motorist coverage. Such insurance pro
vides for situations in which offending motorist does not 
carry enough coverage to pay damages incurred by the 
injured party. Over half of the states have statutes 
providing for some form of underinsured coverage. It is 
not designed to relieve an insured or his family from the 
failure to purchase adequate liability coverage. Linder 
by Linder v. State Farm Mut. Auto. Ins., Minn., 364 
N.W.2d 481, 483. Compare Uni nsured motorist coverage. 
Under-lease. Exists where lessee lets premises for less 
time than period of his unexpired term; a sub-lease. 
Also the transfer of a part only of the lands, though for 
the whole term. 
Under protest. A payment made or an act done under 
compulsion while the payor or actor asserts that he 
waives no rights by making the payment or by doing the 
act. U.C.C. § 1-207. See Protest. 
Under-sheriff. An officer who acts directly under the 
sheriff, and performs all the duties of the sheriffs office, 
a few only excepted where the personal presence of the 
high-sheriff is necessary. See Delfelder v. Teton Land 
and Investment Co., 46 Wyo. 142, 24 P.2d 702. 
A sheriffs deputy, who, being designated by the sher
iff as an "under sheriff," becomes his chief deputy with 
authority by virtue of his appointment to execute all the 
ordinary duties of the office of sheriff. A distinction is 
sometimes made between this officer and a deputy, the 
latter being appointed for a special occasion or purpose, 
while the former discharges, in general, all the duties 
required by the sheriffs office. See also Deputy. 
1526 
Undersigned, the. The person whose name is signed or 
the persons whose names are signed at the end of a 
document; the subscriber or subscribers. 
Understand. To know; to apprehend the meaning; to 
appreciate; as, to understand the nature and effect of an 
act. International-Great Northern R. Co. v. Pence, Tex. 
Civ.App., 113 S.W.2d 206, 210. To have a full and clear 
knowledge of; to comprehend. Thus, to invalidate a 
deed on the ground that the grantor did not understand 
the nature of the act, the grantor must be incapable of 
comprehending that the effect of the act would divest 
him of the title to the land set forth in the deed. As 
used in connection with the execution of wills and other 
instruments, the term includes the realization of the 
practical effects and consequences of the proposed act. 
See Capacity. 
Understanding. In the law of contracts, an agreement. 
An implied agreement resulting from the express terms 
of another agreement, whether written or oraL An 
informal agreement, or a concurrence as to its terms. A 
valid contract engagement of a somewhat informal char
acter. This is a loose and ambiguous term, unless it be 
accompanied by some expression to show that it consti
tuted a meeting of the minds of parties upon something 
respecting which they intended to be bound. See Agree
ment; Contract. 
Understood. The phrase "it is understood," when em
ployed as a word of contract in a written agreement, has 
the same general force as the words "it is agreed." 
Undertake. To take on oneself; to engage in; to enter 
upon; to take in hand; set about; attempt; as, to 
undertake a task or a journey; and, specifically, to take 
upon oneself solemnly or expressly. To lay oneself 
under obligation or to enter into stipulation; to perform 
or to execute; to covenant; to contract. Hence, to 
guarantee; be surety for; promise; to accept or take 
over as a charge; to accept responsibility for the care of. 
To engage to look after or attend to, as to undertake a 
patient or guest. To endeavor to perform or try; to 
promise, engage, agree, or assume an obligation. 
Undertaker. One who undertakes (to do something). In 
a mechanic's lien statute, the word has been held not to 
include a mere furnisher of material in connection with 
the erection of the building. One whose business is to 
prepare the dead for burial and to take the charge and 
management of funerals. 
Undertaking. A promise, engagement, or stipulation. 
An engagement by one of the parties to a contract to the 
other, as distinguished from the mutual engagement of 
the parties to each other. It does not necessarily imply 
a consideration. In a somewhat special sense, a promise 
given in the course of legal proceedings by a party or his 
counsel, generally as a condition to obtaining some con
cession from the court or the opposite party. A promise 
or security in any form. See Stipulation. 
Under-tenant. A tenant under one who is himself a 
tenant; one who holds by under-lease. See also Under
lease.

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Under the influence of intoxicating liquor or drugs. 
Phrase as used in statutes or ordinances prohibiting the 
operation of motor vehicle by a party under the influ
ence of intoxicating liquor or drugs covers not only all 
well-known and easily recognized conditions and degrees 
of intoxication, but any abnormal mental or physical 
condition which is the result of indulging in any degree 
in intoxicating liquors or drugs, and which tends to 
deprive one of that clearness of intellect and control of 
himself which he would otherwise possess. Any condi
tion where intoxicating liquor or drugs has so far affect
ed the nervous system, brain or muscles of the driver as 
to impair, to an appreciable degree, his ability to operate 
a motor vehicle in the manner that an ordinary, pru
dent and cautious man, in full possession of his faculties, 
using reasonable care, would operate or drive under like 
conditions. Luellen v. State, 64 Okl.Cr. 382, 81 P.2d 
323, 328. A condition that makes a person less able, 
either mentally or physically, or both, to exercise clear 
judgment, and with steady hands and nerves, to operate 
an automobile with safety to himself and to the public. 
Village of Park Forest v. Angel, 37 Ill.App.3d 746, 347 
N.E.2d 278, 285. See also Intoxication. 
Undertook. Agreed; promised; assumed. This is the 
technical word to be used in alleging the promise which 
forms the basis of an action of assumpsit. 
Under-treasurer of England. He who transacted the 
business of the lord high treasurer. 
Under-tutor. In Louisiana, in every tutorship there 
shall be an under-tutor, whom it shall be the duty of the 
judge to appoint at the time letters of tutorship are 
certified for the tutor. It is the duty of the under-tutor 
to act for the minor whenever the interest of the minor 
is in opposition to the interest of the tutor. Civ.Code La. 
Art. 273. 
Underwrite. To insure life or property. See Insurance. 
To agree to sell bonds, etc., to the public, or to furnish 
the necessary money for such securities, and to buy 
those which cannot be sold. An underwriting contract, 
aside from its use in insurance, is an agreement, made 
before corporate shares are brought before the public, 
that in the event of the public not taking all the shares 
of the number mentioned in the agreement, the under
writer will take the shares which the public do not take; 
"underwriting" being a purchase, together with a guar
anty of a sale of the bonds. In re Hackett, Hoff and 
Thiermann, C.C.A.Wis., 70 F.2d 815, 819. See also Offer
ing (Public offerings); Prospectus; Un derwriter. 
Underwriter. Any person, banker, or syndicate that 
guarantees to furnish a definite sum of money by a 
definite date to a business or government entity in 
return for an issue of bonds or stock. A professional 
firm (e.g., investment banker) that handles the market
ing of a corporate or government security offering to the 
public; it either buys all of a new security offering for a 
specified price and then sells it to the public, either 
directly or through dealers, or takes a commission on 
the securities it actually sells. 
UNDIVIDED RIGHT 
Term refers to any person who has purchased from an 
issuer with a view to, or sells for an issuer in connection 
with, the distribution of any security, or participates or 
has a direct or indirect participation in any such under
taking, or participates or has a participation in the 
direct or indirect underwriting of any such undertaking; 
but such term shall not include a person whose interest 
is limited to a commission from an underwriter or 
dealer not in excess of the usual and customary distribu
tor's or seller's commission. Investment Company Act, 
§ 2, 15 U.S.C.A. § 80a-2(40). 
See also Investment banker; Underwrite. 
In insurance, the party assuming a risk in return for 
the payment of a premium (the insurer). 
Underwriting agreement. Agreement between corpo
ration and underwriter covering terms and conditions of 
new issue of securities to be offered to public. See 
Un derwriter. 
Underwriting spread. The difference between the sell
ing price to the public of a new security offering and the 
proceeds received by the offering firm. This is also 
termed an underwriting discount. 
Undisclosed agency. Exists where agent deals with a 
third person without notifying that person of the agen
cy. An agency relationship in which the third party has 
no knowledge of the existence of the agency. 
Undisclosed principal. A principal whose identity is 
unknown by a third person, and the third person has no 
knowledge that the agent is acting in an agency capacity 
at the time the contract is made. See also Principal. 
Undisputed. Not questioned or challenged; uncontest
ed. 
Undisputed fact. An admitted fact, which the court has 
not deemed sufficiently material to add to the finding, or 
has inadvertently omitted from it; a fact not found by 
the court does not become an "undisputed fact," merely 
because one or more witnesses testify to it without direct 
contradiction. 
Undistributed profits. See Undivided profits. 
Undistributed profits tax. Tax imposed on the unrea
sonable accumulation of profits by a corporation which 
has sufficient surplus for expansion and other needs 
beyond the amount which it could but does not pay out 
in dividends. I.R.C. § 531 et seq. See also Accumulated 
earnings tax. 
Undivided interest. See Tenancy (Joint tenancy; Tenan
cy by the entirety; Tenancy in common). 
Undivided profits. Profits which have not been distrib
uted as dividends or set aside as surplus. Current 
undistributed earnings. Edwards v. Douglas, 269 U.S. 
204, 46 S.Ct. 85, 89, 70 L.Ed. 235. 
Undivided right. An undivided right or title, or a title 
to an undivided portion of an estate, is that owned by 
one of two or more tenants in common or joint tenants 
before partition. Held by the same title by two or more

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UNDIVIDED RIGHT 
persons, whether their rights are equal as to value or 
quantity, or unequal. 
Undres /�nd�rz/. In old English law, minors or persons 
under age not capable of bearing arms. 
Undue. More than necessary; not proper; illegal. It 
denotes something wrong, according to the standard of 
morals which the law enforces in relations of men, and 
in fact illegal, and qualifies the purpose with which 
influence is exercised or result which it accomplishes. 
Morris v. Morris, 192 Miss. 518, 6 So.2d 311, 312. 
Undue influence. Persuasion, pressure, or influence 
short of actual force, but stronger than mere advice, 
that so overpowers the dominated party's free will or 
judgment that he or she cannot act intelligently and 
voluntarily, but acts, instead, subject to the will or 
purposes of the dominating party. 
Any improper or wrongful constraint, machination, or 
urgency of persuasion whereby the will of a person is 
overpowered and he is induced to do or forbear an act 
which he would not do or would do if left to act freely. 
Influence which deprives person influenced of free agen
cy or destroys freedom of his will and renders it more 
the will of another than his own. Misuse of position of 
confidence or taking advantage of a person's weakness, 
infirmity, or distress to change improperly that person's 
actions or decisions. 
Term refers to conduct by which a person, through his 
power over mind of testator, makes the latter's desires 
conform to his own, thereby overmastering the volition 
of the testator. Parrisella v. Fotopulos, 111 Ariz. 4, 522 
P.2d 1081, 1083. For purpose of executing instruments, 
such exists when there was such dominion and control 
exercised over mind of person executing such instru
ments, under facts and circumstances then existing, as 
to overcome his free agency and free will and to substi
tute will of another so as to cause him to do what he 
would not otherwise have done but for such dominion 
and control. Board of Regents of University of Tex. v. 
Yarbrough, Tex.Civ.App., 470 S.W.2d 80, 86, 92. 
See also Coercion; Duress. 
Unearned income. See Income. 
Unearned increment. Value due to no labor or expend
iture on the part of an owner but to natural causes 
making an increased demand for it, such as increase of 
population or the general progress of society. Miller v. 
Huntington & Ohio Bridge Co., 123 W.Va. 320, 15 S.E.2d 
687,699. 
Unearned interest. Interest generally received by a 
financial institution in advance of the time in which it is 
earned. 
Unearned surplus. As distinguished from "earned sur
plus" includes: (a) "paid-in surplus" -amounts contrib
uted for or assigned to shares in excess of stated capital 
applicable thereto; (b) "revaluation surplus" -surplus 
arising from a revaluation of assets above cost, and (c) 
"donated surplus"-contributions other than for shares, 
whether from shareholders or others. Conine v. Leik
am, Okl., 570 P.2d 1156, 1160. See also Surplus. 
1528 
Unemployment. State of being not employed; lack of 
employment. A. J. Meyer & Co. v. Unemployment 
Compensation Commission, 348 Mo. 147, 152 S.W.2d 
184, 189. See also Seasonal employment. 
Structural unemployment. Unemployment that results 
when there is a shift in the demand for a particular 
product or service such that certain skills and jobs are 
no longer needed or desired. 
Unemployment tax:. See Tax. 
Unencumbered. Without any impediments, e.g., an un
encumbered title to property. 
Unenforceable contract. A contract having no legal 
effect or force in a court action. See Void contract. 
Compare Valid contract. 
Unequal. Not uniform. Los Angeles County v. Ranso
hoff, 24 Cal.App.2d 238, 74 P.2d 828, 830. Ill-balanced; 
uneven; partial; discriminatory; prejudicial; unfair;
not synonymous with inappropriate, which means unsui
table, unfit, or improper. See Discrimination; Separate 
but equal doctrine. 
Unequivocal. Clear; plain; capable of being understood 
in only one way, or as clearly demonstrated. Free from 
uncertainty, or without doubt; and, when used with 
reference to the burden of proof, it implies proof of the 
highest possible character and it imports proof of the 
nature of mathematical certainty. Berry v. Maywood 
Mut. Water Co. No. 1, 11 Cal.App.2d 479, 53 P.2d 1032. 
See also Un ambiguous. 
Unerring. Incapable of error or failure; certain; sure; 
infallible. 
Unethical. Not ethical; hence, colloquially, not accord
ing to business or professional standards. 
Unethical conduct. See Rules of Professional Conduct. 
Unexceptionable. Without any fault; not subject to 
any objection or criticism. 
Unexpected. Not expected, coming without warning, 
sudden. See Act of God; Accident. 
Unexpired term. Remainder of a period prescribed by 
law or provided for in lease after a portion of such time 
has passed, and phrase is not synonymous with "vacan
cy." State ex reI. Sanchez v. Dixon, La.App., 4 So.2d 
591,596. 
Unfair competition. A term which may be applied 
generally to all dishonest or fraudulent rivalry in trade 
and commerce, but is particularly applied to the practice 
of endeavoring to substitute one's own goods or products 
in the markets for those of another, having an estab
lished reputation and extensive sale, by means of imitat
ing or counterfeiting the name, title, size, shape, or 
distinctive peculiarities of the article, or the shape, 
color, label, wrapper, or general appearance of the pack
age, or other such simulations, the imitation being car
ried far enough to mislead the general public or deceive 
an unwary purchaser, and yet not amounting to an 
absolute counterfeit or to the infringement of a trade
mark or trade-name. Singer Mfg. Co. v. June Mfg. Co.,

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1529 
163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 11 8. Tort involving 
the misappropriation for commercial advantage of a 
benefit or property right belonging to another. Mar
craft Recreation Corp. v. Francis Devlin Co., Inc., D.C. 
N.Y., 506 F.Supp. 1081, 1087. 
The simulation by one person of the name, materials, 
color scheme, symbols, patterns, or devices employed by 
another for purpose of deceiving the public, or substitu
tion of goods, or wares of one person for those of anoth
er, thus falsely inducing purchase of goods and obtaining 
benefits belonging to competitor. Mathews Conveyor 
Co. v. Palmer-Bee Co., C.C.A.Mich., 135 F.2d 73, 84. 
Passing off, or attempting to pass off upon the public the 
goods or business of one person as the goods or business 
of another. Socony-Vacuum Oil Co. v. Oil City Refiners, 
C.C.A.Ohio, 136 F.2d 470, 474. The selling of another's 
product as one's own. A. L. A. Schechter Poultry Corpo
ration v. United States, N.Y., 295 U.S. 495, 55 S.Ct. 837, 
844, 79 L.Ed. 1570. Also, deceitful advertising which 
injures a competitor, bribery of employees, secret re
bates and concessions, and other devices of unfair trade. 
In re Northern Pigment Co., Cust. & Pat.App., 71 F.2d 
447, 453. 
The equitable doctrine of "unfair competition" is not 
confined to cases of actual market competition between 
similar products of different parties, but extends to all 
cases in which one party fraudulently seeks to sell his 
goods as those of another. Wisconsin Electric Co. v. 
Dumore Co., C.C.A.Ohio, 35 F.2d 555, 557. 
Under statute providing for enjoining of unfair compe
tition and defining the same as meaning and including 
"unlawful, unfair or fraudulent business practice" 
courts may enjoin on-going wrongful business conduct in 
whatever context such activity may occur; "unfair com
petition" within such statute is not limited to deceptive 
or fraudulent conduct. As used in statute prohibiting 
unfair competition and defining the same as meaning 
and including "unlawful, unfair or fraudulent business 
practice," "unfair competition" is not confined to prac
tices involving competitive injury but extends to practic
es resulting in injury to consumers. Barquis v. Mer
chants Collection Ass'n of Oakland, Inc., 7 Ca1.3d 94, 101 
Cal.Rptr. 745, 496 P.2d 817, 828, 829. 
Test of "unfair competition" is, not whether distinc
tion between two competing products can be recognized 
when placed alongside each other, but whether, when 
the two products are not viewed together, a purchaser of 
ordinary prudence would be induced by reason of the 
marked resemblance in general effect to mistake one for 
the other despite differences in matters of detail. Ral
ston Purina Co. v. Checker Food Products Co., Mo.App., 
80 S.W.2d 717, 719, 720. 
See also Antitrust acts; Unfair methods of competition; 
Uni form Deceptive Trade Practices Act. 
Unfair hearing. Where the defect, or the practice com
plained of, was such as might have led to a denial of 
justice, or where there was absent one of the elements 
deemed essential to due process. Bufalino v. Irvine, 
C.C.A.Kan., 103 F.2d 830, 832. 
UNFAIR METHODS OF COMPETITION 
Unfair labor practice. Within National Labor Rela
tions Act, it is an unfair labor practice for an employer: 
(1) To interfere with, restrain, or coerce employees in 
the exercise of their rights to self-organization, to form, 
join or assist labor organizations, to bargain collectively 
through representatives of their own choosing, and to 
engage in concerted activities, for the purpose of collec
tive bargaining or other mutual aid or protection. (2) 
To dominate or interfere with the formation or adminis
tration of any labor organization or contribute financial 
or other support to it. (3) By discrimination in regard to 
hire or tenure of employment or any term or condition 
of employment to encourage or discourage membership 
in any labor organization. (4) To discharge or otherwise 
discriminate against an employee because he has filed 
charges or given testimony under the Act. (5) To refuse 
to bargain collectively with the representatives of his 
employees. National Labor Relations Act, §§ 7, 8; 29 
U.S.C.A. §§ 102 et seq., 157, 158. 
The following acts have been held to be unfair labor 
practices under National Labor Relations Act: 
Failure to re-employ striking employees. Western 
Cartridge Co. v. National Labor Relations Board, C.C. 
A.7, 139 F.2d 855, 858. Refusal of employer to reinstate 
union members who were evicted from plant unless 
members would withdraw from union. Refusal of em
ployer to bargain collectively in good faith. National 
Labor Relations Board v. Somerset Shoe Co., C.C.A.1, 
111 F.2d 681, 688, 689. Threats by employer to close if 
union gained a foothold in plant. National Labor Rela
tions Board v. J. G. Boswell Co., C.C.A.9, 136 F.2d 585, 
590, 592, 596. Anti-union statements made by employ
er's supervisory employees during and after strike, to
gether with statement to one of the strikers that he 
would never get a job in that town anymore. N. L. R. B. 
v. Indiana Desk Co., C.C.A.7, 149 F.2d 987, 992, 996. 
Refusal of employer to permit posting of a notice that 
employer would not discriminate against employees who 
wished to join union. National Labor Relations Board v. 
J. G. Boswell Co., C.C.A.9, 136 F.2d 585, 590, 592, 596. 
Discharge of an employee because of membership in or 
activity on behalf of a labor organization. National 
Labor Relations Board v. Bank of America Trust & 
Savings Ass'n, C.C.A.9, 130 F.2d 624, 628, 629. Employ
er's interference with and his dominating formation and 
administration of new labor organization. National La
bor Relations Board v. Swift & Co., C.C.A.8, 116 F.2d 
143, 145, 146. Refusal of employer which had refused to 
bargain with union which had been certified as the 
exclusive bargaining agent. National Labor Relations 
Board v. John Engelhorn & Sons, C.C.A.3, 134 F.2d 553, 
558. Assault by persons employed by manufacturer 
upon union organizers or sympathizers. National Labor 
Relations Board v. Ford Motor Co., C.C.A.6, 11 4 F.2d 
905, 911, 915. Discharge of employee because he would 
not become member of union in accordance with closed 
shop agreement. Virginia Electric & Power Co. v. Na
tional Labor Relations Board, C.C.A.4, 132 F.2d 390, 396. 
Unfair methods of competition. This phrase within 
Federal Trade Commission Act has broader meaning

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UNFAIR METHODS OF COMPETITION 
than common-law term "unfair competition," but its 
scope cannot be precisely defined, and what constitutes 
"unfair methods of competition" must be determined in 
particular instances, upon evidence, in light of particu
lar competitive conditions and of what is found to be a 
specific and substantial public interest. Federal Trade 
Commission Act § 5, 15 U.S.C.A. § 45. A. L. A. Schecht
er Poultry Corporation v. United States, N. Y., 295 U.S. 
495, 55 S.Ct. 837, 844, 79 L.Ed. 1570. 
The term though not defined by the statute is clearly 
inapplicable to practices never heretofore regarded as 
opposed to good morals because characterized by decep
tion, bad faith, fraud, or oppression, or as against public 
policy because of their dangerous tendency unduly to 
hinder competition or create monopoly. The act was 
not intended to fetter free and fair competition as com
monly understood and practiced by honorable opponents 
in trade. In re Amtorg Trading Corporation, Cust. & 
Pat.App., 75 F.2d 826, 830. But a method was said to be 
an unfair method if it does not leave to each actual or 
potential competitor a fair opportunity for play of his 
contending force engendered by an honest desire for 
gain. California Rice Industry v. Federal Trade Com
mission, C.C.A.9, 102 F.2d 716, 721. 
See also Antitrust acts; Unfair competition; Uni form 
Deceptive Trade Practices Act; Vertical restraints of trade. 
Unfair prejudice. Within context of rule regarding 
admission of evidence means undue tendency to suggest 
decision on improper basis, commonly, though not neces
sarily, emotional one. Generally, danger of unfair prej
udice in admission of evidence always exists where it is 
used for something other than its logical probative force. 
Empire Gas Corp. v. American Bakeries Co., N.D.Ill., 
646 F.Supp. 269, 276. Such is caused by evidence that is 
likely to arouse emotional response rather than rational 
decision among jurors. State v. Rice, 48 Wash.App. 7, 
737 P.2d 726, 730. 
Unfair trade practices. See Unfair competition; Unfair 
methods of competition. 
Unfaithful. Characterized by bad faith; not synon
ymous with "illegal," which means unlawful or contrary 
to law, nor with "improper," which, as applied to con
duct, implies such conduct as a man of ordinary and 
reasonable prudence would not, under the circumstanc
es, have been guilty of. 
Unfinished. Not completed; not brought to an end; 
imperfect; the last effort, as a final touch is given to a 
work. Bell & Graddy v. O'Brien, Tex.Civ.App., 113 
S.W.2d 560, 562. 
Unfit. Unsuitable; incompetent; not adapted or quali
fied for a particular use or service; having no fitness. 
As applied to relation of rational parents to their child, 
word "unfit" usually, though not necessarily, imports 
something of moral delinquency, but, unsuitability for 
any reason, apart from moral defects, may render a 
parent unfit for custody. In Interest of Johnson, 214 
Kan. 780, 522 P.2d 330, 334. 
1530 
Unforeseen. Not foreseen, not expected. Pampel v. 
Board of Examiners, 114 Mont. 380, 136 P.2d 991, 994. 
Ungeld. In Saxon law, an outlaw; a person whose 
murder required no composition to be made, or weregeld 
to be paid, by his slayer. 
Unharmed. Within provision of Federal Kidnapping 
Act that death sentence shall not be imposed if kid
napped person has been liberated unharmed, means 
uninjured. Federal Kidnapping Act § 1 et seq., as 
amended, 18 U.S.C.A. § 1201 et seq. See also Robinson 
v. U. S., Ky., 324 U.S. 282, 65 S.Ct. 666, 668, 89 L.Ed. 
944. 
Unica taxatio Iyuwn;}k;} trekseysh(iy)ow/. The obsolete 
language of a special award of venire, where, of several 
defendants, one pleads, and one lets judgment go by 
default, whereby the jury, who are to try and assess 
damages on the issue, are also to assess damages against 
the defendant suffering judgment by default. 
U nifactoral obligation I yuwn;}frekt;}r;}l obl;}geysh;}n/. 
See Contract. 
Unified. Made one. Adams v. Salt River Valley Water 
Users' Ass'n, 53 A:fiz. 374, 89 P.2d 1060, 1071. See 
Consolidation; Joinder; Merger. 
Unified bar. See Integrated bar. 
Unified estate and gift tax. See Unified transfer tax. 
Unified tax credit. A credit against the federal Unified 
Transfer Tax, replacing the former lifetime gift tax 
exemption and the estate tax exemption. I.R.C. 
§§ 2010-2505. 
Unified transfer tax. A federal tax levied on the trans
fer of property through an estate at the time of death or 
on a taxable transfer by gift. The 'estate or the donor is 
responsible for payment of the tax. The unified credit 
may be applied against the unified transfer tax. 
Uniform. Conforming to one rule, mode, pattern, or 
unvarying standard; not different at different times or 
places; applicable to all places or divisions of a country. 
Equable; applying alike to all within a class; sameness. 
A statute is general and uniform in its operation when 
it operates equally upon all persons who are brought 
within the relations and circumstances provided for; 
when all persons under the same conditions and in the 
same circumstances are treated alike, and classification 
is reasonable and naturally inherent in the subject-mat
ter. The words "general" and "uniform" as applied to 
laws have a mer .' ing antithetical to special or discrimi
natory laws. 
The burdens of taxation, to be uniform, must have the 
essential of equality, and must bear alike upon all the 
property within the limits of the unit wherein it is 
lawful to levy taxes for a purpose, whether that unit be 
the state, county, or a municipality. And requirement 
is met when tax is equal on all persons belonging to 
described class on which tax is imposed. With reference 
to locality, a tax is "uniform" when it operates with 
equal force and effect in every place where the subject of 
it is found, and with reference to classification, it is

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1531 
uniform when it operates without distinction or discrim
ination upon all persons composing the described class. 
Uniformity in taxation implies equality in the burden of 
taxation. which cannot exist without uniformity in the 
mode of assessment. as well as in the rate of taxation. 
Further. the uniformity must be coextensive with the 
territory to which it applies. And it must be extended 
to all property subject to taxation. so that all property 
may be taxed alike and equally. Edye v. Robertson. 112 
U.S. 580. 5 S.Ct. 247. 28 L.Ed. 798. 
Uniform Child Custody Jurisdiction Act. See Custody 
of children. 
Uniform Code of Military Justice. The body of law 
which governs military persons in their conduct as mili
tary personnel. 10 U.S.C.A. §§ 801-940. See Code of 
Military Justice. 
Uniform Commercial Code. One of the Uniform Laws 
drafted by the National Conference of Commissioners on 
Uniform State Laws and the American Law Institute 
governing commercial transactions (including sales and 
leasing of goods. transfer of funds. commercial paper, 
bank deposits and collections, letters of credit, bulk 
transfers, warehouse receipts, bills of lading, investment 
securities, and secured transactions). The U.C.C. has 
been adopted in whole or substantially by all states. 
Uniform Consumer Credit Code. (Also called the 
"U.3C.") A Uniform Law, adopted by some states: (a) to 
simplify, clarify, and modernize the law governing con
sumer credit and usury; (b) to provide rate ceilings to 
assure an adequate supply of credit to consumers; (c) to 
further consumer understanding of the terms of credit 
transactions and to foster competition among suppliers 
of consumer credit so that consumers may obtain credit 
at reasonable cost; (d) to protect consumers against 
unfair practices by some suppliers of consumer credit, 
having due regard for the interests of legitimate and 
scrupulous creditors; (e) to permit and encourage the 
development of fair and economically sound consumer 
credit practices; (f) to conform the regulation of disclo
sure in consumer credit transactions to the Federal 
Truth-in-Lending Act; and (g) to make uniform the law, 
including administrative rules, among the various juris
dictions. See also Consumer Credit Protection Act; Truth
in-Lending Act. 
Uniform Controlled Substances Act. A uniform and 
comprehensive law governing use, sale, and distribution 
of drugs and narcotics adopted by most states, including 
Puerto Rico and the Virgin Islands. See 21 U.S.C.A. 
§ 801 et seq. for federal Act. See also Controlled Sub
stance Acts. 
Uniform Customs and Practice for Commercial Docu
mentary Credits (UCP). A publication of the Interna
tional Chamber of Commerce which codifies the wide
spread understanding of bankers and merchants about 
the mechanics and operations of letters of credit. The 
UCP is law in the sense that the typical commercial 
credit is issued subject to the UCP, and courts refer to 
the UCP to interpret and supplement primary sources of 
credit law, such as U.C.C. Article 5. 
UNINCORPORATED ASSOCIATION 
Uniform Deceptive Trade Practices Act. One version 
of a Ubaby" F.T.C. Act that provides private remedies for 
a variety of unfair and deceptive acts, including false 
advertising and disparagement. The remedies under 
this particular uniform statute, as enacted by certain 
states, are limited to injunctive relief. 
Uniform Divorce Recognition Act. One of the Uni
form Laws adopted by some states governing questions 
of full faith and credit and recognition of divorces of 
sister states. 
Uniform Gifts to Minors Act. See Gifts to Minors Act; 
Transfers to Minors Act. 
Uniformity. See Uniform. 
Uniform Laws or Acts. Laws in various subject areas, 
approved by the Commissioners on Uniform State Laws, 
that are often adopted, in whole or substantially, by 
individual states; their purpose being to make the laws 
on various subjects uniform throughout the states. Ex
amples are the Uniform Anatomical Gifts Act; Uniform 
Partnership Act; and the Uniform Commercial Code. 
See also Model act. 
Uniform Principal and Income Act. One of the Uni
form Laws adopted by some states governing allocation 
of principal and income in trusts and estates. 
Uniform Simultaneous Death Act. See Simultaneous 
Death Act. 
Uniform State Laws. See Model act; Uniform Laws or 
Acts. 
Uniform Transfers to Minors Act. See Transfers to 
Minors Act. 
Unify. To cause to be one; to make into a unit; to unite; 
to become one; to consolidate. 
Unigeniture lyuWn;}jEm;}ty;}r/. The state of being the 
only begotten. 
Unilateral. One-sided; ex parte; having relation to only 
one of two or more persons or things. 
Unilateral contract. See Contract. 
Unilateral mistake. A mistake or misunderstanding as 
to the terms or effect of a contract, made or entertained 
by one of the parties to it but not by the other. 
Unilateral record. Records are unilateral when offered 
to show a particular fact, as a prima facie case, either 
for or against a stranger. 
Unimproved land. A statutory term which includes 
lands, once improved, that have reverted to a state of 
nature, as well as lands that have never been improved. 
Uninclosed place. A place not entirely inclosed, an 
"inclosed" place being a place inclosed on all sides by 
some sort of material. 
Unincorporated association. Voluntary group of per
sons, without a charter, formed by mutual consent for 
purpose of promoting common enterprise or prosecuting 
common objective. Local 4076, United Steelworkers of 
America v. United Steelworkers of America, AFlr-CIO,

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UNINCORPORATED ASSOCIATION 
D.C.Pa., 327 F.Supp. 1400, 1402. An organization com
posed of a body of persons united with a charter for the 
prosecution of a common enterprise. Heifetz v. Rocka
way Point Volunteer }4'ire Dept., Sup., 124 N.Y.S.2d 257, 
260. See also Partnership. 
Uninfected. Untainted or uncontaminated, not affected 
unfavorably, not impregnated or permeated with that 
which is bad or harmful. Leonardi v. A. Habermann 
Provision Co., 143 Ohio St. 623, 56 N.E.2d 232, 237, 28 
0.0. 511. 
Uninsured motorist coverage. Protection afforded an 
insured by first party insurance against bodily injury 
inflicted by an uninsured motorist, after the liability of 
the uninsured motorist for the injury has been estab
lished. Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 457 
P.2d 34, 36. Purpose is to guarantee that the injured 
insured will be in the same position in the event of 
injury attributable to negligence of an uninsured motor
ist as the insured would be if he were injured through 
the negligence of a motorist carrying liability insurance. 
Jarstad v. National Farmers Union Property & Cas. Co., 
Nev., 552 P.2d 49, 50. 
Uninsured motorist coverage in automobile liability 
policies is designed to close the gaps inherent in motor 
vehicle financial responsibility and compulsory insur
ance legislation, and this insurance coverage is intend
ed, within fixed limits, to provide financial recompense 
to innocent persons who receive injuries and dependents 
of those who are killed, through the wrongful conduct of 
motorists who, because they are uninsured and not 
financially responsible, cannot be made to respond in 
damages. Wright v. Fidelity & Cas. Co. of New York, 
270 N.C. 577, 155 S.E.2d 100, 106. 
See also Uns atisfied judgment funds. Compare Underin
sured motorist coverage. 
Unintelligible. That which cannot be understood. 
Unio /yuwn(i)yow/. Lat. In canon law, a consolidation 
of two churches into one. 
Union. An organization of workers, formed for the pur
pose of negotiating with employers on matters of wages, 
seniority, working conditions, fringe benefits, and the 
like. 
A league; a federation; an unincorporated association 
of persons for a common purpose; as, a trade or labor 
union. A joinder of separate entities. State ex reI. 
Dawson v. Dinwiddie, 186 Okl. 63, 95 P.2d 867, 869. 
A popular term in America for the United States; 
also, in Great Britain, for the consolidated governments 
of England and Scotland, or for the political tie between 
Great Britain and Ireland. 
See also Agency shop; Bargaining unit; Craft union; 
Credit union; Decertification; Labor organization; Labor 
union; Open shop; Preferential shop; Right-to-work laws. 
Closed union. Union with highly restrictive member
ship requirements such as high initiation fees, and long 
apprenticeship periods. See also Closed shop; compare 
Open union, below. 
1532 
Company union. Union formed or sponsored by the 
employer. For all practical purposes, such union is now 
illegal because employers are prohibited from interfer
ing with union representation by the National Labor 
Relations Act. 
Craft union. Union composed of members of the same 
trade or craft, as carpenters, plumbers, etc. regardless of 
the company for which they work. 
Horizontal union. A craft union which cuts across 
employer or industry lines. 
Independent union. Union formed by employees of a 
particular employer without affiliation with an interna
tional union. 
Industrial union. Union composed of workers in a 
particular industry regardless of their particular trade 
or craft, as for example, the United Automobile Workers 
union. 
International union. A parent union with affiliates in 
other countries such as Canada and Mexico. 
Local union. A union of workers in one plant or loca
tion but affiliated with a parent or larger union. The 
local is the bargaining unit of the union. 
National union. A parent union with locals in various 
parts of the United States, though not outside the coun
try. 
Open union. A union whose admission requirements 
are relatively easy to meet. See also Open shop; com
pare Closed union, above. 
Trade union. Generically, a labor union. Restrictively, 
a craft union. 
Union shop. Exists where all workers, once employed, 
must become union members within a specified period of 
time as a condition of their continued employment. See 
also Closed shop; Open shop; Right to work laws. 
Vertical union. An industrial union organized along 
lines of industry and not craft. 
Union certification. The process by which an official, 
governmental body such as the National Labor Rela
tions Board declares that a particular union has quali
fied as the bargaining representative of the employees of 
a company or industry by reason of a majority vote of 
the workers. 
Union contract. A written agreement between the un
ion and employer covering such matters as wages, se
niority rights and working conditions. 
Union-jack. The national flag of Great Britain and 
Ireland, which combines the banner of St. Patrick with 
the crosses of St. George and St. Andrew. The word 
derives from the jack of a ship, a flag flown at the bow of 
a ship since the seventeenth century, other than the 
ensign which designates the ship's status as merchant or 
military. The jack designates the ship's nationality. 
Union mortgage clause. A clause, as in a fire policy 
(together with the rider making the loss, if any, payable 
to the mortgagee), which provides that if the policy is

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1533 
made payable to a mortgagee of the insured real estate, 
no act or default of any person other than such mortgag
ee, or his agents or those claiming under him, shall 
affect his right to recover in case of loss on such real 
estate. Such clause creates independent contract be
tween insurer and mortgagee and is distinguished from 
"open mortgage clause" in that latter clause simply 
provides that policy is payable to mortgagee as his 
interest may appear. Prudential Ins. Co. of America v. 
German Mut. Fire Ins. Ass'n of Lohman, 231 Mo.App. 
699, 105 S.W.2d 1001. And mortgagee under such latter 
clause is merely an appointee to receive fund recovera
ble in case of loss to extent of his interest. Capital Fire 
Ins. Co. of Cal. v. Langhorne, C.C.A.Minn., 146 F.2d 237, 
241. 
Union rate. The wage scale set by a union as a mini
mum wage to be paid and generally expressed as an 
hourly rate or piece-work rate. 
Union security clause. Provision in union contract 
which establishes status of union in a plant. It provides 
for the relation of the union to the workers and their 
positions. Any contract clause requiring some or all 
employees represented by a union to become or remain 
members of the union as a condition of employment. 
Unissued 'stock. Stock of a corporation which has been 
authorized but is not outstanding (i.e. not issued). 
Unit. A single thing of any kind. A term sometimes 
used in the sense of a share, as in an oil syndicate, or as 
equivalent to an investment security. With respect to 
labor unit, see Bargaining unit. 
Unitary business. "Unitary business operation," to 
which unitary apportionment method of reporting busi
ness income is applied, is one in which there is high 
degree of interrelationship and interdependence be
tween, typically, one corporation, which generally is a 
parent corporation, and its corporate subsidiaries or 
otherwise associated corporations, which are usually en
gaged in multistate, and in some instances in interna
tional, business operations. PMD Inv. Co. v. State, 
Dept. of Revenue, 216 Neb. 553, 345 N.W.2d 815, 817. 
For purpose of determining taxable corporate income, 
recognized test for a "unitary business" is whether oper
ation of portion of business within the state is dependent 
upon or contributory to operation of the business outside 
the state. Joslin Dry Goods Co. v. Dolan, 200 Colo. 291, 
615 P.2d 16, 17. See also Un itary theory; Tax (Unitary 
tax). 
Unitary tax. See Un itary business; Tax (Unitary tax). 
Unitary theory. Under the unitary theory, the sales, 
property, and payroll of related corporations are com
bined for nexus and apportionment purposes, and the 
worldwide income of the unitary entity is apportioned to 
the state. Subsidiaries and other affiliated corporations 
that are found to be part of the corporation's unitary 
business (because they are subject to overlapping owner
ship, operation, or management) are included in the 
apportionment procedure. See also Tax (Unitary tax); 
Un itary business. 
UNITED STATES CODE 
Unitas personarum. Lat. The unity of persons, as that 
between husband and wife, or ancestor and heir. 
Unite. To join in an act; to concur; to act in concert. 
United in interest. A statutory term applicable to code
fendants only when they are similarly interested in and 
will be similarly affected by the determination of the 
issues involved in the action; e.g., joint obligors upon a 
guaranty. 
United Kingdom of Great Britain and Ireland. The 
official title of the kingdom composed of England, Scot
land, Ireland, and Wales, and including the colonies and 
possessions beyond the seas, under the act of January 1, 
1801, effecting the union between Ireland and Great 
Britain. 
United Nations. An organization started by the allied 
powers in World War II for the stated purposes of 
preventing war, providing justice and promoting welfare 
and human rights of peoples. Its membership is made 
up of nearly all nations of the world. New members 
may be admitted by a two-thirds vote of the General 
Assembly. It consists of a Security Council and a Gen
eral Assembly and subordinate agencies. 
United States. This term has several meanings. It may 
be merely the name of a sovereign occupying the posi
tion analogous to that of other sovereigns in family of 
nations, it may designate territory over which sovereign
ty of United States extends, or it may be collective name 
of the states which are united by and under the Consti
tution. Hooven & Allison Co. v. Evatt, U.S.Ohio, 324 
U.S. 652, 65 S.Ct. 870, 880, 89 L.Ed. 1252. 
United States Attorney. A United States Attorney is 
appointed by the President for each judicial district. 
The general duties of U.S. attorneys are to: prosecute 
for all offenses against the United States; prosecute or 
defend, for the Government, all civil actions, suits or 
proceedings in which the United States is concerned; 
appear in behalf of the defendants in all civil actions, 
suits or proceedings pending in his district against col
lectors, or other officers of the revenue or customs for 
any act done by them or for the recovery of any money 
exacted by or paid to these officers, and by them paid 
into the Treasury; institute and prosecute proceedings 
for the collection of fines, penalties, and forfeitures 
incurred for violation of any revenue law, unless satis
fied on investigation that justice does not require the 
proceedings. 28 U.S.C.A. § 547. 
United States Code. Prior to 1926, the positive law for 
federal legislation was contained in the one volume of 
the Revised Statutes of 1875 and then in each subse
quent volume of the Statutes at Large. In 1925, Con
gress authorized the preparation of the United States 
Code. This was prepared by a Revisor of Statutes ap
pointed by Congress, who extracted all sections of the 
Revised Statutes of 1875 that had not been repealed and 
then all of the public and general laws from the Statutes 
at Large since 1873 that were still in force. These were 
then rearranged into fifty titles and published as the 
United States Code, 1926 ed., in four volumes. Each

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UNITED STATES CODE 
year thereafter a cumulative supplement containing the 
laws passed since 1926 was published. In 1932 a new 
edition was issued which incorporated the cumulated 
supplements to the 1926 edition, and this became the 
United States Code, 1932 ed. Every six years a new 
edition of the U.S. Code is published with cumulative 
. supplement volumes being issued during the intervening 
years. 
United States Code Annotated. This multi-volume 
publication includes the complete text of the United 
States Code, together with case notes of state and feder
al decisions which construe and apply specific Code 
sections, cross references to related sections, historical 
notes, and library references. U.S.C.A. is further sup
plemented with the United States Code Congressional 
and Administrative News and periodic pamphlet supple
ments containing laws as passed by Congress during the 
current session. 
United States Commissioners. See Magistrate. 
United States Courts. Except in the case of impeach
ments, the judicial power of the United States is vested 
by the Constitution in a Supreme Court and such other 
inferior courts as may be from time to time established 
by congress. All the judges are appointed by the Presi
dent, with the advice and consent of the senate, to hold 
office during good behavior, and their compensation 
cannot be diminished during their term of office. Art. 
III, U.S.Const. Such "inferior" courts include the 
Courts of Appeals, District Courts, Claims Court, Bank
ruptcy Courts, and Tax Court. 28 U.S.C.A. § 1 et seq. 
See also specific courts. 
United States currency. Commonly understood to in
clude every form of currency authorized by the United 
States government, whether issued directly by it or 
under its authority. See Legal tender. 
United States Government Securities. See Govern-
ment securities. 
United States Magistrates. See Magistrate. 
United States notes. See Treasury bill; Treasury note. 
United States officer. Usually and strictly, in United 
States statutes, a person appointed in the manner de
clared under Art. II, § 2, U.S.Const., providing for the 
appointment of officers, either by the President and the 
Senate, the President alone, the courts of law, or the 
heads of departments. Steele v. U. S., 267 U.S. 505, 45 
S.Ct. 417, 418, 69 L.Ed. 761. 
United States Reports. The official printed record of 
cases heard and decided by the U.S. Supreme Court 
which usually includes a syllabus of each case, the 
opinion of the Court, concurring and dissenting opinions, 
if any, the disposition made of each case, and orders of 
the Court. Originally a series of Reports was issued 
during the incumbency of each successive court reporter 
and such were cited as Dallas (1790-1800); Cranch 
(1801-1815); Wheaton (1816-1827); Peters (1828-1843); 
Howard (1843-1860); Black (1861-1862); and Wallace 
(1863-1874). By 1874, when the number of volumes 
1534 
totalled 90, the practice began of eliminating the report
er's name and citing them as United States Reports. 
United States Supreme Court. See Supreme Court. 
United States trustee. See Ban kruptcy proceedings 
(Bank ruptcy trustee). 
Unit investment trust. An investment company orga
nized under a trust indenture, contract of custodianship 
or agency or similar instrument. 15 U.S.C.A. 
§ 80a-4(2). The most common form of organization is 
the trust indenture. The holder of shares in this invest
ment vehicle has an undivided interest in a fixed pool of 
securities held by the trustee or custodian. 
Unit of production. The "unit of production" method of 
determining the taxable net income or profit in the oil 
or gas business is accomplished by a system of account
ing by which is ascertained, as nearly as science will 
permit, the total amount of recoverable oil in the prop
erty, and to each barrel of this oil is assigned its part of 
the capital investment, and from the sale price of each 
barrel produced and sold there is deducted the expenses 
of producing it, and its proportion of the capital invest
ment, leaving the balance as profit, and thus, when the 
property is exhausted, the operator has received back 
his capital and expenses, and accounted for his net 
income or loss. 
Unit ownership acts. State laws governing condomin
ium ownership. See Planned unit development. 
Unit pricing. System under which contract items are 
priced per unit and not on the basis of a flat contract 
price. 
Unit rule. A method of valuing securities by multiply
ing the total number of shares held by the sale price of 
one share sold on a licensed stock exchange, ignoring all 
other facts regarding value. Citizens Fidelity Bank & 
Trust Co. v. Reeves, Ky., 259 S.W.2d 432, 434. 
Unitrust. A trust from which a fixed percentage of the 
net fair market value of the trust's assets, valued annu
ally, is paid each year to the beneficiary. See also Trust. 
Unity. Under common law, "four unities" had to be 
present to create a joint tenancy: interest-the tenants 
must have one and the same interest; title-the inter
ests must accrue by one and the same instrument or 
conveyance; time-the interests must commence at one 
and the same time; and possession-the property must 
be held by one and the same undivided possession. If 
any one of these unities were lacking, the estate was not 
one in joint tenancy. Robertson v. Ludwig, 12 Kan. 
App.2d 571, 752 P.2d 690, 695. 2 Bl.Comm. 180. See 
also these specific unities, infra. 
Unity of interest. As required in case of joint tenancy, 
means that interests must accrue by one and same 
conveyance. Hernandez v. Becker, C.C.A.N.M., 54 F.2d 
542, 547. It also signifies that the interests must be 
equal; that is, no one of joint tenants can have a greater 
interest in the property than each of the others, while, 
in the case of tenants in common, one of them may have 
a larger share than any of the others. However, this

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1535 
unity of interest requisite refers to equality among the 
cotenants only as to their interests in the estate; it does 
not relate to quality in contribution of purchase money. 
Carozza v. Murray, 63 Md.App. 496, 492 A.2d 1349, 1352. 
See Uni ty. 
Unity of possession. Joint possession of two rights by 
several titles. Exists for example where a person takes 
a lease of land from another at a certain rent, and 
afterwards purchases the fee-simple of such land. By 
this he acquires unity of possession, by which the lease 
is extinguished. It is also one of the essential properties 
of a joint estate, requiring that the joint tenants must 
hold the same undivided possession of the whole and 
enjoy same rights until death of one. Hernandez v. 
Becker, C.C.A.N.M., 54 F.2d 542, 547. See Un ity. 
Unity of seisin. Exists where a person seised of land 
which is subject to an easement, profit it prendre, or 
similar right, also becomes seised of the land to which 
the easement or other right is annexed. 
Unity of time. One of the four unities recognized at 
common law to create a joint tenancy. The interests of 
the parties commence at one and the same time. 2 
Bl.Comm. 181. Robertson v. Ludwig, 12 Kan.App.2d 
571, 752 P.2d 690, 696. See also Unity. 
Unity of title. As applied to joint tenants, signifies that 
they hold their property by one and the same title, while 
tenants in common may take property by several titles. 
See Unity. 
The majority rule regarding water rights that all land 
within the watershed that forms a part of a contiguous 
whole belonging to one person and bordering on the 
water is riparian land regardless of when ownership of 
the part was acquired. 
Uniuscujusque contractus initium spectandum est, et 
causa /y:may�sk(y)�j�skwiy k�ntrrekt�s �nish(iy)�m 
spektrend�m est, et koz�/. The commencement and 
cause of every contract are to be regarded. 
Unius omnino testis responsio non audiatur 
/yuwnay�s omnaynow test�s r�sponsh(iy)ow non 
odiyeyt�r /. The answer of one witness shall not be 
heard at all; the testimony of a single witness shall not 
be admitted under any circumstances. A maxim of the 
civil and canon law. 
Universal. Having relation to the whole or an entirety; 
pertaining to all without exception; a term more exten
sive than "general," which latter may admit of excep
tions. 
Universal agent. One who is appointed to do all the 
acts which the principal can personally do, and which he 
may lawfully delegate the power to another to do. See 
also Agent. 
Universalia sunt notiora singularibus /yuwn�v�rseyl(
i)y� s�nt nowshiyor� si1Jgy�ler�b�s/. Things universal 
are better known than things particular. 
Universal legacy. See Legacy. 
Universal partnership. See PartnerShip. 
UNJUST ENRICHMENT DOCTRINE 
Universal succession. In the civil law, succession to 
the entire estate of another, living or dead, though 
generally the latter, importing succession to the entire 
property of the predecessor as a juridical entirety, that 
is, to all his active as well as passive legal relations. 
Universitas /yUwn�v�rs�tres/. Lat. In the civil law, a 
corporation aggregate. Literally, a whole formed out of 
many individuals. 1 Bl.Comm. 469. 
Universitas facti /yuwn�v�rs�tres frektay/. In the civil 
law, a plurality of corporeal things of the same kind, 
which are regarded as a whole; e.g., a herd of cattle, a 
stock of goods. 
Universitas juris /yuwn�v�rs�tres jur�s/. In the civil 
law, a quantity of things of all sorts, corporeal as well as 
incorporeal, which, taken together, are regarded as a 
whole; e.g., an inheritance, an estate. 
Universitas rerum /yuwn�v�rs�tres rir�m/. In the civil 
law, literally, a whole of things. Several single things, 
which, though not mechanically connected with one 
another, are, when taken together, regarded as a whole 
in any legal respect. 
Universitas vel corporatio non dicitur aliquid facere 
nisi id sit collegialiter deliberatum, etiamsi major 
pars id faciat /yuwn�v�rs�tres vel korp�reysh(iy)ow non 
dis�t�r rel�kwid fres�riy naysay id sit k�liyjiyeyl�t�r 
d�lib�reyt�m, eshiyremsay meyj�r parz id feysh(iy)�t/. A 
university or corporation is not said to do anything 
unless it be deliberated upon as a body, although the 
majority should do it. 
University. An institution of higher learning, consisting 
of an assemblage of colleges united under one corporate 
organization and government, affording instruction in 
the arts and sciences and the learned professions, and 
conferring degrees. 
Universus /yuwn�v�rs�s/. Lat. The whole; all togeth
er. 
Unjust. Contrary to right and justice, or to the enjoy
ment of his rights by another, or to the standards of 
conduct furnished by the laws. 
Unjust enrichment doctrine. General principle that 
one person should not be permitted unjustly to enrich 
himself at expense of another, but should be required to 
make restitution of or for property or benefits received, 
retained or appropriated, where it is just and equitable 
that such restitution be made, and where such action 
involves no violation or frustration of law or opposition 
to public policy, either directly or indirectly. Tulalip 
Shores, Inc. v. Mortland, 9 Wash.App. 271, 511 P.2d 
1402, 1404. Unjust enrichment of a person occurs when 
he has and retains money or benefits which in justice 
and equity belong to another. L & A Drywall, Inc. v. 
Whitmore Const. Co., Inc., Utah, 608 P.2d 626, 630. 
Three elements must be established in order to sus
tain a claim based on unjust enrichment: A benefit 
conferred upon the defendant by the plaintiff; an appre
ciation or knowledge by the defendant of the benefit; 
and the acceptance or retention by the defendant of the

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UNJUST ENRICHMENT DOCTRINE 
benefit under such circumstances as to make it ineq
uitable for the defendant to retain the benefit without 
the payment of its value. Everhart v. Miles, 47 Md.App. 
131, 136, 422 A.2d 28. See also Quantum meruit. 
Unknown Injury rule. See Injury. 
Unknown persons. Persons whose identities cannot be 
ascertained. 
Unkouth /;}nkuw(}/. Unknown. The law French form 
of the Saxon "uncouth." 
Unlage. Sax. An unjust law. 
Unlawful. That which is contrary to, prohibited, or 
unauthorized by law. That which is not lawful. The 
acting contrary to, or in defiance of the law; disobeying 
or disregarding the law. Term is equivalent to "without 
excuse or justification." State v. Noble, 90 N.M. 360, 
563 P.2d 1153, 1157. While necessarily not implying the 
element of criminality, it is broad enough to include it. 
See Crime; Criminal. 
Term as applied to agreements and the like, denotes 
they are ineffectual in law, for they involve acts which, 
though not positively forbidden, are disapproved by law 
and are therefore not recognized as ground of legal 
rights because they are against public policy. Conine v. 
Leikam, Okl., 570 P.2d 1156, 1159. 
Unlawful act. Act contrary to law, and presupposes 
that there must be an existing law. A violation of some 
prohibitory law and includes all willful, actionable viola
tions of civil rights, and is not confined to criminal acts. 
State v. Hailey, 350 Mo. 300, 165 S.W.2d 422, 427. See 
also Uncons titutional. 
Unlawful assembly. At common law, the meeting to
gether of three or more persons, to the disturbance of 
the public peace, and with the intention of co-operating 
in the forcible and violent execution of some unlawful 
private enterprise. If they take steps towards the per
formance of their purpose, it becomes a rout; and, if 
they put their design into actual execution, it is a riot. 
4 Bl.Comm. 146. An unlawful assembly is a meeting of 
three or more persons with a common plan in mind 
which, if carried out, will result in a riot. In other 
words, it is such a meeting with intent to (a) commit a 
crime by open force, or (b) execute a common design 
lawful or unlawful, in an unauthorized manner likely to 
cause courageous persons to apprehend a breach of the 
peace. 
Unlawful assembly is the meeting or coming together 
of not less than five (5) persons for the purpose of 
engaging in conduct constituting either disorderly con
duct, or a riot, or when in a lawful assembly of not less 
than five (5) persons, agreeing to engage in such con
duct. Kansas Criminal Code, 21-4102. 
See also Assembly, right of; Riot. 
Unlawful belligerents. Enemies passing the bound
aries of the United States for purpose of destroying war 
industries and supplies without a uniform or other em
blem signifying their belligerent status or discarding 
1536 
that means of identification after entry. Ex parte Qui
rin, App.D.C., 317 U.S. 1, 63 S.Ct. 2, 15, 87 L.Ed. 3. 
Unlawful detainer. The unjustifiable retention of the 
possession of real property by one whose original entry 
was lawful and of right, but whose right to the posses
sion has terminated and who refuses to quit, as in the 
case of a tenant holding over after the termination of 
the lease and in spite of a demand for possession by the 
landlord. Brandley v. Lewis, 97 Utah 217, 92 P.2d 338, 
339. Actions of "unlawful detainer" concern only right 
of possession of realty, and differ from ejectment in that 
no ultimate question of title or estate can be deter
mined. McCracken v. Wright, 159 Kan. 615, 157 P.2d 
814, 817. See also Detainer; Ejectment; Eviction; Forc
ible detainer; Forcible entry and detainer; Process (Sum
mary process). 
Unlawful detainer proceeding. A statutory procedure 
by which a landlord can legally evict a tenant in default 
on his or her rent. See Unla wful detainer. 
Unlawful entry. An entry upon lands effected peace
ably and without force, but which is without color of 
title and is accomplished by means of fraud or some 
other willful wrong. 
Unlawfully. Illegally; wrongfully. See Criminal; Unla w
ful; Unla wful act. 
This word is frequently used in indictments in the 
description of the offence; it was formerly necessary 
when the crime did not exist at common law, and when 
a statute, in describing an offence which it created, used 
the word; but was unnecessary whenever the crime 
existed at common law and was manifestly illegal. 
Unlawful picketing. Picketing which is not honest or 
truthful. Magill Bros. v. Building Service Employees' 
International Union, 20 Cal.2d 506, 127 P.2d 542, 543. 
Picketing which involves false statements or misrepre
sentations of facts. Wiest v. Dirks, 215 Ind. 568, 20 
N.E.2d 969, 971. Exists when force or violence is used 
to persuade or prevent workers from continuing their 
employment. Ex parte Bell, 37 Cal.App.2d 582, 100 P.2d 
339, 343. Examples include secondary picketing in vio
lation of 29 U.S.C.A. § 158(b)(4)(ii)(B); N.L.R.B. v. Oma
ha Bldg. and Const. Traders Council, 856 F.2d 47 (8th 
Cir.); recognitional picketing in violation of 29 U.S.C.A. 
§ 158(b)(7)(A) and (C); N.L.R.B. v. Local 3, Intern. Broth. 
of Elec. Wkrs., C.A.2, 861 F.2d 44. See also Secondary 
boycott; Picketing. 
Unless. If it be not that; if it be not the case that; if 
not; supposing not; if it be not; except. A reservation 
or option to change one's mind provided a certain event 
happens, a conditional promise. A subordinate conjunc
tion in common usage, connecting a dependent or subor
dinate clause to the main clause of a sentence. Kansas 
City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 
217 Kan. 88, 535 P.2d 419, 423. 
Unless lease. An oil and gas lease which provides that 
lease will be rendered null and void and lessee will 
automatically be relieved from liability, upon failure to 
commence operations or to pay rent. It must be ex-

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1537 
pressly stipulated in the lease that lease shall become 
null and void at a certain time "unless" the lessee 
begins operations or pays the rental stipulated. Where 
the word "unless" precedes the description of the act to 
be performed under an oil lease, no obligation to per
form that act is imposed by the lease. McCrabb v. 
Moulton, C.C.A.Mo., 124 F.2d 689, 69l. 
Unlimited. Without confines, unrestricted, boundless. 
Unliquidated. Not ascertained in amount; not deter
mined; remaining unassessed or unsettled, as unliqui
dated damages. Davies v. Turner, 61 Ga.App. 531, 6 
S.E.2d 356, 358. 
Unliquidated claim or demand. A claim which has 
not been finally determined either as to liability or 
amount of damages. A disputed claim. Under the law 
of accord and satisfaction, a claim or debt will be regard
ed as unliquidated if it is in dispute as to the proper 
amount. Paulsen Estate v. Naches-Selah Irr. Dist., 190 
Wash. 205, 67 P.2d 856, 858. 
For purposes of rule that prejudgment interest is 
allowed if a claim is liquidated but not if a claim is 
unliquidated, claim is "unliquidated" when the amount 
of the damages cannot be computed except on conflict
ing evidence, inferences and interpretations. Town of 
Longboat Key v. Carl E. Widell & Son, Fla.App., 362 
So.2d 719, 723. 
See also Unliq uidated. 
Unliquidated damages. Damages which have not been 
determined or calculated. Those which are not yet 
reduced to a certainty in respect to amount, nothing 
more being established than the plaintiffs right to re
cover, or such as cannot be fixed by a mere mathemati
cal calculation from ascertainable data in the case. 
Costello v. Hartford Institute of Accounting, Inc., 193 
Conn. 160, 475 A.2d 310, 314. See also Damages. 
Unliquidated debt. An obligation which has not been 
reduced to a specific money amount; also, there may be 
a bona fide dispute between the parties as to this unde
termined amount. Compare Liquidated debt. 
Unlisted security. Security that is not listed on an 
organized exchange (e.g., New York Stock Exchange) 
and, as such, is traded on over-the-counter markets. 
Unlivery. A term used in maritime law to designate the 
unloading of cargo of a vessel at the place where it is 
properly to be delivered. 
Unloading. Act of discharging a cargo; taking a load 
from; disburdening or removing from. American Oil & 
Supply Co. v. United States Casualty Co., 19 N.J.Misc. 7, 
18 A.2d 257, 259. 
An unloading clause in an automobile liability policy 
covers the entire process involved in the movement of 
articles by and from a motor vehicle to the place where 
they are turned over to the one to whom the insured is 
to make delivery, if the clause is construed in accord
ance with what may be called the "complete operation" 
rule. Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co. 
of N. Y., 108 Utah 500, 161 P.2d 423. There are, 
UNMARRIED 
however, two other rules or doctrines used by various 
courts in applying the unloading clause of such a policy. 
One is known as the "coming to rest" rule, and the other 
is the "continuous passage" rule. But the complete 
operation rule is said to be the modern doctrine, sup
ported by the trend of the later cases. London Guaran
tee & Acc. Co. v. C. B. White & Bros., 188 Va. 195, 49 
S.E.2d 254. 
In determining whether activity constitutes "unload
ing" within meaning of insurance policy which provides 
coverage for liability arising out of loading and unload
ing truck, "complete operations" rule is followed under 
which "unloading" embraces all operations required in 
any specific situation to effect a complete delivery of the 
article; the number of temporary or intermediate stops 
or resting places is immaterial. Manhattan Fire & 
Marine Ins. Co. v. Travelers Ins. Co., 66 Cal.App.3d 794, 
136 Cal.Rptr. 400, 402. "Loading or unloading" within 
homeowner's policy excluding personal liability coverage 
with respect to "loading or unloading" of automobiles 
has primary reference to objects transported from one 
place for delivery to some at least temporary final 
destination. Morari v. Atlantic Mut. Fire Ins. Co., 10 
Ariz.App. 142, 457 P.2d 304, 306. "Unloading" as used 
in a motor vehicle liability policy has been completed 
when, following removal of the material from the ve
hicle, the deliverer has finished his handling of it and 
has placed the material in the hands of the receiver at 
the designated reception point, even though it is neces
sary for the consignee, or someone in his behalf, to 
transport it thereafter to another point. General Acc. 
Fire & Life Assur. Corp. v. Liberty Mut. Ins. Co., Fla. 
App., 260 So.2d 249, 255. 
Unlooked for misbap or untoward event. One occur
ring unexpectedly and not naturally or in ordinary 
course of events. 
Unmarketable title. Exists when for vendee to accept 
title proffered such would lay him open to fair probabili
ty of vexatious litigation with possibility of serious loss. 
It being sufficient to render it so if ordinarily prudent 
man with knowledge of the facts and aware of legal 
questions involved would not accept it in the ordinary 
course of business but title need not be bad in fact. 
Stover v. Whiting, 157 Mich.App. 462, 403 N.W.2d 575, 
578. Exists where some defect of substantial character 
exists and facts are known which fairly raise reasonable 
doubt as to title. Schul v. Clapp, 154 Kan. 372, 118 P.2d 
570, 574. Title is "unmarketable" where it is of such a 
character as to expose the purchaser to the hazards of 
litigation and where there are outstanding possible in
terests in third persons. Boecher v. Borth, 377 N.Y.S.2d 
781, 784. And mere quibbles and pecadilloes which the 
ingenuity of counsel can raise against a title do not 
alone render it an "unmarketable title". Barrett v. 
McMannis, 153 Kan. 420, 110 P.2d 774, 778. Compare 
Marketable title. 
Unmarried. Its primary meaning is never having been 
married; but it is a word of flexible meaning and it may 
be construed as not having a husband or wife at the 
time in question; e.g. widow or widower or divorcee.

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UNNATURAL OFFENSE 
Unnatural offense. The infamous crime against nature; 
i.e., sodomy or buggery. 
Unnatural will. An expression applied to disposition of 
estate or large portion thereof to strangers, to exclusion 
of natural objects of testator's bounty without apparent 
reason. 
Unnecessary. Not required by the circumstances of the 
case. 
Unnecessary hardship. As considered, sufficient to es
tablish basis for granting zoning variance, is shown by 
establishing that: physical characteristics of property 
are such that it could not be used for any permitted 
purpose; property could be so used only at prohibitive 
expense; or that characteristics of area are such that 
property has no value or any distress value for any 
permitted purpose. Eighteenth & Rittenhouse Associ
ates v. Zoning Bd. of Adjustment, 26 Pa.Cmwlth. 554, 
364 A.2d 973, 975. Within zoning ordinance so as to 
authorize granting of variance on such ground if land 
cannot yield a reasonable return if used only for a 
purpose allowed in zone, such exists where the plight of 
owner is due to unique circumstances not to general 
conditions in the neighborhood and use to be authorized 
will not alter essential character of the locality. Calcag
no v. Town Board of Town of Webster, 265 App.Div. 687, 
41 N.Y.S.2d 140, 142. It has also been said that test 
whether terms of zoning ordinance impose an "unneces
sary hardship" depends on whether use restriction is so 
unreasonable as to constitute an arbitrary interference 
with basic right of private property. Scaduto v. Town of 
Bloomfield, 127 N.J.L. 1, 20 A.2d 649, 650. See also 
Variance (Zoning). 
Un ne doit prise advantage de son tort demesne I:m 
n;} dwa priyz advontazh d;} son tor d;}meyn/. One ought 
not to take advantage of his own wrong. 
Uno absurdo dato, infinita sequuntur /yuwnow 
;}bsc)rdow deytow inf;}nayt;} s;}kwc)nt;}r/. One absurdity 
being allowed, an infinity follows. 
Uno actu /yuwnow rekt(y)uw/. Lat. In a single act; by 
one and the same act. 
Unoccupied. Within fire policy exempting insurer from 
liability in case dwelling is "unoccupied," means when it 
is not used as a residence, when it is no longer used for 
the accustomed and ordinary purposes of a dwelling or 
place of abode, or when it is not the place of usual 
return and habitual stoppage. Hence a mere temporary 
absence of occupants of dwelling house from such prem
ises, with intention to return thereto does not render 
dwelling "unoccupie�". Foley v. Sonoma County Farm
ers' Mut. Fire Ins. Co., 18 Ca1.2d 232, 115 P.2d 1, 2, 3. 
See Occupation. 
Uno flatu /yuwnow fleyt(y)uw/. Lat. In one breath. 
Uno flatu, et uno intuitu, at one breath, and in one view. 
Unprecedented. Having no precedent or example, nov
el, new, unexampled. State v. Malone, Tex.Civ.App., 
168 S.W.2d 292, 300. Unusual and extraordinary; af
fording no reasonable warning or expectation of recur
rence. 
1538 
Unprecedented rainfall. An unusual and extraordi
nary rainfall as has no example or parallel in the 
history of rainfall in the vicinity affected, or as affords 
no reasonable warning or expectation that it will likely 
occur again. 
Unprofessional conduct. That which is by general 
opinion considered to be unprofessional because immor
al, unethical or dishonorable. State Board of Dental 
Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 697. 
That which violates ethical code or rules of profession 
(e.g. Model Rules of Professional Conduct) or such con
duct which is unbecoming member of profession in good 
standing. It involves breach of duty which professional 
ethics enjoin. Within statutes, rules, etc., promulgating 
standards of professional conduct for attorneys denotes 
conduct which it is recommended be made subject to 
disciplinary sanctions. Hawk v. Superior Court In and 
For Solano County, 42 C.A.3d 108, 116 Cal.Rptr. 713, 
721. See Rules of Professional Conduct. 
Unqualified opinion. The version of an audit opinion 
rendered when a certified public accountant is satisfied 
that the financial statements are fairly presented and 
are consistent with those of the preceding year, and that 
the audit was performed in accordance with generally 
accepted auditing standards. 
Unques /c)IJkwiyz/c)IJkwiyz/. L. Fr. Ever; always. Ne 
unques, never. 
Unques prist /c)IJkwiyz prist!. L. Fr. Always ready. 
Another form of tout temps prist. 
Unrealized profit or loss. A profit or loss that has not 
yet materialized. An example of an unrealized profit 
would be in the appreciation of stock. Although the 
stock price has increased, if the stock is not sold, the 
profit is considered a "paper" profit or unrealized profit. 
Unrealized receivables. Amounts earned by a cash 
basis taxpayer but not yet received. Because of the 
method of accounting used by the taxpayer, such 
amounts have no income tax basis. . 
Unreasonable. Irrational; foolish; unwise; absurd; sil
ly; preposterous; senseless; stupid. Southern Kansas 
State Lines Co. v. Public Service Commission, 135 Kan. 
657, 11 P.2d 985, 987. Not reasonable; immoderate; 
exorbitant. Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 
500. Capricious; arbitrary; confiscatory. Harris v. 
State Corporation Commission, 46 N.M. 352, 129 P.2d 
323, 328. 
Unreasonable appreciation. An unrealized holding 
gain; frequently used in the context of marketable secu
rities. A paper profit (q.v.). See also Equity. 
Unreasonable compensation. Under the Internal Rev
enue Code, a deduction is allowed for "reasonable" sala
ries or other compensation for personal services actually 
rendered. To the extent compensation is "excessive" 
(i.e., "unreasonable"), no deduction will be allowed. The 
problem of unreasonable compensation usually is limit
ed to closely-held corporations where the motivation is 
to pay out profits in some form deductible to the corpo
ration. Deductible compensation, therefore, becomes an

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1539 
attractive substitute for nondeductible dividends when 
the shareholders also are employed by the corporation. 
Unreasonable decision. Term can be applied to an 
administrative agency's decision only when it is deter
mined that the evidence presented leaves no room for 
difference of opinion among reasonable minds. South 
Cent. Bell Telephone Co. v. Public Service Com'n, Ky. 
App., 702 S.W.2d 447, 451. 
Unreasonable refusal to submit to operation. An 
injured employee's refusal to submit to an operation is 
unreasonable, so as to deprive him or her of right to 
workers' compensation if it appears that an operation of 
a simple character not involving serious suffering or 
danger will result in substantial physical improvement. 
Black Star Coal Co. v. Surgener, 297 Ky. 653, 181 S.W.2d 
53, 54. 
Unreasonable restraint of trade. Restraint of trade is 
"unreasonable," for purpose of Sherman Anti-Trust Act 
(15 U.S.C.A § 1), only where it produces significant 
anitcompetitive effect. Kerasotes Michigan Theatres, 
Inc. v. National Amusements, Inc., D.C.Mich., 658 
F.Supp. 1514, 1518. A conclusion that a restraint of 
trade is unreasonable may be based either (1) on the 
nature or character of the contracts, or (2) on surround
ing circumstances giving rise to the inference or pre
sumption that they were intended to restrain trade and 
enhance prices. Under either branch of the test, the 
inquiry is confined to a consideration of impact on 
competitive conditions. National Society of Professional 
Engineers v. United States, 435 U.S. 679, 690, 98 S.Ct. 
1355, 1364, 55 L.Ed.2d 637. Within Sherman Act, term 
includes agreements for price maintenance of articles 
moving in interstate commerce. American Tobacco Co. 
v. U.S., C.AKy., 147 F.2d 93, 108. That is, any combina
tion or conspiracy that operates directly on prices or 
price structure and has for its purpose the fixing of 
prices. United States v. Waltham Watch Co., D.C.N.Y., 
47 F.Supp. 524, 531. See Price-fixing; Restraint of trade; 
Robinson-P atman Act. 
Unreasonable restraint on alienation. Such act is 
brought about by gift of absolute ownership in property 
followed by such condition as takes away incidents of 
such ownership. 
Unreasonable search and seizure. See Exclusionary 
Rule; Fourth Amendment; Probable cause; Search. 
Unrelated business income. Income recognized by an 
exempt organization that is generated from activities 
not related to the exempt purpose of the entity. For 
instance, the pharmacy located in a hospital often gener
ates unrelated business income. I.R.C. § 511. 
In order for income of tax exempt organization to be 
"unrelated business taxable income" income must be 
derived from an activity which is a trade or business, 
the trade or business must not be substantially related 
to the exempt purposes of the organization and the 
exempt organization must regularly carry on the trade 
or business. Oklahoma Cattlemen's Ass'n v. U.S., D.C. 
Okl., 310 F.Supp. 320, 321. 
UNSOUND MIND 
Unrelated business income tax. Tax levied on the 
unrelated business taxable income of an exempt orga
nization. See Unrelated business income. 
Unrelated offenses. A violation of law which is inde
pendent of the offense being charged. Evidence of other 
crimes, wrongs, or acts is not admissible to prove the 
character of a person in order to show that he acted in 
conformity therewith. It may, however, be admissible 
for other purposes, such as proof of motive, opportunity, 
intent, preparation, plan, knowledge, identity, or ab
sence of mistake or accident. Fed.Evid.R. 404(b). 
Unresponsive evidence. In evidence, an answer to a 
question which is irrelevant to the question asked. 
Unruly and dangerous animals. Within the meaning 
of the law, such as are likely to injure other domestic 
animals and persons. 
Unsafe. Dangerous; not secure. 
Unsatisfied judgment funds. Fund created by state 
law in several states to reimburse persons having claims 
arising out of automobile accidents who have been un
able to collect from the party responsible for the acci
dent because such party is not insured or is financially 
not able to pay. See also Uni nsured motorist coverage. 
Unseaworthy. A vessel which is unable to withstand 
the perils of an ordinary voyage at sea. Fireman's Fund 
Ins. Co. v. Compania de Navegacion, Interior, S. A, 
C.C.ALa., 19 F.2d 493, 495. A condition which arises 
from a defect in a vessel's hull, gear, appurtenances, and 
in some circumstances her crew. Klarman v. Santini, 
D.C.Conn., 363 F.Supp. 910, 915. One that could not 
reasonably have been expected to make the voyage. 
Interlake Iron Corporation v. Gartland S. S. Co., C.C.A 
Mich., 121 F.2d 267, 269, 270. One not manned by a 
competent crew; or not carrying proper navigational 
charts. But a ship is not unseaworthy where defect in 
ship is such that defect can be remedied on the spot in a 
short time by materials available. Middleton & Co. 
(Canada) Limited v. Ocean Dominion Steamship Corpo
ration, C.C.A.N.Y., 137 F.2d 619, 622. Compare Seawor
thy. 
Unsecured debt. Debt obligations that are not backed 
by pledged collateral or security agreement. 
Unsolemn war. War denounced without a declaration; 
war made not upon general but special declaration; 
imperfect war. People v. McLeod, 1 Hill, N.Y., 409, 37 
Am.Dec. 328. 
Unsolemn will. In the civil law, one in which an 
executor is not appointed. 
Unsound mind. Non-legal term referring to one who 
from infirmity of mind is incapable of managing himself 
or his affairs. The term, therefore, includes insane 
persons (see Insanity). It exists where there is an essen
tial deprivation of the reasoning faculties, or where a 
person is incapable of understanding and acting with 
discretion in the ordinary affairs of life. Oklahoma 
Natural Gas Corporation v. Lay, 175 Okl. 75, 51 P.2d 
580, 582. But eccentricity, uncleanliness, slovenliness,

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UNSOUND MIND 
neglect of person and clothing, and offensive and dis
gusting personal habits do not constitute unsoundness of 
mind. See also Capacity. 
Untenantable. Term frequently used in landlord-tenant 
law to mean the condition of leased premises that are 
not fit for occupancy or rental. See also Warranty (War
ranty of habitability). 
Unthrift. A prodigal; a spendthrift. 1 Bl.Comm. 306. 
Until. Up to time of. A word of limitation, used ordi
narily to restrict that which precedes to what immedi
ately follows it, and its office is to fix some point of time 
or some event upon the arrival or occurrence of which 
what precedes will cease to exist. Empire Oil and 
Refining Co. v. Babson, 182 Okl. 336, 77 P.2d 682, 684. 
Untoward event. See Un looked for mishap or untoward 
event. 
Untrue. Prima facie inaccurate, but not necessarily 
wilfully false. A statement is "untrue" which does not 
express things exactly as they are. Zolintakis v. Eq
uitable Life Assur. Soc. of United States, C.C.A.Utah, 
108 F.2d 902, 905. See Misrepresentation. 
Unumquodque dissolvitur eodem ligamine quo liga
tur lyuwn;}mkw6dkwiy d;}z6lv;}t;}r iy6wd;}m l;}geym;}niy 
kwow l;}geyt;}r/. Every obligation is dissolved by the 
same solemnity with which it is created. 
Unumquodque eodem modo quo colligatum est, 
dissolvitur,-quo constituitur, destruitur Iyuw
n;}mkw6dkwiy iy6wd;}m m6wdow kwow kol;}geyt;}m est, 
d;}z6lv;}t;}r, kw6w konst;}tyuw;}t;}r, d;}struw;}t;}r/. Every
thing is dissolved by the same means by which it is put 
together,-destroyed by the same means by which it is 
established. 
Unumquodque est id quod est principalius in ipso 
lyuwn;}mkw6dkwiy est id kwod est prins;}peyl(i)y;}s in 
ipsow/. That which is the principal part of a thing is 
the thing itself. 
Unumquodque principiorum est sibimetipsi fides; et 
perspicua vera non sunt probanda lyuwn;}mkw6d
kwiy prinsipiy6r;}m est sibaym;}tipsay filydiyz, et 
p;}rspikyuw;} vir;} n6n s;}nt pr;}bamd;}I . Every general 
principle [or maxim of law] is its own pledge or warrant; 
and things that are clearly true are not to be proved. 
Unus nullus rule, the lo;} yuwn;}s n;}l;}s ruwll. The rule 
of evidence which obtains in the civil law, that the 
testimony of one witness is equivalent to the testimony 
of none. 
Unusual. Uncommon; not usual, rare. Thompson v. 
Anderson, 107 Utah 331, 153 P.2d 665, 666. 
Unusual punishment. See Corporal punishment; Punish
ment (Cruel and unusual punishment ). 
Unvalued policy. One where the value of property 
insured is not settled in policy, and in case of loss must 
be agreed on or proved. Hartford Live Stock Ins. Co. v. 
Gibson, 256 Ky. 338, 76 S.W.2d 17, 18. 
Unwholesome food. Food not fit to be eaten; food 
which if eaten would be injurious. 
1540 
Unworthy. Unbecoming; discreditable; not having suit
able qualities or value. 
Unwritten law. All that portion of the law, observed 
and administered in the courts, which has not been 
enacted or promulgated in the form of a statute or 
ordinance, including the unenacted portions of the com
mon law, general and particular customs having the 
force of law, and the rules, principles, and maxims 
established by judicial precedents or the successive like 
decisions of the courts. See also Natural law. 
UPA. Uniform Partnership Act. 
Upkeep. The act of keeping up or maintaining; mainte
nance, repair. 
Uplands. Lands bordering on bodies of waters. 
Uplifted hand. The hand raised towards the heavens, 
in one of the forms of taking an oath, instead of being 
laid upon the Gospels. 
Upper bench. The court of king's bench, in England, 
was so called during the interval between 1649 and 
1660, the period of the commonwealth, Rolle being then 
chief justice. See 3 Bl.Comm. 202. 
Upset price. The price at which any subject, as lands or 
goods, is exposed to sale by auction, below which it is not 
to be sold. In a final decree in foreclosure, the decree 
should name an upset price large enough to cover costs 
and all allowances made by the court, receiver's certifi
cates and interest, liens prior to the bonds, amounts 
diverted from the earnings, and all undetermined claims 
which will be settled before the confirmation and sale. 
Upstreaming. Practice by parent corporation of using 
cash flow or other assets of subsidiary for its own use or 
for purposes not necessarily tied to those of subsidiary. 
U.R. Initials of "uti rogas," be it as you desire, a ballot 
thus inscribed, by which the Romans voted in favor of a 
bill or candidate. 
Urban. Of or belonging to a city or town. Within city 
limits. Derived from the Latin "urbanis," which in that 
language imports the same meaning. City of South 
Pasadena v. City of San Gabriel, 134 Cal.App. 403, 25 
P.2d 516. 
Urban homestead. See Homestead. 
Urban renewal. Comprehensive term embracing rede
velopment plan indicating its relationship to such local 
objectives as appropriate land uses, improved traffic, 
public transportation, public utilities, recreation, com
munity facilities and other public improvements. It 
also includes acquisition of air rights over highways and 
railroads which have a blighting influence if the rights 
are developed for low or moderate income housing. 
Urban servitude. In the civil law, city servitudes, or 
servitudes of houses are called ««urban." They are the 
easements appertaining to the building and construction 
of houses; as, for instance, the right to light and air, or 
the right to build a house so as to throw the rain-water 
on a neighbor'S house.

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1541 
Urbs /�rbz/. Lat. In Roman law, a city, or a walled 
town. Sometimes it is put for civitas, and denotes the 
inhabitants, or both the city and its inhabitants; i.e., the 
municipality or commonwealth. By way of special pre
eminence, urbs meant the city of Rome. 
Ure Iyur/. L. Fr. Effect; practice. Mis en ure, put in 
practice; carried into effect. 
URESA. Uniform Reciprocal Enforcement of Divorce 
Act. 
U.S. An abbreviation for "United States." 
Usage. A reasonable and lawful public custom in a 
locality concerning particular transactions which is ei
ther known to the parties, or so well established, gener
al, and uniform that they must be presumed to have 
acted with reference thereto. Practice in fact. Electri
cal Research Products v. Gross, C.C.A.Alaska, 120 F.2d 
301, 305. Uniform practice or course of conduct fol
lowed in certain lines of business or professions or some 
procedure or phase thereof. Turner v. Donovan, 3 Cal. 
App.2d 485, 39 P.2d 858, 859. Usage cannot be proved 
by isolated instances, but must be certain, uniform and 
notorious. Unkovich v. New York Cent. R. Co., 128 
N.J.Eq. 377, 16 A.2d 558, 561. Habitual or customary 
practice which prevails within geographical or sociologi
cal area, and is course of conduct based upon series of 
actual occurrences, and in order to be controlling upon 
parties to contract, it must be adopted by them, or be 
well known to parties or to persons in their circumstanc
es. Sam Levitz Furniture Co. v. Safeway Stores, Inc., 10 
Ariz.App. 225, 457 P.2d 938, 941. See also Custom and 
usage; Local usage; Trade usage. 
"Custom" distinguished. "Usage" is a repetition of acts, 
and differs from "custom" in that the latter is the law or 
general rule which arises from such repetition; while 
there may be usage without custom, there cannot be a 
custom without a usage accompanying or preceding it. 
U. S. for Use of E & R Const. Co., Inc. v. Guy H. James 
Const. Co., D.C.Tenn., 390 F.Supp. 1193, 1209. It is 
distinguished from "custom" in that "usage" derives its 
efficacy from assent of parties to transaction, and hence 
is important only in consensual agreements, while "cus
tom" derives its efficacy from its adoption into the law, 
is binding irrespective of any manifestation of assent by 
parties concerned, and may be of importance in any 
department of law. Gulf Refining Co. v. Universal Ins. 
Co., C.C.A.N.Y., 32 F.2d 555, 557. 
Fair usage. See Fair use doctrine. 
General usage. One which prevails generally through
out the country, or is followed generally by a given 
profession or trade, and is not local in its nature or 
observance. 
Usage of trade. The prevailing and accepted customs 
within a particular trade or industry. It is implied that 
merchants are cognizant of the usage of their trade. A 
usage of trade is any practice or method of dealing 
having such regularity of observance in a place, voca
tion, or trade as to justify an expectation that it will be 
observed with respect to the transaction in question. 
USE 
See U.C.C. § 1-205(2). See also Course of dealing; Trade 
usage. 
Usance. In mercantile law, the common period fixed by 
the usage or custom or habit of dealing between the 
country where a bill is drawn, and that where it is 
payable, for the payment of bills of exchange. It means, 
in some countries, a month, in others two or more 
months, and in others half a month. 
U.S.C. See United States Code. 
U.S.C.A. See United States Code Anno tated. 
U.S.D.C. United States District Court. 
Use, v. To make use of; to convert to one's service; to 
employ; to avail oneself of; to utilize; to carry out a 
purpose or action by means of; to put into action or 
service, especially to attain an end. State v. Howard, 
221 Kan. 51, 557 P.2d 1280, 1281. 
Term "use" of narcotics, for purposes of statute defin
ing offense of narcotics use, refers to act of injecting or 
ingesting controlled substance or narcotic. People v. 
Jones, 5 Dist., 189 C.A.3d 398, 234 Cal. Rptr. 408, 412. 
Use, n. Act of employing everything, or state of being 
employed; application, as the use of a pen, or his ma
chines are in use. Also the fact of being used or em
ployed habitually; usage, as, the wear and tear resulting 
from ordinary use. Berry-Kofron Dental Laboratory Co. 
v. Smith, 345 Mo. 922, 137 S.W.2d 452, 454, 455, 456. 
The purpose served; a purpose, object or end for useful 
or advantageous nature. Brown v. Kennedy, Ohio App., 
49 N.E.2d 417, 418. To put or bring into action or 
service; to employ for or apply to a given purpose. 
Beggs v. Texas Dept. of Mental Health and Mental 
Retardation, Tex.Civ.App., 496 S.W.2d 252, 254. To 
avail oneself of; to employ; to utilize; to carry out a 
purpose or action by means of; to put into action or 
service, especially to attain an end. State v. Howard, 
221 Kan. 51, 557 P.2d 1280, 128l. 
A confidence reposed in another, who was made ten
ant of the land, or terre-tenant, that he would dispose of 
the land according to the intention of the cestui que use, 
or him to whose use it was granted, and suffer him to 
take the profits. 2 Bl.Comm. 328. 
That enjoyment of property which consists in its em
ployment, occupation, exercise or practice. Central Sur. 
& Ins. Corp. v. Anderson, Tex.Civ.App., 446 S.W.2d 897, 
903. 
A right in one person, called the "cestui que use," to 
take the profits of land of which another has the legal 
title and possession, together with the duty of defending 
the same, and of making estates thereof according to the 
direction of the cestui que use. 
Uses and trusts are not so much different things as 
different aspects of the same subject. A use regards 
principally the beneficial interest; a trust regards prin
cipally the nominal ownership. The usage of the two 
terms is, however, widely different. The word "use" is 
employed to denote either an estate vested since the 
statute of uses, and by force of that statute, or to denote 
such an estate created before the statute as, had it been

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USE 
created since, would have become a legal estate by force 
of the statute. The word "trust" is employed since that 
statute to denote the relation between the party invest
ed with the legal estate (whether by force of that statute 
or independently of it) and the party beneficially enti
tled, who has hitherto been said to have the equitable 
estate. 
See also Beneficial use; Best use; Charitable use; Con
forming use; Exclusive use; Highest and best use; Non
conforming use; Public use; Raising a use; Una uthorized 
use. 
Civil law. A right of receiving so much of the natural 
profits of a thing as is necessary to daily sustenance. It 
differs from "usufruct," which is a right not only to use, 
but to enjoy. 
Conveyancing. "Use" literally means "benefit;" thus, in 
an ordinary assignment of chattels, the assignor trans
fers the property to the assignee for his "absolute use 
and benefit." In the expressions "separate use," "super
stitious use," and "charitable use," "use" has the same 
meaning. 
Non-technical sense. The "use" of a thing means that 
one is to enjoy, hold, occupy, or have some manner of 
benefit thereof. Use also means usefulness, utility, ad
vantage, productive of benefit. 
Generally 
Cestui que use. A person for whose use and benefit 
lands or tenements are held by another. The latter, 
before the statute of uses, was called the "feoffee to 
use," and held the nominal or legal title. 
Charitable use. See Charitable. 
Conditional use. See Special exception. 
Contingent use. A use limited to take effect upon the 
happening of some future contingent event; as where 
lands are conveyed to the use of A. and B., after a 
marriage shall be had between them. 
Exclusive use. See that title. 
Executed use. The first use in a conveyance upon which 
the statute of uses operates by bringing the possession to 
it, the combination of which, i.e., the use and the posses
sion, form the legal estate, and thus the statute is said to 
execute the use. 
Executory uses. These are springing uses, which confer 
a legal title answering to an executory devise; as when 
a limitation to the use of A. in fee is defeasible by a 
limitation to the use of B., to arise at a future period, or 
on a given event. 
Feoffee to uses. A person to whom (before the statute of 
uses) land was conveyed "for the use" of a third person. 
He held the nominal or legal title, while the third 
person, called the "cestui que use," was entitled to the 
beneficial enjoyment of the estate. 
Official use. An active use before the statute of uses, 
which imposed some duty on the legal owner or feoffee 
to uses; as a conveyance to A. with directions for him to 
1542 
sell the estate and distribute the proceeds among B., C., 
and D. To enable A. to perform this duty, he had the 
legal possession of the estate to be sold. 
Passive use. A permissive use (q.v.). 
Patent infringement. See Infringement. 
Permissive use. A passive use which was resorted to 
before the statute of uses, in order to avoid a harsh law; 
as that of mortmain or a feudal forfeiture. It was a 
mere invention in order to evade the law by secrecy; as 
a conveyance to A. to the use of B. A. simply held the 
possession, and B. enjoyed the profits of the estate. 
Resulting use. A use raised by equity for the benefit of 
a feoffor who has made a voluntary conveyance to uses 
without any declaration of the use. A resulting use 
arises where the legal seisin is transferred, and no use is 
expressly declared, nor any consideration or evidence of 
intent to direct the use. The use then remains in the 
original grantor, for it cannot be supposed that the 
estate was intended to be given away, and the statute 
immediately transfers the legal estate to such resulting 
use. 
Secondary use. A use limited to take effect in der
ogation of a preceding estate, otherwise called a "shift
ing use," as a conveyance to the use of A. and his heirs, 
with a proviso that, when B. returns from India, then to 
the use of C. and his heirs. 
Shifting use. A use which is so limited that it will be 
made to shift or transfer itself, from one beneficiary to 
another, upon the occurrence of a certain event after its 
creation. For example, an estate is limited to the use of 
A. and his heirs, provided that, upon the return of B. 
from Rome, it shall be to the use of C. and his heirs; this 
is a shifting use, which transfers itself to C. when the 
event happens. 2 Bl.Comm. 335. These shifting uses 
are common in all settlements; and, in marriage settle
ments, the first use is always to the owner in fee till the 
marriage, and then to other uses. The fee remains with 
the owner until the marriage, and then it shifts as uses 
arise. 
Springing use. A use limited to arise on a future event 
where no preceding use is limited, and which does not 
take effect in derogation of any other interest than that 
which results to the grantor, or remains in him in the 
meantime. 
Statute of uses. An English statute enacted in 1536 (27 
Hen. VIII, c. 10), directed against the practice of creat
ing uses in lands, and which converted the purely eq
uitable title of persons entitled to a use into a legal title 
or absolute ownership with right of possession. The 
statute is said to "execute the use," that is, it abolishes 
the intervening estate of the feoffee to uses, and makes 
the beneficial interest of the cestui que use an absolute 
legal title. 
Superstitious use. See that title. 
Use and habitation. Within a grant does not mean the 
exclusive use and habitation, but the necessities of the

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1543 
grantee are determinative of extent of privileges to be 
enjoyed. Barrett v. Barrett, La.App., 5 So.2d 381, 383. 
Use and occupation. This is the name of an action, 
being a variety of assumpsit, to be maintained by a 
landlord against one who has had the occupation and 
enjoyment of an estate, under a contract to pay therefor, 
express or implied, but not under such a lease as would 
support an action specifically for rent. Thackray v. 
Ritz, 130 Misc. 403, 223 N.Y.S. 668, 669. 
Use plaintiff. In common law pleading, one for whose 
use (benefit) an action is brought in the name of anoth
er. Thus, where the assignee of a chose in action is not 
allowed to sue in his own name, the action would be 
entitled "A. B. (the assignor) for the Use of C. D. (the 
assignee) against E. F." In this case, C. D. is called the 
"use plaintiff." 
Usee. A person for whose use a suit is brought; other
wise termed the "use plaintiff." 
Useful. The basic quid pro quo contemplated by the 
Constitution and the congress for granting a patent 
monopoly is the benefit derived by the public from an 
invention with substantial utility. Specific benefit must 
exist in currently available form. Brenner v. Manson, 
383 U.S. 519, 534, 535, 86 S.Ct. 1033, 1041, 1042, 16 
L.Ed.2d 69. By "useful" is meant such an invention as 
may be applied to some beneficial use in society, in 
contradistinction to an invention which is illegal, injuri
ous to morals or against public policy. 
Useful life. In accounting and taxation, the period of 
time for which an asset is capable of being used for the 
production of income. 
For income tax purposes, the "useful life" of deprecia
ble property is period over which asset may reasonably 
be expected to be useful to taxpayer in his trade or 
business or in production of income, and such is neces
sarily an estimate made at time when property is first 
put to use. Cohn v. U. S., C.A.Tenn., 259 F.2d 371, 377. 
Useful life for depreciation purposes is an estimate; 
length of the useful period must be shown by evidence 
that allows it to be estimated with reasonable accuracy. 
Richard S. Miller & Sons, Inc. v. U. S., Ct.Cl., 537 F.2d 
446, 455. The term "depreciable life," as used in gener
al excise tax law, is synonymous with the term "useful 
life" as used for purpose of the depreciation deduction 
under income tax law. Matter of 711 Motors, Inc., 56 
Hawaii 644, 547 P.2d 1343, 1347. 
Usefulness. Capabilities for use. The word pertains to 
the future as well as to the past. 
Use immunity. Term generally refers to order of court 
which compels witness to give testimony of self-incrimi
nating nature but provides that such testimony may not 
be used as evidence in subsequent prosecution of such 
witness. People v. Koba, 55 Ill.App.3d 298, 13 Ill.Dec. 
306, 371 N.E.2d 1. Such immunity protects a witness 
only against actual use of his compelled testimony and 
evidence derived directly or indirectly therefrom, while 
"transactional immunity" protects the person against 
all later prosecutions relating to matters about which he 
USHER OF THE BLACK ROD 
testifies. People v. Sutter, 134 C.A.3d 806, 184 Cal.Rptr. 
829, 833. See also Immunity. 
Use in commerce. A prerequisite for trademark regis
tration. An applicant must show a bona fide intention 
to use the mark in commerce with respect to the goods 
or services for which registration is sought and not 
merely to reserve any rights in a mark. 15 U.S.C.A. 
§ 1051(b). See also Trademark. 
User. The actual exercise or enjoyment of any right, 
property, drugs, franchise, etc. 
Adverse user. Such a use of the property under claim of 
right as the owner himself would make, asking no per
mission, and disregarding all other claims to it, so far as 
they conflict with this use. See also Adverse possession. 
User de action /yliwzar drekshan/. L. Fr. In old prac
tice, the pursuing or bringing an action. 
User fee. Charges imposed on persons for the use of a 
particular facility. A charge designed only to make the 
user of state-provided facilities pay a reasonable fee to 
help defray the costs of their construction and mainte
nance may be constitutionally imposed on interstate and 
domestic users alike. Evansville-Vanderburgh A.A. 
Dist. v. Delta Airlines, Inc., 405 U.S. 707, 714, 92 S.Ct. 
1349, 1354, 31 L.Ed.2d 620. Such charges are usually 
upheld as long as they are neither discriminatory nor 
excessive. 
Use tax. A sales tax that is collectible by the seller 
where the purchaser is domiciled in a different state. A 
tax on the use, consumption, or storage of tangible 
property, usually at the same rate as the sales tax, and 
levied for the purpose of preventing tax avoidance by 
the purchase of articles in a state or taxing jurisdiction 
which does not levy sales taxes or has a lower rate. A 
tax on the use, consumption, or storage of tangible 
property, usually at the same rate as the sales tax, and 
levied for the purpose of preventing tax avoidance by 
the purchase of articles in a state or taxing jurisdiction 
which does not levy sales taxes or has a lower rate. 
A levy on privilege of using, within taxing state, 
property purchased outside the state, if the property 
would have been subject to the sales tax had it been 
purchased at home. King v. L & L Marine Service, Inc., 
Mo., 647 S.W.2d 524, 526. Such tax ordinarily serves to 
complement sales tax by eliminating incentive to make 
major purchases in states with lower sales taxes; it 
requires resident who shops out-of-state to pay use tax 
equal to sales tax savings. Minneapolis Star and Trib
une Co. v. Minnesota Com'r of Revenue, U.S.Minn., 460 
U.S. 575, 103 S.Ct. 1365, 1370, 75 L.Ed.2d 295. 
Use variance. See Variance. 
Usher. This word is said to be derived from "huissier," 
and is the name of a subordinate officer in some English 
courts of law. 
Usher of the Black Rod. In old English law, the 
gentleman usher of the black rod is an officer of the 
House of Lords appointed by letters patent from the 
crown. The office was instituted in 1350. So named for

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USHER OF THE BLACK ROD 
the staff of office, an ebony stick surmounted with a gold 
lion. His duties are, by himself or deputy, to desire the 
attendance of the Commons in the House of Peers when 
the royal assent is given to bills, either by the king or 
queen in person or by commission, to execute orders for 
the commitment of persons guilty of breach of privilege, 
and also to assist in the introduction of peers when they 
take the oaths and their seats. As to the first he must 
knock three times at the door of the House of Commons 
to announce the entry, a ceremony dating from the 
House's indignation at Charles I's attempt to arrest 
Pym, Hampden and 3 other members of the House in 
1642. 
Using mail to defraud. The elements of this offense are 
the formation of a scheme or artifice to defraud, and use 
of mails for purpose of executing or attempting to exe
cute such scheme or artifice; the latter element being 
gist of the offense. 18 U.S.C.A. § 1341. Stryker v. 
United States, C.C.A.Colo., 95 F.2d 601, 604, 605. The 
crime is complete when mails are used in such scheme, 
and what happened subsequently is not controlling. 
United States v. Ames, D.C.N.Y., 39 F.Supp. 885, 886. 
See Mail fraud. 
Using the service of another for pay. This phrase as 
used in Compensation Act defining employer means 
right to control the means and manner of that service, 
as distinguished from results of such service; the word 
"service" meaning the performance of labor for the 
benefit of another. Rutherford v. Tobin Quarries, 336 
Mo. 1171, 82 S.W.2d 918, 923. 
Uso luwsow/. In Spanish law, usage; that which arises 
from certain things which men say and do and practice 
uninterruptedly for a great length of time, without any 
hindrance whatever. 
Usque I�skwiy/. Lat. Up to; until. This is a word of 
exclusion, and a release of all demands usque ad a 
certain day does not cover a bond made on that day. 
Usually applied to ownership of property. Applied to 
right to air it has been held that ownership extends 
"usque ad coelum. " See A crelo usque ad centrum. 
Usque ad filum aqure, or vire I�skwiy red fayl;}m 
rekwiy/"vayiy/. Up to the middle of the stream or road. 
Usual. Habitual; ordinary; customary; according to 
usage or custom; commonly established, observed, or 
practiced. That which happens in common use or oc
curs in ordinary practice or course of events. Synon
ymous with custom, common, normal, regular. Dancy v. 
Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 
526, 528. 
Usual covenants. See Covenant. 
Usual place of abode. Within meaning of statute or 
rule relating to service of process is place where defen
dant is actually living at time of service; is place where 
person would most likely have knowledge of service of 
process and is generally considered to be place where 
person is living at time of service. Plonski v. Halloran, 
36 Conn.Sup. 335, 420 A.2d 117. See Domicile; Resi
dence. 
1544 
Usual terms. A phrase in the common-law practice, 
which meant pleading issuably, rejoining gratis, and 
taking short notice of trial. When a defendant obtained 
further time to plead, these were the terms usually 
imposed. 
Usuarius Iyuwsyuweriy;}s/. Lat. In the civil law, one 
who had the mere use of a thing belonging to another 
for the purpose of supplying his daily wants; a usuary. 
Usucapio, or usucaptio Iyuwsyuwkeyp(i)yow/yuws
yuwkrepsh(iy)ow/. A term of Roman law used to denote 
a mode of acquisition of property. It corresponds very 
nearly to the term "prescription." But the prescription 
of Roman law differed from that of the English law, in 
this: that no mala fide possessor (i.e., person in posses
sion knowingly of the property of another) could, by 
however long a period, acquire title by possession mere
ly. The two essential requisites to usucapio were justa 
causa (i.e., title) and bona fides (i.e., ignorance). The 
term "usucapio" is sometimes, but erroneously, written 
"usucaptio." As to "lucrativa usucapio," see that title. 
Usucapio constituta est ut aliquis litium finis esset 
Iyuwsyuwkeyp(i)yow konst;}t(y)uwt;} est :)d rel;}kw;}s 
lish(iy);}m fayn;}s es;}t/. Prescription was instituted that 
there might be some end to litigation. 
Usufruct Iyuwz(y);}fr�kt/. In the civil law, a real right 
of limited duration on the property of another. The 
features of the right vary with the nature of the things 
subject to it as consumables or nonconsumables. Civ. 
Code La. art. 535. The right of using and enjoying and 
receiving the profits of property that belongs to another, 
and a "usufructuary" is a person who has the usufruct 
or right of enjoying anything in which he has no proper
ty interest. Marshall v. Marshall, Tex.App.-Dallas, 
735 S.W.2d 587, 598. 
There are three types of "usufructs": natural profits 
produced by the subject of the usufruct, industrial prof
its produced by cultivation, and civil profits, which are 
rents, freights and revenues from annuities and from 
other effects or rights. Marshall v. Marshall, Tex.App. 
-Dallas, 735 S.W.2d 587, 598. See also Legal Usufruct. 
Usufructuary Iyuwz(y);}fr�ktyuw;}riy/. In the civil law, 
one who has the usufruct or right of enjoying anything 
in which he has no property. 
Usufruit Iyuwz(y);}fruwt/. In French law, the same as 
the usufruct of the English and Roman law. 
Usura lyuwz(y)ur;}/. Lat. In the civil law, money given 
for the use of money; interest. Commonly used in the 
plural, "usurre" Iyuwz(y)uriy/yuwzh;}riy/. 
Usura est commodum certum quod propter usum rei 
mutuatre recipitur. Sed secundario spirare de ali
qua retributione, ad voluntatem ejus qui mutuatus 
est, hoc non est vitiosum Iyuwz(y)ur;} est k6m;}d;}m 
s;}rt;}m kwod pr6pt;}r yuws;}m riyay myuwtyuweytiy 
r;}sip;}t;}r. sed sek;}nderiyow sp;}reriy diy rel;}kw;} 
retr;}b(y)uwshiy6wniy, red vol;}nteyt;}m lYJ;}S kway 
myuwtyuweyt;}s est, h6k n6n est vishiy6ws;}m/. Usury 
is a certain benefit which is received for the use of a 
thing lent. But to have an understanding [literally, to

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1545 
breathe or whisper], in an incidental way, about some 
compensation to be made at the pleasure of the borrow
er, is not lawful. 
Usura manifesta /yuwz(y)ur� mren�fest�/. Manifest or 
open usury; as distinguished from usura velata, veiled 
or concealed usury, which consists in giving a bond for 
the loan, in the amount of which is included the stipu
lated interest. 
Usura maritima /yuwz(y)ur� m�rit�m�rmrer�taym�/. 
Interest taken on bottomry or respondentia bonds, 
which is proportioned to the risk, and is not affected by 
the usury laws. 
Usurarius /yuwzh�reriy�s/. In old English law, a usur
er. 
Usurious /yuwzhuriy�s/. Pertaining to usury; partak
ing of the nature of usury; involving usury; tainted 
with usury; as, a usurious contract. See Usury. 
Usurious contract. A contract where interest to be 
paid exceeds the rate established by statute. Commerce 
Farm Credit Co. v. Ramp, Tex.Civ.App., 116 S.W.2d 
1144, 1149. See also Usury. 
Usurp /yuws�rp/. To seize and hold any office by force, 
and without right; applied to seizure of office, place, 
functions, powers, rights, etc. of another. State ex reI. 
Scanes v. Babb, 124 W.Va. 428, 20 S.E.2d 683, 686. 
Usurpatio /yuws�rpeysh(iy)ow/. Lat. In the civil law, 
the interruption of a usucaption, by some act on the part 
of the real owner. 
Usurpation /yuws�rpeysh�n/. The unlawful encroach
ment or assumption of the use of property, power or 
authority which belongs to another. An interruption or 
the disturbing a man in his right and possession. 
The unlawful seizure or assumption of sovereign pow
er. The assumption of government or supreme power 
by force or illegally, in derogation of the constitution 
and of the rights of the lawful ruler. 
Usurpation for which writ of prohibition may be 
granted involves attempted exercise of power not pos
sessed by inferior officer. 
Usurpation of advowson /yuws�rpeysh�n �v 
�dvawz�n/. An injury which consists in the absolute 
ouster or dispossession of the patron from the advowson 
or right of presentation, and which happens when a 
stranger who has no right presents a clerk, and the 
latter is thereupon admitted and instituted. 
Usurpation of franchise or office /yuws�rpeysh�n �v 
framchayz �r 6f�s/. The unjustly intruding upon or 
exercising any office, franchise, or liberty belonging to 
another. "Usurpation" of public office authorizing quo 
warranto action under statute may be with or without 
forcible seizure of office and prerogatives thereof, and 
may consist of mere unauthorized assumption and exer
cise of power in performing duties of office upon claim of 
right thereto. State ex reI. Kirk v. Wheatley, 133 Ohio 
St. 164, 12 N.E.2d 491, 493, 10 0.0. 236. See also 
Usurpation. 
USUS BELLICI 
Usurped power. See Usurp; Usurpation. 
Usurper. One who assumes the right of government by 
force, contrary to and in violation of the constitution of 
the country. 
Usurper of a public office. One who either intrudes 
into a vacant office or ousts the incumbent without any 
color of title. Neal v. Parker, 200 Ark. 10, 139 S.W.2d 
41, 44. One who intrudes on office and assumes to 
exercise its functions without legal title or color of right 
thereto. Alleger v. School Dist. No. 16, Newton County, 
Mo.App., 142 S.W.2d 660, 663. Any person attempting 
to fill pretended office attempted to be created by an 
unconstitutional law. Bodcaw Lumber Co. of Louisiana 
v. Jordan, La.App., 14 So.2d 98, 101. 
Usury. Charging an illegal rate of interest. Collective
ly, the laws of a jurisdiction regulating the charging of 
interest rates. A usurious loan is one whose interest 
rates are determined to be in excess of those permitted 
by the usury laws. An illegal contract for a loan or 
forbearance of money, goods, or things in action, by 
which illegal interest is reserved, or agreed to be re
served or taken. An unconscionable and exorbitant rate 
or amount of interest. An unlawful contract upon the 
loan of money, to receive the same again with exorbitant 
increase. The reserving and taking, or contracting to 
reserve and take, either directly or by indirection, a 
greater sum for the use of money than the lawful 
interest. See also Legal interest; Loansharking; Usury 
laws. 
Old English law. Interest of money; increase for the 
loan of money; a reward for the use of money. 2 
Bl.Comm. 454. The taking of any compensation whatev
er for the use of money. 
Usury laws. Statutes that prohibit finance charges (in
terest and other forms of compensation for loaning mon
ey) above a certain level for debt. See 18 U.S.C.A. § 891 
et seq. with respect to extortionate credit transactions. 
See also Loan sharking; Usury. 
Usus /yuws�s/. Lat. In Roman law, a precarious enjoy
ment of land, corresponding with the right of habitatio 
of houses, and being closely analogous to the tenancy at 
sufferance or at will of English law. The usuarius (i.e., 
tenant by usus) could only hold on so long as the owner 
found him convenient, and had to go so soon as ever he 
was in the owner's way (molestus). The usuarius could 
not have a friend to share the produce. It was scarcely 
permitted to him (Justinian says) to have even his wife 
with him on the land; and he could not let or sell, the 
right being strictly personal to himself. 
Usus bellici /yuws�s bel�say/. Lat. In international 
law, warlike uses or objects. It is the usus bellici which 
determine an article to be contraband. 
Usus est dominium fiduciarium /yuws�s est d�miniy�m 
f�d(y)uwshiyeriy�m/. Use is a fiduciary dominion. 
Usus et status sive possessio potius differunt secun
dum rationem fori, quam secundum rationem rei 
/yuws�s et steyt�s sayviy p�zesh(iy)ow powsh(iy)�s 
dif�r�nt s�k�nd�m rreshiyown�m foray, kwrem s�k�nd�m 
rreshiyown�m riyay /. Use and estate, or possession,

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USUS FRUCTUS 
differ more in the rule of the court than in the rule of 
the matter. 
Usus fructus /yuws�s fr;}kt�s/. Lat. In Roman law, 
usufruct; usufructuary right or possession. The tempo
rary right of using a thing, without having the ultimate 
property, or full dominion, of the substance. 2 Bl. 
Comm. 327. 
Utas /yuwt�s/. In old English practice, octave; the 
octave; the eighth day following any term or feast. 
Ut currere solebat / �t k;}hr�riy s�liybret/. Lat. As it 
was wont to run; applied to a water-course. 
Ut de feodo /;}t diy fyuwdow/. L. Lat. As of fee. 
Uterine /yuwt�r�n/. Born of the same mother. A uter
ine brother or sister is one born of the same mother, but 
by a different father. 
Utero-gestation / yuwt�rowjesteysh�n/. Pregnancy. 
Uterque /yuwt;}rkwiy/. Lat. Both; each. "The jus
tices, being in doubt as to the meaning of this word in an 
indictment, demanded the opinions of grammarians, 
who delivered their opinions that this word doth aptly 
signify one of them." 
Utfangthef, or utfangenethef / awtfrelJ(�n)(Jiyf/. In Sax
on and old English law, the privilege of a lord of a 
manor to judge and punish a thief dwelling out of his 
liberty, and committing theft without the same, if he 
were caught within the lord's jurisdiction. 
The right of the lord of a manor to hang a thief caught 
with the stolen goods, whether or not the capture was 
made on the manor. See Infangenthef. 
Ut hospites /�t hosp�tiyz/. Lat. As guests. 
Uti /yuwtay/. Lat. In the civil law, to use. Strictly, to 
use for necessary purposes; as distinguished from 
"frui," to enjoy. 
Uti frui /yuwtay fruway/. Lat. In the civil law, to have 
the full use and enjoyment of a thing, without damage 
to its substance. 
Utile per inutile non vitiatur /yuwt�liy p�r inyuwt�liy 
non vishiyeyt�r /. The useful is not vitiated by the 
useless. Surplusage does not spoil the remaining part if 
that is good in itself. 
Utilidad /uwtiliyoad/. Span. In Spanish law, the profit 
of a thing. 
Utilis /yuwt�l�s/. Lat. In the civil law, useful; benefi
cial; equitable; available. Actio utilis, an equitable 
action. Dies utilis, an available day. 
Utility. In patent law, a patent applicant must demon
strate that his invention performs some function that is 
of benefit to society. This utility requirement is in 
addition to the requirements of non-obviousness and 
novelty. Examples of items that have been held to lack 
utility include devices the sole purposes of which were 
immoral (Mitchell v. Tilghman, 86 U.S. (19 Wall.) 287, 
22 L.Ed. 125), and compositions of matter that, although 
new, have no purpose other than further research. 
1546 
Brenner v. Manson, 383 U.S. 519, 86 S.Ct. 1033, 16 
L.Ed.2d 69. 
Utility is established if only partial success is at
tained. Emery Industries v. Schumann, C.C.A.Ill., 111 
F.2d 209, 211. 
Uti possidetis /yuwtay p�sidiyeyt�s/. Lat. Civil law. 
A species of interdict for the purpose of retaining posses
sion of a thing, granted to one who, at the time of 
contesting suit, was in possession of an immovable thing, 
in order that he might be declared the legal possessor. 
See Utrubi. 
International law. A phrase used to signify that the 
parties to a treaty are to retain possession of what they 
have acquired by force during the war. A treaty which 
terminates a war may adopt this principle or that of the 
status quo ante bellum, or a combination of the two. In 
default of any treaty stipulation, the former doctrine 
prevails. Guillermo Alvarez y Sanches v. U. S., 42 Ct.Cl. 
458. 
Uti rogas /yuwtay rowg�s/. Lat. In Roman law, the 
form of words by which a vote in favor of a proposed law 
was orally expressed. Uti rogas, volo vel jubeo, as you 
ask, I will or order; I vote as you propose; I am for the 
law. The letters "U. R." on a ballot expressed the same 
sentiment. 
Utlagatus, or utlagatum /�tbgeyt�sr�m/. In old Eng
lish law, an outlawed person; an outlaw. 
Utlagatus est quasi extra legem positus. Caput gerit 
lupinum / �tl�geyt�s est kweysay ekstr� liyj�m poz�t�s. 
krep�t jer�t l(y)uwpayn�m/. An outlaw is, as it were, 
put out of the protection of the law. He bears the head 
of a wolf. 
Utlagatus pro contumacia et fuga, non propter hoc 
convictus est de facto principali / �tl�geyt�s prow 
kont�meysh(iy)� et fyuwg�, non propt�r hok k�nvikt�s 
est diy frektow prins�peylay /. One who is outlawed for 
contumacy and flight is not on that account convicted of 
the principal fact. 
Utlage. L. Fr. An outlaw. 
Utlesse. An escape of a felon out of prison. 
Utmost care. Term is substantially synonymous with 
"highest care." 
Utmost resistance. This term, under the rule that to 
constitute rape there must be utmost resistance by the 
woman, is a relative rather than a positive term, and 
means that greatest effort of which she is capable must 
be used to foil assailant. Most states have eliminated 
this as a requirement to prove nonconsent in rape cases; 
e.g. State v. Salkil, Mo., 659 S.W.2d 330. 
Ut prene ad paucos, metus ad omnes perveniat /�t 
piyniy red pokows, miyt�s red omniyz p�rviyn(i)y�tI. 
That the punishment may reach a few, but the fear of it 
affect all. A maxim in criminal law, expressive of one 
of the principal objects of human punishment. 4 Bl. 
Comm. 11.

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1547 
Ut res magis valeat quam pereat /:}t riyz meyj�s 
v(Hiy�t kwrem pehriy�t/. That the thing may rather 
have effect than be destroyed. Charitable bequests are 
also governed by this maxim. King v. Richardson, C.C. 
A.N.C., 136 F.2d 849, 858. 
Utrubi /�tr�bay/. In the civil law, the name of a species 
of interdict for retaining a thing, granted for the pur
pose of protecting the possession of a movable thing, as 
the uti possidetis was granted for an immovable. 
Utrumque nostrum /yuwtr�mkwiy nostr�m/. Both of 
us. Words used formerly in bonds. 
Ut summre potestatis regis est posse quantum velit, 
sic magnitudinis est velIe quantum possit /:}t s�miy 
powd�steyt�s riyj�s est posiy kwont�m viyl�t, sik 
mregn�t(y)uwd�n�s est veliy kwont�m pos�t/. As the 
highest power of a king is to be able to do all he wishes, 
so the highest greatness of him is to wish all he is able 
to do. 
Utter, v. To put or send (as a forged check) into circula
tion; to publish or put forth; to offer. To utter and 
publish an instrument, as a counterfeit note, is to de
clare or assert, directly or indirectly, by words or ac
tions, that it is good; uttering it is a declaration that it 
is good, with an intention or offer to pass it. To utter, 
as used in a statute against forgery and counterfeiting, 
means to offer, whether accepted or not, a forged instru
ment, with the representation, by words or actions, that 
the same is genuine. 
The phrase "utters or publishes as true", as used in 
federal forgery statute, means to make or attempt any 
use of a written or printed instrument or document, 
such as an attempt to place a check in circulation (as 
when it is presented for payment), whereby, or in con
nection with which, some assertion, representation or 
claim is made to another in some way or manner, 
directly or indirectly, expressly or impliedly, or by words 
or conduct, that the check or document is genuine. 
United States v. Rader, W.D.Ark., 185 F.Supp. 224, affd 
288 F.2d 452. 
Uttering a forged instrument. The crime of passing a 
false or worthless instrument, such as a check, or coun
terfeit security, with the intent to defraud or injure the 
UXORICIDE 
recipient. See e.g. 18 U.S.C.A. §§ 472, 479, 483. See 
Counterfeit; Forgery; Utter. 
Utter, adj. Entire; complete; absolute; total. 
Utterance. See Excited utterance; Spontaneous declara
tions. 
Utter bar. In English law, the bar at which those 
barristers, usually junior men, practice who have not yet 
been raised to the dignity of king's counsel. These 
junior barristers are said to plead without the bar; 
while those of the higher rank are admitted to seats 
within the bar, and address the court or a jury from a 
place reserved for them, and divided off by a bar. Also 
called "outer bar." 
Utter barrister. In English law, those barristers who 
plead without the bar, and are distinguished from 
benchers, or those who have been readers, and who are 
allowed to plead within the bar, as the king's counsel 
are. 
Uxor /�ksor/. Lat. In the civil law, a wife; a woman 
lawfully married. 
Et uxor. And his wife. A term used in indexing, 
abstracting, and describing conveyances made by a man 
and his wife as grantors, or to a man and his wife as 
grantees. Often abbreviated "et ux. " Thus, "John Doe 
et ux. to Richard Roe." 
Jure uxoris. In right of his wife. A term used of a 
husband who joins in a deed, is seised of an estate, 
brings a suit, etc., in the right or on the behalf of his 
wife. 3 Bl.Comm. 210. 
Uxor et filius sunt nomina naturre / �ksor et filiy�s s:}nt 
nom�n� n�tyuriy /. Wife and son are names of nature. 
Uxoricide / :}ksor�sayd/. The killing of a wife by her 
husband; one who murders his wife. Not a technical 
term of the law. 
Uxor non est sui juris, sed sub potestate viri /�ksor 
non est s(y)uway jur�s, sed s:}b powt�steytiy viray/. A 
wife is not her own mistress, but is under the power of 
her husband. 
Uxor sequitur domicilium viri /�ksor sekw�t�r 
dom�sil(i)y�m viray /. A wife follows the domicile of her 
husband.

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v 
V. As an abbreviation, this letter may stand for "Victo
ria," "volume," or "verb;" also "vide" (see) and "voce" 
(word). It is also a common abbreviation of "versus," in 
the titles of causes, and reported cases. 
V.A. Veterans Affairs (Department of); Veterans Ad
ministration. See Veterans Adminis tration. 
Vacancy. A place or position which is empty, unfilled, 
or unoccupied. An unoccupied or unfilled post, position, 
or office. An existing office, etc., without an incumbent. 
The state of being destitute of an incumbent, or a proper 
or legally qualified officer. The term is principally 
applied to an interruption in the incumbency of an 
office, or to cases where the office is not occupied by one 
who has a legal right to hold it and to exercise the rights 
and perform the duties pertaining thereto. The word 
"vacancy," when applied to official positions, means, in 
its ordinary and popular sense, that an office is unoccu
pied, and that there is no incumbent who has a lawful 
right to continue therein until the happening of a future 
event, though the word is sometimes used with reference 
to an office temporarily filled. 
A strip of unsurveyed and unsold public lands. 
Hughes v. Rhodes, Tex.Civ.App., 137 S.W.2d 820, 82l. 
See also Vacant. 
Vacant. Empty; unoccupied; as, a "vacant" office or 
parcel of land. Deprived of contents, without inanimate 
objects. It implies entire abandonment, nonoccupancy 
for any purpose. Foley v. Sonoma County Farmers' 
Mut. Fire Ins. Co. of Sonoma, Cal.App., 108 P.2d 939, 
942. Absolutely free, unclaimed, and unoccupied. 
In fire policy insuring dwelling, term "vacant" means 
empty, without inanimate objects, deprived of contents; 
a thing is vacant when there is nothing in it; "vacant" 
means abandoned and not used for any purpose. Alcock 
v. Farmers Mut. Fire Ins. Co. of DeKalb County, Mo. 
App., 591 S.W.2d 126, 128. 
See also Vacancy, and as to vacant Possession and 
Succession, see those titles. 
Vacantia bona /v;}krensh(iy);} b6wn;}/. Lat. In the civil 
law, goods without an owner, or in which no one claims 
a property; escheated goods. 
Vacate. To annul; to set aside; to cancel or rescind. To 
render an act void; as, to vacate an entry of record, or a 
judgment. As applied to a judgment or decree it is not 
synonymous with "suspend" which means to stay en
forcement of judgment or decree. 
To put an end to; as, to vacate a street. To move out; 
to make vacant or empty; to leave; especially, to sur
render possession by removal; to cease from occupancy. 
See also Annul; Reverse; Vacancy. 
Vacatio /v;}keysh(iy)ow/. Lat. In the civil law, exemp
tion; immunity; privilege; dispensation; exemption 
from the burden of office. 
Vacation. A recess or leave of absence; a respite or 
time of respite from active duty or employment; an 
intermission or rest period during which activity or 
-work is suspended. It is a period of freedom from duty 
or work, but not the end of employment. In re Dauber, 
151 Pa.Super. 293, 30 A.2d 214, 216. The act or result 
of vacating. An intermission of procedure. It is not a 
termination of the relation of master and servant or 
employer and employee. In schools, there are custom
ary vacations at Christmas, Easter, other holidays, and 
during the summer. 
That period of time between the end of one term of 
court and the beginning of another. Compare Recess. 
Vacation of judgment. The setting aside of a judgment 
on grounds that it was issued by mistake, inadver
tence, surprise, excusable neglect or fraud. While the 
term "vacate" has been replaced by Fed.R.Civil P. 60, 
the basis for relief from judgment is the same as former
ly when one sought to vacate a judgment. 
Vacatur /v;}keyt;}r/. Lat. Let it be vacated. In prac
tice, a rule or order by which a proceeding is vacated; a 
vacating. 
Vacatura /veyk;}t(y)ur;}/. An avoidance of an ecclesiasti
cal benefice. 
Vacua possessio /vrekyuw;} p;}zesh(iy)ow/. Lat. The 
vacant possession, i.e., free and unburdened possession, 
which (e.g.) a vendor had and has to give to a purchaser 
of lands. 
Vacuity /v;}kyuw;}tiy/. Emptiness; vacancy; want of 
reality; nihility. 
Vacuus /vrekyuw;}s/. Lat. In the civil law, empty; void; 
vacant; unoccupied. 
Vadelet /vrel;}t/. See Valec, valect, or vadelet. 
Vades /veydiyz/. Lat. In the civil law, pledges; sure
ties; bail; security for the appearance of a defendant or 
accused person in court. 
Vadiare duellum /vrediyeriy d(y)uwel;}m/. L. Lat. In 
old English law, to wage or gage the duellum; to wage 
1548

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1549 
battle; to give pledges mutually for engaging in the trial 
by combat. 
Vadimonium /vred�m6wn(i)y�m/. Lat. In Roman law, 
bail or security; the giving of bail for appearance in 
court; a recognizance. An ancient form of suretyship. 
Vadium /veyd(i)y�m/. Lat. A pledge; security by 
pledge of property. 
Vadium mortuum /veyd(i)y�m m6rtyuw�m/. A mort
gage or dead pledge; a security given by the borrower of 
a sum of money, by which he grants to the lender an 
estate in fee, on condition that, if the money be not 
repaid at the time appointed, the estate so put in pledge 
shall continue to the lender as dead or gone from the 
mortgagor. 2 Bl.Comm. 157. 
Vadium ponere /veyd(i)y�m p6wn�riy /. To take bail for 
the appearance of a person in a court of justice. 
Vadium vivum /veyd(i)y�m vayv�m/. A species of se
curity by which the borrower of a sum of money made 
over his estate to the lender until he had received that 
sum out of the issues and profits of the land. It was so 
called because neither the money nor the lands were 
lost, and were not left in dead pledge, but this was a 
living pledge, for the profits of the land were constantly 
paying off the debt. 
Vadlet /vredl�t/. In old English law, the king's eldest 
son; hence the valet or knave follows the king and 
queen in a pack of cards. 
Vadum /veyd�m/. In old records, a ford, or wading 
place. 
Vagabond. A vagrant or homeless wanderer without 
means of honest livelihood. Neering v. Illinois Cent. R. 
Co., 383 Ill. 366, 50 N.E.2d 497, 502. One who wanders 
from place to place, having no fixed dwelling, or, if he 
has one, not abiding in it; a wanderer, especially such a 
person who is lazy and generally worthless and without 
means of honest livelihood. See also Vagrant. 
Vagabonds are described in old English statutes as 
"such as wake on the night and sleep on the day, and 
haunt customable taverns and ale-houses and routs 
about; and no man wot from whence they came, nor 
whither they go." 4 Bl.Comm. 169. 
Vagabundum nuncupamus eum qui nullibi domicili
um contraxit habitationis /vreg�b�nd�m n;)IJk�peym�s 
iy�m kway n�l�bay dom�sil(i)y�m k�ntrreks�t hreb�tey
shiy6wn�s/. We call him a "vagabond" who has ac
quired nowhere a domicile of residence. 
Vagrancy. At common law, the act of going about from 
place to place by a person without visible means of 
support, who is idle, and who, though able to work for 
his or her maintenance, refuses to do so, but lives 
without labor or on the charity of others. 
As defined by Kansas Criminal Code, vagrancy is: (a) 
Engaging in an unlawful occupation; or (b) Being of the 
age of eighteen (18) years or over and able to work and 
without lawful means of support and failing or refusing 
to seek employment; or (c) Loitering in any community 
without visible means of support; or (d) Loitering on the 
VAGUENESS DOCTRINE 
streets or in a place open to the public with intent to 
solicit for immoral purposes; or (e) Deriving support in 
whole or in part from begging. KSA 21-4108. State 
vagrancy statutes, however, vary greatly, and many 
have been declared unconstitutional because, as drawn, 
they purport to punish conduct which is not criminal or 
are worded too vaguely to inform persons of the nature 
of the act declared criminal; e.g. Papachristou v. City of 
Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 
L.Ed.2d 110. 
Vagrancy laws. See Vagrancy; Visible means of support. 
Vagrant. At common law, wandering or going about 
from place to place by idle person who had no lawful or 
visible means of support and who subsisted on charity 
and did not work, though able to do so. State v. Har
lowe, 174 Wash. 227, 24 P.2d 601. 
A general term, including, in English law, the several 
classes of idle and disorderly persons, rogues, and vaga
bonds, and incorrigible rogues. 
One who wanders from place to place; an idle wander
er, specifically, one who has no settled habitation, nor 
any fixed income or livelihood. A vagabond; a tramp. 
A person able to work who spends his time in idleness or 
immorality, having no property to support him and 
without some visible and known means of fair, honest 
and reputable livelihood. State v. Oldham, 224 N.C. 
415, 30 S.E.2d 318, 319. One who is apt to become a 
public charge through his own laziness. People, on 
Complaint of McDonough, v. Gesino, Sp.Sess., 22 N.Y. 
S.2d 284, 285. 
See Vagabond; Vagrancy. 
Vagrant act. In English law, the statute 5 Geo. IV, c. 
83, which is an act for the punishment of idle and 
disorderly persons. The act of 17 Geo. II divided va
grants into idle and disorderly persons; rogues and 
vagabonds; and incorrigible rogues. Other statutes 
were passed as late as 32 Geo. III bearing on this 
subject. 
Vague. Indefinite. Uncertain; not susceptible of being 
understood. For purposes of determining whether stat
ute is constitutionally infirm by reason of being vague, 
statute is "vague" if its prohibitions are not clearly 
defined, State v. Fry, 218 Neb. 558, 357 N.W.2d 216, 218; 
or if it does not provide explicit standards for its enforce
ment, Pliscou v. Holtville Unified School Dist., D.C.Cal., 
411 F.Supp. 842, 850. See also Vagueness doctrine. 
Vagueness doctrine. Under this principle, a law (e.g., 
criminal statute) which does not fairly inform a person 
of what is commanded or prohibited is unconstitutional 
as violative of due process. The doctrine originates in 
due process clause of Fourteenth Amendment, and is 
basis for striking down legislation which contains insuf
ficient warning of what conduct is unlawful. McCrary 
v. State, Ala.Cr.App., 429 So.2d 1121, 1123. It requires 
that penal statutes give notice to ordinary person of 
what is prohibited and provide definite standards to 
guide discretionary actions of police officers so as to 
prevent arbitrary and discriminatory law enforcement. 
Porta v. Mayor, City of Omaha, Neb., D.C.Neb., 593

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VAGUENESS DOCTRINE 
F.Supp. 863, 865. See also Vague; Void for vagueness 
doctrine. 
Vale Ivaley/veliy/. In Spanish law, a promissory note. 
Valeat quantum valere potest IVci:!liyat kwontam valiriy 
powtast/. It shall have effect as far as it can have 
effect. 
Valec, valect, or vadelet Ivrelatl. In old English law, a 
young gentleman; also a servitor or gentleman of the 
chamber. 
Valentia Ival€msh(iy)a/. L. Lat. The value or price of 
anything. 
Valesheria Ivrelashir(i)ya/. In old English law, the prov
ing by the kindred of the slain, one on the father's side, 
and another on that of the mother, that a man was a 
Welshman. See Engleshire. 
Valet Ivreley/vreley/. Anciently, a name denoting young 
gentlemen of rank and family, but afterwards applied to 
those of lower degree; now used for a personal servant, 
more particularly for hotel employee who performs per
sonal services for guests. 
Valid. Having legal strength or force, executed with 
proper formalities, incapable of being rightfully over
thrown or set aside. Bennett v. State, 46 Ala.App. 535, 
245 So.2d 570, 572. Founded on truth of fact; capable of 
being justified; supported, ,or defended; not weak or 
defective. Kentucky Unemployment Ins. Commission v. 
Anaconda Aluminum Co., Ky., 433 S.W.2d 119, 121. Of 
binding force; legally sufficient or efficacious; autho
rized by law. Good or sufficient in point of law; effica
cious; executed with the proper formalities; incapable 
of being rightfully overthrown or set aside; sustainable 
and effective in law, as distinguished from that which 
exists or took place in fact or appearance, but has not 
the requisites to enable it to be recognized and enforced 
by law. A deed, will, or other instrument, which has 
received all the formalities required by law, is said to be 
valid. 
Meritorious, as, a valid defense. 
See also Legal. 
Validate. To make valid; confirm; sanction; affirm. 
Validating statute. A statute, purpose of which is to 
cure past errors and omissions and thus make valid 
what was invalid, but it grants no indulgence for the 
correction of future errors. Petition of Miller, 149 Pa. 
Super. 142, 28 A.2d 257, 258. 
Validation. Process of gathering evidence to show job
relatedness of employment test or selection device. 
Brunet v. City of Columbus, S.D.Ohio, 642 F.Supp. 1214, 
1242. 
Valid contract. A contract in which all of the elements 
of a contract are present and, therefore, enforceable at 
law by the parties. A properly constituted contract 
having legal force. Compare Unen forceable contract. 
Validity. Legal sufficiency, in contradistinction to mere 
regularity. 
1550 
Validity of a treaty. The term "validity," as applied to 
treaties, admits of two descriptions-necessary and vol
untary. By the former is meant that which results from 
the treaties having been made by persons authorized by, 
and for purposes consistent with, the constitution. By 
voluntary validity is meant that validity which a treaty, 
voidable by reason of violation by the other party, still 
continues to retain by the silent acquiescence and will of 
the nation. It is voluntary, because it is at the will of 
the nation to let it remain or to extinguish it. The 
principles which govern and decide the necessary validi
ty of a treaty are of a judicial nature, while those on 
which its voluntary validity depends are of a political 
nature. 
Valid reason. These words, in a statute providing for 
the withdrawal of the names of petitioners for a road 
improvement district when valid reasons therefor are 
presented, mean a sound sufficient reason, such as 
fraud, deceit, misrepresentation, duress, etc.; a reason 
upon which the petitioner could support or justify his 
change in attitude. The word "valid" necessarily pos
sesses an element of legal strength and force, and incon
sistent positions have no such force. 
Valley. As applied to a mountainous country, term 
refers to lowlands, in contradistinction to mountain 
slopes and ridges. 
Valor beneficiorum Ivrebr benafishiyoram/. L. Lat. 
The value of every ecclesiastical benefice and prefer
ment, according to which the first fruits and tenths are 
collected and paid. It is commonly called the "king's 
books," by which the clergy are at present rated. 
Valor maritagii Ivrelar mrerateyjiyay I. Lat. Value of 
the marriage. The amount forfeited under the ancient 
tenures by a ward to a guardian who had offered her a 
marriage without disparagement, which she refused. In 
feudal law, the guardian in chivalry had the right of 
tendering to his infant ward a suitable match, without 
"disparagement" (inequality), which, if the infants re
fused, they forfeited the value of the marriage (valor 
maritagii) to their guardian; that is, so much as a jury 
would assess, or any one would bona fide give, to the 
guardian for such an alliance. 2 Bl.Comm. 70. 
A writ which lay against the ward, on coming of full 
age, for that he was not married, by his guardif!n, for 
the value of the marriage, and this though no convenient 
marriage had been offered. 
Valuable. Of financial or market value; commanding 
or worth a good price; of considerable worth in any 
respect, whether monetary or intrinsic. 
Valuable consideration. A class of consideration upon 
which a promise may be founded, which entitles the 
promisee to enforce his claim against an unwilling 
promisor. For contract, may consist either in some 
right, interest, profit, or benefit accruing to one party, or 
some forbearance, detriment, loss, or responsibility giv
en, suffered, or undertaken by the other. Atherton v. 
Atherton, Mo.App., 480 S.W.2d 513, 518. A gain or loss 
to either party is not essential, it is sufficient if the 
party in whose favor the contract is made parts with a

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155 1 
right which he might otherwise exert. Miller Ice Co. v. 
Crim, 299 Ill.App. 615, 20 N.E.2d 347. It need not be 
translatable into dollars and cents, but is sufficient if it 
consists of performance, or promise thereof, which prom
isor treats and considers of value to him. It is not 
essential that the person to whom the consideration 
moves should be benefited, provided the person from 
whom it moves is, in a legal sense, injured. The injury 
may consist of a compromise of a disputed claim or 
forbearance to exercise a legal right, the alteration in 
position being regarded as a detriment that forms a 
consideration independent of the actual value of the 
right forborne. Mutual promises in contract is suffi
cient. For Fair and valuable consideration, see that title. 
See also Consideration. 
Valuable improvements. As used in a statute relating 
to the specific performance of a parol contract for the 
purchase of real estate, improvements of such character 
as add permanent value to the freehold, and such as 
would not likely be made by one not claiming the right 
to the possession and enjoyment of the freehold estate. 
Improvements of a temporary and unsubstantial charac
ter will not amount to such part performance as, when 
accompanied by possession alone, will take the contract 
out of the operation of the statute of frauds. The 
valuable improvements may, however, be slight and of 
small value, provided they are substantial and perma
nent in their nature, beneficial to the freehold, and such 
as none but an owner would ordinarily make. 
Valuable papers. This term as used in statute requir
ing that a holographic will devising realty be found 
among the "valuable papers" of decedent, in order to be 
effective, refers to such papers as are regarded by the 
testator as worthy of preservation and therefore in his 
estimation of some value. Fransioli v. Podesta, 21 Tenn. 
App. 577, 113 S.W.2d 769, 773, 777. And does not refer 
only to papers having money value. Pulley v. Cart
wright, 23 Tenn.App. 690, 137 S.W.2d 336, 340. 
Valuation. The act of ascertaining the worth of a thing. 
The estimated worth or price of a thing. See also 
Appraisal; Assessed valuation; Fair value; Special use 
valuation; Value. 
Valuation list. In English law, a list of all the ratable 
hereditaments in a parish, showing the names of the 
occupier, the owner, the property, the extent of the 
property, the gross estimated rental, and the ratable 
value; prepared by the overseers of each parish in a 
union under section 14 of the union assessment commit
tee act, 1862 (St. 25 & 26 Vict., c. 103), for the purposes 
of the poor rate. 
Value. The utility of an object in satisfying, directly or 
indirectly, the needs or desires of human beings, called 
by economists "value in use," or its worth consisting in 
the power of purchasing other objects, called "value in 
exchange." Joint Highway Dist. No. 9 v. Ocean Shore 
R. Co., 128 Cal.App. 743, 18 P.2d 413, 417. Also the 
estimated or appraised worth of any object or property, 
calculated in money. To estimate the worth of; to rate 
at a certain price; to appraise; or to place a certain 
VALUE 
estimate of worth on in a scale of values. Hoard v. 
Wiley, 113 Ga.App. 328, 147 S.E.2d 782, 784. 
Any consideration sufficient to support a simple con
tract. The term is often used as an abbreviation for 
"valuable consideration," especially in the phrases "pur
chaser for value," "holder for value," etc. See Consider
ation; Valuable consideration. 
In economic consideration, the word "value," when 
used in reference to property, has a variety of significa
tions, according to the connection in which the word is 
employed. It may mean the cost of a production or 
reproduction of the property in question, when it is 
sometimes called "sound value;" or it may mean the 
purchasing power of the property, or the amount of 
money which the property will command in exchange, if 
sold, this being called its "market value," which in the 
case of any particular property may be more or less than 
either the cost of its production or its value measured by 
its utility to the present or some other owner; or the 
word may mean the subjective value of property, having 
in view its profitableness for some particular purpose, 
sometimes termed its "value for use." 
Salable value, actual value, market value, fair value, 
reasonable value, and cash value may all mean the same 
thing and may be designed to effect the same purpose. 
Cummings v. National Bank, 101 U.S. 153,25 L.Ed. 903. 
"Value," as used in Art. I, § 8, U.S.Const., giving 
Congress power to coin money and regulate the value 
thereof, is the true, inherent, and essential value, not 
depending upon accident, place, or person, but the same 
everywhere and to every one, and in this sense regulat
ing the value of the coinage is merely determining and 
maintaining coinage composed of certain coins within 
certain limitations at a certain specific composition and 
weight. 
For taxation purposes, "value" is the worth estab
lished by bargaining process of willing buyer and willing 
seller. In re Montpelier & Barre R.R. Corp., 135 Vt. 
102, 369 A.2d 1379, 1381. See Fair market value. 
Value as it relates to stolen property is the market 
value at the time and place of the taking, or, in case of 
property without a market value, the cost of replacing 
it. Givens v. State, 143 Tex.Cr.R. 277, 158 S.W.2d 535, 
536. The National Stolen Property Act defines value as 
"face, par or market value, whichever is the greatest 
18 U.S.C.A. § 2311. U.S. v. Wentz, C.A.W.Va., 
800 F.2d 1325, 1326. 
Value as used in eminent domain proceeding means 
market value (q.v.). Epstein v. Boston Housing Authori
ty, 317 Mass. 297, 58 N.E.2d 135, 137. See also Just 
compensation; Market value. 
Most generally, a legal basis for enforcing a transfer 
of property or an undertaking, including a promise or 
other commitment, which is different from common-law 
consideration. For purposes of the U.C.C. generally, see 
U.C.C. § 1-201(44); for purposes of due-course status, 
see U.C.C. §§ 3-303; 4-208 & 4-209. 
Under U.C.C. § 1-201(44), a person gives "value" for 
rights if he acquires them: (a) in return for a binding

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VALUE 
commitment to extend credit or for the extension of 
immediately available credit whether or not drawn upon 
and whether or not a chargeback is provided for in the 
event of difficulties in collection; or (b) as security for or 
in total or partial satisfaction of a pre-existing claim; or 
(c) by accepting delivery pursuant to a pre-existing con
tract for purchase; or (d) generally, in return for any 
consideration sufficient to support a simple contract. 
See also Actual value; Agreed value; Annual value; 
Appraisal; Assess; Cash value; Commuted value; Con
sideration; Diminution in value; Double value; Face value; 
Fair cash market value; Fair cash value; Fair market 
value; Fair value; Going concern value; Improved value; 
Insurable value; Intrinsic value; Just compensation; 
Leasehold value; Market value; Net asset value; Par 
value; Policy value; Present value. 
Actual cash value. In insurance, its customary meaning 
is replacement cost new less normal depreciation, 
though it may be determined by current market value of 
similar property or by the cost to replace or repair the 
property. 
Book value. The value at which assets of a business are 
carried on the books of the company. The book value of 
fixed assets is arrived at by subtracting accumulated 
depreciation from the cost of the fixed assets. It may 
also refer to the net worth of a business arrived at by 
subtracting liabilities from assets. See also Book. 
Cash surrender valu�. In life insurance, the amount 
which the insurer will pay before death when the policy 
is cancelled. See also Cash value. 
Intrinsic value. The value which a thing has as of itself, 
and not the value reflecting extrinsic factors such as 
market conditions. 
Liquidation value. The value of a business or of an 
asset when it is sold other than in the ordinary co�rse of 
business as in the liquidation of a business. 
Market value. Fair value of property as between one 
who wants to purchase it and another who desires to sell 
it. What willing purchaser will give for property under 
fair market conditions. People v. F. H. Smith Co., 230 
App.Div. 268, 243 N.Y.S. 446, 451. Not what the owner 
could realize at a forced sale, but the price he could 
obtain after reasonable and ample time, such as would 
ordinarily be taken by an owner to make a sale of like 
property. Wade v. Rathbun, 23 Cal.App.2d Supp. 758, 
67 P.2d 765, 766. See Fair cash market value; Fair market 
value; Fair value; Just compensation. 
Net value. The "reserve" or "net value" of a life insur
ance policy is the fund accumulated out of the net 
premiums during the earlier years of the policy where 
the premium throughout life or a term of years exceeds 
the actual value of the risk. The "net value" of a policy 
is equivalent to "reserve," and means that part of the 
annual premium paid by insured which, according to the 
American Experience Table of Mortality, must be set 
apart to meet or mature the company's obligations to 
insured, the net value of a policy on a given date being 
its actual value, its reserve. 
1552 
No par value. Stock of a corporation which has no par 
value but which represents a proportionate share of the 
ownership of the corporation. 
Optimal use value. Synonym for Most suitable use value 
(q.v.). 
Par value. The nominal value of stock arrived at by 
dividing the total stated capital stock by the number of 
shares authorized. 
Residual value. Amount expected to be obtained when 
a fixed asset is disposed of at the end of its useful life 
(also called scrap or salvage value). 
Scrap value. The value of the constituent materials and 
components of a thing; not its value for the purpose for 
which it was made. 
Stated value. The dollar value of no par stock estab
lished by the corporation as constituting the capital of 
the corporation. 
Surrender value. See Cash surrender value, above. 
True value. As referring to value at which property 
must be assessed, is price which would be paid therefor 
on assessing date to willing seller, not compelled to sell, 
by willing purchaser, not compelled to purchase. New 
York Bay R. Co. v. Kelly, 22 N.J.Misc. 204, 37 A.2d 624, 
628. 
Use value. The value established by the usefulness of 
an object and not its value for sale or exchange. 
Value of matter in controversy. See Amount in controver
sy; Jurisdictional amount. 
Value received. A phrase usually employed in a bill of 
exchange or promissory note, to denote that a lawful 
consideration has been given for it. Clayton v. Clayton, 
125 N.J .L. 537, 17 A.2d 496, 497. It is prima facie 
evidence of consideration, Moses v. Bank, 149 U.S. 298, 
13 S.Ct. 900, 37 L.Ed. 743; although not necessarily in 
money. 
Value added tax. See Tax. 
Valued policy. Insurance policy in which a definite 
valuation is by agreement of both parties put on the 
subject-matter of the insurance and written in the face 
of the policy and such value, in the absence of fraud or 
mistake, is conclusive on the parties. One in which both 
property insured and loss are valued. It is distinguished 
from an "open policy", which is one where the value of 
the property insured is not settled in the policy. Perez 
v. Los Fresnos State Bank, Tex.Civ.App.1974, 512 S.W.2d 
796, 800. 
Valueless. Worthless. 
Valuer /vrelyuw::lr/. A person whose business is to ap
praise or set a value upon property; an appraiser. 
Valvasors, or vidames /vrev::lsorz/viydremz/. An obso
lete title of dignity next to a peer. 
Vana est ilia potentia qure nunquam venit in actum 
/veyn::l est il::l p::ltensh(iY)::I kwiy n;!Jkw::lm viyn::lt ::In 
rekt::lm/. That power is vain [idle or useless] which 
never comes into action [which is never exercised].

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1553 
Vandalic Ivrendrel;}k/. Willfully or ignorantly destruc
tive. Unkelsbee v. Homestead Fire Ins. Co. of Balti
more, D.C.Mun.App., 41 A.2d 168, 170. 
Vandalism. Such willful or malicious acts as are intend
ed to damage or destroy property. Vort v. Westbrook, 
221 Ga. 39, 142 S.E.2d 813, 814, 815. Willful or ignorant 
destruction of property of another, commonly referring 
to artistic or literary treasures. Hostility to or con
tempt for what is beautiful or venerable. Unkelsbee v. 
Homestead Fire Ins. Co. of Baltimore, D.C.Mun.App., 41 
A.2d 168, 170, 172. Vandalism connotes act of vandal 
and in ordinary usage is not limited to destruction of 
works of art, but has broadened its meaning to include 
destruction of property generally. Eis v. Hawkeye-Se
curity Ins. Co., 192 Kan. 103, 386 P.2d 206, 210. Within 
dwelling policy means the willful and malicious destruc
tion of property generally, and the destruction must 
have been intentional or in such reckless and wanton 
disregard of rights of others as to be equivalent of 
intent, and malice may be inferred from act of destruc
tion. Livaditis v. American Cas. Co. of Reading, Pa., 117 
Ga.App. 297, 160 S.E.2d 449, 450. See also Deface; 
Desecrate. 
Vani timores sunt estimandi, qui non cadunt in con
stantem virum Iveynay t;}moriyz s;}nt est;}mrenday, 
kway non keyd;}nt in k:mstrent;}m vir;}m/. Those are to 
be regarded as idle fears which do not affect a steady 
[firm or resolute] man. 
Vani timoris justa excusatio non est Iveynay t;}mor;}s 
j;}st;} ekskyuwzeysh(iy)ow non est/. A frivolous fear is 
not a legal excuse. 
Vantarius Ivrenter(i)y;}s/. L. Lat. In old records, a 
forefootman. 
Vara Ivar;}/. A Spanish-American measure of length, 
equal to 33 English inches or a trifle more or less, 
varying according to local usage. See U. S. v. Perot, 98 
U.S. 428, 25 L.Ed. 251. A measure used in Mexican 
land grants equal to 32.9927 inches. Ainsa v. U. S., 161 
U.S. 208, 16 S.Ct. 544, 40 L.Ed. 673. 
Variable annuity. An annuity whose periodic pay
ments depend upon some uncertain outcome, such as 
stock market prices. An annuity contract in which the 
premiums or payments are invested in securities to keep 
pace with inflation. The payments, therefore, which the 
annuitant receives vary from time to time. See also 
Annuity. 
Variable interest rate. Interest rate that is set accord
ing to fluctuation in the prime rate; it is a floating rate. 
Variable-rate mortgage. See Mortgage. 
Variance. Civil and criminal practice. A discrepancy 
or disagreement between two instruments or two plead
ing allegations in the same cause, which should by law 
be entirely consonant. Thus, if the evidence adduced by 
the plaintiff does not agree with the allegations of his 
pleadings, it is a variance. A disagreement between the 
allegations and the proof in some matter which, in point 
of law, is essential to the charge or claim. The test of 
materiality of "variance" in an information is whether 
VAS 
the pleading so fully and correctly informs a defendant 
of offense with which he is charged that, taking into 
account proof which is introduced against him, he is not 
misled in making his defense. People v. Guerrero, 22 
CaL2d 183, 137 P.2d 21, 24. 
To constitute a fatal variance, there must be a real 
and tangible difference between the allegations in the 
pleading and the proof offered in its support. The 
difference must be substantial and materiaL It must be 
one that actually misleads the adverse party to his 
prejudice in maintaining his action or defense on the 
merits; or, in criminal cases, one which might mislead 
the defense or expose a defendant to being put twice in 
jeopardy for the same offense, as, e.g., when evidence 
offered at trial proves facts materially different from 
those alleged in the indictment. Gaither v. U.S., 413 
F.2d 1061, 1071, 134 U.S.App.D.C. 154. 
Stipulations to vary discovery procedures are gov
erned by Fed.R. Civil P. 29. 
The assertion of "variance" or discrepancy between 
the pleadings and proof has essentially been eliminated 
in civil cases by Fed.R.Civil P. 15(b) which permits 
liberal amendment of the pleadings to conform to the 
evidence. This same rule is followed by most state 
courts. In criminal cases, variances that do not affect 
the substantial rights of the accused will be disregarded. 
See Fed.R.Crim.P. 7(c), (e), 52(a). 
See also Area variance; Departure; Fatal variance; Er
ror (Harmless error); Irregularity. 
Accounting. In accounting, a variance is the difference 
between the actual and standard cost of such things as 
direct materials, direct labor, and overhead. An unfa
vorable variance generally means that the actual costs 
incurred exceeded the budgeted amounts. 
Zoning. Permission to depart from the literal require
ments of a zoning ordinance by virtue of unique hard
ship due to special circumstances regarding person's 
property. It is in the nature of a waiver of the strict 
letter of the zoning law upon substantial compliance 
with it and without sacrificing its spirit and purpose. 
Rosedale-Skinker Imp. Ass'n v. Board of Adjustment of 
City of St. Louis, Mo., 425 S.W.2d 929, 937. An authori
zation to a property owner to depart from literal re
quirements of zoning regulations in utilization of his 
property in cases in which strict enforcement of the 
zoning regulations would cause undue hardship. Daniel 
v. District of Columbia Bd. of Zoning Adjustment, D.C. 
App., 329 A.2d 773, 775. A "use variance" is a variance 
permitting a use other than that permitted in particular 
district by zoning ordinance. Anderson v. Board of 
Appeals, Town of Chesapeake Beach, 22 Md.App. 28, 322 
A.2d 220, 225. Compare Area variance; Special excep
tion; Special use permit; Unn ecessary hardship. 
Various. Separate. Simmons v. Ramsbottom, 51 Wyo. 
419, 68 P.2d 153, 156. Unlike; different; more than 
one; numerous; several; of diverse kinds. 
Vas Ivres/. Lat. In the civil law, a pledge; a surety; 
bail or surety in a criminal proceeding or civil action.

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VASECTOMY 
Vasectomy. Resection of the ductus deferens. Surgical 
excision of part of the vas deferens, resulting in steriliza
tion of the male. 
Vassal /vres::lll. A feudal tenant or grantee; a feudatory; 
the holder of a fief on a feudal tenure, and by the 
obligation of performing feudal services. The correla
tive term was "lord." The vassal himself might have 
been lord of some other vassal. 
In later times, this word was used to signify a species 
of slave who owed servitude and was in a state of 
dependency on a superior lord. 2 Bl.Comm. 53. 
Vassalage /vres;}l;}j/. The state or condition of a vassal. 
Vassal states. In international law, states which were 
supposed to possess only those rights and privileges 
which had been expressly granted to them, but actually 
they seem to have been very independent. Egypt was 
such; also Crete. 
Vasseleria /vres;}lir(i)y;}/. The tenure or holding of a 
vassal. 
Vastum /veyst;}m/. L. Lat. A waste or common lying 
open to the cattle of all tenants who have right of 
commoning. 
Vastum forestre vel bosci /veyst;}m f::lrestiy vel b6say/. 
Waste of a forest or wood. That part of a forest or wood 
wherein the trees and underwood were so destroyed that 
it lay in a manner waste and barren. 
VAT. Value added tax. See Tax. 
Vauderie /v6wd(;})riy/. In old European law, sorcery; 
witchcraft; the profession of the Vaudois. 
Vavasory /vrev::ls(o)riy/. The lands that a vavasour held. 
Vavasour /vrev::lsor/. One who was in dignity next to a 
baron. One who held of a baron. 
V.C. An abbreviation for "vice-chancellor." 
V.C.C. An abbreviation for "vice-chancellor's court." 
V.E. An abbreviation for "venditioni exponas" (q.v.). 
Veal-money. The tenants of the manor of Bradford, in 
the county of Wilts, paid a yearly rent by this name to 
their lord, in lieu of veal paid formerly in kind. 
Vecorin. In old Lombardic law, the offense of stopping 
one on the way; forestalling. 
Vectigalia /vekt;}geyl(i)Y::l/. In Roman law, customs
duties; taxes paid upon the importation or exportation 
of certain kinds of merchandise. They differed from 
tribute, which was a tax paid by each individual. Rent 
from state lands. 
Vectigal judiciarium /vektayg;}l juwdishiyer(i)y;}m/. 
Lat. Fines paid to the crown to defray the expenses of 
maintaining courts of justice. 
Vectigal, origine ipsa, jus cresarum et regum patri
moniale est /vektayg::ll, ::Irij;}niy ips;}, j;}S siyz;}r;}m et 
riyg::lm pretr;}mowniyeyliy est!. Tribute, in its origin, is 
the patrimonial right of emperors and kings. 
Vectura /vekt(y)ur;}/. In maritime law, freight. 
1554 
Vehicle. That in or on which persons, goods, etc. may be 
carried from one place to another, especially along the 
ground. Any moving support or container fitted or used 
for the conveyance of bulky objects; a means of convey
ance. That which is used as an instrument of convey
ance, transmission or communication. Term refers to 
every device in, upon or by which a person or property is 
or may be transported upon a highway. Term has been 
held to include a "moped" (People v. Jordan, 75 Cal. 
App.3d Supp. 1, 142 Cal.Rptr. 401, 405). While a bicycle 
has been held by some courts to be a vehicle under 
traffic laws (Richards v. Goff, 26 Md.App. 344, 338 A.2d 
80, 84), others have held that it is not (Fowles v. Dakin, 
160 Me. 392, 205 A.2d 169, 173). 
Vehicular crimes. Criminal acts committed while oper
ating a motor vehicle, e.g. vehicular manslaughter (N.Y. 
Penal Law 125.13), vehicular assault (N.Y.Penal Law 
120.04). See also Vehicular homicide. 
Vehicular homicide. Homicide caused by the unlawful 
and negligent operation of a motor vehicle. Both inten
tional conduct and negligence may be the basis for such 
charge though statutes vary from state to state as to the 
elements of the crime. See e.g. Model Penal Code 
§ 210.4 (negligent homicide); N.Y. Penal Law 125.13 
(vehicular manslaughter). See also Homicide. 
Veies /viy(iy)z/. L. Fr. Distresses forbidden to be re
plevied; the refusing to let the owner have his cattle 
which were distrained. 
Vein. A continuous body of mineral or mineralized rock, 
filling a seam or fissure in the earth's crust, within 
defined boundaries in the general mass of the mountain 
(which boundaries clearly separate it from the neighbor
ing rock), and having a general character of continuity 
in the direction of its length. McMullin v. Magnuson, 
102 Colo. 230, 78 P.2d 964, 968. It includes all deposits 
of mineral matter found through a mineralized zone or 
belt coming from the same source, impressed with the 
same forms, and appearing to have been created by the 
same processes. Inyo Marble Co. v. Loundagin, 120 
Cal.App. 298, 7 P.2d 1067, 1072. 
The terms "principal," "original," and "primary," as 
well as "secondary," "accidental," and "incidental," 
have all been employed to describe the different veins 
found within the same surface boundaries, but their 
meaning is not entirely clear in all cases. They may 
refer to the relative importance or value of the different 
veins, or the relations to each other, or to the time of 
discovery, but the words "secondary," "accidental," and 
"incidental" are most frequently used to distinguish 
between the discovery vein and other veins within the 
same surface boundaries. 
Discovery vein. That vein which served as a basis of the 
location, in contradistinction to secondary, accidental, 
and incidental veins. The primary vein for the purpose 
of locating a mining claim and determining which are 
the end and which the side lines. Where the discovery 
vein crosses the opposite side lines of the claim as 
located, the side lines become end lines, not only with 
respect to such vein, but for determination of extralater-

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1555 
al rights in any other vein which apexes within the 
claim. 
Vejours. Viewers; persons sent by the court to take a 
view of any place in question, for the better decision of 
the right. It signifies, also, such as are sent to view 
those that essoin themselves de malo lecti, (i.e., excuse 
themselves on ground of illness) whether they be in 
truth so sick as that they cannot appear, or whether 
they do counterfeit. 
Velabrum /vahi:bram/. In old English law, a tollbooth. 
Velitis jubeatis quirites? /velatas juwbiyeytas kwarliy
tiyz/ . Lat. Is it your will and pleasure, Romans? The 
form of proposing a law to the Roman people. 
VelIe non creditur qui obsequitur imperio patris vel 
domini /veliy non kredatar kwliy absekwatar 
impir(i)yow pretras vel domanay/. He is not presumed 
to consent who obeys the orders of his father or his 
master. 
Vel non /vel non/. Or not. These words appear in the 
phrase "devisavit vel non" (q.v.), meaning, literally, "did 
he devise or not." Examples of their use by the courts 
may be seen in the following quotations: "So the suffi
ciency vel non of the order of publication is important"; 
"the negligence vel non of the owner was 
* * 
for 
the jury"; and "We come at last to the merits vel non of 
this appeal". 
Veltraria /veltrer(i)ya/ . The office of dog-leader, or 
courser. 
Venal /viynall. Pertaining to something that is bought; 
capable of being bought; offered for sale; mercenary. 
V sed usually in an evil sense, such purchase or sale 
being regarded as corrupt and illegal. 
Venaria /vaner(i)ya/. Beasts caught in the woods by 
hunting. 
Venatio /vaneysh(iy)ow/. Hunting. 
Vend. To transfer to another for a pecuniary equivalent; 
to make an object of trade, especially by hawking or 
peddling; to sell. Goins v. State, 194 Ark. 598, 108 
S.W.2d 1082, 1083. The term is not commonly applied 
to the sale of real estate, although its derivatives "ven
dor" and "vendee" are. 
Vendee. A purchaser or buyer; one to whom anything 
is sold. Generally used of the purchaser of real proper
ty, one who acquires goods by sale being generally called 
a "buyer." Compare Vendor. 
Vendens eandem rem duobus falsarius est /vendenz 
iyrendam rem dyuwowbas folser(i)yas est/. He is fraudu
lent who sells the same thing twice. 
Vendetta. A private blood feud, in which a family seeks 
to avenge one of its members on the offender or his 
family. Stephens v. Howells Sales Co., D.C.N.Y., 16 F.2d 
805, 808. 
Vendible /vend;:)ball. Fit or suitable to be sold; capable 
of transfer by sale; merchantable. 
VENDOR'S LIEN 
Venditre /vendatiy/. In old European law, a tax upon 
things sold in markets and public fairs. 
Venditio /vendish(iy)ow/. Lat. In the civil law, in a 
strict sense, sale; the act of selling; the contract of sale, 
otherwise called "emptio venditio. " 
In a broader sense, any mode or species of alienation; 
any contract by which the property or ownership of a 
thing may be transferred. 
Vendition /vendishan/. Sale; the act of selling. 
Venditioni exponas /vandishiyownay ekspownas/. Lat. 
You expose to sale. The name of a writ of execution, 
requiring a sale to be made, directed to a sheriff when 
he has levied upon goods under a fieri facias, but re
turned that they remained unsold for want of buyers; 
and in some jurisdictions it is issued to cause a sale to be 
made of lands, seized under a former writ, after they 
have been condemned. or passed upon by an inquisition. 
Frequently abbreviated to "vend. ex." Beeve v. V. S., 
161 V.S. 104, 16 S.Ct. 532, 40 L.Ed. 633; State ex reI. 
First Nat. Bank v. Ogden, 173 Okl. 285, 49 P.2d 565, 567. 
The writ gives no new authority to the sheriff but only 
directs him to perform his duty under the execution. 
Fannin's Ex'r v. Haney, 283 Ky. 68, 140 S.W.2d 630, 632. 
Venditor /vendatar/. Lat. A seller; a vendor. 
Venditor regis /vendatar riyjas/. In old English law, 
the king's seller or salesman; the person who exposed to 
sale those goods and chattels which were seized or 
distrained to answer any debt due to the king. 
Venditrix /vendatraks/. Lat. A female vendor. 
Vendor. The person who transfers property or goods by 
sale. A seller of goods or services. Cashway Bldg. 
Materials, Inc. v. McCurdy, Tex.Civ.App., 553 S.W.2d 
787, 789-90. A merchant, retail dealer, supplier, im
porter, wholesale distributor; one who buys to sell; a 
seller. Compare Vendee. 
Vendor's lien. A creature of equity, being a lien impli
edly belonging to a vendor for the unpaid purchase price 
of land, where he has not taken any other lien or 
security beyond the personal obligation of the purchas
er. An equitable security which arises from the fact 
that a vendee has received from his vendor property for 
which he has not paid the full consideration, and such 
lien exists independently of any express agreement. 
Causer v. Wilmoth, Mo.App., 142 S.W.2d 777, 779. Also, 
a lien existing in the unpaid vendor of chattels, the 
same remaining in his hands, to the extent of the 
purchase price, where the sale was for cash, or on a 
term of credit which has expired, or on an agreement by 
which the seller is to retain possession. 
In English and American law a vendor's lien is excep
tional in character, and is an importation from the civil 
law, which found its recognition through courts of chan
cery, on the equitable principle that the person who had 
secured the estate of another ought not in conscience to 
be allowed to keep it and not pay full consideration 
money, and that to enforce that payment it was just that 
the vendor should have a lien upon the property.

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VENDUE 
Vendue Ivendyuw/v€md(y)uw/. A sale; generally a sale 
at public auction; and more particularly a sale so made 
under authority of law, as by a constable, sheriff, tax 
collector, administrator, etc. 
Vendue master Ivend(y)uw mrest;}r/. An auctioneer. 
Venereal Iv;}niriy;}l/. Sexual; as, venereal diseases. 
Venereal disease Iv;}niriy;}l d;}ziyz/. One of several 
diseases identified with sexual intercourse. Collective 
term for gonorrhea, chancroid, and syphilis. 
Venia Iviyn(i)y;}/. A kneeling or low prostration on the 
ground by penitents; pardon. 
Venia retatis Iviyn(i)y;} ;}teyt;}s/. A privilege granted by 
a prince or sovereign, in virtue of which a person is 
entitled to act, sui juris, as if he were of full age. 
Venire facilitas incentivum est delinquendi Iviyniyiy 
f;}sil;}tres insentayv;}m est delilJkwenday I. Facility of 
pardon is an incentive to crime. 
Venire Iv;}nayriy/. Lat. To come; to appear in court. 
The group of citizens from whom a jury is chosen in a 
given case. Sometimes used as the name of the writ for 
summoning a jury, more commonly called a "venire 
facias." See also Jury panel. A special venire is some
times prepared for a protracted case. 
Venire de novo Iv;}nayriy diy nowvow/. See Venire 
facias de novo. 
Venire facias Iv;}nayriy feysh(iy);}s/. Lat. A judicial 
writ, directed to the sheriff of the county in which a 
cause is to be tried, commanding him that he "cause to 
come" before the court, on a certain day therein men
tioned, twelve good and lawful men of the body of his 
county, qualified according to law, by whom the truth of 
the matter may be the better known, and who are in no 
wise of kin either to the plaintiff or to the defendant, to 
make a jury of the county between the parties in the 
action, because as well the plaintiff as the defendant, 
between whom the matter in variance is, have put 
themselves upon that jury, and that he return the 
names of the jurors, etc. 
Venire facias ad respondendum Iv;}nayriy feysh(iy);}s 
red respondend;}m/. A writ to summon a person, against 
whom an indictment for a misdemeanor has been found, 
to appear and be arraigned for the offense. A warrant 
is now more commonly used. 
Venire facias de novo Iv;}nayriy feysh(iy);}s diy now
vow I. A fresh or new venire, which the court grants 
when there has been some impropriety or irregularity in 
returning the jury, or where the verdict is so imperfect 
or ambiguous that no judgment can be given upon it, or 
where a judgment is reversed on error, and a new trial 
awarded. The ancient common-law mode of proceeding 
to a new trial was by a writ of venire facias de novo. 
The present day relief of "new trial" is intended to 
mitigate the severity of the proceeding to attaint. 
While a venire de novo and new trial are quite different, 
they are alike in that a new trial takes place in both. 
The material difference between them is that a venire 
de novo must be granted upon matters appearing upon 
1556 
the face of the record, but a new trial may be granted 
for things out of the record. The terms "venire facias de 
novo" and "venire de novo" are used interchangeably to 
denote a new trial. See also Trial (New trial). 
Venire facias juratores Iv;}nayriy feysh(iy);}s 
jur;}toriyz/. A common law judicial writ directed to the 
sheriff, when issue was joined in an action, commanding 
him to cause to come to Westminster, on such a day, 
twelve free and lawful men of his county by whom the 
truth of the matter at issue might be better known. 
This writ was abolished by section 104 of the common
law procedure act, 1852, and by section 105 a precept 
issued by the judges of assize is substituted in its place. 
The process so substituted is sometimes loosely spoken 
of as a "venire." 
Venire facias tot matronas Iv;}nayriy feysh(iy);}s tot 
m;}trown;}s/. A writ to summon a jury of matrons to 
execute the writ de ventre inspiciendo. 
Venireman Iv;}nayriym;}n/. A member of a panel of 
jurors; a prospective juror. Before becoming a juror, a 
person must pass voir dire examination. U.S. v. Halde
man, 559 F.2d 31, 59, 181 U.S.App.D.C. 254. See Jury. 
Venit et defendit Iviyn;}t et d;}fend;}t/. L. Lat. In old 
pleading, comes and defends. The proper words of ap
pearance and defense in an action. 
Venit et dicit Iviyn;}t et dis;}t/. Lat. In old pleading, 
comes and says. 
Vente Ivont/. In French law, sale; contract of sale. 
Vente aleatoire Ivont aIeyatwar/. A sale subject to an 
uncertain event. 
Vente a remere Ivont a reymerey I. A conditional sale, 
in which the seller reserves the right to redeem or 
repurchase at the same price. The term is used in 
Canada and Louisiana. 
Vente aux encheres Ivont owz onsher/. An auction. 
Venter Ivent;}r/. Lat. (ventre, Fr.) The belly; the 
womb; the wife. Used in law as designating the mater
nal parentage of children. Thus, where in ordinary 
phraseology we should say that A. was B.'s child by his 
first wife, he would be described in law as "by the first 
venter." A child is said to be en ventre sa mere before it 
is born; while is it a fretus. 
Ventre inspiciendo Iventriy inspishiyendow/. See De 
ventre inspiciendo; Venire facias tot matronas. 
Venture, v. To take (the) chances. 
Venture, n. An undertaking attended with risk, espe
cially one aiming at making money; business specula
tion. See also Joint enterprise; Joint venture. 
Venture capital. Funding for new companies or others 
embarking on new or turnaround ventures that entails 
some investment risk but offers the potential for above 
average future profits. Venture capital is often provid
ed by firms that specialize in financing new ventures 
with capital supplied by investors interested in specula
tive or high risk investments. See also Risk capital; 
Seed money.

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1557 
Venue. Formerly spelled visne. In common law plead
ing and practice, a neighborhood; the neighborhood, 
place, or county in which an injury is declared to have 
been done, or fact declared to have happened. 3 Bl. 
Comm. 294. 
The particular county, or geographical area, in which 
a court with jurisdiction may hear and determine a case. 
Venue deals with locality of suit, that is, with question 
of which court, or courts, of those that possess adequate 
personal and subject matter jurisdiction may hear the 
specific suit in question. Japan Gas Lighter Ass'n v. 
Ronson Corp., D.C.N.J., 257 F.Supp. 219, 224. It relates 
only to place where or territory within which either 
party may require case to be tried. Leege v. Strand, 384 
P.2d 665, 668. It has relation to convenience of litigants 
and may be waived or laid by consent of parties. Iselin 
v. La Coste, C.C.A.La., 147 F.2d 791, 795. 
In the federal courts, the term refers to the district in 
which the suit is brought. Venue may be determined by 
where the action arose or where the parties reside or 
conduct their business. The venue statute for civil 
actions in federal district courts is 28 U.S.C.A. § 1391. 
In federal cases the prosecutor's discretion regarding 
the location of the prosecution is limited by Article III, 
§ 2, U.S.Const., which requires trial in the state where 
the offense "shall have been committed," and the Sixth 
Amendment, which guarantees an impartial jury "of the 
state and district wherein the crime shall have been 
committed." See also Federal criminal cases, below. 
Venue does not refer to jurisdiction at all. Argan
bright v. Good, 46 Cal.App.2d Supp. 877, 116 P.2d 186. 
"Jurisdiction" of the court means the inherent power to 
decide a case, whereas "venue" designates the particular 
county or city in which a court with jurisdiction may 
hear and determine the case. Village of Oakdale v. 
Ferrante, 44 Ohio App.2d 318, 338 N.E.2d 767, 769. As 
such, while a defect in venue may be waived by the 
parties, lack of jurisdiction may not. 
See also Change of venue; Forum conveniens; Forum 
non conveniens. 
Federal criminal cases. Except as otherwise permitted 
by statute or by the rules, the prosecution shall be had 
in a district in which the offense was committed. The 
court shall fix the place of trial within the district with 
due regard to the convenience of the defendant aQ.d the 
witnesses. Fed.R.Crim.P. 18 et seq. 
Venue facts. Facts to be established at hearing on plea 
of privilege. Central Motor Co. v. Roberson, Tex.Civ. 
App., 139 S.W.2d 287, 289. Facts which by statute 
constitute an exception to the general right of a defen
dant to be sued in the county of his residence. Crawford 
v. Sanger, Tex.Civ.App., 160 S.W.2d 115, 116. 
Venue jurisdiction. Power of the particular court to 
function. Brand v. Pennsylvania R. Co., D.C.Pa., 22 
F.Supp. 569, 571. See also Venue. 
Veracity. Truthfulness; accuracy. 
Veray IV:Jrey/. L. Fr. True. An old form of vrai. 
Thus, veray, or true tenant, is one who holds in fee-sim-
VERBA CANCELLARVE 
pIe; veray tenant by the manner, is the same as tenant 
by the manner (q. v.), with this difference only: that the 
fee-simple instead of remaining in the lord, is given by 
him or by the law to another. 
Verba Iv�rb:JI. Lat. (Plural of verbum.) Words. 
Verba accipienda sunt cum effectu, ut sortiantur 
effectum Iv�rb:J :Jksipiyend:J s�nt k�m :Jfekt(y)uw, �t 
sorshiyrent:Jr :Jfekt:Jm/. Words are to be received with 
effect, so that they may produce effect. 
Verba accipienda sunt secundum subjectam mater
iam Iv�rb:J :Jksipiyend:J s�nt s:Jk�nd:Jm s:Jbjekt:Jm m:Jtir
iy:Jm/. Words are to be understood with reference to 
the subject-matter. 
Verba accipienda ut sortiantur effectum Iv�rb:J 
:Jksipiyend:J �t sorshiyrent:Jr :Jfekt:Jm/. Words are to be 
taken so that they may have some effect. 
Verba requivoca, ac in dubio sensu posita, intelligun
tur digniori et potentiori sensu Iv�rb:J :Jkwiv:Jk:J, rek 
in d(y)uwbiyow poz:Jt:J, intel:Jg�nt:Jr dign(i)yoray et 
p:Jtenshiyoray sens(y)uw/. Equivocal words, and such as 
are put in a doubtful sense, are [to be] understood in the 
more worthy and effectual sense [in their best and most 
effective sense]. 
Verba aliquid operari debent; debent intelligi ut 
aliquid operentur Iv�rb:J rel:Jkw:Jd 0p:Jreray deb:Jnt; 
deb:Jnt intebjay �t rel:Jkw:Jd op:Jrent:Jr/. Words ought to 
have some operation; they ought to be interpreted in 
such a way as to have some operation. 
Verba aliquid operari debent, verba cum effectu sunt 
accipienda Iv�rb:J rel:Jkwid 0p:Jreray deb:Jnt, v�rb:J k�m 
:Jfekt(y)uw s�nt :Jksipiyend:JI. Words are to be taken so 
as to have effect. 
Verba artis ex arte Iv�rb:J art:Js eks artiy/. Terms of 
art should be explained from the art. 
Verba cancellarire Iv�rb:J krens:Jleriyiy/. Words of the 
chancery. The technical style of writs framed in the 
office of chancery. 
Verba chartarum· fortius accipiuntur contra profer
entem Iv�rb:J karter:Jm forsh(iY):Js :Jksipiy�nt:Jr kontr:J 
prOf:Jrent:Jm/. The words of charters are to be received 
more strongly against the grantor [or the person offer
ing them]. 
Verba cum effectu accipienda sunt Iv�rb:J k�m 
:Jfekt(y)uw :Jksipiyend:J s�nt/. Words ought to be used so 
as to give them their effect. 
Verba currentis monetre, tempus solutionis designant 
Iv�rb:J k:Jhrent:Js m:Jniytiy, temp:Js s:JI(y)uwshiyown:Js 
dez:Jgnrent/. The words "current money" designate cur
rent at the time of payment. 
Verba debent intelligi cum effectu ut res magis va
leat quam pereat Iv�rb:J deb:Jnt intebjay k�m 
:Jfekt(y)uw, �t riyz meyj:Js vreliY:Jt kwrem pehriY:JtI. 
Words ought to be understood with effect, that a thing 
may rather be preserved than destroyed.

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VERBAL 
Verba debent intelligi ut aliquid operentur Iv;)rb� 
deb�nt intel�jay �t rel�kw�d op�rent�r/. Words ought to 
be understood so as to have some operation. 
Verba dicta de persona intelligi debent de conditione 
personre Iv;)rb� dikt� diy p�rsown� intel�jay deb�nt diy 
k�ndishiyowniy p�rsowniy I. Words spoken of a person 
are to be understood of the condition of the person. 
Verba fortius accipiuntur contra proferentem Iv;)rb� 
forsh(iy)�s �ksipiy;)nt�r kontr� prOf�rent�m/. Words are 
to be taken most strongly against him who uses them. 
Verba generalia generaliter sunt intelligenda Iv;)rb� 
jen�reyl(i)y� jen�reybt�r s�nt intel�jend�/. General 
words are to be generally understood. 
Verba generalia restringuntur ad babilitatem rei vel 
aptitudinem personre Iv;)rb� jen�reyl(i)y� restriIJg;)nt�r 
eM h�bil�teyt�m riyay vel rept�t(y)uwd�n�m p�rsow
niy I. General words must be narrowed either to the 
nature of the subject-matter or to the aptitude of the 
person. 
Verba illata (relata) inesse videntur Iv;)rb� �leyt� 
inesiy v�dent�r rr�leyt� 0 I . Words referred to are to be 
considered as if incorporated. 
Verba in differenti materia per prius, non per poster
ius, intelligenda sunt Iv;)rb� in dif�rentay m�tiriy� p�r 
pray�s, non p�r postiriy�s, intel�jend� s�nt!. Words on a 
different subject are to be understood by what precedes, 
not by what comes after. A maxim of the civil law. 
Verba intelligenda sunt in casu possibili Iv;)rb� 
intel�jend� s�nt in keys(y)uw posib�lay/. Words are to 
be understood in [or "of," or "in reference to"] a possible 
case. A maxim of the civil law. 
Verba intentioni, non e contra, debent inservire 
Iv;)rb� intenshiyownay, non iy kontr�, deb�nt ins�rvay
riy/. 8 Coke, 94. Words ought to be made subservient 
to the intent, not the intent to the words. Bailey v. 
Abington, 201 Ark. 1072, 148 S.W.2d 176, 179. 
Verba ita sunt intelligenda, ut res magis valeat quam 
pereat Iv;)rb� ayt� s�nt intel�jend�, �t riyz meyj�s 
vreliy�t kwrem pehriy�t/. The words [of an instrument] 
are to be so understood, that the subject-matter may 
rather be of force than perish [rather be preserved than 
destroyed; or, in other words, that the instrument may 
have effect, if possible]. 2 Bl.Comm. 380. 
Verbal. Strictly, of or pertaining to words; expressed in 
words, whether spoken or written, but commonly in 
spoken words; hence, by confusion, spoken; oral. Parol; 
by word of mouth; as, verbal agreement, verbal evi
dence; or written, but not signed, or not executed with 
the formalities required for a deed or prescribed by 
statute in particular cases. 
Verbal act doctrine. Under this doctrine, utterances 
accompanying some act or conduct to which it is desired 
to give legal effect are admissible where conduct to be 
characterized by words is material to issue and equivo
cal in its nature, and words accompany conduct and aid 
in giving it legal significance. Keefe v. State, 50 Ariz. 
293, 295, 72 P.2d 425, 427. Under doctrine, where 
1558 
declarations of an individual are so connected with his 
acts as to derive a degree of credit from such connection, 
independently of the declaration, the declaration be
comes part of the transaction and is admissible. The 
"verbal act doctrine" and the "res gestre doctrine" co
incide practically and serve equally to admit certain 
sorts of statements, but they are nevertheless wholly 
distinct in their nature and in their right to exist. 
American Employers Ins. Co. v. Wentworth, 90 N.H. 
112, 5 A.2d 265, 269. See also Excited utterance; Res 
(Res gestae); Verbal acts. 
Verbal acts. Situations in which legal consequences 
flow from the fact that words were said, e.g. the words of 
offer and acceptance which create a contract, or words 
of slander upon which an action for damages is based. 
The rule against hearsay does not apply to proof of 
relevant verbal acts because evidence of such acts is 
being offered to prove something other than the truth of 
an out of court assertion. See Excited utterance; Res 
(Res gestae); Verbal act doctrine. 
Verbal assaults. See Threat. 
Verbal contract. An oral, nonwritten agreement; a 
parol contract. See also Contract (Parol contract) ; Oral 
contract. 
Verbal note. A memorandum or note, in diplomacy, not 
signed, sent when an affair has continued a long time 
without any reply, in order to avoid the appearance of 
an urgency which perhaps is not required; and, on the 
other hand, to guard against the supposition that it is 
forgotten, or that there is an intention of not prosecut
ing it any further. 
Verbal process. In Louisiana, proces verbal (q.v.). 
Verba mere requivoca, si per communem uswp. 10-
quendi in intellectu certo summuntur, talis intellec
tus prreferendus est Iv;)rb� miriy �kwiv�keyt�, say p�r 
k�myuwn�m yuws�m lowkwenday in int�lekt(y)uw 
s;)rtow s�m;)nt�r, teyl�s int�lekt�s prer�rend�s est!. [In 
the case of] words merely equivocal, if they are taken by 
the common usage of speech in a certain sense, such 
sense is to be preferred. A maxim of the civil law. 
Verba nibil operari Melius est quam absurde Iv;)rb� 
nay(h)�l op�reray miyl(i)y�s est kwrem �bs;)rdiy/. It is 
better that words should have no operation at all than 
[that they should operate] absurdly. A maxim of the 
civil law. 
Verba non tam intuenda, quam causa et natura rei, 
ut mens contrabentium ex eis potius quam ex ver
bis appareat Iv;)rb� non trem int(y)uwend�, kwrem koz� 
et n�t(y)ur� riyay, �t menz kontr�h€msh(iy)�m eks iy�s 
powsh(iy)�s kwrem eks v;)rb�s �preriy�t!. The words [of a 
contract] are not so much to be looked at as the cause 
and nature of the thing [which is the subject of it], in 
order that the intention of the contracting parties may 
appear rather from them than from the words. 
Verba offendi possunt, imo ab eis recedere licet, ut 
verba ad sanum intellectum reducantur Iv;)rb� �fen
day pos�nt, aymow reb iy�s r�siyd�riy lis�t, �t v;}r� red 
seyn�m int�lekt�m riyd(y)uwkrent�r/. Words may be

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1559 
opposed [taken in a contrary sense], nay, we may dis
regard them altogether, in order that the [general] 
words [of an instrument] may be restored to a sound 
meaning. A maxim of the civilians. 
Verba ordinationis quando verificari possunt in sua 
vera significatione, trahi ad extraneum intellectum 
non debent /v;)rb::l ord::lneyshiyown::ls kwondow 
vehr::lf::lkeray pos::lnt in s(y)UW::l vir::l sign::lf::lkeyshiyowniy, 
treyhay eM ::Ikstreyn(i)Y::lm int::llekt::lm non deb::lnt/. 
When the words of an ordinance can be carried into 
effect in their own true meaning, they ought not to be 
drawn to a foreign intendment. A maxim of the civil
ians. 
Verba posteriora propter certitudinem addita, ad 
priora qure certitudine indigent, sunt referenda 
/v;)rb::l postiriyor::l propt::lr s:lrd::lt(y)uwd::ln::lm red::lt::l, red 
prayor::l kwiy s:lrd::lt(y)uwd::lniy ind::lj::lnt, S:lnt ref::lr
end::l/ . Subsequent words, added for the purpose of 
certainty, are to be referred to the preceding words 
which require the certainty. 
Verba precaria /v;)rb::l pr::lker(i)Y::l/. In the civil law, 
precatory words; words of trust, or used to create a 
trust. 
Verba pro re et subjecta materia accipi debent /v;)rb::l 
prow riy et s::lbjekt::l m::ltir(i)Y::l reks::lpay deb::lnt/. Words 
ought to be understood in favor of the thing and subject
matter. A maxim of the civilians. 
Verba qure aliquid operari possunt non debent esse 
superflua /v;)rb::l kwiy rel::lkw::ld op::lreray pos::lnt non 
deb::lnt esiy S::lP;)rflUW::l/. Words which can have any 
kind of operation ought not to be [considered] superflu
ous. 
Verba, quantumvis generalia, ad aptitudinem res
tringantur, etiamsi nullam aliam paterentur restric
tionem /v;)rb::l, kwont;)mv::ls jen::lreyl(i)Y::l, red 
rept::lt(y)uwd::ln::lm restriIJgrent::lr, eshiyremsay n;)l::lm 
eyl(i)Y::lm pret::lrent::lr r::lstrikshiyown::lm/. Words, howso
ever general, are restrained to fitness (i.e., to harmonize 
with the subject-matter), though they would bear no 
other restriction. 
Verba relata hoc maxime operantur per referentiam, 
ut in eis inesse videntur /v;)rb::l r::lleyt::l hok mreks::lmiy 
op::lrrent::lr p:lr ref::lrensh(iY)::Im, :It in iY::ls inesiy 
v::ldent::lr / . Related words [words connected with others 
by reference] have this particular operation by the refer
ence, that they are considered as being inserted in those 
[clauses which refer to them]. Words to which reference 
is made in an instrument have the same effect and 
operation as if they were inserted in the clauses refer
ring to them. 
Verba relata inesse videntur /v;)rb::l r::lleyt::l inesiy 
v::ldent::lr/. Words to which reference is made seem to be 
incorporated. 
Verba secundum materiam subjectam intelligi nemo 
est qui nesciat /v;)rb::l s::lk;)nd::lm m::ltiriY::lm s::lbjekt::lm 
intElI::ljay niymow est kway neshiY::lt/. There is no one 
who does not know that words are to be understood 
according to their subject-matter. 
VERDICT 
Verba semper accipienda sunt in mitiori sensu /v;)rb::l 
semp::lr ::Iksipiyend::l s:lnt in mishiyoray sens(y)uw/. 
Words are always to be taken in the milder sense. 
Verba strictre significationis ad latam extendi pos
sunt, si subsit ratio /v;)rb::l striktiy sign::lf::lkey
shiyown::ls red leyt::lm ::Ikstenday pos::lnt, say s;)bsit 
reysh(iy)ow/. Words of a strict or narrow signification 
may be extended to a broad meaning, if there be ground 
in reason for it. A maxim of the civilians. 
Verba sunt indices animi /v;)rb::l s:lnt ind::lsiyz 
ren::lmay / . Words are the indices or indicators of the 
mind or thought. 
Verbis standum ubi nulla ambiguitas /v;)rb::ls strend::lm 
yuwbay n;)l::l remb::lgyuw::ltres/. One must abide by the 
words where there is no ambiguity. 
Verbum imperfecti temporis rem adhuc imperfectam 
significat /v;)rb::lm imp::lrfektay temp::lr::ls rem redh:lk 
imp::lrfekt::lm signif::lkret/. The imperfect tense of the 
verb indicates an incomplete matter. 
Verderer, or verderor /v;)rd::lr::lr/. An officer of the 
king's forest, who is sworn to maintain and keep the 
assizes of the forest, and to view, receive, and enroll the 
attachments and presentments of all manner of tres
passes of vert and venison in the forest. 
Verdict. From the Latin "veredictum," a true declara
tion. Clark v. State, 170 Tenn. 494, 499, 97 S.W.2d 644, 
646. The formal decision or finding made by a jury, 
impaneled and sworn for the trial of a cause, and 
reported to the court (and accepted by it), upon the 
matters or questions duly submitted to them upon the 
trial. The definitive answer given by the jury to the 
court concerning the matters of fact committed to the 
jury for their deliberation and determination. Ralston 
v. Stump, 75 Ohio App. 375, 62 N.E.2d 293, 294, 31 0.0. 
43. 
The usual verdict, one where the jury decides which 
side wins (and how much, sometimes), is called a general 
verdict. When the jury is asked to answer specific 
questions of fact, it is called a special verdict. See 
General verdict and Special verdict below. 
In criminal cases the verdict shall be unanimous, and 
shall be returned by the jury to the judge in open court. 
Fed.R.Crim.P. 31. In civil cases the parties may stipu
late that a verdict of a stated majority of the jurors shall 
be taken as the verdict of the jury. Fed.R.Civil P. 48. 
See also Polling the jury. 
Chance verdict. One determined by hazard or lot, and 
not by the deliberate understanding and agreement of 
the jury. While formerly used, such are now illegal. 
Compromise verdict. One which is the result, not of 
justifiable concession of views, but of improper compro
mise of the vital principles which should have controlled 
the decision. Although it is proper for jurors to har
monize their views and reach a verdict with proper 
regard for each other's opinions, it is not proper for any 
juror to surrender his conscientious convictions on any 
material issue in return for a relinquishment by others

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VERDICT 
of their like settled opinions on another issue, producing 
a result which does not command the approval of the 
whole panel. See also Quofient verdict. 
Directed verdict. Verdict ordered by the judge as a 
matter of law when he rules that the party with the 
burden of proof has failed to make out a prima facie 
case. The judge under these circumstances orders the 
jury to return a verdict for the other party. See Fed.R. 
Civil P. 50. Motion for judgment of acquittal is used in 
place of directed verdict in criminal cases. See Fed.R. 
Crim.P. 29. 
Excessive verdict. See that title. 
False verdict. One obviously opposed to the principles of 
right and justice; an untrue verdict. Formerly, if a jury 
gave a false verdict, the party injured by it might sue 
out and prosecute a writ of attaint against them, either 
at common law or on the statute 11 Hen. VII, c. 24, at 
his election, for the purpose of reversing the judgment 
and punishing the jury for their verdict; but not where 
the jury erred merely in point of law, if they found 
according to the judge's direction. The practice of set
ting aside verdicts and granting new trials, however, so 
superseded the use of attaints that there is no instance 
of one to be found in the books or reports later than in 
the time of Elizabeth, and it was altogether abolished by 
6 Geo. IV, c. 50, § 60. See Non obstante veredicto. 
General verdict. A verdict whereby the jury find either 
for the plaintiff or for the defendant in general terms; 
the ordinary form of a verdict. Glenn v. Sumner, 132 
U.S. 152, 10 S.Ct. 41, 33 L.Ed. 301. A finding by the 
jury in the terms of the issue, or all the issues, referred 
to them. That by which they pronounce generally upon 
all or any of the issues, either in favor of the plaintiff or 
defendant;-distinguished from a special verdict, which 
is that by which the jury finds facts only. 
General verdict with interrogatories. The court may 
submit to the jury, together with appropriate forms for a 
general verdict, written interrogatories upon one or 
more issues of fact the decision of which is necessary to 
a verdict. The court shall give such explanation or 
instruction as may be necessary to enable the jury both 
to make answers to the interrogatories and to render a 
general verdict, and the court shall direct the jury both 
to make written answers and to render a general ver
dict. When the general verdict and the answers are 
harmonious, the appropriate judgment upon the verdict 
and answers shall be entered. When the answers are 
consistent with each other but one or more is inconsist
ent with the general verdict, judgment may be entered 
in accordance with the answers, notwithstanding the 
general verdict, or the court may return the jury for 
further consideration of its answers and verdict or may 
order a new trial. When the answers are inconsistent 
with each other and one or more is likewise inconsistent 
with the general verdict, judgment shall not be entered, 
but the court shall return the jury for further considera
tion of its answers and verdict or shall order a new trial. 
Fed.R.Civil P. 49(b). 
Instructed verdict. See Directed verdict, above. 
Joint verdict. See that title. 
1560 
Judgment notwi thstanding verdict. See Non obstante 
veredicto. 
Open verdict. A verdict of a coroner's jury which finds 
that the subject "came to his death by means to the jury 
unknown," or "came to his death at the hands of a 
person or persons to the jury unknown," that is, one 
which leaves open either the question whether any 
crime was committed or the identity of the criminal. 
Partial verdict. In criminal law, a verdict by which the 
jury acquits the defendant as to a part of the accusation 
and finds him guilty as to the residue. 
Privy verdict. One given after the judge has left or 
adjourned the court, and the jury, being agreed, in order 
to be delivered from their confinement, obtain leave to 
give their verdict privily to the judge out of court. Such 
a verdict is of no force unless afterwards affirmed by a 
public verdict given openly in court. This practice is 
now superseded by that of rendering a sealed verdict. 
Public verdict. A verdict openly delivered by the jury in 
court. 
Quotient verdict. See that title. 
Repugnant verdict. Verdicts are "repugnant" when 
there are charges of two crimes, each of which has 
identical elements, and there is finding of guilt on one 
but not on the other. People v. Blandford, 37 A.D.2d 
1003, 325 N.Y.S.2d 486, 487. 
Sealed verdict. See Sealed. 
Several defendants. If there are two or more defen
dants, the jury at any time during its deliberations may 
return a verdict or verdicts with respect to a defendant 
or defendants as to whom it has agreed; if the jury 
cannot agree with respect to all, the defendant or defen
dants as to whom it does not agree may be tried again. 
Fed.R.Crim.P. 31(b). 
Special verdict. A special finding of the facts of a case 
by a jury, leaving to the court the application of the law 
to the facts thus found. The "special" verdict is a 
statement by the jury of the facts it has found-in 
essence, the jury's answers to questions submitted to it; 
the court determines which party, based on those an
swers, is to have judgment. With the advent of the 
apportionment rule among tortfeasors, closely followed 
by the adoption of a rule of comparative negligence to 
replace the traditional rule of contributory negligence, 
the need to have the jury reveal its specific findings of 
percentages of fault in personal injury and wrongful 
death cases has given rise to the increased use of the 
special verdict. 
The court may require a jury to return only a special 
verdict in the form of a special written finding upon 
each issue of fact. In that event, the court may submit 
to the jury written questions susceptible of categorical 
or other brief answer or may submit written forms of 
the several special findings which might properly be 
made under the pleadings and evidence; or it may use 
such other method of submitting the issues and requir
ing the written findings thereon as it deems most appro-

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1561 
priate. The court shall give to the jury such explana
tion and instructions concerning the matter thus sub
mitted as may be necessary to enable the jury to make 
its findings upon each issue. Fed.R.Civil P. 49(a). 
Split verdict. A verdict in which one party prevails on 
some claims in issue while the other party prevails on 
other claims. Beckman Instruments v. LKB Produkter 
AB, C.A., 892 F.2d 1547. In criminal law, a verdict 
finding a defendant guilty of one charge but innocent of 
another, or finding one defendant guilty while acquit
ting a codefendant. See e.g. Fed.R.Crim.P. 31. 
Stipulation on majo rity verdict. The parties may stipu
late that a verdict of a stated majority of the jurors shall 
be taken as the verdict of the jury. Fed.R.Civil P. 48. 
Verdict by lot. See Chance verdict, above. 
Verdict contrary to law. A verdict which law does not 
authorize jury to render on evidence because conclusion 
drawn is not justified thereby. One which is contrary to 
the principles of law as applied to the facts which the 
jury were called upon to try and contrary to the princi
ples of law which should govern the cause. Piepho v. 
Gesse, 106 Ind.App. 450, 18 N.E.2d 468, 471. See Non 
obstante veredicto. 
Verdict for lesser offense. See Lesser included offense. 
Verdict subject to opinion of court. A verdict returned 
by the jury, the entry of judgment upon which is subject 
to the determination of points of law reserved by the 
court upon the trial. 
Verdict, estoppel by. Rule that where some controlling 
fact or question material to determination of both causes 
has been adjudicated in former suit by court of compe
tent jurisdiction, and same fact or question is again an 
issue between the same parties, adjudication in first 
cause will, if properly presented, be conclusive of the 
same question in later suit, irrespective of whether 
cause of action is the same in both suits. People v. 
Haran, 27 Ill.2d 229, 188 N.E.2d 707, 709. "Estoppel by 
verdict" or "collateral estoppel" provides that prior 
judgment must be deemed conclusive as to all right of 
parties and their privies when same parties or their 
privies are involved with same issues actually or neces
sarily finally determined by court of competent jurisdic
tion in earlier, but different, cause of action. Riley v. 
Unknown Owners of 304 North Oak Park Ave. Bldg., 
Oak Park, 25 1ll.App.3d 895, 324 N.E.2d 78, 85. See also 
Collateral estoppel doctrine; Judgment, estoppel by; Res 
(Res judica ta). 
Veredictum /vehr::ldikt::lm/. L. Lat. In old English law, 
a verdict; a declaration of the truth of a matter in issue, 
submitted to a jury for trial. 
Veredictum, quasi dictum veritatis; ut judicium qua
si juris dictum /vehr::ldikt::lm, kweysay dikt::lm 
vehr::lteyt::ls; ;)t juwdish(iY)::Im kweysay jur::ls dikt::lm/. 
The verdict is, as it were, the dictum [saying] of truth; 
as the judgment is the dictum of law. 
VERILY 
Verge, or virge /viJrj/. In old English law, the compass 
of the royal court, which bounds the jurisdiction of the 
lord steward of the household; it seems to have been 
twelve miles about. An uncertain quantity of land from 
fifteen to thirty acres. Also a stick, or rod, whereby one 
is admitted tenant to a copyhold estate. 
Vergelt /vergelt!. In Saxon law, a mulct or fine for a 
crime. See Weregild. 
Verification. Confirmation of correctness, truth, or au
thenticity, by affidavit, oath, or deposition. Affidavit of 
truth of matter stated and object of verification is to 
assure good faith in averments or statements of party. 
Sheeley v. City of Santa Clara, 215 Cal.App.2d 83, 30 
Cal.Rptr. 121, 123. Sworn or equivalent confirmation of 
truth. For example, a verified complaint typically has 
an attached affidavit of plaintiff to the effect that the 
complaint is true. In accounting, the process of substan
tiating entries in books of account. See also Acknowl
edgment; Affidavit; Authentication; Certification; Confir
mation; Oath; Verify. 
Verified copy. Copy of document which is shown by 
independent evidence to be true. A copy, if successive 
witnesses trace the original into the hands of a witness 
who made or compared the copy. Nu Car Carriers v. 
Traynor, 75 U.S.App.D.C. 174, 125 F.2d 47, 48. 
Verified names. Names verified by county clerk in 
accordance with his duty to check names of signers 
against official registration lists. Allan v. Rasmussen, 
101 Utah 33, 117 P.2d 287, 289. 
Verify. To confirm or substantiate by oath or affidavit. 
Particularly used of making formal oath to accounts, 
petitions, pleadings, and other papers. The word "veri
fied," when used in a statute, ordinarily imports a verity 
attested by the sanctity of an oath. It is frequently used 
interchangeably with "sworn." 
To prove to be true; to confirm or establish the truth 
or truthfulness of; to check or test the accuracy or 
exactness of; to confirm or establish the authenticity of; 
to authenticate; to maintain; to affirm; to support; 
second; back as a friend. MacNeill v. Maddox, 194 Ga. 
802, 22 S.E.2d 653, 654. 
See also Verification. 
Verily /vehr::lliy/. In very truth; beyond doubt or ques
tion; in fact; certainly; truly; confidently; really. 
Veritas, a quocunque dicitur, a Deo est /vehr::ltres, ey 
kwowkiJIJkwiy dis::lt::lr, ey diyow est!. Truth, by whomso
ever pronounced, is from God. 
Veritas demonstrationis tollit errorem nominis 
/vehr::ltres dem::lnstreyshiyown::ls tol::lt ehror::lm 
nom::ln::ls/. The truth of the description removes an 
error in the name. 
Veritas habenda est in juratore; justitia et judicium 
in judice /vehr::ltres h::lbend::l est in jur::ltoriy; j;)stish(iY)::I 
et juwdish(iY)::Im in juwd::lsiy /. Truth is the desideratum 
in a juror; justice and judgment in a judge.

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VERITY 
Veritas nihil veretur nisi abscondi /vehr�tres nay(h)�l 
v�riyt�r naysay �bskonday /. Truth fears nothing but to 
be hid. 
Veritas nimium altercando amittitur /vehr�tres 
nimiy�m olt�rkrendow �mid�t�r/. Truth is lost by exces
sive altercation. 
Veritas nominis tollit errorem demonstrationis /veh
r�tres nom�n�s tol�t ehror�m dem�nstreyshiyown�s/ . 
The truth of the name takes away the error of descrip
tion. 
Veritas, qUa! minime defensatur opprimitur; et qui 
non improbat, approbat /vehr�tres, kwiy min�miy 
defenseyt�r �prim�t�r; et kway non impr:lb:lt repr:lb:lt/. 
Truth which is not sufficiently defended is overpowered; 
and he who does not disapprove, approves. 
Veritatem qui non libere pronunciat proditor est 
veritatis /vehr:lteyd�m kway non IW:lriy pr:ln�nshiy;}t 
prowd;}t;}r est vehr;}teyt;}s/. He who does not freely 
speak the truth is a betrayer of truth. 
Verity. Truth; truthfulness; conformity to fact. The 
records of a court "import uncontrollable verity." 
Verna /v�rn;}/. Lat. In the civil law, a slave born in his 
master's house. 
Versari /v;}rseray/. Lat. In the civil law, to be em
ployed; to be conversant. Versari male in tutela, to 
misconduct one's self in a guardianship. 
Versus /v�rs;}s/. Lat. Against. In the title of a cause, 
the name of the plaintiff is put first, followed by the 
word "versus," then the defendant's name. Thus, 
"Fletcher versus Peck," or "Fletcher against Peck." 
The word is commonly abbreviated "vs." or "v." Vs. 
and versus have become ingrafted upon the English 
language; their meaning is as well understood and their 
use quite as appropriate as the word against could be. 
Vert /v�rt/. In old English law, that power which a man 
had, by royal grant, to cut green wood in a forest. In 
heraldry, green color, called "venus" in the arms of 
princes, and "emerald" in those of peers, and expressed 
in engravings by lines in bend. 
Vertical. Pertaining to a relationship between a buyer 
and a seller-e.g., an agreement between a supplier and 
a retail dealer is called a vertical agreement. See also 
related terms below. 
Vertical integration. Ownership or control of network 
of production and distribution of goods from raw materi
als to sale to ultimate consumer. 
Vertical merger. Merger between two business firms 
that have a buyer-seller relationship; that is, one pro
duces a product that is then sold to the other. U.S. v. 
First Nat. Bank of Jackson, D.C.Miss., 301 F.Supp. 1161, 
1190. Acquisition of one company which buys product 
sold by acquiring company or which sells product bought 
by acquiring company. U.S. v. International Tel. & Tel. 
Corp., D.C.Conn., 306 F.Supp. 766, 774. If a producer or 
wholesaler acquires a retailer, it is a forward merger. If 
a retailer or distributor acquires its producer, it is a 
1562 
backward merger. See also Merger. Compare Horizontal 
merger. 
Vertical price-fixing contract. An illegal agreement to 
maintain prices between producers and wholesalers or 
distributors, between producers and retailers, or be
tween wholesalers or distributors and retailers. An 
agreement between a supplier and a distributor, relating 
to the price at which the distributor will resell the 
supplier's product; also known as resale price mainte
nance, it exists if manufacturer or wholesaler suggests 
resale prices to his retailer and then secures compliance 
with those prices by doing more than announcing his 
price policy and refusing to deal. Levicoff v. General 
Motors Corp., D.C.Pa., 551 F.Supp. 98, 104. Such agree
ments are prohibited by antitrust laws. See Monsanto 
Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760, 104 
S.Ct. 1464, 1469, 79 L.Ed.2d 775. See also Price-fixing; 
Resale price maintenance. Compare Horizontal price-fix
ing. 
Vertical restraints of trade. Anticompetitive agree
ments between entities operating at different levels of 
market structure, such as manufacturers and distribu
tors (e.g., vertical price-fixing; tying arrangement). 
Cha-Car, Inc. v. Calder Race Course, Inc., C.A.Fla., 752 
F.2d 609, 614. See also Tying arrangement; Vertical price
fixing contract. Compare Horizontal restraints of trade. 
Vertical nonprice restraint. A vertical restriction im
posed by a supplier on its dealers, which does not govern 
the resale price. See Tying arrangement. 
Vertical price restraint. A vertical restriction imposed 
by a supplier on its dealers, which governs the price at 
which the product can be resold. See Resale price main
tenance; Vertical price-fixing contract. 
Verus /vir;}s/. Lat. True; truthful; genuine; actual; 
real; just. 
Very. As an adjective means real, actual, or true, but as 
an adverb means in a high degree, exceedingly, extreme
ly; to no small extent. Benoist v. Driveaway Co. of 
Missouri, Mo.App., 122 S. W.2d 86, 90. 
Very high degree of care. That degree of care that 
would be used by a very cautious, prudent, and compe
tent person under like or similar circumstances. Wich
ita Valley Ry. Co. v. Williams, Tex.Civ.App., 3 S.W.2d 
141, 142. 
Very lord and very tenant. They that are immediate 
lord and tenant one to another. 
Vessel. A ship, brig, sloop, or other craft used, or capa
ble of being used, in navigation on water. 
In order to be a "vessel," for purposes of an action 
under Jones Act, the structure's purpose must to some 
reasonable degree be the transportation of passengers, 
cargo or equipment from place to place across navigable 
waters. Buna v. Pacific Far East Line, Inc., D.C.Cal., 
441 F.Supp. 1360, 1364. Though, the term "vessel," in 
admiralty law, is not limited to ships or vessels engaged 
in commerce. St. Hilaire Moye v. Henderson, C.A.Ark., 
496 F.2d 973, 979. Many special purpose craft, such as

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1563 
dredges, floating derricks and barges equipped for spe
cial purposes or operations are "vessels" within meaning 
of Jones Act, and persons regularly employed aboard 
such a vessel in aid of its purposes are "seamen." Hill 
v. Diamond, C.A.Va., 311 F.2d 789, 791, 792. On the 
other hand, however, everything that floats is not neces
sarily a "vessel," in purview of Jones Act. Bennett v. 
Perini Corp., C.A.Mass., 510 F.2d 114, 116. For exam
ple, a floating dry dock which was moored by chains and 
cables to shipyard dock at time of injury to shipyard 
employee and which was in use as a dry dock was not a 
"vessel" and therefore no warranty of seaworthiness 
arose. Keller v. Dravo Corp., C.A.La., 441 F.2d 1239, 
1244. 
Foreign vessel. A vessel owned by residents in, or sail
ing under the flag of, a foreign nation. 
Public vessel. One owned and used by a nation or 
government for its public service, whether in its navy, 
its revenue service, or otherwise. 
Vest. To give an immediate, fixed right of present or 
future enjoyment. Baldwin v. Fleck, Tex.Civ.App., 168 
S.W.2d 904, 909. To accrue to; to be fixed; to take 
effect. 
To clothe with possession; to deliver full possession of 
land or of an estate; to give seisin; to enfeoff. See also 
Vested. 
Vesta /vest�/. The crop on the ground. 
Vested. Fixed; accrued; settled; absolute; complete. 
Having the character or given the rights of absolute 
ownership; not contingent; not subject to be defeated by 
a condition precedent. Rights are "vested" when right 
to enjoyment, present or prospective, has become proper
ty of some particular person or persons as present inter
est; mere expectancy of future benefits, or contingent 
interest in property founded on anticipated continuance 
of existing laws, does not constitute "vested right." 
Vaughn v. Nadel, 228 Kan. 469, 618 P.2d 778, 783. See 
also Accrue; Vest, and specific types of vested interests, 
infra. 
Vested devise. See Devise. 
Vested estate. An interest clothed with a present, legal, 
and existing right of alienation. Chaison v. Chaison, 
Tex.Civ.App., 154 S.W.2d 961, 964. Any estate, whether 
in possession or not, which is not subject to any condi
tion precedent and unperformed. The interest may be 
either a present and immediate interest, or it may be a 
future but uncontingent, and therefore transmissible, 
interest. Estate by which present interest is invariably 
fixed to remain to determinate person on determination 
of preceding freehold estate. An estate, when the per
son or the class which takes the remainder is in exist
ence or is capable of being ascertained when the prior 
estate vests, Commissioner of Internal Revenue v. Kel
logg, C.C.A.3, 119 F.2d 54, 57; or when there is an 
immediate right of present enjoyment or a present right 
of future enjoyment. 
Vested gift. A gift that is absolute and not contingent 
or conditional. A gift is vested if it is immediate, 
VESTED PENSION 
notwithstanding that its enjoyment may be postponed. 
A future gift when the right to receive it is not subject 
to a condition precedent. 
Vested in interest. A legal term applied to a present 
fixed right of future enjoyment; as reversions, vested 
remainders, such executory devises, future uses, condi
tional limitations, and other future interests as are not 
referred to, or made to depend on, a period or event that 
is uncertain. 
Vested in possession. A legal term applied to a right of 
present enjoyment actually existing. See Vest. 
Vested interest. A present right or title to a thing, 
which carries with it an existing right of alienation, 
even though the right to possession or enjoyment may 
be postponed to some uncertain time in the future, as 
distinguished from a future right, which may never 
materialize or ripen into title, and it matters not how 
long or for what length of time the future possession or 
right of enjoyment may be postponed, if the present 
right exists to alienate and pass title. Fugazzi v. Fugaz
zi's Committee, 275 Ky. 62, 120 S.W.2d 779, 781. A 
future interest not dependent on an uncertain period or 
event, or a fixed present right of future enjoyment. 
When a person has a right to immediate possession on 
determination of preceding or particular estate. One in 
which there is a present fixed right, either of present 
enjoyment or of future enjoyment. Painter v. Hersch
berger, 340 Mo. 347, 100 S.W.2d 532, 535. It is not the 
uncertainty of enjoyment in the future, but the uncer
tainty of the right of enjoyment, which makes the differ
ence between a "vested" and a "contingent" interest. A 
future interest is vested when there is a person in being 
who would have a right, defeasible or indefeasible, to the 
immediate possession of the property, upon the ceasing 
of the intermediate or precedent interest. 
Vested legacy. A legacy given in such terms that there 
is a fixed, indefeasible right to its payment. A legacy 
payable at a future time, certain to arrive, and not 
subject to conditions precedent, is vested, where there is 
a person in esse at the testator's death capable of taking 
when the time arrives, though his interest may be 
altogether defeated by his own death. A legacy is said 
to be vested when the words of the testator making the 
bequest convey a transmissible interest, whether present 
or future, to the legatee in the legacy. Thus a legacy to 
one to be paid when he attains the age of twenty-one 
years is a vested legacy, because it is given uncondition
ally and absolutely, and therefore vests an immediate 
interest in the legatee, of which the enjoyment only is 
deferred or postponed. 
Vested pension. Said of a pension plan when an em
ployee (or his or her estate) has rights to all the benefits 
purchased with the employer's contributions to the plan 
even if the employee is not employed by this employer 
at the time of retirement. One in which the right to be 
paid is not subject to forfeiture if the employment rela
tionship terminates before the employee retires. John
son v. Johnson, 131 Ariz. 38, 638 P.2d 705, 708. Vesting 
of qualified pension plans is governed by the Employees

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VESTED PENSION 
Retirement Income Security Act (ERISA). See also 
Vesting. 
Vested remainder. See Remainder. 
Vested rights. In constitutional law, rights which have 
so completely and definitely accrued to or settled in a 
person that they are not subject to be defeated or 
canceled by the act of any other private person, and 
which it is right and equitable that the government 
should recognize and protect, as being lawful in them
selves, and settled according to the then current rules of 
law, and of which the individual could not be deprived 
arbitrarily without injustice, or of which he could not 
justly be deprived otherwise than by the established 
methods of procedure and for the public welfare. Such 
interests as cannot be interfered with by retrospective 
laws; interests which it is proper for state to recognize 
and protect and of which individual cannot be deprived 
arbitrarily without injustice. American States Water 
Service Co. of California v. Johnson, 31 CaI.App.2d 606, 
88 P.2d 770, 774. Immediate or fixed right to present or 
future enjoyment and one that does not depend on an 
event that is uncertain. A right complete and consum
mated, and of such character that it cannot be divested 
without the consent of the person to whom it belongs, 
and fixed or established, and no longer open to contro
versy. State ex reI. Milligan v. Ritter's Estate, Ind.App., 
46 N.E.2d 736, 743. 
Vestigial words Ivestij�l w;}rdz/. Those contained in a 
statute which by reason of a succession of statutes on 
the same subject-matter, amending or modifying previ
ous provisions of the same, are rendered useless or 
meaningless by such amendments. They should not be 
permitted to defeat the fair meaning of the statute. 
Saltonstall v. Birtwell, 164 U.S. 54, 70, 17 S.Ct. 19, 41 
L.Ed. 348. 
Vestigium Ivestij(iy)�m/. Lat. In the law of evidence, a 
vestige, mark, or sign; a trace, track, or impression left 
by a physical object. 
Vesting. Right that employee acquires to various em
ployer-contributed benefits (e.g., pension) after having 
been employed for requisite number of years. Federal 
laws (e.g., ERISA) govern vesting rights. See also Vested 
pension. 
Vesting order. In English law, an order which may be 
granted by the chancery division of the high court of 
justice (and formerly by chancery), passing the legal 
estate in lieu of a conveyance. Commissioners also, 
under modern statutes, have similar powers. 
Vestry. In ecclesiastical law, the place in a church 
where the priest's vestures are deposited. Also an as
sembly of the minister, church-wardens, and parish
ioners, usually held in the vestry of the church, or in a 
building called a "vestry-hall," to act upon business of 
the church. 
Vestry-cess Ivestriykesl. A rate levied in Ireland for 
parochial purposes, abolished by St. 27 Vict., c. 17. 
1564 
Vestry-clerk Ivestriykl;}rkl"klark/. An officer appoint
ed to attend vestries, and take an account of their 
proceedings, etc. 
Vestry-men Ivestriym�n/. A select number of parish
ioners elected in large and populous parishes to take 
care of the concerns of the parish; so called because 
they used ordinarily to meet in the vestry of the church. 
Vestura Ivest(y)ur�/. A crop of grass or corn. Also a 
garment; metaphorically applied to a possession or sei
sin. 
Vestura terrre Ivest(y)ur� tehriy/. In old English law, 
the vesture of the land; that is, the corn, grass, under
wood, sweepage, and the like. 
Vesture Ivesty�r/. In old English law, profit of land. 
"How much the vesture of an acre is worth." 
Vesture of land Ivesty�r �v lrend/. A phrase including 
all things, trees excepted, which grow upon the surface 
of the land, and clothe it externally. 
Veteran. In general, any honorably discharged soldier, 
sailor, marine, nurse, or army field clerk, who has 
served in military service of the United States. 
Veterans Administration. An independent federal 
agency that administers a system of benefit programs 
for veterans and their dependents. These benefits in
clude compensation payments for disabilities or death 
related to military service; pensions; education and 
rehabilitation; home loan guaranty programs; burial, 
including cemeteries, markers, flags, etc.; and a compre
hensive medical program involving a widespread system 
of nursing homes, clinics, and hospitals. Effective in 
1989 the former Veterans Administration became the 
Department of Veterans Affairs, and was elevated to 
cabinet level status. See also Court of Veterans Appeals. 
Veterans Affairs Department. See Veterans Admin istra
tion. 
Veterans Appeals Court. See Court of Veterans Ap
peals. 
Vetera statuta Iviyt�r� st�t(y)uwt�/. Lat. Ancient stat
utes. The English statutes from Magna Charta to the 
end of the reign of Edward II are so called; those from 
the beginning of the reign of Edward III being contradis
tinguished by the appellation of "Nova Statuta. " 
Veterinarian. One who practices the art of treating 
diseases and injuries of domestic animals, surgically or 
medically. 
Vetitum namium Iviyt��m neym(i)y�m/. L. Lat. 
Where the bailiff of a lord distrains beasts or goods of 
another, and the lord forbids the bailiff to deliver them 
when the sheriff comes to make replevin, the owner of 
the cattle may demand satisfaction in placitum de vetito 
namio. 
Veto (Lat. I forbid.) The refusal of assent by the execu
tive officer whose assent is necessary to perfect a law 
which has been passed by the legislative body, and the 
message which is usually sent to such body by the 
executive, stating such refusal and the reasons therefor.

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1565 
A refusal by the president or a governor to sign into law 
a bill that has been passed by a legislature. In the case 
of a presidential veto, the bill can still become a law if 
two-thirds of each House of Congress votes to override 
the veto. Art. I, § 7, V.S.Const. 
It is either absolute or qualified, according as the 
effect of its exercise is either to destroy the bill finally, 
or to prevent its becoming law unless again passed by a 
stated proportion of votes or with other formalities. Or 
the veto may be merely suspensive. 
Line item veto. The power which governors possess in 
most States to veto items in appropriation bills without 
affecting any other provisions of such bills. 
Overriding veto. Passing a law again that has already 
been vetoed (turned down and left unsigned) by a 
government official such as a governor, president, etcet
era. In the federal government, a bill vetoed by the 
President must receive two-thirds majority in Congress 
to override the veto and enact the measure into law. 
Pocket veto. Non-approval of a legislative act by the 
president or state governor, with the result that it fails 
to become a law. Such is not the result of a written 
disapproval (a veto in the ordinary form), but rather by 
remaining silent until the adjournment of the legislative 
body, when that adjournment takes place before the 
expiration of the period allowed by the constitution for 
the examination of the bill by the executive. 
Inaction on the part of the President when sent a bill 
just passed by Congress which has the effect of vetoing 
it. While Presidential inaction for ten days after a bill's 
presentment normally results in the bill becoming law 
just as if signed, inaction by the President results in a 
"pocket veto" if Congress adjourns and thereby prevents 
the bill's return within the ten-day period after present
ment. V.S. Const., Art. I, § 7. 
Veto power. Executive's power conditionally to prevent 
acts passed by legislature, which have not yet become 
law, from becoming law. Fitzsimmons v. Leon, C.C.A. 
Puerto Rico, 141 F.2d 886, 888. See Veto. 
Vetus jus /viyt�s j;lS/. Lat. A term used in the civil 
law, sometimes to designate the law of the Twelve 
Tables, and sometimes merely a law which was in force 
previous to the passage of a subsequent law. 
Vex. To harass, disquiet, annoy; as by repeated litiga
tion upon the same facts. 
Vexari /vekseray /. Lat. To be harassed, vexed, or 
annoyed; to be prosecuted; as in the maxim, Nemo 
debet bis vexari pro una et eadem causa /niymow deb�t 
bis vekseray prow yuwn� ed iyeyd;;,m k6z�/, no one 
should be twice prosecuted for one and the same cause. 
Vexata qurestio /vekseyt;;, kwest(i)yow /. Lat. A vexed 
question; a question often agitated or discussed, but not 
determined or settled; a question or point which has 
been differently determined, and so left doubtfuL 
Vexation. The injury or damage which is suffered in 
consequence of the tricks of another. 
VIABILITY 
Vexatious /vekseysh;;,s/. Without reasonable or proba
ble cause or excuse. Gardner v. Queen Ins. Co. of 
America, 232 Mo.App. 1101, 115 S.W.2d 4, 7. 
Vexatious Actions Act. An act of parliament of 1896, 
authorizing the High Court to make an order, on the 
application of the attorney-general, that a person shown 
to be habitually and vexatiously litigious, without rea
sonable ground, shall not institute legal proceedings in 
that or any other court, without leave of the High Court 
judge thereof, upon satisfactory proof that such legal 
proceedings are not an abuse of the process of the court 
and that there is a prima facie ground therefor. The 
order when made is published in the Gazette. 
Vexatious delay or refusal to pay. Term used in 
insurance statutes providing for penalties for insurer's 
conduct in unjustifiably refusing to pay insurance 
claims, e.g., a refusal to pay insurance claim, based on 
suspicion without substantial fact to support that suspi
cion, is "vexatious refusal to pay." Laster v. State Farm 
Fire and Cas. Co., Mo.App., 693 S.W.2d 195, 197. An 
insurer is allowed an honest difference of opinion re
garding its liability under a policy and so long as it acts 
in good faith, may contest either an issue of fact or an 
issue of law. Camp v. John Hancock Mut. Life Ins. Co. 
of Boston, Mass., Mo.App., 165 S.W.2d 277, 283. 
Vexatious proceeding. Proceeding instituted mali
ciously and without probable cause. Paramount Pic
tures v. Blumenthal, 256 App.Div. 756, 11 N.Y.S.2d 768, 
772. Type of malicious prosecution differing principally 
because based on civil action exists when the party 
bringing proceeding is not acting bona fide, and merely 
wishes to annoy or embarrass his opponent, or when it is 
not calculated to lead to any practical result. Such a 
proceeding is often described as "frivolous and vexa
tious," and the court may dismiss it on that ground. See 
Malicious prosecution. 
Vexatious refusal to pay. See Vexatious delay or refusal 
to pay. 
Vexed question. A question or point of law often dis
cussed or agitated, but not determined or settled. 
V.G. An abbreviation for "verbi gratia, " for the sake of 
example. 
Via /vay�/. Lat. Way, road. 
In the civil law, way; a road; a right of way. The 
right of walking, riding, and driving over another's land. 
A species of rural servitude, which included iter (a 
footpath) and actus (a driftway). 
In old English law, a way; a public road; a foot, horse, 
and cart way. 
Via antiqua via est tuta /vay;;, rentaykw� vay;;, est 
t(y)uwt;;,/. The old way is the safe way. 
Viability. Capability of living. A term used to denote 
the power a new-born child possesses of continuing its 
independent existence. That stage of fetal development 
when the life of the unborn child may be continued 
indefinitely outside the womb by natural or artificial 
life-supportive systems. The constitutionality of this 
statutory definition (V.A.M.S. (Mo.), § 188.015) was up-

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VIABILITY 
held in Planned Parenthood of Central Mo. v. Danforth, 
428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. 
For purposes of abortion regulation, viability is 
reached when, in the judgment of the attending physi
cian on the particular facts of the case before him, there 
is a reasonable likelihood of the fetus' sustained survival 
outside the womb, with or without artificial support. 
Colautti v. Franklin, 439 U.S. 379, 388, 99 S.Ct. 675, 682, 
58 L.Ed.2d 596. See also Viable; Viable child. 
Viable. Livable; having the appearance of being able to 
live; capable of life. This term is applied to a newly
born infant, and especially to one prematurely born, 
which is not only born alive, but in such a state of 
organic development as to make possible the continu
ance of its life. See Viability; Viable child. 
Viable child. Unborn child who is capable of indepen
dent existence outside his or her mother's womb, Libbee 
v. Permanente Clinic, 268 Or. 258, 518 P.2d 636, 637; 
even if only in an incubator, Sylvia v. Gobeille, 101 R.I. 
76, 220 A.2d 222, 223. In most states a viable unborn 
child is considered a person under the wrongful death 
statute, e.g., DiDonato v. Wortman, 320 N.C. 423, 358 
S.E.2d 489, and in some states is considered to be a 
person under a homicide statute, e.g., Comm. v. Cass, 
392 Mass. 799, 467 N.E.2d 1324. See also Child (Rights 
of unborn child); Unb orn child; Viability; Wrongful death 
statutes. 
Vire servitus /vayiy S;}rv�t�s/. Lat. A right of way over 
another's land. 
Viagere rente /viyazher ront/. In French law, a rent
charge or annuity payable for the life of the annuitant. 
Viander /vay�nd�r/. In old English law, a returning 
officer. 
Via ordinaria; via executiva /vay� ord�ner(i)y�; vay� 
�gzeky�tayv�/. In the law of Louisiana, the former 
phrase means in the ordinary way or by ordinary pro
cess, the latter means by executory process or in an 
executory proceeding. A proceeding in a civil action is 
"ordinary" when a citation takes place and all the 
delays and forms of law are observed; "executory" when 
seizure is obtained against the property of the debtor, 
without previous citation, in virtue of an act or title 
importing confession of judgment, or in other cases 
provided by law. 
Via publica /vay� p;}bbk�/. In the civil law, a public 
way or road, the land itself belonging to the public. 
Via regia /vay� riyj(iy)�/. In English law, the king's 
highway for all men. The highway or common road, 
called "the king's" highway, because authorized by him 
and under his protection. 
Viator /vayeyt�r/. Lat. In Roman law, a summoner or 
apparitor; an officer who attended on the tribunes and 
rediles. 
Via trita est tutissima /vay� trayt� est t(y)uwtis�m�/. 
The trodden path is the safest. 
Vi aut clam /vay ot klrem/. Lat. In the civil law, by 
force or covertly. 
1566 
Vi bonorum raptorum /vay bownor�m rreptor�m/. Lat. 
In the civil law, of goods taken away by force. The 
name of an action given by the prretor as a remedy for 
the violent taking of another's property. 
Vicar. One who performs the functions of another; a 
substitute. Also the incumbent of an appropriated or 
impropriated ecclesiastical benefice, as distinguished 
from the incumbent of a non-appropriated benefice, who 
is called a "rector." 
Vicarage. In English ecclesiastical law, the living or 
benefice of a vicar, as a parsonage is of a parson. 1 
Bl.Comm. 387, 388. 
Vicar general. An ecclesiastical officer who assists the 
archbishop in the discharge of his office. 
Vicarial tithes /v�ker(i)y�l tayc3z/. Petty or small tithes 
payable to the vicar. 
Vicario, etc. /v�ker(i)yow/. An ancient writ for a spiri
tual person imprisoned, upon forfeiture of a recogni
zance, etc. 
Vicarious liability. The imposition of liability on one 
person for the actionable conduct of another, based 
solely on a relationship between the two persons. Indi
rect or imputed legal responsibility for acts of another; 
for example, the liability of an employer for the acts of 
an employee, or, a principal for torts and contracts of an 
agent. See also Imputed negligence; Respondeat superi
or. Compare Strict liabili ty. 
Vicarius apostolicus /v�ker(i)y�s rep�stobk�s/. An offi
cer through whom the Pope exercises authority in parts 
remote, and who is sometimes sent with episcopal func
tions into provinces where there is no bishop resident or 
there has been a long vacancy in the see, or into infidel 
or heretical countries. 
Vicarius non habet vicarium /v�ker(i)y�s non heyb�t 
v�ker(i)y�m/. A deputy has not [cannot have] a deputy. 
A delegated power cannot be again delegated. 
Vice, n. A fault, defect, or imperfection. Immoral con
duct, practice or habit; e.g. prostitution. 
As applied to an animal, a bad habit or failing. 
In the civil law, redhibitory vices are such faults or 
imperfections in the subject-matter of a sale as will give 
the purchaser the right to return the article and de
mand back the price. 
Vice, adj. Lat. In the place or stead; substitution for. 
Vice mea, in my place. 
Vice-admiral. An officer in the navy ranking below an 
admiral. 
Vice-admiral of the coast. In England, a county officer 
formerly appointed by the admiral "to be answerable to 
the high admiral for all the coasts of the sea, when need 
and occasion shall be." He also had power to arrest 
ships, when found within a certain district, for the use of 
the king. His office was judicial as well as ministerial. 
Vice-admiralt y courts. In English law, courts formerly 
established in the king's possessions beyond the seas,

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1567 
with jurisdiction over maritime causes, including those 
rela'ting to prize. 
Vice-chamberlain. In England, formerly a great officer 
under the lord chamberlain, who, in'the absence of the 
lord chamberlain, had the control and command of the 
officers appertaining to that part of the royal household 
which was called the "chamber." 
Vice-chancellor. See Chancellor. 
Vice-comes. In England, a title formerly bestowed on 
the sheriff of a county, when he was regarded as the 
deputy of the count or earl. 
Vice-comitissa. In old English law, a viscountess. 
Vice-commercial agent. In the consular service of the 
United States, this was formerly the title of a consular 
officer who was substituted temporarily to fill the place 
of a commercial agent when the latter was absent or 
relieved from duty. See Commercial agent. 
Vice-constable of England. An ancient officer in the 
time of Edward IV. 
Vice-consul. In the consular service of the United 
States a consular officer who is substituted temporarily 
to fill the place of a consul who is absent or relieved 
from duty. Consular officer who is subordinate to a 
consul or consul general. In international law generally 
tq.e term designates a commercial agent who acts in the 
place or stead of a consul or who has charge of a portion 
of his territory. In old English law, it meant the deputy 
or substitute of an earl (comes), who was anciently called 
"consul," answering to the more modern "vice-comes. " 
Vice-dominus episcopi. The vicar general or commis
sary of a bishop. 
Vice-gerent. A deputy or lieutenant. 
Vice-judex. In old Lombardic law, a deputy judge. 
Vice-marshal. An officer who was appointed to assist 
the earl marshal. 
Vice-President of the United States. The title of the 
second officer, in point of rank, in the executive branch 
of the government of the United States. In addition to 
his role as President of the Senate, the Vice President is 
empowered to succeed to the Presidency, pursuant to 
Article II and the 20th and 25th Amendments to the 
Constitution. The executive functions of the Vice Presi
dent include participation in all Cabinet meetings, and, 
by statute, membership in the National Security Coun
cil, the Domestic Council, and the Board of Regents of 
the Smithsonian Institution. By designation of the 
President, the Vice President is Vice Chairman of the 
National Security Council and the Domestic Council, 
and Chairman of the Commission on CIA Activities 
Within the United States. 
Vice-principal. See Principal. 
Vice-versa. Conversely; in inverted order; in reverse 
manner. 
Vice crimes. Generic term applied to crimes of immoral 
conduct such as prostitution, gambling, pornography. 
VICTIMLESS CRIMES 
Viceroy /viJ.ysroy /. A person clothed with authority to 
act in place of the king; hence, the usual title of the 
governor of a dependency. 
Vicinage /vis:ln:lj/. Neighborhood; near dwelling; vi
cinity. In modern usage, it means the county or partic
ular area where a trial is had, a crime committed, etc. 
At common law, accused had the right to be tried by, 
jury of the neighborhood or "vicinage," which was inter
preted to mean the county where the crime was commit
ted. People v. Goldswer, 39 N.Y.2d 656, 385 N.Y.S.2d 
274, 350 N .E.2d 604, 606. 
Vicinetum /vis:lniyt:lm/. The neighborhood; vicinage; 
the venue. 
Vicinity. Quality or state of being near, or not remote; 
nearness; propinquity; proximity; a region about, near 
or adjacent; adjoining space or country. Casper v. City 
and County of San Francisco, 6 Cal.2d 376, 57 P.2d 920, 
922. Neighborhood; etymologically, by common under
standing, it admits of a wider latitude than proximity or 
contiguity, and may embrace a more extended space 
than that lying contiguous to the place in question; and, 
as applied to towns and other territorial divisions, may 
embrace those not adjacent. 
Vicini viciniora prresumuntur scire /v:lsaynay 
v:lsiniy6r� priyz(y):lm�nt�r sayriy/. Persons living in 
the neighborhood are presumed to know the neighbor
hood. 
Vicious propensity. A propensity or tendency of ani
mal to do any act which might endanger the safety of 
persons and property of others in a given situation. 
Hartman v. Aschaffenburg, La.App., 12 So.2d 282, 286. 
Vicis et venellis mundandis /vays:ls et v:lnel:ls m:ln
da!nd�s/. An ancient writ against the mayor or bailiff 
of a town, etc., for the clean keeping of their streets and 
lanes. 
Vicountiel, or vicontiel /vaykawnsh:llrk6n 0 /. Any
thing that belongs to the sheriffs, as vicontiel writs; i.e., 
such as are triable in the sheriffs court. As to vicontiel 
rents, see St. 3 & 4 Wm. IV, c. 99, §§ 12, 13, which places 
them under the management of the commissioners of 
the woods and forests. 
Vicountiel jurisdiction /vaykawnsh�l jur�sdiksh�n/. 
That jurisdiction which belongs to the officers of a 
county; as sheriffs, coroners, etc. 
Victim. The person who is the object of a crime or tort, 
as the victim of a robbery is the person robbed. Person 
who court determines has suffered pecuniary damages 
as result of defendant's criminal activities; that person 
may be individual, public or private corporation, govern
ment, partnership, or unincorporated association. State 
v. Stayer, Utah, 706 P.2d 611, 613. See also Restitution. 
Victim impact statement. Statement read into the 
record during the sentencing phase of a criminal trial to 
inform the court about the impact of the crime on the 
victim or victim's family. 
Victimless crimes. Term applied to a crime which 
generally involves only the criminal, and which has no

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VICTIMLESS CRIMES 
direct victim, as in the crime of illegal possession of 
drugs. 
Victualler /vit(;))l;)r/. In English law, a person autho
rized by law to keep a house of entertainment for the 
public; a publican. One who serves food or drink pre
pared for consumption on the premises. 
Victus /vikt;)s/. Lat. In the civil law, sustenance; sup
port; the means of living. 
Victus, victori in expensis condemnandus est /vikt;)s, 
viktoray in ;)kspEms;)s kondemnrend;)s est/. The van
quished is to be condemned in costs to the conqueror, or 
he who loses the suit pays costs to his adversary. State 
ex reI. Macri v. City of Bremerton, 8 Wash.2d 93, 111 
P.2d 612, 620. 
Vidame /viydrem/. In French feudal law, originally, an 
officer who represented the bishop, as the viscount did 
the count. In process of time, these dignitaries erected 
their offices into fiefs, and became feudal nobles, such as 
the vidame of Chartres, Rheims, etc., continuing to take 
their titles from the seat of the bishop whom they 
represented, although the lands held by virtue of their 
fiefs might be situated elsewhere. 
Vide /vaydiy/. Lat. A word of reference. Vide ante, or 
vide supra, refers to a previous passage, vide post, or 
vide infra, to a subsequent passage, in a book. 
Videbis ea srepe committi qure srepe vindicantur 
/v;)diyb;)s iy;) siypiy k;)mitay kwiy siypiy vind;)
krent;)r/. You will see those things frequently commit
ted which are frequently punished. 
Videlicet /v;)del;)s;)t/°diyo /. Lat. The words "to-wit," or 
"that is to say," so frequently used in pleading, are 
technically called the "videlicet" or "scilicet;" and when 
any fact alleged in pleading is preceded by, or accompa
nied with these words, such fact is, in the language of 
the law, said to be "laid under a videlicet." The use of 
the videlicet is to point out, particularize, or render 
more specific that which has been previously stated in 
general language only; also to explain that which is 
doubtful or obscure. Its common office is to state time, 
place, or manner which are of the essence of the matter 
in issue. 
Videtur qui surdus et mutus ne poet faire alienation 
/v;)diyt;)r kway s;}rt;)s et myuwt;)s n;) pyuw fer 
eyl(i)y;)neysh;)n/. It seems that a deaf and dumb man 
cannot alienate. 
Vidimus /vid;)m;)s/. An inspeximus (q. v.). 
Vidua regis /vidyuw;) riyj;)s/. Lat. In old English law, 
a king's widow. The widow of a tenant in capite. So 
called, because she was not allowed to marry a second 
time without the king's permission; obtaining her dower 
also from the assignment of the king, and having the 
king for her patron and defender. 
Viduitatis professio / v;)dyuw;)teyt;)s pr;)fesh(iy )ow / . 
Lat. The making a solemn profession to live a sole and 
chaste woman. 
Viduity /vidyuw;)tiy/. Widowhood. 
1568 
Vie. Fr. Life; occurring in the phrases cestui que vie, 
pur autre vie, etc. 
Vi et armis /vay et arm;)s/. Lat. With force and arms. 
See Trespass. • 
View. The common law right of prospect; the outlook or 
prospect from the windows of one's house. A species of 
urban servitude which prohibits the obstruction of such 
prospect. 
The act or proceeding by which tribunal goes to an 
object which cannot be produced in court because it is 
immovable or inconvenient to remove, and there ob
serves it. Conner v. Parker, Tex.Civ.App., 181 S.W.2d 
873, 874. An inspection by the jury of property in 
controversy, of an accident scene, of a place where a 
crime has been committed, etc. An inspection by the 
fact finding tribunal which is a species of real evidence. 
The appropriate procedures to be followed in connec
tion with views are widely regulated by state statute. 
At common law, and generally in civil cases today, the 
presence of the trial judge at a view is not required, the 
more common practice being for the jury to be conduct
ed to the scene by "showers," expressly commissioned 
for the purpose. Attendance at the view by the parties 
and their counsel is generally permitted though subject 
to the discretion of the trial judge. In criminal cases, 
the rights of the defendant to have the judge present at 
the view, and to be present himself, are frequently 
provided for by statute. 
See also Inspection; Plain view doctrine; Viewers. 
View and delivery. In old English law, when a right of 
common was exercisable not over the whole waste, but 
only in convenient places indicated from time to time by 
the lord of the manor or his bailiff, it was said to be 
exercisable after "view and delivery." 
View, demand of. At common law, in real actions, the 
defendant was entitled to demand a view, that is, a sight 
of the thing, in order to ascertain its identity and other 
circumstances. As, if a real action were brought against 
a tenant, and such tenant did not exactly know what 
land it was that the demandant asked, then he might 
pray the view, which was that he might see the land 
which the demandant claimed. See also View. 
Viewers. Persons appointed by a court to make an 
investigation of certain matters, or to examine a particu
lar locality (as, the proposed site of a new road), and to 
report to the court the result of their inspection, with 
their opinion on the same. 
View of an inquest. A view or inspection taken by a 
jury, summoned upon an inquisition or inquest, of the 
place or property to which the inquisition or inquiry 
refers. 
View of frank-pledge. In old English law, an examina
tion to see if every freeman above twelve years of age 
within the district had taken the oath of allegiance, and 
found nine freeman pledges for his peaceable demeanor. 
Vif-gage /vifgeyj/. L. Fr. In old English law, a vivum 
vadium or living pledge, as distinguished from a mort-

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gage or dead pledge. Properly, an estate given as securi
ty for a debt, the debt to be satisfied out of the rents, 
issues, and profits. 
Vigil. In ecclesiastical law, the eve or next day before 
any solemn feast. 
Vigilance. Watchfulness; precaution; a proper degree 
of activity and promptness in pursuing one's rights or 
guarding them from infraction, or in making or dis
covering opportunities for the enforcement of one's law
ful claims and demands. It is the opposite of laches. 
Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514, 518. 
Vigilant. Watchful, awake, and on the alert; attentive 
to discover and avoid danger, or to provide for safety; 
circumspect; cautious; wary. City Ice & Fuel Co. v. 
Center, 54 Ohio App. 116, 6 N.E.2d 580, 583, 7 0.0. 434. 
Vigilantibus et non dormientibus jura subveniunt 
Ivij�lrent�b�s et non dormiyent�b�s jur� s�bviyn(i)y�nt/. 
The laws aid those who are vigilant, not those who sleep 
upon their rights. 
Vigor Ivig�r/. Lat. Strength; virtue; force; efficiency. 
Proprio vigore Iprowpriyow v�goriy/, by its own force. 
Viis et modis Ivay�s et mowd�s/. Lat. In the ecclesias
tical courts, service of a decree or citation viis et modis, 
i.e., by all "ways and means" likely to affect the party 
with knowledge of its contents, is equivalent to substi
tuted service in the temporal courts, and is opposed to 
personal service. 
ViII. In old English law, this word was used to signify 
the parts into which a hundred or wapentake was divid
ed. It also signifies a town or city. 
Villa est ex pluribus mansionibus vicinata, et collata 
ex pluribus vicinis, et sub appellatione villarum 
continentur burgi et civitates lvil� est eks pl(y)ur�b�s 
mrens(h)iyown�b�s vis�neyt�, et k�leyt� eks pl(y)ur�b�s 
v�sayn�s, et s�b rep�leyshiyowniy v�ler�m kont�nent�r 
b�rjay et siv�teytiyz/. Vill is a neighborhood of many 
mansions, a collection of many neighbors, and under the 
term of "vills" boroughs and cities are contained. 
Village. Traditionally, word "village" has connoted an 
area possessed of some attributes of a community, and is 
not a technical word, or one having a peculiar meaning, 
but is a common word in general usage and is merely an 
assemblage or community of people, a nucleus or cluster 
for residential and business purposes, a collective body 
of inhabitants, gathered together in one group. Union 
Sav. Bank of Patchogue v. Saxon, 118 U.S.App.D.C. 296, 
335 F.2d 718, 721. Term refers to any small assemblage 
of houses for dwellings or business, or both, whether 
they are situated on regularly laid out streets and al
leys, or not. State on Information of Eagleton v. 
Champ, Mo., 393 S.W.2d 516, 524. 
In some states, this is the legal description of a class of 
municipal corporations of smaller population than 
"cities" and having a simpler form of government, and 
corresponding to "towns" and "boroughs," as these 
terms are employed elsewhere. 
Black's Law Dictionary 6th Ed.-34 
VILLENOUS JUDGMENT 
Villain. An opprobrious epithet, implying great moral 
delinquency, and equivalent to knave, rascal, or scoun
drel. The word is libelous. 
Villanis regis subtractis reducendis Iv�leyn�s riyj�s 
s�btrrekt�s riyd(y)uwsend�s/. In old English law, a writ 
that lay for the bringing back of the king's bondmen, 
that had been carried away by others out of his manors 
whereto they belonged. 
Villanum servitium Iv�leyn�m s�rvish(iy)�m/. In old 
English law, villein service. 
Villa regia Ivn� riyj(iy)�/. Lat. In Saxon law, a royal 
residence. 
Villein Ivibn/. In feudal law, a person attached to a 
manor, who was substantially in the condition of a slave, 
who performed the base and servile work upon the 
manor for the lord, and was, in most respects, a subject 
of property belonging to him. 
Villein in gross Ivn�n in grows/. In feudal law, a 
villein who was annexed to the person of the lord, and 
transferable by deed from one owner to another. 2 
Bl.Comm. 93. 
Villein regardant Ivibn r�gard�nt/. In feudal law, a 
villein annexed to the manor of land; a serf. 
Villein services Ivn�n s�rv�s�z/. In feudal law, base 
services, such as villeins performed. They were not, 
however, exclusively confined to villeins, since they 
might be performed by freemen, without impairing their 
free condition. 
Villein socage Ivibn sok�j/. In feudal and old English 
law, a species of tenure in which the services to be 
rendered were certain and determinate, but were of a 
base or servile nature; i.e., not suitable to a man of free 
and honorable rank. This was also called "privileged 
villeinage," to distinguish it from "pure villeinage," in 
which the services were not certain, but the tenant was 
obliged to do whatever he was commanded. 2 Bl.Comm. 
61. 
Villenage Ivn�n�j/. In feudal law, a servile kind of 
tenure belonging to lands or tenements, whereby the 
tenant was bound to do all such services as the lord 
commanded, or were fit for a villein to do. See Villein. 
Pure villenage. A base tenure, where a man holds upon 
te.rms of doing whatsoever is commanded of him, nor 
knows in the evening what is to be done in the morning, 
and is always bound to an uncertain service. 
Villenous judgment Ivn�n�s j�jm�nt/. A judgment 
which deprived one of his libera lex, whereby he was 
discredited and disabled as a juror or witness; forfeited 
his goods and chattels and lands for life; wasted the 
lands, razed the houses, rooted up the trees, and commit
ted his body to prison. It has become obsolete. 4 
Bl.Comm. 136. 
Vim vi repellere licet, modo fiat moderamine incul
patre tutelre, non ad sumendam vindictam, sed ad 
propulsandam injuriam Ivim vay r�pebriy lays�t, 
mowdow fay�t mod�reym�niy ink�lpeytiy t(y)uwtiyliy,

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VILLENOUS JUDGMENT 
non red s(y)uwmEmd�m vindikt�m, sed red 
prowp;}lsrend�m injuriy�m/. It is lawful to repel force 
by force, provided it be done with the moderation of 
blameless defense, not for the purpose of taking revenge, 
but to ward off injury. 
Vinagium Ivineyj(iy)�m/. A payment of a certain quan
tity of wine instead of rent for a vineyard. 
Vinculacion Ivinkuwlasyown/. In Spanish law, an en
tail. 
Vinculo Ivinkuwlow/. In Spanish law, the bond, chain, 
or tie of marriage. 
Vinculo matrimonii IviIJk(y)�low mretr�mowniyay I. 
See A vinculo matrimonii; Divorce. 
Vinculum juris IviIJk(y)�bm jur�s/. In the Roman law, 
an obligation is defined as a vinculum juris, i.e., "a bond 
of law," whereby one party becomes or is bound to 
another to do something according to law. 
Vindex Ivindeks/. Lat. In the civil law, a defender. 
Vindicare Ivind�keriy/. Lat. In the civil law, to claim, 
or challenge; to demand one's own; to assert a right in 
or to a thing; to assert or claim a property in a thing; to 
claim a thing as one's own. 
Vindicate. To clear of suspicion, blame, or doubt. 
Vindicatio Ivind�keysh(iy)ow/. Lat. In the civil law, 
the claiming a thing as one's own; the asserting of a 
right or title in or to a thing. 
Vindicatory parts of laws Ivind�btoriy parts �v loz/. 
The sanction of the laws, whereby it is signified what 
evil or penalty shall be incurred by such as commit any 
public wrongs, and transgress or neglect their duty. 
Vindicta Ivindikt�/. In Roman law, a rod or wand; and, 
from the use of that instrument in their course, various 
legal acts came to be distinguished by the term; e.g., one 
of the three ancient modes of manu
mission was by the vindicta; also the rod or wand 
intervened in the progress of the old action of vindicatio, 
whence the name of that action. 
Vindictive damages Ivindikt�v drem�j�z/. See Dam
ages. 
Vintner Ivintn�r/. One who sells wine. A covenant 
prohibiting the trade of a vintner includes a person 
selling wines not to be drunk on the premises. 
Viol. Fr. In French law, rape; barring. 
Violation. Injury; infringement; breach of right, duty 
or law; ravishment; seduction. The act of breaking, 
infringing, or transgressing the law. Rabon v. South 
Carolina State Highway Dept., 258 S.C. 154, 187 S.E.2d 
652,654. 
A classification used by the Model Penal Code for 
public welfare offenses. A violation is not a crime. 
M.P.C. § 1.04(5). 
Violence. Un just or unwarranted exercise of force, 
usually with the accompaniment of vehemence, outrage 
or fury. People v. McIlvain, 55 Cal.App.2d 322, 130 P.2d 
131, 134. Physical force unlawfully exercised; abuse of 
1570 
force; that force which is employed against common 
right, against the laws, and against public liberty. 
Anderson-Berney Bldg. Co. v. Lowry, Tex.Civ.App., 143 
S.W.2d 401, 403. The exertion of any physical force so 
as to injure, damage or abuse. See e.g. Assault. 
Violence in labor disputes is not limited to physical 
contact or injury, but may include picketing conducted 
with misleading signs, false statements, publicity, and 
veiled threats by words and acts. Esco Operating Corpo
ration v. Kaplan, 144 Misc. 646, 258 N.Y.S. 303. 
Violent. Moving, acting, or characterized, by physical 
force, especially by extreme and sudden or by unjust or 
improper force. Furious, vehement; as a violent storm 
or wind. A violent attack marked by, or due to, strong 
mental excitement. Vehement, passionate; as, violent 
speech. Violent reproaches produced or effected by 
force, not spontaneous or natural; as, a violent death. 
Displaying or proceeding from extreme or intense force; 
caused by unexpected unnatural causes. 
Violenta prresumptio aliquando est plena probatio 
Ivay�lensh(iy)� pr�z�m(p)sh(iy)ow rel�kwondow est pliyn� 
prowbeysh(iy)ow/. Violent presumption is sometimes 
full proof. 
Violent death. Death caused by violent external means, 
as distinguished from natural death as caused by disease 
or the wasting of the vital forces. Death is "violent" 
within accident policy if it results from external agency 
and is not in ordinary course of nature. See e.g. Murder. 
Violently. By the use of force; forcibly; with violence. 
The term is used in indictments for certain offenses. 
Violent offenses. Crimes characterized by extreme 
physical force such as murder, forcible rape, and assault 
and battery by means of a dangerous weapon. 
Viperina est expositio qure corrodit viscera textus 
Ivayp�rayn� est eksp�zish(iy)ow kwiy k�rowd�t vis�r� 
tekst�sl . It is a poisonous exposition which destroys the 
vitals of the text. 
Vir Iv�r/. Lat. A man, especially as marking the sex. 
In the Latin phrases and maxims of the old English law, 
this word generally means "husband," the expression vir 
et uxor corresponding to the law French baron et feme. 
Vires Ivayriyz/. Lat. (The plural of "vis.") Powers; 
forces; capabilities; natural powers; powers granted or 
limited. See Ultra (Ultra vires). 
Vires acquirit eundo Ivayriyz �kwayr�t iy�ndow/. It 
gains strength by continuance. 
Vir et uxor censentur in lege una persona Iv�r et 
�ksor s�nsent�r in liyjiy yuwn� p�rsown�/. Husband 
and wife are considered one person in law. 
Vir et uxor sunt quasi unica persona, quia caro et 
sanguis unus; res licet sit propria uxoris, vir tamen 
ejus custos, cum sit caput mulieris Iv�r ed �ksor s;}nt 
kweyzay yuwn�k� p�rsown�, kway� kerow et sreIJgw�s 
yuwn�s; riyz lays�t sit pr6wpriy� ;ks6r�s, v�r teym�n 
iyj�s k�st�s, k;}m sit krep�t myuwl(i)yir�sl. Man and 
wife are, as it were, one person, because only one flesh

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and blood; although the property may be the wife's, the 
husband is keeper of it, since he is the head of the wife. 
Virga /v;rg';J/. In old English law, a rod or staff; a rod 
or ensign of office. 
Virgata /v';Jrgeyt';J/. A quarter of an acre of land. It 
might also be used to express a quarter of a hide of land. 
Virgata regia /v';Jrgeyd';J riyj(iy)';J/. In old English law, 
the verge; the bounds of the king's household, within 
which the court of the steward had jurisdiction. 
Virgate /v;rg';Jt/. A yard-land. 
Virga terrre (or virgata terrre) Iv�rg';J tehriy IV';Jrgeyt';J 
tehriy /. In old English law, a yard-land; a measure of 
land of variable quantity, containing in some places 
twenty, in others twenty-four, in others thirty, and in 
others forty, acres. 
Virge, tenant by /ten';Jnt bay v�rj/. A species of copy
holder, who holds by the virge or rod. 
Virgo intacta /v;rgow intrekt';J/. Lat. A pure virgin. 
Viridario eligendo /vir';Jder(i)yow el�jendow /. A writ 
for choice of a verderer in the forest. 
Virilia /v�ril(i)y�/. The privy members of a man, to cut 
off which was felony by the common law, though the 
party consented to it. 
Vir militans deo non implicetur secularibus negotiis 
/v;r mil�trenz diyow non impl�siyt�r seky�ler�b�s n�g6w
shiy�s/. A man fighting for God must not be involved 
in secular business. 
Virtual representation, doctrine of. Under this doc
trine, where parties interested are numerous and the 
suit is for an object common to all of them, some of the 
body may maintain an action on behalf of themselves 
and of the others. Padway v. Pacific Mut. Life Ins. Co. 
of California, D.C.Wis., 42 F.Supp. 569, 576. Under 
current rules practice, such type action would proceed as 
a class action. See Class or representative action. 
Virtue of office. An act by virtue of office is one in 
which the act is within the authority of the officer but 
in doing it he exercises that authority improperly or 
abuses the confidence which the law imposes in him. 
Maryland Cas. Co. v. McCormack, Ky., 488 S.W.2d 347, 
349. See Color of law. 
Virtute cujus /v�rt(y)uwtiy k(y)uwj�s/. Lat. By virtue 
whereof. This was the clause in a pleading justifying an 
entry upon land, by which the party alleged that it was 
in virtue of an order from one entitled that he entered. 
Virtute officii /v�rt(y)uwtiy �fishiyay/. Lat. By virtue 
of his office. By the authority vested in him as the 
incumbent of the particular office. An officer acts "vir
tute officii" when he acts by the authority vested in him 
as the incumbent of the particular office. Aldridge v. 
Wooten, 68 Ga.App. 887, 24 S.E.2d 700, 701. Where acts 
done are within the authority of the officer, but in doing 
them he exercises that authority improperly, or abuses 
the confidence which the law reposes in him, whilst acts 
done "colore officii" are where they are of such a nature 
that his office gives him no authority to do them. State 
VIS IMPRESSA 
v. Roy, 41 N.M. 308, 68 P.2d 162, 165; Yuma County v. 
Wisener, 45 Ariz. 475, 46 P.2d 115, 118. 
Vis /vis/. Lat. Any kind of force, violence, or distur
bance relating to a man's person or his property. The 
plural is vires (q. v.). 
Visa /viyz�/. An official endorsement made out on a 
passport, denoting that it has been examined and that 
the bearer is permitted to proceed. A recognition by the 
country in which the holder of a passport desires to 
travel of that passport's validity. U.S. v. Vargas, D.C. 
N.Y., 380 F.Supp. 1162, 1168. A visa is generally re
quired for the admission of aliens into the United States. 
Cf. 8 U.S.C.A. §§ 1181, 1184. See also Alien; Passport. 
Vis ablativa /vis rebl�biyv�/. In the civil law, ablative 
force; force which is exerted in taking away a thing 
from another. 
Vis armata /vis armeyt�/. In the civil and old English 
law, armed force; force exerted by means of arms or 
weapons. 
Vis a vis /viyzaviy /. Face to face. One of two persons 
or things opposite or corresponding to each other. In 
relation to each other. 
Vis clandestina /vis klrend�stayn';Jl. In old English law, 
clandestine force; such as is used by night. 
Vis compulsiva /vis komp�lsayv�/. In the civil and old 
English law, compulsive force; that which is exerted to 
compel another to do an act against his will; force 
exerted by menaces or terror. 
Viscount /vaykawnt/. A decree of English nobility, 
next below that of earl. An old title of the sheriff. 
Vis divina Ivis d�vayn�/. In the civil law, divine or 
superhuman force; the act of God. 
Vise /viyzey /. See Visa. 
Vis expulsiva Ivis eksp�lsayv�/. In old English law, 
expulsive force; force used to expel another, or put him 
out of his possession. Bracton contrasts it with "vis 
simplex, " and divides it into expulsive force with arms, 
and expulsive force without arms. 
Vis exturbativa Ivis �kst�rb�tayv';JI. In the civil law, 
exturbative force; force used to thrust out another. 
Force used between two contending claimants of posses
sion, the one endeavoring to thrust out the other. 
Vis fluminis Ivis fl(y)uwm�n�s/. In the civil law, the 
force of a river; the force exerted by a stream or 
current; water-power. 
Visible. Perceptible, discernible, clear, distinct, evident, 
open, conspicuous. 
Visible means of support. Term used in vagrancy 
statutes to indicate that one was without any ostensible 
ability to support himself, though he is able bodied. 
Vis impressa Ivis impres';JI. The original act of force 
out of which an injury arises, as distinguished from "vis 
proxima," the proximate force, or immediate cause of 
the injury.

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VIS INERMIS 
Vis inermis Ivis in�rm;)s/. In old English law, unarmed 
force; the opposite of "vis armata." 
Vis in juriosa Ivis injuriyows;)/. In old English law, 
wrongful force; otherwise called "illicita" (unlawful). 
Vis inquietativa Ivis inkway;)t;)tayv;)/. In the civil law, 
disquieting force. Bracton defines it to be where one 
does not permit another to use his possession quietly 
and in peace. 
Visit. In international law, the right of visit or visita
tion is the right of a cruiser or war-ship to stop a vessel 
sailing under another flag on the high seas, and send an 
officer to such vessel to ascertain whether her nationali
ty is what it purports to be. It is exercisable only when 
suspicious circumstances attend the vessel to be visited; 
as when she is suspected of a piratical characte r. 
Visitation. Inspection; superintendence; direction; reg
ulation. Bank of America Nat. Trust & Savings Ass'n v. 
Douglas, 70 App.D.C. 221, 105 F.2d 100, 105. 
In family law, visitation refers to noncustodial par
ent's right of access to his or her child; while noncusto
dial parent is responsible for care of child during visits, 
visitation differs from custody because noncustodial par
ent and child do not live together as family unit. Wes
trate v. Westrate, App., 124 Wis.2d 244, 369 N.W.2d 165, 
168. See also Visitation rights. 
In England, the office of inquiring into and correcting 
irregularities of corporations. See also Visitor. 
Visitation books. In old English law, books compiled by 
the heralds, when progresses were solemnly and regular
ly made into every part of the kingdom, to inquire into 
the state of families, and to register such marriages and 
descents as were verified to them upon oath; they were 
allowed to be good evidence of pedigree. 
Visitation rights. In a marriage dissolution or custody 
action, permission granted by court to a noncustodial 
parent to visit child or children. May also refer to 
visitation rights extended to grandparents in a number 
of states. See also Visitation. 
Visitor. One who goes or comes to see a particular 
person or place. For "business visitor", see Business. 
In England, a person appointed to visit, inspect, in
quire into, and correct irregularities of corporations. 
Similar functions are performed by Boards of Visitors to 
Prisons. 
Visitor of manners. The regarder's office in the forest. 
Vis laica IVls l{�y;)k;)/. In old English law, lay force; an 
armed force used to hold possession of a church. 
Vis legibus est inimica IVls liyj;)b;)s est in;)mayk;)/. 
Violence is inimical to the laws. 
Vis licita Ivis lis;)t;)/. In old English law, lawful force. 
Vis major Ivis meyj;)r/. A greater or superior force; an 
irresistible force. A loss that results immediately from 
a natural cause without the intervention of man, and 
could not have been prevented by the exercise of pru
dence, diligence, and care. National Carbon Co. v. 
Bankers Mortg. Co. of Topeka, C.C.A.Kan., 77 F.2d 614, 
1572 
617. A natural and inevitable necessity, and one arising 
wholly above the control of human agencies, and which 
occurs independently of human action or neglect. In 
the civil law, this term is sometimes used as synon
ymous with "vis divina, " or the act of God. See Act of 
God. 
Visne Ivayniy/. L. Fr. The neighborhood; vicinage; 
venue. The district from which juries were drawn at 
common law. 
Vis perturbativa Ivis p;)rt�rb;)tayv;)/. In old English 
law, force used between parties contending for a posses
sion. 
Vis proxima Ivis proks;)m;)I . Immediate force. See Vis 
impressa. 
Vis simplex Ivis simpleks/. In old English law, simple 
or mere force. 
V.I.S.T.A. Volunteers in Service to America. 
Visus Ivayz;)s/. Lat. In old English practice, view; 
inspection, either of a place or person. 
Vital statistics. Public records kept by a state, city or 
other governmental subdivision, under a statutory provi
sion, of births, marriages, deaths, diseases, and the like. 
For admissibility of, see Fed.Evid.R. 803. See also Cen
sus. 
Vitiate. To impair; to make void or voidable; to cause 
to fail of force or effect. To destroy or annul, either 
entirely or in part, the legal efficacy and binding force of 
an act or instrument; as when it is said that fraud 
vitiates a contract. 
Vitiligate. To litigate cavilously, vexatiously, or from 
merely quarrelsome motives. 
Vitium clerici Ivish(iy);)m klehr;)say/. In old English 
law, the mistake of a clerk; a clerical error. 
Vitium clerici nocere non debet lvish(iy);)m klehr;)say 
n;)siriy non deb;)t/. A clerical error ought not to hurt. 
Vitium est quod fugi debet, nisi, rationem non inve
nias, mox legem sine ratione esse clames Ivish(iy);)m 
est kwod fyuwjay deb;)t, naysay, rreshiyown;)m non 
inviyn(i)y;)s, moks liyj;)m sayniy rreshiyowniy esiy kley
miyz/. It is a fault which ought to be avoided, that if 
you cannot discover the reason you should presently 
exclaim that the law is without reason. 
Vitium scriptoris Ivish(iy);)m skriptor;)s/. In old Eng
lish law, the fault or mistake of a writer or copyist; a 
clerical error. 
Vitreous Ivitriy;)s/. Consisting of or resembling glass in 
its important characteristics. 
Vitricus lvitr;)k;)s/. Lat. In' the civil law, a stepfather; 
a mother's second husband. 
Viva aqua Ivayv;) rekw;)/. Lat. In the civil law, living 
water; running water; that which issues from a spring 
or fountain. 
Viva pecunia Ivayv;) p;)k(y)uwn(i)y;)I . Lat. Cattle, 
which obtained this name from being received during

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the Saxon period as money upon most occasions, at 
certain regulated prices. 
Vivarium Iv;ver(i)y;m/. Lat. In the civil law, an in
closed place, where live wild animals are kept. 
Vivary Iviv;riy/. In English law, a place for keeping 
wild animals alive, including fishes; a fish pond, park, 
or warren. 
Viva voce Ivayv; vowsiy I. Lat. With the living voice; 
by word of mouth. As applied to the examination of 
witnesses, this phrase is equivalent to "orally." It is 
used in contradistinction to evidence on affidavits or 
depositions. As descriptive of a species of voting, it 
signifies voting by speech or outcry, as distinguished 
from voting by a written or printed ballot. 
Vivum vadium Ivayv;m veyd(i)y;m/. See Vadium. 
Vix ulla lex fieri potest qure omnibus commoda sit, 
sed si majori parti prospiciat, utilis est lviks �l; leks 
fay;ray powt;st kway omn;b�s kom�d� sit, sed say 
m�j oray partay pr�spish(iy)�t, yuwt�l;s est/. Scarcely 
any law can be made which is adapted to all, but, if it 
provide for the greater part, it is useful. 
Viz lviz/. A contraction for videlicet, to-wit, namely, 
that is to say. 
Vocabula artis Ivowkreby�l� art�s/. Lat. Words of art; 
technical terms. 
Vocabula artium explicanda sunt secundum def"mi-
tiones prudentum Ivowkreby�l� arsh(iy)�m 
ekspl�krend� s�nt s�k�nd�m der�nishiyowniyz 
pruwdent�m/. Terms of arts are to be explained accord
ing to the definitions of the learned or skilled [in such 
arts]. 
Vocare ad curiam Ivowkeriy red kyuriy�m/. In feudal 
law, to summon to court. 
Vocatio in jus Ivowkeysh(iy)ow in j�s/. Lat. A sum
moning to court. In the earlier practice of the Roman 
law (under the legis actiones), the creditor orally called 
upon his debtor to go with him before the prretor for the 
purpose of determining their controversy, saying, "In jus 
eamus; in jus te voco." This was called "vocatio in jus. " 
Vocation. One's regular calling or business; one's occu
pation or profession. The activity on which one spends 
major portion of his time and out of which he makes his 
living. Employers' Liability Assur. Corporation v. Acci
dent & Casualty Ins. Co. of Winterthur, Switzerland, 
C.C. A.Ohio, 134 F.2d 566, 568. See also Occupation; 
Profession. 
Vociferatio Ivows�f�reysh(iy)ow I. Lat. In old English 
law, outcry; hue and cry. 
Vociferous Ivowsif�r�s/. Making a loud outcry; clamor
ous; noisy. 
Voco Iv owkow/. Lat. In the civil and old English law, I 
call; I summon; I vouch. In jus voco te, I summon you 
to court; I summon you before the prretor. The formula 
by which a Roman action was anciently commenced. 
VOID 
Voice exemplars. Type of test in which one's voice is 
compared to the voice heard on some particular occa
sion. Used in trial of cases as type of scientific evidence. 
An order compelling a defendant in a criminal case to 
furnish a sample of his voice does not violate the privi
lege against self-incrimination. U. S. v. Dionisio, 410 
U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67. While voiceprint 
identification was formerly not admissible, the trend in 
recent years has been towards admissibility under re
stricted conditions. United States v. Baller, C.A.W.Va., 
519 F.2d 463. See Fed.Evid.R. 901. See also Spectro
graph; Voiceprint. 
Voice identification. In evidence, one may testify that 
he heard a person's voice if he is familiar with that 
voice. See Fed.Evid.R. 901(5). See also Spectrograph; 
Voiceprint. 
Voiceprint. An instrument known as a spectrograph 
produces "prints" of one's voice for use in comparing 
such readings with the actual voice of the person in
volved to determine whether such person uttered the 
material words. Used in trial of cases which require 
identification of voices. Com. v. Lykus, 367 Mass. 191, 
327 N.E.2d 671. See Spectrograph; Voice exemplars. 
Void. Null; ineffectual; nugatory; having no legal force 
or binding effect; unable, in law, to support the purpose 
for which it was intended. Hardison v. Gledhill, 72 
Ga.App. 432, 33 S.E.2d 921, 924. An instrument or 
transaction which is wholly ineffective, inoperative, and 
incapable of ratification and which thus has no force or 
effect so that nothing can cure it. In re Oliver, Bkrtcy. 
Minn., 38 B.R. 245, 248. 
There is this difference between the two words ��void" 
and "voidable": void in the strict sense means that an 
instrument or transaction is nugatory and ineffectual so 
that nothing can cure it; voidable exists when an imper
fection or defect can be cured by the act or confirmation 
of him who could take advantage of it. The term "void," 
however, as applicable to conveyances or other agree
ments, has not at all times been used with technical 
precision, nor restricted to its peculiar and limited 
sense, as contradisthiguished from "voidable"; it being 
frequently introduced, even by legal writers and jurists, 
when the purpose is nothing further than to indicate 
that a contract was invalid, and not binding in law. But 
the distinction between the terms "void" and "voidable," 
in their application to contracts, is often one of great 
practical importance; and, whenever entire technical 
accuracy is required, the term "void" can only be prop
erly applied to those contracts that are of no effect 
whatsoever, such as are a mere nullity, and incapable of 
confirmation or ratification. 
The word "void," in its strictest sense, means that 
which has no force and effect, is without legal efficacy, is 
incapable of being enforced by law, or has no legal or 
binding force, but frequently the word is used and con
strued as having the more liberal meaning of "voidable." 
The word "void" is used in statutes in the sense of 
utterly void so as to be incapable of ratification, and also 
in the sense of voidable and resort must be had to the 
rules of construction in many cases to determine in

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VOID 
which sense the Legislature intended to use it. An act 
or contract neither wrong in itself nor against public 
policy, which has been declared void by statute for the 
protection or benefit of a certain party, or class of 
parties, is voidable only. 
Compare Voidable. 
Void ab initio. A contract is null from the beginning if 
it seriously offends law or public policy in contrast to a 
contract which is merely voidable at the election of one 
of the parties to the contract. See also Void contract; 
Void marriage. 
Voidable. That which may be avoided, or declared void; 
not absolutely void, or void in itself. It imports a valid 
act which may be avoided rather than an invalid act 
which may be ratified. United States v. Price, D.C. lowa, 
514 F.Supp. 477, 480. See also Voidable contract. Com
pare Void. 
Voidable contract. A contract that is valid, but which 
may be legally voided at the option of one of the parties. 
One which is void as to wrongdoer but not void as to 
wronged party, unless he elects to so treat it. Depner v. 
Joseph Zukin Blouses, 13 Cal.App.2d 124, 56 P.2d 574, 
575. One which can be avoided (cancelled) by one party 
because right of rescission exists as a result of some 
defect or illegality (e.g., fraud or incompetence). See 
also Void contract. 
A voidable contract is one where one or more parties 
have the power, by a manifestation of election to do so, 
to avoid the legal relations created by the contract, or by 
ratification of the contract to extinguish the power of 
avoidance. Restatement, Second, Contracts § 7. 
Voidable judgment. One apparently valid, but in truth 
wanting in some material respect. City of Lufkin v. 
McVicker, Tex.Civ.App., 510 S.W.2d 141, 144. One ren
dered by a court having jurisdiction but which is irregu
larly and erroneously rendered. Easterline v. Bean, 121 
Tex. 327, 49 S.W.2d 427, 429. See also Void judgment. 
Voidable marriage. One which is valid (not void) when 
entered into and which remains valid until either party 
secures lawful court order dissolving the marital rela
tionship. Darling v. Darling, 44 Ohio App.2d 5, 335 
N.E.2d 708, 710, 73 O.O.2d 5. Major difference between 
"void marriage" and "voidable marriage" is that latter 
is treated as binding until its nullity is ascertained and 
declared by competent court, whereas former does not 
require such judgment because parties could not enter 
into valid marital relationship. Broadus v. Broadus, 
Ala.Civ.App., 361 So.2d 582, 584. See also Void marriage. 
Voidable preference. Under Bankruptcy Code, such 
exists where person while insolvent transfers property, 
the effect of which will be to enable one creditor to 
obtain greater percentage of his debt than other credi
tors of same class. A preference given to one creditor 
over another by a bankrupt, usually manifested by a 
payment to that creditor just prior to the bankruptcy 
declaration, that may be set aside by the trustee in 
bankruptcy. See Bankruptcy Code § 547. See also Pref
erence. 
1574 
Void contract. A contract that does not exist at law; a 
contract having no legal force or binding effect. Expres
sion denotes that the parties to the transaction have 
gone through the �orm of making a contract, but that 
none has been made in law because of lack of some 
essential element of a contract, and such contract cre
ates no legal rights and either party thereto may ignore 
it at his pleasure, in so far as it is executory. Griffin v. 
Smith, C.C.A.lnd., 101 F.2d 348, 350. See also Voidable 
contract. 
Void for vagueness doctrine. A law which is so ob
scure in its promulgation that a reasonable person could 
not determine from a reading what the law purports to 
command or prohibit is void as violative of due process. 
The doctrine means that criminal responsibility should 
not attach where one could not reasonably understand 
that his contemplated conduct is proscribed. U.S. v. 
National Dairy Products Corp., Mo., 83 S.Ct. 594, 598, 
372 U.S. 29, 91 L.Ed.2d 561. Also, the First Amendment 
requires special clarity so that protected expression will 
not be chilled or suppressed. 
Void judgment. One which has no legal force or effect, 
invalidity of which may be asserted by any person whose 
rights are affected at any time and at any place directly 
or collaterally. Reynolds v. Volunteer State Life Ins. 
Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which, 
from its inception is and forever continues to be abso
lutely null, without legal efficacy, ineffectual to bind 
parties or support a right, of no legal force and effect 
whatever, and incapable of confirmation, ratification, or 
enforcement in any manner or to any degree. Judg
ment is a "void judgment" if court that rendered judg
ment lacked jurisdiction of the subject matter, or of the 
parties, or acted in a manner inconsistent with due 
process. Klugh v. U.S., D.C.S.C., 620 F.Supp. 892, 901. 
See also Voidable judgment. 
Void marriage. One not good for any legal purpose, the 
invalidity of which may be maintained in any proceed
ing between any parties, while a "voidable marriage" is 
one where there is an imperfection which can be in
quired into only during the lives of both of the parties in 
a proceeding to obtain a judgment declaring it void. 
Such marriage is invalid from its inception, and parties 
thereto may simply separate without benefit of court 
order of divorce or annulment. Darling v. Darling, 44 
Ohio App.2d 5, 335 N.E.2d 708, 710, 73 O.O.2d 5. A 
"voidable marriage" is valid and not ipso facto void, 
until sentence of nullity is obtained; a "void marriage" 
is void ab initio. Minder v. Minder, 83 N.J.Super. 159, 
199 A.2d 69, 71. See Annulment. 
Void on its face. An instrument is void on its face when 
an inspection will reveal its defects and invalidity. 
Void process. One which fails in some material respect 
to comply with the requisite form of legal process. Unit
ed States v. Van Dusen, C.C.A.Minn., 78 F.2d 121, 124. 
Void transaction. One that has no force and effect and 
is incapable of legal enforcement. See Void; Void con
tract.

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1575 
Voir dire /vwar dir/. L. Fr. To speak the truth. This 
phrase denotes the preliminary examination which the 
court and attorneys make of prospective jurors to deter
mine their qualification and suitability to serve as ju
rors. Peremptory challenges or challenges for cause 
many result from such examination. See Challenge. 
Voiture /vwotyur/. Fr. Carriage; transportation by 
carriage. 
Volens /vowlEmz/. Lat. Willing. He is said to be 
willing who either expressly consents or tacitly makes 
no opposition. 
Volenti non fit in juria /vowlentay non fit injuriy;}/. 
The maxim "volenti non fit injuria" means that if one, 
knowing and comprehending the danger, voluntarily 
exposes himself to it, though not negligent in so doing, 
he is deemed to have assumed the risk and is precluded 
from a recovery for an injury resulting theref rom. 
Munson v. Bishop Clarkson Memorial Hospital, 186 Neb. 
778, 186 N.W.2d 492, 494. This is an affirmative de
fense that should be pleaded under Fed.R. Civil P. 8. 
Tyler v. Dowell, Inc., C.A.N.M., 274 F.2d 890. See also 
Assumption of risk. 
Volstead Act. A now repealed Federal law prohibiting 
the manufacture, sale, or transportation of liquor. The 
law was passed under the Eighteenth Amendment to the 
U.S. Constitution which was repealed by Twenty-First 
Amendment. 
Voluit, sed non dixit /vol(y)uw;}t, sed non diks;}t/. He 
willed, but he did not say. He may have intended so, 
but he did not say so. A maxim frequently used in the 
construction of wills; an answer to arguments based 
upon the supposed intention of a testator. 
Volumen /volyuwm;}n/. Lat. In the civil law, a vol
ume; so called from its form, being rolled up. 
Volumus /vol;}m;}s/. Lat. We will; it is our will. The 
first word of a clause in the royal writs of protection and 
letters patent. 
Voluntarily. Done by design or intention, intentional, 
proposed, intended, or not accidental. Intentionally and 
without coercion. Young v. Young, 148 Kan. 876, 84 
P.2d 916, 917. 
Voluntariness. The quality of being voluntary or free 
as opposed to being forced or given under duress, as a 
confession of one arrested for a crime. See also Volun
tary. 
Voluntarius dremon /vol;}nteriy;}s diym;}n/. A volun
tary madman. A term applied by Lord Coke to a 
drunkard, who has voluntarily contracted madness by 
intoxication. 4 Bl.Comm. 25. 
Voluntary. Unconstrained by interference; unimpelled 
by another's influence; spontaneous; acting of oneself. 
Coker v. State, 199 Ga. 20, 33 S.E.2d 171, 174. Done by 
design or intention. Proceeding from the free and unre
strained will of the person. Produced in or by an act of 
choice. Resulting from free choice, without compulsion 
or solicitation. The word, especially in statutes, often 
implies knowledge of essential facts. Without valuable 
VOLUNTAS 
consideration; gratuitous, as a voluntary conveyance. 
Also, having a merely nominal consideration; as, a 
voluntary deed. 
As to voluntary Answer; Assignment; Confession; 
Conveyance; Deposit; Dismissal; Escape; Indebtedness; 
Intoxication; Manslaughter; Nonsuit; Oath; Payment; Re
demption; Sale; Search; Settlement; Trust, and Waste, 
see those titles. For voluntary bankruptcy, see Ban krupt
cy proceedings. 
Voluntary abandonment. As statutory ground for di
vorce, exists if there is a final departure, without con
sent of other party, without sufficient reason and with
out intent to return. As used in adoption statute, the 
term "voluntarily abandoned" means a willful act or 
course of conduct such as would imply a conscious dis
regard or indifference to such child in respect to the 
parental obligation owed to the child. Elliott v. Mad
dox, Tex.Civ.App., 510 S.W.2d 105, 107. See also Aban
donment; Desertion. 
Voluntary bankruptcy. A bankruptcy proceeding that 
is initiated by the debtor. See Bankruptcy proceedings. 
Voluntary courtesy. A voluntary act of kindness. An 
act of kindness performed by one man towards another, 
of the free will and inclination of the doer, without any 
previous request or promise of reward made by him who 
is the object of the courtesy; from which the law will not 
imply a promise of remuneration. 
Voluntary discontinuance. Voluntary action on part 
of plaintiff, whereby his case is dismissed without deci
sion on merits. Ferber v. Brueckl, 322 Mo. 892, 17 
S.W.2d 524, 527. Fed.R. Civil P. 41(a). See Dismissal. 
Voluntary dismissal. See Dismissal. 
Voluntary exposure to unnecessary danger. An in
tentional act which reasonable and ordinary prudence 
would pronounce dangerous. Intentional exposure to 
unnecessary danger, implying a conscious knowledge of 
the danger. The voluntary doing of an act which is not 
necessary to be done, but which requires exposure to 
known danger to which one would not be exposed if 
unnecessary act is not done. The term implies a con
scious, intentional exposure, something of which one is 
conscious but willing to take the risk. See Assumption of 
risk. 
Voluntary ignorance. This exists where a party might, 
by taking reasonable pains, have acquired the necessary 
knowledge, but has neglected to do so. 
Voluntary jurisdiction. In old English law, a jurisdic
tion exercised by certain ecclesiastical courts, in matters 
where there is no opposition. 3 Bl.Comm. 66. The 
opposite of contentious jurisdiction (q.v .). 
Voluntary statement. A statement made that is free 
from duress, coercion or inducement. Metigoruk v. Mu
nicipality of Anchorage, Alaska App., 655 P.2d 1317, 
1318. 
Voluntas /v;}l;}ntres/. Lat. Properly, volition, purpose, 
or intention, or a design or the feeling or impulse which 
prompts the commission of an act. However, in old 
English law the term was often used to denote a will,

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VOLUNTAS 
that is, the last will and testament of a decedent, more 
properly called testamentum. 
Voluntas donatoris in charta doni sui manifeste 
expressa observetur /v;)l:}ntres down;)tor;)s in kart;) 
downay s(y)uway mren;)festiy ;)kspresiy obs;)rviyt;)r/. 
The will of the donor manifestly expressed in his deed of 
gift is to be observed. 
Voluntas est justa sententia de eo quod quis post 
mortem suam fieri velit /v;)l:}ntres est j:}st;) 
sentensh(iy);) diy iyow kwod kwis powst mort;)m 
s(y)uw;)m fay;)ray vel;)t/. A will is an exact opinion or 
determination concerning that which each one wishes to 
be done after his death. 
Voluntas et propositum distinguunt maleficia 
/v;)l:}ntres et pr;)poz;)t;)m distiIJgw;)nt mrel;)fish(iy);)/. The 
will and the proposed end distinguish crimes. 
Voluntas facit quod in testamento scriptum valeat 
/v;)l:}ntres feys;)t kwod in test;)mentow skript;)m v,Hiy;)t/. 
It is intention which gives effect to the wording of a will. 
Voluntas in delictis, non exitus spectatur /v;)l:}ntres in 
d;)likt;)s, non egz;)t;)s spekteyt;)r /. In crimes, the will, 
and not the consequence, is looked to. 
Voluntas reputatur pro facto /v;)l:}ntres repy;)teyt;)r 
prow frektow /. The intention is to be taken for the 
deed. 
Voluntas testatoris est ambulatoria usque ad extre
mum vita! exitum /v;)l:}ntres test;)tor;)s est 
remby;)l;)toriy;) :}skwiy red ;)kstriym;)m vaytiy egz;)t;)m/. 
The will of a testator is ambulatory until the latest 
moment of life. 
Voluntas testatoris habet interpretationem latam et 
benignam /v;)l:}ntres test;)tor;)s heyb;)t int�rpr;)teyshiyo
wn;)m leyt;)m et b;)nign;)m/. The intention of a testator 
has a broad and benignant interpretation. 
Voluntas ultima testatoris est perimplenda secun
dum veram intentionem suam /v;)l:}ntres :}It;)m;) 
test;)tor;)s est p�rimplend;) s;)k:}nd;)m vir;)m 
intenshiyown;)m s(y)uw;)m/. The last will of the testa
tor is to be fulfilled according to his true intention. 
Volunteer. A person who gives his services without any 
express or implied promise of remuneration. One who 
intrudes himself into a matter which does not concern 
him, or one who pays the debt of another without 
request, when he is not legally or morally bound to do 
so, and when he has no interest to protect in making 
such payment. A person who pays the debt of another 
without a request, when not legally or morally bound to 
do so and not in the protection of his own interest. 
Estate of Bends, Mo.App., 589 S.W.2d 330, 332. 
Conveyancing. One who holds a title under a voluntary 
conveyance, i.e., one made without consideration,. good 
or valuable, to support it. 
Law of master and servant. The term "Volunteer" 
includes one who, without the assent of the master and 
without justification arising from a legitimate personal 
1576 
interest, unnecessarily assists a servant in the perform
ance of the master's business. 
Military law. One who freely and voluntarily offers 
himself for service in the army or navy; as distin
guished from one who is compelled to serve by draft or 
conscription, and also from one entered by enlistment in 
the standing army. 
Vote. Suffrage; the expression of one's will, preference, 
or choice, formally manifested by a member of a legisla
tive or deliberative body, or of a constituency or a body 
of qualified electors, in regard to the decision to be made 
by the body as a whole upon any proposed measure or 
proceeding or in passing laws, rules or regulations, or 
the selection of an officer or representative. The aggre
gate of the expressions of will or choice, as manifested 
by individuals, is called the "vote of the body." Sawyer 
Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 348. 
See also Absentee voting; Apportionment; Ballot; Can
vass; Casting vote; Cumulative voting; Fifteenth Amend
ment; Franchise; Gerrymander; Majority vote; Ni neteenth 
Amendment; Noncumulative voting; Twenty-Fourth 
Amendment; Twenty-Sixth Amendment; Twenty-Third 
Amendment; Voting Rights Act. 
Voter. The word has two meanings-a person who per
forms act of voting, and a person who has the qualifica
tions entitling him to vote. Its meaning depends on the 
connections in which it is used, and is not always equiv
alent to electors. In a limited sense a voter is a person 
having the legal right to vote, sometimes called a legal 
voter. See Legal voter. 
Voting by ballot. The term is used to distinguish open 
voting from secret voting. The privilege of secrecy is of 
the essence of "voting by ballot." See Ballot. 
Voting group. A term defined in the Revised Model 
Business Corporation Act (§ 1.40(26)) to describe the 
right of shares of different classes to vote separately at 
shareholders meetings on fundamental corporate 
changes that adversely affect the rights or privileges of 
that class. The scope of the right to vote by voting 
groups is defined by statute. The right is of particular 
value to classes of shares with limited or no voting 
rights under the articles of incorporation. Most older 
state statutes use the terms "class voting" or "voting by 
class" to refer essentially to the same concept. See also 
Voting trust. 
Voting Rights Act. Federal law which guarantees the 
right of citizens to vote without discrimination based on 
race, color or previous condition of servitude. The At
torney General is authorized to file proper proceedings 
for preventive relief to protect this right. 42 U.S.C.A. 
§ 1971 et seq. See City of Rome v. United States, 446 
U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119. See also PolI
tax. 
Voting stock. In corporations, that type of stock which 
gives the holder the right to vote for directors and other 
matters in contrast to non-voting stock which simply 
entitles the holder to dividends, if any. Common stock 
is normally voting stock. See also Stock.

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1577 
Voting stock rights. The stockholder's right to vote his 
stock in the affairs of his company. Most common 
shares have one vote each. Preferred stock usually has 
the right to vote when preferred dividends are in default 
for a specified period. The right to vote may be delegat
ed by the stockholder to another person. See also Cumu
lative voting; Noncumu lative voting; Voting group; Voting 
stock. 
Voting tax. See Poll-tax. 
Voting trust. The transfer of title by stockholders of 
shares of a corporation to a trustee who is authorized to 
vote the shares on their behalf. One created by an 
agreement between a group of the stockholders of a 
corporation and the trustee, or by a group of identical 
agreements between individual stockholders and a com
mon trustee, whereby it is provided that for a term of 
years, or for a period contingent upon a certain event, or 
until the agreement is terminated, control over the 
stock owned by such stockholders, either for certain 
purposes or for all, shall be lodged in the trustee, with or 
without a reservation to the owner or persons designat
ed by them of the power to direct how such control shall 
be used. A device whereby two or more persons, owning 
stock with voting powers, divorce voting rights thereof 
from ownership, retaining to all intents and purposes 
the latter in themselves and transferring the former to 
trustees in whom voting rights of all depositors in the 
trust are pooled. Jackson v. Jackson, 178 A.2d 893, 420 
A.2d 893, 895. 
Agreement accumulating several owners' stock in 
hands of one or more persons in trust for voting pur
poses in order to control corporate business and affairs. 
It differs from proxy or reciprocal proxy in that it does 
not make either party the other's agent. 
See also Voting group; Voting trust certificates. 
Voting trust certificates. Certificates issued by voting 
trustees to the beneficial holders of shares held by the 
voting trust. Such certificates may be as readily trans
ferable as the underlying shares, carrying with them all 
the incidents of ownership of the underlying shares 
except the power to vote. 
Votum /vowt':Jm/. Lat. A vow or promise. Dies voto
rum, the wedding day. 
Vouch /vawch /. To call upon; to call in to warranty; to 
call upon the grantor or warrantor to defend the title to 
an estate; to call upon witness to give warranty of title. 
To substantiate with evidence; to verify. 
To give personal assurance or serve as a guarantee. 
To call upon, rely on, or quote as an authority. Thus, 
formerly, to vouch a case or report was to quote it as an 
authority. 
See also Impleader; Thi rd-party practice; Vouching-in. 
Vouchee Ivawchiy I. In common recoveries, the person 
who is called to warrant or defend the title is called the 
"vouchee ." The person who is vouched to warranty. In 
this fictitious proceeding the crier of the court usually 
performs the office of a common vouchee. 2 Bl.Comm. 
358. 
VOYAGE CHARTER 
Voucher /vawch':Jr/. A receipt, acquittance, or release, 
which may serve as evidence of payment or discharge of 
a debt, or to certify the correctness of accounts. An 
account-book containing the acquittances or receipts 
showing the accountant's discharge of his obligations. 
When used in connection with disbursement of money, 
is a written or printed instrument in the nature of an 
account, receipt, or acquittance, that shows on its face 
the fact, authority, and purpose of disbursement. 
A document that serves to recognize a liability and 
authorize the disbursement of cash. Sometimes used to 
refer to the written evidence documenting an accounting 
entry, as in the term journal voucher. 
In old English law, the person on whom the tenant 
calls to defend the title to the land, because he warrant
ed the title to him at the time of the original purchase. 
Voucher to warranty. The calling one who has war
ranted lands, by the party warranted, to come and 
defend the suit for him. 
Vouching-in. Common law procedural device whereby 
person against whom action is brought may give notice 
of suit to third party who is liable over to him with 
respect to matter sued upon, and third party thereafter 
will be bound by decision in appropriate circumstances. 
Lester Bldg. Associates, Inc. v. Davidson, Del.Ch., 514 
A.2d 1100, 1102. Though largely supplanted by third
party practice, vouching-in remains marginally viable 
under the federal rules. Humble Oil & Refining Co. v. 
Philadelphia Ship Maintenance Co., C.A.Pa., 444 F.2d 
727, 735. See Impleader; Intervention; Third-party prac
tice. 
In commercial law, inviting a person who is liable 
over to a defendant in a lawsuit to intervene in the suit 
and defend so that, if the invitation is denied and the 
defendant later sues the person invited, the latter is 
bound by any determination of fact common to the two 
litigations. See, e.g., U.C.C. §§ 2-607, 3-803. 
Vox emissa volat; litera scripta manet /voks ':Jmis':J 
vowl':Jt; lit':Jr':J skript':J mren':JtI. The spoken word flies; 
the written letter remains. 
Voyage. In maritime law, the passing of a vessel by sea 
from one place, port, or country to another. The term is 
held to include the enterprise entered upon, and not 
merely the route. 
Foreign voyage. A voyage to some port or place within 
the territory of a foreign nation. The terminus of a 
voyage determines its character. If it be within the 
limits of a foreign jurisdiction, it is a foreign voyage, and 
not otherwise. 
Voyage charter. The document in admiralty which sets 
forth the arrangements and contractual engagements 
entered into between the charterer and the owner of the 
ship. Under "voyage charte r," ship is engaged to carry 
full cargo on specific voyage, and ship is manned, con
trolled and navigated by owner. President of India By 
and Through Director of India Supply Mission v. West 
Coast S. S. Co., D.C.Or., 213 F.Supp. 352, 359. 
Voyage policy. See Policy of insurance.

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VOYEURISM 
Voyeurism. The condition of one who derives sexual 
satisfaction from observing the sexual organs or acts of 
others, generally from a secret vantage point. 
V s. An abbreviation for versus (against), constantly used 
in legal proceedings, and especially in entitling cases. 
Vulgar /v�lgar/. Lack of cultivation or refinement. 
Vulgaris opinio est duplex, viz., orta inter graves et 
discretos, qure multum veritatis habet, et opinio orta 
inter leves et vulgares homines absque specie veri
tatis /v�lgeras apin(i)yow est d(y)uwpleks, vadiylasat 6rta 
intar greyviyz et daskriytows, kwiy m�ltam vehrateytas 
heybat, et apin(i)yow 6rta intar liyviyz et v�lgeriyz 
h6maniyz rebskwiy spiyshiyiy vehrateytas/. Common 
opinion is of two kinds, viz., that which arises among 
1578 
grave and discreet men, which has much truth in it, and 
that which arises among light and common men, with
out any appearance of truth. 
Vulgaris purgatio /v�lgeras pargeysh(iy)ow/. Lat. In 
old English law, common purgation; a name given to 
the trial by ordeal, to distinguish it from the canonical 
purgation, which was by the oath of the party. 4 
Bl.Comm. 342. 
Vulgo concepti /v�lgow kanseptay/. Lat. In the civil 
law, spurious children; bastards. 
Vulgo quresiti /v�lgow kwazliytay/. Lat. In the civil 
law, spurious children; literally, gotten from the people; 
the offspring of promiscuous cohabitation, who are con
sidered as having no father.

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w
W. As an abbreviation, this letter frequently stands for
"William" (king of England), "Westminster," "west," or
"western."
Wacreour. L. Fr. A vagabond, or vagrant.
Wadia /weyd(i)y;}/. A pledge. See Vadium; Fides facta.
Waftors /w�Ht;}rz/. Conductors of vessels at sea.
Waga /wey(g);}/. In old English law, a weight; a mea
sure of cheese, salt, wool, etc., containing two hundred
and fifty-six pounds avoirdupois.
Wage. In old English practice, to give security for the
performance of a thing. See also Wages.
Wage and hour laws. General term describing federal
and state laws governing the maximum hours which
may be worked and the minimum wage to be paid. In
particular, the federal law known as Fair Labor Stan
dards Act of 1938 which regulates wages, hours and
other conditions of labor. 29 U.S.C.A. § 201 et seq. See
also Eight hour laws; Fair Labor Standards Act; Walsh
Healey Act.
Wage and price controls. A system of government
mandated maximum prices that can be charged for
different goods and services, and maximum wages that
can be paid to different workers in different jobs.
Wage assignments. The transfer or assignment in ad
vance of one's wages generally in connection with a debt
or judgment. Such assignments are governed by stat
utes in most states. See also Assignment (Assignment
for benefit of creditors).
Wage earner's plan. A type of partial bankruptcy in
which a person keeps his or her property and pays off a
court-established proportion of debt over a period of
time and under court supervision. See Bankruptcy
Code Ch. 13, "Adjustment of Debts of An Individual
With Regular Income". See Ban kruptcy proceedings.
Wage garnishment. See Garnishment.
Wager. A contract by which two or more parties agree
that a certain sum of money or other thing shall be paid
or delivered to one of them or that they shall gain or
lose on the happening of an uncertain event or upon the
ascertainment of a fact in dispute, where the parties
have no interest in the event except that arising from
the possibility of such gain or loss. The word "wager
ing" is practically synonymous with the words betting
and gambling, and the terms are so used in common
736, 738. See also Bet; Bookmaking; Gambling; Pari-mu
tuel betting.
Wagering contract. One in which the parties stipulate
that they shall gain or lose, upon the happening of an
uncertain event, in which they have no interest except
that arising from the possibility of such gain or loss.
See also Wager.
Wager of battel. The trial by wager of battel was a
species of trial introduced into England, among other
Norman customs, by William the Conqueror, in which
the person accused fought with his accuser, under the
apprehension that Heaven would give the victory to him
who was in the right. 3 Bl.Comm. 337. It was abol
ished by St. 59 Geo. III, c. 46.
Wager of law. In old English practice, the giving of
gage or sureties by a defendant in an action of debt that
at a certain day assigned he would make his law; that
is, would take an oath in open court that he did not owe
the debt, and at the same time bring with him eleven
neighbors (called "compurgators"), who should avow
upon their oaths that they believed in their consciences
that he said the truth. See Compurgator.
Wager policy. See Policy of insurance.
Wages. A compensation given to a hired person for his
or her services. Compensation of employees based on
time worked or output of production.
Every form of remuneration payable for a given peri
od to an individual for personal services, including sala
ries, commissions, vacation pay, dismissal wages, bonus
es and reasonable value of board, rent, housing, lodging,
payments in kind, tips, and any other similar advantage
received from the individual's employer or directly with
respect to work for him. Ernst v. Industrial Commis
sion, 246 Wis. 205, 16 N.W.2d 867. Term should be
broadly defined and includes not only periodic monetary
earnings but all compensation for services rendered
without regard to manner in which such compensation
is computed. Ware v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 24 Cal.App.3d 35, 100 Cal.Rptr. 791, 797.
Real wages. Money wages divided by a price index.
Real wages are different from money or nominal wages
because they represent the true purchasing power of the
dollars paid to workers. See Consumer Price Index.
See also Compensation; Current wages; Front wages;
Minimum wage; Salary; Tip.
parlance and in statutory and constitutional enact- Wagner Act. A Federal law, passed in 1935, that estab
ments. McDonald v. Bryant, 238 Ark. 338, 381 S.W.2d lished most basic union rights. It prohibited several
1579

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WAGNER ACT 
employer actions (such as attempting to force employees 
to stay out of a union) and labeled these actions "unfair 
labor practices." It also set up the National Labor 
Relations Board to help enforce the new labor laws. 29 
V.S.C.A. § 151 et seq. 
Wagonage /wreg;m;}j/. Money paid for carriage in a 
wagon. 
Wagonway. That part of a street ordinarily used for the 
passage of vehicles within the curb lines. Delaware, L. 
& W. R. Co. v. Chiara, C.C.A.N.J., 95 F.2d 663, 666. 
Waif /weyf/. Waifs are goods found, but claimed by 
nobody; that of which every one waives the claim. 
Also, goods stolen and waived, or thrown away by the 
thief in his flight, for fear of being apprehended. Waifs 
are to be distinguished from bona fugitiva, which are 
the goods of the felon himself, which he abandons in his 
flight from justice. 
Wainable /weyn;}b;}l/. In old records, that which may 
be plowed or manured; tillable. 
Wainage /weyn;}j/. In old English law, the team and 
instruments of husbandry belonging to a countryman, 
and especially to a villein who was required to perform 
agricultural services. 
Wainagium /weyneyj(iy);}m/. What is necessary to the 
farmer for the cultivation of his land. 
Wait and see doctrine. This doctrine is a rule which 
permits consideraton of events occurring after inception 
of the instruments which are relevant to the vesting of a 
future interest, so that if the contingency on which the 
interest is limited actually occurs within the period of 
the perpetuities rule, the interest is valid. Three Rivers 
Rock Co. v. Reed Crushed Stone Co., Inc., Ky., 530 
S.W.2d 202, 206. In determining whether a contingent 
interest violates the Rule Against Perpetuities, many 
states have enacted laws which permit the court to look 
at the condition when the contingency occurs and not, as 
the Rule prescribes, at the creation of the interest. In 
some states, the doctrine is called the second look doc
trine. 
Waiting clerks. In old English law, officers whose duty 
it formerly was to wait in attendance upon the court of 
chancery. The office was abolished in 1842 by St. 5 & 6 
Vict., c. 103. 
Waiting period. Time period that must expire before 
some legal right or remedy can be undertaken or en
forced. The period during which an insurance policy is 
not in effect or for which nothing will be paid on the 
policy. For example, if there is a waiting period of 30 
days under a particular disability policy, the insured 
will have to be disabled for 30 days before a payment is 
made for loss of earnings. 
In labor law, a period following a notice of intention to 
strike during which a strike may not lawfully take 
place. See 29 V.S.C.A. § 158(d). See also Cooling off 
period. 
1580 
In securities law, the period following registration of a 
security with Securities and Exchange Commission dur
ing which the security may not be sold to the public. 
Waive, v. To abandon, throw away, renounce, repudiate, 
or surrender a claim, a privilege, a right, or the opportu
nity to take advantage of some defect, irregularity, or 
wrong. To give up right or claim voluntarily. 
A person is said to waive a benefit when he renounces 
or disclaims it, and he is said to waive a tort or injury 
when he abandons the remedy which the law gives him 
for it. 
In order for one to "waive" a right, he must do it 
knowingly and be possessed of the facts. Barnhill v. 
Rubin, D.C.Tex., 46 F.supp. 963, 966. 
Waive, n. In old English law, a woman outlawed. The 
term is, as it were, the feminine of "outlaw," the latter 
being always applied to a man; "waive," to a woman. 
Waiver. The intentional or voluntary relinquishment of 
a known right, or such conduct as warrants an inference 
of the relinquishment of such right, or when one dis
penses with the performance of something he is entitled 
to exact or when one in possession of any right, whether 
conferred by law or by contract, with full knowledge of 
the material facts, does or forbears to do something the 
doing of which or the failure of forbearance to do which 
is inconsistent with the right, or his intention to rely 
upon it. The renunciation, repudiation, abandonment, 
or surrender of some claim, right, privilege, or of the 
opportunity to take advantage of some defect, irregulari
ty, or wrong. An express or implied relinquishment of a 
legal right. A doctrine resting upon an equitable princi
ple, which courts of law will recognize. Atlas Life Ins. 
Co. v. Schrimsher, 179 Oklo 643, 66 P.2d 944, 948. 
Waiver is essentially unilateral, resulting as legal 
consequence from some act or conduct of party against 
whom it operates, and no act of party in whose favor it 
is made is necessary to complete it. Coleman Produc
tion Credit Ass'n v. Mahan, Tex.Civ.App., 168 S.W.2d 
903, 904. And may be shown by acts and conduct and 
sometimes by nonaction. Concrete Engineering Co. v. 
Grande Bldg. Co., 230 Mo.App. 443, 86 S.W.2d 595, 608. 
The term is often used in the context of waiving one's 
right to counsel (for example, Miranda warning) or 
waiving certain steps in the criminal justice process (for 
example, the preliminary hearing). Essential to waiver 
is the voluntary consent of the individual. See e.g. 
Fed.R.Crim.P. 44(a). 
Terms "estoppel" and "waiver" are not synonymous; 
"waiver" means the voluntary, intentional relinquish
ment of a known right, and "estoppel" rests upon princi
ple that, where anyone has done an act, or made a 
statement, which would be a fraud on his part to contro
vert or impair, because other party has acted upon it in 
belief that what was done or said was true, conscience 
and honest dealing require that he not be permitted to 
repudiate his act or gainsay his statement. Peloso v. 
Hartford Fire Ins. Co., 102 N.J. Super. 357, 246 A.2d 52, 
58. 
See also Abandonment; Estoppel; Forfeiture.

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1581 
Express waiver. The voluntary, intentional relinquish
ment of a known right. 
Implied waiver. A waiver is implied where one party 
has pursued such a course of conduct with reference to 
the other party as to evidence an intention to waive his 
rights or the advantage to which he may be entitled, or 
where the conduct pursued is inconsistent with any 
other honest intention than an intention of such waiver, 
provided that the other party concerned has been in
duced by such conduct to act upon the belief that there 
has been a waiver, and has incurred trouble or expense 
thereby. To make out a case of implied "waiver" of a 
legal right, there must be a clear, unequivocal and 
decisive act of the party showing such purpose, or acts 
amounting to an estoppel on his part. Rosenthal v. New 
York Life Ins. Co., C.C.A.Mo., 99 F.2d 578, 579. See also 
Estoppel. 
Insurance law. Substance of doctrine of "waiver" in 
insurance law is that if insurer, with knowledge of facts 
which would bar existing primary liability, recognizes 
such primary liability by treating policy as in force, it 
will not thereafter be allowed to plead such facts to 
avoid its primary liability. 
Lien waiver. See that title. 
Waiver by election of remedies, doctrine of. Doctrine 
applies if there exist two or more coexisting remedies 
between which there is right of election, inconsistency 
as to such available remedies, and actual bringing of 
action or doing some other decisive act, with knowledge 
of facts, whereby party electing indicates his choice 
between such inconsistent remedies. Hertz v. Mills, 
D.C.Md., 10 F.Supp. 979, 981. 
Waiver of claims and defenses. A term in an instru
ment or other contract whereby the maker, drawer or 
other obligor explicitly agrees not to assert against an 
assignee of the contract any claim or defense the obligor 
has against the assignor. 
Waiver of exemption. A clause inserted in a note, bond, 
lease, etc., expressly waiving the benefit of the laws 
exempting limited amounts of personal property from 
levy and sale on judicial process, so far as concerns the 
enforceme!1t of the particular debt or obligation. 
Waiver of immunity. A means authorized by statutes by 
which a witness, in advance of giving testimony or 
producing evidence, may renounce the fundamental 
right guaranteed to him by constitutions, that no person 
shall be compelled in any criminal case to be a witness 
against himself. In re Grae, 282 N.Y. 428, 26 N.E.2d 
963, 966. See Immunity. 
Waiver of premium clause. Provision in insurance poli
cy providing for waiver of premium payments upon 
disability of insured. Commonly such waiver only takes 
effect after a certain time period of disability; e.g. six 
months. 
Waiver of protest. An agreement by the indorser of a 
note or bill to be bound in his character of indorser 
without the formality of a protest in case of non-pay
ment, or, in the case of paper which cannot or is not 
WANDER 
required to be protested, dispensing with the necessity of 
a demand and notice. 
Waiver of tort. The election, by an injured party, for 
purposes of redress, to treat the facts as establishing an 
implied contract, which he may enforce, instead of an 
injury by fraud or wrong, for the committing of which 
he may demand damages, compensatory or exemplary. 
Walapauz. In old Lombardic law, the disguising the 
head or face, with the intent of committing a theft. 
Walensis /w�l€m(t)s�s/. In old English law, a Welshman. 
Waleschery /welsh(�)riy/. The being a Welshman. 
Waliscus /w�lisk�s/. In Saxon law, a servant, or any 
ministerial officer. 
Walkers. Foresters who have the care of a certain space 
of ground assigned to them. 
Walk out. An organized withdrawal of employees from 
their place of employment because of a labor dispute. 
See also Strike. 
Wall. An erection of stone, brick, or other material, 
raised to some height, and intended for purposes of 
privacy, security or inclosure. In law, this term occurs 
in such compounds as "ancient wall," "party-wall," "di
vision-wall," etc. See also Spite fence. 
Common wall. A party wall; one which has been built 
at the common expense of the two owners whose proper
ties are contiguous, or a wall built by one party in which 
the other has acquired a common right. 
Wallia /w6l(i)y�/. In old English law, a wall; a sea-wall; 
a mound, bank, or wall erected in marshy districts as a 
protection against the sea. 
Walsh-Healey Act. Federal Act (1936) which provides 
that government contractors should pay not less than 
the prevailing minimum wage, observe the eight-hour 
day and the forty-hour week, employ no convict labor 
and no female under 18 years of age or male under 16 
years of age, and allow no hazardous or unsanitary 
working conditions in their plants. 41 U.S.C.A. §§ 35-
45. 
Wampum /w6mp�m/. Unlike France, Britain under
took no coinage for the use of her American colonies. 
The earliest medium of exchange for the New England 
settlements was wampum ordered by The General Court 
of Massachusetts in 1637. The court ordered that 
"wampampege should passe at 6 a penny for any sum 
under 12d." Wampum generally consisted of shells, 
coon pelts and bullets and was offered in lieu of coins, 
which were almost non-existent. Although wampum 
served the purpose for average daily transactions, great 
confusion was experienced where larger sums were in
volved. With England ignoring the colonists' need for a 
standard medium of exchange, the General Court in 
1652 ordered the first metallic currency for the English 
Americans. 
Wander. To ramble here and there without any certain 
course. In its broad sense, "wander" means to ramble 
without a definite purpose or objective, roam, rove, or

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WANDER 
stray, and to go aimlessly, indirectly or casually. People 
v. Weger, 251 C.A.2d 584, 59 Cal.Rptr. 661, 667. See 
Transient. 
Wanlass /w6nl�s/. An ancient customary tenure of 
lands; i.e., to drive deer to a stand that the lord may 
have a shot. 
Wantage. In marine insurance, ullage; deficiency in the 
contents of a cask or vessel caused by leaking. 
Want of consideration. In the general law of contracts, 
this term means a total lack of any valid consideration 
for a contract, while "failure of consideration" is the 
neglect, refusal or failure of one of the parties to per
form or furnish the consideration agreed on. Holm v. 
Woodworth, Fla.App., 271 So.2d 167, 169. See also Fail
ure of consideration. 
Want of jurisdiction. Lack of jurisdiction over person 
or subject matter. A lack of authority to exercise in a 
particular manner a power which board or tribunal has; 
the doing of something in excess of authority possessed. 
Evans v. Superior Court in and for City and County of 
San Francisco, 14 Cal.2d 563, 96 P.2d 107, 116. See also 
Lack of jurisdiction. 
Want of repair. As to highways, anything in the state 
or condition of the highway which renders it unsafe or 
inconvenient for ordinary travel. Adams v. Town of 
Bolton, Mass., 297 Mass. 459, 9 N.E.2d 562, 565. 
Wanton. Reckless, heedless, malicious; characterized by 
extreme recklessness or foolhardiness; recklessly dis
regardful of the rights or safety of others or of conse
quences. In re Wegner, C.C.A.Ill., 88 F.2d 899, 902. 
Means undisciplined, unruly, marked by arrogant reck
lessness of justice, feelings of others, or the like; willful 
and malicious. Lubbock Bail Bond v. Joshua, Tex.Civ. 
App., 416 S.W.2d 523, 525. In its ordinarily accepted 
sense connotes perverseness exhibited by deliberate and 
uncalled for conduct, recklessness, disregardful of rights 
and an unjustifiable course of action. Botto v. Fisches
ser, 174 Ohio St. 322, 189 N.E.2d 127, 130, 22 O.O.2d 
380. See also Reckless; Wanton act; Wantonness. 
Wanton act. One done in malicious or reckless dis
regard of the rights of others, evincing a reckless indif
ference to consequences to the life, or limb, or health, or 
reputation or property rights of another, and is more 
than negligence, more than gross negligence, and is such 
conduct as indicates a reckless disregard of the just 
rights or safety of others or of the consequences of 
action, equivalent in its results to wilful misconduct. 
Lustig v. U.M.C. Industries, Mo.App., 637 S.W.2d 55, 58. 
Wanton acts and omissions. Those of such character 
or done in such manner or under such circumstances as 
to indicate that a person of ordinary intelligence actuat
ed by normal and natural concern for the welfare and 
safety of his fellowmen who might be affected by them 
could not be guilty of them unless wholly indifferent to 
their probable injurious effect or consequences. Pupke 
v. Pupke, 102 Colo. 337, 79 P.2d 290, 292. See also 
Wanton act. 
1582 
Wanton and reckless misconduct. Occurs when a 
person, with no intent to cause har I�, intentionally 
performs an act so unreasonable and dangerous that he 
knows, or should know, that it is highly probable that 
harm will result. Donnelly v. Southern Pac. Co., 18 
Cal.2d 863, 118 P.2d 465, 469, 470. As used in punitive 
damages statute, consists of conduct that creates a sub
stantial risk of harm to another and is purposely per
formed with an awareness of the risk and disregard of 
the consequences. Palmer v. A.H. Robins Co., Inc., 
Colo., 684 P.2d 187, 214. See also Wanton misconduct. 
Wanton conduct. See Wanton misconduct. 
Wanton injury. Injury produced by conscious and inten
tional wrongful act, or omission of known duty with 
reckless indifference to consequences. It must be predi
cated upon actual knowledge of another's peril and a 
failure to take available preventative action knowing 
that such failure will probably result in injury. Rainey 
v. State, 31 Ala.App. 271, 17 So.2d 683, 686. 
Wanton misconduct. Act or failure to act, when there 
is a duty to act, in reckless disregard of rights of anoth
er, coupled with a consciousness that injury is a proba
ble consequence of act or omission. Swain v. American 
Mut. Liability Ins. Co., C.C.A.La., 134 F.2d 886, 887. 
Term refers to intentional act of unreasonable character 
performed in disregard of risk known to him or so 
obvious that he must be taken to have been aware of it 
and so great as to make it highly probable that harm 
would follow and it is usually accompanied by conscious 
indifference to the consequences. Goss v. Baltimore & 
O. R. Co., C.A.Pa., 355 F.2d 649, 651. See also Wanton 
and reckless misconduct. 
Wanton negligence. Heedless and reckless disregard 
for another's rights with consciousness that act or omis
sion to act may result in injury to another. Craig v. 
Stagner, 159 Tenn. 511, 19 S.W.2d 234, 236. See also 
Negligence; Recklessness. 
Wantonness. Conscious doing of some act or the omis
sion of some duty with knowledge of existing conditions 
and consciousness that, from the act or omission, injury 
will likely result to another. Mack v. Garrison, 51 
Ala.App. 453, 286 So.2d 857, 860. Conscious. failure by 
one charged with a duty to exercise due care and dil
igence to prevent an injury after the discovery of the 
peril, or under circumstances where he is charged with a 
knowledge of such peril, and being conscious of the 
inevitable or probable results of such failure. Stout v. 
Gallemore, 138 Kan. 385, 26 P.2d 573. A reckless or 
intentional disregard of the property, rights, or safety of 
others, implying, actively, a willingness to injure and 
disregard of the consequences to others, and, passively, 
more than mere negligence, that is, a conscious and 
intentional disregard of duty. See also Recklessness; 
Wanton. 
Wapentake /wrep�nteyk/. In English law, a local divi
sion of the county or shire; the name is in use north of 
the Trent to denote a hundred. The derivation of the 
name is said to be from "weapon" and "take," and

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1583 
indicates that the division was originally of a military 
character. Also a hundred court. 
War. Hostile contention by means of armed forces, car
ried on between nations, states, or rulers, or between 
citizens in the same nation or state. Gitlow v. Kiely, 
D.C.N.Y., 44 F.2d 227, 233. A contest by force between 
two or more nations, carried on for any purpose, or 
armed conflict of sovereign powers or declared and open 
hostilities, or the state of nations among whom there is 
an interruption of pacific relations, and a general con
tention by force, authorized by the sovereign. West v. 
Palmetto State Life Ins. Co., 202 S.C. 422, 25 S.E.2d 475, 
477, 478. War does not exist merely because of an 
armed attack by the military forces of another nation 
until it is a condition recognized or accepted by political 
authority of government which is attacked, either 
through an actual declaration of war or other acts 
demonstrating such position. Savage v. Sun Life Assur. 
Co. of Canada, D.C.La., 57 F.Supp. 620, 621. For there 
to be a "war," a sovereign or quasi-sovereign must 
engage in hostilities. Pan American World Airways, 
Inc. v. Aetna Cas. & Sur. Co., C.A.N.Y., 505 F.2d 989, 
1005. 
Term as used in statute proscribing any claim against 
United States arising out of combatant activity of Mili
tary or Naval Forces or Coast Guard during time of war 
includes an undeclared war as well as a formally de
clared war. Morrison v. U. S., D.C.Ga., 316 F.Supp. 78, 
79. 
Articles of war. See that title. 
Civil war. An internecine war. A war carried on 
between opposing citizens of the same country or nation. 
Declaration of war. See War. 
Imperfect war. See Perfect war, below. 
Laws of war. This term denotes a branch of public 
international law, and comprises the body of rules and 
principles observed by civilized nations for the regula
tion of matters inherent in, or incidental to, the conduct 
of a public war; such, for example, as the relations of 
neutrals and belligerents, blockades, captures, prizes, 
truces and armistices, capitulations, prisoners, and dec
larations of war and peace; e.g. Geneva Convention. 
Mixed war. A mixed war is one which is made on one 
side by public authority, and on the other by mere 
private persons. 
Perfect war. Where whole nation is at war with another 
whole nation, but when the hostilities are limited as 
respects places, persons, and things, the war is termed 
"imperfect war." Bas v. Tingy, 4 U.S. (Dall.) 37, 40, 1 
L.Ed. 731. 
Private war. One between private persons, lawfully 
exerted by way of defense, but otherwise unknown in 
civil society. 
Public war. Every contention by force, between two 
nations, in external matters, under the authority of 
their respective governments. Prize Cases, 2 Black 666, 
17 L.Ed. 459. 
WARD 
Solemn war. A war made in form by public declaration; 
a war solemnly declared by one state against another. 
Bas v. Tingy, 4 U.S. (Dall.) 37, 40, 1 L. �d. 731. 
War clauses. Art. I, § 8 (Clauses 11-16) U.S.Const., 
provides, inter alia, that Congress shall have power to 
declare war, and raise and support military forces. See 
War power. 
War crimes. Crimes committed by countries in violation 
of the international laws governing wars. At Nurem
berg after World War II, crimes committed by the Nazis 
were so tried. 
Ward. Guarding, caring, protecting. 
A division of a city or town for elections, police, and 
other governmental purposes. A corridor, room, or oth
er division of a prison, hospital, or similar institution. 
A person, especially a child or incompetent, placed by 
the court under the care and supervision of a guardian 
or conservator. See Guardian; Guardianship. 
See Guardian; Guardianship. 
Wardage. In old English law, money paid and contrib
uted to watch and ward. 
Ward-fegh. Sax. In old English law, ward-fee; the 
value of a ward, or the money paid to the lord for his 
redemption from wardship. 
Ward-horn. In old English law, the duty of keeping 
watch and ward, with a horn to blow upon any occasion 
of surprise. 
Ward-in-chancery. An infant who is under the superin
tendence of the chancellor. 
Ward-mote. In old English law, a court kept in every 
ward in London, commonly called the "ward-mote 
court," or "inquest." 
Ward-penny. In old English law, money paid to the 
sheriff or castellains, for the duty of watching and 
warding a castle. 
Wardship. In military tenures, the right of the lord to 
have custody, as guardian, of the body and lands of the 
infant heir, without any account of profits, until he was 
twenty-one or she sixteen. In socage the guardian was 
accountable for profits; and he was not the lord, but the 
nearest relative to whom the inheritance could not 
descend, and the wardship ceased at fourteen. In copy
holds, the lord was the guardian, but was perhaps ac
countable for profits. See 2 Bl.Comm. 67. 
Wardship in chivalry. An incident to the tenure of 
knight-service. 
Wardshi p in copyholds. The lord is guardian of his 
infant tenant by special custom. 
Wards of admiralty. Seamen are sometimes thus desig
nated, because, in view of their general improvidence 
and rashness, and though they are not technically incap
able of contracting, their contracts are treated like those 
of fiduciaries and beneficiaries, and if there is any 
inequality in terms or any disproportion in the bargain 
or any sacrifice of rights of seamen which are not

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WARD 
compensated by extraordinary benefits, the judicial in
terpretation of the transaction is that the bargain is 
unjust and that pro tanto, the bargain ought to be set 
aside as inequitable. See Garrett v. Moore-McCormack 
Co., Pa., 317 U.S. 239, 63 S.Ct. 246, 251, 87 L.Ed. 239. 
Wards of court. Infants and persons of unsound mind 
placed by the court under the care of a guardian. Davis' 
Committee v. Loney, 290 Ky. 644, 162 S.W.2d 189, 190. 
Their rights must be guarded jealously. Montgomery v. 
Erie R. Co., C.C.A.N.J., 97 F.2d 289, 292. See Guardian
ship. 
Ward-staff. In old records, a constable's or watchman's 
staff. 
Ward-wit. In old English law, immunity or exemption 
from the duty or service of ward, or from contributing to 
such service. Exemption from amercement for not find
ing a man to do ward. 
Warda /word�/. L. Lat. In old English law, ward; 
guard; protection; keeping; custody. A ward; an in
fant under wardship. 
Warden. A guardian; a keeper. Person in primary 
charge of prison. This is the name given to various 
officers. 
Warden of the cinque ports /word�n �v O� siIJk ports/. 
In English law, the title of the governor or presiding 
officer of the Cinque Ports (q.v.). Since 1978 the office 
has been held by the Queen Mother. 
Wards and liveries. In English law, the title of a court 
of record, established in the reign of Henry VIII. Such 
was abolished in 1660. See Court of Wards and Liveries. 
Warectare /wohr�kter iy/. L. Lat. In old English law, 
to fallow ground; or plow up land (designed for wheat) 
in the spring, in order to let it lie fallow for the better 
improvement. 
Warehouse. Structure used for the reception and stor
age of goods and merchandise. Carter v. Bauman, C.C. 
A.CaI., 19 F.2d 855, 856. The term may include any 
structure used to hold goods, stores or wares temporarily 
or for a length of time. In re Miller Land & Livestock 
Co., D.C.Mont., 56 F.Supp. 34, 35. 
Warehouse book. A book used by merchants to contain 
an account of the quantities of goods received, shipped, 
and remaining in stock. 
Warehouseman. One engaged in business of receiving 
and storing goods of others for compensation or profit; 
person who receives goods and merchandise to be stored 
in his warehouse for hire. U.C.C. § 7-102. State ex reI. 
and for Use and Benefit of Cawrse v. American Surety 
Co. of New York, 148 Or. 1, 35 P.2d 487, 491. The 
business is public or private as it may be conducted for 
storage of goods of general public or for those of certain 
persons. The general commercial laws governing rights 
and liabilities of warehousemen are provided in U.C.C. 
§ 7-201 et seq. 
1584 
Warehousemen's lien. Right of warehouseman to re
tain possession of goods until storage charges have been 
paid. See U.C.C. §§ 7-209, 7-210. 
Warehouse receipt. A document in the form of "a 
receipt issued by a person engaged in the business of 
storing goods for hire." U.C.C. § 1-201(45). It is evi
dence of title to goods thereby represented. § 1-210(15). 
For form and content of warehouse receipt, see U.C.C. 
§ 7-202. As regards altered warehouse receipts, see 
§ 7-208. See also Field warehouse receipt. 
Warehouse system. A system of public stores or ware
houses, established or authorized by law, called "bonded 
wareho uses," in which an importer may deposit goods 
imported, in the custody of the revenue officers, paying 
storage, but not being required to pay the customs duties 
until the goods are finally removed for consumption in 
the home market, and with the privilege of withdrawing 
the goods from store for the purpose of re-exportation 
without paying any duties. 
Bonded warehouse. Special type of private warehouse 
used to store products on which a federal tax must be 
paid before they can be sold. 
Warehousing. Practice of mortgage banker of holding 
mortgages until the market for their resale improves. 
Term also refers to situation when a corporation gives 
advance notice of its intention to launch a tender offer 
to institutional investors who are then able to purchase 
stock in the target company before the tender offer is 
made public and the price of shares rises. Chiarella v. 
United States, 445 U.S. 222, 234, 100 S.Ct. 1108, 1117, 63 
L.Ed.2d 348. 
Warning. A pointing out of danger. Also a protest 
against incurring it. The purpose of a "warning" is to 
apprise a party of the existence of danger of which he is 
not aware to enable him to protect himself against it, 
and where the party is aware of the danger, the warning 
will serve no useful purpose and is unnecessary, and 
there is no duty to warn against risks which are open 
and obvious. Wiseman v. Northern Pac. Ry. Co., 214 
Minn. 101, 7 N.W.2d 672, 675. 
Federal laws require warning labels to be affixed to 
potentially dangerous products, clothes, drugs, tools, and 
the like (see e.g. 21 U.S.C.A. § 825). 
See also Caveat; Caveat emptor. 
Warnistura /worn�st(y)ur�/. In old English records, 
garniture; furniture; provision. 
Warnoth. In old English law, an ancient custom, where
by, if any tenant holding of the Castle of Dover failed in 
paying his rent at the day, he should forfeit double, and, 
for the second failure, treble, etc. 
War power. Power of federal government to wage war 
successfully. Brown v. Wright, C.C.A.W.Va., 137 F.2d 
484, 489; United States v. Maviglia, D.C.N.J., 52 F.Supp. 
946, 947. It embraces every aspect of national defense, 
including protection of war materials as well as mem
bers of armed forces from injury and danger; but direct 
interference with liberty and property and abridgement 
of constitutional guaranties of freedom can be justified

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1585 
under the "war power" only where the danger to the 
government is real, impending and imminent. Schuel
ler v. Drum, D.C.Pa., 51 F.Supp. 383, 387. 
, While Congress has power to declare war (Art. I, § 8, 
U.S .Const.), the President, as Commander in Chief, has 
ultimate power over conduct of war including tactics 
and strategy (Art. II, § 1). 
See also War (War clauses). 
War powers resolution. Passed by Congress over a 
Presidential veto in 1973; restricts the executive's au
thority to involve the U.S. in foreign controversies with
out Congressional approval. Specific provisions ensure 
that the President has authority to send the military 
into combat without requesting authorization from Con
gress if the United States or one of her territories is 
attacked. 50 U.S.C.A. §§ 1541-48. 
Warrant, v. In contracts, to engage or promise that a 
certain fact or state of facts, in relation to the subject
matter, is, or shall be, as it is represented to be. 
In conveyancing, to assure the title to property sold, 
by an express covenant to that effect in the deed of 
conveyance. To stipulate by an express covenant that 
the title of a grantee shall be good, and his possession 
undisturbed. 
See also Warranty. 
Warrant, n. An order by which the drawer authorizes 
one person to pay a particular sum of money. 
An authority issued to a collector of taxes, empower
ing him to collect the taxes extended on the assessment 
roll, and to make distress and sale of goods or land in 
default of payment. 
A command of a council, board, or official whose duty 
it is to pass upon the validity and determine the amount 
of a claim against the municipality, to the treasurer to 
pay money out of any funds in the municipal treasury, 
which are or may become available for the purpose 
specified, to a designated person whose claim therefor 
has been duly adjusted and allowed. Roe v. Roosevelt 
Water Conservation Dist., 41 Ariz. 197, 16 P.2d 967, 970; 
State ex reI. Toomey v. State Board of Examiners, 74 
Mont. 1, 238 P. 316, 328. 
See also Land warrant; Possessory warrant; Probable 
cause; Search warrant; Share-warrant to bearer. 
Arrest warrant. A written order of the court which is 
made on behalf of the state, or United States, and is 
based upon a complaint issued pursuant to statute 
and/ or court rule and which commands law enforce
ment officer to arrest a person and bring him before 
magistrate. Pillsbury v. State, 31 Wis.2d 87, 142 
N.W.2d 187, 190. See Fed.R.Crim.P. 4 and 9. 
Form. The warrant shall be signed by the magistrate 
and shall contain the name of the defendant or, if his 
name is unknown, any name or description by which 
he can be identified with reasonable certainty. It shall 
describe the offense charged in the complaint. It shall 
command that the defendant be arrested and brought 
before the nearest available magistrate. Fed.R.Crim.P. 
4(c). 
WARRANT 
Issuance. If it appears from the complaint, or from an 
affidavit or affidavits filed with the complaint, that 
there is probable cause to believe that an offense has 
been committed and that the defendant has committed 
it, a warrant for the arrest of the defendant shall issue 
to any officer authorized by law to execute it. Upon 
the request of the attorney for the government a sum
mons instead of a warrant shall issue. More than one 
warrant or summons may issue on the same complaint. 
If a defendant fails to appear in response to the sum
mons, a warrant shall issue. Fed.R.Crim.P. 4(a). 
See also Arrest; Probable cause; Search warrant; War
rantless arrest. 
Bench warrant. See Bench. 
Death warrant. A warrant issued generally by the chief 
executive authority of a state, directed to the sheriff or 
other proper local officer or the warden of a jail, com
manding him at a certain time to proceed to carry into 
execution a sentence of death imposed by the court upon 
a convicted criminal. 
Distress warrant. See Distress. 
General warrant. A search or arrest warrant that is not 
particular as to the person to be arrested or the property 
to be seized. 
A process which formerly issued from the state secre
tary's office in England to take up (without naming any 
persons) the author, printer, and publisher of such ob
scene and seditious libels as were specified in it. It was 
declared illegal and void for uncertainty by a vote of the 
House of Commons on the 22nd April, 1766. 
Interest warrant. Order drawn by a corporation on its 
bank directing the bank to pay a bondholder who is 
entitled to interest. 
Landlord' s warrant. See Landlord. 
Land warrant. See that title. 
Outstanding warrant. An order for arrest of a person 
which has not yet been executed. 
Search warrant. See that title. 
Stock warrants. Certificates entitling the owner to buy 
a specified amount of stock at a specified time(s) for a 
specified price. Such differ from stock options only in 
that options are generally granted to employees and 
warrants are sold to the public. Warrants are typically 
long period options, are freely transferable, and if the 
underlying shares are listed on a securities exchange, 
are also publicly traded. See also Stock (Stock rights). 
Warrant creditor. See Creditor. 
Warrant of arrest. See Arrest Warrant, above. 
Warrant of attorney. An instrument in writing, ad
dressed to one or more attorneys therein named, autho
rizing them, generally, to appear in any court, or in 
some specified court, on behalf of the person giving it, 
and to confess judgment in favor of some particular 
person therein named, in an action of debt. It usually 
contains a stipulation not to bring any action, or any 
writ of error, or file a bill in equity, so as to delay him;

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such writing usually being given as security for obli
gation on which judgment was authorized, and in such 
procedure service of process is not essential. See Judg
ment (Confession of judgment). 
Warrant of commitment. A written authority commit
ting a person to custody. 
Warrant officers. In the United States army, navy, 
coast and geodetic survey, coast guard, marine corps and 
air force, these are a class of inferior officers who hold 
their rank by virtue of a written warrant instead of a 
commission. 
Warrant of merchantability. See also Warranty. 
Warrant to sue and defend. In old English practice, a 
special warrant from the crown, authorizing a party to 
appoint an attorney to sue or defend for him. 3 Bl. 
Comm. 25. A special authority given by a party to his 
attorney, to commence a suit, or to appear and defend a 
suit, in his behalf. These warrants are now disused, 
though formal entries of them upon the record were 
long retained in practice. 
Warrant upon indictment or information. See Fed.R. 
Crim.P. 9. See also Indictment; Information. 
Warrantee. A person to whom a warranty is made. 
Warrantia chartce Iwohrrensh(iy)� kartiy/. In old Eng
lish practice, warranty of charter. A writ which lay for 
one who, being enfeoffed of lands or tenements, with a 
clause of warranty, was afterwards impleaded in an 
assize or other action in which he could not vouch to 
warranty. In such case, it might be brought against the 
warrantor, to compel him to assist the tenant with a 
good plea or defense, or else to render damages and the 
value of the land, if recovered against the tenant. 3 
Bl.Comm. 300. 
Warrantia custodice Iwohrrensh(iy)� k�st6wdiyiy/. An 
old English writ, which lay for him who was challenged 
to be a ward to another, in respect to land said to be 
holden by knight-service; which land, when it was 
bought by the ancestors of the ward, was warranted free 
from such thraldom. The writ lay against the warran
tor and his heirs. 
Warrantia diei Iwohrrensh(iy)� dayiyay/. A writ which 
lay for a man who, having had a day assigned him 
personally to appear in court in any action in which he 
was sued, was in the meantime, by commandment, em
ployed in the king's service, so that he could not come at 
the day assigned. It was directed to the justices that 
they might not record him in default for that day. 
Warrantizare Iwohr�nt�zeriy/. In old English law con
veyancing, to warrant; to bind one's self, by covenant in 
a deed of conveyance, to defend the grantee in his title 
and possession. 
Warrantizare est defendere et acquietare tenentem, 
qui warrantum vocavit, in seisina sua; et tenens de 
re warranti excambium habebit ad valentiam 
Iwohr�nt�zeriy est d�fend�riy et �kway�teriy t�nent�m, 
kway wohrrent�m vowkeyv�t, in siyz�n� s(y)uw�; ' et 
tim�nz diy riy wohrrentay ekskremb(i)y�m h�biyb�t red 
1586 
v�Umsh(iy)�m/. To warrant is to defend and insure in 
peace the tenant, who calls for warranty, in his seisin; 
and the tenant in warranty will have an exchange in 
proportion to its value. 
Warrantless arrest. Arrest of a person without a war
rant. It is generally permissible if the arresting officer 
has reasonable grounds to believe that the person has 
committed a felony or if the person has committed a 
misdemeanor amounting to a breach of the peace in the 
officer's presence. Wong Sun v. U.S., 371 U.S. 47 1, 83 
S.Ct. 407, 9 L.Ed.2d 44 1. If probable cause exists, no 
warrant is required to apprehend a suspected felon in a 
public place. U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 
46 L.Ed.2d 598. See also Arrest. 
Warrantor. One who makes a warranty. Any supplier 
or other person who gives or offers to give a written 
warranty or who is or may be obligated under an im
plied warranty. 15 U.S.C.A. § 2301. 
Warrantor potest excipere quod querens non tenet 
terram de qua petit warrantiam, et quod donum fuit 
insufficiens Iwohrrentor p6wt�st �ksip�riy kwod 
kwir�nz non ten�t tehr�m diy kwey pet�t 
wohrrensh(iy)�m, et kwod d6wn�m fyuw�t ins�fish
(iy)enz/. A warrantor may object that the complainant 
does not hold the land of which he seeks the warranty, 
and that the gift was insufficient. 
Warranty. A promise that a proposition of fact is true. 
The Fred Smartley, Jr., C.A.Va., 108 F.2d 603, 606. An 
assurance by one party to agreement of existence of fact 
upon which other party may rely. It is intended pre
cisely to relieve promisee of any duty to ascertain facts 
for himself, and amounts to promise to indemnify prom
isee for any loss if the fact warranted proves untrue. 
Paccon, Inc. v. U.S., 399 F.2d 162, 166, 185 Ct.Cl. 24. A 
promise that certain facts are truly as they are repre
sented to be and that they will remain so, subject to any 
specified limitations. In certain circumstances a war
ranty will be presumed, known as an "implied" warran
ty. 
Commercial Transactions 
An assurance or guaranty, either express in the form 
of a statement by a seller of goods, or implied by law, 
having reference to and ensuring the character, quality, 
or fitness of purpose of the goods. A warranty is a 
statement or representation made by seller of goods, 
contemporaneously with and as a part of contract of 
sale, though collateral to express object of sale, having 
reference to character, quality, fitness, or title of goods, 
and by which seller promises or undertakes to insure 
that certain facts are or shall be as he then represents 
them. Vasco Trucking, Inc. v. Parkhill Truck Co., 6 
Ill.App.3d 572, 286 N.E.2d 383, 386. A promise or 
agreement by seller that article sold has certain quali
ties or that seller has good title thereto. A statement of 
fact respecting the quality or character of goods sold, 
made by the seller to induce the sale, and relied on by 
the buyer.

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See also Magnuson-Moss Warranty Act; Privity; Promis
sory warranty; Special warranty. 
Express warranty. A promise, ancillary to an underly
ing sales agreement, which is included in the written or 
oral terms of the sales agreement under which the 
promisor assures the quality, description, or perform
ance of the goods. (1) Express warranties by the seller 
are created as follows: (a) Any affirmation of fact or 
promise made by the seller to the buyer which relates to 
the goods and becomes part of the basis of the bargain 
creates an express warranty that the goods shall con
form to the affirmation or promise. (b) Any description 
of the goods which is made part of the basis of the 
bargain creates an express warranty that the goods shall 
conform to the description. (c) Any sample or model 
which is made part of the basis of the bargain creates an 
express warranty that the whole of the goods shall 
conform to the sample or model. (2) It is not necessary 
to the creation of an express warranty that the seller 
use formal words such as "warrant" or "guarantee" or 
that he have a specific intention to make a warranty, 
but an affirmation merely of the value of the goods or a 
statement purporting to be merely the seller's opinion or 
commendation of the goods does not create a warranty. 
V.C.C. § 2-3 13. 
A written statement arising out of a sale to the 
consumer of a consumer good pursuant to which the 
manufacturer, distributor, or retailer undertakes to pre
serve or maintain the utility or performance of the 
consumer good or provide compensation if there is a 
failure in utility or performance; or in the event of any 
sample or model, that the whole of the goods conforms 
to such sample or model. It is not necessary to the 
creation of an express warranty that formal words such 
as "warrant" or "guarantee" be used, but if such words 
are used then an express warranty is created. An 
affirmation merely of the value of the goods or a state
ment purporting to be merely an opinion or commenda
tion of the goods does not create a warranty. State
ments or representations such as expressions of general 
policy concerning customer satisfaction which are not 
subject to any limitation do not create an express war
ranty. Calif. Civil Code, § 1791.2. 
See also Written warranty, below. 
Extended service warranty. Type of additional warranty 
sold with purchase of appliances, motor vehicles, and 
other consumer goods to cover repair costs not otherwise 
covered by manufacturer's standard warranty. Also 
known as an extended service contract, such either 
extends the coverage period or extends the range of 
potential defects covered beyond the protection fur
nished in the contract of sale. Continental Insurance v. 
Page Engineering, Wyo., 783 P.2d 641. 
Full warranty. A warranty as to full performance cov
ering generally both labor and materials. V nder a full 
warranty, the warrantor must remedy the consumer 
product within a reasonable time and without charge 
after notice of a defect or malfunction. 15 V.S.C.A. 
§ 2304. Compare Limited warranty, below. 
WARRANTY 
Implied warranty of merchantability or fitness for partic
ular purpose. A promise arising by operation of law, 
that something which is sold shall be merchantable and 
fit for the purpose for which the seller has reason to 
know that it is required. (a) Vnless excluded or mod
ified, a warranty that the goods shall be merchantable is 
implied in a contract for their sale, if the seller is a 
merchant with respect to goods of that kind. The serv
ing for value of food or drink to be consumed either on 
the premises or elsewhere is a sale for this purpose. 
V.C.C. § 2- 314(1). (b) Where the seller, at the time of 
contracting, has reason to know any particular purpose 
for which the goods are required, and that the buyer is 
relying on the seller's skill or judgment to select or 
furnish suitable goods, there is, unless excluded or mod
ified, an implied warranty that the goods shall be fit for 
such purpose. V.C.C. § 2-315. 
"Implied warranty of fitness" means that when the 
retailer, distributor, or manufacturer has reason to 
know any particular purpose for which the consumer 
goods are required, and further, that the buyer is rely
ing on the skill and judgment of the seller to select and 
furnish suitable goods, then there is an implied warran
ty that the goods shall be fit for such purpose and that 
when there is a sale of an assistive device sold at retail 
in the state, then there is an implied warranty by the 
retailer that the device is specifically fit for the particu
lar needs of the buyer. Calif.Civil Code, § 1791. 1. 
"Implied warranty of merchantability" or "implied 
warranty that goods are merchantable" means that the 
consumer goods meet each of the following: (1) Pass 
without objection in the trade under the contract de
scription; (2) Are fit for the ordinary purposes for which 
such goods are used; (3) Are adequately contained, pack
aged, and labeled; (4) Conform to the promises or affir
mations of fact made on the container or label. Calif. 
Civil Code, § 1791.1. 
See also Fitness for particular purpose; Merchantability; 
Merchantable. 
Limited warranty. A written warranty which fails to 
meet one or more of the minimum standards for a "full" 
warranty. 15 V.S.C.A. § 2303. Warranty limited to 
labor or to materials for a specified time, commonly 
given by automobile dealers in connection with sale of 
used cars. Compare Full warranty, above. 
Presentment warranties. Implied-in-Iaw promises con
cerning the title and credibility of an instrument which 
are made by certain persons to a payor or acceptor upon 
presentment of the instrument for payment or accept
ance. See V.C.C. §§ 3-417(1), 3-418, 4-2 07(1). 
Third party beneficiaries of warranties. See Privity. 
Transfer warranties. With respect to instruments, im
plied-in-Iaw promises concerning title to, and credibility 
of, an instrument which a transferor of the instrument 
for consideration gives her transferee and, if the trans
fer is by indorsement, to remote transferees. V.C.C. 
§§ 3-417(2) & 4-20 7(2). A transferee of a document of 
title also makes transfer warranties, upon transferring a

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WARRANTY 
document for value, to her immediate transferee. See 
U.C.C. § 7-507. 
Warranty of title. In a sale of goods an implied promise 
exists that the seller owns the item offered for sale. (1) 
Subject to subsection (2) there is in a contract for sale a 
warranty by the seller that (a) the title conveyed shall 
be good, and its transfer rightful; and (b) the goods shall 
be delivered free from any security interest or other lien 
or encumbrance of which the buyer at the time of 
contracting has no knowledge. (2) A warranty under 
subsection (1) will be excluded or modified only by 
specified language or by circumstances which give the 
buyer reason to know that the person selling does not 
claim title in himself or that he is purporting to sell 
only such right or title as he or a third person may have. 
(3) Unless otherwise agreed a seller who is a merchant 
regularly dealing in goods of the kind warrants that the 
goods shall be delivered free of the rightful claim of any 
third person by way of infringement or the like but a 
buyer who furnishes specifications to the seller must 
hold the seller harmless against any such claim which 
arises out of compliance with the specifications. U.C.C. 
§ 2-312. 
Written warranty. Any written affirmation of fact or 
written promise made in connection with the sale of a 
consumer product by a supplier to a buyer which relates 
to the nature of the material or workmanship and 
affirms or promises that such material or workmanship 
is defect free or will meet a specified period of time, or 
any undertaking in writing in connection with the sale 
by a supplier of a consumer product to refund, repair, 
replace, or take other remedial action with respect to 
such product in the event that such product fails to meet 
with the specifications set forth in the undertaking, 
which written affirmation, promise, or undertaking be
comes part of the basis of the bargain between a suppli
er and a buyer for purposes other than resale of such 
product. 15 U.S.C.A. § 2301. See also Express warran
ty, above. 
Insurance 
A warranty in the law of insurance consists of a 
statement by insured upon the literal truth of which the 
validity of the contract depends. Statement, made in 
insurance contract by insured, which is susceptible of no 
construction other than that parties mutually intended 
that policy should not be binding, unless such statement 
be literally true. Brotherhood of Railroad Trainmen v. 
Wood, Tex.Civ.App., 79 S.W.2d 665, 668. 
A statement, description or undertaking on the part of 
insured, appearing in the policy or in another instru
ment properly incorporated in the policy and relating 
contractually to the risk insured against. Reid v. Hard
ware Mut. Ins. Co. of Carolinas, S. C., 252 S.C. 339, 166 
S.E.2d 317, 321. 
Af f irmative warranty. In the law of insurance, warran
ties may be either affirmative or promissory. Affirma
tive warranties may be either express or implied, but 
they usually consist of positive representations in the 
1588 
policy of the existence of some fact or state of things at 
the time, or previous to the time, of the making of the 
policy; they are, in general, conditions precedent, and if 
untrue, whether material to the risk or not, the policy 
does not attach, as it is not the contract of the insurer. 
Express warranty. An agreement expressed in a policy, 
whereby the assured stipulates that certain facts relat
ing to the risk are or shall be true, or certain acts 
relating to the same subject have been or shall be done. 
Promissory warranty. In the law of insurance, a war
ranty which requires the performance or omission of 
certain things or the existence of certain facts after the 
beginning of the contract of insurance and during its 
continuance, and the breach of which will avoid the 
policy. See also Promissory warranty. 
Generally 
Construction warranty. An undertaking or promise 
made by seller or building contractor of new home that 
such home is fit for the purpose intended; i.e. free from 
structural, electrical, plumbing, etc. defects. Many 
states have statutes which provide the purchaser with 
such warranty protection. See Home Owners Warranty; 
also, Warranty of habitability, below. 
Continu ing warranty. One which applies to the whole 
period during which the contract is in force; e.g., an 
undertaking in a charter-party that a vessel shall con
tinue to be of the same class that she was at the time 
the charter-party was made. 
Covenant of warranty. See Covenant. 
Cumulation and conflict of warranties. Warranties 
whether express or implied shall be construed as consist
ent with each other and as cumulative, but if such 
construction is unreasonable the intention of the parties 
shall determine which warranty is dominant. In ascer
taining that intention the following rules apply: (a) 
Exact or technical specifications displace an inconsistent 
sample or model or general language of description. (b) 
A sample from an existing bulk displaces inconsistent 
general language of description. (c) Express warranties 
displace inconsistent implied warranties other than an 
implied warranty of fitness for a particular purpose. 
U.C.C. § 2-3 17. 
General warranty. The name of a covenant of warranty 
inserted in deeds, by which the grantor binds himself, 
his heirs, etc., to "warrant and forever defend" to the 
grantee, his heirs, etc., the title thereby conveyed, 
against the lawful claims of all persons whatsoever. 
Where the warranty is only against the claims of per
sons claiming "by, through, or under" the grantor or his 
heirs, it is called a "special warranty." 
Implied warranty. Exists when the law derives it by 
implication or inference from the nature of the transac
tion or the relative situation or circumstances of the 
parties. Great Atlantic & Pacific Tea Co. v. Walker, 
Tex.Civ.App., 104 S.W.2d 627, 632. See also this topic 
under "Commercial Transactions", above.

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1589 
Lineal warranty. In old conveyancing, the kind of war
ranty which existed when the heir derived title to the 
land warranted either from or through the ancestor who 
made the warranty. 
Personal warranty. One available in personal actions, 
and arising from the obligation which one has contract
ed to pay the whole or part of a debt due by another to a 
third person. Flanders v. Seelye, 105 U.S. 718, 26 L.Ed. 
1217. 
Special warranty. A clause of warranty inserted in a 
deed of lands, by which the grantor covenants, for him
self and his heirs, to "warrant and forever defend" the 
title to the same, to the grantee and his heirs, etc., 
against all persons claiming "by, through, or under" the 
grantor or his heirs. If the warranty is against the 
claims of all persons whatsoever, it is called a "general" 
warranty. See also Covenant. 
Warranty deed. See that title. 
Warranty of fitness. Warranty by seller that goods sold 
are suitable for special purpose of buyer. See also 
Implied warranty of fitness under "Commercial Transac
tions", above. 
Warranty of habitability. Implied warranty of landlord 
that the leased premises are properly maintained and 
are fit for habitation at time of letting and will remain 
so during term of tenancy. Boston Housing Authority v. 
Hemingway, 363 Mass. 184, 293 N.E.2d 83 1. 
Under "implied warranty of habitability," applicable 
to new housing, builder-vendor warrants that he has 
complied with the building code of the area in which the 
structure is located and that the residence was built in a 
workmanlike manner and is suitable for habitation. 
Duncan v. Schuster-Graham Homes, Inc., Colo.App., 563 
P.2d 976, 977. See also Habitability. 
Warranty deed. Deed in which grantor warrants good, 
clear title. A deed which explicitly contains covenants 
concerning the quality of title it conveys. In some 
states, statutes impute warranties or covenants from the 
use of specific words, such as "grant." The usual cove
nants of title are warranties of seisin, quiet enjoyment, 
right to convey, freedom from encumbrances and de
fense of title as to all claims. Compare Quitclaim deed. 
Warranty, voucher to. In old English practice, the 
calling a warrantor into court by the party warranted 
(when tenant in a real action brought for recovery of 
such lands), to defend the suit for him. 
Warren. A term in English law for a place in which 
birds, fishes, or wild beasts are kept. 
A franchise or privilege, either by prescription or 
grant from the king, to keep beasts and fowls of warren, 
which are hares, coneys, partridges, pheasants, etc. 
Also any place to which such privilege extends. 
Free warren. A franchise for the preserving and custody 
of beasts and fowls of warren. 2 Bl.Comm. 39, 417. 
This franchise gave the grantee sole right of killing, so 
far as his warren extended, on condition of excluding 
WASTE 
other persons. 2 Bl.Comm. 39. Such was abolished in 
1971. 
War risk insurance. See Insurance. 
Warsaw Convention. Treaty concluded in Warsaw, Po
land in 1929 consisting of rules, including limitation of 
liability, for international air travel. The United States 
is a party to such treaty. 
Warscot Iworskot/. In Saxon law, a customary or usual 
tribute or contribution towards armor, or the arming of 
the forces. 
Warth. In old English law, a customary payment, sup
posed to be the same with ward-penny. 
Wash. A shallow part of a river or arm of the sea. The 
sandy, rocky, gravelly, boulder-bestrewn part of a river 
bottom deposited on level land near mouth of a canyon 
representing rocks and gravel washed down by a moun
tain stream. 
Wash bank. A bank composed of such substance that it 
is liable to be washed away by the action of the water 
thereon, so as to become unsafe to travelers on highway. 
Washington, Treaty of. A treaty signed on May 8, 
1871, between Great Britain and the United States of 
America, with reference to certain differences arising 
out of the war between the northern and southern states 
of the Union, the Canadian fisheries, and other matters. 
Washout signal. In railroad parlance, emergency signal 
meaning to stop immediately. Stinson v. Aluminum Co. 
of America, C.C.A.Tenn., 141 F.2d 682, 684. 
Wash sale. The offsetting sale and purchase of the same 
or similar asset within a short time period. For income 
tax purposes, losses on a sale of stock may not be 
recognized if equivalent stock is purchased within thirty 
days before or thirty days after the date of sale. I.R.C. 
§ 1091. 
Transactions resulting in no change in beneficial own
ership. Ernst v. Hochfelder, 425 U.S. 185, 205, 96 S.Ct. 
1375, 1386, 47 L.Ed.2d 668. A fictitious kind of sale, 
disallowed on stock and other exchanges, in which a 
broker who has received orders from one person to buy 
and from another person to sell a particular amount or 
quantity of some particular stock or commodity simply 
transfers the stock or commodity from one principal to 
the other and pockets the difference, instead of execu
ting both orders separately to the best advantage in 
each case, as is required by the rules of the different 
exchanges. Such practices of wash sales and matched 
orders by brokers to give impression of active trading in 
such securities are prohibited by SEC. 15 U.S.C.A. 
§ 78i(a)(1). See also Sale. 
Wash transaction. See Wash sale. 
Waste. Action or inaction by a possessor of land causing 
unreasonable injury to the holders of other estates in 
the same land. An abuse or destructive use of property 
by one in rightful possession. Spoil or destruction, done 
or permitted, to lands, houses, gardens, trees, or other 
corporeal hereditaments, by the tenant thereof, to the 
prejudice of the heir, or of him in reversion or remain-

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WASTE 
der. 2 Bl.Comm. 281. Camden Trust Co. v. Handle, 132 
N.J.Eq. 97, 26 A.2d 865, 869. A destruction or material 
alteration or deterioration of the freehold, or of the 
improvements forming a material part thereof, by any 
person rightfully in possession, but who has not the fee 
title or the full estate. An unreasonable or improper 
use, abuse, mismanagement, or omission of duty touch
ing real estate by one rightfully in possession, which 
results in its substantial injury. Unreasonable conduct 
by owner of possessory estate that results in physical 
damage to real estate and substantial diminution in 
value of estates in which others have an interest. Pleas
ure Time, Inc. v. Kuss, 78 Wis.2d 373, 254 N.W.2d 463, 
467. 
The term implies neglect or misconduct resulting in 
material damage to or loss of property, but does not 
include ordinary depreciation of property due to age and 
normal use over a comparatively short period of time. 
First Federal Sav. & Loan Ass'n of Coffeyville v. Moulds, 
202 Kan. 557, 451 P.2d 215, 220. It is the violation of an 
obligation to treat the premises in such manner that no 
harm be done to them, and that the estate may revert to 
those having an underlying interest, undeteriorated by 
any willful or negligent acts. Camden Trust Co. v. 
Handle, 130 N.J.Eq. 125, 21 A.2d 354, 358. 
The primary distinction between "waste" and "tres
pass" is that in waste the injury is done by one rightful
ly in possession. Camden Trust Co. v. Handle, 132 
N.J.Eq. 97, 26 A.2d 865, 867, 869. 
The early English doctrine was to the effect that 
anything which changed the character or nature of the 
land, notwithstanding the fact that it was an improve
ment thereto, constituted "waste." 
Old English criminal law. A prerogative or liberty, on 
the part of the crown, of committing waste on the lands 
of felons, by pulling down their houses, extirpating their 
gardens, plowing their meadows, and cutting down their 
woods. 4 Bl.Comm. 385. 
In General 
Ameliorating waste. Change in the physical character
istics of property by an unauthorized act of the tenant 
but an act which adds value and improves the property. 
A tenant is usually not liable for such waste. 
Commissive waste. Active or positive waste; waste done 
by acts of spoliation or destruction, rather than by mere 
neglect; the same as voluntary waste (see below ). 
Double waste. See Double. 
Equitable waste. Injury to a reversion or remainder in 
real estate, which is not recognized by the courts of law 
as waste, but which equity will interpose to prevent or 
remedy. Otherwise defined as an unconscientious abuse 
of the privilege of non-impeachability for waste at com
mon law, whereby a tenant for life, without impeach
ment of waste, will be restrained from committing will
ful, destructive, malicious, or extravagant waste, such as 
pulling down houses, cutting timber of too young a 
growth, or trees planted for ornament, or for shelter of 
premises. 
1590 
Impeachment of waste. Liability for waste committed, 
or a demand or suit for compensation for waste commit
ted upon lands or tenements by a tenant thereof who 
has no right to commit waste. On the other hand, a 
tenure "without impeachment of waste" signifies that 
the tenant cannot be called to account for waste commit
ted. 
Nul waste. "No waste." The name of a plea in an 
action of waste, denying the commission of waste, and 
forming the general issue. 
Permissive waste. That kind of waste which is a matter 
of omission only, as by tenant letting premises fall into 
disrepair by not making reasonable maintenance repairs 
expected of tenant. 
Voluntary waste. Active or positive waste; waste done 
or committed, in contradistinction to that which results 
from mere negligence, which is called "permissive" 
waste. Voluntary waste is the willful destruction or 
carrying away of something attached to the freehold, 
and "permissive waste" is the failure to take reasonable 
care of the premises. Voluntary or commissive waste 
consists of injury to the demised premises or some part 
thereof, when occasioned by some deliberate or volun
tary act, as, for instance, the pulling down of a house or 
removal of floors, windows, doors, furnaces, shelves, or 
other things affixed to and forming part of the freehold. 
Contrasted with "permissive" waste (above ). 
Writ of waste. See that title. 
Waste-book. A book used by merchants, to receive 
rough entries or memoranda of all transactions in the 
order of their occurrence, previous to their being posted 
in the journal. Otherwise called a "blotter." 
Wastel /w6st�I/. A standard of quality of bread, made of 
the finest white flour. Cocket bread was slightly inferi
or in quality. The statute of 1266 mentions seven kinds 
of bread. 
Waste water. Water that is actually wasted or not 
needed by the claimant thereto; water which, after it 
has served the purpose of the lawful claimant thereto, 
has been permitted to run to waste or to escape; and 
water which from unavoidable causes escapes from the 
ditches, canals, or other works of the lawful claimants. 
Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 
17 P.2d 1074, 1077. But water is not "waste water" so 
long as it remains on the land of the original appropria
tor. 
Wasting asset. A natural resource having a limited 
useful life and, hence, subject to amortization called 
depletion. An asset that will be exhausted through its 
use. Examples are timberland, oil and gas wells, and 
ore deposits. See also Depletion; Wasting property. 
Wasting property. Includes such property as leasehold 
interests; royalties; patent rights; interests in things 
the substance of which is consumed, such as mines, oil 
and gas wells, quarries and timberlands; interests in 
things which are consumed in the using or are worn out 
by use, such as machinery and farm implements. In re

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1591 
Pennock's Will, 285 N.Y. 475, 35 N.E.2d 177, 178. See 
also Wasting asset. 
Wasting trust. A trust in which the trustee may apply 
a part of the principal to make good a deficiency of 
income. Trust, the res of which consists in whole or in 
part of property which is gradually being consumed (i.e. 
consisting of wasting assets). 
Wastors /weyst�rz/. In old statutes, a kind of thieves. 
Watch, v. To keep guard; to stand as sentinel; to be on 
guard at night, for the preservation of security, peace 
and good order. 
Watch, n. A division of a ship's crew. At sea, the ship's 
company is divided into two watches, larboard and star
board, with a mate to command each. O'Hara v. Luck
enbach S. S. Co., 269 U.S. 364, 46 S.Ct. 157, 160, 70 L.Ed. 
313. Also the division of the day into time periods of 
service of the officers and crew, and, by immemorial 
Anglo-Saxon maritime custom, the time period of a 
watch never exceeded four hours. The Denali, C.C.A. 
Wash., 105 F.2d 413, 416. See also Lookout. 
Watch and ward. "Watch" denotes keeping guard dur
ing the night; "ward," by day. 
Watchman. One whose general duties consist of guard
ing, patrolling, and overseeing a building, group of build
ings, or other property. 
Water. As designating a commodity or a subject of 
ownership, this term has the same meaning in law as in 
common speech; but in another sense, and especially in 
the plural, it may designate a body of water, such as a 
river, a lake, or an ocean, or an aggregate of such bodies 
of water, as in the phrases "foreign waters," "waters of 
the United States," and the like. 
See also Flood water; High water line or mark; Implied 
reservation of water doctrine; Inland waters; Intermittent 
stream; Low-water mark; Waste water. 
Backwater. See that title. 
Coast waters. See that title. 
Developed water. Water which is brought to the surface 
and made available for use by the party claiming the 
water. 
Flood waters. Waters which escape from a water course 
in great volume and flow over ad joining lands in no 
regular channel. The fact that such errant waters 
make for themselves a temporary channel or follow 
some natural channel, gully, or depression does not 
affect their character as "flood waters" or give to the 
course which they follow the character of a natural 
"water course." Everett v. Davis, Cal.App., 107 P.2d 
650, 654, 655. See also Flood. 
Foreign waters. Those belonging to another nation or 
country or subject to another jurisdiction, as distin
guished from "domestic" waters. 
Inland waters. See that title. 
Navigable waters. See that title. 
WATER 
Percolating waters. Those which pass through the 
ground beneath the surface of the earth without any 
definite channel, and do not form a part of the body or 
flow, surface or subterranean, of any water-course. 
They may be either rain waters which are slowly infil
trating through the soil or waters seeping through the 
banks or the bed of a stream, and which have so far left 
the bed and the other waters as to have lost their 
character as a part of the flow of that stream. Those 
which ooze, seep, or filter, through the soil beneath the 
surface without a defined channel, or in a course that is 
unknown and not discoverable from surface indications 
without excavation for that purpose. C & W Coal Corp. 
v. Salyer, 200 Va. 18, 104 S.E.2d 50, 53. 
Private waters. Non-navigable streams, or bodies of 
water not open to the resort and use of the general 
public, but entirely owned and controlled by one or more 
individuals. 
Public waters. Such as are adapted for the purposes of 
navigation, or those to which the general public have a 
right of access, as distinguished from artificial lakes, 
ponds, and other bodies of water privately owned, or 
similar natural bodies of water owned exclusively by one 
or more persons. 
Subterranean waters. Waters which lie wholly beneath 
the surface of the ground, and which either ooze and 
seep through the subsurface strata without pursuing 
any defined course or channel (percolating waters), or 
flow in a permanent and regular but invisible course, or 
lie under the earth in a more or less immovable body, as 
a subterranean lake. 
Surface waters. Those waters coming unto the ground 
and naturally spreading over the ground before they 
have formed into natural watercourses. Kirkpatrick v. 
Butler, 14 Ariz.App. 379, 483 P.2d 790, 794. As distin
guished from the waters of a natural stream, lake, or 
pond, surface waters are such as diffuse themselves over 
the surface of the ground, following no defined course or 
channel, and not gathering into or forming any more 
definite body of water than a mere bog or marsh. They 
generally originate in rains and melting snows, but the 
flood waters of a river may also be considered as surface 
waters if they become separated from the main current, 
or leave it never to return, and spread out over lower 
ground. Water derived from rains and melting snows 
that is diffused over surface of the ground, and it contin
ues to be such and may be impounded by the owner of 
the land until it reaches some well-defined channel in 
which it is accustomed to, and does, flow with other 
waters, or until it reaches some permanent lake or pond, 
whereupon it ceases to be "surface water" and becomes 
a "water course" or a "lake" or "pond," as the case may 
be. Bohaty v. Briard, 219 Neb. 42, 361 N.W.2d 502, 506. 
Sur plus water. Water running off from ground which 
has been irrigated; water not consumed by the process 
of irrigation; water which the land irrigated will not 
take up. 
Territorial waters. See that title.

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WATER 
Tide waters. See Tide. 
Water-bayley. An officer mentioned in the colony laws 
of New Plymouth, (A.D. 1671,) whose duty was to collect 
dues to the colony for fish taken in their waters. Proba
bly another form of water-bailiff. 
Water course. See that title. 
Water front. Land or land with buildings fronting on a 
body of water. 
Water-gage. A sea-wall or bank to restrain the current 
and overflowing of the water; also an instrument to 
measure water. 
Water-gang. A Saxon word for a trench or course to 
carry a stream of water, such as are commonly made to 
drain water out of marshes. 
Water-gavel. In old records, a gavel or rent paid for 
fishing in or other benefit received from some river or 
water. 
Water-logged. A vessel is "water-logged" when she be
comes heavy and unmanageable on account of the leak
age of water into the hold. 
Water-mark. See that title. 
Water power. The water power to which a riparian 
owner is entitled consists of the fall in the stream when 
in its natural state, as it passes through his land, or 
along the boundary of it; or, in other words, it consists 
of the difference of level between the surface where the 
stream first touches his land, and the surface where it 
leaves it. The use of water for power according to 
common understanding means its application to a water 
wheel to the end that its energy under the specified 
head and fall may be utilized and converted into avail
able force. Holyoke Water Power Co. v. American Writ
ing Paper Co., D.C.Mass., 17 F.Supp. 895, 898. 
Water rights. A legal right, in the nature of a corporeal 
hereditament, to use the water of a natural stream or 
water furnished through a ditch or canal, for general or 
specific purposes, such as irrigation, mining, power, or 
domestic use, either to its full capacity or to a measured 
extent or during a defined portion of the time. City of 
Los Angeles v. City of Glendale, Cal.App., 132 P.2d 574, 
584. A usufruct in a stream consisting in the right to 
have the water flow so that some portion of it may be 
reduced to possession and be made private property of 
individual; the right to divert water from natural 
stream by artificial means and apply the same to benefi
cial use. Ronzio v. Denver & R. G. W. R. Co., C.C.A. 
Utah, 116 F.2d 604, 605. It includes right to change the 
place of diversion, storage, or use of water if rights of 
other water users will not be injured. Lindsey v. 
McClure, C.C.A.N.M., 136 F.2d 65, 70. It was also said 
to be real property which may be sold and transferred 
separately from land on which it has been used. Feder
al Land Bank of Spokane v. Union Cent. Life Ins. Co., 54 
Idaho 161, 29 P.2d 1009, 1011. See also Artificially devel
oped water; Common enemy doctrine; Drainage rights; 
Excess or surplus water; Implied reservation of water 
1592 
doctrine; Littoral rights; Mill privilege; Overlying 
right; Reasonable use theory; Riparian rights. 
Waterscape. An aqueduct or passage for water. 
Waters of the United States. All waters within the 
United States which are navigable for the purposes of 
commerce, or whose navigation successfully aids com
merce, are included in this term. See also Territorial 
waters. 
Water course. A running stream of water; a natural 
stream fed from permanent or natural sources, includ
ing rivers, creeks, runs, and rivulets. There must be a 
stream, usually flowing in a particular direction, though 
it need not flow continuously. It may sometimes be dry. 
It must flow in a definite channel, having a bed or 
banks, and usually discharges itself into some other 
stream or body of water. It must be something more 
than a mere surface drainage over the entire face of the 
tract of land, occasioned by unusual freshets or other 
extraordinary causes. Duckworth v. Williams, 238 
S.W.2d 234, 386 S.W.2d 234, 235. 
A water course, in the legal meaning of the word, does 
not consist merely of the stream as it flows within the 
banks which form its channel in ordinary stages of 
water, but the stream still retains its character as a 
water course when, in times of ordinary high water, the 
stream extending beyond its own banks, is accustomed 
to flow down over the adjacent lowlands in a broader but 
still definable stream. Atchison, T. & S. F. Ry. Co. v. 
Hadley, 168 Okl. 588, 35 P.2d 463, 466. 
Water flowing underground in a known and well 
defined channel is not "percolating water", but consti
tutes a "water course", and is governed by law applica
ble to "surface streams", rather than by law applicable 
to percolating waters. Bull v. Siegrist, 169 Or. 180, 126 
P.2d 832, 834. 
See also Ancient water course. 
Natural water course. A natural stream flowing in a 
defined bed or channel; one formed by the natural flow 
of the water, as determined by the general superficies or 
conformation of the surrounding country, as distin
guished from an "artificial" water course, formed by the 
work of man, such as a ditch or canal. 
Water district. Official geographical areas which are 
supplied water under regulation of a body of commis
sioners or other officials. 
Watered stock. Stock issued by corporation for less 
than full and adequate consideration. Stock which is 
issued by a corporation as fully paid-up stock, when in 
fact the whole amount of the par value thereof has not 
been paid in. Stock issued as bonus or otherwise with
out consideration or issued for a sum of money less than 
par value, or issued for labor, services, or property 
which at a fair valuation is less than the par value. 
Water-mark. A mark indicating the highest point to 
which water rises, or the lowest point to which it sinks. 
Transparent design or symbol which can be seen when 
paper is held up to the light and is used to identify the

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1598 
manufacturer of the paper or the genuineness of the 
document such as a check or stamp. 
High-water mark. This term is properly applicable to 
tidal waters, and designates the line on the shore 
reached by the water at the high or flood tide. With 
reference to the waters of artificial ponds or lakes, 
created by dams in unnavigable streams, it denotes the 
highest point on the shores to which the dams can raise 
the water in ordinary circumstances. The high-water 
mark of a river, not subject to tide, is the line which the 
river impresses on the soil by covering it for sufficient 
periods to deprive it of vegetation, and to destroy its 
value for agriculture. 
Low-water mark. That line on the shore of the sea 
which marks the edge of the waters at the lowest point 
of the ordinary ebb tide. The "low-water mark," of a 
river is the point to which the water recedes at its 
lowest stage. 
Water ordeal. See Ordeal. 
Waterway. See Water course. 
Waveson Iweyvsan/. In old records, such goods as, after 
a wreck, swim or float on the waves. See Flotsam. 
Wax scot. A duty anciently paid twice a year towards 
the charge of wax candles in churches. 
Way. A passage, path, road, or street. In a technical 
sense, a right of passage over land. See also Easement. 
Private way. A right which a person has of passing over 
the land of another. In another sense (chiefly in New 
England) a private way is one laid out by the local 
public authorities for the accommodation of individuals 
and wholly or chiefly at their expense, but not restricted 
to their exclusive use, being subject, like highways, to 
the public easement of passage. 
Right of way. See that title. 
Way of necessity. Exists where land granted is com
pletely environed by land of .the grantor, or partially by 
his land and the land of strangers. Cole v. Wanamaker, 
296 A.2d 329, 332. The law implies from these facts 
that a private right of way over the grantor's land was 
granted to the grantee as appurtenant to the estate. It 
is not merely one of convenience, and never exists where 
person may reach highway over his own land. And it 
cannot legally exist where neither the party claiming 
the way nor owner of land o';er which it is claimed, nor 
anyone under whom either of them claim, was ever 
seized of both tracts of land at same time. It is not 
based on continuous adverse user, but arises by implica
tion of law from necessities of case, and ceases when 
necessity therefor ceases. The extent of a "way of 
necessity" is a way such as is required for complete and 
beneficial use of land to which the way is impliedly 
attached. New York Cent. R. Co. v. Yarian, 219 Ind. 
477, 39 N .E.2d 604, 606. 
Way-bill. Written document made out by carrier listing 
point of origin and destination, consignor and consignee, 
and describing goods included in shipment and transpor
tation costs. Such constitutes the written description of 
WEAR AND TEAR 
the shipment in the event of any claim by or against 
common carrier. See also Bill of lading. 
Way-going crop. A crop of grain sown by a tenant for a 
term certain, during his tenancy, but which will not 
ripen until after the expiration of his lease. In the 
absence of an express agreement to the contrary tenant 
is entitled thereto. 
Wayleave. A right of way over or through land for the 
carriage of minerals from a mine or quarry. It is an 
easement, being a species of the class called "rights of 
way," and is generally created by express grant or 
reservation. 
Waynagium Iweyneyj(iy)am/. Implements of husband
ry. 
Ways and means. In a legislative body, the "committee 
on ways and means" is a committee appointed to inquire 
into and consider the methods and sources for raising 
revenue, and to propose means for providing the funds 
needed by the government. In Congress it is a standing 
committee of the House of Representatives responsible 
for supervising legislation dealing with financial mat
ters. 
W.D. An abbreviation for "Western District;" e.g. U.S. 
District Court for Western District of Kentucky. 
Weald Iwiyld/. Sax. A wood; the woody part of a 
country. 
Wealreaf Iwiylriyf/. In old English law, the robbing of a 
dead man in his grave. 
Wealth. Large quantity of possessions, assets, securities, 
and the like. State of having abundant financial re
sources and properties. All material objects, capable of 
satisfying human wants, desires, or tastes, having a 
value in exchange, and upon which human labor has 
been expended; i.e., which have, by such labor, been 
either reclaimed from nature, extracted or gathered 
from the earth or sea, manufactured from raw materi
als, improved, adopted, or cultivated. The aggregate of 
all the things, whether material or immaterial, which 
contribute to comfort and en joyment, which cannot be 
obtained without more or less labor, and which are 
objects of frequent sale. 
Weapon. An instrument of offensive or defensive com
bat, or anything used, or designed to be used, in destroy
ing, defeating, threatening, or injuring a person. The 
term is chiefly used, in law, in the statutes prohibiting 
the carrying or using of "concealed" or "deadly" weap
ons. See also Dangerous weapon; Deadly weapon; Of
fensive weapon. 
Wear, or weir Iwer/wir/. A great dam or fence made 
across a river, or against water, formed of stakes inter
laced by twigs of osier, and accommodated for the taking 
of fish, or to convey a stream to a mill. 
Wear and tear. "Natural wear and tear" means deterio
ration or depreciation in value by ordinary and reason
able use of the subject-matter. See Depreciation.

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WEARING APPAREL 
Wearing apparel. As generally used in statutes, refers 
not merely to a person's outer clothing, but covers all 
articles usually worn, and includes underclothing. Ar
nold v. U. S., 147 U.S. 494, 13 S.Ct. 406, 37 L.Ed. 253. 
All articles of dress generally worn by persons in the 
calling and condition of life and in the locality of the 
person in question. In re Steimes' Estate, 150 Misc. 279, 
270 N.Y.S. 339. 
Webb-Pomerene Act. Federal Act (1918) which pro
vides a qualified exemption for an export association 
from the prohibitions of the antitrust laws. The Act is 
administered by the Federal Trade Commission. 
Wed. Sax. A covenant or agreement. A pledge. 
Wedbedrip. Sax. In old English law, a customary ser
vice which tenants paid to their lords, in cutting down 
their corn, or doing other harvest duties; as if a cove
nant to reap for the lord at the time of his bidding or 
commanding. 
Wedlock. State of marriage. 
Week. A period of seven consecutive days of time; and, 
in some uses, the period beginning with Sunday and 
ending with Saturday. See Leach v. Burr, 188 U.S. 510, 
23 S.Ct. 393, 47 L.Ed. 567. Words "two weeks" mean 
fourteen days. Fisher v. Booher, 269 Ky. 501, 107 
S.W.2d 307, 309. 
Week-work. In early English times, the obligation of a 
tenant to work two or three days in every week for his 
lord, during the greater part of the year, and four or five 
during the summer months. 
Wehading. In old European law, the judicial combat, or 
duel; the trial by battel. 
Weighage Iwey':Jj/. In English law, a duty or toll paid 
for weighing merchandise. It is called "tronage" for 
weighing wool at the king's beam, or "pesage" for weigh
ing other avoirdupois goods. 
Weight. A measure of heaviness or ponderosity; and in 
a metaphorical sense influence, effectiveness, or power 
to influence judgment or conduct. The quantity of 
heaviness, the quality of being heavy, the degree or 
extent of downward pressure under the influence of 
gravity, or the quantity of matter as estimated by the 
balance or scale. 
Gross weight. Of packaged goods, the total weight, 
including contents and packaging. 
Net weight. Of packaged goods, includes only weight of 
contained goods. See also Net weight. 
Weight of evidence. The balance or preponderance of 
evidence; the inclination of the greater amount of credi
ble evidence, offered in a trial, to support one side of the 
issue rather than the other. It indicates clearly to the 
jury that the party having the burden of proof will be 
entitled to their verdict, if, on weighing the evidence in 
their minds, they shall find the greater amount of credi
ble evidence sustains the issue which is to be established 
before them. Weight is not a question of mathematics, 
1594 
but depends on its effect in inducing belief. See also 
Burden of proof; Preponderance of evidence. 
Welfare. Well-doing or well-being in any respect; the 
enjoyment of health and common blessings of life; ex
emption from any evil or calamity; prosperity; happi
ness. See also General welfare; Public welfare. 
Welfare clause. Constitutional provision (Art. I, § 8) 
permitting the federal government to enact laws for the 
overall general welfare of the people. It is the basis for 
the exercise of implied powers necessary to carry out the 
express provisions of the Constitution. 
Well, adj. In marine insurance, a term used as descrip
tive of the safety and soundness of a vessel, in a warran
ty of her condition at a particular time and place; as, 
"warranted well at ___ on ___ ." 
In old reports, good, sufficient, unobjectionable in law; 
the opposite of "ill." 
Well, n. A hole or shaft sunk into the earth in order to 
obtain a fluid, such as water, oil, brine, or natural gas, 
from a subterranean supply. Loosely, any shaft or pit 
dug or bored in earth, or any space so constructed as to 
suggest or be likened to, a well for water; a pit or hole 
in the ground or a hollow cylinder built in such hole; or 
a shaft or excavation in mining. Seismograph Service 
Corporation v. Mason, 193 Okl. 623, 145 P.2d 967, 970. 
Well knowing. A phrase used in pleading as the techni
cal expression in laying a. scienter (q.v.). 
Welshing Iwelsh iIJ/. Receiving a sum of money or valu
able thing, undertaking to return the same or the value 
thereof together with other money, if an event (for 
example, the result of a horse-race) shall be determined 
in a certain manner, and at the time of receiving the 
deposit intending to cheat and defraud the depositor. 
The crime is larceny at common law. 
Welsh mortgage. See Mortgage. 
Wend. In old records, a large extent of ground, compris
ing several juga; a perambulation; a circuit. 
Wer. See Amendment. 
Wera, or were Iwir(':J)/. The estimation or price of a 
man, especially of one slain. In the criminal law of the 
Anglo-Saxons, every man's life had its value, called a 
"were," or "capitis cestimatio." 
Weregelt thef Iwirgelt-Oiyf/. Sax. In old English law, a 
robber who might be ransomed. 
Weregild, or wergild Iwirgild/wargild/. This was the 
price of homicide, or other atrocious personal offense, 
paid partly to the king for the loss of a subject, partly to 
the lord for the loss of a vassal, and partly to the next of 
kin of the injured person. In the Anglo-Saxon laws, the 
amount of compensation varied with the degree or rank 
of the party slain. See Angild; Angylde. 
Werelada. A purging from a crime by the oaths of 
several persons, according to the degree and quality of 
the accused.

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1595 
Werp-geld. Belg. In European law, contribution for 
jettison; average. 
WESTLA W. A computer-assisted legal research service 
provided by West Publishing Company. WESTLAW 
provides on-line access to a database of legal information 
including federal and state caselaw, statutes, and admin
istrative, regulatory, and secondary materials. 
Westminster. A city immediately adjoining London, and 
forming a part of the metropolis; formerly the seat of 
the superior courts of the kingdom. 
Westminster Confession. A document containing a 
statement of religious doctrine, concocted at a confer
ence of British and continental Protestant divines at 
Westminster, in the year 1643, which subsequently be
came the basis of the Scotch Presbyterian Church. 
Westminster the First, Statute of. The statute 3 Edw. 
I, A.D. 1275. This statute, which deserves the name of a 
code rather than an act, is divided into fifty-one chap
ters. Without extending the exemption of churchmen 
from civil jurisdiction, it protects the property of the 
church from the violence and spoliation of the king and 
the nobles, provides for freedom of popular elections, 
because sheriffs, coroners, and conservators of the peace 
were still chosen by the freeholders in the county court, 
and attempts had been made to influence the election of 
knights of the shire, from the time when they were 
instituted. It contains a declaration to enforce the en
actment of Magna Charta against excessive fines, which 
might operate as perpetual imprisonment; enumerates 
and corrects the abuses of tenures, particularly as to 
marriage of wards; regulates the levying of tolls, which 
were imposed arbitrarily by the barons and by cities and 
boroughs; corrects and restrains the powers of the 
king's escheator and other officers; amends the criminal 
law, putting the crime of rape on the footing to which it 
has been lately restored, as a most grievous, but not 
capital, offense; and embraces the subject of procedure 
in civil and criminal matters, introducing many regula
tions to render it cheap, simple, and expeditious. Cer
tain parts of this act are repealed by St. 26 & 27 Vict., c. 
125. 
West Saxon Lage. The laws of the West Saxons, which 
obtained in the counties to the south and west of Eng
land, from Kent to Devonshire. Blackstone supposes 
these to have been much the same with the laws of 
Alfred, being the municipal law of the far most consider
able part of his dominions, and particularly including 
Berkshire, the seat of his peculiar residence. 1 Bl. 
Comm. 65. See Mercen-Iage. 
W-4 form. The "Employee's Withholding Allowance 
Certificate," indicating the number of exemptions that 
the employee is claiming, used by the employer in deter
mining the amount to be withheld for federal income 
taxes. 
Whack. To divide into shares, apportion, parcel out, 
make a division settlement, square accounts, or to pay. 
Whale. A royal fish, the head being the king's property, 
and the tail the queen's. 
WHEN 
Wharf. A structure on the margin or shore of navigable 
waters, alongside of which vessels can be brought for the 
sake of being conveniently loaded or unloaded, or a 
space of ground, artificially prepared, for the reception 
of merchandise from a ship or vessel, so as to promote 
the discharge of such vessel. 
Private wharf. One whose owner or lessee has the 
exclusive enjoyment or use thereof. The M. L. C. No. 
10, C.C.A.N.Y., 10 F.2d 699, 702. 
Public wharf. One to which vessels and the public can 
resort, either at will or on assignment of a berth by a 
harbor authority. Kafline v. Brooklyn Eastern Dist. 
Terminal Co., 180 App.Div. 858, 168 N.Y.S. 120, 121. 
Wharfage I (h)w6rf�j I . The money paid for landing 
goods upon, or loading them from, a wharf. Manhattan 
Lighterage Corporation v. Moore McCormack Line, D.C. 
N.Y., 45 F.Supp. 271, 273. Charge for use of wharf by 
way of rent or compensation. Marine Lighterage Corpo
ration v. Luckenbach S. S. Co., 139 Misc. 612, 248 N.Y.S. 
71, 72. 
Wharfinger l(h)w6rf�nj�r/. The owner or occupier of a 
wharf; one who for hire receives merchandise on his 
wharf, either for the purpose of forwarding or for deliv
ery to the consignee on such wharf. 
Wharfing out, right of. A right to the exclusive use of 
submerged lands as by the affixing thereto or the estab
lishment thereon of a permanent structure to some 
point within the navigable body of water, deep and wide 
enough to dock ocean-going vessels, and it presupposes 
exclusive use and to that extent may interfere with 
fishing or navigation. City of Oakland v. Hogan, 41 
Cal.App.2d 333, 106 P.2d 987, 994. 
Wharton Rule. In criminal law of conspiracy, the rule 
that an agreement by two persons to commit a particu
lar crime cannot be prosecuted as a conspiracy when the 
crime is of such a nature as to require necessarily the 
participation of the two persons, e.g. adultery. It is 
named after the criminal law author, Francis Wharton. 
Iannelli v. U. S., 420 U.S. 770, 95 S.Ct. 1284, 1288, 43 
L.Ed.2d 616. Also called "concert of action" rules. 
Wheel. An engine of torture used in medieval Europe, 
on which a criminal was bound while his limbs or bones 
were broken one by one till he died. 
Wheelage. Duty or toll paid for vehicles passing over 
certain ground. 
Whelps I(h)welps/. The young of certain animals of a 
base nature or terre natur re. 
When. At what time; at the time that; at which time; 
at that time. Gehrung v. Collister, 52 Ohio App. 314, 3 
N.E.2d 700, 701, 5 0.0. 195. At, during, or after the 
time that; at or just after the moment that. In re 
Morrow's Will, 41 N.M. 723, 73 P.2d 1360, 1364. In the 
event that, on condition that, in virtue of the circum
stances that. Frequently employed as equivalent to the 
word "if' in legislative enactments and in common 
speech.

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WHEN AND WHERE 
When and where. Technical words in pleading, former
ly necessary in making full defense to certain actions. 
Whenever. At whatever time; at what time soever. In 
any or every instance in which. 
When issued. Abbreviated term in securities law for 
"when, as and if issued" in connection with a stock not 
yet authorized for issuance. The term refers to a condi
tional transaction in which one indicates a desire to buy 
when the security is available for sale after its authori
zation. 
Where. At or in what place; from what place or source. 
As used in the statutory language, "where the prosecu
tion is held," the word does not refer to the geographical 
location of the place of hearing, but rather to the tribu
nal or official before whom the case is tried. If; in the 
case of; in the event that. 
Whereas. When in fact. A "whereas" clause of a con
tract is but an introductory or prefatory statement 
meaning "considering that" or "that being the case", 
and is not an essential part of the operating portions of 
the contract. Jones v. City of Paducah, 283 Ky. 628, 142 
S.W.2d 365, 367. 
Whereby. By or through which; by the help of which; 
in accordance with which. 
Whereupon. Upon which; after which. 
While. Pending or during the time that. Often used 
adversatively and to imply contrast, and in some con
structions introduces a parenthetical clause. Jackson v. 
Texas Co., C.C.A.OkL, 75 F.2d 549, 553. "While," within 
provision of accidental death life policy excluding cover
age for a loss as result of injury sustained by insured 
while committing or attempting to commit assault or 
felony, is word of time and not of causation. Romero v. 
Volunteer State Life Ins., 10 C.A.3d 571, 88 CaLRptr. 
820, 824. 
Whim. Passing fancy; an impulse or caprice. Used in 
jury instruction in cautioning the jurors to avoid re
turning a verdict based on anything but the evidence 
and its strength, not on the personal whim or caprice of 
the jurors. 
Whiplash injury. A snapping of the neck when a per
son gets his head thrown forward or back or from side to 
side. Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 
828, 832. Commonly resulting from rear-end motor 
vehicle collisions, such is caused by a sudden and unex
pected forced movement of the neck of an individual 
while he is in a relaxed position and against which he 
cannot protect himself. Hanover Fire Ins. Co. v. Sides, 
C.A.La., 320 F.2d 437, 44 1. It may result in several 
types of pathological injuries, such as sprain, fracture, 
dislocation and so forth. Liquette v. Bouillion, La.App., 
184 So.2d 766, 768. 
Whipping. A mode of punishment, by the infliction of 
stripes (long welts on the skin), formerly used occasion
ally in England and in a few of the American states. 
See Act of February 28, 1839, § 5, and June 25, 1948, c. 
645, 62 Stat. 837. See also Corporal punishment. 
1596 
Whistle blower. An employee who refuses to engage in 
and/ or reports illegal or wrongful activities of his em
ployer or fellow employees. Russ v. Pension Consul
tants Co., 182 IlLApp.3d 769, 131 Ill.Dec. 318, 538 N.E.2d 
693. Employer retaliation against whistle blowers is 
often statutorily prohibited. See also False Claims Act; 
Whistle-blower Acts; Wrongful discharge. 
Whistle-blower Acts. Federal and state statutes de
signed to protect employees from retaliation for a disclo
sure of an employer's misconduct. The Civil Service 
Reform Act, 5 U.S.C.A. § 2302(b), protects federal em
ployees who disclose mismanagement or illegal conduct. 
Several other federal laws protect employees who dis
close regulatory violations; e.g. OSHA violations, 29 
U.S.C.A. § 660(c). Many states also protect private 
and/ or public sector whistle-blowers. Cf. California La
bor Code § 1102.5. See also False Claims Act; Qui tam 
action; Wrongful discharge. 
White acre. A fictitious name given to a piece of land 
for purposes of illustrating real property transactions. 
Whitecaps. The name of an unlawful organization 
against which Tennessee in 1897 enacted a statute (Acts 
1897, c. 52) entitled, "An act to prevent and punish the 
formation or continuance of conspiracies and combina
tions for certain unlawful purposes," etc., commonly 
known as the "Law against Whitecaps." Persons guilty 
of any offense under the act were rendered incompetent 
for jury service. 
White collar crimes. Term signifying various types of 
unlawful, nonviolent conduct committed by corporations 
and individuals including theft or fraud and other viola
tions of trust committed in the course of the offender's 
occupation (e.g., embezzlement, commercial bribery, 
racketeering, anti-trust violations, price-fixing, stock 
manipulation, insider trading, and the like). RICO laws 
are used to prosecute many types of white collar crimes. 
See RICO laws. 
White knight. In corporate law, a potential acquirer 
usually sought out by the target of an unfriendly take
over to rescue it from the unwanted bidder's takeover. 
A word of art used to describe potential merger partners 
with whom a target company negotiates toward the 
realization of a merger on terms which the target com
pany management finds acceptable. The white knight 
pursues ownership by means of a "sweetheart deal" 
with the incumbent management, while an unwanted 
bidder deals directly with the shareholders. American 
General Ins. Co. v. Equitable General Corp., D.C.Va., 493 
F.Supp. 721, 732. See also Golden parachute; Lockup; 
Poison pill; Porcupine provisions; Raider; Saturday night 
special. 
White mule. Corn whisky; contraband whisky. 
White persons. As used in Rev.St.U.S. § 2169 (Naturali
zation Act March 26, 1790, c. 3, 1 Stat. 103, as amended 
by Act Feb. 18, 1875, c. 80, § 1, 18 Stat. 318 [8 U.S.C.A. 
§ 703]), members of the white or Caucasian race, as 
distinct from the black, red, yellow, and brown races.

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1597 
Takao Ozawa v. U. S., 260 U.S. 178, 43 S.Ct. 65, 68, 67 
L.Ed. 199. 
In the legislation of the slave period, persons without 
admixture of colored blood, whatever the actual com
plexion might be. 
White rents. In old English law, rents paid in silver, 
and called "white rents," or "redditus albi," to distin
guish them from rents payable in corn, labor, provisions, 
etc., called "black-rent" or "black-mail." See Alba firma. 
White slave. A term formerly used in the United States 
statutes to indicate a female with reference to whom an 
offense is committed under the so-called Mann White 
Slave Traffic Act of June 25, 1910, prohibiting th� 
transportation in interstate and foreign commerce for 
immoral purposes of women and girls. A 1986 amend
ment to the federal Criminal Code substituted "Trans
portation for Illegal Sexual Activity and Related 
Crimes" for "White Slave Traffic" as the description for 
this crime. 18 U.S.C.A. § 2421 et seq. See Mann Act. 
White spurs. A kind of esquires. 
Whitsun farthings I(h)wits:m fart5ilJz/. Pentecostals 
(q. v.). 
Whittanwarii I(h)wit:mweriyay/. In old English law, a 
class of offenders who whitened stolen ox-hides and 
horse-hides so that they could not be known and identi
fied. 
Whole. Hale, hearty, strong, sound; also, entire, com
plete. 
Whole blood. See Blood relations. 
Whole chest. In the tea trade, a chest containing 100 to 
140 pounds or more. 
Whole life insurance. See Insurance (Life insurance). 
Whole record test. Test used by court to review suffi
ciency of an administrative board's findings of fact. It 
does not allow a reviewing court to replace board's 
judgment between two reasonably conflicting views, al
though court could have justifiably reached different 
result had matter been before it de novo. Correll v. 
Boulware, 74 N.C.App. 631, 329 S.E.2d 695, 699. See 
also Substantial evidence rule. 
Wholesale. Selling to retailers or jobbers rather than to 
consumers. Stolze Lumber Co. v. Stratton, 386 Ill. 334, 
54 N.E.2d 554, 558. A sale in large quantity to one who 
intends to resell. 
Wholesale dealer. One whose business is the selling of 
goods in gross to retail dealers, and not by the small 
quantity or parcel to consumers thereof. Veazey Drug 
Co. v. Bruza, 169 Okl. 418, 37 P.2d 294. See Jobber; 
Wholesaler. 
Wholesale price. That which retailer pays in expecta
tion of obtaining higher price by way of profit from 
resale to ultimate consumer. Guess v. Montague, D.C. 
S.C., 51 F.Supp. 61, 65. 
Wholesale price index. A statistical measure compiled 
monthly which compares the price changes of a large 
WHORE 
group of commodities (weighted by their relative impor
tance) to prices in a base year. See also Consumer Price 
Index; Producer Price Index. 
Wholesaler. One who buys in comparatively large quan
tities, and then resells, usually in smaller quantities, but 
never to the ultimate consumer. He sells either to a 
"jobber," a sort of middleman, or to a "retailer," who in 
turn sells to the consumer. Fischbach Brewing Co. v. 
City of St. Louis, 231 Mo.App. 793, 95 S.W.2d 335, 340. 
See also Jobber. 
Wholesome. Sound, tending to promote health. Leo
nardi v. A. Habermann Provision Co., 143 Ohio St. 623, 
56 N.E.2d 232, 237, 28 0.0. 511. 
Wholly. Not partially. In a whole or complete manner; 
entirely; completely; perfectly. Exclusively; to the ex
clusion of other things. Equally. Totally; fully. Chica
go & Calumet Dist. Transit Co. v. Mueller, 213 Ind. 530, 
12 N.E.2d 247, 249. 
Wholly and permanently disabled. Term within dis
ability clause of life policy does not mean "partial" or 
"temporary," and is not to be construed literally so as to 
require condition of complete helplessness or utter hope
lessness to be entitled to benefits. See also Disabil ity; 
Total disabili ty; Wholly disabled. 
Wholly dependent. A person is to be regarded as 
"wholly dependent" upon a worker, within meaning of 
compensation acts, when his or her support is derived 
wholly from the worker's wages. Baker v. Western 
Power & Light Co., 147 Kan. 571, 78 P.2d 36, 40. Person 
may be "wholly dependent" on worker though he or she 
may have some slight savings of his or her own, or some 
other minimum property, or be able to make something 
by his or her own service. United States Coal & Coke 
Co. v. Sutton, 268 Ky. 405, 105 S.W.2d 173, 177. 
Wholly destroyed. A building is "wholly destroyed" 
within the meaning of statutes permitting recovery of 
the full amount of a fire insurance policy, when, al
though some part remains standing, it can no longer be 
designated as a building. The words mean totally de
stroyed as a building, although there is not an absolute 
extinction of all its parts. 
Wholly disabled. These words within accident policy do 
not mean a state of complete physical and mental inca
pacity or utter helplessness but mean rather inability to 
do all the substantial and material acts necessary to 
carry on a certain business or occupation or any busi
ness or occupation in a customary and usual manner 
and which acts the insured would be able to perform in 
such manner but for the disability. Total disability. 
See also Disability; Total disability. 
Whore. A woman who practices illicit sexual inter
course, either for hire or to gratify a depraved passion. 
A woman given to promiscuous intercourse. A woman 
who practices unlawful commerce with men, particular
ly one who does so for hire; a harlot; a concubine; a 
prostitute.

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WHOREMASTER 
Whoremaster. Ordinarily, one who practices lewdness; 
also, one who keeps or procures whores for others; a 
pimp; a procurer. 
Wic. A place on the sea-shore or the bank of a river. 
Wica. A country house or farm. 
Wick. Sax. A village, town, or district. Hence, in 
composition, the territory over which a given jurisdic
tion extends. Thus, "bailiwick" is the territorial juris
diction of a bailiff or sheriff or constable. "Sher iff-wick" 
was also used in the old books. 
Widen. To increase in width; to extend. 
Widow. A woman whose husband is dead, and who has 
not remarried. 
Widower. A man who has lost his wife by death and has 
not married again. 
Widowhood. The state or condition of being a widow, 
or, sometimes, a widower. An estate is sometimes set
tied upon a woman "during widowhood," which is ex
pressed in Latin, "durante viduitate. " 
Widow's allowance. The amount of money or property 
which a widow may claim from her husband's estate, 
free of all claims. State statutes govern the amount and 
conditions of the allowance. It is for her support and 
maintenance. 
Widow's election. In most states, a widow may either 
take her share under her husband's will or waive his 
will and claim her statutory share which commonly is 
an amount equal to what she would receive if he had 
died intestate. See Election by spouse. 
Wifa Iwayf�/. L. Lat. In old English law, a mark or 
sign; a mark set up on land, to denote an exclusive 
occupation, or to prohibit entry. 
Wife. A woman united to a man by marriage; a woman 
who has a husband living and undivorced. The correla
tive term is "husband." See also Common-law wife. 
Wife's part. See Legitime. 
Wigreve /wigriyv/. In old English law, the overseer of a 
wood. 
Wild animals (or animals terre naturre). Animals of an 
untamable disposition; animals in a state of nature. 
See Ferae naturae. 
Wildcat strike. A strike called without authorization 
from the union or in violation of a no-strike clause in 
the collective bargaining agreement. See also Strike. 
Wild land. Land in a state of nature, as distinguished 
from improved or cultivated land. 
Wild's case, rule in. A devise to B. and his children or 
issue, B. having no issue at the time of the devise, gives 
him an estate tail; but, if he have issue at the time, B. 
and his children take joint estates for life. 
Will, v. An auxiliary verb commonly having the manda
tory sense of "shall" or "must." It is a word of certain
ty, while the word "may" is one of speculation and 
uncertainty. 
1598 
Will, n. Wish; desire; pleasure; inclination; choice; the 
faculty of conscious, and especially of deliberate, action. 
When a person expresses his "will" that a particular 
disposition be made of his property, his words are words 
of command, and the word "will" as so used is mandato
ry, comprehensive, and dispositive in nature. 
An instrument by which a person makes a disposition 
of his real and personal property, to take effect after his 
death, and which by its own nature is ambulatory and 
revocable during his lifetime. In re Brown's Estate, 
Tex.Civ.App., 507 S.W.2d 801, 803. 
The legal expression or declaration of a person's mind 
or wishes as to the disposition of his property, to be 
performed or take effect after his death. A revocable 
instrument by which a person makes disposition of his 
property to take effect after his death. Howard's Ex'r v. 
Dempster, 246 Ky. 153, 54 S.W.2d 660, 661. A written 
instrument executed with the formalities required by 
statutes, whereby a person makes a disposition of his 
property (real and personal) to take effect after his 
death. 
For competency to make will, see Competent. 
See also Codicil; Conditional will; Duplicate will; Last 
will; Lost will; Mariner's will; Mutual wills; No contest 
clause; Nuncupative will; Publication; Reciprocal will; 
Revocation of will; Sailor'S will; Simultaneous death 
clause; Witness (Witness to will ). 
Ambulatory will. A changeable will (ambulatoria vo
lun tas), the phrase merely denoting the power which a 
testator possesses of altering his will during his life
time. 
Antenuptial will. See that title. 
Conditional will. A conditional disposition is one which 
depends upon the occurrence of some uncertain event, 
by which it is either to take effect or to be defeated. If 
the happening of an event named in a will is the reason 
for making the will, it is "unconditional"; but, if the 
testator intends to dispose of his property in case the 
event happens, the will is "conditionaL" 
Conjoint will. See Joint will, below. 
Contingent will. A will which is to take effect only 
upon the happening of a specified contingency. In re 
Craft's Estate, Tex.Civ.App., 358 S.W.2d 732, 734. 
Counter wills. Another name for "double," "mutual," 
or "reciprocal" wills. 
Double will. Called also a "counter," "mutual," or 
"reciprocal" wilL See Double will. 
Estate at will. This estate entitles the grantee or lessee 
to the possession of land during the pleasure of both the 
grantor and himself, yet it creates no sure or durable 
right, and is bounded by no definite limits as to dura
tion. It must be at the reciprocal will of both parties 
(for, if it be at the will of the lessor only, it is a lease for 
life), and the dissent of either determines it. 
Holographic will. One that is entirely written, dated, 
and signed by the hand of the testator himself. Some
times spelled "olographic." See Holograph.

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1599 
Joint and mutual (or reciprocal) will. One executed 
jointly by two persons with reciprocal provisions, which 
shows on its face that the devises are made one in 
consideration of the other. Wetzel v. Watson, W.Va., 
328 S.E.2d 526, 529. Joint will is one in which the same 
instrument is executed by two persons as their respec
tive wills; mutual wills are the separate wills of two 
persons, more or less reciprocal in their provisions. 
Word "joint" goes to form, and word "mutual" goes to 
substance of what is called "joint and mutual will." 
Larison v. Record, 3 Dist., 141 Ill.App.3d 477, 95 Ill.Dec. 
363, 365, 489 N .E.2d 925, 927. See also Mutual will, 
below. 
Joint will. One where the same instrument is made the 
will of two or more persons and is jointly signed by 
them. Such wills are usually executed to make testa
mentary disposition of joint property. A joint or con
joint will is a testamentary instrument executed by two 
or more persons, in pursuance of a common intention, 
for the purpose of disposing of their several interests in 
property owned by them in common, or of their separate 
property treated as a common fund, to a third person or 
persons. 
Living will. A document which governs the withhold
ing or withdrawal of life-sustaining treatment from an 
individual in the event of an incurable or irreversible 
condition that will cause death within a relatively short 
time, and when such person is no longer able to make 
decisions regarding his or her medical treatment. Liv
ing wills are permitted by statute in most states. Cru
zan v. Missouri, 110 S.Ct. - (1990). See Uniform Rights 
of the Terminally III Act (Uniform Laws Annotated). 
See also Right to die laws. 
Mutual and reciprocal will. See Joint and mutual (or 
reciprocal) will, above; also Mutual will, below. 
Mutual will. One in which two or more persons make 
mutual or reciprocal provisions in favor of each other. 
"Mutual wills" are the separate wills of two persons 
which are reciprocal in their provisions, and such a will 
may be both joint and mutual. Sometimes called a 
"reciprocal," "double," or "counter" will. See also Joint 
and mutual (or reciprocal) will, above. 
Mystic will. See Testament. 
Non-intervention will. In some jurisdictions, one autho
rizing the executor to act without bond and to manage, 
control, and settle the estate without the intervention of 
any court whatsoever. 
Nuncupative will. See that title. 
Reciprocal will. One in which two or more persons 
make mutual or reciprocal provisions in favor of each 
other. Also known as a "mutual," "double," or "coun
ter" will. See Joint and mutual (or reciprocal) will; 
Mu tual will, above. 
Renunciation of will. See Renunciation. 
Self-proved wills. A will which eliminates some of the 
formalities of proof by execution in compliance with 
statute. It is made self-proved by affidavit of attesting 
witnesses in the form prescribed by statute. Most stat-
WILLFUL 
utes provide that, unless contested, such a will may be 
admitted to probate without testimony of subscribing 
witnesses. See e.g. Uniform Probate Code, § 2-504. 
Statute of will. See Wills Act, infra. 
Unofficious will. In the civil law, testamentum inoffici
um. One made in disregard of natural obligations as to 
inheritance. 2 Bl.Comm. 502. It has no place in the 
common law. 
Criminal Law 
The power of the mind which directs the action of a 
man. See Willful. 
Will contest. A direct attack upon a decree admitting a 
will to probate. Estate of Morris, Tex.Civ.App., 577 
S.W.2d 748, 752. Any kind of litigated controversy 
concerning the eligibility of an instrument to probate as 
distinguished from validity of the contents of the will. 
In re Hesse's Estate, 62 Ariz. 273, 157 P.2d 347, 349. 
Will contests are commonly governed by state statutes; 
e.g. Uniform Probate Code § 3-407, burden of proof. 
Willful. Proceeding from a conscious motion of the will; 
voluntary; knowingly; deliberate. Intending the result 
which actually comes to pass; designed; intentional; 
purposeful; not accidental or involuntary. 
Premeditated; malicious; done with evil intent, or 
with a bad motive or purpose, or with indifference to the 
natural consequences; unlawful; without legal justifica
tion. 
An act or omission is "willfully" done, if done volun
tarily and intentionally and with the specific intent to 
do something the law forbids, or with the specific intent 
to fail to do something the law requires to be done; that 
is to say, with bad purpose either to disobey or to 
disregard the law. It is a word of many meanings, with 
its construction often influenced by its context. Screws 
v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 
L.Ed. 1495. 
A willful act may be described as one done intention
ally, knowingly, and purposely, without justifiable ex
cuse, as distinguished from an act done carelessly, 
thoughtlessly, heedlessly, or inadvertently. A willful 
act differs essentially from a negligent act. The one is 
positive and the other negative. 
Under Bankruptcy Code provision excepting from dis
charge debts "for willful and malicious injury by the 
debtor", 11 U.S.C.A. § 523(a)(6), term "willful" means 
deliberate or intentional, i.e., deliberate or intentional 
act which necessarily leads to injury. In re Salai, 
Bkrtcy.Fla., 50 B.R. 11, 12. 
Act is "willful" within meaning of section of Internal 
Revenue Code imposing penalty for willful failure to pay 
federal income and social security taxes withheld from 
employees if it is voluntary, conscious and intentional; 
no bad motive or intent to defraud the United States 
need be shown, and a ureasonable cause" or "justifiable 
excuse" element has no part in definition. Harrington 
v. U.S., C.A.R.I., 504 F.2d 1306, 1315.

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WILLFUL 
Under the Model Penal Code, a requirement that an 
offense be committed "willfully" is satisfied if a person 
acts knowingly with respect to the material elements of 
the offense, unless a purpose to impose further require
ments appears. M.P.C. § 2.02(8). See also Criminal 
(Criminal intent); Mens rea; Motive; Premeditation. 
In civil actions, the word [willfully] often denotes an 
act which is intentional, or knowing, or voluntary, as 
distinguished from accidental. But when used in a 
criminal context it generally means an act done with a 
bad purpose; without justifiable excuse; stubbornly, ob
stinately, perversely. The word is also employed to 
characterize a thing done without ground for believing it 
is lawful or conduct marked by a careless disregard 
whether or not one has the right so to act. United 
States v. Murdock, 290 U.S. 389, 394, 395, 54 S.Ct. 223, 
225, 78 L.Ed. 381. 
Willful and malicious injury. For such to exist there 
must be an intent to commit a wrong either through 
actual malice or from which malice will be implied. 
Such an injury does not necessarily involve hatred or ill 
will, as a state of mind, but arises from intentional 
wrong committed without just cause or excuse. In re 
Wernecke, D.C.N.Y., 1 F.Supp. 127, 168. It may involve 
merely a willful disregard of what one knows to be his 
duty, an act which is against good morals and wrongful 
in and of itself, and which necessarily causes injury and 
is done intentionally. See also Willful and wanton mis
conduct. 
Willful and wanton act. See Willful and wanton miscon
duct. 
Willful and wanton injury. See Willful and wanton 
misconduct. 
Willful and wanton misconduct. Conduct which is 
committed with an intentional or reckless disregard for 
the safety of others or with an intentional disregard of a 
duty necessary to the safety of another's property. Gi
ers v. Anten, 68 Ill.App.3d 535, 24 Ill.Dec. 878, 386 
N.E.2d 82, 85. Failure to exercise ordinary care to 
prevent injury to a person who is actually known to be 
or reasonably expected to be within the range of a 
dangerous act being done. Georgia Power Co. v. Deese, 
78 Ga.App. 704, 51 S.E.2d 724, 728. Conduct which is 
either intentional or committed under circumstances 
exhibiting a reckless disregard for the safety of others, 
such as a failure, after knowledge of an impending 
danger, to exercise ordinary care to prevent it or a 
failure to discover the dangers through recklessness or 
carelessness when it could have been discovered by the 
exercise of ordinary care. Lewandowski v. Bakey, 32 
Ill.App.3d 26, 335 N.E.2d 572, 574. An aggravated form 
of negligence, differing in quality rather than degree 
from ordinary lack of care. Morgan v. Southern Pac. 
Transp. Co., 37 Cal.App.3d 1006, 112 Cal.Rptr. 695, 698. 
Willful and wanton negligence. Failure to exercise 
ordinary care to prevent injury to a person who is 
actually known to be, or reasonably is expected to be, 
within range of a known danger. Barall Food Stores v. 
1600 
Bennett, 194 Okl. 508, 153 P.2d 106, 109, 110. See also 
Negligence; Willful and wanton misconduct. 
Willful blindness. In criminal law, a term used to refer 
to a situation where the defendant tries to avoid know
ing something that will incriminate. It is usually held 
in this situation that the defendant "knows" anyway 
because he is aware of a high probability of its existence. 
See Model Penal Code § 2.02(7). See also Recklessly. 
Willful, deliberate and premeditated. A criterion used 
in many jurisdictions to separate first from second de
gree murder. The Model Penal Code rejects this con
cept. See Premeditation. 
Willful indifference to the safety of others. See Willful 
and wanton misconduct. 
Willfully and knowingly. An act is done willfully and 
knowingly when the actor intends to do it and knows 
the nature of the act. Deliberately. See Willful. 
Willful misconduct of employee. Under workers' com
pensation acts, precluding compensation, means more 
than mere negligence, and contemplates the intentional 
doing of something with knowledge that it is likely to 
result in serious injuries, or with reckless disregard of 
its probable consequences. "Wilful misconduct" disqual
ifying claimant for unemployment compensation in
volves: (1) wanton and wilful disregard of employer's 
interest, (2) deliberate violation of rules, (3) disregard of 
standards of behavior which an employer can rightfully 
expect from his employee, or (4) negligence which mani
fests culpability, wrongful intent, evil design, or inten
tional and substantial disregard for employer's interests 
or the employee's duties and obligations. Wilson v. 
Com. Unemployment Compensation Bd. of Review, 15 
Pa.Cmwlth. 314, 325 A.2d 500, 501. 
Willful murder. The unlawful and intentional killing of 
another without excuse or mitigating circumstances. 
See also Murder; Premeditation. 
Willful neglect. The intentional disregard of a plain or 
manifest duty, in the performance of which the public or 
the person injured has an interest. 
Willful neglect suggests intentional, conscious, or 
known negligence---a knowing or intentional mistake. 
Puget Sound Painters v. State, 45 Wash.2d 819, 278 P.2d 
302, 303. Within adoption statutes, is neglect that is 
intentional, deliberate, and without just cause or excuse. 
In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 363. 
Willful negligence. See Negligence; also Wanton negli
gence. 
Willfulness. See Willful. 
Willful tort. Term implies intent or purpose to injure. 
It involves elements of intent or purpose and malice or 
ill will, but malice or ill will may be shown by indiffer
ence to safety of others, with knowledge of their danger, 
or failure to use ordinary care to avoid injury after 
acquiring such knowledge. Hillard v. Western & South
ern Life Ins. Co., 68 Ohio App. 426, 34 N.E.2d 75, 77, 23 
0.0. 133. See also Tort (Intentional tort). 
Williams Act. See Tender offer.

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1601 
Willingly. Voluntarily; unreluctantly; without reluc
tance, and of one's own free choice. See Willful. 
As used in an instruction that one cannot invoke the 
doctrine of self-defense if he enters a fight willingly, it 
means voluntarily, aggressively, and without legal ex
cuse. 
Wills Act. In England, the statute 32 Hen. VIII, c. 1, 
passed in 1540, by which persons seized in fee-simple of 
lands holden in socage tenure were enabled to devise the 
same at their will and pleasure, except to bodies corpo
rate; and those who held estates by the tenure of 
chivalry were enabled to devise two-third parts thereof. 
Also, the statute 7 Wm. IV & 1 Vict., c. 26, passed in 
1837, and also called "Lord Langdale's Act." This act 
permits of the disposition by will of every kind of inter
est in real and personal estate, and provides that all 
wills, whether of real or of personal estate, shall be 
attested by two witnesses, and that such attestation 
shall be sufficient. Other important alterations are 
effected by this statute in the law of wills. 
Will substitutes. Documents which purportedly accom
plish what a will is designed to accomplish, e.g. trusts, 
life insurance, joint ownership of property. 
Winchester measure. The standard measure of Eng
land, originally kept at Winchester. 1 Bl.Comm. 274. 
Winchester, Statute of. A statute passed in the thir
teenth year of the reign of Edward I, by which the old 
Saxon law of police was enforced, with many additional 
provisions. It required every man to provide himself 
with armor to aid in keeping the peace; and if it did not 
create the offices of high and petty constables, it recog
nized and regulated them, and charged them with duties 
answering somewhat to those of our militia officers. 
The statute took its name from the ancient capital of the 
kingdom. It was repealed by the Statute of 7 & 8 Geo. 
IV, c. 27. 
Windfall profits tax. A tax imposed on a business or 
industry as a result of a sudden increase in the profits of 
the business. An example includes the tax imposed on 
oil companies in 1980, due to the windfall profits from 
the Arab oil embargo. 
Winding up. Process of settling the accounts and liqui
dating the assets of a partnership or corporation, for the 
purpose of making distribution of net assets to share
holders or partners and dissolving the concern. See 
Liquidation. 
Window. An opening made in the wall of a building to 
admit light and air, and to furnish a view or prospect. 
The use of this word in law is chiefly in connection with 
the doctrine of ancient lights and other rights of adja
cent owners. 
Window tax. In England, a tax on windows, formerly 
levied on houses which contained more than six win
dows, and were worth more than £ 5 per annum; estab
lished by St. 7 Wm. III, c. 18. St. 14 & 15 Vict., c. 36, 
substituted for this tax a tax on inhabited houses. 
Wind up. See Winding up. 
WITENAGEMOTE 
Wiretapping. A form of electronic or mechanical eaves
dropping where, upon court order, law enforcement offi
cials surreptitiously listen to phone calls or other con
versations or communications of persons. Federal (18 
U.S.C.A. § 2510 et seq.) and similar state statutes gov
ern the circumstances and procedures under which wire
taps will be permitted. See also Eavesdropping; Pen 
register. 
Wish. Eager desire; longing; expression of desire; a 
thing desired; an object of desire. As used in wills, it is 
sometimes merely directory or precatory; and some
times mandatory; being equivalent to "will," to "give" 
or "devise." 
Wista. In Saxon law, half a hide of land, or sixty acres. 
Wit. To know; to learn; to be informed. Used only in 
the infinitive, to wit, which term is equivalent to "that is 
to say," "namely," or "videlicet." 
Witam /wit�m/. The purgation from an offense by the 
oath of the requisite number of witnesses. 
Witan /wit�n/. In Saxon law, wise men; persons of 
information, especially in the laws; the king's advisers; 
members of the king's council; the optimates, or princi
pal men of the kingdom. 
Witchcraft. Under English Sts. 33 Hen. VIII, c. 8, and 1 
Jac. I, c. 12, the offense of witchcraft, or supposed 
intercourse with evil spirits, was punishable with death. 
These acts were not repealed until 1736. 4 Bl.Comm. 
60, 61. In Salem, Massachusetts in 1692, 20 persons 
were put to death by hanging for such offense. The last 
victims in England were executed in 1716, and the last 
in Scotland in 1722. 
Wite /wayt/. Sax. A punishment, pain, penalty, mulct, 
or criminal fine. 
An atonement among the early Germans by a wrong
doer to the king or the community. It is said to be the 
germ of the idea that wrong is not simply the affair of 
the in jured individual, and is therefore a condition 
precedent to the growth of a criminal law. 
Witekden. A taxation of the West Saxons, imposed by 
the public council of the kingdom. 
Witena dom /wit�n� d6wm/. In Saxon law, the judg
ment of the county court, or other court of competent 
jurisdiction, on the title to property, real or personal. 
Witenagemote /wit;m�g�mowt/. (Spelled, also, witena
gemot, wittenagemot, witanagemote, etc.) "The assembly 
of wise men." This was the great national council or 
parliament of the Saxons in England, comprising the 
noblemen, high ecclesiastics, and other great thanes of 
the kingdom, advising and aiding the king in the gener
al administration of government. 
It was the grand council of the kingdom, and was held, 
generally, in the open air, by public notice or particular 
summons, in or near some city or populous town. These 
notices or summonses were issued upon determination 
by the king's select council, or the body met without 
notice, when the throne was vacant, to elect a new king. 
Subsequently to the Norman Conquest it was called

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WITENAGEMOTE 
commune concilium regni, curia regis and finally par
liament; but its character had become considerably 
changed. It was a court of last resort, more especially 
for determining disputes between the king and his 
thanes, and, ultimately, from all inferior tribunals. 
Great offenders, particularly those who were members 
of or might be summoned to the king's court, were here 
tried. The casual loss of title-deeds was supplied, and a 
very extensive equity jurisdiction exercised. 1 Bl. 
Comm. 147. It passed out of existence with the Norman 
Conquest, and the subsequent Parliament was a sepa
rate growth, and not a continuation of the Witenagemot. 
Witens /wit;}nz/. The chiefs of the Saxon lords or 
thanes, their nobles, and wise men. 
With. A word denoting a relation of proximity, conti
guity, or association. White v. White, 183 Va. 239, 31 
S.E.2d 558, 561. Sometimes equivalent to the words, "in 
addition to," but not synonymous with "including," as in 
a complaint demanding a specified sum, "with interest." 
Halpern v. Langrock Bros. Co., 169 App.Div. 464, 155 
N.Y.S. 167, 168. 
With all faults. This phrase, used in a contract of sale, 
implies that the purchaser assumes the risk of all de
fects and imperfections, provided they do not destroy the 
identity of the thing sold. See also As is. 
With consent. Phrase within a constitution providing 
that Governor shall appoint officers with consent of 
senate, requires confirmation by senate and appoint
ment under such provision is ineffective until confirmed. 
State, ex reI. Nagle v. Stafford, 97 Mont. 275, 34 P.2d 
372, 379. See also Consent. 
Withdraw. To take away what has been enjoyed; to 
take from. To remove, as deposits from bank, or oneself 
from competition, candidacy, etc. 
Withdrawal. Removal of money or securities from a 
bank or other place of deposit. 
Withdrawal from criminal activity. A person is not 
legally accountable for the criminal conduct of another 
if before the commission of the offense, he terminates 
his efforts to promote such commission and gives a 
warning to law enforcement officials or ' makes a proper 
effort to prevent the criminal activity. Ill.Ann.St. 
n 5-2(c)(3). Vnder Model Penal Code, § 5.0 1(4), with
drawal is an affirmative defense which requires a show
ing of a complete and voluntary renunciation of defen
dant's criminal purpose. See also Renunciation of crimi
nal purpose. 
Withdrawal from a conspiracy requires either making 
a clean breast to authorities or communicating the 
abandonment of the conspiracy in manner reasonably 
calculated to reach co-conspirators. V.S. v. Mardian, 
C.A.D.C., 546 F.2d 973, 978. 
Withdrawal of charges. A failure to prosecute by the 
person preferring charges-distinguished from a dismis
sal, which is a determination of their invalidity by the 
tribunal hearing them. See Nolle prosequi. 
1602 
Withdrawing a juror. The withdrawing of one of the 
twelve jurors from the box, with the result that, the jury 
being then found to be incomplete, no further proceed
ings could be had in the cause. The withdrawing of a 
juror was always by the agreement of the parties, and 
was frequently done at the recommendation of the 
judge, where it was doubtful whether the action would 
lie; and in such case the consequence was that each 
party payed his own costs. It was, however, no bar to a 
future action for the same cause. In American practice, 
it was formerly usually a mere method of continuing a 
case, for some good reason. 
Withdrawing record. The withdrawing by a plaintiff of 
the nisi prius or trial record filed in a cause, just before 
the trial is entered upon, for the purpose of preventing 
the cause from being tried. This may be done before the 
jury are sworn, and afterwards, by consent of the defen
dant's counsel. For current practice, see Dismissal. 
Withernam /wio;}rn;}m/. A taking by way of reprisal; a 
taking or a reprisal of other goods, in lieu of those that 
were formerly taken and eloigned or withholden. A 
reciprocal distress, in lieu of a previous one which has 
been eloigned. 3 Bl.Comm. 148. 
The name of a writ which issues on the return of 
elongata to an alias or pluries writ of replevin, by which 
the sheriff is commanded to take the defendant's own 
goods which may be found in his bailiwick, and keep 
them safely, not to deliver them to the plaintiff until 
such time as the defendant chooses to submit himself 
and allow the distress, and the whole of it to be replev
ied; and he is thereby further commanded that he do 
return to the court in what manner he shall have 
executed the writ. 
Withersake /wio;}rseyk/. An apostate, or perfidious ren
egade. 
Withhold. To retain in one's possession that which 
belongs to or is claimed or sought by another. To omit 
to disclose upon request; as, to withhold information. 
To refrain from paying that which is due. 
Withholding. Deductions from salaries or wages, usual
ly for income taxes and social security contributions, to 
be remitted by the employer, in the employee's name, to 
the taxing authority. 
Withholding of evidence. It is an obstruction of justice 
to stifle, suppress or destroy evidence knowing that it 
may be wanted in a judicial proceeding or is being 
sought by investigating officers, or to remove records 
from the jurisdiction of the court, knowing they will be 
called for by the grand jury in its investigation. V nited 
States v. Perlstein, 126 F.2d 799; Commonwealth v. 
Russo, 177 Pa.Super. 470, 111 A.2d 359. See e.g. 18 
V.S.C.A. §§ 1506, 1512. See also Suppression of evidence. 
Withholding tax. See Withholding. 
Within. Into. In inner or interior part of, or not longer 
in time than. Through. Inside the limits of; during the 
time of. 
When used relative to time, has been defined various
ly as meaning any time before; at or before; at the end

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1603 
of; before the expiration of; not beyond; not exceeding; 
not later than. Glenn v. Garrett, Tex.Civ.App., 84 
S.W.2d 515, 516. 
Without. Outside; beyond; in excess of. 
Without day. A term used to signify that an adjourn
ment or continuance is indefinite or final, or that no 
subsequent time is fixed for another meeting, or for 
further proceedings. See Sine die. 
Without delay. Instantly; at once. Also, within the 
time allowed by law. 
Without her consent. This phrase, as used in the law of 
rape, is equivalent to "against the will." 
Without impeachment of waste. The effect of the 
insertion of this clause in a lease for life is to give the 
tenant the right to cut timber on the estate, without 
making himself thereby liable to an action for waste. 
When a tenant for life holds the land without impeach
ment of waste, he is, of course, dispunishable for waste, 
whether wilful or otherwise. But still this right must 
not be wantonly abused so as to destroy the estate; and 
he will be enjoined from committing malicious waste. 
Without notice. As used of purchasers, etc., such lan
guage is equivalent to "in good faith." To be a holder in 
due course, one must take a bill or note "without notice" 
that it is overdue or has been dishonored or of any 
defense against or claim to it on the part of any person. 
See U.C.C. §§ 3-302(1)(c), 3-304(3). See also Good faith; 
Notice. 
Without prejudice. Where an offer or admission is 
made "without prejudice," or a motion is denied or a 
suit dismissed "without prejudice," it is meant as a 
declaration that no rights or privileges of the party 
concerned are to be considered as thereby waived or lost 
except in so far as may be expressly conceded or decided. 
The words "without prejudice" import into any transac
tion that the parties have agreed that as between them
selves the receipt of money by one and its payment by 
the other shall not of themselves have any legal effect 
on the rights of the parties, but they shall be open to 
settlement by legal controversy as if the money had not 
been paid. In re Bell, 344 Pa. 223, 25 A.2d 344, 350. 
A dismissal "without prejudice" allows a new suit to 
be brought on the same cause of action. The words 
"without pre judice", as used in judgment, ordinarily 
import the contemplation of further proceedings, and, 
when they appear in an order or decree, it shows that 
the judicial act is not intended to be res judicata of the 
merits of the controversy. Fiumara v. American Surety 
Co. of New York, 346 Pa. 584, 31 A.2d 283, 287. 
Compare With prejudice. 
Without recourse. Words that may be used by a drawer 
in signing a draft or check so as to eliminate completely 
the drawer's secondary liability. This phrase, used in 
making a qualified indorsement of a negotiable instru
ment, signifies that the indorser means to save himself 
from liability to subsequent holders, and is a notification 
that, if payment is refused by the parties primarily 
WITNESS 
liable, recourse cannot be had to him. See U.C.C. 
§ 3-4 14(1). 
An indorser "without recourse" specially declines to 
assume any responsibility for payment. He assumes no 
contractual liability by virtue of the indorsement itself, 
and becomes a mere assignor of the title to the paper, 
but such an indorsement does not indicate that the 
indorsee takes with notice of defects, or that he does not 
take on credit of the other parties to the note. 
See also Nonrecourse; Nonrecourse loan; With re
course. 
Without reserve. A term applied to a sale by auction, 
indicating that no price is reserved. 
Without stint. Without limit; without any specified 
number. 
Without this, that. In common law pleading, formal 
words used by way of traverse, particularly by way of 
special traverse, importing an express denial of some 
matter of fact alleged in a previous pleading, including 
the declaration, plea, replication, etc. The Latin term is 
absque hoc. 
With prejudice. Phrase "with prejudice," as used in 
context in which an action is dismissed with prejudice, 
means an adjudication on merits and final disposition, 
barring right to bring or maintain an action on same 
claim or cause. Foundry Systems & Supply, Inc. v. 
Industry Development Corp., 124 Ga.App. 589, 185 
S.E.2d 94, 95. Addition of the words "with prejudice" to 
order granting motion to dismiss complaint indicates 
finality for purposes of appeaL Segal v. Garrigues, 
Fla.App., 320 So.2d 475, 476. Compare Without prejudice. 
With recourse. Term which may be used in indorsing 
negotiable instrument and by which the indorser indi
cates that he remains liable for payment of the instru
ment. See also Recourse; Compare Without recourse. 
With strong hand. In common law pleading, a techni
cal phrase indispensable in describing a forcible entry in 
an indictment. No other word or circumlocution would 
answer the same purpose. 
Witness, v. To subscribe one's name to a deed, will, or 
other document, for the purpose of attesting its authen
ticity, and proving its execution, if required, by bearing 
witness thereto. See also Affirmation; Attest; Jurat; Veri
fication. 
Witness, n. In general, one who, being present, person
ally sees or perceives a thing; a beholder, spectator, or 
eyewitness. One who is called to testify before a court. 
People v. Ruiz, 100 Misc.2d 562, 419 N.Y.S.2d 864, 866. 
One who testifies to what he has seen, heard, or other
wise observed. Wigginton v. Order of United Commer
cial Travelers of America, C.C.A.Ind., 126 F.2d 659, 666. 
A person whose declaration under oath (or affirma
tion) is received as evidence for any purpose, whether 
such declaration be made on oral examination or by 
deposition or affidavit. Code Civ.Proc.Cal. § 1878.

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WITNESS 
A person attesting genuineness of signature to doc
ument by adding his signature. In re Gorrell's Estate, 
19 N.J.Misc. 168, 19 A.2d 334, 335. 
One who is called upon to be present at a transaction, 
or the making of a will. He may thereafter, if neces
sary, testify to the transaction. 
See also Accomplice witness; Competency; Competent 
witness; Expert witness; Hostile or adverse witness; Lay 
witness; Prosecuting witness; Subscribing witness; Swift 
witness; Target witness; Witness Protection Act; Witness 
tampering. 
Adverse witness. See Adverse witness; Hostile or adverse 
witness. 
Alibi witness. See Fed.R.Crim.P. 12.1. See also Alibi. 
Attesting witness. See Attestation. 
Character witness. In criminal cases, the accused is 
entitled to use character evidence in presenting the 
defense. The accused is· entitled to show character 
traits inconsistent with the crime charged. Fed.R.Evid. 
404(a)(1). The Federal Rules of Evidence and a majority 
of jurisdictions permit proof of character either by repu
tation or by receiving the opinion of persons who are 
sufficiently familiar with the accused to be able to 
testify concerning the trait in question. Fed.R.Evid. 
405(a). V.S. v. Morgan, C.A.N.Y. (2nd Cir.) 554 F.2d 31, 
cert. denied, 434 V.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450. 
Both the reputation witness who testifies as to the 
accused person's community reputation and the opinion 
witness who testifies that in his opinion the accused 
possesses certain character traits are generically re
ferred to as "character witnesses." See also Fed.R.Evid. 
607-609. 
Competent witness. See Competency; Competent witness. 
Credible witness. See Competency; Competent witness; 
Credible. 
Grand jury witness. A person called to give evidence 
regarding matters under inquiry by the grand jury. 
State v. Hogervorst, 90 N.M. 580, 566 P.2d 828, 831. 
Immunity of witnesses. See Immunity. 
Material witness. In criminal trial, a witness whose 
testimony is crucial to either the defense or prosecution. 
In most states, he may be required to furnish bond for 
his appearance and, for want of surety, he may be 
confined until he testifies. See also Material witness. 
Witness to will. One who has attested the will by 
subscribing his name thereto. The trend in state stat
utes is to require two witnesses to attest to the signing 
of the will. See e.g. V niform Probate Code § 2-502. See 
also Attestation clause. 
Witness against oneself. See Immunity; Self-incrimina
tion. 
Witnessing part. In a deed or other formal instrument, 
is that part which comes after the recitals, or, where 
there are no recitals, after the parties. It usually com
mences with a reference to the agreement or intention 
to be effectuated, then states or refers to the considera
tion, and concludes with the operative words and par
cels, if any. Where a deed effectuates two distinct 
objects, there are two witnessing parts. 
1604 
Witness Protection Act. Federal law which establishes 
the manner in which the Attorney General may provide 
for relocation and other protection of a witness or a 
potential witness for the federal government or for a 
state government in an official proceeding concerning 
an organized criminal activity or other serious offense. 
See 18 V.S.C.A. § 3521 et seq. 
Witness tampering. The federal Victim and Witness 
Protection Act prohibits the intimidation and harass
ment of witnesses before they testify, as well as prohibit
ing retaliation, or threats of retaliation, against witness
es after they testify. 18 V.S.C.A. § 1512-1515. 
Wittingly. With knowledge and by design, excluding 
only cases which are the result of accident or forgetful
ness, and including cases where one does an unlawful 
act through an erroneous belief of his right. 
Witword /witw�rd/. A legally allowed claim, more espe
cially the right to vindicate ownership or possession by 
one's affirmation under oath. 
Wolf's head. In old English law, this term was used as 
descriptive of the condition of an outlaw. Such persons 
were said to carry a wolfs head (caput lupinum); for if 
caught alive they were to be brought to the king, and if 
they defended themselves they might be slain and their 
heads carried to the king, for they were no more to be 
accounted of than wolves. "Woolferthfod." 
Wong. Sax. In old records, a field. 
Wood-corn. In old records, a certain quantity of oats or 
other grain, paid by customary tenants to the lord, for 
liberty to pick up dead or broken wood. 
Wood-geld. In old English law, money paid for the 
liberty of taking wood in a forest. Immunity from such 
payment. 
Wood leave. A license or right to cut down, remove, and 
use standing timber on a given estate or tract of land. 
Also called Timber rights. 
Wood-mote. In forest law, the old name of the court of 
attachments; otherwise called the "Forty-Days Court." 
3 Bl.Comm. 71. 
Wood plea court. In old English law, a court held twice 
in the year in the forest of Clun, in Shropshire, for 
determining all matters of wood and agistments. 
Woods. A forest; land covered with a large and thick 
collection of natural forest trees. The old books say that 
a grant of "all his woods" (omnes boscos suos) will pass 
the land, as well as the trees growing upon it. 
Woodwards. In English law, officers of the forest, 
whose duty consists in looking after the wood and vert 
and venison, and preventing offenses relating to the 
same. 
Words. Symbols indicating ideas and subject to contrac
tion and expansion to meet the idea sought to be ex
pressed. Such have been referred to as labels whose 
content and meaning are continually shifting with the 
times. Massachusetts Protective Ass'n v. Bayersdorfer, 
C.C.A.Ohio, 105 F.2d 595, 597.

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1605 
As used in law, this term generally signifies the tech
nical terms and phrases appropriate to particular in
struments, or aptly fitted to the expression of a particu
lar intention in legal instruments. See the subtitles 
following. 
Words actionable in themselves. In libel and slander, 
refer to words which are libelous or slanderous per se. 
See Actionable per se; Libelous per se. 
Words of art. The vocabulary or terminology of a par
ticular art, science, or profession, and especially those 
expressions which are idiomatic or peculiar to it. For 
example, in law "Taking the Fifth" means that a person 
is asserting his or her Fifth Amendment protection 
against self-incrimination. 
Words of limitation. See Limitation. 
Words of negotiability. The language used in making 
an instrument payable to order or to bearer. See V.C.C. 
§§ 3-110 & 3-1 11. As applied to documents, language 
therein providing that the goods are to be delivered to 
bearer or to the order of a named person. See V.C.C. 
§ 7-104(1)(a). 
Words of procreation. To create an estate tail by deed, 
it is necessary that words of procreation should be used 
in order to confine the estate to the descendants of the 
first grantee, as in the usual form of limitation,-"to A. 
and the heirs of his body." 
Words of purchase. See Purchase. 
Work. To exert one's self for a purpose; to put forth 
effort for the attainment of an object; to be engaged in 
the p!}rformance of a task, duty, or the like. The term 
covers all forms of physical or mental exertions, or both 
combined, for the attainment of some object other than 
recreation or amusement. Tennessee Coal, Iron & R. 
Co. v. Muscoda Local No. 123, Ala., 321 V.S. 590, 64 
S.Ct. 698, 703, 705, 88 L.Ed. 949. 
"Work" or "employ" for purposes of determining em
ployee's right to compensation means physical and men
tal exertion controlled or required by employer and 
pursued necessarily and primarily for benefit of employ
er and business. Phillips v. Lake County, 222 Mont. 42, 
721 P.2d 326, 334. See also Labor. 
Work and labor� The name of one of the common 
counts in actions of assumpsit, being for work and labor 
done and materials furnished by the plaintiff for the 
defendant. 
Workaway. Extra man employed on vessel as an accom
modation to himself. The Tashmoo, D.C.N.Y., 48 F.2d 
366, 368. 
Worker. One who labors; an employee; one employed 
to do work for another. See also Employee; Servant. 
Workers' Compensation Acts. State and federal stat
utes which provide for fixed awards to employees or 
their dependents in case of employment related acci
dents and diseases, dispensing with need by employee to 
bring legal action and prove negligence on part of the 
employer. Some of the statutes go beyond the simple 
determination of the right to compensation, and provide 
WORKING PAPERS 
insurance systems, either under state supervision or 
otherwise. The various state acts vary as to extent of 
workers and employment covered, amount and duration 
of benefits, etc. 
The effect of most workers' compensation acts is to 
make the employer strictly liable to an employee for 
injuries sustained by the employee which arise out of 
and in the course of employment, without regard to the 
negligence of the employer or that of the employee. 
Where the statute applies, it has been uniformly held 
that this remedy is exclusive and bars any common-law 
remedy which the employee may have had, the compen
sation scheduled under the act being the sole measure of 
damage. 
Federal employees are covered by the Federal Employ
ees Compensation Act; seamen by the Jones Act; long
shore and harbor workers by the Longshore and Harbor 
Workers' Compensation Act. The FECA and LHWCA 
are administered by the federal Office of Workers' Com
pensation Programs. Additional benefits to disabled 
workers are provided under Title II of the Social Securi
ty Act. 
See also Employers' liabili ty acts. 
Workers' compensation boards or courts. Such exist 
in most states with jurisdiction to review cases arising 
under workers' compensation acts and related rules and 
regulations. 
Workers' compensation insurance. Insurance cover
age purchased by employers to cover risks under work
ers' compensation laws. Such is usually mandated by 
state acts, unless the employer is self-insured. See also 
Insurance. 
Work furlough. A prison treatment program that al
lows inmates to be released during the day to work in 
the community. 
Workhouse. Place of confinement for persons 'convicted 
of lesser offenses. Such imprisonment is usually for a 
relatively short duration. 
Working capital. A firm's investment in current assets, 
such as cash, accounts receivable, inventory, etc. The 
net working capital is the difference between the cur
rent assets and current liabilities. Such represents the 
amount of cash, materials, and supplies ordinarily re
quired by a business in its day-to-day business operation 
to meet current expenses and such contingencies as may 
typically develop. South Hinds Water Co. v. Mississippi 
Public Service Com'n, Miss., 422 So.2d 275, 283. 
Working interest. The rights to the mineral interest 
granted by an oil and gas lease, so-called because the 
lessee acquires the right to work on the lease property to 
search, develop and produce oil and gas and the obli
gation to pay all costs). See also Royalty. 
Working papers. Valid employment certificate. By 
statute in certain states, such document must be filed by 
one employing a minor; e.g. N.Y. Labor Law, § 132(2). 
See also Work permit. 
In accounting, the re�ords kept by an independent 
auditor of the procedures followed, tests performed, in-

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WORKING PAPERS 
formation obtained, and conclusions reached pertinent 
to his or her examination. 
Discovery. See Work product rule. 
Work-in-process. Products being manufactured or as
sembled, but not yet completed. 
Work made for hire. As defined by the Copyright Act 
(17 U.S.C.A. § 101), is: (1) a work prepared by an em
ployee within the scope of his or her employment; or (2) 
a work specially ordered or commissioned for use as a 
contribution to a collective work, as a part of a motion 
picture or other audiovisual work, as a translation, as a 
supplementary work, as a compilation, as an instruc
tional text, as a test, as answer material for a test, or as 
an atlas, if the parties expressly agree in a written 
instrument signed by them that the work shall be con
sidered a work made for hire. 
Work of necessity. As excepted from operation of Sun
day closing statutes embraces all work reasonably essen
tial to the economic, social or moral welfare of the 
people, viewed in light of the habits and customs of the 
age in which they live and of the community in which 
they reside. Francisco v. Commonwealth, 180 Va. 371, 
23 S.E.2d 234, 238, 239. See also Sunday closing laws. 
Workout. In bankruptcy, an out-of-court negotiation 
with creditors whereby a debtor enters into an agree
ment with a creditor or creditors for a payment or plan 
to discharge the debtor's debt(s). 
Term is also used to refer to restructuring or refinanc
ing by banks of nonperforming or overdue loans of 
creditors. 
Work permit. Documentary authorization to work giv
en to an alien by the Immigration and Naturalization 
Service (INS). It is unlawful for an employer to hire an 
alien who lacks INS work authorization. Immigration 
Reform and Control Act of 1986 (IRCA), 8 U.S.C.A. 
§ 1324a(a)(1). See also Working papers. 
Work product rule. Under this rule any notes, working 
papers, memoranda or similar materials, prepared by an 
attorney in anticipation of litigation, are protected from 
discovery. Fed.R.Civ.Proc. 26(b)(3). See Hickman v. 
Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. Most 
states have codified the work product rule in some form 
either by statute or court rule. This rule has been 
interpreted to include private memoranda, written state
ments of witnesses and mental impressions of personal 
recollections prepared or formed by attorney in anticipa
tion of litigation or for trial. Com. of Puerto Rico v. S S 
Zoe Colocotroni, D.C.P uerto Rico, 61 F.R.D. 653, 658. 
Work release program. Correctional programs which 
allow an inmate to leave the institution for the purpose 
of continuing regular employment during the daytime, 
but reporting back to lockup nights and weekends. 
Works. A mill, factory, or other establishment for per
forming manufacturing type labor of any sort; also, a 
building, structure, or erection of any kind upon land, as 
in the civil-law phrase "new works." 
1606 
New works. A term of the civil law comprehending 
every sort of edifice or other structure which is newly 
commenced on a given estate or lot. Its importance lies 
chiefly in the fact that a remedy is given ("denunciation 
of new works") to an adjacent proprietor whose property 
would be injured or subjected to a more onerous servi
tude if such a work were allowed to proceed to comple
tion. 
Public works. Works, whether of construction or adap
tation, undertaken and carried out by the national, 
state, or municipal authorities, and designed to subserve 
some purpose of public necessity, use, or convenience; 
such as public buildings, roads, aqueducts, parks, etc. 
All fixed works constructed for public use. The term 
usually relates to the construction of public improve
ments and not to their maintenance or operation. 
Work week. Within Fair Labor Standards Act, a week 
during which work is performed. 29 U.S.C.A. § 207. 
World. This term sometimes denotes all persons whatso
ever who may have, claim, or acquire an interest in the 
subject-matter; as in saying that a judgment in rem 
binds "all the world." 
World Bank. The International Bank for Reconstruc
tion and Development, commonly referred to as the 
World Bank, is an international financial institution 
whose purposes include assisting the development of its 
member nations' territories, promoting and supplement
ing private foreign investment, and promoting long 
range balanced growth in international trade. See 22 
U.S.C.A. § 286; Mendaro v. World Bank, C.A.D.C., 717 
F.2d 610. 
World Court. See International Court of Justice. 
Worldly. Of or pertaining to the world or the present 
state of existence; temporal; earthly; devoted to, inter
ested in, or connected with this present life, and its 
cares, advantages, or pleasures, to the exclusion of those 
of a future life. Concerned with enjoyment of this 
present existence; secular; not religious; spiritual, or 
holy. 
Worrying cattle or sheep. Within statutes providing 
that any one finding a dog, not on the premises of its 
owner, who is worrying cattle or sheep, may kill the dog, 
means to run after; to chase; to bark at. Failing v. 
People, 105 Colo. 399, 98 P.2d 865, 867. The common 
law permitted the killing of a trespassing dog if it was 
found in the act of (1) killing domestic animals, or (2) 
pursuing or worrying domestic animals in an enclosure. 
See Cal.Civ. Code § 3341; Katsaris v. Cook, 180 Cal. 
App.3d 256, 271, 225 Cal.�ptr. 531. 
Worship. Any form of religious service showing rev
erence for Divine Being, or exhortation to obedience to 
or following of the mandates of such Being. Religious 
exercises participated in by a number of persons assem
bled for that purpose, the disturbance of which is a 
statutory offense in many states. 
English law. A title of honor or dignity used in address
es to certain magistrates and other persons of rank or 
office.

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Public worship. This term may mean the worship of 
God, conducted and observed under public authority; or 
it may mean worship in an open or public place, without 
privacy or concealment; or it may mean the perform
ance of religious exercises, under a provision for an 
equal right in the whole public to participate in its 
benefits; or it may be used in contradistinction to wor
ship in the family or the closet. In this country, what is 
called "public worship" is commonly conducted by vol
untary societies, constituted according to their own no
tions of ecclesiastical authority and ritual propriety, 
opening their places of worship, and admitting to their 
religious services such persons, and upon such terms, 
and subject to such regulations, as they may choose to 
designate and establish. A church absolutely belonging 
to the public, and in which all persons without restric
tion have equal rights, such as the public enjoy in 
highways or public landings, is certainly a very rare 
institution. 
Wort or worth. A curtilage or country farm. 
Worth. The quality or value of a thing which gives it 
value. Although "worth" in some connections may 
mean more than pecuniary value, in law it means that 
sum of valuable qualities which renders a thing valuable 
and useful expressed in the current medium of the 
country. Furnishing an equivalent for. See also Net 
worth; Value. 
Worthier title doctrine /w�r(5iy;;,r tayt;;,l/. At common 
law where testator undertook to devise to an heir exact
ly same interest in land as such heir would take by 
descent, descent was regarded as the "worthier title" 
and heir took by descent rather than by devise. Jones v. 
Petrie, 156 Kan. 241, 132 P.2d 396, 398. Doctrine of 
worthier title provides that conveyance by grantor with 
limitation over to grantor's heirs creates reversion in 
grantor, not remainder interest in heirs, and to take by 
descent rather than by purchase, is said to create a 
worthier title. Hatch v. Riggs Nat. Bank, D.C.D.C., 284 
F.Supp. 396, 397. To the extent that it exists today in 
the V nited States, the Doctrine of Worthier Title is a 
rule of construction. That is, applying it is said to turn 
on the intention of the transferor. 
Worthiest of blood. In the English law of descent, a 
term applied to males, expressive of the preference 
given to them over females. See 2 Bl.Comm. 234-240. 
Worthless. Destitute of worth, of no value or use. 
Spring City Foundry Co. v. Commissioner of Internal 
Revenue, 292 V.S. 182, 54 S.Ct. 644, 78 L.Ed. 1200. 
Worthless check. A check drawn on a bank account 
which is no longer open or on an account with funds 
insufficient to cover the check. 
Giving a worthless check is the making, drawing, 
issuing or delivering or causing or directing the making, 
drawing, issuing or delivering of any check, order or 
draft on any bank or depository for the payment of 
money or its equivalent with intent to defraud and 
knowing, at the time of the making, drawing, issuing or 
delivering of such check, order or draft as aforesaid, that 
the maker or drawer has no deposit in or credits with 
WRECK 
such bank or depository or has not sufficient funds in, or 
credits with, such bank or depository for the payment of 
such check, order or draft in full upon its presentation. 
Such act is a misdemeanor in most states. See e.g. 
Model Penal Code, § 224.5. See also Bad check; check 
kiting. 
Worthless securities. A loss (usually capital) is allowed 
for a security that becomes worthless during the year. 
The loss is deemed to have occurred on the last day of 
the year. Special rules apply to securities of affiliated 
companies and small business stock. See I.R.C. § 165. 
Worthy. Having worth; possessing merit; valuable; de
serving of honor, or the like; of high station; of high 
social position; deserved, merited. Woodstown Nat. 
Bank and Trust Co. v. Snelbaker, 136 N.J.Eq. 62, 40 
A.2d 222, 227. 
Would. A word sometimes expressing what might be 
expected or preferred or desired. Often interchangeable 
with the word "should," but not with "could." 
Wound, n. An injury to the body of a person or animal, 
especially one caused by violence, by which the continui
ty of the covering, as skin, mucous membrane, or con
junctiva, is broken. Any breaking up or dispersion, ot 
disintegration of the natural continuity of a tissue of the 
body. Gasperino v. Prudential Ins. Co. of America, 
Mo.App., 107 S.W.2d 819, 827. Also injuries of every 
kind which affect the body, whether they are cuts, 
lacerations, fractures, or bruises. Any lesion of the 
body. 
Wound, v. To inflict a laceration, cut, fracture or bruise. 
Wounded feelings. Such as result from indignities to 
self-respect, sensibilities, or pride of a person, as distin
guished from usual mental pain and suffering conse
quent to physical injury. See also Mental cruelty. 
Wounding. An aggravated species of assault and bat
tery, consisting in one person giving another some dan
gerous hurt. 3 Bl.Comm. 121. 
Wraparound mortgage. A second mortgage which 
wraps around or exists in addition to a first or other 
mortgages. Form of secondary financing typically used 
on older properties having first mortgages with low 
interest rates in which a lender assumes the developer's 
first mortgage obligation and also loans additional mon
ey, taking back from developer a junior mortgage in 
total amount at an intermediate interest rate. ICM 
Realty v. Cabot, Cabot & Forbes Land Trust, D.C.N.Y., 
378 F.Supp. 918, 923. 
Wrath. Not merely anger, but violent anger. 
Wreccum marls significat illa bona qure naufragio ad 
terram pelluntur /rek;;,m mrer;;,s signif;;,k;;,t il;;, bown;;, 
kwiy nofreyj(iy)ow red tehr;;,m pel�nt;;,r/. A wreck of the 
sea signifies those goods which are driven to shore from 
a shipwreck. 
Wreck. To destroy, disable, or seriously damage. To 
reduce to a wreck or ruinous state by any kind of 
violence; to overthrow, shatter, or destroy; to cause to 
crash or suffer ruin, synonymous with ruin, smash, and

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demolish. Its antonyms are save, salvage, and preserve. 
Destruction, disorganization, or serious injury of any
thing, especially by violence. Houston Printing Co. v. 
Hunter, Tex.Civ.App., 105 S.W.2d 312, 317. 
Goods cast ashore by the sea, and not claimed by the 
owner within a year, or other specified period; which, in 
such case, become the property of the state. The term 
applies to property cast upon land by the sea; to jetsam, 
flotsam, and ligan. 
Common law. Goods cast ashore from a wrecked vessel, 
where no person has escaped from the wreck alive; and 
which are forfeited to the crown, or to persons having 
the franchise of wreck. But if claimed by the true 
owner within a year and a day the goods, or their 
proceeds, must be restored to him, by virtue of stat. 
Maritime law. A ship becomes a wreck when, in conse
quence of injuries received, she is rendered absolutely 
unnavigable, or unable to pursue her voyage, without 
repairs exceeding the half of her value. Wood v. Lin
coln & Kennebeck Ins. Co., 6 Mass. 479, 482. A 
"wrecked vessel," however, in common phraseology, in
cludes a sunken vessel. 33 U.S.C.A. § 409 prescribes 
the duties of owners of wrecked vessels. 
Wreckfree. In old English law, exempt from the forfei
ture of shipwrecked goods and vessels to the king. 
Wrench. Violent twist; a sprain and injury by twisting 
as in a joint. Traders & General Ins. Co. v. Lincecum, 
Tex.Civ.App., 126 S.W.2d 692, 695. See also Whiplash 
injury. 
Wrinkle. A stria; furrow; channel; hollow; depression; 
rut; cup; pocket; dimple. 
Writ. A written judicial order to perform a specified act, 
or giving authority to have it done, as in a writ of 
mandamus or certiorari, or as in an "original writ" for 
instituting an action at common law. A written court 
order or a judicial process, directing that a sheriff or 
other judicial officer do what is commanded by the writ; 
or giving authority and commission to have it done. See 
also Order; Prerogative writs; Process. 
In old English law, an instrument in the form of a 
letter; a letter or letters of attorney. This is a very 
ancient sense of the word. 
In the old books, "writ" is used as equivalent to 
"action;" hence writs are sometimes divided into real, 
personal, and mixed. 
For the names and description of various particular 
writs, see the titles below. 
Alias writ. A second writ issued in the same cause, 
where a former writ of the same kind has been issued 
without effect. 
All Writs Act. Federal Act which permits federal appel
late courts to "issue all writs necessary or appropriate in 
aid of their respective jurisdictions and agreeable to the 
usages and principles of law." 28 U.S.C.A. § 1651. 
Close writ. In English law, a name given to certain 
letters of the sovereign, sealed with his great seal and 
directed to particular persons and for particular pur-
1608 
poses, which, not being proper for public inspection, 
were closed up and sealed on the outside; also, a writ 
directed to the sheriff instead of to the lord. 2 Bl. 
Comm. 346. 
Concurrent writs. In England, duplicate originals, or 
several writs running at the same time for the same 
purpose, for service on or arrest of a person, when it is 
not known where he is to be found; or for service on 
several persons, as when there are several defendants to 
an action. 
Judicial writs. In English practice, the capias and all 
other writs subsequent to the original writ not issuing 
out of chancery, but from the court to which the original 
was returnable. Being grounded on what had passed in 
that court in consequence of the sheriffs return, they 
were called judicial writs, in contradistinction to the 
writs issued out of chancery, which were called original 
writs. 3 Bl.Comm. 282. Such writs as issue under the 
private seal of the courts, and not under the great seal 
of England, and are tested or witnessed, not in the 
king's name, but in the name of the chief judge of the 
court out of which they issue. The word "judicial" is 
used in contradistinction to "original;" original writs 
being such as issue out of chancery under the great seal, 
and are witnessed in the king's name. 3 Bl.Comm. 282. 
Junior writ. One which is issued, or comes to the 
officer's hands, at a later time than a similar writ, at the 
suit of another party, or on a different claim, against the 
same defendant. 
Original writ. In English practice, an original writ was 
the process formerly in use for the commencement of 
personal actions. It was a mandatory letter from the 
king, issuing out of chancery, sealed with the great seal, 
and directed to the sheriff of the county wherein the 
injury was committed, or was supposed to have been 
committed, requiring him to command the wrong-doer 
or accused party either to do justice to the plaintiff or 
else to appear in court and answer the accusation 
against him. This writ is now disused, the writ of 
summons being the process prescribed by the uniformity 
of process act for commencing personal actions; and 
under the judicature act, 1873, all suits, even in the 
court of chancery, are to be commenced by such writs of 
summons. 
Patent writ. In old practice, an open writ; one not 
closed or sealed up. 
Peremptory writ. An original writ, called from the 
words of the writ a "si te fecerit securum': and which 
directed the sheriff to cause the defendant to appear in 
court without any option given him, provided the plain
tiff gave the sheriff security effectually to prosecute his 
claim. The writ was very occasionally in use, and only 
where nothing was specifically demanded, but only a 
satisfaction in general; as in the case of writs of trespass 
on the case, wherein no debt or other specific thing was 
sued for, but only damages to be assessed by a jury. 
Prerogative writs. Those issued by the exercise of the 
extraordinary power of the crown (the court, in modern

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1609 
practice) on proper cause shown; namely, the writs of 
procedendo, mandamus, prohibition, quo warranto, habe
as corpus, and certiorari. 
Writ system. The common-law procedural system, un
der which plaintiffs commenced most actions by obtain
ing the appropriate kind of original writ. This pigeon
holed approach shaped both procedural and substantive 
law. See Forms of action. 
Writ de ejectione firmre Irit diy ;}jekshiyowniy f�rmiy/. 
See Ejectione firmre. 
Writ de hreretico comburendo lrit diy h;}ret;}kow 
komb;}rendow I. See De hreretico comburendo. 
Writ de homine replegiando lrit diy hom;}niy 
r;}pliyjiyrendow I. See De homine replegiando. 
Writ de odio et atia Irit diy owdiyow ed eysh(iy);}/. See 
De odio et atia. 
Writ de rationabili parte bonorum Irit diy 
rresh(iy);}neyb;}lay partiy bownor;}m/. See De rationabili 
parte bonorum. 
Write-down. In accounting, to transfer a portion of the 
balance of an asset to an expense account due to a 
decrease in the value of an asset. See also Write-off. 
Write-off. To remove from the books of account an asset 
which has become worthless. Most often referred to in 
connection with accounts or notes receivable which are 
deemed worthless or uncollectible. See Bad debt. 
Writer of the tallies Irayt;}r ;}V a;} treliyz/. In England, 
an officer of the exchequer whose duty it was to write 
upon the tallies the letters of tellers' bills. 
Write-up. To increase the valuation of an asset in a 
financial statement to reflect current value. With a few 
exceptions, this is not generally permitted in accounting. 
Writing. The expression of ideas by letters visible to the 
eye. The giving an outward and objective form to a 
contract, will, etc., by means of letters or marks placed 
upon paper, parchment, or other material substance. 
Any intentional reduction to tangible form of an 
agreement, commitment, right to payment, property 
rights, or other abstraction. See U.C.C. § 1-201(46) 
(definition of "written" or "writing"). 
In the most general sense of the word, "writing" 
denotes a document, whether manuscript or printed, as 
opposed to mere spoken words. Writing is essential to 
the validity of certain contracts and other transactions. 
"Writings" consist of letters, words, or numbers, or 
their equivalent, set down by handwriting, typewriting, 
printing, photostating, photographing, magnetic im
pulse, mechanical or electronic recording, or other form 
of data compilation. Fed.Evid.R. 1001(1). 
"Writing" means handwriting, typewriting, printing, 
photostating, photographing, and every other means of 
recording upon any tangible thing any form of commu
nication or representation, including letters, words, pic-
WRIT OF CERTIORARI 
tures, sounds, or symbols, or combinations thereof. Cal
if.Evid.Code, § 250. 
See also Ancient writings; Instrument. 
Writing obligatory. The technical name by which a 
bond is described in pleading. 
Writ of ad quod damnum Irid ;}V red kwod dremn;}m/. 
See Ad quod damnum. 
Writ of assistance. Writs of Assistance exist to enforce 
judgment of court directing specific act. Matter of 
Lease Cancellation of Smith, 68 Hawaii 466, 719 P.2d 
397, 401. An equitable remedy normally used to trans
fer real property, the title of which has been previously 
adjudicated, as a means of enforcing the court's own 
decree. TeWalt v. TeWalt, Ind.App., 421 N.E.2d 415, 
418. It is essentially a mandatory injunction, the effect 
of which is to bring about a change in the possession of 
realty; it dispossesses the occupant and gives possession 
to one adjudged entitled thereto by the court. Dusbabek 
v. Local Building & Loan Ass'n, 178 Okl. 592, 63 P.2d 
756, 759. 
Despite merger of law and equity in rules practice, 
provision is made for writ of assistance in Fed.R.Civ.P. 
70. 
Ancient writs issuing from the Court of Exchequer 
ordering sheriffs to assist in the collection of debts owed 
the Crown. Prior to the American Revolution, the writs 
of assistance gave agents of the Crown in the American 
colonies the right to search for smuggled goods without 
any limitations. 
Writ of association. In English practice a writ whereby 
certain persons (usually the clerk of assize and his 
subordinate officers) are directed to associate themselves 
with the justices and serjeants; and they are required to 
admit the said persons into their society in order to take 
the assizes. 3 Bl.Comm. 59. 
Writ of attachment. An order to seize a debtor's proper
ty so as to secure the claim of a creditor. A writ 
employed to enforce obedience to an order or judgment 
of the court. It may take the form of taking or seizing 
property to bring it under control of the court. In its 
generic sense, any mesne civil process in the nature of a 
writ on which property may be attached, including 
trustee process. See also Attachment. 
Writ of capias. See Capias. 
Writ of certiorari. An order by the appellate court 
which is used by that court when it has discretion on 
whether or not to hear an appeal from a lower court. If 
the writ is denied, the court refuses to hear the appeal 
and, in effect, the judgment below stands unchanged. If 
the writ is granted, then it has the effect of ordering the 
lower court to certify the record and send it up to the 
higher court which has used its discretion to hear the 
appeal. See also Certiorari. 
In the U.S. Supreme Court, a review on writ of certio
rari is not a matter of right, but of judicial discretion, 
and will be granted only when there are special and 
important reasons therefor. 28 U.S.C.A. §§ 1254, 1257; 
Sup.Ct.Rules 10 et seq.

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WRIT OF CONSPIRACY 
Writ of conspiracy. A writ which anciently lay against 
persons who had conspired to injure the plaintiff, under 
the same circumstances which would now give him an 
action on the case. It did not lie at common law, in any 
case, except when the conspiracy was to indict the party 
either of treason or felony; all the other cases of con
spiracy in the books were but actions on the case. 
Writ of coram nobis. See Coram nobis. 
Writ of covenant. A writ which lies where a party 
claims damages for breach of covenant; i.e., of a promise 
under seal. 
Writ of debt. A writ which lies where the party claims 
the recovery of a debt; i.e., a liquidated or certain sum 
of money alleged to be due to him. 
Writ of deceit. The name of a writ which lies where one 
man has done anything in the name of another, by 
which the latter is damnified and deceived. 
Writ of delivery. A writ of execution employed to 
enforce a judgment for the delivery of chatt els. It 
commands the sheriff to cause the chattels mentioned in 
the writ to be returned to the person who has obtained 
the judgment; and, if the chattels cannot be found, to 
distrain the person against whom the judgment was 
given until he returns them. 
Writ of detinue Irid ;}v det:m(y)uw/. A writ which lies 
where a party claims the specific recovery of goods and 
chattels, or deeds and writings, detained from him. 
This is seldom used; trover is the more frequent reme
dy, in cases where it may be brought. 
Writ of dower. This is either a writ of dower unde nihil 
habet, which lies for a widow, commanding the tenant to 
assign her dower, no part of which has yet been set off 
to her; or a writ of right of dower, whereby she seeks to 
recover the remainder of the dower to which she is 
entitled, part having been already received from the 
tenant. This latter writ is seldom used. 
Writ of ejectment. The writ in an action of ejectment, 
for the recovery of lands. See Ejectment. 
Writ of entry. A real action to recover the possession of 
land where the tenant (or owner) has been disseised or 
otherwise wrongfully dispossessed. If the disseisor has 
aliened the land, or if it has descended to his heir, the 
writ of entry is said to be in the per, because it alleges 
that the defendant (the alienee or heir) obtained posses
sion through the original disseisor. If two alienations 
(or descents) have taken place, the writ is in the per and 
cui, because it alleges that the defendant (the second 
alienee) obtained possession through the first alienee, to 
whom the original disseisor had aliened it. If more than 
two alienations (or descents) have taken place, the writ 
is in the post, because it simply alleges that the defen
dant acquired possession after the original disseisin. 3 
Bl.Comm. 180. The writ of entry was abolished, with 
other real actions, in England, by St. 3 & 4 Wm. IV, c. 
27, § 36, but is still in use in a few of the states. Under 
rules practice, such writ has been abolished in favor of a 
civil action which grants similar relief, e.g. Mass.R. 
Civ.P. 81(b). See also Entry, writ of. 
1610 
Writ of error. A writ issued from a court of appellate 
jurisdiction, directed to the judge or judges of a court of 
record, requiring them to remit to the appellate court 
the record of an action before them, in which a final 
judgment has been entered, in order that examination 
may be made of certain errors alleged to have been 
committed, and that the judgment may be reversed, 
corrected, or affirmed, as the case may require. It is 
brought for supposed error in law apparent on record 
and takes case to higher tribunal, which affirms or 
reverses. It is commencement of new suit to set aside 
judgment, and is not continuation of suit to which it 
relates. Winchester v. Winn, 225 Mo.App. 288, 29 
S.W.2d 188, 190. And unless abolished by statute, is 
writ of right applicable to all cases in which jurisdiction 
is exercised according to course of common law, but is 
inapplicable to cases not known to or in derogation of 
common law, unless otherwise provided by statute. See 
also Writ of error coram nobis; Writ of error coram vobis. 
Writ of error coram nobis Irit ;}v·ehr;}r kor;}m nowb;}s/. 
See Coram nobis. 
Writ of error coram vobis Irit ;}v ehr;}r kor;}m vowb;}s/. 
This writ, at the English common law, is distinguished 
from "writ of error coram nobis," in that the former 
issued from the Court of King's Bench to a judgment of 
the Court of Common Pleas, whereas the latter issued 
from the Court of King's Bench to a judgment of that 
court. See also Coram vobis. 
Writ of execution. A writ to put in force the judgment 
or decree of a court. Formal, written command of a 
court directing a sheriff or other official to enforce a 
judgment through process of execution. See Execution; 
Pluries; Writs of execution. 
Writ of exigi facias Irit ;}v egz;}jay feysh(iy);}s/. See 
Exigent. 
Writ of formedon Irit ;}v form;}d;}n/. A writ which lies 
for the recovery of an estate by a person claiming as 
issue in tail, or by the remainder-man or reversioner 
after the termination of the entail. See Formedon. 
Writ of habeas corpus. See Habeas corpus. 
Writ of inquiry. In common-law practice, a writ which 
issued after the plaintiff in an action had obtained a 
judgment by default, on an unliquidated claim, directing 
the sheriff, with the aid of a jury, to inquire into the 
amount of the plaintiffs demand and assess his dam
ages. 
Writ of mainprize, or mainprise Irit ;}v meynprayz/. 
In English law, a writ directed to the sheriff (either 
generally, when any man is imprisoned for a bailable 
offense and bail has been refused, or specially, when the 
offense or cause of commitment is not properly bailable 
below), commanding him to take sureties for the prison
er's appearance, commonly called "mainpernors," and to 
set him at large. 3 Bl.Comm. 128. See also Mainprise. 
Writ of mandamus. See Mandamus. 
Writ of mesne Irit ;}v miyn/. In old English law, a writ 
which was so called by reason of the words used in the

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161 1 
writ, namely, "Unde idem A. qui medius est inter C. et 
prrefatum B. ':. that is, A., who is mesne between C., the 
lord paramount, and B., the tenant paravaiI. See also 
Process (Mesne process). 
Writ of possession. Writ of execution employed to 
enforce a judgment to recover the possession of land. It 
commands the sheriff to enter the land and give posses
sion of it to the person entitled under the judgment. 
For a distinction between this writ and the Writ of 
assistance, see that title. See also Ejectment. 
Writ of prrecipe lrit ;}v pres;}piy/. This writ is also 
called a "writ of covenant," and is sued out by the party 
to whom lands are to be conveyed by fine, the founda
tion of which is a supposed agreement or covenant that 
the one shall convey the land to the other. 2 BI.Comm. 
349. 
Writ of prevention. This name is given to certain writs 
which may be issued in anticipation of suits which may 
arise. See Quia timet. 
Writ of process. See Action; Process. 
Writ of proclamation. In English law, by the statute 31 
Eliz., c. 3, § 1, when an exigent was sued out, a writ of 
proclamation issued at the same time, commanding the 
sheriff of the county where the defendant lived to make 
three proclamations thereof, in places the most notori
ous, and most likely to come to his knowledge, a month 
before the outlawry was to take place. 3 BI.Comm. 284. 
When it was not directed to the same sheriff as the 
exigent was, it was called a foreign writ of proclamation. 
Writ of prohibition. See Prohibition. 
Writ of protection. In England, the king may, by his 
writ of protection, privilege any person in his service 
from arrest in civil proceedings during a year and a day; 
but this prerogative is seldom, if ever, exercised. 
Writ of quare impedit. See Quare impedit. 
Writ of quo warranto. See Quo warranto. 
Writ of recaption. If, pending an action of replevin for 
a distress, the defendant distrains again for the same 
rent or service, the owner of the goods is not driven to 
another action of replevin, but is allowed a writ of 
recaption, by which he recovers the goods and damages 
for the def endant's contempt of the process of the law in 
making a second distress while the matter is sub judice. 
Writ of replevin. See Replevin. 
Writ of restitution. A writ which is issued on the 
reversal of a judgment commanding the sheriff to re
store to the defendant below the thing levied upon, if it 
has not been sold, and, if it has been sold, the proceeds. 
A writ which lies, after the reversal of a judgment, to 
restore a party to all that he has lost by occasion of the 
judgment. See also Restitution. 
Writ of review. A general designation of any form of 
process issuing from an appellate court and intended to 
bring up for review the record or decision of the court 
below. See Writ of certiorari. 
WRITTEN CONTRACT 
Writ of right. A writ which is grantable as a matter of 
right, as opposed to a "prerogative writ," which is issued 
only as a matter of grace or discretion. A writ which 
lay for one who had the right of property, against 
another who had the right of possession and the actual 
occupation. The writ properly lay only to recover corpo
real hereditaments for an estate in fee-simple; but there 
were other writs, said to be "in the nature of a writ of 
right," available for the recovery of incorporeal heredit
aments or of lands for a less estate than a fee-simple. 3 
BI.Comm. 391. 
In England, the writ of right was abolished in 1833. 
Writ of summons. The writ by which, under the Eng
lish judicature acts, all actions are commenced. See 
Summons. 
Writ of supersedeas Irit ;}v s(y)uwp;}rsiydiy;}s/. See 
Supersedeas. 
Writ of supervisory control. A writ which is issued 
only to correct erroneous rulings made by the lower 
court within its jurisdiction, where there is no appeal, or 
the remedy by appeal cannot afford adequate relief, and 
gross injustice is threatened as the result of such rul
ings. It is in nature of summary appeal to control 
course of litigation in trial court when necessary to 
prevent miscarriage of justice, and may be employed to 
prevent extended and needless litigation. State ex reI. 
Regis v. District Court of Second Judicial Dist. in and for 
Silver Bow County, 102 Mont. 74, 55 P.2d 1295. 
Function of "writ of supervisory control" is to enable 
Supreme Court to control course of litigation in inferior 
courts where such courts are proceeding within their 
jurisdiction, but by mistake of law, or willful disregard 
of it, are doing gross injustice, and there is no appeal or 
remedy by appeal is inadequate. State ex reI. State 
Bank of Townsend v. District Court of First Judicial 
Dist. in and for Lewis and Clark County, 94 Mont. 551, 
25 P.2d 396. 
Writ of tolt. In old English law, the name of a writ to 
remove proceedings on a writ of right patent from the 
court-baron into the county court. 
Writ of trial. In English law, a writ directing an action 
brought in a superior court to be tried in an inferior 
court or before the undershe riff, under St. 3 & 4 Wm. 
IV, c. 42. It was superseded by the county courts act of 
1867, c. 142, § 6, by which a defendant, in certain cases, 
became enabled to obtain an order that the action be 
tried in a county court. 
Writ of waste. The name of a writ to be issued against a 
tenant who has committed waste of the premises. 
There were anciently several forms of this writ, adapted 
to the particular circumstances. 
Writ pro retorno habendo Irit prow r;}tornow h;}hen
dow I. A writ commanding the return of the goods to 
the defendant, upon a judgment in his favor in replevin, 
upon the plaintiffs default. 
Written contract. See Contract.

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WRITTEN INSTRUMENT 
Written instrument. Something reduced to writing as a 
means of evidence, and as the means of giving formal 
expression to some act or contract. See Instrument. 
Written law. Statutory law; i.e. law deriving its force 
from express legislative enactment. Also, a constitution 
or treaty. See Common law; Constitution; Statute; Trea
ty. 
One of the two leading divisions of the Roman law, 
comprising the leges, plebiscita, senatus-consult a" princi
pum placita, magistratuum edicta, and responsa pruden
tum. 
Wrong. A violation of the legal rights of another; an 
invasion of right to the damage of the parties who suffer 
it, especially a tort. State ex reI. and to Vse of Donelon 
v. Deuser, 345 Mo. 628, 134 S.W.2d 132, 133. It usually 
signifies injury to person, property or relative noncon
tractual rights of another than wrongdoer, with or with
out force, but, in more extended sense, includes violation 
of contract. Daurizio v. Merchants' Despatch Transp. 
Co., 152 Misc. 716, 274 N.Y.S. 174. See Tort. 
The idea of rights naturally suggests the correlative 
one of wrongs; for every right is capable of being violat
ed. A right to receive payment for goods sold (for 
example) implies a wrong on the part of him who owes, 
but withholds the price; a right to live in personal 
security, a wrong on the part of him who commits 
personal violence. And therefore, while, in a general 
point of view, the law is intended for the establishment 
and maintenance of rights, we find it, on closer examina
tion, to be dealing both with rights and wrongs. It first 
fixes the character and definition of rights, and then, 
with a view to their effectual security, proceeds to define 
wrongs, and to devise the means by which the latter 
shall be prevented or redressed. 
Private wrong. The violation of public or private rights, 
when considered in reference to the injury sustained by 
the individual, and consequently as subjects for civil 
redress or compensation. Huntington v. Attrill, 146 
V.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123. See Tort. 
Public wrongs. Violations of public rights and duties 
which affect the whole community, considered as a 
community; crimes and misdemeanors. 3 BI.Comm. 2; 
4 BI.Comm. 1. 
Real wrong. In old English law, an injury to the free
hold. 
Wrongdoer. One who commits an injury; a tort-feasor. 
The term ordinarily imports an invasion of right to the 
damage of the party who suffers such invasion. 
Wrongful. Injurious, heedless, unjust, reckless, unfair; 
it implies the infringement of some right, and may 
result from disobedience to lawful authority. Buhler v. 
Marrujo, 86 N.M. 399, 524 P.2d 1015, 1019. See also 
Tort. 
Wrongful abuse of process. See Abuse (Process); 
Malicious abuse of legal process. 
Wrongful act. Any act which in the ordinary course 
will infringe upon the rights of another to his damage, 
1612 
unless it is done in the exercise of an equal or superior 
right. Term is occasionally equated to term "negli
gent," but generally has been considered more compre
hensive term, including criminal, wilful, wanton, reck
less and all other acts which in ordinary course will 
infringe upon rights of another to his damage. County 
of DuPage v. Kussel, 12 IlI.App.3d 272, 298 N.E.2d 323, 
326. 
Wrongful .birth. A medical malpractice claim brought 
by the parents of an impaired child, alleging that negli
gent treatment or advice deprived them of the opportu
nity to avoid conception or terminate the pregnancy. 
Bruggeman By and Through Bruggeman v. Schimke, 
239 Kan. 245, 718 P.2d 635, 638. See also Wrongful 
conception; Wrongful life. 
Wrongful conception. Also know as wrongful pregnan
cy, it is a claim by parents for damages arising from the 
negligent performance of a sterilization procedure or 
abortion, and the subsequent birth of a child. Miller v. 
Johnson, 231 Va. 177, 343 S.E.2d 301, 304. See also 
Wrongful birth; Wrongful life. 
Wrongful conduct. Conduct which contravenes some 
duty which law attaches to relation between parties 
affected. Duncan v. Lumbermen's Mut. Casualty Co., 91 
N.H. 349, 23 A.2d 325, 326. 
Wrongful death action. Type of lawsuit brought on 
behalf of a deceased person's beneficiaries that alleges 
that death was attributable to the willful or negligent 
act of another. Such action is original and distinct 
claim for damages sustained by statutory beneficiaries 
and is not derivative of or continuation of claim existing 
in decedent. Barragan v. Superior Court of Pima Coun
ty, 12 Ariz.App. 402, 470 P.2d 722, 724. See Kilberg 
doctrine; Wrongful death statutes. 
Wrongful death statutes. Such statutes, which exist in 
all states, provide a cause of action in favor of the 
decedent's personal representative for the benefit of 
certain beneficiaries (e.g. spouse, parent, children) 
against person who negligently caused death of spouse, 
child, parent, etc. Statutory provision which operates 
upon the common-law rule that the death of a human 
being may not be complained of as an injury in a civil 
court. The cause of action for wrongful death permitted 
under such statutes is for the wrong to the beneficiaries. 
Most such statutes are compensatory though some states 
retain statutes which measure damages in terms of 
culpability and some statutes reflect a combination of 
both. See also Death on High Seas Act; Lord Campbell 
Act; Survival statutes; Unb orn child; Wrongful death ac
tion. 
Wrongful discharge. An at-will employee's cause of 
action against his former employer, alleging that his 
discharge was in violation of state or federal anti-dis
crimination statutes (cf. 42 V.S.C.A. §§ 2000e to 200Oe-
17), public policy (Morris v. Hartford Courant Co., 200 
Conn. 676, 513 A.2d 66, 68), an implied employment 
contract (Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 
284, 491 A.2d 1257), or an implied covenant of good faith 
and fair dealing (Cleary v. American Airlines, Inc., 111

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1613 
Cal.App.3d 443, 168 Cal.Rptr. 722, 729). See also Em
ployment at will; Whistle-blower Acts. 
Wrongful dishonor. See Dishonor. 
Wrongful levy. Such as will entitle the owner of prop
erty levied on to damages for wrongful execution, exists 
where there has been done to a third person's personalty 
those acts that would constitute a valid and complete 
levy if the debtor's property had been seized. Farris v. 
Castor, 186 Okl. 668, 99 P.2d 900, 902, 903. 
Wrongful life. Refers to type of medical malpractice 
claim brought on behalf of a child born with birth 
defects, alleging that the child would not have been born 
but for negligent advice to, or treatment of, the parents. 
Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528, 532. 
See also Wrongful birth; Wrongful conception. 
Wrongfully. In a wrong manner; unjustly; in a manner 
contrary to the moral law, or to justice. See also Wrong
ful. 
WYTE 
Wrongfully intending. In the language of pleading, 
this phrase is appropriate to be used in alleging the 
malicious IIlotive of the defendant in committing the 
injury which forms the cause of action. 
W-2 form. A statement of earnings and taxes withheld 
(including federal, state, and local income taxes and 
FICA tax) during the year, prepared for and provided to 
each employee and also filed with the Internal Revenue 
Service by employer. 
Wurth /wf>r()/. In Saxon law, worthy; competent; capa
ble. Atheswurthe, worthy of oath; admissible or compe
tent to be sworn. 
Wye /way/. As applied to a street railway, a "wye" 
means a track with two branches, one joining the main 
track from one direction and the other joining the main 
track from another direction. 
Wyte /wayt/. In old English law, acquittance or immu
nity from amercement.

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y
Ya et nay. In old records, mere assertion and denial,
without oath. See also Yea and nay.
Yard. A measure of length, containing three feet, or
thirty-six inches.
A piece of land inclosed for the use and accommoda
tion of the inhabitants of a house. Grounds of building
or group of buildings.
An enclosure, with or without buildings, devoted to
some work or business.
Yardland, or virgata terrre /v:;)rgeyt:;) tehriy /. A quanti
ty of land, said by some to be twenty acres, but by Coke
to be of uncertain extent.
Yea and nay. Yes and no. According to a charter of
Athelstan, the people of Ripon were to be believed in all
actions or suits upon their yea and nay, without the
necessity of taking any oath. See also Yeas and nays.
Year. The period in which the revolution of the earth
round the sun, and the accompanying changes in the
order of nature, are completed. Generally, when a
statute speaks of a year, twelve calendar, and not lunar,
months are intended. The year is either astronomical,
ecclesiastical, or regnal, beginning on the 1st of Janu
ary, or 25th of March, or the day of the sovereign's
accession.
The civil year differs from the astronomical, the latter
being composed of three hundred and sixty-five days,
five hours, forty-eight minutes, forty-six seconds and a
fraction, while the former consists sometimes of three
hundred and sixty-five days, and at others, in leap-years,
of three hundred and sixty-six days.
When the period of a "year" is named, a calendar year
is generally intended, but the subject-matter or context
of statute or contract in which the term is found or to
which it relates may alter its meaning.
See also Current year; Fiscal year; Taxable year.
Calendar year. See Calendar.
Natural year. In old English law, that period of time in
which the sum was supposed to revolve in its orbit,
consisting of 365 days and one-fourth of a day, or six
hours.
prosecuting or avoiding certain legal acts; e.g., for bring
ing actions after entry, for making claim for avoiding a
fine, etc. See also Year and a day rule.
Year Books. Books of reports of cases in a regular series
from the reign of the English King Edward I, inclusive,
to the time of Henry VIII, which were taken by the
prothonotaries or chief scribes of the courts, at the
expense of the crown, and published annually; whence
their name, "Year Books."
Year, day, and waste. In English law, an ancient pre
rogative of the king, whereby he was entitled to the
profits, for a year and a day, of the lands of persons
attainted of petty treason or felony, together with the
right of wasting the tenements, afterwards restoring the
property to the lord of the fee. Abrogated by St. 54 Geo.
III, c. 145. See An, jour, et waste.
Year of Our Lord. In England the time of an offense
may be alleged as that of the sovereign's reign, or as
that of the year of our Lord. The former is the usual
mode. Hence there "year" alone might not indicate the
time intended, but as we have no other era, therefore,
any particular year must mean that year in our era.
The abbreviation A.D. may be omitted; and the word
year is not fatal.
Year to year, tenancy from. This estate arises either
expressly, as when land is let from year to year; or by a
general parol demise, without any determinate interest,
but reserving the payment of an annual rent; or impli
edly, as when property is occupied generally under a
rent payable yearly, half-yearly, or quarterly; or when a
tenant holds over, after the expiration of his term,
without having entered into any new contract, and pays
rent (before which he is tenant on sufferance). See also,
Tenant (Tenant from year to year.)
Years, estate for. See Estate for years.
Year and a day rule. At common law, death could not
be attributed to defendant's wrongful conduct unless it
occurred within a year and a day of the conduct. The
rationale for this rule was the lack of medical precision
in determining cause after such a long period of time,
coupled with the very real probability of an intervening
Year and day. This period was fixed for many purposes cause being responsible for the death. In view of the
in law. Thus, in the case of an estray, if the owner did medical advances of the twentieth century, it can be
not claim it within that time, it became the property of argued that the year and a day rule is obsolete and
the lord. So the owners of wreck must claim it within a should be discarded. Although some jurisdictions have
year and a day. Death must follow upon wounding done this either by legislation or judicial decision, most
within a year and a day if the wounding is to be indicted jurisdictions have not. See Elliott v. Mills, Okl.Cr.App.,
as murder. Also, a year and a day were given for 335 P.2d 1104.
1615

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YEAR BOOKS 
Year Books. Books made up of reports of English cases 
from Edward II, 1292, to Henry VIII, early in the 
sixteenth century. They constitute an important source 
of information on the early English common law. 
Yearly. See Annual; Annually. 
Year of mourning. The Roman "annus luctus" (q.v.). 
The reason for the widow's year of mourning has been 
stated as follows: "But if a man dies, and his widow 
soon after marries again, and a child is born within such 
a time as by the course of nature it might have been the 
child of either husband, in this case he is said to be more 
than ordinarily legitimate; for he may, when he arrives 
at years of discretion, choose which of the fathers he 
pleases. To prevent this, the civil law ordained that no 
widow should marry for one year, and the same consti
tution was probably transmitted to our ancestors from 
the Romans, during their stay in Britain, for we find it 
established under the Saxon and Danish governments." 
1 Bl.Comm. 456. 
Year to year tenancy. See Tenancy. 
Yeas and nays. The affirmative and negative votes on a 
bill or measure before a legislative assembly. "Calling 
the yeas and nays" is calling for the individual and oral 
vote of each member, usually upon a call of the roll. 
Yellow dog contract. An employment practice by 
which employer requires employee to sign an agreement 
promising as condition of employment that he will not 
join a union, and will be discharged if he does· join. 
Such contracts are prohibited by the National Labor 
Relations Act, the Norris LaGuardia Act, the Railway 
Labor Act, and as well by the laws of most states. 29 
U.S.C.A. § 103. 
Yellow journalism. Type of journalism which distorts 
and exploits the news by sensationalism in order to sell 
copies of the newspapers or magazines. 
Yeme Iyiym/. In old records, winter; a corruption of 
the Latin "hiems". 
Yeoman Iyowm�n/. In English law, a commoner; a 
freeholder under the rank of gentleman. A man who 
has free land of forty shillings by the year; who was 
anciently thereby qualified to serve on juries, vote for 
knights of the shire, and do any other act, where the law 
requires one that is probus et legalis homo. 1 Bl.Comm. 
406, 407. 
This term is occasionally used in American law, but 
without any definite meaning, except in the United 
States navy, where it designates an appointive petty 
officer who performs clerical duties usually associated 
with office workers. 
Yeomanry Iyowm�nriy/. The collected body of yeomen. 
Yeomen of the guard. Properly called "yeomen of the 
guard of the royal household ;" a body of men of the best 
rank under the gentry, and of a larger stature than 
ordinary, every one being required to be six feet high. 
Yeven, or yeoven Iyiv�n/. Given; dated. 
1616 
Yick Wo doctrine. Doctrine which takes its name from 
the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 
1064, 30 L.Ed. 220, to the effect that a law or ordinance 
which gives a person or body of persons absolute discre
tion to give or withhold permission to carry on a lawful 
business is in violation of the 14th Amendment, U.S. 
Const. 
Yiddish. A Middle High German dialect, or number of 
dialects, spoken by Jews, containing a large number of 
Germanized Hebrew words, and using Hebrew charac
ters for its literature. 
Yield. To give up, relinquish, or surrender. 
Current return from an investment or expenditure as 
a percentage of price of investment or expenditure. The 
stock dividends or bond interest paid expressed as a 
percentage of the current price. As to bonds or stock, is 
coupon or dividend rate divided by purchase price. See 
also Net yield; Rate (Rate return). 
In old English law, to perform a service due by a 
tenant to his lord. Hence the usual form of reservation 
of a rent in a lease began with the words "yielding and 
paying." 
Current yield. On bonds, the annual interest paid divid
ed by the current market price of the bond. As interest 
rates fall, the market price of the bond rises; as they 
rise, bond prices fall. The actual rate of return on a 
bond. For example, a 10% bond with a face value of 
$500 purchased for $450 earns $50 of interest in the first 
year. The current yield on the bond is 11.11 % while the 
coupon rate on the bond remains at 10%. 
Nominal yield. The annual income received from a 
fixed-income security divided by the par or face value of 
the security. It is stated as a percentage figure. 
Yield spread. Yield differences between various issues 
of securities. 
Yield to maturity. On bonds, a complex calculation that 
reflects the overall rate of return an investor would 
receive from a bond if the bond is held to maturity and 
the interest payments reinvested at the same rate. It 
takes into account purchase price, coupon yield, time to 
maturity and the time between interest payments. 
Yielding and paying. In conveyancing, the initial 
words of that clause in leases in which the rent to be 
paid by the lessee is mentioned and reserved. 
Yield upon investment. See Yield. 
Yokelet Iyowkl�t/. A little farm, requiring but a yoke 
of oxen to till it. 
Yom Kippur. Day of Atonement; is the most sacred 
and solemn holiday in the Jewish calendar, a day on 
which Jews throughout the world, after a period of 
fasting, congregate together at their respective syna
gogues to worship and pray and ask divine forgiveness 
for sins committed during the year. Hoffman v. Graber, 
Mo.App., 153 S.W.2d 817, 818. 
York-Antwerp rules Iyork rentw�rp ruwlz/. Certain 
rules relating to uniform bills of lading and also govern-

PDF page 1630

1617 
ing settlement of maritime losses among the several 
interests such as ship owners, cargo owners, etc. These 
rules are commonly incorporated in contracts of af
freightment. They are the result of conferences of rep
resentatives of mercantile interests from several coun
tries, in the interest of uniformity of law. They have no 
statutory authority. 
York, Custom of. A custom of the province of York in 
England, by which the effects of an intestate, after 
payment of his debts, were in general divided according 
to the ancient universal doctrine of the pars rationabilis; 
that is, one-third each to the widow, children, and ad
ministrator. 2 Bl.Comm. 518. 
York, Statute of. An important English statute passed 
at the city of York, in the twelfth year of Edward II, 
containing provisions on the subject of attorneys, wit
nesses, the taking of inquests by nisi prius, etc. 
Younger doctrine. The principle, developed by the Su
preme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 
746, 27 L.Ed.2d 669 and other cases, that federal courts 
should not interfere with an ongoing state criminal 
proceeding, either by injunction or declaratory relief, 
Black's Law Dictionary 6th Ed.-35 
YOUTHFUL OFFENDERS 
unless the prosecution has been brought in bad faith or 
as harassment. The Younger doctrine has also been 
applied in civil actions where the state is a party and 
important state substantive goals are implicated. 
Youth. This word includes children and young persons 
of both sexes. 
Youthful offenders. Status classification of youths and 
young adults, generally older than juveniles (18-25 age 
range), who are given special sentencing consideration. 
The purpose of federal and state statutes granting 
youthful offender status is to improve the chances of 
correction and successful return to the community of 
young offenders sentenced to imprisonment by providing 
them with vocational, education, counseling, or public 
service opportunities and by preventing their association 
with older and more experienced criminals during the 
terms of their confinement; see e.g. Fla. St. § 958.011; 
18 U.S.C.A. § 5001 et seq.; 5031 et seq. The determina
tion of whether or not to grant youthful offender status 
rests within the discretion of the sentencing court. Peo
ple v. Polansky, 125 A.D.2d 342, 509 N.Y.S.2d 71, 72. 
See also Delinquent child.

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z
Zamindar. See Zemindar.
Zanja / sanha/ . Span. A water ditch or artificial canal,
and particularly one used for purposes of irrigation.
Zanjero / sanherow /. Span. A water commissioner or
superintendent, or supervisor of an irrigation system.
Zealous witness. An untechnical term denoting a wit
ness, on the trial of a cause, who manifests a partiality
for the side calling him, and an eager readiness to tell
anything which he thinks may be of advantage to that
side. See also Swift witness.
Zeir /yir/. O. Sc. Year. "Zeir and day."
Zemindar /z;}miyndar/zrem:mo/zem:mo/. In Hindu law,
landkeeper. An officer who under the Mohammedan
government was charged with the financial superinten
dence of the lands of a district, the protection of the
cultivators, and the realization of the government's
share of its produce, either in money or kind.
Zero bracket amount. A deduction available to individ
ual taxpayers whether or not the individual itemizes his
or her deductions. The zero bracket amount was re
placed with the standard deduction, effective for tax
years beginning after 1986. Each of these are factored
into the tax tables.
Zetetick. Proceeding by inquiry.
Zone of employment. Within which injuries to employ
ees are compensable under workers' compensation acts,
is the place of employment and the area thereabout,
including the means of ingress thereto and egress there
from under the control of the employer. Merz v. Indus
trial Commission of Ohio, 134 Ohio St. 36, 15 N.E.2 d
632, 633, 11 0.0. 414. It implies reasonable proximity
to place of employment. Evans v. Workmen's Compen
sation Commissioner, 124 W.Va. 336, 20 S.E.2d 172, 173.
Zone theory. In law of trespass and nuisance, flights
above one's property may be actionable depending upon
whether they are in the airspace of the lower zone or in
the zone beyond the owner's "effective possession".
Smith v. New England Aircraft Co., 270 Mass. 511, 170
N.E. 385.
Right of privacy is primarily restraint upon unwar
ranted governmental interference or intrusion into ar
eas deemed to be within protected "zones of privacy."
Industrial Foundation of the South v. Texas Indus. Ace.
Bd., Tex., 540 S.W.2d 668, 679.
cation in each district of regulations having to do with
structural and architectural designs of buildings and of
regulations prescribing use to which buildings within
designated districts may be put. Division of land into
zones, and within those zones, regulation of both the
nature of land usage and the physical dimensions of uses
including height setbacks and minimum area. Chey
enne Airport Bd. v. Rogers, Wyo., 707 P.2d 717, 726.
See also Buffer-zone; Cluster zoning; Comprehensive
zoning plan; Conforming use; Land use planning; Master
plan; Official map; Planned unit development; Special
exception; Special use permit; Spot zoning; Variance.
Aesthetic zoning. Zoning regulations designed to pre
serve the aesthetic features or values of an area.
Cluster zoning. See Cluster zoning; Planned unit develop
ment.
Conditional zoning. The imposition of specific restric
tions upon the landowner as a condition of full realiza
tion of the benefit of rezoning. A zoning change which
permits use of particular property subject to conditions
not generally applicable to land similarly zoned. Scrut
ton v. Sacramento County, 275 C.A.2d 412, 79 Cal.Rptr.
872, 876. See Special exception; Use.
Contract zoning. Rezoning of a property to a less re
strictive zoning classification subject to an agreement by
the landowner to observe certain specified limitations on
the uses and physical development of the property that
other properties in the zone are not required to observe.
This device is used particularly in dealing with property
located in a more restrictive zone but on the borderline
of the less restrictive zone, for which classification the
rezoning is sought.
Density zoning. Type of cluster zoning which regulates
open spaces, density of population and use of land.
Chrinko v. South Brunswick Township Planning Board,
77 N.J. Super. 594, 187 A.2d 221. Density zoning re
quires state enabling legislation. Under this device, the
city council determines what percentage of a particular
district must be devoted to open space and what percent
age may be used for dwelling units. The task of locating
in the particular district the housing and open spaces
devolves upon the planning commission working in con
junction with the developer. The latter will submit a
series of plans and seek approval to go forward at each
stage. See also Planned unit development.
Euclidean zoning. Type of zoning based on district-and-
Zoning. The division of a city or town by legislative use. It envisions the specification of determined goo-
regulation into districts and the prescription and appli- graphic areas separated according to zoning districts
1618

PDF page 1632

1619 
with the uses permitted in each district set forth in the 
ordinances. Thus, a property owner could from the 
zoning map determine in what type of district the prop
erty was located and by reference to the district's re
strictions what uses are permitted. Village of Euclid v. 
Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 11 4, 71 L.Ed. 
303. 
Exclusionary zoning. Type of zoning which has been 
challenged on the grounds that it serves to erect exclu
sionary walls on the municipality's boundary according 
to local selfishness for socially improper goals which are 
beyond the legitimate purpose of zoning. The trend in 
the courts is to strike down such zoning. 
Floating zone. In an attempt to avoid the inflexibility of 
mapped districts, some communities have created excep
tional use districts to allow small tracts for such uses as 
shopping centers, garden type apartments or light indus
try. At time of ordinance approval the district is unlo
cated. See also Floating Zone. 
* 
ZYGOSTATES 
Holding zone. A form of low density zoning employed 
for a temporary purpose until the community decides 
how to rezone the area. 
Spot zoning. Changing the zoning of a particular piece 
of land without regard to the zoning plan for the area. 
See also Spot zoning. 
Zoning map. The map created by a zoning ordinance 
which displays the various zoning districts. 
Zoning variance. See Variance. 
Zygocephalum /zaygowser�l�m/. In the civil law, a 
measure or quantity of land. As much land as a yoke of 
oxen could plow in a day. 
Zygostates /zaygowsteytiyz/. In the civil law, a weigh
er; an officer who held or looked to the balance in 
weighing money between buyer and seller; an officer 
appointed to determine controversies about the weight 
of money.

PDF page 1636

TABLE OF ABBREVIATIONS 
(See also main Dictionary text for additional abbreviations) 
A A.L.R.3d _________________________ American Law Reports, Third 
Series. 
A. _____ _____________________________ Atlantic Reporter. Am.Bankr.L.J. _________________ American Bankruptcy Law 
A.2d _______________________________ Atlantic Reporter, Second Ser- Journal. 
ies. Am.Bankr.Rep. ________________ American Bankruptcy Re-
AALS _____________________________ Association of American Law ports. 
Schools. Am.Bankr.Rep.N.S. __________ American Bankruptcy Re-
A.B.A. ____________________________ American Bar Association. ports, New Series. 
A.B.A.J. __________________________ American Bar Association Am.Bus.L.J. ____________________ American Business Law Jour-
Journal. 
Abr. _______________________________ Abridgment. 
ACCA Docket __________________ Journal of American Corpo-
rate Counsel Association. 
ADEA ____________________________ Age Discrimination in Employ-
ment Act. 
Adj.Sess. _________________________ Adjourned Session. 
nal. 
Am.Crim.L.Rev. _______________ American Criminal Law Re-
view. 
Am.lndian L.Rev. ____________ American Indian Law Review. 
A.M.C. ____________________________ American Maritime Cases. 
Am.Dec. __________________________ American Decisions. 
Am.Dig. __________________________ American Digest. 
Amend. __________________________ Amendment. 
Ad.L. ______________________________ Administrative Law. Am.J.lnt.L. _____________________ American Journal of Interna-
Ad.L.B. ___________________________ Administrative Law Bulletin. tional Law. 
Ad.L.News ______________________ Administrative Law News. Am.J.L. & Med. _______________ American Journal of Law & 
Adm. ______________________________ Administration; Administra- Medicine. 
tive. Am.Law Inst. __________________ American Law Institute, Re-
Admin.L.Rev. __________________ Administrative Law Review. statement of the Law. 
AFDC _____________________________ Aid to Families with Depend- Am.Law J. ______________________ American Law Journal. 
ent Children. Am.Law Rev. __________________ American Law Review. 
Aff'd ______________________________ Affirmed. Am.R. _____________________________ American Reports. 
Aff'g _______________________________ Affirming. Am.St.R. _________________________ American State Reports. 
AFTR _____________________________ American Federal Tax Re- Am.U.L.Rev. ___________________ American University Law Re-
ports. 
A.F.L.Rev. _______________________ Air Force Law Review. 
view. 
Ann. ______________________________ Annual; Annotated. 
aka ________________________________ also known as. Ann.Cas. _________________________ American and English Anno-
Akron L.Rev. __________________ Akron Law Review. 
Akron Tax J. __________________ Akron Tax Journal. 
Ala. ________________________________ Alabama Reports. 
Ala.App. _________________________ Alabama Appellate Court. 
Ala.Civ.App. ____________________ Alabama Civil Appeals. 
Ala.Code _________________________ Code of Alabama. 
Ala.Cr.App. _____________________ Alabama Criminal Appeals. 
Ala.L.J. __________________________ Alabama Law Journal. 
Ala.L.Rev. _______________________ Alabama Law Review. 
Ala.Law. _________________________ Alabama Lawyer. 
Alaska ____________________________ Alaska Reports. 
Alaska L.Rev. _________________ Alaska Law Review. 
Alaska Stat. ____________________ Alaska Statutes. 
Alb.L.Rev. _______________________ Albany Law Review. 
tated Cases. 
Ann.Code ________________________ Annotated Code. 
Anno. _____________________________ Annotated. 
Ann.St. ___________________________ Annotated Statutes. 
Ann.Surv.Am.L. ______________ Annual Survey of American 
Law. 
Ann.Surv.Mass.L. ____________ Annual Survey of Massachu-
setts Law. 
Antioch L.J. ____________________ Antioch Law Journal. 
Antitrust L.J. __________________ Antitrust Law Journal. 
APA _______________________________ Administrative Procedure Act. 
App. _______________________________ Appendix; Court of Appeals. 
App.Dept. _______________________ Appellate Department. 
App.Div. _________________________ Appellate Division. 
Arb.J. _____________________________ Arbitration Journal. 
ALI ________________________________ American Law Institute. Ariz. _______________________________ Arizona Reports. 
A.L.J. _____________________________ Administrative Law Judge. Ariz.App. ________________________ Arizona Appeals Reports. 
A.L.R. ____________________________ American Law Reports. Ariz.Atty. _______________________ Arizona Attorney. 
A.L.R.2d _________________________ American Law Reports, Sec- Ariz.B.J. _________________________ Arizona Bar Journal. 
ond Series. Ariz.L.Rev. ______________________ Arizona Law Review. 
1623

PDF page 1637

ABBREVIATIONS 
Ariz.St.L.J. _____________________ Arizona State Law Journal. 
Ark. _______________ �--------------- Arkansas Reports. 
Ark.L.Rev. ______________________ Arkansas Law Review. 
Ark.Stats. _______________________ Arkansas Statutes. 
AR.S. _____________________________ Arizona Revised Statutes. 
AS _________________________________ Alaska Statutes. 
A.T.L.AJ. _______________________ American Trial Lawyers Asso-
ciation Journal. 
Att'y Gen. _______________________ Attorney General. 
Att'y Gen.Rep. ________________ United States Attorney Gener-
al's Reports. 
B 
Banking L.J. ___________________ Banking Law Journal. 
Bankr. ____________________________ Bankruptcy; Bankruptcy Re-
porter. 
Bankr.Code _____________________ Bankruptcy Code. 
Bankr. Dev. J. _________________ Bankruptcy Developments 
Journal. 
Bankr.Form ____________________ Bankruptcy Form. 
Bankr.Rule _____________________ Bankruptcy Rule. 
BATF _____________________________ Bureau of Alcohol, Tobacco, 
and Firearms. 
Baylor L.Rev. __________________ Baylor Law Review. 
B.C. Envtl. Aff.L.Rev. _________ Boston College Environmental 
Affairs Law Review. 
B.C.Ind. & Com.L.Rev. _____ Boston College Industrial and 
Commercial Law Review. 
B.C.Int'l & Comp.L.Rev. ___ Boston College International 
and Comparative Law Re
view. 
B.C.L .Rev. _______________________ Boston College Law Review. 
Bench and Bar ________________ Bench and Bar (MN). 
Berkeley Women's L.J. ____ Berkeley Women's Law Jour-
nal (Calif.). 
BIA ________________________________ Bureau of Indian Affairs. 
Bkrtcy. ___________________________ U.S. Bankruptcy Court. 
Black _____________________________ Black, U.S. Supreme Court Re-
ports. 
Black L.J. _______________________ Black Law Journal. 
Black.Com. ______________________ Blackstone's Commentaries on 
the Laws of England. 
Bl.Comm. ________________________ Blackstone's Commentaries on 
the Laws of England. 
BLM ______________________________ Bureau of Land Management. 
BLS _______________________________ Bureau of Labor Statistics. 
BNA ______________________________ Bureau of National Affairs. 
Boston B.J. _____________________ Boston Bar Journal. 
Boston U.L.Rev. ______________ Boston University Law Re-
view. 
B.R. _______________________________ Bankruptcy Reporter. 
Bridgeport L.Rev. ____________ Bridgeport Law Review. 
Brooklyn B. ____________________ Brooklyn Bar. 
Brooklyn Barr. ________________ Brooklyn Barrister. 
Brooklyn J.Int'l L. ___________ Brooklyn Journal of Interna-
tional Law. 
Brooklyn L.Rev. ______________ Brooklyn Law Review. 
B.T.A. _____________________________ Board of Tax Appeals Reports. 
Bucks _____________________________ Bucks County Law Reporter, 
Pa. 
1624 
Buffalo L.Rev. _________________ Buffalo Law Review. 
B. U .Int'l L.J. ___________________ Boston University Internation-
al Law Journal. 
B.U.J.T ax L. ___________________ Boston University Journal of 
Tax Law. 
B.U.L .Rev. ______________________ Boston University Law Re-
view. 
Bull. _______________________________ Bulletin. 
Burns' Ann.St. ________________ Burns' Annotated Statutes, 
Ind. 
Burns' Rev.St. _________________ Burns' Annotated Statutes, 
Ind. 
Bus.Law. _________________________ Business Lawyer. 
Bus.L.Rev. ______________________ Business Law Review. 
Bx.County Adv. _______________ Bronx (N.Y.) Bar Assoc. Advo-
cate. 
B.Y.U.L .Rev. ___________________ Brigham Young University 
Law Review. 
c 
C. ___________________________________ California Reports (Supreme 
Court). 
C.2d _______________________________ California Reports, Second 
Series. 
C.3d _______________________________ California Reports, Third Ser-
ies. 
C.A. _______________________________ Court of Appeals, U.S.; Cali-
fornia Appellate Reports. 
C.A2d ____________________________ California Appellate Reports, 
Second Series. 
C.A3d ____________________________ California Appellate Reports, 
Third Series. 
C.A Supp. ________________________ California Appellate Reports, 
Supplement. 
C.A2d Supp. ___________________ California Appellate Reports, 
Second Series Supplement. 
C.A3d Supp. ___________________ California Appellate Reports, 
Third Series Supplement. 
CAB _______________________________ Civil Aeronautics Board. 
Cal. ________________________________ California Reports (Supreme 
Court). 
Cal.2d _____________________________ California Reports, Second 
Series. 
Cal.3d _____________________________ California Reports, Third Ser-
ies. 
Cal.App. _________________________ California Appellate Reports. 
Cal.App.2d ______________________ California Appellate Reports, 
Second Series. 
Cal.App.3d ______________________ California Appellate Reports, 
Third Series. 
Cal.App.Supp. _________________ California Appellate Reports 
Supplement. 
Cal.App.2d Supp. _____________ California Appellate Reports 
Supplement, Second Series. 
Cal.App.3d Supp. _____________ California Appellate Reports 
Supplement, Third Series. 
Cal.Code ----------- ______________ California Code. 
Cal. Dec. __________________________ California Decisions. 
Cal.Law. - -- -- ---- -- ______________ California Lawyer. 
Cal.L.Rev. --- - --- --- _____________ California Law Review.

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1625 
Cal.Rptr. _________________________ California Reporter. 
Cal.St.B.J. _______________________ California State Bar Journal. 
Cal.Unrep. ______________________ California Unreported Cases. 
Cal.W.Int'l L.J __ _______________ California Western Interna-
tional Law Journal. 
Cal.W.L.Rev. ___________________ California Western Law Re-
view. 
Calif.L.Rev. _____________________ California Law Review. 
Cap.U.L.Rev. ___________________ Capital University Law Re-
view. 
Cardozo Arts & Ent.L.J. ___ Cardozo Arts & Entertainment 
Law Journal. 
Cardozo L.Rev. ________________ Cardozo Law Review. 
Case & Com. ___________________ Case and Comment. 
Case W.Res.J. Int'l L. __ Moo_Case Western Reserve Journal 
of International Law. 
Case W.Res.L.Rev. ___________ Case Western Reserve Law Re-
view. 
Cath.Law. _______________________ Catholic Lawyer. 
Cath.U.L.Rev. __________________ Catholic University Law Re-
view. 
C.B. ________________________________ Cumulative Bulletin (of Inter-
nal Revenue Service). 
CBA Record ____________________ Chicago Bar Association 
Record. 
CBO _______________________________ Congressional Budget Office. 
C.C. ________________________________ Circuit Court, U.S. 
C.C.A. _____________________________ Circuit Court of Appeals, U.S. 
CCC _______________________________ Commodity Credit Corpora-
tion. 
CCH _______________________________ Commerce Clearing House. 
l C.C.P. _____________________________ Code of Civil Procedure; Code 
of Criminal Procedure. 
C.C.P.A. __________________________ Court of Customs and Patent 
Appeals. 
CCR _______________________________ Commission on Civil Rights. 
C.D. _______________________________ Current Digest, American Di-
gest System; Certificate of 
Deposit. 
CDC _______________________________ Centers for Disease Control. 
Cent.Dig. ________________________ Century Digest. 
Cert. denied ____________________ Certiorari denied. 
CFR _______________________________ Code of Federal Regulations. 
CFTC _____________________________ Commodity Futures Trading 
Commission. 
C.G .S.A. __________________________ COnnecticut General Statutes 
Annotated. 
Ch. _________________________________ Chancery (Court or Division of 
Court). 
Chicago Bar Rec. _____________ Chicago Bar Record. 
Chi.-Kent L.Rev. _____________ Chicago-Kent Law Review. 
Chicago L.B. ___________________ Chicago Law Bulletin. 
Chicago L.J. ____________________ Chicago Law Journal. 
Chicago L.Rec. ________________ Chicago Law Record. 
Chicago L.T. ____________________ Chicago Law Times. 
Chi.Leg.N. ______________________ Chicago Legal News. 
CIA ________________________________ Central Intelligence Agency. 
CIC ________________________________ COnsumer Information Center. 
Cin.L.Rev. _______________________ Cincinnati Law Review. 
Cir. ________________________________ Circuit Court of Appeals (fed-
eral). 
ABBREVIATIONS 
Cir.Ct. ____________________________ Circuit Court (state). 
Cir.Ct.App. ______________________ Circuit Court of Appeal[s] 
(state). 
Cir.Ct.Rule ______________________ Circuit Court Rule. 
Civ.App. _________________________ Court of Civil Appeals; Civil 
Appeals Reports. 
Civ.Code _________________________ Civil Code. 
Civ.Code Practice ____________ Civil Code of Practice. 
Civ.Prac.Act ____________________ Civil Practice Act. 
Civ.St. ____________________________ Civil Statutes. 
C.J. ________________________________ Corpus Juris; Chief Judge. 
C.J.S. _____________________________ Corpus Juris Secundum. 
Cl. __________________________________ Clause. 
Cl.CL _____________________________ Claims Court, U.S. 
C.Leg.Rec. _______________________ California Legal Record. 
Clev.B.J. _________________________ Cleveland Bar Journal. 
Clev.Law Rec. _________________ Cleveland Law Recorder, Ohio. 
Clev.Law Rep. _________________ Cleveland Law Reporter, Ohio. 
Clev.St.L.Rev. __________________ Cleveland State Law Review. 
Clev.-Mar.L.Rev. _____________ Cleveland-Marshall Law Re-
view. 
C.L.J. _____________________________ California Law Journal. 
C.L.R. _____________________________ California Law Review. 
C.M.A. ____________________________ Court of Military Appeals. 
C.M.R. ____________________________ Court-Martial Reports; Court 
of Military Review. 
Code Civ.Proc. _________________ Code of Civil Procedure. 
Code Cr.Proc. __________________ Code of Criminal Procedure. 
Code Gen.Laws ________________ Code of General Laws. 
Code Prac. ______________________ Code of Practice. 
Code Proc. ______________________ Code of Procedure. 
Code Pub.Gen.Laws _________ Code of Public General Laws. 
Code Supp. ______________________ Supplement to a Code. 
Cod.St. ____________________________ Codified Statutes. 
Colo. ______________________________ Colorado Reports. 
Colo.App. ________________________ Colorado Court of Appeals Re-
ports. 
Colo.Law. ________________________ Colorado Lawyer. 
Colo.Law Rep. _________________ Colorado Law Reporter. 
Colum.Bus.L.Rev. ____ Moo_Moo_Columbia Business Law Re-
view. 
Colum.Hum.Rts.L.Rev. _____ Columbia Human Rights Law 
Review. 
Colum.J.Envtl.L. ______________ Columbia Journal of Environ-
mental Law. 
Colum.J .L. & Arts ___________ Columbia Journal of Law and 
the Arts. 
Colum.J.L. & Soc.Probs. ___ Columbia Journal of Law and 
Social Problems. 
Colum.J.Transnat'l L. ___ oM_Columbia Journal of Transna-
tional Law. 
Colum.L.Rev. ___________________ Columbia Law Review. 
Com.L.B. _________________________ Commercial Law Bulletin. 
Com.L.J. _________________________ Commercial Law Journal. 
Comm. ____________________________ Commentaries; Commissioner; 
Communication. 
Comm.Ct. ________________________ COmmerce Court. 
Comm'r __________________________ Commissioner. 
Commw.Ct. _____________________ Commonwealth Court. 
COmp.Gen. ______________________ Comptroller General (U.S.).

PDF page 1639

ABBREVIATIONS 
Comp.Gen.Laws _______________ COmpiled General Laws. 
Comp.Lab.L.J. _________________ Comparative Labor Law Jour-
nal. 
Comp.Laws _____________________ Compiled Laws. 
Comp.St. _________________________ Compiled Statutes. 
Comptr.Treas.Dec. ___________ Comptroller Treasury Deci-
sions. 
Computer L.J. _________________ Computer Law Journal. 
Computer Law. _______________ Computer Lawyer. 
COng. ______________________________ Congress; Congressional. 
Cong.Dig. ________________________ Congressional Digest. 
Cong.Rec. ________________________ Congressional Record. 
Conn. _____________________________ Connecticut Reports. 
Conn.App. _______________________ Connecticut Appellate Re-
ports. 
Conn.B.J. ________________________ Connecticut Bar Journal. 
COnn.Cir. ________________________ Connecticut Circuit Court Re-
ports. 
Conn.J.lnt'l L. _________________ Connecticut Journal of Inter-
national Law. 
Conn.L.Rev. ____________________ Connecticut Law Review. 
Conn.Prob.L.J. _________________ Connecticut Probate Law Jour-
nal. 
Conn.Supp. _____________________ Connecticut Supplement. 
COnn.Surr. ______________________ Connecticut Surrogate. 
Const. _____________________________ Constitution. 
Con.St. ___________________________ Consolidated Statutes. 
Const.Amend. __________________ Amendment to Constitution. 
Const. U .S.Amend. ____________ Amendment to the Constitu-
tion of the United States. 
Cooley L.Rev. __________________ Cooley Law Review. 
Copy. Bull. _______________________ Copyright Bulletin. 
Copy.Dec. ________________________ Copyright Decisions. 
Copyright L.Symp. 
(ASCAP) ______________________ Copyright Law Symposium. 
Cornell L.F. ____________________ Cornell Law Forum. 
Cornell Int'l L.J. _____________ Cornell International Law 
Journal. 
Cornell L.J. _____________________ Cornell Law Journal. 
Cornell L.Q. ____________________ Cornell Law Quarterly. 
Cornell L.Rev. _________________ Cornell Law Review. 
Corp. ______________________________ Corporation. 
Corp.L.Rev. _____________________ Corporation Law Review. 
C.P. ________________________________ Common Pleas. 
CPA _______________________________ Certified Public Accountant. 
CPSC _____________________________ Consumer Product Safety 
Commission. 
Cr.Act ______________________ ______ Criminal Act. 
Cranch ___________________________ Cranch, U.S. Supreme Court 
Reports. 
Cranch, C.C _____________________ Cranch's Circuit Court, U.S. 
Cranch, Pat. Dec. _____________ Cranch's Patent Decisions, 
U.S. 
Cr.Code __________________________ Criminal Code. 
Creighton L.Rev. _____________ Creighton Law Review. 
Crim.App. _______________________ Court of Criminal Appeals. 
Crim.Justice Q. _______________ Criminal Justice Quarterly. 
Crim.L.Bull. ____________________ Criminal Law Bulletin. 
Crim.L.J. ________________________ Criminal Law Journal. 
Crim.L.Rev. _____________________ Criminal Law Review. 
Crim.L.Rptr. ___________________ Criminal Law Reporter. 
1626 
Crim.L.Q. ________________________ Criminal Law Quarterly. 
Crim.Rpts. ______________________ Criminal Reports. 
Cr.Prac.Act _____________________ Criminal Practice Act. 
Cr.Proc.Act _____________________ Criminal Procedure Act. 
C.R.S. _____________________________ Colorado Revised Statutes. 
Cr.St. _____________________________ Criminal Statutes. 
CSC ________________________________ Civil Service Commission. 
Ct. _________________________________ Court. 
Ct.App. ___________________________ Court of Appeal[s] (state). 
Ct.CL _____________________________ Court of Claims, U.S. 
Ct.Cust.App. ____________________ Court of Customs Appeals. 
Ct.Err. & App. ________________ Court of Errors and Appeals. 
Ct.lnt'l Trade __________________ Court of International Trade. 
Ct.Rev. ___________________________ Court Review (American 
Judges Assoc.). 
C.U. _______________________________ California Unreported Cases. 
Cumb.L.J. _______________________ Cumberland Law Journal, Pa. 
Cumb.L.Rev. ___________________ Cumberland Law Review. 
Cumb.-Sam .L.Rev. ___________ Cumberland-Samford Law Re-
view. 
Current Ct.Dec. _______________ Current Court Decisions. 
Current Legal Probs. _______ Current Legal Problems. 
Cust.A. ___________________________ United States Customs Ap-
peals. 
Cust.B. & Dec. _________________ Customs Bulletin and Deci-
sions. 
Cust.Ct. __________________________ Customs Court. 
C.W.L.R. _________________________ California Western Law Re-
view. 
D 
D. __________________________________ District Court (federal). 
Dak. _______________________________ Dakota Reports (Territorial). 
Dak.L.Rev. ______________________ Dakota Law Review. 
DaIL ______________________________ Dallas, U.S. Supreme Court 
Reports. 
d.b.a. ______________________________ doing business as. 
D.C. _______________________________ District of Columbia; District 
Court, U.S. 
D. & C. ___________________________ District and County, Pa. 
D. & C.2d _______________________ District and County, Second 
Series, Pa. 
D.C.App. _________________________ District of Columbia Appeals. 
D.C.B.J. __________________________ District of Columbia Bar Jour-
nal. 
D.C.C.E. __________________________ District of Columbia Code En-
cyclopedia. 
D.C.C ode Ann. _________________ District of Columbia Code An-
notated. 
D.C.Cr. ___________________________ District of Columbia Circuit 
Court of Appeals, U.S. 
D.C.Mun.App. _________________ Municipal Court of Appeals, 
D.C. 
DEA _______________________________ Drug Enforcement Adminis-
tration. 
Def.Couns.J. ____________________ Defense Counsel Journal. 
Del. ________________________________ Delaware Reports. 
Del.Ch. ___________________________ Delaware Chancery Reports. 
Del.Code Ann. _________________ Delaware Code Annotated. 
Del.County ______________________ Delaware County Reports.

PDF page 1640

1627 ABBREVIATIONS 
Del.J.Corp.L. ________ ___________ Delaware Journal of Corporate ERISA _________ ___________________ Employee Retirement Income 
Law. Security Act. 
Del. Law. _________________________ Delaware Lawyer. ESOP ________________ _____________ Employee Stock Ownership 
Del. Term R. ____________________ Delaware Term Reports. Plan. 
Den.J.Int'l L. & Pol'y _______ Denver Journal of Internation- Ev.; Evid. ________ _______________ Evidence. 
al Law and Policy. Exec .Order _________ _____________ Executive Order. 
Den.L.J. __________________________ Denver Law Journal. Ex.Sess. ____________________ ______ Extra Session. 
Den.U.L.Rev. ___________________ Denver University Law Re-
view. 
Denver L.N. ___________ _________ Denver Legal News. F 
De Paul Bus.L.J. _____________ De Paul Business Law Jour- F. ___________________________________ Federal Reporter. 
nal. F.2d ___ _____________ _______________ Federal Reporter, Second Ser-
De Paul L.Rev. ________________ De Paul Law Review. ies. 
Det.C.L.Rev. ____________________ Detroit College Law Review. F AA ____ _____________ ______________ Federal Aviation Administra-
Det.L.J. __________________________ Detroit Law Journal. tion. 
Detroit Law. ___________ ______ __ Detroit Lawyer. Fam.L.Q. ____ ____________________ Family Law Quarterly. 
Detroit Leg.N. _________________ Detroit Legal News. FBI ______ _________________ _________ Federal Bureau of Investiga-
Detroit L.Rev. ___________ ______ Detroit Law Review. tion. 
Dick.J.Int'l L. _________ _________ Dickinson Journal of Interna- FCA ________ _______ ________________ Farm Credit Administration. 
tional Law. FCC ________ ______________ _________ Federal Communications Com-
Dick.L.Rev. ___ ___ _______________ Dickinson Law Review. mission. 
Dig. ________________________________ Digest. FCIA ________ ______________________ Foreign Credit Insurance Asso-
Dist.Ct. ___________________________ District Court (state). ciation. 
Dist.Ct.App. ______ ____ __________ District Court of Appeal[s]. FCIC ________ _________ _____________ Federal Crop Insurance Corpo-
DOD ______________________________ Department of Defense. ration. 
OOE _______________________________ Department of Energy. FDA ________ _______ ___________ _____ Food and Drug Administra-
Dom.Rel.Ct. _____________________ Domestic Relations Court. tion. 
DOT _________________________ ______ Department of Transportation. FDAA _____________ _______________ Federal Disaster Assistance 
Drake L.Rev. ______ _____________ Drake Law Review. Administration. 
Duke L.J. ____ ___________________ Duke Law Journal. FDIC ___ _____________ __________ ____ Federal Deposit Insurance Cor-
Duq.L.Rev. ___________ ___________ Duquesne Law Review. poration. 
E 
FEC ___ ___________ _____________ ____ Federal Election Commission. 
Fed. _________ __________ ____________ Federal; Federal Reserve 
Ecology L.Q. ______________ ______ Ecology Law Quarterly. Board. 
Ed. ____ __________________ ___________ Edition. Fed.B.J. ______________ ____________ Federal Bar Journal. 
E.D. __________ _________ ____________ Eastern District. Fed.B.News _____________ ________ Federal Bar News. 
EEO _______________________________ Equal Employment Opportuni- Fed.Cas. ____ _______________ _______ Federal Cases, U.S. 
ty. Fed.Comm.L.J. _____ ___________ Federal Communications Law 
EEOC _______ ______________ ________ Equal Employment Opportuni- Journal. 
ty Commission. Fed.Evid.R. __________ ___________ Federal Rules of Evidence. 
Eff. _________ ________ ______ ___ ______ Effective. Fed.L.Rev. ______________________ Federal Law Review. 
Emer.Ct.App. __________________ Emergency Court of Appeals, Fed.R.App.P. ___________________ Federal Rules of Appellate 
U.S. Procedure. 
Emory J.Int'l Dis.Res. ______ Emory Journal of Internation- Fed.R.Civ.P. _______ _____________ Federal Rules of Civil Proce-
al Dispute Resolution. dure. 
Emory L.J. ______________________ Emory Law Journal. Fed.R.Crim.P. __________________ Federal Rules of Criminal Pro-
Emp.Rel.L.J. _________ __________ Employee Relations Law Jour- cedure. 
nal. Fed.R.Evid. _____________ ________ Federal Rules of Evidence. 
Energy L.J. ________ _____________ Energy Law Journal. Fed.Reg. _________ ________________ Federal Register. 
Ent. & Sp.L.J. ____ _____________ Entertainment & Sports Law FHA _____________ ________ _________ Federal Housing Administra-
Journal. tion. 
Env.L.Rptr. _____________________ Environmental Law Reporter. FHLB ________ _____________________ Federal Home Loan Bank. 
Envtl. & Plan.L.J. ___________ Environmental and Planning FHLBB. _____ _____________________ Federal Home Loan Bank 
Law Journal. Board. 
Env tl.L. ___________ _______________ Environmental Law. FHLMC __________ ________________ Federal Home Loan Mortgage 
EO ______ ___________________________ Executive Order. Corporation (Freddie Mac). 
EPA _____________ __________________ Environmental Protection FHW A ___________________________ Federal Highway Administra-
Agency. tion. 
Eq. ___ ________________ ______________ Equity Court or Division. FIA ____ ____________________________ Federal Insurance Administra-
Erie _______________________________ Erie County Legal Journal, Pa. tion.

PDF page 1641

ABBREVIATIONS 
FICA ______________________________ Federal Insurance Contribu-
tion Act. 
Fla. ________________________________ Florida Reports. 
Fla.B.J ____________________________ Florida Bar Journal. 
Fla.lnt'l L.J. ___________________ Florida International Law 
Journal. 
Fla.L.Rev. _______________________ Florida Law Review. 
Fla.St.U.L.R ev. ________________ Florida State University Law 
Review. 
Fla.Supp. ________________________ Florida Supplement. 
Fla.Supp.2d _____________________ Florida Supplement, Second 
Series. 
FLRA _____________________________ Federal Labor Relations Au-
thority. 
FMC ______________________________ Federal Maritime Commission. 
FMCS _____________________________ Federal Mediation and Concili-
ation Service. 
FmHA ____________________________ Farmers Home Administra-
tion. 
FNMA ____________________________ Federal National Mortgage As-
sociation (Fannie Mae). 
FOIA ______________________________ Freedom of Information Act. 
Food Drug Cosm.L.J. _______ Food Drug Cosmetic Law Jour-
nal. 
Fordham Int'l L.J. ___________ Fordham International Law 
Journal. 
Fordham L.Rev. ______________ Fordham Law Review. 
Fordham Urb.L.J. ____________ Fordham Urban Law Journal. 
FPC _______________________________ Federal Power Commission. 
F.R. ________________________________ Federal Register. 
FRB _______________________________ Federal Reserve Board. 
F.R.D. _____________________________ Federal Rules Decisions. 
FRS _______________________________ Federal Reserve System. 
F.S.A. _____________________________ Florida Statutes Annotated. 
FSIS _______________________________ Food Safety and Inspection 
Service. 
FSLIC ____________________________ Federal Savings and Loan In-
surance Corporation. 
F.Supp. ___________________________ Federal Supplement. 
FI'C _______________________________ Federal Trade Commission. 
FWS _______________________________ Fish and Wildlife Service. 
G 
Ga. _________________________________ Georgia Reports. 
GAAP ____________________________ Generally accepted accounting 
principles. 
Ga.App. __________________________ Georgia Appeals Reports. 
Ga.B.J. ___________________________ Georgia Bar Journal. 
Ga.Code Ann. __________________ Code of Georgia Annotated. 
Ga.Dec. ___________________________ Georgia Decisions. 
Ga.J.lnt'l & Comp.L. ________ Georgia Journal of Interna-
tional and Comparative 
Law. 
Ga.L.J. ___________________________ Georgia Law Journal. 
Ga.L.Rev. ________________________ Georgia Law Review. 
Ga.L.Rep. ________________________ Georgia Law Reporter. 
GAO ______________________________ General Accounting Office. 
Ga.St.B.J. _______________________ Georgia State Bar Journal. 
Ga.St.U.L.Rev. ____ _____________ Georgia State University Law 
Review. 
1628 
GATT _____________________________ General Agreement on Tariffs 
and Trade. 
Gavel _____________________________ Gavel-Milwaukee Bar Assoc. 
Gen.Assem. _____________________ General Assembly. 
Gen.Dig.U.S. ___________________ General Digest of the United 
States. 
Gen.Laws ________________________ General Laws. 
Gen.St. ___________________________ General Statutes. 
Geo.lmmigr.L.J. _______________ Georgetown Immigration Law 
Journal. 
Geo.L.J. __________________________ Georgetown Law Journal. 
Geo.Mason U.L.R ev. ________ George Mason University Law 
Review. 
Geo.Wash.J.lnt'l & Econ. __ George Washington Journal of 
International Law and Eco
nomics. 
Geo.Wash.L.Rev. ______________ George Washington Law Re-
view. 
Glendale L.Rev. _______________ Glendale Law Review. 
GMU L.Rev. ___________________ George Mason University Law 
Review. 
GNMA ___________________________ Government National Mort-
gage Association (Ginnie 
Mae). 
GNP ______________________________ Gross National Product. 
Golden Gate U.L .Rev. ______ Golden Gate University Law 
Review. 
Gov't ______________________________ Government. 
Gonz.L.Rev. _____________________ Gonzaga Law Review. 
GPO _______________________________ Government Printing Office. 
GSA _______________________________ General Services Administra-
tion. 
H 
Hamline J.Pub.L. & Pol'y Hamline Journal of Public 
Law and Policy. 
Hamline L.Rev. _______________ Hamline Law Review. 
Harv.C.R.-C.L.L.Rev. _______ Harvard Civil Rights-Civil 
Liberties Law Review. 
Harv.Envtl .L.Rev. ____________ Harvard Environmental Law 
Review. 
Harv.lntl.L.J. __________________ Harvard International Law 
Journal. 
Harv.J.L. & Pub.Pol'y ______ Harvard Journal of Law and 
Public Policy. 
Harv.J.L. & Tech. ____________ Harvard Journal of Law & 
Technology. 
Harv.J. on Legis. _____________ Harvard Journal on Legisla-
tion. 
Harv.L. Rev. ____________________ Harvard Law Review. 
Harv.Women's L.J. __________ Harvard Women's Law Jour-
nal. 
Hastings Const.L.Q. _________ Hastings Constitutional Law 
Quarterly. 
Hastings Int'l & Comp.L. 
Rev. ____________________________ Hastings International and 
Comparative Law Review. 
Hastings L.J. __________________ Hastings Law Journal. 
Haw. ______________________________ Hawaii Reports. 
Haw.App. _______________________ Hawaii Appellate Reports.

PDF page 1642

1629 ABBREVIATIONS 
Haw.B.J. _________________________ Hawaii Bar Journal. Ul.Rev.St. _______________________ Illinois Revised Statutes. 
Haw.Rev.Stat. _________________ Hawaii Revised Statutes. IMF _______________________________ International Monetary Fund. 
H.B. _______________________________ House Bill. I. & N.Dec. _____________________ Immigration and Nationality 
H.Bl. ______________________________ Henry Blackstone's English Decisions. 
Common Pleas Reports. Inc. ________________________________ Incorporated. 
HCF A ____________________________ Health Care Financing Admin- Ind. ________________________________ Indiana Reports. 
istration. Ind. & Lab.Rel.Rev. _________ Industrial and Labor Relations 
HHS ______________________________ Department of Health and Hu- Review. 
man Services. Ind.App. _________________________ Indiana Court of Appeals Re-
High Tech.L.J. ________________ High Technology Law Journal. ports. 
Hofstra L.Rev. _________________ Hofstra Law Review. Ind.Code Ann. _________________ Annotated Indiana Code. 
Hofstra Lab.L.J. ___ ___________ Hofstra Labor Law Journal. Ind.Leg.Forum ________________ Indiana Legal Forum. 
Hous.J.lnt'l L. _________________ Houston Journal of Interna- Ind.L.J. ___________________________ Indiana Law Journal. 
tional Law. Ind.L.Reg. _______________________ Indiana Legal Register. 
Hous.L.Rev. ____________________ Houston Law Review. Ind.L.Rep. _______________________ Indiana Law Reporter. 
Hous.Law. _______________________ Houston Lawyer. Ind.L.Rev. _______________________ Indiana Law Review. 
How. ______________________________ Howard, U.S. Supreme Court Ind.Super. _______________________ Indiana Superior Court Re-
Reports. ports (Wilson). 
How.L.J. _________________________ Howard Law Journal. Ind.T. _____________________________ Indian Territory. 
HRS _______________________________ Hawaii Revised Statutes. Ind.T.Ann.St. __________________ Indian Territory Annotated 
HSA _______________________________ Health Services Administra- Statutes. 
tion. Indus.L.J. _______________________ Industrial Law Journal. 
HUD ______________________________ Department of Housing and Indus.L.Rev. ____________________ Industrial Law Review. 
Urban Development. Indus. & Lab.Rel.Rev. ______ Industrial and Labor Relations 
Hum.Rts.Ann. _________________ Human Rights Annual. Review. 
Hurd's Rev.SL ________________ Hurd's Revised Statutes, Ill. INS ________________________________ Immigration and N aturaliza-
I 
tion Service. 
Ins.L.J. ___________________________ Insurance Law Journal. 
I.C. _________________________________ Idaho Code; Indiana Code; Inst. _______________________________ Institute. 
Iowa Code. Int.Com.Commn. ______________ Interstate Commerce Commis-
ICA ________________________________ Iowa Code Annotated. sion. 
ICC ________________________________ Interstate Commerce Commis- Int.Com.Rep. ___________________ Interstate Commerce Reports. 
sion. Inter Alia _______________________ Inter Alia (State Bar of Neva-
I.C.C. ______________________________ Interstate Commerce Commis- da). 
sion Reports. INTERPOL _____________________ International Criminal Police 
I.C.C .Prac.J. ____________________ I.C.C. Practitioners' Journal. Organization. 
IDA ________________________________ International Development As- Interst.Com.R. _________________ Interstate Commerce Reports. 
sociation. Int.L.N. __________________________ International Law Notes. 
Idaho _____________________________ Idaho Reports. Int.Rev.Bull. ___________________ Internal Revenue Bulletin. 
Idaho L.J. _______________________ Idaho Law Journal. Int.Rev.Code ___________________ Internal Revenue Code. 
Idaho L.Rev. ___________________ Idaho Law Review. Int'l & Comp.L.Q. ____________ International & Comparative 
IHS ________________________________ Indian Health Service. �aw Quarterly. 
Ill. _________________________________ Illinois Reports. Int'l J.L. & Psychiatry _____ International Journal of Law 
Ill.2d ______________________________ Illinois Reports, Second Series. and Psychiatry. 
Ill.Ann.Stat. ____________________ Smith-Hurd Illinois Annotat- Int'l Law. _______________________ International Lawyer. 
ed Statutes. Int'l Rev.L. & Econ. _________ International Review of Law 
Ill.App. ___________________________ Illinois Appellate Court Re- and Economics. 
ports. Int'l Tax & Bus.Law. _______ International Tax & Business 
Ill.App.2d _______________________ Illinois Appellate Court Re- Lawyer. 
ports, Second Series. Iowa ______________________________ Jowa Reports. 
Ill.App.3d _______________________ Illinois Appellate Court Re- Iowa B.News Bull. ___________ Bulletin of the Iowa State Bar 
ports, Third Series. Association. 
Ill.B.J. ____________________________ Illinois Bar Journal. Iowa L.B. ________________________ Iowa Law Bulletin. 
Ill.C.C. ____________________________ Illinois Circuit Court. Iowa L.Rev. _____________________ Iowa Law Review. 
Ill.Ct.CL _________________________ Illinois Court of Claims Re- IRA ________________________________ Individual Retirement Ac-
ports. count. 
Ill. Dec. ___________________________ Illinois Decisions. I.R.B. _____________________________ Internal Revenue Bulletin. 
Ill.L.B. ____________________________ Illinois Law Bulletin. I.R.C. ______________________________ Internal Revenue Code. 
Ill.L.Q. ____________________________ Illinois Law Quarterly. I.R.S. ______________________________ Internal Revenue Service; Illi-
Ill.L.R ev. ________________________ Illinois Law Review. nois Revised Statutes.

PDF page 1643

ABBREVIATIONS 
ITA ______________________ _____ _____ International Trade Adminis-
tration. 
J 
JAG ____ ________________ ___________ Judge Advocate General. 
JAG Bull. _______________________ JAG Bulletin (USAF). 
JAG J. ___________________________ JAG Journal. 
JAG L.Rev. _____________________ United States Air Force JAG 
Law Review. 
J.Agric.Tax'n & L. ___________ Journal of Agricultural Taxa-
tion & Law. 
J.Air L. & Com. ______________ Journal of Air Law and Com-
merce. 
J .Am.Acad.Ma trimonial 
Law. ______________ ______________ Journal of the American Acad-
emy of Matrimonial Law
yers. 
J.Bus.L. __________ ________________ Journal of Business Law. 
J.C.U.L. _______________ ___________ Journal of College and Univer-
sity Law. 
J.COnt.L. ____________ _____________ Journal of Contract Law. 
J.Contemp.Health 
L.Pol'y ________________________ Journal of Contemporary 
Health Law and Policy. 
J.Contemp.L. ___________________ Journal of Contemporary Law. 
J.Contemp.Legal Issues ____ Journal of Contemporary Le-
gal Issues. 
J.Copyright Soc'y _____________ Journal of the Copyright Socie-
ty of the U.S.A. 
J.Corp.L. ___ ___________ ________ ___ Journal of Corporation Law 
(Iowa). 
J.Corp.Tax'n ____________ _______ Journal of Corporate Taxation. 
J.Crim.L. & Criminology __ Journal of Criminal Law & 
Criminology. 
J .Energy & N at.Resources 
L. ________________ ___ _____________ Journal of Energy & Natural 
Resources Law. 
J.Energy L. & Pol'y _________ Journal of Energy Law & Poli-
cy. 
J.Envtl.L.Litigation __________ Journal of Environmental Law 
and Litigation. 
J.Fam.L. ______________ _____ ______ Journal of Family Law. 
J.lnt'l Arb. ______________________ Journal of International Arbi-
tration. 
J.Juv.L. __________________ ________ Journal of Juvenile Law. 
J.Kan.B.A. ______________________ Journal of the Kansas Bar As-
sociation. 
J.L. & Com. ____________________ Journal of Law and Com-
merce. 
J.L. & Econ. ___________ _________ Journal of Law & Economics. 
J.L. & Educ. ____________________ Journal of Law & Education. 
J.L. & Health __________________ Journal of Law & Health. 
J.L. & Info.Sci. ________________ Journal of Law and Informa-
tion Science. 
J.L. & Pol. ______________________ Journal of Law & Politics. 
J.L. & Social Pol'y ___________ Journal of Law and Social Pol-
icy. 
J.Land Use & Envtl.L. _____ Journal of Land Use & Envi-
ronmental Law. 
J.Legal Educ. __________________ Journal of Legal Education. 
J.Legal Hist. ___________________ Journal of Legal History. 
1630 
J.Legal Med. ___________________ Journal of Legal Medicine. 
J.Legal Prof. ___________________ Journal of the Legal Profes-
sion. 
J.Legal Stud. ___________________ Journal of Legal Studies. 
J .Legis. ___________________________ J ournal of Legislation. 
J.Mar.L. & Com. ______________ Journal of Maritime Law and 
Commerce. 
J.Marshall L.Rev. ____________ John Marshall Law Review. 
J.Min.L. & Pol'y ______________ Journal of Mineral Law & Pol-
icy. 
J.Mo.B. ___________________________ Journal of the Missouri Bar. 
J.P. ___________________ _____________ Justice of the Peace. 
J .Pat. & Trademark 
Office __________ ________________ Off.Soc'y Journal of the Patent 
and Trademark Society. 
J.Prod.Liab. ____________________ Journal of Products Liability. 
J.Real Est.Tax'n ______________ Journal of Real Estate Taxa-
tion. 
J .Space L. _______________________ Journal of Space Law. 
J .Tax'n ________________ ___________ Journal of Taxation. 
Judicature ______________________ Judicature. 
Jurimetrics J. _________________ Jurimetrics Journal. 
Juv.Ct. _________________ _____ _____ Juvenile Court. 
K 
Kan. ____________ __________ _________ Kansas Reports. 
Kan.App. _________ _______________ Kansas Court of Appeals Re-
ports. 
Kan.App.2d ________ _____________ Kansas Court of Appeals Re-
ports, Second Series. 
Kan.C.L.Rep. ___________________ Kansas City Law Reporter. 
Kan.Law. __________ ______________ Kansas Lawyer. 
Kan.L.J. ______ _____ ______________ Kansas Law Journal. 
Kan.L.Rev. ______ ________________ Kansas Law Review. 
Kan.Stat.Ann. _________________ Kansas Statutes Annotated. 
K.B.J. ____ _____________ _ ___________ Kansas Bar Journal. 
KRS ____ _______ ____________________ Kentucky Revised Statutes. 
K.S.A. __________ __________________ Kansas Statutes Annotated. 
Ky. ____________ ____________________ Kentucky Reports. 
Ky.Bench & B. ________________ Kentucky Bench and Bar. 
Ky.Dec. ______ ____________________ Kentucky Decisions. 
Ky.Law Rep. ______________ _____ Kentucky Law Reporter. 
Ky.L.J. __________ _________________ Kentucky Law Journal. 
Ky.Op. ______________ ______________ Kentucky Opinions. 
Ky.Rev.Stat.Ann. _____________ Kentucky Revised Statutes 
Annotated. 
L 
L. ___________________________________ Laws (of state). 
La. ________________ _________________ Louisiana Reports. 
La.Ann. __________ ________________ Louisiana Annual Reports. 
La.App. __________________________ Louisiana Courts of Appeal 
Reports. 
La.B.J . ____ __________ ______________ Louisiana Bar Journal. 
L.A.Law __________________ _______ Los Angeles Lawyer. 
La.L.J. ____________________________ Louisiana Law Journal. 
La.L.Rev. ________________________ Louisiana Law Review. 
La.Rev.Stat.Ann. _____________ Louisiana Revised Statutes 
Annotated. 
Lab.L.J. __________ ________________ Labor Law Journal.

PDF page 1644

1631 
Land & Water L.Rev. ______ Land & Water Law Review. 
Law Ct. -------------_____________ Law Court. 
Law Div. _________________________ Law Division. 
Law & Contemp.Prob. ______ Law & Contemporary Prob-
lems. 
Law & Hist.Rev. ______________ Law and History Review. 
Law Forum _____________________ Law Forum (V. of Baltimore). 
Law Inst.J. _____________________ Law Institute Journal. 
Law Lib.J. ______________________ Law Library Journal. 
LEAA _____________________________ Law Enf orcement Assistance 
Administration. 
L.Ed. ______________________________ V.S. Supreme Court Reports, 
Lawyer's Edition. 
L.Ed.2d ___________________________ V.S. Supreme Court Reports, 
Lawyer's Edition, Second 
Series. 
Leg. __________________ _____________ Acts of the Legislature. 
Legal Reference Services 
Q. _______________________________ Legal Reference Services 
Quarterly. 
Legis. _____________________________ Legislation; Legislative. 
Leh.L.J. __________________________ Lehigh Law Journal, Pa. 
Lincoln Law Rev. ____________ LincolnLaw Review. 
L.J. ________________________________ Law Journal 
Los Angeles Bar J. ---c------Los Angeles Bar Journal. 
Loy.L.A.Ent.L.J. ______________ Loyola Entertainment Law 
Journal. 
Loy.L.A.lnt'l & Comp.L.J. Loyola of Los Angeles Interna
tional and Comparative Law 
Journal. 
Loy.L.A.L.Rev. _________________ Loyola of Los Angeles Law Re-
view. 
Loy.L.Rev. ______________________ Loyola Law Review (New Or-
leans). 
Loy.V.ChLL.J. _________________ Loyola Vniversity of Chicago 
Law Journal. 
L.P.R.A. __________________________ Laws of Puerto Rico Annotat-
ed. 
L.R. ___ _____________________________ Law Reports, V.S. 
L.R.A. ____________________________ Lawyers' Reports Annotated. 
LSA _______________________________ Louisiana Statutes Annotated. 
LSA-C.C. ________________________ Louisiana Statutes Annotat-
ed-Civil Code. 
LSA-C.C.P. _____________________ Louisiana Statutes Annotat-
ed-Code of Civil Procedure. 
LSA-C.Cr.P. ____________________ Louisiana Statutes Annotat-
ed-Code of Criminal Proce
dure. 
LSA-C.J.P. ______________________ Louisiana Statutes Annotat-
ed-Code of Juvenile Proce
dure. 
LSA-R.S. ________________________ Louisiana Statutes Annotat-
ed-Revised Statutes. 
Ltd. ________________________________ Limited. 
M 
MA ________________________________ Maritime Administration. 
Mag. ______________________________ Magistrate. 
Maine B.J. ______________________ Maine Bar Journal. 
Maine L.Rev. __________________ Maine Law Review. 
ABBREVIATIONS 
Marq.L.Rev. ____________________ Marquette Law Review. 
Mass. _____________________________ Massachusetts Reports. 
Mass.App.Ct. ________________ __ _ Massachusetts Appeals Court 
Reports. 
Mass.L.Rev. ____________________ Massachusetts Law Review. 
Mass.L.Q. ________________________ Massachusetts Law Quarterly. 
McGill L.J. _____________________ McGill Law Journal. 
M.C.A. ____________________________ Mississippi Code Annotated; 
Montana Code Annotated. 
M.C.L.A. _________________________ Michigan Compiled Laws An-
notated. 
Md. ________________________________ Maryland Reports. 
Md.App. _________________________ Maryland Appellate Reports. 
Md.B.J. ___________________________ Maryland Bar Journal. 
Md.Ch. ___________________________ Maryland Chancery. 
Md.Code Ann. _________________ Annotated Code of Maryland. 
Md.J.lnt'l L. & Trade ______ Maryland Journal of Interna-
tional Law and Trade. 
Md.L.Rep. _______________________ Maryland Law Reporter, Balti-
more. 
Md.L.Rev. _______________________ Maryland Law Review. 
Me. ________________________________ Maine Reports. 
Me.B.J. ___________________________ Maine Bar Journal. 
Me.L.Rev. _______________________ Maine Law Review. 
Med.Leg.J. ______________________ Medico-Legal Journal. 
Med.Trial Tech.Q. ____________ Medical Trial Technique Quar-
terly. 
Memphis L.J. __________________ Memphis Law Journal, Tenn. 
Memphis St.V.L.Rev. _______ Memphis State Vniversity 
Law Review. 
Mercer L.Rev. _________________ Mercer Law Review. 
Me.Rev.s tat.Ann. ____________ Maine Revised Statutes Anno-
tated. 
M.F.P.D. _________________________ Modern Federal Practice Di-
gest. 
MGIC _____________________________ Mortgage Guaranty Insurance 
Corporation. 
M.G.L.A. _________________________ Massachusetts General Laws 
Annotated. 
Miami L.Q. _____________________ Miami Law Quarterly. 
Mich. _____________________________ Michigan Reports. 
Mich.App. _______________________ Michigan Appeals Reports. 
Mich.B.J. ________________________ Michigan Bar Journal. 
Mich.Ct.CL _____________________ Michigan Court of Claims Re-
ports. 
Mich. Lawyer ___________________ Michigan Lawyer. 
Mich.L.Rev. _____________________ Michigan Law Review. 
Mich.S.B.J. _____________________ Michigan State Bar Journal. 
Mil.L.Rev. _______________________ Military Law Review. 
Minn. _____________________________ Minnesota Reports. 
Minn.L.Rev. ____________________ Minnesota Law Review. 
Minn.T.Law. ___________________ Minnesota Trial Lawyer. 
Miss. ______________________________ Mississippi Reports. 
Miss.C.L.Rev. __________________ Mississippi College Law Re-
view. 
Miss.Code Ann. _______________ Mississippi Code Annotated. 
Miss.Dec. ________________________ Mississippi Decisions. 
Miss.L.J. _________________________ Mississippi Law Journal. 
Miss.Law. _______________________ Mississippi Lawyer. 
Miss.St.Cas. _____________________ Mississippi State Cases. 
Mitf .Eq.Pl. ______________________ Mitf ord's Equity Pleading.

PDF page 1645

ABBREVIATIONS 
M.J. ------_________________________ Military Justice Reporter. 
M.L.R. ____________________________ Military Law Review. 
MLS _______________________________ Multiple Listing Service. 
Mo. ---_____________________________ Missouri Reports. 
Mo.App'- _________________________ Missouri Appeal Reports. 
Mo.B.J. ___________________________ Missouri Bar Journal. 
Mo.J.Dis.Res. __________________ Missouri Journal of Dispute 
Resolution. 
Mo.L.Rev. _______________________ Missouri Law Review. 
Mo.St.Ann. _____________________ Missouri Statutes Annotated. 
Mont. _____________________________ Montana Reports. 
Mont.Code Ann. ______________ Montana Code Annotated. 
Mont.L.Rev. ____________________ Montana Law Review. 
MPC ______________________________ Model Penal Code. 
M.R.S.A. _________________________ Maine Revised Statutes Anno-
tated. 
M.S.A. ____________________________ Minnesota Statutes Annotat-
ed; Michigan Statutes An
notated. 
MSPB ____________________________ Merit Systems Protection 
Board. 
M. T. ___________________ ' ____________ Miscellaneous Tax Ruling. 
Mun.Att'y _______________________ Municipal Attorney. 
Mun.Code _______________________ Municipal Code. 
Mun.Ct. __________________________ Municipal Court. 
N 
NAS _______________________________ National Academy of Science. 
NASA ____________________________ National Aeronautics and 
Space Administration. 
NASD ____________________________ National Association of Securi-
ties Dealers. 
Nat.Gas Law.J. _______________ Natural Gas Lawyer's Journal. 
NATO ____________________________ North Atlantic Treaty Orga-
nization. 
Nat.Resources Jo-_____________ Natural Resources Journal. 
Nat'l Black L.Jo-______________ National Black Law Journal. 
Nat'l Jewish L.Rev. _________ National Jewish Law Review. 
Naval L.Rev. ___________________ Naval Law Review. 
NBS _______________________________ N ational Bureau of Standards. 
N.C. _______________________________ North Carolina Reports. 
N.C.App'-________________________ North Carolina Court of Ap-
peals Reports. 
N.C.Bar __________________________ North Carolina Bar. 
N.C.Cent.L.J. ___________________ North Carolina Central Law 
Journal. 
N.C.Gen.Stat. __________________ General Statutes of North Car-
olina. 
N.C.L.Rev. ______________________ North Carolina Law Review. 
N.C.S.B. Quarterly ___________ North Carolina State Bar 
Quarterly. 
N.C.Term R. ___________________ North Carolina Term Reports. 
N.D. _______________________________ North Dakota Reports; North-
ern District. 
N.D.Cent.Code _________________ North Dakota Century Code. 
N.D.L.Rev. ______________________ North Dakota Law Review. 
N.E. _______________________________ North Eastern Reporter. 
N.E.2d ____________________________ North Eastern Reporter, Sec-
ond Series. 
Neb. _______________________________ Nebraska Reports. 
1632 
Neb.L.B. _________________________ Nebraska Law Bulletin. 
Neb.L.Rev. ______________________ Nebraska Law Review. 
Neb.Rev.Stat. __________________ Revised Statutes of Nebraska. 
Neb.St.B.J. ______________________ Nebraska State Bar Journal. 
Nev. _______________________________ Nevada Reports. 
Nev.Rev.Stat. __________________ Nevada Revised Statutes. 
New Eng.L.Rev. ______________ New England Law Review. 
N.H. _______________________________ New Hampshire Reports. 
N.H.B.J. _________________________ New Hampshire Bar Journal. 
N.H.Rev.Stat.Ann. ___________ New Hampshire Revised Stat-
utes Annotated. 
NHTSA __________________________ National Highway Transporta-
tion Safety Administration. 
N.Ill.U.L.Rev. __________________ Northern Illinois University 
Law Review. 
N.J. ________________________________ New Jersey Reports. 
N.J.Eq. ___________________________ New Jersey Equity Reports. 
N.J.L. _____________________________ New Jersey Law Reports. 
N.J.Law. _________________________ New Jersey Lawyer. 
N.J.L.J. __________________________ New Jersey Law Journal. 
N.J.Misc. ________________________ New Jersey Miscellaneous Re-
ports. 
N.J.S.A. __________________________ New Jersey Statutes Annotat-
ed. 
N.J.St.B.J. ______________________ New Jersey State Bar Journal. 
N.J.Super. ______________________ New Jersey Superior Court Re-
ports. 
nka ________________________________ now known as. 
N.Ky.L.Rev. ____________________ Northern Kentucky Law Re-
view. 
NLRB. ____________________________ National Labor Relations 
Board. 
N.M. ______________________________ New Mexico Reports. 
N.M.App. ________________________ New Mexico Appeals. 
N.M.B ar Bul. __________________ New Mexico Bar Bulletin. 
N.M.L.Rev. _____________________ New Mexico Law Review. 
N.M.S tat.Ann. _________________ New Mexico Statutes Annotat-
ed. 
Notre Dame J .L. Ethics & 
Pub. Pol'y ____________________ Notre Dame Journal of Law, 
Ethics, & Public Policy. 
Notre Dame L.Rev. __________ Notre Dame Law Review. 
Nova L.Rev. ____________________ Nova Law Review. 
NRC _______________________________ Nuclear Regulatory Commis-
sion. 
N.R.S. ____________________________ Nevada Revised Statutes. 
NSA _______________________________ National Security Agency. 
NSC _______________________________ National Security Council. 
NSF _______________________________ National Science Foundation. 
NTSB _____________________________ National Transportation Safe-
ty Board. 
N.W. ______________________________ North Western Reporter. 
N.W.2d ___________________________ North Western Reporter, Sec-
ond Series. 
Nw.J.lnt'l L. & Bus. ________ Northwestern Journal of In-
ternational Law & Business. 
Nw.U.L.Rev. ___________________ Northwestern University Law 
Review. 
N.Y. _______________________________ New York Court of Appeals 
Reports.

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1633 
N.Y.2d ____________________________ New York Court of Appeals 
Reports, Second Series. 
N.Y.A.D. ______________ ___________ New York Supreme Court, Ap-
pellate Division, Reports. 
N.Y.A.D.2d _____________________ New York Supreme Court, Ap-
pellate Division, Reports, 
Second Series. 
N.Y.A nn.Cas. __________________ New York Annotated Cases. 
N.Y.App.Div. ___________________ New York Supreme Court, Ap-
pellate Division. 
N.Y.C as.Err. ___________________ New York Cases in Error, 
Caine's Cases. 
N.Y.C h.Sent. ___________________ New York Chancery Sentinel. 
N.Y. City Ct. ____________________ New York City Court. 
N.Y.C ity Ct.SuppL __________ New York City Court Supple-
ment. 
N.Y.C ity H.Rec. _______________ New York City Hall Recorder. 
N.Y.C iv.Proc. __________________ New York Civil Procedure. 
N.Y.Civ.Proc.R., N.S. _______ New York Civil Procedure Re-
ports, New Series. 
N.Y.Civ.Pr.Rep. _______________ New York Civil Procedure Re-
ports. 
N.Y.C ode Rep. _________________ New York Code Reporter. 
N.Y .Code Reports, N.S. ____ New York Code Reports, New 
Series. 
N.Y.Cond. _______________________ New York Condensed Reports. 
N.Y.C ounty B.Bull. __________ New York County Bar Bulle-
tin. 
N.Y.Cr.R. ________________________ New York Criminal Reports. 
N.Y.D aily L.Gaz. _____________ New York Daily Law Gazette. 
N.Y .Daily Reg. ________________ New York Daily Register. 
N.Y. Elect.Cas. _________________ New York Election Cases. 
N.Y.L aw J. _____________________ New York Law Journal. 
N.Y.L.C.Ann. __________________ New York Leading Cases An-
notated. 
N.Y.L.F. _________________________ New York Law Forum. 
N.Y.L aw B.Bull. ______________ New York Lawyer Bar Bulle-
tin. 
N.Y.L aw B.J. __________________ New York Lawyer Bar Jour-
nal. 
N.Y.Leg.N. ______________________ New York Legal News. 
N.Y.L eg.Obs. ___________________ New York Legal Observer. 
N.Y.L eg.Reg. ___________________ New York Legal Register. 
N.Y.L.Gaz. ______________________ New York Law Gazette. 
N.Y.L.J. __________________________ New York Law Journal. 
N.Y.L.Rec. ______________________ New York Law Record. 
N.Y.L.Rev. ______________________ New York Law Review. 
N.Y.L.Sch.L.R ev. _____________ New York Law School Law Re
, view. 
N.Y.Misc. ________________________ New York Miscellaneous Re-
ports. 
N.Y.Misc.2d ____________________ New York Miscellaneous Re-
ports, Second Series. 
N.Y.Month.L.Bui. ____________ New York Monthly Law Bulle-
tin. 
N.Y.Month.L.R. _______________ New York Monthly Law Re-
ports. 
N.Y.Mun.G az. _________________ New York Municipal Gazette. 
N.Y.Ops.A tty.Gen. ___________ Opinions of the Attorney-Gen-
eral of New York. 
N.Y.Pr.Rep. ____________________ New York Practice Reports. 
ABBREVIATIONS 
N.Y.Rec. _________________________ New York Record. 
N.Y.S. ____________________________ New York Supplement Report-
er. 
N.Y.S.2d _________________________ New York Supplement Report-
er, Second Series. 
N.Y.St.B.J. ______________________ New York State Bar Journal. 
N.Y.S t.Rep. _____________________ New York State Reporter. 
N.Y. Super.Ct. __________________ New York Superior Court. 
N.Y.U.L.R ev. ___________________ New York University Law Re-
view. 
N.Y.U.Rev.L.& Soc. 
Change ________________________ New York University Review 
of Law and Social Change. 
N.Y .Wkly.Dig. _________________ New York Weekly Digest. 
o 
OA _________________________________ Office of Administration. 
OASDI ______________ " ____________ Old-Age, Survivors and Dis-
ability Insurance Benefits. 
OAS _______________________________ Organization of American 
States. 
O.C.D. ____________________________ Ohio Circuit Decisions. 
OFCC _____________________________ Office of Federal Contract 
Compliance. 
Off. Gaz. __________________________ Official Gazette, U.S. Patent 
Office. 
OFPP _____________________________ Office of Federal Procurement 
Policy. 
OFR _______________________________ Office of Federal Register. 
Ohio _______________________________ Ohio Reports. 
Ohio App. _______________________ Ohio Appellate Reports. 
Ohio App.2d ____________________ Ohio Appellate Reports, Sec-
ond Series. 
Ohio App.3d ____________________ Ohio Appellate Reports, Third 
Series. 
Ohio Cir.Ct.R. _________________ Ohio Circuit Court Reports. 
Ohio Cir.Ct.R., N.S. _____ ____ Ohio Circuit Court Reports, 
New Series. 
Ohio Cit. Dec. __________________ Ohio Circuit Decisions. 
Ohio Dec. ________________________ Ohio Decisions. 
Ohio Dec.ReprinL ___________ Ohio Decisions, Reprint. 
Ohio F.Dec. _____________________ Ohio Federal Decisions. 
Ohio Law. _______________________ Ohio Lawyer. 
Ohio Law BuL ________________ Ohio Law Bulletin. 
Ohio Law J. ____________________ Ohio Law Journal. 
Ohio Law Rep. ________________ Ohio Law Reporter. 
Ohio Leg.N. ____________________ Ohio Legal News. 
Ohio N.U.L .Rev. ______________ Ohio Northern University Law 
Review. 
Ohio N.P. _______________________ Ohio Nisi Prius. 
Ohio N.P., N.S. _______________ Ohio Nisi Prius, New Series. 
Ohio O. __________________________ Ohio Opinions. 
Ohio O.2d _______________________ Ohio Opinions, Second Series. 
Ohio Prob. ______________________ Ohio Probate. 
Ohio Rev.Code Ann. _________ Ohio Revised Code Annotated. 
Ohio S. & C.P.Dec. ___________ Ohio Superior and Common 
Pleas Decisions. 
Ohio St. __________________________ Ohio State Reports. 
Ohio St.2d ______________________ Ohio State Reports, Second 
Series.

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ABBREVIATIONS 
Ohio St.3d ------- _______________ Ohio State Reports, Third Ser-
ies. 
Ohio St.L.J. ____________________ Ohio State Law Journal. 
Ohio Supp. ______________________ Ohio Supplement. 
Oil & Gas Tax Q. ____________ Oil & Gas Tax Quarterly. 
Okla. ______________________________ Oklahoma Reports. 
Okla.App. _______________________ Oklahoma Court of Appeals. 
Okla.B.J. ________________________ Oklahoma Bar Journal. 
Okla.Cr. __________________________ Oklahoma Court of Criminal 
Appeals. 
Okla.Cty.U.L.Rev. ____________ Oklahoma City University 
Law Review. 
Okla.Crim. ______________________ Oklahoma Criminal Reports. 
Okla.L.J. _________________________ Oklahoma Law Journal. 
Okla.L.Rev. _____________________ Oklahoma Law Review. 
Okla.St.Ann. ___________________ Oklahoma Statutes Annotated. 
OLMS ____________________________ Office of Labor-Management 
Standards. 
OMB ______________________________ Office of Management and 
Budget. 
0.0. _______________________________ Ohio Opinions. 
Op.Atty.Gen. ___________________ Opinions of the Attorney Gen-
eral. 
OPM ______________________________ Office of Personnel Manage-
ment. 
Or. _________________________________ Oregon Reports. 
Or.App. __________________________ Oregon Reports, Court of Ap-
peals. 
Or.Bar Bull. ____________________ Oregon Bar Bulletin. 
ORC _______________________________ Ohio Revised Code. 
Ord. _______________________________ Ordinance. 
Orleans App. ___________________ Orleans Appeals, La. 
Or.L.Rev. ________________________ Oregon Law Review. 
Or.Rev.Stat. ____________________ Oregon Revised Statutes. 
Or.Tax ____________________________ Oregon Tax Reports. 
O.S. ________________________________ Oklahoma Statutes; Old Ser-
ies. 
OSHA ____________________________ Occupational Safety and 
Health Administration. 
OSHRC __________________________ Occupational Safety and 
Health Review Commission. 
OT _________________________________ Office of Transportation. 
OTC _______________________________ Over the counter. 
OTS _______________________________ Office of Thrift Supervision. 
p 
P. ___________________________________ Pacific Reporter. 
P.2d _______________________________ Pacific Reporter, Second Ser-
ies. 
Pa. _________________________________ Pennsylvania State Reports. 
Pa.B.A.Q. ________________________ Pennsylvania Bar Ass'n Quar-
terly. 
Pace Envtl.L.Rev. ____________ Pace Environmental Law Re-
view. 
Pace L.Rev. _____________________ Pace Law Review. 
Pacific C.L.J. ___________________ Pacific Coast Law Journal, 
San Francisco. 
Pac.L.J. __________________________ Pacific Law Journal. 
Pa.Cmwlth. _____________________ Pennsylvania Commonwealth 
Court Reports. 
1634 
Pa.Co.Ct.R. ______________________ Pennsylvania County Court 
Reports. 
Pa.Com.Pl. ______________________ Pennsylvania Common Pleas 
Reporter. 
Pa.Cons.Stat.Ann. ____________ Pennsylvania Consolidated 
Statutes Annotated. 
Pa.Corp. _________________________ Pennsylvania Corporation Re-
porter. 
Pa.C.S.A. ________________________ Pennsylvania Consolidated 
Statutes Annotated. 
Pa.Dist. & Co. _________________ Pennsylvania District and 
County Reports. 
Pa.Dist. & Co.2d ______________ Pennsylvania District and 
County Reports, Second Ser
ies. 
Pa.Dist. & Co.3d ______________ Pennsylvania District and 
County Reports, Third Ser
ies. 
Pa.Dist.R. _______________________ Pennsylvania District Reports. 
Pa.Law J. _______________________ Pennsylvania Law Journal. 
Pa.Law Ser. ____________________ Pennsylvania Law Series. 
Pa.Leg.Gaz. _____________________ Legal Gazette Reports (Camp-
bell) Pa. 
Pa.L.Rec. ________________________ Pennsylvania Law Record. 
Pa.Misc. __________________________ Pennsylvania Miscellaneous 
Reports. 
Pamph.Laws ___________________ Pamphlet Laws, Acts. 
Pa.Stat.Ann. ___________________ Pennsylvania Statutes Anno-
tated. 
Pa.Super. _________________ � ______ Pennsylvania Superior Court 
Reports. 
Pat. ________________________________ Patent. 
Pat.L.Ann. ______________________ Patent Law Annual. 
Pat.Off.Gaz. ____________________ Patent Office Gazette. 
Pat.Off.Rep. ____________________ Patent Office Reports. 
PBGC _____________________________ Pension Benefit Guaranty Cor-
poration. 
P.C. ________________________________ Penal Code. 
Pen.Code. ________________________ Penal Code. 
Pen.Laws ________________________ Penal Laws. 
Pepperdine L.Rev. ___________ Pepperdine Law Review. 
Pet. ________________________________ Peters, U.S. Supreme Court 
Reports. 
PHA's ____________________________ Public Housing Agencies. 
Phila.Leg.Int. __________________ Philadelphia Legal Intelligenc-
er, Pa. 
Philippine _______________________ Philippine Reports. 
Philippine L.J. ________________ Philippine Law Journal. 
PHS _______________________________ Public Health Service. 
Pitt.L.J. __________________________ Pittsburgh Legal Journal. 
Pittsb.Leg.J. ____________________ Pittsburgh Legal Journal, Pa. 
Pittsb.Leg.J., N.S. ____________ Pittsburgh Legal Journal, New 
Series, Pa. 
Pittsb.R. _________________________ Pittsburgh Reports, Pa. 
P.L. ________________________________ Public Law. 
P.L.J. _____________________________ Pittsburgh Legal Journal, Pa. 
Portia L.J. ______________________ Portia Law Journal. 
Porto Rico ______________________ Porto Rico Reports. 
Potomac L.Rev. _______________ Potomac Law Review. 
Prac.Act _________________________ Practice Act. 
Prac.Law. _______________________ Practical Lawyer.

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1635 
Priv.Ltr.Rul. ___________________ Private Letter Ruling (IRS). 
Prop. Treas.Reg. _______________ Proposed Treasury Regulation. 
P.R.R. _____________________________ Puerto Rico Supreme Court 
Reports. 
P.S. ________________________________ Pennsylvania Statutes; Penn-
sylvania Unconsolidated 
Statutes Annotated. 
PTO _______________________________ Patent and Trademark Office. 
Pub.Acts _______________ __________ Public Acts. 
Pub.Cont.L.J. _____________ _____ Public Contract Law Journal. 
Pub.Gen.Laws _________________ Public General Laws. 
Pub.L. ____________________________ Public Law. 
Pub.Land L.Rev. _____ _________ Public Land Law Review. 
Pub.Laws ________________________ Public Laws. 
PUD ______________________________ Planned Unit Development. 
Puget Sound L.Rev. _________ Puget Sound Law Review. 
P.U.R. ____________________________ Public Utilities Reports. 
PWBA ____________________________ Pension and Welfare Benefits 
Administration. 
R 
R.C. ________________________________ Revised Code. 
R.C.M. ____________________________ Revised Code of Montana. 
RCW A ____________________________ Revised Code of Washington 
Annotated. 
Real Est.L.J. ___________________ Real Estate Law Journal. 
Rec. _________________ ___________ ___ Record. 
Reg. ___ ____________________________ Register; Regulation. 
REIT ______________________________ Real Estate Investment Trust. 
Rem'g _____________________________ Remanding. 
Rep. _______________________________ Report(s, er}. 
Res Gestae ______________________ Res Gestae (Indiana State Bar 
Assoc.). 
RESPA ___________________________ Real Estate Settlement Proce-
dures Act. 
Rev. _______________________________ Revised; Review. 
Rev.Civ.Code ___________________ Revised Civil Code. 
Rev.Civ.St. ______________________ Revised Civil Statutes. 
Rev.Code ________________________ Revised Code. 
Rev.Code Civ.Proc. ___________ Revised Code Civil Procedure. 
Rev.Cr.Code ____________________ Revised Criminal Code. 
Rev.Code Cr.Proc. ____________ Revised Code of Criminal Pro-
cedure. 
Rev.Laws ________________________ Revised Laws. 
Rev.Mun.Code _________________ Revised Municipal Code. 
Rev.Ord. _________________________ Revised Ordinances. 
Rev.Pen.Code ________ _____ _____ Revised Penal Code. 
Rev.Pol.Code ___________________ Revised Political Code. 
Rev.Proc. ________________________ Revenue Procedure. 
Rev.Rul. _________________________ Revenue Ruling. 
Rev.St. ________ ___________________ Revised Statutes. 
R.I. ________________________________ Rhode Island Reports. 
R.I.B.J. ___________________________ Rhode Island Bar JournaL 
R.I.Gen.Laws ___________________ General Laws of Rhode Island. 
R.L. ___________ ______ _________ ______ Revised Laws. 
Rocky Mtn.Min.L.lnst. _____ Rocky Mountain Mineral Law 
Institute. 
RRB _______________________________ Railroad Retirement Board. 
R.S. ________________________________ Revised Statutes. 
R.S.N. ____________________________ Revised Statutes of Nebraska. 
ABBREVIATIONS 
RTC _______________________________ Resolution Trust Corporation. 
Rutgers-Cam.L.J. ____________ Rutgers-Camden Law Journal. 
Rutgers Computer & Tech. 
L.J. _____________________________ Rutgers Computer and Tech-
nology Law JournaL 
Rutgers L.J. ____________________ Rutgers Law Journal. 
Rutgers L.Rev. ________________ Rutgers Law Review. 
s 
SALT _____________________________ Strategic Arms Limitation 
Talks. 
San Diego L.Rev. _____________ San Diego Law Review. 
San Fern.V.L.Rev. ___________ San Fernando Valley Law Re-
view. 
San Fran.Atty. ________________ San Francisco Attorney. 
Santa Clara L.Rev. __________ Santa Clara Law Review. 
S.B. ________________________________ Senate Bill. 
SBA _______________________________ Small Business Administra-
tion. 
S.Bar.J. __________________________ Journal of the State Bar of 
California. 
SBIC ______________________________ Small Business Investment 
Companies. 
S.C. ________________________________ South Carolina Reports. 
S.C.Code Ann. _________________ Code of Laws of South Car-
olina. 
S.C.Eq. _____ ______________________ South Carolina Equity. 
S.C.Law. _________________________ South Carolina Lawyer. 
S.C.L.Rev. _______________________ South Carolina Law Review. 
S.Cal.L.Rev. ____________________ Southern California Law Re-
view. 
S.Ct. _______________________________ U.S. Supreme Court Reporter. 
S.D. ________________________________ South Dakota Reports; South-
ern District. 
S.D.Codified Laws Ann. ____ South Dakota Codified Laws 
Annotated. 
S.D.L.Rev. _______________________ South Dakota Law Review. 
S.E. ______ __________________________ South Eastern Reporter. 
S.E.2d _____________________________ South Eastern Reporter, Sec-
ond Series. 
SEATO ___________________________ Southeast Asia Treaty Orga-
nization. 
Sec. ________________________________ Section; Securities. 
SEC _______________________________ Securities and Exchange Com-
mission. 
Ser. ______________ ________ __________ Series. 
Sess. ________________________ _______ Session. 
Sess.Acts ________________________ Session Acts. 
Sess.Laws __________________ _____ Session Laws. 
Seton Hall L.Rev. ____________ Seton Hall Law Review. 
Seton Hall Legis.L. __________ Seton Hall Legislative Jour-
naL 
S.F.L.R. ________________________ __ San Francisco Law Review. 
S.H.A. ____________________________ Smith-Hurd Illinois Annotat-
ed Statutes. 
S.Ill.U.L.J. ______________________ Southern Illinois University 
Law JournaL 
S & L _____________________________ Savings and Loan Association. 
Smith-Hurd Ann.St. ________ Smith-Hurd Illinois Annotat-
ed Statutes.

PDF page 1649

ABBREVIATIONS 
So. ----------- ______________________ Southern Reporter. 
So.2d ----- _________________________ Southern Reporter, Second 
Series. 
So.Cal.L.Rev. ___________________ Southern California Law Re-
view. 
So.Car.L.J. ______________________ South Carolina Law Journal, 
Columbia. 
So.Car.L.Rev. __________________ South Carolina Law Review. 
So.Dak.L.Rev. __________________ South Dakota Law Review. 
So.IlI.L.J. ________________________ Southern Illinois University 
Law Journal. 
So.U.L.Rev. _____________________ Southern University Law Re-
view (La.). 
Software L.J. __________________ Software Law Journal. 
South Texas L.Rev. __________ South Texas Law Review. 
Southwestern (Cal.) 
L.Rev. _________________________ Southwestern University Law 
Review (Calif.). 
Southwestern (Tex.) L.J. ___ Southwestern Law Journal. 
Sp.Acts ___________________________ Special Acts. 
Sp.Laws __________________________ Special Laws. 
Sp.Sess. __________________________ Special Session. 
S.R. ________________________________ Senate Resolution. 
SSA _______________________________ Social Security Administra-
tion. 
SSL _______________________________ Supplementary Security In-
come Program. 
SSS ________________________________ Selective Service System. 
S.Tex.L.Rev. ____________________ South Texas Law Review. 
St. __________________________________ State; Statutes; State laws or 
acts. 
Stan.EnvtI .L.J. ________________ Stanford Environmental Law 
Journal. 
Stan.J.lnt'l L. __________________ Stanford Journal of Interna-
tional Law. 
Stan.L.Rev. _____________________ Stanford Law Review. 
Stat. _______________________________ Statute(s). 
Stat. at L. _______________________ Statutes at Large, U.S. 
Stetson L.Rev. _________________ Stetson Law Review. 
St. John's J.Legal Com-
mentary ______________________ St. John's Journal of Legal 
Commentary. 
St. John's L.Rev. _____________ St. John's Law Review. 
St. Louis U.L.J. _______________ Saint Louis University Law 
Journal. 
St. Mary's L.J. ________________ St. Mary's Law Journal. 
St. Rep. __________________________ State Reporter. 
Suffolk Transnat'l L.J. _____ Suffolk Transnational Law 
Journal. 
Suffolk U.L.Rev. ______________ Suffolk University Law Re-
view. 
S.U. L.Rev. _______________________ Southern University Law Re-
view (La.). 
Sup. _______________________________ Supplement. 
Sup.Ct. ___________________________ Supreme Court. 
Super.Ct. ________________________ Superior Court. 
Sup.Jud.Ct. _____________________ Supreme Judicial Court. 
Supp. _____________________________ Supplement. 
Supp.Code _______________________ Supplement to Code. 
Supp.Gen.St. ___________________ Supplement to the General 
Statutes. 
Supp.Rev. _______________________ Supplement to the Revision. 
1636 
Supp.Rev.Code _________________ Supplement to the Revised 
Code. 
Supp.Rev.St. ____________________ Supplement to the Revised 
Statutes. 
Sur.Ct. ____________________________ Surrogate Court. 
S.W. _______________________________ South Western Reporter. 
S. W .2d ______________________ � _____ South Western Reporter, Sec-
ond Series. 
Sw.L.J. ___________________________ Southwestern Law Journal. 
Sw.U.L.Rev. ____________________ Southwestern University Law 
Review. 
Syracuse J.lnt'l L. & Com. Syracuse Journal of Interna
tional Law and Commerce. 
Syracuse L.Rev. _______________ Syracuse Law Review. 
T 
T. ___________________________________ Texas Reports. 
T. Marshall L.Rev. __________ Thurgood Marshall Law Re-
view. 
Tax Adviser ____________________ Tax Adviser. 
Tax Law. ________________________ Tax Lawyer. 
Tax L.Rev. ______________________ Tax Law Review. 
T.B.M. ____________________________ Advisory Tax Board Memoran-
dum. 
T.C. ________________________________ United States Tax Court. 
T.C.A. _____________________________ Tennessee Code Annotated. 
T.C.M. ____________________________ Tax Court Memorandum Deci-
sions. 
T.D. _______________________________ Treasury Department Deci-
sion. 
Temp.lnt'l & Comp.L.J. ____ Temple International and 
Comparative Law Journal. 
Temp.L.Rev. ____________________ Temple Law Review. 
Temple L.Q. ____________________ Temple Law Quarterly. 
Temp.Treas.Reg. ______________ Temporary Treasury Regula-
tion. 
Tenn. _____________________________ Tennessee Reports. 
Tenn.App. _______________________ Tennessee Appeals. 
Tenn.B.J. ________________________ Tennessee Bar Journal. 
Tenn.Cas. ________________________ Shannon's Tennessee Cases. 
Tenn.Ch. _________________________ Tennessee Chancery. 
Tenn.Ch.A. _____________________ Tennessee Chancery Appeals. 
Tenn.Civ.A. _____________________ Tennessee Civil Appeals. 
Tenn.Code Ann. ______________ Tennessee Code Annotated. 
Tenn.Crim.App. _______________ Tennessee Criminal Appeals 
Reports. 
Tenn.Leg.Rep. _________________ Tennessee Legal Reporter, 
Nashville, Tenn. 
Tenn.L.Rev. ____________________ Tennessee Law Review. 
Ter.Laws ________________________ Territorial Laws. 
Tex. _______________________________ Texas Reports. 
Tex.App. _________________________ Texas Appeals Reports. 
Tex.B.J. __________________________ Texas Bar Journal. 
Tex.Civ.App. ___________________ Texas Civil Appeals Reports. 
Tex.Code Ann. _________________ Texas Code Annotated. 
Tex.Com.App. __________________ Texas Commission of Appeals. 
Tex.Crim. _______________________ Texas Criminal Reports. 
Tex.Ct.App.R. __________________ Texas Court of Appeals Re-
ports.

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1687 
Tex.lnt'l L.J. ___________________ Texas International Law Jour-
nal. 
Tex.L.J. __________________________ Texas Law Journal. 
Tex.L.Rev. ______________________ Texas Law Review. 
Tex.Rev.Civ.Stat.Ann. ______ Texas Revised Civil Statutes 
Annotated. 
Tex.So.U.L.R ev. _______________ Texas Southern University 
Law Review. 
Tex.Tech L.Rev. ______________ Texas Tech Law Review. 
T.I.R. ______________________________ Technical Information Releas-
es. 
T.M.R. ----c----------------------- Trade Mark Reports. 
T. Marshall L.J. ______________ Thurgood Marshall Law Jour-
nal. 
Tort & Ins.L.J. ________________ Tort & Insurance Law Jour-
nal. 
Trademark Rep. _____ _________ Trademark Reporter. 
Treas.Dec. _______________________ Treasury Decisions. 
Treas.Reg. _______________________ Treasury Regulation. 
Trial ______________________________ Pub. of Assoc. of Trial Lawyers 
of America. 
Tul.Civ.L.F. _____________________ Tulane Civil Law Forum. 
Tul.L.Rev. _______________________ Tulane Law Review. 
Tulsa L.J. _______________________ Tulsa Law JournaL 
TV A _______________________________ Tennessee Valley Authority. 
u 
U.Ark. Little Rock L.J. ____ University of Arkansas at Lit-
tle Rock Law Journal. 
U.B alt.L.Rev. __________________ University of Baltimore Law 
Review. 
U. Bridgeport L.Rev. ________ University of Bridgeport Law 
Review. 
U.C.A. ____________________________ Utah Code Annotated. 
U.C.C. ____________________________ Uniform Commercial Code. 
U .C.C.L.J. _______________________ Uniform Commercial Code 
Law Journal. 
U.C. Davis L.Rev. ____________ University of California Davis 
Law Review. 
U.ChLL.Rev. ___________________ University of Chicago Law Re-
view. 
U.Chi. Legal F. _______________ University of Chicago Legal 
Forum. 
U.Cin.L.R ev. ___________________ University of Cincinnati Law 
Review. 
U.Colo.L.Rev. __________________ University of Colorado Law 
Review. 
UCLA J.Envtl.L. & Pol'y __ UCLA Journal of Environmen
tal Law & Policy. 
UCLA L.R. ______________________ Univ. of Cal. Los Angeles Law 
Review. 
UCLA Pac.Basin L.J. _______ UCLA Pacific Basin Law Jour-
nal. 
U. Dayton L.Rev. _____________ University of Dayton Law Re-
view. 
U.Det.L.R ev. ___________________ University of Detroit Law Re-
view. 
U.Fla.J.L. & Pub.Pol'y _____ University of Florida Journal 
of Law and Public Policy. 
U.Haw.L.Rev. __________________ University of Hawaii Law Re-
view. 
ABBREVIATIONS 
U.Ill.L.R ev. _____________________ University of Illinois Law Re-
view. 
U.Kan.L.R ev. __________________ University of Kansas Law Re-
view. 
U.L.A. ____________________________ Uniform Laws Annotated. 
U.L.P.A. _________________________ Uniform Limited Partnership 
Act. 
UMKC L.Rev. _________________ University of Missouri-Kansas 
City Law Review. 
U.Maine L.Rev. _______________ University of Maine Law Re-
view. 
U.Miami L.Rev. _______________ University of Miami Law Re-
view. 
U.Mo.B., Law Ser. ___________ University of Missouri Bulle-
tin, Law Series. 
UN ________________________________ United Nations. 
Unof. ______________________________ Unofficial, Report. 
UPA ______________________________ Uniform Partnership Act. 
U.Pa.J.l nt'l Bus.L. ___________ University of Pennsylvania 
Journal of International 
Business Law. 
U.Pa.L.R ev. _____________________ Univ. of Pennsylvania Law Re-
view. 
U.Pitt.L.Rev. ___________________ Univ. of Pittsburgh Law Re-
view. 
UPC _______________________________ Uniform Probate Code. 
U.Puget Sound L.Rev. ______ University of Puget Sound 
Law Review. 
Urb.Law. ________________________ Urban Lawyer. 
Urban L.J. ______________________ University of Detroit, Urban 
Law Journal. 
U.Rich.L.R ev. __________________ University of Richmond Law 
Review. 
U.S. _______________________________ United States Supreme Court 
Reports. 
U.S.A viation Rep. ____________ Aviation Reports, U.S. 
U.S.C. _____________________________ United States Code. 
U.S.C.A. _________________________ United States Code Annotated. 
U.S.C.C. & A.N. _______________ United States Code Congres-
sional and Administrative 
News. 
U.S. ConsL _____________________ United States Constitution. 
USDA ____________________________ United States Department of 
Agriculture. 
USES _____________________________ United States Employment 
Service. 
U.S.F. L.Rev. ____________________ University of San Francisco 
Law Review. 
USIA _____________________________ United States Information 
Agency. 
USIS ______________________________ United States Information Ser-
vice. 
USITC ____________________________ United States International 
Trade Commission. 
U.S.L.Ed. ________________________ Lawyers' Ed. Supreme Court 
Reports. 
U.S.L.W. _________________________ United States Law Week. 
U.S.P.Q. __________________________ United States Patent Quarter-
ly. 
USTC _____________________________ United States Tax Cases.

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ABBREVIATIONS 
U.Tol.L.Rev. ____________________ University of Toledo Law Re-
view. 
U.West L.A.L.Rev. ___________ University of West Los Ange-
les Law Review. 
Utah ______________________________ Utah Reports. 
Utah 2d __________________________ Utah Reports, Second Series. 
Utah B.J. ________________________ Urban Bar Journal. 
Utah Code Ann. ______________ Utah Code Annotated. 
Utah L.Rev. ____________________ Utah Law Review. 
v 
V A _________________________________ Department of Veterans Af-
fairs. 
Va. _________________________________ Virginia Reports. 
Va.App. __________________________ Virginia Court of Appeals Re-
ports. 
Va. Cas. ___________________________ Virginia Cases. 
Va. Code Ann. __________________ Code of Virginia Annotated. 
Va.Deco-__________________________ Virginia Decisions. 
Va.Envtl.L.J. ___________________ Virginia Environmental Law 
Journal. 
Va.J.Int'l L. ____________________ Virginia Journal of Interna-
tional Law. 
V a.J.N at.Resources L. ______ Virginia Journal of Natural 
Resources Law. 
Va.Tax Rev. ____________________ Virginia Tax Review. 
Vac'g _____________________________ Vacating. 
Va.L.Rev. ________________________ Virginia Law Review. 
Va.Law. __________________________ Virginia Lawyer. 
Val.U.L.Rev. ___________________ Valparaiso University Law Re-
view. 
V.A.M.S. _________________________ Vernon's Annotated Missouri 
Statutes. 
V.A.M.R. ________________________ Vernon's Annotated Missouri 
Rule. 
Vand.L.R. ______ _ ---------------- Vanderbilt Law Review. 
V.A.T.S. __________________________ Vernon's Annotated Texas 
Statutes. 
V.C.A. ____________________________ Veterans Court of Appeals. 
Vernon's Ann.C.C.P. ________ Vernon's Annotated Texas 
Code of Criminal Procedure. 
Vernon's Ann.Civ.St. _______ Vernon's Annotated Texas 
Civil Statutes. 
Vernon's Ann.P.C. ___________ Vernon's Annotated Texas Pe-
nal Code. 
Vernon's Ann.Rules Civ. 
Proc. ___________________________ Vernon's Annotated Texas 
Rules of Civil Procedure. 
V.I.C. _____________________________ Virgin Islands Code. 
Vill.L.Rev. ______________________ Villanova Law Review. 
V.So-_______________________________ Vermont Statutes. 
V.S.A. ____________________________ Vermont Statutes Annotated. 
Vt. _________________________________ Vermont Reports. 
Vt.L.Rev. ________________________ Vermont Law Review. 
Vt.Stat.Ann. ___________________ Vermont Statutes Annotated. 
V.T.C.A. _________________________ Vernon's Texas Codes Anno-
tated. 
V.T.S.A. __________________________ Vernon's Texas Statutes Anno-
tated. 
1638 
w 
Wake Forest L.Rev. _________ Wake Forest Law Review. 
Wall. ______________________________ Wallace, U.S. Supreme Court 
Reports. 
Wash. _____________________________ Washington Reports. 
Wash.2d _________________________ Washington Reports, Second 
Series. 
Wash. & Lee L.Rev. _________ Washington and Lee Law Re-
view. 
Wash.App. ______________________ Washington Appellate Re-
ports. 
Washburn L.J. ________________ Washburn Law Journal. 
Wash.C.C. _______________________ Washington Circuit Court, 
U.S. 
Wash.Law Rep. _______________ Washington Law Reporter, 
D.C. 
Wash.L.Rev. ____________________ Washington Law Review. 
Wash.Rev.Code ________________ Revised Code of Washington. 
Wash.St.B.News ______________ Washington State Bar News. 
Wash. U .L.Qo-___________________ Washington University Law 
Quarterly (Missouri). 
Wayne L.Rev. _________________ Wayne Law Review. 
W.D. ______________________________ Western District. 
Wheat. ___________________________ Wheaton, U.S. Supreme Court 
Reports. 
Whittier L.Rev. _______________ Whittier Law Review. 
Willamette L.Rev. ___________ Willamette Law Review. 
Wis. _______________________________ Wisconsin Reports. 
Wis.2d ____________________________ Wisconsin Reports, Second 
Series. 
Wis.B.BuIL _____________________ Wisconsin Bar Bulletin. 
Wis.Int'l L.J. ___________________ Wisconsin International Law 
Journal. 
Wis.Law. ________________________ Wisconsin Lawyer. 
Wis.L.N. _________________________ Wisconsin Legal News. 
Wis.L.Rev. ______________________ Wisconsin Law Review. 
Wis.Stat.Ann. __________________ Wisconsin Statutes Annotated. 
Wis.Women's L.J. ____________ Wisconsin Women's Law Jour-
nal. 
Wm. & Mary L.Rev. ________ William and Mary Law Re-
view. 
Wm. Mitchell L.Rev. ________ William Mitchell Law Review. 
W.New Eng.L.Rev. ___________ Western New England Law 
Review. 
Women Law.J. ________________ Women Lawyers Journal. 
Women's Rts.L.Rep. _________ Women's Rights Law Report-
er. 
W.S. _______________________________ Wyoming Statutes. 
W.St.U.L.Rev. _________________ Western State University Law 
Review. 
W.S.A. ____________________________ Wisconsin Statutes Annotated. 
W .Vao-____________________________ West Virginia Reports. 
W.Va.L.Rev. ____________________ West Virginia Law Review. 
W.Va.Law. ______________________ West Virginia Lawyer. 
WVC ______________________________ West Virginia Code. 
Wyo. ______________________________ Wyoming Reports. 
Wyo. ______________________________ Wyoming Statutes. 
y 
Yale J.Int'l L. _________________ Yale Journal of International 
Law. 
Yale L.J. --------________________ Yale Law Journal.

PDF page 1652

THE CONSTITUTION OF THE UNITED STATES 
PREAMBLE 
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure 
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the 
Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the 
United States of America. 
ARTICLE I 
Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, 
which shall consist of a Senate and House of Representatives. 
Section 2. [1] The House of Representatives shall be composed of Members chosen every second 
Year by the People of the several States, and the Electors in each State shall have the Qualifications 
requisite for Electors of the most numerous Branch of the State Legislature. 
[2] No Person shall be a Representative who shall not have attained to the Age of twenty five 
Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an 
Inhabitant of that State in which he shall be chosen. 
[3] Representatives and direct Taxes shall be apportioned among the several States which may be 
included within this Union, according to their respective Numbers, which shall be determined by adding 
to the whole Number of free Persons, including those bound to Service for a Term of Years, and 
excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made 
within three Years after the first Meeting of the Congress of the United States, and within every 
subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of 
Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one 
Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled 
to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New 
York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 
[4] When vacancies happen in the Representation from any State, the Executive Authority thereof 
shall issue Writs of Election to fill such Vacancies. 
[5] The House of Representatives shall chuse their Speaker and other Officers; and shall have the 
sole Power of Impeachment. 
Section 3. [1] The Senate of the United States shall be composed of two Senators from each State, 
chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. 
[2] Immediately after they shall be assembled in Consequence of the first Election, they shall be 
divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be 
vacated at the Expiration of the Second Year, of the second Class at the Expiration of the fourth Year, 
and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second 
Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any 
State, the Executive thereof may make temporary Appointments until the next Meeting of the Legisla
ture, which shall then fill such Vacancies. 
[3] No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been 
nine Years a Citizen of the United States, and wh,o shall not, when elected, be an Inhabitant of that State 
for which he shall be chosen. 
1639

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UNITED STATES CONSTITUTION 1640
[4] The Vice President of the United States shall be President of the Senate, but shall have no Vote,
unless they be equally divided.
[5] The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of
the Vice President, or when he shall exercise the Office of President of the United States.
[6] The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose,
they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members
present.
[7] Judgment in Cases of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment,
according to Law.
Section 4. [1] The Times, Places and Manner of holding Elections for Senators and Representa
tives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by
Law make or alter such Regulations, except as to the Places of chusing Senators.
[2] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first
Monday in December, unless they shall by Law appoint a different Day.
Section 5. [1] Each House shall be the Judge of the Elections, Returns, and Qualifications of its
own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number
may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in
such Manner, and under such Penalties as each House may provide.
[2] Each House may determine the Rules of its Proceedings, punish its Members for disorderly
Behavior, and, with the Concurrence of two thirds, expel a Member.
[3] Each House shall keep a Journal of its Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members
of either House on any question shall, at the Desire of one fifth of those Present, be entered on the
Journal.
[4] Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn
for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section 6. [1] The Senators and Representatives shall receive a Compensation for their Services, to
be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the
Session of their respective Houses, and in going to and returning from the same; and for any Speech or
Debate in either House, they shall not be questioned in any other Place.
[2] No Senator or Representative shall, during the Time for which he was elected, be appointed to
any civil Office under the Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been increased during such time and no Person holding any Office under
the United States, shall be a Member of either House during his Continuance in Office.
Section 7. [1] All Bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with Amendments as on other Bills.
[2] Every Bill which shall have passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States; If he approve he shall sign it, but if
not he shall return it, with his Objections to the House in which it shall have originated, who shall enter
the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two
thirds of that House shall agree to pass the Bill, it shall be sent together with the Objections, to the other
House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall
become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays,
and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each

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1641 UNITED STATES CONSTITUTION 
House respectively. If any Bill shall not be returned by the President within ten Days (Sundays 
excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had 
signed it, unless the Congress by their Adjournment prevent its Return in which Case it shall not be a 
Law. 
[3] Every Order, Resolution, or Vote, to Which the Concurrence of the Senate and House of 
Representatives may be necessary (except on a question of Adjournment) shall be presented to the 
President of the United States; and before the Same shall take Effect, shall be approved by him, or being 
disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, 
according to the Rules and Limitations prescribed in the Case of a Bill. 
Section 8. [1] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and 
Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; 
but all Duties, Imposts and Excises shall be uniform throughout the United States; 
[2] To borrow money on the credit of the United States; 
[3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian 
Tribes; 
[4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankrupt
cies throughout the United States; 
[5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights 
and Measures; 
[6] To provide for the' Punishment of counterfeiting the Securities and current Coin of the United 
States; 
[7] To Establish Post Offices and Post Roads; 
[8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors 
and Inventors the exclusive Right to their respective Writings and Discoveries; 
[9] To constitute Tribunals inferior to the supreme Court; 
[10] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against 
the Law of Nations; 
[11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on 
Land and Water; 
[12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer 
Term than two Years; 
[13] To provide and maintain a Navy; 
[14] To make Rules for the Government and Regulation of the land and naval Forces; 
[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrec
tions and repel Invasions; 
[16] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of 
them as may be employed in the Service of the United States, reserving to the States respectively, the 
Appointment of the Officers, and the Authority of training the Militia according to the discipline 
prescribed by Congress; 
[17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten 
Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of 
the Government of the United States, and to exercise like Authority over all Places purchased by the 
Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, 
Arsenals, dock-Yards, and other needful Buildings;-And

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UNITED STATES CONSTITUTION 1642 
[IS] To make all Laws which shall be necessary and proper for carrying into Execution the 
foregoing Powers, and all other Powers vested by this Constitution in the Government of the United 
States, or in any Department or Officer thereof. 
Section 9. [1] The Migration or Importation of Such Persons as any of the States now existing 
shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight 
hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for 
each Person. 
[2] The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of 
Rebellion or Invasion the public Safety may require it. 
[3] No Bill of Attainder or ex post facto Law shall be passed. 
[4] No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or 
Enumeration herein before directed to be taken. 
[5] No Tax or Duty shall be laid on Articles exported from any State. 
[6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one 
State over those of another: nor shall Vessels bound to, or from, one State be obliged to enter, clear, or 
pay Duties in another. 
[7] No money shall be drawn from the Treasury, but in Consequence of Appropriations made by 
Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be 
published from time to time. 
[S] No Title of Nobility shall be granted by the United States: And no Person holding any Office of 
Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, 
Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. 
Section 10. [1] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of 
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a 
Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the 
Obligation of Contracts, or grant any Title of Nobility. 
[2] No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or 
Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce 
of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of 
the United States; and all such Laws shall be sub ject to the Revision and Control of the Congress. 
[3] No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships 
of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign 
Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. 
ARTICLE II 
Section 1. [1] The executive Power shall be vested in a President of the United States of America. 
He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for 
the same Term, be elected, as follows: 
[2] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of 
Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled 
in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under 
the United States, shall be appointed an Elector. 
[3] The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom 
one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of 
all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, 
and transmit sealed to the Seat of the Government of the United States, directed to the President of the 
Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives,

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1648 UNITED STATES CONSTITUTION 
open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number 
of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; 
and if there be more than one who have such Majority, and have an equal Number of Votes, then the 
House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person 
have a Majority, then from the five highest on the List the said House shall in like Manner chuse the 
President. But in chusing the President, the Votes shall be taken by States the Representation from 
each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two 
thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after 
the Choice of the President, the Person having the greater Number of Votes of the Electors shall be the 
Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse 
from them by Ballot the Vice President. 
[4] The Congress may determine the Time of chusing the Electors, and the Day on which they shall 
give their Votes; which Day shall be the same throughout the United States. 
[5] No person except a natural born Citizen, or a Citizen of the United States, at the time of the 
Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be 
eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen 
Years a Resident within the United States. 
[6] In case of the removal of the President from Office, or of his Death, Resignation or Inability to 
discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the 
Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the 
President and Vice President, declaring what Officer shall then act as President, and such Officer shall 
act accordingly, until the Disability be removed, or a President shall be elected. 
[7] The President shall, at stated Times, receive for his Services, a Compensation, which shall 
neither be increased nor diminished during the Period for which he shall have been elected, and he shall 
not receive within that Period any other Emolument from the United States, or any of them. 
[8] Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 
��I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, 
and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." 
Section 2. [1] The President shall be Commander in Chief of the Army and Navy of the United 
States, and of the militia of the several States, when called into the actual Service of the United States; 
he may require the Opinion, in writing, of the principal Officer in each of the Executive Departments, 
upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant 
Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. 
[2] He shall have Power, by and with the Advice and Consent of the Senate to make Treaties, 
provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice 
and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the 
Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise 
provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment 
of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the 
Heads of Departments. 
[3] The President shall have Power to fill up all Vacancies that may happen during the Recess of 
the Senate, by granting Commissions which shall expire at the End of their next Session. 
Section 3. He shall from time to time give to the Congress Information of the State of the Union, 
and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 
may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement 
between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall 
think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws 
be faithfully executed, and shall Commission all the Officers of the United States.

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UNITED STATES CONSTITUTION 1644
Section 4. The President, Vice President and all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
ARTICLE III
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services a Compensation, which shall not be diminished during their Continu
ance in Office.
Section 2. [1] The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of
admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to
Controversies between two or more States;-between a State and Citizens of another State;-between
Citizens of different States;-between Citizens of the same State claiming Lands under the Grants of
different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
[2] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a
State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
[3] The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have been committed; but when not committed within
any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3. [1] Treason against the United States, shall consist only in levying War against them,
or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
[2] The Congress shall have Power to declare the Punishment of Treason, but no Attainder of
Treason shall work Corruption of ' Blood, or Forfeiture except during the Life of the Person attainted.
ARTICLE IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner
in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2. [1] The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
[2] A Person charged in any State with Treason, Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on demand of the executive Authority of the State from
which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
[3] No Person held to Service or Labour in one State, under the Laws thereof, escaping into another,
shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Section 3. [1] New States may be admitted by the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the
Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States
concerned as well as of the Congress.
[2] The Congress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States; and nothing in this

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1645 UNITED STATES CONSTITUTION 
Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular 
State. 
Section 4. The United States shall guarantee to every State in this Union a Republican Form of 
Government, and shall protect each of them against Invasion; and on Application of the Legislature, or 
of the Executive (when the Legislature cannot be convened) against domestic Violence. 
ARTICLE V 
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amend
ments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, 
shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and 
Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several 
States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be 
proposed by the Congress; Provided that no Amendment which may be made prior to the Year One 
thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth 
Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage 
in the Senate. 
ARTICLE VI 
[1] All Debts contracted and Engagements entered into, before the Adoption of this Constitution 
shall be as valid against the United States under this Constitution, as under the Confederation. 
[2] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; 
and all Treaties made, or which shall be made, under the Authority of the United States, shall be the 
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the 
Constitution or Laws of any State to the Contrary notwithstanding. 
[3] The Senators and Representatives before mentioned, and the Members of the several State 
Legislatures, and all executive and judicial Officers, both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be 
required as a Qualification to any Office or public Trust under the United States. 
ARTICLE VII 
The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this 
Constitution between the States so ratifying the Same. 
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED 
STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES 
OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTI
TUTION. 
AMENDMENT I [1791] 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances. 
AMENDMENT II [1791] 
A well regulated Militia, being necessary to the security of a free State, the right of the people to 
keep and bear Arms, shall not be infringed.

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UNITED STATES CONSTITUTION 1646 
AMENDMENT III [1791] 
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor 
in time of war, but in a manner to be prescribed by law. 
AMENDMENT IV [1791] 
The right of the people to be secure in their persons, houses, papers, and effects, against unreason
able searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons 
or things to be seized. 
AMENDMENT V [1791] 
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger; nor shall any person be subject for the 
same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be 
a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor 
shall private property be taken for public use, without just compensation. 
AMENDMENT VI [1791] 
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to 
be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his 
favor, and to have the Assistance of Counsel for his defence. 
AMENDMENT VII [1791] 
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial 
by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common law. 
AMENDMENT VIII [1791] 
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments 
inflicted. 
AMENDMENT IX [1791] 
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage 
others retained by the people. 
AMENDMENT X [1791 ] 
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people. 
AMENDMENT XI [1798] 
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or 
Subjects of any Foreign State.

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1847 UNITED STATES CONSTITUTION 
AMENDMENT XII [1804] 
The Electors shall meet in their respective states and vote by ballot for President and Vice-Presi
dent, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall 
name in their ballots the person voted for as President, and in distinct ballots the person voted for as 
Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons 
voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, 
and transmit sealed to the seat of the government of the United States, directed to the President of the 
Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates and the votes shall then be counted;-The person having the greatest number of 
votes for President, shall be the President, if such number be a majority of the whole number of Electors 
appointed; and if no person have such majority, then from the persons having the highest numbers not 
exceeding three on the list of those voted for as President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, 
the representation from each state having one vote; a quorum for this purpose shall consist of a member 
or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. 
And if the House of Representatives shall not choose a President whenever the right of choice shall 
devolve upon them before the fourth day of March next following, then the Vice-President shall act as 
President, as in the case of the death or other constitutional disability of the President.-The person 
having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no person have a majority, then from the two 
highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall 
consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be 
necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible 
to that of Vice-President of the United States. 
AMENDMENT XIII [1865] 
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the 
party shall have been duly convicted, shall exist within the United States, or any place subject to their 
jurisdiction. 
Section 2. Congress shall have power to enforce this article by appropriate legislation. 
AMENDMENT XIV [1868] 
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of the laws. 
Section 2. Representatives shall be apportioned among the several States according to their 
respective numbers, counting the whole number of persons in each State excluding Indians not taxed. 
But when the right to vote at any election for the choice of electors for President and Vice President of 
the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the 
members of the Legislature thereof, is denied to any of the male inhabitants of such State, being 
twenty-one years of age, and citizens of the United States, or in any way abridged, except for 
participation in rebellion, or other crime, the basis of representation therein shall be reduced in the 
proportion which the number of such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and 
Vice President, or hold any office, civil or military, under the United States, or under any State, who 
having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a 
member of any State legislature, or as an executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or

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UNITED STATES CONSTITUTION 1648
given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts
incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss
or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.
AMENDMENT XV [1870]
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XVI [19 13]
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived,
without apportionment among the several States, and without regard to any census or enumeration.
AMENDMENT XVII [1913 ]
[1] The Senate of the United States shall be composed of two Senators from each State, elected by
the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall
have the qualifications requisite for electors of the most numerous branch of the State legislatures.
[2] When vacancies happen in the representation of any State in the Senate, the executive
authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature
of any State may empower the executive thereof to make temporary appointments until the people fill
the vacancies by election as the legislature may direct.
[3] This amendment shall not be so construed as to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
AMENDMENT XVIII [1919]
Section 1. After one year from the ratification of this article the manufacture, sale, or transporta
tion of intoxicating liquors within, the importation thereof into, or the exportation thereof from the
United States and all territory subject to the · jurisdiction thereof for beverage purposes is hereby
prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article
by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of the several States, as provided in the Constitution, within seven
years from the date of the submission hereof to the States by the Congress.
AMENDMENT XIX [1920]
[1] The right of citizens of the United States to vote shall not be denied or abridged by the United
States or by any State on account of sex.
[2] Congress shall have power to enforce this article by appropriate legislation.

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1649 UNITED STATES CONSTITUTION
AMENDMENT XX [1933]
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in
which such terms would have ended if this article had not been ratified; and the terms of their successors
shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at
noon on the 3d day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect
shall have died, the Vice President elect shall become President. If the President shall not have been
chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to
qualify, then the Vice President elect shall act as President until a President shall have qualified; and
the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act as President, or the manner in which one who is to act
shall be selected, and such person shall act accordingly until a President or Vice President shall have
qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice shall have
devolved upon them, and for the case of the death of any of the persons from whom the Senate may
choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of
this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven years from the
date of its submission.
AMENDMENT XXI [1933]
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby
repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United
States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by conventions in the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
AMENDMENT XXII [1951]
Section 1. No person shall be elected to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for more than two years of a term to which
some other person was elected President shall be elected to the office of President more than once. But
this Article shall not apply to any person holding the office of President when this Article was proposed
by the Congress, and shall not prevent any person who may be holding the office of President, or acting
as President, during the term within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven years from the
date of its submission to the States by the Congress.

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UNITED STATES CONSTITUTION 1650
AMENDMENT XXIII [1961]
Section 1. The District constituting the seat of Government of the United States shall appoint in
such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it were a State, but in no event
more than the least populous state; they shall be in addition to those appointed by the states, but they
shall be considered, for the purposes of the election of President and Vice President, to be electors
appointed by a state; and they shall meet in the District and perform such duties as provided by the
twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XXIV [1964]
Section 1. The right of citizens of the United States to vote in any primary or other election for
President or Vice President, for electors for President or Vice President, or for Senator or Representative
in Congress, shall not be denied or abridged by the United States, or any State by reason of failure to pay
any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XXV [1967]
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice
President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of
Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a written declaration to the contrary, such powers
and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide, transmit to the President
pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that
the President is unable to discharge the powers and duties of his office, the Vice President shall
immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration that no inability exists, he shall resume
the powers and duties of his office unless the Vice President and a majority of either the principal
officers of the executive department or of such other body as Congress may by law provide, transmit
within four days to the President pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration and the President is unable to discharge the powers and duties
of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that
purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written
declaration, or, if Congress is not in session, within twenty-one days after Congress is required to
assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the
power and duties of his office, the Vice President shall continue to discharge the same as Acting
President; otherwise, the President shall resume the powers and duties of his office.
AMENDMENT XXVI [1971]
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote
shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

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TIME CHART OF THE UNITED STATES 
SUPREME COURT t 
The following table is designed to aid the user in identifying the composition of the Court at any 
given time in American history. Each listing .is headed by the Chief Justice, whose name is italicized. 
Associate Justices are listed following the Chief Justice in order of seniority. In addition to dates of 
appointment, the table provides information on political party affiliation. Following each Justice is a 
symbol representing his party affiliation at the time of appointment: 
F = Federalist W = Whig 
DR = Democratic Republican 
(Jeffersonian) 
R = Republican 
I = Independent 
D = Democrat 
17 89 17 96-97 18 06 18 28-28 
Jay (F) Ellsworth (F) J. Marshall (F) J. Marshall (F) 
J. Rutledge (F) Cush ing (F) Cushing (F) Wash in gton (F) 
Cushing (F) Wilson (F) S. Chase (F) W. Joh nson (DR) 
Wi lson (F) Iredell (F) Wash in gton (F) Duval (DR) 
Blai r (F) Paterson (F) W. Joh nson (DR) Story (DR) 
S. Chase (F) Liv ingston (DR) Thompson (DR) 
17 90-91 Trimble (DR) 
Jay (F) 17 98-99 18 07-1 0 
J. Rutledge (F) Ellsworth (F) .1. Marshall (F) 18 29 
. Cushin g (F) Cushing (F) Cushing (F) J. Marshall (F) 
Wi lson (F) Iredell (F) S. Cha se (F) Washi ngton (F) 
Bla i r (F) Paterson (F) Washi ngton (F) W. Johnson (DR) 
Iredell (F) S. Cha se (F) W. Joh nson (DR) Duval (DR) 
Wash ing ton (F) Liv in gston (DR) Sto ry (DR) 
17 92 18 00 Todd (DR) Thom pson (DR) 
Jay (F) McLean (D) 
Cushing (F) Ellsworth (F) 
Wils on (F) Cushing (F) 18 11 - 22 18 30-34 
Blai r (F) Paterson (F) J. Marshall (F) J. Marshall (F ) 
Iredell (F) S. Chase (F) Wash in gton (F) W. Johns on (DR) 
T. Joh nson (F) Washing ton (F) W. Joh nson (DR) Duval (DR) 
Moore (F) Livings ton (DR) Story (DR) 
17 93-94 
Todd (DR) Thompson (DR) 
18 01- 03 Duval (DR) McL ean (D) Jay (F) J. Marshall (F) Story (DR) Bal dwi n (D) Cush ing (F) Cushing (F) 
Wi lson (F) Paterson (F) 18 23-25 18 35 Bla i r (F) S. Cha se (F ) J. Marshall (F) J. Marshall (F) Iredell (F) Washi ngton (F) Washi ngton (F) Duval (DR) p.aterson (F) Moore (F) W. John son (DR) Story (DR) 
18 04-05 Todd (DR) Thompson (DR) 
17 95 Duval (DR) McLe an (D) 
J. Rutledge (F) · J. Marshall (F) Story (DR) Bal dwin (D) 
Cushin g (F) Cushing (F) Thom pson (DR) Wayne (D) 
Wi lson (F) Paterson (F) 
Blai r (F) S. Cha se (F) 
Iredell (F) Washing ton (F) 
Paterson (F) W. Joh nson (DR) 
t Source: Ducat and Chase, Constitutional Interpretation, 4th Edition, published in 1988 by West Publishing Co. 
1651

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U.S. SUPREME COURT 1652 
18 36 18 51- 52 18 64-65 18 77-79 
Tane y (D) Taney (D) S. P. Chase (R) Waite (R) 
Story (DR) McL ean (D) Wayne (D) Cl ifford (D) 
Thom pson (DR) Wayne (D) Catron (0) * * Swayne (R) 
McL ean (D) Catro n (D) Ne lson (D) Mi ller (R) 
B81dwin (D) McKinle y (D) Grier (D) Field (D) 
Wayne (D) Daniel (D) Clif ford (D) Strong (R) 
Swa yne (R ) Bradle y (R) Barbour (D) Ne lson (D) Miller (R) Hunt (R) 
18 37-40 
Grier (D) Davis (R) Harlan (K y.) (R) 
Taney (D) Curtis (W) Field (D) 
18 80 Story (DR) 18 53-57 18 66 Waite (R) Thomp son (DR) Ta ney (D) S. P. Chase (R) Clif ford (D) McL ean (D) McL ean (D) Wayne (0) * * Swa yne (R) Baldwi n (D) Wayne (D) Nels o n (D) Mil ler (R) 
Wayne (D) Catron (D) Grier (D) Field (D) 
Barbour (D) Daniel (D) Cl iffo rd (D) Brad ley (R) 
Catron (D) Nelson (D) Swa yne (R) Hunt (R) 
McKin ley (D) Grier (D) Mill er (R) Harlan (K y.) (R) 
Curtis (W) Davis (R) Woods (R) 
18 41- 43 Campbell (D) Field (D) 
Taney (D) 18 58-60 18 81 
Story (DR) 18 67-69 Waite (R) 
Thom pson (DR) Taney (D) S. P. Chase (R) Mill er (R) 
McLean (D) McLean (D) Nelson (D) Field (D) 
B8 1d wi n (D) 
Wayne (D) Grier (D) Bradle y (R) Catron (D) Clif ford (D) Hunt (R) Wayne (D) Daniel (0) Swa yne (R) Harlan (K y.) (R) Catron (D) Nelson (D) Mi ller (R) Woods (R) McKinle y (D) Grier (D) Davis (R) Matthews (R) 
Danie l (D) Campbell (D) Field (D) Gray (R) Cl ifford (D) 
18 44 18 61 18 70-71 18 82-87 
Tane y (D) 
Taney (D) S. P. Chase (R) Waite (R) 
Story (DR) McL ean (D) Ne lso n (D) Miller (R) 
McL ean (D) Wayne (D) Cl ifford (D) Field (D) 
Bal dwi n (D) Catron (D) Sway ne (R) Bradle y (R) 
Wayne (D) Ne lson (D) Miller (R) Ha rlan (K y.) (R) 
Catron (D) Grier (D) Davis (R) Woods (R) 
McKin ley (D) Campb el l (D) Field (D) Ma tthews (R) 
DC'lniel (D) Clif ford (D) Strong (R) Gray (R) 
Brad ley (R) Bla tchford (R) 
18 45 18 62 
18 72-73 18 88 Tane y (D) Taney (D ) 
S. P. Chase (R) Fuller (D) McL ean (D) Wayne (D) Clif ford (D) Mill er (R) Wayne (D ) Catro n (D) 
Ne lson (D) Swa yne (R) Field (D) 
Catron (D) Grier (D) Miller (R) Brad ley (R) 
McKi nle y (D) Clif ford (D) Davis (R) Ha rlan (K y.) (R) 
Danie l (D) Swa yne (R) Field (D) Matthews (R) 
Ne lson (D) Mill er (R) Strong (R) Gray (R) 
Wood bury (D) Davis (R) Brad ley (R) Bla tchford (R) 
Hunt (R) L. Lamar (D) 
18 46-50 18 63 
Taney (D) Tane y (D) 18 74-76 18 89 
McL ean (D) Wayne (0) Waite (R) Fuller (D) 
Wayne (D) Catron (D) Clif ford D) Mi ller (R) 
Catron (D) Nelson (D) Swa yne (R) Field (D) 
McKin ley (D) Grier (D) Miller (R) Bradle y (R) 
Danie l (D) Cl ifford (D) Davis (R) Ha rlan (Ky.) (R) 
Swa yne (R) Field (D) Gray (R) Ne lso n (D) Miller (R) Strong (R) Bla tchford (R) Wood bury (D) Davis (R) Bradle y (R) L. Lamar (D) 
Grier (D ) Field (D) Hunt (R ) Brewer (R)

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1653 u.s. SUPREME COURT 
18 90-91 19 02 1914 -1 5 19 30-31 
Fuller (D) Fuller (D) E. White (D) Hughes (R) 
Field (D) Harlan (K y.) (R) Mc Kenna (R) Hol mes (R) 
Brad ley (R) Brewer (R) Hol mes (R) Van Oevanter (R) 
Harlan (K y.) (R) Brown (R) Day (R) McRe ynolds (D) 
Gray (R) Shir as (R) Hughes (R) Brandeis (R) 
Bla tchford (R) E. Whit e (D) Van Oeva nter (R) Sutherl and (R) 
L. Lamar (D) Peckham (D) J. Lamar (D) Butler (D) 
Brewer (R) McK enna (R) Pitne y (R) Stone (R) 
Brown (R) Hol mes (R) McReynolds (D) Roberts (R) 
18 92 19 03-05 19 1 6-20 19 32-36 
Fuller (D) Fuller (D) E. White (D) Hughes (R) 
Field (D) Ha rlan (Ky.) (R) McK enna (R) Van Oevanter (R) 
Harlan (K y.) (R) Brewer (R) Hol mes (R) McRe ynolds (D) 
Gray (R) Brown (R) Day (R) Brandeis (R) 
Bla tchford (R) E. Wh ite (D) Van Oevanter (R) Suthe rland (R) 
L. Lamar (D) Peckham (D) Pitney (R) Butler (0) 
Brewer (R) McK enna (R) McReynold s (D) Stone (R) 
Brown (R) Hol mes (R) Brandeis (R) · • * Roberts (R) 
Shi ras (R) Day (R) Clarke (D) Cardozo (D) 
18 93 19 06-08 19 21 19 37 
Fuller (D) Fuller (D) Taft (R) Hughes (R) 
Field (D) Harlan (K y.) (R) McKen na (R) McRe ynolds (D) 
Harlan (K y.) (R) Brewer (R) Hol mes (R) Brandeis (R) 
Gray (R) E. Whit e (D) Day (R) Sutherla nd (R) 
Bla tchford (R) Peckham (D) Van Oevanter (R) Butler (D) 
Brewer R) McK enna (R) Pitne y (R) Stone (R) 
Brown (�) Hol mes (R) McRe ynolds (D) Roberts (R) 
Shi ras (R) Day (R) Brandeis (R) Cardozo (0) 
H. Jack son (D) Moody (R) Clarke (D) Black (0) 
18 94 19 09 19 22 19 38 
Fuller (D) Fuller (D) Taft (R) Hughes (R) 
Field (D) Harlan (Ky.) (R) McK enna (R) McRe ynolds (0) 
Harlan (K y.) (R) Brewer (R) Hol mes (R) Brandeis (R) 
Gray (R) E. Whit e (D) Van Oevant er (R) Butler (D) 
Brewer (R) McK enna (R) Pitne y (R) Stone (R) 
Brown (R) Hol mes (R) McRe ynolds (D) Roberts (R) 
Shir as (R) Day (R) Brandeis (R) Cardozo (D) 
H. Jack son (D) Moody (R) Sutherland (R) Bla ck (0) 
E. White (D) Lurton (D) Butler (D) Reed (0) 
18 95-97 19 10-1 1 19 23-24 19 39 
Fuller (D) E. White (D) Taft (R) Hughes (R) 
Field (D) Harlan (K y.) (R) McK enna (R) McRe ynolds (0) 
Ha rlan (K y.) (R) McK enna (R) Hol mes (R) Butler (D) 
Gray (R) Hol mes (R) Van Oevanter (R) Stone (R) 
Brewer (R) Oay (R) McRa ynolds (D) Roberts (R) 
Brown (R) Lurton (D) Brandeis (R) Black (D) 
Shi ras (R) Hughes (R) Sutherland (R) Reed (D) 
E. White (D) Van Oevanter (R) Butler (D) Frank furter (I) 
Peckham (D) J. Lamar (D) Sa nford (R) Douglas (D) 
18 98-1 901 19 12 -1 3 19 25-29 19 40 
Fuller (D) E. White (D) Taft (R) Hughes (R) 
Harlan (K y.) (R) McK enna (R) Hol mes (R) McReynolds (D) 
Gray (R) Hol mes (R) Van Oeva nter (R) Stone (R) 
Brewer (R) Day (R) McRe ynolds (D) Roberts (R) 
Brown (R) Lurton (D) Brandeis (R) Black (D) 
Shir as (R) Hughes (R) Suthe rland (R) Reed (D) 
E. Whit e (D) Van Oeva nter (R) Butler (D) Frank furter (I) 
Peckham (D) J. Lamar (D) Sanfor d (R) Douglas (0) 
McK enna (R) Pitney (R), Stone (R) Murphy (D)

PDF page 1667

u.s. SUPREME COURT 1654 
19 41- 42 R. Ja ckson (D) 19 65-67 B. Whit e (D) 
Stone (R) Burton (R) Warren (R) T. Ma rshall (D) 
Roberts (R) Clark (D) Black (D) Bla ckmun (R) 
Black (D) Min ton (D) Douglas (D) 
Reed (0) 
19 55 
Cla rk (0) 19 72-75 
Frank furter (I) Ha rlan (N.Y.) (R) Burger (R) Douglas (D) Warren (R) Brennan (0) Douglas (0) Murphy (0) Bla ck (0) Stewart (R) Brennan (0) Byrnes (0) Reed (D) B. White (0) Stewart (R) R. Ja ckson (D) Fran kfurter (I) Fortas (D) B. Whit e (0) 
19 43-44 
Douglas (0) T. Ma rshall (0) Burton (R) 19 67-69 Bla ckmun (R) Stone (R) Cl ark (0) Warren (R) Powel l (0) Roberts (R) Mi nton (D) 
Bla ck (0) Ha rlan (N .Y.) (R) Black (0) Rehnqu ist (R) 
Reed (0) Douglas (0) 
Frank furter (I) 19 56 Harlan (N .Y.) (R) 19 75-81 
Douglas (D) Warren (R) Brennan (D) 
Stewart (R) Burger (R) Murphy (0) Black (0) B. Whit e (0) Brennan (0) R. Ja ckson (D) Reed (0) Fortas (0) Stewart (R) W. Rutledge (0) Frank furter (I) T. Marshal l (0) B. Wh ite (0) 
19 45 Oouglas (D) T. Marshal l (0) 
Stone (R) Burton (R) 19 69 Black mun (R) 
Bl ack (D) Cl ark (0) Burger (R) Powel l (0) 
Reed (0) Harlan (N .Y.) (R) Black (0) Rehnqu ist (R) 
Frank furter (I) Brennan (0) Douglas (0) Stevens (R) 
Douglas (D) 19 57 
Ha rlan (N .Y.) (R) 
Murphy (0) Brennan (0) 19 81- 1 986 
R. Ja ckson (D) Warren (R) Stewart (R) Burger (R) 
W. Rutledge (0) Black (0) B. White (0) Brennan (0) 
Burton (R) Frank furter (I) Fortas (D) B. White (D) Douglas (0) T. Marshall (D) T. Marshall (D) 
19 46-48 Burton (R) Blackmun (R) 
Vinson (D) Clark (D) 19 69-70 Powell (D) 
Black (0) Ha rlan (N.Y.) (R) Burger (R) Rehnqui st (R) 
Reed (D) Brennan (D) Black (0) J. Stevens (R) 
Frank fu rter (I) Whit taker (R) Douglas (0) O'Connor (R) 
Douglas (D) Harlan (N. Y.) (R) 
Murphy (D) 19 58-61 Brennan (0) 19 86-1988 R. Ja ckson (0) Warren (R) Stewart (R) Rehnquist (R) W. Rutledge (D) Black (0) B. White (0) 
Burton (R) Frank furter (I) T. Marshal l (0) Brennan (D) 
B. White (0) 
19 49-52 Douglas (D) T. Marshall (0) 
Vinson (D) Clark (D) 19 70 Blackmun (R) Harlan (N .Y.) (R) Burger (R) Black (D) Brennan (D) Powell (0) 
Reed (D) Black (0) J. Stevens (R) 
Frank furter (I) Whit taker (R) Dougla s (D) O'Connor (R ) 
Douglas (D) Stewart (R) Harlan (N. Y.) (R) Scalia (R) 
R. Ja ckson (D) Brennan (0) 
Burton (R) 19 62-65 Stewart (R) 19 88-
Clark (D) Warren (R) B. Wh ite (0) 
Rehnquist (R) T. Ma rshall (0) Mi nton (0) Bla ck (0) Bla ckmun (R) Brennan (0) 
Douglas (D) B. White (0) 
19 53-54 Clark (0) T. Marshall (0) 
Warren (R) Harlan (N.Y.) (R) 19 71 Blackmun (R) 
Black (D) Brennan (D) Burger (R) J. Stevens (R) 
Reed (D) Stewart (R) Douglas (D) O'Connor (R) 
Frank furte r (I) B. Wh ite (0) Brennan (0) Scalia (R ) 
Douglas (D) Gold berg (D) Stewart (R) Kennedy (R) 
* Rutledge was a recess appointment whose confirmation was rejected by the Senate after the 1795 Term. 
** Upon the death of Catron in 1865 and Wayne in 1867 their positions were abolished according to a congressional act 
of 1866. The Court's membership was reduced to eight until a new position was created by Congress in 1869. The 
new seat has generally been regarded as a re-creation of Wayne's seat. 
*** According to Professor Henry Abraham, "Many-and with some justice--consider Brandeis a Democrat; however, 
he was in fact a registered Republican when nominated." Freedom and the Court 455 (3d ed., 1977).

PDF page 1668

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PDF page 1670

TABLE OF BRITISH REGNAL YEARS 
Length 
Sovereign Accession of reign 
William I _______________________________________________ Oct. 14, 1066 _____________________________ 21 
William II ______________________________________________ Sept. 26, 1087 ____________________________ 13 
Henry L ________________________________________________ _ Aug. 5, 11 00 ______________________________ 36 
Stephen _________________________________________________ Dec. 26, 113 5 _____________________________ 19 
Henry II ________________________________________________ Dec. 19, 11 54 _____________________________ 35 
Richard I ______ ____________ _________ ________ ____________ Sept. 23, 11 89 ____________________________ 10 
John ______________________________________________________ May 27, 11 99 _____________________________ 18 
Henry III ______ ________________ _________________________ Oct. 28, 1216 _____________________________ 57 
Edward L __________________________ _____________________ Nov. 20, 1272 ____________________________ 35 
Edward IL ___________________ _________________________ __ July 8, 1307 ______________________________ 20 
Edward III _____________________________________________ Jan. 25, 1326 _____________________________ 51 
Richard II _______________________________________ _______ June 22, 1377 ____________________________ 23 
Henry IV _______________________________________________ Sept. 30, 1399 ____________________________ 14 
Henry V ________________________________________________ March 21, 1413 __________________________ 10 
Henry VI ______ _________________________________________ Sept. 1, 1422 _____________________________ 39 
Edward IV ________________ _____________________________ March 4, 1461 ___________________________ 23 
Edward V ______________________________________________ April 9, 1483 _____________________________ -
Richard III _____________________________________________ June 26, 1483 _____________________________ 3 
Henry VII ______________________________________________ Aug. 22, 1485 ____________________________ 24 
Henry VIII _______ ______________________________________ April 22, 1509 ___________________________ 38 
Edward VI _____________________________________________ Jan. 28, 1547 ______________________________ 7 
Mary _____________________________________________________ July 6, 1553 _______________________________ 6 
Elizabeth ____________ ________________ ____________________ Nov. 17, 1558 ___________________________ A5 
James 1 _____________________________________________ _____ March 24, 1603 __________________________ 23 
Charles I ________________________________________________ March 27, 1625 __________________________ 24 
The Commonwealth ________________________________ Jan. 30, 1649 _____________________________ 11 
Charles IL ______________________________________________ May 29, 1660 _____________________________ 37 
James IL ________________________________________________ Feb. 6, 1685 _______________________________ 4 
William and Mary __________________________________ Feb. 13, 1689 _____________________________ 14 
Anne _______ ____________________ ____________________ ______ March 8, 1702 ___________________________ 13 
George L ________________________________________________ Aug. 1, 1714 ______________________________ 13 
George IL ____________________________________________ ___ June 11, 1727 ____________________________ 34 
George III ______________________________________________ Oct. 25, 1760 _____________________________ 60 
George IV ______________________________________________ Jan. 29, 1820 _____________________________ 11 
William IV _____________________________________________ June 26, 1830 _____________________________ 7 
Victoria _________________________________________________ J une 20, 1837 ____________________________ 64 
Edward VII ____________________________________________ Jan. 22, 1901 ______________________________ 9 
George V _______________________________________________ May 6, 1910 ______________________________ 25 
Edward VIII ___________________________________________ J an. 20, 1936 ______________________________ 1 
George VI ______________________________________________ Dec. 11, 1936 ____________ _________________ 15 
Elizabeth II ____________________________________________ Feb. 6, 1952 _________ _____________________ -
t 
1657

Blacks-Law-Dictionary-6th-edition

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